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Nanhaki Mian, Amin Mian v/s State of Bihar

    Criminal Appeal No.653 Of 2005(D.B.)

    Decided On, 01 April 2010

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA & THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH

    For the Appearing Parties: Dev Kumar Pandey, Manoj Kumar, Ashwini Kumar Sinha, Advocates.



Judgment Text

S.K. SHARMA AND D.K. SINGH,JJ.

(1.) The sole appellant, Nanhaki Mian, has preferred this appeal against the judgment of conviction and order of sentence dated 19.08.2005 and 23.08.2005 respectively in Sessions Trial No. 237 of 2003 passed by the Additional Sessions Judge, F.T.C.III, West Champaran, Bettiah, by which the appellant was found guilty under Section 302 of the Indian Penal Code and 27 of the Arms Act. He was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- and in default of making fine he was to further undergo rigorous imprisonment for one year. He was further convicted and sentenced under Section 27 of the Arms Act to undergo rigorous imprisonment for three years and to pay a fine of Rs. 2,000/- and in default of making fine he was ordered to undergo further rigorous imprisonment for three months. Both the sentences were ordered to be run concurrently.

(2.) Exhibit-1 is the basis of the prosecution case, which is fardbeyan of P.W.7, the informant Md. Pappu, which was given in the evening of 04

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.05.2002. It was alleged that at about 5.00 P.M. on that date the informant was playing with his Baby(Bhagini) on the road. At that very time, Md. Nayeem, Md. Manoj, Md. Quaish, Ameen Mian, Pappu Mian and Nanhaki Mian(appellant) came there. Out of them, Nanhaki Mian was having country made gun. It has been further alleged that Nanhaki Mian put the country made gun on the head of the informant and asked him to communicate his brother that he should not venture towards the Masjid otherwise he would be eliminated. The cousin sister of the informant informed the mother of the informant about this episode. Upon which, she came out from her house on the road and asked Nanhaki Mian as to why he would kill her son, rather he might kill her instead of her son. Upon this, the appellant Nanhaki Mian put his country made gun on the chest of the mother of the informant and fired causing her death on the spot. The motive given in the fardbeyan is that in the last Municipal Election, his brother has casted vote on the symbol of Jug while the accused persons were asking them to cast vote on the symbol of Pen-Pot but the informants mother refused and so on account of refusal the enmity was going on between the parties which resulted into her killing.

(3.) The fardbeyan of the informant resulted in Bettiah Town P.S. Case No. 178 of 2002 under Sections 147, 148, 149, 302, 324, 307 of the Indian Penal Code and Section 27 of the Arms Act against Nanhaki Mian and others.

(4.) The fardbeyan was investigated into and after investigation, charge sheet was submitted against the appellant and one Ameen Mian. Thereafter cognizance was taken and the case was committed to the court of Sessions where charges under Section 302 of the Indian Penal Code against the appellant and under Section 302/34 and 27 of the Arms Act against the appellant and co-accused Ameen Mian were framed and explained them who pleaded innocence. So the trial proceeded.

(5.) In order to prove the case, the prosecution has examined altogether 15 witnesses. They are: P.W.1-Nazma Khatoon, P.W.2-Budhu Mian, P.W.3-Tunna Khan, P.W.4- Abdul Wahid Khan, P.W. 5-Izhar Hussain, P.W.6-Md. Ekbal, P.W.7-(Informant) Md. Pappu, P.W.8-Ali Akbar, P.W.9- Jamil Khan, P.W.10-Md. Munna, P.W.11-Makbool Alam, P.W.12- Sharma Alam, P.W. 13-Abdullah Khan, P.W. 14- Dr. Ashok Kumar Chaudhary(Medical Officer)and P.W.15-Md. Ali(formal witness).

(6.) The prosecution has also exhibited fardbeyan(Ext.-1), Post mortem report(Ext.2), Formal F.I.R.(Ext.3)and carbon copy of inquest report(Ext.4).

(7.) The defence has not produced any witness.

(8.) The trial court after considering the entire evidences on record came to finding that the prosecution was able to prove the charges only against the appellant, Nanhaki Mian, so he was convicted and sentenced, as stated above. Another accused Ameen Mian who faced the trial alongwith the appellant was found not guilty. Hence he was acquitted of the charges.

(9.) This Court has to see whether the prosecution was able to prove the charges against the appellant beyond the shadow of all reasonable doubts or not.

(10.) Out of 15 prosecution witnesses, P.Ws.1 and 2 are the family members of the informant and they have claimed themselves to be eye witnesses. P.Ws.4 and 5 are independent and hearsay witnesses. P.W. 7(informant) is an eye witness. P.Ws.8 to 13 have not supported any part of allegation. So they have been declared hostile.

(11.) P.W. 14 has conducted post mortem examination over the dead body of Salma Khatoon, wife of Sanaur Alam, aged about 35 years and has found following anti-mortem injuries: (i) One circular lacerated wound over chest left side near body of sternum. Inverted margin of wound with charring of wound margin. Size- diameter-wound of entry. (ii) One circular lacerated wound over chest back side left side in 6th inter coastal space 2 away(left) to spinal cord. Size-1/2 diameter with inverted margin- wound of exist. All the injuries were anti-mortem and were caused by fire arm. According to opinion of doctor, cause of death was due to haemorrhage and shock and the injuries were sufficient to cause death in all probability in the ordinary course of nature.

(12.) The doctor has been examined and some suggestions were given by the defence regarding procedure of the conduct of post mortem examination but the evidence of doctor has established beyond all reasonable doubts that death of Salma Khatoon was on account of fire arm injury on the date and time as alleged.

(13.) The informant (P.W.7) has stated in his evidence that in the evening at about 5.00 P.M. on 04.05.2002 the appellant has fired upon his mother and killed her for which fardbeyan was given by him which resulted in formal F.I.R. A suggestion was given by the defence that it was a Akhara-day on 04.05.2002 on the eve of Moharram and so there was possibility that the death might have been caused by firing by some one else but taking benefit of death, the appellant was roped in but it was merely suggestion and the informant has stated in his evidence that due to fire arm injury his mother has died.

(14.) P.W.1 Nazma Khatoon was examined on behalf of the prosecution and she has been cited as an eye witness. She has stated that at about 5.00 P.M. on 04.05.2002 the appellant Nanhaki Mian came alongwith others and put country made gun on the temporal region of the informant (P.W.7) and asked him to restrain his brother from going towards Masjid. The informant replied that he would convey this message. At that very time, the informants mother came there and asked the appellant, Nanhaki Mian, as to why he is killing his son rather he may kill her instead of her son. Upon this, Nanhaki Mian fired upon her which hit her left chest and on account of fire arm injury she fell down and succumbed to her injury. The appellant escaped from the place of occurrence. The dead body was carried for post mortem. A suggestion was given by the defence that she was not residing at the place where the occurrence has occurred and she consistently stated that she was residing with her husband in her husbands house. She has explained that after marriage she was staying with her husband in that very locality. So the prosecution was able to establish that at the time and date of occurrence she was present there and she has witnessed the occurrence i.e. killing of Salma Khatoon. P.W. 2 has supported the versions of P.W.7 and P.W.1 who has stated that firing was resorted to in his presence by the appellant which has caused death to Salma Khatoon

(15.) Some witnesses have been declared hostile as they have not supported the prosecution version. We have to see the quality of witnesses. When few persons support the prosecution case in the capacity of eye witnesses then it can be held that their testimony was incorrect and the Court can rely upon their testimony with regard to their evidence which in the present case has remained intact. Despite some minor variations we find that the evidence is trustworthy.

(16.) Learned counsel for the appellant has submitted that the witnesses came after the occurrence and it was argued that it was not possible that the witnesses have seen the occurrence. So the trial court has committed error in relying upon the evidence of those witnesses who were claimed to be present at the time and date of occurrence.

(17.) It has also been argued that in view of the contradictions in the evidence of the witnesses it was incumbent upon the prosecution to examine Investigating Officer so that the defence might have cross-examined him but non- examination of I.O. caused prejudice to the defence. In the present case the eye witnesses are consistent and no major contradiction is available in their deposition so non-examination of Investigating Officer has not caused prejudice to the defence.

(18.) The death by fire arm has been proved by doctor. The ocular evidence of P.Ws.1 to 7 are consistent that the fire arm which has caused the fatal injury to the deceased was used by the accused, Nanhaki Mian, at the time of occurrence.

(19.) The witnesses have consistently stated that Salma Khatoon @ Raj Kumari Devi came and asked the appellant as to why he was intending to kill her son upon which the appellant has fired causing her death. On this point evidences are consistent. The other minor variations did not affect the testimony of the witnesses. In view of their consistent evidence, the death was caused in the manner as alleged which was on account of some dispute on the eve of Municipal Election.

(20.) The witnesses examined are relatives but the evidence of relatives can not be discarded only because they are interested witnesses.

(21.) There is general tendency that the strangers do not intend to involve themselves in any kind of dispute and this tendency is in vogue. The witnesses are supporting the prosecution case. Some witnesses have been declared hostile and they are not reiterating the prosecution version as eye witnesses but the eye witnesses are trustworthy and hence trial court has rightly accepted their testimony as eye witnesses which have fully supported by doctor(P.W.14).

(22.) After analyzing the entire evidences on record, we are of the view that the prosecution was able to prove the charges against the appellant beyond the shadow of all reasonable doubts. As such, the impugned judgment requires no interference by this Court.

(23.) In the result, this appeal is dismissed and the judgment of conviction and order of sentence is upheld
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