Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.101 of 2000 ======================================================== AGAINST THE JDUGMENT OF CONVICTION DATED 9TH OF MARCH, 2000 AND ORDER OF SENTENCE DATED10TH OF MARHCH, 2000 PASSED IN SESSIONS CASE NO. 146 of 1997/341 of 1995 ARISING OUT OF CIVIL LINE POLICE STATION CASE NO. 177 OF 1992 BY SRI A.K.PANDEY, JUDICIAL MAGISTATE 1ST CLASS, GAYA ======================================================== 1.MURSHID MIAN @ NIJAM , SON OF LATE AGIM MIAN 2. MD. MAKSHUD MIAN, SON OF LATE AGIM MIAN 3. KHURSHID MIAN @ PAPPU, SON OF LATE AGIM MIAN 4. MD. RASHID MIAN, , SON OF LATE AGIM MIAN 5. MD. SALIM MIAN, SON OF SAKUR MIAN, ALL ARE THE RESIDENT OF MOHALLA:-GHUGHRHI TARH, POLICE STATION- CIVIL LINE, DISTRICT GAYA .... .... APPELLANT/S VERSUS THE STATE OF BIHAR .... .... RESPONDENT/S ======================================================== APPEARANCE : FOR THE APPELLANT/S : MR. CHITRANJAN SINHA, SR. ADV. MS. SONI SHRIVASTAVA, ADVOCATE MR. HAFIZ AHMAD, ADVOCATE MS. PRIYA GUPTA, ADVOCATE FOR THE STATE: MR. S. ASHFAQUE AHMAD, A.P.P. ======================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 29-06-2012 Sheema Ali Khan, J. This appeal is directed against the judgment of conviction dated 09th March, 2010 and the order of sentence dated 10th March, 2010 passed by the 5th Additional Sessions Judge, Gaya in Sessions Trial No. 146 of 1997/341 of 1995 arising out of Civil Line Police Station Case No. 177 of 1992, Patna High Court CR. APP (SJ) No.101 of 2000 dt.29-06-2012 2 / 9 2 whereby the Trial Court has sentenced all the appellants to undergo rigorous imprisonment for five years under [STATUTE] and further convicted the appellants namely, Murshid Mian @ Nijam, Rashid Mian and Salim Mian to undergo rigorous imprisonment for three years under Section 27 of the Arms Act. The sentences are to run concurrently. 2. This is a case based on the statement the informant/injured Rauf Mian, the injured, who has given his fardbeyan before the Daroga of the Civil Line Police Station, Gaya. 3. The case, as made out in the First Information Report, is that in the morning of 2.8.1992 Rauf Mian along with the other appellants had come with an Amin for measurement of the land of the informant. The informant apprehending partiality in the measurement, objected and said that the said land belongs to him and the land has been record in the survey, in the name of informant as result of which the appellants, namely, Khursid Mian @ Pappu, Rashid Mian, Makshud Mian and Salim Mian armed with pistols came to the land of the informant and began to abuse the informant, when the informant objected then the accused Murshid Mian took out his pistol from his waist, with intention to kill the informant, fired at him which hit the back of the informant. Patna High Court CR. APP (SJ) No.101 of 2000 dt.29-06-2012 3 / 9 3 4. In order to prove the charges levelled against the appellants, the prosecution has examined altogether 8 witnesses. P.Ws. 1 to 4 have been declared hostile by the prosecution. Their evidence has not been considered by the trial court, while discussing the evidence in this case. 5. P.W. 6 Aftab Alam is the son of Rauf Mian, P.W. 5. He is a hearsay witness regarding the occurrence. P.W.7 Shahjahan Khan, Assistant Sub-Inspector of Police is the Investigating Officer of this case, whereas P.W.8 Chunni Singh is a formal witness and has proved the carbon copy of the injury report which has been marked as Exhibit-5. 6. This Court, therefore, in order to decide as to whether the allegations levelled against the appellants are true, requires to consider the evidence of P.W. 5 Rauf Mian, the informant of this case. According to P.W.5, the plot number for which there was a dispute was 85 and he claims that this plot was settled in his favour and his name finds place in the revenue records. In the deposition, the informant has improved on the version of the occurrence as stated in the First Information Report, as he not only makes a direct allegation against Murshid Mian, but also alleges that Salim Mian fired at him while he was running away and which hit his chest. He further says that he received three injuries: two on his back and one on his chest. This witness has admitted that there was a title suit pending between him and the Patna High Court CR. APP (SJ) No.101 of 2000 dt.29-06-2012 4 / 9 4 appellants, which was numbered as Title Suit No. 81 of 1991. At paragraph 5 of the deposition, this witness admits that he had filed Title Suit No. 81 of 1991 in which Maksood was defendant. The prayer in the suit was to evict the defendant from the suit lands. It is thus submitted that a bonafide dispute exists between the parties. It is also admitted that the informant has not in possession. At paragraph, 10 however, it appears that a separate suit was filed as, Title Suit No. 47 of 1992 with respect to plot no. 85 (Exhibit B in the order of appeal with respect to plot no. 85). Therefore there appears to be a bonafide dispute with request to the land on which the occurrence took place. P.W. 3 was cross-examined at some length. Initially he admits or rather he corrects himself at a later stage of the cross-examination and states that he had signed on the fardbeyan which is marked as Exhibit-1. The First Information Report is marked as exhibit-4. It cannot be said that his evidence is completely false, although he has deviated from his initial version of the case and tried to show that he had received three injuries: two on the back area and one on the chest. As far as his evidence regarding firing by Md. Salim and Md. Rashid Mian it would appear that the evidence cannot be given credit as it is an improvement and the fact ought to have been mentioned in the First Information Report. The only material which could have Patna High Court CR. APP (SJ) No.101 of 2000 dt.29-06-2012 5 / 9 5

Applicable IPC Section: 149

Statute Text:
Section 149 of the Indian Penal Code. If an offence be committed by any member of an unlawful assembly, every other member of such assembly shall be guilty of the offence. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.