CRIMINAL APPEAL No.7 OF 1998 With CRIMINAL APPEAL NO.10 OF 1998 --- Against the judgment and order of conviction dated 24.11.1997 and 28.11.1997,respectively passed by Sri H.B.P.Sinha, 4th Addl. Sessions Judge, Madhubani in Sessions Trial No.182/95. ----- MD. KASIM @ BHUTTU, son of Abdul Rajaque, resident of village Rajaura, p.s.Raiyam, Darbhanga (Appellant in Cr. Appeal No.7/98) MD. NABIJAN @ SUKHARA, son of Late Md.Hussan Tahir resident of village Balath, P.S.Rahika, Madhubani (Appellant in Cr. Appeal No.10/98) Versus S TATE OF BIHAR (Respondent in both the case) ----- For the Appellant :Ms.Rina Sinha, Amicus curiae (Cr.Appeal No.7/98) For the Appellant :Mr.Nirmal Kumar Sinha No.3 ( Cr.Appeal No.10/98) For the State :Mr.S.N.Prasad, APP (in both cases) ---- P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL *** K. K. Mandal, J. Both the appeals are cognate as they arise out of the judgment dated order 24.11.1997 and order of conviction dated 28.11.1997, passed by the 4th Addl. Sessions Judge, Madhubani in Sessions Trial No.182/95. Both the appeals, therefore, have been heard together and are being disposed of by the present order. 2. Challenge in these appeals has been thrown to the judgment dated 24.11.1997 and order of conviction dated - 2 - 28.11.1997, whereby both the appellants, namely, Md.Kasim @ Bhuttu (Cr. Appeal No.7/98) and Md.Nabijan @ Sukhara (Cr. Appeal No.10/98) have been held guilty under the charge(s) punishable under section 395 IPC and sentenced to undergo R.I. for seven years. 3. Background facts, in a nutshell, are as follows: The present appeals germinate out of Madhubani (Rahika P.S.Case No.79/95), lodged by the informant Md.Zakir Hussain(P.W.4) on 25.4.1995 at 1.15 P.M. alleging therein that he along with his son Helal Akhtar (P.W.1) was returning to their home on 24.4.1995 at 7 P.M from Darbhanga and as soon as they reached near east of Basauli Hat on foot after deboarding from a bus, all of a sudden, eight miscreants surrounded them(some of them were armed with Lathi and sickle). As per the prosecution case, they all assaulted the informant with Lathi and sickle causing bleeding injury and forcibly snatched cash of Rs.1500/- and a Seiko wrist watch from the possession of the informant (P.W.4). The miscreants also relieved the informant’s son (Helal Akhtar) of Rs.2300/- besides a Kohinoor wrist watch he was wearing. As the occurrence was being committed, they raised alarm, whereupon the villagers arrived, offered chase and caught hold of them(the present appellants). The matter was promptly reported to the police on 25.4.1995 at 1.15 P.M. by the informant and the miscreants so captivated were handed over to the police. 4. On the basis of the said Fardbayan(Ext.3) a formal - 3 - FIR(Ext.4) was drawn up. The Investigating Officer thereafter investigated the case and having found the case true, submitted charge-sheet against the present appellants whereon cognizance of the offence was taken and the case was committed to the Court of Sessions. The trial was ultimately taken up by the learned 4th Addl. Sessions judge, Madhubani in which charge under section 395 IPC was framed against both the appellants and read over to them to which they pleaded not guilty and, thus, claimed to be tried. 5. Defence of the appellants appears to be false implication. 6. In order to prove the charge(s), the prosecution examined altogether four witnesses, besides the court witness Md. Nyaz (CW1) who has proved the Fardbayan (Ext.3) and formal FIR (Ext.4) P.W.1 Md. Helal Akhtar is the son of the informant who, at the relevant date and time, was accompanying the informant on their way home after deboarding a bus. As per his deposition, as they reached near Kauwahi Tola, one miscreant riding a cycle crossed them and immediately thereafter eight miscreants, including the appellants, intercepted them. Four of them caught hold of him, whereas four others caught hold of the informant. They inflicted injury to both of them with sickle(used for toddy tapping). He sustained injury on his head. The miscreants robbed him of cash worth Rs.2300 as also an HMT Kohinoor wrist watch he was wearing. The miscreants also - 4 - looted Rs.1500/- and one Seiko wrist watch from the possession of his father (P.W.4). On alarm raised by them, several villagers came to the place of occurrence who offered a chase and thereafter captivated the present two appellants. P.W.2 is a formal witness who has proved his signature on the seizure memo (Ext.1), whereby sickle, blood-stained cloths and Darkas (a weapon used for toddy tapping) were recovered from the possession of one of the appellants, namely, Md. Nabijan @ Sukhara. P.W.3 Faruque Ahmad is a co-villager who is said to have arrived at the place of occurrence on hearing alarm raised by the informant(P.W.4) and his son(P.W.1) just to find that the villagers had captivated two miscreants. He found the informant and his son in injured conditions who were thereafter shifted to the hospital for treatment. P.W.4 is the informant himself who, in his deposition, has supported the prosecution case in its entirety. I have carefully perused the evidence. In cross-examination nothing substantial has come out in order to doubt and/or disbelieve/discredit his deposition. 7. Learned amicus curiae appearing in Cr.Appeal No.7/98, has criticized the judgment on the sole ground that no independent witness has supported the prosecution case. She further submitted that the Investigating Officer as well as the doctor has not been examined in the case. Their deposition, - 5 - according her, was necessary in order to prove the prosecution case beyond all reasonable doubts. 8. Mr. Nirmal Kumar Sinha, learned counsel appearing on behalf of the appellant in Cr.Appeal No.10/98 also advanced somewhat identical submissions. He also addressed the Court on the quantum of sentence. 9. Mr. S.N. Prasad, learned APP, per contra, submitted that the prosecution has been able to prove their case beyond all reasonable doubts. He further highlighted that the accused(s) appellants have, in fact, miserably failed to adduce any evidence and/or elicit any statement by way of cross-examination in order to demonstrate, even remotely, that witnesses in general and P.Ws.1 and 4 in particular had any animosity with the appellants and, therefore, they have no reason to falsely implicate the appellants. He further submitted that P.W.3 is an independent witness who has supported the factum of the occurrence. 10. This Court thoughtfully reflected over the rival submissions advanced on behalf of the parties and carefully perused the evidence on record 11. The depositions of P.Ws.1 and 4 are clear and specific. They have supported the prosecution case in their entirety. The appellants have cross-examined the witnesses but have not been able to elicit anything which can reasonably discredit their deposition/evidence. P.W.3 is yet another independent witness who has supported the factum of occurrence - 6 - and, thus, corroborated the case projected by the prosecution through the deposition(s) of P.Ws.1 and 4. This Court further finds that these appellants have not been convicted under section 397 IPC and as such non-examination of the doctor has not, in any manner, prejudiced the defence. This view has been taken keeping in view the deposition of P.W.3 who did find P.Ws.1 and 4 in injured conditions and thus supported the manner of occurrence as alleged by the prosecution. Non-examination of the I.O. cannot ipso facto be said to be fatal to the prosecution case. It always depends on the facts and circumstances of the case. I, on perusal of the deposition of P.Ws.1,3 and 4, find that non- examination of the I.O. has not prejudiced the case of the defence. To repeat, this Court has found the evidence of P.Ws. 1 and 4 above-board, particularly when the appellants have not been able to bring on record either by filing documents and/or by cross- examining those witnesses showing any motive/purpose for false implication of the present appellants. The submissions are, therefore, unfounded and are hereby rejected. 12. Learned counsel for the appellants, thereafter submitted that there are several factors emanating from the records which have mitigating effects so far as the quantum of sentence is concerned. It has been submitted that the occurrence in the present case had taken place on 24.4.1995. It has further been submitted that the appellants have been made to suffer in fighting the present litigation for nearly 14 years by now. It is also - 7 - highlighted that they have now grown up and presently are aged about 69 and 46 years respectively and tethered to their families. 13. Counsel for the State, on the other hand, submitted that the appellants have been held guilty of having committed heinous crime and as such the Court should no take lenient view. 14. Having considered the submissions advanced on this aspect of the matter carefully, this Court is of the view that the following sentence shall meet the ends of justice. 1. The appellants in both the appeals (Cr.Appeal No.7/98 and Cr.Appeal No.10/98) are sentenced to undergo R.I. for six years for the charge(s) punishable u/s 395 IPC. 15. In the result, both the appeals stand dismissed with the modification in sentence, as noticed above. ( Kishore K. Mandal ) Patna High Court, Dated the 4th March,2009 HR/NAFR