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PATNA HIGH COURT
N.Rai and B.P.Sharma JJ.
Syed Zulfikar Hussain @ Syed Warish Hussain
Versus
State Of Bihar
Criminal Appeal No. 11 of 1988 ;
Decided On : MARCH 6, 1998
CRIMINAL LAW - Murder - Conviction - Evidence - Appreciation - Motive - Non-examination of Doctor and I.O. - Effect - Corroboration of Oral Evidence - Necessity - Explosives Act, 1884 - Section 9(b) - Sanction of Prosecution - Necessity.
Fact of the Case:
Four accused were charged and tried for murder and under the Explosives Act. Two of them were convicted and sentenced to life imprisonment under Section 302, IPC and to undergo RI for two years under Section 9(b) of the Explosives Act. The other two accused were absconding and were later apprehended and tried separately. One of them was convicted under Section 302, IPC and also under Section 9(b) of the Explosives Act and sentenced to life imprisonment under Section 302, IPC.
Finding of the Court:
The Trial Court convicted the appellants based on the evidence of three eyewitnesses who were related to the deceased. The Court held that the medical evidence had only corroborative value and that the non-examination of the I.O. did not cause prejudice to the defense. The Court also held that the motive for the occurrence was not proved but that this did not disbelieve the prosecution story.
Issues: 1. Whether the prosecution proved the case against the appellants beyond reasonable doubt? 2. Whether the non-examination of the Doctor and the I.O. caused prejudice to the defense? 3. Whether the conviction under Section 9(b) of the Explosives Act was legal?
Ratio Decidendi: 1. The Court held that the prosecution proved the case against the appellants beyond reasonable doubt based on the evidence of three eyewitnesses who were related to the deceased. The Court held that the medical evidence had only corroborative value and that the non-examination of the I.O. did not cause prejudice to the defense. 2. The Court held that the non-examination of the Doctor and the I.O. caused prejudice to the defense. The Court held that corroboration of the oral evidence regarding the manner of occurrence was necessary and that the non-examination of the Doctor and the I.O. prevented this. 3. The Court held that the conviction under Section 9(b) of the Explosives Act was not legal as no evidence was adduced regarding the sanction of prosecution.
Final Decision: The Court dismissed the appeals of the two appellants who were convicted in the first trial and allowed the appeal of the appellant who was convicted in the second trial. The Court set aside the conviction of the two appellants under Section 9(b) of the Explosives Act and confirmed their conviction and sentence under Section 302, IPC.
B.P.Sharma, J.
1. All the three appeals have been heard together as they relate to the same offence and the same Police Case i.e., Silao (Rajgir) P.S. case No. 7 of 1980. There were altogether four accused in this case and while two of them were facing trial, vide S.T No. 147/86, the other two were absconding ; the two accused Syed Zulfikar Hus sain and Bideshi Razwar were charged and tried in S.T. No. 147/86 by the 3rd Additional Sessions Judge, Nalanda at Biharsharif and by judgment dated 18th December, 1987, the Trial Court convicted both of them. Accused Zulfikar Hussain was convicted under Section 302/34, IPC and also under Section 5(3)(b) of the Explosives Act, accused Bideshi Razwar was convicted under Section 302, IPC and also under Section 5(3)(b) of the Explosives Act. However, both of them were sentenced to life imprisonment under Section 302, IPC and also to undergo RI for two years under Section 9(b) of the Explosives Act. Being aggrieved by and dissatisfied with the judgment and order of the Trial Court, convict Zulfikar Hussain preferred appeal which has been registered as criminal appeal No. 11 of 1988 (DB) and convict Bideshi Razwar filed a separate appeal which was registered as criminal appeal No. 74 of 1988 (DB). So both, criminal appeal No. 11/88 and criminal appeal No. 74/88 arise out of the same judgment and order dated 18th December, 1987. However, it appears that subsequently, one of the absconding accused Arjun Rajbanshi was also apprehended and on the basis of supplementary charge-sheet, the cognizance was taken and he was also committed to the Court of Sessions and session case No. 103/90 was registered in which the said accused Arjun Rajabanshi was tried and was convicted by the 3rd Additional Sessions Judge, Nalanda at Biharsharif by judgment dated 23.1.1993. This accused has been convict under Section 302, IPC and also under Section 9(b) of the Explosives Act and while he has been sentenced to undergo life imprisonment under Section 302, IPC; he has not been separately sentenced under Section 9(b) of the Explosives Act. So, though the appeals arise out of two separate judgments of different dates; all the three appeals relate to the same occurrence and the same police case.
2. According to the prosecution story, stated in brief, a Police Officer of Rajgir Police Station received an information on 5th December, 1980 by way of rumour that some bomb was exploded and a person had died in Panditpur Khanda within the jurisdiction of Rajgir Police Station. Accordingly, the Police Officer, Balmiki Prasad (PW 6) recorded the Station Diary entry No. 94 of 5th December 1980 and proceeded for the P.O. for verification of the information. On arriving the said Panditpur Khanda at about 3.00 a.m. in the afternoon, he met one Arun Kumar, son of Shyam Narain Prasad of village Basuain and recorded his fardbeyan (Ext. 2). This fardbeyan was recorded in presence of two witnesses, namely, Ramjee Prasad (PW 3) and Raj Kumar Prasad (PW 2). The informant stated before the Police Officer that on the same day, i.e., 5.12.1980, at about noon, he was going to Rajgir in the company of his uncle Saryug Prasad who happened to be a Mukhiya of Pathraura Gram Panchayat. The informant further stated that when they reached to the south of village Nonhee, near a neem tree, they saw four persons sitting there. They were Zulfikar Hus-sain, son of Nisar Hussain of village Nonhee, Bangali Rajbanshi, son of Dhani Rajbanshi, Bideshi Razwar son of Dhani Rajbansi of village Basuain and Arjun Rajbanshi son of Sahtu Rajbanshi of village Dohai Sohai. They were talking in hush voice among themselves. Thereafter the informant and his uncle crossed them and proceeded towards east. Then these persons started following them and when at about 1.00 p.m. they reached Panditpur Khanda, accused Zulfikar Hussain uttered that they should not now wait and they should finish their job. Upon this, Bangali Razwar took out a bomb from the jhola in his
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