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2002 DIGILAW 1052 (JHR)

Hakim Khan v. State of Bihar

2002-09-19

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
JUDGMENT Vishnudeo Narayan, J.- This appeal has been preferred by the appellants named above against the judgment dated 17.5.1989 passed in S.T.No. 88/85 by Sri S. N. Gupta, 1st Addl. Judicial Commissioner, Ranchi hereby and whereunder all the appellants were found guilty for the offence punishable under section 302/149 I.P.C. and they ere each convicted and sentenced to undergo R.I. for life. 2. The alleged occurrence of this case said to have taken place on 28.1.1978 at 15.00 hours in Village Lawagain, P.S. Kuru, District Ranchi (now Lohardagga) in which Nazma Khatoon, aged about 12 year, is said to have died of poison and U.D.Case o. 1/78 was registered in Kuru P.S. on 28.1.1978 at 22.00 hours on the basis of the statement of P.W.4, Nazibullah Khan said to be the own uncle of the said deceased girl. Kuru police came to the place occurrence and started making investigation and the dead body of the deceased was sent for post mortem examination to Lohardagga Sub-divisional Hospital on 1.1.1978. P.W.1. Azimullah Khan, a teacher, profession, then posted in the basic school, Nischintpur, P.S.Chakradharpur, Distt. Singhbhurn, who is the father of the deceased of this case, was informed about the occurrence by PW 3, Md. Sajibullah Khan, his full brother and he came to his home in village Lawagain on 29.1.1978 at 5.00 PM. and he learnt about the details of the occurrence from his wife, PW2, Maika Bibi and he lodged a written report dated 30.1.1978 regarding the occurrence before O/C Kuru P.S. which was registered as Kuru P.S. Case NO.1 dated 2.2.1978 (G.R.Case No. 24/78) under sections 302/ 328/341/448/323 I.RC. against the appellants. Final report mistake of fact was submitted on 6.1.1979 in this case as per investigation by Kuru RS. A protest petition was filed in this case by PW1, the informant on 17.7.1979. It is relevant to mention here that a complaint petition was also filed by PW1, Azimullah Khan before the court of S.D.J.M., Lohardagga on 14.3.1978 much prior to the filing of the protest petition which gave rise to complaint case no. 11/78. It appears vide order dated 11.3.1980 passed in G.R.Case No. 24/78 arising on the basis of the written report of the informant that the said G.R.Case was ordered to be amalgamated with complaint case no. 11/78. It appears vide order dated 11.3.1980 passed in G.R.Case No. 24/78 arising on the basis of the written report of the informant that the said G.R.Case was ordered to be amalgamated with complaint case no. 11/78 but the order sheet of the said G.R.Case does not show regarding any order passed therein regarding the final form mistake of fact submitted by the I.O. in that case. However, the complainant, Azimullah Khan was examined on SA on 14.3.1978 when the complaint petition was filed and after receipt of the report from the I.O., the case was enquired into under section 202 Cr.PC. and finding a prima facie case having been made out for proceeding further in the matter for issuance of summons, cognizance in this case was taken and thereafter the case was committed to the court of Sessions for the trial of the accused appellants. 3. It is now pertinent to mention here that the basis of the prosecution case is the complaint petition dated 14.3.1978 of PW.1, Azimullah Khan, the complainant. The prosecution case, as per averment made in the complaint petition aforesaid, in brief is that the occurrence has taken place on 28.1.1978 at about 3.00 PM. in the courtyard of the house of the complainant in village Lawagain, P.S.Kuru District-Ranchi. The complainant, who is a teacher posted at basic school, Nishchintpur, P.S.Chakradharpur, District Singhbhum was informed by his younger brother P.W. 3, Md. Sajibullah Khan on 29.1.1978 about the murder of Nazma Khatoon, the daughter of the complainant. On getting the said information the complainant came to his house in village Lawagain where his wife P.W.2, Maika Bibi stated that at about 3.00 PM. on the date of the occurrence Nazma Khatoon was in the courtyard of her house and at that time all the appellants named above came there from the Angan of the house of one Kalam Khan and appellants Safique Khan and Ayub Khan felled Nazma Khatoon forcibly in the courtyard and thereafter appellant Hakim Khan poured something from a 'sisi' (small bottle) in the mouth of Nazma Khatoon and pressed her mouth and hands as a result of which Nazma Khatoon became senseless and died. It is alleged that P.W.2, Maika Bibi, who was in the Verandah forbade them but appellants Bibi Nabu and Hasba Khatoon caught Maika Bibi aforesaid and they pressed her mouth and due to that she could not raise alarms. It is also alleged that when Nazma Khatoon became senseless, the appellants aforesaid fled away and thereafter PW.2 Maika Bibi raised alarms and witnesses came to the place of occurrence who were told about the occurrence and PW.2. Maika Bibi also gave her statement before the police when it came to the place of occurrence but the statement of- Maika Bibi was not read over and explained to her. It is also alleged that house of the parties are adjacent and Nazma Khatoon, the deceased of this case, had earlier deposed against the appellants in Complaint Case No. 280/72. 4. The appellants have pleaded not guilty to the charge levelled against them and claimed themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case due to enmity which is existing and alive between the parties. Further case of the appellants is that Nazma Khatoon was a girl of easy virtues and she had committed suicide by taking poison and on the statement of PW-4, Nazibullah Khan, a U.D. case was registered regarding the incident and in spite of written report and the F.I.R, the Kuru Police on investigation found the prosecution case false and has submitted final form mistake of facts in this case. 5. The prosecution has examined six witnesses to substantiate the prosecution case. P.W. 6, Dr. Urmila Sinha has conducted the post mortem examination on the dead body of the deceased and the post mortem report prepared by her is Ext. 1 in this case. P.W.2, Maika Bibi is the alleged solitary eye witness of the alleged occurrence. P.W.1, Azimullah Khan, the complainant, his brother P.W.3, Md. Sajibullah Khan and P.W.4, Nazibullah Khan besides, P.W.5, Khairu Nisa, sister of the complainant are all hearsay witnesses of the occurrence claimed to have learnt about the occurrence from P.W.2, Maika Bibi. 1 in this case. P.W.2, Maika Bibi is the alleged solitary eye witness of the alleged occurrence. P.W.1, Azimullah Khan, the complainant, his brother P.W.3, Md. Sajibullah Khan and P.W.4, Nazibullah Khan besides, P.W.5, Khairu Nisa, sister of the complainant are all hearsay witnesses of the occurrence claimed to have learnt about the occurrence from P.W.2, Maika Bibi. No oral evidence has been brought on the record on behalf of the appellants but statement of Maika Bibi, the mother of the deceased, recorded in the proceeding under section 202 Cr.P.C. has been brought on the record by the appellants which is Ext.A in this case and Ext.B is summons to accused Manan Khan in Complaint Case No. 280 of 1972 aforesaid. 6. In view of the oral and documentary evidence on the record the learned court below came to the finding of the guilt of the appellants and convicted and sentenced them as stated above. 7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellants that the learned court below has wrongly scrutinized and appreciated the evidence of P.W.2, the alleged solitary eye witness to the occurrence and inimical to the appellants without having any corroboration by any independent, natural and competent witness of the occurrence and besides that the evidence of P.W.2 is replete with inherent improbabilities, material contradictions and inconsistencies which show that she can never be an eye witness to the occurrence. It has also been submitted that there is no legal evidence at all on the record that the death of Nazma Khatoon has been caused by poisoning, as alleged by the prosecution and P.W.6, the medical witness, is himself doubtful regarding the cause of death of the deceased in absence of the report of Viscera from the Forensic Science Laboratory, Patna in respect thereof. It has also been contended that the earlier statement of P.W.4 which is the basis of the U.D. case as well as the statement of P.W.2 recorded by the I.O. in the night of the alleged occurrence which bears the signature of P.W.2 thereon have not been brought on the record for the reasons best known to the prosecution and the circumstances emanating from the record in the evidence of prosecution witnesses probabilises the defence version regarding their false implication in this case due to the enmity, existing and alive between the parties. 8. 8. The learned A.P.P. has submitted that PW. Maika Bibi is a natural, competent and reliable witness and she was present in the house when the occurrence in question had taken place and there is no reason at all to discard her testimony and her evidence on the record fully substantiates the prosecution case beyond all reasonable doubts. 9. According to the F.I.R. of U.D. Case No. 1 of 1978, Nazma Khatoon, the deceased of this case is said to have died of poisoning in the courtyard of her house and the said U.D. Case No.1 of 1978 was registered on 28.1.1978 on the basis of the information given by P.WA, Nazibullah Khan to the Kuru P.S. P.WA has deposed in para 1 of his evidence that while returning from his school at about 5.00 O'clock in the evening on the day of the occurrence he met Abdul Mannan, who reported him that there had been a quarrel between the appellants on the one hand and the deceased on the other hand in which the deceased was abused and assaulted and due to this she has committed suicide by taking poison and a report to this effect has to be made before the Kuru P.S. and on getting this information he got an F.I.R. lodged to the Kuru P.S. He has further deposed that when he returned to his house at 5.00 O'clock in the evening and met P.W.2, Maika Bibi she had reported to him about the occurrence that all the appellants have caught the deceased and appellant Hakim Khan forcibly administered some liquid substance from a small bottle taking out from his pocket to the deceased as a result of which she has died. Kuru Police comes to the place of occurrence in the night of the occurrence and on the basis of the F.I.R. of the U.D. Case aforesaid and investigates into the matter and the dead body of the deceased is forwarded to Lohardagga Sub-divisional Hospital for post mortem. P.W.6, Dr. Kuru Police comes to the place of occurrence in the night of the occurrence and on the basis of the F.I.R. of the U.D. Case aforesaid and investigates into the matter and the dead body of the deceased is forwarded to Lohardagga Sub-divisional Hospital for post mortem. P.W.6, Dr. Urmila Sinha has deposed to have conducted the post mortem examination on the dead body of the deceased on 29.1.1978 at about 11.10 A.M. and has found the following ante mortem injury on her person :- (1) Abrasion 1 cm x 1 cm on left side of upper lip; (2) Abrasion 1 cm x 1 cm in the right cheek On dissection she has deposed to have found that stomach contained about 4 oz. of some solid substance which has medicinal smell. She has further deposed that in her opinion the death was caused due to some poison and the viscera were preserved and sent for chemical examination through police. It is pertinent to mention at this stage that the opinion of P.W.6 regarding the death of the deceased due to some poison in the absence of report of the viscera on its chemical examination by the Forensic Science Laboratory, Patna can never be said to be conclusive cause for the death of the deceased. However, in concluding portion of para 6 of her evidence she has deposed in the most clear and unequivocal terms that she has simply conjectured that the deceased might have been -administered poison. She has also deposed that she did not find any apparent mark on the dead body or its face indicating that the deceased has been administered poison and she has also not found any bluish colour on the face or on the body of the deceased. Her evidence is further to the effect that she has not got the viscera report indicating that any poison was administered to the deceased. Therefore, the evidence of P.W.6 is not at all conclusive re9arding the cause of death of the deceased by poisoning. Therefore, there is total absence of any legal evidence on the record that the deceased has died of poisoning. Therefore, the evidence of P.W.6 is not at all conclusive re9arding the cause of death of the deceased by poisoning. Therefore, there is total absence of any legal evidence on the record that the deceased has died of poisoning. The learned court below in para 6 at page 5 of the impugned judgment has rightly come to the finding of the fact that "in face of these admissions of the doctor, the medical evidence regarding administration of poison, is almost nil on the record", but it appears queer enough that in spite of recording the aforesaid finding the learned court has come to the finding of the guilt of the appellants causing the death of the deceased by administering poison. The medical evidence on the record coupled with the finding of the learned court below referred to above goes at the very root regarding the warp and woof of the manner of the occurrence of the prosecution case, as alleged. P.Ws. 1, 3, 4 and 5 are not the ocular witnesses of the occurrence and they have all deposed to have come at the place of occurrence later on the alarms of P.W.2, the solitary eye witness in this case. Let us now scan and scrutinize the evidence of P.W.2 with care and caution as there is enmity between the parties existing and alive prior to the occurrence and, therefore, she has animus against the appellants. She has deposed that at the time of the occurrence she was in her house and the deceased was in the• courtyard and all the appellants came to her courtyard after scaling the 4' high wall from the side of the courtyard of Ala Baks. It is relevant to mention here that in the written report dated 30.1.1978 of P.W.1 there is no reference of the courtyard of Ala Baks for coming of the appellants in the courtyard of P.W.2 whereas in para 3 of the complaint petition it has been stated that all the appellants came from Angan of the house d Kalam Khan. P.W.1 in para 1 of his evidence has also referred about the courtyard of Kalam Khan from where the wall was scaled by the appellants. He, however, does not refer the courtyard of Ala Baks. P.W.1 in para 1 of his evidence has also referred about the courtyard of Kalam Khan from where the wall was scaled by the appellants. He, however, does not refer the courtyard of Ala Baks. In para 6 of his cross-examination he has given the boundary of his house and the house of Kalam Khan is adjacent south to his house whereas the house of Ala Baks is adjacent east of his house. In para 13 of her cross examination P.W.2 has deposed that house of Ala Baks is adjacent south of her house. This evidence of P.W.2 is inconsistent with the case as averred in the petition of complaint of P.W.1 as well as as deposed by him in para 6 of his evidence referred to above. This vital contradiction emerging in the evidence of P.W.2 has its bearing on the prosecution case as well as her competency regarding her being an ocular witness of the occurrence in question. P.W.2 has further deposed that appellants, Shafique Khan, Ayub Khan and Hakim Khan felled Nazma Khatoon on the ground and appellant Hakim climbed over the chest of the deceased and administered some substance from a small bottle after removing the cork of the bottle taking the same from his pocket and at that time appellants Shafique Khan and Ayub Khan had caught her legs. She has also deposed that she attempted to raise alarms but both the female accused caught her and pressed her mouth as a result of which she could not make alarms. She has also deposed that in course of the occurrence one Kalam told them to leave the deceased as their purpose has been achieved and thereafter all the appellants have fled away. It is pertinent to mention here that there is no whisper either in the written report dated 30.1.1978 of P.W.1 or in his complaint petition as well as in the statement under section 202 Cr.P.C. of P.W.2 (Ext.A) regarding accused Hakim climbing on the chest of the deceased while administering the alleged poison and catching hold of the legs of the deceased by appellants Shafique Khan and Ayub Khan or regarding one Kalam telling the aforesaid three appellants to leave the deceased as their purpose has been achieved. The said Kalam as per the prosecution case does not figure as an accused in this case According to the prosecution case he has not come to the place of occurrence scaling the wall and, as such there is no reason for him to tell at the place of occurrence to the aforesaid three male appellants to leave the deceased as their purpose has been achieved. P.W 2 has also deposed in para 15 that she has filed this case also against Kalam Khan. The introduction of the name of Kalam Khan and the role played by Kalam in the courtyard of the informant as deposed by P.W2 being inconsistent with the prosecution case as averred in the petition of complaint casts a cloud of suspicion to the very creditability of the texture of the prosecution case and at the same time it gives an inkling of the fact that P.W2 was not present in the P.O. house at the alleged time of the occurrence for having an occasion to witness the occurrence. None of the alleged hearsay witness has deposed to have told about the fact of appellant Hakim climbing on the chest of the deceased by P.W.2. P.W.5 on the other hand has deposed that P.W.2 has told her that appellant Bibi Nabu has pressed the neck of the deceased. Therefore, even the hearsay witnesses do not corroborate the manner of the occurrence in material particulars as deposed by P.W.2. It is, therefore, evident from the evidence on the record that there is no ring of truth in the evidence of P.W.2 to show that she has witnessed the occurrence and, as such, she can never be termed as eye witness of the occurrence. It is also pertinent to mention here that there is no iota of evidence on the record to show that there was any prior concert between the appellants or common object to commit the murder of the deceased. The evidence of P.W.2 is replete with inherent improbabilities and material contradictions which speak volumes against the authenticity of the prosecution case. It is also pertinent to mention here that there is no iota of evidence on the record to show that there was any prior concert between the appellants or common object to commit the murder of the deceased. The evidence of P.W.2 is replete with inherent improbabilities and material contradictions which speak volumes against the authenticity of the prosecution case. Admittedly, the complainant is on litigating terms with the appellants and there is enmity existing and alive between the parties and complaint case No. 280/72 under section 379 I.P.C. was still subjudice between the parties and there is no evidence on the record to show that the deceased was the solitary eye witness in that case against the appellants so as to cause her death in the manner, as alleged by the prosecution. The non-production of the earlier statement of PW.2 recorded by Kuru PS. which bears her L.T.I. also becomes a circumstance of unimpeachable character against the authenticity of the prosecution case in view of the fact that P.W.2 was not present in her house at the time of the alleged occurrence rather she had gone to her field to work though she has denied the same in para 2 of her evidence. Therefore, the solitary testimony of P.W.2 for the reasons stated above is not worthy of credit and is fit to be brushed aside. The learned court below has failed to consider the evidence of P.W.2 meticulously in proper perspective and has gravely erred in coming to the finding of the guilt of the appellants. The defence version of false implication of the appellants in the facts and circumtances emanating on the record appears to be probable. 10. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned court below is hereby set aside. All the appellants are not found guilty to the charges levelled against them and they are, accordingly, acquitted and also discharged from the liability of their bail bonds. Lakshman Uraon, J.-I agree.