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2017 DIGILAW 891 (JHR)

Khalil Mian v. State Of Jharkhand

2017-06-07

ANANDA SEN, PRADIP KUMAR MOHANTY

body2017
JUDGMENT Pradip Kumar Mohanty, C.J. (C.A.V.) - The present criminal appeal is directed against the judgment of conviction and order of sentence dated 27th August, 2008 and 29th August, 2008 respectively passed by learned 1st Additional Sessions Judge, Giridih in Sessions Trial No. 93 of 2004, arising out of Giridih (T) P.S. Case No. 264 of 2003, (G.R. Case No. 1962 of 2003), whereby and where-under all these appellants, having been found guilty for committing offence under Sections 302/34 of the Indian Penal Code, have been sentenced to undergo imprisonment for life and fine of Rs. 1,000/- each. 2. The case of the prosecution, as has been made out by the informant Julekha Khatoon (P.W.10) in her fardbeyan, is that on 22.10.2003 at about 4.00 PM her husband Hemtali Mian @ Bandhu Mian (deceased) had gone to Bhandaridih for marketing. The informant, her son Mahiruddin Ansari and daughter Aisha were at the house situated at Lakhari. At about 8.00 P.M. she heard sound of blasting of three bombs in front of her house. She came out of her house with a lantern and saw Khalil Mian, Salim Mian and Jakir Mian were standing in the street. She also saw her husband who was lying in the street in injured condition and his cycle was also lying there. The informant also saw two-three persons fleeing in the western side but she could not identify them. She inquired from the accused persons (appellants herein) as to who has assaulted her husband but they fled from the place and entered into their house. Thereafter, the informant raised hulla and villagers took the husband of the informant to the hospital but he died. It is alleged by the informant that the deceased had mediated for disposal of land of Ulfat Mian (brother of Khalil Mian) for that reason Khalil Mian was annoyed with the deceased. She further claimed that the accused persons, namely, Salim, Khalil and Jakir with the help of two or three unknown persons, committed murder of the deceased. 3. On the basis of the aforesaid fardbeyan, Giridih (T) P.S. Case No. 264 of 2003 was registered under sections 302/34 of the Indian Penal Code as well as under Sections 3/4/5 of Explosive Substance Act. After investigation, police submitted charge-sheet against the present appellants, namely, Khalil Mian, Jakir Mian and Salim Mian, showing the investigation pending against one Md. Kalim. On the basis of the aforesaid fardbeyan, Giridih (T) P.S. Case No. 264 of 2003 was registered under sections 302/34 of the Indian Penal Code as well as under Sections 3/4/5 of Explosive Substance Act. After investigation, police submitted charge-sheet against the present appellants, namely, Khalil Mian, Jakir Mian and Salim Mian, showing the investigation pending against one Md. Kalim. Thereafter, the case was committed to the Court of Session which was numbered as S.T.Case No. 93 of 2004. In the meantime another charge-sheet was submitted against Md. Kalim and his case was also committed to the Court of Sessions which was numbered as S.T. Case No. 228 of 2004. Both the cases were amalgamated and since Md. Kalim was declared juvenile, his case was separated and was sent to the Board. 4. Charges were framed against the present appellants under sections 302/34 of the Indian Penal Code and sections 3/4/5 of the Explosive Substance Act and for which the appellants did not plead their guilt and claimed to be tried. 5. The prosecution, in order to prove its case, examined altogether 13 witnesses. On the other hand the appellant No. 1 Md. Khalil, was examined as D.W.1 in this case. 6. After closure of evidence of the prosecution, statements of the accused were recorded under section 313 of the Code of Criminal Procedure. 7. After analyzing the evidence, the trial court vide its judgment of conviction and order of sentence dated 27.08.2008 and 29.08.2008, respectively convicted these appellants/accused for the offence under Sections 302/34 of the Indian Penal Code and sentenced them to undergo imprisonment for life and further sentenced to pay a fine of Rs. 1000/- each. 8. Being aggrieved by the said judgment of conviction and sentence awarded to the appellants, these appellants have preferred the instant appeal. 9. Learned counsel appearing for the appellants submits that the prosecution miserably failed to prove the case against these appellants. He submits that the depositions of all the witnesses are contradictory to each other and they have not supported the prosecution version. He submits that no incriminating articles were recovered from the possession of these appellants and there is no independent witness to the said occurrence. It is submitted that in fact there is no eye witness to the said occurrence as no one has seen the appellants hurling bomb upon the deceased. He submits that no incriminating articles were recovered from the possession of these appellants and there is no independent witness to the said occurrence. It is submitted that in fact there is no eye witness to the said occurrence as no one has seen the appellants hurling bomb upon the deceased. He submits that there is consistent evidence that on hearing the sound of bomb blast the informant (P.W.10), P.W.3 and P.W.6 came out of the house and they saw these three appellants standing by the injured. It is admitted that the appellants are next door neighbour. They also came out after hearing the sound of blasts and thus, there are no materials to infer that the appellants have committed the offence. He submits that, if the evidence of P.W.3, 6 and 10 is scrutinized properly, the only conclusion which can be reached is that they are not the eye witness to the occurrence rather are post occurrence witnesses. He submits that on this basis the appellants cannot be convicted. 10. On the other hand, learned Addl. P.P. opposes the arguments of the appellants and stated that although there are some discrepancies in the statement of the eye witnesses, yet they are consistent about the fact that immediately after the occurrence they came there and saw the accused persons present at the place of occurrence. He further stated that although the eye witnesses are related to the deceased, they are natural witness because the place of occurrence was in front of their door. He further stated that from the evidence of the prosecution witnesses it is clear that there was an enmity between the accused persons and deceased due to land dispute. He further stated that the doctor who conducted the post mortem has deposed that the death was caused by explosive material which also corroborates the prosecution case. 11. P.W.1 (Santosh Kumar), is the post occurrence witness. 12. P.W.2 (Rojan Mian) is hearsay witness. He deposed that the deceased was killed due to land dispute. During cross examination he stated that on hearing hulla he had gone to the place of occurrence and found the dead body lying at the door. 13. P.W.-3 (Mahiruddin Ansari), son of the deceased claimed himself to be an eye witness. He deposed that he had seen Khalil Mian, Jakir Mian and Salim Mian who killed his father with bomb and thereafter, fled away. 13. P.W.-3 (Mahiruddin Ansari), son of the deceased claimed himself to be an eye witness. He deposed that he had seen Khalil Mian, Jakir Mian and Salim Mian who killed his father with bomb and thereafter, fled away. He further deposed that there was an enmity between the accused persons and his father due to land dispute and for that reason they killed him. In cross-examination he stated that he, his mother and sister came out of the house after the bomb blast. 14. P.W.4 (Alauddin Ansari), claimed to be an eye witness of the occurrence. He deposed that at about 8.00 P.M. Salim Mian, Kalim Mian, Khalil Mian and Jakir Mian killed Hemtali Mian with bomb. During cross-examination he deposed that at the time of bomb explosion he was in the house and on hearing sound he was the first person who came out of the house and, thereafter, informant came out with lantern. 15. P.W.-5 (Babujan Mian), is the seizure list witness of the blood stained soil, thread and some pieces of exploded bomb and he proved his signature on the seizure list as exhibit-1. 16. P.W.-6 (Aisha Khatoon) claimed to be an eye witness. She deposed that on 22.10.2003 at about 8.00 P.M, she was sitting at the door and was waiting for her father. In the meantime, Khalil, Jakir, Kalim and Salim threw bomb upon her father who was coming from Bhandaridih. Three bombs were exploded and consequently her father got injured and the accused persons were present there seeing her father lying. The present witness, her mother and brother went near the deceased and raised hulla. In cross-examination she stated that she was waiting for her father alongwith her mother and brother at the door of the house. Three persons had exploded the bomb and all the bombs had been thrown at the same time. After explosion of bomb the accused persons remained there for about 5 minutes. 17. P.W.-7 (Ilyas) was the inquest witness and the inquest report is marked as exhibit-4. 18. P.W.-8 (Arjun Paswan) is the Choukidar of Town Police Station. He produced written report with seized material i.e. blood stained soil, thread of bomb and piece of pant. The written report is marked as exhibit-2. 19. 17. P.W.-7 (Ilyas) was the inquest witness and the inquest report is marked as exhibit-4. 18. P.W.-8 (Arjun Paswan) is the Choukidar of Town Police Station. He produced written report with seized material i.e. blood stained soil, thread of bomb and piece of pant. The written report is marked as exhibit-2. 19. P.W.-9 (Mahruddin) deposed that in his presence the materials i.e. piece of trouser, thread and blood stained soil had been seized which have been marked as material exhibit-I, II and III, respectively. 20. P.W. 10 (Zulekha Khatoon) is the informant of the case and claimed to be an eye witness. She deposed that she heard the explosion of bomb and then she alongwith her son and daughter came out of the house with a lantern and saw her husband in injured condition. Khalil Mian, Jakir Mian, Salim Mian and Kalim Mian were standing there. Accused Khalil Mian, Kalim Mian and Salim Mian was holding bomb and they hurled bomb upon the deceased, consequently her husband was injured badly. The accused persons were standing there but when she raised hulla they fled away from the place of occurrence. She further stated that the accused Khalil had an apprehension that the deceased had involved himself in the selling of land of his brother and since than he had an enmity with the deceased and as such he killed the deceased. In cross examination she reiterated her statement in the fardbeyan. There are six-seven houses adjacent to the house of the present witness and the accused persons. There was dispute between the deceased and the accused persons related to her land. 21. P.W.-11 (Dr. B.N.Das) had conducted the post mortem on the dead body of deceased and post mortem report is marked as exhibit-3. He deposed that all the injuries are ante mortem in nature caused by explosive material. 22. P.W.-12 (Baleshwar Pd. Singh) is the investigating officer of the case. He proved the endorsement on the fardbeyan, fradbeyan and formal F.I.R. which were marked as exhibits 5, 6 and 7. He further proved the seizure list which is marked as exhibit-8. He deposed that all the injuries are ante mortem in nature caused by explosive material. 22. P.W.-12 (Baleshwar Pd. Singh) is the investigating officer of the case. He proved the endorsement on the fardbeyan, fradbeyan and formal F.I.R. which were marked as exhibits 5, 6 and 7. He further proved the seizure list which is marked as exhibit-8. He deposed that the place of occurrence was in front of the house of the informant and he found blood stains on the soil, thread and small piece of iron, piece of trouser at the place of occurrence and as such he seized all these articles and prepared the seizure list and he also submitted the charge-sheet. He also wrote for sanction but the same was not given. 23. P.W.-13 (Mahendra Pd. Singh) is an Advocate of Giridih Court. He deposed that Sanha No. 1384 of 2003 dated 29.08.2003 was filed by him on behalf of Hemtali Mian. He proved the Sanha which is marked as exhibit-10. 24. Defence Witness- (Md. Khalil) deposed that he had given land to the deceased and for which the deceased had assured to give him Rs. 5000/- after construction of house but when he asked for the same, the deceased refused to give any money and as such after the occurrence he has been implicated in this case. 25. We have heard learned counsel for both the parties and gone through the entire lower court record. 26. P.W.10, who is the informant in this case and claimed to be an eye witness, deposed that when she heard the sound of bomb blasts, she along with her daughter (P.W-6) and son (P.W.-3) came out from the house with a lantern and saw her husband lying in injured condition and these three appellants were standing there. She saw that the accused Khalil Mian, Kalim Mian and Salim Mian having bombs in their hands. She stated that she asked these appellants how her husband was killed. She stated that the motive behind the occurrence is the dispute in relation to purchase and sell of land. 27. P.W.3 who claims to be an another eye witness and the son of the deceased, in his evidence says that he had seen that these appellants have hurled bomb and committed murder of the deceased. She stated that the motive behind the occurrence is the dispute in relation to purchase and sell of land. 27. P.W.3 who claims to be an another eye witness and the son of the deceased, in his evidence says that he had seen that these appellants have hurled bomb and committed murder of the deceased. He says that the deceased was threatened on an earlier occasion by these appellants and the reasons of the dispute relates to some lands. In paragraph 17 of his cross-examination, he admits that they were inside the house and only on hearing the sound of blasts they came out of the house with the lantern. In his cross-examination in para 19, he further states that only after hearing the sound of blasts, he, his mother (informant) and his sister (P.W.6) came out from the house and saw these appellants standing their. He further states that when they raised hulla, these appellants blasted two more bombs and fled away from the place. It is not the prosecution case that when these witnesses reached to the place of occurrence, the appellants further hurled bombs. This witness tried to modify the prosecution case. Further, from the conjoint reading of the evidence of this witness and P.W.10, it is quite clear that these witnesses were inside the house when the bomb was thrown and came out only after hearing noise of the bomb. 28. P.W.6 who also claims to be an eye witness and claim that she has seen the occurrence. She in her examination-in-chief has not narrated the fact as narrated by the P.W.3 that second time bomb was hurled when they reached the place of occurrence. So this portion of the evidence that the bomb was hurled for the second time, is not believable as there is no corroborative evidence to that effect. This was also not the case in F.I.R. So far the claim of this witness to be an eye witness is concerned, the evidence of P.Ws 10 and 3 clearly suggest that they were in the house and they came out of the house only after hearing the sound of blast and found the deceased lying on the road and these appellants were standing their. Thus, this creates a doubt as to whether really these P.Ws. 3, 6 and 10 were eye witness to the occurrence or not. 29. Thus, this creates a doubt as to whether really these P.Ws. 3, 6 and 10 were eye witness to the occurrence or not. 29. P.W.4 is the nephew of the deceased who in para 20 of his evidence submits that he was the first person who reached the place of occurrence and only thereafter, others came. He further deposed that when he reached the place of occurrence these appellants who were standing there, started to flee. The statement of this witness also creates a doubt as to whether P.Ws. 3, 6 and 10 can be said to be an eye witness or not. Thus, from the aforesaid evidence it can be deduced that none of the witnesses seen these appellants hurling bomb upon the deceased. The only fact which finds supports from the evidence of the P.Ws. is that these three appellants found standing, next to the injured. On the aforesaid evidence it cannot be concluded beyond reasonable doubt that these appellants have hurled bomb upon the deceased as no one has seen these appellants hurling bomb. Further the evidence of P.W.3 to the effect that these three appellants for the second time hurled bomb when he reached the place of occurrence is not a reliable statement as the same is not corroborated by any evidence nor it is the prosecution case. Mere fact the appellants were standing next to the injured/deceased immediately after the occurrence, that to in a residential area being a neighbour cannot give rise to any conclusion that these are the assailants when there is no eye witness to depose that these are the appellants who have committed the murder. 30. Thus, from the aforesaid finding, it can safely be concluded that the prosecution has failed to prove the case beyond all reasonable doubts. Thus, finding no other option, we set aside the impugned judgment of conviction and order of sentence dated 27.08.2008 and 29.08.2008, respectively and acquit the appellants from the charges. 31. This appeal stands allowed. The appellants who are in custody are directed to be released immediately, if not wanted in any other case. 32. Accordingly, this appeal stands allowed.