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2018 DIGILAW 117 (JHR)

Aisha Khatoon v. State of Jharkhand

2018-01-15

KAILASH PRASAD DEO

body2018
JUDGMENT : 1. This Criminal Appeal was admitted for hearing by all order dated 16.4.2004. By this order, the order of sentence dated 16th December, 2003 was suspended and pending final hearing of this appeal the appellant was granted bail. 2. Heard learned counsel for the appellant and learned counsel for the State. 3. The instant Criminal Appeal is directed against the judgment of conviction and order of sentence both dated 16th December, 2003 in Sessions Trial No. 432 of 1995 passed by the then learned Addl. Judicial Commissioner, Fast Track Court, Ranchi, whereby the sole appellant-Smt. Aisha Khatoon has been convicted for the offence under Section 304, Part I of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 4. The prosecution case is based upon the ‘fardbeyan’ of the informant Shamsuddin Ansari, He late Sarfuddin Ansari. He is son of the deceased. It was recorded by the Sub-Inspector Y. Kharia of Muri O.P., P.S. Sili at camp, village Kutam at 7.00 a.m. on 28.9.1994. The informant has stated that after returning from Jhalda on 27.9.1994 at 5 p.m., he went to purchase some articles at the shop in the village. At 6.00 p.m., her neighbour Kaishar Khatoon, w/o Kasir Ansari came where he was purchasing some articles and disclosed that co-villager Aisha Khatoon w/o Khalid Ansari has killed his mother Zulekha Khatoon, aged about 60 years by assaulting her by feet and fist on her chest. When the informant and other persons standing there went to his house they saw the dead-body of his mother Zulekha Khatoon. On enquiry from his wife namely, Azeeman Khatoon, it was disclosed that when Aisha Khatoon abused wife of the informant by saying her 'Banjh' (a lady who cannot give birth to a child), his mother objected to this and also objected to the filthy language used by Aisha Khatoon, whereupon Aisha Khatoon assaulted his mother by kick and fist on her chest, causing her death. It is also stated that when the informant’s wife went for rescue, she has also sustained some minor injuries. It is also stated that when the informant’s wife went for rescue, she has also sustained some minor injuries. On the basis of the aforesaid 'fardbeyan' of the informant, the police instituted First Information Report being Silli (Muri) P.S. Case No. 71 of 1994 (dated 27.9.1994) corresponding to G.R No. 2741 of 1994 under Section 302, IPC, however, after investigation the Police submitted charge-sheet vide charge-sheet No. 48 of 1994 dated 30th October, 1994 against the accused Aisha Khatoon for offences under Sections 304 and 323, IPC. 5. Learned counsel Judicial Magistrate took cognizance of the offence vide order dated 8.12.1994 under Sections 304 and 323 of the Indian Penal Code and thereupon the case has been committed to the Court of Sessions vide notification dated 26.4.1996. Charge has been framed against sole appellant/accused Aisha Khatoon under Sections 304/323 of the Indian Penal Code on 9.7.1996 to which she pleaded not guilty and thus she was put under trial. 6. The prosecution has examined altogether 8 witnesses. PW 1, Sk. Shamsuddin is the informant of this case and the son of the deceased. This witness has stated that after returning from the Jhalida market, he went to village shop for purchasing some articles. In the' meantime, Kaishar Khatoon, co-villager came there and disclosed that her mother has been killed by Aisha Khatoon by assaulting her by feet and fist on her chest. The informant has stated that he saw the dead-body of his mother on the road and found the chest of his mother swollen. Informant has further stated that when he inquired from his wife Azeeman Khatoon about the incident then she disclosed that Aisha Khatoon was saying her 'Baryh' upon which his mother raised objection and thereafter Aisha assaulted his mother causing her death. When his wife came for rescue. Aisha assaulted her. She also sustained some injury on the right hand. The informant has stated that the police recorded his statement. He has identified his signature on the 'fardbeyan' which has been proved and marked as Exhibit-1/1. This witness has identified his signature on the inquest report which was been proved and marked as Exhibit 2/1. This witness has also identified the accused Aisha Khatoon in the dock. The informant has stated that the police recorded his statement. He has identified his signature on the 'fardbeyan' which has been proved and marked as Exhibit-1/1. This witness has identified his signature on the inquest report which was been proved and marked as Exhibit 2/1. This witness has also identified the accused Aisha Khatoon in the dock. During cross-examination, this witness has stated that when he was purchasing some articles from the shop of co-villager Anuruddin at around 6 p.m., at that-time he and Anuruddin were only present. He has admitted that he informed the police at 9 p.m., which recorded his statement at the Police Station and when the police came to the village he disclosed that the dead-body was lying on the road. 7. Sk. Kutbuddin has been examined as PW 2. This witness is hearsay witness. He is one of the signatories of the 'fardbeyan' and inquest report and his signatures have been proved and marked as Exhibit 1/2 and Exhibit 1/3 respectively. This witness has admitted during cross-examination at paragraph 4 that Sk. Shamsuddin, the informant of the case is his son-in-law whose statement was recorded and read over to them and also inquest report was written and read over to them, upon which he put his signature. This witness has also admitted that after the occurrence, he went to the Police Station. This witness has not stated anything about the manner of occurrence and the person who caused the death. 8. Kaishar Khatoon has been examined as PW 3. As per the First Information Report, she is the lady who gave information to the informant about occurrence, but she has not supported the case of the prosecution in her examination-in-chief and has been declared hostile by the prosecution. During cross-examination, this witness has stated that Zulekha Bibi was aged about 60 years and she was ill and as such, she could not walk herself without support and she was suffering from heart disease. 9. Haroon Ansari has been examined as PW 4. He has been declared hostile by the prosecution. 10. Azeemun Khatoon, wife of the informant and daughter-in-law of the deceased has been examined as PW 5. She claims herself to be an eye-witness to the occurrence. During cross-examination, this witness has stated that when the occurrence took place, she was in her courtyard. He has been declared hostile by the prosecution. 10. Azeemun Khatoon, wife of the informant and daughter-in-law of the deceased has been examined as PW 5. She claims herself to be an eye-witness to the occurrence. During cross-examination, this witness has stated that when the occurrence took place, she was in her courtyard. Her mother-in-law Zulekha Khatoon was assaulted by Aisha Khatoon by feet and fist on her chest causing her death. She has further stated that Aisha Khatoon called her as 'Banjh' and for this reason the quarrel took place as her mother-in-law was objecting to the same. When this witness went there, Aisha pushed her due to which she fell down and sustained some injuries. She has further stated that Zulekha Khatoon died on the spot. She has claimed to identify Aisha Khatoon. This witness has further stated that her house is in village-Kutam and her house is situated near the houses of Hasan, Manak and Jamshed and others are also there. There is a passage between the houses which is the only road for the villagers. The evening was dark at the time of occurrence and in the house she was staying with her mother-in-law and her husband, but her husband was not present at the time of occurrence, as he had gone to the shop. Atparagraph-7 of the cross-examination, this witness has categorically stated that there was no quarrel or any fight prior to this occurrence with the accused-Aisha. After one hour of the occurrence, her husband came along with Kutubuddin and some villagers and her husband informed the police on the same right. The police also came in the same night itself. She has further stated that her mother-in-law was never ill prior to this occurrence. In reply to the Court's question, this witness has stated that her mother-in-law died on the spot and the police brought the dead-body in the courtyard, prepared inquest report and sent the dead-body in the morning for post-mortem. During cross-examination, this witness has admitted that she is not a 'Banjh' rather she has a child of 2 years. This witness has further stated that at the time of occurrence, there was no hullah and the road is situated at a distance of 4 deg (steps) from the house. It is adjacent to the road. During cross-examination, this witness has admitted that she is not a 'Banjh' rather she has a child of 2 years. This witness has further stated that at the time of occurrence, there was no hullah and the road is situated at a distance of 4 deg (steps) from the house. It is adjacent to the road. The courtyard is situated in front of the house at a distance of 4 deg (steps) from her house. The courtyard and the house are within the same compound and at a distance of 4 steps/deg, the house of Aisha (appellant) is situated. This witness has further stated that she disclosed to the Police that she has sustained some injury from the wood/Kathi. 11. Md. Khizabuddin has been examined as PW 6, however, he has been declared hostile by the prosecution. 12. Dr. Ram Sewak Sahu is the Medical Officer. He has been examined as PW 7. This witness has stated that on 28.9.1994 he conducted the post-mortem examination on the dead-body of Zulekha Bibi, aged about 62-70 years at RMCH, Ranchi brought by Constable-No. 109, Arbind Singh and found that (i) There was no evidence of any mechanical injury either external or internal. There was no evidence of pressure over nose, mouth, neck or chest. The internal organs were congested. Viscera was preserved. Opinion :- Regarding cause of death was kept reserved, pending chemical examination. He proved the post-mortem report as well as his signature on the post-mortem report which is marked as Exhibit-2. During cross-examination, this witness has said that there was no evidence of any mechanical injury over the chest of the deceased. 13. Yogi Kharia is the Sub-Inspector of Police who has been examined as PW 8. He is the same person, who has recorded the 'fardbeyan of the informant Sk. Shamsuddih and also investigated the case. This witness has proved the 'fardbeyan' in his own handwriting bearing signature of the informant and Kutubuddin which is marked as Exhibit-3 and formal FIR in the handwriting of Pritam Sharma, Officer-in-charge, Silli, which has been proved and marked as Exhibit 3/1. The inquest report was proved and marked as Exhibit 4. This witness has said that after preparing inquest report, he sent the dead-body for post-mortem examination to the RMCH and thereafter conducted the investigation of the case and submitted charge-sheet against Aisha Khatoon under Sections 304/323 of the Indian Penal Code. The inquest report was proved and marked as Exhibit 4. This witness has said that after preparing inquest report, he sent the dead-body for post-mortem examination to the RMCH and thereafter conducted the investigation of the case and submitted charge-sheet against Aisha Khatoon under Sections 304/323 of the Indian Penal Code. The place of occurrence is situated at village-Kutam in the courtyard of Zulekha Khatoon (deceased) which had tiled roof and the village is situated at a distance of about 7 Kilometres from Muri out-post, where this witness was posted at the relevant time. The witness has stated that the place of occurrence is adjacent to the village road. The dead-body of Zulekha was found in a room in the tiled house of Samsuddin Ansari, s/o Zulekha Khatoon (deceased). 14. After recording the statement of the accused under Section 313 of the Criminal Procedure Code, the matter was heard by the learned. Trial Court The learned trial Court has convicted the appellant for the offence punishable under Section 304, Part 1 of the Indian Penal Code and awarded the sentence of RI for ten years. 15. Mr. Mokhtar Khan, learned counsel for the appellant submits that the conviction and sentence of the appellant is not sustainable in the eyes of law as the version of the informant recorded by the police at Police Station in the night of the occurrence has not been brought on record of this case. Apart from this, PW 7, Dr. Ram Sewak Sahu has categorically stated that he had not found any evidence of any mechanical injury either external or internal. There was no evidence of pressure over nose, mouth, neck or chest. Learned counsel has further submitted that PW 1, Sk. Shamsuddin, son of the deceased (Zulekha Khatoon) is not an eyewitness to the occurrence rather entire case is based upon the statement of Kaishar Khatoon who has been examined as PW 3, but has been declared hostile by the prosecution. Learned counsel has further submitted that evidence of PW 5 (Azeemun Khatoon), wife of the informant and daughter-in-law of the deceased cannot be relied upon because her statement is doubtful. 16. Learned APP has submitted that there is no infirmity in the impugned judgment of conviction and order of sentence rather the evidence of PW 5 is sufficient for conviction of the appellant. 16. Learned APP has submitted that there is no infirmity in the impugned judgment of conviction and order of sentence rather the evidence of PW 5 is sufficient for conviction of the appellant. Learned counsel has fairly admitted that PW 3 (Kaishar Khatoon) has not supported the case of the prosecution and has been declared hostile. 17. After hearing the learned counsel for the appellant and learned counsel for the State and on perusal of the records, I find that the prosecution has suppressed the initial statement of the informant recorded by the police at the Police Station in the same night and it has not been brought on record. The medical evidence completely belies the prosecution case. The Doctor has found Zulekha Khatoon a lady aged about 60-70 years. She had not sustained any mechanical injury either external or internal nor was there any evidence of pressure over the nose, mouth, neck, chest and as such, the Doctor could not give any definite opinion on cause of death. PW 5 has stated that she also sustained injury because of push by Aisha, but no such injury was found on her. No injury report has been exhibited nor the same has been stated by the Medical Officer or the Investigating Officer and as such, the statement of Azeemun Khatoon (PW 5) is not worth acceptance. Apart from this, this lady has admitted at paragraph 12 of her cross-examination that she has a daughter of 2 years, meaning thereby, the initial version of the prosecution case that she is 'Banjh' and when the accused/appellant Aisha Khatoon accused her of the same it was objected by the deceased Zulekha creates doubt about the genesis of the prosecution case. In the above set of evidence, after having scrutinized the materials on record, I am of the opinion that the learned Addl. Judicial Commissioner committed serious error in law in convicting the appellant for the offence punishable under Section 304, Part I of the Indian Penal Code. The prosecution has failed to establish the charge under Section 304/323, IPC against the appellant beyond all shadows of reasonable doubt. Finding serious contradictions in the prosecution case, I am of the opinion that the appellant is entitled for benefit of doubt. 18. The prosecution has failed to establish the charge under Section 304/323, IPC against the appellant beyond all shadows of reasonable doubt. Finding serious contradictions in the prosecution case, I am of the opinion that the appellant is entitled for benefit of doubt. 18. In view of the above, I find that the impugned judgment of conviction and order of sentence both dated 16.12.2003 in Sessions Trial No. 432 of 1995 by learned Addl. Judicial Commissioner, Fast Track Court, Ranchi, cannot be sustained in the eyes of law. 19. In the result, this Criminal Appeal stands allowed. The appellant is discharged from liability of her bail bonds. 20. Let the LCR be sent to the concerned trial Court along with a copy of this judgment at once. Appeal allowed.