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2018 DIGILAW 567 (JHR)

Naji Sk. v. State of Jharkhand

2018-03-12

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : H.C. MISHRA, J. 1. Heard learned amicus curie appointed by the Court for the appellant and the learned counsel for the State. 2. The appellant is aggrieved by the Judgment of conviction dated 27.07.2011 and Order of sentence dated 28.07.2011, passed by the learned Sessions Judge, Pakur, in S.C. No. 62 of 2008, whereby the appellant has been found guilty and convicted for the offence under Sections 302 / 34 of the Indian Penal Code. Upon hearing on the point sentence, the appellant has been sentenced to undergo R.I. for life and fine of Rs.2,000/-for the said offence. 3. The prosecution case was instituted on basis of the fardbeyan of the informant Wahida Bibi, the wife of the deceased Sadik Sheikh, recorded on 31.12.2006 at about 8:00 P.M., at village Sahabajpur, P.S. Pakur (Mufassil), District Pakur, near the house of one Harishankar Saha, where the dead body of the deceased was found. The informant has stated that her husband Sadik Sheikh was looking after the agriculture in the said village, and for some work he had gone to the village Sahabajpur on that day at about 10.00 A.M., in the morning. At about 7.00 P.M. in the evening, the informant was informed at her village Bhawanipur, that her co-villagers Fitu Sheikh, Sariul Sheikh, Nafis Sheikh and Naji Sheikh, who were of criminal nature, had committed the murder of her husband at village Sahabajpur. As to the cause of occurrence, she has stated that these persons were turned out from the village due to their criminal nature, and they were asking her husband to become their informer, for which her husband was not agreeable and due to the said reason her husband was murdered. Upon getting the information, she along with her brother Asraful Sheikh went to the place of occurrence and saw the dead body of her husband in front of the house of Harishankar Saha, with several stab injuries on the dead body. Claiming, that the aforesaid accused persons had committed the murder of her husband, the fardbeyan was given by the informant, on the basis of which Pakur (Mufassil) P.S. Case No. 292 of 2006, corresponding to G.R. No. 01 of 2007, was instituted for the offence under Sections 302 / 34 of the Indian Penal Code, against the four named accused persons, and investigation was taken up. After investigation the police submitted the charge-sheet in the case. The record however, shows that the accused persons were tried separately, and in the present case, only the accused Naji Sk. was put to trial. 4. After commitment of the case to the Court of Session, charge was framed against the accused for the offence under Sections 302 / 34 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course of trial nine witnesses were examined on behalf of the prosecution, including the Investigating Officer and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of the witnesses examined by the prosecution, P.W.-5 Humayun Sheikh and P.W.-8 Gautam Saha have turned hostile and have not supported the prosecution case at all. P.W.-8 Gautam Saha is also a witness to the inquest report of the dead body, and has identified his signature on the inquest report, which was marked Exhibit-1/1. 5. P.W.-6 Wahida Bibi is the informant and the wife of the deceased. This witness has stated that the occurrence had taken place about three years eight months ago, on a Sunday. She was in her house and her husband had gone to Sahabajpur village. She heard that Nafis Sheikh, Fitu Sheikh, Nozi Sheikh, Sariul Sheikh, had committed the murder of her husband, whereupon she went to the place of occurrence along with her brother Asraful Sheikh, where she saw the dead body of her husband near the house of Harishankar Saha. The persons nearby informed that those accused persons had committed the murder. This witness has not disclosed the name of any person who had informed her about the occurrence. She has also stated that the accused persons were her co-villagers and due to their criminal nature, they were turned out of the village, and they were asking her husband to be their informer, which was not agreeable to her husband, due to which, they had committed the murder. She has identified the accused in the Court as Noji Sk. In her cross-examination, she has stated that Noju Sk. is the brother of the accused Naji Sk. She has denied the suggestions that she is not the wife of the deceased, and that her husband was of criminal nature and he was killed by the unknown criminals. 6. She has identified the accused in the Court as Noji Sk. In her cross-examination, she has stated that Noju Sk. is the brother of the accused Naji Sk. She has denied the suggestions that she is not the wife of the deceased, and that her husband was of criminal nature and he was killed by the unknown criminals. 6. P.W.-1 Asraful Sheikh is the brother of the informant and he has stated that he had gone to the place of occurrence along with his sister, where he saw the dead body of Sadik Sheikh at village Sahabajpur, near the house of Harishankar Saha, where the villagers informed them that Fitu Sheikh, Sariul Sheikh, Nafis Sheikh and Nozi Sheikh, had committed the murder. He has also not named any person, who had informed him about the occurrence. He has also identified the accused in the Court as Noji Sk. In his cross-examination he has admitted that he had only heard about the occurrence. He has also admitted that Naju Sk. is the brother of Noju Sk. He has also denied the suggestions that that the deceased was of criminal nature and he was killed by the unknown criminals. 7. P.W.-3 Nurful Sheikh and P.W.-4 Nasruddin Sheikh have claimed themselves to be the eyewitnesses to the occurrence. Both of them are the residents of village Purani Farsa, and they have stated that at the time of occurrence, they were in the village, Sahabajpur and they claimed to see the occurrence. They have made only omnibus allegation against all the four named accused persons, viz., Fitu Sheikh, Sariul Sheikh, Nafis Sheikh and Nozi Sheikh, to have assaulted the deceased by knife. They have stated that after committing the offence, the accused persons had threatened them. They have also identified the accused in the Court as Noji Sk. In his cross-examination P.W.-3 Nurful Sheikh has admitted that Naji Sk. and Noju Sk. are two brothers. He has also denied the suggestion that that the deceased was killed by the unknown criminals. P.W.-4 Nasruddin Sheikh has admitted in his cross-examination that 20-25 persons had assembled at the Place of occurrence. He has also denied the suggestion that that he had not gone to the village of occurrence and to have falsely implicated the accused. 8. P.W.-2 Amir Hamja is only a witness to the inquest report of the dead body. P.W.-4 Nasruddin Sheikh has admitted in his cross-examination that 20-25 persons had assembled at the Place of occurrence. He has also denied the suggestion that that he had not gone to the village of occurrence and to have falsely implicated the accused. 8. P.W.-2 Amir Hamja is only a witness to the inquest report of the dead body. He has identified his signature on the inquest report, which was marked Exhibit-1. This witness has stated nothing about the occurrence. 9. P.W.-7 Dr. Shyam Prasad Bhagat had conducted the post-mortem examination on the dead body of the deceased on 1.1.2007 and had found the following ante-mortem injuries on the dead body : 1. Incised wound over right occipital region 3” x 1 ½” x bone deep. 2. Lacerated wound mid-occipital region of scalp 3” x 3” x bone deep with fractured of occipital bone. 3. Multiple stabs injuries found over chest and upper abdomen. 4. Right lower chest 1 & ½” x cavity deep. 5. Left lower chest penetrating wound 1” x ½” x cavity deep. 6. Left lower chest penetrating wound axillary area 1” x ½” x cavity deep. 7. Left lower chest, penetrating wound 1” x ½” x cavity deep. 8. Left mid-chest, penetrating wound 1” x ½” x cavity deep. 9. Over epigestic region of abdomen 1” x ½” x cavity deep, penetrating wound. 10. Right base of neck 1” x ½” x cavity deep, penetrating wound. 11. Based of mid-neck penetrating wound ½” x ½” x cavity deep. 12. Incised wound front of neck, 4” x 3” x muscle deep. On dissection:- Skull: Fracture of occipital bone was found. Brain and meninges were found intact. Neck:-Base of neck, penetrating wound found leading to chest cavity, and puncture of left lungs. Chest:-Chest cavity was found of full of altered blood. Left penetrating wound found leading to left side of heart. Mid-chest left penetrating wound found leading to heart and punctured and base of heart. Both chambers of heart found empty. Abdomen:-Lower chest wound found punctured the abdominal cavity, abdominal cavity was found of full of blood. Liver found punctured, stomach found punctured ½” x 1” at the anterior wall of stomach. Stomach found empty, spleen and kidney found OK, small and large intestine full of gases and faecal matter. Bladder empty, geneteria intact. Both chambers of heart found empty. Abdomen:-Lower chest wound found punctured the abdominal cavity, abdominal cavity was found of full of blood. Liver found punctured, stomach found punctured ½” x 1” at the anterior wall of stomach. Stomach found empty, spleen and kidney found OK, small and large intestine full of gases and faecal matter. Bladder empty, geneteria intact. He has stated that injury No.2 was caused by hard and blunt substance and the rest of the injuries were caused by sharp penetrating weapon and the death was caused due to the head injury and injuries on the vital organs like heart, lungs and extensive internal bleeding. He has identified the post-mortem report to be in his pen and signature which was marked Exhibit-2. 10. P.W.-9 Sudama Singh is the I.O of the case. He has stated that on 31.12.2006, he was posted at Pakur (Muffasil) Police Station, when he got the rumour that one person was murdered at Sahabajpur. He proceeded to the place of occurrence, where he recorded the fardbeyan of the wife of the deceased, which he identified to be in his pen and signature, and the same was marked as Exhibit-3. He prepared the inquest report of the dead body which he has proved and the same was marked Exhibit-4. He inspected the place of occurrence and has given the details thereof. He had found the dead body at a distance of about 4 feet from the house of Harishankar Saha. He recorded the statements of the witnesses and after getting the post-mortem report and completing the investigation, he submitted the charge-sheet. He has proved the formal FIR, which was marked Exhibit-5. He had arrested the accused Naji Sk. on 2.4.2007, and has identified the accused in the Court. In his cross-examination, he has stated that he had seized bloodstained soil from the place of occurrence, but he had not sent it for examination. He had arrested the accused Naji Sk. after about three months of the occurrence, but he had not collected any evidence against him after his arrest. He has denied that Noju Sk. was the accused in the case and has denied the suggestion to have arrested wrong person. He has denied the suggestion of making faulty investigation. 11. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against them. He has denied that Noju Sk. was the accused in the case and has denied the suggestion to have arrested wrong person. He has denied the suggestion of making faulty investigation. 11. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against them. No defence witness was examined in the case. 12. On the basis of the evidence on record, the appellant has been found guilty, convicted and sentenced for the offence as aforesaid. The impugned Judgment shows that though the Trial Court below has taken note of the difference in the name of the accused facing the trial and the accused named by the witnesses, but has found the appellant guilty and convicted him on the ground that the witnesses have identified this accused in the Court, and there is clinching evidence against him in the depositions of the eye witnesses P.W.-3 Nurful Sheikh and P.W.-4 Nasruddin Sheikh. 13. Learned amicus curie, arguing for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as, the prosecution has failed to bring home the charge against the appellant beyond all reasonable doubts. Learned amicus curie submits that the informant and her brother are not the eyewitnesses to the occurrence, and the two eyewitnesses, namely, P.W.-3 Narful Sheikh and P.W.-4 Nasiruddin Sheikh are not the residents of the village Sahabajpur, and they are only chance witnesses, whose presence at the place of occurrence is very doubtful. The false implication of the accused by the prosecution witnesses cannot be ruled out. Learned amicus curie submitted that all the witnesses have named the accused Noji Sk., to have committed the offence, but the accused appellant is Naji Sk., and the witnesses have specifically admitted that Noju Sk. and Naji Sk. are two brothers. Even the I.O. of the case P.W.-9 Sudama Singh has admitted that he had arrested this accused after about three months of the occurrence, and had not collected any evidence against him after his arrest. Learned amicus curie has also pointed out that the other co-accused persons, Sairul Sk. and Naji Sk. are two brothers. Even the I.O. of the case P.W.-9 Sudama Singh has admitted that he had arrested this accused after about three months of the occurrence, and had not collected any evidence against him after his arrest. Learned amicus curie has also pointed out that the other co-accused persons, Sairul Sk. and Nafis Sk., who were also convicted and sentenced on the same allegation, in different trials, have since been acquitted by this Court by unreported Judgment dated 7th of March, 2018, passed in Cr. App. (DB) No.674 of 2011 and Cr. App. (DB) No.676 of 2011 respectively, filed by them, holding that the eyewitnesses to the occurrence were only the chance witnesses and their evidences did not inspire confidence at all. Learned amicus curie accordingly, submitted that the prosecution has failed to bring home the charge against the appellant beyond all reasonable doubts and it is a fit case in which the appellant should also be given the same benefits, as have been given to the other co-accused, as the allegation / evidence against all of them is same. 14. Learned counsel for the State on the other hand, has opposed the prayer and has submitted that the case is fully supported by two eyewitnesses, who are P.W.-3 Nurful Sheikh and P.W.-4 Nasruddin Sheikh and they have stated that all the accused persons, including this appellant, had assaulted the deceased to death, by knife. The other witnesses, namely, the informant P.W.-6 Wahida Bibi and P.W.-1 Asraful Sheikh are the hearsay witnesses and they were also informed about the occurrence by the villagers. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-7 Dr. Shyam Prasad Bhagat, who had found several stab wounds on the dead body of the deceased. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charge against the accused appellant beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and order of sentence passed by the Trial Court below. 15. Having heard learned counsels for both sides and upon going through the record, we find that P.W.-6 Wahida Bibi, the informant and the wife of the deceased, and PW.-1 Asraful Sheikh are only the hearsay witnesses. 15. Having heard learned counsels for both sides and upon going through the record, we find that P.W.-6 Wahida Bibi, the informant and the wife of the deceased, and PW.-1 Asraful Sheikh are only the hearsay witnesses. They were informed by the villagers about the occurrence, but none of them have disclosed the names of the persons who had informed them about the involvement of the accused appellant in the occurrence. The evidence of these witnesses also creates substantial doubt about the involvement of the accused, as the accused is named by them as Noji Sk., though according to the fardbeyan of the informant the accused is named as Naji Sk., who has also faced the trial. Though the case is supported by two eyewitnesses, namely, P.W.-3 Nurful Sheikh and P.W.-4 Nasruddin Sheikh, but the fact remains that they have also named the accused as Noji Sk. Both these witnesses have not stated about any specific role of the appellant, rather they have made only omnibus allegation against all the four accused persons. Both these eyewitnesses are the residents of different village and they are only the chance witnesses, stating that at the time of occurrence, they were at village Sahabajpur. P.W.-4 Nasruddin Sheikh has admitted in his cross-examination that 20-25 persons had assembled at the Place of occurrence, but none of the witnesses of village Sahabajpur has been examined in the case. The informant P.W.-6 Wahida Bibi, PW.-1 Asraful Sheikh and P.W.-3 Nurful Sheikh have admitted in their cross-examination that Noju Sk. and Naji Sk. are two brothers. Even the I,O. of the case P.W.-9 Sudama Singh has admitted that he had arrested this accused after about three months of the occurrence, and had not collected any evidence against him after his arrest., which shows of perfunctory nature of investigation done in the case. The fact also remains that the other co-accused persons, viz., Sairul Sk. and Nafis Sk., who were also convicted and sentenced on the same allegation, in different trials, have since been acquitted by this Court by unreported Judgment dated 7th of March, 2018, passed in Cr. App. (DB) No.674 of 2011 and Cr. App. (DB) No.676 of 2011, filed by them, holding that the eyewitnesses to the occurrence were only the chance witnesses and their evidences did not inspire confidence at all. The other witnesses are only the hearsay witnesses in the case. 16. App. (DB) No.674 of 2011 and Cr. App. (DB) No.676 of 2011, filed by them, holding that the eyewitnesses to the occurrence were only the chance witnesses and their evidences did not inspire confidence at all. The other witnesses are only the hearsay witnesses in the case. 16. We are of the considered view that even though the witnesses have supported the prosecution case, but the prosecution has failed to bring home the charge against the accused appellant beyond all reasonable doubts, and in the facts of the case, the appellant is entitled to be given the same benefits as have been allowed by this Court to the other co-accused persons. As such, the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. 17. For the foregoing reasons, the impugned Judgment of conviction dated 27.07.2011 and Order of sentence dated 28.07.2011, passed by the learned Sessions Judge, Pakur, in S.C. No. 62 of 2008, whereby, the appellant has been found guilty and convicted for the offence under Sections 302 / 34 of the Indian Penal Code, are hereby, set aside. The appellant Naji Sk., is given the benefits of doubt and he is acquitted of the charge. The appellant is in custody, undergoing the sentence. Let him be released and set at liberty forthwith, if his detention is not required in any other case. 18. Before parting with this Judgment, we must record that we have been given able assistance by the learned amicus curie, M/s. Rita Kumari. We direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned amicus curie. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, for the needful. 19. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.