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2019 DIGILAW 1533 (JHR)

Sabra Khatoon v. State of Jharkhand

2019-09-03

RATNAKER BHENGRA, S.CHANDRASHEKHAR

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JUDGMENT : S. Chandrashekhar, J. 1. Two accused persons, namely, Ajad Khan and Sabra Khatoon were sent up for trial. Both have been convicted for the murder of Md. Sahid Khan. 2. The appellant, namely, Sabra Khatoon has challenged the judgment of her conviction under section 302/34 I.P.C. and the order of sentence of R.I for life, both dated 12.10.2001 passed in S.T No. 790 of 1991. 3. By an order dated 04.01.2002 the appellant was granted bail by this Court. 4. During the trial, the prosecution has examined five witnesses; brother of the deceased, namely, Md. Hanif Khan has been examined as P.W 1 and wife of the deceased is P.W. 5. 5. The doctor who has conducted the post-mortem on the dead body has not been examined and the post-mortem report was not tendered in evidence. The Investigating Officer of the case has also not been examined during the trial. 6. Photographs of the deceased were marked as Ext. -X and X/A for identification. 7. The learned Sessions Judge has recorded a finding that there is no eye-witness to the actual occurrence. 8. The clothes of Sahid Khan were identified by his wife and his brother. 9. The following circumstances were taken against the appellant to hold her guilty for murder of Sahid Khan;(i) the appellant was seen in the company of Sahid Khan in the morning of 05.04.1989, (ii) she along with Sahid Khan have been found going towards Jaltanda Bazar on a red-coloured Bajaj motorcycle, and (iii) the accused persons were found absconding after the occurrence. 10. The defence has seriously challenged identification of the dead person, who according to the prosecution was Sahid Khan. 11. Mrs. Shilpi John, the learned Amicus has contended that; (i) the incriminating circumstances sought to be established against the appellant were not proved,(ii) the chain of circumstances is not complete, and (iii) in the absence of corpus delicti the prosecution must produce clinching evidence on death of Sahid Khan. 12. To fortify her contentions, the learned Amicus has relied on a decision in "Padala Veera Reddy V. State of Andhra Pradesh and Others" reported in 1989 supp(2) SCC 706. 13. The law on absence of corpus delicti is well-settled. In the case of "Ram Chandra Vs. State of U.P." reported in AIR 1957 SC 381 ", the supreme court has observed thus: "6. 13. The law on absence of corpus delicti is well-settled. In the case of "Ram Chandra Vs. State of U.P." reported in AIR 1957 SC 381 ", the supreme court has observed thus: "6. ....It is true that in law a conviction for an offence does not necessarily depend upon the corpus delicti being found. There may be reliable evidence, direct or circumstantial, of the commission of the murder though the corpus delicti are not traceable." 14. The law on the subject has recently been summarized by the Supreme Court in "Rishipal Vs. State of Uttarakhand" reported in (2013) 12 SCC 551 , thus: "14. In the absence of corpus delicti what the court looks for is clinching evidence that proves that the victim has been done to death. If the prosecution is successful in providing cogent and satisfactory proof of the victim having met a homicidal death, absence of corpus delicti will not by itself be fatal to a charge of murder. Failure of the prosecution to assemble such evidence will, however, result in failure of the most essential requirement in a case involving a charge of murder. That is precisely the position in the case at hand. There is no evidence either direct or circumstantial about Abdul Mabood having met a homicidal death. The charge of murder leveled against the appellant, therefore, rests on a rather tenuous ground of the two having been last seen together to which aspect we shall presently advert when we examine whether the two being last seen together is proved as a circumstance and can support a charge of murder. ......................................... 19. It is true that the tell-tale circumstances proved on the basis of the evidence on record give rise to a suspicion against the appellant but suspicion howsoever strong is not enough to justify conviction of the appellant for murder. The trial court has, in our opinion, proceeded more on the basis that the appellant may have murdered the deceased Abdul Mabood. In doing so the trial court overlooked the fact that there is a long distance between "may have" and "must have" which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and does not require any reiteration. In doing so the trial court overlooked the fact that there is a long distance between "may have" and "must have" which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and does not require any reiteration. The decision of this Court have on numerous occasions laid down the requirements that must be satisfied in cases resting on circumstantial evidence. The essence of the said requirement is that not only should the circumstances sought to be proved against the accused be established beyond a reasonable doubt but also that such circumstances form so compete a chain as leaves no option for the court except to hold that the accused is guilty of the offences with which he is charged. The disappearance of deceased Abdul Mabood in the present case is not explainable as sought to be argued before us by the prosecution only on the hypothesis that the appellant killed him near some canal in a manner that is not known or that the appellant disposed of his body in a fashion about which the prosecution has no evidence except a wild guess that the body may have been dumped into a canal from which it was never recovered." 15. True, it is not a universal rule that in every case to establish the charge for murder a dead body must be produced but then the prosecution must produce clinching evidence on death of a person; circumstantial or direct. At the time when the dead body of a person was recovered, he was not identified by any person. The First Information Report has been lodged on the basis of the fardbeyan of Officer-in-Charge, Karra Police Station recorded on 07.04.1989 against unknown. After the investigation a 'Final Form' has been submitted by the police. Evidently, by that time the appellant was no where in the picture. However, on some information; no such information has been disclosed by the prosecution, a supplementary charge sheet was submitted arraying the appellant and Ajad Khan as accused. On identification of the person who has been found dead, the prosecution has relied on the photographs of Sahid Khan and his clothes which were identified by the witnesses. However, on some information; no such information has been disclosed by the prosecution, a supplementary charge sheet was submitted arraying the appellant and Ajad Khan as accused. On identification of the person who has been found dead, the prosecution has relied on the photographs of Sahid Khan and his clothes which were identified by the witnesses. In our opinion, on such evidence by no stretch of imagination the dead man can be identified as Sahid Khan, the brother of P.W. 1. 16. The witnesses - P.W. 1, P.W. 2 and P.W. 3, have deposed in the court that Sahid Khan and the appellant were found going on a motor-cycle in the morning of 05.04.1989, and the witness Najim Khan-P.W. 3 has said that he has seen the appellant and Sahid Khan on a red scooter heading towards Jaltanda Bazar. It is of relevance to record that the dead body of a person has been found on 07.04.1989. The time gap between the two incident is huge and when Sahid Khan has been done to death has not been established by the prosecution. 17. The prosecution witness, namely, Jumla Khatoon, who is the wife of the deceased has said that next morning when she had gone to the house of Ajad Khan to enquire about her husband his wife had informed her that he had taken Sahid Khan to Patna for work in a brick-kiln. A similar story has been narrated by P.W. 1, who in his examination-in-chief states that when his brother did not come back he started enquiring from Ajad Khan. And, this has happened about five months after his brother had gone with Ajad Khan for his employment. But, it is also the prosecution's case that in the morning of 05.04.1989 the appellant and Ajad Khan had gone to the house of the deceased and called him for some work and both of them have been found absconding after they were seen lastly in the company of the deceased. 18. The abscondence of an accused is normally not taken as an incriminating circumstance against him except in the cases based on circumstantial evidence. 18. The abscondence of an accused is normally not taken as an incriminating circumstance against him except in the cases based on circumstantial evidence. One of the circumstances relied upon by the learned Sessions Judge against the appellant is that soon after she was found in the company of the deceased she has absconded from her house, but then, as per the prosecution's own evidence the deceased had accompanied the appellant and co-accused Ajad Khan and gone for working at a brick-kiln. On such evidence, we are of the opinion that the prosecution has failed to establish that the appellant was absconding from her house due to fear of her implication in the case, lest it shall be an incriminating circumstance. We find that the circumstances sought to be established against the appellant have not been proved by the prosecution. The evidence on last-seen-together has also lost its sting in view of the time gap between when the appellant was found riding a motor-cycle with the deceased on 05.04.1989 and the dead body was found on 07.04.1989. During the investigation, the Investigating Officer has not seized the crime weapon or any other incriminating material which would establish death of Sahid Khan. The motive for the crime according to the prosecution was theft of oxen of Zunaid, however, Zunaid has not been examined as a witness during the trial. 19. In the aforesaid state of affairs, non-examination of the Investigating Officer has definitely handicapped the accused persons to elicit answers on the places of occurrence, death of Sahid Khan, his identification etc. 20. In the end, we find that the prosecution has failed to establish the charge under section 302/34 IPC against the appellant, namely, Sabra Khatoon and, accordingly, her conviction and sentence for the said offence passed in S.T. No. 790 of 1991 are set-aside. 21. The appellant is acquitted of the charges framed against her. 22. The appellant, who is on bail, stands discharged of the liability of the bail bonds furnished by her. 23. In the result, Cr. Appeal (DB) No. 478 of 2001 is allowed. 24. We appreciate the efforts of Mrs. Shilpi John, the learned Amicus who has prepared a paper-book of depositions, list of dates and short synopsis. 25. The Secretary, Jharkhand High Court Legal Services Authority, Ranchi shall reimburse the learned Amicus on submission of the bill(s) as per the notification dated 23.11.2017. 26. Appeal (DB) No. 478 of 2001 is allowed. 24. We appreciate the efforts of Mrs. Shilpi John, the learned Amicus who has prepared a paper-book of depositions, list of dates and short synopsis. 25. The Secretary, Jharkhand High Court Legal Services Authority, Ranchi shall reimburse the learned Amicus on submission of the bill(s) as per the notification dated 23.11.2017. 26. Let a copy of the judgment be transmitted to the court concerned through 'Fax'. 27. Let lower court records be transmitted to the court concerned, forthwith.