Jharkhand High Court
Against The Judgment And Order Of ... vs Md. Sayub Akhtar @ Md. Sayub on 2 May, 2022
Death Ref. No. 05 of 2018
[Against the judgment and order of conviction and sentence dated
25.09.2018 (sentence passed on 28.09.2018) by Sri. Shiv Pal Singh, learned
Additional Sessions Judge-II, Godda in S.T. No. 161/2011]
...........
The State of Jharkhand ... ... Appellant
Versus
Md. Sayub Akhtar @ Md. Sayub ... ... Respondent
With
Criminal Appeal (DB) No. 1188 of 2018
...........
Md. Sayub Akhtar @ Md Sayub ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
...........
For the Appellants : Mr. Purnendu Kr. Jha, Adv.
For the Respondents : Mr. Vineet Kr. Vashistha, A.P.P.
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE RAJESH KUMAR
...........
Per. R. Mukhopadhyay. J.: Heard Mr. Purnendu Kr. Jha, learned
counsel for the appellant and Mr. Vineet Kr. Vashistha, learned
A.P.P. for the State.
2. This appeal is directed against the
judgment and order of conviction and sentence dated
25.09.2018 (sentence passed on 28.09.2018) by Sri. Shiv Pal
Singh, learned Additional Sessions Judge-II, Godda in S.T. No.
161/2011, whereby and whereunder the appellant has been
convicted for the offences u/s 302, 201 and 376 of the I.P.C. and
has been sentenced to death for the offence u/s 302 of the I.P.C.,
R.I. for 10 years along with a fine of Rs. 10,000/- for the offence
u/s 201 of the I.P.C. and imprisonment for life till natural life
along with a fine of Rs. 1,00,000/- for the offence u/s 376 of the
I.P.C.
3. A fardbeyan was recorded of Navisha
Khatoon in which she has stated that she earns her livelihood by
farming and doing the job of a labour. Her husband had gone to
Gaziabad about five days back in search of work. She has two
daughters and a son. It has been alleged that on 12.02.2011 her
brother-in-law Md. Sayub (appellant) had come in the evening
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and had taken away her daughter Sabana Khatoon with him to
purchase meat at village Vishambharkita. They were accompanied
by the sister of Md. Sayub namely Sahara Khatoon. It has been
alleged that her daughter did not return in the night though her
brother-in-law and his sister had returned at about 09:00 P.M.
When Md. Sayub was confronted by her regarding the whereabouts
of her daughter he had disclosed that while he was making
payment for the meat she had left for her house. When her
daughter did not return she had gone to the house of Md. Sayub at
04:00 A.M. and asked him as to what they have done to her
daughter at which Md. Sayub offered to search for her
immediately. In the meantime, the news regarding the missing of
her daughter spread amongst the villagers. When at 04:00 P.M. the
informant along with other villagers had confronted the sister of
Md. Sayub she started crying and confessed that her brother had
taken Sabana Khatoon towards the wheat field and committed her
murder. She was also forbidden to disclose such occurrence to
anyone. When the villagers started searching the body of her
daughter was recovered from the wheat field of Abdul Razzaque.
Based on the aforesaid allegations Hanwara
P.S. Case No. 07/2011 was instituted for the offences u/s 302/201
of the I.P.C. against Md. Sayub. On conclusion of investigation
charge-sheet was submitted on 28.02.2011 for the offences u/s
302, 201 and 376 of the I.P.C. After cognizance was taken the case
was committed to the Court of Sessions on 24.08.2011, where it
was numbered as S.T. No. 161/2011. Charge was framed u/s 302,
201 and 376 of the I.P.C. and the contents of the charge was read
over and explained to the accused in Hindi to which he pleaded not
guilty and claimed to be tried.
4. In course of trial the prosecution has
examined as many as 12 witnesses in support of its case.
5. P.W.1 (Dr. Usha Singh) has deposed that on
14.02.2011 she was posted at Sadar Hospital, Godda. The
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postmortem report of Sabana Khatoon was prepared by Dr.
Narendra Kumar which bears his signature as well as the
signature of this witness which has been marked as Exhibit-1.
6. P.W.2 (Dr. D.K. Choudhary) had conducted
autopsy on the dead body of Sabana Khatoon along with
Dr. Narendra Kumar and Dr. Usha Singh and had found the
following antemortem injuries:
i) Inside wound 4" x 1" x up to the anterior
aspect of spine at the level of hyoid bone.
In the anterior neck side cutting whole
structure including tracie aerothagus and
vessels; only the posterior aspects of the neck
including survical spines were intact.
The injuries was caused by sharp
weapon and the nature was grievous. Cause of
death was shock and haemorrhage.
ii) Bruise: 1"x 1/2" over the left thorac.
iii) Abrasion of size 1" x 1/4" over right
hand.
iv) Abrasion of size 1½" x 1/6" over lower
part and the left leg.
This injuries were simple and caused by
hard and blunt substance.
On examination of the genitalia one tear
on 3 'O' Clock position of the size 1/2" x 1/4"
on the hamanal memarain with few blood
cloths.
An opinion was also given that possibility of
rape cannot be ruled out.
7. P.W.3 (Sahabuddin) has stated that he had
heard that Sabana had been murdered by Soyab Akhtar. He does
not know as to how the murder has been committed.
This witness was not cross-examined by the
defence as no lawyer appeared in spite of repeated calls.
8. P.W.4 (Md. Iqbal) did not support the
prosecution case and hence was declared hostile by the
prosecution.
9. P.W.5 (Navisha Khatoon) is the informant and
mother of the deceased. She has deposed that the incident is of 1½
years back in the evening when Sayub Akhtar had come to her
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house and offered her to go with him to Vishambharkita for
purchasing meat. She had sent her daughter with Sayub Akhtar
but when her daughter did not return till 09:00 P.M. she went to
the house of Sayub Akhtar who disclosed that after purchasing
meat he had sent back her daughter who had gone with his sister
since some delay occurred due to making payment of the meat.
She has stated that when her daughter did not return till 04:00
A.M. she had once again gone to the house of Sayub who assured
her that he will trace out her daughter by 05:00 A.M. At about
04:00 P.M. when Sahara Khatoon was confronted by her relative
and others she had disclosed that her brother had taken away
Sabnam towards the wheat field. When her brother returned back
alone she asked about the whereabouts of Sabnam at which he
ordered her to keep silent otherwise she will also be bodily harmed.
She has stated that when she went to the wheat field along with
Sahabuddin, Iqbal and others they had seen the dead body of her
daughter whose throat was found slit. She has deposed that the
accused Sayub is her cousin brother-in-law in relation.
In her cross-examination, she has stated that
she had not witnessed the occurrence.
10. P.W.6 (Maqbool) has not supported the
prosecution case and has been declared hostile by the prosecution.
11. P.W.7 (Md. Hadish) has deposed that when he
had gone to the place of occurrence he had heard that Md. Sayub
had committed the murder of Sabana Khatoon.
In his cross-examination, he has deposed that
whatever has been said by him is on the basis of hearsay.
12. P.W.8 (Md. Gauhar Ali) has deposed that on
13.02.2011, he came to know about the incident from the mother
of Sabnam. He has proved the inquest report which has been
marked as Exhibit-2. He has proved his signature in the fardbeyan
which has been marked as Exhibit-3.
In his cross-examination, he has stated that
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he had not disclosed to the Police that Sayub had threatened his
sister if the incident was disclosed to anyone. He has given his
evidence based on what has been disclosed to him by Navisha
Khatoon.
13. P.W.9 (Sahara Khatoon) is the sister of Sayub
Ansari. She has stated that her statement u/s 164 Cr.P.C. was
never recorded. She has also deposed that she does not have any
knowledge about the incident. This witness has been declared
hostile by the prosecution.
14. P.W.10 (Md. Aziz) has stated that the incident
is of 2011 when the murder of Sabana Khatoon had taken place in
the wheat field. Sayub Akhtar had murdered Sabana Khatoon by
sliting her throat. The incident is of 12.02.2011 and on 13.02.2011
he came to know that the daughter of Aziz is missing. When
Sahara Khatoon was admonished by others she had disclosed that
her brother had misbehaved with Sabana and committed her
murder. On the direction of Sahara Khatoon the dead body of
Sabana Khatoon was recovered from the wheat field. This witness
has proved his signature in the inquest report which has been
marked as Exhibit- 2/1.
In his cross-examination, he has stated that
he does not remember from whom he had heard the news.
15. P.W.11 (Rajendra Kumar Sinha) was posted as
a Judicial Magistrate 1st Class, in Godda Civil Court on
14.02.2011. He had recorded the 164 Cr.P.C. statement of Sahara
Khatoon. He has proved the 164 Cr.P.C. statement which is in his
handwriting and bears his signature as well as the thumb
impression of Sahara Khatoon and which has been marked as
Exhibit-4.
16. P.W.12 (Arun Kr. Pandey) is the Investigating
Officer of the case who has stated that on 13.02.2011 he was
posted as Officer-in-Charge of Hanwara P.S. and at about 07:30
P.M. he received an information that a murder has been committed
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at village Dumra. He entered the information in the station diary
and reached village Dumra. He had recorded the fardbeyan of
Navisha Khatoon. He thereafter had taken over investigation
himself. He has proved the fardbeyan which is in his handwriting
and which bears his signature as well as the thumb impression of
the informant and the signature of Gauhar as a witness and which
has been marked as Exhibit-3/1. He has also proved the formal
First Information Report which has been marked as Exhibit-5.
He had recorded the restatement of the
informant as well as the statements of Md. Iqbal, Md. Sababuddin,
Md. Aziz and Gauhar Ali. He had also prepared the inquest report
which is in his handwriting and bears his signature and which has
been marked as Exhibit-2/2.
He had inspected the place of occurrence
which is at village Dumra situated in the eastern side of a fallow
land in the wheat field of Abdul Razzaque. The body of Sabana
Khatoon was found in the middle of the field. He has stated that
the fallow land is situated in the middle of village Dumra and
village Vishambharkita. About 100 yards from the place of
occurrence in the northen side is a track which goes from Dumra
to Vishambharkita via the fallow land.
This witness had sent the body of Sabana
Khatoon for postmortem and had also recorded the statement of
Sahara Khatoon. The statement of Sahara Khatoon u/s 164
Cr.P.C. was also got recorded. He has stated that Sayub Akhtar
was arrested and his confessional statement was recorded. On
conclusion of investigation charge-sheet was submitted against
Sayub Akhtar for the offences u/s 302, 201 and 376 of the I.P.C.
In his cross-examination, he has stated that
Md. Iqbal in his statement had disclosed that on the disclosure
made by Sahara Khatoon the dead body of Sabana Khatoon was
recovered. The mother of the deceased had stated before him that
on 12.02.2011 Sayub Akhtar and her daughter along with Sahara
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Khatoon had gone to purchase meat to Vishambharkita but her
daughter did not return and on being questioned Sahara Khatoon
had disclosed the entire incident.
The witness Gauhar Ali in his statement
before him had stated that Navisha had told him that Sayub had
threatened his sister that if the incident is disclosed by her she will
face dire consequences.
He has further stated that Sahara Khatoon in
her statement before Police had disclosed that her brother had
taken Sabana Khatoon towards the field and after sometime he had
returned back alone. When she asked him about Sabana Khatoon
he had disclosed that she has been murdered and she was asked
to kept silent otherwise she will face dire consequences. She out of
fear had kept silent but when she was confronted by the villagers
she has disclosed about the entire incident.
According to this witness, none of the
witnesses had stated before him regarding commission of rape
upon the deceased.
17. The statement of the accused/appellant was
recorded u/s 313 Cr.P.C. in which he has denied his involvement
in the occurrence.
18. Mr. Purnendu Kr. Jha, learned counsel for the
appellant has submitted after taking us through the First
Information Report that the informant had never asked Sahara
Khatoon regarding the whereabouts of her daughter though as per
her version she had gone to the house of the appellant twice but
had questioned the appellant only. It has been submitted that
P.W.4, P.W.6 and P.W.9 have been declared hostile by the
prosecution and in fact P.W.9 is the witness on whose purported
disclosure the appellant has been implicated and she has not
supported the prosecution case. Drawing the attention of the Court
to the evidence of P.W.12 (Investigating Officer), learned counsel
has submitted that Md. Iqbal was one of the witnesses in whose
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presence Sahara Khatoon had confessed but on being examined as
P.W.4 (Md. Iqbal) he had turned hostile. Mr. Jha has submitted
that the evidence of the informant (P.W.5) suggests the presence of
Md. Sahabuddin, Md. Iqbal and Sahara Khatoon when the body of
Sabana Khatoon was discovered but none of the said witnesses
have supported the prosecution case. He has stated that the
recovery of the dead body was from an open place and not from
any isolated place not frequented by others and therefore the
recovery of the body on the pointing out by Sahara Khatoon is
doubtful, more so, when the key witnesses including Sahara
Khatoon have been declared hostile by the prosecution. So far as
the conviction recorded u/s 376 of the I.P.C. is concerned learned
counsel has submitted that the commission of rape upon Sabana
Khatoon appears to be a figment of imagination since none of the
witnesses have expressed any apprehension regarding rape and
even the medical report does not conclusively prove the allegation
of rape.
19. Mr. Vineet Kr. Vashistha, learned A.P.P. has
primarily relied upon the evidence of P.W.5 who, according to him,
has not wavered from her fardbeyan regarding the implication of
the appellant. According to Mr. Vashistha, though there are no eye-
witnesses to the occurrence but the circumstantial evidence clearly
indicates that it was the appellant who had committed the murder
of Sabana Khatoon.
20. We have considered the rival submissions and
have also perused the Lower Court Records.
21. The entire case of the prosecution rests upon
circumstantial evidence as admittedly there are no eye-witnesses to
the occurrence. As per the allegations, it was the appellant
accompanied by his sister Sahara Khatoon and the daughter of the
informant Sabana Khatoon who had gone to purchase meat but
the appellant and his sister returned but no trace could be found
of Sabana Khatoon. Repeated visits by the informant to the house
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of the appellant did not yield any result and as per the prosecution
case only when Sahara Khatoon was confronted by the informant
and others she blurted out the incident of murder committed by
the appellant, though Sahara Khatoon had also not witnessed the
murder. According to the case of the prosecution, the recovery of
the dead body was made from the wheat field as per the disclosure
of Sahara Khatoon (P.W.9).
As per P.W.5, when Sahara Khatoon had
disclosed the entire facts she had gone to the wheat field of
Razzaque along with Sahara Khatoon, Sahabuddin, Iqbal and
others. When P.W.10 met P.W.5 on hearing the news that Sabana
Khatoon is missing P.W.5 had disclosed to him as to how the facts
had come out from the mouth of Sahara Khatoon (P.W.9) when she
was confronted by P.W.3 and P.W.4. The evidence of P.W.5 and
P.W.10, therefore, reveals the name of Sahabuddin (P.W.3) and Md.
Iqbal (P.W.4) as the persons who had confronted Sahara Khatoon
and in whose presence the dead body was discovered but none of
the said witnesses have supported the case of the prosecution.
Mr. Vashistha, learned A.P.P. has relied upon
the 164 Cr.P.C. statement of Sahara Khatoon which has been
proved by P.W.11 though Mr. Jha, learned counsel for the
appellant has submitted that such statement was given under
duress which apprehension cannot be ruled out since Sahara
Khatoon was confronted, admonished and threatened by P.W.5
and others on 13.02.2011 and on the very next day i.e. 14.02.2011
her 164 Cr.P.C. statement was recorded. In her evidence as P.W.9,
she has not supported the prosecution case.
It is the consistent stand of P.W.5 that she
had asked the whereabouts of her daughter from the appellant on
12.02.2011 and 13.02.2011 but not once did she confront Sahara
Khatoon. Another pertinent feature of the case is the place from
where the dead body of Sabnam Khatoon was recovered. It was in
the wheat field of Adbul Razzaque which is near a track which goes
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from Dumra to Vishambharkita through a fallow land. The
description of the place of occurrence by P.W.12 (Investigating
Officer) indicates that it was not a lonely or isolated place but a
place which joins the two villages through a track besides the
wheat field. The incident is said to have taken place on 12.02.2011
in the evening and the dead body was recovered on 13.02.2011 in
the evening and a clear doubt is cast regarding the manner of
discovery of the dead body as disclosed by P.W.5.
The evidence of P.W.5 has, therefore, not been
corroborated by any of the witnesses so far as the disclosure made
by Sahara Khatoon is concerned implicating the appellant as P.W.3
and P.W.4 have not supported the prosecution case and so has
Sahara Khatoon who has been examined as P.W.5.
The only aspect which remains as per the
evidence of P.W.5 is of the deceased being last seen with the
appellant. The principles governing the last scene theory has been
delineated in the case of "Satpal versus State of Haryana" reported
in (2018) 6 SCC 610, and the relevant reads as follows:
"6. We have considered the respective
submissions and the evidence on record. There
is no eye witness to the occurrence but only
circumstances coupled with the fact of the
deceased having been last seen with the
appellant. Criminal jurisprudence and the
plethora of judicial precedents leave little room
for reconsideration of the basic principles for
invocation of the last seen theory as a facet
of circumstantial evidence. Succinctly stated,
it may be a weak kind of evidence by itself to
found conviction upon the same singularly.
But when it is coupled with other
circumstances such as the time when the
deceased was last seen with the accused, and
the recovery of the corpse being in very close
proximity of time, the accused owes an
explanation under Section 106 of the Evidence
Act with regard to the circumstances under
which death may have taken place. If the
accused offers no explanation, or furnishes a
wrong explanation, absconds, motive is
established, and there is corroborative
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evidence available inter alia in the form of
recovery or otherwise forming a chain of
circumstances leading to the only inference for
guilt of the accused, incompatible with any
possible hypothesis of innocence, conviction
can be based on the same. If there be any
doubt or break in the link of chain of
circumstances, the benefit of doubt must go to
the accused. Each case will therefore have to
be examined on its own facts for invocation of
the doctrine."
22. The deceased was last seen with the appellant
on 12.02.2011 in the evening. When he returned back with his
sister the appellant stayed at his home as would be evident from
the deposition of P.W.5. The appellant is said to have confessed but
such confession has not led to discovery of any incriminating
circumstances against the appellant. The evidence of the witnesses
do not disclose about commission of rape upon the victim and the
medical report is also ambiguous with respect to such act and
therefore the commission of rape upon the victim is ruled out. No
motive in such circumstances, has been established by the
prosecution. The proximity of the appellant being last seen with the
deceased and the recovery of the dead body apart from the fact that
the appellant had not absconded immediately after the incident
had occurred does point favourably to the conduct of the appellant
and therefore merely because the deceased was last seen in the
company of the appellant the same would not be by itself be
conclusive with respect to the complicity of the appellant.
23. The overall scenario of the evidence adduced
by the prosecution clearly depicts that the chain of circumstances
has not been completed and there being dearth of evidence to bring
home the guilt of the appellant he deserves to be acquitted from
the charges levelled against him.
24. Accordingly, this appeal is allowed and the
judgment and order of conviction and sentence dated 25.09.2018
(sentence passed on 28.09.2018) by Sri. Shiv Pal Singh, learned
Additional Sessions Judge-II, Godda in S.T. No. 161/2011, is
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hereby set aside.
25. Pending I.A., if any, stands disposed off.
26. The appellant who is in custody is directed to
be released forthwith if he is not wanted in any other case.
(Rongon Mukhopadhyay, J.)
I Agree
(Rajesh Kumar, J.)
(Rajesh Kumar, J.)
High Court of Jharkhand at Ranchi
Dated, the 2nd day of May, 2022.
Alok/NAFR
