The State Of Bihar (Now Jharkhand) vs Reyaz Ahmad Son Of Nayaz Ahmad
2023 Latest Caselaw 166 Jhar

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            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       Govt. Appeal (DB) No.02 of 1995 (R)
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(Against the Judgment and order of acquittal dated 8th August, 1994 passed by the 6th Additional Sessions Judge, Dhanbad in Sessions Trial No.140/1987)

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The State of Bihar (now Jharkhand) ..... Prosecution/Appellant

Versus

1. Reyaz Ahmad son of Nayaz Ahmad

2. Tulshi Pd. Singh son of Kisto Prasad Singh

3. Md. Mustaq Ahmad son of Md. Rafik Khan

4. Ishtaqur Khan son of Md. Rafik Khan

5. Naim Alam son of Salim Khan

6. Imtaz Khan son of Uzar Ahmad All residents of New Matkhuria Coloney, Naya Bazar, P.S. Bankmore, District Dhanbad ..... Accused Persons/Respondents PRESENT HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND .....

       For the Appellant        : Mr. Satish Prasad, A.P.P.
       For the Respondents      : None
                                  .....

09/Dated 10th January, 2023

Per Sujit Narayan Prasad, J.:-

The matter has been heard at length with the consent of learned

Addl. Public Prosecutor and the same is being disposed of. However,

none represented the respondents.

2. The instant appeal preferred by the State-appellant is against the

judgment of acquittal dated 08.08.1994 passed in Sessions Trial

No.140 of 1987 by the 6th Additional Sessions Judge, Dhanbad.

3. This Court before scrutinizing the legality and propriety of the

impugned judgment of acquittal, deems it fit and proper to refer the

prosecution story in brief as per the statement made by the informant

in the fardbeyan, wherein, it has been reported that on 22.05.1985 at

10:00 a.m., the informant along with his son Md. Anjar and his

companion Md. Nasiruddin, were going to bring medicine for his

ailing daughter. They were passing through Kawaripatti Mohalla.

When they reached in the said Mohalla near the book shop of Sri

Jauhar, the family members of Md. Hafiz and his men all of a sudden

fell upon them. Among them, the informant could identify Md. Tarique

@ Romi, Hanif both sons and brother respectively of Md. Hafiz,

Sahabuddin @ Sahab, Bhagna of Md. Hafiz, Naim Alam son-in-law of

Md. Hafiz, Mustaque, Intiyaz Khan, Istier Khan, Tulsi Pd. Singh,

Laxman Chourasia, Md. Hasim, Md. Reyaz, Asraf and Md. Mustque.

It has been alleged that all the accused persons all of a sudden

caught hold of Md. Anjar and accused Tarique @ Romi pressed the

neck of Md. Anjar. Some of the assailants got upon the chest of Md.

Anjar and started jumping upon his chest. The informant and Md.

Nasiruddin after seeing the seriousness of the situation had run away to

hide themselves. At the time of assault, the assailants were saying that

this was the person, who had shot at Md. Hafiz, Ward Commissioner,

by a pistol and identified the Md. Anjar to be the assailant.

It has been stated that two hours thereafter, the informant could

understand clearly the situation and started searching of his son going

to the Kawaripatti. Then, he learnt that the aforesaid assailants had

committed murder of Md. Anjar by pressing the neck and jumping

over his chest and the dead body was taken away by the Police to

Sadar Hospital. The informant also came to know when the Police

lifted the dead body, Md. Anjar had breathed his last before reaching

to the Hospital. When the informant reached to the Sadar Hospital, the

Police had already sent the dead body for post mortem.

It has been alleged that another son of the informant, namely,

Asgar was murdered by one Samim, the nephew of Md. Hafiz with the

help of some associates and as such, there was old enmity. The

assailants had suspected that the brother of Asgarh might take revenge

and therefore, were in a look out to kill Md. Anjar, brother of Md.

Asgarh. The informant thereafter had alleged that he learnt that

someone had shot at Md. Hafiz and when he was taken to Hospital, he

saw the informant, his son and companion and called his men to

assault. Therefore, the informant claimed that his son was killed by

Tarique @ Romi and others as named above at the instigation of Md.

Hafiz.

The aforesaid statement has subsequently been registered as First

Information Report before the Dhanbad Police Station being Dhanbad

P.S. Case No.243/85.

The matter was investigated and charge-sheet for commission of

offence under Sections 147, 149 and 302 of the Indian Penal Code was

submitted against the accused persons, namely, Md. Tarique @ Romi,

Reyaz Ahmed, Md. Masruf, Tulsi Prasad Singh, Laxman Pd.

Chourasia, Md. Hanif, Md. Mustaque, Md. Istier Khan, Md. Hafiz,

Naim Alam, Imteaz Khan, Md. Hasim and Shabuddin @ Sahab. The

case was committed to the Court of Session. The accused persons have

denied all the charges and pleaded not guilty. The trial Court had

framed against the accused persons except accused Tarique @ Romi

and Sahabuddin, who died before framing of charge as also Md.

Hasim, who did not turn up and his case had been split for separate

trial.

The trial Court has proceeded and on the basis of the testimony

of witnesses (four in number) and exhibits, i.e., FIR, Post mortem

report, had found that the prosecution failed to prove the charge

against the appellants beyond all reasonable doubts and as such, found

the appellants not guilty of the charge levelled against them and they

have been acquitted and discharged from the liabilities of their bail

bonds.

The State, being aggrieved with the aforesaid judgment, is before

this Court.

4. Mr. Satish Prasad, learned A.P.P. appearing for the State-

appellant, has argued the case at length and has taken the ground that

the impugned judgment is not fit to be sustainable since the learned

trial Court has failed to appreciate the deposition of the eye witness,

namely, P.W. 1 Md. Nasiruddin and the informant P.W. 2, Saiyed Md.

Akhter who in specific words have given the name of the appellants

while they were committing the murder.

It has been submitted that the learned trial Court has discarded

the testimony of the eye witnesses only on the ground that the dead

body was not identified. The testimony of informant P.W. 2 Saiyed

Md. Akhter has also been discarded by considering the conduct of the

informant to be unnatural, since informant did not rush to the Police

Station to report about the occurrence nor he take any step to save his

son nor raised alarm to attract the people to save his son.

It has been submitted that even accepting that the dead body has

not been identified and on the basis of that, the testimony of the eye

witnesses cannot be discarded since the learned trial Court has not

given any finding that there was no death of the deceased.

It has further been submitted that even the P.W. 2 (informant),

namely, Saiyed Md. Akhtar has corroborated the version of P.W. 1

Md. Nasiruddin but even though, the version of P.W. 2 has been

discarded merely on the ground that the dead body has not been

identified and considered the conduct of the family members and the

informant to be unnatural.

It has further been submitted that the injury shown in the post

mortem report also corroborates the commission of murder of the

deceased, since, it would be evident from the post mortem report that

the injury shown therein, has been caused due to pressing of neck and

chest of deceased.

5. Learned A.P.P. in the backdrop of the aforesaid ground has

submitted that the trial Court ought to have taken into consideration the

aforesaid aspect of the matter but having not done so and merely on the

ground that the dead body has not been identified and claimed, has

considered the conduct of the family members including the informant

to be unnatural, which cannot be said to be justified finding recorded

by the trial Court and therefore, the judgment impugned requires

interference and as such, the instant appeal.

6. We have heard the learned Add. Public Prosecutor.

7. The issue which has been raised on behalf of the State-appellant

regarding the testimony of P.W. 1 Md. Nasiruddin & P.W. 2 Saiyed

Md. Akhter where the commission of murder has been corroborated by

medical evidence and as such, this Court requires to consider the

testimony of P.W. 1 & P.W. 2 along with the post mortem report so as

to assess the legality and propriety of the finding recorded by the

learned trial Court.

8. P.W. 1, namely, Md. Nasiruddin in his testimony has stated that

the occurrence was taken place on 22.05.1985 at about 10:00 a.m. He,

along with the deceased, namely, Anjar and his father, namely, Saiyed

Md. Akhtar was going towards the medicine shop and when they

reached near the book shop of Jauhar and at that time, they have seen

the appellants, namely, Mudalehkis Khan, Hanif Khan, Nakum Alam,

Tulsi Pd. Singh, Md. Tarique @ Romi, Sahabuddin @ Sahab,

Mustaque Ahmed, Istier, Imteaz, Musaraf, Laxman Chaurasia and Md.

Hasim. The accused Hafiz Khan had instigated by identifying the

deceased, namely, Anjar that he was the younger brother of the

deceased Asgar and as such, let it be killed.

As such, the accused person, namely, Romi had started throttling

the neck of the said Anjar and some of the accused persons had tied his

hand and pressed his chest by sitting over there. Thereafter, Romi and

other accused persons had dragged the deceased towards the road side

and assaulted him. Among the aforesaid accused persons, one of the

accused persons was said that the deceased was the same person who

assaulted the Ward Commissioner, namely, Hafiz Khan. He has further

stated that the accused Romi had died. The accused Hasim has been

declared to be absconder and the accused Sahabuddin had also died.

He has stated that all the accused persons were standing in the dock

and he had identified all of them.

He has thoroughly been cross-examined and therein, it has been

stated by him that he was the Ward Commissioner for last two years.

It has been stated at paragraph-14 that he knew the accused

Hafiz Khan who had sustained the bullet injury and he had not gone to

see him, reason being that, he was not the Ward Commissioner during

the relevant time.

He has further stated that at the time when Anjar was assaulted,

he came to know from one of the accused about the bullet injury

having been sustained by the said Hafiz. He has stated that one of the

accused had stated that it was Anjar who had shot Hafiz but even after

knowing the aforesaid fact, he had not gone to see the Hafiz.

In paragraph-15 & 16, he has stated that he was accused in two

criminal cases. In one of the cases, the owner of the Jyoti Enterprises

was the petitioner but so far as the second case is concerned, he did not

know that who had lodged the case against him. He has also stated that

the father of the deceased Anjar is the maternal uncle and is present in

the Court.

He has stated at paragraph-19 of the cross-examination that he

has given statement before the Police that there was enmity in the

family of Asgar and Samim. Only the accused Romi was throttling the

neck of the deceased and he had not tried to rescue him. None had tried

to rescue him. He had not raised the alarm for rescuing the deceased.

No one has raised the alarm to rescue the deceased.

He has stated at paragraph-21 that none was over the chest of the

deceased. No blood was found on the place of occurrence. He has

stated that he had seen the sign of blood over the body of the deceased.

But he had not seen the blood oozing from the body of the deceased.

The blood was moving from the mouth and there was blood in the right

side of the rib. He has also stated that the blood was not oozing from

the rib. He had seen the sign of injury in the neck and head of the

deceased. He had not seen any sign of injury, save and except, the

aforesaid injury over the body of the deceased. He had seen the injury

over the head. He had seen the mark of finger over the neck of the

deceased. He has further stated that at that time, the other accused

persons were assaulting the deceased from lathi and stone. He has also

stated that he could not say that who were the persons armed with the

lathis. He also could not say whether the deceased had sustained injury

with lathi and stone.

He has stated at paragraph-25 that he has informed the Police

about the incident and at that time, the Anjar was lying there in

unconscious condition.

He has stated at paragraph-26 that he has not carried the

deceased to Hospital rather he was carried to Hospital by the Police.

He has also stated at paragraph-27 that he had not seen the

recovery of the stone by the Police.

At paragraph-28, he has denied the question that due to enmity in

between the informant and the family of the deceased, the instant case

has been instituted.

It has also been stated at paragraph-31 that it is not in his

memory that after taking over the dead body from the Police Station

whether any paper was prepared or not. He has further stated that he

had received the dead body by an order of the Officer, namely,

Upadhyay Ji. He has also stated that the dead body was carried to the

house of Saiyed Md. Akhter at about 6:00 p.m. in the evening and it is

not like that he had not made signature at the time of taking the body

from the Police Station.

Saiyed Md. Akhter was examined as P.W.2, the informant. He

has stated that he, his son (Anjar) and Nasiruddin were going to

medicine shop and at that time, he had seen the accused persons

including the appellants who started assaulting the Anjar and dragged

him towards the house of Hafiz Mian. The accused Tarique started

pressing the neck of Anjar. Accused Hanif and his brother started

pressing his chest. He has further stated that he cannot say that why his

son was assaulted. He has also stated that in order to save his life, he

had hidden himself and after one and a half hour, when he came out

and started searching his son, and did not find his son at the place of

occurrence. Then he came to know that his son was carried by the

Police for conducting post mortem. He had rushed to the Sadar

Hospital but had not seen his son there. He came to know about his son

that the dead body of his son was carried for the purpose of conducting

post mortem. He has stated that he has given his statement in the

Hospital which has been noted down by the Police and read over and

thereafter, he has put his signature upon the same. He has put his

signature on the FIR, which is marked as Exhibit/1.

He was cross-examined, wherein, at paragraph-5 he has stated

that in order to rescue he had not raised any alarm. He has stated that

apart from him about 100-50 persons had seen the occurrence.

He has also stated that amongst the lookers, none had come

forward to rescue the life of his son. He has also stated that the accused

persons had not tried to kill him. Subsequently, he himself said that the

accused persons had not identified him. He has stated that he has

managed to hide himself in a place where the accused persons could

not have been seen. He has also stated that the place where he hidden

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himself, there was a shop and the house and there was number of shops

just adjacent to the place of occurrence. He has also stated that

Nasiruddin, was his son-in-law and he is the maternal uncle.

He has stated that at paragraph-14 that the deceased Anjar has

done nothing at the place of occurrence, even in the hidden condition

he was watching the occurrence.

He has stated at paragraph-15 that he cannot say as to whether

there was a bullet shot on Hafiz at about 10:00 a.m. on 22.05.1985.

He has further stated at paragraph-16 that he has put his

signature in the fardbeyan in the Hospital itself. He has also stated that

how much time in the postmortem was taken, he cannot say. He has

also stated that Nasiruddin and Salahuddin, one of the relatives have

come with the dead body after post mortem. He has also stated that he

has stayed about half an hour in the Sadar Hospital.

It has further been stated at paragraph-19 & 20 that the dead

body was brought to the house which was covered with the bed-sheet

and the dead body was uncovered by him and the dead body was taken

to graveyard. He has also stated that none of the local people of the

concerned mohalla has gone to the graveyard. He has stated by

denying the suggestion that due to enmity, he has instituted the

aforesaid case against the accused persons including the appellants.

Kanhaiya Upadhyay was examined as P.W. 3 and during the

relevant time, he was posted as Officer-in-charge of the concerned

Police Station. He has identified the fardbeyan which was in the

signature of the Sub-inspector, namely, Abhilash Rai.

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He has stated at paragraph-3 that the dead body was sent by the

Sub-inspector for conducting post mortem. He has also stated that

there was murder of one, namely, Md. Anjar.

He has stated that inquest report was prepared by Abhilash Rai

which has been marked as Exhibit/4. He has also stated that he is the

person who has conducted investigation of the offence. He has

identified the place of occurrence as per the information furnished to

him by the informant.

It has been stated by him at paragraph-9 that he has not visited

the Patliputra Nursing Home prior to visiting the place of occurrence.

He was knowing about the bullet injury sustained by Hafiz Khan and

for that the case was also instituted.

He has stated at paragraph-11 that he has not recorded in the case

diary about furnishing the inquest report. He has stated that he has

brought the dead body but subsequently, he himself said that the dead

body was brought by his son but the same was not recorded in the case

diary. He has also stated that the dead body was handed over to the

petitioner in the Police Station but was not recorded in the case diary.

He has stated at paragraph-12 that there was enmity in between

the Babla, Asgar, Nasaruddin etc. and to that effect the record is

available in the Police Station.

He has stated at paragraph-14 that he had not lifted the blood

from the place of occurrence. He has stated that when he was rushed to

the place of occurrence, the deceased was not dead.

His statement was also recorded on recall of his examination by

the prosecution as would appear from the deposition to that effect

made at paragraph-16 thereof, wherein, it has been stated by him that

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after conducting the post mortem, the dead body was handed over to

the relatives of the deceased but there was no entry made for the same

in the case diary.

In paragraph-18, he has stated that he has not recorded the

statement of Raghubir Pandey.

In paragraph-19, it has been stated that he has not made any

entry in the case diary for whom, he came to know about the name of

the deceased.

He has stated at paragraph-20 that he came to know about the

name of the deceased prior to the receipt of the post mortem report. He

has also stated that he had not prepared the inquest report.

Dr. D.K. Dhiraj was examined as P.W. 4 who has conducted the

post mortem of the dead body of the deceased and has found altogether

10 injuries which were found to by him as ante mortem in nature, i.e.,

(i) Black eye lids of both eyes with ecchymosis underneath.

There was a lacerated wound 3/4'' x 1/4'' x the skin deep

over upper outer right eye lid.

(ii) Abrasion 2'' x 2'' on right chick surrounded by smaller

abrasions upto 1'' x 1/6''.

(iii) Three abrasions over left side of the face 2'' x 1/2'', 1'' x

1/4'' and 1/2'' x 1/4''.

(iv) Abrasions over right side of forehead in an area of 3'' x

2''.

(v) Abrasion 1 ½ '' x 3/4'' over left side and tip of the nose.

(vi) Multiple abrasions of various sizes 1/3'' to 3'' x 1/6'' to

1/2 '' on right side of the whole neck.

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(vii) Multiple abrasions 1/2'' to 2" x 1/4'' to 1'' on left side of

upper chest in an area of 4'' x 4''.

(viii) Multiple abrasion less than 1'' x 1'' in an area of 6'' x 2

1/2'' on the back of right forearm and elbow.

(ix) Abrasion 1 ½ '' x 1'' over back of left elbow.

(x) Abrasion 1/2'' x 1/4'' over outer aspect of the right big

toe.

The doctor has opined the cause of death by asphyxia due to air

way occlusion by external agency operative from the front of the neck.

The time of death was shown to be 6 plus minus 3 hours. Nature of

death is homicidal.

It has been stated at paragraph-9 that after post mortem, he has

handed over the dead body to the Constable no.83, namely, Raghubir

Pandey.

It is thus, evident from the testimony of P.W. 1 and P.W. 2,

Saiyed Md. Akhter happens to be the informant that the narration

about commission of offence has been furnished by the informant as

also by the P.W. 1- Nasuriddin.

It has been stated by them that the accused persons including the

appellants had caught hold the deceased and started assaulting by

pressing the neck and chest. It has also been stated by them that they

had hidden in a place in order to rescue themselves and from there he

had seen the occurrence. But subsequently, it has been stated by them

that the persons who had inflicted the injury, they had not seen.

9. The trial Court, on the basis of the deposition and on its

consideration, has given finding after taking into consideration the

testimony of P.W. 1-Nasiruddin & P.W. 2 Saiyed Md. Akhter to the

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effect that these witnesses had not seen the occurrence as made out in

the FIR, as would appear from the finding recorded to that effect at

paragraph-6 to the impugned judgment.

The learned trial Court has considered the deposition of P.W. 3,

namely, Kanhaiya Upadhayay, Investigating Officer who has proved

the FIR, which has been marked as Exhibit/2.

It has been stated by him that Abhilash Rai, Sub-inspector had

already sent the dead body for post mortem.

It has also been discussed that he sent the fardbeyan to the

Officer-in-charge, Dhanbad for registering the case. As such, the

learned trial Court had reached to the conclusion that the FIR was

recorded at Sadar Hospital, Dhanbad, when the dead body of Anjar

was not before the informant.

The Investigating Officer has proved the inquest report as

Exhibit/4 but does not mention the name of the deceased but states that

it was the dead body of an unknown Muslim male.

It has also been discussed at paragraph-7 of the impugned

judgment, wherein, it has been stated by the Investigating Officer that

the place of occurrence where the deceased was killed is a katcha road

of Kawaripatti Mohalla.

The learned trial Court has also considered the statement made

by the P.W. 3, the Investigating Officer that there was book shop of

Jauhar @ Hoha Kahn besides the pitch road running from north to

south. It was told to him that the accused persons had caught the

deceased near the shop of Jauhar on pitch road.

The testimony of P.W. 3, the Investigating Officer as has been

made at paragraph-5 to the effect that on the aforesaid katcha road of

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Kawaripatti Mohalla, he found the body of Md. Anjar taking last

breath and he was told that a crowd assaulted Anjar Mian. He has

stated in his cross-examination at paragraph-9 that he had reached at

the place of occurrence soon after the occurrence and again went there

with the informant at 2:00 p.m. He also states that he had first reached

to Bhuli More on receiving the information that bomb was blasted

there. He has clarified that in the case diary, he has not narrated that he

has gone to the place of occurrence but had gone to Bhuli More.

The trial Court, on the basis of the aforesaid statement has come

to conclusion that the testimony of P.W. 3 clarifies that he has no

information about the occurrence before he went to the place of

occurrence.

The trial Court has also considered the statement made by the

Investigating Officer at paragraph-14, wherein, it has been stated by

him that he has not recorded in the case diary that the persons who was

taking last breath was alive and that, it was Md. Anjar but he still

claims that it was the body of Md. Anjar who was lying unconscious.

The trial Court, therefore, has considered the testimony of

Investigating Officer that he has not conducted the investigation to

gather evidence to ascertain that the injury upon the person who was

taking last breathe at the place of occurrence was actually Md. Anjar.

The learned trial Court has also considered the statement made

by him which was made on recall by the prosecution that the post

mortem report of the deceased was received by him on 22.05.1985 at

10:00 p.m. and then he handed over the dead body to Raghubir

Pandey, who took the dead body to Bank More P.S. and from there the

relatives of the deceased were given the dead body.

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The Investigating Officer has stated that he has not recorded in

the case diary that the dead body was given to Raghubir Pandey and

then to the relatives of the deceased at P.S. Bank More.

The learned trial Court, therefore, reaches to the conclusion that

the Investigating Officer has never tried to identify the dead body from

the witnesses and as such, considers his evidence as not a substantive

piece of evidence to clarify that the dead body involved in the case was

actually that of Md. Anjar.

The trial Court has considered the deposition of the Doctor P.W.-

4, wherein, it has been stated by him that the post mortem was

conducted on 22.05.1985 at 4:00 p.m. on the dead body of an unknown

Muslim male aged about 25 to 30 years and the dead body was

identified by Constable Raghubir Pandey. But the said Raghubir

Pandey has not produced to give his evidence and as such, the identity

of the dead body has not been established.

The consideration has also been made by the trial Court about

the testimony of the Doctor P.W. 4 so far as it relates to sign of injuries

which were found 10 in number on the dead body. In the opinion of the

Doctor P.W. 4, the deceased had died of asphyxia due to air way

occlusation by external agencies operative on the front of the neck.

However, in the cross-examination, it has been deposed by him that the

identity of the deceased cannot be ascertained from his report and held

post mortem on unclaimed body and there was none to tell the name of

the deceased.

10. The question as has been raised by the learned counsel for the

State-appellant that the testimony of P.W. 2 Saiyed Md. Akhtar and

P.W. 1 Md. Nasuriddin should not have been discarded by the learned

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trial Court since the occurrence having been seen by the eye witnesses,

who in order to rescue their life have hidden themselves in a safe place

and from there they have seen the occurrence.

11. The question herein is that even accepting that the death is there

but death of whom and by whom is required to be considered before

convicting the person for the commission of a crime.

The trial Court, on consideration of that aspect of the matter, has

taken into consideration the conduct of the informant and the family

members who, however, subsequent to commission of post mortem

have given entirely different picture about receiving of the dead body

to his house but as would appear from the testimony of the

Investigating Officer and the Doctor who has given entirely different

picture and the Doctor, in his deposition has stated in clear words that

the post mortem was conducted of an unidentified body.

12. The question further would be that when the informant has seen

the occurrence and after 1 ½ hour when he came out, he has not found

the dead body of the deceased, then what would be the normal

behaviour of the relative more particularly herein the informant being

the father of deceased.

The trial Court has considered that aspect of the matter and while

considering the same, the trial Court has reached to the conclusion that

not claiming the dead body or even not identifying the dead body at the

time of post mortem or even the testimony of P.W. 4, the Doctor has

been considered to be unnatural conduct of the informant and the other

family members.

13. The said consideration given by the learned trial Court,

according to our considered view, cannot be said to be having no

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infirmity, reason being that if the kith and kin of the family members

are being murdered in an open day, herein at 10:00 a.m. in the morning

and even accepting that the father, namely, Saiyed Md. Akhter, P.W. 2

and P.W. 1 Md. Nasiruddin who happens to be the close relative of the

deceased has not tried to save the life of the deceased by making no

alarm to the local people while it has come in the deposition that the

area where offence took place was thickly populated and has also been

stated that about 150 peoples had gathered at the place of occurrence.

14. It is also very surprising and not acceptable so far as the

prosecution story is concerned that in a commission of murder, none of

the independent witness has been examined by the Investigating

Agency.

The trial Court has also considered the conduct of P.W. 1 Md.

Nasiruddin and P.W. 2 Saiyed Md. Akhter who themselves had

deposed that they did not accompany with the dead body and as such,

the said conduct has also been considered to be unnatural.

It is evident from the testimony of Investigating Officer P.W. 3

that whatever inquest report was prepared, the same has not been

entered in the case diary and for whom the inquest report was prepared

and there is no reference of the name of the deceased.

It is the Investigating Officer P.W. 3 who has deposed in his

testimony that only after conducting the post mortem, he came to know

about the occurrence but he did not know the name of the deceased.

15. This Court, after having discussed the testimony of P.W. 1 and

P.W. 2, the close relative and the father respectively and the

Investigating Officer, P.W. 3 and the Doctor P.W. 4, have reached to

the conclusion that the trial Court has considered and appreciated the

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testimony and while doing so, the trial Court has considered the

foremost principle to take the liberty of a person by passing the

judgment of conviction.

The trial Court, therefore, has considered the issue as to whether

the prosecution has been able to prove the charges beyond all shadow

of doubt and that is the foremost parameter to pass the judgment of

conviction.

16. At this juncture, it is pertinent to mention here that there is no

straight jacket formula on the basis of which the guilt of the accused is

said to be proved beyond reasonable doubt. Moreover, there is no way

to determine objectively, the reasonability of the doubt that the court

might have. So it depends solely on the court to say whether he is

convinced by the arguments of the prosecution or that there still

remains a degree of reasonable doubt so as to impart the judgment in

favour of the defense.

This follows from the cardinal principle that the accused is

presumed to be innocent unless proved to be guilty by the prosecution

and the accused is entitled to the benefit of every reasonable doubt. In

criminal cases, the guilt should be proved beyond any reasonable doubt

that a reasonable man with ordinary prudence can have. There should

be no doubt whether the accused is guilty or not. If there is slightest

doubt, no matter how small it is, the benefit will go the accused, in this

regard reference may be made to the judgment rendered by the

Hon'ble Apex Court in the case of Himachal Pradesh Administration

vs. Shri Om Prakash reported in (1972) 1 SCC 249, wherein at

paragraph 7, it has been held which reads as under :

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"7. While it is not the function of this Court to determine who other than the person who has been charged with the murder had committed it, the line which the defence adopted was to establish that the witnesses referred to above had an interest in implicating the accused or at any rate to create uncertainty and doubt sufficient to give the benefit to the accused. It is not beyond the ken of experienced able and astute lawyers to raise doubts and uncertainties in respect of the prosecution evidence either during trial by cross-examination or by the marshalling of that evidence in the manner in which the emphasis is placed thereon. But what has to be borne in mind is that the penumbra of uncertainty in the evidence before a court is generally due to the nature and quality of that evidence. It may be the witnesses as are lying or where they are honest and truthful, they are not certain. It is therefore, difficult to expect a scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion. Because of these difficulties corroboration is sought wherever possible and the maxim that the accused should be given the benefit of doubt becomes pivotal in the prosecution of offenders which in other words means that the prosecution must prove its case against an accused beyond reasonable doubt by a sufficiency of credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt -- the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy -- though unwittingly it may be

-- or is afraid of the logical consequences, if that benefit was not given. Or as one great Judge said it is "not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism". It does not mean that the evidence

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must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether. It is for this reason the phrase has been criticised. Lord Goddard, C.J., in Rox v. Kritz, [1950 (1) KB 82 at 90] said that when in explaining to the juries what the prosecution has to establish a Judge begins to use the words "reasonable doubt" and to try to explain what is a reasonable doubt and what is not, he is much more likely to confuse the jury than if he tells them in plain language. "It is the duty of the prosecution to satisfy you of the prisoner's guilt". What in effect this approach amounts to is that the greatest possible care should be taken by the Court in convicting an accused who is presumed to be innocent till the contrary is clearly established which burden is always in the accusatory system, on the prosecution. The mere fact that there is only a remote possibility in favour of the accused is itself sufficient to establish the case beyond reasonable doubt. This then is the approach."

Likewise, in the case of Rang Bahadur Singh vs. State of U.P.

reported in (2000) 3 SCC 454, the Hon'ble Apex Court at paragraph 22

has held as under :

"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to

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conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

The trial Court on critical examination of testimony of informant

P.W. 2, the father of the deceased and P.W. 1, one of the close

relatives and after taking into consideration the deposition of the

Investigating Officer P.W. 3 and the Doctor P.W. 4, as per the

discussion made hereinabove has reached to the conclusion that the

prosecution had failed to prove the charge beyond all shadow of doubt.

17. This Court, therefore, is of the considered view that while

reaching to such conclusion, the learned trial Court has committed no

error.

18. The argument which has been advanced on behalf of the State

appellant that the testimony of P.W. 1 Md. Nasiruddin and P.W. 2

Saiyed Md. Akhter ought not to have been discarded but the question

is that when the P.W. 1 and P.W. 2 themselves have been in

contradictory picture and as such, has been brought on record by virtue

of testimony of P.W. 4, the Doctor that the father, P.W. 2 has not

claimed the dead body and the post mortem was conducted of an

unidentified body. The same has been considered to be unnatural

conduct of the father as also the other conducts, i.e., after coming out

from the hidden place after half an hour, there was no endeavour from

the father P.W. 2 and P.W. 1 to get it reported the incident to the

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concerned Police Station by disclosing the name of the deceased and

has taken no endeavour even to know the whereabouts of the deceased.

However, it is their own testimony, they have rushed to the Sadar

Hospital and the Hospital where the post mortem was conducted. But

the post mortem was conducted upon unknown person because none

was there to identify the dead body.

19. This Court has posed the pin pointed question upon the learned

A.P.P. that the prosecution has tried to made out a case of commission

of murder by attracting the ingredients available under Section 302 of

the I.P.C. and whether merely on the basis of the testimony of the

father and the close relative, i.e., P.W. 2 and P.W. 1 respectively and

being not corroborated by the Investigating Officer and the Doctor

who had conducted the post mortem, the conviction can be attracted

for commission of offence under Section 302 of the I.P.C.

20. Learned A.P.P. in all fairness has submitted that it cannot be.

21. He has explained the reason for establishing the conviction for

the commission of offence under Section 302, the entire chain is

required to be connected including the testimony of witnesses, herein,

the interested witnesses with the testimony of the Investigating Officer

and the Doctor who had conducted the post mortem.

22. This Court, therefore, is of the view that the ground upon which

the instant appeal has been preferred appears not to be sustainable,

accordingly, the same is hereby dismissed.

23. This Court, after having answered the aforesaid ground and after

going through the testimony of the witnesses and the finding recorded

by the trial Court is of the view that there is no error in the judgment of

acquittal as impugned.

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24. Accordingly, the instant appeal fails and is dismissed.

25. Let this order be communicated to the trial Court and the Lower

Court Records be returned back to the Court concerned forthwith,

along with the copy of this Judgment.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.) Rohit/-A.F.R.