Karia Khan @ Perwez Khan vs State Of Jharkhand
2023 Latest Caselaw 3662 Jhar

                                       1                   Cr. Appeal (DB) No. 799 of 2015




           IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 799 of 2015

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(Against the judgment of conviction dated 24.06.2015 and order of sentence dated 26.06.2015 passed by the learned Sessions Judge, Lohardaga in Sessions Trial No. 102 of 2012 arising out of Kisko P.S. Case No. 84 of 2011, corresponding to G.R. No. 635 of 2011)

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Karia Khan @ Perwez Khan, son of Khalil Khan, resident of village- Niche Hisri, P.O. and P.S. Kisko, Ditrict Lohardaga/Jharkhand.

                                                            ... ... Appellant
                                    Versus

      State of Jharkhand                                  ... ... Respondent

                            PRESENT
              HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                  HON'BLE MR. JUSTICE NAVNEET KUMAR
                                 .....
    For the Appellant    : Mr. Vishal Kumar Bijay, Advocate
    For the Respondent ` : Mr. Saket Kumar, A.P.P.
                                   .....
CAV on: 14/09/2023                      Pronounced on: 03/10/2023

Per Sujit Narayan Prasad, J.:

1. The instant appeal, under Sections 374 (2) of the Code of Criminal Procedure, has been preferred against the judgment of conviction dated 24.06.2015 and order of sentence dated 26.06.2015 passed by the learned Sessions Judge, Lohardaga in Sessions Trial No. 102 of 2012 arising out of Kisko P.S. Case No. 84 of 2011, corresponding to G.R. No. 635 of 2011, whereby and whereunder, the appellant has been convicted under Section 302/34 of IPC and sentenced to undergo rigorous imprisonment for life for the said offence along with fine of Rs.10,000/-, in default of payment of fine, he has been directed to further undergo imprisonment for three months. The appellant has also been convicted under Section 27 of Arms Act and sentenced to undergo rigorous imprisonment for three years along with fine of Rs.5,000/- and in default of payment of fine, he has been directed to further undergo simple imprisonment for one months.

2. The prosecution story in brief as per the allegation made in the FIR, reads as under:

On 9.12.2011, Tabrej Khan, the informant, received telephonic information at about 7:00 pm from his Fufi from Hisri village that Rushed Khan was shot near house by someone. The informant rushed his house and inquired from family members and came to know that the deceased left home in the evening to meet with his friend Mehboob Hazam. While he was returning on foot three persons riding on red motorcycle have committed his murder by firing in front of house one Mir Khujla. They have committed murder after returning from the house of one Jailu Khan and fled away toward village Hisri. The informant did not know who have committed murder of his brother as he was done to death by firing from close range on his mouth.

In the course of investigation, the name of the accused came to the fore, a confessional statement was recorded by the police and in lieu of the confessional statement, the weapon was recovered by the police, the charge sheet was submitted and he was put on trial.

Thereafter, the trial proceeded and the learned trial court after considering the materials available on record the testimonies of the witnesses, convicted the present appellant under Section 302/34 of IPC and under Section 27 of Arms Act.

Ground on behalf of the appellant:

3. (i) Learned counsel for the appellant has submitted that the judgment of conviction passed by the learned trial court is not sustainable in the eyes of law since the same is based upon the testimony of P.W.-1 and P.W.-2 said to be eye witnesses but if their testimonies will be considered, it would be evident that they cannot be said to be eye witnesses.

(ii) P.W.-1 and P.W.-2 disclosed in their testimonies that the appellant came to their resident and took tea which suggested that the P.W.-1 was very much knowing the appellant but even then the FIR

was lodged against unknown. Hence, the very reliability of the prosecution version is suspicious.

(iii) The same is the case with P.W.-2 who happens to be wife of the deceased who has disclosed that she has seen the commission of crime but if the testimony of P.W.-2 will be taken into consideration, more particularly cross-examination at para-11, it has been deposed that she came to know about the murder of her husband in course of investigation. But, in the examination-in-chief she had deposed that she had seen the accused Adil and Karia Khan fleeing away from the place of occurrence. In the cross examination at para-11 when the P.W.-2 deposed that she came to know about the involvement of Adil and Karia Kha, the appellant herein, in course of investigation. Then, she cannot be said to be eye witness and her testimony cannot be said to be trustworthy.

(iv) P.W.-7 who is the informant is also not an eye witness rather he came to know about the occurrence over telephone and when he reached at the place of occurrence then he found that his brother, the deceased, was killed. He has been informed by his mother, sister and the wife of the deceased. He further deposed that both the accused persons were hidden in a bush and when his brother reached near the bush, they attacked and assaulted and thereafter fled away.

(v) Learned counsel for the appellant submitted by referring to the impugned judgment that the trial court considered the testimony of P.W.-1 and P.W.-2 to be eye witnesses and has been considered to be in corroboration with the testimony of the investigating officer and based upon the same, the appellant has been convicted.'

In the aforesaid premise, it has been submitted that the impugned judgment suffers from patent illegality and hence, not sustainable in the eyes of law.

Argument on behalf of the State:

4. Mr. Saket Kumar, learned APP appearing for the respondent-State has submitted that the judgment of conviction does not suffer from any

infirmity since the same is based upon the testimony of the eye witnesses, i.e., P.W.-1 and P.W.-2 and corroborated by P.W.-7 and P.W.-9, investigating officer.

5. It has been submitted that the P.W.-1 and P.W.-2 have rightly been considered as eye witnesses since both have seen the appellant assaulting the deceased. The ground has been taken by defending the impugned judgment that the testimony of P.W.-1 and P.W.-2 have been corroborated by the investigating officer also.

6. Learned APP on the aforesaid premise has submitted by referring to the impugned judgment that the learned trial court has given thoughtful consideration on the testimony based upon the same, the judgment of conviction has been passed, hence, it cannot be said that the judgment of conviction suffers from irregularity.

7. We have heard the learned counsel for the parties, perused the finding recorded by the learned trial court in the impugned order as also the testimonies and other documents available in the LCR.

8. This Court before appreciating the argument advanced on behalf of the parties, deems it fit and proper to refer the testimony of the prosecution witnesses who are 10 in number.

(i) P.W.1 Tasima Khatoon, stated that the accused alongwith one Adil had come to her place and taken tea. It is further stated that they came out of the house and found the deceased Rushed on the way and inserted pistol into his mouth and shot him. She has stated that at the sound of the firing, she came out of the house and found that both the accused persons are fleeing away leaving the deceased at the spot. She also found that deceased Rushed had received gunshot injuries and blood was oozing out from his mouth, he died on the spot. It is further stated that she had informed the informant.

In her cross-examination, it is stated that deceased is her own brother and further disclosed that she came out of her house at the sound of the firing. It is stated in cross-examination that the place of

occurrence is situated at a distance from her house. It is further stated that the land of the accused is in jointness with them and no partition has taken place. She has also stated that the accused and his father have sold some land to one Ramju Khan and the said Ramju Khan had sold the land to the informant and his family members for which the accused were nourishing a grudge.

(ii) P.W.2 Mojiba Khatoon, wife of the deceased, has stated that at hulla, she came out of the house and went to the place of occurrence and found her husband dead and could see that her husband had received injuries near his right eye and blood was oozing out from his mouth. It is further stated that she could see the accused persons fleeing away from the place.

It is stated in cross-examination that accused is own cousin of the deceased.

(iii) P.W.3 Masina Khatoon, mother of the deceased, has stated that at the sound of the firing she came out of the house and found her son dead. It is stated that she could see the accused persons fleeing away from the place. She has further stated that the deceased had received the injuries in his mouth and the blood was oozing out and four teeth were broken. It is stated that the deceased died at the spot.

In her cross-examination, it is stated that accused is the son of step brother-in-law. In her further cross-examination, she has explained that the accused had not given the share in the ancestral land to them.

(iv) P.W.4 Dr. Sunil Minz is the Doctor who has conducted postmortem upon the deceased and found following external and internal injuries upon the body of the deceased.

External Injuries: -

i). Incised wound about 2 c.m. x 1 c.m. x ½ c.m. on right eyebrow.

ii). Incised wound about 2 c.m. x 1 c.m. x orbital cavity deep on upper lid, right eye born rupture.

iii). Incised wound about 4 c.m. x 3 c.m. x oral cavity deep on left upper lid,

iv). Wound of entry :-Left side of upper palate anteriory about 2 c.m. x 2 c.m.

v). Wound of exist 4 c.m. x 3 c.m. on outside and above outer canthes of left eye. margin is everted.

Internal Examination: -

i). Commuted fracture of maxilla on left side orbital bone and lower part of frontal bone of left side. Frontal lobe of brain lacerated. There was loosing of multiple teeth on left side of upper jaw. Track of injury was negotiable easily.

Thoracic Cavity :- Lungs pale, heart right chamber empty,

Abdominal Cavity :- Liver spleen, Kidney per all pale, stomach contains semi digested food particles.

External Injuries No. (i) to (iii) was caused by hard and sharp substance. Injury no. IV and V was caused by fire arm. All the above external and internal injuries were ante mortem in nature.

In their opinion death was due to shock and hemorrhage due to damage of vital organ of brain.

(v) P.W.5, Dr. Manki Krishna Mohan Sahi, is another member of the doctor's team and his signature on the report has been proved as Ext- 1/1.

(vi) P.W.6, Jaso Bibi, happens to be the sister of the deceased. She has stated that the accused persons had come to her place to search the deceased and after 8-10 minutes, she came out of the house at the sound of the firing and could see that the accused alongwith Sk. Adil are fleeing towards the field and found the deceased dead at the spot.

In her cross-examination, she had stated that the accused persons have murdered the deceased for land dispute.

(vii) P.W.7 Tabrej Khan, is the informant himself. He has stated regarding the facts of the case. It is stated that when he came to the place, the police had already arrived at the place of occurrence and at his request he could see the dead body and found that the deceased had received gunshot injuries and blood was oozing out from back portion of his head. He has proved his signature on fardbeyn as Ext-1/2.

(viii) P.W.8 Sahabuddin Khan, has stated that the accused persons had come to search of the deceased at his place and at the sound of the firing, when he came out of the house found the accused persons fleeing away from the place and further found his son dead. It is stated that blood was oozing out from his mouth and his teeth had broken.

(ix) P.W.9 Ghanshyam Yadav, is the investigating officer of the case. He has proved the formal F.I.R. as Ext-3, it is stated that after taking up charge of investigation the Inquest report was prepared by him and the confessional statement of the accused Karia Khan @ Perwez Khan was recorded. It is further stated that in lieu of the confessional statement one pistol alongwith cartridge was recovered from the cow dung heap kept at the place and for which a separate case numbered as 87/11 for the offences u/s Arms Act was registered, the forwarding report of the I.O has been proved at Ext-5.

(x) P.W.10 Emmanuel Murmu, has produced the Material Exhibits from the Kisko P.S. Case no. 87/11, the country made pistol has been marked Ext-I and the live cartridge as Ext-II.

9. This Court on consideration of the rival submissions is required to consider as to whether the P.W.-1 and P.W.- 2 can be said to be eye witnesses based upon which the judgment of conviction has been passed.

10. This Court, in order to assess the said issue is discussing the testimony of P.W.- 1 and P.W.- 2 so as to come to the conclusion as to whether these two witnesses are eye witnesses or not?

11. It is evident from the testimony of P.W.- 1 that it has been deposed by her that Adil and Karia Khan, the appellant herein, came to her house. Her mother, the wife of the deceased P.W.- 2 had offered tea and both the accused persons had taken tea. Both the accused persons went away from the house and at that time, the deceased Rushed, was coming to his house towards one basti but in the route, the accused persons have met with the deceased and asked the deceased to sit and pistol was inserted in his mouth and was fired. It has been deposed that after hearing hulla, the sound of pistol she came out of the house and saw that both the accused persons were fleeing away. The deceased had sustained bullet injury and the blood was coming out from his mouth. The deceased succumbed to injury.

In the cross-examination, it has been deposed by her that accused Adil and the appellant had gone from her house and after half an hour thereafter, she came out from the house. She had heard the sound of firing.

The deposition as under paragraph-12 of the cross read with paragraph-1 of the chief, there are vital contradictions since in paragraph-1 it has been stated by her that she had seen the commission of crime of inflicting bullet injury over the mouth of the deceased but at paragraph-12 of the cross, it has been deposed by her that when she came out after half an hour and had heard the sound of firing.

12. It appears that after giving bullet injury over the mouth of the deceased, they have fled away.

At paragraph-22, land dispute has been referred.

13. This Court, on the basis of the analysis of the testimony as under paragraph-1 and paragraph-12, is of the view that the P.W.- 1 cannot be said to be eye witness since she became inconsistent in the cross- examination and hence, whatever has been deposed by her in the examination-in-chief cannot be said to be trustworthy.

14. P.W.- 2 has also stated that after hearing noise after half an hour she reached to the place of occurrence and had seen that her husband had died. She has further deposed that at that time the accused Adil and Karia Khan were fleeing away.

She has been cross-examined and had deposed that when she had reached to the place of occurrence, about 50 people were present.

At para-11 it has been deposed by her that she came to know about the commission of crime by Adil and Karia Khan in course of investigation.

15. This Court on consideration of the testimony as recorded under paragraph-1 in chief wherein it has been stated that she had seen both the accused persons fleeing away from the place of occurrence but in paragraph-11 of the cross examination she had deposed that she came to know about the involvement of Adil and Karia Khan in the commission of crime in course of investigation.

16. The question is that when she came to know about the name of Adil and Karia Khan in course of investigation then how she had seen both the accused persons fleeing away from the place of occurrence as has been deposed in paragraph-1. Therefore, by taking into consideration the testimony of P.W.- 2 in entirety, we are of the view that the P.W.- 2 cannot be said to be an eye witness and not reliable witness at all.

17. P.W.- 3, P.W.- 4 and P.W.- 6 are hearsay witnesses.

18. P.W.- 7 is the informant who is the eldest brother of the deceased. he has deposed in examination-in-chief at para-1 that at the time of commission of murder of the deceased, he was at Hisri, another house situated therein. He was informed over mobile phone that his brother Rushed Khan has been killed. He came to the place of occurrence and has deposed that both the accused persons hiding themselves in the bush and immediately when his brother Rushed came, both the accused persons assaulted and fled away towards west of the field.

19. It is evident from going through the testimony of P.W.- 7 that he is not an eye witnesses rather based upon the information of the mother, sister P.W.- 1 and the P.W.- 2, the widow of the deceased, he has registered fard beyan.

20. The learned trial court has passed the judgment of conviction based upon the testimony of P.W.- 1 and P.W.- 2 considering themselves to be eye witnesses.

21. Since we have already come to the conclusion that P.W.- 1 and P.W.- 2 are not eye witnesses, hence, the finding so recorded by the learned trial court to that effect suffers from error.

22. Further, P.W.- 1 and P.W.- 2 cannot be said to eye witnesses who had seen the commission of crime having involvement of the appellant who admittedly was known to the P.W.- 1 and P.W.- 2 and even to P.W.- 7 since P.W.- 1 and P.W.- 2 both have deposed that Adil and Karia Khan, the appellant herein, had visited their house and had tea by the P.W.- 2.

23. P.W.- 1 and P.W.- 2 both have said in chief that they have witnessed the accused persons fleeing away from the place of occurrence and not only that, the P.W.- 1 has also stated that the accused persons have inserted pistol in the mouth of the deceased and fired.

P.W.- 1 and P.W.- 2, therefore, accepted that the appellant was known to them then, but the FIR is against unknown and therefore the whole prosecution case becomes doubtful. The reference of the name of the appellant is not there in the fard beyan having been recorded by the P.W.- 7, leading to the conclusion that the name of the appellants taken by the P.W.-1 and P.W.-2 are false and afterthought.

P.W.- 7 has also taken name of these two persons but when the fard beyan was recorded on 09.12.2011 then why it is against unknown?

24. This fact also throws out the credibility of the P.W.- 1 and P.W.- 2 as also P.W.- 7.

25. This Court after having discussed the aforesaid fact and coming to the impugned judgment wherefrom it is evident that the learned trial court has failed to appreciate these facts as discussed above.

26. The law is well-settled that while convicting a person, which snatches away the right to liberty as granted under Article 21 of the Constitution of India, in such circumstances, it is the bounded duty of the competent court of criminal jurisdiction to come to the conclusion of proving the charge beyond all reasonable doubt and it is only then the right to liberty of a person concerned can be snatched away. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Rang Bahadur Singh and Ors. vs. State of U.P., (2000) 3 SCC 454. Paragraph-22 of the said judgment reads 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 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."

Likewise, the Hon'ble Apex Court in the case of Krishnegowda & Ors. Vrs. State of Karnataka, reported in (2017) 13 SCC 98, has held at paragraph-26 as under:-

"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."

27. It is settled proposition of law that the pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Bhikam Saran Vrs. State of

U.P., reported in (1953) 2 SCC 560, wherein, at paragraph-16, it has been held as under:-

"16. It is significant to observe that the appellant led no evidence in defence but merely relied upon the evidence of the prosecution witnesses in order to establish his defence. He had not to affirmatively establish his defence in the manner in which the prosecution had to establish its case. If as the result of his cross-examination of the prosecution witnesses he could establish the probability of his defence it was enough for his purposes, because if such a probability was established by him it would really entitle him to the benefit of the doubt insofar as such probability would prevent the prosecution case being established beyond reasonable doubt.

Reference may also be made to the judgment rendered by the Hon'ble Apex Court in State of Haryana v. Bhagirath, (1999) 5 SCC 96, paragraph-7 of the said judgment reads as under:

"7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution". Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."

Likewise, the Hon'ble Apex Court in the case of Krishnegowda v. State of Karnataka (Supra) at paragraph-32 and 33 has held as under:-

"32. --- --- The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.

33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice.--- --''

28. This Court, based upon the aforesaid principle and taking into consideration the discussion made hereinabove, is of the view that the impugned judgment suffers from illegality.

29. Accordingly, the judgment of judgment of conviction dated 24.06.2015 and order of sentence dated 26.06.2015 passed by the learned Sessions Judge, Lohardaga in Sessions Trial No. 102 of 2012, is hereby, quashed and set aside.

30. In the result, the instant appeal stands allowed.

31. In consequence thereof, the appellant, named above, is acquitted and discharged from his criminal liability and directed to be released forthwith from judicial custody in connection with Sessions Trial No. 102 of 2012, if not required in any other case.

32. Let this order/judgment be communicated forthwith to the court concerned along with the Lower Court Records.

         I agree,                                  (Sujit Narayan Prasad, J.)


    (Navneet Kumar, J.)
                                                          (Navneet Kumar, J.)

Jharkhand High Court, Ranchi
Dated: 03/10/2023
Saurabh / A.F.R.