Jharkhand High Court
Md. Islam Son Of Samsuddin Mian vs The State Of Jharkhand on 7 May, 2024
Author: Ananda Sen
Bench: Ananda Sen
Criminal Appeal (D.B.) No. 646 of 2015
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[arising out of Judgment of Conviction dated
27th July, 2015 and Order of Sentence dated
28th July, 2015 passed by the District &
Additional Sessions Judge V, Giridih in
Sessions Trial No.79 of 2012]
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Md. Islam son of Samsuddin Mian, resident of Village
Dhobapat, PO PS Tisri, District Giridih.
... Appellant
-versus-
The State of Jharkhand ... Respondent
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For the Appellant : Mr. Bhola Nath Rajak, Advocate
For the Respondent : Mr. Abhay Kumar Tiwari, A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI SUBHASH CHAND, J.
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JUDGMENT
Per Ananda Sen, J. The appellant has preferred this appeal against the
Judgment of Conviction dated 27th July, 2015 and Order of Sentence dated
28th July, 2015 passed by the District & Additional Sessions Judge V, Giridih
in Sessions Trial No.79 of 2012, whereby the appellant has been held guilty
and convicted for the offence punishable under Sections 302 of the Indian
Penal Code and he has been sentenced to undergo rigorous imprisonment
for life and a fine of Rs.10,000/- and in default of payment of fine to undergo
further imprisonment for three months.
2. Learned counsel for the appellant submits that there are no
materials to convict this appellant in this case. He submits that none of the
witnesses have seen the occurrence and there are no eye witness to the
occurrence. He submits that the prosecution has also failed to establish the
motive of the appellant for committing murder of the deceased. He argues
that the motive which has been projected by the prosecution that the
deceased and his family members were pressurizing the appellant for Bidai
of their daughter cannot be accepted as a motive behind the occurrence,
inasmuch as no case of torture was ever lodged earlier as against the
appellant. He further submits that there are major contradictions amongst
the evidence of the prosecution witnesses. He further submits that on overall
assessment of the materials on record, it transpires that the prosecution has
miserably failed to prove the charges against the appellant beyond all
reasonable doubts.
3. Learned A.P.P. for the State submits that the Trial Court has
rightly convicted and sentenced the appellant finding the guilt of the
appellant to be proved beyond all reasonable doubts. He submits that the
P.W.7, who is the main witness in this case being the informant, has
narrated the manner of occurrence in a very descriptive manner. She has
stated that she was sleeping with the deceased in the same room when at
night the appellant entered the room and stabbed in the chest of the
deceased with the knife and when she tried to catch him along with P.W.1,
they were also injured. All the other witnesses, who were present in home,
i.e., the place of occurrence, have corroborated the prosecution case. He
submits that the prosecution has also proved the motive as almost all the
prosecution witnesses including the informant, her brother, her son and her
daughter have stated that the deceased used to tell the appellant to take his
family with him and due to this the appellant has killed the deceased. He
further submits that the investigating officer has deposed in detail about the
various aspects of investigation and materials collected by him, which led
him to file chargesheet in this case. From the evidence of the investigating
officer, no latches or lapses can be found which would go to benefit the
appellant. The medical evidence of the doctors also corroborate the
evidence of ocular witnesses inasmuch as the nature of injuries and the
cause of death as opined by the doctor matches with the evidence of ocular
witnesses. Thus, he submits that the impugned order of conviction and
sentence need no interference by this Court.
4. We have heard the learned counsel for the appellant and the
learned A.P.P. for the State and have also gone through the records and the
entire evidence.
5. Prosecution case is based on the fardbeyan of the informant
Mohibini Khatoon, recorded on 01.10.2011 at 09.45 a.m. She stated that at
about 02.00 a.m. at night, when all the family members of the informant were
sleeping. Her husband was sleeping in another room. She heard scream of
her husband "Bachao Bachao". On hearing such screaming she and her
brother woke up and when they reached the room of her husband, they saw
her son-in-law Md. Islam armed with knife in right hand coming out from the
room. They wanted to catch hold of him, but he stabbed both of them with
knife and fled away. He inflicted knife injury on the left side of the rib of the
informant and inflicted knife injury on the right side of waist of his brother.
Soon other members of the family also woke up. When they entered the
room, they saw the deceased panting due to injury in the left side of his
chest from where blood was oozing out. In no time he collapsed there.
Informant has further stated that that her son-in-law has committed murder
of her husband as they used to ask for Bidai of their daughter and earlier
also he had threatened to kill her husband.
6. On the basis of the fardbeyan, Tisri Police Station Case No.63
of 2011 was registered for offences under Sections 302/34 of the Indian
Penal Code. Police took up the investigation and on completion of the
investigation, filed chargesheet No.86 of 2011 on 31.10.2011 under Sections
302/324 of the Indian Penal Code. Cognizance of the offence was taken and
case was committed to the Court of Sessions. Charges with two heads
against the appellant were framed on 28.03.2012 for offences under
Sections 302 and 324 of the Indian Penal Code. Charges, so framed, were
read over and explained to the appellant, to which he pleaded not guilty and
claimed to be tried, thus the appellant was put on trial.
7. To bring home the charges, the prosecution examined
altogether 11 witnesses, namely, P.W.1 Samsul Ansari, P.W.2 Sartaj, P.W.3
Md. Siraz, P.W.4 Noor Mohammad, P.W.5 Zubaida Khatun, P.W. Basir
Ansari, P.W.7 Mohibini Khatun (informant of this case), P.W.8 Mobin Ansari,
P.W.9 S.I. Rasbihari Lal (investigating officer of the case), P.W.10 Dr. Pravin
Chandra and P.W.11 Dr. Dipak Kumar.
The prosecution also produced the following documentary
evidence, which were marked exhibits: -
Exhibit 1 Signature of Samsuddin Ansari on fardbeyan
Exhibit 2 Seizure List
Exhibit 3 Signature of Md. Siraz on inquest report
Exhibit 3/A Signature of Md. Noor on the inquest report
Exhibit 3/B Signature of Mobin Ansari on the seizure list
Exhibit 4 Fardbeyan
Exhibit 4/1 Endorsement on fardbeyan
Exhibit 5 Inquest Report
Exhibit 6 & Injury Slips
Exhibit 7 Formal First Information Report
Exhibit 8 & Injury Reports
Exhibit 9 Postmortem Report.
The prosecution has also produced a material object, i.e.,
seized dagger, which was marked as Material Exhibit 1.
The defence did not examine any witness in support of their
defence.
8. P.W.1 is Samsul Ansari, who is the brother of the informant. He
stated that he was at her sister's house on the date of occurrence. He stated
that at about 2 p.m. at night he heard sound of screaming of his sister and
brother-in-law. On hearing such scream, when he reached the room where
his brother-in-law was sleeping, he saw the appellant stabbing the deceased
in the right side of chest. When he tried to catch him, he stabbed him also in
the right side of waist and in his arm. He stated that the appellant also
stabbed the informant. They could not catch him. He stated that on raising
alarm, villagers assembled there. He stated that the deceased died there
itself. He stated that the police came in the morning. Police had recorded his
statement. Police had also recorded the statement of his sister. He proved
the fardbeyan of the informant, which was marked Exhibit 1. He stated that
the police had seized the knife. He has proved the seizure list, which was
marked as Exhibit 2. He stated that the appellant had committed the offence
as because the deceased used to ask him to take his daughter due to which
there always used to be a quarrel amongst them.
In cross examination, he stated that the police had recorded his
statement and he had told the police that on hearing scream when he
reached he saw that the appellant had stabbed the deceased on the right
side of his chest and after stabbing, he took out the knife. He stated that
when he tried to catch him, he also stabbed him on his back and on his arm.
He stated that his sister was sleeping in the room where occurrence took
place. He stated that the deceased used to tell his daughter to go from there,
but no complaint was ever made in this regard nor any panchayati was held.
He stated that he is unable to say as to who reached first on hearing sound
of scream, but when he reached, he saw that the appellant, deceased and
sister of this witness were there. He has named the family members present
in the house. He stated that when he was stabbed he was wearing clothes
and the police had seized the blood smeared clothes and had also prepared
seizure list. He stated that his sister was also stabbed and her blood stained
clothes were also seized by the police.
P.W.2 is Sartaj. He is the son of the deceased. He stated that
the occurrence took place on 30.09.2011 at 02.00 a.m. He was sleeping
along with his maternal uncle in a room. His parents were also sleeping
somewhere in a room where door was not shut. He stated that he heard
screaming of his sister "दौड़ो-दौड़ो इ ाम िमया हाथ म चाकू िलए ए ह" (Run and
run Islam Miya is holding a knife in his hand). By the time they could come
out, they saw that the deceased had stabbed his father (the deceased).
When he along with his maternal uncle tried to catch him, he also inflicted
injuries to his maternal uncle. He saw knife injury on the left side. He stated
that his sister was married to the appellant 14 years ago and he was not
taking his sister to his home and the deceased always wanted that the
appellant should take his wife to his home and due to this only the appellant
killed the deceased. He stated that he had narrated the above to the police
when they came in the morning. He identified the appellant who was present
in Court.
In cross examination, he stated that on the very next morning of the
occurrence, police had recorded his statement. He has stated that by the
time he ran and reached, appellant had stabbed the deceased. He stated
that when he came out he saw that the deceased was going out of the door.
He stated that he had seen the knife injury on the deceased and had not
seen the knife. He stated that there is no case with regard to the matrimonial
discord between appellant and his wife. At the time of occurrence and while
the appellant was fleeing, only he and his maternal uncle were there and
other villagers had not reached. He denied the suggestion that the appellant
has been falsely implicated. He stated that P.W.1 had suffered injury in his
presence.
P.W.3 is Mohd. Siraj. He is the another son of deceased. He
stated that the occurrence took place about 1 year 4 months ago. It was
02.00 a.m. in night. He was sleeping in the room. Meanwhile the deceased
started screaming "bachao-bachao". When he came out, he saw the
appellant coming out with a knife in his hand. Firstly, P.W.1 and the
informant tried to catch him, on which the appellant stabbed the P.W.1 and
the informant and fled. He also tried to catch him, but could not. His father
(deceased) died. Police came on the next day. Dead body was seized. He
has proved the seizure list, which was marked Exhibit 2. He stated that the
police had also recorded his statement. He identified the appellant in Court.
In cross examination, he stated that after hearing the sound
when he came out he saw P.W.1, the informant and his sister, who were all
at the main door of the house. By that time, appellant had fled. He stated
that the police had recorded his statement on 29th September, 2011. He
cannot say as to what was written in the inquest report. At the time when he
came out, he had seen the appellant had already crossed the main door and
he had seen him from back. It was dark at night. He stated that he had not
seen the appellant causing injuries to P.W.1 and the informant. He denied
the suggest that he is giving false statement.
P.W.4 is Noor Mohamad. He stated that the occurrence took
place 1 ½ years ago. It was 12 at night. He was at his home and on hearing
the scream when he went to the deceased's house, he saw that the
deceased had died. He had knife injury on left side of his chest. Informant
also was injured and their children also were injured. He heard that the
appellant has killed the deceased. He identified the appellant. He proved his
signature on the inquest report, which was marked as Exhibit 3/A.
Nothing substantial was extracted in his cross examination.
P.W.5 is Jubaida Khatoon. She stated that the appellant is her
husband. She stated that the occurrence took place about quarter to two
years ago. It was 02.00 in night. She was at her paternal home. Appellant
was also there. She stated that the deceased told the appellant to take her
from there, but he refused. Thereafter the appellant killed the deceased by
stabbing with knife. He thereafter fled from there. P.W.1 tried to catch him,
on which he also was injured. Appellant had also stabbed on the informant.
She identified the appellant present in Court.
In cross examination, she stated that she was married to the
appellant about 10 years ago. She stated that she still lives in her paternal
home. She stated that on the date of occurrence, they were three persons at
home, i.e., the deceased, she herself and the P.W.3. On the date of
occurrence she was sleeping in the room of the deceased. P.W.3 was also
sleeping there but was in another room. Appellant had come on that day at
02.00 a.m. in the night. She had seen the appellant. She stated that the
police had recorded her statement. She stated that she was not told by
P.W.1 rather she herself had seen the appellant causing injury to the
deceased. P.W.1 was also injured. She denied the suggestion that she is
falsely implicating the appellant.
P.W.6 is Basir Ansari. He stated that the occurrence took place
on 30.09.2011 and 01.10.2011. He was sleeping in his home when heard
sound of screaming from the house of the appellant. When he reached there
he saw that some persons including P.W. 1 are trying to catch the appellant.
In course of attempt to catch the appellant, P.W.1 also got injured and the
informant was also stabbed by the appellant. He had seen the deceased
was lying in the room in the eastern side. There was knife injury in the left
side of his chest and blood was oozing. Informant told that the appellant has
stabbed the deceased with knife and fled. Police had come on the next day.
He identified the appellant in Court.
In cross examination he stated that on hearing the scream, he
had not gone inside the house but had gone to the gate of the house. When
he reached there, he saw P.W.1, Safique, Rubaida and Md. Sartaj were
present. Some were inside the house and some were outside. He denied
the suggestion that he has given false evidence and no occurrence had
taken place.
P.W.7 is Mohibini Khatoon. She is the wife of the deceased and
informant of this case. She stated that the occurrence took place about two
years ago. It was 01.30 a.m. at night. She was sleeping in her room. Her
husband (deceased) was sleeping with her but were on different cots. She
saw that the appellant entered the room and assaulted the deceased with
knife. The deceased was struggling and screaming "bachao-bachao". She
went to him and caught hold of him and P.W.1 also reached there, on which
the appellant assaulted her with knife and also assaulted P.W.1 and
thereafter fled. The reason of the occurrence, is that the deceased used to
ask the appellant to take his wife and a month ago he had threatened the
deceased of dire consequences. She could not imagine that he would do like
this. Police had reached on the next day morning at about 08.00 - 09.00
a.m. Police had recorded her statement, which was read over and explained
to her and she had put her signature and P.W.1 had also put his signature.
She identified the appellant in Court.
In cross examination she has stated that she had seen the
appellant entering the room and stabbing knife in the chest of the deceased.
She stated that Jubaida and Rubaida are names of same lady. She stated
that soon after the appellant stabbed, she became unconscious and she
regained her consciousness after about an hour. She denied the suggestion
that she is giving false statement to implicate the appellant.
P.W.8 is Mobin Ansari. He has proved his signature over the
seizure list of the knife, which was marked Exhibit 3/B. He has identified the
appellant in Court.
P.W.9 is Ras Bihari Lal. He is the investigating officer of this
case. He stated that he had recorded the fardbeyan of the informant over
which she had put her thumb impression and P.W.1 had put his signature in
his presence. The fardbeyan was marked as Exhibit 4. He stated that he had
recorded the re-statement of the informant. He had prepared the inquest
report, which was marked as Exhibit 5. He had sent the dead body for
postmortem and had also sent the injured for treatment. The injury slips
were marked Exhibits 6 and 6/1. He stated that he had recorded the
statement of Md. Siraj and Md. Noor. He has given description and boundary
of the place of occurrence. He stated that he had arrested the appellant,
had recorded his confessional statement and had also seized the knife. The
seizure list was marked as Exhibit 2. He also proved the handwriting in
formal First Information Report, which was marked as Exhibit 7. He also
proved the endorsement made on the fardbeyan, which was marked as
Exhibit 4/1. He also received the injury report and postmortem report and
has also stated that he had submitted the chargesheet. He also identified the
appellant.
P.W.10 is Dr. Pravin Chandra. He had examined the injured
Samsul Ansari. He found the following injuries: -
(i) Lacerated wound 1" x ½" x skindeep on back
(ii) Abrasion on left arm.
He found the age of injury to be of within 24 hrs. and the nature
of injury to be simple sharp cut injury. The injury report was marked Exhibit
8.
He had also examined the informant Mohini Khatoon and had
found the following injuries: -
(i) Lacerated wound ½" x ½" skindeep on left arm
(ii) Age of injury was within 24 hrs.
(iii) Nature of injury was simple caused by sharp cut weapon.
The injury report was marked as Exhibit 8/1.
P.W.11 is Dr. Dipak Kumar. He had conducted the postmortem
examination on the dead body of the deceased. He found the following: -
Rigor mortis was present on all four limbs
Both eye and mouth was closed.
There was deep cut injury over left side of chest about 3
½" x 1 ½" with ruptured of sternum bone and there was
abrasion over right shoulder joint ½" ½".
On examination Viscera. Heart was ruptured and empty
only clot found in chamber of heart and left lungs
lacerated and congested.
Liver, spleen congested.
Stomach - there was digested food and 50 ml of water.
Urinary bladder was full.
Time of death : within 24 hrs. and cause of death - shock
due to haemorrhage.
He has observed that injury may be caused by dagger.
The postmortem was marked Exhibit 9.
9. After closure of the evidence, appellant was examined under
Section 313 of the Code of Criminal Procedure, wherein he denied the
charges and claimed to be innocent.
10. The Trial Court, after hearing the arguments of the parties and
after going through the evidence, by a Judgment of Conviction dated 27th
July, 2015 and Order of Sentence dated 28th July, 2015 passed in Sessions
Trial No.79 of 2012, has held the appellant guilty, convicted him and
sentenced him for the offence as detailed in paragraph 1 hereinbefore.
11. Challenging the aforesaid conviction and sentence, the
appellant has preferred this appeal.
12. We have gone through the evidence and the entire records.
13. From the records, we find that the appellant has been held
guilty and convicted under Section 302 of the Indian Penal Code. Entire
case is based on the direct evidence. While analyzing the evidence, we find
that P.W.1, P.W.3, P.W.5 and P.W.7 were in the house. Wife of the
deceased, P.W.7, was sleeping in the same room where the deceased was
sleeping. She saw the appellant entering the room and stabbing the
deceased with a knife. She thereafter became unconscious. P.W.7
(informant) stated further that while trying to catch the appellant, she was
assaulted and P.W.1 was also assaulted. P.W.1, who is the brother of the
informant, who was also present in another room, stated that on hearing the
scream, he reached the place where his brother-in-law was sleeping and he
saw the appellant stabbing the deceased in the right side of his chest. He
tried to catch the appellant, but he was also assaulted. P.W.2 also stated
that P.W.1, who was also present, tried to catch the appellant, while he was
fleeing, but P.W.1 was also assaulted, as a result of which he also became
injured.
14. Evidence of all these witnesses proves the case of the
prosecution that the appellant had stabbed the deceased. Their statement
corroborates with each other so far as injury upon the deceased is
concerned and also injury upon P.W.1 and P.W.7. All the witnesses stated
that there was stab blow on the left side of the chest. The doctor, who
conducted the postmortem also found stab blow on the left side of the chest
of the deceased. Witnesses also sustained injury, which is evident from the
evidence of all the witnesses. They were examined by the doctor-P.W.10,
who also found lacerated wound on Samsul Ansari (P.W.1) and Mohibini
Khatoon (P.W.7). Nature of injury was simple, but sharp cut. Witnesses
stated that these injured witnesses were attacked and assaulted by knife,
thus, their injuries is also proved by the medical evidence.
15. So far as the motive is concerned, all the family members stated
that since the appellant was asked on numerous occasions to take his wife
with him and he was refusing, he attacked and murdered his father-in-law.
The wife of this appellant, who has been examined as P.W.5,
has stated that on numerous occasions, appellant was told to take her, but
he flatly refused. P.W.7 also stated that the deceased was threatened of dire
consequences. P.W.5, in her cross examination, had stated that her
marriage took place 10 years ago and she lives with her parents.
16. The incident had occurred at 2 O' clock at night in the house of
the deceased. Thus, it is but natural that only the residents will be present at
that time of night. P.W.1, P.W.2, P.W.3, P.W.5 and P.W.7 were natural
witnesses, who were present and there is no doubt in their testimony nor
there is any discrepancy about the occurrence. P.W.4 is an independent
witness on hearing the scream, he reached the house of the deceased and
saw the deceased lying dead. He saw injury on the left side of the chest. The
deceased was injured on left side has also been stated by P.W.6, who is
also an independent witness. The doctor also found injury on the arm and on
the left side. Though there are some discrepancy, as P.W.1 stated that the
assault was on the right side of the chest, but the said discrepancy is
immaterial when they have stated that stab injury was on the chest. Further,
presence of the appellant at the place of occurrence was established by
witnesses P.W.1, P.W.2, P.W.3, P.W.5 and P.W.7, who are the residents of
the house and also by P.W.6, who is neighbour, who reached the place of
occurrence after hearing the alarm. He stated that he had seen the P.W.1
trying to catch the appellant and P.W.1 also got injured, as he was stabbed
by the appellant.
17. Thus, we find that medical evidence supports the ocular
evidence. Independent witnesses have also supported the prosecution case.
The motive has also been proved as all the witnesses have stated that the
appellant was refusing to take his wife to his house.
18. Thus, on overall assessment of the materials available on
record, we do not find any merit in this appeal calling for any interference
with the conviction or sentence awarded by the Trial Court.
19. Accordingly, the Judgment of Conviction dated 27th July, 2015
and Order of Sentence dated 28th July, 2015 passed by the District &
Additional Sessions Judge V, Giridih in Sessions Trial No.79 of 2012, do not
warrant any interference by this Court and, hence, the same are affirmed.
20. However, from the judgment, we find that though charge was
framed and appellant was tried for offences under Sections 302/324 of the
Indian Penal Code, yet while convicting the Trial Court has not whispered
anything about the charge under Section 324 of the Indian Penal Code.
21. We find that there is sufficient corroborative trustworthy
evidence that the appellant had also assaulted two of the witnesses. The
doctor also found the injuries on those two witnesses and that too inflicted by
sharp cut weapon. The witnesses also corroborated this assault. Thus, there
are sufficient material to convict the appellant also for the offence under
Section 324 of the Indian Penal Code. In our opinion, the Trial Court has not
mentioned about the offence under Section 324 of the Indian Penal Code
inadvertently. Thus, we also convict the appellant for offences under Section
324 of the Indian Penal Code and since the appellant's conviction and
sentence for offences under Section 302 of the Indian Penal Code has been
upheld, no separate sentence needs to be awarded for the offence under
Section 324 of the Indian Penal Code.
22. Considering what has been held above, we have no other
option but to dismiss the appeal. This appeal is, thus, dismissed.
23. Let the Trial Court Records be transmitted to the Court
concerned along with a copy of this judgment.
(Ananda Sen, J.)
(Subhash Chand, J.)
High Court of Jharkhand, Ranchi
Dated, the 07th May, 2024
Kumar/Cp-03
