Unknown vs The State Of Jharkhand
2024 Latest Caselaw 10347 Jhar

Jharkhand High Court

Unknown vs The State Of Jharkhand on 12 November, 2024

Author: Ananda Sen

Bench: Ananda Sen

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         Cr. Appeal (DB) No.340 of 2002

  (Against the Judgment of conviction dated 17.04.2002 and order of sentence dated
  22.04.2002, passed by learned Additional Sessions Judge, Palamau, in Sessions Trial
  No.557 of 1988 (arising out of Chhattarpur P.S. Case No.75 of 1988 & G.R. No.744
  of 1988).

        Ghughul @ Isha Khalifa, S/O- SHAMSUDDIN KHALIFA R/O- VILL-
        MADWA, PS- CHHATTERPUR, DIST- PALAMAU.
                                                        ....          Appellant
                                Versus
        The State of Jharkhand.      .....                Respondent
                                  PRESENT
                   SRI ANANDA SEN, J.
                   SRI GAUTAM KUMAR CHOUDHARY, J.
                                       .....
        For the Appellant       :    Ms. Puja Agarwal, AC
        For the State           :    Mr. Abhay Kr. Tiwari, APP
                           .....
                           JUDGMENT

Dated 12.11.2024.

By Court:- Learned Amicus Curiae has put her appearance through V.C. and there is no complaint with regard to clarity and quality of V.C. Heard learned Amicus Curiae and learned counsel for the State.

1. Appellant no.1 [Shamsuddin Khalifa] has already died and as such, his case stood abated vide order dated 24.09.2024. Accordingly, the instant Criminal Appeal (DB) is confined to the appellant no.2 [Ghughul @ Isha Khalifa].

2. This Criminal appeal is directed against the judgment of conviction dated 17.04.2002 and order of sentence dated 22.04.2002, passed by learned Additional Sessions Judge, Palamau, (FTC No. 1) in Sessions Trial No.557 of 1988 (arising out of Chhattarpur P.S. Case No.75 of 1988 & G.R. No.744 of 1988) whereby and whereunder the appellant has been held guilty and convicted under Sections 302/34 IPC and sentenced to undergo life imprisonment.

3. The case of prosecution is based on the written report of the informant (P.W.4) who is father of the deceased. As per FIR his son had gone to purchase Tobacco in the shop of appellant no.1 [Shamsuddin Khalifa] where the appellant(s) alleged that he committed theft of money. The son (deceased) fled away from the shop by jumping from the window. He was chased by the

accused persons and the informant' wife [Johra Bibi] was also running behind the accused. Out of fear, the son (deceased) hid behind a tree, but he was caught by the accused persons who wrapped a towel (Gamcha) in his neck and murdered him. They dropped the dead-body in a well situated towards the west of the palm trees. It has further been mentioned that the wife of informant was following them and had seen the occurrence, so did one villager, Jasim Khalifa.

4. On the basis of written report of the informant, Police instituted First Information Report being Chhattarpur P.S. Case No.75 of 1988 under Sections 302/ 201 IPC against the accused persons.

5. In order to prove the case of prosecution, altogether eleven prosecution witnesses have been examined, being PW 1 (Ramdeo Singh), PW 2 (Bishwash Toppno), PW 3 (Johra Bibi), PW 4 (Sadique Khalifa), PW 5 (Nizamuddin Khalifa), PW 6 (Dr. Mithlesh Pd. Singh), PW 7 (Goodan Bibi), PW 8 (Jaibun Nissa), PW 9 (Alizama Khalifa), PW 10 (Jasimuddin Khalifa) and PW 11 (Rabi Kishore Tiwary) and relevant documents have been adduced into evidence and marked as Exhibits.

6. The learned Trial Court after going through the documents on record, convicted these appellants for committing offence punishable under Section 302 of the Indian Penal Code.

7. While going through the evidence, we find that PW 3, PW 5 and PW 7 are said to be the eye witnesses of the alleged occurrence. PW 3 is the mother of the deceased and she stated that her son (deceased) went to the shop of accused no. 1 [Shamsuddin Khalifa] wherein the accused had alleged that he had committed theft of money. He was chased by these appellants. This witness was also running behind them. It is further stated by her that these appellants with the help of towel (Gamcha) tied around the neck of the deceased, dragged and threw him in the well. It has been further deposed that he was thrown into the well, soon after his death. She also stated that Jasmuddin and Muria bibi were present at the place of occurrence and they had seen the occurrence. In cross-examination in paragraph 8, she stated that after the body was thrown into the well, she reached there.

8. PW 5 is also an eye witness, he stated that he was in his field and was returning when he saw the deceased running and these two appellants were chasing him.

Thereafter, he saw the accused persons strangulating the deceased with the help of towel and thrown him in the well. In cross-examination, he admitted that he did not raise any alarm when he saw the occurrence. The defence failed to demolish his testimony and tried to rake up a dispute which allegedly occurred 15-16 years ago between this witness and others, to discredit him.

9. It is the case of the defence that this witness contested an election 15-16 years ago, but lost and in the said election, the accused family did not help him and thus, he is supporting the deceased and deposing against accused person(s).

10. We do not accept the aforesaid contention, as the alleged election which according to the informant is the cause of dispute between these appellants and the informant had taken place sometime 15-16 years ago. It is true that these witnesses did not raise any alarm when he had seen the accused strangulating the deceased, but this cannot be a ground to disbelieve the entire testimony of this witness.

11. PW 7 is also an eye witness, he had also seen the deceased being chased by accused person (s) and he was caught and with the towel dragged by his neck and he was thrown in the well.

12. PW 4, who is the informant, is admittedly not an eye witness to the said occurrence. He is the father of the deceased and he admits that he was not in the house at that time. After he returned, he got the information about the death of his son from his wife who also told that Jasmuddin and Muria bibi were present there who had vouched about the said occurrence.

13. Surprisingly, Muria bibi has not been examined by the prosecution whereas Jasmuddin who was examined as PW 10 has been declared hostile. Even if, PW 10 has been declared hostile and Muria bibi has not been examined, we find that PW 3 PW 5 and PW 7 are the eye witnesses of the fact that deceased was chased by appellant(s) and he was caught by them and was dragged by neck through towel and thrown into the well.

14. Now the question is whether this case comes within the purview of Section 302 of the Indian Penal Code or not. To come to the aforesaid conclusion, we have to fall back to the statement of the doctor. Doctor has been examined as PW 6 and he has conducted the post-mortem of the deceased and the same has been marked as Ext. 3. The doctor found an abrasion of 2"x 1½" over the upper part of left auxillary region and one abrasion of 5" diametre over the

lateral aspect of upper part of left thigh. He found that lungs were pale and its cut pieces floated over water. He specifically stated that as per his observation, no definite cause of death could be ascertained. The opinion regarding the cause of death was reserved till the report from the Forensic Science Laboratory received. It be noted that the FSL report is not on record as the same was not produced by the prosecution.

15. Thus, from the evidence of the Doctor (P.W.6), one thing is clear that he could not ascertain the cause of death and as such, he has not corroborated the testimony of witnesses that death was on account of strangulation or drowning. It is the case of the prosecution that as per the evidence of P.Ws.3, 5 as well as P.W.7 with the help of a towel (Gamcha), the deceased was strangulated and then thrown into the well. But from the evidence of the Doctor (P.W.6), we find that he has not opined that cause of death was due to strangulation, though he had mentioned that in case of strangulation what should be the symptom. Thus, there is doubt about the actual cause of death of the deceased.

16. From the post-mortem report and also from the evidence of the Doctor (P.W.6), we could not find any material to suggest that there was mark of any injury over the neck of the deceased as evidence of strangulation. The injury(s) reflected in the post-mortem report is abrasion which according to us is not sufficient to cause death in the normal circumstances. The Doctor (P.W.6) also didn't make any observation nor stated that these injuries are sufficient to cause death in the normal circumstances.

17. In this case, the Investigating Officer has not been examined and thus, the place of occurrence has not been established properly. Consequently it has not been established that whether the well was fenced and if there was water in the well. There may be possibility that the deceased while being chased may have fallen in the well as the Doctor (P.W.6) has not given any definite opinion that the deceased was strangulated to death which is the case of the prosecution through the witnesses i.e. P.W.3, P.W.5 and P.W.7. Thus, how the deceased died remains a mystery. When the cause of death is not ascertained, it will not be proper to convict the appellant under Section 302/34 IPC.

18. Thus, by giving benefit of doubt, we hereby acquit the appellant [Ghughul @ Isha Khalifa] from the charges. Since he is on bail, as such, he is discharged from the liability of his bail bonds, so the bailors.

19. In the result, the instant Criminal Appeal (DB) stands allowed.

20. Considering the assistance given by learned Amicus Curiae, we hereby direct the Member Secretary, JHALSA, Ranchi to pay remuneration of Rs.7,500/- to her at the earliest.

21. Pending I.A., if any, stands disposed of.

22. Let T.C.R. along with a copy of this judgment be sent to the court concerned at once.

(Ananda Sen, J.)

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated.12.11.2024.

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