Jharkhand High Court
Kaushar Ali @ Kaushar Ansari Son Of Late ... vs The State Of Bihar (Now Jharkhand) on 14 January, 2025
Author: R. Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.206 of 1997(R)
1. Kaushar Ali @ Kaushar Ansari son of Late Raushan Ali
2. Marju Yadav son of Madhu Gope
Both residents of Bhaura No.12, P.S. Jorapokhar, District
Dhanbad.
----- Appellants
Versus
The State of Bihar (now Jharkhand) ----- Respondent
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
-------
For the Appellants : Mr. Mukesh Kumar Sinha, Advocate
For the Respondent : Mrs. Vandana Bharti, A.P.P
-------
CAV on 02.12.2024 Pronounced on 14/01/2025
JUDGMENT
Per R. Mukhopadhyay, J.
1. Heard Mr. Mukesh Kumar Sinha, learned counsel for
the appellants and Mrs. Vandana Bharti, learned APP.
2. This appeal is directed against the judgment and
order of conviction and sentence dated 13-08-1997 (sentence
passed on 23-08-1997) passed by Shri P. N. Yadav, learned
Sessions Judge Dhanbad in S.T. No. 453 of 1994 whereby and
whereunder the appellants have been convicted for the offence
punishable under Sections 302 / 120B I.P.C and have been
sentenced to undergo imprisonment for life.
3. The prosecution case arises out of the Fardbayan of
Shankar Rawani recorded on 06-01-1994 in which it has been
stated that at 10.30 a.m. the father of the informant namely
Shibu Rawani had gone to the clinic of Dr. Satya Babu when he
was being treated for his ailments for one month. It has been
alleged that after taking injection the father of the informant was
returning home when Kausar, Gupta, Marju Yadav and another
person came and forcibly took him to Mallapatti tank where he
was assaulted and he fell down on the ground. This incident was
informed to the informant by Munna Khatik at which the
informant went to the place of occurrence with several persons
and got his father admitted in Bhaura Hospital where in course
of treatment he died.
Based on the aforesaid allegations, Jorapokhar
(Bhaura) P.S. Case No. 08 of 1994 was instituted against three
named and one unnamed person. On completion of investigation,
charge sheet was submitted and after cognizance was taken the
case was committed to the court of sessions where it was
registered as S.T. No. 453 of 1994. Charge was framed against
the accused under Sections 302 /120B I.P.C which was read over
and explained to the accused in Hindi to which they pleaded not
guilty and claimed to be tried.
4. The prosecution has examined as many as 16
witnesses in support of its case.
5. P.W.1 Bhagwan Das has stated that he is unaware
about the incident.
6. P.W.2 Sitaram Dhibar has been tendered by the
prosecution.
7. P.W.3 Baiju Gope was declared hostile by the
prosecution.
8. P.W.4 Shankar Rawani is the informant who has
stated that his father Shibu Rawani was murdered on 06-01-
1994. He had gone for his treatment to Dr. Satya Babu and while
returning he was murdered near Malla Patti tank and this fact
was disclosed to him by Munna Khatik. Munna Khatik had also
disclosed that Marju Yadav and Kausar had committed the
murder. When on information he went to the place of occurrence
he saw his father lying in an injured condition. His father had
disclosed that Marju Yadav and Kausar had committed assault
upon him. He had taken his father to Bhaura Hospital where
after recording his statement his father had died. He has stated
that 15 days prior to the occurrence Kausar and Gupta had come
to his place searching for his father and when they could not find
him since he had gone for duty, they had left by issuing threats.
In cross-examination he has deposed that his father
died within 15-20 minutes of reaching the hospital. He had
conversed with his father on the way to the hospital. Munna
Khatik had come to his house and informed him that his father
has been assaulted. At that point of time his brother Shambhu
Rawani was also present. He had gone to the place of occurrence
alone where 20-25 persons had already assembled. His father
was not speaking but was only groaning for water. He has named
Dilip Kumar Mahto, Lakhan Vishwakarma, Guddu Vishwakarma,
Doman Mahto, Sarju Thakur amongst the 20-25 persons present
at the place of occurrence. These persons were also instrumental
in taking his father to the hospital. His father was not speaking
in the hospital as he was unconscious.
9. P.W.5 Munna Khatik has been declared hostile by the
prosecution.
10. P.W.6 Lakhi Devi is the wife of the deceased who had
gone to Bhaura on receiving information about the incident
where Munna Khatik and her son Shankar Rawani had disclosed
that Kausar Ansari and Marju Yadav have committed the murder
of her husband. The accused Gupta and Ansari had come to her
house 10-15 days prior to the incident.
11. P.W.7 Sudhir Kumar has stated that he had gone to
Bhaura hospital where he saw Shibu Rawani in an unconscious
state. The persons present had disclosed the name of Kausar
Miyan, Gupta, Marju Yadav and Munna as the assailants.
12. P.W.8 Rajeev Nishad has been tendered by the
prosecution.
13. P.W.9 Dr. Shailendra Kumar was posted as a Tutor,
FMT, PMCH, Dhanbad and on 06-01-1994 he had conducted
autopsy on the dead body of Shibu Rawani and had found the
following:-
(i) Swelling 1½" x ½" x ½" on angle of left eye and
(ii) Abrasion ¼" x ¼" on lower part of back of right
side of abdomen.
On dissection contusion 2½" x 1½" was found
on the left side of the chest over 6th and 7th ribs and
both the ribs were found broken in front at the site of
contusion. Body to sternum was broken at the level of
3rd intercostal space. Ribs from no.2 to no.5 were also
broken on left side. There was ecchymosis of blood
over left lung and it was found ruptured posteriorly in
upper lobe.
The cause of death was opined to be due to
injuries of lung as mentioned above caused by hard
and blunt force. He has proved the post-mortem
report which has been marked as Exhibit-3.
14. P.W.10 Manoj Kumar did not support the case of the
prosecution and was declared hostile by the prosecution.
15. P.W.11 Nirmal Jha has proved his signature upon the
inquest report which has been marked as Exhibit-1/1.
16. P.W.12 Shankar Rawani does not know Shibu Rawani
but he has come to know that Shibu Rawani has been murdered
by Marju Yadav, Kausar Ansari, Sadhu and Munna. He was
present at Bhaura hospital when Shibu Rawani had disclosed
that he had been assaulted by the said four persons. He had also
taken part in relation to the incident in a demonstration before
the police station on behalf of All India Student Federation. He
does not know any of the four persons.
In cross-examination he has deposed that he had
remained in the hospital with Shibu Rawani for 30 minutes.
17. P.W.13 Satish Chandra Rajak has been tendered by
the prosecution.
18. P.W.14 Ram Dayal Singh was posted as the In-charge
of Bhaura O.P and on 6th January 1994 he had gone with the
other police personnel to Bhaura hospital where the Fardbayan
was penned in his presence by Qayamuddin Khan, ASI. He had
taken over the investigation. He has proved the Fardbayan and
the forwarding report which have been marked as Exhibit-4
and 5 respectively. He has proved the inquest report which has
been marked as Exhibit-6. He had recorded the restatement of
the informant and had also recorded the statement of other
witnesses. He had inspected the place of occurrence which is
near the southern side of Budhwa Tank at Mallapatti. Since he
was transferred, he had handed over the charge of the
investigation on 18th April 1995 to Sub-Inspector Arjun Rajak.
The witness Munna Khatik had stated that he was working in the
railway siding when he had seen commotion from a distance of
200 yards from Mallapatti and when he went to the place of
occurrence, he had found several persons present and Kausar
Mian, Sadhu Gupta, Marju Yadav and another person were
committing assault upon Shibu Rawani who had fallen down and
Kausar Mian climbed on his chest and later on he was taken
towards the tank. Munna Khatik had called Shankar Rawani who
had thereafter come and admitted his father to the hospital. The
witness Manoj Kumar had stated that Shankar Rawani had
disclosed to him that four persons had committed assault upon
him.
In cross examination he has deposed that when he
had gone to Bhaura hospital of BCCL he had found Shibu
Rawani dead.
19. P.W. 15 Arjun Rajak has proved the signature of the
then Officer In-Charge of Jorapokhar P.S over the formal F.I.R
which has been marked as Exhibit-1/1.
20. P.W. 16 Janardan Singh has proved the formal F.I.R.
which has been marked as Exhibit-7.
21. It has been submitted by Mr. Mukesh Kumar Sinha,
learned counsel appearing for the appellants that it was Munna
Khatik who was projected by the prosecution as the star witness
as he was the only person who had claimed to have seen the
occurrence and the informant has also based his knowledge
about the assailants on the purported disclosure made by Munna
Khatik. Mr. Sinha has submitted that Munna Khatik has been
declared hostile by the prosecution. The dying declaration
purportedly given by Shibu Rawani also cannot be taken note of
as he was not in a position to speak after he was subjected to
assault.
22. Mrs. Vandana Bharti, learned A.P.P has submitted
that some of the prosecution witnesses have disclosed about
Shibu Rawani stating before them the role each of the appellants
had played in committing such assault.
23. We have heard the learned counsel for the respective
sides and have also perused the trial court records.
24. The only eyewitness as per the prosecution is Munna
Khatik who had given the initial information to the informant
about the assault committed upon his father by the accused
persons, but Munna Khatik who has been examined as P.W. 5,
has been declared hostile by the prosecution. P.W. 4, the
informant, has described the physical condition of his father,
though he has stated that on the way to the hospital he had
conversed with his father. This part seems to have been
developed as subsequently P.W. 4 has deposed that when he
went to the place of occurrence, he found his father unable to
speak but was only groaning and in the hospital he was in an
unconscious state. He has also stated that within 15-20 minutes
of reaching the hospital his father had died. P.W. 7 has also
stated about finding the father of P.W.4 in an unconscious state
when he had visited Bhaura hospital. The evidence of P.W. 12
also seems to have been developed as the deceased was
unconscious when he had arrived at the hospital. The inability of
the father of the informant to speak would further be
substantiated by the post-mortem report which depicts incised
wound on front of chest, incised wound on front of head, incised
wound on part of neck with cutting of larynx and esophagus and
blood vessels. Larynx and esophagus are some of the vital organs
which enables a person to speak and the manner in which the
neck has been cut affecting the said organs as well as chest and
heart, it would in all probability be impossible for the father of
the informant to speak. All these circumstances demonstrate that
the prosecution has been unable to prove the charges against the
appellants.
25. We, therefore, based on the discussions made herein
above, set aside the judgment and order of conviction and
sentence dated 13-08-1997 (sentence passed on 23-08-1997)
passed by Shri P. N. Yadav, learned Sessions Judge, Dhanbad in
S.T. No. 453 of 1994.
26. This appeal is allowed.
27. Since the appellants are on bail, they are discharged
from the liability of their bail bonds.
(Rongon Mukhopadhyay, J.)
(Arun Kumar Rai, J.)
Shamim/-
