Ishtiag Khan vs State Of Bihar
2023 Latest Caselaw 3036 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.76 of 1996
======================================================

Ishtiaq Khan Son of Izhar Khan, Resident of Village-Samanpura, Police Station-Shastri Nagar, District Patna.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 124 of 1996 ====================================================== Md. Hafiz Khan Son of Md. Manin Khan, resident of Village-Samanpura, Police Station-Shastrinagar, District-Patna.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 76 of 1996) For the Appellant : Mr. Chitranjan Sinha, Senior Advocate Ms. Anukriti Jaipuriyar, Amicus Curiae Ms. Surya Nilambari, Advocate Mr. Pratyush Pratap Singh, Advocate For the Respondent : Mr. Bipin Kumar, A.P.P.

(In CRIMINAL APPEAL (DB) No. 124 of 1996) For the Appellant : Mr. Krishna Prasad Singh, Senior Advocate Ms. Anukriti Jaipuriyar, Amicus Curiae Mrs. Meena Singh, Advocate Mr. Mohit Raj, Advocate Mr. Shantanu Kumar, Advocate For the Respondent : Mr. Bipin Kumar, A.P.P.

====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 14-07-2023

Heard the learned counsels for the appellants and learned

counsel for the State.

Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

2. Both the criminal appeals arise out of common judgment

of conviction and order of sentence, hence they have been heard

together and are being disposed of by this common judgment.

3. When the present appeals were taken up on 24.11.2021,

none had appeared on behalf of the appellants and by order dated

24.11.2021, Ms. Anukriti Jaipuriyar, Amicus Curiae, was

appointed by another Co-ordinate Bench of this Court to assist the

Court at the costs of the State. Subsequently, when the appeals are

being taken up today on 27.06.2023, learned counsels for the

appellants have appeared.

4. Considering the same, with the consent of the parties,

Ms. Anukriti Jaipuriyar, Amicus Curiae, is permitted to lead the

argument.

5. Both the criminal appeals have been preferred against the

judgment of conviction dated 31.01.1996 and the order of sentence

dated 01.02.1996 passed by Shri Gopal Jee, 3rd Additional Sessions

Judge, Patna in Sessions Trial No.113 of 1994 arising out of

Gardanibagh P.S. case No.1002 of 1992, whereby and whereunder

the appellants have been convicted under Sections 302/34 and

120B of the Indian Penal Code (referred to 'I.P.C.') and Section 27

of the Arms Act and have been sentenced to undergo imprisonment

for life with fine of Rs.10,000/- each for the offence under Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

Sections 302/34 of the I.P.C. and in default of payment of fine,

further simple imprisonment for five years. The appellants have

further been sentenced to undergo rigorous imprisonment for

seven years with fine of Rs.5,000/- for the offence under Section

27 of the Arms Act and in default of payment of fine, further

simple imprisonment for one year. No separate sentence has been

awarded to the appellants under Section 120B of the I.P.C. All the

sentences have been directed to run concurrently.

6. The prosecution case, as per the fard beyan of informant

Aslam Khan (P.W.6) recorded by S.I. of Gardanibagh P.S. on

26.12.1992 at 10:00 a.m. is that the informant alongwith his

father Zaffruddin Khan and uncle Munnu Khan took tea near Jang

Bahadur Market. After having tea, informant's father proceeded

towards east from his Rajdoot motorcycle bearing registration

No.BH-1-9259 in order to meet doctor and also to meet the

Director, P.R.D.A. at Yarpur. Thereafter informant's uncle,

namely, Munnu Khan saw that one white colour Ambassador car

bearing registration No.W.B.C.1008, which was being driven by

Hafij Khan, and Babban Khan and Ishtiyaque Khan were sitting

on front seat by the side of the driver and three persons were

sitting on rear seat, went towards east. On seeing this, informant's

uncle suspected and he asked him to follow them. The informant Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

took the scooter of his Fufa (husband of father's sister) and

followed them. When he reached near Aerodrome, he saw that the

motorcycle of informant's father was dashed by the said car from

behind, as a result his father fell down. Thereafter, the persons

seated in the car also came out of the car and started firing. The

informant saw that Babban Khan and Ishtiyaque Khan having

pistols in their hand were firing shots from the same. They fired

five-six rounds of shots. His father became injured and also cried.

The way was an isolated place and on account of that they were

firing on his father without any hesitation. When they became

satisfied that his father was dead, then they again came in the car

and proceeded towards east. When they went away, the informant

immediately rushed to the father and saw his father dead. The

informant informed the Police Officer, who came to record his

fardbeyan and also sent information to his family members, who

also came at the place of occurrence. The cause of occurrence is

said to be that about a year ago, there was a quarrel in between

Babban Khan, Ishtiyaque Khan and his family members on one

side and the family members of the informant on other side. Both

parties had lodged cases in Shastrinagar Police Station and those

cases were pending in the Court. The informant further stated that

Babban Khan is a veteran criminal of the area and he always used Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

to threaten the deceased (father of the informant) to withdraw the

cases otherwise he would be killed. Ijhar Khan @ Tunu Khan,

who is father of Babban Khan, is Hawildar in Bankipore Central

Jail, who used to say that he will teach lesson on coming back of

Babban Khan from jail. Babban Khan being accused of a loot

case came out from jail one week ago and since then he was

threatening the informant and his family members and in a pre-

planned manner Ijhar Khan, Shambhu Khan, Babban Khan and

Ishtiyaque Khan alongwith others after hatching conspiracy

committed murder of the father of the informant.

7. On the basis of aforesaid fardbeyan of informant Aslam

Khan, an F.I.R. bearing Gardanibagh P.S. case No.1002 of 1992

was registered. After investigation, charge sheet was submitted

whereafter cognizance was taken by the Jurisdictional Magistrate

and thereafter the case was committed to the court of Sessions.

Charges were framed against the appellants to which the

appellants pleaded not guilty and claimed to be tried.

8. During trial, the prosecution examined altogether eight

witnesses, namely, Md. Irfan (P.W.1), Md. Safi Ahmad Khan

(P.W.2), Md. Ashraf Khan (P.W.3), Ram Jani Khan (P.W.4), Md.

Saifuddin Khan (P.W.5), Aslam Khan-informant (P.W.6), Dr.

A.P.N. Deo (P.W.7) and Jogendra Prasad Singh (P.W.8). In Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

support of its case, the prosecution has also produced exhibits as

Ext.3 (postmortem report), Ext.4 (fardbeyan), Ext.5 (formal

F.I.R.), Ext.6 and 6/1 (seizure lists), Ext.7 (inquest report). The

prosecution has also produced certain material Exhibits. The

defence has not produced any oral or documentary evidence in

support of its case. After conclusion of the trial, the learned Trial

Court convicted and sentenced the appellants in the manner as

indicated above.

9. Learned counsel for the appellants has submitted that the

judgment of conviction suffers from several infirmities that have

been overlooked by the learned trial Court and therefore, the

impugned judgment is not sustainable in the eyes of law. It has

been contended that no independent witness has supported the

case of the prosecution. Furthermore, PW 1 to PW 5 are hearsay

witnesses to the manner of occurrence and as such, their

testimony is inadmissible in the eyes of law. In order to buttress

this contention, the attention of this Court has been drawn

towards the deposition of the prosecution witnesses wherein they

have stated that they received information about the incident. It

has been further contended that the presence of PW 6 at the place

of occurrence is highly doubtful considering the fact that the

scooter which is said to have been used by him to reach the place Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

of occurrence from the tea stall has not been produced before the

police. The prosecution is completely silent regarding the

whereabouts of any such scooter and even the registration number

or the ownership of the scooter has not been brought on record at

any stage of the proceedings. The learned counsel for the

appellants thus contended that the prosecution has miserably

failed to adduce any direct or circumstantial evidence so as to

prove beyond reasonable doubts the involvement of the appellants

in the occurrence. Therefore, it is argued that there are severe

lacunae in case of the prosecution and the chain of circumstances

does not unerringly point towards the guilt of the appellants. The

finding of the learned trial Court is bad in law, wrong on facts,

bereft of legal reasoning, devoid of merit and the judgment of

conviction and order of sentence are fit to be set aside.

10. Learned APP for the State, on the other hand, has

submitted that the judgment of conviction and order of sentence

under challenge require no interference as the prosecution proved

the case beyond all reasonable doubts. It has been contended that

the informant (PW 6) is an eye witness to the occurrence and he

has specifically deposed during the course of trial that his father

(deceased) was done to death by the appellants herein along with

others. As such, the testimony of PW 6 is sufficient to form the Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

sole basis of conviction, as in criminal law, it is the quality and

not the quantity of the witnesses that is material. Furthermore,

minor inconsistencies in the testimony of the witnesses cannot be

a ground to reject their evidence as a whole. It is further asserted

that non-production of the scooter as an exhibit during the course

of trial cannot be ground to raise doubts on the case of the

prosecution. Accordingly, it is contended that the guilt of the

appellants has been satisfactorily proved by the evidence adduced

during the course of trial and there does not remain any hiatus in

the chain of circumstances. Hence, there is no infirmity in the

judgment of conviction of the learned trial Court.

11. After hearing the arguments advanced by the learned

counsels appearing for the parties and upon thorough examination

of the entire material available on the record, the following issues

arise for consideration in the present appeal:

(I) Whether the presence of the informant at the alleged place of occurrence becomes doubtful in light of the fact that the scooter, which is said to have been used by the informant to reach the place of occurrence, has not been produced as a material exhibit in the case?

(II) Whether there is any other substantive evidence to hold that the guilt of the appellants has been proved beyond reasonable doubts?

Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

12. With reference to issue no. I, upon thorough

examination of the entire material available on the record, it is

found that the informant has specifically stated in the fardbeyan

that on 26.12.1992 at 09:00 am, he along with his father

(hereinafter referred as 'deceased') and uncle was having tea near

Jung Bahadur Market situated in Raja Bazar and thereafter, the

deceased got on his motorcycle bearing registration no. BH1-

9259 and took a right turn and proceeded to meet the doctor and

the director of P.R.D.A. Thereupon, the informant's uncle (PW 5)

intimated the informant that a white ambassador car bearing

registration no. WBC 1008 had also gone in the same direction

and asked the informant to follow the vehicle. Thereupon, the

informant took a scooter parked near the Jung Bahadur Market

and began chasing the said car. It is apparent from the inquest

report (Exhibit 7) that the deceased person was done to death at

Airport Road, near Chidiya Khana which is situated at a far off

distance from the place where the informant was having tea. At

this juncture, we find it pertinent to consider that save and except

making an assertion in the fardbeyan about having used a scooter

to reach the place of occurrence, no material whatsoever has been

brought on record to prove the existence of the said scooter. It is

quite startling that neither was the said scooter produced during Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

the course of investigation before the police, nor did the

Investigating Officer (PW 8) make any seizure of the said scooter.

We have also taken note of the fact that though the PW 6 has

deposed during the course of trial that the said scooter belonged

to his Fufa (PW 4) and it was parked in front of the Jung

Bahadur Market, but no such statement was ever made before the

Investigating Officer during the course of investigation.

Moreover, the PW 6 has specifically deposed in para no. 9 that he

did not show the scooter to the police. Also, we find that PW 4

has not stated in his deposition that the scooter that is said to have

been used by PW 6 belonged to him and that he had given the

scooter to PW 6. At this juncture, it would be pertinent to take

note of the decision of the Hon'ble Supreme Court passed in the

case of Sunil Kumar Sambhudayal Gupta and Ors. versus State

of Maharashtra reported in (2010) 13 SCC 657, wherein para

nos. 31 and 37, it has been observed that:

"Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the Court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence ... ... The omissions which amount to contradictions in material particulars i.e. go the roots of the case/materially affect the trial or core Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

of the prosecution case, render the testimony of the witness liable to be discredited."

In our considered opinion, such conduct of the prosecution

clearly indicates that the informant's assertion about using a

scooter to reach the place of occurrence is a made up story,

narrated as a cementing material, so to facilitate the prosecution's

attempt of filling in the wide gaps that remain present in the case

of the prosecution. Thus, not only the presence of the informant at

the place of occurrence becomes doubtful, but also his credibility

as a witness gets deeply shaken. It is trite principle of criminal

jurisprudence that the testimony of an eye witness must not be

dangling and their testimony must be free from blemish and

devoid of any ambiguity, uncertainty and loopholes. In criminal

law loose and contradictory statements cannot be relied upon,

much less than forming the basis of conviction. In the case of

Sunil Kumar Shambhudayal Gupta and others versus State of

Maharashtra reported in (2010) 13 SCC 657, it has been

observed that:

"The discrepancies in the evidence of eye witnesses, if found to be not minor in nature may be a ground for disbelieving and discrediting that evidence. In such circumstances witnesses may not inspire confidence if the evidence is found to be in conflict and contradiction with Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

the other evidences and the statement already recorded. In such a case, it cannot be held that the prosecution proved its case beyond reasonable doubt."

Therefore, in light of the factual matrix of the case and in

light of the discussions made above, we are of the opinion that the

non-production of the scooter makes the presence of the

informant at the place of occurrence highly doubtful.

Furthermore, such conduct of the prosecution of not bringing on

record material evidence casts darks clouds of suspicion on the

genuineness of the assertions, eventually causing an irreparable

dent in the case of the prosecution.

Accordingly, the issue no. I is decided in the affirmative.

13. With reference to issue no. II, the attention of this Court

has been drawn towards non-examination of the material

witnesses in the instant case. It is apparent from perusal of the

case record that neither the owner nor any worker of the tea stall

were examined at any stage of the proceedings. They would have

been the most competent and independent witnesses to testify

regarding the presence of the informant and other persons at the

tea stall, that is the place wherefrom the entire incident began to

unfold. Additionally, their examination during the course of trial

would have provided valuable information regarding the use of Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

the scooter by the informant to reach the place of occurrence. We

have also given our anxious consideration towards the fact that

though PW 5 and PW 6 have stated that they had been frequently

visiting the tea stall for the past some time, but they have not

given any description about the name of either the owner or any

helper present at the tea stall. To the contrary, it has been stated

that after the incident, the said tea stall never operated again.

Thus, the assertion that the tea stall was operative on the date of

the incident is itself doubtful. We have also taken note of the fact

that the Investigating Officer of the case has not made any

statement about any tea stall in the case diary. In this context, it

becomes imperative to refer the Hon'ble Supreme Court

judgment delivered in the case of Takhaji Hiraji v. Thakore

Kubersing Chamansing reported in (2001) 6 SCC 145, wherein

para 19 it has been observed that:

"... ... if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise... ..."

Moreover, it is apparent that PW 1 to PW 5 are hearsay

witnesses to the manner of occurrence. It has been specifically

deposed by PW 1 and PW 5 that they were informed about the

occurrence by one Dil Mohammad, but Dil Mohammad has not

been examined as a witness in this case. the PW 2 obtained

information about the incident from the commotion in the village,

whereas PW 4 learned about it from the commotion upon

reaching Raja Bazar, and PW 3 arrived at the scene after the

police had already arrived. These testimonies highlight that the

information provided by these witnesses is based on the hearsay Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

account. In this regard, it is pertinent to take note of the rule of

evidence as stipulated in section 60 of the Indian Evidence Act,

1872, which states that "oral evidence must, in all cases,

whatever, be direct; that is to say- if it refers to a fact which could

be seen, it must be the evidence of a witness who says he saw it."

It has also been observed by the Hon'ble Supreme Court in the

case of Sakatar Singh versus State of Haryana reported in

(2004) 11 SCC 291 that "the statement of witness not based on

his personal knowledge but on what he heard from others is

"hearsay" evidence and such evidence is inadmissible." In the

quest of holding the culprits accountable, the court cannot

become overzealous to the extent of basing conviction on

inadmissible evidence.

In light of the discussions made above, we are of the

considered opinion that there is absence of any cogent legal

evidence to prove guilt of the appellants beyond all reasonable

doubts.

Accordingly, the issue no. II is decided in the negative.

14. Every trial is a voyage of discovery in which truth is the

ultimate quest. In the present case, on the basis of the discussions

made above, we are of the considered opinion that the prosecution

has utterly failed to adduce sufficient evidences so as to prove Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

guilt of the appellants. The presence of the informant (PW 6),

who contends to be the sole eye witness, at the place of

occurrence is itself doubtful in light of the fact that the assertion

about using the scooter is not corroborated by any other material

available on the record. The prosecution has also failed to bring

on record the testimony of the tea stall owner/worker, who would

have been the most competent witnesses to testify about the

presence of PW 6 or PW 5 or the deceased and about the use of

scooter by PW 6 to reach the place of occurrence. Non-

examination of such material witnesses, is in our view, indicative

of falsehood and suggests suppression of true version about the

occurrence. Furthermore, there are severe latches and loopholes

in the testimony of the other prosecution witnesses and they have

failed to make out a foolproof case for conviction. There is

complete absence of any material to establish the missing

causative link to hold the appellants guilty. There are yawning

gaps in the chain of circumstances and the prosecution has failed

to elevate the case from the realm of 'may be true' to 'must be

true' as is the requirement set out by the Hon'ble Supreme Court

in the case of Santosh @ Bhure versus State (G.N.C.T) of Delhi,

bearing Criminal Appeal No. 575 of 2011. The prosecution has

miserably failed to adduce sufficient evidences to prove the Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

connecting chain of circumstances as to unerringly point towards

the guilt of the appellants. Conviction on the basis of conjectures

and surmises is unreasonable, unwanted, undesirable, not sought

for, arbitrary, whimsical and alien to the concept of our criminal

jurisprudence. Holding the appellants hostage to the

uncorroborated allegations and latches on part of the prosecution

is against justice, fairness and reasonableness. As such, we are of

the firm view that the dark clouds of suspicion looming large on

the story of the prosecution have poured down heavily to wash

away the entire dust ridden allegations. Hence, the conviction of

the appellants in the present case is not sustainable in the eyes of

law.

15. Therefore, we are of the considered opinion that the

conviction of the appellants is not sustainable in the eyes of law.

Both the criminal appeals stand allowed and the judgment of

conviction dated 31.01.1996 and the order of sentence dated

01.02.1996 passed by Shri Gopal Jee, 3rd Additional Sessions

Judge, Patna in Sessions Trial No.113 of 1994 arising out of

Gardanibagh P.S. case No.1002 of 1992 are set aside.

16. Since the appellants of both the criminal appeals are on

bail, they are discharged from the liabilities of their respective

bail bonds.

Patna High Court CR. APP (DB) No.76 of 1996 dt.14-07-2023

17. Before parting with the appeals, we record our

appreciation towards Ms. Anukriti Jaipuriyar, learned advocate

appointed as Amicus Curiae to represent the appellants, who has

rendered her able assistance to this Court in the appeals.

Therefore, we direct the Patna High Court Legal Services

Committee to pay a sum of Rs.10,000/- to Ms. Anukriti

Jaipuriyar, learned advocate appointed as Amicus Curiae to

represent the appellants at the cost of the State by a Co-ordinate

Bench of this Court by order dated 24.11.2021.

(Sudhir Singh, J)

( Chandra Prakash Singh, J) Narendra/-

AFR/NAFR                AFR
CAV DATE                27.06.2023
Uploading Date          14.07.2023
Transmission Date       14.07.2023