Allowed

Quddus Khan And Anr. v. State of Jharkhand

Jharkhand HC19 Aug 2019Cr.A(DB)/370/2001

Case brief

AI extract

What is this about?

This judgment holds that the prosecution failed to prove the charge of murder under IPC 302 against three appellants. The High Court found the Sessions Judge erred by not analyzing the defence story of sexual assault, dismissed the prosecution circumstantial evidence including recovered weapons, and acquitted the appellants.

What did the court decide?

Conviction and sentence set aside; appellants acquitted of charges framed under IPC 302/34 and 201/34; bail bonds discharged.

Quddus Khan And Anr. Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND, RANCHI

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(Criminal Appellate Jurisdiction)

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Criminal Appeal (D.B.) No. 370 of 2001 with

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Criminal Appeal (D.B.) No. 1172 of 2003

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[ Against the judgment of conviction dated 08.08.2001 and the order of sentence dated 13.08.2001 passed by the Sessions Judge, Lohardaga in Sessions Trial No.623 of 1998/54 of 1998 ]

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Quddus Khan, son of Anwar Khan

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Taslim Ansari, son of Abid Ansari

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Both residents of village-Kairo, PS-Kuru, DistrictLohardaga

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.....Appellants in Criminal Appeal (D.B.) No. 370 of 2001

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Aklima Khatoon, wife of Quddus Khan, resident of village-Kairo, PS-Kuru, District-Hazaribagh

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.....Appellant in Criminal Appeal (D.B.) No. 1172 of 2003

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Versus

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The State of Jharkhand …... Respondent

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----------------- P R E S E N T

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HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellants : Mr. A.S. Dayal, Adv. For the State : Mr. Rakesh Kumar, APP

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J U D G M E N T

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Per, Shree Chandrashekhar, J. Dated: 19th August, 2019 Oral Order

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In Criminal Appeal (D.B.) No. 370 of 2001, Quddus Khan and Taslim Ansari are the appellants and in Criminal Appeal (D.B.) No. 1172 of 2003, Aklima Khatoon is the appellant. Both the criminal appeals arise from the common judgment passed in Sessions Trial No.623 of 1998/54 of 1998.

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Six persons were named as accused by the informant, namely, Md. Rashid Khan, brother of the deceased-Abid Khan, in

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his fardbeyan which was recorded on 27.12.1997 at about 9 a.m, on the basis of which Kuru P.S Case No.96 of 1997 was registered. After the investigation, Quddus Khan, Aklima Khatoon, Taslim Ansari and Sajid Khan were sent-up for trial to face the charge under section 302/34 IPC and under section 201/34 IPC for committing murder of Abid Khan and causing disappearance of the dead body.

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The learned trial Judge has convicted the appellants, namely, Quddus Khan, Aklima Khatoon and Taslim Ansari under section 302/201/34 IPC and they have been sentenced to R.I for life and fine of Rs.2,000/- each under section 302/34 IPC and R.I for 5 years and fine of Rs.500/- under section 201/34 IPC.

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The accused, namely, Sajid Khan has been acquitted of the charges framed against him; the learned Sessions Judge has extended the benefit of doubt to him.

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The informant, namely, Rashid Khan has stated in his fardbeyan that in the night of 26.12.1997, at about 10 p.m, Quddus Khan and Aklima Khatoon came to his house and asked Abid Khan, his brother, to come alongwith them for bringing the paddy crops from the field. Next day morning when he heard that a dead body is lying at Pathak Bagicha he went there and found the dead body of Abid Khan. He has seen blood trails from Pathak Bagicha to the house of Quddus Khan. In the night when Quddus Khan and his wife asked Abid Khan to accompany them Salamul Khan has also seen the accused persons. The informant has named Dilawar Khan also amongst the persons who had come to his house.

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During the trial, the prosecution has examined 7 witnesses; the informant is P.W.4.

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Dr. Sailesh Kumar, who has conducted the post-mortem examination over the dead body, has found the following injuries on

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Abid Khan:

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External injuries:

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I. A lacerated wound just above middle of left eye brow, directed vertically up size 2” X 1/2” X muscle deep. II. A lacerated wound on upper portion of left pinna size

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1½” X 1/4” Cartiledge deep.

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III. A lacerated wound on the anterior part of left occipital area size 3” X 1/2” X bone deep. IV. A lacerated wound extending from left occipital to left temporal region, size 3” X 1/2” bone deep.

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Internal injuries:

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A. Head and Neck- (I) Fracture of anterior part left occipital area with torn margins and laceration of the occipital lobe of brain with blood clots in relation to external injury No.III.

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(II) Fracture of the left temporal bone with torn margins with laceration of the internal part of the brain with clots of blood in relation to external injury no.IV.

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B. Thorax- Both lungs pale. Both chamber of the heart empty.

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C. Abdomen- Liver- Pale. Spleen- Pale. Both Kidneys- Pale. Bladder- empty. Time elapsed since death-12 to 24 hours.

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According to the doctor, cause of death is shock and haemorrhage resulting from the injury to the brain, which were ante-mortem in nature.

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The investigating officer who has been examined as P.W.7 had admitted in the court that he did not seize the blood-stained earth from the place between the house of Quddus Khan and Pathak Bagicha.

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The accused persons have also examined 7 witnesses in support of the defence story that in the night of 26.12.1997 when Aklima Khatoon was alone in her room and Taslim Ansari, her servant, and nephew of her husband, namely, Sajid Khan were sleeping in another room, Abid Khan and Nazir Alam entered her room and sexually ravished her one after another on the point of gun and knife. When Sajid Khan and Nazir Alam entered her room, finding Abid ravishing her, Nazir exhorted to kill Abid Khan whereupon an altercation started between them. On asking by Nazir, Sajid brought a kudal with which Nazir struck blows on the head of Abid Khan.

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The prosecution's case is based on circumstantial evidence; the learned Sessions Judge has recorded a finding that there

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is no eye-witness of the actual occurrence (para-36). The prosecution has relied on the following circumstances against the accused persons to prove the charge under section 302/34 IPC and under section 201/34 IPC; (i) Abid Khan was last seen in the company of Quddus Khan and Aklima Khatoon, (ii) blood trails were found from the Pathak Bagicha to the house of Quddus Khan and, (iii) Aklima Khatoon gave her confessional statement which led to recovery of blood-stained kudal , bed-sheet and gudra.

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The prosecution witness, namely, Islamul Khan-P.W.1 has deposed in the court that he has seen Kasim Khan, Anis Khan and Dilawar Khan in the house of Quddus Khan; they are brother-in-laws of Quddus Khan. In the mid-night, at about 2.30 a.m, when he woke up he found five persons carrying something to the eastern side and in the morning he has seen dead body of Abid Khan in Pathak Bagicha. He has stated that he has seen blood trails to the house of Quddus Khan. In his cross-examination, he has admitted that he did not raise any alarm when he found five persons carrying something towards the eastern side, however, he has stated that due to fear he did not raise any alarm. He has also admitted that he has not informed either the village Mukhia or Sarpanch or Chowkidar or the family members of Abid Khan about the night incident. The prosecution witness, namely, Nazir Alam- P.W.2 has stated that he has seen the dead body of Abid Khan in Pathak Bagicha. He has seen head injury on Abid Khan and blood trails upto the house of Quddus Khan. He is a seizure-list witness. He has stated that there was blood on the bed and blood spots on the wall of the room of Quddus Khan. P.W.3 and P.W.5 are also seizure witnesses.

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The informant-P.W.4 is the only witness on the point of last-seen-together evidence. He has stated that about 10 p.m in the night of 26.12.1997, Quddus Khan and his wife Aklima Khatoon came to his house and asked Abid Khan to accompany them for bringing paddy crops from the field. He has stated that Abid Khan accompanied them but did not come back in the night and in the

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morning he found dead body of his brother-Abid Khan in the Pathak Bagicha.

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The learned trial Judge has held that the informant has made developments in his statement in the court to what he has stated before the police. The learned Judge has also held that the confessional statement of Taslim Ansari is not admissible in evidence. The seizure-list witness-P.W.5 has stated in his cross-examination that he did not inform the police that Aklima Khatoon brought pillows, bed-sheet and other items to the police. The investigating officer has deposed in the court that he has not mentioned in the case-diary whether the cloths of the victim were blood-stained and whether those were recovered from Pathak Bagicha.

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No inquest report was prepared by the police. 16. The crime weapon (kudal) which was allegedly seized has not been produced in the court. There is no FSL report on the blood-stains found on the cloths of the deceased and the seizure-list witnesses have not fully supported the seizures made by the investigating officer.

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And, whether the defence story about Abid Khan ravishing Aklima Khatoon is probable or not, has not been discussed by the learned trial Judge.

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The accused persons have produced Wasir Khan-D.W.1, Md. Yusuf-D.W.2 and Rabul Khan-D.W.3 to establish that on 26.12.1997 Abid Khan has sexually assaulted Aklima Khatoon and he was killed by Nazir Alam. D.W.1, D.W.2 and D.W.3 have stated that on 27.12.1997 in the morning they have not found Quddus Khan and his brother-in-laws present in his house. D.W.3 has stated that he had visited Quddus Khan at Ranchi where he was taking treatment. The accused persons have examined Dr. Bishwanath Banerjee who has treated Quddus Khan at Ranchi. A copy of the complaint case on the basis of which Kuru P.S. Case No.04 of 1998 was registered under sections 452, 341, 323, 379/376/34 IPC against six persons including Abid Khan has been brought on record. The complaint case vide,

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C2/1998 was instituted at the instance of Aklima Khatoon who was at that time in judicial custody and this complaint was referred by the Magistrate to Kuru police station under section 156(2) Cr.P.C vide order dated 03.01.1998. In her complaint, Aklima Khatoon has stated that on 26.12.1997 her husband, namely, Quddus Khan had gone to Ranchi for treatment. In the night, Abid Khan and Nazir Alam entered her room and ravished her one after another. His servant, namely, Taslim Ansari and nephew of her husband, namely, Sajid Khan who were sleeping in another room came there and in the altercation which started between them Nazir struck spade blow on the head of Abid Khan to which he fell down and died. Thereafter, Nazir threatened them not to speak about the incident to any one and he carried the dead body of Abid Khan to some other place. It has also come on record that the informant and others were found assaulting Aklima Khatoon. The defence witnesses have spoken about assault by the informant and other witnesses to Aklima Khatoon, presumably on the doubt that she has killed Abid Khan.

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The witnesses examined by the accused persons have stood to their ground and nothing material could be elicited from them during their cross-examination by the prosecution. On the other hand, the prosecution's case is mainly founded on the last-seen-together evidence, which in view of the inconsistencies in the prosecution's case, mistakes in the investigation and unnatural conduct of P.W.1 and P.W.4 is not proved. The recovery of the incriminating articles at the instance of Aklima Khatoon is not such a circumstance which would point to the guilt of the appellants. Since, in view of the defence evidence, a serious doubt has been raised on the prosecution case, the recovery at the instance of Aklima Khatoon and marks of blood trail from the house of Aklima Khatoon would not help the prosecution proving its case against the appellants, particularly because these things corroborate the defence story.

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In the aforesaid state of evidence, it was the duty of the learned Sessions Judge to return a finding whether the defence story

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as portrayed by the witnesses examined on behalf of the accused persons was probable. Under section 354 Cr.P.C, it is the duty of every Sessions Judge to record the point for determination and return a finding thereon. In the present sessions trial, what the learned trial Judge has done is to record evidence of both the sides, but thereafter, without analysing the defence evidence he has held that the prosecution has successfully proved the charge under section 302/34 IPC and under section 201/34 IPC.

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In view of the aforesaid discussions, we hold that the prosecution has failed to prove the charge under section 302/34 IPC and under section 201/34 IPC against the appellants in both the criminal appeals and, accordingly, the judgment of conviction dated 08.08.2001 and the order of sentence dated 13.08.2001 passed in Sessions Trial No.623 of 1998/54 of 1998 against the appellants in Criminal Appeal (D.B.) No. 370 of 2001 and Criminal Appeal (D.B.) No. 1172 of 2003 are set-aside.

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The appellants, namely, Quddus Khan and Taslim Ansari in Criminal Appeal (D.B.) No. 370 of 2001 and the appellant, namely, Aklima Khatoon in Criminal Appeal (D.B.) No. 1172 of 2003 are acquitted of the charges framed against them in Sessions Trial No.623 of 1998/54 of 1998. 23. The appellants, namely, Quddus Khan, Taslim Ansari and Aklima Khatoon, who are on bail, are discharged of liability of the bail-bonds furnished by them. 24. In the result, Criminal Appeal (D.B.) No. 370 of 2001 and Criminal Appeal (D.B.) No. 1172 of 2003 are allowed.

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Let lower-court records be transmitted to the court concerned, forthwith.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated : 19^th August, 2019 R.K./ A.F.R.

Quddus Khan And Anr. v. State of Jharkhand

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Quddus Khan And Anr. v. State of Jharkhand

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