Jharkhand High Court
Islam Khan Son Of Late Ashim Khan vs The State Of Jharkhand on 24 September, 2024
Author: Ananda Sen
Bench: Ananda Sen
Criminal Appeal (D.B.) No. 1440 of 2017
[Arising out of judgment of conviction dated 30.06.2017 and order of
sentence dated 10.07.2017 passed by learned Additional Sessions Judge-XI,
Dhanbad in Sessions Trial No. 189 of 2007]
Islam Khan son of Late Ashim Khan, resident of Village Sonbad Nirsa, P.O. &
P.S. Nirsa, District Dhanbad .... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellant: Mr. A.K. Sahani, Advocate
Mr. Ajit Kumar, Advocate
For the State : Mr. Pankaj Kumar, P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
By Court The sole appellant before this Court against the judgment of conviction and sentence under Sections 302, 392 and 397 of the IPC.
2. Informant of the case is the brother of deceased. As per the FIR, on 20.12.2006, at 10.30 in the day time he received information that his brother Dhiren Chandra Mandal was lying in an injured condition by the side of road. When he came there, he found him dead with injuries over his head and neck. The assailants had decamped with his motorcycle. He further stated that about six months back the deceased was assaulted by Karim Khan and one Sher Mohammad Khan and they had threatened him from not treating patients in his area.
3. On the basis of the written report, Nirsa P.S. Case No.309/06 was registered under Sections 302, 394 and 411 of the IPC against unknown. During investigation, the looted motorcycle was seized on the basis of the disclosure statement made by this appellant. Charge sheet was submitted against the appellant and other three co-accused persons who were jointly put on trial for offence under Sections 396, 397 and 412 of the IPC.
4. Altogether 13 witnesses were examined on behalf of prosecution and relevant document including post-mortem examination report, written report and confessional statement of the appellant and seizure list were adduced into evidence and marked as exhibits. Learned trial court held that there was 1 evidence only against this appellant and one Rashid Khan whose case was earlier separated and sent for enquiry by the Juvenile Justice Board. As the complicity of five persons was not proved, therefore, the appellant was acquitted of the charges under Sections 396 of the IPC and was convicted for offence under Sections 392, 397 and 302 of the IPC.
5. Judgment of conviction and sentence has been assailed on the ground that there is no direct eye witness to the incidence and the charge has not been proved on the basis of circumstantial evidence. P.W. 1 has turned hostile whereas P.W. 5, P.W. 6, P.W. 7, P.W. 8, P.W. 9, P.W. 10 and P.W. 11 are all hearsay witnesses. Learned trial court has drawn a presumption under Section 114(a) of the Evidence Act only on the basis of the recovery of looted motorcycle on the disclosure statement of this appellant.
6. Learned counsel on behalf of State has defended the judgment of conviction and sentence. It is argued that considering the nature of offence where the deceased was waylaid, robbed and murdered in cold blood, there cannot be any direct eye witness to the incidence. It will amount to placing unconscionable burden on the prosecution to prove the impossible, by seeking direct eye witness account, where the crime is committed after due planning. There is direct evidence that the appellant was seen fleeing with the motorcycle and on his disclosure statement, the said motorcycle was recovered. No explanation has been offered by the appellant with regard to his knowledge about the fact discovered on his disclosure statement.
7. Homicidal death of the appellant is objectively established by the Autopsy Surgeon (P.W. 13) who has proved the post mortem examination report (Exhibit 7). Bare perusal of the post mortem examination report shows multiple critical injuries on the vital part of the body on head and chest. The death was due to carnio-cerebrum skull injuries caused by heavy cutting weapon. On examination, following ante-mortem external wounds found over the person of the deceased:
I. Incised wound 3" x ½" x brain deep with brain matter coming out over left side of forehead with margin irregular and contused. II. Incised wound 3¼" x ¼" x muscle deep at the level of 3rd and 4th cervical vertebra with edges irregular and contused. III. Incised wound 3" x ½" x bone deep over left temporal mastoid part 2 of skull with edges irregular lacerated and contused.
IV. Abrasion 3" x 2" over right side of forehead.
V. Abrasion 1½" x 1" over outer side of right eye.
VI. Abrasion multiple in an area of 1½" x 1" over dorsum of right
hand.
VII. Abrasion 1½" x ¾" over right knee.
VIII. Defused contusion over both upper eyes.
8. It has consistently come in the evidence of P.W. 1, P.W. 6 and P.W. 8 that the deceased was killed and his motorcycle was taken away by the assailants. This part of the testimony of witnesses has not been controverted as no question was put to them in the cross examination.
9. P.W. 2 has deposed that he had seen Rashid and Islam fleeing with the motorcycle of the deceased. This has also not been controverted in the cross examination. Testimony of P.W. 3 is also on the same line. His testimony has also remained uncontroverted. It has been held in State of U.P. Vs. Anil Singh, 1988 (Supp) SCC 686 that where a witness has not been specially cross-
examined on a particular question, court cannot presume something adverse to the witness in relation to that question unless his attention is specially drawn. Under the circumstance, the fact that the appellant was seen flying away after with the motorcycle immediately after the incidence, can be deemed to be established.
10. The Investigating Officer (P.W. 12) has given the description of place of occurrence in para 7 of his deposition to be situated on un-metaled road at 500 yards from the house of the deceased. Blood-stained marks were present on the road. The appellant was arrested on 24.12.2006 and on the basis of his disclosure statement (Exhibit 6), the looted motorcycle was seized from a jungle area. Learned trial court has rightly drawn attention Section 114(a) of the Evidence Act in view of the recovery of looted motorcycle on his disclosure statement by considering the ratio laid down in Tulsiram Kanu Vs. The State, AIR 1954 SC 1, Gulab Chand Vs. State of Madhya Pradesh, AIR 1995 SC 1598. Further, it is incumbent on the part of an accused on whose disclosure statement, looted articles are recovered as to how it came within his knowledge [See Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee, (2000) 6 SCC 269].
311. We do not find any infirmity in the finding of the learned trial court in this regard. As the appellant was charged for the major Section under Section 396 of the IPC which is for the offence for committing dacoity with murder, there was no error in conviction under Section 302 of the IPC, since the charge of commission of dacoity could not be established. In view of recovery of the motorcycle on the disclosure statement, the appellant was convicted and sentenced under Section 397 of the IPC. Conviction and sentence for the minor offence under Section 392 of the IPC was uncalled for in view of Section 71 of the IPC. Judgment of conviction and sentence under Section 392 of the IPC is accordingly, set aside.
12. Hence, the conviction and sentence under Sections 302 and 397 of IPC passed by learned trial court is hereby affirmed.
Criminal Appeal stands dismissed with modification in finding. Pending Interlocutory Application, if any, is disposed of. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.
(Ananda Sen, J.) (Gautam Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, 24th September, 2024 AFR/Anit 4