Abu Bakkar Seikh and Others vs The State of Jharkhand

By Court. These two connected appeals arise out of the decision dated 08.5.2002 passed in Sessions Case No. 55 of 1985 by which the Additional Sessions Judge, Pakur has convicted and sentenced the accused Appellants in Appeal No. 289/2002 namely, Abu Bakkar Seikh, Hussain Seikh, Mirzafar Seikh, Umar Seikh and Azeed Seikh u/s 302/34 I.P.C. to life imprisonment and u/s 148 I.P.C. to six months imprisonment. Accused Appellants of Appeal No. 295/2002 namely, Mozibur Seikh and Saidul Seikh have been sentenced u/s 323/34 I.P.C. to nine months imprisonment, and u/s 148 I.P.C. to six months imprisonment.

2.. The trial court by the said decision has sentenced only 07 (seven) accused out of the total 14 (fourteen accused who had been put up for trial.

According to the prosecution story, at about 11 p.m. on the night between 27-28 November, 1984 while the informant Nasir Seikh was lying and talking with ins brother-in-law Nizamuddin Seikh after dinner and the other family members were sleeping in the house, about 5-6 people climbed into the roof of the informants'' house and with a ladder descended entered into the court-yard of the house and opened the main door of the house. From the main door, 10-12 more people entered into the house. All these persons were armed with Bomb, Chisel, Axe, Bicycle Chain and Iron-rod etc. The informant recognized all the 14 (fourteen) persons who were tried in the Sessions Trial and all of them are named in the F.I.R. allegedly in the light of a lantern. The informant alleges that he raised an alarm upon which he and his brother-in-law were assaulted with bicycle chains and iron rods because of which the informant was injured on the fore-head, arms, thigh and back. Azeed Seikh (who has been acquitted) is alleged to have enquired the whereabouts of Koyesh Biswas and alleged to have exhorted the others to kill Koyesh Biswas and to loot the property. According to the F.I.R., Koyesh Biswas i.e. father of the informant was sleeping in a Kothriin the centre of the house. Out of the 14 accused, Abu Bakkar, Hussain Seikh, Mirzafar Seikh, Umar Seikh and Azeed Seikh entered that Kothri. Abu Bakkar with the Axe in his hand and Umar Seikh with Chisel assaulted the Kayesh Biswas and killed him. When the assault was taking place Mirzafar Seikh, Hussain Seikh and Azeed Seikh were holding down the deceased Koyesh Biswas. Further according to the F.I.R. after murdering Koyesh Biswas, accused Abu Bakkar said to his co-accused that let us go, our work has been done and all the accused went out of the house towards north exploding bombs. After the incident, the informant was told by his wife that accused had snatched away and looted certain ornaments of the said wife and sister and some house hold goods, namely, five plates (Thalis) and a sheet etc. According to the F.I.R. the motive for murder and loot was old enmity between the accused and the family of the informant. It is also alleged in the sequence of the enmity that there is a case pending and in the month of July prior to the incident i.e. July, 1984 the accused had implicated the informant and his family members in a murder case and had them jailed.

The F.I.R. of the incident was allegedly lodged at 8.30 a.m. on the next day i.e. 28.11.1984. In all 11 witnesses have been examined by the prosecution. The informant has been examined as P.W.6, he claims to be an injured witness but the kind of injuries which he alleges in the F.I.R., in the light of the weapons alleged to be used namely. Iron rods and bicycle chain do not find very accurate support from the medical report as testified by P.W.5 Dr. S.N.P. Sinha. These injuries were examined the next day i.e. 28.11.1984 and on the informant one skin deep lacerated wound has been found on the scalp and all remaining injuries are mere bruises with swelling and tenderness. More importantly, the same doctor finds only bruises on the body of the informant''s brother-in-law namely, Nizamuddin. The assault by iron rod and bicycle chain on two un-armed persons by a large number of people would normally have resulted in greater and deeper injuries.

Although the F.I.R. is said to have been lodged at 8.30 a.m. on 28.11.1984 but it was not forwarded to the C.J.M. till 07.12.1984 which creates a little doubt whether registration of the F.I.R. has been ante-timed and the actual F.I.R. was lodged much later after due deliberation. This becomes more important because the only source of light is alleged to be a lantern but no such lantern has been seized by the Investigating Officer. The other injured witness Nizamuddin Seikh has been examined as P.W.8. As mentioned above, his injuries are mere bruises which do not appears to tally with the kind of assault alleged in the F.I.R. These factors are to be appreciated in the light of the fact that P.W.9 Md. Shamsul Haque and P.W.10 Abdul Haque, who have been examined basically as witnesses to the inquest, have also stated that they had reached the place of occurrence shortly after the incident but at that time names of the accused were not disclosed and it was alleged that dacoity had been committed in the house of the victim. These are independent witnesses. They are prosecution witnesses and they have not been declared hostile. The defense of the accused is that was the case of midnight dacoity by unknown persons, and the accused who are admittedly on inimical terms have been falsely implicated after due deliberation because the real assailants were not known and could not be detected and that is the reason why the F.I.R. alleged to have been lodged on 28.11.1984 was not forwarded to the C.J.M. till 07.12.1984 i.e. for a period of 10 days. The Investigating Officer has also not been examined by the prosecution, thereby depriving the accused of the opportunity to examine a vital independent witnesses as to what transpired between the alleged time of lodging of F.I.R. and the time when the same was forwarded to the C.J.M.

The description of what happened inside the Kothriduring the assault on the deceased contains too much graphic details, which is unlikely to have been witnessed by the informant who according to the evidence was tied-up in the Varandah by the accused at the initial stage. Although this story of tying-up the informant and his brother-in-law and thereafter assaulting them both is not the case taken in the original F.I.R.

Further if the motive was enmity as alleged in the F.I.R. and after committing murder, the accused Abu Bakkar said that their work has been done and therefore they should leave, the looting of petty house-hold items like sheets and plates (Thalis) does not appear to be consistent.

It is not alleged why Koyesh Biswas father of the informant was singled out for being murdered, when the enmity appears to common be against the family of the informant. There does not appear to be any good reason for sparing the informant and murdering his father only.

As stated above, P.W.9 Md. Shamsul Haque is an independent witness being the Mukhiya of the Panchayat and he has testified that he reached the spot after hearing bomb explosion and alarm of the villagers. On reaching the spot, he found Koyesh Biswas dead and the informant and his brother-in-law Nizamuddin Sheikh injured. Similarly, P.W.10 Abdul Haque Biswas has also reached the spot on hearing bomb explosion and found the deceased and two injured and according to these witnesses, the informant told them at that time that there has been a dacoity in his house and his father has been murdered by the dacoits. The evidence of these two independent witnesses cannot be ignored easily and it casts serious doubt upon the basic prosecution story which is narrated in the F.I.R. according to which altogether 14 accused persons entered into the house of the informant and they were immediately recognized by the informant in the light of a lantern, which lantern has also not been proved before the court by seizing the same. P.W. 3 is the wife of the informant. She also claims to be an eye witness. She says in her evidence that her husband and his brother-in-law were tied-up by the accused and thereafter assaulted by bicycle-chains and iron rods. According to this witness, after assaulting these two injured, the accused entered the Kothri and assaulted her father-in-law with sharp-edged weapon after which the accused Abu Bakkar snatched a gold chain from her neck and took out another gold chain from tin-box and the accused Saidul Seikh took out clothes and ornaments from the tin-box. This evidence also does not tally with the F.I.R., according to which immediately after murder, the accused Abu Bakkar said that their job has been done and they should leave. Now it is difficult to imagine where this witness (P.W. 3) was, from where she witnessed not only what happened in the Varandah but also what happened inside the Kothari. Why she did not rush to save her husband. P.W. 4 is the wife of the deceased. She also claims to be an eye witness upto the stage of assault of her husband after which she claims that she fainted. These two lady witnesses have virtually repeated the F.I.R. story but equally they are interested witnesses being close family members of the informant, with whom accused had admitted enmity, and therefore we would prefer to rely more upon the independent witnesses namely P.W.9 and P.W.10.

The manner in which accused are said to have gained access inside the house at 11 p.m. after climbing the roof with the help of ladder and comming down into the court-yard and opening the main door from which more accused entered into the house also is the typical story of a dacoity, rather than a case of vindictive murder. It is the admitted case of the prosecution that all these accused were well known to the family of the informant. There is no attempt by any of the accused to conceal their faces while committing the crime and in fact, exploding bombs while leaving the house would risk inviting attention of other witnesses from amongst the villagers. If the accused are well known to the family of the informant and are committing murder without any attempt to congeal their identity, and are also leaving several inmates of the house (who have witnessed the crime) alive, there does not appear any good reason why they should choose almost mid-night for committing this kind of offence.

The trial court itself has acquitted seven out of the 14 accused against whom the evidence is the same as against the seven convicted accused. Further the trial court has acquitted all the accused of the charge of looting the property which is the consistent evidence of the eye witnesses, except P.W.4 i.e. wife of the deceased who says that she fainted after seeing assault on her husband and therefore could not have witnessed the loot.

Therefore, in the light of the circumstances pointed out above, particularly the evidence of P.W.9 and P.W.10, we are of the opinion that the prosecution could not establish beyond reasonable doubt that incident happened in the manner as alleged by the prosecution in the F.I.R. We have doubt whether the accused were actually recognized by the informant as alleged, and that the F.I.R. was lodged at that time when it has said to have been lodged. Possibility is there that this is a case of mid-night dacoity. Dacoits could not be identified and that is why immediately after the incident when villagers reached the place of occurrence, names of the accused were not disclosed and it was merely stated that dacoity has been committed. Possibility also remains that F.I.R. was not lodged at 8.30 a.m. on the next day i.e. 28.11.1984 but was lodged much later after the assailants could have been traced or identified and the 14 (fourteen) accused persons were implicated on account of old enmity.

We, therefore, allow both the appeals and acquit all the seven accused-Appellants in both the appeals of the charges. The Appellants Hussain Seikh, Mirzafar Seikh and Azeed Seikh (in Cr. Appeal No. 289 of 2002) and Mozibur Seikh and Saidul Seikh (in Cr. Appeal No. 295 of 2002) are on bail their bail bonds are cancelled and sureties are discharged. So far Appellants, namely, Abu Bakkar Seikh and Umar Seikh (in Cr. Appeal No. 289 of 2002) are concerned, since they are in jail, they are directed to be set at liberty forthwith, if they are not wanted in any other case.