Md. Khalil vs The State Of Jharkhand

Per Rongon Mukhopadhyay, J. :

Heard Mr. Jitendra S. Singh, learned senior counsel for the appellant and learned A.P.P.

This appeal is directed against the judgment and order of conviction and sentence dated 16.09.2013 (sentence passed on 17.09.2013) passed in S.T. No. 451/2009 by Sri Vivekanand Banerjee, learned 8^th Additional Sessions Judge, Hazaribag, whereby and where under, the appellant has been convicted for the offences punishable under Section 302 and 201 IPC and has been sentenced to undergo rigorous imprisonment for life along with a fine of Rs. 10,000/- for the offence under Section 302 IPC and rigorous imprisonment for 7 years along with a fine of Rs. 10,000/- for the offence under Section 201 IPC. Both the sentences were directed to run concurrently.

The prosecution case arises out of the fardbeyan of Ram Charan Bediya recorded on 21.30.2009 at 11:45AM in which it has been stated that the informant is posted as a Digbar in Urimari O.P. and on the occasion of Ram Navami and the parliamentary elections, he had gone to collect information at village Paseriya at 09:00AM on the orders of the superior authorities. It has been alleged that as soon as the informant reached village Paseriya, one Sudhni Devi who had gone to collect mahua flowers had disclosed that about one kilometre from Purantola of village Paseriya in a mountain stream, the dead body of a woman is lying. At this information, the informant had gone to the said place where he had found the dead body of a female aged 30-35 years with marks of violence on her body. The informant was of the belief that some unknown persons had committed the murder and had thrown the dead body near the stream in order to conceal evidence. The dead body could not be identified by the villagers. The matter was informed to the Police Station, after which the police came and prepared a seizure list of the articles found at the place of occurrence.

Based on the aforesaid allegations, Barkagaon P.S. Case No. 42/2009 was instituted for the offences punishable under Sections 302, 201, 120B/34 IPC against unknown. On completion of investigation, charge sheet was submitted under Sections 302 and 201/34 IPC against Md. Khalil (appellant) and after cognizance was taken, the case was committed to the Court of Sessions where it was registered as S.T. No. 451/2009. Charge was framed against the accused under Section 302 and 201 IPC which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.

The prosecution has examined as many as ten witnesses in support of its case:

P.W.1 Sudhni Devi did not support the case of the prosecution and was declared hostile by the prosecution.

P.W.2 Shikari Manjhi has proved his signature on the seizure list which has been marked as Exhibit-1. He has also proved his signature on the inquest report which has been marked as Exhibit-2. This witness has also been declared hostile by the prosecution.

P.W.3 Parveen Chabra has stated that on 19.03.2009 at 12 noon, the accused along with his wife had come to her hotel. Their name and address were taken down in the register. They had left the hotel at 05:00PM and while leaving the hotel, they had signed on the register. She had not been able to identify the accused.

In cross-examination, she has deposed that Khalil who had stayed in her hotel would have been identified by her but the person in the dock did not stay in the hotel. She had never seen the person who is present in the dock earlier.

P.W.4 Dr. Gopal Das was posted as a Medical Officer at Sadar Hospital, Hazaribag and on 21.03.2009, he had conducted autopsy on the dead body of an unknown female and had found the following:

The cause of death was opined to be due to hemorrhage and shock as a result of the above-mentioned injuries. The post-mortem report has been proved and marked as Exhibit-3.

In cross-examination, he has deposed that death might have been caused due to accident.

P.W.5 Anil Kumar did not support the case of the prosecution and was declared hostile by the prosecution.

P.W.6 Ram Charan Bediya is the informant who has stated that he was posted as a Digbar in Urimari P.S. and he was deputed at village Paseriya for the parliamentary elections. He has stated that Sudhni Devi had disclosed that the dead body of a female is lying near the stream. He had gone to the said place and found the dead body after which he informed the Officer-in-charge who arrived at the place of occurrence with Police force. A slipper and a lady’s bag were found lying beside the road. No one could identify the dead body. He has proved his fardbeyan which has been marked as Exhibit4.

In cross-examination, he has deposed that he had never seen the accused before.

P.W.7 Laxman Singh was posted as In-charge Urimari O.P. and on 21.03.2009 on the basis of the fardbeyan of Ram Charan Bediya, Barkagaon (Urimari) P.S. Case No.42/2009 was instituted and he had taken over investigation of the case. He has proved the endorsement on the fardbeyan which has been marked as Exhibit-4/1. The formal FIR has been proved and marked as Exhibit-5. He has proved the inquest report which has been marked as Exhibit-2/2. He had seized various articles near the dead body and a seizure list was prepared which has been marked as Exhibit-1/2. The material exhibits as mentioned in Para 5 has been marked as Material Exhibit-I-XXI. He had recorded the statement of the seizure list witnesses and had also inspected the place of occurrence. The place of occurrence is situated at a distance of 1 km from Puran Tola in village Paseriya near a mountain stream. There was no sign of struggle at the place of occurrence. He had recorded the statement of Sudhni Devi who had first seen the dead body. He had also recorded the statement of Rama Kant Raman, the Officer-in-charge Hatia Rail P.S. and he had also obtained the photocopy of the inquiry report from Rama Kant Raman which has been marked ‘X’ for identification. In course of investigation, he came to know that the accused and deceased had stayed together at Janta Hotel, Station Road, Ranchi and he had verified the register of the hotel. The entry made in the register at serial no. 173 has been proved and marked as Exhibit-6. The entry made in the Guard Register dated 19.03.2009 at page 139 has been proved and marked as Exhibit-7. He had also recorded the statement of the owner of the hotel Praveen Chabra. He had obtained the post-mortem report and thereafter submitted charge sheet.

In cross-examination, he has deposed that Md. Khalil had admitted over phone that the number belonged to him. He had not made any inquiry about the first husband of the deceased. The deceased was identified by Md. Khalil, Rama Kant Raman and Aradhna Singh. The deceased was not identified in the photo by the owner of the hotel. It could not be ascertained in course of investigation, the place where the murder had been committed. He has deposed that no witness had stated about the accused being irresponsible in his job or absents himself from duty.

P.W.8 Anil Kumar Soren has been declared hostile by the prosecution.

P.W. 9 Rama Kant Raman was posted as an Officer-in-Charge Rail P.S. Hatia and in March 2009 the Officer-in-Charge Urimari P.S. had disclosed that the body of an unidentified female has been recovered and as per the documents recovered from the deceased are concerned, he had enquired about Md. Khalil and had submitted a report. He had identified the photograph of the deceased as that of Mamta Rani Dey alias Reeta Dey. He had stated to the Officer-in-Charge that when Md. Khalil was posted at Ghatsila, he had developed acquaintance with Mamta Rani Dey and Md. Khalil had identified himself as Rajesh Singh. Both had established physical relationship also. When Mamta Rani Dey came to know about the real identity of Rajesh Singh and that he was married, she started creating pressure upon Md. Khalil to solemnize marriage with her. In the meantime, Md. Khalil got transferred to Rail P.S. Hatia, but Mamta Rani Dey came to Hatia and was putting pressure upon Md. Khalil to solemnize marriage and when Md. Khalil refused, Mamta Rani Dey met the Rail I.G. and gave him a representation. After an enquiry, Md. Khalil was suspended after which Md. Khalil solemnized marriage with Mamta Rani Dey and consequently, his suspension was revoked. After a few days, a complaint was made by Mamta Rani Dey against Md. Khalil and again an enquiry was conducted and he had taken efforts to resolve the dispute but after a few days the differences between them again resurfaced.

In cross-examination, he has deposed that at page 139 of the Guard Register it has been mentioned that Md. Khalil was on duty as a Magazine Guard on 19-03-2009 from 12:00 to 02:00PM, 04:00 to 06:00PM and 08:00 to 10:00PM. At page 141 of the Guard Register, it has been mentioned that Md. Khalil was on duty as Magazine Guard on 20-03-2009 from 12:00 to 02:00PM, 04:00 to 06:00PM and 08:00 to 10:00PM. He has proved the handwriting of Constable Anil Kumar Soren at page 139 and the signature of Constable Ramashish Ram at page 141 which have been marked as Exhibit-A and A/1. He has deposed that at page 143 of the Guard Register, it has been mentioned that Md. Khalil was with the train escort party in Hatia Jammu Tawi Express from Hatia to Barkakana Station. He has proved the handwriting of Constable B. Bhagat in the register which has been marked as Exhibit-A/2. From 19-02-2009 to 21-03-2009, he was on duty as Officer-in-Charge. He had not received any complaint regarding Md. Khalil absenting himself from duty. In course of inquiry, he came to know that Mamta Rani Dey was deserted by her first husband.

P.W.10 Aradhana Singh was posted at Mahila P.S. who has stated that she had identified the photograph of Reeta Kumari. She had disclosed to the Investigating Officer that she had tried to resolve the dispute between Reeta Kumari and Khalil. Reeta had confided in her that Khalil had sexually exploited her on the pretext of marriage and later on though he solemnized marriage with her, but there was regular quarrel between them and Khalil used to assault her. This was the reason why she had attempted a settlement between both the sides.

In cross-examination, she has deposed that she does not have any personal knowledge regarding the death of Reeta Kumari.

The statement of the accused was recorded under Section 313 Cr.P.C. in which he has denied his complicity in the commission of the murder.

It has been submitted by Mr. Jitendra S. Singh, learned senior counsel for the appellant that admittedly there are no eyewitnesses to the incident and only on the basis of weak circumstantial evidence, the appellant has been convicted. Learned senior counsel has further submitted that the plea of alibi has not been properly appreciated by the learned trial court despite the guard's register having been produced indicating that the appellant was on duty on 19-03-2009, 20-03-2009 and 21-03-2009 and the duty hours were such that it would have been well-nigh impossible for the appellant to have committed the murder and dispose off the dead body at a far-off place. Learned senior counsel has referred to the evidence of P.W.3 who has denied that the appellant who was in the dock was the same person who had booked a room in her hotel. The deceased was the second wife of the appellant and there was an estranged relationship between them which was the motive for the murder as per the prosecution but no such question has been put to the appellant in his statement recorded under Section 313 Cr.P.C. Learned senior counsel adds that there is a total dearth of evidence so far as the appellant is concerned.

Learned A.P.P. has submitted that from the near the dead body, various incriminating materials were seized which specifically indicates about the role played by the appellant in the incident of murder. The appellant was not having a good relationship with the deceased who had made complaints to the higher authorities for which an inquiry was conducted and there is a definite motive of doing away with the life of the deceased.

We have heard the learned counsel for the respective sides and have also perused the trial court records.

P.W.1 had seen an unidentified dead body of a female lying besides the stream about 1 kilometer from Paseriya village and this was intimated to P.W.6 (informant) and on having found the disclosure to be true, the matter was informed to the Police after which the fardbeyan of P.W.6 was recorded and in course of investigation, the complicity of the appellant had come to light. Incidentally, P.W.1 has been declared hostile by the prosecution. Admittedly, there are no eyewitnesses to the occurrence and only on the basis of circumstantial evidence founded on the estranged relationship of the appellant and the deceased, the appellant has been convicted.

The dead body was recovered on 21-03-2009 and the autopsy was conducted was carried out on the same day wherein a finding has been recorded that the murder had taken place within three days. The investigation seems to have concentrated on the movement of the appellant from 19-03-2009 to 21-03-2009. In this context, we may refer to the evidence of P.W.3 who is the owner of a hotel in Station Road, Ranchi and who has stated that a person named Md. Khalil and his wife had come to the hotel on 19-03-2009 and had booked a room and they had left at 05:00PM on the same day. The name and address of Md. Khalil was taken down on the register and Md. Khalil had also signed on the same while checking out. This would have been an important link to the chain of circumstances had P.W.3 identified the appellant as the person who had booked a room in her hotel in the name of Md. Khalil, but P.W.3 in cross-examination has categorically deposed that the person standing in the dock was not the person who had checked in and in fact, she had never seen the said person. It is to be noted herein that the appellant was posted at Rail P.S. Hatia and the dead body was recovered in a far-off place within the jurisdiction of Barkagaon P.S. in Hazaribag district. Having ruled out the evidence of P.W.3 as of no consequence, we shall now delve into the testimony of P.W.7 and P.W.9 who are the only witnesses of substance.

P.W.9 was posted as an Officer-in-Charge of Rail P.S., Hatia at the relevant point of time and the appellant was also posted therein as a Sepoy. This witness had disclosed that while the appellant was posted at Ghatshila, he by concealing his identity had developed acquaintance with Mamta Rani Dey, the deceased, and on the pretext of marriage had established sexual relationship with the deceased. The deceased had later on come to know of the real identity of the appellant and she was putting pressure upon the appellant to solemnize marriage with her and when the appellant had adopted dilatory tactics, she had made a complaint to the higher authority after which the appellant was suspended from service. The suspension got revoked when the appellant solemnized marriage with the deceased. However, after a few days of marriage, marital discord resurfaced and the same did not subside despite the best efforts of P.W.9.

P.W.7 is the Investigating Officer who has proved the seizure list with respect to the seizure of various articles found inside a lady's bag lying besides the body as well as other articles scattered in and around the dead body. The documents inside the bag included a diary and some loose papers giving the chronological events that occurred after the deceased came in a relationship with the appellant. While describing the place of occurrence it has been stated by P.W.7 that no sign of struggle were detected at the place where the dead body was found and it could not be ascertained as to the place where the murder was committed. If the murder was committed at a different place and the body was thrown besides a stream, it would be inconceivable that the belongings of the deceased would also be kept besides the dead body by the appellant to ensure the identity of the dead body and to create a cloud of suspicion upon himself. Whosoever other than the appellant was the perpetrator of murder, the planting of incriminating evidence would be construed to be an act to frame the appellant.

When we revert back to the evidence of P.W.9, it transpires that on 19-03-2009 and 20-03-2009, the appellant was posted as a Magazine Guard having his duty hours from 12 noon to 10:00PM with a gap of 2 hours between each shift. On 21-03-2009, the appellant was on train escort duty in Jammu Tawi Express. Based on the duty chart, the plea of alibi has been taken by the learned counsel for the appellant. The learned trial court on perusal of the duty chart has come to a conclusion that there was a gap of 6 hours between each shift and this was the period utilized by the appellant to go from Hatia to Hazaribag, commit the murder and come back to join his duty without raising any suspicion. This finding by the learned trial court does not appear to be based on any reliable evidence and is merely speculative in nature.

The fulcrum of the prosecution case revolves around motive which stems from the purported estranged relationship between the appellant and the deceased which has been inferred to be the reason for eliminating the deceased. A perusal of the statement of the appellant recorded under Section 313 Cr.P.C. reveals that no such circumstance has been put to the appellant and, therefore, no reliance could have been placed by the learned trial court on such accusation.

On an overall conspectus of the case, we come to the conclusion that the prosecution has miserably failed to prove its case and consequently, the impugned judgment and order of conviction and sentence dated 16-09-2013 (sentence passed on 17-09-2013) passed by Sri Vivekanand Banerjee, learned 8^th Additional Sessions Judge, Hazaribag in S.T. No. 451/2009 is hereby set aside.

This appeal is allowed.

Since the appellant is on bail, he is discharged from the liability of his bail bond.

Pending I.A.(s), if any, stands closed.