Jharkhand High Court
Wasim Ansari vs The State Of Jharkhand on 6 December, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 277 of 2020
Wasim Ansari ....Appellant
Versus
The State of Jharkhand ... Respondent
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
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For the Appellant : Mr. Mahesh Kumar Sinha (2), Advocate
For the State : Mr. Bhola Nath Ojha, A.P.P
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07/06.12.2021 Heard learned counsel for the appellant, Mr. Mahesh Kumar
Sinha (2) and learned A.P.P, Mr. Bhola Nath Ojha on the prayer for suspension
of sentence made by this appellant through I.A. No. 5280 of 2021.
Sole appellant along with co-convicts, Md. Taiyab Ansari @ Viru,
Saqlain Ahmad and Md. Mustaq Ansari stand convicted for the offence
punishable under Section 302/34 r/w Section 120B of I.P.C. The other convict
Md. Amin has been convicted for the offence punishable under Section 302 r/w
Section 120B of I.P.C by the impugned judgment dated 18.12.2017 passed in
Sessions Trial No. 342 of 2012 by the Court of learned Additional Judicial
Commissioner-VI, Ranchi and all the convicts have been sentenced to undergo
imprisonment for life with a fine of Rs. 10,000/- each under Section 302/34 r/w
Section 120B of I.P.C. and a default sentence each by the impugned order of
sentence dated 23.12.2017.
Learned counsel for the appellant submits that the case of the
prosecution at best is of last seen, as would appear from the statement of P.Ws.
9 & 11, who claim to have seen the deceased going with the four accused
persons on two bikes. It is submitted that there is no eye witness to the
occurrence. P.W.9 also stated that deceased was in jail in connection with a
rape case. Seizure-list witnesses (P.Ws. 7 and 8) have stated that nothing was
recovered in their presence. The confession of the accused Md. Taiyab Ansari
was recorded first in point of time on 22nd November, 2011 at 06:45 a.m.
Thereafter the confession of Md. Saqlain Ahmad was recorded at 09:45 a.m on
22nd November, 2011 and this appellant was recorded at 11:00 a.m. on the same
day. On the confession of this appellant at 11:30 a.m., a motorcycle and a
mobile was recovered, whereas the knife allegedly used in the commission of
crime was recovered at 12:30 p.m. in the presence of all four accused persons
(Ext.1/1). It is submitted that since the confession of co-accused, Md. Taiyab
Ansari was recorded first in point of time, the confession of the present
appellant would have no meaning or evidentiary value under Section 27 of the
Evidence Act. It is further submitted that though F.S.L. report shows presence
of human blood on the knife, but it has not been ascertained whether the knife
which was recovered was indeed the weapon of assault. No reference sample of
the deceased was taken to corroborate whether the blood found on knife
matched with that of the deceased. It is submitted that the evidence collected
during investigation are unworthy of recording conviction upon the appellants.
It is submitted that co-convicts, Md. Mustaq Ansari @ Md. Mustaq Ansari @
Mustaq and Md. Amin Ansari @ Md. Amin have been enlarged on bail by
Coordinate Benches of this Court vide order dated 18th August, 2021 and 4th
December, 2019 in Cr. Appeal (D.B) N. 175 of 2018 and Cr. Appeal (DB) No.
450 of 2019 respectively. However, it is also submitted that the prayer for bail
of other two convicts Md. Taiyab Ansari @ Viru and Md. Saqlain Ahmad have
been denied by another Coordinate Bench of this court vide order dated 11th
April, 2019 and 13th March, 2018 respectively in Cr. Appeal (DB) No. 128 of
2019 and 171 of 2018 respectively. However, material discrepancy in the
prosecution case were not placed before the Hon'ble Court when the case of
those two convicts were taken for consideration. Appellant has been in custody
since 23rd December, 2017 i.e. the date of conviction. Therefore, he may be
enlarged on bail by suspending his sentence.
Learned A.P.P. has opposed the prayer. He submits that not only
the prosecution witnesses specifically P.Ws. 9 and 11 had seen the deceased
accompanying the present appellant and other three accused persons going on
bike, but the confessions made by all four convicts have led to recovery of the
weapon of assault, two motorcycles and also cell phone. It also appears that
upon his confession, one motorcycle and one mobile have been recovered from
custody of this appellant. F.S.L report confirms human blood on the weapon of
assault. The other two co-convicts, namely, Md. Taiyab Ansari @ Viru and
Saqlain Ahmad have been denied bail by another Coordinate Bench of this
Court. Therefore, appellant may not be enlarged on bail.
We have considered the submission of learned counsel for the
parties and taken note of the materials relied upon by them from the Lower
Court Records, including the period of custody undergone by him. The order
passed by Coordinate Bench of this Court in the case of other co-convicts have
also been placed.
On consideration of the materials on record, it appears that the
case of the prosecution is of last seen and there is no eye witness. It further
appears that the confession in first point of time was made by co-convict, Md.
Taiyab Ansari @ Viru at 6.45 am. on 22nd November, 2011, thereafter the
confession of the co-convict, Md. Saqlain Ahmad and this appellant were made
at 9:45 a.m. and 11:00 a.m. respectively. The dead body was recovered at 17:30
hours on 18th November, 2011 before confession were made as per the inquest
report (Ext.-7).
On consideration of the materials on record, two convicts
Md. Mustaq Ansari @ Md. Mustaq Ansari and Md. Amin Ansari @ Md. Amin
have been enlarged on bail by Coordinate Benches of this Court, though the
prayer for bail of the other two convicts, Md. Taiyab Ansari @ Viru and
Saqlain Ahmad has been rejected by another Coordinate Bench of this Court.
However, on consideration of totality of facts and circumstances, we are
inclined to grant bail to the appellant by suspending the sentence during
pendency of this appeal. Accordingly, appellant, above-named, shall be
released on bail, during the pendency of this appeal, on furnishing bail bonds of
Rs. 10,000/- (Rupees Ten Thousand) with two sureties of the like amount each,
to the satisfaction of Additional Judicial Commissioner-VI, Ranchi in
connection with Sessions Trial No. 342 of 2012 with the condition that
appellant and his bailors shall not change their address or mobile number
without permission of the learned Trial Court. Appellant and their bailors shall
also furnish photo copy of their Aadhar Card before the learned Trial Court at
the time of his release.
I.A. No. 5280 of 2021 stands allowed.
(Aparesh Kumar Singh, J)
(Anubha Rawat Choudhary, J)
Jk/
