Jharkhand High Court

(Criminal Appellate ... vs The State Of Jharkhand on 20 July, 2021

   

IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (OB) No. 902 af 2015

 

fer of senile
: party
District & L Additioned Sessions fudyenn,

 

     
 

x
oy he | fearne ocd
No. 96 Sof SOG4 BCL of SOFL}

é r Ansari, s/o late Gafur Ansari, r/o village-Koriyana, P.S-
Sasantral, District-Godda . Appellant

 

Versus
The State of Jharkhand ... Respondent

(Neard through VC en 1S July, 2021 & 1S" Gaby, 200)

PRESENT

HOWBLE MR. JUSTICE SHREE CHANDRASHEKHAR
"RON BLE MR, JUSTICE RATNARER BHENGRA

 

Sor the Appellant(s} > Mr. Manoj Kumar Sah, Advocate.
For the State . Mra. Nehala Sharmin, APP

JUDGMENT

ee &. x ON Is fOrePS02d Pronouns ed. on. 20 fOr fe "ab

shekhar J.

Per, Shree Chandar:

in Sessions Trial New 96 of" 2006 01 "of: 2013, Anwar Ansan has beer convicted and sente need to undergo RI for life urider section SO2/34 of the Indian Penal Code and RI for 3 Years with a fine of Rs.S000/- under section 201 of the Indian Penal Cade, with defaull stipulation. we Pathargarna (Basantral) PS Case No, 95 of O08 was lodged on 02.06.2008 against Tabla Ansari, Suleman Ansari, Karu Ansari, Vilash Ansari, Arwar Ansari and Mangan Ansari, for eommltting murder of Imrana Khatoon and causing disappearance of her dead bedy. In his furdbeyan which was recorded on

O2.0U6.2D08 af about 11:30 AM, Md. Nasam Ansari has stated that

in the intervening night of 01° /02"" June, 2008 while he had gone ta the house of Mc. Rafique for making dish {poori} the accused

abducted Imrana Khatoon frorm Bahiyar where she had gone with

Urbaunal Acccond (QSt No. SOS ck BES

her younger brother to case herself After the investigation «

charge-sheet was laid agamsat Suleman Ansari, Karu Ansari @&

Kahmuddin Ansari and Atabul @ Tabla @ Tabul Ansari while the Taveshgation against other accused remained pending. The trial

Arwar Arsari commenced in Sessions Trial No. @6 of

Ol of 2012 ansi the other accused who at same point in time hac absconded faced the irial separately. But the trial in Scasions Trial No. S6 of 2000/01 of 2012 progressed only in the year 2012 when charges under sections 002/34 and 201/34 of the Indian Bernal Code were framed by an order dated 13.06.2012 against Anwar Ansar who also was absconding for some time. The first judginent in Pathargama (Basantrai) PS Case No. 95 of 2008 carne

wn TS.09 2030 in Sessions Trial No. 27 of 2009 /400 of 2009

Suleman Ansari, Karu Ansari @ Kalimuddin Ansari and Atabul a Tabla @ Tatnad Ansari.

a. The prosecution has examined eight witnesses during the trial but the decter who coridueted the postmortem was not examined ~ the investigating officer has turned up in this case as BW?) Md. Nazam Ansari, the informant is PW, his wife is PW and hus som, the child witness, was examined as PWS. The other owo witnesses, PWS and PW6 were tendered by the prosecution for croass-examin nati . Mi.

a. TMs criminal appeal was heard along with Criminal Appeal (D8) No. 830 of 2010 and Criminal Ag ppeal (DB) No. 262 of eOiG, but we are delivering judgement in this criminal appeal

primarily lor the reason that there are two separate

written by diferent Sessions Judges by which the accused were convicted - the only significant difference in both the trials was that the investigating officer was not exarnined in

Sessions Trial No. 27 of 000/400 of 2009. The judement by us in

er wo criminal appeals is prepared simultaneously and since the informant, his wife and son have tendered almost sirnilar

evidence In both the sessions trials many passages in both our

judgments may look similar.

S. In Sessions Trial No. 96 of 2005/01 of SOIR, the

learned District & Additional Seasions ch adge-ll, Godda has held as

avidence avadaiie on the racany it i, Brother of the deceased who has His sister idioowased) wert fo Reld for fre surpase e fee vehementy alaied before fhe count fhat the SONU ne cd pe ssans Galena, Karis, Bivalvia, Mangna & Anwar carne and foroibly feos. fis sister by puffing ofoih in her mouth or 02.08. S008 af 1790 PM He Aas aiso atated Mat he Bas identified fhe ecoused of tho ji nsiepce of tebl of ford and eres sfler fe Care Rank fo fis house ane navralad ihe whole story ic fo iis ner PY Pah dean ANSEH Thoveatter r hey Started seared: cf dec9ease ana Khalou? buf ihe violin wee faceless and an fhe nowt 1 alarm was rafsed iat @ dead body wae Ning in iis well oF Suite Sran Arisayt As ihe prosecution wittessea, PMT, 2. 3 8 4 afnng ers went fo the well of Suleman Ansan a aay he ¢ pet te Wolim imrana Khatoan. The dase best Was fying ip fies wal and falf portion of neck wes cul The father

varie x i REGAL THR

from ihe avell PYVd Niean: Ansan father of the deceased also corruboraied {fe version of ihe PWS thal he heart about the aaoureace, by the mou of PW2 That fe accused persors

Forty y taken MNS Saughier inrana Khafeuw) fron ihe fel Ay patting oth: in her rmouih. PMY Bibi Khe air, mother af the vintini aso care SOU a ous fae et when she cane back oor her rae re flophon message Froobher Ban f then 7 her & son Sakir Ansar uf aged F about #8 & 70 years and her busbanc % Ale eran Asay he ave narrated fhe io My agoud fhe QOAUTHARION oO GLIFENO 76 ae if he aonused parsons forcibly

oe ie

IONAON nan ihe dese bec / 3 a of Half cut neck } a a p OW 8 G were dectin ed tender by ine pmsecution : ang d during caac-examination thay Have sisted ne af ihe tine of occurrence Anwar Ansan was workimy in the co

mi af Manibal But ne any material pe roduced | nek we fhe ce outt D

xy Phat af ihe fine oF ooci rence accused was in Mumbal and fume, £O. ao the ease fas cisaly aiafad Defore: ihe. anuat about } nod? Ee ace of ocGlrrennces. The Soundanes of fhe fis

PASS

: place of QOOUTRNCS IS. he. field of fab deceased was. fora Ko taken sya Dye thes

HOcuSed Oersaia. iA the NoHh-fieic-of Hall Ansar. South & East z

oP wen

Weshfigid of sida at Ansan. He nas idece of ceourrence La. fhe well fram S Fee overs The boundaries of fhe oface AUTEN INS WDaneore dary, Westfield of Suen i, Noeth-fefel of Mat. "Abbas Stuih-PHen road and aise found ihe water of wall was mixe qd wht fie Boh He prepared fie

ae ceased fniwan ak safoan fe. marked as Ext 2

and cleary mentioned the deacript kon of dead body and found inal fire neck of dead body was half cut and afso observed iat fee murder has comnutied. He Ras also orived ie death st Pha ay

of body Sy which he sent ihe ieatdd body for posimoriem to Gadda i by ohawkiay, & AYES Dr Qin me Ghoudiary Ags clearly al fale ay fat a 02.086. 2008 he was posled as Per dioal ofheer af Sader Nospial, Gadde ark di te poatrnoreny afr fhe agi Dowy of mrana Khaled? ar ped found thal ihe agor marls was

nese! on all four fimbs, He siso found (f Cul injury on the size

"pee,

s PRT Rey . Sates. i settions:

a" VAS" by deep up fo infeiar surface of venkat ROHGNA. cub ores Gre troaet belo ihe faved of favyny & 4) Blood ves Ses G f infenor ivangie té neck severe damage and if Big opinkyl the

£ gaat was caused i due fo hemorrhage and shock as 3 result oh dove mentionad ayunes. The dead was caused within 24 fo 38 dours. Alf the avifgatiny olrousistanoes stowed! Mal fhe vintiy ily iakernt by Ges gocused Anwar Anse along ¥ vith offer

: s om [he Reld of Sufanan An San By puding Sloth a her mouth and affar Sal ihe last seen | iheary comes ine pday wane fies of sh 2 Nepeeek so Pn > Reo ES ; ny Be &ocused SVE Bk

thos: ties oy. eRe, peace os ~ i = stds she "y wre Ge deceased is fognd dead is -- mall that sosailuhity of

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aay person other tian the accused being die author of the cnpre beaynes i roossible. if is A postieely established thal he deceased was iasl See) alive and the deceased is found dead is so small Hal DOSS Diy of any person other than accused Seing ihe author of fhe orhrma bees nMes iniposaibig, Au ihe fanis so "esiablished and curisisien fo anty wth fhe Aypolhesis of the guily of fhe accused and alf these circumstances ar af conclusive neture ae oof im leave any reasonable ground for 9 sonefusion consistant wath ihe innocence of fhe ace niset ard # nual be such as fo show thal within all Auman probability the act sist have been dane by accused Qn the offer hard fhe accused could not espiain as fo whether he was nofun the aight wih ihe yietint. Apart from ital all ihe sroseculion wilhesses have narrated and alsa from the axhiGis 4, &, Coon dedalf of accused sheav that fare is oreadous anmiy behvean the father of viedo} relating io NAHONSAD snd earlier cases aro pending before ihe court fran

;

Kien

ott Becks provect fhe mative af fhe accused fo cause His

ey S

s. The above farration of chain and also ihe roe available on fhe record | found that ihe

carrobor AION 2 oft RYE

accused Aas nomonted the murder af ie deceased fmrana Rfatoon.by manner of culing her neck and pumose of the

disappearanas Of fhe evidence ahi ids Come thrown the dead body info the wel for the purpose of comealmnent Acooringly fhe amsecutian fas weil Gees? atte fo prove fhe Case against he BCusead Arie ar Ansa beyond the shade Of all ee ssunaBie "douine far dhe offence punishable Les S0R34 & BOTBIIAL AG. The ACCuUSeY Nal ely. Anwar Ansan isin jedinig? custody. Pul up on

22-08. 2019 for hearng on ihe point of sentence."

ee 4

G0 The case of the Wiklsebution hingss 3 aly "on the

testamony of Sakir Ansari. "His testimony is doubted o n the ground of his infimmate relation with lmrana iKhatoon. The enmity between the parties is another reason we are required to scrutinize evidence of PW keeping in mind probability of false im plica tion, But

evidence of a witness cannot be refected merely bec ause the

x se

witness is a élose re ative, and all that ig t equir edeis to serutinize

bod,

testimony of the re elated witnesses with a little care.

Fe In "State of ALP uo Mast Ram" the Han'ble S Court has observed as under:

n the point is wan seliod hat i ihe testimony

cannot f be disbeliaved oF » ihe ground of afy pEquareniant ix fo examine t their lestimony

In "Darya Singh » State of Punjab

the Hon'ble

Court Ras cibserved that the role of caution which

requires corroboration to evidence of the interested) witnesses

cannet be treated as an inflexible principle which can be applied

ally to all cases

ind

8, We would keep the aforesaid rule of caution in m

while scrutinising

testirmony af the related witnesses,

38, Sakir Ansari was aged about sight years when his sister ed and killed by the appellant. He was in house in the might of 18 une 2008 with his elder brother and sisters. He has deposed in the Court that in the night his sister asked him to

ancempany her to Bahivar for easing herself At that time, Atabul Yabul Ansari, Suleman Ansari, Naru Ansari @&

Kaumruddin Ansari, Amwar Ansari, Mangan Ansari and Vilash

¢ sai fy wet ae % pa ry ne bbe bee pot net %%

there and forcibly abducted Imrana Khateon by

"% Yas in her

synouth, He saw the accused in torchlight and

vere nt pen

ot.

wee ans ed LI, vd pores pe a wt ren:

ew pene bed,

rome, H

weed ~ yn odet.

a o

# wt qeaga.

tet

s whole up his brother and informed his father

about abduction af his sister by the accused. He along with his

pot ne pee reg:

jeep ye tt "u +' % ¥, es

scarched his sister but could not find her and next morning

he Tard Audia in the wilage that a dead body was seen in the well of Suleman Ansari. He has observed neck mary on the dead bady

of his sister which was lifted from the well of the accused. He has

ated in his cross-examination that he along with his sister wert to Bahiyar to ease themselves; he was carrying a tourch, and; saw the accused taking away his aister fursibly. He has further stated that he Hashed torchlight on the accused for 2-3 minutes

and the acoused took away his sister towards eastern side. He

disclosed name of the abchuctars to his father and the investigal

ane

when his statement was recorded ard has identified al af

RA. In the common law countries the children were considered to be able to understand that "they would burn in the eternal Hres of hel? iW they would He under eath and, therefore, « child witness wae permitted te testify under oath. Some authors Nave expressed serious concern regarding capacity of a child

wiltess to cepiose in a criminal trial. Bentham said that "children are undeserving of confidence and incapable of discernment'. Lord Morris' has observed that children's testimony is of a kind requiring corroboration as children may be unable to appreciate the @ulf separating truth and falsehood "owing to immaturity or

perhaps to lively imaginative gifts', In Wallwark' a child five years

& Uxdeeckaad Amend WE Bo. HOR vf SS

of age was not considered competent to give evidence in the Court. at half a century before that, Brewer, J. held that a boy five years

of age is not as a matter of law absolutely disqualitied as a

La. in India the law is very clear and adits no ambiguity.

118 of the Indian Evidence Act provides that a witness

getent to teatiiy unless a Court considers that he is

£5

COND

verted from understanding the question put to him, or from

y rational answers by reason of tender years, extreme old age, and cisrase whether of body or mind, or any other cause of the

Dattu Ranuac Sakhare vu. State of Maharashtra" the

Supreme Court has observed that if a child witness is

sompetent fo depose to the facts and. rellable one his

ne caudal 'be the basis for conviction, The le aw which 1 is quite

nu tion which the: C ourt shondd

yw ois that the only pe ecE

bear im mind while assessing the 'evid errce af a chill witness is that

the chill witness must be reliable; tus dearmansr is ike any other

covipetent witness, and; there was no Ikellhood of the withess

VS. in the Court, PW has narrated the ineidenti. in the

tight of OF 00,2008 Uh us

{ote ares SPE

ENGLISH TRANSLATION:

t. TRe incident fook place on 02.06.09 af 79:30 PM an 4 Sunday f fed gone wih my reer for defsas on My 'sisters name is iyana Khatoan. Alshul, Sweman, Kary, Viash, Mangan, Ane war fr i Bay

ar foOK aw yf rmy Siafar By putt in nga cloth in Ber mouth, } sae gfe and fan homes due fo fear After waking up

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wear WElts

nud Appeal {8} Na, SHG of BOTS

fay Soother { callect ery father wie y [email protected] going fo make dish (penn). iiektemed say father and starters searching "for Pr mty sister ail my ee

father but coud pot fined ber

&. The Hert day, fui waa paised that a dead body was jing in

ihe voll | i say fhe desd body oF my sister. Mor head was down in weler ad fega Joating. Thereafier { infurned my fothey way impyned ihe police. The police bros aght out ap sister from ihe wel { saw cul nark on he, Hak of my sister

3. Anwar of & of ihe gccused, who fook Wy Sister ig presen fovay. Witness identifies Aim and ofs HAS io identify the afher AlCUSER WHC AMR an representation loday:

id, In the ecross- examination, PW2 has admitted erimigy with the accused but his cross-examination did not yield much ta the defence. In his statement under section 161 of the Cade of ruminal Procedure, PW did not state > befare the police that the accused pat cloth in the mouth of Imrana Khatoon but when examined in the Court he said that the accused put cloth in the RRQ ER of imrana Khatoon and in his cross-examination he has stated that he could not see the cloth being thrusted in his sister's mouth, We are of the opinion that this variation in the ets atement of PW weuld not amount to contradiction. The witness is specific about appcarance of Tabul Ansari, Suleman Ansari, Karu Ansari, Viash Ansari, Mangan Ansari and Anwar Ansari in Bahiyar arc abduction of His sister by them. This evidence of PW? has

mauuned intact and we find no reasmn to doubt role of the

o yer as

appellant along with others in abduction of Imrana Rhatoon.

gS, An eight-year boy Is the only witness who has seen oS a

abchiction of Imrana Khatoon but iis not known how and where

she was murdered. Phe cr me weapon was not recevered ard

hlood-stained soll and cloth of the victim were not Seiad

Mr. Manoj Rurnar Sah, the learned counsel for the appellant would

contend that the aforesaid lacunas cast & serigus doukt on

komt af the appellant in murder of Imrana Khatoon and,

on the basis of uncerroborated testimony of the child witiess on the point of last seen together the appellant cannot he convicted for murder.

48, The law on the subject is well settled that on the basis of the evidence af a gal iiary eyewitness conviction can be recorded,

here is no law of universal application that testimony of a child

x : = $e é ~ g ot? baad oS acddasd Rac Sugal Esa Mamasan Rer Alalah wo King' Lord Goddard has

observed that: *

ii is a sours rule in practice not to act on the unecorroborated evidence of a child, whether sworn or unsvorn, but

this is a rule of prudence and not of law'. In "State of OP vp. Ashok

Dixit and Another™ the Hon'ble Supreme Court has observed that a

chiid may be swayed by what others may tell him and he may be ar easy prey to tutoring and, therefore, wisdom requires that evidence of a child witness nrast find adequate corroboration before iis relied' on.

iY. We would, therefore, proceed to exarnine whether there is independent evidence to corroborate PW. iS, PWiois the mother of Imrana Khatoun and she has deposed im the Court that she was with her sister-in-law at villag Nandeala where she received & call . from her sor Sakir Ansari that tmivana Khatoon was murdered and her dead body was four in the well. She has deposed in the Court that when she reached home her gon Sakir Ansari narrated the entire story how the accused abducted Imrana Khatoon, She has stated that there was animosity with the appellant. she further stated that when the deal body was taken oul from the well she was there and identified the. dead body. She has also stated that she saw the cloth in the mouth of dead body. PWO-Mad. Tabararie Ansari is a co-villager whe has statedl in the Court that in the night the informant came io his house and infermerd him that his daughter was abducted by Tabul Ansari, Vilash Ansari, Karu Ansari, Sulernan Ansari, Mangan Ansari aru Anwar Ansari. Ne had accompanied him in search of lmrana Khatcon who, however, could not be found and in the morning her dead body was found in the well. The informant who was examined as PW4 has stated in the Court that at about Q2:00 AM while he was going for making dish in the house of Md. Rafique his som Sakir came there and told him that Tabul Ansari, Suleman Ansari, Karu Ansari, Viash Ansari, Mangan Ansari ar Anwar Ansari have forcibly abducted Imrana Khatoon. He raised

x¥

hude, woke up the neighbors and tried to search for his daughter

but she could not be found. Next day morning Aula was raised in

Oo. Ae Pech ae?

& 2 AGN Posts POTS

x i

. Creatas Sppnal (Ry Ko. BIS of FAIS

the village that a dead bady was found in the well of Suleman Ansari and the chorwkidar informed him about the dead body.

a8, There appears consistency in the evidence of the other witricases who have sufficiently supported the child witness on the

, te

care of the prasecution case that Atabul @ Tabla @ Tabul Ansari,

othe

i KRalimuddim Ansari, Anwar Ansari,

Sifemarn Ansari, Karu Ansari:

Margan Ansari and Vilash Ansari were involved in abduction of

imrana Nhatoon. Seon after the occurrence, this information was given by PW2 to his father whe then immeciiately went to the house of PWS and informed him about abduction of his daughter. The Statement of PWe that his son informed him about abduction and the statement of PW that in the night PW4 oc ame and informed

Sim about abduetion of his daughter. by these accused are

acbnissible under section 157 of the Code of Criminal Procedure

and provide corroboration to the evidence of PWR,

=O, The accused have set up a apecific defence that the informant or anyone of his family members were not aware how and when imrrana Khatoon went m issin from the house ars] it was uy in the morning when the informant could know about murder of his daughter, and after due deliberations the appellant along

with others were implicated due to previous enmity. To elaborate upan defence of the appellant, Mr. Manoj Kumar + Mah, the learned counsel has contended that the striking time gap in the evidence of PWe and PW4 as regards the time when PW2 gave information about abduction and at what time PWR ac camparied Imrana Khatoon te Babiyar to answer nature's call would lead to only such COMUSION,

ois well-settled that in the evidence of proseciutio some inconsistencies, exaggerations improvements and embellishments are bound to happen and on the Prmlimor lapses in the testimory of a witness his evidence cannot be discarded i tote.

ee ey VP os fee POP ny py Ss ers ~ o eds In "Leela Ram ov. State of Haryan

3° 9

the Han'ble

upreme Court has held as under

vepes

a af bow m d ix be same discregaricies between fhe narrations of different wilhesses when Hey soeek on defeils, and

imeas ihe COE Nradicions ane of s moferial dimension. the BaD

Should ned Be used to jelison the evidence in its entirety...

an, In "Rohtash Kumar uw State of Haryana" the Han'ble

Supreme Court has observed as under:

"Ss. His 8 setiied legal ; proposition that while aporeciating the avidence of a wiiness, my sorepancies on invial matters winch GO peat afoot ihe cure af he case af fie prosecution, must pro aigf fhe court fo ryect tre evidence in #8 entiney wiless imefevant, dedais whist do sof in any way ; crediity of a winesas shoawd be ignared. The court 38S TO xarnine whether evidence read as a whole annears ty Rave a BAG of futh. Qnee thal impression is forned. # is undoublediy necessary for the court jo scrulinse fhe BvIGENCS TR Garis tart y keeuiig in We ihe deficiencies, drawhacks and

inf'es ported oul in the evidence as a wre arnt evaluate fheam fo And out winher Y is against the general fenor of fhe eviderioe giver by the wilne asses and wheiher the earlier

2? € aken, as fa render if urwartiry of beviel Thus. the court is nok cup posed fo ghve undue importance nMisAkyia noniradictions arkd.digcr fEPANCIES 4 pied do nat go to tof the mation and sheke ihe besic version of fhe prassouvon wiiiess. Thus. he court PRISE read the au fence of a NMOS Ha a whale, and consider ihe ouse in fight of the entiaty He edypun ISLANCES, igponng fie minor aise: crepanes WHA regoect fo Inwelimatiens. which do not affect ihe 8 of fhe © ase of fhe omsacuiion. The said discrepancies as mentioned abay 1auky Sal Be taken ats considerals 0p. as they cannot form

es §

grounds for ryecting tie evidence on recard as s whole. (See sive of UP ov ALA Anthony Siste Sarave aan and VARY V

The prosecution evidence notnithstangng mainar

week bet

ook

nS sk

Nee Inepires confidence of the Court. We Sind the cross-exantination of PW4 was also primarily revolving around

pute and criminal cases {7 ed against each other. His statements

nave been over-atretched by the learned ccuinsel for the appellant te contend that there is great variation between the staternent of

} but we find that minor variations in no w ray would

afiect the prosecution case. There is some discrepaney in the

evidence of PW2 and PW but the appellant's defence seems highly

improbable. The abduction of Imrana Khatoan in the right of 1*

gee

June 2008 became known to the informant when his son came back home and this fact is corroborated by the evidence of PWS who has said that PW4 came to his house in the night and

imformed him about abduction of his daughter by the appellant

and other five,

co rat

wees

28. The conduct of the prosecution witnesses who di vilaze has been criticised to impeach their conterided that enmity between the parties is

PO er ye aoe fg ai 2 ae $34

g :

simitted and according to PW2 he told his father involvement of

Suleman Ansari and others, stil, family of the victim girl did not raise Audie which creates doubt on the prosecition case that the

uvformant had gone for search of his daughter in the night.

2G, A child who has witnessed abduction of his sister by Sulsman Ansari with whom his family was on litigating terms may Mol raise cries due to fear for his own life. He ran te bis house and

is elder brather and father about abduction of his sister.

There is nothing unusual about bis conduct after the abduction of

hia sister. The conduct of a witness is examined in the context of

iS and cireumistances of the case and it is almost impossible ta

predict reaction of a persen, for different persons may react

diferentiv in similar situations, Ik is trite thar: mercly because

conduct of A witness may appear unnatural his testimony cannot

rd t

¢ mm, bodes pate g

searded, In "Rana Parfay B State of Haryana*'! the Hon'ble

upreme Court has observercd that there is no set rule of nat ral

dium and to discard the evidence of a witness on the ground mat he did met react in any partioular manner is to appreciate

evidence In a wholly unrealistic and unimaginative way. The

age

vas informed about abduction of his daughter by

uleman Ansari and others and he started search for his daughter

PWS. Normally a person would first ag pproach his relative mn such a situation and what PWS did,

Se In "Leela Ram?' the Hon'ble Supreme Court has observed as urider:

SY. Fhe Cowl shall fave io Gear in annd that diferent winesaes rant offereniiy under diferent sfuations: whareas

Some Decume apeechless, some slat walling eile some alfers fun away from fhe scene and yet fiers AVE SORE wind May Gone

fonware! witht couwNge, comiction and bavef inal ine wrong should be rernodied. As a malar of fant # depends upan individuals and indadduala, There cannot be any sef patierns or uniform rule of HUMAN POsckat a it discard a prece of evidence an the grou nd of Ais seaction nof falling within 9 set pafiem is unproductive and

& pedantic exercise."

28. In "Lahu Kamlakar Patil v. Shute of Maharashtra' the

eget, tee ?

"od bo, ped pet 'at pee % v.

supreme Court has observed as under:

BAO Sh deny ade adn: i. Fv oe oe at. .... ig vidd that witnesses fo cerfait animes may run away Say, Siew, a Me '

Fon? Uke Sopme and may also eave fhe place due fo fear and # Pare IS any deiay in thedr axarnination, the testimony should not

& iF Bas Be discarded. That apart a cout has fo ke se0 in mind that

ig Rxlesinel Appeal WS] No, 808 of 2088

WHESSES rant avereniivy under difierant situations. ' WHHeSSeS Yel a shock some seroma Beeplexed sons aE WEEN Sd Some rr away from the scane ang yel Some ve fe Cots age and conviction come sonvard esther io & FIR of get thenmelves axunined immediately. Thus, # fron indivi io individuals, There oarmot he unforrnily WM PBEChon, Whe the sale pane has 9 be Kept in mind e bs hame ia mind that F the conduct af ihe wdinags is ural and i8 not in accord wih accegtable fuumes iQur allow "ey yeriations, fhan Als fesiimony becomes HOME and is likely to be discarted."

ef murder is that Imrana Kh atoom was last seen ahve by his

Orother in the Ba ahivar from where she was abducted by the accused ard early next morming she was found dead.

=, AM order Pot comvViction for murder can } ve recorded H che

> *

prosecution setabi ishes that the victim was last seen alive with the

aecused ard there are other independent incriminarin z

cirelmmstances available on record which the accused has fatlerd ts

ai, in "Neeru maya Lal p State of Rajasthan' the Hor bie Supreme Court has < soserved as under

"té. The avrcumstence of fast secu § ingelfier does not by self ame Aacessanly feesd fo tie Inference fh: at # wus Mie accused who vornmiied de onime. There must be se: neihing more esiahs fishing canneckty between Me accused and ihe crime. Mare non. EXDaAOn ci Me part af fhe appellant, int our considensd DOUHEY?

by Asef sno! iead f proof OF gu aosinst ine appaligat*

ae, The circumstance that the appellant along with othe

abducted fmrana Khatoon is highly inerimin ating and this curcumatance is proved by cogent and reliable evidence a gTave Suspicion would arise on complicity of the appellant in the crime.

no law there would be a presturnption against the appellant if jt is

Shown that abduction of Imrana Khatoon was with criminal intent

tie burden to rebut the same would He on the appellant to we contrary. In the night when a minor girl is abducted an

to cause harm te her can be easly inferred. Mr. Manes

sak, the learned counsel for the appellant has contended > medical evidence that the time of de ath was between 24 to POR. postmortem examination which was conducted the

rer U4: 10 PM does nat sahisiy the proximity test and for

HE SOO PTS

28, The main plank of the prosecution to prove the charge

\ ' \ S

i3 Brhninel Apent A Ne, RE af BOTS

reason also an inference on cemplicity of the appellant in

x ce

gurdier of Imreama Khatoon cannot be drawn. In "Badhrajf uv State

the Han'ble Supreme Court has observed that "proximuty test" is a useful gure to fined out involvernent of an accused in the

it was held that where the time gap between the pomt of

sc when the wietim was last seen alive with the accused and

when she was found dead is so small that chances of any other persan other thar the accused committing the crime becomes remote the last seen theory becomes credible

33. The satirnation by a doctor about time of death of a. persan would be the approximate time and not abvays precise. A doctar renders opinion on the basis of the clinical examination of thes dead body and at that very moment. he has no help of any scientific test/report. His visual observation about vital OTRAS of a person is the anly guide to him and, therefore, & precise tiras of death of a person cannot be asce ertained ai the time of postmortem examiruation. Nariman, d. has observed that the evidence af a

medical man or other skilled witnesses, however, eminent, as to

what he thinks may or may not have taken place under partinuiar

combination of cirmumstances, however, confidently, he may speak,

beodny

is ordinarily a mater of mere opinion [refer: "Queen uv. Ahmed

The. autopsy over dead body of Imrana Khatoon was

. Dieviey Kumar on 02.06.2008. The postmortem report

in evidence through PW&, Medical Officer of Sadar

Hospital, Gadda. He has identified signatures of Dr. Digviay

. Tre postmortem report discloses a cut mpury cf the sive of

inches X lie inch", deep upto surface of vertebral column witing across the throat below the level of Larynx. The ductor has rerkierned ar opinion that the death occurred about 24 to 36 hrs. aetore the postmortem examination, which appears to have been sundnucterd, after G4:10 PM on 02.06.2008. In our opinion, the estimation of Umic of death of Imrana Khatoon by the doctor does

not contracict the prosenution case, rather supports it and satisfies

the proximity test.

to ~ id Urine Appeal {29} Np, HS of BOIS

38. The learned APP would submit that there was enmily between fhe acoused and the informant and the dead bady was isuaned inp the well of Sulerian Ansari who was one of the abductors ari therefore the appellant must explain this highly incriminating mrcuuristance which raises grave suspicion on his involvernent in

murder of lmrana Khatoan.

So PF es Fae ond en ae i. Bee ASOD ee sy Phyo peiG oa ~ WwW

36. In "Rajender v. State {NCT of Delhi?' the Hon'ble

supreme Court has held that when the accused does not throw any light upon facts which are specially within his knowledge the Court can comsider his failure to offer an explanation as an

addtional Hnk which completes the chain of incriminating oF. in "Rajender''® the Hon'ble Supreme Court has heki as

PS, Ha DOSEN a ins? seen with ive decoased. Ae "an explanavan. 98 fe how arnt when Ae partes wii? the deceased. i afher words, He muist funish an expla mafien ital aogears fothe cout fo be probable anc Rath waciory, and A Ae fats fo offer auoh ga expfanagion on the basis of facts within tis special kmeaviedge, ihe burden cast epon Rim under Seclion JOS is not disohanied. Partiudarly in cases resting On circumstantial evidenes, if ite accused fails to offer a

PEASY nin diacharge of fhe Durden pieced Gn AYR, aunh fadure by fiself can. provide af Boater fre in the-etain af circumsiances spved against Aim. THis, hoy YEVE!, GOSS fot aah

fhat Sector 108 shifts: the burden « of orca? of a odnnatdnal on ihe accused, Suoh Burveyt BRYA YS mats § or Se -pfosecufion, Ssohor 108, only fays down the rife that whan ihe aocused does none HVC any dee upon facie which are specially awihin: fisher OMIA age and wwhind cannot suppérh 'any {heory or Aypotheasis eonoanive wih Ais innocence, ie caurf can consider his fadure fg adduces an explanation ax an additional jink which cormpieies fhe spain af inonnunating ofcunmalsnces."

ae, The attending circumstances and the manner of

abduction of Imrana Rhatoon clearhy indicate involvernent of the

appellant along with others in her murder. The circumstance that the dead body of Imrana Khatoon was found in the well of Suleman Ansar by itself may nat be an incriminating circumstance, but in

the present case once her abduction by the appellant along with

poe

a Ohi

ers is proved recovery of dead body from the well of co-accused

Sweman Ansari would be anether incriminating circumstance

ainst him. PW2 has named the appellant and identified him

ee zs Ke

along with others as the abducters. Now the appellant is required

in law to tell as to what happened with Imrana Khatoon after her

tS Cristal Aweead QM Ns. POS of SQIE

3g, In the "State of WA ov Mir Mohammad Omar?" the Horie Supreme Court has observed that an inference can be

drawn against an abductors that they have cansed death an auf

this is not factually correct only the abchictors would know about

Ag. In "Sucha Singh v. State of Punjab' the Hon'bic Supreme Court has held as under:

"HS. The abductors alone coud fel the court as fo what happened to the deceased alter they were abducted. When fe abefuctors withheld fat information fram fhe onurt theve is avery fustfication for drawinx ihe infeyence. in fhe fght of all the preceding and success fing cirumstances adverfed fo above, fat the abductors ere ihe muniderers of ihe deceased"

#1. The prosecution evidence Is that. around midnight Imrana Nhatoon was abducted and next day early morning her dead body was found in the well of Sulernan Ansari. It was an urusual time in the night to leave home and Imrana Khatoon was vot accompanied by her elder brother who was sleeping in the house, A plea that Suleman Ansari would not have disposed of the

dead bady in his own well ean also be urged. But these issues

would take a back-ssat becaus e the testimony of the child witness ig reliable arcl trustworthy. Though it is not mecessary for the

accused to establish his innocence and burden to prove its case

always rests om the prosecution, the accused must put forth a

mausible and acceptable explanation to the prosecution evidence

howsoever weak if may be. The appellant has not put forth any

intervening circumstance which would suggest involvement of ary

Shy

ather person and time of death as estimated by Dr. Digvijay Kumar

does not contracict the prosecution story about abduction and

murder of Imrana Khatoon in the night of 01.06.2008. The appellant has set up a defence of enmity which im the facts of the

sase tnay cut both weys. What really transpired in the mind af the

s is not possible to decipher and any attempt te de so would

be Uke travelling in the realm of conjectures and surmises. But the

prosecaition story that the strained relationahip between daughter

ef Suleorian Ansart and son of the informant on account of which

1g Seimakeal Auueed IH} Ne. BOP ol TLS

the families have fled criminal cases against each other was the

eason the appellant alone with others has mairdered daughter of

the informant, we feel, has substance. AH the prosecution Witnesses were examined immediately after dead body of Imrana

Khatoor was recovered. The co-villagers seem to have been won ever by the accused and they have not supported the prosecution im the Court, though in course of investigation they had provided

vaduiable clue and information te the police. The informant, his wife

and son have, however, reiterated in the Court the staternents

which had given: belare the police. PW2 is specific about

appearance of Tabul Ansari, Sulernan Ansari, Kara Ansari, Vlash Ansar, Mangan Ansari ard Anwar Ansari in Bahiyar and abduction of his sister by them. This evidence of PWS has remaingd intact and we find na. reason to doubt role of the appellant in abduction of Imrana Khatoan.

he. In course of Investigation, the crime we apan was oot seized and the tourch in the light of which the child witness claamed to have identified the accused was not produced in the

Court, has come on record that the accused were residing in the

muddle. of the village and at the thme of the occurrence at least ben

brothers and sister of the victim were present in thes houss, but her

r brother and sister were not examined by the: investigating

ver, A pleais raised on behalf -of the accused that the aforesaid curiae In the prosecution case strike at the root of its case.

a in a criminal trial importance of production of the weap, blood-saaked soil and cloths and PSL/DNA report cannot be undermined but it is not ne: messary that absence thereat would ipso facto affect the trial, In "Rakesh v. State of LLP™® the Hon'ble

Supreme Court has held that production of the crime WEAPON LS ROL a Sine gua rion for conviction in a murder case. No witness has seen bow and where Imrana Khatoon was nrurdered. These facts were within exclusive knowled ge of the accused and it was almost impossible for the investigating officer to unearth these facts. is Our Opinion, in the present case absence of the aforesaid materials

which could have alsa come in aid of the prosemution ta connect

2 «

ehe accuses with the crime is not fatal for the proses AQIS.

4. in view of the aferesaid discussions, we hold that the imeriminating circumstances, such a , last seen tugether, recovery ef dead body fram the well of Suleman Ansari, hornicidal death of Imrana Khatoon and enmity between the parhies are proved by the prosecution by leading cogent evidence amd the chain of circumstances is so complete as to Iead to an imescape able conclusion that the appellant was involved in abduction anc mvurder of Imrana Khatoon. There is no material on record ta support any hypothesis consistent with inmoacence of the appellant rather the materials on record lead to a contrary conclusion. The learned trial -hudge has rightly held that the prosecution has proved the char ge.of murder against Anwar Ansari and we find no ground to interfere with the judgement delivered in Sessions Trial No. 86 af 2000/ O1 af 2012.

45, Accordingly, Criminal Appeal (DB) No. 902 of aOls 18 dismissced.

oo. The learned APP. has. informed the Court that the Want is in custody. |

ay A copy of the judgment < shall be sent to the concerned Jal Superintendent, and the Court concerned for nec seasary actor.

48. Let the lower Court records be sent. to the Court

corcerned forthwith.

nop tid. (Shree Chaadrs ashekthar, J }

i -- Sebi (Ratnaker Bhengra, J)

Aralt;

BARE