Jharkhand High Court

Suleman Ansari vs The State Of Jharkhand on 20 July, 2021

 

 

 

IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)

Criminal Appeal (D8) No. $30 of 2010
With
Criminal Appeal (DB) No. 262 of 2010

  
  

  

s fudgment af nonutCHor dated ISL

     

 

i fey R20IO and the arder af s
é OIG pussed oy the leurned Ist Additional iXstrict & S
Gogda im Seastore Tra Case Ve. 2 7 OF 2O05/ 400 of 2009)

tn Criminal Appeal (DB}] No. 830 of 2010:

Suleman Ansari, s/a late Gafoor Ansari, r/o willa age-Kortvana, PLO.
Maheshtikri, P.S-Basantrai (Pathargama), District-Godda

Appellant

 

cont AND
TR Criminal Appeal wa) N o. 262 af 2010:

& Ta wl Angari, s/o late Dharma. Ansari, r,
o-Koriyana, P.O & PS-Bass antral (Pathargarna},  [Metrict-

   

bla @ Tabs

  

a Ansari © ) Kalimuddin' Ansari, s/o late Asgar Ansari, r/o

2

»- Korly ana, "BO & PS- Ba santral (Pathe rgama),. District-
.. Appellants

 

 

Gedd &

| Versus

The State of Jharkhand . Respondent

fies both cases Si

ari, sfo late Md> Rasgool Ansari. ria we Mape-
Basaniral (Pathar gama); Distric "M-Crodda.
. Respondent

. f a Cre Ar wal 1 E13) Ne.262 of BOLO]

 

 
     

   

2. Mad.. Nagam Ans
Sartyana, PO. &-P.S-

 

eard through V.C an IS July, 202] & 15" duly, 2001}

:

PRESENT

NONMBLE MRE. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA

 

For the Appellantis) < Mr. S.P. Roy, Advocate

fin Ce, Appeal BR} Ne, SAG af S101

Mr. Amit Kumar Das, Advocate

fix Ox, Apoeal {DSi Ne, BIS af AGI

Sor the State 2 Mr. Vineet Kumar Vashistha, APP
: fin Cr, Apreal U8} Na, BSG of SLD

Mrs.

 

Nehala Sharmin, APP
He Ur. Appest SB} No. 243 af ROTO}

 

 

 
 

Mainvns} Apyresd $85} Ne. HAG at ERIS
wee

 

SERRE RODE REESE CER ASSES SE SR RS

ce ¥ on 1S /OF (208) Pronounced on 20 /OF (2081

 

ey Shree Chandrushekhear, J.

siulerman Ansari, Karu Ansari @ Kalinruddin Ansari and

Atabul @ Tal

Yabul Ansari were put on trial on the charge of vmmitting murder of imrana Khatoon and for causing disappearance of her dead body. In Sessions Trial Case No. 27 of 2009 /400 af S009, they are convicted and sentenced to undergo R} for ate arid a Hine of Rs, 8,000/-.each under section 302/44 of the indian Penal Code and RI for 4 years under section 201/34 of the indian Perial Corde, with default stipulations. Ss On the basis of the Jfardbeyan of Md. Nasam Ansari which was recorded by Sidheshwar Sawaiyan, ASI of Bas: antral OP

an O2.05. 2008 at about dT 1:8. AM, Pathargama (Basantrai} PS

NSo. $5 of 2008 was registered under sextions 302/34 and 201 fas

of the Indian Penal Code against Tabla Ansari, Suleman Ansari, Karu Ansari, Vilash Ansari, Anwar Ansari and Mangan Ansan. The uvormant has stated that in the night of 61.06.2008 while he was away fram home the accused abducted his daughter from Bahiyar fopen Held} where sh Le had gore with her. younger brother to ease

et x

herself and next day morming: herd rad body was found in the well

of Suleman Ansari, one of the abductors,

ay Atter the Investigation a charge-sheet was laid against Suboman Ansari, Karu Ansari @ Naliruddin Ansari and Atabul ie Yabla @ Tabul Ansari while the investigation against other accused remained periding. The trial against Anwar Ansari and the other

acnused who at some point in time had absconded faced the trial

separately. In the sessions trial against the appellants the

prosechtion has examined mine witnesses out of whom PW4, PWS,

PWS and FWY are intimate ly related to Irmrana Khatoon. The doct

x . 3

who Conducted the postmortem examination and the Investigating

alicer were not examined during the trial, th ough postriortern

repart was proved through a compounder working at Sadar

Rospiial, Godda. In course of investigation, the crime w Sapan WAS

3 Oedaatwnd Agee} GH} Wa, BSR of BEN with

aot seized and a tourch or lantern in the light of which the cinid witness claimed to have identified the accus sed was not produced m the Court. it Ras come on record that the ancused were residing if the middie of the village and at the time af the occurrence other

siater of the victim were present in the house bart they

were not examined by the investigating officer,

Sakir Ansari is star witness for the prosecution. He was aged about eight years when his sister was abducted and killed b

the appellants. The learned Ist Additional District and Sessions Judge, Godda assessed and recorded his satisfaction about maturity of Sabir Ansari before his evidence was recorded. He was fy his house in the night of 1% June 2008 with his elder brother

ead sisters. He has deposed in the Court that in the might bis

siater asked him to accompany her to Bahiyar for easing herself. At Babivyar, Atabul @ Tabla @ Tabul Ansari, Suleman Ansari, Karu

Kalimmaiddin Ansari, Anwar Ansari, Mangan Ansari and Vilash Ansari came arid forcibly abducted Imrana Khataan. He ran ome and informed his elder brother about the orcurrence, His father had gone to the house of Md. afique to cook dish {poor}

and when he came back bome in the midnight he narrated §

gore

he entire episode to him. Next mortiing he heard Aulla in the village

g that a deact body was seen in the well of Sulerman Ansari. He has observed neck injury on the dead body of his sister which was "fed from the well of the accused. He dise dosed name of the abductors to his father and the invesig ating officer when his statement was recorded and has identified all of ther in the Court. g. in the common iaw countries the children were eongicered to be able to understand that "they would burn in tie eternal Gree of hell' if they would lie u nder oath and, therefnre, & eid witness was permitted to testify under oath. Some authors however expressed serious foncern rege. "ding capacity of a child

witness to depose in a criminal trial. Be niham said that "chudren are undeserving of confidence and inc apable of disce ammiment'. Lerd

Morrie! has observed that children's testimony 1s of @ kind

Usixalaal Appeal LOR} No. 8G af SED * 32

eon

Lhe gui' separating truth and falsehood "owing to immaturity or perhaps to lively Imaginative gifts'. In Wallwork' a child five years

of age was not considered campetent to give evidence in the Court.

XE S SS

aut hall a century before that, Brewer, J. held that a boy five years

ig not as a matter of law absolutely disqualified as a

Be In India the law is very clear and admits no ambiguity.

Seetion 118 of the Indian Evidence Act provides that a witness

shall be competent to testify unless the Court considers that he is prevented from urderstanding the question put to him, or from

giving rational ANAWwers by 'eason of tender years, extreme old ; Age,

ans diss ANS whet her of body or mind, ar any other cause of the

x ee . ge fe 7 eo ? = $. * i?

same kind. In *Surye wlarayana vw. State af K arnatal ca" the Hon'ble

Suprame Court has observed that the evidence of the child witness

cannot be rejected per se, bul the Court as a rule of prudence is

required ta consider such evidence with close scrutiny and only an being convinced about the quality of the statements and its

resability base conviction by accepting statement of a child

: The tretimoriy of PWS is doubted on the ground of his intimate relation with Imrana Khatoon. The e amity between the parhes is andi ther: res BAST WE are requ ured te 'scrutinize evidence of PWS keeping inn aind probability of | else mplication But evidence of a witness cannot be rejected merely because the witness is a

clase relative, and all that is required is to scrutinize testimony af

the related witnesses with a little care. We would kee pin mind the alaresaid rule of caution and scrutinize testimony of PWS whether he is a truthha and reliable witness.

8 fn the Court, PWS has narrated the incident in the

mMaght af O1.06.2008, thus:

= g :

Lot

Oriecinal Agpead {UB} Ka, FAQ af BERR wR Cehmnnd Anpest HR No. 282 of BOIS

# fet a)

ENGLISH TRANSLATION:

"tf cannot ied when ov sister wee murdered,

oy sister imrana asked me fo accom her i was carrying 38 fantern. i sat fo enewer nature's call af some naistene

Rouse. Aty sister imrane was also af samme CHSTANORO SG and caught my sister ana fabul put cio i ihe mouth 6 ni Sister,

Karu, Viash Ansari, Mangan and Anwer were aso behing fran, awayony sister.

>. On the aightof the incident, while going fo arrever nature's all ¥,

Sudeman foan

3. oF Ose AL ees | home and narrated fhe incident ia my skier a

Srother ityas Ansari Al habiene. Gry Oty 2 Srather INVES was ah hone and me other pereor was there, My mother had gana fo the house of

my aunt Woeada and my falher nad gane io make dish (purl in ihe o \

vilsce. § dy father arrived 2 Har some time and i narrated fhe incident!

fo him. My father went fo inform my arar nalfath ar Fab arague about ihe

incident, My father and other persons 4 ised Sule Rud Fer OFFG OaiTRD fhere. in the nayhi search was male for inwang bat ahs coded not be found. in ihe framing Pa WAS raised that the da sa body of my Sister was ag in the wed of Suleenan. The daad borly was taker out

Fran 3 fe ¥ edt ie fhe Pokce art feel there. There was ouf spark on

2. The polies fad recorded ray statamant The

fori {he se secuigec, aarmnely. Tabud Suleman are Kary curt art chimed fo idersify alhars ".

a We find that cross- examination of PWS did not yield sauch to the defence, which seems was aiming for a shot in the dark. In the crass-exammination, PWS has admitted enmity fh the accused. He has stated that about 2-3 years ago a quarre! took wlace benween his father and Atabul Ansar: arud Karu Ansari, Dut

he had ne recollection about the cause for the quarrel,

further stated that > place between his house and the w

~ >

Ssdeman Ansgar is pot inhabited and his |

yee is about 1G0 pe

away from the house of Suleman Ansari. According to him his

father came back home at about 04:00 AM in the morning after

sister and informed others about the occurrence,

the does not recollect their mame. He has admitted in the Cour

on pee rot

that the lady cheowhicdar who was on visiting terms with her farm

was the one who gave information in the morrung about &

$ %

& Rriarinal Appord HIB} Ha, 8ST of BOI with:

Cekaioed Aveenl ION No. abe. of BBs

body in the well. We are sald that in his staternent under section

of the Cade of Criminal Procedure, PWS did not state before

s police that the accused put cloth im the mouth of imrana Khatoon but when examined in the Court he has said that the acqueed put cloth in the mouth of Imrana Khatoon. We find that

PWS in hie cross-esamination fas stuc kk to his staternent made mi

che Court that he had informed the police that the abductors while

g away his sister hs ad put cloth in her mouth. Besides that, we

r the opinion that this variation in the statement of PWS would not ammunt to contradiction. The witness is speciic abcrut coming of Tabul Ansari, Suleman: An sari, Karu Ansari, Vilash Ansari, Manger. Ansari and Anw ar Ansari in Bahiyar and abduction" of 'is sister by them. This: evidence af PWS has ren nained intact ari we find | RO reason to doubt role of the appelle ants in abduction of im and Khatoan. |

LG, Mr. SP. Roy, the: Jearned counsel appearing for Suleman Ansari has referred to the judgement in Sessions Trial No. BOA af 2009 agah rat co-accused Mangan Ansari, in which Md. Nagar Ansari, Saukat At nsari ¢ and all other materis al WHNeSScs a turned hostile, to ampr ess upon Us that PWS is not a

ty rustworthy. witness. We are afrs aid that wee can look into the

padgmisnt in Se asions: Trial Now oe 2009 to 'hold that PWS is rat a a trustworthy: witness: Dur ing hi we ' exart rination in the present case, PWS was not confronted with his - statement made thereim and, an fact, the judgment in Sessions Tal Ne. QG6A af ZOOS was mot

delivered by that time and, thus, he was not afforded an

epporturity to explain the reason why he turned hostile in the said

ii. Mr. Amit Kumar Das, the learned counsel for Thc appellants in Criminal Appeal (DB) Nu. 262 of 2010 has challenged maturity of PWS to give evidence mm the Court on the ground that the learned [st Additional District & Sessions Judge, Godda did not put appropriate questions to ascertain his undersianding and

maturity ard 4 simpls put questions about his siblings which every child can answer.

i. The following questions were put by the learned

7 Civkemtaad Agegeeonk LNG} No. BF of ROTO with

Cekuine) Agucel {GB} Na. 68 af BEG

ist Additional [Mstrict and Sessions Judge, Gorda to PWS before 3 . a ay Sa EN ' secant o his deposition was taken in the Court:

SEPQIAT SPY

Be esaeensy seh pram By Bye? RP er Fe

ye seer OYE

ENGLISH TRANSLATION:

By the Gea?

Ge fashion Can you wile your nape?

newer No aa Question How maity be rothers do you have? Answer We are four brothers, wig are: alive, Quastion- Whether any of your brother is pissing? AnSWe?> Yes, ayy gidee sf brother Sev aaiddin AnSafl is TUSSI Question How fang bas your Sider Grolier bean mussing?

Anssver flo rey ace

Suesbor Now Many sist fers da ypu have? Answer i dat lwo sisters, one Pyes af home and another was kHed by suthag her neck

His dlear Ayn fhe above preliminary exarnnation (hat winess is

pormpeley he give evence °

a, The aric ent rule of Sommon law. was that ne

the age of rine years would be sworn" but the rule was not stablished. In Brasier" it was ruled that an infant though

the age of seven. years may be sworn in criminal case

groevided such infant, upon strict examination by the Court,

puasesses sufficient knowledge of the nature and consequences mf an oath. The provisions under section 118 of the Indian Bvidenc Act mabe it very clear that by reason of tender age a witness is mot

rendered incompetent to give evidence. It is fer the Court to form

an opinion whether child witness is capable of understanding the

ees

uestions put ta him. Obviously, the mumber of questions put ta

on, bod

him woukl not be important ard if is really not possible to lay

down & norm on formulating the questions to be put to a child

ten, Eduerts® FO NC S48

Mehyie«ol Appeat fOR} Ma, RI of RING yeith Bekmianl Appel {DR No. 282 of BUG

wittiess. The Isarned Ist Additional District & Sessions Judge, Codda has recorded his satisfaction that PWS was competent fo depose in the Court, and we de not see any reason to differ with the learned Judge on this issue. May be PWS is a boy of poor intellect but from his statement in the Court it is quite apparent that he was able to understand the questions and give rational

ea et ORET EEE ES RILSWers.,

18. An eight-year boy is the omly witness who has seen abduction of lmrana Khatoon but it is not known how and where she was murdered. Stating that the crime weapon was not recovered and blood-stained soil and cloth of the victim were not seized, Mr. Amit Kumar Das, the learned counsel for the appellants would contend that the aforesaid missing links In the prosecution case cast a serisus doubt on involvernent of the appellants in murder of Imrana Nhatcon and, therefore, on the basis of uncorroborated testimony of the child witness on the port of last seen fogether the appellants ¢ cannot be convicted for murder. is. The law on the subject is well settled that on the basis 'the evidence of a solitary evewitness conviction can be recorder. Yhere ds no law of universal application that testimony of a child witness cannot be acted upon without corroboration. In "Danryc

ew, State af Punjab' the Hon'ble Su ore eme Court has observed

that the rule of caution which requires corroboration to evidence of

iriterestedd witnesses cannot be treated as an miflexrble princinie which can be applied mechanically to all cases

is. We would, however, proceed to examine whether there is Midependent evidence to corroborate PWS

iY. PWi-Sultan Ansari has seen dead body of Imrana Khatoon in the morning af 02.06.2008. He has stated that on hearing fuula that a dead body was found in the well of Suleman

Ansari he had gone there arc saw neck of Imrana Khatoon sited.

In the cross-examination he has said that the well was about

SQ) yards from the house of the mformant. PW2-Saukat Ansari

henge

has alas stated about dead body of Imrana Khateon found in the

well of Suleman Ansari. In His cross-exwarmination he has stated

8 Urhesdead Append BP Ma, KH of BO RE

that he Hives adjacent to the house of the informant but he did not hear any fada in the night of the occurrence. PWS-Kuddush Arisari, a co-villager, who was told by the informant about abduetion of his daughter by the appellants turned hostile and stated in the Court that the informant never told him anything about involvement of the appellants in abduction and murder of

nis daughter. PW is the mather of Imrana Khatoon and she has

3 hy ae

sposed im the Court that she was with her sister-in-law at village Nandgola where she received a call from her son that Imrana Khateon was murdered and her dead body was found in the well. She has stated Si BALA whe noshe reached home her son narrated the eritire story: how the accused abducted Imrana Khatoon, arul that she could mot be foun d after search in the night. he has stated tat there was antinosl ity with the family of Suler nan Ansari as her alder son Siray Ansari had Ne arried daughter of Suleman Arpsari against her wishes, and that they were on litigating terms before murder of tmrana Khatoon. in her cross-examination she has

stated that Julekha Nhatoon: had fied a criminal cas« against her

family members before the occurrence and her husband had also lodved. a.case against Suleman Ansari, Atabul, Anwar and others for abduction. af her son. PW6-Md. Tabaragtie Ansari is a co-villager, ane ¢ lose. relative. of the informant. He has stated in the Court that about 2: 30 AM in the night the informant came to his house and inforrned him that his daughter was abducted by Tabul Ansari, Viash Ansari, Karu Ansari, Suweman Ansari, Mangan Ansari and Anwar Ansari. He accompanied him in search of imrana Khatoon who, however, could rot be found and in the morning her dead body was seen in the well of Suleman Ansari. in

AIS crogs-exarmination he has adriitied that dulekha Khatoon had

sda dowry case in which he was also made an accused. The niormant who was examined as FW? has stated in the Court that afer preparing dish in the house of Md. Rafigue when he came back home at around 01:00-02:00 AM his son narrated the emire

episade to him arul told him thar Tabul Ansan, Suleman Ansari,

aru Ansari, Vilash Ansari, Mangan Ansari and Anwar Ansari put

oW1 in the mouth of Imrana Khatoon and abchucted her.

1g Sedenkrtad Append QRH} No. GIB of BOM WED

Thereafter he informed his uncle, namely, Md. Tabaraque Ansari

and tried to search for his daughter but she could not be found and next day morning hulle was raised in the village that a dead body was found in the well of Suleman Ansari. His cross-

xamdnation was also primarily revolving around dispute with the

family of Suleman Ansari i and criminal cases filed by them against

each other.

is. There appears consistency in the evidence of these

witnesses who have sufficiently supported the child witness on the core of the prosecution case that Atabul @ Tabla @ Tabul Ansar, Suleman Ansari, Karu Ansari, Anwar Ansari, Mangan Ansari ard

YPy i

Vilash Arar owere involved in abductiom af fmrana Nhatoan. Scorn

after the occurrence, this information was given by PWS to his father who then immediately went to the house of PW6 and formed him about abduction of his daughter. The statement of PW that his son informer him about abduction when he came hack home and the statement of PW6 that in the night PW? carne and informed him about abduction of his daughter by these ancused are admissible under section 157 of the Code of Criminal Procedure and provides corroboration to his evidence.

iS. The accused have set up a specific defence that the informarit or anyone of his family members was not aware how and when Imrana Khatoon went missing frorm the house and in the morning when they could know about death of his daughter, after

cue deHberations the appellants were implicated due to previous enmity. To elaborate upon this defence of the appellants, Mr. Arnit ®urnar Das, the learned counsel has contenne qd that the striking time gap in the evidence of PWS and PW7 as regards when PW left home for making dish and at what time PWS acc companied lyrana

Khatoon to Bahivar to answer nature's call would lead to only such

cONCUsION,

2G. While appreciating a plea of contradiction im the evidence of a witness the Court is required to take into cansideration whether the contradictions and omissions are of such magnitude that these would materially affect credibility af the

vitness, It is well-settled that in the evidence of prosecution

i Urkeinal Appeal Dp No, BW of LE ee

wWiltesses some inconsistencies, exaggerations, improvements omissions and embellishments are bournd to happen and on the ground of minor lapses in the testimony of a witness his evidence

cannot he discarded it fata. The prosesution evicience

Hstanding muner inconsistencies inspires confidence af the Ceurt. The statement of PWY in the crosa-examination that around

<30 AM he left home for making dish and came back home about ome and Ralf hours thereafter has been over-stretched to conten that there is great variation between the statement of PWS and PWY regarding the time when PWY left home fur the house of Ma. Rahicnie, but we fi ind that this variation in no way affects the

prosecution case ~ 2 after all test imony of & wwitne aS iB nol weighed

with any mathem atical tool, There is discrepancy i inthe evidence of e WS" cand PW? but - the ap pellants' defence seems hughly

'probable. The abduction. of imrana Khatoan in: the night of

June 2008 became known to 'the informant when he came back home and this fact is corroborated Py t the evidence of PW6 who has said that PWY came to his house in the mMeht and informed him about, abduction of his daughter by Suleman Ansari and other five. ai. 3 | * The condu uet ¢ of the prosecution Withiceses, who in spite

ay " knowir ng name oF the abductors did not. TAISe hua Haj in. the village

has heen. debate lt is -éantende ad that

2. umpeach. their ere

enmity betwe ett: the "part ies is. adm tted a and ace ording to PWS he tala his father inv olvement of Suleman Ansari, still, family of j victim girl did mot raise Audia which creates doubt on the ution case that the informant had gone for search of his xter in the night,

& child who has witnessed abduction of his sister by Suleman Ansari with whom his family was on Ht Higating terms may not raise cries cue to fear for his own life. The conduct of a witness iS €XamMIned In the context of facts and circumstances of the case amd if is almost impossible to predict reaction of a person, far

different persons may react differently in similar situations. If is

Brgy ate ba gee Rte Toa

merely because conduct of a witness may appear

unnatural his testimory cannot be discarded. In "Rana Partay v,

3 Hebmiiak Append HR Ao. 830 of KOLO week

Criminal Appral WN Ne. 282 of 2085

"the Hon'ble Suprem e Court has observed that

marmer ig to - appreciate evidence in a wholly unrealistic and

tek bed

urimarinative way. The informant was informed about abduction of his daughter by Suleman Ansari and others when he came back

hame ard soot thereafter he started search for his daughter with

PWS, Normally a person would first approach his relative in such s

aituation which che informant did, and nothing much can be 3 SS

inferred from conduct of the informant in not raising hulla.

PEs a 3 ~ a . at t wht :

we in fdo.-Ram ov. State of Haryare the Hon'ble Supren e Court: has observed as under t 1 Court shaliqiave to bear in mind th aig diferent WHNHESses :

K srangy ada differant shuabcrs - wheres S same Secu :

& mee Bore stad: eating. i AWE: SiMe ¢ : there 1 run away fran? ihe :

Re d yet there ame Some who may come forward wilh COUNRgS, :

wonviot 'on & any ballet Nat thew APNG ah ould be muneiod. AS. a ater: of fant # denerds: upon individuals cand individuws, There cannof be any set patters ar udhhonn ful of human reaction and jo discanya piece of evidence on fhe grournd of fus reaction nol falling witht ina set

palteny} is unproduchye and 2 ped: SIG exeLISe,"

ah. Years after "Leel a Ren ™) the Hon'ble Supreme Court

has expressed similar views in- "Leh Kamlakar Patil v. State of

Bb x odes gone BEE Naa Maharashtra' thus °

Q g :

g g g

Pe ta _ "36, .... if ia vind ihaf seifnesses fo ceriain onares«may fun away ~ : from f he.agene and may a! isc leave Ihe plane due te fear and Y there awannnationg Ths. etinn may shuld pot be Pegoonen has. keep in mury iat cnferent 8 ferently inder : diferent situations. ¢ SOME WHNESSOS et a show , Ste Gecogie. perversd, same sian walling and Sar

LI AWE from dhe snene and yet ome who have {ihe courage and

LEg

ay GOR ston COMI en either fo lodge an FIR. or get themselves : exaonred inyrediafely, Thus, dof iNers from individuals for InRIduAIR. ma THEIR CSUNRN De iformity in a aman reaction. Wide the said pringinte has io be kept in mind, fig aise fa be bome in muna thal if ; ihe conduct of the winass is su unnaturél and bs nolan acoard wilh

acgeplatis Ayman behaviour allowing venations, then fis testimony sacamnes questionable and is likely fo be discarded."

aS. A doubt is raised on identification of the abducters on the ground that PWS is not consistent on his stand regarding

leht. The learned counsel for the appellants weuld refer

gaures: of

fa statement of PWS recorded under section 161 of the Code ol

yinal Procedure whereunder he has stated that he was carrying

he saw the

pege:

a tourceh whereas in the Court he has said that

abductors in the lantern light which he was carrying. In his crosa-

x :

y :

3 neinainel Appeal [DR) He. AME of 2020 ith Orbetast PRO ER Nes BES ef ORG

examination, PWS was not confronted with his previous statement

that he was car rying tourch and that he had infermed the ivestigang officer about the same. The abductors were not

they were known to him ~ they petonged tm the

4, aes nA i a ea on oy m4 & ~y ov a oe feng net "

<2 v4

SAME "village. tn "Nath Yadav v. State af Bihar?) the Han'ble

Supreme Court has observed that the other factors while fudging whether the witnesses could have had enough yiaibiity to eorrectly

identify the BOCs sed Have to be barne in mind. Whether r PWS was

eying a taurch oF a lantern is not relevant and what is important

ia that he could have and, in fact, Seer the abductear

a8, The Tale plank of the pr osecution to prove the charge

af mrarder ig that imran. Khatoon was last seen alive by his

Pere.

ner In the Bahiyar from: awhere she was < abducted by the accused and carly next morning ahe was found dead. ee An order of conviction for murder can be recorded } if the

prosecnian establishes that the victim was last seen alive with ©

gecused and there are ot ther independent incriminating eireumstances available on recor a whic +4 the accused has failed to explain satisfactorily ard all taken together complete t the chain of circus! LANCES. |

ao in "Ke nheiya Lal v, State of Raj jasthan'"? the Hon'ble

Suprenic Court has. Q observed AS under... ot

"Azo: The CHR rnstance- oF jae f seen 1g agether wtoes not by B teat and fy fead foie rferance thar it was the ace used wiht

commited the orivis. There must be somelivng mare Hora nishhng PE comrectiaty behesen ihe accused ead ite one, Mere nor

anplansvon on the par of the appellant, if OMY Gore sidered opinion: DY iealf cannot lead fo proc? of guilt against the appellant"

au. The circumstance that the appel Yants abducted Imrana Shatoon is highhy incriminating and if this circumstance ig provec

yy ogen and reliable eviderice a grave suspicion would arise on

eomplicity of the appellants in the crime. In law there would be & sresunnption againat the appellants fit ie shown that abduction of trerana Khatoon was with criminal intent and the burden to rebut fhe same would He on the appetiants to prove the conlrary. The

sms with the family of the informant

} 4 Criminal Appead LON} Ne. Sa6 af SS with Sxndaat Spoent {NEI Neo. Whe of BOI

- the primary reason for that was matrimonial discord benween daughter of Suleman Ansari and the infermant. In the night when a muri piriis alklunted by putting cloth in her mouth an intention fo cause Harm to her nan be easily inferred. Mr. Amit Kumar Da

the learned counsel for the appellants has contended that the mdical eviderme that the time of death was between 24 to 26 hrs. from postmortem examination which was conducted the next day at about 04:10 PM does not satisfy the proximity test and for that

reason also an inference on cornplicity of the appellants in murder

rere

af imrana Rhatoon cannot be drawn. In "Bodhray v. State of J&NX°" the Hon'ble Supreme Court has observed that ' 'proximity test" is a usehal gui ide Lo. find out invelvernert of an accused in the crime. [f was held that Ww her e the time gap between the point of time when the victira was last seen alive with 4 the accused and when she was ound. dead is so srriall that chances of any other person other than the accused committing the crime becomes remote the last scen theary becornes credible. |

30. The estimation by 3 doc tor about time of death of a person would a s be Ute approdimate time and not unerrin aly precise, A doctor renders. opinion om the basis of the clinical SXAMUNALLO a of the dead body and at that very ry moment he has no hetp af ary sei fer! tific test/report. Phe s visual observation about vital organs of a person is the onby guide t to him: and, therefore, a precise me of death of a person cannot be ascertained at the time of postmortem examination. Nariman, J. has observed that the evidence of a medical man or other skilled witnesses, however, eminent, as te what he thinks may ar may not have taken place

under particular combination af cireumstances, however,

confidently. he may speak, is ordinarily a matter of mere e opimion

The autopsy over dead body of Imrana Khatoon was

. Dieviiay Kumar on 02.06.2008, The postmortem report

was haid in evidence through PW who has informed the Court that

fenitel

fA I) AANe +F OM LOE SOO Fe

Digvyey Ruriar had passed away. He has

"Sentosa ' identified signatures of Dr. Disvyay Kumar and the Chief Mediral

Rei OS WR Cr pone

13 Uriasiual Appest BO) No. RAG af BOTS ke

Officer. The pastmeortem report discloses a cut infury af the size of "finches x 1% Inch", deep upto surface of vertebral onliumn

cutting across the thrast below the level of Larynx. The doctor has

rendered an opinion that the death eceurred about 34 ta 36 hrs.

before the postrerten eSamlination, which appears to have beer

ooh wee

comdueted around 04:10 PM on O2.06.2008, In our opinion, th

catimation of time of death of imrana Khatoon by the doctor does

wet contradict the prosecution PASE, TALNED Supports it and satiaies

Se, The learned APB would submit that due te strained relationship with the a ac sed "the. informant and his Tanly

und fer con stant t thr eat and le

members wer

the acctised | had lodged cas se agal inst 'the: informa mt. The learried. APPs warded further submit that the withesses have Seen meck injury en Imrana Khatoon and the dead body was found in the well of Suleman Ansari and while so the accused must explain Une highly incriminating circumstance which PAUSES grave suspicion on their inv olvernes nino. murder of lmrana Khatoon.

33. in "Rejender - v, St ate ANCT of Delhi the Hon'ble

RRS held that when the accused oes not throw

ole ally within Ais: knowledge the

-xplaination as an

additional

the chain of incriminating

nee Hs, # & Person is jast seen with he

deceased Ae A exp ation & fo how and whe Ae Pated compar ny z

nased. {2 oper worda. fe must rornish &? axpianaiior mare fo ihe court fo he drakehle and Salistsctory and ¥ he Ofer such an as planation an the basis of fects within Als

ture, Spee! Keawiodge. fie hurvien cass Ube ff fim urer Section 188 is

Aol discharges. Partio uiaely Ht 2aSeS resting an cirumestantig! evidence, # ie accuses Y fais fo offer feassornve EXpIARatON a dischaye of he burden digced an Aen, such lature fy its seit Can

Droy "de AM. Sudiliona! Lek by He oc Ghat oF oltnenets BRACES Proves agaist fim. This, however does not iesan that Section 106 ahiiis fhe nantes af osoof pf a onary iad ap fhe accused Such uray ayy

aWayE Ne SSIS OF Ihe prosecution. Section 198 only igys dawn Boe rele

eee

ial wher the accused GOSS Rot farcaw any fight upan Rots whiew = sre Spsclaly aHO Aladin fy nawledgs and which cannot SUEDE aris Meo or f hypothesi cunoanive wiih pie innowence, iS court can

Consider Ae Rune jo acauce sn explanation a8 an additional Bik

WHO COMpIias fhe chain of non) minading ofcumatances."

Ina N SS

om, c,

Seinaaat Agpect {98} Fo- BHF af BOW

wth Exhmindd Apewel [AR Bp. B62 OF BBW

as, he attending circurnstances and the manner ol

abduction of Imrana Khatoon clearly indicate iivolyement of the appellants along with athers in her murder. The circumstance that the dead beady of Imrana Khatoon was found in the well of Suleman Ansari by itself may not have been an incriminating cir clmishanics, mut in the present case since her abduction by the appellants 1s

{ renovery of dead body from the well of Suleman Ansari

ees.

BPO FEO

would be another incriminating circumstance © against the appellants who were iavolved in abduction of Imrana Khatoon. PWS has named the appellants and identified them along with others as the : abd uctors. Now the' appellants 5 are required im law to cell as to wh at they aid with. imra aa Khatoon ater her abduction. in. "State of Wie wu Mir Mohan uma Gmar®"* 6 the: Hon! 'ble Supreme

aurt thas ohse eryed that AN inference can be drawn agaimat an

nee

abductors s that they have cas used death and if this is not factually

correct aniy the abductors rou) id know about it

36. tn "Atir Moharurad Omar the Hon 'ple Supreme: C ourt

has held as uricier

"36. in tho orasen? case, "ihe. facts which tha peseculion. proved inolueing ihe proclauned: iotentioan of the accused, when considered " fy fhe fig phi of ihe prorimly of ime within which ihe wiclit sustained

_ fatal infurisa-arid: the promimily of. ie. place wittin whieh the deed

~~ bodly was found ere "'enaugh fo draw an inference Baby tin's death

wascausad by the same abductors. Bf any deviation from the aforese oe faotus! S. rect only fhe

noewe.. would) Pave. AGENT GCIs > BRIUCIOES yee cavialion woud have

HE ADOBE abouts. Dec SESH CSNSCINY W Shin digi knowlndge. As they refused to state such fants, foe iNeraice wand sland. undishubed."

TP. The prosecution evidence is that around midnight imrana Khatoon was abducted and next day car ty morning her dead bedy was found in the well of Suleman Ansari. Tt was an aeustial time in the night to leave hame and imrana Khatoon was not accompanied by her slid ier brother whe was sleeping in the house. A plea that Suleman Ansari would not have disposed of dead body in his own well can aiso he urged, but these issues would take a back-seat because the testimony of the child witness ce reliable and trustworthy. Though if is not necessary for the aceuser to establish his innocence and burden to prove iis case

en the prosecution, the ace used must put forth 2

acceptable exple anation to the prosecution evidence

CML Sppenrd LAG} Ne. RAG af VQ with Sehnived Appel (FR No, BH2 of BGG

howsoever weak it may be. The appellants have not put forth any infervening cirourmetance which would suggest Invelvernent of any ather person and time of death as estimated by Dr. Digviyay Kumar

dees not contradict the prosecution story about abduction and murder of Imrana Khatoon in the night of 01.06.2008. The appellants have set wp a defence of enmity which in the facts of the case may cut both ways. What really transpired in the mind of the killers is mot possible to decipher and any attempt to do so would be like travelling in the realm of conjectures and surmises, But the prosecution case that the strained relationship between daughter of Suiermari Ansar and son of the informant on account of which the fami Hes: have & filed. criminal cases. again nal each other was the

the. appel Hants have murder ed daught ter of f the informant

sstance. AL the prosecution witnesses were examined eae ediately alter dead body o i imrana Khatoorn was rec overed. The oo vill lagers seem to have: been: won over by the accused and they ave not supported the ; prosecution in the Court, though in course of investigation they had p provided valuable clue and information to

the police, The informant, chia wie and son have, hawever,

reiterated in the Court the statements which they had give n before

the police. Even, theugh a child, PWS has remained firm to his statement that the appellant sand other three. came: to Bahivar and

abduetedd his al ste r *

S&. In a catena af jud ements. the Hon'ble Supreme Court

has held that the circumstances relied upon by the prosecution to prove a charge of ovurder must be of definite character and we record that the ewdence on last seen together is cagent and convincing. The other cirournstances are also proved beyorie reasonable doubt and the chain of clreumstances is camplete.

38, in a cfintinal trial impertance of production af the weapon, blood-stained sotl and cloths and PSL/DNA repart cannot be undermined but it is not necessary that absence thereef would

tose facto affect the trial. In "Bakesh ve. State af UP" the Hon'

med.

ale

Supreme Court has held that production of the crime weapon is

nat a sine gua mon for conviction in a murder case. A plea was

Ceketinal Sppoat [Ry Wo. Aa! af BVO witk Lybuleadl Augvel NOs No. BH of BORD

raised an behalf of the accused that there are too many chinks in

the prosecution case which only the investi: gating officer could have

"ie

explained, and the lacunae in the prosecution case strike at the

root of its case. No witness has seen how and where Imrana

Khatoon was rmhirdered. These facts were within exchisive

xnewledge of the accused and it was almost tmpossible for the

mvestigating officer to unearth these facts, In our opinion, in the

present case absence of the aforesaid material evidence which

of the prosecution to connect the

hos

have also core in alc

maecd with oh

a wt

s crime is not fatal for the prosecution. lt is true

that sors of the Jamil: members: af. Inorana Khateon were nat

examined ¢ during the trial ara in absence of the i Investig gatine officer

the -gAME ca Tot be found. St

oe to bean arg urnent in

desperation. There is noun iv er sal | iaw that in every case Inowhich

the Investigating officer - ot examined prejudice woul d be ca

ae Lt:

Ue wy i

fe the accused. PWS is the only / per 'sen who has seen abduc tion of the ne > af 01.06.2008 and, therefore, xnon-

her STR A sister would notweaken the

appell Tits.

vif Pras sad vo. State of Bihar'! the Hon'ble

observe ed a s unde er

SSD. Osada etees We gay eisd indicate hor hee De correct in confer TASS if an investigating © ARCG® is et exaonned if 8 Case, SUCH Ose shotdd ial on the aroun hal the gecused were deprived of fe Qeporty nity fo ofectively cross-axaniine Me witheeses for ie PFOSEOUNO 8nd fo bring out conirediotions in ier arene nts bafore ihe poline A case of prenecice lkaly to be sulferad by an accused

e Byes x 2 3 " oe musi decend oa the facts ¢ f fhe seme end no woke weal sinwiyeckat formal Sirs fy be isid dows thal sar-esanostion of investigadgag ON '. As 7 "

GY ? Se vitstes a oviminal wisi oo.

In Sessions Trial Case No. 37 af S009 / 40) of 2O0G

the 3 MEAN

total,

mied ist Additional District and Sessions Judge, Grodda has hele

"28. i is upfortunaie # Aue, irosana Khafocy: ter ARS bul fee ono fe és whether fhe accused PEsans are response for 'fer death and grosecuion Aas bean

aie (GO prove de case beyond all "maasonable dou, Fronp ihe

z eviderice oe of winesses-Sakir Aansan (PE 5}. Nazam Ansan (PMT) APA YGUE Ansar Y {PYVE) If appears i at incident had faken plawe a! aftund ovdnight, in the inferve ng mght of IA 08 whe Me in sormanit Nezarn Ansar was no of preset at Ais Aa and fus son Sakir Ansan hed gone fo Gshivaron ie calf of sshure

L- the allegation of

g $ g g

i 9 Crosland Aggent {WG Na, HR of ROTR with ful Apel IER Ro, RAS af 20

and the cee saaed imimana Khafoan was accernpanying fa Als

deces ASE iran Kiats oF and fer dead body was fished out & miomung Jrom fhe wel of the scoused Suleman oF death is BaTCAING & ¥HP CHOulsiances

brokh Sake Arwarl fis wortiyid fo nofe Aere fhef af a at fane

ihe ¢ SS Sabir An IRAT WAS aged d aboul 8 yours and # appears : & be afural ihat a chil id who is aged about § yoore nan ae ge 4 cH sent de oF hig house in fee midnight, As per proseciuiion nase he rafardefy the accused bersans fook away fo re

Ansan Th g ne Sd Gauge

of ina' seen evider CG, or eal his very significant i ihe frasen! Lase é 8 he de fyana Kbaloon was aiminated

when She wus faken away Oy ie fact her dead body was fished out

y. i Aave gone ive sag ihe whole evidence of gr ae Suh? as

i defen 8 but ins He Of ory best endear our 7 oie nat find art aries convincing reason fo dishallove the evidenoe of sary (WS) . Nazam An aH BPW and Mad. Tabarague an FP) Evidence of hase wilesars appears to be natural frusiwortiscand free fon ay vitaat inf niiiy and in py ponside reu anon oviaariog of hese wiinagses gives ning of fut ar VOW Srosecuiion Aas firmly astebiished saor ofan. immstar HNGAING i > and ofearistances entahiishacd Grasecutan forming a compele chain of events Hresisible conclusion that diese sre the accused Parsons AB bag Ansan, Suleman Ansay and Nary Ansan wh camontied murnier of fe Paz her sf ed Body ave ihe: SCPpening

as iam legal purishment with GRING Ho roar f any we ? 3 >

oiher Aypothesis and facis and oir lances estahtished by te

By; :

EXOSOCUHES) Ae qe econsisignt wilh Me Ay pothe sis of fre gant of fie accuser persotia snd inconsistent! with Meir P MOCENICS

Re. io ihe aforesakt Jects andl circumstances Pendng given 2 and deapest consideration of ihe evidence placed an the

aise Sonfentions raised af Bar i ant of the coRiarsd fhe prosecution has led Positive, convinaly 2g and crecifle

Ocular evidence fo prove the part Hoipagtion of fie ancisdd persons in aoe of murder of deceased imtana Afaioan aad stony disciogad by ifie proseoution wifresses sirkes fe he genuine aad | See fing of froth in the evlance of Prosecution witnesses and f aay of . fared hat prosecution Aaa fed cogent, releble and jo f bring FROME Charge Uys 30SG4 snd frat he a couse REHSONS Hariely Anger! ar ied Kary ansan and in wew of he acoused pe erst rs Atabul Aasar Six Lins 38838 and fF SO104 of Me IRE | and » AF ihe inree BCCUSEM PSYSOMS are "4 see ube ? tial case may ba

y pon of SEHHEHOS. & Cas of

270 for Peariray on 8 pan sent back fo pal fil the date feed"

"tn

HEPAGRASY 3 i aout ned Fe FOP 2G.

freoted fo put ine c

ity

of senfesiog. Al! fhe | ue

The learned trial ch udge has appreciated the prosecution

eape

-THarmer and righth held that the te estimony of

IWS ae

relable and trushe, orthy. We see no reason to differ

earned trial Jue

tye

aforesaid | indings arrived at by the

yam inating CIcLum stance:

ast seen together,

mm the well of Suleman Ansart, homicidal

and enmity

ition by leading cogent evidence and the

f > Oy Ve Ckeatnal Apprai FUSE Ra, SSB of BGG WEE

chain of circumstances is so complete as to lead to ar: inescapable eonclusion that the appellants were invelved in abduction and

trurder of Iimrana Kiistoan.

43. Accordingly, Criminal Appeal (98) Ne. 850 of 2010 and Criminal Appeal (OR) No. 262 of 2010 are dismissed.

Gq, The learned APPs have informed ths Court that ths

appellants, namely, Suleman Ansari, Atabul @ Tabla @ Tabu

Ansari and Karu Ansari @ Ralimuddin Ansari are on bad.

4S. Accordingly, the bail-bonds furnished by the appellants namely, Suleman Ansari jin Criminal Appeal (9B) No. S30 of 20 101 and Atabul @ Tabla @ Tabul Ansari and Karu Ansari @ Kalirmuddin Ansari (un Criminal Appeal (DR) No. 262 of 2010) are cancelled. 'They shall surrender to serve the remaining sentences,

udg gment shall be sent to the concerned

46, A copy of the

' 'vor *

Ton ltk

Jail Superintendent, and the Court concerned for neceasary achioari. ay. Let the lewer Court records be seni to ths Crmart concerned forthwith,

Patti

we ay yA (Shree Chandrashekha na a vs : Nd, f °

(Rainal kor B hengra, 3.)