Jharkhand High Court
Firoj Ansari vs The State Of Jharkhand on 6 December, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 785 of 2015
Firoj Ansari, s/o Late Yasin Ansari of village-Chutupalu, PO-Chutupalu, PS-
Ormanjhi, District-Ranchi ............. Appellant
Versus
The State of Jharkhand ... Respondent
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant : Mr. Manoj Kumar, Advocate
Mr. Sunil Singh, Advocate
For the State : Mrs.Vandana Bharti, APP
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Order No.5/Dated: 6th December 2022
I.A. No.5858 of 2017
By an order dated 13th October 2022 passed by Hon'ble the
Chief Justice on the administrative side, this application has been assigned
to this Bench.
2. This is second attempt by the appellant seeking suspension of
sentence awarded to him in Sessions Trial No.844 of 2013, during pendency
of Criminal Appeal (DB) No.785 of 2015.
3. By an order dated 12th May 2016, I.A No.2298 of 2016 filed on
behalf of the appellant has been dismissed in the following terms:
"Interlocutory Application Nos. 2821 of 2016, 2997 of 2016 and
2996 of 2016 filed in Cr.A.(DB) No. 716 of 2015, 819 of 2015 and
803 of 2015 respectively are dismissed as not pressed.
I.A.No.2998 of 2016 has been filed in Cr. Appeal (D.B.) No. 785 of
2015 on behalf of appellant namely Firoz Ansari for grant of bail
and suspension of sentence.
It is submitted that the story narrated by deceased in her fard-
beyan which has now been considered as dying declaration does
not find support from the evidence of doctor. She did not have burn
injury on her back rather, burn injury was found in front portion
and that can only be possible when a person would commit suicide.
As a matter of fact, deceased in order to implicate and also to take
revenge, named the appellant and other coconvicts.
Learned A.P.P. opposed the arguments and submitted that the fard-
beyan of deceased has now been considered as dying declaration
and that fard-beyan was recorded by P.W. 11 in presence of P.W.10.
The witnesses examined have proved the fardbeyan of deceased.
Considering the evidence and the allegation, we do not feel
inclined to give benefit of Section 389(1) of the Code of Criminal
Procedure to the appellant namely Firoz Ansari and, accordingly,
his prayer for bail stands rejected.
Interlocutory Application No. 2998 of 2016 is hereby disposed of."
4. Mrs. Vandana Bharti, the learned APP has opposed the prayer
for suspension of sentence.
5. Ormanjhi PS Case No.02 of 2006 was lodged against Hayat Ali
Ansari, Firoj Ansari, Ramesh Sahu and Jakir Ansari under sections 307, 326
r/w section 34 of the Indian Penal Code (in short, IPC), on the basis of
fardbeyan of Poonam Toppo.
6. The informant whose fardbeyan was recorded on 4th January
2006 succumbed to the burn injury on 21st January 2006.
7. After the investigation, the police submitted Final Form under
section 309 IPC but the Court took cognizance of the offence under
section 302 IPC. In the trial, the prosecution examined 12 witnesses in
support of the charge of murder against the appellant and other three
accused. It further appears that the accused tendered evidence through
3 witnesses who supported the plea of alibi set up on behalf of Ramesh Sahu
and Firoj Ansari. DW3 who is the wife of Md. Jakir Ansari came in the dock
to depose that she along with her husband went to Ormanjhi PS and lodged
a First Information Report vide Ormanjhi PS Case No.1 of 2006 against the
informant.
8. The learned Addl. Judicial Commissioner-XVIII, Ranchi
referred to the judgments of the Hon'ble Supreme Court in "Laxman v. State
of Maharashtra" (2002) 6 SCC 710, "Paniben (Smt.) v. State of Gujarat"
(1992) 2 SCC 474 and"Kushal Rao v. State of Bombay" AIR 1958 SC 22 to
hold that fardbeyan of the deceased falls under section 32 of the Indian
Evidence Act and the same has to be treated as her dying declaration.
9. Dr. Chandra Shekhar Prasad who was examined as PW 9 has
tendered evidence in the trial as under:
"General:
I. The body was average built, rigor mortis was present all over the
body, abdomen was distended. The burnt areas were bandaged.
II. Dermo epidermal burn involving front part of chest and
abdomen, right upper limb, medial side of left forearm and palm,
both lower limbs except feet. The burn areas were infected at
places and there was evidence of healing at places.
Opinion:
I. Burn injuries were antemortem.
II. Death was due to burn and its complications.
III. Time since death was 6 hrs. to 24 hrs. from the time of P.M
Examination."
10. It is the case of the prosecution that statement of Poonam Toppo
was recorded in presence of Sri Sanjay Kumar, Block Development Officer
at Ormanjhi Block. This witness has made an endorsement on the fardbeyan
of Poonam Toppo that her statement was recorded in his presence. On that
basis, the learned trial Judge has held that Poonam Toppo was in a fit state
of mind to give statement.
11. Mr. Manoj Kumar, the learned counsel for the appellant has
raised a contention with reference to the medical evidence that the case
made out against the appellant at best can be under section 326 IPC or
section 307 IPC and not under section 302 IPC.
12. The aforesaid submission has been raised on the ground that
about 17 days after Poonam Toppo suffered burn injuries she has succumbed
to death and the doctor has rendered an opinion that the death was caused
due to burn and its complications.
13. It is stated that the appellant is in custody since 2 nd September
2015 and by now he has remained in judicial custody for more than 7 years.
14. Having regard to the aforesaid facts and circumstances in the
case, during the pendency of this appeal, the appellant, above named, shall
be released on bail on furnishing bail bond of Rs.10,000/-(Rupees Ten
Thousand) with two sureties of the like amount each to the satisfaction of
the Court concerned in Sessions Trial No.844 of 2013 arising out of
Ormanjhi PS Case No.02 of 2006, on the conditions that:
(i) he shall disclose his present address and mobile number to
the Investigating Officer of the case, and ;
(ii) he shall remain physically present or through his authorized
counsel in the Court whenever this criminal appeal listed for
hearing in the Court, however, if no one appears on his behalf
on the day when this criminal appeal is listed on Board for
hearing the State may file an application for recall of this order.
15. I.A No.5858 of 2017 stands allowed, in the aforesaid terms.
16. Let a copy of this order be transmitted to the Court concerned
and the concerned Jail Superintendent through "Fax".
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
sudhir
