Jharkhand High Court
Salauddin Ansari vs The State Of Jharkhand34 on 17 July, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 515 of 2011
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(Against the Judgment of conviction and order of sentence dated
19.07.2011 and 21.7.2011 respectively passed by the Sessions
Judge, Godda in S.T. No. 186 of 2010)
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Salauddin Ansari, son of Noor Mohammad Ansari, resident
of Village+ P.O. Lalghutwa, P.S. Lalmatiya, Dist. Godda.
... ... ... ... ...Appellant
-Versus-
The State of Jharkhand34 ... ...Respondent
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
For the Appellant : Mr. Jitendra Shankar Singh, Advocate
Mr. Ashish Kumar, Advocate.
For the State : Mrs.Vandana Bharti, A.P.P.
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C.A.V. on 05.07.2023 : Pronounced on 17.07.2023
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Per Subhash Chand, J.
The instant Criminal Appeal is directed against the
judgment of conviction dated 19.07.2011 and order of sentence
dated 21.07.2011 passed by the Sessions Judge, Godda in S.T.No.
186 of 2010 whereby the accused Salauddin Ansari was convicted
for the offence under Sections 302/307 of the Indian Penal Code
and 3 of the Explosive Substance Act and sentenced to undergo
rigorous imprisonment for life and to pay fine of Rs.10,000/- in
default to further undergo simple imprisonment for three months
under Section 302 of the Indian Penal Code. The appellant-
accused further sentenced to undergo rigorous imprisonment for
10 years and fine of Rs.5,000/- in default to undergo simple
imprisonment for three months under Section 307 of I.P.C. The
appellant-accused has also been sentenced to undergo rigorous
imprisonment for life and fine of Rs.10,000/- in default to
undergo simple imprisonment for three months under Section 3
of the Explosive Substance Act.
2. The brief facts leading to this Cr. Appeal are that the
informant Kalimuddin Ansari had given the written information
with the Police Station concerned Lalmatiya, District-Godda on
04.02.2010 with these allegations that his father had gone to
Lalmatiya market and came back from market to the house at 7
O'clock in the evening and he had brought with him a cock. The
informant and his younger brother Md. Tamijuddin Ansari both
were coking the cock in the courtyard of the house and his father
and mother both were sitting in the courtyard of the house
adjoining to the stair case. At the same time, a phone call came
on the mobile of the father of the informant from his brother. He
began to talk on the phone standing in the courtyard. In the
meantime, the accused Hurmuz Ansari, Lal Md. Ansari,
Salauddin Ansari, Jalal Ansari all sons of Majid Ansari, Irshad
Ansari son of Lal Md. Ansari, Salauddin Ansari, Safruddin Ansari,
Javir Ansari all the three sons of Noor Md. Ansari, Jakir Ansari,
Sakir Ansari, both sons of unknown, Gulam Ansari, all resident
of Lalgutwa, P.S. Lalmatiya, District-Godda, Salim Ansari,
Sherakaun all the thirteen persons came in the courtyard of the
house of the informant who were armed with deadly weapon
having scaled the west northern boundary wall of the courtyard
of the house of informant. Gulam Ansari had thrown a bomb over
the parents of the informant but same did not explode. Again
another bomb was thrown by Salauddin Ansari which hit on the
chest of the father of informant who fell down on the earth. All the
accused persons fled away. Within five minutes the father of
informant died. On account of the explosion of the bomb, the
smoke was in the whole of the courtyard. They cried and after
some time Police also came there. The accused persons had
caused this occurrence on account of old enmity. On this written
information, the Case Crime No. 11 of 2010 was registered against
all the thirteen named accused under sections 302/307 read with
34 of the I.P.C. and sections 3, 4, 5 of Explosive Substance Act
with the Police Station Boarijore (Lalmatiya), District-Godda.
3. The I.O. filed charge-sheet against accused Salauddin
Ansari for the offence under Sections 302 and 307 read with 34
of I.P.C., under Section 3,4,5 of Explosive Substance Act and the
investigation against rest of the accused was continued as stated
in the charge-sheet filed against Salauddin Ansari on 04.05.2010.
4. The Magistrate concerned took cognizance on the
charge-sheet and committed the file to the Court of Sessions
Judge, Godda for trial. The charge was framed against the
accused Salauddin Ansari under Section 302 read with 34,
Section 307 read with 34 of I.P.C. and Section 3 of Explosive
Substance Act. The charge was read over and explained to the
accused which the accused denied and claimed for trial.
5. On behalf of prosecution to prove the charge against
the accused Salauddin Ansari in oral evidence examined eight
witnesses P.W.1 Subhan Ansari, P.W.2 Ramijan Bibi, P.W. 3 Dr.
Rakesh Ranjan, P.W.4 Naresh Prasad Sinha, P.W.5 Dr. Satyendra
Mishra, P.W.6 Kalimuddin Ansari, P.W.7 Tamizuddin and P.W.8
Md. Mofuzuddin Ansari.
6. On behalf of prosecution in documentary evidence
adduced Injury report of injured Rajaman Nisa (Ext.1), seizure
memo (Ext.2), carbon copy of Inquest report (Ext.3), Sanction for
prosecution (Ext.4) Para 1 to 69 of case diary (Ext.5), requisition
sent for treatment of injured Rajaman Nisa, Fardbayan (Ext.7),
Case forwarding endorsement on Fardbayan (Ext.7/1), case
registration endorsement on Fardbayan (Ext. 7/2), Formal F.I.R.
(Ext.8) Postmortem report of Haffizuddin Ansari (Ext.9), signature
of Mofuzuddin Ansari on Inquest report (Ext. 3/1), pieces of
mobile, pieces of bangle and splinter (material Ext.1).
7. The statement of the accused was recorded under
Section 313 of Cr.P.C. who denied the incriminating circumstance
in evidence against him and told himself to be innocent and also
stated that the deceased used to make bomb himself.
8. In defence evidence adduced Ext. A certified copy of the
order dated 01.09.2009 in G.R. 527 of 2009/T.R. 1111/11, Ext.
B certified copy of Boarijore (Lalmatiya) P.S. Case No. 54 of 2009
and Ext. C- certified copy of charge-sheet of Lalmatiya P.S. Case
No. 54 of 2009 and no oral evidence in defence was adduced on
behalf of the accused.
9. The learned Trial Court after hearing the learned A.P.P.
for the State and learned Counsel of the accused passed the
judgment of conviction on 19.07.2011 against the accused
Salauddin Ansari under Sections 302/307 of I.P.C and Section 3
of Explosive Substance Act and sentenced vide order as stated
above.
10. Aggrieved from the impugned judgment of conviction
and sentence, this Cr. Appeal is preferred on behalf of appellant
Salauddin Ansari on the ground that the impugned judgment of
conviction and order of sentence passed by the court-below is bad
in the eye of law. The mode, manner and actual participation of
the appellant is not proved on the prosecution evidence. The trial
court has not appreciated the prosecution evidence in a proper
perspective. P.W. 6 and P.W. 7 who claimed himself to be eye-
witness have not stated regarding the involvement of the
appellant-convict in explosion of the bomb in their cross-
examination. The learned trial court did not appreciate this fact
that the deceased was himself a habitual criminal who used to
prepare the bomb and while preparing the same on account of the
explosion he died. The evidence of the prosecution witnesses is
contradictory to one another, therefore, prayed to set aside the
impugned judgment of conviction and sentence and to allow this
appeal. Consequently, to acquit the appellant from the charge
framed against him.
11. We have heard the learned Counsel for the appellant
and the learned A.P.P. on behalf of the State and perused the
material on record.
12. In order to decide the legality and propriety of the
impugned judgment of conviction and sentence the prosecution
evidence is required to be re-evaluated by this Court which is
reproduced here-in-below:
12. 1 P.W.1 Subhan Ansari in his Examination-in-chief says
that the occurrence was of six months ago at 6 p.m. Haffizuddin
had died. How he died he is not aware.
This witness was declared hostile on behalf of
prosecution and was cross-examined and he denied the
statement under Section 161 of Cr.P.C. given to the Investigating
Officer during investigation.
12. 2 P.W.2 Ramijan Bibi in her Examination-in-chief says
that the occurrence was of six months ago at 5 p.m. the old man,
who was in her adjoining house was murdered. How he was
murdered she is not aware. She heard the sound of bomb. This
witness was also declared hostile by the prosecution and cross-
examined and she denied in regard to the statement given to the
Investigating Officer during investigation under Section 161 of
Cr.P.C.
12. 3 P.W.3 Dr. Rakesh Ranjan in his Examination-in-chief
says that on 04.02.2010 on requisition of the Police, he examined
Riwan Nisa and found following injuries:
i. Multiple superficial abrasion with black
mark over left forearm. The age of injury was
within 1-2 hours caused by explosive
substances.
ii. This is the injury report prepared by me in
my handwriting and signature which I
identify which is marked Ext.1
12. 4 P.W.4- Naresh Prasad Sinha, the Investigating Officer
in his Examination-in-chief stated that on 04.02.2010 he took
over the investigation of Boarijore (Lalmatiya) P.S. Case No.
11/2010 and he recorded the re-statement of Kalimuddin Ansari
and also the statement of Tamizuddin Ansari, Rijwan Nisa,
Subhan Ansari, Ramijan Titi, Muzibur Rahman, Mofuzuddin
Ansari. He also inspected the place of occurrence and he also
prepared the seizure memo of the exploded bomb, piece of bangle,
broken mobile, the remains of the exploded bomb, splinters, piece
of wire. The seizure memo is in his handwriting and got the
signature of Rafique Ansari and Habibul Rahman on the seizure
memo. The seizure memo is marked Ext.2. The seized mobile,
piece of bangle and splinter were produced by this witness before
the court which was exhibited material Ext.1. He also prepared
the inquest report of deceased Haffizuddin Ansari which was in
his handwriting and signature. The witness of the same are
Mofuzuddin Ansari and Moziur Rahman and the inquest report is
marked Ext. 3. The prosecution sanction order was given to him
by Virendra Kumar Mishra, Commissioner, Godda marked Ext.4.
He prepared the charge-sheet against accused Salauddin Ansari
and filed the same before the Magistrate. He also exhibited the
para 1 to 69 of the case diary marked Ext. 5. The medical
examination report is in handwriting of Satyendra Sinha which
he received marked Ext.6. The fardbayan was written by Sub-
Inspector Rana Pratap Singh on his direction which was given by
Kalimuddin Ansari under his signature. He recognized the same
and marked Ext. 7. The endorsement on the fardbayan is marked
Ext. 7/2. The case was registered by Nodal Bhushan Minz on his
endorsement which is marked Ext. 7/2. The formal F.I.R. was also
prepared by Nodal Bhushan Minz which is marked Ext.8. In
cross-examination this witness says that he had received the
information on 04.02.2010 at 19:15 with the Police Station. The
Sanha of the same was registered at No. 99 dated 04.02.2010 at
22 hours. On account of the utter dark night, he inspected the
place of occurrence, prepared seizure memo on 05.02.2010. Ext.2
of bomb explosion certificate was prepared by him. No powder was
obtained. The blood stained soil were there. Several small pieces
were found by him at the place of occurrence. Bomb splinter was
also obtained from the injury of the deceased. No other material
was received from the house of deceased. The box of the bomb
was seized by him. The same was handed over to Bomb Disposal
Expert of which receipt was not made in the diary. It is wrong to
say that the deceased Haffizuddin Ansari died on account of the
explosion of the bomb while preparing bomb.
12.5 P.W.5 Dr. Satyendra Mishra, who conducted the post-
mortem of deceased, in his Examination-in-chief stated that on
05.02.2010 at 11:45 a.m. he conducted the post-mortem
examination on dead-body of Hafijuddin Ansari and found the
following ante-mortem injury:
i. Badly lacerated injury triangular in shape
with vertex pointing away from body.
Measuring 11"x 10" x 6" muscle deep. Over the
left infra memory region with abraded and
superficially burnt area surrounding. Foreign
bodies like wire, concrete materials were
present in the wound.
ii. Superficial burnt left ala of nose.
iii. Explosive injury 5"x 3"x muscle deep on the
inner aspect of left upper forearm with a wire.
All these injuries were caused by explosive
substances.
On dissection there was fracture of 4th to 7th ribs
on left side. Left semi thorax fell of blood. Hematoma
in the left lung. Heart was preformatted hence was
empty. Stomach contained partially digested rice,
dal and tomato.
Probable time since death within 24 hours.
In my opinion death was from haemorrhage and
shock resulting from the above injuries caused by
explosive substance.
This report is in his handwriting and bears the
signature which he identified marked Ext. 9. Such injuries are
possible if a person is attacked with bomb explosion.
In cross-examination this witness says that these
types of injuries are not possible if the deceased would have
prepared the bomb as in that case his hands will be first
affected. He cannot say whether the bomb exploded on the
ground or not but such injury was possible if the bomb is thrown
directly on the inner aspect of the hand. He did not find any
injury on the outer aspect of the left upper forearm.
12.6 P.W.6 Kalimuddin Ansari in his Examination-in-
chief says that the occurrence is of 04.02.2010 at 3:00 p.m.
Gulam Ansari had thrown bomb on Haffizuddin Ansari which did
not explode. Again Salauddin Ansari threw the bomb on
Haffizuddin Ansari which hit on the chest of Haffizuddin and
exploded. After 10 to 15 minutes Haffizuddin died. The bomb also
hit to his mother Rajaman Nisa in the hand and she sustained
injuries on her hand. The occurrence was in the courtyard of the
house of Haffizuddin Ansari. The fardbayan is in his signature
which was written by Police in his presence marked Ext. 7. He
recognized the accused Salauddin Ansari in the dock. In cross-
examination this witness says that the Police has recorded his
restatement on the very day of occurrence. He did not say to the
Police that the second bomb was thrown by Gulam Ansari which
exploded and injured to his father. His courtyard was 10 hand x
10 hand made of clay. The first bomb which was thrown in the
courtyard did not explode. The second bomb exploded.
12.7 P.W.7 Tamizuddin in his Examination-in-chief says
that the occurrence is of 04.02.2010 at 7 p.m. He was in the
courtyard along with his mother and father. First of all, Gulam
Ansari threw the bomb which did not explode. Again Salauddin
threw the bomb which exploded on the chest of his father. His
father died within 10 to 15 minutes. The bomb also hit to his
mother on her hand and she sustained injury. 12 to 13 persons
were along with the accused had hurled the bomb. He identified
Salauddin in the dock who threw the bomb. In cross-examination
this witness says that the night was dark. His courtyard was 4
hand x 4 hand. His house comprised four kothri. Two kothri were
in east and two were in west. He was cooking cock in the
courtyard. His father was talking on the mobile phone. Gulam
Ansari also threw the bomb but the same did not hit his father.
The house of Salauddin is at the distance of four houses from his
house. It is wrong to say that his father was preparing bomb and
while preparing bomb he died on account of explosion of the
bomb.
12.8 P.W.8 Md. Mofizuddin Ansari in his Examination-in-
chief says that one year ago in the night Haffizuddin died on
account of bomb explosion. Who threw the bomb he is not aware.
His statement was taken by the Police and he identified his
signature marked Ext. 3/1. The inquest report of the dead-body
was prepared in his presence.
13. The learned Counsel for the appellant has submitted
that the conviction of the appellant is based on testimony of P.W.6
and P.W.7. P.W. 6 is Kalimuddin Ansari and P.W.7 is Tamizuddin
and their statements are contradictory to each other. As per
prosecution case 13 persons intruded in the courtyard of the
house which is highly improbable as the courtyard was 10 hand
x 10 hand in view of the statement of P.W.6 Kalimuddin Ansari
while 4 hand x 4 hand in view of statement of Tamizuddin. The
I.O. filed charge-sheet against the sole appellant Salauddin
Ansari. The testimony of these two witnesses cannot be relied as
from the statement made by these witnesses in cross-
examination. The involvement of the appellant is not proved. Both
these two witnesses are the most interested witness as such their
testimony cannot be believed. No independent witness
corroborates the prosecution story. P.W.1 Subhan Ansari, P.W. 2
Ramijan Bibi have turned hostile. Both the two witnesses P.W.6
Kalimuddin P.W.7 Tamizuddin Ansari both have stated that the
bomb hit on the chest of the deceased Haffzuddin Ansari; while
there is no injury on the chest of deceased-Haffizuddin Ansari as
per postmortem report, therefore, the ocular evidence is not
corroborated with the medical evidence. It is also further
submitted that the trial court while holding the appellant guilty
for the offence under Section 302 and 307 of I.P.C. also gave
finding of commission of the murder of deceased in furtherance of
common intention. This finding is bad as there is nothing on
record with whom accused persons, the appellant Salauddin
committed the alleged offence of murder and attempt to murder
as well. It is also further contended by the learned Counsel for the
appellant that as per prosecution case the occurrence is of 7
O'clock of evening of 04.02.2010 while the question put to the
appellant-convict Salauddin Ansari under Section 313 of Cr.P.C.
in which the time of occurrence is shown 7 O'clock of morning.
The incriminating circumstance was not placed before the
appellant-accused while recording statement under Section 313
of the code of Criminal Procedure by the trial court which
prejudiced to the appellant and from the wrong statement under
Section 313 of Cr.P.C. as recorded by the trial court the whole
trial vitiated and the incriminating circumstance which was not
explained to the appellant-convict, the same cannot be used in
evidence against him. In support of his contention, learned
Counsel for the appellant relied upon the judgment dated
28.09.2020 rendered by the Hon'ble Apex Court in the case of
Maheshwar Tigga vrs. State of Jharkhand in Cr. Appeal No.
635 of 2020 (arising out of S.L.P. (Cr.) No.393 of 2020). The
relevant para of the said judgment reads as under:
"Para 9. It stands well settled that circumstances not
put to an accused under Section 313 Cr.P.C. cannot
be used against him, and must be excluded from
consideration. In a criminal trial, the importance of
the questions put to an accused are basic to the
principles of natural justice as it provides him the
opportunity not only to furnish his defence, but also
to explain the incriminating circumstances against
him. A probate defence raised by an accused is
sufficient to rebut the accusation without the
requirement of proof beyond reasonable doubt. This
Court, time and again, has emphasized the
importance of putting all relevant questions to an
accused under Section 313 Cr.P.C. In Naval Kishore
v. State of Bihar, (2004) 7 SCC 502, it was held to an
essential part of a fair trial observing as follows:
"5.....The questioning of the accused under Section
313 Cr.P.C. was done in the most unsatisfactory
manner. Under Section 313 Cr.P.C. the accused
should have been given opportunity to explain any of
the circumstances appearing in the evidence against
him. At least, the various items of evidence, which
had been produced by the prosecution, should have
been put to the accused in the form of questions and
he should have been given opportunity to give his
explanation. No such opportunity was given to the
accused in the instant case. We deprecate the
practice of putting the entire evidence against the
accused put together in a single question and giving
an opportunity to explain the same, as the accused
may not be in a position to give a rational and
intelligent explanation. The trial Judge should have
kept in mind the importance of giving an opportunity
to the accused to explain in adverse circumstances
in the evidence and the Section 313 examination
should not be carried out as an empty formality. It is
only after the entire evidence is unfurled the accused
would be in a position to articulate his defence and
to give explanation to the circumstances appearing
in evidence against him. Such an opportunity being
given to the accused is part of a fair trial and if it is
done in a slipshod manner, it may result in imperfect
appreciation of evidence......"
14. Per contra learned Addl. Public Prosecutor has
submitted that the impugned judgment of conviction and
sentence passed by the trial court does not bear any infirmity. The
prosecution case is well proved from the testimony of two eye-
witnesses P.W.6 Kalimuddin Ansari and P.W.7 Tamizuddin Ansari
whose presence cannot be disbelieved at the place of occurrence
keeping in view the time and the place of occurrence. Both the
two witnesses are natural witnesses keeping in view the time and
place of the occurrence. The testimony of independent witness
cannot be expected. This ocular witness also corroborated with
the medical evidence as per postmortem report. The injuries
which are shown on the body of deceased are very much near the
chest that is why the ribs of deceased had fractured on account
of explosion of bomb. Moreover, in inquest report also shown the
injury on the chest of deceased. The medical evidence is only
opinion, same cannot be prevailed upon the ocular evidence. So
far as the statement of accused under Section 313 of Cr.P.C. is
concerned though inadvertently the time is shown of morning
while in the F.I.R. of prosecution and in testimony of all the
witnesses time of occurrence is 7 O'clock of evening. Simply
mentioning the time of morning does not prejudice the appellant.
The appellant has failed to show how he was prejudiced from this
statement mentioning the time of occurrence of morning. Moreso
when in the evidence against him time of occurrence is of evening.
On this sole ground the whole of the prosecution case cannot be
discredited.
15. The prosecution case is based on direct evidence.
As per prosecution case the date of occurrence is 04.02.2010
at 7 O'clock of evening and place of occurrence is the
courtyard of the house of deceased. At the time of
occurrence, the deceased Haffizuddin Ansari his wife Riwan
Nisa and the two sons of the deceased P.W.6 Kalimuddin
Ansari and P.W.7 Tamizuddin Ansari were present in the
courtyard of the house of deceased. The Investigating Officer
has prepared the site plan of the place of occurrence though he
has not given the measurement of the courtyard of the house of
deceased. As per prosecution case thirteen persons came in the
courtyard of the house of deceased after having scaled the
boundary wall. The first bomb was thrown by Gulam Ansari which
did not explode and second bomb was thrown by Salauddin
Ansari which exploded and hit to the chest of deceased
Haffizuddin Ansari who died within 10 to 15 minutes on account
of sustaining injury caused on account of explosion of bomb. The
eye-witness of the occurrence are P.W.6 Kalimuddin Ansari and
P.W.7 Tamizuddin Ansari. The wife of deceased Riwan Nisa the
injured eye-witness was not examined on behalf of prosecution,
therefore, the charge proved against the accused persons as
held by the trial court is to be considered in view of the
evaluation of the testimony of P.W.6 Kalimuddin Ansari,
P.W.7 Tamizuddin Ansari and also the testimony of P.W.3 Dr.
Rakesh Ranjan who proved the injury report of Riwan Nisa
wife of deceased and also testimony of P.W.5 Dr. Satyendra
Mishra who conducted the postmortem of deceased as well
the testimony of Investigating Officer who were examined on
behalf of prosecution.
16. P.W.6 Kalimuddin Ansari, the eye witness in his
Examination-in-Chief specifically says that on 04.02.2010 at 8
p.m. Gulam Ansari hurled bomb on Haffizuddin which did not
explode. Thereafter Salauddin Ansari threw the bomb which
exploded on the chest of Haffizuddin and Haffizuddin died within
10 to 15 minutes. His mother Rajaman Nisa also sustained injury
on account of the explosion of bomb on her hands. This witness
proved the contents of the fardbayan Ext. 7. This witness also
stated in the fardbayan that at the time of occurrence while he
and his brother were cooking cock his father and mother were
sitting near the stair case in the courtyard and as the phone call
came to his father he began to talk on his mobile phone and at
the same time the first bomb was thrown by Gulam Ansari which
did not explode and the second bomb was thrown by Salauddin
Ansari which exploded and hit on the chest of his father
Haffizuddin Ansari. This witness says that after explosion of the
bomb all the other accused fled away. The courtyard of his house
was 10 hand x 10 hand. In cross examination the defence counsel
could not bring contrary conclusion as the statement made by
this witness in his Examination-in-chief proving the contents of
the fardbayan Ext.7 also.
17. P.W.7 Tamizuddin Ansari is also the eye-witness of
the occurrence. He is also the son of deceased. He was also
present at the place of occurrence. He stated that the occurrence
was of 04.02.2010 of 7 p.m. and in his courtyard his father and
mother both were present and Gulam Ansari threw the bomb
which did not explode. Salauddin Ansari threw the bomb which
hit on the chest of his father and within 10 to 15 minutes his
father died. The bomb was also hit to the hands of his mother.
This witness was also cross-examined though in cross-
examination he stated that the courtyard was 4 hand x 4 hand
but no contrary conclusion could be done from this witness by
the defence Counsel in the cross-examination. This witness also
stated that while he and his brother were cooking cock in the
courtyard, his father was talking nearby them on the mobile
phone while he was hit with the bomb which was thrown by
Salauddin Ansari. The bomb which was thrown by Gulam Ansari
did not explode. The witness P.W.6 Kalimuddin Ansari and
P.W.7 Tamizuddin Ansari both the witnesses have identified
the accused in the dock and have attributed role of throwing
the bomb which hit to their father causing death on the spot.
18. Though there is minor contradiction in the
testimony of these two witnesses which is not on material
point and which can be on account of perceiving the
occurrence by the witness but there is consonance in the
testimony of both the witnesses in regard to the occurrence
on the material points.
19. Though the injured eye-witness wife of deceased
was not examined on behalf of prosecution but as stated by the
eye-witness P.W.6 Kalimuddin Ansari and P.W. 7 Tamizuddin
Ansari that the wife of deceased also sustained hand injury on
account of explosion of the bomb is well proved from the
testimony of P.W.3 Dr. Rakesh Ranjan who has proved the
injury report of Riwan Nisa and found the following injury:
i. Multiple superficial abrasion with black
mark over left forearm. The age of injury
was within 1-2 hours caused by explosive
substances.
ii. This is the injury report prepared by me
in my handwriting and signature which I
identify which is marked Ext.1
Further the testimony of these two eye-witnesses
P.W.6 Kalimuddin Ansari and P.W.7 Tamizuddin is also
corroborated with the inquest report and medical evidence as
well. Both the eye-witnesses have stated that it was Salauddin
Ansari who threw the bomb and hit to their father Haffizuddin on
the chest. The inquest report is Ext. 3/1 which is proved by
P.W.4 Investigating Officer Naresh Prasad Sinha. In the
inquest report in column No.5 is shown the wound in the left
side of the chest in which splinter was also visible and another
injury was on the left elbow of the left hand and also in the left
wrist. The splinter was also visible and injury was also on the
nose. The postmortem report of deceased Haffizuddin Ansari
is proved by P.W.5 Dr. Satyendra Mishra. The witness found
the following ante-mortem injuries:
i. Badly lacerated injury triangular in shape
with vertex pointing away from body.
Measuring 11"x 10" x 6" muscle deep. Over
the left infra memory region with abraded
and superficially burnt area surrounding.
Foreign bodies like wire, concrete materials
were present in the wound.
ii. Superficial burnt left ala of nose.
iii. Explosive injury 5"x 3"x muscle deep on the
inner aspect of left upper forearm with a
wire
From the postmortem report which is proved by P.W.5
Dr. Satyendra Mishra as Ext.9. it is found that badly lacerated
injury was in triangle shape over the left infra memory region with
abraded and superficially burnt area surrounding. He also stated
that on dissection there was fracture of the 4th to 7th ribs on
the left side and it is stated that the cause of death was
seizure of haemorrhage and shock resulting from the above
injury caused by explosive substance. The testimony of this
witness in his cross-examination was also suggested question by
the defence Counsel and he replied that the injury which the
deceased had sustained were not possible to be caused while
preparing the bomb as in that case his hands will be first
affected. He did not find any injury on the outer aspect of the
left upper forearm of the deceased. This witness stated that the
injury which deceased had sustained were likely to be caused in
a attack with bomb explosion
Therefore the defence taken by the accused on
behalf of the appellant-convict that deceased died while
preparing the bomb is not supported with the testimony of
P.W.5 Dr. Satyendra Mishra who had proved the postmortem
report of deceased and stated that the injuries which the
deceased had sustained could not be caused while preparing
the bomb because it would have affected the hands firstly.
20. The testimony of P.W.6 Kalimuddin Ansari and
P.W.7 Tamizuddin Ansari which is corroborated with the
testimony of P.W.3 Dr. Rakesh Ranjan and P.W.5 Dr.
Satyendra Mishra as well is also corroborated with the
testimony of P.W.4 Naresh Prasad Sinha. This witness has
stated that he recorded the statement of witness Kalimuddin
Ansari and Tamizuddin Ansari and also recorded the statement
of Dr. Rakesh Ranjan and Dr. Satyendra Mishra as well. In cross-
examination there is nothing on record that the witness P.W.6
Kalimuddin Ansari P.W.7 Tamizuddin Ansari, P.W. 3 Dr. Rakesh
Ranjan, P.W.5 Dr. Satyendra Mishra what have stated in their
testimony was not in their statement recorded by the Investigating
Officer under Section 161 of Cr.P.C. The Investigating Officer has
also proved the seizure memo of the remains of the bomb, piece
of bangle, broken mobile and splinter wire. The splinter was also
brought out while conducting postmortem by the Doctor. This
seizure memo is proved as Ext. 2 by P.W. 5 Naresh Prasad
Sinha. The broken mobile, the piece of the mobile, piece of
the bangle, splinter were also produced by P.W.5 Naresh
Prasad Sinha during examination before the trial court and
proved them as material Ext.1. This seizure memo also
supports the testimony of the ocular evidence wherein it
came that the deceased was talking on mobile at the time of
attack made with the bomb by the appellant-convict
Salauddin Ansari. This witness also proved the inquest report of
deceased in which the wound and injuries also shown on the
chest of deceased.
21. The contention made by learned Counsel for the
appellant that the testimony of P.W.6 Kalimuddin Ansari and
P.W.7 Tamizuddin cannot be relied because they are the
interested witness is not sustainable because as per prosecution
case and evidence adduced on behalf of the prosecution the place
of occurrence is the courtyard of the house of deceased and both
the witnesses are the son of deceased. Both were present at the
time of occurrence along with their father and mother. The time
of occurrence is 7 O'clock of evening since the occurrence
was within the four walls of the courtyard of the house of
deceased. The presence of any independent witness at the
place of occurrence cannot be expected. Though both these
eye-witnesses are the sons of deceased, merely on this ground
of relation, their testimony cannot be discarded; rather their
testimonies is found cogent and reliable keeping in view their
presence at the place of occurrence in view of the time of
occurrence which is well corroborated with the testimony of
Investigating Officer. P.W. 4 Naresh Prasad Sinha and also the
testimony of P.W.3 Dr. Rakesh Ranjan and P.W.5 Dr.
Satyendra Mishra. The Hon'ble Apex Court held in
Gangabhavani vs Rayapati Venkat Reddy Cr. Law Journal
2013 (4) at 4618:
15. It is a settled legal proposition that the
evidence of closely related witnesses is
required to be carefully scrutinised and
appreciated before any conclusion is made to
rest upon it, regarding the convict/accused in
a given case. Thus, the evidence cannot be
disbelieved merely on the ground that the
witnesses are related to each other or to the
deceased. In case the evidence has a ring of
truth to it, is cogent, credible and
trustworthy, it can, and certainly should, be
relied upon.
22. The Hon'ble Court held in Ashok Kumar Choudhary
& ors. vs State of Bihar, A.I.R. 2008 Supreme Court 2436:
8. Insofar as the question of creditworthiness
of the evidence of relatives of the victim is
concerned, it is well settled that though the
court has to scrutinise such evidence with
greater care and caution but such evidence
cannot be discarded on the sole ground of
their interest in the prosecution. The
relationship per se does not affect the
credibility of a witness. Merely because a
witness happens to be a relative of the victim
of the crime, he/she cannot be characterised
as an "interested" witness. It is trite that the
term "interested" postulates that the person
concerned has some direct or indirect interest
in seeing that the accused is somehow or the
other convicted either because he had some
animus with the accused or for some other
oblique motive.
23. The Hon'ble Apex Court held in Ravishwar Manjhi &
ors. vs. State of Jharkhand AIR 2009 SC page 1262:
30. Out of seven eyewitnesses, PW 7 was not
believed by the courts below. PWs 4 and 5
were not present exactly at the place of
occurrence. They are said to have witnessed
only a part of the occurrence. All other
eyewitnesses were related to the deceased.
However, we do not hesitate to add that only
on that ground their evidences should not be
disbelieved.
24. The learned Counsel for the applicant also contended
that the remains of the bomb was sent for expert opinion.
Therefore, the conviction of the appellant cannot be sustained.
This submission of the learned Counsel for the appellant is not
sustainable since the prosecution case is based on ocular
evidence wherein the testimony of the two eye-witnesses whose
presence at the place of occurrence is not doubted and whose
testimony is found credible and cogent and is supported with
medical evidence as well, therefore, not sending of remains of the
exploded bomb cannot be said fatal to the prosecution case. The
Hon'ble Apex Court held in State of Punjab vrs. Hakam Singh,
2005 (7) SCC 408:
13. It was also pointed out by learned counsel
for the respondent that no firearms were
recovered and no seizure has been made of
empties. It would have been better if this was
done and it would have corroborated the
prosecution story. Seizure of the firearms and
recovering the empties and sending them for
examination by the ballistic expert would
have only corroborated the prosecution case
but by not sending them to the ballistic expert
in the present case is not fatal in view of the
categorical testimony of PW 3 about the whole
incident.
25. The submission of learned Counsel for the appellant
that the ocular evidence is not corroborated with medical evidence
as there is no injury on the chest of deceased in postmortem
report is overruled because both the eye-witnesses have stated
that deceased sustained injury on his chest the same is
corroborated with the inquest report which is proved by P.W.5
Naresh Prasad Sinha Investigating Officer. Moreover, in the
postmortem report is also shown that the ribs of the deceased had
fractured on account splinter. The infra memorial region wherein
the badly lacerated is shown is also closed to the chest. Moreover,
if there is contradiction in medical and ocular evidence, the
greater value should be given to the ocular evidence. There is
nothing on record which rule out the ocular testimony in view of
the postmortem report wherein the ribs which are the part of
chest have been shown fractured on account of explosion of bomb.
The Hon'ble Apex Court held in Bhajan Singh @ Harbhajan
Singh vs. State of Haryana A.I.R. 2011 S.C. page 2552:
38. Thus, the position of law in such a case of
contradiction between medical and ocular
evidence can be crystallised to the effect that
though the ocular testimony of a witness has
greater evidentiary value vis-à-vis medical
evidence, when medical evidence makes the
ocular testimony improbable, that becomes a
relevant factor in the process of the evaluation
of evidence. However, where the medical
evidence goes so far that it completely rules
out all possibility of the ocular evidence being
true, the ocular evidence may be disbelieved.
26. The learned Counsel for the appellant has also stated
that the prosecution sanction is not proved. On this ground the
conviction of the appellant cannot be sustained for the offence
under Section 3 of Explosive Substance Act. In this case the I.O.
has proved the consent for the trial in his testimony as Ext.4.
From perusal of Ext. 4, it is found that the consent for the trial
was given by District Magistrate, Godda on 04.05.2010 which
order No.14/2010 Office of District Magistrate, Godda. The
District Magistrate has stated that he had perused the report of
the Officer-in-Charge of Boarijor (Lalmatiya) P.S. Case No. 11 of
2010 dated 04.02.2020 and also concerned paper duly forwarded
by Superintendent of Police, Godda containing nature of the
offence alleged to have been committed by the accused persons
Salauddin Ansari and Gulam Ansari and from the material on
record, the prima facie case was made out and the Magistrate
concerned was satisfied. Accordingly, the sanction was accorded.
Here it is also relevant to mention that Section 7 of the
Explosive Substance Act only provides for the consent of the
District Magistrate for trial under Section 3 of Explosive
Substance Act which reads as under:
Section 7- "No Court shall proceed to trial of any
person for an offence against this act except with consent of
District Magistrate."
As such in view of Section 7 of the Explosive Substance
Act, 1908 it is the consent of the District Magistrate which is
required before trial and the same was obtained by the I.O. as
proved from Ext.4. Therefore, the conviction of the appellant for
the offence under Section 3 of Explosive Substance Act as held by
the trial court does not bear any infirmity.
27. Herein it would be pertinent to reproduce the
provisions of Section 3 of Explosive Substance Act and Section 7
of the Explosive Substance Act.
Section-3 of Explosive Substance Act
Punishment for causing explosion likely to
endanger life or property.- Any person who
unlawfully and maliciously causes by-
(a) any explosive substance an explosion of a
nature likely to endanger life or to cause serious
injury to property shall, whether any injury to
person or property has been actually caused or not,
be punished with imprisonment for life, or with
rigorous imprisonment of either description which
shall not be less than ten years, and shall also be
liable to fine,
(b) any special category explosive substance an
explosion of a nature likely to endanger life or to
cause serious injury to property shall, whether any
injury to person or property has been actually
caused or not, be punished with death, or rigorous
imprisonment for life, and shall also be liable to fine.
Section 7 of Explosive Substance Act
Restriction on trial of offences.--No Court shall
proceed to the trial of any person for an offence
against this Act except with the consent of the
1[District Magistrate].
28. Herein it would be pertinent to reproduce the provisions
of Section 300, 302 & 307 of I.P.C. as follows:
Section 300 IPC defines the act of murder
Murder- "Except in the cases hereinafter, excepted,
culpable homicide is murder, if the act by which the
death is caused is done with the intention of causing
death, or-
Secondly,- If it is done with the intention of causing
such bodily injury as the offender knows to be likely
to cause the death of the person to whom the harm
is caused, or-
Thirdly- If it is done with the intention of causing
bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary
course of nature to cause death, or-
Fourthly- If the person committing the act knows
that it is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is
likely to cause death, and commits such act without
any excuse for incurring the risk of causing death or
such injury as aforesaid."
302. Punishment for murder.--Whoever commits
murder shall be punished with death, or
1[imprisonment for life], and shall also be liable to
fine.
Section 307 of I.P.C.
Attempt to murder.--Whoever does any act with
such intention or knowledge, and under such
circumstances that, if he by that act caused death,
he would be guilty of murder, shall be punished with
imprisonment of either description for a term which
may extend to ten years, and shall also be liable to
fine; and if hurt is caused to any person by such act,
the offender shall be liable either to 1[imprisonment
for life], or to such punishment as is hereinbefore
mentioned.
Attempts by life convicts.-- 2[When any
person offending under this section is under
sentence of 1[imprisonment for life], he may, if hurt
is caused, be punished with death.]
31. From the prosecution evidence, the offence under
Section 300 which is punishable under Section 302 of I.P.C. is
made out as the throwing of the bomb which exploded was so
imminently dangerous that it must in all probability would cause
death shows the intention and knowledge of the appellant
Salauddin Ansari for committing murder of deceased Haffizuddin
Ansari. So far as the injury which the wife of deceased sustained
though was not on the vital part, yet the act of the appellant-
convict Salauddin Ansari throwing of the bomb which was so
imminently dangerous shows his intention and knowledge to
commit murder. Had the bomb hit on vital part of the wife of
deceased it would have caused murder, though the wife of
deceased sustained injury on her hands is also coupled with the
intention of appellant-convict assaulting with the bomb
indiscriminately which on account of explosion caused death of
Haffizuddin and also caused injuries to the wife of deceased by
use of the explosive substance i.e. bomb by the appellant
unlawfully and maliciously. Further, from the evidence adduced
on behalf of the prosecution, the ingredient of the charge for the
offence under Section 3 of Explosive Substance Act is also made
out.
32. The argument advanced by the learned Counsel for the
appellant that the learned trial court though has convicted the
appellant for the offence under Section 302 of I.P.C. but has given
finding in regard to commission of the murder in furtherance of
common intention; while the appellant was singally charge-
sheeted out of the 13 named accused in the F.I.R. and trial of the
appellant was also proceeded after taking cognizance on the very
charge-sheet. Rest of the accused were exonerated by the
Investigating Officer during investigation.
33. This argument advanced by learned Counsel for the
appellant is not tenable because from the perusal of the charge-
sheet which was filed by the Investigating Officer before the
Magistrate concerned, it is found that though the charge-sheet
was filed against the appellant Saladuddin Ansari out of the 13
named accused in the F.I.R. yet the rest of the accused were not
exonerated rather investigation against them was continued. In
view of the same if the trial court has based his finding in regard
to committing murder of the deceased by Salauddin in
furtherance of common intention along with other co-accused
same is not found bad.
34. It is also further pertinent to mention here though the
finding is there basing on common intention yet the appellant
Salauddin was convicted for the offence under Section 302 of
I.P.C. and also under Section 3 of Explosive Substance Act.
35. The last but not least the argument advanced on behalf
of the learned Counsel for the appellant is that the statement of
the convict/appellant under Section 313 of Cr.P.C. is defective in
which the question which was put up to the appellant/convict by
the trial court pertaining to incriminating circumstance in the
evidence against him is defective because the time of occurrence
is shown morning while as per prosecution case and also the
evidence adduced on behalf of prosecution the time of occurrence
is of 7 O'clock of evening. The trial court while putting to the
question has shown the time of occurrence 7 O'clock of morning.
It vitiates the trial and on the sole ground submitted to acquit the
appellant from the charged framed against him. The learned
Counsel for the appellant relied upon the following case law in
support of his argument.
Maheshwar Tigga vrs. State of Jharkhand in Cr.
Appeal No. 635 of 2020 (arising out of S.L.P.
(Cr.) No.393 of 2020).
36. Prior to answer this argument advanced by the learned
Court for the appellant, we avert to certain statutory provisions
and also the legal propositions of law as laid down by the Hon'ble
Apex Court which are reproduced here-in-below:
Section 313 of Cr.P.C. Power to examine the
accused.-(1) In every inquiry or trial, for the purpose of enabling
the accused personally to explain any circumstances appearing in
the evidence against him, the Court-
(a) may at any stage, without previously warning the
accused put such questions to him as the Court
considers necessary;
(b) shall after the witnesses for the prosecution have
been examined and before he is called on for his
defence question him generally on the case:
Provided that in a summons-case where the Court has
dispensed with the personal attendance of the accused,
it may also dispense with his examination under clause
(b).
(2) No oath shall be administered to the accused when
he is examined under sub-section(1).
(3) The accused shall not render himself liable to
punishment by refusing to answer such questions, or by
giving false answers to them.
(4) The answers given by the accused may be taken into
consideration in such inquiry or trial, and put in
evidence for or against him in any other inquiry into, or
trial for, any other offence which such answers may tend
to show he has committed.
[(5) The Court may take help of Prosecutor and Defence
Counsel in preparing relevant questions which are to be
put to the accused and the Court may permit filing of
written statement by the accused as sufficient
compliance of this section.]
Section 461 of Cr.P.C.- Irregularities which vitiate
proceedings.- If any Magistrate, not being empowered
by law in this behalf, does any of the following things,
namely-
(a) attaches and sells property under Section 83;
(b) issues a search-warrant for a document, parcel or
other thing in the custody of a postal or telegraph
authority;
(c) demands security to keep the peace;
(d) demands security for good behavior;
(e) discharges a person lawfully bound to be of good
behavior;
(f) cancels a bond to keep the peace;
(g) makes an order for maintenance;
(h) makes an order under section 133 as to a local
nuisance;
(i) prohibits, under Section 143, the repetition or
continuance of a public nuisasnce;
(j) makes an order under Part C or Part D of Chaper
X;
(k) takes cognizance of an offence under clause (c) of
sub-section (1) of section 190;
(l) tries an offender;
(m) tries an offender sumarrily;
(n) passes a sentence, under section 325, on
proceedings recorded by another Magistrate;
(o) decides an appeal;
(p) calls, under Section 397 for proceedings; or
(q) receives an order passed under Section 446, his
proceedings shall be void.
Section 465 of Cr.P.C.- Finding or sentence when
reversible by reason of error, omission or irregularity.-
(1) Subject to the provisions hereinbefore contained, no
finding, sentence or order passed by a Court of
competent jurisdiction shall be reversed or altered by a
Court of appeal, confirmation or revision on account of
any error, omission or irregularity in the complaint,
summons, warrant, proclamation, order, judgment or
other proceedings before or during trial or in any inquiry
or other proceedings under this Code, or any error; or
irregularity in any sanction for the prosecution, unless
in the opinion of that Court, a failure of justice has in
fact been occasioned thereby.
(2) In determining whether any error, omission or
irregularity in any proceeding under this Code, or any
error, or irregularity in any sanction for the prosecution
has occasioned a failure of justice, the Court shall have
regard to the fact whether the objection could and
should have been raised at an earlier stage in the
proceedings.
37. The Hon'ble Apex Court held in Alister Anthony
Pareira vs. State of Maharastra 2012 (1) SCC Cr. 953:
61. From the above, the legal position
appears to be this: the accused must be
apprised of incriminating evidence and
materials brought in by the prosecution
against him to enable him to explain and
respond to such evidence and material.
Failure in not drawing the attention of the
accused to the incriminating evidence and
inculpatory materials brought in by the
prosecution specifically, distinctly and
separately may not by itself render the trial
against the accused void and bad in law;
firstly, if having regard to all the questions
put to him, he was afforded an opportunity
to explain what he wanted to say in respect
of the prosecution case against him and
secondly, such omission has not caused
prejudice to him resulting in failure of
justice. The burden is on the accused to
establish that by not apprising him of the
incriminating evidence and the inculpatory
materials that had come in the prosecution
evidence against him, a prejudice has been
caused resulting in miscarriage of justice.
38. The Hon'ble Apex Court held in Paramjeet Singh @
Pamma vs. State of Uttarakhand A.I.R. 2011 S.C. page 200:
24. If any appellate court or revisional court
comes across the fact that the trial court had
not put any question to an accused, even if it
is of a vital nature, such an omission alone
should not result in the setting aside of the
conviction and sentence as an inevitable
consequence. An inadequate examination
cannot be presumed to have caused prejudice.
Every error or omission in compliance with
the provisions of Section 313 CrPC, does not
necessarily vitiate trial. Such errors fall
within the category of curable irregularities
and the question as to whether the trial is
vitiated, in each case depends upon the
degree of error and upon whether prejudice
has been or is likely to have been caused to
the accused. Efforts should be made to undo
or correct the lapse.
39. The Hon'ble Apex Court held in Liyakat & Ors. vs.
State of Rajasthan 2015 (88) A.C.C. page 372
26. The decisions of this Court quoted
hereinabove would show the consistent view
that a defective examination of the accused
under Section 313 Cr.P.C. does not by itself
vitiate the trial. The accused must establish
prejudice thereby caused to him. The onus is
upon the accused to prove that by reason of
his not having been examined as required by
Section 313 he has been seriously prejudiced.
40. The learned Counsel for the appellant has contended
that the trial court while putting incriminating circumstance in
regard to commission of the alleged offence which came in
evidence against him has asked the time of occurrence of morning
in place of evening. This omission in the statement of the
accused under Section 313 of Cr.P.C. is not such an omission
which vitiates trial as there is nothing in Section 461 of
Cr.P.C. wherein irregularities which vitiates proceeding are
shown. This omission or irregularity is not shown under Section
461 of Cr.P.C. Further it is also pertinent to mention here that
while this question was asked to the accused and time of
occurrence was told of morning in place of evening, the same
was not objected by the accused while answering the question
although as per prosecution matrix and also the evidence
adduced on behalf of prosecution the occurrence is of 7
O'clock of evening and the accused who is appellant-convict
was also very much aware from the evidence adduced against
him that the time of occurrence was evening.
41. The learned Counsel for the appellant could not show
what failure of justice occasioned to appellant/convict on account
of this omission in regard to time of occurrence in place of evening
as morning.
42. Learned Counsel for the appellant could not show
what prejudice was caused to the appellant from this
omission in regard to time of occurrence as morning in place
of evening. While the appellant/convict was thoroughly aware
that the time of occurrence was evening and he in not raising of
objection while answering the question No.1 put to the
appellant/convict by the trial court under Section 313 of Cr.P.C.
at the very time of recording statement of 313 of Cr.P.C.
Therefore, this omission which has caused no failure of
justice occasioned to the appellant/convict or prejudice to
him the same cannot be the ground to alter the finding of
learned trial court in conviction of the appellant/convict.
43. The burden of proof also lies upon the appellant to
show what prejudice or what failure of justice was caused to the
appellant/convict. This omission in regard to time of occurrence
as morning in place of evening does not come in category of the
irregularities, which vitiate trial in view of Section 461 of Cr.P.C.
44. From the statement of the accused/convict under
Section 313 of Cr.P.C. it is found that all the incriminating
circumstance which was against him in the evidence adduced by
the prosecution has been put to him to be explained by the
accused.
45. In view of the above, re-appreciation of the evidence
adduced on behalf of the prosecution as discussed hereinabove
we are of considered view that the prosecution has been
successful to prove its case beyond reasonable doubt and the
impugned judgment of conviction and sentence passed by the trial
court needs no interference and this appeal deserves to be
dismissed.
46. Accordingly, this appeal is hereby dismissed. The
impugned judgment of conviction and sentence passed by the trial
court is confirmed. The Appellant is directed to serve out the
sentence inflicted by court-below as he is in Jail. Let the trial court
be certified in regard to this judgment along with LCR to ensure
the compliance of conviction and sentence.
47. Pending interlocutory application(s), if any, also stands
disposed of.
I agree (Sujit Narayan Prasad, J.)
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Jharkhand High Court, Ranchi
Dated the 17.07.2023
P.K.S./A.F.R.
