Jharkhand High Court
Shamim Ansari vs The State Of Jharkhand on 25 November, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.494 of 2016
------
(Arising out of judgment of conviction and order of sentence
dated 13.04.2016 passed by Learned Sessions Judge,
Dhanbad, in Sessions Trial No.451 of 2014)
------
Shamim Ansari, son of late Abdual Mian, resident of Village Bithiya,
P.O. Bithiya, P.S. Govindpur, District Dhanbad.
... ... ... Appellant
Versus
The State of Jharkhand. ... ... ... Respondent
------
PRESENT : SRI ANANDA SEN, J.
: SRI GAUTAM KUMAR CHOUDHARY, J.
------
For the Appellant : Mr. A.K. Kashyap, Sr. Advocate, with
Mr. Naresh Pd. Thakur, Advocate
For the State : Ms. Nehala Sharmin, Spl. P.P.
------
JUDGMENT
CAV on: 28.10.2024 Pronounced on : 25/11/2024
Per Ananda Sen, J.:
This Criminal Appeal is preferred on behalf of the
appellant being aggrieved by the judgment of conviction and order
of sentence dated 13.04.2016 passed by Learned Sessions Judge,
Dhanbad, in Sessions Trial No.451 of 2014, whereby and where
under the appellant has been convicted for offences under Section
302 IPC, Section 27 of the Arms Act and Section 3 of The Prevention
of Witch (Daain) Practices Act. He was sentenced to undergo
imprisonment for life with fine of Rs.20,000/- under Section 302 IPC
and further to undergo rigorous imprisonment for 07 years with fine
of Rs.10,000/- for offence under Section 27 of the Arms Act and
further to undergo simple imprisonment for 03 months with fine of
Rs.1,000/- for offence under Section 3 of The Prevention of Witch
(Daain) Practices Act.
2. Heard learned counsel for the appellant and learned Spl.
P.P. for the State and perused the material available on record.
3. Learned senior counsel representing the appellant
submitted that the witnesses are tutored witnesses and their version
should not be believed. He submitted that the main witness i.e. the
son of the deceased namely Sohail Ansari was not produced by the
prosecution as a witness, rather, he was examined as Court witness.
As per the defence, the Court witness Sohail Ansari was not
examined by the police either under Section 161 Cr.P.C. or under
Section 164 Cr.P.C., thus, his statement cannot be considered. As
per him, the production of this witness as a Court witness creates a
doubt about the credibility of this witness, as the prosecution had an
apprehension that if he would have been brought by the
prosecution, he would not have supported the prosecution story. He
submits that the seizure list witnesses of the firearm had not been
examined. Neither the firearm nor the bullet was sent to the
Forensic Science Laboratory. All these materials were also not
produced before the Court. Based on the testimony of sole witness
who is a child witness, aged about 12 years at the time of
deposition, the conviction of the appellant cannot be sustained.
4. Learned Spl. P.P. representing the State vehemently
opposed the Criminal Appeal and submitted that though the son of
the deceased was examined as Court witness, his credibility cannot
be doubted. The defence never objected his examination as Court
witness, now they cannot take the plea that his evidence should not
be considered. She submitted that non-examination of this witness
by the Investigating Officer or not recording his statement under
Section 161 Cr.P.C. cannot be said to be fatal on the facts of the
case. For the lacuna in the investigation, the accused cannot be
acquitted when there are materials in support of his conviction. The
presence of this child witness at the place of occurrence is
established by other witnesses. The Investigating Officer also stated
that the pistol was recovered and the bullet was lying near the dead
body. The medical evidence also suggests that the deceased died
because of gunshot injury. The place of occurrence which is the
house of this appellant has also been proved. Thus, there is no
ground to acquit the appellant.
5. The facts germane are that a written report has been
filed by the informant namely Ayub Ansari before the Police Station
In-Charge, Govindpur Police Station, District Dhanbad, alleging
therein that his niece was married with the appellant - Shamim
Ansari, in the year 2001 as per Muslim rites and customs. They have
two sons and one daughter. On 15-16.08.2014 at about 01:00 A.M.,
his niece was shot dead by her husband Shamim with a country
made pistol. On receiving this information on mobile from Bhitiya,
he along with 4-5 persons reached appellant's house and found the
incident to be true as the bullet was shot on the head and the brain
matter of the deceased was protruded. Son of the deceased stated
that when he woke up after hearing a sound, he saw his father with
a country made pistol in his hand and mother lying in a pool of
blood. He stated that it is noteworthy that in past, the deceased was
complaining before them against her husband, that he is branding
her as a witch and torturing her, but informant tried to pacify the
situation.
6. On the basis of aforesaid written report, F.I.R. being
Govindpur P.S. Case No.400 of 2014 was registered under Section
302 IPC, Section 27 of the Arms Act and Section 3/4 of The
Prevention of Witch (Daain) Practices Act and charge-sheet was
submitted against the appellant. Thereafter, cognizance was taken
and the case was committed to the Court of Sessions by learned
J.M. Ist, Dhanbad. The charge was framed under Section 302 IPC,
Section 27 of the Arms Act and Sections 3 and 4 of The Prevention
of Witch (Daain) Practices Act but the appellant pleaded not guilty
and claimed to be tried.
7. P.W.-2 namely Nurul Haque and P.W.-3 namely Jiaul
Haque are the witnesses who stated that they had received
information at night that this appellant has committed murder of his
wife by shooting her with the firearm. They went to the place of
occurrence when Sohail (son of the deceased) told them that it is
this appellant who had shot dead the deceased. He stated that he
had seen his father with the pistol in his hand and mother lying in
the pool of blood. The reason narrated before them was that the
appellant had an impression that the deceased was practicing
witchcraft. In cross-examination, P.W.-2 and P.W.-3 have stated that
they had not seen the occurrence but what they had narrated was
learnt from Sohail.
8. Thus, from the evidence of these two witnesses, I find
that they had seen the dead body of the deceased in the house of
this appellant and it is Sohail who had narrated before them about
the occurrence and told them that it is this appellant who had
committed murder of the deceased by firearm. These two witnesses
admittedly are not the eye witnesses to the occurrence.
9. P.W.-4 has proved the written report. He stated that the
Investigating Officer had recovered the firearm at the instance of
this appellant. This witness who is the brother of the deceased had
stated that his nephew (Sohail) stated before him that when he
woke up as a result of a sound of firearm, he had seen his father
with the pistol in his hand and mother lying in a pool of blood. Thus,
from his evidence also, I find that it is his nephew i.e Sohail who
had narrated the entire story and he also had seen the dead body in
the house of this appellant.
10. P.W.-1 namely Suleman Ansari, is the maternal uncle,
who had stated that it was his nephew - Sohail Ansari, who had
narrated the incident to him.
11. The Doctor is P.W.-6. He found the following ante mortem
injuries:-
I. Wound of entrance of firearms 1/6" diameter x cavity
deep on the right side parietal region of head about 1
3/4 " Above the root of right ear margins of the wound
were inverted and abrasion collar was found all around
the margins with no evidence of burning, singeing,
blackening or tattooing.
II. Wound of exit of firearm:-
1 1/2" x 3/4" x cavity deepon the left side of forehead
with inverted margins. Blood, brain matters and fire
pieces of bones were found coming out of the wound.
No other external injury was found on the person of the
deceased. Perforating fractures were found on the
parietal and frontal bone of skull at the sites of wound
of entrance and exit respectively. Linear fractures were
found in the frontal and parietal bones on the both
sides and also on the temporal and petrous bone of
skull on the right side. Brain and meninges were found
lacerated. Heart and bladder were empty. Stomach
contained about 150 cc of blood mixed fluid. Uterus was
normal and non pregnant, other internal organs were
found pale.
The Doctor found entrance and exit wound of firearm. He
also found perforated wound and cause of death as per him is due
to injuries in the head and brain caused by bullet, fired from a
distance of more than 2 feet. The post-mortem report is marked as
Ext.2.
The evidence of the Doctor clearly suggests that the
death is homicidal and is caused by firearm which is the consistent
case of the prosecution.
12. The Investigating Officer is P.W.-7. He proved the formal
F.I.R. as Ext.3 and stated that he has recorded the statement of the
witnesses and prepared the arrest memo after arresting the
appellant. He stated that at the instance of this appellant, the
murder weapon was recovered from an isolated place near the bush.
He also produced the pistol which was marked as material Ext.I. The
seizure list of the weapon was marked as Ext.7. The bullet
recovered from the body of the deceased was marked as Ext.-III.
13. The glaring aspect in this case is that the eye witness
who is the child witness aged about 12 years, son of the deceased
and the appellant, who was present in the house, was not examined
by the Investigating Officer nor was projected as a prosecution
witness. This is a lacuna on part of investigation. I am refraining
from making any comment on the point whether by not doing so,
the Investigating Officer had tried to help the appellant or not. The
lacuna has been taken note of and the Trial Court thus has
summoned the son of the deceased i.e. Sohail to depose as Court
witness. This witness was capable to depose. He stated that he was
sleeping with his parents and his brother when on a sound of a
gunshot he woke up. He saw his father standing with a pistol in his
hand and mother convulsing on bed with blood scattered around
her. He raised alarm when his father fled.
14. When I go through his evidence, I find that on these
points, he has not even cross-examined. The only cross-examination
is on the point of his tutoring which he denied. Though he stated
that he had not seen this appellant shooting the deceased but he
reached the place immediately after the occurrence and had seen
his father standing with the firearm and the deceased lying in a pool
of blood and was convulsing. His statement to this effect is
corroborated by the other witnesses as discussed above, as all of
them stated that it is this witness who has narrated how the
deceased was murdered by this appellant. Thus, the presence of this
witness at the place of occurrence is established by other witnesses.
His evidence is also supported by the medical evidence.
15. When the prosecution fails to produce witness, it is the
Court who has a sacred duty to churn out the truth. In order to
arrive at the truth, the court has ample power to call for any
witness. The Court is not a mere puppet in the hand of the
prosecution and it cannot be said that the Court will only record the
statement of the witnesses who are produced by the prosecution or
who are only named as charge-sheet witness. It will be wrong to
say that the Court does not have the power to call for any witness
who can throw light on facts, to do proper justice in a case. The
Hon'ble Supreme Court in the case of Zahira Habibullah Sheikh
(5) v. State of Gujarat reported in (2006) 3 SCC 374, Para-26,
has held as hereunder:-
26. In this context, reference may be made to Section 311
of the Criminal Procedure Code which reads as follows:
"311. Power to summon material witness, or examine
person present.--Any court may, at any stage of any
inquiry, trial or other proceeding under this Code, summon
any person as a witness, or examine any person in
attendance, though not summoned as a witness, or recall
and re-examine any person already examined; and the
court shall summon and examine or recall and re-examine
any such person if his evidence appears to it to be essential
to the just decision of the case."
The section is manifestly in two parts. Whereas the word
used in the first part is "may", the second part uses "shall".
In consequence, the first part gives purely discretionary
authority to a criminal court and enables it at any stage of
an enquiry, trial or proceeding under the Code (a) to
summon anyone as a witness, or (b) to examine any
person present in the court, or (c) to recall and re-examine
any person whose evidence has already been recorded. On
the other hand, the second part is mandatory and compels
the court to take any of the aforementioned steps if the
new evidence appears to it essential to the just decision of
the case. This is a supplementary provision enabling, and
in certain circumstances imposing on the court the duty of
examining a material witness who would not be otherwise
brought before it. It is couched in the widest possible terms
and calls for no limitation, either with regard to the stage
at which the powers of the court should be exercised, or
with regard to the manner in which it should be exercised.
It is not only the prerogative but also the plain duty of a
court to examine such of those witnesses as it considers
absolutely necessary for doing justice between the State
and the subject. There is a duty cast upon the court to
arrive at the truth by all lawful means and one of such
means is the examination of witnesses of its own accord
when for certain obvious reasons either party is not
prepared to call witnesses who are known to be in a
position to speak important relevant facts.
In this case, the Sessions Judge has done exactly the
same what is expected from him. Thus, I hold that there is no
illegality in examining the child witness namely Sohail Ansari as the
Court witness, as his examination was absolutely necessary for
delivering proper justice.
16. From what has been held above, I find that the
prosecution has been able to prove the guilt of the appellant beyond
all reasonable doubt. The Trial Court considered all these aspects
properly and thereafter convicted the appellant. Thus, the impugned
judgment of conviction and order of sentence dated 13.04.2016
passed by Learned Sessions Judge, Dhanbad, in Sessions Trial
No.451 of 2014, does not want any interference and the same is
hereby affirmed. Accordingly, this Criminal Appeal is dismissed
sans any merit.
17. Pending I.A., if any, stands disposed of.
18. Trial Court Record be transmitted back to the Court
concerned.
(ANANDA SEN, J.)
Per Gautam Kumar Choudhary, J. - I agree
(GAUTAM KUMAR CHOUDHARY, J.)
HIGH COURT OF JHARKHAND, RANCHI
Dated:- 25/11/2024
AFR / Prashant
