Jharkhand High Court
Rashid Ansari vs The State Of Jharkhand on 18 September, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
.....
(Against the judgment of conviction dated 20.12.2010 and sentence
dated 22.12.2010 passed by learned Additional Sessions Judge, F.T.C.-
III, Dhanbad in Sessions Trial No.84 of 2009).
.........
Cr. Appeal (D.B.) No. 102 of 2011
.........
1.Rashid Ansari, S/o Mofiz Ansari, R/o Village Brahmandiha Tola
(Huchuktand), P.S. Baliapur, Dist- Dhanbad, Jharkhand
2.Mukhtar Ansari, S/o Mofiz Ansari, R/o Village- Brahmandiha Tola
(Huchuktand), P.S. Baliapur, Dist- Dhanbad, Jharkhand.
..... Appellants
Versus
The State of Jharkhand .... Respondent
WITH
Cr. Appeal (D.B.) No. 116 of 2011
1.Ashok Hansda, S/o Fuchu Hansda, R/o Village- Brahmandiha Tola
Huchuk Tand, P.O. & P.S.- Baliapur, District- Dhanbad
2.Hira Lal Murmu, S/o Keshar Murmu, R/o Village- Brahmandiha Tola
Huchuk Tand, P.O. & P.S.- Baliapur, District- Dhanbad
..... Appellants
Versus
The State of Jharkhand .... Respondent
.........
For the Appellants : Mr. S.P. Roy, Advocate
Mr. M.B. Lal, Advocate
For the State : Mrs. Priya Shreshta, Spl. Public Prosecutor
Mr. V.S. Sahay, AddI. Public Prosecutor
-----------
PRESENT
Sri Ananda Sen, J.
Sri Gautam Kumar Choudhary, J.
JUDGMENT
07/ 18.09.2024
By Court:
These criminal appeals are directed against the conviction of the
appellants under Sections 376(G)/302/34 of the Indian Penal Code
vide judgment of conviction dated 20.12.2010 and order of sentence
dated 22.12.2010, whereby they have been sentenced to undergo
rigorous imprisonment for life and fine of Rs.10,000/- each.
2. Learned counsel for the appellants submit that these appellants
have been falsely implicated in this case without their being any
evidence. The fardbeyan can be said to be a statement under Section
162 of Cr.P.C. as it is an admitted case of the prosecution that before
the FIR was registered on the basis of the fardbeyan, the police got
information about the occurrence and twice were present at the place
of occurrence and had already started investigation. He submits that
when the police visited the place of occurrence, none of the persons
whispered about the involvement of these appellants, rather they
stated that offence has been committed by unknown miscreants.
Exhibit-A, which has been exhibited by the Investigating Officer also
establish the fact that at the very initial stage, none of the persons in
the village had ever taken the name of these appellants to be the
perpetrator of the crime. He further submits that from the evidence
led by the prosecution, it is clear that even prior to registering the
FIR, the prosecution has started investigation, which is a procedural
illegality and the same is incurable. On these grounds, he prays for
acquittal of these appellants.
3. Learned counsel appearing on behalf of the State submits that a
ghastly act of gang rape and murder has been committed by these
appellants. The informant had seen these appellants fleeing from the
place of occurrence and so did P.W.-1. P.W.-1 who was present in the
field plucking tomatoes had stated that he had seen these appellants
fleeing from the place of occurrence where the dead body was found.
From the statement of the informant and this witness, it is clear that
these appellants had committed rape and murder of the deceased.
4. The prosecution case is based on the fardbeyan of Washi Ahmad
Ansari, who stated that on 12.10.2008 at 05.00 P.M. in the evening,
Anisha Khatoon, daughter of the informant, aged about 14 years had
gone in the field about 900 meters from her house to attend the call of
nature. After some time, when she did not return, the informant and
his family members started searching her. He further stated that
when he reached near the filed of Umar Ali Ansari, he heard a
scream. He further stated that informant and Umar Ali Ansari,
hearing the scream, rushed towards that direction and saw the
appellants namely, Md. Rashid Ansari, Md. Mukhtar Ansari, Hiralal
Murmu and Ashok Hansda fleeing from behind the bushes.
Informant reached there and he saw his daughter lying naked. She
was dead and her cloths i.e. salwar, inner clothes and slipper were
thrown nearby.
5. On the aforesaid fardbeyan, Baliapur P.S. Case No.57 of 2008 was
registered under Sections 376(G), 302/34 of the Indian Penal Code.
The police after investigation, filed chargesheet against these
appellants under Sections 376(G), 302/34 of the Indian Penal Code.
6. The Court took cognizance and committed the case to the Court
of Sessions. As the appellants pleaded not guilty, charges were
framed and they were put on trial. Nine witnesses have been
examined in this case, who are as follows:-
(i) P.W.-1 Md. Umar Ali Ansari
(ii) P.W.-2 Mumtaz Ali Ansari
(iii) P.W.-3 Abdul Qayum Ansari
(iv) P.W.-4 Md. Zakir Ansari
(v) P.W.-5 Amina Bibi
(vi) P.W.-6 Washi Ahmad Ansari, informant of this case
(vii)P.W.-7 Dr. Shailendra Kumar
(viii) P.W.-8 Maheshwar Pd. Yadav
(xi)P.W.-9 Puran Oran.
7. The following documentary evidence and material exhibits were
exhibited by the prosecution:-
Exhibit-1- signature of P.W.-3 on the seizure list.
Exbibit-1/1 signature of Md. Jakir Ansari on the seizure list.
Exhibit-2 signature of Abdul Qayum Ansari on the inquest report.
Exhibit-2/1 signature of Md. Jakir Ansari on the seizure list.
Exhibit- 3 signature of Washi Ahmad Ansari on fardbeyan
Exhibit- 3/1 signature of Zafar Ansari on fardbeyan
Exhibit-3/2 signature of Mumtaz Ansari
Exhibit-4 Postmortem report
Exhibit-5 fardbeyan
Exhibit-6 Formal F.I.R.
Exhibit-7 Inquest report
Exhibit-8 Seizure list
Several materials exhibits were also marked on behalf of the
prosecution.
Material Exhibit-I- Plastic Badhna
Material Exhibit-II- Chappal (2)
Material Exhibit-III- Salwar
Material Exhibit-IV Green colour under pant.
Exhibit-A- Carbon copy of letter dated 13.10.2008
8. The Trial Court after completion of the prosecution evidence
examined these appellants under Section 313 of Cr.P.C. and after
hearing the parties, convicted these appellants under section 376(G),
302/34 of IPC.
9. In this case, we find that the F.I.R. is dated 13.10.2018, which was
registered at 14.30 hours. The information about the occurrence was
given to the police station on the same day i.e. 13.10.2008 about 00:15
hours, which is evident from the formal FIR, which was marked as
Exhibit-6. As per the fardbeyan, occurrence had taken place on
12.10.2008 at about 5.30 to 06.00 O'çlock in the evening.
10. On behalf of the prosecution, the main witness are the informant
i.e. P.W.1 and P.W.6. P.W.-1 and P.W.-6 had stated in similar line and
supported the fardbeyan. P.W.-6 stated that his daughter, the victim
went to ease herself, but she did not return after half an hour. When
he went to the place of occurrence in search of his daughter near the
field of Umar Ali Ansari (P.W.-1), he heard scream. He along with
Umar Ali Ansari rushed towards the direction of the scream and saw
these appellants fleeing. When he reached the place of occurrence, he
saw his daughter was bleeding from her nose and mouth and she
was found undressed. She was raped and murdered. P.W.-1 also
stated in the similar line.
11. From the evidence of these two witnesses, the prosecution has
tried to prove the case. But there are big loop holes in the prosecution
case, which is evident from their evidence and also from the evidence
of the Investigating Officer and from the evidence of other witness
and document.
12. As noted earlier the incident had taken place at 5.30 to 06.00 P.M.
on 12.10.2008. P.W.-1 in paragraph 4 of his deposition stated that
police came to the village at 11.00 P.M. P.W.-2, who is none, but
brother of the informant and a hearsay witness to the occurrence also
admitted that the police came at night, but his statement was not
recorded. The fact that occurrence had taken place at 05.30 P.M., has
also been admitted by P.W.-3, P.W.-4, P.W.-5 and P.W.-6. All these
witnesses have stated that at night their statement was not recorded
by police. P.W.-6 i.e. informant, in paragraph 3 of his deposition had
stated that it is P.W.-2, who had informed the police. Thus, from the
evidence, it is quite clear that on getting information, the police
reached the place of occurrence at about 11.00 O'çlock in night on
12.10.2008 itself. P.W.-5, who is the wife of the informant in
paragraph 14 of her deposition stated that sniffer dog came on the
next day in search of the miscreants.
13. Another important witness, who is the Investigating Officer in
paragraph 15 of his deposition had stated that on 13.10.2008 a
requisition was made by the Officer-in-charge of the police station for
bringing sniffer dog. The said document is marked as Exhibit-A.
When we go through the Exhibit-A, we find that said document is
written on 13.10.2008 by the Officer-in-charge, Baliapur to the
Superintendent of Police, Dhanbad. From the said letter, it is evident
that no case number has been mentioned, but it has been mentioned
that the said letter is being written in relation to rape and murder of a
girl. In the body of the said letter, it has been mentioned that a girl of
14 years has been raped and murder by unknown persons and
thrown in the bushes, for which, it is necessary to bring sniffer dog
from Bokaro. The Investigating Officer further, in para 18 stated that
when he reached near the place of occurrence, no one disclosed about
the name of these accused persons. In para 19, he stated that persons
assembled there demanding to bring sniffer dog, thus, the sniffer dog
was called from Bokaro, which arrived, but no success was achieved.
14. The aforesaid fact which is derived from the evidence clearly
establish the fact that before the fardbeyan and formal F.I.R. was
registered, the police reached the place of occurrence and started
investigation, when admittedly from the evidence none of the
persons, who were present, including the informant, P.W.-1 disclosed
the name of these appellants to be the perpetrator of the crime. It is
an admitted case which is evident from evidence of P.W.-3, P.W.-4,
P.W.-5 and P.W.-6 also that these appellants were known to all these
witnesses. If actually these appellants would have committed the
offence and were seen fleeing from the place of occurrence, why on
that night itself, when the police reached the place of occurrence,
their name was not disclosed and why in Exhibit-A, it was written
that some unknown persons have committed the rape and murder
and why the fardbeyan was not recorded. Further, the dead body was
recovered at 05.30 P.M. on 12.10.2008 and the information was given
to the police just after mid night. The police received the information
just after mid night, which has been recorded in the formal FIR, but
surprisingly P.W.-1 had stated that police came at night itself, which
means that before registering the formal FIR at 14.13 hours on
13.10.2008, the police already reached the place of occurrence, when
none disclosed the name of these appellants.
15. The aforesaid fact which is gathered from the evidence clearly
suggest that inclusion of the name of these appellants in the fardbeyan
is an afterthought. Further, we find that there was previous enmity of
the informant and these appellants, which is reflected from the oral
evidence led by the prosecution.
16. No doubt the prosecution has proved that the victim was
murdered and was raped and there were several materials found
next to the dead body of the deceased i.e. apparels undergarments,
slipper etc., but surprisingly no scientific/ forensic examination of
those materials was conducted nor the swab collected from the dead
body was sent for examination. Further, the Investigating Officer in
paragraph 20 of his deposition admitted that he has not sent any
materials for forensic examination. Thus, it can be concluded that this
ghastly crime of rape and murder of young girl of fourteen years has
not been investigated in proper manner.
17. From what has been held above, we find that there are genuine
and reasonable doubt about involvement of these appellants in the
crime.
18. Considering the aforesaid, we are inclined the allow criminal
appeals. Accordingly, these criminal appeals stand allowed.
19. The judgment of conviction dated 20.12.2010 and order of
sentence dated 22.12.2010 passed by learned Additional Sessions
Judge, F.T.C.-III, Dhanbad is set aside.
20. As these appellants are already on bail, they and their bailors are
discharged from the liabilities of the bail bonds.
21. Let Trial Court Records along with a copy of this judgment be
sent to the concerned trial court forthwith.
22. Interlocutory application(s), if any, also stands disposed of.
(Ananda Sen, J.)
(Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated 18/09/2024
NAFR /R.S./ Cp 03.
