Nehali Mian @ Nihali Mian vs The State Of Bihar
2023 Latest Caselaw 5286 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.365 of 2023
      Arising Out of PS. Case No.-20 Year-2015 Thana- KATORIYA District- Banka
======================================================

Nehali Mian @ Nihali Mian, son of Hanif Mian, Resident of Village Manjhlatila, Police Station Anandpur, District- Banka.

... ... Appellant Versus The State of Bihar

... ... Respondent ====================================================== Appearance :

For the Appellant/s     :        Mr.Ajay Mukherjee, Advpcate
                                 Mr. Ganesh Sharma, Advocate
For the Respondent/s    :        Mr.Ajay Mishra, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI and HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA)

Date : 12-10-2023 Heard Mr. Ajay Mukherjee, learned counsel for the

appellant and Mr. Ajay Mishra, Learned Additional Public

Prosecutor for the State.

2. At the outset, this matter was taken up on Board

for consideration of the prayer for bail made on behalf of the

accused-appellant namely, Nehali Mian @ Nihali Mian.

During the course of hearing, it was requested by learned

counsel appearing on behalf of the appellant that appellant-

accused is in custody for about nine years, therefore, the matter

may be heard finally. The request of early hearing in view of

custody period of the appellant-accused was also not objected Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

by learned Additional Public Prosecutor for the State.

3. Accordingly as, Lower Court Records (in short

'LCR') and typed copy of depositions are available on the

record, on joint request as made above by the parties, we have

taken this appeal for its final hearing.

4. The present appeal preferred under Section 374(2)

of the Code of Criminal Procedure (in short the 'Cr.P.C.')

challenging the judgment and order of conviction dated

28.02.2023 and order of sentence dated 02.03.2023, respectively

as passed by Shri Ashutosh Kumar, learned 1st Additional

District & Sessions Judge, Banka, in Sessions Trial No.

642/2016 arising out Katoriya Suiya P.S. Case No. 20 of 2015,

whereunder appellant-accused was convicted for offence

punisbale under Section 302 of the Indian Penal Code (in short

"IPC') and ordered to undergo rigorous imprisonment for life,

and further directed to pay a fine of Rs. 10,000/- where in

default, ordered to undergo simple imprisonment of three

months.

5. The prosecution case in brief as it spring from

narration of First Information Report (in short 'FIR')/fardbeyan

authored by one Mubarak Ansari, son of Tauhid Ansari

examined before the trial court as PW-9, that his father was Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

proceeded for Banka in the morning at about 6:30 am on

21.01.2015, but failed to return home, consequently a Sanha

(information) was lodged on 23.01.2015 at Suiya Police Station.

It is stated that father of the informant seen going together with

Kamruddin Ansari. It is submitted further that informant came

to know from one Akhtar Ansari, son of Abdul Ansari, brother-

in-law of his brother who is resident of village Sarkanda that he

saw his father on 21.01.2015 at about 6:45 AM, near east of

Laheriya village going toward Satletwa. He asked to come along

with him but he denied. He further came to know that on

moving ahead, he found Ahsan Ansari, Kamruddin Ansari and

Alauddin Ansari, all son of late Shaheed Ansari were sitting

behind a bush in a road side ditch. Further moving ahead

towards east, he found Nehali Mian, son of Hanif Mian, resident

of Majhalatila, P.S. Anandpur, along with other co-accused,

standing near a tree beside road. He asked him as what they are

doing there, where it was replied that they are doing their own

work and asked Akhtar Ansari to go away from there. It appears

from the narration of fardbeyan that after 3-4 days when he

visited to his brother-in-law and asked about his father he came

to know that he is missing since 21.01.2015, and on so he said

that he is also aware about the occurrence as he received the Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

said information over phone. He again started search for his

missing father and found that dogs were digging the sand one

kilometer ahead of Chouripita village. They also found knife

and dead body of his father which was buried inside the soil.

The said dead body was identified by him, both hands and legs

were found chopped along with head from the rest of the body.

Chopped hands and legs were also found near to the dead body.

The said information was given over phone to Suiya Police

Station. Thereafter, police Incharge O.P. Suiya came over there.

It was stated that as there was enmity with Ahsan Ansari, out of

which Ahsan Ansari along with other co-accused persons, might

have killed his father. It further appears from the narration that

said Ahsan and others also made attempt on earlier occasion to

kill his father by open firing. He claimed that all three brothers

of Ahsan Ansari, Nehali Mian (appellant accused), Jarina Bibi

and 1-2 other unknown accused persons committed the brutal

murder of his father.

6. On the basis of aforesaid written information/

fardbeyan, Suiya P.S. Case No. 20 of 2015 was registered on

25.01.2015, where after investigation, police submitted charge-

sheet against four accused persons, including appellant-accused

Nehali Mian under Sections 364/302/201/120-B/34 of IPC Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

through charge-sheet bearing No. 54/2015 dated 09.12.2015 for

the offences as mentioned above, where learned jurisdictional

Magistrate took cognizance and after supplying police papers

under Section 207 of Cr.P.C. committed the present case to the

Sessions Division under Section 209 of Cr.P.C.

7. On the basis of the materials collected during the

course of investigation, learned trial court framed charges

against the accused persons namely, Ahsan Ansari, Kamruddin

Ansari, Mohsin Ansari @ Mousim Ansari and Nehali Mian

(appellant-accused) under Section 364/34, 302/34, 201/34, 120-

B on 25.06.2016, which were duly explained to him, which they

denied and claimed for trial, accordingly, the trial of case was

commenced before the learned trial court.

8. To substantiate its case before the learned trial

court, prosecution altogether examined 12 witnesses, who are

namely, PW-1 Aabid Ansari, PW-2 Md. Moin Ansari, PW-3 Md.

Kamruddin Ansari, PW-4 Rustam Ansari, PW-5 Taslim Ansari,

PW-6 Sharafat Ansari, PW-7 Manjoor Ansari, PW-8 Dr.Mukesh

Kumar, PW-9 Mubarak Ansari (the informant), PW-10

Umashankar Kamat (first I.O. of the case), PW-11 Md. Adalat

Ansari and PW-12 is Raj Kapoor Kushwaha (second I.O. of this

case).

Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

9. Prosecution also substantiate following Exhibits in

support of present case before the learned trial court, which are

as under:

                      Sl.No.                 Exhibit                Documents
                     1.        Exhibit 1                     Signature   of Abid
                                                             Ansari on fardbeyan as
                                                             a witness.
                     2.        Exhibit 1/1                   Signature of Mubarak
                                                             Ansarai (PW.9) who
                                                             has written informant/
                                                             fardbeyan.
                     3.        Exhibit 2                     Signature of Bhikan on
                                                             seizure list.
                     4.        Exhibit 3                     Post mortem report
                     5.        Exhibit 4                     Forwarding report over
                                                             fardbeyan
                     6.        Exhibit 4/1                   Endorsement       over
                                                             fardbeyan as to lodge
                                                             the present case.
                     7.        Exhibit 5 and 5/1             Seizure list.
                     8.        Exhibit 6                     Inquest report.
                     9.        Exhibit C/1                   Requisition       of   M/s
                                                             Airtel
                     10.       Exhibit X                     CDR of mobile no.
                                                             9931150303
                     11.       Exhibit X/1                   CDR of mobile no.
                                                             7759986679

10. Accused persons including appellant-accused

Nehali Mian examined under Section 313 of Cr.P.C. by putting

them incriminating circumstances/evidences surfaced during the

course of trial, which they replied in negative and shown their

complete innocence.

11. A court witness was also examined namely, Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

Balmiki Kumar as CW-1 before the learned trial court who

brought the document in support of SIM issued by M/s Bharti

Airtel in favour of accused-appellant Nehal Ansari and Tauhid

Ansari which were exhibited before the court as Exhibit

-C1/CW-1.

12. On the basis of evidences/circumstances which

surfaced during the course of trial and also by taking into

consideration of submissions as advanced by learned counsel

appearing on behalf of the parties, the learned trial court

acquitted accused persons namely, Ahsan Ansari, Kamruddin

Ansari and Mousim Ansari, whereas convicted Nehali Mian

under Section 302 of IPC. It appears from the impugned

judgment that appellant-accused also acquitted from the charges

of 364, 201, 120-B/34 of the IPC by giving him benefit of

doubt. On conviction under section 302 of the IPC appellant-

accused Nehali Mian was ordered to undergo sentence for life

imprisonment along with fine of Rs. 10,000/-, and in default of

payment of fine, he was directed to undergo simple

imprisonment for three months. Being aggrieved with said order

of conviction and sentence, accused-appellant Nehali Mian

preferred the present appeal.

13. Hence, the present appeal.

Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

14. It is submitted by learned counsel appearing on

behalf of the appellant-accused that admittedly this case is rest

upon circumstantial evidence where motive is the prime

concern. It is pointed out that save and except suspicion nothing

appears on record which may suggest inimical terms of

appellant-accused with deceased and his family. It is pointed out

that through fardbeyan it is specifically stated that it was four

brothers of Ahsan Ansari along with this appellant-accused were

in inimical term but after trial Ahsan Ansari, Kamruddin Ansari

and Mousim Mian were acquitted. It is also pointed out that the

alleged mobile set in which SIM of accused-appellant was used,

recovered from the house of Mausim and not from the house of

this accused-appellant. It is submitted that even the dead body

was not recovered on instance of appellant-accused. It is pointed

out that the present FIR was lodged after four days of missing of

father of the informant (PW-9) and also recovery of dead body

parts and alleged knife were recovered prior lodging FIR. It was

submitted that no forensic report regarding alleged weapons

were obtained during the course of investigation. It is pointed

out that having this limited single circumstance in hand, the

prosecution cannot said that none else than this appellant-

accused committed the murder of father of the informant by Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

claiming that chain of circumstances are completed. It is also

pointed out that appellant-accused acquitted from the charge of

kidnapping and conspiracy. It is also submitted that seizure list

witnesses were not examined before the learned trial court,

where conviction and order of sentence were recorded only on

the basis of single circumstance, where non-examination of

seizure list witnesses appearrs fatal for prosecution. The learned

counsel for the appellant while concluding argument relied upon

the judgment of Hon'ble Supreme Court in the case of Sharad

Birdhi Chand Sarda Vs. The State of Maharashtra reported

in (1984) 4 SCC 116.

15. Learned Additional Public Prosecutor while

arguing on behalf of the State submitted that the appellant-

accused failed to explain as to how his SIM/mobile number

which was issued in his name used in the handset of deceased,

which appears proved before learned trial court through

appropriate Exhibits. It is submitted that non-explanation of this

circumstance in itself appears sufficient to suggest that none else

than the accused-appellant committed the murder of father of

the informant and as such, the finding of conviction and

sentence recorded by learned trial court is correct.

16. We have perused the materials available on the Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

records and the argument canvassed by learned counsel

appearing on behalf of the parties. It appears that for just

disposal of the present appeal the reappreciation of evidences

are required as available on record and, therefore, it appears

apposite to us to discuss the prosecution witnesses and

documents which were exhibited before the trial court as under.

17. PW-1 is Abid Ansari, who deposed that his father

left his house on 21.05.2015 at about 6:30 PM, having bag in

hand and his mobile and when he did not returned to home by

evening, he called his father on his mobile but the same was

found switched off. It was deposed that on 22 nd January, 2015

his brother Mubarak Ansari (PW-9) went Banka in search of his

father where he came to know that his father did not reached

there. They went to police station on 23.01.2015 and given

name of Ahsan Ansari, Kamruddin Ansari and Alauddin Ansari

that they killed their father. He deposed also that in the year

2004 these three persons also made firing on his father but at

that time, he survived. He deposed to supply mobile number of

his father to SHO and thereafter he returned to home, where

brother-in-law of his brother, namely, Akhtar Ansari, resident of

village - Sarkanda came to them and asked that whether he

could traced his father but he replied him that he was murdered. Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

On this reply, it was said by Akhtar, that on 21.01.2015, while

he was going to Katoriya, he met with my father and asked him

to sit over his motorcycle but he denied and so he moved further

and found Ahsan Ansari, Kamruddin Ansari and Alauddin

Ansari were sitting together in a road side ditch. After moving

further, he found Akhtar Mian, Nehali Mian and Jareena Bibi

were also sitting there. Thereafter, he deposed to search his

father along with said Akhtar till 24.01.2015 and in course of

searching on 25.01.2015, when he reached to village-

Chandopira he found the dogs were barking towards one

kilometer south of Ghaghat river and when they went there,

they found sand mixed-up with blood. On digging, they found

the dead body of his father. Both hands and legs were chopped

and were buried under sand at a distance of 200 yards. He

deposed that his brother Mubarak (PW-9) called up SHO of

Suiya Police Station, but same was found switched off,

thereafter he called SHO of Bhairoganj who came over there

and he called up then Suiya Police Station. It was deposed that

SHO of Bhairoganj also called SHO of Katoriya and thereafter

police personnel from three police stations came over there.

They asked to all gathered persons over there, who said that this

is the dead body of Tauhid Mian. He deposed to find one bullet Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

injury mark in chest of his father, thereafter he came to Katoriya

Police Station for doing the paper formalities and thereafter

went for post-mortem examination. It was stated that police

visited at his house on 23.01.2015. It was deposed that Police

Inspector visited to Ladaniya Chowk where he gave two mobile

numbers to one Dr. Khurshid and asked him to dial said number

where one number connected Bharjor village where wife of

Karki Mian namely, Jareena Bibi picked up. On second number

one lady picked up the phone which was found in charging

condition at the house of Mohjin. When he along with police

personnel went to the house of said Mohjin and asked him to

give mobile, he said that same belongs to Nehali Mian

(appellant-accused). Mobile was brought to them by a child,

where SIM was removed by said child. For such act, police

inspector slapped the said child and thereafter said mobile was

taken by police inspector. It was deposed by him that post-

mortem was conducted on 25.01.2015. Police of Bhairoganj

also brought Sniffer dogs at the place where dead body of his

father was recovered. The dogs were moved here and there and

thereafter they sat at outhouse, near 'Tewa'. He identified his

signature over fardbeyan as a witness which was Exhibited as

Exhibit-1 and also identified accused persons including Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

appellant-accused Nehali Mian, Mohjim Mian, Ahsan Mian and

Kamruddin Mian, who were present before the learned trial

court.

17.1. On cross-examination, it was stated by him that

all papers were prepared at Katoriya Police Station. It was also

stated by him that information given to Suiya Police Station was

not signed. It was also stated that his statement was recorded on

25th at about 4:00 PM, the day on which the dead body was

recovered. The statement of his brother Mubarak (PW-9) was

also recorded on that day. No further statement was recorded on

said day. His statement was recorded at Katoriya Police Station.

It was stated by him that he came to know first time regarding

death of his father from Akhtar at his home, at that point of

time, his brother and entire family members were present over

there. Akhtar Ansari is brother-in-law of his brother Riyasat

Ansari. It was stated that he never made statement before police

that Khurshid was given two mobile numbers by police. It is

stated that they have long standing land dispute with the accused

persons including the appellant-accused. It is stated that he is

not aware about the fact that whether his father was accused

regarding hurling bomb on one Kalim and he remain in jail, in

said occurrence. He also deposed to know one Usman but failed Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

to depose that his father remains in jail in connection with

murder of said Usman. He denied to depose falsely out of

previous enmity. It was stated by him that this case was lodged

by him along with Mubarak, but statement was given by

Mubarak (PW-9). It was stated that his father leave home on 21 st

January 2015, he gave Sanha on 23rd January, 2015 and the dead

body was recovered on 25th January 2015. It was stated that after

registeration of case, he given his statement before police. It was

stated by him that the head of dead body was not recovered. It

was stated that a firing was made on his father in the year 2004

for which the court case is pending, where named accused were

Ahsan, Kamruddin, Alauddin, Nehali and Jareena Bibi. It was

stated that Nehali Mian was arrested through mobile. He denied

to have any previous enmity with Mohjim and Rewa.

18. PW-2 is Md. Moin Ansari, who is a seizure list

witness of recovered dead body. It was deposed by him that the

dead body of Tauhid Mian was found on search and knife

measuring length of one ft. was also found there. The dead body

was identified by him and others. He deposed that informant is

his co-villager and relative. He denied to depose falsely being

relative of informant/PW-9 and also that no signature was done

by him at Katoriya Police Station rather same was done at place Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

of recovery itself. He deposed that he is not the eye witness of

kidnapping.

19. PW-3 is Md. Kamruddin Ansari. He deposed to

be present, when headless dead body of father of the informant

was dig out. He also deposed to find one knife near the place of

recovery of dead body. He also deposed that dead body was

identified by Mubarak i.e. PW-9. It was stated by him that

several villagers of Mohalla were gathered on hulla/public

alarm. It was stated that police did not recorded his statement

and he is the younger brother of deceased Tauhid Mian and was

brought before the court by PW-9.

20. PW-4 is Rustam Ansari, who deposed that he

came to know on 20th January 2015 from the informant (PW-9)

at about 9:00 A.M. that his father Tauhid Mian is missing and

also made him request to accompanied him to search his father.

It was deposed that for 2-3 days they searched him in nearby

forest but did not find. Thereafter, they proceeded for west and

as they reached near to river they found that four dogs were

digging sand, which was stained with blood, where on direction

of Mubarak/ PW-9 the digging work was started by Moin and

Manjur and they found a dead body without head, leg and hand

and near to said body a knife was also there. Dead body was Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

pulled up from dig. It was said by Mubarak/ PW-9 that it is the

dead body of his father. It is deposed by him that he has no

knowledge regarding this case and is not in inimical terms with

any of the accused. It was stated that his statement was not

recorded by police.

21. PW-5 is Tasleem Ansari. He also deposed on

same line as of PW-4 and as such same not required to be

repeated for the sake of convenience. It was stated by him also

that he has no knowledge about the present occurrence, but

deposed to be a witness of digging process of recovery of dead

body and its parts.

22. PW-6, is Sharafat Ansari, for whom, deceased

was proceeded in early morning on 21.01.2015, the day was

Wednesday and it was deposed that whenever deceased

proceeded for him in past, he was informed in advance

regarding his visit, but on that day deceased not turned up till

evening and thereafter he called up his elder brother Mubarak

Ansari (PW-9) but his phone was switched off, thereafter he

thought that the persons who fired earlier on his father might

killed him this time, thereafter his elder brother came to Banka

in search of his father but could not trace him and returned on

23.01.2015. Five persons went to Suiya Police Station as to Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

lodge the case, where mobile number of his father i.e.

9931150303 was given to SHO and thereafter they returned

home. It was deposed that when he returned to home, the

brother-in-law of his brother Riyasat, namely, Akhtar Ansari

asked about his missing father where he said that the persons

who earlier fired bullet on their father killed him and on said

reply, it was said by Akhtar Ansari that while he was going to

market he saw his father having bag in his hand and when he

asked him to accompanied with, he denied and as he moved

ahead he found Ahsan Mian, Kamruddin Mian and Alauddin

Mian sitting beside road in a ditch and also found Nehali Mian

accused-appellant and Jareena Khatoon W/o Ketki, were also

there in a road side dig. It was deposed that police informed him

that they got trace of mobile and on such information his elder

brother Khurshid Ansari went to Police Station along with one

Ekranul and Jakir Mukhiya and Kaijam Mukhiya. It was

deposed that from where they went together to Majhlatila,

where it came to their knowledge that mobile is at the residence

of Mousim, which was identified by his younger brother Abid

Ansari and he took it in his custody. It was deposed that one

lady said that why you are searching here and there, you might

get it in river side and on said information, they proceeded Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

towards river side, where they found dogs were digging soil.

They went together along with 25-30 persons and found blood-

stained sand over there and on digging sand, the dead body was

found, mark of bullet was there, head of his father could not

traced. They identified his father out of black spot which was

just below the knee. It was deposed by him that the sniffer dogs

firstly brought to the place where hands and legs were recovered

and thereafter dogs were sat on the Darwaja (outhouse) of

Mousim, Nehali Mian and Rewa Mian. He identified accused

Mousim, Nehali and Kamruddin including appellant-accused

Nehali Mian before the learned trial court.

22.1. On cross examination, it was deposed by him

that his father was 'Ameen' (A person doing land measurement).

It was stated that he usually remains outside home in his

professional capacity. It was stated that since last ten years he

had litigating terms with Ahsan and Kamruddin which was

lodged by his father. It was stated that he has five brothers,

namely, Mubarak (PW-9), Adalat (PW-11), Riyasat (not

examined), Sharafat Ansari (PW-6) and Abid Ansari (PW-1). It

was stated that he was examined by police on 24.01.2015 and at

that time all five brothers were there. It was stated by him that

they came to the conclusion out of suspicion that persons who Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

attempted earlier to kill his father committed his murder. It was

stated that dogs were came on 26.01.2015 and he also followed

said sniffer dogs along with several peoples. He denied to

depose falsely. It was stated by him that he was not given

statement before the police rather it was given by his elder

brother.

23. PW-7 is Manjoor Ansari, who is also one of the

witness of digging process of the dead body of the father of the

informant, where he deposed that he came to know from

Mubarak Ansari (PW-9) that same is of his father, save and

except this, he has no knowledge regarding the occurrence.

24. PW-8 is Dr.Mukesh Kumar who deposed that

while he was posted at Sadar Hospital, Banka on 26.01.2015 he

was conducted the post-mortem examination of Tauhid Ansari

and during the said examination he found that skull was missing

from the body of the deceased. Thereafter, he found the

following antemortem as under:

(i) Skull missing from level of C/3 vertebra.

(ii) Incised wound about 12 cm at the level of C/3

vertebra.

He deposed that both hands were separated from the

body at the elbow joint. Both legs were separated from the body, Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

right leg separated from right knee and left leg separated from 3

cm. below the knee. Abrasion right side chest size 3" x 2"

approximately. On dissection, the doctor found fracture of right

4th, 5th, and 6th rib, distanded abdomen, liver, spleen, kidney

failed. Heart both chambers were empty, large gutt stoop,

urinary bladder empty, small gutt gas. The doctor deposed that

the time since death was 30-48 hours. This witness further stated

that the cause of death is due to shock and haemorrhage caused

by above noted injuries by sharp cut weapon. He further stated

that the post-mortem report is in his pen and bears his signature.

24.1. On cross examination, Dr.Mukesh Kumar (PW-

8) deposed that time since death as noted is approx. 30-48

hours, but it is not definite. Particular weapon is not mentioned

in post-mortem report. It was sharp cut weapon. He deposed that

no colour of injury is mentioned in P.M. report. He stated that he

had not mentioned about poisoning etc. in P.M. report. All

injuries are of sharp cut weapon. The dead body was brought by

chowkidar of Suiya O.P. for post-mortem but P.S. Case Number

was not mentioned. He lastly submitted that this is not true that

this post-mortem report is not as per medical jurisprudence.

25. PW-9 is Mubarak Ansari, who is the informant of

this case. The said witness deposed before the learned trial court Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

that the occurrence is of 21.01.2015, when his father proceeded

for Banka at about 6:00 AM but did not return home till late

evening and on so he called over his mobile phone, but same

was found switched off. It was deposed that thereafter he along

with family members tried to trace out his father but did not find

any clue about his whereabouts and thereafter they thought that

people, who in the year 2004 fired upon his father might had

killed him this time. On 22.01.2015, he came to Banka and

contacted his lawyer, to whom his father usually visit, but it was

said that his father did not came to visit the said advocate and,

thereafore, on next day i.e. 23.01.2015, he went to Suiya Police

Station (OP) at about 9:00 AM and lodged Sanha regarding

missing of his father, where it was stated that Ahsan Ansari,

Alauddin Ansari and Kamruddin Ansari killed his father. It was

asked him by police that how he came to know about the

accused persons, he replied, as cases are pending between them.

It was deposed that thereafter police officer asked him to

provide the mobile number of his father. But he said to supply it

by 4:00 PM. He returned back to his home from police station

somewhere between 10:00 to 11:00 AM. Thereafter, the brother-

in-law of his brother, namely, Akhtar Ansari came to him to ask

whereabouts of his missing father, where he replied that up-till Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

now there is no clue, then, Akhtar Ansari said that on same day

near Katoriya while he was going, he found his father was also

going by foot dressing in Kurta-Payejama, having one bag in

his hand and when he asked him to accompanied him, he

denied. When he moved further he found three persons were

sitting together namely, Alauddin, Kamruddin and Ahsan. After

moving some distance further he found Nehali Mian (accused

appellant) and wife of one Kerki namely, Jareena Bibi together.

When he asked them that what they are doing here, they replied

him to go as they are doing their own work. It was deposed that

in evening at about 4:00 PM he was informed by Police

Inspector that he traced out the mobile number. At about 4:00

PM Police Inspector called one Dr. Khurshid of his village over

mobile phone as to bring Mubarak (self) along with him as

given mobile number was traced out. Thereafter, they went

together at Police Station, where phone numbers were given to

Khurshid by police and asked him to dial. On dial, phone was

picked up by Jareena Bibi and replied that mother of Samima is

talking and also replied that she is the wife of Kerki. Thereafter,

it was told by Police Inspector to call her to police station. The

second call was picked up somewhere in Majhalatila and the

person who picked up said phone replied that he is Mousim. Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

When it was asked by Police Inspector that who is the holder of

said mobile, it was replied that same belongs to one Nehali

Mian (accused appellant). It was deposed that on the said

information, they proceeded for traced mobile holder and when

they reached there, one child ran away with said mobile number

from the house of Mousim, who was caught hold by the younger

brother after chasing for a short distance and snatched mobile

from his hand and same was handed-over to the Police

Inspector. The SIM of mobile was removed. Dr. Khurshid again

dialled on said mobile number but it was found switched off and

thereafter it was opened and found that it was without any SIM

card. Subsequently, the SIM was also handed over to Police, It

was deposed that from the house of Mausim they came to the

house of Jareena Bibi, where Police Inspector discussed about

the said occurrence for about one hour with Jareena Bibi and

said that he will arrest her after availability of lady constable. It

was deposed that before arrival of lady police Jareena Bibi ran

away from there. It was deposed that after two days they went to

Dhanaghat in search of dead body and found that dogs were

digging sand in river bed and found blood was spread over

there. They also start digging the sand and found chopped

hands, they also found on further digging near to first place, Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

chopped legs and headless body of his father. They found mark

of bullet injury on chest of his father. Thereafter, police taken

the dead body parts for post-mortem and on next day i.e. on 26 th

January, 2015 sniffer dogs were brought at the place of recovery

of the dead body. Dogs also went up to the place from where the

knife was recovered. He deposed to lodge the present case and

identified his signature over fardbeyan which was exhibited as

Exhibit-1/1, before the learned trial court. He also identified

accused persons including the appellant-accused before the

learned trial court.

25.1. On cross examination, it was stated that phone

was dialled to Mohjim. He is not stated to be an eye witness of

the occurrence. Mobile set was of Nehali Mian (appellant-

accused). It was stated that in support of ownership of mobile,

no paper was produced by him to police. It was stated that the

mobile which was seized by police was witnessed by his

younger brother. It was stated that his father was professional

Ameen and he has no idea about his professional engagement. It

was stated specifically by him that from 20.01.2015 to 28 th

January 2015, his father went for Banka and Bhagalpur for

measurement of land. It was stated by him that he named Ahsan

and Kamruddin in his Sanha as to commit murder of his father, Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

where dead body of his father was recovered on 25.01.2015. He

stated to give his statement before police on 25.01.2015. It was

stated that police came at the place of recovery, when he along

with other villagers already recovered the dead body parts of his

father. It was also stated by him that head of his father could not

recovered up-till now. There was no any tattoo on recovered

legs and hands but he stated that there was a black mark in left

leg. It was stated that at the first instance body was dig out and

thereafter hands and legs were found. It was stated that

Khurshid accompanied him while going to police station and he

dialled mobile from there which was supplied to him by SHO.

Phone number was traced on 23.01.2015. It was denied by him

to depose falsely against accused persons including appellant-

accused out of previous enmities which is continued since 1986.

26. PW-10 is Umashankar Kamat, who is first

Investigating Officer of this case and deposed to register Suiya

P.S. Case No. 20 of 2015 and also to record fardbeyan at the

place of occurrence itself which was sent by him to Katoriya

Police Station for its registration. He took charge of

investigation on his own and thereafter inspected the place of

occurrence. He described the place of occurrence as bed of

Barua river near to village Chandipira falls under Anandpur Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

Police Station, District - Banka. He deposed to recover a

headless dead body along with chopped hands and legs and

prepared panchnama. He also deposed to recover an iron made

knife, prepared seizure list accordingly and said recovered dead

body parts were sent for post-mortem examination to Banka and

recorded statement of witnesses. He also recorded re-statement

of informant (PW-9) and arranged sniffer dogs for investigation,

but could not trace out head of the deceased. He also stated to

lodge a Sanha in this connection on 23.01.2015, where mobile

number of deceased was given to him, during investigation

named accused persons were contacted over phone and to seize

said SIM card, a raid was conducted. It was stated by him that

mobile handset of deceased was recovered from the house of

Mousim Ansari. Thereafter, he was transferred and handed over

further investigation to then Incharge OP, namely, Raj Kapoor

Kushwaha. He identified forwarding note over fardbeyan which

was in his handwriting bearing his signature and the same was

exhibited before learned trial court as Exhibit-4. He also

identified the signature of SHO Katoriya namely, Surendra

Kumar as to lodge formal FIR which on his identification

exhibited as Exhibit-4/1. He also identified his signature and

handwriting of seizure list, which on his identification, exhibited Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

as Exhibit- 5 and 5/1, before the learned trial court. He also

identified his handwriting and signature over inquest report,

which, on identification, exhibited as Exhibit-6, before the

learned trial court.

26.1. On cross examination, it was stated by him that

informant is not an eye witness of the occurrence. It was further

stated that no witnesses are eye witness of the occurrence and he

could not trace out the head of the deceased during

investigation. It was also stated that no DNA test was conducted

by him and also the blood-stained knife was not sent for

forensic examination as to match the recovered knife with the

dead body of the alleged deceased. Recovered knife was not

produced before the court. It was stated that informant

supported the pending litigation between the accused persons

during the investigation. He was again recalled as witness on

11.05.2022, where he stated that mobile no. 9931150303

belonged to deceased. It was stated by him that mobile no.

8969578043 belonged to Jareena Bibi where Call Details Report

(in short 'CDR') support the conversation between these two

mobiles. It was stated that between 19.01.2015 to 21.01.2015

altogether 18 times conversation were made between these two

mobiles. It was stated that the SIM bearing No. 7759986379 Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

was inserted in mobile set of the deceased and also during

investigation it was found that said handset was in house of

Mousim Ansari of village Asorha which fall under police station

Chandan. These handset along with SIM 7759986379 were

seized on 29.01.2015 which is on the record. It was stated that

mobile no. 9931150303 belongs to deceased whereas

7759986379 belongs to Nehali Ansari(appellant-accused). It is

stated that it is thus clear that after kidnapping and committing

murder the mobile set of deceased came to Nehali Ansari

(appellant-accused) from where it was seized. It was stated that

mobile no. 9973905224 belongs to Md. Ahsan Ansari. It was

stated that mobile no. 8969578043 and CDR of mobile nos.

8969578043 and 9973905224 were also obtained from M/s

Bharti Airtel which is computer generated. The said CDR is in

22 pages, which was exhibited as Exhibit - 'P-7'/PW-10.

26.2. On cross examination regarding above aspect, it

was stated that when he deposed earlier on 19th June, 2018 in the

present case, at that point of time also, CDR was available, but

no question was asked on that day on this point. He denied to

conceal the aforesaid fact in earlier deposition. It is stated by

him that the entire conversation is prior to lodging of FIR. It

was also stated that two mobile handset were seized which is Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

not presently before him. It was also stated that SIM in issue is

also not before him. It was further stated that no separate seizure

list was drawn by him for seized SIMs. He categorically stated

that recording of voice conversation with mobile number of the

deceased bearing No. 9931150303 is not available. It was stated

that except certificate, entire CDR was collected by him during

investigation, where now certificate is available on record as

collected by another investigating officer. He denied to depose

falsely.

27. PW-11 is Md. Adalat Ansari, who deposed before

the court that the occurrence is of 21 st January 2015 when he

came to know from his elder brother Mubarak Ansari (PW-9)

who told him that please come home as their father was killed.

On the said information, he reached at his house on 22 nd January

2015 and started to trace the dead body where on 25.01.2015 the

dead body was found in bed of Barua river, where before

recovery of dead body a knife was also recovered. It was

deposed by him that the headless body was recovered from one

site whereas hands and legs were recovered from another site.

Head was not traced out. After giving said information, police

came over there and seized the body parts of the dead body. He

deposed that it was the dead body of his father where he found a Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

mark of bullet injury in his chest. He also noticed black mark in

leg which developed during course of time, out of offering

prayer during Namaz and on the said basis the dead body was

identified. He failed to disclose that how present occurrence

took place but deposed that he came to know from his brother

Mubarak Ansari (PW-9) that there was a land dispute between

his father and cousin brother. He identified accused persons

including the appellant-accused before the learned trial court.

27.1. On cross examination, it was stated by him that

he was working as 'Imam' in Sahebganj Masjid of Bhagalpur

where he went on last occasion before 15-20 days of the alleged

occurrence and returned back on the next day of occurrence. It

was stated by him that he has no any clue regarding as to who

committed murder of his father, rather same is in knowledge of

his brother Mubarak (PW-9). It was stated by him that his father

and father of Ahsan are own brother where his father was

working as 'Ameen'. It was stated by him that his father also

remained in judicial custody in connection with other case. It

was also stated by him that upon due deliberation, the present

case was lodged. He denied suggestion of learned counsel that

out of pending land dispute accused persons were named in the

present occurrence.

Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

28. PW-12 is Raj Kapoor Kushwaha, who deposed

that on 20.08.2015 he was posted as SHO of Suiya Police

Station and received charge of investigation of Suiya P.S. Case

No. 20/2015 from its earlier Investigating Officer, ASI

Umashankar Kamat and after receiving charge of investigation

on 09.12.2015, he had gone through the case diary and

thereafter he came to know that Mousim Ansari, who is not

named with the occurrence, was arrested on 29.1.2015, who

enlarged on bail by court on 31.03.2015. He also came to know

that on 15.09.2015, Kamruddin Ansari along with Nehali Mian

(appellant-accused) and on 20.11.2015 Ahsan Ansari

surrendered before the court. He submitted charge-sheet after

completing investigation through charge-sheet No. 54/2015 on

09.12.2015 under section 364, 302, 201, 120-B/34 of the IPC by

opening supplementary investigation against Jareena Bibi,

Alauddin Ansari and suspect Taiba Mian.

28.1. On cross examination, it was stated by him that

on the basis of earlier investigation he submitted charge-sheet

and he has no any personal knowledge about the alleged

occurrence.

29. At this stage, it would be apposite to take a

guiding note from the legal report of Hon'ble Supreme Court as Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

reported through Sharad Birdhi Chand Sarda (supra), where

the principles of "Panchsheel" was laid down, regarding a case

rest on circumstantial evidence, which must required to be

established in such case (relevant paragraphs 152 to 154), which

are as under:-

152. "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established.

There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra (') where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

30. From the above noted discussion of evidence as

surfaced during trial, it can be said without hesitation that the

present case is rest upon circumstantial evidence. None of the

prosecution witnesses including informant (PW-9) namely,

Mubarak Ansari are claiming to be an eye witness of the

occurrence and they are not so. We are alive with position of

law that motive in circumstantial case is an important aspect

though not conclusive. In the present case, PW-1, who is Abid

Ansari is son of deceased Tauhid Ansari. PW-6 namely, Sharafat

Ansari is also son of the deceased. PW-9 (informant) and PW-

11, who are also son of the deceased, deposed before the trial

court that they are in inimical terms out of land dispute with the

accused persons namely, Ahsan Ansari, Kamruddin Ansari, who

are their cousin brothers. None of the witnesses supported that

appellant-accused, namely, Nehali Ansari was also in inimical

terms with the deceased father of the informant and, as such, it

can be said safely that prosecution has failed to established

motive for crime in question against the appellant-accused.

31. It appears from the deposition of witnesses Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

including the informant (PW-9) that deceased left his house at

about 6:30 AM on 21.01.2015 and when he did not return back

till evening, a self-search was made by his sons and relatives i.e.

PW-11, PW-6 & PW-9, sanha of the said effect was given after

two days of missing i.e. on 23.01.2015 to the Station House

Officer of Suiya Police Station at about 9:00 AM and on the

same day mobile number of deceased i.e. 9931150303, was also

given to police which was put on surveillance, where during the

course of investigation, it appears that mobile set of deceased

was used with SIM bearing No. 7759986379, which was issued

in favour of appellant-accused namely, Nehali Ansari. It appears

from deposition of the informant/PW-9 and also from PW-1 that

said mobile was recovered from the house of one Mohsim from

where it was taken by a child which was snatched by younger

brother of PW-9 and after snatching the mobile set from the said

unknown child it was handed over to Bara Babu (Police

Inspector). From the deposition of informant (PW-9), it appears

that mobile phone was recovered somewhere on late evening of

23.01.2015. From deposition of doctor who conducted post-

mortem i.e. PW-8, it appears that death might cause before 30-

48 hours from the time of conducting post-mortem which was

conducted on 26.01.2015 at about 1:10 AM. If the same be Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

taken into consideration then the alleged murder likely to

committed somewhere after midnight of 24.01.2015 and if the

same be taken into consideration then it appears that by that

time when recovery of mobile was made deceased might alive.

32. Akhtar Ansari, who had lastly seen the deceased

on 21.01.2015 on way of Katoriya and also noticed

appellant/accused waiting ahead with co-accused at isolated

place, on same way, was not examined before the learned trial

court. PW-1 and PW-9 claimed to remain together with the

police but as per deposition of PW-1, it appears that SHO

provided mobile numbers to one Dr. Khurshid (not examined

before the trial court) at Ladania Chowk and asked to dial,

whereas, as per informant (PW-9), it appears that he went to

police station along with Dr. Khurshid of his village then it was

asked by SHO to dial said number from police station itself

which appears to give a doubtful impression regarding recovery

of mobile and SIM of appellant/accused.

33. The proper identification of deceased also appears

doubtful in want of head of deceased. PW-1, PW-6, PW-9 and

PW-11 are sons of deceased and were present at place of

recovery of dead body and its part. PW-9, claimed to identify

dead body of his father by taking notice of mark of bullet injury Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

on his chest, whereas PW-11 identified dead body and its part

from black mark near to knee. Furthermore, PW-2, who was

also present there did not named any person, who identified

dead body, rather it was deposed that people present over there

identified dead body.

34. PW-1 stated in his cross-examination that he

came to know regarding murder of his father first of all by

Akhtar Ansari who is none but the brother-in-law of his brother

Riyasat Ansari (both not examined before the court). Whereas

informant (PW-9) deposed in his cross-examination that as one

attempt for murder was made in the year 2004 on his father, he

thought that accused persons of the said case might have killed

his father and on the basis of said suspicion he named appellant-

accused and other accused persons in the present case. From the

deposition of PW-10, who is the investigating officer of this

case, it appears that mobile number 7759986379 was used from

handset of deceased which belongs to appellant-accused. It also

appears that said mobile with SIM was seized on 29.01.2015 as

per deposition of PW-10, but from deposition of PW-9 it

appears that the said mobile was recovered from the house of

Mousim on 23.01.2015, somewhere in late evening. It appears

from Exhibit marked as Exhibit 'X/1' that mobile no. Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

7759986379 was inserted with handset having IMEI No.

3536650568444590 which was of deceased mobile, on

22.01.2015 at about 12:14 PM. If this aspect be taken into

consideration then certainly the murder of father of the

informant was committed before 12:14 PM on 22.01.2015,

which also not appearing convincing in terms of time of death

as suggested by PW-8 namely, Dr. Mukesh Kumar.

35. It is also appearing from the deposition of PW-9

that from 20.01.2015 to 28.01.2015 his father visited Banka and

Bhagalpur and did not went anywhere in connection of land

measurement. He specifically stated this part in paragraph '11'

of his cross-examination and if this aspect be taken into

consideration then the entire prosecution story fails which

suggests that deceased father of the informant left his house on

21st January 2015. PW-2, PW-3 and PW-4 are appearing seizure

list witnesses and appears to be present on the site from where

the dead parts of the body of father of the informant were

recovered, except that, they specifically stated before the trial

court that they had no knowledge about the occurrence. Same is

the position of PW-4 Rustam Ansari, PW-5 Taslim Ansari and

PW-7 Manjoor Ansari also.

36. Hence, from aforesaid facts, it appears even Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

accused appellant was not found 'last seen' with the deceased,

motive of previous enmity also not established against this

appellant accused namely, Nehali Mian and further those

accused persons against whom previous enmity was deposed

before the court were already acquitted by the learned trial court

by disbelieving the version of prosecution. It appears that the

only incriminating circumstance which appears against this

appellant accused that his mobile SIM having No. 7759986379

was used once in handset of deceased which appears to be used

on 22.01.2015 as per record. Having only circumstance, the

conviction as recorded by learned trial court is not appearing

convincing on its face. It is an admitted position that knife and

body parts were recovered by self-efforts made by the informant

and his relatives and same were not appearing recovered on

instance of appellant-accused. Even seized handset in which

SIM number of appellant-accused was found to be used

recovered from the house of one Mousim. Admittedly, in view

of deposition of PW-10, knife, which was recovered from place

of occurrence, and dead body, were not sent for DNA test or

forensic examination.

37. Hence, in view of the above factual discussion

and legal ratio as discussed above in the matter of Sharad Patna High Court CR. APP (DB) No.365 of 2023 dt.12-10-2023

Birdhi Chand Sarda (supra) it cannot be said that non else

than the appellant/accused Nehali Mian had committed murder

of the father of informant.

38. Hence, the appeal stands allowed.

39. The impugned judgment of conviction dated

28.02.2023 and the consequent order for sentence dated

02.03.2023 passed by learned 1st Additional District & Sessions

Judge, Banka in Sessions Trial No. 642/2016 arising out

Katoriya Suiya P.S. Case No. 20 of 2015 are set-aside. The

accused/appellant is acquitted of the charges levelled against

him. He is directed to be set at liberty forthwith unless his

detention is required in any other case.

40. Lower Court Records, if any, be sent back to

learned trial court along with the copy of this judgment. Fine, if

any, paid by accused/appellant in furtherance of order of

sentence, be refunded to him immediately.

(Vipul M. Pancholi, J.)

(Chandra Shekhar Jha, J.) Rajeev/-

AFR/NAFR                  NA
CAV DATE                  NA
Uploading Date        18.10.2023
Transmission Date     18.10.2023