Patna High Court
Munna Ansari vs The State Of Bihar on 19 January, 2024
Author: Alok Kumar Pandey
Bench: Ashutosh Kumar, Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.229 of 2023
Arising Out of PS. Case No.-3 Year-2019 Thana- MAINATAND District- West Champaran
======================================================
MUNNA ANSARI SON OF LATE KALIM ANSARI @ LATE KALIM
MIAN R/O Village - Mainatand, P.S.- Mainatand, District - West Champaran.
... ... Appellant/s
Versus
The State of Bihar Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Bimlesh Kumar Pandey, Adv.
Mr. Krishna Kant Pandey, Adv.
For the Respondent/s : Mr. Bipin Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY)
Date : 19-01-2024
This appeal is directed against the judgment of
conviction dated 06.02.2020 and order of sentence dated
24.02.2020 passed by learned 1st Additional Sessions Judge- cum-
Special Judge, (SC/ST/POCSO), Bettiah, West Champaran in
Mainatand P.S. Case No. 03 of 2019, CIS No. 02 of 2019 whereby
the appellant has been held guilty for the offences punishable
under Sections 376(D), 302 of the Indian Penal Code (hereinafter
referred to as 'IPC') and Section 4, 6 of Protection of Children
from Sexual Offences Act (hereinafter referred to as 'POCSO Act.')
and has been sentenced to undergo life imprisonment and fine of
Rs. 50,000/- under Section 302 of the IPC and in default of
payment of fine, the appellant has been directed to suffer further
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
2/21
five years imprisonment; 20 years rigorous imprisonment and fine
of Rs. 50,000/- under Section 376(D) of the IPC and in default of
payment of fine, the appellant has been directed to suffer further
four years imprisonment; and life imprisonment and fine of Rs.
50,000/- under Section 6 of the POCSO Act and in default of
payment of fine, the appellant has been directed to suffer further
five years imprisonment. The sentences have been ordered to run
concurrently.
2. The names of the victim and PWs-1 and 5 (who are
victim's mother and father) have been concealed in the judgment
to protect their prestige and dignity.
3. According to written report of informant (PW-5), the
occurrence is of 01.01.2019 at about 8:00 PM for which
information was given to the S.H.O. Mainatand police station on
02.01.2019
at 9 hours and immediately whereafter FIR was
registered.
4. The prosecution case as stated by the informant (PW-
5), in brief, is that on the fateful day i.e. 01.01.2019 at about 8
PM, informant's daughter aged about 12 years went outside the
house in the east direction to answer her nature's call after taking
meal. At the relevant time, informant and his family members were
warming their hands by fire heat at the gate. In the meantime,
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
Anirudh Sah (PW-2) came to the house from Mainatand and it was
stated by him that two persons made to escape towards east field
after having seen him. One person was identified as Munna Ansari
(appellant) whereas other person was not identified. After having
heard the said fact, informant (PW-5) made query to his wife
(PW-1) regarding returning of her daughter from nature's call but
when victim was not found at the house, search was made by the
informant (PW-5) and his family members towards the east field
and other places. At last, her dead body was found towards the
west of haystack of Ramchandra Patel. It was found that after
having committed rape upon the victim, her neck was pressed after
inflicting injury on her mouth.
5. On the basis of written report of informant (PW-5),
Mainatand P.S. Case No. 03 of 2019 dated 02.01.2019 was
registered under Sections 376(d), 302 of the IPC and Section 4/6
of the POCSO Act. Routine investigation followed. The statement
of witnesses came to be recorded and on completion of the
investigation, the appellant and other were charge-sheeted under
the aforesaid sections. The learned Trial court was pleased to
frame charges under Sections 302, 376(D) of the IPC and Sections
4, 6 of the POCSO Act. Charges were read over and explained to
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
the appellant and other to which they pleaded not guilty and
claimed to be tried.
6. In order to bring home guilt of the accused persons,
prosecution has examined altogether seven witnesses. PW-1
(mother of the victim/deceased), PW-2 Anirudh Sah, PW-3
Chandeshwar Sah, PW-4 Ankur Sah, PW-5 (informant cum father
of the victim/deceased), PW-6 Ramvinod Singh(I.O.) and PW-7
Dr. K.M.P. Parve.
Prosecution has relied upon following documentary
evidence on record:-
Ext. 1- Thumb impression of informant on written
report.
Ext. 2- Thumb impression of informant on seizure list.
Ext. 3- Endorsement on written statement.
Ext. 3/a- Signature of I.O. on endorsement.
Ext. 4- Signature of I.O. on FIR.
Ext. 5- Inquest report.
Ext. 5/a-Signature on the inquest report.
Ext. 6-Seizure list.
Ext. 6/a- Signature on the seizure list.
Ext. 7-Second seizure list.
Ext. 7/a Signature on the second seizure list.
Ext. 8-Postmortem report.
Ext. 8/a-Signature of doctor on the postmortem report.
Ext. 9-FSL report.
Defence of the appellant as gathered from the line of
cross-examination of prosecution witnesses as well as from the
statement under Section 313 of the Cr.P.C. is that of total denial.
However, the appellant did not enter into defence.
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
7. After hearing the parties, the learned Trial court
convicted the appellant and sentenced him as indicated in the
opening paragraph of the judgment. By the same impugned
judgment, co-accused Bullet Sah was also convicted and sentenced
under the aforesaid sections in the same manner.
8. We have heard Mr. Bimlesh Kumar Pandey, the
learned counsel for the appellant at sufficient length of time.
Following submissions have been made on behalf of learned
counsel for the appellant:-
Learned counsel for the appellant submitted that
appellant's conviction is based without having any cogent
evidence. He further submitted that it appears from the initial
version of written statement that none is the eye witness of the
occurrence. It has been further submitted that out of seven
prosecution witnesses, PWs-2, 3 and 4 have been declared hostile
at the instance of the prosecution. Only PW-5 who is the informant
and his wife (PW-1) supported the prosecution case but the
statement of PW-5 adduced during the course of trial is quite
inconsistent with his initial information given through written
statement. In the initial information, the informant (PW-5) stated
that PW-2 had seen Munna Ansari (appellant) and another person
fleeing away in the eastern outskirts of the village but the
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
informant during course of cross examination deposed that he
himself had seen Munna Ansari (appellant) fleeing away. He
further submitted that in the light of said contradictory statement
of informant (PW-5), his statement is neither reliable nor
trustworthy. Learned counsel further submitted that PW-1 is not
eye witness of the occurrence as she has also not seen any person
going alongwith the victim. Learned counsel further submitted that
clothes of appellant and deceased were seized and sent to F.S.L.
for examination alongwith viscera of the victim but DNA profiling
did not match with the appellant. He further submits that
confessional statement of the appellant has been recorded which
has no evidentiary value in the eye of law and nothing was
recovered on the basis of confessional statement of the appellant.
The appellant was apprehended only on the basis of suspicion and
except suspicion, there is nothing on record to connect the present
appellant with the alleged occurrence. In the light of aforesaid
facts and circumstances, there is no connecting material to
establish the link that appellant is in any way connected with the
alleged occurrence. Learned counsel of the appellant further
submits that co-convict Bullet Sah, on the same set of evidence
suffered same quantum of sentence under the aforesaid sections,
stands acquitted by co-ordinate Division Bench of this Court vide
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
Cr. Appeal (DB) No. 443 of 2020 and hence, appellant also
deserves same treatment.
9. Mr. Bipin Kumar, the learned Additional Public
Prosecutor representing the State submits that the appellant is seen
and identified by Anirudh Sah (PW-2) as same is stated in initial
version of PW-5 (informant) given through written statement. He
further submits that informant has also reiterated the statement of
initial version of prosecution story during adducing the evidence
and same is corroborated and supported by PW-1 in her evidence.
The postmortem report supports the initial version of prosecution
story. In this way, impugned judgment and order passed by the
learned Trial court is justified and legal and no interference is
needed.
10. We have perused the impugned judgment, order of
Trial court and Trial court records. We have given our thoughtful
consideration to the rival contention made on behalf of the parties
as noted above.
11. It is necessary to evaluate, analyze and screen out the
evidence of witnesses adduced before the Trial court in the light of
the offences punishable under Sections 376(D), 302 of the IPC and
Section 4/6 of the POCSO Act.
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
12. PW-1 is mother of the deceased. She reiterated the
version of written statement regarding time of occurrence. She
deposed that she was at her house alongwith children at the
relevant time. When query was made by her husband about the
victim, she told that victim went to ease herself in the field.
During course of examination-in-chief she made statement that
during course of search informant's elder brother pointed out that
the appellant and Bullet Sah were being seen in running condition
but in initial version of story of prosecution, the search regarding
whereabout of the deceased was initiated only after suspicious
escape of appellant and other. From version of PW-1, during
examination-in-Chief it clarifies that without prior suspicious
running of the appellant and other, search was made to find out the
victim which is totally inconsistent with the initial version of
prosecution story wherein search was made after receiving
information of suspicious escaping of the appellant and other. In
this way, even her statement is not quite consistent with the story
of prosecution which forms the basis of written statement. In this
way, suspicious escaping of the appellant and other is not found to
be reliable and authentic as she has stated that during course of
search the informant's elder brother gave information about the
suspicious activity of the appellant and other. On the point of
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
recovery of dead body from the haystake of Ramchandra Patel was
consistent with the initial version of story of prosecution. During
course of cross-examination, she has clearly stated that she has not
seen the occurrence through her own eye and her daughter went
alone outside for easing herself and she has not seen any person
going alongwith the victim. In this way, the statement of PW-1 can
be seen as a hearsay witness and even she has not seen the
appellant going alongwith the victim and her statement is neither
reliable nor authentic to base the conviction of the appellant.
13. PW-2 (Anirudh Sah) has stated that at 8.00 PM he
was returning from Mainatand and he had seen the appellant and
other to whom he did not identify, escaping away from haystack.
From initial version of prosecution story, his statement is relevant
only to the extent that he has seen the appellant and other in
escaping away after seeing this witness. But during examination-
in-chief, he made quite different statement from initial version that
he saw the appellant and other escaping away from haystack of
Ramchandra Patel. PW-2 has been declared hostile as he has not
supported the case of prosecution but his statement regarding
suspicious activity of the appellant and other is quite inconsistent
when it is found in initial version that he has seen escaping away
the appellant and other after seeing the PW-2. It is quite obvious
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
that the dead body was recovered near haystack of Ramchandra
Patel. In that situation, PW-2 has made improvement in the
statement that he has seen the suspicious escape of the appellant
and other from the place where the dead body was recovered. In
both way, even prosecution has declared the statement of PW-2 as
hostile and his statement with regard to the suspicious escape of
the appellant is also not authentic or not reliable as he has made
statement which suits the prosecution story in case of the
appellant.
14. From the evidence of PW-3 Chandeshwar Sah and
PW-4 Ankur Sah it is crystal clear that they are not eye witness of
the occurrence and they have not supported the case of prosecution
and their evidence is of no relevance to prove the prosecution case
and they have been declared hostile by the prosecution.
15. PW-5 is the informant and father of the victim
(deceased). He deposed that the victim was aged about 12 years at
the time of alleged occurrence. His statement regarding time of the
occurrence is quite consistent with the initial version. He has
reiterated specifically and categorically that the victim went to
ease herself in field but the statement of the PW-5 during
examination-in-chief is quite inconsistent regarding the search of
victim. During initial version of prosecution story, he has stated
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
that search was made when information was given by PW-2
Anirudh Sah that he saw the appellant and other escaping away
after seeing PW-2. But during examination-in-chief he stated that
search of his daughter began when she did not return in time. He
made bald statement which has no connectivity with the early
version given through written statement that during course of
search, Anirudh Sah who was moving towards market, has stated
regarding escaping of the appellant and other. The statement of
PW-5 on the issue of search was quite inconsistent with the initial
version of prosecution story as search was initiated on the
statement given by Anirudh Sah regarding escaping of the
appellant and other. During examination-in-chief, he stated that
search was initiated as the victim did not return in time and during
course of search, information was given by Anirudh Sah regarding
escaping of the appellant and other. In this way, the statement of
informant (PW-5) regarding initiation of search of victim are quite
divergent at the time of initial version of written statement and that
of evidence adduced during trial. At one occasion, he stated that
initiation of search of victim was made at the information given by
PW-2. At another occasion search of victim was initiated when she
did not return in time after easing herself. He has specifically and
categorically supported the story of prosecution on the point of
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
recovery of the dead body of the victim from the haystock of
Ramchandra Patel and found injury on cheek, chest and lip. In this
way, he has supported that the victim was killed after committing
rape upon her. During cross-examination, he has stated that he has
himself seen the appellant running away and he also stated that the
appellant is the driver of his brother. In this way, statement of the
informant that he has himself seen the appellant in running
condition is quite inconsistent with the story of prosecution. His
statement during examination-in-chief has been made in order to
suit the prosecution evidence. He has not seen the occurrence. His
statement regarding the initiation of search of the victim was not in
consonance with the initial version of prosecution story and he has
also admitted that victim went outside the house alone for easing
herself and no one has been seen going towards the victim and he
has admitted that there was darkness in night when his brother
gave information at 8.00 PM and there is no source of light to
identify the appellant in night and even the initial version of
prosecution story is taken into account, then question arises how
the person in running condition can be identified by other without
hearing the voice in darkness. Prudently and pragmatically, it is
difficult to identify a person in dead silence of night only on the
basis of running condition of the appellant. Pragmatically, it is
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
impossible to identify a person in running condition in darkness.
From perusal of the evidence of PW-5, it is crystal clear that he has
deposed before the court to frame the charges against the appellant
in order to prove the prosecution case.
16. PW-6 (Ramvinod Singh) is Investigating Officer of
this case. He took charge of investigation of this case on
02.01.2019. During course of investigation he prepared inquest
report of the deceased (Ext.-5) which indicates that after having
committed rape upon the victim, her neck was pressed after
inflicting injury on her mouth. He has also recorded the re-
statement of the informant, his wife and other witnesses. He
submitted charge-sheet against the appellant and he got the
postmortem of the victim conducted. The statement of PW-6 (I.O)
suffers from serious inherent defects. He is not a factual witness
rather he is an official witness. He has not stated that statement of
witnesses of the inquest report was recorded after how much time
and how he has mentioned that Anirudh Sah (PW-2) is the eye
witness. Even Anirudh Sah (PW-2) has not seen the occurrence
which is clear from initial version of prosecution story. In this way,
his investigation suffers from inherent defects.
17. PW-7 Dr. K.M.P. Parve conducted the postmortem
examination on the dead body of victim/deceased and the
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
postmortem report indicates incident of sexual assault on the
victim before she died of asphyxia, as a result of throttling and
time elapsed since death was within 24 hours.
18. From perusal of record, it is found that inner
garment of the deceased and an inner lower body warmer of the
appellant was seized and sent for forensic examination to the
Forensic Science Laboratory. The result of the Forensic Science
Laboratory reads as under:-
"DESCRIPTION OF ARTICLES
CONTAINED IN PARCELS.
1. The old dirty blue kachhiya marked 'A'
bore reddish brown stains at places. It also bore greyish
white stains which were stiff to feel and which produced
characteristic bluish white fluorescence in ultra violet
light. The kachhiya was said to be of deceased.
2. The old dirty maroon colour inner lower
body warmer-paizama marked 'B' bore brownish stains.
It also bore greyish white stains which were stiff to feel
and which produced characteristic bluish white
fluorescence in ultra violet light. The paizama was said
to be of appellant Munna Ansari.
RESULT OF EXAMINATION
1. Blood has been detected at places in the
exhibit marked 'A'.
2. Semen has been detected in each of the
exhibits marked 'A' and 'B'.
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
3. Blood could not be detected in the
exhibit marked 'B'.
4. Serological report on origin and group
of blood and semen would follow.
5. Opinion on other point is not possible.
FSL report clearly indicates that appellant is not in any
way connected with the alleged occurrence.
19. After analyzing the evidence of the present case, we
find that this case is not based on direct evidence as there is no eye
witness account which is evident from FIR itself. PW-5 who is
narrator of initial version of written statement has unfolded the
story of prosecution in a sequence of events. In the first sequence,
he reveals that the victim left the house for easing herself alone
and no one is seen going alongwith her and in same breath, it is
told by the informant that Anirudh Sah (PW-2) informed about the
suspicious escaping of the appellant and other after seeing the
Anirudh Sah (PW-2) and on the basis of said information, search
was made to find out the victim and her dead body was found at
the haystack of Ramchandra Patel.
20. From the aforesaid narration of initial version, it is
clear that no one is eye witness of the alleged occurrence. But
when we scrutinize the evidence of PW-1 and PW-5, we find that
PWs 1 and 5 have improved their case in order to make their
depositions fit in the scheme of the prosecution version put forth
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
before the trial. On the issue of search to find out the victim, the
statement of both witnesses are quite inconsistent with the story of
prosecution. They have already stated that both are not eye witness
of the alleged occurrence and they have also not seen anyone
going towards the victim. Then the question of raising finger
against the appellant is merely a ball park assessment against the
appellant. Their evidence are full of infirmities and imperfection
which strike at root of prosecution story as they are the factual
witnesses who have not been declared hostile. So far as the hostile
witnesses such as PWs 2, 3 and 4 are concerned, they have been
declared hostile because they have not supported the case of
prosecution as they have displayed mendacity in adducing the
evidence before the Court. From the perusal of initial version of
story of prosecution only PW-2 is the witness who has seen the
suspicious escape of the appellant but it has not been stated in
initial version that from which place the appellant and other have
escaped away. Only important fact came to fore that the appellant
and other escaped after seeing Anirudh Sah (PW-2). It has not been
revealed that the appellant and other were escaping from the place
where dead body was recovered but during course of adducing the
evidence Anirudh Sah (PW-2) has developed a new story that he
has seen the appellant and other escaping away from the place
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
where dead body was being recovered. One reason is quite
obvious that as to why PW-2 has made such statement, in order to
make his deposition fit in the scheme of prosecution version. In
this way, PW-2 has played suspicious mendacity to implicate the
appellant without any basis.
21. The postmortem report indicates incident of sexual
assault on the victim before she died of asphyxia, as a result of
throttling though which is quite in consonance with the initial
version of prosecution story. The FSL report does not show any
connectivity of the appellant with the victim. The I.O. (PW-6) has
not taken pain to find out the document regarding the age of victim
which is necessary under statutory provision of POCSO Act. He
has only collected Adhar card to determine the age of the victim,
as the age of the victim is determined under the statutory provision
of Section 94 of Juvenile Justice Care and Protection of Children
Act, 2015 which is lacking in the investigation of the I.O. (PW-6)
and prosecution has not taken pain to establish the age of the
victim under statutory provision though, it is self proclaimed by
the informant and other witnesses without any basis of legal
requirement that victim is of 12 years.
22. We can test the material of present case on the
circumstantial evidence as there is no eye witness account of the
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
present case but each circumstance (which may be relevant facts or
fact in issue) should be proved beyond reasonable doubt and the
proved circumstance must form complete chain. The chain of
circumstances must unerringly point towards the guilty of the
accused i.e. it should be only reasonable probability of causation
of offence. When we are analyzing the evidence of present case, it
is found that neither the statement of PW-1 nor the statement of
PW-5 or other witnesses indicate that the appellant was lastly seen
with the deceased at any point of time. From the version of PWs 1
and 5, victim was not seen with anyone when she left her house for
attending the natural call. In this way, even the present case is not
the case of last seen with the deceased.
23. In the present scenario, Section-3 of the Evidence
Act is relevant and first part of said section covers belief which
relates with direct evidence and the second part covers the
supposition relating to circumstantial evidence and Section-3 of
the said Act gives guidelines how to appreciate the direct evidence
and it is clearly mentioned how the fact is proved.
"Proved"-A fact is said to be proved when,
after considering the matters before it, the Court either
believes it to exist, or considers its existence so
probable that a prudent man ought, under the
circumstances of the particular case, to act upon the
supposition that it exists.
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
24. It is a clear cut guideline how to appreciate the direct
evidence and how to appreciate the circumstantial evidence. In the
first portion it is mentioned that a fact is said to be proved when,
after considering the matters before it, the court; either believes it
to exist and in the second part it is mentioned that how a prudent
man can make his supposition towards a particular case.
25. The words used in the section are-"a fact is said to
be proved when after considering the matter before it"- the section
does not warrant a court to consider only evidence. For example a
weapon of offence- a knife or gun- is not evidence, oral or
documentary but it still has to be considered by the court. Again
take for example, matters of which judicial notice can be taken.
These things are not to be proved, but are matters permitted to be
considered by the court. Now, Section 3 talks about belief of a
judge for a fact to be proved and second part of section talks about
probability of such a degree that a prudent man would act upon
supposition that the fact exists. Judge should step into shoes of a
prudent man. A common man would have many suppositions for
the cause of occurrence in a case which is based on circumstantial
evidence. There are several circumstances which are placed before
the court but it is only based on supposition. Then the court
evaluate each supposition when the court have ruled out the
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
suppositions, it is only such suppositions which has the highest
probability, should be relied upon and taken as a proved. That is
how the fundamental principle in respect of circumstantial
evidence evolves.
26. In this way, the present case is neither related with
direct evidence nor that of circumstantial evidence and the
prosecution has failed to prove its case beyond reasonable doubt
and the contention of counsel of the appellant is quite tenable and
sustainable that neither there was any eye witness nor was there
any material to prove the prosecution case beyond reasonable
doubt and the Trial court has failed to prove the evidence in correct
perspective.
27. Keeping in view all the facts and the discussions
made above, impugned judgment of conviction and order of
sentence are hereby set aside and appellant is acquitted of the
charges levelled against him.
28. The appeal stands allowed.
29. Let a copy of this judgment be dispatched to the
Superintendent of the concerned Jail forthwith for compliance and
record.
30. The records of this appeal be returned to the Trial
Court forthwith.
Patna High Court CR. APP (DB) No.229 of 2023 dt.19-01-2024
31. Interlocutory application/s, if any, also stands
disposed of accordingly.
(Alok Kumar Pandey, J)
(Ashutosh Kumar, J)
shahzad/
amitkumar
AFR/NAFR AFR
CAV DATE N.A.
Uploading Date 24.01.2024
Transmission Date 24.01.2024
