High Court
Case Details
Criminal Appeal (D.B.) No. 228 of 2011 With Criminal Appeal (D.B.) No. 258 of 2011 [Arising out of judgment of conviction dated 17.01.2011 and order of sentence dated 27.01.2011 passed by learned Additional Sessions Judge, F.T.C.-I, Garhwa in Sessions Trial No. 237 of 2008] Criminal Appeal (D.B.) No. 228 of 2011 1. Aliman Bibi wife of Ismail Ansari 2. Ismail Ansari son of Fuleman Ansari Both are resident of Village Kumba Tola Sishwa, P.O. & P.S. Dhurki, District Garhwa --Versus-- The State of Jharkhand …. …. …. Respondent .... …. Appellant .... Criminal Appeal (D.B.) No. 258 of 2011 With Naseem Ansari son of Ismail Ansari resident of Village Kumba Tola Sishwa, P.O. & .... P.S. Dhurki, District Garhwa --Versus-- The State of Jharkhand …. …. …. Respondent .... …. Appellant
Legal Reasoning
For the Appellants : Mr. Sanjay Kumar Pandey 2, Advocate For the State : Mr. Manoj Kumar Mishra, A.P.P. PRESENT: SRI ANANDA SEN, J. ----- SRI GAUTAM KUMAR CHOUDHARY, J. ----- JUDGMENT Reserved on: 28.08.2024 Pronounced On: 05.09.2024 Per Gautam Kumar Choudhary, J. Both these appeals arise out of judgment of conviction and sentence passed in Sessions Trial No.237 of 2008 by learned Additional Sessions Judge, F.T.C.-I, Garhwa, whereby and whereunder appellants have been convicted and sentenced under Sections 302, 201 read with Section 34 of the IPC. 2. Informant of the case- Mumtaz Ansari (P.W. 7) is father of the deceased, who was married to Nasim Ansari in February, 2005. Initially she had a normal conjugal life. On 07.04.2008, Nasim Ansari came to the house of the informant and informed him that the deceased Siara Bibi had fled away somewhere. At that time, the informant was not at home and was informed by his wife, when he returned in the evening. He along with some of his close acquaintances went to the matrimonial home of his daughter. There he came to know that sister-in-law of his daughter (Nanad) namely Koshida Khatoon was married to one Nure Alam in February, 2008 who had come to get his wife on 04.04.2008. The deceased disclosed to Nure Alam that Koshida was having extra marital relationship, this led to altercation between the two and Nure Alam assaulted Koshida Bibi. When this incident came to the knowledge of her family 1 member, deceased was assaulted by the appellants. At night, she was strangulated by them and her dead body was thrown into a well. This was informed to police and the dead body was taken out from the well. 3. On the basis of the statement of the informant, Dhurki P.S. Case No.40 of 2008 was registered under Sections 302, 201/34 of the IPC. Police on investigation, found the case true and submitted charge sheet against the appellants, Koshida Bibi and her husband Nure Alam. After cognizance and commitment, the accused persons were put on trial. 4. Altogether 13 witnesses were examined on behalf of the prosecution and relevant documents including the post mortem examination report were adduced into evidence and marked as Exhibits 1 – 3. Nure Alam and Koshida Bibi were acquitted of the charges and the appellants were convicted. 5. Judgment of conviction and sentence has been assailed on the ground that there is no eye witness to the incidence and the appellants have been convicted on the basis of mere suspicion. Out of the 13 witnesses examined, P.Ws. 4 – 11 and P.W. 13 have not supported the case and were declared hostile. The Investigating Officer has also not been examined. In the absence of these evidences, judgment of conviction and sentence is not sustainable. 6. Learned counsel on behalf of State has defended the judgment of conviction and sentence. It is submitted that the incidence took place in the matrimonial home and the Doctor found it to be a case of homicidal death. No explanation has been offered by the appellants with regard to the cause of death as this act was within the special knowledge of the appellants. FINDINGS 7. The deceased died a homicidal death, is not in doubt and has been established by the objective findings of the Doctor, who conducted autopsy on the dead body. The Autopsy Surgeon has proved the post-mortem examination report (Exhibit 1). The following ante-mortem injuries were found present on the body of deceased: - I. Red bruise 1½” x 1” on under surface of chin on right side. II. Red bruise of size 4½” x 1” running transversally from injury no.1 to lower pole of left ear. Doctor opined that cause death of asphyxia due to strangulation. In the inquest report (Exhibit 3) also injuries were noted on the body of the deceased and it was suspected that the deceased was killed and thrown in a well. 8. P.W. 2 has deposed that the dead body was recovered from the well and as a witness to the inquest, he has affixed his LTI over the inquest report. P.W. 3 is also a witness to the recovery of body from the well and there has not 2 been any cross examination disputing the recovery of dead body from the well. P.Ws. 4 – 6, co-villagers of the appellants, have not supported the prosecution case and they were declared hostile. They have also admitted that the dead body was recovered from the well. Other witness P.Ws. 7 – 11 and P.W. 13, have not supported the case of the prosecution case and were declared hostile including father of the deceased and informant of the case P.W. 7. 9. From these evidences, the homicidal death of the deceased and recovery of the dead body from the well has been proved. Beyond this, there is no other evidence to establish that on the date of incidence, the appellants were in the house with the deceased or that they had assaulted her. On these sketchy evidences, I am of the view that a presumption under Section 106 of the Evidence Act cannot be raised. All the witnesses have turned hostile including the informant, who is none other but the father of the deceased. It was incumbent on the part of the prosecution to have established that the appellants were present in the house when the incidence took place. The prosecution has only proved the homicidal death and its recovery from the well, but beyond this, the necessary ingredient for raising presumption, has not been proved. Under the circumstance, the judgment of conviction and sentenced is not sustainable and is accordingly, set aside. Both these Criminal Appeals are allowed. Sureties are discharged from the liabilities of their bail bonds.
Decision
Pending Interlocutory Application, if any, is disposed of. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment. (Gautam Kumar Choudhary, J.) (Ananda Sen, J.) Per Ananda Sen, J. I agree. High Court of Jharkhand, Ranchi Dated, 5th September, 2024 AFR/Anit 3