Per Gautam Kumar Choudhary, J
1. Appellants are before this Court against the judgment of conviction and sentence passed in Sessions Trial No.156 of 2015.
2. Appellant- Arshad Alam @ Md. Arshad Alam @ Munna @ Arshad Ansari, appellant - Shoaib Ansari @ Soyub Ansari @ Md. Shoaib Ansari and appellant- Jamshed Ansari @ Dablu @ Md. Jamshed Ansari have been convicted and sentenced under Section 302 of the IPC whereas appellant- Md. Yasin Ansari @ Md. Yasin Ali has been convicted under Section 216 of the IPC, for assisting and facilitating the escape of Arshad Ansari. Aggrieved by the judgment, appellants are before this Court.
3. Informant is the brother of the deceased. As per the FIR, on 13.01.2015 at 7 O’ Clock in the evening his sister Usha Kumari received a telephone call on which she went outside the house. In a short while, he heard her screams, on this informant, his wife Uma Devi and mother rushed out and saw in torch light that Arshad Ansari, Shoaib Ansari and Dablu @ Jamshed, who were co-villagers, were assaulting his sister. Arshad was having knife in his hand by which he had inflicted bleeding injury as a result, she was drenched with blood. Seeing this, they started raising alarm. His cousin brother Sanjeet and Tarkeshwar had also seen the incidence. On hulla, several people rushed there.
4. The genesis of the incidence has been stated that Arshad Ansari had made some obscene video of the deceased and was pressurizing her to marry him under threat to make the said video viral. When she refused to be coerced by threat, she had to pay by her life.
5. On the basis of the written report, Topchanchi P.S. Case No.12/15 was registered under Section 302, 120B/34, 216 of the IPC against appellants and one Dablu @ Jamshed. Police on investigation found the case true against all the four named accused persons.
6. Arshad Ansari, Shoaib Ansari and Dablu @ Jamshed were put on trial for the offence under Section 302 of the IPC, whereas Yasin Ali was for offence under Sections 302/120B and 216 of the IPC.
7. Altogether ten witnesses were examined on behalf of the prosecution and relevant documents have marked as Exhibit 1 – 19 which includes FIR, seizure lists, inquest report, post mortem report, statement under Section 164 of the Cr.P.C., map of place of occurrence, seizure list of three mobile, seizure list of hand glove with blood stains and Chappal, CDR report, FSL reports.
8. Apart from this, the following materials have been produced before the court and marked as Exhibits:
Exhibit I – Knife with blood stained and mud recovered from drain.
Exhibit II – One Hawai Chappal seized from the residence of accused- Arshad. Exhibit III – One shirt of Arshad @ Munna with blood stain.
Exhibit IV – One full pant of accused- Arshad. Exhibit V – One Kurta of deceased.
Exhibit VI – Blood-stained gloves.
Exhibit VII – Sample envelope containing blood-stained mud collected from place of occurrence.
ARGUMENT ON BEHALF OF APPELLANT
9. Judgment of conviction and sentence has been assailed on the ground that inquest report was prepared before institution of case on 14.01.2015 at 6.30 a.m., whereas the First Information Report has been registered on 14.01.2015 at 9.30 a.m. Further, FIR itself is hit by Section 162 of the Cr.P.C., as it was not the first, as the police had already reached the place of occurrence on receiving information of the offence on 13.01.2015.
10. Confessional statement said to be recorded on 15.01.2015 at 20.30 hours at Topchanchi Police Station (Exhibit 12), was not voluntary and therefore, the recovery of the knife, blood-stained gloves and Chappal, cannot be relied upon. The knife was not sealed immediately after the recovery from an open public place, raises serious doubt about the said recovery. Recovery of the blood-stained cloth of Arshad said to be made from the house of Md. Hussain in Bokaro on 16.01.2015, was not made in his presence as stated by C.W. 1 in para 5 of the deposition. Seizure list witnesses were also not of the locality. The place of occurrence has also not been established. The torch which is said to be source of identification, was not produced in the court.
11. It is submitted by the learned counsel on behalf of appellant- Md. Yasin Ansari @ Md. Yasin Ali that this appellant has been convicted on contradictory statements made by P.W. 8 and P.W. 9. The only evidence is that Yasin Ansari along with Arshad Ansari had come to his house with a request for taking him to Gomo railway station, but it has not come in evidence that Yasin Ansari was in know of the fact about complicity of Arshad Ansari in the offence.
12. Learned APP has defended the Judgment of conviction and sentence. It is argued that the prosecution case is proved by direct eye witness account of the witnesses who were natural witnesses being the relative of the deceased. Once the incidence takes place at or near home, informant of the house become the natural witness to the incidence. On hulla they rushed out and saw the incidence in which Arshad stabbed Usha Kumari, whereas the other two appellants namely Shoaib Ansari and Jamshed Ansari had caught hold of her.
13. They were all co-villagers and therefore they were easily identified in the torch light. Oral evidence is corroborated by the recovery made on disclosure statement and scientific evidence There is nothing on record to suggest that the deceased had any enmity with any other person. There is no defence hypothesis to suggest that there was possibility of someone else to be the author of crime.
FINDINGS
14. Deceased sustained multiple stab wounds and died a homicidal death due to the said injury, is evident from the post-mortem examination report (Exhibit 5), which has been proved by the Autopsy Surgeon- Dr. Vineet P. Tigga (P.W. 7). The following ante mortem injuries were found on the dead body: -
I. Stabbed wound-
A. 1 ½ " x ¼" x bone deep on left side middle part of neck. Tracheal rings were found sharply cut on the front. Tailing was found present on right end of the wound. The wound was situated horizontally from left to right.
B. 1 ¼" x ¼ " x cavity deep on lower part right side front of chest, 1” away from the midline running obliquely tailing on upper end.
C. 1" x ¼" x muscle deep on middle part, right side, back of chest, tailing on upper side.
D. 1" x ¼" x cavity deep on lower part left side back of abdomen.
E. 1½ " x ¼" muscle deep on lower third front of right forearm with trailing towards end.
Deposition of P.W. 7 establishes that death was caused by external and internal injuries from sharp cutting penetrating weapon.
15. The place of occurrence has been stated by the Investigating Officer to be the land of Deglal where brinjal and tomatoes were planted. This corroborates the testimony of eye witnesses P.W. 1- Uma Devi, P.W. 2- Jayanti Devi and P.W.3 of the case regarding the place of occurrence. The incidence took place in front of the house of the informant (P.W. 6) in the evening at 7 p.m. on 13.01.2015 and therefore, the informant (P.W. 6) his wife (P.W. 1) and mother Jayanti Devi can be regarded as natural witness to the incidence. It is the consistent evidence of all these witnesses that deceased was at home and on a phone call, she went outside. When at the scream of the deceased, they rushed outside, they saw Arshad was stabbing her, while Jamshed and Shoeb Ansari had caught hold. Motive of the offence has also been disclosed in the testimony of P.W. 1 and P.W. 6 which was the refusal of the deceased to marry Arshad Ansari. All these witnesses have been cross examined at length and the defence has failed to extract any contradiction in their account so as to disbelieve their testimony. They are close family members of the deceased, and it does not appeal to reason that they would falsely incriminate these accused persons, leaving aside any other assailant. Accused were co-villagers, therefore they were easily identified. It has been held in State of Madhya Pradesh Versus Makhan @Madan and Others, 2008 (10) SCC 615 held that a person can be identified even in darkness from manner of speech, style of walking and other peculiar features.
16. Apart from the witnesses discussed above, Dhiraj Mahto (P.W. 3) and Sanjiv Kumar Mahto (P.W. 4), have also stated that on hulla, they came outside the house and saw the incidence in which Arshad Ansari, Shoaib Ansari and Dablu @ Jamshed were assaulting the deceased. On their approach, they fled away and Usha died on spot. Nothing significant has come in their cross-examination to doubt the veracity of their account.
17. Apart from the direct eye witness account, prosecution case is fortified against Arshad Ansari by seizure of weapon of offence and other incriminating articles on the basis of his disclosure statement. On the basis of the disclosure statement (Exhibit 12) of Arshad Ansari, gloves, sleeper wore by him at the time of occurrence and the photographs of the deceased were recovered from his house. Weapon of offence was also seized on the disclosure statement. The seized articles, gloves, sleeper, blood-stained mud and knife were sent to FSL, Ranchi for forensic examination. Law is settled that examination of seizure list witness, is not required in terms of Section 100(5) Cr.P.C, and in any case his mere turning hostile, will not be fatal if it is otherwise proved [See Modan Singh Versus State of Rajasthan, 1978 (4) SCC 435, Govt. of NCT of Delhi Versus Sunil & Another, (2001) 1 SCC 652].
18. The report received from FSL, Ranchi has been marked as Exhibit 17 which establish that blood stains found at the place of occurrence, clothes of accused and knife used in commission of the occurrence, belonged to the same group as that of the victim. Further, the DNA profile generated from the source of Exhibit D i.e. Kurta of the deceased, were the same as that generated from the blood-stained knife, blood-stained sleepers and blood-stained full shirt. In this way, the scientific evidence fully corroborates the testimony of the eye witnesses. The prosecution case is established that it was the appellant- Arshad Anari who had inflicted the knife injuries to the deceased whereas the other appellants had caught hold of her at that time.
19. As per the FIR (Exhibit 2), the incidence took place on 13.01.2005 in the evening at 7 p.m., whereas the FIR was lodged on 14.01.2015 at 9.15 a.m. The Investigating Officer (P.W. 10) has deposed that he received the information at around 8 p.m. and reached the place of occurrence in five minutes. The dead body was lying at the place of occurrence and because it was night, the inquest report was prepared next morning. In para 6, he has explained that as the area was Naxal infested, therefore, dead body was taken to the police station. From the inquest report (Exhibit 8), it is evident that the inquest was prepared at 6.30 before the institution of FIR. From this, it is evident that a cryptic information at night on which police proceeded for the place of occurrence. This information cannot be termed as FIR. The argument that written report (Exhibit 2) was not first in the point of time and therefore, hit by Section 162 of the Cr.P.C., is not sustainable. The plea that FIR lost its authenticity as it was registered after the inquest report, cannot be accepted.
The inquest report is prepared under Section 174 of the Cr.P.C. The object of the inquest proceedings is to ascertain if a person had died an unnatural death and if so, what was the cause of death. Once the fact is ascertained that the cognizable offence has been committed, then FIR is registered. Inquest preceding the FIR, will therefore have no bearing in the present case (see to Sri Sambhu Das @ Bijoy Das & Another Versus State of Assam, (2010) 10 SCC 374).
20. Confession before police is inadmissible in evidence under Section 25 of the Evidence Act. However, when such a confession leads to recovery, then such fact deposed to as discovered in consequence of information received from a person, is admissible into evidence. The basic idea embedded under Section 27 of the Evidence Act is the Doctrine of Confirmation by subsequent event. Doctrine is founded under principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of fact, it becomes a reliable information. Hence, the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. The “fact discovered” envisaged in the Section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. Besides, facts so discovered can also be used for the limited purpose by the Court to draw presumption under Section 114 (Illustration a) and Section 106 of the Evidence Act in appropriate cases. [See State of Maharashtra Versus Damu, (2000) 6 SCC 269] followed in (2015) 7 SCC 148.
21. In the present case, as per deposition of I.O. (P.W. 10), appellant- Arshad was arrested on 15.01.2015 at 7.30 in the evening and on the basis of the disclosure statement, gloves stained with blood, sleeper and a photograph were seized from his house. Gloves and slipper were separately seized and the seizure list has been separately marked as Exhibit 13 and 14. On the same day at 11 O’ Clock in the night, on his disclosure statement, the weapon of offence which was a knife, was also seized from near the Aanganbari Centre at hand pump which was seized and marked as Exhibit 15. Wearing apparels of accused Arshad Ansari, on his disclosure, was seized from a house in Sector IX, Bokaro and marked as Exhibit 16. All these articles were sent for forensic examination to FSL, Ranchi. The report was duly received and proved. Learned trial court has noted that as per the report, blood stain found at the place of occurrence, clothes of accused and knife used in commission of occurrence, belongs to the same group as that of the victim as per the DNA report.
22. The oral evidence of P.Ws. 1, 2, 3, 4 and 6, is thus duly corroborated by disclosure statement of accused- Arshad Ansari leading to recovery of incriminating materials and the scientific evidence of clinching nature, establish that Arshad Ansari was the main assailant, who stabbed the deceased to death for her refusal to marry him. This was not an individual act as stated consistently in the FIR as well as by the witnesses, but was jointly committed by Shoaib Ansari @ Soyub Ansari @ Md. Shoaib Ansari and Jamshed Ansari @ Dablu @ Md. Jamshed Ansari. In this view of matter, judgment of conviction and sentence passed against them, under Section 302 of the IPC, is affirmed against these appellants.
23. As far as the appellant-Md. Yasin Ansari @ Yasin Ali is concerned, he is maternal grandfather of appellant- Arshad Ansari. The prosecution case against him is that after the incidence, he facilitated his escape. It has been deposed to by P.W. 8- Mahadeo Rai that on 13.01.2015, at 8 O’ Clock, Yasin Ansari came to his house with Arshad Ansari and stated that Arshad had to go to Bhubaneshwar and therefore requested him to drop at Gomo railway station. He took Arshad to Gomo, and when they were waiting for the train there, Arshad received a call on mobile about the death of the girl. When the witness enquired about this, he went away. P.W. 9- Dinesh Roy is the son of P.W. 8 and has corroborated his testimony.
24. I do not find any merit in the argument advanced on behalf of the appellant that even if it is assumed that he made such a request, he cannot be credited with knowledge about the incidence. Knowledge or intention is a mental element, and has to be inferred from the facts and circumstance of particular case. Yasin Ali is a resident of Village Chitarpur under Topchanchi Police Station where the incidence took place. The informant and the deceased hail from the same village and therefore he cannot feign ignorance about the murder of the girl in the village. The incidence took place at 7 p.m. and on the same day and only one hour after the incidence, this appellant arranges for the escape of the principal accused. There was an element of suddenness in this escapade, which leads to the irresistible conclusion that appellant- Md. Yasin Ansari @ Md. Yasin Ali was in full knowing of the things and had facilitated his escape. His conviction and sentence under Section 216 of the IPC is accordingly, affirmed.
All the three Criminal Appeals stand dismissed.
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.
