Md. Noor Ansari Vs State of Chhattisgarh

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2024:CGHC:44495-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 326 of 2024

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1 - Md. Noor Ansari S/o Md. Usman Ansari Aged About 26 Years

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2 - Halima Khatun W/o Md. Noor Ansari Aged About 30 Years Both R/o Dafarpur, P.S. Barahat, Distt. Baka, Bihar. Presently residing at EWS H.No. 8, Atal Awas Colony, P.S. Aarang, District Raipur, C.G.

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... Appellant

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Versus

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State of Chhattisgarh Through P.S. Aarang District Raipur, C.G.

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... Respondent

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For Appellant : Mr. Akash Sahu, Advocate. For Respondent : Mr. Shailendra Sharma, Panel Lawyer

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Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Amitendra Kishore Prasad, Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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14/11/2024

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1. Challenge in this appeal under Section 374(2) of the Code of Criminal Procedure, 1973, (for short, the Cr.P.C.) is to the judgment of conviction and order of sentence dated 16.01.2024 passed in Sessions Trial No. 103/2021 by the learned 9^th Additional Sessions Judge, Raipur, District Raipur, by which the appellants have been convicted for the offence punishable under Section 302, 34 of the Indian Penal Code ( for short, the IPC ) and sentenced to life imprisonment with fine of Rs. 1000/- each for

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the offence punishable under Section 201, 34 of the IPC, they have been sentenced to rigorous imprisonment for five years with fine of Rs. 1000/each. In default of payment of fine under the aforementioned Sections of the IPC, they shall be liable to undergo further rigorous imprisonment for 1 – 1 year each.

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2. The appellant/convict Mohammad Noor Hasan Ansari and Halima Khatoon have been charged under Sections 302, 201 read with Section 34 of the Indian Penal Code alleging that in between 12.03.2020 and 13.03.2020, at the place of occurrence, under Police Station Arang, District Raipur, Chhattisgarh, in furtherance of their common intention, to cause the death of Bibi Shakeena Khatoon (hereinafter referred to as ‘the deceased) and with the intention of causing bodily injury likely to result in death, caused death of the deceased by strangulating her and by covering the body of the deceased with bed-sheet and scarf and hiding it under an Babool bush across the Padhi canal, thereby destroying the evidence.

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3. The case of prosecution in brief is that on 13.03.2020, the complainant Anand Das, who is the village Kotwar of village Panthi appeared in the Police Station and an gave oral information that while roaming in the village in the morning, Dekhram of the village informed him that an unknown woman was hidden in the bushes under the Babool tree near the village Panthi canal Khamtaria pond, who was dead. When he went closer and saw, the body was lying on the ground on which the branch of Ratanjot plant was covered. On the said information, Merg No. 30/20 Exhibit P-01 was prepared by Police of Police Station Arang. For the dead body panchnama proceedings, notice Exhibit P-02 was given to the witnesses and after the dead body panchnama proceedings of the deceased, inquest (Exhibit P-03) was prepared. During the investigation,

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a spot map (Exhibit P-13) was prepared in presence of the witnesses as per the information given by the complainant Anand Das at the scene of incident. During the investigation, one white dupatta and one blue, white and pink dotted bed-sheet were seized from the crime scene in presence of witnesses and seizure memo, Exhibit P-17, was prepared. Panchnama for identification of the dead body of an unknown woman, the proceedings were conducted in presence of witnesses as per Exhibit P- 04 and the body identification panchnama was prepared in presence of witnesses (Exhibit P-29). For conducting the post mortem of the body, post mortem application (Exhibit P-30) was sent and post mortem was conducted and its report (Exhibit P-22) was obtained. During the investigation, memorandum Exhibit P-31 was sent to Dr. Bhimrao Ambedkar Hospital for giving short PM report of the unidentified deceased's body and short PM report Exhibit P-23 was obtained.

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4. During the course of investigation, statements of witnesses were recorded. For the last rituals of the unknown dead body, the The Chief Municipal OfÏcer, Nagar Palika, Nagar Panchayat Aarang was sent a memo Exhibit P/33 and after the burial, the dead body panchnama (Exhibit P/34 was prepared. The viscera of the dead body was seized vide Exhibit P/32 when it was brought by the Police Constable Laxman Verma. During the investigation, on the basis of short PM report, crime number 169/2020 under section 302, 201 of the IPC was registered vide Exhibit P-35. After investigation when sufÏcient grounds were found against the accused Mohd. Noor Hasan Ansari and Halima Khatoon to have committed the crime, they were arrested as per arrest memo Exhibit P-14 and P-15 and information about their arrest was given to their family members vide Exhibit P-28. Memorandum statement of the accused Noor Hasan Ansari (Exhibit P-10) was recorded in presence of

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witnesses. On the basis of memorandum statement, as informed by the accused, a black colour motorcycle bearing registration number CG-04HW 5929 with RC book and a Samsung mobile phone number 8757565958 were seized in presence of witnesses from Atal Awas Colony and seizure memo (Exhibit P-12) was prepared. A broken yellow colour glass bangle, a blue plastic bangle, a red colour hair pin and an ear-ring were seized from the crime scene in presence of witnesses and seizure sheet Exhibit P-11 was prepared. During investigation, a spot map of the crime scene (Exhibit P-24) was prepared by going to the crime scene as told by accused Mohd. Noor Hasan Ansari. Notices Exhibit P-25 and 26 were sent to the witnesses to appear in the investigation proceedings. During investigation, identification proceedings panchnama (Exhibit P-05) was prepared by getting photo identification proceedings of the deceased done by Gurvinder Singh Dhillon in presence of witnesses. During investigation, identification proceedings panchnama Exhibit P-06 was prepared by getting photo identification proceedings of the deceased done by Mohd. Sultan Ansari in presence of witnesses. Identification panchnama Exhibit P-07 and 08 were prepared by getting identification proceedings done by identifiers Ram Manohar Devangan and Anil Kumar Sahu in presence of witnesses by showing photo of unknown woman. As per statement given by accused Mohd. Noor Hasan, panchnama Exhibit P-09 was prepared for identification of the place of incident in presence of witnesses. On the presentation of Mohd. Maqbool Ansari, two photographs of the deceased and her husband accused Mohd. Noor Hasan Ansari, copy of statement given by Bibi Shakeena Khatoon, Mohd. Rashid Ansari, Mohd. Iqbal, Nalasi K 924/18 presented by the deceased before Chief Judicial Magistrate District Banka, Bihar and copy of the decision of Family Court,

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Banka, Bihar were seized in presence of witnesses and seizure memo Exhibit P-18 was prepared. Tahrir Exhibit P-27 was sent to Tehsildar Raipur for providing the sight map of the place of incident from Halka Patwari and sight map Exhibit P-20 prepared by Patwari was received and Panchnama Exhibit P-16 was prepared by Patwari.

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5. After completion of the investigation, charge sheet was filed by the police for the offences under Sections 302, 201 and 34 of the IPC, on 28.04.2020 before the Court of Judicial Magistrate First class, Raipur and Criminal Case No. 2098/2020 was registered. The learned Magistrate committed the case to the Court of Sessions vide his order dated 05.02.201 and the same was registered as Sessions Trial No. 103/2021.

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6. Charges were framed against the appellants for the offences under Sections 302, 201 read with Section 34 of the IPC vide order dated 01.09.2021 which was denied by the appellants and they prayed for trial.

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7. In order to bring home the offence, prosecution examined as many as 13 witnesses namely, Anand Das Manikpuri (PW-1), Anil Kumar Sahu (PW2), Ram Manohar Dewangan (PW-3), Harman Kumar Baghel (PW-4), Salik Ram Sen (PW-5), Nehru Kumar Nishad (PW-6), Gurvinder Singh (PW-7), Dekhram Sahu (PW-8), Rameshwar Prasad Thakur (PW-9), Deepak Kumar Sahu (PW-10), Dr. Shivnarayan Manjhi (PW-11), L.D.Diwan (PW-12), and Trilok Pradhan (PW-13) and exhibited as many as 35 exhibits in support of its case.

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8. The statement of the convicts/appellants were recorded under section 313 CrPC. They have expressed their ignorance about most of the questions, however, some of them were denied as well. They stated that they are innocent and have been falsely implicated. Accused Noor Mohammad Ansari stated that the deceased was mentally ill and on

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various earlier occasions, she had ran away from the house. In support of their case, the appellants got the police statement of Nehru Kumar Nishad (PW-6) and Gurvinder Singh (PW-7) exhibited as Exhibit D/1 and D/2.

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9. The learned trial Judge, after considering the statement of witnesses and evidence available on record, convicted and sentenced the appellants / convict as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellants/convict.

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10. Mr. Akash Sahu, learned counsel for the appellants submit that the deceased was the first wife of the appellant No. 1. In the present case, the father of the deceased has not been examined though the dead body was identified by the father of the deceased. There is no material on record to connect the appellants with the commission of the crime and there is no eye witness also in the present case. Nothing incriminating has been seized from the appellant so as to connect them with the offence in question. Even the incriminating articles allegedly seized have not been sent for FSL examination and all the witnesses in the present case are mere hearsay witness. Only one witness of the memorandum was examined and the other witness has not been examined. The prosecution has failed to prove that the mobile phone which was recovered, belonged to the deceased. The appellant No. 1 and the deceased had been living separately for more than 5 years and there was no motive for the appellants to commit the crime. There are omissions and material contradictions in the statement of the witnesses and as such, merely on the basis of circumstantial evidence, the appellants cannot be convicted and this appeal deserves to be allowed.

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11. On the other hand, Mr. Shailendra Sharma, learned Panel Lawyer appearing for the State/respondent would submit that the learned Court

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below was fully justified in convicting and sentencing the convicts/appellants as mentioned in the opening paragraph. There is ample evidence on record to hold the appellants guilty of the offence. The order passed by the learned Court below needs no interference and the appeals filed by the convicts/appellants be dismissed.

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12. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection.

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13. The learned trial Court, after appreciating oral and documentary evidence available on record, particularly relying upon the statement of Dr.Shivnarayan Manjhi (PW-11), who conducted postmortem, has come to the conclusion that cause of death was due to asphyxia as a result of throttling and was homicidal in nature. The Doctor has found the following injuries on the body of the deceased:

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“Injury present on neck - Impacted abrasion present on neck left side 11x02 cm. transverse which extends 04 cm. below to chin, which runs transverse 06 cm. below to left angle of mandible then runs transverse & ends 07 cm. below to left mastoid, u/n red color ecchymosis present, contusion present on neck muscles u/n abrasion, fracture of thyroid cartilage & left cornu of hyoid bone all around fracture red color ecchymosis present.

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Linear abrasion semicircular shape like nails marks 08in no. anterior aspect of nock & left side of neck size about 01 cm. x0.5 cm. to 02x0.5 cm. transverse which extends 02 to 03 cm. distance which extends from thyroid eminence to lower part of neck upto suprasternal notch, u/n neck muscles ie sternocleodomastoid, stenothyroid & anterior group of muscles contused, fracture of lower 1/3d part of tracheal cartilage, on cut trachea contains large amount of frothy fluid with blood. Lower & vessels contused at the level of cricoids cartilage.

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Contusion present on right thigh anterior aspect 04x02 cm. Transverse.

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Contusion present on left thigh just above knee medial aspect 06x02 cm. Vertical.

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Contusion present on left thigh just above knee anterior aspect 04x02 cm. Vertical.

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Contusion present on right knee size 03 cm. & left side 3.5 cm. Diameter

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Abrasion present on right side popliteal fossa 03in no, size of 1.5x0.5 cm. Vertical

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Contusion present on right arm mid part lateral aspect 03x02 cm. Transverse

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Contusion present on left elbow posterior aspect 03x02 cm. Transverse.

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Contusion present on left arm lateral aspect just above elbow 07x04 cm. Vertical.

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Red color ecchymosis present on occipital region 07x04 cm, transverse, skull intact.

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Postmortern wound present on left maxillary region 06x03 cm. vertical which extends upto nasal bridge all around wound paleness present. On left elbow to forearm 03in no, size of 03x0.5 cm. Transverse.

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Injury no 01 to 11 antemortem in nature, all injuries were fresh. Neck injuries no. 01 & 02 sufÏcient to cause death in ordinary course of nature.

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Injury no. 12 postmortem in nature.”

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14. From the above, we are of the considered opinion that the finding recorded by the trial Court that death of deceased was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby afÏrm that finding.

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15. Now, the next question for consideration would be whether the accusedappellants herein are the perpetrator of the crime in question, which the

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learned trial Court has recorded in afÏrmative.

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16. The dead body which was found in an isolated place was identified by her father Mohd. Sultan Ansari vide Exhibit P/5 and P/6. In the memorandum of the accused-Mohd. Noor Ansari, he has clearlys tated that he alongwith his second wife i.e. the appellant No. 2 Halima Khatoon throttled the deceased with a Dupatta and took the dead body on a motor cycle. The body was screened by them under a Babool tree and the Dupatta was thrown by him in the canal. He had kept the mobile of the deceased in the EWS Quarter No. 8 which was recovered and seized at his instance only. Kedarnath Sahu and Anand Das (PW-1) are the witness of the said memorandum, however, Kedarnath Sahu has not been examined in this case.

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17. Anand Das Manikpuri (PW-1) who is the Kotwar of the village Pandhi, stated that it was correct to say that the appellant No. 1 had informed in his memorandum statement that he had murdered his first wife and also described as to how the dead body was screened under the Babool tree. In his presence, one Dupatta, and a bed sheet was recovered at the instance of the appellant No. 1. He further admitted that at the instance of the appellant No. 1, the police went to the house i.e. LIG 24 situated at Atal Nagar, where broken bangles, hair pin were found and seized. Thereafter, they went to the EWS No. 8, where the motor cycle was seized but he could not say anything with regard to the mobile. Another witness Salik Ram Sen (PW-5) also stated that when the accused Noor Hasan was in handcuffs and asked by the police, he had admitted that he had murdered the deceased.

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18. Gurvinder Singh (PW-7) has stated that hehad given one hof his shop on rent. He stated that the relationship between the deceased and the appellant was not cordial and police had also instructed the appellant No.

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1 to live peacefully. After few days, he received a phone call from the deceased and the deceased was complaining that the appellant No. 1 did not come to her house and had some illicit relationship with a nother woman. He had tried to counsel the appellant No. 1 but he did not listen to him.

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19. Rameshwar Prasad Thakur (PW-9) is the Patwari who had prepared the spotmap (Exhibit P/21). Deepak Kumar Sahu (PW-10) is also the Patwari who had also prepared another spot map (Exhibit P/20).

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20. In the case in hand, the deceased is the first wife of the appellant No. 1. The appellant No. 1 and his second wife i.e. the appellant No. 2 could not explain as to how the deceased died. They have tried to take a false plea that the deceased was mentally ill but there is no document or evidence in this regard. Thus, the said conduct of the theirs goes against them. The case is based on circumstantial evidence and the chain of circumstances appears to be complete in this case. The recoveries have been made at the instance of the appellant No. 1 from the house which goes to suggest that it was the appellants who have committed the murder. The broken bangles, hair pin etc. have been recovered and seized by the police from the house of the deceased and motor cycle on which the dead body was carried to the place where the dead body was screened, has also been recovered from the house of the appellants. The bedsheet which was used for covering the dead body has also been recovered from the palace where the dead body was screened.

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21. So far as the motive is concerned, the appellant No. 1 had the motive to commit the murder of the deceased as the deceased had filed three cases against the appellant No. 1, firstly under Section 125 Cr.P.C. for maintenance, secondly for divorce and thirdly for the offence under Section 498-A of the IPC. Hence, there can be no manner of doubt that

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the appellant No. 1 was frustrated with the series of cases filed against him by the deceased. The police has also seized certain documents in this regard from the father of the deceased which is Exhibit P/18.

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22. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellants/ convicts.

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23. Accordingly, the appeals being devoid of merit are liable to be and are hereby dismissed.

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24. The appellants/convicts are stated to be in jail. They shall serve out the sentence awarded by the trial Court by means of the impugned judgment of conviction and order of sentence dated 16.01.2024.

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25. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.

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26. Let a certified copy of this order alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any.

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Sd/-

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Sd/-

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(Amitendra Kishore Prasad) (Ramesh Sinha) JUDGE CHIEF JUSTICE

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Amit

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AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2024.11.25 18:33:18 +0530

Md. Noor Ansari v. State of Chhattisgarh

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Md. Noor Ansari v. State of Chhattisgarh

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