Dismissed

Samad Ansari v. State of Jharkhand

Jharkhand HC2 Mar 2020Cr.A(DB)/517/2011

Case brief

AI extract

What is this about?

This High Court disposed of a criminal appeal against conviction and sentence for murder. The bench upheld the lower court's finding that circumstantial evidence, combined with the appellant's false explanation regarding his wife's death, proved guilt under Section 302 IPC. The appeal was dismissed.

What did the court decide?

Criminal Appeal No. 517 of 2011 is dismissed; lower court's judgment convicting the appellant and sentencing him to life imprisonment is upheld.

Samad Ansari Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Criminal Appellate Jurisdiction)

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Criminal Appeal (DB) No. 517 of 2011

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(Against the judgment of conviction dated 08.08.2011 and the order of sentence dated 09.08.2011 passed by the learned Sessions Judge, Lohardaga in S.T No. 75 of 2010)

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Samad Ansari, S/o Late. Imam Bakshi Ansari, R/O Sirjo, P.O. P.S Kuru, District Lohardaga … Appellant

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Versus The State of Jharkhand … Respondent

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------For the Appellant : Mr. A. K. Kashyap, Sr. Advocate Mr. Abhilash Kumar, Advocate For the State : Mr. A. K. Pandey, A.P.P -------

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PRESENT

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HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA

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JUDGMENT

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nd . Dated: 02 March, 2020 Oral

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Per, Shree Chandrashekhar, J

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The sole appellant has faced the trial under section 302 of the Indian Penal Code for committing murder of his wife by setting her on fire.

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2. In S.T No. 75 of 2010, the appellant has been convicted and sentenced to R.I for life and fine of Rs.1 Lac to be paid to both his minor daughters.

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3. During the trial, the prosecution has examined 11 witnesses, however, one Jahid who according to the informant has informed him that the appellant killed his wife by setting her on fire was not examined during the trial.

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4. The case of the prosecution as disclosed by Bablu Khan in his written report dated 28.03.2010 is that in the

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intervening night of 27/28.03.2010 he received a telephonic information that Shabnam Khatoon has caught fire and she was admitted at RIMS, Ranchi. The appellant informed his younger sisters whereafter his sisters, namely, Shahnaz Parveen and Salma Parveen came to RIMS, Ranchi. But by the time they arrived at RIMS, Ranchi Shabnam Khatoon had died. The informant has alleged that in the night of 27.03.2010 the appellant tied Shabnam Khatoon, poured kerosene oil on her and set her ablaze. To save herself she jumped in a well and her neighbours rescued her. They scolded the appellant and asked him to take his wife to hospital. He has alleged that about 2-3 months after the marriage the appellant was abusing and harassing his sister and sometimes he was assaulting her also. He tried to reason with him but he did not listen and with an intention to kill her he has set his sister on fire.

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5. The prosecution witnesses – Khursid Ansari-P.W.1, Md. Parwej Alam-P.W.2, Hafiz Jalil-P.W.3, Rehana Khatoon-P.W.4, Hamida Khatoon- P.W.5 and Azmer Khan-P.W.6 who are the co-villagers and P.W.6 is the landlord; P.W.5 is wife of P.W.6 – have turned hostile during the trial. P.W.1, P.W.2, P.W.4, P.W.5 and P.W.6 who have stated before the police that Shabnam Khatoon had informed them that her husband has set her on fire have, however, stated in the court that they have no knowledge about the occurrence and the police did not record their statement. P.W.7 and P.W.8 are sisters of Shabnam Khatoon. P.W.9 who is the informant is her brother. They have deposed in the court about harassment and torture of Shabnam Khatoon at the hands of the appellant. The investigating officer who has been examined as P.W.10 has given description of the place of occurrence and the well in which Shabnam Khatoon had jumped to save herself. He has stated that the house in which the appellant was living with his wife belongs to P.W.6.

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6. The case set up by the prosecution against the appellant is based on circumstantial evidence. To prove the

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charge under section 302 of the Indian Penal Code against the appellant the prosecution has led evidence on : (i) harassment and torture of Shabnam Khatoon by her husband, (ii) homicidal death of Shabnam Khatoon in her marital home and (iii) medical evidence.

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7. Mr. A. K. Kashyap, the learned Senior counsel for the appellant has contended that the prosecution has not produced Jahid who according to the informant is an eye-witness and thus the prosecution has suppressed initial version of the occurrence and therefore a presumption under section 106 of the Evidence Act cannot be raised against the appellant.

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8. Before an inference is drawn under section 106 of the Evidence Act, what has been observed by the Hon'ble Supreme Court in “Shambhu Nath Mehra Vs. State of Azmer” reported in AIR 1956 SC 404 that it does not relieve the prosecution of its initial burden has to be kept in mind. Through P.W.7, P.W.8 and P.W.9 the prosecution has proved harassment and torture of Shabnam Khatoon at the hands of her husband and the medical evidence proves that she has suffered death by burning. P.W.7 has deposed in the court that the appellant had been assaulting her sister and her neighbours have informed her that the appellant has set her sister on fire. She has further stated that her sister is second wife of the appellant and from the wedlock two daughters have been born. In her cross-examination she has stated that she did not state before the police that Jahid told her about the occurrence. She has asserted that she has informed the police about the appellant trying to strangulate her sister and she has also informed the police about the incident at Kuru. On such facts, her statement that the neighbours of her sister told her that her sister was set on fire by her husband would remain hearsay as the neighbours have not stated such facts in the court but on harassment and torture of her sister by the appellant her evidence is direct and substantive. P.W.8 has also deposed in the court that the appellant had been assaulting

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her sister. She has claimed that Shabnam Khatoon had informed her about her harassment and torture by her husband. In paragraph no. 9 of her evidence she has reiterated that she had informed the police about harassment and torture of her sister at the hands of the appellant. The informant who has been examined as P.W.9 has stated that he did not lodge a complaint to the police regarding torture of his sister by her husband and Panchayati was not convened rather he himself had tried to reason with him. During their cross-examination these witnesses have remained firm and nothing material could be elicited from them by the defence. Mr. A. K. Kashyap, the learned Senior counsel for the appellant has submitted that to prove harassment and torture of Shabnam Khatoon by her husband the prosecution should have led some physical evidence, but we are not inclined to accept this proposition. The testimony of P.W.7, P.W.8 and P.W.9 on harassment and torture of Shabnam Khatoon by the appellant is cogent, consistent and reliable and it is not a requirement in law that the ocular evidence on harassment and torture of a victim must be supported by signs of physical violence.

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9. Dr. Samrina Kamal, who has conducted the post-mortem examination on 28.03.2010, has found epidermal burn on Shabnam Khatoon. Her face, neck, chest and upper part of the abdomen as well as back of the right lower limbs were burnt. The doctor has observed that the burn areas were cherry red and tissues were also cherry red. According to the medical jurisprudence, similar symptoms would be found on a victim of fire if water on her body is poured while she was burning. This is the prosecution's case that to save herself Shabnam Khatoon who was set ablaze by her husband had jumped in the well. In his examination under section 313 of the Code of Criminal Procedure the appellant has stated that in the night of 27.03.2010 he was sleeping in his room and on hearing hulla he woke up and brought his wife to the hospital. The doctor has rendered an opinion that the injuries found on the victim can be

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caused if she was set on fire. The doctor has found bandage all over the body of the deceased and in her cross-examination she has stated that she cannot say whether any treatment was provided to the victim. From the medical evidence unnatural death of Shabnam Khatoon is proved. The appellant admits that in the fateful night he was also sleeping in the same house. P.W.7, P.W.8 and P.W.9 have stated that they were informed by the neighbours that the husband of Shabnam Khatoon had set her on fire and to save herself she had jumped in the well. The neighbours have not supported the prosecution when they were examined in the court but they have also not deposed in favour of the appellant. No one from his family has also come forward to depose in the court that Shabnam Khatoon had caught fire accidentally or that she had set herself on fire. The stand taken by the appellant that he has brought his wife for her treatment and this would reflect his innocence cannot be accepted. The villagers had tried to save Shabnam Khatoon and though they have turned hostile P.W.6 has stated in his examination-in-chief that the villagers had told him that to save herself Shabnam Khatoon had jumped in the well. The attending circumstances in the case and evidence of the brother and sisters of the victim lady do not indicate that the stand taken by the appellant about the cause of occurrence was a probable cause. The statement of the appellant that after he woke up he could know about the occurrence and thereafter he has taken Shabnam Khatoon to the hospital is a false explanation offered by him. He should have been the first person who would have heard cries of his wife if she was caught fire accidentally. He is required to give atleast some detail about the occurrence and his mere saying that he took his wife for treatment is not sufficient. His defence that he brought his wife to the hospital and that he was found present in the hospital and while so his innocence must be inferred is not supported by the objective findings of the investigating officer or any other piece of evidence laid during the trial. These do not lend credence to his story. These are not such

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circumstances which may create a doubt on his complicity in the crime.

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10. In the above facts a presumption under section 106 of the Evidence Act must be raised against the appellant. When a wife dies in her marital home and, that too, in suspicious circumstances, her husband who was also sleeping in the house and there was no possibility of any other intervening factor must say clearly and in some detail how his wife has died. This is so because it would be within the exclusive knowledge of the husband how his wife has met with her death in the fateful night. The failure of an accused to offer any explanation to the incriminating circumstances or his evasive reply no doubt would not be the sole basis for his conviction in a case based on circumstantial evidence but it certainly provides an additional link in the chain of circumstances and if it is found that he has offered a false explanation during his examination under section 313 of the Code of Criminal Procedure that would supply the missing link and complete the chain of circumstances [refer, “State of Maharashtra Vs. Suresh” reported in (2000) 1 SCC 471 ].

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11. The prosecution has discharged its initial burden by proving foundational facts which would prima-facie disclose involvment of the appellant in the crime. In “Trimukh Maroti Kirkan Vs. State of Maharashtra” reported in (2006) 10 SCC 681, the Hon'ble Supreme Court has observed as under :

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“ 22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime…..”

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12. The appellant has admitted that at the time of the occurrence he was present in the house and P.W.6 has also deposed in the court that the appellant was present in his house in the fateful night, but he has failed to explain how his wife had

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caught fire and died. His false explanation in his examination under section 313 of the Code of Criminal Procedure would provide the missing link and complete the chain of circumstances.

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13. The above being the factual scenario and the state of evidence, we are of the opinion that the prosecution has proved the charge under section 302 of the Indian Penal Code against the appellant.

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14. We find no ground to interfere in this matter and, accordingly, Criminal Appeal (DB) No. 517 of 2011 is dismissed.

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15. Let the lower-court records be sent to the court concerned forthwith.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated: 02^nd March, 2020 Amit .A.F.R

Samad Ansari v. State of Jharkhand

Case brief

What is this about?

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Samad Ansari v. State of Jharkhand

Case brief

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