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2006 DIGILAW 1110 (JHR)

Aftab Ansari v. State Of Jharkhand

2006-08-23

DABBIRU GANESHRAO PATNAIK, DHANANJAY PRASAD SINGH

body2006
JUDGMENT 1. The sole appellant, Aftab Ansari has preferred this appeal against the judgment and order of conviction dated 30.12.2002 passed by Sri Arun Kumar Additional Judicial Commissioner (F.T.) Ranchi in Sessions Trial No. 363 of 1999 whereby and whereunder the appellant has been convicted under Section 302 of the Indian Penal Code and has been sentenced to under go R.I. for life, further sentenced to pay fine of Rs. 5,000/- in default to further undergo imprisonment for six months. 2. Brief facts leading to his conviction are that the deceased Amanat Ansari and the appellant were working as daily wagers in the tent house of Zibrail Ansari situated at Mandar. Both of them used to lake their meals and further sleep in the house of Zibrail Ansari. Further stated that 4-5 days before the occurrence Zibrail gave them a Ten Rupee Note to divide it equally between them. According to the informant the appellant handed over a torn Rupees Five note to the informant which was later on not accepted by the shopkeepers and ultimately it was used worth Rupees Four only which lead to an altercation between them. Further stated that on 27.5.1998 Zibrail Ansari again gave Rs. 10 Note to the informant to divide it between them which again raised controversy regarding sharing the money and its use. The informant after taking meal in the night of 27.5.1998 went to sleep at 10 p.m. and woke up at 11.30 p.m. to find that the appellant Aftab has inserted a Chura in his stomach. The informant raised alarm and objected why the appellant was assaulting him. Then the appellant with intention to kill him again stabled him resulting to bleeding injury. Thereafter he raised alarm and people started coming. In the meantime the appellant fled to the roof of the house. The informant was brought to Mandar hospital in serious condition where police arrived and recorded his statement in presence of Ramjan Ansari and Zibrail Ansari. The informant Amanat succumbed to injury within hours. 3. The police registered Mandar P.S. Case No. 41 of 1998 doled 28.5.1998 and arrested the appellant from the roof of the house of the Zibrail Ansari and further recovered a long spring dagger stained with blood and fatty substance from eastern southern corner of the house. The informant Amanat succumbed to injury within hours. 3. The police registered Mandar P.S. Case No. 41 of 1998 doled 28.5.1998 and arrested the appellant from the roof of the house of the Zibrail Ansari and further recovered a long spring dagger stained with blood and fatty substance from eastern southern corner of the house. The police further recorded his confessional statement at 01.00 hours on 28.5.1998 of the appellant in which he confessed his guilt. Accordingly after investigation charge sheet was submitted against the appellant under Section 302 of the Indian Penal Code. 4. The case of the appellant was committed to the court of sessions for trial wherein he was charged on 28.7.1999 under Section 302 of the Indian Penal Code to which he pleaded not guilty and claimed false prosecution. The learned trial court after examining witnesses ultimately found and held the appellant guilty under Section 302 of the Indian Penal Code and sentenced him to serve R.I. for life and further to pay a fine of Rs. 5,000/- in default to serve imprisonment for six months. 5. The present appeal has been preferred on the grounds that the learned trial court has failed to appreciate the circumstances of this case wherein there is no eye witness of the occurrence. It is further submitted that most of the probable witnesses have turned hostile but the trial court relying upon alleged confessional statement and recovery of Chura has found and held him guilty. According to this memo of appeal the dagger so recovered and sent for forensic examination did not contain any blood stain. It is also asserted that the seized weapon was sharp and pointed and the nature of injuries do not fit with the alleged stabbing by the appellant. 6. Mr. A.K. Sahani, the learned Counsel for the appellant further submitted that the trial court has failed to consider the age of the appellant when this offence is alleged to have been committed. In this context the learned Counsel for the appellant drew our attentions towards the observation made in the disposal of the bail petition dated 7.7.2000 by the trial court that the appellant was assessed to be aged about 17 years in November 1999. Therefore the appellant must have been below 16 years of age at the time of alleged occurrence. In this context the learned Counsel for the appellant drew our attentions towards the observation made in the disposal of the bail petition dated 7.7.2000 by the trial court that the appellant was assessed to be aged about 17 years in November 1999. Therefore the appellant must have been below 16 years of age at the time of alleged occurrence. It was stressed that in all probability Amanat was killed by someone else out of enmity and the appellant has been implicated falsely in this case. 7. The learned Counsel for the State opposed this contention on the grounds that the appellant was immediately named by the deceased just before his death and the appellant himself has confessed his guilt thereafter before the police and other witnesses and the weapon of assault was also recovered on his disclosure with blood stained on it vide Ext.-3 &4. 8. We have given anxious consideration to the submissions made by the learned Counsel for the appellant and the materials on record. It is admitted case on records that Amanat Ansari received fatal stabbed wounds in the night of 27.5.1998 and he was removed for treatment at Mandar hospital where his statement was recorded by O.C. Mandar. P.S. Awadesh Kumar Singh (P.W. 8). This witness has immediately started investigation and arrested Aftab Ansari from the roof of the house of the Zibrail Ansari and on his disclosure recovered the weapon of assault from nearby land in presence of eyewitness and the appellant himself. The post mortem report clearly shows that the deceased has received stab wounds 1 "X cm in to Cavity deep on upper part of right abdomen and 2X1 c.m. cavity deep on front part of abdomen resulting in cutting out of abdominal wall of small intestine caused by sharp cutting and pointed weapon. The I.O. has sent the blood stained dagger for report by examination in forensic science laboratory, Ranchi. The report proved by P.W. 9 Shailendra Kumar Singh has been marked as Ext. -8 prepared by Senior Scientific Officer, D.N. Tiwari though the blood was not examined whether it belonged to human or animals. The learned Counsel for the appellant suggested that in absence of blood stains on the dagger the whole prosecution story stands falsified. 9. In this context we would like to go through the evidence available on the records of the eyewitnesses. The learned Counsel for the appellant suggested that in absence of blood stains on the dagger the whole prosecution story stands falsified. 9. In this context we would like to go through the evidence available on the records of the eyewitnesses. The prosecution has examined in all seven witnesses in absence of the informant (deceased). P.W. 1 Shakila Khatoon, P.W. 2 Guria alias Noorjahan are female inmates of the house of Zibrail Ansari where the appellant and deceased used to work. Both of them stated specifically that they were sleeping when they heard alarm raised by Amanat and rushed to the P.O., the landing of the staircase from roof and knew that the appellant has assaulted him with Chura. P.W. 1 frankly admitted that she did not know why Aftab has assaulted the deceased though she was related with both of them. She has admitted in cross examination that she was not an eye witness of the occurrence and both the Aftab and Amanat used to serve in the house for last 2-3 years. She was suggested that Amanat died because of improper treatment for which her husband was responsible. P.W. 2 Guria further slated that when she rushed at the place of occurrence Amanat was lying injured with stab injury on his stomach and he disclosed that Aftab has given these blows on him. She has further supported the details stated by the informant. According to her version both the appellant and the deceased were her cousin. However Zibrail, P.W. 4 has partly supported the prosecution version. According to him when he reached at the place of occurrence he found the deceased seriously injured but did not take the name of the appellant as assailant. The reason behind this may be the deceased as well as appellant were closely related with him. P.W. 3 Ramjan Ansari reached the place of occurrence on hulla raised by Amanat and rushed him to hospital. He has also been declared hostile. He has denied his statement before the police but admitted his signature on the fardbeyan (Ext. 1). P.W. 5 Sheikh Rashool has supported the prosecution story that when he reached the place of occurrence deceased Amanat informed that the appellant has caused the injury with Chura on his stomach. He has also been declared hostile. He has denied his statement before the police but admitted his signature on the fardbeyan (Ext. 1). P.W. 5 Sheikh Rashool has supported the prosecution story that when he reached the place of occurrence deceased Amanat informed that the appellant has caused the injury with Chura on his stomach. He has been cross examined at length in which he admitted that he has not seen the appellant giving Chura blow on the deceased but mentioned that when statement was recorded by the police Amanat was quite conscious. P.W. 6 is the doctor who has proved the post mortem report as (Ext.-2). The learned Counsel for the appellant suggested that the fard beyan was not given by Amanat as Zibrail has said that he saw the dead body of the informant when he reached at he place of occurrence. This suggestion is apparently not maintainable because the fardbeyan was recorded in presence of Zibrail and Ramjan with LTI of Amanat Ansari and they have not said that the fard beyan was not recorded in their presence. It further appears more improper that P.W. 1, 2, and 4 would implicate their own kith and kin in a false case. The recovery of dagger immediately thereafter also goes to prove that stab injury was caused with this weapon which was said to be recovered on disclosure made by the appellant. 10. This is a case in which witnesses arrived at the place of occurrence immediately after the occurrence. It is also said that the appellant has fled away after committing the offence to the roof of the house from where he was arrested by the police. It has also come on record that when he made disclosure, the weapon of assault along with bloodstain and fatty materials was recovered form nearby land. The Statement of Amanat Ansari recorded by the police at 00.15 hours within 45 minutes of the alleged occurrence described the manner in which the appellant has assaulted him. Therefore this statement deserves the respect, which the law has provided with as the last statement to the deceased, which should be treated as genuine and correct. Otherwise also the evidence on record shows that Aftab alongwith Amanat used to sleep in the house which was closed from inside and in the dead of night Amanat woke with bleeding injuries on his stomach. Otherwise also the evidence on record shows that Aftab alongwith Amanat used to sleep in the house which was closed from inside and in the dead of night Amanat woke with bleeding injuries on his stomach. The deceased has disclosed the name of the appellant as the assailant immediately after the occurrence. The defence has not brought any material in support of the plea of false implication. Therefore, We find and hold that he conviction of the appellant for causing stab injuries on Amanat in the night of 27.5.1998 stands proved beyond doubts. 11. At this stage, the learned Counsel for the appellant Mr. A.K. Sahani submitted that the appellant has remained through out in custody from 27.5.1998. It is further submitted that age of the appellant as per Medical report available in the L.C.R. was nearly seventeen years in July1999. As such, the appellant must be aged below 16 years on the date of the occurrence. It is further submitted that in such view of the fact the appellant would have committed the offence because of his premature mind and deserves sympathetic approach by this Court while awarding sentences. It is further submitted that the intention of the appellant was not to cause death rather to assault the deceased but unfortunately he died. The learned APP opposed this contention on the grounds that when dagger was used the appellant must have knowledge that his assault may result in death of the informant (Amanat Ansari). 12. Having gone through the materials on record and the statement of the deceased, Amanat Ansari in the fardbeyan, it appears that for a petty dispute over sharing of Rupees Five Note and dispute of giving Rupees Five torn note to the deceased, altercation had taken place between the appellant and deceased. It is also found that on the date of occurrence when deceased returned Rs. Five in same coins, the appellant felt insulted and the unfortunate incident took place. It is also an admitted fact on record that the deceased and the appellant were related closely. However with the stabbing on the stomach the deceased succumbed to his injury. 13. Having considered the above stated facts and circumstances we are of the considered view that the same does not indicate that the appellant had any intention to cause death of Amanat when he stabbed him. However with the stabbing on the stomach the deceased succumbed to his injury. 13. Having considered the above stated facts and circumstances we are of the considered view that the same does not indicate that the appellant had any intention to cause death of Amanat when he stabbed him. In such view of the facts the offences committed by the appellant Aftab Ansari is squarely covered under Section 304 part II of the Indian Penal Code, culpable homicide not amounting to murder as the act was done with knowledge but without any intention to cause death of Amanat Ansari. Accordingly the sentence of R.I. for life awarded to the appellant by the trial court deserves to be modified to R.I. for 10 years with fine of Rs. 5,000 in lieu thereof further to serve S.I. for six months. In result this appeal is dismissed with modification of sentences as aforesaid. 14. Let a copy of this judgment along with original case records be sent to the concerned lower court immediately for information and needful.