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2006 DIGILAW 119 (JHR)

Kadir Ansari v. State of Jharkhand

2006-02-15

M.Y.EQBAL, N.DHINAKAR

body2006
By Court.- The appellants were arrayed as A-1 and A-2 before the Sessions Judge, Gumla. They were tried for the offences punishable under Sections 302, 201/34 of the Indian Penal Code on the allegation that on 7.6.1987 they caused the death of the deceased, Rojan Mian by beating him with a hammer and thereafter, burried the dead body in the mud at the brick kiln, where he was working with his wife, Munna Bibi, the 2nd appellant herein. 2. The Trial Judge finding the appellants guilty of the charges, while sentencing each one of them imprisonment for life under Section 302 of the Indian Penal Code, sentenced each one of them to undergo imprisonment for a period of three years rigorous imprisonment under Section 201 of the Indian Penal Code. Hence, the present appeal. 3. The 2nd appellant, Munna Bibi, is the wife of the deceased Rojan Mian. The deceased Rojan Mian and the 2nd appellant, Munna Bibi were working as labourers at a brick kiln of which PW-1 was the owner. PW-4 is the son of Farzan Mian. On 15.6.1987, one Mubarak Mian, who was working in the brick kiln, met PW-4, Kurban Mian, brother of the deceased, and wanted to meet the deceased. PW-4, in turn, informed Mubarak Mian that his brother has not come back to his house. Mubarak Mian went away from the house. PW-2, Shamim Mian and PW-4 thereafter proceeded to brick kiln at Asni to find out the whereabouts of his brother, Rojan Mian, who could not be found. They stayed at Gumla for some days and during that period they were searching for the deceased. Later, on returning home, they found Munna Bibi, the 2nd appellant, who in presence of two witnesses, was asked to give a statement and then, according to the prosecution, she stated that her husband was murdered and his dead body had been• burried in the mud. Fardbayan, Ext. 2, was given by PW-4 to the police and investigation was taken up. On taking up of investigation, PW-8 conducted inquest by preparing the inquest report, Ext. 3. After the inquest, the body of the deceased was sent to the hospital with a request to the doctor to conduct autopsy on the dead body of Rojan Mian. Fardbayan, Ext. 2, was given by PW-4 to the police and investigation was taken up. On taking up of investigation, PW-8 conducted inquest by preparing the inquest report, Ext. 3. After the inquest, the body of the deceased was sent to the hospital with a request to the doctor to conduct autopsy on the dead body of Rojan Mian. On receipt of the requisition, PW-7, the Medical Officer, conducted the autopsy and he found the following injuries: (i) Fracture of right frontal bone 4" x 2". Brain matter was liquified. (ii) Fracture of left 2nd, 3rd and 4th ribs. (iii) Stomach contained undigested food materials. The doctor issued post mortem certificate, Ext. 1. In his opinion, the death could have been caused on account of the injuries and the said injuries could have been caused with a hammer, as there was fracture on the right frontal bone and that there was also fracture of 2nd, 3rd and 4th ribs. After completion of investigation, the final report was filed against the appellants. 5. When questioned under Section 313 of the Code of Criminal Procedure, the appellants denied all the incriminating circumstances, appearing against them and no witness was examined on their side. 6. The learned counsel appearing for the appellants submits that the prosecution, though succeeded in establishing the cause of death of Rojan Mian by examining the doctor and marking the post mortem certificate, failed to establish that the deceased was murdered by the appellants. The learned counsel further contends that the statement alleged to have been given by the 2nd appellant, Munna Bibi, cannot be made admissible in terms of Section 24 of the Evidence Act and the prosecution also failed to examine the two witnesses, who were allegedly present at the time when she allegedly gave an oral statement to PW-4 and PW-6, Jasim Ansari. 7. We, on the above contention, heard Mr. B.Y. Kumar, appearing for the State. 8. As submitted by the learned counsel, the prosecution has succeeded in establishing the cause of death of Rojan Mian, since the same stands proved through the evidence of the doctor, who conducted autopsy and who issued Ext. 1, the post mortem certificate. 9. 7. We, on the above contention, heard Mr. B.Y. Kumar, appearing for the State. 8. As submitted by the learned counsel, the prosecution has succeeded in establishing the cause of death of Rojan Mian, since the same stands proved through the evidence of the doctor, who conducted autopsy and who issued Ext. 1, the post mortem certificate. 9. The prosecution before the trial court, in order to establish that the appellants caused the death of the deceased, Rojan Mian, relied upon circumstantial evidence and also upon the alleged statement, said to have been given by the 2nd appellant, Munna Bibi to PW-4. 10. We will now consider whether the prosecution has succeeded in establishing all the links in the chain of circumstances The case of the prosecution is that the deceased, Rojan Mian and his wife Munna Bibi were working at a brick kiln, owned by PW-1, and that on 7.6.1987 the deceased was murdered. According to the prosecution, one Mubarak Mian, who was working in the brick kiln, met PW-4, the brother of the deceased, and wanted to meet the deceased, Rojan Mian, and on being informed that Rojan Mian had not come to the house, said Mubarak Mian left the house. According to PW-4, on coming to know that his brother is not at the brick kiln, he went and searched for his brother as well as his wife, Munna Bibi. After the unsuccessful attempt to trace his brother, he returned home and that according to him the 2nd appellant, Munna Bibi, when threatened gave statement that the deceased, Rojan Mian was murdered and his body was burried. The above evidence of the prosecution, therefore, at best shows that the deceased and Munna Bibi were working at a brick kiln, owned by PW-1, and he was not seen alive after 7.6.1987. The evidence of the prosecution goes so far and not more. 11. We will now take up the evidence of PW-4 that the 2nd appellant, Munna Bibi, confessed the guilt. According to PW4, on returning home after searching for his brother, he found Munna Bibi in the house and when threatened in the presence of Jasim Ansari, PW-6, she gave the statement stating that the deceased was murdered. The evidel1ce of PW-4 itself is to the effect that the 2nd appellant was threatened and thereafter she gave the statement. According to PW4, on returning home after searching for his brother, he found Munna Bibi in the house and when threatened in the presence of Jasim Ansari, PW-6, she gave the statement stating that the deceased was murdered. The evidel1ce of PW-4 itself is to the effect that the 2nd appellant was threatened and thereafter she gave the statement. If a statement is given by a person on being threatened, the said statement cannot be made admissible under Section 24 of the Evidence Act, since for any statement to be made relevant under the said Section, it must be made without any inducement, threat or promise. Admittedly, she was threatened and, therefore, she was alleged to have given her statement. 12. In view of the above evidence of PW-4, the statement of the 2nd appellant is inadmissible and this Court cannot place reliance upon the said statement. We also find it difficult to accept the prosecution case that the 2nd appellant gave statement to PW-4, on being confronted when she was found in the house. If the 2nd appellant had given a statement and later pointed the place from where the death body was taken out, then there was no need for the police to have summoned the services of the sniffer dog squad for the purpose of finding out the place where the death body was burried. The very fact that the police had to seek the assistance of the sniffer dog for the purpose of finding out the dead body of the deceased Rojan Mian clearly shows that the 2nd appellant could not have given any oral statement implicating herself and the 1st appellant with the crime and that she could not have also pointed out the place from where the 'dead body was recovered. In our view, the dead body must have been recovered after the arrival of the sniffer dog. It is also worthwhile to remember at this stage that the prosecution did not show as to what prompted the 2nd appellant to cause the death of her husband, Rojan Mian, in collusion with the 1st appellant. The prosecution failed to lead any evidence, even remotely that the 2nd appellant, the wife of the deceased, and the 1st appellant were inimical towards the deceased and, therefore, they murdered the deceased. The prosecution failed to lead any evidence, even remotely that the 2nd appellant, the wife of the deceased, and the 1st appellant were inimical towards the deceased and, therefore, they murdered the deceased. It could also be seen that the relationship between the 1st appellant and the 2nd appellant is such that there could not have been any illicit relationship between them for committing murder of the deceased, Rojan Mian. 13. In absence of any motive and in absence of any evidence, which will conclusively establish that the appellants have caused the death of the deceased, and in view of our finding that the statement of the 2nd appellant is not only doubtful but is also inadmissible, in terms of Section 24 of the Evidence Act, we cannot but acquit the accused-appellants and, accordingly, the appellants are acquitted. We, therefore, set aside the conviction and sentence imposed upon the appellants and allow the appeal. The appellants, who are on bail, are discharged from the liability of bail bonds.