Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 801 (JHR)

Mobin Ansari v. State of Jharkhand

2008-07-23

D.P.SINGH, M.Y.EQBAL

body2008
JUDGMENT: M. Y. Eqbal, J.- This appeal is directed against the judgment of conviction dated 29.3.2003 and order of sentence dated 1.4.2003 passed by 5th Add!. Judicial Commissioner, Ranchi in Sessions Trial No. 638 of 2000 whereby the appellant has been convicted under Section 302 and 201 of the Indian Penal Code and has been sentenced to undergo R.1. for life under Section 302 I.P.C. and R.1. for three years under Section 201 I.P.C. 2. The brief facts of the prosecution case is that the deceased Taimun Khatoon, daughter of informant Riyasat Ansari, resident of Village Bijuliya, P.S. Ratu, District Ranchi was married to the accused-appellant Mobin Ansari, resident of the same village four years ago as per the Muslim rites and customs. Prior to this marriage, the appellant was already married with another lady. The prosecution further case is that the accused-appellant started harassing the deceased daughter of the informant. It is alleged that five day? prior to the occurrence, the accused dropped the deceased to her parents, house and returned. On 1.5.2000 at about 7.00 p.m. accused came to the house of the informant and told him to allow his wife to go with him as he had to surrender in Court in a particular case on 2.5.2000. The informant then inquired from his daughter Taimun Khatoon, now deceased, who agreed to go with him and thereafter, they sent her off with the accused. Further case of the prosecution is that on 2.5.2007 at 7.00 a.m., the informant went to the house of the accused and inquired about his daughter. Then the father of the accused, namely, Rafique Ansari and his mother told the informant that the accused had not come with his wife in the house. On being suspected, the informant started inquiring, in the village. Then he learnt that a dead body of a girl was floating in the well belong to Mustaquim Ansari. The informant alongwith his family members went there and in the meantime, police had also reached. The dead body was taken out from the well which was identified to be the dead body of Taimun Khatoon, his daughter. It is alleged that accused after having murdered her by strangulation threw her dead body into the well. The informant alongwith his family members went there and in the meantime, police had also reached. The dead body was taken out from the well which was identified to be the dead body of Taimun Khatoon, his daughter. It is alleged that accused after having murdered her by strangulation threw her dead body into the well. On the basis of the fardbeyan of the informant, a case was registered in the Ratu Police Station being Ratu P.S. Case No. 45 of 2000 under Sections 302, 201 I.P.C. The Investigating Officer after investigation submitted charge-sheet under Sections 302, 201 I.P.C. against the accused and cognizance was taken and finally the case was committed to the Court of Sessions. 3. Charges were framed against the accused under Sections 302 and 201 of the I.P.C. to which he pleaded not guilty and claimed to be tried. The accused was also examined under Section 313 Cr.P.C. 4. Before the Sessions Court, the prosecution examined six charge-sheet witnesses. The informant Riyasat Ansari was examined as PW. 4 who is father of the deceased. In his deposition, he has reiterated what he had stated in his fardbeyan. Narrating the incident in his evidence, he deposed that his daughter Taimun Khatoon was married to the accused four years back. Five days prior to the occurrence, the accused dropped her in his house and returned. In the evening of the date of occurrence, the accused came to his house and requested him to send his daughter with him. Accordingly, the informant allowed his daughter to go with the accused. The informant further stated in his testimony that the accused used to maltreat his daughter. So in the next morning, he went to the house of the accused to meet her. But the mother of the accused told him that the accused and his daughter (deceased) have not returned her house. The informant then narrated the incidence to the villagers who told that the dead body of a girl was floating in the well. Then, the informant alongwith his family members went there. The police also arrived there and the dead body was taken out from the well which he identified the dead body of his daughter. 5. P.W. 1 Rashid Ansari, who is brother of the dead, corroborated the prosecution case and stated that his sister Taimun Khatoon was married to the accused Mobin Ansari four years back. The police also arrived there and the dead body was taken out from the well which he identified the dead body of his daughter. 5. P.W. 1 Rashid Ansari, who is brother of the dead, corroborated the prosecution case and stated that his sister Taimun Khatoon was married to the accused Mobin Ansari four years back. She was tortured by her in-laws for extracting dowry. Five days prior to the occurrence, the accused had dropped her sister in his house. In the evening of 1.5.2000, the accused came to the house and took his wife saying that he had to surrender in Court on the next day. The witness further deposed that on the next day, his father went to the house of the accused to inquire about his sister. There he was informed that they had not returned to the home. The witness further corroborated the facts that his sister was found floating in the well belong to one Mustaquim Mian which was taken out in the presence of the villagers. The mother of the deceased is also a charge-sheet witness who has corroborated the prosecution case. She stated as PW. 2 that the accused used to torture her daughter for the purpose of dowry. She has confirmed this fact that the accused had taken his wife from her house saying that he had to surrender in Court and she allowed her to go with the accused and in the next morning, she had seen the dead body of her daughter which was taken out from the well. PW. 3 Razzak Ansari is also another brother of the deceased. He has also fully corroborated the facts stated by the informant. In crossexamination, this witness has admitted that the accused used to torture his sister. PW. 5 is the Investigating Officer who confirmed the fact that the dead body of the deceased was found floating in the well belonging to Mustaquim Ansari and the said dead body was taken out with the help of the villagers and accordingly, he prepared inquest report marked Ext. 2. He also confirmed that the fardbeyan of the informant was recorded and was marked Ext. 1. He also proved F.I.R. which was marked Ext. 3. The last prosecution witness is PW. 6 who is the doctor who conducted autopsy on the dead body and found ante mortem injuries on the dead body. 2. He also confirmed that the fardbeyan of the informant was recorded and was marked Ext. 1. He also proved F.I.R. which was marked Ext. 3. The last prosecution witness is PW. 6 who is the doctor who conducted autopsy on the dead body and found ante mortem injuries on the dead body. According to the opinion of the doctor, the death was caused due to combined effect of strangulation and drowning and abrasions were caused by hard and blunt substance. 6. The trial Court considering all the evidences, came to the conclusion that there remains no doubt that it was the accused who has committed murder of the deceased. The Court further held that the prosecution has succeeded in establishing the charges levelled against the accused beyond all reasonable doubts. 7. Mr. A.K. Kashyap, learned counsel appearing for the appellant, assailed the impugned judgment as being contrary to law, facts and circumstances of the case and the prosecution completely failed to prove the case beyond all reasonable doubts. Learned counsel submitted that even the manner and mode of occurrence could not be established by adducing evidence by the prosecution. Learned counsel submitted that all the prosecution witnesses are the members of the same family and they were highly interested witnesses whose version should not be completely relied upon. Learned counsel further submitted that not a single witness belong to the same village was examined to corroborate the facts stated by the informant and other prosecution witnesses. Learned counsel lastly submitted that the conviction based on circumstantial evidence cannot be sustained in law. 8. Admittedly, there is no eyewitness to the occurrence, but the conviction is based on circumstantial evidence. There is no doubt that conviction can be based on the circumstantial evidence, but it should be tested by the touchstone of law relating to circumstantial evidence, as held by the Supreme Court in series of decisions. In a leading case of Hanumant Govind Nargundkar vs. State of M.P. AIR 1952 S.C. 343 , the Supreme Court while discussing the evidentiary value of circumstantial evidence observed:- "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts. so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude eve/}' hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and It must be such as to show that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have not been able to discover any such evidence either intrinsic within Exhibit P-3-A or outside and we are constrained to observe that the courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case." 9. In another case of Bhagat Ram vs. State of Punjab [ AIR 1954 S.C. 621 ] the Supreme Court observed that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 10. In the case of Ram Singh vs. Sonia [ (2007)3 SCC. 1 ] in the case of murder of parents and other family members, the conviction was based on circumstantial evidence. The Supreme Court while considering the relevancy of circumstantial evidence for passing a judgment of conviction held as under:- "38. Insofar as circumstantial evidence as against A-2 is concerned, the courts below have very elaborately discussed the material produced by the prosecution while accepting each of the circumstances. In the normal course, there would have been no need for us to go into these circumstances as elaborately as was done by the two courts below in an appeal filed under Article 136 of the Constitution of India, especially when the finding qua conviction is concurrent. However, taking into consideration that the accused were awarded death sentence by the trial court, which has been converted into life imprisonment by the High Court, and that the case in hand is one of circumstantial evidence, we think it appropriate and in the interest of justice to reappreciate the evidence. 39. However, taking into consideration that the accused were awarded death sentence by the trial court, which has been converted into life imprisonment by the High Court, and that the case in hand is one of circumstantial evidence, we think it appropriate and in the interest of justice to reappreciate the evidence. 39. The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof, for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions." 11. In the case of Shivu vs. Registrar General, High Court of Karnataka [ (2007)4 S.C.C. 713 ] the Supreme Court discussed in detail about the circumstantial evidence in a criminal trial. "12. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when a/l the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. "12. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when a/l the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh vs. State of Rajasthan, Eradu vs. State of Hyderabad, Earabhadrappa vs. State of Karnataka, State of UP. vs. Sukhbasi, Balwinder Singh vs. State of Punjab and Ashok Kumar Chatterjee vs. State of M.P) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of Punjab it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt." 12. In the case of Deepak Chandra Kant Patil vs. State of Maharastra [ (2006)10 S.C.C. 151 ] the conviction was upheld by the Supreme Court on the basis of circumstantial evidence. In that case, the fact was that the accused had gone to see of his daughter to Parbhani Railway Station, since she was to go on a school trip organized by her school. Another accused was also present at the Railway Station. The son of the deceased was also a member of the group which was going on school trip to different places. The circumstantial evidence was that the deceased was last seen by his wife and son when he accompanied the appellant using his own motorcycle to meet another accused. The conviction was based on circumstantial evidence, The Supreme Court upholding the conviction held as under:- "13. It has been submitted by the learned counsel for the appellant that there is no direct evidence to prove the participation of the appellant in the commission of the offence in view of the rejection of the evidence of the eyewitnesses. The conviction was based on circumstantial evidence, The Supreme Court upholding the conviction held as under:- "13. It has been submitted by the learned counsel for the appellant that there is no direct evidence to prove the participation of the appellant in the commission of the offence in view of the rejection of the evidence of the eyewitnesses. In a case based on circumstantial evidence, there may be no direct evidence to prove the manner of assault or the actual participation of an accused in the assault on the deceased resulting in his death, but if the circumstantial evidence is conclusive in nature, a conviction on the basis of such circumstantial evidence may be recorded. It must be shown that the circumstances established on record are incriminating in nature, and the chain of circumstances established by the prosecution is so complete as not to be consistent with any other hypothesis except the guilt of the accused. 14. Learned counsel for the appellant also submitted before us that the evidence of PWs 15 and 13 to the effect that the deceased was last seen in the company of the appellant became irrelevant in view of the fact that the prosecution had (sic not) led direct evidence to prove the assault on the deceased. In our view, the submission does not help the appellant. In this case, the circumstance that the deceased was last seen by PWs 15 and 13 in the company of the appellant, is a circumstance which considered with other evidence on record has been found to prove the guilt of the accused. It is not as if the prosecution has tried to set up a case other than what was sought to be proved by the eye-Witnesses examined the case who turned hostile. Since the eyewitnesses turned hostile, the circumstance that the appellant had accompanied the deceased and was last seen by him was only treated as one of the circumstances in the chain of circumstances to prove his guilt. 15. In the instant case, we are satisfied that the trial court and the High Court rightly appreciated the evidence on record and the circumstances proved against the appellant conclusively prove his guilt. Mere fact that there is no evidence to show that he actually assaulted the deceased may not be of any consequence in the facts and circumstances of this case. Mere fact that there is no evidence to show that he actually assaulted the deceased may not be of any consequence in the facts and circumstances of this case. We may only observe that in the face of the reliable evidence on record that the deceased had accompanied him at 10.30 p.m. on 29. 12. 1998, the accused-appellant did not offer any explanation as to whether they parted company thereafter. The fact that he knew about the dead body of the deceased lying in the garden behind the house of A-1 is almost clinching in nature and leaves nothing to doubt. Having considered the evidence on record, we are satisfied that there is no justification for interference with the order of conviction and the sentence imposed on the appellant. This appeal is, therefore, dismissed." 13. In another case of State of Rajasthan vs. Kashi Ram [ (2006)12 S.C.C. 254 ] the conviction was based on circumstantial evidence. In that case, the accused was married to the deceased about 7 years before the occurrence. They were blessed with two children. It appeared from the record that the relationship between them was not cordial and there were incidence of respondent assaulting the deceased and treating her with cruelty. The result was that the deceased stayed with her parents. Later on, on assurance of the parents, the deceased-wife was sent to her matrimonial home. The prosecution case was that the accused killed his wife and two daughters and thereafter disappeared. The Supreme Court observed:- "23. It is not necessary to Multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd." 14. From the judicial pronouncement, it is now well settled that where a case is based on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference has to the guilt of the accused is drawn have to be proved beyond all reasonable doubts and have to be shown closely connected with the principal fact sought to be inferred from those circumstances. Further, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consisted with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. Therefore, the Court must satisfy itself that various circumstances in the chain of events have been established clearly, and such completed chain of evidence must be such as to rule out a reasonable likelihood of the innocence of the accused. 15. In the case of Gagan Kanojia vs. State of Punjab [(2006)13 S.C.C. 516] his Lordship of the Supreme Court held as under:- 9. The prosecution case is based on circumstantial evidence. 15. In the case of Gagan Kanojia vs. State of Punjab [(2006)13 S.C.C. 516] his Lordship of the Supreme Court held as under:- 9. The prosecution case is based on circumstantial evidence. Indisputably, charges can be proved on the basis of the circumstantial evidence, when direct evidence is not available. It is well settled that, in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done by the accused. It is, however, necessary for the courts to remember that there is a long gap between "may be true" and "must be true". Prosecution case is required to be covered by leading cogent, believable and credible evidence. Whereas the court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to the guilt of the accused and the other to his innocence, the defence available to the accused should be accepted, but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, not trustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not indicated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on record and analyse and assess the same objectively. 10. We would proceed on the well-known principles in regard to appreciation of the circumstantial evidence which were noticed by the High Court in the following terms: "(1) There must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. (2) Circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. (2) Circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. (3) There should be no missing links but it is not that every one of the links, must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. (4) On the availability of two inferences, the one in favour of the accused must be accepted. (5) It cannot be said that prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise. " 16. The submission of Mr. A.K. Kashyap, learned counsel appearing for the appellant, that no independent witness has been examined by the prosecution, although houses of the informant and the appellant are situated in the same village at a stone-throw distance, cannot have any relevance in the facts and circumstances of the case. The undisputed facts which came in evidence are that the deceased was the second wife of the accused-appellant and before the marriage, the appellant remained in jail for about four years in connection with another case for the offence alleged to have been committed by him. It is also not in dispute that after the occurrence, the appelIant surrendered in another case. Admittedly therefore, the appellant is accused in more than one criminal case. Because of his criminal antecedent, villagers might not have become the prosecution witness, 17. This Court can take judicial notice that now-a-days in cases where the accused is involved in several criminal cases, then the common people despite knowing about the incidence, keep themselves aloof and do not come forward to give evidence as prosecution witnesses. This is one of the strongest reasons to rely on the evidence of the prosecution witnesses who are the family members of the deceased. In the instant case, the accused has failed to shake the credibility of the prosecution witnesses and the prosecution has been able to prove the case with the assistance of the witnesses. The submission of Mr. This is one of the strongest reasons to rely on the evidence of the prosecution witnesses who are the family members of the deceased. In the instant case, the accused has failed to shake the credibility of the prosecution witnesses and the prosecution has been able to prove the case with the assistance of the witnesses. The submission of Mr. A.K. Kashyap that conviction on the basis of evidence of interested witnesses is not justified, can also not be accepted. 18. As stated above, in the instant case, because of the criminal antecedent of the accused, the villagers have not come forward as a witness and in such a situation, the close relatives are the only witnesses and they cannot be said to be the interested witnesses and on that ground, their testimony cannot be rejected. It is worth to mention here that the appellant also opted to examine witnesses in defence and as a matter of fact, three defence witnesses were examined, but they have not uttered a single word about the occurrence or in defence. 19. On analysis of the entire facts and the evidence, it is evident that the deceased was the second wife of the appellant who used to torture and harass her and she was subjected to cruelty. Before the occurrence, the deceased was sent to her parents' house and in the evening of 1.5.2000, the accused took the deceased to his house on the saying that he had to surrender in the Court on 2.5.2000. But admittedly, the deceased did not return with accused to her matrimonial home, rather on the next morning, her dead body was found floating in the well. Further it is clear from the evidence that the accused was last seen with the deceased when he took her from her parents' house. No explanation has come forward from the side of the accused as to how and when he parted her company. The accused, therefore, miserably failed to give reasonable explanation in discharging of the burden cast upon him. In such circumstances when the ace used failed to throw any light upon the facts especially within his knowledge, conviction can be based on strong circumstantial evidence. The trial Court, therefore, rightly held that the various circumstances in the chain of evidence have been clearly established which rule out reasonable likelihood of the innocence of the accused. 20. In such circumstances when the ace used failed to throw any light upon the facts especially within his knowledge, conviction can be based on strong circumstantial evidence. The trial Court, therefore, rightly held that the various circumstances in the chain of evidence have been clearly established which rule out reasonable likelihood of the innocence of the accused. 20. Considering the entire facts and circumstances available on record and the law discussed herein above, we do not find any infirmity in the impugned judgment passed by the Learned Sessions Court. The judgment of conviction and sentence is, accordingly, affirmed. This appeal having not merit is dismissed.