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2014 DIGILAW 691 (JHR)

Ishak Ansari v. State of Jharkhand

2014-07-03

AMITAV K.GUPTA, D.N.PATEL

body2014
JUDGMENT Per D.N.Patel, J. 1. This appeal has been preferred against the judgment and order of conviction and sentence, passed by the Additional District and Sessions Judge, Fast Track Court, Koderma in Sessions Trial No. 463 of 2003 dated 29/30th June, 2005 whereby, this appellant has been convicted for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and fine of Rs. 10,000/and in case of default of the fine he will further sentenced to undergo simple imprisonment for one year. 2. It is the case of the prosecution that on 09.05.2002, the informant Md Aziz (P.W.4) gave fardbeyan to police that he is resident of village Jataha and Gulshan Khatoon (deceased), who is the daughter of Tahir Hussain, who is the neighbour of the informant, was married with one Ishak Ansari of village Bela according to Muslim rites and customs 5 years ago. After marriage Gulshan Khatoon protested against the illicit relationship of her husband with Zaina Khatoon, who is the wife of her husband elder brother (Gotni) and due to this reason she was beaten up by her husband Ishak, fatherinlaw Salim and Zaina Khatoon (Gotni). Then the deceased complaint about the same to the informant and the informant convinced the husband and father-in-law of deceased and she started living in her-in-law house. But before 34 days from that day, the deceased was again beaten up by her husband, father-in-law and Gotni and on complaint of the deceased, the informant and other villagers gone to the house of the deceased in laws and convinced them and then they assured the informant that they will not beat the deceased again. The informant further alleged that day in the morning, Salim Ansari, who is the father-in-law of the deceased came to his house and informed him regarding the death of Gulshan Khatoon and when the informant asked him reason about her death then he run away from there. Thereafter, the informant and villagers Afzal Ansari, Gafoor Mian and Idrish Mian came to the house of the deceased and saw swelling around the neck of the deceased having black spot and her bangles were broken. Thereafter, the informant and villagers Afzal Ansari, Gafoor Mian and Idrish Mian came to the house of the deceased and saw swelling around the neck of the deceased having black spot and her bangles were broken. The informant further alleged that local resident informed him that in night the deceased husband Ishak Ansari, father-in-law Salim Ansari and her Gotni Zaina Khatoon murdered the deceased in her house by throttling and her dead body was kept in eastern room of the house. 3. Following four witnesses were examined by the prosecution: P.W1 Hiraman Mian Declared hostile witness. P.W2 Asgar Ali He has proved his signature and signature of Devi Yadav in the Inquest report i.e marked as Ext. 1 and 1/1. P.W3 Afzal Ansari He is the Hearsay witness. P.W4 Md. Aziz He is the informant of this case. He has proved his signature and signature of Abdul Rashid in the fardbeyan i.e. marked as Ext.2 and 2/1. He is the informant of this case. He has proved his signature and signature of Abdul Rashid in the fardbeyan i.e. marked as Ext.2 and 2/1. 4. We have heard counsel for the appellant at length, who has submitted that the learned trial court has not appreciated that there are major omissions, contradictions and improvements in the depositions of the prosecution witnesses. The prosecution has failed to prove the offence of murder of Gulshan Khatoon by this appellant beyond reasonable doubt. The prosecution has examined only four witnesses out of which P.W.1 has turned hostile. PW.2 is witness of Inquest Report Panchnama, P.W.3 and P.W.4, are the hearsay witnesses. P.W.3 is covillager of the village of father of the deceased and P.W.4 in his deposition in paragraph nos. 7, 14 and 15 has stated that he has no personal knowledge, but, upon information given by someone he is giving deposition. Thus, the prosecution has not proved the offence of murder against this appellant. Moreover, there is no charge of Section 304 B of the Indian Penal Code and hence, there is no presumption against this appellant and there is no burden of proof/onus of proof upon the appellant accused. It is the prosecution to prove the offence beyond reasonable doubt. Thus, the prosecution has not proved the offence of murder against this appellant. Moreover, there is no charge of Section 304 B of the Indian Penal Code and hence, there is no presumption against this appellant and there is no burden of proof/onus of proof upon the appellant accused. It is the prosecution to prove the offence beyond reasonable doubt. In this case, the doctor has not been examined at all, so the prosecution has failed to prove whether the death is accidental or natural and against other named accused in the F.I.R., no chargesheet has been filed. These aspects of the matter have not been properly appreciated by the learned trial court. 5. It is further submitted by the counsel for the appellant that since date of occurrence i.e. from 08.05.2002, the appellant is in judicial custody. Thus, approximately 12 years and 02 months, this appellant has already remained in jail. 6. We have heard counsel for the State A.P.P., who has submitted that no error has been committed by the learned trial court in appreciating the evidences on record. The prosecution has proved the offence of murder of Gulshan Khatoon committed by this appellant beyond reasonable doubt. It is submitted by the counsel for the A.P.P. that the most important witnesses are P.W.3 and P.W.4, who have stated in their depositions that there were illicit relationship between this appellant and Zaina Khatoon (wife of elder brother of the present appellant) and hence, he has committed murder of his wife namely, Gulshan Khatoon. It is submitted by the A.P.P. that the murder has taken place in the house of this appellant and there were injuries upon the body of the deceased. The postmortem report is also on record. P.W.3 and P.W.4 are independent witnesses. These aspects of the matter have been properly appreciated by the learned trial court. The married life is approximately 5 years. When the murder is taking place in the house of the appellant, who is husband of the deceased, then it is his duty to explain the circumstance that in what circumstance his wife expired as per Section 106 of the Indian Evidence Act. 7. The married life is approximately 5 years. When the murder is taking place in the house of the appellant, who is husband of the deceased, then it is his duty to explain the circumstance that in what circumstance his wife expired as per Section 106 of the Indian Evidence Act. 7. It is further submitted by the counsel for the State A.P.P. that both the witnesses P.W.3 and P.W.4 had gone at the house of the deceased before four days and they had tried to explain this appellant not to have illicit relationship and to have cordial relationship with the deceased, but, no useful purpose has been served to this taught. Looking to these evidences on record, it appears that this appellant has committed murder of his wife and hence, the judgment and order of conviction and sentence passed by the learned trial court may not be altered by this Court in this criminal appeal. 8. Having heard the counsels for both the sides and looking evidences on record it appears that P.W.4, who is neighbour of the father of the deceased, has given fardbeyan before Markacho Police Station on 9.5.2002 at about 16 hours that on a previous night i.e. on 08.05.2002 night, he came at the house of the deceased Gulshan Khatoon alongwith other persons and they saw the dead body of Gulshan Khatoon at the house of this appellant. There were injuries upon the body of the deceased. There were illicit relationship between this appellant and Zaina Khatoon, who is wife of the elder brother of this appellant, and therefore, he was always beating Gulshan Khatoon and before 34 days, he alongwith fatherinlaw of the deceased came at the house of this appellant tried to convince him not to beat the deceased, but, on 08.05.2002, she was so seriously beaten that she expired on the spot. On the basis of this fardbeyan the investigation carried out by Markacho Police Station, statement of several witnesses were recorded and the chargesheet was filed and the sessions case was committed to the learned trial court being Sessions Trial No. 463 of 2003 and on the basis of the evidence given by P.W.1, P.W.2, P.W.3 and P.W.4, the Additional District and Sessions Judge, F.T.C., Koderma, has convicted this appellant for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code for life imprisonment. 9. 9. Looking to the overall case of the prosecution, there are three important witnesses. P.W.1, P.W3 and PW.4. P.W.1 has turned hostile. P.W.2 has proved Inquest Report Panchnama and he has proved his signature as Exhibit1 and 1/1. The dead body was at the house of this appellant. 10. Looking to the deposition given by P.W.3, it appears that he is covillager where father of the deceased was stayed. Looking to the deposition of this witness he has stated that there were illicit relationship between this appellant and Zaina Khatoon. This is a major reason for causing murder of the deceased. He has also stated that before 34 days he had gone to convince this appellant not to have illicit relationship with Zaina Khatoon and not to beat Gulshan Khatoon (deceased). Looking to his cross-examination, it has been stated by this witness that the deceased Gulshan Khatoon was not coming at the residence of P.W.3 and there was no talk after the marriage and before death of Gulshan Khatoon (deceased). He has also stated in his cross-examination that he has no evidence of any illicit relationship between this appellant and Zaina Khatoon. Thus, it appears that this witness is hearsay witness. He has not seen the murder committed by this appellant nor the deceased was coming at his residence and he has also stated that he has never talked with the deceased after marriage and before the death of the deceased. Thus, it appears that P.W.3 is co-villager of the father of the deceased so he must have heard all these allegations etc. from the father of the deceased or from the relatives of the deceased. This witness has not been examined by the prosecution. Neither the father of the deceased nor any other relatives of the deceased has ever been examined by the prosecution. Thus, this P.W.3 is not proving the offence of murder beyond reasonable doubt. P.W.3 has also stated in cross-examination that he was informed by the mother of the deceased Gulshan Khatoon that she has expired and the mother of the deceased has never conveyed any reason to P.W.3 for the death of the deceased. Thus, the story of illicit relationship and meeting etc. were not at the initial stage with P.W.3. Mother of the deceased was also informed by the fatherinlaw of the deceased. Thus, the story of illicit relationship and meeting etc. were not at the initial stage with P.W.3. Mother of the deceased was also informed by the fatherinlaw of the deceased. Thus, P.W.3 is absolutely a hearsay witness and he is not proving murder beyond reasonable doubt. 11. Looking to the deposition of P.W.4, who is an informant and neighbour of the father of the deceased, he has given his fardbeyan before the police station. He is proving his fardbeyan as Exhibit 2 and 2/1. This witness has stated that the death has taken at the house of this appellant. There were marks of the injuries upon the body of the deceased and because of the illicit relations with this appellant and Zaina Khatoon, this murder has taken place. Before 34 days of the incident he alongwith several other persons had visited the house of this appellant to convince the appellant not to have illicit relations with Zaina Khatoon and not to beat the deceased Gulshan Khatoon. We have also perused the cross-examination of this witnesses and he has stated in his cross examination in paragraph no. 7 that he is hearsay witness and whatever he has heard he is narrating before the court. He has no personal knowledge of the incident at all. Further looking to paragraph no. 14 of the deposition of P.W.4 also he is not an eye witness of any of the incident of beating Gulshan Khatoon by this appellant or by any one else. Looking to further paragraph no. 15, P.W.4 has stated that what was conveyed to him and what was told him to give the deposition that type of deposition he has given at the instance of someone else. Thus, absolutely P.W.4 is hearsay witness. He is tutor witness. Some body has insisted to say all these facts before the court and therefore, he is saying. He is untrustworthy and unreliable witness and he has not proved the offence of murder of the deceased beyond reasonable doubt. These matters have not been properly appreciated by the learned trial court. 12. Learned counsel for the State APP stated that the offence of murder has been committed by this appellant after 5 years of married life and therefore, there is presumption against him and this appellant has to prove under what circumstances, Gulshan Khatoon has expired in his own house. 12. Learned counsel for the State APP stated that the offence of murder has been committed by this appellant after 5 years of married life and therefore, there is presumption against him and this appellant has to prove under what circumstances, Gulshan Khatoon has expired in his own house. Looking to the charges levelled against this appellant, it appears that there is no charge under Section 304 B' of the Indian Penal Code. There is no presumption against this appellant and onus of proof is also not upon this appellant on the contrary, the burden of proof is upon the prosecution to prove the offence of murder committed by this appellant beyond reasonable doubt and the prosecution has failed to prove the offence of murder of Gulshan Khatoon by this appellant beyond reasonable doubt. 13. This appellant remained in jail since the date of occurrence i.e 8th May, 2002 for approximately 12 years and two months. 14. In the facts and circumstances discussed above, this criminal appeal is allowed and the impugned judgment of conviction and order of sentence dated 29/30th June, 2005, passed by the Additional District and Sessions Judge, Fast Track Court, Koderma in Sessions Trial No. 463 of 2003 is quashed and set aside. The appellant is acquitted from the charges levelled against him. The appellant namely, Ishak Ansari, is directed to be released forthwith from the jail custody, if not wanted in any other case.