Ajmul Ansari vs The State of Bihar

P.K. Sarkar, J.—This appeal is directed against the judgment and order dated 30.9.1994 of Sri Shyam Kumar Mishra, Additional Judicial Commissioner, Lohardaga, in S.T. No. 369/1991/47/1992.

The prosecution case as it appears from the fardbeyan, in brief, is that on 15.7.1990 at about 3.00 P.M. Janki Devi (deceased), mother of the informant was cutting grass in the field. The informant Sheo Shankar Sao (P.W. 4) and his brother Ram Shankar Sao (P.W. 5) were standing at the door of their house. At that time the accused-Appellant Ajmul Ansari came there armed with basull in his hand and a calf, and tied the calf on the ridge of the field for the purpose of grazing the maize crops from the informant''s field whereupon the informant''s mother protested and forbade the accused not to tie the calf there. This enraged the accused Appellant and he Started abusing the informant''s mother. Safique Ansari (P.W. 6) at that time came there and also asked the accused Appellant not to allow his calf to graze the maize crops of the informant. It is further alleged that accused-Appellant Ajmul Ansari then chased the mother of the informant armed with Basuli, who came near the door of her house, then the accused Appellant came there and assaulted the informant''s mother Janki Devi (deceased) on her neck and head as a result of which she fell down and died at the spot. On alarm several villagers arrived there and the accused Appellant fled away from the place of occurrence. It is further said that the Chaukidar was informed, who went to Kisko police station and on getting information the police arrived at the place of occurrence. The statement of Sheo Shankar Sao, the informant, was recorded. On the basis of the aforesaid statement a formal F.I.R. u/s 302 of the Indian Penal Code was registered against the accused Appellant. The police after completing the investigation submitted charge sheet in this case. The learned Trial Judge, who conducted the trial of the accused Appellant came to the conclusion that the accused committed the murder of the mother of the informant, Janki Devi. The trial Court therefore, convicted the accused Appellant u/s 302 of the Indian Penal Code and sentenced him to undergo R.I. for life. Being aggrieved by and dissatisfied with the aforesaid judgment and order, the present appeal has been filed.

The prosecution has examined 8 witnesses in this case; out of whom P.W. 4 Sheo Shankar Sao, is the informant of this case. P.W. 5 is Rama Shankar Sao, the brother of the informant. These two witnesses alongwith P.W. 6 Safique Ansari, according to the prosecution case, are the eye witnesses of the occurrence. From their deposition it appears that the informant (P.W. 4) and Rama Shankar Sao (P.W. 5) are minor boys. The trial Judge recorded the age of the informant as 15 years on 6.4.1994. Similarly he recorded the age of P.W. 5 as 12 years on the same day. The ingormant, however, told his age as 13 years and P.W. 5 gave his age as 12 years. The occurrence alleged to have taken place on 15.7.1990, thus, even if the calculation of age as done by the Trial Judge is accepted then the occurrence happened near about four years ago from the date of recording of the deposition and, thus, on that date P.W. 4 (informant) would have been aged about 11 years and P.W. 5 was aged about 8 years. Thus, both these witnesses were minor boys at the time of occurrence and it is expected that there is little possibility of their, being telling lies. Both these witnesses have clearly corroborated to each other and also the fardbeyan and the prosecution case that about 3 years and 9 months before on Sunday at about 3 P.M. they were in front of their door, and their mother was cutting grass in the field. At that time the accused Appellant Ajmul Ansari came in front of their house and tied a calf for grazing maize crops, on which their mother stated that she gets the cultivation conducted by her children and he is getting the crops grazed by a calf. At this acussed-Appellant started abusing their mother and chased her. She came running to the house and tried to close the door but the accused-Appellant came and assaulted her on the head, neck and other parts of the body with basuli as a result of which she died at the spot. P.W. 4 has stated that the villagers informed the Chaukidar, who informed the Kisko Police station. Thereafter, the police came and took his statement which was read over and explained to him and finding it correct he signed on the same. There is nothing of much importance in the cross-examination of these two witnesses by which their aforesaid statements can be disbelieved. In his cross-examination P.W. 4 has stated that he was playing with his brother near the place of occurrence and Safique Ansari was coming from the river after taking bath. He has also stated that accused Ajmul Ansari and Safique Ansari are having their houses near their house. Now P.W. 6 Safique Ansari has stated in his evidence that he does not know anything about the murder of Janki Devi. This P.W.6, therefore, denied any knowledge regarding the occurrence and so he was declared hostile by the prosecution. He has also denied to have given any statement before the Magistrate on 16.7.1990. However, he proved his signature on the aforesaid statement recorded by the police u/s 161 of the Code of Criminal Procedure, which has been marked as Ext.2. This suppression of fact by this witness with regard to the recording of his statement before the Magistrate, clearly shows that he is suppressing the truth. However, he stated that the statement was not read over and explained to him. He has also denied that he has been gained over by the accused Appellant and he has given the false statements. In his cross-examination he has stated that the police did not take his statement, Sub-sequently then he said that police took his signature on his statement. Now it is very surprising that, when he did not give any statement then how the question of giving any signature on the same will arise.

P.W. 7 is the I.O. Jadunandan Singh, he has stated that he took the statement of Safique Ansari. The details of statement recorded by him have also been mentioned. This will show that P.W. 6 is suppressing the truth from the Court and he is not making a correct statement.

P.W. 8, Arun Kumar Singh, he is the Judicial Magistrate, who recorded the statement of P.W. 6, Safique Ansari u/s 164 of the Code of Criminal Procedure. He has proved Ext.6, i.e. the aforesaid statement recorded by him. He has also stated that he read over and explained the statement of Sri Safique Ansari and after finding it correct he gave his signature on the same. There is nothing in the cross-examination of this witness by which the statement recorded by the Magistrate can be disbelieved.

On perusal of Ext.6 i.e. the statement of Safique Ansari recorded by the Magistrate u/s 164, Code of Criminal Procedure and the admitted signature of Safique Ansari Ext.2 on his statement shows that Sri Safique Ansari has corroborated the entire prosecution story before the Magistrate inasmuch as on 16.7.1990 i.e. just on the next day of the occurrence, wherein he has stated that his co-villager Ajmul Ansari, son of late Madan Ansari tied his cow in the Bari of Janki Devi as a result the animal grazed the standing maize crops so she (Janki Devi) protested. This witness further said that he had also protested as to why the maize crops of Janki Devi was being grazed on which accused Appellant started abusing both Janki Devi and also him and assaulted Janki Devi on her head and neck by a basuli as a result of which she fell down and died. The accused also chased him and had also given threat. P.W.6 in his evidence before the Court has stated that his statement was not read over to him. This statement does not appear to be convincing as there was nothing on record to infer that the learned Judicial Magistrate, who recorded the statement and stated on oath before the Court that the statement recorded by him was read over and explained to him to this witness, can be disbelieved.

Mr. K.K. Jhunjhunwala, learned A.P.P. appearing for the State has argued that from the evidence of P.W. 6 and his earlier statement recorded before the Magistrate (Ext.6), it clearly shows that he tried ,to suppress the truth from the Court, so this witness has turned hostile, may be, due to the fact that he is a neighbour of both i.e. the informant and the accused-Appellant and, thus, he did not want to involve himself in the matter. His evidence, therefore, can not take away the merit of the prosecution story and cannot in any way damage the prosecution case. I have given my anxious consideration on the aforesaid submissions and I find some force and substance in the aforesaid submissions of the learned A.P.P.

P.W. 7, i.e. the I.O. has also stated that on 15.7.90 he was posted in Kisko Thana, where he was informed by some villagers regarding the murder of a widow by Ajmul Ansari, he recorded the aforesaid fact as Station Diary Entry bearing No. 229 dated 15.7.1990 and went to the place of occurrence.

Mr. P.C. Tripathy, learned Counsel for the Appellant contended that the aforesaid statement shows that there was an earlier Station Diary Entry in the polic station, which has not been produced by the prosecution. Thus, the earlier version did not come forward before the Trial Court.

Learned A.P.P. has submitted that it is true that Station Diary Entry No. 299 dated 15.7.1990 was not produced before the Court but that has little bearing on the merit of the case as the fardbeyan was actually recorded at the place of occurrence. The informant, who is the eye witness, did not go to the police station and thus, the prosecution case does not suffer with any infirmity due to the non-production of the aforesaid Station Diary Entry.

P.W. 7 has proved Ext. 3, i.e. the fardbeyan recorded by him. He has also proved Ext. 4, i.e. the formal F.I.R. He has further stated that he has prepared an inquest report in presence of witnesses in carbon copy. Ext. 5 is the aforesaid carbon copy of the inquest report. He has also stated that he has got the statement of Safique Ansari recorded by a Magistrate, u/s 164 of the Code of Criminal Procedre and handed over the change of the case to Ram Pukar Singh on 19.8.1990, who submitted a charge-sheet.

P.W. 1 is Ramdeni Saw, who has stated that the police came for investigation in connection with murder of Janki Devi and prepared an inquest report on which he signed. He has proved Ext. 1, i.e. his signature on the carbon copy of the inquest report.

P.W. 3, Ram Khelawan Saw, has stated that about four years ago on Sunday at about 3 P.M. the occurrence happened. He came from Lohardaga at 12 O''clock on that date and was sitting in his house, he heard hulla. that Ajmul Ansari is chasing Janki Devi with basuli. When he went near the house of Janki Devi he found the dead body was lying there. He heard that Ajmul Ansari murdered Janki Devi. Thus, none of these witnesses i.e. P.W. 1 and P.W. 3 have seen the actual occurrence of murder to corroborate the fact of murder but they saw the dead body of the deceased. P.W. 1 is the witness for the inquest report. P.W. 3 is a hear-say witness.

P.W. 2 is Dr. Smt. Sackro Tuddu, who conducted the postmortem examination on the dead body of the deceased Janki Devi. She has stated that on 15.7.1990 she was posted at Lohardaga as Dy. Superintendent of the Hospital. On 16.7.90 at about 8.30 A.M. she conducted the postmortem examination on the aforesaid dead body and found the following injuries:

(i) Incised wound left ear to left claricle 8" x 4" x bone deep around the neck all muscles are cut, vein and artery also cut.

(ii) Incised wound 3"x 1"x 2" (brain deep) on the head. Brain is lacerated and cut in two pieces.

(iii) Incised wound 2"x 1" x 1/2" left upper arm.

(iv) Incised wound 2"x 1"x 1/2 " left lower arm.

(v) Incised wound 3"x 1"x 1/2 " on right forearm.

Injury No. (1), on exploration, of the wound the blood vessels were cut and cavical vertebra 3rd, fourth and mandible left side cut. On exploration of brain, the brain matter was found cut in pieces and brain matter contain full of blood clots. She has further stated that all the injuries were caused by sharp cutting weapon such as basuli. The injuries were antemortem in nature and the death was caused due to haemorrhage and shock due to injuries on brain and cutting of blood vessels. She has proved the postmortem report, which has been marked as Ext. 1 (it appears that serial No. Ext.1 has been mentioned twice as the signature of P.W. 1 on the inquest report has also been marked as Ext. 1). Thus, the evidence of P.W. 2 fully corroborates the fact that Janki Devi died due to certain injuries on 15.7.1990 caused by sharp cutting weapon like basuli and, thus, the evidence of this Doctor, P.W. 2 fully corroborates the prosecution story and allegation against the accused Appellant. In her cross-examination, P.W. 2 i.e. the Doctor, has stated that injuries Nos. 1 and 2 wee caused by two different weapons.

Mr. Tripathy, learned Counsel appearing for the accused Appellant has argued that the prosecution case is that the sole accused Appellant had only basuli in his hand, so there is no question of having any second weapon and a doubt arises as to how this second injury was caused, which is said to by caused by a different weapon. The learned Counsel, therefore, argued that a reasonable suspicion arises in the manner of occurrences and the accused Appellant deserves to be acquitted on the ground of benefit of doubt.

Mr. Jhunjhunwala learned A.P.P. submits that in her examination-in-chief, Doctor has clearly stated that all the injuries are caused due to sharp cutting weapon, such as, basuli. Thus, the subsequent statement of this witness in the cross-examination appears to have been made in haste on the pressure of the cross-examination. Admittedly the injuries were caused by sharp cutting weapon and basuli is a sharp cutting weapon. Learned A.P.P. further contends that the size i.e. length and width of the basuli has also not been stated and, thus, the statement of this witness in the cross-examination cannot take away the entire merits of the prosecution case. The evidence of this witness wholly supports the prosecution story of causing death by basuli.

Mr. Tripathy argued that in case Court finds that the accused-Appellant caused the injuries resulting into the death of Janki Devi (deceased), the said act of the accused-Appellant was committed in course of a sudden quarrel with regard to the tieing of the calf near the maize field of the deceased and, therefore, the Appellant can be said to have committed at best an offence u/s 304(1) of the Indian Penal Code and not u/s 302 of the Indian Penal Code. In this connection learned Counsel refers to a decision of the Supreme Court reported in Gurnam Singh and Anr. v. State of Punjab 1996 SCC (Cri) 96. The Supreme Court in the aforesaid decision has held that the incident took place in course of a sudden quarrel over opening of the outlet and therefore the offence falls u/s 304 (Part 1) I.P.C. and not u/s 302 IPC.

The relevant paragraph of the aforesaid judgment is as under:

Para 8: Now that it stands established that the two Appellants caused injuries 1, 2 and 3 on the person of the deceased with Kass and Gandasa and injury 1 was sufficient in the ordinary course of nature to cause death the only other question that requires to be decided is whether the offence committed by the Appellants, in furtherance of their common intention, falls u/s 302 or u/s 304 (Part I) IPC. The answer to this question is not far to seek for the evidence of P.W.4 clearly shows that the incident took place in course of a sudden quarrel over the opening of the outlet and therefore the Appellants can be said to have committed an offence u/s 304 (Part I) IPC and not u/s 302 IPC.

After going through the decision aforesaid, I find that the facts and circumstances of the aforesaid decision are different from the present one and, thus, the aforesaid law laid down by the Supreme Court cannot be made applicable to the present case.

In view of the facts, circumstances and evidence as discussed above, I find no reasonable ground for which the evidence of the child witnesses, namely. P.W. 4 and P.W. 5, who are the only eye witnesses in this case, can be disbelieved as the aforesaid evidence alongwith the evidence of other witnesses including the evidence of Doctor fully corroborated the prosecution case that the accused Appellant assaulted Janki Devi, mother of the informant, by a basuli on head, neck and other places causing her death. I, therefore, fully agree with the findings of the learned lower Court regarding the conviction and sentence of the accused Appellant.

In the result, the appeal fails and accordingly it is dismissed.