Jafar Ansari And Ors vs State Of Jharkhand

Shree Chandrashekhar, J

By an order dated 11.07.2019, the criminal appeal qua the appellant No.1, namely, Jafar Ansari and the appellant no.2, namely, Rabul Ansari has abated.

Fourteen persons were named accused in Senha P.S. Case No.27 of 1992, which was registered on the basis of the fardbeyan of Rustam Ansari recorded on 10.04.1992.

Amiruddin Ansari, the accused named in the First Information Report died after charges under section 307/149 I.P.C and under section 302/149 I.P.C were framed against the accused persons.

The learned Sessions Judge has acquitted ten accused persons except the appellants, namely, Jafar Ansari, Rabul Ansari and Rauf Ansari alias Rayuf Ansari of the charges framed against them in Sessions Trial No.731 of 1993.

The appellants have been convicted under section 302/149 I.P.C and sentenced to undergo R.I for life and fine of Rs.3,000/- inflicted upon each of them for the said offence.

By an order dated 28.01.2002, the appellants, namely, Jafar Ansari, Rabul Ansari and Rauf Ansari alias Rayuf Ansari have been granted bail by this Court.

During the trial, the prosecution has examined six witnesses; the informant is P.W.3 and his brother, namely, Mustakim Ansari is P.W.1. Both of them have been projected by the prosecution as eye-witness.

Both Rustam Ansari and Mustakim Ansari are brother of Hatim Ansari, the deceased.

In his fardbeyan, the informant has stated that on 10.04.1992 when they were returning home from Lohardaga on motor-cycle, it broke down and, therefore, for repair he stopped there. In the meantime, his brothers, namely, Mustakim Ansari and Hatim Ansari came there on another motor-cycle and asked him to wait at Ikaguri More where they would be waiting for him. When the informant arrived at Ikaguri More at about 6:00 p.m he saw a free-fight between his brothers and 14 persons. He intervened to rescue his brothers who were badly assaulted by the accused persons. The informant has stated that Hatim Ansari was assaulted to death and Mustakim Ansari sustained several injuries at the hands of the accused persons. He has claimed that the incident was witnessed by several persons. The reason why the accused persons have assaulted his brother is said to be old enmity between the parties. It is stated that Mohiuddin Ansari, brother-in-law of the informant has filed a case against the accused persons on the allegation of setting the wheat crop in the field on fire. In the court, the informant has narrated the incident which has happened on 10.04.1992 when he was returning from Lohardaga and reached at Ikaguri More. He has made general allegations against all the accused persons named by him in his fardbeyan, however, he has failed to specifically name the accused who has assaulted his brother Hatim Ansari. P.W.1 has also made allegation of assault by fourteen persons, who according to him were variously armed, to his brother and on him. The learned trial Judge has noticed that the informant has failed to name Jabbar as an accused in his statement given to the police. He has also not disclosed the manner of occurrence to the doctor who has examined the injured. His brother, namely, Mustakim Ansari-P.W.1 has claimed that he is an injured witness. However, the doctor who has examined him has not been produced during the trial. No test identification parade was conducted, though the occurrence has taken place in a market place and it was witnessed by several bye-standers. It has come on record that a complaint case was filed against the accused-party by Hatim Ansari and a counter-case for the same occurrence was instituted by the accused persons in which Mustakim Ansari was made an accused.

The learned Sessions Judge has extended benefit of doubt to ten accused persons on the ground that both P.W.1 and P.W.3 have failed to name them specifically. The learned trial Judge has found that P.W.1 has named Jafar Ansari, Rabul Ansari and Rauf Ansari and P.W.3 has named Jafar Ansari, Rabul Ansari, Iyub and Rayub, who according to him have assaulted Hatim Ansari and Mustakim Ansari.

Mr. Hemant Kumar Shikarwar, the learned counsel for the appellants, now the surviving appellant, has contended that (i) acquittal of ten accused persons on the same set of evidence (ii) conviction of the appellants, three in number, with the aid of section 149 I.P.C (iii) non-examination of the Investigating Officer and the doctor who has clinically examined Mustakim Ansari, (iv) non-examination of the independent witnesses, and (v) examination of only the interested witnesses, would completely erode credibility of the prosecution case.

From a reading of the judgment under appeal, it is apparent that evidence of P.W.1 and P.W.3 was recorded by the predecessor of the learned Sessions Judge, Lohardaga who has delivered the judgment in Sessions Trial No.731 of 1993.

In law, a successor Judge can deliver the judgment on the basis of the evidences recorded by his predecessor, but the issue involved in this criminal appeal is whether the successor Judge can substitute the name of a person, who according to the witness is an accused, with another person, by saying that it was a mistake committed by his predecessor in recording the evidence.

The law on this issue is very clear. Chapter XXIII of the Code of Criminal Procedure deals with "Evidence in Inquiries and Trials".

Section 278 Cr.P.C is relevant for the present purpose. It reads as under:

"Procedure in regard to such evidence when completed.-

(1) As the evidence of each witness taken under section 275 or section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.

(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary.

(3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands."

In "Mir Mohd. Omar & Others vs. State of West Bengal" reported in (1989) 4 SCC 436, the Hon'ble Supreme Court has held as under:

"14. In the sessions trial the court has limited jurisdiction with regard to correction of the recorded evidence of any witness. Section 278 provides:

"278. Procedure in regard to such evidence when completed.-(1) As the evidence of such witness taken under Section 275 or Section 276 is completed it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.

(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the magistrate or presiding judge may, instead of correcting the evidence make a memorandum thereon of the objection made to it by the witness, and shall add such remarks as he thinks necessary."

The object of Section 278 is two fold: firstly to ensure that the evidence of the witness as recorded is accurate and secondly to give the witness concerned an opportunity to point out mistakes, if any. If the correction suggested by the witness is one which the Judge considers necessary he will make it at once as required by sub-section (1) but if the correction is such that the Judge does not consider necessary, sub-section (2) requires that a memorandum of the objection be made and the Judge add his remarks, if any, thereto. In the present case, the learned trial Judge corrected all the typographical errors which he considered necessary but refused to carry out the substantive part of his deposition. The section is not intended to permit a witness to resile from his statement in the name of correction. The learned trial Judge was justified in refusing to effect the change which he thought was intended to change the earlier version. He did not make a memorandum as the correction slip was unsigned and was not properly filed. Now, since the correction slip as well as the remarks of the learned trial Judge have become a part of the record, nothing more need be done as the provisions of Section 278 are substantially complied with.

The informant-Rustam Ansari has named one Rayub as one of the assailants, however, the learned Sessions Judge has held that it was a mistake committed by his predecessor and, in fact, Rayub is not an accused rather, Rauf Ansari, the surviving appellant, is the person who has been wrongly mentioned as Rayub in the deposition of P.W.3. If at all that was the stand of the prosecution, which of course was not, no application for correction in the deposition of Rustam Ansari was filed by the prosecution.

Once deposition of a witness is recorded in the court and it is certified by the witness and the Judge who has recorded the statement, without application for correction and an opportunity to the defence, the law does not permit any correction in the evidence and, that too, by the successor Judge. In fact, we find that this was not an issue before the learned Judge that deposition of P.W.3 was not correctly recorded. For the first time in the judgment, he has held that his predecessor has committed a mistake in recording the evidence of P.W.3. The procedure adopted by the learned Judge was in violation of the principles of natural justice. Above being the factual position, it must be held that P.W.3 has not named Rauf Ansari, the appellant, as an accused in his deposition.

In the above facts, we hold that correction in the deposition of P.W.3 by the learned Sessions Judge, who has not even recorded the deposition of P.W.3, was illegal.

Now coming to the complicity of the appellant, namely, Rauf Ansari, we find that the learned Judge has extended benefit of doubt to ten accused persons on the ground that they were not named by P.W.1 and P.W.3, both. On the same analogy, we are inclined to extend the benefit of doubt to the appellant-Rauf Ansari. He has been named as a member of the assembly by P.W.1 only.

Accordingly, the judgment of conviction dated 26.09.2001 and the order of sentence dated 04.10.2001 passed by the learned Sessions Judge, Lohardaga, in Sessions Trial No.731 of 1993 qua the surviving appellant no.3, namely, Rauf Ansari alias Rayuf Ansari are set-aside.

The appellant no.3, namely, Rauf Ansari alias Rayuf Ansari is on bail. He is discharged of liability of the bail-bonds furnished by him.

In the result, Criminal Appeal (D.B.) No. 460 of 2001 qua the appellant no.3, namely, Rauf Ansari alias Rayuf Ansari is allowed.

Let lower-court records be transmitted to the court concerned forthwith.