Jharkhand High Court
Samsad Alam @ Shamshad Ansari vs The State Of Jharkhand on 26 November, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 415 of 2017
(Against the Judgment of conviction dated 21.01.2017 and Order of
sentence dated 31.01.2017, passed by learned Additional Sessions
Judge 2nd, F.T.C. Bermo at Tenughat in Sessions Trial No.250 of 2013).
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Samsad Alam @ Shamshad Ansari, S/o Late Sheikh Azad,
R/o - Raja Bazar, P.O. Bokaro Thermal, PS-Bokaro Thermal,
District Bokaro. ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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For the Appellant : Mr. Mahesh Kumar Sinha, Advocate
For the Resp.-State : Mr. Bhola Nath Ojha, A.P.P.
: Mr. Rahul Kumar, Advocate
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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C.A.V. on 23.10.2024 Pronounced on 26/11/2024
Per Sujit Narayan Prasad, J.
1. The instant appeal has been preferred under Section 374(2) read with 389(1) of the Code of Criminal Procedure against the Judgment of conviction dated 21.01.2017 and Order of sentence dated 31.01.2017, passed by learned Additional Sessions Judge 2nd, F.T.C. Bermo at Tenughat in Sessions Trial No.250 of 2013, whereby, the appellant has been found guilty and convicted for the offence under Section 302/201 read with Section 34 of the Indian Penal Code and upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life for the offence under Section 302 read with Section 34 of the Indian Penal Code and R.I. for five years under Section 201 read with Section 34 of the Indian Penal Code. Further, the appellant has been -1- directed to pay Rs.4,00,000/- as compensation in favour of wives of both the deceased.
Factual Matrix
2. The prosecution case was instituted on the basis of written report submitted by Abdul Manan son of Abdul Kayum resident of Saramdalal Tola within Gomia P.S., district Bokaro wherein it has been stated that Md. Hadish son of Abdul Kayum of village Saramdalal tola along with one Matlubb Ansari son of Mahboob Ansari of village Jhirki were doing coal trade business. They were coal D. O. holders and doing their common business. Shamshad Ansari son of late Shekh Azad resident of village Rajabazar, on commission- based payment was associated as Munshi (money collecting agent) with Md Hadish and Matlub Ansari in their coal business. Shamshad Ansari after selling out coal, was to give the money to his employers duo namely Md. Hadish and Matlub Ansari.
3. It has been stated that, in due course of time, Shamshad Ansari collected a big amount of money and was disinterested in getting the collected money back to them. As a result of which the relationship between Shamshad Ansari and his employers became strained. Further, the coal D. O. holders Md. Hadish and Matlub Ansari, demanded their money due on Shamshad Ansari who made false excuses and was evasive.
4. On 3rd February 2013 at about morning Shamshad -2- Ansari on false pretext and assurance that he would give them money back, telephonically called Md. Hadish and Matlub Ansari at his house under Razabazar locality within Bokaro Thermal Police Station. Both, believing the assurance made by Shamshad Ansari reached to the house of Shamshad Ansari under Razabazar locality by Santro Car bearing its number JH 02 M-1617, owned by one of them namely Md. Hadish.
5. Since both Md. Hadish and his business partner Matlub Ansari did not return at their respective houses back and their mobile phones also were switched off, the members of their house suspected about some foul play. Hectic search was made and during course of that one Sarfraj Newaz Ansari (PW-5) who happens to be brother of one of missing fellow Matlub Ansari, on the same day contacted to the house of accused Shamshad Ansari at village Razabazar and asked him about the whereabouts of Md. Hadish and Matlub Ansari. On this, Shamshad Ansari informed Sarfraz Newaj that though they had contacted and visited to him but returned back by their Santro Car.
6. When Md. Hadish and Matlub Ansari did not come back to their respective house, PW-7 Abdul Mannan along with PW-6 Mahboob Ansari contacted to the police and lodged the F.I.R. being Bokaro Thermal P. S. Case No. 08 of 2013 dated
04. 02. 2013 alleging therein that the accused/appellant along with his associates had murdered Md. Hadish and -3- Matlub Ansari and concealed their dead bodies.
7. Accordingly, FIR was instituted for the offence under Section 302 & 201 of I.P.C. read with Section 34 of IPC in which subsequently Section 27 of Arms Act has been inserted on 05.02.2013 against accused Shamshad Ansari, his family members and their unnamed associates.
8. After investigation, police had submitted charge-sheet bearing number 28 of 2013 against the accused/appellant under relevant section of Indian Penal Code and the other accused persons had been charge-sheeted vide charge-sheet No. 65 dated 25.08.2013. Subsequently, the cognizance of the alleged offence was taken and the case was committed to the Court of Sessions.
9. On 28.09.2013, the charge was framed against the accused persons and on 30.01.2014 the charges were framed against accused persons to which they pleaded not guilty and claimed to be tried.
10. In order to prove its case, the prosecution has examined 11 witnesses, namely, PW-1 Abdul Tasir, PW-2 Md. Munawar, PW-3 Makbul Hussain, PW-4 Md. Kalim, PW-5 Sarfaraj Nawaz Ansari, PW-6 Mahboob Ansari, PW-7 Abdul Manan, PW-8 Md. Mumtaz, PW-9 Dr. Binod Kumar Tiwari, PW-10 Ashok Ram and PW-11 Raj Kumar Yadav.
11. The prosecution has also proved the signature of PW-2 Md. Munawar on seizure-list made of blood stained soil as Ext. 1, Exhibit 1/1 is the signature of PW-3 upon the said -4- seizure-list; Exhibit 1/2 is seizure list pertaining to blood stained soil; Exhibit 1/3 is seizure list made of blood sample, collected after scratching out cot in the house of accused Shamshad Ansari; Exhibit 2 is signature of PW-5 upon seizure-list made of Muffler poured with blood spots; Exhibit 2/1 is seizure list pertaining to blood sample collected from Scorpio vehicle; Exhibit 3 also is signature of PW-5 upon seizure-list made of mobile phone recovered from the accused Shamshad Ansari; Exhibit 4 is the written-report; Exhibit 4/1 is the signature of PW-7 (informant) upon written-report; Exhibit- 4/2 is the endorsement upon written- report made by the first 1.0. examined as PW-10; Exhibit- 5 and Exhibit- 6 are Postmortem Examination Reports pertaining to deceased Md. Hadish Ansari and Matlub Ansari; Exhibit- 7 is the seizure-list made of Samsung mobile phone; Exhibit- 8 and Exhibit-9 are death inquest-reports pertaining to deceased persons Md. Hadish Ansari and Md. Matlub Ansari; Exhibit 10 is the confessional statement of co-accused Shamshad Ansari leading to recovery of dead bodies and other incriminating articles; Exhibit 11 is the seizure-list made of Santro Car and ATM card in the name of accused Md. Shamshad Ansaari; Exhibit 12 is the confessional statement made by co-accused Nizam Ansari and lastly Exhibit- 13 is F. S. L. report received from Forensic Science Laboratory.
12. Apart from that, one gray colored muffler is Material -5- Exhibit- I; Blood stained bed-sheet (rajai-cover) is Material Exhibit II while I.C.I.C.I. Bank's ATM card in the name of accused Shamshad Ansari is Material Exhibit- III and seized Samsung mobile phone with its dual SIM is Material Exhibit IV.
13. The statement of the accused was recorded under section 313 of the Criminal Procedure Code.
14. The accused Shamshad Ansari, in his defence has examined following four witnesses orally and they are DW-1 Md. Iftekhar Alam @ Babu, DW-2 Md. Imteyaz Ansari, DW-3 Md. Dilawas Ansari and DW-4 Subhan Ansari.
15. The trial Court, after evaluating the evidence of prosecution and defence witnesses found the charges levelled against the present appellant proved. Further the trial court has not found the sufficient evidences against other accused persons and had acquitted them from all charges framed against them.
16. Since, the present appellant has been found guilty under section 302 and 201 of Indian Penal Code read with Section 34, as such convicted and sentenced vide impugned judgment of conviction dated 21.01.2017 and Order of sentence dated 31.01.2017, which is the subject matter of instant appeal.
Argument on behalf of the learned counsel for appellant:
17. Mr. Mahesh Kumar Sinha, learned counsel for the appellant, has taken the following grounds in assailing the -6- impugned order of conviction: -
(i) There is nothing on record that both the deceased at any time on 03.02.2013 contacted to the house of Shamshad (appellant herein) and none of the witnesses came forward to say that the accused was seen together with the deceased duo or any of them.
(ii) There was no recovery of any incriminating on instance of Shamshad Ansari and the dead body of both the victims had been recovered from open space lying in field, therefore it cannot be presumed that recovery of incriminating articles or dead bodies was the product of disclosure statement made by the accused/appellant Shamshad.
(iii) The prosecution therefore, has failed to connect the accused Shamshad in murdering both the deceased;
and alleged Material Exhibits admittedly, as per evidence of its producing police officer who being subsequent Investigating Officer took oath as PW.11, were not prepared in accordance with the law.
(iv) Some of the witnesses in their testimonies exaggerated and advanced their version regarding confessional statement of the appellant, led to recovery of incriminating articles and therefore their evidence being contrary to previous statement, cannot be taken in to consideration against the accused/appellant.
(v) According to the case made out in the FIR, Charge Sheet -7- and the evidences as much as three more accused person was involved in the crime, however the Learned Trial Court has disbelieved the prosecution case and convicted only accused Shamshad Ansari for the commission of offense which according to the evidences makes it clear that Shamshad Ansari could not have committed murder of both the deceased single handedly.
(vi) The entire case is based upon the circumstantial evidence coupled with the theory of last seen but the chain is not being completed and hence, the judgment of conviction is not sustainable in the eyes of law.
18. Learned counsel for the appellant, on the basis of these grounds, has submitted that the instant appeal may be allowed by quashing and setting aside the judgment of conviction.
Argument on behalf of the learned counsel for the state:
19. Per contra, Mr. Bhola Nath Ojha, learned Public Prosecutor, appearing for the respondent State, has defended the impugned judgment of conviction on the following grounds: -
(i) If the entire evidence will be taken into consideration, the case is based upon the recovery admissible under section 27 of the Evidence Act and the same was fully substantiated by the testimonies of other witnesses.-8-
(ii) The dead bodies and other incriminating articles were recovered on the basis of the confessional statement of the appellant which has been fully substantiated by the testimonies of other witnesses.
(iii) The learned trial court, after taking into consideration the aforesaid fact, has considered the case with the angle that the case is based upon the cogent evidence i.e. testimony of the witnesses and, as such, it is immaterial and irrelevant, as has been argued on behalf of the learned counsel for the appellant that Shamshad Ansari could not have committed murder of both the deceased single handedly.
(iv) Accused/appellant Shamshad Ansari due to specific motive in order to grab huge money owned by both the deceased, intentionally invited them at his house and killed them and carried their dead body by Scorpio vehicle and threw it in remote area under Tati-Jharia locality.
20. Learned counsel for the State respondent, on the basis of the aforesaid grounds, has submitted that the impugned judgment suffers from no infirmity and needs no interference. Analysis
21. We have heard the learned counsel for the parties, considered the finding recorded by the learned trial court in -9- the impugned judgment, gone across the testimony of the prosecution witnesses as well as the other documents available in the lower court records.
22. This Court is required to answer the following issues: -
(i) Whether the judgment passed by the learned trial court convicting the appellant can be said to be justified?
(ii) Whether on the basis of the testimony of the witnesses can it be said to be a case based on circumstantial evidence or it is based upon the theory of last seen together or if the entire case is based upon the theory of last seen but the chain is being completed or not?
23. Both the issues since are interlinked, as such, are being considered together and being answered hereinafter. But before considering the aforesaid issues, the testimony of the witnesses are required to be referred herein which reads hereunder as: -
P.W.1 Abdul Tasir is witness of seizure memo made of Samsung mobile phone and also have witnessed the memo of arrest in regards to accused/appellant Shamshad Ansari.
According to his testimony, accused Shamshad Ansari in his presence had confessed to the Police that he with help of his associate accused persons had caused murder of both the deceased persons and after murdering them, by means of Scorpio vehicle carried their dead body under Tati-Jharia
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locality.
This witness had stated that he had visited to the place of occurrence at Tati-Jharia and found the dead bodies of deceased lying in a field and identified the deceased persons as Md Hadish and Matlub Ansari. He is the witness of inquest-reports pertaining to deceased persons and he had stated that besides him one Sarfaraj Ansari also put his signature as witness upon said inquest-reports. He has further stated that on instance of arrested accused Shamshad Ansari, the Scorpio vehicle was recovered from a village within Lalpania locality and the seat and dickey of the said vehicle was spotted with blood clots and gray colour muffler of one of the deceased namely Matlub Ansari with blood stain and included with bed-sheet(razai-cover) sustained with blood clots were found lying in the said Scorpio and the seizure memo thereof, has been prepared by the police.
He had further stated that he along with the police personnel and others also went to house of Shamshad Ansari and from there, the police collected blood sample from a cot.
He recognized accused Shamshad Ansari standing in the dock.
During cross-examination on behalf of accused Shamshad Ansari, he admitted in his testimony that deceased Matlub Ansari was his cousin brother and another deceased Md. Hadish was his friend.
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P.W. 2 Md. Manowar is a witness of seizure memo made of blood-stained soil collected from the place of occurrence wherefrom, dead bodies were recovered and according to him the police in his presence had prepared the death seizure-
memo on 04.02.2013. His signature upon seizure memo has been marked as Exhibit-1. He recognized accused Shamshad Ansari.
During cross-examination he had stated that it was Tasir Ansari (PW1) who telephonically informed him that Shamshad Ansari and others had murdered deceased persons, and after receiving the said information, he had gone to Tati-Jharia to see the dead bodies. He denied the false implication of the accused.
P.W.3 Makbul Ansari also is hearsay to the occurrence and according to him, he along with others had gone to Tati-
Jharia locality and saw the dead bodies of both the deceased.
He is a witness of seizure memo made of blood-stained soil collected from the place where the dead bodies were found lying. He proved his signature as Exhibit-1/1 upon seizure memo made to this effect. He has deposed that, one Md.
Manowar also had witnessed the said seizure memo.
During cross-examination on behalf of accused Shamshad Ansari it is apparent that he stood well and deposed nothing otherwise against his testimony recorded during examination-in-chief.
P.W.4 Md. Kalim is a witness to the memo of arrest made of
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accused Shamshad Ansari. He had testified that on 04.02.2013 he along with Mannan Ansari who was brother of deceased Md. Hadish, reached Bokaro Thermal Police Station and at about 7.00 a.m. morning. The Officer-in-Charge Bokaro Thermal P. S. on that day itself, had arrested the accused Shamshad Ansari behind Railway Station. He had stated that the accused Shamshad Ansari in his presence, had confessed the guilt that he had murdered both Matlub and Md. Hadish and after murdering them, their dead bodies was dumped in field under Tati-Jharia locality. He had further stated that the inquest-reports were prepared in his presence.
In cross examination he had stated that from Bokaro Thermal police station, he and others along with arrested accused Shamshad Ansari, reached at the place of occurrence from where the dead bodies were recovered. He had testified that, Mannan Ansari at about 7.00 a.m. on 04.02.2013 submitted written-report to the Police and the police took action and searched Shamshad Ansari and arrested him and, the dead bodies were recovered in his presence. Further, he denied false implication of accused Shamshad Ansari as also denied to the fact that the accused Shamshad Ansari, had not confessed the guilt and no recovery was made on shown by the accused. P.W.5 Sarfaraj Nawaj Ansari had testified that when both deceased did not come back even up to evening then he at
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about 7.30 pm on 03.02.2013 had contacted to the house of accused Shamshad Ansari under Raja Bazar locality within (Bokaro Thermal Police Station (B.T.P.S.). He had stated that when he met accused Shamshad Ansari at his house under village Razabazar, said Shamshad Ansari, on asked by him about Matlub and Md. Hadish, had admitted that both at about 6.30 am morning, had contacted/arrived at his house and he gave them money due for and after taking the money, both returned back.
He had further testified that he came back from the house of accused Shamshad and thereafter telephonically called Mannan Ansari (brother of Hadish) and when Manan Ansari reached, then he along with Mannan Ansari started searching Matlub and Md. Hadish, but mobile phone of Matlub was found switched off.
He had further deposed that on next morning at 5. 30 am he along with Mannan Ansari contacted Bokaro Thermal P.S. where Mannan (P.W.7) submitted F.I.R. and after that the police came in action and in his presence had arrested accused Shamshad Ansari from Railway station-more and from his possession the police recovered a Samsung dual SIM mobile phone and prepared its seizure memo on to which he included with one Tasir (P.W.1) put their signatures.
He had testified that accused Shamshad Ansari confessed his guilt to the police that on 03.02.13 at about 6.30 am Md. Hadish and Md. Matlub when contacted his
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house (Shamshad's) he along with his associate, by means of dagger and fire arm, caused death both of them.
He had further testified that Shamshad Ansari also confessed to the Police that he carried both of the dead bodies through Scorpio vehicle bearing No. JR30J-7161 and dumped it under Bhandaria locality within Tati- Jharia P.S. and during returning back, their Scorpio vehicle near Khakhanda village became out of order, therefore, leaving the vehicle there, he had gone away. Shamshad Ansari also confessed that he would show the Scorpio vehicle from Khakhanda village. He had further stated that the police along with arrested accused Shamshad Ansari reached Bhandaria locality within Tati-Jharia P.S. and on instance of said accused, dead bodies of Matlub Ansari and Hadish Ansari lying in an abandoned land was recovered.
He had further stated that the said Scorpio vehicle parked near a road was recovered in which seat was sustained with blood stain marks and inside the said vehicle a Rajai-cover and a muffler owned by deceased Matlub Ansari both sustained with blood marks were found. He had stated that the police prepared seizure memo to this effect which has been witnessed by him and further by one (PW1) Md. Tasir. He accordingly proved his signature upon seizure-memo as Exhibit- 2. He further testified that the Police thereafter carried the accused Shamshad Ansari to his house back and collected blood sample lying upon a cot
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and prepared its seizure-memo, on which he also put his signature as Exhibit- 3. The police had recorded his statement. He had recognized the accused Shamshad Ansari standing in dock.
During cross-examination on behalf of accused Shamshad Ansari he answered that on 04.02.2013 at about 3.00 pm evening he along with the Police team reached Khakhda village where from Scorpio vehicle was recovered and from there via Bishnugarh he reached B.T.P.S. back. According to him on 04.02.2013, a Santro vehicle by means of which both the deceased went to meet accused Shamshad Ansari, was recovered from Bank ATM area at Hazaribagh. He had stated that Santro Car was recovered by Hazaribagh police and this fact he came to know on after conversation by one Md. Kalim.
He has stated further that after coming back from Khakhanda village he along with the police team at 4.30 pm reached at the house of accused Shamshad Ansari. Nobody was present in the house and the door was bolted from outside by the Police. He had further stated that on 04.02.2013 since morning at about 5.30 am to 6.00 pm he was remained present with the police and at about 6.00 pm, the statement of one Tasir was recorded by the police and after recording statement of the said witness, he left for his house and in the meantime Mannan (P.W.7) was also present there.
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According to his statement, both the deceased and accused Shamshad Ansari since about one year ago had been engaged in coal business. He denied the false implication of accused Shamshad Ansari.
P.W.6 Mahboob Ansari who is father of one of the deceased Matlub Ansari in his testimony has stated that both the deceased being coal lifters were doing coal trade and Shamshad Ansari (appellant herein) had been assisting the deceased persons in selling coal on their behalf and collecting money for the same and Shamshad Ansari for the same was being paid certain commission by his coal lifters namely Matlub and Md Hadish (both deceased).
He had stated that accused Shamshad Ansari by selling of coal owned by both deceased, in due course of time had collected huge amount of money and the said big money was due on accused Shamshad. According to him, both coal lifters namely Md. Matlub and Md. Hadish had been demanding their money back from Shamshad Ansari but Shamshad Ansari did not give money back and due to therefore relationship between the accused and both the deceased got strained. According to him, all these facts were informed to him by his victim son Matlub Ansari. He had further testified that on 03.02.2013 at about morning Shamshad Ansari telephoned his son Matlub Ansari and invited him at the house for purpose of giving the money due on him and on this assurance his son Matlub Ansari
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along with his business associate Md. Hadish by means of Sentro Car bearing No. JH 02 M-1617 owned by Md. Hadish went to the house of Shamshad at village Raja Bazar within Bokaro Thermal P.S. He has further stated that his son before leaving the house, had told him that he was called by Shamshad Ansari for purpose of returning back the money and on that very day, both Md. Matlub and Md. Hadish when did not come back, he called over mobile phone No. 8252928588 to his son Matlub Ansari but mobile phone was switched off.
He has stated further that when both Matlub and Md. Hadish did not return their house back, another younger son Sarfaraj Ansari(P.W.5) went Raja Bazar at the house of Shamshad and met with Shamshad Ansari and was told by Shamshad Ansari that both Matlub and Md Hadish though had come at his house and after collecting money, both returned back.
He further testified that he suspected upon Shamshad and therefore along with others contacted Bokaro Thermal P.S. and reported the entire facts to the Officer-in- Charge there. He has proved the written-report, as Exhibit- 4 and his signature included with signature of one Abdul Mannan upon it. According to his testimony, the police team had arrested the accused Shamshad Ansari from Central market area Bokaro Thermal Railway station, who seeing the Police was about to flee.
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He has stated in his deposition that Shamshad Ansari after being arrested by police, in his presence had confessed that he had murdered both the deceased persons namely Md. Matlub and Md. Hadish and after committing their murder, threw dead bodies in field under Bhandaria locality within Tati-Jharia P. S. The Police thereafter carried Shamshad Ansari to Tati-Jharia Bhandaria locality and on instance of Shamshad Ansari, dead bodies of Matlub Ansari and Md. Hadish were recovered. He identified the dead bodies as that of his son Matlub Ansari and of Md. Hadish. He has further testified that on instance of said accused Scorpio vehicle included with blood-stained muffler of his deceased son Matlub Ansari was recovered and Police had also recovered Razai-cover inside the vehicle, smeared with blood.
However, during cross-examination when his attention was drawn towards his previous statement given to the police, he denied to having narrated to the police that Police arrested the accused Shamshad Ansari from Bokaro Thermal Railway station; and accused confessed his guilt of killing both the deceased. This witness on his own further stated that accused in fact has confessed his guilt in his presence and dead bodies were recovered and therefore there was no need of narrating this fact to the police that at instance of Shamshad, Police recovered dead body of both the deceased. In his cross-examination at para 21 he has stated that Santro car, after this occurrence subsequently was recovered
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from Hazaribagh. He has testified that from Bokaro Thermal P.S. together with him Khurshid Alam, Ravindra baitha, Sushil Kumar Yadav also had gone to the place from where dead body of both deceased had been recovered and there he also met with Abdul Tasir, Md. Manowar and Makbul Hussain.
PW7 Abdul Mannan is the brother of one of the deceased Md Hadish and the informant of the case. He has deposed that he has submitted the written-report (Exhibit 4) to the police station and he proved his signature over it as Exhibit- 4/1. and the written-report was scribed by one Md. Samim remained with him. He further has supported the prosecution story as has been mentioned in the written- report (Exhibit
4). He had testified that at relevant day on 03. 02. 2013 at about morning, his brother Md. Hadish (since deceased) along with Matlub Ansari (another deceased) had gone to the house of accused Shamshad Ansari. He admitted both the deceased to be the business partners in coal trade and according to him accused Shamshad Ansari was their employee for collecting money sold by coal.
He had further deposed that both the deceased were Coal Lifters by profession and big amount of money was grabbed by Shamshad Ansari and the deceased on the relevant day at about morning on being telephonic invitation with assurance given by accused/appellant Shamshad that he would give their money due on him, left for his house at
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village Razabar and when they did not come back to their respective house, Sarfraj Newaz Ansari (PW5) son of Mahboob Ansari (PW6) during course of searching them, contacted to the house of accused Shamshad Ansan at Razabazar and was told by Shamshad Ansari that both namely Matlub Ansan and Md. Hadish had come to his house and they after collecting money due on him. had returned back from there.
He had further testified that on next morning, he along with others contacted Bokaro Thermal police station and reported the entire occurrence and submitted written-report to this effect. This witness, has further stated that the Police after recording his re-statement on that very day itself, in his presence and in presence of others, had arrested accused Shamshad Ansari from Rly station side, and Shamshad Ansari confessed his guilt that he along with his four associates had caused death to the deceased and carried away their dead body to Tati-Jharia locality and threw it in an open field adjacent to the road. The Police thereafter, contacted the house of accused and bolted door of the house from outside. The police carried Shamshad Ansari to Tati- Jharia; and he along with others by their respective vehicle also followed the police and the dead body of the deceased duo, had been recovered from an open field adjacent to the road. This witness recognized the accused Shamshad standing in the dock.
During cross- examination on behalf of accused
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Shamshad Ansari, he answered that the place where from Scorpio vehicle was recovered, had also been attended by him. Lastly, he denied the false implication of the accused Shamshad Ansari and further denied that due to previous enmity, the accused Shamshad Ansari has falsely been roped in the instant case.
P.W. 8 Md. Mumtaz came to know about the occurrence from P.W.7 Abdul Mannan. He is witness of inquest-reports pertaining to dead body of both deceased Matlub Ansari and Md. Hadish. He had witnessed the inquest-reports P.W. 9 Dr. Binod Kumar Tiwari, is a medical officer and on
04. 02. 2013 he had conducted autopsy on the dead body of Md. Hadish and Matlub Ansari. He had stated that he after conducting postmortem examination on the dead body of Md. Hadish, 37 years, found the followings;
Body was of heavy built. Rigor-mortis present in the whole body. Blood clots and serosanguineous discharged at the nostril.
Wound details-
1. A pea size circular wound with contused margin on the left side of forehead 1/4'' deep.
2. Incised stabbed wounds over the right side of back with details as under;
i. 2"x 1" x 2"
ii. 1 ½'' x 1'' x 2'' iii. 1 ½'' x 1'' x 2''
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iv. 1 ½'' x 1'' x 2'' v. 1 ½'' x 1'' x 2'' All wounds are ante-mortem in nature and likely to be produced by sharp cutting object, except pea size wound which is produced by hard blunt object.
On internal examination, the doctor found the posterior borders of the 4th, 5th, 6th and 7th ribs sharply cut but incompletely. Plura incised at five sides with hemothorax.
Blood clots found in the passage of trachea and larynx.
Incised wounds of five sides were found on posterior surface of right lungs. Haemocardium present. Chamber of the heart-
empty.
Cause of the death: Hemorrhagic shock due to above mentioned injuries.
He has proved postmortem examination report pertaining to Md. Hadish as Exhibit-5.
On examination to the dead body of Matlub Ansari, 32 years of age, found the followings;
External examination:
The deceased was of average body built. Rigor mortis present all over the body. Blood clots- from nostril. Eyes and mouth- closed. Incised stabbed wound with blackening on around over the left side of neck below the ear margin inverted. Gun shot exit wound over the right side of scalp just behind the right ear. Abrasion over the neck on the front and sides. All wounds are antemortem in nature and likely to be
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produced by incised with sharp cutting object, abrasion by hard blunt object and gun shot by fire arm. Internal examination: Brain and meninges found lacerated. Tissues in the track of stabbed wound were found to be incised with hemopericardium- end.
Cause of the death:
Hemorrhagic shock due to above mentioned injuries. Time elapsed since death to PM examination- within 24 to 36 hrs. The doctor accordingly has proved postmortem examination report, pertaining to Matlub Ansari, as Ext. -6.
During cross examination, on behalf of all the accused persons, he answered that no pellet, cartridge was found during autopsy. Entry wound, as he explained, means blackening and single ring with abrasion caller. P.W.10 Ashok Ram, the then officer-in-charge, B.T.P.S. is the first I.O. who conducted most of the investigation including registering of F.I.R., on the basis of written-report submitted by P.W.7; arresting of the accused Shamshad Ansari with memo of arrest (Exhibit7) and further recording of confessional statement made by accused Shamshad Ansari leading to recovery of the dead bodies as also further recovery of Scorpio vehicle allegedly used in carrying the dead bodies with certain incriminating articles inside the said vehicle.
He has proved the endorsement made by him in capacity of the officer-in-charge, as Exhibit- 4/2 upon written-report.
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He had deposed that after registering F.I.R. he himself investigated the case and during course of the investigation had arrested accused Shamshad Ansari from station-more and on search recovered a Samsung mobile phone from conscious possession of accused Shamshad, accordingly, prepared its seizure-memo in presence of witnesses. He had further testified that accused Shamshad Ansari after arrest, had confessed the guilt that he along with his associate accused persons caused death of both of the victim namely Matlub Ansari and Md. Hadish. He has further deposed that after arresting the said accused, he carried the accused to the house of the said accused and inspected his house. As per his testimony the 1st place of occurrence, is brick- kiln and Asbestos sheet made house of accused Shamshad Ansari situated in village Rajabazar within B.T.P.S. and he from the said house of accused, found blood clots upon a wood made cot to one of its room.
He had further stated that the arrested accused Shamshad Ansari confessed the guilt that in that room itself both the deceased were done to death. He has described boundary to the place of occurrence. He has further stated that blood stained floor of the said house, as he noticed during inspection, was neatly brushed and cleaned. His further evidence is that at instance of accused Shamshad Ansari, he with due support of the Officer-in-Charge at Tati- Jharia P.S., reached at Bhadaria-Gosai locality and there
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after dead body of both deceased Matlub Ansari and Md. Hadish, had been recovered from a field. According to him, the dead body of both deceased were identified by in-mates of their house remained with him.
He prepared inquest-reports pertaining to the dead bodies of Md. Hadish and Matlub Ansari and has proved its as Exhibit- 8 and Exhibit- 9.
The 2nd place of occurrence, according to him, from where both dead bodies and blood-stained soil with seizure- memo, had been recovered. He has proved seizure-memo made of blood stained soil as Exhibit- 1/2. He recorded statement of inquest- reports witnesses Md. Mumtaz (PW-8) and Md. Kalim (PW.4) and further recorded statement of seizure-list witnesses Md. Manowar (PW-2) and Makbul Hussain (PW-3).
He has stated further that after recovery of the dead bodies he had carried the arrested accused Shamshad Ansari to village Khakhada and at the instance of the said accused, from village Khakhada near semi-constructed house of one Naresh Mahto, had recovered Scorpio vehicle and seized a rajai-cover from inside the vehicle, sustained with blood. He also recovered a black colour muffler sustained with blood and further from rear seat of the Scorpio collected blood sample and prepared its seizure-memo. He accordingly proved seizure-memo to this effect as Exhibit-2/1. Thereafter he together with arrested accused/appellant
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reached back to the house of arrested Shamshad Ansari and from the said house, scratched blood spots from its bed and made a seizure- memo Exhibit-3/1.
He has proved confessional statement of accused/appellant as, Exhibit-10 (objected to) and according to him, he further had recorded statement of seizure-memo witnesses Abdul Tasir (PW-1) and Md. Sarfaraj (PW-5) and after that also recorded statement of Md. Taiyab Ansari and Md. Kayum (PW 4). According to him, on the basis of confessional statement made by accused Shamshad Ansari a Santro car bearing registration No. JH 02 M-1617 by the then Officer-in- Charge, Gandhi Nagar Sri Anand Tirki (since dead) was recovered from Hazaribagh. He has stated further that Santro Car bearing its No. JH 02 M-1617 with ATM card relating to ICICI Bank in the name of accused Shamshad, had been recovered and its seizure memo was prepared by the then Officer-in-Charge of Sadar P.S. Hazaribagh, Sri Dinesh Singh. He has proved the seizure-memo made to this effect, as Exhibit-11. He had stated that he also recorded statement of said Anand Tirki (since dead). He had further testified that on 07.02.2013 he forwarded mobile SIM bearing Nos. 99470311037 and 3752014843 for its C.D.R. to the Special Cell and during investigation also he took the accused Shamshad Ansari on police remand and during course of remand, the accused Shamshad had disclosed names of his associate co-accused as Manish,
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Santosh and Arvind. This I.0. thereafter on 23.02.2013 has been transferred hence he handed over remaining investigation to Sri Raj Kumar Yadav who replaced him as the Officer-in-Charge of B.T.P.S. He recognized the accused Shamshad Ansari standing in dock.
During cross examination, on behalf of accused Shamshad Ansari, he answered that first of all at around 7.15 hours he reached to the house of accused, inspected it and sealed the said house and subsequently on the same day at around 16.30 hours again visited there. According to him on 04. 02. 2013 at around 5.30 hours, he left the police station and returned back only at around 18-20 hours.
During course of investigation, he had not collected detailed information about ATM card recovered and seized. He had deposed that he reached Tati Jharia at 10.40 hrs. and dead bodies of the deceased, by a constable No. 1141 namely Shankar Kumar was sent for its postmortem examination.
According to him, during course of investigation, any of the seized articles were also not sent by him for its forensic science examination. When his attention at para-43 of his cross-examination was drawn towards earlier statement of PW4 Md. Kalim, he denied for having recorded his statement to the effect fact that said witness also together with the police team visited to the place of occurrence. P.W. 11 Raj Kumar Yadav is subsequent I.O. who concluded the investigation leading to charge sheet against alleged key
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accused Shamshad Ansari and subsequently against others. He had testified that on 03.03.2013 he in the capacity of Officer-in-Charge, Bokaro Thermal P.S. has been posted there and did conduct remaining investigation handed over to him by the then I.O. Mr Ashok Ram. He had deposed that during investigation he sent A.S.I. Chandradeo Singh to Kolkata for ascertaining the role and assuring arrest of co-accused Kheru Nisha (mother of accused Shamshad) and Md. Naushad Alam@ Butali (brother of said accused).
He has further stated that he also sent Sub-Inspector of police Sri Maki Ahmad to Munger for conducting raid and verifying co-accused persons Santosh and Arvind and after coming back from Munger, recorded statement of the said officer. He had issued requisites to the concerned court and requested in favour of warrants against accused persons Kharun Nisha and her son Naushad Alam @Mutali. He had deposed that on secret information it was found that seized Scorpio was owned by one Hamid Khan resident of Bishnugarh, Hazaribagh and same was hired by one Sahjada Khan. He thereafter registered Sanha No. 392 of 2004 to this effect and for necessary proceeding left for Bishnugarh and met there to Hamid Khan and came to know that said Scorpio was in the joint name of Hamid Khan and Salim Ansari. His further evidence is that in order to meet Salim, he reached Hasamia colony Hazaribagh but Salim was not there. Driver of Scorpio namely Chutan Yadav met him in Hazaribagh and
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admitted him the driver of said vehicle and accused persons Hamid and Salim, its owner.
He had further deposed that the accused Salim Ansari in his confessional statement recorded during investigation had stated that on 02. 02. 2013 he with consent obtained by co- accused Hamid, sold Scorpio vehicle at Rs 6,00,000/ in favour of accused Shamshad Ansari and accused Nizam was its guarantor, as Shamshad paid only Rs 40,000/ and remaining Rs 5,60,000/ was yet to be paid by Shamshad. He had testified that accused Salim and accused Hamid in their respective confessional statement also had confessed that the said Scorpio was theft by them from State of Haryana. He has stated further that during investigation, he had tried his best in verifying genuineness of the documents relating to Scorpio vehicle and came to know only that its number bearing HR 30J-7168 of the said Scorpio, in fact was of a two wheeler vehicle namely Splender-Pro motorcycle which was owned by one Harichand son of Sukhi Ram resident of village Amarpur under Tahsil & district Palwal within the State of Haryana. He had testified that he thereafter registered a separate criminal case against Salim, Hamid, Shamshad and others as B.T.P.S. Case No. 28 of 2013 and recorded confessional statement to these effects made by accused persons Hamid Khan and Salim Khan that they sold out theft Scorpio in favour of accused Shamshad Ansari and said Scorpio vehicle which was used in
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committing murder of both the deceased.
During investigation, in the instant case, he forwarded Material Exhibits such as piece of bed-sheet cover smeared with blood, piece of blood marks which allegedly was scratched from cot to the house of accused Shamshad Ansari and piece of blood stained rear-seat cover with piece of its wooden part taken out from Scorpio, for its forensic examination in F.S.L. Ranchi. He accordingly submitted charge sheet bearing No. 28 of 2013 against accused Shamshad Ansari showing investigation continued remain against others.
This witness has proved Material Exhibits namely blood stained gray colour muffler smeared with blood spots; bed- sheet (rajai cover) spotted with blood; ATM card relating to ICICI Bank issued in the name of accused Md. Shamshad Ansari: a Samsung dual SIM mobile phone with particular IMEI numbers recovered from conscious possession of accused Shamshad Ansari and it has been marked as Material Exhibits I, II, III and IV respectively. On the day of his evidence, he produced those Material Exhibits which were contained in poly thin bag and asserted further that none of Material Exhibits had been sealed or stamped in fact, legally.
During cross-examination he deposed that he did not collect any documentary evidence showing Scorpio vehicle was sold to accused Shamshad Ansari .
During cross-examination on behalf of
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accused/appellant Shamshad Ansari he made his ignorance as to when and by what manner, Material Exhibits were collected by the then I.O. Lastly he denied false implication of accused Shamshad Ansari and further denied suggestive question put by defence that nothing incriminating either from the house of said accused or from the Scorpion vehicle had been recovered during investigation and that accused Shamshad Ansari has been framed in a concocted story.
Accused Shamshad Ansari, in his tern has examined altogether 04 witnesses and they are D.W. 1 Md. Iftekar Alam @ Babu; D.W. 2 Md. Imtiyaz Ansari; D.W. 3 Md. Dilbas Ansari and D.W. 4 Subhan Ansari and amongst them D.W. 1, 2 & 3 are residents of the same village as that of accused Shamshad Ansari whereas D.W. 4 is resident of village Nawada under Bishnugarh P.S., District Hazaribagh. D.W. 1 Md Iftekhar Alam @ Babu has been examined and stated that on next morning of the occurrence, when the Police had arrested accused Shamshad Ansari, he came to know about the occurrence that the dead body of both deceased had been found lying under Tati-Jharia locality.
During cross-examination on behalf of prosecution, he admitted him to be neighbor of accused Shamshad Ansari. He had deposed that the accused Shamshad Ansari had been arrested by the police only on 04.02.2013.
During cross-examination on behalf of prosecution he admitted that he is neighborer of accused Shamshad Ansari.
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He admits that the Police had arrested Samsad Ansari only on 04.02.2013. According to his further evidence, mother of Samshad Ansari, prior to the occurrence had been working as maid servant in his house but after the occurrence she was removed.
D.W.2 Md. Imtiyaz Ansari has also admitted the accused Shamshad, his neighbor. He knew deceased persons Matlub Ansari and Md. Hadish Ansari. He further has made his full acquaintance about the facts that on 04. 02. 2013 at about 4-5 am morning, the accused Shamshad Ansari from or near Railway station- more, had been arrested by the police and just after arresting of said accused, he also reached there on hulla and heard there that the dead body of both the deceased had been dumped near Tati-Jharia locality.
During cross-examination, by the prosecution this witness admitted D.W.1 his own brother. It also has come in his further evidence that mother of accused Shamshad Ansari working as maid servant prior to the occurrence in his house. According to his further version, the place from where the police had arrested accused Samsad Ansari, was only 500 meters away to his own house.
D.W.3 Md. Dilwas Ansari also has been examined and stated that accused Samsad Ansari on 04. 02. 2013 in the morning, had been arrested by the police.
In his cross-examination on behalf of prosecution, this witness has deposed that both the deceased being coal
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business men also used to come at the house of accused Shamshad Ansari.
D.W.4 Subhan Ansari has been examined and had stated that on 04.02.2013 he along with his associate by means of bike was on way to Hazaribagh and when they reached near Padaria Gosai locality, saw mob was there and came to know that dead body of both the deceased are found lying in a field. According to him, he also had seen accused Shamshad Ansari in custody and was carried by Bokaro Police and since he was known to Shamshad, had identified him.
24. On perusal of the testimonies of the witnesses examined on behalf of both sides, this Court found that this is the case of circumstantial evidence as there was no eye witness to the alleged crime.
25. As is evincible, the entire case rests on circumstantial evidence. Before we analyze and appreciate the circumstances that have weighed with the trial court, we think it apposite to refer to certain authorities pertaining to delineation of cases that hinge on circumstantial evidence.
26. There is no quarrel with the settled position of law that in the case of circumstantial evidence the chain is to be complete then only there will be conviction of the concerned accused person, as has been laid down by the Hon'ble Apex Court in the case of Hanumant son of Govind Nargundlar vs. State of Madhya Pradesh, AIR 1952 SC 343 wherein it has been held that "It is well to remember that in cases where
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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 every 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."
27. The same view has been taken by the Hon'ble Apex Court in Bakhshish Singh vs. State of Punjab, (1971) 3 SCC 182 wherein the Hon'ble Apex Court has observed that the principle in a case resting on circumstantial evidence is well settled that the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. These circumstances should be of a conclusive nature and tendency and they should be such as to exclude every 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
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must have been done by the accused.
28. The Hon'ble Apex Court while laying down such proposition in the said case has considered the factual aspect revolving around therein and while considering the fact has only found the incriminating evidence against the appellant was his pointing the place where the dead body of the deceased had been thrown which the Hon'ble Apex Court has not considered to be circumstantial evidence though undoubtedly it raises a strong suspicion against the appellant. the Hon'ble Apex Court while coming to such conclusion has observed that even if he was not a party to the murder, the appellant could have come to know the place where the dead body of the deceased had been thrown. Hence anyone who saw those parts could have inferred that the dead body must have been thrown into the river near about that place. In that pretext, the law has been laid down at paragraph-9 thereof, which reads as under:
"9. The law relating to circumstantial evidence has been stated by this Court in numerous decisions. It is needless to refer to them as the law on the point is well-settled. In a case resting on circumstantial evidence, the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. Again those circumstances should be of a conclusive nature and tendency and they should be such as to exclude every 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."
29. It is, thus, evident from the close analysis of the aforesaid judgments the following conditions must be fulfilled
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before a case fulfilled before a case against an accused can be said to be fully established:
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(iii) the circumstances should be of a conclusive nature and tendency,
(iv) they should exclude every possible hypothesis except the one to be proved, and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused
30. The Hon'ble Apex Court has reiterated the said principle again in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 holding all the above five principles to be the golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence. The Hon'ble Apex Court in the said case as under
paragraph-155, 156, 157, 158 and 159 has been pleased to hold that if these conditions are fulfilled only then a Court
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can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise.
Paragraphs-155, 156, 157, 158 and 159 of the said judgment read as under:
"155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry [1952 NZLR 111] thus:
"Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for."
156. Lord Goddard slightly modified the expression "morally certain" by "such circumstances as render the commission of the crime certain".
157. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry case [1952 NZLR 111] was approved by this Court in Anant Chintaman Lagu v. State of Bombay [AIR 1960 SC 500] Lagu case [AIR 1960 SC 500] as also the principles enunciated by this Court in Hanumant case [(1952) 2 SCC 71] have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases -- Tufail case [(1969) 3 SCC 198] , Ramgopal case [(1972) 4 SCC 625] , Chandrakant Nyalchand Seth v. State of Bombay [ Criminal Appeal No 120 of 1957,], Dharambir Singh v. State of Punjab [ Criminal Appeal No 98 of 1958,]. There are a number of other cases where although Hanumant case [(1952) 2 SCC] has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration [(1974) 3 SCC 668, 670] , Mohan Lal Pangasa v. State of U.P. [(1974) 4 SCC 607,] , Shankarlal Gyarasilal Dixit v. State of Maharashtra [(1981) 2 SCC 35, 39] and M.G. Agarwal v. State of Maharashtra [AIR 1963 SC 200 : (1963) 2 SCR 405,] -- a five-Judge Bench decision.
158. It may be necessary here to notice a very forceful argument submitted by the Additional
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Solicitor General relying on a decision of this Court in Deonandan Mishra v. State of Bihar [AIR 1955 SC 801] to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus:
"But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation.such absence of explanation or false explanation would itself be an additional link which completes the chain."
159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz. before a false explanation can be used as additional link, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation."
31. The foremost requirement in the case of circumstantial evidence is that the chain is to be completed. In Padala Veera Reddy v. State of A.P. [1989 Supp (2) SCC 706 the Hon'ble Apex Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:
"10. ... (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
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32. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259 it has been laid down by the Hon'ble Apex Court as that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime.Relevant paragraph of the aforesaid judgment is being quoted as under:
"4. ... the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof."
33. In Harishchandra Ladaku Thange v. State of Maharashtra [(2007) 11 SCC 436, while dealing with the validity of inferences to be drawn from circumstantial evidence, it has been emphasized by the Hon'ble Apex Court that where a case rests squarely 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 and further 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
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from those circumstances.
34. In Ram Singh v. Sonia (2007) 3 SCC 1, while referring to the settled proof pertaining to circumstantial evidence, the Hon'ble Apex Court reiterated the principles about the caution to be kept in mind by court. It has been stated therein as follows:
"39. ... 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."
35. In Ujjagar Singh v. State of Punjab (2007) 13 SCC 90, after referring to the aforesaid principles pertaining to the evaluation of circumstantial evidence, the Hon'ble Apex Court observed as under:
"14. ... It must nonetheless be emphasised that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted."
36. The judgment referred in Hanumant (supra) has been consistently followed by Hon'ble Apex Court in the judgment rendered in Tufail (Alias) Simmi Vs. State of Uttar Pradesh [(1969) 3 SCC 198]; Ram Gopal Vs. State of Maharashtra [(1972) 4 SCC 625] and also in Musheer Khan alias Badshah Khan & Anr. Vs. State of Madhya Pradesh [(2010) 2 SCC 748. The Hon‟ble Apex Court in Musheer Khan
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(Supra) while discussing the nature of circumstantial evidence and the burden of proof of prosecution has held as under paragraph nos. 39 to 46 as under:
39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances.
40. Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical formula" since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion.
Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches". The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence.
41. To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. (See Raghav Prapanna Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963) 1 Cri LJ 70] ) 42. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. (See State of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300 :
1992 SCC (Cri) 642 : 1992 Cri LJ 3693] , SCC p. 309, para 20.) 43. While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali v. King Emperor [21 CWN 1152 : 43 IC 241] (IC at para 14) that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail.
44. The next principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis except his guilt. 45. When a murder charge is to be proved solely on circumstantial evidence, as in this case,
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presumption of innocence of the accused must have a dominant role. In Nibaran Chandra Roy v. King Emperor [11 CWN 1085] it was held that the fact that an accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Evidence Act may have in civil or in less serious criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence.
46. The same principles have been followed by the Constitution Bench of this Court in Govinda Reddy v. State of Mysore [AIR 1960 SC 29 : 1960 Cri LJ 137] where the learned Judges quoted the principles laid down in Hanumant Govind Nargundkar v. State of M.P. [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] The ratio in Govind [(1952) 2 SCC 71 :
AIR 1952 SC 343 : 1953 Cri LJ 129] quoted in AIR para 5, p. 30 of the Report in Govinda Reddy [AIR 1960 SC 29 : 1960 Cri LJ 137] are: "5. ... „10. ... in cases where the evidence is of a circumstantial nature, the circumstances [which lead to the conclusion of guilt should be in the first instance] 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 every 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 [shown] that within all human probability the act must have been [committed] by the accused.‟ [ As observed in Hanumant Govind Nargundkar v. State of M.P., (1952) 2 SCC 71 : AIR 1952 SC 343 at pp. 345-46, para 10.] "
37. The Hon'ble Apex Court in the case of Laxman Prasad @ Laxman vs. The State of Madhya Pradesh in Criminal Appeal No. 821 of 2012 dated 14.06.2023 has held at paragraphs-3 & 4 as follows:
"3. We do not find such conclusion of the High Court to be strictly in accordance with law. In a case of circumstantial evidence, the chain has to be complete in all respects so as to indicate the guilt of the accused and also exclude any other theory of the crime. The law is well settled on the above point. Reference may be had to the following cases: (i) Sharad Birdhichand Sarda vs.
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State of Maharashtra,(1984) 4 SCC 116; (ii) Sailendra Rajdev Pasvan vs. State of Gujarat Etc., AIR 2020 SC 180
4. Thus, if the High Court found one of the links to be missing and not proved in view of the settled law on the point, the conviction ought to have been interfered with."
38. Thus, it is evident that for proving the charge on the basis of circumstantial evidence, it would be necessary that evidence so available must induce a reasonable man to come to a definite conclusion of proving of guilt; meaning thereby there must be a chain of evidence so far it is 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.
39. Keeping in view the aforesaid settled connotation of law, we shall presently proceed to scrutinize and evaluate the circumstances, whether the said circumstances coupled with the alleged "last seen theory" establish the guilt of the accused/appellant beyond reasonable doubt.
40. First, we shall advert to the reliability and credibility of the "last seen/company" theory as propounded by the prosecution. The testimonies of PWs 5, 6 and 7 are relevant to be seen for the purpose of arriving at the conclusion whether the circumstance of "last seen/company" has been established.
41. A theory of "accused last seen in the company of the deceased" is a strong circumstance against the accused while
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appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged.
42. From perusal of testimonies of the witnesses it is evident that the theory of last seen of the deceased persons in the company with accused/appellant Shamshad Ansari, has come into picture in the testimony of PW.5 who is the brother of one of the deceased namely Matlub Ansari. P.W.5 has specifically stated that when he went to the house of accused/appellant in the evening to enquire about the deceased whereabouts. The accused Shamshad at his house met with him and admitted arrival of both the deceased persons and told that they after taking the due money had left from the house.
43. From perusal of the entire cross examination of P.W.5, it is evident that the evidence of PW.5 given to this effect, was not cross examined on behalf of the appellant as such, the fact that the deceased persons had gone to the place of appellant has been admitted and well established. PW.6 is father of one of the deceased namely Matlub Ansari while PW7 is elder brother of another deceased Md. Hadish. Both PW6 and PW7 have stated that PW5, prior to lodging FIR contacted to the house of Shamshad and was informed there by the said accused that both the deceased on the relevant morning had reached there and they after taking money due
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upon Shamshad returned back. Thus, in such circumstances inference may be drawn that that the deceased persons were in company with the appellant on the fateful day.
44. Thus, keeping in view the aforesaid settled principles, when the evidence of these three witnesses [i.e. PWs 5, 6 and 7] is scrutinised, we find that PW 5, has categorically stated that when he went to the house of accused/appellant in the evening to enquire about the deceased whereabouts, the accused Shamshad at his house met with him and admitted arrival of both the deceased persons and told that they after taking the due money had left from the house. There is nothing on record to disbelieve the said testimony and as discussed above this witness has not been cross- examined by the prosecution on this point. Therefore, there can be no trace of doubt that the deceased was last in the company of the accused persons.
45. It is alleged by the prosecution that the recovery of the dead bodies of deceased and other incriminating articles were made on the basis of confessional statement of the accused/appellant, thus at this juncture this court would like to discuss the implication of section 27 of the Evidence Act .
46. There is no dispute about the position of law as mandated under Section 27 of the Evidence Act that the same is exception to Section 25 to 26, which prohibit the proof of a confession made before the police officer while a
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person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not", which relates distinctly to the fact thereby discovered to be proved. Thus, even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under Section 27, it is only that part distinctly relates to the discovery which is admissible.
47. Thus, the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. It is also settled that the Court must disregard the inadmissible part of the statement and take note only that part of his evidence, which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further settled proposition of law that discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to his existence.
48. Reference with respect to the aforesaid settled proposition may be made to the judgment of the Hon'ble Apex Court in the case of Earabhadrappa v. State of Karnataka, AIR 1983 SC 446. Paragraph-7 of the said judgment reads as under:
"7. There is no controversy that the statement made by
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the appellant Ex. P-35 is admissible under Section 27 of the Evidence Act. Under Section 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word "fact" means some concrete or material fact to which the information directly relates. As explained by Sir John Beaumont in Pulukuri Kotayya v. King-Emperor [(1947) 74 IA 65 :
AIR 1947 PC 67 : 230 IC 135] :
"... it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.""
49. Further, in Nisar Khan @ Guddu v. State of Uttaranchal, 2006 (9) SCC 386, the Hon'ble Apex Court at paras-6 to 8 has been pleased to observe which read as under:
"6. Regarding the second contention that the recovery of arms has not been proved by the prosecution has also no substance. It is evidence on record that the accused were arrested on 17-12-1999 and pursuant to a disclosure statement made by them, the arms were recovered from the bank of Gaula river where these had been hidden under the sand and covered by the stones. All the arms were recovered as pointed out by each accused hidden under the stones. The High Court fell in error in holding that the recovery has not been proved as these were recovered from a place which is frequented by the public. This finding of the High Court is contrary to the evidence on record. It is now well- settled principle of law that the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. In Dhananjoy Chatterjee v. State of W.B. [(1994) 2 SCC 220 : 1994 SCC (Cri) 358] it is held that the entire statement made by an accused person before the police is inadmissible in evidence being hit by Sections 25 and 26 but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act. It is also held that the Court must disregard the inadmissible part of the statement and take note only of that part of his statement which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further held that the discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to its existence.
7. In Golakonda Venkateswara Rao v. State of A.P. [(2003) 9 SCC 277 : 2003 SCC (Cri) 1904] this Court reiterated the view and held that the discovery statement of an accused leading to recovery of crime articles from concealed place, even though the discovery statement and the recovery memo did not bear the accused's
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signature, the fact of recovery from the well and dug out was from a place which was pointed out by the appellant and, therefore, such discovery was voluntary. That the recovery was in consequence to the information given was fortified and confirmed by the discovery of the apparel worn and skeletal remains of the deceased and, therefore, the information and statement cannot be held to be false. In the present case on the recovery memo the signatures of all the accused have been obtained. In Praveen Kumar v. State of Karnataka [(2003) 12 SCC 199 : 2004 SCC (Cri) Supp 357] the same view has been reiterated.
8. As already noted, in the instant case the discovery of the arms was pursuant to the disclosure statement made by the accused immediately after the arrest and the offending arms were recovered at the place pointed out by each of the accused which were concealed under the sand and covered by the stones. The High Court in this regard fell in grave error by disbelieving the recovery memo solely on the ground that the place is a common place which is frequented by the public. The High Court failed to take notice that the recovery has been made from underneath the sand covered by the stones pursuant to the disclosure statement pointed out by each of the accused."
50. In Anil v. Admn. of Daman & Diu [(2006) 13 SCC 36 :] the Hon'ble Supreme Court held as under:
"23. The information disclosed by the evidences leading to the discovery of a fact which is based on mental state of affair of the accused is, thus, admissible in evidence."
51. Further, the Hon'ble Apex Court in State of H.P. v. Jeet Singh [(1999) 4 SCC 370] opined that when an object is discovered from an isolated place pointed out by the accused, the same would be admissible in evidence.
52. The Hon'ble Apex Court in Selvi v. State of Karnataka [ (2010) 7 SCC 263] has held as under:
"133.----- However, Section 27 of the Evidence Act incorporates the "theory of confirmation by subsequent facts" i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those
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which "furnish a link in the chain of evidence"
needed for a successful prosecution. This provision reads as follows:
'27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.'
134. This provision permits the derivative use of custodial statements in the ordinary course of events. In Indian law, there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda [Miranda v. Arizona, 1966 SCC OnLine US SC 112 : 16 L Ed 2d 694 : 384 US 436 (1966)] warnings. However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3)."
53. In Madhu v. State of Kerala (2012) 2 SCC 399, the Hon'ble Apex Court while discussing the mandate of Section 27 of the Evidence Act held as under:
"49. As an exception, Section 27 of the Evidence Act provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Evidence Act is, that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 aforesaid, is limited "... as relates distinctly to the fact thereby discovered...". The rationale behind Section 27 of the Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 aforesaid has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Evidence Act."
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54. Thus, it is evident that Section 27 of the Indian Evidence Act, 1872 (in short "the Evidence Act") is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by the Hon'ble Apex Court in Delhi Admn. v. Bal Krishan [(1972) 4 SCC 659] and Mohd. Inayatullah v. State of Maharashtra [(1976) 1 SCC 828].
55. The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect.
56. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding
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sections, be admitted in evidence. Under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer.
57. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved.
58. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is
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discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non- inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information.
59. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the most-quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered".
60. It is evident from the record that confessional statement (Exhibit 11) leading to recovery of the dead bodies and other incriminating articles, on perusal would show that it was recorded at around 6.30 am in morning and it was placed before the Court of Addl. CJM Bermo at Tenughat and the court, looked in with the signature of the presiding officer dated 05. 02. 2013.
61. From available material on record, there is no doubts that arrest of the accused Shamshad Ansari was made at about morning on 04.02.2013 by the police, not only has
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been witnessed and proved by PW1, PW2, PW3, PW4, PW5, PW6 and PW7 but the witnesses examined orally on behalf of the accused Shamshad Ansari, also in their respective evidence when got examined as DW1, DW2 and further DW3 have supported this aspect of the prosecution story, that the police at about morning on 04. 02. 2013 had arrested the accused Shamshad.
62. Thereafter, on the basis of the confessions made by appellant and his disclosure statement, both the dead body which were thrown out in Tati-jharia locality has been recovered and Scorpio vehicle used in commission of crime coupled with rajai-cover and muffler, all blended with blood spots has also been recovered on disclosure statement made by that accused. The aforesaid facts have been supported by PW1, PW2, PW3, PW4, PW5. PW6 and PW7.
63. It needs to refer herein that in the instant case, role of PW10 (Investigating officer) is crucial and significant who being 1st I.O, had arrested the accused Shamshad Ansari. He has testified that the dead body of both deceased coupled with Scorpio vehicle, has been recovered only on being shown by the accused/appellant Shamshad Ansari. The aforesaid statement of P.W.10 cannot be doubted only because of the reason of his being police officer.
64. Legal principle is well settled that when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused
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under custody, it is open to the court to accept the version to be correct, if it is not otherwise shown to be unreliable. In this context, reference may be drawn from the judgment as rendered by the Hon'ble Apex Court in State, Govt. of NCT of Delhi v. Sunil and Another 2001 (1) SCC 652 in which it has been held that it is not legally approvable procedure to presume police action as unreliable. For ready reference the relevant paragraph is being quoted as under:
21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around.
That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
65. Similarly in the case of Pramod Kumar v. State (Govt. of NCT of Delhi), (2013) 6 SCC 588 the Hon'ble Apex Court
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has held that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. For ready reference the relevant paragraph is being quoted as under:
13. This Court, after referring to State of U.P. v. Anil Singh [1988 Supp SCC 686], State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC 652] and Ramjee Rai v. State of Bihar [(2006) 13 SCC 229] has laid down recently in Kashmiri Lal v. State of Haryana [(2013) 6 SCC 595] that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence.
66. Therefore, we find no reason to disbelieve the evidence of PW10 so far as the disclosure statement made in custody by the accused Shamshad Ansari and on the basis of which both the dead body and Scorpio and other incriminating articles sustained with blood marks had been recovered with its memo which also has been proved by some of the witnesses in their respective evidences.
67. In the instant case, as we found from cross-
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examination of PW10 he stood well so far the recovery of dead body of both deceased included with recovery of Scorpio and muffler etc. The evidence of PW10 also stands proved from oral evidence of other witnesses such as PW1, PW2, PW3 PW4, PW5 and PW6 who admittedly along with the police party though from their separate vehicles reached to the place (s) from where the dead body of both deceased and Scorpio vehicle were recovered.
68. Further postmortem examination reports Exhibit 5, and Exhibit 6 on perusal would indicate that the death of both the deceased namely Matlub and Md. Hadish had taken place within 24 to 36 hours of its post-mortem examination dated 04.02.2013. Therefore, inference can be drawn that both the deceased were done to death on 03. 02. 20013 itself. Their death, needless to mention were homicidal.
69. The learned counsel for the appellant has contended regarding recovery of dead bodies from an open field. We after going through material on record, it is admitted that both the dead body had been recovered from an open field located under Tati-Jharia locality. But, merely the recovery from field, it would not be correct to say that recovery from an open place, always is vulnerable.
70. As discussed herein above, there is nothing in Section 27 of the Indian Evidence which renders the statement of accused inadmissible if recovery of the article was made from any place which is open or accessible to others. In the instant
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case, accused/appellant Shamshad gave his statement as way of confession leading to recovery of the dead bodies and certain other incriminating and it is not the case of the defence that prior to the arrest of said accused, there was any clue about the dead bodies or Scorpio vehicle and other incriminating articles. Further, there is no testimony on record that the dead bodies or Scorpio vehicle has been seen prior to the arrest made by the PW10.
71. On the basis of above discussion, we are of the view that the prosecution has succeeded in proving the recovery of the dead bodies on disclosure statement made during police custody by accused/appellant Shamshad Ansari and under such circumstances, it is upon the said accused to explain as to how and under what circumstances, the dead body and muffler poured with blood owned by one of the deceased were recovered from the places indicated by him and further as to how blood clots were found lying upon cot in his house.
72. It needs to refer herein the settled position of law that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. 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
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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.
73. 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. Reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Sucha Singh v. State of Punjab [(2001) 4 SCC 375] wherein it has been held as under:
19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.
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74. The principles enunciated by the Hon'ble Apex Court in regard to the obligation of explanation in terms of Section 106 of the Evidence Act and the consequences of want of explanation have been explained by the Hon'ble Apex Court in the case of Satpal v. State of Haryana, (2018) 6 SCC 610 which reads as under:
"6. We have considered the respective submissions and the evidence on record. There is no eyewitness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine."
(emphasis supplied)
75. Thus, it is evident that in such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged.
76. Further from perusal of statement of the appellant/accused under section 313 Cr.P.C, it is evident
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that circumstances which have been put before the accused/appellant has been denied in cryptic manner only.
77. The law is well settled in this regard that the accused may choose to maintain silence or complete denial even when his statement under Section 313CrPC is being recorded, of course, the court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law.
78. In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 the Hon'ble Apex Court has, though recognized the right of the accused to maintain silence during investigation as also before the Court in the examination under Section 313CrPC but, at the same time, has also highlighted the consequences of maintaining silence and not availing opportunity to explain the circumstances appearing against him, including that of the permissibility to draw adverse inference in accordance with law. The relevant paragraph of the aforesaid judgment is being quoted as under:
"49. In terms of Section 313CrPC, the accused has the freedom to maintain silence during the investigation as well as before the court. The accused may choose to maintain silence or complete denial even when his statement under Section 313CrPC is being recorded, of course, the court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law.
52. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this
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opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law."
(emphasis supplied)
79. This Court has also considered the factual aspect based upon the story as has been put by the defence by going through the statement recorded under Section 313 Cr.P.C. but no such defence has been taken, rather, whatever question has been put, the same has simply been denied. As such, even though the opportunity was there by way of recording the statement in defence under Section 313 Cr.P.C. which is a vital right of an accused person.
80. This Court, in view of the aforesaid discussion, is of the view that there are the cogent evidences of the witnesses and, as such, will not vitiate the prosecution version keeping the fact into consideration that the case is based upon the testimony of PW-5, PW-6, PW-7 and PW10 who all along have supported the prosecution version.
81. It is evident that the prosecution placed reliance before the court mainly on three circumstances, firstly, the last company theory, secondly, the recovery of material objects which belonged to the deceased including vehicle used by the appellant and the material objects from the seized vehicle and thirdly, the recovery of the dead body of deceased on the basis of the confessional statement of the accused /appellant.
82. As a consequence of the above discussion, we are of the
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firm view that the prosecution has established the following links in the chain of incriminating circumstantial evidence appearing against the appellant.
83. These circumstances are:
(1) Accused/appellant and deceased were known to each other since it has come in testimony of P.W.6 that both the deceased being coal lifters were doing coal trade and Shamshad Ansari (appellant herein) had been assisting the deceased persons in selling coal on their behalf and collecting money for the same and he was being paid certain commission by both of deceased.
(2) From the testimonies of the witnesses it is evident that the accused/appellant having motive for murder of the deceased because accused/appellant Shamshad Ansari by selling of coal which was owned by both the deceased, had collected huge amount of money and the said money was due on him and said money had been demanded by both the deceased but Shamshad Ansari did not give money back and therefore relationship between the accused and both the deceased was strained.
(3) It has been specifically stated by the P.W.6 that his son before leaving the house on that very day had told him that he was called by accused/appellant Shamshad Ansari for purpose of returning back the
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money.
(4) Further both the deceased had gone together to the house of the accused/appellant by means of the Santro Car and this fact has been established by the prosecution by the testimony of the P.W.5 as discussed above.
(5) By virtue of testimony of P.W.5 it has been firmly established that deceased were lastly in the company with the accused/appellant.
(6) Accused/appellant gave his confessional statement basis upon which dead bodies of deceased and other incriminating material including the vehicle which was used in commission of the crime were recovered. (7) Medical evidence establishing that the cause of death of the deceased were homicidal.
(8) On the basis of confessional statement, the said Santro Car bearing No. JH 02 M-1617 with ATM card relating to ICICI Bank in the name of accused/appellant, had been recovered. (9) Failure of the accused to offer explanation as to how and under what circumstances, the dead bodies and muffler of one of the deceased blended with blood owned by one of the deceased were recovered from the places indicated by him and further as to how blood clots were found lying upon cot in his house. (10) Not satisfactory explanation has been given by the
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accused in his statement under Section 313 CrPC as discussed above;
84. Connected together, all the aforesaid circumstances form a clinching and complete chain of incriminating circumstances pointing exclusively towards the guilt of the accused appellant and totally inconsistent with his innocence in the said crime.
85. As discussed herein above there can be no trace of doubt that the circumstances should have been proven beyond reasonable doubt but at the same time, it is worthy to remember that in Sucha Singh v. State of Punjab [(2003) 7 SCC 643] it has been held by the Hon'ble Apex Court that the prosecution is not required to meet any and every hypothesis put forward by the accused and a reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. For ready reference the relevant paragraph is being quoted as under:
"20. ... The prosecution is not required to meet any and every hypothesis put forward by the accused. ... A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect."
86. Thus, from the evidence on record, we find that the prosecution was successful in bringing on record the circumstantial evidence i.e. existence of motive; the circumstances in which the deceased was last alive in the company of appellant-Accused, death was homicidal and
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body were found at the instance of confessional statement of accused and other incriminating articles were also recovered.
87. From the aforesaid analysis, we are of the convinced opinion that all the aforesaid circumstances which have been established by the prosecution complete the chain to prove the guilt of the appellant. The present case is one where there is no trace of doubt that all circumstances complete the chain and singularly lead to the guilt of the accused/appellant.
88. In view of the aforesaid premised reasons, we do not find any infirmity in the judgment of conviction and order of sentence passed by the learned trial court.
89. Accordingly, the instant appeal is devoid of merit and is hereby dismissed.
90. Consequently, I.A. if any also stands dismissed.
91. Let the Trial Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
(Sujit Narayan Prasad, J.) I agree.
(Navneet Kumar, J.) (Navneet Kumar, J.) Jharkhand High Court, Ranchi Dated, the 26th day of November, 2024.
A.F.R. Birendra /
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