Jharkhand High Court
Sahjad Ansari vs The State Of Jharkhand on 11 April, 2007
Equivalent citations: 2007(2)BLJR2352, 2007CRILJ3086, 2007 (6) ABR (NOC) 1009 (JHAR.) = 2007 CRI. L. J. 3086, 2007 (2) AIR JHAR R 541, (2007) 3 EASTCRIC 42, (2007) 2 JLJR 621
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik, R.R. Prasad
ORDER D.G.R. Patnaik, J.
Page 2353
1. By the judgment dated 12.2.2002 passed in Sessions Trial No. 526 of 1993, the Special Judge, Hazaribagh, had convicted the appellant for offences under Sections 366, 376, 302/34 IPC and Section 3(2)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. While sentence of rigorous imprisonment for life was awarded for the offence under Sections 302/34 IPC read with Section 3(2)(v) SC/ST Act, sentence of ten years for each of the offences under Section 366 IPC and 376 IPC was awarded besides sentence of seven years rigorous imprisonment under Sections 201 IPC. Two other co-accused who were also put on trial, were however acquitted of the charges.
The gist of the charge being that on 5.11.1992, the appellant along with two other co-accused persons namely Md. Nijamuddin Ansari and Ramnath Singh had abducted the prosecutrix and committed gang rape on her and thereafter, caused fatal injuries to her resulting in her death.
2. The facts of the case, in brief, is that on 5.11.1992, the prosecutrix was travelling by a bus from Ranchi to her sister's house at Giddi. The bus had stopped at a railway level crossing at Patratu since the gate was closed. It was at about 5.30 p.m. There were few passengers in the bus all of whom, except the prosecutrix, got down from the bus for having refreshments at a near-by the tea-stall. At that time, the appellant, whom the prosecutrix knew from before as a bus conductor, reached there on a motor cycle along with two of his associates. They got into the bus and forcibly made the prosecutrix to get down from the bus by criminally intimidating her on the point of a knife. They forcibly took her on the motor cycle along a Kutcha road towards a place known as Sayal. They left the motor cycle at some distance from the village and took her on foot to the house of accused Ramnath Singh. At the house, she saw three children, one aged person and one lady. After sending the inmates of the house away, the miscreants felled her down on the ground and committed gang rape on her. Thereafter, they took her forcibly to a coal mine at a distance of about one kilometer away from the house and on the way they threatened her with dire consequences if she reported the matter to any one and when she did not reply, one of them took out his belt and began lashing her with the belt. Later, the appellant Shahjad Ansari tied the neck of the prosecutrix with the belt and dragged her towards the coal mine and dumped her on the burning coal. Believing that she had died, the miscreants left the place. The prosecutrix suffered extensive burn injuries. Her clothes were totally burnt. Yet she was alive and by mustering courage, she walked towards a village located at a distance of about half a kilometer from the coal mines. She knocked at the door; the occupant of the house saw her and provided clothes to cover her body and took her to the nearest police station at Bhurkunda from where she was taken to hospital at Sayal and later she was shifted to Rajendra Medical College Hospital (RMCH) Ranchi. The prosecutrix had explained that she Page 2354 used to travel frequently by the bus from Ranchi to Giddi to meet her sister and she new Sahjad Ansari, the appellant as Bus Conductor.
The statement of the prosecutrix was recorded as her fard beyan by the police officer of the Bariatu P. S. at the RMCH in the presence of the doctor and victim's sister Stifen Minz and on the basis of the same the instant case was registered. It may be mentioned that the signature of the prosecutrix was not obtained on her fard beyan since both her hands and fingers were extensively burnt. Names of other two co-accused persons were ascertained by the investigating officer in course of investigation and all the three co-accused persons were charge sheeted and put on trial.
The prosecutrix in course of her treatment at the RMCH, died after about 35 days of the occurrence.
3. As many as twelve witnesses were examined by the prosecution, including the doctor who had conducted post mortem examination on the dead body of the deceased, and the investigating officer of the case, besides other witnesses.
4. The trial court placing reliance on the testimony of PW8 Stifen Minz who was witness to the FIR and in whose presence the prosecutrix had given her statement relating to the entire occurrence, and on the evidence of the police officer (PW12) who had recorded fard beyan of the prosecutrix and also on the evidence of the investigating officer, had recorded its finding of guilt against the present appellant for the aforementioned offences and sentenced him accordingly.
5. The appellant has assailed the impugned judgment of conviction and sentence primarily on the ground that since the purported fard beyan does not bear the signature or thumb impression of the prosecutrix, it should not have been treated as the FIR of the case nor could the fard beyan under such circumstances be used by the trial court for the purpose of corroboration or contradiction. Advancing his arguments, learned Counsel for the appellant submits that the fard beyan cannot even be used as a dying declaration of the prosecutrix since admittedly, the death of the deceased did not occur soon after the alleged date of the occurrence and for a further reason that the doctor in whose purported presence the fard beyan of the prosecutrix was recorded, has not been examined. Referring to the next ground, learned Counsel submits that the entire case of the prosecution rests on the statement of a solitary witness Strifen Minz (PW8) who being the sister of the prosecutrix is a highly interested witness and even otherwise, she is admittedly not an eye witness to the occurrence. Learned Counsel argues that neither the driver of the bus, nor any member of the house where the prosecutrix was allegedly taken and subjected to gang rape, has supported the prosecution case and further-more, the prosecution case does not find support even from the person who is claimed to have provided help to the prosecutrix by giving her clothes and taking her to the police station. Learned Counsel argues that under such circumstances, the finding of guilt against the appellant merely on the basis of the statement of PW8 is totally misleading, misconceived and not sustainable.
6. Learned Counsel for the State, on the other hand, while defending the impugned judgment of conviction and sentence, has controverted the arguments advanced on behalf of the appellants. Learned Counsel argues that the mere fact that the signature or thumb impression of the prosecutrix could not be taken on the fard beyan in itself Page 2355 does not render the fard beyan as invalid. While referring to the evidence of PW8, learned Counsel submits that the witnesses had categorically explained that both hands of the prosecutrix was burnt and, therefore, neither her signature nor thumb impression could be taken on the fard beyan of the prosecutrix. Learned Counsel submits further that the presence of PW8 at the hospital where her fard beyan was recorded, has not been disputed and, in fact, her presence was natural, since she is the sister of the victim lady and even though PW8 is not an eye witness to the occurrence, her evidence assumes importance in as much as she was present at the time when the victim had given her statement to the police and the witness has also confirmed that besides her, the doctor of the hospital was also present there when the statement of the victim was recorded by the police officer and this fact has also been confirmed by the police officer (PW12) who had recorded statement of the victim. Learned Counsel further submits that though after giving her statement the victim could survive for long and, but the fact that the statement of the victim lady indicates the circumstances under which she had suffered extensive burn injuries which eventually proved fatal, lends substantial weightage to the recorded statement of the victim and as such her statement can very well be used as dying declaration of the victim and can be safely relied upon.
7. For better appreciation of the rival submissions, reference to the evidence on record needs to be made. Out of 12 witnesses examined by the prosecution, PW1 Mostt. Dineshwari and Mostt. PW3 Phunnu and PW4 Laxmi Devi who are near relatives of the co-accused Ram Nath Singh have failed to support the prosecution case and consequently, they were declared hostile by the prosecution. PW5 Bindeshwari Rai who was the driver of the bus in which the prosecutrix was travelling from Ranchi to Giddi, has also not supported the prosecution case and was promptly declared hostile by the prosecution. However, this witness admits that on the date of the occurrence, he was the driver of the bus and the bus had stopped on the way at the railway crossing at Patratu. On being confronted by the prosecution with his previous statement made before the investigating officer, he has denied to have made any statement relating to the occurrence. PW12 Arjun Singh was tendered by the prosecution, although his statement was earlier recorded by the magistrate under Section 164 Cr.P.C. PW7 was also declared hostile on his failure to support the prosecution case. Thus, the prosecution had to rely upon the testimony of PW8 who is the sister of the deceased and on the statement of the doctor who had conducted postmortem examination on the dead body of the deceased, besides the statement of PW10, the judicial magistrate, who had recorded the statements of PWs 1 and 2 under Section 164 Cr.P.C. The statement of both the aforesaid witnesses were adduced in evidence and marked as Ext. 3 and 3/1 respectively.
8. From the trend of the cross examination of the witnesses, and the stand taken by the appellant in his defence, vide his statement recorded under Section 313 Cr.P.C., it appears that the defence has not disputed the fact that the deceased had suffered homicidal death on account of the burn injuries sustained by her and that the death had occurred during her treatment at RMCH, Ranchi. The fact that the deceased had suffered homicidal death is also confirmed by the testimony of PW11, Dr. Tulsi Mahato who has confirmed that on 11.12.1992 he had conducted post mortem examination on the dead body of the deceased Jyoti Shila Minz, aged 25 years and had found the following injuries:
Page 2356 Dermo epidermal burns including both lower limbs, including feet, both fore-arms and hands and front part of the neck.
He found burn areas infested at places and there was evidence of healing at different places. He had also found healed scab measuring pin-point to 1/2 x 1/4 cm. over front part of chest and face and upper part of the back of the chest, multiple in number, and all different sizes. Hymen bore old ruptured marks. In his opinion, death was on account of burn and its complication.
9. PW12, A.K. Bakla is the police officer who was posted at RMCH, Bariatu, Ranchi. He has stated that on 6.12.1992 at about 2.00 p.m. he had recorded statement of Jyoti Shila Minz (deceased) who was admitted to hospital as an indoor patient with burn injuries. He confirms that her statement was recorded by him in presence of Dr. M.M. Singh of the Hospital and also in presence of the victim's sister Stifen Minz and after recording her statement, he read over and explained the same to the victim and thereafter both the witnesses had appended their respective signatures to the recorded statement. He has introduced in evidence the aforementioned document (Fard beyan) which is in his hand writing and signature and was marked Ext. 1. He has explained that while recording the statement of the victim lady, he had found her to be capable of hearing, speaking and understanding. He has explained that it took almost 1/2 hour for him to record the statement of the victim who was conscious while speaking to him. He admits that he has not mentioned any explanation in the fard beyan as to why the signature or thumb impression of the lady was not taken on the fard beyan. He also admits that while recording statement of the victim, he did not ensure presence of any magistrate. He further affirms that after recording the statement of the victim, he forwarded the same to Bariatu Police Station.
10. PW8, Stifen Minz, is the sister of the deceased. She has stated that as she was told by Sushil Topno, a security guard of the Central Coalfields Limited, her sister Jyoti Shila Minz had boarded Rajdhani Express bus on 5.11.1992 to visit her house at Giddi. She adds that Sushil had also informed her that her sister Jyoti Shila Minz had suffered burn injuries and was admitted to RMCH in a serious condition. She went to RMCH where she found her sister at the hospital in a severely burnt condition. Both her hands and upper parts of the body were found extensively burnt. She had also seen burn injuries on the face and neck of the victim. This witness claims that despite such condition, the victim was in a position to speak feebly and she revealed that on the previous day, while she was travelling by Jharkhand Rajdhani Express Bus, she was taken away forcibly from the bus by three miscreants, when the bus had stopped at Patratu railway level crossing, and that she was taken on a motor cycle to house. She adds that the victim had referred to the name of one miscreants as Sahjad Ansari (appellant) and had further told that she was taken to a house and was subjected to gang rape by three miscreants and later by dragging her with a belt tied to her neck, they dumped her on the burning coal. Later, she sought help and the security guard Sushil Topno who was returning home saw her and offered her clothes and help her by taking her to hospital at Bhurkunda and on the next day (6.11.1992) she was admitted to RMCH, Ranchi. She explains that the police officer had recorded statement of the victim in her presence at the Hospital on 6.11.1992 and the victim was not able to sign or put her thumb impression on her statement recorded by the police officer since both her hands were burnt. She also affirms that Dr. M.M. Singh of the RMCH Page 2357 was also present when the statement of the victim was recorded by the police officer (PW12) and after the statement was recorded, she as well the doctor had appended their respective signatures on the document (Ext.1). She explains that the entire recording of the fard beyan of the victim took almost six hours since the victim used to fall unconscious intermittently.
11. The evidence of PW 10, the judicial magistrate, confirms that he had recorded the statements under Section 164 Cr.P.C. of Mostt. Dineshwari (PW1) and Arjun Singh (PW2) (Ext. 3 and 3/1 respectively). The aforesaid witnesses have however retracted from their previous statements, though both were confronted with their statements under Section 164 Cr.P.C. Both these witnesses in their respective statements under Section 164 Cr.P.C. had affirmed that the three accused persons had brought a girl in the late evening hours on the date of the occurrence to their house and all the three accused had committed rape on the girl and later she was taken by all the three miscreants away from the house and dumped on the burning coal. However, since the witnesses have retracted from their previous statements, the prosecution cannot avail any assistance from their earlier statements recorded under Section 164 Cr.P.C.
11.1 The investigating officer (PW9) has affirmed that on 7.11.1992, while he was posted as officer incharge of Patratu P.S. he received the fard beyan of Jyoti shila Minz (victim) recorded by ASI Shravan Kumar of Police Station Bhurkunda (A.K. Bakla of RMCH Police O.P.) which was forwarded to him by the officer incharge of Bhukunda P.S. He had registered the case at the police station on the basis of the fard beyan and had taken charge of the investigation. He had inspected the place of occurrence, which he describes to be a machan situated within Mouza Sayal at a distance of about 50 yards from the house of Sukur Singh. He describes the second place of occurrence as the colliery located at a distance of about 1 km from the first place of occurrence where had found burning coal at several places. He also affirms to have recorded the statement of witnesses Dineshwari Devi, Lakshmi Devi and Arjun Singh. His attention was invited to the statement of the witnesses recorded by him in course of investigation and he affirms that the witnesses who were subsequently declared hostile at the trial, had given statement incriminating against the accused persons. He explains that it was on the basis of the statement of the victim and other witnesses that he could assess the place of occurrence. He admits that he did not record statement of the owner of the stall situated near the railway crossing.
12. Out of the witnesses examined by the prosecution, the evidence of PW8 and that of PW12 are important and relevant. Both these witnesses have confirmed that the statement of the victim was recorded in their presence at the hospital where the victim was undergoing treatment for burn injuries sustained by her. Both these witnesses have stated that they saw extensive burn injuries on the body of the victim (PW8) has affirmed that both hands of the victim were burnt. It has come in the evidence that the victim could not survive and after about 35 days of the occurrence, she had died at the hospital. The doctor (PW11) has affirmed that the death of the victim was because of the burn injuries and its complication.
12.1 It is evident from the above facts that the victim was admitted to the hospital with burn injuries she had sustained on the night of 5.11.1992 and her death was on account of the burn injuries. It is true that the fard beyan of the victim Page 2358 claimed by the prosecution to be the FIR of the case does not bear signature of the maker thereof nor has the informant been examined at trial. As to why signature or thumb impression of the victim could not be obtained on her recorded statement, explanation has been offered by PW8 who happens to be a signatory to the fard beyan and a witness to the recording of the statements contained in the fard beyan. Mere absence of signature of the informant will not vitiate or nullify the FIR. Failure to observe the procedure laid down under Section 154 Cr.P.C. for recording fard beyan does not render the statement of the maker thereof inadmissible. The insistence on the signature of the maker of the FIR is for the purpose of lending authenticity to the words or statement so recorded by the maker. The proof of such authenticity can also be given by the person in whose presence the statement of the maker of the fard beyan was recorded. In a given case, where adequate explanation is provided for not obtaining the signature or thumb impression of the maker of the fard beyan, the fard beyan can still be admissible in evidence, if it has been introduced and proved in evidence by person in whose presence the statements were made and in whose presence the statement was recorded. The purpose of the FIR is only to set the law in motion if the information contained therein discloses commission of a cognizable offence. There is no dispute to the proposition that the FIR cannot be considered as a substantive piece of evidence, nor can it be used for corroboration in absence of maker thereof.
13. In the instant case, however, besides being the first information report (FIR) on the basis of which the case was registered, it is also the recorded statement of the victim lady as her dying declaration and therefore it becomes relevant and admissible in evidence. Both PWs 8 and 12 have reproduced the statement given by the victim as recorded by PW12. The contents of the statement indicate the circumstances in which the victim had sustained the extensive burn injuries which eventually poved to be the cause of her death and it also confirms the name and identity of the persons who had caused burn injuries to her as well as the person who had sexually assaulted her. Mere fact that the doctor in whose presence the statement of the victim was recorded has not been examined does not render the dying declaration as unreliable. The fact that while giving her statement, the victim was conscious enough and was capable of speaking, is confirmed by the evidence of PWs 8 and 12. The statement of the victim was recorded on the very next morning of the date of the occurrence indicating thereby that her statements were recorded at the earliest point of time. There is therefore no reason either for not accepting the statement of the victim as her dying declaration or to disbelieve the same. The learned trial court has rightly placed reliance on the recorded statement of the victim finding support from the evidence of PWs 8 and 12. It appears that the doctor who had examined the victim at the time when she was admitted to the hospital has not been examined and no medical report is available on the point of rape. The only evidence provided by PW 12 is that he found the hymen of the victim bearing old ruptured marks. Nevertheless, the affirmation made by the victim/deceased in her recorded statement supported by the evidence of PWs 8 and 12 confirms that the victim was abducted by the accused with intent that she be subjected to illicit sexual intercourse and she was subjected to gang rape by all the three accused persons and thereafter she was dragged and thrown on the burning coal at the colliery which resulted in extensive burn injuries causing her death. The name and identity of the present appellant is clearly indicated in the statement of the victim.
Page 2359
14. Having gone through the impugned judgment as recorded by the trial court, we find that the trial court has adequately discussed the evidence on record and has assigned adequate reasons for recording its finding of guilt for offences with which the appellant was charged along with other co-accused persons.
15. For the reasons aforesaid, we do not find any illegality or impropriety in the impugned judgment of conviction and sentence imposed upon the appellant by the trial court. There is no merit in this appeal, which is dismissed accordingly.
R.R. Prasad, J.
16. I agree.