Jharkhand High Court
Abbas Ansari @ Seniar Hussain vs The State Of Bihar (Now Jharkhand) on 20 February, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Criminal Appeal (DB) No. 102 of 1998(R)
(Against the judgment and order of conviction and sentence
dated 15.04.1998 (sentence passed on 16.04.1998) passed by
Sri Nirmalendu Kumar Kanth Niraj, learned 1st Additional
Sessions Judge, Giridih in S.T. No. 215 of 1996/75 of 1996)
Abbas Ansari @ Seniar Hussain, S/o Late Nago Mian,
R/o Vill- Dumar Chutio, P.S.- Nimiaghat, Dist.- Giridih.
... Appellant
Versus
The State of Bihar (now Jharkhand) ... Respondent
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PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
----
For the Appellant : Mr. Prabhat Kumar Singh, Amicus
For the Respondent : Mrs. Vandana Bharti, A.P.P.
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CAV on : 22/01/2025 Pronounced on : 20/02/2025
Per Rongon Mukhopadhyay, J. :
1. Heard Mr. Prabhat Kumar Singh, learned amicus curie for the appellant and Mrs. Vandana Bharti, learned A.P.P.
2. This appeal is directed against the judgment and order of conviction and sentence dated 15-04-1998 (sentence passed on 16- 04-1998) passed by Sri Nirmalendu Kumar Kanth Niraj, learned 1st Additional Sessions Judge, Giridih in S.T. No. 215 of 1996/75 of 1996 whereby and whereunder, the appellant has been convicted for the offence punishable under Section 302 IPC and has been sentenced to imprisonment for life.
3. The fardbeyan of Ahmed Hussain was recorded on 12-01-1996 in which it has been stated that the brother of the informant, namely, Mohammad Hussain alias Hardali worked as a labour in Katras and on 11-01-1996 at 9:00AM, he had left for Katras on a vehicle from Pardag. Today, i.e., on 12-01-1996 at 12:00 noon, the informant came to know from the villagers that in the bank of Jamunia river situated at a distance of 2 kilometers from the village, a dead body is lying and a crowd has assembled there. At this information, the informant, Razaque Ansari, Miajan Mian alias Asgar and others reached Jamunia river at Simarbeda where the informant had identified the dead body to be that of his brother Mohammad Hussain alias Hardali. There were several injuries on the person of the deceased.
Based on the aforesaid allegations Nimiaghat P.S. Case No. 3 of 1996 was instituted against unknown under Section 302/201 IPC. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions where it was registered as S.T. No. 215 of 1996/75 of 1996. Charge was framed against the accused under Section 302 IPC which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.
4. The prosecution has examined as many as 17 (seventeen) witnesses in support of its case:
P.W.1 Mohammad Hanif has stated that he had come to know that Hardali Mian had an estranged relationship with his wife and she had an illicit relationship with Abbas Mian. On 12-01-1996, he had seen the dead body of Hardali Mian in the bank of Jamunia river with several marks of injury on his person. Abbas Ansari, on being apprehended by the Police, did not give any statement before him.
In cross-examination, he has deposed that Police had not recorded his statement.
P.W.2 Qurban Mian has stated that on coming to know that a dead body is lying near Jamunia river, he had gone to the said place where he identified the dead body to be that of Mohammad Hussain and there were marks of injuries on his body. He is the Secretary of Anjuman and when he made an enquiry, he came to know that Mohammad Hussain had gone with Abbas to Isri on 11-01-1996. Abbas had accepted that he had gone to Isri with Mohammad Hussain. He has stated that the father of Mohammad Hussain, namely, Mauli Mian had disclosed that Abbas had an illicit relationship with his daughter-in-law and citing this issue,
2|Page Mohammad Hussain used to commit assault upon his wife. The statement of Abbas was recorded by the Police in his presence as well as in the presence of others.
In cross-examination, he has deposed that he had stated before the Police that Abbas was a frequent visitor to the house of Mohammad Hussain and used to assist in domestic chores. The statement of the accused was not recorded in his presence.
P.W.3 Barkat Ali has stated that the house of Abbas Ansari is situated at a distance of less than one kilometer from his house.
P.W.4 Nizamuddin Ansari has stated that about a day prior to the discovery of the dead body, Mohammad Hussain had gone to see a movie with Abbas and when Abbas returned, he disclosed that Hussain has stayed back. There was an illicit relationship between Abbas and the wife of Mohammad Hussain and this was the reason for Mohammad Hussain to have assaulted his wife. When Abbas was apprehended, he had confessed before the Police and others about committing the murder of Mohammad Hussain.
In cross-examination, he has deposed that he had not seen Mohammad Hussain and Abbas going together but the others had seen.
P.W.5 Majidan Khatoon is the sister-in-law of Mohammad Hussain, who has stated that the wife of Mohammad Hussain had an illicit relationship with Abbas and this was the reason why Mohammad Hussain had assaulted his wife. Mohammad Hussain had left with Abbas to see a movie on the insistence of Abbas and the wife of Mohammad Hussain also did not object, though Mohammad Hussain was reluctant to go as he had some household works to do.
In cross-examination, she has deposed that her statement was not recorded by the Police. On hearing the death of Mohammad Hussain, the villagers had assembled and Abbas was also amongst them and all had gone to the riverbank where the dead body was lying.
P.W.6 Ramjan Mian has stated that after he offered namaz, he heard a commotion that the dead body of Mohammad Hussain is lying
3|Page on the riverbank. He had gone to the bank of Jamunia river, where the dead body of Mohammad Hussain was lying.
In cross-examination, he has deposed that the Police had not recorded his statement.
P.W.7 Ahmed Hussain is the informant, who has stated that he was in his house when some villagers informed him that a dead body is lying in the bank of Jamunia river and some said that the dead body was of his brother. He immediately rushed to Jamunia river where he identified the dead body to be that of his brother Mohammad Hussain alias Hardali. There were several marks of injury on his body. After the Police came, his fardbeyan was recorded. He has proved his signature in the fardbeyan which has been marked as Exhibit-1. He has proved the handwriting and signature of N. Khan on the fardbeyan which has been marked as Exhibit-2. The Police had apprehended Abbas Mian and he was kept in the Police Station for a week and after making him an approver, had let him go. Against such conduct, the villagers had represented the Superintendent of Police and Deputy Superintendent of Police. The villagers had disclosed about the involvement of Abbas in the murder of Mohammad Hussain on account of his illicit relationship with the wife of Mohammad Hussain. He has stated that on 11-01-1996, he was doing the work of casting in his house and his brother was also working with him when Abbas came and offered his brother to go to a movie, but he had objected to the said proposal. Abbas Mian had taken his brother to a corner and said something in his ear and Mohammad Hussain had thereafter told him that he is going to Katras. When he had gone to Isri to purchase wires for casting, he had seen Abbas and Mohammad Hussain having tea near the cinema hall. Both had stated that after watching the movie, they will return back.
In cross-examination, he has deposed that Abbas was made an approver after six days of his arrest. He had become unconscious on seeing the dead body of his brother.
P.W.8 Dr. Kaushalendra Kumar was posted as a Civil Assistant
4|Page Surgeon at Sadar Hospital, Giridih and on 13-01-1996, he had conducted autopsy on the dead body of Mohammad Hussain alias Hardali and had found the following:
(i) ecchymosis around left eye.
(ii) lacerated wound on the left occipital protuberance 1½" x ½" x bone deep.
(iii) lacerated wound on the right upper eyelid 1/2"
x 1/8" x skin deep.
(iv) Penetrating wound on the paravertebral region near an angle of right scapula size 2" x 1½".
Chest cavity deep with clear margin of spindle shape.
(v) lacerated wound on the right side of the nostril ½" x 1/11" x skin deep. On dissection, skull was found intact, brain-A.A.D. Subcutaneous tissues of the neck- N.A.D. Hyoid Bone- intact. Larynx- trachea-N.A.D. In the lungs right middle dole be punctured with huge blood clot in the pleural cavity. Both chambers of the heart were found empty. Left lung was adhered with pleura. Liver-spleen and kidney- pale. Urinary bladder was empty. Intestine distended with gas. Stomach contained blood clot with normal mucosa.
The cause of death was opined to be on account of shock and hemorrhage as a result of injuries to the chest which was sufficient enough to cause death in ordinary course of nature. The post-mortem report has been proved and marked as Exhibit-3.
P.W.9 Nasiruddin Ansari and P.W.10 Mumtaj Ali did not support the case of the prosecution and were declared hostile by the prosecution.
P.W.11 Md. Kalimuddin has stated that a day prior to the death of Mohammad Hussain, he had seen him at Isri Bus Stand.
P.W.12 Miajan Mian alias Asgar did not support the case of the prosecution and was declared hostile by the prosecution.
P.W.13 Naushad Ansari has proved his signature on the inquest report which has been marked as Exhibit-1/1.
P.W.14 Nisar Hussain has proved his signature in the
5|Page fardbeyan which has been marked as Exhibit-1/2. P.W.15 Jafruddin Ansari has proved his signature on the inquest report which has been marked as Exhibit-1/3.
P.W.16 Razaque Ansari has stated that he had gone to the bank of Jamunia river and had found the dead body of his brother Mohammad Hussain alias Hardali. He had seen his brother and Abbas Ansari coming out from the movie theatre and he had a conversation with them. At 7:00PM, he had once again seen his brother with Abbas Ansari and Abbas had disclosed that if no vehicle is available, they will take a shortcut route to their house. On the next day, he found Mohammad Hussain dead. The accused had an illicit relationship with the wife of the deceased.
In cross-examination he has deposed that in the morning he had searched for his brother and Abbas Mian, but they could not be found at which he thought that both will come back since they had gone together and thereafter, he went to sleep.
P.W.17 Naziruddin was posted as a Sub-Inspector of Police in Nimiaghat P.S. when he heard a rumor floating around that near Jamunia river in Dumarchutio village, a dead body is lying and some villagers have assembled. After making a station diary entry, he along with other police personnel went near Jamunia river where the fardbeyan of Ahmed Hussain was recorded. After preparing the inquest report, the dead body was sent to Sadar Hospital, Giridih. He has proved the fardbeyan which has been marked as Exhibit-4. He has proved the formal FIR and the inquest report which have been marked as Exhibit-1 and 6 respectively. He had inspected the place of occurrence which is on the northern side of Jamunia river in an open space. The distance from Dumarchutio village to the place of occurrence is about one kilometer. No traces of blood were found at the place where the body was lying. There was grass nearby but there was no sign or clue in the same. After inspecting the place of occurrence, he had recorded the restatement of the informant as well as the statements of Nisar Hussain, Qurban Mian, Razaque Ansari,
6|Page Miajan Mian, Jafruddin and Naushad. On 13-01-1996, he had recorded the statement of Kalimuddin and Biru Kumar and on 14-01- 1996, he had recorded the statement of the wife of the deceased. On 16-02-1996, he had obtained the post-mortem report and on 18-03- 1996, he had recorded the statement of Abbas Ansari, who had admitted his involvement in the murder in front of several villagers. After completion of investigation, he had submitted charge sheet against Abbas Ansari. The witness Nasruddin had stated before the Dy. S.P. that Abbas had an illicit relationship with the wife of the deceased which was the reason for the murder. The witness Mumtaj Ali had stated that on 18-03-1996, Abbas Mian had confessed before the villagers of committing the murder of Muhammad Hussain near Jamunia river with a knife as he had an illicit relationship with the wife of Mohammad Hussain.
In cross-examination, he has deposed that the witness Laisoon Bibi had stated that the murder has been committed by Mubarak and Mehru, who is the brother of the deceased. He has proved the application given to C.J.M. Giridih for recording the 164 Cr.P.C. statement of Abbas Ansari which has been marked as Exhibit-A. The accused was let off after his statement was recorded under Section 164 Cr.P.C. On the basis of the confessional statement of the accused, the knife was searched near Jamunia river, but the same could not be traced out.
5. One Court witness has also been examined being C.W.1 Panchanand Sharma, who was posted as a Judicial Magistrate, First Class, Giridih and on 05-02-1996, he had recorded the 164 Cr.P.C. statement of Abbas Mian alias Seniar Ali. He has proved the 164 Cr.P.C. statement which has been marked as Exhibit-7.
6. The statement of the accused was recorded under Section 313 Cr.P.C. in which he has denied his complicity in the murder of Mohammad Hussain.
7. It has been submitted by Mr. Prabhat Kumar Singh, learned amicus curiae that admittedly there are no eyewitnesses to the
7|Page occurrence. The implication of the appellant as the person responsible for the murder of Mohammad Hussain is his purported confessional statement and the illicit relationship he was having with the wife of the deceased. In the 164 Cr.P.C. statement, the appellant has claimed to have witnessed the murder committed by Mehru Mian, the brother- in-law of Mehru Mian and Mubarak and when he opposed, he was also slapped and threatened. He has submitted that the confessional statement of the appellant does not have any evidentiary value as it was obtained under coercion and duress. There has been no recovery of any incriminating articles based upon the said confession.
8. Mrs. Vandana Bharti, learned A.P.P. has submitted that there are strong circumstantial evidence including the deceased having been last seen with the deceased which clearly proves the guilt of the appellant.
9. We have heard the learned counsel for the respective sides and have also perused the trial court records.
10. The case of the prosecution is based on circumstantial evidence as admittedly there are no eyewitnesses to the occurrence. The circumstances highlighted by the prosecution are; (a) the deceased was last seen with the appellant; (b) the appellant was having an illicit relationship with the wife of the deceased which triggered the murder so committed; and (c) the confessional statement of the appellant.
11. So far as the last seen theory is concerned, P.W.5 has stated about the appellant and the deceased leaving together to watch a movie and there was a tacit consent from the side of the wife of the deceased with whom the appellant was having an illicit relationship. The informant, who has been examined as P.W.7, has also stated similar to that of P.W.5, but has added that when he had gone to Isri to purchase wires for the purposes of casting, he had seen both of them having tea near the cinema hall and he had a conversation with them as well. P.W.16 had also seen the appellant and the deceased coming out from the movie theatre and he had told them to go home and, in this context, he had once again met them in the bus stand.
8|Page The evidence of these witnesses clearly depicts that the appellant had not taken away the deceased on a false pretext, but had indeed gone to watch a movie and their evidence also do not suggest of any misdemeanor on the part of the appellant towards the deceased. The evidence of P.W.5 also seems to reveal that on hearing the incident of murder, the appellant had also gone along with the other villagers to the place where the dead body was lying. Therefore, it cannot be concluded that merely because the deceased was last seen with the appellant, he is the perpetrator of the murder more so, when there is no corroborative material or strong circumstance available which would enhance such circumstantial evidence. Though several of the witnesses have stated about the cause of murder being the illicit affair the appellant was having with the wife of the deceased, but it seems that despite knowing about such affair, the appellant had a free access to the house of the deceased where he was a frequent visitor and no one had seriously objected to the offer of the appellant to the deceased to accompany him to watch a movie. The illicit relationship, as alleged, seems to have been developed by the prosecution witnesses in order to frame the appellant though the circumstances depicted above reveal that such allegations are far-fetched and is a figment of imagination.
12. The other aspect of the case is the purported confessional statement of the appellant which was blurted out on being apprehended by the Police in front of the villagers where the appellant is said to have committed the murder of Mohammad Hussain near Jamunia river. The presence of a large number of villagers at the time when the confessional statement was given by the appellant does not, in any way, suggest that the same was voluntary in nature. Moreover, as per the Investigating Officer (P.W.17), on inspecting the place of occurrence, he had neither found any blood nor any tell-tale signs in the grasses near the dead body indicating a struggle or for that matter the weapon of assault as efforts to trace out the same near the dead body on account of the confession of the appellant also proved futile
9|Page as stated by P.W.17 in his cross-examination. The confession of the appellant in no circumstances can be utilized by the prosecution to secure the conviction of the appellant. We may also take cognizance of Exhibit-7 which is the 164 Cr.P.C. statement of the appellant where a different scenario has been depicted involving a different set of persons as the assailants. This story also gets diluted in absence of any blood or signs of struggle near the place of occurrence. As per P.W.7, after his arrest, the appellant was kept at the Police Station for a week and thereafter, he was released to which the villagers had protested and had represented before the S.P. and Dy. S.P. The statement of the witnesses were recorded much earlier to the appellant being apprehended, but even then, the needle of suspicion did not point towards the appellant and he was allowed to record his 164 Cr.P.C. statement and was consequently let off as stated by P.W.17. There was no new material which had surfaced subsequently and it is not known as to what occasioned the Investigating Officer to once again apprehend the appellant and extract the confession from him. The entire sequence of events narrated above speaks of a botched-up investigation and no effort was made to secure the presence of the real culprits. The post-mortem report reveals about several injuries found on the body of the deceased including penetrating wound and if the murder had taken place near the bank of Jamunia river, it would be an undeniable fact that traces of blood would be found. The murder, it seems, was committed elsewhere and the body was thrown near the bank of Jamunia river which can be the only explanation available considering the entire facets of the case. None of the circumstances accentuated by the prosecution would justify the conviction of the appellant and as a consequence to the discussions made hereinabove, we hereby set aside the judgment and order of conviction and sentence dated 15-04-1998 (sentence passed on 16-04-1998) passed by Sri Nirmalendu Kumar Kanth Niraj, learned 1st Additional Sessions Judge, Giridih in S.T. No. 215 of 1996/75 of 1996.
10 | P a g e
13. This appeal is allowed.
14. Since the appellant is on bail, he is discharged from the liability of his bail bonds.
15. Pending I.A.s, if any, stands closed.
16. Before parting with this order, we take this opportunity to appreciate the assistance rendered by Sri Prabhat Kumar Singh, learned amicus curiae and we direct the Member Secretary, High Court Legal Services Committee to extend the stipulated fees to Mr. Singh within a period of two weeks from the date of receipt/production of a copy of this order.
17. Office is also directed to ensure that a copy of this order is served upon the Member Secretary, High Court Legal Services Committee.
(RONGON MUKHOPADHYAY, J.) (ARUN KUMAR RAI, J.) Jharkhand High Court, Ranchi Dated the 20th Day of February, 2025 Preet/N.A.F.R. 11 | P a g e