Jharkhand High Court
Salauddin Ansari vs The State Of Jharkhand34 on 17 July, 2023
Author: Subhash Chand
Bench: Sujit Narayan Prasad, Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 515 of 2011
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(Against the Judgment of conviction and order of sentence dated
19.07.2011 and 21.7.2011 respectively passed by the Sessions
Judge, Godda in S.T. No. 186 of 2010)
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Salauddin Ansari, son of Noor Mohammad Ansari, resident
of Village+ P.O. Lalghutwa, P.S. Lalmatiya, Dist. Godda.
... ... ... ... ...Appellant
-Versus-
The State of Jharkhand34 ... ...Respondent
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
For the Appellant : Mr. Jitendra Shankar Singh, Advocate
Mr. Ashish Kumar, Advocate.
For the State : Mrs.Vandana Bharti, A.P.P.
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C.A.V. on 05.07.2023 : Pronounced on 17.07.2023
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Per Subhash Chand, J.
The instant Criminal Appeal is directed against the judgment of conviction dated 19.07.2011 and order of sentence dated 21.07.2011 passed by the Sessions Judge, Godda in S.T.No. 186 of 2010 whereby the accused Salauddin Ansari was convicted for the offence under Sections 302/307 of the Indian Penal Code and 3 of the Explosive Substance Act and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/- in default to further undergo simple imprisonment for three months under Section 302 of the Indian Penal Code. The appellant- accused further sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.5,000/- in default to undergo simple imprisonment for three months under Section 307 of I.P.C. The appellant-accused has also been sentenced to undergo rigorous 2 imprisonment for life and fine of Rs.10,000/- in default to undergo simple imprisonment for three months under Section 3 of the Explosive Substance Act.
2. The brief facts leading to this Cr. Appeal are that the informant Kalimuddin Ansari had given the written information with the Police Station concerned Lalmatiya, District-Godda on 04.02.2010 with these allegations that his father had gone to Lalmatiya market and came back from market to the house at 7 O'clock in the evening and he had brought with him a cock. The informant and his younger brother Md. Tamijuddin Ansari both were coking the cock in the courtyard of the house and his father and mother both were sitting in the courtyard of the house adjoining to the stair case. At the same time, a phone call came on the mobile of the father of the informant from his brother. He began to talk on the phone standing in the courtyard. In the meantime, the accused Hurmuz Ansari, Lal Md. Ansari, Salauddin Ansari, Jalal Ansari all sons of Majid Ansari, Irshad Ansari son of Lal Md. Ansari, Salauddin Ansari, Safruddin Ansari, Javir Ansari all the three sons of Noor Md. Ansari, Jakir Ansari, Sakir Ansari, both sons of unknown, Gulam Ansari, all resident of Lalgutwa, P.S. Lalmatiya, District-Godda, Salim Ansari, Sherakaun all the thirteen persons came in the courtyard of the house of the informant who were armed with deadly weapon having scaled the west northern boundary wall of the courtyard of the house of informant. Gulam Ansari had thrown a bomb over the parents of the informant but same did not explode. Again 3 another bomb was thrown by Salauddin Ansari which hit on the chest of the father of informant who fell down on the earth. All the accused persons fled away. Within five minutes the father of informant died. On account of the explosion of the bomb, the smoke was in the whole of the courtyard. They cried and after some time Police also came there. The accused persons had caused this occurrence on account of old enmity. On this written information, the Case Crime No. 11 of 2010 was registered against all the thirteen named accused under sections 302/307 read with 34 of the I.P.C. and sections 3, 4, 5 of Explosive Substance Act with the Police Station Boarijore (Lalmatiya), District-Godda.
3. The I.O. filed charge-sheet against accused Salauddin Ansari for the offence under Sections 302 and 307 read with 34 of I.P.C., under Section 3,4,5 of Explosive Substance Act and the investigation against rest of the accused was continued as stated in the charge-sheet filed against Salauddin Ansari on 04.05.2010.
4. The Magistrate concerned took cognizance on the charge-sheet and committed the file to the Court of Sessions Judge, Godda for trial. The charge was framed against the accused Salauddin Ansari under Section 302 read with 34, Section 307 read with 34 of I.P.C. and Section 3 of Explosive Substance Act. The charge was read over and explained to the accused which the accused denied and claimed for trial.
5. On behalf of prosecution to prove the charge against the accused Salauddin Ansari in oral evidence examined eight witnesses P.W.1 Subhan Ansari, P.W.2 Ramijan Bibi, P.W. 3 Dr. 4 Rakesh Ranjan, P.W.4 Naresh Prasad Sinha, P.W.5 Dr. Satyendra Mishra, P.W.6 Kalimuddin Ansari, P.W.7 Tamizuddin and P.W.8 Md. Mofuzuddin Ansari.
6. On behalf of prosecution in documentary evidence adduced Injury report of injured Rajaman Nisa (Ext.1), seizure memo (Ext.2), carbon copy of Inquest report (Ext.3), Sanction for prosecution (Ext.4) Para 1 to 69 of case diary (Ext.5), requisition sent for treatment of injured Rajaman Nisa, Fardbayan (Ext.7), Case forwarding endorsement on Fardbayan (Ext.7/1), case registration endorsement on Fardbayan (Ext. 7/2), Formal F.I.R. (Ext.8) Postmortem report of Haffizuddin Ansari (Ext.9), signature of Mofuzuddin Ansari on Inquest report (Ext. 3/1), pieces of mobile, pieces of bangle and splinter (material Ext.1).
7. The statement of the accused was recorded under Section 313 of Cr.P.C. who denied the incriminating circumstance in evidence against him and told himself to be innocent and also stated that the deceased used to make bomb himself.
8. In defence evidence adduced Ext. A certified copy of the order dated 01.09.2009 in G.R. 527 of 2009/T.R. 1111/11, Ext. B certified copy of Boarijore (Lalmatiya) P.S. Case No. 54 of 2009 and Ext. C- certified copy of charge-sheet of Lalmatiya P.S. Case No. 54 of 2009 and no oral evidence in defence was adduced on behalf of the accused.
9. The learned Trial Court after hearing the learned A.P.P. for the State and learned Counsel of the accused passed the judgment of conviction on 19.07.2011 against the accused 5 Salauddin Ansari under Sections 302/307 of I.P.C and Section 3 of Explosive Substance Act and sentenced vide order as stated above.
10. Aggrieved from the impugned judgment of conviction and sentence, this Cr. Appeal is preferred on behalf of appellant Salauddin Ansari on the ground that the impugned judgment of conviction and order of sentence passed by the court-below is bad in the eye of law. The mode, manner and actual participation of the appellant is not proved on the prosecution evidence. The trial court has not appreciated the prosecution evidence in a proper perspective. P.W. 6 and P.W. 7 who claimed himself to be eye- witness have not stated regarding the involvement of the appellant-convict in explosion of the bomb in their cross- examination. The learned trial court did not appreciate this fact that the deceased was himself a habitual criminal who used to prepare the bomb and while preparing the same on account of the explosion he died. The evidence of the prosecution witnesses is contradictory to one another, therefore, prayed to set aside the impugned judgment of conviction and sentence and to allow this appeal. Consequently, to acquit the appellant from the charge framed against him.
11. We have heard the learned Counsel for the appellant and the learned A.P.P. on behalf of the State and perused the material on record.
12. In order to decide the legality and propriety of the impugned judgment of conviction and sentence the prosecution 6 evidence is required to be re-evaluated by this Court which is reproduced here-in-below:
12. 1 P.W.1 Subhan Ansari in his Examination-in-chief says that the occurrence was of six months ago at 6 p.m. Haffizuddin had died. How he died he is not aware.
This witness was declared hostile on behalf of prosecution and was cross-examined and he denied the statement under Section 161 of Cr.P.C. given to the Investigating Officer during investigation.
12. 2 P.W.2 Ramijan Bibi in her Examination-in-chief says that the occurrence was of six months ago at 5 p.m. the old man, who was in her adjoining house was murdered. How he was murdered she is not aware. She heard the sound of bomb. This witness was also declared hostile by the prosecution and cross- examined and she denied in regard to the statement given to the Investigating Officer during investigation under Section 161 of Cr.P.C.
12. 3 P.W.3 Dr. Rakesh Ranjan in his Examination-in-chief says that on 04.02.2010 on requisition of the Police, he examined Riwan Nisa and found following injuries:
i. Multiple superficial abrasion with black mark over left forearm. The age of injury was within 1-2 hours caused by explosive substances.
ii. This is the injury report prepared by me in my handwriting and signature which I identify which is marked Ext.1
12. 4 P.W.4- Naresh Prasad Sinha, the Investigating Officer in his Examination-in-chief stated that on 04.02.2010 he took 7 over the investigation of Boarijore (Lalmatiya) P.S. Case No. 11/2010 and he recorded the re-statement of Kalimuddin Ansari and also the statement of Tamizuddin Ansari, Rijwan Nisa, Subhan Ansari, Ramijan Titi, Muzibur Rahman, Mofuzuddin Ansari. He also inspected the place of occurrence and he also prepared the seizure memo of the exploded bomb, piece of bangle, broken mobile, the remains of the exploded bomb, splinters, piece of wire. The seizure memo is in his handwriting and got the signature of Rafique Ansari and Habibul Rahman on the seizure memo. The seizure memo is marked Ext.2. The seized mobile, piece of bangle and splinter were produced by this witness before the court which was exhibited material Ext.1. He also prepared the inquest report of deceased Haffizuddin Ansari which was in his handwriting and signature. The witness of the same are Mofuzuddin Ansari and Moziur Rahman and the inquest report is marked Ext. 3. The prosecution sanction order was given to him by Virendra Kumar Mishra, Commissioner, Godda marked Ext.4.
He prepared the charge-sheet against accused Salauddin Ansari and filed the same before the Magistrate. He also exhibited the para 1 to 69 of the case diary marked Ext. 5. The medical examination report is in handwriting of Satyendra Sinha which he received marked Ext.6. The fardbayan was written by Sub- Inspector Rana Pratap Singh on his direction which was given by Kalimuddin Ansari under his signature. He recognized the same and marked Ext. 7. The endorsement on the fardbayan is marked Ext. 7/2. The case was registered by Nodal Bhushan Minz on his 8 endorsement which is marked Ext. 7/2. The formal F.I.R. was also prepared by Nodal Bhushan Minz which is marked Ext.8. In cross-examination this witness says that he had received the information on 04.02.2010 at 19:15 with the Police Station. The Sanha of the same was registered at No. 99 dated 04.02.2010 at 22 hours. On account of the utter dark night, he inspected the place of occurrence, prepared seizure memo on 05.02.2010. Ext.2 of bomb explosion certificate was prepared by him. No powder was obtained. The blood stained soil were there. Several small pieces were found by him at the place of occurrence. Bomb splinter was also obtained from the injury of the deceased. No other material was received from the house of deceased. The box of the bomb was seized by him. The same was handed over to Bomb Disposal Expert of which receipt was not made in the diary. It is wrong to say that the deceased Haffizuddin Ansari died on account of the explosion of the bomb while preparing bomb.
12.5 P.W.5 Dr. Satyendra Mishra, who conducted the post- mortem of deceased, in his Examination-in-chief stated that on 05.02.2010 at 11:45 a.m. he conducted the post-mortem examination on dead-body of Hafijuddin Ansari and found the following ante-mortem injury:
i. Badly lacerated injury triangular in shape with vertex pointing away from body. Measuring 11"x 10" x 6" muscle deep. Over the left infra memory region with abraded and superficially burnt area surrounding. Foreign bodies like wire, concrete materials were present in the wound.
ii. Superficial burnt left ala of nose.9
iii. Explosive injury 5"x 3"x muscle deep on the inner aspect of left upper forearm with a wire. All these injuries were caused by explosive substances.
On dissection there was fracture of 4th to 7th ribs on left side. Left semi thorax fell of blood. Hematoma in the left lung. Heart was preformatted hence was empty. Stomach contained partially digested rice, dal and tomato.
Probable time since death within 24 hours. In my opinion death was from haemorrhage and shock resulting from the above injuries caused by explosive substance.
This report is in his handwriting and bears the signature which he identified marked Ext. 9. Such injuries are possible if a person is attacked with bomb explosion.
In cross-examination this witness says that these types of injuries are not possible if the deceased would have prepared the bomb as in that case his hands will be first affected. He cannot say whether the bomb exploded on the ground or not but such injury was possible if the bomb is thrown directly on the inner aspect of the hand. He did not find any injury on the outer aspect of the left upper forearm.
12.6 P.W.6 Kalimuddin Ansari in his Examination-in-
chief says that the occurrence is of 04.02.2010 at 3:00 p.m. Gulam Ansari had thrown bomb on Haffizuddin Ansari which did not explode. Again Salauddin Ansari threw the bomb on Haffizuddin Ansari which hit on the chest of Haffizuddin and exploded. After 10 to 15 minutes Haffizuddin died. The bomb also hit to his mother Rajaman Nisa in the hand and she sustained injuries on her hand. The occurrence was in the courtyard of the house of Haffizuddin Ansari. The fardbayan is in his signature 10 which was written by Police in his presence marked Ext. 7. He recognized the accused Salauddin Ansari in the dock. In cross- examination this witness says that the Police has recorded his restatement on the very day of occurrence. He did not say to the Police that the second bomb was thrown by Gulam Ansari which exploded and injured to his father. His courtyard was 10 hand x 10 hand made of clay. The first bomb which was thrown in the courtyard did not explode. The second bomb exploded. 12.7 P.W.7 Tamizuddin in his Examination-in-chief says that the occurrence is of 04.02.2010 at 7 p.m. He was in the courtyard along with his mother and father. First of all, Gulam Ansari threw the bomb which did not explode. Again Salauddin threw the bomb which exploded on the chest of his father. His father died within 10 to 15 minutes. The bomb also hit to his mother on her hand and she sustained injury. 12 to 13 persons were along with the accused had hurled the bomb. He identified Salauddin in the dock who threw the bomb. In cross-examination this witness says that the night was dark. His courtyard was 4 hand x 4 hand. His house comprised four kothri. Two kothri were in east and two were in west. He was cooking cock in the courtyard. His father was talking on the mobile phone. Gulam Ansari also threw the bomb but the same did not hit his father. The house of Salauddin is at the distance of four houses from his house. It is wrong to say that his father was preparing bomb and while preparing bomb he died on account of explosion of the bomb.
1112.8 P.W.8 Md. Mofizuddin Ansari in his Examination-in- chief says that one year ago in the night Haffizuddin died on account of bomb explosion. Who threw the bomb he is not aware. His statement was taken by the Police and he identified his signature marked Ext. 3/1. The inquest report of the dead-body was prepared in his presence.
13. The learned Counsel for the appellant has submitted that the conviction of the appellant is based on testimony of P.W.6 and P.W.7. P.W. 6 is Kalimuddin Ansari and P.W.7 is Tamizuddin and their statements are contradictory to each other. As per prosecution case 13 persons intruded in the courtyard of the house which is highly improbable as the courtyard was 10 hand x 10 hand in view of the statement of P.W.6 Kalimuddin Ansari while 4 hand x 4 hand in view of statement of Tamizuddin. The I.O. filed charge-sheet against the sole appellant Salauddin Ansari. The testimony of these two witnesses cannot be relied as from the statement made by these witnesses in cross- examination. The involvement of the appellant is not proved. Both these two witnesses are the most interested witness as such their testimony cannot be believed. No independent witness corroborates the prosecution story. P.W.1 Subhan Ansari, P.W. 2 Ramijan Bibi have turned hostile. Both the two witnesses P.W.6 Kalimuddin P.W.7 Tamizuddin Ansari both have stated that the bomb hit on the chest of the deceased Haffzuddin Ansari; while there is no injury on the chest of deceased-Haffizuddin Ansari as per postmortem report, therefore, the ocular evidence is not 12 corroborated with the medical evidence. It is also further submitted that the trial court while holding the appellant guilty for the offence under Section 302 and 307 of I.P.C. also gave finding of commission of the murder of deceased in furtherance of common intention. This finding is bad as there is nothing on record with whom accused persons, the appellant Salauddin committed the alleged offence of murder and attempt to murder as well. It is also further contended by the learned Counsel for the appellant that as per prosecution case the occurrence is of 7 O'clock of evening of 04.02.2010 while the question put to the appellant-convict Salauddin Ansari under Section 313 of Cr.P.C. in which the time of occurrence is shown 7 O'clock of morning. The incriminating circumstance was not placed before the appellant-accused while recording statement under Section 313 of the code of Criminal Procedure by the trial court which prejudiced to the appellant and from the wrong statement under Section 313 of Cr.P.C. as recorded by the trial court the whole trial vitiated and the incriminating circumstance which was not explained to the appellant-convict, the same cannot be used in evidence against him. In support of his contention, learned Counsel for the appellant relied upon the judgment dated 28.09.2020 rendered by the Hon'ble Apex Court in the case of Maheshwar Tigga vrs. State of Jharkhand in Cr. Appeal No. 635 of 2020 (arising out of S.L.P. (Cr.) No.393 of 2020). The relevant para of the said judgment reads as under:
"Para 9. It stands well settled that circumstances not put to an accused under Section 313 Cr.P.C. cannot 13 be used against him, and must be excluded from consideration. In a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish his defence, but also to explain the incriminating circumstances against him. A probate defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt. This Court, time and again, has emphasized the importance of putting all relevant questions to an accused under Section 313 Cr.P.C. In Naval Kishore v. State of Bihar, (2004) 7 SCC 502, it was held to an essential part of a fair trial observing as follows:
"5.....The questioning of the accused under Section 313 Cr.P.C. was done in the most unsatisfactory manner. Under Section 313 Cr.P.C. the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain in adverse circumstances in the evidence and the Section 313 examination should not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence......"
14. Per contra learned Addl. Public Prosecutor has submitted that the impugned judgment of conviction and sentence passed by the trial court does not bear any infirmity. The prosecution case is well proved from the testimony of two eye- witnesses P.W.6 Kalimuddin Ansari and P.W.7 Tamizuddin Ansari 14 whose presence cannot be disbelieved at the place of occurrence keeping in view the time and the place of occurrence. Both the two witnesses are natural witnesses keeping in view the time and place of the occurrence. The testimony of independent witness cannot be expected. This ocular witness also corroborated with the medical evidence as per postmortem report. The injuries which are shown on the body of deceased are very much near the chest that is why the ribs of deceased had fractured on account of explosion of bomb. Moreover, in inquest report also shown the injury on the chest of deceased. The medical evidence is only opinion, same cannot be prevailed upon the ocular evidence. So far as the statement of accused under Section 313 of Cr.P.C. is concerned though inadvertently the time is shown of morning while in the F.I.R. of prosecution and in testimony of all the witnesses time of occurrence is 7 O'clock of evening. Simply mentioning the time of morning does not prejudice the appellant. The appellant has failed to show how he was prejudiced from this statement mentioning the time of occurrence of morning. Moreso when in the evidence against him time of occurrence is of evening. On this sole ground the whole of the prosecution case cannot be discredited.
15. The prosecution case is based on direct evidence. As per prosecution case the date of occurrence is 04.02.2010 at 7 O'clock of evening and place of occurrence is the courtyard of the house of deceased. At the time of occurrence, the deceased Haffizuddin Ansari his wife Riwan 15 Nisa and the two sons of the deceased P.W.6 Kalimuddin Ansari and P.W.7 Tamizuddin Ansari were present in the courtyard of the house of deceased. The Investigating Officer has prepared the site plan of the place of occurrence though he has not given the measurement of the courtyard of the house of deceased. As per prosecution case thirteen persons came in the courtyard of the house of deceased after having scaled the boundary wall. The first bomb was thrown by Gulam Ansari which did not explode and second bomb was thrown by Salauddin Ansari which exploded and hit to the chest of deceased Haffizuddin Ansari who died within 10 to 15 minutes on account of sustaining injury caused on account of explosion of bomb. The eye-witness of the occurrence are P.W.6 Kalimuddin Ansari and P.W.7 Tamizuddin Ansari. The wife of deceased Riwan Nisa the injured eye-witness was not examined on behalf of prosecution, therefore, the charge proved against the accused persons as held by the trial court is to be considered in view of the evaluation of the testimony of P.W.6 Kalimuddin Ansari, P.W.7 Tamizuddin Ansari and also the testimony of P.W.3 Dr. Rakesh Ranjan who proved the injury report of Riwan Nisa wife of deceased and also testimony of P.W.5 Dr. Satyendra Mishra who conducted the postmortem of deceased as well the testimony of Investigating Officer who were examined on behalf of prosecution.
16. P.W.6 Kalimuddin Ansari, the eye witness in his Examination-in-Chief specifically says that on 04.02.2010 at 8 16 p.m. Gulam Ansari hurled bomb on Haffizuddin which did not explode. Thereafter Salauddin Ansari threw the bomb which exploded on the chest of Haffizuddin and Haffizuddin died within 10 to 15 minutes. His mother Rajaman Nisa also sustained injury on account of the explosion of bomb on her hands. This witness proved the contents of the fardbayan Ext. 7. This witness also stated in the fardbayan that at the time of occurrence while he and his brother were cooking cock his father and mother were sitting near the stair case in the courtyard and as the phone call came to his father he began to talk on his mobile phone and at the same time the first bomb was thrown by Gulam Ansari which did not explode and the second bomb was thrown by Salauddin Ansari which exploded and hit on the chest of his father Haffizuddin Ansari. This witness says that after explosion of the bomb all the other accused fled away. The courtyard of his house was 10 hand x 10 hand. In cross examination the defence counsel could not bring contrary conclusion as the statement made by this witness in his Examination-in-chief proving the contents of the fardbayan Ext.7 also.
17. P.W.7 Tamizuddin Ansari is also the eye-witness of the occurrence. He is also the son of deceased. He was also present at the place of occurrence. He stated that the occurrence was of 04.02.2010 of 7 p.m. and in his courtyard his father and mother both were present and Gulam Ansari threw the bomb which did not explode. Salauddin Ansari threw the bomb which hit on the chest of his father and within 10 to 15 minutes his 17 father died. The bomb was also hit to the hands of his mother. This witness was also cross-examined though in cross- examination he stated that the courtyard was 4 hand x 4 hand but no contrary conclusion could be done from this witness by the defence Counsel in the cross-examination. This witness also stated that while he and his brother were cooking cock in the courtyard, his father was talking nearby them on the mobile phone while he was hit with the bomb which was thrown by Salauddin Ansari. The bomb which was thrown by Gulam Ansari did not explode. The witness P.W.6 Kalimuddin Ansari and P.W.7 Tamizuddin Ansari both the witnesses have identified the accused in the dock and have attributed role of throwing the bomb which hit to their father causing death on the spot.
18. Though there is minor contradiction in the testimony of these two witnesses which is not on material point and which can be on account of perceiving the occurrence by the witness but there is consonance in the testimony of both the witnesses in regard to the occurrence on the material points.
19. Though the injured eye-witness wife of deceased was not examined on behalf of prosecution but as stated by the eye-witness P.W.6 Kalimuddin Ansari and P.W. 7 Tamizuddin Ansari that the wife of deceased also sustained hand injury on account of explosion of the bomb is well proved from the testimony of P.W.3 Dr. Rakesh Ranjan who has proved the injury report of Riwan Nisa and found the following injury: 18
i. Multiple superficial abrasion with black mark over left forearm. The age of injury was within 1-2 hours caused by explosive substances.
ii. This is the injury report prepared by me in my handwriting and signature which I identify which is marked Ext.1 Further the testimony of these two eye-witnesses P.W.6 Kalimuddin Ansari and P.W.7 Tamizuddin is also corroborated with the inquest report and medical evidence as well. Both the eye-witnesses have stated that it was Salauddin Ansari who threw the bomb and hit to their father Haffizuddin on the chest. The inquest report is Ext. 3/1 which is proved by P.W.4 Investigating Officer Naresh Prasad Sinha. In the inquest report in column No.5 is shown the wound in the left side of the chest in which splinter was also visible and another injury was on the left elbow of the left hand and also in the left wrist. The splinter was also visible and injury was also on the nose. The postmortem report of deceased Haffizuddin Ansari is proved by P.W.5 Dr. Satyendra Mishra. The witness found the following ante-mortem injuries:
i. Badly lacerated injury triangular in shape with vertex pointing away from body.
Measuring 11"x 10" x 6" muscle deep. Over the left infra memory region with abraded and superficially burnt area surrounding. Foreign bodies like wire, concrete materials were present in the wound.
ii. Superficial burnt left ala of nose.
iii. Explosive injury 5"x 3"x muscle deep on the inner aspect of left upper forearm with a wire From the postmortem report which is proved by P.W.5 Dr. Satyendra Mishra as Ext.9. it is found that badly lacerated 19 injury was in triangle shape over the left infra memory region with abraded and superficially burnt area surrounding. He also stated that on dissection there was fracture of the 4th to 7th ribs on the left side and it is stated that the cause of death was seizure of haemorrhage and shock resulting from the above injury caused by explosive substance. The testimony of this witness in his cross-examination was also suggested question by the defence Counsel and he replied that the injury which the deceased had sustained were not possible to be caused while preparing the bomb as in that case his hands will be first affected. He did not find any injury on the outer aspect of the left upper forearm of the deceased. This witness stated that the injury which deceased had sustained were likely to be caused in a attack with bomb explosion Therefore the defence taken by the accused on behalf of the appellant-convict that deceased died while preparing the bomb is not supported with the testimony of P.W.5 Dr. Satyendra Mishra who had proved the postmortem report of deceased and stated that the injuries which the deceased had sustained could not be caused while preparing the bomb because it would have affected the hands firstly.
20. The testimony of P.W.6 Kalimuddin Ansari and P.W.7 Tamizuddin Ansari which is corroborated with the testimony of P.W.3 Dr. Rakesh Ranjan and P.W.5 Dr. Satyendra Mishra as well is also corroborated with the testimony of P.W.4 Naresh Prasad Sinha. This witness has 20 stated that he recorded the statement of witness Kalimuddin Ansari and Tamizuddin Ansari and also recorded the statement of Dr. Rakesh Ranjan and Dr. Satyendra Mishra as well. In cross- examination there is nothing on record that the witness P.W.6 Kalimuddin Ansari P.W.7 Tamizuddin Ansari, P.W. 3 Dr. Rakesh Ranjan, P.W.5 Dr. Satyendra Mishra what have stated in their testimony was not in their statement recorded by the Investigating Officer under Section 161 of Cr.P.C. The Investigating Officer has also proved the seizure memo of the remains of the bomb, piece of bangle, broken mobile and splinter wire. The splinter was also brought out while conducting postmortem by the Doctor. This seizure memo is proved as Ext. 2 by P.W. 5 Naresh Prasad Sinha. The broken mobile, the piece of the mobile, piece of the bangle, splinter were also produced by P.W.5 Naresh Prasad Sinha during examination before the trial court and proved them as material Ext.1. This seizure memo also supports the testimony of the ocular evidence wherein it came that the deceased was talking on mobile at the time of attack made with the bomb by the appellant-convict Salauddin Ansari. This witness also proved the inquest report of deceased in which the wound and injuries also shown on the chest of deceased.
21. The contention made by learned Counsel for the appellant that the testimony of P.W.6 Kalimuddin Ansari and P.W.7 Tamizuddin cannot be relied because they are the interested witness is not sustainable because as per prosecution 21 case and evidence adduced on behalf of the prosecution the place of occurrence is the courtyard of the house of deceased and both the witnesses are the son of deceased. Both were present at the time of occurrence along with their father and mother. The time of occurrence is 7 O'clock of evening since the occurrence was within the four walls of the courtyard of the house of deceased. The presence of any independent witness at the place of occurrence cannot be expected. Though both these eye-witnesses are the sons of deceased, merely on this ground of relation, their testimony cannot be discarded; rather their testimonies is found cogent and reliable keeping in view their presence at the place of occurrence in view of the time of occurrence which is well corroborated with the testimony of Investigating Officer. P.W. 4 Naresh Prasad Sinha and also the testimony of P.W.3 Dr. Rakesh Ranjan and P.W.5 Dr. Satyendra Mishra. The Hon'ble Apex Court held in Gangabhavani vs Rayapati Venkat Reddy Cr. Law Journal 2013 (4) at 4618:
15. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.
22. The Hon'ble Court held in Ashok Kumar Choudhary & ors. vs State of Bihar, A.I.R. 2008 Supreme Court 2436: 22
8. Insofar as the question of creditworthiness of the evidence of relatives of the victim is concerned, it is well settled that though the court has to scrutinise such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterised as an "interested" witness. It is trite that the term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive.
23. The Hon'ble Apex Court held in Ravishwar Manjhi & ors. vs. State of Jharkhand AIR 2009 SC page 1262:
30. Out of seven eyewitnesses, PW 7 was not believed by the courts below. PWs 4 and 5 were not present exactly at the place of occurrence. They are said to have witnessed only a part of the occurrence. All other eyewitnesses were related to the deceased.
However, we do not hesitate to add that only on that ground their evidences should not be disbelieved.
24. The learned Counsel for the applicant also contended that the remains of the bomb was sent for expert opinion. Therefore, the conviction of the appellant cannot be sustained. This submission of the learned Counsel for the appellant is not sustainable since the prosecution case is based on ocular evidence wherein the testimony of the two eye-witnesses whose presence at the place of occurrence is not doubted and whose testimony is found credible and cogent and is supported with medical evidence as well, therefore, not sending of remains of the 23 exploded bomb cannot be said fatal to the prosecution case. The Hon'ble Apex Court held in State of Punjab vrs. Hakam Singh, 2005 (7) SCC 408:
13. It was also pointed out by learned counsel for the respondent that no firearms were recovered and no seizure has been made of empties. It would have been better if this was done and it would have corroborated the prosecution story. Seizure of the firearms and recovering the empties and sending them for examination by the ballistic expert would have only corroborated the prosecution case but by not sending them to the ballistic expert in the present case is not fatal in view of the categorical testimony of PW 3 about the whole incident.
25. The submission of learned Counsel for the appellant that the ocular evidence is not corroborated with medical evidence as there is no injury on the chest of deceased in postmortem report is overruled because both the eye-witnesses have stated that deceased sustained injury on his chest the same is corroborated with the inquest report which is proved by P.W.5 Naresh Prasad Sinha Investigating Officer. Moreover, in the postmortem report is also shown that the ribs of the deceased had fractured on account splinter. The infra memorial region wherein the badly lacerated is shown is also closed to the chest. Moreover, if there is contradiction in medical and ocular evidence, the greater value should be given to the ocular evidence. There is nothing on record which rule out the ocular testimony in view of the postmortem report wherein the ribs which are the part of chest have been shown fractured on account of explosion of bomb. 24
The Hon'ble Apex Court held in Bhajan Singh @ Harbhajan Singh vs. State of Haryana A.I.R. 2011 S.C. page 2552:
38. Thus, the position of law in such a case of contradiction between medical and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.
26. The learned Counsel for the appellant has also stated that the prosecution sanction is not proved. On this ground the conviction of the appellant cannot be sustained for the offence under Section 3 of Explosive Substance Act. In this case the I.O. has proved the consent for the trial in his testimony as Ext.4. From perusal of Ext. 4, it is found that the consent for the trial was given by District Magistrate, Godda on 04.05.2010 which order No.14/2010 Office of District Magistrate, Godda. The District Magistrate has stated that he had perused the report of the Officer-in-Charge of Boarijor (Lalmatiya) P.S. Case No. 11 of 2010 dated 04.02.2020 and also concerned paper duly forwarded by Superintendent of Police, Godda containing nature of the offence alleged to have been committed by the accused persons Salauddin Ansari and Gulam Ansari and from the material on record, the prima facie case was made out and the Magistrate concerned was satisfied. Accordingly, the sanction was accorded.
Here it is also relevant to mention that Section 7 of the Explosive Substance Act only provides for the consent of the 25 District Magistrate for trial under Section 3 of Explosive Substance Act which reads as under:
Section 7- "No Court shall proceed to trial of any person for an offence against this act except with consent of District Magistrate."
As such in view of Section 7 of the Explosive Substance Act, 1908 it is the consent of the District Magistrate which is required before trial and the same was obtained by the I.O. as proved from Ext.4. Therefore, the conviction of the appellant for the offence under Section 3 of Explosive Substance Act as held by the trial court does not bear any infirmity.
27. Herein it would be pertinent to reproduce the provisions of Section 3 of Explosive Substance Act and Section 7 of the Explosive Substance Act.
Section-3 of Explosive Substance Act Punishment for causing explosion likely to endanger life or property.- Any person who unlawfully and maliciously causes by-
(a) any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with imprisonment for life, or with rigorous imprisonment of either description which shall not be less than ten years, and shall also be liable to fine,
(b) any special category explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with death, or rigorous imprisonment for life, and shall also be liable to fine.
Section 7 of Explosive Substance Act Restriction on trial of offences.--No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the 1[District Magistrate].
26
28. Herein it would be pertinent to reproduce the provisions of Section 300, 302 & 307 of I.P.C. as follows:
Section 300 IPC defines the act of murder Murder- "Except in the cases hereinafter, excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly,- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
302. Punishment for murder.--Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to fine.
Section 307 of I.P.C.
Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.-- 2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.] 27
31. From the prosecution evidence, the offence under Section 300 which is punishable under Section 302 of I.P.C. is made out as the throwing of the bomb which exploded was so imminently dangerous that it must in all probability would cause death shows the intention and knowledge of the appellant Salauddin Ansari for committing murder of deceased Haffizuddin Ansari. So far as the injury which the wife of deceased sustained though was not on the vital part, yet the act of the appellant- convict Salauddin Ansari throwing of the bomb which was so imminently dangerous shows his intention and knowledge to commit murder. Had the bomb hit on vital part of the wife of deceased it would have caused murder, though the wife of deceased sustained injury on her hands is also coupled with the intention of appellant-convict assaulting with the bomb indiscriminately which on account of explosion caused death of Haffizuddin and also caused injuries to the wife of deceased by use of the explosive substance i.e. bomb by the appellant unlawfully and maliciously. Further, from the evidence adduced on behalf of the prosecution, the ingredient of the charge for the offence under Section 3 of Explosive Substance Act is also made out.
32. The argument advanced by the learned Counsel for the appellant that the learned trial court though has convicted the appellant for the offence under Section 302 of I.P.C. but has given finding in regard to commission of the murder in furtherance of common intention; while the appellant was singally charge- 28 sheeted out of the 13 named accused in the F.I.R. and trial of the appellant was also proceeded after taking cognizance on the very charge-sheet. Rest of the accused were exonerated by the Investigating Officer during investigation.
33. This argument advanced by learned Counsel for the appellant is not tenable because from the perusal of the charge- sheet which was filed by the Investigating Officer before the Magistrate concerned, it is found that though the charge-sheet was filed against the appellant Saladuddin Ansari out of the 13 named accused in the F.I.R. yet the rest of the accused were not exonerated rather investigation against them was continued. In view of the same if the trial court has based his finding in regard to committing murder of the deceased by Salauddin in furtherance of common intention along with other co-accused same is not found bad.
34. It is also further pertinent to mention here though the finding is there basing on common intention yet the appellant Salauddin was convicted for the offence under Section 302 of I.P.C. and also under Section 3 of Explosive Substance Act.
35. The last but not least the argument advanced on behalf of the learned Counsel for the appellant is that the statement of the convict/appellant under Section 313 of Cr.P.C. is defective in which the question which was put up to the appellant/convict by the trial court pertaining to incriminating circumstance in the evidence against him is defective because the time of occurrence is shown morning while as per prosecution case and also the 29 evidence adduced on behalf of prosecution the time of occurrence is of 7 O'clock of evening. The trial court while putting to the question has shown the time of occurrence 7 O'clock of morning. It vitiates the trial and on the sole ground submitted to acquit the appellant from the charged framed against him. The learned Counsel for the appellant relied upon the following case law in support of his argument.
Maheshwar Tigga vrs. State of Jharkhand in Cr. Appeal No. 635 of 2020 (arising out of S.L.P. (Cr.) No.393 of 2020).
36. Prior to answer this argument advanced by the learned Court for the appellant, we avert to certain statutory provisions and also the legal propositions of law as laid down by the Hon'ble Apex Court which are reproduced here-in-below:
Section 313 of Cr.P.C. Power to examine the accused.-(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally on the case:
Provided that in a summons-case where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause
(b).
(2) No oath shall be administered to the accused when he is examined under sub-section(1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or 30 trial for, any other offence which such answers may tend to show he has committed.
[(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.] Section 461 of Cr.P.C.- Irregularities which vitiate proceedings.- If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely-
(a) attaches and sells property under Section 83;
(b) issues a search-warrant for a document, parcel or other thing in the custody of a postal or telegraph authority;
(c) demands security to keep the peace;
(d) demands security for good behavior;
(e) discharges a person lawfully bound to be of good behavior;
(f) cancels a bond to keep the peace;
(g) makes an order for maintenance;
(h) makes an order under section 133 as to a local nuisance;
(i) prohibits, under Section 143, the repetition or continuance of a public nuisasnce;
(j) makes an order under Part C or Part D of Chaper X;
(k) takes cognizance of an offence under clause (c) of sub-section (1) of section 190;
(l) tries an offender;
(m) tries an offender sumarrily;
(n) passes a sentence, under section 325, on proceedings recorded by another Magistrate;
(o) decides an appeal;
(p) calls, under Section 397 for proceedings; or
(q) receives an order passed under Section 446, his proceedings shall be void.
Section 465 of Cr.P.C.- Finding or sentence when reversible by reason of error, omission or irregularity.-
(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error; or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.31
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
37. The Hon'ble Apex Court held in Alister Anthony Pareira vs. State of Maharastra 2012 (1) SCC Cr. 953:
61. From the above, the legal position appears to be this: the accused must be apprised of incriminating evidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material.
Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by the prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law;
firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of the prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice.
38. The Hon'ble Apex Court held in Paramjeet Singh @ Pamma vs. State of Uttarakhand A.I.R. 2011 S.C. page 200:
24. If any appellate court or revisional court comes across the fact that the trial court had not put any question to an accused, even if it is of a vital nature, such an omission alone should not result in the setting aside of the conviction and sentence as an inevitable consequence. An inadequate examination cannot be presumed to have caused prejudice.
Every error or omission in compliance with the provisions of Section 313 CrPC, does not necessarily vitiate trial. Such errors fall 32 within the category of curable irregularities and the question as to whether the trial is vitiated, in each case depends upon the degree of error and upon whether prejudice has been or is likely to have been caused to the accused. Efforts should be made to undo or correct the lapse.
39. The Hon'ble Apex Court held in Liyakat & Ors. vs. State of Rajasthan 2015 (88) A.C.C. page 372
26. The decisions of this Court quoted hereinabove would show the consistent view that a defective examination of the accused under Section 313 Cr.P.C. does not by itself vitiate the trial. The accused must establish prejudice thereby caused to him. The onus is upon the accused to prove that by reason of his not having been examined as required by Section 313 he has been seriously prejudiced.
40. The learned Counsel for the appellant has contended that the trial court while putting incriminating circumstance in regard to commission of the alleged offence which came in evidence against him has asked the time of occurrence of morning in place of evening. This omission in the statement of the accused under Section 313 of Cr.P.C. is not such an omission which vitiates trial as there is nothing in Section 461 of Cr.P.C. wherein irregularities which vitiates proceeding are shown. This omission or irregularity is not shown under Section 461 of Cr.P.C. Further it is also pertinent to mention here that while this question was asked to the accused and time of occurrence was told of morning in place of evening, the same was not objected by the accused while answering the question although as per prosecution matrix and also the evidence adduced on behalf of prosecution the occurrence is of 7 33 O'clock of evening and the accused who is appellant-convict was also very much aware from the evidence adduced against him that the time of occurrence was evening.
41. The learned Counsel for the appellant could not show what failure of justice occasioned to appellant/convict on account of this omission in regard to time of occurrence in place of evening as morning.
42. Learned Counsel for the appellant could not show what prejudice was caused to the appellant from this omission in regard to time of occurrence as morning in place of evening. While the appellant/convict was thoroughly aware that the time of occurrence was evening and he in not raising of objection while answering the question No.1 put to the appellant/convict by the trial court under Section 313 of Cr.P.C. at the very time of recording statement of 313 of Cr.P.C. Therefore, this omission which has caused no failure of justice occasioned to the appellant/convict or prejudice to him the same cannot be the ground to alter the finding of learned trial court in conviction of the appellant/convict.
43. The burden of proof also lies upon the appellant to show what prejudice or what failure of justice was caused to the appellant/convict. This omission in regard to time of occurrence as morning in place of evening does not come in category of the irregularities, which vitiate trial in view of Section 461 of Cr.P.C.
44. From the statement of the accused/convict under Section 313 of Cr.P.C. it is found that all the incriminating 34 circumstance which was against him in the evidence adduced by the prosecution has been put to him to be explained by the accused.
45. In view of the above, re-appreciation of the evidence adduced on behalf of the prosecution as discussed hereinabove we are of considered view that the prosecution has been successful to prove its case beyond reasonable doubt and the impugned judgment of conviction and sentence passed by the trial court needs no interference and this appeal deserves to be dismissed.
46. Accordingly, this appeal is hereby dismissed. The impugned judgment of conviction and sentence passed by the trial court is confirmed. The Appellant is directed to serve out the sentence inflicted by court-below as he is in Jail. Let the trial court be certified in regard to this judgment along with LCR to ensure the compliance of conviction and sentence.
47. Pending interlocutory application(s), if any, also stands disposed of.
I agree (Sujit Narayan Prasad, J.)
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Jharkhand High Court, Ranchi
Dated the 17.07.2023
P.K.S./A.F.R.