DEATH REFERANCE No.10 OF 2007
STATE OF BIHAR--------------------------(Appellant)
Versus
SIKANDER ANSARI-----------------------(Respondents)
With
CR. APP (DB) No.1228 oF 2007
SIKANDER ANSARI————————–(Appellant)
Versus
STATE OF BIHAR————————-(Respondents)
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Reference made by Sri Umesh Chandra Mishra, Additional
Sessions Judge, Fast Track Court No-5, Rohtas at Sasaram
vide letter No.83 dated 05.09.2007 and appeal against
the judgment and order dated 30 th August, 2007 in
Sessions Trial No. 311 of 1999.
_____
Counsel for the appellant:- Mr. Amish Kumar, Advocate
Counsel for the State:- Mr. Ashwini Kumar, APP
_____
P R E S E N T
THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON’BLE MR. JUSTICE SYED MOHAMMAD MAHFOOZ ALAM
Shiva Kirti Singh, J. By the judgment
under appeal the learned Additional District &
Sessions Judge, FTC. No-5, Rohtas at Sasaram has
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convicted the sole appellant under Sections 302,
364,376 and 201 of the Indian Penal Code
(hereinafter referred to as IPC) and awarded death
sentence for the offence under Section 302 IPC and
in that view of the matter has not awarded any
separate sentence for the other offences. He has
also made a reference under Section 366 of the Code
of Criminal Procedure for confirmation of the death
penalty. The Reference and the Criminal Appeal
preferred by the appellant have been heard together
and will be governed by this common judgment.
2. In the night between 5 th and 6th March,
1999 a musical programme described as Chaita was
organized in Pathantoli of village, Koath, PS-
Dawath, District- Rohtas. The programme started at
about 10:00 P.M. near the house of the informant,
Abdul Bari Khan (PW-5) who is father of the
deceased girl, Guria aged about five years. There
was a gathering of about 60-70 persons, all of the
same village. At about 12:30 in the night the
informant went to sleep in his house. His daughter,
Guria went out to hear the programme and sat with
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women folk. At about 1:30 in the night a commotion
took place on account of crying sound of a child
from south of the house of a co-villager, Nanhak
Sao situated in the east of the village. Even on
search the informant could not locate his daughter.
The information regarding cries of the child was
given by Chandrama Yadav (PW-6). On this
information 8-10 villagers went towards the east
and near bushes they heard the crying sound and a
search started in and around the bushes. Allegedly,
the appellant Sikander Ansari stood up amongst the
bushes and threatened Chandrama Yadav to return
otherwise he will shoot him. On this, the villagers
fled away and the informant also came back to his
house. Thereafter with his family members and more
villagers he began a search but nothing could be
found. In the morning of 6.3.1999 from bushes
across the canal a pink half pant of his daughter
was found. Thereafter, the villagers came to know
that Sikander Ansari has lifted the deceased child.
Many persons of the village with a view to help the
informant went to the house of the appellant. There
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they met father of the appellant and enquired about
him and the missing child. The appellant’s father
gave a terse and laconic reply that “as you have
done so you will get, you may quarrel”.
3. It appears that on hearing rumours, in
the morning of 7.3.1999 at about 9:00 hours the
Officer Incharge of Dawath PS, Arun Kumar Kesari
(PW-8) reached the place of occurrence and recorded
the Fardbeyan of informant to the aforesaid effect.
On that basis the formal FIR of Dawath PS case
No.12 of 1999 was recorded at 14:30 hours and
investigation was conducted by PW-8, Officer
Incharge himself. On 7.3.1999 at 9:45 A.M. the I.O.
seized pink colour half pant of the victim girl and
prepared a seizure list (Exhibit-9) witnessed by
two persons including PW-4. On 8.3.1999 he seized a
blue colour small frock of the victim girl and
prepared another seizure list (Exhibit-9/1) which
was witnessed by the informant and another person.
He inspected the place of occurrence i.e. the place
where Chaita was being performed. The place was a
junction of main road and two galis. On the east of
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that place was the house of the informant
intervened by the house of one Shakeel Khan. Dead
body of the victim girl was found out at about 8:00
P.M. on 9.3.1999 at a distance of about 100 yards
from Pathantoli in a Government Baha (Water
Channel) in which there was some water. The dead
body was without clothes and smeared in mud. He
prepared inquest report (Exhibit-8) and sent the
body for post mortem examination. According to I.O.
the dead body showed blood coming out of the mouth
and also from the private parts and it appeared
that the girl had been killed by pressing of neck
after rape. After recording the statement of
witnesses and completing investigation the I.O.
submitted charge sheet against the appellant and
his father who has been ultimately acquitted by the
judgment under appeal.
4. After cognizance the case was
committed to the court of sessions. The appellant
and his father, the co-accused denied the charges
and faced trial wherein the appellant has been
convicted and sentenced to death, as noted earlier.
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Although, the defence has not examined any witness
nor filed any documentary evidence, from the trend
of cross-examination and arguments the defence plea
appears to be of false implication.
5. The prosecution in order to prove the
charges has examined altogether eight witnesses.
PW-1, Vijay Kumar Singh @ Vijay Kumar was examined
under Section 164 Cr.P.C. also. He is a co-
villager of the informant and has deposed that
after the Chaita programme was over at about 1:30
in the night, Chandrama (PW-6) went towards his
house and came back within ten minutes and reported
that from the bushes sound of crying was audible.
This witness along with about 10 others went that
side and heard sound of crying. They found a pant
there. A boy informed that he saw a person in the
bushes. This witness in course of search heard a
sound coming from the side of bushes threatening
Chandrama to run away otherwise he would be shot.
He and others could make out that the voice was of
the appellant, Sikander. However, they had to
retreat. In cross-examination the attention of this
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witness was drawn to some of his statements before
the I.O. and the I.O. has stated in paragraph-28
that this witness had not disclosed to him about
the threatening sound from the bushes that
Chandrama should run away otherwise he will be shot
or that the voice appeared to be of Sikander or
that a boy had claimed to have seen a person in the
bushes.
6. PW-2, Ranjeet Singh is a hearsay witness. He has claimed that in the morning he
heard about the occurrence from one Ajay Chaudhary
that Sikander Ansari had taken Guria in the bushes
and when Ajay Singh, Vijay Singh, Chandrama Singh
and others went in search then in the torch light
they had seen Sikander Ansari with Guria in the
bushes and Guria was crying and Sikander threatened
Chandrama to run away otherwise he would start
shooting. The villagers came back due to fear. He
has disclosed that during search the pant and frock
of the girl was found and it had blood marks. He is
a witness of the seizure of frock. He has claimed
that he had gone with villagers to the house of the
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appellant. He first said that Sikander Ansari and
his father were there and Sikander Ansari said -“as
you have done so you have received” but he
corrected himself and said that this was spoken by
father of Siakander. He has also deposed that dead
body of Guria was found in the Baha. He identified
the appellant as well as the other accused, Jiru
Ansari, father of the appellant in dock. In cross-
examination his attention was drawn to his earlier
statement before the I.O. and the I.O. has stated
in Paragraph-29 that this witness had not stated to
him that dead body of Guria was found in Baha. From
the statement of this witness in cross-examination
it appears that he does not have good sense of date
and time and has claimed that Sub Inspector of
Police had arrived in the village in the night of
occurrence itself. Hwever, he has further stated in
the next paragraph that he met the Sub Inspector of
Police again after 4-5 days from the date of
occurrence.
7. PW-3, Abdul Ahad Khan is also a
hearsay witness who has corroborated the
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prosecution story that the daughter of the
informant disappeared in the night of 5.3.1999. In
the morning the informant had come to his house and
disclosed that the appellant had abducted his
daughter while chaita was performed near his house.
He was also told about crying sound of the child in
the bushes where the appellant was seen in the
light of torch and he had threatened the persons
present there to run away otherwise he would shoot
them. He has also deposed that some persons went to
the house of the appellant where his father, Jiru
Ansari informed them that the appellant was not
there and also gave a reply that as they had done
so they will get. He has disclosed that during
search the pant and frock of the victim girl were
found and on 9.3.1999 they saw brother and brother-
in-law of Jiru Ansari near the Government Baha.
They became suspicious and on further search they
found the dead body of the girl in the mud of that
Baha. He is a witness on the inquest. Although his
attention was drawn to several statements made
before the I.O. but no contradiction was obtained
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from the I.O. (PW-8).
8. PW-4, Sarfaraz Ahmad Khan is a formal
witness. He has proved his signature as Exhibit-2
on the seizure list relating to half pant of the
victim girl.
9. P.W.5, Abdul Bari Khan is the informant. He has proved his signature on the
fardbeyan (Exhibit-3). He has disclosed that when
he went with Chandrama he heard his girl’s voice
coming from the bushes but from a distance the
appellant threatened from the bushed to return
otherwise he will shoot. Then they came back. Again
thereafter he and others went in search towards
east for a long distance but could not find anyone.
In the morning Chandrama informed him that he had
seen the appellant with Guria in the bushes. They
made search for the missing girl for some days. On
4th day the dead body of the girl was found in the
Baha. Her frock was also found from a ditch. Her
pink coloured half pant was also found and the
clothes had been seized by the police. He has
identified his signature on both the seizure lists
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which have been marked as Exhibit-1/1 and 2/1. He
could not know the reason for the occurrence. His
attention has been drawn to his earlier statement
before the police but no contradictions have been
obtained from the I.O.
10. PW-6, Chandrama Yadav has fully
supported the prosecution case relating to hearing
of cries of a child from the bushes by him. He went
back with 10 persons toward bushes and started
searching with a torch but in the mean time
appellant came out of the bushes and threatened him
to shoot and then they fled away. Again they went
with 15-20 persons but they did not find the
appellant or the missing girl in the bushes. The
pink coloured half pant of the girl was recovered
near the bushes. After three days the dead body of
the girl was recovered from a Nala on the north of
the village. He has alleged that the appellant
committed rape and murder of the girl. He has
identified the appellant. He has claimed in cross-
examination that he had disclosed to the I.O. that
Chaita was being performed near the house of the
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informant and he had a three cell torch with which
he was searching in the bushes but he did not give
that torch to the I.O. His attention was drawn to
his earlier statement before the I.O. but no
contradiction has been obtained from the I.O.
Nothing worthwhile has been elicited in the cross-
examination of this material witness. He has denied
that there was any enmity on account of any land
etc with the appellant.
11. PW-7 is the doctor, Shankar Kumar
Jha. He conducted autopsy on the dead body of Guria
aged about 5 years on 10.3.1999 at 11:45 A.M. He
found the whole body swollen, decomposed, fowl
smelling and soiled with mud. He found that skin
had peeled off over whole body. The mouth was open
with tongue protruding and the eyes were open with
bulging of eye balls. Blood clots were seen over
the vaginal orifice and perineal region. Vulva
found swollen. There was no ligature mark over
neck. He found (i) lacerated wound 2″X ½” X ¼” on
posterior vaginal wall extending up to perineum
just above anal orifice, (ii) Anterior vaginal wall
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also found lacerated (iii) hymen found ruptured,
blood clot present in vaginal canal and the
perineal region. On dissection of thorax he found
hametoma in subtutaneous tissues and muscles with
laceration of muscles over 3rd, 4th and 5th inter
costal space of chest on right onterior side. 3rd,
4th and 5th ribs were found fractured anteriarly on
the same side. Right lung was lacerated. Blood clot
was present in right thoracic cavity. On dissection
of abdomen, abdominal cavity was found filled with
blood, liver found ruptured and blackish. Stomach
contained undigested food including rice. Small
intestine was ecchymosed and contained fluid and
gas.
All the injuries were ante mortem and caused by
hard and blunt substant. Time since death was 3
to 5 days. He found the injuries as cause of
death. On account of finding over genital
organ, there was possibility of rape. There is
nothing material in the cross examination of
PW-7.
12. PW-8, Arun Kumar Kesari, as noted
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earlier is the Investigating officer. He has
deposed that the fardbeyan of the informant is in
his writing. He has proved the fardbeyan as
Exhibit-5, his endorsement thereupon as Exhibit-6
and the formal FIR as Exhibit-7. As noted earlier
he has deposed regarding recovery of the dead body
and other materials, and preparation of the inquest
report (Exhibit-8) by him. He has also proved the
seizure list. He has deposed that he recorded the
statement of witnesses during investigation and got
the statements of PW-1 and 6 recorded under Section
164 of the Code of Criminal Procedure. He has
deposed in cross-examination that he went to the
place of occurrence on hearing rumour. He has also
deposed that it took two days to search and locate
the dead body. He had got the autopsy done by
doctor. The statements of PW-1 and 6 under Section
164 of the Code of Criminal Procedure are also on
record and they disclose and corroborate that on
hearing the cries of a child from the bushes some
of the witnesses and co-villagers had gone in
search and the appellant was seen in the bushes and
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he threatened Chandrama to return otherwise he
would shoot.
13. On behalf of the appellant it has
been argued that the prosecution case is doubtful
because of delay of about 24 hours in reporting the
matter to the police. It was further submitted that
identification by PW-6 in the light of torch and
identification by PW-1 by voice is not believable.
It was further argued that there is no direct
evidence in respect of charges because there is no
eyewitness to claim that this appellant had
committed rape and then murdered the victim girl.
It was also argued that according to PW-1 a boy had
claimed to have seen a person in the bushes but he
has not been examined and according to the I.O. a
Chaukidar was present when the I.O. went to the
place of occurrence and effected seizure of clothes
but the said Chaukidar has also not been examined.
It was also suggested that the informant is guilty
of making some exaggerations in court by claiming
that he was also with Chandrama and heard sound of
crying of child coming from bushes; therefore the
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informant should be disbelieved.
14. No doubt, there is no eyewitness in
this case in respect of either rape or murder by
the appellant. However, the evidence on record
shows that soon after the deceased girl disappeared
in the village, cries of a child were heard coming
out from bushes at some distance. At least PW-1 and
6 have corroborated the prosecution case that this
appellant threatened PW-6 to return or else he
would shoot him and the voice of the appellant was
identified by PW-1 who was also engaged in search
in the near vicinity around the bushes. There is no
dispute that witnesses are co-villagers and they
are capable of identifying the appellant by face as
well as by voice.
15. From the evidence of large number of
prosecution witnesses it is clear that in the next
morning when some persons of the village went to
enquire about the missing girl at the house of the
appellant, he was not there and no satisfactory
explanation for his absence was given by his father
who was also tried with the appellant but has been
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acquitted of the charges under Section 120B of the
IPC. Some confusion has been created by hearsay
witness PW-2 but on a careful reading of his
evidence it is clear that he is not reliable on the
point of his claim that he had also accompanied the
co-villagers to the house of the appellant in the
next morning. First he replied that on queries the
appellant gave a reply but he corrected himself
immediately and then claimed that appellant’s
father had given a reply that as they had done so
they would receive.
16. From the recovery of the clothes of
the deceased and her dead body from places within
the village it is further clear that the offence
was committed by a resident of that village only.
17. There is no explanation from the
defence which could show either that the appellant
was not present in the village on the night of the
occurrence or that he had not disappeared from the
village soon after occurrence. There is no material
to show any enmity on account of which the
appellant could be falsely implicated in such a
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heinous crime. Lastly, there is no good reason to
disbelieve the prosecution case particularly the
evidence of PW-1 and 6 which clearly show the
involvement of the appellant in the crime. These
witnesses had disclosed their version to the co-
villagers who have corroborated the same as hearsay
witnesses and they had also deposed accordingly
before the Investigating Officer as well as in
their statements recorded under Section 164 of the
Code of Criminal Procedure.
18. The submissions advanced on behalf of
the defence that a boy mentioned by PW-1 and a
Chaukidar mentioned by the I.O. ought to have been
examined as witnesses is found to be without any
substance. It is not the case of PW-1 that the boy
named the appellant. It is only claimed that the
boy saw a person in the bushes. So far as Chaukidar
is concerned, he was merely accompanying the I.O.
during investigation and as disclosed by the I.O.
Chaukidar’s statement was never recorded under
Section 161 of the Code of Criminal Procedure.
Hence, Chaukidar was not at all a witness of any
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material facts and not required to be examined by
the prosecution. The exaggerations alleged against
the informant, in the facts of the case are also of
no consequence. The witnesses are rustic villagers
and the informant in particular had suffered severe
trauma on account of a heinous crime against his
five years old daughter. Hence, such witnesses
cannot be expected to recall each and every
incident in detail or to give exactly similar
version of the occurrence. The material aspects of
the case have been deposed by the witnesses
including the informant in a reliable manner. They
have not made any false claim of posing to be
eyewitnesses. Since there is no enmity between the
appellant and the informant and other witnesses,
there is not reason why they would depose falsely
against him. The witnesses are therefore found
reliable and trustworthy. The delay of one day in
lodging the FIR stands explained by the nature and
circumstances of the case. The shocked father of
the victim girl was bound to disbelieve the ill
fate of the victim till all hopes of her safe
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return vanished.
19. In view of the aforesaid discussions
and findings I am of the considered opinion that
the trial court has rightly found the charges
proved against the appellant beyond any reasonable
doubts.
20. Coming to the question of sentence,
it is noticed that the appellant was aged about 27
years at the time of alleged occurrence and
although it is established by circumstantial
evidence as discussed above that he was the person
involved with the offence, the lack of any direct
evidence persuades me not to opt for the extreme
penalty of death sentence. The offence was barbaric
and against a hapless child but without
premeditation and any motive because the
prosecution has also denied any previous enmity.
There is nothing on record to show that the
appellant is incapable of reform in future. Hence,
Considering the aforesaid aspects, I am not
inclined to award death sentence to the appellant.
21. In the facts of the case, following
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the Supreme Court judgment in the case of Swami
Shraddanand @ Murali Manohar Mishra Vs. State of
Karnataka, J.T. 2008 (8) SC 27, I direct that the
appellant shall not be released from prison till he
completes 20 years of actual imprisonment. The
reference is answered in negative. The appeal is
dismissed with the aforesaid modification in
sentence.
(Shiva Kirti Singh, J)
(S.M. Mahfooz Alam,J)
(S.M. Mahfooz Alam,J)
Patna High Court
Date the….September, 2008
NAFR/PERWEZ
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