{"id":111906,"date":"2008-09-11T00:00:00","date_gmt":"2008-09-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sikander-ansari-vs-state-of-bihar-on-11-september-2008"},"modified":"2016-08-26T00:36:20","modified_gmt":"2016-08-25T19:06:20","slug":"sikander-ansari-vs-state-of-bihar-on-11-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sikander-ansari-vs-state-of-bihar-on-11-september-2008","title":{"rendered":"Sikander Ansari vs State Of Bihar on 11 September, 2008"},"content":{"rendered":"
Patna High Court<\/div>\n
Sikander Ansari vs State Of Bihar on 11 September, 2008<\/div>\n
Author: Shiva Kirti Singh<\/div>\n
               DEATH REFERANCE No.10 OF 2007\n\n\n\n  STATE OF BIHAR--------------------------(Appellant)\n                         Versus\n  SIKANDER ANSARI-----------------------(Respondents)<\/pre>\n
                          With
\n             CR. APP (DB) No.1228 oF 2007
\n  SIKANDER ANSARI————————–(Appellant)
\n                         Versus
\n  STATE OF BIHAR————————-(Respondents)
\n                         _____<\/p>\n
Reference made by Sri Umesh Chandra Mishra, Additional
\nSessions Judge, Fast Track Court No-5, Rohtas at Sasaram
\nvide letter No.83 dated 05.09.2007 and appeal against
\nthe judgment and order dated 30 th August, 2007 in
\nSessions Trial No. 311 of 1999.\n<\/p>\n
                          _____<\/p>\n
  Counsel for the appellant:- Mr. Amish Kumar, Advocate
\n  Counsel for the State:-      Mr. Ashwini Kumar, APP
\n                         _____<\/p>\n
                         P R E S E N T<\/p>\n
       THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
\n   THE HON’BLE MR. JUSTICE SYED MOHAMMAD MAHFOOZ ALAM<\/p>\n
                 Shiva    Kirti   Singh,    J.   By     the   judgment<\/p>\n
       under   appeal    the   learned     Additional    District    &<\/p>\n
       Sessions Judge, FTC. No-5, Rohtas at Sasaram                 has
\n                                2<\/span><\/p>\n
convicted    the        sole       appellant       under    Sections       302,<\/p>\n
364,376     and         201        of     the      Indian        Penal     Code<\/p>\n
(hereinafter referred to as IPC) and awarded death<\/p>\n
sentence for the offence under Section 302 IPC and<\/p>\n
in   that   view       of     the       matter    has    not     awarded   any<\/p>\n
separate sentence for the other offences. He has<\/p>\n
also made a reference under Section 366 of the Code<\/p>\n
of Criminal Procedure for confirmation of the death<\/p>\n
penalty.    The        Reference          and     the    Criminal        Appeal<\/p>\n
preferred by the appellant have been heard together<\/p>\n
and will be governed by this common judgment.<\/p>\n
            2.        In the night between 5 th and 6th March,<\/p>\n
1999 a musical programme described as Chaita was<\/p>\n
organized        in    Pathantoli          of     village,       Koath,     PS-<\/p>\n
Dawath, District- Rohtas. The programme started at<\/p>\n
about 10:00 P.M. near the house of the informant,<\/p>\n
Abdul     Bari        Khan     (PW-5)       who     is     father    of    the<\/p>\n
deceased girl, Guria aged about five years. There<\/p>\n
was a gathering of about 60-70 persons, all of the<\/p>\n
same    village.        At     about       12:30    in     the    night    the<\/p>\n
informant went to sleep in his house. His daughter,<\/p>\n
Guria went out to hear the programme and sat with
\n                          3<\/span><\/p>\n
women folk. At about 1:30 in the night a commotion<\/p>\n
took place on account of crying sound of a child<\/p>\n
from south of the house of a co-villager, Nanhak<\/p>\n
Sao situated in the east of the village. Even on<\/p>\n
search the informant could not locate his daughter.<\/p>\n
The information regarding cries of the child was<\/p>\n
given    by     Chandrama       Yadav     (PW-6).      On     this<\/p>\n
information    8-10    villagers      went   towards    the   east<\/p>\n
and near bushes they heard the crying sound and a<\/p>\n
search started in and around the bushes. Allegedly,<\/p>\n
the appellant Sikander Ansari stood up amongst the<\/p>\n
bushes   and   threatened       Chandrama    Yadav     to   return<\/p>\n
otherwise he will shoot him. On this, the villagers<\/p>\n
fled away and the informant also came back to his<\/p>\n
house.   Thereafter with his family members and more<\/p>\n
villagers he began a search but nothing could be<\/p>\n
found.   In    the    morning    of     6.3.1999   from     bushes<\/p>\n
across the canal a pink half pant of his daughter<\/p>\n
was found. Thereafter, the villagers came to know<\/p>\n
that Sikander Ansari has lifted the deceased child.<\/p>\n
Many persons of the village with a view to help the<\/p>\n
informant went to the house of the appellant. There
\n                                 4<\/span><\/p>\n
they met father of the appellant and enquired about<\/p>\n
him and the missing child. The appellant’s father<\/p>\n
gave a terse and laconic reply that “as you have<\/p>\n
done so you will get, you may quarrel”.<\/p>\n
              3.    It appears that on hearing rumours, in<\/p>\n
the morning of 7.3.1999 at about 9:00 hours the<\/p>\n
Officer Incharge of Dawath PS, Arun Kumar Kesari<\/p>\n
(PW-8) reached the place of occurrence and recorded<\/p>\n
the Fardbeyan of informant to the aforesaid effect.<\/p>\n
On   that     basis      the    formal      FIR    of    Dawath    PS    case<\/p>\n
No.12    of       1999    was       recorded      at    14:30    hours    and<\/p>\n
investigation            was        conducted      by     PW-8,    Officer<\/p>\n
Incharge himself. On 7.3.1999 at 9:45 A.M. the I.O.<\/p>\n
seized pink colour half pant of the victim girl and<\/p>\n
prepared      a    seizure          list   (Exhibit-9)      witnessed      by<\/p>\n
two persons including PW-4. On 8.3.1999 he seized a<\/p>\n
blue    colour      small       frock      of   the     victim    girl    and<\/p>\n
prepared another seizure list (Exhibit-9\/1) which<\/p>\n
was witnessed by the informant and another person.<\/p>\n
He inspected the place of occurrence i.e. the place<\/p>\n
where Chaita          was being performed. The place was a<\/p>\n
junction of main road and two galis. On the east of
\n                                5<\/span><\/p>\n
that    place          was     the       house     of     the     informant<\/p>\n
intervened by the house of one Shakeel Khan. Dead<\/p>\n
body of the victim girl was found out at about 8:00<\/p>\n
P.M. on 9.3.1999 at a distance of about 100 yards<\/p>\n
from    Pathantoli           in      a    Government        Baha     (Water<\/p>\n
Channel) in which there was some water. The dead<\/p>\n
body was without clothes and smeared in mud. He<\/p>\n
prepared    inquest          report       (Exhibit-8)       and    sent    the<\/p>\n
body for post mortem examination. According to I.O.<\/p>\n
the dead body showed blood coming out of the mouth<\/p>\n
and also from the              private parts and it appeared<\/p>\n
that the girl had been killed by pressing of neck<\/p>\n
after    rape.         After       recording        the     statement      of<\/p>\n
witnesses        and    completing          investigation         the     I.O.<\/p>\n
submitted      charge        sheet       against    the    appellant       and<\/p>\n
his father who has been ultimately acquitted by the<\/p>\n
judgment under appeal.\n<\/p>\n
            4.           After       cognizance           the     case    was<\/p>\n
committed to the court of sessions. The appellant<\/p>\n
and his father, the co-accused denied the charges<\/p>\n
and    faced     trial       wherein       the     appellant      has     been<\/p>\n
convicted and sentenced to death, as noted earlier.
\n                             6<\/span><\/p>\n
Although, the defence has not examined any witness<\/p>\n
nor filed any documentary evidence, from the trend<\/p>\n
of cross-examination and arguments the defence plea<\/p>\n
appears to be of false implication.\n<\/p>\n
              5.   The prosecution in order to prove the<\/p>\n
charges      has   examined     altogether     eight      witnesses.<\/p>\n
PW-1, Vijay Kumar Singh @ Vijay Kumar was examined<\/p>\n
under       Section   164   Cr.P.C.    also.        He    is    a    co-<\/p>\n
villager      of   the    informant    and    has     deposed        that<\/p>\n
after the Chaita programme was over at about 1:30<\/p>\n
in    the    night,   Chandrama      (PW-6)    went      towards     his<\/p>\n
house and came back within ten minutes and reported<\/p>\n
that from the bushes sound of crying was audible.<\/p>\n
This witness along with about 10 others went that<\/p>\n
side and heard sound of crying. They found a pant<\/p>\n
there. A boy informed that he saw a person in the<\/p>\n
bushes. This witness in course of search heard a<\/p>\n
sound coming from the side of bushes threatening<\/p>\n
Chandrama to run away otherwise he would be shot.<\/p>\n
He and others could make out that the voice was of<\/p>\n
the     appellant,       Sikander.    However,        they     had    to<\/p>\n
retreat. In cross-examination the attention of this
\n                            7<\/span><\/p>\n
witness was drawn to some of his statements before<\/p>\n
the I.O. and the I.O. has stated in paragraph-28<\/p>\n
that this witness had not disclosed to him about<\/p>\n
the   threatening         sound     from     the        bushes   that<\/p>\n
Chandrama should run away otherwise he will be shot<\/p>\n
or that the voice appeared to be of Sikander or<\/p>\n
that a boy had claimed to have seen a person in the<\/p>\n
bushes.\n<\/p>\n
            6.     PW-2,       Ranjeet     Singh    is    a   hearsay\n\nwitness.    He    has    claimed    that    in     the    morning   he\n\n<\/pre>\n
heard about the occurrence from one Ajay Chaudhary<\/p>\n
that Sikander Ansari had taken Guria in the bushes<\/p>\n
and when Ajay Singh, Vijay Singh, Chandrama Singh<\/p>\n
and others went in search then in the torch light<\/p>\n
they had seen Sikander Ansari with Guria in the<\/p>\n
bushes and Guria was crying and Sikander threatened<\/p>\n
Chandrama    to    run    away     otherwise       he    would   start<\/p>\n
shooting. The villagers came back due to fear. He<\/p>\n
has disclosed that during search the pant and frock<\/p>\n
of the girl was found and it had blood marks. He is<\/p>\n
a witness of the seizure of frock. He has claimed<\/p>\n
that he had gone with villagers to the house of the
\n                               8<\/span><\/p>\n
appellant. He first said that Sikander Ansari and<\/p>\n
his father were there and Sikander Ansari said -“as<\/p>\n
you   have        done   so       you     have    received”     but    he<\/p>\n
corrected himself and said that this was spoken by<\/p>\n
father of Siakander. He has also deposed that dead<\/p>\n
body of Guria was found in the Baha. He identified<\/p>\n
the appellant as well as the other accused, Jiru<\/p>\n
Ansari, father of the appellant in dock. In cross-<\/p>\n
examination his attention was drawn to his earlier<\/p>\n
statement before the I.O. and the I.O. has stated<\/p>\n
in Paragraph-29 that this witness had not stated to<\/p>\n
him that dead body of Guria was found in Baha. From<\/p>\n
the statement of this witness in cross-examination<\/p>\n
it appears that he does not have good sense of date<\/p>\n
and   time    and    has      claimed      that    Sub    Inspector    of<\/p>\n
Police had arrived in the village in the night of<\/p>\n
occurrence itself. Hwever, he has further stated in<\/p>\n
the next paragraph that he met the Sub Inspector of<\/p>\n
Police    again      after        4-5     days    from    the   date    of<\/p>\n
occurrence.\n<\/p>\n
             7.      PW-3,        Abdul    Ahad    Khan    is   also    a\n\nhearsay       witness         who         has     corroborated         the\n                               9<\/span>\n\n\n\n\nprosecution         story         that        the     daughter       of     the\n\n<\/pre>\n
informant disappeared in the night of 5.3.1999. In<\/p>\n
the morning the informant had come to his house and<\/p>\n
disclosed       that     the        appellant         had    abducted       his<\/p>\n
daughter while chaita was performed near his house.<\/p>\n
He was also told about crying sound of the child in<\/p>\n
the    bushes    where        the      appellant       was   seen     in    the<\/p>\n
light of torch and he had threatened the persons<\/p>\n
present there to run away otherwise he would shoot<\/p>\n
them. He has also deposed that some persons went to<\/p>\n
the house of the appellant where his father, Jiru<\/p>\n
Ansari   informed        them          that   the   appellant        was    not<\/p>\n
there and also gave a reply that as they had done<\/p>\n
so    they   will      get.       He    has    disclosed      that    during<\/p>\n
search the pant and frock of the victim girl were<\/p>\n
found and on 9.3.1999 they saw brother and brother-<\/p>\n
in-law   of     Jiru    Ansari          near    the    Government         Baha.<\/p>\n
They became suspicious and on further search they<\/p>\n
found the dead body of the girl in the mud of that<\/p>\n
Baha. He is a witness on the inquest. Although his<\/p>\n
attention       was    drawn           to   several     statements         made<\/p>\n
before the I.O. but no contradiction was obtained
\n                               10<\/span><\/p>\n
from the I.O. (PW-8).\n<\/p>\n
            8.     PW-4, Sarfaraz Ahmad Khan is a formal<\/p>\n
witness. He has proved his signature as Exhibit-2<\/p>\n
on the seizure list relating to half pant of the<\/p>\n
victim girl.\n<\/p>\n
            9.        P.W.5,       Abdul       Bari      Khan        is    the\n\ninformant.        He    has    proved        his   signature         on    the\n\n<\/pre>\n
fardbeyan (Exhibit-3). He has disclosed that when<\/p>\n
he went with Chandrama he heard his girl’s voice<\/p>\n
coming    from     the       bushes    but     from     a    distance      the<\/p>\n
appellant        threatened        from      the   bushed       to    return<\/p>\n
otherwise he will shoot. Then they came back. Again<\/p>\n
thereafter       he    and     others      went    in   search       towards<\/p>\n
east for a long distance but could not find anyone.<\/p>\n
In the morning Chandrama informed him that he had<\/p>\n
seen the appellant with Guria in the bushes. They<\/p>\n
made search for the missing girl for some days. On<\/p>\n
4th day the dead body of the girl was found in the<\/p>\n
Baha. Her frock was also found from a ditch. Her<\/p>\n
pink   coloured        half     pant    was     also        found    and   the<\/p>\n
clothes    had        been    seized      by   the      police.       He   has<\/p>\n
identified his signature on both the seizure lists
\n                                 11<\/span><\/p>\n
which have been marked as Exhibit-1\/1 and 2\/1. He<\/p>\n
could not know the reason for the occurrence. His<\/p>\n
attention has been drawn to his earlier statement<\/p>\n
before the police but no contradictions have been<\/p>\n
obtained from the I.O.\n<\/p>\n
            10.        PW-6,          Chandrama         Yadav    has     fully<\/p>\n
supported the prosecution case relating to hearing<\/p>\n
of cries of a child from the bushes by him. He went<\/p>\n
back   with     10     persons         toward      bushes       and    started<\/p>\n
searching       with      a     torch      but     in     the    mean       time<\/p>\n
appellant came out of the bushes and threatened him<\/p>\n
to shoot and then they fled away. Again they went<\/p>\n
with    15-20     persons            but   they    did     not    find       the<\/p>\n
appellant or the missing girl in the bushes. The<\/p>\n
pink coloured half pant of the girl was recovered<\/p>\n
near the bushes. After three days the dead body of<\/p>\n
the girl was recovered from a Nala on the north of<\/p>\n
the    village.      He       has     alleged      that    the    appellant<\/p>\n
committed     rape        and        murder   of    the     girl.      He    has<\/p>\n
identified the appellant. He has claimed in cross-<\/p>\n
examination that he had disclosed to the I.O. that<\/p>\n
Chaita was being performed near the house of the
\n                             12<\/span><\/p>\n
informant and he had a three cell torch with which<\/p>\n
he was searching in the bushes but he did not give<\/p>\n
that torch to the I.O. His attention was drawn to<\/p>\n
his     earlier     statement       before      the       I.O.    but     no<\/p>\n
contradiction        has    been        obtained      from       the    I.O.<\/p>\n
Nothing worthwhile has been elicited in the cross-<\/p>\n
examination of this material witness. He has denied<\/p>\n
that there was any enmity on account of any land<\/p>\n
etc with the appellant.\n<\/p>\n
            11.      PW-7     is    the    doctor,     Shankar         Kumar<\/p>\n
Jha. He conducted autopsy on the dead body of Guria<\/p>\n
aged about 5 years on 10.3.1999 at 11:45 A.M. He<\/p>\n
found     the     whole    body     swollen,       decomposed,          fowl<\/p>\n
smelling and soiled with mud. He found that skin<\/p>\n
had peeled off over whole body.                 The mouth was open<\/p>\n
with tongue protruding and the eyes were open with<\/p>\n
bulging of eye balls. Blood clots were seen over<\/p>\n
the     vaginal     orifice       and     perineal     region.         Vulva<\/p>\n
found    swollen.     There        was    no   ligature      mark       over<\/p>\n
neck. He found (i) lacerated wound 2″X \u00bd” X \u00bc” on<\/p>\n
posterior       vaginal     wall    extending        up    to     perineum<\/p>\n
just above anal orifice, (ii) Anterior vaginal wall
\n                               13<\/span><\/p>\n
also    found    lacerated         (iii)     hymen   found      ruptured,<\/p>\n
blood    clot         present      in     vaginal    canal      and    the<\/p>\n
perineal region. On dissection of thorax he found<\/p>\n
hametoma in subtutaneous tissues and muscles with<\/p>\n
laceration of muscles over                   3rd, 4th and 5th inter<\/p>\n
costal space of chest on right onterior side. 3rd,<\/p>\n
4th and 5th ribs were found fractured anteriarly on<\/p>\n
the same side. Right lung was lacerated. Blood clot<\/p>\n
was present in right thoracic cavity. On dissection<\/p>\n
of abdomen, abdominal cavity was found filled with<\/p>\n
blood, liver found ruptured and blackish. Stomach<\/p>\n
contained       undigested         food      including    rice.       Small<\/p>\n
intestine       was       ecchymosed     and   contained     fluid     and<\/p>\n
gas.\n<\/p>\n
       All the injuries were ante mortem and caused by<\/p>\n
       hard and blunt substant. Time since death was 3<\/p>\n
       to 5 days. He found the injuries as cause of<\/p>\n
       death.        On    account      of   finding     over     genital<\/p>\n
       organ, there was possibility of rape. There is<\/p>\n
       nothing material in the cross examination of<\/p>\n
       PW-7.\n<\/p>\n
               12.        PW-8, Arun Kumar Kesari, as noted
\n                               14<\/span><\/p>\n
earlier      is    the     Investigating           officer.   He     has<\/p>\n
deposed that the fardbeyan                  of the informant is in<\/p>\n
his    writing.       He      has    proved     the    fardbeyan      as<\/p>\n
Exhibit-5, his endorsement thereupon as Exhibit-6<\/p>\n
and the formal FIR as Exhibit-7. As noted earlier<\/p>\n
he has deposed regarding recovery of the dead body<\/p>\n
and other materials, and preparation of the inquest<\/p>\n
report (Exhibit-8) by him. He has also proved the<\/p>\n
seizure list. He has deposed that he recorded the<\/p>\n
statement of witnesses during investigation and got<\/p>\n
the statements of PW-1 and 6 recorded under Section<\/p>\n
164   of     the   Code       of    Criminal   Procedure.      He    has<\/p>\n
deposed in cross-examination that he went to the<\/p>\n
place of occurrence on hearing rumour. He has also<\/p>\n
deposed that it took two days to search and locate<\/p>\n
the   dead    body.      He    had    got    the    autopsy   done   by<\/p>\n
doctor. The statements of PW-1 and 6 under Section<\/p>\n
164 of the Code of Criminal Procedure are also on<\/p>\n
record and they disclose and corroborate that on<\/p>\n
hearing the cries of a child from the bushes some<\/p>\n
of    the    witnesses        and    co-villagers      had    gone    in<\/p>\n
search and the appellant was seen in the bushes and
\n                         15<\/span><\/p>\n
he   threatened      Chandrama    to    return    otherwise   he<\/p>\n
would shoot.\n<\/p>\n
           13.      On behalf of the appellant it has<\/p>\n
been argued that the prosecution case is doubtful<\/p>\n
because of delay of about 24 hours in reporting the<\/p>\n
matter to the police. It was further submitted that<\/p>\n
identification by PW-6 in the light of torch and<\/p>\n
identification by PW-1 by voice is not believable.<\/p>\n
It   was   further    argued     that   there    is   no   direct<\/p>\n
evidence in respect of charges because there is no<\/p>\n
eyewitness     to     claim    that     this     appellant    had<\/p>\n
committed rape and then murdered the victim girl.<\/p>\n
It was also argued that according to PW-1 a boy had<\/p>\n
claimed to have seen a person in the bushes but he<\/p>\n
has not been examined and according to the I.O. a<\/p>\n
Chaukidar was present when the I.O. went to the<\/p>\n
place of occurrence and effected seizure of clothes<\/p>\n
but the said Chaukidar has also not been examined.<\/p>\n
It was also suggested that the informant is guilty<\/p>\n
of making some exaggerations in court by claiming<\/p>\n
that he was also with Chandrama and heard sound of<\/p>\n
crying of child coming from bushes; therefore the
\n                           16<\/span><\/p>\n
informant should be disbelieved.\n<\/p>\n
            14.    No doubt, there is no eyewitness in<\/p>\n
this case in respect of either rape or murder by<\/p>\n
the   appellant.     However,         the   evidence    on    record<\/p>\n
shows that soon after the deceased girl disappeared<\/p>\n
in the village, cries of a child were heard coming<\/p>\n
out from bushes at some distance. At least PW-1 and<\/p>\n
6 have corroborated the prosecution case that this<\/p>\n
appellant    threatened        PW-6    to   return     or    else   he<\/p>\n
would shoot him and the voice of the appellant was<\/p>\n
identified by PW-1 who was also engaged in search<\/p>\n
in the near vicinity around the bushes. There is no<\/p>\n
dispute   that     witnesses     are    co-villagers        and   they<\/p>\n
are capable of identifying the appellant by face as<\/p>\n
well as by voice.\n<\/p>\n
            15. From the evidence of large number of<\/p>\n
prosecution witnesses it is clear that in the next<\/p>\n
morning when some persons of the village went to<\/p>\n
enquire about the missing girl at the house of the<\/p>\n
appellant,    he    was   not    there      and   no   satisfactory<\/p>\n
explanation for his absence was given by his father<\/p>\n
who was also tried with the appellant but has been
\n                                     17<\/span><\/p>\n
acquitted of the charges under Section 120B of the<\/p>\n
IPC.    Some    confusion                has    been     created   by   hearsay<\/p>\n
witness       PW-2    but           on    a     careful     reading     of   his<\/p>\n
evidence it is clear that he is not reliable on the<\/p>\n
point of his claim that he had also accompanied the<\/p>\n
co-villagers to the house of the appellant in the<\/p>\n
next morning. First he replied that on queries the<\/p>\n
appellant      gave        a    reply          but   he   corrected     himself<\/p>\n
immediately          and        then           claimed     that    appellant’s<\/p>\n
father had given a reply that as they had done so<\/p>\n
they would receive.\n<\/p>\n
              16.     From the recovery of the clothes of<\/p>\n
the deceased and her dead body from places within<\/p>\n
the village it is further clear that the offence<\/p>\n
was committed by a resident of that village only.<\/p>\n
              17.      There             is     no   explanation      from   the<\/p>\n
defence which could show either that the appellant<\/p>\n
was not present in the village on the night of the<\/p>\n
occurrence or that he had not disappeared from the<\/p>\n
village soon after occurrence. There is no material<\/p>\n
to     show    any     enmity             on      account    of    which     the<\/p>\n
appellant      could           be    falsely         implicated    in   such   a
\n                              18<\/span><\/p>\n
heinous crime. Lastly, there is no good reason to<\/p>\n
disbelieve      the     prosecution            case    particularly       the<\/p>\n
evidence    of     PW-1      and        6    which    clearly    show     the<\/p>\n
involvement of the appellant in the crime. These<\/p>\n
witnesses had disclosed their version to the co-<\/p>\n
villagers who have corroborated the same as hearsay<\/p>\n
witnesses    and      they        had       also   deposed    accordingly<\/p>\n
before    the     Investigating              Officer    as    well   as    in<\/p>\n
their statements recorded under Section 164 of the<\/p>\n
Code of Criminal Procedure.\n<\/p>\n
            18.    The submissions advanced on behalf of<\/p>\n
the   defence     that    a       boy       mentioned   by    PW-1   and   a<\/p>\n
Chaukidar mentioned by the I.O. ought to have been<\/p>\n
examined as witnesses is found to be without any<\/p>\n
substance. It is not the case of PW-1 that the boy<\/p>\n
named the appellant. It is only claimed that the<\/p>\n
boy saw a person in the bushes. So far as Chaukidar<\/p>\n
is concerned, he was merely accompanying the I.O.<\/p>\n
during investigation and as disclosed by the I.O.<\/p>\n
Chaukidar’s       statement         was        never    recorded     under<\/p>\n
Section    161     of    the      Code        of   Criminal     Procedure.<\/p>\n
Hence, Chaukidar was not at all a witness of any
\n                                 19<\/span><\/p>\n
material facts and not required to be examined by<\/p>\n
the prosecution. The exaggerations alleged against<\/p>\n
the informant, in the facts of the case are also of<\/p>\n
no consequence. The witnesses are rustic villagers<\/p>\n
and the informant in particular had suffered severe<\/p>\n
trauma on account of a heinous crime against his<\/p>\n
five     years      old    daughter.            Hence,        such      witnesses<\/p>\n
cannot      be      expected         to      recall        each        and    every<\/p>\n
incident      in       detail        or    to    give      exactly           similar<\/p>\n
version of the occurrence. The material aspects of<\/p>\n
the    case       have     been           deposed     by      the       witnesses<\/p>\n
including the informant in a reliable manner. They<\/p>\n
have   not       made     any    false       claim       of    posing         to   be<\/p>\n
eyewitnesses.           Since there is no enmity between the<\/p>\n
appellant        and    the     informant        and     other         witnesses,<\/p>\n
there is not reason why they would depose falsely<\/p>\n
against      him.       The     witnesses          are     therefore           found<\/p>\n
reliable and trustworthy. The delay of one day in<\/p>\n
lodging the FIR stands explained by the nature and<\/p>\n
circumstances of the case. The shocked father of<\/p>\n
the victim girl was bound to disbelieve the ill<\/p>\n
fate   of     the      victim        till    all    hopes         of    her    safe
\n                                  20<\/span><\/p>\n
return vanished.\n<\/p>\n
               19.     In view of the aforesaid discussions<\/p>\n
and findings I am of the considered opinion that<\/p>\n
the     trial    court          has    rightly    found     the       charges<\/p>\n
proved against the appellant beyond any reasonable<\/p>\n
doubts.\n<\/p>\n
               20.     Coming to the question of sentence,<\/p>\n
it is noticed that the appellant was aged about 27<\/p>\n
years     at     the       time       of    alleged      occurrence        and<\/p>\n
although        it     is        established       by     circumstantial<\/p>\n
evidence as discussed above that he was the person<\/p>\n
involved with the offence, the lack of any direct<\/p>\n
evidence persuades me not to opt for the extreme<\/p>\n
penalty of death sentence. The offence was barbaric<\/p>\n
and      against           a      hapless       child      but        without<\/p>\n
premeditation              and        any      motive      because         the<\/p>\n
prosecution          has       also   denied    any     previous      enmity.<\/p>\n
There     is    nothing          on    record     to     show       that   the<\/p>\n
appellant is incapable of reform in future. Hence,<\/p>\n
Considering          the        aforesaid       aspects,        I    am    not<\/p>\n
inclined to award death sentence to the appellant.<\/p>\n
               21.     In the facts of the case, following
\n                      21<\/span><\/p>\n
the Supreme Court judgment in the case of Swami<\/p>\n
Shraddanand @ Murali Manohar Mishra Vs. State of<\/p>\n
Karnataka, J.T. 2008 (8) SC 27,         I direct that the<\/p>\n
appellant shall not be released from prison till he<\/p>\n
completes   20   years    of   actual   imprisonment.   The<\/p>\n
reference is answered in negative. The appeal is<\/p>\n
dismissed   with    the    aforesaid     modification    in<\/p>\n
sentence.\n<\/p>\n<\/p>\n
                               (Shiva Kirti Singh, J)<\/p>\n
(S.M. Mahfooz Alam,J)<\/p>\n
                                (S.M. Mahfooz Alam,J)<\/p>\n
Patna High Court
\nDate the….September, 2008
\nNAFR\/PERWEZ
\n 22<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Sikander Ansari vs State Of Bihar on 11 September, 2008 Author: Shiva Kirti Singh 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) _____ Reference made by Sri Umesh Chandra Mishra, Additional Sessions Judge, Fast Track Court […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-111906","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nSikander Ansari vs State Of Bihar on 11 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sikander-ansari-vs-state-of-bihar-on-11-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sikander Ansari vs State Of Bihar on 11 September, 2008 - 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