Kasim @ Kasim Ansari vs The State of Bihar

Heard Sri Uday Kumar , learned counsel for the two

appellants and Sri Ajay Mishra, learned Additional Public Prosecutor.

The present Appeal was preferred against the judgment of

conviction dated 18.3.1993 passed in Sessions Trial No. 118 of 1992

/ 145 of 1992 & 183 of 1992 / 85 of 1992 by the learned 2nd

Additional Sessions Judge, Sitamarhi (arising out of Riga P.S. Case

No. 32 of 1992 ) . By the said judgment the appellant/ Kasim @

Kasim Ansari was held guilty for offence under Section 302 of the

Indian Penal Code and so far appellant no. 2 is concerned, he was

held guilty for offence under Section 302 read with Section 114 of

the Indian Penal Code. Both the appellants were sentenced for

rigorous imprisonment for life.

Short fact of the case is that on the basis of fardbyan of

Shahid Ansari , son of Rafique Ansari an F.I.R. vide Riga P.S. Case

No. 32 of 1992 was registered on 7.3.1992 for offence under section

302 / 34 of the Indian Penal Code. It was alleged by the informant that

while he along with father namely, Rafique Ansari and other co -

villagers had visited a Maszid of the village, ten accused persons

namely: 1- Kasim, son of Hadis Ansari , 2- Qayum son of Sadique

Ansari, 3- Taslim Miyan , son of Sadik Ansari /appellant no. 2, 4-

Farjand , son of Munsi Miyan , 5- Hakim Ansari , son of Iman

Ansari, 6- Idrish , son of Shaheb Jan , 7- Julfikar , son of Taslim , 8-

Hadis , son of Dhanu Miyan, 9- Khalil Ansari , son of Adalat

Ansari and 10- Muzaffar Ali, son of Abdul Bari started assaulting his

father, in which he fell down. Thereafter, two accused persons Taslim

Ansari /appellant no. 2 and Qayum caught both hands of his father

and thereafter, Md. Kasim gave knife blow on his chest. The reason

for such occurrence was disclosed regarding offering prayer in the

Maszid premises. Subsequently, the injured was carried on thela to

hospital, but on way to hospital he succumbed. Thereafter, dead

body was brought near the door of the deceased. Subsequently, on

information received Police arrived, recorded fardbayan of Shahid

Ansari , who had been examined as PW 11. In the present case the

dead body was forwarded for post -mortem examination, which was

held and in post -mortem examination one external injury was

found, that was incised injury on the chest of the deceased. The case

was investigated and thereafter, charge sheet was submitted on

9.5.1992 against all the ten F.I.R. named accused persons. After

completion of supply of police paper the case was committed to the

court of Sessions on 1.7.1992. However, charges were framed

against eight accused persons including both the appellants. During

the trial prosecution produced eleven witnesses to prove the case.

Alisher Ansari , brother of the informant, was examined as PW 1;

Dr. Virendra Kumar Sharma , who had conducted post -mortem

examination on the dead body of the deceased was examined as PW 2

; Md. Jahoor Ansari, son of the deceased and brother of the informant

was examined as PW 3 ; Shamsher Ansari , son of the deceased and

brother of the informant was tendered as PW 4; whereas Sri Arun

Kumar, who was the Investigating Officer of the case was examined

as PW 5. In the case remaining six witnesses namely Hafiz Ansari

PW 6, Farookh Ansari PW 7 , Shaheb Jan Mian /PW 8, Shafi

Mohammad/ PW 9 , Abdul Sattar /PW 10 and informant/ Shahid

Ansari, who was examined as PW 11 were declared hostile. PW 1

and PW 3 had claimed to be eye witnesses. In the examination -in-

chief , PW 1 as well as PW 3 claimed to be eye witnesses and

stated that while they along with their father and other villagers

were entering into the premises of Maszid for offering Namaz, the

accused persons were coming out and thereafter occurrence had

taken place whereas, in the fardbyan of Shahid Ansari (PW 11) , who

has also claimed as eye witness, it was stated that dispute arose in

between the parties in respect of offering prayer (Namaz). It was

disclosed as per fardbayan that the prosecution side were offering

prayer and thereafter dispute arose.

Learned counsel for the appellants has argued that in the

fardbayan the informant /son of the deceased, had made categorical

statement that his father and other villagers had visited Maszid for

offering prayer ( Namaz) and in the F.I.R. the informant has

specifically given the name of two persons namely, Shafi

Mohammad and Shaheb Jan as witness to the occurrence , however

during trial both the witnesses i.e. Shafi Mohammad and Shaheb Jan

who was examined as PW 9 and PW 8 had turned hostile.

According to him as per the evidence brought on record neither PW 1

nor PW 3 were present at the time of occurrence and subsequently

they had come to support the prosecution case. He submits that in the

cross- examination of Shahid Ansari /PW 11 , who was the informant

of the case, has accepted that whatever he had stated in his

fardbyan was not explained to him. In categorical terms in his

examination- in- chief he has stated that he had not seen as to who

gave knife blow on is father. In paragraph no. 1 of his examination -

in- chief he has made specific statement that he has not seen as to

who had given knife blow on his father and while answering to

question no. 2 he has also stated that only on being said by the

Investigating Officer he had put signature on the F.I.R., which was

never read over to him. According to learned counsel for the

appellants in the case none of the eye witnesses has turned up to

prove the case. Even the deposition of informant /PW 11

categorically indicates regarding false implication of the appellants.

He submits that during trial no evidence was brought on record to

suggest complicity of either of the appellants , even then the learned

trial judge while acquitting other eight accused persons who were

put on trial had convicted both the appellants and sentenced them for

rigorous imprisonment for life. According to learned counsel for the

appellants in a criminal trial it was necessary to prove the case beyond

all reasonable doubt, whereas in the present case there is nothing on

record to draw an inference regarding involvement of the appellants.

Sri Mishra, learned A.P.P. has argued that F.I.R. may not be

treated as encyclopedia. According to him PW 1 and PW 3 were

witnesses to the occurrence and they have supported the prosecution

case and evidence of those witnesses are sufficient to show that the

learned trial judge has rightly passed the judgment of conviction.

On going through the materials available on record it is

evident that the Investigating Officer , who was examined as PW 5

has not bothered to collect necessary evidences during investigation.

In his evidence it has come that during the trial from the prosecution

side even the clothes stained with blood were not produced as

material evidence nor anything has been indicated regarding recovery

of material stained with blood of the deceased from the Maszid

premises. In paragraph no.10 of his cross -examination PW 5/ the

Investigating Officer has accepted that he had not even prepared the

sketch map of the place of occurrence nor he has written anything

in the case diary regarding non- seizure of any material with stained

blood from the place of occurrence. In paragraph no. 13 of his cross -

examination he admits that he had not even sent the clothes to the

Forensic Science Laboratory for its examination nor he had produced

any list relating to seized clothes. The Investigating Officer had not

bothered to send inquest report. In paragraph no. 15 of his cross-

examination he admits that in the case diary nothing has been

indicated as to in whose presence inquest report was prepared. Now

coming to the evidence of the informant, who has been examined as

PW 11 it is evident that in his examination- in- chief he had made

specific statement that he has not seen as to who had given knife

blow on his father. He has not indicated as to who were participant in

the occurrence. The occurrence in the case had taken place in the

night at about 8 P.M. Though PW 1 and PW 3 had claimed that

they had witnessed the occurrence but nothing has been indicated

regarding the mode of light in the Maszid premises in which the

accused persons were identified. In the evidence of Investigating

Officer it has come that only one lantern was found in the premises.

The informant has categorically stated in his deposition that he had

put his signature on fardbyan only as per instruction of the

Investigating Officer. Considering the facts and circumstances

particularly the fact that informant, who was non else than the son of

the deceased has not supported the prosecution case nor any of the

witnesses who were shown as witnesses in the F.I.R. had come

forward to support the prosecution case it is difficult to rely on the

evidence of PW 1 and PW 3 who were also son of the deceased and

brother of the informant. Moreover as per FIR it is specific case of

prosecution that the informant with other co-villager had gone for

offering Nawaz. Meaning thereby that P.W. 1 and PW 3 were not

present. Accordingly the evidence of PW 1 and PW 3 as eye witness

becomes doubtful. In their evidence there were inconsistency in

respect of manner of occurrence. In a case relating to offence under

section 302 of the I.P.C. absence of inquest report also creates

serious doubt on the prosecution case.

After going through the material on record and evidences,

the Court is of the opinion that prosecution has not proved the case

beyond all reasonable doubt and as such, the appellants deserves to be

given the benefit of doubt. Accordingly, the judgment of conviction

and sentence dated 18.3.1993 is hereby set aside. The appellant no. 2

/ Taslim Ansari was granted bail vide order dated 31.3.1993 while

appeal was admitted and thereafter, vide order dated 24.7.1995 the

appellant no. 1/ Kasim @ Ksasim Ansari was directed to be released

on bail and they are still on bail. Considering the fact that they have

been acquitted, they are hereby discharged from their liability of

bail bond. The Appeal stands allowed.