AJMUL ANSARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 30.9.1994 of Sri Shyam Kumar Mishra, Additional Judicial Commissioner, Lohardaga, in S.T. No. 369/1991/47/1992.

(2.) The prosecution case as it appears from the fardbeyan, in brief, is that on 15.7.1990 at about 3.00 P.M. Janki Devi (deceased), mother of the informant was cutting grass in the field. The informant Sheo Shankar Sao (P.W. 4) and his brother Ram Shankar Sao (P.W. 5) were standing at the door of their house. At that time the accused-Appellant Ajmul Ansari came there armed with Basula in his hand and a calf, and tied the calf on the ridge of the field for the purpose of grazing the maize crops from the informant's field whereupon the informant's mother protested and forbade the accused not to tie the calf there. This enraged the accused Appellant and he Started abusing the informant's mother. Safique Ansari (P.W. 6) at that time came there and also asked the accused Appellant not to allow his calf to graze the maize crops of the informant. It is further alleged that accused-Appellant Ajmul Ansari then chased the mother of the informant armed with Basuli, who came near the door of her house, then the accused Appellant came there and assaulted the informant's mother Janki Devi (deceased) on her neck and head as a result of which she fell down and died at the spot. On alarm several villagers arrived there and the accused Appellant fled away from the place of occurrence. It is further said that the Chaukidar was informed, who went to Kisko police station and on getting information the police arrived at the place of occurrence. The statement of Sheo Shankar Sao, the informant, was recorded. On the basis of the aforesaid statement a formal F.I.R. under Sec. 302 of the Indian Penal Code was registered against the accused Appellant. The police after completing the investigation submitted charge sheet in this case. The learned Trial Judge, who conducted the trial of the accused Appellant came to the conclusion that the accused committed the murder of the mother of the informant, Janki Devi. The trial Court therefore, convicted the accused Appellant under Sec. 302 of the Indian Penal Code and sentenced him to undergo R.I. for life. Being aggrieved by and dissatisfied with the aforesaid judgment and order, the present appeal has been filed.

(3.) The prosecution has examined 8 witnesses in this case; out of whom P.W. 4 Sheo Shankar Sao, is the informant of this case. P.W. 5 is Rama Shankar Sao, the brother of the informant. These two witnesses along with P.W. 6 Safique Ansari, according to the prosecution case, are the eye witnesses of the occurrence. From their deposition it appears that the informant (P.W. 4) and Rama Shankar Sao (P.W. 5) are minor boys. The trial Judge recorded the age of the informant as 15 years on 6.4.1994. Similarly he recorded the age of P.W. 5 as 12 years on the same day. The informant, however, told his age as 13 years and P.W. 5 gave his age as 12 years. The occurrence alleged to have taken place on 15.7.1990, thus, even if the calculation of age as done by the Trial Judge is accepted then the occurrence happened near about four years ago from the date of recording of the deposition and, thus, on that date P.W. 4 (informant) would have been aged about 11 years and P.W. 5 was aged about 8 years. Thus, both these witnesses were minor boys at the time of occurrence and it is expected that there is little possibility of their, being telling lies. Both these witnesses have clearly corroborated to each other and also the fardbeyan and the prosecution case that about 3 years and 9 months before on Sunday at about 3 P.M. they were in front of their door, and their mother was cutting grass in the field. At that time the accused Appellant Ajmul Ansari came in front of their house and tied a calf for grazing maize crops, on which their mother stated that she gets the cultivation conducted by her children and he is getting the crops grazed by a calf. At this accused -Appellant started abusing their mother and chased her. She came running to the house and tried to close the door but the accused-Appellant came and assaulted her on the head, neck and other parts of the body with Basuli as a result of which she died at the spot. P.W. 4 has stated that the villagers informed the Chaukidar, who informed the Kisko Police station. Thereafter, the police came and took his statement which was read over and explained to him and finding it correct he signed on the same. There is nothing of much importance in the cross-examination of these two witnesses by which their aforesaid statements can be disbelieved. In his cross-examination P.W. 4 has stated that he was playing with his brother near the place of occurrence and Safique Ansari was coming from the river after taking bath. He has also stated that accused Ajmul Ansari and Safique Ansari are having their houses near their house. Now P.W. 6 Safique Ansari has stated in his evidence that he does not know anything about the murder of Janki Devi. This P.W.6, therefore, denied any knowledge regarding the occurrence and so he was declared hostile by the prosecution. He has also denied to have given any statement before the Magistrate on 16.7.1990. However, he proved his signature on the aforesaid statement recorded by the police under Sec. 161 of the Code of Criminal Procedure, which has been marked as Ext.2. This suppression of fact by this witness with regard to the recording of his statement before the Magistrate, clearly shows that he is suppressing the truth. However, he stated that the statement was not read over and explained to him. He has also denied that he has been gained over by the accused Appellant and he has given the false statements. In his cross-examination he has stated that the police did not take his statement, Sub-sequently then he said that police took his signature on his statement. Now it is very surprising that, when he did not give any statement then how the question of giving any signature on the same will arise.