Hassan Sarwar, S/o Nabi Karim VS State of Bihar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH, HARISH KUMAR, JJ.
Hassan Sarwar, S/o Nabi Karim – Appellant
Versus
The State of Bihar – Respondent
Criminal Appeal (DB) No.578 of 2016
Decided on : 21-06-2023

Advocates:
Advocate Appeared:
For the Appellant :Mr. Iqbal Asif Niazi, Advocate
For the Respondent: Mr. Abhimanyu Sharma, APP

Headnote:(A) Indian Penal Code, 1860 - Sections 376, 302, 201 - Conviction for rape and murder of a minor - The appellant was sentenced to life imprisonment under Section 302, alongside additional sentences for Sections 376 and 201 to run concurrently. The court relied on circumstantial evidence, particularly the 'last seen' theory and recovery of incriminating materials from the appellant's premises. The trial court found evidence credible and consistent, leading to a conviction. (Paras 2, 23-24, 30, 52-53)

(B) Criminal Procedure Code - The court highlighted that flaws in investigation do not automatically warrant acquittal if the evidence remains cogent. (Paras 30-42)

Facts of the case:
The appellant was convicted for the rape and murder of an 8-year-old girl whose body was found post-incident, leading to arrest and prosecution. Witness testimonies identified the appellant accompanying the victim before her death. (Paras 4-11)

Findings of Court:
The trial court established that the prosecution proved guilt beyond reasonable doubt through established circumstances and credible witness testimonies, reaffirming the absence of a reasonable explanation from the appellant regarding his whereabouts at the time.

Issues: The main issues revolved around circumstantial evidence, particularly 'last seen' theory and its judicial implications.

Ratio Decidendi: The court emphasized the principle that the burden shifts to the accused to explain the circumstances surrounding the last sighting of the victim, and the absence of any plausible explanation constituted crucial evidence against him.

Result: Appeal dismissed.

Table of Content
1. introduction and factual background of the case. (Para 1 , 2)
2. details of the prosecution's case and initial investigation. (Para 4 , 5 , 6)
3. evidence presented by prosecution witnesses regarding the events. (Para 8 , 9 , 10 , 21)
4. court's observations on the defendant's guilt and evidence. (Para 23 , 24 , 40)
5. court's analysis of circumstantial evidence and its implications. (Para 26 , 30 , 50)
6. arguments presented by the appellant's counsel. (Para 27 , 28 , 29)
7. legal principles related to circumstantial evidence established. (Para 31 , 33 , 38)
8. final conclusion of the court and dismissal of the appeal. (Para 54)

JUDGMENT :

HARISH KUMAR, J.

Heard Mr. Iqbal Asif Niazi, learned counsel for the appellant and Mr. Abhimanyu Sharma, learned Additional Public Prosecutor for the State.

2. The present appeal has been preferred by the sole appellant assailing the impugned judgment of conviction dated 11.04.2016 and order of sentence dated 12.04.2016 respectively passed by learned 1st Additional Sessions Judge, Darbhanga in Sessions Trial No. 306 of 2013, arising out of Simri P.S. Case No. 28 of 2013 whereby the appellant has been held guilty and convicted under Sections 376 , 302 and 201 of the INDIAN PENAL CODE and sentenced to undergo rigorous imprisonment for life for charge under Section 302 of the INDIAN PENAL CODE and to pay fine of Rs.20,000/-(twenty thousand) and in default of payment of fine to undergo R.I. for five years. Further sentenced to undergo for ten years for the charge under Section 376 of the INDIAN PENAL CODE and to pay fine of Rs.10,000/-(ten thousand) and in default of payment of fine to undergo R.I. for three years. The appellant further sentenced to undergo R.I. for seven years under Section 201 of the INDIAN PENAL CODE and to pay fine of Rs.5,000/-(five thousand) and in default of payment of fine to undergo R.I. for two years. However, all the sentences referred above were directed to run concurrently.

3. As per the mandate of not disclosing identities of the victims of sexual offences under Section 228A of the INDIAN PENAL CODE , which ought to be observed even by this Court also, we are referring the name of the victim as ‘X’ or deceased or victim girl.

4. The prosecution case is based on the fardbeyan of the informant (PW-5) Shakila Khatoon recorded by (P.W.9) S.1. Amar Nath Sah, SHO of Simri police station on 14.03.2013 at 7:30 hours, alleging therein, that on 13.03.2013 at about 2.00 PM, the grand daughter of informant namely (X), aged about 8 years, went outside for playing, but she did not return home. After making all efforts and hectic search, the victim could not be traced out. On the next morning at about 6.00 A.M. some villagers witnessed the dead body of grand daughter of informant lying at the bank of pond and blood was oozing from of nose of victim girl. It is further alleged that from the dead body it appears that someone after pressing mouth and neck committed murder of victim girl and threw her dead body in lonely place.

5. On the basis of fardbeyan of Informant (P.W.5) Simri P.S. Case No.28 of 2013 dated 14.03.2013 has been registered for the offence under Section 302 of the INDIAN PENAL CODE against unknown and accordingly formal FIR was drawn up.

6. The S.H.O. Simri Police Station Amar Nath Sah (PW.9) took up investigation of the case and visited at the place of occurrence, recorded statements of witnesses and sent the body of the deceased to Darbhanga Medical College and Hospital for postmortem examination. During the course of investigation Sections 376 and 201 of the INDIAN PENAL CODE were added by the order of the learned Chief Judicial Magistrate, Darbhanga on 23.03.2013. The investigating officer apprehended the accused and remanded in the case and after completion of investigation submitted charge sheet/ final report under Section 173 of the Cr.P.C. against the accused/appellant for the offences under Sections 376 , 302, 201 INDIAN PENAL CODE . On the bas