Patna High Court
Case Details
Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.529 of 1990 ---------- Against the judgment of conviction and order of sentence dated 04.12.1990 passed by ‘Sri R.P.Chaudhary, 4th Additional Sessions Judge, Munger in Sessions Case No. 433 of 1987. =============================================== 1.Wasimuddin 2.Kasimuddin @ Sayed Kasimuddin both sons of Nasimuddin,resident of village Maharajganj, P.S.Jamui, District Munger .... .... Appellants Versus The State of Bihar … … Respondent =============================================== Appearance : For the Appellant/s : M/s N.A.Shamsi & Neeraj Kumar @ SANIDH,Advocates For the Respondent/s : Mr.Ajay Mishra,Addl.P.P. =============================================== CORAM:HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA AND HONOURABLE MR.JUSTICE RAJENDRA KUMAR MISHRA (Per: HONOURABLE MR.JUSTICE SHYAM KISHORE SHARMA) ORAL JUDGMENT Date: 26-07-2013 --------- An affidavit containing copies of the death certificates of Syed Taslimuddin Ahmad alias Syed Taslimuddin (appellant no.2 Tassanuddin), Syed Nasimuddin (appellant no.4) and Syeeda Khatoon (appellant no.5) has been filed. The death certificates have been issued by Jamui Municipality. Learned APP does not counter the Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 2 assertion or casts doubt over authenticity of Xerox copies of death certificates. It is relevant to mention here that Taslimuddin (appellant no.2) was aged 40, Nasimuuddin (appellant no.4) was aged 75 and Sayeeda Khatoon (appellant no.5) was aged 63 years respectively at the time of recording statement under Section 313 of the Code of Criminal Procedure and about 23 years have passed thereafter. 2. In view of the affidavit and also in view of uncontroverted submission, the appeal on behalf of aforesaid three appellants abates and now judgment will follow for appellant no.1 Wasimuddin and appellant no.3 Kasimuddin @ Sayed Kasimuddin. 3. The appeal is against the judgment dated 04.12.1990 passed by the learned 4th Additional Sessions Judge, Munger in Sessions Case No. 433 of 1987 convicting the appellants under Section 302/34 of the Indian Penal Code and sentencing each of them to undergo imprisonment for life.
Legal Reasoning
Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 3 4. The death/killing of Aliya Khatoon wife of appellant Wasimuddin had led to registration of an U/D case earlier on the basis of statement of Wasimuddin which was reported about accidental death due to burning. Subsequently, on the basis of statement of Sayeed Azhar (P.W.8) with regard to killing of his sister Aliya Khatoon, an FIR (Ext.4) was registered against the appellants for offence under Section 302/34 of the Indian Penal Code. Sayeed Azhar had reported to Jamui police that his sister Aliya Khatoon aged 28 was married to Wasimuddin (appellant no.1) son of Nasim Uddin (now dead) about 5 years prior to the occurrence. She was not being properly cared by her in-law and her in-laws used to assault her regularly. The motive behind that was that informant’s sister has undergone surgical interference for appendicitis which had resulted expenditure of Rs.12,000/-. Aliya was being tortured to bring the said amount from her Naihar. Letters were written for the said amount by Aliya to his brother. On 10.06.1986 Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 4 informant’s father Hakim Ziaul Hassan (P.W.3) went to Jamui Maharajganj and knew through relatives of the village Amrath and some persons of Jamui that Aliya Khatoon has been killed by her in-laws and she has been buried on 08.06.1986. The police went to the place of occurrence and prepared inquest report (ext.6). Certain seizures were made (ext.8). The letters (Ext. 2 to 2/2) through which alleged demand was made were seized and were sent to the expert of Science Laboratory for examination and report. The place of occurrence was inspected and statements of the witnesses were taken. The case was found to be true, so chargesheet was submitted. Cognizance was taken and after supply of police papers, case was committed to the court of Sessions where charge under Section 304/34 of the Indian Penal Code was framed and explained to the accused persons to which they pleaded innocence. Hence trial proceeded. 5. The defence of the accused persons was that it was a case of suicide and that was Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 5 immediately reported to police which has resulted into institution of one U/D Case. All the in-laws and others participated in burial and it was due to ulterior motive, the informant has made out a case of murder in collusion of police. 6. In order to establish its case, the prosecution examined 10 witnesses. They are : P.W.1 Jamal Ahasan Jilani, an inquest witness, P.W.2 Mahfuzur Rahman, FIR named witness and brother of the deceased but subsequently declared hostile, P.W.3 Hakim Zainul Hassan, father of the deceased, P.W.4 Mohsin Akhtar, P.W.5 Samimul Hassan, another hostile witness, P.W.6 Badrul Hassan, another hostile witness, P.W.7 Shamim Afzal, a tendered witness, P.W.8 Sayeed Azhar, informant of the case and brother of the deceased, P.W.9 Naresh Pd.Sharma, Investigating Officer of the case and P.W.9 is Dr.Chandesar Pd. Sinha who conducted autopsy over the dead body of the deceased. 7. The defence has examined one Anil Kumar Mandal as D.W.1. Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 6 8. The trial court after considering the evidences on record and after hearing the arguments of learned counsel for the parties opined that the prosecution has been able to prove the charge against the accused persons beyond the shadow of all reasonable doubts and has passed the order of conviction and sentence, as stated above. 9. This Court is required to reappraise the evidences on record and to see as to whether there were materials on record to prove the charge against the appellants beyond the shadow of all reasonable doubt or not. 10. First of all, we would like to discuss the evidence of the doctor. P.W.10 is the doctor who on 08.06.1986 was posted as 2nd Medical Officer, Sub Divisional Hospital, Jamui, Munger and on the same day at 5.30 P.M. performed post mortem over the dead body of the deceased Aliya Wasimuddin wife of Syed Wasimuddin of village Maharajganj, P.S.Jamui, District Munger aged 25 years and found that the dead body was with partial rigor mortis and the lower limbs were bent Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 7 and stiff due to burnt skin of the body. The skin of the whole body from the head to toe was brunt in different thickness. Hairs were also burnt but a part of it was left. A part of the skin of the right leg was red and there were blisters at the margin. The injuries were ante mortem in nature caused by fire and death was within six hours. The death was due to severe shock due to burnt area of skin of whole body leading to circulatory failure. In cross-examination, the doctor has stated that he was treating Alia from before as she was his patient and she was advised for blood examination and X-ray of chest. She had delivered a child two months back and she was very weak. So she was advised for X-ray of chest. This witness had treated her up to 05.06.1986 meaning thereby she was treated even two days prior to the occurrence. On the report of this witness, technician of the hospital examined her in the hospital on the same day. On the basis of the report of the technician, this witness had prescribed some medicine. This witness has proved the prescription which has been Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 8 marked as Ext.A which is in his pen and signature. This witness found only burn injuries on the body of the deceased. 11. Now we discuss the evidence of the informant P.W.8. This witness has stated that on 08.06.1986 at about 2.00 P.M. he had been to his in-laws house for celebrating Eid festival. On 10.06.1986 he went to see his sister. As soon as he got down from the Bus, he knew about the present occurrence. Shamimul Hassan (P.W.5) told that Aliya has been done to death by her in-laws. She was assaulted and thereafter she was killed. This witness knew about the occurrence from Nanhi who was a maid servant in the house of the accused and a witness of the whole occurrence. She narrated every things about the occurrence. The informant rushed to the house of his brother-in- law Wasimuddin but the door of the house was bolted from inside. There he came across the information about the death of his sister. Door was not opened. Thereafter this witness went to police station where the accused persons were Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 9 present. The police was informed about the occurrence but the Officer-in-charge did not pay any heed. The informant thereafter came out of the police station and again went there when the accused persons came out. The Officer-in-charge told this witness that an U/D case has been registered with regard to suicidal death of his sister. Informant’s father Hakim Ziaul Hassan (P.W.3) met him who was told by the relatives and other people of Amrath that Aliya was assaulted and thereafter killed which has been confirmed by Nanhi, a maid servant of the accused persons. When the Police Officer was not taking the matter seriously, the informant rushed to Munger to meet Superintendent of Police. The Superintendent of
Legal Reasoning
Police was Sri Gautam. On that day, he could not meet Superintendent of Police. On the next day i.e. on 12.06.1986, the informant, his father and his elder brother met with the Superintendent of Police and told him about the occurrence. The Superintendent of Police advised him to go to Jamui where case would be registered. Informant, Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 10 his father and his elder brother reached Jamui and on that date itself at 6.00 P.M. statement of the informant was recorded by P.W.9 which resulted into FIR. The informant has stated that Aliya was being assaulted regularly and a demand of Rs.12,000/- was being made which was spent in connection with treatment of informant’s sister. The informant’s sister had written a letter to her elder brother Mahfuzur Rahman (P.W.2), a copy of which was given to the Officer-in-charge. She had written 3 to 4 letters. Those letters were produced which have been marked as Exts. 2, 2/1 and 2/2. 12. The consistent evidence of the informant (P.W.8) is that the case was not initially registered and the killing was due to failure of the victim Aliya to bring Rs.12,000/- though some amount was also paid. The entire occurrence was also told by Nanhi (maid servant of the accused persons) who informed that prior to death Aliya was beaten. This witness has been supported by other witnesses namely, P.Ws.3 and 4. Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 11 13. The death of Aliya was in the house of the appellants and it was on account of burn injuries. She was residing with her in-laws. She was wife of Wasimuddin, appellant no.1. These facts have been established and no cross- examination has been made on these facts. Her death on account of burning is not under dispute. The point for consideration is as to whether Aliya was burnt to death or her death was accidental or suicide. 14. Learned counsel for the appellants has submitted that the sole witness of the occurrence was Nanhi, a maid servant of husband of the deceased, and her statement to all was that Aliya was beaten and thrashed mercilessly and thereafter she was killed. The doctor holding post mortem has not found any ante mortem injury caused by hard and blunt substance on her, so the information which had come from Nanhi regarding cause of death was not corroborated. The doctor’s specific evidence was that the death was on account of burn injuries and doctor has not found any injury of Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 12 assault or thrashing. On this basis, it has been argued that withholding of Nanhi by the prosecution has caused prejudice to the appellants and it was her evidence alone which could have distinguished and have established as to whether it was a case of suicidal or homicidal death. Once that was not brought, an adverse inference is to be drawn against the prosecution. The prosecution has deliberately withheld Nanhi. Further submission is that there is no corroboration of the version given by Nanhi regarding manner of assault and on this score alone it has been submitted that vast gap has been left in the evidence as gathered by the prosecution and the case raised by the prosecution is fit to be doubted and discarded. It has also been submitted that as to why the occurrence of 08.06.1986 was reported to police on 12.06.1986. From the FIR itself it is clear that the informant knew about the occurrence on 10.06. 1986 but no prompt step was taken for informing the matter to the police. It has also been submitted that the prosecution Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 13 was determined to fix the case and for that it provided fake letters of different handwritings and that has been proved by scientist and expert and on this score it is stated that the prosecution was determined to lodge a false case. 15. On the other hand, learned A.P.P. has submitted that under Evidence Act there are some presumption. The defence was to explain as to under what circumstances Aliya died in her house. Considering all the facts and circumstances of the case, it is apparent and established that it was a case of pre-planning. 16. Informant (P.W.8) in paragraph 10 of his deposition has stated that he met Superintendent of Police, Munger on 12.06.1986 and gave an application to Superintendent of Police, Munger and a copy of the same was handed over to the Officer-in-charge. There is no such paper available on the record to show that as to whether prior to institution of the present FIR, any information was given to the police and if it was given, the prosecution should have brought the Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 14 same on the record. P.Ws. 3 and 4 have gone to police station according to prosecution but this fact has been contradicted by P.W.9 in paragraph 16 of his deposition. The motive of the occurrence was demand of Rs.12,000/-by the in-laws of Aliya from the informant and his brother. The said amount was spent at the time of operation of appendicitis of the victim. From the evidence which has been brought on record it is apparent that operation of Aliya was held prior to her marriage which comes from the evidence of P.W.7 in paragraph 3. P.W.3, father of the deceased, has stated in his evidence that Aliya was operated upon by Dr. Kamal Ashraf at Patna. This fact has been supported by P.w.8 in paragraph 11 of his evidence. During operation it was noted that Aliya is daughter of P.W.3. On the strength of this evidence, it has been argued by learned counsel for the appellants that in case of married lady, the name of her husband is noted and not of father meaning thereby Aliya was operated upon before marriage. If the marriage was performed after Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 15 operation, then there was no question of demanding any money. That was the motive of the occurrence and the motive thus failed. It has also been submitted that P.W.2 is none else rather the full brother of the deceased who in his evidence in paragraph 6 has denied that any demand of money was made. P.W.8 in paragraph 13 has stated that the deceased Aliya never wrote letters to him with regard to demand of Rs.12,000/-. Therefore, the motive with regard to killing is not established beyond doubt. The brother of the deceased P.W.2 cannot be said to be on inimical term with informant or deceased. If elder brother of the deceased stated that no such demand was made, then it has to be considered. Not only that the evidence has come that operation was done prior to marriage and it is not conceivable that even after marriage issue was raised and same demand was made with regard to treatment before marriage. Therefore, the motive of the occurrence was not established. Not only that when statement of the accused under Section 313 Cr.P.C. was recorded, Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 16 question was put to the accused regarding demand of Rs.12,000/- which was spent on operation of Aliya, but the accused denied the allegation. Another circumstance which has come on the record is that the accused persons were found present after the occurrence in the house. Thus, on this basis it can be said that the accused persons were not guilty. It is commonly seen that the offender loses mental balances and by hook and crook his first step is to escape from the place of occurrence immediately after the occurrence. The house of P.W.1 is adjacent to the P.O. house and he is a relative of the informant. He has stated in his evidence that he reached at the place of occurrence just after hearing the sound of weeping of Wasimuddin and his parents. They called a compounder for treatment. P.W.5 in paragraph 9 of his evidence has stated that he found the accused persons near the dead body of Aliya. Similar is the evidence of P.W.6 in paragraph 6. P.W.8 in paragraph 20 has admitted that the accused persons had called a doctor. From the evidence of this Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 17 witness goes to show that the accused persons had taken care of Aliya. Not only doctor was called but the matter was informed to police also. It has come through the evidence of P.Ws.1,5 and 6 that 30 to 40 persons accompanied the dead body to the burial ground. They crossed for the burial ground through main market of Jamui. It goes to show that there was full participation and the accused persons never wanted to conceal the matter. Ext.2 is a letter written by deceased Aliya to P.W.2 which goes to show the misbehaviour of the accused persons with the deceased but P.W.2 has categorically stated that the deceased was never assaulted or misbehaved. Ext.2 does not mention the date of writing. Similarly, in Exts. 2/1 to 2/2 there is no averment of misbehaviour. On the other hand, Exts.A and B show that the Aliya was under treated by doctor up to 05.06.1986 and death occurred on 08.06.1986. If a person is intending to cause death, then he would not have taken his wife to the doctor regularly. 17. The prosecution has failed to produce Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 18 one more important and neutral witness Nanhi who had detailed about the occurrence. The details given by her was with regard to thrashing and assaulting the deceased Aliya which has not been corroborated by evidence of the doctor. Non- bringing of Nanhi or non-corroborating of version given by Nanhi rendered the circumstances which have to be taken into account. It does not appear that the accused persons were callous and the matter was reported to police which has come in evidence of informant who has stated that when he went to police station, accused persons were there from before and the police informed him that the matter has been reported to them. The motive of the occurrence which was demand of Rs.12,000/-was not established. Once the motive fails, then the doubt is created and the doubts were not properly explained. If the doubt remains to be unexplained by the prosecution, then the benefit of the same will go to the accused persons. 18. After analyzing the entire evidences and other materials on record, we are of the view Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013 19 that the prosecution has not been able to prove the charge against the appellants beyond the shadow of all reasonable doubts. Hence the appellants deserve acquittal.
Decision
19. In the result, the appeal is allowed and conviction and order of sentence of the appellants is set aside. The appellants are acquitted of the charge. Since the appellants are on bail, they are discharged from the liabilities of their respective bail bonds. (Shyam Kishore Sharma, J) (Rajendra Kumar Mishra, J) Patna High Court, Patna Dated, the 26th July, 2013 Tahir/-(NAFR)