=========================================================== 1. Ummat Khatoon wife of Ghulam Mohammed 2. Shamina Khatoon wife of Abdus v. With
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.150 of 2002 =========================================================== 1. Ummat Khatoon wife of Ghulam Mohammed 2. Shamina Khatoon wife of Abdus Shakoor, both residents of village Budhnagra, Police Station Nanpur, District Sitamarhi The State of Bihar Versus With .... .... Appellant/s .... .... Respondent/s Criminal Appeal (SJ) No. 421 of 2002 =========================================================== 1. Rashida Khatoon son of Md. Hasim, resident of village Budh Nagar, Police Station Nanpur, District Sitamarhi 2. Md. Liyakat Raeen, resident of village Budha Nagar, Police Station Nanpur, District Sitamarhi State Of Bihar Versus .... .... Appellant/s
Legal Reasoning
.... .... Respondent/s =========================================================== Appearance : (In CR. APP (SJ) No. 150 of 2002 & CR. APP (SJ) No. 421 of 2002) For the Appellant/s : Mr. S. Hoda, Advocate Mr. Surya Narain Yadav, Advocate For the Respondent/s : Mr. Z. Hoda, A.P.P. Mr. S.A. Ahmad,A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT Date: 19-12-2013 It has been submitted that the Appellant No.2 Md. Liyakat Raeen of Criminal Appeal (S.J.) 421 of 2002 died during the pendency of the appeal and, therefore, his appeal is dismissed as having become infructuous. As for the surviving Appellants No.1 and 2 of Criminal Appeal (SJ) No.150 of 2002 and the Appellant No.1 of Criminal Appeal (SJ) No.421 of 2002, they have been convicted under Section 304 Part II Patna High Court CR. APP (SJ) No.150 of 2002 dt.19-12-2013 2 I.P.C. and sentenced to R.I. for five years by a judgment dated 25.2.2002 passed by the 1st Additional Sessions Judge, Sitamarhi in Sessions Trial No.13 of 1996/137 of 2000. The case of the prosecution according to the prosecutrix Nazbul Khatoon (P.W.6) is that on 21.6.1995 at 9 A.M. while she was stretching straw near her house, Appellant Ummat Khatoon passed over the same, upon which she protested. Appellant Ummat Khatoon abused the prosecutrix and felled her down on the ground then Appellant Shamina Khatoon and Rashida Khatoon also arrived there and dragged her into Angan and started to assault her. Just then the daughter of the prosecutrix, namely, Gulso Khatoon reached there to save her mother, at which the Appellant Liyakat (now dead) caught hold of both her hands and Rahmat Khatoon (his trial separated because of being juvenile) and the remaining Appellants assaulted her by means of fists and slaps and stone piece. The Informant then started raising an alarm. She found her daughter in an unconscious state, who was given some first aid. The doctor was also called to attend to her but by then her daughter died. When her husband came back, the present case was instituted. Initially the Appellants were charged under Section 302 I.P.C. but they were acquitted of the charges and sentenced as mentioned above. The prosecution in all examined eleven witnesses, whereas the Patna High Court CR. APP (SJ) No.150 of 2002 dt.19-12-2013 3 defence examined two witnesses, namely, D.W.1 Dr. Sujit Prakash Shrivastava, who was the Jail doctor and D.W.2 Indra Mohan Mishra, who was the Compounder and proved Exhibits A and B series. P.W.1 Md. Suleman stated that on the date of occurrence while he was in his house, he suddenly heard alarm from the house of his father-in-law and ran there. He found his mother-in-law and sister-in- law being assaulted by the present Appellants. Appellant Rashida Khatoon is said to have assaulted the deceased Gulso Khatoon with stone piece used for grinding spices while Appellant Liyakat was holding her hand. He tried to save her. He then found Gulso Khatoon unconscious who was given first aid but unfortunately died. During cross examination he was given a suggestion that Appellant Liyakat was aged about 80 years. He stated that when he went to the place of occurrence he found the accused persons and some independent witnesses standing there. A suggestion was given to him that in fact there was scuffling going on between the parties. P.W.2 Shamina Khatoon is the daughter-in-law of the Informant, who also supported the case in its entirety. P.W.3 Md. Hasim stated that he also went to the place of occurrence and found Gulso Khatoon dead in the courtyard of the Informant. The Informant told him as to who had assaulted the deceased. P.W.4 Md. Wakil is also on a similar point as P.W.3. Patna High Court CR. APP (SJ) No.150 of 2002 dt.19-12-2013 4 P.W.5 Ataur Rahman is the brother of the deceased, who stated that he reached his courtyard on alarm and found the occurrence. P.W.6 Nazibul Khatoon is the Informant, who gave the same version as that in the First Information Report. P.W.7 Md. Mosim is a tendered witness. P.W.8 Md. Hasim has been declared hostile. P.W.9 Dr. Surendra Chaudhary held postmortem on the dead body of Gulso Khatoon on 23.6.1995. He stated that the dead body was decomposed, swollen and skin had peeled off at many places and foul smell was coming out of it. There was echymosis below the left eye measuring 1”x1/2” and two black spots on the left breast and also heamatoma on the occipital area of the scalp. Multiple echymosis on the upper part of the back was under all peeled of skin. He stated that the time elapsed between death and postmortem was 72 hours. P.W.10 Mukhtar Ahmad is the Investigating Officer, who stated that on 21.6.1995 he learnt about the murder of the daughter of the Informant, at which he came to the village and found her dead body in the house. He recorded the statement of the Informant and examined the place of occurrence. He also sent the dead body for postmortem along with the Choukidar. P.W. 11 Chandeshwar Singh is the part I.O., who submitted the charge sheet. Patna High Court CR. APP (SJ) No.150 of 2002 dt.19-12-2013 5 The Counsel for the Appellants submits that the entries in the First Information Report indicate the falsity of the prosecution case. The admitted position is that the occurrence had taken place on 21.6.1995 at 9 A.M. However, the matter was reported at 8.30 P.M. after 12 hours only on arrival of the police. The prosecution has not explained as to why it did not take any step for reporting the matter earlier. Further it appears that the First Information Report reached the court only on 23.6.1995 and the postmortem was held on the same day. Even though the Investigating Officer stated that he had come on the very day of the occurrence which is supported by the eye witnesses, there is no explanation as to why the postmortem took place on 23.6.1995 i.e. more than 2 days later when the dead body was in a decomposed state. This indicates that the fard beyan was not given on the date purported to have been given because it is highly unlikely that in the month of June, which is a hot season, a dead body would be kept for full 72 hours for a postmortem. The submission is that it appears that the death had taken place in some other manner and the present case was instituted after much deliberation. I am inclined to accept that in the circumstances mentioned above a reasonable suspicion has been cast up on the prosecution Patna High Court CR. APP (SJ) No.150 of 2002 dt.19-12-2013 6 case. Hence giving benefit of doubt to the Appellants, both the appeals are allowed and the order of conviction and sentence passed against the appellants on 25.2.2002 by the 1st Additional Sessions Judge, Sitamarhi in Sessions Trial No.13 of 1996/137 of 2000 is set aside. The appellants are acquitted and are discharged from the liabilities of their respective bail bonds. NAFR/Narendra/- (Anjana Prakash, J)