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Md. Mahfooz @ Md. Mahfooz Alam v/s The State of Bihar

    Criminal Appeal (DB) No. 633 of 2013

    Decided On, 03 January 2019

    At, High Court of Judicature at Patna

    By, THE HONOURABLE MR. JUSTICE RAKESH KUMAR & THE HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL

    For the Appellant: Ashok Kumar Mishra, Syed Asgher Najmi, Varun Kumar, Advocates. For the Respondent: Ajay Mishra, A.P.P.



Judgment Text

Rakesh Kumar, J

1. The present Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Cr.P.C.”) has been preferred by the sole appellant who has been convicted and sentenced in S. Tr. No. 160 / 2010 / S. Tr. No. 521 of 2012. By judgment dated – 03.06.2013 the appellant has been held guilty and convicted for commission of offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the “I.P.C.”) and by order dated – 06.06.2013 the appellant has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- under Section 302 of the I.P.C. and in default of payment of fine he has been directed to further undergo rigorous imprisonment for one year. The appellant was tried in S. Tr. No. 160 of 2010 / S.Tr. No. 521 of 2012. Judgment of conviction and sentence has been passed by Sri Paras Nath Rai, learned Adhoc Additional District & Sessions Judge- III, Jehanabad (hereinafter referred to as the “trial judge”).

2. Short fact of the case is that on 09.08.2009 at 14.30 Hours (2.30 P.M.) Sri Rajendra Kumar (P.W. 10), Assistant Sub Inspector of Police of Agamkuan Police Station recorded fardbyan of Rajiya Khatoon, wife of the appellant. The said fardbyan was recorded in Gokul Hospital, Patna. In the fardbyan the informant stated that in Room No. 105 of Gokul Hospital, Patna she was under treatment and she during treatment disclosed that on 07.08.2009 in the night at about 9.00 P.M. in a room of the house her husband (appellant), the husband sprinkled kerosene oil and thereafter lighted match stick and threw it on her person whereupon she was badly burnt. After she raised alarm number of neighbors assembled there and tried to save her. Her father- in- law firstly for her treatment carried her to Sadar Hospital, Jehanabad where she was treated and for better treatment he carried her to Patna and in Gokul Hospital, Patna she was under treatment. She stated that she was living with her husband separately from her father-in-law and mothe

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r -in-law. The reason for the dispute was stated by the informant that her husband was having illicit relation with Sannu Khatoon, wife of one Jahangir who was residing in a rented house just opposite the house of her husband. The said lady was also extorting money from her husband. Her son Imran who was aged about 17-18 years on instigation of Sannu Khatoon often used to assault the informant. She stated that Sannu Khatoon was having illicit relation with her husband since prior to her marriage and Sannu Khatoon was the lady who had got her marriage solemnized. The informant claimed that her husband with the aid and connivance of Sannu Khatoon with a view to kill her had sprinkled kerosene oil on her and ignited the same. She further stated that the said fardbyan was read over to her and after finding it correct she put her right toe impression on the fardbyan since her both hands were wrapped with bandage due to burn injury. The said fardbyan, she stated, was recorded in presence of her mother namely: Sahnaz Bano (not examined). On the said fardbyan the mother of the informant also put her L.T.I. On the basis of the said fardbyan which was recorded on 09.08.2009 a formal F.I.R. on 20.08.2009 was drawn vide Jehanabad P.S. Case No. 326 of 2009 for offence under Sections 324/326/307/498(A) read with Section 34 of the I.P.C. however subsequently on 27.09.2009 after death of the informant Section 302 of the I.P.C. was added. The F.I.R. was lodged against three accused persons namely:

(1) Md. Mahfooz (appellant);

(2)- Sannu Khatoon, and

(3)- Imran, son of Sannu Khatoon

3. During investigation accusation against the appellant was found true and as such, on 20.11.2009 charge- sheet was submitted against him keeping investigation pending against one of the F.I.R named accused, namely: Sannu Khatoon, whereas accusation against F.I.R. named accused- Imran was found false and as such, he was exonerated. Charge sheet was submitted under Section 302 / 34 of the I.P.C. After submission of charge sheet on 23.11.2009 learned Chief Judicial Magistrate, Jehanabad took cognizance of the offence and thereafter the case was committed to the court of Sessions on 03.05.2010, and as such, it was numbered as S. Tr. No. 160/2010/S. Tr. No. 521 of 2012. On 09.06.2010 charge was framed against the appellant under Section 302/34 of the I.P.C.

4. To establish its case on behalf of the prosecution altogether sixteen witnesses were examined. Out of sixteen witnesses, P.W. 1 - Md. Harun Ansari (father of deceased) and P.W 2 / Md. Munna (brother of deceased) were examined on the point that they were informed regarding the occurrence and injury of the wife of the appellant as well as the fact that she was being under treatment in Gokul Hospital, Patna. Thereafter, both of them went to Gokul Hospital, Patna. The witnesses further claimed that deceased after gaining her consciousness disclosed that she was set on fire by the appellant. P.W. 3 / Md. Mumtaz (elder brother of appellant), P.W. 4 – Juveda @ Jubera, next door neighbour of the informant - deceased, P.W. 5 / Md. Nausad (brother of appellant), P.W. 6 - Khurshid Ahmad (neighbour), P.W. 12 / Md. Babar Khan and P.W. 13 / Md. Taslim (both neighbour of the informant -deceased) though had given a different picture of the occurrence their attention to their previous statement was not drawn during the trial. P.W. 7 / Ashma Khatoon, P.W. 8 / Shakila (neighbour) and P.W. 9 / Sallauddin Ansari (neighbourers) since had not supported the prosecution case, they were declared hostile. P.W. 15 / Dr. Anil Kumar on 20.08.2009 was posted in P.M.C.H. and he conducted post- mortem examination on the dead body of the deceased. P.W. 16 / Umesh Prasad Singh, an Advocate’s Clerk, is a formal witness who proved formal F.I.R. as well as endorsement on the fardbyan. P.W. 14 -Satyadeo Singh, who had recorded fardbyan and also initially investigated the case and P.W. 11 / Ambika Prasad Yadav, another Investigating Officer, who recorded statement of some of the witnesses and with approval of senior Police Officers had submitted charge sheet.

5. After completion of prosecution evidence on 06.05.2013 statement of the appellant under Section 313 of the Cr.P.C. was recorded in which he claimed to be innocent and to disapprove the prosecution case two defence witnesses were examined. The appellant was examined as defence witness no. 1 and D.W. 2 / Shree Kant Sharma, an Advocate’s Clerk was examined as a formal witness, who proved certain bills / receipts regarding medical bills.

6. Sri Ashok Kumar Mishra, learned counsel, assisted by Mr. S.A. Najmi, learned counsel for the appellant after placing entire evidence has argued that prosecution has not established its case beyond all reasonable doubts, and as such, it was a fit case for acquitting the appellant, whereas, the learned trial judge ignoring the evidence on record, has passed judgment of conviction and sentence. He submits that the case is based on no evidence. According to Sri Mishra, in the case there is no eye witness to the occurrence and since it was a case under Section 302/34 of the I.P.C. onus was on the prosecution to establish the case as to how the occurrence had taken place. He further submits that innocence of the appellant is evident from the fact that immediately after the wife of the appellant received burn injury, information was given to the parents of the deceased that after such injury she was carried to Gokul Hospital, Patna and she was being treated in the said hospital. Sri Mishra submits that had there been any intention to kill the wife, there was no reason to take any steps for saving her in burnt condition and also for carrying the victim from Jehanabad Sadar Hospital to Patna for better treatment. Even the injured from private Gokul Hospital, Patna, after noticing her serious condition, was shifted to P.M.C.H. where she subsequently died. By way of referring to the evidence of P.Ws. 3, 5 and 13, Sri Mishra has argued that evidence of those witnesses demolishes the entire prosecution case. He submits that those witnesses in categorical term had stated that after hearing cry / hulla all the witnesses rushed to the place of occurrence and thereafter husband of the deceased, who was appellant had also taken serious effort to extinguish the fire and thereafter, the injured with the help of appellant was carried to hospital. He submits that some of the witnesses are very much specific that this appellant was all along with the deceased. He submits that evidence of those witnesses demolished the prosecution case.

7. Sri Mishra has specifically referred to the evidence of P.W. 6 namely Khurshid Ahmad, who was next door neighbour of the deceased. He submits that in his evidence P.W. 6 has stated that after hearing hulla he rushed to the place of occurrence and saw that appellant was outside the room and he alongwith husband and others went inside the room and tried to extinguish the fire. Sri Mishra by way of referring to the evidence of P.W. 2, who is none else but brother of the deceased, has argued that though this witness has admitted that his fardbyan was recorded in P.M.C.H., the said fardbyan has not been brought on record. P.W. 14, who is the First Investigating Officer of the case, in paragraph no. 4 of his cross examination has admitted that fardbyan of P.W. 2 discloses the fact that the deceased had received burn injury. In the fardbyan of P.W. 2 it was written that Rajiya Khatoon had received burn injury and she was admitted in Gokul Hospital. This information was given by this appellant over telephone. According to Sri Mishra had the prosecution brought on record the fardbyan of P.W. 2, the entire prosecution case would have been demolished and it appears that purposely prosecution has suppressed the said fardbyan.

8. Sri Mishra, learned counsel appearing on behalf of the appellant, has argued that though the fardbyan in the present case has been shown as if it was dying declaration, but on examination of the fardbyan an inference can be drawn that it was not truthfully recorded. He submits that in the fardbyan it has been recorded as if injured’s both hands were wrapped with bandage and this was the reason that the injured did not put her thumb impression, instead she put impression of right toe on the fardbyan, however on examination of the evidence of P.W. 10, A.S.I., Sri Rajendra Kumar, it is evident that he has stated that whole body of the injured was wraped with bandage and by extracting toe from the bandage its impression on fardbyan was obtained. This suggests that in an imaginary manner or as per diktat of the family members of the deceased, a false story was made out as if she was burnt by the appellant.

9. According to Sri Mishra the evidence of P.W. 15/ Dr. Anil Kumar, who had conducted post mortem examination also suggests that the injured was not in a condition to make any statement. He submits that the doctor who conducted post mortem examination in paragraph no. 2 of his cross examination has stated that the dead body was having 98% burn injury and in such burn condition there was no possibility of making such descriptive statement before the Investigating Officer, which has been treated as dying declaration. Sri Mishra has further argued that fardbyan in the present case may not be treated as dying declaration in view of the fact that the injured though was admitted in hospital, the Officer who recorded fardbyan of the deceased had not whispered as to whether he took any step to call the concerned doctor or even the Compounder who was present in hospital to become witness to the fardbyan. Even one of the witnesses, who was shown to be present at the time of recording fardbyan, who was non else but mother of the deceased, has not come forward to support that the said fardbyan was recorded in her presence. It appears, according to Sri Mishra, that by doing table work the said fardbyan was brought on record. Though the fardbyan was recorded on 09.08.2009 no reason has been assigned as to why formal F.I.R. was lodged after more than eleven days. Accordingly on aforesaid grounds it has been argued that prosecution has not been able to establish its case beyond all reasonable doubts and the judgment of conviction and sentence is liable to be set aside.

10. Sri Ajay Mishra, learned Additional Public Prosecutor opposing the Appeal has firstly submitted that though formal F.I.R. was recorded on 20.08.2009 whereas fardbyan was recorded on 09.08.2009 the delay has been explained by the Investigating Officer. The Investigating Officer in his evidence has made specific statement that fardbyan of the deceased along with inquest report was received in the Police Station which was sent through post on 20.08.2009 and immediately after receipt of the fardbyan on the same day formal F.I.R. was lodged, so it cannot be said that there was any apparent delay in lodging F.I.R. Sri Mishra, learned Additional Public Prosecutor has further argued that P.W. 1 (father of deceased) in his evidence has stated that after getting information while he went to Gokul Hospital, Patna to saw his daughter on 08.08.2009. She was unconscious and on the next day she gained consciousness and thereafter she disclosed to this witness as to how she was burnt by the appellant. He submits that this was oral dying declaration before the father by the deceased, and as such, considering the evidence of P.W. 1 as well as fardbyan of the present case, which is the basis of F.I.R. and same is dying declaration, the learned trial judge has rightly passed judgment of conviction and sentence, which requires no interference.

11. Besides hearing learned counsel for the parties, we have minutely examined entire evidence on record and after going through the same prima facie we are of the opinion that prosecution in the present case has not been been able to establish its case beyond all reasonable doubts. It is true that prosecution has come out with a case that in injured condition the deceased on 09.08.2009 gave her statement before P.W. 10/ Sri Rajendra Kumar, the Assistant Sub Inspector of Police, Agamkuan Police Station, Patna and in the said statement she has given detailed description as to how the appellant had sprinkled kerosene oil on her and thereafter same was ignited. The deceased in her fardbyan had stated that she with her husband was residing separately from her father -in- law and mother -in-law. Immediately after regaining consciousness her statement was recorded, which has been treated as fardbyan in the present case. In the fardbyan the deceased had stated that since on both of her hands there was bandage she put her right toe impression on the fardbyan. However, P.W. 10, who had recorded fardbyan of the deceased (informant) in paragraph no. 9 of his cross examination has stated that on the legs also there was bandage and after extracting some portion of the toe its impression was obtained on the fardbyan. This statement of the Officer, who had recorded fardbyan, itself raises serious doubt on the last portion of the contents of the fardbyan regarding putting impression on the fardbyan by the informant. P.W. 1 (father of the deceased) - Md. Harun Ansari, in his evidence stated that the father of the appellant had given a telephone call which was picked up by his wife and information was given regarding the incident as well as the fact that the injured was admitted in Gokul Hospital, Patna. P.W. 1 in his evidence stated that he went to Patna on the same day i.e. on 08.08.2009. His daughter was completely unconscious. However, on the next day she regained consciousness, thereafter, she disclosed about the occurrence and then Police arrived and recorded fardbyan of the injured on 09.08.2009, however, P.W. 2 / Md. Munna (brother of the deceased) has given statement, which is contrary to the evidence of P.W. 1. According to his evidence it appears as if the deceased regained consciousness on the same day i.e. on 08.08.2009 at 1-2 P.M. This P.W. 2 / Md. Munna has accepted his signature on the photo copy of his fardbyan meaning thereby that his fardbyan was also recorded by Police, which has been corroborated in the evidence of P.W. 14. On examination of evidence of P.W. 1 and P.W. 2 there is apparent contradiction. So far evidence of other witnesses i.e. P.W. 3 / Md. Mumtaz, P.W. 4 - Juveda @ Jubera, P.W. 5 / Md. Nausad, P.W. 6 / Khurshid Ahmad, P.W. 12 - Md. Babar Khan and P.W. 13 / Md. Taslim, it gives an entire different story. In the evidence of those witnesses it is common that while the injured was burning this appellant alongwith other family members was trying to extinguish the fire. Some of the witnesses have said particularly P.W. 6 that this appellant had carried the victim firstly to Jehanabad Sadar Hospital and thereafter for better treatment to Patna. In view of evidence of aforesaid witnesses it would be difficult to place much reliance on the so- called dying declaration. Otherwise also, it would be difficult to treat the fardbyan in the present case as dying declaration since the said fardbyan is not just prior to death of the deceased. On the contrary, she remained alive till 20.08.2009 from 9.8.2009 and in between this period from private hospital i.e. Gokul Hospital she was shifted to Patna Medical College And Hospital. There is evidence that she was conscious for some days also. In such situation after the fardbyan was recorded, it was prime duty of the Investigating Officer to immediately take steps to get her statement recorded before a Magistrate, however, nothing has been done by the prosecution on this issue. Even while recording fardbyan of the deceased, in normal course, it was required by the Police Officer, who recorded fardbyan, to get evidence of either the doctor or any personnel of the hospital. Only witness who was shown, in whose presence the said fardbyan was recorded, was the mother of the deceased namely- Sahnaz Bano. However, no explanation has been given by the prosecution regarding non examination of Sahnaz Bano (mother of the deceased) who was only witness to the said fardbyan. No corroborative material has been brought on record while recording fardbyan. It was indicated as if the said fardbyan was recorded only in presence of the mother of the deceased, however during the trial two more witnesses have come forward as if in their presence the said fardbyan was recorded, who are P.W. 1 (father of the deceased) and P.W. 2 (brother of the deceased). This also creates suspicion regarding the credibility of the fardbyan. During the trial P.W. 10/ Rajendra Kumar, who was Assistant Sub Inspector of Police and recorded fardbyan has proved the fardbyan, which was marked as Ext. 1, however without any plausible explanation P.W. 16, who was an Advocate Clerk has come forward to prove the formal F.I.R. and he proved the same as Ext. 2. P.W. 14 /the Investigating Officer of the case in his evidence in paragraph no. 1 has described regarding inspection of the place of occurrence however during inspection of the place of occurrence he had not noticed any mark of burning. This witness proved the formal F.I.R., which was marked as Ext. 3 and he also proved endorsement on the fardbyan of the deceased, which was marked as Ext. 1/1.

12. On examination of the entire evidence particularly contradictory evidence in between two sets of witnesses i.e. P.W. 1 and P.W. 2 (one set) and P.Ws. 3, 4, 5, 6, 12 and 13 (second set) it would be difficult to come to conclusion that prosecution has been able to establish its case beyond all reasonable doubts. Besides this, the prosecution at the stage of recording statement of the appellant under Section 313 of the Cr.P.C. had not brought entire circumstances or evidences before it. Initially in the present case the prosecution had come out with a case that motive for killing the deceased was that the appellant was having illicit relation with one Sannu Khatoon, however, at the time of recording statement of the appellant under Section 313 of the Cr.P.C. no indication was given by the prosecution regarding the motive. In such circumstances it would be difficult to approve the judgment of conviction and sentence.

13. Accordingly, by way of extending benefit of doubt it is necessary to interfere with the judgment of conviction and sentence, and as such, judgment of conviction and sentence dated- 03.06.2013 & 06.06.2013 respectively passed by Sri Paras Nath Rai, learned Adhoc Addl. District & Sessions Judge – III, Jehanabad in S. Tr. No. 160/2010/S.Tr. No. 521/2012 (arising out of Jehanabad P.S. Case No. 326 of 2009 corresponding to G.R. Case No. 1603 of 2009) is hereby set aside and the Appeal is allowed. The appellant / Md. Mahfooz @ Md. Mahfooz Alam is inside jail and since judgment of conviction and sentence has been set aside, it is hereby directed to release him forthwith, if not required in any other case.
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