Jharkhand High Court
Hamid Momin Son Of Late Jahan Momin vs The State Of Bihar(Now Jharkhand) on 1 July, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
2025:JHHC:17321-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No.28 of 1998(R)
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1. Hamid Momin son of late Jahan Momin
2. Sahnaj Bibi wife of Hamid Momin
Both residence of village Babhni (Goradih) P.S. Silli District
Ranchi
.... .... .... Appellant(s)
Versus
The State of Bihar(now Jharkhand) .... .... ....Respondent(s)
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CORAM:HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellants : Mr. A.K. Sahani, Advocate
For the State : Mr. Subodh Kumar Dubey, A.P.P
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JUDGMENT
C.A.V. On 08.04.2025 Pronounced On: 01.07.2025
Per, Arun Kumar Rai, J.
1. The present appeal has been filed against the Judgment of
conviction and order of sentence both dated 19.01.1998 passed by the
learned 3rd Additional Judicial Commissioner, Ranchi in Sessions Trial No.
422 of 1996 whereby both the appellants have been convicted under Section
302/34 of the Indian Penal Code and have been sentenced to undergo R.I.
for life.
2. The case of prosecution is based upon the fardbeyan of one Nur
Islam Momin S/o late Habib Momin resident of Goradih Tola Bahmani P.S.
Silli District Ranchi. This fardbeyan has been recorded on 28.10.1995 at
12:30 P.M at the house of the informant who stated therein that yesterday
i.e. on 27.10.1995 at about 2:00 P.M. he went to Goradih market and when
he was returning then he got information that his mother was given
beatings, then by running he reached the home and saw his mother Mehjin
Bibi was lying on the ground in unconscious condition in the bari (garden)
of karim Momin. Informant further stated that his nani Gudni Bibi had also
told him that when his mother was coming from river, after taking bath then
villager Hamid Momin and his wife Sahnaj Bibi laid her on the ground and
with intent to kill her, given leg and fist blows on her chest and
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stomach. Then informant and villager namely Harun Momin and other
villager removed mother of informant on the cot to veranda of the house and
when his mother got conscious then she told that Hamid Momin and his
wife have given leg and fist blows on her chest and stomach and while
telling so, she got unconscious and died immediately. Cause of incident as
stated by informant is that her mother got married with Hamid Momin a
year back and his mother used to ask from him her maintenance but Hamid
Momin did not provide the same and on account of this, quarrel used to take
place between them and he also used to tell that his mother would be
liquidated. Upon aforesaid fardbeyan of informant, an FIR being Sill P.S.
Case No. 68/1995 under Section 302/34 of IPC has been registered.
3. After investigation I.O. has filed chargesheet being chargesheet
no. 13 of 1996 dated 10.03.1996 against both the appellants and thereafter
congnizance of the offence was taken and case was committed to court of
sessions on 19.07.1996. Charge under Section 302/34 of IPC has been
framed against both the appellants on 24.09.1996 to which they denied and
claimed to be tried. After examination of witnesses statement of accused
persons was recorded on 18.11.1997 under Section 313 of Cr.P.C. in which
appellants categorically denied allegation against them.
4. To prove its case prosecution has examined as many as nine
witnesses out of which four witnesses i.e. P.W-1, Harun Momin, P.W-2 Md.
Naseer, P.W.-3 Jetha Singh Ghatwar, P.W-4 Satar Momin are co-villager of
the informant but they have not supported the case of prosecution. P.W.-5,
Dr. Ajeet Kr. Choudhary has conducted post mortem examination on the
dead body of Mehjin Bibi. P.W. 6, Bhola Pandit and P.W.-9, Brij Nandan
Paswan are the I.Os. of the present case and P.W.-9 had taken the charge of
investigation when almost investigation was over.
5. P.W.-7, Noor Islam Momin is the informant and son of the
deceased whereas P.W.-8 Gudhro Bibi is the mother of deceased and nani of
P.W.-7. As per prosecution case, mother of the deceased P.W.-8, Gudhro
Bibi is the eye witness of the incident of the present case and son of the
deceased P.W. 7, Noor Islam Momin is the person who alongwith other
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villager removed the deceased on cot from bari of Karim Momin to verenda
of his house and allegedly when deceased regained her sense she divulged
the incident to him (P.W.-7) by saying that both the appellants have given
leg and fists blows on her chest and stomach and thereafter she died.
6. To appreciate the material evidence brought on record on behalf of
prosecution, it is necessary to reproduce the evidence of P.W.-7 & P.W.-8
P.W.-7 has deposed that incident is of 27.10.1995 and he went to bazaar
(haat) and while returning villager told him that his mother was being given
beating by Hamid Momin and his wife Sahnaj Bibi and he came towards his
home by running and saw the above said two persons were giving beatings
to her mother in Karim's baari and he saw his mother in unconscious
condition. With the help of others his mother was removed on cot to his
house, where his nani was there, who also told about the incident to the
informant. At para 3 of examination-in-chief, he has also stated that his
mother had also told him about them (appellants) after getting a bit
consciousness and thereafter, she died. Motive assigned by this witness is
that his mother was asking for maintenance as she was left by Hamid after
marriage. In cross examination he has also stated regarding marriage of his
mother with Habib Momin and out of that wedlock informant and one sister
borne out and sister was elder to her. He has also stated that as it had
become evening on the day of incident, he could not give information and
police station is 10-12 Kilometer away from his house and there is no
metalled road in between his village and police station. He has also stated
that he has not intimated incident to panchayat and he denied the suggestion
of defence that one case of rape was lodged against his Nana by accused
person, therefore, they have been falsely implicated in the present case.
7. P.W.-8, Gudoro Bibi has deposed that her daughter's name was Mehjin
Bibi and she got married with Hamid and Hamid contracted second
marriage and Sahnaj Bibi (appellant no.2 herein) is his second wife. She
further stated that her daughter (deceased) after returning from river
was sitting near cot and she (P.W.-8) sat on the door in eastern side,
then Hamid laid her daughter down by caught hold of her hair and
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Sahnaj Bibi did marpit with her daughter and Sahnaj Bibi had also
given the iron daab blow to her daughter and she could not able to save
her daughter and on making commotion Harun, Nurun Islam, Naseer
and others came but by that time both the accused persons fled away. In
cross examination she has stated that her daughter Mehjin Bibi contracted
first marriage with Habibullah 25 years back and he was her villager. She
has conceded to the fact that one false case of rape was lodged against
her husband and her husband was old person.
8. P.W.-6 Bhola Pandit is the I.O. who has identified his writing and
signature on the fardbeyan and same has been marked as exhibit 3. Formal
FIR has also been marked as Exhibit 2. He further stated that he inspected
the place of occurrence at the behest of informant and it is Karim Momin' s
baari which is sixty feet away from the northern side of house of the
informant where it is alleged that accused persons had given beatings to the
deceased. He also stated that death inquest report was prepared by him and
same has been marked as Exhibit-4. He has also stated that there is one
dhaba towards one side of the house of informant and thereafter one road
and one masjid is situated at 60 feet away from that road and towards north
side of this masjid there is baari of Nijam Bibi and thereafter, there is baari
of Karmim Momin. He further stated that no one has given information
about the incident and on rumor they visited to the place of occurrence and
he recorded the statement of informant Noor Islam Momin and mother of
deceased on second day of the incident. He further stated that re-statement
of informant was taken at 12:30 P.M. and thereafter inquest report was
prepared and he inspected the place of occurrence, thereafter, statement of
Gudoro Bibi got recorded.
9. This witness has stated that informant has not stated before him
that he saw both the accused persons were given beatings to his mother in
the Karim's baari rather informant has stated on heresay basis.
10. I.O. has further stated that Gudoro Bibi has also not stated that her
daughter came back to house from river and was sitting near cot and she
was sitting at the door towards east and Hamid laid her daughter down by
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caught hold of her hair and Sahnaj Bibi did marpit with her and she had also
not stated before him that deceased was given iron daab blow by Sahnaj
Bibi.
11. P.W.-5 , Dr. Ajeet Kr. Choudhary, who examined deceased on
28.10.1995 and found no external evidence of any mechanical injury on the
person of deceased but internally there was contusion of soft tissue on the
right side of forehead and adjoining scalp of occipital parietal scalp. Doctor
has also found presence of sub dural blood and blood clots over both side of
brain and more on right side. Doctor has opined that injuries were
antimortem caused by hard and blunt substance and death was due to head
injuries. He has also proved post mortem report as Exhibit 1. In cross-
examination he has categorically stated that he did not find any sign of
pressure on chest.
12. Learned counsel for appellants started his argument by making
submission that in the present case, firstly prosecution has not been able to
prove the place of occurrence as the so called eye witness, P.W.8 has stated
place of occurrence as the front of her house, but P.W. 7 has stated that it is
Karim Momin's baari. On above said point of non proving of place of
occurrence, submission has been made that P.W. 8 is only eye witness in the
present case and as she has changed the place of occurrence because
informant (P.W.-7) and I.O. (P.W.-6) have stated the place of occurrence as
Karim Momin's baari. So, appellants are entitled for exoneration from
charges on this point alone as entire case of prosecution has become
doubtful.
13. Furhter submission has been made on behalf of appellants that
even the ocular evidence does not find corroboration from medical evidence
and this also create doubt about the veracity of testimony of witness who
claims herself to be eye witness. It is further pointed out that FIR is delayed
by one day and there is no proper explanation has come on record, which
itself also creates doubt about the veracity of prosecution story.
14. Learned A.P.P. for the State submitted that considering the social
strata of witnesses, minor contradictions/discrepancies ought to be avoided
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by this Court and there is proper explanation which has come from the
mouth of informant P.W.7 that police station is 10-12 Kilometers away from
the house of informant and it was not a metalled road as such information
could not be given to the police station on the day of incident. He further
pointed out that law is settled that when there is difference between ocular
evidence and medical evidence, priority ought to be given to ocular
evidence.
15. As stated in preceding paragraphs that, none of the villager has
supported the case of prosecution and only son (P.W.-7) and mother (P.W.-8)
of the deceased deposed before court divulging the alleged culpability of
appellants in commission of crime. P.W.-7 is the informant who happens to
be son of the deceased and has stated in his testimony that on the date of
incident i.e. on 27.10.1995 while he was returning from the market, villager
told him that both the appellants were giving beatings to his mother and he
immediately rushed towards his home and saw both the appellants were
giving beatings to her mother in Karim's Bari and mother fell down and got
unconscious, thereafter he with the help of others removed her mother on
cot to his home where his nani was there and she (nani) also divulged the
incident to him. The fact of stating the name of appellants by the villager as
the persons who were giving beating to his mother while he was returning
from the market does not find corroboration from his fardbeyan vide Exhibit
3. Further the fact that informant saw the appellants who were giving
beatings to his mother in Karim's bari also does not find corroboration from
the fardbeyan of the informant vide Exhibit 3. As far as P.W.8 is concerned,
she has testified that her daughter (since deceased) was coming from river
and was sitting near cot and she (P.W. 8) was sitting towards the eastern side
of the door of the house, then Hamid laid her daughter (since deceased)
down by caught hold of her hair and appellant, Sahnaj Bibi did marpit with
her daughter and she had also given iron daab blow to the deceased. This
witness has improved her version which is very much apparent from the
deposition of the I.O, Bhola Pandit (P.W.-6) who has stated categorically
that P.W. 8 had not stated to him that her daughter came from the river and
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was sitting near the cot and she (P.W.-8) was sitting near the door towards
eastern side of the house and appellant Hamid by caught hold of her hair
laid the deceased down and appellant Sahnaj Bibi did marpit with her
daughter. I.O. has further stated that no such statement was also made by
P.W. 8 that appellant Sahnaj Bibi given iron daab blow to the deceased. It
further transpires that I.O. has inspected the place of occurrence which is
stated by I.O. as well as P.W.-7 as the bari of Karim Momin, which is 60
feet away from the house of informant/deceased. But as per version of P.W.8
place of occurrence is front portion of the house of the informant (P.W.-7),
but as per I.O. (P.W.-6) and informant (P.W.-7) place of occurrence from
where it is alleged that deceased was removed to her home on the cot, is the
bari of Karim Momin which is a bit away from the house of the informant.
Needless to say that it is no one case that after given beatings in front of
home of informant, deceased was taken to bari of Karim Momin. Hon'ble
Apex Court in the case of Syed Ibrahim vs. State of A.P. reported in (2006)
10 SCC 601 held that where the place of occurrence itself has not been
established it would not be proper to accept the prosecution version.
16. In the present case, as far as manner of occurrence is concerned,
the ocular evidence available on record indicates that both the appellants
had given leg and fist blow on the stomach and chest of the deceased,
however doctor (P.W.-5) who conducted post mortem on the dead body of
the deceased has categorically stated in his testimony that he did not find
any sign of pressure on chest and he also did not find any external evidence
of mechanical injury on the person of deceased rather, doctor, (P.W.5) found
that there was contusion of soft tissue on right side of forehead and
adjoining scalp and occipital parietal scalp. He has also noticed presence of
subdural blood and blood clots over both sides of brain and more on right
side. Doctor has opined death on account of head injury. A complete
contradiction or inconsistency between the medical evidence and the ocular
evidence on the one hand and the statement of the prosecution witnesses
between themselves on the other, may result in seriously denting the case of
the prosecution in its entirety but not otherwise.
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17. From above said medical evidence available on record and ocular
evidence as stated above, We are of considered view that the manner in
which incident stated to be allegedly committed by appellants becomes
doubtful. Our view also fortified from the fact that incident is of the evening
of 27.10.1995 but no intimation was given to police station or even to
panchayat and the explanation which has come from the mouth of informant
(P.W.-7) is that it had become evening that's why information was not
given, does not appear to be convincing one. Further testimony of I.O.
(P.W.-6) reveals that no intimation of incident was given to police station,
even on next day of the incident, rather police has visited to the place of
occurrence of its own after getting rumors on the next day of incident. As
far as, oral dying declaration by the deceased before P.W.-7 is concerned,
P.W.-7 has only stated that his mother had also stated regarding the above
said matter when she regained sense a bit. In his testimony P.W.7 has not
stated exactly that what was stated by deceased to him, however, he has
stated in his fardbeyan (vide Exhibit-3) that his mother told him (P.W-7) that
Hamid Momin and his wife given leg and fist blows on her chest and
stomach and while telling so she got unconscious and died immediately. It is
trite law that fardbeyan is not substantive piece of evidence and even
otherwise, as stated earlier that truthfulness of the version of witness
regarding giving of leg and fist blow to the deceased is doubtful because no
external injury or pressure on the chest of deceased was found and injuries
were found only on the head of the deceased and doctor has opined head
injury as the cause of death of deceased. Now it is required to be noted that
Contradiction in the version of P.W.-7 as stated and improvement made by
P.W. 8 make it doubtful that either P.W.-7 or P.W.-8 were/are the
eyewitness(s) to the incident.
18. Above stated analysis of factual matrix of the present case clearly
suggests that prosecution has not been able to prove place of occurrence
(P.O.), manner of occurrence and also that P.W.-7 &/or P.W.-8 are the eye
witness(es) of the incident. The above stated aspect has not been considered
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by learned trial court while passing the impugned judgment dated
19.01.1998 as such the said impugned judgment is liable to be set aside.
19. We, as a consequence of the discussion made herein above, set
aside the Judgment of conviction and Order of sentence both dated
19.01.1998 passed by learned 3rd Additional Judicial Commissioner, Ranchi
in Sessions Trial No. 422 of 1996.
20. Accordingly, this appeal is allowed.
21. Since, the appellants are on bail, they are discharged from the
liability of their respective bail bonds.
22. Let trial court record be sent back to the court concerned.
(Rongon Mukhopadhyay, J.)
(Arun Kumar Rai, J.)
Jharkhand High Court, at Ranchi
Dated :- 01 /07/2025
Rajnish/-N.A.F.R
9 Cr. Appeal (D.B.) No.28 of 1998(R)
