Madhya Pradesh High Court
Fouziya Bi vs The State Of Madhya Pradesh on 17 May, 2025
Author: Atul Sreedharan
Bench: Atul Sreedharan, Anuradha Shukla
1 CRA-2579-2017
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ATUL SREEDHARAN
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 17th OF MAY, 2025
CRIMINAL APPEAL No. 2381 of 2017
RIZWAN
Versus
THE STATE OF MADHYA PRADESH
Appearance:
None appeared for the appellant.
Shri B.K. Upadhyay - Govt. Advocate for respondent State.
Shri Arun Kumar Pandey - Advocate for Objector.
WITH
CRIMINAL APPEAL No. 2479 of 2017
DHARMENDFRA PARMAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Prasanna Namdeo - Advocate for the appellant.
Shri B.K. Upadhyay - Govt. Advocate for respondent State.
Shri Arun Kumar Pandey - Advocate for Objector.
CRIMINAL APPEAL No. 2481 of 2017
LALIT NAGAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Signature Not Verified
Signed by: VIVEK KUMAR
TRIPATHI
Signing time: 12-06-2025
15:53:58
2 CRA-2579-2017
None appeared for the appellant.
Shri B.K. Upadhyay - Govt. Advocate for respondent State.
Shri Arun Kumar Pandey - Advocate for Objector.
CRIMINAL APPEAL No. 2579 of 2017
FOUZIYA BI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
None appeared for the appellant.
Shri B.K. Upadhyay - Govt. Advocate for respondent State.
Shri Arun Kumar Pandey - Advocate for Objector.
JUDGMENT
Per: Justice Atul Sreedharan
The present appeal has been filed by the appellants who are aggrieved
by the judgment of conviction and sentence dated 03.06.2017 passed in
Sessions Trial No. 40/2012 passed by the Court of learned I Additional
Sessions Judge, Raisen by which the accused Fouziya Bi, Rizwan and
Dharmendra Parmar were found guilty under Sections 302 read with Section
120-B, Section 302 read with Section 34 and Section 201 of Indian Penal
Code and sentenced to suffer rigorous imprisonment for Life whereas
accused Lalit Nagar was found guilty under Sections 302 read with Section
120-B, 302 read with Section 34, 201 and 404 of Indian Penal Code.
2. Criminal Appeal NoS. 2381/2017 have been filed by appellant
Rizwan, 2479/2017 by Dharmendra, 2481/2017 by Lalit Nagar and
2579/2017 by Fouziya Bi. All the appellants are undergoing the sentence
3 CRA-2579-2017
and have completed a little more than eight years. Mr. Prasanna Namdeo,
learned Advocate appears on behalf of appellant Dharmendra in Criminal
Appeal No. 2479/2017. No one appears for the other appellants. Shri B.K.
Upadhyay - Govt. Advocate appears on behalf of respondent State and Shri
Arun Pandey - Advocate appears for Objector in all the aforementioned
Criminal Appeals. The matter was listed today for hearing on applications
for suspension of sentence and grant of bail; however, as the counsel for
other appellants were not present, the Court decided to examine the case in
order to assess whether the same can be heard and decided in absence of the
counsel for other appellants.
3. The case of prosecution is that on 16.10.2011, complainant Salim
Khan preferred an information at Police Station Sultanpur at 10:45 p.m. that
his younger brother Yakub Khan informed him that Riyazuddin is lying
outside his house. It further disclosed that when they went to see
Riyazuddin, he was outside the house near the well lying in the lane. He
further states that he picked up Riyazuddin and brought him home and placed
him on the bed and then realized that Riyazuddin was dead.
4. Upon the information relating to the death of Riyazuddin, inquest
proceeding No. 53/2011 was registered and the Naksha Panchayatnama of
the body was prepared and the body was taken to the Government Hospital
for postmortem. The opinion in the postmortem report is that Riyazuddin
died on account of asphyxia and to assess the actual reason for the cause of
death, the visra was sent to the F.S.L for chemical examination. After few
days of the incident, the wife of the deceased appellant Fouziya Bi (Cr.A No.
4 CRA-2579-2017
2579/2017) informed Salim Khan, Yakub Khan and Tahrun Bi that she was
in a romantic relations with appellant Rizwan and on 15.10.2011 in the night
between 11 and 12, appellants Lalit, Dharmendra along with appellant
Rizwan entered the house from the rear door and all the three persons caught
hold the hands and legs of the deceased and strangulated him; thereafter took
the dead body from the room and disposed it of near the well.
5. The police recorded the memorandum of Fouziya Bi on 21.10.2011
and inquired from her. In her memorandum she took the names of the co-
accused persons Rizwan, Dharmendra and Lalit and disclosed their
involvement in the crime and stated that the mobile of the deceased
Riyazuddin was with Rizwan and she got her own mobile seized, which was
kept in her room. After receiving this information from Fouziya, the
memorandum of Rizwan was also recorded who got a motorcycle bearing
number MP 38 4995 recovered from outside of his house in the lane and
stated that the Mobile of the deceased was in the possession of co-accused
Dharmendra. Thereafter the co-accused Dharmendra was arrested, and his
memorandum was recorded in which he states that the Mobile of the
deceased was with appellant Lalit and he got his own mobile bearing
numbers 7828968163 and 9009164535 seized. The entire case of the
prosecution is based on the memorandum under Section 27 of Indian
Evidence Act, 1872 of the accused persons and recovery of Mobile Phones
belonging to them and the Mobile of the deceased allegedly seized from
appellant Lalit. It is also the case of the prosecution that there was
conversation between the appellants using the numbers and that they were
5 CRA-2579-2017
connected through a tower location not far from the house of the deceased.
6. The postmortem report is Exhibit P/31. The postmortem report
reveals that but for an abrasion mark on the chest and the arm, there are no
external injuries anywhere on the body of the deceased. All internal organs
are healthy. The probable opinion of cause of death given by the doctor
was asphyxia. But in his statement, he has stated though he has opined on
the probable cause of death, precise inference relating to the death could be
ascertained upon receiving the F.S.L. report relating to the viscera. The
F.S.L report is Exhibit P/30, has not recorded positive finding for poison in
the viscera of the deceased. The classical symptoms of strangulation or
asphyxia like bluishness of lips, congestion of the face, bluishness of the nail
or of fracture pf the hyoid bone are all conspicuous by their absence. There
are no marks of violence on the body except for the abrasions mentioned
hereinabove. The photographs of the deceased have been seen by this Court,
which are Articles A-1 to A-10. In fact, the opinion of the doctor in the
postmortem report itself is that the death has been caused due to asphyxia.
However, asphyxia can be for several reasons like throttling, garroting,
hanging and even on account of organophosphorus poisoning/consumption
of ingestion of insecticides and the doctor in his cross-examination has fairly
stated that there are several reasons for asphyxia. Also essential to mention
here is that the postmortem report does not say whether the asphyxia was
homicidal, suicidal or accidental. In short, the postmortem report and the
doctor's statement is inconclusive in order to arrive at a finding that the death
was homicidal.
6 CRA-2579-2017
7. The entire record goes to show that the memorandum of Fauzia
under Section 27 of the Evidence Act, 1872, which is the starting point of the
investigation, allegedly based on an extra judicial confession made to her in-
laws, five days after the recovery of the body upon which the memorandum
under Section 27 of the Act, 1872 is prepared and the facts in the
memorandum and the extra judicial confession are what the learned trial
Court has relied upon, along with the seizure of Mobile phones from the
accused persons. The seizure of motorcycle and the seizure of mobile of
deceased which was recovered from the appellant Lalit has also been a
circumstance which has weighed in with the Ld. Trial Court in the
convicting the accused. The recovery of the mobile from the appellant Lalit
Nagar follows a sequence which started with the memorandum under Section
27 of the Act, 1872 of Fouzia who says that the mobile of deceased is with
Rizwan. In his Memorandum under Section 27, Rizwan says that it is with
Dharmendra and Dharmendra says it is with Lalit. Seizure of the Mobile is
Ex.P/6. The witness is Salim Khan (PW-6) who has proved Ex.P/6 saying
that the he has signed the seizure memorandum relating to the recovery of
Mobile phone from Lalit Nagar but in his cross-examination he says that he
never went inside the house of Lalit Nagar and that he went to the house of
Lalit Nagar along with the Police in the night whereas seizure memo shows
that it was prepared around 5:45 p.m. from inside the house of the appellant
Lalit Nagar. Second seizure witness to Ex.P/6 has not been examined by the
prosecution. It is also important to state that P.W.-4 in his testimony says
that the Mobile phone which belonged to the deceased, was actually
7 CRA-2579-2017
purchased by Salahuddin. The bill of purchase of the Mobile is Ex.P-18
bears the name of Salahuddin who is P.W-4. Salahuddin in his testimony
states that he gifted the mobile to the deceased. Interestingly, the bill of
purchase reflects that the mobile was purchased in the year 2009 and the date
on which it was gifted is not clear from the evidence of Salahuddin. Learned
counsel for the appellant submits that the entire evidence against the
appellants is based on suspicion, surmises and conjectures. There is no eye-
witness to the so called murder. There is no witness to the last seen and the
first piece of evidence comes five days after the recovery of the body on the
basis of statement given by the appellant Fouzia Bi to her in-laws. It is also
necessary to mention here the body was not recovered from the room of
Fouzia Bi and her husband, but from an open place. So learned counsel for
the appellant submits that even Section 106 of Indian Evidence Act, 1872
will not apply here. He further says that the finding of the learned trial Court
with regard to the tower location has been based upon the inference drawn
by the learned trial Court upon the call details record of accused Dharmendra
and Rizwan from the service provider. There is no evidence produced by the
prosecution that the conversation that took place between accused
Dharmendra and Rizwan was related to the murder of the deceased. There
was no independent evidence to establish that the motive of the murder,
which according to the prosecution was an illicit relationship between
appellant Rizwan and Fouzia Bi. He further states that the Memorandum
under Section 27 of the Act, 1872 is worthless for the inculpatory part of the
statement as that would go against a right against self-incrimination, a
8 CRA-2579-2017
constitutionally protected right of the accused and is also hit by Section 25 of
the Evidence Act.
8. He has further stated that the postmortem report is inconclusive and
the photographs of the dead body reflect that there are no signs of injury
anywhere on the body of the deceased except a redness near the chest and a
small abrasion on the arm which the doctor, who carried out the postmortem,
in his cross-examination has stated that the same can happen if someone
vigorously scratches himself on account of itching. Besides, learned counsel
for the appellant submits that the classical symptoms of asphyxia are totally
absent on the body. The doctor nowhere has recorded any kind of bluishness
in the lips, congestion on the face or the nails which according to the learned
counsel for the appellant would have manifested in these parts of the body
had the death been on account of asphyxia. He has also stated that the
internal examination of the body of the deceased does not reveal any injury
to any internal organs and they all are in healthy condition, which also
reflects that the deceased was never subjected to any kind of violence. He
further submits that the postmortem report does not reflect that the hyoid
bone suffered any fracture which according to learned counsel for the
appellant is a classic outcome of strangulation which is the case of the
prosecution is based upon the memorandum under Section 27 of Act of 1872
and extra judicial confession of Fouzia. Learned counsel for the appellant
further states that Fouzia in her statement under Section 313 Cr.P.C has
denied that such confession was ever being given by her to her in-laws.
9 . Lastly, learned counsel for the appellant states that in the absence
9 CRA-2579-2017
of any substantive evidence, either by way of last seen or of the recovery of
any article used in the offence, the recovery of the motorcycle and mobile
phones and the call detail records are of no avail to the prosecution and that
entire conviction has been based upon conjectures and surmises.
10. Per contra learned counsel for Objector and the State have argued
together in one voice that the judgment passed by the learned trial Court is a
well-considered judgment and has taken into consideration all the
incriminating circumstances against the appellants which only go to prove
beyond reasonable doubt their involvement in the murder of the deceased.
As regards the extra judicial confession given by the Fouzia, to the in-laws,
learned counsel for the Objector and State submit that the same has been
proved by the in-laws who have been examined as witnesses. They have
further stated that the initial starting point of investigation was the extra
judicial confession and thereafter the statements that have been made under
Section 27 of Evidence Act by Fouzia, Rizwan and Dharmendra have led to
the recovery of several articles, though may not have been used as
implements in the commission of the offence, was used for the purpose of
conspiring to carry out the murder of the deceased.
11. Heard the learned counsel for the parties and perused the record of
the trial Court.
12. Admittedly, the initiation of the prosecution is on the basis of the
extra judicial confession made by Fouzia Bi which she has subsequently
retracted/denied in her statement under Section 313 Cr.P.C of ever having
given such an extra judicial confession to her in-laws. Case of the
10 CRA-2579-2017
prosecution is that Rizwan, Dharmendra and Lalit caught hold of the hands
and legs of the deceased and strangulated him to death. The photograph of
the deceased has been seen, who is a healthy young person and if the
prosecution story is correct with regard to the manner in which the death was
caused, there would have been abrasion near the wrist and the feet of the
deceased in the course of struggle that he would have put up to save himself.
The body is absolutely clear of any injuries other than what has been stated
here-in above.
13. We are in agreement with the proposition put-forth by the learned
counsel for the appellant that the inculpatory part of the memorandum under
Section 27 of the Act of 1872, cannot be used against the accused for
building up the prosecution story. The only worth of the memorandum under
Section 27 of Act of 1872 is with regard to recovery of articles used in the
offence. In this regard we find that mobile phones have not been proved
beyond reasonable doubt by the prosecution that they were used in the
commission of the offence. The conversations were not recorded, and the
only case of the prosecution is that the Mobile phones belonged to the
accused persons from whom it was seized, and they were in conversation
with each other. That by itself does not go to prove that there was a
conspiracy being hatched by the accused persons to commit the murder of
the deceased. Thus, in the absence of any evidence that the articles seized
from the appellants had any connection to the crime, their statement under
Section 27 of Act of 1872 itself is invalid. Such statements cannot even be
considered as one under Section 27 of Act of 1872 as it must unequivocally
11 CRA-2579-2017
go to prove the recovery of an article that had a direct nexus to the
commission of the crime or was a relevant fact associated with a fact in
issue, related to the commission of crime. The prosecution having miserably
failed to establish that, the statements of the accused cannot be considered as
one under Section 27 of the Evidence Act.
14. The absence of any last seen together evidence or any
incriminating information coming out of the postmortem report of any kind
of violence that the deceased was subjected to and the postmortem report
itself being inconclusive as to what caused asphyxia and in the absence of
any opinion whether the cause of death was homicidal, suicidal or accidental,
the entire case against the appellants was based upon surmises, conjectures
and suspicion.
15. Therefore, this Court is of the opinion that the appeals succeed.
There was no necessity to hear the counsel for the appellants who are not
there before this Court today as this order is not adverse to them but acquits
them all. The impugned judgment of conviction and sentence is set aside.
All the appellants are still undergoing the sentence. They shall be released
forthwith. The record of the trial Court be returned along with copy of this
judgment.
(ATUL SREEDHARAN) (ANURADHA SHUKLA)
JUDGE JUDGE
VKTr
