Md. Ziarul vs The State Of Bihar
2022 Latest Caselaw 1994 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (DB) No.25 of 2014
   Arising Out of PS. Case No.-40 Year-2011 Thana- KHARHAGPUR District- Munger
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Md. Ziarul, son of Md. Abul, resident Of Village- Dariyapur, Police Station- Kharagpur, District- Munger

... ... Appellant/s Versus The State Of Bihar

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Abdul Manan, Adv Mr. Binay Kumar, Adv For the Respondent/s : Ms. Shashi Bala Verma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR And HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR)

Date : 04-04-2022

Heard the parties.

2. The appellant Md. Ziarul in this appeal has

challenged the judgment of conviction dated 11 th of

December, 2013 and the order of sentence dated 12 th of

December, 2013 passed by the learned 1st Additional

Sessions Judge, Munger in connection with Sessions Trial

No. 554 of 2011, arising out of Kharagpur P.S. Case No.

40 of 2011.

3. By the aforesaid judgment dated 11 th of

December, 2013, the appellant has been convicted for Patna High Court CR. APP (DB) No.25 of 2014 dt.04-04-2022

the offence punishable under Section 302 of the Indian

Penal Code (for short I.P.C).

4. After hearing the convict on the point of

sentence, vide consequential order dated 12 th of

December, 2013, the Trial Court sentenced the appellant

to undergo imprisonment for life and a fine of Rs.

5000/- for the offences punishable under Section 302 of

the Indian Penal Code and in case of default in payment

of fine, further sentenced to undergo imprisonment for

fifteen days.

5. The Sessions Trial in which the impugned

judgment and order was passed relates to the First

Information Report (in short 'F.I.R') that had been

registered on 15.02.2011 in Kharagpur P.S. Case No.

40 of 2011 under Section 302 of the Indian Penal Code

in respect of the incidence that had taken place at village

Dariyapur.

6. The prosecution case recapitulated as

hereunder is based on the fardbeyan of Md. Mannan Sah Patna High Court CR. APP (DB) No.25 of 2014 dt.04-04-2022

(P.W. 10), grand-father of the victim who has stated

that his grand-daughter namely Sajda Khatoon was

married with the appellant eight years prior to the date

of occurrence according to the muslim rites and customs.

The bride-groom lived happily for about four years but

thereafter a dispute arose between them which was

being compromised by a panchayati. On 14.02.2011,

the maternal aunt of the deceased namely Rukhsana

Khatoon (P.W 2) who was also residing in the same

village had informed the informant that his grand-

daughter has died. On receiving such information, the

informant reached at the village Dariyapur along with

Md. Israil (not examined), Aziz Sah (not examined) and

Md. Maneer (P.W 5). The informant has been informed

by the co-villagers that his grand-daughter has been

killed by her husband, the appellant of this case on

14.02.2011 at about 4:00 A.M by strangulating her neck

and he has fled away with his six years old son after

committing the occurrence. The victim was pregnant. Patna High Court CR. APP (DB) No.25 of 2014 dt.04-04-2022

The informant claims that in the background of some

earlier dispute, his grand-daughter has been killed.

7. Mr. Md. Mozammil (not examined), P.S.I of

P.S. Kharagpur has recorded the fardbeyan of the

informant on 15.02.2011 at about 12:30 P.M. at

Village-Dariyapur. Thereafter, a formal F.IR was

recorded and investigation was accordingly initiated.

8. After completing the investigation, charge-

sheet has been submitted against the appellant after

finding the case true against him. Thereafter, the case

was committed to the Court of Sessions for trial and

disposal. The charge was read over and explained to the

accused to which he pleaded not guilty and claimed to be

tried. His defence is that he has falsely been implicated

in this case and the occurrence did not take place in the

manner as alleged by the prosecution.

9. After hearing the parties, learned Trial Court

concluded that appellant Md. Ziarul has committed

murder of his wife Sajda Khatoon. Accordingly, the Patna High Court CR. APP (DB) No.25 of 2014 dt.04-04-2022

appellant was convicted and sentenced as indicated in

the opening paragraph of the judgment.

10. We have heard learned counsel for the

appellant as well as learned A.P.P for the State.

11. It is submitted by learned counsel for the

appellant that most of the P.Ws are not the eye

witnesses to the occurrence as they themselves have

stated that they all have heard that appellant had killed

his wife Sajda Khatoon and when they went to the house

of the appellant they had seen the dead body of the

victim lying at the verandah of the house of the

appellant. All the witnesses have not seen the actual

killing but had only heard that the deceased who was

wife of the appellant was killed by the appellant, they

should be treated as hearsay witnesses and their

evidences should not be relied for convicting the

appellant on the charge of murder of his own wife. It is

further submitted that the victim died due to falling from

the ladder.

Patna High Court CR. APP (DB) No.25 of 2014 dt.04-04-2022

12. The further submission of the learned

counsel for the appellant is that the Doctor (P.W. 4) who

has conducted the autopsy of the victim, in his cross-

examination has stated that both wounds may be caused

due to falling on the earth. It is also submitted that it is

the settled principle of law that the prosecution must

prove and establish its case on its own evidence and that

too beyond shadow of reasonable doubts. In this case,

there is no evidence either direct or indirect to prove

that it was the appellant who had throttled the deceased.

Therefore, it shall not be safe to come to a finding that

the appellant was the author of the murder. As regards,

the findings of the learned Trial Court itself do not not

rely upon the direct evidence and so conviction is based

on circumstantial evidences only.

13. The other contention of the learned

counsel for the appellant is that the circumstance

considered by the learned Trial Court was only that the

deceased was wife of the appellant and she was found Patna High Court CR. APP (DB) No.25 of 2014 dt.04-04-2022

dead at the verandah of the appellant. It will not lead to

a conclusion that it was the appellant being husband who

had committed murder.

14. As against this, learned A.P.P for the State

contends that though there is no direct evidence to

prove and establish the prosecution case, there are such

circumstances so as to complete the chain of events

indicating that appellant had committed murder in the

manner as alleged.

15. To substantiate the charge levelled against

the accused, altogether eleven witnesses have been

examined on behalf of the prosecution.

16. P.W. 1, Md. Kalam Hussain is the co-

villager who has been examined as an independent

witness. He has identified his signature on the inquest

report which has been marked as Ext-1. He claimed that

he had no knowledge about the occurrence and he had

heard about the occurrence to someone. He is not an

eye witness to the occurrence.

Patna High Court CR. APP (DB) No.25 of 2014 dt.04-04-2022

17. P.W. 2 Rukhsana Khatoon is the maternal

aunt of the victim and resides in the village of the

deceased. She had informed the informant about the

murder of his grand-daughter. During cross-examination,

she has denied to have explained the manner of

committing death of the deceased Sajda Khatoon. It

would be proper to mention that this witness is close

relative of the deceased and she may be a star witness

to through the light about the alleged occurrence. It

transpired from her evidence that she is not the eye

witness to the occurrence and she narrated about the

occurrence on the basis of hearsay.

18. P.W. 3 Mr. Munna is the unfortunate

father of the victim girl. He has stated in his evidence

that on reaching at the place of occurrence in village

Dariyapur, he saw that his daughter was lying dead and

blood was oozing from her nose. He also found a mark

on the neck of the deceased. He suspected that the

deceased might have been killed by throttling. He has Patna High Court CR. APP (DB) No.25 of 2014 dt.04-04-2022

stated in his evidence that his relationship with his son-

in-law, the appellant was not cordial for the last 3-4

years and this might be a reason for killing of his

daughter by the appellant. He is also not an eye witness

to the occurrence.

19. P.W. 5 Md. Maneer Sah, P.W. 6 Sabeena

Khatoon, P.W. 7, Saibun Nisha, P.W. 8, Bano Khatoon,

P.W. 9, Julekha Khatoon and P.W. 11 Shakeela Khatoon

are the relatives and interested witnesses who stated

about the occurrence on the basis of hearsay.

20. P.W. 10 Md. Mannan is the star witness of

the prosecution in respect of this occurrence. He is the

informant and unfortunate grand-father of the deceased.

He has stated about the occurrence that he came to

know about the death of his grand-daughter through a

mobile call. On receiving such information, he reached at

the matrimonial house of his grand-daughter of Village-

Dariyapur and saw the dead body of his grand-daughter.

He saw that the dead body was lying in the verandah. Patna High Court CR. APP (DB) No.25 of 2014 dt.04-04-2022

He has stated that he is not the eye witness to the

occurrence.

21. P.W. 4 is Dr. Vijay Kumar who conducted

the autopsy of the victim and found following

antemortem injuries on the body of the deceased:-

"1. Externally there was abrasion with bruise three in numbers seen in (Lt) side of the neck in anterial triangle. Size 1" x 1", ½".

(Lt) side of the mandible 3" below the (Lt) ear to be size ½" x ½" caused by finger pulp and nail.

2. Open mouth Tangle protruded & clench between tooth.

3. UT-Gravid 16 WK-20 WK Pregnancy, male child seen.

3. Cause of death in my opinion due to Vasovagal attack due to throttling.

Time since death within 24 hours."

22. This witness in his cross examination has

stated that both the injuries were simple in nature and

may be caused due to falling on the earth.

23. It would be proper to mention here that

the Investigating Officer of this case was not examined

in spite of taking all efforts by the learned Trial Court. Patna High Court CR. APP (DB) No.25 of 2014 dt.04-04-2022

Due to non-examination of the I.O., the defence became

prejudiced.

24. It is the admitted fact that the death of

the deceased was unnatural. It is also the admitted fact

that all the prosecution witnesses who adduced their

evidences to support the prosecution case are interested

witnesses and are related with the deceased and the

informant who are not the eye witness to the occurrence

and their evidences are based on hearsay.

25. Now, we shall proceed to take into

consideration the nature of evidences brought on record

and see whether the evidence brought on record prove

and establish the charge levelled against the appellant

beyond shadow of reasonable doubts or not.

26. It is evidently clear that all the witnesses

examined by the prosecution are not the eye witnesses

to the actual killing and their versions cannot prove and

establish that it was the appellant who had committed

murder of his own wife. It is also evidently clear from Patna High Court CR. APP (DB) No.25 of 2014 dt.04-04-2022

the impugned judgment that the learned Trial Court

though did not find direct evidence on record to prove

and establish the prosecution case, its conviction is

based on circumstantial evidences which, according to

him were (i) dead body of the deceased was found lying

in the house of the accused (ii) the deceased died on

account of antemortem injuries and (iii) the accused Md.

Ziarul was not present there just after the occurrence.

27. It is a well settled principle of law that

when a case rests upon circumstantial evidence alone to

base conviction, such evidence must satisfy that

circumstances from which an inference of guilt is sought

to be done must be cogently and firmly established, such

a circumstances should be of definite tendency unerring

pointing towards guilt of the accused, the circumstances,

taken cumulatively should form a chain to complete that

there is no escape from conclusion that within all human

probabilities, the crime was committed by the accused

and none else and the circumstantial evidence in order to Patna High Court CR. APP (DB) No.25 of 2014 dt.04-04-2022

sustain conviction must be completed and incapable of

explanation and any other hypothesis of the guilt of the

accused and such evidence should not only be consistent

with the guilt of the accused but should be inconsistent

with his innocence.

28. In this case, the P.W.s deposed that there

were many occasions to quarrel between the deceased

and the appellant on account of trivial matters. In this

respect, a panchayati was conducted but there was no

consistent evidence about the conflicts between couples

and conflicts were happened when and where.

29. It is well settled principle that the

prosecution has to stand its own legs and it cannot rely

on weakness if any in the defence. The provision of

Section 106 of the Indian Evidence Act has no

application to the facts of the instant case because

initially the burden of proving the facts that appellant

had committed murder of his wife is not discharged by

the prosecution. Section 106 of the Indian Evidence Act Patna High Court CR. APP (DB) No.25 of 2014 dt.04-04-2022

cannot be attracted unless the initial burden of

establishing the guilt of the accused is prima facie

discharged by the prosecution. If we see evidence of the

prosecution then it is clear that there is no evidence to

prove that the appellant was seen at any time before or

at the time of incidence or after the incidence at the

place of occurrence where the place of occurrence is of

easy access to the public. The evidence regarding

presence of the appellant on the seen of the occurrence

is totally missing and therefore in absence of any prima

facie evidence against the appellant under Section 106

of the Indian Evidence Act, it has no application in the

instant case. Mere absconding of the accused cannot

form the fulcrum of a guilty mind in murder cases.

30. On a careful consideration of the evidences

brought on record, arguments of the learned counsel for

the appellant as well as learned A.P.P for the State, we

are of the view that prosecution miserably failed to

prove and establish the charge levelled against the Patna High Court CR. APP (DB) No.25 of 2014 dt.04-04-2022

appellant beyond shadow of reasonable doubt.

Therefore, this appeal appears to have merits.

31. In the result, this appeal is allowed.

32. The judgment of conviction dated 11th of

December, 2013 and the order of sentence dated 12 th of

December, 2013 passed by the learned 1st Additional

Sessions Judge, Munger in connection with Sessions Trial

No. 554 of 2011, arising out of Kharagpur P.S. Case No.

40 of 2011 is quashed and set aside.

33. The appellant is acquitted of the offence

punishable under Section 302 of the Indian Penal Code

and he is directed to be set free forthwith.

34. Since the appellant is in jail, he is directed

to be released forthwith, if not wanted in any other case.

( Sunil Kumar Panwar, J)

A.M. Badar, J (A.M. Badar, J) Shageer/-

AFR/NAFR                NAFR
CAV DATE                28/03/2022
Uploading Date          05/04/2022
Transmission Date       05/04/2022