Moti Ullah @ Md. Matiullah vs The State Of Bihar
2023 Latest Caselaw 3498 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.353 of 2017
      Arising Out of PS. Case No.-310 Year-2013 Thana- PIRBAHOR District- Patna
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Moti Ullah @ Md. Matiullah Son of Late Mohi Bullah @ Mohiullah, Resident of Village-Sikandarpur, P.S.-Sikandarpur, District-Balia U.P., at Present Alamganj, Machhua Toli, P.S.-Alamganj, District-patna.

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

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

For the Appellant/s : Mr. Rohit Kumar, Adv.

Mr. Manish Kumar No 13, Adv.

Mrs. Priti Kumari, Adv.

Mrs. Nitu Kumari, Adv.

For the Respondent/s : Mrs. Shashi Bala Verma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 04-08-2023

Heard Mr. Rohit Kumar, learned advocate for

the appellant and Ms. Shashi Bala Verma, learned APP

for the State.

2. The appellant has been convicted under

Section 302 of the Indian Penal Code and has been Patna High Court CR. APP (DB) No.353 of 2017 dt.04-08-2023

sentenced to undergo R.I. for life, fine of Rs. 25,000/-

and in default of payment of fine, to further suffer

imprisonment for three years vide judgment of

conviction and order of sentence dated 15.02.2017 and

by order dated 20.02.2017 respectively passed by

learned Additional District and Sessions Judge-VII,

Patna in Sessions Trial No. 1355 of 2013 arising out of

Pirbahore P.S. Case No. 310 of 2013.

3. The appellant is the husband of the

deceased. The deceased is alleged to have been killed

by a butcher's knife. The occurrence took place in front

of the mother, sister, brother-in-law and other relatives

of the deceased. The FIR has been registered by the

mother of the deceased who has been examined as

P.W.4.

4. In her First Information Report, she has

alleged that on 31.07.2013, the appellant came to her

house and slashed the neck of the deceased by a knife.

She has further alleged in the FIR that though the Patna High Court CR. APP (DB) No.353 of 2017 dt.04-08-2023

appellant was married to the deceased some 22 years

ago, but the relationship between them was always

strained because of the drinking habits of the appellant.

For the last 3 to 4 months, the deceased had come to

stay with P.W.4. The deceased had given birth to five

children out of her wedlock with the appellant. When

the appellant was chased, he ran away and threw the

weapon of assault at the place of occurrence. The son

of the appellant, namely, Faizal, who has not been

examined, chased the appellant. The Informant came

back to the place where the deceased was lying and saw

that she lay lifeless. Many persons of the

neighbourhood had arrived and some of them had seen

the main part of the occurrence also.

5. On the basis of the aforenoted fardbeyan

statement of Sairun Nisa (P.W.4), Pirbahore P.S. Case

No.310 of 2013, dated 31.07.2013 was registered for

investigation under Section 302 of the Indian Penal

Code.

Patna High Court CR. APP (DB) No.353 of 2017 dt.04-08-2023

6. The appellant was arrested on the same day.

The matter was investigated whereafter charge-sheet

was submitted against the appellant who was put on

trial.

7. The Trial Court after having examined nine

witnesses on behalf of the prosecution including the I.O.

and the Doctor (P.Ws. 8 and 9 respectively), convicted

and sentenced the appellant as aforesaid.

8. Mr. Rohit Kumar, learned Advocate for the

appellant has submitted that most of the witnesses who

have been examined at the trial are close relatives of

the Informant and the deceased and they have deposed

against the appellant only because of the strained

relationship between the deceased and the appellant.

He further submits that none of them have seen the

occurrence and their statements before the Trial court

are full of contradictions. It has further been submitted

that the deceased was arrested on the same day which

further pre-supposes that he was innocent and had not Patna High Court CR. APP (DB) No.353 of 2017 dt.04-08-2023

made any efforts to run away. He is said to have been

arrested at Gaighat. Had he committed the murder,

would have made every efforts to run away and not be

a sitting duck to be arrested. The further argument of

the appellant is that the place where the murder took

place is situated on a busy road in a Mohalla where

there are many meat-shops operating. Had the report

regarding the occurrence been true, there would have

been many on-lookers who would have narrated the

correct version. Not bringing them on the witness stand

by the prosecution only reflects that the police has

adopted a short-cut approach of laying the blame on a

estranged husband as it was the easiest thing to do.

With the deceased having left her matrimonial home to

live with her mother is a clear indication of the fact that

the husband and wife did not live well. Under such

circumstances, the relatives of the wife would be more

prone to falsely implicate the appellant as for all

practical purposes, the relationship between them was Patna High Court CR. APP (DB) No.353 of 2017 dt.04-08-2023

snapped at the time when the victim/deceased chose to

leave the matrimonial home and live with her mother.

9. Ms. Shashi Bala Verma, on the other hand,

has submitted that all the witnesses saw the appellant

either killing the deceased or running away or throwing

the dagger nearby, which weapon was immediately

seized by the police, sent for forensic examination and

the serological report confirming that the weapon was

smeared with human blood. This makes the case open

and shut against the appellant who otherwise also had

been misbehaving with the deceased and precisely for

that reason, the deceased had come to stay with her

mother.

10. The Doctor who had conducted the the

postmortem found four injuries on the person of the

deceased, the fatal injury being on the neck which

appeared to have been struck from the sideways,

lending complete credence to the story of the

prosecution that the deceased was butchered like an Patna High Court CR. APP (DB) No.353 of 2017 dt.04-08-2023

animal. The mother, who is the Informant of this case,

kept pleading with the appellant to leave her daughter

but to no avail. The dare-devility of the appellant is

further demonstrated by the way in which he first called

the Informant and handed over a bunch of keys of his

house and said that he is going somewhere else. When

the deceased was coming back home after collecting

milk from the milk booth, she was stopped midway by

the appellant and her neck was slit, leading to her

instantaneous death.

11. We have gone through the entire records of

this case and have found that all the witnesses have

supported the prosecution version in its entirety.

12. Md. Naushad, who is the co-brother of the

appellant, has been examined as P.W.1. He was also

present when the deceased was killed. In his presence,

the appellant threw the knife in a nearby drain and ran

away. In his presence, the inquest report was prepared

and the knife used in the crime was seized. The knife Patna High Court CR. APP (DB) No.353 of 2017 dt.04-08-2023

had blood over it. He has testified to the seizure of the

knife. According to him, the appellant was jobless and

in the past also, he tormented the deceased and her

children. He has denied the suggestion that being a co-

brother, he has falsely alleged against the appellant.

13. Similarly, Md. Ashraf (P.W.2), who is the

brother of the deceased, has claimed to have seen the

appellant running away. He did not see the actual

assault by him.

14. During the course of trial, the aunt of the

deceased, namely, Saheen Parveen (P.W.3) and Md.

Mustaque, a neighbour (P.W.7) have claimed to have

seen the appellant cutting the neck of the deceased and

fleeing away from that place.

15. Md. Arshad, a neighbour, who has been

examined as P.W.6, is though only a hearsay witness.

16. The Informant (P.W.4) has supported the

case in its entirety. No part of her deposition is different

from her version in the FIR and before the police. She Patna High Court CR. APP (DB) No.353 of 2017 dt.04-08-2023

has deposed that the appellant, on the day of the

occurrence, had come to her house and had in a rueful

way given a bunch of keys of Alamganj house to her

and stated that he is going elsewhere. Her

daughter/Ishrat @ Ruhi (deceased), had gone to fetch

milk. The appellant saw the deceased coming to her

home when he caught her and slit her neck. The P.W.4

went to her rescue and also pleaded with the appellant

to spare her daughter but, the appellant was so full of

rage that he did not pay heed to her. He, thereafter,

ran away. Many people came and tried to take the

deceased to hospital but she had died immediately.

Mohalla people had called the police whereafter the

police had come and had seized the weapon as also the

dead body which was sent for postmortem examination.

She has admitted during the cross-examination that the

appellant always fought with the deceased. The eldest

son of the deceased was around 19-20 years of age.

She has denied the suggestion that somebody else had Patna High Court CR. APP (DB) No.353 of 2017 dt.04-08-2023

killed her daughter and because of strained relationship,

she had falsely implicated the appellant.

17. The Investigating Officer who has been

examined as P.W.8 also supported the prosecution

version in its entirety. He has deposed that on receiving

an information that somebody had killed his wife in

Darzi Gali, he recorded a station-diary entry to that

effect and proceeded to the place of occurrence.

Thereafter, he got the inquest report prepared by a

police officer whose handwriting he identified. The

appellant was arrested on the same day from Gaighat

by one Dhananjay Kumar Singh. The Investigating

Officer recognized and proved the handwriting of

aforenoted Dhananjay Kumar Singh on the arrest

memo. All the witnesses had told him that the appellant

was the person who slit the throat of the deceased and

ran away. He has also proved the forwarding report of

the weapon of assault. The report has been exhibited

which confirms that the weapon which was used had Patna High Court CR. APP (DB) No.353 of 2017 dt.04-08-2023

human blood smeared over it.

18. However, we find that the finger print of the

appellant, which was obtained by the Investigating

Officer, was not put to any use. Mere obtaining the

finger print and that being placed on record would not

be of any avail to the prosecution unless it is proved

that the same finger print was available on the butt of

the weapon of assault.

19. However, this lapse on the part of the

prosecution cannot be a ground for rejecting the

prosecution case when there are so many eye witnesses

to the occurrence, all of whom have categorically

asserted that the deceased was killed at the hands of

the appellant. The medical testimony also is in complete

consonance with the prosecution version. It appears

that the other injuries suffered by the deceased was

caused to her while saving herself from the attack.

20. Thus, we find that the Trial court has rightly

convicted and sentenced the appellant, which judgment Patna High Court CR. APP (DB) No.353 of 2017 dt.04-08-2023

requires no interference.

21. The appeal is dismissed.

(Ashutosh Kumar, J)

( Vipul M. Pancholi, J) rishi/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          07.08.2023
Transmission Date       07.08.2023