Md. Tauhid vs The State Of Bihar
2023 Latest Caselaw 2026 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.793 of 2015
    Arising Out of PS. Case No.-236 Year-2009 Thana- FORBESGANJ District- Araria
======================================================

Md. Ashab @ Md. Asahab Son of Late Seraj, Resident of village- Purwari Jhiruwa, P.S.- Simraha, District- Araria

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 782 of 2015 Arising Out of PS. Case No.-236 Year-2009 Thana- FORBESGANJ District- Araria ====================================================== Md. Tauhid Son of Sheikh Iqbal Ekbal Resident of Village - Purwari, Jhiruwa, P.S. - Simraha, District - Araria.

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

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

(In CRIMINAL APPEAL (DB) No. 793 of 2015) For the Appellant/s : Mr.Viveka Nandsingh, Adv. Amicus Curiae : Ms. Archana Palkar Khopde, Adv. For the Respondent/s : Mr.Mayanand Jha App (In CRIMINAL APPEAL (DB) No. 782 of 2015) For the Appellant/s : Ms. Surya Nilambri, (Amicus Curiae) For the Respondent/s : Mr. S.B.Verma, App ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 01-05-2023

1. Heard Mr. Vivekanand Singh, the learned

Advocate for the appellant in Criminal Appeal (DB)

No. 793/2015. Ms. Archana Palkar Khopde, who Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

had been appointed as Amicus has also been heard

for the appellant Md. Ashab @ Md. Asahab. Ms.

Surya Nilambri, the learned Advocate has assisted

this Court in Criminal Appeal (DB) No. 793/2015

for the appellant / Md. Tauhid. The State is

represented by Mr. Mayanand Jha, the learned

APP.

2. Both the appellants stand convicted vide

judgment dated 14.07.2015 passed by the learned

1st Additional Sessions Judge, Araria in Sessions

Trial No. 948/10 / Trial No. 41/15 for the offence

under Sections 302/34 of the Indian Penal Code

and by order dated 16.07.2015, they have been

sentenced to undergo R.I. for life, to pay a fine of

Rs. 20,000/- in default of which, they have been

directed to undergo further Simple Imprisonment

for one year.

3. The appellants are alleged to have killed the

deceased/Maulana Asgar only for his fault of Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

having flashed a torch-light which had momentarily

blinded them.

4. The case was lodged by the father of the

deceased, namely, Md. Abdul Aziz, who has been

examined as PW5 in this case. In his fardbeyan,

he has alleged that on 27.07.2009, he along with

one of his sons, namely, Maulana Asgar (deceased)

had gone to the filed at about 5.00 P.M. and while

returning, he further asked his son to go back

home and wait for him and that he would, in the

meantime, tend his cattle back to home. When

some time was consumed by his father, the

deceased came in search of him with a torch-light.

They met each other in front of Amna Public

School, a local school in the village, when the

deceased is said to have flashed the torch to

identify the informant. In the meantime, some of

the persons, who were coming from the other

direction including the appellants appeared to have Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

been blinded by the torch-light flashed by the

deceased, which was the flash point between the

accused persons especially the appellants and the

deceased. According to the First Information

Report, no sooner was the torch light flashed by

the deceased, appellants/Tauhid and Ashab abused

him, dashed him to the ground and started

assaulting him. The deceased in order to save

himself rushed inside the school but was chased by

the afore-noted two appellants. The deceased was

shortly overpowered and both the appellants then

inflicted dagger and knife blows on him. The

informant kept on raising alarm which attracted the

attention of the villagers, who came immediately

and caught appellant / Md. Tauhid. Md. Ashab

and others any how managed to escape.

Simultaneously but surprisingly, the police also

arrived at the place of occurrence and nabbed

appellant / Md. Tauhid whereafter a case vide Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

Forbesganj (Simraha) P.S. Case No. 236/09 was

registered against the appellants and others.

5. It further appears from the record that the

torch which was used by the deceased was

recovered from the place of occurrence. The

appellant / Md. Tauhid was interrogated, who

confessed his guilt and on the basis of his

confession, there was recovery of the weapon used

in the assault which was found to be wrapped in a

yellow T-shirt and a bicycle at some distance from

where the occurrence had taken place over which

the name of appellant /Md. Tauhid was inscribed.

Later, appellant / Md. Ashab was also arrested.

6. Chargesheet was submitted against them

whereafter cognizance was taken and the case was

committed to the court of Sessions for trial.

7. It further appears that the Trial Court

examined seven witnesses in all including the

Investigating Officer as PW6 and the Doctor, who Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

had conducted the autopsy on the deceased as

PW7.

8. The informant (PW6), who is the father of

the deceased deposed before the Trial Court that

because of the torch-light falling on the faces of

appellants/ Md. Tauhid and Md. Ashab, who were

accompanied by two more persons, who were not

identifiable by him, his son was abused and

assaulted. In his deposition, he has stated that the

afore-noted two appellants had forced the

deceased to get inside the school where he was

assaulted by knife leading to his death. On hulla

raised by him, people of the vicinity arrived and

caught hold of the appellant / Md. Tauhid but could

not catch appellant / Md. Ashab, who could

manage to run away. He had given his statement

at the place of occurrence when the police had

arrived. With respect to the place of occurrence,

he has clearly stated that only on the western side Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

of the school is there some habitation whereas

other sides are all vacant land meant for

agriculture. Even in the school, there are only three

thatched houses. In the same breadth before the

Trial Court, the PW5 has deposed that while his

son was being assaulted, he did not shout but kept

on imploring the accused persons not to assault his

son. Only when the deceased was dashed on the

ground inside the school campus, did he raise hue

and cry, when the villagers had arrived. The

informant (PW5) could clearly see that the

appellant /Md. Tauhid had given four blows by his

weapon whereas appellant /Md. Ashab gave three

blows to the deceased.

9. Md. Shamim and Md. Owais, who are related

to the informant and the deceased and who were

not named by PW5, have been examined as PW1

and PW2 in this case. Both of them claimed to

have reached the place of occurrence on the cry Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

and summons by the informant (PW5). While they

had reached the place of occurrence, the fight was

on and the deceased was almost decapitated but

was alive. With theirs and others support,

appellant/Md. Tauhid was detained whereas the

appellant / Md. Ashab and two others could

manage to escape.

10. Similar is the statement of PW4/Md.

Israil, who also is related to the informant.

11. None of these persons were named by

the appellant when he got his fardbeyan recorded.

It was only later in his deposition before the Court

that PW5 named PW1.

12. Md. Shamim (PW1) claimed before the

Trial Court that he runs a provision Shop at his

own house which is situated at a distance of about

one kilometer from the place of occurrence and

that he could reach the place of occurrence on

hearing the voice of his uncle / PW5, within a Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

minute.

13. Md. Owais (PW2), who is one of the

cousins of PW5, who claims to be sitting along with

PW1 at his Shop also came at the place of

occurrence shortly after Md. Shamim (PW1).

Whereafter others also came.

14. The Investigating Officer, who has been

examined as PW6, as noted above, has stated

that he could seize the torch and blood stained

lathi and had prepared a seizure list (Ext. 3). Md.

Kamal and Md. Afzal, the two of the witnesses

who are the signatories to the seizure list have not

been examined at the trial. He had received

information on telephone that one person has been

injured by knife blows. On this information, he had

proceeded to Amna Public School where he found

one person dead and thereafter recorded the

statement of PW5, which was the basis for

initiating the criminal case against the appellants. Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

After recording the F.I.R., one black coloured

torch, blood stained lathi, blood stained earth and

a bicycle were also seized for which seizure list was

prepared. He has further deposed before the Trial

Court that Md. Tauhid, one of the appellants, who

was caught by the villagers, was formally arrested

and his confession was recorded.

15. On the basis of the afore-noted

confession, PW6 is stated to have gone to a nearby

bamboo clumps from where the weapon of assault,

namely, the blood stained dagger and a blood

stained yellow T-shirt was seized (Ext. 5). Over

that seizure report also, one Kamaluddin and Md.

Afzal Hussain have put their signature but as

stated above, the afore-noted two persons have

not been examined before the Court. The place of

occurrence on being examined by the I.O. was

found to be a public school standing in isolation.

Habitation was only towards the western side of Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

the school; whereas all the sides were vacant

agricultural field. PW6 is also said to have

examined Kamaluddin, Afzal, Anwarul, Ibadat

apart from Pws 1 to 4 and one Nagina Khatun,

who is the wife of the deceased. The dead body

was kept at the same place in the night and a

Constable was put In-charge of the dead body. It

was sent for postmortem only on the next day and

the postmortem was conducted at 11.00 A.M.

16. In his cross-examination, PW6 (I.O.)

has stated that he reached the place of occurrence

at about 10.00 P.M. He had met the informant

outside the school. At the time of recording of the

fardbeyan, approximately 4 to 5 persons were

available including Nagina Khatun, the wife of the

deceased and Kamaluddin and Afzal. The torch

which was recovered from near the dead body was

not put on test identification and on his enquiry, it

was found that the torch belonged to the accused. Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

Md. Nazrul (PW3) had told him that the torch

belonged to Md. Tauhid. He did not send the blood

stained lathi or the weapon for forensic

examination. Even the inquest report is stated to

have been prepared on the next day. Obviously,

no finger print also was taken about which it has

been explained that such facility was not available.

17. Mr. Vivekanand Singh, the learned

Advocate assisted by Ms. Khopade (Amicus)

appellant / Md. Ashab and Ms. Surya Nilambari,

the learned Advocate for appellant/Md. Tauhid

have stated that the prosecution has not been able

to prove the case beyond all reasonable doubts.

They have submitted that it was rather unusual for

PW5 (informant) not to have named his own

relatives, namely, Pws 1, 2 and 4, who had come

on his call and who had helped nab the appellant /

Md. Tauhid. A general statement has been made

by PW5 that on his call, many villagers arrived. It Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

has further been urged in defense of the appellants

that there was no means of identification and the

only known means possibly was the torch carried

by the deceased who had flashed it in order to see

his father (PW5) but which offended the accused

persons including the appellants, which was the

trigger-point for the skirmish and ultimate death of

the deceased. Somehow or the other, the learned

Advocates have stated, the torch used by the

deceased was never seized. The seized torch,

according to PW6, was of appellant / Md. Tauhid.

It has further been argued that the whole story

appears to be doubtful. There is no reference of

the reason for the presence of the appellants at

about 8 'O' Clock in the night near the school

where there was no habitation. It has also not

come during the course of Trial that the appellants

were residing nearby or they were returning back

to their homes. It is really surprising that only four Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

persons closely associated with the informant and

deceased came and caught one of the appellants.

18. The other point of doubt with respect to the

correctness of the prosecution version is that if at

all, one of the appellants was caught in -flagrante

delicto, where was the occasion for him to have

hidden his weapon of assault in a bamboo clump,

situated at some distance. The evidence does not

indicate that he was allowed to have a run for

some distance where he could have shed his

weapon. Where was the occasion for either the

deceased or the accused persons including the

appellants to have shed their clothes as according

to the prosecution version, one blood stained

yellow T-shirt was also found near the place of

occurrence. Whose was this apparel is not known.

Even otherwise, such blood stained articles which

were seized, were neither sent for chemical

examination nor exhibited. There is no statement Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

of Nagina Khatun, who was an aggrieved person

and should have come before the trial court to

depose. PW6 had found her present at the place

of occurrence when he had visited the place and

had arrested the appellant/ Md. Tauhid.

19. The Learned advocate for the State,

however, submits that the occurrence took place in

front of the father of the deceased, who not only

tried to intercede with the accused persons to

spare his son but also raised hulla which brought in

the other prosecution witnesses and it was only

because of their active assistance that one of the

appellants could be apprehended. It has further

been argued that there is nothing in the statement

of P.Ws.1 and 2, which is at variance with the

prosecution version as narrated in the fardbeyan of

P.W.5 or his deposition in court. It is quite natural,

it has been argued, for P.Ws.1 and 2 to have

arrived at the place of occurrence. Every cry of Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

distress is in the nature of summons to relief. If

the cry is of a relative, it is all but natural to arrive

at the place from where the cry has come.

20. The advocate for the State has also

argued that even though P.W.3 has been declared

hostile but on major particulars of the prosecution

version, he has not departed from the main story

line and, therefore, his deposition cannot be

completely effaced from the record. He may have

stated that the appellant/Md. Ashab has a good

record in the village but that does not take away

his guilt of killing the deceased. With respect to the

motive, the State has argued that motive is not

relevant as an occurrence can take place with

slightest of the motives. The prosecution, it has

been urged, has been able to prove the genesis of

the occurrence viz. lighting of the torch on the face

of the accused persons who were also travelling in

opposite direction which blinded them momentarily Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

causing annoyance to them. Howsoever weak this

motive is, but it was the trigger point which started

the fight between the accused persons and the

deceased.

21. As opposed to the aforenoted

contention of the State, Ms. Surya Nilambri, the

learned amicus curiae for the appellant/Md.

Tauhid, has stated that it is rather surprising that

without any premeditation, in the dead of the

night, the appellants would be armed with dagger.

She has further submitted that a holistic reading of

the deposition would clearly spell out that the

deceased died in some occurrence about which

nothing is known and for some reason or the other,

the appellants have been made accused or else

even the appellant/Md. Ashab would have been

nabbed by the villagers and the P.W.s who came in

support of the prosecution version. If the appellant

Md. Tauhid who was armed with a knife could be Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

detained by the villagers, there was no reason why

the appellant/Md. Ashab would have been left to

go. She has further submitted that the suggestions

given to the prosecution witnesses, though only in

the nature of suggestions, was completely brushed

aside. There could have been a possibility of the

deceased having been assaulted by family

members of his wife with whom the deceased had

eloped, to the chagrin of her family members. This

aspect was never investigated. The wife of the

deceased not coming to the dock to depose further

adds to the confusion, especially when, according

to the P.W.6, she was present at the place of

occurrence. Who called her; how far is the house

of the deceased and the informant from the place

of occurrence, also remains unknown.

22. After having heard the learned counsel

for the parties, we find that though PW5 has tried

to support the prosecution version but the wedges Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

and chinks in his evidence is too wide to be

believed. The distance of the shop and home of

PW1 is 1 Km. It is really doubtful whether the cry

raised by PW5 would have reached the ears of

PWs.1 and 2 who were sitting in the kirana shop

without any customer. Their arrival at the place of

occurrence within one minute and that also when

the mode of travel is not know, is rather difficult to

digest. In any view of the matter, if at all the

deceased at that time had been surviving, there

should have been some effort of rendering medical

aid to him, more so, when many persons of the

neighbourhood had arrived. It does not appear to

be logical that those villagers, most of whom are

relatives of the informant and the deceased, would

allow the deceased to pass-off because of the

injuries suffered by him. The injuries are not in the

nature of a complete slit of the throat or of the

jugular so as to accept the fait accompli. Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

23. How was the appellant/Md. Ashab arrested or

when did he come back on the radar is not known.

No enmity appears to have been demonstrated in

the entire records of the case between the

deceased and the informant and the appellants.

What is rather striking is that the appellant/Md.

Tauhid was arrested by the villagers and was

handed over to the police. However, his weapon of

assault, a blood stained dagger and an apparel viz.

yellow T-shirt was found at a distance, which is

claimed to have been discovered to be admissible

under Section 27 of the Evidence Act only on the

showing of the appellant/Md. Tauhid. When did he

get time to leave all that at a distance for the

purposes of concealing the same. The I.O. not

having taken care of sending the weapon and the

apparel as well as the blood stained soil for

forensic examination completely demolishes the

correctness of the prosecution version. Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

24. A suggestion has come during the

course of trial that the appellant/Md. Tauhid was

handed over to the police after the Mukhiya of the

village had arrived.

25. What was the reason for not holding the

inquest after recording the FIR, which was done

only on the next day before the autopsy.

26. It is difficult to accept the statement of PW5

when he gives a graphic description of

appellant/Md. Tauhid having assaulted the

deceased four times and appellant/Md. Ashab

having inflicted knife blow thrice on the deceased,

when the only source of identification which has

been explained was the torch carried by the

deceased. Was it kept lighting or was used by the

PW5 to identify and witness the occurrence? The

informant not having named PWs 1 and 2 in the

FIR also assumes significance.

27. Thus, we find that the prosecution has not Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

been able to prove the case beyond all reasonable

doubts.

28. There are many missing links. Only because

PW1, who is the father of the deceased claims that

he saw the occurrence, that by itself would not

absolve the prosecution from discharging its

burden of proving the case beyond all reasonable

doubt.

29. The cause of the injuries on the deceased

which ultimately led to his death thus remains a

mystery.

30. The appellants are required to be given the

benefit of doubt and we do give them such benefit.

31. For the reasons noted above, the appeals are

allowed.

32. The impugned judgment of conviction dated

14.07.2015 and the consequent order of sentence

dated 16.07.2015 passed by the learned 1 st

Additional Sessions Judge, Araria are, accordingly, Patna High Court CR. APP (DB) No.793 of 2015 dt.01-05-2023

set aside.

33. The appellants, namely, Md. Ashab @ Md.

Asahab (Cr. Appeal (DB) No. 793 of 2015) and

Md. Tauhid (Cr. Appeal (DB) No. 782 of 2015) are

acquitted of the charges levelled against them.

They shall be released from the jail forthwith

unless they are required in any other case.

34. The Patna High Court, Legal Services

Committee is, hereby, directed to pay Rs. 5000/-

each to Ms. Archana Palkar Khopde and Ms. Surya

Nilambari, learned amicus curaie, as a consolidated

fee for the services rendered by them.

                                                (Ashutosh Kumar, J)


                                                   ( Harish Kumar, J)
sunil/-rohit
AFR/NAFR                  AFR
CAV DATE                  N/A
Uploading Date            05.05.2023
Transmission Date         05.05.2023