Md. Guddu Sah @ Guddu Sah @ Guddu ... vs The State Of Bihar
2023 Latest Caselaw 2508 Patna

      IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.736 of 2022
      Arising Out of PS. Case No.-292 Year-2019 Thana- BELAGANJ District- Gaya
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Md. Guddu Sah @ Guddu Sah @ Guddu Shah, Son of Khalil Shah, Resident of Village-Laxmipur, P.S- Belaganj, District- Gaya ... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== Appearance :

For the Appellant/s : Mr. Tabish Sharfuddin, Advocate For the Respondent/s : Mr. Satya Narayan Prasad, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA) Dated : 19-05-2023

The present appeal is preferred challenging the

judgment dated 22.08.2022 and order of sentence dated

26.08.2022 passed by the learned Additional District and

Sessions Judge-III, Gaya in Sessions Trial No.4 of 2020 arising

out of Belaganj P.S. Case No.292 of 2019 convicting the

appellant under Section 302 read with 34 of the Indian Penal

Code (for short 'IPC'), where appellant/convict was sentenced

for life imprisonment and to pay a fine of Rs.5,000/- and in

default, to undergo further imprisonment of one year.

2. The factual matrix of this case, as it springs from

the written report of informant (P.W.-1), Safina Khatoon that

marriage of her daughter Soni Khatoon (deceased) was Patna High Court CR. APP (DB) No.736 of 2022 dt.19-05-2023

solemnized with Guddu Shah (appellant/convict), S/o Khalil

Sah of village-Laxmipur, P.S.-Belaganj, District-Gaya before

nine years as of now as per Muslim Customary Rites and

Rituals. It is alleged thereof that appellant/convict, who is the

husband of deceased along with other family members, i.e.

father-in-law, namely, Khalil Shah, mother-in-law, namely,

Maimun Khatoon, brother-in-law, namely, Saddam Shah and

sister-in-law, namely, Juhi Khatoon collectively tortured her

daughter and also alleged for physical assault. They also

threatened her to kill. She came to know on 16.08.2019 at about

2:00 p.m. through villagers that her daughter was killed by her

in-laws. On said information, she arrived at village-Laxmipur,

where she found her daughter dead as a result of collective

assault caused by above-named accused persons.

3. On the basis of aforesaid written information of

P.W.-1, Belaganj P.S. Case No.292 of 2019 was instituted on

16.08.2019 under Section 302 read with 34 of the IPC against

appellant/convict along with other co-accused persons, where

police after investigation submitted charge-sheet vide Charge-

sheet No.270 of 2019 dated 12.11.2019 under Section 302 read

with 34 of the IPC.

4. The learned Jurisdictional Judicial Magistrate after Patna High Court CR. APP (DB) No.736 of 2022 dt.19-05-2023

taking note of materials collected during course of investigation,

took cognizance under Section 302 read with 34 of the IPC

against the appellant/convict and committed the case to the

court of sessions for trial.

5. Upon commitment, the learned trial Court taking

note of the materials available on record, framed charge against

the appellant/convict along with other co-accused persons

facing trial, (who are not appellant before this Court) under

Section 302 read with 34 of the IPC, which was duly explained

to them where appellant/convict plead "not guilty" and claimed

for trial.

6. After conclusion of trial, the learned trial court

found the appellant/convict guilty of the offence punishable

under Section 302 read with 34 of the IPC, where he was

sentenced to undergo imprisonment for life along with fine of

Rs.5,000/- and in default, to undergo further imprisonment of

one year.

7. Aggrieved thereof, the appellant/convict preferred

present appeal. Hence, the present appeal.

8. The prosecution in support of its case examined

altogether six witnesses. They are P.W.-1, namely, Safina

Khatoon, who is the informant of this case, P.W.-2, namely, Patna High Court CR. APP (DB) No.736 of 2022 dt.19-05-2023

Izrael Shah, who is the maternal uncle of deceased Soni

Khatoon, P.W.-3, namely, Md. Shagir Shah, P.W.-4 is Md.

Danish, P.W.-5 is Dr. Purnendu Shekhar and P.W.-6 is Arun

Kumar Singh, who is the Investigating Officer of this case.

9. The prosecution has also relied upon following

exhibits to substantiate its case:-

(1) Exhibit No.-1 Postmortem report of the deceased.

         (2) Exhibit No.-2          Written information of the informant (P.W.-1)

         (3) Exhibit No.-3          Inquest report.

         (4) Exhibit No.-4          Charge-sheet

         (5) Exhibit No.-5          FSL report

10. By taking note of the evidences available on

record, the statement of the appellant/convict was recorded

under Section 313 of the Code of Criminal Procedure (for short

'CrPC') by stating him about all the incriminating

circumstances where he stated about false implication and

shows his complete innocence.

11. No witness was examined in defence by the

appellant/convict during the trial.

ARGUMENT ON BEHALF OF LEARNED COUNSEL APPEARING ON BEHALF OF THE APPELLANT/CONVICT :

12. It is submitted by learned counsel appearing on

behalf of the appellant/convict that out of six prosecution Patna High Court CR. APP (DB) No.736 of 2022 dt.19-05-2023

witnesses, P.W.-1, who is the informant and mother of the

deceased, namely, Safina Khatoon declared hostile during the

trial. Similarly, P.W.-2, who is the maternal uncle of the

deceased and P.W.-3, who is not the relative but, known to the

family of the deceased also turn hostile during trial. It is

submitted that though P.W.-4 was not declared hostile but, he

failed to disclose anything regarding complicity of the

appellant/convict qua crime in question. It is also submitted that

mere on the basis of surmises and conjectures and by taking

note of Section 114 and provision of 106 of the Indian Evidence

Act as regard to special knowledge, appellant was convicted in

the present case for the simple reason that as occurrence took

place in his home and he is the husband of the deceased,

namely, Soni Khatoon. It is submitted that as per deposition of

P.W.-5, who is the doctor, cause of death not appears

ascertained for which viscera etc. of deceased were preserved

and sent for FSL report. It is also submitted that FSL report,

which is Exhibit No.-5 is not supporting the presence of any

poisonous substance. While concluding argument, it is also

submitted that nothing appears from the deposition of

Investigating Officer of this case, who is P.W.-6 that the dead

body of the deceased was recovered from the house of the Patna High Court CR. APP (DB) No.736 of 2022 dt.19-05-2023

appellant/convict and moreover any presumption can be

imported only after establishment of the case by the prosecution

prima facie. Law of presumption which is the basis of

conviction in this case is not to secure the conviction by diluting

the basic burden of prosecution to prove its case beyond

reasonable doubt.

ARGUMENT ON BEHALF OF LEARNED COUNSEL APPEARING ON BEHALF OF THE RESPONDENT-STATE:

13. Learned APP while supporting the conviction of

the appellant submitted that in this type of occurrence, the eye-

witness is rare as offence generally committed within four-

corners of secured house. It is submitted that appellant is the

husband and he is bound to explain that how his wife died. It is

submitted that from the deposition of P.W.-5 and also taking

note of postmortem report (Exhibit No.-1) of the deceased,

namely, Soni Khatoon, it appears that death not appears in

normal course. There is no history of previous illness also.

14. We have perused the records carefully and gone

through the evidences available thereof. We have also heard

arguments carefully so advanced by learned counsel appearing

on behalf of the parties.

15. From bare perusal of the deposition of P.W.-1,

who is the informant of this case and mother of the deceased, it Patna High Court CR. APP (DB) No.736 of 2022 dt.19-05-2023

appears that she denied the occurrence in totality and declared

hostile during the trial. Nothing substantial surfaced in her

cross-examination by learned APP, which may be taken note as

a corroborative piece of evidence qua crime in question rather

on cross-examination on behalf of the accused persons

including appellant, she deposed before the trial court that

appellant/convict never assaulted or tortured her deceased

daughter. She deposed subsequently, that she is an illiterate

person and she came to know about the death of her daughter

as she was told over telephone by villagers.

16. P.W.-2 is the maternal uncle of the deceased and

he also turned hostile. Nothing substantial surfaced in his

cross-examination by learned APP, which may be taken note as

a corroborative piece of evidence rather on his cross-

examination by accused persons he deposed that the deceased

was in good relation with all family members of her

matrimonial home and she never complained about anyone. It

was deposed by him that the illness of deceased was informed

by her in-laws but, they failed to reach there. He categorically

deposed that accused persons including appellant/convict have

no role in crime in question.

17. P.W.-3 is Md. Shageer Shah, who also turned Patna High Court CR. APP (DB) No.736 of 2022 dt.19-05-2023

hostile by denying the case of the prosecution in totality where

on cross-examination by learned APP, nothing appears

substantial in his deposition which may be used as a

corroborative piece of evidence qua crime in question

regarding involvement of appellant/convict rather on cross-

examination on behalf of the appellant, he deposed that

deceased was very happy with her husband (appellant/convict)

and in-laws. It is stated further that deceased never complained

about any one. It also deposed that they were informed about

the illness of the deceased by her in-laws, who also provided

medical treatment to her. He denied any suspicion against

appellant/convict.

18. P.W.-4 is Md. Danish, who was not declared

hostile during the trial, deposed in his examination-in-chief, in

Para-1, that it is not in his knowledge that how the wife of the

appellant Guddu Shah was died. Though, he deposed in Para-2

that as it was love marriage, the parents of the

appellant/convict usually tortured the deceased. In para 3 of

his examination-in-chief, he categorically stated that he knows

nothing about occurrence. In cross-examination on behalf of

the accused persons, he deposed that the appellant/convict was

a caring husband. He never heard any complaint about him. He Patna High Court CR. APP (DB) No.736 of 2022 dt.19-05-2023

categorically deposed that he came to know that cause of death

of wife of appellant was her illness. It is also deposed by him

that in-laws of deceased were participated in last customary

rites of the deceased. From perusal of deposition of P.W.-5, Dr.

Purnendu Shekhar, it appears that death of deceased was

caused due to shock and asphyxia, which appears to be as a

result of mechanical obstruction by soft object to external air

passages viz. mouth and nostrils i.e. smothering. P.W.-6, Arun

Kumar Singh, who is the Investigating Officer of the case.

Though, he described the place of occurrence but, he failed to

depose that dead body was found inside the house of

appellant/convict. He identified endorsement on FIR of S.H.O.

Avinash Kumar, which was exhibited as Exhibit No.-2 and

also A.S.I. Jyotindra Kumar on inquest report of the deceased,

which on identification before the trial court exhibited as

Exhibit No.-3. He identified his signature and handwriting on

Charge-sheet No.270 of 2019 dated 12.11.2019, which on his

identification before the trial court exhibited as Exhibit No.-4.

On his cross-examination, he deposed that no weapons were

recovered from place of occurrence and no mark was found

upon neck of deceased as per inquest report.

19. It would be appropriate to discuss Para-13 of legal Patna High Court CR. APP (DB) No.736 of 2022 dt.19-05-2023

report as reported in the matter of Tunu Urang v. State of

Assam [2019 SCC online GAU 5528] as follows:-

"13. In a criminal trial burden is always on the prosecution to prove the guilt of the accused beyond reasonable doubt and section 106 of the Evidence Act is not intended to relieve the prosecution of its burden. Only when prosecution proves certain fact from which reasonable inference can be drawn regarding certain other facts, which unless explained by the accused by virtue of his special knowledge, tend to inculpet the accused, in such circumstance the accused owe an explanation, otherwise section 106 of the Evidence Act does not put any burden on the accused to prove his innocence. In the present case evidently prosecution has not been able to prove any fact, from which an adverse inference could be drawn to attribute culpability to the appellant, in absence of any explanation. As already indicated above, the findings of the learned trial court, that the deceased was found with the appellant in his house was perverse. Once, this findings is discarded, there is no other materials on record to attribute any special knowledge to the appellant in respect of the death of the deceased".

20. It is well-settled in law that Section 106 of the

Indian Evidence Act is not a substitute for the burden of proof

that rest upon the prosecution as discussed in the matter of

Shambhu Nath Mehra v. State of Ajmer [AIR 1956 SC404].

21. As far circumstantial evidence is concerned, as Patna High Court CR. APP (DB) No.736 of 2022 dt.19-05-2023

there is no eye witness in this case, the settled law is that the

circumstances must be of such nature from which the

conclusion of guilt is drawn should be fully proved and

circumstances taken into consideration must be conclusive in

nature suggesting that none else than accused committed the

crime, as held in C. Chenga Reddy and Others v. State of

Andhra Pradesh [AIR 1996 SC 3390].

22. It is well settled law as reported in the matter of

Raj Kumar Singh vs. State of Rajasthan [(2013) 5 SCC

722] that no accused should be convicted on the evidences

which "may prove his guilt" without having evidence which

"must prove the guilt" of the accused.

23. By importing the above discussed legal ratio in

present facts and circumstances, it appears that the informant

is not the eye-witness of the occurrence, who turned hostile,

who was none but the mother of the deceased. P.W.-2 and 3

have also turned hostile. P.W.-4 though not declared hostile

but, he specifically deposed in his cross-examination that he

nothing knows about crime in question and, as such,

implication which is based upon circumstantial evidence for

the reason that as death is appearing prima facie homicidal in

nature and as dead body of deceased was recovered from the Patna High Court CR. APP (DB) No.736 of 2022 dt.19-05-2023

house of the appellant, who is husband is not appearing

convincing under exclusive note of Section 106 of the Indian

Evidence Act.

24. Accordingly, the present appeal is allowed.

25. The impugned judgment of conviction dated

22.08.2022 and order of sentence dated 26.08.2022 passed by

the learned Additional District and Sessions Judge-III, Gaya in

Sessions Trial No.4 of 2020 arising out of Belaganj P.S. Case

No.292 of 2019 is set aside.

26. Appellant Md. Guddu Sah @ Guddu Sah @

Guddu Shah, who is in custody, is acquitted of the charges

levelled against him. He is directed to be released from

custody forthwith, if not required in any other case.

27. It is further directed that fine, if any, paid in terms

of order of sentence be returned to the appellant immediately.

(A. M. Badar, J.)

(Chandra Shekhar Jha, J.) Sanjeet/-

AFR/NAFR                NAFR
CAV DATE                15-05-2023
Uploading Date          19-05-2023
Transmission Date       19-05-2023