Patna High Court
Khushnuma Khatoon vs The State Of Bihar on 24 January, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.352 of 2017
Arising Out of PS. Case No.-291 Year-2014 Thana- BARHARIA District- Siwan
======================================================
1. Saddam Hussain @ Samir Raja, son of Sahebjan Miyan @ Md Sahabj.
2. Khushnuma Khatoon, Wife of Saddam Hussain, Both Resident of Village-
Babuhata, P.S. Barharia, District- Siwan.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 405 of 2017
Arising Out of PS. Case No.-291 Year-2014 Thana- BARHARIA District- Siwan
======================================================
Khushnuma Khatoon Wife of Saddam Hussain @ Samir Raj, resident of
village - Babuhata, P.S. Barhariya, District - Siwan
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 352 of 2017)
For the Appellant/s : Mr. Amir Alam, Advocate
For the Respondent/s : Mr. Satya Narayan Prasad, APP
(In CRIMINAL APPEAL (DB) No. 405 of 2017)
For the Appellant/s : Mr. Anil Chandra, Advocate
For the Respondent/s : Mr. Satya Narayan Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE NANI TAGIA
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
2/18
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 24-01-2024
1. We have heard Mr. Amir Alam, the
learned Advocate for the appellants/Saddam Hussain @
Samir Raja and Khushnuma Khatoon in Cr. Appeal (DB)
No. 352 of 2017 and Mr. Anil Chandra, the learned
Advocate in Cr. Appeal (DB) No. 405 of 2017. The
State has been represented by Mr. Satya Narayan
Prasad, the learned APP.
2. The couple/appellants who are alleged
to have kidnapped the victim/Abu Bakar for the
purposes of ransom and then strangulated to death and
his dead body was concealed in a drain.
3. For the afore-noted charge, the
appellants have been convicted under Sections 363,
364, 364A and 302/34 of the Indian Penal Code vide
judgment dated 24.01.2017 passed by the learned 5 th
Additional Sessions Judge, Siwan in Sessions Case No.
115 of 2015 (Reg No. 71 of 2015), arising out of
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
3/18
Barharia P.S. Case No. 291 of 2014. By order dated
02.02.2017
, the appellants have been sentenced to
undergo R.I for life and to pay a fine of Rs. 1,00,000/-
each for the offence under Section 302 of the IPC and
R.I. for life and to pay a fine of Rs. 1,00,000/- each
again for the offence under Section 364A of the IPC.
No separate sentence has been awarded under Sections
363 and 364 of the IPC. In case of default of payment
of fine, each of the appellants have been directed to
undergo R.I. for two years. Eighty (80) percent of the
amount of fine has been directed to be paid to the
parents of the deceased, who are the actual victims of
the occurrence.
4. The sentences have been directed to
run concurrently.
5. The FIR was lodged by the mother of
the deceased, viz., Noor Jahan Khatoon (P.W. 3) which
was recorded at 10.00 P.M. in the night of 18.07.2014.
6. P.W.3 has alleged that on the same
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
day, at about 04:30 P.M., she had received a telephone
call from mobile no. 9934449363, apparently from her
niece, viz., Gulshan, who wanted the deceased/Abu
Bakar, aged about nine years, to be sent with an
umbrella to pick her up as it had been raining. Without
verifying any further and showing extreme gullibility,
P.W. 3 is said to have sent her son with an umbrella to
bring Gulshan. When the son (deceased) of P.W. 3 did
not return for quite some time, she grew suspicious.
However, at about 07:45 P.M., another telephone call
came from the same number, viz., 9934449363, but
then this time, there was a male voice on the other
side, commanding that Rs. 8,00,000/- be paid by the
family for securing the release of her son. Because of
the rains, neither P.W. 3 nor P.W. 2 (her husband)
went to the police station, but chose to visit the place
where the son had been sent to bring Gulshan. Local
persons available there informed them that a young
male with a veiled female had taken away a 12 year old
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
child on a motorcycle. On this information, the police
was informed about the occurrence at about 10:00 P.M.
when the fardbeyan of P.W. 3 was recorded by one
Daya Shankar Prasad (P.W. 7), the Officer-in-Charge of
the police station.
7. Be it noted that the fardbeyan was
scribed by one Suraj Singh, who has not been examined
at the Trial. One Imamul Haque (not examined) was
the witness to the fardbeyan statement.
8. On such statement, initially a case
under Sections 363 and 364A was registered for
investigation vide Barharia P.S. Case No. 291 of 2014,
dated 19.07.2014. Later, i.e. on 22.07.2014, Sections
302/201 were added after the dead body was
recovered some time on 19.07.2014.
9. The fulcrum of the prosecution case is
the investigation with respect to the mobile telephone
number which was used, firstly by somebody
masquerading as Gulshan and then seeking ransom
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
amount of Rs. 8,00,000/- from the parents of the
deceased.
10. The C.D.R. (Call Detail Record) and the
S.D.R. (Software Define Radio) was called for by the
Investigator. On the analysis of the reports, the
investigator immediately reached to one Maimunnisa,
said to be the mother of appellant/Saddam, from whom
a mobile telephone bearing no. 8002545019 was
recovered. This telephone number would not have been
of any consequence but for the fact that on this
telephone number, there had been several calls from
the number which was used for the ransom call, viz.,
9934449363. The frequency of the calls on the
telephone number of Maimunnisa provided the smoking
gun to the police to go to the house of one Laxman Deo
Mishra in Bhawani Bazar from where also, two mobile
telephones were recovered, about which no reference is
required to be made because those mobile numbers
were perhaps never used in the commission of the
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
crime.
11. However, from the C.D.R. of the afore-
noted two mobile numbers recovered from the house of
Laxman Deo Mishra, it was deciphered (but how, which
remains unknown to us) that the ransom call was made
from 9934449363, which number was being used to
talk with the holder of telephone no. 8002549019,
which was recovered from the mother of
appellant/Saddam.
12. During the course of further
investigation and search, a black coloured veil and a
Hero Honda Passion motorcycle was recovered from the
house of Laxman Deo Mishra, for which a seizure list
was prepared. The telephone no. 9934449363 from
which the ransom call was made stood in the name of
one Aisha Khatoon, about whose relationship with the
appellants remains unknown till date.
13. Based on these sporadic telephone call
records, very curiously, the Investigator jumped to the
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
conclusion that it was the appellant/Saddam and his
wife/Khushnuma who had managed to get the deceased
out of his house; kidnapped him; demanded ransom
and ultimately killed him and concealed his dead body
which apparently is said to have been recovered by the
police on 19.07.2014 only from near a water body,
from a place at about 3 Kms. from the house of the
appellants.
14. Based on the afore-noted evidence, the
appellants were charge-sheeted and were put on Trial.
15. The Trial Court after having examined
eight witnesses on behalf of the prosecution including
the Doctor and the I.O., convicted and sentenced the
appellants as aforesaid. Along with the oral testimony,
six documents were also marked on behalf of the
prosecution which included the formal FIR; the seizure
lists; the inquest report (Exhibit- 4); the post-mortem
report (Exhibit- 5); and the call detail records (Exhibit-
6).
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
16. The name of the appellants had not
transpired till 10:00 P.M. in the night of 18.07.2014 as
would appear from the fardbeyan statement. However,
the Investigator (P.W. 7) has categorically stated before
the Trial Court that at about the same time, i.e. 10:00
P.M. in the night, one Maqsood Ali (P.W. 2), father of
the victim/deceased had given a telephonic information
to him that on the asking of Gulshan, his son was sent
to bring her at about 04:30 P.M.; but later at about
08:00 P.M., the same caller had asked for ransom
amount of Rs. 8,00,000/-. The ransom call was
attended by Imamul Haque, who has not been
examined at the Trial and is said to be the neighbour of
P.W. 2. He is also the signatory to the fardbeyan
statement.
17. The reason for not recording this
information and making it the basis for the FIR was the
non-disclosure of the names of the appellants!
18. Very surprisingly, however, we have
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
found that in the format of the FIR, the time stated for
receiving the information and recording the FIR is
02:00 P.M. in the day of 19.07.2014. This may not
assume any significance but for the fact that till the
time the FIR was registered, neither P.W. 2 nor P.W. 3,
who is the de-facto complainant, had known about the
appellants. It was only much later that the story was
developed that four of the witnesses, viz., Abdul Jabbar
(P.W. 1), Hashimuddin Ansari (P.W. 4), Manu Ali (P.W.
5) and Chockat Ram (P.W. 6) had seen the deceased
looking for a lady and later he being whisked away by
the appellants. Perhaps, the prosecution was of the
view that plurality of evidence with respect to
identification of the appellants would go a long way in
proving the prosecution case, little realizing that the
test of cross-examination clearly debunked such claim
of the prosecution of having unravelled and resolved
the mystery.
19. During the Trial, attention was drawn of
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
all these witnesses, viz., P.Ws. 1, 4, 5 and 6, when
they claimed to have spoken to the police about their
having identified the appellants taking away the
deceased but the Investigator has denied that any such
statements were made by them during the
investigation.
20. Obviously, therefore, the story was
weaved only on the basis of the assumption of the
Investigator, perhaps on the analysis of the C.D.R. and
S.D.R. of few telephone numbers. It is also very
surprising that neither Maimunnisa nor Boka, another
person who was in the loop of the telephone calls or
Laxman Dev Mishra or for that matter, Aisha, who
perhaps is the holder of the telephone number which
was used for talking to P.W. 3 for ransom, have been
made accused in this case.
21. The story, therefore, remains
completely un-decrypted.
22. A motorcycle and a black-coloured veil
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
is said to have been recovered from the house of
Laxman Dev Mishra. We have not been able to lay our
hands on any evidence which would certify that it
belonged to the appellants. Investigation papers
however revealed that the appellants had taken refuge
in the house of Laxman Dev Mishra because they had
married, which was to the chagrin of the family
members of both the parties. However, this has not
come in any way in the Trial Court Records.
23. The other aspect of the matter which
needs no elaborate discussion is that the C.D.R. and the
S.D.R., which though have been marked by the
prosecution, cannot be said to be any admissible piece
of evidence in the absence of the requirements under
Section 65B of the Indian Evidence Act, 1872 having
been complied with [refer to Anvar P.V. v. P.K.
Basheer and Ors., (2014) 10 SCC 473 and Arjun
Panditrao Khotkar v. Kailash Kushanrao Gorantyal
and Ors., (2020) 7 SCC 1].
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
24. There is yet another fault-line in the
prosecution version. The dead body is said to have been
recovered on the showing of appellant/Saddam. The
inquest was prepared by one Ashok Kumar Singh (not
examined) before two witnesses, viz., Raj Kishore
Prasad and Rajeev Kumar Ranjan, who have also not
been examined at the Trial.
25. What was the information given by
appellant/Saddam has not been stated by the
Investigator in his deposition before the Court. In that
event, even such information which had led to the
recovery of the dead body, remains completely
inadmissible in evidence [refer to Rajesh and Anr. v.
State of M.P., 2023 SCC OnLine SC 1202 and
Shahaja @ Shahajan Ismail Mohd. Shaikh v. State
of Maharashtra, 2022 SCC OnLine SC 883].
26. That apart, there is nothing on record
to certify that the dead body was of the son of P.Ws. 2
and 3. There is no identification of the dead body on
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
record. Even the post-mortem report does not clear the
cob-webs. The dead body was found to have been
drowned in water. There is no such sign of the dead
body lying submerged in water for any time in the post-
mortem report.
27. How was that possible?
28. Doctor Azhar Ahmad Ghani (P.W. 8),
who is said to be one of the members of the medical
team which had supervised the post-mortem
examination, has deposed that there was a ligature
mark on the neck of the deceased. The tracheal mucosa
was found congested. However, the hyoid bone was
completely intact. The rigor mortis had not vanished
from the body. The time fixed for death was 6 to 24
hours from the post-mortem examination.
29. Had the deceased been thrown in the
water-body from where it is said to have been
recovered and about which there is no evidence on
record except the statement of the Investigator that the
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
dead body was recovered, there would some sign
noticeable in the post-mortem report. There is none.
30. We have started doubting whether the
dead body was of the deceased of the case.
31. All these grounds coalesce to convince
us that the Trial Court went along with the assumption
of the Investigator that it was appellant/Saddam, aided
by his wife/Khushnuma who had kidnapped and killed
the deceased. Along the continuum, the Trial Court
placed unwavering reliance on the story, without caring
for the basic law for appreciating evidence.
32. With these set of evidence, the
conviction of the appellants is highly unjustified and
cannot be allowed to be sustained.
33. For the reasons noted by us, the
judgment of conviction and order of sentence is set
aside and the appellants are acquitted of the charges
levelled against them.
34. Cr. Appeal (DB) No. 352 of 2017
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
stands allowed.
35. Appellant/Saddam Hussain @ Samir
Raja is in jail. He is directed to be released forthwith
from jail, if not detained or wanted in any other case.
36. Appellant/Khushnuma Khatoon is on
bail. Her liabilities under the bail bonds are discharged.
37. However, this takes us to the other
issue, viz., appellant/Khushnuma Khatoon having filed
another appeal, during the pendency of Cr. Appeal (DB)
No. 352 of 2017, without stating that there was an
earlier appeal filed on her behalf along with her
husband and in that case, the prayer for suspension of
sentence was disallowed.
38. In this occasion, namely in Cr. Appeal
(DB) No. 405 of 2017, the later appeal filed by
appellant/Khushnuma, her sentence was suspended.
39. When the afore-noted facts were
discerned, notice was issued to Mr. Anil Chandra, the
learned Advocate who gave his explanation that he had
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
filed the appeal on the asking of the mother of
appellant/Khushnuma, who had no idea that already an
appeal had been filed vide Cr. Appeal (DB) No. 352 of
2017.
40. The mother of appellant/Khushnuma is
present in the Court at the time of hearing of this
appeal.
41. We accept the explanation offered by
Mr. Anil Chandra, the learned Advocate who has put in
more than three decades in practice before this Court.
He perhaps was taken for a ride by an old woman who
herself was not aware about an earlier appeal having
been filed.
42. Considering the age of the mother of
appellant/Khushnuma and the explanation offered by
Mr. Anil Chandra, Advocate we do not consider it
appropriate to pursue the matter any further and drop
the issue herein.
43. We, however, permit Mr. Anil Chandra
Patna High Court CR. APP (DB) No.352 of 2017 dt.24-01-2024
to withdraw Cr. Appeal (DB) No. 405 of 2017.
44. Cr. Appeal (DB) No. 405 of 2017 now
stands dismissed as withdrawn.
45. Let a copy of this judgment be
dispatched to the Superintendent of the concerned Jail
forthwith for compliance and record.
46. The records of this case be returned to
the Trial Court forthwith.
47. Interlocutory application/s, if any, also
stand disposed off accordingly.
(Ashutosh Kumar, J)
(Nani Tagia, J)
Sauravkrsinha/
Sunil-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 25.01.2024
Transmission Date 25.01.2024
