[Cites 8, Cited by 0]
Rajasthan High Court - Jodhpur
State vs Habib Khan And Anr ... on 24 March, 2026
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
[2026:RJ-JD:13963-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 888/2003
State of Rajasthan
----Appellant
Versus
1. Habib Khan S/o Ajam Khan
2. Zubeda W/o Habib Khan
Both R/o Ward No.25, Sardar Shahar (Churu), P.S. Sardar
Shahar.
----Respondents
For Appellant(s) : Mr. Sharwan Singh Rathore, PP
For Respondent(s) : Mr. Rajeev Bishnoi
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA
Order
24/03/2026
1. The instant D.B. Criminal Appeal has been preferred by the
Appellant-State under Section 378(iii) & (i) of the Code of
Criminal Procedure, 1973, against the accused-respondents
namely (1) Habib Khan and (2) Zubeda, assailing the validity of
judgment dated 28.09.2002 passed by learned Additional Sessions
Judge (Fast Track), Ratangarh (Churu), in Sessions Case No.
16/2002 (28/2001), whereby the accused-respondent Habib Khan
has been acquitted of the offences under Sections 302, 120-B and
498-A IPC and accused-respondent Zubeda has been acquitted of
the offences under Sections 302, 120-B, 109 and 498-A IPC.
2. As per the life and death report placed on record by the
learned Public Prosecutor, the accused-respondent Habib Khan,
son of Azam Khan, resident of Sardar shahar, District Churu, has
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expired during the pendency of the present appeal. In view of his
death, the present D.B. Criminal Appeal, insofar as it relates to
accused-respondent Habib Khan, stands abated. However, the
proceedings shall continue against the remaining accused-
respondent Zubeda, who is reported to be alive.
3. As per the prosecution case, the complainant Nazir Khan,
son of Azam Khan, resident of Sardarshahar, District Churu,
lodged a written report at Police Station Sardarshahar, wherein it
was alleged that his brother-in-law Akbar's daughter, Razia Bano
(aged about 25 years), was married to Umed Khan, son of
accused-respondent Habib Khan, who resided in a neighboring
house. It was further alleged that on 12.07.2001 at about 9:00
AM, the complainant, along with Bhanwaru Khan and Mustaq, was
standing in the lane in front of the house of Habib Khan when
they heard a commotion from inside, and Habib Khan was
shouting that he would kill Razia Bano. Upon hearing this, they
entered the courtyard (bakhal) of the house and saw accused-
respondent Habib Khan holding a gandasi and striking a blow on
the right side of the head of Razia Bano while she was washing
utensils. It was further alleged that when they intervened, the
accused-respondent fled from the rear side of the house carrying
the weapon with him. The complainant and others attended to
Razia Bano, but due to excessive bleeding, she succumbed to her
injuries on the spot. It was also alleged that at the time of the
incident, the deceased was alone in the house, as her mother-in-
law had gone to the fields and her children had gone to school,
and that thereafter, upon hearing the commotion, nearby
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residents also gathered at the place of occurrence. Thus,
according to the prosecution, accused-respondent Habib Khan
committed the murder of his daughter-in-law Razia Bano by
inflicting injuries with a gandasi.
4. On the basis of the said information, a formal FIR No.
13/2001 (Ex.P-14) was registered at Police Station Sardar shahar,
District Churu for the offence under Section 302 IPC.
5. After completion of investigation, the police filed a charge-
sheet against the accused-respondent for the offence punishable
under Section 302 IPC before the Court of learned Judicial
Magistrate, Sardar shahar, Churu. The case, being exclusively
triable by the Court of Sessions, was committed to the Court of
Sessions, Churu, and thereafter transferred to the Court of
learned Additional Sessions Judge (Fast Track), Ratangarh (Churu)
for trial. Proceedings against co-accused Zubeda were initiated
under Section 299 Cr.P.C.
6. The learned Trial Court framed, read over and explained the
charges against accused-respondent Habib Khan for the offences
punishable under Sections 302, 120-B and 498-A IPC, and against
accused-respondent Zubeda for the offences punishable under
Sections 302, 120-B, 109 and 498-A IPC. Both the accused-
respondents denied the charges and claimed trial.
7. During trial, the prosecution examined as many as 17
witnesses and exhibited documentary evidence from Ex.P-1 to
Ex.P-26.
8. The statements of the accused-respondents were recorded
under Section 313 Cr.P.C., wherein they denied the prosecution
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allegations, claimed false implication and asserted their innocence.
In their explanations, the accused-respondents stated that at the
time of the incident they had gone to their fields and were
subsequently called back by Major Khan, and that the complainant
Nazir Khan, in connivance with Akbar Khan, had falsely implicated
them on account of prior enmity relating to agricultural land. The
accused-respondents did not lead any evidence in defence.
9. The learned Trial Court, after hearing the arguments
advanced on behalf of both sides and upon appreciation of the
entire evidence available on record, vide judgment dated
28.09.2002, acquitted the accused-respondents of all the charges
by extending the benefit of doubt.
10. Being aggrieved and dissatisfied with the impugned
judgment of acquittal dated 28.09.2002, the appellant-State has
preferred the present Appeal.
11. Learned counsel for the appellant-State submits that the
learned trial court has gravely erred in law as well as on facts in
acquitting the accused-respondents without assigning cogent
reasons, and the impugned judgment is contrary to the settled
principles of law and perverse to the material available on record,
thus liable to be quashed and set aside.
12. Learned counsel for the appellant-State further submits that
the learned trial court has seriously erred in discarding the
testimony of the eye-witness Nazir Khan on the ground that he is
an interested witness being the uncle (fufa) of the deceased, while
ignoring the material fact that he is also the real brother of the
accused-respondent. In such circumstances, his testimony could
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not have been brushed aside merely on the ground of relationship,
particularly when his presence at the scene of occurrence is
natural and his testimony is otherwise trustworthy.
13. Learned counsel for the appellant-State further submits that
the learned trial court has wrongly compared the FIR lodged by
eye-witness Nazir Khan with the report (Ex. D-6) submitted by the
father of the deceased. It is contended that Nazir Khan, being an
eye-witness, reported the incident as actually witnessed by him,
whereas the father of the deceased was not present at the place
of occurrence and had lodged the report based on information
received. Thus, there was no justification for the learned trial
court to compare both reports. Minor contradictions, if any,
between the two reports cannot be fatal to the prosecution case,
particularly when the report submitted by the father was not
based on direct knowledge of the incident. Hence, the impugned
judgment has been passed without proper appreciation of
evidence.
14. Learned counsel for the appellant-State submits that an FIR
can be lodged by any person and the same is not an encyclopedia
of facts; the investigation and trial are meant to bring the
complete facts on record. During investigation, further facts came
to light and, therefore, minor inconsistencies cannot be made a
ground to discard the prosecution case. The FIR in the present
case was not lodged after deliberation with the father of the
deceased, and therefore, such discrepancies ought not to have
been treated as fatal so as to extend undue benefit of doubt to the
accused-respondents in a case of heinous murder.
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15. Learned counsel for the appellant-State submits that the
prosecution has duly proved the recovery of the weapon of
offence, namely gandasi, at the instance of the accused under
Section 27 of the Indian Evidence Act, which is a material
incriminating circumstance. The learned trial court has erred in
ignoring this vital piece of evidence while passing the impugned
judgment.
16. Lastly, learned counsel for the appellant-State submits that
the learned trial court has erroneously granted benefit of doubt to
the accused-respondents on the ground of absence of motive,
whereas the prosecution has clearly established the motive on
record. The evidence shows that the deceased was subjected to
cruelty and harassment on account of dowry and the fact that she
had no male child. It has also come on record that Umed Khan,
husband of the deceased, was not agreeable to divorce her nor
willing to contract a second marriage despite pressure from his
parents, which ultimately led the accused Habib Khan to commit
the murder of his daughter-in-law. Thus, the motive stands
sufficiently proved, and the findings of the learned trial court to
the contrary are unsustainable in law.
17. In view of the above submissions, learned counsel for the
appellant-State prayed that the impugned judgment of acquittal
be set aside and the accused-respondent - Zubeda Khan be
convicted in accordance with law.
18. Learned counsel for the accused-respondents has opposed
the submissions made by the counsel for the appellant - state and
has supported the judgment passed by learned Additional
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Sessions Judge (Fast Track), Ratangarh (Churu), and he submits
that there is no infirmity in the order passed by the learned trial
court while acquitting the accused-respondent Habib Khan for the
offences under Sections 302, 120-B and 498-A IPC and accused-
respondent Zubeda for the offences under Sections 302, 120-B,
109 and 498-A IPC. Vide judgment dated 28.09.2002.
19. We have considered the submissions made before this Court
and have carefully examined the relevant record of the case,
including the impugned judgment dated 28.09.2002.
20. Upon appreciation of the evidence on record, it is apparent
that there is a conspicuous absence of corroborative link evidence
connecting the accused-respondents with the commission of the
offence. It has further come on record that the First Information
Report (Ex. P-14) and the letter addressed to the Superintendent
of Police by PW-14 Akbar (Ex. D-6) disclose materially divergent
versions of the incident. In Exh. D-6, an additional person, namely
Aziz, has been implicated, whereas no such allegation finds
mention in the FIR. Moreover, the FIR does not contain any
allegation regarding instigation by accused-respondent Zubeda or
any harassment of the deceased on account of dowry demand.
21. It is noteworthy that the statements of material witnesses
were not recorded promptly during investigation. Significant
contradictions have emerged in the testimonies of the prosecution
witnesses. The witnesses from the parental side of the deceased,
namely PW-8 Akbar (father), PW-10 Sattar (brother), PW-11
Bismillah (mother), and PW-12 Shahnaz (sister-in-law), are
admittedly not eyewitnesses to the occurrence.
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22. As regards PW-6 Nazir Khan, who is projected as the sole
eyewitness, his testimony does not inspire confidence in view of
material contradictions and lack of corroboration from any
independent source. In these circumstances, we find that the
prosecution has failed to establish the charges against the
accused-respondents beyond reasonable doubt. Consequently, the
accused-respondent is entitled to the benefit of doubt.
23. Having examined the reasoning so assigned, and in the
backdrop of the settled principles governing interference in an
appeal against acquittal, it emerges that the view taken by the
learned trial court is a plausible view based on appreciation of
evidence on record. Unless the findings are shown to be
manifestly perverse or wholly unsustainable, interference is not
warranted. Thus, the conclusion drawn by the learned trial court in
granting benefit of doubt to the accused cannot be said to be
unjustified.
24. In view of aforesaid observation, we find no infirmity or
perversity in the concurrent findings of learned Additional Sessions
Judge (Fast Track), Ratangarh (Churu) below. Hence, impugned
judgment of Acquittal dated 28.09.2002 is upheld.
25. Accordingly, the appeal is dismissed.
26. Keeping in view, however, the provisions of Section 437A
Cr.P.C. the accused-respondent is directed to forthwith furnish a
personal bond in the sum of Rs.50,000/- and a surety bond in the
like amount, before the learned trial court, which shall be effective
for a period of six months to the effect that in the event of filing of
Special Leave Petition against the judgment of acquittal or for
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grant of leave, the respondent, on receipt of notice thereof, shall
appear before Hon'ble the Supreme Court.
27. Office is directed to send the record of the trial court
forthwith.
(CHANDRA SHEKHAR SHARMA),J (VINIT KUMAR MATHUR),J
165-Kartik Dave/C.P. Goyal/-
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