CRIMINAL APPEAL No.435 OF 2003 ----- Against the judgement and order dated 26.7.2003 passed by Shri Subodh Paswan, Sessions Judge, Vaishali at Hajipur in sessions trial No. 454 of 2001. ----------- Munna Alam son of , Md. Muslim, Resident of village Matiyara, P.S. Sarai, Dist. Vaishali ---------- Appellant VERSUS The State of Bihar ------------------------------Respondent --------- For the Appellant : Shri Neeraj Kumar @ Sanidh, Advocate (Amicus Curiae) For the State : Shri Abhimanyu Sharma, Additional P.P P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE RAKESH KUMAR Dharnidhar Jha & Rakesh Kumar,JJ The solitary appellant Munna Alam, who was tried for the offence under section 302 of the Indian Penal Code was found guiltyby the learned Sessions Judge, Vaishali at Hajipur by the judgment impugned herein, which is dated 26.7.2003, and was passed in sessions trial no. 454 of 2001. The appellant was directed to suffer rigorous imprisonment for life. He appeals against the finding of guilt and order of sentence to this Court. The prosecution case is very short as it appears contained in Ext.1 the fardbeyan of P.W.5 who was the father of the deceased, namely, Hasibul Khatoon. It is stated that one Jamshed son of Khalil resident of village Mirjapur came to P.W.5 to inform him that he was required at village Mariyara in connection with any work. The informant came to village Mariyara and found that the appellant had murdered his daughter, his wife P.W.5 was told by - 2 - Md. Muslim (P.W.1) the father of the appellant, and Kuraisha Khatoon (P.W.4) mother of the appellant about the incident. It was stated by P.W.5 that the deceased was married only on 10.3.2001 to the appellant and why the crime was committed was not known to him. On the basis of Ext.3, the first information report of the case was drawn up and investigation was taken up. It appears that on the clossure of the investigation and on finding the materials sufficient, the appellant was sent up for trial which ended in the impugned judgment of conviction and sentence and which ultimately gave rise to the present appeal. The defence of the appellant was that the occurrence took place in his absence when he was participating in Muharram festival away from his house at some distant place and that he was called and he could find that the tragic occurrence had already occurred. We have heard Shri Niraj Kumar ‘Sanidh’, who was appointed amicus curiae by us on account of non appearance of the learned counsel for the appellant. We were taken through the evidence of six prosecution witnesses, out of whom P.Ws 2 and 3, namely, Md. Siraj and Md. Idrish respectively were witnesses to inquest and fardbeyan. P.W.1, Muslim Mian is the father of the appellant and he does not appear lending support to prosecution charge. Likewise P.W.4 Kuraisha Khatoon is the mother of the appellant and she also does not support the prosecution charge. The - 3 - informant P.W.5 gives a hearsay account without pointing out as to who told him about the deceased being killed by the present appellant with Garasa. P.W.6 Dr. Nagendra Mohan Sinha is the doctor who held postmortem examination and prepared the report in that behalf which has been marked as Ext.2 for the prosecution. It was contended by the learned Amicus curiae that the informant was not an eye witness and the other circumstances, if at all they could be gathered from whatever evidence that has been led by the prosecution, do not appear to complete chain so as to raising an inference of guilt by explaining away the theory of innocence of the present appellant except that the dead body was found at the very door steps of the house of the present appellant. It was contended further that in a case of circumstantial evidence it is the sine qua non that the prosecution alleges and deposes the motive for commission of the offence. But curiously enough no motive appears either alleged or established in the present case. While reading out the evidence of witnesses to us, the learned amicus curiae left it for our decision as to what could be the status of the evidence of P.W.5 who was not cross-examined by the defence counsel. It was contended, lastly, that the evidence was too feeble to justify the order of conviction and infliction of sentence upon the appellant. Shri Abhumanyu Sharma, learned Additional P.P., has conceded that it is true that the dead body was recovered from the very door-step of the house of the appellant, but that may not be a circumstance as strong enough as to record a finding of guilt against - 4 - the appellant. It was further contended that the burden is shifted upon the appellant under section 106 of the Evidence Act, may also not be attracted in the light of the evidence which is available to the court on the record of the case. It was contended that doubt lingers as regards the complicity of the present appellant. Before we proceed to record neither our findings on the contentions raised before us we may point out that the I.O. of the case has not been examined nor the inquest report bas been brought on record. No seizure memo as regards the seizure of blood or any other incriminating material was brought on record except the oral evidence of some of the witnesses and that too of a character which may not be sufficient to establish a fact. There is no concrete material produced before us to hold that there was no deficiency in the prosecution case. However, it is quite established by the evidence of Dr. Nagendra Mohan Sinha (P.W6) that the deceased Hasibul Khatoon was murdered by being assaulted with some sharp cutting weapon as P.W.6 found the following ante mortem injuries on the dead body : (i) Massive incised wound on upper portion of right side of neck 6” x 3 ½ x bone deep cutting the right jaw bone. (ii) Incised wound 4 x 2 ½” over chin cutting chin and jaw bone. (iii) Incised wound 2 ½ ’’ x ½’’ x bone deep over right temporal region of scalp. (iv) Incised wound (a) 2” x ½” (b) 2 ½” x ½” over right cheek. - 5 - (v) Incised wound 1” x ½” above right eyebrow. P.W.6 has stated that injury no.1 which was a massive incised wound had cut the soft tissue, muscles and great blood vessels of right side of neck with fracture of right jaw bone. It was further opined that the death has been caused due to haemorrhage and shock as a result of the above noted injuries which were sufficient to cause death in the ordinary course of nature and further that the time elapsed since death and postmortem held was within 24 hours. Thus from the evidence of P.W.6 no one could have any doubt that the lady Hasibul Khatoon was not only brutally attacked, rather was hacked to death mercilessly since the blow which has been described by the doctor at serial no.1 was itself sufficient to cause the death of the lady. After having discussed the injuries what we find is that for assaulting a lady with such a degree of brutality there must be very strong motive which could have rather maddened the assailant to go berserk and attack the lady without showing the slightest restraint which would be shown to such a hapless and helpless person. While we were being taken through the evidence of witnesses we were groping to find as to what could be the reason for heaping such brutal acts upon a helpless and innocent lady. In cross-examination part of some of the witnesses, like, P.W.1 in paragraph 4 it has come that the lady was carrying a child in her womb from a period six month ahead of her marriage and that was an illicit foetus. This could be one reason - 6 - either for the accused or anyone else who could be interested in the lady for the above reason to commit her murder. It has come in evidence of P.W.4 Kuraisha Khatoon in paragraph 4 that the village of the deceased lady was a neighbouring village to the place of occurrence and people from her parent’s village used to visit her very often. As regards the presence of the appellant, it is stated by P.W.2 Md. Siraj that the day was the Muharram day and appellant Munna Alam had gone to celebrate Muharram and he was away from his house and he was brought to his house when the occurrence had been detected. The same fact has been stated by P.W.4 Kuraisha Khatoon in her evidence in paragraph 4. Likewise, P.W.1 Muslim Mian in paragraph 4 has stated the same fact that the present appellant had gone out to celebrate Muharram. P.W.3 Md. Idrish has stated that when he went near the dead body, he found that the present appellant and his parents were weeping over it and they had sent the message about the occurrence and the death both, to the appellant and also to the parents of the lady. P.W.2 Md. Siraj has stated in paragraph 3 that he and others brought the appellant from the place where he was celebrating Muharram and further that the deceased never quarreled with the parents of the appellant. P.W.5 has stated that this appellant had assaulted the deceased and caused her murder but, admittedly, he is not an eye witness to the occurrence. He might have learnt about the occurrence from other person but no one has come to - 7 - support him on the fact that the appellant murdered his wife or that they had told P.W.5 that the appellant had committed the murder. The person who had given the information to the appellant for coming to the village of place of occurrence namely Jamshed Mian has also not been examined. In Harbans Lal V. State of Punjab report in A.I.R. 1996 SC 1186, the dead body was recovered from the house of the husband as is the case before us also. The dead body was also found bearing burn injuries but it was held that the very recovery of the dead body was not sufficient. It was not conclusive in itself to establish the guilt of the accused. In the present case also the dead body was found in the house of the appellant, but there is sufficient indication from the evidence of various witnesses that the appellant was away from his house and was not found present around the time of occurrence and P.W.2 who is an independent person has stated that he and others went and called the appellant from the place where he had gone to celebrate Muharram. We had already indicated the other flaws in the prosecution case like the non-examination of the Investigating Officer, the non-proof of the inquest report, absence of any evidence on fiding and seizure of blood at the place of occurrence. Besides, we find a complete lack of direct evidence or even circumstantial evidence connecting the appellant to the offence. In the result, we find that the prosecution case suffers from many pitfalls which make its case suspects and which entitles the appellant to benefit of doubt. Accordingly we extend benefit of - 8 - doubt to the appellant and thereby allow the appeal by setting aside the judgment of conviction and sentence passed by the learned trial Judge. Appellant Munna Alam is in custody. He shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J) (Rakesh Kumar, J) Patna High Court, Patna The 29th January, 2010 Rahman(NAFR)