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2012 DIGILAW 1332 (PAT)

MD. MOHI, S/O HABIBUR RAHMAN v. STATE OF BIHAR

2012-09-20

ADITYA KUMAR TRIVEDI, MIHIR KUMAR JHA

body2012
JUDGMENT Per M.K. JHA, J. – This appeal is directed against the judgment of conviction and sentence dated 12.07.1990 passed by Sessions Judge, Darbhanga in Sessions Trial No. 15 of 1989, whereby and whereunder, the sole appellant Md. Mohi has been convicted for the offences punishable under Section-302/201/364 and 379 IPC and sentenced to undergo rigorous imprisonment for life under Section-302 IPC as well as rigorous imprisonment for five years as also rigorous imprisonment for seven years and rigorous imprisonment for two years under Section-201,364 and 379 IPC respectively. These, sentences, however, had been directed to run concurrently. 2. The prosecution case is based on a written report of the informant, PW-9 (Shafi-ur-Rahman) that wherein it has been stated by him that his wife Quaraisa Khatoon was sleeping in her house on 28.04.1988 along with his maternal grandson namely, Umar @ Tuntun aged about 7 years whereas his brother Md. Khalil was also sleeping on the adjacent verandah. According to the informant on 29.04.1988 Umar @ Tuntun, his maternal grandson having met him in bathan had informed that his wife, i.e. the maternal grandmother was missing whereafter he had asked his grandson Tuntun to give this information to Mr. Shabbir, his son i.e. the maternal uncle of Tuntun. The informant has claimed that he too had made inquiry about his missing wife from his brother Md. Khalil who had then informed him that at about 10 p.m. in the last night i.e. 28.4.1988, he in the torch light had seen some movement never the place where the wife of the informant(his sister-in-law) was sleeping in another corner of the verandah and when he had made a query as to who was there, he did not receive any answer but in the moon-light he could see the appellant proceeding in a speed as also the wife of the informant also following him. The informant had also claimed on this much information having been acquired by him on 29.04.1988, he had kept on searching his wife as also the appellant but none of the two could be found by him. 3. The further case of the informant is that he and his son Mr. Shabbir kept on searching of his wife and his son Md. 3. The further case of the informant is that he and his son Mr. Shabbir kept on searching of his wife and his son Md. Shabbir (P.W-8) had also gone to Calcutta and having returned from Calcutta had informed him that the appellant had gone to Calcutta to his brother Juhi and had given him Rs. 1200/- as also had informed his brother that he had left his torch and few clothes in his house as also had asked his brother Juhi to pass on this information in his village home. According to the informant, his son Shabbir had also informed that Juhi, the brother of the appellant, had revealed that the appellant having stayed for 3 to 4 hours with him in Calcutta had gone away to Delhi whereafter Shabbir his son, had also gone to Delhi in search of his mother, the wife of informant. It has thereafter been also explained by the informant that only on 05.05.1988 at about 1 to 1:30 p.m., the dead body of his wife Quairasa Khatoon was found in the grave-yard well covered by soil beneath the earth from which a part of the saree was being revealed with foul smell and on coming to know of this, more than 100 persons had gone to the grave-yard who on their return journey had informed this fact to his son-in-law, Saghir Ahmad (PW-1). As per the version of the informant his son-in-law had gone to the grave-yard and had identified the dead body of his wife Qurasia Khatoon only on the basis of the saree. 4. In the written report the informant claiming to be a blind person had also alleged that some the clothes, ornaments and cash were also missing from his house details whereof could be given by his son Shabbir on return from Delhi. On the basis of these averments made in the written report, the informant had alleged that his wife Quraisa Khatoon was done to death by the appellant on account of his greed and lust for money who had also hidden her dead body in a ditch. 5. On the basis of the aforementioned written report of the informant PW-9 (Shafi-ur-Rahman), Keoti P.S case no. 5. On the basis of the aforementioned written report of the informant PW-9 (Shafi-ur-Rahman), Keoti P.S case no. 51 of 1988 was registered on 05.05.1988 and the police officer having gone to the grave-yard and recovered the dead body as also getting its identified by the family members of the informant had sent the same for conducting the post mortem and thereafter having also investigated the case had submitted charge sheet for the offence punishable under Section-302 and other allied sections of the IPC. the case after being committed to the Court of Sessions had led to the trial of the appellant which had ended with his conviction and sentence under the impugned judgment which is the subject matter of this appeal. 6. Mr. Farooque Ahmad Khan, learned counsel appearing on behalf of the appellant while assailing the aforementioned impugned judgment has submitted that the whole story of prosecution would not inspire confidence, inasmuch as firstly there is no explanation whatsoever for delay of 7 to 8 days in lodging of the FIR as with regard to the missing wife of the informant even when the informant and his family members in course of their search had already come to know of the involvement of the appellant in taking away the deceased with him on the very next morning i.e. on 29.04.1988. He has also submitted that the conduct of the prosecution witnesses including informant and his son to have made search both in Calcutta and Delhi but not reporting the matter to the police till recovery of the dead body would by itself show that the prosecution had deliberately cooked up a false case against the appellant on more suspicion. 7. Explaining this aspect Mr. Khan has also submitted even if the prosecution case is taken at its face value, there is being no eye witness either on the point of appellant taking away the victim lady with him or doing her to death and burying her in the graveyard, even the link required to be established in a case of circumstantial evidence had not been successfully completed. In this regard he has also referred to the evidence of Md. In this regard he has also referred to the evidence of Md. Shabbir (PW-8) and PW-9 (Shafi-ur-Rahman), the two witnesses to whom information was firstly given by Tuntun the maternal grandson of the informant and had submitted that the non-examination of Tuntun has infact affected the very credibility of the prosecution case. 8. Proceeding further, he has also submitted that on the basis of medical evidence as also the evidence of PW-1(Saghir Ahmad) the son-in-law of the deceased, it is difficult to come to the conclusion that after 7 days of the death of the deceased there was something left on her face or body on the basis of which she could be even identified and identification made by the PW1 son-in-law on the basis of saree worn by the deceased mother-in-law would not inspire confidence. In this regard, Mr. Khan has also placed reliance on the inquest report (Exhibit-5) and the evidence of the investigating officer to suggest that the dead body was not at all identifiable much less of the deceased. On the basis of all these submission, he is of the considered view that the impugned judgment of conviction and sentence cannot be maintained either on fact or in law. 9. Per contra, M/s. Shashi Bala Verma, learned APP for the State while supporting the findings in the impugned judgment has submitted that though it is true that there is no eye witness to the alleged occurrence leading to the murder of the deceased Quraisa Khatoon but then there are certain links backed by circumstancial evidence which would directly connect the sole appellant for the alleged occurrence. In this regard she has placed reliance on the evidence of Md. Shabbir (PW-8) and PW-9 (Shafi-ur-Rahman) stating that once they had deposed about the deceased being taken away from her house by the appellant whereafter the appellant had remained absconding from his house and had also gone to Kolkata and thereafter to Delhi, the ultimate recovery of the dead body from the grave-yard in suspicious circumstances would definitely point out towards the involvement of the appellant in the alleged offence of kidnapping followed by her murder. She has also explained that the appellant was none else but the own nephew (son of the brother of the deceased) and therefore, the prosecution case that the deceased may have accompanied the appellant for her going to Kolkata being quite probable if the son of the informant had initially gone to Kolkata and thereafter to Delhi in search of his mother, much cannot be said either about the delay in giving information to the police. As with regard to the identification of the dead body she has submitted that as the Doctor himself in his post mortem report had indicated that the dead body was only partly decomposed and as such identification made by close family members would not in any way dilute the prosecution case. Based on these submissions, she is of the view that the findings recorded by the trial court are fit to be confirmed without any interference by this Court. 10. Before we would analyze the aforementioned submissions, it would be necessary for us to take stock of the evidence on record. The Prosecution in this case has examined in all 12 witnesses out of whom Saghir Ahmad (PW-1) is the son-in-law of the deceased who had identified her dead body. PW-2 (Ramanand Jha) is a formal witness before whom the prosecution party had prepared the production list. PW-3 (Md. Abdul Alam @ Khakhar) is the former mukhiya before whom the dead body was exhumed and identification was made by PW-1(Saghir Ahmad) and his wife PW-10 (Shahnad). PW-4 (Md. Saghir Ahmad) was the present mukhiya and in his evidence he has also supported only the part of the prosecution case relating to recovery of the dead body from the grave-yard and its identification. PW-5(Rabbo Khatoon) is the daughter-in-law of the deceased who has come forward to say that in the fateful night she was in the house along with the deceased and Tuntun. PW-6 (Jamil Ahmad) is a formal witness who had scribed the written report filed by PW-9(Shafiur Rahman) before the police. PW-7(Mumtaz Begum) is another daughter-in-law of the deceased and wife of PW-8 (Md. Shabbir) the son of the informant, who have given his hearsay version of occurrence as also stated about his movement to Kolkata and Delhi in search of his mother (deceased). PW-9(Shafiur Rahman) is the informant the husband of the deceased who again is a hearsay witness. PW-7(Mumtaz Begum) is another daughter-in-law of the deceased and wife of PW-8 (Md. Shabbir) the son of the informant, who have given his hearsay version of occurrence as also stated about his movement to Kolkata and Delhi in search of his mother (deceased). PW-9(Shafiur Rahman) is the informant the husband of the deceased who again is a hearsay witness. PW-10(Shahnad) the daughter of the deceased and PW-9 (Shafi-ur-rehman) the informant has been tendered. PW-11 (Sudershan Pandey) is the investigating officer and PW-12 (Dr. Akhauri Rabindra Kishore) is the doctor who had conducted the post mortem on the dead body of the deceased. Apart from the aforementioned ocular evidence, the prosecution has also exhibited a few documents such as Exhibit-1 series which is the signature of the respective witnesses over respective documents. Exhibit-2 is the written report, Exhibit-3 is the description of the stolen property, Exhibit-4 is the formal FIR, Exhibit-5 is the inquest report, Exhibit-6 is the production list, Exhibit-7 is the post mortem report. Apart from documentary evidence, material exhibit-1 i.e saree and Exhbit-2-Jumpar has been produced by the prosecution. 11. The defence which has not examined any witness or exhibited any document has come out with its case of total denial of the occurrence in the manner alleged and the appellant being falsely implicated therein. 12. As would be apparent from the aforesaid survey of the evidence on record there is no eye witness to the occurrence either on the point of the deceased being taken away by the appellant in the night of 28.4.1988 so as to constitute the offence of kidnapping under Section-364 IPC or even on the point of her murder by the appellant. The solitary evidence which has been put forward by the prosecution is that PW9 was informed by Khalil-ur-Rahman (not examined) his brother that in the night of 28.4.1988 at about 10 p.m. he in the house had seen the appellant walking in a brisk pace and the deceased following him. Khalil-ur-Rahman however could not be examined as he is said to have died but his this version in fact gets no support from any other person except PW-9. Khalil-ur-Rahman however could not be examined as he is said to have died but his this version in fact gets no support from any other person except PW-9. If however the evidence of PW-9 is examined, it becomes clear that not only he is a blind man but he was also sleeping alone away from his house, in the Khalihan but even after coming to know from his grandson as with regard to his wife missing from the night, he had taken no steps for searching his wife or informing the police. Thus assuming PW-9 had already come to know of his wife missing from the house from the night as also was told by the appellant to his brother Khalil-ur-Rahman, his conduct of not even reporting this fact to the village mukhiya and disclosing the name of the appellant would create a serious doubt with the entire prosecution case specially when such prosecution version had come in his written report after 7 days. It has to be kept in mind that PW-3, the then mukhiya was examined on the point of recovery of the dead body but he did not state that the informant had even informed him of missing of his wife much less involvement of the appellant in taking away his wife. Therefore, the averment of the informant PW-9 as with regard to disclosing name of the appellant by his brother Khalil-ur-Rahman to be the person who was seen last in the company of the deceased also lacks any independent corroboration. 13. In that view of the matter, if remaining evidence of the informant is scanned along with PW-8 the son of the informant it becomes clear that though they both of them have their house in the village but he was not in that house and was sleeping in his Khalihan while PW8 was in his Sasural with his wife PW7. The information was also given to PW8 in the next morning as with regard to his mother missing and despite the fact that he could come to know of the involvement of the appellant in taking her away even then he too had taken no steps to inform the police or even to the local mukhiya. The information was also given to PW8 in the next morning as with regard to his mother missing and despite the fact that he could come to know of the involvement of the appellant in taking her away even then he too had taken no steps to inform the police or even to the local mukhiya. From the evidence of PW8 it appears that he kept on moving firstly to Calcutta and thereafter to Delhi but did not return to inform his father PW9 as with regard to the mother being not found out by him either in Calcutta or in Delhi. As a matter of fact, when the dead body was recovered on 5.5.1982 PW-8 was also not present in the village as would be apparent from the reading of the written report itself where the informat had claimed that he would give details of the stolen articles after return of his son. Thus the manner in which PW-8 has also conducted himself as with regard to the search of his missing mother would not inspire confidence in his evidence. Moreover, from his cross examination it would appear that he himself was accused in a criminal case lodged at Delhi and was arrested in connection with the same and was sought to be produced at Delhi in the same period. Therefore, it is difficult for this Court to come to a positive conclusion as to whether PW-8 had actually gone to Delhi in search of his mother or was actually arrested and taken to Delhi as an accused. 14. In the light of the aforesaid analysis of evidence of PW-8 and PW-9, the two most crucial witness of the prosecution, if rest of the evidence is examined it would be found that even PW-5, Rabbo Khatoon, the lady who had claimed to be with her mother-in-law in the fateful night, she too had disclosed nothing in her evidence so as to implicate the appellant in any manner. In her evidence all that she had stated that she was in her house and had talked to the deceased her mother-in-law at 9 p.m., on 28.04.1988 whereafter she had gone to sleep and on the next day she could come to know that her mother-in-law was missing. In her evidence all that she had stated that she was in her house and had talked to the deceased her mother-in-law at 9 p.m., on 28.04.1988 whereafter she had gone to sleep and on the next day she could come to know that her mother-in-law was missing. Thus if this lady member who was present in the house has not stated anything in her evidence to show that the deceased was forcibly taken away by the appellant, the rest of the prosecution case as suggested by the informant that his brother, Khalil-ur-Rahman had informed that his wife was accompanying the appellant would itself raise serious question as to why the appellant having already privy to the deceased was required to kidnap her and thereafter also killed her. Nothing however has been brought on record by the prosecution to suggest any motive for doing so by the appellant and in fact the witnesses have been consistent that not only the deceased was the own fufu i.e. the appellant being the son of the own brother of the deceased but they were also on very good terms and the appellant used to frequently visit the house of the deceased. In this background, when the prosecution has brought no evidence to connect the appellant much less ascribe any motive for the murder of the deceased, the delay of 7 days in lodging the FIR and disclosing the name of the appellant as the sole person responsible for kidnapping and killing the deceased itself becomes fatal to the prosecution case. 15. The rest of the prosecution case that such death of the deceased under suspicious circumstances could be revealed on discovery of the dead body from the grave-yard on 05.05.1988 would also be of no avail for the purposes of explaining the delay in reporting the matter to the police. Admittedly, PW-8 and PW-9 had found the deceased missing from her house from 28.04.1988. From 28.04.1988 the search was also on. The valuable articles of the house are also said to be missing from that date but then Pw-8 having informed none about the same had gone to Calcutta in search of his mother. Admittedly, PW-8 and PW-9 had found the deceased missing from her house from 28.04.1988. From 28.04.1988 the search was also on. The valuable articles of the house are also said to be missing from that date but then Pw-8 having informed none about the same had gone to Calcutta in search of his mother. In Calcutta he could not find his mother and Juhu the brother of the appellant had not given any such information that the appellant had come to Calcutta with the deceased and thus the natural conduct of this witness i.e., PW-8 could have been to return back to the village for lodging the F.I.R. immediately. That however is sought to be explained by him that he had thereafter gone from Calcutta to Delhi in search of appellant as if he had a mission to search only the appellant and not his missing mother. As a mater of fact PW8 did not return to his village from Delhi even till the recovery of the dead body and the institution of the First Information Report and as such the explanation which could later on be revealed that he was in jail custody in Delhi would weaken the prosecution case as with regard to kidnapping and murder of the deceased by the appellant. In that view of the matter, this Court will have no difficulty in discarding the hearsay evidence of PW-8 either on the point of his going to Calcutta in search of his mother or the expansion of the story that her mother had been taken away by the appellant for material gains including cash and ornaments. 16. As a matter of fact the prosecution case is again shrouded in mystery on the issue of recovery of the dead body inasmuch as it is said that on 05.05.1988 someone saw a piece of saree in the heap of soil burried under the earth in the grave-yard and on this the grave-yard was exhumed and the recovered dead body allegedly identified by PW-1 her son-in-law and after that only the written report was filed at 3 p.m., on 05.05.1988 by PW9 whereafter the police officer had gone to the place of occurrence and had prepared the inquest report at 10 p.m., on 05.05.1988. The recovery of the dead body therefore, had not been made in presence of the police and in fact the identification has already been claimed to be made by PW-1 the son-in-law. Such identification by PW-1 as claimed by him has been exposed in his cross-examination in paragraph no. 6 which would completely demolish the prosecution case, inasmuch as, all that has been claimed by him therein that he could identify the dead body so recovered in the grave-yard only on the basis of the apparel i.e. Saree worn by the deceased. When he however was confronted in cross-examination as to how many sarees his mother-in-law had, he could not even explain that. Thus the identification claimed by PW-1 on the basis of wearing apparels would pose a serious question as with regard to identification of the dead body to be of the deceased Quraisa Khatoon. It has to be noted that PW-3 the than Mukhia in his cross-examination has come to say that after the police had come, the dead body was taken out of the grave but if the informant had already said in his written report that the dead body was already taken out and identified by PW-1, the son-in-law, where was the occasion for dead body being again taken out from the heap of soil of the grave-yard? The prosecution never wanted to clarify this aspect and in fact when the investigating officer had stated that having gone to the place of occurrence he had got the dead body exhumed through PW-1 and PW-8, the whole thing again becomes mysterious. In such circumstances when the daughter of the informant PW-10(Shahnad) had been tendered, the issue of identification got jinxed inasmuch as PW-3 who was the then mukhiya of the village had claimed identification only by three persons namely, PW-1 and PW-10 and another son-in-law Md. Kazim (not examined). Thus in view of specific evidence of PW-3, the identification claimed to be made by PW-7 another daughter-in-law who is the wife of PW-8 is not supported from the investigating officer or even by the informant who in his written report had claimed such identification of the dead body only by son-in-law, PW-1. It has to be also mentioned here that even in course of his examination PW-9 had never claimed identification of the dead body of his wife by PW-7 by him. 17. It has to be also mentioned here that even in course of his examination PW-9 had never claimed identification of the dead body of his wife by PW-7 by him. 17. It is in this background that one has to go to the content of the postmortem report(Exhiit-7), relevant portion whereof reads as follows:- “The body was in state of partial decomposition and partially covered with soil and mud. One incised, penetrating wound 1½”x½” abdominal cavity was detected right side of the body at inter costal space. The surrounding soft tissues were found infiltrated in the blood. On opening the abdominal cavity, liver was found penetrated corresponding with the injury over the body. Some yellowish coloured fluid (decomposed blood) was found in the abdominal cavity and around the wound. Other viscera were found partially decomposed. The clothes on the body at the time of P.M examination have same type of cut corresponding with the injury over the body. The above noted injury was ante mortem, grievous and dangerous to life in ordinary course of nature and caused by some sharp, cutting and pointed weapon. The death was due to haemorrhage and shock. Time of death. Within 7 to 8 days from the time found in examination.” 18. It would be clear that as per doctor PW-12 the dead body was partially decomposed. Admittedly, the body was recovered after 7 days and the investigating officer had in his evidence had claimed that it was two and a half feet inside the earth. Time of death. Within 7 to 8 days from the time found in examination.” 18. It would be clear that as per doctor PW-12 the dead body was partially decomposed. Admittedly, the body was recovered after 7 days and the investigating officer had in his evidence had claimed that it was two and a half feet inside the earth. In that view of the matter, when the inquest report, Exhibit-5 gives the following details of the condition of the dead body:- dsoVh Fkkuk dk.M la0 0051@88 fnukad 5-5-88 /kkjk 302@201 Hkk0n0fo0 tk¡p dh frfFk 5-5-88 le; 10 cts jkrA dqjSlk [kkrqu tkSts& lQhmj jgeku] xzke& Nrou] Fkkuk& dsoVh] ftyk& njHkaxk] mez yxHkx 60 o”kZA vkSjrA dfczLrku dk iwjc mŸkj dks.kk ls djhc 10 yxh if’pe mŸkj dks.kk ijA 5-5-88 dks djhc 10 cts jkrA tehu esa djhc 2&1@2 QhV fups lsA djhc 2&1@2 QhV fups tehu esa feV~Vh ls <dk gqvkA feV~Vh mij ls gVkus ij phr voLFkk esaA iSj nf{k.k flj mijA nksuksa iSj eqM+k gqvkA vkxs dh rjQ] nkfguk ckg lj ds fups eqM+k gqvk rFkk ok;s okg onu ls lVk gqvk fups dh rjQ fl/kk] eq¡g [kqyk gqvkA vk¡[k vkSj ukd xyk gqvkA ekFks dk cky xys gq, fLFkfr esa mij ekFkk ls gVk gqvk fups Hkkx esa Fkksjk lk yxk gqvkA nkfguk ikWao dk ryok xyk gqvkA iqjs onu dk ekal xyk gqvkA {kr&fo{kr voLFkk esa xyk gqvkA iwjs onu esa Fkksd dk Fkksd fdM+k yxk gqvkA ‘kjhj xy tkus ds dkj.k dksbZ pksV ;k ?kko dk fpUg fn[kkbZ iM+uk lEHko ugha gSA that by itself would fully explain the Doctor's evidence in the Court where he had also accepted that the dead body was partially decomposed and the entire face as also the hands and the feets were completely decomposed making the identification of deceased by face literally impossible and thus her identification on the basis of wearing apparels (saree) by PW-1 the son-in-law in absence of any detail of clothes worn by her on 28.4.1982 in evidence will also not inspire any confidence and at least on the basis of such sketchy evidence, it cannot be said with certainty that the dead body so recovered was that of the deceased Quraisa Khatoon. 19. 19. Thus having given our anxious consideration to the entire materials on record we in the light of her aforesaid reasonings are satisfied that prosecution has miserably failed to prove its case beyond reasonable doubt. 20. That being so, this appeal is allowed and the impugned judgment of conviction and sentence is set aside. The appellant is already on bail and as such he would now stand discharged from the liability of his bail bonds.