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2014 DIGILAW 237 (PAT)

Md. Intekhab v. State of Bihar

2014-02-12

I.A.ANSARI, SAMARENDRA PRATAP SINGH

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JUDGMENT : I. A. ANSARI, J.:–By the judgment, dated 29.08.2013, passed, in Sessions Trial No. 387 of 2011, by the learned Additional Sessions Judge-II, Madhubani, the accused-appellant, Md. Intekhab, stands convicted under Section 302 of the Indian Penal Code. Following his conviction as mentioned hereinbefore, he has been sentenced, by the impugned order, dated 30.08.2013, to suffer imprisonment for life and pay fine of Rs. 10,000/- and, in default of payment of fine, undergo simple imprisonment for a period of six months. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: 3. While deceased Angoori Khatoon was wife of accused Md. Intekhab, Irfan, who died at the age of about one year, was son of the accused. The accused used to live, ordinarily, with his wife and children, at Delhi, though his house has been in village Chandpur. On 23.11.2010, at 12.30 PM, P.W. 4, who was, at the relevant point of time, a Chaukidar (watchman) came to learn that the dead bodies of a woman and a baby were lying on the bank of river Budhnad and, upon going there, P.W. 4 saw, lying there, dead bodies of Angoori Khatoon (wife of the accused) and Irfan, one year old son of the accused. Having learnt from his co-villagers that the accused used to suspect the legitimacy of his said child, and, having taken his wife and said son to the bank of the said river, the accused had assaulted them, administered poison to them and caused their death, P.W. 4 informed the police, at Benipatti Police Station, about the discovery of the said two dead bodies and the causes of death, whereupon police arrived at the place of occurrence and, on the basis of the information, which P.W. 4 so furnished to the police, at about 2 PM, on 23.11.2010, a fardbeyan was recorded by police and treating the said fardbeyan as First Information Report, Bennipatti P.S. Case No. 161 of 2010, under Sections 302/34 of the Indian Penal Code, was registered against the accused. During investigation, the police held inquest over the said dead bodies, which were also subjected to post mortem examinations. On completion of investigation, police laid charge sheet, under Section 302 of the Indian Penal Code, against the accused. 4. During investigation, the police held inquest over the said dead bodies, which were also subjected to post mortem examinations. On completion of investigation, police laid charge sheet, under Section 302 of the Indian Penal Code, against the accused. 4. At the trial, when a charge, under Section 302 of the Indian Penal Code, was framed against the accused, he pleaded not guilty thereto. 5. In support of their case, prosecution examined altogether 11 witnesses. The accused was, then, examined under Section 313(1)(b) of the Code of Criminal Procedure and, in his examination aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, the case of defence being that of denial. No evidence was adduced by the defence. 6. Having arrived at the finding that the accused was proved guilty of the charge, which had been framed against him, learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, the accused, as a convicted person, has preferred this appeal. 7. We have heard Mr. Ashhar Mustafa, learned counsel for the accused-appellant, and Mr. Ashwini Kumar Sinha, learned Additional Public Prosecutor, appearing on behalf of the State. 8. While adjudging the merit of this appeal, it is, to our mind, necessary to take into consideration the findings, which had been arrived at, and the opinions, which had been rendered, by the doctor (P.W. 6), who had performed post mortem examinations on the said two dead bodies. 9. According to the evidence of the doctor (P.W. 6), he found, on conducting post mortem examination on the dead body of Angoori Khatoon, as follows:— “1. Lacerated injury 1” x 1/8” with blood and blood clots over left side of face. 2. Abrasion over left thigh and pelvic region. 3. Watery discharged like seminal fluid from vagina with moist salwar suit with secretion. 4. Right nipple was abrasion and xchymosed. Dissection Heart – left chamber intact, right chamber full. All viscera like lungs, kidney, liver and spleen were congested. Stomach contained undisgested food particles. Uterus non-gravit. Urinary bladder intact. Preservation of viscera were done. 1. Blood 2. Part of heart 3. Part of lungs 4. Part of liver 5. Part of spleen 6. One volve kidney, stomach with contained. Intestine with containts. All viscera like lungs, kidney, liver and spleen were congested. Stomach contained undisgested food particles. Uterus non-gravit. Urinary bladder intact. Preservation of viscera were done. 1. Blood 2. Part of heart 3. Part of lungs 4. Part of liver 5. Part of spleen 6. One volve kidney, stomach with contained. Intestine with containts. All collected in at separate plastice jar and over the chowkidar. Time since death – within 24 hours.” 10. It is noteworthy that the doctor (P.W. 6) could not give any definite opinion with regard to the cause of death and, therefore, viscera was preserved for chemical examination. The post mortem report stands proved as Exhibit-2. No finding, on the viscera, which had been preserved, has been brought to the evidence on record. 11. In the backdrop of what has been pointed out above, it is not only difficult, but wholly impossible to infer, far less hold, that Angoori Khatoon’s death was homicidal in nature. 12. The above discussion of the evidence on record brings us to the doctor’s findings, on conducting post mortem examination, on the dead body of Md. Irfan, one year old son of the accused. In this regard, the findings of the doctor are as under:— “1. Blood clots in left side of face and eyes. 2. Swollen head left side with no fracture of scalp. 3. Abrasion and bruise left arm and forearm. 4. Abrasion left thigh and pelvis region with bruise. 5. Blood from buttock. On Dissection Heart – Left chamber empty and Right chamber full. All visceras named lung, liver, kidney were found pale. Urinary bladder were intact. Stomach contained undigested food particles. Intestine contained gas and fecal matter. Time since death within 24 hours.” 13. In the opinion of the doctor (P.W. 6), Md. Irfan’s death was due to shock and hemorrhage as a result of ante mortem injuries, which he was found to have sustained. The relevant post mortem report stands proved as Exhibit-2/1. 14. From the findings of the doctor and his opinion, it is not difficult to conclude, and we do conclude, that Md. Irfan’s death was homicidal in nature. 15. The question, however, remains as to whether it was the accused-appellant, who had caused deaths of Md. Irfan and Angoori Khatoon. 16. The relevant post mortem report stands proved as Exhibit-2/1. 14. From the findings of the doctor and his opinion, it is not difficult to conclude, and we do conclude, that Md. Irfan’s death was homicidal in nature. 15. The question, however, remains as to whether it was the accused-appellant, who had caused deaths of Md. Irfan and Angoori Khatoon. 16. Our quest for an answer to the question, posed above, brings us to the evidence of P.W.4 (Choukidar) who is the informant of this case. P.W. 4 has deposed that he heard on the day of the occurrence, at about 12.30 PM, that dead bodies of one mother and her baby had been found lying by the side of river Budhnad, whererupon he went there and saw the dead bodies of Angoori Khatoon and her one year old son lying there. 17. Notwithstanding the fact that PW 4 had deposed, in his examination-in-chief, that there were frequent fights between Angoori Khatoon and her husband (i.e. accused-appellant) and that the accused-appellant and his wife were present at home on the day of the occurrence, he has clarified, in his cross-examination, that he had never seen any fight between the accused and his wife and that he had been told about the fight. 18. Thus, the evidence, which PW 4 had given to the effect that the accused and his wife used to have frequent fights, was nothing but hearsay and ought to have been kept excluded by the learned trial Court from the purview of its consideration. 19. It is the further evidence of the informant (PW 4) that he does not recall that as to who had suggested to him that Angoori Khatoon had been killed by her husband. In fact, he, candidly concedes, in his cross-examination, that his statements, before the police and in the Court, were based on what he had heard and on suspicion. 20. Situated thus, the evidence of PW 4 can, no way, advance the case of the prosecution inasmuch as he has not given any such admissible evidence, which could make the learned trial Court infer that the accused was present at his house or at the place of occurrence, when the occurrence had taken place. In fact, there is not even a particle of evidence on record to show that the accused was present, at the time of occurrence, in his village. In fact, there is not even a particle of evidence on record to show that the accused was present, at the time of occurrence, in his village. Even if, therefore, we do not take into account as correct assertion of the accused-appellant, made during his examination under Section 313(1)(b) of the Code of Criminal Procedure that he was at Delhi, at the relevant point of time, it would not, as a corollary, lead us to conclude that the accused was present at the place of occurrence or was the assailant. 21. Coming to the evidence of PW 5, grand-father of deceased Anguri Khatoon, we notice that according to his evidence, he came to learn that Anguri Khatoon and her son had been strangulated to death by the accused and, then, the accused threw her dead body on the bank of the river. It is, however, admitted by PW 5 that he himself had not seen the occurrence. 22. In the circumstances indicated above, even the evidence of PW 5 was nothing, but hearsay and could not have been made basis for reaching the conclusion that the accused-appellant was the assailant. 23. So far as PWs 1, 2, 3, 7 and 8 are concerned, their evidence do not support the case of the prosecution inasmuch as all these witnesses have clearly deposed that they have no knowledge about the occurrence. Though these witnesses were declared hostile and cross-examined by the prosecution, nothing was elicited to show that it was the accused-appellant, who had killed his wife and son and that the said witnesses were aware of the same. 24. In short, the evidence of PWs 1, 2, 3, 7, and 8, too, did not improve the case of the prosecution. 25. Coming to the evidence of PWs 9 and 10, we notice that they were merely a witness to the inquests, which were held on the said dead bodies, and as far as PW 11 (Investigating Officer) is concerned, his evidence also does not, admittedly, prove that it was the accused-appellant, who had put to death his wife and son. 26. What surfaces from the above discussion of the evidence on record is that there was not even an iota of admissible and credible evidence on record fastening the accused-appellant with the responsibility of causing deaths of his wife and son. 27. 26. What surfaces from the above discussion of the evidence on record is that there was not even an iota of admissible and credible evidence on record fastening the accused-appellant with the responsibility of causing deaths of his wife and son. 27. Because of what have been pointed out above, it is clear that the prosecution had miserably failed to prove its case and the learned trial Court ought to have acquitted the accused-appellant. 28. In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction of the accused-appellant as well as the impugned sentence passed against him by the judgment and order, under appeal, are hereby set aside. The accused-appellant is held not guilty of the offences, which he was charged with, and he is acquitted of the same accordingly. 29. Let the accused-appellant be set at liberty forthwith unless he is required to be detained in connection with any other case. 30. Send back the Lower Court Records alongwith a copy of this judgment and order.