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2016 DIGILAW 842 (PAT)

Md. Zahoor, son of late Badari v. State of Bihar

2016-07-04

ANJANA PRAKASH, RAJENDRA KUMAR MISHRA

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JUDGMENT : Anjana Prakash, J. Heard learned counsel for the Appellants and learned counsel appearing on behalf of the Additional Public Prosecutor. 2. Appellant Md. Zahoor of Cr. Appeal (DB) No. 156 of 2011 has been convicted to undergo rigorous imprisonment for life for the offence punishable under Section 302 Indian Penal Code read with Section 34 of the Indian Penal Code and Md. Zaheer of Cr. Appeal (DB) No. 380 of 2011 has been convicted to undergo rigorous imprisonment for life for the offence punishable under Section 302 Indian Penal Code passed by the Judgment of conviction dated 8th December, 2011 and order of sentence dated 9th December, 2011, by the Additional District & Sessions Judge, Madhubani, in connection with Sessions Trial No.311 of 2009 arising out of Khajauli (Kaluahi) P.S. Case No. 380 of 2008 corresponding to G.R. Case No. 3667 of 2008. 3. The case of the Prosecution as per the statement of the deceased Ishrat Khatoon is that on 1.12.2008 while she was cooking in her courtyard, her husband came and when she asked him to get salt, an altercation arose between them, in course of which, her husband tied up her hands and legs and poured kerosene oil on her while her elder brother-in-law Md. Zahoor brought a match stick and lit it. On raising hulla, Md. Shakir and others came who tried to save her. This statement was given by the deceased at DMCH in course of treatment on 5.12.2008 i.e. 4 days later. 4. During Trial, the Prosecution examined 5 witnesses whereas the defence examined four witnesses. 5. The defence of the Appellant was that the deceased had been burnt incidentally while cooking and the family had taken an effort to remove the deceased to the Hospital for better treatment, but unfortunately, she died. 6. PW 1 (Akbari Khatoon) is the mother of the deceased who stated that she had married her daughter the deceased with the Appellant. She received information at 9:00 P.M. that the Appellant Md. Zahoor and Md. Zaheer had burnt her daughter. However, since she did not get any vehicle, it was only the next day she reached the village along with her daughter Sadqua Khatoon, PW2. When she went to the matrimonial home of her daughter, she saw the deceased was in an unconscious state, so she boarded her on a Jeep. Zahoor and Md. Zaheer had burnt her daughter. However, since she did not get any vehicle, it was only the next day she reached the village along with her daughter Sadqua Khatoon, PW2. When she went to the matrimonial home of her daughter, she saw the deceased was in an unconscious state, so she boarded her on a Jeep. On the way, the Appellant also sat in the Jeep. They then took the deceased to DMCH from where the Appellant just disappeared. She stated that the deceased had regained her consciousness after four days and had given the statement that the deceased and Appellant had altercated over salt at which Appellant Zahoor tied her up and Zahir lit a match stick. She allegedly signed on the statement of the deceased who died one month later. In cross examination she stated that the deceased was previously married and from that marriage, she had a child and even she was examined about 4-5 days later. She confirmed that the entire body of her daughter was burnt from the head to the toe and she had died at Darbhanga because of bedsores. Her attention was drawn to the earlier statement regarding information having been given to her or as to who had brought the deceased to the Hospital and that after four days on regaining consciousness the deceased had disclosed about the manner of occurrence. She denied the suggestion that in fact, information has been sent to her that the deceased was being taken to the hospital and she should also reach there directly. 7. PW 2 (Sadqua Khatoon) sister of the deceased also supported her mother saying that she received information that her sister had been burnt after which she and her mother went to her sister’s house. She was then removed to Madhubani and then to Darbhanga. In the meanwhile, the Appellant Md. Zaheer fled away from there. Four days later, when her sister regained consciousness, she gave her statement before the Police. She learnt from her sister that Zaheer tied up her and Appellant Md. Zahoor poured kerosene oil and lit her with a match stick. She stated that she herself was married about fifteen years before and the deceased was divorced and had a child from the first marriage. She confirmed that the deceased and the Appellant had married in the Court. Zahoor poured kerosene oil and lit her with a match stick. She stated that she herself was married about fifteen years before and the deceased was divorced and had a child from the first marriage. She confirmed that the deceased and the Appellant had married in the Court. It was the first time they had gone to her matrimonial home. Her attention was drawn to the earlier statement that she had not stated that she heard from Zaheer about the occurrence and she came to the hospital on information given by him or that when her sister regained consciousness, she told them about the manner of occurrence. She stated that her sister was treated at DMCH for twenty days and died on account of bedsores. 8. PW 3 (Raj Kishore Singh) is the Investigating Officer who stated that on 18.12.2008, he received the Fard-beyan of the deceased from Darbhanga upon which he instituted a First Information Report. He proves the same as Ext. 1. Also the signature of the then Police Officer on the same which he proves as Ext. 3. He inspected the place of occurrence which was small courtyard whereafter he examined several witnesses. He once again recorded the statement of the deceased on 24.12.2008 who supported the factum of her earlier statement. However, she added that the Appellant Md. Zahoor had brought her to the Hospital from where he fled away. In cross examination there is nothing which is of note. 9. PW 4 (S.S. Sarang) is a formal Police Officer who took over investigation on 1.6.2009 and obtained the postmortem examination report whereafter he examined few witnesses as also arrested Mumtaz. There is nothing which is worth relating in the cross-examination. 10. PW 5 (Dr. Prafulla Kumar Das held the postmortem of the deceased on 1.2.2009 i.e. two months after the occurrence and found following injuries on her person:- a. Dead body was of average built ragormortis had passed of in the upper limbs but still present in both lower limbs. b. Folley’s catheter was found in site. Extensive infected dermo epidermal burn was found on the body involving face, chest, abdomen, perineum, both upper limbs and both the lower limbs up to knee. Bed sores was found on the back in five inches diameter, area in the middle. Bases of the ulcers were covered with yellowish-Green pus. Margins showed healing processes with ohonic granulation tissues. Extensive infected dermo epidermal burn was found on the body involving face, chest, abdomen, perineum, both upper limbs and both the lower limbs up to knee. Bed sores was found on the back in five inches diameter, area in the middle. Bases of the ulcers were covered with yellowish-Green pus. Margins showed healing processes with ohonic granulation tissues. Bandage were also shocked with pus c. On dissection- Both lungs and all the abdominal viscera that is liver,, spleen and both kidneys were found pale. Right side of heart was full of dark fluid blood and left empty. Stomach contained 200 ml watery liquid with pale gastric mucosa. Bladder was found empty. Opinion: Above noted injuries were ante mortem dangerous to life in ordinary course of nature and were caused by flames of fire. d. Death was due to septicemia, toxemia and shock. e. Time since death was within 24 hours from the time of postmortem examination. He proves the postmortem examination report as Ext. 4. In cross examination, he explained that the deceased had died on account of septicemia and toxemia on account of the bedsores which was infected. 11. DW 1 (Md. Kalim), DW 2 (Murari Yadav), DW 3 (Bahadur Yadav and DW 4 (Debu Yadav) have stated that on the date of occurrence, they learnt that the wife of Appellant Zahoor had been accidentally burnt upon which the car of Defence witness No. 1 was booked and the deceased was taken to the Hospital. The in-laws of the deceased were also boarded on the same vehicle. 12. On going through the evidence of the witnesses, we find that no doubt the occurrence is said to have taken place on 1.4.2008 whereas the statement of the deceased was recorded on 5.12.2008. The signatories to the statement is PW 1 (Akbari Khatoon) mother of the deceased. In her evidence, she had stated that the Appellant Md. Zahoor had boarded the vehicle on which the deceased was being taken to the Hospital. Same statement has been given by PW 2, the sister of the deceased, who also stated that the Appellant Zaheer was also in Hospital along with the deceased and it was only thereafter, he fled away from there. This evidently is not the natural conduct of a human being who had just attempted to kill his wife. Same statement has been given by PW 2, the sister of the deceased, who also stated that the Appellant Zaheer was also in Hospital along with the deceased and it was only thereafter, he fled away from there. This evidently is not the natural conduct of a human being who had just attempted to kill his wife. In such circumstances, the absence of any independent witness of the village in support of the Prosecution case assumes importance. In this background, we are inclined to take note of the defence witnesses who have stated that the deceased was taken to the Hospital by the in-laws. It also appears that the deceased died two months later on account of septicemia and toxemia. No Doctor had certified the oral statement of the deceased even though it was recorded at the Hospital after four days she was hospitalized. It appears that PWs 1 and 2 have tried to explain the delay in recording the statement by saying that the deceased was unconscious for the next four days but no Doctor has come forward to certify this fact that or that after regaining consciousness, she was in a position to give the statement that she had. 13. In view of the above, giving benefit of doubt, the Appeals are allowed and Judgment of conviction dated 8th December, 2011 and order of sentence dated 9th December, 2011, passed by the Additional District & Sessions Judge, Madhubani, in connection with Sessions Trial No.311 of 2009 arising out of Khajauli (Kaluahi) P.S. Case No. 380 of 2008 corresponding to G.R. Case No. 3667 of 2008, are hereby, set aside. 14. The Appellant Md. Zahoor of Cr. Appeal (DB) No. 156 of 2011 and Appellant Md. Zahir @ Md. Zaheer of Cr. Appeal (DB) No. 380 of 2011, who are in jail custody, are directed to be released forthwith, if not wanted in any other case. Appeals allowed.