Hamid Momin And Anr. Vs State of Bihar

1. The present appeal has been filed against the Judgment of conviction and order of sentence both dated 19.01.1998 passed by the learned 3^rd Additional Judicial Commissioner, Ranchi in Sessions Trial No. 422 of 1996 whereby both the appellants have been convicted under Section 302/34 of the Indian Penal Code and have been sentenced to undergo R.I. for life.

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2. The case of prosecution is based upon the fardbeyan of one Nur Islam Momin S/o late Habib Momin resident of Goradih Tola Bahmani P.S. Silli District Ranchi. This fardbeyan has been recorded on 28.10.1995 at 12:30 P.M at the house of the informant who stated therein that yesterday i.e. on 27.10.1995 at about 2:00 P.M. he went to Goradih market and when he was returning then he got information that his mother was given beatings, then by running he reached the home and saw his mother Mehjin Bibi was lying on the ground in unconscious condition in the bari (garden) of karim Momin. Informant further stated that his nani Gudni Bibi had also told him that when his mother was coming from river, after taking bath then villager Hamid Momin and his wife Sahnaj Bibi laid her on the ground and with intent to kill her, given leg and fist blows on her chest and

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stomach. Then informant and villager namely Harun Momin and other villager removed mother of informant on the cot to veranda of the house and when his mother got conscious then she told that Hamid Momin and his wife have given leg and fist blows on her chest and stomach and while telling so, she got unconscious and died immediately. Cause of incident as stated by informant is that her mother got married with Hamid Momin a year back and his mother used to ask from him her maintenance but Hamid Momin did not provide the same and on account of this, quarrel used to take place between them and he also used to tell that his mother would be liquidated. Upon aforesaid fardbeyan of informant, an FIR being Sill P.S. Case No. 68/1995 under Section 302/34 of IPC has been registered.

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3. After investigation I.O. has filed chargesheet being chargesheet no. 13 of 1996 dated 10.03.1996 against both the appellants and thereafter congnizance of the offence was taken and case was committed to court of sessions on 19.07.1996. Charge under Section 302/34 of IPC has been framed against both the appellants on 24.09.1996 to which they denied and claimed to be tried. After examination of witnesses statement of accused persons was recorded on 18.11.1997 under Section 313 of Cr.P.C. in which appellants categorically denied allegation against them.

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4. To prove its case prosecution has examined as many as nine witnesses out of which four witnesses i.e. P.W-1, Harun Momin, P.W-2 Md. Naseer, P.W.-3 Jetha Singh Ghatwar, P.W-4 Satar Momin are co-villager of the informant but they have not supported the case of prosecution. P.W.-5, Dr. Ajeet Kr. Choudhary has conducted post mortem examination on the dead body of Mehjin Bibi. P.W. 6, Bhola Pandit and P.W.-9, Brij Nandan Paswan are the I.Os. of the present case and P.W.-9 had taken the charge of investigation when almost investigation was over.

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5. P.W.-7, Noor Islam Momin is the informant and son of the deceased whereas P.W.-8 Gudhro Bibi is the mother of deceased and nani of P.W.-7. As per prosecution case, mother of the deceased P.W.-8, Gudhro Bibi is the eye witness of the incident of the present case and son of the deceased P.W. 7, Noor Islam Momin is the person who alongwith other

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villager removed the deceased on cot from bari of Karim Momin to verenda of his house and allegedly when deceased regained her sense she divulged the incident to him (P.W.-7) by saying that both the appellants have given leg and fists blows on her chest and stomach and thereafter she died.

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6. To appreciate the material evidence brought on record on behalf of prosecution, it is necessary to reproduce the evidence of P.W.-7 & P.W.-8 P.W.-7 has deposed that incident is of 27.10.1995 and he went to bazaar (haat) and while returning villager told him that his mother was being given beating by Hamid Momin and his wife Sahnaj Bibi and he came towards his home by running and saw the above said two persons were giving beatings to her mother in Karim’s baari and he saw his mother in unconscious condition. With the help of others his mother was removed on cot to his house, where his nani was there, who also told about the incident to the informant. At para 3 of examination-in-chief, he has also stated that his mother had also told him about them (appellants) after getting a bit consciousness and thereafter, she died. Motive assigned by this witness is that his mother was asking for maintenance as she was left by Hamid after marriage. In cross examination he has also stated regarding marriage of his mother with Habib Momin and out of that wedlock informant and one sister borne out and sister was elder to her. He has also stated that as it had become evening on the day of incident, he could not give information and police station is 10-12 Kilometer away from his house and there is no metalled road in between his village and police station. He has also stated that he has not intimated incident to panchayat and he denied the suggestion of defence that one case of rape was lodged against his Nana by accused person, therefore, they have been falsely implicated in the present case. 7. P.W.-8, Gudoro Bibi has deposed that her daughter’s name was Mehjin Bibi and she got married with Hamid and Hamid contracted second marriage and Sahnaj Bibi (appellant no.2 herein) is his second wife. She further stated that her daughter (deceased) after returning from river was sitting near cot and she (P.W.-8) sat on the door in eastern side, then Hamid laid her daughter down by caught hold of her hair and

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Sahnaj Bibi did marpit with her daughter and Sahnaj Bibi had also given the iron daab blow to her daughter and she could not able to save her daughter and on making commotion Harun, Nurun Islam, Naseer and others came but by that time both the accused persons fled away. In cross examination she has stated that her daughter Mehjin Bibi contracted first marriage with Habibullah 25 years back and he was her villager. She has conceded to the fact that one false case of rape was lodged against her husband and her husband was old person.

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8. P.W.-6 Bhola Pandit is the I.O. who has identified his writing and signature on the fardbeyan and same has been marked as exhibit 3. Formal FIR has also been marked as Exhibit 2. He further stated that he inspected the place of occurrence at the behest of informant and it is Karim Momin’ s baari which is sixty feet away from the northern side of house of the informant where it is alleged that accused persons had given beatings to the deceased. He also stated that death inquest report was prepared by him and same has been marked as Exhibit-4. He has also stated that there is one dhaba towards one side of the house of informant and thereafter one road and one masjid is situated at 60 feet away from that road and towards north side of this masjid there is baari of Nijam Bibi and thereafter, there is baari of Karmim Momin. He further stated that no one has given information about the incident and on rumor they visited to the place of occurrence and he recorded the statement of informant Noor Islam Momin and mother of deceased on second day of the incident. He further stated that re-statement of informant was taken at 12:30 P.M. and thereafter inquest report was prepared and he inspected the place of occurrence, thereafter, statement of Gudoro Bibi got recorded.

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9. This witness has stated that informant has not stated before him that he saw both the accused persons were given beatings to his mother in the Karim’s baari rather informant has stated on heresay basis.

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10. I.O. has further stated that Gudoro Bibi has also not stated that her daughter came back to house from river and was sitting near cot and she was sitting at the door towards east and Hamid laid her daughter down by

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caught hold of her hair and Sahnaj Bibi did marpit with her and she had also not stated before him that deceased was given iron daab blow by Sahnaj Bibi.

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11. P.W.-5 , Dr. Ajeet Kr. Choudhary, who examined deceased on 28.10.1995 and found no external evidence of any mechanical injury on the person of deceased but internally there was contusion of soft tissue on the right side of forehead and adjoining scalp of occipital parietal scalp. Doctor has also found presence of sub dural blood and blood clots over both side of brain and more on right side. Doctor has opined that injuries were antimortem caused by hard and blunt substance and death was due to head injuries. He has also proved post mortem report as Exhibit 1. In crossexamination he has categorically stated that he did not find any sign of pressure on chest.

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12. Learned counsel for appellants started his argument by making submission that in the present case, firstly prosecution has not been able to prove the place of occurrence as the so called eye witness, P.W.8 has stated place of occurrence as the front of her house, but P.W. 7 has stated that it is Karim Momin’s baari. On above said point of non proving of place of occurrence, submission has been made that P.W. 8 is only eye witness in the present case and as she has changed the place of occurrence because informant (P.W.-7) and I.O. (P.W.-6) have stated the place of occurrence as Karim Momin’s baari. So, appellants are entitled for exoneration from charges on this point alone as entire case of prosecution has become doubtful.

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13. Furhter submission has been made on behalf of appellants that even the ocular evidence does not find corroboration from medical evidence and this also create doubt about the veracity of testimony of witness who claims herself to be eye witness. It is further pointed out that FIR is delayed by one day and there is no proper explanation has come on record, which itself also creates doubt about the veracity of prosecution story.

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14. Learned A.P.P. for the State submitted that considering the social strata of witnesses, minor contradictions/discrepancies ought to be avoided

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by this Court and there is proper explanation which has come from the mouth of informant P.W.7 that police station is 10-12 Kilometers away from the house of informant and it was not a metalled road as such information could not be given to the police station on the day of incident. He further pointed out that law is settled that when there is difference between ocular evidence and medical evidence, priority ought to be given to ocular evidence.

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15. As stated in preceding paragraphs that, none of the villager has supported the case of prosecution and only son (P.W.-7) and mother (P.W.-8) of the deceased deposed before court divulging the alleged culpability of appellants in commission of crime. P.W.-7 is the informant who happens to be son of the deceased and has stated in his testimony that on the date of incident i.e. on 27.10.1995 while he was returning from the market, villager told him that both the appellants were giving beatings to his mother and he immediately rushed towards his home and saw both the appellants were giving beatings to her mother in Karim’s Bari and mother fell down and got unconscious, thereafter he with the help of others removed her mother on cot to his home where his nani was there and she (nani) also divulged the incident to him. The fact of stating the name of appellants by the villager as the persons who were giving beating to his mother while he was returning from the market does not find corroboration from his fardbeyan vide Exhibit 3. Further the fact that informant saw the appellants who were giving beatings to his mother in Karim’s bari also does not find corroboration from the fardbeyan of the informant vide Exhibit 3. As far as P.W.8 is concerned, she has testified that her daughter (since deceased) was coming from river and was sitting near cot and she (P.W. 8) was sitting towards the eastern side of the door of the house, then Hamid laid her daughter (since deceased) down by caught hold of her hair and appellant, Sahnaj Bibi did marpit with her daughter and she had also given iron daab blow to the deceased. This witness has improved her version which is very much apparent from the deposition of the I.O, Bhola Pandit (P.W.-6) who has stated categorically that P.W. 8 had not stated to him that her daughter came from the river and

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was sitting near the cot and she (P.W.-8) was sitting near the door towards eastern side of the house and appellant Hamid by caught hold of her hair laid the deceased down and appellant Sahnaj Bibi did marpit with her daughter. I.O. has further stated that no such statement was also made by P.W. 8 that appellant Sahnaj Bibi given iron daab blow to the deceased. It further transpires that I.O. has inspected the place of occurrence which is stated by I.O. as well as P.W.-7 as the bari of Karim Momin, which is 60 feet away from the house of informant/deceased. But as per version of P.W.8 place of occurrence is front portion of the house of the informant (P.W.-7), but as per I.O. (P.W.-6) and informant (P.W.-7) place of occurrence from where it is alleged that deceased was removed to her home on the cot, is the bari of Karim Momin which is a bit away from the house of the informant. Needless to say that it is no one case that after given beatings in front of home of informant, deceased was taken to bari of Karim Momin. Hon’ble Apex Court in the case of Syed Ibrahim vs. State of A.P. reported in (2006) 10 SCC 601 held that where the place of occurrence itself has not been established it would not be proper to accept the prosecution version. 16. In the present case, as far as manner of occurrence is concerned, the ocular evidence available on record indicates that both the appellants had given leg and fist blow on the stomach and chest of the deceased, however doctor (P.W.-5) who conducted post mortem on the dead body of the deceased has categorically stated in his testimony that he did not find any sign of pressure on chest and he also did not find any external evidence of mechanical injury on the person of deceased rather, doctor, (P.W.5) found that there was contusion of soft tissue on right side of forehead and adjoining scalp and occipital parietal scalp. He has also noticed presence of subdural blood and blood clots over both sides of brain and more on right side. Doctor has opined death on account of head injury. A complete contradiction or inconsistency between the medical evidence and the ocular evidence on the one hand and the statement of the prosecution witnesses between themselves on the other, may result in seriously denting the case of the prosecution in its entirety but not otherwise.

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17. From above said medical evidence available on record and ocular evidence as stated above, We are of considered view that the manner in which incident stated to be allegedly committed by appellants becomes doubtful. Our view also fortified from the fact that incident is of the evening of 27.10.1995 but no intimation was given to police station or even to panchayat and the explanation which has come from the mouth of informant (P.W.-7) is that it had become evening that’s why information was not given, does not appear to be convincing one. Further testimony of I.O. (P.W.-6) reveals that no intimation of incident was given to police station, even on next day of the incident, rather police has visited to the place of occurrence of its own after getting rumors on the next day of incident. As far as, oral dying declaration by the deceased before P.W.-7 is concerned, P.W.-7 has only stated that his mother had also stated regarding the above said matter when she regained sense a bit. In his testimony P.W.7 has not stated exactly that what was stated by deceased to him, however, he has stated in his fardbeyan (vide Exhibit-3) that his mother told him (P.W-7) that Hamid Momin and his wife given leg and fist blows on her chest and stomach and while telling so she got unconscious and died immediately. It is trite law that fardbeyan is not substantive piece of evidence and even otherwise, as stated earlier that truthfulness of the version of witness regarding giving of leg and fist blow to the deceased is doubtful because no external injury or pressure on the chest of deceased was found and injuries were found only on the head of the deceased and doctor has opined head injury as the cause of death of deceased. Now it is required to be noted that Contradiction in the version of P.W.-7 as stated and improvement made by P.W. 8 make it doubtful that either P.W.-7 or P.W.-8 were/are the eyewitness(s) to the incident. 18. Above stated analysis of factual matrix of the present case clearly suggests that prosecution has not been able to prove place of occurrence (P.O.), manner of occurrence and also that P.W.-7 &/or P.W.-8 are the eye witness(es) of the incident. The above stated aspect has not been considered

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by learned trial court while passing the impugned judgment dated 19.01.1998 as such the said impugned judgment is liable to be set aside.

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19. We, as a consequence of the discussion made herein above, set aside the Judgment of conviction and Order of sentence both dated 19.01.1998 passed by learned 3^rd Additional Judicial Commissioner, Ranchi in Sessions Trial No. 422 of 1996.

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20. Accordingly, this appeal is allowed.

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21. Since, the appellants are on bail, they are discharged from the liability of their respective bail bonds.

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22. Let trial court record be sent back to the court concerned.

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(Rongon Mukhopadhyay, J.)

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(Arun Kumar Rai, J.)

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Jharkhand High Court, at Ranchi Dated :- 01 /07/2025 Rajnish/-N.A.F.R