Allowed

Wasimuddin and Ors. v. the State of Bihar

Patna HC26 Jul 2013CR. APP (DB)/529/1990

Case brief

AI extract

What is this about?

In this criminal appeal against conviction and life imprisonment for murder, the Patna High Court acquitted the appellants. The Court held that the prosecution failed to prove the charge beyond reasonable doubt due to the doctor's failure to find ante-mortem injuries and the inability to establish the alleged motive for the killing.

What did the court decide?

Conviction and order of sentence set aside; appellants acquitted of the charge and discharged from bail bonds.

Wasimuddin and Ors. Vs the State of Bihar — Murder and Culpable Homicide | Patna HC (2013)

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.529 of 1990

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----------

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Against the judgment of conviction and order of
sentence dated 04.12.1990 passed by `Sri
R.P.Chaudhary, 4th Additional Sessions Judge,
Munger in Sessions Case No. 433 of 1987.

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===============================================
1.Wasimuddin

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2.Kasimuddin @ Sayed Kasimuddin

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 both sons of Nasimuddin,resident of

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 village Maharajganj, P.S.Jamui,

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 District Munger .... .... Appellants

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Versus

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 The State of Bihar … … Respondent
===============================================
Appearance :

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For the Appellant/s : M/s N.A.Shamsi & Neeraj
 Kumar @ SANIDH,Advocates
For the Respondent/s : Mr.Ajay Mishra,Addl.P.P.

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===============================================

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CORAM:HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
 AND

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HONOURABLE MR.JUSTICE RAJENDRA KUMAR MISHRA
ORAL JUDGMENT

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(Per: HONOURABLE MR.JUSTICE SHYAM KISHORE SHARMA)
Date: 26-07-2013

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---------

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 An affidavit containing copies of the

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death certificates of Syed Taslimuddin Ahmad alias

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Syed Taslimuddin (appellant no.2 Tassanuddin),
Syed Nasimuddin (appellant no.4) and Syeeda
Khatoon (appellant no.5) has been filed. The death
certificates have been issued by Jamui

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Municipality. Learned APP does not counter the

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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assertion or casts doubt over authenticity of
Xerox copies of death certificates. It is
relevant to mention here that Taslimuddin
(appellant no.2) was aged 40, Nasimuuddin
(appellant no.4) was aged 75 and Sayeeda Khatoon
(appellant no.5) was aged 63 years respectively at
the time of recording statement under Section 313
of the Code of Criminal Procedure and about 23
years have passed thereafter.

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2. In view of the affidavit and also in
view of uncontroverted submission, the appeal on
behalf of aforesaid three appellants abates and
now judgment will follow for appellant no.1
Wasimuddin and appellant no.3 Kasimuddin @ Sayed
Kasimuddin.

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 The appeal is against the judgment

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dated 04.12.1990 passed by the learned 4th
Additional Sessions Judge, Munger in Sessions Case

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No. 433 of 1987 convicting the appellants under
Section 302/34 of the Indian Penal Code and
sentencing each of them to undergo imprisonment
for life.

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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4. The death/killing of Aliya Khatoon
wife of appellant Wasimuddin had led to
registration of an U/D case earlier on the basis
of statement of Wasimuddin which was reported
about accidental death due to burning.
Subsequently, on the basis of statement of Sayeed
Azhar (P.W.8) with regard to killing of his sister
Aliya Khatoon, an FIR (Ext.4) was registered
against the appellants for offence under Section
302/34 of the Indian Penal Code. Sayeed Azhar
had reported to Jamui police that his sister Aliya
Khatoon aged 28 was married to Wasimuddin
(appellant no.1) son of Nasim Uddin (now dead)
about 5 years prior to the occurrence. She was not
being properly cared by her in-law and her in-laws
used to assault her regularly. The motive behind
that was that informant’s sister has undergone
surgical interference for appendicitis which had
resulted expenditure of Rs.12,000/-. Aliya was
being tortured to bring the said amount from her
Naihar. Letters were written for the said amount
by Aliya to his brother. On 10.06.1986

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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informant’s father Hakim Ziaul Hassan (P.W.3) went
to Jamui Maharajganj and knew through relatives
of the village Amrath and some persons of Jamui
that Aliya Khatoon has been killed by her in-laws
and she has been buried on 08.06.1986. The police
went to the place of occurrence and prepared
inquest report (ext.6). Certain seizures were made
(ext.8). The letters (Ext. 2 to 2/2) through which
alleged demand was made were seized and were sent

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to the expert of Science Laboratory for
examination and report. The place of occurrence
was inspected and statements of the witnesses were

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taken. The case was found to be true, so
chargesheet was submitted. Cognizance was taken
and after supply of police papers, case was
committed to the court of Sessions where charge

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under Section 304/34 of the Indian Penal Code was

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framed and explained to the accused persons to

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which they pleaded innocence. Hence trial

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5. The defence of the accused persons

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was that it was a case of suicide and that was

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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immediately reported to police which has resulted
into institution of one U/D Case. All the in-laws
and others participated in burial and it was due
to ulterior motive, the informant has made out a
case of murder in collusion of police.

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6. In order to establish its case, the
prosecution examined 10 witnesses. They are :
P.W.1 Jamal Ahasan Jilani, an inquest witness,
P.W.2 Mahfuzur Rahman, FIR named witness and

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brother of the deceased but subsequently declared
hostile, P.W.3 Hakim Zainul Hassan, father of the
deceased, P.W.4 Mohsin Akhtar, P.W.5 Samimul
Hassan, another hostile witness, P.W.6 Badrul
Hassan, another hostile witness, P.W.7 Shamim
Afzal, a tendered witness, P.W.8 Sayeed Azhar,
informant of the case and brother of the deceased,
P.W.9 Naresh Pd.Sharma, Investigating Officer of
the case and P.W.9 is Dr.Chandesar Pd. Sinha who

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conducted autopsy over the dead body of the
deceased.

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7. The defence has examined one Anil Kumar
Mandal as D.W.1.

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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 8. The trial court after considering the

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evidences on record and after hearing the
arguments of learned counsel for the parties
opined that the prosecution has been able to prove
the charge against the accused persons beyond the
shadow of all reasonable doubts and has passed the
order of conviction and sentence, as stated above.

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9. This Court is required to reappraise
the evidences on record and to see as to whether
there were materials on record to prove the charge
against the appellants beyond the shadow of all
reasonable doubt or not.

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10. First of all, we would like to discuss
the evidence of the doctor. P.W.10 is the doctor
who on 08.06.1986 was posted as 2nd Medical
Officer, Sub Divisional Hospital, Jamui, Munger
and on the same day at 5.30 P.M. performed post
mortem over the dead body of the deceased Aliya
Wasimuddin wife of Syed Wasimuddin of village
Maharajganj, P.S.Jamui, District Munger aged 25
years and found that the dead body was with
partial rigor mortis and the lower limbs were bent

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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and stiff due to burnt skin of the body. The skin
of the whole body from the head to toe was brunt
in different thickness. Hairs were also burnt but
a part of it was left. A part of the skin of the
right leg was red and there were blisters at the
margin. The injuries were ante mortem in nature
caused by fire and death was within six hours. The
death was due to severe shock due to burnt area of
skin of whole body leading to circulatory failure.

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In cross-examination, the doctor has stated that
he was treating Alia from before as she was his
patient and she was advised for blood examination
and X-ray of chest. She had delivered a child two
months back and she was very weak. So she was
advised for X-ray of chest. This witness had
treated her up to 05.06.1986 meaning thereby she
was treated even two days prior to the occurrence.
On the report of this witness, technician of the
hospital examined her in the hospital on the same
day. On the basis of the report of the technician,
this witness had prescribed some medicine. This
witness has proved the prescription which has been

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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marked as Ext.A which is in his pen and signature.
This witness found only burn injuries on the body
of the deceased.

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11. Now we discuss the evidence of the
informant P.W.8. This witness has stated that on
08.06.1986 at about 2.00 P.M. he had been to his
in-laws house for celebrating Eid festival. On
10.06.1986 he went to see his sister. As soon as
he got down from the Bus, he knew about the
present occurrence. Shamimul Hassan (P.W.5) told
that Aliya has been done to death by her in-laws.
She was assaulted and thereafter she was killed.
This witness knew about the occurrence from Nanhi
who was a maid servant in the house of the accused
and a witness of the whole occurrence. She
narrated every things about the occurrence. The
informant rushed to the house of his brother-in-
law Wasimuddin but the door of the house was

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bolted from inside. There he came across the
information about the death of his sister. Door
was not opened. Thereafter this witness went to
police station where the accused persons were

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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present. The police was informed about the
occurrence but the Officer-in-charge did not pay
any heed. The informant thereafter came out of the
police station and again went there when the
accused persons came out. The Officer-in-charge
told this witness that an U/D case has been
registered with regard to suicidal death of his
sister. Informant’s father Hakim Ziaul Hassan
(P.W.3) met him who was told by the relatives and
other people of Amrath that Aliya was assaulted
and thereafter killed which has been confirmed by
Nanhi, a maid servant of the accused persons. When
the Police Officer was not taking the matter
seriously, the informant rushed to Munger to meet
Superintendent of Police. The Superintendent of
Police was Sri Gautam. On that day, he could not
meet Superintendent of Police. On the next day
i.e. on 12.06.1986, the informant, his father and
his elder brother met with the Superintendent of
Police and told him about the occurrence. The
Superintendent of Police advised him to go to

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Jamui where case would be registered. Informant,

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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his father and his elder brother reached Jamui and
on that date itself at 6.00 P.M. statement of the

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informant was recorded by P.W.9 which resulted
into FIR. The informant has stated that Aliya was
being assaulted regularly and a demand of
Rs.12,000/- was being made which was spent in
connection with treatment of informant’s sister.
The informant’s sister had written a letter to her
elder brother Mahfuzur Rahman (P.W.2), a copy of

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which was given to the Officer-in-charge. She had
written 3 to 4 letters. Those letters were
produced which have been marked as Exts. 2, 2/1
and 2/2.

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12.The consistent evidence of the
informant (P.W.8) is that the case was not
initially registered and the killing was due to
failure of the victim Aliya to bring Rs.12,000/-
though some amount was also paid. The entire
occurrence was also told by Nanhi (maid servant of
the accused persons) who informed that prior to
death Aliya was beaten. This witness has been
supported by other witnesses namely, P.Ws.3 and 4.

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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13. The death of Aliya was in the house of

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the appellants and it was on account of burn

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injuries. She was residing with her in-laws. She

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was wife of Wasimuddin, appellant no.1. These
facts have been established and no cross-
examination has been made on these facts. Her

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death on account of burning is not under dispute.
The point for consideration is as to whether
Aliya was burnt to death or her death was

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accidental or suicide.

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14. Learned counsel for the appellants has

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submitted that the sole witness of the occurrence

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was Nanhi, a maid servant of husband of the
deceased, and her statement to all was that Aliya
was beaten and thrashed mercilessly and thereafter
she was killed. The doctor holding post mortem has
not found any ante mortem injury caused by hard
and blunt substance on her, so the information

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which had come from Nanhi regarding cause of death
was not corroborated. The doctor’s specific
evidence was that the death was on account of burn
injuries and doctor has not found any injury of

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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assault or thrashing. On this basis, it has been

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argued that withholding of Nanhi by the

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prosecution has caused prejudice to the appellants
and it was her evidence alone which could have
distinguished and have established as to whether
it was a case of suicidal or homicidal death. Once
that was not brought, an adverse inference is to
be drawn against the prosecution. The prosecution
has deliberately withheld Nanhi. Further

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submission is that there is no corroboration of
the version given by Nanhi regarding manner of
assault and on this score alone it has been
submitted that vast gap has been left in the
evidence as gathered by the prosecution and the
case raised by the prosecution is fit to be

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doubted and discarded. It has also been submitted
that as to why the occurrence of 08.06.1986 was
reported to police on 12.06.1986. From the FIR
itself it is clear that the informant knew about

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the occurrence on 10.06. 1986 but no prompt step

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was taken for informing the matter to the police.
It has also been submitted that the prosecution

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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was determined to fix the case and for that it

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provided fake letters of different handwritings
and that has been proved by scientist and expert
and on this score it is stated that the

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prosecution was determined to lodge a false case.

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15. On the other hand, learned A.P.P. has

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submitted that under Evidence Act there are some
presumption. The defence was to explain as to
under what circumstances Aliya died in her house.

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Considering all the facts and circumstances of the
case, it is apparent and established that it was
a case of pre-planning.

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16. Informant (P.W.8) in paragraph 10 of
his deposition has stated that he met

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Superintendent of Police, Munger on 12.06.1986 and
gave an application to Superintendent of Police,
Munger and a copy of the same was handed over to
the Officer-in-charge. There is no such paper

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available on the record to show that as to whether
prior to institution of the present FIR, any

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information was given to the police and if it was
given, the prosecution should have brought the

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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same on the record. P.Ws. 3 and 4 have gone to
police station according to prosecution but this
fact has been contradicted by P.W.9 in paragraph
16 of his deposition. The motive of the occurrence
was demand of Rs.12,000/-by the in-laws of Aliya
from the informant and his brother. The said
amount was spent at the time of operation of
appendicitis of the victim. From the evidence
which has been brought on record it is apparent

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that operation of Aliya was held prior to her
marriage which comes from the evidence of P.W.7
in paragraph 3. P.W.3, father of the deceased, has

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stated in his evidence that Aliya was operated
upon by Dr. Kamal Ashraf at Patna. This fact has
been supported by P.w.8 in paragraph 11 of his
evidence. During operation it was noted that Aliya
is daughter of P.W.3. On the strength of this
evidence, it has been argued by learned counsel

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for the appellants that in case of married lady,
the name of her husband is noted and not of father
meaning thereby Aliya was operated upon before
marriage. If the marriage was performed after

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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operation, then there was no question of demanding
any money. That was the motive of the occurrence
and the motive thus failed. It has also been
submitted that P.W.2 is none else rather the full
brother of the deceased who in his evidence in
paragraph 6 has denied that any demand of money
was made. P.W.8 in paragraph 13 has stated that
the deceased Aliya never wrote letters to him with
regard to demand of Rs.12,000/-. Therefore, the
motive with regard to killing is not established
beyond doubt. The brother of the deceased P.W.2
cannot be said to be on inimical term with
informant or deceased. If elder brother of the
deceased stated that no such demand was made, then
it has to be considered. Not only that the
evidence has come that operation was done prior to
marriage and it is not conceivable that even after
marriage issue was raised and same demand was made

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with regard to treatment before marriage.
Therefore, the motive of the occurrence was not
established. Not only that when statement of the
accused under Section 313 Cr.P.C. was recorded,

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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question was put to the accused regarding demand
of Rs.12,000/- which was spent on operation of
Aliya, but the accused denied the allegation.
Another circumstance which has come on the record
is that the accused persons were found present
after the occurrence in the house. Thus, on this
basis it can be said that the accused persons were
not guilty. It is commonly seen that the offender
loses mental balances and by hook and crook his

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first step is to escape from the place of
occurrence immediately after the occurrence. The
house of P.W.1 is adjacent to the P.O. house and
he is a relative of the informant. He has stated
in his evidence that he reached at the place of
occurrence just after hearing the sound of weeping
of Wasimuddin and his parents. They called a
compounder for treatment. P.W.5 in paragraph 9 of
his evidence has stated that he found the accused
persons near the dead body of Aliya. Similar is
the evidence of P.W.6 in paragraph 6. P.W.8 in
paragraph 20 has admitted that the accused persons
had called a doctor. From the evidence of this

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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witness goes to show that the accused persons had
taken care of Aliya. Not only doctor was called
but the matter was informed to police also. It has
come through the evidence of P.Ws.1,5 and 6 that
30 to 40 persons accompanied the dead body to the
burial ground. They crossed for the burial ground
through main market of Jamui. It goes to show that
there was full participation and the accused
persons never wanted to conceal the matter. Ext.2

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is a letter written by deceased Aliya to P.W.2
which goes to show the misbehaviour of the accused
persons with the deceased but P.W.2 has
categorically stated that the deceased was never
assaulted or misbehaved. Ext.2 does not mention
the date of writing. Similarly, in Exts. 2/1 to
2/2 there is no averment of misbehaviour. On the
other hand, Exts.A and B show that the Aliya was
under treated by doctor up to 05.06.1986 and
death occurred on 08.06.1986. If a person is
intending to cause death, then he would not have
taken his wife to the doctor regularly.

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 17. The prosecution has failed to produce

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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one more important and neutral witness Nanhi who
had detailed about the occurrence. The details
given by her was with regard to thrashing and
assaulting the deceased Aliya which has not been
corroborated by evidence of the doctor. Non-
bringing of Nanhi or non-corroborating of version
given by Nanhi rendered the circumstances which
have to be taken into account. It does not appear
that the accused persons were callous and the
matter was reported to police which has come in
evidence of informant who has stated that when he
went to police station, accused persons were there
from before and the police informed him that the
matter has been reported to them. The motive of
the occurrence which was demand of Rs.12,000/-was
not established. Once the motive fails, then the
doubt is created and the doubts were not properly
explained. If the doubt remains to be unexplained
by the prosecution, then the benefit of the same
will go to the accused persons.

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18. After analyzing the entire evidences
and other materials on record, we are of the view

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Patna High Court CR. APP (DB) No.529 of 1990 dt.26-07-2013

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that the prosecution has not been able to prove

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the charge against the appellants beyond the
shadow of all reasonable doubts. Hence the

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appellants deserve acquittal.

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19. In the result, the appeal is allowed

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and conviction and order of sentence of the

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appellants is set aside. The appellants are
acquitted of the charge. Since the appellants are
on bail, they are discharged from the liabilities

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of their respective bail bonds.

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(Shyam Kishore Sharma, J)

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(Rajendra Kumar Mishra, J)

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Patna High Court, Patna
Dated, the 26th July, 2013
Tahir/-(NAFR)

Wasimuddin and Ors. v. the State of Bihar

Case brief

What is this about?

What did the court decide?

Wasimuddin and Ors. v. the State of Bihar

Case brief

What is this about?

What did the court decide?

What the court decided

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