Hasibuddin @ Hasib vs The State of Bihar.

The present Appeal under Section 374(2) read with Section 389 (1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C.") was preferred against the judgment of conviction and order of sentence of the appellant in Sessions Trial No. 1015 of 2011 { arising out of Terhagachh P.S. Case No. 19 of 2008}. The appellant was convicted on 02.06.2015 for commission of offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the "I.P.C.") and by order of sentence dated: 08.06.2015 he was directed to undergo rigorous imprisonment for life under Section 302 of the I.P.C. and imposed a fine of Rs. 10,000/- and in default of payment of fine he was directed to further undergo imprisonment for six months. The judgment of conviction and sentence was passed by Shri Ramesh Kumar Rateria, learned Sessions Judge, Kishanganj (hereinafter referred to as the "trial judge") in Sessions Trial No. 1015 of 2011.

Short fact of the prosecution case is that on 01.04.2008 at 12.00 Hours (noon) Sub Inspector of Police Mr. Zulfikar ( P.W. 7) of Police Station: Teragachh recorded fardbyan of Habiba Begam (P.W. 5). The fardbyan was recorded near the house of the appellant in village Rajghat Baluatoli Miyapur. In the fardbyan the informant stated that on earlier date i.e. on 31.03.2008 she got information over telephone which was installed near her house in the village: Dohar, Police Station: Bahadurganj that her sister - Soyeba ( deceased) has consumed poison. After getting such information she visited village: Balutoli i.e. village of her sister and reached her house and saw that on Veranda dead body of sister Soyeba was lying. She further stated that from the family members and villagers she got information that after three months her brother -in- law Hasibuddin had returned from Punjab on 30.03.2008 at 12.00 Hour and on the same date at about 3-4 P.M. due to some altercation he brutally assaulted the sister of the informant (deceased). Thereafter, the injured was carried by her brother-in-law Hasibuddin (appellant) and villagers for her treatment and as they crossed the river her sister collapsed and died. Thereafter, they brought the dead body to the house. She claimed that her sister died due to brutal assault by the appellant. Her fardbyan was read over to her which was recorded in presence of Shahansah Begum (P.W. 6) and both informant and P.W. 6 put their L.T.I. on the fardbyan.

After recording fardbyan, on 01.04.2008 at 16.00 Hours (4.00 P.M.) a formal FIR vide Teragachh P.S. Case No. 19 of 2008 was registered for the offence under Section 302/201 of the I.P.C. against the sole appellant. After investigation, on 11.09.2008 charge- sheet was submitted against the appellant. Thereafter, on 20.10.2008 learned Chief Judicial Magistrate took cognizance of offence. After completion of formalities under Section 207 of the Cr.P.C. on 06.09.2011 the case was committed to the court of Sessions and to prove its case prosecution examined altogether seven witnesses. However, out of seven witnesses, P.W. 1, P.W. 2 and P.W. 3 since did not support the prosecution case, they were declared as hostile witness. P.W. 6 (Shahansah Begum) (wife of brother of informant) was examined as hearsay witness. P.W. 4 (Dr. Satya Swaroop) had conducted post- mortem examination on the dead body of the deceased and informant ( Habiba Begum) was examined as P.W. 5 whereas Md. Zulfikar, Sub Inspector of Police who conducted major portion of the investigation was examined as P.W. 7. After conclusion of the prosecution evidence statement of accused under Section 313 of the Cr.P.C. was recorded on 19.12.2014 however in the case no witness from defence side was produced.

Shri Amal Kumar Sinha, learned counsel for the appellant by way of referring to the evidences, has argued that the prosecution has not proved its case beyond all reasonable doubt, and as such, it was a case for passing order of acquittal, however the learned trial judge has incorrectly passed judgment of conviction and sentence. He submits that in the case there was only evidence of P.W. 5 (informant) who too is not an eye witness to the occurrence. In the case none has come forward claiming to be eye witness. He submits that the evidence of the informant also appears to be not reliable since the informant has developed its case and contrary to the facts disclosed in the fardbeyan she deposed, and as such, there is reason to raise suspicion on her evidence. So far P.W. 6 ( Shahansah Begum) is concerned he submits that this witness is close relative (wife of brother of informant) and she was examined as only hearsay witness. However even in her evidence she did not disclose as to from whom she got information that the appellant had brutally assaulted the deceased. He submits that in absence of disclosure of name of those witnesses who had seen the occurrence and informed P.W. 6 no reliance on such evidence can be placed. Accordingly, it has been argued that the case being without any eye witness and also in absence of any corroborative evidence, the appellant deserves to be extended the benefit of doubt.

Dr. Mayanand Jha, learned Additional Public Prosecutor opposing the Appeal submits that the evidence of the informant is sufficient for holding the judgment of conviction and sentence of the appellant as correct. He submits that though some contradiction has come in her evidence from her fardbeyan, but such contradiction appears to be minor and only on this very ground her evidence may not be ignored.

Besides hearing learned counsel for the parties, we have also perused the entire evidence i.e. oral and documentary evidences brought on record and after going through the same we are prima facie satisfied that prosecution has not proved its case beyond all reasonable doubt. In this case before proceeding it would be necessary to examine the evidence of P.W. 5, who is the informant. P.W. 5 in her evidence has stated that occurrence had taken place at 10.00 P.M. in the night about six years back on which date her sister Soyeba Khatoon was done to death by her husband (appellant ). She stated that she got information over telephone. She specified that her sister (deceased Soyeba Khatoon) herself had telephonically informed her and called her, however, she consoled her. She said that it was an odd hour. On the next day when she reached the house of her sister she saw her dead body and thereafter, she enquired from other persons who were present there who disclosed that her sister was brutally beaten by her husband and she was not provided any medical aid. She stated that the husband of the deceased had given blow from hammer and when she fell down he smashed her chest. The informant (P.W. 5 ) further stated that the husband of her sister had demanded money after selling the land. Earlier payment was made and again on second occasion the husband was demanding money which was refused by her sister and this was the reason that the appellant had killed the sister of P.W. 5. However, after going through the fardbeyan it is evident that this witness has developed the story of the occurrence. In the fardbeyan she stated that she got information over telephone in the village, however while being examined she stated as if deceased herself had telephonically informed her. In the fardbeyan nothing was indicated as to whether any demand of money was made or not but during evidence she developed this story. Even in her cross- -examination when her attention was drawn to the fardbeyan, she did not give proper reply. So far P.W. 1 (Dilbar Alam) who was the step son of the deceased is concerned, he did not support the prosecution case and he was declared hostile. Similarly, other two witnesses who were cited as independent witnesses namely: Moheruddin and Hari Prasad Yadav were examined as P.W. 2 and P.W. 3 too did not support the prosecution case and they were declared hostile. P.W. 4 (Dr. Satya Swaroop) at the relevant time was posted as Medical Officer, Sadar Sub Divisional Hospital, Kishanganj. On 1st April, 2008 he conducted post- mortem examination on the dead body of the deceased and noticed and observed the following facts:- "Post mortem was conducted on the same day at 9 A.M. On post- mortem examination following ante mortem injuries found on the body of the deceased.

(i) Abrasion of size 1" x 1/2" of right elbow laterly.

(ii) Abrasion of size 1 1/2" x 1/2" at right leg anteriorly

On dissection of neck in between layers of large muscles blood clot present. On further dissection of neck larynx and trachea opened. Mucuous membrane highly congested. Some haemorrhaic points present in sub mucousa.

On dissection of chest both lungs found congested. Blood clot present on both sides. On sectioning the lungs tissue blood mixed froath comes out.

On dissection of abdomen: There is no internal injury. Stomach contained 100 ml dark coloured liquid substance. Mucouse is pale. Said injuries are caused by hard and blunt substance. Time passed since death - 36 hours. Cause of death - in my opinion cause of death is asphyxia and shock as a result of throttling."

He also proved the post -mortem examination report, which was marked as Exhibit- 1. P.W. 6 (Shahansah Begum ) is the wife of the brother of the informant. In her evidence she has stated that after getting telephonic information she went to the village of the deceased where she noticed dead body of the deceased in the court yard. She stated that on enquiry she gathered information from villagers that the appellant had killed the deceased and reason for the occurrence was that the appellant was demanding money from the deceased after selling her parental land. This witness has not disclosed the name from whom she got information regarding the occurrence, though she was examined as hearsay witness. In absence of the name of the person from whom she had got information as well as in absence of the evidence of the person who had given information to her, the evidence of P.W. 6 may not be relied upon. The investigating officer (P.W. 7) has simply stated that he recorded the fardbeyan of the informant and he proved the fardbeyan, which was marked as Exhibit- 1. He further proved endorsement on the fardbeyan, which was marked as Exhibit- 1/1. Inquest report was marked as Exhibit -2 and formal FIR he proved as Exhibit- 3. Besides this in his evidence he has not at all indicated as to whether he had noticed any unusual thing at the place of occurrence. Only he had described regarding the place of occurrence.

On going through the entire evidence one thing is evident that none had seen the occurrence. Moreover, evidence of P.W. 5 too appears to be not believable since there are serious contradictions in her deposition as well as the facts disclosed in the fardbeyan. Similarly, evidence of P.W. 6 has got no relevance considering the fact that she was examined only as hearsay witness without any corroborative evidence. In such circumstances, only on the evidence of P.W. 5 it would not be safe to approve the conviction of the appellant in the present case.

In view of the facts and circumstances, we are of the opinion that the prosecution has not proved its case beyond all reasonable doubt, accordingly, the judgment impugned is required to be interfered with. The judgment of conviction and order of sentence dated: 02.06.2015 & 08.06.2015 respectively passed by Shri Ramesh Kumar Rateria, learned Sessions Judge, Kishanganj in Sessions Trial No. 1015 of 2011 (arising out of Terhagachh P.S. Case No. 19 of 2008) is hereby set aside and the Appeal is allowed. The appellant is in custody and since the judgment of his conviction and order of sentence has been set aside, it is hereby directed to release him forthwith, if not required in any other case. The Appeal is allowed.