Patna High Court
Md. Jamshed Alam vs The State Of Bihar on 6 March, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No. 541 of 2017
Arising Out of PS. Case No.-38 Year-2012 Thana- BARURAJ District- Muzaffarpur
======================================================
Md. Jamshed Alam Son of Md. Samiullah, resident of Village and P.S.
Baruraj, District- Muzaffarpur.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance:
For the Appellant/s : Mr. Hari Kishore Thakur, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE NANI TAGIA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date: 06.03.2025
The aforesaid appeal has been preferred under Section
374 (2) of the Code of Criminal Procedure, 1973 (hereinafter
referred to as the "Cr.P.C.") against the judgment of conviction
and the order of sentence dated 09.03.2017 and 10.03.2017
respectively, passed in Sessions Trial No.160 of 2013 (arising
out of Baruraj P.S. Case No.38 of 2012) by the learned Court of
7th Additional Sessions Judge, Muzaffarpur (hereinafter referred
to as "learned Trial Judge"). By the said judgment dated
09.03.2017
, the learned Trial Judge has convicted the appellant
for commission of offence under Section 302 of the Indian
Penal Code (hereinafter referred to as the “IPC“) and vide order
dated 10.03.2017 he has been sentenced to undergo rigorous
imprisonment for life with fine of Rs.10,000/- and in default
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thereof, the appellant has been directed to undergo further
rigorous imprisonment for one year.
2. The short facts of the case are that on 08.06.2012 at about
12.00 hours in the afternoon, the fardbeyan of the informant,
namely, Md. Ramjan was recorded by the Sub-Inspector of
Police. In the fardbeyan, the informant has stated that on
08.06.2012 at about 11.00 a.m. in the morning, he along with his
deceased-wife Julekha Khatoon was sitting at the door of his
house when Md. Jamshed Alam (Appellant) had arrived there
and told his wife to come along with him since he had to talk
with her, whereafter his deceased-wife Julekha Khatoon had
gone with Md. Jamshed (Appellant) to his house. After the wife
of the informant had gone for some distance, he heard his wife
raising an alarm, whereafter he had immediately gone there and
saw that his wife Julekha Khatoon was being assaulted by Md.
Jamshed (Appellant), Md. Shamshad, Md. Khurshid, Kaishar
Khatoon and Habiban Khatoon by fists, slaps and legs. The
informant has further stated that he had then intervened and
stopped the quarrel in between them and taken his wife Julekha
Khatoon to the police station, however when they had reached
at Sahdeo Chowk at about 11:30 a.m., Md. Jamshed Alam
(Appellant) came running and then he had assaulted Julekha
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Khatoon with bamboo stick on her head and neck, whereupon
Julekha Khatoon became injured and fell down on the ground
and then the informant had taken his wife Julekha Khatoon in an
injured condition on a tempo for treatment to Primary Health
Centre, Motipur, however, on the way she died. The informant
has next stated that he had then taken his deceased-wife Julekha
Khatoon to the police station on the same tempo where his
statement was recorded. The informant has stated that the
motive for the occurrence is that the sister of Md. Jamshed Alam
(Appellant), namely Khushboo had run away with the son of the
informant and had solemnized marriage in the Court. The
informant has also stated that the aforesaid accused persons had
assaulted his wife Julekha Khatoon by fists and slaps and then
Jamshed Alam (Appellant) had assaulted on the head and neck
of his wife with an intention to kill her.
3. On the basis of the said fardbeyan of the informant, a
formal FIR bearing Baruraj P.S. Case No.38 of 2012 was
registered under Section 302/34 of the IPC by the Officer-in-
charge, Baruraj Police Station against Md. Jamshed Alam
(Appellant), Md. Shamshad Alam, Md. Khurshid, Kaishar
Khatoon and Habiban Khatoon. After investigation and finding
the case to be true qua the appellant, the police had submitted
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charge sheet on 15.11.2012 under Sections 341, 323, 504 and
302/34 of the IPC. Thereafter, the learned Trial Court had taken
cognizance against the appellant on 23.11.2012 under Sections
341, 323, 504 and 302/34 of the IPC. The case was then
committed to the Court of Sessions and was numbered as
Sessions Trial No.160 of 2013. The learned Trial Court had
framed charges against the appellant on 04.04.2013 under
Sections 341/34, 504, 323/34 and 302/34 of the IPC against the
appellant to which he pleaded not guilty and claimed to be tried.
4. During the course of trial, 14 witnesses have been
examined on behalf of the prosecution. PW-1 Md. Ramjan is the
informant and husband of the deceased. PW-4 Md. Mumtaj is
the nephew of the deceased. PW-6 Shamina Khatoon is the
sister-in-law of the informant. PW-8 Md. Qurban Ali is the
brother-in-law of the deceased. As far as PW-2 Qayum, PW-3
Md. Shamshad Alam, PW-12 Badruddin and PW-13 Sanjay
Ram are concerned, they are hearsay witnesses. PW-5 Umesh
Kumar is a formal witness, who has identified his signature on
the seizure list. PW-7 Md. Sami Akhtar is a witness to the
inquest report. PW-9 Md. Kasim and PW-10 Saraswati Devi
have deposed on behalf of the prosecution. PW-11 Chandrika
Ram is the Investigating Officer of the present case, while PW-
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14 Dr. Pramod Kumar is the doctor who had conducted
postmortem on the dead body of the deceased- Julekha Khatoon.
5. The learned counsel for the appellant, Mr. Hari Kishore
Thakur has submitted that most of the witnesses are hearsay
witnesses and those witnesses who claim to be eye-witnesses
are inconsistent and major contradictions can be found in their
deposition. It is further submitted that only one blow was given
on the head of the deceased and as far as the allegation of
inflicting bamboo stick blow on the neck of the deceased is
concerned, the same does not stand corroborated from the
medical evidence, i.e. the postmortem report. It is thus
submitted that the incident was not premeditated and it had
taken place on account of continued provocation emanating out
of two reasons, firstly the water from the hand pump situated in
the premises of the informant used to flow into the field of the
appellant and secondly, the son of the informant had fled away
with the sister of the appellant and solemnized marriage. It is
further submitted that though in the postmortem report, three
ribs have been found to be fractured, however, none of the
witnesses have stated that any assault was made on the chest/
ribs of the deceased. Finally, it is submitted that though the
present case is a case for acquittal, however, even otherwise the
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appellant was not having any intention to kill the deceased in
view of the fact that he had not repeatedly assaulted the
deceased on her head, thus alternatively, it is submitted that the
present case would fall within the ambit of Section 304 Part-II
of the IPC.
6. Per contra, the learned APP for the State, Mr. Dilip
Kumar Sinha has submitted that the witnesses are consistent in
their testimony. It is next submitted that as far as PW-1, PW-4,
PW-6 and PW-8 are concerned, they are eye-witnesses to the
aforesaid occurrence and have deposed consistently to the effect
that Jamshed (Appellant) had assaulted Julekha Khatoon
(deceased) with bamboo stick on her head and neck resulting in
her death. It is also submitted that the occurrence in question
fully stands corroborated from the medical evidence. Lastly, the
learned APP for the State has submitted that the learned Trial
Judge has passed the impugned judgment of conviction and the
order of sentence by considering the materials on record and the
same is a reasoned order, thus, the present appeal is fit to be
dismissed.
7. Besides hearing the learned counsel for the parties, we
have minutely perused both the evidence, i.e. oral and
documentary. Before proceeding further, it is necessary to
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cursorily discuss the evidence.
8. PW-1 Md. Ramjan is the informant of the present case
and the husband of the deceased-Julekha Khatoon. He has stated
in his deposition that deceased-Julekha Khatoon is his wife and
the incident dates back to one year at about 11.00 a.m. in the
morning, when he was sitting at the door of his house along
with his wife and then Jamshed Alam (Appellant) had arrived
there and told his wife that his mother was calling her,
whereafter his wife had gone with Jamshed along with a child,
namely Rakibul Islam, however after some time, the said child
came back crying and told PW-1 that those people were
assaulting mother, whereupon PW-1 went to the place of
occurrence and saw that the head of his wife had been broken.
On being asked, wife of PW-1 disclosed that Habiban Khatoon,
Kesar Khatoon, Jamshed Alam, Son of Samimulla, namely
Nanki had assaulted her. Thereafter, PW-1 had accompanied his
wife and while he was bringing her to his house and had reached
at Sahdeo Chowk near a tea stall, Jamshed Alam had arrived
there and assaulted his wife by bamboo stick on her head and
neck, whereafter she fell down. PW-1 has also stated that he had
then lifted his wife on his shoulder and taken her to his house,
whereafter he had gone to the police station along with his wife
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where Jamshed was sitting, however upon seeing him he ran
away and then he had laid his wife at the police station. PW-1
has next stated that when he had taken his wife to the police
station she was breathing, however seeing her condition, the
staff of the police station told him to take his wife to the hospital
immediately, whereafter he had taken his wife to the hospital,
however at the hospital the doctor declared his wife to have
been brought dead. PW-1 had then brought his wife to the police
station where he had again seen Jamshed Alam sitting there.
PW-1 has also stated that earlier talks used to take place in
between his son and sister of Jamshed and he used to catch hold
of the letters being exchanged between them, whereafter he had
turned his son out of his house and then his son had not returned
back for 2½-3 years. PW-1 has also stated that on account of the
said dispute, the present incident has taken place. PW-1 had
recognized the appellant standing in the dock.
9. In cross-examination, PW-1 has stated that at the time of
occurrence, his elder son was not present. PW-1 has stated that
he does not remember as to whether FIR was read over to him
and as to whether on the day of the incident, enquiry was made
by the police from him. In cross-examination, PW-1 has stated
that he had told the police that Jamshed Alam (Appellant) had
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arrived at his house and asked his wife to accompany him since
his mother was calling him, whereafter a nine-year-old child,
namely Rakibul Islam had accompanied his wife, however after
sometime he had returned crying and had told him that those
people were assaulting his mother, whereupon he had gone to
the place of occurrence, where he saw that his wife had been
assaulted and she was crying. PW-1 has also stated that at
Sahdeo Chowk, although there are 3-4 tea stalls and 10-12
shops, but he had disclosed the names of Parmanand Sah,
Vishwanath Sah and Bhuneshwar Sah, since he did not
remember the name of other shop owners. PW-1 has stated that
he had informed the police. PW-1 has next stated in his cross-
examination that the water used to flow from his tap towards the
field of Jamshed Alam which used to be opposed by Jamshed
Alam. PW-1 has also stated in his cross-examination that his
wife had walked from the house of accused persons to Sahdeo
Chowk on foot where he had made her sit at the shop of
Vishwanath Sah and then he saw that at a distance of about 10
stick length (one stick length being equal to about 10 feet), on
the rear Jamshed had reached near his wife, however his wife
did not try to run away and kept sitting there. PW-1 has stated
that Jamshed had hit his wife twice at Sahdeo Chowk,
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whereafter his wife became unconscious and then he had lifted
his wife on his shoulder and taken her to the police station. He
has also stated in his cross-examination that his wife had told
him that Habiban Khatoon, Kesar Khatoon, Jamshed Alam and
son of Samimullah, namely, Nanki had assaulted her.
10. PW-2 Qayum is a cycle mechanic and he has stated in his
deposition that the occurrence dates back to about one year at
11:30 hours in the morning while he was working at his shop
situated at Boring Chowk when he was informed by a person
passing by on a motorcycle that Jamshed (Appellant), Khurshid,
Samshad, Kesar and Habiban are assaulting wife of Ramjan
(informant) namely Julekha Khatoon. He has also stated that
after the said occurrence when Ramjan and his wife were going
to the police station, Jamshed had assaulted Julekha Khatoon by
bamboo stick at Sahdeo Chowk, leading to Julekha falling down
and becoming unconscious. PW-2 has further stated that he
heard that while Ramjan was taking his wife to the hospital, she
died on the way. PW-2 has also stated that after the incident, he
had gone to the police station where he had seen the dead body
being loaded on a tempo. He has next stated that the police had
prepared a seizure list of bamboo stick over which he had made
his signature which he has identified and the same has been
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marked as Exhibit-2. PW-2 had recognized the appellant
standing in the dock. In his cross-examination, PW-2 has stated
that his house is situated at a distance of half kilometer from
Sahdeo Chowk. PW-2 has also stated in his cross-examination
that he had got information about the incident from the person
travelling on the motorcycle. PW-2 has stated that the bamboo
stick was deposited in the police station by Ramjan.
11. PW-3 Md. Shamshad Alam has stated in his deposition
that the incident dates back to one year while he was working in
his village and then he heard that Jamshed (Appellant) had
assaulted Julekha Khatoon and had fled away. He has stated that
Jamshed had assaulted Julekha Khatoon at Sahdeo Chowk but
he does not know about any other person having assaulted
Julekha Khatoon. He has also stated that he heard that Ramjan
was taking his wife in an unconscious state to the hospital,
however she died on the way. PW-3 has next stated that after
hearing about the incident, he had gone to the house of Julekha
Khatoon but he did not find anyone there, whereafter he had
gone to the police station where the police was preparing
documents and there he had seen one bamboo stick, which was
laced with blood and documents were prepared with regard to
the same which he has identified and the same has been marked
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as Exhibit-2/1. PW-3 had recognized the appellant standing in
the dock. PW-3 has stated in his cross-examination that he had
gone for his work at about 09.00 a.m. in the morning, however
he came to know about the incident at 02:00-02:30 p.m. and the
paper regarding bamboo stick was prepared at about 03:00 p.m.
12. PW-4 Md. Mumtaj is the nephew of deceased-Julekha
Khatoon and he has stated in his deposition that the occurrence
dates back to one year at about 11:00 hours in the morning when
he was going to Motipur and had stopped at Sahdeo Chowk to
eat betel (paan) and then he saw that his aunt Julekha Khatoon
was sitting at the shop of Vishwanath for drinking water and in
the meantime Jamshed (Appellant) had arrived there and had
assaulted her with bamboo stick on her neck and temporal
region leading to her becoming unconscious, whereafter his
uncle had lifted her on his shoulder and taken her to the police
station from where she was taken to the doctor for treatment on
a tempo but since she died on the way, she was brought back to
the police station. He has stated that he had not seen the
occurrence which had taken place at the house. He has also
recognized the appellant standing in the dock. PW-4 has next
stated in his cross-examination that when he looked towards the
shop of Vishwanath Sah, three people were sitting there and his
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aunt was sitting outside the shop beneath a hut. PW-4 has also
stated that Jamshed had arrived at the shop after five minutes of
his aunt sitting there. PW-4 has stated in his cross-examination
that Jamshed assaulted Julekha Khatoon by going inside the
shop. PW-4 has next stated that at the time when Jamshed had
assaulted Julekha Khatoon nobody was present there, however
upon alarm being raised some people had arrived there and tried
to catch Jamshed, however Jamshed fled towards the police
station after throwing the bamboo stick and thereafter, Jamshed
disappeared and went to the police station. In his cross-
examination, PW-4 has stated that in front of his house, field of
Jamshed is situated and he keeps goats and hens and sometimes
his goat goes into the field of Jamshed and starts grazing the
crops leading to Jamshed becoming angry and entering into a
quarrel with him. PW-4 has also stated in his cross-examination
that he had not disclosed before the police official that at the
time Julekha Khatoon was sitting at the shop of Vishwanath Sah
and drinking water Jamshed had hit on her head and neck by
bamboo stick, however he had disclosed before the police that
after his aunt had fallen down, his uncle had lifted her on his
shoulder and had taken her to the police station.
13. PW-5 Umesh Kumar has stated in his deposition that the
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occurrence dates back to about one year when he was going to
Sahdeo Chowk to buy medicine and there he found that many
people had gathered, whereafter he had stopped his cycle and
had seen that a police officer was preparing seizure list, on
which he had also made his signature, which he has identified
and the same has been marked as Exhibit-3. In cross-
examination, PW-5 has stated that no medicine shop is situated
at Sahdeo Chowk.
14. PW-6 Shamina Khatoon is sister-in-law of the informant
and she has stated in her deposition that the occurrence dates
back to one year at about 11:00 a.m. in the morning when she
along with Julekha Khatoon (deceased) had returned to their
house after plucking moong and then Jamshed Alam (Appellant)
had come to call Julekha Khatoon and had taken her away,
whereafter she heard hulla (alarm), and then she went running
to the place of occurrence where she found that Jamshed,
Khurshid, Samsher, Kesar, Habiban were assaulting Julekha
Khatoon as also the head of Julekha Khatoon had been broken,
whereafter Ramjan Ali (informant) had taken her to the police
station. PW-6 has further stated that when Ramjan had lifted
Julekha and was going to the house for bringing children then
Jamshed had arrived there and had assaulted Julekha Khatoon
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with bamboo stick on neck and over the ear leading to Julekha
Khatoon falling down, whereafter Jamshed ran away after
throwing the bamboo stick. PW-6 has also stated that Ramjan
had then taken Julekha Khatoon to the police station and they
had also accompanied them, however at the police station the
Officer-in-charge told them to take Julekha Khatoon to hospital.
She has next stated that Julekha Khatoon was then taken to the
hospital on a tempo, however she died on the way, thus she was
brought back to the police station. PW-6 had recognized the
appellant standing in the dock. PW-6 has stated in her cross-
examination that her statement was recorded by the police
officer and she had not stated earlier that at the time of
occurrence she had gone from the place of occurrence to her
house and when she had returned back, she had seen that
Julekha Khatoon had died. PW-6 has also stated that she had not
disclosed before the police officials that Jamshed Alam had
assaulted Julekha Khatoon at Sahdeo Chowk and killed her.
PW-6 has next stated in her cross-examination that she had not
disclosed before the police officer that Jamshed Alam had called
Julekha Khatoon and taken her to his house where he along with
Khurshid and other family members had assaulted Julekha
Khatoon with fists and slaps and then Julekha’s husband had
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gone to the house of Jamshed and intervened, whereafter he had
taken the deceased to the police station. PW-6 has also stated
that when Julekha Khatoon had gone to the house of Jamshed,
she had also gone from behind and had seen that blood was
oozing out from middle of the head of Julekha Khatoon. PW-6
has also stated in her cross-examination that her statement was
recorded at the police station.
15. PW-7 Md. Sami Akhtar has stated in his deposition that
the occurrence dates back to one year at about 02:00 hours in
the day time when he saw that some people were going towards
the police station and then he came to know that Jamshed and
his family members have assaulted and killed the wife of
Ramjan. He has also stated that he had then gone to the police
station where he saw the dead body of the wife of Ramjan and
also saw blood oozing out of the body of the deceased. PW-7
has next stated that at the police station, the police officials were
preparing documents and they had also prepared the inquest
report over which he had also put his signature which he has
identified and the same has been marked as Exhibit-4. P.W.7 has
also identified the signature of Md. Kasim which was made by
him before P.W.7 over the inquest report, which has been
marked as Exhibit-4/1. He had also recognized the appellant
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standing in the dock. PW-7 has further stated in his cross-
examination that he had put his signature on the inquest report
at the police station at 02:30-03:00 pm.
16. PW-8 Md. Qurban Ali is the brother-in-law of the
deceased-Julekha Khatoon as also the brother of the informant-
Ramjan and he has stated in his deposition that the occurrence
dates back to one year at about 11:00 a.m. in the morning. His
house is situated adjacent to the house of the deceased. PW-8
has next stated that at the time of occurrence, Jamshed
(Appellant) had come to the house of Julekha Khatoon to call
her and had told her that his mother was calling her, whereafter
Julekha Khatoon had gone with Jamshed to his house and then
Jamshed along with his family members had assaulted Julekha
Khatoon with fists and slaps. Thereafter, Ramjan (informant)
and PW-8 had gone to the house of Jamshed and had seen that
Jamshed, Khurshid, Samshad, Habiban and Kesar were
assaulting Julekha Khatoon by fists and slaps, whereafter they
had taken Julekha Khatoon to the police station, however on the
way Jamshed had hit Julekha Khatoon by a brick, leading to
blood oozing out, which had fallen on her clothes but did not
fall on the ground. PW-8 has also stated that thereafter, Julekha
Khatoon had sat at Sahdeo Chowk and had told her husband to
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bring the children otherwise they would also be assaulted,
however as soon as Ramjan had stood for bringing the children,
Jamshed had hit Julekha with bamboo stick on her neck and
temporal region leading to Julekha falling down on the ground
and then Jamshed had fled away, whereafter husband of Julekha
Khatoon had lifted her on his shoulder and taken her to the
police station, however there the police official had told them to
take her to the doctor and when they were taking her to the
doctor on a tempo, she died on the way. PW-8 had recognized
the appellant standing in the dock. In his cross-examination,
PW-8 has stated that his sister-in-law did not fall at the house of
Jamshed after being assaulted, however blood was oozing out
from her head and she had gone walking to Sahdeo Chowk. PW-
8 has also stated in his cross-examination that at Sahdeo Chowk,
Jamshed had assaulted his sister-in-law by bamboo stick on her
neck and temporal region. PW-8 has further stated in his cross-
examination that he had disclosed before the police officer that
at the time of occurrence he was at his house when Jamshed had
come to call Julekha and had told her that his mother was
calling her, whereafter his sister-in-law had gone to the house of
Jamshed where Jamshed and his family members had assaulted
his sister-in-law with fists and slaps, whereupon he and his
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brother had gone to the house of Jamshed and had taken Julekha
towards the police station but on the way Jamshed had hit
Julekha by brick on her head and temporal region, leading to
blood having fallen on the ground and then they had taken
Julekha to the police station where the police officials had told
them to take her to a doctor, nonetheless while they were taking
Julekha to the doctor, she died on the way.
17. PW-9 Md. Kasim has stated in his deposition that the
occurrence dates back to about one year at 02:00 hours in the
afternoon when he was at his home and then he heard that
Jamshed (Appellant) had assaulted wife of Roja (Ramjan-
informant) and thereafter she had died. Upon knowing about the
incident, PW-9 is stated to have gone to the police station where
the police official was making a document on which he had put
his signature. P.W.9 has identified the carbon copy of the said
document which has been marked as Exhibit-4/1. PW-9 had
recognized Jamshed. In cross-examination, PW-9 has stated that
he runs a tailoring shop and the police station is at a distance of
half kilometer where he had reached at about 02:00 hours in the
afternoon. He has also stated that he had not read the paper on
which he had signed but the police official had read over the
same to him.
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18. PW-10 Saraswati Devi has stated in her deposition that
hulla (alarm) was raised at Sahdeo Chowk at her tea stall when
she was inside and then she came outside, whereafter she saw
that wife of Roja uncle was lying there and blood was oozing
out from her head. Thereafter, the injured was taken to the
police station, however she had died when she was taken to the
Doctor. PW-10 has further stated that the police official had
arrived there and collected the mud, soaked with blood,
whereafter document was prepared with regard to the same on
which she had put her thumb impression. PW-10 has further
stated that she had not seen as to who had assaulted Julekha
Khatoon (deceased). In such view of the matter, PW-10 was
declared hostile, however, she was cross-examined by the
learned A.P.P. and in her cross-examination, she has stated that it
is not correct that she has stated that Jamshed Alam was chasing
Julekha Khatoon and when he had reached near Julekha
Khatoon, he had assaulted her by bamboo stick, whereafter she
fell and became unconscious.
19. PW-11 Chandrika Ram is the Investigating Officer of the
present case and he has stated in his deposition that on
08.06.2012 while he was posted as Officer-in-charge, Baruraj
Police Station, he had left the police station at 10 a.m. for taking
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part in a crime meeting. At about 11:30 a.m. information was
received in the police station that an incident of murder has
taken place within the jurisdiction of his police station.
Thereafter, information was given to the senior police officials
as also PW-11 had obtained information about the place of
occurrence, whereafter he had recorded the fardbeyan and
registered Baruraj P.S. case No.38 of 2012, dated 08.06.2012
under Section 302/34 of the IPC and had assumed the
investigation of the case. PW-11 has identified the fardbeyan
which is in the writing of Sub-Inspector Lalan Prasad Singh and
the same has been marked as Exhibit-5 as also he has identified
the signature made over the same which has been marked as
Exhibit-5/1. PW-11 has further stated that after assuming the
investigation of the present case seizure list was prepared by
Lalan Prasad Singh, Sub-Inspector in his writing, which has
been identified by him and has been marked as Exhibit-6. PW-
11 has next stated that whatever was seized has been produced
before the Court in a sealed cover, which has been marked as
Material Exhibit-I. PW-11 has further stated that inquest report
was also prepared by Lalan Prasad Singh in his writing, which
he has identified and the same has been marked as Exhibit-7.
PW-11 has stated that he along with the Deputy Superintendent
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of Police and other police officials had gone to the place of
occurrence where seizure list of mud, soaked with blood, was
prepared which he has identified and has been marked as
Exhibit-8. He has also stated that the seizure list pertaining to
blood-soaked soil has been produced in the Court, which has
been marked as Material Exhibit-II. PW-11 had visited first,
second and third place of occurrence and has described the place
of occurrence and the houses/shops situated around the same, in
his deposition. PW-11 had recorded the restatement of the
informant as also the statement of Samina Khatoon, Qurban Ali,
Sanjay Rai, Abdul Kayum, Md. Shamshad, Sarswati Devi and
Umesh Kumar as also that of the witnesses to the inquest report,
namely, Sami Akhtar and Md. Kasim. PW-11 has further stated
that he had received the postmortem report, Md. Jamshed
(Appellant) had surrendered in the Court on 23.08.2012,
whereafter he had filed charge sheet under Sections 341, 323,
20. In cross-examination, PW-11 has stated that fardbeyan of
the informant was recorded, whereafter it was read over to the
informant and then he had put his thumb impression upon the
same, finding the same to be correct. In paragraph No.19 of his
cross-examination, PW-11 has stated that he had collected blood
Patna High Court CR. APP (DB) No.541 of 2017 dt.06.03.2025
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and sent it for examination, however the report has not been
received till date. PW-11 has also stated that witness Abdul
Quayum had disclosed the name of Jamshed Alam. PW-11 has
next stated in his cross-examination that witness Mumtaz had
not stated before him that after his aunt had fallen down, his
uncle had taken his aunt by putting her on his shoulder. PW-11
has stated in his cross-examination that witness Md. Qayum had
not stated before him that Julekha Khatoon had gone running to
Sahdeo Chowk and then she was assaulted there. PW-11 has
also stated that Md. Mumtaz had not stated before him that after
his aunt had fallen down, his uncle had put her on his shoulder
and taken her away. PW-11 has also stated in his cross-
examination that witness Shamina Khatoon had disclosed before
him that she was doing some work at the time of occurrence and
after the children had called her out, she had gone to the place of
occurrence where people told her that the deceased had been
killed by Jamshed at Sahdeo Chowk. PW-11 has also stated that
Samina Khatoon had not stated about plucking of moong. PW-
11 has stated in his cross-examination that witness Qurban had
not stated before him that Jamshed had called Julekha Khatoon
and taken her to his house where she was assaulted. PW-11 has
also stated in his cross-examination that witness Md. Qurban
Patna High Court CR. APP (DB) No.541 of 2017 dt.06.03.2025
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had not stated before him that he had rushed to the place of
occurrence and had seen Jamshed, Khurshid, Samshad, Habiban
and Kesar assaulting Julekha. PW-11 has further stated that
witness Qurban had not stated before him that when they had
gone to the police station, Samshad had picked up a brick and
hit Julekha Khatoon resulting in her head being smashed leading
to blood oozing out of her head. PW-11 has further stated that
Qurban had stated before him that he was plucking moong at his
field when his brother’s son, aged about 4-5 years, had told him
that his mother had died, whereafter he had gone to the shop of
Vishwanath Sah and had seen wife of Ramjan, namely Julekha
Khatoon lying on the ground. PW-11 has also stated that witness
Sami Akhtar had not told him that after coming from there, he
was informed by people that Jamshed and his family members
had killed the wife of Ramjan.
21. PW-12 Badruddin has stated in his deposition that the
occurrence dates back to one year. PW-12 has also stated that
quarrel had taken place in between Jamshed and Julekha
Khatoon at Sahdeo Chowk and he had heard hulla (alarm),
however he does not know as to how Julekha Khatoon died.
PW-12 has further stated that while he was going to plough the
field of Kishori Rai, he did not see anyone fighting amongst
Patna High Court CR. APP (DB) No.541 of 2017 dt.06.03.2025
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themselves. In cross-examination, PW-12 has stated that prior to
recording of his present statement, his statement was not recorded
by anyone.
22. PW-13 Sanjay Ram has stated in his deposition that he
was not present in his village one year back, however he heard
that some quarrel had taken place in between Jamshed and
Julekha Khatoon and Julekha had died by falling and sustaining
injuries. He has further stated that when he reached at the tea
stall of Vishwanath Sah, he heard about the incident. In his
cross-examination, PW- 13 has stated that he can’t say as to how
Julekha died.
23. PW-14 Dr. Pramod Kumar is the doctor, who had
conducted the postmortem on the dead body of Julekha Khatoon
at 11.00 a.m. on 09.06.2012, while posted as Head of
Department, Pathology Department at SKMCH, Muzaffarpur
and upon conducting postmortem, he had found the following
ante-mortem injuries externally:-
“Lacerated wound on occipital bone of skull-size
2″ x 1″ x bone deep.”
The findings of PW-14, on dissection, are as follows :-
“Left lung was lacerated and chest cavity was full
of blood and blood clot. Left 4th, 5th and 6th ribs
were fractured. Brain tissues were lacerated on
Patna High Court CR. APP (DB) No.541 of 2017 dt.06.03.2025
26/34occipital area of skull. Occipital bone of skull was
fractured. Blood and blood clots were present in
and around above-mentioned injuries. All major
vessels were empty. All Chambers of heart were
empty. All injuries were ante-mortem in nature.”
PW-14 has stated the cause of death to be as follows:-
“Hemorrhage and shock due to above-mentioned
injuries, caused by hard and blunt substance.”
PW-14 has estimated the time elapsed since death to be
within 24 to 48 hours of postmortem examination. PW-14 has
further stated that the postmortem report bears his signature and
has been written in his writing, which he has identified and the
same has been marked as Exhibit-8. In cross-examination, PW-
14 has stated that there was only one injury upon the dead body
externally which he saw. There was no injury upon the neck and
temporal region (kanpatti, area above the ear). He has also
stated that a person with three fractured ribs can move with
difficulty.
24. After closing the prosecution evidence, the learned Trial
Court recorded the statement of the appellant on 19.05.2014
under Section 313 of the Cr.P.C. for enabling him to personally
explain the circumstances appearing in the evidence against
him, however he claimed himself to be innocent.
Patna High Court CR. APP (DB) No.541 of 2017 dt.06.03.2025
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25. The trial Court, upon appreciation, analysis and scrutiny
of the evidence adduced at the trial, has found the aforesaid
appellant guilty of the offence and has sentenced him to
imprisonment and fine, as noted above, by its impugned
judgment and order.
26. We have perused the impugned judgment of the learned
Trial Court, the entire materials on record and have given
thoughtful consideration to the rival submissions made by the
learned counsel for the appellant as well as the learned APP for
the State. A bare perusal of the evidence of the prosecution
reveals that on 08.06.2012 at about 11:00 a.m. in the morning,
the appellant had come to the house of the informant, namely,
Md. Ramjan, where he was sitting along with his wife and had
asked Julekha Khatoon to come along with him to his house,
whereafter wife of the informant had gone along with the
appellant to his house and after sometime the informant heard
his wife raising an alarm, whereupon he had immediately gone
to the house of the appellant, where he saw that his wife was
being assaulted by the appellant, Md. Shamshad, Md. Khurshid,
Kaishar Khatoon and Habiban Khatoon by fists, slaps and legs.
The informant is then stated to have intervened and stopped the
quarrel, whereafter he had taken his wife Julekha Khatoon to the
Patna High Court CR. APP (DB) No.541 of 2017 dt.06.03.2025
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police station, but on the way when they had reached at Sahdeo
Chowk at about 11:30 a.m., the appellant had arrived there
running and had then assaulted Julekha Khatoon with bamboo
stick on her head and neck leading to her sustaining injuries and
falling down on the ground and subsequently she died. PW-1
Md. Ramjan, i.e. the informant of the present case, PW-4 Md.
Mumtaj, who is the nephew of the deceased, PW-6 Shamina
Khatoon, who is the sister-in-law of the informant, and PW-8
Md. Qurban Ali, who is the brother-in-law of the deceased are
stated to be the eye witness to the alleged occurrence. As far as
PW-2 Qayum, PW-3 Md. Shamshad Alam, PW-5 Umesh
Kumar, PW-7 Md. Sami Akhtar, PW-9 Md. Kasim, PW-10
Saraswati Devi, PW-12 Badruddin and PW-13 Sanjay Ram are
concerned, they have admitted to have not witnessed the alleged
occurrence and while some of them have claimed to have heard
from others that Julekha Khatoon was assaulted by the appellant
by bamboo stick leading to her death, other witnesses have
stated that they do not know as to how Julekha Khatoon had
died, hence the testimony of the said witnesses would not have
any evidentiary value, thus the same has been excluded for the
purposes of proving the guilt of the appellant.
27. As far as PW-6 Shamina Khatoon is concerned, her
Patna High Court CR. APP (DB) No.541 of 2017 dt.06.03.2025
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statement made before the police under Section 161 Cr.P.C. was
put to the Investigating Officer, i.e. PW-11 Chandrika Ram to
elicit his response and the evidence of PW-11 would show that
PW-6 had stated before him that at the time of occurrence, she
was doing some work and after children had called out, she had
gone to the place of occurrence where people had told her that
the deceased has been killed by Md. Jamshed (Appellant) at
Sahdeo Chowk, thus we find that defense has been able to elicit
grave contradiction in the statement of PW-6 Shamina Khatoon,
inasmuch as in her examination-in-chief, she is stated to be an
eye witness of the alleged occurrence, however in her statement
made under Section 161 Cr.P.C. before the police, she is stated
to have reached the place of occurrence, after the occurrence
had taken place. Similarly, PW-8 Md. Qurban Ali’s evidence
also suffers from grave contradiction, inasmuch as when the
statement made by him under Section 161 Cr.P.C. was put to
PW-11 Chandrika Ram (Investigating Officer) to elicit his
response, a bare perusal of his evidence would show that he has
stated that PW-8 had not stated before the police that he had
rushed to the first place of occurrence and had seen the
appellant and others assaulting Julekha Khatoon at the house of
the appellant and on the contrary, he had stated before the police
Patna High Court CR. APP (DB) No.541 of 2017 dt.06.03.2025
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that while he was plucking moong at his field, his brother’s son
came and told him that his mother had died, whereafter he had
gone to the shop of Vishwanath Sah and had seen the wife of
informant, namely Julekha Khatoon lying on the ground. Thus,
we find that as far as PW-6 Shamina Khatoon and PW-8 Md.
Qurban Ali are concerned, material contradictions exist in their
statement, hence their testimony is not trustworthy and cannot be
taken into consideration for the purpose of proving the guilt of the
appellant.
28. We find that the case of the prosecution is in two stages,
inasmuch as the first place of occurrence is stated to be the
house of the appellant, where Julekha Khatoon was assaulted by
the appellant and others by fists, slaps and legs and the second
place of occurrence is at Sahdeo Chowk near the shop of
Vishwanath Sah where the appellant had assaulted the deceased-
Julekha Khatoon by bamboo stick on her head and neck. As far
as the first occurrence is concerned, i.e. Julekha Khatoon being
assaulted at the house of the appellant by the appellant and
others, we find that there is no eye witness to the said
occurrence, however as far as the second place of occurrence is
concerned, we find that both PW-1 Md. Ramjan (informant of
the present case) and PW-4 Md. Mumtaj, who is the nephew of
Patna High Court CR. APP (DB) No.541 of 2017 dt.06.03.2025
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the deceased are eye witness to the aforesaid occurrence and
have deposed consistently with regard to the overtact engaged in
by the appellant qua the deceased-wife of the informant, namely,
Julekha Khatoon, which has also stood the test of cross-
examination and the defense has not been able to elicit any
contradiction. Both the said witnesses, PW-1 and PW-4 have
consistently deposed that the wife of the informant, namely,
Julekha Khatoon was assaulted by the appellant by bamboo
stick on head and neck at Sahdeo Chowk leading to her
sustaining injury and her subsequent death. We also find that the
said occurrence also stands corroborated by the material/
documentary evidence, i.e. seizure list pertaining to blood
soaked/stained earth, gathered from the place of occurrence
(Material Exhibit-2) and the weapon used in the offence, i.e.
blood stained bamboo stick (Material Exhibit-1), apart from the
postmortem report, i.e. the medical evidence available on record
which though shows only one external injury in the form of
lacerated wound on occipital bone of skull, however, the same
also shows that upon dissection, it was found that 4th, 5th and 6th
ribs of Julekha Khatoon were fractured and moreover, PW-14,
i.e. Dr. Pramod Kumar, who had conducted postmortem on the
dead body of the deceased, has opined that the death has been
Patna High Court CR. APP (DB) No.541 of 2017 dt.06.03.2025
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caused on account of hemorrhage and shock due to the injuries
mentioned in the postmortem report, caused by hard and blunt
substance. Thus, we find that the ocular evidences of PW-1 and
PW-4 are cogent, convincing, creditworthy and reliable, which
have stood the test of cross-examination and moreover, we do
not find that the said oral evidence of PW-1 and PW-4 is entirely
irreconcilable with the medical evidence, hence there is no
reason to create any doubt about the guilt of the appellant in the
alleged occurrence which stands proved beyond all reasonable
doubts.
29. As far as the argument of the learned counsel for the
appellant to the effect that the incident was not premeditated and
the appellant did not have any intention to kill the deceased
since he had not repeatedly assaulted the deceased on her head,
hence the present case would fall within the ambit of Section
304 Part-II of the IPC, is concerned, we find force in the said
submission for the reason that firstly, the appellant had assaulted
the deceased by a hard and blunt substance, secondly, only one
injury has been found on the vital part of the body i.e. occipital
bone of skull of the deceased and thirdly, the appellant had not
repeatedly inflicted bamboo stick blow on the deceased. Hence,
although we do not find any apparent error in the impugned
Patna High Court CR. APP (DB) No.541 of 2017 dt.06.03.2025
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judgment of conviction and sentence, nonetheless considering
the fact that the appellant had though engaged in overtact with
the knowledge that the same is likely to cause death but we find
that he did not have any intention to cause death. Thus, we have
been persuaded to hold that the appellant is liable to be
convicted under Section 304 Part-II of the IPC, hence the
conviction of the appellant under Section 302 of the IPC and the
sentence of rigorous imprisonment for life with fine of
Rs.10,000/- are set aside and instead the appellant is convicted
under Section 304 Part-II of the IPC and sentenced to undergo
rigorous imprisonment for ten years. In this connection
reference be had to the following judgments rendered by the
Hon’ble Apex Court :-
(i) Camilo Vaz vs. State of Goa, reported in (2000) 9
SCC 1;
(ii) Rampal Singh vs. State of U.P., reported in (2012) 8
SCC 289;
(iii) Ankush Shivaji Gaikwad vs. State of Maharashtra,
reported in (2013) 6 SCC 770;
(iv) Chenda vs. State of Chhattisgarh, reported in (2013)
12 SCC 110;
(v) Surain Singh vs. State of Punjab, reported in (2017)
Patna High Court CR. APP (DB) No.541 of 2017 dt.06.03.2025
34/34
5 SCC 796;
(vi) Anbazhagan vs. State, reported in 2023 SCC OnLine
SC 857; and
(vii) Velthepu Srinivas vs. State of Telangana, reported
in 2024 SCC OnLine SC 107.
30. In view of the fact that the appellant has now stood
convicted under Section 304 Part-II of the IPC and sentenced to
undergo rigorous imprisonment for ten years by the instant
judgment, the appellant, who is already in custody, is directed to
serve the remaining sentence.
31. Accordingly, the present appeal, i.e. Criminal Appeal
(DB) No.541 of 2017, is partly allowed to the extent indicated
above.
(Mohit Kumar Shah, J)
I agree.
Nani Tagia, J:
(Nani Tagia, J)
kanchan/-
AFR/NAFR AFR CAV DATE 19.02.2025 Uploading Date 06.03.2025 Transmission Date 06.03.2025
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