Patna High Court
Md. Islam @ Phul Babu vs The State Of Bihar on 3 March, 2025
Author: Rajiv Roy
Bench: Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.261 of 2024
Arising Out of PS. Case No.-6 Year-2013 Thana- RAMGARHWA District- East Champaran
======================================================
Md. Islam @ Phul Babu Son of Late Gayasuddin R/o vill - Vishambharpur,
P.S. - Ramgarhwa, Distt. - East Champaran
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Bimlesh Kumar Pandey, Adv.
Mr. Rahul Kumar, Adv.
For the Respondent/s : Mr. Bal Mukund Prasad Sinha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
03-03-2025 Heard Mr. Bimlesh Kumar Pandey, learned
counsel for the sole appellant and Mr. Bal Mukund Prasad
Sinha, learned APP.
2. The present appeal has been preferred
against the judgment and order dated 06.11.2023/09.11.2023
passed by learned Additional Sessions Judge-13, East
Champaran, Motihari by which while exonerating the other
accused persons of the charges, the appellant, Md. Islam @
Phul Babu has been convicted under Section 304(B) of the
Indian Penal Code and sentenced to undergo Rigorous
Imprisonment for 10 years with a further direction to that the
period already undergone by the convict shall be set off from
the period of sentence.
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3. Earlier the appeal was admitted on
29.01.2024
by the Co-ordinate Bench and the Trial Court
Record was called for which has now been received.
4. As per the prosecution story, the informant,
the father of the victim (PW 4) alleged that on 14.01.2013, he
received telephonic information about the killing of his
daughter, Afsana Khatoon by the in-laws. On receipt of such
information, when he along with his son, Md. Saddam and a
co-villager went to the matrimonial home, none of the accused
persons were present and the villagers informed that the police
has taken the body. Upon reaching Ramgarhwa Police Station,
found the burnt dead body of his daughter which was later sent
for postmortem.
5. The informant alleged that his daughter was
married seven years ago but there was repeatedly tortured for
want of dowry. Fed up with the same, she returned home and
filed Complaint Case No. 772 of 2011 before the competent
Civil Court, Muzaffarpur. It however, later came to be
compromised on 09.05.2012 whereafter, the victim returned to
her in-laws house. However, on 14.01.2013, they got the
information about her killing. This led to the FIR.
6. The police investigated the matter and as the
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appellant chose to abscond for years, only after he was arrested
about five years later on 31.12.2017, the charge-sheet no. 250
of 2017 came to be submitted against him on the same day
(wrongly typed as 27.10.2018 in the judgment). The charges
were framed on 08.05.2019, whereafter, the accused having
denied their role in the occurrence, the trial commenced.
7. The prosecution side in support of its case
put forward eight witnesses as follows:-
1. PW-1 Md. Saddam Hussain, (brother of
the deceased,
2. PW-2 Md. Dildar, (cousin brother of the
deceased,
3. PW-3 Noor Mohammad, (uncle of the
deceased,
4. PW-4 Md. Akbar (informant and father
of the deceased)
5. PW-5 Md. Phool Babu, (brother in law
of the deceased)
6. PW-6 Dr. Surendra Nath Sinha, (the
Medical Officer of SKMCH, Muzaffarpur
who conducted postmortem)
7. PW-7 Ramayan Ram, ( the second
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8. PW-8 Gauri Shankar Ram (first
Investigating officer)
8. The prosecution further put forward the
following exhibits:-
(i) Exhibit-1 written report,
(ii) Exhibit-2 Post Mortem report of the
victim,
(iii) Exhibit-3 Charge-sheet No. 250/2017,
(iv) Exhibit-4 Signature of the Station Head
Officer on the written report,
(v) Exhibit-5 Signature of the SHO on the
Formal FIR.
9. PW-1 Md. Saddam Hussain and PW-2
Md. Dildar are brother/cousin brother respectively of the
deceased who supported the prosecution story. They deposed
that the occurrence took place seven years ago when they got
the information that their sister has been burnt to death. Upon
reaching there, they came to know that the police has taken
away the dead body which was found at the police station.
They further deposed that the deceased used to complain about
the dowry demand by the in-laws and when the same was not
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fulfilled, she was killed.
10. PW 3 Noor Mohammad is the cousin
uncle of the deceased. He has also supported the prosecution
story. According to him, on information, he along with his
brother (informant) and Sonu Afsana Khatoon (not examined)
went to the place where no member of the in-law was present.
The villagers informed that the body has been taken to the
police station, went there and found the burnt dead body. The
allegation is that when she last returned to her Maika, had
informed that they are demanding Rs. 1,00,000/- .
11. PW-4 is the informant. According to him,
the lady was married in the year 2007 but was tortured for
dowry as the appellant wanted money to enter into scrap
dealing. Fed up with the same, a case was also filed by the
victim. A ‘Panchayati’ took place and on the basis of the
agreement submitted before the Court, they took her to in-laws
house but was later killed. He found the body of his daughter at
Ramgarhwa Police Station. It was later taken by the Police to
Sadar Hospital Motihari from where, it was sent to SKMCH,
Muzaffarpur for postmortem.
12. PW-5 is Md. Phool Babu who is son-in-
law of the informant/brother-in-law of the deceased. He has
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also narrated the same story which have been deposed by the
PWs 1 and 2.
13. PW-6 is the Medical Officer, Dr.
Surendra Nath Sinha who was posted as an Assistant
Professor, SKMCH, Muzaffarpur and conducted the
postmortem. The report reads as follows:-
External Examination
(i) On opening the neck
subcutaneous tissue and muscle of neck were
congested. Trachea was congested with
fracture of tracheal ring with blood clots.
(ii) There was protrusion of
tongue in between the teeth and outside the
couth. Bothe eye bolls were bulged.
(iii) There was post-mortem
dermo epidermal burn was present over
whole body. There was absence the of the red
zone of reaction over the skin and
subcutaneous tissues were light yellow in
colour and hard in consistence. There was
presence of few blisters without fluid inside.
(iv) All the abdominal internal
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congested.
Opinion- The deceased died
due to asphyxia as a result of pressure overt
the neck. Time since death- within 2 to 4 days
since the time of post mortem examination.
This post mortem report has
been prepared by me in my own handwriting
with my signature to which. He identifies. (on
the basis of statement of the witness the
postmortem report of the dead body of
Afshana Khatoon is marked as Ext.2) Cross
Examination on behalf of defence-
He have not mentioned the
age of deceased over the post-mortem report
such type of symptom cannot occur in
suicidal case. Over the post-mortem report
the P.S. case number is not mentioned and we
note down only the P.M. examination number
40/13 dated 16.01.13 over the post-mortem
report.
Symptom of asphyxia occurs
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in homicide as well as suicidal case also but
in hanging case also sometimes symptom of
asphyxia may occur.
In the post mortem report,
there is no mention of bad smell coming out
from the internal body of the deceased.
There was superficial burn
and second degree of burn dermo epidermal
burn but the precented whose post-mortem
was conducted by me.
It is wrong to say that the
post-mortem report is collusive one and it
also wrong to say that the post-mortem
report is only a table work and not based
upon actual post-mortem of the dead body of
deceased whose post-mortem was conducted
by me.
He conducted the post-
mortem on the basis of direction issued by
the District Magistrate, Muzaffarpur vide is
order no. 124 dated 16-01-2013.
He do not find any referred
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report of any doctor or hospital. He only
conducted the post-mortem of deceased.
14. The aforesaid witness has recorded that the
victim died due to asphyxia as a result of pressure on the neck.
15. PWs-7 Ramayan Ram and 8 Gauri
Shankar Ram are the two Investigating Officers of the case.
While PW-8 took over the case from SHO, Ramgarhwa after
the FIR was lodged and visited the place of occurrence, the
PW-7 is the second Investigating Officer who joined in the
month of July, 2017 and took over the charge of this case on
12.07.2017. He arrested the appellant on 31.12.2017 and
submitted charge-sheet vide no. 250/2017 on the same day
under Section 304(B)/120/34 of the IPC.
16. PW-8 is Gauri Shankar Ram who was
posted on 15.01.2013 at Ramgarhwa Police Station as Sub-
Inspector of Police. According to PW 8, he was made the
Investigating Officer by SHO, Ganesh Pathak. He recorded the
statement of Akbar Mian, Saddam Hussain, Noor
Mohammad and Md. Nisar. The said witness also inspected
the place of occurrence where he found bed and a tin-box.
According to him, the postmortem report recorded death due to
burn injuries.
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17. The learned APP appearing in the trial
supported the prosecution story and according to him for want
of dowry, the informant’s daughter was killed by the accused
persons and as such, they be convicted/sentenced. The defence
denied the accusation and the learned defence counsel
submitted that the married sisters-in-law (Nanad) have also
been made accused. Further, Lal Babu is differently abled
while the mother-in-law is 76 years old. The husband
(appellant) was outside the place of occurrence for work. The
lady actually committed suicide on minor issue but they were
implicated.
18. The Trial Court having heard the
parties/State and recording the statement of the PWs and came
to the conclusion that so far as the marriage is concerned, they
have consistently stated 2007 to be the year of marriage. As the
date of occurrence is 14.01.2013, assuming 2007 as the year of
marriage, the occurrence took place within seven years.
19. The Trial Court also dealt with Section
304(B) of the IPC to prove that earlier the torture took place,
Panchayati held, whereafter, they had taken the deceased to
their house but within seven months, the killing took place.
The Trial Court though held that entire family members
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including the married sisters-in-law cannot be dragged in the
case and as such, save and except the appellant herein, the
others were given benefit of doubt and acquittal order was
passed against them.
20. So far as the appellant/husband herein is
concerned, the Court held him guilty under Section 304(B) of
the IPC and sentenced to undergo 10 years Rigorous
Imprisonment vide an order dated 06.11.2023/09.11.2023.
21. Aggrieved, the present appeal.
22. Mr. Bimlesh Kumar Pandey, learned
counsel for the sole appellant submits that the prosecution
failed to consider the fact that none of the prosecution
witnesses were able to give the date, month and year of the
marriage to prove that it took place within seven years. His
submission is that accepting the year as 2007 and concluding
that since the occurrence took place in the month of January,
2013, it is within seven years, is actually bad only to prove the
case to be under 304(B) of the IPC.
23. It is his next contention that after the victim
returned home and lodged the case no. 772/2011 before the
competent Civil Court, Muzaffarpur, it was compromised on
09.05.2012. The victim thereafter came back to her in-laws
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house. His submission is that from 09.05.2012 to 14.01.2013,
when the unfortunate death took place, none of the prosecution
witnesses has/have alleged/supported/put forward any theory to
show that any demand was made.
24. He has taken this Court to Section 304(B)
of the Indian Penal Code which reads as follows:-
“304-B. Dowry death.–(1)
Where the death of a woman is caused by
any burns or bodily injury or occurs
otherwise than under normal
circumstances within seven years of her
marriage and it is shown that soon before
her death she was subjected to cruelty or
harassment by her husband or any relative
of her husband for, or in connection with,
any demand for dowry, such death shall be
called “dowry death”, and such husband
or relative shall be deemed to have caused
her death.”
25. Learned counsel reiterates that neither the
date, month, year of the marriage is on record nor the Trial
Court took into account the fact that after the Panchayati took
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place and the victim returned to her in-laws house on
09.05.2012, the prosecution witnesses ever received any
information regarding the demand of dowry. In that
circumstances, Section 304(B) of the IPC is not attracted.
26. He further has taken this Court to the
postmortem report conducted by the doctor PW 6 who was
then posted at SKMCH, Muzaffarpur. He has given the opinion
of asphyxia due to pressure over the neck. According to him,
the consistent stand of the prosecution is that the death took
place due to burn injuries whereas in the medical
opinion/postmortem report, it has been recorded as asphyxia
due to pressure over the neck. He has further taken this Court
to the same postmortem report to show that it occurs both in
homicide as well as in suicidal case. He submits that against
the prosecution story of the victim having been burnt to death,
when the medical opinion differs and also points to suicidal
case, the benefit of doubt has to be extended to the accused
side.
27. So far as applicability of Section 304(B)
IPC is concerned, learned counsel for the appellant has taken
this Court to an order of the Hon’ble the Supreme Court
passed in the case of Baljeet Singh and Anr. vs. State of
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Haryana reported in 2004 3 SCC 122 with specific reference
to paragraphs-17 and 21.
28. The said paragraphs-17 and 21 of Baljeet
Singh (supra) read as follows:-
“17. Having noticed the
requirement of law both under Section 304-B
of the IPC as also under Section 113-B of the
Evidence Act, we are of the considered
opinion that both the courts below erred in
drawing an adverse presumption against the
accused by shifting the onus on them to prove
the date of marriage, which, in our opinion,
is not the requirement of law. On the
contrary, the law requires the prosecution to
establish first by cogent evidence that the
death in the case occurred within 7 years of
the marriage. Therefore, we will have to
consider whether the prosecution has
established the factum of Darshana having
died within 5 years of her marriage as
contended by PW-4. A perusal of his
evidence shows that according him marriage
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1982 but be was not aware which Sambat it
was. He says the month of Jaistha but was
not sure whether it was Sambat 2035. He
specifically states that a Bahi entry was
made by his nephew Sathir in regard to the
date of marriage and expenses incurred in
connection therewith, but this document was
not produced in the court Existence of such a
document is established not only from the
evidence of PW-4 but also from the evidence
of the Investigating Officer PW-10 who says
that he was made known of the existence of
such a document but he did not either seize
the said document or verify the date of
marriage from the said document. He also
states that he made an inquiry about the year
of marriage of Darshana and nobody was
able to tell the date but year of marriage was
told to him. He goes further to state that he
did not record the statement of those persons
who told him about the year of marriage.
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16/28Therefore, it is clear that the prosecution has
failed to produce the available evidence
regarding the date of Darshana s marriage
thereby failed to discharge its initial onus of
proof. The defence in this case has
unequivocally challenged the correctness of
the date of marriage, as stated by the
prosecution. It even examined defence
witnesses in this regard. Be that as it may the
question whether the defence has been able
to establish its version of the date of
marriage is immaterial because in the first
instance it was for the prosecution to
establish this fact which for reasons stated
above, it has failed to do. Both the courts
below, thus, have clearly erred in shifting the
onus of proving the date of marriage on the
defence and drawing a presumption against
it. This is evident from the finding of the trial
court which is as follows. “Accused Baljeet
in this case has not been abile to rebut the
mandatory presumption under Section 113-B
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has been able to prove him the guilt”. This
finding which is concurred to by the High
Court, in our opinion, is wholly erroneous
and unsustainable in law.
21. PW-6 is an uncle of
Darshana who also speaks about the
harassment allegedly meted out by the
appellant and his family to Darshana but
these facts are not mentioned to the 1.0. in
his statement under Section 161 (See Ex.
DA). He states that they came to know the
death of Darshana from one Balwan who had
told about the death of Darshana to a cousin
of Darshana, by name Dilbagh, who in turn
had informed the other members of the
family about the death of Darshana.
Curiously none of the witnesses who came to
know of the incident from Balwan are able to
give either the correct address, the
particulars of the caste and occupation of
Balwan which gives us an impression that
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this Balwan is an imaginary person. In these
circumstances, bearing in mind the falsity we
have found in the evidence of PW-4, we do
not consider it safe to place reliance on such
oral evidence led by the prosecution to
establish the fact that the appellant or his
family used to harass Darshana. There is one
other aspect of the case to be borne in mind
to consider the role played by the appellant
in the alleged harassment of Darshana. It
has come in evidence that the appellant was
not residing in the village with his wife but
was employed in Jagadhari in Ambala
District and was only visiting the village now
and then. This fact has been noticed by the
trial court but it rejected the same by
observing that if the appellant was not
present when Darshana died the evidence
under section 304-B is not effected by the
factum of appellant being away from his
house at the time of death, forgetting the fact
that the argument of the defence was not
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merely the absence of the appellant at the
time of death of Darshana but also the
possibility of appellant s involvement in the
alleged harassment, since most of the time he
was away from the village. That apart, we
notice that the courts below have not founded
the guilt of the appellant on the oral evidence
produced by the prosecution but the same is
based primarily on a presumption drawn
under Section 113-B of the Evidence Act
which we have held to be impermissible in
law in view of the prosecution s failure to
prove the basic facts which was a condition
precedent to the drawing of such a
presumption.”
29. He has further taken this Court to another
order of Hon’ble the Supreme Court passed in the case of
Charan Singh @ Charanjit Singh vs. State of Uttarakhand
reported in 2023 SCC Online SC 454 with referece to
paragraph-21 and 23 which read as follows:-
“21. In the aforesaid evidence
led by the prosecution, none of the witnesses
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deceased by the appellant or any of his family
members on account of demand of dowry soon
before the death or otherwise. Rather
harassment has not been narrated by anyone.
It is only certain oral averments regarding
demand of motorcycle and land which is also
much prior to the incident. The aforesaid
evidence led by the does not fulfil the pre-
requisites to invoke presumption under Section
3048 IPC or Section 1138 of the Indian
Evidence Act. Even the ingredients of Section
498A are not made out for the same reason as
there is no evidence cruelty and harassment to
the deceased soon before her death.
23. On a collective
appreciation of the evidence led by the
prosecution, we are of the considered view that
the prerequisites to raise presumption under
Section 304B IPC and Section 113B of the
Indian Evidence Act having not been fulfilled,
the conviction of the appellant cannot be
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21/28justified. Mere death of the deceased being
unnatural in the matrimonial home within
seven years of marriage will not be sufficient
to convict the accused under Section 304B and
498A IPC. The cause of death as such is not
known”.
30. Lastly, learned counsel for the appellant has
taken this Court to another order of Hon’ble the Supreme
Court passed in the case of Karan Singh v. State of Haryana
reported in 2025 0 Supreme (SC) 254 with reference to
paragraphs-8 and 17 which read as follows:-
“8. In this case, there is no
dispute that the death of the appellant’s wife
occurred within seven years of the marriage.
Section 113-B of the Evidence Act reads
thus:
“113-B. Presumption as to
dowry death. When the question is whether a
person has committed the dowry death of a
woman and it is shown that soon before her
death such woman had been subjected by
such person to cruelty or harassment for, or
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the Court shall presume that such person
had caused the death.
Explanation. For the
purposes of this section, “dowry death” shall
have the same meaning as in Section 306-18
of Indian Penal Code (45 of 1860).”
The presumption under
Section 113-B will apply when it is
established that soon before her death, the
woman has been subjected by the accused to
cruelty or harassment for, or in connection
with, any demand for dowry. Therefore, even
for attracting Section 113-B, the prosecution
must establish that the deceased was
subjected by the appellant to cruelty or
harassment for or in connection with any
demand of dowry soon before her death.
Unless these facts are proved, the
presumptions under Section 113-B of the
Evidence Act cannot be invoked.
17. Now, coming to evidence
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that any demand of dowry was made to PW-
8 or in his presence. She claimed in the
cross-examination that PW-8 had told her
about the maltreatment and the demand of
dowry by the accused three to four months
after the marriage. She stated that before
23rd June 1998, the police did not record the
statement of PW- 8. She stated that PW-8
had come to her house after the death of the
deceased but she did not tell her brother
make a statement before the police. The
statement of PW-8 was recorded more than
two and half months from the date of the
incident. Moreover, he had no personal
knowledge whether the appellant had
subjected the deceased to cruelty or
harassment. Therefore, the prosecution did
not prove the material ingredients of the
offence punishable under Section 304-B. Not
a single incident of cruelty covered by
Section 498-A was proved by the
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24/28prosecution. Section 304-B of the IPC was
brought on the statute book in 1986. This
Court has repeatedly laid down and
explained the ingredients of the offence
under Section 304-B. But, the Trial Courts
are committing the same mistakes
repeatedly. It is for the State Judicial
Academies to step in. Perhaps this is a case
of moral conviction.”
31. Learned counsel for the appellant concludes
by submitting that the chain of Section 304(B) of the IPC has
not been completed and further contrary to the statement of the
prosecution witnesses that she died of burn injuries, the
postmortem records asphyxia due to pressure over the neck.
Further, while for the same set of accusation, others have been
granted benefit of doubt, the husband has been singled out only
because, he was duty bound to protect the lady in which he
failed. The moral side apart, which cannot be denied, as he
failed as a husband, whether that can be the reason for his
conviction and the sentence, this Court has to decide as the
appellant is in custody since 31.12.2017.
32. Learned APP, Mr. Sinha, on the other, hand
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submits that the year 2007 has come as the year when marriage
took place. The occurrence happened on 14.01.2013, the
learned Trial Court was fully justified in concluding that it is
within seven years of the marriage and as such, Section 304(B)
of the IPC stands attracted. It is his further submission that the
lady on demand of dowry returned home, filed the Complaint
Case No. 772 of 2011 which ended into compromise on
09.05.2012. Thereafter, she returned to her in-laws house
followed by the unfortunate incident. Thus, the demand of
dowry also stands proved.
33. Learned APP further submits that so far as
the postmortem report is concerned, though the cause of death
has been shown as asphyxia due to pressure on the neck, the
fact remains that the burn injuries were also found and thus,
that cannot be a ground for his acquittal. The last submission is
that the appellant admittedly being the husband, has to be held
responsible for the unfortunate death of the lady.
34. Having gone through the facts of the case
and the submissions of the parties, so far as the marriage year
is concerned, this Court is in agreement with the learned Trial
Court as also the learned APP that simple missing of the date
and month cannot be the basis to shrug off the consistent stand
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of the prosecution witnesses that the marriage took place in the
year 2007. Since the death occurred on 14.01.2013, it is within
the seven years of marriage.
35. Having said so, this court cannot overlook
the fact that so far as the demand of dowry is concerned,
despite the prosecution examining altogether five witnesses
who all are family members being the father, uncle, cousin
brothers and brother-in-law of the deceased, none of them
has/have deposed that after the ‘Panchayati’ took place and the
lady returned on 09.05.2012; there was any demand of dowry
till the death took place on 14.01.2013. Thus, the chain of
Section 304(B) of the IPC is not complete in this case. The
opinion of this Court is backed by the judgment of the Hon’ble
Apex Court in the case of Baljeet Singh (supra).
36. This court has also taken note of the
postmortem report wherein asphyxia due to pressure on the
neck has been recorded contrary to the consistent stand of the
prosecution witnesses that when they entered the room, the
kerosene oil smell was there and the lady was found burnt.
Further, the Doctor has deposed that it can be a case of
homicide as well as suicide.
37. The last point put forward by the learned
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counsel for the appellant is worth consideration. For the same
set of accusation against all the accused persons, while the
learned Trial Court gave them (the family members of the
appellant) the benefit of doubt clubbing them as being married
sisters-in-law, aged mother-in-law and a crippled father-in-law,
the appellant was singled out and convicted.
38. The considered opinion of the Court is that
the learned Trial Court should not have singled out the
appellant only because he is /was husband of the victim lady.
This definitely comes in the category of moral conviction of
the appellant. In case of bail applications, the Court takes this
point that he being the husband failed to do his duty and as
such, cannot exonerate himself from the responsibility of the
unfortunate death. However, in case of trial, only because he is
the husband, it cannot be taken as a ground to convict the
person unless the prosecution side has proved beyond doubt the
role of any accused much less the husband.
39. The case of Karan Singh (supra) as put
forward by learned counsel for the appellant has to be taken
note of where the Hon’ble Apex Court recorded that despite
laying down the ingredients of under Section 304(B) of the
IPC, the Trial Courts are committing the same mistakes again
Patna High Court CR. APP (SJ) No.261 of 2024 dt.03-03-2025
28/28
and again and it is time for the State Judicial Academy to look
into the matter to stop such kind of moral conviction.
40. Considering the aforesaid facts which stand
recorded, this Court is of the opinion that the prosecution side
failed to prove beyond doubt the role of the husband in the
killing/unfortunate death of the lady, Afsana Khatoon. It has
been informed that the husband is in custody since 31.12.2017.
41. The order of conviction dated
06.11.2023/09.11.2023 passed under Section 304(B) of the
Indian Penal Code by learned Additional Sessions Judge-13,
East Champaran, Motihari stands set aside.
42. The appellant, Md. Islam @ Phul Babu
shall be set free if not wanted in any other case.
43. Cr. Appeal (SJ) No. 261 of 2024 is
allowed.
(Rajiv Roy, J)
perwez
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 06.03.2025
Transmission Date 06.03.2025
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