Patna High Court
Gulshan Khatoon vs The State Of Bihar on 29 July, 2025
Author: Sudhir Singh
Bench: Sudhir Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.933 of 2022
Arising Out of PS. Case No.-133 Year-2016 Thana- BENIPATTI District- Madhubani
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Gulshan Khatoon W/O Md. Ansar Resident Of Village- Benipatti, P.S.-
Benipatti, District- Madhubani.
... ... Appellant/s
Versus
1. The State of Bihar
2. Md. Samim Akhtar S/O Late Sabir Resident Of Village- Paigamberpur, P.S.-
Kewati, District- Darbhanga.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Md. Harun Quareshi, Advocate
For the State : Mr. Binod Bihari Singh, APP
For the Respondent : Mr. Anshul Aaryan, Advocate
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CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. Ramesh Chand Malviya)
Date : 29-07-2025
Heard Mr. Md. Harun Quareshi, learned senior
counsel for the appellant, Mr. Anshul Aaryan, learned counsel
for the Respondent and Mr. Binod Bihari Singh, learned APP
for the State.
2. This appeal has been filed on behalf of the
appellant/informant under Section 372 of the Code of Criminal
Procedure Act against the judgment and order of acquittal
dated 12.09.2022 rendered by learned Additional Sessions
Judge-IX, Madhubani in Sessions Trial No. 397 of 2017,
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arising out of Benipatti P.S Case No. 133 of 2016 whereby, the
concerned Trial Court has acquitted the Respondent No. -2-
Samim Akhtar from the charges leveled against him, for the
offences punishable under Section 364, 379, 302, 120B of the
Indian Penal Code (hereinafter referred as IPC).
3. The prosecution case, in brief, is that the
informant made a written complaint on 18.08.2016 at about
10.00 PM, after having dinner. The informant and her husband
were walking on road and when she returned home then saw
that her daughter, namely, Ulfat Parween was not present at
home and all the household-articles were scattered in the
house. Informant further stated that when she searched her
daughter then one Md. Hira told him that Md. Samim Akhtar
and three other unknown persons had come there in a four-
wheeler and kidnapped her daughter in said vehicle with one
briefcase. Informant further stated that Md. Samim Akhtar,
Md. Jamil Akhtar and Md. Wasim the accused persons
kidnapped her daughter with intention either to kill her or for
the purpose of human trafficking.
4. On the basis of written statement of the
informant, Benipatti P.S Case No. 133 of 2016 came to be
registered under Sections 364, 379, 302 and 120B of the
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Indian Penal Code and after investigating the case, the
Investigating Officer submitted charge sheet under Section
364, 379, 302, 120B of the Indian Penal Code on 23.01.2017
against the accused persons. Accordingly, cognizance of
offences under Sections 364, 379, 302, 120B of the IPC were
taken and after taking the cognizance the case was committed
to the Court of Sessions Judge, Madhubani on 01.11.2017.
5. Altogether seven prosecution witnesses have
been examined PW1-Md. Gulzar Shekh, PW2- Md. Jamil
Ansari, PW3- Abdul Wahab, PW4- Md. Ansar (husband of the
informant), PW5- Md. Mobin, PW6- Md. Gulshan Khatoon
(informant), PW7- Ranjit Kumar and no witness has been
examined from the other side.
6. Learned counsel for the appellant submitted
that the impugned judgment of acquittal is not sustainable in
the eye of law or on facts. Learned trial Court has not applied
judicial mind and erroneously recorded the judgment of
acquittal. He further submitted that PW-1 and PW-3 who were
present in Kasturba Hospital where the Judicial Magistrate,
took the statement of deceased wherein it was stated that Md.
Samim, Md. Jamil, Md. Salauddin and Md. Aftab Sprinkled
the kerosene and put her on fire. He further submitted that the
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prosecution failed to produce the fardbeyan of deceased which
was recorded by the Judicial Magistrate in Kasturba Hospital
before dying.
6.i. Learned counsel for the appellant submitted
that trial Court failed to appreciate that statement of the eye
witness categorically stated that the accused Md. Amim Akhtar
kidnapped the deceased and also failed to appreciate the
deposition of other witnesses and other evidences available on
record which established the prosecution case beyond shadow
of all reasonable doubts. He further submitted that Md. Gulzar
Sheikh (PW-1) and Abdul Wahab (PW-3) clearly stated in their
deposition that the accused Md. Samim Akhtar was taking the
deceased and sprinkle the kerosene on her body and put him
on fire but learned trial Court below failed to appreciate the
evidence of independent witnesses.
7. Learned counsel for the respondent submitted
that the accused is innocent and has not committed any crime
and has been falsely implicated in this case. There is a huge
contradiction in the deposition of the witnesses on the relevant
facts examined on behalf of the prosecution. The doctor and
the eyewitnesses have not been examined, which is fatal to the
prosecution case. He further submitted that material witness,
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Md. Hira, who is alleged to have seen the occurrence, was
withheld by the prosecution thus not examined. His non-
examination has caused prejudiced to the accused. All the
other witnesses are hearsay in the present case. He further
submitted that the First Information Report was lodged after
the delay of two days from the alleged occurrence and there is
no plausible explanation for the said delay. The doctor who
conducted the postmortem report has not been examined by
the prosecution. The inquest report was also not proved. He
further submitted that the chain of circumstances have not
been sufficiently connected and completed as to prove the guilt
of accused. The learned Trial Court has rightly acquitted the
accused and present appeal is devoid of merits.
8. On meticulous examination of the evidences
adduced, it is worth to note that PW-2 in his examination-in-
chief stated that on 18.08.2016 at 10 PM when he was going to
eat Paan from Paan stall at Neem Chowk where he saw a
vehicle parked there and Samim along with his brothers after
abducting the Ulfat Pravin fled away in the said vehicle. But
he did not disclose that how he identified the alleged accused
in night at 10:00 PM, as it is natural that there cannot be
sufficient light in the dark night especially at the small Paan
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stall and anyother source of light was available there nor to be
explained. PW-4 in para no. 8 of his deposition it has been
admitted that whatever statement he has given regarding the
alleged occurrence was told to him by other people. So, PW-4
is evidently a hearsay witness thus not reliable. Law on this
point is very clear as provided in section 60 of Indian
Evidence Act, 1872 (hereinafter referred as IEA), that the oral
evidence must be direct and to become relevant must be given
by the person who himself has heard or seen the occurrence.
Section 60 of Indian Evidence Act read as follow:-
60. Oral evidence must be direct. Oral
evidence must, in all cases, whatever, be
direct; that is to say, –
If it refers to a fact which could be seen, it
must be the evidence of a witness who says
he saw it;
If it refers to a fact which could be heard, it
must be the evidence of a witness who says
he heard it;
If it refers to a fact which could be perceived
by any sense or in any other manner, it must
be the evidence of a witness who says he
perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on
which that opinion is held, it must be the
evidence of the person who holds that
opinion on those grounds :
Provided that the opinions of experts
expressed in any treatise commonly offered
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opinions are held, may be proved by the
production of such treatises if the author is
dead or cannot be found, or has become
incapable of giving evidence, or cannot be
called as a witness without an amount of
delay or expense which the Court regards as
unreasonable.
Provided also that, if oral evidence refers to
the existence or condition of any material
thing other than a document, the Court may,
if it thinks fit, require the production of such
material thing for its inspection.
8.i. We further find that PW- 6 in her
deposition has stated that the information regarding the
alleged occurrence was communicated her by one Heera, but
the prosecution has not examined the said eyewitness Heera.
In para no. 24 of her deposition she stated that, at the relevant
time the complainant’s son Rafat and daughter Ulfat were
awake at home. In para no. 28 of her deposition she stated
that, her father-in-law and brother-in-law woke up on hearing
the cries of her son and daughter. But, the above-mentioned
eyewitnesses Rafat, Ulfat, the complainant’s father-in-law and
brother-in-law have also not been examined by the
prosecution. PW- 7 in para no. 13 of his deposition stated that
a death certificate was made in Mumbai in the name of Puja
Mukesh Sahu which is of Ulfat Praveen. It is clear from this
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that the decesased was living in Mumbai as husband and wife
with Mukesh Sahu in the name of Puja. PW-7 in para no. 9 of
his deposition, stated about the call details of the accused and
the deceased, from which it was clear that there was
conversation between the two till 24.08.2016.
8.ii. We further observe that PW-7 in para
no. 63 and 64 of his deposition stated that he had taken the
statement of the landlord in Mumbai in which landlord told
that Ulfat Praveen and Mukesh were living together as
husband and wife for a month by telling her name as Pooja
and when Pooja got burnt and while trying to save her
Mukesh also got burnt and both of them were admitted to the
hospital together by the landlord’s son. It is clear from the
above facts that Ulfat Praveen was in touch with Mukesh
Sahu and on his advice she went to Mumbai of her own will,
there both lived as husband and wife and in altercation with
Mukesh, Ulfat Praveen set herself on fire and while trying to
save her Mukesh Sahu also got burnt and both were admitted
to the hospital together and the accused did not kidnap Ulfat
Praveen by criminal conspiracy and the prosecution has
completely failed to prove its case through evidence.
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9. Further, it is evident that immense
inconsistency has appeared in the deposition of prosecution
witnesses as most of them are hearsay and not reliable and the
prosecution has not examined any eyewitness. This brings the
present case in the facet of circumstantial evidence as no direct
evidence or ocular witness is produced by the prosecution to
prove its case beyond shadow of all reasonable doubts. In
circumstantial evidence the chain of circumstance should
clearly establish the guilt of accused and no other probability,
which is not established in the instant case. There must be a
chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act
must have been done by the accused, which is not established
in the present case.
10. Moreover, Exhibit-C the confessional
statement of Mukesh Kumar Sah in which he has stated that he
met the deceased Ulfat Praveen while running a mobile shop
in front of Benipatti Post Office. Due to his separation from
her husband, the friendship between them developed. He went
to Mumbai for livelihood and the deceased Ulfat Praveen also
came to Mumbai with her own will and both started living as
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husband and wife in a rented house 9/2.2.2. Ulfat Praveen told
her name as Pooja and one day in a dispute over cooking food,
Ulfat Praveen set herself on fire by sprinkling kerosene on
herself and while trying to save her, he also got burnt and both
were admitted together in the same hospital for treatment. On
the basis of the above statement, the offence of murder of
deceased Ulfat Praveen was found not true against the present
accused.
11`. Further, the prosecution has not
examined the only eyewitness of the alleged kidnapping,
Heera, the victim’s siblings who were living with her at the
time of kidnapping, the complainant’s uncle and brother-in-
law, and any witness within the boundary of the crime scene.
The FIR has been registered two days after the alleged
occurrence and no reasonable explanation has been given by
the prosecution for such delay. The post-mortem report, dying
declaration and Panchnama of the deceased have not been
proved. The doctor and the witnesses of the Panchnama have
also not been examined. In this way, it seems justified to give
the benefit of the above shortcomings of the prosecution to the
defense.
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12. Thus, on the basis of the evidence
available on record, it is held that the charges against the
accused is not proved beyond shadow of all reasonable doubt
and the necessary elements mentioned in the charged sections
are lacking to hold him guilty under the charged sections. In
the totality of the circumstances which are appearing from the
evidences on the record, we are of the considered opinion that
the learned trial Court has not committed any error in
appreciation of the evidences.
13. We are dealing with an appeal against
acquittal and shall keep in mind the principles governing the
cases of appeal against acquittal. The principles have been
reiterated by the Hon’ble Supreme Court in catena of decisions
and one of them is the case of H.D. Sundara and Others vs.
State of Karnataka reported in (2023) 9 SCC 581. Paragraph
“8” whereof is recorded here-under for a ready reference:-
“8. In this appeal, we are called upon to
consider the legality and validity of the
impugned judgment State of Karnataka v.
H.K. Mariyapp, 2010 SCC OnLine Kar 5591
rendered by the High Court while deciding
an appeal against acquittal under Section
378 of the Code of Criminal Procedure,
1973 (for short “Cr.P.C“). The principles
which govern the exercise of appellate
Patna High Court CR. APP (DB) No.933 of 2022 dt.29-07-2025
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against acquittal under Section 378 Cr.P.C
can be summarized as follows: “
8.1.The acquittal of the accused further
strengthens the presumption of innocence;
8.2. The appellate court, while hearing an
appeal against acquittal, is entitled to re
appreciate the oral and documentary
evidence;
8.3. The appellate court, while deciding an
appeal against acquittal, after re
appreciating the evidence, is required to
consider whether the view taken by the trial
court is a possible view which could have
been taken on the basis of the evidence on
record;
8.4. If the view taken is a possible view, the
appellate court cannot overturn the order of
acquittal on the ground that another view
was also possible; and
8.5.The appellate court can interfere with
the order of acquittal only if it comes to a
finding that the only conclusion which can
be recorded on the basis of the evidence on
record was that the guilt of the accused was
proved beyond a reasonable doubt and no
other conclusion was possible.”
14. It is a case of acquittal in which the
presumption of innocence of the accused is, in fact, affirmed
by the learned trial Court. In fact, this Court is of the opinion
that the prosecution has failed before the learned trial Court to
prove the charges levelled against the respondent as opined by
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the learned trial Court. In ultimate analysis of the entire
materials and record, we find no reason to interfere with the
judgement of the learned trial court.
15. This appeal has no merit. It is dismissed
accordingly.
(Sudhir Singh, J)
( Ramesh Chand Malviya, J)
Mayank/-
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