{"id":212293,"date":"2010-04-19T00:00:00","date_gmt":"2010-04-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/md-sajjad-vs-state-of-bihar-on-19-april-2010"},"modified":"2017-10-06T01:50:09","modified_gmt":"2017-10-05T20:20:09","slug":"md-sajjad-vs-state-of-bihar-on-19-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/md-sajjad-vs-state-of-bihar-on-19-april-2010","title":{"rendered":"Md. Sajjad vs State Of Bihar on 19 April, 2010"},"content":{"rendered":"
Patna High Court<\/div>\n
Md. Sajjad vs State Of Bihar on 19 April, 2010<\/div>\n
Author: Shyam Kishore Sharma<\/div>\n
               Criminal Appeal (D.B.) No. 276 of 2004\n                                With\n               Criminal Appeal (D.B.) No. 287 of 2004\n\n                                   ****\n<\/pre>\n
Against the judgment and order, dated 26.02.2004, passed by Sri Deepak
\nKumar Sinha, Additional Sessions Judge, Fast Track Court, V, Bhagalpur, in
\nSession’s Trial No. 500 of 1996\/Trial No. 159 of 2002<\/p>\n
                                   ****<\/p>\n
Md. Sajjad, S\/O Md. Quddus, resident of village Shahkund, P.S. Shahkund,
\ndistrict Bhagalpur                  .. Appellant
\n                                    (in Cr. Appeal (D.B.) No.276\/04)<\/p>\n
1. Md. Nizam, S\/O late Md. Amjad\n<\/p>\n
2. Md. Jamid (Jamil), S\/O late Sk. Sammo Tailor
\n   Both residents of village Janipur, P.S. Shahkund, district Bhagalpur
\n                                       .. Appellants
\n                                       (in Cr. Appeal (D.B.) No.287\/04)<\/p>\n
                                Versus<\/p>\n
The State of Bihar                        .. Respondent
\n                                          (in both the Appeals)<\/p>\n
                                   ****<\/p>\n
For the appellant                         .. Mr. Md. Najmul Hoda, Adv.<\/p>\n
\n(in Cr. Appeal (D.B.) No.276\/04)\n\n\nFor the appellants                        .. M\/S Krishna Mohan & Praveen\n(in Cr. Appeal (D.B.) No.287\/04)             Kumar, Advs.\n\n\n                                   ****\n\n\n                           PRESENT\n\n  THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA\n\n  THE     HON'BLE        MR.       JUSTICE         GOPAL          PRASAD\n                                        2<\/span>\n\n\n\n\nShyam Kishore Sharma &\nGopal Prasad, JJ.            Both     these   two   appeals    are   being   heard\n\n<\/pre>\n
          together and disposed off by this common judgment in view of the fact<\/p>\n
          that both the appeals arise out of the common judgment and order,<\/p>\n
          dated 26.02.2004, passed in Session’s Trial No. 500 of 1996\/Trial No.<\/p>\n
          159 of 2002 by the Additional Sessions Judge, Fast Track Court, V,<\/p>\n
          Bhagalpur. The appellants of both the appeals have been convicted<\/p>\n
          under Sections 376, 302, 201 and 34 of the Penal Code and have been<\/p>\n
          sentenced to undergo rigorous imprisonment for life.<\/p>\n
                       2. The prosecution case, as alleged in the fardbeyan of the<\/p>\n
          informant Fulwato Devi (not examined) that on 02.07.1994 at about<\/p>\n
          06.30 p.m. her daughter, Nanki Kumari, went to purchase curd from<\/p>\n
          Shahkund Bazar. The daughter did not return by 07.30 p.m. then the<\/p>\n
          informant along with her nephew, Sanichar Mandal (P.W. 1) went to<\/p>\n
          make out a search of her daughter and reached the Shahkund Bazar. In<\/p>\n
          Shahkund Bazar one shop keeper, Umesh Prasad Sah (P.W. 3) met and<\/p>\n
          it was learnt that the girl has returned after purchasing curd worth fifty<\/p>\n
          paise. Thereafter, the informant returned back making out a search of<\/p>\n
          her daughter. The further case of the prosecution that due to raining<\/p>\n
          they remained there for half an hour and after the rain was over they<\/p>\n
          again went out for search of victim along with Sahdeo Mandal (P.W.<\/p>\n
          6), Narsingh Mandal (P.W. 7) and Prakash Mandal (not examined) after<\/p>\n
          search they could not find out the victim and then the informant<\/p>\n
          returned back. In the morning at about 05.00 a.m. one Mahesh Mandal<\/p>\n
          (P.W. 2 while returning after meeting the call of nature disclosed that at
\n                             3<\/span><\/p>\n
Kanchandar Bahiyar a dead body has been found. On getting the<\/p>\n
information the informant and several people of the village reached<\/p>\n
there and then saw the dead body of the daughter of the informant and<\/p>\n
they found a black mark on the neck and blood found at the private part<\/p>\n
and blood stains found on the pant of the victim.       The informant<\/p>\n
claimed that her daughter, Nanki Kumari, has been done to death after<\/p>\n
rape by some one while she was returning after purchase of curd. The<\/p>\n
further case that she doubted that some persons used to have ganja near<\/p>\n
Shitla Asthan may have done the offence. On the fardbeyan of the<\/p>\n
informant the first information report was lodged on 13.07.1994 for<\/p>\n
offence under Sections 376, 302, 201 and 34 of the Penal Code. After<\/p>\n
investigation the charge sheet was submitted and after taking<\/p>\n
cognizance the case committed to the Court of sessions and, thereafter,<\/p>\n
the charge was framed under Sections 376\/34, 302\/34 and 201\/34 of the<\/p>\n
Penal Code against the appellants.\n<\/p>\n
            3. After framing of the charge the trial proceeded and the<\/p>\n
prosecution adduced nine witnesses to support the prosecution case.<\/p>\n
P.W. 1 is Sanichar Mandal, P.W. 2 is Mahesh Mandal, P.W. 3 is<\/p>\n
Umesh Prasad Sah, P.W. 4 is Bechan Mandal, P.W. 5 is Brahmdeo<\/p>\n
Mandal, P.W. 6 is Sahdeo Mandal, P.W. 7 is Narsingh Mandal, P.W. 8<\/p>\n
is Shambhu Prasad Singh and P.W. 9 is Dr. Narendra Narayan Bhagat,<\/p>\n
who has done autopsy on the person of the deceased, Nanki Kumari.<\/p>\n
The documentary evidences adduced are Exhibit 1, signature of the<\/p>\n
witnesses on the inquest report, Exhibit 2 is the signature of the<\/p>\n
witnesses on the seizure list, Exhibit 1\/1 is the signature of the
\n                               4<\/span><\/p>\n
witnesses on the inquest report, Exhibit 2\/1 is the signature of the<\/p>\n
witnesses on the seizure list, Exhibit 2\/2 is the signature of the witness,<\/p>\n
Shambhu Prasad Singh, on the seizure list, Exhibit 3 is the post mortem<\/p>\n
report, Exhibit ‘X’ photo copy of the pathological report.<\/p>\n
             4. The learned counsel for the appellants, however,<\/p>\n
contends that the prosecution has not been able to prove the charges<\/p>\n
beyond reasonable doubts and the order of conviction of the learned<\/p>\n
lower Court is not on the basis of evidence or material on legal<\/p>\n
evidence. However, the question for consideration is that whether the<\/p>\n
prosecution has been able to prove charges beyond reasonable doubts.<\/p>\n
             5. The prosecution case is that the victim was sent for<\/p>\n
purchase of curd, but, she did not return and then the informant<\/p>\n
proceeded to enquire about her where about, but, could not find her out<\/p>\n
and on the next morning one Mahesh Mandal, P.W. 2, disclosed about<\/p>\n
a dead body in Kanchandar Bahiyar an then the informant and other<\/p>\n
villagers went there and found the dead body of the deceased land the<\/p>\n
first information report is against unknown.         P.W. 1 is Sanichar<\/p>\n
Mandal. However, he stated that he along with his aunt, Fulwato Devi,<\/p>\n
went to make out a search as Nanki Kumari was sent for bringing curd<\/p>\n
in the evening on the date of occurrence and they went to enquire and<\/p>\n
then Umesh Prasad Sah (P.W. 3) disclosed that a girl has come to<\/p>\n
purchase curd and has returned after taking the curd. Thereafter, then<\/p>\n
returned in search of the deceased, Nanki Kumari, but, they could not<\/p>\n
trace her out. He has further stated that on the next morning Mahesh<\/p>\n
Mandal (P.W. 2) while returning after meeting the call of nature
\n                              5<\/span><\/p>\n
disclosed about the dead body and then went there and saw the dead<\/p>\n
body of Nanki Kumari and blood found on the uterus. He has further<\/p>\n
stated that the police came and found the earthen pot (kapti) used for<\/p>\n
bringing curd near dead body of the Girls High School near Shitla<\/p>\n
Asthan. He has further stated that near Shitla Asthan there is a tree of<\/p>\n
palase under which Sajjad, Jamid (Jamil) and Nizam used to sit for<\/p>\n
taking ganja in every evening.\n<\/p>\n
            6. P.W. 2 is Mahesh Mandal, however, supported the<\/p>\n
prosecution case that Nanki Kumari had been sent to Shahkund Bazar<\/p>\n
to bring curd, but, she did not return and he had gone to make out a<\/p>\n
search, but on the next day at 05.30 a.m. while he was returning found<\/p>\n
a dead body having black mark on neck and blood stained on the pant<\/p>\n
of the said dead body. He has further stated that on 02.07.1994 while<\/p>\n
he was returning from Shahkund Bazar then he saw accused, Sajjad,<\/p>\n
Md, Jamid (Jamil) and Nizam sitting near Shitla Asthan and taking<\/p>\n
ganja. He has further stated in her cross examination that about ten<\/p>\n
yards west of the Shitla Asthan accused persons were taking ganja.<\/p>\n
            7. P.W. 3 has supported the prosecution case that on the<\/p>\n
date of occurrence in the evening a girl had come to his shop and<\/p>\n
disclosed her residence at Shivampur was aged ten years old and she<\/p>\n
purchased curd worth eight anas and the curd was given in earthen pot<\/p>\n
(kapti) and on the next day he learnt that she has been done to death by<\/p>\n
strangulating her neck after raping her and the dead body was lying<\/p>\n
near Kanya Madhya Vidyalaya. He went there and identified the dead
\n                              6<\/span><\/p>\n
body of the girl and it was the same girl, who had purchased curd on<\/p>\n
the last evening of the date of occurrence from his shop.<\/p>\n
             8. P.W. 4 is Bechan Mandal. He has also supported the<\/p>\n
prosecution case that he saw the dead body of Nanki Kumari and has<\/p>\n
also put his signature on the inquest report though he has been declared<\/p>\n
hostile as he has not supported the prosecution case by stating that he<\/p>\n
did not make any statement before the police, however, has proved that<\/p>\n
he was the dead body of the deceased on the date of occurrence.<\/p>\n
             9. P.W. 5, Brahmdeo Mandal, has also supported the<\/p>\n
prosecution about his signature on the inquest report and about the<\/p>\n
lying of the dead body in Kanchandar Bahiyar, but, this witness has<\/p>\n
also been declared hostile by the prosecution.\n<\/p>\n
             10. P.W. 6, Sahdeo Mandal, stated that he had no talk with<\/p>\n
Fulwato Devi and, hence, not supported the prosecution case about the<\/p>\n
fact that he went along with the informant for search of her daughter<\/p>\n
and this witness has been declared hostile by the prosecution though<\/p>\n
has supported that on the next morning the dead body was found.<\/p>\n
             11. P.W. 7, Narsingh Mandal, however, did not supported<\/p>\n
the prosecution case at all and has stated that he did not stated anything<\/p>\n
about the occurrence and, hence, declared hostile by the prosecution.<\/p>\n
             12. P.W. 8, Shambhu Prasad Singh, has proved his<\/p>\n
signature on the seizure list and the seizure is with regrd to the blood<\/p>\n
stained clothes and earthen desmair with curd and the earthen pot<\/p>\n
(kapti).\n<\/p>\n
                               7<\/span><\/p>\n
             13. P.W. 9 is the doctor, who has found the injury on the<\/p>\n
person of the deceased and found the death by strangulation and a<\/p>\n
laceration in the vagina and mark of violence on vagina and neck and<\/p>\n
the death is due to asphyxia due to pressure around the neck. Further,<\/p>\n
considering the evidence though it has been established that the dead<\/p>\n
body of the deceased was found at the place of occurrence, the curd and<\/p>\n
the earthen pot were also found near the dead body and there is<\/p>\n
evidence that after purchase of curd she proceeded from the shop and<\/p>\n
the occurrence took place while returning at Shitla Asthan.<\/p>\n
             14. So far the implication of the accused persons is<\/p>\n
concerned, there is only evidence of P.W. 1 that the accused persons<\/p>\n
used to take ganja near Shitla Asthan under a palase trea and further<\/p>\n
P.W. 2 has stated that on the date of occurrence the appellants were<\/p>\n
taking ganja near Shitla Asthan in the evening of 02.07.1992, however,<\/p>\n
the time specifically has not been mentioned. However, their evidence<\/p>\n
does not support to establish the charge for rape. On the basis of these<\/p>\n
evidence it can not be said that appellants in all probability committed<\/p>\n
the offence. However, there is no evidence that the accused persons<\/p>\n
were seen along with the deceased. There is only evidence that the<\/p>\n
accused persons were taking ganja under a tree near Shitla Asthan at<\/p>\n
about the place of occurrence, but, even exact time has not been<\/p>\n
mentioned and the accused persons used to take ganja on every<\/p>\n
evening, it does not establish the guilt either for the rape or for murder.<\/p>\n
One may infer on fact establish that since they were taking ganja in the<\/p>\n
evening then they may have done the occurrence.\n<\/p>\n
                              8<\/span><\/p>\n
             15. It is true that it is matter of great regret that a cold<\/p>\n
blooded murder to go unpunished, however, on the facts or the<\/p>\n
evidence established one can only say that the accused may have<\/p>\n
murdered, but, there is a great difference between may be proved and<\/p>\n
must be proved and this distance must be traveled by legal, credible,<\/p>\n
cogent, reliable and unimpeachable evidence and unless the prosecution<\/p>\n
proved the case by cogent, reliable and unimpeachable evidence a<\/p>\n
conviction can not base on mere conjuncture and surmises or on<\/p>\n
suspicion. A suspicion, however, grave may be it can not take the<\/p>\n
place of proof and whatever evidence available on record it can not go<\/p>\n
beyond suspicion much less the proof and on these facts it may not be<\/p>\n
inferred that the prosecution has proved it’s case beyond reasonable<\/p>\n
doubts.\n<\/p>\n
             16. However, the learned trial Court while convicting the<\/p>\n
accused persons taken into consideration the fact that the accused<\/p>\n
persons have confessed before the investigating officer, there is no<\/p>\n
evidence to this effect.     The investigating officer has not been<\/p>\n
examined and even the informant has also not been examined for the<\/p>\n
reasons known the prosecution. However, whatever stated in the<\/p>\n
confessional statement before the police it is only in the case diary<\/p>\n
itself and has not brought any evidence, hence, are not legal evidence to<\/p>\n
be relied upon and, hence, the learned trial Court misdirected itself in<\/p>\n
taking into consideration those fact which were in the case diary which<\/p>\n
are not legal evidence to consider and which are the confession before<\/p>\n
the police officer. A confession before the police officer is hit by
\n                                    9<\/span><\/p>\n
Sections 24, 25 and 26 of the Evidence Act and more over that has not<\/p>\n
been brought on evidence in Court and, hence, we are of the considered<\/p>\n
opinion that the prosecution has not been able to prove the charges<\/p>\n
beyond reasonable doubts on the basis of a legal evidence adduced in<\/p>\n
the case and the judgment and order passed by the learned lower Court<\/p>\n
is not sustainable in the eye of law and, hence, the judgment and order<\/p>\n
of conviction and sentence of the learned lower Court is hereby set<\/p>\n
aside.    Appellants are ordered to be acquitted of the charges as<\/p>\n
prosecution has not been able to prove the charges beyond reasonable<\/p>\n
doubts.\n<\/p>\n
              17. Both the Criminal Appeals are allowed. Appellants,<\/p>\n
Nizam and Jamid (Jamil) (in Cr. Appeal (D.B.) No. 287 of 2004) are in<\/p>\n
custody are hereby ordered to be set at liberty henceforth, if not<\/p>\n
required in any other case. All the appellants are discharged from the<\/p>\n
liabilities of their bail bonds.<\/p>\n
\n\n\n\n                                       (Shyam Kishore Sharma, J.)\n\n\n\n                                       (   Gopal   Prasad,     J.   )\n\nThe Patna High Court,\nThe 19th day of April, 2010,\nN.A.F.R.\/S.A.\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Md. Sajjad vs State Of Bihar on 19 April, 2010 Author: Shyam Kishore Sharma Criminal Appeal (D.B.) No. 276 of 2004 With Criminal Appeal (D.B.) No. 287 of 2004 **** Against the judgment and order, dated 26.02.2004, passed by Sri Deepak Kumar Sinha, Additional Sessions Judge, Fast Track Court, V, Bhagalpur, in […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-212293","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nMd. 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