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2023 Supreme(Pat) 292

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and SHAILENDRA SINGH, JJ.
Criminal Appeal (DB) No. 1175, 515 of 2017
(22.6.2023)
Md. Imtiyaz Alam (in 1175)
Md. Ramjan Ali & Anr. (in 515) ... Appellants
vs.
State of Bihar ... Respondents
(in both)

Advocates:
For the Appellants : M/s Vikramdeo Singh, Shruti Sinha (in 1175); Nafisuzzoha (in 515).
For the Respondents: Mr. Shivesh Chandra Mishra, APP (in 1175); Ajay Mishra, APP. (in 515)

Headnote:

Indian Penal Code, 1860 – Sections 302/34 & 201/34 – Deceased alleged to have been strangulated at the appellants and others – the Doctor not reporting whether emphysematons bullae was or was not found on the surface of the lungs, leaving a doubt whether the death was by hanging – in strangulation, emphysematons ullae is generally not present – no detailed post – naortem report given to ratify the opinion of the doctor that the death was because of stragulation – no innestigation on the point as to who had brought the deceased to the hospital and in what state of health – no incriminating circumstance, indicating the factum of murder, found by the I.O. in the house – cause of death in is completely doubtful – Vague statement made by the appellants during their 313 statement does not give any clue – the prosecution has not been able to prove the basic fact leading to the hypothesis of the appellants being the murders of the deceased – it is not even sure where the death has taken place in the house or hospital for the pauity of evidence – appellants given benefits of doubt – conviction and sentence set aside – appeals allowed. (Paras 23 to 32)

Ashutosh Kumar, J.—Both the appeals have been taken up together and are being disposed off by this common judgment.

2. Heard the learned counsel for the parties.

3. Both the appeals are directed against the judgment and order of conviction and sentence dated 03.04.2017 and 10.04.2017 respectively, passed in Sessions Trial No. 46 of 2016, arising out of Bhawanipur P.S. Case No. 34 of 2015, whereby the appellants have been convicted under Sections 302/34 and Sections 201/34 of the I.P.C. and have been sentenced to undergo life imprisonment, to pay a fine of Rs. 10,000/- and in default of payment of fine, to further suffer imprisonment for one year for the offence under Sections 302/34 of the I.P.C. and to undergo R.I. for seven year, to pay a fine of Rs. 5,000/- and in default of payment of fine, to further suffer imprisonment for a period of six months for the offence under Sections 201/34 of the I.P.C. The sentences, however, have been ordered to run concurrently.

4. The appellant/Md. Imtiyaz Alam (in Cr. Appeal (DB) No. 1175 of 2017) is the husband of the deceased, whereas the appellants/Md. Ramjan and Md. Zubair Alam (in Cr. Appeal (DB) No. 515 of 2017) are the father-in-law and the brother-in-law of the deceased respectively.

5. The deceased/Shaheen Parween is alleged to have been strangulated at the hands of the appellants and others. The dead-body of the deceased was put to post-mortem examination on 10.02.2015, when Dr. Vimal Kumar (P.W.-3) found rigor mortis present in all the four limbs. He found a faint and irregular serculatee ligature around the mid portion of the neck which was only half inch wide. On dissection of the neck, an underneath ligature was also found. There were no marks of violence on any part of the body. The P.W.-3 was of the opinion that the death was caused by strangulation. The time of death was placed sometimes between 6 to 36 hours from the death to the post-mortem examination. P.W.-3 also did not find any finger print on the entire body including the neck portion.

6. The time of death, according to the records, is not known. The F.I.R. was lodged by the father of the deceased, who has been examined as P.W.-5. He has alleged that on 09.02.2015, at about 6:00 P.M., his son/Md. Munna @ Salim/P.W.-4 informed him that the deceased has been killed by her in-laws. The deceased was the youngest of the daughters of P.W.-5. In the F.I.R., he has also stated that about six months ago, the deceased had eloped with the appellant/Md. Imtiyaz Alam, whereafter the appellant had married her. Since she was not of the age of marriage, a case of kidnapping was registered at his instance against the appellant. Ever since then, the relationship between the family of the informant/P.W.-5 and of the appellants was disturbed. The appellant/Md. Imtiyaz Alam had a family from his earlier marriage. In the case lodged by P.W.-5, the appellant/Md. Imtiyaz Alam as well as the deceased were apprehended and later, when the deceased was released in favour of the appellant/Md. Imtiyaz Alam, she started residing with him in the family home along with his older wife and children. The informant/P.W.- 5, therefore, suspected that the appellants and others have killed the deceased by strangulating her.

7. On the basis of the afore-noted statement given by P.W.-5, Bhawanipur P.S. Case No. 34 of 2015 dated 09.02.2015 was registered for investigation for the offences punishable under Sections 302 and 120(B) of the I.P.C.

8. The police, after investigation, submitted charge-sheet against the appellants, whereupon cognizance was taken and the case was committed to the Trial Court.

9. The Trial Court, after examining nine witnesses on behalf of the prosecution, convicted and sentenced the appellants as aforesaid.

10. It may be necessary to state that the other family members of the appellants were subjected to a separate trial and against one of them, final report false was submitted.

11. Mr. Vikramdeo Singh, the learned counsel for the appellants,

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