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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and SHAILENDRA SINGH, JJ.
Criminal Appeal (DB) No.461 of 2017
(23.6.2023)
Md. Salim ... Appellant
vs.
State of Bihar ... Respondent
Indian Penal Code, 1860 – Sections 302/201 – Murder Delay in lodging FIR – it is not expected of a father or a near relative of a young girl, recently married, not to lodge the FIR immediately or her going missing – there is an unreasonable delay in lodging the FIR, Waiting till the dead body was recovered – similarly, if the appeallant really had murdered the deceased, he would not have been avaliable in his house for all this while without making any preparations of creating his defence. (Para 15)
Indian Penal Code, 1860 – Sections 302/201 – Murder – dead body recovered on the alleged confession of the appellant from under a water-body – the statement regarding the deceased having been caught with the appellant some 12 – 13 months prior to the occurrence and that they married to each other on the asking of the panchayat, was never told to the IO (PW 10) during the course of investigation – his story was only worked up later – the appellant, when he came to the Police Station to get the case lodged for his wife (the victim) having gone missing, he was arrested and kept in the police lockup and a confession was recorded after five days – water body in which the dead body was concealed is frequented by fisherman of the village for fishing – if the deceased was murdered in the night when she came out of her house, it appears to be rather unusual that the dead body would not have been spotted by those fisherman – blood was still tickling down the nostrils and rigor mortis was found on all four limbs – the timing suggested by the Doctor does not fit in the scheme of the prosecution that the deceased was murdered sometimes in the night of 09.01.2015 – it is strange that the blood from the nostrils was still not wiped out after the dead body remained under water for about five days – no evidence found by the Doctor (PW6) of the dead body remaining submerged under water, which creates a big doubt in story time propounded by the prosecution – no evidence of honour – killing of the deceased by her family members – as per prosecution, deceased never complained of ill-treatment by the appellant – no positive rational found for assuming that because it was a forced marriage, the appellant wanted to do away with the life of the deceased – appellant given benefit of doubt conviction and sentence set aside – appeal allowed. (Paras 13 to 37)
Ashutosh Kumar, J.—Heard Mr. Saghir Ahmad for the appellant and Mr. Abhimanyu Sharma for the State.
2. This appeal is directed against the judgment of conviction dated 27.02.2017 and order of sentence dated 04.03.2017 passed by the learned Additional Sessions Judge -I, Purnea in S. Tr. No. 485 of 2015 (CIS No. 447 of 2015, Tr. No. 08 of 2017), arising out of Baisi P.S. Case No. 17 of 2015, whereby and whereunder the sole appellant/Md. Salim has been convicted for the offences under Sections 302 and 201 of the I.P.C. and has been sentenced to undergo rigorous imprisonment for life, 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 Section 302 of the I.P.C. and rigorous imprisonment for seven years, 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 Section 201 of the I.P.C. The sentences have been ordered to run concurrently.
3. The appellant has been charged of murdering Bijalo @ Najneen with whom he was made to marry about six months ago on the dictates of the local panchayat. The further charge against the appellant is of having entering into a conspiracy with two others in executing the murder and concealing the dead body for screening the offence. The two other persons who were put on trial along with the appellant were, for the paucity of any evidence of their conspiracy and participation, acquitted by the Trial Court.
4. The appellant was charge-sheeted, whereafter cognizance was taken and the case was committed to the Court of Sessions for trial.
5. The Trial Court, after having examined eleven witnesses on behalf of the prosecution and none on behalf of the defense, convicted and sentenced the appellant as aforesaid.
6. The father of the deceased, namely, Md. Tabrez (P.W. 5) had initially lodged an F.I.R. on 31.01.2015 against unknown for the offence under Section 363 of I.P.C. as the deceased had gone missing from his house. In his F.I.R., he has stated that his daughter Bijalo @ Najneen, aged about 18 years, who was married to the appellant about six months ago, had come to stay with him about two days before her going missing. In the night of 29.01.2015, the appellant had called on the mobile telephone of his sister-in-law, viz., Nahida Praveen (P.W. 1), which was picked up by his daughter, who while talking on telephone, went out of the house. The deceased kept on talking on the telephone for a long time. P.W. 5, thereafter, slept but was informed in the morning by P.W. 1 that the deceased is not to be found in the house. A frantic search was made for her in the neighbourhood as also in the house of the appellant, who incidentally resided only at a short distance from the house of P.W. 5, but no trace could be found. Thus, on 30.01.2015, the afore-noted report was lodged regarding the deceased having gone missing, but the accusation was levelled against none. After about five days of the report, the appellant was arrested, who made a confession before the police admitting his guilt and on his pointing, the dead body was recovered from under a water-body and the mobile telephone of P.W. 1 was also found destroyed and hidden under hay-stack of a neighbour.
7. The appellant has urged that there is no evidence against him except for the fact that he had married the deceased about six months ago under duress and coercion of the local panchayat and the so-called confession by him, which is not admissible in the eyes of law. The appellant claims to have been kept in police lockup for about three days, whereafter the confession was extracted from him, pursuant to which it has been shown in the records that the dead body was recovered. Sans the aforesaid confession and the so-called recovery, there is no connecting chain of evidence of anybody either have seen the deceased in the company of the appellant or any evidence under Section 10 of the Evidence Act to
The standard of proof for convicting a person of murder requires complete and conclusive evidence, and the prosecution must establish that the deceased 'must have' been killed by the accused.
The benefit of doubt must be given when the identification of crucial evidence is doubtful and key witnesses are not examined, as it affects the burden of proof.
The judgment underscores the necessity for conclusive evidence in criminal cases, particularly in charges involving serious offenses like murder and sexual assault, and the importance of correctly es....
Familial relationships do not inherently discredit witness testimony; credible evidence can uphold a conviction despite investigative shortcomings.
The judgment emphasizes the importance of credible evidence and the burden of proof on the prosecution in criminal cases.
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