Document Fragment View

Matching Fragments

iii) The accused Badiuzama (appellant) was intending to dispose of the dead body hurriedly by performing the last rides.

19. The learned Trial court concluded on all these three circumstances that on all these points prosecution has been able to establish the circumstances brought against the accused-appellant and all these circumstances unerringly points towards the guilt of the appellant and no others. The Trial Court rejected the contention of the defence that no reliance can be placed on the statement of the prosecution witnesses because they had not made such statement before the police under Section 161 Cr.P.C. The reasoning advanced by the learned Trial Court is that the submission would have no substance as the informant being a layman would not have thought it proper at the time of giving his fardbeyan or the statement before the Patna High Court CR. APP (DB) No.356 of 1994 dt.08-03-2018 13 police that these things carry so much importance that it should have been stated in the F.I.R. The learned Trial Court, however, held that so far as charge under Section 328 of the I.P.C. is concerned, the prosecution had not been able to establish those charges against the accused persons and hence both the accused were acquitted for the charge levelled under Section 328 of the I.P.C. The co-accused Islam was acquitted from the charge under Section 302 I.P.C.

22. Learned senior counsel further submits that the learned Trial Court has been swayed away in recording a finding based on the circumstances without considering the material contradictions in the prosecution theory. The allegation that the appellant was entangled with one Anjuman Ara which was being protested by the deceased and for that reason he used to thrash her could not be proved beyond a reasonable doubt. He reiterates that according to P.W.2 the appellant was assaulting the deceased due to non-fulfillment of demand of dowry. If this witness in her examination in chief has not made any statement regarding a relationship between the appellant and Anjuman Ara leading to the assault committed on the deceased, what has been stated by P.W.1 based on what he heard from P.W.2 also becomes doubtful. Learned senior counsel has pointed out to the deposition of P.W.1 which has been taken note of hereinabove. Learned senior counsel, therefore, submits that the informant and other prosecution witnesses never made any such statement before the I.O. and P.W.1 has accepted that he had gone to the advocate at Purnia and therefore whatever circumstances have been shown later on were just by way of an afterthought. He Patna High Court CR. APP (DB) No.356 of 1994 dt.08-03-2018 16 has also drawn our attention towards paragraph 8 of cross examination of P.W.2 who was stated that she was making statement on the advice of the oldest lawyer of Purnia and as prepared by him. Learned senior counsel further submits that the prosecution has failed to prove the charge under Section 328 of the I.P.C. Section 328 of the I.P.C. reads as under: -

23. Learned senior counsel submits that once the charge under Section 328 I.P.C. failed, there was no reason for the learned Trial Court to conclude that the appellant had committed murder of his wife Shamima Khatoon because not only the motive and genesis of the prosecution case become doubtful, even the manner of alleged occurrence has not been proved. The learned Trial Court had already rejected the deposition of P.W.5 & 6 who were claiming themselves as eye witnesses and then post mortem report did not suggest any Patna High Court CR. APP (DB) No.356 of 1994 dt.08-03-2018 17 external injury on the body of the deceased. Therefore, the entire prosecution case was liable to be held as false and concocted one falsely implicating the appellant in the present case.

27. At the end, we come to a conclusion that even if it is taken to have been proved that the appellant was not having cordial relationship with the deceased, apart from the fact that the prosecution witnesses were improving upon their case on legal advice, in absence of any evidence of assault and torture soon before the death of the deceased and on the face of the fact that both the accused including the present appellant have been acquitted from the charge under Section 328 I.P.C., in this case, there is neither any ocular evidence nor any circumstantial evidence to prove the guilt of the appellant under Section 302 of the I.P.C. beyond all reasonable doubt. Patna High Court CR. APP (DB) No.356 of 1994 dt.08-03-2018 20