Patna High Court
Md. IdrishversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
Holding
The appellate court upheld the trial court’s acquittal, finding that the prosecution did not establish guilt beyond reasonable doubt.
Summary
The case arose from a 2011 incident in which the deceased, Noor Mohammad, was set on fire and later died of septicemia. The prosecution relied on the dying declaration (fardbeyan) of the deceased and several witnesses to charge Ibran, Hamid Mian, and Sharifan Bibi under Sections 326, 302, 307, 341 and 34 of the IPC. The trial court acquitted Sharifan Bibi, holding that key witnesses were not eye‑witnesses, the police officer who recorded the dying declaration and a doctor were not examined, and the prosecution failed to prove the accused’s presence at the scene beyond reasonable doubt. On appeal, the High Court examined the same evidence, noted the same deficiencies, and applied the principles governing appeals against acquittal, concluding that the trial court’s view was a permissible one on the record. Consequently, the appeal was dismissed and the acquittal upheld.
Issues considered
- Whether the prosecution proved the guilt of Sharifan Bibi beyond reasonable doubt.
- Whether the dying declaration of the deceased is admissible and sufficient as primary evidence.
- Whether the trial court erred in acquitting the accused on the basis of lack of eye‑witness testimony and non‑examination of the police officer and doctor.
Legislation cited
- Criminal Procedure Code — s. 313, 378
- Indian Penal Code — s. 302, 307, 326, 34, 341
Subjects
- acquittal
- appeal against acquittal
- dying declaration
- reasonable doubt
- evidence
- Indian Penal Code
- Criminal Procedure Code
- burden of proof
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.800 of 2024
Arising Out of PS. Case No.-556 Year-2011 Thana- SONEPUR District- Saran
======================================================
Md. Idrish, son of Md. Nizamuddin, Resident of Mohalla- Bharpura, PS-
Sonepur, District- Saran.
... ... Appellant
Versus
1. The State of Bihar
2. Sharifan Bibi, W/o Late Mubarak Hussain, Resident of Mohalla- Bharpura,
PS- Sonepur, District-Saran
... ... Respondents
======================================================
Appearance :
For the Appellant : Md. Shamimul Hoda, Advocate
Mr. Anuj Kumar, Advocate
For the State : Mr. Binod Bihari Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 25-03-2026
At the outset, learned counsel for the appellant
seeks permission to correct the name of respondent no.2 in the
cause title of the memo of appeal.
2. Learned Additional Public Prosecutor for the
State has no objection to the same.
3. Learned counsel for the appellant is permitted to
make necessary correction in the name of respondent no.2 in the
cause title.
4. Heard learned counsel for the appellant and
learned Additional Public Prosecutor for the State.
5. The present appeal arises out of the judgment of
acquittal dated 07.05.2024, passed by the learned Additional
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Judge-cum-Sessions Judge-V, Saran at Chapra (hereinafter
referred to as ‘the learned Trial Court’) in S.Tr. No. 380 of 2013,
arising out of Sonepur P.S. Case No. 556 of 2011, whereby and
whereunder the respondent no.2 has been acquitted of the
charges levelled against him under Sections 341, 307 and 302 of
Indian Penal Code (in short ‘IPC’).
Prosecution Case
6. The prosecution case is based upon the
fardbeyan of Noor Mohammad (since deceased) recorded by the
S.I. of Sonepur Police Station on 29.12.2011 at 10:30 AM at the
Railway Hospital, Sonepur, wherein it is stated that on
29.12.2011 at 08:30 AM while he was regressing to his shop
from his house and reached near the village well, he saw that
(1) Hamid Mian, (2) Ibran and (3) Sharifan Bibi (respondent no.
2) were present there. As soon as, he proceeded through well
then Hamid Mian and Sharifan Bibi caught hold of his hands
and in the meantime, Ibran who is the youngest son of Hamid
Mian, poured kerosene oil on him and lit a matchstick.
Thereafter they fled away. When he started crying, then his
elder brother Akhlak Ahmad came running and tried to save
him. In course of saving his brother, Akhlak got burn injury on
his fingers of right hand. Thereafter, Noor Mohammad was
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brought to Railway Hospital, Sonepur where his treatment was
going on. In course of treatment, Noor Mohammad died on
12.02.2012.
7. The police, after investigation, filed charge-sheet
bearing no. 156 of 2012 dated 30.04.2012 against accused (1)
Ibran and (2) Hamid Mian under Sections 326/302/34 IPC
keeping investigation pending against Sharifan Bibi. Thereafter,
a supplementary chargesheet bearing Chargesheet No. 12 of
2013 dated 31.01.2013 was filed against Sarifan Bibi
(respondent no. 2) under Sections 326/302/34 IPC.
8. On the basis of these chargesheets, learned Chief
Judicial Magistrate took cognizance against accused persons
under Sections 326, 302/34 of IPC vide order dated 25.02.2013
and 09.04.2013 respectively, whereafter the case was committed
to the court of sessions vide order dated 04.05.2013 putting the
Sharifan Bibi (respondent no. 2) on trial in Sessions Trial No.
380 of 2013. On receipt of the records, the learned trial court
framed charges against respondent no.2 under Sections 341/34,
307/34, 302/34 of the IPC vide order dated 06.12.2013. Charges
were explained to respondent no. 2 to which she pleaded not
guilty and claimed to be tried.
9. In course of trial, the prosecution examined as
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many as seven witnesses and got exhibited various documentary
evidence such as the fardbeyan of the informant, postmortem
report, charge-sheet etc. The description of the prosecution
witnesses and the list of documents exhibited on behalf of
prosecution are provided hereunder for ready reference in a
tabular form:-
List of Prosecution Witnesses
PW-1 Md. Idrish (father of deceased)
PW-2 Dr. Shailendra Kumar Singh
(Medical Officer)
PW-3 Md. Tahid (brother-in-law of
deceased)
PW-4 Akhlak Ahmed (brother of
deceased)
PW-5 Md. Naimudin, (brother-in-law
of deceased)
PW-6 Khairun Nisha (mother of
deceased)
PW-7 Tuntun Giri (tahid)
List of Exhibits on behalf of Prosecution
Exhibit ‘1’ Identification of the
signature of PW-1 on the
Inquest Report
Exhibit ‘1/a’ Identification of the
signature of the informant
on the Fardbeyan
Exhibit ‘2’ Verified copy of
postmortem
Exhibit ‘3’ Identification of the
signature of S.H.O on the
statement
Exhibit ‘3/1’ Identification of
Mrityunjay Choubey’s
handwriting and signature
on the endorsement
Exhibit ‘4’ Charge-sheet
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10. Thereafter, the statement of respondent no. 2 was
recorded under Section 313 of the CrPC. The respondent no. 2 in
her 313 CrPC statement denied the allegations and pleaded
innocence.
Findings of the Learned Trial Court
11. Learned trial court after analysing the evidences
available on the record found that the Sub-Inspector of Police, M.
Chaubey of Sonepur Police Station, who is said to have recorded
the fardbeyan of the deceased, has not been examined in this
case. Further, it is noticed that the fardbeyan of the deceased is
said to have been recorded in Sonepur Railway Hospital where
doctors were present, but the fardbeyan was not recorded in
presence of any doctor and for that reason, no doctor has been
produced in support of the prosecution case. Learned trial court
observed that it is the doctor of the hospital who could have
stated about the mental condition of the deceased at the time of
recording of the fardbeyan by the S.I. of Police. Therefore,
learned trial court held that the prosecution has not brought any
evidence on the point of the mental condition of the deceased at
the time of recording of the fardbeyan.
12. Learned trial court has, while appreciating the
evidence of PW-4, held that from his evidence, it is not clear and
no clinching material has come as regards the presence of the
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accused persons at the place of occurrence.
13. Learned trial court further found that the very
presence of PW-4 and PW-6 at the place of occurrence is not
getting fully established, hence, prosecution cannot be said to
have proved its case beyond all reasonable doubts. Accordingly,
respondent no. 2 was acquitted of the charges levelled against her
under Sections 341, 307, 302 IPC.
Submission on behalf of appellant
14. Learned counsel for the appellant while assailing
the impugned judgment of acquittal submits that the learned trial
court has committed error in acquitting respondent no. 2 without
proper appreciation of evidences available on the record.
15. Learned counsel for the appellant submits that the
dying declaration of the deceased, recorded as fardbeyan by the
police constitutes primary, substantive, and highly material
evidence in the facts and circumstances of the present case. It is
submitted that learned trial court has gravely erred in law and on
facts in failing to properly appreciate the evidentiary value of the
said dying declaration and in not placing due reliance thereupon,
thereby vitiating the impugned judgment.
16. Learned counsel further submits that the PW-4
who is an eyewitness to the occurrence, has supported the
prosecution case, minor contradictions are possible due to the
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passage of time in recording of his statement in the court during
trial, he has remained consistent throughout during cross
examination.
17. Learned counsel further submits that non-
examination of the I.O. in this case would not prove fatal to the
prosecution case as the dying declaration and the evidence on
record fully establish the prosecution's case.
18. Learned counsel further submits that the Injury of
the deceased has been fully substantiated by the medical
evidence and corroborates the version of the assault.
Submission on behalf of State
19. On the other hand, learned Additional Public
Prosecutor for the State submits that in this case, the learned trial
court has properly appreciated the entire evidences available on
the record and has rightly acquitted respondent no. 2.
Analysis and Consideration
20. Having heard learned counsel for the appellant
and learned Additional Public Prosecutor for the State as also on
perusal of the trial Court records, we find that the learned Trial
Court has rightly concluded that the prosecution cannot establish
its case on mere surmises and conjectures. The Sub-Inspector of
Police, M. Chaubey of Sonepur Police Station, who is said to
have recorded the fardbeyan of the deceased, has not been
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examined in this case. Further, it is noticed that the fardbeyan of
the deceased is said to have been recorded in Sonepur Railway
Hospital where doctors were present, but the fardbeyan was not
recorded in presence of any doctor and for that reason, no doctor
has been produced in support of the prosecution case. It is the
doctor of the hospital who could have stated about the mental
condition of the deceased at the time of recording of the
fardbeyan by the S.I. of Police. The prosecution has not brought
any other evidence on the point of the mental condition of the
deceased at the time of recording of the fardbeyan.
21. This Court has further noticed that the only eye-
witness in the case is said to be Akhlak Ahmed (PW-4), who has
also not stated about the mental condition of the deceased brother
at the time of recording of the fardbeyan.
22. This Court finds from the evidences available on
the record that the prosecution witness (PW)-1 is the father of the
deceased, who was not present at the place of occurrence. He had
arrived directly to the Sonepur Railway Hospital after hearing
about the occurrence. PW-3 has stated that he came to know
about the occurrence over telephone whereafter he reached the
hospital. PW-5 is the brother-in-law of the deceased who had
received the information over telephone. PW-7 is a formal
witness. The learned Trial Court has, therefore, rightly recorded
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that PWs-1, 3 and 5 were not present either at the place of
occurrence or at the nearby places at the time of occurrence,
therefore, they cannot be put in the category of eye- witnesses.
So far as the evidence of PW-4 (Akhlak Ahmed) is concerned, he
claims that after hearing the sought of his brother Noor
Mohammed (since deceased), he went there and found that his
brother was burning in the fire, he tried to pacify the fire in
which he burnt his one of the fingers. According to the fardbeyan
of the deceased, the accused persons had fled away after putting
the deceased at fire, PW-4 came after hearing the sounds and he
has stated that he had seen the accused Sarifan Bibi at the place
of occurrence and she was present there. The learned Trial Court
has found that this witness has stated in his cross-examination
that he reached the place of occurrence 2-3 minutes after Noor
Mohammed (deceased) had started burning, this witness had torn
off the clothes of the deceased but he could not say that by that
time anybody from the village or any other person had arrived or
not. The learned Trial Court has, while appreciating the evidence
of PW-4, held that from his evidence, it is not clear and no
clinching material has come as regards the presence of the
accused persons at the place of occurrence.
23. This Court finds on perusal of the evidence of the
mother of the deceased (PW-6) that she claims to have gone to
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the place of occurrence after hearing hulla with her son Akhlak
Ahmed (PW-4) and there she had seen that Hamid and Sarifan
(R-2) had caught hold of her son, Ibran was pouring kerosene oil
on the body of the deceased and was lighting the fire. It has come
that on seeing them the accused persons had fled away. This
witness has admitted that there is an old dispute with Hamid
Mian. In her cross-examination, PW-6 has stated that she reached
at the place of occurrence after ten minutes of hearing the hulla
and her son Akhlakh (PW-4) was accompanying her. She has
specifically stated that there was no one else, only later on
members of the family arrived two minutes after that. The Trial
Court has taken note of the statement of PW-6 in paragraph no.11
of her deposition where she has stated that there is an old land
dispute with the accused Sarifan Bibi.
24. This Court finds that the finding of the learned
Trial Court is based on the materials available on the record. The
contradiction present in the fardbeyan of the deceased and that of
the statement of the mother of the deceased (PW-6) have been
noticed by the learned Trial Court and this Court has once again
gone through the same. According to the fardbeyan, on hulla it
was only PW-4 who had arrived at the place of occurrence. PW-4
has also not given any evidence with regard to presence of his
mother (PW-6) at the place of occurrence.
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25. This Court finds on perusal of the entire materials
on the record that the deceased died after about 25 days of the
occurrence due to septicemia. There is no doubt that the burn
injuries were caused to the deceased and in that injured condition
he is said to have given the fardbeyan, therefore, it becomes
important to note that whether the deceased being in injured
condition, lying in the hospital, was in a mental state of mind to
make his fardbeyan. The fact that neither the doctor of the
hospital is a witness of the fardbeyan nor the S.I. who had
recording the fardbyan, has been examined in course of trial.
This would go against the prosecution. From the charge-sheet,
we find that one Shailender Kumar Singh, the Medical Officer of
Sadar Hospital, Chapra, has been examined in this case, who had
conducted the postmortem of the dead body of the deceased. The
prosecution is completely silent as to presence of any doctor of
the hospital at the time of recording of the fardbeyan of the
deceased.
26. In a case where the prosecution witnesses are
admittedly inimical on account of old land dispute, there is no
independent witness of the village to support the prosecution
case and the material witnesses have not been produced as also
the very presence of PW-4 and PW-6 at the place of occurrence
and at the time to occurrence is not getting fully established, in
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our considered opinion the prosecution cannot be said to have
proved it’s case beyond all reasonable doubt.
27. We find that in an appeal against acquittal, an
appellate Court need not interfere with the judgment of the Trial
Court on mere aspect unless the appellate court comes to an
irresistible conclusion that the accused who has been acquitted
by the learned Trial Court is guilty of the commission of the
offence. There are a catena of decisions of the Hon’ble Supreme
Court on this point. Reference has been made to the judgment of
Hon’ble Supreme Court in the case of H.D. Sundara and
Others Vs. State of Karnataka reported in (2023) 9 SCC 58.
Paragraph ‘8’ of H.D. Sundara (supra) is being quoted hereunder
for a ready reference:-
“8. In this appeal, we are called upon to consider the
legality and validity of the impugned judgment 1
rendered by the High Court while deciding an appeal
against acquittal under Section 378 of the Code of
Criminal Procedure, 1973 (for short “CrPC”). The
principles which govern the exercise of appellate
jurisdiction while dealing with an appeal against
acquittal under Section 378 CrPC 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;
1. Karnataka v.H.K. Mariyappa, 2010 SCC OnLine Kar 5591
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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.”
28. We find no merit in this appeal. It is dismissed,
accordingly.
29. Let a copy of this judgment along with the trial
court’s record be sent down to learned trial court.
(Rajeev Ranjan Prasad, J)
( Soni Shrivastava, J)
Harsh/ devendra
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 31.03.2026
Transmission Date 31.03.2026
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