Patna High Court
Bibi Mansuri vs The State Of Bihar on 7 July, 2026
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.4869 of 2023
Arising Out of PS. Case No.-17 Year-2017 Thana- INDUSTRIAL District- Bhagalpur
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1. Bibi Mansuri, W/O Md. Sainul, R/o Village- Fatehpur, P.S.- Zeromile, Dist.
Bhagalpur
2. Bibi Sahida @ Bibi Rashida, W/O Md. Afroz, R/o Village- Uustu, P.S.-
Lodipur, Dist. Bhagalpur
3. Md. Afroj, S/O Md. Doman, R/o Village- Uustu, P.S.- Lodipur, Dist.
Bhagalpur
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant : Mr. Ajay Kumar Thakur, Adv.
Mr. Md. Imteyaz Ahmad, Adv.
Mr. Pranshu, Adv.
Mr. Purushottam Kumar, Adv.
For the State : Mr. A.M.P. Mehta, APP
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CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 07-07-2026
Heard Mr. Ajay Kumar Thakur, learned counsel for
the appellants and Mr. A.M.P. Mehta, learned APP for the State.
2. The instant appeal has been preferred against the
judgment of conviction dated 16.08.2023 and the consequent
order of sentence dated 26.08.2023 passed by the learned
Additional Sessions Judge-XI, Bhagalpur, in Sessions Trial Case
No. 931 of 2018 arising out of Industrial Area P.S. Case No. 17
of 2017, whereby and whereunder the appellants have been
convicted for the offence punishable under Section 304(B) read
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with Section 34 of the Indian Penal Code (in short, 'IPC'). The
appellants have been sentenced to undergo ten years of rigorous
imprisonment for the offence under section 304(B) read with
Section 34 of the IPC.
Prosecution story :-
3. The prosecution case, in brief, is that the
informant, namely Bibi Sultana (victim), recorded her own
fardbayan at Jawahar Lal Nehru Medical College Hospital,
Mayaganj, Bhagalpur, on 15.02.2017 at 6:00 P.M, alleging, inter
alia, that on 15.02.2017 at about 11:00 A.M., she was preparing
food at her in-laws' house. In the meantime, her mother-in-law,
Bibi Mansoori, her sister-in-law (Nanad), Bibi Sahida, and her
sister-in-law's husband (Nandosi), Md. Afroz, all poured
kerosene oil on her body. After that on the instigation of her
mother-in-law, Bibi Mansoori, her Nanad and Nandosi lit a
matchstick and set her body on fire. After seeing her in burning
condition, they all ran away from the house. Upon hearing her
screams, her husband, Md. Khursid and the nearby neighbours
came running and together extinguished the fire. Thereafter, the
villagers informed her father through mobile phone about her
burning and also the fact that she was being taken to Mayaganj
Hospital for treatment. It is further stated by her that her
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husband, with the help of the villagers, brought her to Mayaganj
Hospital for treatment and got her admitted on 15.02.2017 at
about 2:30 P.M.
4. The informant recorded her fardbayan on
15.02.2017
at about 06:00 P.M. to the Sub Inspector Basudev
Yadav of Barari Police Station at Jawahar Lal Nehru Medical
College Hospital, Mayaganj, Bhagalpur, and detailed the above-
mentioned incident. Upon that basis, a formal FIR bearing
Industrial Area P.S. Case No. 17 of 2017 was registered for the
offences punishable under Sections 498(A), 307 and 120(B)
read with Section 34 of the IPC, thereby setting the criminal law
in motion. Later on vide order dated 10.08.2017, Section 304(B)
of the IPC was added to the FIR.
5. After completion of the investigation, the
appellants were charge-sheeted for the offences punishable
under Sections 498(A), 307, 120(B)/34 & 304(B) of the IPC.
6. After cognizance of the alleged offences, the
learned Magistrate committed the case of the appellants to the
Court of Sessions, Bhagalpur, for trial. The appellants stood
charged for the offences under Sections 498(A), 304(B)/34 &
120(B) of the IPC. The said charges were read over and
explained in Hindi to the appellants by the trial court, to which
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they pleaded not guilty and claimed to be tried.
7. During the trial, the prosecution examined
altogether seven witnesses who are as under :-
Rank Name Nature of Evidence
PW-1 Md. Azam Father of the victim
PW-2 Bibi Tasrum A relative of the deceased and hearsay
witness
PW-3 Mustakim Hearsay witness
PW-4 Mahesh Paswan 1st Investigating Officer of the case
PW-5 Uma Shankar Prasad 2nd Investigating Officer of the case
PW-6 Dr. Kamal Kishor Rai Doctor who conducted postmortem
examination and prepared the postmortem
report
PW-7 Md. Gulam Witness to the seizure list
8. In addition to the above mentioned ocular
evidence, the prosecution proved and exhibited the following
documents in documentary evidence :-
Sl. Exhibit Description Proved
No No. by/Attested
by
1. Ext-1 Signature and handwriting of one Basudev Yadav Sub-
on fardbayan Inspector
2. Ext-2 Signature on Formal FIR PW-4
3. Ext-3 Handwriting and Signature on Chargesheet PW-5
4. Ext-4 Signature of I.O. upon the seizure list PW-4
5. Ext-4/1 Signature of a witness on the seizure list PW-7
6. Ext-5 Postmortem report PW-6
7. Ext-P6 Photocopy of Malkhana Register PW-4
9. In addition to the above mentioned ocular and
documentary evidence, the prosecution also produced and
exhibited one material object which is as under :-
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1. M.O.-1 Burnt piece of a quilt
10. After the completion of the prosecution
evidence, the statements of the appellants were recorded under
Section 313 of the Code of Criminal Procedure (in short,
‘Cr.P.C.’) by the trial court. The appellants denied the material
circumstances appearing against them from the prosecution
evidences and submitted that the case was falsely registered
against them and they further stated that they had not set the
deceased on fire and pleaded themselves to be innocent.
11. During the trial, the appellants examined one
defence witness who is as under :-
Sl. No. Name Nature of Evidence
DW-1 Md. Khurshid Defence witness
12. In addition to the above mentioned ocular
defence evidence, the appellants produced and exhibited the
following documents in documentary evidence :
Sl. No. Exhibit No. Description
1. D-1 CD
2. D-2 Pen Drive
13. While convicting the appellants for the charged
offence under section 304B read with section 34 of the IPC, the
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learned trial court mainly placed reliance upon the exhibit-1,
which is stated and claimed to be the fardbayan of the deceased
recorded by her at hospital, treating it as her dying declaration.
Submissions on behalf of the appellants :-
14. Learned counsel for the appellants has vehemently
argued that the said approach of the trial court in treating
Exhibit-1 as the dying declaration of the deceased is completely
erroneous, as the same could not have been proved by the
prosecution. Further, in view of the evidence of PW-6, the death
of the deceased must have taken place before 16.02.2017,
whereas, as per the evidence of the prosecution witnesses, it
came to light that after recording the said fardbayan on
15.02.2017, the deceased remained under treatment for some
days at Patna. Thus, the medical evidence in itself seriously
contradicts the time and date of the death of the deceased, which
is also a reason to suspect that Exhibit-1 was the deceased’s own
statement.
Submission on behalf of the State :
15. On the other hand, learned APP appearing for the
State, in response to the above arguments, submits that the
deceased’s fardbayan was proved by PW-2, who was present at
the hospital when the deceased recorded her fardbayan and
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Consideration and Analysis:
16. I have heard both sides and perused the impugned
judgment and the evidence adduced by both the sides before the
trial court, including the statements of the appellants recorded
under Section 313 of the Cr.P.C.
17. After going through Exhibit-1 and taking note of
the other evidences, this Court finds substance in the
contentions advanced by the appellants’ counsel. The fardbayan
of the deceased, Exhibit-1, is said to have been written by one
Sub-Inspector, Basudev Yadav, who was not examined by the
prosecution. If a person, after making a statement giving the
details of the cause of his or her death, subsequently dies, then
such statement, if made orally, can be proved by the person who
heard it from the mouth of the deceased. If the statement is
made in writing, it can be proved by proving the written
material containing the details of the said statement. In the
present matter, according to the prosecution, the deceased made
her statement orally, which was recorded by the police official,
Basudev Yadav and reduced into writing by him. In such a
situation, the prosecution had two options to prove it: first, by
examining the person who recorded it; or secondly, by proving
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Exhibit-1 through the said police officer. However, neither
course was adopted in the present matter. Though, as per
Exhibit-1, one lady, namely, Bibi Tasrum (PW-2), affixed her
thumb impression on it and is said to have been present at the
hospital with the deceased when the latter recorded her
fardbayan, so the evidence of Bibi Tasrum is also material and
might have been important for the prosecution to prove the
deceased’s alleged fardbayan. Hence, I now examine the
evidence of Bibi Tasrum (PW-2).
18. After going through the evidence of Bibi Tasrum
(PW-2), I find that in her entire examination-in-chief, she did
not say anything about the recording of the fardbayan by the
deceased before the police in her presence. Though she claimed
herself to have been present at Mayaganj Hospital, she said
nothing about the recording of the said fardbayan by the
deceased. Thus, the trial court wrongly placed reliance upon
Exhibit-1 by treating it as the dying declaration of the deceased,
as the same remained not proved. Further, regarding the mental
condition of the deceased to give complete details of the
incident to the police officer, there is no medical evidence
pertaining to her mental state at the time when she is said to
have recorded her fardbayan before the police. It is an admitted
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position that the deceased had sustained approximately 65%
burn injuries. Therefore, in such a situation, the prosecution was
bound to prove that the deceased was in a fit mental condition to
record her fardbayan giving the details of the incident. However,
the said burden was not discharged by the prosecution. The best
evidence in this regard would have been that of the doctor
concerned who treated the deceased at Mayaganj Hospital, but
he was neither produced nor examined.
19. Now, I come to the contradiction regarding the day
and time of the death of the deceased as opined by the medical
expert (PW-6) in the post-mortem report. PW-6, who proved the
post-mortem report of the deceased as Exhibit-5, deposed in
paragraph No. 5 of his examination-in-chief that the deceased
had died five days prior to the post-mortem examination. The
post-mortem examination was conducted on 21.02.2017 at 9:00
A.M. Therefore, if the opinion of PW-6 regarding the time of
death is taken into account, the deceased must have died before
16.02.2017. However, as per the evidence of PWs-1, 2 and 3,
after receiving initial treatment at Mayaganj Hospital, the
deceased was referred to Patna, where she remained under
treatment. PW-3 stated in his examination-in-chief that the
deceased died at Patna six days after being referred there from
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Mayaganj Hospital. Thus, a serious contradiction appears
between the ocular evidence of the prosecution witnesses and
the opinion of the medical expert with regard to the date of the
death of the deceased, which creates a serious dent in the
prosecution’s case. The same was not properly appreciated by
the trial court.
20. As per the prosecution story appearing from the
FIR, which is based on Exhibit-1, at the time of the alleged
occurrence, the victim was cooking food when the appellants
came and poured kerosene oil on her and on the instigation of
appellant no. 1, appellant nos. 2 and 3 lit a matchstick and set
the victim (deceased) on fire. If this part of the prosecution story
is believed, then cooking utensils and signs of kerosene oil
ought to have been present at the place of occurrence. However,
according to the evidence of the Investigating Officer, no such
signs were found when he inspected the place of occurrence.
The first Investigating Officer (PW-4) stated in his cross-
examination that he did not find any utensils at the place of
occurrence. Though he described the place of occurrence in his
examination-in-chief, he did not mention any smell of kerosene
oil or any signs of kerosene oil. Rather, he stated that he found a
burnt quilt, which indicates that the alleged incident relating to
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the burning of the deceased occurred in a manner different from
that claimed and alleged in Exhibit-1.
21. Now, I come to Section 304B of the IPC under
which the appellants have been convicted. For attracting this
penal provision, the prosecution is required to prove mainly
three essential conditions. First, that the victim died within
seven years of her marriage. Secondly she died either due to
bodily or burn injuries or otherwise than normal circumstances
within seven years of her marriage. Thirdly soon before her
death she had been subjected to cruelty or harassment by her
husband or any relative of her husband in connection with the
demand for dowry. Though, in the present matter, the first two
conditions appear to have been established but so far as the third
condition is concerned, I am of the considered opinion that the
prosecution failed to prove the same beyond reasonable doubt.
In the fardbayan, the deceased said nothing about any demand
for dowry by the accused appellants. She also did not state
therein that the accused/appellants committed the alleged
occurrence on account of the non-fulfilment of any demand for
dowry. During the trial, though, the father of the deceased (PW-
1) stated that the accused persons had been demanding a
refrigerator, a motorcycle and money from the deceased since
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demands. However, this statement is completely vague, as PW-1
did not disclose the names of the accused persons who allegedly
made such demands. Further, there are no details regarding the
occasion or the time when such demands were made. Hence,
with regard to the identity of the particular accused who made
the said demand, the occasion and the date on which such
alleged demands were made, the statement of PW-1 in his
examination-in-chief remains completely vague.
22. PW-2, who happens to be a relative of the
deceased, stated in her examination-in-chief that the accused
persons (the deceased’s husband and father-in-law) had been
torturing the deceased for the demand of a refrigerator and a
motorcycle and that the said demands could not be fulfilled. In
her cross-examination, she stated that she had not disclosed
anything before the police regarding this alleged demand. Thus,
this witness improved her version before the trial court. Further,
as stated by her in her cross-examination, her statement was
recorded by the police one month after the alleged occurrence.
Moreover, her statement in the examination-in-chief regarding
the alleged demand for a refrigerator and a motorcycle by the
deceased’s husband and father-in-law remains completely vague.
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Thus, prosecution evidence is not sufficient to establish and
prove beyond reasonable doubt that the appellants had been
torturing the deceased for the alleged demand of fridge,
motorcycle and money since the time of her marriage and
caused her burn injuries or subjected her to cruelty soon before
her death, hence, the prosecution is not entitled to get any
benefit from the provisions of Section 113B of the Evidence Act
for drawing the presumption against the appellants that they
committed dowry death.
Conclusion:
23. For the reasons discussed above, this Court is not
persuaded to form the opinion that the prosecution succeeded in
proving the third mandatory condition of Section 304B of the
IPC. As such, the prosecution is not entitled to get the benefit
under Section 113B of the Evidence Act. From the very
beginning, the burden of proving the charged offence remained
upon the prosecution and the same was not discharged. The
evidence adduced by the prosecution does not inspire the
confidence of this Court to affirm the conviction of the
appellants for the charged offence under Section 304B of the
IPC. Hence, the appellants are entitled to get the benefit of
doubt.
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24. Accordingly, the judgment impugned
convicting the appellants for the charged offence punishable
under section 304B of the IPC and the consequent order of
sentence passed by the learned Additional Sessions Judge-XI,
Bhagalpur, in Sessions Trial No. 931 of 2018 arising out of
Industrial Area P.S. Case No. 17 of 2017, are hereby set aside.
25. In the result, the instant appeal stands allowed.
26. The appellants are in judicial custody, so, they
are directed to be released forthwith if their custody is not
required in any other case.
27. Let the records of the trial court, along with a
copy of this judgment, be transmitted forthwith to the trial court
for needful and necessary compliance.
(Shailendra Singh, J)
annu/-
AFR/NAFR AFR CAV DATE NA Uploading Date 13.07.2026 Transmission Date 13.07.2026
