Life sentence in Jamui child killing set aside: saree never seized, no stone found, four-question Section 313
A division bench of Justices Mohit Kumar Shah and Sourendra Pandey acquitted a widow convicted of murdering a schoolboy in her marital family, finding the last-seen account changed with every telling, the bloodstained saree was never seized, no weapon was recovered, and the trial court put none of the incriminating circumstances to her.
A woman from Manjhwe village in Jamui, sentenced in 2019 to life imprisonment for killing a schoolboy in her marital family, has been acquitted by the Patna High Court. The prosecution said she was last seen with the boy before his body was found by a pond, and that she was seen in a bloodstained saree that afternoon. But the saree was never seized, no stone or weapon was ever recovered, the investigating officer admitted that beyond suspicion there was no evidence, and when the trial court examined her under Section 313 of the Code of Criminal Procedure it asked four questions, none of which put a single incriminating circumstance to her. A division bench of Justices Mohit Kumar Shah and Sourendra Pandey held that suspicion, however strong, cannot stand in for proof.
A boy missing from school, a body by the pond
The case began with the fardbeyan of Hamid Khan, the boy’s grandfather, recorded by Sub-Inspector Sanjay Kumar Singh of Jamui police station at 7.45 a.m. on 27 June 2014. He said that at about 11 a.m. the previous day he had come home and started looking for his grandson, Firoz Khan, and was told by his daughter-in-law that the boy had not returned from school. The family began searching. At about noon his elder daughter-in-law, the appellant Nasima Khatoon, widow of his late son Mustakin Mian, told him that Firoz had been following her but that she had sent him back. The grandfather said he noticed bloodstains on her clothes and that she immediately bathed and washed them. The search went on until late evening without result. The next morning the family learnt that the boy’s body was lying near the Teriyahi puddle, with injuries to the head and face. The grandfather named Nasima Khatoon and his son-in-law Irshad as the people he suspected.
Jamui P.S. Case No. 166 of 2014 was registered under Sections 302 and 34 of the Indian Penal Code against both. The investigating officer, Bidya Nath Prasad, filed Charge-Sheet No. 118 of 2014 on 20 September 2014 under Sections 302 and 201 against Nasima Khatoon alone. The magistrate took cognizance the same day, the case was committed to the Sessions Court on 5 November 2014 and numbered Sessions Trial No. 295 of 2014, and she pleaded not guilty.
On 4 September 2019 the Additional District and Sessions Judge-III, Jamui convicted her of murder and of causing disappearance of evidence. The next day he sentenced her to rigorous imprisonment for life under Section 302 with a fine of Rs 10,000, six months more in default, and seven years’ rigorous imprisonment under Section 201 with a fine of Rs 5,000, three months in default, the sentences to run concurrently. She appealed under Section 374(2) of the Code.
Seven witnesses, three exhibits, one missing report
The prosecution called seven witnesses and marked three exhibits: the fardbeyan, the formal FIR and the post-mortem report. The post-mortem report, Exhibit 3, was not found in the trial court’s records. The inquest report, which the investigating officer said he had prepared, was not on the record either.
Madan Yadav (PW1), a co-villager, said he had seen the appellant with the boy between 10 and 11 a.m. while he was at his house; he admittedly saw no incident. Md. Jabbar Ahmed (PW4), another villager, said he saw her going along with the boy as he was leaving for Lakhisarai that day, and learnt of the body only when he returned the next morning. The boy’s mother, Isharat Khatoon (PW5), said she saw the appellant in a bloodstained saree with blood on her face, and that at the pond she saw her son lying dead wearing only his pants, with a stone on his back. In cross-examination she said the appellant and her son-in-law had been at the door of the house, had offered the boy dates and taken him with them; she had not seen the occurrence, the appellant was at home when the police arrested her, and the police had taken the appellant’s clothes but not her son’s.
The grandfather (PW2) said Madan Yadav and Jabbar Ahmed had told him they saw the appellant with the boy, that her bloodstained saree was taken from her and handed to the police, and that two stones were also seized. In cross-examination he said he had not witnessed the crime, had been living separately from the appellant for six years, and, in paragraph 6, that the police had recorded neither his fardbeyan nor any statement from him. In paragraph 7 he said he saw the appellant in the saree at about 6 p.m. but did not go to the police station. He had been at the pond from 10 to 11 a.m., the police arrived at about 11, and they took him to the police station at about 12.30 p.m.
The boy’s sister (PW3), aged 11, said the appellant took her brother away and gave different answers when asked about him. In cross-examination she went further and said she had seen the occurrence and that the appellant killed her brother. She also said she was giving her statement for the first time, that her grandfather’s property would come to her, and that the police had not been told earlier. No question had been put to her by the trial court to test whether she was competent to testify.
The investigating officer (PW6) proved the fardbeyan and the FIR and described the pond as surrounded by land on all sides. In cross-examination he said the murder was committed with a stone, but accepted that there was no sign of violence at the spot and that no stone was recovered. In paragraph 10 he said no witness during the investigation had claimed to see the appellant kill the boy; in paragraph 11, that he had not recovered the appellant’s clothes; and in paragraph 12, that he had not verified the reasons for the dispute between the informant and the appellant. Apart from suspicion, he said, there was no evidence of murder.
Dr Bhim Ram (PW7), who conducted the post-mortem, recorded a right hand missing from the wrist, multiple fractures of the nasal bone, a lacerated wound on the scalp, a lacerated wound on the left arm, the muscles of the right arm and forearm absent with bone exposed, and the right pectoral muscles absent. He gave the cause of death as haemorrhage and shock from injuries caused by a hard and blunt substance. In cross-examination he admitted he had not had the nose X-rayed, and that if an animal ate the fist of a dead body the hand would be severed.
What the two sides argued
Satya Prakash Parasar, with Ashish Kumar and Ayushi, argued for the appellant that the prosecution had failed to prove either charge beyond reasonable doubt. The last-seen theory, he said, was not established because the witnesses had improved on their accounts at every stage from the fardbeyan to the trial. He questioned whether the fardbeyan, recorded at 7.45 a.m. on 27 June 2014, was an information under Section 154 of the Code at all, rather than a statement under Section 162. The grandfather had testified that the boy bit the appellant and that the police saw the bite, yet she was never produced for medical examination under Section 53. The saree said to be bloodstained was never seized or sent for forensic examination, which attracted the adverse presumption under illustration (g) to Section 114 of the Evidence Act. He submitted that the Section 313 examination did not meet the statutory requirement: the three incriminating circumstances, last seen, the family dispute and the washing of bloodstained clothes, were never put to her specifically, distinctly and separately. He relied on Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622.
Sujeet Kumar Singh, Additional Public Prosecutor, accepted that the case rested on circumstantial evidence but said PW1, PW3, PW4 and PW5 had all seen the boy with the appellant shortly before his death: PW3 and PW5 saw her take him from the house, PW1 and PW4 saw her taking him towards the pond. Differences in timing, he said, were not fatal. The motive was admitted: a dispute over the share of the appellant’s late husband. Having been last seen with the boy, she bore the burden of explaining, and had not. The chain was complete.
The last-seen story changed with every telling
The bench, in a judgment authored by Justice Sourendra Pandey, treated the case as one of two circumstances: last seen, and the bloodstained saree. On the first, it found the accounts did not match. The fardbeyan said the grandfather himself had seen the boy going with the appellant towards the pond. At trial he said nothing of the kind; instead he said he learnt it in the evening from Madan Yadav, Jabbar Ahmed and the boy’s sister. The fardbeyan did not name any of them, nor the boy’s mother, as having told him anything.
Jabbar Ahmed’s evidence made that worse. He said he was on his way to Lakhisarai when he saw the appellant with the boy and did not return until the next morning. He could not, therefore, have told the grandfather anything on the evening of 26 June, as the grandfather claimed. The bench said this went to the root of the prosecution case and raised the question whether Jabbar was a witness to anything at all. The mother’s account of the appellant and the son-in-law offering dates at the door and leading the boy away appeared nowhere in the fardbeyan, which cast serious doubt on it. The last-seen theory, the court held, was contradicted both as to time and as to the manner in which each witness told it.
Applying the five conditions laid down in Sharad Birdhichand Sarda, the bench held that the circumstances were not fully established. The evidence could at best show that the appellant may have been involved; the article that could have proved it, the bloodstained saree, was never collected. The investigating officer had found no mark of violence at the spot and recovered no stone. Citing Rambraksh alias Jalim v. State of Chhattisgarh, (2016) 12 SCC 251, the bench recalled that a conviction cannot rest on the accused merely having been last seen with the deceased.
Four questions in place of a Section 313 examination
The trial court recorded the appellant’s statement under Section 313 on 26 March 2019. It asked her four things: whether she had heard the evidence of the witnesses; that there was an allegation, which the witnesses had also stated, that she murdered the informant’s grandson on 26 June 2014 at 11 a.m., and what she had to say; whether she had anything to say in her defence; and whether she wanted to produce defence witnesses. She said she was innocent and would call witnesses.
The bench measured this against the principles summarised by the Supreme Court in Suresh Sahu v. State of Bihar, 2025 SCC OnLine SC 2637, drawing on Ashok v. State of Uttar Pradesh and Raj Kumar: the trial court must put each material circumstance to the accused specifically, distinctly and separately; circumstances not put must ordinarily be eschewed; the failure is a serious irregularity that vitiates the trial if it causes prejudice; and passage of time is one factor in deciding whether the defect can be cured.
The first question, the bench said, apparently referred to the whole of the evidence in general. The prosecution witnesses had been examined between 10 April 2015 and 25 July 2017, a span of two years and three months, and the Section 313 statement was recorded almost a year and eight months after the last of them. The judges imagined “the plight of a rustic lady” from a village being asked to recall all of it from the back of a courtroom, and recorded their displeasure at the way the questions were framed: it was “just humanly impossible for any person to recall and recollect” the evidence after such a gap. The second question merely repeated the allegation in the FIR. Nothing in it put to her what PW1 to PW5 had each said about seeing her with the boy. That failure, the court held, prejudiced her and denied her a fair chance to explain, and those circumstances could not be held against her.
An 11-year-old never tested for competence
Neither side had argued the point, but the bench took it up on its own. Before recording a child’s evidence, the judge must ask preliminary questions to be satisfied that the child understands the questions, can give rational answers and appreciates the importance of telling the truth; the Supreme Court said so in Pradeep v. State of Haryana, (2023) 19 SCC 221, and advised that the questions and answers be recorded so an appellate court can review the assessment. The deposition of the boy’s 11-year-old sister showed no such preliminary questions.
Scrutinising her evidence anyway, the bench found she had gone beyond the prosecution case itself, claiming to have seen the killing when no one else, including the investigating officer, suggested any eyewitness existed. The court thought the statement might have been made after tutoring by her mother and relatives, and that as a child she did not grasp the importance of speaking the truth and had exaggerated. Her evidence was left out of account.
A saree handed over that the police never took
The bench recorded what it called a material and fatal lapse. The grandfather and the mother both said the bloodstained saree was seized by the police; the investigating officer denied seizing any saree. The mother said there was a stone on the body; no stone was seized for forensic examination, and the officer said none was and that there were no marks of violence. The FIR alleged no motive; the property dispute surfaced only in evidence, and the officer admitted he never investigated it.
Two further features struck the court as unnatural. The grandfather and the mother said they saw the appellant covered in blood on the afternoon the boy went missing, yet no one went to the police that day; they waited for the body to be found. And the pond was about two kilometres from the house. A day of hectic searching by the family and the villagers had not found the body there, which raised the question whether the boy had been at that spot the previous day and night at all. The prosecution neither investigated nor asserted anything on the point. The post-mortem did record ante-mortem injuries, including the fractured nose, but with no stone or weapon seized, attributing them to the appellant rested on suspicion alone.
Weighing the whole record, the bench held that none of the five Sharad Birdhichand Sarda conditions was met. The facts did not point solely to the appellant; the possibility that the boy was killed by another villager, by schoolmates or by an animal, given that his hand had been separated from the wrist, could not be ruled out. The circumstances were not conclusive, because the last-seen account had shifted from the fardbeyan through every deposition, and the chain was incomplete. The case might shock the conscience of anyone, including the courts, the judges said, “yet suspicion however great cannot take place of proof”. The trial judge, they found, had convicted on suspicion and nothing more, erring on both facts and law.
Order
The appeal was allowed. The judgment of conviction dated 4 September 2019 and the order of sentence dated 5 September 2019 passed by the Additional District and Sessions Judge-III, Jamui in Sessions Trial No. 295 of 2014, arising out of Jamui P.S. Case No. 166 of 2014, were set aside. Nasima Khatoon was acquitted of the charges under Sections 302 and 201 of the Indian Penal Code and given the benefit of the doubt. She was already on bail and was discharged from the liability of her bail bonds. The lower court records were directed to be sent back to the trial court forthwith. The judgment was reserved on 28 July 2026 and delivered on 15 October 2026.