Dukhu Mahto Alias Dukhan Sah v. State Of Bihar — 1999 DIGILAW 882 (PAT)

Judgment A.K.Prasad, J. 1. The sole appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life, on the charge of committing murder of his wife (Kuili Mahatain) by the impugned judgment and order dated 30th May, 1990. S.T. No. 198 of 1987, passed by Shri. G.N. Chandra, the then Sessions Judge, Dhanbad. 2. The case came to be instituted on the basis of the fardbeyan (Exhibit 3), which is, in fact, the first information report, given by Bhubaneshwar Singh, Sarpanch of Kalyanpur Gram Panchayat, before the officer-in-charge, Barawadda Police Station, on 19.5.1981 at 2.30 a.m. The main facts stated therein are as follows : On 9.5.1987, shortly after the midnight, around 12.30 a.m. Bhushan Chandra Mahto and Santosh Kumar Mahto, PWs 1 and 2 respectively, residents of village Hadiadih, came to the house of the informant (PW 8), Bhubaneshar Singh, awakened him and gave the information that some thieves have murdered the wife of appellant (Dukhu Mahto alias Dukhan Mahto) and a tragic event has occurred in the tola. On their request, the informant in the company of his younger brother and nephew went to the house of the appellant and saw the dead body of the appellants wife on a cot with wounds. The appellant, on enquiry, made by him, stated that unknown thieves entered into the house after tearing the roof and one thief mounted on the chest of this wife and attempted to rape her, while the two other thieves climbed on him. He grappled and had scuffle with the thieves and in the process, he had himself sustained cut wounds by farsa on his cheek and right leg. He or his deceased wife could not see the entry of the intruders, as they were asleep, and the appellant could know when the thieves lifted him from the verandah and put him in the room on the cot by his wife and two-three thieves killed his wife by inflicting cut wounds. After the thieves retreated, the appellant went into his shop and found that a sum of Rs. 3,800/-was missing from the box. After the thieves retreated, the appellant went into his shop and found that a sum of Rs. 3,800/-was missing from the box. Thereafter, the informant in the company of Santosh Mahto (PW 2) proceeded to village Kalyanpur on the way to the police station and conveyed Puran Mahto (PW 4), Jitu Mahto (PW 3) and Gyanchand Mahto (PW 6), father, uncle and brother of the deceased respectively, about the incident and Jitu Mahto (PW 3) accompanied the informant to the police station and gave statement (Exhibit 3), which was recorded by the police officer (PW 12). The informant suspected that some one had murdered the wife of the appellant by inflicting several wounds by sharp-weapon. The recorded first information report was sent by PW 12 to the parent police station (Govindpur), for registration of the case, he assumed investigation of the case, a formal first information report on the basis of Exhibit 3 was drawn up, the Investigating Officer held inquest over the dead body (Exhibit 6 is the carbon copy of the inquest report), sent it for postmortem examination, visited and inspected the spot, effected seizure of lathi, alleged to have been produced by the appellant wooden pastry roller (belan) and an iron baithi on the pointing out by the appellant, under seizure lists (Exhibits 5 and 5/1 respectively), he recorded statements of the witnesses, apprehended the appellant and sent him for medical examination of the injuries on his person and on completion of investigation, charge-sheet was laid in Court, against the appellant for the murder of his wife. The case was, ultimately, committed to the Court of Sessions by Mr. S.C. Jha, the then Judicial Magistrate, 1st class, Dhanbad vide order dated 10.9.1987. The main defence is of innocence and false implication. The further defence of the appellant in his statement under Section 313 of the Cr PC is that on the fateful night, he was sleeping in the verandah, while his wife (the deceased) was sleeping inside the room and when he woke up on the alarm raised by his wife, three thieves pressed his neck with lathi and when he attempted to get up, the miscreants struck his leg, which caused swelling and the thieves/mis- creants fled away and his wife did not respond his call. He came out of the house and raised alarm and narrated the entire incident to the villagers, who had assembled. He came out of the house and raised alarm and narrated the entire incident to the villagers, who had assembled. 3. The point which falls for consideration is : whether the prosecution has been able to bring home the charge under Section 302 of the Indian Penal Code to the accused (the sole appellant) beyond shadow of all reasonable doubt. 4. At the trial, the prosecution examined twelve witnesses in support of its case. Out of them, PW 6 (Gyanchand Mahto), is a tendered witness, PW 2 (Santosh Kumar Mahto) and PW 7 (Budhan Pandey) are hostile witnesses. PW 5 (Churaman Mahto) is a witness on the inquest-report. The other PWs are : PW 1 (Bhushan Chandra Mahto), PW 3 (Jitu Mahto), PW 4 (Puran Manto), PW 8 (Bhubaneshwar Singh), the informant, PW 9 (Mohan Mahto), PW 10 (Sahu Mahto), PW 11 (Dr. Rai Suddir Prasad), who held autopsy on the dead body of Kuili Mahatain, and PW 12 (Surya Narayan Das), the Investigating Officer. PWs 1, 2, 9 and 10 are on the point that when on alarm, they went to the house of the appellant in the night the appellant disclosed that some thieves have murdered his wife, and they saw her dead body with cut neck on a cot inside his house. PWs 1 and 2 have also stated that the appellant had wound on his person and he was limping and the roof of his house was torn. PWs 3 and 4 are on the point that the deceased was married to the appellant six or seven years ago and the appellant had demanded money for auto-rickshaw prior to the occurrence, which could not be fulfilled and on earlier occasions too, he had been making other demands for which he used to illtreat the deceased and this is the motive behind the murder of the deceased by the appellant. 5. The defence, on the other hand, examined one witness, namely, DW 1 (Dr. M.B. Jha), who proved the injuries sustained by the appellant in the night of the occurrence. Exhibit B is the report of his medical examination in the pen of PW 1, Exhibit A is the requisition in the pen of PW 12 for his medical examination. 6. The defence, on the other hand, examined one witness, namely, DW 1 (Dr. M.B. Jha), who proved the injuries sustained by the appellant in the night of the occurrence. Exhibit B is the report of his medical examination in the pen of PW 1, Exhibit A is the requisition in the pen of PW 12 for his medical examination. 6. On consideration of the evidence on record, the trial Court came to conclusion that there was circumstantial evidence which unerringly pointed towards the guilt of the accused-appellant and his defence was false and, ultimately, held him guilty of the charge under Section 302 of the Indian Penal Code, and convicted and sentenced him, as stated above. 7. The case rests on circumstantial evidence. It is well settled that the circumstances relied on must be cogently and firmly established, they should form or complete chain of definite tendency, unerringly pointing towards the guilt of the accused and should be inconsistent with his innocence. Keeping this principle in mind, one may proceed to discuss and analyse the circumstantial evidence, which have been brought on record against the appellant. 8. It is not in dispute that the appellant was married to the deceased six seven years prior to the occurrence, PWs 3 and 4 have testified to this effect. The deceased admittedly met with homicidal death in the house of the appellant. It has come in the evidence of PW 1 (Bhushan Chandra Mahto), an agnate of the appellant, that on the fateful night the parents of the appellant were not at their home and they had gone to Tartand village to attend the marriage function. The appellant and the deceased were alone in the house on that night. Mr. M.M. Banerjee, learned Counsel for the appellant, fairly submitted that this fact is not disputed. At this juncture, one may come to the medical evidence regarding the death of the deceased. 9. PW 11 (Dr. Rai Sudhir Prasad) has stated that on 19.5.1987 at 12 noon, he held post-mortem examination on the dead body of Kuili Mahatain and he found the following ante-mortem wounds on her persons : "(i) Incised wound 5" x 3" x vertebra deep on middle portion of front of neck. The margins were not so clean-out. Windpipe, gullet, major blood vessels were found to severed through and fifth cervical vertebra was cut half inch deep. The margins were not so clean-out. Windpipe, gullet, major blood vessels were found to severed through and fifth cervical vertebra was cut half inch deep. (ii) Incised wound intermingled with the above wound but cutting fourth cervical vertebra half inch deep. (iii) Incised wounds measuring 1-1/2" x 1/2" x 1/2" and 3/4" x 1/3" x 1/2" on upper portion of left side wall of neck and just under the chin. (iv) Incised wounds 1" x 1/3" skin deep on right chick bone area and 3/4" x 1 /3" x skin deep just above the right end of the lower jaw bone. (v) Incised wound 1" x 1/10" x skin deep on inner surface of left thumb." According to him, the death occurred due to homicidal cut throat injury caused by heavy and cutting weapon having no so sharp edge and the wounds were sufficient to cause death in ordinary course of nature. He has further opined that the time elapsed since death was approximately 12 hours of the post-mortem examination. He has clarified to a Court question that he did not find any sign of rape. The medical evidence reveals that the deceased had suffered the wounds in the mid-night or shortly thereafter and in lying posture. However, it may be stated that it is clear from the medical evidence that the deceased did not commit suicide. The medical evidence would be adverted to at the appropriate stage. 10. As noticed above, the case is based on circumstantial evidence. Hence, it has to be examined whether there is evidence on record to suggest that the appellant had the motive to murder the deceased. PW 4 (Puran Mahto), father of the deceased, has stated that the appellant often harassed the deceased (his daughter) for money/articles, demanded by him, and once he had given a bullock after purchasing it to him and 10-15 days prior to the occurrence, he had demanded money to purchase an autorisksaw, which he could not fulfil and the appellant used to assault the deceased. It is true that in his cross-examination, PW 4 has deposed that he did not complain to any one that the appellant used to demand money and used to beat the deceased. It is also true that he admits in his cross-examination that he did not state before the police that the appellant had demanded money for an auto-rickshaw. It is true that in his cross-examination, PW 4 has deposed that he did not complain to any one that the appellant used to demand money and used to beat the deceased. It is also true that he admits in his cross-examination that he did not state before the police that the appellant had demanded money for an auto-rickshaw. A parent with village back-ground often refrains to complain to others against his son-in-law about the ill-treatment meted out to his/her daughter for the future sake of his/her daughter. The Investigating Officer (PW 12) was not questioned by the defence, whether PW 4 had stated before him regarding the demand of auto-rickshaw, made by the appellant. The examination of the case diary reveals that PW 4 had made such allegation in his statement before the police. When there was no inconsistency on the point in his evidence vis-a-vis the statement before the police, it was not permissible to draw his attention to such previous statement. It may be that under the stress of cross-examination of lapse of memory, such statement was made by the PW 4 on the point. 11. PW 3 (Jitu Mahto) has testified to the effect that the appellant after the marriage had demanded the dowry of bullocks, money for shop and for purchase of an auto-rickshaw from PW 4, but the demand for auto-rickshaw could not be fulfilled and the appellant often assaulted/ill-treated his wife (the deceased). He asserts to have stated about it before the police officer, but PW 12 (the Investigating Officer) has denied it. But, the statement of PW 3 in the case-diary shows that he has stated about it before the police. It seems that due to inadvertence, PW 12 has denied the making of such statement by the PW 3. The defence could not have been permitted to draw the attention of PW 3 to the previous statement, when there was no contradiction in his evidence. It is significant that it has been elicited by the defence in the cross-examination of PW 8 that there was a talk in the SINGA (their society), that the appellant used to assault/ill-treat his wife. The evidence of PWs 3 and 4 clearly suggest that the appellant used to make demand of money/ articles from his father-in-law and that he ill-treated his wife. The evidence of PWs 3 and 4 clearly suggest that the appellant used to make demand of money/ articles from his father-in-law and that he ill-treated his wife. True, it is that this is not a case of dowry death, but the evidence of PWs 3 and 4 go to show that the appellant had motive for murdering his wife. In the case of murder of wife by the husband, it is difficult to spell out the exact motive which operates in his mind, which may not be known to others. The reason is; mysterious is the working of the human mind. But in the present case, there is evidence to show the motive for the crime. One may now come to the other facts and circumstances of the case. The appellant was in the house when the deceased was done to death. There was no other family member at that time in the house. It is not a case where the death was suicidal. It was for the appellant to explain under what circumstances the deceased met with the homicidal death. The evidence of PWs 1 and 2, who are the agnates of the appellant, and PW 9, their co-villager, show that on the alarm raised by the appellant, they went to his house, who disclosed that the thieves have killed his wife. PW 8, the informant, has also stated that when on getting information from PWs 1 and 2, he went to the house of the appellant on that night, the appellant, on enquiry made by him, stated that the thieves have murdered his wife. PW 1 has further stated that there was wound on the person of the appellant and he was limping and an articles or two were scattered on the verandah. PW 2 has deposed that he had found injury on neck and leg on his person, he was limping and the roof of the verandah was torn. PW 9 has stated that the appellant had disclosed that the thieves had stolen the articles and killed his wife. PW 8 has further stated that he had seen some injuries on the person of the appellant, the roof was broken and the box in the shop too was broken. PW 9 has stated that the appellant had disclosed that the thieves had stolen the articles and killed his wife. PW 8 has further stated that he had seen some injuries on the person of the appellant, the roof was broken and the box in the shop too was broken. For the obvious reasons, PW 8 is conspicuously silent in his evidence regarding the allegation that the appellant had disclosed that the thieves attempted to rape his wife; that they had assaulted him with farsa or that money had been stolen by the thieves. The PWs have stated about the cause of the death, which was narrated to them by the appellant. In his statement under Section 313 of Cr PC, the appellant has stated that on the fateful night, he was sleeping on the verandah, while his wife was inside the room and on her alarm (MARLEK-MARLEK) he was awakened and when he enquired what was the matter, two thieves pressed his neck with lathi and when he tried to get up, he received a blow on the neck, which caused swelling and the thieves escaped and when on his call, his wife did not respond, he came out of the house, raising alarm, whereupon, the villagers arrived and he narrated the incident to them. It has come in the evidence of P.W. 12 that the residential portion of the house comprises one room, there is a door in the North, which opens on adjacent verandah in the front and the shop is to the East of the verandah and there is a passage from the verandah to the shop. The dead body of the deceased was found by him in the room on a cot in front of the door. Near the cot in the room or in the shop, the articles were not found in disturbed state. He also found no mark of touch on the box, on which there was dust, kept in the shop and the two doors of the shop were found bolted from inside. He found that the roof of the verandah was torn, but as few tiles had fallen on the ground and some were broken on the roof at some distance from the opening. He did not find any objective evidence of theft or dacoity. He further found that the clothes on the person of the deceased were not disturbed. He found that the roof of the verandah was torn, but as few tiles had fallen on the ground and some were broken on the roof at some distance from the opening. He did not find any objective evidence of theft or dacoity. He further found that the clothes on the person of the deceased were not disturbed. He had also found a heavy silver chain with blood-stains intact on the person of the deceased. The thieves would have taken away the ornament and not left it behind. Had the thieves entered the room and attacked the deceased, the deceased would have raised alarm, the articles near the cot and blood would have been scattered. But, the Investigating Officer found blood on the clothes, on the person of the deceased, the bed, and below the cot, but no bloodstain on the utensils and other articles kept near the cot was found. It sounds improbable that a young couple would sleep separately, one in the room and the other on the adjacent verandah, particularly when there was no other member present in the family. The above circumstances negate the possibility that the thieves had entered the room and murdered the deceased. 12. The defence of the appellant is that he had sustained wounds at the hands of the unknown miscreants in the incident. DW 1 (Dr. M.B.Jha) has stated that on 19.5.1987, at 10.30 a.m., on the requisition of the Police Officer, he examined the appellant and found abrasion right side of neck 1-1/2" x 1", abrasion on right leg over the outer-side 1-1/4" x 1/8", and painful swelling with bruise over the doreum of right-foot 3" x 2", which were simple in nature, caused by hard and blunt substance, like lathi. He has admitted in his cross-examination that the abrasions were superficial injuries and the bruises on the right foot could be caused by fall of a thing on it. No severe wound was found on his person. The injuries could be self-inflicted or caused by friendly hands. The medical evidence shows that the deceased had suffered severe wounds and the occurrence had lasted for some time. Under the circumstances, more severe wounds would have been suffered by the appellant had the unknown thieves/mis- creants been involved in the occurrence. No severe wound was found on his person. The injuries could be self-inflicted or caused by friendly hands. The medical evidence shows that the deceased had suffered severe wounds and the occurrence had lasted for some time. Under the circumstances, more severe wounds would have been suffered by the appellant had the unknown thieves/mis- creants been involved in the occurrence. The natural instinct of the husband would have been to resist the unknown miscreants on the cries of his living wife and would have suffered severe wounds. Further, the normal conduct on his part would have been to raise alarm while the occurrence was in progress to attract the neighbours and not after the miscreants had escaped. Another striking feature is that he did not go the police station to lodge the first information report regarding the incident. The defence taken by the appellant is falsified by the facts and circumstances of the case. 13. Consideration of the broad facts, sturdy circumstances and the probabilities of the case discussed above, unerringly lead to the irresistable conclusion that the appellant taking opportunity of the fact that the wife was alone in the house committed her murder and to shield himself, he created a false evidence in defence by concocting the story of raid by the unknown miscreants/ thieves and their involvement in her murder. 14. In view of the findings recorded above, the charge under Section 302 of the Indian Penal Code against the appellant is established beyond the shadow of all reasonable doubt. Hence, the order of conviction and sentence passed by the trial Court against the appellant is fit to be sustained. 15. In the result, there is no merit in this appeal and it is accordingly dismissed. The order of conviction and sentence passed by the trial Court against the appellant is affirmed. The appellant is on bail. He is directed to surrender to his bail-bond forthwith to serve out the remaining part of his sentence, as imposed by the trial Court, failing which the Court below shall take all steps for securing his attendance. Sharma, J. 16 I agree.