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2000 DIGILAW 545 (PAT)

Ram Babu Singh v. State Of Bihar

2000-04-05

M.L.VISA, R.N.PRASAD

body2000
Judgment M.L.Visa, J. 1. By the conviction and sentence to undergo imprisonment for life under Section 302 of the Indian Penal Code (In short, IPC) and RI for three years under Section 201, IPC arising from the judgment and order dated 10-4-1987 passed by Sessions Judge, East Champaran at Motihari in Sessions Trial No. 77 of 1986 the appellant is aggrieved and has filed this present appeal. 2. The case of prosecution in short is that Madan Pandey (P.W. 5), the informant, on 11-8-1984 on the occasion of Raksha Bandhan went to village Nandpur, P.S. Sangrampur within the district of East Champaran to meet his sister Radhika Devi, now deceased, who was married to the appellant. The informant reached the house of appellant at about 6.00 a.m. and found that the main door of the house was closed from inside and when he knocked at the door the appellant opened the door and the informant wished him but the appellant did not reply and went out. The informant then entered the courtyard of the house of appellant where he found the mother, the sister, and the brother-in-law of appellant sitting there along with their servant Raghunath Hajara. They all one by one, seeing the informant, went outside the house. This action arose suspicion in the mind of information and he then called his sister but did not get any reply and then he entered the room of his sister but he did hot find her there. The informant also found that the floor of the room of her sister was freshly sweeped and the walls of the house were also sweeped with cow dung up to waist height. The informant went out of the house and found that some children were playing on road in front of the house of appellant and out of those children one girl informed him that his sister had already been killed on the previous night and had been cremated in an orchard. The informant went out of the house and found that some children were playing on road in front of the house of appellant and out of those children one girl informed him that his sister had already been killed on the previous night and had been cremated in an orchard. The informant started weeping and wanted to enquire of the matter from the neighbours of the appellant but they all entered their house but one old man Ram Daya Singh (P.W. 3) told him that on the previous night at about 9.00 p.m. he had heard flattering sound from the house of appellant and in the morning he came to know that the dead body of the sister of informant had been stealthily cremated in a lonely orchard. The informant then went to an orchard where he found fresh signs of cremation and also found some bone scattered here and there. He also found iron joints by which the legs of chawki are tied and iron angles generally used in the planks of the door suggesting that the dead body was brought on a pyre made of the planks of door, legs of a chawki etc. On the basis of information given by the child girl and by observing the behaviour of the appellant and his family members the informant was convinced that his sister had been killed by the appellant, his mother, his sister, his brother-in-law and servant Raghunath Hajara and they along with their neighbours had disposed of the dead body in order to destroy the evidence of murder. The informant went to his village where he informed about the occurrence to his family members and thereafter he along with his father-in-law Mahavir Mishra (P.W. 6) and his uncle Ram Dhayan Pandey (P.W. 4) went to the police station on the same day at about 5.00 p.m. and lodged the F.I.R. (Ext. 1). In the F.I.R. the informant giving the background of the occurrence stated that his sister was married to appellant about 12 years before, she was issueless and she was subjected to torture in different ways by appellant, his mother, his sister and some times they used to complaint on account of dowry also. 1). In the F.I.R. the informant giving the background of the occurrence stated that his sister was married to appellant about 12 years before, she was issueless and she was subjected to torture in different ways by appellant, his mother, his sister and some times they used to complaint on account of dowry also. About four years ago his sister had sent him information that she was aggrieved by the inhuman behaviour of appellant and his family members and informant then brought his sister to his own house. Thereafter neither the appellant nor his family members came to take back his sister and the informant finding it not proper to keep his sister with him for a long time requested the appellant to take his sister with him but the appellant did not listen to him. In the meantime the informant came to know that the appellant was planning to marry the daughter of Anant Lal Pandey. He then along with his father-in-law Mahavir Mishra (P.W 6), his uncle Ram Dhyan Pandey (P.W. 4) arranged Panchayati at the house of appellant which was attended by Ram Ayodhya Singh, Ram Nihore Singh (P.W. 8), Ramashraya Singh (not examined) and others and the Panchayat decided that the appellant will not marry for the second time. On this the appellant made a demand of Rs. 500/- saying that he had already spent this amount in negotiations for his second marriage and assured that if he gets back this money he will not marry for the second time. The information accepting the demand of appellant paid a sum of Rs. 500/- but in spite of that the appellant did not take the sister of informant to his house and then the appellant got an advocates notice sent to the appellant and thereafter the appellant took away the sister of informant to his house and thereafter when the informant on the occasion of Raksha Bandhan on 11-8-1984 went to meet his sister he came to know about the occurrence. 3. 3. The police registered a case against the appellant, his mother, his sister, his brother-in-law and his servant but after investigation submitted charge sheet under Sections 302 and 201, I.P.C. against the appellant only keeping the investigation pending in respect of other accused persons named in the F.I.R. on the basis of charge-sheet cognizance of the case was taken and the case was committed to the court of Sessions where charges under Sections 302 and 201, I.P.C. were framed against the appellant. 4. The case of appellant before the trial Court as it appears from the witnesses examined on behalf of appellant and from the trend of cross-examination of prosecution witnesses is that his wife died of illness and he has been falsely implicated in this case. 5. The Court below after trial found the appellant guilty under Sections 302 and 201, I.P.C. and accordingly convicted and sentenced him as stated above. 6. In order to prove its case the prosecution has examined ten witnesses. Madan Pandey (P.W. 5) is the informant and brother of deceased and also sala (brother-in-law) of appellant, Ram Dhayan Pandey (P.W. 4), is the uncle of informant and Mahavir Mishra (P.W. 6), is the father-in-law of informant, who both had accompanied the informant to Sangrampur Police Station where the informant had lodged the F.I.R. Ishwar Tiwary (P.W. 7) and Ram Nihora Singh (P.W. 8) had attended the Panchayati which was called by informant to decide the matter regarding the proposed second marriage of appellant with some other girl. Parmanand Dwivedi (P.W. 9) is an advocate who has proved the carbon copy of a notice (Ext. 4) which was drafted at the instance of deceased for sending to appellant. Raj Bansi Pandey (P.W. 10) is a typist who had typed the notice (Ext. 4) and on which the deceased had put her L.T.I. Lakhindra Paswan (P.W. 1) and Ram Briksh Paswan (P.W. 2) are the witnesses to whom the appellant had gone for their help in cremation of dead body of his wife. Ram Daya Singh (P.W. 3) had simply stated that one day he had heard that the wife of appellant was vomitting and suffering from dysentery and a doctor had come. He has been declared hostile by the prosecution. 7. Ram Daya Singh (P.W. 3) had simply stated that one day he had heard that the wife of appellant was vomitting and suffering from dysentery and a doctor had come. He has been declared hostile by the prosecution. 7. Madan Pandey (P.W. 5), the informant, was examined on 11-4-1986 and in his evidence has stated that his sister was married to appellant about 13-14 years ago and appellant always used to assault his sister and was demanding dowry and 10 years ago he had brought his sister to his house and at that time also his sister had told that she was being assaulted and members of her sasural were telling her that she was issueless and his sister remained in his house for about four year since then but in between this period the appellant never came to his house to take away his sister. He has further stated that he then went to the house of appellant and requested him to come and take away his sister but the appellant did not give any reply and there he came to know that appellant had already arranged his second marriage and he then called a Panchayati which was held at the darwaja of appellant which decided that the appellant will not marry any other girl again and will bring the sister of informant to his house. The appellant demanded a sum of Rs. 500/-which he paid to the appellant but in spite of it the appellant did not come to his house for taking his sister and then a lawyers notice was sent to appellant and only thereafter the appellant took his wife with him to his house. The appellant demanded a sum of Rs. 500/-which he paid to the appellant but in spite of it the appellant did not come to his house for taking his sister and then a lawyers notice was sent to appellant and only thereafter the appellant took his wife with him to his house. About the occurrence the case of informant is that one day on the occasion of Raksha Bandhan when he went to the house of appellant to meet his sister he, first of all, after reaching the house of appellant met the appellant but the appellant did not talk with him and he left the house and thereafter when he went in the courtyard he found mother, sister, brother-in-law and servant of appellant sitting there but they all seeing informant went outside the house and he then called his sister but when he did not get any reply he entered the room of his sister but did not find her there in spite of hectic search and he also found that the house of appellant was sweeped with cow dung and a girl aged about 6-7 years informed him that his sister had been killed and her dead body had been cremated in an orchard and Ram Daya Singh (P.W. 3), the neighbour of appellant, also informed him that on previous night he had heard the sound from the house of appellant and on the next day in the morning the dead body of sister of informant had been cremated in an orchard of Ragho Mishra. When he went to the orchard of Ragho Misra he found fresh signs of cremation of dead body and he then returned back to his house and informed about the occurrence to his uncle Ram Dhayan Pandey (P.W. 4) and other family members and thereafter he along with Ram Dhayan Pandey (P.W. 4), his father-in-law Mahavir Mishra (P.W. 6) and his cousin Gaya Pandey (not examined) went to the police station and lodged the F.I.R. 8. Supporting the evidence of informant, Ram Dhayan Pandey (P.W. 4), who is uncle of informant and Mahavir Mishra (P.W. 6), who is father-in-law of informant have said that after return from the sasural of his sister the informant had told them that the appellant had killed his sister and thereafter they both went along with informant to police station where the informant lodged the F.I.R. Mahavir Mishra (P.W. 6) has further stated that in his presence the police had seized five half burnt pieces of bones, iron joints used for tying legs of chawki, iron hooks used in the planks of door and one burnt ring and had prepared a seizure list in his presence on which he and Subhash Chandra Singh put their signatures [3 and 3(1)]. 9. Laklundra Paswan (P.W. 1) has stated that one day at about 9.00 p.m. the appellant came to his house and informed him that his wife had died and asked him to accompany him for cremation of dead body of his wife but he did not go. He has been declared hostile by the prosecution. Ram Briksh Paswan (P.W. 2) has said that one day at about 8-9 p.m. the appellant came to his house and told him that he had killed his wife and asked him to accompany him for cremation of the dead body but he did not go with the appellant. But in para 4 of his cross-examination he has said that the appellant had told him that his wife had died and except this no other talk took place between him and the appellant. This makes his earlier statement that appellant went to him and told him that he had killed his wife quite doubtful. In para 5 of his evidence he had admitted that prior to it his wife had got the field of appellant grazed by a she-goat for which he was fined to pay a sum of Rs. 17/-. This shows that he was on inimical terms with the appellant. Ram Daya Singh (P.W. 3) has simply said that one day in the evening he heard that the wife of appellant was suffering from vomitting and dysentery and he also heard that a doctor had come. He has also been declared hostile by the prosecution. 10. Ishwar Tiwary (EW. This shows that he was on inimical terms with the appellant. Ram Daya Singh (P.W. 3) has simply said that one day in the evening he heard that the wife of appellant was suffering from vomitting and dysentery and he also heard that a doctor had come. He has also been declared hostile by the prosecution. 10. Ishwar Tiwary (EW. 7) in his evidence has said that he had attended a Panchayati to resolve the dispute between the informant and appellant. He has further said that appellant wanted to marry another girl which was opposed by informant and the Panchayati decided that appellant will not marry again another girl. In cross-examination he had admitted that informant is son of Gyan Pandey who is brother of his Samadhi Ramayya Pandey. In other words the informant is nephew of samadhi of this witness and in this way is related to this witness. Ram Nihora Singh (P.W. 8) in his evidence has stated that in the Panchayati the appellant had denied the allegation that he was planning to marry another girl. He has also been declared hostile by prosecution. 11. On behalf of appellant three witnesses have been examined. Shawkat Ali Khan (D.W. 1) has said that he is a homeopath doctor and on 9-8-1984 he along with appellant went to Nandpur where he reached about 11.00 p.m. and at there time wife of appellant was suffering from vomitting and dysentery and he stayed there for the whole night and left the place on the next day at about 6.00 in the morning and because the condition of wife of appellant was serious so he advised the appellant to take his Wife to hospital. He has proved a certificate (Ext. A) certifying that he had given some treatment to the deceased, who according to him, was suffering from vomitting and diarrhoea and advised appellant to take her to hospital. Dr. Satya Prakash Arya (D.W. 2) has said that on 10-8-1984 he gave treatment to deceased, wife of appellant. He has proved the prescription (Ext. B) in his pen and has further stated that when the condition of patient did not improve he referred her to Sadar Hospital, Motihari. Dr. Satya Prakash Arya (D.W. 2) has said that on 10-8-1984 he gave treatment to deceased, wife of appellant. He has proved the prescription (Ext. B) in his pen and has further stated that when the condition of patient did not improve he referred her to Sadar Hospital, Motihari. Fulena Singh (D.W. 3) is the uncle of appellant and has said that in the month of August, 1984 the deceased wife of appellant was suffering from vomitting and dysentery and she was first under the treatment of a homeopath doctor of Dariyapur and thereafter she received treatment from Dr. Satya Prakash Arya, who also later on referred her to Motihari Hospital. 12. From the evidence discussed above we find that admittedly there is no eye-witness on the point of murder of deceased, wife of appellant. The court below has also taken note of this fact but has passed order of conviction and sentence on the basis of some circumstances against the appellant. About the circumstances we find that only this much has been brought on record that the deceased, sister of informant, was married to appellant about 12 years before lodging the F.I.R. About the torture of deceased at the hands of appellant and his family members except informant no other witness has stated on this point. The evidence of informant is that his deceased sister was being tortured by appellant on account of dowry but In para 11 of his evidence he has said that for a period 1-2 years after her marriage whenever he used to visit the house of appellant be used to get proper respect. This shows that for a period of 1-2 years after the marriage her sister was not subjected to any torture. His source of information about the torture of his sister at the hands of appellant was the deceased sister herself because in his evidence he has stated that his deceased sister had told him that she was being assaulted by the members of her sasural who used to say that she was issueless. A suggestion has been given to him whether in his earlier statements he had stated this fact to which he has answered in affirmative but the prosecution has not examined the I.O. and this has definitely prejudiced the appellant in not getting opportunity for bringing contradiction on this point on record. A suggestion has been given to him whether in his earlier statements he had stated this fact to which he has answered in affirmative but the prosecution has not examined the I.O. and this has definitely prejudiced the appellant in not getting opportunity for bringing contradiction on this point on record. The another circumstance which has been tried by prosecution to be brought on record is that the appellant wanted to marry another girl. But then we find that evidence on this point is not convincing because the witnesses who have given evidence that a Panchayati on this account was convened are close relations of informant. The court below has given much reliance upon the evidence of (P.W. 2) who in his evidence has stated that one day in the night the appellant came to his house and said that he had committed the murder of his wife and asked him to accompany him for cremation of dead body of his wife but then it was failed to take note of evidence of this witness in para 4 of his cross-examination where he has clearly stated that the appellant had told this fact also that his wife had died. There is a mark difference between these two statements. Telling by a man that he has committed the murder of his wife and telling that his wife had died are quite distinct statements and are not complimentary or supplementary to each other. We further find that the Court below has also overlooked the evidence of this witness in para 5 in which he has stated that prior to occurrence his wife had got the field of appellant grazed by a she-goat for which he was awarded a penalty of fine of Rs. 17/-. This clearly shows that this witness was on strained terms with the appellant. 13. If the evidence of all the prosecution witness given in their examination-in-chief is taken to be true without putting the same to the test of cross-examination we find that only this much has come against the appellant that he wanted to marry another woman and at the time of death the deceased who was his wife was living in his house. On the basis of only these two circumstances it cannot be said that these circumstances unerringly point that the appellant committed the murder of his wife. On the basis of only these two circumstances it cannot be said that these circumstances unerringly point that the appellant committed the murder of his wife. The Apex Court in the case of Sharad Birdhichand Sarda V/s. State of Maharashtra, 1984 (4) SCC 116 : 1989 East Cr C 559 (SC), has set out some conditions which must be fulfiled in a case based on circumstantial evidence for holding an accused guilty in such cases. It has been held as follows : "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between may be and must be is long and divides vague conjectures form sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 14. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 14. In the present case apart from evidence of D.W. 3 on the point of deceased suffering from Diarrhea which has not been believed by the Court below on the ground that the witness was not examined during the course of investigation and he happens to be a relation of informant we find that there is evidence of D.W. 1 and D.W. 2, two doctors, who in their evidence have said that on 9-8-1984 and 10-8-1984 they found the deceased suffering from vomitting and dysentery and they had rendered medical treatment to her. From this evidence the possibility of deceased dying of illness cannot be completely ruled out in this case. This fact alone creates a gap in the chain of evidence adduced on behalf of prosecution and it cannot be said that this chain is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. We are unable to accept the finding of the Court below that because the plea of the appellant that the deceased died of illness was taken after the examination of some of the prosecution witnesses and in his examination under Section 313, Cr PC the appellant did not state this fact, so it cannot be accepted. In his examination under Section 313, Cr PC no question about the cause of death of his deceased wife was put and therefore if the appellant did not state in his examination the cause of death of his deceased wife it will not be a ground to throw away on board his defence which is supported from the evidence of D.W. 1 and D.W. 2. Apart from this, the case of prosecution has to stand on its own legs. In the case based on circumstantial evidence it is the duty of prosecution to bring on record the circumstances against an accused and to show that all such circumstances put together forms a complete chain which lead to only conclusion that the accused has committed the offence. In the case based on circumstantial evidence it is the duty of prosecution to bring on record the circumstances against an accused and to show that all such circumstances put together forms a complete chain which lead to only conclusion that the accused has committed the offence. In the present case we find that no such conclusion can be arrived at the circumstances emerging from the evidence led by prosecution. In view of all these facts we find it difficult to sustain the judgment of court below convicting and sentencing the appellant. 15. In the result the appeal is allowed. The judgment and order convicting and sentencing the appellant is hereby set aside and the appellant is acquitted. The appellant who is on bail is discharged from the liability of his bail bonds.