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2001 DIGILAW 995 (PAT)

Karelal Tauti v. State Of Bihar

2001-10-19

D.P.S.CHOUDHARY, P.N.YADAV

body2001
Judgment D.P.S.Choudhary, J. 1. The appellant Kare Lal Tanti has preferred this appeal against the judgment and order dated 12th December, 1994 passed by the 1st Additional Sessions Judge, Banka in Sessions Case No. 64 of 1991 (G.R. Case No. 1277 of 1990) convicting him for the offence under Sec. 302 of the Indian Penal Code (hereinafter referred to as the IPC) and sentencing him to undergo rigorous imprisonment for life. 2. The prosecution case in brief is that Informant Prasadi Tanti in his fardbeyan dated 29.9.1990 alleged that he along with his mother-in-law (Mungia Devi), Daughter, Kanlli Devi (wife of the appellant), his mother Mukhia Devi and his son Damodar Tanti (deceased) and appellant accused had gone to the Irrigation Department Colony to visit Dasahwa Mela. At about 3.00 a.m. all the female members who had followed the deceased and the appellant had returned back from the Mela, but the deceased Damodar Tanti and appellant-accused did not return and remained in the Mela. When they did not return till 6.00 a.m. next day, the informant went for their search. In the way he learnt that dead body of a boy was lying in the Mahesha Canal. The informant went there and found the dead body of his son Damonar Tanti. There was an apparent injury on his right perital. He also found a big stone bearing blood-mark lying about 20 yards east of the dead body. There was a pool of blood on the ground near the stone. A Hawai Chappal of the deceased was also lying there. The informant suspected that accused-appellant had killed his son and threw the dead body in the canal and thereafter fled away. The appellant is son-in-law of the informant and the deceased was his Sala (brother-in-law). The informant alleged that accused- appellant used to assault his wife Kamli Devi and even tried to burn her one day. Therefore, she had fled away from her marital place some days back and was living with the informant (at her Naihar). It is further case of the prosecution that on 28.9.1990 the accused had come to the informants house and pressed to allow him to take his wife Kamli Devi along with him but she was not ready to go along with him. It is further case of the prosecution that on 28.9.1990 the accused had come to the informants house and pressed to allow him to take his wife Kamli Devi along with him but she was not ready to go along with him. In the Mela also the appellant had tried forcibly to take Kamli Devi with him but she did not go with him and returned back with her family members and other villagers leaving the deceased and the appellant in the Mela. The informant suspected that due to this annoyance the accused committed murder of the brother of his wife, a minor boy out of frustration. 3. The defence has not pleaded any specific case and took the plea of innocence and of false implication. 4. During the trial prosecution has examined altogether. 10 witnesses out of which PW 1 (Prasadi Tanti) is the informant, PW 2 (Sudamia Devi) is his wife and PW 3 (Kamli Devi) is his daughter and wife of the appellant. PW 4 (Mungia Devi) is mother-in-law and PW 5 (Mukhia Devi) mother has been tendered along with PW 9 (Madan Mohan Pandit). PW 6 (Chittu Tanti), PW 7 (Sukar Yadav) and PW 8 (Yogendra Tanti) are villagers. PW 10 is Dr. Sushil Mandal, who held the post-mortem on the dead body of deceased Damodar Tanti on 1.10.1990 and his report has been marked Ext. 2. The signatures of PW 8 on the inquest report, and seizure list have been marked Exts. 1 and 1/1, respectively. 5. The learned lawyer appearing on behalf of the appellant submitted that there is no eye witness of the alleged occurrence and the entire case is based on circumstantial evidence. The conviction of the appellant on the basis of circumstantial evidence is not sustainable because the chain of the circumstances do not conclusively prove the guilt of the accused beyond all reasonable doubt. Another point raised on his behalf is that the Investigating Officer of the case has not been examined and the FIR has not been brought on record. This has caused serious prejudice to the defence case. They had no opportunity to cross-examine the Investigating Officer who was a material witness in this case. The vital contradictions in the statement of the above witnesses and their evidence in the Court could not be brought on record due to non-examination of the Investigating Officer. This has caused serious prejudice to the defence case. They had no opportunity to cross-examine the Investigating Officer who was a material witness in this case. The vital contradictions in the statement of the above witnesses and their evidence in the Court could not be brought on record due to non-examination of the Investigating Officer. It was also contended on behalf of the appellant that there was no motive for the appellant to commit the murder of the minor boy who was his Sala. As per the prosecution case, the appellant has differences with his wife and the appellant did not like that his wife should live in her Naihar. The appellant was persuading her to accompany him to her sasural. Such quarrel, in between the husband and wife is but natural. There is no evidence adduced on behalf of the prosecution that the appellant has any grudge against the deceased or he has given any threat earlier. The evidences on record show that appellant was persuading his wife to return back to her sasural. Therefore, it is not believable or acceptable to judicial conscious that without any strong motive he will commit the murder of his won Sala and thereby shut the door of his sasural for ever and will also loose his wife. In such cases the motive plays important role and in absence of any motive makes the prosecution case doubtful. 6. The learned appellants lawyer further argued that prosecution has relied on the evidences of PWs. 1 to 5 to prove that deceased was last seen with the appellant and hence the presumption would be that appellant has committed the murder. But the evidence of these witnesses are contradictory, unreliable and they do not prove beyond-all reasonable doubt that deceased had accompanied the appellant from his house and remained in his company till his death. 7. The learned appellants lawyer referred to the evidence of PW 1 who stated that appellant is his sonin- law. He along with his son Damodar Tanti (deceased) after dinner went to see Durgapuj a Mela in the Colony of Irrigation Department. After some time his mother-in-law, mother and daughter also went to see the Mela. All the three ladies returned back from the Mela at about 3.00 a.m. His son Damodar Tanti had not returned and on enquiry he was told that he (deceased) has remained behind in the Mela. After some time his mother-in-law, mother and daughter also went to see the Mela. All the three ladies returned back from the Mela at about 3.00 a.m. His son Damodar Tanti had not returned and on enquiry he was told that he (deceased) has remained behind in the Mela. On the next day in the morning when his son did not return back he went to search him. From a person (not named) he learnt that the dead body of a child is lying in the canal. He went there and identified the dead body of his son. He found an injury on his perital region and his face was full of blood. He also found a stone with blood-stained lying near that place besides a chappad of his son. 8. In cross-examination PW 1 stated that the appellant has never assaulted his daughter (wife of the appellant) in his presence. She told him that in pasural he used to assault her. From his evidence only this fact is derived that he has seen his son (deceased) going along with the accused to visit Mela at about 8 p.m. Other female members of the family also went to visit Mela after about half an hour. On the next morning, the dead body of his son was recovered. He is unable to say that in the Mela deceased boy all along remained in the company of the accused. Therefore, his evidence does not support the prosecution case that deceased was last seen with the accused-appellant before his death. 9. The learned appellants lawyer submitted that PW 2 is wife of PW 1. She has deposed similar to that of PW 1. She has not accompanied the ladies. She along with her husband remained in her house. Her evidence is on the point that her deceased son has gone along with the accused-appellant to visit Mela and after about half an hour other female members also went to the Mela. In the night at about 3.00 a.m. when the ladies members of the family returned back she has enquired about her son (deceased); but she does not say that they told her that he had remained in the Mela along with the accused. In the night at about 3.00 a.m. when the ladies members of the family returned back she has enquired about her son (deceased); but she does not say that they told her that he had remained in the Mela along with the accused. She stated that his daughter, wife of the accused told her that in the Mela accused has tried to catch her hand take her back to sasural which she declined. In the morning the found her son lying dead. In cross-examination she admits that her son-in-law (accused) had come to sasural 2-3 days back and during this period he has never quarreled with anyone, including his wife. There was no any apparent motive for the murder of his son by the accused-appellant. 10. PW 3 is wife of the accused appellant. She along with PWs. 4 and 5 had gone to visit Mela. She stated that in sasural her husband (accused) regularly assaulted her and tried to kill out of anger. She returned back to her Naihar. Her husband has come to sasural 2-3 days back of the occurrence. On the date of occurrence at about 8.00 p.m. her husband and her brother (deceased) went to visit Mela. She along with other ladies members went Mela after some time, where the accused wanted forcibly to take her sasural, which she refused and returned back to her Naihar along with other female members. She does not say that she had seen his brother (deceased) in the company of the accused when she had left Mela at about 3.00 a.m. She does not say that her brother was also present when the accused wanted to take her back to sasural forcibly. She has not given any explanation as to why she did not take back his deceased brother along with herself from Mela when her husband misbehaved with her. In paragraph 4 of her evidence she stated that when her mother enquired about the deceased brother she told her that he has remained back in the Mela but does not say that he along with her husband together remained in the Mela. In the morning on hulla, she went to see the dead body of her brother. The learned appellants lawyer submitted that similar is the evidence of PW 4. In the morning on hulla, she went to see the dead body of her brother. The learned appellants lawyer submitted that similar is the evidence of PW 4. She has not stated that when she left the, Mela along with PWs 3 and 5, she had seen the deceased moving in the Mela along with the appellant. Both the witnesses have stated that at about 8.00 p.m. the deceased went to visit Mela along with the accused. They, had met with the accused in the Mela but they do not say that the deceased was in the company of the accused. PW 5 is a tender witness. PW 6 is relation of the informant. He has given a different story and stated that he has seen the accused, quarrelling with PW 1 and at about 8.00 p.m. he had seen the accused quarrelling with his wife Kamli Devi (PW 3). In the morning he saw the dead body of the son of PW 1 found near the canal. Therefore, from his evidence it is clear that he does not say that the deceased had accompanied the accused to visit Mela. He had not seen the deceased in the company of the accused, in the Mela nor he was present at the time when the deceased was quarrelling with Kamli Devi (PW 3) in the Mela. Therefore, his evidence is of no help to the prosecution case. PW 7 is, a resident of the same village. He has given a different story. He stated, that on the date of occurrence at about 4.30 p.m. he saw the accused at the door of PW 1. In the night at about 8.00 p.m. he saw the deceased moving in the Mela along with the accused, had seen accused quarrelling with his Wife (PW 3). Other witnesses including PW 3 (Kamli Devil) have stated that the accused had caught hold the hand of his Wife (PW 3) at about 3.00 a.m. and thereafter returned back. Therefore, the quarrel in between the accused and his wife (PW 3) must have taken place in the Mela some time before 3.00 a.m. Therefore, his evidence as eye witness is not reliable. 11. The learned appellants lawyer submitted that from evidences at best it can be said, that deceased had left his house in the company of the accused at about 8.00 p.m. to visit Meta. 11. The learned appellants lawyer submitted that from evidences at best it can be said, that deceased had left his house in the company of the accused at about 8.00 p.m. to visit Meta. There is no evidence on record to show that deceased remained all along in the company of the accused in the Mela before his murder. None of the witnesses has stated that at about 3.00 a.m. when they left the Mela they had seen the deceased in the company of the accused, though PWs 3 and 4 have named only the accused who had quarreled with PW 3 and asked her to accompany him to her sasural. They do not say that deceased was also present at that time. The doctor who conducted the post mortem on the dead body of Damodar Tanti on 1.10.1990, at about 12.05 p.m. stated that death has occurred within 48 hours. The police seized the dead body on 30.9.1990 at about 9.00 a.m. The alleged Occurrence as per the prosecution case took place in between 3.00 a.m. to 6.00 a.m. on 29.9.1990. The doctor (PW 10) had found the following four ante-mortem injuries:- (i) An abrasion on the upper part of right pinna 1/4" x 1/4"; (ii) Sub-conjunctional haemorrhage in the right eye. Skin around the right eye was blackish due to eochymisis of blood; (iii) A lacerated wound on the upper part of the left pinna of ear. 1/4" x 1/4"; (iv) The left parietal bone completely fractured in transverse direction. Intraeranically there was considerable amount of blood underneath the fracture. In the left temporal region there was eochymisis of blood in the subcutaneous tissue. In the opinion of the doctor the injuries were caused by hard and blunt substance may be of stone and they are sufficient in ordinary course of nature to cause death due to shock and haemorrhage (Ext. 2). 12. Another limb of the contention on behalf of the appellant is that on record the prosecution has been able to adduce the evidence that the deceased had left with the appellant from his house at about 8.00 p.m. and in the next morning his dead body was recovered from the bed of a river. The prosecution has failed to prove that during this period the deceased all along remained in the company of the appellant. The prosecution has failed to prove that during this period the deceased all along remained in the company of the appellant. None of the witnesses discussed above who had met with the appellant in the Mela have said that deceased was also present at that time along with the appellant. Therefore, the chain of the circumstances is inclusive and they do not prove the guilt of the accused beyond all reasonable doubt. In support of this contention the learned lawyer relied on the case law reported in Kishan Chand Mangal v. State of Rajasthan and Shamd Birdichand Shamd V/s. State of Mahamshtra. 13. The learned APP submitted that there are strong circumstances against the appellant which prove beyond doubt that he has committed the murder. He was annoyed with his wife who has fled away from sasural to her Naihar. The appellant has come to her Naihar for taking her back to his home, which she declined. In the Mera also he tried to take her back to his home but she refused. The deceased was brother of his wife, therefore, his annoyance with him was natural. He has brought the deceased from his house at about 8.00 p.m. on the test of visiting Mela. On the same night the appellant was seen moving in the Mela by PWs 3 to 5. In the morning the dead body was found near the bed of a river very near to the place of Mela. Therefore, it is a case of deceased being last seen with the appellant and there was strong motive to commit the murder. The facts and evidences thus show that of strained relationship in between the appellant and his wife he became annoyed and ultimately, things came to such a pass that appellant to take revenge committed the murder of the brother of his wife. The cause of death as mentioned above is assault by a hard blunt substance such as stone and the post-mortem report shows that the minor boy was brutally murdered with the help of a stone. The Investigating Officer has found the pool of blood at the place of occurrence. The stone had also blood-marks. Therefore, all the circumstances conclusively proved the guilt of the accused beyond all reasonable doubt. 14. The Investigating Officer has found the pool of blood at the place of occurrence. The stone had also blood-marks. Therefore, all the circumstances conclusively proved the guilt of the accused beyond all reasonable doubt. 14. A close analysis of the decisions reported in AIR 1984 SC 1622 (supra) would show that following conditions must be fulfilled before a case against an accused can be said to be fully established:- (i) The circumstances from which conclusion of guilt is to be drawn should be fully established in catena of decisions it has been held that circumstances concern 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 AIR 1973 SC 2622 . 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 wrong and devides vague conjunctures from sure conclusions. (ii) The fact 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. (iii) The circumstances should be of a conclusive nature and tendency. (iv) They should exclude every possible hypothesis except one to be proved. (v) There must be a chain of evidence so complete and 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. Thus there are five golden principles laid down in different decisions of the Apex Court of the proof of a case based on circumstantial evidence. 15 Before an accused be convicted, the fact of death should be proved by such circumstances as rendered the commission of the crime morally certain and leave no ground for reasonable ground; the circumstantial evidence should be so cogent and compelling as to convince a court that upon no rational hypothesis other than murder can the facts be accounted for. 16. 16. On critical appraisal of the evidences as discussed above the prosecution has been able to prove only this much of the fact that: (1) the accused had strained relationship with his wife; (2) on the night of occurrence at about 8.00 p.m. the accused took the deceased along with him from his house to visit Mela: (3) at about 3.00 A.M. the female members of the deceased had seen the accused moving in the Mela but they do not say that deceased was also in his company; and (4) in the morning at about 6.00 a.m. the dead body was found near the bed of a river. 17. All these facts and circumstances do not fulfil the above five golden principles in proof of a case based on circumstantial evidence. PWs. 1 and 2 stated that appellant has come to his sasural 2-3 days prior to the occurrence. He has not quarreled with any member of the family. He had no grudge against the deceased. The family members have allowed the deceased to go along with the appellant to visit Mela. The appellant had quarreled with his wife and he was persuading her to go back to sasural. The prosecution has not uttered a word or adduce any evidence that appellant has any motive to murder his own Sala, a minor boy. The prosecution has also failed to adduce any evidence that in between 8.00 p.m. and before the murder the deceased boy remained in the company of the accused. Therefore, the prosecution has failed to prove the essential ingredients, on the basis of which a Court can come to the conclusion that there are circumstantial evidence, which conclusively proved the guilt of the accused beyond all reasonable doubt. The chain of the evidence to prove the conclusive guilt of the accused is not complete and the chain of evidence do not prove beyond doubt that in all human probability the murder must have been done by the accused. 18. I find substance in the submission of the learned lawyer of the appellant that accused was not put question in his examination under Sec. 313 of the Code of Criminal Procedure by the Court with regard to the deceased being consistently in the company of the accused from the time he has brought from his house before his death. 18. I find substance in the submission of the learned lawyer of the appellant that accused was not put question in his examination under Sec. 313 of the Code of Criminal Procedure by the Court with regard to the deceased being consistently in the company of the accused from the time he has brought from his house before his death. The Court below has put only one question to the accused. i.e., "It is said that in the night of 29th/30th September, 1990 you have committed the murder of Damodar Tanti and in answer the accused had denied it." It is settled law that every facts and circumstances, which are to be used against the accused and the evidences on record on which the Court has to rely are to be put before the accused and he should be given opportunity to explain them the examination of the accused by the Court is in perfunctory manner. The Court has not asked the accused any question with regard to the company of the deceased when he was brought from his house before his death. This is a serious lacuna and it has caused prejudiced to the accused. This has damaged the prosecution case beyond repair. 19. Therefore, the prosecution has miserably failed to prove the charge against the accused appellant beyond all reasonable doubt. The conviction of the accused-appellant is not in accordance with law. 20. In the result, the appeal is allowed. The conviction and sentence of the accused-appellant is set aside. The appellant is in custody. He is directed to be released forthwith if not required in any other case. Issue release order at once.