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2002 DIGILAW 1053 (JHR)

Lalit Mahli v. State of Bihar

2002-09-19

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
JUDGMENT Vishnudeo Narayan, J.-This appeal has been preferred by the appellant named above against the judgment dated 14.9.1994 passed in S.T. No. 108/92. T.R. No. 28/93 by Smt. Vidyut Prabha Singh, Vth Addl. Judicial Commissioner, Ranchi whereby and whereunder the appellant was found guilty for the offence punishable under section 302/34 I.P.C. and 498A I.P.C. and he was convicted and sentenced to undergo R.I. for life for the offence under section 302/34 I.P.C. and to undergo R.I. for two years for, the offence under section 498A I.P.C. However, both the sentences were ordered to run concurrently. 2. The prosecution case has arisen on the basis of the F.I.R. (Ext. 3) of P.W. 4, Karu Mahli, the informant and father of Sugia Devi, the deceased of this case, recorded by O/C Laxman Ram of Chanho P.S. on 4.6.1991 at 6.30 hours regarding the occurrence which is said to have taken place on 3.6.1991 in the house of the appellant in Village Oapa, P.S. Chanho, District Ranchi. 3. The prosecution case, in brief, is that P.W. 3, Dukhia Mahli, the elder son-in-law of the informant (P.W. 4) came to his house in village Salgi, P.S. Kuru and informed him that his daughter Sugia Devi has been done to death and on that information he (P.W. 4) along with his wife (P.W.1), his son (P.W. 2) in the company of Dukhia Mahli (P.W. 3) came to Village Oapa and saw the dead body of the deceased and found an injury on her right side chest said to have been caused by dagger. It is alleged that the marriage of Sugia Devi had been solemnized 5 or 6 years prior to the occurrence with the appellant and she had a daughter aged about 4 years born to her. The prosecution case further is that Sugia Devi had returned to her matrimonial home eight days prior to the occurrence in the company of Charka Mahli, the father of the appellant, though she was unwilling to come to her matrimonial home in view of the fact that she was not provided with food there and she was also vexed, harassed and assaulted there. It is also alleged that the appellant along with the deceased had gone to work at Patna in some brick kiln, a year prior to the occurrence but the mother of the appellant went there and brought the appellant back to her house leaving Sugia Devi there and four and five days thereafter Sugia Devi returned to her parents' house and she has told that she will not go her matrimonial home at Oapa. Lastly it has been alleged that the appellant along with his brothers, i.e. the absconded accused Birua Mahli and Punit Mahli, in furtherance of their common intention had committed the murder of Sugia Devi by dagger. 4. The appellant has pleaded not guilty to the charges levelled against him and he claimed himself to be innocent and to have committed no offence and that he has been falsely implicated in this case. 5. The prosecution has examined six witnesses in all to substantiate the charges levelled against the appellant. P.W. 4, Karu Mahli is the informant of this case. P.Ws. 1, 2 and 3 are his wife, son and elder son-in-law respectively. P.W. 5, Dr. Ajit Kumar Choudhary, has conducted the post mortem examination on 3.6.1991 on the dead body of the deceased as per U.D. Case No. 42/ 91 dated 2.6.1991 under section 309 I.P.C. and post mortem report is Ext. 2 in this case. Ext. 1 is the signature of P.W. 2, Munna Mahli on the EI.A. (Ext. 3) as a witness thereon. P.W. 6, Suresh Prasad Srivastava is the part I.O. of this case and he has made no investigation in this case and has only submitted charge-sheet and he has proved the EI.A., the inquest report and the seizure list per pen of Sri Laxman Ram O/C Chanho P.S., who has investigated the U.D. Case No. 42/91 and those documents have been marked as Exts. 3, 4 and 5 respectively. 6. In view of the oral and documentary evidence on the record the learned court below has found the appellant guilty for the offence under sections 302/34 I.P.C. and 498A I.P.C. only and convicted and sentenced him as stated above. 7. 3, 4 and 5 respectively. 6. In view of the oral and documentary evidence on the record the learned court below has found the appellant guilty for the offence under sections 302/34 I.P.C. and 498A I.P.C. only and convicted and sentenced him as stated above. 7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that there is no iota of legal evidence on the record of any eye witness of the alleged occurrence that this appellant has committed the murder of his lawful wedded wife Sugia Devi rather the circumstance emanating on the face of the record is that Sugia Devi has committed suicide due to the fact of her frustration in her matrimonial life as a result of acute poverty in the family as well as due to the mental sickness of this appellant. It has also been submitted that a U.D. Case was registered regarding the occurrence in question on 2.6.1991 under section 309 I.P.C. and after the conduction of the post motem examination on the dead body of the deceased it was handed over to the appellant and his family and prior to the occurrence P.W. 3 was informed about the occurrence and he had also given information to the informant and others in respect thereof and when the dead body was being taken for cremation, the informant and others came on 3.6.1991 and they lodged this F.I.R. on 4.6.1991 falsely implicating the appellant and his two other brothers in this got up case. It has also been submitted that there is no iota of evidence on the record regarding the harassment and torture to the deceased by this appellant or his family members either for the demand of dowry or for any other purposes during the course of her stay in her matrimonial home to make out a case, even prima facie, under section 498A I.P.C. and the poverty in the family due to which admittedly she was devoid of meal, in the facts and circumstances of this case, can definitely not fall within the definition of cruelty when the deceased was herself an earning member capable of earning her livelihood for working as labourer. It has further been contended that it is not a case of homicide rather suicide which has been initially found to be correct in course of investigation by the I.O., Laxman Ram and serious prejudice has also been caused to this appellant due to the non-examination of Laxman Ram aforesaid, the I.O. of this case, as the appellant stands debarred, of eliciting facts in his cross-examination showing his innocence. Lastly, it has been contended that the learned court below has wrongly construed the circumstances of the case to fasten the guilt of the appellant in this case which apparently has no legal basis at all as per evidence on the record and has erred gravely in coming to the finding of the guilt of the appellant in this case. 8. The learned A.P.P. has submitted that Sugia Devi has died of an unnatural death in her matrimonial home due to the injury caused on her chest by dagger within seven years of her marriage and there is evidence on the record that she was vexed and harassed in her matrimonial home by the appellant and other members of his family and P.Ws. 4, 1, 2 and 3 have testified to the fact of the harassment and torture of the deceased in her matrimonial home and the learned court below has considered the circumstances emanating on the face of the record rightly which unerringly and irresistibly lead to the hypothesis of the guilt of the appellant. 9. It will admit of no doubt that Sugia Devi, the lawful wedded wife of this appellant, their marriage having been solemnized five or six years prior to the occurrence and having a four years old daughter, has died of an unnatural death caused by a stab injury on her chest in her matrimonial home Oapa and on information U.D. Case No. 42/91 was instituted on 2.6.1991 in Chanho P.S. It is not on the record as to on whose information that said U.D. case has been lodged. In pursuance thereof the said U.D. case was investigated by Sri Laxman Ram, O/C Chanho P.S. and in course of investigation inquest report (Ext. In pursuance thereof the said U.D. case was investigated by Sri Laxman Ram, O/C Chanho P.S. and in course of investigation inquest report (Ext. 4) was prepared by him and dead body of the deceased was sent for post mortem examination and thereafter the dead body was handed over to the appellant and when the State of Bihar dead body was being taken for cremation, the informant along with P.Ws. 1, 2 and 3 comes to Oapa village and they see the dead body of the deceased and thereafter they all returned to village Salgi of P.W. 3, Dukhia Mahli and on the following morning at 7.30 the F.I.R. was lodged by P.W. 4, the informant, implicating the appellant for the commission of the murder of the deceased and this case bearing Chanho P.S. Case No. 43/91 was instituted against the appellant. Therefore, in the facts and circumstances of this case there are two versions of the occurrence. The first version is of suicide committed by the deceased and the subsequent version is of the commission of the murder of the deceased by the appellant along with his two brothers, who are said to be absconding in this case. Let us now scan and examine the evidence on the record as to whether the subsequent version of the occurrence as averred in the F.I.R. (Ext. 3) stands substantiated beyond reasonable doubts or not. P.W. 5, Dr. Ajit Choudhary, has deposed to have conducted the post mortem examination on the dead body of deceased on 3.6.1991 and has found the following injuries on the dead body of deceased : Stab wound 2 1/2 cm x 1 cm x cavity deep on the right chest lateral side situated 10 cm right to the middle line and 11 cm below the right nipple and the weapon had passed through the 7th right inter costal space cutting the 8th rib partially and also cutting the interior border of right lobe of lever and has entered into stomach. The medical witness has also deposed that the death of the deceased is due to shock and haemorrhage as a result of the aforesaid stab injury caused by sharp cutting cum pointed weapon which may be knife and the time elapsed since death is between 6 to 24 hours. The medical witness has also deposed that the death of the deceased is due to shock and haemorrhage as a result of the aforesaid stab injury caused by sharp cutting cum pointed weapon which may be knife and the time elapsed since death is between 6 to 24 hours. According to the testimony of P.W. 5 the deceased of this case has sustained stab injury on her chest on 2.6.1991 which stands corroborated by the inquest report (Ext. 4) and the post mortem report (Ext. 2) and, therefore, the alleged occurrence having taken place on 3.6.1991 as stated in the F.I.R. (Ext. 3) is palpably false and incorrect. P.W. 5, the medical witness, has deposed in para 5 of his cross examination that the injury found on the person of the deceased may be self inflicted. The inquest report (Ext. 4) shows the existence of a dagger by the side of the dead body of the deceased in column 7 though there is no evidence on the record regarding the seizure of the said dagger by the 1.0. and the said dagger has also not been produced before the Court below in course of the trial of this case. Normally an assailant does not leave the weapon of assault at the place of occurrence. P.Ws. 1. 2, 3 and 4 are not the ocular witnesses of the occurrence and P.W. 3 got information about the occurrence and later on he informed about the same to P.Ws. 4, 1 and 2 after going to the house of the informant in the evening after making a visit of the place of occurrence. According to P.W. 3. P.Ws. 4, 1 and 2 were informed about the occurrence at about 3.00 O'clock in the day on 2.6.1991. It appears from the evidence of P.W. 3 that he did not get the information that the appellant along with his brothers has stabbed the deceased. He has disclosed in his evidence that co-accused Sirua had given him the information about the occurrence but he has not disclosed the name of the assailant to him. Giving information regarding the occurrence by co-accused Sirua to P.W. 3 is the natural conduct on behalf of the appellant as the house of P.W. 3 in village Salgi is nearest from village Oapa. Giving information regarding the occurrence by co-accused Sirua to P.W. 3 is the natural conduct on behalf of the appellant as the house of P.W. 3 in village Salgi is nearest from village Oapa. P.W. 3 has also deposed that he remained at the place of occurrence for 15 minutes and at that time there were 40-50 persons at the place of occurrence but he has made no enquiry from any of them and none of the persons present there have told him as to how the deceased has died. He has deposed in para 1 of his evidence that before going to the house of the informant he had gone to village Oapa and had seen the dead body of the deceased and thereafter he informed about the occurrence to the informant and others but he did not disclose the name of the assailants to the informant and others. He further deposed that he has remained in the house of the informant in the night. Had it been a case of homicide then it was the natural conduct of the informant as well as P.Ws. 1 and 2 to have rushed to the place of occurrence at once on getting the information. But the informant along with P.Ws. 1, 2 and 3 did not come to the place of occurrence immediately on getting the said information. This unusual conduct of the informant and P.Ws. 1, 2 and 3 is definitely at variance with the case of homicide of the deceased. P.W. 3 has deposed further that he stayed in the night in the house of the informant and in the following morning i.e., on 3.6.1991 he took his breakfast along with P.Ws. 4, 1 and 2 and thereafter proceeded for village Oapa where, as stated earlier, they have seen the dead body of the deceased when it was being taken for cremation. He has further deposed in para 3 of his evidence that thereafter he along with P.Ws. 4, 1 and 2 returned to his house in village Salgi where they all stayed in the night and on the following morning i.e., on 4.6.1991 they went to the P.S. and lodged the F.I.R. (Ext.3). It is pertinent to mention at this stage' that the F.I.R. (Ext. 4, 1 and 2 returned to his house in village Salgi where they all stayed in the night and on the following morning i.e., on 4.6.1991 they went to the P.S. and lodged the F.I.R. (Ext.3). It is pertinent to mention at this stage' that the F.I.R. (Ext. 3) is based on hearsay information and there is suspicion cast on the appellant and his brother therein to have committed the murder of the deceased by dagger. It is also pertinent to mention here that suspicion howsoever great cannot take the place of legal proof of the commission of an offence. The evidence of P.Ws. 4, 1 and 2 is in tune with the testimony of P.W. 3 as stated above. P.Ws. 4, 1 and 2 after seeing the dead body of the deceased while being taken for cremation also did not make enquiry as to how the deceased has been done to death from the persons who were carrying the dead body for cremation but he claims to have a talk with both the brothers of the appellant. This is a circumstance of impeachable character which suggest that P.Ws. 4, 1, 2 and 3 had definite information regarding suicide committed by the deceased and that it is not a case of homicide. It is equally pertinent to mention here that there is no iota of evidence on the record to testify the fact that the appellant has caused stab injury on the chest of the deceased causing her death in the company of his two brothers. 10. At this stage let us now advert to the surrounding circumstances as well as the background of this case. It has been stated in the F.I.R. (Ext. 3) that the deceased of this case has returned to her matrimonial home in the company of Charka Mahli, the father of the appellant eight days prior to the occurrence though she was unwilling to come there in view of the fact that she was vexed, harassed, assaulted and used to be denied food in her matrimonial home. 3) that the deceased of this case has returned to her matrimonial home in the company of Charka Mahli, the father of the appellant eight days prior to the occurrence though she was unwilling to come there in view of the fact that she was vexed, harassed, assaulted and used to be denied food in her matrimonial home. The F.I.R. further states that a year prior to the occurrence the appellant and the deceased were working in the brick kiln at Patna and the mother of the appellant went there and brought the appellant with her leaving the deceased there and four and five days thereafter the deceased returned to the house of the informant and has told the informant that she will never go to her matrimonial home at Oapa and the reason for which is that she was vexed there and denied food. We have to bear in mind at this stage that harassment or assault or denial of food in this case, as alleged, has no connection or any co-relation, whatsoever, with the demand of dowry. P.W. 4 has deposed in para 1 of his evidence that the deceased has hardships regarding the food and clothes in her matrimonial home and there has to be quarrel between him and her husband and in-laws and she has stated in respect thereof to him. He has further deposed in para 2 of his evidence that the deceased and the appellant who were working at brick kiln at Patna and the mother of the appellant brought with her the appellant to her house leaving the deceased there and thereafter the deceased anyhow returned to her matrimonial home in village Oapa and when she was vexed there she returned to his house. It is pertinent to mention here that P.W. 4, the informant, does not say about any physical assault on the deceased by the appellant or his other family inmates. In para 12 of his cross examination he has again reiterated the fact that the deceased had only hardships in food and clothes in her matrimonial home. He has also deposed that she was sent back to her matrimonial home in the company of father of the appellant on his assurance that she will not face hardships of any food and clothes in her matrimonial home. He has also deposed that she was sent back to her matrimonial home in the company of father of the appellant on his assurance that she will not face hardships of any food and clothes in her matrimonial home. P.W. 1, the mother of the deceased, in para 2 has deposed that the deceased was ill-treated in her matrimonial home by the appellant and his other family members and she was denied food and she used to tell this fact to her whenever she comes to her parent's house. She has also stated about the Patna incident, as deposed by P.W. 4, the informant. In para 8 of her cross-examination she has deposed that she has not deposed about her hardship at her matrimonial home to anybody or even to the Panchayat and she has deposed for the first time in respect thereof before the 1.0. Her evidence in para 9 of her testimony has considerable bearing in this case in which she was deposed that the appellant is a labourer by profession and sometime he used to get the work as labourer and sometimes he does not get the work as labourer and for a considerable time the appellant was devoid of any job as labourer and during that period there were hardships to the appellant as well as to the deceased in mess. In para 10 she has deposed that the deceased never used to quarrel in her matrimonial home and the appellant and his inmates also did not quarrel with her. P.W. 2 in para 3 has deposed that the deceased used to tell him when she comes to his house that his in laws quarrels with her and they do not provide her food properly. P.W. 4 has deposed in para 19 of his testimony that the appellant and the deceased used to work in brick kiln as labourer. He has further deposed that the deceased used to make complaint to him that she is not provided with meal and she has hardships in respect thereof. He has also deposed in the most clear and unequivocal terms that she has made no other complaint to him. It is, therefore, crystal clear from the evidence of P.W. 4 read with P.Ws. 3. 2 and 1 that the deceased had hardships only in regarding her meal in her matrimonial home. He has also deposed in the most clear and unequivocal terms that she has made no other complaint to him. It is, therefore, crystal clear from the evidence of P.W. 4 read with P.Ws. 3. 2 and 1 that the deceased had hardships only in regarding her meal in her matrimonial home. It further appears that the appellant and the deceased used to work as labourer and when they were out of job and they had no earning and, thus, the hardships to the deceased in respect of her food etc. was but natural. In this view of the matter section 498A I.P.C. is not at all attracted in this case. This hardship cannot be taken as a circumstance against the appellant for the commission of the murder of the deceased. The learned court below has wrongly construed the aforesaid hardships as a circumstance of unimpeachable character for the commission of the murder of the deceased as alleged and the said circumstance unerringly and irresistibly pointing to the hypothesis of the guilt of the appellant. And last but not the least, the deceased is an able bodied person capable of earning and, admittedly, she used to work as labourer with the appellant whenever she got a job to work as such and in this view of the matter there is no compelling reason for the appellant for the commission of the murder of the deceased and, therefore, this circumstance does not lead to an inference of the guilt of the appellant in this case. Further more, charge under section 498A I.P.C. was added at a later stage on amendment but no charge was framed and read over to the appellant and also no specific question of any torture, as alleged, was put to the appellant in his examination under section 313 Cr.P.C. and, therefore, the learned court below has gravely erred in relying upon the alleged hardship, as stated above, as a circumstance of unimpeachable character against the appellant showing unerringly to his guilty. It appears that the learned court below was swayed more by sentiment and emotion and not by legal evidence on the record and has. therefore, erred in coming to the guilt of the appellant. It is equally pertinent to mention here that Laxman Ram, O/C Chanho P.S., who has investigated both the U.D. Case and this case, has not taken oath for the prosecution. therefore, erred in coming to the guilt of the appellant. It is equally pertinent to mention here that Laxman Ram, O/C Chanho P.S., who has investigated both the U.D. Case and this case, has not taken oath for the prosecution. It has come in the objective finding of the I.O. in para 6 of case diary that the dagger was found entangled with the Sari of the deceased and the Sari was besmeared with blood. This objective finding of the I.O. could not be brought on the record due to his non examination in this case. Had it been a case of homicide then there was no reason for the appellant or the assailant to leave the dagger entangled with the Sari of the deceased. The said objective finding rather connects the suicidal death of the deceased and this objective finding could not be brought on the record which has caused serious prejudice to the appellant in this case due to the non-examination of the I.O. and at the same time it negates the prosecution case of the commission of the murder of the deceased by the appellant and his two brothers. It is, therefore, evident from the evidence oral and documentary on the record coupled with the circumstances that the death of the deceased in this case is not homicidal, as alleged by the prosecution, rather it is a case of suicide due to the hardships faced by the deceased out of frustration. Therefore, the impugned judgment is unsustainable. 11. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment is hereby set aside and the appellant is not found guilty of the charges levelled against him and he is accordingly, acquitted and discharged from the liability of his bail bonds.