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2003 DIGILAW 507 (PAT)

Uday Singh v. State Of Bihar

2003-04-30

ANIL KUMAR SINHA, B.K.JHA

body2003
Judgment ANIL KUMAR SINHA, J. 1. The sole appellant, namely, Uday Singh, the husband of the deceased, has been convicted under Section 302 of the Indian Penal Code, and has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/- or, in default, to undergo simple imprisonment for a period of one month. 2. The alleged occurrence took place on 9.5.96 but the informant reports the matter at the police station on 16.5.96, on the basis of which, FIR was lodged against the appellant and seven others under Sections 302, 201 and 120-B/34 of the Indian Penal Code. Save and except the appellant, other seven accused have been acquitted by the trial Court. As per the report of the informant, the case of the prosecution is that the informants daughter Punita Devi was married with the appellant three years ago. It is alleged that the appellant developed illicit relationship with his sister- in-law Sudhira Devi, on account of which, he used to torture the deceased. It has further been alleged that on 9.5.96, the appellant in conspiracy with other accused murdered the informants daughter by burning her and the dead body was made traceless by them. After completing the investigation, the police submitted charge- sheet against the appellant as well as seven others under Sections 302, 201 and 120- B/34 of the Indian Penal Code, on the basis of which, cognizance was taken and the case was committed to the Court of Sessions. 3. The case of the defence, as would appear from the suggestion given by the witnesses, is that Punita Devi died due to extensive fire and she was reached to the hospital for treatment but due to extensive burn injuries she died. The allegation of torture and ill treatment against the appellant has emphatically been denied. 4. In order to prove the charges, the prosecution has examined five witnesses including the doctor, who conducted autopsy on the dead body of the deceased. It may be pointed out that the informant of the case could not be examined as he died during the course of trial and the I.O. has also not been examined and no plausible explanation has been given for his non-examination. It may be pointed out that the informant of the case could not be examined as he died during the course of trial and the I.O. has also not been examined and no plausible explanation has been given for his non-examination. It may also be pointed out at the outset that there is no eye witness to the alleged occurrence and this case is based totally on the circumstantial evidence. 5. PW 1 Garbhu Mukhiya is a hear say witness, who heard about the death of the deceased on account of burn injuries and has stated that accused Priyawart Singh and his son took the deceased to Darbhanga for treatment. He also stated that the relationship between the deceased and the appellant was cordial. This witness has also admitted that accused Tara Singh had instituted a case against him under Section 107, Cr PC, still he has not spoken anything adverse against the appellant or his family members. 6. PW 2 Urmila Devi has deposed that on hearing holla, she went to the courtyard of Priyawart Singh and heard screams of the deceased. She also stated that accused Tara Singh broke the door and brought the deceased in the courtyard where the fire was extinguished and she was laid down on palm leaf and thereafter the deceased was taken to the hospital. She further stated that the appellant was also inside the room and 7-8 days before the alleged date of occurrence the in-laws had assaulted the deceased saying that she is black and if she dies, they will marry the appellant somewhere else. She has also stated that the appellant had assaulted Punita inside the room on the alleged date of occurrence itself. PW 2 is none else but the wife of Pawan Rai (PW 3) and series of litigation was going on between her husband and accused of this case and this fact has been admitted by PW 3 himself. Therefore, it can be said that PW 2 is a highly interested witnesses whose testimony has to be scrutinised with great care and caution before it is relied on. The occurrence is said to have taken place at about 1.00 a.m. in the night as per the own version of the PW 2 and at that time she was sleeping in her house. The occurrence is said to have taken place at about 1.00 a.m. in the night as per the own version of the PW 2 and at that time she was sleeping in her house. She has stated that she woke up on hearing halla, which was being raised by this appellant and other accused, who were shouting JelGaya, Jel Gaya, Bachao, Bachao". She further stated that when she reached in the courtyard of the accused, she found the family members in the courtyard and she also saw that accused Tara Singh was breaking the door and after breaking the door the deceased was taken out of the room. The evidence of PW 2, therefore, shows that when she had reached in the courtyard of the accused, the appellant was present in the courtyard alongwith others. As such, her not look believable. Similarly, PW 2 has admitted that she had not actually witnessed the appellant assaulting his wife 7-8 days before the alleged occurrence, rather, she had only heard. Therefore, her evidence on the point of assault by the accused 7- 8 days before the alleged occurrence is nothing but hearsay. PW 2 expressed her ignorance regarding the fact that burning dibri fell down upon the deceased, as a result of which, she sustained burn injuries. 7. PW 3 Pawan Rai, is the husband of PW 2 but he has not whispered a word regarding the ill-treatment or assault by the appellant 7-8 days before the alleged occurrence. According to PW 2, her husband had also gone to the house of the appellant on hearing halla but PW 3 has not stated that the appellant was found inside the room where the deceased was burnt. PW 3 has been declared hostile by the prosecution and although he was on inimical terms with the family of the appellant and had series of litigation, he clearly admitted that he never heard about the ill-treatment meted out to the deceased by her in-laws. As such, it would appear that the evidence of PW 2 is not worth belief and she has falsely deposed because her husband was on litigating terms with the appellant. 8. PW 4 Lalan Jha has also turned volte face, inasmuch, as he expressed his complete ignorance as to how the deceased died and denied to have made any statement. As such, it would appear that the evidence of PW 2 is not worth belief and she has falsely deposed because her husband was on litigating terms with the appellant. 8. PW 4 Lalan Jha has also turned volte face, inasmuch, as he expressed his complete ignorance as to how the deceased died and denied to have made any statement. In cross-examination, PW 4, who is an independent witness has clearly stated that the deceased had sweet relationship with her in-laws. As such, the evidence of PW 4 also rules out the possibility of torture and ill-treatment meted out to the deceased as has been alleged in the FIR. It would be pertinent to point out here that no witness has whispered a word that the appellant used to torture the deceased because he had illicit relationship with his sister-in-law, namely, Sudhira Devi, as has been alleged by the informant in his written report. 9. PW 5 is Dr. Akhauri Ravindra Kishore, who conducted post mortem examination on the dead body of the deceased on 11.5.96 at 4.15 p.m. and found extensive burn injuries on the person of the deceased. In his opinion, the deceased died due to bum injuries. FW 5 has proved the post mortem report (Exhibit-1). According to PW 5, burn injuries as mentioned in the post mortem report were ante mortem and the time elapsed since death was within 18-30 hours from the time of post mortem examination. In cross-examination, PW 5 has stated that he did not find any other external injury. 10. In this case. CW 1 Sewa Nand Singh was examined to prove the formal FIR (Exhibit-3), as also the endorsement made on the written report (Exhibit-3). CW 1 has also proved para 1 to 40 of the case diary (Exhibit-4), inquest report (Exhibtt-5) and the signature of the informant (Exhibit-6) on the written report. 11. From the above analysis of the evidence, it would appear that out of four witnesses, PW 1 is a hear-say witness, PW 3 and 4 have been declared hostile and the evidence of PW 2 does not deserve to be relied upon for the reasons stated above. The prosecution failed to examine the I.O. of the case and due to his non-examination the place of occurrence has also not been established beyond doubt. 12. The prosecution failed to examine the I.O. of the case and due to his non-examination the place of occurrence has also not been established beyond doubt. 12. Learned counsel appearing for the appellant submitted that the alleged occurrence took place on 9.5.96 but the informant submitted written report on 16.5.96, although the informants village is situated at a distance of one kilometer from the village of the appellant and this long delay in reporting the matter at the police station goes to show that after due deliberation a concocted FIR was lodged. Learned counsel also submitted that written report of the informant has also not been proved. As such, there was no prosecution case before the Court since the report submitted by the informant was not duty proved. 13. It has been held in the case of Khashaba Maruti Shrike v. The State of Maharashtra AIR 1973 SC 2474 that "In order to base the conviction of an accused on circumstantial evidence the Court must be certain that the circumstantial evidence is of such a character as is consistent only with the guilty of the accused. If however, the circumstantial evidence admits of any other rational explanation, in such an event an element of doubt would creep in and the accused must necessarily have the benefit thereof. The circumstances relied upon should be of a conclusive character and should exclude every hypothesis other than that of the guilt of the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances must show that within all reasonable probability the impugned act must have been done by the accused. If two inferences are possible from the accused. If two inferences are possible from the circumstantial evidence, on pointing to the guilt of the accused, and the other also plausible, that the commission of the crime was the act of someone else, the circumstantial evidence would not warrant the conviction of the accused." 14. In the instant case, we find that the prosecution miserably failed to prove the guilt of the accused by demonstrating any such circumstances, on the basis of which, it may be said that the guilt of the appellant has been established. In the instant case, we find that the prosecution miserably failed to prove the guilt of the accused by demonstrating any such circumstances, on the basis of which, it may be said that the guilt of the appellant has been established. By no stretch of imagination, it can be said that the prosecution had proved the charges against the appellant by proving the chain of circumstantial evidence pointing only to the guilt of the accused appellant. 15. We are, therefore, of the view that the prosecution has not proved the charges against the appellant beyond all reasonable doubts and the learned Court below was no justified in convicting the appellant in the manner stated above. Accordingly, we set aside the impugned order of conviction and sentence as recorded by the trial Court. 16. In the result, this appeal is allowed. The appellant Uday Singh, who is in custody, is directed to be released forthwith, if not wanted in any other case.