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2003 DIGILAW 831 (JHR)

Kandani Murmu v. State of Bihar (now Jharkhand)

2003-07-16

VISHNUDEO NARAYAN

body2003
Judgment Vishnudeo Narayan, J.- This appeal has been preferred by the sole appellant named above against the impugned judgment and order dated 14.5.1990 passed in Sessions Case No.1 02 of 1989/10 of 1989 by Shri Jugal Kishore Prasad, 2nd Additional Sessions Judge, Santhal Parganas, Dumka whereby and whereunder the appellant was found guilty for the offence punishable under Section 304, part-II of the Indian Penal Code and she was convicted and sentenced to undergo rigorous imprisonment for ten years. 2. The prosecution case has arisen on the basis of the written report (Ext. 6) dated 7.4.1988 of A.S.I. Awad Kumar Tiwari, Raneshwar P.S. who had conducted the investigation of U.D. Case No.2 of 1988 dated 2.4.1988, lodged before Raneshwar P.S. regarding the occurrence which is said to have taken place between 18.00 hours of 31.3.1988 and 22.0.0 hours of 1.4.1988 between village-Ashanbai and village Reshma, regarding the unnatural death of Sohan Kisku, the husband of the appellant. On the basis of the said written report, case was instituted against the appellant by drawing of the formal F.I.R. on 7.4.1988 at 10.00 hours which was received in the Court empowered to take cognizance on 8.4.1988. It is pertinent to mention here that P.w. 7, Debu Kisku gave information at Raneshwar P.S. on 2.4.1988 that Sohan Kisku has died of drinking liquor and the dead body of the deceased is under the supervision of P.W. 6, Shisir Marandi, the Sardar of the village and Station Diary Entry No. 29 dated 2.4.1988 (Ext. 3) was made in respect thereof and P.W. 13, Rabindra Kumar, O/C Raneshwar P.S. came to the house of the appellant, Kandani Murmu at village-Reshma where her Fardbeyan (Ext. 4) was recorded on 2.4.1988 at 11.30 hours and U.D. Case No. 2 of 1988 dated 2.4.1988 was instituted. 3) was made in respect thereof and P.W. 13, Rabindra Kumar, O/C Raneshwar P.S. came to the house of the appellant, Kandani Murmu at village-Reshma where her Fardbeyan (Ext. 4) was recorded on 2.4.1988 at 11.30 hours and U.D. Case No. 2 of 1988 dated 2.4.1988 was instituted. In the Fardbeyan aforesaid it has been stated that, inter alia, that her husband Sohan Kisku had taken liquor two or three places in the Ashanbani Market on 31.3.1988 and he was under deep intoxication and she left Ashanbani Market in the company of her husband for her house and he fell down under intoxication on the Chapuria road in front of the house of the Chowkidar and in the state of intoxication he used to stand up and fall down on the ground as a result of which he has sustained injuries on his head and face and she gave information to her brothers, P.W. 11, Guddu Murmu and Lobin Murmu and on their arrival Sohan Kisku was taken to Ashanbani Hospital where the informant was directed to take her husband Sohan Kisku for treatment to Mohul Pahari but Sohan Kisku could not be taken there for the treatment and when he was being brought to the house of the informant he expired in the way near Joria and thereafter his dead body was brought to her house in village-Aeshma. The dead body of the deceased was sent for post mortem examination which was conducted by P.w. 4, Dr. Kapildeo Singh and on receipt of the post mortem report and after its perusal it was found that it is not a case of unnatural death, rather, it is a case of homicide. In the aforesaid backdrop, A.S.I., Awad Kumar Tiwari, the I.O. of the said U.D. case, lodged a written report (Ext. 6) before Raneshwar P.S. which is the basis for the prosecution of the appellant in this case. 3. The case of the prosecution as per the written report (Ext. 6) of A.S.I. Awad Kumar Tiwari, the informant is that post mortem examination of the dead body of Sohan Kisku, the deceased of this case, was conducted by P.w. 4, Dr. 6) before Raneshwar P.S. which is the basis for the prosecution of the appellant in this case. 3. The case of the prosecution as per the written report (Ext. 6) of A.S.I. Awad Kumar Tiwari, the informant is that post mortem examination of the dead body of Sohan Kisku, the deceased of this case, was conducted by P.w. 4, Dr. Kapildeo Singh on 3.4.1988 at 10.00 hours and he has found the following ante mortem injuries on the person of the deceased : "(i) One lacerated wound 1" x 1/2" x bone deep over the left side of forehead, over the eye brows. (ii) One lacerated wound 1 1/2" x 1/2" x bone deep over the occipital region of head. On dissection of the skull there was found fracture of the occipital bone and frontal bone. On dissection of the skull it was found fracture of the occipital bones and left frontal bone besides laceration of the brain and meninges and there was presence of clots in the cranium. It was also found on dissection of the chest that there was fracture of 3rd to 7th ribs of the left side and 3rd to 8th ribs of the right side of the chest and there was also laceration of connecting pleura and lungs with huge collection of blood present in the chest cavity. The post mortem report further shows that P.w. 6, the doctor conducting the post mortem examination has opined that the death of the deceased was due to shock and haemorrhage as a result of injuries mentioned above caused by hard and blunt substance. It is further alleged that there were vital inconsistencies in the facts averred in the fardbeyan (Ext. The post mortem report further shows that P.w. 6, the doctor conducting the post mortem examination has opined that the death of the deceased was due to shock and haemorrhage as a result of injuries mentioned above caused by hard and blunt substance. It is further alleged that there were vital inconsistencies in the facts averred in the fardbeyan (Ext. 4) of the appellant in view of the objective finding of the doctor conducting the post mortem examination and thereafter in course of further investigation it transpired from P.w. 3, Malinda Hasda, P.w. 1, Hopni Soren and P.w. 2, Sanmuni Baski that they had also gone to Ashanbani Market on 31.3.1988 and while returning they had stopped near the building of the bank and the appellant and her husband, Sohan Kisku came there in drunken state and Sohan Kisku was urinating near ,the wall and the appellant Kandani Murmu gave three blows on the person of her husband, Sahan Kisku by Bahangi (bamboo used in carrying heavy articles) and P.w. 3, Malinda Hansda had snatched the said "Bahangi" from the appellant and as a result of the injury blood started oozing from the head of Sohan Kisku and said Malinda Hansda has snatched and kept the said "Bahangi" in his house. It is also alleged that query was again made from the appellant and she made extra judicial confession before him as well as several co-villagers that the deceased had taken liquor out of the sale proceeds of wood and when she demanded the money from him, he gave her three or four blows by fist and in retali,ation she has also assaulted in her husband, Sohan Kisku by "Bahangi" causing bleeding injury on his head and from there she was bringing her husband to her house pushing him and he fell down near the house of Chowkidar in village-Ashanbani and in spite of her best efforts her husband could not stand up and thereafter she has given him two or three kicks in anguish and thereafter she kept vigil at him for the whole night. The prosecution case further is that the death of Sohan Kisku is a homicide committed by his wife, Kandani Murmu. 4. The prosecution case further is that the death of Sohan Kisku is a homicide committed by his wife, Kandani Murmu. 4. The appellant has pleaded not guilty to the charges levelled against her and she claims herself to be innocent and to have committed no offence and she has been falsely implicated in this case on mere suspicion. It is also contended that her husband Sohan Kisku has died of all as a result of excessive drinking. 5. The prosecution has in all examined thirteen witnesses to substantiate its case. P.w. 4, Dr. Kapildeo Singh has conducted the post mortem examination on the dead body of the deceased and the post mortem report per his pen is Ext. 1 in this case. P.W. 10, Mittu Mirgha, the Chowkidar of village-Ashanbani had informed P.w. 11, Guddu Murmu and his brother at the instance of the appellant when he had found Sohan Kisku injured and fallen near a date tree in the early morning of 1.3.1988 and at his information P.w. 11, Guddu Murmu came there. P.W. 5, Poska Kisku, P.W. 6, Shisir Marandi, P.w. 7, Debu Kisku, P.w. 10 Mittu Murgha, P.w. 11, Guddu Murmu and P.w. 12, Shaniram Murmu are the hearsay witnesses of the occurrence in question said to have learnt about the incident from the appellant. P.Ws. 8 and 9 have been tendered. P.w. 3. Malinda Hansda, P.w. 1, Hopni Soren and P.w. 2, Shanmuni Baski are said to be the ocular witnesses of the assault on the deceased made by the appellant. P.w. 13, Rabindra Kumar is the investigating officer of this case. Ext. 7 is the inquest report of this case regarding the deceased on which P.W. 11 and P.w. 12 figure as witnesses thereon. Ext. 8 is the production-cum-seizure list of the "Bahangi" said to have been produced in course of investigation to the I.O. by P.w. 3 aforesaid. No oral and documentary evidence has been adduced on behalf of the appellant. 6. Relying upon the evidence of P.Ws. 3, 1 and 2 and the circumstances emanating on the record, the learned court below found the appellant guilty for causing the death of her husband, Sohan Kisku and convicted and sentenced the appellant as stated above. 7. Assailing the impugned judgment it has been submitted by Ms. 6. Relying upon the evidence of P.Ws. 3, 1 and 2 and the circumstances emanating on the record, the learned court below found the appellant guilty for causing the death of her husband, Sohan Kisku and convicted and sentenced the appellant as stated above. 7. Assailing the impugned judgment it has been submitted by Ms. Kavita Sharma, Amicus Curiae for the appellant that there is no legal evidence on the record to substantiate the prosecution case beyond all reasonable doubts and the evidence of P.Ws. 3, 1 and 2 regarding the assault on the deceased by "Bahangi" by the appellant is definitely not in conformity with the injuries as found by P.w. 4, Dr. Kapildeo Singh, who has conducted the post mortem examination on the dead body of the deceased. Elucidating further it has been contended that injury was found on the forehead of the deceased which is not in conformity with the evidence of P.ws. 3, 1 and 2 in view of the fact that they have deposed that three blows were given on the person of the deceased from behind when he was urinating by the side of the wall near the bank. It has also been submitted that there is no material on the record to explain as to how the injuries have come on the chest of the deceased causing the fracture of the ribs of both sides of the chest. It has also been contended that the deceased in a drunken state while coming to his house in the company of the appellant fell on the road several times as a result of which he has sustained injuries which led to his death and this appellant had remained with the deceased throughout the night of 31.3.1988 and 1.4.1988 attending him at the place where he had fallen and in spite of her best efforts he could not be able to come to his house and finally in the morning of 1.4.1988 on the arrival of P.W. 11 at the instance of P.W. 10, Sohan Kisku was taken to Ashanbani Hospital where no treatment was provided to him and she was asked to go to some other hospital for his treatment but the deceased expired when he was being taken to her village. It has also been submitted that the evidence of P.Ws. It has also been submitted that the evidence of P.Ws. 3, 1 and 2 is inconsistent and contradictory regarding the manner of the alleged assault and their evidence is fit to be brushed aside. Lastly, it has been contended that Awadh Kumar Tiwari, the I.O. of the U.D. Case and on whose written report this case has been instituted, has not been examined in this case and the appellant stands seriously prejudiced on that score and adverse inference has to be drawn against the authenticity of the prosecution case. Viewed thus the impugned judgment is unsustainable. 8. Refuting the contention it has been submitted by the learned A.P.P. that the averments made in the Fardbeyan (Ext. 4) of the U.D. Case NO.2 of 1988 found to be palpably false in view of the post mortem report (Ext. 1) which shows the homicidal death of the deceased and the appellant was throughout in the company of the deceased from Ashanbani market to her village-Reshma between the period from 31.3.1988 to 2.4.1988 and inquest report also shows the existence of injuries on the head and face of the deceased and P.Ws. 3, 1 and 2 in their evidence on oath have categorically stated that they have seen the appellant assaulting the deceased by "Bahangi" and in view of the evidence aforesaid the learned court below has rightly come to the finding of the guilt of the appellant and thus, there is no illegality in the impugned judgment requiring an interference therein. 9. Let us now advert to the evidence on the record. P.w. 4 Dr. Kapildeo Singh has deposed to have conducted the post mortem examination on the dead body of the deceased on 3.4.1988 at 10.00 hours and he has found the following ante mortem injuries on the dead body of the deceased: "(i) One lacerated wound 1" x 1/2" x bone deep over the left side of forehead, over the eye brows. (ii) One lacerated wound 1 1/2" x 1/2" x bone deep over the occipital region of the head. On dissection of the skull there was fracture of the occipital bone and frontal bone. The medical witness has also deposed that on further dissection he has found laceration of brain and meanings covering of the brain and presence of blood clots in the cranium. On dissection of the skull there was fracture of the occipital bone and frontal bone. The medical witness has also deposed that on further dissection he has found laceration of brain and meanings covering of the brain and presence of blood clots in the cranium. His evidence is further to the effect that there was also fracture of 3rd to 8th ribs of the right side chest and 3rd to 8th ribs of the right side chest of the deceased with laceration of pleura and lungs and huge collection of blood in the chest cavity. The medical witness has opined that the death of the deceased was due to shock and haemorrhage as a result of injuries aforesaid caused by hard and blunt substance may be by Lathi or "Bahangi" and fracture of the ribs aforesaid may be caused by trampling by the human foot. In para-5 'of his cross-examination, the medical witness has further deposed that all the injuries aforesaid may be caused by fall. Here in this case, the ocular testimony of P.W. 3, Malinda Hansda, P.w. 1, Hopni Soren and P.W. 2, Shanmuni Baski, who are the resident of village-Reshma, is regarding the assault on the deceased by the appellant caused by "Bahangi". P.w. 3 has deposed that in course of coming back from Ashanbani Market they stopped in the way and they are sitting together in front of the bank and she saw the appellant and the deceased coming out from a liquor shop towards them and the deceased started urinating catching the side of wall and the appellant gave three blows on the head of the deceased from behind by "Bahangi". She has also deposed that she has snatched the said "Bahangi" from the appellant and thereafter she proceeded along with P.Ws. 1 and 2 for village Reshma. In para-2 of her evidence she has deposed in the most clear and unequivocal terms that after the said assault she had seen the deceased and the appellant going together towards her village but they were behind h~. However, in para-9 of her cross-examination she has contradicted her testimony and has stated that she has not seen as to whether any bleeding injury has been caused on the head of the deceased but . the deceased was not speaking and he was unconscious. However, in para-9 of her cross-examination she has contradicted her testimony and has stated that she has not seen as to whether any bleeding injury has been caused on the head of the deceased but . the deceased was not speaking and he was unconscious. Again in para-11 of her testimony she has deposed that there was bloodstains on the "Bahangi". The evidence of P.w. 3 appearing in para-2 as well as in paras-9 and 11 are self-inconsistent and contradictory. P.W. 1, has, however, de-posed that there was no further assault on the person of the deceased by the appellant by any manner. P.w. 1 has deposed that at the time of the assault the deceased was urinating while standing near the wall and the appellant gave three blows from behind on his head and P.w. 3 had snatched the said "Bahangi" from the appellant. P.w.1, has, however, does not say that any bleeding injury has been caused on the head of the deceased given by "Bahangi". She also does not say that as a result of the said assault the deceased fell on the ground and became unconscious. It, therefore, appears from the evidence of P.W. 1 that the assault on the head of the deceased has been made by the appellant from behind. P.w. 2, Shanmuni Baski has deposed that the appellant gave three blows by "Bahangi" from behind which hit the shoulder and neck of the deceased. She has also deposed that at that time the deceased was urinating while standing and the appellant had given blows from behind. She, however, does not depose that as a result of the said blows any bleeding injury has been caused on the head of the deceased and she has also not whispered in evidence on oath that the deceased fell down as a result of the said assault. P.W.2, also does not say regarding any other assault on the deceased by the appellant. It, therefore, appears from the ocular testimony of P.Ws, 1, 2 and 3 taken together that the appellant gave three blows by "Bahangi" from behind either on the head of the deceased or on his shoulder and neck but no bleeding injury was caused on the person of the deceased who also did not fall on the ground as a result of the said injury. The ocular testimony of the aforesaid witnesses is definitely not in conformity with the objective finding of the medical witness regarding the existence of injuries appearing on the forehead of the deceased as well as fracture of the ribs of both sides of his chest and even after the assault as per the evidence of P.W. 3, the deceased was proceeding with the appellant towards village. In view of the nature of the injuries on the head of the deceased caused by "Bahangi" by the appellant, the deceased can never be in a position to walk at all for going to his house in the company of the appellant in the normal course. But here in this case, in spite of the assault on his head the deceased proceeded with the appellant for his village Reshma. It, therefore, appears that the assault by the "Bahangi" as deposed by P.Ws. 3, 1 and 2 has definitely not caused the injuries on the forehead as well as occipital region as found by the medical witness. It, therefore, further appears that the injuries on the forehead as well as on the occipital region of the deceased and the injuries of fracture of the ribs of both sides of chest must have occurred in game different manner and the prosecution is conspicuously silent in respect thereof. There is no other evidence on the record to explain as to how the aforesaid injuries have come to exist on the person of the deceased. There is no iota of legal evidence of extra judicial confession made by the appellant that she has assaulted the deceased causing aforesaid injury, which led to his death. All the other witnesses are hearsay witnesses of the occurrence in question. The alleged "Bahangi" has been produced by P.w. 3 to the I.O., which was seized, but the I.O. in his evidence on oath do not whisper regarding the existence of any blood stains thereon. All the other witnesses are hearsay witnesses of the occurrence in question. The alleged "Bahangi" has been produced by P.w. 3 to the I.O., which was seized, but the I.O. in his evidence on oath do not whisper regarding the existence of any blood stains thereon. Therefore, the manner of assault on the deceased has been shrouded in mystery in this case as a result of which the decease has sustained injuries on his forehead as well as on the occipital region of his head, both sides of the chest and fracture of ribs Therefore, in the facts and circumstances of the case it appears that the deceased distained injuries in the state of deep intoxication due to fall while coming to his house in the company of the appellant. The medical witness in his cross-examination has categorically deposed that all the injuries aforesaid are possible by fall. There is also an unimpeachable circumstance on the record, which is to the effect that the appellant has kept vigil at the deceased when he had fallen for the whole night and when he was unable to walk to his house. Has she assaulted her husband in the manner in which the aforesaid injuries were possible as found by the medical witness, in that case there was no reason for her to attend the deceased for the whole night. The natural conduct of the appellant would have been to flee away from that place. Therefore, there is total dearth of legal evidence on the record to substantiate the fact that the appellant has assaulted the deceased causing the injuries aforesaid which resulted in his death and viewed thus, the prosecution case is not at all established beyond reasonable doubt that the deceased has died due to assault perpetrated on him by the appellant. The learned court below did not meticulously consider the evidence on the record in proper perspective and has gravely erred in coming to the finding of the guilt of the appellant and thus, the impugned judgment cannot be sustained. 10. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned court below is hereby set aside. The appellant is found not guilty and she is accordingly, acquitted and discharged from the liability of her bail bond.