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2004 DIGILAW 31 (PAT)

Bhola Kunwar v. State Of Bihar

2004-01-08

AFTAB ALAM, B.K.JHA

body2004
Judgment BAL KRISHNA JHA, J. 1. The sole appellant, Bhola Kunwar, has preferred this jail appeal against the Judgment and Order passed by the then learned Additional Sessions Judge-II, Darbhanga on 7/9th March, 2000 in Sessions Trial No. 362/92. 2. The appellant has been convicted and sentenced to imprisonment for life under Section 302 of the Indian Penal Code. 3. The facts of the prosecution case are that in the night of 2nd April, 1992, the informant, Shambhu Kunwar, PW-3 and his other family members were sleeping in the house. His brother- accused, Bhola Kunwar, alongwith his deceased wife, Hira Devi and a minor daughter aged about 1 year was sleeping in the middle room and from inside the door was closed. At about 1.30 a.m., the informant heard the sound of gagging and "MAAEE GE MAR GELI" coming from the room of his brother, Bhola Kunwar. On hearing the sound the informant and his mother came out of their rooms but in the mean time the accused, Bhola Kunwar, came out of his room and fled by saying that nothing has happened. Thereafter the informant and his mother went inside the room and found that Hira Devi was lying injured on the ground and blood was oozing out from the right side of her neck. A blood stained knife was also found there. Thereafter the informant with the help of his grand father, Vijay Kunwar, PW-2, uncle, Dinesh Kunwar, PW-1 and one Abhimanu Kumar put Hira Devi on a cot and took her to a village Doctor where she was declared dead. Then the deceased Hira Devi, was brought back and kept in the Angan. The informant alleged that because of his mental imbalance the accused, Bhola Kunwar, committed the murder of his wife. 4. On 3.4.1992 at 9.30 a.m. the S.I. U.C Ram of Patour O.P. recorded the fardbeyan (Ext. No. 3) of Sharrbhu Kunwar at his house in Village-Sri Ram Pipra, P.S Bahadurpur, Darbhanga. On the basis of his fardbeyan (Ext. No. 3) a formal FIR (Ext.No. 4) was drawn up and a case was instituted against the sole accused under Section 302 I.P.C. On completion of the investigation his case was committed to the Court of Sessions and he was tried for the charge of murder which ended in his conviction and sentence as stated above. 5. No. 3) a formal FIR (Ext.No. 4) was drawn up and a case was instituted against the sole accused under Section 302 I.P.C. On completion of the investigation his case was committed to the Court of Sessions and he was tried for the charge of murder which ended in his conviction and sentence as stated above. 5. The defence of the appellant is that he is quite innocent and has been falsely implicated in this case by his grand father, PW-2, Vijay Kunwar and his own brother, Shambhu Kunwar, to grab his share in the property. 6. In the eventual trial the prosecution examined altogether five witnesses to bring home guilt against the accused. Out of them PW-2, Vijay Kunwar and PW-3, Shambhu Kunwar, are the eye witnesses to the occurrence. PW-1, Dinesh Kunwar, is a hearsay witness. He did not hear about the incident in the very night of the occurrence and later on learnt about it from his co-villager, Anil Kumar. PW-4, Udit Chandra Ram, is the I.O. and PW-5 is Dr. A.R.Kishore who conducted autopsy on the dead body of the deceased, Hira Devi. 7. The evidence of PW-5, Dr. A.R. Kishore, is that on 3rd April, 1992 at 3 p.m. he held post mortem examination on the dead body of the deceased, Hira Devi. He found rigor mortis present on both upper and lower limbs and the following ante-mortem injuries: One incised penetrating wound 1" X 1/2" X Chest cavity just above the sternal end of the right clavicle. It was found going inwards, downwards and towards left. In the opinion of the Doctor all the injuries were ante-mortem, grievous and dangerous to life in ordinary course of nature and caused by sharp cutting and pointed weapon. The death was due to haemorrhage and shock. According to him time elapsed in between death and the post mortem examination held was within 12 hours to 18 hours. He proved the post mortem report (Ext. No. 5). Thus, the evidence of the Doctor suggests that Hira Devi died of the injury caused by sharp cutting and pointed weapon. The defence has also not challenged her murder but has denied the participation of the appellant in the commission of her murder. 8. In order to understand the prosecution case, I may now state the evidence on record. 9. Thus, the evidence of the Doctor suggests that Hira Devi died of the injury caused by sharp cutting and pointed weapon. The defence has also not challenged her murder but has denied the participation of the appellant in the commission of her murder. 8. In order to understand the prosecution case, I may now state the evidence on record. 9. As stated above, PW-2, Vijay Kunwar and PW-3, Shambhu Kunwar, the informant are the eye witnesses to the occurrence. The evidence of PW-3, Shambhu Kunwar, the informant, is that in the relevant night he was sleeping in his room and his brother, Bhola Kunwar alongwith his wife Hira Devi and a minor daughter aged one year was sleeping in the adjacent room. His mother was also sleeping in a different room. At about 1.30 a.m. on hearing the sound of gagging and "MAAEE GE MAR GELI" when he alongwith his mother went near the room of his brother, accused, Bhola Kunwar, he came out of his room and fled away uttering that nothing has happened. Thereafter he went inside the room and found that Hira Devi was lying on the ground and the blood was oozing out from the right side of her neck. A blood stained knife beside was also found on the ground there. His further evidence is that his uncle, Dinesh Kunwar, PW-1, grand father, Vijay Kunwar, PW-2 and many others arrived and removed Hira Devi to the Village Doctor where she was declared dead. Thereafter she was brought back and kept in the Angan. His further evidence is that in the morning he went to the Patore Police Station and lodged the FIR He put his signature on his statement. He has proved his signature (Ext. No. 1). He has further stated that Darogaji came at his house and despatched the dead body of Hira Devi for post mortem examination. In cross examination his evidence is that at 6 a.m. he had gone to the Police Station and had narrated to the Officer Incharge about the entire incidence but failed to say as to whether his statement was recorded there or not. He has deposed that at about 9.30/10.00 a.m., the Officer Incharge came in the village and took down his statement. Darogaji could not examine her mother because at that time she was unconscious. He has deposed that at about 9.30/10.00 a.m., the Officer Incharge came in the village and took down his statement. Darogaji could not examine her mother because at that time she was unconscious. At para-17 of his cross examination he has denied the suggestion that his brother- accused, Bhola Kunwar, was mentally unsound. At Para-19 his evidence is that prior to the occurrence of the present case the accused, Bhola Kunwar, had assaulted him, his mother and grand father, PW-2, Vijay Kunwar. He had denied the suggestion that Hira Devi was murdered by some unknown persons and he with the help of his grand father falsely implicated the accused, Bhola Kunwar, in this case, for grabing his share in the property share. PW-2, Vijay Kunwar, is the cousin grand father of the informant and the accused, Bhola Kunwar. He has stated that his house and the house of the informant were situated in the same Angan. In the relevant night the accused, Bhola Kunwar alongwith his deceased wife, Hira Devi, and small daughter was sleeping in the middle room adjacent to the sleeping room of his brother, the informant, Shambhu Kunwar and mother. He was sleeping at his Darwaja. On hearing hulla of the informant, Shambhu Kunwar, he woke up and went there. The accused, Bhola Kunwar, opened the door of his room and fled by uttering that nothing has happened. Thereafter he alongwith Shambhu Kunwar and his mother went inside the room and found that Hira Devi was lying on the ground and blood was oozing out from her neck. Sufficient quantity of blood had fallen on the ground and a blood stained knife was also found there. He has further stated that two months prior to the occurrence the accused, Bhola Kunwar, had assaulted him, his mother and the brother-informant, Shambhu Kunwar. In cross examination at para-8 he has stated that the deceased Hira Devi was aged 17/18 years and the accused had never quarrelled with her. She was loved very much by her husband, the accused, Bhola Kunwar and the other family members. He has further stated that the accused, Bhola Kunwar is drunkard and always used to demand money from him, his brother and mother. On refusal he always used to assault them. She was loved very much by her husband, the accused, Bhola Kunwar and the other family members. He has further stated that the accused, Bhola Kunwar is drunkard and always used to demand money from him, his brother and mother. On refusal he always used to assault them. He has denied the suggestion that because of unsoundness of his mind the accused used to assault them, He has further stated that after the incident the injured, Hira Devi, was put on a cot and was taken to a Village Doctor by him, Shambhu Kunwar, the informant, PW-3 and Dinesh Kunwar, PW-1 and his mother where she was declared dead. Thereafter she was brought back and was kept in the Angan. He has further stated that thereafter Shambhu Kunwar, PW-3 went to the Police Station and returned from there one hour before the arrival of the Officer Incharge (Darogaji) in the Village. Pursuant to the direction of (Darogaji) they had kept confined the accused, Bhola Kunwar. He learnt from one Murari Thakur that Shambhu Kunwar, had already lodged the FIR at the Police Station, and was signed by him as well as by the informant. He has further stated that the Officer Incharge had brought all the papers at the time of visit of the place of occurrence. The mother of Shambhu Kunwar was in the house but she was not examined by the Police. He has also denied the suggestion that unknown criminal committed the murder of Hira Devi and he with the help of PW-3, Shambhu Kunwar, falsely implicated the appellant in this case. 10. PW-4, U.C.Ram, is the I.O. of this case. His evidence is that on 3.4.1992 he recorded the fardbeyan of the informant, took up the investigation of this case and visited the P.O. On inspection of the P.O. he seized the blood stained earth and knife and prepared a seizure list (Ext. No. 2). He also proved the seized blood stained knife, Material Ext. No. 1. He has further stated that on rumour he had arrived at the place of occurrence and had recorded the fardbeyan of the informant at his house (Ext. No. 3). He also proved the endorsement of the fardbeyan (Ext. No. 1/1) and sent the fardbeyan for institution of the case. No. 1. He has further stated that on rumour he had arrived at the place of occurrence and had recorded the fardbeyan of the informant at his house (Ext. No. 3). He also proved the endorsement of the fardbeyan (Ext. No. 1/1) and sent the fardbeyan for institution of the case. He has further stated that he also prepared the inquest report of the deceased, Hira Devi in presence of the independent witness (Ext. No. 4) and sent the dead body for post mortem examination. He also proved the formal FIR (Ext. No. 4). In the cross examination of this witness was deffered on the plea of the defence and thereafter he did not appear for his further examination. 11. Thus, from the above discussed evidence, I find that the case of the prosecution rests on the testimony of the PW-2, Vijay Kunwar and PW-3, Shambhu Kunwar. After discussing and examining the evidence of these two witnesses I find that there are circumstances which render their evidence not free from reasonable doubt: (a). The evidence of Shambhu Kunwar, PW-3, clearly suggests that in the following morning he went to the Patour Police Station and gave statement before the Officer Incharge. His statement was recorded and he put his signature. This sort of his evidence also finds corroboration from the testimony of PW-2, Vijay Kunwar. He has also stated that after keeping the dead body of Hira Devi in the courtyard the informant, Shambhu Kunwar, went to the Police Station and lodged FIR The informant as well as Murari Kumar put their signatures on the FIR The Officer Incharge had visited the P.O. with all those papers. The present FIR is alleged to have been lodged on the same date, i.e., 3.4.1992 at 9.30 a.m. at the house of the informant, PW-3 and one Navin Kumar is the attesting witness of the FIR Neither Navin Kumar, attesting witness of the present FIR nor Murari, the attesting witness of the alleged previous FIR has been examined by the prosecution. The criticism of the defence is that the original FIR was withheld and the present FIR has been made after due deliberation and consultation appears to be legitimate and cannot be brushed aside. (b). The criticism of the defence is that the original FIR was withheld and the present FIR has been made after due deliberation and consultation appears to be legitimate and cannot be brushed aside. (b). The consistent evidence of both the eye witnesses is that just after the incident in the very night the deceased Hira Devi was taken to the Village Doctor by the informant, Shambhu Kunwar, PW-3 with the help of Dinesh Kunwar, PW-1 and Vijay Kunwar, PW-2, Abhimanu Kunwar and the mother of the informant. But the evidence of PW-1, Dinesh Kunwar, gives a death blow to their testimony. He has clearly stated at para 5 that he did not hear about the occurrence in the very night of the incident and later on he learnt it from his co-villager, Anil Kumar. (c). It is also evident that the mother of the informant had seen the entire incident and also accompanied them upto the village Doctor but she was neither examined by the police nor produced for her evidence in the eventual trial. (d). It is no doubt to correct that the appellant and the deceased were together inside the room at the time of the occurrence. On the sound of gagging and "MAAEE GE MAR GELLI" when the witnesses reached near his room, he came out of his room by uttering that nothing has happened. It may, therefore, be reasonable to infer that the appellant was present at the time and the place of occurrence but this circumstance alone is not sufficient to conclude that it was the appellant who knifed his wife to death. There is no evidence to show that the accused- appellant had ever subjected his deceased wife, Hira Devi to any sort of assault. It is clear from the evidence of PW-2, Vijay Kunwar that the relationship in between the deceased and her husband, the accused, Bhola Kunwar, was very cordial and she was loved very much by him. (e). The appellant did not run away from the place of occurrence though he had ample opportunity to do so. Further, there is nothing on the record to show that this appellant had handled blood stained knife found near the dead body of the deceased, Hira Devi. (f). Thus, there is no direct evidence against the appellant in this case. (e). The appellant did not run away from the place of occurrence though he had ample opportunity to do so. Further, there is nothing on the record to show that this appellant had handled blood stained knife found near the dead body of the deceased, Hira Devi. (f). Thus, there is no direct evidence against the appellant in this case. The position of law is that where the evidence is over whelming the motive becomes irrelevant but where the evidence against the accused is only circumstantial motive becomes relevant. In the present case there was absolutely no motive on the part of the appellant to commit the murder of his deceased wife, Hira Devi. 12 Thus, the above inherent improbability and uncertainty certainly affect the testimony of the eye witnesses, PW-2, Vijay Kunwar and PW-3, Shambhu Kunwar. In my view, it would not be proper to accept their evidence for the conviction of the appellant. The appellant, is therefore, entitled to the benefit of doubt and he is acquitted of the charge framed against him. 13. In the result, this appeal is allowed. The order of conviction and sentence passed against the appellant is set aside. The appellant, in custody, is set at liberty forthwith, if not wanted in any other case. 14. The learned counsel, Miss. Bela appointed as amicus curiae deserves appreciation in assisting the Court in hearing of this appeal. She will get fee from Patna High Court Council of Legal Aid and Advice.