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2004 DIGILAW 335 (PAT)

Hardeo Sahni v. State Of Bihar

2004-03-23

AFTAB ALAM, B.K.JHA

body2004
Judgment AFTAB ALAM and B.K.JHA JJ. 1. The appellant Hardeo Sahni Stands convicted under Sections 302 and 201 of the Penal Code and sentenced to undergo rigorous imprisonment for life and three years respectively under the two sections for killing his chachi Most. Mandodri and letting her body into the river to flow down with it. The sentences awarded to him by the Trial Court were directed to run concurrently. 2. According to the prosecution case, in order to grab the lands of his widow chachi Most. Mandodri, the appellant got a transfer deed brought into existence by putting up someone else in her place. When Most, Mandodri came to know about the fraudulent transfer deed, she instituted a case at Motihari (Sadar) Police Station. In that connection a notice had come asking her to give her thumb impression (for comparison with the thumb mark on the deed of transfer). But one day before the date indicated in the notice, while Most. Mandodri had gone to the river flowing by the side of the village for morning ablution, the appellant killed her there and let her body into the river to flow down with it. 3. The prosecution case was instituted on the basis of a FIR lodged by Dasrath Sahni (PW 8) at Motihari (Sadar) P.S. on 14.10.1996 at 11.30 a.m. Dasrath Sahni went to the police station along with one Badri Sahni and handed over the appellant to the police, making the statement that was recorded as FIR. In the FIR Dasrath Sahni (PW 8) stated that in the morning while he was washing his face at his house in the village, Mauni Kumar, aged about eight years (PW 4) came there and said that the appellant was blockading Most. Mandodri on the bank of the river. He (the informant) along with one Sharvan Sahni then came running to the ghat. There they found the appellant taking bath but Most. Mandodri was not to be seen. In the mean while on hulla being raised villagers assembled by the side of the river in large numbers and started looking for her. At some distance towards east the villagers found the body of Most. Mandodri drowned in water. On the discovery of the body a nulla was raised and then the informant too rushed to that spot and saw the dead body of Most. Mandodri. At some distance towards east the villagers found the body of Most. Mandodri drowned in water. On the discovery of the body a nulla was raised and then the informant too rushed to that spot and saw the dead body of Most. Mandodri. The villagers brought out the body and she was found to be dead. Then the people started looking for the appellant and he after coming out of the river started fleeing away. He was given a chase and was finally caught by the villagers. When asked whether he had killed Most. Mandodri and had thrown the body into the river, he started abusing them. On this the informant and some other villagers caught him and brought him to the police station for handing him over to the police. The informant further stated that the body of Mandodri was lying on the river bank. He further stated that Hardeo had got the lands of Mandodri fraudulently transferred in his favour and a case in that connection was lodged at Motohari Town P.S. and a notice was received by Mandodri asking her to come to the police station on 15.10.1996 for giving her thumb impression. For this reason the appellant had killed her. He also said that Mandodri was the chachi of the appellant but for a long time they were living separately. He also said that a number of villagers had witnessed the occurrence who would speak about it on being asked. He concluded by claiming that the appellant had killed Most. Mandodri on account of land dispute. His statement recorded by the police as FIR was read out to him and on finding it correctly recorded, he put his signature on it. Another villager Badri Sahni also put his signature on the FIR. 4. On investigation the police submitted charge-sheet against the appellant who was put on trial on charges under Sections 302 and 201 Of the Penal Code. The prosecution in support of its case examined ten witnesses. PW 3 Sharvan Sahni was initially examined on 1.7.1998. On that date no one appeared on behalf of the accused to cross-examine him and, a therefore, he was discharged. Later, a petition filed by the defence for his recall was allowed by the Trial Court and by order, dated 6.3.1999 he was recalled for cross- examination. PW 3 Sharvan Sahni was initially examined on 1.7.1998. On that date no one appeared on behalf of the accused to cross-examine him and, a therefore, he was discharged. Later, a petition filed by the defence for his recall was allowed by the Trial Court and by order, dated 6.3.1999 he was recalled for cross- examination. The prosecution, however, failed to produce him for cross-examination and in those circumstances the Trial Court declined to take his deposition into consideration. This leaves nine Witnesses on behalf of the prosecution. 5. PW 4, Mauni Kumari and PW 7 Tileshwar Sahni are the two eye-witnesses. Mauni Kumari saw the occurrence only partially but Tileshwar Sahni claims to have seen the appellant killing Most. Mandodri while they were together in the river. Four witnesses, that is to say, the informant, (PW 8) and PWs 2, 5 and 6 are the villagers who came to the river ghat on hearing from Mauni Kumari that the appellant was holding up Most. Mandodri in the river and was not allowing her to come out. They admittedly did not witness the actual occurrence but came to the river to find the appellant having his bath there and the dead body of Most. Mandodri floating down the river at some distance from him. PW 1 is a formal witness who identified the FIR that was marked as Ext. 2. PW 9 is the I.O. and PW 10 is the doctor who held post- mortem on the body of the deceased Most. Mandodri. 6. According to the doctor he found that the face of the deceased was congested and her eyes were prominent; "bloody fluid" was coming out from the nostrils. Apart from this, the doctor did not find any other external injuries. However, on dissection the doctor recorded the following findings : There was extra-vasation of blood underrnoath the skin interior in the neck; Lyringcal cartiledge was fractured. Hyoid bone was also fractured. Mucosa of Larynx and trachea were congested containing frothy blood stained mucus. Both lungs were congested and muded dark fluid blood on section. Right side of heart was full, containing dark fluid blood while left side of heart was empty. Brain and memoges were congested. Abdominal vicera were entact but congested. Stomach empty. Urinary bladder- empty. Rigor-motis was present." 7. Mucosa of Larynx and trachea were congested containing frothy blood stained mucus. Both lungs were congested and muded dark fluid blood on section. Right side of heart was full, containing dark fluid blood while left side of heart was empty. Brain and memoges were congested. Abdominal vicera were entact but congested. Stomach empty. Urinary bladder- empty. Rigor-motis was present." 7. The doctor gave his opinion that strangulation leading to asphyxia was the cause of death and further stated that the time-gap between death and the post-mortem was 24-36 hours. He identified the post-mortem report prepared by him which was marked as Ext. 5. To a question in the cross-examination he gave the answer that in case a dead body was thrown into water, it would take about 36 hours for it to come to the surface. 8. The medical evidence leaves no room for doubt that Most. Mandodri was killed. It further indicates that she was killed not be drowning but by strangulation and that her dead body was let into the water only after she had died. The question now to be examined is how far the prosecution has been able to establish that the appellant had killed her. This takes us to examine the other prosecution witnesses. 9. PW 6 who is a co-villager stated that he heard that the appellant was killing Most. Mandodri in the river. He along with others went to the river bank. There he saw neither Mandodri nor Hardeo. People started searching for Mandodri in the river and her dead body was found in the river about 500 yards in the east. In his cross- examination (PW 8) said that the dead body of Mandodri was found floating in the river; her dead body was taken out of, the river and was kept on its bank. Then people started searching for the appellant and it was learnt that he was fleeing away. The witness said that he himself did not go after him. Other chased him and he later came to learn that the appellant was caught near Mali village. It is, thus, to be seen that PW 6 is only a witness in regard to discovery of the body of Mandodri in the river. On other aspects of the matter, he is only a hear-say witness. 10. Other chased him and he later came to learn that the appellant was caught near Mali village. It is, thus, to be seen that PW 6 is only a witness in regard to discovery of the body of Mandodri in the river. On other aspects of the matter, he is only a hear-say witness. 10. This leaves the two eye-witnesses, PWs 4 and 7 and the three other prosecution witnesses, PWs 2, 5 and 8 for serious consideration. But before proceeding to examine those witnesses, it would be appropriate to bear in mind certain facts coming to light from the prosecution evidence. From the evidence on record, it appears that the prosecution party and the informant equally had an eye over the lands of Most. Mandodri. The informant and the appellant had fought a proceeding under Sections 144 and 145, Cr PC in regard to the lands during the life time of Most. Mandodri herself. In that proceeding both the informant and the appellant asserted right over the land on the basis of documents purportedly executed by Mandodri (PW 8, para 23), Panna Lal who is the own brother of the informant had announced that he had got transfer deeds executed by Most. Mandodri, Panna Lal is the younger brother of the informant and they lived in jointness in a family of which the informant was the karta (PW 8, paras 12 and 13). 11. PW 5 stated that he was not on speaking term with the appellant from before the occurrence. This was because of the dispute over the lands of Most. Mandodri (PW 5, para 7). 12. From the prosecution evidence, it is, thus, evident that the informant and the appellant were fighting over the lands of Most. Mandodri during her life time itself. The informant and most of the prosecution witnesses who are related or closely associated with him were, thus, not only enmical to the appellant but had a very strong interest in his implication in this case. Their evidences must, therefore, be considered with great care and caution. 13. Both the eye-witnesses in this case appear to be child witnesses. PW 4 Mauni Kumari was described in the FIR as aged about eight years. In the Trial Court about a year and nine months after the occurrence her age was recorded as ten years. Their evidences must, therefore, be considered with great care and caution. 13. Both the eye-witnesses in this case appear to be child witnesses. PW 4 Mauni Kumari was described in the FIR as aged about eight years. In the Trial Court about a year and nine months after the occurrence her age was recorded as ten years. The age of the other eye-witness PW 7 was recorded by the Trial Court as thirteen years. 14. PW 4 Mauni Kumari in her brief examination-in-chief simply stated that on the date of occurrence she along with Sonarkali had gone to the field of Sitaram for collecting sugarcane leaves. The field was close to Sikrahna river. She saw that the appellant was holding the deceased Mandodri by her wrist. She then ran to the village and told people there that Hardeo was holding Mandodri by her wrist. In her cross-examination she described the informant as her cousin. 15. PW 7, of course, claimed to have witnessed the whole occurrence. In his examination-in-chief he stated that on the date of occurrence at about 7 in the morning he had gone to the river for cutting earth. There he heard the cry of Most. Mandodri. On hearing the cry of Mandodri there, he raised his head and saw that the appellant was killing her by pressing her neck. After killing her he threw her into the river. Thereafter hulla was raised in the village and the villagers came to the river whereupon Hardeo Sahni stared fleeing. He was caught by the villagers and was taken to the police static .. According to PW 7, while cutting earth he was accompanied by Ram Sewak Sahni. It may be noted that neither Sonarkali who was with Mauni Kumari nor Ram Sewak who was with Tileashwar were examined as PWs and the informant PW 8 in his cross-examination stated that Sonarkali and Tileshwar Sahni were gained over by the defence. 16. Though PW 7 claims to have seen the appellant actually killing Most. Mandodri, I feel some hesitation in accepting his testimony. Though a child witness (aged only about thirteen years), he appears to be quite street smart. In his cross-examination he said that on receiving the notice he had come from his village for deposing before the Court alone and all by himself. Mandodri, I feel some hesitation in accepting his testimony. Though a child witness (aged only about thirteen years), he appears to be quite street smart. In his cross-examination he said that on receiving the notice he had come from his village for deposing before the Court alone and all by himself. He further said that he had come from his village to the town by train, without ticket and he would go back in the evening in the same manner. 17. It may further be noted that PW 7 was the only eye-witness of the occurrence. The only person, apart from Tileshwar Sahni, who claims to hage actually seen the appellant killing Most. Mandodri by pressing her neck. It was, therefore, natural for him to come forward at the earliest and his statement in the natural course of events should have been recorded by the I.O. in course of his first visit to the place of occurrence/village. But that does not appears to be so. From the case diary it appears that the I.O. came to the village at 1.30 p.m. on 14.10.1996 and on that date he recorded the statements of a number of villagers but the statement of PW 7 Tileshwar Sahni was recorded after thirteen days of the occurrence on 27.10.1996. It may be noted here that the post-mortem of the deceased was held on 15.10.1996, the day following the occurrence and the post-mortem report was received by the I.O. on 26.10.1996. In other words, it had come to light that Most. Mandodri was not killed by drowning or forcible drowning but she was killed by strangulation and from this arose the need for a witness who might have seen the neck of the deceased being pressed and PW 7 appears to have filled up that slot. 18. As noted above, I find myself completely unable to uphold the conviction of the appellant for the serious offence of murder on the testimony of PW 7 unless his testimony was corroborated by other reliable evidence. But the corroboration that comes from the other prosecution witnesses [the informant PW 8, PWs 2 and 5, highly interested witnesses, enimical towards the appellant) hardly appears to be satisfactory. There are a number of in-con-sistencies, omissions and contradictions in their evidences. It is noted above that Mauni Kumari, PW 4 had told the villagers that the appellant was holding Most. There are a number of in-con-sistencies, omissions and contradictions in their evidences. It is noted above that Mauni Kumari, PW 4 had told the villagers that the appellant was holding Most. Mandodri in the river by her wrist. PW 2 stated that she came running from the river and said that the appellant was killing and drowning Most. Mandodri by pressing her neck. PW 5 stated that Mauni Kumari and Sonarkali came running from the river and said that Hardeo Sahni had killed his chachi Mandodri by pressing her neck and had thrown her into the river. 19. The informant, PW 8 said that when they arrived at the river, they found the appellant having his bath there. PW 2 said that on coming to the river he could see neither the appellant nor Most, Mandodri. PW 5 said that on coming to the river, he saw the appellant fleeing away towards the west (even before the discovery of the body). PW 2 deposed before the Court that on being apprehended the appellant confessed his guilt before the villagers. He had not made any such statement before the I.O. and he accepted the fact in his cross- examination. He further stated that on the discovery of the body, the informant expressed his suspicion over the appellant and then the villagers started searching him. PW 2 further stated that Dasrath Sahni identified the spot in the river from where the body of the deceased was discovered. Dasrath Sahni seems to distance himself from the discovery of the body and according to him the villagers looking for the body found it in the river at a distance of 500 yards towards the cast from theghat 20. PW 5 denied before the Court that Most. Mandodri had stayed at his house during the night previous to the occurrence. But the I.O. confirmed that in his statement before him PW 5 had said that on coming from village Lakharia on 12.10.1996 Mandodri had stayed at his house. The body of Mandodri was found by the I.O. lying in the bansbari of PW 5 where according to the prosecution witnesses, it was kept after being taken out of the water. 21. In view of the inconsistencies and contradictions in the prosecution evidence, the possibility cannot be ruled out that Most. The body of Mandodri was found by the I.O. lying in the bansbari of PW 5 where according to the prosecution witnesses, it was kept after being taken out of the water. 21. In view of the inconsistencies and contradictions in the prosecution evidence, the possibility cannot be ruled out that Most. Mandodri was killed by someone else in some other manner and the prosecution in order to take advantage tried to fasten the guilt on the appellant. I am, therefore, of the view that on the basis of the evidence on record, it would not be quite safe to uphold the conviction of the appellant for the serious charge of murder. He appears to be entitled to the benefit of doubt. 22. In the result, I accept the appeal and set aside the judgment of conviction and the order of sentence passed against him by the Trial Court. 23. In the result, this appeal is allowed and the appellant is directed to be released forth-with, unless he is wanted in connection with some other case, 24. I agree.