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2004 DIGILAW 86 (PAT)

Bigan Prajapat v. State Of Bihar

2004-01-21

BRAJ NANDAN PRASAD SINGH, SACHCHIDANAND JHA

body2004
Judgment Sachchidanand Jha, J. 1. The sole appellant of this appeal has been convicted under Sec. 302 of the Indian Penal Code and sentenced to imprisonment for life for having killed Anchhi Devi, his wife in the night of 22/23.9.1993 at village Maraha within Dumaria Police Station of Gaya district. 2. The prosecution was set in motion by the deceaseds father, Somar Prajapat. On 13.9.1993 at 12.00 noon he made a fardbeyan to S.I. J.L. Das of Dumaria Police Station stating that his daughter Anchhi Devi was married to the appellant about 20 years ago. Soon after the marriage the appellant started ill-treating her. Infact, after five years of marriage he married again in village Bhagia. After panchayati he agreed to keep Anchhi Devi. Though she started living with the appellant, ill-treatment continued. In course of time two daugh-ters and a son were born to her. At the time of occurrence again she was preg-nant. At about 7 a.m. he learnt from two persons of village Maraha that his daughter had been killed by the appellant. Hearing this he went to the appellants house and found Anchhi Devi lying dead. The villagers told him that she had been strangulated to death by the appellant. 3. On the basis of said fardbeyan Dumaria P.S. Case No. 37/93 was regi-stered and the investigation commenced. After completing the formalities charge-sheet was submitted against the appellant and he was put on trial. 4. At the trial the prosecution examined 7 witnesses to prove its case. PW 1 Rajo Devi co-villager of the appellant, stated that she did not know as to who had killed the deceased. She also denied that the appellant used to assault. She denied to have made statement to the police. PW 2 Sita Sao, husband of PW I, stated that he had heard that appellant used to assault his wife, the deceased. However, he was not aware of the cause of her death. PW 3 Raghunandan Prasad was examined as formal witness on the point of inquest. PW 4 Somar Prajapat is none else than the informant himself. He briefly reiterated his fardbeyan version. It may be stated that all that he had stated was hearsay. He did not claim any personal knowledge about the circum-stances leading to the deceaseds death. PW 5 Brij Mohan Prasad another co-villager of the appellant, was declared hostile. PW 4 Somar Prajapat is none else than the informant himself. He briefly reiterated his fardbeyan version. It may be stated that all that he had stated was hearsay. He did not claim any personal knowledge about the circum-stances leading to the deceaseds death. PW 5 Brij Mohan Prasad another co-villager of the appellant, was declared hostile. PW 6 Balo Devi is daughter of deceased and the appellant. The trial Court has mainly relied on her evidence to convict the appellant and therefore we will refer to her evidence in detail. PW 7 Dr. Arvind Prasad who had performed autopsy of the dead body proved the post-mortem report. 5. PW 6 in her evidence stated that while she was sleeping in the house she heard her mother crying for help. She got up and wanted to come out from the room but could not as the room was bolted from outside. Alongwith her, her younger sister was also sleeping. When she came out of the room in the morning she found that her mother had been strangulated to death on the verandah. She started crying and raised shouts. The villagers assembled. The police also came. The police took her statement. She further stated that in the evening preceding the occurrence, her father i.e. the appellant had threatened her mother to kill her. Her father had contracted another marriage, and he always asked her mother to go to her parents house. As she did not go to parents house he killed her. She also stated that prior to the occurrence also the appellant used to beat her mother which had led to panchayati. The panchas had given verdict asking the appellant to keep both the wives. This is all that she stated in her examination-in-chief. In cross-examination her attention was drawn to her statement before the police that she came to the place of occurrence after coming to know about the occurrence when she found her mother dead. The panchas had given verdict asking the appellant to keep both the wives. This is all that she stated in her examination-in-chief. In cross-examination her attention was drawn to her statement before the police that she came to the place of occurrence after coming to know about the occurrence when she found her mother dead. Her attention was further drawn to her previous statements to the effect, inter alia, that before the police she had not stated that she was sleeping in the room closing the door from inside; that her mother cried for help; that the room (in which she was sleeping) was bolted from outside; and that when she came from her sasural, seeing her mother dead, she thought that she might have been killed by her father i.e. the appellant. 6. Relying on these contradic-tions/material omissions in the evidence of PW 6 it was submitted on behalf of the appellant that there is no consistency with her earlier version before the police and all that she had then stated was that she suspected that her father had killed her mother. We find the submission of the counsel to be well founded. As seen above, PW 6 in her earlier version before the police stated that she was in her sasural situated 2 kms. away from the village of occurrence, and when she came on hearing about the incident she found her mother dead. She suspected her father to be responsible for her death. The circumstances appearing from the record no doubt create suspicion that the appellant might have killed the deceased-considering his past conduct and relationship with the deceased, but it is well settled rule of evidence that suspicion howsoever, cannot take the place of proof. If we may say so, that has come against the appellant is strong suspicion on the basis of which his conviction cannot be upheld. 7. In the result, the appeal is allowed. The conviction and sentences awarded to the appellant is set aside and he is acquitted of the charge. He is in custody. He is directed to be released forthwith, if not wanted in any other case.