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2005 DIGILAW 279 (PAT)

Atma Ram @ Atma Ram v. State of Bihar

2005-03-10

body2005
M.L.VISA, J.:- This appeal by sole appellant Atma Ram @ Atma Ram Chamar is directed against the judgment dated 22.06.2001 and order dated 23.06.2001 passed by IIIrd Additional Sessions Judge, Siwan in Sessions Trial No. 252 of 1990 convicting and sentencing the appellant to undergo imprisonment for life under Section 302 of Indian Penal Code (in short "I PC"). 2. The case of prosecution, in short, is that on 11.08.1990, informant Chaukidar Phulena Manjhi (PW 4) got information that appellant was assaulting his wife. On receipt of this information, the informant went to the house of appellant from his Mahal and saw the appellant assaulting his wife. At the same time, Dhanukdhari Rai (PW 6), Nizamuddin Mian (PW 3), Chander Raut (not examined) and other villagers also reached the house of appellant and saw the appellant assaulting his wife and the appellant, by putting his leg "on the neck of his wife, pressed it and, committed her murder. After that, the appellant tried to flee away but informant, with the help of villagers, caught hold of him. The informant, thereafter, went to Police Station where he reached at about 2 O'clock on 12.08.1990 and his Fard-e-bayan was recorded by Assistant Sub-Inspector B.N. Prasad (not examined) and a formal first information report under Section 302 of I.P.C. was drawn. About the motive, the informant, in his Fard-e-bayan, stated that because the wife of informant was ugly so he wanted to get rid of her so that he could marry another woman. After investigation, Police submitted charge-sheet against appellant. Cognizance of the case was taken and the case was committed to the Court of Session where charge under Section 302 of I.P.C. was framed against the appellant and as he denied the charge so he was put on trial and after trial, he was found guilty and was convicted and sentenced, as indicated above. The case of appellant, as it appears from the trend of cross-examination is of complete denial of charge and his false implication. No witness has been examined on his behalf. 3. In order to prove its case, prosecution has examined six witnesses. Phulena Manjhi (P.W. 4) is informant. Dr. Anil Kumar (P.W. 5) is the doctor who is said to have held autopsy on the dead body of wife of appellant. No witness has been examined on his behalf. 3. In order to prove its case, prosecution has examined six witnesses. Phulena Manjhi (P.W. 4) is informant. Dr. Anil Kumar (P.W. 5) is the doctor who is said to have held autopsy on the dead body of wife of appellant. Hiraman Choudhary (P.W. 1), Motilal Yadav (P.W. 2) and Dhanukdhari Rai (P.W. 6) have not supported the case of prosecution and they have been declared hostile. Nizamuddin (P.W. 3) is a tendered witness. 4. In this case, there is evidence of informant Phulena Manjhi (PW 4) only who has deposed about the case of prosecution. He, in his examination-in-chief, has said that at about 5 PM when he was on duty at 'Dakkhana', he received information that the appellant was assaulting his wife and when he went to the house of appellant, he saw him assaulting his wife and P Ws 3, 6 and some other persons, who were present there, were asking the appellant not to assault his wife but appellant was not listening to them and in his presence, appellant put his leg on the neck of his wife and pressed it resulting in her death and when he tried to run away, he was caught by persons present there including him. He has proved his signature (Exhibit-1) on his Fard-e-bayan but his cross-examination shows that he has said that when he entered the village of appellant, he heard hulla that wife of appellant had already died and, thereafter, when he went to the house of appellant, he saw four persons present there and he also saw the dead body of wife of appellant kept on a cot and, thereafter, he went to Police Station and at the house of appellant, he had no talk with anybody. His evidence that after receipt of information, he had gone to the village of appellant on foot and it took about half an hour in reaching there coupled with the fact that when he reached the house of appellant, he saw the dead body of his wife kept on a cot clearly suggests that he is not an eye witness to the occurrence and when he was on duty at Dakkhana, he received information about the assault by appellant on his wife and, thereafter, he went to the village of appellant on foot which took half an hour's time and in between this time, the wife of appellant had already died. 5. The Court below, considering the evidence of this witness as well as observing that there is the medical evidence on record showing that the death of wife of appellant was homicidal and, thereafter, inquest report was prepared, has found the appellant guilty. Cross-examination of Dr. Anil Kumar (PW 5), the doctor who is said to have held autopsy on the dead body of wife of appellant could not be completed because on 20.2.1993 when this witness was examined and cross-examined in part, his cross-examination was deferred at the prayer of defence and, thereafter, several attempts were made by issuing summons upon him but he did not appear for further cross-examination which is mentioned in the judgment itself. The Court below has observed that cross-examination of PW 5 could not be completed due to fault of appellant or his lawyer and it has taken into consideration the post mortem examination report (Exhibit-2). In our view, this approach of Court below is not correct because once it allowed the prayer of defence and adjourned the further cross-examination of PW 5 then it was the duty of prosecution to produce him for further cross-examination. For the sake of argument, if evidence of PW 5 is considered, it simply goes to show that death of wife of appellant was homicidal and it in no way suggests any circumstance against appellant. 6. Considering the entire evidence on record, we find that the evidence of informant, who is solitary witness in this case, does not inspire confidence that he is an eye witness to the occurrence because of his admission made in his cross-examination. We, therefore, find that conviction of appellant cannot be upheld. 7. 6. Considering the entire evidence on record, we find that the evidence of informant, who is solitary witness in this case, does not inspire confidence that he is an eye witness to the occurrence because of his admission made in his cross-examination. We, therefore, find that conviction of appellant cannot be upheld. 7. In the result, this appeal is allowed and the judgment and order of Court below convicting and sentencing the appellant is hereby set aside. 8. Since the appellant is in custody, he is ordered to be released forthwith from jail custody, if not required in any other case. I agree.