Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 347 (JHR)

Asha Devi v. State Of Bihar (Now Jharkhand)

2006-04-10

N.DHINAKAR, RAKESH RANJAN PRASAD

body2006
JUDGMENT 1. Asha Devi, the appellant, was arrayed as A1 along with Singheshwar Mahato, her father and Balmiki Mahato, her relative, who were arrayed as A2 and A3 respectively, Page 1066 before the Sessions Judge. They were charged for an offence under Section 302 read with Section 34 I.P.C and under Section 201 I.P.C. The allegation against the appellant and two other acquitted accused before the trial court is that between 25.5.1990 and 26.5.1990, they murdered Anil Kumar Mahato aged about 10 or 12 years and buried the body inside the house with a view to screen the offence. The prosecution before the trial court, in order to establish both charges, examined P.W.I to P.W.16. The learned Trial Judge, on the evidence adduced both oral and documentary, while acquitting Singheshwar Mahato A2 and Blmiki Mahato A3, found the appellant alone guilty and sentenced her to imprisonment for life under Section 302 read with Section 34 I.P.C. Though the Trial Judge found her guilty under Section 201 I.P.C, no separate sentence was awarded. The present appeal is against the aforesaid conviction and sentence. 2. The facts as could be discerned, from the oral and documentary evidence, are as follows:- Asha Devi, the appellant herein, is the wife of P.W.14 Nand Kishore Mahato. Through his second wife, P.W.14 Nand Kishore Mahato had two sons namely Anil Kumar Mahato (deceased) and P.W.5 Sunil Kumar as well as a daughter named Kalpana. After the marriage, which took place in the year 1989, the appellant was not treating the deceased Anil Kumar Mahato in the manner expected of her and like all most all step-mothers, there was stepmotherly treatment towards Anil Kumar Mahato. It is the case of the prosecution that P.W.14 Nand Kishore Mahato left his village on the afternoon of 24.5.1990 to attend a Tilak ceremony at Baghakole. He returned to his house on the afternoon of 26.5.1990. He went to bed. At about 8.00 p.m., he woke up and wanted to see his two sons as they were not seen in the house. He asked his third wife, the appellant, as to the whereabouts of the boys. The appellant informed her husband, P.W.14, that P.W.5 Sunil Kumar and Kalpana had gone to attend classes and that Anil Kumar Mahato, the deceased in this case, has left on the previous morning and has not returned home. He asked his third wife, the appellant, as to the whereabouts of the boys. The appellant informed her husband, P.W.14, that P.W.5 Sunil Kumar and Kalpana had gone to attend classes and that Anil Kumar Mahato, the deceased in this case, has left on the previous morning and has not returned home. As it was night, P.W.14 could not go in search of his son Anil Kumar Mahato. On the next day, he went to the village - Saraiya, the native place of his second wife, but could not find the boy. He thereafter returned home via Ghorichak and on the way, he searched for his son. He also requested his villagers to go in search of his son. Neither P.W.14, nor the villagers could trace Anil Kumar Mahato. While the search was continuing, foul smell was emanating from the house of P.W.14. P.W.14, therefore, questioned the appellant as to why the foul smell is emanating in the house. The appellant, Asha Devi, informed P.W.14 that the foul smell may be due to the death of some rat or mole and also promised to clean the room. The foul smell continued even thereafter. On 3.6.1990, P.W.14 with the help of P.W.2 Shiv Narain Mahato, P.W.7 Girish Mahato and P.W. 13 Dasrath Mahato tried to find out from where the foul smell is emanating. At the North-Eastern corner of the room, they found a box. They pushed the box and found the ground to be uneven. They also noticed at that the ground to be soft and moist. Thereafter they dug out and found the dead body of Anil Kumar Mahato, which was seen beheaded. The severed head as well as the torso were in the pit. The villagers came to know of the unearthing of the dead body from the house of the appellant. P.W. 11 Subodh Dhoki, the Choukidar, was sent for. He, in turn, sent for Lalmatia police station. On receipt of the said information, P.W. 16 Baliram Prasad, Officer-in-charge of the said police station, reached the scene of occurrence Page 1067 accompanied by Sub-Inspector and Constable. The dead body of Anil Kumar Mahato was taken out from the pit. Inquest was conducted by P.W. 16, in presence of witnesses. Inquest report is Ext. 1. After the inquest, the body was sent to the hospital with a requisition to conduct autopsy. 3. The dead body of Anil Kumar Mahato was taken out from the pit. Inquest was conducted by P.W. 16, in presence of witnesses. Inquest report is Ext. 1. After the inquest, the body was sent to the hospital with a requisition to conduct autopsy. 3. On receipt of the requisition, P.W. 15 Dr. K.N. Choudhary attached to the Sadar Hospital at Gooda, conducted autopsy on the dead body of Anil Kumar Mahato. He found him to be a boy aged 10 years. At the time of post mortem, he noticed an incised wound on the neck at the level of C 2 and C 3. The whole circumference was cut away and all the structures were also cut away. The muscle mass was found partly lost and maggots were seen in plenty. At some places of the dead body, earth particles were found adhered showing evidence of being engraved inside the earth. The scalp muscles and hairs were detached from cranium bone. Twenty teeth were found in the mouth. P.W.15, the Doctor, issued Ext.4, the post mortem certificate, with his opinion that death is on account of shock, hemorrhage and asphyxia due to severing of the head from the body and that the said injury could have been caused by some sharp cutting instrument. 4. In the meantime, P.W.6, who was continuing with his investigation, examined witnesses and after the completion of it, filed final report against the appellant and the other two accused, who were acquitted by the trial court. The appellant, when questioned under Section 313 Cr.P.C, denied all the incriminating circumstances. 5. Learned Counsel for the appellant, who was appointed as Amicus Curiae, strenuously contends that since the appellant was the step-mother of the deceased, P.W.14 had given false fardbeyan, Ext.3, at the police station implicating the appellant with the crime. He further submits that P.W.14 was suspecting the fidelity of the appellant and therefore, she was falsely implicated. It is his further submission that the prosecution having relied upon circumstantial evidence, the trial court ought to have seen that the circumstances proved by the prosecution did not conclusively establish that the appellant murdered the boy. On the above submission, we have heard Mrs. Banani Verma, learned Counsel appearing for the State. 6. It is not in dispute that Anil Kumar Mahato aged about 10 years died and died on account of homicidal violence. On the above submission, we have heard Mrs. Banani Verma, learned Counsel appearing for the State. 6. It is not in dispute that Anil Kumar Mahato aged about 10 years died and died on account of homicidal violence. The Doctor, P.W.15, conducted autopsy and also issued the post mortem certificate. On his oral evidence and on the documentary evidence, we have no hesitation in coming to the conclusion that Anil Kumar Mahato died on account of homicidal violence. 7. The prosecution, in order, to establish that the appellant committed the murder, relied upon circumstantial evidence as the occurrence was not witnessed by any person. The first circumstance is the evidence of P.W.14, who, in his evidence, stated that on 24.5.1990 he left his house to attend a Tilak ceremony at Baghakole and retuned on the next day to find his son missing. According to him, he asked his wife, the appellant, as to the whereabouts of his son, Anil Kumar Mahato, to which the appellant replied that Anil Kumar Mahato has left the house on the previous morning and has not returned. This evidence of P.W.14 stands unchallenged. It is, therefore, clear that Anil Kumar Mahato, who was in the house of the appellant on the afternoon of 24.5.1990, was found missing on the afternoon of 26.5.1990 and that when questioned, the appellant stated that the boy has left home on the previous morning, namely, on the morning of 25.5.1990. The said explanation Page 1068 offered by the appellant is false on the face of it, in view of the later exhumation of the dead body of the deceased, Anil Kumar Mahato, from inside the house. The false explanation is an additional link in the chain of circumstances as held by the Supreme Court in the case of Deonandan Mishra v. The State of Bihar. 8. The second circumstance proved by the prosecution is that while P.W.14 and other villagers were searching for the boy on the basis of the statements made by the appellant, P.W.14 noticed foul smell emanating from the house. According to P.W.14, he questioned the appellant as to why the foul smell is emanating from the house, to which the appellant replied that the foul smell is on account of the death of some rat or mole. She also promised to clean the room. According to P.W.14, he questioned the appellant as to why the foul smell is emanating from the house, to which the appellant replied that the foul smell is on account of the death of some rat or mole. She also promised to clean the room. When, in spite of her promise, the foul smell was found continuing, P.W.14 with the assistance of P.W.2 Shiv Narain Mahato, P.W.7 Girish Mahato and P.W.13 Dasrath Mahato tried to find out as from which place the foul smell is emanating in the house. While they were trying to find out the cause, they found a Trunk kept inside the room on the north-eastern corner. It was pushed and they found the earth to be uneven, moist and soft. Therefore, on suspicion, they removed the earth to find the dead body of Anil Kumar Mahato. The body was not even buried deep and by scraping some earth therefrom, they were able to see the dead body. Hence P.W.11 was sent for, who, in turn, sent for the police officers. The fact that the dead body of the deceased Anil Kumar Mahato was found buried inside the house and the dead body was seen by the witnesses is an additional link in the chain of circumstances, indicating the guilt of the appellant. If the deceased left the house on 25.5.1990 as claimed by her, then the dead body could not have been found buried inside the house. The fact that the dead body was lying buried and found inside the house coupled with the answer given by the appellant that foul smell is on account of the death of rat or mole is yet another additional link in the chain of circumstances. It is to be remembered that the appellant was in the house and the deceased was left in her company, when P.W. 14 left the village for another village for the purpose of attending a Tilak Ceremony and that the boy was found missing when P.W.14 returned to his house. In the above background, it is for the appellant to explain as to how the dead body of the deceased Anil Kumar Mahato came to be buried in the house. It is not her case that she was not present in the house. In the above background, it is for the appellant to explain as to how the dead body of the deceased Anil Kumar Mahato came to be buried in the house. It is not her case that she was not present in the house. It is also difficult to believe that some body would have killed the boy and brought and buried the dead body inside the house of the appellant. In fact, the appellant had also no such case that the dead body was brought inside the house and buried by some one. 9. There is yet another circumstance, which will point the guilt of the accused. After the arrival of the police, the appellant was questioned and she pointed a place where blood stains were seen. She also produced a weapon, "Chhimni" (a Dab like instrument made of steel). This statement of the appellant leading to discovery of the weapon also shows that the deceased was murdered by the appellant and the dead body was buried by her inside the house. The contention of the counsel that since P.W.14 was suspecting the fidelity of the appellant, he falsely implicated her with the crime is only to be stated to be rejected. If P.W.14 had been entertaining any suspicion against the appellant, then he would not have left the children in the company of the appellant, when he left the village on 24.5.1990. It is also not possible for us to accept the argument of the learned Counsel that since the appellant happens to be the step-mother of the deceased, she was falsely implicated. There is absolutely no reason and in fact, no reason was suggested to any of the witnesses that P.W.14 falsely implicated the appellant, who is his third wife. Non-examination of other villagers cannot also be considered fatal to the prosecution on the facts and circumstances of the case. It is to be remembered that when the appellant was questioned under Section 313 Cr.P.C, she denied all the incriminating circumstances. The Supreme Court in the case of Jeseph v. State of Kerala reported in 2000 SCC (Cri) 926 held that flat denial of all the circumstances will also be taken as additional link in the chain of circumstances. 10. It is to be remembered that when the appellant was questioned under Section 313 Cr.P.C, she denied all the incriminating circumstances. The Supreme Court in the case of Jeseph v. State of Kerala reported in 2000 SCC (Cri) 926 held that flat denial of all the circumstances will also be taken as additional link in the chain of circumstances. 10. To conclude, we have to say that the prosecution proved the case against the appellant beyond all reasonable doubt since the prosecution established that the deceased, who was left in the company of the appellant, was found missing; that P.W.14 questioned the appellant as to the reasons for the foul smell emanating from the house, for which the appellant gave false reply; that the dead body was found buried inside the house and that the appellant, after arrest, pointed the place where blood stains were noticed by the police and the fact that the appellant produced the weapon coupled with her false statement and total denial conclusively show that the appellant and the appellant alone committed the murder of Anil Kumar Mahato aged 10 years and buried the body inside the house. We therefore of the view that the Trial Judge was justified in convicting and sentencing the appellant as stated earlier. The appeal deserves to be dismissed and is accordingly dismissed.