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2006 DIGILAW 448 (JHR)

Garbhu Mandal v. State of Bihar (now Jharkhand)

2006-04-24

N.DHINAKAR, R.R.PRASAD

body2006
JUDGMENT : By Court.-The appellants challenge their conviction and sentence in this appeal. They were tried under Section 302 read with 34 of the Indian Penal Code and 201 of the Indian Penal Code by the Sessions Judge and finding them guilty, as charged, each one of them was sentenced to imprisonment for life under Section 302 read with 34 of the Indian Penal Code. No separate sentence was awarded under Section 201 of the Indian Penal Code by the Sessions Judge. 2. The case of the prosecution is as follows: The deceased Geeta Devi was the sister of Raj Kumar Choudhary. Before her marriage, she was living alongwith her' brother at Amarpur village. After the marriage, the deceased was living with the 2nd appellant in the village Murgiachak and the 1st appellant is the father of the 2nd appellant. The deceased was complaining to PW-9 that the 2nd appellant and his family members are not treating her properly. She always used to complain about the conduct of the 2nd appellant, whenever PW-9 used to visit his sister. On 27.11.1994, when PW-9 was harvesting paddy crop, he was informed by Shaligram Mandai and Umesh Thakur that they have heard about the death of Geeta Devi. On getting the said information from the above two, PW-9 went to the village where his sister was living with her husband. He found Bisu Mandai and his parents. PW-9 questioned them as to the whereabouts of his sister, Geeta Devi, as she was not found in the house. They could not given any information about the whereabouts of Geeta Devi. PW-9 went in search of his sister and was entertaining a suspicion that his sister would, have been killed. Local villagers informed him that on the night of 23/ 24.11.1994, the appellants have murdered the deceased by joining with Ram Swaroop Mandai, Sk. Jamal, Naresh Mandai and the mother of the 2nd appellant and that after the murder they have hidden the dead body some where. PW-9 went in search of his sister and while he was in search of his sister, at Dholia river, he found heap of earth arranged afresh. On suspicion, he removed the earth and found a gunny bag and when the gunny bag was opened, he found the dead body of his sister. He went to the police station and laid Fardbayan, Ext. On suspicion, he removed the earth and found a gunny bag and when the gunny bag was opened, he found the dead body of his sister. He went to the police station and laid Fardbayan, Ext. 2, on the basis of which formal FIR was registered and the investigation in the crime was taken up by PW-10, Md. Anwar Khan. He conducted inquest by preparing the Inquest report, Ext. 3, and sent the dead body for postmortem. 3. On receipt of the requisition and the dead body, PW-11, Dr. Satyendra Mishra, conducted autopsy. He did not find any external injury on the dead body. He found tongue protruding out and mouth was open. On dissection of the dead body, the doctor noticed laceration on pares trachea muscle. Cervical vertebrae was not fractured but trachea and esophagus were full of frothy secretion. The doctor issued Ext. 4, the postmortem certificate, with his opinion that the death would have been on account of asphyxia due to strangulation. 4. After the completion of investigation, final report was filed and the appellants denied the circumstances, put against them under Section 313 of the Code of Criminal Procedure. 5. The learned counsel appearing for the appellants submits that in the absence of any legal evidence, the Trial Judge was not justified in convicting the appellants, merely on the basis of the evidence of PW-9, whose evidence will at best shows that the 2nd appellant and the deceased was not leading a happy married life. 6. We have heard Mrs. C. Prabha, learned A.P.P., appearing for the State, on the above contentions. 7. Though, there is no dispute that Geeta Devi died on account of homicidal violence as the same has not only been established through the evidence of Dr. Satyendra Mishra, PW-11, who conducted the autopsy and issued post-mortem certificate, Ext. 4, but also from the fact that the dead body was taken out from a gunny bag, which was found burried, there is dispute as to the complicity of the appellants in the crime. 8. The prosecution before the trial court, in order to establish that the appellants committed the murder of the deceased, examined PW-9, Raj Kumar Choudhary, who is the brother of the deceased, Geeta Devi. 8. The prosecution before the trial court, in order to establish that the appellants committed the murder of the deceased, examined PW-9, Raj Kumar Choudhary, who is the brother of the deceased, Geeta Devi. His evidence is only to the effect that the deceased was complaining to him about the ill treatment given by the 2nd appellant and his family members, but his evidence does not disclose any other fact. According to him, on 27.11.1994 while he was harvesting paddy crops, he was informed by two villagers that his sister is dead. He has further stated that when he went in search of his sister to the village where his sister was living with her husband, he could not find her and according to him, he ultimately found the dead body of his sister, Geeta Devi, near Dholia river. The above evidence of PW-9 does not conclusively show that the appellants committed the murder. Though, there may be some suspicion on the part of PW-9 to suspect that the deceased would have been murdered by the appellants, there is no legal evidence to prove that the appellants committed the murder. 9. A faint attempt was made by the counsel, appearing for the State, that the 1st appellant confessed his guilt to the villagers. But, on going through the evidence of PW-9, we find that the statement alleged to have been made by the 1st appellant to the villagers will not fall within the ambit of Section 24 of the Evidence Act, since even, according to PW-9, the 1st appellant was threatened by the villagers and that thereafter he took the entire blame upon himself. If the 1st appellant had confessed his guilt in the crime, on being threatened by the villagers, then we will not see as to how the prosecution had come out with a case that the 2nd appellant, Bisu Mandai, committed the murder of his wife, Geeta Devi. 10. In the above background, we do not attach any importance to the said statement, alleged to have been given by the 1st appellant to the villagers, which will not attract Section 24 of the Evidence Act, but on the contrary cuts the very root of the prosecution that the deceased was murdered by Bisu Mandal. We, therefore, set aside the conviction and consequence sentence imposed upon the appellants by allowing the appeal. The appellant no. We, therefore, set aside the conviction and consequence sentence imposed upon the appellants by allowing the appeal. The appellant no. 1 is on bail; he is discharged from the liability of the bail bonds. The appellant no. 2, Bisu Mandai, who is in jail, shall be released forthwith, unless he is wanted in connection with any other case(s).