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2006 DIGILAW 503 (JHR)

Ramesh Pandey v. State of Bihar (Now Jharkhand)

2006-05-01

N.DHINAKAR, RAKESH RANJAN PRASAD

body2006
JUDGMENT 1. The appellants Ramesh Pandey and Ram Chandra Pandey were tried and convicted by the trial Judge under Section 302, IPC. On being found guilty, each one of them was sentenced to imprisonment for life. Jira Munda, who was arrayed as A-3 was also charged, tried and acquitted. The present appeal is by the convicted accused. 2. Ram Chandra Pandey, after filing the appeal died in jail and the Superintendent, Central Jail Hazaribagh sent a letter dated 13.9.2005 to the relatives of Ram Chandra Pandey intimating about his death. Counsel for the appellant, Ram Chandra Pandey submits that since Ram Chandra Pandey died on 13.9.2005, the appeal abates. We have perused the letter sent by the Superintendent, Central Jail, Hazaribagh and from that we find that Ram Chandra Pandey, after filing the appeal died. Therefore, the appeal filed by him abates. This Court has to consider the appeal of the appellant, Ramesh Pandey, who was arrayed as A-l. In this appeal, the appellant, Ramesh Pandey and the appellant, Ram Chandra Pandey, who died pending the appeal and Jira Munda, who was acquitted by the trial Court will be referred as A-1 to A-3 in the same order as they were arrayed before the trial Court. 3. The first accused married Rajni @ Jagni and according to the prosecution, this Rajni @ Jagni was in the habit of running away from the house very often. Prior to 14.5.1992, the deceased, Rajni @ Jagni ran away from the house. She was not seen by anyone. While so, one Shrawan Singh, who was examined as PW 2, was in the land of Lalu. A piece of bone was brought by a dog from a nearby place. PW 2 and other villagers went there and found in the field of Lalu a ditch and felt that some foul smell is emanating from the place. They informed the police officer who was on duty in village Murachkel. He reached the place of occurrence along with constables and choukidar. In the ditch the police officer found bones, sari pieces, blouse pieces and bangles. Radheshyam Ram PW 13 recorded the fardbeyan, Ext. 3 given by PW 2 on the basis of which a crime was registered against unknown persons. The investigation was taken up and the bones were sent for examination. The bones were examined by Dr. Ajit Kumar Choudhary, who was examined as PW 15. Radheshyam Ram PW 13 recorded the fardbeyan, Ext. 3 given by PW 2 on the basis of which a crime was registered against unknown persons. The investigation was taken up and the bones were sent for examination. The bones were examined by Dr. Ajit Kumar Choudhary, who was examined as PW 15. The doctor, after examining the bones, gave his certificate, Ext. 8 stating that he is not in a position to give the details of the age and sex of the person whose bones were sent to him. He was also of the opinion that such bones did not bear any mark of homicidal injury and hence it is not possible to say that the bones were of the deceased lady. 4. During the course of investigation, after the arrest of appellant, Ramesh Pandey, a requisition was given to the Magistrate to record his statement under Section 164, Cr PC. On receipt of the said requisition, A-l was produced before the Magistrate (he was not examined and the statement of the 1st accused said to have been recorded by the Magistrate was marked through a clerk as (Ext. 7). 5. After completion of the investigation, final report was filed against the appellant and the other two accused. When the appellant was questioned under Section 313, Cr PC he denied all the incriminating circumstances. 6. Learned Counsel for the appellants submits that there is absolutely no legal evidence to even remotely suggest that the bones which were seen by PW 2 and recovered by the Police Officer, PW 13 from a ditch in the land of Lalu on 14.5.1992, are the bones of the deceased Rajni @ Jagni. In support of the said contention, learned Counsel relies upon the evidence of the doctor, PW 15, who examined the bones and gave his opinion. He also submits that the statement, Ext. 7 alleged to have been given to the Magistrate by the first accused is exculpatory in nature and the prosecution therefore, cannot rely upon the said statement to find Ramesh Pandey guilty of the offence. His further submission is that there is absolutely no legal evidence much less any evidence to show that Rajni @ Jagni is dead and her bones were recovered on 14.5.1992. We have heard learned Counsel appearing for the State on the above contention. 7. His further submission is that there is absolutely no legal evidence much less any evidence to show that Rajni @ Jagni is dead and her bones were recovered on 14.5.1992. We have heard learned Counsel appearing for the State on the above contention. 7. The case of the prosecution is that Rajni @ Jagni is the wife of the appellant, Ramesh Pandey and that she was in habit of running away from the house very often. Its further case is that she was found missing from the house for sometime and that on 14.5.1992, while PW 1 was in a field, he found a dog bringing a bone from the nearby field. The evidence of PW 2 further shows that he and the other villagers went to the land from where the bones were brought by the dog and they found other bones in the ditch. Later Ext. 3, Fardbeyn, was given to PW 13, who conducted investigation. The fardbeyan, is against unknown persons. In the said fardbeyan, Ext. 3, PW 3 has expressed his suspicion that the bones might be the bones of Rajni @ Jagni since the bangles, sari pieces and other articles were found. In the above background, it is for the prosecution to establish that the bones which were recovered by the police on 14.5.1992 were the bones of the deceased, Rajni @ Jagni. According to the prosecution, the bones were sent to PW 15 who, on examination of the bones, was not in a position to give his opinion even as regards the sex". In view of the evidence of PW 15 we are unable to understand as to how this Court could give, finding that the bones that were recovered by PW 13 are actually the bones of the deceased. So the prosecution failed to establish the corpus delicti. 8. Learned Counsel appearing for the State wanted to rely upon Ext. 7, the statement alleged to have been given by the appellant, Ramesh Pandey to the Magistrate. We have already noticed that Ext. 7 was not proved by the prosecution as it was not marked in the manner prescribed by law. 8. Learned Counsel appearing for the State wanted to rely upon Ext. 7, the statement alleged to have been given by the appellant, Ramesh Pandey to the Magistrate. We have already noticed that Ext. 7 was not proved by the prosecution as it was not marked in the manner prescribed by law. It was marked through a clerk and we are unable to understand as to how a clerk could prove the contents of the document, as he is not competent, and the prosecution did not explain as to why the Magistrate, who recorded the statement of the 1st accused was not examined. Be that as it may. The statement, Ext. 7, which we have perused shows that it is exculpatory in nature. Ramesh Pandey did not even whisper that he committed the murder of his wife, on the contrary he has stated that his wife was murdered by Ram Chandra Pandey. Therefore, the statement is exculpatory as he has only blamed Ram Chandra Pandey and not that he confessed that he committed the murder of his wife. It is worthwhile to remember at this stage that no question was put to him under Section 313, Cr PC that he gave a statement implicating Ram Chandra Pandey as the culprit. Therefore, the statement, Ext. 7 is of no use to the prosecution. The other circumstances on which the prosecution relied upon, is the evidence of PWs 10 and 11. On going through their evidence, we find that there is, absolutely nothing incriminating against the appellant to connect him with the crime. All that the two witnesses have said is that they saw the bones when they were recovered from the ditch. We are also unable to accept the evidence of PW 5, Sister Ruben, who was the In-charge of Child Care Home, Missionaries of Charity for finding the appellant guilty. It is the case of the prosecution that the appellant went there on 1.6.1992 with a child, who was aged about four months and that made an oral declaration to PW 5 that his wife is dead. The appellant denied of having made any such oral declaration to PW 5. It is the case of the prosecution that the appellant went there on 1.6.1992 with a child, who was aged about four months and that made an oral declaration to PW 5 that his wife is dead. The appellant denied of having made any such oral declaration to PW 5. It is no doubt true that PW 5 has stated that the appellant while handing over the child to the Child Care Home, Missionaries of Charity informed PW 5 that his wife is dead; but we are unable to understand as to how the appellant could be found guilty on the said statement made by him to PW 5. It is to be remembered that the bones were seen and recovered on 14.5.1992. The villagers, including PW 2 who gave fardbeyan, Ext. 3 were under the impression that the bones were that of the deceased, Rajni @ Jagni. Therefore, the appellant, Ramesh Pandey could have also been under impression that his wife is dead and so would have taken the child to the Child Care Home on 1.6.1992 and informed PW 5 that his wife is dead. In the above background, we are unable to hold that the appellant knew that his wife is dead and that he has committed her murder. The evidence of PW 5 is also of no use, in the above background, to the prosecution. On going through the materials, it transpires that the prosecution not only failed to prove that Rajni @ Jagni died but also failed to prove that she was murdered and that the appellant is responsible for her murder. 9. The appeal is, therefore, allowed. The appellant is acquitted of the charge. It is reported that the appellant-accused is in jail. He shall be released forthwith unless wanted in any other case(s). Appeal allowed.