Research › Search › Judgment

Jharkhand High Court · body

2007 DIGILAW 364 (JHR)

Arun Jaiswal v. State Of Jharkhand

2007-04-26

AMARESHWAR SAHAY, DHANANJAY PRASAD SINGH

body2007
JUDGMENT D.P. Singh, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 9.1.2002 and 10.1.2002 passed by the learned 1st Additional Sessions Judge, Hazaribagh in Sessions Trial No. 115/2000, whereby and whereunder the learned Court below held the appellant guilty under Section 302, IPC and sentenced him to undergo RI for life. 2. The brief facts leading to this appeal are that in the morning of 14.11.1999 at about 8 a.m., PW 2 Surji Devi found smoke coming out from the room occupied by the appellant and the deceased situated in Mauja Barjawan, P.S. Mandu, district Hazaribagh. Surji Devi along with PW 3 Baleshwar Razak went to the room to find that deceased Mina was lying dead with burn injuries inside the room. PW 3 extinguished the fire and informed the brother of the deceased Nandlal Jaiswal regarding the incident. Nandlal Jaiswal went to Mandu police and returned with the police at the P.O. where his statement was recorded by PW 8, Narayan Prasad. According to the informant, the accused married with the deceased about 10 years ago and used to torture and ill-treat her, for which a panchayati was held. It is further asserted that for last five years the appellant was living in Barjawan and continued to ill-treat her, for which even a proceeding under Section 107, CrPC was instituted. He further asserted that the appellant along with other family members has committed the murder of the deceased and tried to burn the dead body. The police registered Mandu P.S. Case No. 288/99 under Section 302/34, IPC against the appellant and three others, prepared the inquest report, seized the articles from the P.O. and finally submitted charge-sheet only against this appellant under Section 302/34, IPC, not sending other accused persons for trial in absence of sufficient evidence. 3. The appellant was put on trial after framing of charge on 1.4.2000 under Section 302, IPC, to which he pleaded not guilty and claimed to be innocent. However, the learned trial Court, after examining witnesses, found and held, the appellant guilty for the offences under Section 302, IPC and sentenced him as aforesaid. 4. The present appeal has been preferred mainly on the ground that the learned trial Court has failed to consider the contradictory statements on record. However, the learned trial Court, after examining witnesses, found and held, the appellant guilty for the offences under Section 302, IPC and sentenced him as aforesaid. 4. The present appeal has been preferred mainly on the ground that the learned trial Court has failed to consider the contradictory statements on record. It has also been, asserted by learned Counsel for the appellant that there is no direct evidence to connect the appellant with the alleged offence rather the chain of circumstances goes to show that there was no nexus between the offence and the appellant. Learned Counsel firstly drew our attention towards the medical evidence, in which the cause of death has been indicated asphyxia due to burning. It was also pointed out that the I.O. of this case has not produced the gallon containing kerosene oil and the doctor, PW 1 did not find any smell of kerosene oil or petrol on the dead body. Therefore, the presumption that Mina was burnt with the help of kerosene oil or petrol by the accused is not supported. Learned Counsel further pointed out that in absence of any other external injuries on the dead body, the learned Court below should have considered the possibility of accidental fire resulting in her death. Learned Counsel further asserted before us that all the witnesses examined by the prosecution were hearsay witnesses, out of which PWs 4 and 7 have been declared hostile. Therefore, in absence of any direct and positive evidence, the conviction of the appellant is liable to set aside. 5. Admitted facts on record are that appellant Arun Jaiswal, husband of deceased Mina Devi, was not available at the P.O. after PW 2 found the smoke coming out of the room occupied by them on rent. The prosecution case is that Arun was caught hold by villagers at river side and brought before the mukhia when police came. The informant, PW 6 Nandlal asserted that he got the information from someone called Ram Naresh Sao regarding the incident, at about 8 a.m. and informed the police. That Ram Naresh Sao has not been produced as a witness by the prosecution. PW 8 Narayan Prasad, SI police, Mandu asserted that he got the information at police station and after making SD Entry No. 276 proceeded for the PO. That Ram Naresh Sao has not been produced as a witness by the prosecution. PW 8 Narayan Prasad, SI police, Mandu asserted that he got the information at police station and after making SD Entry No. 276 proceeded for the PO. PW 2 Surji Devi along with PW 3, her husband found the deceased lying dead inside the room and smoke coming out. They further asserted that at that time the appellant was not available there. According to them the villager caught hold of the appellant and brought him before the Mukhias house. They have also admitted that three issues of the deceased were not available in the room and they cannot say where they were staying. 6. PW 4 Sheo Prasad and PW 5 Bipin Jaiswal have supported this factum that Mina was found laying dead with burn injures inside the room and at that time appellant Arun Jaiswal was missing. All of them admitted that they cannot say how Mina died. 7. PW 7, Bhuneshwar Jaiswal is an other hearsay witness, declared hostile by the prosecution, has supported the prosecution version only to this extent only. In this background PW 6, the informant, supporting his fardbeyan before the police, admitted during cross-examination that on receipt of information regarding death of Mina, he went to police to inform him. However, this fact is not supported by his fardbeyan. He admitted in para 6 that he cannot say why the accused used to torture his sister. In para 9 he asserted that he has filed a petition on being forced by the brother of the appellant in this case on 6.3.2000. This witness, on recall by the defence for further cross-examination on 15.9.2001, took another stand. According to his cross-examination on recall, he got the information on 13.11.1999 and informed the police same day. He further asserted that his statement was not read over by the police and he cannot say on which paper he has signed. He further stated in para 17 that his sister used to live in the sasural properly and virtually he recalled all his allegations made earlier against the appellant. 8. When we considered the evidence of PWs 1 and 8, the doctor and the I.O. of this case, it appears that the dead body was sent for post mortem examination in the after of noon 14.11.1999. The inquest report, Ext. 8. When we considered the evidence of PWs 1 and 8, the doctor and the I.O. of this case, it appears that the dead body was sent for post mortem examination in the after of noon 14.11.1999. The inquest report, Ext. 3, shows that the dead body has got no clot on it. The post-mortem report mentions generalised burn superficial diorama epidermal involving head and scalp, right upper link, left upper link, front of thorax, abdomen, thigh, chest etc. having 75% burn. The doctor has mentioned that above; burn injuries were ante-mortem in nature and cause of death is Asphyxia due to ante-mortem burns. The post-mortem was not conducted to as certiain the internal injuries, if any, in the dead body neither it has been conducted to ascertain whether the victim was throttled before being burnt. The I.O., who has indicated injuries on the neck in the inquest report, has also asserted in para 7 of the examination-in-chief that the deceased has lodged a non-FIR case against the appellant vide non-FIR case No. 11/99 of Mandu police. He has seized burnt quilt, a container of 5 litre kerosene oil, one match box etc. from the room. In cross-examination this I.O., admitted that laches on his part not to produce the seized articles before the trial Court. However, he has admitted that the deceased and the appellant used to quarrel, for which said non-FIR Case No. 11 /99 was instituted and a panchayati was held. 9. It appears that the relation between the appellant and his wife, deceased Mina Devi was not cordial. It has also come on record that in the morning of 14.11.1999 when PWs. 2 and 3 saw the smoke coming out of the room, they went there to find the deceased Mina Devi completely burnt having 75% burn injuries on the dead body. It has not been disputed that at that time the appellant was missing. It has also come on record that he was caught hold by the villagers and brought to mukhids house and thereafter produced before the police. It is also not disputed fact on record that prior to this incident the deceased has lodged a complaint before the police, on the basis of which non - FIR Case No. 11/99 has been registered. These facts go to prove beyond doubts that the appellant and the deceased were having strained relationship between them. It is also not disputed fact on record that prior to this incident the deceased has lodged a complaint before the police, on the basis of which non - FIR Case No. 11/99 has been registered. These facts go to prove beyond doubts that the appellant and the deceased were having strained relationship between them. The appellant even in his statement under Section 313, Cr PC, has admitted that at that time he was not present in the house and claimed to be innocent. However he has not explained under what circumstance the lady was found burnt inside the room in the morning of 14.11.1999. Normally the wife and husband would occupy the room for night and if he has to go out for call of nature, he must not have left the place till 6 a.m. He has not explained his absence from the room where Minas dead body was found having 75% burn injuries. 10. The other circumstance, which came to our notice, is that the informant in his cross-examination has admitted that he was forced to file an affidavit before the trial Court on 6.3.2000, vide para 9, just before the charge was framed against the appellant. Recall from his earlier statement on 14.9.2001 after being recalled by the appellant for cross-examination, gives another twist to the fact of this case. 11. Learned Counsel for the appellant stressed before us that in such view of the fact, where the informant, own brother of the deceased, is changing his versions at different stages of trial, reliance could not be placed on the allegations made by him against the appellant. It was also pointed out that in absence of any eye-witness of the occurrence, the case was totally based upon the circumstantial evidence that the deceased was his wife and found dead in burnt condition in the morning of 14.11.1999, at which time he was not available in the room. According to the learned Counsel for the appellant, in such view of the matter, the chain of circumstances requires to be brought before the trial Court, which points the guilt of the accused as well as the fact that the convict alone was responsible for causing death of the deceased Mina Devi. It was also pointed out that the doctor has not found any external or internal injury on the dead body except burn injuries. It was also pointed out that the doctor has not found any external or internal injury on the dead body except burn injuries. According to the learned Counsel for the appellant, there is failure on the part of the prosecution in not bringing on record the seized container of kerosene oil, match box as well as burnt pieces of quilt etc., which creates a reasonable doubt in the prosecution version. Learned Counsel for the appellant also drew our attention towards the admission of I.O., PW 8, regarding non-production of SD Entry No. 276, after which he proceeded to arrive at the P.O. The informant has asserted in his chief that he went to police station, whereas the I.O., asserted that he reached at the P.O. Therefore, reliance placed upon circumstantial evidence by the learned trial Court is not justified. 12. Having discussed the materials available in the lower Court records, we find that the argument advanced by the learned Counsel for the appellant has got merit in it. The very basis of the allegation that the deceased and appellant has got strained relationship is missing on record. The informant has stated that for fast 4-5 years the appellant along with his wife deceased Mina and children was living in the rented house. The first witness of the occurrence PWs 2 and 3 being landlord of the room, have not supported the prosecution case in this context because they categorically admitted that they have not seen any quarrel between the appellant and the deceased. PWs 4 and 5 have not supported this fact rather admitted that they cannot say how Mina died. PW 7 has been declared hostile. PW 6, the informant and own brother of the deceased, has changed his version after first statement before the police. In his first cross- examination he admitted that on 6.3.2000 he has given some fact on affidavit under pressure and threats. Further on 14.9.2001 he changed the date of incident asserting that on 13.11.1999 the incident took place and he reported the matter to police. He further admitted in para 16 that his statement was recorded but not read over before he signed over it and ultimately in para 17 he stated that the deceased used to live with her husband happily. 13. He further admitted in para 16 that his statement was recorded but not read over before he signed over it and ultimately in para 17 he stated that the deceased used to live with her husband happily. 13. In view of the facts and circumstances stated above, we are of the opinion that the prosecution in the present case has not been able to prove beyond all reasonable doubts that the appellant has committed the murder of his wife as alleged by the prosecution in between the night of 13/14.11.1999. 14. In the result, this appeal is allowed and the judgment of conviction and order of sentence dated 9.1.2002 and 10.1.2002 passed by the learned Court below is hereby set aside. The appellant being in jail, is directed to be released forthwith, if not wanted in any other case. Amareshwar Sahay, J. 15. I agree.