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2008 DIGILAW 100 (PAT)

Baldeo Sah And Purni Devi v. State Of Bihar

2008-01-18

SHAILESH KUMAR SINHA, SHIVA KIRTI SINGH

body2008
Judgment Shiva Kirti Singh and Shailesh Kumar Sinha JJ. 1. This appeal arises out of judgment and order dated 5.10.2002/7.10.2002 passed by learned Additional District & Sessions Judge I, Katihar in Sessions Case No. 85 of 1998/261 of 2001, whereby both the appellants have been convicted for the offence under Sec. 302 read with Sec. 34 and Sec. 201 I.P.C. and sentenced to life imprisonment for the former charge but no separate sentence has been awarded under Sec. 201 I.P.C. 2. The prosecution case is based on the Fardbeyan of Ganga Prasad Sah (P.W.3) brother of deceased Makuna Devi recorded by Sub-Inspector of Police Mahadeo Mistri (P.W.14) on 4.9.1997 at village Ekauna Nayatola at 15.30 hrs. In short the prosecution case is that deceased Makuna Devi, aged about 18 years, was married about seven months earlier to appellant No. 1, Baldeo Sah a resident of village Ekanuna Nayatola, P.S. Mansahi, District- Katihar. After marriage for about four months the deceased and appellant No. 1 stayed in the house of the informant where he noticed frequent quarrel between them and at time also assault. About four months earlier appellant No. 1 took the deceased to Katihar for treatment and from there he took her to his village Ekauna Nayatola and they started living there. On 02.09.1997 (Tuesday) at 9 am appellant No. 1 came to village Soti, the village where the informant was married and informed him that since 8 A.M. of the previous date the deceased had run away to some place. The informant requested appellant No. 1 to come with him to search the deceased but he declined on the ground that he was tired and will stay at village Soti. The informant met his mother Sukhri Mosmat (P.W.2) and inspite of information given by her that Makuna Devi had not come to village Morsada, the informant went to his village Morsada but did not find his sister there. He came back to village Soti and there he learnt that appellant No. 1, his brother-in-law has fled away. On 3rd September, 1997 he went to village Ekauna Nayatola, the place where the deceased was married. He searched for his brother-in-law and came to know that he had gone to village Fulhara, that is the house of appellant No. 2, who is first wife of appellant No. 1. On 3rd September, 1997 he went to village Ekauna Nayatola, the place where the deceased was married. He searched for his brother-in-law and came to know that he had gone to village Fulhara, that is the house of appellant No. 2, who is first wife of appellant No. 1. The informant went to village Fulhara and made enquiries from appellant No. 1 as to why he ran away from village Soti. On this appellant No. 1 and appellant No. 2 began to assault him. The informant ran away and came to village Ekauna. On enquiry from villagers he learnt that in the night of 01.09.1997 (Monday) both the appellants had assaulted the deceased severely and since then her sister was not seen by any one. In course of search he came to know that a dead body kept in a gunny bag had been located in river Gaheli. On going there he saw the dead body and identified the same as that of his sister Makuni Devi, the deceased. The sari and blouse on the dead body was same which he had gifted to his sister at the time of marriage. The informant claimed that the appellants and the mother of the appellant No. 1 Most. Janki Devi had conspired and killed his sister and had concealed the dead body by throwing it in river Gaheli. 3. It is further case of the prosecution that P.W.14 Mahadeo Mistri a junior Sub-Inspector of police posted at Mansahi P.S. had received information at 2.20 hrs of 04.09.1997 regarding a dead body being spotted in river Gaheli. He had written station diary No. 73 dated 04.09.1997 in that respect and along with some others had got the dead body recovered from the river and in course of that transaction he also met the informant P.W.3 and recorded his Fardbeyan. He prepared the Inquest report of the dead body and sent the same for post mortem examination. After recording the statement of witnesses and completing investigation he submitted charge sheet against the appellants and one Tuntun Mandal while investigation was kept pending against some of the absconding accused persons. After cognizance by the concerned Magistrate the case was committed to the court of Sessions. The three chargesheeted accused persons pleaded not guilty to the charges and were put on trial. After cognizance by the concerned Magistrate the case was committed to the court of Sessions. The three chargesheeted accused persons pleaded not guilty to the charges and were put on trial. Accused Tuntun Mandal was acquitted of the charges on account of lack of evidence whereas both the appellants were convicted and sentenced by the judgment and order under appeal. 4. The defence appears to be a simple denial of the allegation. Although in the Fardbeyan it has come that appellant No. 1 had taken the stand that the deceased had run way in the morning of 01.09.1997 at 8 am, no such claim has been made by appellant No. 1 in his statement under Sec. 313 Cr.P.C. nor any defence witness has been examined to show that there was any such information given to the villagers after the deceased allegedly fled away from the house of appellant No. 1. 5. The prosecution in order to prove its case has examined altogether fifteen witnesses, but only P.W. 1, 2 & 3 are material witnesses. P.W.4 to 10 and P.W.13 are villagers who have been declared hostile whereas P.W. 11 & 12 have been tendered only for cross examination. P.W.14, Mahadeo Mistri is the Investigating Officer. P.W.15, Dr. Dinanath Prasad is the doctor who has formally proved the writing of Dr. J. Prasad of Katihar Sadar Hospital and has proved the post mortem report in the hands of Dr. J. Prasad as Exhibit-4. He has deposed that he has worked with Dr. J. Prasad as a colleague in the said Hospital and Dr. J. Prasad was not available since he has gone away to some foreign country. 6. P.W.1, Ramdeo Sah is the cousin brother of deceased Makuna Devi. He has deposed in respect of the fact that deceased was married to appellant No. 1 and she had been taken to village Ekauna by appellant No. 1 on the plea that he will get her treated at Katihar. P.W.2, Sukhri Mosmat is the mother of the deceased. She has also deposed in respect of the facts stated by P.W.1 and has further stated that after her daughter was taken to village Ekauna by appellant No. 1, appellant No. 1 after about two months came to meet her son at village Soti. P.W.2, Sukhri Mosmat is the mother of the deceased. She has also deposed in respect of the facts stated by P.W.1 and has further stated that after her daughter was taken to village Ekauna by appellant No. 1, appellant No. 1 after about two months came to meet her son at village Soti. She also went to that village and there appellant No. 1 claimed that three days earlier her daughter had run away from village Ekauna and was not being traced. She has further stated that she and her son Ganga Sah and her nephew Ramdeo Sah (P.W.1) went to search for her daughter to villager Ekauna, but she was not found there and after some time her dead body was found in river Gaheli. She further claimed that her daughter had been killed by her son-in-law and his relations and to conceal the offence the dead body had been thrown in the river. P.W.3, Ganga Prasad Sah is the informant. He has fully supported his earlier version given in the Fardbeyan. From his evidence, it appears that the deceased used to be subjected to assault by appellant No. 1 and his family members. It is further clear from the evidence of P.W.3 and other witnesses that at the time of her disappearance and death the deceased was living with her husband appellant No. 1 in his house. 7. The medical evidence, as appearing from the post mortem report, Exhibit-4, shows that the body on account of being in the water had suffered extensive decomposition, and therefore, the doctor could not ascertain the cause of death and could not locate injuries on the dead body, but according to him, the death had taken place within 3-5 days. The post mortem was conducted on 5.9.1997 at 1 pm and hence the approximate time of death given by doctor makes the prosecution case probable that the deceased was done to death on 01.09.1997. 8. There is no eye witness of the alleged occurrence in which the deceased was killed and thereafter her dead body was packed in gunny bag and thrown in river Gaheli. But from the entire evidence there is no doubt that deceased was killed and then her dead body was concealed in a gunny bag and thrown in the river. 8. There is no eye witness of the alleged occurrence in which the deceased was killed and thereafter her dead body was packed in gunny bag and thrown in river Gaheli. But from the entire evidence there is no doubt that deceased was killed and then her dead body was concealed in a gunny bag and thrown in the river. The inquest report which has been proved by the I.O. (P.W.14) as Exhibit-1 shows that the body was packed in a gunny bag and the eyes and tongue were found to be protruded. One of the witness of the inquest P.W.4, Sharfu Oraon, has been declared hostile because he stated that he did not know anything regarding the occurrence. He has neither confirmed nor denied his signature on the inquest report. Column VI, VIII & IX of the inquest report go to corroborate the prosecution claim that the deceased was killed. It is also corroborated by the description of the dead body that the eyes and tongue were protruded. 9. In case of present nature where the deceased is wife of appellant No. 1, the prosecution has succeeded in establishing that soon after the marriage the deceased was being ill treated and subjected to assault and that prior to occurrence she was living with appellant No. 1 in his house and then she was found killed and the dead body was disposed of in a clandestine manner by putting it in a gunny bag and thrown in a river. Clearly these circumstances and circumstantial evidence incriminate the appellant No. 1, the husband of the deceased. Even his conduct after the occurrence, as disclosed in the Fardbeyan and in the evidence of P.W.3, shows that he avoided to accompany the informant and his mother when they wanted to search the deceased and managed to avoid answering their queries by disappearing from village Soti. He did not thereafter go to his own village and went to maternal home of appellant No. 2. There also, instead of helping in search, as per evidence on record the informant, P.W.3 was assaulted by him and appellant No. 2 and forced to run away. 10. He did not thereafter go to his own village and went to maternal home of appellant No. 2. There also, instead of helping in search, as per evidence on record the informant, P.W.3 was assaulted by him and appellant No. 2 and forced to run away. 10. The defence has not given any probable and competing version as to why the deceased would run away from her husbands place and why she would be killed by any one else and her body would be disposed of in unceremonial manner, as found in this case. The aforesaid facts and circumstances show beyond reasonable doubt that appellant No. 1, the husband of the deceased, was definitely last residing with the deceased and he had the opportunity of killing the deceased and dispose of her dead body secretly without knowledge of others. Bad relation between the deceased and the appellant No. 1 has been alleged and proved by the informant, brother of the deceased. From the evidence of I.O. and the inquest report, it is further established that the dead body was recovered from river Gaheli at a place which was Gaheli Tola of village Ekauna itself, which is the village of appellant No. 1. After the deceased had run away from the village Ekauna, there would have been no probability of her body being recovered from a place which a part of same village. 11. On a careful consideration of the aforesaid materials, we are persuaded to hold that appellant No. 1 has been rightly convicted for the offence under Section 302/34 I.P.C. and also under Sec. 201 I.P.C. His conviction as well as the sentence requires no interference. They are accordingly confirmed. 12. So far as appellant No. 2 Purni Devi is concerned, the evidence against her is only by way of suspicion and it has not been proved beyond reasonable doubts that she was also residing with appellant No. 1 at village Ekauna at the time of the alleged occurrence nor any motive or reason for her participating in such a occurrence has been proved by the prosecution. Hence, it is found that the material against appellant No. 2 is inadequate to sustain her conviction under Section 302/34 and Sec. 201 I.P.C. Hence, she is acquitted of the aforesaid charges. As a result, the appeal of appellant No. 1 is dismissed and the appeal of appellant No. 2 is allowed. Hence, it is found that the material against appellant No. 2 is inadequate to sustain her conviction under Section 302/34 and Sec. 201 I.P.C. Hence, she is acquitted of the aforesaid charges. As a result, the appeal of appellant No. 1 is dismissed and the appeal of appellant No. 2 is allowed. Since appellant No. 2 Purni Devi is on bail, she is discharged from the liability of her bail bonds.