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2009 DIGILAW 782 (JHR)

Umakant Mandal v. State of Bihar (now Jharkhand)

2009-05-18

AMARESHWAR SAHAY, R.R.PRASAD

body2009
JUDGMENT By Court The present appeal has been preferred against the judgment dated 23/09/1991 passed by the 2nd Additional Sessions Judge, Godda in Sessions Case No. 74/1991, whereby the appellant, who was tried for committing the murder of his wife Smt. Kanti Devi and causing disappearance of evidence of the offence, has been found guilty and, thereby, has been convicted for committing the offence under Sections 302 and 201 IPC and, has been sentenced to undergo R.I. for life for the offence under Section 302 IPC and further to undergo R.I. for a period of five years for the offence under Section 201 IPC. 2. The facts, in short giving rise to this appeal, are that the informant Mahadeo Mandal lodged a Fardbeyan before Kahalgaon Police Station in the district of Bhagalpur on 06/10/1990 alleging therein that he got his daughter Kanti Devi married to the appellant Umakant Mandal, a resident of Village Dhalkudia, P.S. Belbadda, district Godda and Kanti Devi had a son aged about 3-4 years. When she was pregnant, she had promised to offer sacrifice (Bali) of a he-goat, which her husband was not in a position to arrange and, therefore, she requested her father, i.e. the informant to arrange for a he-goat. The informant, as per the wishes of his daughter, arranged a he-goat for the said purpose. On 03/10/1990 at about 10.00 A.M. the appellant Umakant Mandal came to the house of the informant in village Singhari in order to take the he-goat and while returning to his village he asked the informant that no one should come to his village. On 05/10/1990, the informant sent his son Raghunath Mandal to the house of the appellant in order to know “Haal-Chaal” (welfare) of his daughter. His son Raghunath returned on the same day in the afternoon and told him that his sister Kanti Devi was not there in her Sasural and on being asked, her in-laws did not give any satisfactory reply. He also disclosed that the appellant was also not found in the village. His son Raghunath returned on the same day in the afternoon and told him that his sister Kanti Devi was not there in her Sasural and on being asked, her in-laws did not give any satisfactory reply. He also disclosed that the appellant was also not found in the village. Thereafter, the informant’s son tried to get information about his sister from the cousins of the appellant but they also avoided to give any reply, however he came to know that on 03/10/1990, in the evening, the appellant by holding the hairs of his wife Kanti Devi brought her dragging to the bridge over Dhulia river and there with the help of other persons present there, killed his wife Kanti Devi and, thereafter, threw her dead body in Dhulia river. Raghunath tried to trace out the dead body of her sister near the bridge and in the river but he could not trace out the same. On receipt of such information, the informant alongwith 4-5 other villagers went to the in-laws place of his daughter in village Dhalkudia but no one from the appellant’s family were found there and, thereafter, he started searching the dead body of his daughter in the river and ultimately, he could locate her dead body near “Kaua Pool” situated at Kahalgaon. Since the dead body was found at Kahalgaon, which fell within the territory of the district of Bhagalpur and, therefore, Kahalgaon Police recorded the Fardbeyan of the Informant, prepared the inquest report and, thereafter, sent the dead body of Kanti Devi for postmortem examination to Bhagalpur. However, when Kahalgaon police felt that, in fact, the offence was committed within the territorial jurisdiction of the district of Godda then the Fardbeyan of the informant was sent to Mehrama Police Station for further action and investigation into the case. On completion of investigation the police submitted charge sheet under Section 302 and 201 IPC against the appellant. On the basis of which, cognizance was taken, the case was committed to the Court of Sessions where charges were framed against the appellant, which he denied and, thereafter, he was put on trial. 3. The whole case is based on the circumstantial evidence since there is no eyewitness to the occurrence. 4. On the basis of which, cognizance was taken, the case was committed to the Court of Sessions where charges were framed against the appellant, which he denied and, thereafter, he was put on trial. 3. The whole case is based on the circumstantial evidence since there is no eyewitness to the occurrence. 4. The learned trial court on the basis of the evidence adduced by the prosecution held that the following circumstances appeared from which it was established that it was the appellant, who committed the murder of his wife Kanti Devi and, thereafter, threw her dead body in the river:- (i) On the date of occurrence in the morning the appellant was very much annoyed with his wife and he had beaten her due to which his wife fled away from his house and took shelter in the house of her aunt (Mausi PW-2). (ii) The appellant became angry and had altercation also with PW-2 and PW-4 as to why his wife took shelter in their house and, thereafter, he took back his wife Kanti Devi. PW-2 stated that Kanti Devi had disclosed to her that she was beaten up by the appellant. (iii) PW-12 stated that about one year back while he was returning after grazing his cattle, he saw the appellant going with his wife and eight days thereafter, the dead body of the appellant’s wife was found near “Kaua Pool”. 5. It appears that in order to establish the charges, altogether 16 prosecution witnesses were examined on behalf of the prosecution. Out of the aforesaid 16 witnesses, PW-1 JaikaranYadav, PW-5 Dashrath Mandal. PW-13 Rohin Mandal were declared hostile, whereas PW-7 Manikant Mandal and PW-14 Delip Rajak were tendered. PW-16 Baleshwar Yadav is a formal witness, who proved the signature of the Doctor on the Post Mortem report since the doctor, who held Post Mortem, was not examined. 6. The main witnesses, on behalf of the prosecution, are PW6 Mahadeo Mandal, i.e. the informant, PW-11 Raghunath Mandal his son, i.e. the brother of the deceased, PW-2 Dukhani Devi, aunt (Mausi) of the deceased and PW-4 Jamuna Mandal, uncle (Mausa) of the deceased. 7. In the FIR, the informant alleged that his daughter requested him to manage one he-goat for sacrifice, which he arranged and on 03/10/1990 the appellant Umakant Mandal came and took delivery of the he-goat and, thereafter, left the place. 7. In the FIR, the informant alleged that his daughter requested him to manage one he-goat for sacrifice, which he arranged and on 03/10/1990 the appellant Umakant Mandal came and took delivery of the he-goat and, thereafter, left the place. It is also alleged by the informant in the FIR that he sent his son Raghunath (PW-11) to the in-laws place of her daughter Kanti Devi, (deceased) to take her “Haal-Chaal” but his son returned and informed that he could not meet his sister and brother-in-law as they were not found in their house. It has further been alleged in the FIR that the informant’s son told him that he came to know that in the evening on 03/10/1990, the appellant by holding the hairs of his wife, was dragging her towards the Dhulia River and there with the help of other persons killed his wife and threw her dead body in the river. But curiously enough this story as narrated in the FIR is totally absent in the evidences of these two witnesses, i.e. of the informant PW-6 and PW11 Raghunath Mandal. They are completely silent on these facts. PW 6 has admitted in Para-2 of his cross-examination that whatever he stated about the occurrence was hearsay. 8. PW-11 Raghunath Mandal, the brother of the deceased, in his examination-in-chief has stated that when he asked about his sister from the wife of Pankaj then he was told that the appellant had taken his wife to reach her to her maika but the prosecution has not chosen to examine this witness, i.e. the wife of Pankaj to substantiate the said fact. His evidence is mainly on the point of recovery of the dead body of the deceased from Dhulia River. 9. PWs. 2 and 4, who are the Aunt and Uncle ( Mausi & Mausa) of the deceased have been examined by the prosecution in order to establish the fact that few days prior to the recovery of the dead body of the deceased, the deceased had came to the house of these two witnesses and had complained that the appellant after a quarrel had beaten her. These two witnesses, i.e. PW-2 and PW-4 are not on the point that Kanti Devi took shelter in their house due to which the appellant was very much enraged and he also quarreled with them and, thereafter, took back his wife to his house. It is after two or three days, they heard rumour in the village that the appellant has killed his wife. 10. On close scrutiny of the evidences of PW-2 and PW-4, we find that there is nothing in their evidences so as to infer from it that it was the appellant who killed his wife. At best it can be said that a few days prior to the recovery of the dad body of the deceased, she had gone to the house of PWs.-2 and 4 after she had quarreled with her husband. 11. In a case of this nature, which based on circumstantial evidence, motive plays a vital role and the prosecution should establish the motive behind the occurrence. But in the present case, the prosecution has not established the motive. In a case of direct evidence, motive is not required to be established by the prosecution but in a case, which is based on the circumstantial evidence motive is required to be established. 12. It appears that only because the appellant is the husband of the deceased and, as such, only on suspicion he has been roped in this case. It is well settled that the suspicion howsoever be strong cannot take place of proof. 13. We find that the story of the prosecution has been changed from one stage to another making the prosecution case to be doubtful and unreliable. We find no reason as to why the appellant would kill his wife without any rhyme and reason and, therefore, in our opinion, the circumstantial evidence, led by the prosecution are not such which clearly points out towards the guilt of the appellant. The chain of circumstances is not complete and, therefore, we are of the view that in such a situation it is not safe to confirm the conviction and sentence passed by the trial court against the appellant. 14. Accordingly, this appeal is allowed. The judgment of conviction and sentence passed by the trail court against this appellant is hereby set aside. The appellant, who is on bail, is hereby discharged from the liabilities of his bail bonds.