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2011 DIGILAW 26 (JHR)

Lalmani Devi v. State of Jharkhand

2011-01-12

R.R.PRASAD, SUSHIL HARKAULI

body2011
JUDGMENT By Court. — All the three appellants on being convicted under Section 302 read with Section 34 of the Indian Penal Code for committing murder of Sita Devi were sentenced to undergo rigorous imprisonment for life. 2. The case of the prosecution is that on 28.12.2002 at about 11.30 a.m. when the informant Raghvendra Prasad Singh (P.W. 8) came to in-laws' place of his sister, Sita Devi @ Sumitra Devi (deceased), he came to know that his sister's husband Rajiv Nayan Singh and also father-in-law as well as mother-in-law, namely, Ram Lakhan Singh and Lalmani Devi have burnt his sister to death. They took a false plea that Sita Devi (deceased) accidentally caught fire, as a result of which, she as well as her daughter aged about 15 months died. 3. Further case is that at that point of time, police also reached over there who made inspection of the house and then it could be known that Sita Devi, in fact, has been burnt to death in a bathroom from where burnt plastic pipe as well as some pieces of paper, one steel tumbler containing a little bit of K. Oil were found which were seized. They all felt smell of K. Oil. coming out of the bathroom from where body had been removed and had been kept outside of the bathroom. 4. On noticing the aforesaid fact, the said Raghvendra Prasad Singh (P.W.8) gave his Fardbeyan on the same day at about 12 O'clock at the spot. The motive which was assigned is that she was being subjected to cruelty as she was not bearing male child. At the same time, it has also been stated that the accused persons had also started demanding money. Demand had even been fulfilled but partly. In spite of that, his sister was being subjected to cruelty. 5. On the said Fardbeyan, when the case was registered, it was taken for investigation and in that course, police made inquest of the dead body of Sita Devi. Thereupon dead body of Sita Devi was sent for post mortem examination. By that time Isha Kumari @ Chhoti who had been removed to hospital also died. Dr. Shailendra Kumar (P.W. 9) conducted post mortem examination on the dead bodies of both the deceased and found cause of death as shock due to 100% burn injury. 6. Thereupon dead body of Sita Devi was sent for post mortem examination. By that time Isha Kumari @ Chhoti who had been removed to hospital also died. Dr. Shailendra Kumar (P.W. 9) conducted post mortem examination on the dead bodies of both the deceased and found cause of death as shock due to 100% burn injury. 6. Oil submission of the charge-sheet and committal of the case to the court of sessions, the appellants were put on trial wherein P.W. 5 Brajesh Kumar Sharma, P.W. 6 Banke Bihari Sharma and P.W. 7 Ritesh Kumar, all cousin of the deceased, were examined who testified that on coming to know that their cousin has died, they came to the place of occurrence and found plastic pipes, some pieces of paper burnt in the bathroom where tumbler was also there which contained a little bit• of K. Oil and that the deceased was being• subjected to cruelty on account of nonfulfillment of demand and also due to the reason that she had not given birth of any male child. The informant was examined as P.W. 8. Ajit Kumar Poddar has been examined as P.W. 3, who has testified that he was the first person to come to the place of occurrence where when he found the deceased and her daughter burning, he put off the fire and took them out of the bathroom. P.Ws. 1 and 2 are the witnesses to the inquest of the dead bodies of Sita Devi and her daughter Isha Kumari. 7. The trial court while recording the order of conviction though recorded number of circumstances but has based his finding of guilt mainly on the following circumstances: 1. The deceased Sita Devi was always subjected to cruelty, torture and harassment by the accused persons in connection with demand of money as well as for not bearing male child. 2. At the time of occurrence, number of persons residing in the vicinity of the house assembled but the appellants namely, Rajiv Nayan Singh and Ram Lakhan Singh did not come over there though they were in the shop which situated in the ground floor of the same building. 3. The deceased was virtually found drenched with K. Oil. 4. 2. At the time of occurrence, number of persons residing in the vicinity of the house assembled but the appellants namely, Rajiv Nayan Singh and Ram Lakhan Singh did not come over there though they were in the shop which situated in the ground floor of the same building. 3. The deceased was virtually found drenched with K. Oil. 4. The limbs were found by the Doctor flexed which, according to the court, was indicative of the fact that she would have made some resistance and that the accused persons took false plea of accidental death. 8. Being aggrieved with the judgment of conviction and order of sentence, this appeal has been preferred. 9. Heard learned counsel appearing for the appellants and learned counsel appearing for the State. 10. It has been well settled that the circumstances from which inference of guilty are sought to be drawn must be cogently and firmly established. One of the circumstances which has been taken to be one of the links of the chain of the circumstances showing guilt of the accused is that the deceased was being subjected to cruelty on account of nonfulfillment of demand which, in our view, the prosecution has completely failed to establish as P.Ws. 5, 6 and 7, all cousins of the deceased, though have testified that the accused persons used to subject the deceased to cruelty on account of non-fulfillment of demand of money and also for the reason that she was not bearing male child but none of them have disclosed about the source as to how they came to know all about it. Moreover, they do not seem to have made such statement before the police which does appear from the suggestion made to the witnesses. One of the witness, namely, P.W. 6 is completely silent on the point of cruelty. So far the informant (P.W. 8) brother of the deceased is concerned, he though has testified that his sister was being subjected to cruelty as she was not bearing male child but he was completely silent as to in what manner the deceased was being subjected whether she was being taunted or being subjected to assault or was being harassed in any other manner. The witness is also silent as to how he came to know all about that, whether he heard it from any other person or was told by the deceased herself. The witness is also silent as to how he came to know all about that, whether he heard it from any other person or was told by the deceased herself. Under these circumstances, the prosecution can never be said to have established the fact that the deceased was subjected to cruelty on account of non-fulfillment of demand of money and also for not bearing male child. Moreover, probability of deceased being subjected to cruelty on account of nonfulfillment of demand of money gets diminished as the deceased had been married nine years before and was having two children particularly when it is not the case of prosecution that demand of money was being made right from beginning of the marriage. 11. Coming to the next circumstance it be recorded that absence of the accused persons from the place of occurrence where number of person had assembled has taken to be an incriminating circumstance by the court as natural conduct of the accused would have been to rush to the seen of occurrence when they came to know about the burning of the deceased. The trial court seems to have wrongly come to the conclusion. From the evidence of P.W. 8 it does appear that' when he came to the place of occurrence, the appellant no. 2 Rajiv Nayan Singh had taken her daughter to hospital and the appellant no. 3 Ram Lakhan Singh was present over there. P.W. 3, Ajit Kumar Poddar a resident of the same mohallah has testified that he was the first person to reach at the place of occurrence where when he found the deceased burning put the fire off and brought her at the next room. He has also testified that none of the accused persons were present over there. The husband and the father-in-law of the deceased were at the shop whereas mother-in-law had gone to attend some kirtan at a place ½ k.m. away from there. Thus, if the evidence of P.W. 3 is read together with the evidence of P.W. 8 in the context of aforesaid circumstance, it would appear that while the deceased was under fire at the bathroom, the accused persons were not there and by the time P.W. 8 reached at the place of occurrence, the appellant Rajiv Nayan Singh, husband of the deceased had taken her daughter to hospital where she succumbed to her burn injury. It be reiterated that this fact has been stated by none other than the star witness of the prosecution, i.e. P.W. 8. Thus, the aforesaid circumstance cannot be said to be an incriminating Circumstance pointing towards guilt. 12. So far other circumstances about the deceased being drenched with K. Oil who died leaving behind sign of resistance is concerned, that in the facts and circumstances cannot be taken as incriminating circumstance unerringly showing guilt of the accused. 13. It has already been noted from the testimony of P.W. 3 that when he found the deceased burning in the bathroom, none of the accused person was present over there which fact heavily disproves the theory of homicide, rather circumstances are there indicating possibilities of committing suicide as it is quite likely that the accused persons may have been passing remarks against her for not bearing male child as the deceased was having two girls child, one aged about 15 months and the other aged about 6 years which may have prompted the deceased to commit suicide and in that event, the deceased being found drenched with K. Oil never suggests toward culpability of the accused persons. At the same time, flexing of limbs and the clawing of the extremities which has been termed by the court as pugilistic attitude never does indicate about putting herself to resistance at the time of burning as according to medical jurisprudence, when there would be extensive burn, there would be flexing of limbs and as such, this situation may occur even in a case of suicide. 14. Thus, the circumstances on which the order of conviction and sentence have been recorded, those circumstances in the facts of the case stated above, cannot be taken to be incriminating against the appellants. Therefore, the trial court is not justified in recording the order of conviction. Accordingly, the order of conviction and sentence is hereby set aside. Consequently, the appellants are acquitted of• the charges. The appellant nos. 2 and 3, namely, Rajiv Nayan Singh and Ram Lakhan Singh are directed to be released forthwith, if not wanted in any other case. The appellant no.1, Lalmani Devi, who is on bail is discharged from' the liability of the bail bond. 15. In the result, this appeal is allowed.