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2012 DIGILAW 480 (JHR)

Baikunth Nath Tiwari v. State of Jharkhand

2012-03-29

D.N.UPADHYAY, R.K.MERATHIA

body2012
JUDGMENT This appeal is directed against the judgment of conviction and order of sentence dated 11.10.2001 and 12.10.2001 respectively, passed by the learned Sessions Judge. Garhwa, in Sessions Trial No. 503 of 1996, convicting the appellants under Section 302/34, IPC and under Section 201/34, IPC and sentencing them to undergo R.I. for life for the offence under Section 302/34. IPC, However, no separate sentence was passed under Section 201/34, IPC. 2. The prosecution case in short is that Mangal Kishore Pandey-informant-PW 3 lodged a Jardbeyan on 28.01.1996 that his daughter Usha Devi was married with appellant No. 1-Baikunth Nath Tiwart in the year 1985. She could not bear child inspite of treatment. There was no dispute between her and her husband-Baikunth Nath Tiwari. About 1 and 1 /2 month back, he received a letter (Ext-7) from Usha Devi to the effect that her husband Baikunth Nath Tiwart and his family members used to taunt and threaten her for not bearing child. On receipt of such letter he went to the house of the appellants and pacified the matter between Usha Devi and her husband. Thereafter, about 17-18 days back. Usha Devi came to his house but her husband Baikunth Nath Tiwart came and took her back and then he again reached her to her parent's house on the next day. Usha Devi was telling the informant that she had apprehension of her life and therefore she was not willing to go back but Baikunth Nath Tiwart took her with him on 24.01.1996 and after a couple of days on 28.01.1996 the informant received a letter that Usha Devi was killed by the accused persons by strangulation and they are trying to cremate her body. On this the informant along with Nawal Kishore Pandey (PW 5) went to cremation Ghat and found Usha Devi was completely consigned to flame. Only appellants Nos. 4 and 5 were sitting there, Appellant No. 1-Baikunth Nath Tiwari on seeing the informant party, filed away. Cremation was not done properly. The informant suspected that the villagers did not join in cremation as she was killed by strangulation. It was alleged that the appellants have killed the daughter of the informant and to conceal the evidence, cremated her. 3. The prosecution examined nine witnesses. P.Ws. 1, 2, 4, 5 and 6 are either hostile or hearsay witnesses. PW 3 is the informant. It was alleged that the appellants have killed the daughter of the informant and to conceal the evidence, cremated her. 3. The prosecution examined nine witnesses. P.Ws. 1, 2, 4, 5 and 6 are either hostile or hearsay witnesses. PW 3 is the informant. PW 7 is the relative of the informant, who said that he accompanied he informant to the cremation Ghat and at appellant Baikunth Nath Tiwari fled away. PW 8 is the Investigating Officer. PW 9 is a witness for proving the handwriting of Usha Devi. 4. DW -1 is mukhia of the village. in whose presence, Usha Devi was cremated. 5. Mr. B.M. Tripathy, learned senior counsel appearing for the appellants submitted that he is not pressing this appeal on behalf of appellant No. 4- Parmeshwar Tiwari, who died during pendency of the appeal. He further submitted that there is vague and general allegation against the appellants and all the family members have been roped in this case only on the basis of suspicion. The appellant No. 1-Baikunth Nath Tiwari is the husband of Usha Devi. Appellant No. 2-Sumer Tiwari is younger brother of appellant No.1. Appellant No. 3-Arti Devi is bhabhi of appellant No.1, Appellant No. 4-Parmeshwar Tiwari (deceased) and appellant No. 5-Jagan @ Jageshwar Tiwari are uncle of appellant No. 1. He submitted that the chain of circumstances is not complete in this case and therefore the conviction cannot be upheld. He also submitted that appellant No. 1-Baikunth Nath Tiwmi has remained in jail for a total period of about 13 years. 6. On the other hand, counsel for the State supported the impugned judgment. 7. According to the prosecution the suspicion was raised on the appellants as the deceased had written a letter (Ext-7) prior to her death. On going through Ext-7, it appears that she requested the informant to take her and get her treated for not bearing child. Only one sentence was generally said that the appellants are preparing to kill her by strangulation. The letter said to have been received by the informant regarding information of death and cremation of Usha Devi has not been marked as Ext. However, the same has been marked as 'X' for identification. It was stated in the fardbeyan that there was no problem between Usha Devi and her husband Baikunth Nath Tiwari on the point of not bearing child by her inspite of treatment. However, the same has been marked as 'X' for identification. It was stated in the fardbeyan that there was no problem between Usha Devi and her husband Baikunth Nath Tiwari on the point of not bearing child by her inspite of treatment. After receipt of Ext-7, the informant went to matrimonial home of Usha Devi and resolved the dispute. Thereafter, it appears that there was some quarrel between husband and wife over a trivial issue. 8. After hearing the parties at length and carefully going through the records, we are satisfied that the prosecution has not been able to prove its case against the appellants beyond all reasonable doubts and the chain of circumstance is not complete. 9. In the result, the impugned judgment of conviction and order of sentence dated 11.10.2001 and 12.10.2001 respectively, passed by the learned Sessions Judge. Garhwa, in Sessions Trial No. 503 of 1996. against the appellants is set aside. Appellant Nos. 2, 3 and 5 namely Sumer Tiwari, Arti Deviand Jagan @ Jageshwar Tiwari. who are on bail are discharged from their bail bonds. Appellant No. 1-Baikunth Nath Tiwari, who is in custody is directed to be released from jail forthwith, if not wanted in any other case. Appeal allowed.