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2013 DIGILAW 1375 (PAT)

Sanjay Kumar Panjikar v. State of Bihar

2013-12-05

I.A.ANSARI, V.N.SINHA

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I. A. ANSARI, J.:–By the judgment, dated 23rd July, 2007, passed, in Sessions Trial No. 1028 of 2006, by learned Additional Sessions Judge, Fast Track Court No. V, Banka, the appellant stands convicted under Section 302 of the Indian Penal Code and, in consequence of his conviction, he has been, by order, dated 24th July, 2007, sentenced to suffer imprisonment for life. 2. The case of the prosecution may, in brief, be described thus:– (i) Deceased Munni Panjikar was wife of accused Sanjay Kumar Panjikar and the couple, though issueless, lived together at village Kaitha along with mother of the accused. After their marriage, the accused had been harassing, torturing and assaulting his wife by raising demands for money to be brought from her parental family for the purpose of his business. On 12.03.2006, too, such a demand for money was raised; but due to their financial crisis, the parental family of the said deceased could not provide to the accused any money, though they assured that they would give him the requisite amount of Rs. 25,000/-. On 29.03.2006, Munni Panjikar’s brother, Rakesh Ranjan Mishra (PW 1), received information from the villagers of Kaitha, where Munni Panjikar used to reside with her husband, that Munni had been killed by strangulation in the night of 28th/29th March, 2006. On receiving this information, PW 1 went rushing to the matrimonial house of the said deceased, but found no one present there. PW 1, then, went to Shambhuganj Police Station and laid with the police information as regards the fact that his sister, Munni Panjikar, had been strangulated to death by the accused, because the demand raised by the accused, for providing him with money for his business, had not been met by the parental family of the said deceased. (ii) Treating the said information as First Information Report, a case, under Section 302 of the Indian Penal Code, was registered against the accused. Police, then, visited the place of occurrence, held inquest over the said dead body, which was also sent for post mortem examination. In the afternoon of 29th March, 2006, accused appeared at the said Police Station and he was taken into custody. Upon being interrogated, the accused allegedly confessed, before the police officer, that he had killed his wife. (iii) On completion of investigation, charge sheet, under Section 302 of the Indian Penal Code, was laid against the accused. In the afternoon of 29th March, 2006, accused appeared at the said Police Station and he was taken into custody. Upon being interrogated, the accused allegedly confessed, before the police officer, that he had killed his wife. (iii) On completion of investigation, charge sheet, under Section 302 of the Indian Penal Code, was laid against the accused. 3. To the charge framed, under Section 302 of the Indian Penal Code, at the trial, the accused pleaded not guilty. 4. In support of their case, prosecution examined altogether five witnesses including the Investigating Officer. The accused was, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure and in his examination aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of denial. No evidence was adduced by the defence. 5. Having reached the finding that the accused was guilty of the charge framed against him, learned Trial Court convicted him accordingly and passed sentence against him as has been mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, the accused, as a convicted person, has preferred this appeal. 6. We have heard Mr. Akhileshwar Prasad Singh, learned Senior Counsel, for the appellant, and Mr. A. K. Sinha, learned Additional Public Prosecutor, for the State. 7. While considering the present appeal, the first question, which strikes us, is as to how did Munni Panjikar died. This question takes us to the evidence of the doctor (PW 3), who had performed post mortem examination on the dead body of Munni Panjikar on 29.03.2006 at 04:45 PM. A. K. Sinha, learned Additional Public Prosecutor, for the State. 7. While considering the present appeal, the first question, which strikes us, is as to how did Munni Panjikar died. This question takes us to the evidence of the doctor (PW 3), who had performed post mortem examination on the dead body of Munni Panjikar on 29.03.2006 at 04:45 PM. According to the evidence of the doctor (PW 3), he performed post mortem examination on Munni Panjikar’s dead body and found following ante mortem injuries:– “(i) Bruise were found at the lips and angel of mouth and along side of nostrils; (ii) Inner mucoral surface of the lips were lacerated; (iii) Bruise were found on the cheeks and molar region and lower jaw; On dissection : Neck : Dark fluid blood and froth were present Brain : Congested Lungs : Congested Heart: Right side was full of dark blood and left side empty; Liver, Spleen and Kidneys were congested Stomach: Empty Small and large intestine : Gas and feed matter were present Uterus : non-grank Bladder: empty Rectum: full of feed matter External genetic : normal” 8. Based on his above findings, the doctor (PW 3) has given his opinion that the death was caused due to suffocation by smothering and that the death took place within 12 hours of the post mortem examination, which had been conducted. 9. From a careful examination of the above findings of the doctor (PW 3) as to what ante mortem injuries had been found on the said dead body, we are clearly of the view that the death of Munni Panjikar was homicidal in nature inasmuch as she had suffered injuries, as have been described above, on her lips, nose, cheeks and she had died on being suffocated by smothering. 10. Could the accused-appellant be held responsible for having caused the death of his wife, Munni Panjikar? 11. In order to reach a correct answer to the question posed above, we revert to the evidence, which has been given by the informant (PW 1). This witness’s evidence is that the occurrence took place on 28th/29th March, 2006. It is in the evidence of PW 1 that his sister, Munni Panjikar, was married to the accused and, upon her marriage, she used to live with the matrimonial family at Kaitha. This witness’s evidence is that the occurrence took place on 28th/29th March, 2006. It is in the evidence of PW 1 that his sister, Munni Panjikar, was married to the accused and, upon her marriage, she used to live with the matrimonial family at Kaitha. It is also in the evidence of PW 1 that sometime after Munni’s marriage, her husband (i.e. accused-appellant) began demanding money from his wife’s father to run his business and though money was given to the accused, he spent the money in eating and drinking and that thereafter, accused demanded Rs. 25,000/- to run business of bangles and his father-in-law told him (accused) that as he (father-in-law) had been suffering from financial crisis, he would give the said sum of Rs. 25,000/- later on. Because of the fact that his demand had not been met, the accused, according to the evidence of PW 1, started beating the said deceased. 12. What is, now, immensely important to note, in the evidence of PW 1, is that he has deposed that on 29th March, 2006, in the morning, he came to know from the villagers of Kaitha that his sister, Munni, had been murdered, whereupon he went to the house of the accused and though he found his sister, Munni, lying on a cot in the house, nobody was present there and, in the meanwhile, Officer-in-charge, Shambhuganj Police Station, arrived there and recorded his (informant’s) statement. 13. Close on the heels of the evidence of PW 1, PW 4, a co-villager of the accused, has deposed that on the following day of the occurrence, when he got up in the morning, he came to learn that the wife of the accused had been murdered and, on arrival of the police, he accompanied the police to the house of the accused and saw the dead body of the wife of the accused lying in the house of the accused. PW 4 has categorically deposed that he does not know what kind of relation the accused used to maintain with his wife. 14. We have considered the evidence on record, but we do not find that there is any evidence, given by PW 1 or PW 4 or by any other witness, that the accused-appellant was present, in his house, on the night of the occurrence and he had, then, fled away. 14. We have considered the evidence on record, but we do not find that there is any evidence, given by PW 1 or PW 4 or by any other witness, that the accused-appellant was present, in his house, on the night of the occurrence and he had, then, fled away. In the absence of any such fact having come on record, the onus could not have been shifted to the accused-appellant to show as to how his wife had died. This aspect of the case appears to have gone completely unnoticed by the learned Trial Court. 15. We may also point out that even if the prosecution had failed to bring on record any evidence as to whether the accused-appellant was or was not present in his house on the night of the occurrence, nothing ought to have stopped the learned Trial Court from bringing on record by resorting to Section 311 of the Code of Criminal Procedure any such evidence from any witness or witnesses, which could have unfurled the truth. 16. Having not brought on record anything to show that the accused was present on the night of the occurrence at his house, the burden could not have been placed on the accused to prove as to how his wife had died. 17. We are also shocked to note that the learned Trial Court has freely relied upon a confessional statement, which had been allegedly made by accused-appellant to the Investigating Officer. Little did the learned Trial Court realize that the confession, made to a police officer, is inadmissible in evidence except that part or portion of the statement or confession of an accused, which leads to the discovery of a fact provided that the accused was in the custody of police officer at the time of making confession or giving evidence. 18. In the present case, the dead body of Munni Panjikar had already been found and examined by the Investigating Officer before the accused-appellant had allegedly appeared at the said Police Station. In such circumstances, his statement, if any, made to the police officer, could not have been relied upon as admissible far less made basis of conviction of the accused-appellant. 19. There is no doubt that the circumstances, surrounding the death of Munni Panjikar, raise suspicion against the accused-appellant. In such circumstances, his statement, if any, made to the police officer, could not have been relied upon as admissible far less made basis of conviction of the accused-appellant. 19. There is no doubt that the circumstances, surrounding the death of Munni Panjikar, raise suspicion against the accused-appellant. We cannot, however, overlook the fact that suspicion, howsoever grave, cannot be made basis for convicting an accused. When there was no cogent, convincing and adequate evidence on record proving beyond any shadow of doubt that the accused-appellant was the assailant of his wife, he could not have been convicted and punished for the offence of murder. 20. Because what have been discussed and pointed out above, we are clearly of the view that the conviction of the accused-appellant cannot be sustained. 21. In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction of the accused-appellant and the sentence passed against him by the judgment and order, under appeal, are hereby set aside. The accused-appellant is held not guilty of the offence, which he stands convicted of, and he is acquitted of the same. 22. Since the accused-appellant is on bail, his bail bond is cancelled and his sureties shall stand discharged. 23. Send back the Lower Court Records along with a copy of the judgment and order.