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2014 DIGILAW 677 (PAT)

Subodh Mandal v. State of Bihar

2014-06-18

PRABHAT KUMAR JHA, V.N.SINHA

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JUDGMENT : V.N. SINHA, J.:–These two appeals have been filed by the son, father as both have been convicted for the offences under Sections 302/34, 201/34 of the Penal Code and Section 4 of the Dowry Prohibition Act under impugned judgment dated 24.01.2014, passed by Additional District & Sessions Judge-I, Katihar, in Sessions Trial No. 11/2012. They have further been sentenced under order dated 30.01.2014 to undergo imprisonment for life, Rigorous Imprisonment for five years under Sections 302/34, 201/34 of the Penal Code and six months Simple Imprisonment under Section 4 of the Dowry Prohibition Act. 2. Prosecution case as set out in the fardbeyan of informant Lakshman Mandal (P.W.6) dated 23.03.2011, scribed by Yugal Kishore Ram (P.W. 5) on 23.03.2011 at 8:00 A.M. on the bank of Mahananda river in village Lalganj Teghra is that Gangu Mandal, father of Subodh Mandal lodged a case against the informant and his family members alleging abduction of his son in which Final Form was submitted by the police recommending action against Gangu Mandal under Sections 182, 211 I.P.C. At about the same time, son of Gangu Mandal got married to the daughter of the informant in a temple, Gangu Mandal, however, refused to allow the daughter of the informant Sulekha Devi to reside in his house as his daughter-in-law. Sulekha Devi used to reside with her parents i.e. informant, P.W. 4 and earn wages along with them. Gangu Mandal was also threatening the informant that he will not let his daughter enjoy the benefit of conjugal life. Meanwhile, on 09.03.2011 Subodh Mandal made a call on Mobile No. 7250404847 of Sulekha Devi and asked her to come to his Basa (hut situate away from village). Having received the telephone call, daughter of the informant pretended that she is going for grass-cutting, went to meet Subodh Mandal around 4:00 P.M. but did not return thereafter. In the morning on 23.09.2011 the village boys returned from the bank of the river, informed the informant that they had seen a dead body buried in the sand on the bank of the river. In the morning on 23.09.2011 the village boys returned from the bank of the river, informed the informant that they had seen a dead body buried in the sand on the bank of the river. Having learnt about the dead body buried on the bank of river from the village boys, informant along with his wife came to the bank of the river and identified the body with the help of the bangle(s), saree that the dead body was of his daughter and then came to Roshna Out Post, informed the officer present at the Out Post about the occurrence and thereafter came back to the bank of the river with the in-charge of the Out Post and in his presence dead body of his daughter was dug out. In the concluding portion of the fardbeyan informant claimed that his daughter, deceased Sulekha Devi, was called by Subodh Mandal telephonically and thereafter Subodh Mandal, his father Gangu Mandal along with their accomplice killed her and buried the dead body on the bank of the river. Brother-in-law of the informant Ram Prasad Singh (P.W. 1) has also put his signature over the fardbeyan. 3. Having recorded the fardbeyan P.W. 5 forwarded the same to Pranpur Police Station for lodging of the First Information Report, whereafter the present case was lodged by one Sujit Chaudhary, Officer-in-Charge, Pranpur Police Station on 23.03.2011 with further endorsement that the investigation of the case has already been taken over by Sri Yugal Kishore Ram (P.W. 5). During investigation of the case, Yugal Kishore Ram (P.W. 5) was transferred, handing over the investigation of the case to Sri Narendra Kumar (P.W.7), who submitted charge-sheet in the case. In the light of the charge-sheet, cognizance was taken and case committed to the Court of Sessions for trial of the accused persons, charges were framed for the offences under Sections 302/34, 201/34, 498A/34 of the Penal Code and Sections 3, 4 of the Dowry Prohibition Act. 4. In support of the charge, prosecution examined eight witnesses, namely, P.W. 1 Ram Prasad Singh, brother-in-law of the informant, who put his signature over the fardbeyan. P.W. 2 Madan Mandal, nephew of the informant, who is the witness of inquest (Exhibit-5). 4. In support of the charge, prosecution examined eight witnesses, namely, P.W. 1 Ram Prasad Singh, brother-in-law of the informant, who put his signature over the fardbeyan. P.W. 2 Madan Mandal, nephew of the informant, who is the witness of inquest (Exhibit-5). P.W. 3 Bhado Devi, elder daughter of the informant, P.W. 4 Sumitra Devi, mother of the deceased and wife of the informant (P.W. 6), P.W. 5 Yugal Kishore Ram the In-charge of Roshna Out Post., who scribed the fardbeyan of the informant. P.W. 6 Lakshman Mandal, the father of the deceased, is the informant. P.W. 7 Narendra Kumar is the second Investigating Officer of the case, who submitted charge-sheet. P.W. 8 Dr. Amar Kumar Deo conducted post mortem on the dead body of Sulekha Devi and submitted post mortem report (Exhibit-9), wherefrom it appears that Sulekha Devi was killed 7-8 days prior to the post mortem examination i.e. on 09.03.2011, the date of her disappearance. 5. Trial Court having considered the evidence of the aforesaid P.Ws., proceeded to convict both Gangu Mandal and his son Subodh Mandal of the charge under Sections 302/34, 201/34 of the Penal Code and Section 4 of the Dowry Prohibition Act and sentenced them to suffer imprisonment as stated above. 6. It is submitted on behalf of the appellants that the conviction of both the appellants have been recorded by the trial Court without there being any evidence to indicate that it was the two appellants who killed Sulekha Devi on 09.03.2011, after she left her house around 4:00 P.M. or any time thereafter. In this connection, it is pointed out that from the post mortem report (Exhibit-9) it is established that Sulekha Devi was killed 7-8 days prior to the date of her post mortem, meaning thereby that she was killed on 09.03.2011, the date on which she disappeared from her house after pretending that she is going for grass-cutting, as has been claimed by the informant himself in the fardbeyan as also in his evidence but there is no evidence on record to suggest that these two appellants killed her. 7. 7. Assertion of the informant that his daughter was called by Accused No. 2 Subodh Mandal by making a call on her Mobile No. 7250404847 has not been established as prosecution has failed to provide the mobile number of either Subodh Mandal (Accused No. 2) or his father Gangu Mandal (Accused No. 1) by which he called Sulekha Devi on her mobile and there being nothing to establish that any call was made by either Subodh Mandal or his father Gangu Mandal to Sulekha Devi on 09.03.2011, the very premise of the prosecution case that it was Subodh Mandal who called his wife and thereafter she was killed and buried on the bank of the river, is nothing but conjecture, as there is no evidence on record to connect either Subodh Mandal or his father Gangu Mandal with the telephone call which was received by Sulekha Devi on her Mobile No. 7250404847 or with her murder. In this connection, it is further submitted that no evidence at all has been brought on record to establish that aforesaid Mobile No. 7250404847 was subscribed by Sulekha Devi or her father or anybody in their family. 8. It is next submitted that Sulekha Devi having pretended that she is going for grass-cutting on 09.03.2011 around 4:00 P.M. but when she did not return home in the evening, it was required of the informant and his other family members to have reported the factum of Sulekha Devi having gone missing to Roshna Out Post after she had gone for grass-cutting but did not return. It is submitted that informant and his family members having not reported about the factum of Sulekha Devi having gone missing on 09.03.2011 itself weakens the prosecution case that the daughter of the informant Sulekha Devi went missing after she left the house on 09.03.2011 around 4:00 P.M. for grass-cutting. 9. Learned counsel further submitted that after recovery of the dead body of Sulekha Devi on 23.03.2011, there is no dispute that she has been killed, but according to learned counsel for the appellants the identity of her assailants has not at all been established by the prosecution by adducing evidence as prosecution has not been able to connect either of these two appellants with the killing of Sulekha Devi. In this connection, it has been further pointed out with reference to the post mortem report itself that there was no injury found on the person of the deceased Sulekha Devi and the doctor conducting the post mortem could not ascertain the cause of death and preserved her viscera for chemical examination, which was also sent for examination, but the report from the Chemical Examiner was never received. In order to ascertain the result of the chemical examination of the viscera to find out cause of death of Sulekha Devi, we were initially inclined to remit back the matter, but remand of the matter is also not likely to establish the identity of those who killed Sulekha Devi may be by poisoning her, in the facts and circumstances of the case, we thought it appropriate not to remand the matter for ascertaining the result of the chemical examination of the viscera of the deceased. 10. On the record, besides the oral evidence, there is only the fardbeyan, First Information Report, Inquest Report (Exhibit-5) and the post mortem report (Exhibit-9), wherefrom it is difficult to connect the two appellants with the killing of Sulekha Devi, as there is not even an iota of evidence connecting the two appellants with the killing of Sulekha Devi. The evidence of the informant (P.W. 6), his wife (P.W. 4) and the elder daughter of the informant (P.W. 3) is only conjecture, as they are all deposing in evidence that deceased went after receiving the call from Accused No. 2 Subodh Mandal but there is nothing to establish that it was Accused No. 2 who made such call to Sulekha Devi, which persuaded her to leave her house on 09.03.2011 at 4:00 P.M. pretending that she is going for grass-cutting whereafter she never returned, her dead body discovered on 23.03.2011 at 8:00 A.M. 11. There being no evidence to connect the two appellants with the killing of Sulekha Devi, we have no option but to set aside the impugned judgment of conviction dated 24.01.2014 and the order of sentence dated 30.01.2014, which is accordingly set aside with direction to release Subodh Mandal (Accused No. 2) from custody forthwith, if not wanted in any other case. So far Accused No. 1 Gangu Mandal is concerned, he is directed to be discharged from the liability of his bail bond. So far Accused No. 1 Gangu Mandal is concerned, he is directed to be discharged from the liability of his bail bond. The appellants are, however, directed to execute bail bond in terms of Section 437(A) of the Cr.P.C. to the satisfaction of the trial Court. 12. Both the appeals stand allowed. 13. Send back the Lower Court Record. ?