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2017 DIGILAW 2038 (JHR)

Deb Kumar Bhadra v. State of Jharkhand

2017-11-25

ANIL KUMAR CHOUDHARY, H.C.MISHRA

body2017
JUDGMENT : Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the Judgment of conviction and Order of sentence dated 20th December, 2004, passed by the learned 1st Additional Sessions Judge, Dhanbad, in S.T. No. 186 of 1995, whereby, the sole appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life and fine of Rs. 1,000/- for the said offence. 3. The prosecution story was instituted on the basis of the fardbeyan of the deceased lady Pancha Devi, which was recorded on 7.3.1993 (though at the top of the fardbeyan, the date is mentioned 9.7.1993, which has been penned through and written 7.3.1993 and in the body of the fardbeyan the date is written 7.6.1993, which has been overwritten as 7.3.1993). She had given her fardbeyan in her house, situated at Putki-2, P.S.-Putki, District-Dhanbad at about 12:15 hours, wherein she had described herself as the wife of the accused Deb Bhadra, but she has stated that she was married to one Madan Sah, who was living in Harijan Colony, and about three years ago, she was brought by the accused to his house and she was living with him. It is stated that the accused used to abuse her after taking wine and after keeping her, he again married another lady. She has stated that in the last month, one evening, the accused came in drunken state and asked her to lit the chulha and while she was liting the chulha, he poured K. oil on her and put her to fire. She has stated that her son Mahesh Kumar, who at that time was aged about six years, pulled her cloths and she has also separated her cloths, but by that time, her entire body was burnt, except her face. On the next day, she was brought to hospital, where, she remained for about ten to fifteen days, where, while she was unconscious, the accused had given the statement that she was burnt accidentally. Claiming that she was burnt by the accused Deb Bhadra, the fardbeyan was recorded, upon which, she put her thumb impression. On the next day, she was brought to hospital, where, she remained for about ten to fifteen days, where, while she was unconscious, the accused had given the statement that she was burnt accidentally. Claiming that she was burnt by the accused Deb Bhadra, the fardbeyan was recorded, upon which, she put her thumb impression. On the basis of the fardbeyan, Putki P.S. Case No. 34 of 1993, corresponding to G.R. No. 893 of 1993 was instituted on 7.3.1993, for the offence under Sections 324 and 307 of the Indian Penal Code, and investigation was taken up. Subsequently the deceased died and after her death, Section 302 of the Indian Penal Code was also added by order dated 12.3.1993. After investigation, the police submitted the charge-sheet against the accused. 4. It may be stated that though the FIR was said to have been lodged on 7.3.1993 and Section 302 of the Indian Penal Code was added by order dated 12.3.1993, but the FIR clearly shows that it reached in the Court of CJM on 12.3.1993 itself. Thus, it is apparent that it was only after the death of the deceased, the FIR was sent to the Court. 5. After commitment the case to the Court of Session, the charge was framed against the accused for the offence under Section 302 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. 6. In course of trial, nine witnesses have been examined by the prosecution, out of whom, PW-1 Sayara Khatoon, PW-2 Savitri Devi, PW-5 Sahnaz Khatoon, PW-6 Khalil Mian and PW-7 Zamir Mian have turned hostile and have not supported the prosecution case at all. 7. PW-4 Mahesh Kumar Verma is the child witness, who was present at the time of alleged occurrence. At the time of his examination, he was aged about twelve years. This witness has stated that the deceased was his mother, who was burnt to death by accused Debu Bhadra, while she was near the chulha. Debu Bhadra put her to fire. He has stated that his mother died about six years ago in the hospital during treatment. He has also stated that he had seen his mother in the burnt condition. There used to be quarrel between his mother and the accused, who had enticed her away. Debu Bhadra put her to fire. He has stated that his mother died about six years ago in the hospital during treatment. He has also stated that he had seen his mother in the burnt condition. There used to be quarrel between his mother and the accused, who had enticed her away. He has claimed to identify the accused in the Court. In his cross-examination, this witness has stated that at the time of burning of his mother, the accused had put cloth in the mouth of this witness, tied him and kept him in the corner of the house and after about two hours of the occurrence, he was set free. He has also admitted in his cross-examination that he had not stated before the police that he was tied and kept at the corner of the house at the time of occurrence. He has denied the suggestion that the accused has been falsely implicated in this case. 8. PW-3 Madan Sao is the husband of the deceased, who has stated that the deceased was his wife, who was taken away by the accused Debu Bhadra. Subsequently, she was burnt to death. He is only the hearsay witness and he was informed about the occurrence later by one Pragatisheel Mahila Manch. In his cross-examination this witness has stated that he had lodged a case upon Debu prior to this case, and he has denied the suggestion that the accused had been acquitted in that case in the year 1994 itself. 9. PW-9, who has been wrongly mentioned as PW-8, is Dr. D.K. Dhiraj, who had conducted the post mortem examination on the dead body of the deceased on 11.3.1993 at 5:15 PM and had found the following:- Parital skin deep ante mortem burn injuries were seen with evidence of healing on the buttock, lower part of the back of trunk, back of thighs, knees and upper half of legs on back. In and around back knee, it was muscle deep with evidence of stiffness of joint. In the right abdominal flunk and front and sides of the upper half of the right thigh, it was partial skin deep. On dissection, internal organs were found pale. Both sides of the heart, the stomach and the urinary bladder were empty. The uterus was non-pregnant. Skull and brain normal. In the right abdominal flunk and front and sides of the upper half of the right thigh, it was partial skin deep. On dissection, internal organs were found pale. Both sides of the heart, the stomach and the urinary bladder were empty. The uterus was non-pregnant. Skull and brain normal. This witness has stated, that the death resulted in a consequence of burn injury and time elapsed from death was within 36 hours. This witness has identified the post mortem report to be in his pen and signature, which was marked as Ext.-3. 10. PW-8, wrongly mentioned as PW-7 is Awadhesh Kumar Singh, is the Police Officer, who had only submitted the chargesheet in the case. He has only proved the formal FIR and the fardbeyan as Exts.-1 and 2 respectively. The main I.O. of the case has not been examined by the prosecution. 11. In his statement recorded under Section 313 of the Cr.P.C., the accused has denied the evidence against him. Four documents have been proved by the defence, out of which, Ext.-A is Sanha No. 54 dated 3.1.1993, Exts.-B and C are the certified copies of the Judgments of the another criminal cases lodged by Madan Sao against the accused, and Ext.-D is the certified copy of the deposition of the deceased in one of these cases, which shows that the deceased had deposed that she was being subjected to cruelty and torture by her husband and she was turned out of her house, due to which, she was living separately at her parents place. 12. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court is absolutely illegal and cannot be sustained in the eyes of law, as most of the witnesses have turned hostile. The prosecution case is supported only by the child witness, but the evidence of the child witness also cannot be relied upon as, though in the FIR, it is stated that at the time of occurrence, this child had pulled away the cloths of the deceased and tried to save her, but in his evidence, this child, PW-4 Mahesh Kumar Verma has stated that at the time of occurrence, the accused had put cloth in his mouth, tied him and put him in the corner, and he was set free only after two hours of the occurrence. It has further been pointed out that this witness has stated that his mother died in the hospital while undergoing treatment, but the FIR would shows that the fardbeyan was recorded at the house and not in the hospital, which clearly shows that she had given her fardbeyan after discharge from the hospital, at her house. Learned counsel has also submitted that the main I.O. of the case has not been examined and the entire case is doubtful, in as much as, the exact date of the occurrence or the date of death of the deceased have not come on record. It has been submitted that the fardbeyan was recorded in the house of the deceased and the occurrence is said to have been taken place about one month earlier, but no police case was instituted during this time. It has been further submitted that though there are cutting and interpolation on the date of recording of the fardbeyan, but even if it is taken that the fardbeyan was recorded on 7.3.1993 and the FIR was lodged on 7.3.1993, but the same was sent to the Court of CJM only on 12.3.1993, as is apparent from the FIR. Section 302 of IPC was also added vide order dated 12.3.1993 itself, which also creates suspicion. Learned counsel further submitted that the Doctor, treating the deceased, has not been examined in the case and Ext.-A, which is proved by the defence, which is Sanha entry, would show that it is actually the fardbeyan of the deceased recorded in the hospital, wherein she stated before the police that she caught fire accidentally, but this document has been concealed by the prosecution and has not been proved. Learned counsel accordingly, submitted that the case is full of doubts and the prosecution has not come out with the clean hands and accordingly, it is a fit case for acquittal of the accused. 13. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the FIR was lodged by the deceased herself and the facts in the FIR is also supported by the sole child witness, PW-4 Mahesh Kumar Verma. The evidence of this witness is also fully corroborated by the medical evidence of PW-9 Dr. 13. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the FIR was lodged by the deceased herself and the facts in the FIR is also supported by the sole child witness, PW-4 Mahesh Kumar Verma. The evidence of this witness is also fully corroborated by the medical evidence of PW-9 Dr. O.K. Dhiraj, who found the burn injuries on the dead body of the deceased and has proved that her death was caused due to burn injuries. Learned counsel accordingly, submitted that the prosecution has been able to bring home charge against the appellant accused beyond all reasonable doubts. 14. Having heard learned counsels for both the sides and upon going through the record, we find that the FIR in this case is absolutely doubtful. There are interpolations in the date of recording the fardbeyan, and even if, it is taken that the fardbeyan was recorded on 7.3.1993, but the fact remains that according to the fardbeyan of the deceased herself, the occurrence had taken place about one month ago and she remained in the hospital for ten to fifteen days and after returning back from the hospital, she had given the fardbeyan in the house. The actual date of occurrence or the actual date of death of deceased is neither apparent from the fardbeyan, nor from the evidence on record, and it is only a mystery in the case and has not been stated by any witness. Though the FIR was lodged on 7.3.1993 and Section 302 of the Indian Penal Code was added vide order dated 12.3.1993, but the FIR itself shows that it was received in the Court of CJM on 12.3.1993 itself, which clearly shows that the FIR was sent to the Court only after the death of the deceased. All the material witnesses, except PW-3 Madan Sao and PW-4 Mahesh Kumar Verma, have turned hostile. PW-3 Madan Sao is only a hearsay witness and there are material contradictions in the evidence of PW-4 Mahesh Kumar Verma, who has stated that his mother died while treatment in the hospital, even though the fardbeyan is shown to have been recorded in the house. PW-3 Madan Sao is only a hearsay witness and there are material contradictions in the evidence of PW-4 Mahesh Kumar Verma, who has stated that his mother died while treatment in the hospital, even though the fardbeyan is shown to have been recorded in the house. Though in the fardbeyan it is stated that the child had tried to save his mother by pulling away her cloths, but in his evidence this witness has stated that at the time of occurrence, he was tied and put in the corner with his mouth shut with cloth and he was set free by the accused only after two hours after the occurrence. Ext.-A, which is proved by the defence, though is a Sanha entry, but in fact it is actually the fardbeyan of the deceased, which was recorded at the Sadar Hospital, Dhanbad, on 17.12.1992, and it is a mystery as to why, the case was not instituted on this fardbeyan and why this fradbeyan had been concealed by the prosecution. In this fardbeyan, the deceased has clearly stated that she was accidentally burnt while she was liting the chulha. Even the recording the fardbeyan of the deceased in the house, is doubtful in the case, as the evidence shows that the deceased died due to burn injuries, and there appears to be no reason as to why she was released from the hospital, once she was admitted there. Indeed the child witness has stated that his mother died in the hospital, and there are interpolations in the date of recording the fardbeyan. The Investigating Officer has not been examined in the case, which has caused serious prejudice to the defence, as some light could have been thrown on these mysteries, had he been examined and cross-examined. In the facts of this case, we are of the considered view that the prosecution case is full of doubts only, and it is a fit case, in which, the accused ought to have been acquitted by the Trial Court. As such, the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. 15. For the foregoing reasons, the impugned Judgment of conviction and Order of sentence dated 20th December, 2004, passed by the learned 1st Additional Sessions Judge, Dhanbad, in Sessions Trial No. 186 of 1995, are hereby, set aside. As such, the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. 15. For the foregoing reasons, the impugned Judgment of conviction and Order of sentence dated 20th December, 2004, passed by the learned 1st Additional Sessions Judge, Dhanbad, in Sessions Trial No. 186 of 1995, are hereby, set aside. Consequently, the accused appellant Deb Kumar Bhadra, is found not guilty and he is acquitted of the charge. The appellant is in custody and is serving out the sentence. He is directed to be released from custody set at liberty forthwith, if his detention is not required in any other case. 16. This appeal is accordingly, allowed. Let the Lower Court Records be sent back forthwith to the Court concerned, along with a copy of this Judgment.