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2018 DIGILAW 2614 (JHR)

Lakhwa Devi v. State Of Bihar (now Jharkhand)

2018-11-29

H.C.MISHRA, RATNAKER BHENGRA

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JUDGMENT 1. Both these appeals arise out of the same impugned Judgment, and as such, they have been heard together and are being disposed of by this common Judgment. 2. Heard learned counsel for the appellants and the learned counsel for the State. 3. The appellants are aggrieved by the impugned Judgement of conviction dated 21.12.1995 and Order of sentence dated 23.12.1995, passed by the learned Additional Sessions Judge, Chatra, in S.T. No. 385 of 1993, whereby, all the appellants have been found guilty and convicted for the offence under Sections 302 / 34 of the Indian Penal Code. The appellants, Sarju Paswan, Lurka Paswan and Dhudhu Paswan were also found guilty and convicted for the offence under Section 148 of the Indian Penal Code, whereas the other appellants were found guilty and convicted for the offence under Section 147 of the Indian Penal Code. Upon hearing on the point of sentence, all the appellants have been sentenced to undergo imprisonment for life for the offence under Sections 302 / 34 of the Indian Penal Code. The appellants convicted under Section 148 of the Indian Penal Code have further been sentenced to undergo rigorous imprisonment for two years each, whereas the appellants convicted under Section 147 of the Indian Penal Code have been sentenced to undergo R.I for one year each, and all the sentences were directed to run concurrently. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant Tarwa Devi, the daughter-in-law of the deceased Manki Paswan, recorded on 2.12.1991 at Tandwa State Dispensary, P.S. Tandwa, District Chatra, at about 22:30 hours, wherein she has stated that on the same day at about 5:00 P.M, her father-in-law was warming himself at a fire on the chabutra outside the house. She was also spreading the paddy nearby. In the meantime, all the accused persons, namely, Sarju Paswan, Lurka Paswan, Dhudhu Paswan, Lakhwa Devi, Dukhan Dusadh and Chhotan Dusadh came there variously armed, and Sarju Paswan and Lurka Paswan assaulted her father-in-law by tangi on his head on the pretext that he had practiced witchcraft on their ox, and Dhudhu Paswan assaulted her father-in-law by tangi on his right hand. The other accused persons also assaulted and injured her father-in-law and when she tried to save her father-in-law, the accused persons chased her away. The other accused persons also assaulted and injured her father-in-law and when she tried to save her father-in-law, the accused persons chased her away. She raised alarm and with the help of the persons who had assembled there, she brought her father-in-law to the hospital, where he died in course of treatment. Claiming, that the accused persons had committed the murder of her father-in-law, the fardbeyan was given by the informant, on the basis of which, Tandwa P.S Case No.55 of 1991, corresponding to G.R No.644 of 1991, was instituted for the offences under Sections 147, 148, 149 & 302 of the Indian Penal Code, against the named accused persons, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 5. After commitment of the case to the Court of Session, charge was framed against the accused persons for the offences under Sections 147, 148 and 302 of the Indian Penal Code, and upon the accuseds'' pleading not guilty and claiming to be tried, they were put to trial. 6. In course of trial, twelve witnesses were examined by the prosecution, including the Doctor who had conducted the post-mortem examination on the dead body of the deceased. The I.O. of the case has not been examined, and the formal F.I.R has been proved as Exhibit-2 by a formal witness, P.W.-9 Bipin Kumar. Out of the material witnesses examined, P.W.-3 Jhalo Paswan and P.W.-8 Bharosi Sao were only tendered by the prosecution, whereas P.W.-6 Birendra Lal Bhagat and P.W.-7 Lakhan Gope have turned hostile and have not supported the prosecution case at all. 7. P.W.-10 Tarwa Devi is the informant in the case, and she has supported the prosecution case as eyewitness to the occurrence. She has stated that the occurrence had taken place about 4 years ago. Her father-in-law, Manki Dusadh was warming himself at a fire outside the house. She was inside the house, spreading paddy. In the meantime, the accused persons came and started assaulting her father-in-law, and upon the noise, she came out of the house. She has named the accused persons, stating that they were variously armed and stated that all the accused persons assaulted her father-in-law by tangi and lathi, due to which, he became unconscious. Thereafter, she went to the chowkidar and with the Chowkidar, she went the Police Station. The police came to the place of occurrence. She has named the accused persons, stating that they were variously armed and stated that all the accused persons assaulted her father-in-law by tangi and lathi, due to which, he became unconscious. Thereafter, she went to the chowkidar and with the Chowkidar, she went the Police Station. The police came to the place of occurrence. She has also stated that with the help of the family members, she had brought her father-in-law to the Police Station, and he was sent to the hospital for treatment, and while his wounds were being bandaged, her father-in-law died. She had given the statement before the police on which she had put her thumb impression. She has stated that the ox of Sarju had fallen ill, and they were alleging practice of witchcraft against her fatherin-law, due to which, the occurrence had taken place. She has identified the accused persons in the Court. In her cross-examination, this witness has stated that her father-in-law was aged about 80-90 years. She has also stated that at the time of occurrence, it had become dark, but to the Court''s question, she has stated that the occurrence had taken place soon after the Sunset and there was sufficient light for identifying the accused. She has specifically stated in her cross-examination that at the time of occurrence, there was no other family member, either male or female, present in her house. She has also stated that when the accused persons arrived, she was inside the house and by the time she came out, her fatherin-law had fallen down. She has stated that though the occurrence had taken place for about half an hour, but no one came at the place of occurrence. She has stated that her house is situated by the side of the main village road itself, and it was a market day. She has denied the suggestion that several persons were commuting on the road at the time of occurrence, from the market. She has also stated that at the Police Station, her father-in-law had named the accused persons, but the case was instituted on her statement. She has denied the suggestion of falsely implicating the accused persons. 8. P.W.-4 Kaushalya Devi is the other daughter-in-law of the deceased and eyewitness to the occurrence. She has also stated that at the Police Station, her father-in-law had named the accused persons, but the case was instituted on her statement. She has denied the suggestion of falsely implicating the accused persons. 8. P.W.-4 Kaushalya Devi is the other daughter-in-law of the deceased and eyewitness to the occurrence. This witness has stated that her father-in-law was killed about three years ago, and at the time of occurrence, he was warming himself in front of the house. She was in her house when the accused persons came variously armed. She has named only Sarju Paswan, Lurka and Dhudhu and stated that due to darkness, she could not identify the other persons. She has stated that on the pretext of practicing witchcraft on the ox, the accused Dhudhu and Lurka assaulted her father-in-law by tangi on his head and back and other accused persons assaulted him by lathi. Her father-in-law fell down being injured, and he was brought to hospital, where he died in course of treatment. She has identified the accused persons in the Court. In her cross-examination, this witness has clearly stated that at the time of occurrence, only she and her husband were present in the house. She has also stated that her house is by the side of the village road and at the time of occurrence, it was dark. Her father-in-law was aged about 80-85 years old and she was informed about the occurrence by her husband. She has also denied the suggestion of giving false evidence. 9. P.W.-1 Shambhu Paswan and P.W.-2 Gainda Paswan are the sons of the deceased, but they are not the eyewitnesses to the occurrence. P.W.-1 Shambhu Paswan has stated that he was returning from the market when he saw the accused persons fleeing away after committing the offence, and he was also assaulted by Lakhwa Devi by lathi, whereas P.W.-2 Gainda Paswan has stated that he was returning from his field and he saw Sarju and Lurka fleeing away after committing the offence. 10. P.W.-5 is (Dr.) Gopal Das, who had examined the informant, but had found no injury on her body. He has proved her injury report, which was marked Exhibit-1. 11. P.W.-12 Shiv Shambhu Paswan is a witness to the inquest report and he has proved the signatures on the inquest report, which were marked Exhibits 4 & 4/1 respectively. 10. P.W.-5 is (Dr.) Gopal Das, who had examined the informant, but had found no injury on her body. He has proved her injury report, which was marked Exhibit-1. 11. P.W.-12 Shiv Shambhu Paswan is a witness to the inquest report and he has proved the signatures on the inquest report, which were marked Exhibits 4 & 4/1 respectively. This witness has not stated anything about the dead body, and he has stated that the inquest report was not prepared in his presence. 12. P.W.-11 Dr. Nand Kishore Prasad Jaiswal had conducted the post-mortem examination on the dead body of the deceased on 03.12.1991, and had found the following ante-mortem injuries:- (I) Stitched wound over scalp on posterior parietal region about 3". No. of stitches 8. Upon further exploration of the wound, there was subcutaneous haematoma adjacent area of the wound. Underlying parietal (right) bone was fractured in linear fashion and dura matter was visible through fractured bone. There was sub-dural hematoma about 3 " x ". The underlying brain matter was contused. (II) Lacerated wound with swelling on the back of left fore-arm about 2" x 3" reddish colour. (III) The following were the postmortem findings :- Rigor mortis present in both upper and lower limbs and was absent in neck. Face-Pale Heart-both side empty. Heart valve pale. Liver, spleen, kidney-all pale, due to loss of blood. He has stated that the cause of death was shock and haemorrhage resulting from the above ante-mortem injuries and the time elapsed since death was about 20 hours. He has proved the post-mortem report to be in his pen and signature, which was marked Exhibit-3. 13. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. No evidence was adduced by the defence. On the basis of the evidence on record, the accused-appellants have been found guilty, convicted and sentenced as aforesaid, by the Trial Court below. 14. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law, inasmuch as, there are only two witnesses, claiming to be the eye witnesses to the occurrence, who are P.W.-4 Kaushalya Devi and P.W.-10 Tarwa Devi, the daughters-in-law of the deceased. It is submitted that the evidence of both these eye witnesses are quite contrary to each other, and both these witnesses have completely ruled out the presence of each other in their cross-examinations. It is submitted that at the time of occurrence, admittedly it was dark and both these witnesses have falsely claimed to be the eye witnesses to the occurrence. Learned counsel has submitted that the other witnesses examined are either not the eye witnesses to the occurrence, or were either tendered or have turned hostile. Learned counsel has pointed out that the enmity is admitted by P.W.-1 Shambhu Paswan and in view of the admitted enmity it is not safe to rely upon the evidence of these two eye witnesses. It is further submitted that the I.O. has not been examined in the case which has caused prejudice to the defence and in the facts of this case the prosecution has failed to bring home the charges against the accused persons beyond all reasonable doubts. As such, the appellants were entitled at least to the benefits of doubt. 15. Learned counsel for the State on the other hand, has opposed the prayer, submitting that the prosecution case is fully supported by the two eye witnesses, viz., P.W.-4 Kaushalya Devi and P.W.-10 Tarwa Devi, the daughters-in-laws of the deceased, and their ocular evidence is also corroborated by the medical evidence of P.W.-11 Dr. Nand Kishore Prasad Jaiswal and the post-mortem report proved by him as Exhibit-3. It is submitted by learned counsel for the State, that prosecution has been able to bring home the charges against the accused persons beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, worth any interference by this Court. 16. Having heard learned counsels for both the sides and upon going through the record, we find that prosecution case is supported by the two eye witnesses to the occurrence, who are, P.W.-4 Kaushalya Devi and P.W.-10 Tarwa Devi, the two daughters-in-law of the deceased. P.W.-10 Tarwa Devi is also the informant in the case and though she has supported the prosecution case as eye witnesses to the occurrence, but there are material contradictions in her statement in the F.I.R., as well as in her deposition in the Court. P.W.-10 Tarwa Devi is also the informant in the case and though she has supported the prosecution case as eye witnesses to the occurrence, but there are material contradictions in her statement in the F.I.R., as well as in her deposition in the Court. In the F.I.R. it is stated that she was spreading the paddy where her father-in-law was sitting in front of the house, whereas in her evidence she has stated that she was inside the house and upon hearing the noise she came out and saw the occurrence. Though in the F.I.R., she has made specific allegation of assaults by tangi on the head of the deceased, against Sarju Paswan and Lurka Paswan, and of assault by tangi on the hand of the deceased, against Dhudhu Paswan, but in her evidence, she has made only omnibus allegation of assault against all the accused persons, whereas the other eye witness, P.W.-4 Kaushalya Devi had made the specific allegation of assault by tangi on the head of the deceased, only against Lurka Paswan and Dhudhu Paswan. Though she has named Sarju Paswan also, but she has not made any specific allegation of assault against him and the evidence of both these witnesses clearly rule out the presence of either of them at the place of occurrence, inasmuch as, P.W.-4 Kaushalya Devi has stated in her cross-examination that at the time of occurrence, only she and her husband were present in the house, whereas P.W.-10 Tarwa Devi has stated that at the time of occurrence, no other family member, either male or female, was present in the house. It is also very doubtful, whether these witnesses are the eye witnesses to the occurrence, as P.W.-10 Tarwa Devi has stated in her cross-examination that while she came out of her house, her father-in-law had already fallen down being injured, whereas P.W.-4 Kaushalya Devi has stated in her cross-examination that she was informed about the occurrence by her husband. Both the sons of the deceased are not the eyewitness to the occurrence. One son, P.W.-1 Shambhu Paswan has admitted the enmity between the parties. The other witnesses were only tendered, or have turned hostile and have not supported the prosecution case. Both the sons of the deceased are not the eyewitness to the occurrence. One son, P.W.-1 Shambhu Paswan has admitted the enmity between the parties. The other witnesses were only tendered, or have turned hostile and have not supported the prosecution case. Since the I.O. has not been examined in the case, we have looked into the case diary in the interest of the justice, and we find that P.W.-1 Shambhu Paswan was actually the eye witness to the occurrence, stating before the police that he had seen the accused persons assaulting his father. It is surprising as to how he has not deposed as the eye witness to the occurrence, and he has not been declared hostile by the prosecution. No independent witness has supported the prosecution case, though it is an admitted fact that the house of the deceased was by the side of the main village road, it was a market day, and the time of occurrence is about 5:00 PM, or soon after Sunset. We are of the considered view that in view of the contradictions as detailed above, the accused appellants were entitled at least to the benefits of doubt, and the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below, cannot be sustained in the eyes of law. 17. For the foregoing reasons, the impugned Judgement of conviction dated 21.12.1995 and Order of sentence dated 23.12.1995, passed by the learned Additional Sessions Judge, Chatra, in S.T. No. 385 of 1993, convicting and sentencing the appellants, Lakhwa Devi, Dhudhu Paswan, Chhotan Paswan, Dukhan Paswan, Sarju Paswan and Lurka Paswan, for the offences under Sections 147, 148 & 302 / 34 of the Indian Penal Code, are hereby, set aside. Consequently, all the appellants are given the benefits of doubt and they are acquitted of the charges. The appellants are on bail and they are discharged from the liabilities of their respective bail bonds. 18. Both these appeals are accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.