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2023 DIGILAW 1410 (PAT)

Dharam Mahato v. State of Bihar

2023-12-22

ARVIND SRIVASTAVA, SUNIL DUTTA MISHRA

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Sunil Dutta Mishra, J.—Heard learned counsel for the appellants and learned Additional Public Prosecutor for the State. 2. Originally, this appeal was filed also by Suraj Mahto, Laxmi Mahto and Somari Yadav along with the aforesaid appellants but due to their death, vide order dated 06.11.2023, appeal filed by appellants, namely, Suraj Mahto, Laxmi Mahto and Somari Yadav has been abated. 3. The instant appeal has been preferred against the judgment and order dated 31st May, 1996 passed in Sessions Trial No. 96 of 1995, by the learned Sessions Judge, West Champaran at Bettiah. 4. By the impugned judgment and order appellant no. 1, Dharam Mahato was convicted and sentenced to undergo rigorous imprisonment for life for the offence under Section 302 of the Indian Penal Code and three years rigorous imprisonment for the offence under Section 201 of the Indian Penal Code with direction that both the sentences awarded against appellant no. 1 will run concurrently and appellant no. 2, Meena Devi was convicted and sentenced to undergo rigorous imprisonment for a period of three years under Section 201 of the Indian Penal Code. 5. Prosecution case, in short, is that on the basis of written report dated 30.04.1994 (Exhibit-2) of Ram Prasad Mahato (PW-5) addressed to the Superintendent of Police, West Champaran at Bettiah, Bettiah Muffasil P.S. Case No. 62 of 1994 was registered on 02.05.1994 for the offences under Sections 302/ 201 of the Indian Penal Code for the occurrence alleged to be occurred on 27.04.1994. It is alleged in the said written report of the informant that his daughter Nirmala Devi was married with Dharam Mahato (accused appellant no. 1) in village Shekhauna Math in the year 1985 and since then till December 1993, Nirmala Devi used to come and go at the house of the informant but for some years on account of mutual differences with her husband, Nirmala Devi did not like to live in her matrimonial home and had orally conveyed that her in-laws used to threaten her to kill her. It was informed by the daughter of informant that appellant no. 1 was residing with wife of his elder brother, Laxmi Mahto and due to that reason they had mutual difference and she does not want to live there. The informant along with 5-6 relatives went there and held a Panchayati where their differences were got settled. It was informed by the daughter of informant that appellant no. 1 was residing with wife of his elder brother, Laxmi Mahto and due to that reason they had mutual difference and she does not want to live there. The informant along with 5-6 relatives went there and held a Panchayati where their differences were got settled. Thereafter, his Samadhi, Suraj Mahto by sending his son, call back victim Nirmala Devi to her matrimonial home. On 28.04.1994 the information was sent by an unknown person at about 2 to 2.30 P.M. that his daughter had died on 27.04.1994 and also performed funeral ceremony (Dah-sanskar). On receiving the aforesaid information he visited Shekhauna (the house of his son-in-law) and enquired with his Samadhi, Suraj Mahto, with respect to death of his daughter who had not given satisfactory answer, which shows that his daughter might have been killed. The informant further stated in the First Information Report that his daughter was pregnant with four months. He found that her Dah-sanskar was not performed where the people of village used to perform and had cremated the dead body in a corner of his field and due to that about 10 shisham tree was also burnt. The informant on that background filed written report on 30.04.1994 before the Superintendent of Police, West Champaran, Bettiah for taking action against husband and in-laws of her daughter i.e. Suraj Mahto, Laxmi Mahto, Dharam Mahato (appellant no. 1), Mina Devi (appellant no. 2) and Somari Yadav and accordingly the aforesaid case was instituted. 6. Investigation of the case was carried out by the Investigating Officer and after completion of investigation, he has submitted charge-sheet against accused persons including the appellants. Thereafter, the case was committed to the Court of Sessions and charge was framed against the appellants under Sections 302/34, 302/149 and 201 of the Indian Penal Code. 7. In order to substantiate the charges, the prosecution adduced following six witness:— PW -1 Kapildeo Raut (Hostile) PW-2 Sheojee Prasad (another son-in-law of informant) PW-3 Khobhari Mahto PW-4 Ram Swarup Ram PW-5 Ram Prasad Mahto (Informant) PW-6 Baleshwar Prasad (Investigating Officer) 8. The prosecution also brought on record two letters dated 10.05.1992 and 08.05.1994 which have been marked as Ext. 3 and 3/1. 9. After completion of oral as well as documentary evidence, the statement of accused under Section 313 of the Cr.P.C. were recorded. The prosecution also brought on record two letters dated 10.05.1992 and 08.05.1994 which have been marked as Ext. 3 and 3/1. 9. After completion of oral as well as documentary evidence, the statement of accused under Section 313 of the Cr.P.C. were recorded. The defence contended that they have falsely been implicated in this case. The deceased Nirmala Devi died at the house of the accused persons on account of Cholera disease. 10. In defence, accused persons examined following three witnesses:— DW-1 Harendra Mahto DW-2 Amar Raut DW-3 Dr. Ashok Kumar Singh. 11. At the conclusion of the trial, the Trial Court convicted the appellants and sentenced them as aforesaid. 12. Feeling aggrieved by the said judgment and order this appeal has been filed. 13. It will be most appropriate to note the findings given by the learned Trial Court for convicting the accused persons/ appellants and sentencing them accordingly. It is held therein that Nirmala Devi died at the house of the accused persons on 27.04.1994 and the accused persons disposed of her dead body in undue haste without giving information of her death to her father. Accused Dharam Mahato (appellant no. 1) was having sufficient grievance with his wife Nirmala Devi for committing her murder. The letter (Ext.-3) is sufficient enough to support the motive on the part of accused Dharam Mahato to commit murder of his wife Nirmala Devi. The accused persons burnt the dead body of Nirmala Devi surreptitiously in haste only with a view to destroy the evidence of her death because Nirmala Devi did not die of any disease but her death took place in certain mysterious circumstances indicating her murder with a view to suppress the evidence of her murder. The accused persons disposed of the dead body by burning it. The circumstances attending with the case are closely linked with one and other and are of such clinching nature that only one inference could be drawn that accused Dharam Mahato committed murder of his wife. 14. The accused persons disposed of the dead body by burning it. The circumstances attending with the case are closely linked with one and other and are of such clinching nature that only one inference could be drawn that accused Dharam Mahato committed murder of his wife. 14. It is further held by the Trial Court that all the accused persons were party to the screening of the evidence of her death in unusual manner and it is apparent that all the accused persons in connivance and close association destroyed the said evidence of murder of Nirmala Devi by burning her dead body and for their alleged conduct the offence under Section 201 of the Indian Penal Code is fully made out against them. 15. Learned counsel for the appellants submitted that there is no cogent material against the appellants and the entire family members have been falsely implicated only on the basis of suspicion. The prosecution failed to prove its case by any witness from the place where Nirmala Devi died and the informant only on the basis of suspicion filed the instant case after delay of three days without any plausible explanation. He has further submitted that the impugned judgment is not based upon any sufficient material because the prosecution has failed to bring even a single witness for the purpose to prove the case under Section 302 or 201 of the Indian Penal Code beyond doubt. He has further submitted that the trial court has totally ignored the defence version despite the fact that DW-3, who is doctor has deposed that he provided treatment to the deceased Nirmala Devi and he has supported that Nirmala Devi was suffering from Diarrhoea and vomitting while she was brought before him. The other defence witnesses also supported this fact in their evidence. He has next submitted that illicit relationship of appellant no. 1 with appellant no. 2 has not been proved by the prosecution. The reliance by the trial court on Exhibit-3 (alleged letter dated 10.05.1992 written by appellant no. 1 to the informant) which was not produced before the Investigating Officer without any reason and the contents of the same have not disclosed that the appellant no. 1 and 2 had in sexual relationship and they had any motive to eliminate the victim. The reliance by the trial court on Exhibit-3 (alleged letter dated 10.05.1992 written by appellant no. 1 to the informant) which was not produced before the Investigating Officer without any reason and the contents of the same have not disclosed that the appellant no. 1 and 2 had in sexual relationship and they had any motive to eliminate the victim. The learned Trial Court also failed to understand the motive of PW-2, who is another son-in-law of the informant who is behind to lodge the instant case for the purpose of grabing the property belonging to the informant because the informant has no any male issue. It is further submitted that PW-6 in paragraph 8 of his cross-examination has specifically said that villagers came forward and said that Nirmala Devi died because of Cholera. 16. In the light of aforesaid submissions, learned counsel for the appellants submitted that the prosecution has miserably failed to prove the guilt of the appellants under the given facts and circumstances of the case. 17. On the contrary, learned Additional Public Prosecutor for the State submitted that there is no material contradictions in the statement of the prosecution witnesses. Their statements are consistent and remained intact throughout the cross-examination and there is no reason to disbelieve the prosecution witnesses. The delay in filing F.I.R. has been reasonably explained by the prosecution and the defence failed to establish the circumstances in which the victim had died and also not explained reason to cremation of dead body in haste and unusual manner. He has prayed that there being no merit in the appeal filed by the accused appellants and the same may be dismissed. 18. We have carefully perused the records and proceedings and considered the submissions advanced by learned counsels for the parties. 19. The appellate court is empowered to reappreciate the entire evidence on record for the purpose of ascertaining as to whether the accused persons or any of them had committed any offence or not and if the impugned judgment and order is ultimately found to be clearly unreasonable and perverse, then such judgment and order can be set aside by the appellate court. 20. To examine the correctness of findings, we will first assess the testimony of prosecution witnesses. PW-1, Kapil Deo Raut, is resident of the village of accused persons. He stated that the wife of Dharam Mahato died in the hospital. 20. To examine the correctness of findings, we will first assess the testimony of prosecution witnesses. PW-1, Kapil Deo Raut, is resident of the village of accused persons. He stated that the wife of Dharam Mahato died in the hospital. This witness was declared hostile and he was cross-examined by the prosecution. 21. PW-2, Sheojee Prasad, is another son-in-law of the informant who has stated that when he was present at his house in his village, his father-in-law, Ram Prasad Mahato (informant) came there and gave information of the death of victim Nirmala Devi. Then, he came at the house of the accused persons along with informant and some other persons of the village. The accused persons were not present at that time at their house. He further stated that the accused persons used to torture Nirmala Devi because Dharam Mahato, husband of the informant, had illicit connection with the wife of his elder brother and she used to protest to the aforesaid conduct of her husband and due to that reason the accused persons committed murder of Nirmala Devi and they disposed of her dead body. He further stated that the deceased Nirmala Devi used to tell him about the illicit connection of her husband with the wife of her husband’s elder brother. 22. PW- 3, Khobhari Mahato, in his deposition stated that Nirmala Devi wanted to live at the house of her husband but her husband had abandoned her and on account of intervention, husband of Nirmala Devi took her from the house of the informant at this house. In this regard, there had been a Panchayati in village Shekhauna in which accused Dharam Mahato agreed to keep Nirmala Devi at his house and he took her. He further stated that Nirmala Devi told him that her husband was having illicit relation with the wife of his elder brother and Nirmala Devi used to object it but her husband used to assault her for the same. 23. PW-4, Ram Swarup Ram, in his deposition stated that there was differences between Nirmala Devi and her husband Dharam Mahato and to patch up the differences between them, a Panchayati was held in village Shekhauna where he was present. He further stated that accused Dharam Mahato agreed to keep Nirmala Devi at his house and thereafter she was living at the house of her husband where she died. 24. He further stated that accused Dharam Mahato agreed to keep Nirmala Devi at his house and thereafter she was living at the house of her husband where she died. 24. PW- 5, Ram Prasad Mahato, is the informant of this case as well as father of the victim Nirmala Devi. He has stated that Nirmala Devi was married with accused Dharam Mahato ten years ago. After sometime his daughter came to know that her husband Dharam Mahato was having illicit relation with the wife of his elder brother Laxmi Mahato which was protested by her due to which her husband used to torture and assault her and due to differences between Nirmala Devi and her husband, Nirmala Devi came to his parental house and told the informant about the same. He further stated that a Panchayati was also held and the husband of Nirmala Devi had taken her to his house and after four months on 28.04.1994 an unknown person came at his house at about 2.30 to 3 P.M. and told him that his daughter died on 27.04.1994 in village Shekhauna and her dead body was cremated on 27.04.1994. Thereafter, on the next day he came at the house of accused persons along with his son-in-law Sheojee Prasad (PW-2) and Satyanarayan (not examined). He found that dead body of Nirmala Devi was burnt in open space near the orchard of the accused persons. Some branches of Shisham trees were also burnt there and said place was never used for burning of dead body. He enquired about the death of his daughter from the accused persons but they did not give any satisfactory reply. Then he came at police station and gave information of the said occurrence but the Police Officer did not pay any heed to the said information. Thereafter, he submitted a written report to the S.P., Bettiah and the said report was scribed by his son-in-law, Sheojee Mahato (PW-2) at his dictation. He further stated that when difference had developed between Nirmala Devi and the accused Dharam Mahato then appellant no. 1, Dharam Mahato had written a barren letter to him and sent it by post. He proved the said letter, which is marked as Ext.-3. 25. He further stated that when difference had developed between Nirmala Devi and the accused Dharam Mahato then appellant no. 1, Dharam Mahato had written a barren letter to him and sent it by post. He proved the said letter, which is marked as Ext.-3. 25. In cross-examination, the informant (PW-5) stated that there was good relation between Nirmala Devi and Dharam Mahato till five years of their marriage but later on relation between them became bad, although, Nirmala Devi had never written any letter to him expressing her suffering and difference with her husband. He further stated that his daughter had no issue. He admitted that he got no male issue and has two daughters out of them one is Nirmala Devi. He admitted that when Nirmala Devi was in her matrimonial house, both his son-in-law were visiting to his house. He also admitted that in Panchayati his son-in-law had not gone with him. He has admitted that victim had not stated about illicit relation of appellant no. 1 with appellant no. 2 to her brother-in-law (PW-2) or any other relative. He had not verified this fact whether it was correct or not. He had not remembered the name of person who informed him about the death of his daughter. He further stated that he gave information of death of his daughter to another son-in-law on 28.04.1994 and on 29.04.1994 his another son-inlaw came at his house and thereafter, he along with his son-inlaw came in village Shekhauna. He further stated that when he came at the house of accused persons in village Shekhauna nobody was present in the house but after sometime accused Suraj Mahato came there. He also stated that the letter (Ext. 3) was shown to the police officer but he did not take notice of the same. 26. PW-6, Baleshwar Mahato, is Investigating Officer of this case. He deposed that on 02.05.1994, he received a written report of informant Ram Prasad Mahto and registered the case. He visited the place of occurrence of the case and made its inspection. In course of investigation, he found that dead body of wife of accused was burnt in the field of the accused persons at the distance of about 500 yards from the house of the accused persons. He found that some small shisham trees were also partly burnt on account of burning of dead body there. In course of investigation, he found that dead body of wife of accused was burnt in the field of the accused persons at the distance of about 500 yards from the house of the accused persons. He found that some small shisham trees were also partly burnt on account of burning of dead body there. He stated that the informant did not show him any letter. 27. PW-6, in his cross-examination, has deposed that he had enquired about the occurrence from the local people like Kapil Deo Raut (PW-1) and Suresh Prasad (not examined) and Kapil Deo Raut had stated that Nirmala Devi died due to Diarrhoea and after her death villagers had cremated her dead body. Suresh Prasad had stated that Nirmala Devi died due to Diarrhoea. Amar Nath Raut had also stated that Nirmala Devi died due to Diarrhoea. He further deposed that Deputy Superintendent of Police in his supervision report had written that villagers had told him that the victim died due to Diarrhoea. He also admitted that informant had not given him any paper during the investigation. 28. He also admitted that he had not prepared the sketch map of place where dead body was burnt. No bone was found on the place of occurrence. He had not written boundary and Khata-Khesra of place of occurrence. He had not stated in the case diary the name of villagers who had stated about the place of occurrence. He had not made seizure list of part of burnt leaf of shisham tree. 29. He has admitted that Sheojee Prasad (PW-2) had not stated that Nirmala Devi had told him about his husband illicit relationship with his Bhabhi, appellant no. 2. 30. From the cross-examination of the prosecution witnesses, it appears that defence suggested that the daughter of informant Nirmala Devi died due to Diarrhoea and Cholera disease for which she was treated by doctor and after death of Nirmala Devi, the accused persons performed her last rites according to Hindu religion and customs. The accused Suraj Mahto had sent the information of death of Nirmala Devi to the informant just after death of Nirmala Devi and dead body of Nirmala Devi was cremated where dead body is being cremated. 31. Three witnesses have been examined on behalf of defence to substantiate their defence. 32. DW-1, Harendra Mahato, in his deposition stated that Nirmala Devi died due to illness. 31. Three witnesses have been examined on behalf of defence to substantiate their defence. 32. DW-1, Harendra Mahato, in his deposition stated that Nirmala Devi died due to illness. He further deposed that doctor had treated her, however she died. 33. DW-2, Amar Raut, also deposed the same that Nirmala Devi died due to Diarrhoea and she was treated by the doctor. He had also attended the last rite of the deceased. 34. DW-3 is Dr. Ashok Kumar Singh. He has stated that Nirmala Devi was suffering from Diarrhoea and vomitting. He prescribed medicine for her and issued prescription of medicine which is exhibited as Ext.-A. In his cross-examination, he has stated that he did not know the patient who died later on. 35. From analysis of the aforesaid evidence of witnesses it is clear that there were no eye-witness to the incident and the case is based on circumstantial evidence. The offence can be proved by circumstantial evidence also. It is settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided the prosecution is able to prove beyond reasonable doubt the complete chain of events and circumstances which definitely points towards the involvement and guilty of the suspect or accused as the case may be. 36. Three Judges Bench of Hon’ble Supreme Court in judgment dated 13.10.2022 in Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh reported in 2022 SCC Online SC 1396 observed that the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved. 37. It is well settled that the burden is always on the prosecution to prove its case beyond reasonable doubt on the basis of legally admissible evidences. The law does not permit the Courts to punish the accused on the basis of suspicion alone. It is also settled principle of criminal jurisprudence that greater the felony the stricter the degree of proof. 38. The law does not permit the Courts to punish the accused on the basis of suspicion alone. It is also settled principle of criminal jurisprudence that greater the felony the stricter the degree of proof. 38. On the basis of material on record it is required to be examined whether the prosecution has firmly established various circumstances which linked together to form a chain so complete that it leads to sole hypothesis of guilt of the accused beyond all reasonable doubts. 39. Suspicion on accused persons/ appellants in this case is based on circumstances firstly, that on death of victim on 27.04.1994, informant was not informed on that day and secondly that the dead body of victim was cremated on the same day in haste in the field of accused in the village which was unusual. The motive of accused in the crime was assigned by deposing that there was difference between appellant no. 1 and the victim due to illicit relationship of appellant no. 1 with appellant no. 2. 40. From analysis of the prosecution witness, it is clear that the informant (PW-5) had deposed that after marriage there was good relation between victim and appellant no. 1 and when differences arises it was resolved by Panchayati and bidai of victim took place and victim was residing in her matrimonial home and after four month she died. During that period, the informant had visited there but the victim had not made any complaint to him. The informant failed to disclose that who had informed him about death of the victim which creates doubt about the claim of the informant that he was not informed by appellants about the death of victim. 41. In the present case, the informant in his deposition admitted that the fact of illicit relation of appellant no. 1 with appellant no. 2 had not been disclosed by her to sonin- law or any other persons or relatives. Accordingly, on this point the deposition of PW-2 or PW-3 and PW-4 are not convincing. 42. The Investigating Officer (PW-6) has admitted that Kapil Deo Prasad (PW-1) had stated that he came to know that Nirmala Devi died due to Cholera and after her death villagers had cremated the dead body of the deceased. He also admitted that Surendra Prasad and Amar Nath Raut had stated that Nirmala Devi had died due to Diarrhoea and Cholera. The Investigating Officer (PW-6) has admitted that Kapil Deo Prasad (PW-1) had stated that he came to know that Nirmala Devi died due to Cholera and after her death villagers had cremated the dead body of the deceased. He also admitted that Surendra Prasad and Amar Nath Raut had stated that Nirmala Devi had died due to Diarrhoea and Cholera. He also admitted that Deputy Superintendent of Police in his supervision report also stated that villagers told that Nirmala Devi died due to Diarrhoea and Cholera. The prosecution witnesses failed to prove the material fact that deceased was killed. On the other hand, the defence witnesses have consistently deposed and proved that the deceased died due to Diarrhoea and Cholera. The trial Court failed to appreciate that the prosecution failed to prove motive of the offence and reliance of letter (Ext.-3) which was produced first time in trial cannot corroborate the motive when the crime has itself not proved. 43. It appears from the evidence on behalf of the defence that the victim was suffering from Cholera and was treated by the doctor (DW-3). There is no reason to disbelieve them. 44. The delay in lodging the F.I.R. corrodes the credibility of the prosecution story. The Hon’ble Supreme Court in catena of judgments held that delay in lodging the F.I.R. creates a doubt, if the said delay is not properly explained. Delay in lodging F.I.R. more often than not, results in embellishment and exaggeration, which is a creature of an after thought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt of its veracity. In the present case, after perusing the testimony of prosecution witnesses, this Court finds that delay in lodging F.I.R. has not been properly explained by the informant and the same creates doubt about the truthfulness of prosecution case. 45. Considering the entire material from the records and proceedings it is not possible to conclude that appellants/ convicted accused before this Court had committed the subject crime and none else. 46. 45. Considering the entire material from the records and proceedings it is not possible to conclude that appellants/ convicted accused before this Court had committed the subject crime and none else. 46. In the light of this discussion, the appellants/ convicted accused are certainly entitled for benefit of doubt as the prosecution has failed to establish their guilt by adducing clear, cogent, trustworthy and clinching evidence. In the result, this appeal deserves to be allowed and is allowed with the following orders:— I. The appeal is allowed. II. The impugned judgment and order dated 31.05.1996 passed in Sessions Trial No. 96 of 1995, by the learned Sessions Judge, West Champaran at Bettiah thereby convicting the appellants/ convicted accused and sentencing them, accordingly, is set aside. III. The appellants are acquitted of the charges levelled against them and held to be proved against them by the learned trial Court. Appellants who are on bail are discharged from their liability of their respective bail bonds. 47. The aforesaid appeal, accordingly, stands disposed of. 48. The records of this appeal be returned to the trial court forthwith. 49. Interlocutory Application, if any, in this appeal also stands disposed of accordingly. Arvind Srivastava, J.—I agree.