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2023 DIGILAW 31 (JHR)

Pramila Devi v. State of Jharkhand

2023-01-05

AMBUJ NATH, RONGON MUKHOPADHYAY

body2023
JUDGMENT : Heard Mr. Vijay Kumar Roy, learned counsel for the appellant and Mr. Pankaj Kumar, learned P.P. for the State. 2. This appeal is directed against the judgment of conviction dated 04.09.2017 and order of sentence dated 07.09.2017 passed by Sri Arvind Kumar Pandey, learned District & Additional Sessions Judge IV, Civil Courts, Giridih in S. T. No. 35 of 2013 whereby and whereunder the appellant has been convicted for the offence punishable under Section 302 of Indian Penal Code and has been sentenced to undergo imprisonment for life along with a fine of Rs. 2,000/- and in default of payment of fine to undergo simple imprisonment for three months. 3. A written report was submitted by Raju Yadav to Officer Incharge, Birni Police Station wherein it has been stated that on 31.07.2012 at about 2:00 P.M., he was working in his agricultural field when he heard some commotion and the villagers had informed him that someone had committed the murder of his child Sonu Yadav. On hearing this, he rushed to his house and found his son dead. It has been alleged that earlier threats were given by Suleman Mian, Lekho Baitha, Islam Mian and Pramila Devi that within one week his son will be eliminated and he was of the belief that these persons had committed the murder of his son. 4. Based on the aforesaid allegations, Birni P. S. Case No. 107 of 2012 was instituted under Sections 302/201/34 of Indian Penal Code against four accused persons. On completion of investigation, charge-sheet was submitted against Pramila Devi (Appellant) while investigation continued against the others. After cognizance was taken, the case was committed to the court of Sessions, where it was registered as S. T. No. 35 of 2013. Charge was framed against the accused for the offences punishable under Sections 302/34 and 201 I.P.C. which was read over and explained to her in Hindi to which she pleaded not guilty and claimed to be tried. 5. The prosecution has examined as many as 11 witnesses in support of its case. P.W. 1 – Churia Devi has deposed that the incident is of 7 months back in between 1-1:30 P.M., when she was in her house and her son Sonu Yadav had come from the school and had his food, after which he went towards the house of Pramila Devi to answer the call of nature. P.W. 1 – Churia Devi has deposed that the incident is of 7 months back in between 1-1:30 P.M., when she was in her house and her son Sonu Yadav had come from the school and had his food, after which he went towards the house of Pramila Devi to answer the call of nature. When the tutor of his son had come, she started searching for him and went towards the house of Habib Mian. She saw Pramila Devi taking away her son in her lap and when Pramila Devi was confronted, she threw her son and fled away. She found her son dead and there was injury on his neck suggestive of it having been pressed. When she raised alarm, the villagers and her husband had arrived. The police thereafter had come and sent the body of the child for autopsy. She has stated that the reason for the occurrence was that Pramila Devi wanted to purchase the land which was adjoining to her house. Before this incident, her another son Jitendra was pushed by Pramila from the roof which resulted in his death. In cross-examination, she has deposed that she had narrated the entire incident to her husband. The land dispute between them is going on for the last 10-15 years. She has further deposed that the police has not recorded her statement. The land which Pramila Devi wanted to purchase was in the name of the parent-in-law of this witness. She had not instituted any case when her son Jitendra had died. She also had land dispute with Suleman Mian, Lekho Baitha and Islam Mian. She had gone out alone in search of her son Sonu Yadav and at that point of time, her parents-in-law and husband were inside the house. P.W. 2 – Mainwa Devi has deposed that on the date of occurrence, she was in the house when her daughter-in-law has disclosed that Sonu had gone to answer the call of nature, but he had not returned. When she went towards the house of Pramila Devi for search of her grand-son, she saw Pramila Devi going towards the backside of the house at which she called her daughter-in-law Churia Devi. When Pramila Devi saw her, she threw the child who was found to be dead. She and her daughter-in-law started crying at which Girija Devi and the villagers had also come. When Pramila Devi saw her, she threw the child who was found to be dead. She and her daughter-in-law started crying at which Girija Devi and the villagers had also come. In cross-examination, she has deposed that police has recorded her statement after three days. She had disclosed the entire incident to her son Raju Yadav. There was a land dispute with the husband of Pramila Devi which was going on for the last 3-4 years and twice Panchayati was held. She has stated that the distance between her house and the house of Pramila Devi is about 20 feet and in between there was an open land. There was a separate land dispute with Suleman Mian, Islam Mian and Lekho Baitha. P.W. 3 – Gopal Mahto has stated that on the date of occurrence, he was in his house and on hearing some commotion, he went near the house of Lekho Baitha, where he found Sonu Yadav dead. The wife of Madho disclosed that the child was murdered by the wife of Hirwa. He had seen the wife of Hirwa fleeing away. About four years back, the wife of Hirwa had thrown the child in the well. He has stated that the child was murdered due to land dispute. In cross-examination, he has deposed that the place of occurrence is about 50 feet from his house. The house of Habib Mian is nearest to the place of occurrence. P.W. 4 – Narayan Yadav has stated that on 31.07.2012 in between 2-2:30 P.M., he was working in his field when he heard some commotion in the field and when he came, he saw that the son of Raju Yadav has been murdered. Pramila Devi was caught as she was trying to flee away. A search was conducted in the house of Pramila Devi and a bamboo stick was recovered which was seized. He has signed on the seizure list, which was marked as Exhibit 1. In cross-examination, he has deposed that the police had not recorded his statement. There was a previous land dispute between the family of Raju Yadav and Pramila Devi. Raju Yadav had a dispute with some members of muslim community regarding the land meant for cremation. He has signed on the seizure list, which was marked as Exhibit 1. In cross-examination, he has deposed that the police had not recorded his statement. There was a previous land dispute between the family of Raju Yadav and Pramila Devi. Raju Yadav had a dispute with some members of muslim community regarding the land meant for cremation. P.W. 5 – Ujo Mahto has deposed that when the tutor had come, he went in search for his grand-son and saw that Pramila Devi after murdering Sonu was throwing his dead body in the field of Lekho Baitha. He was brought home, but he was already dead by then. On the date of occurrence, a meeting was held between Lekho Baitha, Suleman Mian and Pramila Devi at 8:00 A.M. wherein it was decided to eliminate either the son or the grand-son of this witness. There was a land dispute between both the parties. He has stated that the police was informed and a bamboo stick was recovered from the house of Pramila Devi. In cross-examination, he has deposed that he had disclosed the entire incident to Raju Yadav. He was alone in his house and on alarm, he had gone to search for his grand-son. The statement of the tutor was recorded by the police. P.W. 6 – Girija Devi has stated that on the date of occurrence, she was planting saplings when she had seen Pramila Devi going towards the back of her house with a child in her lap. The grand-mother of the child come weeping and went to the place where the child was kept. She also went and found the child dead. In cross-examination, she has deposed that she was going to work in the field and there was no one present and the grand-mother of the child had come after 5-7 minutes after she had seen Pramila Devi going away with the child. When she had seen Pramila Devi, she had not raised any alarm. P.W. 7 – Baidyanath Yadav has deposed that on the date of occurrence, he was at Saranda More and on hearing some commotion, he had gone near the house of Raju Yadav, where a crowd had gathered and he had seen the dead body of the son of Raju Yadav. P.W. 7 – Baidyanath Yadav has deposed that on the date of occurrence, he was at Saranda More and on hearing some commotion, he had gone near the house of Raju Yadav, where a crowd had gathered and he had seen the dead body of the son of Raju Yadav. He has proved his signature on the seizure list with respect to seizure of a bamboo stick from the house of Pramila Devi which has been marked as Exhibit 1/1. After Pramila Devi was arrested, she had confessed her guilt before him. In cross-examination, he has stated that the crowd was taking the name of Pramila of committing the murder. Raju Yadav had disclosed that the murder was committed by Pramila Devi but he has not stated that he had witnessed the occurrence. P.W. 8 – Dr. Sunil Kumar Singh was posted at Sadar Hospital, Giridih and on 01.08.2012, he had conducted autopsy on the dead body of Sonu Kumar Yadav and had found the following injuries: “Ante-Mortem Injuries : (i) Blood stained liquid was found coming out from mouth and nose. (ii) Nail scratch abrasions – ¼” x ¼” semilunar 4 in number found over front of neck over and below thyroid cartilage. (iii) Nail scratch abrasion ¼” x ¼” semilunar 4 in shape – one in number with bruise ½” x ½” found over right side neck. (iv) Abrasion ¼” x ¼” over right side forehead. (v) Bruise 2” x 2” front of the neck. (vi) Abrasion 1” x ½” over right forearm. On-dissection: (i) Neck – hematoma found in neck with soft tissues (muscle) lacerated. Hyoid bone was fractured. Mucosa of trachea and hyoid bone were reddish colour. (ii) Viscera – congested, heart – empty, stomach – undigested food rice, bladder – empty. (iii) Time since death – within 24 hours.” The cause of death was opined to be asphyxia due to throttling. He has proved the post mortem report which has been marked as Exhibit 2. P.W. 9 – Raju Yadav is the informant and father of the deceased who has stated that it was between 1:30 to 2:00 P.M. on 31.07.2012 and he was working in his field when some villagers came running and told him that his son has been murdered. He rushed to the place of occurrence and saw his son dead. His wife was wailing at the said place. He rushed to the place of occurrence and saw his son dead. His wife was wailing at the said place. The police was informed who came and sent the body for post mortem. The police had recovered a bamboo stick from the house of Pramila Devi. Before the incident Suleman Mian, Islam Mian and Lekho Baitha and Pramila Devi had threatened to eliminate his son. Prior to this incident, his another son namely, Jitendra Kumar was done to death by Lekho Baitha and Pramila Devi by pushing him from the roof. When the deceased Sonu was 5-6 years old, Pramila Devi had thrown him in the well, but the villagers had managed to rescue him. He has proved his signature in the written report which has been marked as Exhibit 1/2. In cross-examination, he has deposed that the distance between his house and the field where he was working is 250 meters. When he reached the place of occurrence, his wife and mother were already present there. In the earlier incidents involving his sons, he had not instituted any case. There is a land dispute in existence between him and Pramila Devi for the last 10 years. He also has a land dispute with Suleman Mian and Islam Mian. P.W. 10 – Ramashish Singh was handed over the investigation of Birni P. S. Case No. 107 of 2012. He has proved his hand-writing and signature in the endorsement which has been marked as Exhibit 1/3. After taking over investigation, he had recorded the re-statement of the informant and the statement of Churia Devi, Ujo Mahto, Mainwa Devi, Gopal Mahto, Baidyanath Yadav and Devanti Devi who all have supported the allegations. He had inspected the place of occurrence which is at village Baradih at the back side of the house of Pramila Devi and Lekho Baitha. After Pramila was arrested, her confessional statement was recorded. He has also seized a bamboo stick and seizure list was proved and marked as exhibit 3. On completion of investigation, charge-sheet was submitted against Pramila Devi. He has proved the inquest report which has been marked as Exhibit 4 and the FIR which has been marked as Exhibit 5. In cross-examination, he has deposed that the informant is not the eye-witness to the occurrence. He had not taken steps to record the statement under Section 164 Cr.P.C. of the witnesses. He has proved the inquest report which has been marked as Exhibit 4 and the FIR which has been marked as Exhibit 5. In cross-examination, he has deposed that the informant is not the eye-witness to the occurrence. He had not taken steps to record the statement under Section 164 Cr.P.C. of the witnesses. He has further stated that none of the witnesses had disclosed about seeing the occurrence. P.W. 11 – Sambhu Kumar has produced the material exhibit which is a bamboo stick and which has been marked as material exhibit no. 1. 6. The statement of the accused was recorded under Section 313 Cr.P.C. in which she has denied to have committed the offence. 7. Mr. Vijay Kumar Roy, learned counsel for the appellant has submitted that there are no eye-witnesses to the occurrence and the appellant has been implicated on the basis of suspicion. There are vital contradictions in the evidence of the witnesses. It has further been submitted that in absence of FSL report, the bamboo stick purportedly recovered from the house of the appellant cannot be attributed to be the murder weapon. 8. Mr. Pankaj Kumar, learned P.P. for the State has submitted that there are strong circumstantial evidence to indicate about the active participation of the appellant in committing the murder of Sonu Yadav. He has referred to the evidence of P.W. Nos. 1, 2 & 5 while submitting that these witnesses have categorically stated that the appellant was seen with the child in her lap and she had thrown the child and had gone away. The appellant was also involved in the death of another child of the informant as has been deposed by the witnesses. 9. We have considered the rival submissions and have also perused the lower court records. 10. In the FIR, the informant had cast aspersions upon the appellant as well as Suleman Mian, Islam Mian and Lekho Baitha as the persons who have committed the murder of his son Sonu Yadav. The reason for implication is a purported threat meted out by the accused persons of doing away with the life of the child. The FIR therefore indicates that the informant was unaware about the actual incident. 11. The evidence of P.W. 1, P.W. 2 and P.W. 5 runs contrary to the disclosure made in the written report. The reason for implication is a purported threat meted out by the accused persons of doing away with the life of the child. The FIR therefore indicates that the informant was unaware about the actual incident. 11. The evidence of P.W. 1, P.W. 2 and P.W. 5 runs contrary to the disclosure made in the written report. P.W. 1 is the wife while P.W. 2 is the mother of the informant (P.W. 9) and P.W. 5 is the father of the informant. Both have deposed that on seeing them, the appellant had thrown away the child which was found to be dead. Their witnessing this part of the incident had been disclosed by them to P.W. 9, but no such fact finds mention in the written report of P.W. 9. It is well settled that the FIR is not an encyclopaedia specifying even the minutest of details, but at the same time, it should not be shorn of a fact which is of great importance and which was in the knowledge of the informant. This demonstrates that there are improvements in the version of the witnesses during trial and this would further be fortified when we consider the evidence of the witnesses in totality. 12. Admittedly, there are no eye-witnesses to the assault and throttling of the deceased Sonu Yadav. P.W. 1, P.W. 2 and P.W. 5 are the witnesses to the act of the appellant in throwing away the deceased apart from P.W. 6, who is an independent witness. However, the evidence of these witnesses indicate that they had seen the incident in isolation and not in an integrated way. P.W. 1 in her evidence claims to have seen the appellant taking away her son in her lap and on seeing her had dropped her son and fled away. In cross-examination, she has stated that she had gone alone in search of her son. P.W. 5 in his cross-examination has stated that he was alone in the house. In chief this witness has disclosed that his grand-son was murdered by the appellant and his body was thrown in the field of Lekho Baitha. In cross-examination, she has stated that she had gone alone in search of her son. P.W. 5 in his cross-examination has stated that he was alone in the house. In chief this witness has disclosed that his grand-son was murdered by the appellant and his body was thrown in the field of Lekho Baitha. P.W. 2 who is the mother of the informant on the other hand has stated that when she had gone out in search of her grand-son, she had seen the appellant with the child in her lap and when P.W. 1 had called her, the appellant had thrown away the child and went away. 13. Thus, the evidence of P.W. 1, P.W. 2 and P.W. 5 contradicts each other as P.W. 1 and P.W. 5 have not disclosed the presence of each other when the appellant was taking away the child and the presence of P.W. 2 is also conspicuous and though P.W. 2 has stated about the appearance of P.W. 1 at the place of occurrence, but the same also does not find support from the evidence of P.W. 1. We at this juncture may also refer to the evidence of P.W. 6 who has stated to have seen the appellant taking away the child to the backside of her house and keeping it in the field of Lekho Baitha. The grand-mother (P.W. 2) of the child came running and wailing and went to the place where the dead body was kept and she also followed. P.W. 6 has also not stated about the presence of P.W. 1 or P.W. 5 when the incident had occurred. P.W. 6 appears to be an independent witness, but her evidence is not corroborated by the evidence of P.W. 1, P.W. 2 and P.W. 5 and in view of the material contradictions emanating from her evidence, the testimony of P.W. 6 cannot be relied upon. It also appears from the evidence of P.W. 2 that P.W. 6 had come after P.W. 2 and P.W. 1 had discovered the dead body and started crying which again rules out the possibility of P.W. 6 being an eye-witness to the occurrence. Apart from this major contradiction, the other important aspect is the evidence of I.O. (P.W. 10) who in his cross-examination has deposed that none of the witnesses have disclosed about seeing the incident. Apart from this major contradiction, the other important aspect is the evidence of I.O. (P.W. 10) who in his cross-examination has deposed that none of the witnesses have disclosed about seeing the incident. What would thus fall from the above is that the witnesses have subsequently developed their case during trial as would appear from the major contradictions and inconsistencies emanating from their testimonies. 14. So far as the motive is concerned, P.W. 1, P.W. 2, P.W. 5 and P.W. 10 have stated about a long standing land dispute. Mention has also been made about the other son of the informant namely, Jitendra Kumar who was pushed from the roof resulting in his death and Sonu Yadav being thrown in the well by the informant, but rescued by the villagers, but admittedly no case was instituted either against the appellant or against the other FIR named accused persons. The dispute was tried to be settled by holding panchayatis. The revelations made by the villagers indicate enmity between both the sides and the same can be a basis for false implication particularly when we consider the surrounding circumstances leading to the appellant being prosecuted as the perpetrator of the murder. It is indeed surprising as to why the informant kept silent in spite of such drastic and vile acts committed by the appellant as alleged and the evidence of the prosecution appears to be designed to frame the appellant in committing the murder of Sonu Yadav. 15. The learned trial court had overtly relied upon the evidences of P.W. 1, P.W. 2, P.W. 5 and P.W. 6 while implicating the appellant of having been last seen with the deceased without scrutinising such evidence threadbare. The onus to explain the circumstances leading to the death of Sonu Yadav would have shifted to the appellant in terms of Section 106 of Evidence Act, if the prosecution had been able to explain the chain of events as has been held by the learned trial court, but when the evidence itself is unreliable and untrustworthy leading to a crevice in the prosecution case, the question of shifting of burden upon the appellant does not arise. 16. 16. Therefore, on the basis of discussions made hereinabove, we came to the conclusion that the prosecution has miserably failed to prove its case beyond all reasonable doubts and consequently the judgment of conviction 04.09.2017 and order of sentence dated 07.09.2017 passed by Sri Arvind Kumar Pandey, learned District & Additional Sessions Judge IV, Civil Courts, Giridih in S. T. No. 35 of 2013 is hereby set aside. 17. This appeal is allowed. 18. Since the appellant is in custody, she is directed to be released forthwith, if not wanted in any other case.