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2024 DIGILAW 594 (JHR)

Rajendra Rabidas v. State of Jharkhand

2024-06-19

ANANDA SEN, SUBHASH CHAND

body2024
JUDGMENT : Ananda Sen, J. Heard the Amicus Curiae, Ms. Soumya S. Pandey and learned counsel for the State, Mr. Bhola Nath Ojha, Spl. P.P. 2. The instant criminal appeal is directed against the judgment of conviction and order of sentence dated 26.05.2006 passed in Sessions Case No. 52 of 2005 by Additional Sessions Judge-I, Pakur by whereby the appellants have been convicted for the offence under Section 302/34 of the IPC and sentenced for rigorous imprisonment for life and a fine of Rs.5000/-. Appellant no.1 has already served the sentence and has been released on bail and appellant no. 3 is dead. 3. Amicus Curiae submits that there is no evidence to convict the appellants. She submits that prosecution has failed to prove the guilt of the appellants beyond all reasonable doubts. She submits that though the death of the deceased is homicidal and is in the matrimonial home yet there is no corroborative evidence of demand of any money by these appellants. Neither the informant who is brother of the deceased nor the father of the deceased has been examined by the prosecution. Prosecution has not brought any material to suggest the presence of these appellants at the place of occurrence i.e house at the relevant point of time or before. 4. Learned Special Public Prosecutor submits that witnesses have stated that in-laws were demanding money for construction of house and the death is admittedly homicidal and body was found in the house of these appellants which is sufficient to convict the appellants. It is his contention that there is application of Section 106 of the Evidence Act in this case also, which is sufficient to convict the appellants. 5. We have heard the learned counsel for the parties and we have gone through the records. The fardbeyan is Exhibit- 3 and the same is at the instance of Pappan Das (brother of the deceased). In the fardbeyan informant has stated that marriage of his elder sister namely Munni Devi was solemnized eight years ago with Rajendra Das according to Hindu customs. He stated that his father had given dowry according to his capacity. After the marriage, situation was normal for some years but later on the in-laws changed their behavior. The mother-in-law, father-in-law, husband and other in-laws of the family started demanding Rs. 1 lakh from the deceased Munni Devi for construction of a house. He stated that his father had given dowry according to his capacity. After the marriage, situation was normal for some years but later on the in-laws changed their behavior. The mother-in-law, father-in-law, husband and other in-laws of the family started demanding Rs. 1 lakh from the deceased Munni Devi for construction of a house. About 5 month back, the father of the informant had given Rs.10,000/-to the in-laws but their demand continued. They started assaulting the sister of the informant for non-payment of money. When the informant used to go to meet his sister, his sister use to tell that in-laws can kill her at any moment. The informant pacified the matter and told them that they are poor persons this cannot arrange money for them. The sister of the informant had also complained that the character of mother-in-law is not good. In the morning informant was informed that his sister has been murdered by slitting the throat. On receiving this information they came to Bari Aliganj and found the neck of his sister was cut and she was dead. It was also informed that a day prior to the occurrence there was some quarrel and assault by the in-laws on her sister. 6. On the aforesaid fardbeyan, Pakur (T) P.S. Case No.22 of 2005 dated 22.01.2005 under Section 498(A), 302, 304(B)/34 of the IPC was registered. The police after investigation filed Final Form No. 17 of 2005 dated 31.03.2005 under Section 498A/302/34 of the IPC and thereafter cognizance was taken and the case was committed to the court of Sessions. 7. As the appellants pleaded not guilty, charges under Section 498A & 302/34 of IPC were framed and thus were put on trial. 8. Seven witnesses have been examined in this case. P.W.-1 (Mohan Rai) happens to be a hearsay witness. He is the witness of the inquest. He had proved his signature on the inquest report which was marked as Ext.1 P.W.-2 (Bhola Hazra) He is the witness of the inquest. He had proved his signature on the inquest report marked as Ext1/1. P.W.-3 (Sarju Rabidas) is the cousin of deceased. He deposed that he was informed through police station on 22.01.2005 at 11.00 A.M that Munni Devi has been murdered then he came to police station and thereafter he went to hospital and saw the dead body whose neck was cut. P.W.-3 (Sarju Rabidas) is the cousin of deceased. He deposed that he was informed through police station on 22.01.2005 at 11.00 A.M that Munni Devi has been murdered then he came to police station and thereafter he went to hospital and saw the dead body whose neck was cut. He further deposed that marriage of deceased was performed with Rajendra Rabidas eight years back. After marriage when she used to go to her parental home, she told that Rajendra and his mother and others were demanding Rs.1 lakh for construction of the house. He further deposed that his uncle Budhan Rabidas gave Rs.10,000/- but in-laws of deceased threatened to kill her. In cross-examination he said that he reached at the police station at about 7-8 p.m. He further stated that Pappan Das (informant) also came there. He stated that deceased had never told to him about demand of money. P.W4(Sukhal Ravidas) he is uncle of the deceased. He deposed that he was informed through telephone on 22.01.2005 that Munni Devi has been murdered. He further deposed that he informed Budhan Rabidas and reached Pakur at 7.00 P.M. with Upendra and Sarju. He saw the dead body whose neck was cut. He further deposed that marriage of deceased was performed with Rajendra Rabidas and after marriage demand of money was made from the deceased, by in-laws for construction of the house. He further deposed that his brother Budhan Rabidas gave Rs.10,000/-. In cross-examination he stated that telephonic message was send by S.I of Pakur and Pappan had prior knowledge about the said occurrence and he has not informed Pappan about the occurrence. He further stated that he had no telephone connection at his house. P.W5 (Upendra Rabidas) he almost narrated on the same line as P.W.4. He deposed that he reached at Pakur at 7.00 A.M. He had stated that demand of Rs.1 lakh was made to the deceased by her-in-laws and payment of Rs.10,000/-was made by Budhan Rabidas. P.W6 (Dr. Bindu Bhushan) he is the Medical Officer who conducted post-mortem on the dead body of the deceased, and the report was marked as Ext.2. Post-mortem report suggest that rigormortis were present in all the four limbs and body except eyelid. P.W6 (Dr. Bindu Bhushan) he is the Medical Officer who conducted post-mortem on the dead body of the deceased, and the report was marked as Ext.2. Post-mortem report suggest that rigormortis were present in all the four limbs and body except eyelid. Anti-mortem injuries suggests that a sharp cut injury of 5” X3” X gullet depth in front of the neck with cutting of the oesophagus trachea and muscle of the neck and the great vessel of the neck. No other injury was found. Doctor found that cause of death due to hemorrhage and shock and cutting of trachea, esophagus and great vessels of neck. P.W.7 (Ashok Kumar). He is the Investigating Officer of the case. He has proved Fardebyan which was marked as Ext.3. He identified the formal FIR marked as Ext.4. He has proved the inquest report which was marked as Ext.5. In cross-examination he stated that he had not collected the blood stained earth and bed sheet from the place of occurrence. After conclusion of the evidence, the trial court found the appellant guilty thus convicted him under Section 302/34 of the IPC and sentenced him accordingly. 9. We have heard the parties and have gone through the entire records. 10. From the evidence led on behalf of the prosecution, we find that admittedly informant has not been examined as a witness. P.Ws 1 & 2 are inquest witnesses. They have not stated anything on the facts of the case rather they stated that a female dead body was recovered from the house whose throat was slitted. They have proved the signature on the inquest report. From the evidence of P.W.3 only one fact comes to light that the appellant no.1 and his mother was demanding one lakh rupees for construction of the house. He also stated that his uncle i.e. father of the deceased had given Rs.10,000/- but surprisingly father of the deceased has not been produced as a witness to support the aforesaid contention. It is father of the deceased who had given money as per the prosecution, then it is he who would have been the best witness in support of the aforesaid contention, but the prosecution for reasons best known has not produced him. Further the P.W.3 stated that the deceased was threatened by these appellants of dire consequence. It is father of the deceased who had given money as per the prosecution, then it is he who would have been the best witness in support of the aforesaid contention, but the prosecution for reasons best known has not produced him. Further the P.W.3 stated that the deceased was threatened by these appellants of dire consequence. He also stated that he reached the place of occurrence after coming to know about the incident. P.W.4 only stated about the marriage of the deceased with appellant no.1 and stated that he learnt that the money was demanded by in-laws for construction of house and the informant had narrated that telephonic message was received informing that the deceased has been murdered. P.W.5 also stated in similar manner which is apparent from the evidence. P.W.6 is the doctor who stated that the death is homicidal and he found the anti-mortem injuries. P.W7 is the I.O who stated that on receiving secret information he went to the place of occurrence to find the dead body and he narrated about the place of occurrence and gave detail description of the matrimonial home. He further stated that body was sent for post-mortem and the inquest report was prepared. This witness also stated nothing about the presence of these appellants nor stated from where they were arrested. 11. From the entire evidence, we also find that none of the witnesses have stated about the presence of any of the appellants at the place of occurrence nor any one of the witnesses had stated that they were seen immediately before the occurrence or anyone has stated that these appellants fled. No witness whispered about these appellants. The Trial Court solely convicted the appellants on the ground that they were in-laws and the witnesses have stated that they were demanding money for construction of the house and the dead body was found in the in-laws house. It may be pertained to mention here that this case is under Section 302 of the IPC and not under Section 304B of the IPC where the burden to proof shifts on the accused. Since the case is under Section 302 of the IPC it is the prosecution who has proved the guilt of the appellants beyond all reasonable doubt. It may be pertained to mention here that this case is under Section 302 of the IPC and not under Section 304B of the IPC where the burden to proof shifts on the accused. Since the case is under Section 302 of the IPC it is the prosecution who has proved the guilt of the appellants beyond all reasonable doubt. In this case, from the evidence we find that the prosecution has not been able to prove the guilt of these appellants beyond all reasonable doubt. Since the place of murder is the matrimonial home of the deceased, it cannot be a ground to come to a conclusion that these appellants have committed the murder when there is no evidence about the presence of these appellants at the place of occurrence soon before the incident or at the time of incident. In fact the defence witness has stated that appellants were not present at the place of occurrence. 12. Section 106 of the evidence Act reads as follows:- “106. Burden of proving fact especially within knowledge-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustriations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of providing that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket, is on him.” 13. The Hon’ble Supreme Court in the case of Sabitri Samantaray Vrs. State of Odisha reported in (2022) SCC Online SC 673 held that Section 106 of the Indian Evidence Act applies to cases where the chain of evidence has been successfully established by the prosecution. Paragraphs 18 & 19 of the said judgment reads as under: “18 Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, it merely prescribes that when an individual has done an act, with an intention other than that which the circumstances indicate, the onus of proving that specific intention falls onto the individual and not on the prosecution. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, it merely prescribes that when an individual has done an act, with an intention other than that which the circumstances indicate, the onus of proving that specific intention falls onto the individual and not on the prosecution. If the accused had a different intention than the facts are especially within his knowledge which he must prove. 19. Thus although Section 106 is in no way aimed at relieving the prosecution from its burden to establish the guilt of an accused, it applies to cases where chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused. Moreover, in a case based on circumstantial evidence, whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, then such a response in itself becomes an additional link in the chain of events [See Trimukh, Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681 ]” 14. The Hon’ble Supreme Court in the case of Rajinder Singh Vrs. State of Haryana reported in (2013) 15 SCC 245 held that Section 106 of the Evidence Act does not relieve the burden of the prosecution to prove guilt of the accused beyond reasonable doubt. Paragraph 18 of the said judgment reads as under. “18. Section 106 of the Evidence Act does not relieve the burden of the prosecution to prove guilt of the accused beyond reasonable doubt but where the prosecution has succeeded to prove the facts from which a reasonable inference can be drawn regarding the existence of certain other facts and the accused by virtue of special knowledge regarding such facts fail to offer any explanation then the court can draw a different inference.” 15. In this case we find that prosecution has not been able to prove the guilt of the appellants beyond all reasonable doubt, thus section 106 of the Evidence Act also cannot come in aid of the prosecution. The prosecution should have at least proved the presence of the appellant and the in-laws at the place of occurrence soon before the incidence or at the time of incident. The prosecution should have at least proved the presence of the appellant and the in-laws at the place of occurrence soon before the incidence or at the time of incident. Further paying of the amount of Rs.10,000/- by the father of the deceased to the in-laws have also not been proved. Non-examination of the informant and father of the deceased is fatal for the prosecution. Thus, giving benefit of doubt, we are inclined to acquit the appellants. Accordingly this criminal appeal is allowed. The judgment of conviction and order of sentence dated 26.05.2006 passed in Sessions Case No. 52 of 2005 by Additional Sessions Judge-I, Pakur whereby the appellants have been convicted for the offence under Section 302/34 of the IPC and sentenced for rigorous imprisonment for life and a fine of Rs.5000/- is set aside. 16. I.A. No. 2953 of 2020 stands disposed of. 17. Ms. Soumya S. Pandey who was appointed as Amicus Curiae has very well assisted this Court. This Court appreciates the effort of the Amicus Curiae. Jharkhand State Legal Service Authority is directed to pay admissible remuneration to the Amicus Curiae of this case. 18. Let L.C.R. along with a copy of this judgment be sent to the concerned trial court forthwith.