0IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.974 of 2012
Arising Out of PS.Case No. -106 Year- 2010 Thana -Ariari District- Sheikhpura
Bharat Sao, S/o Kameshwar Sao, Resident of Village- Bhojdih, P.S- Ariari,
District- Shaikhpura.
…. …. Appellant
Versus
The State of Bihar
…. …. Respondent
Appearance:
For the Appellant : Mr. Syed Rizwannul Haque, Advocate.
Mrs. Proniti Singh, Amicus Curiae.
For the Respondent : Mr. A. K. Sinha, APP.
CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN
And
HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL)
Date: 06-04-2018
Heard learned counsel for the appellant, Mrs. Proniti
Singh, learned Amicus Curiae and learned APP for the State on this
criminal appeal.
2. This criminal appeal has been preferred against the
Judgment and Order of conviction dated 25.06.2012 and order of
sentence dated 26.06.2012 passed by Adhoc Additional District and
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Sessions Judge-II, Sheikhpura in Sessions Trial No. 722 of 2011
arising out of Ariari P.S. Case No. 106 of 2010, whereby the learned
trial court convicted the appellant for the offence punishable under
Section 302 of the Indian Penal Code and sentenced him to undergo
Rigorous Imprisonment (R.I.) for life and slapped him with fine of Rs.
5000/- and in default of payment of fine, to further undergo Rigorous
Imprisonment for one year in addition to the substantive sentence of
imprisonment .
3. Factual matrix of the case is that Ariari P.S. Case
No. 106 of 2010 was instituted under Section 302/34 of the Indian
Penal Code against Bharat Sao and Kameshwar Sao on the basis of
the fardbeyan of Mita Devi, wife of Indradeo Sao recorded by S.I.
Ashok Kumar Yadav S.H.O. P.S. Ariari on 09.07.2010 at 07:30 AM
at village Bhojdih with the allegation in succinct that the informant
had performed marriage of her daughter Jai Pati Devi with Bharat
Sao of village Bhojdih about ten years back. She was blessed with
two daughters and one son out of the aforesaid wedlock. Her son-in-
law was unemployed poor person. He used to vend tikuli and sindur
as hawker and hardly could meet the need of his family. Her daughter
persistently insisted him to earn more money by doing some other
work whereupon he used to sulk and thrash her. On making
complaint to her by her daughter about the same, she used to pay
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visit to marital house of her daughter and persuade her daughter and
son-in-law, but there was no change in the nature of her son-in-law
and he continued to thrash her off and on. Further allegation is that
on 09.07.2010 in the morning, she got information about murder of
her daughter. Responding the same, she rushed to the marital house
of her daughter along with her family members and found the dead
body of her daughter in the courtyard of her house. Her face was
smeared with the blood. On making enquiry, she learnt that her son-
in-law Bharat Sao and his father Kameshwar Sao have eliminated her
daughter by assaulting her by means of brick in the night. Both were
found absconding from the house.
4. Aforesaid case was investigated by the police and on
conclusion of the investigation, I.O. submitted chargesheet under
Sections 498A and 302 of the Indian Penal Code against the
aforesaid accused Bharat Sao showing the accused Kameshwar Sao
as not sent up.
5. On receiving the chargesheet and the case diary and
perusing the same, the learned Magistrate took cognizance of the
offence against the accused and committed the case to the court of
sessions and on transfer finally the case came in the seisin of Adhoc
Additional District and Sessions Judge-II, Sheikhpura for trial.
6. Charge against the accused was framed under
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Sections 498A and 302 of the Indian Penal Code. Charges weres read
over and explained to him to which he pleaded not guilty and
claimed to be tried.
7. To substantiate its case, in ocular evidence, the
prosecution has examined altogether nine prosecution witnesses
namely, Virendra Prasad as PW-1, Dhirendra Kumar as PW-2, Anil
Kumar as PW-3, informant Meeta Devi as PW-4, Radha Kumari as
PW-5, Maksudan Sao as PW-6, Ashok Kumar Yadav as PW-7, Dr.
Sudhir Kumar who conducted the autopsy of the cadaver of the
deceased as PW-8 and Dr. Md. Faizuddin, one of the member of the
Medical Board conducting the autopsy of the cadaver of the deceased
as PW-9. The prosecution has also filed and proved some documents
in the case by way of documentary evidence.
8. Statement of the accused was recorded under Section
313 of the Code of Criminal procedure. The case of the defence is
complete denial of the occurrence claiming complete ignorance about
the manner of death of the deceased. The accused has neither
adduced any ocular nor documentary evidence in buttress of his case.
9. After hearing the parties and perusing the record, the
learned trial court passed the aforesaid Judgment and Order of
conviction and sentence as detailed in the earlier paragraph.
10. Being aggrieved and dissatisfied with the aforesaid
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Judgment and Order of conviction and sentence, the convict has
preferred the present Criminal Appeal.
11. The point for consideration in this case is, as to
whether the prosecution has been able to bring home the charge
levelled against the appellant beyond all reasonable doubts or not.
12. It is submitted by learned counsel for the appellant
and learned Amicus Curiae that there is no eye witness of the
occurrence barring PW-5 Radha Kumari who happens to be daughter
of the deceased, but the said witness was admittedly aged about three
years at the time of occurrence and she happens to be child witness.
She does not appear to be competent witness as on quizzing by the
Court to test her competency to depose in the case, she had replied
that she had come to the Jail and vented her ignorance about reason
for her visit in response to the question put by the Court about reason
of visiting the Court. She was not subjected to more questions to test
her competency to give evidence in the court barring about number
of brothers and sisters she is having and as to whether speaking truth
or lie is good which was responded by her correctly. The aforesaid
testimony of the said child witness also does not stand corroborated
by any other eye witness of the case. Hence, the testimony of the
aforesaid uncorroborated incompetent child witness is not worth
credence and reliable. It is further submitted that the said witness in
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her cross-examination has also candidly stated that at the time of
occurrence, she was sleeping and when she woke up she found her
mother died and father absconding. Thus, she does not happen to be
eye witness of the occurrence. It is also submitted that as per the
fardbeyan, the informant has learnt the occurrence of committing
murder of her daughter by her son-in-law (appellant) and his father
by means of brick, but she has not disclosed the name and identity
etc. of the source of information. Though in her statement, the
informant has stated that she had got knowledge of the aforesaid
occurrence from her grand-daughter (PW-5) at the marital house of
her daughter, but in the fardbeyan, she had not divulged the factum
of learning of the occurrence through her grand-daughter though the
fardbeyan was given subsequent to meeting with her grand-daughter
at the place of occurrence which creates serious doubt about the
prosecution case and also creates doubt about credibility of PW-5 as
had she learnt about the complicity of the appellant in the occurrence
through her grand-daughter, she would have stated so in her
fardbeyan, but not done so which also indicates that PW-5 actually
had not witnessed the occurrence rather is a tutored witness. It is
further submitted that as per the prosecution case, the appellant used
to thrash her daughter as he used to earn paltry amount by vending
tikuli and sindur as hawker and did not make effort to earn more
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money by doing some other work despite persistent insistence of her
daughter, but none of the witnesses examined by the prosecution has
corroborated the aforesaid case of the prosecution. Moreover, in quite
contradiction to the aforesaid case of the prosecution taken in the
fardbeyan, the informant has stated the cause of death as her failure
to cough up the demand of Rs. 10,000/- of the appellant. The said
case of the prosecution also does not stand corroborated by any other
witness of the case. It is further submitted that as per the prosecution
case, the appellant assaulted the deceased by means of brick, but in
quite contradiction to the aforesaid prosecution case, PW-5 has stated
that the appellant assaulted the deceased by means of brick, lodha
and khanti and the informant has stated in her examination-in-chief
about assaulting the deceased by the appellant by means of lodha
(stone meant for grinding spices). Moreover, the aforesaid case of the
prosecution also does not stand corroborated by the medical evidence
as the doctor has opined the anti-mortem injury inflicted to the
deceased caused by sharp cutting weapon. Thus, the prosecution has
utterly and miserably failed to substantiate the prosecution case and
bring home the charges levelled against the appellant beyond all
reasonable doubts by adducing reliable, trustworthy and worth
credence ocular and documentary evidence. Hence, the appellant is
entitled to be acquitted.
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13. On the other hand, learned APP advocating the
correctness and validity of the impugned Judgment and Order of
conviction and sentence submitted that PW-5 who happens to be
daughter of the deceased, had witnessed the occurrence and she has
fully supported the prosecution case. Other witnesses and medical
evidence have also corroborated the prosecution case and the learned
trial court correctly appreciating the facts and evidence available on
record has rightly passed the aforesaid Judgment and Order of
conviction and sentence which is liable to be upheld and this appeal
has no substance in it and is liable to be dismissed.
14. To substantiate its case, prosecution has examined
six material witnesses of the case i.e. PW-1, PW-2, PW-3, PW-4,
PW-5 and PW-6. Out of the aforesaid witnesses, PW-1 and PW-3
turned hostile while PW-2 and PW-6 happen to be hearsay witnesses
of the case as PW-2 Dhirendra Kumar has vented his ignorance about
the assailant of the wife of Bharat Sao in his examination-in-chief
itself. In Para-3 of his cross-examination, he has stated that he got the
information of death on the following morning. He neither witnessed
the occurrence nor anyone divulged him about the same. He has even
denied about listening of any feud between the couple earlier. PW-6
Maksudan Sao who happens to be uncle of the deceased has stated in
his examination-in-chief that on receiving the phone call, they
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arrived at the marital house of the deceased and found blood
drenched dead body of Jai Pati Devi there. The locals divulged him
that Bharat Sao had eliminated her. He did not learn about cause of
her murder. He also did not grill her children about her assailant. He
did not disclose the name and identity of the source of information of
the occurrence and none has come forward in corroboration of the
divulgence of the occurrence to him. Thus, the aforesaid
uncorroborated evidence of the said hearsay witness is not admissible
in evidence. In Para-6 of his cross-examination, he has even denied
the demand of any money by the appellant Bharat Sao from his niece
before him. He has stated that his sister-in-law (informant) had
divulged him about the demand of money by the appellant Bharat
Sao, but the informant has not corroborated the factum of divulgence
of the aforesaid case by her to him. Hence, the aforesaid statement of
the said hearsay witness also does not appear to be admissible in
evidence.
15. Though informant Meeta Devi (PW-4) has stated in
her examination-in-chief in consonance to the prosecution case that
the appellant Bharat Sao had eliminated her daughter around two
years back in village Bhojdih. On receiving phone call, she rushed to
village Bhojdih and found the blood drenched dead body of her
daughter sustaining injury on her head there. She learnt there that
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Bharat Sao had eliminated her. But she has not disclosed the name
and identity of the source of information and none has come forward
to corroborate the factum of divulgence of story of murder of the
deceased by the appellant to her. Moreover in quite contradiction to
the prosecution case as taken by her in her fardbeyan that when she
arrived at the place of occurrence, she learnt about committing
murder of her daughter by the appellant and his father Kameshwar
Sao, she has stated in her examination-in-chief that she learnt there
about committing murder of her daughter by the appellant Bharat Sao
only. In her fardbeyan, she has not taken the name and identity of the
source of information, but in quite contradiction to the aforesaid
aspect of the case, she has stated in Para-2 of her examination-in-
chief that her grand-daughter divulged her that her father committed
murder of her mother by assaulting her by means of lodha (stone
meant for grinding spices). In Para-10 of her cross-examination, she
has also stated that barring her grand-daughter, none has divulged her
about committing murder by Bharat Sao. The grand-daughter of the
informant Radha Kumari examined in this case as PW-5 has not
corroborated the factum of divulgence of committing murder of the
deceased by her father to the informant. Hence, aforesaid statement
of the informant for want of corroboration is not admissible in
evidence. As per the prosecution case, as adumbrated in the
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fardbeyan, the appellant used to thrash her daughter as he used to
earn paltry amount by vending tikuli and sindur as hawker and did
not make effort to earn more money by doing some other work
despite persistent insistence of her daughter. As per the aforesaid
prosecution case, appellant committed murder of the deceased over
her persistent insistence for earning more money by doing some
other work instead of vending tikuli and sindur as hawker thereby
earning paltry amount. But in quite contradiction to the aforesaid
prosecution case, the informant has stated in Para-4 of her
examination-in-chief that Bharat Sao used to demand Rs. 10,000/-
preceding to the occurrence and committed murder of her daughter
for not coughing up the aforesaid demand. More so, though in her
examination-in-chief she has stated about demanding of Rs. 10,000/-
by Bharat Sao preceding to the occurrence, but in Para-9 of her cross-
examination, she has stated that Bharat Sao never demanded money
from her and he had also not demanded any money from her
daughter before her. Thus, from perusal of the testimony of the
informant, it appears that her aforesaid testimony is in quite
contradiction to the prosecution case as alleged in the fardbeyan and
also intra se regarding demand of money by Bharat Sao (appellant)
preceding to the murder of her daughter, cause of murder of her
daughter, source of information of the murder of the deceased by the
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appellant, assailants of the deceased and non-corroboration of story
of the murder of the deceased by the appellant as stated by the
informant by her grand-daughter. Hence, aforesaid testimony of the
informant does not appear to be reliable and worth credence.
16. The only eye witness of the occurrence is said to be
the daughter of the deceased (grand-daughter of the informant),
namely, Radha Kumari (PW-5). From perusal of the testimony of the
said witness, it appears that she had divulged her age as three years
on the date of giving deposition though the Court has assessed her
age as six years. But the informant PW-4 has stated in Para-7 of her
cross-examination that her grand-daughter (PW-5) is aged about five
years. Said deposition of the informant was recorded on 08.05.2012
while the date of occurrence is 09.07.2010, hence PW-5 must be
three years old at the time of occurrence. Learned Trial Court has
tested the competency of the said witness before recording her
testimony by putting some questions to her and in reply to the
question as to for what purpose she has come to the Court, she had
replied that she had arrived at jail and she has failed to disclose
reason for her visiting there. Though she has also replied to the
questions about number of brothers and sisters she is having and as to
whether speaking truth or lie is a good, but she was not subjected to
more questions to test her competency to depose before the Court. As
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she had no knowledge of the place of visit and reason for visiting
there, but instead of doing so, learned Trial Court has certified her to
be competent witness. In view of the aforesaid aspect of the case and
considering such a tender age of the witness, in our opinion, she does
not happen to be competent child witness. From perusal of the
record, it appears that none of the eye witness has also come forward
to corroborate aforesaid testimony of PW-5.Thus testimony of such
uncorroborated and incompetent child witness is not worth credence
and reliable.
17. Moreover, as per fardbeyan, the informant had
learnt the occurrence of murder of her daughter by her son-in-law
(appellant) and his father by means of brick, but she has not
disclosed the name and identity of the source of such information
while in her examination-in-chief, she has stated that she had got
knowledge of the aforesaid occurrence from her grand-daughter
(PW-5) at the marital house of her daughter, but in the fardbeyan, she
had not divulged the factum of learning of the occurrence through her
grand-daughter though the fardbeyan was given subsequent to
meeting with her grand-daughter at the place of occurrence which
creates serious doubt about the prosecution case and also about the
credibility of the informant (PW-4) as once she learnt about the
complicity of the appellant in the occurrence through PW-5 then
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why she has not stated so in her fardbeyan? Said aspect of the case
also indicates that PW-5 actually had not witnessed the occurrence
rather is a tutored witness. Though PW-5 has stated in her
examination-in-chief that her father Bharat Sao (appellant)
committed murder of her mother by means of brick, lodha and
khanti, she had witnessed the occurrence, she had also protested it
preceding to the occurrence and started weeping whereupon her
father extended threatening of dire consequence to her and after
assaulting her mother, he absconded. But in para-6 of her cross-
examination, she has stated that she was sleeping at the time of
occurrence. When she woke up, she found her mother died and father
absconding. When her father assaulted her mother, she and her
brother and sister were sleeping and after her awakening, people
arrived there. The aforesaid statement of PW-5 candidly indicates
that she had not witnessed the occurrence rather she was sleeping at
the time of occurrence along with her siblings and when she woke up
she found her mother dead. In view of the aforesaid contradiction
between her statement given in her examination-in-chief and that
given in her cross-examination about witnessing of the occurrence by
her, aforesaid child witness also does not appear to be worth
credence and reliable. Thus, in our opinion, it would not be safe to
hold conviction of the appellant relying upon the sole testimony of
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the aforesaid incompetent child witness of the case.
18. As per the prosecution case as taken by the
informant in her fardbeyan, the appellant had assaulted the deceased
by means of brick while as per the statement of the informant given
by her in her examination-in-chief, she gathered knowledge from her
grand-daughter (PW-5) about assaulting the deceased by the
appellant by means of lodha which means that the appellant had
assaulted the deceased by means of hard and blunt substance. I.O.
(PW-7) has stated in Para-4 of his examination-in-chief that he found
blood stained brick bat at the place of occurrence but from perusal of
the post mortem report and testimony of Dr. Sudhir Kumar (PW-8),
it appears that doctor has opined the cause of death due to anti-
mortem injury inflicted to the deceased by sharp cutting weapon.
Thus, the aforesaid ocular evidence of the prosecution also does not
stand corroborated by the medical evidence.
19. In the facts and circumstances of the case, I find
and hold that the prosecution has utterly and miserably failed to
substantiate the prosecution case beyond all reasonable doubts by
adducing consistent, trustworthy and reliable ocular and documentary
evidence. Hence, the impugned judgment and order of conviction
and sentence passed by the learned trial court is set aside and the
appellant is acquitted from the charges levelled against him. As the
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appellant is in custody, he is directed to be released forthwith, if not
wanted in any other case. Accordingly, this criminal appeal is
allowed.
20. Let a copy of the first and last page of this
judgment be handed over to the learned Amicus Curiae, Ms. Proniti
Singh, and learned Amicus Curiae be paid prescribed fee by the
Patna High Court Legal Services Committee.
(Prakash Chandra Jaiswal, J)
Dr. Ravi Ranjan: I agree.
(Dr. Ravi Ranjan, J)
Mishra/-
AFR/NAFR AFR
CAV DATE 13.03.2018
Uploading Date 06.04.2018
Transmission 06.04.2018
Date