Jharkhand High Court
Ratan Mahto And Ors. vs The State Of Bihar (Now Jharkhand) And ... on 14 May, 2003
Equivalent citations: 2003(2)BLJR1585, I(2004)DMC624
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan, Lakshman Uraon
JUDGMENT Vishnudeo Narayan, J.
1. These appeals have been preferred by the appellants named above against the impugned judgment and order dated 15-7-1996 passed by Shri Kapileshwar Prasad, Sessions Judge, Giridih in Sessions Trial No. 172 of 1996 whereby and whereunder appellants, Jagal Yadav, Gulab Yadav, Chetan Yadav and Sahodar Yadav (in Cr. Appeal No. 271 of 1999) have been found guilty for the offence punishable under Section 302/34 and 201 of the Indian Penal Code and they were convicted and sentenced to undergo R.I. for life and to pay a fine of Rs. 2,000/- each for the offence under Section 302/34 of the Indian Penal Code and they were also sentenced to undergo R.I. for three years and to pay a fine of Rs. 1,000/- each for the offence under Section 201 of the Indian Penal Code and in default to undergo S.I. for three months. However, both the offences were ordered to run currently. Appellants, Ratan Mahto, Ramu Yadav and Dharam Mahto (in Cr. Appeal No. 222 of 1999) were found guilty only for the offence under Section 201 of the Indian Penal Code and they were convicted and sentenced to undergo R. I. for three years and to pay a fine of Rs. 1,000/- each and in default to undergo SI for two months. However, they were acquitted of the charge under Section 302/34 of the Indian Penal Code.
2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 3) of PW 10 Manku Mahto, the informant who is the father of Fulwa Devi, the deceased of this case recorded by Sl. Ashok Kumar, O/C, Tisri PS on 16-3-1996 at 14.30 hours at the pond in village Ranigaddar where the dead body of the deceased was recovered and the said pond is at a distance of eight kilometers away from his village Ratan Garura and three to four kilometers away from village Kahatouri of the appellants regarding the occurrence which is said to have taken place between 14-3-1996 and 16-3-1996. The case was instituted by drawing formal FIR (Ext. 5) on that very day at 20.00 hours which is received in the Court empowered to take cognizance on 18-3-1996.
3. The prosecution case, in brief, is that the marriage of Fulwa Devi, the deceased of this case was solemnized with appellants, Jagal Yadav, son of appellants, Gulab Yadav and brother of appellants, Chetan Yadav and Sahodar Yadav, resident of village Kahatouri in the year 1975 and her 'Gouna" ceremony was performed seven years thereafter and she had gone to her matrimonial home in village Kahatouri in the company of her husband, appellant, Jagal Yadav. It is alleged that she was vexed and tortured in her matrimonial home by diverse means by appellants, Jagal Yadav, Gulab Yadav, Chetan Yadav and Sahodar Yadav and during the cultivation season she used to be brought to her matrimonial home from her parent's house and after the end of the cultivation season, she used to be assaulted by them and ousted from her matrimonial home and she used to return weeping to her parent's house. It is alleged that appellant, Gulab Yadav used to tell for the last two or three years prior to the occurrence to appellants, Jagal Yadav and Chetan Yadav that Fulwa Devi should be done to death and marriage of Jagal Yadav be re-solemnized on receipt of dowry and Fulwa Devi used to report in respect thereof to the informant and others to her arrival in her parent's house. It is also alleged that appellant, Jagal Yadav also used to tell that he will solemnize his re-marriage as Fulwa Devi is not good to look at but the informant used to make Fulwa Devi understand and used to send her to her matrimonial home. It is also alleged that in the month of last 'Bhado' prior to the occurrence the appellants and attempted to commit her murder by showing the fire of the 'Bhorsi' on her person when she was sleeping which had caused burn injury on her abdomen. The prosecution case is further that PW 6, Prayag Yadav, the son of the informant had gone to the matrimonial home of the deceased in village Kahatouri to bring her to her parent's house on the eve of the marriage of the grandson of Radhey Yadav, the brother of the informant where PW 6, Prayag Yadav did not find her and on query made by him the appellants aforesaid (in Cr. Appeal No. 271/99) evaded and become angry and retorted that they do not know as to where she has gone and PW 6, Prayag Yadav came back from village Kahatouri and reported the matter is respect thereof of the informant. It is alleged that thereafter the informant along with other family members went the matrimonial home of the deceased in village Kahatouri and made enquiry from the appellants aforesaid (in Cr. Appeal No. 271/99) but they evaded to answer and expressed their anguish, annoyance and retorted that they do no know as to where she has gone and thereafter the informant and his family members started making hectic search of the deceased and in course of that search, the informant came to learn in village Khijri from the tribal resident of village Rani Gaddar that dead body of a woman is floating in the pond in village Rani Gaddar and on this information, the informant along with other rushed to the said pond in village Rani Gaddar where they found the dead body of Fulwa Devi floating on the surface of the water in the said pond and they were intending to go to the police station to lodge information in respect thereof but in the meantime, the police came there and the dead body was taken out from the said pound and in the neck of the deceased was found swollen and tongue protruded between in the and her mouth was open and blood was coming out from her mouth and it appeared that she was done to death by throttling and after committing her murder the appellants aforesaid (in Cr. Appeal No. 271 of 1999) threw her dead body in the said pond.
4. In course of investigation, the complicity of appellants, Ratan Mahto, Ramu Yadav and Dharam Mahto (in Cr. Appeal No. 222 of 1999) transpired in the occurrence and they were also booked for trial along with the appellants of Cr. Appeal No. 271 of 1999.
5. The appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be inconstant and to have committed no offence and that they have been falsely implicated in this case on mere suspicion. It is also contended that the deceased was mentally sick and she was in habit of fleeing from her matrimonial home.
6. The prosecution has in all examined eleven witnesses in this case to subtantiate its case. PW10, Manku Mahto, the informant and PW 6, Prayag Yadav are the father and brothers respectively of the deceased PW 3, Manoj Yadav and PW 9, Hari Yadav are the cousin brother and uncle respectively of the deceased and all the four witnesses aforesaid are the resident of village. Ratan Garura PW 2, Badri Yadav is the maternal uncle of the deceased and resident of village. Madhopur, PW 1, Domi Yadav and PW 5, Narayan Yadav are the cousin brother of the deceased and resident of village Ratan Garura. All the aforesaid witnesses are not the ocular witnesses of the commission of the alleged murder of the deceased. However, PWs 1 and 5 have claimed to have seen appellants, Jagal Yadav and Chetan Yadav carrying a sack containing something with the help of wood on the road which runs from village Khatouri towards the pond in village Rani Garura. The testimony of PW 7, Guli Bhulla resident of village Ratan Garura has no bearing in this case. PW 8 Chameli Kumari, the daughter of the deceased aged between 12 to 13 years at the time of the alleged occurrence claims herself to be an ocular witness of the occurrence. PW 4 Dr. K. Kumar has conducted the autopsy on the dead body of the deceased and Ext. 2 is the post mortem report in this case per his pen. PW 11, Ashok Kumar is the IO of this case and has proved the Fardbeyan (Ext. 3), the formal FIR (Ext. 5) and has also prepared the inquest report (Ext. 4) which contains the signature of PW 3, Manoj Yadav and PW 1, Domi Yadav thereon which are Exts.1 and 1/1. Signature of the information on the fardbeyan (Ext. 3) is Ext. 1/3 and the signature of PW 9, Hari Yadav thereon is Ext. 1/2. Three witnesses have taken oath on behalf of the defence in this case and they are DW 1, Sumeshwar Yadav, DW 2, Kedar Yadav and DW 3, Darshan Rai, all resident of village Khatouri. It is pertinent to mention here that DW 2, Kedar Yadav, the son of the deceased and appellant, Jagal Yadav, is a child witness who claims to be 13 years old on 25-5-1999 when he was examined in this case though the learned Court below has assessed his age to be 9 years on that date.
7. Assailing the impugned judgment of the learned "Court below it has been submitted by the learned Counsel for the appellants that the learned Court below has not considered the evidence on the record meticulously and has erred in coming to the finding of the guilt of the appellants. It has also been submitted that there is no iota of legal evidence on the record to connect or implicate the appellants for committing the murder of the deceased and the testimony of PW8, a child witness is highly unreliable and not worthy of credit as she is a tutored witness and she has no occasion to witness the alleged occurrence as she was residing with the informant at the relevant time. It has also been submitted that there is material contradictions and incosistencies in the evidence of PW 8, which has not at all in conformity with the medical evidence, and she is a tutored witness purposely set up. It has also been submitted that the medical witness has not found any external or internal injury on the person of the dead body of the deceased, which totally rules out the commission of the murder of the deceased as alleged. It has further been submitted that PWs. 1 and 5 have also been set up in this case falsely implicate the appellants in this got up case. Lastly, it has been submitted that the deceased was in the habit of escaping from her matrimonial home because of her mental sickness and the defence witnesses have probablised the defence version in their evidence on the record and as such the impugned judgment is unsustainable.
8. Refuting the contentions aforesaid it has been submitted by the learned APP that there is evidence on the record that the deceased was subject to cruelty in her matrimonial home, which stands substantiated as per evidence of PWs. 6, 10, 2, 3, 9, 1 and 5 and the death of the deceased is unnatural one during the period she was living in her matrimonial home and PWs. 1 and 5 have seen the appellants carrying something in a sack with the help of a wooden log in the Karmatad Jungle on the way to the pond aforesaid from where the dead body has been recovered. Lastly it has been contended that the evidence of PW 8, Chameli Kumari, the ocular witness of the occurrence substantiates the charge regarding the commission of the murder of the deceased by the appellants beyond all reasonable doubts and, therefore, there is no illegality in the impugned judgment.
9. It will admit of no doubt that Fulwa Devi, the deceased of this case is the lawfully wedded wife of appellant, Jagal Yadav, their marriage have been solemnized in the year 1975 and after her 'Gouna' ceremony which was performed seven years thereafter she was living in her matrimonial home leading her conjugal life with appellant, Jagal Yadav during that period she was blessed with three children i.e. one daughter and two sons and PW 8, Chameli Kumari is her eldest child followed by DW 2, Kedar Yadav. There si evidence on the record that DW 2 is living in his parent's house whereas PW 8, and the last child of the deceased are living in the house of the informant. There is no denying the fact that the dead body of the deceased, Fulwa Devi was found floating in a pond in the village Rani Gaddar when a hectic search was made for her when she was not found present in her matrimonial home by PW 6, Prayag Yadav, where he had gone to take her back to this house on the eye of the marriage of the grandson of Radhey Yadav who is said to be the brother of the informant. On arrival of the police the said dead b6dy of the deceased was fished out from the said pond and inquest report (Ext. 4) was prepared. It is pertinent to mention here that on sack (Gunny bag) was found in the pond and also the dead body was not in the said sack, rather, the dead body of the deceased was found floating on the surface of the water. It has been stated in the inquest report that the dead body of the deceased was found swollen and tongue protruded between the teeth and there was swelling on her neck and blood oozing out from neck and chest. It has also been stated therein that it appears that the deceased has been done to death by throttling and her dead body was thrown in the pond. PW 4, Dr. Kaushalendra Kumar has deposed to have conducted the post mortem examination on the dead body of the deceased on 17-3-1996 at 2.30 p.m. and his objective finding is as follows;
"Rigor merits absent in all limbs. Foul swelling. Bloated and stouty appearance with post mortem peeling on skin at places. Breasts engorged. Pugillidics attitude of the body. Nails and heirs easily detached. Abdomen swollen up. Faecal discharge present. Tongue between tooth. Teeth intact. Both eyes sunken. Post mortem blebs with serus fluid present in front of the chest."
He has deposed that on dissection he found the skull intact and no abnormality was detected in the subcutaneous tissues of the neck of the deceased. Hyoid bones were found intact; larynx and-trachea were brown red and there was also no sign of tearing. He has specifically deposed that no definite cause of death of the deceased could be ascertained during the course of post mortem examination. However, the viscera of the deceased was preserved. It is equally pertinent to mention here at this stage that the IO did not send the visceta of the deceased to the Forensic Science Laboratory for its examination and as such, the cause of death of the deceased stands shrouded in mistery. The medical witness has further deposed in his cross-examination that he did not find any injury either internal or external on the person of the deceased. The post mortem report as well as the evidence of the medical witness does not at all whisper or give an inkling of the fact that the death of the deceased is due to asphyxia. Absence of any injury on the neck of the deceased as well as subcutaneous tissues of the neck coupled with the absence of fracture of larynx, trachea and Hyoid bones and absence of any rupture of carotid artery of the deceased rules out the possibility of the death of the deceased by strangulation or throttling. The medical witness also positively rules out the death of the deceased by drawing in the pond but still the fact remains that the death of the deceased is unnatural death which has occurred otherwise than under normal circumstances. However, I'cannot draw a presumption against the appellant in this case under Section 113B of the Evidence Act in view of the fact that the marriage of the deceased having been solemnized with appellant, Jagal Yadav in the year 1975 i.e. about 21 years of the marriage. Therefore, it appears as per the medical evidence on the record that the suicidal death of the deceased is totally rules out in this case and there is equally a big question mark regarding the homicidal death of the deceased as alleged by the prosecution but the fact remains that the death of the deceased is an unnatural death surrounded by suspicious circumstances.
10. Let us now advert to the evidence on the record. It is essential to mention here at the very out set that the background of this case.is very macabre and grim and there were aberrations in the conjugal life of the deceased with her husband i.e. appellant Jagal Yadav in her matrimonial home which appears from the evidence of PW10, the informant read, with the evidence of PWs. 6, 9, 3 and 2, besides PWs. 1 and 5. PW 6, Prayag Yadav, the cousin brother of the deceased has deposed that the deceased had led her happy conjugal initially for a period of five years and thereafter quarrel ensues between the deceased and her in-laws and she was tortured and beat by her in-laws including her husband and she used to be ousted from her matrimonial home and she was not provided with proper food. He has also deposed that appellant, Jagal Yadav used to dislike her, The evidence of PW 6 is further to the effect that he had gone to the matrimonial home of the deceased to bring her to her parent's house on the eye of the marriage of his nephew but she was not found in her matrimonial home and on query he was rebuked by her husband and in-laws which aroused reasonable suspicion regarding the welfare of the deceased, and he reported the matter to the informant (PW 10) on his return from there. PW 10, the informant has deposed to have gone to the house of appellant, Jagal Yadav in the company of his brother, son, nephew and several co-villagers on the information furnished by PW 6 and on query he was told by the appellants (in Cr. Appeal No. 271/99) that the deceased has gone somewhere and thereafter a hectic search for her was made. He has also deposed that the dead body of the deceased was found in the pond aforesaid. PW 10 the informant in his evidence on oath has also corroborated the testimony of PW 6 regarding the abortions in the matrimonial life of the deceased and torture by diverse means by the aforesaid appellant as well as the dislike of appellant, Jagal Yadav for the deceased and his wish for remarriage. PWs. 9, 3, 1, 5 and 2 have also corroborated the testimony of PWs. 6 and 10 in respect thereof in their evidence on oath. The aforesaid witnesses are, however, not the ocular witnesses of the alleged commission of the murder of the deceased by the appellants of Cr. Appeal No. 271 of 1999 but their evidence probablises the prosecution case that the deceased was subjected to cruelty in her matrimonial home by her husband and in-laws as she was dislike by her husband, Jagal Yadav because she was not good to took at PW1, Domi Yadav, resident of village Ratan Garura has deposed that he was going to village Gododih on his cycle at 6 O'clock in the morning on Wednesday in the company of PW 5, Narayan Yadav and while crossing through the Karmatad Jungle he found appellant, Jagal Yadav and Chetan Yadav going through the said jungle and they were carrying something in a sack with the help of wooden log and they were being followed by rest of the appellants. He has further deposed that be proceeded ahead on his cycle without having a talk with them, but PW 5 Narayan Yadav had a talk with appellants, Jagal Yadav and Chetan Yadav. He has further deposed that the said way is not a public road but it goes towards the pond from where the dead body of the deceased was found. PW 5, Narayan Yadav has deposed that he was going in the company of PW 1 in the early morning of Wednesday on their respective bicycles and when they were passing thorough Karmatad Jungle they saw all the appellants going towards the pond aforesaid carrying something inasackwith the help of wooden log. He has further deposed that he inquired from them as to what are they carrying in the said sack and at that appellant, Jagal Yadav retorted to him as to why is he asking in respect thereof as it does not concern him and he further told that there is mutton therein. He has further deposed that thereafter he proceeded from there for village Gododih and no return he came to know from PW 6 on 14-3-1996 that the deceased is missing from her matrimonial home. From the evidence of PW 1 and 5 it appears that they have seen the appellants carrying something in a sack passing through Karmatad Jungle early in the morning of 13-3-1996 and the said way goes to the pond in question. According to the prosecution case, the deceased was found missing from her matrimonial home from 14-3-1996 and her dead body was recovered in the pond on 16-3-1996 and the post mortem was conducted on her dead body on 17-3-1996. According to the medical witness time elapsed since death is two to three days from the post mortem examination and the period of death as per medical witness comes to 14-3-1996. PW 8, a child witness does not disclose the day or date of the commission of the murder of the deceased specifically in her evidence. However, PW 8 has deposed regarding the fact on carrying of the dead body of the deceased by the appellants in a sack in the early morning of the following day of the occurrence. Therefore, it appears that the appellants in all probability will carry the dead body of the deceased in view of the evidence of PW 8 read with the medical witness either in the morning of 14-3-1996 or 15-3-1996, Therefore, there is no occasion for PWs. 1 and 5 to see the appellants carrying something in the sack in the early morning of 13-3-T996. Furthermore, PWs. 1 and 5 have not at all deposed specifically that what was the article which was being carried by the appellants in the sack. The said sack has also not been found in the said pond nor the dead body of the deceased was found kept in the sack in the pond aforesaid, rather, the dead body of the dece'ased was found floating in the pond. The IO has not at all whispered regarding the existence of any sack in the said pond. In this view of the matter, the evidence of PWs. 1 and 5 seeing all the appellants carrying a sack containing something in the morning of 13-3-1996 in the Karmatad Jungle does not inspire confidence at all and is fit to be brushed aside and it cannot be ruled out that PW 1 and 5 have been deliberately set up as witness in this case on that score.
11. Now let us advert to the evidence of PW 8, Chameli Kumari, a child witness who is the daughter of the deceased and appellant, Jagal Yadav, I have already stated above that PW 8, Chameli Kumari aforesaid was aged between 12 to 13 years at the time of the alleged occurrence. She has deposed that she was present in the fateful night of the occurrence in her father's house at village Khatouri. She has also claims to have gone to the pond at village Rani Gaddar on the recovery of the dead body of the deceased where the 10 was present. There is evidence in her testimony that after the occurrence she is living in the house'of the informant along with her youngest brother. A child is competent to testify if he can understand the question put to him and give rational answer thereto. The learned Court below while examining PW8 in this case has not satisfied himself regarding the mental capacity, capability and understanding faculty of the child witness competent to testify that he can understand the questions put to him and give rational answers to it. The learned Court below has acted improperly in this case by examining PW 8 without having been satisfied regarding the mental capacity, capability and understanding faculty of the said witness competent to testify. The evidence of child witness is notoriously dangerous and they are very much prone to tutoring and as such evidence of a child witness has to be scrutinized with care and caution and some corroboration of his testimony is required by some natural, competent and independent witness of the occurrence. Keeping in view the aforesaid guidelines, let us now scrutinize, the evidence of PW 8 with care and caution. PW8, Chameli Kumari has deposed that her mother Fulwa Devi was done to death in the matrimonial home and it was 4 O'clock in the evening when all the appellants of Criminal Appeal No. 271 of 1999 along with her mother-in-law assaulted her and before that there was also a quarrel between the deceased and the appellants aforesaid. She was specifically deposed that appellant, Gulab Yadav had penetrated a lathi in the mouth of the deceased and thereafter the appellants passed her chest with the help of lathi as a result of which she died. Her evidence is further to the effect that the dead body of the deceased was put in a sack and it was kept on the roof and in the following morning all the appellants took the dead body to the pond at Rani Gaddar in the company of the appellants of Criminal Appeal No. 222 of 1999. Her evidence is further to the effect that she had gone to the pond aforesaid on the recovery of the dead body of the deceased. In para 7 of her cross-examination, she has deposed that two teeth of the deceased were broken due to the penetration of the lathi in her mouth and blood had oozed from her mouth which has besmeared her cloth and blood has also fallen at the place of the occurrence and the assault was perpetrated on the deceased for one hour. She has also deposed that there were a large number of persons assembled near the jackfruit tree out side the house of the appellant when the sack containing the dead body was taken away by the appellants. It is relevant to mention here that no witness of village Khatouri is forthcoming to corroborate the testimony of PW 8 regarding carrying of the dead body of the deceased in the sack by the appellants. In para 16 of her cross-examination she has deposed that the house of the appellants is 'Khaparposh' which totally rules out the possibility of the existence of the roof in the said house. But in para 20 of her cross-examination, she has deposed that the sack containing the dead body was kept on the thatched roof. She has further deposed that the IO has visited the. house of appellant, Jagal Yadav and she has shown the IO the place where the blood had fallen. In para 23 of her evidence she has deposed that she lived in the house of the appellants for one and half day after the commission of the murder of the deceased and thereafter she has gone to the house of the informant. It is relevant to mention here that her statement under Section 161 Cr. P.C. was recorded when admittedly she was living in the house of the informant. Now a pertinent question arises as to what prevented PW 8 in disclosing the commission of the murder of the deceased by the appellants to the informant and others prior to the recovery of the dead body of the deceased from the pond when she being an ocular witness was admittedly living in the house of the information. This casts a cloud of suspicions to the very credibility of PW 8 being an ocular witness of the occurrence. Furthermore, her evidence regarding the assault perpetrated on the persons of the deceased by the appellants as alleged is totally at variance with an materially inconsistent to that of the medical evidence and is equally false because of the fact that the medical witness has not found any external or internal injury on the person of the deceased. It, therefore, appears that PW8 is lying on the most material aspect of the prosecution case deliberately at the instance of the informant on being tutored as she was admittedly living in the house of the informant soon after the alleged occurrence. Therefore, the evidence of PW 8 is fit to be brushed aside as unreliable having been tutored. Therefore, is no semblance of any legal evidence on the record to give an inkiling of the fact that the deceased was assaulted and murdered in her matrimonial home. The IO has also not stated in his objective finding regarding the existence of any incrimination material having been found in the house of the appellants connecting them with the offence in question. At this stage the testimony of defence witnesses has its relevancy. DW1 and DW 3 have deposed that the deceased was mentally sick and she was in the habit to escape from her house and'she used to sing and used to take bath several times a day. DW 1 in his cross-examination has deposed that she was become mentally sick for the last four years prior to the occurrence and she used to conceal herself in the forest. They have further deposed that the deceased was never treated with cruelty in-the matrimonial home. DW2, the child witness and son of the deceased and appellant, Jagal Yadav was found capable by the learned Court below to testify this case as there is certificate to that effect given by the learned Court below which was lacking in the case of the testimony of PW 8. DW 2 has deposed that the deceased was living happily in her matrimonial home and she was properly looked after and provided with food. He has further deposed that PW 8, Chameli Kumari was living in the house of the informant prior to the death of the deceased. It, therefore, appears from the testimony of defence witnesses that the deceased was living happily in her matrimonial home in spite of the fact that she was suffering, from mental sickness. Be the case as it may, there is total absence of any legal evidence on the record to show that the deceased has been done to death in her matrimonial home by the appellants as a result of assault on her. Therefore, the charge levelled against the appellant of commission of the murder of the deceased in her matrimonial home does not stand substantiated beyond all reasonable doubts in view of the evidence on the record. The learned Court below did not at all meticulously consider the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants and viewed thus, the impugned judgment is unsustainable.
12. There is merit in these appeals which succeed. The appeals are hereby allowed. The impugned judgment of the learned Court below is hereby set aside. All the appellants are found not guilty to the charges levelled against them and they are, accordingly, acquitted. The appellants of Criminal Appeal No. 222 of 1999 are discharged from the liabilities from the bail bonds. All the four appellants in Criminal Appeal No. 271 of 1999 are hereby ordered to be set free forthwith, if not wanted in any other case.