Patna High Court
Ujjal Mandal And Ors. vs State Of Bihar on 21 July, 2000
Equivalent citations: 2000(3)BLJR1726
Author: Ashok Kumar Verma
Bench: Ashok Kumar Verma
JUDGMENT N. Pandey, J.
1. The appellants have moved this appeal against order of their conviction under Sections 302/34 of the Indian Penal Code (I.P.C.) with sentence of life for haying committed the murder of Sulekha Devi, daughter of the informant Rameshwar Mandal (P.W. 5). Appellant Ujjwal Mandal is the husband of deceased Sulekha whereas appellant Netai Mandal is father-in-law and Bijay Mandal, brother of the husband.
2. The case of the prosecution, in short, is that on 25.5.1990, the informant received intimation through one Doman Mandal and Govind Mandal of village Gopalpur that his daughter had committed suicide by taking poison. The informant rushed to the village Gopalpur and found his daughter lying dead on a chowki in the house of the appellant. He found her neck strangulated. The informant having suspected that his daughter was done to death tried to find out the accused-persons but they were traceless. Even villagers also on enquiry did not disclose what was the reason for death. On the above information, the Police registered a case and ultimately, the accused-persons were put on trial on the charge of having committed murder.
3. The defence of the accused-persons as would appear from the statement under Section 313 of the Code of Criminal Procedure as well as the trend of cross-examination of the prosecution witnesses was total denial of the allegation. According to the accused-persons, Sulekha had, in fact, committed suicide by consuming poison.
4. The prosecution in support of its case had examined altogether eight witnesses. Out of them P.W. 1 Tarini Mandal, P.W. 2 Helu Mandal and P.W. 4 Dhiru Mandal belong to the village of the informant and had gone to the house of the appellants along with the informant. P.W. 5 Rameshwar Mandal is the informant himself whereas P.W. 6 Subodh Kumar Banerjee is a formal witness who proved the First Information Report (Exhibit 3) and post-mortem report (Exhibit 4). P.W. 7 Tapeshwar Prasad Singh is the Investigating Officer and the last witness is P.W. 8 Dr. Bindu Bhushan who had certified that the post-mortem report, was prepared and signed by Dr. Ashima Pal.
5. At the very outset, it can be noticed that there is no eye-witness to the occurrence in this case. The success of the prosecution is mainly based on circumstantial evidence. There is no dispute that Sulekha Devi was married with appellant Ujjal Mandal. This is also not in dispute that death of Sulekha took place inside the house of the appellants. According to their defence, she had committed suicide by taking poison whereas as per the case of the prosecution and its witnesses, she was done to death by the accused-persons. The doctor had also found specific mark of violence on the neck and other part of body of the lady. The prosecution has alleged that the accused-persons were torturing Sulekha and had also threatened to kill her if their demand of dowry remained unfilled. She had also written a letter to her father (Exhibit-1) that the accused-persons were making a plan to kill her. It would be relevant to mention that on the basis of the above allegation charge under Section 304B, I.P.C. was also framed. But the trial Court on consideration of the relevant materials, held that no case under Section 304B, I.P.C. was made out. Therefore, he convicted the accused-persons only under Section 302 read with 34, I.P.C.
6. In the facts and circumstances of the case and the materials available on record, therefore, it would be necessary to consider whether the conviction of the accused-persons under Sections 302/34, I.P.C. as recorded by the trial Court was justified. Because specific defence of the accused-persons, as I have noticed, is that Sulekha Devi had committed suicide by consuming liquor and the entire allegation of the prosecution against them was concocted.
7. In this case since the doctor who had conducted the autopsy had retired and was not available, therefore, P.W. 8 Dr. Bindu Bhushan was -examined by the prosecution to certify the post-mortem report. He has stated that on perusal of the post-mortem report, he was pf the opinion that the death of the deceased was as a result of asphyxia, i.e., by throttling.
8. From the post-mortem report also, which has been marked as Exhibit 4, it would appear that the whole face, neck, upper part of chest and both arms were cyanosed and froth was coming from both the nostrils. On dissection, the muscles underneath the skin of neck were congested. The trachea was congested with frothy sanguineous discharge. The left cornea of the hyoid bone was fractured. The lungs were congested. The chambers of the heart were filled with blood. The lever, spleen and kidneys were congested. The stomach was partly filled with semi-digested food material. The bladder was empty. The uterus was normal in size. The scalp and brain revealed no injuries. Rigor mortis was passing. Time elapsed since the death was between 36 to 48 hours. In the opinion of the doctor, the cause of death was due to asphyxia caused by throttling.
9. It was contended by the learned Counsel for the appellants that in absence of the evidence of the doctor, who had conducted the autopsy of the deceased, the evidence of P.W. 8 was not admissible. In fact, the case of the defence was seriously prejudiced because of non-examination of the doctor. In my view, there is no substance in such a submission of the Counsel because from a bare reference to the evidence of the doctor and the post-mortem report, it would appear that no objection whatsoever was raised by the defence before the trial Court at the time when such a document was admitted into evidence. Therefore, in view of the provisions of Section 294(2) of the Cr.P.C. since the post-mortem report was admitted without any objection, it will not be open to the defence at this stage to raise such a question.
10. It was then contended that even accepting the credibility of the post-mortem report since no mark of finger was found by the doctor on the neck of the deceased, it would not be proper to hold that the cause of death was due to throttling. Because, in a case of such nature, unless and until there is any mark of violence on the neck, it cannot be said with certainty that cause of death was throttling.
11. In my view, there is no substance in this submission as well. Because, from a bare reference to the post-mortem report and the evidence of P.W. 8, it would appear that sufficient mark of violence were found on the neck of the deceased. Besides that, the doctor had also noticed congestion of trachea and left cornea of thyroid bone fractured. Therefore, until and unless an attempt was made to cause death by throttling, such injuries were not possible. The case of the defence that Sulekha died due to consuming poison was completely rejected by the doctor nor there was any material in the post-mortem report which could prove such defence. Therefore, in my view, the finding of the trial Court that cause of death of Sulekha was throttling appears quite justified and reasonable.
12. learned Counsel then contended that in a case of circumstantial evidence, motive of the accused behind the offence committed is relevent to be proved. In this case, the prosecution has failed to prove actually what was the motive of the accused-persons to commit the murder of the deceased.
13. In my view, from the evidence as noticed above, it would be evidentially clear since deceased Sulekha was not good looking, therefore, she was being regularly tortured. The evidence has also come that earlier also on different occasions, she had apprehended that she might be killed. Apart from what has been noticed above, there is no dispute that at the time of death Sulekha was residing with her husband. The accused-persons had initially come forward with a plea that Sulekha died after consuming poison. But this part of the case of the defence is being completely falsified by the medical evidence. Because the doctor did not find any trace of poison at the time of post-mortem of the deceased. Rather there is positive evidence of the doctor as well as findings in the postmortem report that death of the deceased was due to throttling and there were sufficient marks of violence on the neck.
14. That apart, the other circumstance regarding absence of the accused after the murder of the deceased also appears quite unnatural and doubtful. Because appellant No. 1 is admittedly the husband of the deceased. In normal course, after such an occurrence, the husband is expected to be present by the side of the wife after the death. But, in this case, when the informant and witnesses arrived, the husband and all other family members had fled away. Therefore, these are also strong circumstances to hold that the appellant No. 1 after committing murder of his wife, had fled away.
15. But, so far as the remaining appellants are concerned, as I have already noticed, no circumstance has been shown by the prosecution to raise even a remote doubt that they also carried grudge against the deceased and hence committed her murder in connivance with her husband. The prosecution witnesses have also not stated that deceased Sulekha Devi had made any allegation against the family members. Therefore, in absence of even a remote circumstance against, these appellants about commission of the offence, it would not be proper to hold them guilty. It would be significant to note that charge under Section 304B, I.P.C. against these appellants had already failed. Therefore, unless and until there is any positive evidence either ocular or circumstantial, it would not be proper to connect these appellants with the alleged crime.
16. Therefore, for the reasons stated above, the order of conviction and sentence passed by the trial Court against appellant No. 1 Ujjal Mandal is affirmed but the other appellants, namely, Nitai Mandal and Bijay Mandal are acquitted of the charges and the order of conviction and sentence passed by the trial Court against them is set aside. They are discharged from the liability of the bail-bonds. Accordingly, this appeal partly succeeds.
Ashok Kumar Verma, J.
17. I agree.