Patna High Court
Sheela Devi @ Shail Kumari vs State Of Bihar on 13 May, 2011
Author: Gopal Prasad
Bench: Shyam Kishore Sharma, Gopal Prasad
CRIMINAL APPEAL (DB) No.671 OF 2006
With
CRIMINAL APPEAL (DB) NO. 789 OF 2006
With
CRIMINAL APPEAL (DB) NO. 791 OF 2006
*******
Against the judgment of conviction and order of sentence dated
29th July, 2006 passed in Sessions Trial No. 126 of 2000 by Sri
Krishna Mohan Srivastava, learned Additional Sessions Judge,
F.T.C. No. I, Patna
****************
1. MOTILAL PANDIT SON OF LATE RAMKHELAWAN PANDIT
2. SARSWATI DEVI WIFE OFMOTILAL PANDIT
3. SANJAY KUMAR SANEHI SO OF MOTI LAL PANDIT
......................APPELLANTS (in Cr. Appl. No. 671/2006)
4. VIJAY KUMAR MISHRA @ VIJAY KUMAR MITRA SON OF
MOTILAL PANDIT .......APPELLANT (in Cr. Appl. No. 789/2006)
5. SHEELA DEVI @ SHAIL KUMARI WIFE OF VIJAY KUMAR
MITRA .....................APPELLANT (in Cr. Appl. No. 791/2006)
ALL RESIDENT OF VILLAGE- YOGIPUR, P.S.- HILSA, DISTRICT-
NALANDA
VERSUS
THE STATE OF BIHAR ............RESPONDENT (IN ALL APPEALS)
***************
For the Appellants :-Mr. K. P. Singh, Sr. Advocate
Ms. Jyotsna Kumari, Advocate
Mr. Raj Shekhar, Advocate
For the State :-Mr. Ashwini Kumar Sinha, APP
For the Informant :-Mr. Anjani KUmari Sinha, Advocate
**********************
PRESENT
THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA
THE HON'BLE MR. JUSTICE GOPAL PRASAD
S.K. Sharma & Above noted appeals preferred by the appellants
Gopal Prasad, JJ.
named above have been taken up together because these
appeals have arisen out of one judgment dated 29th July,
2006 passed in Sessions Trial No. 126 of 2000 by the
learned Additional Sessions Judge, F.T.C. No. I, Patna by
which these appellants have been convicted for the offences
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punishable under Sections 302/34 and 201/34 of the Indian
Penal Code and they have been sentenced to undergo
rigorous imprisonment for life under sections 302/34 IPC
and five years rigorous imprisonment under Sections
201/34 of the Indian Penal Code. Sentences were ordered to
run concurrently.
2. After recovery of a dead body of a woman on
19.2.1997 the case was registered on the basis of fardbeyan
of Chowkidar, Kapil Prasad (PW 5) against unknown. In the
morning of 19.2.1997 PW 5 heard rumor regarding lying of a
dead body of a woman south of the new By-pass road near
village Dhelwa. PW 5 went there and located the dead body
of an unknown lady who appeared to be 25 years of age but
no body could identify the deceased. The case was registered
vide Phulwari P.S. Case No. 75 of 1997 dated 19.2.1997
under Sections 302/201 IPC. After investigation chargesheet
was submitted and the case was committed to the Court of
Sessions where the charges were framed against these five
appellants under Sections 302/34 and 201/34 of the Indian
Penal Code and explained to them to which they pleaded
their innocence and trial proceeded.
3. Defence of the appellants was that the dead
body was not of the deceased Meena Devi, as claimed,
rather the dead body was of a stranger and the appellants
were roped in on the basis of suspicion.
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4. In order to prove the case, the prosecution has
examined 7 witnesses before the trial court. PW 1 Devendra
Thakur is a Government Photographer and he has taken
photograph of the deceased. He has gone to the Mortuary
at Patna Medical College and Hospital on the requisition and
there three snaps (Exts. 1, 1/1 and ½) were taken. Material
witnesses of the prosecution are PWs, 2, 3, 4 and 5. PW 5,
no doubt, is the informant but he is not a witness to the
occurrence. It is he who brought the law into motion after
informing the police after recovery of dead body of a lady. PW
6 is the Dr. Ashok Kumar Yadav who has conducted post
mortem examination of the deceased. PW 7 is the
Investigating Officer who initially investigated the case but
soon thereaftter the investigation was entrusted to Ramraj
Singh. PW 7 handed over the investigation to one Ramraj
Ram, Sub-Inspector of Police (PW 7 paragraph 12). Major
part of investigation was thus conducted by Ramraj Ram but
he has not been examined.
5. On behalf of defence Binod Kumar has been
examined as DW 1.
6. Before proceeding further, it would be
appropriate to deal with the evidence of PW 6, Dr. Ashok
Kumar Yadav. This witness has stated that on 19.2.1997
one unknown dead body of a female aged about 25 years
was brought by Constable No. 502, namely, Biswnath Singh
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(not examined) to the PMCH at 12.40 P.M. and the post
mortem was conducted on the same day in the evening at
3.30 P.M. The doctor found rigor mortis present. The body
was having three injuries. Injury no. 1 was abrasion 3"x1"
on the middle side of the left elbow. Injury no. 2 was one
abrasion ½" x ½" in size on the dorsome of the right hand
between thumb and index finger and injury no. 3 was one
ligature mark 7" long and ½" wide on the front of the neck
above thyroid cartilegde between lower part of both ears.
Death was due to aforesaid ante mortem injuries. Major
contributory to death was injury no. 3 because the death
was due to Asphyxia and due to excess pressure on the
neck. Therefore, the evidence of doctor shows that the cause
of death of the lady was Asphyxia due to throttling.
7. PW 2 is the brother of Meena Devi who was
married with appellant Vijay Kumar Mitra on 28.4.1977.
She was living with her in-laws. Subsequently her husband
got employment at Kahalgaon and he was transferred to
Domchanch. Meena Devi has passed her initial days after
marriage quite happily at her matrimonial house but as
soon as her husband came into job, he married with Sheela
Devi. When the torture was started upon her then the matter
was brought before the caste panchayat where Vijay Kumar
Mitra assured for proper behavior henceforth. This witness
has further stated that on 23.2.1997 he came to his sister's
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house where she was found missing. The members were
present in the house they were Moti Lal Pandit, Sanjay
Kumar Snehi, UdayKuamr, Sarswati Devi. They told that
Meena had gone with her husband to Domchanch. PW 2
went there but he found only accused Vijay Kumr and
Sheela Devi. They could not give any satisfactory reply
regarding whereabouts of Meena Devi rather they told that
she was residing at the house situated at Mahavir Nagar,
Patna. PW 2 came to his father and told about the
occurrence. Sometimes thereafter, he, his brother and father
went to inform the police where a photograph of a dead body
was shown and that photograph (Exts. 2, 2/1 and 2/2) was
of his sister. PW 2 told that the dead body was thrown on the
new by-pass road. Therefore, the evidence of this witness is
to the extent that his sister was married with Vijay Kumar
Mitra on 28.2.1977 and the photograph produced by the
officer-In-charge was of his sister. Later on he denied the
suggestion that the photograph was not of his sister.
Similarly PW 3 has supported the case in entirety to the
statement of PW 2 with regard to marriage and other
versions which has been given by PW 2.
8. PW 4 also stated the same line of evidence as of
PW 2 and she has merely supported the version of PW 2 that
Meena Devi was married with Vijay Kumar Mitra in the year
1977 and when the photograph was shown then she
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identified the same to be of her daughter Meena Devi. These
are the evidences which have been brought by the
prosecution.
9. The trial court after considering the evidences
to be sufficient and came to the opinion that the
circumstances enumerated by the prosecution had given a
conclusive proof that these appellants were the persons who
were responsible for causing death of Meena Devi.
10. Learned counsel for the appellants has
assailed the judgment and it has been submitted that
besides other technicalities there are substantive error in the
judgment. It has been submitted that the inquest report has
not been brought on the record. Investigating Officer who
has conducted major part of investigation has not appeared.
Attention has been drawn towards the fact of the judgment
that the photograph which the witnesses are claiming to be
of Meena Devi are not of Meena Devi rather that is a different
photograph and the appellants have been roped in only on
the basis of photograph which was never of Meena Devi.
Attention has been drawn towards the fact that when the
accused persons are being roped in on the basis of
photograph of stranger then at the very initial stage they
filed petition before the court of the learned S.D.J.M. on
2.12.1999 in which they stated that the photograph which
has been produced by the prosecution be compared with
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admitted live photograph of Meena Devi by the expert but
this was overlooked and they filed a petition before this
Court. One petition which was filed on 12.7.200 before the
trial court is on record wherein they have prayed that the
photograph which has been produced by the prosecution is
not of Meena Devi, and therefore, additional evidence under
section 31 Cr.P.C. is mandatory in the present case to
ascertain the identity of the dead body which according to
the prosecution, was the dead body of Meena Devi. If the
identity of the deceased is not challenged then the entire
evidence produced by the prosecution becomes non est.
Attention has been drawn towards the very fact that the
marriage of Meena Devi with Vijay Kumar Mitra was
performed on 28.4.1977 and the occurrence is of 1997 i.e.
after 20 years of marriage of Meena Devi. The deceased is
said to be aged about 25 years from the version of the
informant which is the first version of the occurrence.
Though the inquest report is not on record but the learned
counsel for the appellants submitted that the same is
available in the case diary and in which the Investigating
Officer has also ascertained that the deceased appears to be
of 25 years. Attention has been drawn towards the evidence
of the doctor who has conducted the post mortem
examination of the deceased. The doctor has found the age
of the deceased to be 25 years. These are the independent
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assessment of the age of the deceased. In the present case
age of the deceased has been assessed by three persons: first
the informant, second the Investigating Officer and the third
by the doctor who conducted post mortem examination. All
the three have assessed the age of deceased to be 25 years. If
the version of the prosecution is presumed to be correct then
the case becomes quite doubtful because the married lady of
1977 cannot be supposed to be 25 years of age in the year
1997 because these facts would show that Meena Devi must
have been of 5 years at the time of marriage which is
hypothetical assessment and this cannot be presumed so
the dead body would not of the wife of appellant Vijay Kumar
Mitra rather it was of stranger with whom these appellants
have been roped in. Regarding other prosecution laches it
has been submitted that PW 1 in his evidence has stated
that he got requisition and thereafter, he went to PMCH and
took three snaps of the deceased but the Investigating officer
has given different version of the occurrence and according
to him, the photography was done at the place of occurrence
itself. These two are quite contradictory facts because the
prosecution case is only to the extent that the photography
was done at one place and not at both places. Therefore, the
very fact that the photograph was taken at the place of
occurrence or at PMCH itself is doubtful. It has been also
pointed out that the appellants prayed that the photograph
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of the deceased of the present case should be matched by
the experts and for that admitted photograph of Meena Devi
was produced. These facts were overlooked which were
essential in the circumstances of the present case and those
facts could have gone to the root of the matter. So it has
been argued that benefit on this count must go to the
accused persons because they were consistent since the
beginning that the photograph was not of the deceased
rather her photograph was different. This question regarding
identification of the photograph was put before all the
material witnesses.
11. On the other hand, learned counsel appearing
on behalf of the informant has submitted that no serious
challenge has been given regarding identity of the deceased
and if there is any minor lacuna the benefit of the same
should not go to the defence.
12. We have perused the entire evidence. Not even
one witness has stated that he had seen any part of the
occurrence. There is no witness either of killing or of
throwing the dead body. When there is no witness to the
occurrence then also the case can be proved on the basis of
circumstantial evidence and such circumstantial evidence
must be cogent. In the present case eye witness is at all
lacking. The circumstantial evidences are also not brought
on the record because no body has come to depose that he
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has seen any part of the occurrence. The trial court in
paragraph 22 of the judgment has enumerated 8
circumstances. First circumstance is that Meena Devi was
married with Vijay Kumar Mitra on 28.4.1977 and at that
time he was unemployed. With regard to this circumstance it
would be said that this cannot be a ground for presumption
of the crime. Second circumstance is that Vijay Kumar Mitra
got his employment in the year 1982. Third circumstance is
that without divorcing his first wife he performed another
marriage in the year 1990 with Sheela Devi. Fourth
circumstance is that Meena Devi was being tortured. Fifth
circumstance is that the dead body of Meena Devi was found
throwing on the by-pass road. Sixth circumstance is that the
photographs were of deceased Meena Devi. Seventh
circumstance is that Meena Devi was strangulated to death
and 8th circumstance is that no information was given to the
police after disappearance of Meena Devi. These
circumstances are also inconsistent and these cannot be
relied upon for the purpose of conviction. These
circumstances even if proved, could not make a case beyond
the shadow of all reasonable doubt. The circumstantial
evidence which can prove the case must be of clinching
nature and the circumstances must form a chain upon
which only inference could be drawn that the accused and
accused alone are responsible of commission of offence. The
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circumstances relied upon by the trial court were not the
circumstances which would only mean that it was the
accused alone who were responsible for commission of
offence of killing of the deceased and disposing of the dead
body.
13. The entire evidences as discussed above, show
that there is no circumstance at all pointing out guilt of any
of the appellants. In the result, we are of the view that the
prosecution has not been able to prove the charges against
the appellants beyond the shadow of all reasonable doubts.
Accordingly, the judgment of conviction and sentence is set
aside and these appeals are allowed. All the appellants
except appellant no. 4 are on bail. They are discharged from
the liabilities of their bail bonds. Appellant no. 4 Vijay
Kumar Mitra is directed to be released forthwith if not
wanted in any other case.
(Shyam Kishore Sharma, J.)
(Gopal Prasad, J.)
Patna High Court, Patna
Dated 13th May, 2011
Avin/N.A.F.R.