BINOD SAO vs THE STATE OF JHARKHAND

Heard learned counsel for the appellant and the learned counsel for the State.   Â

The appellant is aggrieved by the impugned Judgment of conviction dated 28.11.2006 and Order of sentence dated 29.11.2006, passed by the

learned Additional Sessions Judge, F.T.C.-VI, Hazaribag, in S.T. No. 12 of 1988, whereby, the sole appellant, who is the husband of the deceased, has

been found guilty and convicted for the offence under Sections 302 / 34 of the Indian penal Code. Upon hearing on the point of sentence, the appellant

has been sentenced to undergo R.I. for life and fine of Rs. 2,000/-, for the said offence.

The prosecution case was instituted on the basis of the F.I.R lodged by the informant Budhni Devi at Barkatha Police Station on 1.6.1987. The

informant is the sister-in-law (gotni) of the deceased, and sans the unnecessary details in the FIR, she has stated that the accused, Binod Sao had

married another lady, in spite of the fact that his first wife Gorwa Devi was living. Thereafter, there was a panchayati, in which, it was decided to give

some land to the first wife of the accused. On 28.5.1987, some land was transferred in name of Gorwa Devi at Koderma and thereafter, they

returned back to the house. It is alleged that on the same night at about 8:00 P.M, the father-in-law of the informant Deepan Sao, her mother-in-law

Ritia Devi, her sister-in-law (nanad) Faguni Devi, her brother-in-law (bhaisur) Binod Sao, i.e., this appellant, and the newly married wife of Binod Sao,

namely, Urmila Devi, forcibly dragged Gorwa Devi to the well. The informant also wanted to follow them, but she was prevented by the accused

persons. She has also stated that another accused, Uttim Nayak was also present there and all of them strangulated Gorwa Devi and put her in the

well. In the night, when her husband returned back, she informed her husband about the occurrence whereupon, her husband tried to search her and

found the dead body in the well and thereafter, the police case was instituted. It is also alleged in the FIR that Rs.2000/- was given to the said Uttim

Nayak for committing the murder of Gorwa Devi. On the basis of the F.I.R, Barkatha P.S Case No. 20Â of 1987, corresponding to G.R No.285 of

1987, was instituted for the offence under Sections 302, 120-B / 34 of the Indian Penal Code, against the named accused persons, and investigation

was taken up. After investigation, the police submitted the charge-sheet in the case.

After commitment of the case to the Court of Session, charge was framed against all the accused persons for the offences under Sections 302 and

120-B of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. It appears from the

impugned Judgment that the appellant had absconded during trial and ultimately, he was arrested on 24.9.2005 and was put to trial. In course of trial,

prosecution has examined eight witnesses, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of

the deceased.Â

P.W.-2 Budhni is the informant of the case. She has supported the prosecution case, stating that the occurrence had taken place about one year

ago. Her elder brother-in-law, Binod Sao had married Urmila Devi, even though he was earlier married to Gorwa Devi. There was a panchayati, after

which about 14 Kathas of land was transferred in favour of Gorwa Devi by the grand-father of Binod Sao. Thereafter, Uttim Sao was given

Rs.2000/- for killing Gorwa Devi. On the date when the land was transferred, 5-6 persons, including the accused Binod Sao, forcibly took Gorwa Devi

to the well and they strangulated her and put her in the well. She also tried to follow them to the well, but she was prevented by the accused persons.

In the night, when her husband returned back, she informed her husband about the occurrence. Thereafter, her husband found the dead body in the

well and the police was informed. She had given the statement at the Police Station, whereupon, she had put her thumb impression. She has also

stated that her statement was also recorded under Section 164 of the Cr.P.C. She has identified the accused in the Court.

P.W.-6 Kishori Sao is the husband of the informant Budhni. This witnesshas not supported the prosecution case and has turned hostile, stating that

when he returned back in the night, his wife informed him that Gorwa had gone towards the well, but she had not returned. Thereafter, he saw the

dead body in the well.

P.W.-3 Ram Tahal Sao, P.W.-4 Daulat Sao, the brother of the deceased and P.W.-5 Mohan Sao, the cousin of the deceased, have also supported

the fact, stating that the accused had married another lady and there was a panchayati for that and after panchayati, some land was transferred by the

grandfather of the accused in favour of the deceased. Thereafter, the deceased was done to death and her dead body was found in the well. They

were informed by Budhni that the accused persons had committed her murder.Â

P.W.-1 Dr. Surendra Prasad had conducted the post-mortem examination on the dead body of the deceased on 29.5.1987. He has stated in his

evidence that no material sign of any injury was found on the person of the deceased and the death was found due to drowning. He has proved the

post-mortem report to be in his pen and signature, which was marked as Exhibit-1.

P.W.-7 Ram Singhasan Pandey is the I.O, of the case and he has stated about the investigations made by him. P.W.-8 Md. Abu Rashid is a formal

witness, who has proved the FIR of a U.D case, which was marked as Exhibit-2 in the case. This FIR shows that it was lodged by Kishori Sao, on

the next day of the death of the deceased, informing that she had died due to drowning in the well.

The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. The defence has

also examined three witnesses.

Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below

cannot be sustained in the eyes of law, inasmuch as, there is no eyewitness to the occurrence. Even P.W.-2 Budhni is not the eyewitness to the

occurrence, as she has specifically stated that she was prevented by the accused persons from going to the well. Though it is the case of the

prosecution that she was strangulated and put in the well, but this fact is not supported in the medical evidence of P.W.-1 Dr. Surendra Prasad who

had found the death due to drowning. The other witnesses examined by the prosecution are only the hearsay witnesses, who were informed about the

occurrence by P.W.-2 Budhni. Even the husband of Budhni, P.W.-6 Kishori Sao has turned hostile and has not supported the case, rather he has

stated that he was informed that the deceased had gone to the well and she had not returned back. Learned counsel accordingly, submitted that the

fact that the deceased might have committed suicide due to the fact that the accused had married another lady, cannot be ruled out, and the accused

cannot be found guilty for the offence under Section 302 of the Indian Penal Code. It is submitted that no charge was framed for the offence under

Section 306 of the Indian Penal Code.Â

Learned counsel for the State on the other hand has opposed the prayer and has submitted that P.W.-2 Budhni is the eyewitness to the occurrence

and she has stated that the deceased was dragged by the accused persons, including the appellant herein, to the well and thereafter, her dead body

was found from the well. The ocular evidence is also supported by the medical evidence of P.W.-1 Dr. Surendra Prasad, who had found the death

caused due to drowning. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of

sentence passed by the Trial Court below.

Having heard learned counsels for both the sides and upon going through the record, we find that it is an admitted fact that few days prior to the

occurrence, the accused appellant had married another lady. The prosecution case is that the deceased was strangulated and was put in the well, but

the evidence of P.W.-1 Dr. Surendra Prasad shows that the death was caused due to drowning, and there was no other injury on the dead body.

There is no eyewitness to the occurrence of murder, as even P.W.-2 Budhni had not seen the actual murder and she has clearly stated in her

evidence that she was prevented to go to the well by the accused persons. The other witnesses examined on behalf of the prosecution are also

hearsay witnesses who were informed about the occurrence by P.W.-2 Budhni only. The husband of Budhni who has been examined as P.W.-6

Kishori Sao, has turned hostile and has not supported the prosecution case at all, rather he has stated that he was informed by his wife that the

deceased had gone to the well and she had not returned back. This witness had lodged the FIR about the death of the deceased stating that she had

died due to drowning, on the basis of which U.D. case was instituted, prior to the present case.

Thus, from the evidence on record though this fact is established that the deceased had died by drowning in the well, but the prosecution has failed

to bring home the charge against the accused appellant that the deceased was murdered by strangulation and thrown in the well, in view of the fact

that there is no eyewitness to the said occurrence. The fact that the deceased might have committed suicide as the accused, who is her husband, had

married another lady, or that the deceased had fallen in the well accidentally, cannot just be ruled out. The accused was not charged for the offence

under Section 306 of the Indian Penal Code.

In the facts of this case, we are of the considered view that the prosecution has failed to bring home the charge under Sections 302 / 34 of the

Indian Penal Code against the accused appellant beyond all reasonable doubts and in the facts of this case, the accused was entitled to the benefits of

doubt.

For the foregoing reasons, the impugned Judgment of conviction dated 28.11.2006 and Order of sentence dated 29.11.2006, passed by the learned

Additional Sessions Judge, F.T.C.-VI, Hazaribag, in S.T. No. 12 of 1988, convicting and sentencing the appellant Binod Sao, for the offences under

Sections 302 / 34 of the Indian Penal Code, are hereby, set aside. Consequently, the appellant Binod Sao is given the benefits of doubt and he is

acquitted of the charge. The appellant, is in custody, undergoing the sentence. Let him be released and set at liberty forthwith, if his detention is not

required in any other case.

This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this

Judgment.   Â