Dukharan Singh vs The State of Bihar

R.N. Prasad, J.—The sole Appellant has been convicted for the offence u/s 302 of the Indian Penal Code and sentenced to undergo imprisonment for life vide judgment and order dated 24.8.1994 passed by 4th Addl. Sessions Judge, Vaishali at Hajipur in S.T. No. 176/70 of 1992.

Yogendra Prasad Singh is the informant. He gave his fardbeyan on 23.10.1991 at 9 A.M. at the house of this brother-in-law at village Mirza Nagar Tok that his sister Phul Kumari Devi aged about 22 years was married in 1988 with Dukharan Singh, Appellant, according to the Hindu rites. The Appellant used to torture her as he had gone in bad company. He was destroying his property. The local Mukhiya Ram Rup Singh got the learned property transferred in the name of his sister Phul Kumari Devi only with a view -to save the property. In spite of that he took Rs. 40,000/- from Ram Lagan Rai and executed mortgage deed in favour of his wife. He was pressing hard, the deceased to register the said deed but she was not ready. On 23.10.1991 at about 8 A.M. his Mama Suresh Singh informed him that Phul Kumari Devi had been killed by her husband, Dukharan Singh, Appellant, and his two associates, namely, Lakhan Rai and Amarjeet Rai on 22.10.1991 at about 11 P.M. After committing murder they had left the house. On the said information he went there and found the dead body of his sister. On enquiry he learnt that the Appellant along with two others had committed murder :and absconded.

On the aforesaid fardbeyan formal first information report was drawn. Investigation was taken up. On completion of investigation, charge sheet was submitted against three persons. The court on receipt of charge sheet took cognizance and committed the case to the court of sessions for trial. The trial court convicted the Appellant as indicated above and acquitted Lakhan Rai and Amarjit Rai.

The defence of the Appellant was that he was innocent and had falsely been implicated in the case.

The prosecution in support of its case examined 9 witnesses, out of whom P.W. 1 as well as P.W.8 is the same person and is hearsay witness. P.Ws. 2, 4 & 5 have been declared hostile. P.W. 3 is the informant and is also hearsay witness. P.W.6 is the Investigating Officer. P.W.7 is Doctor who held postmortem over the dead body. P.W.9 is Mukhiya and is not witness to the occurrence.

The death of Phul Kumari Devi is not in dispute. The dispute is with regard to involvement of the Appellant in commission of murder. In the case there is no direct evidence on the record to say that any body had seen committing the offence. P.W.1 is Mama (maternal unlce) of the informant, P.W. 3. They are hearsay witnesses. The evidence of P.W.3 is that P.W.1 informed that his sister had been done to death on which he went to the house of his sister and found her lying dead. He learnt from the villagers that she had been killed by pressing her neck. She was being ill-treated by the Appellant. His brother-in-law had gone in bad company and was destroying the property and as such local people got the property transferred in the name of his sister, the deceased. Ram Lakhan Rai got a mortgage deed executed from the Appellant and Appellant was pressing hard the deceased to register the same but she refused.

P.W.1 is Mama of P.W.3. His evidence is that he learnt that Phul Kumari Devi had been killed. When he went to the place of occurrence he learnt that Appellant, Amarjit Rai and Lakhan Rai had committed the murder. However, he did not disclose the name from whom he learnt about the occurrence. The motive, of the occurrence was that people of the village got the landed property of the Appellant transferred in the name of the deceased. The Appellant had also taken Rs. 40,000/- and was pressing hard the deceased to execute registered deed in favour of Ram Lakhan Rai which she had refused. In cross-examination the witness stated that he learnt about all those things, however, he did not disclose the name of any person from whom he learnt. P.W. 9 is Mukhiya of the village. He is also a hearsay witnessl In para 11 of his evidence he has stated that there was no complaint from before against Amarjit and Dukharan. The witness stated that people were saying that Appellant and his two associates had killed the deceased. Therefore, from the evidence brought on the record it is evident that there is no legal evidence on the record except hearsay evidence. Hearsay evidence cannot be taken as substantive evidence and it can be used only for corroboration of evidence. It has been stated by P.Ws. 1 & 3 that the Appellant had taken Rs. 40,000/- and was pressing hard the deceased to register the document in favour of Ram Lakhan Rai but no document has been brought on the record to establish the said fact. The aforesaid evidence is also hearsay evidence as no one has come forward to say that in his presence anything has happened or the Appellant was seen at the relevant time in the village/house.

It has already been said that there is no eye witness to the occurrence and the case is based on circumstantial evidence. In the instant case circumstances are that deceased was wife of the Appellant, the Appellant was destroying the property and with a view to save the property the people of the village got the property of the Appellant transferred in the name of deceased. The Appellant took loan of Rs. 40,000/- and was pressing hard the deceased to execute a registered deed in favour of Ram Lakhan Rai. These circumstances are not sufficient to say that guilt against the Appellant has been proved. In the case of circumstantial evidence the chain of circumstances must be complete to establish the guilt beyond all reasonable doubts and the circumstances established must prove the guilt of the accused excluding all hypothesis of innocence. In the instant case there is no legal evidence on the record to show that Appellant was pressing hard the deceased for executing registered deed. There is no legal evidence on the record that the Appellant was seen in the village/house on the date of occurrence, rather evidence has come that Appellant was in Dance party. It has been stated by one of the witnesses that he learnt that the Appellant had come in the night but the said piece of evidence cannot be taken into consideration be cause it is not legal evidence as he himself had not seen the Appellant at the house on the date of occurrence. The circumstances which have been brought on the record, it can safely be said that those circumstances do not establish the guilt of the Appellant. Moreover, those circumstances are not complete to establish, the guilt of the Appellant. In a case of circumstantial evidence it is mandatory that all the circumstances must be put to the accused. In the instant case not a single circumstance has teen put to Appellant in the statement u/s 313 Code of Criminal Procedure. Therefore, these circumstances cannot be used against the appellate Putting such circumstance is necessary otherwise it will be fatal to the prosecuting.

Therefore, on consideration as discussed above we find no legal/circumstantial evidence to sustain the conviction and sentence of the Appellant awarded by the trial court. Accordingly, this appeal is allowed. The judgment of conviction and sentence of the trial court is set aside. The Appellant is in jail. He is directed to be released forthwith if not required in any other case.