Gulabi Bai vs State of C.G.

Sunil Kumar Sinha, J.—This appeal is directed against the judgment of conviction and order of sentence dated 2.4.2003 passed by the Fourth Additional Sessions Judge (F.T.C.), Raigarh in Sessions Trial No. 12/2003, whereby, the Appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo R.I. for 15 days.

Appellant-Gulabi Bai was the wife of deceased-Nandlal. She was a vegetable vendor and the deceased was a rickshaw puller. They were residing in a rented room belonging to one Sundermani Dehri (PW-1). On 22.10.2002 at about 10.00 p.m., Sundermani heard some noise from the room of the deceased. She went towards his room and saw that the Appellant was attacking on the head of the deceased with a slab of stone (Siloti), commonly used in the house for grinding condiments with a muller. Blood was oozing out from the skull of the deceased. Sundermani Dehri (PW-1) immediately returned back to her house and stated all this to her son Mashihcharan. Thereafter, many neighbors gathered there and asked the Appellant as to why she assaulted her husband? The Appellant replied that since he has kept an another wife, therefore, she assaulted him. Nandlal died in the hospital on the same day.

The matter was reported to the concerned police station by Sundermani Dehri (PW-1) on 23.10.2002 through a merg intimation (Ex.-P/1), based on which, a First Information Report (Ex.-P/3) was registered. The Investigating Officer gave notice (Ex.-P/4) to the Panchas and prepared inquest (Ex.-P/5) on the body of the deceased. The dead body of the deceased was sent for its postmortem to K.G. Hospital, Raigarh by requisition Ex.-P/9, where the postmortem examination was conducted by Dr. V.K. Mehta (PW-8), who prepared his report Ex.-P/10. The Autopsy Surgeon noticed 5 external injuries on the skull of the deceased. On internal examination, he found clotted blood present beneath the skin of the skull, the brain membrane was reddish and huge amount of blood was present in the left portion of the brain. He opined that the injuries were antemortem in nature and were caused by hard and rough object and the cause of death was coma due to cranial hemorrhage caused by head injury and it was homicidal in nature.

In further investigation, after taking the Appellant into custody, her memorandum (Ex.-P/6) u/s 27 of the Evidence Act was recorded, and blood stained stone slab was seized at the instance of the Appellant under Ex.-P/7. Blood stained soil and plain soil were seized from the place of occurrence under Ex.-P/8 and the saree of the Appellant was seized under Ex.-P/11. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Raipur under Ex.-P/12 but the report from the laboratory could not be obtained.

After completion of usual investigation, the charge-sheet was filed in the Court of concerned Magistrate, who in turn committed the matter to the Court of Sessions Judge, Raigarh, from where, it was received on transfer by the Fourth Additional Sessions Judge (F.T.C), Raigarh, who conducted the trial and convicted and sentenced the accused/Appellant as aforementioned.

The conviction of the Appellant is based upon the sole testimony of P W-1, Sundermani Dehri, who claims to be an eye witness of the incident.

Ms. Minu Banerjee, learned Counsel for the Appellant, has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of Dr. V.K. Mehata (PW-8), as also in the postmortem report that the deceased sustained as many as 5 external injuries on his skull and he also sustained subdural and cranial hemorrhage caused by head injuries and the death was homicidal in nature. Therefore, it was established by the prosecution that the death of the deceased was homicidal in nature.

Ms. Minu Banerjee vehemently argued that the contents of the evidence of PW-1 would show that she has not seen the occurrence at all as she claimed in the F.I.R. and the merg intimation, therefore, she was an unreliable witness and the conviction based on her sole testimony, cannot be sustained.

On the other hand, Mr. U.N.S. Deo, learned Govt. Advocate for the State, opposed these arguments and supported the judgment and order passed by the trial Court.

We have heard the learned Counsel for the parties at length and have also perused the records of the sessions case.

PW-1, Sundermani Dehri, deposed in her court evidence "that at about 9-10.00 p.m. when she heard some noise from the room of the Appellant, she went there along with her son Mashihcharan. In the torch light, she saw that the deceased was lying on the pool of blood. He had sustained injuries on his temporal region. The Appellant was present there. When she said to the Appellant that she has killed the deceased, the Appellant did not reply to her. She was simply standing near the door. After this, she called the neighbours". She admitted the lodging of the merg intimation and the F.I.R. (Ex.-P/1 & P/3). She very specifically deposed that when she had gone to the room of the Appellant, the blood stained stone slab was lying there. If we look into the contents of the F.I.R. and the merg intimation given by this witness, it would appear that in both these documents she mentioned that she had seen the Appellant assaulting the deceased with the stone slab (Siloti) due to which the deceased has sustained injuries and has also mentioned that the Appellant made an extrajudicial confession before the neighbours about assaulting the deceased by her. But such things are missing in her court evidence. She was neither declared hostile by the prosecution nor she was cross examined by the Public Prosecutor on account of such contradiction made by her in her court evidence for the reasons best known to them. Although in the very first paragraph of her cross examination by the defence, she categorically admitted that "what the police has written in the merg intimation (Ex.-P/1) and the F.I.R. (Ex.-P/3), she does not know, but she had narrated to the police only those things which she has deposed in her court evidence on today".

Neither the contents of the F.I.R. nor that of the merg intimation are the substantive evidence and the conviction cannot be based on them. The F.I.R. is an information of a cognizable offence given u/s 154, Code of Criminal Procedure and any statement made therein can only be used for the purpose of corroborating or contradicting the maker of it.

In the instant case, PW-1, Sundermani Dehri, has never deposed that she saw the Appellant assaulting the deceased and by way of her court evidence, she has virtually denied to make such statements about the involvement of the Appellant even before the police either at the time of lodging of the merg intimation or the First Information Report. This not only proves that she has not witnessed the Appellant assaulting the deceased but also creates a doubt about the credibility of this witness even for other evidence which may go against the Appellant in this case. Therefore, the conviction based on the sole testimony of this witness cannot be sustained.

It was argued by the State Counsel that PW-1 stated that when she reached to the room of the Appellant, the Appellant was present inside the room and the deceased was lying there in injured condition and the Appellant did not give any explanation as to how the deceased sustained injuries. Firstly, we do not hold even such circumstance to be proved against the Appellant because the same has been tried to be proved on the evidence of PW-1 whom we have already held to be unreliable. Moreover, a plausible explanation has been given by the Appellant in answer to question No. 69 in the examination of accused that on the date of incident, she had taken liquor along with the deceased and both were sleeping in their room after taking their meals and she woke up only when Sundermani came to their house and then saw that her husband was lying dead. In the absence of any other material on record, this explanation appears to be plausible and in the facts and circumstances of the case a possibility of involvement of a third party cannot be fully ruled out in this case which makes the Appellant entitled to benefit of doubt.

Learned Counsel for the State then argued about the recovery of stone''s slab (Siloti) at the instance of the Appellant. The discovery made by the Appellant and the seizure of the stone''s slab on such discovery is also of no use to the prosecution. According to the evidence of PW-1, the said stone''s slab was lying near the deceased when she had visited the house of the Appellant. Therefore, there was no question of its discovery at the instance of the Appellant. That apart, no chemical examiner''s report could be produced in this matter which may connect the Appellant from crime in question on account of alleged recovery of a common house hold article made on her instance.

On the foregoing discussions, we are of the considered view that the Sessions Court erred in law in convicting the Appellant on such testimony of PW-1, Sundermani Dehri. Even otherwise also, there is no clinching, cogent and reliable evidence against the Appellant to hold her guilty for commission of offence of murder of her husband. Therefore, the conviction and sentences awarded to the Appellant deserve to be set aside.

Accordingly, the appeal is allowed. The conviction and sentences awarded to the Appellant are set aside. She is acquitted of the charges framed against her. It is stated that the Appellant is in jail since 23.10.2002. She be set at liberty, forthwith, if not required in any other case.