Manbodh Kr. Pradhan vs Kalpana Pradhan & Anr.

This criminal appeal is directed against the judgment of

conviction and order of sentence dated 05th June 2007, passed by Sri

Rajendra Kumar Jumnani, the learned XX th Additional Judicial Commissioner,

Ranchi in Session Trial No. 512 of 2004, arising out of Chanho P.S. Case No.

63/2004, corresponding to G.R. No. 2613 of 2004, whereby and whereunder,

the learned trial court having found the sole appellant guilty for committing

murder, convicted her for the offence punishable under Section 302 of the

Indian Penal Code and sentenced her to undergo imprisonment for life and to

pay a fine of Rs.2000/-. In default of payment of fine, she was further directed

to undergo one month imprisonment.

The prosecution case is based upon the fardbeyan of one

Sunder Devi (P.W.3). She stated that she along with her husband and four

children were residing in a house situated in village Choreya. It is also stated

that she resides with her agnates having a common courtyard. On the day of

Sawan Purnima, Basanti Devi @ Guriya, the daughter in-law of her agnate,

Banwari Ram had alleged that Rani Kumari, the daughter of the informant had

committed theft of slippers and jaggery. After such allegation, the relationship

between the informant and said Basanti Devi @ Guriya turned sour. On

2.9.2004, the informant and her husband had left their house for earning,

leaving their small children in the custody of their eldest daughter. Her six

years old son had gone to school. In the evening when the informant was

returning to her house, one child of the village informed her that her daughter

is missing and everyone is searching her. The informant became nervous and

rushed to her house. Her elder daughter, Rani informed her that the accused

Guriya Bhabhi snatched her younger daughter Rina from her lap and

assaulted her with cow dung cake. Thereafter on hearing that, the informant

started crying and searched her daughter. In course of such search, Rina was

found in the room of the accused-appellant, Basanti Devi and her husband-

Mukesh Ram, in dead condition. The door of the room was also closed. It is

stated in the FIR that the accused snatched the girl and committed murder by

throttling her neck and thereafter left the house.

On the basis of the aforesaid information, Chanho P.S. Case No.

63/2004 dated 3.9.2004 was registered for the offence under Sections 302 and

201 of the Indian Penal Code.

After completion of investigation, the Investigating Officer

submitted chargesheet against the appellant under Sections 302 and 201 IPC.

The case was committed to the Court of Session. Charges were framed under

Sections 302 and 201 IPC against the sole accused, which was read over and

explained to her, but the accused pleaded innocence and claimed to be tried.

The prosecution, to prove its case, has examined altogether

following seven witnesses:-

P.W.1- Dinesh Ram, independent witness. 2. P.W.2- Vijay Ram, the father of the deceased. 3. P.W.3- Sunder Devi, the mother of the deceased and the informant of this case. 4. P.W.4- Rajendra Ram, independent witness. 5. P.W.5- Dr. Ajit Kumar Choudhary, who conducted the autopsy. 6. P.W.6- Ram Chandra Choudhary, the 2nd Investigating Officer. 7. P.W.7- Rani Kumari- Sister of the deceased and the eye witness of the occurrence. 5. Apart from the oral evidences, certain documentary evidences

were also proved and were marked as Exhibits, which are as follows:-

Ext.1- Inquest Report 2. Ext.2- First Information Report. 3. Ext.3- Postmortem Report of the deceased.

After closure of the evidence of the prosecution, the statement

of the appellant was recorded under Section 313 Cr.P.C. The defence did not

produce any witness.

The trial court, after hearing the arguments on behalf of the

parties and after going through the materials available on record, vide

judgment dated 05.06.2007, convicted the appellant for the offence under

Section 302 IPC and acquitted her for the offence under Section 201 IPC and

sentenced the appellant to undergo imprisonment for life with a fine of

Rs.2000/-.

Challenging the said judgment of conviction and order of

sentence dated 05.06.2006, the appellant has preferred this appeal.

we have heard the learned counsel appearing for the appellant

and the learned Addl. P.P. we have also scanned the evidences and gone

through the lower court records.

The counsel appearing for the appellant submits that the entire

case is based upon the evidence of child witness. Save and except the child

witness, there are no other witnesses to support the case of the prosecution.

He further submits that the evidence of child witness cannot be considered as

reliable because there are material contradictions in her evidence. It is further

stated that there is no eye witness to the said occurrence and the motive is

also not proved as to why the child would be killed. It is further stated that the

FIR suggests a motive but the child witness (P.W.7) narrated another story

which clearly casts a serious doubt in the case of the prosecution. It is further

stated that even the place where the dead body was recovered has not been

proved, which is clear from the evidence, led by the prosecution. The counsel

for the appellant submits that overall contradictions are such that it strikes at

the root of the case and therefore, the conviction of the appellant is absolutely

bad.

On the contrary, the learned Addl. P.P. submits that the

conviction of the appellant is absolutely justified, which needs no interference

by this Court in view of the evidences produced by the prosecution. It is further

submitted that the witnesses have in unequivocal terms stated that the child

(deceased) was taken from the custody of P.W.7 and thereafter she was taken

inside the room and the accused-appellant left the room. On search, the dead

body of the deceased was found inside the room of the accused-appellant. It is

submitted that though there is no eye witness in this case but the chain of

circumstances clearly suggest that the appellant has committed the crime. It is

lastly submitted that this appeal needs to be dismissed.

In this case, as mentioned earlier, there are 07 prosecution

witnesses who have been examined.

P.W.1- Dinesh Ram:- This witness deposed that when he was returning to

the village, he came to know that in the house of Banwari Ram, the daughter

of Vijay Ram was lying dead. He also stated that the Inquest Report was

prepared by the police and he is a signatory to the same. His signature was

marked as Ext.-1. He also identified the signature of one Rajendra Ram,

which is marked as Ext.1/1. He denies having any personal knowledge of the

occurrence.

P.W.2- Vijay Ram: This witness is the father of the deceased. He deposed

that after returning from work, he came to know that his daughter Rina is

dead. On search, the dead body of the deceased was recovered from the

house of Mukesh. He also deposed that he has seen the dead body of the

deceased and the tongue of deceased was protruded. He stated that his wife

has informed the police. He also stated that he has no knowledge as to who

and why his daughter was killed. He deposed that the police has never

recorded his statement.

P.W.3- Sunder Devi: This witness is the mother of the deceased and the

informant. She deposed that she has one son and three daughters. She

stated that the accused had alleged that her daughter Rani had stolen slippers

and jaggery, resulting a quarrel amongst them. She deposed that she went to

work and while she was returning, one child of the village informed that her

daughter is missing. When she came to the house, her daughter Rani told her

that the appellant had taken her sister Rina. She further stated that the dead

body of her daughter- Rina was lying in the courtyard of the house. She

further deposed that Basanti was not present there. She stated that she has

given her statement before the police and the I.O. had also come for

investigation and the dead body was taken by the police. She stated that she

is not aware as to how, her daughter died. She stated that when she was

retuning, no one was there in her house. Nothing more has been extracted

from her in cross-examination by the defence.

P.W.4- Rajendra Ram: He stated that when he was returning then he came

to know that Rina Kumari died and the dead body was lying in the courtyard.

He had seen the dead body and found that the tongue of the deceased was

protruded and there was black mark on the neck. He stated that from the

villagers, he came to know that the appellant had snatched the deceased. He

also stated that he heard that there was some dispute and differences

between the appellant and the informant in respect of stealing of slippers and

jaggery. He also confirmed that the police prepared the Inquest Report and

he put his signature on it and the same was marked as Ext. 1/ 2. He further

deposed that he does not have any personal knowledge about the

occurrence.

P.W.5- Dr. Ajit Kumar Choudhary has conducted the postmortem of the

deceased. He found the following injuries on the dead body of the deceased:-

Abrasion

(I) 1 1/2 and 1 c.m. Left side mandibular region, and

(II) 1/2 X 1/4 cm. and 1/2 x 1/2 cm. On right side of forehead.

Internal There was contusion of right fronto Parito temporal and occipital scalp. There was contusion of soft tissues front part of chest- wall on both sides and diffused contusion of soft tissues of fronto lateral neck of both sides and the thymus gland both the lungs were congested and the internal organs were also congested.

He opined that all the injuries are antemortem and caused by hard

and blunt substance. The death was due to asphyxia as a result of pressure

over the neck and chest. He proved the postmortem report as Ext.-3. He has

mentioned that there was no finger print over the neck and chest.

P.W.6- Ram Chandra Choudhary: This witness was posted at the time of

incident at Chanho Police Station. He stated that he had taken over the

investigation on 6.3.2004 from the earlier Investigating Officer. He stated that

all the witnesses had already been examined before he took charge. He only

received the postmortem report and thereafter on the basis of the

investigation, already made and recorded in the case diary, he had submitted

the chargesheet. He also proved the FIR, which is marked as Ext.-2. He

admitted that he has not recorded the statement of any of the witnesses.

P.W.7- Rani Kumari: This witness is the child witness. The court, having been

satisfied that she is competent enough to depose, recorded her deposition.

She stated that she was in her house and her younger sister Rina was sitting

besides her and was eating radish. She stated that the appellant came and

took her sister in the room. The appellant locked the door of the room from

inside. Thereafter, the appellant, opened the door and came out. The

appellant had put vermilion on her head and Kajal on her eyes, and left for

colony where she was constructing her house after putting latch on the door

from outside. She further stated that the father-in-law of the appellant,

Banwari Ram came and then this witness narrated to him the whole story.

Banwari went inside the room by opening the door and brought Rina (the

deceased) out. Rina was already dead. Banwari gave the dead body of Rina

to this witness. The villagers reached the place of occurrence and this witness

told them that Basanti (appellant) had throttled the deceased. She further

stated that there was a quarrel between her mother and this appellant. She

states that the reason of such dispute was that the appellant had given

Rs.500/- to her mother and asked her to cut wood with her but her mother

refused and did not accompany the appellant. She stated that she has

narrated everything to the police what she has stated before the court and the

same has also been narrated to her mother, repeating her statement that her

sister (the deceased) was sitting besides her and was eating radish.

From the evidences what have been led by the prosecution,

we find that save and except P.W. 7, none of the witnesses have stated as to

how the deceased child was killed and who killed her. All the witnesses

including the father and mother of the deceased have stated that they did not

have any personal knowledge as to how the deceased was killed. The mother of the deceased (P.W.3) has stated that P.W.7 (child witness and her

daughter) had narrated before her that this appellant had snatched the

deceased (her daughter) from her lap and went inside the room and

thereafter she was found dead. In the FIR and in her deposition, this witness

(P.W.3) clearly gives the motive of committing such crime. She also stated

that she was in inimical terms with the appellant because this appellant had

leveled allegation that her child committed theft of slippers and jaggery.

The only witness to the occurrence now is P.W.7, who is a

child witness, aged about 10 years on the date of examination and 7 1/2 -8

years when the occurrence took place. She says that she was sitting in the

courtyard and her younger sister (the deceased) was also sitting besides her

and was eating radish. She stated that then the appellant came and took her

younger daughter inside her room and locked the room from inside.

Thereafter, this appellant came out and left the place. Thereafter, the father-

in-law of this appellant, hearing the fact from this witness entered into the

room and found the dead body of the child and handed over the same to this

girl. This girl stated that there was dispute and differences between the

appellant and her mother but so far as the reason for such dispute, she gives

absolutely a different story from the narration of P.W.3 in her deposition or in

the FIR. P.W.7 repeats that her younger sister (the deceased) was sitting

besides her and was eating radish when she was taken by the appellant

inside the room.

Thus, from the evidence of this child witness(P.W7),we find that

she has came up with different story and reasons behind the occurrence. Her

mother narrated a different story whereas this girl (P.W.7) narrated something

else. Thus, the prosecution has failed to prove the motive in this case. The

motive gains significance in this case because there is no eye witness to the

occurrence and admittedly no one had seen commission of murder of the

deceased. However, from the FIR, it is clear that the deceased was taken

away from the lap of P.W.7, whereas, PW.7 herself stated that the deceased

was sitting besides her and was eating radish when the appellant had taken

her. Another question which arises in this case, is that from where the dead

body was recovered. The I.O. in the Inquest Report has mentioned that the

dead body of the deceased was recovered from the room of Mukesh Ram,

son of Banwari Ram i.e. the house of this appellant. As per the evidence of

other witnesses, i.e. P.W. 3, the informant, P.W.4-Rajendra Ram, it is crystal

clear that the dead body was lying in the courtyard. P.W. 7 has also stated

that the dead body was taken out from the room and was handed over to this

witness by Banwari Ram. This suggests that the prosecution is not sure from

where the dead body of the deceased was recovered. In this case, the I.O.,

who has investigated the case, has not been examined. Thus, this vital

contradiction could not be put to the I.O. by the defence. Thus, the defence is

prejudiced. Further the said Banwari Ram, who could have been a credible

witness to the occurrence, has not been examined by the prosecution.

Thus, we find that there is an element of serious doubt in the

entire case of the prosecution as the prosecution could not prove the motive

of the murder of the deceased beyond all reasonable doubt nor could prove

the place, from where the dead body of the deceased child was recovered.

Further, non-examination of the Police Officer who investigated the case has

caused prejudice to the defence.

Thus, from the cumulative effect of what has been discussed

above, we find that the appellant is entitled to get the benefit of doubt in this

case. Therefore, it can be held that the prosecution has failed to prove the

guilt of the appellant beyond all reasonable doubt.

In the result, this appeal is allowed by setting aside the

judgment of conviction and order of sentence dated 5th June, 2007 passed by

Sri Rajendra Kumar Jumnani, the learned XXth Additional Judicial

Commissioner, Ranchi in Session Trial No. 512 of 2004 and the appellant is

acquitted of the charges. The appellant, who is also in custody, be released

forthwith, if she is not wanted in any other case.

Let the Lower Court Records be sent back to the Court

concerned forthwith, along with a copy of this judgment.