Narayan Prasad Singh and Others vs The State of Bihar

Gopal Prasad, J.—The Appellants have been convicted under Sections 302 read with Section(s) 149, 120-B Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life with a fine of Rs. 5,000/- each. They have also been convicted under Section(s) 201 and 511 Indian Penal Code and sentenced to undergo rigorous imprisonment for 3 1/2 years and in case of non-payment of fine they have to undergo simple imprisonment for six months each by judgment and order of conviction dated 25.09.2010 and 29.09.2010 respectively passed by the 1st Additional Sessions Judge, Saharsa, in Sessions Trial No. 144 of 2008 arising out of Bihra P.S. Case No. 164 of 2007.

The prosecution case as alleged in the First Information Report by the Informant, Ram Sewak Singh, is that marriage of his daughter was solemnized in the year 1992 with Pawan Singh and a son, namely, Satyam, aged about ten years, was born out of the wedlock. Further case is that after the marriage there was good relation between them but three years back his son-in-law, Pawan Singh, in collusion with his parents, brother and Bhabhi solemnized second marriage and thereafter parents of his son-in-law, his brother and Bhabhi in collusion with second wife started abusing and assaulting the daughter of the Informant and they conspired to kill her. Being vexed with such cruelty, the Informant took the victim to his house at Saharia and there the victim, Prabha Devi, and his son were kept. Further case is that about fifteen days prior to the occurrence the daughter of the Informant Prabha Devi came to the Sasural at village Sihoul and on 12.12.2007 the daughter of the Informant informed on telephone that her husband/Dewar/Gotani/father-in-law/mother-in-law are conspiring to kill her in collusion with the second wife of Pawan Singh. On this information, the Informant proceeded to the Sasural of his daughter on 13.12.2007. While he was in the way, he got telephonic information that the victim has been done to death by burning and they have gone to perform her last rites along with 10-15 persons on a tractor.

The police make out search of the dead body and reached Dhamra river and there he found half burnt body from the bank of the river and brought the body to the hospital where his daughter died and it is claimed that the victim has been done to death by the accused persons.

The fard-e-bayan of the Informant was recorded by S.I. Nirmal Kumar (PW 17) on that basis First Information Report was lodged and investigation proceeded. During investigation, theory of dying declaration developed alleged to have been given before the police. The police after investigation submitted charge-sheet. Cognizance was taken in the case and the case was committed to the Court of Sessions for trial.

During trial seventeen witnesses were examined on behalf of the prosecution and five witnesses were examined on behalf of the defence and after considering the evidence of the witnesses, the Trial Court convicted the Appellants and sentenced them in the manner as mentioned above.

Learned counsel for the Appellants contended that seventeen witnesses have been examined in the case. PWs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 are either hostile/tender or formal in nature. PW 13 is the Doctor, who conducted Post Mortem Examination. PW 15, Ram Sevak Singh, is the Informant. PW 14, Manoj Kumar Singh and PW 16, Ganesh Prasad Singh, are sons of the Informant, are not the eye witnesses. PW 17, Nirmal Kumar, is the Investigating Officer, and the case is of no evidence.

On going through the evidence and submissions made on behalf of the Appellants, it is apparent that PWs 1, 2, 3, 5, 7 and 12 are hostile witnesses, PWs 4 and 11 are formal witnesses, PWs 6, 9 and 11 are tendered.

PW 8, Randhir Kumar Chand, is hear say, who has deposed that on halla he went to the place of occurrence and it was learnt that the victim died while cooking food.

PW 11, Dashrath Kamath, is a seizure list witness and stated that he signed on a plain paper.

PW13, Dr. A.K. Ojha, is the Doctor, who has conducted autopsy.

PW 15, Ram Sevak Singh, is the Informant and he has stated that his daughter telephoned that the accused persons are conspiring to kill her on 12th. Thereafter, he proceeded on 13th along with his two sons and while he was in the way he was informed that his daughter has been done to death and the accused persons were taking his daughter on the tractor to perform the last rites. He has not disclosed the name of the person, who telephoned him, but has only stated that the person, who telephoned him also give phone number of the Dy.S.P. He further stated that the Officer-in-Charge found a burnt dead body. He further deposed that he reached Saharsa Hospital and went near his daughter, who was breathing and when he asked his daughter about occurrence, she disclosed that Pawan Singh, Amar Singh, Narayan Singh, Gita Devi, Rinku Devi and Rekha Devi in conspiracy with each other along with 14-15 others assaulted her.

Similar is the statement of PW 14, Manoj Kumar Singh, and PW 16, Ganesh Prasad Singh. Hence, PWs 14, 15 and 16 are not eye witnesses to the occurrence and their evidences are only to the effect that the victim disclosed that the accused persons are conspiring.

PW 17, Nirmal Kumar, is the Investigating Officer of the case, who stated that on 13.12.2007, he got information on telephone about some untoward incident in the house of Narayan Singh and for verification of the said information a Sanha entry was made and he proceeded from the Police Station. He has proved the Sanha entry marked as Ext.1/6. He has stated that he reached the house of Narayan Singh, but did not find any female or male member in the house. The courtyard was found to be fully washed then he reached on the road where he found crowd of male and female. It was learnt that Parbha Devi has been done to death and loaded on the tractor and then taken to the river. Thereafter he (Investigating Officer) reached at the bank of river and it was learnt that the dead body has been taken across the river and then he crossed the river and found a dead body of a lady. It is deposed by Investigating Officer that Prabha Devi was crying for water and then he took advice from Doctor on his official mobile and the Doctor advised to give her water and then water was given to Prabha Devi and on enquiry from Prabha Devi, she disclosed the name of the accused persons and said the family members of his Sasural and relation as well as neighbours have done her to death and thereafter she became unconscious. She was taken to Sadar Hospital, Saharsa and in the Sadar Hospital the doctor disclosed that the victim is already dead while she was taken to the hospital in the Jeep.

Hence, taking into consideration entire evidence, we find that there is no eye witness to the occurrence. The marriage was solemnized in 1992 and occurrence took place in 2007. The only evidence is that the Informant one day prior to occurrence received a call of the victim that her in-laws are conspiring to kill her in collusion with second wife. Hence, the case hinges on circumstantial evidence. There is no evidence as to who assaulted, what is the manner of assault. The Informant in First Information Report has not whispered a word regarding the dying declaration or about any disclosure of the cause of death by the deceased but prosecution has developed a case of dying declaration that victim disclosed that the accused persons or Sasural people and neighbour have done her to death. The entire case hinges only on dying declaration of the victim said to have been made by the victim before the Informant (PW 15) as well as PW 14, 16 and 17 (Investigating Officer). However, fard-e-bayan was recorded after death of victim but there is no whisper whatsoever in the fard-e-bayan when case was made out that statement was given by the victim before the Informant and Police Officer. Hence, in view of the fact that there is no mention of dying declaration in the First Information Report which has been drawn on the basis of fard-e-bayan of the Informant, story of dying declaration appears to be doubtful and does not inspire confidence. There is neither any eye witness nor any evidence even of circumstantial in nature to form a chain of circumstances to point the guilt of the accused to record conviction.

Question for consideration is that whether the Appellants can be convicted under Section 302 Indian Penal Code on the basis of alleged sole dying declaration given by the victim before the Informant and the Investigating Officer as they have deposed in the evidence.

The case has been instituted on the basis of the fard-e-bayan of the Informant. In the fard-e-bayan, there is no mention of any dying declaration and apparently this dying declaration has been developed during investigation as well as at the trial.

PW 13, Dr. A.K. Ojha, conducted Post Mortem Examination on 13.12.2007 at 3.45 PM and found following ante mortem injuries.

"Superficial burn whole of the body. Total burn hundred percent.

On dissection, following were found: Both lungs congested. All chambers of heart full. Meninges, Spleen, Liver, Kidney congested. Bladder empty. Large and small intestine containing gas and faecal matter. Trachea congested with carbon particles on its wall, stomach containing partially digested food. Cause of death was opined that it was because of neurogenic shock due to burn by dry heat. Time elapsed since death was within twelve hours".

As per the evidence of the Doctor, Post Mortem Examination was conducted on 13.12.2007 at 3.45 PM, time elapsed since death is within 12 hours and the fard-e-bayan was recorded at 1.30 PM on 13.12.2007. Taking into consideration the nature of injury and the cause of death, it is highly improbable to believe PW 15 and 17 regarding the dying declaration allegedly made by the victim before them.

In the evidence of the Doctor, it is stated that the victim was taken to the hospital where he was declared dead by the Doctor. However, there is no evidence in this regard that any dying declaration has been made except the Post Mortem Examination Report. Since there is no mention of any dying declaration in the fard-e-bayan, no reliance can be placed on the same. In the facts and circumstances of the case and in the nature of injuries, such dying declaration is neither probable nor conviction can be recorded on such dying declaration when there is no specific evidence that what the victim had disclosed in her own words. The language of alleged dying declaration is absolutely vague, general and omnibus. The statement is that the family members and the neighbours have killed her. There is no specific disclosure in the dying declaration as to what role was played by the Appellants and it is not safe to place any reliance on such dying declaration. There is no cogent evidence and it appears to be a case of no evidence.

In the facts and circumstances of the case, there is no direct evidence. The circumstantial evidence is only to the effect that the victim telephoned that the accused persons are conspiring. Hence, there is neither direct nor a chain of circumstantial evidence so as to conclude an irresistible conclusion that the Appellants have only killed and none others. The evidence of dying declaration suffers from contradiction as there is no whisper in the fard-e-bayan regarding any dying declaration. The Investigating Officer stated that he consulted a Doctor to give water to the victim and on advice of the Doctor, water was given to the victim which enabled the victim to spoke out or give dying declaration but neither the name of the doctor was mentioned nor his evidence was recorded to corroborate the evidence of the Investigating Officer. Thus, we are of the opinion that no reliance can be placed on the prosecution witnesses and the Appellants deserve to be acquitted.

Accordingly, the Appellants are acquitted of their respective charges and the judgment and order of conviction dated 25.09.2010 and 29.09.2010 respectively passed by the 1st Additional Sessions Judge, Saharsa, in Sessions Trial No. 144 of 2008 arising out of Bihra P.S. Case No. 164 of 2007 is hereby set aside.

Appellants Nos. 1, 2, and 3, namely, Narayan Prasad Singh, Pawan Singh @ Pawan Kumar Singh and Amar Kumar Singh, who are in custody, are directed to be released forthwith, if not required in any other case. Rest of the Appellants i.e. Appellant Nos. 4, 5 and 6, namely, Gita Devi, Rekha Devi and Rinku Devi, are on bail. They are discharged from the liabilities of their respective bail bonds.

In the result, the appeal is allowed.