Parsuram Yadav vs The State of Bihar

Rajendra Prasad & Rekha Kumari, JJ.—This criminal appeal is directed against the judgment and order dated 13.8.2001 of Shri Aditya Kumar Trivedi, Additional Sessions Judge VI, Begusarai, in Sessions Trial No. 146/95, whereby and whereunder learned Additional Sessions Judge found and held sole appellant Parsuram Yadav guilty for committing an offence punishable u/s 302 of the Penal Code and convicted and sentenced him thereunder to undergo imprisonment for life. The prosecution story as disclosed by informant chowkidar 13/10 Mushharu Paswan (P.W. 1), in his fardbeyan (Ext. 3), in short, is that at about 7 A.M. of 2.5.94 when he had gone to walk his area at Mansoorchak near Bhagwati Asthan, he heard many mohalla people talking that wife of Parsuram Yadav (appellant) died in the intervening night of 1/2.5.94. He also heard some people saying that wife or Parsuram (appellant) died of pain in her stomach. But some other talking that in the evening there had been quarrel between wife and husband and so she was killed by hanging. To know this, the informant (P.W. 1) went to the house of Parsuram (appellant) where he saw dead body of wife of Parsuram (appellant) lying at verandah of the house. The informant when asked as to cause of death of deceased the appellant told that she had died of sudden pain in her stomach. As per informant (P.W. 1) when he alongwith mohalla people saw the dead body they found black ligature mark around neck of deceased and also found swelling in the left palm of deceased. When informant enquired from neighbours they also told that Parsuram (appellant) had killed his wife by hanging. The statement of informant (P.W. 1) was recorded by S.I., S.K. Jha O/C Ballia P.S. at Chhoti Ballia on 2.5.94 at 9 A.M.

On the basis of fardbeyan of informant (P.W. 1) Baltia P.S. Case No. 71/94 was registered u/s 302 I.PC. and investigation of the case was taken up. Police after investigation submitted charge-sheet against the sole appellant u/s 302 I.P.C. Thereafter the case was committed to the court of sessions for trial and on completion of trial learned Additional Sessions Judge VI, Begusarai, found and held guilty the sole appellant u/s 302 I.P.C. and further convicted and sentenced him to undergo imprisonment for life, as stated in paragraph 1 of this judgment,

Defence, as it appears from trend of cross-examination and also statement of appellant recorded u/s 313 Cr. P.C. is of denial of occurrence and false implication. As per appellant he had gone to police station and was arrested at police station.

In order to prove and establish its case the prosecution examined as many as eight witnesses who are Mushahru Paswan (informant), P.W. 2 Nurul Hassan (Dafadar), P.W. 3 Nago Paswan (Chowkidar), P.W. 4 Suraj Paswan (Chowkidar), P.W. 5 Ram Murat Paswan (Chowkidar), P.W. 6 Dr. Prakash Nandan Singh (Doctor who performed post mortem examination on the dead body of deceased), P.W. 7 Shanti Devi (mother of deceased) and P.W. 8 Shyama Kant Jha (Investigating Officer). Besides, prosecution also brought on record signature of informant on fardbeyan (Ext. 1), post mortem report (Ext. 2), fardbeyan (Ext. 3), formal F.I.R. (Ext. 4) and inquest report (Ext. 5).

On a careful consideration of statements of witnesses examined by prosecution it is evident that PW. 1 Mushahru Paswan, a Chowkidar and informant of this case, P.W. 2 Nurul Hassan, Dafadar of that area, P.W. 3 Nago Paswan, another Chowkidar, P.W. 4 Suraj Paswan, another Chowkidar, P.W. 5 Ram Murat Paswan, another Chowkidar, are not the eye-witnesses to the actual occurrence of killing of deceased by the appellant and their statements are only to the extent that these witnesses heard that appellant had killed his wife by hanging and these witnesses had also seen dead body of the deceased at darwaja of the appellant. As prosecution did not examine any of such person who had informed these witnesses that appellant had killed deceased, the statements of these witnesses are reduced to be hearsay and so prove nothing P.W. 7 Shanti Devi who is none but mother of deceased, has also not supported the prosecution case and so has been declared hostile by the prosecution.

Out of remaining two prosecution witnesses P.W. 6 Dr. Prakash Nandan Singh is a doctor who had performed post mortem examination of the deceased and found the following ante mortem injuries on the body of deceased:

"Ligature mark round the neck at the level of hyoid castriscope and was not present at any side of the neck.

On dissection there was fracture of sternum and there was fracture of trachea. Blood and blood clots were present in trachea. Lungs were congested. Whole body including face was swallened. Tongue protrated. Gas ball were present over the body. Putrification started.

Time elapsed since death--24 to 72 hours.

Cause of death:--In my opinion due to asphyxia due to strangulation by the cord.

This post report is in my pen and bears my signature marked Ext. 2."

P.W. 8 Shyama Kant Jha is the Investigating Officer who stated that on 2.5.1994 he was posted at Ballia police station as Officer-in-charge. From the statement of this witness it appears that while he had gone to inspect the Ballia P.S. Case No. 159/94 he heard some rumour that in village Mansoorchak one woman had been murdered and to verify this rumour he rushed to Mansoorchak where he got fardbeyan of Musharhur Pawsan recorded. Then he took investigation of the case and inspected the place of occurrence. Further he arrested the accused, prepared inquest report and taken further statement of informant and on completion of investigation submitted chargesheet. There is nothing in his cross-examination so as to be taken into consideration.

Mr. Abul Kalam learned counsel for the appellant submits that out of eight witnesses examined by the prosecution P.Ws. 1 to 5, who are chowkidars and dafadar, are not eye-witnesses to the actual killing of deceased as they themselves have stated that all of them had heard that appellant had killed the deceased and that when these witnesses went to house of appellant they had seen dead body of deceased at darwaja of appellant. The contention of learned counsel for the appellant is that as all the witnesses have not seen the actual kitting but had only heard that the deceased, who was wife of appellant, was killed by appellant their statements are reduced hearsay evidences on the point of murder and are not admissible on the point of murder. Referring statement of P.W. 6, who is doctor and held post mortem examination on the dead body of deceased, learned counsel for the appellant pointed out that the doctor had found one ante mortem injury which if examined carefully may not indicate beyond doubt that the death was result of strangulation because in his cross-examination the doctor stated that no weapon had been used upon the dead body, presence of ligature mark did not confine its creation by means of cord. Referring medical evidence, learned counsel for the appellant contends that even if the statement of doctor, who held post mortem, is taken as it is, it does not establish that death was result of strangulation by a cord and even if this is also taken as it is that the death was established by strangulation with the help of a cord as ligature mark was found, such proof itself shall not further establish that appellant was the author of such murder. Learned counsel further contends that it is settled principles of law that the prosecution must prove and establish its case on its own evidence and, that too, beyond shadow of reasonable doubt and in this case there is no evidence either direct or indirect that it was appellant who had strangulated deceased and so it shall not be safe to come to a finding that appellant was author of the murder. As regards finding of learned court below, learned counsel for the appellant contended that the learned court below itself did not rely upon the direct evidences and so based conviction on circumstantial evidences only. The contention of learned counsel for the appellant is that the circumstance considered by the learned court below was only that the deceased was wife of the appellant and she was found dead at the darwaja of the appellant. The contention is that only this circumstance that deceased was wife of appellant and was found dead at his darwaja itself will not lead to a conclusion that it was appellant being husband had committed the murder. Learned counsel at this point also referred to statement of P.W. 7 who is none but mother of deceased and mother-in-law of appellant who also did not support the prosecution case and even being mother of deceased did not allege that her daughter was done to death by the appellant. The contention is that had this witness even slightest doubt that appellant committed murder of her daughter she, as mother, would not have left appellant unpunished.

As against this, Mr. Someshwar Dayal, learned A.P.P. for the State, contends that though there is no direct evidence to prove and establish the prosecution case there are such circumstances so as to complete the chain of events indicating that appellant committed murder in the manner as alleged.

Now we shall proceed to take into consideration the nature of evidences brought on record and see whether evidence brought on record prove and establish charges leveled against the appellant beyond shadow of reasonable doubt. It is evidently clear that out of eight witnesses examined by the prosecution, PWs. 1 to 5, who are Chowkidars and Dafadar, the lowest rank of police administration, were not eye-witnesses to the actual killing and so their statements cannot prove and establish that it was appellant who had committed murder of none but his wife. The prosecution also examined mother of deceased as P.W. 7 but she also had not supported the prosecution case and did not say that the appellant killed the deceased (her daughter). P.W. 6, who is doctor and performed post mortem examination on the dead body of deceased and P.W. 8, who is Investigating Officer, are not eye-witnesses to the actual killing of deceased. So, evidently the prosecution failed to prove and establish the charges leveled against the appellant. The learned trial court was also of the view that there was no direct evidence on record to prove and establish the prosecution case and the learned trial court based conviction on the basis of circumstantial evidence only. The learned trial court took into consideration three circumstances which are (a) dead body of deceased was seized from the house of accused, (b) the deceased died on account of ante mortem injury and (c) the accused Parsuram Yadav was apprehended from there and the learned trial court came to the conclusion that these three circumstances were so connected so as to indicate that it was appellant who had committed murder of deceased.

It is evidently clear from the impugned judgment and order of conviction that the learned trial court though found no direct evidence on record to prove and establish the prosecution case, learned trial court based conviction on the basis of circumstantial evidence which according to him were (1) dead body of deceased was seized from the house of accused (2) the deceased died on account of ante mortem injury and (3) the accused Parsuram Yadav was apprehended from there. It is settled principle of law that when a case rests upon circumstantial evidence alone to base conviction such evidence must satisfy that circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, such circumstances should be of a definite tendency unerringly pointing towards guilt of the accused, the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crimes was committed by the accused and none else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis that that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

We have already seen that there is no direct evidence on the point that it was appellant who committed murder in the manner as alleged and if we take into consideration the circumstances on which learned trial court based his conviction these circumstances do not appear to satisfy the tests mentioned in foregoing paragraph inasmuch as, the prosecution failed to prove and establish that it was appellant who had strangulated resulting death of deceased and such circumstances relied upon by the learned trial court may also lead to an inference that deceased was done to death by anyone else and dead body was left at the darwaja of appellant and even if this aspect is not accepted and it is accepted that it was appellant who committed murder of none but his wife doubt shall always persist in a prudent man''s mind as to whether the deceased was done to death by this appellant? and so it does not appear safe to rely upon the circumstances which do not satisfy the tests settled by law while basing conviction of circumstantial evidence alone.

On a careful consideration of evidences brought on record, arguments of both the learned counsel for the appellant and also learned A.P.P. appearing for the State, we are of the view that prosecution miserably failed to prove and establish the charges leveled against the appellant beyond shadow of reasonable doubt and so this appeal appears to have merit. In the result, this appeal is allowed, order of conviction and sentence against the appellant is set aside and the appellant is directed to be set free forthwith and since the appellant is in jail he is directed to be released forthwith if he is not wanting in any other case.