Ram Chandra Sao and Another vs The State of Bihar

Dharmpal Sinha, J.—This appeal is directed against the judgment and order dated 21.12. 1987 passed by Shri Amir Das, Sessions Judge, Giridih, in Sessions Trial No. 50 of 1985 convicting the Appellants of the offences punishable under Sections 302 and 201 read with Section 34 of Indian Penal Code and sentencing each of them to undergo imprisonment for life under the former offence and for the latter offence, to undergo rigorous imprisonment for five years with a direction that both the sentences shall run concurrently.

The case was instituted on the basis of the Fard-beyan (Ext. 5) recorded on the statement of one Babulal Sah (P.W. 5) on 22.8.1984 at 10.30 A.M. The case of the prosecution, as disclosed from the Fard-beyan is that the informant''s daughter Asho Devi had been married to Appellant No. 1 Ram Chandra Sao who is the son of Appellant No. 2 Girja Sao about two years before the case was instituted and about three months before that date Asho Devi had been brought by Appellant No. 1 to his house situated in village Kharagdiha, P.S. Jamua. About one month before the occurrence, the informant had gone to see his daughter, Asho Devi, in the house of the Appellants and at that time his daughter, Asho Devi, (the deceased) had told the informant that about eight days before, Appellant No. 2 had caught hold of her arms with bad intention when she had gone into a room to bring the string of bullock according to the direction of her father-in-law (Appellant No. 2). At that time her husband (Appellant No. 1) was not in the house. Asho Devi had then suddenly come out when her father-in-law had made that gesture and she told the ladies of the neighbourhood about the incident. A punchyaiti was also called at that time in relation to that incident and the punches made arrangement so that Asho Devi with her husband may live separate from the father-in-law. On 20.2.1984 at about 2 PM Appellant No. 1 went to the informant, and informed that his wife, Asho Devi, had disappeared since the morning of 19.2.1984, which was a Sunday and he made enquiry from the informant as to whether she had come to his house. On this information the informant, his son along with Appellant No. 1 went to village Khagardiha on the following day, i.e. on 21.2.1984 and made enquiries to ascertain the whereabout of his daughter but nothing could be found out. Then he went to the police station and lodged an information about disappearing of his daughter. On the morning on the following day, i.e. on 22.2.1984 the dead body of his daughter was located in the well of Basant Sao when probing was done in the well by means of a Jhaggar (an instrument consisting of a bunch of iron hooks). The body was identified when it was seen on the surface of the water in the well. The informant then felt convinced that the Appellants had killed his daughter because of house-hold bickerings and thrown the dead body into the well. When the police Officer reached the village at about 10.20 AM the dead body was still in the well. The informant gave statement which was recorded as Fard-beyan (Ext. 5). The formal FIR (Ext. 6) was drawn up on the basis of the Fard-beyan and the police officer took up investigation and eventually submitted chargesheet. Both the Appellants were charged for the offences punishable u/s 302 read with Section 34 of Indian Penal Code and Section 201 read with Section 34 of Indian Penal Code.

The defence of the Appellants was denial of the allegations that they had no hand in killing the deceased or throwing her dead body into the well.

During the course of trial, in all nine witnesses had been examined by the prosecution. P.W. 1, Dr. L.P. Singh, is Civil Assistant Surgeon, Sadar Hospital, Giridih, who deposed about conducting the postmortem examination over the dead body of Asho Devi on 22.2.1984 and preparing the postmortem report (Ext. 1). P.W. 2 is one Kanhai Sao the Mukhiya of the village. He deposed about recovery of the dead body of Asho Devi from the well of Basant Sao on 22.2.1984. He, however, denied that he had seen any injury on the dead body. He was declared hostile because of that fact that before the police Officer, he had stated, during investigation, that he had seen swelling on the neck of the dead body and injury on the head and bleeding from the mouth. He denied about the recovery of blood-stained cloth and blood-stained earth from the house of the Appellants though he admitted to have put his signature (Ext. 2) on the seizure list prepared about recovery of blood stained earth and blood stained shawl from the house of the Appellants. He, however, admitted that the police Sub-Inspector had inspected the dead body in his presence and prepared the inquest report (Ext. 3) on which this witness also put his signature. Although this witness had been declared hostile but it appears that his evidence on the point of recovery of the dead body from the well of Basant Sao and about holding of inquest and preparation of inquest report (Ext. 3) by the police Sub-Inspector is acceptable and believable and no cross-examination had been done relating to these facts.

P.W. 3 is one Amanat Ali, who was the Sarpanch of the village since 1971. He has also deposed that the dead body of Asho Devi, daughter-in-law of Appellant No. 2, had been recovered from the well of Basant Sao on 22.2.1984. He had stated that he had seen injuries on the head of the dead body and swelling in the neck. The mouth, according to him, was closed and the teeth had been close set. He has also deposed about preparation of inquest report, after inspection of the dead body, by the police Sub-Inspector and this witness also put his signature on the seizure list relating to blood stained shawl and blood stained earth, but he stated that he reached there late and the recovery was not made in his presence. He was declared hostile and his attention was drawn to his previous statement made before the police, for he stated before the police regarding seizure of blood stained shawl and earth from the room of Appellant No. 1 in presence of this witness. His evidence regarding recovery of the dead body and about holding of inquest and preparation of inquest report by the police officer is quite consistent with the evidence of P.W. 2 and is acceptable.

P.W. 4 is one Biltoo Sao. He deposed about calling of punchaiti in his village about two years back relating to quarrel between Asho Devi and the Appellants. His evidence shows that twelve persons of his caste had participated in the punchaiti and this witness was one of them though he stated that he reached when Punches had already taken the decision and award had already been written on a paper. This witness has stated that after perusing the award and after understanding its contents he put his signature on that award (Ext. 4) which had been written by one Hari Lal. His cross-examination shows that by that award both the Appellants had been separated and Appellant No. 1 was to live with his wife and all the utensils etc. had also been partitioned. This witness had stated that the sister of Asho Devi had been married to the son of this witness. His evidence so far as it relates to the holding of Punchaiti and giving of the award (Ext. 4) by the punches seems to be acceptable and there is no suggestion even that no punchaiti was held and/or no award was given nor any cross-examination had been directed to demolish the aforesaid facts deposed to by this witness. In their statement both the Appellants, during course of examinations under Sections 313 of the Code of Criminal Procedure also admitted these facts.

P.W. 5, as already indicated above, is the informant and he has fully supported the story given in the Fard-beyan (Ext. 5) as already referred to above in paragraph 2 of this judgment. He deposed about the marriage of his daughter with Ram Chandra Sao (Appellant No. 1). He stated about learning from Asho Devi about the fact of catching hold of arms of Asho Devi by Appellant No. 2 with bad intention, about holding of punchaiti and decision thereof. He also stated that his son-in-law came and informed about disappearance of Asho Devi since Sunday and about making of search for her with his son-in law and his son by going to Kharagdiha. He also deposed about the lodging of the information at the police station when his daughter was not traced out on that date. Further he deposed, about finding out on further search on the following day of the dead body in the well of Basant Sao. In all these aspects, the evidence before the Court is quite consistent with what he has stated in his Fard-beyan and the contents of the Fard-beyan go to corroborate his evidence before the Court. His further evidence before the Court is to the effect that when the dead body was brought out he saw that a Jhaggar with ten-feet rope is entangled with the locks of hair of the dead body. He further stated that there were signs of injury on the head and there was blood in her mouth and swelling in the neck. He stated to have given the statement which was recorded as Fard-beyan on which he put his signature. He further stated that from a look of the dead body and from the fact that a Jhaggar with rope had been found with it, he got the impression that his daughter had been killed and the dead body had been dropped into the well with the help of the Jhaggar. He has shortly been cross-examined but the cross-examination is not directed against any of the aforesaid facts which he deposed.

P.W. 6 is one Champa Devi, a sister of the deceased and P.W. 7 is the brother of the deceased. Their evidence indicates that Appellant No. 1 had gone to their house and informed that his wife Asho Devi had disappeared and thereafter some search had been made by the informant jointly by his son and Appellant No. 1 also. P.W. 7 has also disclosed about recovery of the dead body from the well of Basant Sao.

P.W. 8, Barunesh Kumar Dubey, is the Investigating Officer who had investigated into the case. He stated to have recorded the Fard-beyan (Ext. 5) on the basis of which the formal first information report (Ext. 6) was drawn up. He stated to have held inquest on the dead body and prepared the inquest report (Ext. 3). He deposed that on inspection of the dead body he found that blood was coming out of the mouth and there was bleeding injury on the head and swelling of the neck and teeth were also close-set together. He has further deposed about having recorded Station diary Entry No. 438 dated 21.2.1984 on the basis of written information given on that day by the informant and he stated to have gone to village Kharagdiha on some confidential information where he had seen the dead body in the well which was taken out. He also deposed that there was Jhaggar with string of about ten feet and that Jhaggar was different from that Jhaggar by means of which the dead body bad been taken out. The Jhaggar with the dead body was found entangled with the locks of the hair. This witness also deposed about recovery of blood stained shawl and blood stained earth from the room of the Appellants house and about preparation of seizure list with regard to the same. Later he also stated to have recovered one Dherha. The fact of recovery of Dherha or blood stained shawl or blood stained earth does not seem to be of any value because they do not appear to constitute a circumstance pointing out towards the guilt of the accused and the learned trial Court also has not taken the same into account in arriving the finding of conviction.

P.W. 9 Chandra Shekhar Singh is a Writer Constable who has only formally proved the Station diary entry No. 438 dated 21.2.1984 (Ext. 8).

After considering the evidence, the learned trial Court came to the conclusion that some facts and circumstances were established by the evidence on record. The circumstances were that the deceased was living in her in-laws'' house all along at the relevant time of occurrence, that the relation between the deceased and her father-in-law Girja Sao (Appelant No. 2) was strained because the latter had made a gesture of catching hold of Asho Devi with bad intention, that the death of the deceased was homicidal (not suicidal), and, after killing her, the dead body had been dropped into the well with the help of a Jhaggar and that no information was given regarding the death of the deceased by the Appellants. According to the trial Court, these circumstances only go to show that the Appellants had committed the murder of Asho Devi and they had dropped the dead body into the well.

Learned lawyer for the Appellants has contended that the finding of the learned trial Court that in the house of the Appellants no other person was living except the two Appellants and the victim is not correct because there is evidence on record of P.W. 4 in paragraph 4 that the mother of the Appellant No. 1, an old lady, also used to live in the same house. He has further contended that finding of the learned trial Court that no information was lodged by the Appellants about disappearing of the victim is also wrong because it is quite clear from the evidence of the informant as also his daughter (P.W. 7) and his son (P.W. 8) that the Appellant No. 1 had informed them about disappearing of Asho Devi. So no adverse inference should have been drawn on a finding of fact that no information had been lodged by the Appellants. His further contention is that no motive has been established and the well from which the dead body was found is situated at a distance of half kilometer from the house of the Appellants and in that circumstance it cannot be definitely inferred that the Appellants had hand in throwing the dead body into that well which belongs to one Basant Sao. His further contention was that the Doctor did not find any ante-mortem injury and could not give any definite opinion as to how the death had occurred and so the finding of the learned trial Court that the death was homicidal was not based on legal evidence. According to the contentions of the learned Counsel for the Appellants, the Appellants may not have been convicted when the above facts and circumstances about which the learned trial Court has given findings are not correct.

On the other hand, learned Counsel for the State has contended that from the evidence brought on the record, there could be no doubt that Asho Devi had been killed before her dead body was thrown into the well and the Appellants had strong motive for killing Asho Devi because she had told other persons about catching hold of her body with bad intention by Appellant No. 2 and he was naturally lowered down in the eye of public for that reason, and the Appellant No. 1 also must have utterly disliked that Asho Devi, by raising commotion about the incident which led to the punchaiti and award exposed his father before the people as a characterless man and reputation of the entire family was tarnished.

The only point that arises for consideration in this appeal is as to whether in view of the contentions raised, finding of the learned trial Court holding the Appellants guilty is correct and well founded on the evidence on record.

Now so far as the fact that Asho Devi was living in the house of the Appellants, there seems to be sufficient evidence on record and even Appellant No. 1 while being examined u/s 313 of the Code of Criminal Procedure had admitted this fact. The finding that Asho Devi had been killed by some one before her dead body had been dropped into the well also seems to be correct. Even the Doctor stated categorically that it was not a case of drowning (vide paragraph 5 of his evidence). Although he stated that it could not be exactly ascertained as to what was the cause of death, he also stated that it was certainly not a case of natural death. From the evidence of the informant and the Sarpanch (P.W. 3) as well as from the evidence of the Investigating Officer it appears that some injuries had been seen on the head of the deceased and also blood was coming out from the mouth. There was also swelling on the neck. Of course, the Doctor did not state to have found head injury but he stated about the bleeding from the nostril and although he stated that the neck was found enlarged because of thyroid gland, it has been elicited during the cross-examination of the informant that his daughter had never suffered from any disease of swelling of neck or throat, (vide paragraph 13 of his cross-examination). So it appears that the Doctor might have missed to observe the injury on the head and misinterpreted the swelling on the neck that it was due to enlarged thyroid gland. Some of the witnesses have also stated about the position of teeth which were closed and set. The doctor found that the left chamber of the heart was empty and the right chamber was containing about 30 to 40 cc of dark red blood. These signs definitely go to indicate that there was pressure put on the throat. But apart from all these, the fact that Jhaggar with rope had been found entangled with the locks of hair of the dead body which was recovered from the well, clearly goes to show that she had been dropped into the well by means of a Jhaggar rope was found to be cut on the other end (as the Investigating Officer has deposed) while one end was tied to the Jhaggar. So there can be no doubt that Asho Devi had been killed and then dropped into the well by means of the Jhaggar.

The question which falls for consideration as to who could have done the killing and dropping of the dead body into the well. There can be no doubt that the Appellant No. 2 had a motive for doing away with the life of Asho Devi because of the fact that she had exposed him before the general public and he must have felt that his image had been tarnished in the eye of the public because Asho Devi had raised commotion when he had caught hold of her hands and thus made a gesture towards her with bad intention. There is sufficient and satisfactory evidence to show that a punchaiti had been done and Ext. 4, which is an award of the punches, shows that by this award Appellant No. 2 had been separated and even utensils were to be partitioned. This award is dated 9.2.1984 and it contains the signature of P.W. 4. There is reference in this award of ''Jhagra Jhanjhat" and "Ghenauni Baten" (that means quarrel and hatefull fact). This reference to the words ''Ghenauni Baten'' of the evidence of P.W. 5 definitely relates to the alleged action of Appellant No. 2 and it is indicated by the award that the punches were, therefore, of the view that Appellant No. 2 should live separately from Asho Devi. This award was prepared before the occurrence had been reported and there is no reason to reject its contents. In the Fard-beyan, also, there is reference to the punchaiti and arrangement by the punches for their living separately of Appellant No. 2 and Asho Devi and, as hereinbefore mentioned, the accused while they were examined u/s 313 of the Code of Criminal Procedure also admitted these facts. So Appellant No. 2 had a definite motive for killing as he must have felt very much aggrieved by commotion raised by Asho Devi leading to the punchaiti and the people thereby had come to know about his action against Asho Devi. Appellant No. 1 also had reason to feel aggrieved because the image of his family had been tarnished by the commotion raised by Asho Devi due to which the punchaiti had to be held. He might have felt that Asho Devi should have informed him privately rather than raised hue and cry and thereby made public the incident indicating that his father had caught hold of her body with bad motive.

So the contention that has been raised on behalf of the Appellants that the Appellants have no motive for the killing cannot be accepted as correct. It may be noticed that both the Appellants started living together and did not abide by the award of the punches that they should live separately. It is indicated from the Fard-beyan that the informant had learnt that despite the decision of the punches the Appellants lived together. To be sure in the evidence the informant did not state so and so that part of the Fard-beyan cannot be considered to be substantive. But the Appellant No. 2 himself stated during the examination u/s 313 of the Code of Criminal Procedure that his son did not separate with his wife from this applicant No. 2 and this he stated after admitting the fact that the punches had decided that his son Appellant No. 1 and his wife Asho Devi should live separate. This is indicative of the fact that the two Appellant did not relish the decision of the punches and they did not abide by it and they remained together.

Thus it appears that the fact that Asho Devi was living in the house of Appellants, the fact that her death was homicidal and the fact that the Appellants had motive for killing Asho Devi who had tarnished the image of Appellant No. 1 in the eye of other villagers seem to have been fully established and any contention raised to the contrary by the learned Counsel for the Appellants cannot be accepted as correct.

As regards the contention that there is evidence that an old lady (the mother) also lived in the house as deposed by P.W. 4 and so the learned trial Court committed an error in coming to the finding that only the Appellants lived in the house with Asho Devi is not correct, it may be noticed that there is only a general statement that the old lady lived in the house, but there is no specific evidence that in the night preceding the date of killing of Asho Devi any one was present in the house in which Asho Devi was living with the Appellants, a fact had also been admitted by the Appellants in their statements u/s 313 of the Code of Criminal Procedure. So in my opinion the general evidence that some other persons also lived in the house, in the absence of any specific evidence whether on the fateful night anybody was living there, is of no avail to the defence. In any case an old lady even if she was living in that house cannot, on ground of probability be accepted to be involved in the killing of Asho Devi. So that contention of the learned Counsel for the Appellants, in my opinion, also fails.

As regards the contention that the Appellant No. I, though did not go to inform the police about disappearance of Asho Devi had given information about her disappearance to his brother-in-law (P.W. 7) as well as to his father-in-law (P.W. 5) and also his sister-in-law (P.W. 6) and so this lack of giving information should not have been considered as an adverse circumstance against the Appellants. It may be observed that the fact of giving information to brother-in-law or father-in-law after victim had been killed and dropped into a well cannot, in the circumstances of the case, be suggestive of the fact of bonafide of Appellant No. 1. After the dead body had been dropped in the well lying at some distance from the house and after ensuring that it will remain under water by the device of entangling locks of hair with a Jhaggar, Appellant No. 1 might have thought it proper to inform his in-laws so that no suspicion could grow against him. The finding of the trial Court that the Appellants did not inform the police is certainly correct because Appellant No. 1 in his statement wanted to explain this omission by saying that he did not know that information (of such matter) is lodged in the police station. The aforementioned facts established by cogent and clear evidence, in my opinion, definitely lead to the conclusion that it was the Appellants who had hand in killing Asho Devi and in dropping the dead body in the well with a device that the dead body should remain under water and not visible from the above.

So after carefully considering the entire materials on record and contentions I am of the opinion that none of the contentions raised on behalf of the Appellants can be accepted as correct. So the point in this appeal is decided by holding that the finding of conviction arrived at by the learned trial Court by reason of the impugned order holding the Appellants guilty of the offences punishable u/s 302 read with Section 34 of Indian Penal Code and Section 231 read with Section 34 of Indian Penal Code is correct and justified in view of the evidence on record. Therefore, this appeal does not seem to have any merit and is accordingly dismissed. The finding of conviction of both the Appellants for the aforesaid offences and the sentence passed by the learned trial Court are hereby upheld.

Satyabrata Sinha, J.

I agree.