Sugapati Devi vs The State of Bihar

A.K. Lal, J.

The sole appellant has preferred this appeal against the judgment and order dated 6.5.1992 passed by the learned Sessions Judge, West Champaran, Bettiah, in Sessions Trial No. 351 of 1989 by which she has been convicted and sentenced to rigorous imprisonment for life under Section 302 of the Indian Penal Code.

The prosecution case is based on the fardbeyan (Ext.1) recorded by P.W.4 G.P. Mishra, the officer-in-charge of Police Station Majhouliya on 18.9.1987 at 11-30 P.M. at the door of the informant Babu Nand Mahto (P.W.3). It is alleged that the informant was cutting fodder at his door on 18.9.1987 at about 2.30-3.00 P.M., D.W.2 Chilari, a minor daughter of Shankar Mahto and accused Bipati Devi, came running and crying that Rakesh, aged about six years, had been drowned in the canal water by his aunt i.e., Sugapati Devi (appellant), wife of Sitaram Mahto. The informant went to the place of occurrence. He saw Ganesh Mahto (P.W.1) near the place of occurrence who was coming from Bettiah. P.W.1 also told in loud voice that the woman had drowned the boy in the canal. He pointed out towards the woman who was Sugapati Devi (appellant) standing by the side of the canal. She was having in her possession wet clothes after bath. The informant also cried about the overt act of the wife of Sitaram Mahto. The villagers arrived including Ashok Sah (D.W.3) who took out the deceased son of the informant from water. A formal F.I.R. (Ext.2) was drawn up on the basis of the fardbeyan of the informant.

After investigation chargesheet was submitted against the appellant and Bipati Devi, cognizance was taken and the case was committed to the court of sessions. Charges were framed against both the accused. After the trial the co-accused Bipati Devi was acquitted and the appellant Sugapati Devi has been held guilty as aforesaid.

The defence of the accused is that she is innocent and has not committed any offence. The accused has also examined three witnesses in support of her case.

The prosecution has examined five witnesses to prove its case.

This Court is required to reappraise the evidence to consider as to whether the prosecution has been able to substantiate its case beyond reasonable doubt.

P.W.1 Ganesh Mahto is claiming to be an eye witness. P.W.2 Surendra Nath Tiwary and P.W.3 Babu Nand Mahto are the hearsay witnesses. P.W.4 G.P. Mishra is the investigating officer. P.W.5 Dr. Madan Mohan Prasad had held the post mortem examination (Ext.4).

P.W.1 Ganesh Mahto has stated that on the date and time of occurrence he was returning from Bettiah. When he was crossing through the village, he saw that a woman was drowning a boy and ultimately the boy was lost in water. He raised alarm and people assembled there. The boy was taken out from water and Babu Nand Mahto (P.W.3) identified him as his son aged about 5 to 7 years and the people told that the lady was Sugapati Devi, wife of Sitaram Mahto. Another lady was also taking bath there, who was identified as Bipati Devi (acquitted). In his cross-examination he has stated that 52 to 60 persons came at the place of occurrence. Babu Nand Mahto (P.W.3) told that it was Sugapati Devi, wife of Sitaram Mahto.

P.W.2 Surendra Nath Tiwary has stated that when he was returning from his field and came near the canal, he saw that Ganesh Mahto (P.W.1) was crying that a woman had drowned a boy in water. Several persons came there. He also saw the dead body of a boy. From the perusal of the evidence of P.W.2 it appears that he is not an eye witness to the occurrence.

P.W.3 Babu Nand Mahto is the informant and the father of the deceased Rakesh. He has stated that Chilari (D.W.2) told him that the wife of Sitaram killed Rakesh aged about six years. Sugapati Devi is the wife of Sitaram. He came near the canal and saw Ganesh Mahto on the other side of the bank of the canal, who told him that a woman had drowned a boy in water. Sugapati Devi (appellant) was in water and Bipati Devi was on the bank of the canal. Her clothes were wet. On raising alarm Surendra Tiwary (P.W.2) and others came there. The boy was taken out from water and it was found that his neck was twisted and blood was coming out from his nose and mouth. The police officer came there in the night at 10/11 P.M., who recorded his statement and the dead body was sent to the hospital. He has disclosed the reason for the occurrence that as his father had lodged a case against Sugapati appellant. She was asking him to compromise the case. The wife of Sitaram (appellant) had also lodged a case of theft against him (P.W.3).

P.W.4 is the investigating officer, who was also the officer-in-charge of Majhouliya Police Station at the time of occurrence. He has stated that after hearing a rumour he went to village-Fulthurwa and recorded the fardbeyan of Babu Nand Mahto (P.W.3). The fardbeyan has been marked as Ext.1. On the basis of the fardbeyan, the F.I.R. (Ext.2) was lodged. He found the dead body of Rakesh (deceased) and prepared the inquest report (Ext.3). He inspected the place of occurrence on 19.9.1987 at 6 A.M. The place of occurrence was in the southern side of the village-Fulthurwa and it was the northern side of the main canal where ghat had been made for taking bath and the depth of the canal was 7 feet. He took the statements of Babu Nand Mahto (P.W.3), Ganesh Mahto (P.W.1) and Surendra Nath Tiwari (P.W.2) on 18.9.1987. He also examined Ekayati Devi, Daroga Prasad, Anirudh Giri, Chandrabhan Prasad and Ish Mahammad on 19.9.1987, but none of them has been examined in the court. In his cross-examination he has stated that height of the bank of the canal was 8 feet. One could slip from the bank of the canal. P.W.2 Surendra Nath Tiwari had stated before him that he saw the dead body of the boy at his darwaja. P.W.2 did not state before him that he went to the canal and the dead body was taken out from the canal in his presence.

P.W.5 Dr. Madan Mohan Prasad had held the post mortem examination on the dead body of the deceased Rakesh Mahto, aged about six years on 19.9.1987 at 11-15 A.M. On dissection he found that the second cervical vertebra was fractured and there was some blood under the skin and in the wind pipe. All the chambers of the heart were empty. The lungs were normal and stomach contained only a little juice. The injuries were ante-mortem and the time elapsed since death and post mortem held was within 24 hours. The cause of death was the fracture of the second cervical vertebra. The post mortem report has been marked as Ext. 4. In his cross-examination he has stated that the fracture was possible if one falls from the height of 8 feet. No trace of mud or water was found indicating falling of the deceased in water. By throttling neck, trachea is affected. In this case trachea was not injured or fractured but blood was found in it.

The prosecution case is based on the information of Chilari, aged about nine years (on 15.7.1991). She has not been examined by the prosecution. She has been examined on behalf of the accused as D.W.2. She has stated that Rakesh Mahto (deceased), son of Babu Nand Mahto (P.W.3) was younger than her. She had gone to take bath with him. Both of them were taking bath after sitting on the banana plant. Rakesh fell down and sank in water. She rushed to the house after raising alarm. The people came there and took him out from water. No one had drowned him. In her cross-examination also she has stated that no one had drowned the deceased. No one was available there when he was drowned. Only two persons, she and Rakesh, were playing there. It is not a fact that she had shouted that the wife of Sitaram caused Rakesh to drown in the canal water.

After hearing learned counsels for both the parties and on perusal of the records, it appears that P.W.1 is a chance witness. The F.I.R. has been lodged by the informant in this case on the basis of the information given to him by Chilari, who has not been examined as prosecution witness. She has been examined by the defence as D.W.2, who has stated that no one had drowned Rakesh (deceased). Both of them were playing and at that time no one was present there. She ruled out the presence of P.W.1 Ganesh Mahto at the time of occurrence. P.W.1 has only been examined as an eye witness. He appears to be a chance witness. His evidence does not appear to be trustworthy. His statement is contrary to the medical evidence. The doctor has found that fracture of second cervical vertebra was possible by fall from height of 8 feet. No trace of mud or water in the gut or lungs was found indicating drowning of the boy in water. By throttling neck trachea is affected. In this case trachea was not injured or fractured.

The medical evidence belies the statement of P.W.1 Ganesh Mahto, who has claimed to be an eye witness. P.W.2 Surendra Nath Tiwary has not stated before the investigating officer that he went to the place of occurrence rather he has stated before the investigating officer that he saw the dead body of the boy on the darwaja of the deceased. He had not stated before the investigating officer that he had gone to the canal and the dead body was taken out of water in his presence. P.Ws. 2 and 3 are the hearsay witnesses. Their evidence has not been corroborated by any witness except P.W.1 whose statement has not been found trustworthy in view of the medical evidence.

Considering the facts and circumstances stated above, in our opinion, the prosecution has not been able to prove its case beyond all reasonable doubts. The impugned judgment of conviction and sentence is not fit to be sustained, as such it is set aside. The appellant is discharged from the liabilities of the bail bond.

In the result, the appeal is allowed. The appellant is acquitted.

Dharnidhar Jha, J.

I agree.