CRIMINAL APPEAL No.83 OF 1989 ******* Against the judgment passed by Sri Kamla Prasad Sinha, Additional Sessions Judge, XI, Munger, Dated 07th February, 1989,in Sessions Case no.120 Off 1985. ******* 1. Rajendra Mahton, 2. Khalath Mahton @ Khalthu Mahto, 3. Karu Mahton. --Appellants Versus. The State of Bihar -- Respondent ******* For the Appellants : Mr. Rakesh Kumar Sinha For the Respondetns : Smt. Shashi Bala Verma. ******* P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. Three appellants, Rajendra Mahton, Khalthu Mahto and Kare Mahton, have preferred this appeal against the order of their conviction under Section 302/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life passed in Sessions 2 Trial no.120 of 1985 arising out of Beldar P.S. Case no. 31 of 1984 by learned Additional Sessions Judge, XI, Munger. 2. The prosecution case, in short, as appear from Fardbayan of Kamo Mahto (not examined) recorded on 08th March, 1984, is that his cousin sister, Sumitra Devi, had some quarrel with her mother-in-law in previous evening. Her husband was working at Punjab and in the morning he heard that Sumitra Devi is dead and preparation for her cremation is going on. He arrived at her house and asked from her father-in-law that is appellant Rajendra Mahton who informed that due to some pain in stomach she died. When he could be able to see her dead body he found that she had been killed by strangulation with the help of some rope. So he informed local Sarpanch and Chaukidar (both not examined) and on whose intervention cremation was stopped. Meanwhile, Police arrived and his statement was recorded. He further disclosed father’s name of the deceased as Bishun Mahton (P.W.4). 3. The Police, after investigation, 3 submitted charge sheet against the appellants besides Chandra Kala Devi, mother-in-law of the deceased, but, after trial, Chandra Kala Devi, has been acquitted whereas the three appellants were held guilty and, on conviction, sentenced in the manner above said giving rise to the instant appeal. 4. Prosecution has examined altogether eight witnesses in support of the case besides producing Exhibit-1, post mortem report, Exhibit-2, signature of Wakil Yadav (P.W.5) on inquest report, Exhibit-2/1 signature of P.W.8, Fulan Kumar Singh, Exhibit-3, first information report and Exhibit-4, Fardbayan. No oral or documentary evidence has been produced by the defence to support the defence case that deceased committed suicide since her husband, who was residing at Pnnjab for last about two years brought a letter expressing his intention that so long the deceased will remain in the house, he will not be returning home. 5. Now it is to be seen whether the prosecution has been able to substantiate the charge beyond any shadow of reasonable doubt or finding of 4 the trial court deserves interference. 6. P.W.1, Dr. Om Prakash Sinha, who conducted autopsy, found the following two ante- mortem injuries upon the dead body. (i) One well defined ligature mark over lower part of neck below the thyroid cartilage encircling the neck horizontally and completely. (ii) Abrasion ¼ ” x 1/6” over right side of fore-head. On dissection, there was extra vassation of blood in subcutaneous tissues under the ligature mark and abrasion. Adjacent muscle of the neck where lacerated. Larynax, trachea and bronchial tube were congested and contained bloody froth. Hyoid bone larynx and upper two rings were fractured. Brain was congested. Lungs were congested. Right side of the heart was full of dark fluid blood and left side was empty. Liver, spleen and kidney were congested. Stomach and urinary bladder were empty. Intestine contained gases and fasces. Uterus was nonoravid. The doctor also found externally that rigor mortis was present in both extremity. Face was swollen, cynosure and marked with petechic. Mouth was open. Lips were blue. Tongue was swollen. Injury no. (ii), abrasion, was caused by hard and blunt substance. He opined that the death was due to asphyxia caused by strangulation. Time elapsed since death was within 24 to 36 hours.” 7. In the opinion of the doctor to establish commission of suicide existence of ligature mark on the 5 upper part of the neck is a must. In absence thereof the theory of suicide is not to be believed. In this background, we are to examine oral and other evidence available on the record. 8. P.W.2, Garjoo Mahto, a close relative of the deceased from her maternal side and co-villager at Sasural side, arrived at the place of occurrence on call by appellant no.1 through appellant no.3 not stating even any suspicion against the appellants and he had been declared hostile by the prosecution since before Police he has, as alleged, said that it is the appellants who have committed her murder. Similar is the position of P.W.3, Bulaki Devi, who is none-else than wife of P.W.2. 9. Bishnu Mahto, P.W.4 father of the deceased, has come to say that his daughter was married to Gulab Mahto, son of appellant no.1, eight years ago and since beginning due to non-compliance of some petty demands relationship was not cordial and there was regular insistence by appellant no.1 and husband of the deceased to fulfill the demand which could not be complied with and he heard that his daughter has been 6 killed by the appellants. He is not an eye-witness nor said anything indicating direct involvement of the appellants in such crime. This witness has further said that his statement was recorded by Police eight to nine days after the occurrence though he, on getting information, already arrived and could be able to see his deceased daughter in the postmortem house itself. Such delay in recording his statement remains unexplained. 10. Wakil Yadav, P.W.5, a co-villager witness on inquest report, proved his signature, Exhibit-2, but in cross-examination this witness has stated that at the relevant date in the morning he arrived at the house of the appellants and found the door of the room of the deceased closed from inside but inspite of different calls did not open the room then from nearby room one boy was sent through the small passage in between the two rooms at upper portion who could be able to open the door of the room. Only thereafter the persons assembled there could be able to see that deceased was being hanged through Dharam of the room with the help of a rope. They could brought her on the earth. This statement of 7 the witness creates grave doubt upon the prosecution case and, prima facie, supports the defence version that deceased committed suicide. P.W.6, Surendra Prasad Thakur, a formal witness, has proved Exhibits-3 and 4. 11. Bashishtha Narain Singh, P.W.7, is Investigating Officer of the case who, as stated in examination-in-chief, took charge of the investigation at the place of occurrence itself but surprisingly enough he has not mentioned even a word about the place of occurrence except stating about recording statement of some witnesses. This Investigating Officer has said absolutely nothing. Had this witness, the Investigating Officer, been inspected the place of occurrence and provided some details as regard to the two rooms and possibility of any person coming out of the room where dead body was found after closing the doors the circumstances arises out of the report of the doctor conducting post mortem could have been corroborated and the prosecution could be able to establish the charges against the accused persons, who were undoubtedly inmates of the house wherein the young lady lost her life 8 under undisputed unnatural circumstances. But, in absence of any material indicating such possibility gives room to the appellants to submit that there is absolutely no evidence to substantiate the charge against them and on basis of some materials one of the accused, Chandra Kala Devi, has been acquitted by the court below and the appellants deserve same benefit. Last witness P.W.8, Fulan Kumar Singh, proved Exhibit-2/1, his signature on inquest report. He too has said nothing to support the prosecution version. 12. We have heard the learned counsel for the appellants as well as learned counsel for the State and in our considered view in absence of place of occurrence’s inspection and connecting details only on the basis of opinion of the doctor conducting post mortem that too support commission of suicide finding of ligature mark on the upper portion of the neck was a must, the appellants cannot be held guilty of murder of the deceased only because of being inmates of the house and the prosecution, in absence of material possible evidence could not be able to remove the dark cloud 9 casted against its version. The appellants deserve the same benefit which has been granted by the trial court on same materials to one of the co-accused, Chandra Kala Devi, mother-in-law of the deceased, with whom, as alleged, in the previous evening there was also some quarrel with the deceased. 13. Accordingly, order of conviction and sentence to the appellants is set aside and the appeal stands allows. The appellants, who are enjoying the privilege of bail, are discharged from the liabilities of bail bonds furnished on their behalf. Sd/ (Akhilesh Chandra, J.) Shyam Kishore Sharma, J. I agree. Sd/- (Shyam Kishore Sharma, J.) Patna High Court, The 07th January, 2011. AAhmad.(NAFR). 10