1 CRIMINAL APPEAL No.469 OF 2006(D.B.) - - - - 1. NAGESHWAR SINGH @ PRATAP NARAIN SINGH 2. MALTI DEVI ------------(Appellants) Versus STATE OF BIHAR-----Respondent) With CR. APP (DB) No.575 OF 2006 SRIKANT SINGH-----(Appellant) Versus STATE OF BIHAR-----(Respondent) Against the judgment and order dated 19.5.2006 passed by the Additional Sessions Judge(Presi- ding Officer, Fast Track Court, Ist), Nawada, in Sessions Trial No. 82 of 1999/5 of 2005, arising out of Roh P.S.Case No.42 of 1998. - - - - For the appellants: Shri Farooq Ahmad Khan and (in both the appeals)Shri Durgesh Nandan,Advocates For the State: Shri Lala Kailash Bihari Prasad, Additional Public Prosecutor P R E S E N T - - - - THE HON'BLE MR. JUSTICE C.M.PRASAD THE HON’BLE MR. JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha,J.- Appellants Nageshwar Singh alias Pratap Narain singh ( who has described himself as Pratap Narain Sharma also in his statement under Section 313 of the Code of Criminal Procedure) and Malti Devi in Criminal Appeal No. 469 of 2006 are the parents of the sole appellant Srikant Singh in Criminal Appeal No. 575 of 2006. They were put on trial for committing the offences under sections 302/34 and 201 of the 2 Indian Penal Code and were found guilty of committing the offence of murder by the learned Presiding Officer of Fast Track Court, Ist, Nawada, in Sessions Trial No. 82/1999/5 of 2005 and each of them was directed to suffer rigorous imprisonment for life by the above noted court under Section 302 of the Indian Penal Code. No sentence of fine was imposed by the learned trial Judge while passing the judgment and order of conviction dated 19.5.2006 which is being assailed by the three appellants in the present two appeals. 2. Some of the admitted facts of the case are that Sushma Devi was married to appellant Srikant Singh and the couple had begotten three children- two daughters, who were the eldest and the youngest, and a son- and on the date of occurrence the deceased was residing in the house of the appellants. It is also not disputed that the deceased Sushma Devi had given birth to her third child just a prior to the occurrence and on that occasion she was residing in her parent’s house and had been brought by her husband to his house in Nawada. It is also not challenged that the death of Sushma Devi occurred in the house of the appellants. 3 3. Under the above background of the case, P.W. 2 Deo Narain Prasad Singh, the father of the deceased, gave his fardbeyan at the house of the appellants alleging that he had come to his house from his work-place at about 7 P.M. on 24.9.1998 when his wife, P.W. 5 Indira Devi, stated to him that Sushma had been murdered by her husband and in-laws. P.W. 5 stated to P.W. 2 that she had gathered the information from one of the ladies of the Mohalla that the deceased fell down from the roof and on that information she went to a particular place in Nawada town and found the dead body of Shushma lying in a trekker covered with a cloth. Appellant Srikant Singh and Nageshwar Singh replied to P.W. 5 on her query that she had fallen down from the roof-top and, as such, there was no need to cry, else, the situation could get worse. P.W. 5 stated to P.W. 2 that when she wanted to have a glance of her daughter, appellants Srikant Singh and Nageshwar Singh did not permit her to do so upon which Indira Devi(P.W. 5) sat in the trekker saying that she would also accompany them but both the appellants, Srikant Singh and Nageshwar Singh, pulled her out of the vehicle and sped away from there. 4 4. P.W. 2 stated that after having learnt the above facts, he contacted some of his neighbours in the Mohalla and went to village Marara with them for enquiring about the truthfulness of the information and when he reached the house of the appellants he found that the dead body of his daughter was lying in the passage of the house of the appellants and it was covered with cloth which was removed by P.W. 2 and thereon he found that deep cut wounds were present on her head, neck and back, appearing caused by sharp cutting weapon. On making enquiry from the persons of neighbourhood, P.W. 2 claimed being told that while the deceased was cooking meals she was assaulted by her husband, appellant Srikant Singh, with Tangi while the remaining two appellants, i.e., Nageshwar Singh and Malti Devi, caught hold of her. The deceased was mercilessly assaulted with Tangi by appellant Srikant Singh and others and the deceased was murdered. 5. P. W. 2 stated that he had four daughters and Sushma was the eldest among them who had been married to appellant Srikant Singh, whereas his second daughter had been married to a man of village Naudiha in the District of Gaya. 5 He further stated that Srikant Singh and the deceased had three children- two daughters and one son, the third being born about one month prior to the incident and thereafter appellant Srikant Singh threatened the informant ten days prior to the incident that a daughter again being born, the informant should either get an employment for him or should transfer the house at Nawada to him, else, appellant Srikant Singh would kill the informant(P.W. 2) and his daughter both. It was stated by the informant that the deceased had come to her matrimonial house ten days prior to the incident and on that occasion also appellant Srikant Sigh had beaten up the deceased when she stated to P.W. 2 that she would be killed by the appellants as soon as she reached her house. It was, as such, alleged that for the above motive of either not getting an employment or the house transferred to him the incident had occurred. 6. On the basis of the fardbeyan(Ext. 5) of P.W. 2, the F.I.R. of the case(Ext.6) was drawn up and the case was investigated into by S.I. Suryadeo Kumar, P.W. 9, who was also the Officer-in-charge of Roh Police station. 6 7. During the course of investigation, P.W. 9 inspected the place of occurrence which was the house of the appellants and during that course found the dead body lying in the passage of the house. The inquest report (Ext.7) was prepared in presence of the witnesses. During the further inspection of the inner section of the house, P.W. 9 found a blood stained tangi and that was also seized by preparing seizure memo in presence of the witnesses. The seizure memo has been marked Ext. 4/1. P. W. 9 also found a green colour checked Lungi having stains of blood with two petticoats, also having stains of blood, and seized the same by preparing the seizure memo in presence of the witnesses. The rooms were found freshly washed and the earthen surface of the verandah and Angan were also found freshly cleaned. P.W. 9 sent the dead body for post- mortem examination and after recording the statements of the witnesses and finding the case fit for being submitted for trial, sent up the appellants for their trial. As indicated above, the accused were charged and after conclusion of the trial they were found guilty and sentenced, as indicated in paragraph 1 of the present judgment. 7 8. The defence of the appellants was of complete innocence. It was suggested to different witnesses, like, P.W. 5, the mother of the deceased and others that no occurrence in the manner as alleged occurred and, in fact, the deceased had fallen down from the roof-top of the house and as such had died. This also appears from the cross-examination of P.W. 2 Deo Narain Prasad Singh, the father of the deceased, and the informant who turned hostile. The further defence is the evidence of two defence witnesses, namely, Dilip Singh and Arun Kumar that appellant Nageshwar Singh and Srikant Singh were not present at their house as they were witnessing a foot ball match in a field in their own village and there was a hulla that the wife of appellant Srikant Sigh had fallen down from the roof top and thereupon, the D.Ws. and others along with the appellants went to the house and found the deceased lying after having fallen from the roof-top and was also found bearing injuries. 9. The prosecution examined a total number of ten witnesses in support of the charge out of whom P.W. 2 Dev Narayan Prasad Singh, the informant, turned hostile and was cross-examined by the prosecution, though he stated that he had 8 lodged the report at the Police Station as may appear from his evidence in paragraph 3. P.W. 4 Ram Sharan Mahto also turned hostile. P.W. 10 Alakh Nandan Chauhan is a witness of formal nature who proved the writings of P.W.9 on station diary entry no. 371 dated 24.9.1998. P.W. 1 is Dr. Anadi Kumar Manjhi who held the post- mortem examination and prepared the post-mortem examination report, Ext.1. P.W. 3.Sanjeev Parasar was a tenant in the house of the informant and supported the prosecution story as contained in Ext. 4, the F.I.R. Similarly, P.W. 6 Prem Ranjan Prasad also supported the story in the manner as was done by P.W. 3 Sanjeev Parasar. P.W. 7 Sita Ram Prasad is also a witness who claimed accompanying the informant, like, P.W. 4 Ram Sharan Mahto and P.W. 6 Prem Ranjan Prasad to the house of the appellants. He witnessed the seizure of different articles as also the holding of inquest. The most important witness for the prosecution is P.W. 8 Fulwa Devi, who had initially learnt about the incident and informed P.W. 5 Indira Devi, the mother of the deceased and accompanied her to different places in Nawada so as to locating the dead body and also appears seeing it. As indicated above, P.W. 9 S.I. 9 Suryadeo Kumar had investigated the case. After considering the evidence of the prosecution and the defence, the learned trial Judge passed the judgment and order of conviction, as indicated in the earlier part of the present judgment. 10. Shri Farooq Ahmad Khan and Shri Durgesh Nandan, Advocates, appearing for the appellants in both the appeals, took us through the evidence of each and every witness to submit that there was no eye witness to the occurrence and except suspicion there was no evidence to connect the three appellants with the commission of the offence. It was further contended that there was no circumstance implicating the appellants, except that some injuries were present on the dead body, but again those are without any support from the oral testimony as regards the author of those injuries. The next contention was that there was some evidence of recovery of a Tangi or some blood-stained- clothes but there is neither any evidence as to what was the dimension of the blade of the Tangi nor there was any evidence as to the clothes belonging to a particular person of the family, least to say of the appellants. The injuries which were found by P.W. 1 could be also possible 10 by a fall from the roof-top on pieces of broken glass and rejected tin cans and in absence of any clinching chain formed by links of circumstances, the prosecution appears failing to prove the charge. Shri Khan also submitted that the innocence of the appellants was indicated by their conduct of putting the injured Sushma Devi on a trekker and rushing her to Nawada for better treatment and as soon as they arrived there, they contacted the parents of the deceased so as to informing them about the incident as to how the deceased happened to receive those injuries. It was contended by Shri Khan that the blood stained Lungi and petticoats were not produced. It was contended further that whatever evidence has been produced by the prosecution is constituted by the witnesses who are interested in the informant and the basic prosecution case has not been proved as the informant himself did not support it. It was contended that the prosecution, as such, has failed in proving the charge. 11. As against the above, Shri Lala Kailash Bihari Prasad, learned Additional Public Prosecutor, submitted that, firstly, the Court should make an enquiry as to whether the victim 11 had died at the spot or was still alive while taken to Nawada and submitted that the evidence of D.Ws. 1 and 2 indicated that she was already dead at the place of occurrence. It was contended that the attempt by the appellants in carrying the dead body from their house at village Marara to the township of Nawada was only to create a smoke screen so as to diverting the attention of all concerned including the police from the real incident. It was further contended that it was not a conduct indicating the innocence of the appellants that they were carrying the dead body, rather, it was a conduct, as submitted above, which was an attempt of creating an eye wash and if the Court considers it with all seriousness, that it deserved, it could simply be indicated that the conduct was such as to destroying the presumption of innocence of the appellants. Learned Public Prosecutor placed reliance on the decision reported in 2003(4) P.L.J.R. 224(S.C.) as also 2005 S.C.C.(Cri.) 511 Kamesh Panjiar Vs. State of Bihar in support of his above contention. It was contended that the motive for the occurrence was proved from the evidence of P.W. 3 in paragraph 3 and P.W. 5 in paragraph 5 who have 12 stated that appellant Srikant Singh was asking P.W. 2 to either get a job for him or transfer his house in Nawada and further that Sushma used to say that her husband would kill her. 12. As regards the other circumstances, the learned Public Prosecutor submitted that P.W. 9, the I.O. of the case found the house and verandah freshly cleaned and the dead body was still lying in the passage of the house. Shri Lala Kailash Bihari Prasad, learned Additional Public Prosecutor has placed reliance also on 2001(4) P.L.J.R. 123(S.C.) Ramgulam Chaudhary Vs. State of Bihar and 2008 S.C.C.(Cri.) 109 Gagan Kanaujia Vs.State of Punajab. 13. As regards the contention that the basic prosecution case has not been substantiated because P.W. 2 Deo Narayan Prasad Singh went hostile to the prosecution by not supporting his fardbeyan, the most important aspect of the matter appears missed. P.W. 2 was not the person who had received the information directly either from the appellants or from the lady subsequently examined as P.W. 8. He was probably having the 3rd or 4th hand information from his wife about the death of his daughter. The reading of the fardbeyan may indicate that the information was 13 of two types- that the deceased had been killed and that initially the wife of P.W. 2, that is, P.W. 5 Indira Devi was told that her daughter had fallen from the roof top and had been brought to Nawada. It is true that he has stated that he went to village Marra with some of his neighbours, like, P.Ws. 3,4,6 and 7 so as to enquiring about the truthfulness of the information and has stated that he learnt from persons there that his daughter had been killed by her husband and in-laws in the manner as alleged. The persons who narrated about the incident to P.W. 2 were neither named by him in the F.I.R. nor in his evidence, nor the investigating Officer, P.W. 9, appears tracing them out and recording their statements. As such, that part of the story remains in the realm of inadmissible evidence. Even if P.W. 2 would not have narrated the above part of the story of getting information from others, his evidence would be subjected to the same criticism, on the scale of inadmissibility. The whole part of the story except the motive part as told by P.W. 2 appears a 3rd hand or 4th hand information received by him and in all such cases the source of information could be of real worth and value 14 as regards the acceptability of the story put forward by the prosecution. In such a situation, as appears in the present case, I am of the confirmed view that the informant of the case, P.W. 2, if goes hostile or appears not supporting his own case, it does not make much of difference because primary or secondary evidence has to be looked for and tested on the scale of admissibility and reliability. If a court finds it admissible and reliable, then even if the informant is not examined, least to talk of turning hostile like P.W. 2, the Court could go on passing its judgment acting upon the evidence of other witnesses who could come forward to place before the court their side of the story as they perceived it by their senses. 14. There are witnesses who have come forwarded and who could be said to have a deeper knowledge of the facts, constituting the prosecution information, on account of being associated with P.W. 2 in going to village Marra from Nawada so as to gathering the information or on account of being connected with the family as in the case of P.W. 3 Sanjeev Parasar and others who are the tenants living under the same roof with their landlords P.Ws, 2 and 5. 15 Besides, the evidence of P.W. 8 Fulwa Devi was also available to the court for getting the facts of the matter so as to basing its judgment and that evidence is also available to us and we could wade through the testimony of the witnesses except P.W. 2 to examine whether the charges were brought home or not. 15. But it is not that the evidence of P.W. 2 does not give any support to the prosecution story. It is stated by P.W. 2 that he had gone to village Marara. He also states in paragraph 3 that he had given a fardbeyan which was recorded by the officer-in-charge of the Police Station, i.e., P.W. 9 of Roh Police Station, which was read over to him and finding it correctly recorded he had signed the statement. This may not be an evidence of the contents of the document Ext. 2( Fardbeyan), but it could be sufficient evidence of the fact that things were not normal, that something very serious had taken place which had forced P.W. 2 to approach the Police Station for lodging a report. The evidence of P.W. 2 that his statement was recorded and read over to him and finding it correctly recorded he signed the same could, besides anything, be an evidence of one thing 16 that the report was about the cognizable offence which could have been committed or which could have occurred within the jurisdiction of the Police Station. Therefore, it is very difficult to accept that P.W 2’s evidence was of no worth. It, probably, still remains a good piece of evidence for the court to record a finding that sufficient reasons were there for P.w.9 to investigate a cognizable offence by collecting relevant materials and P.W. 9 had as such collected sufficient material and on investigation found it a good case for sending up the accused persons. 16. The above finding recorded by me gets further support from further evidence of PW. 2 in paragraph 6 in which, while justifying his act of not supporting his own case, he was putting an explanation of losing mental balance after finding his daughter dead and as such succumbed to the pressures of P.W. 9 to sign a paper. The evidence in paragraph 6 of P.W. 2 itself could give sufficient indication that it was not a plain paper because the witness has stated that P.W. 9 did not read over the document to him and passed it to him only to put his signature and he accordingly complied. The above 17 inference is further strengthened by his own statement in the same paragraph following the above part of the evidence in court that the document was signed on the asking of P.W. 9 also by Sanjeev Parasar(P.W.3), Prem Ranjan Prasad(P.W. 6) and Sita Ram Prasad(P.W. 7). The evidence of the case indicates that P.W. 2 was an employee in the Central Bank of India. One may refer to Paragraph 4 of the evidence of Indira Devi, P.W. 5 who happens to be the wife of the informant. He could be assumed to be a literate person, as he appears to be, and as such he was endowed with sufficient intelligence and understanding as to what was the implication of his act. It could never be an act unintentionally committed by him or could not be so account of being asked for by any one, like, P.W. 9. Thus, what appears to me on the analysis of the facts and circumstances appearing from the evidence of P.W. 2 is that P.W. 2 was committing perjury and that was apparently clear from his own statement when one reads the same as in paragraphs 3 and 6 of his evidence. The entire evidence was on oath and while in paragraph 3 he stated that he had given the statement to the Officer-in-charge which was written and read 18 over to him and finding the same correct he signed, he gave another statement completely in conflict with the above contents of paragraph 3 in his evidence in paragraph 6 stating that he had not given any statement. It was a fit case and it continues to be a fit case that the witness P.W. 2 should be prosecuted for perjury. Above all, the evidence of P.W. 2 has still the value of raising an inference, as indicated by me in the earlier part of the present judgment, that there was some cognizable offence committed and that he lodged a report. 17. The evidence of P.W. 2 when considered in tandem with that of P.Ws. 4,5, and 6 could also lead to an inference that he and the above witnesses had gone to the Police Station Roh. P.W. 9 states that too. Other P.Ws. state that they had gone to enquire into the truthfulness of the information about Sushma’s death. Thus the part of the prosecution story that the informant and others went to Village- Marara and from there to Roh gets established by the evidence of P.W. 2 and others. 18. Now, what were the facts on the basis of which the commission of the above noted cognizable offence by the appellants could be 19 gathered from the evidence of other witnesses, like, P.Ws 5, and 8. P.W. 5, Indira Devi, as indicated above, is the wife of P.W. 2, Deo Narain Prasad Singh, the informant, and she claimed deriving the information about the incident from P.W. 8 Fulwa Devi. The evidence of P.W. 8 Fulwa Devi is that while she was at her house appellant Nageshwar Singh was found there at about 7 P.M. enquiring about the house of P.W. 2 Deo Naraian Sigh and he stated that his daughter had fallen down from the roof top and as such he wanted him to be called. P.W.8 has very honestly stated that the informant Deo Narain Prasad Singh was the son of her husband’s sister (Bhagina) and as such she was on visiting terms with the informant and there used to be exchange of invitations between the two families. On the above ground P.W. 8 appears coming out of her house so as to going to the house of P.Ws. 2 and 5 to inform them about the incident and taking P.W. 5 with her, P.W. 8 came again to appellant Nageshwar Singh at Chhai Road but there