CRIMINAL APPEAL No.78 OF 1988 (D.B.) ***** Against the judgment dated 30.1.1988, passed in Sessions Trial No.320 of 1985 by Shri R.K. Singh, 10th Additional Sessions Judge, Munger. ***** 1. Bokan Singh 2. Joga Singh @ Jago Singh 3. Surendra Singh @ Suren Singh 4. Achutanand Singh @ Achhita Singh: Appellants Versus The State of Bihar : …. ….. Respondent ***** For the Appellants: Ms. Anjana Prakash, Senior Advocate with Mr. Shivendra Kumar Sinha & Mr. Rakesh Kumar Sinha No.1, Advocates. For the S t a t e: Mr. Lala Kailash Bihari Prasad, Public Prosecutor. ***** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH ***** S K Katriar & S P Singh, JJ. All the four appellants have jointly come up in this appeal against the judgment dated 30.1.1988, passed by the learned 10th Additional Sessions Judge, Munger, in Sessions Trial No.320 of 1985 (The State of Bihar Vs. Bokan Singh and three others), whereby appellant no.1 (Bokan Singh) has been convicted under Section 302 of the Indian Penal Code, and has been sentenced to undergo rigorous imprisonment for life. 2 Furthermore, the four appellants have been convicted under section 201 IPC and have been sentenced to undergo rigorous imprisonment for seven years. Both the sentences are to run concurrently. It may at the outset, be indicated that appellant nos.1, 3 and 4 are full brothers and are the sons of Ramjee Singh, whereas appellant no.2 is the own uncle of the other three appellants. The four appellants have been charged under section 302 read with Section 34, I.P.C. for the murder of Smt. Krishna Devi, wife of appellant no.1, and they have also been charged under section 201 of the IPC. 2. According to the prosecution case, one Ram Janam Singh, son of Ramji Singh of village Salempur, P.S. Surajgarha, District- Munger, had informed the Surajgarha Police Station about the death of Smt. Krishna Devi. The fardbeyan (Exhibit-3) was accordingly recorded on 21.12.1983, at 13.15 hours, alleging therein that about 10 days earlier, the four appellants had in the night of 16.12.1983, at about 12.00 P.M., murdered Krishna Devi (wife of Bokan Singh) and had disposed of the dead body by abandoning it in Garikhai river. Bokan Singh was married to Krishna Devi about five years ago with the daughter of Sitaram Singh of village- Lakshminiya, P.S. Balia. The couple did not sire any child. It was suspected that immoral character of the deceased was the reason for her murder. On the 3 basis of these allegations, a formal F.I.R. was drawn up and registered as Surajgarha Police Station Case No.0236 of 1983, dated 21.12.1983, under section 302 read with section 34 as well as section 201 of the IPC. Investigation commenced leading to charge-sheet against the four appellants. Charge-sheet was submitted against them and were put to trial under the aforesaid sections. 3. The prosecution examined altogether 11 witnesses to prove the charges. P.W.1 (Sukhdeo Yadav), P.W.2 (Ram Raksha Singh), P.W.3 (Nand Kumar Singh), P.W.4 (Brahmdeo Singh) are local residents, cultivators by avocation, and have been declared hostile. P.W. 9 (Banarsi Singh) is also a local resident and has also been declared hostile. In view of the position that these prosecution witnesses have been declared hostile, we do not wish to draw much attention to their evidences and do not venture to summarise their depositions. 4. P.W.7 (Keshar Sah) is the Chaukidar and is said to have put his thumb impression on the inquest report (Exhibit-4). He has also been declared hostile. He has stated in his deposition that he had not identified the dead body of the wife of Bokan Singh. He claims to have brought the dead body for the purpose of post-mortem from the police station to Sadar Hospital, Munger, but had not identified the dead body. He has 4 further deposed that women of the community (Bhumihar community), to which she belonged, do not go out of their residence. He had never gone to the residence of appellant no.1. He does not recognise any woman of the house of Bokan Singh. He is capable of recording his signature and has recorded it towards the end of the deposition. He is not aware whether or not the Investigating Officer has put the thumb impression of anybody else on the inquest report (Exhibit.4). 5. P.W.5 (Ram Udit Singh) is the own Bahnoi of the deceased, and is naturally co-brother of appellant no.1. He claims to have taken leading role in fixing the marriage of the deceased with appellant no.1. She was a resident of village- Lakshminiya, P.S. Baliya, District-Begusarai. He had heard that Krishna Devi died. After having been declared hostile he was cross- examined by the prosecution. He has stated in his deposition that had Krishna Devi been ill, he would have surely come to know of it. He denied to be in collusion with the accused persons and suppressing the correct state of affairs. He was thereafter subjected to cross-examination by the defence. He has stated that he had picked up quarrel with appellant no.1 regarding lands and were no longer on visiting terms. He denies to have ever heard that the deceased was of loose character. He has denied the suggestion that there was 5 ever any conflict between the deceased on the one hand, and appellant no.1 and the Sasural people, on the other. He has further deposed to the effect that the deceased was a patient of asthma. He has further deposed to the effect that he had gone to the police station to identify the dead body but could not identify the same. He has also deposed to the effect that the deceased died a natural death and not on account of murder. 6. P.W.6 (Radha Krishna Singh) is the full brother of the deceased. He has stated in his deposition that Raj Narain Singh had informed him that the appellants had killed his sister (Krishna Devi), had tied a pitcher (Ghara) in her neck, tied her legs and abandoned it in river Garikhai. The police had recovered the dead body. He had gone straight to Surajgarha police station and was informed by the Investigating Officer that the post-mortem on the dead body was held at Munger Sadar Hospital and the dead body was cremated by the police. One Saree, Blouse, Sweater, and bangles allegedly belonging to the deceased were shown to P.W.6 at the police station, who had identified the same to be of Krishna Devi which had been given to her by her Naihar people. He further deposed that appellant no.1 and his family members wanted to perform the ritual of nw/kh dk Hkkr, but the co- villagers had not participated in the same. The 6 marriage had taken place about five years prior to her death. Her second marriage (f)jkxeu) was done after five years of marriage because of their indigent circumstances. He used to visit his other sister married in the same village. He used to be advised that the second marriage should be performed quickly because appellant no.1 had illicit relationship with his elder brother’s wife (HkkStkbZ lquSuk nsoh). The second marriage had taken place about 2-21/2 months before the murder. She was not suffering from any ailment and was quite healthy. According to him, the motive for the murder of Krishna Devi was that appellant no.1 had illicit relationship with his elder brother’s wife. He had learnt of the demise of his sister about 6-7 days after she was murdered. He had gone over to village- Surajgarha on the following day. He had received no information of the death from appellant no.1. He has further deposed to the effect that the deceased used to tell him that some of the Sasural people did not like her. She used to say that she had some trouble because some of the Sasural People did not like her. He has further stated during the course of his cross- examination that the aforesaid personal belongings of the deceased have not been produced in court during the course of his deposition. He has further stated during the course of cross-examination that “xqykch jax dh vkapy 7 lwrh lkMh Fkh“. He has denied the suggestion that he had taken loan from appellant no.1 giving rise to conflict between them. He also denied the suggestion that he is not a genuine person. He has denied the suggestion that Krishna Devi was suffering from asthma and had died natural death. He also denied the suggestion that she had been cremated at Gauri Shankar Ghat. 7. P.W.8 (Jagdish Singh) was the Civil- Surgeon posted at Madhepura at that point of time and had conducted the post-mortem on the dead body of Krishna Devi. It is relevant to state that he claims to have conducted the post-mortem at 11.30 A.M. on 21.12.1983. He himself did not recognise the dead body, which was identified as the wife of appellant no.1 by Ram Naresh Singh (Constable no.1187), Balgovind Ram (Constable no.1234), Keshar Sah (P.W.7), Tanik Paswan, Dhorha Sah. It is relevant to state that only Keshar Sah among these persons was examined as a prosecution witness. He has proved the post-mortem report which has been marked Exhibit-1. The same reads as follows: Held P.M. on the dead body of a female w/o Bokan Singh of village Salempur, P.S. Surajgarha, Munger, and found the following- Riger mortis absent, sodden skin in sole, feet & hands. Peeling fit of skin at places all over the body. Tongue protruded. No froth or foam seen at mouth or nostril. Lung was not discovered nor water came out on cutting the lung. De composite standard-Spleen was almost 8 completely decomposed. No external injury seen on the body. Time elapsed between death and PM - more than 3 days. No definite cause of death can be given. Hence viscera have been preserved- (1) Stomach with its ortem (2) portion of lung-liver-heom-spleen- kidney. He has deposed to the effect that the aforesaid physical condition of the dead body indicated that death was the result of drowning. He has stated that viscera has been preserved. 8. P.W.10 (Rajendra Prasad Yadav) is Constable no.108 in the office of Public Prosecutor, Khagaria, and has proved the F.I.R. as Exhibit 2, and the Signature thereon as Exhibit-3. 9. P.W.11 (Ram Sagar Mishra) was the A.S.I. at the Surajgarha Police Station, had conducted the investigation, and had submitted the charge-sheet. He has stated in his deposition that the aforesaid Ram Janam Singh had visited the police station at 13.15 hours on 21.12.1983, and reduced his version into the Fardbeyan (Exhibit-2). The Fardbeyan is in his hand- writing and also bears his signature. Ram Janam Singh had put his signature on that. On the basis of the fardbeyan, a formal F.I.R. was drawn (marked Exhibit-2). He proceeded to the place of occurrence accompanied with Ram Naresh Singh (Constable no.1187), Balgovind Ram (Constable no.1234), Babulal Dharhi, Chaukidar, 9 Kishundeo Paswan (Chaukidar), and Bhagwat Paswan (Chaukidar) at 13.45 hours. It is relevant to state that none of these constables or Chaukidars have been produced as witnesses. He had recovered the dead body of a woman from Garikhai river whose both legs were tied with rope and the neck was tied with a pitcher. She had on her person a blouse of light brown colour (eVeSyk) and upon which she was wearing a woolen blouse of biscuit colour (cknkeh jax). She had also on her person “ok;y ukjaxh jax dh lkMh dk VqdMk igus gq, ik;k“. The dead body was in highly de-composed position. The place of occurrence is quite lonely. The dead body was taken out of water and was identified by Ram Janam Singh and Keshar Sah (P.W.7) to be the wife of Bokan Singh. It is relevant to state that Ram Janam Singh has not been examined as a witness, and Keshar Sah (P.W.7) has turned hostile. He prepared the inquest report (marked Exhibit-4). Sukhdeo Yadav and Prakash Yadav testified to the same as witnesses. Sukhdeo Yadav is P.W.1. Prakash Yadav has not been examined as a witness. P.W.11 had entrusted the Constables/ Chaukidars mentioned therein to accompany the dead body to Munger Sadar Hospital for post-mortem. Carbon copy of the forwarding letter has been marked Exhibit-5. After returning to the village, he enquired of the appellants but were not traceable. He inspected the residence of appellant no.1 in the 10 presence of the informant. He recorded the statement of number of inmates. As per the direction of the Superintendent of Police, Munger, he forwarded the viscera to the Forensic Science Laboratory, Bihar, Patna, for medical report. After conclusion of the investigation, he submitted charge-sheet dated 11.9.1984. He has further stated in his deposition that P.W.3 ((Nand Kumar Singh), P.W.4 (Brahmdeo Singh), and P.W.5 (Ram Udit Singh) had stated before him that it was doubtful whether or not appellant no.1 had , with the collusion of his family members, murdered Krishna Devi. P.Ws.4 and 5 had also stated before him during the course of investigation that had Krishna Devi been ill they would have surely come to know of it. He had further deposed to the effect that he had preserved in the police station the aforesaid two blouses, the piece of saree and bangles of the deceased. He has also stated that P.W.6 (Radha Krishna Singh) had identified the aforesaid articles of the deceased at the police station on 24.12.1983. He has identified the signature of Ram Janam Singh at the foot of the fardbeyan. He has denied the suggestion that it was not the signature of Ram Janam Singh. He has further stated that P.W.6 has stated before him on 24.12.1983 that he had come on the information (U;ksrk) of appellant no.1. He has also stated that P.W.6 had not stated before him that he had 11 learnt of the death from Raj Narain Singh (the alleged informant). He has also stated that the aforesaid personal belongings of the deceased were not before him during the course of his deposition. 10. As stated hereinabove, the following documents have been proved by the prosecution witnesses: (i) Exhibit-1, the post-mortem report, proved by P.W.8. (ii) Exhibit-2, the F.I.R., proved by P.W.11. (iii) Exhibit-3, the fardbeyan, proved by P.W.11. (iv)Exhibit-4, Inquest report, proved by P.W.11. (v) Exhibit-5, carbon copy of the letter (deku) for post-mortem, proved by P.W.11. 11. The defence has examined 9 witnesses in support of its defence. D.W.1 (Dhana Singh) is the local Sarpanch. He has deposed to the effect that wife of Bokan Singh died and she was cremated as per the Hindu rites at Gauri Shankar Ghat. He was present at the time of cremation. D.W.3 (Ram Bilash Singh), D.W.4 (Satya Narayan Singh), Raso Singh etc. were also present. Few Majdoors like Baso Tati, Jawahar Sah were also present. Bhola Pandit (D.W.6) was also present. The rituals of “nw/kh vkSj n’kdeZ“ was also observed. daVkgh iafMr (Lal Babaji) had also participated in the rituals. 12 He has further stated to the effect that Krishna Devi had died on account of asthma. He has denied the suggestion that the dead body was tied with pitcher and abandoned in the river. He had denied the suggestion that the police had recovered her dead body and had the post-mortem done. Then he added voluntarily that the police had after 4-5 days got another dead body which was subjected to post-mortem. He denied the suggestion that appellant no.1 had illicit relationship with his elder brother’s wife. 12. D.W.2 (Suresh Singh) is a local cultivator and claims to be acquainted with the family members of appellant no.1. His wife died on 12.12.1983. Appellant no.1 and his wife were of good moral character. She died of asthma. Her dead body was cremated at Gauri Shankar Ghat at Surajgarha in the presence of a few names mentioned therein including D.Ws.1, 2 and 6. Suresh Dom was paid for providing fire for the cremation. The dead body was completely burnt. The ritual of “nw/kh Hkkr“ had taken place. Other rituals of “Jk)“ were performed. Money was demanded from Radha Krishna Singh (P.W.6) and Madhusudan Singh who expressed difficulty and said that the same shall be handed over after selling the buffalo. 13. D.W.3 is Ram Bilash Singh who runs a medical shop. He claims to recognise appellant no.1 as 13 well as his wife. He has deposed to the effect that she was a patient of asthma. The agnates were present at the time of her cremation. Bokan Singh had applied the fire to the funeral pyre in the traditional attire along with other persons present there. He had denied the suggestion that the wife of appellant no.1 was murdered and abandoned in the Garikhai river. He has further deposed to the effect that the police had caused post-mortem on an unclaimed dead body. No person of the village had identified that dead body. He has further stated that he had seen the dead body of Krishna Devi and was present at the time of her cremation. 14. D.W.4 (Satya Narayan Singh) is a local cultivator. He claims to known appellant no.1, his brothers, uncle etc. as well as the deceased. She died on 12.12.1983 on account of asthma. He had gone to see her at that point of time and found spitting and cough around her. She was taken to Gauri Shankar Ghat for cremation. D.Ws.6, 8, 3, 2, Bajo Singh etc. were also present at the time of cremation. He claims to have attended the wedding of appellant no.1 and had seen Krishna Devi. The ritual of “nw/kh Hkkr“ had taken place. He has further stated that the police had thereafter ensured post-mortem on an unclaimed dead body and had given the name of Krishna Devi. The same was at the 14 instance of her brother because he had differences with Bokan Singh for financial reason. 15. D.W.5 is Lal Jha and is engaged in the avocation of performing Hindu rituals (ttekfudk o`fRr). He claims to have known appellant no.1 and his family members. He had conducted the rituals of 11 days Shradh of the deceased. 16. D.W.6 is Bhola Pandey and is engaged in the avocation of performing Hindu rituals (ttekfudk o`fRr). He claims to be Purohit of village Salempur and known to appellant no.1 and his family members. He was also Purohit at the time of marriage of appellant no.1. He recognised his wife. She died on account of asthma on 12.12.1983. He had conducted the rituals at the time of her cremation and Suresh Dom was paid for the funeral. Raso Singh, D.W.4, D.W.2, D.W.3, D.W.8 etc. were also present at the time of cremation. The dead body was fully burnt. He had never heard about immoral character of the deceased. 17. D.W.7 is Sadhu Thakur and is a barber by profession. He knows the family of appellant no.1. He had shaved the heads of the family members at the time of Shradh. She had died on account of asthma. She used to expectorate cough. 18. D.W.8 (Basudeo Tanti) is a local labourer and a neighbour of appellant no.1. The dead 15 body of the deceased was cremated at Gauri Shankar Ghat. D.W.2, Satan Singh, Daso Singh, Ram Ratan Singh, appellant no.1, appellant no.2 and others were present at the time of cremation. He was also present at the time of cremation. 19. D.W.9 is Upendra Singh and is a doctor by profession. He was posted in the Government Hospital, Surajgarha, earlier. He had treated Krishna Devi for asthma. He proved her prescriptions as well as the X- ray report which has been marked Exhibits A, A/1, A/2, A/3, Exhibit-B, Exhibit-C. He has deposed to the effect that asthma can lead to heart failure and death. He has further deposed to the effect that it appears from the prescriptions marked exhibits A, A/1, A/2, A/3, Exhibits- B and C that she was treated for ordinary asthma and she was not treated for serious kind of asthma. One prescription was under the signature of D.W.9 and others were under the signature of other doctors. 20. As stated hereinabove, the defence witnesses have proved the following documents: (i) Exhibit A/1 is the prescription dated 1.12.1983 on the letter head of D.W.9, and under his signature. It, inter alia, states that she was treated for breathlessness and was given a number of medicines. 16 (ii) Exhibit-A/2 is the prescription of Government Hospital, Balia, Begusarai, on the letter head of Dr. P.N. Rai which has entries of 1982 including those of 8.10.1982 and 19.10.1982. (iii) Exhibit-A/3 is the medical prescription on the letter head of Dr. S.S. Afaque who was then Assistant Civil-Surgeon at Balia (Begusarai). He seems to have treated Krishna Devi for breathlessness, cough and fever. She was diagnosed for “Asthmaticus”. (iv) Exhibit-B is the duplicate copy of X-ray plate of the chest of Krishna Devi. (v) Exhibit-C is the report of the radiologist, Ashok Upadhyay, issued on 13.12.1987, indicating therein that the X-ray was taken on 5.10.1982, the report was issued on 13.12.1987, at the request of the party of the patient. It says that Krishna Devi was suffering from Bronchitis with Emphysema. 21. The accused persons pleaded not guilty of the charges and claimed to be tried. They denied the prosecution allegations during the course of their statement under Section 313 of the Code of Criminal Procedure. They have put up the defence that Krishna Devi was a patient of asthma and had died on account of the same. She was cremated according to the Hindu rites, and the Shradh had taken place. They have also set up the defence that P.W.6, the Sala of appellant no.1, had 17 taken loan from the latter, which he had declined to return and had, therefore, given false evidence. 22. On a consideration of the materials on record indicated hereinabove, the learned trial court held that the appellants herein were guilty of the murder of Krishna Devi, and the dead body had been identified. The prosecution case is supported by the medical evidence. He has also disbelieved the plea set up by the defence that she died on account of asthma. The learned trial court was of the view that she was a patient of simple asthma. He has also believed the prosecution case to the effect that appellant no.1 had developed illicit relationship with his elder brother’s wife, and Krishna Devi was coming in his way because she had returned from her Naihar after Gauna. He has also opined that there is no direct evidence of murder and has, for this reason, acquitted appellant nos.2 to 4 of the charge under section 302/34 of the IPC. The learned trial court is also of the view that Krishna Devi was under the care and custody of her husband and, therefore, the liability of her murder was bound to be fastened on the husband. He has also come to the conclusion that the dead body could not have been carried to the river by appellant no.1 alone and has, therefore, found the four appellants guilty under section 201 of the IPC. 18 23. The obvious question which falls for determination of this Court is whether or not the appellants are guilty of the murder of Krishna Devi in terms of section 302 read with section 34, as well as 201 of the I.P.C. It appears to us on a perusal of the materials on record that the prosecution has to prove whether or not Krishna Devi was murdered earlier and thereafter abandoned in the river in the manner suggested by it, or tied in the manner suggested by it and then thrown in the river to die. It is manifest from a plain reading of the post-mortem report as well as the deposition of P.W.8 that there were no mark of strangulation or any other kind of physical violence on the body of the deceased. Therefore, it is not