IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.210 OF 2004 ----- Against the judgment of conviction dated 24.01.2004 and order of sentence dated 27.01.2004 passed by Sri Syed Ahmad Danish, Presiding Officer of Addl. Court No.V (F.T.C.), Saran at Chapra in Sessions Trial No. 164 of 2001/15 of 2003. ------- 1. SANTU PANDIT SON OF RAM PERVESH PANDIT 2. FULJHARI DEVI @ PHULJHARIA DEVI WIFE OF RAM PERVESH PANDIT BOTH ARE RESIDENT OF VILLAGE NADAUA,P.S.BANIYAPUR DISTRICT SARAN ------ APPELLANTS Versus THE STATE OF BIHAR ----- RESPONDENT Appearance : For the Appellants: Mr. Madhaw Prasad Yadav, Advocate For the Respondent: Mr. Ashwini Kumar Sinha, Addl.P.P. -------- CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA AND HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA -------------- ORAL JUDGMENT ----- S.K.Sharma & R.K.Mishra,JJ. The appeal was preferred by three appellants namely, Santu Pandit, Ram Pervesh Pandit and Fuljhari Devi alias Phuljharia Devi. Appellant No.1 Santu Pandit and appellant no.3 are son and wife respectively of appellant no.2 Ram Pervesh Pandit. During pendency of this appeal, appellant no.2 Ram Pervesh Pandit has died and a report regarding his death has been received. As such, the appeal against appellant no.2 Ram Pervesh Pandit abates and the appeal remains only against appellant no.1 Santu Pandit and appellant no.3 Fuljhari Devi alias Phuljharia Devi. 2. The appeal is against the judgment of 2 conviction dated 24.01.2004 and order of sentence dated 27.01.2004 passed by Sri Syed Ahmad Danish, Presiding Officer of Additional Court No.V (F.T.C.), Saran at Chapra in Sessions Trial No. 164 of 2001/15 of 2003 whereby appellants were convicted for offence under Section 302/34 of the Indian Penal Code and were sentenced to life imprisonment. No sentence of fine was awarded. 3. Fardbeyan (Ext.4) was lodged by Chawkidar No. 511 Ram Chandrika Manjhi (P.W.8) of village Nadwa, P.S.Baniyapur, District Saran. According to prosecution case, fardbeyan of the informant (P.W.8) was recorded by S.I. Sri R.K.Sharan (P.W.11), Officer-in-charge of Baniyapur Police station on 20.07.2000 at 6.30 A.M. in which it was alleged that on that very date the informant received information that Santu Pandit, Ram Pervesh Pandit and Fuljhari Devi alias Phuljharia Devi have burnt to death to wife of Santu Pandit and her 8 years old daughter by pouring kerosene oil upon them and with a view to remove the dead bodies, they are loading the dead bodies on a vehicle. The informant immediately rushed to the resident of accused persons and there he found the dead bodies of wife of Santu 3 Pandit and her daughter Puja Kumari. Accused Santu Pandit initially wanted to escape but with the help of villagers, he was intercepted and meanwhile the Officer-in-charge of Baniyapur Police Station reached there and recorded the fardbeyan. According to informant, the marriage was performed 12 to 13 years earlier. Accused Santu Pandit was not happy with his wife Meena Devi, so she was burnt alive along with her daughter. A case was instituted and a formal F.I.R. was drawn. The Police prepared the inquest reports (Exts. 6 and 6/1). The post mortem reports (Exts. 8 and 8/1) were received. The matter was investigated into and after completion of investigation, chargesheet was submitted for the offence punishable under Section 302/34 of the Indian Penal Code. Cognizance was taken and the case was committed to the court of Sessions where charge under Section 302/34 of the Indian Penal Code was framed and explained to the accused persons to which they pleaded innocence and preferred to face the trial. 4. In order to prove its case, the prosecution examined altogether 14 witnesses and exhibited the documents. The witnesses are : 4 Bhuneshwar Pandit (P.W.1), Kazim Hussain (P.W.2), Santosh Pandit (P.W.3), Rajiv Prasad (P.W.4) Bishwanath Sharma (P.W.5), Aziz Mian (P.W.6), Jai Prakash Pandey (P.W.7), Ram Chandrika Manjhi, the informant of the case (P.W.8), Inderman Prasad (P.W.9), Kishun Pandit (P.W.10), Ram Kishore Sharan, Investigation of the case (P.W.11), Mahesh Pandey (P.W.12), Ram Lochan Rai (P.W.13) and Dr.Binod Kumar Singh (P.W.14). 5. P.Ws 5,7 and 13 are witnesses of the inquest, P.Ws. 6 and 12 are hearsay witnesses. 6. P.W.14 has conducted autopsy over the dead bodies of both the deceased and he has found extensive burn injuries. Autopsy was conducted on 21.07.2000 and according to doctor, the death was within 24 to 48 hours on account of burn injuries. Therefore, the prosecution was able to prove beyond the shadow of all reasonable doubt that Meena Devi and here daughter Puja Kumari were killed or died on account of burn injuries. 7. The trial court after considering the oral and documentary evidences and after hearing the parties came to the opinion that the prosecution has been able to prove the charge against the accused persons beyond the shadow of 5 all reasonable doubts. So, the order of conviction and sentence, as stated above, was passed. 8. This court has to go through the records of the case to see as to whether the prosecution was able to prove the charge against the appellants beyond the shadow of all reasonable doubts. 9. P.W.1 Bhuneshwar Pandit is the brother of the deceased Meena Devi. He has stated that on 20th July, 2000 he received information regarding death of his sister and her daughter at 5.00 A.M., while he was at his village. His sister Meena Devi was married with Santu Pandit 12 to 13 years earlier and out of their wedlock, a daughter Puja Kumari was born. Some persons of village Nadwa came and told that Meena Devi and Puja Kumari have been done to death by Santu pandit and his parents. On getting information, he rushed to village Nadwa along with Ganesh Pandit (not examined) , Kaji Mian (P.W.2), Krishna Deo Pandit (P.W.10), Mazhar Ansari (not examined) and others. There he found both the dead bodies and at that time Meena Devi was 26 years old. The villagers told that both killing was done by the accused persons. The reason given for death was that Santu 6 Pandit used to tell his wife that she was not to his liking. No complaint ever was made regarding behaviour of Santu Pandit that Meena Devi was not his liking. Therefore, it appears that the version that Meena Devi was not liking by her husband has come for the first time after her death. Attention has been drawn towards the evidence of this witness where he has stated that on 20th July, 2000 at 5.00 A.M. he received information regarding death of Meena Devil through many persons of P.O. village. The distance between two places is 6 miles. In that view of the matter, this witness is not a witness of occurrence and he has merely expressed suspicion that her sister might have been killed by the accused persons. Therefore, the evidence of P.W.1 does not rope the accused persons in the crime alleged. 10. P.W.2 is Kajim Hussain. He received information in the morning in his village that Meena Devi and her daughter have been killed. He went to village Nadwa along with 3-4 persons. In paragraph 7 of his cross-examination, this witness has stated that the Officer-in-charge has not made any query with him, so it appears that he was not examined under Section 161 of the Code of Criminal 7 Procedure and for the first time he was examined in court and the said version cannot be accepted to be true. 11. P.W.3 Santosh Pandit has stated that he went to the P.O. village and came to know that killing was by the accused persons. This witness is also not the eye witness of the occurrence and he has come after knowing about the occurrence. P.W.6 is hearsay witness. 12. P.W.8 Ram Charitra Manjhi is Chawkidar of the area and is informant of the case. He received information at 5.00 A.M. on 20th July, 2000 that Santu Pandit and his parents have killed Meena Devi and her daughter. Thereafter this witness went to the house of Santu Pandit and found Meena Devi and Puja Kumari dead. The dead bodies were found lying in the house of Santu Pandit. Santu Pandit tried to escape but he was caught with the help of the villagers. This witness was not knowing as to why two killings were made. In paragraph 7 of his cross- examination, this witness has stated that the gate of the room where dead bodies were kept was found broken and in paragraph 8 he has stated that the water was found sprinkled and the clothes of the 8 dead bodies were wet. Therefore, if the evidence of this witness is considered, then it is apparent that he has given some different version to that of fardbeyan when he was examined as a witness in court. This witness has not stated all these facts in the fardbeyen. Therefore, this witness has given different version of the occurrence. In any view of the matter, this witness is not a witness of occurrence. Similar is the evidence of P.W.9 who has not seen the occurrence. 13. P.W.11 is the Investigating Officer of the case. He has found the dead bodies on a cot and the door of the room was found broken. Some clothes were found at the place of occurrence and those clothes were wet. This witness came to know that Santu pandit wanted to marry with another lady, so she might have been killed. This witness has not stated the name of that person who had stated that Santu was not liking his wife. 14. If the charge of murder is proved, then the onus upon the prosecution is to prove that the offence as alleged was committed by the accused persons and no others, then the probabilities of participation of others have to be ruled out. For conviction under Section 302 of 9 the Indian Penal Code it is essential that at least some persons should come who can say that the killing was by the accused persons. If the total evidence on record is scanned, then only inference comes that there were two dead bodies at the house of the accused persons. No doubt the prosecution has been able to prove that the death of two persons had taken place by burn injuries but the cause of death has not come on the record. Under Section 106 of the Evidence Act, burden of proving fact especially within knowledge remains with the person who has knowledge but this case will not come within the purview of Section 106 of the Evidence Act. There are many incongruities. P.W.1 who has come from paternal side of the deceased has deposed that Meena Devi was normally taken to her in-laws house by her-in-laws. So there is nothing on the record from which it can even be presumed that Meena Devi was not liking by Santu Pandit. Therefore, if the evidence brought on record is summed up, then the only version comes that it has been proved that the killing was on account of burn injury but the prosecution has not been able to prove that the accused persons have killed the deceased. Such 10 type of doubtful evidence cannot be relied upon. Once a doubt is created with regard to the manner of occurrence or with regard to evidence in general, the benefit of doubt goes to the accused persons and similar is the case herein. In view of the discussions above, it is the case in which the appellants are entitled to get benefit of doubt. Accordingly, they deserve to be acquitted. 15. In the result, this appeal is allowed and the order of conviction and sentence of the appellants is set aside. Both the appellants are acquitted of the charge. Appellant Fuljhari Devi alias Phuljharia Devi is discharged from the liability of her bail bonds. Appellant Santu Pandit, who is reported to be in custody, is directed to be released forthwith if he is not required in any other case. ( Shyam Kishore Sharma, J.) ( Rajendra Kumar Mishra, J.) Patna High Court, Patna The 6th July, 2011 Tahir/-(NAFR).