1 CRIMINAL APPEAL No.318 OF 2003. - - - - - - - - - Against the judgment and order respectively dated 28th May 203 and 30th May 2003 passed by 5th Addl. Sessions judge, Hajipur at Hajipur in S.T. No. 501/06. 1. Arun Sah son of Lutan Sah. 2. Lutan Sah son of Late Kali Charan Sah, Both residents of Bahsi Damodar, P.S.Jandaha District Vaishali ------------------------------------Appellant. Versus STATE OF BIHAR------------------------------Respondents. For the Appellants : Mr. Ram Sumiran Singh, Adv. For the State : Mre.Ashwini Kumar Sinha, A.P.P. P R E S E N T. THE HON'BLE MR. JUSTICE CHANDRA MOHAN PRASAD. THE HON'BLE MR. JUSTICE DHARNIDHAR JHA. C.M.Prasad,J & DharnidharJha,J This appeal is against the judgment of conviction and order of sentence respectively dated 28th May 2003 and 30th May 2003 of the 5th Additional Sessions Judge, Hajipur passed in Sessions Trial No.501 of 1996 whereby each of the two appellants has been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo R.I. for life. 2. Appellant Arun Sah is husband and Lutan Sah is father-in-law of the deceased. It has to be mentioned here that Reshma Devi, the mother in-law of the deceased was also an accused in this case, but she died during investigation, hence, charge-sheet was submitted against the present two appellants only and they were put on trial and have been convicted and sentenced, as above. 3. The prosecution case, as set forth in the written report dated 24th March 1996 as filed by the informant Shivjee 2 Sah, father of deceased, is that about 15 years ago he had married Sunita Devi, the deceased to the appellant Arun Sah and that four daughters and two sons were born out of the wedlock. The informant alleged that the appellants and Reshma Devi (now dead) used to abuse and even beat up the deceased due to her failure to bring money from her parents on their demand. They were also harassing deceased’s sons and daughters and that due to this the informant had brought her three daughters and one son to his house and he was keeping them with him. Only one son and one daughter were living with the deceased in her matrimonial house. The informant further alleged that seeing the misery of the deceased in her matrimonial house, he had also brought the deceased and the two children to his house and he was keeping and maintaining them there. In the past month of January, appellant Arun Sah came to deceased’s Maika and he pressurized the informant for sending the deceased with him to her matrimonial house on the ground that his (Arun Sah’s) mother’s operation was to be undergone. The informant sent the deceased with appellant Arun Sah to her matrimonial house, but after bringing her to her matrimonial house again they started demanding money and torturing the deceased due to non- fulfilment of the demand. In the morning of 24th March 1996 he received information that the appellants and the mother-in-law (now dead) had killed the deceased by setting her on fire and then hurriedly he (informant) along with some of his family 3 members went to the deceased’s Sasural and on their arrival the appellants and the deceased’s mother-in-law as well as Pattidars, all left the house. The informant found that the dead body with burn injury was kept in the house in a condition covered with clothe. The informant stated that he confidentially enquired in the village and he learnt that in the preceding night the appellants and the mother-in-law of the deceased had killed her by way of burning her. The informant kept some of his persons there for guarding the dead body and he went to the Police Station and filed a written report (Ext-2) under his signature. On the basis of the written report (Ext-2) FIR was drawn up and the case was investigated. On completion of investigation and submission of charge-sheet, appellants were put on trial and they have been, accordingly, convicted and sentenced. 4.As many as 14 witnesses were examined by the prosecution. Out of them, P.W.10 Prakash Kumar is son of the deceased who was aged 5 – 5 ½ years at the time of occurrence and who is said to be present in the deceased’s Sasural is the only eye witness to the occurrence and thus, he is most material witness for the prosecution. P.W.11 is the informant himself. P.W.5 Kapildeo Prasad is the Mama of the deceased, P.W.6 Sanjay Kumar is the brother of the deceased. P.W.9 Santosh Kumar is the cousin of the deceased who has stated to have gone to deceased’s Sasural with the informant and to have learnt about the occurrence from deceased’s son (P.W.10) there. P.W.7 4 Uma Devi and P.W.8 Anuradha Kumari are the daughters of the deceased who were not living with the deceased, but with the informant. P.W.3 Nageshwar Singh and P.W.12 Nokhi Prasad Choudhary are formal witnesses who have respectively proved the inquest report (Ext-1) and the protest Petition (Ext-3) which was filed by the informant during investigation. P.W.2 Rajendra Sah and P.W.8 Anuradha Kumari have been tendered by the prosecution and these witnesses have not said anything about the occurrence. P.W.1 Yageshwar Prasad Sah is a witness who has been declared by the prosecution a hostile witness. This witness has stated in his examination-in-chief that while the deceased was cooking meal, her clothes caught fire. Curiously it is found that the prosecution has drawn attention of this witness towards his previous Police statement that due to some altercation in the evening the deceased, out of anger, had herself set her on fire. 5. P.W.13 Dr. Umesh Chandra Sinha is the Doctor who conducted the Post Mortem Examination on the dead body of the deceased. P.W.14 Mahendra Prasad Singh is the I.O. who conducted the investigation of the case. 6.The Doctor (P.W.13) who conducted the Post mortem on 24th March 1996 at 4:30 P.M. deposed that he found the following ante mortem injuries on the person of the deceased : i) Superficial burn deep at places all over the body, except upper portion of scalp, both axilla, lower part of abdomen perineum and some portion of both lower legs. Blisters present at places, skin peeled off at places. 5 Area of redness and oedema between burn and normal skin. ii) The inner lining of trachea bronchus contained fine carbon particles. iii) Substance used was dry heat (flame). Time elapsed since death was within 24 hours. 7. The informant (P.W.11) deposed in his evidence that after marriage, the appellants always used to demand money and due to non-fulfilment of the demand she was being abused and beaten. He further deposed that seeing her harassment, he had brought the deceased’s three daughters and one son to his house and was keeping them with him. He also deposed that the deceased was in her Maika and that in the month of January 1996, the deceased’s husband had taken the deceased from her Maika to her Sasural house on the pretext that his (husband’s) mother had to undergo operation. He further deposed that on 24th March 1996 at 6:00 A.M. he came to know that the appellants and mother-in-law of the deceased had killed her by setting her on fire. Learning this, he along with some of his relatives went to deceased’s Sasural house and there he found that deceased’s dead body was lying on a Chouki in the house. He does not say about presence of anybody in the house, though he stated that he had learnt there that the deceased had been set on fire by means of burning wood of Chulha in the house, but he does not say from whom and when he learnt this and stated that he had filed a written report before the Police Station. He identified his signature (Ext-2) on the written report. He also deposed to have 6 filed a protest petition during investigation. He further deposed in his cross-examination that as soon as he arrived in deceased’s Sasural house, accused persons fled away. 8.Thus the informant says to have gained hearsay knowledge about appellants having killed the deceased by way of burning her. He says that as soon as he reached the deceased’s Sasural house, accused persons were seen fleeing away. Thus the informant has given only a hearsay account about the occurrence. 9.The informant says that when he reached deceased’s Sasural house, the appellants and the mother-in-law (now dead) of deceased were seen fleeing away. Admittedly, the occurrence took place in the evening and he (informant) arrived at the P.O. house in the next morning. In this context, the evidence of P.W.10 Prakash Kumar, one of the sons of the deceased, who was living with the deceased and whose evidence will be discussed in detail later on, is relevant where he stated that after burning the deceased, his father, grand father and grand-mother had fled away from the house. Thus, when the appellants had fled away from the house in the evening they could not be seen fleeing away in the next morning when he had gone there. It appears that the informant has purposely introduced this evidence in order to implicate the appellants. The informant says about the demand of money and torture and harassment of the deceased due to non- fulfilment of the demand. The death is also stated to have 7 occurred due to burn injury or under abnormal circumstances, but only this much of the circumstances is not sufficient in this case to draw an adverse inference in order to hold the appellants liable for death, inasmuch as the charge is not under Section 304(B) IPC. In this case the charge is simpliciter under Section 302/34 IPC and, therefore, the offence of committing murder by way of setting the deceased on fire is required to be proved through cogent and reliable evidence. The informant adduced only hearsay evidence saying that he learnt that the deceased had been set on fire at the hands of appellants. He does not mention from whom and when he learnt this. Thus, the informant’s evidence does not indicate any concrete and reliable evidence to show the commission of the offence and the complicity of the appellants. 10. The next and important witness is P.W.10 Prakash Kumar, the son of the deceased who was living with her. At the time when this witness was deposing in court, he was aged about 9 years and at the time of occurrence, he was aged merely 5 - 5 ½ years. In his examination-in-chief he adduced a very short evidence stating that his mother (deceased) was dead and that his father, grand-father and grand-mother had killed his mother by burning her with burning wood of Chulha. In his cross-examination he has stated that that day there was no rice, Dal, Atta etc. in the house. The wood would have been burnt for the propose of cooking meal, but this becomes doubtful why 8 Chulha would be fired with wood when there was nothing in the house to be cooked. It appears that the story of burning of Chulha has been introduced in order to support the story of burning of the deceased with burning wood of Chulha. P.W.10 further deposed that when the Sari of his mother had caught fire, she had cried for help but nobody had gone to help her. He also deposed that his mother had fallen on the ground and she was crying for help and she died there. He further deposed that at the time when his mother burnt, his grand-father and grand- mother fled away from there. This witness states that the appellants had set the deceased on fire. The defence case is that this witness has been tutored to give false evidence in this regard. The attention of this witness has been drawn towards his previous Police statement and he has denied that he had not stated before Police as to how his mother burnt and who had set her on fire. In this context the evidence of the I.O. (P.W.14, Para-29) is that this witness (P.W.10) had not stated before him (I.O.) that his father, grand-father and grand-mother had killed his mother (decedased) by setting her on fire with burning wood of Chulha. The I.O. has stated that there was a Chulha near the Gali in the house and that this witness (P.W.10) had indicated towards Chulha saying that his mother burnt by the fire of the Chulha and on being questioned as to how she burnt and who had burnt her, this witness had kept mum and he had not disclosed anything. Thus, P.W.10 who is the only witness on the 9 point of the appellants setting the deceased on fire has not disclosed this fact to the I.O. at the earliest time when the I.O. had visited the P.O. and had asked this witness about the occurrence. This witness has remained with the informant for about 4 years after the occurrence and then he came to depose in the trial court. In such circumstances when this witness had not disclosed before the I.O. immediately after the occurrence about the appellants setting the deceased on fire, it cannot be completely ruled out that this witness has been tutored to say about the occurrence, implicating the appellants in his evidence. In the circumstances, the evidence of P.W.10 that the appellants had set the deceased on fire appears to be full of doubt and it does not inspire any confidence. It is never safe to place any reliance on P.W.10 with regard to that part of evidence that the appellants had set the deceased on fire. In such view of the matters, evidence of this witness is not reliable and trustworthy. 11. P.W.5 Kapildeo Prasad, Mama of the deceased, P.W.6 Sanjay Kumar, brother of the deceased and P.W.9 Santosh Kumar, cousin of the deceased all are the family members of the informant and they are stated to have gone to deceased’s Sasural with the informant, after knowing about the incident. All these witnesses have deposed on similar lines that when they went to the deceased’s Sasural with the informant in the evening, they found that the dead body of the deceased was lying in the house in burnt condition. They also stated that they 10 had seen the appellants and the deceased’s mother-in-law (now dead) fleeing away in the northern side of the house and the two children, namely, Prakash (P.W.10) and Anjali (not examined) were weeping in the house and on being asked Prakash had disclosed that the appellants and their grand-mother had burnt the deceased with the burning wood of Chulha . 12. P.W.5 stated at Para 15 of his evidence that the written report as filed by the informant was in his (P.W.5’s) writing. Thus, these witnesses tried to establish through their evidence that the appellant and the mother-in-law (now dead) of the deceased were seen fleeing away in the northern side of the house and that they had found the two children of the deceased weeping and out of them, one Prakash (P.W.10) had disclosed before them that the appellants and the mother-in-law had killed her by setting her on fire with the burning wood of Chulha. In this context the defence drew attention towards the evidence of the I.O. indicating that these witnesses had not stated before the Police that they had found the two children weeping in the house and that out of them Prakash (P.W.10) had disclosed before them about the killing of the deceased by way of setting the deceased on fire by the burning wood of Chulha at the hands of appellants. The I.O. (P.W.14) at Para-22, 23, 24 and 27 of his cross-examination stated that these witnesses had not stated before him that they had seen the appellants fleeing away in the northern side of the house and that the two children, namely, 11 Anjali and Prakash of the deceased were found weeping in the house and further that on being asked, Prakash had disclosed that the appellants and the mother-in-law of the deceased had killed her by setting her on fire by burning wood of Chulha. 13. Thus, P.Ws.5, 6 and 9 who claimed to have seen the appellants fleeing away in the northern side of the house and to have learnt from deceased’s son Prakash (P.W.10) about the appellants having killed the deceased by setting her on fire by the burning wood of Chulha is an addition for the first time in their evidence, when they came to depose in court. At the earliest time, when they gave their statement before the Police about the occurrence, they had not stated any such facts. In such view of the matters it appears to be an afterthought and, as such, introduced in the evidence subsequently for the purpose of implicating the appellants in the offence alleged. 14. Besides this, there are other circumstances also. P.W.5 is the person who had gone with the informant to deceased’s Sasural where the dead body of the deceased was found and who had written the written report about the occurrence in his pen and the informant had filed the same at the Police Station after putting his signature. In the written report there is no whisper of the fact that the two children of the deceased were found weeping in the house and that on being asked one of the children, Prakash had disclosed about the appellants having killed the deceased by setting her on fire by 12 burning wood of Chulha. This is very important aspect of the case. Had the informant or the P.Ws. 5, 6 and 9 who had gone with him (informant), known about such facts, it must have found place in any manner in the written report. But the written report is quite silent in this regard. It goes to show that at the time when the written report was prepared, no such fact was within the knowledge of the P.Ws 5, 6 and 9. It is also important to note that the informant (P.W.11) himself does not say about finding of the deceased’s two children weeping there in deceased’s Sasural and disclosure by one of the children, namely, Prakash of the act of killing of the deceased by setting the deceased on fire at the hands of the appellant with the burning wood of Chulha. In such view of the matters, there cannot be any conclusion other than this that these witnesses have subsequently introduced this story in their evidence to implicate the appellants. 15. There are no other witnesses stating anything material to be considered in the context of the offence for the purpose of proving the case of prosecution. 16. Thus summing up the evidence, facts and circumstances of the case and on considering the broad probabilities, we find that the prosecution has not been able to prove the charge beyond shadow of reasonable doubt. 17. Accordingly the charge is held not proved and the appellants are acquitted of the same. In the result, the 13 judgment of conviction and order of sentence as passed by the learned trial court are set aside and the appeal is allowed. Appellant No.2 Lutan Sah is on bail. He is discharged from the liability of the bail bond. Appellant No.1 Arun Sah, who is in custody is ordered to be set at liberty forthwith, if not required to be detained in any other case. High Court, Patna Dated 19th Nov.09. NAFR/Jay. (Chandra Mohan Prasad,J ) (Dharnidhar Jha,J) Jay/ ( C. M. Prasad. J. )