=============================================== Rabindra Kumar Ambastha @ Lalwa son of Late Ram Narayan village Mungeriganj, P.S.& v. The State of Bihar
Case Details
Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 1 of Prasad, resident IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.9 of 1991 =============================================== Rabindra Kumar Ambastha @ Lalwa son of Late Ram Narayan village Mungeriganj, P.S.& District Begusarai .. .. .. Appellant Versus The State of Bihar .... Respondent with Criminal Appeal (DB) No. 12 of 1991 =============================================== Saraswati Devi wife of Late Nageshwar Prasad, resident of Begusarai town,P.S. & District Begusarai .... .... Appellant Versus The State of Bihar .... ... Respondent Both the above appeals are against the judgment of conviction and order of sentence dated 20.12.1990 passed by Shri Swaroop Lal, Ist Additional Sessions Case No.89 of 1982/63 of 1986. =============================================== Appearance : (In CR. APP (DB) No. 09 of 1991) Begusarai Sessions Judge, in For the Appellant: M/s Suraj Narayan Prasad Sinha, Birendra Kumar Sinha, Sr.Advocates, Manbansh Prasad, Pramod Man Bansh, Jitendra Narain Sinha,Shikha Roy, and Rohit Kumar, Advocates (In CR. APP (DB) No. 12 of 1991) For the Appellant: M/s Akhileshwar Prasad Singh Sr.Advocate and Sandip Kumar Gautam, Advocate For the Respondent : Mr. Ajay Mishra, Addl.P.P (in both the appeals) =============================================== CORAM: HONOURABLE MR.JUSTICE SHYAM KISHORE SHARMA AND HONOURABLE MR. JUSTICE AMARESH KUMAR LAL (Per: HONOURABLE MR.JUSTICE SHYAM KISHORE SHARMA) ORAL JUDGMENT Date: 06-08-2013 -------- Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 2 Both the above appeals have been heard together and are being disposed of by this common judgment as they have arisen out of one occurrence. 2. By the impugned judgment dated 20.12.990 passed by learned Ist Additional Sessions Judge, Begusarai, the appellants of both the appeals have been convicted under Section 302/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. Appellant Rabindra Kumar Ambastha @ Lalwa of Cr.Appeal No. 09 of 1991 has further been convicted under Section 201 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for five years. One accused Laxmi Devi was not found guilty, so she was acquitted of the charge. 3. Fardbeyan of the informant Sub- Inspector of Police Braj Bihari Prasad, Officer-in-charge, Begusarai Police Station (P.W.8) incorporates a confidential information received by him at 7.00 P.M. on 08.11.1978 with regard to suspected killing of Nageshwar
Legal Reasoning
Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 3 Prasad, a retired teacher of B.P.High School. The information also disclosed that the efforts were being made to disappear the dead body. After receiving information, a team consisting of himself, Sub-Inspector of Police G.P.Ghosh (not examined), Sub-Inspector of Police Raghunath Tiwari (not examined), Assistant Sub- Inspector of Police Birendra Prasad (not examined) and constables reached the house of Nageshwar Prasad (deceased) in Mungeriganj Mohalla. All the doors and windows were bolted. After much efforts and threatening, an old lady opened the door. Foul smell suspected to be of human body was coming, blood was found on eastern verandah, in a room of another courtyard upon which water was found poured and in the east north corner of that room blood stains were found. Efforts were made to wipe out the smell after lighting agarbatti and spraying the scent. A blood stained quilt was found outside the house. Wife (Saraswati Devi- appellant in Cr.Appeal (DB) No. 12 of 1991) and Laxmi Devi (mother-in-law) (since acquitted) Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 4 could not disclose anything regarding Nageshwar Prasad. During search, a telephonic information was received that one mutilated dead body has been thrown near village Maniappa. Hands and feet of the dead body were tied. The dead body was having half terricot shirt, white underwear and was wrapped with a white chadar. Another Sub-Inspector of Police Raghunath Tiwary (not examined) along with one constable was sent to Maniappa village. They reached there and saw the dead body in presence of many villagers including Ram Naresh Kuer (P.W.5). They told that the dead body was of Nageshwar Prasad as Nageshwar Prasad was a teacher, so his identification was made. The persons present there told that some time before a jeep carrying the dead body came and threw the dead body and the jeep proceeded towards village Rampur. The jeep was of green colour. The dead body was brought to Begusarai and was identified by wife of the deceased. It was suspected that wife of the deceased Saraswati Devi was carrying illicit relationship with Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 5 Birendra Kumar Ambastha and once both have eloped. Wife of Nageshwar Prasad was very young and Nageshwar Prasad was about 60 years old. It was the second marriage of Nageshwar Prasad. Nageshwar Prasad found his wife in objectionable position with Rabindra Kumar Ambastha which had resulted into altercation. So it was suspected that Nageshwar Prasad has been done away by Rabindra Kumar Ambastha on being assisted by Saraswati Devi, Laxmi Devi, mother in-law of the deceased and some strangers. Seizures were made and seizure list (Ext.5) was prepared. The fardbeyan resulted into institution of the case. In course of investigation, inquest report (Ext.4) was prepared, post mortem report (Ext.6) was obtained from hospital, place of occurrence was inspected, statements of the witnesses were recorded and when the case was found to be true, chargesheet was submitted. Cognizance was taken and after completing other paraphernalia case was committed to the court of Sessions where charge under Section 302/34 Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 6 of the Indian Penal Code was framed against all the three accused. Further charge under Section 201 of the Indian Penal Code was framed against Rabindra Kumar Ambastha. Charges were explained to the accused persons to which they pleaded innocence. Hence trial proceeded. 4. The defence of the accused persons was of innocence and false implication at the behest of inimical hands of Saraswati Devi who were determined to ruin her forever. Their further defence was that Saraswati Devi has no motive to kill her husband as he was her bread earner and Sarsawati Devi being mother of two children was not in a position to earn anything and was fully dependant upon her husband for her livelihood. So there cannot be any motive. The defence of accused Rabindra Kumar Ambastha was that except suspicion, there was nothing against him. 5. Before the trial court, the prosecution in order to substantiate its case has examined nine witnesses. They are: P.W.1 Mahesh Prasad Ribriwal, P.W.2 Dayawati Devi, Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 7 P.W.3 Putul Devi, P.W.4 Prabhansh Kumar Singh, P.W.5 Ram Kumar, P.W.6 Ram Bachan Singh, P.W.7 Ram Naresh Sharma, P.W.8 is Braj Bihari Prasad and P.W.9 Rajendra Prasad Singh. 6. P.W.1 is neighbour of the deceased and a witness of seizure. P.W.2 was maid servant of he deceased who was aware with all the happenings of the house but she did not support any part of the occurrence and has been declared hostile. P.W.3 is daughter of the deceased. P.W.4 has been examined as a witness who has stated that on 23.04.1979 i.e. after about more than four months the police had taken his statement during investigation. He was examined as a person who had thrown the dead body from the jeep which was hired by Lalwa alias Rabindra Kumar Ambasatha. P.W.5 and P.W.7 are witnesses of the inquest report. P.W.6 is owner of the jeep on which the dead body of Nageshwar Prasad was carried but he has stated that he has not given any statement before the police. P.W.8 is the informant and Investigating Officer of the Case. P.W.9 is Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 8 doctor who has held post mortem over the dead body of the deceased. 7. The trial court after considering the evidences on record and after hearing the arguments of learned counsel of the parties opined that that the prosecution has succeeded in proving the charges against these two appellants beyond the shadow of all reasonable doubts whereas accused Laxmi Devi was found not guilty. 8. This Court is required to reappraise the evidences on record to see as to whether there was materials on record to prove the charges against the appellants beyond the shadow of all reasonable doubts or not. 9. Before taking up the material witnesses, it would be appropriate to go through the evidence of the doctor who is P.W.9. On 09.11.1978 while being posted as Civil Assistant Surgeon in Begusarai Hospital at 11.00 A.M. he held post mortem over the dead body of Nageshwar Prasad whose body was identified by constable sheikh Haffiz, Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 9 Chaukidars Dorik Paswan and Shankar Gope (all not examined). The doctor noted following ante mortem injuries on the person of the deceased: i. both the hands and feet were tied together with strong rope. The whole body blotted with multiple scattered blisters over upper limbs and front of the abdomen. The face was blue, tongue protruded and betten between teeth. The eyes prominent with conjuncture congested. On dissection of chest - there was echymosis under the skin. On further dissection the ribs 3rd, 4th, 5th and 6th of both side of the chest were fractured in midclavicular line. The sternum was also fractured tranvasely at the level of 3rd further rib. On dissection there haemorrhage under was the sternum -fluera on both sides were ruptured. Both lungs were lacerated and congested. Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 10 ii. Incised wound on the upper part and front of the left arm. Size 4”x3” bone cut. In the opinion of the doctor, the death was due to asphyxia wound as a result of pressure on the chest. Injury no.2 was caused by sharp cutting heavy weapon. Time elapsed since death was about 48 hours. Injury no.1 was sufficient in ordinary course of nature to cause death. 10. Learned counsel for the appellants has submitted that though the doctor has opined that the death was due to asphyxia but he in paragraph 4 of his deposition has stated that the dead body was in the state of decomposed position which was clear from blister. The body was already decomposed, so it has been argued that it was difficult to identify a decomposed body. It has been argued that in fact some other dead body was brought and the police roped the accused persons with this case. 11. Informant (P.W.8) is the Investigating Officer of the case. He has stated that confidential information was Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 11 received by him on 08.11.1978 regarding killing of Nageshwar Prasad. This witness further disclosed that the information further divulged that the dead body was being made to disappear. This witness further stated that after entry of the Station Diary, the team proceeded. When the informant reached the house of Nageshwar Prasad he recorded his own statement. The P.O. house was the house situated in Mungeriganj Mohalla of Begusarai. The doors and windows were found bolted from inside. Door was not opened despite much persuasion but when the informant tried to break the door, then one old lady opened it. As soon as the informant entered into the house, he found foul smell resembling to the smell of human corpse. Blood was found in the vicinity. Besides the old lady, wife of Nageshwar Prasad was also there. This witness further stated that the efforts were made to vanish the foul smell by sprinkling of scent. Some blood stains were found in veranda. At that very time, an information was received regarding throwing of Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 12 a dead body at Mahiappa village. So Sub- Inspector R.N.Tiwary was sent there. In the meanwhile, the Superintendent of police reached there. R.N.Tiwary came with the dead body. The inquest report was prepared. Blood was found hither and thither. One rope, which was suspected to be used for killing, was there. Vomiting was also found there. Seizure of all these things was made in presence of P.W.1 Mahesh Prasad Ribriwal but he has been declared hostile. P.W.2 Dayawanti Devi has also been declared hostile. This witness further stated that the place of occurrence was inspected and the statements of the witnesses were recorded. The motive given by the informant was that on 21.10.1978 Nageshwar Prasad (deceased) had given a petition before this witness that his wife was carrying illicit relationship with Rabindra Kumar Ambastha alias Lalwa. This witness has been cross-examined in detail but he remained sticking to his version which was initially given by him in the written report. He is a Police Officer and so well aware with Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 13 the veracity of examination-in-chief and cross- examination and he has adhered to his version. Now his version has to be tested and compared with the versions of other witnesses. 12. P.Ws. 1 and 2 have been declared hostile. P.W.3 has stated that after retirement, her father started living with Saraswati Devi in his house. Mother of this witness has died earlier. This witness further stated that Saraswati Devi had illicit relationship with Lalwa alias Rabindra Kumar Ambastha and both had eloped once. Her conduct was the reason of frequent torture and threatening of her father. This witness in her cross-examination has stated that that six months prior to arrival of Saraswati Devi, her mother had died. She has stated that she was not examined before the police. 13. Learned counsel for the appellants has submitted that P.W.3 was an imposter who was set up by the prosecution. This witness has claimed herself to be the daughter of Nageshwar Prasaad and was in possession of certificate Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 14 granted by the school but that certificate was not produced in the court and that was done deliberately. Her husband was residing in Jamalpur in the District of Munger and there he was having property. She is the claimant of the house of Nageshwar Mahto. Her sister was also claimant of that house. Her sister was not examined. 14. P.W.4 is the person who was examined by the police on 23.04.1979 wherein he has stated that he had thrown the dead body from the jeep at the behest of accused persons. He has further stated that he has escaped to his maternal house but the police started torturing his family members, so he came and became a witness. P.W.5 is a witness of inquest report. P.W.6, the jeep owner, has denied that he has given any statement before the police. 15. It has been argued in behalf of the appellants that there is no material which could have established the charge under Section 302 of the Indian Penal Code as neither there is any direct evidence nor circumstantial Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 15 evidence. On the other hand, learned Addl.P.P. supporting the judgment has submitted that though there is no direct evidence either with regard to killing or making effort to disappear the dead body but circumstantial evidences are enough to prove the guilt of the appellants. 16. The prosecution has adduced evidence in this case that the deceased had retired prior to the occurrence and he was having full apprehension from his wife. The informant has stated about apprehension of the deceased and that apprehension was communicated through a written application. It has been submitted by learned counsel for the appellants that once documentary evidence is available, then oral evidence is not required to be given. 17. Informant/Investigating Officer has not been able to explain as to happening of the petition which was given by the deceased prior to his death. The said petition was with regard to motive. Motive, in itself, is not required to be proved in every case. The motive Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 16 is always in the mind of the criminal. Once motive is alleged, then it has to be established. The motive in this case has been communicated by the deceased through a petition but that petition was not produced before the court and no reason has been explained for withholding an important document. The motive as disclosed by the deceased would have explained the circumstances which ultimately led to his killing but that was not done and the prosecution has not explained as to why the petition filed by the deceased was withheld. 18. The doctor P.W.9 has held post mortem over the dead body of the deceased at 11.00 A.M. on 09.11.1978 and he gave the time of death about 48 hours earlier. The doctor’s opinion was that dead body was decomposed. The charge in the present case is that the murder took place on 6/7th November, 1978 and the post mortem was held on 09.11.1978. The time has thus varied to some extent.
Legal Reasoning
19. Learned counsel for the appellants has challenged the identification of the dead Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 17 body and it has been submitted that his body was not identifiable which has come through the evidence of the doctor as well as the inquest witnesses. P.W.7 in paragraph 4 of his evidence has admitted that the dead body had turned ugly. The doctor (P.W.9) has not found any permanent mark of identification of the dead body. The persons who identified the dead body were not put in witness box. It has been argued that it was difficult to say that decomposed body was of Nageshwar Prasad. 20. Another aspect on which the learned counsel for the appellants has also asserted is that appellant Saraswati Devi had no motive to kill her husband as he was her bread earner. On the date of occurrence, she was in her 30’s and was competent enough to comprehend the future of losing her earning husband. So it has been submitted that at any stage of imagination it cannot be comprehended that appellant Saraswati Devi connived to ruin her own life. Though P.W.4 has been examined under Section 164 of the Code of Criminal Procedure but the Judicial Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 18 Officer who recorded his statement has not been examined. There is no explanation as to why the statement of P.W. 4 was not taken by the police for such a long period. P.W.4 has made statement before the court that he has not made any statement before the police. His evidence is the only evidence which has been relied by the prosecution so far proving the charge under Section 201 of the Indian Penal Code is concerned. P.W.6 to some extent could have supported the statement of P.W.4 but his admission that he was not examined by the police speaks a lot and thus it cannot be said that the statement of P.W.4 is corroborated so far proving the charge under Section 201 of the Indian Penal Code is concerned. 21. In a case in which there is no eye witness and the case is based on circumstantial evidence, the onus lies upon the prosecution to explain why, where, when, how and who committed the crime but these questions have not been answered by the prosecution and if any one is lacking, then it can be said that the threat by Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 19 the offender with the offence has not been cleared. The motive alleged through a letter has not been produced by the prosecution though it was in possession of the informant. The oral evidence cannot substitute documentary evidence. It has been claimed about seizures of blood stained earth and blood stained quilt and those were sent for chemical examination but the reports of the same were not received. In absence of report of chemical examiner it was very difficult to say that the seized blood was of human being or something else. The circumstances which could have linked the appellants with the offences have not been explained beyond the shadow of all reasonable doubts by the prosecution. Once doubt is created, then the benefit of that has to be given to the accused. Accordingly, the appellants deserve acquittal. 22. In the result, both the appeals are allowed. The judgment of conviction and order of sentence of the appellants are set aside. The appellants of both the appeals are Patna High Court CR. APP (DB) No.9 of 1991 dt.06-08-2013 20 acquitted of the charge. Since the appellants are on bail, they are discharged from the liabilities of their respective bail bonds. (Shyam Kishore Sharma, J) (Amaresh Kumar Lal, J) Patna High Court, Patna Dated,the 6th August,2013 Tahir/-(NAFR)