High Court
Case Details
Crl.A. 134/2009 BEFORE HON’BLE MR. JUSTIC K. SREEDHAR RAO HON’BLE MR JUSTICE B. D. AGARWAL K. Sreedhar Rao,J. The material-facts of the prosecution case disclosed that one Minakshi M ahato was the wife of the accused. The accused who had love affair with Minakshi Mahato had eloped her. A complaint was lodged by the father of Meenakshi with t he police at about 11.30 PM(post meridiem) on 22.8.2005 ~ as per exhibit 2 ~ for abducting his deceased daughter. The parents of the girl did not approve the m arriage, but, however, later on they compromised with the fact situation and mar riage was performed. The accused and the deceased lived for six months in the ma trimonial home and thereafter there was some discordance between the husband and the wife and the deceased was staying in her parental home at the time of the i ncident. 2. PW2, the father of the deceased, has stated that on 21.8.2005 when he ca me home from the market he saw the accused standing in his courtyard and at abou t 3.15 PM the accused and deceased left for the house of the accused on the scoo ter. Around one-and-a-half hours later, PW6 and PW7 came to the house of PW2 an d informed him that they had seen the accused fast-riding a scooter and the hawa ii chappals of the deceased littered on a bridge over river Sesa and somebody st ruggling on the water and getting drowned in. PW6 and 7 told PW2 that they suspe cted that his daughter Minakshi might have fallen in the river and therefore the y have come to his house to make an enquiry of her. PW2, along with his people, rushed to the bridge to find hawaii pair of the deceased littered on the overpat h. The dead body of the deceased was traced the following day at about 7 AM(ante meridiem). The post-mortem report disclosed that the death was on account of as phyxia to the drowning. Police recorded statements of the material-witnesses, in cluding PW6 and 7. After completion of the investigation, the final report was f iled, charging the accused for committing an offence under sections 304(B)/201/3 4 of the IPC. 3. PW2 has stated that cruelty was perpetrated on his daughter by the accus ed and his mother, who is accused No. 2 and that accused 1 had caused the death of his daughter by pushing her in the river.
Legal Reasoning
4. The accused 1 and 2 were charged for committing an offence under section s 498(A)/302 of the IPC. The trial court finding that the charge under section 4 98(A) of the IPC was not proved, acquitted both the accused, but convicted the a ccused 1 under section 302 of the IPC. Hence this appeal. 5. In the trial court, the material-witnesses were examined by the prosecut ion. The PW2 is the complainant and father of the deceased and PW1 is the uncle of the deceased. The evidence of PW1 disclose that the accused took the deceased out of her house on his scooter on the pillion on the day in question and later killed her and threw her dead body into the river. PW1 is witness to the inques t(panchnama). 6. PW6 and 7 are witness to the incident, but they came to know about the i ncident immediately from some cowboys standing near the bridge and also see the accused going on the scooter in a speeding manner. They came to know from cowboy s that a person had fallen into the river from the scooter and they came and inf ormed the fact immediately to PW2, which made the PW2 and 6 to go for a search. Thereafter, a complaint was lodged with the police on 22.8.2005 and the dead bod y of the deceased was traced the following day. The doctor who conducted the post-mortem was examined as PW9. According 7. to the opinion of the doctor the death was: (cid:28)due to asphyxia as a result of ante -mortem drowning. Injuries described were post-mortem and caused by aquatic anim al(Water animal). She was pregnant and approximate duration of her pregnancy was 4-1/2 months. Approximate time since death 18 to 24 hours (cid:29). 8. ng circumstances to prove the guilt of the accused: The above material-evidence of the prosecution has projected the followi i) Last-in-circumstance of the accused and the deceased together going on a scooter to the house of PW2 and immediately after some time the deceased was fo und drowned; ii) The conduct of the accused being indifferent to the deceased after falli ng from the scooter and going ahead on a scooter speedily the accused met PW6 an d 7 and made mutual courtesy enquiries. The conduct of the accused shows that he was indifferent to the incident of fall of his wife in the river. If it was a c ase of an accidental fall, the accused would have stopped the scooter and made e fforts to save his wife from being drowned by taking help of the people; iii) sphyxia and ante-mortem to the drowning. The post-mortem report would disclose that the death was on account of a 9. The accused took a plea of total denial of ever visiting the house of PW 2 and taking his wife on the scooter. The trial court upon consideration of the above circumstances had found the accused No. 1 guilty of offence under section 302 of the IPC. 10. lly went through the evidence and other materials placed on record.
Legal Reasoning
Heard learned public prosecutor and counsel for the appellant and carefu 11. It is true that the prosecution has convincingly established the last-in -circumstance. There is no basis to discard the evidence of PW2 with regard to t he last-in-circumstance. However, with regard to the actual transaction of the d rowning of the deceased, there appears to be some serious contradictions in the evidence placed by the prosecution. 12. The evidence of PW6 and 7 disclosed that when they were going towards th eir village, near the bridge they found the accused going on a scooter alone in a speeding manner and they exchanged courtesy enquiries. PW6 and 7 further proce eded and came onto the bridge and find a pair of hawaii chappal and also some co wboys standing on the bridge. The cowboys informed the PW6 and 7 that a person h ad fallen into the river from the scooter. Immediately PW6 and 7 went and inform ed PW2. Here, we find there appears to be a total inefficiency on the part of th e investigating officer in conducting the investigation. The investigating offic er has not made any efforts to find out the cowboys who informed the PW6 and 7 a nd they were not interrogated. Their statements were not recorded and cited as w itness by the investigation. The said cowboys are the pivotal witnesses to the i ncident. The version given by the PW6 and 7 is only the hearsay version what the cowboys had seen. If the version stated by the PW6 and 7 in their evidence is c onsidered, it does not suggest that the accused had any mens rea element of maki ng the deceased fall into the river from the scooter. The version of the PWs 6 a nd 7, as told by the cowherds is to the effect that the deceased had fallen into the river from the scooter. The manner how the deceased fell into the river can not be a matter of conjecture. It is not for the Court to enter into conjectures and surmises to say whether a fall on account of rash-and-negligent driving or an accidental fall into the river. All these incriminating aspects should have b een a matter of evidence and the cowboys who had seen the incident being the mat erial-witnesses should have been examined and cited by the investigation and the y should have been examined before the Court to appreciate the manner in which the deceased fell into the river, whether such a fall amounts to an offence. The evidence of PW6 and 7 with regard to the version, which was from the cowboys, e xculpates the accused, and does not suggest that he has committed offence under section 302 of the IPC. The trial court, perhaps, swayed by the conduct of the a ccused after the incident of fall from the scooter and the last-in-circumstance has convicted the accused for committing offence under section 302 of the IPC. H owever, on a deep scrutiny we find that the accused is entitled to the benefit o f the doubt. Accordingly the appeal is allowed. The accused is acquitted. He is directed to be released forthwith if not required to be detained in any other ca se. 13. rities and to the trial court. The operative portion of this order be forthwith sent to the jail autho