Rita Devi. Wife of Late Dilip Ram Chandravanshi, resident of Village-Bilaspur, P.O. & P.S v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (D.B.) No. 967 of 2018 --------- Rita Devi. Wife of Late Dilip Ram Chandravanshi, resident of Village-Bilaspur, P.O. & P.S. Nagar Untari, District-Garhwa, …. Appellant Jharkhand …. Versus The State of Jharkhand With …. …. Respondent Cr. Appeal (D.B.) No.1007 of 2016 Sultan Hawari, son of Khalil Hawari, resident of village- Salaiya, P.O. and P.S. Bindhamganj, District-Sonebhadra (U.P.) …. …. Appellant Versus The State of Jharkhand …. …. Respondent --------- (Against the judgment of conviction and order of sentence dated 19.12.2015 and 21.12.2015 respectively passed by the Addl. Sessions Judge-II, Garhwa in S.T.No. 137 of 2013, arising out of Nagar Untari P.S. Case No. 219 of 2012) --------- P R E S E N T SRI ANANDA SEN, J. SRI SUBHASH CHAND, J. For the Appellants : Ms. Leena Mukherjee, Amicus Curiae [In Cr. Appeal (D.B.) No.967/18] : Mr. S.T.Sajid, Advocate : Mr. Ashok Kumar, Advocate For the State : [In Cr. Appeal (D.B.) No.1007/16] Mrs. Ruby Pandey, A.P.P. [In Cr. Appeal (D.B.) No. 967/18] : Mr. Suraj Deo Munda, A.P.P. [In Cr. Appeal (D.B.) No. 1007/16]
Legal Reasoning
For the Intervenors : Mr. Manoj Kumar Choubey, Advocate [In Cr. Appeal (D.B.) No. 1007/2016] --------- Order No. 10/Dated: 08.04.2024 Per Subhash Chand, J. Since both these Cr. Appeals arise out of the same impugned Judgment, they are taken up together and are being disposed of by this common Judgment. 2. The aforesaid Cr. Appeals are directed against the Judgment of conviction and order of sentence dated 19.12.2015 and 21.12.2015 respectively passed by the Addl. Sessions Judge-II, Garhwa in S.T.No. 137 of 2013, arising out of Nagar Untari P.S. Case No. 219 of 2012 whereby and whereunder the appellants have been convicted and sentenced to undergo rigorous imprisonment for life for the offence committed under Section 302 of the Indian Penal Code and fine of Rs.10,000/- each. In default of payment of fine amount, they shall undergo for further R.I. for one year. So far as the offence under Section 201 of the I.P.C. is concerned, both the convicts are awarded R.I. for two years as also awarded with a fine of Rs.2,000/- each, failing which they shall to go to another R.I. for six months. 3. The brief facts of prosecution case leading to these Cr. Appeals are that the written information of this case was given by Sub-Inspector Ambitabh Rai Station In-charge of Police Station, Nagar Untari, District-Garhwa with these averments that on 01.11.2012 at about 08:30 in the morning he had received information that in village Bilaspur in front of Gurudatt petrol pump N.H.-75 Main Road in a Line-Hotel a person had committed suicide by hanging in the night of 31.10.2012. The entry of this information was made at 08:40 in the General Diary of the Police Station concerned and Higher Officers were informed and he proceeded to the indicated place along with police force and on reaching there came to know that the owner of the Line-hotel Dilip 2 Ram Chandravanshi had hanged himself in a room. He reached in the room of deceased Dilip Ram Chandravanshi and saw the dead- body of him hanged with the ceiling fan with an electric cable and his both knees were touching to the wooden chauki. It appeared from the situation that the deceased Dilip Ram Chandravanshi was hanged with an electric cable after committing murder. The photographs were also clicked and one bear-bottle, mobile phone of deceased, broken bangles were also found. The seizure memo was prepared. After inspection of the place of occurrence and evidence available, it transpired that deceased Dilip Ram Chandravanshi was called at 10:30 and thereafter Sultan Hawari and the wife of deceased Rita Devi all drunk wine and the wife of deceased Rita Devi and Sultan Hawari both committed murder. After committing murder the dead-body was hanged with the help of the electric wire with the ceiling fan. On this written information case crime No. 219 of 2012 was registered under Section 302 read with 34 of I.P.C. against Rita Devi and Sultan Hawari. 4. The I.O. after having concluded the investigation filed charge- sheet under Sections 302/201/34 of I.P.C. against both the accused and the Court of Sub-Divisional Judicial Magistrate, Garhwa took cognizance and committed this case for trial to the court of Sessions Judge, Garhwa. And the Court of Sessions Judge, Garhwa transferred the case for trial to the Court of Additional Sessions Judge-II, Garhwa. 3 5. The trial court framed charge against both the accused under Section 302 read with 34 of I.P.C. and Section 201 of I.P.C. and charge was read over and explained to them and both the accused denied the charge and claimed to face the trial. 6. On behalf of prosecution to prove the charge against the accused persons in oral evidence examined P.W.1 Anju Kumari, P.W.2 Pabitri Kunwar, P.W.3 Kiran Devi, P.W.4 Tara Devi, P.W.5 Lila Devi, P.W.6 Chanda Devi, P.W.7 Man Mati Devi, P.W.8 Dr. Arun Kumar Singh, P.W.9 informant Amitabh Roy, P.W.10 Dilip Kumar Mallik Investigating Officer, P.W.11 Dhananjay Kumar Paswan, constable. 7. In documentary evidence filed Ext.1-Signature of Anju Kumari on the statement of 164 of Cr.P.C., Ext.2-Post-mortem report, Ext.3-Written report with registration, Ext.4 to 4/1- Two seizure list respectively, Ext.5-Formal F.I.R., Ext.6-Statement u/s 164 of the Cr.P.C. of Anju Kumari, Ext.7-Statement of Pabitri Kunwar u/s 164 of the Cr.P.C., Ext.8-Inquest report, Ext.9- Photograph of hanged dead-body, Ext. 9/1 & 9/2-Photographs of dead-body getting it down from the ceiling fan, Ext.9/3 and Ext. 9/4-envelope containing photographs, Ext.10-Chalan of dead- body, Ext.11 and Ext.12-confessional statements of Reeta Devi & Sultan Hawari respectively, Ext.13-Call details of mobile No.8009899292 of Bhartiya Airtel Ltd. Material Ext. I & II-Mobiles, Ext.III-Broken piece of bangle, Ext. IV-wire, Ext.V- Empty bottle of bear. 4 8. Statement of accused under Section 313 of Cr.P.C. was recorded who denied the incriminating circumstance against them and told themselves to be innocent. 9. No defence evidence was adduced on behalf of accused persons. 10. The learned trial court after hearing the rival submission of learned Counsel of parties passed the impugned Judgment of conviction and sentence as stated here-in-above. 11. Aggrieved from the impugned Judgment of conviction and sentence, the instant Cr. Appeal (D.B.) No. 967 of 2018 was filed on behalf of Rita Devi and Cr. Appeal (D.B.) No.1007 of 2016 was filed on behalf of Sultan Hawari. 12. We have heard the learned Counsel of parties and perused the material on record. 13. To decide the legality and propriety of the impugned Judgment of conviction and sentence passed by the trial court, the prosecution evidence is reproduced here-in-below for appraisal: 13.1 P.W.1 Anju Kumari. In her Examination-in-chief says that occurrence was of six months ago when her father Dilip Ram Chandravanshi was murdered. Occurrence happened in the night. At that time, she was at her house. Her mother Rita Devi, younger sister Anu Kumari and her father were there. Her father was murdered on 31.10.2012. She had gone to wash the cloths in the river and having come to her house she slept because of headache and stomachache. Her friend Rinku came and asked to go to bring 5 the grass. She accompanied her. Having heard the noise, she came to the house. Her father had brought vegetable. Sultan came to her shop by the Bike. Her father and Sultan both drunk wine. Thereafter altercation took place between them. Sultan pushed her father and dropped him on the ground and thereafter climbed on his body and killed him and body was hanged with the electric wire by the ceiling fan. Sultan asked her not to tell it to anyone otherwise she will also be killed. She alone had seen the occurrence. Her mother had caught hold of legs of her father and Sultan committed murder of her father. In cross-examination this witness says that the body of her father was hanged with the wire. Police came and brought down the dead-body. The door was closed from inside. The back-wall of the house was broken. She has told in regard to the occurrence to her relatives. She had seen her mother having caught hold of legs of her father and Sultan was assaulting. She did not shout. Her father has also become unconscious on account of over drinking. She also resided along with her parents. The witness Pabitri Kunwar, Tara Devi, Chanda Devi, Man Mati Devi all are her relatives. All came after having informed them over the phone. This witness denied this suggestion that her father had committed suicide. 13.2 P.W.2 Pabitri Kunwar in her Examination-in-chief says that the occurrence was of 31.10.2012. It was 12 O’ clock in the night. Her son Dilip was murdered at the house. At that time her son, Natini Anju and wife of the Dilip, namely, Nita were present and 6 she had gone to Arsali Bhawnathpur to take medicine. One Virendra told her over the phone that her son was murdered. After hearing the occurrence, she came at the house. Her grand- daughter Anju told that her mother Rita caught hold of the legs of her father and Sultan committed murder of her father. 13.3 P.W.3 Kiran Devi in her Examination-in-chief says that the occurrence was of 31.10.2012. It was 7 O’clock. Her brother Dilip Ram Chandravanshi was murdered. Having received the information over the phone, she came to know that her brother had been murdered. Her niece Anju Kumari told that her mother Rita Devi and Sultan both committed murder of her brother. 13.4 P.W.4 Tara Devi in her Examination-in-chief stated that she received the information that her brother Dilip Ram Chandravanshi had been murdered. After having received the information, she reached to her parental house and her niece Anju told her in regard to the occurrence that Rita and Sultan both committed murder of Dilip Ram Chandravanshi after having administered him with the wine. 13.5 P.W.5 Lila Devi in her Examination-in-chief says that on the date of occurrence she was in her in-law’s house and after having received the information reached to her parental house. Her sister-in-law Rita Devi had illicit relation with Sultan and she came to know how the occurrence took place. In cross- examination this witness says that she did not see the occurrence from her own eye. 7 13.6 P.W.6 Chanda Devi is also the sister of deceased. She came to her parental house from her in-law’s house after having received the information over the phone and came to know from her niece Anju Kumari that Rita Devi and Sultan both had committed murder of her brother. 13.7 P.W.7 Man Mati Devi says that deceased Dilip was her nephew. On the date of occurrence, she received the information from the son of her Gotni that Dilip had been murdered and reached to the place of occurrence Anju had told her that Sultan and Rita both committed murder of Dilip. 13.8 P.W.8 Dr. Arun Kumar Singh in his Examination-in-chief says that on 01.11.2012 he was posted as Medical Officer, Sadar Hospital, Garhwa. At 01:30 p.m. He conducted the postmortem on the dead-body of deceased- Dilip Ram Chandravanshi and found the following injuries: On general examination- rigor mortis was present on all four limbs. Eye was half open and congested mouth half open, tongue protruded. Mark of rope (about …” wide and …” depth) present over neck starting from thyroid cartiledge and running upward back and near angle of mouth to back part mark was absent in occipital region above 2” apart. On dissection- Skin adhere to subcutaneous tissue having petechial haemorrhage. Hyde bone fractured. Time since death 12 to 24 hours. Cause of death is due to asphyxia caused by hanging. Postmortem report has been prepared in his writing and signature and marked Ext.1. 13.9 P.W.9 Amitabh Roy in his Examination-in-chief says that on 01.11.2012 at 08:30 in the morning he had received the information that in line-Hotel one person had committed suicide. 8 After having made the entry in the G.D. of the Police Station concerned he reached to the place of occurrence and saw that the dead-body of Dilip Ram Chandravanshi hanged with a black colour electric wire by the ceiling fan. Knee of both the legs were touched on the wooden Chauki. He reiterated all the contents of the written information given by him. Written information is in his handing writing marked Ext.3. On the basis of the same the formal F.I.R. was prepared marked Ext.4. In cross-examination this witness says that at the place of occurrence the door of the room was closed. Anju is the eye-witness of the occurrence. No one had seen the occurrence except Anju. 13.10. P.W.10 Dilip Kumar Mallik Investigating Officer in his Examination-in-chief says that the investigation of this case was handed over to him. He prepared the inquest report of the deceased and the witnesses stated that the cause of death was hanging. Inquest report in his hand writing marked Ext.B. The photograph of deceased Dilip Ram Chandravanshi hanged with the ceiling fan which was handed over to him are produced in the Court marked Ext.9. Other photographs of the deceased are marked Ext. 9/1 to 9/2. All the three photographs were handed over to him by the Photographer. During investigation one NOKIA mobile, 16 ft. cable, broken bangles, one empty bottle of the bear were also recovered. Seizure memo of the same was prepared marked Ext.4. The two mobile phones were also recovered. The seizure memo of the same Ext. 4/1. Postmortem report of Dilip 9 Ram Chandravanshi is marked Ext.10. He recorded the statement of Anju Kumari. Thereafter inspected the place of occurrence also recorded the statement of Pabitri Kunwar. The statement of Kiran Devi, Tara Devi, Lila Devi, Chanda Devi and Man Mati Devi were also recorded by him. The confessional statement of Rita Devi was also recorded by him marked Ext. 11. He also recorded the confessional statement of Sultan Hawari marked Ext.12. Statement of Anju Kumari was also got recorded under Section 164 of Cr.P.C. In cross-examination this witness says that the house which is the place of occurrence comprised two rooms. The dead-body of the deceased was in a room of which wall was also broken. Window was also broken. He did not prepare the site plan of place of occurrence. No photographs were clicked of the broken window. No finger prints over the wine bottle were sent for examination. He did not record the statement of photographer. Only eye-witness of the occurrence is Anju Kumari who was 12 years old. The only one door was of the place of the house which was closed. He had not recorded in the case diary that the persons of the locality intruded in the room after having broken the wall. 13.11 P.W.11 Dhananjay Kumar Paswan. He produced the material Ext. I & II- Mobiles, Ext. III- Broken piece of bangle, Ext. IV-wire and Ext.V empty bottle of bear. In cross-examination this witness says that in regard to all the material exhibits he has no knowledge how and from where they were seized. 10 17. The conviction of the appellant is based on the testimony of P.W.1 Anju Kumari who is posed as an eye-witness of the occurrence. This witness was 12 years old on the date of occurrence and she has stated that she had seen that her father and Sultan both had drunk wine. Her father had also over drunk wine and she had seen that her mother Rita had caught hold of legs of her father and Sultan had assaulted her father. 18. So far as the testimony of P.W.2 Pabitri Kunwar, P.W.3 Kiran Devi, P.W.4 Tara Devi, P.W.5 Lila Devi, P.W.6 Chanda Devi and P.W.7 Man Mati Devi are concerned, all these are the relatives of the deceased and they reached to house of deceased and came to know in regard to occurrence from P.W.1 Anju. As such their evidence is hearsay. 19. The testimony of P.W.1 Anju Kumari is also found contradictory in itself as she has stated that her friend Rinku came and asked her to accompany to bring the fodder. Again she says that she came back to the house on raising alarm by her father who had come to the house having brought the vegetable and her father also told that he was not feeling well he would sleep. Further she says that Sultan came to the shop. Her Papa and Sultan both drunk bear-wine. Altercation took place between them. Sultan had climbed over the body of her father and killed her father. Thereafter body was tied with the wire by the ceiling fan. She also says that her mother Rita caught hold of the legs of her father and Sultan committed murder of her father. 11 20. In regard to the veracity of the testimony of this witness the testimony of P.W.8 Dr. Arun Kumar Singh becomes relevant. The Doctor who had conducted the postmortem of the deceased- Dilip Ram Chandravanshi has stated that there was mark of rope about … inch wide and … inch in depth present over the neck starting from thyroid cartiledge and running up ward backward crossing near angle of the mouth to back part mark was absent in occipital region above 2” apart. He also stated that there was no smell of alcohol in the body of deceased. 21. P.W.1 Anju Kumari has stated that her father Dilip Ram Chandravanshi and the accused Sultan both had drunk bear. Her father was not in senses due to over drinking of wine. This statement of P.W.1 Anju Kumari is belied from the medical evidence as the Doctor has stated that stomach was empty and there was no smell of alcohol in the body while conducting the postmortem on the body of the deceased. As such the testimony of this witness P.W.1 Anju Kumari who is the sole eye-witness is not corroborated with the medical evidence. 22. Moreover the trial court while testifying the competency of this child witness P.W.1 Anju has asked only one question that in which class she was studying. This single question cannot be accepted sufficient to testify the competency of this witness. As such the testimony of this witness is to be scrutinized carefully. 22.1 Hon’ble Apex Court in Surya Narayan vrs. State of Karnataka (2001) 9 SCC 129: 12 5. Admittedly, Bhavya (PW 2), who at the time of occurrence was about four years of age, is the only solitary eyewitness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eyewitness. The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence of PW 2 cannot be discarded only on the ground of her being of tender age. The fact of PW 2 being a child witness would require the court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot for discarding the testimony. be made the basis in material if not Discrepancies particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he imagine to have seen. While or she appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not. conviction based upon her in the deposition, likely to is 22.2 The Hon’ble Apex Court held in Ratansinh Dalsukhbhai Nayak vrs. State of Gujarat (2004) 1 SCC 64: 7. In Dattu Ramrao Sakhare v. State of Maharashtra it was held as follows : (SCC p. 343, para 5) “A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any 13 other competent witness and there is no likelihood of being tutored.” The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. 23. Therefore, the prosecution case becomes doubtful and the impugned Judgment of conviction needs interference and these Cr. Appeals deserve to be allowed. 24. Accordingly, these Cr. Appeals are allowed. The impugned Judgment of conviction and sentence dated 19.12.2015 and 21.12.2015 respectively passed by the Addl. Sessions Judge-II, Garhwa in S.T.No.137 of 2013, arising out of Nagar Untari P.S. Case No. 219 of 2012 is hereby set aside. 25. The appellants/convicts are acquitted from the charge levelled against them. Appellant- Sultan Hawari (in Cr. Appeal (D.B.) No.1007 of 2016) was on bail. His bail bond is hereby cancelled and the sureties are discharged from liabilities. 26. Appellant-Rita Devi (in Cr. Appeal No.967 of 2018) is in Jail custody. She is directed to be released forthwith, if not wanted in any other case. 14 27. Let the record of court-below sent back along with the copy of the Judgment.
Decision
28. Pending I.A., if any, stands disposed of. (Ananda Sen, J.) (Subhash Chand, J.) Jharkhand High Court, Ranchi Dated the 08.04.2024 P.K.S./A.F.R. 15