Jharkhand High Court
Unknown vs The State Of Jharkhand on 16 December, 2021
Criminal Appeal (SJ) No. 1593 of 2003
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(Against the judgment and order of conviction and sentence dated
13.10.2003 and 14.10.2003 respectively, passed by learned Additional
District & Sessions Judge, Fast Track Court, Sahibganj, in Sessions
Case No. 316 of 1994, arising out of Borio (Jirwabari) P.S. Case No.39
of 1991)
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Bicharu Mandal son of Nand Lal Mandal, resident of South Colony,
P.S.- Borio, District- Sahibganj
..... ..... Appellant
Versus
The State of Jharkhand ..... ..... Respondent
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For the appellant: Mr. Pankaj Kumar, Advocate
For the State: Mr. Sanjay Kr. Srivastava, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE NAVNEET KUMAR
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Navneet Kumar, J. This Criminal Appeal is directed against the judgment
and order of conviction and sentence dated 13.10.2003 and
14.10.2003 respectively, passed by learned Additional District &
Sessions Judge, Fast Track Court, Sahibganj, in Sessions Case No.
316 of 1994, arising out of Borio (Jirwabari) P.S. Case No. 39 of 1991,
whereby the sole appellant has been convicted for the offence
punishable under Sections 306 and 498A of the Indian Penal Code
and sentenced to undergo rigorous imprisonment of five years for the
offence under Section 306 of the Indian Penal Code and rigorous
imprisonment of one year for the offence under Section 498A of the
Indian Penal Code. However, both the sentences have been directed
to run concurrently.
2. The prosecution story, in brief, is that on 1.3.1991 at 4.00
p.m. the informant Mamta Mandal (deceased) in injured condition gave
her Fard-beyan before the Sub Inspector of Police, Sahibganj Town
Police Station, at Sadar Hospital, Sahibganj, that she was married to
Bicharu Mandal 12 years ago and from their wedlock they are having
a son Pradip Kumar Mandal, aged about 8 years. The informant had
alleged that since few days prior to the date of occurrence, her
husband (the appellant) used to take liquor and beat her and today
also i.e. the day of Holi he (the appellant) has beaten her, due to which
at about 1.30 p.m. when her husband (Bicharu Mandal-the appellant)
and son (P.W.3-Pradip Kumar Mandal) were out of home, she (the
informant) closed the door of room and after pouring kerosene oil on
her body, lit the fire with an intent to commit suicide. Her husband and
neighbours anyhow entered into the room and extinguished the fire but
by that time she was badly burnt. Thereafter her husband and the
neighbours took her to hospital where her treatment was going on and
during course of treatment, the informant succumbed to the injuries on
01.03.1991 itself. On the basis of the aforesaid Fard-beyan of the
informant, a formal First Information Report was drawn and a case
being Borio (Jirwabari) P.S. Case No. 39 of 1991 was instituted for the
offence under Sections 498A/309 of the Indian Penal Code.
Thereafter, investigation was carried out by the Investigating Officer
and the informant having died, charge sheet was submitted for the
offence under Section 498A and 306 of the Indian Penal Code and the
case was committed to the court of Sessions for trial where charges
were framed on 02.07.1998 for the offence punishable under Sections
498A and 306 of the Indian Penal Code, which were read over and
explained to the appellant in Hindi, to which he pleaded not guilty and
claimed to be tried.
3. The prosecution in support of its case, has examined
altogether seven witnesses, out of whom P.W. 1 (Binda Lal Yadav)
and P.W. 2 (Sri Lal Yadav) have been declared hostile, as both of them
have stated in their examination-in-chief that they did not know as to
how she (the informant) died. P.W. 3 Pradip Kumar Mandal and P.W.
4 Pinki Devi are the son and daughter respectively of accused-
appellant and the deceased Mamta Mandal. Both these witnesses
have categorically deposed that good relationship was prevailing in
between their father (appellant) and mother (deceased). P.W. 3 has
deposed in his examination-in-chief that he did not know as to how his
mother died and there was no quarrel between his father (appellant)
and mother (deceased). In the cross-examination, after being declared
hostile when the prosecution was allowed to cross-examine, this
witness explicitly and candidly stated that he never told to the police
that his father was assaulting and causing cruelty to his mother, due
to which she set herself on fire and died. Similarly P.W. 4 Pinki Devi
(daughter of the deceased and appellant) deposed in her examination-
in-chief that her mother died by setting her on fire and she has
categorically stated in paragraph no.2 of her deposition that
relationship of her father was cordial with her mother. This witness has
also been declared hostile and after being declared hostile, she in her
cross-examination has categorically stated that she never told to the
police that her father (appellant) used to assault her mother
(deceased) and after getting fed up with torture and cruelty inflicted by
her father (appellant), her mother (deceased) committed suicide by
setting herself on fire.
4. From the testimony of P.W. 3 Pradip Kumar Mandal, who
was 17 years of age at the time of recording his evidence before the
trial court, it appears that during course of trial he has categorically
stated that his father (appellant) was maintaining good relationship
with his mother (deceased) and thereby he has falsified the case of
the prosecution. Similarly, from the testimony of P.W. 4 Pinki Devi, who
was 20 years of age at the time of recording her evidence before the
trial court, it appears that she has categorically stated that her father
was living in harmonious relationship with her mother and thereby she
has also falsified the case of the prosecution. Both these witnesses
have been confronted with their previous statement, recorded under
Section 161 Cr.P.C. during course of investigation by the Investigating
Officer, who is said to be the part Investigating Officer (Ram Sumiran
Sharma), who has been examined as P.W. 7 in this case. Ram
Sumiran Sharma (P.W. 7) have had an opportunity to record the
statement of P.W. 4 (Pinki Devi) during course of investigation and this
witness (P.W.7) has categorically stated in paragraph no.3 of his
deposition that Pinki Devi has never stated that her father (appellant)
had been assaulting her mother (deceased) and, therefore, the
statement of the deceased recorded in the Fard-beyan gets wholly
falsified and is not being corroborated at all by the statement, made by
the daughter of the deceased in her deposition. This witness has
proved part of the case diary consisting of paragraph nos. 1 to 39, 81
to 85 and 86 to 112, which have marked as Exts. 3, 3/1 and 3/2
respectively.
5. In this view of the matter, the Fard-beyan of the deceased,
which appears to have been taken by the learned court below as a
sole piece of evidence for conviction of the appellant, is totally falsified
by the testimonies of P.W. 3 and P.W. 4, who are none else but the
son and daughter of the deceased, therefore, the veracity, truthfulness
and correctness of their testimonies cannot be denied. Further, in her
cross-examination, P.W. 4 has categorically stated that her father has
not solemnized second marriage and, thus, the charges against the
appellant remain uncorroborated in view of the truthful version of the
son (P.W. 3) and the daughter (P.W. 4) of the deceased.
6. P.W. 5 (Kami Kant Mishra) is the person, who has recorded
the Fard-beyan of the deceased. This witness has stated that he was
posted in another police station and when he received information, he
went to the Sadar Hospital and recorded the Fard-beyan of the
informant (since deceased) and after recording her Fard-beyan, the
same was forwarded to the concerned police station i.e. Borio
(Jirwabari) Police Station within the district of Sahibganj. The Fard-
beyan has been marked as Ext. 1/1. He has also proved the signature
of the Officer-in-charge of Borio (Jirwabari) Police Station on the formal
First Information Report, which has been marked as Ext.2. In the
cross-examination he clearly stated that he had gone all alone to
record the Fard-beyan and did not try to call any doctor before
recording the statement of the Fard-ebeyan. Thus, the prosecution
hopelessly failed to corroborate the charges levelled against the
appellant.
7. P.W. 6 is Bhola Prasad Mandal, who is said to be the dresser
at Sadar Hospital, Sahibganj, where the Fard-beyan of the informant
(since deceased) was recorded by P.W. 5. This witness has stated that
he was present in the Hospital when the Fard-beyan of the informant
(since deceased) was being recorded. He has proved his signature on
the Fard-beyan, which has been marked as Ext. 1/2. He has supported
the contents of the Fard-beyan of the informant, which has been
falsified by the testimony of her son and daughter i.e. P.W. 3 and P.W.
4 respectively.
8. Further, the doctor in this case has not been examined and,
therefore, the cause of death could not be established. The
percentage of burn injuries, due to which the deceased succumbed,
as well as the assault part, which is alleged to have been inflicted by
the appellant upon the deceased on the date of occurrence (Holi), also
remain unproved and, therefore, the vital lacuna on the part of the
prosecution remains unexplained and void with respect to the manner
and cause of death.
9. The defence on his behalf has also examined one witness,
namely, Satya Narayan Singh (D.W. 1). It appears from the testimony
of D.W. 1 that he has stated that he is a Fitter in Railway Loco and is
colleague of the appellant and both were living as a first door neighbor
in the residential quarter for a long period of time since last 25-26
years. He has very clearly accepted in his deposition that the appellant
Bicharu Mandal and his wife were having cordial relationship and he
has never heard or seen any quarrel in between them. He has further
stated that he has been living in a quarter in the same colony and on
the date of occurrence he came to know that the wife of appellant has
died due to burn injuries. During cross-examination, the prosecution
has not been able to derive any significant fact to corroborate the case
of the prosecution.
10. It also appears from a plain reading of the Fard-beyan that
the deceased has made allegation about the assault by her husband
(appellant) in a drunken stage on the date of occurrence (Holi). In
absence of any corroborative statement vis-à-vis the testimony of P.W.
3 and P.W. 4, who are son and daughter of the deceased, it cannot be
regarded as instigation within the meaning of Section 107 of the Indian
Penal Code, as held by Hon'ble Supreme Court in the case of Ramesh
Kumar Vs. State of Chhattisgarh, as reported in (2001) 9 SCC 618.
"20. Instigation is to goad, urge forward, provoke, incite or
encourage to do "an act". To satisfy the requirement of instigation though
it is not necessary that actual words must be used to that effect or what
constitutes instigation must necessarily and specifically be suggestive of
the consequence. Yet a reasonable certainty to incite the consequence
must be capable of being spelt out. The present one is not a case where
the accused had by his acts or omission or by a continued course of
conduct created such circumstances that the deceased was left with no
other option except to commit suicide in which case an instigation may
have been inferred. A word uttered in the fit of anger or emotion without
intending the consequence to actually follow cannot be said to be
instigation."
11. In the aforesaid background, it is well founded that on the
basis of the evidence of P.W. 5 and P.W. 6, the case of the prosecution
is not established and moreover for want of support by the son and
daughter, who have been examined as P.W. 3 and P.W. 4 and, thus,
the prosecution has failed to prove its case beyond doubt that the
appellant had been causing torture and cruelty to his wife (deceased)
within the meaning of Section 498-A of the Indian Penal Code and
thereby instigated the deceased, whereupon she committed suicide
within the meaning of the offence punishable under Section 306 of the
Indian Penal Code. Since the presumption would be fatal in
contravention of the testimony of P.W. 3 and P.W. 4, who are son and
daughter of the deceased, the learned trial court has misconstrued the
testimony of the witnesses and has thereby failed to appreciate the
deposition of the witnesses in right perspective and only relying upon
the testimony of P.W. 5 and P.W. 6, the version of Fard-beyan has
been accepted and the accused-appellant has been convicted
whereas the deposition of D.W. 1 has not been taken into
consideration by the learned trial court, who has been living in the
same locality in a quarter as a first door neighbour, who has
categorically discarded the version of the prosecution that the
deceased had been suffering with misery and hardship because of the
cruelty and torturous behavior of the appellant and thereby she
committed suicide. Thus, neither a slightest evidence of any kind of
cruelty nor of willful conduct nor of any kind of harassment is found in
the witnesses examined on behalf of the prosecution rather the
statement of the Fard-beyan recorded by the police gets wholly
falsified because of the clear-cut deposition of the son and daughter
of the deceased, examined on behalf of the prosecution. Both P.W. 3
and P.W. 4 have consistently and uniformly deposed that their father
(appellant) had been in co-cordial relationship with their deceased
mother. Therefore, this Court after carefully taking into consideration
the evidences available on record, as discussed above, and all
attending circumstances, comes to the conclusion that ordinary
petulance, discord and differenced in domestic life is quite common to
the society to which the victim belonged and such petulance, discord
and differences were not expected to induce a similarly circumstanced
individual in a given society to commit suicide and the conscience of
this Court gets satisfied with the testimonies of the daughter (P.W. 4)
and son (P.W.3) of the deceased.
12. In the aforesaid background, this Court finds gross error in
the impugned judgment of conviction and order of sentence, since the
learned trial court has not appreciated the evidence on record in the
right perspective. In my considered opinion, there is no evidence and
material on record wherefrom an inference of the accused-appellant
having abetted the commission of suicide by the informant Mamta
Mandal may necessarily be drawn. The totality of the circumstances
discussed hereinabove, especially only on the basis of the Fard-
beyan, which fall for consideration does not establish the charges
being raised against the appellant. The Court can convict an accused
on the basis of Fard-beyan only where it inspires full confidence, but
in the present case the testimonies of the daughter and son of the
deceased have negated the allegations made in the Fard-beyan. The
accused-appellant, therefore, deserves to be acquitted of the charges
under Section 498-A and 306 of the Indian Penal Code. Therefore, the
impugned judgment of conviction and order of sentence is found to be
bad in law and is fit to be set aside.
13. Accordingly, this Appeal is allowed and the impugned
judgment of conviction and order of sentence dated 13.10.2003 and
14.10.2003 respectively, passed by learned Additional District &
Sessions Judge, Fast Track Court, Sahibganj, in Sessions Case No.
316 of 1994, is hereby set aside.
14. Since the appellant is on bail, he is discharged from the
liabilities of bail bonds. Let the lower court records be sent back to the
trial court.
(Navneet Kumar, J.)
Jharkhand High Court, Ranchi
Dated the 16th December, 2021
A.K.Verma/ N.A.F.R.
