Shankar Ram vs The State Of Jharkhand
2021 Latest Caselaw 4138 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                (Criminal Appellate Jurisdiction)

                    Criminal Appeal (DB) No. 988 of 2012

(Against the judgment of conviction dated 01 st August 2012 and the order of sentence
dated 03rd August 2012 passed by the learned Additional Sessions Judge-I, Bermo at
Tenughat in S.T. No. 269 of 2004)
                                   --------
Shankar Ram, son of late Nirmal Ram, resident of village-Kargali Gate,
PO&PS-Bermo, District-Bokaro                          ...... Appellant

                                   Versus
1. The State of Jharkhand
2. Awadh Kishore Singh, son of late Ram Awtar Singh, resident of Saram,
PS-Gomia, District-Bokaro                            ...... Respondents


CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant          :    Mr. Arwind Kumar, Advocate
For the State              :    Mr. Shekhar Sinha, Public Prosecutor
                                 --------------
                                 JUDGMENT

02nd November 2021 Per, Shree Chandrashekhar, J.

Pushpa Devi was married to Shankar Ram in the year 1983. She was found dead on 29th August 1997 in her matrimonial house at village-Kargali Gate. A written complaint was given on 30 th August 1997 to the officer-in-charge of Bermo PS in which her brother Awadh Kishore Singh made allegations of harassment and torture of Pushpa Devi at the hands of her husband, mother-in-law and Pramod Ram.

2. Bermo PS Case No. 116 of 1997 was registered under section 302/34 of the Indian Penal Code against Shankar Ram, Pramod Ram and Sita Devi. The investigating officer submitted Final Form on the ground of mistake of facts but on the basis of a protest petition filed by the informant, CP Case No. 184 of 2000 was registered in which Kishun Ram, Mangru Ram and Kaushalya Devi were also arrayed as accused persons. After inquiry under section 200 of the Code of Criminal Procedure, all six accused persons were issued summons to face the trial 2 Cr. Appeal (D.B) No. 988 of 2012

and the case was committed to the Court of Sessions vide order dated 27 th August 2004.

3. In S.T. No. 269 of 2004, Kishun Ram, Kaushalya Devi and Mangru Ram were discharged vide order dated 04 th December 2004 but against Shankar Ram, Pramod Ram and Sita Devi a charge under section 302/34 of the Indian Penal Code was framed vide order dated 04th January 2005. The records would reveal that the substance of charge was read over and explained to the accused persons who pleaded not guilty and claimed trial.

4. Pramod Ram died during the trial and, accordingly, the proceeding against him was dropped vide order dated 06th January 2012.

5. In S.T. No. 269 of 2004, the learned Additional Sessions Judge-I, Bermo at Tenughat acquitted Sita Devi on the ground that the prosecution had failed to prove her involvement in causing death of Pushpa Devi.

6. The appellant is convicted and sentenced to RI for life and a fine of Rs. 20,000/- under section 302 of the Indian Penal Code.

7. Mr. Arwind Kumar, the learned counsel for the appellant assails the judgment of Sessions Court on the grounds that (i) cause of death of Pushpa Devi was not proved (ii) evidence as regards harassment and torture of Pushpa Devi is in the realm of hearsay (iii) presence of the appellant in his house when Pushpa Devi caught fire was not proved, and

(iv) chain of circumstances to prove guilt of the appellant is not complete.

8. The law on circumstantial evidence is well-settled. In a case based on circumstantial evidence the prosecution is required to prove incriminating circumstances by leading cogent and consistent evidence and an inference of guilt can be justified only when all the incriminating circumstances are found to be incompatible with the innocence of the accused.

9. In "Varun Chaudhary v. State of Rajasthan" (2011) 12 SCC 545 the Hon'ble Supreme Court has observed as under:

"25. It is a settled legal position that in case of circumstantial evidence, there must be a complete chain of evidence which would lead to a conclusion that the accused was the only person, who could have committed the offence and none else. In the instant case, there is nothing to show that the accused 3 Cr. Appeal (D.B) No. 988 of 2012

had committed the offence and on the basis of the aforestated material, in our opinion, it would be dangerous to convict the accused."

10. There is no eyewitness who could tell the Court how Pushpa Devi suffered burn injuries in her matrimonial house. From the records, we find that Pushpa Devi was first admitted in a hospital at Kargali and thereafter she was taken to Bokaro General Hospital for better treatment, but she could not survive burn injuries and succumbed to death on 29th August 1997. Next day, the dead body of Pushpa Devi was sent for postmortem examination which was conducted at 04:00 PM on 30th August 1997. Dr. Awanish Kumar Choudhary who conducted the postmortem examination was not called to prove the postmortem report - even postmortem report was not tendered in evidence.

11. The defence set up by the appellant is that his wife caught fire from a debri (small lamp) and his neighbours tried to rescue her. At that time he was not present in his house and on information by his neighbours he rushed to home and took his wife to the local hospital for treatment. The prosecution witnesses were specifically questioned by the defence on this issue who, however, denied the suggestions. The further defence set up by the appellant was that his wife who was suffering from mental illness was treated by Dr. N. Borde at Kanke.

12. The prosecution witnesses though denied the suggestions, the records reveal that they suppressed true information from the Court. PW1, PW3 and PW4 are real brothers of Pushpa Devi who deposed in the Court that the appellant committed marpit with his wife and a panchayati was convened in the village. Any witness including the local Ex-MLA who according to these witnesses was present in the panchayati was not examined in the Court. It seems that the said incident occurred in the year 1996 and before that no such incident had happened. PW2 deposed in the Court that marpit with Pushpa Devi started about 4-5 years after the marriage. In his examination-in-chief, he has made it clear that there was just one incident of marpit with Pushpa Devi before she died on 29th August 1997. He is closely related to Pushpa Devi and resident of a nearby village but his evidence does not support the prosecution rather creates doubt on the prosecution case. PW3 has also stated about marpit 4 Cr. Appeal (D.B) No. 988 of 2012

with his sister and his statement in paragraph no. 4 of examination-in- chief clearly indicates that the appellant committed marpit with Pushpa Devi just once. There is no reference about any specific incident in the testimony of PW1 and PW3 and a general statement was made by them that the accused committed marpit with their sister. As PW4, the informant who was a practicing lawyer tried to support his written complaint but the evidence of other witnesses that he was instrumental in making six persons accused in the protest petition whereas a First Information Report was lodged only against three accused impeach his testimony to the extent to render him unreliable.

13. From the prosecution evidence, we gather that Pushpa Devi was put to harassment and torture at the hands of her husband is not proved by the prosecution.

14. No motive is assigned by the prosecution why Pushpa Devi was done to death in her matrimonial house.

15. In "Surinder Pal Jain v. Delhi Admn." 1993 Supp (3) SCC 681 the Hon'ble Supreme Court has observed as under:

"11. ....... In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof."

16. One stray incident of assault by the husband is not sufficient to infer that Pushpa Devi was ill treated by her husband throughout the marriage and one day he decided to get rid of her.

17. In "Dev Kanya Tiwari v. State of U.P." (2018) 5 SCC 734 the Hon'ble Supreme Court has observed that in a case based entirely on circumstantial evidence the Court should be more careful while analyzing evidence before conviction is recorded. We may also refer to the judgment in "Ranjit Singh v. State of Punjab" (2011) 15 SCC 285 wherein the Hon'ble Supreme Court has observed that merely because death of a woman has taken place in her matrimonial home that by itself is not sufficient to raise a presumption under section 106 of the Indian Evidence Act to hold an accused guilty for murder.

5 Cr. Appeal (D.B) No. 988 of 2012

18. In "Behram Khurshid Pesikaka v. State of Bombay" AIR 1955 SC 123 the Hon'ble Supreme Court has observed as under:

"15. ...... Section 106 of the Evidence Act cannot be construed to mean that the accused has by reason of the circumstance that the facts are especially within his own knowledge to prove that he has not committed the offence. (See AIR 1936 PC 169, also AIR 1940 Madras 1.) It is for the prosecution to prove that he has committed the offence and that burden is not in any manner whatsoever displaced by Section 106 of the Evidence Act."

19. We have glanced through the postmortem report and observe that the doctor did not find any mark of external violence. He observed singeing of hair, sooty black face of Pushpa Devi and presence of kerosene oil. Pushpa Devi suffered epidermal and dermo-epidermal burn injuries over her entire body except legs with blisters scattered over some parts of the body. The doctor recorded his opinion that Pushpa Devi suffered antemortem burn injuries by dry flames.

20. Under section 293 of the Code of Criminal Procedure examination of the doctor who conducted the postmortem is not necessary though the Court has a discretion to call the expert as a witness. Section 294 of the Code of Criminal Procedure provides that where genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding without proof of the signature of the person to whom it purports to be signed. In a criminal trial what is important is to prove the cause of death and for that purpose examination of the doctor who has conducted the postmortem may be necessary [refer, "Rajesh Kumar v. State (Govt. of NCT of Delhi)" (2008) 4 SCC 493]. Death by burn injury can be homicidal, suicidal or accidental but in the present case it is not proved that Pushpa Devi died a homicidal death.

21. The prosecution evidence is cryptic and lacking in details to implicate the appellant in the case. The important material evidences were not collected or were not available because the defence version of the occurrence is true. Whatever may be the reason, the materials on record do not complete the chain of circumstances so as to hold the 6 Cr. Appeal (D.B) No. 988 of 2012

appellant guilty and, accordingly, we hold that the prosecution has failed to prove the charge of murder against the appellant.

22. The judgment of conviction of Shankar Ram dated 01st August 2012 and the order of sentence of RI for life under section 302 of the Indian Penal Code and a fine of Rs. 20,000/- dated 03 rd August 2012 passed by the learned Additional Sessions Judge-I, Bermo at Tenughat in S.T. No. 269 of 2004 are set-aside.

23. In the result, Criminal Appeal (DB) No. 988 of 2012 is allowed.

24. Mr. Shekhar Sinha, the learned PP, states that Shankar Ram is in jail.

25. The appellant Shankar Ram shall be set free forthwith, if not wanted in connection to any other case.

26. Let the lower Court records be transmitted to the Court concerned, forthwith.

27. Let a copy of the Judgment be transmitted to the Court concerned and concerned Jail Superintendent through FAX.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.)

Jharkhand High Court, Ranchi Dated: 02nd November 2021 Tanuj NAFR