Lalita Banara @ Patagai Banara vs The State Of Jharkhand
2022 Latest Caselaw 3028 Jhar

      Criminal Appeal (D.B.) No. 698 of 2014

Against the judgment dated 10.09.2009 passed by Sri R. K. Srivastava,
Additional Sessions Judge (F.T.C. V), West Singhbhum at Chaibasa in
S. T. No. 313 of 2008.                              ---

Lalita Banara @ Patagai Banara       ...      ...     Appellant

                     Versus
The State of Jharkhand               ...      ...     Respondent


                         ---

For the Appellant        : M/s. Anshu Dubey, Advocate &
                             Tejaswita Safalta, Amicus Curiae
For the Respondent       : Mrs. Priya Shrestha, Special P.P.

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                      Present:
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE AMBUJ NATH
                         ---
C. A. V. on - 28.07.2022       Pronounced on - 04.08.2022


1.    Heard learned counsel for the parties.

2. This appeal is directed against the judgment of conviction and order of sentence dated 10.09.2009 passed by Sri R. K. Srivastava, Additional Sessions Judge (F.T.C. V), West Singhbhum at Chaibasa in S. T. No. 313 of 2008 whereby and whereunder the appellant has been convicted for the offences punishable under Sections 302/201 of Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life for the offence under Section 302 I.P.C. No separate sentence has been passed for the offence under Section 201 I.P.C.

3. The fard beyan of Manjura Banra was recorded on 14.07.2008 at 1:00 P.M. in which he has stated that Lalita Banra (appellant) was married to Chambaru Birua about five years back. Lalita Banra had a two and a half old year son namely, Rohit Birua from her first husband. The first husband of Lalita Banra had left her about three years back and about a week back Lalita Banra had solemnized another marriage with Lebiya Sawaiya. But Lebiya Sawaiya was not ready to keep the child with him. On 07.07.2008, Lebiya Sawaiya took Lalita Banra with him, but left the child in the house of the informant. The child used to cry as he needed breast feeding. On 13.07.2008 at about

11:00 AM, the informant along with one Ramai Pingua and Rohit Birua went to the house of Lebiya Sawaiya. It has been stated that Lebiya Sawaiya went to the village to purchase Hadia and in the meantime, Lalita Banra had taken the child and gone towards the eastern side of the house. In the meantime, Lebiya Sawaiya came back and enquired about Lalita Banra and he was told that Lalita had gone out with child in her arms. It is alleged that after 10-15 minutes, Lalita Banra and Lebiya Sawaiya came back, but the child was not with them. On being repeatedly asked about the child, Lalita Banra had disclosed that the child has been killed by drowning him in the water, at which all of them went to the place of occurrence and Lebiya Sawaiya took the child out of the water. On the next day, the Munda of the village was informed about the incident. It is also alleged that Lebiya Sawaiya had threatened that if she keeps the child, he will not keep her and it was the reason for Lalita Banra to have committed the murder of her son.

Based on the aforesaid allegations, Manjhari (Tantnagar O.P.) P. S. Case No. 23 of 2008 was instituted against Lalita Banra for the offences under Sections 302/201 of Indian Penal Code. On conclusion of investigation, charge-sheet was submitted against the accused and after cognizance was taken, the case was committed to the Court of Sessions, where it was registered as S. T. No. 313 of 2008. Charges were framed against the sole accused under Sections 302/201 I.P.C. which was read over and explained to her in Hindi to which she pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as six witnesses in support of its case.

P.W. 1 - Manjura Banra is the informant and the brother of the accused Lalita Banra @ Patagai Banra. He has deposed that the marriage of his sister was solemnized with Chambaru Birua and out of the said wedlock, a son was born who was named Rohit Birua. After Chambaru had left his sister, her son started residing in the house of this witness. His sister had solemnized a second marriage in Chitimiti village and after the marriage, she went to live in Chitimiti village, but she left her son in his house. He had thereafter taken the child to her sister's place. There were two elderly persons present in the house and her brother-in-

law had gone to call someone and his sister had returned from work. The child was handed over to his sister. It has been stated that all of them were sitting when his sister Lalita Banra went somewhere with the child. She returned after some time, but the child was not with her. When everyone started searching for the child, his dead body was found in the water which was taken out by Lalita Banra and thereafter they returned home. On the next day, his sister came with the dead body of the child and kept it in a cot. The police has recorded his fard beyan in which he had put his thumb impression.

In cross-examination, he has stated that his nephew (deceased) stayed in his house for about two years. He had not given any statement before the police that his sister had taken out the dead body from the water.

P.W. 2 - Ramai Pingua deposed that he had accompanied Manjura Banra to the house of Lebiya Sawaiya with the son of Patagai Banra. Patagai Banra was left by her first husband Chambaru Birua. After re- marriage Patagai Banra had left for Chitipiti village by leaving her son in the house of Manjura Banra. Lebiya Sawaiya had gone to purchase Hadia while he and Manjura were sitting in the house. He has stated that Patagai Banra had left with the child and after half an hour, Lebiya Sawaiya returned with Patagai Banra. The son of Patagai Banra was not with them, when they returned. When asked about the child, she had disclosed that she had left him at her work place. All have gone in search of the child and on being pointed out by Patagai Banra, the dead body of the child was recovered. This witness has stated that he does not know as to who had murdered the child. The dead body of the child was taken to the house of Manjura Banra who informed the village Munda and thereafter police had come.

In cross-examination, he has stated that Patagai Banra had left the child in the house of Manjura Banra about two days prior to the incident. He had stated before the police that Lebiya Sawaiya and Patagai Banra had taken out the body of the child from the ditch.

P.W. 3 - Patar Padeya had deposed that about 6-7 months back, Manjura Banra had intimated that Patagai Banra has kept the dead body of her son in the house of Ramesh Banra, who is the father of Manjura

Banra. He informed the police since he is the Munda of the village. He has identified his signature in the fard bayan which has been marked as Exhibit 1. He has also proved his signature in the inquest report which has been marked as Exhibit 1/1. He has stated that the first marriage of Patagai Banra was solemnized in Jangula village and she had a son out of the first marriage. After her first husband left her, she solemnized marriage with Lebiya in Chitimiti village and she had left her son in the house of Manjura Banra, whereas she had gone to her matrimonial house, but since the child did not stop crying, he was sent to Chitimiti village and thereafter Patagai Banra had sent the dead body of the child to the house of Manjura Banra.

In the cross-examination, he has deposed that whatever has been stated by him is based upon the hearsay evidence.

P.W. 4 - Lebiya Sawaiya is the husband of the accused Lalita Banra. He has stated that his wife had a son from her first marriage. Lalita Banra had said at the time of marriage that she will keep her son, but when she went to the matrimonial house, she did not bring her son as she had left him at her brother's place. He has stated that after about six days of marriage, the brother of Lalita namely Manjura had brought the child. At that point of time, Lalita Banra had gone to work as a labour, but he had called her back. He had left the house to bring Haria for guests and when he returned, he did not find Lalita Banra and his brother had disclosed that she had left with her child. He started searching for Lalita Banra when his aunt disclosed that Lalita had gone towards the ditch which is filled with water. He found her sitting near the pond which is close to the ditch. He has further stated that Lalita Banra disclosed that she had left the child at the place of her work. Both came back home and on being questioned, they were taken to the ditch, where he took out the dead body of the child. He had disclosed that Lalita Banra had told him that the dead body of the child is in the ditch.

In cross-examination, he has deposed that he had stated to the police that after recovery of the dead body, he had said to Lalita not to come to his house. He also deposed that two girls were bathing in the pond, though he does not know their names.

P.W. 5 - Murali Sawaiya deposed that the accused is the wife of his younger brother. The marriage was solemnized about 7 months back, but she did not come with her child. After a week of her marriage, her brother had come with the child. He has stated that Lalita Banra had gone to work as a labour in the check-dam. His brother Lebiya Sawaiya had gone to call Lalita Banra and came back with her to his house. He has also deposed that Lalita Banra was handed over the child and she left with the child. She had thrown the child in a ditch filled with water. This witness and the others were taken to the ditch by Lalita Banra, where Lebiya Sawaiya had taken out the dead body of the child.

In cross-examination, he has deposed that two girls bathing in the pond had disclosed that clothes were lying near the ditch at which they had gone towards the ditch.

P.W. 6 - Jema Sawaiya disclosed that Lalita Banra is her sister-in- law who had married her brother-in-law - Lebiya Sawaiya.

In cross-examination, she has stated that she knew the accused because she is related to her.

5. The statement of the accused was recorded under Section 313 Cr.P.C. in which she has denied to be involved in the offence.

6. Since the learned counsel for the appellant Ms. Anshu Dubey was not present on 11.07.2022, Ms. Tejaswita Safalta was appointed as Amicus Curiae. However, when the matter was finally heard on 28.07.2022, Ms. Anshu Dubey was also present and has put forward her submission in addition to what has been argued by Ms. Safalta.

7. Ms. Tejaswita Safalta, learned Amicus Curiae for the appellant has submitted that the evidence of the witnesses suffers from material contradictions. It has been submitted that the Investigating Officer has not been examined which has caused prejudice to the defence. So far as the doctor who had conducted the autopsy is concerned, he has also not been examined and the post mortem report has been exhibited taking the aid of Section 294 Cr.P.C. There are no eye- witnesses to the occurrence. Learned counsel further submits that the death of the child had taken place much prior to the actual incident as would be apparent from the post mortem report.

8. Ms. Anshu Dubey, learned counsel has added that the post mortem report contradicts the manner of occurrence as depicted by the witnesses. She has also submitted that the circumstantial evidence which has been put forward by the prosecution is weak in nature and is further breached by the fact that no mother will commit such act as alleged.

9. Mrs. Priya Shrestha, learned Special P. P. has relied upon the evidence of P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 while submitting that it was the appellant who had taken away the child and questions were raised when she returned empty handed and then only the true picture had emerged. She has submitted that it was the appellant who had taken the witnesses to the ditch from where the dead body was fished out and this circumstance strongly points to the guilt of the appellant.

10. We have given our anxious consideration to the submissions made by the learned counsel for the respective parties and have also perused the Lower Court Records.

11. What emerges from the evidence of the witnesses is that the appellant had solemnized a second marriage with Lebiya Sawaiya after her first husband Chambaru Birua had deserted her and after few months of her desertion, a male child was born to the appellant. The fard beyan discloses that Lebiya Sawaiya did not want to keep the child and therefore the appellant had left the child at her brother's house. Since the infant was not being breast fed and was continuously crying, P.W. 1 had taken him to the house of the appellant after which the incident had taken place.

12. Admittedly, there are no eye-witnesses to the occurrence and only on the basis of circumstantial evidence, the appellant has been convicted. It is to be seen as to whether the circumstances embodies the culpability of the appellant in committing the murder or not.

13. The dead body of the child was stated to have been recovered from a ditch filled with water which was besides a pond. P.W. 4 who is the second husband of the appellant had disclosed about two girls bathing in the pond which fact has been corroborated by P.W. 5. Being near to the ditch, they would have been the best witnesses to

throw light on what actually had transpired. The prosecution however has been unable to produce those witnesses.

14. So far as the manner of occurrence is concerned, P.W. 1, P.W. 2, P.W. 4 & P.W. 5 have stated about the appellant going away with the child and coming back empty handed. P.W. 5 in specific terms has stated about the appellant drowning her child in a ditch. P.W. 1, P.W. 2 and P.W. 4's versions though not specific, but in an oblique way reiterates the statement of P.W. 5. Why we say so is on account of the fact that the dead body was indeed recovered from the ditch and none of the witnesses have stated about any injuries found on the person of the deceased. The post mortem report which has been marked as Exhibit 2 narrates an altogether different story. The autopsy was conducted by Dr. M. Lugun when he was posted as a Medical Officer at Sadar Hospital, Chaibasa and the findings recorded are as follows:

Body swollen, blood coming out from nose and mouth. Multiple aberrations present over face and right of skull with haematoma. Bleeding from both ear. Lacerated wound on right side of back 1" x ½ " x ½ ". Abrasion on both elbow joint. Doctor as the report suggests, on dissection of the head & neck found subcutaneous tissue hemorrhage. Blood present in cranial cavity. Thorax

- ribs intact. Heart - right side full and left side of chamber was empty. Lungs

- pale. Abdomen - digested food materials present over the stomach.

The cause of death has been opined to be on account of head injury leading to haemorrhage and shock and the weapon used was hard and blunt substance.

15. The post mortem report reveals multiple injuries on the person of Rohit Birua, but none of the witnesses seems to have any knowledge of the injuries sustained. The witnesses have also not stated about any instrument found from the possession of the appellant. No sign of drowning was found at the time of autopsy, though the body was found to be swollen and the time of death was 36 to 72 hours prior to the post mortem.

The post mortem report is not a substantive piece of evidence though, the evidence of the doctor is. The evidentiary value of the post mortem report has recently been considered in the case of "Ghulam

Hassan Beigh Vs. Mohammad Maqbool Magrey and Others" reported in 2022 SCC OnLine SC 913, wherein it has been held as follows:

31. "What did the trial court do in the case on hand? We have no doubt in our mind that the trial court could be said to have conducted a mini trial while marshalling the evidence on record. The trial court thought fit to discharge the accused persons from the offence of murder and proceeded to frame charge for the offence of culpable homicide under Section 304 of the IPC by only taking into consideration the medical evidence on record. The trial court as well as the High Court got persuaded by the fact that the cause of death of the deceased as assigned in the post mortem report being the "cardio respiratory failure", the same cannot be said to be having any nexus with the alleged assault that was laid on the deceased. Such approach of the trial court is not correct and cannot be countenanced in law. The post mortem report, by itself, does not constitute substantive evidence. Whether the "cardio respiratory failure" had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical officer concerned i.e. the expert witness who may be examined by the Prosecution as one of its witnesses. To put it in other words, whether the cause of death has any nexus with the alleged assault on the deceased by the accused persons could have been determined only after the recoding of oral evidence of the eye witnesses and the expert witness along with the other substantive evidence on record. The post mortem repot of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor's statement in court is alone the substantive evidence. The post mortem repot can be used only to corroborate his statement under Section 157, or to refresh his memory under Section 159, or to contradict his statement in the witness-box under Section 145 of the Evidence Act, 1872. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court."

16. In the present case, the doctor has not been examined and the post mortem report has been exhibited by taking recourse to Section 294 Cr.P.C. Though it is not a substantive piece of evidence and even though the doctor has not been examined by the prosecution, the corroborative nature of the post mortem report cannot get diminished.

Moresoever when the cause of death is not even remotely connected with the manner of occurrence as scraped out from the ocular evidence.

17. So far as the last seen theory is concerned, there are consistent evidences on record that the appellant had returned with Lebiya Sawaiya and even though the appellant had returned sans the child, but Lebiya Sawaiya also had not explained as to what had actually transpired and his conduct does arouse suspicion.

18. The prosecution has been unable to establish the chain of circumstances from which the guilt of the appellant could be inferred thereby shifting the onus upon the appellant to explain the circumstances leading to the death of the child. The benefit of doubt therefore has to be extended to the appellant. As a consequence to the aforesaid findings, the judgment and order of conviction and sentence dated 10.09.2009 passed by Sri R. K. Srivastava, Additional Sessions Judge (F.T.C. V), West Singhbhum at Chaibasa in S. T. No. 313 of 2008 whereby and whereunder the appellant has been convicted for the offences punishable under Sections 302/201 of Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life for the offence under Section 302 I.P.C. is hereby set aside.

19. Since the appellant is in custody, she is directed to be released forthwith, if not wanted in any other case.

20. Pending I.As if any stand disposed of.

21. This appeal is allowed.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.) Jharkhand High Court at Ranchi The 4th day of August, 2022 R.Shekhar/NAFR/Cp.3