Against The Judgment Of ... vs The State Of Jharkhand
2022 Latest Caselaw 4244 Jhar

            Cr. Appeal (DB) No. 981 of 2015
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Against the judgment of conviction dated 15.12.2014 and order of sentence dated 23.12.2014, passed by Shri Arun Kumar Singh, learned District & Additional Sessions Judge, Sessions Court No. 1, Koderma in S.T. No. 54 of 2013.

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Moti Das.                                .....Appellant
                                Versus
The State of Jharkhand.                  ....Respondent

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For the Appellant    : Mrs. Rashmi Kumar, Advocate
For the State        : 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 24.08.2022                                Pronounced on 18/10/2022

Heard Mrs. Rashmi Kumar, learned counsel for the appellant and Mrs. Priya Shrestha, learned Special P.P.

2. This appeal is directed against the judgement of conviction dated 15.12.2014 and order of sentence dated 23.12.2014, passed by Shri Arun Kumar Singh, learned District & Additional Sessions Judge, Sessions Court No. 1, Koderma in S.T. No. 54 of 2013, whereby and whereunder the appellant has been convicted for the offences punishable under sections 498A, 302 and 201 IPC and has been sentenced to undergo R.I. for three years for the offence punishable under section 498A IPC, R.I. for seven years for the offence punishable under section 201 IPC and imprisonment for life for the offence punishable under section 302 IPC with a further direction that all the sentences are to run concurrently.

3. The fardbeyan of Ramdeo Ravidas was recorded on 25.11.2012 near the well of Babulal Rana at village-Lariadih to the effect that the marriage of his sister namely Kunti Devi @ Jamuni Devi was solemnized with Moti Das (appellant) about fifteen years back. After four years of marriage, Moti Das had demanded Rs.50,000/-as dowry and if the dowry was not fulfilled, a threat was extended to commit the murder of his sister. It has been alleged that the accused used to come intoxicated in the evening and used to assault the sister of the informant. In the night of 24/25.11.2012, the accused had repeatedly called on his mobile to enquire as to whether his sister had reached or not since he had boarded her on a vehicle.

It has been alleged that today i.e. 25.11.2012, an information was received that Moti Das has murdered his sister and thrown her in the well. When he along with his father and other family members had reached village-Lariadih, they saw 2 Cr. Appeal (DB) No. 981 of 2015

a crowd having gathered and the body of his sister and his nephews and niece were found floating in the well. It has been alleged that whenever the informant used to visit his sister at Lariadih, she used to complain that Modi Das regularly assaulted her after having liquor.

4. Based on the aforesaid allegations, Koderma P.S. Case No. 341 of 2012 was instituted for the offences punishable under sections 302, 201, 120B, 498A/34 IPC against Moti Das and Rupia Mosomat. On completion of investigation, chargesheet was submitted against Moti Das and Rupia Mosomat under sections 302, 201, 498A/34 IPC. After cognizance was taken, the case was committed to the Court of Sessions where it was registered as S.T. No. 54/2012. Charge was framed against the accused persons for the offences punishable under sections 498A, 302, 201 and 34 IPC, which was read over and explained to the accused in Hindi, to which they pleaded not guilty and claimed to be tried.

5. Be it noted that co-accused-Rupia Mosomat has been acquitted by the learned trial court.

6. The prosecution has examined as many as thirteen witnesses in support of its case.

P.W-1-Paryag Ravidas is the uncle of the informant. He has deposed that the marriage of Kunti was solemnized with Moti Das about twenty years back. At the time of the incident, she was at her matrimonial house. It was the day of Chhath Puja when information was received that Moti Das has committed the murder of Kunti. At this the villagers had gone to village-Lariadih, Pathardiha where a crowd was found having assembled. On query, it was disclosed that the police had already taken the dead bodies to the police station. He came to know that Moti Das had committed the murder of his niece who was pregnant as well as four children and had thrown them in the well. On going to the hospital, he had seen all the five dead bodies. Prior to the occurrence, his brother has disclosed that the accused used to regularly torture his daughter and also used to make a demand of Rs.40,000/--Rs.50,000/-. He has identified his signature in the fardbeyan, which has been marked as Ext-1.He has also proved his signature in the seizure list, which is with respect to seizure of a pair of shoes and sleepers and which have been marked as Ext-2.

In his cross-examination, he has deposed that neither he has seen the occurrence nor anyone had demanded money in his presence.

P.W-2-Tulsi Ravidas has deposed that the incident is of eight-nine months back and he had come to know that Moti Das had murdered the sister of Ramdeo and had thrown the dead body in the well. He had gone to Sadar Hospital and had seen five dead bodies. The accused used to commit assault 3 Cr. Appeal (DB) No. 981 of 2015

and also demanded money from the parents of the deceased.

In cross-examination, he has stated that he had not witnessed the occurrence nor the demand was made in his presence.

P.W-3-Durgi Ravidas and P.W-4-Nuno Das did not support the case of the prosecution and were declared hostile by the prosecution.

P.W-5-Rozan Ali and P.W-6-Ramlal Das have been tendered by the prosecution.

P.W-7-Ashok Das was acquainted with the informant-Ramdeo Ravidas. He has stated that his sister Jamuni was married to Moti Das. He had come to know from Ramdeo that Moti Das had murdered Jamuni and had thrown the dead body in the well. He had gone to the matrimonial house of Jamuni and had seen the dead body of Jamuni and her four children in the well. Whenever Jamuni used to come to her father's place, she used to complain that her husband always demanded money from her father. He has identified his signature in the fardbeyan, which has been marked as Ext-1. He has also identified his signature and the signature of Prayag Ravidas in the seizure list of seized tobacco (Khaini) container and slippers, which have been marked as Ext- 2 and 2/1 respectively.

In cross-examination, he has deposed that he had not seen the occurrence. When Jamuni had come to her parent's house she had disclosed about the torture committed upon her.

P.W-8-Babulal Ravidas has stated that Moti Das used to regularly assault Kunti Devi. Moti used to say that if she does not bring money from her parents, he will murder her. He used to demand Rs.50-60,000/-Except Moti Das, no one used to demand dowry. He has stated that Moti had committed the murder of his wife and thrown her in the well along with her four children.

In cross-examination, he has deposed that he had not witnessed the occurrence. The marriage of Moti Das was solemnized 25-30 years back. He has stated that Moti Das had never made any demands in his presence.

P.W-9-Ramdeo Das is the informant who has deposed that the marriage of his sister Kunti Devi was solemnized with Moti Das about twenty years back. The couple had four children; three boys and a girl. At the time of the incident, his sister was in her matrimonial house. He had come to know that his sister and her four children were thrown in the well. He had seen all the bodies at Sadar Hospital, Koderma. He has stated that his sister was drenched in blood while froth was coming out from the mouth of the children. He has identified his signature in the fardbeyan, which has been marked as Ext-3. The reason for the occurrence is that Moti Das had demanded Rs.50,000/- from his father inlaw for business purpose as well as construction of house, which, however, was not 4 Cr. Appeal (DB) No. 981 of 2015

fulfilled. This demand was being made from the time of marriage. He has stated that Moti Das used to quarrel with his wife regarding these issues and specially when he used to come home in a drunken state.

In cross-examination, he has admitted that the incident did not happen in his presence. After marriage, his sister used to regularly visit her parent's house. No complaint was ever made regarding the demand of Rs.50,000/- or the torture committed upon his sister. No demand or torture was made in presence of this witness.

P.W-10- Ranjan Kumar Choudhary was posted as an Officer in charge in Koderma P.S. On 25.11.2012 at 9 A.M., information was received that some dead bodies were seen in a well in village-Lariadih. When he reached the place of occurrence, he learnt that the dead bodies have been taken out by the villagers from the well of Babulal Rana. He had recorded the fardbeyan of Ramdeo Ravidas at the place of occurrence itself. He has identified his writing and signature upon the fardbeyan, which has been marked as Ext-4. He has proved the endorsement in the fardbeyan as well as proved the formal FIR, which has been marked as Ext-5.

After taking charge of the investigation, he had recorded the restatement of the informant and had also inspected the place of occurrence, which is at village-Lariadih in the well of Babulal Rana. About 150 yards from the well on the northern side is the house of Moti Das. Near the well, one pair of black shoe, one black woolen cap and a pair of plastic slippers cream coloured were recovered. A seizure list was prepared, which has been marked as Ext-2/B. He had recorded the statements of Tulsi Ravidas, Ashok Ravidas, Shankar Ravidas, Babulal Ravidas, Paryag Ravidas, Durgi Ravidas, Nuno Das, Ramlal Das and Rozan Ali. He had prepared the inquest reports and had also sent the dead bodies for postmortem to Sadar Hospital, Koderma. He had arrested Moti Das and Rupia Devi. He had obtained the postmortem reports and had also sent the viscera to the Forensic Science Laboratory.

In cross-examination, he has deposed that he does not know as to who had given him the information about the dead bodies being found in a well at village-Lariadih. He has stated that the distance from Koderma P.S. to the place of occurrence is 4/5 kilometers. At the place of occurrence, there was a crowd of about fifty persons. The dead bodies were taken out from the well by the police party.

P.W-11 (mistakenly numbered as P.W-12)-Dr. Ashish Kumar was posted as a Medical Officer in Sadar Hospital, Koderma and on 24.11.2012, a Medical Board was constituted by the Civil Surgeon, Koderma to conduct autopsy on Dhanu Das. On the same day, the Medial Board had conducted autopsy on the 5 Cr. Appeal (DB) No. 981 of 2015

dead bodies of Ram Khelawan Das, Kunti Devi, Kali Kumari and Karu Das. He has identified his signature in the fact of the report of Dhanu Das, which has been marked as Ext-5. He has also proved his signature in the reports of the Medical Board regarding postmortem of Ram Khelawan Das, Kunti Devi, Kali Kumari and Karu Das, which have been marked as Exts-5/A, 5/B, 5/C and 5/D.

P.W-12-Dr. Harendra Kumar Sharma was posted as a Medical Officer, Sadar Hospital, Koderma. He was also one of the members of the Medical Board, which had conducted autopsy on the dead bodies of five persons.

P.W-13-Dr. Ram Lakhan Rajak was posted as a Medical Officer, Sadar Hospital, Koderma. He was also one of the members of the Medical Board, which also comprised of Dr. Ashish Kumar and Dr. H.K. Sharma. On external examination of Kunti Devi, no external injuries were found on any part of the body.

"On dissection both lungs were intact and congested. On cut section froth coming from left lungs. Heart-right chamber contains blood clot. Left chamber empty. Liver, Spleen, Kidney were congested. Stomach wall not congested but containing water about 1.5 Litre plain water. No food material present".

The probable cause of death was opined to be asphyxia due to ante mortem drowning and cardio respiratory failures.

The following was found on conducting autopsy on Kali Kumari. " No any external injuries were found on her person on dissection. No blood clot in chest cavity, lungs were intact, spleen ribs were intact, lungs were congested. On cut section from left lung froth coming out. Both chamber of the chest were empty. Liver, Kidney, & Spleen were congested. Stomach wall not congested undigested food material were found. Urinary bladder empty".

The cause of death was most probably due to cardio respiratory failure due to ante mortem drowning.

The autopsy on the dead body of Dhanu Das revealed the following:- "Froth coming from his mouth & nostrils. Staining on right cheek. No external injury on any part of the body. On dissection, blood clot was not found in chese cavity. Ribs were intact. Left lungs swelled. On cut section froth coming out. Heart was found in normal size both chamber contains blood clot. Liver, Splleen, Kidneys were congested. Stomach was not congested contains some solid food and digested about 250 grams".

The opinion was reserved awaiting the report of FSL. However, the probable cause of death was opined to be cardio respiratory failure due to ante mortem drowning.

The autopsy on the dead body of Karu Das revealed the following:- "An abrasion on right temporal region of the head 1"x4"x not so deep. Abrasion on right side of the forehead ½"x1/4". No any injury on external part of the body. On dissection, chest wall was found intact. No any blood clot in chest cavity, both lungs were seen swollen. On dissection, froth was found coming out from both lungs. Heart-congested. Both chambers empty. Lungs cleaned, kidney were congested. Stomach contained undigested food material.

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Stomach wall was not congested. Some water materials were present".

The opinion regarding cause of death was reserved but most probably the same was on account of ante mortem drowning.

The autopsy on the dead body of Ram Khelawan Das revealed the following:- " It was found that there was no injury on external part. On dissection, no any blood clot in chest cavity. Both lungs were distended. On cut section, froth coming out from both lungs. Heart were congested. Right chamber contained blood clot. Left chamber empty. Lungs, Spleen and Kidney were intact. Stomach wall not congested. Contains undigested food materials".

The opinion regarding cause of death was reserved awaiting FSL report. In cross-examination, he has deposed that there were no external or internal injuries on the person of any of the deceased.

7. The statement of the accused was recorded under section 313 Cr.P.C., in which he has denied his involvement in the offence.

8. Mrs. Rashmi Kumar, learned counsel for the appellant, has submitted that there is no evidence to indicate that the appellant was responsible for the death of his wife and four children. She has submitted that the marriage of the appellant was solemnized with Kunti Devi about twenty years back and it has vaguely been stated by the witnesses that Rs.50,000/-was demanded by the appellant. None have stated about any demand or torture made by the appellant in their presence. According to her, the postmortem report belies the nature of allegations levelled against the appellant and though it is a clear cut case of suicide but there is no evidence to suggest that the appellant had acted as an abettor or instigator in the commission of suicide.

9. Mrs. Priya Shrestha, learned Special P.P., has referred to the testimony of P.W-1, P.W-7, P.W-8 and P.W-9 who all have stated about the demand as well as the torture committed upon Kunti Devi by the appellant. She has also submitted that there are no eye witnesses to the occurrence but the circumstantial evidence clearly points to the guilt of the appellant.

10. We have heard the learned counsel for both the sides and have also perused the Lower Court Records.

11. The allegation against the appellant in the fardbeyan of the informant (P.W-9) is that the appellant had committed the murder of his wife and children and had thrown the dead bodies in the well of Babu Lal Rana. The reason for such dastardly act was the non-fulfillment of Rs.50,000/-repeatedly demanded by the appellant from his inlaws. Admittedly, there are no eye witnesses to the occurrence and the implication of the appellant seems to have been on basis of circumstantial evidence. It is to be seen on a dissection of evidence on record as to whether such evidence warrants conviction of the appellant or not.

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12. Out of thirteen witnesses examined by the prosecution, P.W-10, P.W-11, P.W-12 and P.W-13 are official witnesses. So far as the rest witnesses are concerned, the relevant are P.W-1, 7, 8 and 9. P.W-9 is the informant and the brother of the deceased-Kunti Devi. His testimony reveals that the marriage of his sister was solemnized with the appellant twenty years back and right from the time of marriage, there was a demand of Rs.50,000/-. It is not the case of the prosecution that even though demands were fulfilled but fresh demands continued to be made by the appellant. As per P.W-9, there was a solitary demand of Rs.50,000/- for construction of house and business purpose from the time the marriage was solemnized and this demand also seems not to have fluctuated with the passage of time. He has also stated about the torture committed upon his sister by the appellant regarding such non fulfilment specially when the appellant consumed liquor. He, however, in his cross- examination has stated that no demand or torture was made in his presence. His wife also regularly used to visit her parents house. His evidence does not substantiate the demand of Rs.50,000/- and the torture committed upon Kunti Devi. P.W-1 and P.W-8 have also stated that no money was demanded in their presence. P.W-7 seems to be the sole witness who has stated about Kunti Devi disclosing about the torture to her parents. P.W-7 is in no way related to the deceased Kunti Devi, as such this assertion cannot override the testimony of P.W-9 who is the own brother of Kunti Devi and whose testimony reveals otherwise.

13. When we traverse the postmortem reports, we find that no external injuries were found on the person of the deceased save and except an abrasion on the head of the deceased-Karu Das. The probable cause of death was opined to be due to asphyxia on account of drowning. The viscera report has been marked as X for identification with objection and the same denotes that organo phosphorous pesticide was detected in the portion of viscera of all the deceased. There is no iota of evidence to evince an answer that all the deceased were assaulted and thrown in the well. The prosecution, therefore, has been unable to bring home the charge under section 302 IPC against the appellant. When the charge under section 302 IPC is ruled out what remains is whether it was an act of suicide and whether the appellant had abetted the commission of such suicide. The learned trial court seems to have explored the angle of suicide in the following manner:-

"Hence, the scenario as a whole inculcate sufficient confidence in the mind of the court that the incident indeed was occurred and the same was cause either in the capacity of committer or abettor by Moti Das. The FSL report although confirms the fact that the incident of death of the deceased indeed appears to be caused due to use of oregano phosphorous pesticide which is a highly poisonous substance. It means the death is not cause 8 Cr. Appeal (DB) No. 981 of 2015

simply out of submerging in the water of the well but prior to it. The said oregano phosphorous pesticide were administered to them whether the same was administered by Moti Das himself or under his pressure. The said Kunti Devi @ Jamuni Devi had taken the same herself and cause to be administered to her minor sons and daughter and only thereafter the incident of submerging appears to be happened. Hence, judicial consciousness leaves no option except to fix the complete responsibility and liability of the offence only to Moti Das and staturory presumption also supports the contention as a whole."

14. We also agree with such findings with respect to commission of suicide by Kunti Devi and administering pesticide to her minor sons and daughter. When the charge of murder has been ruled out what remains from the evidence of the witnesses is that of commission of suicide by Kunti Devi after snuffing out the life of her children. Can such circumstances enshrine the role of the appellant as an abettor?. To answer this, we have to once again consider the ocular evidence. The evidence of P.W-9 demonstrates that the relationship between the appellant and Kunti Devi was normal. She used to regularly frequent her parent's house. The demand of Rs.50,000/- throughout the entire married life of the appellant and Kunti Devi and torture on non fulfilment of such demand also appears to be farfetched as never was such demand or torture made in his presence. What could at best be culled out from the evidence of P.W-9 is that the relationship was normal, sometimes marred by domestic issues, which are common to every family and such fact would not alleviate the role of the appellant to be that of an abettor whose acts forced his wife to take her own life as well as the life of her children.

15. The learned trial court has considered both the angles but the same seems to be bereft of the actual facets of the case. In neither of the scenario highlighted by the prosecution, the culpability of the appellant is present and in such view of the matter, we have no hesitation but to set aside the judgement of conviction dated 15.12.2014 and order of sentence dated 23.12.2014, passed by Shri Arun Kumar Singh, learned District & Additional Sessions Judge, Sessions Court No. 1, Koderma in S.T. No. 54 of 2013, whereby and whereunder the appellant has been convicted for the offences punishable under sections 498A, 302 and 201 IPC and has been sentenced to undergo R.I. for three years for the offence punishable under section 498A IPC, R.I. for seven years for the offence punishable under section 201 IPC and imprisonment for life for the offence punishable under section 302 IPC.

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16.   This appeal is allowed.

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

(Rongon Mukhopadhyay,J)

(Ambuj Nath, J) Jharkhand High Court, Ranchi Dated 18th October, 2022 Rakesh/NAFR