Mamta Devi vs The State Of Bihar
2023 Latest Caselaw 2946 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    CRIMINAL APPEAL (DB) No.1021 of 2015
         Arising Out of PS. Case No.-67 Year-2012 Thana- KHIJARSARAI District- Gaya
   ======================================================

Pramod Kumar Sharma son of Late Umesh Singh resident of Village Tajpur, P.S. Khijarsarai, District Gaya.

... ... Appellant/s Versus The State Of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 1019 of 2015 Arising Out of PS. Case No.-67 Year-2012 Thana- KHIJARSARAI District- Gaya ====================================================== Mamta Devi Wife of Late Murari Sharma, resident of village Tajpur, P.S. Khijarsarai, District Gaya.

... ... Appellant/s Versus The State Of Bihar

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 1021 of 2015) For the Appellant/s : Mr.Gouranga Chatterjee, Adv. For the Respondent/s : Mr.Shivesh Chandra Mishra App (In CRIMINAL APPEAL (DB) No. 1019 of 2015) For the Appellant/s : Mr.Gouranga Chatterjee, Adv. For the Respondent/s : Ms. S.B.Verma App ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE SHAILENDRA SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 12-07-2023

1. Both the appeals have been heard together and are

being disposed of by this common judgment.

2. We have heard Mr. Gouranga Chatterjee, the Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

learned Advocate for the appellants and Ms. Shashi Bala

Verma, the learned APP for the State.

3. The appellants have been convicted under Sections

302/34 of the Indian Penal Code and Section 27 of the

Arms Act and have been sentenced to undergo R.I. for

three years, to pay a fine of Rs. 10,000/- and in default

of payment of fine, to further suffer R.I. for One year

under Section 302/34 of the IPC and R.I for five years,

to pay a fine of Rs. 5,000/- and in default of payment of

fine, to further suffer R.I. for six months under Section

27 of the Arms vide judgment of conviction and order of

sentence dated 09.09.2015/ 10.09.2015 respectively,

passed by the learned 6th Additional Sessions Judge,

Gaya in Sessions Trial No. 48/2014 /505/2012 arising

out of Khijarsarai P.S. Case No. 67 of 2012. All the

sentences have been directed to run concurrently.

4. Both the appellants are alleged to have killed

Murari Sharma, the brother of informant (PW8)

5. Appellant/Mamta Devi in Cri. Appeal (DB) No. Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

1019 of 2015 is the wife of the deceased/Murari Sharma

whereas Pramod Kumar Sharma (appellant in Cri. Appeal

(DB) No.1021 of 2015) is touted to be the paramour of

Mamta Devi.

6. As the allegation stands, Mamta fired at the

deceased; whereafter Pramod gave a knife blow below

the right eye of the deceased and escaped from the

roof-top where the murder was committed. Shortly

thereafter, the elder brother of the deceased arrived

and saw the deceased lying unconscious in a pool of

blood. The daughter of the deceased/Khusbhu (PW-5)

sat there, crying and mortified.

7. The FIR was got registered by the aforenoted elder

brother/Raj Kumar Sharma (PW-8) against unknown. He

has alleged in the FIR that in the night intervening

between 30th and 31st of May 2012, at about 12:30

A.M., he heard a sound of firing. After awaking from his

sleep, he shouted and raised alarm. In the meantime, he

heard Mamta speak out from window of her room that Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

somebody had fallen down. PW-8 was surprised to hear

Mamta as he had clearly heard the sound of firing. He

immediately went to the roof-top of the house of the

deceased, where he found the deceased having received

gun shot injury on his chest and an injury by knife

below his right eye. Neither he nor Mamta, according to

the fardbeyan, had seen the assailant.

8. However, PW-8 in his FIR has stated that no

sooner would he get any information about the assailant,

he would inform the investigating agency. This fardbeyan

was recorded at about 4:30 A.M. on 31.05.2012 at the

house of the deceased by the S.I. Pappu Kumar of

Khijarsarai Police Station in the District of Gaya. Be it

noted that aforesaid Pappu Kumar has not been

examined at the Trial. The FIR but has been proved by

the I.O. namely, Subhash Chandra Prasad (PW-9).

9. The sheet-anchor of the prosecution case is the

deposition of Khusbu Kumari, the daughter of the

deceased, who has been examined as PW-5. At the time Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

of deposing before the court, she was 14 years of age.

She has supported the prosecution case that on

30.05.2012, she was sleeping on the roof-top along with

her parents. At the time when she got up after hearing

the sound of firing, she remembered that Mamta was

taking a walk on the roof-top. When she was awakened

by the sound of firing, she found Mamta pointing a

weapon at the chest of her father and Pramod was

continuously assaulting him by a knife. Thereafter, it has

been alleged by PW-5 that Pramod took away the pistol

from the hand of her mother and escaped from the roof-

top. It was only then that Mamta had shouted that

somebody had fallen down.

10. Her uncle, Raj Kumar Sharma (PW-8), who resided

in the neighborhood, was surprised at her mother

shouting that somebody had fallen down. PW-8

immediately came to the roof and shortly thereafter

other persons of the village also arrived. In the

meantime, Mamta had left the house for arranging for a Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

vehicle to take her father to the hospital for first aid. She

has also stated before the Trial Court that her father was

taken to Islampur for treatment on a vehicle along with

Mamta, Pramod, Raju Sharma (PW-8) and other

villagers. The father of PW-5 had died and therefore his

dead body was brought back home.

11. Though, Khushbu had witnessed the occurrence

but because of fear of her mother (Mamta Devi), she did

not state anything to anyone what she had seen before.

She was also threatened by her mother that in case she

made any such statement implicating either her or

Pramod, she would be killed. Khushbu was very specific

in her accusation that her mother had illicit relationship

with Pramod about which she had learnt while living at

Bombay along with her parents. She had also

communicated this fact to her father, when her father

had assaulted her mother. Thereafter, the mother of

PW-5 had beaten her up for having told her father about

the illicit relationship with Pramod. On the day of the Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

occurrence, in the afternoon, Pramod had his lunch in

her house but did not stay back for dinner. After the

occurrence, she had seen that her mother's hand had

been injured, perhaps because of firing. The deceased

and Pramod both worked in Bombay. She and her

mother also stayed with the deceased at Bombay.

Pramod stayed in the same house at Bombay in which

PW-5 resided with her parents. On one of the occasions,

Mamta had asked PW-5 to apply oil on the body of

Pramod, which she had declined and therefore she was

beaten up by her mother. She has denied the suggestion

that the police wanted to record her statement on

02.06.2012 but she had refused to make any and had

given her statement only on 03.06.2012. Before

03.06.2012, she had not stated about what she had

seen, to anyone. She has also denied the suggestion that

her accusation is at the behest of PW-8, her uncle. When

her statement was recorded by the police, Mamta had

already been taken into custody.

Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

12. In her absence, she was being looked after by her

uncle, aunt and maternal uncle who had taken over the

agricultural operations in the land falling in the share of

the deceased.

13. There was no light on the roof where the murder

had been committed. Both, she and the deceased slept

on a mattress on the roof.

14. No empty cartridge was found at the place of

occurrence.

15. It is difficult for us to completely accept the

deposition of PW-5, for the reason that it does not

inspire confidence that her statement is devoid of any

mendacity. We say so for the reason that the story spun

by her does not appear to be in consonance with the

prosecution version. That she gave her statement after

three days of the occurrence is a very important factor

to doubt the correctness of her version. There is no

gainsaying that if a girl of 14 years sees her mother

killing her father, she would be mortified and would be Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

dumbfounded and perhaps transfixed to make any

statement on the occasion but it cannot be accepted that

she will keep to herself what she had seen in the night of

the murder for three days. This conduct, especially when

she knew about the unchaste relationship of her mother

(Mamta) with Pramod, which information she could not

have held back for three days, gives an inkling that

perhaps she was tutored by others, especially PW-8 (her

uncle) to make such a statement. She may have been

propelled to make such statement because of ill

treatment given to her by her mother, but to accept her

version that she saw the occurrence, is rather difficult.

She claims to have been awakened with the sound of

firing. She, then, was in a woke condition but by then

the deceased had already been shot at.

16. In this background, her assertion that she saw

Mamta pointing a pistol to her father does not appear to

be correct. Was Mamta readying herself to fire another

shot ? What was the occasion for Pramod to attack the Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

deceased by a knife and then escape after snatching the

weapon of assault from Mamta. Did he use the stairs or

jumped from the roof-top? Had he taken the stairs to

come down the roof, he would have surely crossed PW-

9/informant, who claims to have reached the roof of the

house of the deceased immediately. That apart if

Pramod and Mamta were the assailants, both of them

would have run away and would not have come back for

them to be arrested by the police.

17. The statement of PW-5 suggests that the

deceased, in an injured condition, was taken to Islampur

for treatment by Mamta, Pramod, Raju Shrama and

other villagers.

18. We do reckon that conduct of human beings differ

but if the conduct is so different that it would not appear

to be normal or natural to an outsider, such conduct

would engender doubt about such allegation. Mamta may

have stayed back thinking of some excuse for defending

herself but there would have been no occasion for Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

Pramod to have come back after making good his escape

for accompanying the injured/deceased to the hospital

located at a distance of about 6 to 7 Kms. Was this

some kind of a metanoia or the muliebrity of Mamta or

the story is unbelievable ?

19. The Investigating Officer of this case namely,

Subhash Chandra Prasad (PW-9) claims to have learnt

about the murder of a man in his house in village Tajpur.

The information was provided to him telephonically. On

such information, he visited the village and came to the

house of the deceased early in the morning of 31 st May

2012 and recorded the fardbeyan of PW-8. The FIR but

was scribed by Pappu Kumar (not examined), who only

prepared the inquest report. However, the FIR and the

inquest report have been proved by PW-9. He did not

find any incriminating article on the roof of the house of

the deceased where the murder had taken place except a

plastic container meant for keeping tobacco which was

seized. What is surprising is that if Mamta was alleged to Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

have murdered the deceased along with her paramour,

namely, Pramod, both of them would have been

arrested immediately after the lodging of the FIR. That

Mamta was present in the house is evident from the fact

that PW-9 saw that she had been injured in her hand.

Mamta was taken to the hospital for treatment and only

thereafter both Mamta and Pramod were arrested.

Pramod appears to have been arrested from his house.

Both the appellants are said to have made confession

before PW-9 about their participation in the occurrence.

20. Notwithstanding the aforesaid, the weapon of

assault could not be recovered.

21. The Doctor namely, Rajesh Kumar (PW-7) who

examined Mamta could not say with certainty that the

injury suffered by her in her hand was because of

gunpowder as she had handled the pistol. Gunpowder

alone could not have caused such injury which was of a

very superficial nature. He did not find any particle of

gunpowder and also found that such injury could have Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

been caused by scalding if the skin if it came in contact

with any hot liquid like oil or water.

22. Seen in this background, it is difficult for us to say

with certainty that the statement of PW-5 was truthful

but what concerns is the possible reason for a daughter

to falsely implicate her mother. Her father was dead and

with this accusation, the mother would go to jail. This

leaves a lingering doubt in our minds regarding the

reason for the "so-called" false implication at the hands

of the daughter.

23. Mr. Chatterjee, the learned counsel for the

appellants has submitted that human mind is too

complex and multivalent to explain and interpret every

conduct logically. The suspicion of PW-5 about the

unchaste relationship of her mother with Pramod may

have been true. She had seen her mother and Pramod in

a compromising position at Bombay. This accusation may

have been correct and being aggrieved by the conduct of

her mother, she may have chosen to falsely implicate Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

her and Pramod in one go.

24. We have also tried to analyze, for assuring

ourselves that we are not proceeding on the wrong

direction, by finding the possible reason for the elder

brother of the deceased to falsely implicate his sister-in-

law and Pramod. We could find no reason as after

Mamta was taken into custody and Murari was dead,

agricultural operation of the village on the land in the

share of the deceased was undertaken by the maternal

uncle of PW-5 (own brother of Mamta). Were the

brother of the deceased and brother of Mamta in

collusion ? We don't have any evidence to hazard such a

guess. Nonetheless, having tested the deposition of PW-

5 from all angles, we have found that her deposition is

not free of blemishes for it to be accepted in its entirety.

We have already noted that for no good reason, except

her being mortified by the sight of murder, of

withholding such information for three clear days. A

suggestion was also given to the I.O. that he deliberately Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

did not record the statement of PW-5 while she was

there at the scene of occurrence only to give some

opportunity to PW-8 (the informant) to prepare her to

make a statement in consonance with the prosecution

version. All other witnesses who are either the

neighbours of the deceased or his cousins, is on similar

lines. All of them knew that Mamta was carrying on an

illicit relationship with Pramod. This again leaves a doubt

in our mind that if this fact was known to the entire

village, the deceased also would have known it. Was he

a cuckold and had passively accepted the situation? In

any case, he was not a barrier for Mamta and Pramod to

carry on their affair. Why should he be killed ? What was

the trigger point when both Mamta and Pramod thought

of eliminating him?. These are issues which have

remained unanswered during the investigation as also

during the Trial.

25. Pramod took his lunch of rice and fish-curry in the

house of the deceased in the afternoon. There is no Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

evidence of his staying back in the night. Had he stayed

back in the night, PW-5 would have said that in her

belated statement before the police. All that she had to

say before the Trial Court was that after the lunch,

Pramod left the house and did not have dinner with the

family. The presumption then is that Pramod was not

there in the night in the house of the deceased. At what

point of time did he come to the roof-top of the house

and decided to kill the deceased and when was the

conspiracy hatched between Mamta and Pramod to

eliminate the deceased is not known. These are

important issues which needed to be reconciled before it

could be said with certainty that both of them had killed

the deceased.

26. As we have already noted, if it is difficult to accept

the version of PW-5 to be correct, equally difficult would

it be to answer as to who killed the deceased in the wee

hours of 31st of May 2012. There is no evidence of

burglary or any outsider having scaled the wall and come Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

inside the house of the deceased. One can only make a

guess but that would not be based on any clinching

evidence in that regard.

27. These set of facts, in conjunction with the post-

mortem report and the deposition of the Dr. P. N. Sinha

(PW-6) make the accusation against the appellants very

doubtful.

28. Seen from the lens of what PW-5 had to state

before the Trial Court, the deceased was shot by Mamta

from a very close range. The medical testimony does not

support such accusation. The post-mortem report reveals

that the deceased had suffered an incised wound on his

right cheek and a gun shot wound on the right upper

chest which proved to be fatal but PW-6 did not find any

charring, blackening or tattooing or inverted margin in

and round the gun shot wound of entry. He, therefore,

opined that it could be possible that the deceased was

shot at from a distance. Coupled with this, PW-9 not

having seized the blood stained clothes from the body of Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

the deceased, further makes us doubt the prosecution

case.

29. As we have already discussed, in such cases of

parricide, specially in villages, when most of the inmates

are aware of the unholy alliance between the wife of the

deceased and another villager, the entire area would

have been agog with the rumour that a wife had killed

her husband. All this happened but the I.O. who arrived

at the place of occurrence within few hours did not arrest

either of the appellants.

30. The appellants have not made any efforts to run

away from the scene of crime. We are surprised as to

whether they were afflicted by metanoia or had thought

of presenting before the society a conduct which would

lessen the doubt against them that they are the authors

of the injuries on the deceased which led to his death.

Both of them accompanied the deceased to hospital and

came back with the dead body when the deceased was

declared dead by the Doctors at Islampur hospital. Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

31. PW-9 could have informed the Islampur police

which falls in Nalanda district but the villagers and PW-9

and the appellants chose to come back to Tazpur village

which falls under the jurisdiction of Khijirsarai police

station in the district of Gaya. On top of it, PW-5 made a

statement against the appellants only after three days of

the registration of the FIR. All these facts coalesced

together has sent us doubting about PW-5 being the

eye-witness to the occurrence.

32. But for her, nobody has claimed to have seen the

act of assault.

33. For the aforenoted reasons, we have not been

persuaded by the State to affirm and ratify the judgment

and order of conviction.

34. Perforce, we set aside the judgment of conviction

and order of sentence dated 09.09.2015/ 10.09.2015

respectively, passed by the learned 6 th Additional

Sessions Judge, Gaya in Sessions Trial No. 48/2014 /

505/2012 arising out of Khijarsarai P.S. Case No. 67 of Patna High Court CR. APP (DB) No.1021 of 2015 dt.12-07-2023

2012.

35. The appeals are allowed.

36. As both the appellants are in jail, they are directed

to be released forthwith, unless their detention is

required in any other case.

37. Let a copy of this judgment be dispatched to the

Superintendent of the concerned Jail for compliance and

record.

38. The records of this case be also sent back to the

concerned Trial Court forthwith.

(Ashutosh Kumar, J)

( Shailendra Singh, J)

sunilkumar/-

Rajiv
AFR/NAFR                  AFR
CAV DATE                  N/A
Uploading Date            14.07.2023
Transmission Date         14.07.2023