Loknath Prasad, J.
1. This appeal is directed against the order of conviction and sentence recorded in Sessions Trial No. 157 of 1972 through which Shri Nawal Kishore Prasad, second Additional Sessions Judge, Arrah, convicted and sentenced appellants Chandra Shekhar Rai and Depana Devi to undergo life imprisonment for the offence punishable under Section 302 I.P.C. whereas all other appellants were convicted and sentenced to undergo rigorous imprisonment for three years under Section 201 I.P.C. and further appellant Lal Bihari Rai was sentenced to undergo rigorous imprisonment for one year under Section 353 I.P.C. with an observation that all these sentences under different counts shall run concurrently.
2. The prosecution case in short is that the informant Ram Naresh Rai of village Ramnagar within Tarari P.S. claimed that her daughter krishna Rai was married with appellant Chandra Shekhar Rai and she had a daughter Nirupama and two minor sons and she was living in her matrimonial house. The said Nirupama along with her two minor brothers came to the house of the informant with the help of some villagers of Jasidhi, P.S. Piro and disclosed to the informant that her father Chandra Shekhar Rai and great grand mother i.e. the wife of Indrashan Rai committed murder of her mother on 15.7.81 and after that she was confined in a room so that she could not disclose the occurrence to any body and then the dead body of her mother was cremated with the help of co-villagers. It has also been alleged that some co-villagers on the very day of occurrence i.e. 15.7.81 reported the matter to Piro police station and as such Piro police came to the place of occurrence village but they could not recover the dead body. The son-in-law of the informant Chandra Shekhar Rai had written two letters to the informant and these letters are also strong evidence to prove the occurrence and so the informant gave his fardbeyan on 1.8.81 at his house village Ram Nagar within Tarari police station and handed over those two letters written by appellant No. l and on that basis the case was instituted against these appellants and some others.
3. During investigation the police recorded the statement of some of the witnesses and it was also found that so far the death of the deceased krishna Rai concerned, the matter was reported to the Piro police by some co-villagers and as such one S.I. of police attached to the police station namely, Sri R.P. Singh, who has figured as D.W. 1 had gone to the place of occurrence and recorded the statement of appellant Chandra Shekhar Rai, the husband of the deceased, who claimed that the deceased i.e. his wife died due to illness and at that time the police had not taken any action as against the appellants and others but subsequently this case of murder was registered on the statement of the informant. The police after investigation submitted chargesheet against these appellants and some others.
4. All the appellants claimed themselves innocent in the Court below and denied to have committed murder of the deceased rather their defence is that Krishna Rai was suffering from some abdomen trouble and due to abdomen pain she died natural death and as such she was cremated and at the instance of the enemies this case was instituted subsequently.
5. The trial Court vide judgment dated 20.8.1985 believed the prosecution case and convicted and sentenced all these appellants in the manner indicated above. The accused Janeshwar Rai, Askrit Rai Banaras Rai @ Bisheshwar Rai, Ram Ashrary Sharma, Shyam Nandan Pandey and Shri Ram Singh who were charged only under Section 201 I.P.C. were not found guilty under this count and were acquitted by the trial Court.
6. The appellants being aggrieved and dissatisfied with the judgment and order of conviction and sentence preferred this appeal and also challenged the findings of the Court below.
7. So far appellant No. 5 Indrasan Rai is concerned, he died during the pendency of this appeal and so the appeal as against this appellant stands abated vide order dated 17.11.1994.
8. Now the question for consideration in this appeal is whether the prosecution has been able to prove the occurrence in the manner as alleged.
9. From the evidence on record it is more or less as admitted case and this much is well proved that Krishna Rai who was admittedly the daughter of Ram Naresh Rai of village Ram Nagar within Tarari police station in the district of Bhojpur was married with appellant Chandra Shekhar Rai and from his wedlock she had a daughter Nirupama who was aged about nine years at the time of occurrence and two minor sons and admittedly the eldest issue is Nirupama. It is also admitted position that Krishna Rai died on 15.7.81 in her matrimonial house situated in village Jasidih within Piro police station in the same district of Bhojpur and it is the prosecution case that she was murdered by the appellants whereas it is the defence version that she died due to illness. Admittedly the dead body of the deceased was disposed of by the appellants and she was cremated on the same day i.e. 15.7.81 in the place of occurrence village. It is also an admitted position that the appellant No. l Chandra Shekhar Rai is the husband of the deceased and son-in-law of the informant whereas appellant No. 2 Lal Bihari Rai is the father of the appellant No. 1 and appellant No. 3 Dipna Devi is the grand mother of the appellant No. 1 Chandra Shekhar whereas Chandradeo Rai is the own, brother of Chandra Shekhar being son of Lal Bihari Rai. So all the appellants are members of the same family.
10. Admittedly the deceased Krishna Devi the daughter of P.W.4 and wife of appellant No. l Chandra Shekhar Rai died in the afternoon of 15.7.81 in matrimonial house and even according to the defence version she died due to long illness and stomach pain and admittedly she was cremated by the family members in the same village in that evening and as such the dead body could not be recovered by the police for the post mortem examination. According to the prosecution case, the deceased was murdered by her husband and other appellants due to ill relation between the husband and the wife, so the only question for consideration before us is if at all the deceased died due to natural death or she was done to death and in order to screen the offenders her dead body was disposed of surreptitiously on that very day, as alleged by the prosecution. No doubt on the point of occurrence, the prosecution could examine P.W.I Parsuram P.W. 2 Harinath Ram and P.W. 3 Kumari Nirupama Rai who is the own daughter of the deceased. But from the evidence on record this much can be said that P.W.3 Nirupama Rai is the most important witness on the point of the entire occurrence right from the genesis. It is the evidence of this witness that on the alleged date of occurrence appellant Chandra Shekhar Rai, her own father assaulted her mother Krishna by lathi whereas her great grand mother Dipna Devi assaulted by fists and slaps and also pulled her hair and at that time her great grand mother and father kept them confined in a room and not allowed to come from the room and in the evening when they were taken out from the room she was informed that her mother died and she had already been cremated and she and two younger brothers were not allowed to meet any person and also she was asked by her father and great grand mother to tell others that her mother died due to illness. It is also her evidence that after few days of the occurrence she was taken to the house of her maternal grand father (P.W.4) by her relation Jagdish Pandey of the same village then she disclosed the entire fact to her maternal grand father P.W.4 and subsequently her statement was also recorded by the police and also before a magistrate i.e. under Section 164 of the new Cr. P.C.
11. The witness has further stated that even prior to the occurrence there was ill relation between her father and the mother and quarrel was going on between them off and on and one day prior to the occurrence there was quarrel between them because her mother had not prepared fried vegetable and out of annoyance her father threw a glass on her mother and her mother in retaliation threw that very glass on her father which resulted in the injury on the lips and tension continued between her parents and due to that this incident took place. This witness has further stated that on 15.7.81 again there was quarrel between them and her father i.e. appellant Chandra Shekhar assaulted her mother by lalthi and great grand mother Dipna Devi assaulted her by fists and slaps and also pulled her hair. For that reason her mother died and she along with minor brothers were kept confined in a room.
12. Learned Counsel for the appellants made an attempt to discredit the testimony of this child witness mainly for the reason that it is unsafe and very dangerous to rely upon a child witness because the child witness has a tendency to speak the version tutored to him and in the instant case the evidence of this witness also suffers from material infirmity for the reason that she has stated before the trial Court that her great grand mother not only pulled her hair but also assaulted by fists and slaps. Such statement was not given before the magistrate Under Section 164 of the new Cr. P.C. moreover, this witness was examined by the police for the first time after fifteen days or so i.e. on 1.8.1981 when she was in the custody of her maternal grand father and there is chance she was tutored by her maternal grand father. In such circumstances it was contended that testimony of this child witness cannot be relied upon and in support of this contention learned Counsel for the appellants relied upon some authorities of the Supreme Court reported in 1969 BLJR 90 and that of A.I.R. 1977 S.C. 135.
13. On the other hand it was submitted by the learned Counsel for the prosecution that the evidence of this child witness is very much consistent and only there are some minor contradictions in her evidence. Moreover, the evidence of this witness also finds corroboration from the evidence of other witness and surrounding circumstances because she was kept confined in a room and was not allowed to meet any person by her father and other family members. She was not in a position to disclose about the occurrence immediately after the occurrence and the moment she came to the house of her maternal grand father on 20.7.81 she disclosed all these material facts to her maternal grand father P.W.4 who also consistently supported the version of this witness. Moreover, it is not excepted from this witness who is own daughter of appellant Chandra Shekhar to depose against him unless she had seen the brutal killing of her mother for the reason of ill relation between her mother and appellant Chandra Shekhar Rai and so it is quite natural that this witness must have disclosed the truth. In support of this contention learned Counsel for the prosecution has relied upon the authority of the Supreme Court reported in A.I.R. 1981 S.C. 1122. In this case a five years old child witness who was solitary witness and his testimony regarding the murder of his mother by the servant of family was accepted to be true and conviction was recorded. The authority relied upon by the learned Counsel for the appellant indicates that the evidence of child witness is to approach with great caution and if there is serious infirmity and contradictions in his evidence or the evidence does not find corroboration from other circumstantial evidence then such evidence could not be accepted. On the other hand, from the authority cited on behalf of the prosecution and also from the evidence on record this much can be said that so far P.W.3 is concerned no doubt she was aged about nine or so but the trial Court tested this witness and it was the opinion of the Court that she properly understood the questions and gave rational answers and understood the implication of the oath and oath was administered to her. Moreover, the evidence of this witness appears to be highly consistent and further it is not expected from a child witness any basis because in that contingency this witness is exposed to a great risk as she will not be able to get the help and protection from the family of the father and even after taking such risk this witness deposed against the father, so this much can be said that she is truthful and had been the occurrence in which her mother was done to death. Moreover, the evidence of this witness also finds corroboration from the evidence of
P.W. 1 and 2 and other circumstancial evidence including the letters written by the appellant Chandra Shekhar to his father in law. In the circumstances I considered the evidence of this child witness with great caution and care and fully satisfied that her evidence inspire confidence and to be relied upon for the reasons mentioned above.
14. The evidence of this witness also finds corroboration from the evidence of P.W.4 Ram Naresh who is a responsible witness because he is not only an old man but retired as lecturer of History from a reputed college. This witness has stated that his daughter Krishna was married with appellant Chandra Shekhar Rai sometime in the year 1966 and after the marriage both of them were complaining against the behaviour of each other and so there was ill relation and he used to advise them off and on and on 14.7.81 he received a letter from his son in law Chandra Shekhar Rai written by him which has been marked as Ext. 1 and so he sent a reply to this letter to his son in law through the bearer of the letter. It is also his evidence that on 16.7.81 he learnt about the death of his daughter Krishna and so he rushed to village Jaisidih on that very day and appellant Chandra Shekhar Rai and his father told him that Krishna died due to cholera and he was not allowed to meet his grand daughter i.e. P.W. 3 and grand sons who are much younger to P.W.3 and on 20.7.81 he informed his relation Jagdish Pandey of village Jaisdih to bring P.W.3 and her two younger brother and Jagdish Pandey actually brought P.W.3 and her two younger brothers on that very date and then he could learn from P.W.3 that her mother was murdered by her father and great grand mother in the manner indicated above and they were confined in a room and not allowed to meet any person and they were asked to tell other persons that her mother died due to illness. It is also the evidence that Jagdish Pandey also brought a letter of his son in law i.e.
Ext.1/A and on 1.8.81 the Officer Incharge i.e. P.W. 10 came to his house and recorded his statement i.e. Ext.2 and also recorded the statement of P.W.3. The evidence of this witness was assailed by the learned Counsel for the appellants for the reason that according to this witness he got information about the occurrence on the next day i.e. on 16.7.81 but still this witness had not instituted criminal case and this criminal case was instituted for the first time as late as on 1.8.81 when the fardbeyan of this witness was recorded in his house by the Officer Incharge of Piro police station and this officer incharge also made delay in institution of the case, so the entire prosecution appears to be doubtful and not to be relied upon.
15. No doubt the delay in instituting a criminal case creates suspicion but if the delay is properly explained then in that contingency no adverse inference can be drawn in the facts and circumstances of each case. In the instant case P.W.4 has stated that when he had gone to village Jaisidih on 16.7.1981 he learnt that some villagers had instituted a criminal case so he was under impression that criminal case has already been instituted. Moreover, he was not allowed to meet his grand daughter. In that view of the matter he was not aware of the actual fact as to how his daughter was done to death and appellant Chandra Shekhar Rai had given a totally different version about the death of Krishna. Moreover evidence on the record i.e. Ext. 3 and even the admission of D.W.I Sub-Inspector of Police attached to Piro police station clearly indicated that an information was lodged at the police station on the date of occurrence itself by P.Ws.l and 2 about unnatural death of the deceased and D.W. 1 came to place of occurrence immediately and found the dead body of the deceased burning and appellants did not allow to extinguish the fire and to recover the dead body. So P.W.4 was under impression that a criminal case has already been instituted by the villagers, moreover, from the evidence of this witness it can be said that being a responsible man of the area and as the deceased died leaving behind three children he was reluctant to institute any criminal cases and on the basis of Ext. filed before Dy. SP.. by the villagers this officer incharge P.W.10 came to this witness then he gave his statement which was recorded as fardbeyan. Moreover this witness is the own father in law of the appellant Chandra Shekhar Rai and it is not expected from him to institute a false case without any reason when admittedly there was no demand of any dowry and only there was'ill relation between the couple arid at the same time even the deceased left behind three minor children definitely had fallen on him.
Under the circumstances the evidence of this witness definitely corroborate the evidence of P.W.3 and delay institution of the F.I.R. in this very particular case has been properly explained.
16. On the point of occurrence the prosecution has also examined P.W. 1 Parsu Ram and P.W.2 Harinath Ram. It is the evidence of P.W.I that on the date of occurrence at about 12 to 1 o'clock in the noon when he was going back to the village for meal he heard sound of cry from the house of the accused Chandra Shekhar Rai and as such he got up on the roof of Shri Ram Singh which was contiguous to the house of appellants Chandra Shekhar Rai and had seen the wife of Chandra Shekhar Rai lying on the ground and he had also seen that Chandra Shekhar Rai took his daughter and sons inside in a room. Similarly, P.W.2 has also stated that on the date of occurrence in the after noon he went inside the house of appellant Chandra Shekhar Rai and had seen Chandra Shekhar Rai and his grand mother assaulting the deceased. It is also the evidence of these two witnesses that immediately after that they had gone to the police station and informed about the occurrence to the Sub-Inspector of police and then Sub-Inspector of police came to place of occurrence and found the dead body burning and these appellants were present there and when police tried to extinguish the fire then appellant Lal Bihari told them that at any cost they will burn the dead body. It is also their evidence that subsequent to the occurrence they were threatened by Ram Singh and Lal Bihari of dire consequences, so they got a petition drafted by P.W.9 Krishna Ram and filed a copy of this petition to the officer incharge Piro police station and also to Dy. S.P. The Ext.3 was written by P.W. 9 Krishna Ram.
17. It was argued on behalf of appellants that admittedly these two witnesses are in inimical term with the appellants because it has come in the evidence that Janeshwar Roy filed a criminal case as against these witnesses and P.W.2 also admitted that Ramchandra Ahir filed a criminal case as against some of the appellants prior to the institution of this case and they figured as witnesses against the appellants, so there were inimical term with the appellants and as such they tried to implicate the appellants by giving a false version of the occurrence. Moreover, it is not expected from Ram Singh to allow
P.W. 1 to enter in his house and to see the occurrence from the top of the roof when he was in inimical terms with this witness. Further it was submitted that Ext. 3, a petition filed by these witnesses indicates that the petition was filed on 15.7.81 i.e. on the date of occurrence and it has been mentioned in the petition that the deceased was done to death by the appellant by pressing her neck so a different version was given in Ext. 3.
18. On perusal of Ext. 3 it can be said that the date of this petition is 23.7.81 and endorsement on the petition also indicates that on 23.7.81 this petition was received and Dy, S.P. ordered for enquiry by the officer incharge. Moreover, the evidence of these two witnesses also clearly indicate that two to three days after the occurrence when they were threatened by the appellants they filed this petition before Dy. S.P. Moreover, from the evidence of P.W.5 Awadesh Mishra, a constable who was attached with Piro police station on 15.7.81 it is clear that on the date of occurrence i.e. 15.7.81 two persons from Jaisidih village came and reported the matter about the death of the deceased to sub inspector of police. Apparently these two persons are non else but P.Ws. 1 and 2. At the same time evidence of D.W.I another Sub Inspector of Police attached to Piro police station at that time and that of Ext.A, which is station diary entry of 15.7.81, it can be said that on 15.7.81 the matter was reported to the police and too orally and thus it can be said that actually on 15.7.81 P.Ws. 1 and 2 orally reported the matter and subsequently on 23.7.81 a petition was filed to the Dy. S.P. that they are being threatened by the appellants as they reported the occurrence and on that basis enquiry was ordered and then officer incharge i.e. P.W. 10 took up the matter and recorded fardbeyan of P.W. 4 and investigation was taken up. This it can be said that Ext.3 was filed to the Dy. S.P. subsequently i.e. on 23.7.81 and at the top of the petition date 15.7.81 was mentioned simply because the date of occurrence was 15.7.81. The contents of the petition also indicate that this petition was filed subsequently after the occurrence.
19. No doubt these two witnesses were in inimical terms with the appellant but only on this score their evidence cannot be discarded and at best their evidence may be examined with due care and caution. Moreover, it was submitted on behalf of the prosecution that the village was divided in two groups. In one group there are Harijans and in other group there are caste men and relations of the appellants. In such situation independent witnesses are not expected to come because the caste man and relation of the appellants were trying to help the appellants., and to hush up the matter. In support of this contention learned Counsel for the appellants has relied upon an authority of the Supreme Court reported in A.I.R. 1975 S.C. 1985
(Badri and Ors. v. State of Uttar Pradesh). In this case also the prosecution could not examine any independent witness for the reasons that they might not be willing to figure as witness but the evidence of P.Ws. 1 and 2 scrutinised with caution and it is well proved that P.Ws. 1 and 2 were present at the time of occurrence and reported about unnatural death of the deceased to the police on 15.7.1981 and the police party led by D.W.I came to the place of occurrence on 15.7.81 so their evidence support the prosecution case that death of the deceased was definitely unnatural and the deceased was done to death.
20. No doubt the prosecution has also examined P.Ws. 6 Subedra Yadav and P.W.8 Ramchandra Singh of the same village who were working as Choudhar but they were declared hostile and so their evidence is not at all material for coming to a conclusion. Similarly, P.W.10 Kedar Nath Singh, the then officer Incharge of Piro police station who investigated the case also was examined and he was partly cross examined but on the request of the defence his cross examination was deferred for the next date but unfortunately this witness could not turn up for further cross examination and as such it was submitted by the learned Counsel for the appellants that the evidence of the witness cannot be used as against the appellants because the appellants were not given proper opportunity to cross examine him. It is true that this witness was not fully cross examined but he was partly cross examined. Even if his evidence cannot be used against the appellants for the reasons mentioned above still the defence is not put to any prejudice for the reason that there was no objective finding by the investigating officer because neither the dead body was recovered nor any sign of violence could be detected at the place of occurrence due to late institution of the case and also no serious and material contradiction has come in the evidence of the witnesses. In that view of the matter even if the evidence of investigating officer cannot be used against the appellants then the appellants are not put to any prejudice for the reasons mentioned above.
21. The prosecution case further finds support from the surrounding circumstance and other documentary evidences on the record. From the evidence of P.W.4 it is clear that on 14.7.81 he received the first letter of his son in law i.e. Appellants Chandra Shekhar Rai and on 20.7.81 he received another letter when P.W.3 came to his house and he gave Exts. 1 and I/A to the investigating officer on 1.8.81. No doubt under Section 313 Cr. Pc. the appellants has denied that these two letters were written by him but P.W.4 proved that letter had been written by appellant Chandra Shekhar Rai and practically no cross examination was done and no suggestion was given that these two letters were not written by appellant Chandra Shekhar Rai rather only suggestion was given to P.W.4 that he had not sent any reply of Ext. I/A which indicates that at that time the defence admitted that these two letters were written by the appellant Chandra Shekhar Rai. Moreover, on persual of the judgment of the trial Court it appears that the trial Court also verified hand writing of Exts. 1 and I/A from other wilting and signature of appellant Chandra Shekhar Rai which were on the record and he too came to the conclusion that these two letters were written by appellant Chandra Shekhar Rai. Ext, 1 which is dated 14.7.81 clearly indicates that there was ill relation between the husband and the wife and appellant Chandra Shekhar Rai sustained injury at the hands of the deceased and so he asked father in law to take his daughter otherwise anything may happen. This indicates that the appellant Chandra Shekhar Rai was annoyed with his wife and there was contemplation in his mind of any serious action against her. Similarly from Ext. I/A it can be inferred that the deceased Krishna Rai done to death and this appellant Chandra Shekhar Rai had a major hand as he was repenting for his action and pleaded guilty and also explained to his father in law that he was compelled by his family members earlier and so had not sent his children to him earlier because his family members asked him not to do so, so Ext. I/A also indicates that P.W.3 and her two younger brothers were kept in confinement and were not allowed to meet any person and were sent to their maternal grand father, as late as on 20.7.81 through one Jagdish Pandey, No doubt Jagdish Pandey could not be examined by the prosecution but inspite of that this fact is well proved even from Ext.l/A that P.W.3 and her two younger brothers were sent to their maternal grand father after the occurrence i.e. on 20.7.81. So Ext.l/A clearly support and corroborate the evidence of P.Ws.3 and 4 and prove the guilt of appellant Chandra Shekhar Rai and his grand mother.
22. The prosecution case further finds support from other surrounding circumstantial evidence and the conduct of the appellants. It has come in the evidence that the deceased was done to death in the afternoon of 15.7.81 and her minor children were kept in confinement so that they may not speak anything about the occurrence and immediately she was cremated in the evening and even though the police party arrived, the police party was not allowed to extinguish the fire. Admittedly, the house of P.W.4 i.e. father of the deceased had a distance of few miles from the place of occurrence and when there was ill relation between the husband and the wife and the death was natural as claimed by the defence then in such situation the appellants should have informed the P.W.4, the father of the deceased to show their bonafide in the matter but that has not been done rather in great haste the dead body was cremated and even no evidence was adduced to show that the deceased was suffering from any ailment that too from long time.
23. Learned Counsel for the appellants submitted that in a case of murder, the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence and that it is not the law where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court and in support of this contention he has relied upon an authority of the Supreme Court reported in : 1991CriLJ330 (S.D. Soni v. State of Gujrat).
24. It is true that the prosecution has to prove its case and is not expected to take benefit from the lacuna or false defence version but certainly the surrounding circumstances and the evidence on record are to be taken into consideration for lending support to the truth or otherwise of the prosecution case. In that view of the matter if the surrounding circumstances and the conduct of the accused persons were obviously unnatural then this may lend support to the prosecution case.
25. Of course, it is the defence version that the deceased died natural death and she was suffering from stomach trouble from before and due to stomach pain she had died. In support of this contention of behalf of the defence D.W.I Rameshwar Prasad Singh a Sub Inspector of Police attached to Piro police station at that time was examined. Admittedly this witness had gone to the place of occurrence in the same evening that is on 15.7.81 along with the constable, who has figured as P.W.5 and others and he made station diary entry,
Ext. A which was made on 15.7.81 at 4 P.M. and also recorded the statement of the appellant Chandra Shekhar Rai which indicates that he learnt rumour that the deceased died after consuming poison, so he is going to the place of occurrence for enquiry and
Ext. A/1 is another station diary entry which was made on 16.7.81 showing therein that when he had gone to the place of occurrence then he found the dead body was completely burnt and learnt from Chandra Shekhar i.e. one of the appellants and his family member that the deceased was suffering from ailment and treatment was going on and they were thinking to remove her for treatment at Patna but she died on 15.7.81 due to stomach pain. It was submitted on behalf of the prosecution that the conduct of this officer was highly suspicious and he was bent upon supporting the appellants and as such a departmental enquiry was also made and adverse remark was passed by the superior officer. From Ext. I/A it appears that then officer incharge also expressed his displeasure about the contents of the station diary entry. Moreover, his evidence is not reliable for the reason that his evidence and the contents of the station diary are not reliable for the reason that he had claimed that when he reached the place of occurrence the entire dead body was burnt. On the other hand, the evidence of constable (P.W.5) and P.Ws.l and 2 is completely otherwise that the dead body was in burning process and this officer had not made any attempt to extinguish the fire rather he stated that he went to the house of Lal Bihari Rai in the night. Moreover, the entry that the deceased died due to consuming the poison is also false because it is neither the case of the prosecution nor the version of the defence that the deceased committed suicide. Further more, this witness has not disclosed the name of any witness of the village from whom he gathered about the illness of the deceased. Surprisingly in such situation he had neither examined the children of the deceased nor the father of the deceased or had instituted any case rather tried to hush up the matter by making only station diary entry. |
At the same time if the deceased was suffering from some ailment and treatment was going on then certainly the appellant should have produced some prescriptions of the doctors before the
D.W. I or in the Court but that has not been done. These clearly indicate that there is no substance in the defence version that the deceased died due to illness.
26. On careful consideration of the entire evidence on the record and surrounding circumstances, as discussed above this fact is well proved that there was ill relation between the husband and the wife from before and even on 14.7.81 there was altercation and throwing of glass by each other and on the next day i.e. 15.7.81 appellant Chandra Shekhar Rai assaulted with lathi to the deceased and the lady appellant Dipna Devi pulled her hair, so the deceased died and only to destroy the evidence and to screen the offenders the dead body was suruptiously burnt in the place of occurrence village on that very day without any loss of time.
27. Learned Counsel for the appellants submitted that admittedly there was ill relation between the husband and the wife and so the appellants might have assaulted with lathi out of anger only to teach a lesson to his wife and it was not his intention to commit her murder. In that view of the matter appellant No. l is definitely not guilty Under Section 302 I.P.C. It can be said from the evidence on the record that this very appellant Chandra Shekhar Rai was annoyed with his wife and his intention is duly reflected in his letter i.e. Ext. 1 and gave lathi blow and also kept her daughter in confinement so that she may not help her mother and deceased died instantaneoulsy. Thus it can be said that the blows were given by such force that the deceased lady died on the spot and so the appellant Chandra Shekhar had intention to commit the murder of his wife.
In that view of the matter he is guilty under Section 302 I.P.C. and the Court below rightly convicted and sentenced him to undergo rigorous imprisonment for life and as such does not require any interference.
28. So far Appellant Dipna Devi is concerned, from the evidence of P. W.2 it can be said that Dipna Devi had simply pulled the hair of the deceased. P.W. 3 who is the eye witness has also stated that her great grand mother i.e. this very appellant pulled the hair of her mother and also assaulted by fist and slaps but this witness has not stated about the assault by fists and slaps by this appellant Dipna Devi before the magistrate when she was examined Under Section 164 of the new Cr. P.C. so this much can be said that this appellants Dipna Devi simply pulled the hair of the deceased and she had not instigated the main accused Chandra Shekhar Rai even for killing his wife. In that view of the matter this appellant had no intention to commit the murder of the deceased and she simply pulled her hairs.
In that view of the matter she is simply guilty under Section 323 I.P.C. and thus her conviction Under Section 302 I.P.C. is hereby modified to that of under Section 323 I.P.C. It may be noted that she is a lady and aged about 70 years or so. In that view of the matter she is sentenced to pay a fine of Rs. 1000/- (One thousand) and in default to undergo rigorous imprisonment for two months Under Section 323 I.P.C.
29. So far appellant Lal Bihari Rai, who is the father of the main appellant Chandra Shekhar Rai is concerned, he has been convicted and sentenced to undergo rigorous imprisonment for a period of one year under Section 353 I.P.C. for the reason that he obstructed D.W.I and other police party to discharge of their duties by not allowing them to take out the dead body of the deceased.
30. It was contended on behalf of the learned Counsel for the appellants that practically there is no evidence to justify his conviction under this count and at best it can be said that this appellant is guilty under Section 201 I.P.C. On this point there is evidence of
P.W. I that the police constable asked the accused persons not to burn the dead body but this appellant insisted to burn the dead body and P.W.5 who is one of the constables simply stated that one persons insisted that the dead body will be burnt and actually no force was used to prevent the police party from taking out of the dead body. Moreover, D.W.l, Police Sub-Inspector, who was heading the police party himself admitted that at burning Ghat the dead body was completely burnt, so it can be said that this appellant had not used any force or obstructed the police party in discharge of their duties. In that view of the matter conviction under Section 353 I.P.C. and sentence as awarded by the trial Court is hereby set aside and he is acquitted under this count.
31. So far all the appellants except Dipna Devi are concerned, they were also found guilty under Section 201 I.P.C. and the Court below sentenced them to undergo rigorous imprisonment for three years each and it appears from the record that they are members of the same family and under compelling circumstances they had gone to the burning Ghat in order to help the main accused. Moreover, all these appellants remained in custody for more than a month during investigation and trial. In that view of the matter though these appellants are found guilty under Section 201 I.P.C. but the sentence as awarded by the trial Court is hereby modified and reduced to the extent that they remained imprisonment for a month or so during trial and no further punishment is necessary in the facts and circumstances of the case. Similarly, appellant Chandra Shekhar Rai is found guilty under Section 201 I.P.C. but no further sentence is necessary for the reason that he has already been convicted and sentenced Under Section 302 I.P.C.
32. In the result, the appeal is dismissed so far appellant Chandra Shekhar Rai is concerned as he was found guilty Under Section 302 I.P.C. and sentenced to undergo rigorous imprisonment for life. His conviction and sentence is hereby maintained and confirmed and his bail bond is hereby cancelled. The trial Court will take all steps for his apprehension for sending him to jail to serve out his remaining period of sentence, as awarded by the trial Court Under Section 302 I.P.C. and no separate sentence is awarded Under Section 201 I.P.C. Similarly appeal of Lal Bihari Rai is allowed in part. His conviction and sentence Under Section 353 I.P.C. is hereby set aside.
33. Similarly, appeal of appellants Chandradeo Rai and Lal Bihari Rai is dismissed with modification in sentence and their conviction and sentence Under Section 201 I.P.C. is concerned, it is reduced to the period already undergone during investigation and trial.
34. So far appeal of Dipna Devi is concerned, it is allowed in part and her conviction and sentence Under Section 302 I.P.C. is modified and reduced to one under Section 323 I.P.C. for the reasons mentioned above, she is sentenced to pay a fine of Rs. 1000/- only and in default to undergo rigorous imprisonment for two months and it is ordered that she should deposit the fine within a period of two months from the date of this order, failing which the trial Court will take step for apprehension of this appellant to undergo imprisonment as awarded by this Court in default of fine.
Ramnandan Prasad, J.
35. I agree.