Full Judgment
Manohar Lal Visa, J.
1. This appeal is directed against the judgment dated 9.2.1998 and order dated 10.2.1998 passed by 3rd Additional Sessions Judge, Saharsa, in Sessions Trial No. 37/1997 convicting and sentencing the sole appellant to undergo imprisonment of life and to pay a fine of Rs. 1,000/- and in default thereof to undergo another term of RI for three months Under Section 302 of the Indian Penal Code {for short, I.P.C.).
2. The case of prosecution as disclosed in the Fardbayan of informant Ram Bharosi Sharma, the then Choukidar (P.W. 9), in short, is that on 23.9.1996 at 4 p.m. informant heard Hulla raised in his Mohalla that appellant after assaulting his wife with fists and slaps pressed her neck as a result of which she died in the house. When the informant went to the house of appellant, Umda Devi (P.W. 5), mother of appellant told him that on the day right from 10 a.m. there was altercation between the appellant and his wife on account of grinding Marua and on that account in the evening scuffle between the two had taken place. The Fardbayan of informant was recorded by SI Harendra Singh (P.W. 8) on 23.9.1996 at about 9 p.m. at the place of occurrence and in the Fardbayan the informant stated that because mother of appellant was not intending to give her statement, therefore, he gave information of the occurrence. On the basis of Fardbayan a case Under Section 302, I.P.C. was instituted against the appellant and after investigation charge-sheet against the appellant Under Section 302, I.P.C. was submitted and the case was committed to the Court of Sessions and thereafter charge Under Section 302, I.P.C. was framed against the appellant. As the appellant denied the charge he was put on trial and after trial he was found guilty Under Section 302, I.P.C. and was accordingly convicted and sentenced as indicated above. No witness on behalf of the appellant has been examined but from the trend of cross-examination of prosecution witnesses the case of appellant appears to be of his complete innocence.
3. In order to prove its case the prosecution has examined 10 witnesses. Ram Bharosi Sharma (P.W. 9) is the informant. Dr. Shankar Pd. Bishwas (P.W. 10) is the doctor who conducted autopsy on the dead body of deceased. Harendra Singh (P.W. 8) is the IO Shukhdeo Poddar (P.W. 3) is a formal witness who has proved signature (Ext. 1/1) on the inquest report. Chandra Kishore @ Chando Poddar (P.W. 1), brother of appellant, has said nothing about the occurrence and he has been declared hostile. Rajendra Pd. Yadav (P.W. 2) has although proved his signature (Ext. 1) on the inquest report but has said that he did not see anything except the dead body but inquest report (Ext. 3) was not prepared by the police in his presence. Chhatari Paswan (P.W. 4) had gone to the house of appellant along with informant. Umda Devi (P.W. 5), mother of appellant has not supported the case of prosecution and she has been declared hostile. Dinesh Poddar (P.W. 6) and Rabia Devi (P.W. 7) are parents of deceased.
4. Dr. Shankar Pd. Bishwas (P.W. 10), in his evidence has said that on 24.9.1996 at 3 p.m. he conducted post-mortem examination on the dead body of deceased and found the following injuries :
(i) Orth was coming out of semi open mouth.
(ii) Blood clot was found in the nostril and blood stains on the cheek.
(iii) Bruise of 21/2 x 1' on the right side of the neck at the level of the thyroid cartilage.
According to him, cause of death was asphyxia as a result of compression of the neck and time elapsed since death was 36 hours. He has proved his post-mortem examination report (Ext.' 4). From his evidence it is established that death of deceased was homicidal.
5. Ram Bharosi Sharma (P.W. 9), the informant, is a Choukidar and he has said that on the day of occurrence when he was returning from his duty and reached near the house of appellant he found 4-5 women talking to each other and on inquiry they told him that appellant had committed the murder of his wife and when he inquired from Umda Devi (P.W. 5), mother of appellant, she told him that appellant had asked her wife to grind Marua on which altercation between appellant and his wife had taken place and appellant thereafter slapped his wife and when she fell down the appellant pressed her neck. When he went, inside the house of appellant he found the wife of appellant dead and he thereafter went to the Chhatari Paswan (P.W. 4), another Choukidar and brought him at the house of appellant and he himself remained near the dead body and sent Chhatari Paswan to Police Station for giving information and thereafter police reached there and his Fardbayan was recorded on which he put his signature (Ext. 1/2). In his cross-examination he has admitted that he is not eye-witness to the occurrence and he cannot say the name of those females from whom he made inquiry. Umda Devi (P.W. 5), mother of appellant has said that one year before her daughter-in-law died but at the same time, she has further said that she had not said anything to police. She has been declared hostile. The evidence of informant that this witness had told him that on the question of grinding Marua altercation between the appellant and wife had taken place and thereafter appellant slapped his wife and pressed her neck is not supported because this witness has not said any where that she gave such information to informant. Dinesh Poddar (P.W. 6) is the father of deceased and has said that he received information that her daughter died. Besides this, he has not said anything and he has been declared hostile. In his cross-examination he has said that relationship between appellant and his wife was cordial and no dispute had arisen between them and her deceased daughter had not made any complaint against the appellant. Similarly, Rabia Devi (P.W. 7), mother of deceased, has simply said that she received information about the death of her daughter and besides this, she has said nothing and she has also been declared hostile. In her cross-examination she has said that deceased was being kept by her son-in-law properly and deceased never complained against her husband. Chhatari Paswan (P.W. 4), Chaukidar, in his evidence has said that one day informant Ram Bharosi Sharma, who is also a Choukidar, came to his house and informant that a murder had taken place in the house of appellant and he then along with him went to the house of appellant where he found that wife of appellant was dead but he did not see any injury on her body. He has also been declared hostile.
6. Considering the entire evidence on record we find that there is no witness who has claimed to have seen the deceased assaulted by the appellant. From the judgment of the Court below we find that after considering the medical evidence that death of deceased was as a result of comprehension of her neck as well as considering the fact that appellant happens to be the husband of deceased and dead body of deceased was found in the house of appellant the Court below opined that it is a case covered by Section 106 of the Indian Evidence Act and circumstances how the deceased was killed must be within the special knowledge of appellant and he owns the responsibility in the form of heavy burden on him to state as to how his wife was murdered. It was further been observed that because there was no explanation from the appellant and he has not discharged the special burden lying on him, therefore, he was guilty for committing the murder of his wife. We are quite unable to agree with the aforesaid reasoning of the Court below. It is true the deceased was wife of appellant. The evidence of some prosecution witnesses shows that dead body of deceased was found in the house of appellant where admittedly deceased being his wife was residing. There is no evidence on record to show that at the time of murder of deceased or even on the day of occurrence appellant was present in his house. There is no evidence on record that when appellant and deceased were last seen together. There is no circumstantial evidence of any type from which the appellant can be burdened with the charge of committing murder of his wife. In absence of any such evidence the appellant cannot be said to have the knowledge of murder of his wife only on the ground that he happens to be husband of the deceased and, therefore, the burden of proving that how his wife died will not be upon him. In absence of any evidence either direct or circumstantial we find that it is a case of no evidence at all against the appellant and, therefore, his conviction is not sustainable.
7. In the result, this appeal is allowed and the appellant is acquitted. The judgment and order of the Court below convicting and sentencing the appellant is hereby set aside. As he is in jail custody issue release order for his release from jail at once, if he is not required in any other case.