D.N. Prasad, J.
1. This criminal appeal arises out of the order of judgment and conviction passed by the then 2nd Additional Sessions Judge, Giridih in S.T. No, 146/84 by which the learned Judge convicted the appellant under Section 302, I.P.C. for the death of Manju Devi by administering poison and sentenced him to undergo R.I. for life. No separate conviction under Section 328, I.P.C. was passed.
2. The short facts giving rise to the prosecution case as alleged that on 31 -8-1982 a fardbeyan of Bisheswar Ram Gupta was recorded alleging therein that on the same day at about 11 a.m. one boy from village Malho came to him and informed that something happened to his daughter Manju Devi and asked him to reach to village Malho. On this information, the informant reached to village Malhi on his own truck and he reached to the house of accused Darogi Ram father-in-law of Manju Devi at village Malhi and found a crowd being assembled there. The Information entered into the house and found his daughter lying there and by gesture he came to know that she had been administered poison as she was unable to speak at the relevant time. It was further alleged that Manju Devi disclosed by gesture that she would not survive. Thereafter the Informant with the help of other persons put Manju Devi on a cot and brought her by his own truck to Giridih Sadar Hospital. It is further alleged that the Informant came to know that the members of Sasural of Manju Devi had administered poison to Manju Devi in order to kill her. The main reason for administering poison to Manju Devi that the accused-persons including the appellant used to demand dowry from the Informant and his daughter. The police recorded the fardbeyan of the Informant and the case was registered under Sections 307/328, I.P.C., but in the meantime Manju Devi died and as such it was converted under Section 302, I.P.C. vide order dated 5-9-1982 passed by learned trial Court.
3. After investigation the police submitted charge-sheet against all the accused-persons including the appellant. It further appears that the case was committed to the Court of Session as per order dated 27-7-1984 and learned Sessions Judge in seisin of the case framed charges under Sections 302/34, 328/34 and 120B, I.P.C. and Section 4 of the Dowry Prohibition Act read with Section 334, I.P.C. against all the accused-persons including the appellant.
4. It may be noted here that the proceedings against accused Satya Bhama Devi was dropped in course of trial as she died on 21-12-1985.
5. The defence case, as alleged, that the accused-persons have been falsely implicated in this case and actually Manju Devi died natural death by disease of Epilepsy. It is also claimed that the appellant Sheo Kumar Gupta, the husband of the deceased was not present at the time of occurrence at his house, rather he was on duty in the office of Food Corporation of India, Exhibition Road, Patna, as well as accused-persons have been falsely implicated in this case at the instance of one Sudhir Kumar Gupta due to enmity.
6. The learned trial Court after considering the evidence on record and having heard both the parties on the point, acquitted all the accused-persons under Section 4 of the Dowry Prohibition Act and under Section 120B, I.P.C. as he found that the prosecution has failed to establish charges against all the accused-persons for the said offences. It further appears that he also did not find the prosecution case being established against accused-persons, namely, Darogi Ram, Sahodari Devi, Suresh Ram, Saroj Kumar and Pramod Kumar and they were also acquitted for the offences under Sections 302/34 and 328/34, I.P.C. However, the learned trial Court convicted the sole appellant, Sheo Kumar Gupta under the offence under Section 302, I.P.C.
After being dissatisfied with the impugned judgment, the appellant preferred this appeal on the ground that the learned trial Court has committed error in convicting the appellant, when there is no legal and proper evidence against the appellant. It is also claimed that this appellant was not present at the time occurrence as he was on duty at the office of Food Corporation of India at Patna as well as there is no eye-witness of the occurrence and the charge framed under Section 302/34, I.P.C., whereas other accused-persons were acquitted on the ground that prosecution has failed to establish the charge under Section 34, I.P.C. as well as such the sole appellant cannot be held to be guilty for the said offence and as such the impugned judgment of conviction and sentence is fit to be set aside.
7. Altogether 18 witnesses have been examined on behalf of the prosecution to prove its case.
P.W. 1, Bhagwan Das deposed that while he was talking with Rameshwar Prasad Verma, the younger son of Darogi Ram, the father-in-law of the deceased namely Pradeep Kumar came to him and informed that his Bhabhi (Manju Devi) became unconscious and is also unable to talk and thereafter they went to the house. It is also stated that on being asked about whereabouts of the husband of the deceased, her mother-in-law told that he was in the town but had left little ago. He further stated that when the Informant came he took Manju Devi on his truck. He also deposed that the wife of Darogi Ram disclosed that deceased took tea with bread before being unconscious. He also deposed that Rameshwar Prasad Verma, told that her condition is precarious and as such she should be taken to the hospital at once then the mother-in-law of deceased told him that there is no male member in the house, but, in the meantime the informant came with truck and she was taken to the hospital on the said truck. P.W.1 clearly deposed in para-7 that he had never seen any incident of ill-treatment by the appellant to the deceased. He also deposed that no any demand was made at any point of time from Bisheswar Ram Gupta, the Informant.
8. P.W. 2, Sudhir Kumar Gupta has not supported the prosecution case in any manner and as such he has been declared hostile by the prosecution. He clearly deposed that, none of the in-laws members put any torture to the deceased at any point of time.
9. P.W. 3, Rameshwar Rani has also been declared hostile by the prosecution. P.W. 4, Prayag Ram stated that he came to the Giridih Hospital when he was informed about the death of Manju Devi. According to him, the accused-persons used to demand the dowry and Manju Devi was subjected to torture due to non-fulfilment of the demand, but he admitted in his cross-examination in para-5 that such demand was never made in his presence. He also deposed that he does not remember the name of the person who gave the information about his niece being unconscious.
10. P.W. 5, Anil Kumar Gupta, who is the brother of the deceased stated that when he reached the Jagannathdih stand, one boy came and informed him that the condition of his sister was precarious. On this information, he along with his father went to village Malho where they saw Manju Devi lying on abed. He also stated that the accused-persons were demanding dowry and due to non-fulfilment of the dowry demand, his sister was subjected to torture. He also deposed that all the accused-persons including the appellant used to threaten to do away the life of deceased if the demand is not fulfilled. He further deposed in his cross-examination that when they reached the village Malhi, Manju Devi was found to be in conscious but she could not speak, but he admitted in his cross-examination that Manju Devi was never assaulted by the accused-persons in his presence vide para-9 as well as the demand of dowry was never made from him. But, he alleged that the appellant Sheo Kr. Gupta once demanded dowry from his father in his presence and this demand was made just after one year of the marriage, but he does not disclose specifically as to what was the demand.
11. P.W. 6, Deo Mandan Prasad has been tendered by the prosecution, P.W.-7 Arjun Prasad is quite silent about the occurrence, rather he claimed to have gone to the house of deceased once to make the appellant Sheo Kumar Gupta understood as there was allegation of demand of dowry. P.W. 8, Chhedi Lahiri claimed to have met the appellant Sheo Kumar Gupta at Dhanwal Bus Stand, who had boarded Mehta bus for his village Malho and according to him, he had met the appellant Sheo Kumar Gupta at the said bus stand about three years ago, but he does not disclose the specific date or year of the said meeting. P.W. 9, Rameshwar Prasad Verma stated that he had gone to Patna in June 1982 with Arjun Prasad Darad, P.W. 7, He further stated that he along with the Headmaster and Bisheshwar Ram went to the house of the appellant and they tried to pacify him but the appellant abused him. He could not say as to in which Mohallah, the appellant Sheo Kumar Gupta was residing at Patna at the relevant time.
12. P.W. 10, Bisheshwar Ram, the Informant stated that his daughter was residing at her Sasural after marriage and there was a demand of Scooter from the side of the accused-persons and the same demand could not be fulfilled and due to which his daughter was subjected to torture. It is also stated that Manju Devi used to send letters narrating the incident about torture. He further stated that the appellant Sheo Kumar Gupta was also persuaded and he was made understood. He further deposed in para-5 that Manju Devi was once subjected to torture by burn injury by pouring hot water on her body.
It may be noted here that no such incident was reported to either police officials at any point of time and there is no document corning forward from the side of the prosecution to establish this fact that actually she had sustained any burnt injury earlier to the occurrence. He claimed in para-10 that Manju Devi was administered poison by all the accused-persons, as a result of which she died. He also claimed that he found forth coming out from the mouth and nostril of the deceased at the relevant time and by gesture she claimed that all the accused-persons including the appellant administered poison. Some letters alleged to be written by the deceased have been Exhibited being Ext. 2 series. He stated in para-28 that he came to know in the village of the deceased that all the accused-persons administered poison. He also deposed that Sahodari Devi, mother-in-law was present near Manju Devi when the informant reached her house. He also deposed in para-30 that he did not say before the police that accused-persons were demanding Scooter as dowry.
13. P.W. 11, Dr. Anil Kishore Choudhary held post-mortem on. the dead body of Manju Devi and he clearly stated that he had not found any external injury on the dead body and the viscera was sent for chemical examination. He also deposed that he had received the chemical examination report, which does not find place on the record and he did not find the sign of poison in the report.
14. P.W. 12, Kameshwar Prasad Verma stated that while he was going to Jarnua from Dhanbad on motor-cycle he met Bhagwan Das and they were talking with a boy named Pradeep Kumar came there who told that his Bhabhi became unconscious. On this, he went to Pradeep Kumar's house and saw a lady lying on the bed in unconscious state. According to him, she was not able to talk at the relevant time.
15. P.W. 13, Rambalak Singh, the Investigating Officer stated to have examined the witnesses and also visited the place of occurrence. He claimed to have arrested Sahodari Devi on that very date. He also claimed to have searched the house of the accused-persons but he did not find anything otherwise in connection with the occurrence. He also admitted in para-18 that he had received the supervision note of Dy. S.P. in which there was direction to inquire into the matter in respect of alibi taken by the appellant Sheo Kumar Gupta, But, he had not certified the said alibi nor he visited Patna for the same. He also deposed in para 23 of his cross-examination that the deceased Manju Devi did not indicate by gesture in respect of Sheo Kamar Gupta, appellant to administer poison by putting her hand on the vermillion. He also deposited in para 23 that Bisheshwar Ram Gupta, the Informant never stated before him that he was told by Manju Devi (deceased) about appellant's pouring hot water on her body as well as Bisheshwar Ram Gupta had not stated about Manju Devi showing sign indicating her husband's involvement in the crime.
16. P.W. 14, Basudeo Mistry stated that Raj Kumar Gupta, the brother of the appellant was the tenant in his house. He has not stated anything about the occurrence. P.W. 15, Nathuni Pathak, claimed to be Sub-Inspector of Police, Women Crime Cell and he had also investigated into the case. According to him, he had received photostat copy of some letters for chemical examination and it was sent, through his letter No. 89 dated 11-2-1985 (Ext. 8). He also proved the sanction order (Ext. 9). He also deposed in his cross-examination in para-10 that the witness Cheddi Lahiri did not state before him that he had ever gone to Dhanwar for purchasing bangle.
17. P.W. 16, Basudeo Ram is the formal witness and he proved the FIR (Ext. 10). P.W. 17, S. Gupta is also a formal witness. P.W. 18, Hari Narayan is the handwriting expert and he stated that he along with Kameshwar Prasad had verified the specimen of the handwriting but he admitted that in absence of sufficient and suitable specimen they could not reach at the result and no decision could be ascertained and the proved his report, Ext. 13.
18. All the accused-persons were examined under Section 313, Cr. P.C. and they have denied the allegations. One witness was also examined on behalf of defence. D.W. 1 Dilip Kumar Sharma is the formal witness who proved the attendance of the appellant dated 30-8-1982 and 31-8-1982 on the Attendance Register being Ext. C. He claimed to be the employee of Food Corporation of India, where the appellant is also working.
19. It may be noted here that all the accused-persons including the appellant were charged for the offence under Sections 302/34 and 328/34, I.P.C. They were further charged for the offence under Section 4 of the Dowry Prohibition Act but all the accused-persons have not been found to be guilty for the offence under Section 4 of the Dowry Prohibition Act and they were acquitted accordingly. It may further be noted here that other accused-persons namely Sahodari Devi, mother-in-law, Darogi Ram, father-in-law, Suresh Ram, Saroj Kumar and Pramod Kumar have already been acquitted for the offences under Sections 328/34 and Section 302/34, I.P.C.
There is a specific allegation in the fardbeyan that deceased indicated by gesture against all the accused-persons for administering position (Ext. 4). There is nothing specie in the fardbeyan against the appellant for overt act attributed to P.W. 10, the informant also deposed in para-10 that the deceased indicated by gesture that all the accused-persons, mother-in-law, father-in-law, husband and Dewar administered poison, but admittedly there is no eye-witness of the occurrence and none of the witnesses supported the prosecution case about torture to the deceased at any point of time.
20. I have already discussed above that the prosecution has already failed to bring home the charge against the accused-persons for the offence under Section 4 of the Dowry Prohibition Act in connection with the demand of dowry. Some of the letters have been brought on record by the prosecution being Ext. 2 series, but it is an admitted position that the handwriting expert could not reach at the result and no decision could be ascertained and as such the said letters cannot throw any definite conclusion as well as the said letters did not disclose any demand of Scooter by the appellant as claimed by P.W. 10 in his evidence.
21. The doctor, P.W. 11, who held post-mortem on the dead-body of Manju Devi was also not of the definite opinion about the cause of death and as such the viscera was preserved and the same was sent for chemical examination. The doctor, P.W. 11 opined that the cause of death was due to suspect poison, but the case of suspected poison cannot take the place of definite and certain case of poison.
22. At this stage, f may mention here that the viscera was examined by the Chemical examination and there was no poison detected by the Chemical expert and there is a mention about the result of examination ''No metallic Alkaloidal Glycosidal Pesticidal or Volatile Poison could be detected in the contents of the glass jar and glass bottle described above'.
In this way, it is clear that no poison was detected by the Chemical Examination. It is also claimed by the defence that the appellant was not present at the time of occurrence as he was present at Patna where he was working in the Food Corporation of India and the I.O. himself admitted in his evidence that he did not verify the alibi as claimed by the appellant during investigation, though there was a direction by the Supervising authority to verify the same. There appears no specific, allegation of overt act attributed to the appellant and the allegation being similar against all the other accused-persons, have already been acquitted by the learned trial Court.
23. The learned Counsel appearing for the appellant, submitted that there is no eye-witness of the occurrence and there is nothing specific against the appellant to connect him for the alleged offence. It is also submitted that the appellant had been at Patna at the relevant time as he was working there and despite a clear direction by the Supervising authority, the Dy. S.P. to verify the alibi of the appellant, the Investigating Officer has not. verified the same as he admitted in Para-18 of his evidence.
24. It is further argued that the charge under Sections 302/34, I.P.C. was framed against all the accused-persons including the appellant and admittedly all other accused-persons were not. found guilty and they were acquitted as well as there is nothing specific, against the appellant for committing overt act and as such the appellant is also entitled to be acquitted for the said offence. It is further argued that the viscera was examined by the chemical examiner and no poison could be detected and so the story or allegation for administering poison also becomes falsified. It is also submitted that the Investigating Officer had visited the house of the appellant at the time of investigation but did not find any sign or material in regard to the alleged administering of poison. It is further argued that there is no mention in the fardbeyan about showing of gesture by the deceased of putting Sindoor on her head for indicating the appellant, rather this fact has been stated for the first time in the evidence by P.W. 10, which is absolutely a concoction and the whole prosecution case becomes doubtful and falsified in view of the report of Chemical examiner, which showed negative finding of the poison.
25. The learned Counsel appearing for the defence also relied upon the case : 1984CriLJ1738 Sharad Birdhichand Sarda v. State of Maharashtra and : 1995CriLJ4171 Gurdiol Singh v. State of Punjab, in support of his submissions.
26. I have already discussed above that there is no eye-witness of the occurrence as well as there was general allegation in the fardbeyan, Ext. 4 about indication by the deceased with gesture that accused-persons administered poison. Other accused-persons, who were already charged under Sections 302/34, I.P.C. and 328/34, I.P.C. have been acquitted by the trial Court itself a3 well as there is nothing specific overt act attributed to the appellant as well as the poison could not be detected by the Chemical Examiner. The words 'in furtherance of the common intention of all' being introduced as an essential part of the Section, the element of common intention prescribing the condition under which each might be criminally liable when there are several actors.
27. In the instant case, there is nothing specific against the appellant that he alone had ever administered poison. I have already discussed above that there is no eye-witness of the occurrence. Moreover, the poison has also not been detected during chemical examination of the viscera. It further appears that there is definite defence of alibi of the appellant that he had been to Patna at the relevant time and the I.O. did not verify about alibi as admitted by him in para-18 of the evidence, though, there was a clear direction of the Supervising Authority for the verification. Other accused-persons having similar allegations have already been acquitted and it was held that the prosecution failed to establish the charges against them and so whole prosecution case as against the appellant also becomes suspicious and doubtful. It is settled that 'murder with common intention and if there is acquittal of one of the accused. Common intention being core of charges and no independent charge framed under Section 302, I.P.C. against another accused. No evidence showing that he independently committed the murder. Another accused cannot be convicted for the offence.' In the instant case also, there is no independent charge framed under Sections 302, I.P.C. against the appellant and undisputedly other accused have already been acquitted in this case when the charges were framed under Sections 302/34 and 328/34, I.P.C. against all the accused-persons including the appellant. Vide 1994 Cr. L.J. (S.C.) page-919. Thus, in my view, the appellant is also entitled to face the same the same consequences and he is entitled to be acquitted.
28. In the above facts and circumstances, I find that the prosecution has totally failed to establish the charge against the appellant beyond all reasonable doubt.
29. In the result, this appeal is allowed. The judgment of conviction and order of sentence passed by the trial Court are, thereby, set aside and accordingly, he is acquitted. He is also discharged from the liability of bail-bonds.