M.L. Visa, J.@mdashThis appeal is directed against the judgment and order dated 31st July, 1991 passed by the 1st Additional Sessions Judge, Darbhanga, in Sessions Trial No. 22 of 1985/42 of 1987 convicting and sentencing all the appellants to undergo R.I. for 7 years and pay fine of Rs. 5000/- and in default to undergo further R.I. for 6 months each u/s 201 IPC. Appellant Chandra Kant Jha has further been convicted and sentenced to undergo life imprisonment u/s 302 IPC. The case of the prosecution, in short, is that on 25.11.83 at about 10.15 A.M. informant Mohan Jha (P.W.13) got his fardbeyan (Ext. 5) recorded by A.S.I. of Police R.B. Singh (not examined) at Karjaniya Gachhi Village Korthu, P.S. Ghanshyampur, District Darbhanga stating therein that his sister Maharani Devi was married to appellant Chandra Kant Jha of his own village 15 years ago and she had one daughter aged about 5 years. Appellant Chandra Kant Jha worked in New Delhi and he used to reside with the deceased Maharani in New Delhi but six months prior he had come to his village and since then he was telling that his wife deceased Mahrani was ugly and quarrelsome and therefore he would marry another girl. The deceased Maharani used to tell about the ill-treatment to her by appellant and the threats of another marriage to informant, but the informant used to advise her to keep calm. In the evening of 24.11.83 the informant went to the house of appellant Chandra Kant Jha for demanding his bullocks and plough. The appellant Chandra Kant Jha asked the informant to come on the next day in the morning. At that time the informant found his sister deceased Mahrani quite well. On the next day in the morning i.e. on 25.11.83 at about 6 A.M. when the informant went to the house of appellant Chandra Kant Jha he did not find anyone at the ''darwaja'' of the house and there was complete silence there. The informant then entered the ''angan'' of the house and found that female members of the house were talking with each other in a very suspicious manner. He did not see his sister there. Nobody told him clearly about his sister which caused suspicion to him and he then entered the room of his sister where also he did not find her and then he came running to his house and told his cousin Rajendra Jha (PW 1), Ugeshwar Jha (PW 5), Arjun Jha (PW 6), Kashi Kant Jha, Mod Nath Jha, Narayan Jha (none of them examined) that appellant Chandra Kant Jha had killed his sister who was not in the house of appellant Chandra Kant Jha, other female members of the house of Chandra Kant Jha were talking with each other in a very suspicious manner and that Chandra Kant Jha was telling that after committing murder of deceased Maharani he would marry another girl. The informant thereafter along with the aforesaid witnesses started search for sister. Village Mukhiya Udit Narayan Thakur (PW 10), Sarpanch Chatur Narayan Jha (PW 4), Dafadar Sarva Narayan Jha (PW 9), Chaukidar Mahabir Yadav (PW 7) & Chaukidar Bishambhar Paswan (PW 8) also separately went out for search of the sister of informant. The informant and witnesses with him saw some smoke rising from a place and then they all ran towards that place and reached Karjaniya Gachhi and found that all the appellants and Rajeshwar Jha (who died during the pendency of the trial) were cremating the dead body of deceased Maharani Devi, sister of informant. They also found that a 5 litrs tin of kerosene oil, one basket, one spade etc. kept near the pyre. The appellants on seeing the informant and witnsses tried to run away but they all were caught by the informant and his companions. Rajeshwar Jha (since dead) who was also with the appellants managed to escape. The informant and his companions took out the dead body of Maharani Devi from the burning pyre and extinguished the fire. After sometime PWs. 4, 7, 8, 9 and 10 also reached there. The informant was going to report the matter to the police but in the meantime he met the ASI of Police R.B. Singh in the village and got his fardbeyan (Ext. 5) recorded. ASI R.B. Singh sent the Fardbeyan to police station for instituting a case and took up the investigation. He seized the partially burnt dead body of Maharani, 2 litres kerosene oil kept in a 5 Ltrs tin, one spade, one old gunny bag, one bed cover, portion of burnt sari and petticoat, one sikka, some jute string and one half burnt bamboo found near the pyre and in presence of witnesses prepared the seizure list (Ext. 2), prepared an inquest report (Ext. 6) and sent the dead body for post mortem examination and after completing investigation submitted chargesheet against the appellants and Rajeshwar Jha u/s 302/34 and 204 IPC. Cognizance of the case was taken and the case was committed to the court of Sessions where charges u/s 302/34 and 201 IPC were framed against the appellants and Rajeshwar Jha.
2. The case of appellants before the court below was total denial of occurrence and their false implication in this case on account of land dispute with the informant.
3. As stated above, co-accused Rajeshwar Jha died during the pendency of the trial. The court below after trial held all the appellants guilty u/s 201 IPC and it further held appellant Chandra Kant Jha guilty u/s 302 IPC and accordingly convicted and sentenced them as indicated above.
4. In order to prove its case the prosecution has examined 16 witnesses. PW 3 Narayan Jha, PW 5 Jugeshwar Jha, PW 6 Arjun Jha, PW 11 Makaru Yadav and PW 12 Mogal Mandal have been tendered. PW 15 Ram Padarath Choudhary and PW 16 Ganga Prasad Yadav are formal witnesses who have proved formal FIR (Ext. 4), Fardbeyan (Ext. 5) and inquest report (Ext. 6), PW 14 Akhilesh Kumar Verma is the doctor who held autopsy on the dead body of the deceased Maharani Devi. PW 13 Mohan Jha is the informant and brother of the deceased. PW 1 Rajendra Jha, PW 2 Ugeshwar Jha, PW 4 Chatur Narayan Jha, PW 7 Mahabir Yadav, PW 8 Bishambhar Paswan, PW 9 Sarb Narayan Jha and PW 10 Udit Narayan Thakur had reached the place known as Karjaniya Gachhi after hearing the information from the informant that the appellant Chandra Kant Jha had killed the deceased and saw all the appellants cremating the dead body of the deceased.
5. There is no eye-witness on the point of murder of the deceased and the case of the prosecution is based on circumstantial evidence. PW 14, in his evidence, has stated that on 26.11.86 at about 11.30 A.M. he conducted post mortem examination on the dead body of the deceased Maharani Devi and found that the body was charred blackened with loss of skin and no external injury could be identified and viscera was preserved and was forwarded for chemical examination and the opinion regarding cause of death was preserved pending the report of chemical analyst. Ext. 7 is the report of chemical analyst of viscera of the deceased which was examined by P.N. Pandey, Assistant Director, Forensic Science Laboratory and his report suggests that Aldrin which is a Chloroorganic pesticide and poisonous was detected in the viscera. From this report it appears that deceased Maharani Devi died of Aldrin. Now it has to be seen what evidence has been led by the prosecution against the appellants on the point of administering this poison to the deceased.
6. Informant (PW 13), in his evidence, has stated that deceased was his sister married to appellant Chandra Kant Jha and on a Thursday in the evening he had gone to the appellant Chandra Kant Jha for demanding plough and bullocks when Chandra Kant Jha told him to come on the next day in the morning and he on Friday in the morning before sun rise went to the house of appellant Chandra Kant Jha where he did not find anyone at the ''darwaja'' of the house and then he entered the ''angan'' of the house where he found the room of his sister closed and some female members of the house sitting at a place talking with each other in a very suspicious manner and when he inquired about his sister nobody told him anything. He getting some suspicion opened the door of the room of his sister but he did not find her there and he then came back to his ''tola'' where he told the witnesses about it and also told that since the appellant Chandra Kant Jha had come from Delhi he wanted to marry another girl after deserting his sister. Thereafter he and other witnesses started searching for his sister and when they went to Karjaniya Gachhi they found the appellants cremating the dead body of his sister who on seeing him tried to run away but were caught by the witnesses. He further stated that near the pyre where the dead body was kept no ''Chachari'' (a type of stretcher made of green bamboos constructed afresh after the death of a Hindu for carrying the dead body to burning ghat), new cloths, Kohia (earthen pitcher) etc. were found and on the contrary one basket, a 5 Ltr. tin containing half of Kerosene oil, Sutali, gunny bag, an old Sujani (a type of bed cover), pieces of dried bamboos and a spade were kept near the pyre and he further found that the ''Sari'' on the body of her sister was old one. He has also stated that police came there and recorded his fardbeyan. He has proved material exts. which were found and seized by the police at Karjaniya Gachhi. PW 1, PW 2, PW 4, PW 7, PW 8, PW 9 and PW 10 have stated that on a Friday in the morning the informant came to them and told them that appellant Chandra Kant Jha had killed his sister and thereafter they went to Karjaniya Gachhi where they found all the appellants cremating the dead body of the deceased Maharani Devi. They have further stated that near the pyre 5 Ltrs. tine containing some Kerosene oil, a basket, rope, spade, pieces of dried bamboos etc. were found. This is the only evidence which has come against the appellants in this case. The court below in its judgment has quoted the guidelines for deciding a case based on circumstantial evidence as well as the case of poisoning which is based on circumstantial evidence. It appears that the court was fully aware of settled law applicable in such type of cases. We find that the court below has given much importance to the manner in which dead body of the deceased was being cremated by the appellants. According to it, all the appellants were arrested in Karjaniya Gachhi where they were cremating the dead body of the deceased Maharani Devi and at that time there was no ''Chachari'' new doth which, according to the customs applicable to the caste to which the deceased belonged is used for wrapping the dead body and kerosene oil which is not used for burning dead body was found at that place. The court below failed to take note of the evidence of PW 8 and PW 9 who have deposed that poor persons use kerosene oil for burning the dead body and use of new cloths for wrapping the dead body depends on the financial capacity of a person. About the absence of ''Chachari'' it is true that PW 1, PW 2, PW 4 and PW 13 have stated that they did not find any ''Chachari'' at the place where the dead body was being cremated but then out of these witnesses PW 2, in his evidence, has admitted that he was not examined by the I.O. whereas attention of remaining witnesses has been drawn by the defence whether they had stated this fact in their earlier statements to which these witnesses have replied in affirmative but the prosecution has not examined the I.O. and for this reason the defence could not get any opportunity to bring on record the contradictions on this point in the evidence of these witnesses and in their earlier statements. So in this view of the matter the evidence of these witnesses that they did not find any ''Chachari'' at the place where the dead body of the deceased was being cremated becomes quite doubtful and it cannot be accepted. The court below taking note of absence of ''Chachari'' has come to a conclusion that this is a circumstance which shows that the accused persons had not carried the dead body of the deceased to burning ghat on a ''Chachari'' and they had taken the dead body in a concealed manner to burn the same stealthily and secretly. This inference drawn by the court below merely on the basis of absence of ''Chachari'' cannot be accepted, for the reasons stated above that the evidence of prosecution on the point of absence of ''Chachari'' is not convincing.
7. About the circumstances on the point of murder by administering the poison, as stated earlier, the court has taken note of the fact that following circumstances are required for deciding the conviction of an accused in a case of death by administration of poison which is based on circumstantial evidence :
(i) There is a clear motive for the accused to administer poison to the deceased;
(ii) that the deceased died of poison said to have been administered;
(iii) that the accused had poison in his possession, and
(iv) that he had an opportunity to administer the poison to the deceased.
These are the same guidelines which have been laid down in the case of
8. About the motive to administer poison to the deceased considering the evidence of the informant that since his return from Delhi where appellant Chandra Kant Jha used to work he was telling that he would desert the deceased as she was ugly and quarrelsome and he would marry another girl, the court below has opined that because appellant Chandra Kant Jha worked at Delhi for several years, therefore it was not unnatural for him to desire for a second wife, who may be young and beautiful and also willing to adjust herself to the life of Delhi so that he can lead glamorous life with her. It has further observed that the deceased used to tell the informant about the threats given by the appellants Chandra Kant Jha that he would marry another girl and informant conveyed this information to other witnesses who have also supported this fact. It is true that the informant in his fardbeyan has stated that his sister used to tell him that the appellant Chandra Kant Jha was giving her threats that he would marry another girl because she (sister of the informant) was ugly and quarrelsome but he has not stated this fact in his evidence. He has simply stated that about 14-15 years ago the appellant Chandra Kant Jha married his sister and relations between them were cordial but when appellant Chandra Kant Jha got a better employment, his behavior towards his sister changed and worsened. So far the question of evidence of other witnesses that the appellant Chandra Kant Jha wanted to marry another woman and was not having cordial relation with the deceased, they have admitted that this fact was told to them by the informant. We further find that PW 12 in his evidence has stated that relations between appellant Chandra Kant Jha and deceased were quite cordial and appellant Chandra Kant Jha never wanted to marry another girl. Besides this, it is the case of the prosecution that since six months prior to the occurrence the appellants Chandra Kant Jha was living in his village. So it is not certain whether at the time of occurrence the appellant Chandra Kant Jha was retaining his employment in Delhi. In view of these facts it is very difficult to accept that appellant Chandra Kant Jha wanted to marry another girl and for this purpose he wanted to eliminate his wife, the deceased and therefore he had a clear motive to administer poison to her. Even for the sake of argument it is assumed that appellant Chandra Kant Jha had a clear motive to administer poison to the deceased, the another circumstances that the appellant Chandra Kant Jha had poison in his possession is completely missing in this case. As stated earlier Ext. 7, the report of Forensic Science Laboratory on the examination of viscera of the deceased, shows that Aldrin, a poison, was detected in the viscera. There is absolutely no evidence on record to show that appellant Chandra Kant Jha was ever seen by anyone having Aldrin in his possession. In absence of missing of this important circumstance which is one of the four tests, as stated above, it can not be said that appellant Chandra Kant Jha administered Aldrin to the deceased. If the evidence led on behalf of the prosecution that appellant Chandra Kant Jha used to tell the deceased that she was ugly and quarrelsome and therefore he would marry another girl is accepted for proving that appellant Chandra Kant Jha had a clear motive to administer poison to the deceased, a possibility will arise that being depressed by the threats given to her by appellant Chandra Kant Jha the deceased might have committed suicide. The court below has eliminated this possibility on merely taking into consideration the examination of appellant Chandra Jha u/s 313 Cr. P.C. where he has stated that Aldrin was not kept in his house and also observing that female members of the community to which deceased belonged usually do not go for agricultural work and therefore they do not have any opportunity to come across the Aldrin which is generally used as pesticide and therefore, the deceased could not have procured aldrin for committing suicide. In my opinion, merely on the basis of statement of appellant Chandra Kant Jha that aldrin was not being kept in his house the possibility of procuring aldrin from any other source by the deceased cannot be ruled out. In a case based on circumstantial evidence if there are two possibilities out of which one goes in favour of prosecution and another in the favour of accused, the accused is definitely entitled to benefit of doubt. For the sake of argument if the possibility of committing suicide by deceased is kept aside, it is for the prosecution to bring on record the circumstances which taken together will form a complete chain and which will unerringly lead to only conclusion that it was the accused who had committed the offence. In the present case only on the basis of evidence that the appellants were seen cremating the dead body of the deceased, the court below after adding some more circumstance such as the dead body was taken to the place of cremation without informing the informant, it was being cremated without following the usual rituals, the appellants on seeing the informant tried to run away etc. has come to the conclusion that it was the appellant Chandra Kant Jha who had administered poison to the deceased. In our opinion, the facts that dead body was taken to the place of cremation without informing the informant and appellants tried to run away on seeing the informant and other witnesses is only a circumstances which can raise some doubt against the appellants but only on the basis of this doubt an inference that it was appellant Chandra Kant Jha who had administered poison to the deceased can not be drawn.
9. Learned counsel appearing on behalf of the State has drawn our attention towards statements of appellant Chandra Kant Jha in his examination u/s 313 Cr. P.C. where he has stated that on the night intervening between 24th and 25th November 1983 when the deceased died this appellant was sleeping in the ''dalan'' of his house whereas the deceased was sleeping in her room and he further stated that he had seen his wife quite well at about 8 P.M. on 24.11.83 and on 25.11.83 at 4 A.M. he found his wife dead. It has been argued by learned counsel for State it was for the appellant to explain how the deceased died and if he has not given any explanation to it, it will be a circumstance which will be an additional Sink in the circumstances which have surfaced against the appellant. He has relied upon a decision of the apex court in the case of
10. The facts of the present case are quite different than the facts of the case relied upon by the State Counsel. In that case, the accused had taken charge of his wife on the evening of 3rd September by taking her from quarters and leaving the place with her on a rickshaw, on the same day he was found travelling with his wife by a train proceeding to Gaya, he was seen at Chakand Railway station at about 11 or 11.30 P.M. a few hours prior to the time when his wife was murdered, a knife which looked like one the accused was known to be using and which was not of common pattern was found with blood stains by the side of the dead body of his wife and when the accused was arrested after 2 1/2 hours after murder he had injuries which according to the medical evidence were possible in an assault. Considering these circumstances it was held that the aforesaid circumstances point to the accused as probable assailant with reasonable definiteness and in proximity to the deceased as regards time and situation and because he failed to explain how after having taken charge of his wife on the evening of 3rd and after having traveled with her in a train in that very night he left his wife, where and how he parted company with her and what became of her, it will be an additional link which will be completing the chain. Here appellant Chandra Kant Jha has simply stated that on the night on one day he was sleeping in the ''dalan'' whereas his wife was sleeping in a room and in the morning he found his wife dead. Only this circumstance is not circumstance which points out that the appellant is assailant. In such situation, if the appellant offers no explanation about the cause of death of his wife it cannot be said only on this basis that he is the man who has committed murder of his wife. Here we may add that the doctor PW 14, in his evidence, has stated that the death may be due to food poisoning and taking of vegetables containing pesticide may cause the death. Learned counsel for the State submitted that this evidence of the doctor cannot be easily acceptable because had it been so that deceased died of taking vegetables containing pesticide in that case, other members of the family of the appellant must have been equally affected. We are not drawing any inference from this piece of evidence of the doctor but we find that notwithstanding this evidence, the prosecution has not been able to bring on record the circumstances which can lead to only one conclusion that it was the appellant Chandra Kant Jha who administered poison to the deceased. The evidence against remaining appellants who have been convicted u/s 201 IPC is simply that they were found present at the time when the dead body was being cremated. This evidence alone is not sufficient to hold them guilty u/s 201 IPC in absence of any proof that they were cremating the dead body in order to screen themselves or anybody else for punishment of any offence committed in respect of the death of the deceased. Once it is found that the prosecution has failed to prove that deceased was murdered, charge u/s 201 IPC automatically fails. In the result, this appeal is allowed. The judgment and order of the court below convicting and sentencing the appellants is hereby set aside. The appellants who are on bail are discharged from the liabilities of their bail bonds.
D.P.S. Choudhary, J.
I agree.
