Pawan Kumar Poddar vs State of Bihar and Others

M.L. Visa, J.—This application by Petitioner has been filed for cancellation of bail granted to opposite parties No. 2 and 3 by Chief Judicial Magistrate, Patna on 8.2.2002 in Kadamkuan Police Station Case No. 582 of 2001 under Sections 386, 504, 120B/34, Indian Penal Code (In short ''I.P.C.'').

The case of Petitioner, in short, is that he had instituted a case, numbered as Gandhi Maidan Police Station Case No. 301 of 2001, against opposite party No. 3, who is son of opposite party No. 2, under Sections 406 and 420, I.P.C. and Section 138, Negotiable Instruments Act for nonpayment of Rs. 73,36,473/-. In that case opposite party No. 3 was taken into judicial custody and he was remanded to jail and after his remand, Petitioner started receiving threats from opposite parties 2 and 3 for withdrawal of the case and he was also threatened with abduction of his son and also received threat to his life and, therefore, he instituted another case in which also the cancellation of bail of opposite parties No. 2 and 3 is under consideration. The further case of Petitioner is that after institution of case under consideration, a compromise agreement was reached between Petitioner and opposite parties No. 2 and 3 and a compromise petition was filed and on the basis of that compromise, opposite parties No. 2 and 3 were granted bail by Chief Judicial Magistrate, Patna on 7.11.2001. The Petitioner has further stated that subsequently a supplementary compromise was reached by which opposite parties No. 2 and 3 sought some amendments in Clause (g) of the earlier compromise agreement dated 7.11.2001 (Annexure-3) and after grant of bail, opposite parties No. 2 and 3 failed to honour the compromise agreement by which they were supposed to return the amount taken from the Petitioner by way of transferring some immovable property and also by payment in cash as per the terms of compromise, The Petitioner has further alleged that, instead of honoring the compromise agreement, opposite parties No. 2 and 3 sent a legal notice to Petitioner alleging therein that Petitioner was handed over certain cheques but on 25.6.2002, he was paid the amount of those cheques in cash and pay order but even after that, he presented the cheques for encashment before bank which is a fraudulent act on the part of the Petitioner (Annexure-4). According to Petitioner, has sent reply to that legal notice stating therein that payment made to him on 25.6.2002 in cash and pay order was in (sic)u of Ravi Enterprises and not for cheques which were given to him as per supplementary compromise agreement dated (sic)2.2002 (Annexure-5). Opposite parties No. 2 and 3 again sent a legal notice to Petitioner stating the same thing (Anenxure-6). according to Petitioner till the date of filing the application under consideration, opposite parties No. 2 and 3 have not transferred any immovable property in the name of Petitioner as per clause-(g) of compromise agreement dated 7.11.2001 and Petitioner has been paid only a paltry sum amounting to Rs. 5,50,000/- against his given amount of Rs. 73,36,473/-. On these (sic)unds, the Petitioner has prayed for cancellation of bail granted to opposite parties No. 2 and 3.

Opposite parties No. 2 and 3 have appeared by filing vakalatnama and opposite party No. 2 has filed counter affidavit. The case of opposite party No. 2 is that Petitioner is distantly related to him and he developed intimacy with opposite party No. 3 and slowly he gained his confidence and by filling of some blank cheques which were signed by opposite party No. 3 earlier and were handed over to Petitioner for smooth running of the business presented those cheques before the bank and got the same dishonoured and, thereafter, he filed a false case and with the connivance of police got opposite party No. 3 arrested and in this way compelled opposite parties No. 2 and 3 to enter into an agreement under pressure but inspite of this fraudulent and cunning act of Petitioner, opposite parties No. 2 and 3 have fulfilled all the conditions mentioned in the compromise dated 7.11.2001. Their further case is that in this case, all the sections, except Section 386, I.P.C., are bailable and no case u/s 386, I.P.C. is made out against them. The further case of opposite parties No. 2 and 3 is that on their part, they have fulfilled all the promises made in the compromise agreement dated 7.11.2002 and on the contrary, the promise made by Petitioner in para-(g)(viii) has not been fulfilled by the Petitioner and, in fact, he has cheated opposite parties No. 2 and 3 by making false promise. Opposite parties No. 2 and 3 have prayed for rejecting the prayer of Petitioner for cancelling their bail.

From the impugned order, it appears that although the Court below while granting bait to opposite parties No. 2 and 3 has taken into consideration the fact that matter between the parties had been compromised and a compromise petition had already been filed but at the same time, it running away. On reaching the house, he found his sister lying on the ground in burnt condition. His mother hired a tempo and both of them took the victim of Sadar hospital for treatment. P.W. 5, the informant, reiterated her fardbeyan version. She stated that 3 to 4 persons had come to her house and informed her that her daughter had been burnt by her son-in-law by pouring kerosene oil. When she reached the deceased house, she saw the appellant running away from there. She tried to enquire from him about the incident but he fled away towards station. On inquiry, the deceased told her that her husband had taken Rs. 10,000/- in the past and had made further demand of Rs. 5,000/- which she did not give and, therefore, he set her on fire. She (P.W. 3) thereafter arranged a tempo and took the victim to Sadar hospital where she died after two days.

P.W. 1 Ram Babu Chaudhary, though declared hostile, in his evidence stated that he heard noise and saw flames coming from the house of the deceased. When he went to the house, he found the deceased burnt in the angan. Thereafter, the victim''s mother took her to the hospital for treatment on a tempo. He thus more or less supported the prosecution case, as indicated above. He was declared hostile because in his evidence he stated that he did not see who had burnt the deceased.

Shri N.K. Agrawal, learned counsel for the appellant, submitted that having regard to the extent of burn injuries it was not possible for the deceased to make any statement and, therefore, the evidence of the witnesses that deceased had stated to them that she had been burnt by her husband should not be accepted. There was no smell of kerosene oil at the place of occurrence, or on the body of the deceased, as stated by the doctor and, therefore, prosecution case regarding deceased being burnt by pouring kerosene oil should also not be accepted. The prosecution case is based on the so called dying declaration of the deceased made to the witnesses but the informant did not make any reference either to such dying declaration or about the appellant fleeing away from the place of occurrence after seeing the informant or about any demand for money by the appellant. These, according to the learned COUNsel, are material improvements in the case at the stage of trial and, therefore, prosecution are founded on these allegations should be rejected. In any view, it was submitted prosecution case is based on circumstantial evidence and circumstances in the instant case are not enough to hold the appellant guilty.

It is true that there is no direct evidence of any eye witness on the point of occurrence but where a helpless woman is burnt by her husband or the in-laws, in the sasural, it is futile to expect direct evidence about the occurrence. The court, therefore has to reach the conclusion on the basis of attending facts and circumstances. The circumstances which appear to tie proved in the instant case are as follows. The first circumstance which comes to our mind is the conduct of the appellant. As soon as P.Ws. 4 and 5 reached his house, he ran away from there. Besides reflecting the state of a guilty mind, it also reflects upon on his conduct as husband. It also proves his presence at the place of occurrence The fact that the deceased was burnt is not open to dispute, and if that is so, as husband his natural conduct would have been to take her to the hospital for treatment rather leave the deceased to fend for her self. If P.Ws. 4 and 5 had not reached the place, we wonder how she would have taken to the hospital and when. It may be recalled that though P.W. 1 was declared hostile, he too stated about the victim being taken to the hospital by her mother and brother and not the husband.

The next circumstance which stands proved is the dying declaration. No doubt, there is no written record of the dying declaration by the deceased but there is evidence of not only victim''s mother but also independent witness like P.W. 2 Kaushalya Devi on this point. In view of the consistent evidence of P.Ws. 2, 4 and 5 there does not appear to be any doubt that the deceased had told the informant and others after they reached her house that she had been burnt by the appellant. The submission of the counsel that the de-ceased having suffered 95% burns, it was not possible for her make any such statement, for, she must have in state of great pain, is difficult to accept. The occurrence took place in the night of 14/15th June, 1996. On 15th June, 1996, the deceased was taken to hospital and two days thereafter she breathed her last. In the circumstances though the deceased had suffered 95% burn, it cannot be said that she could not be in a state of mind to make statement. As pointed out by the State counsel, in the case of Mesu Dhondiba Vidhate v. State of Maharashtra 2002 (2) SCC (Cri). 1117, the Apex Court accepted the dying declaration of the victim (made in the presence of an Executive Magistrate) with 100% burns.

A suggestion was made on behalf of the appellant that the deceased might have committed suicide. The extent of the burns and absence of any article such as container or match box at the place of occurrence dispel such suggestion; The doctor in course of post mortem found a foetus of 4-5 months. If the deceased was carrying pregnancy of 4-5 months, it is unlikely that she would commit suicide. It is relevant to mention that from her first marriage, the deceased had two children, living with her mother i.e. the informant. Committing suicide leaving two children to fend for themselves does not appear to be probable. No attending circumstances was pointed out which could prompt the deceased to take such a step to end her life. On the other hand, there was reason for the appellant to kill the deceased. In her dying declaration, the deceased stated that she was set on fire as she refused to pay him the amount of Rs. 5,000/-, In the past she had paid Rs. 10,000/-. Refusal by the deceased to make further payment might have driven the appellant to commit the act. This is another circumstance which stands proved.

It is true that in his evidence the doctor stated that no smell of kerosene was found by him on the body of the deceased. We, however, wonder how could he say so when the post mortem report did not mention this fact. In any view, the submission in this regard would appear to be totally misconceived in the volume of evidence regarding the burn injuries on the deceased, also the inquest report.

The fact that the deceased was found burnt in the appellant''s house, in fact, has not been challenged. It is relevant to mention that all the relevant circumstances were put to the appellant in course of his examination u/s 313 of the Code of Criminal Procedure but he failed to explain any of them. As noticed above, when the witnesses reached the place of occurrence, seeing them, the appellant tried to run away. He was thus very much present in the house i.e. the place of occurrence. The appellant was, therefore, obliged to explain how the deceased, his own wife, sustained the burn injuries. Though the prosecution is required to prove its case but in a given case failure of the accused to explain a fact or circumstance may itself become a relevant circumstance against him. This is another circumstance which stands proved against the appellant.

As indicated above, the deceased died an unnatural death in her sasural, and it would be far fetched to expect direct evidence on the point, and, therefore, the Court has to draw inference on the basis of attending facts and circumstances of the case. It is true that in a case based on circumstantial evidence, the circumstances should be such as to complete the chain and lead to only one conclusion i.e. the guilt of the deceased, inconsistent with his plea of innocence, but how long would be the chain, would depend on the facts of the case. In a particular case, a few circumstances may complete the chain while in another case, absence of a particular circumstance may break the chain entitling the accused to benefit of doubt.

In the facts and circumstances of the case, we are satisfied, having regard to the facts and circumstances of the case, that the appellant died an unnatural death from 95% burn injuries sustained by her in her sasural at a time when her husband was present. We are also satisfied, as we have no reason to disbelieve the dying declaration of the deceased, that it was the husband who had set her on fire by pouring kerosene oil on her. Conduct of the appellant soon after the occurrence only lends corroboration to the dying declaration. We are accordingly satisfied that the prosecution has proved the case beyond all reasonable doubts that the appellant committed murder of his wife and, therefore, the impugned conviction and sentence does not warrant any interference by this Court.

In the result, the appeal is dismissed. The appellant, who is in jail, will serve the remainder of sentence awarded to him.