Rabbi Rajak and Others vs The State of Bihar

Aftab Alam, J.—All the five appellants belong to the same family. Appellant No. 5 is the wife of appellant No. 1 and appellants 2 to 4 are their sons. Alt of them stand convicted u/s 302/34 of the Penal Code and sentenced by the Trial Court "to undergo imprisonment for life". They are alleged to have caused the death of Tila Devi by hanging her by the neck from a bamboo post in her house by means of a piece of rope. A highly unusual feature of the case is that it is based on a complaint petition filed by the mother of the deceased 19-days after the occurrence. The Chief Judicial Magistrate before whom the complaint was filed seems to have acted in a very rash and cavalier manner and proceeded to deal with it on the basis of an enquiry u/s 202 of the Cr. P.C. instead of referring the complaint u/s 156(3) of the Code of Criminal Procedure and to have the benefit of the larger police investigation into the matter. The result is that in the end all that the Court had before it was the testimonies of some oral witnesses that could not even be tested with reference to their earlier statements made before the police. The Court also did not have any medical evidence or the results of police investigation, particularly the objective findings at the place of occurrence. Consequently, the impugned judgment is based entirely on the oral evidences.

On 14.6.1999, a complaint petition was filed on behalf of Jiraman Devi (PW 7) before the Chief Judicial Magistrate, Kishanganj. It was stated in the complaint that a piece of land bearing plot No. 313 under khata No. 50 thana No. 119 with an area of 3 decimals, situate at mouza Pauwakhali was earlier settled in favour of the complainant. A thatched house was constructed in a corner of the plot and she lived there with her husband and her daughter, Tila Devi. The husband of Tila Devi worked at the Raj Bhawan, Patna and since there was no facility for keeping the family, he had left his wife with her parents and used to send her monthly expenses. It was alleged by the complainant that the appellants had an eye over the piece of land settled in her favour and constantly endeavoured to grab it. There were a number of cases pending in the Court resulting from their attempts to grab the land. It was further stated that the thatched hut of the complainant had got bent-down in a storm and in the afternoon of 26.5.1999 (the date of occurrence) she alongwith her daughter was trying to mend it. At that time, the accused came over the land and started cutting the earth. On being objected to by the complainant and her daughter, a quarrel ensued and they started hitting the complainant and her daughter Tila Devi. The complainant somehow managed to free herself and she went to the Mill (Flour Mill) where her husband used to work to call him. While leaving the spot, she saw the accused-appellants dragging her daughter inside her house. On coming back with her husband, she saw that a large number of people were assembled in her Angan and the appellants were fleeing away from there, carrying their baskets, kudals etc. On going inside the house, she found Tila Devi hanging from a bamboo post by means of a piece of rope. She was struggling to save her life. It is further stated that the rope by means of which she was hanging was cut and she was taken down and was carried to Pothia hospital. There, the doctor(s) refused to treat her and advised to take her to Islampur hospital. Then, the complainant and her helpers carried her to Islampur hospital and admitted her in the hospital there (Islampur falls in the State of West Bengal). But in course of treatment there, she died at 9.30 PM. Her post-mortem was held on the following day after which the body was returned to them and they buried it. In the concluding paragraph of the complaint, it was stated that the complainant gave information about the occurrence at the Police Station and also to the Superintendent of Police, but till the date of filing the complaint, no action was taken on it.

The Chief Judicial Magistrate, Kishanganj examined the complainant on solemn affirmation on 15.6.1999 and proceeded to hold an enquiry u/s 202 of the Code of Criminal Procedure. In course of the enquiry, Madhu Kumar Rai, Akali Devi and Tikeshwar Singh (who were later examined before the trial Court as prosecution witnesses 3, 1 and 2 respectively) were examined as witnesses on behalf of the complainant. On the basis of the enquiry, the Chief Judicial Magistrate, Kishanganj passed the order taking cognizance of offences under Sections 323, 302 and 120B of the Penal Code on 17.9.1999 and summoned the five accused for facing their trial. The case was finally committed to the Court of Sessions on 24.5.2000 and the accused-appellants were put on trial for committing the murder of Tila Devi in furtherance of their common intention; all of them were charged u/s 302/34 of the Penal Code.

In course of trial, the prosecution, in support of its case, examined eight witnesses of which three (i.e. PWs. 3, 2 and 1) were also examined before the Magistrate during the enquiry. Among the eight prosecution witnesses, PWs. 1, 5 and 6 are the eye-witnesses who claimed to have seen the actual act of hanging Tila Devi by the appellants. Complainant herself was examined as PW 7. She deposed about the initial quarrel after which she went away to call her husband and on coming back, she found the appellants fleeing away from her house and her daughter Tila Devi hanging from a bamboo post by means of a piece of rope. PW 8 is the husband of the complainant. He stated that his wife came to inform his about the appellants assaulting her and her daughter and when he alongwith his wife went to their house, he saw the appellants fleeing away and on going inside the house, he found that his daughter Tila Devi was hanging there from a bamboo post. PWs. 2 and 4 similarly saw the appellants fleeing away from the place of occurrence and on coming to the house of the complainant they saw that Tila Devi was lying in the Aangan. She was alive but unconscious and was bleeding from her nose and mouth. PW 3 is the son of PW 1. He is a cycle-cart puller who saw the accused fleeing away from the place of occurrence and who later carried Tila Devi on his THELA first to Pothia hospital and then to Islampur hospital.

From the foregoing, it would be apparent that apart from PWs. 1, 2, 3 and the complainant (PW 7), the remaining four witnesses, that is to say, PWs. 4, 5, 6 and 8 were examined before the Trial Court for the first time. It means that the two of the three eye-witnesses (PWs. 5 and 6) were also among those who came to depose before the Trial Court for the first time after about 15 months of the occurrence and there was no means to test their statements before the Court with reference to any earlier statements made by them either before the police or before the Magistrate.

PW 1 Akali Devi is the adjacent neighbour of the complainant. In the cross-examination, she described herself as the cousin mother-in-law (Mauseri Saas) of Jiraman. She stated before the Trial Court that 16-months ago, on the date of occurrence at about 5 PM, she was sitting in her ANGAN weaving a basket. There was only a TATTI (about a man''s height) separating the two houses. There was no one in the house of Jiraman excepting her daughter Tila Devi. She further stated that Lalo Devi, Rampravesh, Rabi, Binda and Vidyan- and entered into the house of Jiraman. They were carrying HASUA, stick and KUDAL They entered into the house because they had a land dispute with Tila Devi. All the accused tied Tila Devi''s neck with a piece of rope and hanged her from a bamboo post. On seeing the accused thus hanging Tila Devi, she (the witness) ran to call her mother. When the mother and father of Tila came, they cut the rope and took her down. She was unconscious and was bleeding from her nose and mouth. She was taken to hospital where she died. It is to be noted here that the statement of PW 1 is not quite the same as the case made out in the complaint. According to PW 1, Tila Devi was alone in the house when the appellants came there and hanged her by tying her neck with a piece of rope. The complainant''s case, on the other hand, is that there was an altercation between the complainant & Tila Devi on one side and the appellants on the other over their cutting the earth from the complainant''s land. The appellants then assaulted the complainant and Tila Devi. This part of the occurrence took place out side the house and then, the appellants dragged Tila Devi inside the house where they proceeded to hang her by tying a piece of rope to her neck.

The other two eye-witnesses are Bachamau Devi (PW 5) and Palia Devi (PW 6). They indeed supported the prosecution case in its entirety as stated in the complaint petition. PW 5 is a chance witness inasmuch as she had gone to the complainant''s place for delivering milk when she saw the occurrence. PW 6, like PW 1, is an adjacent neighbour of the complainant. Apart from that, in her cross-examination, she stated that she will not say on Oath taken in the name of Ram that Jiraman is not her sister.

Complainant (PW 7) supported her statement made in the complaint. Her husband (PW 8) and the other three witnesses i.e. PWs. 2, 3 and 4 were examined to corroborate the evidences of the eye-witnesses. PWs. 2 and 4 said that they saw the appellants fleeing away from the complainant''s place and when they went to the complai-nant''s house, they saw a large number of people in the ANGAN. Tila Devi was lying there. She was unconscious and blood was coming out from her nose and mouth.

Madhu Kumar Ray (PW 3) is the son of PW 1. He is a cycle-cart puller and according to his deposition, he took Tila Devi on his cart first to Pothia hospital and from there to Islampur hospital and thereafter he came back. On the following day, he came to learn that Tila Devi died at Islampur hospital.

The prosecution witnesses apparently seem to fully support the complainant''s allegations and a cursory reading of their depositions would make it appear that following a quarrel over cutting of earth from the complainant''s piece of land by the appellants, they took Tila Devi inside the house and hanged her from a bamboo post by tying a rope around her neck. But as noted above, the evidence of PW 1 does not appear to be completely in accord with the complainant''s case with regard to the genesis and the manner of occurrence. PWs. 5 and 6 of course supported the complainant''s case but they were examined for the first time before the Trial Court after 15-months of the occurrence. PW 5 is a chance witness and PW 6 is an adjacent neighbour who in all probability is the sister of the complainant. The other witnesses too are closely or distantly related to the complainant. The enmity between the two sides is not only admitted but it had already resulted in a number of Court cases.

The biggest difficulty in the way of prosecution more over is the complete absence of any medical evidence and an independent investigation into the alleged crime leading to some objective findings.

The police station is at a distance of 1000 feet (see PW 2, paragraph 6) from the place of occurrence. In other words, it was at a calling distance and to say the least, it appears highly improbable that a homicidal hanging took place and a crowd assembled at the site of the crime but no information reached the Police and no one came from the police station.

In the complaint petition, there is of course a two-line statement that information with regard to the occurrence was given at the Police Station and also to the Superintendent of Police but no action was taken by the police. But no material in support of the averment was produced in Court.

Another highly curious aspect of the matter is the complete absence of the medical evidence. According to the prosecution case, Tila Devi was taken to a hospital at Islampur which is in West Bengal. She died there and a post-mortem was held on the following day (27.5.1999). In course of enquiry before the Magistrate, a photocopy of the carbon copy of the postmortem report was produced. It is on record of the proceedings before the Magistrate but naturally it was not marked as exhibit before the Trial Court. The copy is very faint and it is mostly ineligible. The Trial Court has made a reference to it in paragraph 22 of the judgment, which is reproduced below:

"The learned C.J.M. has stated in the order dated 17.9.1999 while taking cognizance against these accused persons that he has gone through the photostate cop of the post mortem report dated 27.5.1999. The photostat copy of the post mortem report is available in the record and from perusal of the same it appears that death has been caused on account of asphyxia as a result of hanging."

I have examined the photocopy of the post mortem report. It is in a printed form and the hand-written portions of it are mostly very faint and inlegible. It can, however, be made out that there was a ligature mark on the neck of the deceased and from the fragments that are readable, it does appear that Tila Devi died as a result of strangulation. It must, however, also be noticed that from the Islampur hospital, the matter was reported to the Police and a case of unnatural death was instituted. The photostat copies of those documents are also part of the record of the Magisterial proceedings. It appears that in that case, Islampur Police Station had submitted to the Court a final report dated 23.1.2000 u/s 174 of the Code of Criminal Procedure stating it to be a case of suicide. The final form referredto the post mortem report in which it was stated that death was due to Asphyxia as a result of hanging and concluded that (the death) may be suicidal. The final report was accordingly that it was a case of suicide. It, thus, appears that at the Islampur hospital and at Islampur Police Station, the matter was reported not as homicidal but as suicide and it was only 19-days later that a complaint was filed making allegations against the appellants.

Curiously, the trial court simply brushed aside the non-production of the medical evidence on the ground that those were not easily available since those were in another State and the letters sent by the court to the Deputy Superintendent of the Hospital and the Deputy Superintendent of Police did not receive any reply (See para 23 of the trial court judgment). But it was completely overlooked that it was the obligation of the prosecution to produce those documents and how badly the appellants were prejudiced due to the non-production of the medical evidence and the other police documents from Islampur.

From the other attending facts and circumstances as well, it appears to be a case of suicide that was later used by the complainant to falsely implicate the appellants who were on enemical terms with her. It is seen that the appellants were admittedly carrying HASUA, stick, KUDAL etc. If they intended to kill Tila Devi a single well-aimed blow to her by any of those tools/weapons would have sufficed. It does not make sense that they should drag her inside her house and try to kill her by the elaborate process as alleged by the complainant.

In view of the aforesaid facts and circumstances, especially having regard to the complete absence of any medical evidence and any findings on the basis of police investigation, it would be highly unsafe to convict the appellants of the serious offence of murder and to send them to life terms of jail.

I, accordingly, set aside the judgment and order coming under appeal and acquit the appellants of the charge.

Before laying aside the record of the case, I must express my deep unhap-piness over the way the C.J.M. dealt with the complaint. Having regard to the very serious allegations made in it there was no reason for him not to refer it to police for investigation and to proceed on the basis of the enquiry u/s 202 CrPC. In such serious matters, it is always safer and of great practical advantage that the allegations should be investigated independently by police. In case the result of the investigation goes against the complainant, it is open to him to file a protest petition. But in that case the court has the benefit of an independent investigation and has for easier access to medical evidence and other forensic/expert evidences. Had this matter been investigated by the police, the Court would not have been compelled to act on such inadequate materials.

In any event, what has been brought before the Court is wholly insufficient and inadequate to sustain the conviction and sentence passed against the appellants, and hence, those are set aside. In the result this appeal is allowed. The appellants Ram Pravesh Rajak, Bidyan-and Rajak and Binod Rajak are directed to be released forthwith unless required in connection with any other case. The appellants Rabbi Rajak and Lalo Devi are discharged from the liability of their bail bonds.

Rekha Kumari, J.

I agree.