Pradeep Kumar Srivastava, J.

1. Above captioned appeals are arising out of common judgment. Hence, taken together for hearing.

2. We have already heard Mr. Aditya Kumar Choudhary, learned counsel for the appellants as well as Mrs. Nehala Sharmin,

Special Public Prosecutor.

3. Instant criminal appeals are directed against the common judgment of conviction and sentence dated 20.01.2003, passed by learned Additional Sessions Judge-F.T.C. No.2, Deoghar in Sessions Trial No.16 of 2001, whereby and whereunder, the appellants have been held guilty for the offences under Sections 302/201/34 of the I.P.C. and sentenced to undergo imprisonment for life for the offence under Section 302 of the I.P.C. and directed to undergo S.I. for 06months under Section 201 of the I.P.C. All the sentences were directed to run concurrently.

Factual Matrix

4. Factual matrix giving rise to these appealsis that the daughter (Rekha Devi) of the informant was married with Kishore Pandit about 10 to 12 years prior to occurrence and has been blessed with a child aged about 08 to 10 years. It is further alleged that the husband (Kishore Pandit) of the daughter of the informant had solemnized second marriage and since then, started subjecting his first wife (Rekha Devi) with cruelty and harassed her by torturing, therefore, the daughter of the informant filed a complaint case no. 233 of 1999 under Section 498A of the I.P.C. against her husband before Deoghar Court and started living at her parental home. It is further alleged that on 15.07.2000, date was fixed for hearing in the aforesaid complaint case filed by the daughter of the informant before Deoghar Court, where both parties along with other co-accused persons were present and on oral direction of court Rekha Devi proceeded with her husband to her matrimonial home on assurance that she will be kept with all dignity and honor. Accordingly, the complainant Rekha Devi left the Court at about 04:00 PM on 15.07.2000 and proceeded to her matrimonial home at village Sarkanda. It is further alleged that on 16.07.2000, in between 11:00 to 12:00 hours in night, informant came to know from one Ayodhya Pandit that the accused persons had not taken Rekha Devi to matrimonial home rather they have killed her in the way and thrown the dead body into a well at Chandi Dih Bahiyar. In order to verify the above information about the murder of his daughter and after finding the aforesaid information correct, the informant has lodged F.I.R.

5. On the basis of above fardbeyan of the informant (Prayag Pandit) Jasidih (Kunda)P.S. Case No 128 of 2000 was instituted against all the appellants namely Gulam Pandit, Sudama Devi,Vasudeo Pandit, Shambhu Pandit and Kishor Pandit for the offences under Sections 302/34/201 of the Indian Penal Code dated 17.07.2000, but other co- accused persons namely Panda Pandit, Raghunath Pandit and Bhola Pandit were not sent up for trial.

6. After conclusion of investigation charge-sheet was submitted for the offence under Sections 302/34/201of the I.P.C.

7. The case was committed to the court of sessions for trial where appellants pleaded not guilty and claimed to be tried.

8. In order to prove the charges against the appellants, the prosecution has examined 14 witnesses and apart from oral testimony of witnesses following documentary evidences were also adduced:-

                  Exhibit-1:- Signature of Prayag Pandit (Informant). Exhibit-2:-Post-Mortem Report of Rekha Devi.

                  Exhibit-3:-Fardbeyan.

                  Exhibit-4:- Carbon Copy of inquest report.

                  Exhibit-5:- Compromise Petition between Kishore Pandit & Rekha Devi filed in A.B.P.N. 211 of 211/1999.

                  Exhibit-6:- Endorsement order-sheet dated 25.01.2000 in A.B.P. No. 211/1999.

                  Exhibit-7:- Carbon Copy of judgment in T.R. Case No. 648 of 2002. Exhibit-8 to 8/1:- Petition dated 17.07.2000 & 18.01.2000.

9. On the other hand the case of defence is denial from the occurrence and false implication and also adduced the following: Exhibit-A:-Complaint Petition in P.C.R. No. 233 of 1999.

                  Exhibit-B:- Carbon Copy of Vakalatnama filed on behalf of Rekha Devi in P.C.R. No. 233 of 1999.

                  Exhibit-C:- Carbon Copy of Petition filed by the complainant dated 27.06.2000 in P.C.R. Case No. 233 of 1999.

                  Exhibit-D:- Carbon Copy of Petition filed by the accused Kishore Pandit dated 26.06.2000 in P.C.R. Case No. 233 of 1999.

                  Exhibit-E:- Carbon copy of rejoinder petition filed by the accused Kishore Pandit dated 15.07.2000.

                  Exhibit-F:- Carbon copy of order sheet dated 15.07.2000 passed in P.C.R. Case No. 233 of 1999.

10. After conclusion of trial, the appellants have been held guilty and sentenced as stated above, which has been assailed in these appeals.

11. Learned counsel for the appellants has vehemently argued that learned trial court has miserably failed to properly appreciate that out of 14 witnesses examined by the prosecution, none of them are eye-witness of occurrence. The most vital fact stated against the appellants that they have taken away the daughter of the informant with them from the court on the oral direction of the court, but nothing has been brought on record by the prosecution to prove the above facts. The defence has also brought on record the order-sheet dated 15.07.2000 of the complaint case No. 233 of 1999 under Section 498A, 323, 379 of the I.P.C. which does not reveal above facts and there is no whisper at all in the order sheet dated 15.07.2000 that the accused persons have taken the deceased with them on assurance that they will keep the deceased with full dignity and honor. None of the prosecution witnesses have seen the deceased and the accused persons together on the date of alleged incident. It is further submitted that in the statement of accused persons recorded under Section 313 of the Cr.P.C. there is no question that they have taken away the deceased along with them on oral direction of court passed in Complaint Case No.233 of 1999. Therefore, the very genesis of the occurrence is based upon conjecture and surmises, the dead body of the deceased has not been found from the house of the appellant nor they were aware of the said incident. It is further contended that from the Post-Mortem report of the deceased, it appears to be a step of commission of suicide by her showing no involvement of the appellant in causing any injuries to her or dashing into well. The informant (P.W.8) who happens to be the father of the deceased, has admitted in clear terms that on the date of occurrence, the deceased was living with him at parental home and went to attend the court's proceeding. He has not denied that on the date of occurrence, he has not gone to court with his daughter. It is quite unnatural to imagine that court would direct the wife to go again with her husband, when the application dated 29.06.2000 was filed by the complainant (deceased) against her husband and in-laws for ill-treatment and torture meted to her at the instance of husband and other co- accused-persons, hence she returned back to her parental home on 25.06.2000 due to clear cut violation of compromise between the parties and the rejoinder was also filed by the appellants on 15.07.2000, which has to be disposed of on the next date. There is no whisper in the order dated 15.07.2000 that the deceased was sent to her matrimonial home again, in spite of her complaint of ill- treatment and torture. It is further submitted that there may be possibility of suicide by deceased under overwhelming circumstances due to her matrimonial dispute. There is no concrete evidence against the appellants to sustain their conviction for the offence under Section 302 of the I.P.C. The learned trial court has miserably failed to consider the evidence available on record and arrived at wrong conclusion while recording the guilt of the appellants for offence of murder. The impugned judgment suffers from serious error of law and based upon concealment of material facts. Therefore, impugned judgment and order deserves to be set aside, allowing this appeal.

12. On the other hand, learned Special Public Prosecutor has opposed the contentions raised on behalf of appellants and submitted that both the parties have led their evidence in respect of marriage and dispute between the deceased and the appellants. The complaint case lodged under Section 498A of the I.P.C. is admitted one wherein the appellant-husband was granted bail on the basis of compromise to keep his wife with full dignity and honour. The deceased was taken to her matrimonial home, but again she was driven away due to presence of second wife of her husband, she was subjected to cruelty and harassment. An informatory application was filed on behalf of deceased in the complaint case lodged under Section 498A of the I.P.C. for cancellation of bail of the accused persons due to violation of terms and condition of compromise. The rejoinder was also filed by the appellants on 15.07.2000. Under such circumstances, it is quite strange to assume that the deceased wife was not sent to join her matrimonial home with her husband as per oral order of the court. The learned trial court has very wisely and aptly considered all the aspects of the case as well as oral and documentary evidence available on record and arrived at right conclusion about the guilt of the appellants in respect of charges leveled against them. The appellants have failed to brought any material evidence on record to disbelieve the prosecution story and also failed to point out any illegality or infirmity in the impugned judgment calling for any interfere in this appeal, which is devoid of merits and fit to be set dismissed.

13. The only point for determination in these appeals is that whether the impugned judgment and order of conviction and sentence of the appellants suffers from any error of law calling for any interference, or not?

14. Before imparting our verdict on the point, we have to apprise with the evidence adduced in this case.

15. It appears that altogether 14 witnesses were examined by the prosecution to substantiate the charges leveled against the accused persons out of them P.W. 1 MohemmadAlam, P.W.2-Nimadhar Pandit, P.W.3- Mohemmad Jabbar, P.W.4- Radhey Singh, P.W.-5 Sanjay Kumar, P.W.10- Pawan Kr. Pandit, P.W.11 Latif Mian, P.W.12- Kamruddin have been declared hostile by the prosecution and they have failed to express any knowledge about the incident.

16. Admittedly, there are no eye witnesses of the occurrence, the prosecution case hinges upon circumstantial evidences alone.

                  The important circumstance which has been brought on record by the informant-cum-father P.W.8 (Prayag Pandit) of the deceased. According to his evidence, the husband of Rekha Devi (deceased) solemnized second marriage thereafter, tense relationship developed between husband and wife and Rekha Devi lodged a complaint case against her husband which was compromised and during the pendency of anticipatory bail application of the husband of deceased, a compromise was entered into between the parties in the month of January 2000 and the deceased went to her matrimonial home, but again she was neglected and tortured by her husband and returned to her parental home and informed the Court about the ill-treatment meted to her. On the oral order of the Court on 15.07.2000, the deceased proceeded with her husband to her matrimonial home, but in the way she was done to death by her husband and in-laws family members. P.W.6 Govind Pandit and P.W.7 Sita Ram Pandit are brothers of informant and corroborated the version of P.W.8.

                  P.W.14 Shri Dhar Pandit is a formal witness who has proved the compromise petition filed in A.B.P. No. 211 of 1999 and order sheet dated 25.01.2000 (Exhibit-6) in connection with complaint case lodged by Rekha Devi (deceased) under Section 498A of the I.P.C. Other witnesses are family members of the deceased, admittedly not eye-witnesses of the occurrence.

                  P.W.9 Dr. Rameshwar Mahto has conducted autopsy on the dead body of the person of the deceased (Rekha Devi) on 17.07.2000 and found following ante-mortem injuries:-

                  The body was swollen and there were bubbles all over the body. There was bleeding from nose. Blood clot beneath the scalp and there was fracture of right parietal bone. Brain and meninges pale. On opening of chest-both lungs pale, heart right full of blood left chamber empty. Abdomen- Stomach empty. Spleen, Kidneys and liver pale. Bladder empty. Uterus having male fetus of about 16 week’s size.

                  External Gentilia- NAD.

                  Time elapsed since death within 48 hours at the time of Post-

                  Mortem examination.

                  It is opined that the death was due to hemorrhage and shock as a result of above noted injury on the skull bone caused by hard and blunt substance. There were no signs of drowning. He has proved the post-mortem report as Exhibit-2.

                  In his cross-examination, this witness admits that there was no visible injuries on the dead body. Fracture of parietal bone is possible if the body jumps into the well and strikes against the wall of the well. If parietal bone is fractured, the injured will become unconscious immediately.

                  P.W.13 S.I. Janardan Kumar Singh is the investigating officer of this case. According to his evidence, on 16.07.2000, he was posted as Officer-In-Charge at Kunda Police Station. On that day, at about 16:00, he received information through rumor that near Chandi Dih Bahiyar in a well, a dead body is lying. He recorded S.D. entry and along with Choukidar, 6/4 Gunji Pandit, 6/5 Sukhdeo Mahato, 6/3 Sitaram Hazra and armed forces proceeded towards the place of occurrence. He reached village Chandi Dih Bahiyar at about 06:30 PM from where at a distance of 01 kilometer near a well, crowd was gathered. A dead body of a female was brought out with the help of villagers. He also recorded fardbeyan of Prayag Pandit (informant-cum-father of the deceased). Inquest report was also prepared in presence of the witnesses. He also recorded statements of Mohd. Kamruddin, Latif Mian, Jabbar Mian of village Chandi Dih Bahiyar. He further recorded the statement of witnesses namely Pawan Kumar Pandit, Sakhshi Madho Singh, Sakshi Tunni @ Dinesh Kumar Lal, Sanjay Singh and others. He has proved the fardbeyan as Exhibit-3, inquest report as Exhibit-4 and after completion of investigation, submitted charge-sheet again the accused persons.

                  In his cross-examination, he admits that in the inquest report, Coloumn 4 is blank and during inquest, it was opined that the deceased has died due to drowning. He also admits that he has not inspected the case record wherein the compromise was entered into between the parties.

17. On the other hand, defence has also examined two witnesses namely:-

                  D.W.1Binod Kumar is the formal witness and an advocate clerk who has proved the complaint petition as Exhibit-A and vakalatnama as Exhibit-B and petition dated 27.06.2000 as Exhibit- C and signature of Rama Shankar Pandit, Advocate as C/1.

                  D.W.2 Binod Kumar Malviyais also an advocate Clerk and a formal witness who has simply proved the petition dated 15.07.2000 as Exhibit-D.

18. We have given anxious consideration to the oral as well as documentary evidences adduced by the parties during trial in the light of contentions raised on behalf of both side and also gone through the impugned judgment.

19. It appears from perusal of impugned judgment that without entering into scrutinization of evidence of main witnesses of fact namely Govind Pandit P.W.6, Sita Ram Pandit (P.W.7) and Prayag Pandit (P.W.8) who are close relatives including the informant- cum-father of the deceased, the learned trial court has relied upon the circumstances propounded by the prosecution in totality as a gospel truth and held the appellants guilty for the offences charged.

20. The circumstances relied upon by the prosecution are as under:-

                  (i) There was tense relationship between the deceased and her husband Kishore Pandit due to solemnization of second marriage by the husband.

                  (ii) On account of having second wife, the appellant Kishore Pandit used to physically assault and torture his first wife Rekha Devi (deceased) frequently.

                  (iii) On account of torture meted with deceased, left her matrimonial home and started residing at her parental home and instituted a P.C.R. Case No. 233 of 1999 dated 29.05.1999 under Section 498A of the Indian Penal Code against her husband and in-laws family members.

                  (iv) In the above complaint case, the appellant Kishore Pandit moved for a Anticipatory Bail Application vide A.B.P. No. 211 of 1999 before Sessions Judge, Deoghar wherein vide order dated 25.01.2000 on the basis of compromise arrived at between the parties, the appellant Kishore Pandit was extended privilege of interim anticipatory bail till 24.02.2000 and complainant Rekha Devi (deceased) in compliance of the aforesaid order dated 25.01.2000 went to her matrimonial home along with her husband.

                  (v) The said provisional anticipatory bail was confirmed vide order dated 06.05.2000.

                  (vi) Rekha Devi (deceased) was again treated with cruelty, tortured, abused and assaulted at the hands of the appellant including her husband and by her Sautan namely Jamuni Devi also brutally assaulted the complainant and turned out from matrimonial home while she was carrying three months’ pregnancy. Then on 27.06.2000, Rekha Devi (deceased) lodged an informatory application before the concerned court of Judicial Magistrate, Deoghar.

                  (vii) Just one day prior to above informatory application by the complainant (deceased) dated 27.06.2000, the accused Kishore Pandit also filed an informatory application dated 26.06.2000 that his wife has been taken away by her father on 26.06.2000 without his consent.

                  (viii) Accused Kishore Pandit also filed his rejoinder against the petition dated 27.06.2000 filed by the complainant on 15.06.2000.

                  (ix) On fateful day i.e. on 15.07.2000, the complainant (deceased) proceeded with her husband and other accused persons to join her matrimonial home, but in the way she was done to death by brutally assaulting her and throwing into well.

                  (x) The investigating Officer has categorically stated several local witnesses have seen the deceased and accused persons in between 07:00 to 08:00 PM passing through Chand Dih Bazar.

                  (xi) The place of occurrence village Chand Dih Bahiyar is also come in the way to village Sarkanda of the accused persons. The investigating officer (P.W.13) has also stated that just after the occurrence, he raided the house of the accused persons, but they all were absconding.

21. The learned trial court considering the above circumstances as pointed out by learned A.P.P., to be conclusively proved by the prosecution and leading to only inference of guilt against the appellants arrived at conclusion of guilt of the appellants and convicted and sentenced them for the offences under Sections 302, 201/34 of the Indian Penal Code.

22. We have given thoughtful consideration to the circumstances relied upon by the prosecution and on the basis of discussion of evidence as aforementioned find the following circumstances are admitted and well proved.

                  (i) Deceased was married with the appellant Kishore Pandit in the year 1988 and was blessed with a child out of their wedlock. There was some matrimonial dispute between the husband and wife and alleged physical and mental torture. Due to that reason, the deceased returned to her parental home and lodged a complaint case no. 233 of 1999 against her husband and in-laws family members.

                  (ii) The appellant Kishore Pandit presented his anticipatory bail application before learned Sessions Judge, Deoghar vide A.B.P. No.211 of 1999 in which vide order dated 25.01.2000, he was granted interim anticipatory bail on the basis of compromised between the parties which was confirmed vide order dated 06.05.2000.

                  (iii) Further development shows that on 27.06.2000, the complainant since deceased filed an informatory application before the concerned court of Judicial Magistrate, Deoghar that she has been again ill-treated, tortured and ousted from the matrimonial home on 25.06.2000. The appellant Kishore Pandit has also lodged an informatory application prior to his application of wife on 26.06.2000 that his wife has left her matrimonial home along with her father and does not want to reside in his house. The regular rejoinder to the petition dated 27.06.2000 filed by the complainant was filed by the appellant Kishore Pandit on the alleged fateful day of occurrence dated 15.07.2000.

                  (iv) It is alleged by prosecution that on the oral direction of concerned Court of Judicial Magistrate, Deoghar in complaint case no.233 of 1999 dated 15.06.2000, the complainant/deceased again went to her Sasural along with her husband and other appellants. The prosecution also relies upon deposition of Investigating Officer that some of the witnesses had seen the accused persons along with the deceased on 15.07.2000 in between 07:00 to 08:00 P.M. at Chand Dih Bahiyar. Thereafter, her dead body was recovered.

23. We find that above two vital aspects/circumstances of the case has not been proved by the prosecution through any cogent and reliable evidence. It appears from the order-sheet dated 15.07.2000 that on the same day rejoinder was filed against the petition dated 27.06.2000 of the complainant and the case was fixed for 25.07.2000 with direction to physical appearance of other accused persons also. There is no whisper in the said order that the appellants were directed to take away the complainant with them to matrimonial home. There is also no whisper in the evidence of P.W.8 informant –cum-father of the deceased that on the date fixed i.e. 15.07.2000, the victim went to attend the court alone or accompanied with her father or by any other family members. It also appear that not a single witness examined by the prosecution have been able to prove that the deceased and the accused persons were seen together on 15.07.2000 near the place of occurrence. There is no evidence that the deceased was assaulted by the accused persons and they dashed her into well. The informant (P.W.8) has also not specifically stated that on 15.07.2000, he was present in the court along with his daughter and the deceased proceeded from court along with accused persons as per direction of the Court. We further finds that the Investigating Officer (P.W.13) S.I. Janardan Kumar Singh of this case who was the then, Officer-In-Charge of Sarkanda Police Station received information on 16.07.2000 at about 04:00 PM through rumour that a dead body is lying into well situated near Chand Dih Bahiyar. Accordingly, S.D. entry was entered and he proceeded to the place of occurrence. The prosecution has also not proved the factum of second marriage of the appellant Kishore Pandit and no cognizance of offence under Section 494 I.P.C. was taken by the concerned Court. P.W.8 informant-cum-father of the deceased also came to know about the occurrence through message given from police station through Chaukidar and also from one Ayodhya Pandit. He has also admitted in clear terms before and after compromise his daughter was residing in his house. He has also not corroborated the earliest version contended in the first information report that on 15.07.2000, there was any oral direction of the Court in compliance of which his daughter went to her matrimonial home along with the accused persons.

24. In view of the above discussion and reasons, we find that material link evidences in the chain of circumstances relied upon by the prosecution are absolutely absent. The very genesis of occurrence is that on 15.07.2000 there was oral order of the court to join the matrimonial home, but there is no reliable evidence showing that deceased and accused persons proceeded together from the court or anywhere last seen together prior to occurrence. Therefore, the appellants are involved only on the basis of suspicion and nothing else. The learned trial court has miserably failed to appreciate the evidence of witnesses in the light of attending circumstances. The testimony of the witnesses has been translated verbatim thereafter arguments have been noted and judgment of conviction has been passed without evaluating the evidence and the circumstances relied upon by the prosecution. Therefore, we are constrained to set aside the impugned judgment of conviction and sentence of the appellants. Accordingly, impugned judgment and order of conviction of appellants is hereby set aside and these appeals are allowed.

25. Appellants are on bail, as such, they are discharged from liability of their respective bail bonds and sureties are also discharged.

26. Pending I.As, if any stand disposed of.

27. Let a copy of this judgment along with trial court record be sent to the concerned court forthwith for information and needful.