NAGWA DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE aforesaid two criminal appeals along with the Death Reference No. 3/96 and Cr. Appeal No. 303/96 were heard together by a Division Bench but since the learned Judges took a divergent view these two appeals have been placed for hearing before me by an order of the Hon ble Chief Justice.

(2.) THESE two appeals aforesaid and the Death Reference along with Cr. Appeal No. 303/96 arise out of the judgment and order dated 19th July, 1996 passed by the learned 2nd Additional Sessions Judge, Bhabua, whereby the learned Judge has found the appellants Nagwa Devi and Dasarath Bind guilty of the charges under Section 302, IPC and appellant Dasarath Bind was sentenced to death and directed to be hanged by neck till his death. The appellant Nagwa Devi, however, was sentenced to undergo rigorous imprisonment for life. The trial Court has found the accused Bigan Bind, Ram Surat Bind, Swarath Bind and Kumar Bind, who are appellants in Cr. Appeal No. 303/96, guilty under Section 302/34, IPC and they were also sentenced to undergo rigorous imprisonment for life. However, the trial Court has acquitted accused Khar Chamar as the prosecution has failed to prove its case against him beyond all reasonable doubt. The accused Bigan Bind, Ram Surat Bind, Swarath Bind and Kumar Bind have filed separate appeal being Cr. Appeal No. 303/96 and similarly the accused Nagwa Devi and Dasarath Bind filed separate appeals which were registered as Cr. Appeal Nos. 337 and 364 of 1996 respectively. Both the learned Judges have found the appellants of Cr. Appeal No. 303/96 not guilty of the charges framed against them on the basis of the evidence adduced on behalf of the prosecution and ultimately acquitted them of the charges. As regards the appellant Dasarath Bind, one of the Judges, namely, Mr. Justice R.N. Sahay has found the appellant Nagwa Devi as well as Dasarath Bind guilty of the charges under Section 304, Part I, IPC and sentenced them to 7 years rigorous imprisonment and, accordingly, the Death Reference has been discharged having regard to the fact that conviction of the appellant Dasarath Bind was altered to that of Section 304, Part I, IPC Mr. P.K. Sarkar, J. However, has found both the appellants Nagwa Devi and Dasarath Bind guilty of the charges under Section 302, IPC and confirmed the sentences of life imprisonment passed by the trial Court. However, the sentences of death awarded by the trial Court has been altered to that of imprisonment for life and, accordingly, sentence of death passed by the trial Court against accused Dasarath Bind has been set aside. With the aforesaid modification in the order of sentence the learned Judge has dismissed the appeal. As stated above, all the appellants in Cr. Appeal No. 303/96 have been acquitted by both the learned Judges. The remaining two appeals namely, Cr. Appeal Nos. 337 and 364. of 1996 wherein a divergent view has been expressed by the learned Judges, have come up before me by order of the Hon ble Chief Justice, as stated above.

(3.) THOUGH the prosecution case has been set out by R.N. Sahay, J., in his judgment yet I feel inclined to mention the prosecution case in detail in order to appreciate the points involved as well as rival contention raised by the learned Counsel for the parties. The prosecution case briefly stated is that the informant Gangaratia Devi, P.W. 3, lodged a first information report to the effect that the deceased Bigan Bind, her son -in -law; and deceased Sadan Bind came to her at village Nauajhoti on a scooter. Both Bigan Bind and Sadan Bind stayed for some time at her house and, thereafter, they started for the village Siwo on foot with scooter in hand. The informant claimed to have gone with them only to see them off. Both Bigan Bind and Sadan Bind came to the door of the appellant Dasarath Bind at about 12.15 p.m. It is further alleged that appellant Nagwa Devi, Dasarath Bind along with 4 other accused persons of Cr. Appeal No. 303/96 caught hold Bigan Bind and Sadan Bind and brought them in the courtyard of their house. The informant was also following them. It is further alleged that all the accused persons including the appellants tied both the hands of Bigan Bind and Sadan Bind by taking their hands towards back with napkin. Thereafter, they threw Bigan Bind and Sadan Bind on the ground and assaulted with Farsa and Garasa. According to the prosecution Nagwa Devi assaulted the deceased Bigan Bind with Farsa and accused Dasarath Bind assaulted the deceased Sadan Bind with Garasa, as a result both Bigan Bind and Sadan Bind succumbed the injuries on the spot. It is alleged that when the informant raised India, accused persons dragged her out of the courtyard. Meanwhile several villagers came who were threatened by the accused persons and they were not allowed to enter into the courtyard. The motive of committing murder of these two persons alleged to be the illicit relation with accused appellant Nagwa Devi wife of accused Dasarath Bind. The deceased Bigan Bind, being son -in -law of the informant living with her at village Nauajhoti for the last 5 -6 years and looking after the cultivation of the informant. It is alleged that during that period the deceased Bigan Bind developed illicit relation with accused appellant Nagwa Devi, wife of accused Dasarath Bind. It is further alleged that Nagwa Devi lived in the house of deceased Bigan Bind for three months and thereafter, deceased Bigan Bind removed her from his house. It is alleged that both the aforesaid deceased were killed because of such illicit relation with appellant Nagwa Devi. On the aforesaid allegation a first information report was lodged on the same day at about 3.30 p.m. at the residence of accused Dasarath Bind itself, which was registered, as Bhabua P.S. case No. 109/91. After usual investigation the police submitted char -gesheet and after completing the formalities the case was committed to the Court of Sessions for trial. Specific defence of appellant Nagwa Devi however, is that both the deceased after having kidnapped were taking their minor son on a scooter and when they made protest, the deceased fired shot on them. Accordingly, they caught hold both the deceased and killed them in exercise of the right of their private defence of their lives as well as life of their son. The other accused persons, however, pleaded not guilty and according to them they were falsely implicated in this case. Accordingly accused Dasarath Bind lodged a first information report against the aforesaid two deceased, namely, Bigan Bind and Sadan Bind, which was registered as Bhabua P.S. case No. 110/91 under Sections 363 and 511, IPC. Including Sections 25 and 26 of the Arms Act. According to the defence, one country made pistol along with two cartridges and one empty cartridge were produced before the police by accused appellant Dasarath Bind at his door. The aforesaid Bhabua PS. case No. 110/91 was ultimately investigated and the counter version of the defence has not been proved, as it appears from the order of the trial Court.