BASISTHA KUMAR SAH Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) This appeal has been directed against the judgment of conviction dated 24th April, 2009 and order of sentence dated 28th April, 2009 passed by the 3rd Addl. Sessions Judge, Godda in connection with ST. Nos. 79 of 2004/244 of 2008, corresponding to G.R. No. 20/2004 {arising out of Pathargama (Basantrai OP.) P.S. Case. No. 1/2004} whereby the appellant has been held guilty for the offence punishable under Sec. 302 of the Indian Penal Code and sentenced to undergo R.I. for life and also to pay fine of Rs. 5,000/ - and in default of making payment of fine amount he would further go R.I. for eight months. The prosecution case as it appears from fardbayan of Soni Devi in brief is that on 8.1.2004 at about 5 p.m. the informant was feeding her daughter by sitting in the 'Verandah' of the house. In the meantime her husband Basistha Kumar Sah (appellant) reached to the place, snatched away the child from her lap and after pressing the neck threw the child on the ground, as a result, she died. The informant disclosed the incident to her parent and thereafter matter was reported to the police. The appellant after committing the offence, fled away from the place. On the basis of fardbayan of Soni Devi, Pathargama (Basantrai O.P.) P.S. Case No. 1/2004 dated 9.1.2004 was registered under Sec. 302 of the Indian Penal Code.

(2.) The appellant has assailed the impugned judgment on the ground that Rukmini Devi (P.W. 1) and Kayabeer San (P.W. 3) have pretended themselves to be eye -witnesses but according to fardbayan they were not present in the house at the time of occurrence rather they had reached to the place after they were informed about the incident. These two witnesses are the parent of informant and they exaggerated their statement by saying that the deceased was taken to the Doctor where she was declared dead. Guru Dayal Sah (P.W. 2) is the uncle of the informant and he has also corroborated the statement of P.W. 1 and P.W. 3. Learned Counsel has pointed out that independent witnesses namely Badri Baitha (P.W. 5), Hira Lai Sah (P.W. 7) and Siyaram Mandal (P.W. 10) have not supported the prosecution case and they have turned hostile. Bhothri Yadav (P.W. 6), Pack Tantwa (P.W. 8) and Dilip Thakur (P.W. 9) have been tendered for their cross -examination.

(3.) It is submitted that the learned Trial Court has placed reliance on the deposition of informant (P.W. 11) but the statement of P.W. 11 is not consistent and it is not wholly reliable. The learned Addl. Sessions Judge has committed error by convicting the appellant only placing reliance on the statement of P.W. 11. It is pointed out that the informant in para 1 of her deposition has stated that the appellant had snatched away the deceased from her lap, throttled her and thrown the child on the ground. Thereafter he climbed on her belly. The Doctor did not find any fracture injury. No fracture on ribs or any injury on the belly had been detected during post mortem examination. The informant has said that she was married with the appellant in the year 2002 and she gave birth to a female child in the same year on the occasion of Diwali festival. The prosecution witnesses including the informant have tried to make out a case that informant is the legally wedded wife of appellant but they have not succeeded to prove the factum of marriage, which is apparent from the statement of D.W. 1. The informant has admitted that no family member of the appellant had participated in the marriage rather marriage between the appellant and the informant was solemnized in a TEMPLE'. They have applied for court marriage and according to the prosecution witnesses it was given effect but as per the evidence of D.W. 1 only application for solemnization of marriage was filed. The specific plea which the appellant has taken is that he has been implicated falsely by the informant and her family members. The informant and her family members had been compelling him to marry for which he was not agree and for that he has been roped in this case with false allegation. The informant had been living in adultery and the appellant has denied the parentage of the deceased. As a matter of fact, the appellant was not at all present in the house at the relevant point of time and he is completely unaware about the cause of death of the daughter of the informant. Where the conviction has been recorded on the testimony of a solitary witness, the Court should always be cautious and must consider that the evidence of solitary witness is fully reliable.