Cr. Appeal No. 502/2001
[Against the judgment of conviction and the order of sentence dated 30.11.2001
passed by Shri Rakesh Ranjan Verma, learned Ist Additional Judicial
Commissioner, Khunti in S. T. No. 429/1991.]
Sukhdeo Kumar ..... Appellant
Versus
The State of Jharkhand ..... Respondent
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PRESENT
HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
HON'BLE MR. JUSTICE PRASHANT KUMAR
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For the Appellant - M/s Manoj Kumar, Deepak Kumar
For the State - Mr. R.Mukhopadhyay, A.P.P
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By Court: This criminal appeal has been preferred by the appellant against the
judgment of conviction and the order of sentence dated 30.11.2001 passed by
Shri Rakesh Ranjan Verma, learned Ist Additional Judicial Commissioner, Khunti
in S. T. No. 429/1991.
2. The accused-appellant was charged for committing the murder of his wife-
Nirmala Devi and was prosecuted for committing an offence under Section 302
IPC. The Court below by the impugned judgment convicted the appellant under
Section 302 IPC and sentenced him to undergo R.I for life.
3. The prosecution was launched on the basis of the F.I.R lodged by the
accused-appellant-Sukhdeo Kumar. According to the F.I.R, the prosecution case,
in short, is that while the appellant was going to Tata along with his wife on his
Silver Plus Moped No. BPV-5054, suddenly his Moped broke down and stopped
near Taimara Ghati. The appellant and his wife got down from the Moped. The
appellant started cleaning the plug etc of the vehicle. In the meanwhile, three
persons came and one of them gave a strong slap on the appellant’s face. The
appellant dashed against the Moped and sustained bleeding injuries on his head.
Thereafter, the appellant was dragged towards South from the road and two
persons dragged his wife towards the Jungle. The appellant was kept restrained
at the point of Bhujali and was robbed of Rs. 650/-. The informant heard
screaming of his wife, but he was helpless. After some time, three persons came
from the side where they had taken his wife and fled away along with the person
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who was holding the appellant. Thereafter, the appellant went towards the
Jungle and found the neck of his wife slit and dead. The appellant raised alarm.
Several persons including some drivers and cleaners of the vehicles plying on the
road came there and helped the appellant to take him to Taimara T.O.P and
where he informed about the occurrence.
4. An F.I.R was drawn up on his statements and, thereafter, the case was
investigated into. On conclusion of the investigation, the police submitted charge
sheet under Section 302 IPC against the appellant for killing his wife and making
false, fabricated and concocted statements before the Police in order to cover up
his misdeed.
5. Charge under Section 302 IPC was framed against the appellant. The
appellant denied the charge and claimed to be tried. He was put on trial. In his
examination under Section 313 Cr.P.C. he denied to have committed any
offence.
6. The prosecution in order to establish the charge against the appellant,
altogether examined four witnesses. PW-1-Prabhu Lal Prajapati is the father of
the deceased, PW-2-Santosh Kumar Prajapati is the son of the deceased. PW-3-
Rajendra Prajapati is the uncle of the deceased. PW-4-Dr. Ajit Kumar Chaudhary
had conducted post mortem examination on the dead body of the deceased.
7. Learned Trial Court on conclusion of the trial held the appellant guilty of
the charge under Section 302 IPC on the basis of the materials on record. He
found that there was strained relationship between the appellant and his wife
Nirmala Devi and in order to get rid of his wife he finished her in a well
deliberated plan and concocted a story in order to save his skin. Learned Court
below, thus, convicted the appellant under Section 302 IPC and sentenced him
to undergo rigorous imprisonment for life.
8. Learned counsel for the appellant has assailed the said judgment of the
Court below and submitted that there is not even an iota of evidence, either
direct or circumstantial, on the point of homicidal death and that too, a culpable
homicide amounting to murder of Nirmala Devi by the accused-appellant. The
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entire judgment is based on mere suspicion. Learned Trial Court has come to the
conclusion on only consideration that there was strained relationship between
the appellant and his wife Nirmala Devi and that in the past there was a divorce
case and a maintenance case between them. Except the allegation and evidence
of strained relationship, there is no material/evidence on record to support the
charge of murder of Nirmala Devi by the appellant. Learned counsel submitted
that this is a case of no evidence and learned Trial Court has committed serious
error of law as well as of the fact holding the appellant guilty of the said charge
and convicting and sentencing him under Section 302 IPC.
9. Learned A.P.P tried to support the impugned judgment of learned Trial
Court. He urged that on perusal of the evidences on record, it is evident that for
the past several years there was strained relationship between the appellant and
his wife. The father and the uncle of the deceased, PW-1 and PW-3, have proved
the said fact. Even the son of the appellant-PW-2, who was a child of about 10-
year-old at the time of the alleged occurrence and at the time of trial aged about
20 years, has corroborated the said fact. The appellant’s son-PW-2 has also
stated that there was strained relationship between the appellant and Nirmala
Devi. The circumstance of taking away the deceased by three unknown persons
inside the Jungle with no sign of ravishment and no removal of her ornaments is
also a strong circumstance which goes to definitely point out towards the guilt of
the appellant. Learned Trial Court on the basis thereof has rightly concluded that
nobody else than the appellant is the author of the murder of Nirmala Devi.
10. Having heard learned counsel for the appellant and learned A.P.P, we
meticulously appraised the evidences on record. On reading the evidence of PW-
1, who is the father of the deceased, we find that he has only stated about the
strained relationship between his daughter and the appellant. In paragraph 3 of
his deposition he has stated that after sometime of marriage a divorce suit was
filed by the appellant against the deceased Nirmala Devi which was later on
compromised. In paragraph 3 he has deposed that a child was born out of their
wedlock. He further deposed that on two-three occasions the appellant was
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called on false pretext of illness of Nirmala Devi and she was forcibly sent with
him. He stated that he got a letter that the appellant had kept Nirmala Devi
elsewhere and performed second marriage. In paragraph 7 he has stated that on
27.11.90 he was informed through a Telegram that his daughter was murdered.
In paragraph 10 he has stated about the maintenance case which was also
subsequently settled. PW-2 is the son of the appellant and the deceased Nirmala
Devi. In paragraph 1 of his deposition he has stated that the relationship
between his father and mother was not cordial. There were frequent quarrel. He
has not stated anything relating to murder of his mother by the appellant. PW-3
is the uncle of the deceased Nirmala Devi. In paragraph 1 of his deposition he
has corroborated the allegation and fact that there was strained relationship
between the appellant and Nirmala Devi and that there was a case of divorce.
Subsequently, he came to know that she was murdered. He has also not uttered
anything regarding murder of Nirmala Devi by the appellant. The Doctor-PW-4
who conducted the post mortem examination on the dead body of Nirmala Devi
has proved that there were several injuries on the person of the deceased
Nirmala Devi. He found a number of abrasions and incised wounds on the dead
body of Nirmala. From his evidence, it is evident that there were grievous injuries
on the neck, cervical vertebra, chin and abdomen on the dead body of the
deceased, caused by sharp cutting weapon. According to his opinion, all the
injuries were ante mortem and the cause of death was shock and hemorrhage.
On perusal of the record, we find that in examination under Section 313 Cr.P.C,
the appellant was asked to explain the allegation and the circumstance under
which he murdered his wife by causing grievous injuries on her person with
sharp cutting weapon. The appellant denied the said allegation.
11. Thus, after close scrutiny of the said evidences, we do not find even an
iota of evidence in support of the allegation against the appellant of killing his
wife Nirmal Devi. The prosecution witnesses have not uttered any word in
support of the same. Learned Trial Court only on the basis of the suspicion has
erroneously found the appellant guilty of committing murder of his wife.
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Questions regarding the said suspicion and circumstance, which have been used
for convicting and sentencing the appellant, were not put to him during his
examination under Section 313 Cr.P.C. In Ajay Singh Vs. State of
Maharashtra reported in (2007) 12 SCC 341 it has been held by the Hon’ble
Apex Court that a circumstance which has not been put to the accused and he
was not given an opportunity to explain the said circumstance, the same cannot
be used for convicting him. That apart, except the strong suspicion against the
appellant gathered from the past relationship, institution of divorce case and
maintenance case, there is no direct or circumstantial evidence to establish that
the appellant and the appellant alone was the author of the murder of his wife.
It is well settled that that a suspicion, however strong, cannot take place of an
evidence and on that basis the accused cannot be convicted. Learned Court
below has, thus, committed serious error of law as well as of the fact in using
the said suspicion as a substituted evidence in convicting and sentencing the
appellant. We find no other material or ground for conviction of the appellant.
The ground on which the appellant has been convicted by learned Court below is
not sustainable in law and the impugned judgment of conviction and the order of
sentence based thereon cannot be upheld.
12. In the result, we allow this criminal appeal. The appellant is acquitted of
the charge levelled against him. The impugned judgment of conviction and the
order of sentence dated 30.11.2001 passed against the appellant by Shri Rakesh
Ranjan Verma, learned Ist Additional Judicial Commissioner, Khunti in Sessions
Trial No. 429/1991 are set aside. As the appellant is in custody, he is ordered to
be set at liberty forthwith, if not wanted in any other case.
(NARENDRA NATH TIWARI, J)
(PRASHANT KUMAR, J)
Jharkhand High Court, Ranchi
Dated 8.4.2009
S.K/NAFR