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CRIMINAL APPEAL (DB) No. 38 of 2002
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Against the impugned judgment of conviction and order of sentence
dated 20.12.2001 and 22.12.2001 respectively passed in S.T. No. 42 of
1997 by Shri Mahesh Pd. Tiwari, Sessions Judge, Deoghar.
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Puri Mahto @ Puri Yadav .... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
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For the Appellant : Mr. Hemant Kumar Shikharwar, Advocate.
For the State : Mr. T. N. Verma, A.P.P.
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PRESENT
THE HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
THE HON'BLE MR. JUSTICE PRASHANT KUMAR
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C.A.V. ON: 10.11.2009 Delivered On 07/12/2009
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Prashant Kumar, J: This appeal is directed against the judgment of conviction
dated 20.12.2001 and order of sentence dated 22.12.2001 passed by
Sessions Judge, Deoghar in S.T. No. 42 of 1997 whereby and
whereunder the appellant has been convicted under section 302 and 201
of the IPC and sentenced to undergo imprisonment for life for the offence
under section 302 of the IPC and rigorous imprisonment for two years for
the offence under section 201 of the IPC.
2. The case of prosecution in brief as per the fardbeyan of
Duban Mahto (P.W. 11) is that his daughter Shosho Devi married to the
appellant 8-9 years ago from the date of occurrence. It is further stated
that informant's daughter had come to her parental house in the month of
Bhado and at that time she was pregnant and very weak. It is further
stated that the appellant frequently used to come to his house for taking
his wife, but informant's wife Alwa Devi (deceased) refused to send her
daughter because she was pregnant and weak. It is further alleged that
because of that the appellant and his family members became angry. On
13.11.1996
at about 12 p.m., the appellant came to his house and told the
deceased that as he is going to Bombay for earning and will return after
four months, thus, she should accompany him for bringing the box and
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cloths of her daughter from his house. It is alleged that on being asked by
the appellant, deceased accompanied him and went to his village for
bringing the said box and cloths at about 4 p.m. It is then stated that
when she did not return till the evening, the informant, his son Madan
Yadav, nephew Basudeo Yadav, co-villager Bithal Yadav and others
started searching her. It is further alleged that when they went to the
house of appellant situated in village-Kusumdih at about 7-8 p.m. to
enquire about her, the appellant, his father and brothers told the informant
that his wife had not come. They showed their ignorance regarding her
whereabouts. It is further stated that thereafter informant alongwith others
returned and started searching the deceased in wells and ponds of the
village and in course of their search, they found her dead body in the well
of Anupa Mahto of village-Bishunpur. Thereafter, they informed the
police. It is stated that on arrival of police, the dead body was taken out
from the well. They found a cut injury on the middle portion of the head of
deceased. Thereafter, the statement of informant was recorded.
3. On the basis of the aforesaid fardbeyan, Mohanpur P.S. Case
No. 217 of 1996 dated 14.11.1996 was registered under sections 302 and
201/34 of the IPC. The police took up investigation and after completing
the investigation, submitted charge sheet against the appellant as well as
against Benga Mahto, Tilak Mahto and Babulal Mahto under sections 302,
120B and 201 of the IPC. It appears that learned C.J.M, Deoghar took
cognizance of the offence and thereafter committed the case to the court
of Sessions as the offence under section 302 of the IPC is exclusively
triable by a court of Sessions.
4. After commitment, the charges were framed against the
appellant and other accused persons under sections 302, 120B and 201
of the IPC. The charges were explained to the accused persons to which
they pleaded not guilty and claimed to be tried. The prosecution examined
altogether 13 witnesses in support of its case. The statements of appellant
and other accused persons were recorded by the learned court below
under section 313 of the Cr.P.C., in which their defence was of total
denial. Learned court below considered the evidences available on record
and acquitted co-accused Benga Mahto, Tilak Mahto and Babulal Mahto
as no sufficient evidence was found against them. However, learned court
below found sufficient evidence against the appellant and came to the
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conclusion that the prosecution has been able to prove the guilt of the
appellant beyond shadow of all reasonable doubt. The appellant has been
thus, convicted and sentenced as stated above. The present appeal has
been filed by the appellant challenging his conviction.
5. Assailing the judgment of the trial court, learned counsel for
the appellant submitted that there is no eye witness of the occurrence.
The entire case is based on circumstantial evidence. It is further
submitted that learned court below accepted the version of prosecution
witnesses with regard to alleged extra-judicial confession made by the
appellant. It is submitted that there is vital contradictions in the statement
of prosecution witnesses on the time and place where the confession had
been made. It is further submitted that even the informant who was
present along with P.W.-4, P.W.-7 and P.W.-9 had not stated anything
regarding the extra-judicial confession either in his fardbeyan or in his
deposition in court. Accordingly, it is submitted that the court below had
wrongly accepted the statement of prosecution witnesses with respect to
extra-judicial confession. It is then submitted that learned court below had
considered the evidence of P.W.-9 to the extent that this appellant had
become angry on the deceased’s refusal of sending her daughter with
him. It is submitted that the said evidence has been treated as a motive
for the commission of present crime. The appellant, however, was not
given any opportunity to explain the said evidence in his examination
under Section 313 Cr.P.C., though the same has been relied upon by
learned court below. The I.O. has not been examined in the case. Non-
examination of the I.O. has caused serious prejudice to the appellant. The
same is fatal for the case of prosecution. Accordingly, it is submitted that
the impugned judgment of the court below cannot be sustained.
6. On the other hand, learned Additional P.P. submits that
though there is no eye witness to the occurrence, the circumstances
available against the appellant are conclusive. It can be safely inferred
that the appellant and none else had committed the present crime. It is
submitted that almost all the prosecution witnesses of fact stated that the
deceased had gone with the appellant for bringing box and cloths of her
daughter from the appellant’s house. The deceased did not return and
thereafter, her dead body was recovered from a well. Another
circumstance is the extra-judicial confession of this appellant, leading to
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recovery of the dead body of the deceased. It is further submitted that the
appellant had motive to kill the deceased because he was not allowed to
bring his wife by the deceased. Accordingly, it is submitted that the
learned court below had rightly convicted and sentenced the appellant,
and the impugned judgment requires no interference by this Court.
7. Having heard the submission, I have critically examined the
evidences available on record. P.W. 5, Dr. Jugal Kishore Choudhary, is
the doctor, who held autopsy on the dead body of deceased on
15.11.1996 at 9:30 a.m. and found following ante-mortem injury –
One lacerated wound 2 ½” x ¾” x bone deep over centre of
skull ½” away from midline towards right side and there was blood clots
present in the wound.
On dissection of head and neck, the doctor had found
presence of haemotoma below the skull over centre and right parietal
region of skull. He also found fracture of parietal bone. The doctor further
found blood in the skull cavity. In the opinion of doctor, the death of the
deceased has been caused due to hemorrhage and shock as a result of
injury on the skull.
From perusal of cross-examination of P.W.-5, I find that the
aforesaid finding given by the doctor has not been challenged by the
defence. Thus, the prosecution has been able to prove that the deceased
died because of aforesaid injury.
8. Now, the next question arose for determination in this case is
whether the present appellant had any hand in the commission of murder
of the deceased? This brings me to consider other evidences available on
record. In the instant case, as noticed above, apart from doctor (P.W.-5),
other 12 (twelve) witnesses were examined by the prosecution:
P.W.-1, Basudeo Yadav, is a witness of fact but from the
record, it appears that he has not been produced by the prosecution for
his full cross-examination. His evidence has been excluded by learned
court below from the arena of consideration; P.W.-2, Mohan Mandal, has
been declared hostile; P.W.-3, Gobardhan Mahto and P.W.-10, Kailash
Yadav, are witnesses of inquest. They have not stated anything with
regard to the occurrence; P.W.-6, Lilu Mahto and P.W.-8, Karamchand
Mahto, have been tendered for cross-examination. They have also not
stated anything with regard to the occurrence; P.W.-13, Baldeo Rai, is an
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advocate clerk, who has proved the inquest report, fardbeyan and F.I.R.;
P.W.-4, Bithal Yadav, P.W.-7, Bimal Mahto, P.W.-9, Madan Yadav (son of
informant), P.W.-11, Duban Mahto (informant) and P.W.-12, Shosho Devi,
are the witnesses of fact.
9. From the perusal of evidence of aforesaid witnesses of fact, it
is clear that none had seen the occurrence from their own eyes. The entire
case of prosecution is based on circumstantial evidence.
10. It is well settled that for convicting an accused in a case of
circumstantial evidence, the prosecution is required to fulfill the following
condition:
(i) The circumstances from which the conclusion of
guilt is to be drawn should be fully established.
(ii) The fact so established should be consistent
only with the hypothesis of guilt of the accused,
that is to say, they should not be explainable on
any other hypothesis except that the accused is
guilty.
(iii) There must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability, the act must have been done by the
accused.
11. In the instant case, the prosecution had tried to prove the guilt
of the accused on the basis of following circumstances:
(a) That the appellant was angry with the deceased as she
refused to send her daughter (wife of appellant)
because she was pregnant and weak. Thus, the
appellant has motive to kill the deceased.
(b) The appellant has made extra-judicial confession and
on the basis of said confession the dead body of the
deceased was recovered from a well.
(c) The deceased had been last seen alive with the
appellant as she accompanied him to his village for
bringing the box and cloths of her daughter, thereafter
her dead body was recovered.
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12. So far as the first circumstance is concerned, the only
evidence on record is the evidence of P.W.-9 Madan Yadav, who is the
son of the deceased. He deposed that after karma festival, the appellant
came to his house for taking Shosho Devi but her mother (deceased)
refused to send her with the appellant because she was pregnant, which
causes annoyance to the appellant and he returned to his house. This
part of the evidence of P.W.-9 does not find any support from P.W.-11,
informant and P.W.-12, Shosho Devi. They have not stated anything that
because the deceased refused to send Shosho Devi with the appellant,
the appellant become angry. Moreover, from the perusal of evidence of
P.W.-9, it appears that on the date of occurrence, the appellant came to
their house (in-laws house of appellant), but on that day there was no
altercation in between the deceased and the appellant. Rather, the
evidence available on record shows that the appellant reached to his in-
laws house at 12 hours in the noon and returned from there at 4:00 p.m.
P.W.-12 specifically stated that on the date of occurrence, the deceased
prepared food for appellant (Puri Mahto). This shows that on the date of
occurrence, the relation between the appellant and the deceased was
cordial. Thus, in my view, the evidence of P.W.-9 that once upon a time
before the occurrence, the accused became angry as the deceased
refused to send his wife, cannot be treated as a motive for committing
such a serious crime.
In this respect, it is worth mentioning that learned court below
considered this circumstance as a motive for convicting the appellant.
From perusal of statement of the appellant under Section 313 Cr.P.C., I
find that learned court below had not put any question with respect to said
circumstance. The appellant, as such, has not been given any opportunity
to explain the same. It is well settled that while examining an accused
under Section 313 Cr.P.C., it is imperative upon the court to give
opportunity to the accused to explain all the circumstances on the basis of
which court is going to convict him and failure of the court in doing so is
sufficient to set aside the judgment in question. As, in the instant case, the
appellant has not been given any opportunity to explain the circumstance
regarding motive, therefore, in my view, learned court below committed
serious illegality in relying on the said circumstance as a basis of his
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finding and holding the appellant guilty of committing murder of Shosho
Devi.
13. Now, coming to the second circumstance i.e. extra-judicial
confession, I considered the evidence of P.W.-4, P.W.-7 and P.W.-9,
whose testimonies have been referred to and relied upon by learned trial
court. P.W.-4 Bithal Yadav stated that on the date of occurrence, they
went to the house of the appellant and to enquire about the deceased.
The appellant and his family members abused them and told that
deceased did not come to their house, they caught hold of the appellant,
and the appellant, thereafter, disclosed that he killed the deceased and
threw her dead body into a well. During the cross-examination, he stated
that they went to the house of the appellant at 7:00 p.m. in the night and
they talked to him outside his house. Thus, according to P.W.-4, the
appellant had confessed his guilt in his own village on the date of
occurrence itself. Whereas P.W.-7 Bimal Mahto had stated in his
deposition that at about 7-8 p.m. in the night appellant came to his house
and made enquiring about his mother-in-law (deceased). He further
deposed that he along with Karamchand Mahto and other inmates of the
deceased started searching her. He further deposed that in course of the
search they caught hold of the appellant and then he disclosed that he
had killed the deceased and thrown her dead body into the well. It is worth
mentioning that the house of P.W.-7 situates in village-Bishunpur. Thus,
according to P.W.-7, the appellant confessed his guilt at Bishunpur on the
date of occurrence itself at about 7-8 p.m. P.W.-9, who is the son of
deceased, had given a different story regarding the confession. He
deposed that on the date of occurrence, they went to the house of
appellant and made query about the deceased and when the appellant
rebuked them and said that deceased did not come to his house, they
returned to their village. He further deposed that in the next day in course
of search they met with the appellant in village-Bishunpur and there
villagers caught him, then he disclosed that he killed the deceased and
threw her dead body in the well of Anupa Mahto, the dead body was
recovered, thereafter, from the aforesaid well. Thus, as per this witness,
the appellant confessed his guilt on the next day of occurrence.
Therefore, from the perusal of evidence of P.W.-4, P.W.-7 and P.W.-9, I
find that the witnesses are not consistent with regard to the time of
confession as well as the place where the confession was made. It is
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worth mentioning that P.W.-4 stated that at the time of confession Duban
Mahto (informant) was also present, but surprisingly the said Duban
Mahto has not said anything regarding the extra-judicial confession of the
appellant, in his fardbeyan as well as in his deposition. In the fardbeyan
as well as in his deposition Duban Mahto (informant) only stated that on
the next day of occurrence in course of search, they found the dead body
of deceased in the well of Anupa Mahto situated in village Bishunpur. He
has no where stated that the dead body was recovered on the confession
of the appellant. In view of aforesaid discussion, I find that this
circumstance i.e. extra-judicial confession has not been proved by the
prosecution beyond the shadow of all reasonable doubt.
14. So far as the last circumstance i.e. the deceased
accompanied the appellant for bringing the box and cloths is concerned, in
my view, it is not unusual. Appellant is son-in-law of the deceased. As
noticed above, on the date of occurrence no altercation took place in
between the appellant and the deceased. Rather, in the evidence it has
come that the deceased had prepared food for the appellant. That shows
that on the date of occurrence, their relationship was cordial. It is also
clear that on the date of occurrence none of the inmates had any objection
while the deceased was going in the company of the appellant. Thus, only
on the basis of the circumstance that the appellant was seen lastly with
the deceased, it cannot be safely said that in all human probability, the
accused committed the present crime. Moreover, P.W.-7, who is resident
of village-Bishunpur, has deposed in his examination in chief itself that on
the date of occurrence at about 7-8 p.m. in the night, the appellant had
gone to his house and had said that his mother-in-law is traceless. This
shows that the appellant was also anxious on disappearance of his
mother-in-law (the deceased), which is in consonance with the normal
human behaviour. Thus, in my view only on the basis of this circumstance,
it cannot be safely held that the appellant and no other has committed
murder of the deceased.
15. The I.O. has not been examined in the instant case. P.W.-4
has stated in his cross-examination that after his confession, the
appellant, was taken to the said well and he was kept there till the arrival
of police officer. He further states that the police officer (Darogaji) arrived
at the well within one hour. Thus, according to P.W.-4, on the very date of
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occurrence, the I.O. arrived at the Place of Occurrence. P.W.-7 also
stated so in his deposition, but P.W.-9 and P.W.-11 stated that the police
officer (Darogaji) arrived at the place of occurrence on the next day and he
took out the dead body from the well. The inquest report shows that the
dead body was kept on a cot.
16. Thus, due to the non-examination of I.O., it would not be clear
as to when the dead body was taken out from the well. Thus, due to non-
examination of I.O., the defence has not been able to confront him on the
aforesaid contradiction in the evidence of prosecution witnesses and the
same has caused serious prejudice to the defence.
17. In view of the above discussion, I conclude that the
prosecution has not been able to bring home the charges leveled against
the appellant beyond the shadow of all reasonable doubt. Thus, I am
unable to uphold the impugned judgment of conviction and order of
sentence passed by court below.
18. In the result, this appeal is allowed. The impugned judgment
of conviction dated 20.12.2001 and order of sentence dated 22.12.2001
passed by Sessions Judge, Deoghar in S.T. No. 42 of 1997 are hereby set
aside. The appellant is acquitted of the charges leveled against him. It
appears that the appellant is in custody. He is directed to be released
forthwith, if not wanted in any other case.
(Prashant Kumar, J.)
(Narendra Nath Tiwari, J) (Narendra Nath Tiwari, J)
Jharkhand High Court, Ranchi
Dated 07 /12 /2009
Sunil/NAFR