{"id":53818,"date":"2009-12-07T00:00:00","date_gmt":"2009-12-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/puri-mahto-puri-yadav-vs-state-of-jharkhand-on-7-december-2009"},"modified":"2015-06-22T01:34:23","modified_gmt":"2015-06-21T20:04:23","slug":"puri-mahto-puri-yadav-vs-state-of-jharkhand-on-7-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/puri-mahto-puri-yadav-vs-state-of-jharkhand-on-7-december-2009","title":{"rendered":"Puri Mahto @ Puri Yadav vs State Of Jharkhand on 7 December, 2009"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Puri Mahto @ Puri Yadav vs State Of Jharkhand on 7 December, 2009<\/div>\n
                                        1\n\n\n\n                       CRIMINAL APPEAL (DB) No. 38 of 2002\n                                    ----\n\n               Against the impugned judgment of conviction and order of sentence\n         dated 20.12.2001 and 22.12.2001 respectively passed in S.T. No. 42 of\n         1997 by Shri Mahesh Pd. Tiwari, Sessions Judge, Deoghar.\n                                        ----\n         Puri Mahto @ Puri Yadav                     ....   ....    Appellant\n                                  Versus\n         The State of Jharkhand                      ....   ....    Respondent\n                                         ....\n         For the Appellant : Mr. Hemant Kumar Shikharwar, Advocate.\n         For the State     : Mr. T. N. Verma, A.P.P.\n                                        ....\n\n                                  PRESENT\n\n         THE HON'BLE MR. JUSTICE NARENDRA NATH TIWARI\n            THE HON'BLE MR. JUSTICE PRASHANT KUMAR\n                                        ....\n\n              C.A.V. ON: 10.11.2009             Delivered On     07\/12\/2009\n\n                                        ....\nPrashant Kumar, J: This appeal is directed against the judgment of conviction\n         dated 20.12.2001 and order of sentence dated 22.12.2001 passed by\n         Sessions Judge, Deoghar in S.T. No. 42 of 1997 whereby and\n         whereunder the appellant has been convicted under section 302 and 201\n         of the IPC and sentenced to undergo imprisonment for life for the offence\n         under section 302 of the IPC and rigorous imprisonment for two years for\n         the offence under section 201 of the IPC.\n\n         2.            The case of prosecution in brief as per the fardbeyan of\n         Duban Mahto (P.W. 11) is that his daughter Shosho Devi married to the\n         appellant 8-9 years ago from the date of occurrence. It is further stated\n         that informant's daughter had come to her parental house in the month of\n         Bhado and at that time she was pregnant and very weak. It is further\n         stated that the appellant frequently used to come to his house for taking\n         his wife, but informant's wife Alwa Devi (deceased) refused to send her\n         daughter because she was pregnant and weak. It is further alleged that\n         because of that the appellant and his family members became angry. On\n         13.11.1996<\/pre>\n
 at about 12 p.m., the appellant came to his house and told the
\n         deceased that as he is going to Bombay for earning and will return after
\n         four months, thus, she should accompany him for bringing the box and
\n                                   2<\/span><\/p>\n
cloths of her daughter from his house. It is alleged that on being asked by
\nthe appellant, deceased accompanied him and went to his village for
\nbringing the said box and cloths at about 4 p.m.      It is then stated that
\nwhen she did not return till the evening, the informant, his son Madan
\nYadav, nephew Basudeo Yadav, co-villager Bithal Yadav and others
\nstarted searching her. It is further alleged that when they went to the
\nhouse of appellant situated in village-Kusumdih at about 7-8 p.m. to
\nenquire about her, the appellant, his father and brothers told the informant
\nthat his wife had not come. They showed their ignorance regarding her
\nwhereabouts. It is further stated that thereafter informant alongwith others
\nreturned and started searching the deceased in wells and ponds of the
\nvillage and in course of their search, they found her dead body in the well
\nof Anupa Mahto of village-Bishunpur.       Thereafter, they informed the
\npolice. It is stated that on arrival of police, the dead body was taken out
\nfrom the well. They found a cut injury on the middle portion of the head of
\ndeceased. Thereafter, the statement of informant was recorded.\n<\/p>\n
3.          On the basis of the aforesaid fardbeyan, Mohanpur P.S. Case
\nNo. 217 of 1996 dated 14.11.1996 was registered under sections 302 and
\n201\/34 of the IPC. The police took up investigation and after completing
\nthe investigation, submitted charge sheet against the appellant as well as
\nagainst Benga Mahto, Tilak Mahto and Babulal Mahto under sections 302,
\n120B and 201 of the IPC. It appears that learned C.J.M, Deoghar took
\ncognizance of the offence and thereafter committed the case to the court
\nof Sessions as the offence under section 302 of the IPC is exclusively
\ntriable by a court of Sessions.\n<\/p>\n
4.           After commitment, the charges were framed against the
\nappellant and other accused persons under sections 302, 120B and 201
\nof the IPC. The charges were explained to the accused persons to which
\nthey pleaded not guilty and claimed to be tried. The prosecution examined
\naltogether 13 witnesses in support of its case. The statements of appellant
\nand other accused persons were recorded by the learned court below
\nunder section 313 of the Cr.P.C., in which their defence was of total
\ndenial. Learned court below considered the evidences available on record
\nand acquitted co-accused Benga Mahto, Tilak Mahto and Babulal Mahto
\nas no sufficient evidence was found against them. However, learned court
\nbelow found sufficient evidence against the appellant and came to the
\n                                 3<\/span><\/p>\n
conclusion that the prosecution has been able to prove the guilt of the
\nappellant beyond shadow of all reasonable doubt. The appellant has been
\nthus, convicted and sentenced as stated above. The present appeal has
\nbeen filed by the appellant challenging his conviction.\n<\/p>\n
5.           Assailing the judgment of the trial court, learned counsel for
\nthe appellant submitted that there is no eye witness of the occurrence.
\nThe entire case is based on circumstantial evidence.            It is further
\nsubmitted that learned court below accepted the version of prosecution
\nwitnesses with regard to alleged extra-judicial confession made by the
\nappellant. It is submitted that there is vital contradictions in the statement
\nof prosecution witnesses on the time and place where the confession had
\nbeen made. It is further submitted that even the informant who was
\npresent along with P.W.-4, P.W.-7 and P.W.-9 had not stated anything
\nregarding the extra-judicial confession either in his fardbeyan or in his
\ndeposition in court. Accordingly, it is submitted that the court below had
\nwrongly accepted the statement of prosecution witnesses with respect to
\nextra-judicial confession. It is then submitted that learned court below had
\nconsidered the evidence of P.W.-9 to the extent that this appellant had
\nbecome angry on the deceased’s refusal of sending her daughter with
\nhim. It is submitted that the said evidence has been treated as a motive
\nfor the commission of present crime. The appellant, however, was not
\ngiven any opportunity to explain the said evidence in his examination
\nunder Section 313 Cr.P.C., though the same has been relied upon by
\nlearned court below. The I.O. has not been examined in the case. Non-
\nexamination of the I.O. has caused serious prejudice to the appellant. The
\nsame is fatal for the case of prosecution. Accordingly, it is submitted that
\nthe impugned judgment of the court below cannot be sustained.\n<\/p>\n
6.           On the other hand, learned Additional P.P. submits that
\nthough there is no eye witness to the occurrence, the circumstances
\navailable against the appellant are conclusive. It can be safely inferred
\nthat the appellant and none else had committed the present crime. It is
\nsubmitted that almost all the prosecution witnesses of fact stated that the
\ndeceased had gone with the appellant for bringing box and cloths of her
\ndaughter from the appellant’s house. The deceased did not return and
\nthereafter, her dead body was recovered from a well.                 Another
\ncircumstance is the extra-judicial confession of this appellant, leading to
\n                                4<\/span><\/p>\n
recovery of the dead body of the deceased. It is further submitted that the
\nappellant had motive to kill the deceased because he was not allowed to
\nbring his wife by the deceased.      Accordingly, it is submitted that the
\nlearned court below had rightly convicted and sentenced the appellant,
\nand the impugned judgment requires no interference by this Court.\n<\/p>\n
7.           Having heard the submission, I have critically examined the
\nevidences available on record. P.W. 5, Dr. Jugal Kishore Choudhary, is
\nthe doctor, who held autopsy on the dead body of deceased on
\n15.11.1996 at 9:30 a.m. and found following ante-mortem injury –\n<\/p>\n
             One lacerated wound 2 \u00bd” x \u00be” x bone deep over centre of
\nskull \u00bd” away from midline towards right side and there was blood clots
\npresent in the wound.\n<\/p>\n
             On dissection of head and neck, the doctor had found
\npresence of haemotoma below the skull over centre and right parietal
\nregion of skull. He also found fracture of parietal bone. The doctor further
\nfound blood in the skull cavity. In the opinion of doctor, the death of the
\ndeceased has been caused due to hemorrhage and shock as a result of
\ninjury on the skull.\n<\/p>\n
             From perusal of cross-examination of P.W.-5, I find that the
\naforesaid finding given by the doctor has not been challenged by the
\ndefence. Thus, the prosecution has been able to prove that the deceased
\ndied because of aforesaid injury.\n<\/p>\n
8.           Now, the next question arose for determination in this case is
\nwhether the present appellant had any hand in the commission of murder
\nof the deceased? This brings me to consider other evidences available on
\nrecord. In the instant case, as noticed above, apart from doctor (P.W.-5),
\nother 12 (twelve) witnesses were examined by the prosecution:\n<\/p>\n
             P.W.-1, Basudeo Yadav, is a witness of fact but from the
\nrecord, it appears that he has not been produced by the prosecution for
\nhis full cross-examination. His evidence has been excluded by learned
\ncourt below from the arena of consideration; P.W.-2, Mohan Mandal, has
\nbeen declared hostile; P.W.-3, Gobardhan Mahto and P.W.-10, Kailash
\nYadav, are witnesses of inquest.     They have not stated anything with
\nregard to the occurrence; P.W.-6, Lilu Mahto and P.W.-8, Karamchand
\nMahto, have been tendered for cross-examination. They have also not
\nstated anything with regard to the occurrence; P.W.-13, Baldeo Rai, is an
\n                                        5<\/span><\/p>\n
advocate clerk, who has proved the inquest report, fardbeyan and F.I.R.;
\nP.W.-4, Bithal Yadav, P.W.-7, Bimal Mahto, P.W.-9, Madan Yadav (son of
\ninformant), P.W.-11, Duban Mahto (informant) and P.W.-12, Shosho Devi,
\nare the witnesses of fact.\n<\/p>\n
9.           From the perusal of evidence of aforesaid witnesses of fact, it
\nis clear that none had seen the occurrence from their own eyes. The entire
\ncase of prosecution is based on circumstantial evidence.\n<\/p>\n
10.          It is well settled that for convicting an accused in a case of
\ncircumstantial evidence, the prosecution is required to fulfill the following
\ncondition:\n<\/p>\n
                   (i)       The circumstances from which the conclusion of
\n                             guilt is to be drawn should be fully established.\n<\/p>\n
                   (ii)      The fact so established should be consistent
\n                             only with the hypothesis of guilt of the accused,
\n                             that is to say, they should not be explainable on
\n                             any other hypothesis except that the accused is
\n                             guilty.\n<\/p>\n
                   (iii)     There must be a chain of evidence so complete
\n                             as not to leave any reasonable ground for the
\n                             conclusion consistent with the innocence of the
\n                             accused and must show that in all human
\n                             probability, the act must have been done by the
\n                             accused.\n<\/p>\n
11.          In the instant case, the prosecution had tried to prove the guilt
\nof the accused on the basis of following circumstances:\n<\/p>\n
             (a)   That the appellant was angry with the deceased as she
\n                   refused to send her daughter (wife of appellant)
\n                   because she was pregnant and weak. Thus, the
\n                   appellant has motive to kill the deceased.\n<\/p><\/blockquote>\n
             (b)   The appellant has made extra-judicial confession and
\n                   on the basis of said confession the dead body of the
\n                   deceased was recovered from a well.\n<\/p><\/blockquote>\n
             (c)   The deceased had been last seen alive with the
\n                   appellant as she accompanied him to his village for
\n                   bringing the box and cloths of her daughter, thereafter
\n                   her dead body was recovered.\n<\/p><\/blockquote>\n
                                 6<\/span><\/p>\n
12.          So far as the first circumstance is concerned, the only
\nevidence on record is the evidence of P.W.-9 Madan Yadav, who is the
\nson of the deceased. He deposed that after karma festival, the appellant
\ncame to his house for taking Shosho Devi but her mother (deceased)
\nrefused to send her with the appellant because she was pregnant, which
\ncauses annoyance to the appellant and he returned to his house. This
\npart of the evidence of P.W.-9 does not find any support from P.W.-11,
\ninformant and P.W.-12, Shosho Devi. They have not stated anything that
\nbecause the deceased refused to send Shosho Devi with the appellant,
\nthe appellant become angry. Moreover, from the perusal of evidence of
\nP.W.-9, it appears that on the date of occurrence, the appellant came to
\ntheir house (in-laws house of appellant), but on that day there was no
\naltercation in between the deceased and the appellant. Rather, the
\nevidence available on record shows that the appellant reached to his in-
\nlaws house at 12 hours in the noon and returned from there at 4:00 p.m.
\nP.W.-12 specifically stated that on the date of occurrence, the deceased
\nprepared food for appellant (Puri Mahto). This shows that on the date of
\noccurrence, the relation between the appellant and the deceased was
\ncordial. Thus, in my view, the evidence of P.W.-9 that once upon a time
\nbefore the occurrence, the accused became angry as the deceased
\nrefused to send his wife, cannot be treated as a motive for committing
\nsuch a serious crime.\n<\/p>\n
             In this respect, it is worth mentioning that learned court below
\nconsidered this circumstance as a motive for convicting the appellant.
\nFrom perusal of statement of the appellant under Section 313 Cr.P.C., I
\nfind that learned court below had not put any question with respect to said
\ncircumstance. The appellant, as such, has not been given any opportunity
\nto explain the same. It is well settled that while examining an accused
\nunder Section 313 Cr.P.C., it is imperative upon the court to give
\nopportunity to the accused to explain all the circumstances on the basis of
\nwhich court is going to convict him and failure of the court in doing so is
\nsufficient to set aside the judgment in question. As, in the instant case, the
\nappellant has not been given any opportunity to explain the circumstance
\nregarding motive, therefore, in my view, learned court below committed
\nserious illegality in relying on the said circumstance as a basis of his
\n                                7<\/span><\/p>\n
finding and holding the appellant guilty of committing murder of Shosho
\nDevi.\n<\/p>\n
13.         Now, coming to the second circumstance i.e. extra-judicial
\nconfession, I considered the evidence of P.W.-4, P.W.-7 and P.W.-9,
\nwhose testimonies have been referred to and relied upon by learned trial
\ncourt. P.W.-4 Bithal Yadav stated that on the date of occurrence, they
\nwent to the house of the appellant and to enquire about the deceased.
\nThe appellant and his family members abused them and told that
\ndeceased did not come to their house, they caught hold of the appellant,
\nand the appellant, thereafter, disclosed that he killed the deceased and
\nthrew her dead body into a well. During the cross-examination, he stated
\nthat they went to the house of the appellant at 7:00 p.m. in the night and
\nthey talked to him outside his house.     Thus, according to P.W.-4, the
\nappellant had confessed his guilt in his own village on the date of
\noccurrence itself.   Whereas P.W.-7 Bimal Mahto had stated in his
\ndeposition that at about 7-8 p.m. in the night appellant came to his house
\nand made enquiring about his mother-in-law (deceased).          He further
\ndeposed that he along with Karamchand Mahto and other inmates of the
\ndeceased started searching her. He further deposed that in course of the
\nsearch they caught hold of the appellant and then he disclosed that he
\nhad killed the deceased and thrown her dead body into the well. It is worth
\nmentioning that the house of P.W.-7 situates in village-Bishunpur. Thus,
\naccording to P.W.-7, the appellant confessed his guilt at Bishunpur on the
\ndate of occurrence itself at about 7-8 p.m. P.W.-9, who is the son of
\ndeceased, had given a different story regarding the confession. He
\ndeposed that on the date of occurrence, they went to the house of
\nappellant and made query about the deceased and when the appellant
\nrebuked them and said that deceased did not come to his house, they
\nreturned to their village. He further deposed that in the next day in course
\nof search they met with the appellant in village-Bishunpur and there
\nvillagers caught him, then he disclosed that he killed the deceased and
\nthrew her dead body in the well of Anupa Mahto, the dead body was
\nrecovered, thereafter, from the aforesaid well. Thus, as per this witness,
\nthe appellant confessed his guilt on the next day of occurrence.
\nTherefore, from the perusal of evidence of P.W.-4, P.W.-7 and P.W.-9, I
\nfind that the witnesses are not consistent with regard to the time of
\nconfession as well as the place where the confession was made. It is
\n                                    8<\/span><\/p>\n
worth mentioning that P.W.-4 stated that at the time of confession Duban
\nMahto (informant) was also present, but surprisingly the said Duban
\nMahto has not said anything regarding the extra-judicial confession of the
\nappellant, in his fardbeyan as well as in his deposition. In the fardbeyan
\nas well as in his deposition Duban Mahto (informant) only stated that on
\nthe next day of occurrence in course of search, they found the dead body
\nof deceased in the well of Anupa Mahto situated in village Bishunpur.          He
\nhas no where stated that the dead body was recovered on the confession
\nof the appellant. In view of aforesaid discussion, I find that this
\ncircumstance i.e. extra-judicial confession has not been proved by the
\nprosecution beyond the shadow of all reasonable doubt.\n<\/p>\n
14.          So   far   as   the       last   circumstance   i.e.   the   deceased
\naccompanied the appellant for bringing the box and cloths is concerned, in
\nmy view, it is not unusual. Appellant is son-in-law of the deceased. As
\nnoticed above, on the date of occurrence no altercation took place in
\nbetween the appellant and the deceased. Rather, in the evidence it has
\ncome that the deceased had prepared food for the appellant. That shows
\nthat on the date of occurrence, their relationship was cordial. It is also
\nclear that on the date of occurrence none of the inmates had any objection
\nwhile the deceased was going in the company of the appellant. Thus, only
\non the basis of the circumstance that the appellant was seen lastly with
\nthe deceased, it cannot be safely said that in all human probability, the
\naccused committed the present crime. Moreover, P.W.-7, who is resident
\nof village-Bishunpur, has deposed in his examination in chief itself that on
\nthe date of occurrence at about 7-8 p.m. in the night, the appellant had
\ngone to his house and had said that his mother-in-law is traceless. This
\nshows that the appellant was also anxious on disappearance of his
\nmother-in-law (the deceased), which is in consonance with the normal
\nhuman behaviour. Thus, in my view only on the basis of this circumstance,
\nit cannot be safely held that the appellant and no other has committed
\nmurder of the deceased.\n<\/p>\n
15.          The I.O. has not been examined in the instant case. P.W.-4
\nhas stated in his cross-examination that after his confession, the
\nappellant, was taken to the said well and he was kept there till the arrival
\nof police officer. He further states that the police officer (Darogaji) arrived
\nat the well within one hour. Thus, according to P.W.-4, on the very date of
\n                                       9<\/span><\/p>\n
      occurrence, the I.O. arrived at the Place of Occurrence.        P.W.-7 also
\n      stated so in his deposition, but P.W.-9 and P.W.-11 stated that the police
\n      officer (Darogaji) arrived at the place of occurrence on the next day and he
\n      took out the dead body from the well. The inquest report shows that the
\n      dead body was kept on a cot.\n<\/p>\n
      16.          Thus, due to the non-examination of I.O., it would not be clear
\n      as to when the dead body was taken out from the well. Thus, due to non-
\n      examination of I.O., the defence has not been able to confront him on the
\n      aforesaid contradiction in the evidence of prosecution witnesses and the
\n      same has caused serious prejudice to the defence.\n<\/p>\n
      17.          In view of the above discussion, I conclude that the
\n      prosecution has not been able to bring home the charges leveled against
\n      the appellant beyond the shadow of all reasonable doubt. Thus, I am
\n      unable to uphold the impugned judgment of conviction and order of
\n      sentence passed by court below.\n<\/p>\n
      18.          In the result, this appeal is allowed. The impugned judgment
\n      of conviction dated 20.12.2001 and order of sentence dated 22.12.2001
\n      passed by Sessions Judge, Deoghar in S.T. No. 42 of 1997 are hereby set
\n      aside. The appellant is acquitted of the charges leveled against him. It
\n      appears that the appellant is in custody. He is directed to be released
\n      forthwith, if not wanted in any other case.\n<\/p>\n
                                                         (Prashant Kumar, J.)<\/p>\n
      (Narendra Nath Tiwari, J)                     (Narendra Nath Tiwari, J)<\/p>\n
Jharkhand High Court, Ranchi
\nDated 07 \/12 \/2009
\nSunil\/NAFR\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Puri Mahto @ Puri Yadav vs State Of Jharkhand on 7 December, 2009 1 CRIMINAL APPEAL (DB) No. 38 of 2002 —- 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-53818","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nPuri Mahto @ Puri Yadav vs State Of Jharkhand on 7 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/puri-mahto-puri-yadav-vs-state-of-jharkhand-on-7-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Puri Mahto @ Puri Yadav vs State Of Jharkhand on 7 December, 2009 - 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