Research › Search › Judgment

Jharkhand High Court · body

2004 DIGILAW 318 (JHR)

Naru Thakur v. State of Jharkhand

2004-03-24

LAKSHMAN URAON, SUDHANSU JYOTI MUKHOPADHAYA

body2004
Judgment Lakshman Uraon, J.-The appellants, named above, have preferred this appeal against the judgment and order of conviction and sentence dated 25th May, 2001, passed by the learned 1st Additional Sessions Judge, Gumla, in Sessions Trial No. 241 of 1997, arising out of G.R.No. 268 of 1997, whereby and whereunder, both the appellants have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The prosecution case has arisen on the basis of the Fardbeyan (not proved) of the informant Shantu Baitha (PW 8), recorded on 20.4.1997 at 15 hours at Jhalki Garha Bujitoli by Sri Birendra Kumar, Officer-in-Chargei Palkot Police Station (not examined). On that basis formal First Information Report (not proved) was drawn up and after investigation charge against both the appellants was framed under Section 302/34 of the Indian Penal Code. The appellants denied the charges levelled against them although no defence witness was examined. 3. Madan Baitha son of Shantu Baitha on 19.4.1997 at about 6.00 a.m. had gone to Village-Nathpur in the house of his maternal uncle and Matisa along with these appellants Jubai Singh and Naro Thakur to participate in a party, which was organized by the Mousa and maternal uncle of the deceased Madan Baitha, on the occasion of amicable/partition of their ancestral property. Madan Baitha did not return home at night; who was purposely not searched, believing that he might have stayed in the house of his maternal uncle or Mousa. But in the morning of 20.4.1997 at about 11.00 a.m. Etwa Kharia (not examined) informed that Madan Baitha had been murdered whose dead body is lying at Jhalki Garha Patra. The informant went to the house of these appellants Jubai Singh and Naro Thakur to enquire about his son Madan Baitha but they were not found in their respective homes. The informant suspected that both these appellants, who had gone to Nathpur Village along with his son Madan Baitha, might have murdered his son. The prosecution in order to substantiate the charges, examined 14 witnesses. Out of them PW 1 Jugo Devi is the mother of the deceased whereas PW 2 Etwari Baitha is the Mousi and PW 3 Chcirku Baitha is the Mousa of the deceased. PW 4 Kandra Gope and PW 5 Chaman Dhobi are hostile witnesses. PW 6 is Dr. The prosecution in order to substantiate the charges, examined 14 witnesses. Out of them PW 1 Jugo Devi is the mother of the deceased whereas PW 2 Etwari Baitha is the Mousi and PW 3 Chcirku Baitha is the Mousa of the deceased. PW 4 Kandra Gope and PW 5 Chaman Dhobi are hostile witnesses. PW 6 is Dr. Ganesh Prasad, who has conducted the autopsy on the dead body of Madan Baitha and Ext. 1 is the Post Mortem Report. PW 7 Harkhu Baitha, uncle of the deceased, has signed on the Fard-beyan. PW 8 Shantu Baitha (informant) is the father of the deceased. PW 9 Govind Thakur, a formal witness, has proved the production of Farsa (Material Ext. 1). PW 10 Shiv Prasad, a boy of 10 years, while washing his buffaloes in a pond, found a Farsa, which was produced before the villagers. PW 11 Bhola Singh and PW 12 Manrakhan Prasad are the seizure list witnesses. PW 13 Parshuram Singh and PW 14 Shushant Kumar Mishra are the formal witnesses, who have proved the formal First Information Report (Ext. 3) and case diary (Ext. 4). 4. The learned 1st Additional Sessions Judge relied the circumstantial evidence that Madan Baitha went to Village Nathpur along with these appellants and participated in a feast organized by his maternal uncle and Mousa. PW 2 is the Mousi and PW 3 is the Mousa Charku Baitha, who have also deposed that deceased had gone to their house along with these appellants and at 5.00 p.m. they left the Village-Nathpur. The doctor (PW 6) has conducted the autopsy on 21.4.1997 at 10.30 a.m. and opined that the death might have occurred in between 24 to 48 hours. From the time of post-mortem examination. PW 10, a minor boy, has produced one Farsa, which was seized and seizure list was prepared in presence of the witnesses i.e. PW 12 and PW 13, the means of assault, which corroborates the injuries found by the doctor (PW 6), who conducted autopsy. Relying the circumstantial evidence, the learned 1st Additional Sessions Judge, Gumla, convicted both the appellants, as they were last seen along with the deceased and sentenced them thereunder. 5. Relying the circumstantial evidence, the learned 1st Additional Sessions Judge, Gumla, convicted both the appellants, as they were last seen along with the deceased and sentenced them thereunder. 5. Learned counsel for the appellants, assailing the impugned judgment and order of conviction and sentence, has argued that in the present case Etwa Kharia, who informed the informant that the dead body of Madan Baitha was lying at Jhalki Garha Patra Bujitoli, and the Investigation Officer have not been examined, causing great prejudice to these appellants. PW 14, a formal witness, has proved the case diary (Ext. 4), which is not a substantial piece of evidence and cannot be looked into. PW 3 Charku Baitha, Mousa of the deceased, and PW 2 Etwari Baithain Mousi of the deceased, have deposed that the deceased Madan Baitha did not take his meal in their house. On the day these appellants had helped PW 2 and PW 3 in slaughtering the he-goat, having Farsa in their hand. Farsa . was meant to slaughter the he-goat on the occasion of feast No meal or meat was cooked in the house of PW 2 and PW 3 rather share of meat was distributed amongst the guests, who took the same to their respective homes. Mama of the deceased had already predeceased, prior to the date of occurrence and hence there was no occasion of any amicable partition in between the Mousa and the maternal uncle of the deceased. None of the villagers of Nathpur has deposed that a feast was organized either by the Mousa or maternal uncle of the deceased Madan Baitha on the occasion of amicable partition of the landed property in between them. PW 1 Jugo Devi and the informant Shantu Baitha (PW 8) had no knowledge that their son Madan Baitha was invited by their Mousa and maternal uncle in a feast. PW 1 is the sister of PW 2. Even then she was not informed nor her husband PW 8 was informed regarding the amicable partition and the feast organized to celebrate the same. On this ground, it was urged that the very genesis of the alleged visit to Village Nathpur is doubtful. Farsa (Ext. 1), which was produced by PW 9 Govind Thakur, was actually produced before the I.O. by one Durga Prasad, who has signed on the seizure list (Ext. 3). On this ground, it was urged that the very genesis of the alleged visit to Village Nathpur is doubtful. Farsa (Ext. 1), which was produced by PW 9 Govind Thakur, was actually produced before the I.O. by one Durga Prasad, who has signed on the seizure list (Ext. 3). The Fard-beyan in absence of the examination of the Investigating Officer has not been proved. PW 7 Harkhu Baitha is the uncle of the deceased. Although his signature is on the Fard-beyan, that has also not been proved. In course of argument, learned counsel for the appellants has submitted that there is no eye witness of the alleged murder of Madan Baitha. The only evidence is that Madan Baitha left his house along with these appellants. The appellants were seen at Village Nathpur, who left the village Nathpur at 5.00 p.m. On the next morning on 20.4.1997 the dead body of Madan Baitha was found at Village Bujitoli Jhalki Garha Patra. Learned counsel for the appellants has submitted that in the present case, the chain of evidence is not so complete to lead any reasonable ground for the conclusion to prove the guilt of the appellants. The theory of last seen alone cannot be said to be a conclusive evidence for holding these appellants guilty for such type of offence i.e. murder. There should be something more that the mere evidence of last seen and has relied a case, reported in 1971 B.L.J.R. 641 (Dukh Haran Mian vs. State of Bihar). 6. On the other hand, the learned A.P.P. has refuted the argument of the learned counsel for the appellants and has submitted that in the case in hand, .the appellants took the deceased Madan Baitha along with them for Village-Nathpur. They were seen at Village Nathpur, as deposed by PW 2 and PW 3, who are Mousi and Mousa respectively of the deceased. They have also deposed that on the same day at 5.00 p.m. they left Village Nathpur for their respective village home, namely, Chainpur, Police Station-Palkot within the district of Gumla. The appellants on search were not found in the village in the next morning of 20.4.1997, when the informant was informed that the dead body of his son was lying at Jhalki Garha Patra at Village Bujitoli. The appellants on search were not found in the village in the next morning of 20.4.1997, when the informant was informed that the dead body of his son was lying at Jhalki Garha Patra at Village Bujitoli. On this ground, it was submitted that the chain is complete regarding leaving Village Kaimba Dumar Toli, tile village of the deceased, on 19.4.1997 at 6.00 a.m. Thereafter, they participated in the feast at Village-Nathpur and thereafter at 5.00 p.m. they left Village Nathpur for their respective villages. Madan Baitha did not return home rather was found murdered whereas these appellants absconded as they were not found in the village by the informant, Shantu Baitha (PW 8). These circumstantial evidence and the fact that these appellants were last seen along with the deceased amply connects the chain that these appellants are the assailants and none else to cause murder of Madan Baitha and has relied on a case, reported in (2003) 8 SCC 93 (Amit @ Ammu vs. State of Maharastra) and A.I.R. 2003 SC 2846 (Golakonda Venkateshwara Rao vs. State of Andhra Pradesh). It was submitted that there is evidence• of PW 1 and PW 8, parents of the deceased, that these appellants left their village on 19.4.1997 at 6.00 a.m. went to Village-Nathpur and were found in the house of PW 2 and PW 3 Etwari Baithain and Charku Baitha, where they distributed the meat of he-goat, slaughtered to celebrate the amicable partition of the landed properties in between the Mousa and maternal uncle of the deceased. They left that village Nathpur together with the deceased at 5.00 p.m. and next morning Madan Baitha was found murdered. It was submitted that these witnesses are trustworthy and reliable, which has a ring of truth in their evidence, which fully establishes that they had seen the deceased along with these appellants' going together with the deceased to Village Nathpur and departing Village-Nathpur together for their homes. The evidence of last seen can not be discarded merely on the ground that there is discrepancies in the statements of the witnesses regarding taking meal with the deceased or leaving Village-Nathpur. The evidence of last seen can not be discarded merely on the ground that there is discrepancies in the statements of the witnesses regarding taking meal with the deceased or leaving Village-Nathpur. The fact remains that PW 1 Jugo Devi and PW 8 Shantu Baitha, parents of the deceased, saw their son Madan Baitha, leaving Village Kaimbo Dumartoli and the evidence of PW 2 and PW 3 that they remained at Village-Nathpur and left at 5.00 p.m. has not been demolished and it remained unimpeached. The learned court below has considered these evidences and has rightly convicted and sentenced these appellants to undergo rigorous imprisonment for life. 7. There is no denial that in the present case there is no eye witness of the alleged occurrence. The genesis of the alleged occurrence is that the deceased left his Village-Kaimbo Dumartoli for village-Nathpur, Police Chainpur, to participate in-feast organized by his Mousa (PW 3) and maternal uncle (since dead much prior to that date) regarding amicable partition of the landed properties. PW 1 and PW 8 who are parents of the deceased were not invited nor they had any knowledge regarding amicable partition of the landed properties nor the deceased when left the village at 6.00 a.m. on 19.4.1997 inforn1ed them that he was going to Village Nathpur. There was no animosity in between the deceased and' the appellants. PW 1 has deposed that the maternal uncle of Madan had already died prior to the alleged date of occurrence. She is sister of PW 2 Etwari Baithain, wife of PW 3 Charku Baitha. She has denied the suggestion that her son Madan Baitha had developed illicit relationship with Kunnu Thakurain but it appears that there was some altercation. She has suppressed the cause of that altercation. The appellants are not the co-villagers but there was cordial relationship between the appellants and the deceased, who used to visit the homes of each other. They also used to go outside the village together as both the villagers i.e. Kaimbo and Chainpur are adjacent to each other. Madan Baitha had never informed his parents that he was going to Village Nathpur. PW 2 Etwari Baithain, sister of PW 1, stated that Madan Baitha took the meat of his share and went to eat it in the house of her brother i.e. maternal uncle of the deceased. Madan Baitha had never informed his parents that he was going to Village Nathpur. PW 2 Etwari Baithain, sister of PW 1, stated that Madan Baitha took the meat of his share and went to eat it in the house of her brother i.e. maternal uncle of the deceased. Thereafter, these appellants along with the deceased returned for their village home at 5.00 p.m. She does not know the menu of the food which the appellants and the deceased had taken. She has simply deposed that the deceased took the meat and went to take his meal in the house of her brother (maternal uncle of the deceased) As admitted by PW 1, her sister PW 2, that their brother (maternal uncle of the deceased) had already died, hence the statement that Madan Baitha went to the house of his maternal uncle and took his meal there has not been proved. Even if the maternal uncle of Madan Baitha had predeceased him, then also there must be some members in his house, who were also not examined to corroborate the amicable partition of the landed properties and feast, organized by them. PW 2 and PW 3 saw Madan Baitha going to the house of his maternal uncle for taking meal. What about these appellants is not clear as to whether they took their meal as they had also left their home village at 6.00 a.m. early in the morning and had prepared the meat by slaughtering he-goat at Nathpur. The other villagers, who took the share of meat, left for their respective homes but none of them has been examined by the prosecution. PW 4, an independent witness of village-Nathpur, has deposed that appellant Naro Thakur had Farsa in his hand, which was used in slaughtering he-goat. This is not sufficient to establish that the said Farsa is the Farsa, which was brought out of the pond by PW 10 Durga Prasad, a 12 years boy, while he was washing his buffalo in a pond, which was seized and seizure list (Ext. 3) was prepared on which PW 11 Bhola Singh and PW 12 Manrakhan Prasad signed (Exts. 3/ 1 and 3/2 respectively). The I.O. has not been examined, hence the inquest report has not been proved nor the seizure list (Ext. 3) was properly proved which was simply proved by a formal witness. 3) was prepared on which PW 11 Bhola Singh and PW 12 Manrakhan Prasad signed (Exts. 3/ 1 and 3/2 respectively). The I.O. has not been examined, hence the inquest report has not been proved nor the seizure list (Ext. 3) was properly proved which was simply proved by a formal witness. As the appellants have not denied the murder of Madan Baitha whose dead body was examined by PW 6 Dr. Ganesh Prasad on 21.4.1997 and found lacerated wound and incised wound, total four in number, ante-mortem in nature, caused by Farsa and Tangi. 1 is the Post Mortem Report. The doctor has opined that the time elapsed since death is 24 to 48 hours. He examined the dead body on 21.4.1997 at 10.30 a.m. whereas the alleged occurrence took place in between the night of 19th and 20th of April, 1997. PW 7 Harkhu Baitha, the uncle of the deceased, is also not the eye witness of the occurrence, who saw the dead body of deceased Madan Baitha and inquest report was prepared in his presence on which he signed (Ext. 2) and his signature in the seizure list regarding the seized blood stained soil is Ext. 2/1. The informant (PW 8) does not know as to whether there was any amicable. partition of the land property in between the Mausa and maternal uncle of the deceased. Neither he was invited nor he was informed about any feast organized at Nathpur. PW 9 Govind Thakur, a constable of Palkot Police Station produced Farsa from Palkot Thana Malkhana, which was neither kept under seal cover nor was recovered from the conscious possession of the appellants. The Farsa was simply found in a pond by PW 10, which could not be connected that this Farsa was the Farsa seeri in the hand of the appellants, while they were at Village-Nathpur. The Farsa was not put on Test Identification Parade. 8. When considered the circumstantial evidence in the present case, I find that the appellants, who are of Village Chainpur and the deceased who was of Village-Kaimbo Dumartoli, were good friends, having visiting terms. They also used to go outside the village together. On the alleged date of occurrence i.e. 19.4.1997 neither the informant (PW 8) nor his wife Jugo Devi (PW 1) were invited by PW 4 or Mama, maternal uncle of the deceased. They also used to go outside the village together. On the alleged date of occurrence i.e. 19.4.1997 neither the informant (PW 8) nor his wife Jugo Devi (PW 1) were invited by PW 4 or Mama, maternal uncle of the deceased. Even deceased Madan Baitha and these appellants did not inform the informant that they had been invited to take part in the feast at Village-Nathpur, organized by Mousa (PW 3) and maternal uncle of the deceased. When the maternal uncle of the deceased, as deposed by PW 1, had died much prior to the alleged date of occurrence, the question of amicable partition of the landed property in between the maternal uncle and Mousa (PW 3) seems to be doubtful. If there was a feast, then the villagers should have also attended the same but the evidence of PW 2 and PW 3 is that they were given share of meat which they took and went to their respective homes. Even deceased Madan Baitha was invited by PW 2 and PW 3 but he did not take his food in their house. On the other hand, he took his share of meat and went to the house of his maternal uncle to' take food. It is not known what food materials were served to him in. the house of maternal uncle i.e. brother of PW 2 Etwari Baithain. Both PW 2 and PW 3 had not seen the food materials, consumed by the deceased but they had simply said that the deceased left the village-Nathpur at 5.00 p.m. along with these appellants. There is no evidence that while leaving Village Nathpur, these appellants had Farsa in their hands nor PW 1 and PW 8 have deposed that while leaving Kaimbo Dumartoli the appellants- had any weapon in their hands. The recovery of Farsa from a pond is also doubtful as the I.O. has not been examined. It could not be connected that it was the same Farsa, which was seen in the hands of the appellants, which is the means of assault, resulting death of Madan Baitha. The only theory of last seen while going to Village-Nathpur and returning from Village-Nathpur is not sufficient to connect the chain that they were along with the deceased at the P.O. village Buji Toli Jhalki Garha Patra, which is hardly at a distance of 1/2 Km. away from Village- Kaimbo Dumartoli. The only theory of last seen while going to Village-Nathpur and returning from Village-Nathpur is not sufficient to connect the chain that they were along with the deceased at the P.O. village Buji Toli Jhalki Garha Patra, which is hardly at a distance of 1/2 Km. away from Village- Kaimbo Dumartoli. Village-Chainpur of the appellants is also very near to Village-Kambo Dumartoli. PW 1, mother of the deceased, has admitted that there was some difference in between her son Madan Baitha and one Sobran, brother of village girl Kunnu Thakurian (Kabutari). The defence has suggested that deceased had developed illicit relationship with Kunnu Thakurian for which Sobran, brother of Kunnu Thakurain, had picked up a quarrel and was on inimical terms with him, threatening that he would be killed. 9. In the case in hand, admittedly there is no eye witness and the prosecution case depends on the circumstantial evidence only. In dealing with the circumstantial evidence, there is always the danger that conjecture or suspicions may take the place of legal proof. In such cases, the circumstances from which the conclusion of the guilt is to be proved should, in the first instance, be fully established and any of the facts, so established, should be consistent only with the hypothesis of the guilt of the accused. There must be chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The genesis that both these appellants took the deceased to Village-Nathpur to attend a feast. organized by his Mousa and maternal uncle on the occasion of amicable partition of their landed property is also doubtful as Mama of the deceased Madan Baitha had died much prior to the alleged date of occurrence. Hence the prosecution story that in between the Mousa (PW 3) and the maternal uncle of the deceased there was an amicable partition is falsified. When Mausa is dead, as deposed by PW 1 Juga Devi, mother of the deceased, then no question of amicable partition in between the maternal uncle and Mousa of the deceased arises. Even if PW 2 and PW 3 Mousi and Mousa of the deceased invited the appellants but they had not invited PW 1 and her husband (PW 8) as also the uncle Harkhu Baitha (PW 7) of the deceased. Even if PW 2 and PW 3 Mousi and Mousa of the deceased invited the appellants but they had not invited PW 1 and her husband (PW 8) as also the uncle Harkhu Baitha (PW 7) of the deceased. They had no knowledge that there was some amicable partition and feast was organized at Nathpur. Even the deceased when left the house along with these appellants did not disclose as to where he was going but subsequently it has come into evidence that both the appellants took Madan Baitha to Nathpur to attend a party. Appellant Naro Thakur was not seen having a Farsa in his hand. At Village-Nathpur, the appellants had a Farsa only to slaughter the he-goat. They did work and distributed the meat amongst the villagers. None of the villagers has come to corroborate this evidence rather PW 4 Kandra Gope and PW 5 Chaman Dhobi of Village-Nathpur are hostile witnesses and others are formal witnesses. The deceased took his meal alone in the house of his maternal uncle. When his maternal uncle is not there, then in his absence some one of that family should have been examined as to whether the deceased has gone to his house or not. When they left the village at 5.00 p.m., it must be day hours as it was the month of April. The dead body was found at Village-Bujitoli Jhalki Garha Patra, which is hardly at a distance of 1/2 Km. away from the village of the informant Kaimbo Dumartoli. The appellants are the residents of adjacent Village-Chainpur. There was no animosity in between the deceased and these appellants rather; they were friends and were moving together outside the village. The means of assault i.e. Farsa alleged to have been recovered was not seen in the hand of appellant Naro Thakur when he left Village-Nathpur. Besides this, the Farsa, which was seized, was not proved that it was the same Farsa, which was seen in the hand of appellant Naro Thakur. 10. When considered all these evidence in detail meticulously, I find that the circumstantial evidence are not so connected to lead' only conclusion that these appellants and none else are the authors, who have murdered Madan Baitha. 10. When considered all these evidence in detail meticulously, I find that the circumstantial evidence are not so connected to lead' only conclusion that these appellants and none else are the authors, who have murdered Madan Baitha. The only circumstance that they left village-Kaimbo Dumartoli and on the next day of the alleged murder, they were not found in their village, is not the evidence to arrive at the conclusion that they are the persons responsible to cause murder of Madan Baitha. It is not their duty to explain as to who are the assailants, causing murder of Madan Baitha. The learned court below has relied the circumstantial evidence which is very weak in nature, without connecting the circumstances to lead the only hypothesis that at the time of the alleged murder or near the place where the dead body was found these appellants were seen. Simply by saying that at 5.00 p.m. on 19.4.1997 they left the Village-Nathpur along with the deceased can not be presumed that they are the assailants, as the village is not far away from the village of the informant where they had gone on foot. When considered these evidence, available on record, I find that the prosecution case is full of doubt in establishing the guilt of these appellants, which was not properly assessed by the learned court below. 11. Viewed thus, I find merit in this Criminal Appeal, which succeeds and is hereby allowed. Both the appellants are acquitted of the charges by setting aside the judgment and order of conviction and sentence dated 25th May, 2001, passed by the learned 1st Additional Sessions Judge, Gumla, in Sessions Trial No. 241 of 1997, arising to of G.R.No, 268 of 1997. As both the appellants are in custody, they are ordered to be released forthwith from the custody, if not wanted in any other case. S.J. Mukhopadhaya, J.-I agree.