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2005 DIGILAW 386 (JHR)

Kamal Mahto v. State of Bihar (now Jharkhand)

2005-05-18

AMARESHWAR SAHAY

body2005
Judgment By Court. The appellants, herein, were convicted under Section 364 of the Indian Penal Code and were sentenced to undergo R.I for ten years by the First Additional Sessions .Judge, Deoghar in Sessions Case No. 46 of 1989. 2. The case of the Prosecution in brief is that the daughter of the informant, namely, Manju Devi was married to the accused Kamal Mahato. It is said that the husband of Manju Devi namely, Kamal Mahato and his brother-in-law, namely, Thako Mahato came to the informant on 30th of April, 1987 and informed him that Manju Devi was traceless since 28.4.1987 At this, the informant Maharaj Mahato, the maternal uncle of Manju Devi, went to Village-Amba, where he was informed that the accused persons had actually caused murder of her niece Manju' Devi and disposed of her dead body. The informant could not meet the accused persons as they were absconding and as such he returned. Thereafter the informant alongwith Naresh Mahato and Govind Mahato again went to village Amba and at that time they found that the accused persons had shaved their heads. The accused persons told the informant that whatever had to happen, it had already happened and, therefore, he was at liberty to do so whatever he liked. According to the informant right from the time of marriage, the accused persons were demanding bicycle but the widowed mother of the victim girl was not in a position to fulfill their demand of dowry, therefore, it was suspected that Manju Devi was done to death. 3. In order to prove the charge, the Prosecution did examine altogether ten P.Ws. out of which, P.W. 5 and P.W. 9 were tendered. P.W. 10 is a formal witness P.W. 2 Asha Devi is the mother of the victim Manju Devi. And P.W. 1 Naresh Mahato and P.W. 3 Doman Mahato are her uncles P.W. 4 Pokhan Mahato, P.W. 6 Jeeblal Mahato and P.W. 7 Raj Kumar Mahato are the co-villagers. P.W. 8 Maharaj Mahato is the maternal uncle of the victim and is the first informant. The Investigating Officer has not been examined in this case. Admittedly, there .is no eye-witness to the occurrence. 4. The whole case of the Prosecution hinges on the circumstantial evidence. In order to prove the charges, the Prosecution adduced in evidence, the following circumstantial evidence. The Investigating Officer has not been examined in this case. Admittedly, there .is no eye-witness to the occurrence. 4. The whole case of the Prosecution hinges on the circumstantial evidence. In order to prove the charges, the Prosecution adduced in evidence, the following circumstantial evidence. (i) Firstly, that the girl was traceless since 28.4.1987 but the accused persons informed the informant on 30th of April, 1987 i.e. after much delay. (ii) Secondly, that when the witnesses went to the Village-Amba after hearing the news of missing of Manju Devi, all the accused persons were missing/absconding from their house, which suggests their guilty mind. (iii) Thirdly, that when the Prosecution witnesses has gone to the Village-Amba for the second time, they found the accused persons had got their heads shaved, which was suggestive of the fact that Manju Devi was done to death and her body was disposed of by the accused persons. (iv) Fourthly, the utterance of words by the accused, Lakho Mahatwain, mother-in-law of the victim girl, that whatever had to happen had already happened was suggestive of the fact regarding the missing of the victim girl, Manju Devi and that the accused persons had full knowledge but they were not disclosing the correct facts before• the Prosecution witnesses. (v) And lastly, that the victim girl Manju Devi was always subject to harassment and torture due to non-fulfillment of demand of dowry. 5. Learned counsel for the appellants, Mrs. Rita Kumari, appearing as Amicus curiae has submitted that the conviction of the appellants for commission of the offence is absolutely bad in law as the circumstances on the basis of which the appellants were convicted, do not lead to de cisive conclusion that the alleged offence has been committed by these appellants. She further submitted that the circumstances on which, the learned trial court has relied on for convicting the appellants were not put to the accused in their examination under Section 313, Cr. PC., as such those circumstances could not have been used against them for conviction because the appellants did not get a chance to explain, therefore those circumstances must be completely excluded from consideration. The submission of the learned counsel for the appellants has got substance. PC., as such those circumstances could not have been used against them for conviction because the appellants did not get a chance to explain, therefore those circumstances must be completely excluded from consideration. The submission of the learned counsel for the appellants has got substance. The Supreme Court in the case of Sharad Birdhichand Sarda vs. The State of Maharashtra reported in [ AIR 1984 SC 1622 ] has clearly held that the circumstances, which were not put to the accused, cannot be used against them. 6. I find that those aforesaid circum- stance have been considered by the learned trial court were the basis for forming an opinion of guilt against the appellants but curiously enough, the same were not put to the accused persons while recording their statement under Section 313, Cr. P.C. and, therefore, in my view, those circumstances could not have been used against the appellants for their conviction and as such I hold that the learned trial court has committed grave error in relying on the said circumstantial evidence, which were not put to the accused persons and they had no chance to explain. 7. In view of my discussions and findings above, I hold that the Prosecution has not been able to prove the charges against the appellants beyond all reasonable doubts, therefore, the conviction and sentence passed by the trial court cannot be sustained. 8. Accordingly, this Appeal is allowed. The impugned judgment of conviction and sentence passed by the trial court is hereby set aside. The appellants are discharged from the liabilities of their bail bonds.