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2006 DIGILAW 1183 (JHR)

Md. Israil v. State Of Jharkhand

2006-09-13

AMARESHWAR SAHAY, DHANANJAY PRASAD SINGH

body2006
JUDGMENT Amareshwar Sahay and D.P. Singh, JJ. 1. This appeal is directed against the judigment of conviction and order of sentence dated 24.7.2001 passed in Sessions, Trial No. 42/87, whereby and whereunder the learned 2nd Additional Sessions Judge, Gumla held the appellants guilty under, Section 302/34, IPC and sentenced them to serve RI for life. 2. Brief facts leading to this appeal are that the informant Madan Mohan Mishra, ASI of Bishunpur P.S. District Ranchi got information that some employees of Geological Survey Camp, organized in Bishunpur area, have caused death of a female in village Gora Pahar Toll. Sri Mishra after recording this information in the SD Entry No. 33 dated 3.6.1984, started for the place of occurrence. According to him, he learnt from the villager Gendra Asur, PW 6 that one month ago while he was ploughing his field, two male persons including an employee of Geological Survey Camp went towards the camp along with one female between 6-7 p.m. According to this witness, next morning he found a headless dead body of female lying in his field. This witness further asserted that he could identify the dead body from her dress, red petticoat and blouse. As he found the dead body being eaten by dogs, he along with other villagers decided to cover the dead body besides rivulet situated nearby. Having got this information the informant sent him along with PW 6, PW 3 Mailu Asur and PW 4 AtwaAsur to the Geological Survey Camp where they identified appellant Israfil present. According to the informant appellant Israfil confessed his guilt before these witnesses and others present in the camp. Accordingly he went to the Geological Survey Camp Unit No. 296 and arrested the appellants after making enquiry from Camp Incharge Kedar Nath Upadhyay, PW 8. He further seized one dagger with wooden bat from belongings of appellant Israfil on his confessional statement in presence of witnesses. Then informant recorded his self statement and forwarded it for registration of case to Bishunpur P.S., on the basis of which Bishunpur P.S. Case No. 18/84 dated 4.6.1984 was registered under Section 302/34, IPC against the appellants. The dead body was recovered from the rivulet and sent for post-mortem examination. The police investigated the case and finally submitted charge-sheet against both the appellants under Section 302/34, IPC. The dead body was recovered from the rivulet and sent for post-mortem examination. The police investigated the case and finally submitted charge-sheet against both the appellants under Section 302/34, IPC. The case of the appellant was committed to the Court of sessions where charges were framed against them on 21.11.1989. The appellants pleaded not guilty and claimed false prosecution. The learned trial Court after examining witnesses found and held guilty under Section 302/34, IPC and sentenced them as aforesaid. 3. The present appeal has been preferred on the ground that the trial Court has wrongly relied upon hearsay witnesses and extra judicial confession. It is further asserted that the circumstantial evidence used against the appellants that they were going with the deceased, has not been supported by any other witness. It has further been asserted that neither the date of occurrence nor the identity of the dead body has been proved beyond reasonable doubts. 4. Learned Counsel for the appellants submitted that all these circumstances have not been explained to the appellants in recording their statements under Section 313, CrPC. It is also stressed that said confessional statement has not been proved by witnesses in whose presence appellant Israfil has confessed his guilty. Therefore, mere recovery of an ordinary dagger does not show that the offence was committed by the appellants. It is also assert that the delay in lodging of FIR itself is fatal for the prosecution case. Learned Counsel for the appellants further submitted that appellants have already remained in custody for more than five years after their conviction. 5. Learned APP opposed this contention on the ground that the appellants have confessed their guilty voluntarily. 6. We have anxiously considered the submissions of the learned Counsel for the parties along with materials on record. The prosecution case depends upon the confessional statement of appellant Md. Israfil and on the statement of PW 6, Gendra Asur, who saw both the appellants going along with a lady towards the Survey Camp in the evening one month prior of his statement therefore the informant on 4.6.1984. It is asserted that when Gendra, Bhuili and Etwa Asur went to the survey camp, they could identify Md. Israfil as the person who was seen going with the lady, whose dead body was found by PW 6 next day in the morning. It is asserted that when Gendra, Bhuili and Etwa Asur went to the survey camp, they could identify Md. Israfil as the person who was seen going with the lady, whose dead body was found by PW 6 next day in the morning. Before considering the testimony of PW 6, we would like to go through the statement of PWs 3 and 4. These two witnesses have themselves asserted that according to information given by PW 6, the police and BDO got the dead body recovered from the place where they had concealed the dead body. He admitted in para 1 that Gendra has not disclosed who has murdered the lady. He was declared hostile by the prosecution. According to this witness, the dead body was burried two months before the time when it was recovered. PW 3 Etwa gave a different version when he asserted that Gendra stated that some body of the survey camp has concealed the dead body. According to him, when Gendra went in the camp he caught hold one person alleging that he has killed the lady. He denied that he has gone to the Geological Survey Camp. In the same context the prosecution tendered PW 5 Tula Asur, named by PW 6 to help in concealing the dead body. PW 1 denied having any knowledge about such incident. PW 11 is a witness on the seizure list of skeleton and proved his signature on it, vide Ext. 2/4. PW 12 Suiyo Asur is one of the participant who burried the dead body. PW 13 Suchu Asur has been tendered. The prosecution further examined two witnesses as Court witness to prove the FIR, Ext. 4 and postmortem report, Ext. 5.10 and doctor in the present case have not been examined. 7. PW 6 has supported the self statement of Madan Mohan Mishra, ASI Bishunpur P.S. In his examination in chief. However, during cross-examination this witness has admitted that after finding the dead body, he did not inform the police nor any one of his village. He further admitted vide para 4 to have identified the appellants for the first time in Court. This witness has further admitted in para 5 that police has threatened him after calling him in camp to identify the appellants. It is further asserted that he has no Information about the incident vide para 6. He further admitted vide para 4 to have identified the appellants for the first time in Court. This witness has further admitted in para 5 that police has threatened him after calling him in camp to identify the appellants. It is further asserted that he has no Information about the incident vide para 6. Therefore, the very source of information to the informant by this witness becomes doubtful. 8. So far the question of extra judicial confession Is concerned, PW 7 Loharman Baralk, Choukidar of the survey camp, has only stated that one night both the appellants have slept inside the camp and appellant Israfil has sent his brother appellant Israil to Mahua Tand in the morning at about 4 p.m. PW 8 Kedar Nath Upad-hyay, PW 9 Kartik Oraon, PW 10 G.C. Naha are other inmates of the survey camp, who were examined by the police on 3rd June, 1984. According to PW 8, in the evening of 3.6.1984 appellant Israfil has confessed that he has killed the lady and thrown her dead body after severing head. According to him the said dagger was recovered from the belonging of appellant Israfil, vide Ext. 2 series. He denied to Identify the appellants present In the Court. He admitted in cross-examination that appellant Israfil was arrested from camp B and appellant Israfil has admitted his guilt before the police also. The Incharge of camp B, G.C. Naha has been examined as PW 10, who admitted In para 2 that when he returned he could learn that some subordinate staff has committed murder and appellant Israfil has admitted, when asked about the murder, his guilt on 28.4.1984. It is also admitted by him in para 6 that in between 29.4.1984 to 3.6.1984 police was visiting the camp but it did not arrest the appellant Israfil. These facts If believed, create a pertinent question as to why the matter was not reported to the police In spite of having knowledge by responsible officers like PWs 8 and 10, FIR could not be registered and appellant. Israfil was not arrested by the police during this period. The contradictory statement of PWs 8 and 10, both responsible officers of Geological Survey Camp shows that appellant Israfil has confesses his guilt before them but none of them got the same reordered in writing. 9. Israfil was not arrested by the police during this period. The contradictory statement of PWs 8 and 10, both responsible officers of Geological Survey Camp shows that appellant Israfil has confesses his guilt before them but none of them got the same reordered in writing. 9. In the facts and circumstances stated above, where offence is said to have been committed in the last week of April, 1984 within the knowledge of PWs 6, 8 and 10 as well as other witnesses but no case was instituted by the police. It also appears that after more than six weeks a dead body Is said to have been recovered from a lonely place and on statement of PW 6 the appellants were arrested. The manner in which the case was instituted after more than six weeks and confessional statement, if any not being recorded In writing, creates reasonable doubts on the prosecution case. The alleged severance of head of dead body with a dagger said to be recovered from the possession of appellant Israfil also creates reasonable doubts because a full grown lady could not be killed and her head could be severed with the help of a dagger said to be 4 in length. These facts have been relied upon by the trial Court in absence of 10 and the doctor and learned lower Court having relied upon hearsay statement of PWs 3, 4 and 6, has convicted the appellants. As discussed above, we find that the changing version of PWs 6, 8 and 10 and uncorroborated statements of PWs 3, 4, 9, 11, 12 and 13, it is unsafe to hold the appellants guilty under Section 302/34, IPC. 10. In the result, we find and hold that the present appeal has got merit, which is accordingly allowed. The order of conviction and sentence passed by the learned Court below in Sessions Trial No. 42/87 is hereby set aside. Since the appellants are in jail, they are directed to be released forthwith, if not wanted in any other case.