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2006 DIGILAW 308 (JHR)

State Of Jharkhand v. Khudu Karmkar

2006-04-03

N.DHINAKAR, RAKESH RANJAN PRASAD

body2006
JUDGMENT N. Dhinakar, C.J. 1. The appellants 1 to 6 were arrayed as A/5, A/1, A/2, A/3, A/4 and A/6 before the Sessions Court and in this judgment, they will be referred to as A/1 to A/6, in the order they were arrayed before the Sessions Judge, for the sake of convenience. 2. They were tried under Sections 302/34, 201 and 120B of the Indian Code on the allegation that between 19.4.2002 and 22.4.2002, they in pursuance of a conspiracy hatched, caused the death of Manju Kumari by inflicting injury on her body and later threw the body in a field at village Antapur Moulana Bahiyar. The learned trial judge, on the evidence adduced, both oral and documentary, while finding the 1st appellant (A/5) guilty, as charged, sentenced him to death under Section 302/34 read with Section 120B of the Indian Penal Code. He was also sentenced to seven years rigorous imprisonment under Section 201 of the Indian Penal Code. A/1, A/2, A/3, A/4 and A/6 were sentenced to imprisonment for life and each one of them was also directed to pay a fine of Rs. 5000/- and in default of payment of fine, to undergo Rigorous imprisonment for one year. A/3, A/4 and A/6 were also found guilty under Section 201 of the Indian Penal Code and sentenced to seven years rigorous imprisonment. The present appeal is against the said conviction and sentence. 3. The facts are as follows : The deceased Manju Kumari is the daughter of PW-4, Feku Saha. On 19.4.2002 the deceased asked her fathers permission to go to a Mela (Fair). PW-4 granted permission to his daughter and he went away to paddy field to irrigate his crops. He returned to his house at 6.00 p.m. and inquired his wife, Anchala Devi(PW-24) about his daughter, Manju Kumari. PW-24, Anchala Devi, informed PW-4 that their daughter did not return home. PW-4 waited for an hour for the arrival of his daughter and finding his daughter not returning home in time, went in search of her. He could not find her. He continued to search for his daughter till 22.4.2002, on which date he received information that a dead body is lying in the village Moulana Bahiyar. He went to the said village and found the dead body lying naked. He identified it to be the body of his daughter. Foul smell was found emanating. He could not find her. He continued to search for his daughter till 22.4.2002, on which date he received information that a dead body is lying in the village Moulana Bahiyar. He went to the said village and found the dead body lying naked. He identified it to be the body of his daughter. Foul smell was found emanating. Thereafter, he went to the police station and gave Ext.2, the Fardbayan to the police officer. Formal FIR was registered and investigation was taken up by the Investigating Officer (he was not examined, during trial). 4. After the investigation was taken up, inquest was conducted and the dead body was sent to the hospital for post mortem. On receipt of the dead body and the requisition, Dr. Sunil Kumar Sinha, PW-3, conducted autopsy on the dead body of Manju Kumari and found the following injuries : (I) Both the hands above the wrist joint were chopped off exposing the cut bone ends with soft tissues. (II) Loss of left feet below left ankle with exposed cut bone ends of tissues. (III) Loss of whole of the skin, subcutaneous fat and muscle over both mammary are exposing ribs and lacerated Inter costal muscle with plenty of maggots. (IV) Ruptured neck muscles on right side with neck twisted to left side. The doctor issued Ext.1, the post mortem report, with his opinion that the death is on account of shock and haemorrhage and death would have occurred about 48 hours prior to autopsy. 5. While the investigation was going on, PW-9, Deen Bandhu Saha and PW-21, Deen Dayal Saha @ Rama Saha, the brothers of the informant, PW-4, Feku Saha, informed the Investigating Officer that they had seen A/3, Dhena Tudu and A/5, Khudu Karmkar, carrying a gunny bag, followed by Mandrai Marandi, A-4 and Dhanay Marandi, A/6 and that A/3, Dhena Tudu, told them that after performing a Puja, they are going to throw the contents of the bag. While investigation was proceeding, it is the case of the prosecution that A/3, Dhena Tudu, gave a statement to PWs-2, 5, 6, 7, 11, 13, 14, 17, 19 and 20 stating that he and other accused have committed the murder of the deceased and further, according to the prosecution, the said oral statement given by A/3 was reduced into writing by PW-12, Satyajit Sarkar. 6. 6. During the course of investigation, the Investigating Officer gave a requisition, requesting the Magistrate (he was also not examined) to record the statement of accused 3, 4 and 6 under Section 164 of the Code of Criminal Procedure; but they did not give any statement, implicating themselves in the crime. 7. After the completion of investigation, final report was filed against all the accused. They were questioned under Section 313 of the Code of Criminal Procedure, on the incriminating circumstances, appearing against them, and they denied all the incriminating circumstances. 8. The learned Counsel appearing for the appellants submits that the occurrence not having been witnessed by anyone and the prosecution having chosen to prove the case against the appellants/accused on the basis of circumstantial evidence, failed to establish any of the links in the chain of circumstances, which will point out unerringly the guilt of the accused. The counsel submits that the evidence of PWs-9 and 21 cannot be believed as their evidence is artificial and that they must have been projected as witnesses at a later point of time by the prosecution. Counsel further submits that the evidence of PW-26 is of no value, since his evidence also bristles with artificiality. The learned Counsel, while attacking Ext.3, the alleged extra-judicial confession, said to have been made by Dhena Tudu, A/3, submits that all the witnesses having turned hostile, the contents of Ext.3 do not got proved and that in any event it is highly difficult to believe that A/3, Dhena Tudu, gave statement to the witnesses on 2.5.2002 implicating himself and the other accused with the crime for no apparent reason. 8. On the above contention, We have heard Mr. Sumir Prasad, learned A.P.P., appearing for the State. 9. The cause of death of Manju Kumari stands established through the evidence of PW-3, Dr. Sunil Kumar Sinha, who conducted the autopsy on the dead body of Manju Kumari and the post mortem certificate, Ext.1, issued by him. We, therefore, hold that Manju Kumari died on account of homicidal violence. 10. According to PW-4, who is the father of the deceased, Manju Kumari left the house for visiting a fair after taking his permission at about 11.30 a.m. and did not return home even by 6.00 p.m.. We, therefore, hold that Manju Kumari died on account of homicidal violence. 10. According to PW-4, who is the father of the deceased, Manju Kumari left the house for visiting a fair after taking his permission at about 11.30 a.m. and did not return home even by 6.00 p.m.. He has further deposed that he went in search of his daughter and on 22.4.2002 he was given the information that a naked body is lying in the village Moulana Bahiyar and that he went to the village, found the body and identified it to be the body of his daughter. He has further stated that he gave a complaint at the police station. The evidence of PW-4, therefore, shows that the deceased, Manju Kumari, who left the house at about 11.30 a.m. on 19.4.2002 did not return home and later her dead body was seen and identified by her father on 22.4.2002. 11. In the above background, it is for the prosecution to establish that the appellants committed the murder of the deceased, Manju Kumari, and threw the body in the village. The prosecution examined two witnesses and they are Deen Bandhu Saha @ Lakhan Saha, PW-9, and Deen Dayal Saha @ Rama Saha, PW-21. Both of them, in their evidence, claimed that on the night of 21.4.2002 while they were returning to the village, they found A/3 and A/5 carrying a gunny bag and A/4 and A/6 were also seen following them. According to the two witnesses, A/3 told them that they are carrying the gunny bag after the Puja in the house of A/5, Khudu Karmkar. 12. The prosecution by examining the above two witnesses wants the Court to infer that after the murder, the dead body of the deceased, Manju Kumari, was carried by A/3 and A/5, who were followed by A-4 and A/6 and that the two witnesses saw them. We find that we are unable to raise any such presumption against the accused on the basis of above evidence of PWs-9 and 21. We find that we are unable to raise any such presumption against the accused on the basis of above evidence of PWs-9 and 21. If PWs-9 and 21, as claimed by them, saw A/3 and A/5 carrying a gunny bag with foul smell emanating from it and that they were followed by A/4 and A/6 and further A/3 also informed them that they were carrying the gunny bag after the Puja is over in the house of A/5, then PWs-9 and 21 would have certainly mentioned the said fact to their brother, PW-4, who was searching for his daughter. PWs-9 and 21, being the brothers of PW-4, would have rushed to the house of PW-4 to inform him of the said fact, especially, when PW-4 was searching for his daughter from 20.4.2002 onwards. They did not do so. Their statements were also recorded by the Investigating Officer only on 26.4.2002. If really PWs-9 and 21 had seen as to what they have claimed to have seen in their evidence then the witnesses not only would have mentioned PW-4, but PW-4 would have also mentioned the said fact in the Fardbayan, Ext.2, given by him. The Fardbayan, Ext.2, is totally silent. We are also at a lose to understand as to what prevented the Investigating Officer (who was not examined, during the trial) from recording the statements of the above two witnesses i.e. PWs-9 and 21 before 26.4.2002, if they had seen some of the appellants carrying a gunny bag, followed by two other accused. PWs-9 and 21, even if we are to assume that they did not inform their brother, PW-4, would have certainly informed the Investigating Officer as to what they saw on the night of 21.4.2002, if they had really seen as to what they have claimed to have seen, in their evidence. The fact remains that both the witnesses did not whisper a word as to what they alleged to have seen on the night of 21.4.2002. 13. In this background, we also do not place any reliance on the evidence of PW-26, Jharil Saha, who admittedly was examined after the examination of PW-9 in court, since PW-9 in his evidence stated that PW-26 saw the dead body being thrown by the accused. 13. In this background, we also do not place any reliance on the evidence of PW-26, Jharil Saha, who admittedly was examined after the examination of PW-9 in court, since PW-9 in his evidence stated that PW-26 saw the dead body being thrown by the accused. We are unable to understand as to how PW-9 came to know that PW-26 had seen the accused throwing the dead body for him to mention his name in his evidence while he was examined in court. If PW-26 informed PW-9 of his seeing the dead body being thrown by the accused then PW-9 would have gone to the Police during the course of investigation to inform them that PW-26 is the person, who saw the appellants/accused throwing the dead body. PW-9 not having whispered a word about PW-26, seeing the dead body being thrown by the accused, came out with a version at a later point of time, in court, by saying that PW-26 is the person, who saw the accused throwing the dead body, which is not even the case of PW-9 that he was informed by PW-26 that he saw the accused throwing the dead body, when he was examined under Section 161 Cr.P.C. and it is also not the case of PW-26, while giving evidence in court, that he informed PW-9 about his seeing the accused throwing the dead body. We, therefore, do not place any reliance upon the evidence of PWs-9, 21 and 26. 14. Finally, we will take up Ext.3, the extra-judicial confession alleged to have been made by the 3rd accused, Dhena Tudu. According to the prosecution, the said statement was given to PWs-2, 5, 6, 7, 11, 13, 14, 17, 19 and 20 on 2.5.2002 and it was reduced into writing by PW-12. It is to be stated at this stage that all the witnesses, including PW-12, turned hostile. Therefore, Ext.3 cannot be put against A-3 as a statement given by him, implicating himself and the other accused with the crime. Further, we also do not place any reliance upon Ext.3, on the ground that in the said statement, Ext.3, the 3rd accused, Dhena Tudu, did not give any reason, which necessitated him to give a statement implicating himself and other accused with the crime. 15. Further, we also do not place any reliance upon Ext.3, on the ground that in the said statement, Ext.3, the 3rd accused, Dhena Tudu, did not give any reason, which necessitated him to give a statement implicating himself and other accused with the crime. 15. At this stage, we cannot but refer to the statements of Dhena Tudu, A-3, Dhanay Marandi, A-6, and Mandria Marandi, A-4, which were recorded under Section 164 Cr.P.C. by a Magistrate and marked Exts. A, A/1 and A/2 respectively. The said Exts.A, A/1 and A/2 are exculpatory in nature. In the said 164 Cr.P.C. statements, the accused have also denied that A/3 gave statement to the villagers on 2.5.2002. 16. We are of the view that extra-judicial confession, Ext.3, ought to have been prepared at a later point of time, with a view to bolster up the prosecution version. 17. On the above discussion, we reject Ext.3 as well as the evidence of PWs-9, 21 and 26. The prosecution not having established its case, on the discussion made above, we find the appellant not guilty and acquit them. The sentence imposed upon them are also set aside. The accused, who are in jail, shall be released forthwith, unless they are wanted in connection with other case(s). 18. The Reference (Death Reference No. 1 of 2006) is accordingly, answered in negative.