Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 395 (JHR)

Khara Alias Khado Marandi v. State Of Bihar

2006-04-19

AMARESHWAR SAHAY, DABBIRU GANESHRAO PATNAIK

body2006
JUDGMENT D.G.R. Patnaik, J. 1. The appellant has challenged the judgment of conviction and sentence dated 20.11.1989 passed by the Sessions Judge, Dumka, in Sessions Case No. 165 of 1988 whereby he has been convicted for the offence under Sections 302 and 201 of the Indian penal Code and sentenced to undergo imprisonment for life. 2. Brief facts of the case registered on the basis of the first information report (FIR) is that Bijli Soren (deceased) the daughter of the informant Konka Soren PW8 was married to the appellant about three years prior to the alleged date of the occurrence. Quarrels between the husband and wife arose when the husband developed extra marital relation with another lady. In due course, the wife separated from her husband and began living at her parents house. Later, the appellant came to the house of the informant along with the village Pradhan and persuaded the informant (the father of the deceased), to send his daughter on the assurance that there would be no further quarrels between the husband and the wife since the other lady has left the house of the appellant. On being persuaded, the informant sent off his daughter, Bijli Soren along with the accused/appellant. While leaving the house, the appellant stated that he along with his wife (the deceased) will go to village Khundi for witnessing a drama and thereafter, they would proceed to his native village. A few days later, the informants wife (PW9) went to meet her daughter (deceased). She was however, surprised to learn from the mother-in-law of her daughter that neither her daughter nor her son-in-law had returned to the village. The informants wife thereafter returned to her house next day. On the same day in the afternoon at 2.30 p.m. one Lukhi Hembrom (PW14) came and informed that a dead body was lying in the Shambhudih Jungle emitting foul smell. The informants son (PW6) and co- villager accompanied PW14 to the forest where they found a dead body. The informant and his family members identified the dead body as that of his daughter Bijli Soren. The Police was thereafter informed on the same day. After registering the FIR against the appellant, the investigating officer visited the place where the dead body of the deceased was found. The informant and his family members identified the dead body as that of his daughter Bijli Soren. The Police was thereafter informed on the same day. After registering the FIR against the appellant, the investigating officer visited the place where the dead body of the deceased was found. He prepared inquest report of the dead body and seized the articles lying near the dead body which were identified by the witnesses as being the belongings of the deceased. Post mortem on the dead body of the deceased was conducted. On the basis of the materials collected in course of investigation, the investigating officer submitted charge sheet against the appellant recommending trial of the appellant for the offence under Section 302/201 IPC. 3. The appellant pleaded not guilty and took the plea that the deceased had an illicit relation with a forest guard, for which she used to visit the forest. He had also denied to have taken the deceased along with him from her fathers house. 5. Altogether 16 witnesses were examined by the prosecution at the trial, out of whom the trial court had marked PW 7 and 12 as hostile witnesses and PW2 and 13 as witnessed tendered by the prosecution for cross examination. 6. Apparently, there is no eye witness to the murder of the deceased even according to the prosecution case. Nevertheless, the trial court had placed reliance on the evidence of the informant PW8, his son PW6, his wife PW9, witnesses to the seizure of the articles of the deceased i.e. PW3 and 4, the evidence of the doctor (PW16) and the evidence of the investigating officer PW15 and arrived at the finding that there is enough circumstantial evidence to confirm the guilt of the appellant for the offence under Section 302/201 IPC. 7. The appellant has challenged the order of conviction mainly on the ground that the trial court has misdirected itself by placing implicit reliance on the testimony of the informant and his family members who being the nearest relation of the deceased, are admittedly interested witnesses. Further ground is that in absence of any direct evidence of murder, the trial court has misdirected itself to infer the guilt of the appellant solely on the basis of the circumstantial evidence of last seen. Further ground is that in absence of any direct evidence of murder, the trial court has misdirected itself to infer the guilt of the appellant solely on the basis of the circumstantial evidence of last seen. Learned Counsel for the appellant has argued that the evidence of the witnesses on the point of last seen are inconsistent and unreliable and even if it is taken into consideration, that being the solitary circumstance, no conviction could have been sustained in the absence of corroboration or additional link to point to the guilt of the appellant. 8. The point for determination is therefore whether reliance can be placed on the testimony of the parents and brother of the deceased and whether conviction can be sustained on the basis of the circumstantial evidence available on the record? Before discussing the issues, it is pertinent to mention that the death of the deceased Bijli Soren has not been disputed by the defence. Likewise, the identity of the dead body found in the jungle as being that of the deceased Bijli Soren has also not been disputed by the defence. Nevertheless, these aspects shall be dealt with while discussing the evidence on record. 9. Referring in this context to the evidence of the informant Khonka Soren PW8, I find that he has reiterated the same statement as contained in the FIR. He has claimed that his daughter Bijli Soren was married to the accused/appellant about five years prior to the alleged date of the occurrence. His son-in-law later developed illicit relation with another girl and this led to differences between the deceased and her husband, namely the appellant. The informant in course of his visit to his daughters matrimonial home, learnt about the plight of his daughter and the ill treatment meted out to her by the appellant. On being advised by the villagers, he brought his daughter to his house. He adds that subsequently in the month of Kartik, the son in law, (appellant) approached him with the village pradhan and stated that he (accused) had driven away the other girl from his house and assured that henceforth there will be no quarrel with his wife. A panchayat was convened in the village on that day (Wednesday). The informant agreed to send off his daughter to her matrimonial home. A panchayat was convened in the village on that day (Wednesday). The informant agreed to send off his daughter to her matrimonial home. Two days later, i.e. on Friday, the informant sent his daughter away along with her husband. The witness further adds that before departure, the appellant had stated that he will take his wife to witness a drama at another village and from there they will proceed directly to his village. Further evidence of the witness is that 5 days later i.e. on the following Wednesday, the informants wife (PW9) went to the house of her daughter but she did not find her there. The mother of the appellant had not stated that neither the informants daughter nor her husband had returned home. The informants wife returned home and told her husband. In the afternoon of the following day i.e. Thursday, one Lukhi PW14 came and informed about the discovery of the dead body in the Shambhudih forest. The witness along with his son and other co-villagers accompanied PW14 to the forest where they found the dead body and from clothes and articles they identified the dead body as being that of his daughter Bijli soren. He thereafter lodged report at the police station. 10. As recorded by the trial court and on going through the evidence of the informants son PW6 and the informants wife PW9, I find that these two witnesses have lent corroboration to the informants evidence on material facts namely that the deceased was married to the appellant about 5 years prior to her death and subsequently, differences between the husband and the deceased arose when the husband developed illicit relation with another girl and brought her home and this led to separation of the deceased from her husband. PWs. 6 and 9 have further lent corroboration to the fact that five days prior to the death of the deceased, the appellant had approached the informant along with the village Pradhan and had assured that he has severed his relationship with the other girl and that there will be no further quarrels with him and his wife and on such assurance and persuasion by the appellant and the villagers, the informant had sent off his daughter (the deceased), along with the appellant. The witnesses lend further corroboration to the evidence as regards the fact that five days after the deceased was sent off by her parents from their house, the informants wife (PW9) had visited the house of her daughter where she was told by the mother in law of the deceased that the couple had not returned home. On the following day, a dead body was discovered in the Shambhudih forest, which was identified as the dead body of the deceased Bijli Soren, daughter of the informant. 11. I have gone through the evidences of these three witnesses, including their testimony recorded in their respective cross-examination and I do not find any inconsistency in their depositions. 12. From the evidences of these three witnesses, the significant facts which surface are that (i) the relations between the deceased and her husband was strained on account of arrival of another lady with whom the husband had illicit relation; (ii) the strained relationship had caused separation between the deceased and her husband; (iii) the husband later on visited the house of his father in law and had persuaded him to send off his wife, namely the daughter of the informant. The daughter was thereafter sent off along with the appellant and that was the time when the deceased was last seen in the company of the appellant. Even five days thereafter, the husband did not return home along with his wife and on the sixth day, the dead body of the deceased Bijli Soren was found in the Shambhudih forest. 13. Learned Counsel for the appellant has strenuously argued that the evidence of PWs. 8, 6 and 9 cannot be relied upon since they are highly interested witnesses and also because there is no independent corroboration to their evidence. 14. I am unable to subscribe to this argument. It is not a case where the prosecution has not put its efforts to produce independent witnesses. Rather, I find that the prosecution has produced quite a few witnesses who happen to be co-villagers of the informant. For reasons best known to these witnesses, they have resiled from their previous statements made before the investigating officer recorded under Section 161 Cr. P.C and had to be declared hostile by the prosecution. 15. Rather, I find that the prosecution has produced quite a few witnesses who happen to be co-villagers of the informant. For reasons best known to these witnesses, they have resiled from their previous statements made before the investigating officer recorded under Section 161 Cr. P.C and had to be declared hostile by the prosecution. 15. There is no absolute rule that the testimony of a near relation of the victim has to be discarded as unreliable simply because they fall under the category of "interested witnesses". Rule of prudence and caution prescribes only to ensure that the testimony of the witnesses is consistent and credible. In the instant case, the parents of the deceased are the most natural witnesses who could confirm about the matrimonial relation between the deceased and her husband and about the strain in their relationship. These are the witnesses whom the appellant had approached and persuaded them to allow him to take his wife with the assurance that the relationship between the spouses would henceforth be cordial. The evidences of these witnesses do inspire confidence and the trial court has rightly placed reliance on their testimony. 16. As regards the identity of the deceased, I find from the evidence of the informant (PW8) and that of the informants son (PW6) and of the informants wife PW9 as also from the evidence of PWs 2 and 4 that they had seen the dead body and could identify the same by the clothes and bangles belonging to the deceased which were seized by the investigating officer from the place where the dead body was found. These articles were produced before the trial court and marked as material Exts. 1 to 8 on their being identified by the seizure witnesses. The dead body was brought to the hospital and identified before the medical officer PW16 who conducted post mortem examination on the same. As regards condition of the dead body observed by the investigation officer at the time of preparation of the inquest report (Ext.3) on 12.11.1987, the inquest report indicates that substantial portions of the flesh was missing from the body, particularly from the left arm and right leg and skull. The body was highly decomposed and insects were crawling over the body. 17. The body was highly decomposed and insects were crawling over the body. 17. The evidence of the doctor PW16 read with the post mortem report (Ext 5) also confirms that the dead body was that of a female, aged about 20 years and corresponding to the description of the deceased as given by the witnesses. The post mortem report read with the evidence of PW16 indicates that the dead body was highly decomposed and maggots were crawling over the body. The doctor found fracture of six lower ribs of the right side and five ribs of the left side. He had also found fracture of the mid clavicular line. These injuries in the opinion of the doctor were ante mortem injuries, which had caused shock and haemorrhage resulting in the death of the deceased. The injuries, as opined by the doctor, could have been caused by assault with lathi blows. 18. It is apparent from the above evidence that the deceased Bijli Soren suffered homicidal death on account of assault made on her. The time of death has been opined by the doctor as within ten days prior to the autopsy held on 13.11.1987. This time of death is very significant as it corresponds to the date when the deceased had left her fathers house along with her husband, the appellant, and was last seen in his company by the witnesses. The time of death of the deceased is thus yet another circumstance in addition to those which have been enumerated above. 19. The Investigating Officer has claimed that the appellant had made an extra judicial confession before the police and on the basis of the confession and on the pointing out by the accused appellant, the investigating officer had seized two pieces of burnt hard wood sticks used as the weapon of assault. On this issue, I find that there is evidence of the investigating officer and the seizure list signed by the witnesses as also by the accused appellant. The witnesses have not confirmed however that the seizure of sticks was made in their presence, or that the accused/appellant had made any extra judicial confession in their presence leading to recovery. The prosecution has not led any reliable evidence on this issue and as such, the same cannot be read in evidence as a circumstance against the appellant. 20. The witnesses have not confirmed however that the seizure of sticks was made in their presence, or that the accused/appellant had made any extra judicial confession in their presence leading to recovery. The prosecution has not led any reliable evidence on this issue and as such, the same cannot be read in evidence as a circumstance against the appellant. 20. However, another circumstance which is discernible is from the conduct of the accused himself. The evidence of witnesses confirm that the accused appellant had visited the informants house and had succeeded in persuading the informant to send the deceased along with him. He had stated before the informant and other witnesses that he would go to witness a village drama at a particular village and from there, would proceed straightway to his own native village. After leaving the house of the informant along with the deceased, the appellant did not return to his own village even till five days after the date when he had taken the deceased along with him from her fathers house. The death of the deceased had occurred, as per the evidence of the doctor PW 16, on about the same day on which the appellant had brought the deceased along with him from the house of the informant. The onus is, therefore, on the appellant to explain the entire set of events which had transpired subsequent to his departure from the house of the informant and the possible reasons for the homicidal death of the deceased. Since these are material informations within his own knowledge, it was for him to explain as to why he had not returned to his own village and remained absconding for more than five days. The defence appears to have made a feeble attempt by trying to suggest that the deceased was maintaining illicit affairs with a forest guard and used to visit the forest to meet her paramour. But no supportive evidence has been brought by the defence either to confirm or even to elaborate the said theory. No explanation has been offered by the defence as to why the appellant had remained absconding since after the date he had taken the deceased along with him from her fathers house. These are additional circumstances, which constitute a chain together with the other incriminating circumstances pointed out above. No explanation has been offered by the defence as to why the appellant had remained absconding since after the date he had taken the deceased along with him from her fathers house. These are additional circumstances, which constitute a chain together with the other incriminating circumstances pointed out above. These circumstances taken together they complete the chain to conclusively establish the guilt of the accused appellant for the offence under Section 302 of the Indian Penal Code. The trial court has elaborately discussed the evidence on record and has rightly arrived at the finding of guilt against the appellant. I find no merit in this appeal. Accordingly, this appeal is dismissed.