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2006 DIGILAW 53 (JHR)

State Of Jharkhand v. Lal Singh Mati Soy

2006-01-19

M.Y.EQBAL, N.DHINAKAR

body2006
ORDER 1. Both the criminal appeals are by the same appellant, Lal Singh Mati Soy. Criminal Appeal No. 945 of 2004 has been preferred by him from jail. The appellant was tried along with four other accused who were arrayed as accused Nos. 2 to 5 before the Additional Sessions Judge, Fast Track Court, Seratkela who faced charges under Sections 376(2)(g), 302, 201/34 of the Indian Penal Code. The appellant was also charged under Section 366, IPC. The trial court, finding the other accused not guilty, acquitted them of the charges and convicted this appellant alone for the offence under Sections 376(2)(g), 302 and 366, IPC and he was sentenced to death. 2. According to the prosecution, the allegation against the appellant and the other accused who were arrayed as accused Nos. 2 to 5 in the trial Court, is that on 16.5.2003 Lal Singh Mati Soy, who is the appellant in both the appeals, took away Surumai Godsora, the daughter of PW 5 and later she was gang raped and murdered. 3. The trial Court, on the evidence adduced, while acquitting the other accused, found the appellant alone guilty under Section 366, 376(2)(g) and 302 IPC. On being found guilty the appellant was sentenced to eight years RI under Section 366 IPC and also to pay a fine of Rs. 10,000/- for the offence under Section 376(2)(g) IPC and for the offence under Section 302, IPC he was sentenced to death. He was also sentenced to seven years RI and to pay a fine of Rs. 10.000/- under Section 201, IPC. In default of payment of fine, sentence of three years simple imprisonment under each count was also imposed upon the appellant by the trial Court. 4. Aggrieved by the aforesaid judgment of conviction and order of sentence, the above two appeals have been filed and Death Reference No. 7/2003 is by way of reference by the trial Court seeking confirmation of the death sentence at the hands of this Court. As the two appeals and the death reference arise out of a common Sessions Trial, we are disposing them by passing the following common judgment. 5. PW 5 Balbhadra Godsara, is the father of the deceased Surumai Godsora. PW 1, Mansi Godsora is the younger sister of the deceased. The appellant and the prosecution witnesses including the deceased were residing at village pathanmara. 5. PW 5 Balbhadra Godsara, is the father of the deceased Surumai Godsora. PW 1, Mansi Godsora is the younger sister of the deceased. The appellant and the prosecution witnesses including the deceased were residing at village pathanmara. According to the prosecution, on 16.5.2003 the deceased Surumai Godsora alongwith Mansi Godsora (PW 1) was out of house and later was seen by PW 1 near a hand pump talking with the appellant, the deceased informed PW 1 that she was going to marry the appellant. Thereafter, she left along with the appellant. PW 1 then returned home and informed her father PW 5 about the matter. As it is the custom in the community of PW 5 for the girls to marry a boy of their choice. PW 5 went to the house of the appellant on the next day but did not find the appellant. Later, on 19.5,2003, he once again went to the house of the appellant but again could not find her. When he was returning from the house of the appellant at about 2 p.m., he saw a crowd in the field of Ram Rai. PW 5 proceeded to that place and found a dead body of a girl and identified the body as the body of his daughter from the clothes, chappeds and other articles which were lying nearby. Information was lodged at the Police Station by PW 1 which is Ext. 5, the Fardbeyan, on the basis of which formal FIR was recorded. PW 7, on taking up investigation of the crime, proceeded to the scene of occurrence, prepared seizure list. Ext. 7, and conducted inquest during which the witnesses were examined. Ext. 6 is the inquest report. After inquest the body was sent to the hospital with a requisition requesting the doctor to conduct autopsy. 6. On receipt of the requisition, PW 6 the Medical Officer conducted autopsy on the dead body of the deceased. He also noticed right lower limbs, chest burn and the breast chopped off. The doctor issued Ext. 3, the postmortem certificate. In his opinion, the deceased could have died on account of the injuries suffered by her and that the burnt injury found on the dead body was postmortem in nature. 7. He also noticed right lower limbs, chest burn and the breast chopped off. The doctor issued Ext. 3, the postmortem certificate. In his opinion, the deceased could have died on account of the injuries suffered by her and that the burnt injury found on the dead body was postmortem in nature. 7. PW 7 continuing the investigation, arrested Soma Besra and Jai Singh Besra and later, after the completion of the investigation filed final report against the appellant and the other accused. The appellant was questioned under Section 313, CrPC. He denied his complicity in the crime. 8. Learned counsel appearing for the appellant submits that the trial Judge having given a finding that there is not evidence of going rape and the prosecution not having established the link in the chain of the circumstances against the appellant, has committed an error in convicting the appellant on the basis of the statement given by two co-accused by the trial Court. On the above contention, we have heard Mr. I.N. Gupta, learned A.P.P. appearing on behalf of the State. 9. The case of the prosecution that the deceased Surumai Godsora died on account of homicidal violence, stands established through the evidence of the doctor, PW 6, who conducted autopsy. He has stated that at the time of postmortem he found the body to be decomposed and that the girl must have been subjected to intercourse by several persons. He has also stated that he death could have been on account of the injuries suffered by her and that the burn injury is postmortem in nature. We have, therefore, no difficulty in coming to a conclusion that Surumai Godsora died on account of homicidal violence. 10. The case of the prosecution is that the appellant took away the deceased Surmai Godsora and after joining with the other accused committed gang rape and later attempted to screen the offence by burning her body. We have already found that the trial court had given a finding that accused Nos. 2 to 5 in the Sessions Case were acquitted by the Trial Judge and that the Trial Judge has also given a finding that here is absolutely no material to indicate that the girl was subjected of gang rape. As the State has not preferred any appeal against the said acquittal, the same had become final. 11. 2 to 5 in the Sessions Case were acquitted by the Trial Judge and that the Trial Judge has also given a finding that here is absolutely no material to indicate that the girl was subjected of gang rape. As the State has not preferred any appeal against the said acquittal, the same had become final. 11. The prosecution, in order to establish the case against the appellant that he committed murder of the deceased Surumai Godsora, relied upon circumstantial evidence. It is needless to mention at this stage that if the prosecution wants to establish the case against the accused on the basis of circumstantial evidence then it must establish all the links in the chain of circumstances. Even if one of the links in the chain of circumstances is missing, then the accused is entitled for acquittal. The Supreme Court in the case of Deonandan Mishra v. State of Bihar , has observed that where there is no eye witness to the murder and the case against the accused depends entirely on circumstantial evidence, the standard of proof required to convict the accused on such evidence is that the circumstances relied upon must be fully established and the chain of evidence furnished by these circumstances should so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. 12. When we keep in mind the above settled principle of law as regards circumstantial evidence and when we look at the evidence led by the prosecution in the present case, we find that the prosecution has miserably failed to establish the circumstances forming the complete chain so as to connect the appellant with the crime who was sentenced to death by the trial Court. 13. The prosecution examined PWs 1 to 5, the younger sister and father of the deceased respectively to show that the deceased left the house on 16.5.2003 and later was seen of the hand pump talking with the appellant and that she informed PW 1 that she was going to marry the appellant. 13. The prosecution examined PWs 1 to 5, the younger sister and father of the deceased respectively to show that the deceased left the house on 16.5.2003 and later was seen of the hand pump talking with the appellant and that she informed PW 1 that she was going to marry the appellant. It is the evidence of PW 5 that on getting information that his daughter has left the house after informing PW 1 that she is going to marry the appellant, he went to the house of the appellant to see his daughter, since according to him, it is permissible in his community for any girl to choose a boy of her choice to marry and that according to him when he went to the house of the appellant he did not find her. It is the further evidence of PW 5 that on 19.5.2003 he went to the house of the appellant but not finding the deceased there, he was returning to his house and on the way he saw a gathering where he went and saw a dead body of a girl in the field which he identified it to be that of his daughter from the clothes, chappals and other articles which were found near the dead body. The evidence of P Ws 1 and 5, which we have briefly .extracted above, if accepted, will only go to show that the deceased was seen talking with the appellant at about 7 p.m. on 16.5.2003 and that she was intending to marry the appellant. This is, in nut shell, the evidences of P Ws 1 and 5 and nothing more. According to the prosecution, the complaint was lodged by P W 1 .with the police on 19.5.2003. 14. Apart from above evidence that the deceased was intending to marry the appellant, there is no other circumstance connecting the appellant with the crime. In fact, as we have already noted above, the trial Court has not only acquitted the other accused persons who were arrayed as accused Nos. 2 to 5 before him, but also gave a finding that there could not have been any gang rape. In fact, as we have already noted above, the trial Court has not only acquitted the other accused persons who were arrayed as accused Nos. 2 to 5 before him, but also gave a finding that there could not have been any gang rape. The trial Court found the appellant guilty merely on the statement of the two other co-accused alleged to have been given by them to the police, who were acquitted by the trial Court by observing that the prosecution did not take steps to bring the statement of those two accused made to the police officer on record. We are unable to understand as to how the statement of co-accused made before the police officer can be made admissible in evidence and how the said evidence could be brought on record. In our view, the trial Judge has misdirected himself on the question of law and has found the appellant guilty on the basis of statements of two other accused alleged to have been given by them to the police officer. We therefore, find that the trial Judge was not justified in holding the appellant guilty on the above findings. In the absence of any other circumstance, the mere fact that the appellant and the deceased were talking together on 16.5.2003 and that the fact that the deceased waned to marry the appellant, cannot itself be taken as a circumstance for the appellant to be found guilty of a grave offence of murder, 15. In the result, both the appeals are allowed. The judgment of conviction and order of sentence passed against the appellant are set aside and he is acquitted of the charges. He shall be set at liberty forthwith, if not waned in any other case. The reference made by the State for confirmation of death is rejected.