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Jharkhand High Court · body

2007 DIGILAW 251 (JHR)

Tala Murmu v. State of Bihar (now Jharkhand)

2007-04-04

D.G.R.PATNAIK, D.K.SINHA

body2007
JUDGMENT By Court.- The appellant was charged with, tried for the offence under Section 302 !.P.C. for having killed his own wife Marsila Pawaria on the night of 8.9.1995 and by the impugned judgment dated 17.3.1998, the trial court had convicted the appellant for the aforesaid offence and had further sentenced to undergo imprisonment for life. 2. The case against the appellant was registered on the basis of the Fardbeyan of the informant Kandni Hansda (P.W. 1) recorded at the Primary Health Centre in the early hours of the morning at 5:30 A.M. on 9.9.1995 by the Police Officer of the concerned Police Station. The allegations against appellant is that the informant's daughter Marsila Paw-aria was married to him and both of them used to live together at village Padan Pahari, though they used to make frequent visits to the house of the informant. The daughter (since deceased) came to her mother's house on 13.8.1995 and lived with her mother for sometime. On 6.9.1995, her husband, namely, the present appellant came to take her back. Two days' later, deceased and her husband were seen off by the informant in the evening at about 6 P.M; Prior to seeing them off; the informant had purchased a blouse and petticoat for her daughter from Shikaripara Hat. The informant accompanied her daughter and son-in-law, up to the river bank located a distance of half a kilometer from her house. On the same night, while she was sleeping at her house, four persons, namely. Police Hansda, Suresh Hansda, Doman Hansda and John Tudu of village Pokharia, came to her house and woke her up and informed her that her son-in-law had assaulted her daughter and the injured was lying on the ground at the border of the village Daldali and Amgachi Hatia. On this information, the informant alongwith her son Stephen Pauria and co-villagers Sushil Hansda and Babuje Pauria and .the above named four visitors proceeded to Amgachi Hatia. When she reached there, Santosh Hansda and Bara Bhima Hansda @ Phogra, both residents of village Pokharia, told her that her injured daughter was taken to the Kathi Kund Sadar Hospital. They also showed her the place where blood stains were found on the ground. The informant thereafter came to the Hospital where she found her daughter lying unconscious with several injuries on her body. They also showed her the place where blood stains were found on the ground. The informant thereafter came to the Hospital where she found her daughter lying unconscious with several injuries on her body. The injured, however, could not survive and died in the hospital in course of her treatment. Attributing motive to the alleged murder, the informant had alleged that her deceased daughter had told her earlier, that prior to her marriage with the present appellant, he had maintained love affairs with a village girl, who was married to another person in village Sahejori, and even after marriage, the appellant used to meet her, whenever she came to the house of her parents and against such affairs of her husband, deceased used to protest and it was ~n retaliation to her protest that the appellant had killed his wife. 3. The appellant had pleaded non-guilty to the charge, with claiming innocence and of his false implication at the instance of the Mukhia of the village (P.W. 4), who had connived with the villagers of Pokharia for protecting them against the murder of the deceased, which they had committed and it was the Mukhia, who had misled the investigation by diverting the investigation towards the appellant. 4. After registration of the case, the Police had prepared the Inquest Report pertaining to the dead body of the deceased in presence of witnesses. Thereafter the dead body was forwarded for post mortem examination, which was conducted by Dr. Sulean Murmu (P.W 2). As per evidence of the Doctor read with the post mortem report (Exhibit 1), the following ante mortem injuries were found on the dead body:- (i) Lacerated wound measuring 2" x 1" x bone deep, over the left side of the forehead. On dissection, the Doctor had found fracture of the frontal bone and the connecting layer and meninges were found lacerated with collection of blood inside the cranium. (ii) Lacerated wound measuring 2" x 1 1/2 x bone deep over the left side of chin with fracture of mandible. ' (iii) Depression of the left side of the face with echymosis with fracture of left maxilla. (iv) Abrasion 4" x 1" into superficial over the lower part of the left side of face. 5. The Doctor had assessed the time of death as within 36 hours prior to the post mortem examination. ' (iii) Depression of the left side of the face with echymosis with fracture of left maxilla. (iv) Abrasion 4" x 1" into superficial over the lower part of the left side of face. 5. The Doctor had assessed the time of death as within 36 hours prior to the post mortem examination. In his opinion, the death was on account of the shock and haemorrhage, as a result of injury No. 1, which was sufficient to cause death. The Doctor has also ruled out the possibility of the injuries being caused by fall. 6. As many as 12 witnesses were examined at the trial by the prosecution. The witnesses include the informant Kandini Hansda (P.W 1), her son Stephen Pouria (P.W. 6), the Doctor, who had conducted the post mortem examination on the dead body of the deceased (P.W 2) and the Mukhia of Village Pokharia (P.W 4) besides the Investigating Officer (P.W 12). Out of the several witnesses, P.W 11 is a formal witness through whom the prosecution had proved the formal F.I.R. (Exhibit 3/2) while P.W 10 was declared hostile by the prosecution. 7. On considering the evidences on record, the trial court had observed that there is no eye-witness or direct evidence of the murder of the deceased and the prosecution case, rests entirely on the circumstance that the deceased was last seen in the company of the present appellant and that there was motive for the appellant to commit the murder of his wife. Placing reliance on the testimony of the informant and her son and that of P.W. 3, who had claimed to have seen the deceased and the appellant quarreling with each other at about sunset time near Amgachi Hatia and also relying upon the evidence of the Mukhia of the village (P.W. 4) and finding corroboration to the evidence of the witnesses from the testimonies of the Doctor, the trial court had recorded the following inferences, r1amely:- (i) That the appellant and the deceased were sent in 'Vidaai' by the informant, who had seen them off in the evening of 8.9.1995 at 6:00 P.M. and had accompanied them till the Bank of the river. (ii) That both the appellant and the deceased were seen by P.W. 3 quarreling with each other, near the alleged place of occurrence, which was an open place at the border of village Daldali and village Pokharia within Kathikund Police Station. (iii) That the people of different villages saw the deceased lying in an injured condition with bleeding injuries. They found one tooth of the injured besides her bangles broken. (iv) That the post mortem examination revealed that there were several ante mortem injuries found on the dead body of the deceased and the injury on the head of the deceased was the cause of her death. (v) That the motive of the murder has been proved by the prosecution. (vi) That no reasonable explanation was being given by the appellant as to why his mothering-law would falsely implicate him. (vii) That the appellant had not lodged any complaint before the Police or any other competent authority regarding the unnatural death of his wife and on the contrary, he was found absconding from his house. Another circumstance, which had weighed on the mind of the trial court was that no definite plea was raised by the appellant in his defence and neither has he been able to establish that he was falsely implicated in the case at the instance of •the Mukhia of the village and contending that the appellant has failed to prove his case in defence, drew an adverse inference against him. On the basis of the above circumstances, the trial court recorded its finding of guilt against the appellant for the offence charged with and had sen4enced him, accordingly. 8. Sri Purnendu Kumar Jha, who has represented the appellant and assisted the Court as amicus curiae, has challenged the impugned judgment of conviction and sentence of the appellant on several grounds, amongst which, the main ground is that the learned trial court has totally misread the evidences and, therefore, the findings of guilt as arrived by the trial court is totally against the weight of evidences on record. Learned counsel explains that though the trial court has observed that there is no eye-witness to the murder of the deceased, nor is there any direct evidence and the case of the prosecution rests entirely on circumstantial evidence, but the trial court has erred in failing to consider that the chain of circumstances, has not been completed and neither does the solitary circumstance of "last seen" lead to any conclusive inference of guilt against the appellant. Learned counsel explains further that .the trial court has seriously erred in failing to consider the vital contradictions available in the testimony of the informant as compared to the testimony of other witnesses including P.W. 3 and of P.W. 4. Learned counsel adds that significantly, the four persons, who have been named in the Fardbeyan of the informant being residents of village Pokharia, who had allegedly come to her at about mid-night and informed about the injured condition of the informant's daughter, have conspicuously not being examined by the prosecution at all. Likewise, the persons named in the F.I.R., who had allegedly shown the alleged place of occurrence to the informant, have also not been examined by the prosecution. In order to demonstrate his arguments on the point of vital contradictions in the evidences, learned counsel has taken us through the evidences of each of the prosecution witnesses. Learned counsel argues further that even according to the entire evidences, it would transpire that the prosecution has even failed to prove the exact place of occurrence, nor has if proved the motive for the murder against the present appellant. 9. Learned counsel for the State on the other hand has strenuously argued in support of the impugned judgment of conviction and sentence and explains that the evidence of the informant (P.W. 1) is consistent as compared to her Fardbeyan and is corroborated by the supportive evidence of her son (P.W. 6) and their testimonies do confirm that the deceased was last seen by the witnesses in the company of the appellant at about 6:00 P.M. on 8.9.1995, P.W. 3, who is an independent witness also claims to have seen the deceased alive in the company of the present appellant about sunset time. Thereafter the deceased was found lying in a seriously injured condition while the appellant was nowhere nearby. Thereafter the deceased was found lying in a seriously injured condition while the appellant was nowhere nearby. Learned counsel adds that the fact that the deceased had sustained fatal injuries to which, she had succumbed later at the hospital, has been well-proved and established by the evidences on record. Learned counsel argues that the circumstance of the deceased being last seen in the company of the appellant, together with the evidence of the informant and of P.W. 6 that the appellant had maintained extra-marital relations with another girl of his own village, offers motive for committing the murder of the deceased and these two circumstances when read together with the fact that the appellant had not offered any explanation for the injuries sustained by the deceased despite the fact that such information was within his exclusive knowledge, complete the chain of circumstances pointing entirely and conclusively towards the guilt of the appellant. 10. On going through the evidences of the witnesses, the only fact, which has not been controverted by the defence is the fact that the deceased had sustained fatal injuries, as a result of which, she died at the Hospital, and had thus suffered homicidal death. This fact is also proved by the medical evidence of the doctor (P.W. 2) and the Post Mortem Report. 11. Admittedly, there is no direct evidence to the murder and the prosecution case rests entirely on the three circumstances, namely, (i) that the deceased was last seen in the company of the appellant, (ii) that there was motive for the appellant to commit the murder of the deceased, and (iii) that the appellant was not found at or near the place where his wife was found lying injured nor did he offer any explanation regarding the cause of injuries sustained by the deceased. 12. In her testimony, the informant (P.W. 1) claims that her deceased daughter used to live at her own house although occasionally she used to live with her husband at village Padam Pahari, which is located at a distance of more than two kilometers from her house. She admits that her son-in-law used to work as a labourer in Bengal and whenever he used to go in course of his employment. he used to leave his wife at the house of the informant. She admits that her son-in-law used to work as a labourer in Bengal and whenever he used to go in course of his employment. he used to leave his wife at the house of the informant. It also appears that she was convinced by the four persons named in the F.I.R., who had come to her house at mid-night, that it was the present appellant, who had killed the deceased. Apparently, her impression that the appellant had killed ,the deceased was on the basis of hearsay statement. The prosecution has not examined any of those witnesses, which were claimed to be residents of the adjacent village Pokharia. With regard to her claim that the appellant had visited her house on 6.9.1995 and two days' later, she had seen off her daughter along-with the appellant, the prosecution has offered supportive evidence of the informant's son (P.W. 6). However, no independent corroboration on this issue has been offered by the prosecution, although admittedly, houses of several other persons are located adjacent to the house of the informant. This aspect of the matter is significant in view of the specific denial of the appellant, who has claimed that he did not visit the house of the informant nor did he bring his wife from the house of the informant in the evening of 8.9.1995. On reading the evidence of the informant and that of her son, it would appear that the four persons, named in the F.I.R., who had purportedly visited the house of the informant in the late hours of the night had told the informant and her son that the appellant had killed the deceased. However, both these witnesses admit that they had not enquired from any of the four persons regarding their source of such information. It is apparent, therefore, that the informant and her son had merely believed on the basis of the information given by the four persons that the present appellant had killed the deceased. Though P.W. 3 claims that by chance, while he was returning to his house at village Amgachi from the house of his acquaintance Pandu Vaski at village Daldali, he had occasion to see the appellant and the deceased together quarreling near the Amgachi at Hatia Tand, but he specifically claims that it was about 6:00 P.M.' that he saw both of them at the said place. The informant has claimed that while seeing them off at about 6:00 P.M., she had accompanied the deceased and the appellant till the bank of the river, which is situated at a distance of about half a kilometer from her house.' She explains that Village Pokharia lies, on the other side of the river and beyond village Pokharia lies Village Amgachi. She further explains that the road leading to Village Padam Pahari (the village of the appellant) also lies on the other side of the river though that road does not lead to the place of the occurrence. The informant claims that as shown to her by the persons of village Pokharia, she found blood stains and broken bangles on the ground near a Sagwan tree, which is located at the border of village Daldali and village Pokharia. The prosecution has claimed this place as the place of occurrence. In the description about the place of occurrence as stated by the Investigating Officer (P.W.12), the place of occurrence is the road between Kathi Kund and Pakhoria. He explains that village Amgachi Hatia is located at a distance of half a kilometer from the aforesaid place of occurrence and asserts that it was by the side of the road that he found blood stains on the ground besides the broken bangles and a hair band. The above evidences would indicate that village Amgachi Hatia is situated at least half a kilometer beyond the alleged place of occurrence, meaning thereby that the deceased had not yet reached village Amgachi Hatia when she was felled down by her assailant. Under such circumstances, the claim of P.W. 3 that he had seen the deceased and the appellant at Amgachi Hatia at about 6 P.M. quarreling with each other, is difficult to reconcile or to believe. No other witness comes forward to state that the appellant and the deceased were seen together at or near the alleged place of occurrence. The only circumstance appearing from the testimony of the informant (RW 1) and her son (RW 6), is that the deceased was last seen in the company of the appellant at about 6 RM. on 8.9.1995 and that the' appellant had visited the house of the informant prior to that date and lived for two days in the house of the informant. on 8.9.1995 and that the' appellant had visited the house of the informant prior to that date and lived for two days in the house of the informant. In absence of any independent corroboration from any of the neighbor-uring witnesses, it would be hazardous to place absolute reliance on this part of the testimony of the witnesses. The offer of RW 3 to support this aspect of the prosecution case appears to be a vain attempt on his part for the reasons discussed above. It appears that the informant and her son were made to believe by the four persons named in the F.I.R., that it was the appellant, who had killed the deceased.• Strangely enough. none of these four persons had come forward to depose nor have they been cited as charge-sheet witnesses by the Investigating Officer. On going through the evidence of the Investigating Officer, it appears that he has disbelieved the statement of the Mukhia of the village (RW 4) regarding sending of four persons of village to the house of the informant in the late hours of the night to inform her about her injured daughter. Even the two persons of village Pokharia, whom the informant has named in her F.I.R., claiming to be the persons, who showed her the place of occurrence, have not been examined by the prosecution. Mysteriously enough. the prosecution has not lead evidence of the person. who had the first occasion to see the deceased lying in her injured condition by the side of the village road that too at a distance of about 15 under a Sag wan tree. The only evidence available from the witnesses is that the informant had found her daughter in injured condition at the Hospital. As to who had found the injured at the alleged place of occurrence and who had brought her to the Hospital, the evidence on record is not clear and convincing. It is also not clear as to the exact time when the deceased was found in her injured condition at the alleged place of occurrence. As to who had found the injured at the alleged place of occurrence and who had brought her to the Hospital, the evidence on record is not clear and convincing. It is also not clear as to the exact time when the deceased was found in her injured condition at the alleged place of occurrence. RW 4, who is the Mukhia of Village Pokharia has claimed that while he was at his house, some persons of his village came to him in the late hours of night and informed him about the deceased lying injured at the alleged place of occurrence and that he had instructed the same four persons to go and inform the informant and that thereafter he personally visited the place of occurrence and arranged for the removal of the injured to the hospital but, as mentioned above, none of the four persons has come forward to depose and neither has any person, who had carried the injured to the Hospital been examined. Contrary to the evidence of P.W 4 that it was he, who had informed the Police and that on his information the Police had arrived at the Hospital, the Investigating Officer asserts that he had received information through the D.O. slip from the Hospital and that prior to the receipt of the D.O slip, he did not receive any information from any source regarding the admission of the deceased to the Hospital in her injured condition. In fact, the Investigating Officer has not believed the statement of the Mukhia (RW 4) about the visit of four persons to his house and his claim of having instructed them to convey information to the informant at her house in the late hours of the night between 81 9.9.1995. The Investigating Officer has also contradicted the testimony of RW 3 on the claim of the witness that he had seen the deceased and the appellant together quarreling with each other at Amgachi Tand, since as such statement was given by the witness on his examination by the Investigating Officer. It also appears that though the informant has attributed motive against the appellant for committing the murder of the deceased but such claim has not been proved and established by the prosecution. It also appears that though the informant has attributed motive against the appellant for committing the murder of the deceased but such claim has not been proved and established by the prosecution. The informant's claim that the appellant was carrying extra-marital relations with another lady as told to her by her daughter does not appear to be a serious cause of hostility between the couple as because though married for the past two years prior to the date of occurrence, the issue was never brought to the notice of any co-villager or before any Panchayat nor was it a cause for any discord between the appellant and his wife and neither has any other circumstance been brought on record as being the immediate cause for the murder. In fact the informant claims that the couple were sent off by them happily. In cases where the prosecution depends only on circumstantial evidence for the murder, motive becomes an important factor and in absence of cogent and convincing evidence to prove the motive, it cannot be considered as a circumstance against the accused. 13. From the evidences on record, it appears that an orchestrated effort was made by the Mukhia (P.W. 4) and other persons to convince the informant and her son that it was the appellant, who had committed the murder of the deceased and the informant and her son had believed the same on the ground that the deceased was seen off by her in the company of the appellant in the evening of the alleged date of occurrence and on the belief that the extra-marital relations, which the appellant had maintained with the other lady, must have prompted him to commit the murder of the deceased. There appears too many questions left unanswered by the prosecution, giving thereby a genuine and bona fide reason to doubt the complicity of the appellant in the murder of the deceased. The appellant is definitely entitled to benefit of doubt. The trial court has though discussed the evidences of the witnesses adduced by the prosecution, but has not analyzed the evidences in proper perspective and has based its findings more on presumptions and conjectures on the basis of the solitary circumstance that the deceased was last seen in the company of the appellant, though the evidence on this issue lacks independent corroboration and has been specifically denied by the appellant. 14. 14. The findings of guilt as recorded by the trial court cannot, therefore, be sustained. We find merit in this appeal. The appellant being entitled to the benefit of doubt, is acquitted from the charge for the offence under Section 302 of the I.PC. The impugned judgment of conviction and sentence as recorded by the trial court against the appellant is hereby set aside. The appellant, who is in custody, is directed to be released forthwith, if not wanted in connection with any other case.