Research › Search › Judgment

Jharkhand High Court · body

2007 DIGILAW 307 (JHR)

Dhirju Singh v. State of Jharkhand

2007-04-11

D.G.R.PATNAIK, DILIP KUMAR SINHA

body2007
JUDGMENT 1. The present Cr. Appeal is directed against the judgment of conviction and order of sentence passed by the 5th Addl. Sessions Judge, Giridih in Sessions Trial No. 40 of 1999 on 16.2.2000 whereby and whereunder the appellant Dhirju Singh was convicted under Section 302, IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 5,000/- with default stipulation and further rigorous imprisonment for 3 years for his conviction under Section 201, IPC and fine of Rs. 500/- with the direction that sentences shall run concurrently. 2. The prosecution was launched on the written report presented by the informant Lakshman Singh (PW 6) at Dhanwar Police State stating therein that his sister-in-law Gunjani Devi (sail) was married to the accused Birendra Singh some 4 years ago at village Bhadwa. On 19.10.1988 Gunjani Devi visited his house in the noon in the same village and narrated her miseries that her in-laws were not giving food properly and that her Korhia (leper) Bhaisur was telling that her husband Birendra Singh would not come to the village unless his wife would be eliminated and therefore, she had apprehension that she might be killed. Upon her such complaint the wife of the informant Rukmini Devi (PW 7) served food to her and consoled by assuring that she would communicate her brother to come and take her away. It was alleged further in the written report that in the same night the accused persons including the appellant Dhirju Singh on the instigation of her husband Birendra Singh, committed murder of Gunjani Devi. On hearing alarm in the village, he went to her matrimonial home in the morning and found the dead body of Gunjani Devi lying on a cot and there were injuries on forehead and her teeth were crushed. All the inmates of her matrimonial home were found absconded except the appellant Dhirju Singh who confessed before him and co-villagers that since Birendra Singh was not inclined to keep her hence he committed murder by causing injuries with axe and 'Khanti'. The written report was presented on 20.10.1998 for the alleged offence in the night intervening 19/20.10.1998 giving rise to institution of Dhanwar P.S. Case No. 217 of 1998 for the offence under Sections 302/120B/34, IPC against 4 accused persons including the appellant Dhirju Singh and the police after investigation submitted charge-sheet against them. The written report was presented on 20.10.1998 for the alleged offence in the night intervening 19/20.10.1998 giving rise to institution of Dhanwar P.S. Case No. 217 of 1998 for the offence under Sections 302/120B/34, IPC against 4 accused persons including the appellant Dhirju Singh and the police after investigation submitted charge-sheet against them. It was gathered during investigation that the accused persons did cause the evidence of the murder of Gunjani Devi to disappear by concealing blood stained tangi, khanti Rod and blosue of the victim. 3. Charge-sheet under Section 173, Code of Criminal Procedure was submitted and accordingly charge against all the 4 accused was framed under Sections 302/34, 201 and 120B, IPC to which they pleaded not guilty and claimed to be tried. The trial Court acquitted the other accused except the appellant who was convicted and sentenced as indicated. The appellant Dhirju Singh preferred Jail appeal against his conviction and sentence and for that Mr. P.A.S. Pati, learned Counsel consented to assist the Court, accordingly he was appointed Amicus Curiae to assist the Court. 4. The points for consideration in this appeal as presented by the appellant Dhirju Singh was that he was suffering from leprosy, serving out life term imprisonment since 21.10.1998 for his conviction under Section 302/34, IPC and that out of 14 witnesses produced and examined on behalf of the prosecution PWs 1, 2, 3, 4, 8, 9, 10 & 11 were unfavourable to the prosecution who did not implicate him in any manner for the alleged charge of culpable homicide amounting to murder. The other witnesses viz., PW 5 is the Doctor who held post-mortem examination, PW 6 is the informant-brother-in-law of the deceased, PW 7 Rukmini Devi is the wife of the informant as well as cousin of the deceased, PW 12 Tripurari Singh and PW 13 Rajendra Singh were the hearsay witnesses and PW 14 Awadhesh Kumar Singh had investigated the case. 5. The specific defence of the appellant before the trial Court was his suffering from acute leprosy for the last 4 years, being not at all capable either to carry on pursuits or lift heavy weapons. The learned Amicus Curiae submitted that the trial Court recorded the order of conviction of the appellant mainly relying upon the statement of PW 7 Rukmini Devi i.e. the wife of the informant who happened to be the cousin of the deceased. 6. The learned Amicus Curiae submitted that the trial Court recorded the order of conviction of the appellant mainly relying upon the statement of PW 7 Rukmini Devi i.e. the wife of the informant who happened to be the cousin of the deceased. 6. Learned Amicus Curiae further submitted that when the informant PW 6 on information visited the matrimonial home of Gunjani Devi, he found several villagers and only the appellant Dhirju Singh was there whereas other inmates had absconded and it was alleged that the appellant Dhirju Singh confessed his guilt before the informant in presence of the villagers that he along with other accused persons committed murder of Gunjani Devi with axe, rod, khanti etc. but none of the villagers was produced in the witness box to corroborate the alleged extra judicial confession of the appellant Dhirju Singh before the informant and villagers. The learned Amicus Curiae attracted the attention of this Court by submitting that the husband of the deceased Birendra Singh at the relevant time of alleged occurrence was out to Delhi for his livelihood with another brother but the prosecution failed to connect him as well as two other accused of committing murder causing death of his wife Gunjani Devi in prosecution of criminal conspiracy and finding no material at all on the record the three accused viz. Birendra Singh, Reena Devi and Bihula Devi were acquitted from charges. But on similar set of materials on record, conviction of the appellant is unsustainable which is liable to be set aside by recording the judgment of acquittal. 7. Learned Amicus Curiae further submitted that, the testimony of PW 6 Lakshman Singh (informant) is important who testified in the following manner that his house was situated from the house of Birendra Singh at the distance of 200 yards in the North and there were many other agnates in the house sharing the Courtyard of Birendra Singh including the co-accused. He admitted as contained in paragraph No. 11 under cross-examination that the appellant Dhirju Singh was living separately at the distance of 50 yards beyond the Courtyard. He admitted as contained in paragraph No. 11 under cross-examination that the appellant Dhirju Singh was living separately at the distance of 50 yards beyond the Courtyard. He admitted that he was hearsay witness who derived information from his wife Rukmini Devi (PW 7) and that she was also hearsay witness having no personal knowledge about the fact of the case and therefore, the conviction of the appellant Dhirju Singh based upon weak piece of evidence of PW 6 and PW 7 is unwarranted, uncalled for and illegal. Learned Amicus Curiae further submitted that PW 7 Rukmini Devi claimed to be the cousin of the deceased living in the same village at the distance of about 200 yards from the matrimonial home of the deceased but she could not identify Birendra Singh i.e. the husband of Gunjani Devi in the dock. He further submitted that evidence which appeared on record indicates that the appellant Dhirju Singh had confessed his guilt before the police but without discovery of any relevant fact or weapons used in killing of Gunjani Devi. The recovery of axe and khanti did not conclusively prove that the same was used by the appellant, who was disabled, suffering from leprosy and the prosecution failed to connect him with the alleged charge. The prosecution further failed to ascertain the report of the Forensic Science Laboratory that the alleged weapons seized were used by the appellant in the commission of murder of Gunjani Devi. The prosecution case was based upon the circumstantial evidence without completing the chain of events and that no incriminating circumstance was put to the appellant while recording his statement under Section 313, CrPC. Similarly, no such question was put to him that he has admitted his guilt voluntarily before Lakshman Singh PW 6 and the villagers to be placed in the category of extra judicial confession or before the police during investigation of the case so as to attract relevancy of facts under Section 24 or 27 of the Evidence Act. 8. Mr. I.N. Gupta, A.P.P. opposed the contention of the Amicus Curiae and submitted that though there was no eye-witness of the alleged occurrence but the case was proved before the trial Court on circumstantial evidence and the prosecution completed each chain of circumstances by adducing consistent witnesses such as PW 6 Lakshman Singh, PW 7 Rukmini Devi, PW 5 Dr. Mr. I.N. Gupta, A.P.P. opposed the contention of the Amicus Curiae and submitted that though there was no eye-witness of the alleged occurrence but the case was proved before the trial Court on circumstantial evidence and the prosecution completed each chain of circumstances by adducing consistent witnesses such as PW 6 Lakshman Singh, PW 7 Rukmini Devi, PW 5 Dr. B.P. Singh and PW 14 Awadhesh Kumar Singh the Investigating Officer which led no other hypothesis except the guilt of the appellant. Besides, the appellant confessed his guilt before the police leading to discovery of blood stained axe and khanti from his house used in the commission of murder of Gunjani Devi. He further submitted that the other circumstances such as cause of death, manner of occurrence and the motive have been consistently proved by PW 5, PW 6, PW 7 and PW 14. The judgment of conviction recorded against Dhirju Singh under Section 302/201, IPC and order of sentence passed against him of life imprisonment and 3 years rigorous imprisonment respectively do not call for interference and hence, the appeal is fit to be dismissed. 9. Having regard to the facts and circumstances of the case, admittedly the present case is based upon circumstantial evidence as no witness produced on behalf of the prosecution claimed to be the eyewitness. In Sharad Birdhi Chand Sarda v. State of Maharastra reported in 1984CriLJ1738 , the Apex Court of India formulated and devised certain conditions precedent before arriving at a conclusion that prosecution case is proved on circumstantial evidence. It was observed. The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. The circumstances concerned 'must or should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with innocence of the accused and must show that in all human probability the act must have been done by the accused. A case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. 10. As pointed out earlier by the Amicus Curiae, the trial Court based the conviction of the appellant Dhirju Singh on the statement of PW 6 Lakshman Singh (informant), his wife PW 7 Rukmini Devi (cousin of deceased). PW 5 Dr. B.P. Singh who held post-mortem examination and PW 14 Awadhesh Kumar Singh, Investigating Officer. 11. According to PW 6 Lakshman Singh and PW 7 Rukmini Devi, the deceased Gunjani Devi had visited their house in the same village during day hours prior to her death, and she expressed her apprehension before PW 7 Rukmini Devi that she might be killed at the hands of the accused persons as her husband was not inclined to return back in the village unless she was eliminated and this fact was revealed by the appellant Dhirju Singh, She further complained of not being provided proper food. Admittedly, the appellant was the elder brother of the husband of the deceased, suffering from leprosy for the last several years as corroborated by PW 3 Sitaram Dusad, the village chaulddar In his testimony who further testified that the appellant was unable to move properly on account of his disease and that he came to learn about the occurrence in the night of Diwali itself. 12. The next point for our consideration is that no near relation such as mother, brother and sister of the parental home of Gunjani Devi was produced in this case as witness, for the reasons best known to the prosecution. 12. The next point for our consideration is that no near relation such as mother, brother and sister of the parental home of Gunjani Devi was produced in this case as witness, for the reasons best known to the prosecution. According to PW 7 Rukmini Devi, the deceased was her cousin and there were brother, mother and sister in the parental home of Gunjani Devi and that the brother of the deceased used to visit her. In our view abstenance of such class of witnesses from the witness box, without explanation, gives rise to presumption against the prosecution case under Section 114(g) of Evidence Act. Similarly we do not find material on the record to show strained' relation between the deceased Gunjani Devi and her husband Birendra Singh so as to call for interference of the appellant being the elder brother of Birendra Singh for her elimination once for all. 13. We have noticed that PW 7 Rukmini Devi though has been projected as an important relation witness of the deceased but she could not identify her brother-in-law i.e. husband of deceased Birendra Singh in the dock. 14. We further observe from her testimony that she was reluctant in her cross-examination by admitting that she had no personal knowledge about the fact of the case and that her evidence was based upon hearsay. At the same time, we find vital contradiction between the statements of PW 6 Lakshman Singh and his wife Rukmini Devi PW 7. According to Rukmini Devi when she visited the matrimonial home of her cousin (sister) she found that Gunjani Devi was laid on a cot after she was assaulted to death. Her teeth were broken and there were injuries on her forehead, breast, abdomen and right leg and that she did not find any inmate in her house except the dead body. On the other hand, according to the informant PW 6 Lakshman Singh when he visited the matrimonial home of the deceased at the distance of 200 yards in the near proximity of time after her he found Gunjani Devi lying dead on a cot with the injuries on her head, arm, breast and there was none except the appellant Dhirju Singh in the house. The witness testified that when he called upon, the appellant confessed that he committed murder of Gunjani according to his will. The witness testified that when he called upon, the appellant confessed that he committed murder of Gunjani according to his will. Lakshman Singh further testified that the house of the deceased was shared by about 40/50 persons with the common courtyard and that Dhirju Singh was living separately beyond the Courtyard at the distance of 50 yard. The witness expressed that he had no personal knowledge about the interaction between his wife and the deceased on 19.10.1998 except that he was there but he did not claim to overhear their interaction and therefore, he cannot be a witness of the fact that Gunjani Devi had expressed her apprehension and circumstances which may result into her death. 15. We observe, therefore, on the basis of the testimony of PW 6 and PW 7 that when they visited the matrimonial home of Gunjani Devi they found her dead body lying on a cot with injuries. We further observe that the testimony of PW 7 Rukmini Devi does not inspire confidence for want of consistency and that her evidence as admitted by her is based on hearsay. We have noticed from her testimony that she could not identify Birendra Singh in the dock who was her brother-in-law as well as the husband of the deceased and for that no explanation has been accorded by the prosecution. The prosecution has projected her as the only witness before whom the deceased Gunjani Devi has expressed her apprehension only a few hours prior to her death that she might be killed at the hands of the accused persons. But under the given circumstances it would not be safe to rely upon her uncorroborated evidence as the credibility of her testimony is doubtful for the reasons stated above. She has fairly admitted under cross-examination that she had no personal knowledge about the occurrence and that she was hearsay witness. 16. But under the given circumstances it would not be safe to rely upon her uncorroborated evidence as the credibility of her testimony is doubtful for the reasons stated above. She has fairly admitted under cross-examination that she had no personal knowledge about the occurrence and that she was hearsay witness. 16. From the evidence of the investigating Officer PW 14, the facts emerged that Gunjani Devi was living in a portion of the brick built house with the common Courtyard shared by the agnates of her husband in its surrounding rooms and according to the informant PW 6 about 40/50 persons were living in the said house but none of the co-shares came forward to support the allegation in respect of the complicity of the appellant in the murder of Gunjani Devi in a room of the same house, which is the most unfortunate part of the case. According to the investigating Officer he did not interrogate any member, of the house with the explanation that he could not meet any of the inmates viz. Bharat Singh, Umesh Singh, Kuldip Singh, Tirat Singh and many others with his further admission having not contacted any of them again. When the attention of the investigating Officers was drawn in his cross-examination, he admitted that Rukmini Devi (PW 7) had not narrated before him (under Section 161 CrPC) that Gunjani Devi had expressed her apprehension that all the three accused Reena Devi, Bihula Devi and Dhirju Singh were threatening that they would not allow her to survive and that they would strangulate her to death. The investigating Officer further admitted in his testimony that Rukmini Devi (PW 7) had not narrated before him that prior to her death Gunjani Devi had expressed her apprehension that she would be killed by Korhia (appellant). 17. Autopsy on the dead body of Gunjani Devi was held on 21.10.1998 by Dr. B.P. Singh at Sadar Hospital, Giridih wherein he found incised wounds of different dimensions on the right side of forehead, frontal region of scalp, left parietal region with swelling on scalp. The Doctor further found lacerated wounds in between the ring and middle fingers, upper lip, fracture of 3 teeth. Again incised wounds on left fore-arm, lower part of right leg and chin with scratch on breast on both sides. 18. On dissection, fracture of occipital bone and contusion in brain was found. The Doctor further found lacerated wounds in between the ring and middle fingers, upper lip, fracture of 3 teeth. Again incised wounds on left fore-arm, lower part of right leg and chin with scratch on breast on both sides. 18. On dissection, fracture of occipital bone and contusion in brain was found. Conspicuously, the stomach as well as urinary bladder were found empty. In the opinion of the Doctor the injuries on the fore-head, frontal region of scalp on parietal region of different dimensions, left forearm, lower part of right leg and "on chin were caused by sharp cutting weapon such as tangi and the rest injuries were caused by hard and blunt substance, ante-mortem in nature. The cause of death, in the opinion of Doctor, was as a result of head injury caused by hard and blunt substance. Time elapsed since death till the post-mortem examination was assessed 12 hours. The Doctor proved the post-mortem examination report Ext. 1. The Doctor admitted that the cause of death was head injury but without profuse bleeding. The post-mortem report coupled with the evidence of the Doctor PW 5 proves beyond doubt that the death of Gunjani Devi was culpable homicide amounting to murder. 19. In the statement recorded under Section 313 CrPC we find that the trial Judge put a question beyond the record that an axe with handle, khantl with blood like spot and blood stained ganji as well as blouse of blue colour were recovered from the house of the appellant as well as from the house of Btrendra Singh. The fact appearing on the record cannot be lost sight of that the appellant Dhirju Singh was living, separately in a room at the distance of 50 yards from the main house where the wife of Birendra Singh (since deceased) and wife of Lato Singh were living and such questions caused prejudice to the defence being the error on facts. 20. The trial Judge convicted the appellant Dhirju Singh on the basis of the following circumstances: (i) Dead body of deceased was found in the house of Birendra Singh. (ii) Deceased Gunjani Devi was living with Reena Devi and Dhirju Singh and Dhirju Singh was the mukhtya of the house. 20. The trial Judge convicted the appellant Dhirju Singh on the basis of the following circumstances: (i) Dead body of deceased was found in the house of Birendra Singh. (ii) Deceased Gunjani Devi was living with Reena Devi and Dhirju Singh and Dhirju Singh was the mukhtya of the house. (iii) Birendra Singh was not liking Gunjani Devi and hence the same is admitted by the accused Bihula Devi and Dhirju Singh before the police and the aforesaid admissions of the accused persons is admissible under Section 21 of the Indian Evidence Act. (iv) Deceased Gunjani Devi had told the PW 7 just before the occurrence that accused persons are not providing food to her and Dhirju Singh (Korhia) would not allow her to live and would kill her and the aforesaid statement of deceased to PW 7 is admissible under Section 32(1) of the Indian Evidence Act. (v) Evidence of PW 6 shows that Dhirju Singh had confessed that he had killed the deceased just after the occurrence and the same is admissible as extra judicial confession under Section 24 of the Indian Evidence Act. (vi) Death of deceased is homicidal and she had several injuries on her per-. son caused by tangi and khanti and she died due to head injury. (vii) Deceased was killed in the night of 19.10.1998 in the room of Birendra Singh which is west of angan of the joint house of accused persons. (viii) The room was found to be washed. Considering the aforesaid circumstances it appears that all the aforesaid circumstances can be used against the accused Dhirju Singh. 21. We are constrained that the above finding of the trial Court is based upon erroneous consideration, without appreciation of law and contrary to the fact on record. According to the prosecution the appellant had confessed his guilt before the police but the Investigating Officer PW 14 fairly admitted in his testimony that he had already seized the incriminating articles from the house of the appellant before such confession and had prepared the seizure list. Therefore, such confession of the appellant is not admissible under Section 27 of the Indian Evidence Act. 22. Therefore, such confession of the appellant is not admissible under Section 27 of the Indian Evidence Act. 22. The next point for consideration is the alleged statement of the deceased Gunjani Devi before PW 7 Rukmini Devi a few hours prior to her death as to the circumstances and her apprehension that she might be killed at the hands of the appellant Dhirju Singh, accused Reena Devi and Bihula Devi, whether shall be treated as the statement under Section 32(1) of the Indian Evidence Act, known as dying declaration? Dying declaration is defined as the statement made by a person as to the cause of his/her death or as to any circumstance of the transaction, which resulted in his/her death. Even if the statement of PW 7 Rukmini Devi is considered so as to attract the provisions of Section 32(1) of the Indian Evidence Act as Gunjani Devi had expressed her apprehension that she might be killed at the hands of the appellant and other accused persons, the fact remains, that this fact could not be corroborated by the informant PW 6 Lakshman Singh though such apprehension was allegedly expressed by the deceased in his presence. On the contrary the Investigating Officer in clear words testified that this' fact was not narrated before him by PW 7 Rukmini Devi during her statement recorded under Section 161, CrPC. It can well be inferred, therefore, that substantial development was made by Rukmini Devi in her testimony before the trial Court which is unacceptable in evidence and in this manner the prosecution failed to prove the admissibility of the alleged statement of the deceased Gunjani Devi before PW 7 Rukmini Devi under Section 32(1) of the Indian Evidence Act. 23. Similarly, the alleged extra-judicial confession of the appellant Dhirju Singh before the informant Lakshman Singh (PW 6) in presence of a large number of villagers without being corroborated by any of them in respect of involvement of the appellant in the commission of murder of Gunjani Devi does not inspire confidence for want of mitigating circumstances. 24. For the reasons stated above, we observe that the grounds set forth by the prosecution and relied by the trial Court for conviction of the appellant Dhirju Singh on his culpability under Section 302/201, IPC are based upon erroneous consideration and not well founded. 25. 24. For the reasons stated above, we observe that the grounds set forth by the prosecution and relied by the trial Court for conviction of the appellant Dhirju Singh on his culpability under Section 302/201, IPC are based upon erroneous consideration and not well founded. 25. We further observe that the facts and circumstances from which the conclusion of guilt is sought to be drawn by the prosecution have not been fully and satisfactorily established beyond all reasonable doubts and in this manner the evidence on record is not adequate for proving the guilt of the appellant. 26. In the result, the appellant Dhirju Singh is acquitted forthwith if not wanted in any other case.