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2008 DIGILAW 1043 (JHR)

Suleman Xalxo v. State of Jharkhand

2008-09-01

AMARESHWAR SAHAY, R.R.PRASAD

body2008
Judgment By Court.-The appellant having been convicted for the offence under Section 302 as also under Section 201 of the Indian Penal Code was sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and was also sentenced to undergo rigorous imprisonment for three years under Section ~01 of the Indian Penal Code for committing murder of David Kuzur and for causing disappearance of the evidence in order to screen himself from the legal punishment. 2. The case of the prosecution is that the informant Kiran Beck (P.W. 9) was to marry David Kuzur (the deceased) but the appellant Suleman Xalxo being in love with Kiran Beck never liked it and therefore, he had held out threats to the informant in the term that if she would live with David Kuzur, he would either kill her or David Kuzur. The other day, i.e., 20.1.1997 the informant on being asked by David Kuzur to come to a school at Mahuatand, came over there and waited for him till evening but David Kuzur did not turn up and, therefore, she came back home. The next day, i.e., 21.1.1997 when she in anxiety again left for the school, she in the way found a slipper of David Kuzur lying over there and also noticed earth being smeared with blood and hence, she felt some foul play and immediately came to the house of David Kuzur, where she did not find David Kuzur and, therefore, she immediately rushed for the place alongwith Martin Kuzur (P.W. 3) the father and Prakash Kuzur (P.W. 1) brother-in-law of David Kujur where she had found slipper lying. On coming over there, they noticed the trail of the blood leading to the bank of river, where the dead body of David Kuzur was found buried under the sand. The informant suspected the hand of the appellant in the alleged offence as he never liked the informant to marry the deceased. Thereafter, she alongwith father and brother-in-law of the deceased came to Mahuatand Police Station and gave her Fardbeyan (Ext. 7) on 21.1.1997 at 7.30 A.M, upon which first information report was drawn and the Investigating Officer Birendra Kumar (P.W. 12) took up for investigation and came over the place of occurrence where the dead body was lying and then held inquest on the dead body on the same day and prepared inquest report (Ext. 7) on 21.1.1997 at 7.30 A.M, upon which first information report was drawn and the Investigating Officer Birendra Kumar (P.W. 12) took up for investigation and came over the place of occurrence where the dead body was lying and then held inquest on the dead body on the same day and prepared inquest report (Ext. 9). Thereafter, the Investigating Officer sent the dead body for post mortem examination and came to the house of the accused and on search being made, he found one sharp cutting weapon (Born a) and also a knife smeared with blood which were found buried under the earth in the backyard of the house of the accused. The said weapons were seized under the seizure list (Ext. 8). Further the Investigating Officer also seized Jeans full pant and a shirt which were smeared with blood and also a shoe under the seizure-list (Ext. 8/1) which had been kept under the heap of straw. In the meantime, Dr.R.P. Singh (P.W. 10) on receiving dead body, held autopsy on it and found the following ante mortem injuries on the dead body of the deceased. i. Incised wound over face about 6 in number ranging 1" to 3" X W' X W' X 1-1/2". ii. Bruise with swelling over neck about 3" x 2"x 1" with fracture of trachea and lerynax. Left mandible and maxillary bone were found to be fractured. In the opinion of the Doctor, death occurred on account of shock and haemorrhage due to aforesaid injuries one of which was caused by sharp cutting weapon and other by hard and blunt substance. Accordingly, post mortem report was prepared (Ext. 6). 3. After completion of investigation, police submitted charge-sheet against the appellant upon which cognizance of the offence was taken and in due course when the case was committed to the court of sessions, charges were framed to which the appellant pleaded not guilty and claimed to be tried. 4. In course of trial, the prosecution examined as many as 12 witnesses, of them Anil Kujur (P.W. 2) is the witness to the inquest whereas Martin Kujur (P.W. 3) is the witness to the seizure of earth smeared with blood at the place of occurrence. P.W.4, Kalra Kujur and P.W.8, Jalsu Kindo are the witnesses to the recovery of the dead body. P.W.4, Kalra Kujur and P.W.8, Jalsu Kindo are the witnesses to the recovery of the dead body. P.W.5, Antius Ekka, brother-in-law of the deceased has testified that while he alongwith other was going in a Bus on 19/20.1.1997, he saw both the deceased and the accused moving in a drunken state. 5. The trial court after taking into consideration the circumstances put forth during trial that the appellant who was in love with the informant (P.W. 9) had held out threats to her of dire consequences as she was to marry the deceased and that the appellant was last seen in company of the deceased and that murder weapon and also clothes smeared with blood were recovered from the house of the appellant found the appellant guilty and consequently passed the order of conviction and sentence as aforesaid. 6. Being aggrieved with that order, the appellant has preferred this appeal. 7. Learned counsel appearing for the appellant submits that the circumstances which were taken to be incriminating against the appellant had never been fully established by the prosecution in course of trial and even those circumstances used against the appellant never forms a chain so as to come to the only conclusion that it is the appellant, who committed offence and that the theory of last seen as propounded by P.W. 5 is never inspired confidence to be believed as his version is not only uncorroborated but se<:'ms to be unnatural as according to him, it was dark when he had occasion to see both of them and still he claimed to have identified both of them as such, the order of conviction and sentence is fit to be set aside. 8. Heard learned counsel appearing for the State. 9. Admittedly the learned trial court has based his finding of guilt on the basis of circumstances appearing against the appellant and in that event, before holding the appellant guilty, it necessarily requires to be considered as to whether circumstances put forward have been satisfactorily proved and that those circumstances are consistent only with hypothesis of the guilt of the accused. In other words, the chain of evidences must be completed so as to establish that within all human probability the act must have been done by the accused. In other words, the chain of evidences must be completed so as to establish that within all human probability the act must have been done by the accused. Keeping in view the aforesaid principle, if we proceed to examine the case of the prosecution, we do find from the evidence of informant (P.W. 9) that she was about to marry the deceased but the appellant was dead against the proposal of the marriage in between the informant and the deceased and, therefore, before occurrence, the appellant had held out threats to the informant (P.W. 9) not to marry the deceased, otherwise he will either kill her or the deceased. This piece of evidence led by P.W. 9 does get substantiated from the first information report and also gets corroboration from the evidence of P.W.1, who has testified that the appellant also wanted to marry the informant. Nothing has been brought on record to even create a slightest doubt over the said fact and, therefore, there has been no reason to discard the said fact. 10. Next in the chain is a theory of last seen which has come in the testimony of P.W. 5, who has testified that on 19/20.1.1997 while he was returning with his wife from Mahuatand in a Bus, he saw both the deceased and the appellant in a drunken state near a Hotel. However, he, in his cross-examination, has stated that at that time it was dark and, therefore, criticism was made that when it was dark, how this witness would be in position to identify the appellant and the deceased. But while making this criticism, notice of the fact as testified by P.W.5 seems to have been overlooked that both were seen in front of the Hotel which is situated just beside the road where other shops were also there and, in. that event place being under illumination through the light coming from hotel and shops cannot be ruled out. 11. that event place being under illumination through the light coming from hotel and shops cannot be ruled out. 11. That apart, conduct of the appellant of putting a knife smeared with blood under the earth and further blood stained Jeans pant and shirt and also shoe under heap of the straw is the manifestation of the guilty mind of the appellant which is pointer to the guilt of the appellant especially when sharp cut injury was there on the dead body of the deceased and shoe mark was noticed over blood clotting found at the place of occurrence. It is true that the prosecution never cared to get blood stained weapon or the cloths (Jeans pant and shirt) examined by the forensic science expert but that lapse on the part of the Investigating Officer never caste cloud of doubt on the prosecution case as the circumstances appearing against the appellant go to show about the culpability of the appellant and not others. 12. Having considered all these aspects of the matter, we are of the view that there had been strong motive on the part of the appellant to commit offence and that circumstances as aforesaid have fully been established by the prosecution which unerringly point towards the guilt of the appellant and none others and, therefore, the trial court rightly convicted the appellant. Consequently, we do not find any illegality in the impugned judgment. Accordingly, it is hereby affirmed. 13. In the result, this appeal is dismissed.