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2008 DIGILAW 745 (JHR)

Suresh Mahto v. State of Jharkhand

2008-07-17

AMARESHWAR SAHAY, D.K.SINHA

body2008
Order This Cr. Appeal is directed against the judgment of conviction under Sections 302/201 I.P.C dated 26.8.1994 and order of sentence recorded on 31.8.1994 in Sessions Trial No. 61 of 1994 passed by the A.J.C., Khunti whereby and whereunder the sole appellant Suresh Mahto was sentenced to undergo R.I for life and fine of Rs. 2,000/- with default stipulation and further R.I. for 5 years respectively with the direction that the sentence imposed upon the appellant would run concurrently. 2. The prosecution case as it stands narrated in the statement of the informant P.W. 1 Kunti Devi recorded on 13.10.93 at about 3 P.M. was that her son Raju aged about six years was persuaded and taken away by the appellant Suresh Mahto on the previous day on 12.10.93 to watch T.V. at his house. When her son Raju did not return back late in the night, she enquired from the appellant to which he expressed his ignorance as to where the boy proceeded though he was watching T.V. there. Her son could not be located in spite of extensive search in the night and on subsequent day when she came out again in search of her son, she was apprised by the daughter of the appellant namely Guriya when came across that her son was drowned in the well by her father (appellant) after strangulating him. Pursuant to such information, she rushed to the pointed well and on putting hooks, she witnessed that the dead body of her son was pulled with the help of hooks and on her cry, the witnesses arrived and in the meantime the police also came there. The dead body of her son was removed from the well. Disclosing the genesis, she narrated that there was altercation between her son and the son of the appellant and for such reason the appellant had given effect to the occurrence. The police registered the case under Sections 302/201 I.P .C. and after investigation submitted charge-sheet against the appellant Suresh Mahto and accordingly charge was framed under Sections 302/201 I.P.C. against him to which he pleaded not guilty and claimed to be tried. 3. Altogether seven witnesses were produced and examined on behalf of the prosecution and the learned Counsel Mr. The police registered the case under Sections 302/201 I.P .C. and after investigation submitted charge-sheet against the appellant Suresh Mahto and accordingly charge was framed under Sections 302/201 I.P.C. against him to which he pleaded not guilty and claimed to be tried. 3. Altogether seven witnesses were produced and examined on behalf of the prosecution and the learned Counsel Mr. AA Kumar submitted that the conviction of the appellant rested solely upon the uncorroborated single testimony of the mother P.W. 1 Kunti Devi, informant of the case. She testified before the Trial Judge disclosing the motive that prior to the alleged occurrence, the son of the appellant Fucha had stolen the goat of P.W. 2 Bandhna Mahto and had taken it to Maranga market for sale. Fucha was apprehended by her neighbor P.W. 5 Tetru Ganjhu with the stolen goat and in this connection her deceased son Raju had disclosed in the "Panchayati" that the goat was stolen by Fucha arid the act of her son therefore, caused concerned to the appellant and in retaliation his murder was committed, as alleged. 4. Mr. A.A. Kumar, the Counsel further submitted that the statement of P.W. 1 Kunti Devi did not stand corroborated by P.W. 2 Bandhna Mahto and P.W. 5 Tetru Ganjhu in so far as the genesis of the occurrence and motive behind alleged killing were concerned and therefore, the statement of Kunti Devi was liable to be disbelieved. Admittedly, Kunti Devi was not the eye witness of the occurrence rather, she derived information from the daughter of the appellant Guriya but Guriya was not examined in support of the prosecution case, though, according to P.W.1 Kunti Devi, Guriya was the eye witness. 5. Advancing his argument learned Counsel submitted that altogether 7 witnesses were produced and examined on behalf of the prosecution, out of them P.W. 2 Bandhna Mahto, P.W. 5 Tetru Ganjhu and P.W. 6 Manoj Mahto neighbours of the informant were unfavourable to the prosecution and did not in any manner support the' prosecution version even remotely leading to the complicity of the appellant for - which he stood charge and convicted under Sections 302/201 I.P.C. The other witnesses such as P.W, 3 Suresh Mahto was the formal witness who proved the inquest report, P.W. 4 Dr. B. Ekka proved the post mortem report Ext. B. Ekka proved the post mortem report Ext. 2 and the Investigating Officer of the case P.W. 7 Kailash Prasad investigated the case in a very slipshod manner, did not strive to find out the real culprit of this case who committed murder of an innocent child. P.W. 7 Kailash Prasad, Investigating ,Officer described the place of occurrence i.e. the well 'from where the dead body of the child was recovered that it was situated in a .field, surrounded by bushes and that the well was not visible from outside. He gathered in course of investigation - that scuffle had taken place between the son of the informant Raju (deceased) and the son of the appellant prior to the alleged occurrence but no case was instituted with respect to such altercation by either side. 6. Mr. I.N. Gupta, learned A.P.P. appearing on behalf of the State-respondent submitted that there were circumstantial evidence against the appellant, who committed murder of the innocent child Raju on a trifling matter. The .informant P.W. 1 Kunti Devi was consistent that her son Raju was persuaded and taken away by the appellant enticing the child to watch T.V. at his home and thereafter, the dead body of her son was recovered next day from the well. Referring to the post mortem report Ext. 2, finger tips bruises on both sides of wind pipe clustered together were found and in the opinion of the Doctor,. the death of the boy was caused by throttling within 44 hours of the post mortem examination which was conducted by P.W. 4 Dr. B. Ekka on 14.6.94. The conviction of the appellant was based upon the theory of last seen in the backdrop of previous enmity and in the circumstances, when the appellant had taken away the child from the custody of his mother Kunti Devi. 7. Having regard to the facts and circumstances of the case, we find substance in the argument that there is no evidence on the record except the statement of P.W. 1 Kunti Devi that the appellant Suresh Mahto had taken away her child Raju enticing him to watch T.V. in his house but when the informant went there and enquired the whereabouts of her son, no plausible explanation could be given except expressing his ignorance as to where the boy went although, he was sitting there in his house. This fact has not been corroborated by any other witness of the prosecution. Even the child witness Guriya who was the daughter of the appellant could not reveal at that time. The informant Kunti Devi admitted in her testimony that during alleged occurrence the appellant was not having any television set in his house but she is silent as to why then she allowed the appellant to take away her child in the backdrop of strained relationship with the appellant. 8. We further find that the informant Kunti Devi derived information from Guriya daughter of the appellant that her son was drowned in the well by her father after committing his murder but the prosecution failed to produce Guriya in the witness box who could have revealed the truth. We further find that no independent witness was produced by the prosecution in support of the charge under Sections 302/ 201 I.P.C. that it was none other than the sole appellant who committed murder of the child Raju and concealed the dead body by throwing it in the well with the intention to screen himself from legal punishment. Admittedly, Kunti Devi is neither the witness for the charge under Section 302 nor under Section 201 I.P.C. P.W. 4 Dr. B. Ekka in course of post mortem examination of a child find the cause of death to be throttling and not of drowning. The Investigating Officer of the case also failed to investigate the case in proper direction for revelation of truth. There is no direct evidence against the appellant for the alleged charge. The prosecution case entirely based upon circumstantial evidence which is also not fool-proof. It is not safe to rely upon the secondary evidence of Kunti Devi who derived information from a child witness who abstained from the witness box for the reasons unexplained by the prosecution. It appears highly improbable that the informant Kunti Devi i.e. mother of the deceased child allowed the appellant with whom she had strained relation since before to take away the deceased from her custody, luring to watch T.V. knowing full well that the appellant had no television set at the relevant time. The learned Trial judge appears to have erroneously placed implicit reliance on the hearsay testimony of P.W. 1 Kunti Devi for drawing inference of guilt of the appellant for the alleged charge which, under the circumstances, cannot sustain. 9. The learned Trial judge appears to have erroneously placed implicit reliance on the hearsay testimony of P.W. 1 Kunti Devi for drawing inference of guilt of the appellant for the alleged charge which, under the circumstances, cannot sustain. 9. We, therefore, find that the materials on the record are not sufficient unerringly to hold the appellant guilty for the charge under Sections 302/201 I.P.C. We further find that the chain of circumstances as projected by the prosecution is not complete so as to warrant conviction of the appellant under Section 302/201 I.P.C. It is settled law that "serious the charges, heavy the burden upon the prosecution to prove" and we find and hold that the prosecution failed to discharge the heavy burden to prove the case. 10. In the result, this appeal is allowed and the judgment of conviction and sentence recorded by the Trial Court is hereby set aside. The appellant Suresh Mahto who is in custody, is directed to be released forthwith, if not wanted in any other case .