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2008 DIGILAW 796 (GAU)

Pandu Munda v. State of Tripura

2008-11-14

BIPLAB KUMAR SHARMA, MAIBAM B.K.SINGH

body2008
JUDGMENT Mutum B.K. Singh, J. 1. This appeal is directed against the judgment dated 19.8.1999 passed by the learned Additional Sessions Judge (Court No. 3), West Tripura, Agartala, in S.T. 74 (WT/A) of 1998, convicting the appellant under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life with a fine of Rs. 5,000 and in default of payment, to suffer further rigorous imprisonment for two months. 2. The prosecution case, as unfolded in trial, is that on 12.7.1997, one Amar Das (PW. No. 2) of Mekhlipara Rangamura village, lodged a written report with the O/C Jirania Police Station to the effect that on the same day, i.e., 12.7.1997 at about 0600 hours the appellant hacked his wife, namely, Malati Munda to death and thereafter, the appellant went to the house of his elder brother Pandu Munda and attempted to assault his brother's wife with the weapon in his hands. On hearing alarm, some of the localities rushed to the spot and overpowered the appellant and snatched away a blood-smeared dao from him. On the basis of the said report, Jirania P.S. Case No. 67/1997 under Section 302 of the Indian Penal.Code was registered against the appellant, and after investigation, submitted the charge-sheet against him under Section 302, IPC. The learned trial court, having found a prima facie case, framed charge under Section 302, IPC against the appellant, to which, the appellant pleaded not guilty and claimed to be tried. The prosecution, in order to substantiate the charge levelled against the appellant, examined 9(nine) prosecution witnesses, exhibited 10(ten) documents and 1(one) material object. No defence witness was adduced. The learned trial court, at the conclusion of the trial, arrived at the decision that the appellant murdered his wife and thus, convicted him under Section 302, IPC and sentenced him as stated above. 3. Heard Mr. M.K. Roy, learned Counsel appearing for the appellant and Mr. B.R. Das Roy, learned Special Public Prosecutor for the State-respondent. 4. That, the learned Counsel appearing for the appellant submits that the learned trial court convicted the appellant without any reliable evidence on record and/or by misreading the evidences on record. The finding of the learned trial court is not only perverse but also illegal and unsustainable in law. B.R. Das Roy, learned Special Public Prosecutor for the State-respondent. 4. That, the learned Counsel appearing for the appellant submits that the learned trial court convicted the appellant without any reliable evidence on record and/or by misreading the evidences on record. The finding of the learned trial court is not only perverse but also illegal and unsustainable in law. The learned Special Public Prosecutor admitted that there is no direct evidence to the occurrence but the appellant confessed to the prosecution witnesses that he murdered his wife. Besides, there are strong circumstantial evidence which pointed only to the guilt of the appellant and the conviction and sentence of the appellant is not called for interference by this Court. 5. That, confronting with such rival submissions of the learned Counsels appearing for the parties, we have carefully examined the evidence on record for our satisfaction, whether the prosecution has proved the charge levelled against the appellant and the conviction of the appellant is sustainable in law. It is an admitted fact that the dead body of the wife of the appellant was found on 12.7.1997 in the early morning on the north-west side of one Samra Munda's house about 50 cubits away on the Mekhlipara Tulakuna Road, with bleeding cut injuries on her body. As per Post Mortem Report marked Exbt-P/5, the death was caused due to shock and hemorrhage following cut-throat injuries, which are homicidal and anti-mortem in nature. From the above facts, there cannot be any quarrel that the deceased Malati Munda was murdered. The core question for determination is whether the appellant murdered his wife Malati Munda as alleged by the prosecution. 6. That, according to the prosecution, the appellant hacked his wife Malati Munda to death by dao in the morning of 12.7.1997. The learned trial court convicted the accused person basing on the extra-judicial confession said to have been made by the appellant before PW. Nos. 3, 4 and 5. 7. Extra-judicial confession is an admission made by a person to anybody against his own interest, which no prudent person would make unless inspired by his own conscience. Thus, such confession can be relied upon if it appears to be voluntary in nature and true. Before acting upon such confession, court is to see the reliability of the person to whom such confession is made and the circumstances under which it was made. Thus, such confession can be relied upon if it appears to be voluntary in nature and true. Before acting upon such confession, court is to see the reliability of the person to whom such confession is made and the circumstances under which it was made. Generally, extra- judicial confession is a very weak type of evidence in nature, it has no clinching evidentiary value, if not voluntary, but can be used as a corroborative piece of evidence. The evidentiary value of confession depends upon the veracity of the witnesses before whom it was made. In other words, the extra-judicial confession must be voluntary, it should be the outcome of the free will of the person confessed inspired by his own conscience without inducement, coercion, fear or threat. The prosecution has to prove that the confession was voluntary. 8. Corning to the facts of the present case, PW. No. 3 Smt. Anjana Munda, stated in her evidence that the appellant after killing his wife attacked her with dao, she caught the hand of the appellant and raised alarm. PW Nos. 5 and 6, on hearing her alarm, rushed to her house and overpowered the appellant and snatched away the dao. Thereafter the villagers came to her house, they tied the appellant by a rope and took him to the spot along with the dao where the dead body of Malati Munda was lying. On interrogation by the villagers, the appellant confessed that he had murdered his wife Malati by dao. In her cross-examination she stated that there were many houses in between her house and that of the appellant and the distance would be about one mile. 9. PW Nos. 4 and 5 are the brothers, they stated that on hearing cry from the house of Ram Munda, they rushed towards the said house and found the appellant with a blood stained dao dragging the PW No. 3 by pulling her hair. They overpowered the appellant and snatched away the dao from him. Many villagers also came to the spot and they tied the appellant by a rope. On their query the appellant confessed to them that he had killed his wife and thereafter, they took him along with the dao on the road where the dead body of Malati was lying. PW. Many villagers also came to the spot and they tied the appellant by a rope. On their query the appellant confessed to them that he had killed his wife and thereafter, they took him along with the dao on the road where the dead body of Malati was lying. PW. No. 4, in his cross-examination stated that PW No. 5 was his full brother and they reside side by side and his house lies at a distance of about 500 cubits from the house of PW No. 3 whereas PW No. 5, in his cross-examination stated that his house situates at a distance of about one kilometer from the house of his brother PW No. 4. He had visited the house of the appellant and found that the appellant was happy with his family members. 10. That, what have been emerged from the above evidence are that the appellant attacked the PW No. 3 with a dao, but he was overpowered by the PW Nos. 4 and 5 and subsequently, tied him by a rope with the help of villagers. Circumstances clearly reveal that the appellant was under the custody and full control of the villagers in connection with the alleged attempt of attacking the PW No. 3 with a dao. PW Nos. 3, 4 and 5 stated in their depositions that on their queries the appellant confessed to the villagers that he had killed his wife. It is quite clear from the above statement that the alleged confession of the appellant was the answer to the queries made by the Villagers including the PW Nos. 3, 4 and 5. In the given situation, it is difficult to believe that the alleged confessional statement, even presuming that it was made by the appellant, was voluntary in nature and made without any throat or inducement from the villagers. It appears that the learned trial court completely overlooked these aspects while passing the impugned judgment. 11. According to the statement of PW. Nos. 3, 4 and 5, the villagers, on hearing the alarm, rushed to the house of PW No. 3 and tied the appellant with a rope and on their queries the appellant confessed to the villagers that he had killed his wife. Surprisingly, the prosecution did not produce any other villagers before whom the alleged confession was made. From the evidence it is also clear that PW Nos. Surprisingly, the prosecution did not produce any other villagers before whom the alleged confession was made. From the evidence it is also clear that PW Nos. 4 and 5 were not the adjacent neighbours of PW No. 3, the house of PW. No. 5 lies at a distance of about 1 km from the house of PW No. 4. Thus, it is also difficult to believe their statement that on hearing the hue and cry they rushed to the house of PW No. 3 and overpowered the appellant PW No. 3 in her statement stated that there were many houses near her house. But, no person from the neighbouring houses came forward before the court to support the prosecution case that PW No. 3 was also attacked by the appellant. And that, no case against the appellant was also registered for attacking the PW No. 3. Except the above alleged confessional statement of the appellant, there is no evidence on record to substantiate the charge that the appellant had murdered his own wife. 12. That PW No. 1 Smt. Sipra Banik, simply stated that she knew the appellant and his deceased wife, on 12.7.1997 at about 6.00 a.m., some plantation labourers came to her house and informed that the accused Pandu Munda has killed his wife by hacking. On getting such information, she immediately rushed to the spot and found the dead body of Malati Munda with several cut injuries. She had also seen the accused Pandu Munda detaining at the place of occurrence by the. villagers and also seen the weapon lying by the side of the accused. PW No. 2 Shri Amar Das, the informant, also stated that on 12.7.1997 in the morning the got information that Pandu Munda killed his wife, on getting the information, he went to the place of occurrence and saw the dead body. He had also seen the accused by the side of the road detaining by the villagers along with blood-stained dao. According to these witnesses, they got information of the occurrence from the plantation labourers in the morning but the prosecution did not produce any of the plantation labourers who saw the occurrence and informed to the PW Nos. 1 and 2. PW Nos. 6, 7 and 8 are the official witnesses. According to these witnesses, they got information of the occurrence from the plantation labourers in the morning but the prosecution did not produce any of the plantation labourers who saw the occurrence and informed to the PW Nos. 1 and 2. PW Nos. 6, 7 and 8 are the official witnesses. PW No. 9, the Investigating Officer stated that on 12.7.1997 the case was endorsed to him by the O/C Jirania Police Station, and he reached at about 10.15 hours at the spot, where he found the dead body surrounded by the villagers. The accused was detained by the villagers and handed over to him. The accused, on his interrogation, confessed his guilt and on the following day he forwarded the accused before the Court for recording his statement under Section 164, Cr.P.C. On 30.8.2008, he recorded the statement of Rai Bari Munda, the daughter of the deceased. The I.O. admitted that the seized dao was not sent for chemical examination. He also could not say who were the neighbours of PW. No. 3. 13. What have been emerged from the above evidences are that some plantation labourers informed the PW Nos. l and 2 that the appellant killed his wife, PW Nos. 1 and 2 rushed to the spot, where they found the dead body of the deceased and the appellant was also found detained by the villagers. The I.O. examined the daughter of the deceased but she was not examined before the court. The police arrested the appellant as handed over by the villagers from the place of occurrence, which was a public road, are not at all sufficient to establish that the appellant had killed his wife. There is no eye-witness to the occurrence. No confessional statement of the appellant under Section164, Cr.P.C. was available on record though the I/O stated that he had forwarded the appellant to the concerned Magistrate for recording his statement under Section 164 of Cr.P.C. The alleged extra-judicial confession is found to be unreliable. The statement of PW Nos. 3, 4 and 5 are full of contradictions and inconsistencies. The prosecution has also failed to prove the motive of alleged murder. Rather, the PW. No. 5 stated that the appellant was very happy with his family members. 14. The learned Counsel appearing for the appellant relied on a decision of the Hon'ble Apex Court Santabai and Ors. 3, 4 and 5 are full of contradictions and inconsistencies. The prosecution has also failed to prove the motive of alleged murder. Rather, the PW. No. 5 stated that the appellant was very happy with his family members. 14. The learned Counsel appearing for the appellant relied on a decision of the Hon'ble Apex Court Santabai and Ors. v. State of Maharashtra AIR 2008 SC 1571 in which the Hon'ble Apex Court held that the chain of circumstances against the accused was not made complete by the prosecution and resultantly the accused entitle to acquittal. In the said case, the dead body of the deceased was found in open space in front of their house which is a public road and the prosecution story that the accused left their house after committing death of the deceased was found unbelievable. In Anu Tangla v. State of Assam (2008) Crl. LJ (NOC) 475 (Gau.), this Court held that the chain of evidence was not so complete as to indicate that in all human probability act must have been done by accused and the circumstances adduced were not conclusive nature. The accused is entitled to get benefit of doubt. In the said case, it was alleged that the accused assaulted his wife by means of an axe causing her instant death on spot but there was not eyewitness to the occurrence. The evidences of all witnesses were full of contradictions and inconsistencies. 15. For the reasons and discussions made hereinabove, we are of the considered view that the alleged confession of the appellant was not voluntary and the prosecution has failed to prove the charge levelled against the appellant beyond all reasonable doubt. Consequently, the appellant is entitled to get the benefit of doubt. Resultantly, the impugned order of conviction and sentence dated 19.8.1999 passed by the learned Additional Sessions Judge (Court No. 3), West Tripura, Agartala, in S.T. 74 (WT/A) of 1998 is set aside. The appellant is acquitted and set at liberty on benefit of doubt. He may be released forthwith, if not required to be detained in connection with other case. The appeal stands allowed. Appeal allowed.