Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 1060 (JHR)

Ajay Sahu v. State of Jharkhand

2009-07-31

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT Prashant Kumar,J: -This appeal is directed against the judgment of conviction and order of sentence dated 29.03.2004 and 31.03.2004 respectively passed by Additional District and Sessions Judge, Fast Track Court-VIII, Jamshedpur in S.T. No. 111 of 2002 whereby and whereunder the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. However by the said judgment learned court below has acquitted the appellant from the charge levelled against him under Section 376 of the Indian Penal Code. 2. The case of the prosecution as per the written report of Chetan Das is that on 07.02.2002 while he was working in his department he received information on telephone that his wife Leelawati @ Puspa has received burn injury. On the aforesaid information he went to Tata Main Hospital and saw that his wife was burnt comprehensively. After admitting his wife in TMH (Tata Memorial Hospital), he came to his house, where he was informed by his sister-in-law Reena that in the night she woke up after hearing hue and cry and saw that informant’s wife was burning and crying for help. The appellant was present there. When Rina inquired about the reason for burning his sister, the appellant allegedly threatened her and directed her to give the key of gate. When she refused to give the key, the appellant pressed her neck and threatened that she would also be burnt to death. Out of fear she opened the lock and the appellant fled away. The informant’s wife died in the morning of 08.02.2002. It was alleged that the appellant committed murder of informant’s wife after committing rape upon her. 3. On the basis of aforesaid written report, Sonari P.S. Case No. 10 of 2002 dated 08.02.2002 under Section 376/302/201 of the Indian Penal Code was instituted and police took up investigation. 4. After completing the investigation, police submitted charge sheet against the appellant under Section 376 and 302 I.P.C. After cognizance of the said offence was taken, the case was committed to the court of Sessions. 5. Charges were framed against the appellant under Sections 376 and 302 of the Indian Penal Code and the same were explained to him to which he pleaded not guilty and claimed to be tried. 6. Thereafter the prosecution had examined altogether 12 witnesses in support of it case. 5. Charges were framed against the appellant under Sections 376 and 302 of the Indian Penal Code and the same were explained to him to which he pleaded not guilty and claimed to be tried. 6. Thereafter the prosecution had examined altogether 12 witnesses in support of it case. The prosecution had also brought on record the documentary evidence such as seizure list, Fardbeyan, memo of arrest, post-mortem report, formal F.I.R., Inquest Report etc. After considering the evidence available on record learned court below convicted and sentenced the appellant as aforesaid. However, by the same judgment learned court below acquitted the appellant under Section 376 I.P.C. Present appeal has been filed against the judgment of conviction and order of sentence under Section 302 of the Indian Penal Code. 7. Assailing the judgment of court below, it has been submitted that as per the first information report the occurrence took place on 7.2.2002 at 5.45 a.m. but the FIR was lodged on 8.2.2002 at 12.30 hours i.e. after the lapse of 30 hours and no explanation was given for the said delay. It has come in evidence that the deceased has illicit relation with this appellant. It was suggested to the prosecution witnesses that because of the aforesaid reason the informant with the help of P.W. 1, had killed his wife by putting her on fire and the FIR was lodged after much delay with due deliberation falsely implicating the appellant. The conduct of P.W. 1 is against the natural behaviour of a human being. She had admitted in her cross examination that she had not taken any step for putting off the fire. She did not even raise any alarm. She is own sister of the deceased. Her natural conduct would have been to save her sister, but she was a silent spectator and did nothing to rescue her sister. Conduct of P.W. 1 makes her untrustworthy and her evidence wholly unreliable. It has been further submitted that the court below while convicting the appellant had taken into account the circumstance that while the appellant was arrested I.O. had found burn injury on his hand. The court below had also stated in the judgment that under section 313 of the Cr.P.C. the appellant was given opportunity to explain the same but he could not explain the said circumstance. The court below had also stated in the judgment that under section 313 of the Cr.P.C. the appellant was given opportunity to explain the same but he could not explain the said circumstance. From statement of the appellant made under section 313 Cr.P.C., it is clear that no such question was put to the appellant and he has been not given opportunity to explain the same. His conviction cannot be based on the said consideration. P.W. 2 is a minor boy of seven years on the date of his deposition and is a child witness. On the date of occurrence he was less than seven years but he was examined without testing his understanding. Only on the basis of his deposition the conviction of appellant cannot be sustained. 8. On the other hand, learned Additional P.P. submits that P.W. 1 & 2 have categorically stated that the appellant was present while the deceased was burning. The said circumstance goes to suggest that the appellant and none else committed murder of the deceased by burning her. He further submitted that the statements of P.Ws 1 & 2 are trustworthy and reliable. Their statement further found corroboration from P.W. 5 and I.O. P.W. 10 who found burn injury on the hand of appellant. Accordingly, learned trial court has thus rightly held the appellant guilty and there is no illegality and/or irregularity in the judgment of court below. 9. Having heard the submissions, I have gone through the record of the case and scrutinized the evidences carefully. Cause of death of deceased Leelawati devi by burn injury has not been challenged by the defence. The Doctor P.W.-11 who held autopsy had found ante-mortem epidermal burn, over middle scalp, forehead, face, neck, chest, burn of abdomen, right lower limb, front of left lower limb, upper limb, back of neck, chest, and back of left leg. The Doctor had also found smell of kerosene oil on the scalp and hair. The Doctor had opined that cause of death was burn and shock. He had also given opinion that nature of burn is not accidental. The opinion of the Doctor has not been challenged by the defence. Under the aforesaid circumstance I find that the prosecution has been able to prove that deceased died a homicidal death. 10. The Doctor had opined that cause of death was burn and shock. He had also given opinion that nature of burn is not accidental. The opinion of the Doctor has not been challenged by the defence. Under the aforesaid circumstance I find that the prosecution has been able to prove that deceased died a homicidal death. 10. Now the question is: whether the prosecution has been able to prove the appellant as the author of the said crime? 11. Admittedly, there is no direct evidence to prove that the appellant put fire and burnt the deceased. However, the prosecution claimed to have proved the charges against the appellant by circumstantial evidences. 12. From the impugned judgment of the court below, I find that he has mainly relied upon the following circumstance (i) that the appellant had illicit relation with the deceased. (ii) that the P.Ws 1 and 2 have proved presence of the appellant inside the house when the deceased was burning. (iii) that I.O. had found burn injury on the hand of appellant at the time of arrest. 13. I have closely examined the evidence of P.Ws. 1 and 2 to test the said finding of the trial court. P.W. 1 has stated that on the date of occurrence, at about 4 a.m. she heard the voice of her elder sister and woke up and went there and saw that her sister was burning and writhing in pain. She further stated that at that time the appellant Ajay was standing nearby her sister. Ajay seeing her threatened and asked to bring key and open lock of the gate. When she opened the lock Ajay fled away. She thereafter informed about the incident to Yamuna Devi mother of the deceased. After sometime Yamuna Devi and Sanjay arrived there and took the deceased to TMH Hospital, where she died. In the cross-examination, this witness admitted that she did not take any step to rescue her sister and put off the fire engulfing her sister’s body. She has shown her ignorance about the relationship of Ajay with the informant Chetan Das. She has admitted that she had not phoned the informant. At paragraph no. 7, she stated that the police had taken her statement on the date of occurrence itself and on that very day she had returned to her parental house. She has shown her ignorance about the relationship of Ajay with the informant Chetan Das. She has admitted that she had not phoned the informant. At paragraph no. 7, she stated that the police had taken her statement on the date of occurrence itself and on that very day she had returned to her parental house. She denied the suggestion of the defence that she had put her sister on fire in connivance with her brother-in-law (informant). 14. P.W. 2 Sahdeo Das @ Sonu is the son of informant aged about seven years. He has stated that he woke up after hearing the voice of her mother and saw that her mother was burning and Dabbu was standing there. Dabbu had also received burn injury on his hand. He then stated that Dabbu had threatened and asked his aunt (Mausi) to open the lock of the gate. When she opened, Ajay @ Dabbu fled away. Seeing that he went out and from the house of his neighbours, informed his maternal grand father, maternal grand mother and maternal uncle about the occurrence on telephone. After half and hour they arrived and took his mother to hospital where she died. He stated that his mother told that Ajay @ Dabbu had put fire on her. He also stated that his aunt ( Mausi) had not done anything to save his mother and till her maternal grand father, mother and uncle arrived, her mother was lying as it is. He further deposed that he had informed his father on telephone, who was on duty, but in spite of that his father did not come to the house. He further stated that on the date of occurrence police had not come to his house. During the cross examination he states that Ajay is resident of Gol Pahari, which is far away from his residence. He stated that Ajay is not his relative. 15. Thus, on perusal of evidence of P.W. 1 and 2 it appears that they stated that the appellant is not their relative and he is resident of a distant place. Under the said circumstance how they are acquainted with and identified the appellant, is not clear. From their evidence, it is clear that the house of the deceased was locked from inside. Under the said circumstance how they are acquainted with and identified the appellant, is not clear. From their evidence, it is clear that the house of the deceased was locked from inside. There is nothing in their evidence to show that appellant had come to the house of deceased in the previous night. Under the said circumstance how the appellant entered inside the house has not been proved by the prosecution. The aforesaid circumstances cast a serious doubt regarding the presence of appellant in the house of deceased at the time of occurrence. 16. That apart, the conduct of P.W. 1 (the sister of deceased) and also of P.W. 9 (husband of deceased) appears to be unnatural and abnormal of a human being. P.W. 1 admitted in her evidence that she did not make any effort either to put off the fire and save the life of deceased or raise any alarm when she saw her sister burning and the appellant was standing nearby P.W. 2 also stated that P.W. 1 had not done any thing to save his mother. Being the sister of deceased it is expected from P.W. 1 to make all possible effort to put off the fire and save her sister’s life and get the assailant booked. But she did not do so. P.W. 2 has stated that in the morning itself he had informed his father regarding the occurrence, but he did not come there. The aforesaid conduct of P.W. 9 (the husband of deceased) is against the natural behaviour of a husband or a human being. Aforesaid conduct of P.W. 1 and 9 gives a reasonable ground to suspect that there must be something foul with the P.W.-1 younger sister and P.W.-9 husband of the deceased, as suggested by the defence. 17. Further, I find several contradictions in the statement of .P.W. 1 &2. P.W. 1 no where stated in her evidence that the appellant had received burn injury on his hand but P.W. 2 has said so. P.W. 1 has stated that she had informed the mother of deceased, whereas P.W. 2 said that he had not informed them. P.W. 2 stated that he informed his father but P.W. 9 denied the same. Thus, it appears that P.W. 1 and 2 are not truthful. Their testimony is not credible. 18. P.W. 1 has stated that she had informed the mother of deceased, whereas P.W. 2 said that he had not informed them. P.W. 2 stated that he informed his father but P.W. 9 denied the same. Thus, it appears that P.W. 1 and 2 are not truthful. Their testimony is not credible. 18. Learned court below has heavily relied on the circumstance that a burn injury was found on the wrist of the appellant at the time of arrest and he had not explained the same during his examination under section 313 of the Cr.P.C. But on perusal of statement of appellant under section 313 Cr.P.C. I find that no such question was put to him. Under the said circumstance the accused had no opportunity to explain the aforesaid circumstance. The court has, thus committed serious illegality in taking into consideration the aforesaid circumstance for convicting the appellant. It is well settled that if the accused has not been given any opportunity to explain any circumstance, brought against him by the prosecution, the said circumstance cannot be taken as the basis for convicting him. 19. I further find that the appellant has no motive for committing the murder of the informant’s wife. In his evidence the informant P.W.-9 at one place tried to make out the plea that his wife had illicit relation with Ajay but, later on he could not stand and has shown his ignorance about the same. P.W. 5 has stated that at one occasion the neighbours of informant had chased away the appellant from the back side of the house of informant. Thus, if appellant had illicit relation with deceased then he had no reason to commit her murder. Nothing has been brought on record to show that prior to the date of occurrence relation of appellant with deceased had become strained. On the other hand I find that the informant had reason to eliminate the deceased, if she had illicit relation with the appellant. That probablity further gains strength from the fact that even after receiving information in the morning P.W.-9 (husband) did not come to his house immediately, as also from fact that P.W. 1 had not taken any step to save the life of deceased. As noticed above, the defence had suggested the P.W. 1 that the deceased was burnt by her in connivance of informant. As noticed above, the defence had suggested the P.W. 1 that the deceased was burnt by her in connivance of informant. The circumstances appearing on record have fortify the possibility that P.W. 1 and P.W. 9 causing death of the deceased by burning her, have falsely implicated the appellant in the present case. 20. In the above background, the delay of more than 30 hours in lodging the FIR assume importance. P.W. 9 stated that on the date of occurrence he had gone to police station along with one Shyam Lal Sahu, but police did not record his statement. The aforesaid evidence of P.W. 9 does not inspire confidence. No reason was given by the informant as to why police would refuse to record his statement. Even if his statement was not recorded by the Sonari Police, he had option to take further step but he did not do so. Under the said circumstance, I find no satisfactory explanation for lodging the F.I.R. after the delay of 30 hours. 21. It is well settled that in case of circumstantial evidence, the prosecution has to establish all the circumstances by cogent and reliable evidence. It is equally well settled that conviction on the basis of circumstantial evidence can be made if the different circumstances, taken together, form a chain, from which it can be concluded that the accused and none else has committed the crime. In the present case several circumstances remain isolated without any answer on the record particularly as to how the deceased came inside the house, why own sister (P.W.-1) seeing the deceased on fire and burning neither raised alarm nor made nay effort to save the deceased, why the P.W.-9 (husband) did not show any quick reaction on getting information of the incident, why the appellant would kill the deceased and so on and so forth, I find that the prosecution has not been able to clear the said mysteries and doubts and complete the chain of circumstances to prove that the appellant and none-else was the author of the incident. 22. In view of the discussion made above, I am of the view that the prosecution has not been able to prove the charge leveled against the appellant beyond the shadow of all reasonable doubt. Hence, in my view, the appellant is entitled for benefit of doubt. 23. In the result, this appeal is allowed. 22. In view of the discussion made above, I am of the view that the prosecution has not been able to prove the charge leveled against the appellant beyond the shadow of all reasonable doubt. Hence, in my view, the appellant is entitled for benefit of doubt. 23. In the result, this appeal is allowed. The judgment of conviction and order of sentence is set aside. The appellant is acquitted of the charges. It appears that the appellant is in custody, he is directed to be released forthwith, if not wanted in any other case.