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2009 DIGILAW 308 (JHR)

Manoj Kumar Sao v. State of Jharkhand

2009-02-26

N.N.TIWARI, PRASHANT KUMAR

body2009
Judgment By Court.-The sole appellant Manoj Kumar Sao has filed this appeal against the judgment of conviction and order of sentence dated 16.12.2003 passed by Additional Sessions Judge, FTC-V, Giridih in S.T. No. 360 of 2002 whereby and whereunder the appellant has been convicted under Sections 302 and 201 of the I.P.C. and sentenced to undergo imprisonment for life for the offence under Section 302 of the I.P.C., however, no separate sentence has been passed for the offence under Section 201 of the IPC. 2. The prosecution case in short, as per the written report of P.W. 7 (Dilip Kumar Sao) is, that in the night of 21.7.2002 at about 10 p.m. he came to know that his son Sanni (deceased) was absent from the hostel. On that day, at about 2 p.m., informant's brother, namely, Manoj Kumar Sao (appellant) had taken the deceased from the school on the pretext that he was required for some work. For two/three days thereafter the informant and his family members searched for the deceased, but he was not found. It is alleged that on 24.7.2002 at about 3 p.m. he heard that in Dilip Mistan Bhandar some foul smell was coming from the top floor. Dilip Mistan Bhandar was situated in the ground floor of the informant's house. On hearing, the same, the informant went to the said premises, there he found the dead body of his son in the staircase concealed under wooden logs. The informant alleged that the informant's brother, namely, Manoj Kumar Sao brought the deceased from the hostel on some allurement and killed him due to property dispute and concealed his dead body. He had taken the key of the house from one Mukesh and took Sanni (deceased) inside the house. There, he committed his murder and concealed the dead body, which was recovered on 24.7.2002. 3. On the basis of aforesaid written report, Jamua P.S. Case No. 0139 of 2002 dated 24.7.2002 was registered under Section 302/201 of the IPC. 4. The police took up investigation. After completing investigation, police submitted charge-sheet against the appellant under Section 302/201 of the IPC. 5. Cognizance of the said offences was taken and the case was committed to the court of sessions as the offence under Section 302 of the IPC is exclusively trible by the court of sessions. 6. 4. The police took up investigation. After completing investigation, police submitted charge-sheet against the appellant under Section 302/201 of the IPC. 5. Cognizance of the said offences was taken and the case was committed to the court of sessions as the offence under Section 302 of the IPC is exclusively trible by the court of sessions. 6. After the commitment, charge was framed and explained to the appellant under Section 302/201 of the IPC to which the appellant pleaded not guilty and claimed to be tried. 7. The prosecution examined altogether 13 witnesses in support of its case. The prosecution also brought on record some documentary evidence viz. Ext. –1-the P.M. report, Ext.-2 series- Signatures on fardbeyan, signature on the statement under Section 164 Cr.P.C., signatures on inquest report. Ext-3 the inquest report, Ext.-4-the formal FIR, Ext.-5-the written report, Ext.-4/1-endorsement on written report, Ext.-6-the statement of Mukesh Kumar Sahu. 8. The appellant was thereafter examined under Section 313 Cr.P.C. in which his defence was total denial of the changes. 9. Learned trial Court after considering the evidence available on record came to the conclusion that the prosecution has successfully proved the charges under Section 302/201 of the IPC against the appellant and accordingly convicted the appellant and sentenced to undergo imprisonment for life by the impugned judgment. 10. In this appeal learned counsel for the appellant Mr. Jitendra S. Singh assailed the impugned judgment on the ground that there is no eye witness to the occurrence; the entire case of prosecution is based on circumstantial evidence. The prosecution failed to prove the case beyond the shadow of reasonable doubts. The prosecution could not establish the chain of circumstances from which it can be inferred that the appellant and none else had committed murder. There are sufficient material on record to show that the deceased was killed by some body else and his dead body was concealed in the upper floor of Dilip Mistan Bhandar the place which is accessible to public at large. The prosecution failed to prove the charges leveled against the appellant beyond the shadow of all reasonable doubts. Thus, the judgment of conviction and order of sentence cannot be sustained in this appeal. 11. The prosecution failed to prove the charges leveled against the appellant beyond the shadow of all reasonable doubts. Thus, the judgment of conviction and order of sentence cannot be sustained in this appeal. 11. On the other hand, learned Additional P.P. supported the impugned judgment and submitted that P.W. 8 and P.W. 6 have categorically stated that, at 2 p.m. the appellant had taken away the deceased from the hostel of the school and thereafter he did not return. P.W.9 (Mukesh Kumar Saha) is the owner of the Dilip Mistan Bhandar. He has deposed that on 21.7.2002 at about 2 p.m. the appellant had taken the deceased on the roof of the sweet shop. Thereafter the deceased was traceless. His dead body was subsequently recovered on 24.7.2002 from the upper floor of the shop. The circumstances relied upon by the court below are sufficient to complete the chain and infer that the appellant and none else had committed murder of deceased. There is, thus, no illegality and/or irregularity in the judgment of court below and the same requires no interference by this Court. 12. Having heard learned counsel for the appellant and learned APP, we have carefully scrutinized the evidence available on record. We find from the evidence of the doctors P.W. 4 and 5, who had jointly held autopsy on the dead body, that there were ante mortem injuries on the person of deceased. The said witnesses have opined that the deceased died due to shock and haemorrhage caused by ante mortem injuries of fracture of sternum and rupture of heart and lung. From the said findings of the doctors P.Ws. 4 and 5, it is clear that the death of Sanni was homicidal. Learned counsel for the appellant also fairly submitted that there is no ground to challenge the finding of homicidal death of the informant's son. 13. Now the question is as to whether the prosecution has been able to prove that the appellant was the author of said murder. 14. Admittedly, there is no eye witness to the occurrence and case of the prosecution is based on the circumstantial evidence. 15. In order to prove the charges by circumstantial evidence, the prosecution has to satisfy the following conditions:- i. The circumstance from which an inference of guilt is sought to be drawn must be established. ii. 14. Admittedly, there is no eye witness to the occurrence and case of the prosecution is based on the circumstantial evidence. 15. In order to prove the charges by circumstantial evidence, the prosecution has to satisfy the following conditions:- i. The circumstance from which an inference of guilt is sought to be drawn must be established. ii. Those circumstances should be of a definite tendency Unerringly pointing towards the guilt of the accused. iii. Circumstances taken together should form a chain so that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. 16. Keeping in view• the aforesaid settled principle of law, we examined the record to find out whether there are cogent and acceptable evidence to establish a definite tendency unerringly pointing the guilt towards the appellant. 17. In the instant case the prosecution relied upon the following two circumstances to prove the guilt of the appellant. (i) The appellant had taken away the deceased from the school hostel at 2 p.m. on 21.7.2002. (ii) The appellant had taken the deceased on the roof of Dilip Mistan Bhandar through staircase on 21.7.2002 and thereafter the dead body of Sanni was recovered from the staircase concealed under wooden logs. 18. To prove the first circumstance, the prosecution heavily relied upon the testimony of P.W. 6 Yogendra Nath Jha, the principal of the school and P.W. 8Krishnadeo Jha, teacher-cum-warden of the hostel. P.W. 6 deposed that on 21.7.2002 at about 5 p.m. in the evening when he was taking attendance in the hostel, he found that Sanni was not present. When he enquired about him, P.W. 8 Krishnadeo Jha told that at 2 p.m., deceased has gone his home alongwith his uncle (Manoj Kumar Sao). From perusal of evidence of P.W. 6, it is manifestly clear that he is hearsay witness on the point of this circumstance. He himself had not seen the appellant taking away the deceased. What he deposed in the court was told by P.W. 8. Thus, on this point, the evidence of P.W. 8 is most crucial. P.W. 8 who is the warden of hostel has stated that on 21.7.2002 Sanni came to him and told that his uncle had come and sought permission for going to home. This witness further stated that he has given permission to go home. Thus, on this point, the evidence of P.W. 8 is most crucial. P.W. 8 who is the warden of hostel has stated that on 21.7.2002 Sanni came to him and told that his uncle had come and sought permission for going to home. This witness further stated that he has given permission to go home. His uncle had told that he will bring back Sanni after 2-3 hours. Then he took away the boy with him. The prosecution case is that thereafter the deceased did not return. However, paragraph no. 11 the deposition of P.W. 8 completely changed the situation when the witness after seeing the appellant in the dock, said that the appellant is not the person who had come to hostel on 21.7.2002 and taken away Sanni with him. He specifically told that the uncle, who had come in the hostel on 21.7.2002, is not present in the court. It is, thus, clear from the evidence of P.W. 8 that some body else took away the deceased from the hostel on 21.7.2002. In that view, we find that the first circumstance is not proved against the appellant. 19. The prosecution relied upon the evidence of P.W. 9 to prove the second circumstance against the appellant as mentioned above. P.W. 9 Mukesh Kumar Saha is the owner of Dilip Mistan Bhandar. He deposed at paragraph no. 2 that on 21.7.2002 the appellant came to his sweet shop at 2 p.m. alongwith the deceased and demanded key for going to the roof. When he said that key is not with him, the appellant and Sanni went upstairs through staircase. He then stated that on 24.7.2002 at about 3 p.m, some foul smell was emitting from tile roof of the building. He informed about the same to Bhagwat Sah-grandfather of Sanni on telephone. Thereafter Bhagwat Sah came and went on the roof and saw the dead body of Sanni (his grandson) concealed under wooden logs. In cross-examination, this witness stated that on 21.7.2002 he did not see them returning from the roof. He then said that he had seen Sanni (deceased) coming down after one hour, then, he added that because he was busy in the shop, he could not see. 20. The Court below has recorded the demeanor of this witness and remarked that the witness is trying to change his answer rapidly. He then said that he had seen Sanni (deceased) coming down after one hour, then, he added that because he was busy in the shop, he could not see. 20. The Court below has recorded the demeanor of this witness and remarked that the witness is trying to change his answer rapidly. The aforesaid statement of witness that the deceased was coming down from the roof after one hour and his earlier statement that he could not see the deceased returning from the roof makes his evidence shaky and not wholly reliable. At paragraph no. 10 he has stated that on 21.7.2002 the father of deceased, namely, Dilip Kumar Sao came and made query from him about the deceased. He then stated that he informed him that Manoj Saw had taken Sanni (deceased) on the roof of the building at 2 p.m. The aforesaid statement of P.W. 9 was supported by P.W. 7 (the father of deceased). He had nowhere stated that P.W. 9 informed him that the appellant had taken the deceased on the roof of the house. On the contrary, P.W. 7 had stated that on 21.7.2002 his son Sanni (deceased) had come to the house at 6 to 7 a.m. in the morning, because the school was closed on that day due to Sunday. He further deposed that on 21.7.2002, his son was sitting with him in the shop till 4 p.m. Then he stated that on that date at 5 p.m. he dropped his son near the bus stand for going to the hostel. This fact was also supported by P.W. 2 at paragraph no. 9 where he stated that on 21.7.2002 when teacher Krishna Deo Jha come for making inquiry, Sanni (deceased) was sitting alongwith his father in the cloth shop. The aforesaid statement of P.Ws. 2 and 7 gives fatal blow to the claim of P.W. 9 that the appellant had taken the deceased to the roof at 2 p.m. on 21.7.2002. 21. It is pertinent to mention that P.Ws. 1 and 2 had categorically stated that the appellant have some strain relation with P.W. 9 because P.W. 9 had not paid rent of the shop for last one year and because of non-payment of rent, the appellant had asked him to vacate the shop. 21. It is pertinent to mention that P.Ws. 1 and 2 had categorically stated that the appellant have some strain relation with P.W. 9 because P.W. 9 had not paid rent of the shop for last one year and because of non-payment of rent, the appellant had asked him to vacate the shop. We find force in the submission of learned counsel for the appellant that P.W. 9 managed to falsely implicate the appellant due to the said reason. 22. It has also come in the evidence of P.W. 2 that the father of the deceased used to lend money to some criminals and he had quarrel with them regarding the transaction. P.W. 2 further deposed that when he asked the father of the deceased he had said that some criminals must have committed the crime. He had not disclosed this fact to the police due to fear of causing further harm by the criminals. From the aforesaid statement of P.W. 2 it is clear that even the informant and the family members of deceased suspected that some other persons than the appellant might have committed murder of Sanni. It has also come in the evidence of P.W. 13 (the I.O.) that at the place of occurrence, no blood stain was found. That goes to show that the crime was committed somewhere else and thereafter the dead body was brought and concealed on the staircase which door was open and accessible. 23. In view of the above discussion, it is manifest that the circumstances alleged against the appellant, by the prosecution could not be established by cogent and acceptable evidence. The facts and circumstances appearing from the evidence and material on record do not rule out the possibilities of committing murder of Sanni by some other persons. 24. We, therefore, hold that the prosecution has not been able to prove the charges leveled against the appellant beyond the shadow of all reasonable doubt and that the impugned judgment of conviction and order of sentence is not sustainable. 25. In the result, we allow this appeal, set aside the judgment/order of conviction and sentence of the appellant. The appellant, who is in custody, shall be set at liberty forthwith, if he is not wanted in any other case.