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2009 DIGILAW 690 (JHR)

Tepa Tamsoi v. State of Jharkhand

2009-05-05

AMARESHWAR SAHAY, R.R.PRASAD

body2009
JUDGMENT By Court: Both the appellants were put on trial to face charge under section 302/34 as well as also under section 201 of the Indian Penal Code for committing murder of one Jonga Sinku and for causing disappearance of the evidence of the murder. The appellant no.1 Tepa Tamsoi was found guilty for the offence under section 302 of the Indian Penal Code whereas the appellant no.2 Manjura Hembram was acquitted of the charge under section 302 of the Indian Penal Code, though he as well as appellant no.1 Tepa Tamsoi were found guilty for the offence under section 201 of the Indian Penal Code. Accordingly, the appellant no.1 Tepa Tamsoi was sentenced to undergo imprisonment for life for the offence under section 302 of the Indian Penal Code and was also sentenced to undergo rigorous imprisonment for five years under section 201 of the Indian Penal Code. At the same time, appellant no.2 Manjura Hembram in addition to sentence of five years rigorous imprisonment for the offence under section 201 of the Indian Penal Code was also sentenced to pay a fine of Rs.2000/-and in default to undergo rigorous imprisonment for one year. The case of the prosecution is that on 19.10.1994, Jonga Sinku had gone to market along with Sonamoni (P.W.6) wife of the informant Debra Sinku (P.W.5) for purchasing vegetables etc. After purchasing, while they were returning home in the evening Sonamoni felt giddiness in the way and fell down. Thereupon, she was brought to a nearest house belonging to the appellant no.1 Tepa Tomsoi where she was treated with indigenous medicine by the appellant no.1. When condition of Sonamoni became slightly better, she was brought to her house by the appellant no.1 as well as other persons at about 10-11 P.M. in the night. When the informant Debra Sinku (P.W.5) asked from the appellants about the whereabouts of Jonga Sinku, appellants told him that she has stayed back at the house of appellant no.1. When she did not return home till 10 O’clock on 20.10.1994, informant came to the house of appellant no.1 in search of his aunt (Jonga Sinku) where he was told by the appellant no.1 that she had immediately left for her home in the previous night when he came home. Thereafter she was searched for about a week but they did not get any trace of her. Meanwhile, appellant no.1 absconded. Thereafter she was searched for about a week but they did not get any trace of her. Meanwhile, appellant no.1 absconded. However, when he was seen in his house on 26.10.1994, informant (P.W.5) told Village Munda namely, Kisan Sinku (P.W.3) about the presence of appellant no.1 in his house. Thereupon, on 27.10.1994 Dalpati Onama Gope (not examined) was asked to call appellant no.1. In obedience of the order, Dalpati brought the appellant before Village Munda (P.W.3). On being asked by Village Munda (P.W.3), appellant no.1 disclosed before Mangal Singh Sinka (P.W.4), Matai Sinka (P.W.8) that when he came back home from the house of the informant, he saw Jonga Sinku sucking the blood of bullocks to whom he caught hold of and assaulted on her head with Danda, as a result of which, she fell unconscious and then he called his brother-in-law (Sala) Manjura Membram, appellant no.2 and then both of them, strangulated her to death. Thereafter they wrapped her body in her sari and dumped it at Champila Forest. Thereupon the informant and others came to that place along with appellant no.1 where they found skeletons and also some parts of the body with flesh. Thereafter, Village Munda (P.W.3) sent a written information to the Kumardungi Police Station through Dalpati (not examined). On getting the said written information, a sanha entry was made in the station diary. Thereafter Officer-in-Charge, Dular Chand Pandey (P.W.10) proceeded for village Khandkhori. On reaching over there, he recorded the Fardbeyan (Ext.2) of Debra Sinku (P.W.5). Upon which case was registered. The appellant no.1 on being taken into custody confessed his guilt. Thereafter, Investigating Officer (P.W.10) took the appellant no.1 to that place where dead body had been disposed of and on showing the place, Investigating Officer did recover Skeletons as well as torn sari which were seized under seizure list (Ext.7). Said human remains were sent for examination. On examining it, Dr. Akhilesh Kumar Choudhary (P.W.9) found the skeleton to be of human (female) and accordingly, issued report (Ext.5) After completion of investigation, police submitted charge sheet against the appellants whereupon 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 appellants pleaded not guilty and claimed to be tried. In order to prove the charges, the prosecution examined Village Munda namely, Kishan Chand Sinku (P.W.3), Debra Sinku (P.W.5) and Matai Sinku(P.W.8) who testified that the appellant no.1 made confession before the Village Munda (P.W.3) in presence of them that he assaulted the deceased with Danda, as a result of which, the deceased fell unconscious and then he as well as appellant no.2 strangulated her to death. The trial court believing the extra judicial confession made the appellant no.1 to be true and taking into consideration other circumstances that the appellant no.1 was last seen in the company of the deceased did find the appellant no.1 guilty for committing murder of Jonga Sinku and at the same time, the trial court found both the appellants guilty for the offence under section 201 of the Indian Penal Code. Accordingly, order of conviction and sentence was recorded as aforesaid. Being aggrieved with the order of conviction and sentence, the appellants have preferred this appeal. Learned counsel appearing for the appellants submits that the trial court committed grave error in placing its reliance on the extra judicial confession said to have been made by appellant no.1 as confession made by the appellant no.1 before Village Munda (P.W.3) is never admissible and as such, the impugned judgment is fit to be set aside on this score alone and the appellants are entitled to be acquitted. Heard learned counsel appearing for the State. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that it is the case of the prosecution that the deceased Jonga Sinku had come to village market along with Sonamani (P.W.6) for purchasing vegetables and when they were returning home, Sonamani (P.W.6) having felt giddiness fell on the ground and then she was brought to the house of appellant no.1 where she was treated indigenously. When she became slightly better, she was brought to her house by the appellant no.1 and other persons whereas the deceased remained at the house of appellant no.1, who subsequently was found missing. Thereafter, as per the evidences of Village Munda (P.W.3), P.Ws. When she became slightly better, she was brought to her house by the appellant no.1 and other persons whereas the deceased remained at the house of appellant no.1, who subsequently was found missing. Thereafter, as per the evidences of Village Munda (P.W.3), P.Ws. 5 and 8, the appellant no.1 made confession before them that when he returned back home, he saw the deceased sucking the blood of bullocks and upon it, he assaulted her with Danda, as a result of which, she fell unconscious and then he as well as appellant no.2 and others strangulated her to death. Admittedly confession was made in presence of Village Munda (P.W.3) who, according to the survey report 1913 to 1918 (Kolhan – Singhbhum) is a responsible police officer of his village and is supposed to carry out all his police duties. That being the situation, confession said to have been made by the appellant no.1 becomes inadmissible in view of the provision of Section 25 of the Evidence Act. That apart, confession never seems to have been made by the appellant no.1 voluntarily as it transpires from the testimony of P.W.5 as well as P.W.8 that his hands were tied and had even been assaulted and threatened by the Village Munda before alleged confession was made by the appellant no.1. Under this situation, the trial court certainly seems to have erred in placing its reliance on extra judicial confession for holding the appellant no.1 guilty. Other circumstance which was taken to be incriminating against the appellant no.1 is that the appellant no.1 was last seen in the company of the deceased but the evidence in this respect is otherwise as it is the case of the prosecution itself that when P.W.6 felt ill in the way of coming home, she was brought to the house of appellant no.1 where she was treated indigenously and when her condition got improved, she was taken by the appellant no.1 and others to her house and thereafter none of the witness seems to have claimed that appellant no.1 was last seen in the company of the deceased when he came back. Therefore, this last seen theory taken to be one of the circumstance against the appellant no.1 never gets established. Therefore, this last seen theory taken to be one of the circumstance against the appellant no.1 never gets established. Coming further it be stated that as per the evidence of the witnesses, Skeleton of the deceased as well as torn sari was recovered by the Investigating Officer (P.W.10) at the instance of the appellant no.1 and this was considered to be one of the link of the chain but assuming the said fact being established by the prosecution, it alone cannot form the basis for the conviction of the appellant as it is well settled that in a case of circumstantial evidence, there should be chain of circumstances showing culpability of the accused with crime and the chain should be complete. Thus, the solitary circumstance in absence of other circumstances whatsoever never goes to establish the culpability of the accused. In these view of the matter, the trial court committed an error in recording the order of conviction and sentence against the appellants and hence, it is set aside. Consequently, the appellants are acquitted of the charges levelled against them and the appellant no.1 Tepa Tamsoi is directed to be released forthwith, if not wanted in any other case, whereas appellant no.2 Manjura Hembram is discharged from the liability of the bail bonds. In the result, this appeal stands allowed.