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2009 DIGILAW 935 (JHR)

Arun Mahatha v. State of Jharkhand

2009-07-07

AMARESHWAR SAHAY, R.R.PRASAD

body2009
JUDGMENT By Court The sole appellant namely Arun Mahatha has been convicted for committing offence under Section 302 of Indian Penal Code by holding him guilty for committing the murder of his three minor children and thereby he has been sentenced to undergo rigorous imprisonment for life by the 1st Additional Sessions Judge, Bokaro at Chas by the impugned judgment dated 16th January 2001 in Sessions Trial No. 122 of 1997. 2. The appellant was charged for the offence under Section 302 of the Indian Penal Code for committing the murder of his two minor sons namely Sudarshan Mahtha and Jaidev Mahtha and a minor daughter Meena Kumari while they were sleeping by strangulating them to death in the night of 8/9-10-1996. 3. In his fardbeyan, Chandrashekhar Mahtha (P.W.2 ) alleged that he as well as two other brothers were living separately but in a common courtyard. About a month ago the wife of Arun Mahatha expired and hence in order to attend the funeral and shradh ceremony, the married daughter of Arun Mahatha namely Rekha Devi had come to her parents’ house on 8.10.1996 when the informant went to bed after taking his dinner. Similarly Arun Mahatha and his children also went to bed after taking their dinner. At about 2:45 A:M in the night Rekha Devi (P.W.3) woke up the informant from sleep and stated that her younger brothers namely Sudarshan and Jaidev as well as her younger sister namely Meena were not responding to her call and their bodies appeared to be cold. The informant went to the house of his brother and found that three children were lying dead and there were marks of throttling injuries on their necks. The elder brother namely Arun Mahatha (appellant) was not found in his house. In course of his search a letter was found in a room written in the handwriting of the appellant Arun Mahatha. The substance of the letter indicated that he had killed his three children. The said letter was handed over to the police by the informant. 4. The police took up the investigation and on completion thereof submitted charge sheet, on the basis of which cognisance was taken, thereafter the case was committed to the Court of Sessions, where the charges were framed to which the appellant denied and then he was put on trial. 5. 4. The police took up the investigation and on completion thereof submitted charge sheet, on the basis of which cognisance was taken, thereafter the case was committed to the Court of Sessions, where the charges were framed to which the appellant denied and then he was put on trial. 5. In order to establish the charge altogether ten witnesses were examined on behalf of the prosecution. 6. The appellant, who examined himself as DW-1, took specific defence that in the night of occurrence he was present in his house and deceased children were sleeping with him. At 1.20 A:M he woke up from sleep and then he saw a person going out of the court yard of his house and within ten second he saw two other person going out of the court yard. So, he raised hulla of ‘Chor –Chor’ and ran towards them. When he reached at the distance of ten steps away from his house near the school, one of the miscreants turned back and assaulted him with some substance on his head due to which he fell down. The unknown persons further assaulted him causing injuries on his hands, legs and face and he also suffered dislocation of his teeth by the said assault on hikm. The assailants thereafter took him and tied him up with his lungi, which he was wearing, to a tower and left him there. In the next morning the police came to the tower and rescued him and took him to the police station. He narrated the occurrence to the police officer but the police did not record his statement rather the police assaulted him at the police station and, thereafter, forwarded him to the court. He even tried to give his statement to the Magistrate when he was produced, but he was prevented by the police. He denied having killed his daughter and stated that his brothers were inimical to him. 7. The learned trial court on the basis of oral and documentary evidence adduced by the prosecution convicted and sentenced the appellant as already indicated herein above. 8. Admittedly there is no eyewitness to the occurrence and the whole case is based on circumstantial evidence. 9. 7. The learned trial court on the basis of oral and documentary evidence adduced by the prosecution convicted and sentenced the appellant as already indicated herein above. 8. Admittedly there is no eyewitness to the occurrence and the whole case is based on circumstantial evidence. 9. From the impugned judgement of the trial court, we find that on analysis of the evidence on record the learned trial court found the following circumstantial evidence, which according to him were pointing towards the guilt of the accused. a. That, the three deceased children were in the company of this appellant sleeping along with him and their two elder sisters Asha and Rekha, on the verandah of his house on the night of occurrence. b. That, the murders of the three children were committed while they were sleeping on the same Verandah on the same night, some time after midnight. c. That, the appellant was found absent from his house since after the murders were detected by his elder daughter Rekha at about 2.00 A:M at night. d. That, the appellant was found by witnesses on the next morning at the coal Board tower where he had climbed up in the attempt to commit suicide. e. That, the wife of the appellant had died about a month prior to the date of occurrence. 10. According to the prosecution case, the appellant Arun Mahatha was found absent from his house on the date and time of occurrence and the informant, i.e. his own brother started searching for his brother, i.e. the appellant and in course of search in a room a letter was found, which was said to be written in the handwriting of the appellant Arun Mahatha. The contents of the letter showed that it was this appellant, who had killed his three children. According to the informant, this letter was handed over to the police. 11. The contents of the letter showed that it was this appellant, who had killed his three children. According to the informant, this letter was handed over to the police. 11. The first investigating officer, who has not been produced to give evidence, had, in course of investigation, collected the specimen handwriting of the appellant and sent the same with the alleged letter recovered, which was said to be in the handwriting of this appellant, for comparison and report by the Forensic Science Laboratory but curiously enough without obtaining the report of the Forensic Science Laboratory and without ascertaining as to whether the alleged letter was, in fact, written by the appellant or not, the PW 10, who subsequently took over the investigation, submitted charge sheet in the case but even the original letter, which was said to have been recovered from the room, was not produced in Court by the prosecution. Rather only a photocopy of the said letter was adduced in evidence. 12. The facts remain that the prosecution did not prove or establish the fact that the letter, which was a very important piece of evidence, was in fact, written by this appellant. This appellant, who examined himself as DW-1 stated before the Court during trial that some unknown persons were seen going out of his house at about 1.20 a.m. and he raised alarm and also followed them but he was assaulted by them and it was they who had tied him up with the tower from where he was rescued by the police. The learned trial court had noted the fact that from the order sheet of the Chief Judicial Magistrate it revealed that at the time of production of the appellant by the police for judicial remand, some injuries were found on the person of the appellant. The prosecution has not explained as to how those injuries were received by the appellant. Whereas the appellant in his statement has stated that he was not only assaulted by the miscreants in the fateful night but also by the police. 13. The prosecution has not explained as to how those injuries were received by the appellant. Whereas the appellant in his statement has stated that he was not only assaulted by the miscreants in the fateful night but also by the police. 13. What weight heavily against the appellant before the trial court was that the appellant was found absent from his house after the informant or Rekha Devi found the children dead in the house and secondly, that the appellant was found by the witnessed in the next morning at the Coal Board Tower, where he climbed up to commit suicide. 14. The Supreme Court has already settled the law with regard to circumstantial evidence and has stated that when the prosecution case is bases solely on the circumstantial evidence, the court has to be satisfied that: (iv) The chain of the evidence is such that there is no scope for any reasonable ground for a conclusion consistent with the innocence of the accused. 15. The Supreme Court has also held that normally, there is a motive behind every criminal act and that is why investigating agency as well as the court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. Where the case of the prosecution has been proved beyond all reasonable doubt on the basis of the materials produced before the court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. The investigating agency as well as the court should ascertain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime. (i) The circumstances from which conclusion of guilt is to be drawn has been fully established. (ii)All the facts so established are consistent only with the hypothesis of guilt of the accused and they do not exclude any other hypothesis except the one sought to be proved. (iii) The circumstances on which reliance has been placed are conclusive in nature. Reference in this regard may be made to the case of “Tarseem Kumar-versus-Delhi Administration, reported in (1994) Suppl. 3 SCC 367”. 16. (iii) The circumstances on which reliance has been placed are conclusive in nature. Reference in this regard may be made to the case of “Tarseem Kumar-versus-Delhi Administration, reported in (1994) Suppl. 3 SCC 367”. 16. Coming to the facts of the present case, where the appellant, who is the father of the three unfortunate children, has been charged for committing the murder of his two minor sons and a minor daughter. The prosecution has not proved or tried to establish the motive behind such ghastly act of the appellant. Unless and until the appellant had compelling reason or motive for killing his own three minor children, it is beyond once imagination as to why a father would kill his three minor children without any rhyme and reason. We further find from the evidence of PW-3 Rekha Devi, who is none else the daughter of the appellant, that it was she, who woke up the informant and told him that three children who were sleeping to his room, were not responding to her calls. She, in her evidence, has stated that in the night of occurrence she was sleeping on a cot in Verandah and on the floor her father (the appellant) was sleeping with Meena Kumari, Jaidev Mahatha and Sudarshan Mahatha, all the three deceased. PW-1 Asha Kumari, the other daughter of the appellant, in her evidence has stated that she was sleeping in the Verandah in the night of the occurrence, his brother Sudarshan, Jaidev and sister Meena were also sleeping in the Verandah, the elder sister Rekha Devi (PW-3) was sleeping with brother Sudarshan (deceased) and the other brother Jaidev (deceased) was sleeping with the father (the appellant), whereas sister Meena (deceased) was sleeping with her, i.e. this witness. The question is that if at all the appellant strangulated his three children, who were sleeping either with him or with his two sisters in the same very Verandah then is it possible that the two sisters namely PW-1 and PW-3 could not hear even scream of the three children while they were being strangulating to death by the appellant. There is nothing on the record even to suggest that this appellant was suffering from mental imbalance or depression after the death of his wife, who expired a month prior to the alleged date of occurrence. There is nothing on the record even to suggest that this appellant was suffering from mental imbalance or depression after the death of his wife, who expired a month prior to the alleged date of occurrence. In such a situation, in absence of any motive, it is very difficult for us to believe that the appellant committed the murder of his three minor children. The circumstantial evidences, which have been adduced by the prosecution in the case does not conclusively point out towards the guilt of the appellant. 17. If the prosecution would have able to establish by submitting a report obtained from the Forensic Science Laboratory that the letter, which was seized, in fact, was in the handwriting of the appellant, then the matter would have been otherwise but the prosecution has failed to establish the said fact and, therefore, in view of the discussions and findings above, in our view, the appellant at least is entitled to the benefit of doubt. 19. In view of the discussions and findings above, this appeal is allowed and the conviction and sentence passed by the learned trial court against the appellant is hereby set aside and he is directed to set at liberty forthwith, if not wanted in any other case.