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2011 DIGILAW 173 (JHR)

Sanatan Rana v. State of Jharkhand

2011-03-09

R.R.PRASAD, SUSHIL HARKAULI

body2011
JUDGMENT By Court.- There are two appellants in this appeal. Appellant No. 2 is the wife of appellant no.1. 2. The appellants have been convicted under Section 302/34 I.P.C. for murder of Malay Kant Biswas by the judgment dated 20.3.2004 by the 5th Additional Sessions Judge (F.T.C.), Dumka and sentenced to life imprisonment, but without the mandatory fine. 3. We have heard learned Amicus Curiae and the learned counsel for the• State. The F.I.R. (fardbeyan), Ext.-4 was lodged at 8.30 hours on 22.5.2002 by Bimal Kant Biswas P.W. 14, father of the deceased. 4. According to the F.I.R. there was a case pending between the accused and the deceased in Court. The appellant no. 2 came to the house of the informant in Village-Kalikandar at about"'5 p.m. on 21.5.2002 and asked the deceased to accompany her to her Village-Khairbani for compromising the matter. The deceased did not return in the night. In the morning, the informant was informed by his younger brother Shyamal Kant Biswas (P.W. 12) that the two accused-appellants had tied the deceased to a tree in front of their house and had killed him by assaulting him with lathi, danda and tangi (sharp edged weapon). Thereupon, the informant went to the Village-Khairbani where he found the dead body of the deceased lying under tree in front of the house of the appellants. On inquiry, the informant came to know that the deceased had been murdered at about 10.30 p.m. on 21.5.2002 in the manner narrated above. According to the F.I.R. this offence was committed because of enmity. 5. There are no eye witnesses, and the case is based on circumstantial evidence only. The solitary eye-witness set up by the prosecution P.W. 4 Chunki Devi has turned hostile and nothing worthwhile could be elicited in her crossed-examination by the prosecution. Even otherwise, is she had witnessed the murder being committed at 10:30 p.m. on 21.5.2002, she would have disclosed it to the other villagers, and in that event the murder and dead body would have been discovered much earlier than the next morning pursuant to the search by the family of the deceased. Even otherwise, is she had witnessed the murder being committed at 10:30 p.m. on 21.5.2002, she would have disclosed it to the other villagers, and in that event the murder and dead body would have been discovered much earlier than the next morning pursuant to the search by the family of the deceased. Another fact brought out in evidence of P.W. 5 Ujjwal Kumar Dey is that the house of the accused infront of which the murder is alleged to have been committed, has the adjoining house of Gopal Rana, and the house of Pargana Murmu P.W. 3 is just 20 paces away, Now if the deceased had been tied to the tree and then assaulted with a lathi, danda and tangi he would have raised some cry or alarm causing these neighbours to reach the place of occurrence. 6. The person who gave the initial information to the informant about the murder, namely, Shyamal Kant Biswas, who was younger brother of the informant has been produced as a P.W. 12, but he says that he himself got this information from his newphew Partho Biswas who has been produced as P.W. 6. This witness says that upon receiving this information he went to the place of occurrence where he found the deceased lying dead tied with a rope and the lathi and kulhari (tangi) was lying by the side of the dead body. Thereafter he went to inform the informant P.W. 14. As against this version of P.W. 12, Partho Biswas P.W. 6 says in his examination in chief that it was Shyamal Biswas P.W. 12 who discovered about the murder. The informant has been examined as P.W.14. In paragraph 2 of his cross-examination, he has stated that the deceased had gone with the appellant no. 2 alone. He has specifically stated that despite enmity no one accompanied the deceased when he went with the appellant no. 2. Prima facie this conduct indicates that when the deceased was going alone with appellant no. 2, it was not apprehended by the deceased or his family members that he would be done to death. It would mean prima facie that the enmity between the parties was not serious enough to cause such an apprehension and, therefore, deceased was• allowed to go alone to a different village. 7. It is trite that the witnesses may lie but the circumstances do not. It would mean prima facie that the enmity between the parties was not serious enough to cause such an apprehension and, therefore, deceased was• allowed to go alone to a different village. 7. It is trite that the witnesses may lie but the circumstances do not. Therefore, this conduct of the deceased and his family members prima facie suggests that enmity was not serious enough to result in any kind of assault upon the solitary deceased by the two accused. 8. Another strong circumstance which has been relied upon by the trial court for recording conviction is the alleged recovery of the blood stained stick, tangi and nylon-rope from the house of the accused appellants, as testified by the P.W. 8 Bharat Dutto. This recovery from inside the house (as deposed by the I.O. P.W. 16) is doubtful, in view of the fact that in paragraph 3 of his cross-examination, the informant has stated that deceased was found tied to a tree with jute-rope and the lathi, danda and tangi were found lying there under the tree. Similar statements about the location of the assault weapons have been made by P.W. 12 Shyamal Kant Biswas and P.W. 13 Sahdeo Dutta. If these assaulting weapons were lying under the tree, there could be no question of their recovery from inside the house. Further when the deceased was found tied to the tree with jute-rope, the nylon-rope which is said to have been recovered from inside the house of the accused loses its relevancy. No jute-rope has been recovered by the police. In the same paragraph of his cross-examination, the informant has stated that the clothes of the deceased were not blood-stained and he cannot say whether lathi, danda and tangi had bloodstained or not. The informant does not say that he entered inside the house of the accused and, therefore, if assaulting" weapons had been inside the house he could have seen the same as stated in his deposition. P,W. 3 Pargana Murmu, P.W. 8 Bharat Dutto the witnesses to the alleged recovery in their depositions mention about recovery of rope and lathi only and not the tangi. 9. P,W. 3 Pargana Murmu, P.W. 8 Bharat Dutto the witnesses to the alleged recovery in their depositions mention about recovery of rope and lathi only and not the tangi. 9. Lack of blood-stained on the clothes becomes relevant when seen alongwith the statement of P.W. 10, who is mother of the deceased to whom a suggestion was given although denied that the deceased was of romantic temperament and had been murdered somewhere else and the dead body thrown at the place where it was found. A similar suggestion has been denied by the P.W. 6, P.W. 7, P.W. 8 and P.W. 12 also. The argument is that the deceased was, because of his activities, killed elsewhere and his body was thrown at tile place where it was found, and because the real assailants were not known therefore the accused were implicated due to enmity. In this connection it has been pointed out that the Investigating Officer Vinode Kumar P.W. 16 has said in para 4 of his deposition that he did not find any blood-stains on the tree, and there were few drops of blood here and there at the place of occurrence. Further P.W. 6 says that when he saw the dead body it was dressed only in a fungi and under-pants. Obviously, the deceased could not have gone to a different village in such scanty clothes. The police has not recovered the rest of his clothes. 10. Again the informant has stated in his F.I.R. that when he reached the place of occurrence he found the dead body lying on the ground but in his deposition he says as P.W.14 that he found the dead body tied to the tree. P.W. 7 Bhageerath Mondal, P.W. 11 Dhuni Ram Murmu and 'P.W. 12 Shyamal Kant Biswas also depose that they saw the dead body was tied to the tree. But P.W. 9 Jiyaram Mondal says that the dead body was lying on the ground at the door of the house of the accused and its hands were tied with a rope. P.W. 13 Sahdeo Dutta says that the dead was lying near the tree. Although this is minor discrepancy but the fact remains that this being a case of circumstantial evidence we have to see whether the chain of circumstances is complete. P.W. 13 Sahdeo Dutta says that the dead was lying near the tree. Although this is minor discrepancy but the fact remains that this being a case of circumstantial evidence we have to see whether the chain of circumstances is complete. The circumstances brought out are that there was some enmity which was not serious enough to cause any major apprehension in the mind of the deceased or his family members. Thus motive is weak. Recovery has already been disbelieved above and, therefore, The only other circumstances is that the dead body was found outside the house of the accused-appellants. 11. Another circumstance relied upon by the prosecution IS that the accused tried to ran away when they saw the police. This circumstance would also be explained by the fear of the police, especially in the circumstance where a dead body has been found outside the house of the accused. 12. In the case of Anil Kumar Singh vs. State of Bihar, reported in 2004 SCC (CrL)1167, the Supreme Court has laid down as follows: "It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The court has to be cautious and avoid the risk of allowing mere suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof." 13. The trial court in its impugned judgment has already disbelieved the alleged extra judicial confession of the accused-appellant no. 2, which was sought to be proved through P.W. 1 Sudhir Pal, P.W. 2 Rajendra Pd. Shah and P.W. 7 Bhageerath Mondal. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof." 13. The trial court in its impugned judgment has already disbelieved the alleged extra judicial confession of the accused-appellant no. 2, which was sought to be proved through P.W. 1 Sudhir Pal, P.W. 2 Rajendra Pd. Shah and P.W. 7 Bhageerath Mondal. This confession is alleged to have been made when the police reached the spot shortly after the dead body was discovered meaning that at least the appellant NO.2 was present there, but P.W. 10 Bani Biswas, the mother of the deceased, P.W. 11 Dhuni Ram Murmu, P.W. 12 Shyamal Kant Biswas and P.W. 13 Sahdeo Dutta say in their depositions that when they and other persons reached the place of occurrence the accused were not in their house which was locked. Thus, to sum up the weak motive pointed out above and the dead-body having been found in front of the house of the appellants are not circumstances which form a complete chain which lead to one and only one conclusion namely the guilt of the accused, which are inconsistent with every other conclusion. 14. In these circumstances, we allow this appeal and acquit both the accused appellants of the charges. Since the accused-appellants are in jail, their bail having been denied during the pendency of this appeal, they shall be set at liberty forthwith unless their detention is required in some other matters.