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2011 DIGILAW 65 (JHR)

Son a Mahto v. State of Jharkhand

2011-02-01

R.R.PRASAD, SUSHIL HARKAULI

body2011
JUDGMENT By Court.--The appellant on being found guilty for committing murder of his wife Tara Devi was convicted under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life. 2. The case of the prosecution is that the deceased Tara Devi had been married to this appellant in the year 1996. In the marriage, dowry had been given but still the appellant and other members of in-laws' family were subjecting her to torture with a view to have more dowry. At several occasions, the matter was taken to Panchayati but it did not deter the accused persons from ill-treating Tara Devi. 3. On 22.11.2000 two persons of Village-Banpura came to Budhi Mahto, the informant (P.W. 12) and disclosed to him that his daughter has been killed. On hearing this, the informant alongwith other villagers including Prem Chand Mahto (P.W. 4), Gobardhan Mahto (P.W. 2) came to Village-Banpura and saw the dead body of his daughter lying under a cot. They also noticed injuries on the person of the deceased. There the informant and others came to know that in the intervening night of 21st and 22nd of November, 2000, there was much hue and cry near the house of the appellant on account of deceased being murdered. Therefore, they suspected the hands of this appellant (husband of the deceased), father-in-law, Jagdidh Mahto and mother-in-law, Smt. Radha Devi. A written report to that effect was submitted before the Officer-in-Charge, Bagodar Police Station, upon which a case was registered. 4. However, before the case was lodged one Rajendra Rajak, A.S.I. on getting telephonic information that one woman has been killed, came to Village-Banpura and found the dead body of Tara Devi in her house. He made inquest on the dead body and sent the dead body for post mortem examination. At that time, the villagers had kept the appellant and his mother in their custody before whom the appellant confessed his guilt which was reduced in writing by the said Rajendra Rajak (P.W. 14). In course of trial it was adduced in evidence as Ext.-8 but with an objection. Dr. Rajendra Choudhary (P.W. 5) conducted post mortem examination on the dead body at 4.30 p.m. on 22.11.2000 and found the following injuries: I. Multiple abrasions of varying sizes over left and right side of the neck. II. In course of trial it was adduced in evidence as Ext.-8 but with an objection. Dr. Rajendra Choudhary (P.W. 5) conducted post mortem examination on the dead body at 4.30 p.m. on 22.11.2000 and found the following injuries: I. Multiple abrasions of varying sizes over left and right side of the neck. II. Penetrating wound above unblical region with protruded intestine caused by sharp pointed weapon. Accordingly, the Doctor issued post mortem examination report (Ext.-1) with an opinion that death was caused on account of shock and haemorrhage due to above injuries. 5. Accordingly, the Doctor Issued post mortem examination report (Ext.-1) with an opinion that death was caused on account of shock and haemorrhage due to above injuries. 6. After completion of investigation, chargesheet was submitted against this appellant as well as against Jagdish Mahto and Radha Devi. 7. On committal of the case, all the three accused persons were put on trial and were charged under Sections 304(B), 498(A) and alternatively under Section 302 of the Indian Penal Code. 8. The prosecution in order to establish guilt examined altogether 14 witnesses. Of them, P.W. 1, Khelo Mahto, P.W. 2, Gobardhan Mahto, P.W. 9, Lato Mahto are on the point that when they came to Village-Banpura, they saw the dead body having injuries on her person and that the appellant and his mother had been confined by the villagers before whom and in their presence, this appellant confessed his guilt that he has committed murder of his wife. They also testified regarding demand of dowry and subjection to cruelty. P.W. 4, Prem Chand Mahto, P.W. 10, Degan Mahto, P.W. 11, Panwa Devi and even P.W. 12, the informant have testified that when they came to Village-Banpura, they saw the dead body having injuries on her person and saw the appellant and his mother in the captivity of villagers who told them that the appellant has confessed before them that he has committed murder of his wife. P.W. 6, Karamchand Mahto, who is the resident of the same village has testified that on hearing hulla, when he and other people came near the house of the appellant, the appellant and his mother disclosed to them that some thief in course of committing theft has committed murder of the deceased. 9. P.W. 6, Karamchand Mahto, who is the resident of the same village has testified that on hearing hulla, when he and other people came near the house of the appellant, the appellant and his mother disclosed to them that some thief in course of committing theft has committed murder of the deceased. 9. The trial court on appreciation of the evidence did find that the prosecution has failed to prove the case of dowry death and also demand of dowry. However, the trial court taking the confession made by the accused as extra judicial confession and also the other circumstances did find only the appellant guilty and hence, recorded the order of conviction and sentence. The other two appellants, namely, Jagdish Mahto and Radha Devi were acquitted. 10. Mr. P.K. Mukhopadhaya, learned counsel appearing for the appellant submits that though the appellant is said to have confessed his guilt before the villagers but it was recorded in presence of a Police Officer and hence, its admissibility is hit by Section 25 of the Evidence Act and thereby the trial, court who has based his finding on extra judicial confession which was not admissible has committed a grave error in recording the order of conviction and sentence and hence, the order of conviction and sentence is fit to be set aside. 11. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that on getting information relating to murder of the daughter the informant, P.W. 12 alongwith others, namely, Khelo Mahto, P.W. 1, Gobardhan Mahto, P.W. 2, Prem Chand Mahto, P.W. 4, Lilo Mahto, P.W. 8, Lato Mahto, P.W. 9, Degan Mahto, P.W. 10 and Panwa Devi, P.W. 11 came to the place of the deceased. There they saw dead body of the deceased lying on the ground under a cot. They also noticed injuries on the person of the deceased. Most of them have also testified that the appellant and his mother were in custody of the villagers before whom the appellant confessed that he has killed his wife. There they saw dead body of the deceased lying on the ground under a cot. They also noticed injuries on the person of the deceased. Most of them have also testified that the appellant and his mother were in custody of the villagers before whom the appellant confessed that he has killed his wife. Besides that, the prosecution has also adduced one Karam Chand Mahto, P.W. 6, resident of the same village who has testified that on hearing hulla, when he came at the house of the appellant alongwith others, the appellant and his mother disclosed to them that some unknown thief in course of committing offence of theft, committed murder of the deceased. This witness has further testified that when they entered into the house, they found the dead body lying on the floor where blood was also there which was in copious form suggesting that death had taken place much earlier. It also appeared to them that• theft had never been taken place in the house. 12. Thus, there appears to be unimpeachable evidence that the deceased was killed in a room of the house where the appellant and his family members were residing and that the appellant was very much present at the time of commission of the offence which would be evident from the evidence of P.W. 6, a resident of the same village, who has testified that on hearing alarm being raised by the appellant and other family members, when he and other villagers came over there, the appellant and his mother told to them that some unknown thief has committed murder of Tara Devi, the deceased. Thus, there has been no doubt that the deceased was killed inside the house and at that time the appellant was very much present in the house. In such situation, where a person is killed inside a house, initial burden to establish the case would undoubtedly be upon the prosecution but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act, there will be corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act, there will be corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates cannot get away by simply keeping quiet and offering no explanation on the suppose premises that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation, rather explanation which is offered is found to be untrue, then the same becomes an additional link in the chain of circumstances. 13. Here, in the instant case, it has been well proved that the deceased was killed inside the house where the appellant was very much present. Explanation which is coming forth from the side of the appellant is that some unknown thief has committed murder of his wife. This explanation, keeping in view the injuries on the person of the deceased and also the fact that dead body was lying on the ground under a cot, does not fit in with the theory of killing of the deceased by the thief as normally it is not expected that a thief in hurry would inflict multiple injuries in the nature of abrasion alongwith punctured wound. Moreover, P.W. 6 did not notice any kind of sign of theft. 14. That apart, P.W. 6 did find the blood which was there near the dead body but it was in copious form suggesting that death had taken place much before when alarm was raised by the appellant. Thus, whatever explanation has come that appears to be wholly untrue and this can be taken to be an additional link in the chain of the circumstances. 15. That apart, it would be worthwhile to record that the trial court has based his order of conviction on the confession made by the accused persons before the villagers but from the evidences of the witnesses, particularly, P.W. 1, Khelo Mahto, P.W. 2, Gobardhan Mahto and P.W. 9, Lato Mahto, it does appear that when accused confessed about his guilt before the villagers, police was present. In that view of the matter, such confession will have no evidentiary value in view of the provision as contained in Section 25 of the Evidence Act. In that view of the matter, such confession will have no evidentiary value in view of the provision as contained in Section 25 of the Evidence Act. Nevertheless the circumstance as aforesaid appearing against the appellant is so clinching that it unerringly points towards none other than the appellant. That apart, motive which has come on the record is that the appellant's wife suspecting the appellant to have had affair with other girl which she was complaining repeatedly and as such, being annoyed with he committed the offence. 16. Therefore, the circumstances enumerated above unerringly point to the guilt of the accused and they are inconsistent with his innocence. 17. Thus, we do find that the trial court has rightly convicted and sentenced the appellant. Hence, the order of conviction and sentence is hereby affirmed. 18. In the result, this appeal stands dismissed.