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2011 DIGILAW 751 (JHR)

Maklu Kisku v. State of Jharkhand

2011-08-01

P.P.BHATT, R.K.MERATHIA

body2011
JUDGMENT By Court.-No body appears on behalf of the appellant in this appeal. Mr. Yogesh Modi, learned panel counsel is appointed as amicus curiae to assist the Court on behalf of the appellant in the second half. Mr. R.C.P. Sah, learned A.P.P. appears for the State. 2. Heard the parties on merits. 3. This appeal arises out of the judgment and order of conviction and sentence dated 14.11.2002 and 18.11.2002 respectively passed by the learned Vth Addl. Sessions Judge, Fast Track Court No. II, Godda in Sessions Case No. 29 of 2002 convicting the appellant under-Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and also imposed a fine of Rs. 1,000/- and in default thereof to undergo simple imprisonment for one year. 4. The prosecution case in brief - is that Govind Tudu (PW 12) gave fard beyan on 22.06.1999 at about 6:30 p.m. before the Police that his first wife died in the year 1997 leaving behind a son, aged about two years. Thereafter, in 1998 he solemnized second marriage with the appellant, Maklu Kisku. After the death of his first wife, the said child Amit Tudu was sent to the village and after about six months of the second marriage, he was brought back. The behaviour of the second wife (appellant), aged about 20 years, was not good with Amit. On the previous day, at about 3:30 p.m., when the informant went to market leaving Amit and the appellant in house, Lal Tudu (PW 2) informed him that his son Amit has died on which the informant returned to his house and saw the appellant there. Amit was lying dead on a jute bag. There was sign of rope on his neck. He enquired from his wife. She refused to say anything and started weeping. The neighbourers assembled. The appellant accepted that she killed Amit. Thereafter, information was sent to the Police. It is alleged that the appellant confessed her guilt before the Police saying that she was not loving Amit and when she was alone with him as the informant went to Hatia, she thought it a good chance. Then she took a rope from the house and put it around the neck of Amit and tied it. Consequently, he died. Then she put a jute bag over him and the rope was there near the bag. Then she took a rope from the house and put it around the neck of Amit and tied it. Consequently, he died. Then she put a jute bag over him and the rope was there near the bag. It is further alleged that on such confession, the Police seized 'Nylon thread' measuring about 6 hand long, hidden below the jute bag from the house of the informant. The Police submitted charge-sheet under Section 302 of the I.P.C. 5. Mr. Yogesh Modi, learned amicus curiae, appearing on behalf of the appellant assailed the impugned judgment on various grounds. He submitted that there was no recovery of rope on the confession of the appellant. Rather, the rope was found under the jute bag covering the dead body. He further submitted that there is no eyewitness in this case. Therefore, the only thing against the appellant is her alleged confession before the Police. He further submitted that PW 5, inter alia, said that the appellant was subjected to assault by the Police, till she accepted her guilt. He further submitted that except the informant, none of the independent witnesses in the neighbourhood said that the appellant disliked or ill-treated the deceased. Rather, PW 5 said that the appellant had no complaint with the deceased. He lastly submitted that the appellant has already remained in jail for about 12 years. 6. On the other hand, Mr. R.C.P. Sah, learned A.P.P. appearing for the State supported the impugned judgment. 7. The Prosecution examined 12 witnesses, out of whom PWs 1, 2 and 9 are the neighbourers/co-villagers, (PW 2 has turned hostile). PW 3 is the maternal uncle of the deceased. PW 10 is the Investigating Officer. PW 11 is the Doctor, who had conducted Post-mortem and PW 12 is the informant. 8. We find force in the submissions of Mr. Modi, appearing for the appellant that the case of the Prosecution is mainly based on the confession of the appellant before the Police. As per the evidence of PW 5, the appellant was subjected to assault by Police till she accepted her guilt. It is also clear from the evidence that the rope was not recovered on the confession of the appellant. Rather, it was lying under the jute bag, covering the deceased itself. As per the evidence of PW 5, the appellant was subjected to assault by Police till she accepted her guilt. It is also clear from the evidence that the rope was not recovered on the confession of the appellant. Rather, it was lying under the jute bag, covering the deceased itself. It also appears that though the Doctor opined that Amit died due to asphyxia caused by strangulation by ligature but he also specifically said that in such case, the eyes must be protruded, whereas none of the witnesses have said that the eyes of Amit protruded. 9. After hearing the parties and carefully going through the records in our opinion, the appellant deserves the benefit of doubt. This appeal is accordingly allowed. The impugned judgment and order of conviction and sentence dated 14.11.2002 and 18.11.2002 respectively passed by the learned Vth Addl. Sessions Judge, Fast Track Court No. II, Godda in Sessions Case No. 29 of 2002 are hereby set aside. The appellant, who is in jail, is directed to be released forthwith, if not wanted in connection with any other case. Appeal allowed.