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2012 DIGILAW 947 (JHR)

Raghu Mahato v. State of Jharkhand

2012-07-09

D.N.UPADHYAY, R.K.MERATHIA

body2012
JUDGMENT By Court.- This appeal is directed against the judgment of conviction and order of sentence dated 31.8.2004 and 8.9.2004 respectively passed by learned Additional District & Sessions Judge. Fast Track Court No. 1, Jamshedpur in Sessions Trial No. 229 of 2002, convicting the appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and also convicting him under Section 201 IPC and sentencing him to undergone RI for three years and to pay a fine of Rs. 3,000/- and in default thereof to undergone further imprisonment for one month. However, all the sentences ordered to be run concurrently. 2. The prosecution case in brief is that on 19.1.2002 Puran Chandra Basuki (PW 1) lodged a fardbeyan at about 9.20 a.m. along with his son PW 3 (Sagun Basuki) before police that dead body of his daughter Urmila's Kumari (deceased) aged about 20 years was bound thrown in the vacant land near the house of one Rajendra Prasad on the heap of stone chips and bricks. The statement was recorded near the dead body. The informant said that the deceased was a daily wager who used to go for work at about 7 a.m.. She was working under the appellant for last 3 years used to live with him most of the time. 30metime she did not return to her home and used to stay at the place of work, The Informant got the information about the death from the police. When he was coming to the police station, PW 4 and his brother PW 5 who were the known persons of the appellant called him and said that the appellant was keeping her (Urmila) for last three years as wife without marriage. PW's 4 and 5 further told him that on the previous day i.e. on 18.1.2002 when Urmila came to Tata for works, she went to the house of the appellant and later on at about 8 a.m. they saw the deceased going with the appellant on his TVS bike. PW 4 nd 5 further hold him that PW 4 asked the appellant as to whether he was taking Urmila. On this, the appellant replied that they were going to bring materials. PW 4 further told the informant that Urmila and the appellant both did not turn up for work for whole day. PW 4 nd 5 further hold him that PW 4 asked the appellant as to whether he was taking Urmila. On this, the appellant replied that they were going to bring materials. PW 4 further told the informant that Urmila and the appellant both did not turn up for work for whole day. PW 4 further told that informant that when he was working at one place, the appellant came to him at about 5 p.m. and told the Urmila was not well and therefore he requested PW 4 for helping him for taking her to his house to which PW 4 expressed his inability. On this the appellant who had come over a tempo in which deceased was lying proceeded ahead. The informant further stated that the friend of Urmila, namely, Jeetmuni Murmu (PW 6) also told him that the deceased was pregnant from the appellant. She also told him that the appellant always used to take her on his bike to the market and to his house and used to keep her to his house. The informant lastly alleged that the appellant had committee sexual assault with the deceased due to which she became pregnant. He persuaded her for abortion and forcibly administered medicine and finally killed her and threw her dead body for concealing the evidence. On such allegation the case was registered under Section 376, 302 and 201 IPC. However, the appellant has not been found guilty under Section 376 IPC, but has been found guilty under Sections 302 and 201 IPC as aforesaid. 3. Mr. Sanjay Jha, learned counsel appearing for the appellant submitted as follows. The conviction of the appellant is based on the story of last seen. In such a case of circumstantial evidence prosecution has failed to prove the motive. The prosecution has not proved that the deceased was pregnant with the appellant. There are vital contradictions in the prosecution case. PW's 4 and 5 did not support the story said to have been disclosed by them in the FIR, There was no occasion for PW 4 and 5 to remain present at the place where the dead body was recovered. Place of occurrence has not been clearly established by the IO. Some important witnesses have not been examined by the prosecution. The appellant has been falsely implicated in this case due to rivalry. 4. Place of occurrence has not been clearly established by the IO. Some important witnesses have not been examined by the prosecution. The appellant has been falsely implicated in this case due to rivalry. 4. On the other hand, counsel for the State, supported the impugned judgment. 5. The prosecution examined 7 witnesses PW 1 is the informant and hearsay witness. He, inter alia, said that from PW 6, he learnt that Unnila was pregnant with the appellant. PW 2 is the Doctor who conducted postmortem on the deceased. He found the following ante-mortem abrasions : 1 cm X 3 cm over left leg upper part; Multiple small abrasion over right elbow; 4 cm x 6 cm over right side back of chest lower part; 1 cm over left side lower lip inner aspect. He sent the vaginal discharge for microscopic and chemical examination to detect the abortificient used. On microscopic examination of vaginal swab, epithelial cells were present, but no spermatozoa was found. On dissection of uterus enlarged and male dead foetus came out. The approximate age of fetus was 22 to 24 weeks. In the opinion of Doctor, the cause of death was asphyxia as a result of soft pressure over mouth and nose. According to the Doctor said injuries were caused by hard and blunt substance. The time elapsed since death was within 24 hours approximately. Such time of death indicated by the Doctor matches with the prosecution case. In the cross-examination, the Doctor further said that for termination of pregnancy some method was applied. PW 3, who is brother of Umila, is hearsay witness. He made similar statement like his father PW 1. The informant lodged his fardbeyan on the basis of informant given to him by PW 4 and 5. However, it appears that PW 4 and 5, who are also the attesting witness of FIR, have not supported the story said to have been narrated by them to the informant as per the fardbeyan. They simply said that the appellant and the deceased used to work together. They said that they saw the dead body. PW 4 have said that he saw the appellant with Urmila and told the informant about it. Similarly PW 5 also said that he did not see the appellant and Urmila together and he had no occasion to talk with the informant. PW 6 Jeetmuni Murmu is the main witnesses. They said that they saw the dead body. PW 4 have said that he saw the appellant with Urmila and told the informant about it. Similarly PW 5 also said that he did not see the appellant and Urmila together and he had no occasion to talk with the informant. PW 6 Jeetmuni Murmu is the main witnesses. She, inter alia, supported the prosecution case. She said that on the date of occurrence, she along with Urmila had gone to work together. She used to work with the appellant. She told her prior to the occurrence that she was carrying pregnancy of the appellant and she was insisting the appellant to marry her, but the appellant did not agree. She further said that on the date of occurrence, she saw the appellant and Urmila working together. In the evening, the appellant took her on his TVS bike to his house, but in the next morning the dead body of Urmila was found. The appellant used to keep Urmila in his house. She further told that she informed the parents of Urmila about pregnancy on which her mother told that if the appellant keeps her, the pregnancy may not be disturbed. PW 7 is the IO he supported the, prosecution case. He has established the place of occurrence. 6. Thus from the materials on record, the position which emerges against the appellant are as follows. He was a mason. Urmila used to work with him. On several occasions she used to remain with the appellant in his house. Such relationship was continuing for about 3 years. At least PW 6 saw the appellant with the deceased in the evening hours going together. In the next morning her dead body was found. The Doctor found some abrasions on her body caused by hard and blunt substance. He also opined that the cause of death was asphyxia as a result of soft pressure over mouth and nose. Urmila was carrying a pregnancy of about 22-24 weeks. The Doctor found that for termination of pregnancy some method was applied. The Doctor found some abrasions on her body caused by hard and blunt substance. He also opined that the cause of death was asphyxia as a result of soft pressure over mouth and nose. Urmila was carrying a pregnancy of about 22-24 weeks. The Doctor found that for termination of pregnancy some method was applied. It is true that PW 4 and 5 have not supported the story, said to have been disclosed by them to the informant as disclosed by the informant in his fardebeyan, but it may be noted that the fardebeyan is based on the hearsay from PW 4 and 5 that they saw the appellant was carrying Urmila in a tempo for treatment. Only because PW 4 and 5 said that they did not narrate such story as narrated by the informant in the fardebeyan, the prosecution case cannot be disbelieved. Moreover, no such question was put to PW 4 and 5 or the IO as to whether PW 4 and 5 made a disclosure said to have been disclosed by them before the informant in his fardbeyan. In these circumstances, it cannot be said the there is vital contradictions in the fardbeyan and in the evidence of PW 4 and 5. PW 6 has categorically said that in the evening, she saw the appellant and Urmila going together on the bike of the appellant. There is no reason to disbelieve PW 6. All the PWs have clearly said that the appellant and Urmila Devi used to work together and used to live together on several occasions. It is submitted that in the present case based on the last seen theory, motive has not been proved by prosecution. From the evidence of PW 6 who happens to be friend of Urmila. appears that after Urmila became pregnant from the appellant, she insisted for marriage but the appellant was not agreeable. There is nothing on record to indicate false implication of the appellant. No questions were asked from any witness on the defence of false implication due to business rivalry, take by the appellant in his examination under Section 323 Cr PC. On the basis of the aforesaid submission made on behalf of appellant, the prosecution case cannot be brushed aside. There is nothing on record to indicate false implication of the appellant. No questions were asked from any witness on the defence of false implication due to business rivalry, take by the appellant in his examination under Section 323 Cr PC. On the basis of the aforesaid submission made on behalf of appellant, the prosecution case cannot be brushed aside. In our opinion, non-examination of Rajendra Prasad near whose house, the dead body was recovered, or the owner and staffs of Suman Hotel or the tempo driver has not adversely affected the case of the prosecution in the facts and circumstances of the case as noticed above. 7. Mr. Jha, appearing for the appellant, referred to the judgment reported in (2009) 2 SCC (Cri) 298 Kusuma Ankama Rao v. State of A.P on the last seen theory. In our opinion this decision instead of helping the appellant, to some extent goes against him. He also referred to a judgment reported in (2009) 3 SCC (Cri) 1111 State of U.P. v. Ram Balak and another. This case is not applicable in the present case as in that case there was no evidence to show that the accused were last seen in the company of deceased and they were merely seen near the place of incident. Similarly the other judgment in the case of Balu Mian alias Sk. Bablu v. State of Jharkhand. 2012 (1) East Cr C 81 (Jhr) is also not applicable to the facts and circumstances of the present case. 8. After carefully going through the materials on record and hearing the parties at length, we are not persuaded to take a different view than what has been taken by the trial Court in convicting the appellant. In our opinion, the prosecution has proved its case against the appellant, beyond all reasonable doubt. In the result, the conviction and sentence of the appellant awarded by the trial Court is hereby affirmed and the appeal is, accordingly, dismissed. Appeal dismissed.