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2014 DIGILAW 175 (JHR)

Ganauri Singh v. State of Jharkhand

2014-01-28

AMITAV K.GUPTA, PRASHANT KUMAR

body2014
ORDER This appeal is directed against the judgment of conviction and order of sentence dated 22.05.2001 and 23.05.2001 respectively passed by 5th Additional Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 343 of 1993,whereby and where under, he convicted the appellant under section 302/201 of the Indian Penal Code for committing murder of his wife Gunia Devi and sentenced him to under go imprisonment for life for the offence under section 302 of the Indian Penal Code and also sentenced to under to R.I. for two years for the offence under section 201 of the Indian Penal Code and directed that both the sentences shall run concurrently. 2. The case of prosecution as per Fardbeyan of Manrup Singh (P.W.1) that deceased Gunia Devi was married to the appellant seven years ago. It is further stated that appellant was always committing crime like theft and dacoity, which was protested by the deceased Gunia Devi. It is further stated that in connection with a dacoity case, appellant was taken into custody and when he returned, deceased again requested him for leaving such bad habits, upon which appellant assaulted her. It is further stated that thereafter, deceased left her matrimonial house and came to her parental house. It is stated that on 11.10.1991 appellant came to the house of informant and assaulted deceased and questioned why she is grazing bullock of her father. It is then stated that on 12.10.1991, he took the deceased in the forest on the pretext of bringing wood for construction of house. It is further stated that informant's daughter-in-law namely, Manjura Devi, Nanka Singh and Roshwa Kumari had seen the appellant going with the deceased towards forest. It is stated that on that day deceased did not return, whereupon informant and his family members searched her. It is stated that on 16.10.1991, informant and his co-villagers went to the forest, where they found dead body of deceased. Thereafter, matter reported to the police. 3. On the basis of aforesaid information, police instituted Latehar P.S. case no.155 of 1991 dated 18.10.1991 under section 302/201 of the Indian Penal Code and took investigation. During investigation, police prepared inquest report and sent the dead body for postmortem examination. During the investigation, police recorded statement of witnesses and after completing investigation, submitted charge-sheet against the appellant under sections 302/201 of the Indian Penal Code. During investigation, police prepared inquest report and sent the dead body for postmortem examination. During the investigation, police recorded statement of witnesses and after completing investigation, submitted charge-sheet against the appellant under sections 302/201 of the Indian Penal Code. It appears that cognizance of the offence taken and then case committed to the court of session , as the offence under section 302 of the Indian Penal Code is exclusively triable by a court of Sessions. 4. It then appears that learned Additional Sessions Judge, Palamau framed charges against the appellant under sections 302/201 of the Indian Penal Code and explained the same to the appellant, to which he pleaded not guilty and claimed to be tried. Thereafter, prosecution examined altogether 13 witnesses. The prosecution also brought on record Ext. 1 series (signatures of seizure list witnesses), Ext.2 series (signature of witnesses on inquest report), Ext.3(Fardbeyan), Ext.4 (formal F.I.R.), Ext.5 (seizure list), Ext.6 (carbon copy of inquest report) and Ext.7 (postmortem report). It appears that after considering the evidence available on record, learned court below convicted and sentenced the appellant as stated above. Against that present appeal filed. 5. Sri Ravi Prakash, learned counsel appearing for the appellant submitted that there is no eye witnesses of the occurrence. He then submitted that the appellant had been convicted in this case on the basis of circumstantial evidence and the only circumstance against the appellant is that he was last seen with the deceased. He further submitted that all the circumstances relied by the learned court below has not been proved beyond the shadow of all reasonable doubt. Thus, the conviction and sentence of the appellant is liable to be set aside. 6. On the other hand, learned Addl.P.P. submits that there are strong circumstantial evidences against the appellant and the learned court below rightly relied on them and convicted the appellant. Thus, no interference required. 7. Having heard the submissions, we have gone through the records of the case. In the instant case, homicidal death of the deceased, Gunia Devi, has not been challenged. Thus, only question remains to be decided in this case as to whether appellant has any hand in the commission of present crime or not ? 8. It is an admitted position that there is no eye witness of the occurrence. The entire case of the prosecution hinges on the circumstantial evidence. Thus, only question remains to be decided in this case as to whether appellant has any hand in the commission of present crime or not ? 8. It is an admitted position that there is no eye witness of the occurrence. The entire case of the prosecution hinges on the circumstantial evidence. From perusal of impugned judgment, we find that the learned court below mainly relied upon three circumstances for convicting the appellant i.e. (i) Motive (ii) Conduct of the accused. (iii) The accused was lastly seen with the deceased armed with a Tangi. 9. From perusal of the record, we find that first two circumstances i.e. motive and conduct of the accused are inter-linked with each other. It is alleged that the appellant indulged in various crime, such as, theft and dacoity and deceased used to protest about the conduct of the appellant. It is alleged that appellant was annoyed with the deceased and because of that he committed present crime. In this respect, we find that prosecution had not brought any document to show that the appellant was prosecuted for any criminal case and/or was sent to jail for commission of any crime. The Investigating Officer was examined in this case as P.W.11. He had not stated that appellant was involved in any other criminal case. Under the said circumstance, story narrated by the informant (P.W.1) and other prosecution witnesses that appellant was involved in criminal cases and deceased used to protest about his criminal conduct is not acceptable. Thus, first two circumstances i.e. Motive and conduct of the appellant has not been proved by the prosecution beyond the shadow of all reasonable doubt. 10. Now, coming to the third circumstance i.e. appellant was last seen with the deceased, it is worth mentioning that prosecution tried to prove aforesaid circumstance by examining number of witnesses, but from perusal of evidences of P.W.2, P.W.3, P.W.4, P.W.6 and P.W.9, it appears that they are hearsay witnesses. Though P.W.1 stated that he saw the appellant going with the deceased towards forest, but from perusal of cross-examination of P.W.5, we find that at the relevant time he was not present in his house, rather he returned to his house in the evening. Under the said circumstance, statement of P.W.1 does not inspire confidence. 11. Though P.W.1 stated that he saw the appellant going with the deceased towards forest, but from perusal of cross-examination of P.W.5, we find that at the relevant time he was not present in his house, rather he returned to his house in the evening. Under the said circumstance, statement of P.W.1 does not inspire confidence. 11. Now, coming to the evidences of P.W.5 and P.W.8, we find that they stated that appellant took the deceased in the forest armed with an Axe. However, P.W.5 in her cross-examination had categorically stated that the deceased went to the forest along with the appellant out of her own sweet will and at that time their relation was cordial. Under the said circumstance, even if deceased went with appellant in the forest, there is no abnormality in it, because they are husband and wife and had gone to the forest for bringing wood for construction of house. Thus, in the absence of any motive, it cannot be presumed that the appellant has committed present crime. 12. In that view of the matter, only because the appellant was last seen with the deceased, in our view, it cannot be presumed that the appellant and none else had committed present crime. 13. In our considered view, linking evidences are missing in this case, therefore, we are inclined to give benefit of doubt to the appellant. Thus, we conclude that prosecution has not proved the charges levelled against the appellant beyond the shadow of all reasonable doubt. Hence, the impugned judgment of conviction and order of sentence cannot be sustained in this appeal. 14. In the facts and circumstances discussed above, this appeal is allowed. The impugned judgment of conviction dated 22.05.2001 and order of sentence dated 23.05.2001 passed by Sri Abdul Samad, learned Vth Additional Sessions Judge, Palamau at Daltonganj in Session Trial No.343 of 1993 is hereby set aside. Appellant is acquitted from the charges levelled against him. It appears that the appellant has already been released on 19.10.2011 by the order of Home Department, thus no release order required to be issued.