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2014 DIGILAW 34 (JHR)

Basi Deogam v. State of Jharkhand

2014-01-07

AMITAV K.GUPTA, PRASHANT KUMAR

body2014
JUDGMENT : By Court: - This appeal is directed against the judgment of conviction dated 28.03.2003 and order of sentence dated 29.03.2003 passed by 3rd Additional Sessions Judge, Chaibasa in Sessions Trial No. 102 of 2001, whereby and whereunder he convicted the appellant under Section 302 of the I.P.C. for committing murder of her husband Bamia Sundi and sentenced her to undergo imprisonment for life. 2. The case of prosecution lies in a narrow compass. It is stated that on 04.07.2000, informant received information from the Village Dakua that his son Bamia Sundi had been killed in his in-laws house. Thereafter, he went there and found the dead body of his son in front of the door of his in-laws house. It is also stated that wife of deceased namely Basi Deogam (appellant) was sitting by the side of dead body. On query, she disclosed that she killed the deceased. It is further stated that Village Munda also arrived at the place of occurrence. Thereafter informant (P.W.-1) went to the police station along with Village Munda (P.W.-2) and Dakua and informed the police about the occurrence. 3. On the basis of aforesaid information, Chaibasa Muffasil P.S. Case No. 48 of 2000 dated 04.07.2000 instituted under Section 302 of the I.P.C. and police took up investigation. During investigation, police prepared Inquest Report. Thereafter sent the dead body of deceased for post-mortem examination. It also appears that in course of investigation, police seized an axe and prepared Production – cum -seizure list (Ext.-5). The Investigating Officer (I.O.), after completing the investigation, submitted charge-sheet against the appellant under Section 302 of the I.P.C. Accordingly, cognizance taken and the case committed to the court of Sessions for trial. 4. After receiving the record, the present Sessions Trial instituted and the case record transferred in the court of 3rd Additional Sessions Judge, Chaibasa for trial, who vide order dated 21st June, 2001 framed charge against the appellant under Section 302 of the I.P.C., to which she pleaded not guilty and claimed to be tried. 5. In order to establish charge against the appellant, the prosecution examined altogether five (05) witnesses. The prosecution also brought on record written report (Ext.-1), Inquest Report (Ext.-4), Production-cum-Seizure List (Ext.-5) and Post-mortem Report (Ext.-6) in support of its case. 5. In order to establish charge against the appellant, the prosecution examined altogether five (05) witnesses. The prosecution also brought on record written report (Ext.-1), Inquest Report (Ext.-4), Production-cum-Seizure List (Ext.-5) and Post-mortem Report (Ext.-6) in support of its case. After close of the case of prosecution, the statement of appellant recorded under Section 313 of the Cr.P.C. in which her defence is of total denial. The learned court below after considering the arguments and evidences available on record convicted and sentenced the appellant as stated above, against that present appeal filed. 6. While assailing the impugned judgment, Sri Rajesh Kumer, learned counsel for the appellant, submits that there is no eye-witness of the occurrence. The entire case against the appellant is based on two circumstances i.e.:- (i) Extra-judicial confession of appellant before P.W.-1; (ii) Recovery of axe by the police on the confession of appellant. He submits that aforesaid circumstances had not been proved beyond the shadow of all reasonable doubts. He further submits that father-in-law of appellant (P.W.-1) had categorically stated that he knows about the occurrence only from Village Munda (P.W.-2). Learned counsel then pointed out that P.W.-2 in his deposition had stated that the appellant had not disclosed anything before him about the occurrence. Thus, absolutely there is no evidence to show that the appellant confessed her guilt before P.W.-1 and P.W.-2. He further pointed out that even assuming that she confessed her guilt before P.W.-1 (father-in-law), then also aforesaid circumstance cannot be taken into account for convicting the appellant, because she has not been given any opportunity to explain the same. He further submits that while examining the appellant under Section 313 of the Cr.P.C. the learned court below asked the appellant to explain about the confession made by her before the mother-in-law, but the mother-in-law had not been examined. Under the said circumstance, the appellant is entitled to be acquitted on that very ground. It is further submitted that the alleged production of axe had not been proved beyond shadow of all reasonable doubt. It is submitted that P.W.-3, who is a seizure list witness, had stated that the axe recovered from the house of appellant. He had not stated that the said axe produced by the appellant. It is further submitted that the alleged production of axe had not been proved beyond shadow of all reasonable doubt. It is submitted that P.W.-3, who is a seizure list witness, had stated that the axe recovered from the house of appellant. He had not stated that the said axe produced by the appellant. Sri Kumar further submitted that in Ext.-5 the I.O. has not stated that the axe was produced by the appellant and / or recovered on the confessional statement of the appellant. Therefore, he submits that the statement of I.O. (P.W.-4) cannot be made basis for convicting the appellant. 7. On the other hand, Sri Shekhar Sinha, learned Additional P.P. submits that appellant had confessed her guilt before the villagers and produced the axe used in the commission of crime. Thus, she has been rightly convicted and sentenced by the learned court below. 8. Having heard the submissions, we have gone through the record of the case. Statements of P.W.-5 (Doctor) read with post-mortem report (Ext.6) and Inquest Report (Ext.-4) shows that the deceased received incised wound near his left ear and wounds on his chest which resulted into fracture of his 5th, 6th, 7th & 8th ribs. In the opinion of doctor deceased died due to above injuries. Thus, in this case prosecution had proved the homicidal death of deceased. 9. Now the question arose for determination in this appeal as to whether appellant had any hand in the commission of present crime. This brings us to consider other evidences. Admittedly, there is no eye-witness of the occurrence and entire case hinges on the circumstantial evidence. In the instant case, prosecution has relied upon two circumstances: (i) Extra-judicial confession of appellant before the father-in-law (P.W.-1); (ii) Recovery of axe by the I.O. on the confession of the appellant. 10. It is well settled that in a case of circumstantial evidence the prosecution requires to prove all the circumstances beyond the shadow of all reasonable doubt and shows that the circumstances relied by it indicates that only the accused and none other had committed the crime. 11. With a view of prove the circumstance no. (i) i.e. extra-judicial confession, the prosecution relied upon the evidence of P.W.-1 and P.W.-2. 11. With a view of prove the circumstance no. (i) i.e. extra-judicial confession, the prosecution relied upon the evidence of P.W.-1 and P.W.-2. P.W.-1, who is father-in-law of the appellant, had categorically stated that when he reached near the place of occurrence, he asked about the occurrence from the Village Munda (P.W.-2), who disclosed that the appellant had killed the deceased. During the cross-examination, he further states that he know about the occurrence only from the Village Munda. Thus, this witness has not stated that the appellant confessed her guilt before him. Now, coming to the P.W.-2 Village Munda, it is relevant to mention that he in his examination-in-chief had not stated that appellant confessed her guilt before him. During cross-examination at paragraph no. 5, he categorically stated that Basi Kuie (appellant) has not stated anything about the occurrence before him. Under the said circumstances, I find that both aforesaid witnesses P.W.-1 & P.W.-2 had not stated that the appellant confessed her guilt before them. 12. In this connection, it is also relevant to mention that the learned court below, while examining the appellant under Section 313 Cr.P.C., had asked her to explain as to whether she confessed her guilt before the mother-in-law. It is worth mentioning that mother-in-law of the appellant has not been examined in this case as witness. Thus, what was the basis for asking this question has not been known. Under the aforesaid circumstances, we find that the circumstance no. (i) which was relied by the learned court below for convicting the appellant has not been proved beyond the shadow of all reasonable doubt. 13. Now, coming to the circumstance no. (ii) i.e. recovery of axe used in the commission of the crime is concerned, prosecution mainly relied upon the evidences of P.W.-2 and P.W.-4 (I.O.) who stated that appellant produced the axe and on her production the same was seized. But this fact has not been supported by P.W.-3, who is one of the seizure list witness. This witness stated that the aforesaid axe recovered from the house of appellant. He had not stated that aforesaid recovery made on the confession of appellant. The statement of P.W.-2 & P.W.-4 did not find support from the Production – cum - seizure list (Ext.-5). In Ext.-5, it is nowhere mentioned that the said axe seized on being produced by the appellant. He had not stated that aforesaid recovery made on the confession of appellant. The statement of P.W.-2 & P.W.-4 did not find support from the Production – cum - seizure list (Ext.-5). In Ext.-5, it is nowhere mentioned that the said axe seized on being produced by the appellant. Thus, second circumstance also had not been proved beyond the shadow of all reasonable doubt. 14. Since, the aforesaid two circumstances has not been proved beyond the shadow of all reasonable doubt, therefore, we are of the view that the said circumstances cannot become the basis for convicting and sentencing the appellant. 15. We also find that the learned court below has relied upon evidence of P.W.-4 (I.O.) for concluding that appellant had motive for committing the present crime i.e. the deceased had illicit relation with a woman. In this connection, we find that the evidence of P.W.-4 is hearsay, which cannot be accepted under the law. There is no direct evidence on record to prove aforesaid fact. Under the said circumstance, the aforesaid finding of the court below that appellant has motive for commission of present crime is illegal. 16. In view of the discussions made above, we find serious illegality and irregularities in the impugned judgment of the court below. Thus, the same cannot be sustained in this appeal. 17. In the result, this appeal is allowed. The impugned judgment of conviction dated 28.03.2003 and order of sentence dated 29.03.2003 passed by learned 3rd Additional Sessions Judge, Chaibasa in Sessions Trial No. 102 of 2001 is set aside. The appellant is acquitted from the charge levelled against her. The appellant, Basi Deogam, who is in jail custody, is directed to be released forthwith, if not wanted in connection with any other case.