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Jharkhand High Court · body

2014 DIGILAW 730 (JHR)

Kalia Soren v. State of Jharkhand

2014-07-15

D.N.PATEL, P.P.BHATT

body2014
JUDGMENT D.N. Patel, J. 1. Instead of hearing an Interlocutory Application under Section 389 Cr.P.C., the learned counsel for both sides are ready for final hearing of this criminal appeal and upon their request, this criminal appeal is taken up for its final hearing looking to fourteen years custody of accused. 2. The present appeal has been preferred by the appellant-accused against the judgment of conviction dated 21st November 2003 and order of sentence dated 22nd November, 2003 passed by the 3rd Additional Sessions Judge, (FTC), Jamtara in Sessions Case No. 238/2000(21 of 2003), whereby the present appellant-accused has been punished for an offence under Section 302 of the India Penal Code for rigorous imprisonment for life and also this appellant has been convicted and sentenced for two years rigorous imprisonment under Section 201 of the Indian Penal Code and no fine has been imposed. Against this judgment of conviction and order of sentence, the present appeal has been preferred. 3. Case of prosecution:- It is the case of the prosecution that the deceased Chatamuni Marandi was not traceable from 2.2.2000 and she was missing. Her dead body was found out by P.W.-7-informant, Choukidar of the village. Her dead body was found on 6.2.2000 and P.W.-7 lodged the F.I.R on 6.2.2000 for murder of Chatamuni Marandi, whereas the dead body was partly eaten away by the animals. P.W.-7 put the criminal law in motion being an informant. The offence was registered at Nala Police Station in the District of Jamtara. Statements of several witnesses were recorded and the chargesheet was filed against this appellant-accused and the Sessions Case was committed being Sessions Case No. 238/2000(21/2003) before the Sessions Court. Depositions of 13 witnesses were given by the prosecution and this appellant has been convicted for life imprisonment for the murder of Chatamuni Marandi and the appellant was also punished for causing disappearance of evidence of offence for 2 years rigorous imprisonment under Section 201 IPC and both the sentences were ordered to run concurrently. 4. Counsel for both the sides have submitted that the following is the narration of the prosecution witnesses:- Sl. 4. Counsel for both the sides have submitted that the following is the narration of the prosecution witnesses:- Sl. No. Prosecution witnesses Name of the prosecution witnesses Summary 1 P.W.-1 Tarapado Rana Punch Witness of Inquest Panchnama 2 P.W-2 Subodh Mandal Punch Witness of Inquest Panchnama 3 P.W.-3 Parimal Rana Seizure List Witness 4 P.W.-4 Satyanan Manna Seizure list witness 5 P.W.-5 Hapani Marandi Mother of the deceased, who stated that the appellant Kalia Soren was seen in the village of the deceased on 2.2.2000. 6 P.W.-6 Nandlal Marandi Uncle of the deceased who stated that appellant was seen in the village of the deceased. 7 P.W.-7 Ghanshyam Rana Informant- Choukidar of the village- Godadiyal, who found the dead body of the deceased and he is a villager. 8 P.W.-8 Gopal Marandi Father of the deceased, who stated that the appellant was seen in the village of the deceased. l 9 P.W.-9 Dr. Srinath Mishra This witness is a doctor, who carried out postmortem of the deceased(Ext.-5) and there were injuries upon the body of the deceased. 10 P.W.-10 Amulya Rana Villager- Hostile witness. 11 P.W.-11 Madhav Chand Rana Villager- Hostile witness. 12 P.W.-12 Aiyan Chandra Manjhee Inquest Punchnama witness 13 P.W.- 13 Tahir Hussain Peon of the Advocate, though he has no knowledge but he has proved the signature of the I.O. upon Fardbeyay as well as upon F.I.R. Though this witness is not knowing who is the Choukidar of the village but he has also proved his signature on Fardbeyan. Though in his cross- examination, he has pleaded ignorance about the work of the prosecution witnesses, especially of P.W.-7 and the police. 5. Counsel for the appellant has submitted that the prosecution has failed to prove the offence of murder of deceased- Chatamuni Marandi, committed by this appellant beyond reasonable doubt. In fact, there is not an iota of evidence on record which proved the offence of murder committed by this appellant. This aspect of the matter has not been properly appreciated by the learned trial court. Counsel for the appellant also submitted that P.Ws.-5, 6, 7 and 8 are the important witnesses in this case; whereas, P.Ws. 10 and 11 are the hostile witnesses. P.W.-9 is a Doctor and P.Ws. 1, 2, 3, 4 and 12 are the witnesses of seizure list and the inquest panchnama. They have not proved the murder committed by the appellant. Counsel for the appellant also submitted that P.Ws.-5, 6, 7 and 8 are the important witnesses in this case; whereas, P.Ws. 10 and 11 are the hostile witnesses. P.W.-9 is a Doctor and P.Ws. 1, 2, 3, 4 and 12 are the witnesses of seizure list and the inquest panchnama. They have not proved the murder committed by the appellant. P.W.-13 is useless witness because he is thoroughly ignorant about the fact of the case, as he is a peon of an Advocate and unnecessarily he has been examined by the prosecution and wrongly exhibit number has been given to the Fardbeyan and the F.I.R.. There is no evidentiary value of P.W.-13. It is also submitted by the learned counsel for the appellant that neither P.W.-5 nor P.W.-6 nor P.W.-7 nor P.W.-8 have ever stated in their deposition before the trial court that they have seen this appellant lastly in the company of the deceased. There is no eye witness of the incident at all. The whole case of the prosecution is based upon “Last Seen Together Theory”. It is also submitted by the learned counsel for the appellant that even if the case of the prosecution is accepted at the highest, the prosecution has proved that the appellant was moving in the village where the deceased was residing, but nowhere, any prosecution witness has stated that the deceased was also in the company of the appellant. Thus, the “Last Seen Together Theory” is not proved in this case. Even in Paragraph-31 of the judgment of the trial court, it has never been stated that the prosecution has proved that the appellant was lastly seen in the company of the deceased. If the appellant is moving separately in the village without the company of the deceased, the charge of murder cannot be said to have been proved and that too beyond reasonable doubt against this appellant. This aspect of the matter has not been properly appreciated by the learned trial court and hence also the judgment of conviction and order of sentence passed in Sessions Case No. 238/2000(21 of 2003) deserves to be quashed and set aside. This appellant has remained in judicial custody approximately last 14 years and, therefore, he may be forthwith released from the judicial custody. 6. This appellant has remained in judicial custody approximately last 14 years and, therefore, he may be forthwith released from the judicial custody. 6. We have heard the learned A.P.P. who has submitted that no error has been committed by the learned trial court in appreciating the evidence on record. The prosecution has proved the offence of murder committed by this appellant beyond reasonable doubt. It is submitted by the learned APP that there is a cogent and convincing evidence on record especially given by P.Ws.1 to 9 and by P.Ws. 12 and 13. The prosecution witnesses, especially P.Ws. 5, 6 and 8 have clearly stated that this appellant wanted to marry with the deceased and he was always giving threat if the deceased is not marrying with him, he will murder her and on 2.2.2000 this appellant was also seen by P.Ws. 5, 6 and 8 in a village- Gadadiyal in the district of Jamtara, where the deceased girl was staying. This aspect of the matter remained intact even in a cross-examination of this witness. Moreover, there are several injuries upon the body of the deceased as stated by P.W.9- Dr. Srinath Mishra, who carried out postmortem of the deceased, which is Exhibit-5. Thus, there is a cogent and convincing evidence before the trial court and, therefore, this appellant has rightly been convicted and punished for the offence of the murder of the deceased as well as for the offence of causing disappearance of the evidence of the offence under Section 201 IPC. Hence, this appeal may not be entertained by this Court. 7. Having heard the learned counsel for both the sides and looking to the evidences on record, it appears that P.W.7- Choukidar of village- Gadadiyal in the district of Jamtara has found out the dead body of the deceased-Chatamuni Marandi on 6.2.2000 and the Fardbeyan was given by this Choukidar of the village-P.W.-7 before the Nala Police Station in the district of Jamtara and FIR was registered on 6.2.2000. The dead body was identified and the statement of several witnesses were recorded under Section 161 Cr.P.C. including the mother of the deceased, uncle of the deceased, father of the deceased and other villagers as inquest panchnama as well as seizure list witnesses. The dead body was identified and the statement of several witnesses were recorded under Section 161 Cr.P.C. including the mother of the deceased, uncle of the deceased, father of the deceased and other villagers as inquest panchnama as well as seizure list witnesses. The chargesheet was also filed under Section 173 Cr.P.C. and the case was committed to the court of Sessions being Sessions Case No. 238/2000(21/2003) and on the basis of the evidence of P.Ws. 1 to 13, as stated hereinabove, this appellant has been convicted for the offence punishable under Section 302 IPC for life imprisonment and he is also punished rigorous imprisonment for two years under Section 201 IPC. 8. Thus, looking to the case of the prosecution, P.Ws- 5, 6, 7 and 8 are the important witnesses and their depositions will be read along with the medical evidence given by P.W. 9- Dr. Srinath Mishra and also along with the deposition given by Punch Witnesses of the inquest Punchnama and the seizure Panchanama. Looking to the deposition given by P.W.5, who is the mother of the deceased- Chatamuni Marandi, she has clearly stated that this appellant wanted to marry with the deceased and he was also giving thereat that if the deceased is not marring with him, he will commit the murder. Looking to the deposition of P.W.5 and her cross-examination, she stated that on 2.2.2000, the dead body of the deceased was found missing and she has seen this appellant in her village Gadadiyal where Chatamuni Marandi was also residing with her. Thus, this appellant was found in the village where the deceased was staying on 2.2.2000. This witness has never stated in her Examination-in-Chief or in her cross-examination that she has seen this appellant in the company of the deceased. Thus, P.W.-5 has never stated that the appellant was lastly seen in the company of the deceased. Thus the theory of “Last Seen Together” is not proved by the prosecution. 9. We have also scrutinized the deposition given by P.W.-6 in detail because he is a close relative of the deceased (Uncle of the deceased). Looking to his deposition before the learned trial court, he has also stated that this appellant was found in the village on 2.2.2000 where Chatamuni Marnadi was staying and nothing beyond this. 9. We have also scrutinized the deposition given by P.W.-6 in detail because he is a close relative of the deceased (Uncle of the deceased). Looking to his deposition before the learned trial court, he has also stated that this appellant was found in the village on 2.2.2000 where Chatamuni Marnadi was staying and nothing beyond this. This witness has not proved the fact that the deceased was also seen in the company of the deceased. Thus, the “Last Seen Together Theory” has not been proved by P.W.-6. 10. Looking to the deposition of P.W.-8, father of the deceased, it appears that he has stated similar deposition as of P.Ws. 5 and 6. This appellant was seen in the village -Gadadiyal in the District of Jamtara on 2.2.2000. Thus, from the star witnesses of the prosecution, it appears that they have proved the presence of this appellant in the village where the deceased was staying and nothing beyond that. Not a single witness has stated that the deceased was found in the company of this appellant. Thus, the prosecution has failed to prove the important circumstance, namely, “Last Seen Together”. There is no eye witness of the incident of the murder. The whole case of the prosecution is based on circumstantial evidence and the major circumstance- “Last Seen Together Theory”, but there is no evidence on record of “Last Seen Together”. This aspect of the matter has not been properly appreciated by the learned trial court. It ought to have been kept in mind that if the appellant was independently moving in the village and the deceased was never in the company of the appellant, as per the prosecution witnesses, theory of “Last Seen Together” cannot be applied in this set of circumstances and if this theory is not applicable, then there is no direct evidence in the facts and circumstances of the case. Looking to the question asked while recording the statement of the accused under Section 313 Cr.P.C., not a single question is asked by the learned trial court to the accused that he was found lastly in the company of the deceased. 11. In the facts and circumstances discussed above, this criminal appeal is allowed and the impugned judgment of conviction dated 21.11.2003 and order of sentence dated 22.11.2003 passed by the 3rd Addl. 11. In the facts and circumstances discussed above, this criminal appeal is allowed and the impugned judgment of conviction dated 21.11.2003 and order of sentence dated 22.11.2003 passed by the 3rd Addl. Sessions Judge (F.T.C.), Jamtara against this appellant in Sessions Case No.238 of 2000 (21 of 2003) is quashed and set aside. The appellant is acquitted from the charges levelled against him. Since the appellant, namely, Kalia Soren is in judicial custody, he is directed to be released forthwith, if not wanted in any other case. 12. As the Criminal Appeal is allowed, I.A. No. 2263/2014 also stands disposed of.