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2015 DIGILAW 823 (JHR)

Mahadeb Singh v. State of Jharkhand

2015-07-20

PRAMATH PATNAIK, R.R.PRASAD

body2015
JUDGMENT : By Court :- This appeal is directed against the judgment of conviction dated 18th May, 2005 and the order of sentence dated 19th May, 2005 passed by the then learned Additional Sessions Judge, Ghatsila in S.T. No.225 of 2003, whereby and whereunder the court, having found the appellant guilty for committing murder of the deceased -Sashidhar Singh @ Petu and also for causing disappearance of the evidence of the murder, convicted him for the offence punishable under Sections 302 and 201 of Indian Penal Code and sentenced him to undergo imprisonment for life for the offence under Section 302 of the Indian Penal Code and further to undergo rigorous imprisonment for three years for the offence under Section 201 of the Indian Penal Code. Both the offences were ordered to be run concurrently. 2. Case of the prosecution, as has been projected in the fardbeyan (Ext.1/1) of the informant-Shivcharan Singh (P.W.9) is that Sashidhar Singh @ Petu was his younger brother, who had illicit relation with one Geeta Singh, widow of late Sanatan Singh. On 13.03.2003, at about 8.00 P.M., he left home by saying that he is going to the house of Geeta Singh but he did not return in the night. Therefore, in the morning, informant set out in search of his brother but did not find. On the next day, in course of search, when the informant came to near a well belonging to Kali Dutta, he could find blood spots over the wall of the well and, therefore, he suspected that his brother might have been killed by this appellant (son of Geeta Singh), as the appellant was never liking that illicit relation in between the deceased and his mother continue. 3. Thereupon, the informant came to Ghatsila Police Station on 16.03.2003 where he at about 6.00 A.M. gave his fardbeyan (Ext.1/1), which was recorded by N.N. Pandey, Officer-in-Charge of Ghatsila Police Station. On the basis of the said fardbeyan, a formal FIR (Ext.4) was drawn. Thereafter, the investigation was taken up by Nunu Misir (P.W.11), who recorded the confessional statement of the appellant and then got the dead body out of the well. After holding autopsy on the dead body, he prepared an inquest report. Meanwhile, the I.O. also seized weapon used in the commission of murder under the seizure list (Ext.-6). Thereafter, the investigation was taken up by Nunu Misir (P.W.11), who recorded the confessional statement of the appellant and then got the dead body out of the well. After holding autopsy on the dead body, he prepared an inquest report. Meanwhile, the I.O. also seized weapon used in the commission of murder under the seizure list (Ext.-6). Thereupon, the dead body was sent for postmortem examination, which was conducted by Dr. Niranjan Minz (P.W. 10), who, on holding autopsy, did find the following injuries on the person of the deceased:- I. Abrasions:- (i) 42 cm x 35 cm on the front of chest and adjoining upper part of the abdomen. (ii) 15 cm x 7- ½ cm on left side of face. II. Lacerated wounds:- (i) 4 cm x 2 cm x scalp deep on the left side forehead. (ii) 17 cm x 5 cm x bone deep on right occipital region. III. Stab wound:- (i) 3- ½ cm x 2 cm x cavity deep on the back of abdomen on midline. The weapon penetrated into the abdominal cavity and entered into the left kidney ½ cm. deep. (ii) 3 cm x 2 cm x soft tissues on left abdomen back. There was fracture of occipital bone measuring 6 cm x 5 cm area with crack fracture of right perito temporal wound. Fracture of left fronto parietal bone measuring 7 cm x 4 cm area with diffused contusion of the left fronto parietal scalp and diffused contusion of right perito occipital scalp. The Doctor issued post mortem examination report (Ext.2) with an opinion that abrasions and lacerated wounds were caused by hard and blunt substance whereas the stab wounds, which were spindle shape, were caused by sharp cutting pointed weapon. According to Doctor, death was caused due to head injury associated with hemorrhagic shock. 4. Meanwhile, the I.O. also recorded the statements of the witnesses. On completion of the investigation, when the charge-sheet was submitted, cognizance of the offence was taken against the appellant. 5. When the case was committed to the court of Sessions, the appellant was put on trial, during which, the prosecution, in order to bring the charge home, examined as many as 11 witnesses. Of them, P.W.1-Sombari Singh, P.W.5 Nayan Singh, P.W.7-Bholanath Mandal were declared hostile as they did not support the case of the prosecution. 5. When the case was committed to the court of Sessions, the appellant was put on trial, during which, the prosecution, in order to bring the charge home, examined as many as 11 witnesses. Of them, P.W.1-Sombari Singh, P.W.5 Nayan Singh, P.W.7-Bholanath Mandal were declared hostile as they did not support the case of the prosecution. P.W.2- Satish Singh, did testify that he had seen the deceased going to the house of the appellant. P.W.3-Rohit Mandal, P.W.4-Swapan Kumar Mandal, P.W.8- Kalicharan Singh (brother of the deceased) and even P.W.9-Shivcharan Singh (informant) did testify that there was illicit relationship in between the deceased and Geeta Singh-mother of the appellant. 6. Upon closure of the prosecution case, when incriminating evidences appearing against the appellant were put under Section 313 of Cr.P.C., he denied. 7. Thereafter, the court, having taken into account that the deceased was seen on 13.03.2003 going to the house of the appellant, who was never liking illicit relation in between the deceased and her mother continued, did find the appellant guilty for committing murder of the deceased -Sashidhar Singh @ Petu and accordingly, recorded the judgment of conviction and the order of sentence, as aforesaid, which is under challenge. 8. Mr. Ananda Sen, learned counsel appearing for the appellant submits that though the court has taken into account the fact of deceased going to the house of the appellant as one of the circumstance but that circumstance never appears to have been proved by the prosecution. Further it was submitted that the court has also taken into account the fact that the weapon used was recovered at the instance of this appellant, but this is also in view of the testimony of the I.O. is not correct and thereby, only one circumstance appears to be there against the appellant i.e. there had been illicit relationship in between the deceased and Geeta Singh-mother of the appellant, but that circumstance alone, would never go to establish that it was the appellant, who had committed murder of the deceased, but the trial court did not consider this aspect of the matter, in right perspective, and thereby, learned trial court has committed illegality, in recording the judgment of conviction and the order of sentence against the appellant. 9. As against this, Mr. 9. As against this, Mr. Sanjay Kumar Srivastava, learned counsel appearing for the State submits that since there was illicit relationship in between the deceased and Geeta Devi-mother of the appellant, which the appellant never liked it and, therefore, it can only be the appellant, who had reason to commit murder of the deceased and that on the fateful day, the deceased was seen going to the house of the appellant, but thereafter, he was never seen alive and, therefore, the circumstances, appearing against the appellant go to establish that it was only the appellant and none else, who committed murder of the deceased. 10. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that the deceased was seen leaving his house at 8.00 P.M. on 13.03.2003. When he did not return home, the informant -Shivcharan Singh (P.W.9) started searching. In that course, when he came near a well belonging to one Kali Dutta, he found some blood spots over the wall of the well and then he suspected that the deceased might have been killed by the appellant, as the appellant was never liking that illicit relationship in between his mother and the deceased should continue. When the case was lodged by the informant, the police took up the investigation and in that course, the police, as per the evidence of P.W.-9, brought this appellant and his mother to the police station where this appellant did confess that he has committed murder, but that confession has got no evidentiary value. 11. Further, we do find that the appellant has been convicted taking into account one of the circumstances that the deceased was seen going to the house of the appellant but that circumstance, never appears to have been proved fully by the prosecution. 12. It be stated that P.W.2-Satish Singh has testified that he saw the deceased going to the house of the appellant whereas P.W.8-brother of the informant said that Geeta Singh, on the fateful day had come to the house of the appellant and when she left home, the deceased also accompanied her. Thus, there appears to be variance in the testimonies of P.W.2 and P.W.8 and thereby, the prosecution cannot be said to have established the fact that the deceased was seen on the fateful day going to the house of the appellant. Thus, there appears to be variance in the testimonies of P.W.2 and P.W.8 and thereby, the prosecution cannot be said to have established the fact that the deceased was seen on the fateful day going to the house of the appellant. Even if this fact is accepted to be true, culpability cannot be fastened upon the appellant in absence of any evidence direct or circumstantial that the appellant was ever seen in company of the deceased. 13. Having come to such conclusion, we do further find that there remains only one circumstance i.e. there had been illicit relationship in between the deceased and the mother of the appellant, but this circumstance alone, never goes to prove that it was the appellant, who committed murder of the deceased. 14. Thus, we do find that the prosecution has utterly failed in establishing that the appellant was the person, who committed murder of the deceased. 15. Under the circumstances, the judgment of conviction and the order of sentence passed by the trial court is hereby, set aside. Consequently, the appellant is acquitted of the charges levelled against him and is directed to be released forthwith, it not wanted in any other case. 16. In the result, this appeal is allowed. Appeal allowed.