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2016 DIGILAW 417 (JHR)

Gura Purty v. State of Jharkhand

2016-03-03

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : This criminal appeal has been directed against the judgment of conviction and order of sentence dated 5th March, 2004 and 10th March, 2004 respectively passed by learned Additional Sessions Judge, F.T.C.-II, Chaibasa in connection with Sessions trial no. 158 of 2003 corresponding to G.R. Case no. 182 of 2003 arising out of Noamundi P.S. Case no. 19 of 2003, whereby the appellant has been held guilty for the offence punishable under section 302 of Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The prosecution case, in brief, is that Shambhu Charan Kerai, who happens to be the Munda of the village, received information that Gura Purty(appellant) has killed his wife and kept the dead-body inside the house. After receiving such information, the informant along with Dhanurjay Purty (P.W.3) and Mukesh Gope (P.W.4) went to village-Uecia Bara Tola. The appellant after seeing Munda and his companion started fleeing away from his house. He was restrained after which he disclosed that he has killed his wife. Thereafter, the informant and his companion saw the dead-body of Roibari Kui(wife of the appellant) lying in a pool of blood. Fardbeyan of Shambhu Charan Kerai was recorded on 25.05.2003 and a case being Noamundi P.S. Case no. 19 of 2003 under section 302 I.P.C. was registered against the appellant. The investigation was carried out and charge-sheet against appellant was submitted, accordingly cognizance was taken and the case was committed to the court of Sessions and registered as Sessions Case no. 158 of 2003. 3. Charge under section 302 I.P.C. was framed against the appellant to which the appellant pleaded not guilty and claimed to be tried. The prosecution in order to substantiate charge, has examined altogether six witnesses including doctor, Investigating Officer and the informant. Learned Additional Sessions Judge, F.T.C.-II, Chaibasa after considering the evidence and documents available on record, held the appellant guilty and inflicted sentenced as indicated above. 4. The appellant has assailed the impugned judgment on the ground that there is no eye witness to the occurrence and he has been convicted only on the basis of disclosure made by him before the informant and P.Ws.3 and 4. It is settled law that only on extra judicial confession, that too, of oral in nature, no conviction can be recorded. The informant (P.W.1), P.Ws. 3 and 4 had not disclosed about knowledge of the occurrence. It is settled law that only on extra judicial confession, that too, of oral in nature, no conviction can be recorded. The informant (P.W.1), P.Ws. 3 and 4 had not disclosed about knowledge of the occurrence. The informant says that he was informed by Risha Mai, but who is that Risha Mai is unknown to the case record. He has not been examined. The confession of appellant is also not voluntary. The circumstances brought on record by P.Ws.1, 3 and 4 do not inspire confidence to record conviction. According to Post Mortem report, death of Roibari Kui had occurred between 24 to 48 hours since the time of Post mortem examination. It is not expected that appellant after committing murder of his wife, shall continuously remain in the house. There was no intervening circumstance to detain him in the house. The story brought on record by P.Ws.1, 3 and 4 that seeing them the appellant had started fleeing away could not be relied upon. No confessional statement of the appellant was reduced to writing by the police or by the Magistrate. In absence of cogent evidence, the judgment of conviction and order of sentence recorded by learned trial court cannot be sustained. 5. Learned counsel appearing on behalf of the State has opposed the contention and submitted that appellant had voluntarily confessed his guilt before the informant and P.Ws. 3 and 4. The dead-body of wife of the appellant was lying inside the house. At the time when witnesses reached to the place, he was found present and after seeing them, he tried to flee away. When he was apprehended, he had confessed his guilt and that is admissible in law and conviction can be recorded on that extra judicial confession. 6. We have gone through the case records and the impugned judgment. Admittedly, there is no eye witness to the occurrence. No neigh boring person of the deceased or the appellant has been examined. The information regarding occurrence was received from Risha Mai, but who is that Risha Mai, is unknown to the case record and he did not come forward to support the case that he had informed Mundajee about the occurrence. Dhanurjay Purty-P.W. 3 says that on the next day police arrived at the place and at that time, he was not present. He had gone to the place at the instruction of Mundajee. Dhanurjay Purty-P.W. 3 says that on the next day police arrived at the place and at that time, he was not present. He had gone to the place at the instruction of Mundajee. Mundajee stated that he along with Dhanurjay Purty and Mukesh Gope had gone to the house of Guru Purty (appellant). The house was closed. When the informant called, Guru Purty appeared and he had stated that he has committed murder of his wife, but the statement of P.Ws. 3 and 4 does not find support from the statement of P.W.1. He says that after seeing them, Guru Purty tried to escape, but these two witnesses have said that Guru Purty was called by Mundajee and he appeared and confessed his guilt. P.W.4 admits that disclosure made by appellant was not reduced in writing. Needless to mention that after registration of case, no confession of appellant was recorded by the police nor he was produced before Magistrate for recording of his confession under section 164 Cr.P.C. We do not agree that only on the basis of oral disclosure made by the appellant before these three witnesses, which is also not consistent, conviction recorded for the offence of murder could be upheld. 7. Considering all these aspects of the matter, we do not feel inclined to uphold the judgment of conviction and order of sentence against the appellant passed by learned Additional Sessions Judge, F.T.C.-II, Chaibasa in connection with Sessions Trial no. 158 of 2003. 8. In the result, this appeal is allowed and the judgment of conviction and order of sentence as passed by the trial court is hereby set aside. The appellant, named above, who is in custody, is hereby directed to be released forthwith, if not wanted in any other case and for that the convicting/successor court shall issue appropriate direction, if needed. Appeal allowed.