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2016 DIGILAW 763 (JHR)

Bauka Samad v. State of Jharkhand

2016-05-03

D.N.UPADHYAY, RATNAKER BHENGRA

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JUDGMENT : D.N. UPADHYAY, J. 1. Heard the parties. 2. This criminal appeal has been directed against the judgment of conviction and sentence dated 23.07.2009 and 28.07.2009 respectively, passed by Additional Sessions Judge, F.T.C. Simdega in S.T. No. 47/2004, arising out of Bano P.S. Case No. 24/2003 corresponding to G.R. No. 274/2003 whereby the appellant has been held guilty for the offence punishable under Sections 302 of the Indian Penal Code and sentenced to undergo R.I. for life and to pay fine of Rs.5,000/- and in default in making payment of fine to undergo SI for further period of one month. 3. The facts in brief is that during intervening nigh of 17/18 September, 2003 Nauri Mundain, wife of appellant was killed and her dead body was noticed by the informant on 18.09.2003. She noticed injury on the head of the deceased. On enquiry she could learn that her son-in-law Bauka Samad has killed his wife Nauri Mundain by causing injury by means of Tangi because she did not provide food to him after he returned home. On the basis of fardbayan of Birsi Mundain (mother of the deceased) recorded on 18.09.2003 at 13:30 hrs., Bano P.S. Case No. 24/2003 under Section 302 IPC against the appellant was registered. The investigation was carried out, the appellant was apprehended, blood stained soil and weapon of offence were seized, inquest report was prepared, witnesses were examined and charge-sheet against the appellant was submitted. Accordingly, cognizance was taken and the case was committed to the Court of Sessions and registered as S.T. No. 47 of 2004. Charge under Section 302 IPC against the appellant was framed to which he pleaded not guilty and claimed to be tried. The prosecution in order to substantiate charge examined altogether 9 witnesses including informant (P.W.-7), Doctor (P.W.-6) who conducted postmortem examination on the dead body of the deceased and proved documents like seizure list, inquest report, postmortem report, fard-bayan, formal FIR whereas no witness has been examined by the appellant in his defence. The learned Trial Judge, at the conclusion of trial, placing reliance on the evidence and documents available on record, held the appellant guilty and inflicted sentence as indicated above. 4. The learned Trial Judge, at the conclusion of trial, placing reliance on the evidence and documents available on record, held the appellant guilty and inflicted sentence as indicated above. 4. The appellant has assailed the impugned Judgment on the ground that prosecution has miserably failed to bring home the charge beyond shadow of all reasonable doubt but the learned Trial Judge committed gross error by holding the appellant guilty only on the ground that deceased-wife of the appellant was found dead in her matrimonial home and the appellant has failed to extend cogent explanation against death of his wife. It is submitted that prosecution has to stand or fall on its own leg. Only on the circumstance that wife of the appellant was found killed in her matrimonial home, he could not be held liable for the offence of murder. That may be a circumstance to be explained by him but only on that score he cannot be convicted. Munda Pahan (P.W.-1) has stated that on that unfortunate night the appellant made him wake up and told that his wife has died due to headache. After informing about death of his wife, the appellant left the place to inform other villagers. After receiving such information, P.W.-1 went to the house of appellant and found Nauri Mundain lying dead and she was having bleeding injury on her head. P.W.-1 immediately informed to his son P.W.-3, who is Chowkidar of the village and asked him to inform the Police. It is further stated that blood stained soil and an axe were seized from the place and inquest report was prepared in carbon copy in his presence. He put his signature on inquest report and seizure list. In his cross examination he says that his house is 1 Km. away from the place of occurrence. He did not say that during night he had visited house of the appellant rather he says that in the morning at 6:00 a.m., he had reached to the place of occurrence. The dead body of Nauri Mundain was lying on the floor and blood was available beneath the dead body. P.W.-2 (John Samad) is a formal witness and he has proved his signature available on the seizure list and inquest report. P.W.-3 (Soma Pahan) who happens to be Chawkidar has been tendered. The dead body of Nauri Mundain was lying on the floor and blood was available beneath the dead body. P.W.-2 (John Samad) is a formal witness and he has proved his signature available on the seizure list and inquest report. P.W.-3 (Soma Pahan) who happens to be Chawkidar has been tendered. P.W.-4 Resho Pahan and P.W.-7 (informant) have not supported the prosecution case and they have turned hostile. P.W.-5 (Gresh Topno), P.W.-8 (Ram Prasad Yadav) and P.W.-9 (Narayan Manjhi) are the formal witnesses. P.W.-8 has produced blood stained axe before the court whereas P.W.-9 who is an advocate clerk, has proved fardbayan, endorsement made on the fardbayan and formal F.I.R. It is contended that investigating officer has not been examined. The informant has not supported the prosecution case and, therefore, F.I.R. has not been proved. There is no eye witness to the occurrence. Only on the circumstance that deceased was killed in her matrimonial home, the appellant could not be held guilty for the offence of murder. Learned trial judge has committed gross error and impugned Judgment could not be upheld. 5. Learned APP has opposed the arguments but concedes that no eye witness was traced out during investigation. The informant though turned hostile but she has stated that Nauri Mundain was killed by her husband Bauka Samad (appellant). 6. We find substance in the submission of learned counsel appearing for the appellant. We do not find that prosecution has proved its case beyond shadow of reasonable doubt. Only on the circumstance that dead body of deceased was found in her matrimonial home, the appellant who is husband, could not be held guilty. Such circumstance is certainly an incriminating circumstance but without being supported or corroborated by any other evidence, it would not be safe to record conviction under Section 302 IPC. 7. Considering all these aspects of the matter, we feel inclined to allow this appeal. Accordingly, this appeal is allowed and the judgment of conviction and sentence dated 23.07.2009 and 28.07.2009 respectively, passed by Additional Sessions Judge, F.T.C. Simdega in S.T. No. 47/2004 arising out of Bano P.S. Case No. 24/2003 corresponding to G.R. No. 274/2003 is hereby set aside. The appellant, named above, who is in custody, is directed to be released forthwith, if not wanted in any other case and for that the convicting court/ successor court shall issue directions, if needed.