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2017 DIGILAW 1692 (JHR)

Bal Kishun Mahto v. State Of Jharkhand

2017-09-21

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT Ananda Sen, J. - This criminal appeal is directed against the Judgment of conviction and order of sentence dated 10.7.2007 and 17.7.2007 respectively passed by Sri Ramendra Nath Rai, the learned Additional Session Judge, FTC-V, Hazaribagh in Session Trial No. 137 of 2005, arising out of Patratu P.S. Case No. 191/2004, corresponding to G.R. No. 2478 of 2004, whereby and where under, the learned trial court having found the sole appellant guilty for committing murder of his wife, convicted him for the offence punishable under Sections 302 and 201 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- under Section 302 IPC. In default of payment of fine, he was further directed to undergo three months simple imprisonment. The sole appellant was further sentenced 5 years'' rigorous imprisonment and Rs. 3,000/- fine for the offence under Section 201 IPC and in default of payment of fine, he was further directed to undergo simple imprisonment for three months. Both the sentences were directed to run concurrently. 2. The prosecution case is based upon the Fardbeyan of one Rameshwar Mahto wherein, he stated that on 10.10.2004 at about 6:00 a.m. the brother of his son-in-law came in motorcycle and informed that the thieves have entered into their house and assaulted his son-in-law and have murdered his daughter. On receipt of said information, the informant along with his brother Bhuneshwar Mahato and son Chhotelal Mahato rushed to the house of his son-in-law. When he reached the place of occurrence and entered in the room, he found on the floor his daughter, lying dead and she was murdered by cutting her throat. There was blood on the floor. When the informant asked his son-in-law as to how there was blood stains in his apparels, then his son-in-law started weeping and confessed before him that he has committed the crime in rage. He stated that at night, there was quarrel between him and his wife and in rage, by Farsa, he cut the throat of his wife. The informant further stated that his grand-daughter Sugwa also informed him that at night, a quarrel was going on between her father and her mother. He stated that in the year 1994, his daughter was married with the appellant. The informant further stated that his grand-daughter Sugwa also informed him that at night, a quarrel was going on between her father and her mother. He stated that in the year 1994, his daughter was married with the appellant. In 1998 for committing dacoity in train, the appellant was taken in custody and remained in jail for 5-6 years and in the meantime, his daughter developed illicit relationship with Dhaneshwar, the younger brother of his son-in-law and she became pregnant. After terminating the pregnancy, his daughter was sent to her paternal home but again she was sent back to her matrimonial home. He stated that the appellant was not keeping good terms with the deceased and the appellant has committed the murder. On the basis of said Fardbeyan, Patratu P.S. case No. 191/2004 was instituted for the offence under Sections 302/201 IPC against the appellant. 3. After completion of investigation, the Investigating Officer submitted charge-sheet against the appellant under Sections 302 and 201 IPC. The case was committed to the Court of Session. Charges were framed under Sections 302 and 201 IPC against the sole accused, which was read over and explained to him, but the accused pleaded innocence and claimed to be tried. 4. To prove the case, the prosecution has examined altogether 8 witnesses. After closure of the witnesses on behalf of the prosecution, the statement of accused appellant was recorded under Section 313 Cr.P.C., 1973 The defence did not produce any evidence. 5. The trial court, after hearing the arguments on behalf of the parties and after going through the materials available on record, convicted the appellant by the impugned judgment dated 10.7.2007 for committing the offence punishable under Sections 302 and 201 IPC and sentenced him as aforesaid. 6. Challenging the said judgment of conviction and order of sentence dated 10.7.2017 and 17.7.2017 respectively, the appellant has preferred this appeal. 7. We have heard the learned counsel appearing for the appellant and the learned Addl. P.P. We have also scanned the evidences and gone through the lower court records. 8. The counsel for the appellant while pleading innocence of this appellant submits that the prosecution has miserably failed to prove its case beyond all reasonable doubt. It is further submitted that admittedly there is no eye witness to the said occurrence. P.P. We have also scanned the evidences and gone through the lower court records. 8. The counsel for the appellant while pleading innocence of this appellant submits that the prosecution has miserably failed to prove its case beyond all reasonable doubt. It is further submitted that admittedly there is no eye witness to the said occurrence. It is further submitted that the prosecution has withheld the material witness, Sugwa, benefit of which has to be given to this appellant. It is also submitted that the chain of circumstances is not complete in this case and therefore, this appellant could not have been convicted. It is lastly submitted that the place of occurrence has also not been proved by the Investigating Officer, and from his evidence it cannot be said that the murder-weapon was recovered from possession of this appellant. He further submits that from the evidence of the Investigating Officer, it would be clear that the appellant has not confessed his guilt, rather document was prepared on the basis of the statement of the witnesses, which was converted into a confessional statement. He further submits that there is serious laches on the part of the prosecution and thus, this appellant is liable to be acquitted by giving benefit of doubt. 9. On the other hand, learned Additional Public Prosecutor submits that the death of the deceased (wife of the appellant) has taken place in the house of the appellant and the appellant has confessed his guilt before the informant. It is further submitted that the motive was there to commit the murder of the deceased, as it has come in evidence that the deceased had illicit relationship with the younger brother of this appellant and she became pregnant through him, which annoyed the appellant. It is lastly submitted that the circumstances of this case clearly point out towards the guilt of this appellant. 10. As stated earlier, 8 witnesses have been examined on behalf of the prosecution. P.W.1-Rajendra Hembram is the Investigating Officer of this case and he deposed that he prepared the Inquest Report in his own handwriting and the same was marked as Ext.-1. He stated that Dhaneshwar Mahato, the elder brother of the accused, came to the police station and stated that his younger brother was assaulted by thieves and his wife has been killed by them. He stated that Dhaneshwar Mahato, the elder brother of the accused, came to the police station and stated that his younger brother was assaulted by thieves and his wife has been killed by them. He stated that he inspected the place of occurrence and the appellant has confessed his guilt. The confession of the appellant was recorded, which was marked as Ext-2. He stated that from the place of occurrence, blood stained apparels and the Farsa were recovered. He also deposed that seizure list was prepared, which was marked as Ext.-3. In cross-examination, he said that he has not asked the inmates of the house about the thieves and the fact of theft. He stated that as he could not gather any information about the thieves, therefore he understood that the husband must have committed the murder of his wife. He also deposed that on the basis of the statement of the witnesses, he prepared the confessional statement and took signature of this appellant. He stated that in the case diary, he has not mentioned, in whose presence, the confessional statement of the accused was recorded. He stated that the blood stained cloths were not sent for chemical examination. He also stated that he did not mention in the case diary about the distance between the place of occurrence and the place where the Farsa was recovered. He further deposed that he did not mention the size of the Farsa. P.W.2-Laljee Mahato is the Inquest Witness who identified his signature in the Inquest Report, which was marked as Ext. 1/1. He stated that he knows nothing about the occurrence. P.W.3-Chhotelal Mahato is the brother of the deceased. He stated that he got information that the thieves have committed murder of the deceased. On receipt of the information, he along with others went to Piparitola Village and saw the dead body of the deceased. The police has taken the dead body of the deceased. He stated that the marriage of his sister was solemnized with this appellant in the year 1994 and this appellant was in custody for 4-5 years for committing train robbery. He stated that one year after his release from custody, a child was born. He stated that his sister had illicit relationship with her brother-in-law, as a result of which, a fetus had to be aborted when the appellant was in custody. He stated that one year after his release from custody, a child was born. He stated that his sister had illicit relationship with her brother-in-law, as a result of which, a fetus had to be aborted when the appellant was in custody. He identified his signature in the Fardbeyan, which was marked as Ext.-1. He also deposed that earlier the relationship between the deceased and the appellant was cordial. He stated that the apparels of the appellant was blood stained. He stated that the blood of the Farsa was wiped out and there was a cloth, which was not seized by the police. P.W.4- Munga Lal is the witness to the Inquest and his signature was marked as Ext. 1/2. He stated that he was made to sign on blank paper. P.W.5-Bhuneshwar Mahato stated that in the morning, he was informed that the deceased was murdered by thieves then he reached the village-Pipritola. He stated that the daughter of this appellant, who is their grand daughter, informed that there was quarrel between the husband and the wife. He suspected that the appellant has committed the murder. He stated that on the basis of suspicion, the appellant has been made an accused in this case. P.W.6-Dhaneshwar Mahato has also stated that he received the information that his niece has been murdered and this appellant was assaulted and has lost his consciousness. This witness went to village Pipritola and saw the dead body lying beneath cot and there was blood on the floor. In the meantime, the police reached. This appellant was interrogated by the police, in which, the appellant stated that the thieves have committed the murder of the deceased but this statement was not believed. He stated that the appellant was in custody for 5 years and after his release for 2-4 months, husband and wife remained normally. He stated that when this appellant came to know about the illicit relationship of his wife and about the abortion, dispute and differences started. He stated that the appellant returned from jail, a son was born and inspite of that, the deceased was subjected to rape. He stated that he has also suspicion that the appellant has committed the murder of the deceased. P.W.7-Rameshwar Mahato is the informant of this case. He stated that this appellant was in custody for 3 years. He stated that the appellant returned from jail, a son was born and inspite of that, the deceased was subjected to rape. He stated that he has also suspicion that the appellant has committed the murder of the deceased. P.W.7-Rameshwar Mahato is the informant of this case. He stated that this appellant was in custody for 3 years. The younger brother of this appellant sent the deceased to the cow-shed and started pressing her neck after pulling her down on the ground. When this appellant reached, said Dhaneshwar Mahato fled away. It is further stated that after one year, a son was born, thereafter the dispute arose between the deceased and the appellant and the deceased was murdered by the appellant. He further stated that Agnu informed him that thieves have committed the murder of his daughter and this appellant was also assaulted. It was also stated that when his daughter tried to save her husband, the thieves have committed her murder. He went to his daughter''s house and saw the dead body and his son-in-law was sleeping in another room. He stated that when his son-in-law was confronted, his son-in-law prayed for forgiveness. He identified his signature in Fradbeyan, which was marked as Ext.-5. He stated that his daughter was married 15 years ago. He also stated that he has suspicion that this appellant has committed the murder of the deceased. This witness was not cross-examined by the defence, inspite of opportunity. P.W.8-Sheo Prasad Sinha is a doctor who had conducted the postmortem of the deceased and found the following injury on the dead body of the deceased:- Mouth partially open rigor mortis present in both upper and lower limb. Incised wound over the neck 6" x 1" x bone deep neck separated from the body only skin tagged on right side neck. All the structure under the neck was sharply cut. Cervical vertebral spinal cord are also sharply cut. The injuries are anti-mortem in nature. Internal Examination: - Opening of the thoracoabdominal cavity both lungs are pale, heart empty both chamber, liver, spleen and kidneys are pale, stomach was normal contain mucoid fluid about 2 oz. Uterus normal bladder empty. The Doctor has opined that time elapsed since death is 6 to 36 hours and the death is due to shock of hemorrhage caused by above said injury which is caused by sharp cutting instrument. Uterus normal bladder empty. The Doctor has opined that time elapsed since death is 6 to 36 hours and the death is due to shock of hemorrhage caused by above said injury which is caused by sharp cutting instrument. The postmortem report was marked as Exhibit 4. 11. From the evidences what has been led by the prosecution, we find that there are no eye witness to the said occurrence. It is the case of the defence that thieves have committed the murder of the deceased. The investigating officer (P.W.1) in para 3 has stated that the brother of the appellant went to the police station and had informed that this appellant was being assaulted by the thieves and the thieves have committed the murder of the deceased. From the statement of I.O., it is clear that the said information was lodged before the police about the occurrence, which was in fact, the first information about the occurrence. Surprisingly, the said information was not produced before the Court. The fardbeyan, which is the basis of the FIR, thus definitely is not the first version about the occurrence. The first version about the occurrence may be a false version but whether it was false or not, will only surface after investigation. section 154 of the Code of Criminal Procedure, 1973 deals with information in respect of cognizable cases. It provides that every information relating to commission of cognizable offence, if given orally, to an Officer In-charge of police station, shall be reduced to writing by him or under his direction. From paragraph 3 of the evidence of the I.O., it clear that an information was given by Dhaneshwar Mahato about the cognizable office. The said information is to be treated to be an information under Section 154 Cr.P.C., 1973 The said information has been suppressed by the prosecution. 12. After receipt of an information about a cognizable offence, the police starts investigation in terms of Section 156(1) Cr.P.C., 1973 Section 161 Cr.P.C., 1973 provides for examination of witnesses by the police. Section 162 Cr.P.C., 1973 also provides that the statement of the witness given before the police in course of investigation will not be signed by the person making the same. Section 162 Cr.P.C., 1973 also provides that the statement of the witness given before the police in course of investigation will not be signed by the person making the same. Thus, in this case, the fardbeyan of the informant (P.W.7) which is definitely not the first version of the occurrence cannot be treated to be a fardbeyan giving rise to the First Information Report. Thus, the same is at best can be treated as a statement of witness under Section 161 Cr.P.C., 1973 13. Further, from perusal of the evidence of I.O., we find that the I.O. has not whispered about the place of occurrence. It is the duty of the prosecution to prove the place of occurrence. In his entire deposition, the I.O. has not whispered from where, the dead body of the deceased was found and where the occurrence has taken place. Even from which place, the alleged weapon was recovered has not been mentioned. Thus, this is a major setback for the prosecution. 14. Further, the prosecution has relied upon the confessional statement of the accused. As per the prosecution, it is the accused, who has confessed his guilt. In this aspect, it is important to refer to paragraph 9 of the deposition of the I.O., wherein, he has admitted that on the basis of the statement of the witnesses recorded during investigation, he had prepared the confessional statement and had taken the signature of the accused. This statement gives rise to a doubt as to whether accused has confessed his guilt or not. The alleged confessional statement thus, can be said to be the brain child of the I.O. and the same is not a confession. The statement to the effect that he had not recorded the names of the persons before whom the alleged confession was made, also casts a serious doubt about the alleged confession. 15. Since the confessional statement is doubtful, it can safely be said that the recovery of the alleged weapon of offence is not on the basis of any confession. Chhotelal Mahato (P.W.3) has stated that the weapon of the occurrence was recovered and there was no blood stains in it as the same was wiped out by the cloth. He further stated that the police has not recovered the said cloth. Chhotelal Mahato (P.W.3) has stated that the weapon of the occurrence was recovered and there was no blood stains in it as the same was wiped out by the cloth. He further stated that the police has not recovered the said cloth. This statement of this witness cannot be relied upon, as the I.O. has not whispered about the same in his evidence. 16. Further, we find that the witnesses, namely, P.Ws. 5, 6 and 7, who are the uncles and father of the deceased stated that they merely suspected that this appellant might have committed the murder of the deceased. They have stated against the appellant merely on suspicion and suspicion howsoever strong it can be, cannot be a ground for conviction. 17. One of the main witnesses in this case is Sugwa, the daughter of the deceased. As per the prosecution witness (P.W.5), it is Sugwa who had informed that there was a quarrel between the appellant and the deceased the night before the occurrence. Surprisingly, Sugwa has been withheld by the prosecution and has not been produced before the court as a witness. This dents the prosecution case that at the night before the murder, there was a quarrel between the deceased and the appellant. Thus this fact of quarrelling was not proved by the prosecution. 18. The statement of the appellant was recorded under Section 313 Cr.P.C., 1973 In a statement under Section 313 Cr.P.C., 1973 all the circumstances against the accused are put to the accused. The circumstances which are against the accused and has not been put to him in his examination under Section 313 Cr.P.C., 1973 cannot be utilized against him. In the instant case, the fact of alleged confession and recovery of weapon basing upon the confession has not been put to the accused while examining him under Section 313 Cr.P.C., 1973 The court below thus could not have used the evidence, about the recovery of the weapon on the basis of confession, against this appellant. 19. Thus, from the cumulative effect of what has been discussed above, we find that the prosecution has failed to prove the guilt of this appellant beyond all reasonable doubts and therefore, the appellant in this case needs to be acquitted by giving benefit of doubt. 20. 19. Thus, from the cumulative effect of what has been discussed above, we find that the prosecution has failed to prove the guilt of this appellant beyond all reasonable doubts and therefore, the appellant in this case needs to be acquitted by giving benefit of doubt. 20. In the result, this appeal is allowed by setting aside the Judgment of conviction and order of sentence dated 10.7.2007 and 17.7.2007, respectively passed by Sri Ramendra Nath Rai, the learned Additional Session Judge, FTC-V, Hazaribagh in Session Trial No. 137 of 2005 and the appellant is acquitted of the charges. The appellant, who is also in custody, be released forthwith, if he is not wanted in any other case. 21. Let the Lower Court Records be sent back to the Court H.C. Mishra, J. - I agree.