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2017 DIGILAW 2076 (JHR)

Lukhiram Murmu v. State of Jharkhand

2017-12-02

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT : Per S. Chandrashekhar, J. This Jail Appeal is preferred against judgment of conviction u/s 302 IPC and order of sentence, both dated 27.11.2009 passed in Sessions Case No. 25 of 2008 by the then 1st Additional Sessions Judge, Dumka. The appellant has been sentenced to undergo R.I. for life and fine of Rs. 5,000/-. 2. At the outset it needs to be recorded that the prosecution case rests solely on the circumstantial evidence. There is no eyewitness to the alleged occurrence. It is well settled that a conviction can be based solely on the circumstantial evidence, but all the circumstances should be complete and there should be no gap left in the chain of circumstances. In Padala Veerja Reddy Vs. State of A.P. reported in 1989 Supp.(2) SCC 706, the Supreme Court has laid down the tests, which the prosecution in a case of circumstantial evidence must satisfy; "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and non else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 3. In Hanumant Govind Nargundkar Vs. State of M.P. reported in AIR 1952 SC 343 , the Supreme Court has observed thus;- "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 4. The prosecution case, as narrated in the fardbeyan of Ramesh Murmu, who gave his statement on 22.10.2007 at 8 a.m., reveals that after the death of the informant's father his mother started living as wife of the appellant-Lukhiram Murmu since last 5-6 years. He claimed that on 22.10.2007 at around 7 a.m. he came to know that his mother has been killed by the accused-Lukhiram Murmu, whereupon when he along with his neighbours went there he found the dead body of his mother-Lilmuni Baski lying on a cot on the southern side of the house. He saw four injuries on the arm, eye and forehead of his mother, which appeared to be caused by a Tangi. On the basis of his fardbeyan, Gopikandar P.S. Case No. 27 of 2007 was registered on 22.10.2007 for offence u/s 302 IPC against the accused-appellant. After the police filed charge-sheet against the accused, cognizance of the offence was taken and charge u/s 302 IPC was framed against the appellant on 9.6.2008. During the trial the prosecution examined seven witnesses, out of which P.W. 6 is doctor who conducted post mortem examination over the dead body. The Investigating Officer has been examined as P.W. 7. 5. It is an admitted case that there is no eyewitness to the occurrence. The trial judge has relied on the following circumstances to find the accused guilty for the offence u/s 302 IPC; (i) The deceased Lilmuni was residing with the accused Lukhiram Murmu in his house as his wife after the death of her first husband whose son is the informant of this case, (ii) The dead body was found in the house of the accused, (iii) The doctor found 4 incised wound on the dead body and one of the injury over forehead, caused the death of the deceased. (iv) Recovery of bloodstained axe after the information given by the accused from earth near by the dead body. 6. The trial Judge has found the explanation of the accused in his examination u/s 313 Cr.P.C. false and referring to Section 106 of the Evidence Act came to a conclusion that the accused being the inmate of the house has failed to disclose how the death has occurred, and thus the prosecution has proved the charge u/s 302 IPC against the accused. 7. We have heard Ms. Amrita Banerjee, learned counsel for the appellant and Mr. Satish Kumar Keshri, learned APP and carefully scrutinized the materials produced in Sessions Case No. 25 of 2008. The learned APP has referred to and relied upon a judgment in Harijan Bhala Teja Vs. State of Gujarat reported in 2016 ACR 568, para 13. 8. One of the circumstances found proved by the trial Judge is that the dead body was found in the house of the accused, and the other circumstance is that bloodstained axe was recovered from the earth near the dead body on the information of the accused. On recovery of dead body from the house of the accused, the trial Judge has raised presumption under Section 106 of the Evidence Act, but then there is no evidence led by the prosecution that it was the accused and accused alone who was present in the house in the fateful night of 21.10.2007. It has also not been proved by the prosecution that except the accused no other person could have entered his house and, in fact, did not enter his house in the night of 21.10.2007. Evidently, presumption u/s 106 of the Evidence Act, on the ground that the accused being inmate of the house is under a duty to reveal how death of his wife has been caused, cannot be raised. 9. Another circumstance taken against the accused to hold that the chain of circumstances is complete, is that the accused had given a false explanation about cause of death of his wife during his examination u/s 313 Cr.P.C. On this count also the trial Judge has committed serious error in law. No doubt adverse inference can be drawn against the accused, however, only and only if the incriminating materials stand fully proved. No doubt adverse inference can be drawn against the accused, however, only and only if the incriminating materials stand fully proved. In the present case the cause of death stated by the accused in his examination u/s 313 Cr.P.C., in view of the fact that other circumstances which allegedly have been found proved do not lead to an inference that the accused/appellant has caused death of his wife by assaulting her by an axe, would not amount to false explanation. The evidences of the prosecution witnesses are full of contradictions and there are intrinsic improbabilities in the evidence of prosecution witnesses. On recovery of tangi at the instance of the accused, suffice would be to record that the trial court has taken a contradictory stand in its judgment, and the finding recorded by the trial Judge is contrary to the record of the case. It is stated that the accused gave his confessional statement in which he admitted that after killing his wife he has concealed the axe within the earth, however, the trial Judge has recorded that he has given a statement to the police before his arrest. In both the cases statement of the accused is inadmissible in law. No 'pointing out' memo was prepared by the investigating officer. The alleged recovery of axe would not lead an inference that it is the accused, who has caused death of the deceased-Lilmuni Baski. In "Abdulwahab Abdulmajid Baloch vs. State of Gujarat" (2009) 11 SCC 625 , where it was found that the bullet recovered from the body of the deceased was fired from the weapons seized from the accused, still the Supreme Court found the evidence not sufficient to convict the accused for an offence u/s 302 IPC. It has been held that; "37. Be that as it may, we feel that only because the recovery of a weapon was made and the expert opined that the bullet found in the body of the deceased was fired from one of the weapons seized, by itself cannot be the sole premise on which a judgment of conviction under Section 302 could be recorded. There was no direct evidence. The accused, as noticed hereinbefore, was charged not only under Section 302 read with Section 34 of the Penal Code but also under Section 302 read with Section 120-B thereof. There was no direct evidence. The accused, as noticed hereinbefore, was charged not only under Section 302 read with Section 34 of the Penal Code but also under Section 302 read with Section 120-B thereof. The murder of the deceased was said to have been committed by all the accused persons upon hatching a conspiracy. This charge has not been proved." 10. In the present case, after indicating the circumstances which have been found proved, in paragraph no. 17 of its judgment, the trial court has suddenly come to a conclusion in paragraph 19 of the judgment that; "......I am of the opinion that the evidence adduced by the prosecution is sufficient and weighty to prove the offence committed by the accused, whose explanation is not sustainable and not proved by any cogent evidence." 11. Apparently, the approach of the trial Judge is faulty and it cannot be countenanced in law. Ignoring the settled principles on circumstantial evidence, the trial Judge has convicted the appellant for offence u/s 302 IPC on mere suspicion. In Balwinder Singh Vs. State of Punjab reported in 1995 Supp.(4) SCC 259, the Supreme Court has cautioned; "the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof". 12. Once again, after analyzing the entire evidence on record, we find that the circumstances which can be found proved are not sufficient to convict the appellant for offence u/s 302 IPC. The chain of circumstances do not lead to an inescapable conclusion that it was the appellant and appellant alone who has committed the crime. 13. What follows from the above discussions is, that the judgment of conviction u/s 302 IPC and the order of sentence sentencing the appellant to undergo R.I. for life with fine of Rs. 5,000/-, both dated 27.11.2009 suffer from serious infirmities in law and, thus, are liable to be interfered with, and are set aside. The appellant, namely, Lukhi Ram Murmu, if not found wanted in connection to any other case, shall be set free forthwith. 14. Accordingly, this criminal jail appeal stands allowed.