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2018 DIGILAW 112 (JHR)

Chhote Lal Soren v. State of Jharkhand

2018-01-13

RAJESH KUMAR, SHREE CHANDRASHEKHAR

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JUDGMENT : RAJESH KUMAR, J. 1. This criminal appeal is directed against the judgment of conviction dated 27.10.2010 whereby the appellant has been convicted for the offences u/s. 302 IPC and u/s. 3/4 of the Prevention of Witch (Daain) Practices Act and the order of sentence dated 28.10.2010 passed in Sessions Trial No. 21 of 2008 by which the appellant has been sentenced to undergo RI for life and further with fine of Rs. 5,000/-. The prosecution story is based on the fardbeyan of Chowkidar-Rajendra Maraiya recorded on 24.9.2007 by S.I. S. Paswan at about 7.00 A.M. in which it has been alleged that the informant has received information that Chhote Lal Soren has committed murder of his two Buas (aunts). On receiving such information, the informant went to the house of Chhote Lal Soren and found that dead bodies of two women were lying on a cot and blood was oozing from their heads. On query, the informant was reported by the neighbours that in the night at about 11/12 P.M., Chhote Lal Soren did commit murder of two women by giving assault with lathi and fled away from his house. The informant came to know the name of the deceased persons as Dhena Soren and Mahasuri Soren, daughters of late Lakhi Ram Soren. It has been alleged that the deceased were issueless and as such they were kept by the accused with him. It has further been alleged that the accused always used to say that his wife and daughter have died due to two Buas namely, Mahasuri Soren and Dhena Soren. It has further been alleged that the informant came to know that the accused confessed before the prosecution witness No. 2-Munshi Soren that he has killed his two Buas namely, Mahasuri Soren and Dhena Soren. 2. On the basis of the said fardbeyan, Maheshpur P.S. Case No. 147 of 2007 was registered on 24.9.2007 u/s. 302 IPC and u/s. 3/4 of the Prevention of Witch (Daain) Practices Act. After investigation, charge-sheet was submitted and thereafter cognizance of the offence for the aforesaid offences was taken against the accused person. After cognizance was taken, the case was committed to the court of Sessions. 3. During the trial, the prosecution has examined seven witnesses but none of them are eye witnesses. After investigation, charge-sheet was submitted and thereafter cognizance of the offence for the aforesaid offences was taken against the accused person. After cognizance was taken, the case was committed to the court of Sessions. 3. During the trial, the prosecution has examined seven witnesses but none of them are eye witnesses. P.W. 6 is the doctor who has conducted the post mortem examination over the dead body and P.W. 7 is the Investigating Officer. The prosecution has relied on the evidence of P.W. 2, who is brother of the deceased. P.W. 2 has not been found by the trial Judge to be an eyewitness. From the evidences led during the sessions trial by the prosecution in support of the charge u/s. 302 IPC and u/s. 3/4 of the Prevention of Witch (Daain) Practices Act framed against the accused person, the cause for the occurrence appears to be death of appellant's wife and daughter and according to trial court, it completes chain of the circumstances which go to show guilt of the accused. 4. The appellant has been convicted on the basis of the circumstantial evidences. The trial Judge has found: "It is evident from the evidence available on the record that the accused Chhote Lal Soren had made extra judicial confession before his brother Munshi Soren (P.W. 2) and the presence of the dead bodies at the house of the Chhote Lal Soren and fleeing away of Chhote Lal Soren after the alleged occurrence from his house and death of wife and daughter of Chhote Lal Soren prior to the alleged occurrence are the firm and cogent circumstance which creates complete chain of the circumstances which goes to point towards the only guilt of the accused." 5. At this stage, before adverting to the rival contentions, we propose to refer the law declared by the Hon'ble Apex Court, on circumstantial evidence, in its judgment in "Sharad Birdhichand Sarda vs. State of Maharashtra" reported in (1984) 4 SCC 116 , in which in para-153 conditions which must be fulfilled in a case based on circumstantial evidence have been discussed by the Hon'ble Apex Court thus: "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may he' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in 'Shivaji Sahabrao Bobade vs. State of Maharashtra" where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 6. One of the circumstances taken against the appellant, in the chain of the circumstances, is that he was found fleeing away from his house. We are of the opinion that this circumstance cannot be considered for drawing an adverse inference against the appellant. In "Sk. Yusuf vs. State of West Bengal" reported in (2011) 11 SCC 754 , the Hon'ble Apex Court has observed as under: "31. Both the courts below have considered the circumstance of abscondence of the appellant as a circumstance on the basis of which an adverse inference could be drawn against him. In "Sk. Yusuf vs. State of West Bengal" reported in (2011) 11 SCC 754 , the Hon'ble Apex Court has observed as under: "31. Both the courts below have considered the circumstance of abscondence of the appellant as a circumstance on the basis of which an adverse inference could be drawn against him. It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment. (Vide Matru vs. State of U.P., Paramjeet Singh vs. State of Uttarakhand and Dara Singh vs. Republic of India). Thus, in view of the law referred to hereinabove, mere abscondence of the appellant cannot be taken as a circumstance which gives rise to draw an adverse inference against him." 7. On the extra judicial confession by the appellant before his brother-Munshi Soren (P.W. 2), it needs to be indicated that there is considerable time-gap between the alleged extra judicial confession by the appellant and recovery of lathi which allegedly has been used in the crime. It is stated that lathi has been recovered from open field about 200 yards from house of the appellant. It is relevant to indicate that recovery of lathi from a place accessible to the public is inadmissible in evidence, not saved under Section 27 of the Indian Evidence Act. 8. Further, whether the said Lathi has been used in the commission of crime, has not been established by placing any evidence on record. No serological report is there. In fact, whether the Lathi was the weapon of crime has not been established at all. It is also relevant to point out that P.W. 2 namely Munshi Soren is the brother of the accused/appellant. The appellant's wife and daughter has died. He was maintaining his two Buas (victims of the present case) and there is possibility to grab the property of the accused. P.W. 2 has motive to implicate the accused and this factor has not been taken into account at all by the learned trial court. The appellant's wife and daughter has died. He was maintaining his two Buas (victims of the present case) and there is possibility to grab the property of the accused. P.W. 2 has motive to implicate the accused and this factor has not been taken into account at all by the learned trial court. In fact, the learned trial court has not at all applied its judicial mind to the circumstances relied by the prosecution to prove so-called extra judicial confession. 9. In view of the discussion made above and law declared by the Hon'ble Apex Court, this piece of evidence relied by the trial court is not reliable at all and this cannot be even said to be part of the chain. In fact, if this factor is the part of the chain of circumstances then the chain is totally broken and the basis for convicting the appellant is not sustainable at all. 10. Regarding recovery of the weapon, the Hon'ble Apex Court again in the case of Brijesh Mavi vs. State (NCT of Delhi), (2012) 7 SCC 45 in sub-paras-37 and 38 of Para-35 has held as under-- 35 (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. 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. 35(38). The learned trial Judge himself opined that the recovery having been made after nine months, the weapon might have changed in many hands. In absence of any other evidence, connecting the accused with commission of crime of murder of the deceased, in our opinion, it is not possible to hold that the appellant on the basis of such slander evidence could have been found guilty for commission of offence punishable under Section 302 of the Penal Code." 11. In absence of any other evidence, connecting the accused with commission of crime of murder of the deceased, in our opinion, it is not possible to hold that the appellant on the basis of such slander evidence could have been found guilty for commission of offence punishable under Section 302 of the Penal Code." 11. So far as extra judicial confession is concerned, the Hon'ble Apex Court in the case of Vijay Shankar vs. State of Haryana, (2015) 12 SCC 644 , in paras-18 & 19 has held as under:-- 18. Principles in respect of evidentiary value and reliability of extrajudicial confession have been summarized by this Court in Sahadevan vs. State of T.N., which reads as under:-- "i. The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution; ii. It should be made voluntarily and should be truthful; iii. It should inspire confidence; iv. An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence; v. For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; vi. Such statement essentially has to be proved like any other fact and in accordance with law." 19. Extra-judicial confession is a weak piece of evidence and the courts are to view it with greater care and caution. For an extra-judicial confession to form the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. 12. The other factors, that the crime has been committed at the house of Chhote Lal Soren and the accused has fled away after the occurrence, are also not factors by themselves which can be basis for proving the appellant guilty in the case. The allegation against the appellant that he used to say that his wife and daughter had died due to Witch Craft practices of his two Buas is totally vague. The cause of death of the wife and the daughter of the appellant and the time of death have not been brought on record, and when his wife and daughter had died and how they had died are not on record. 13. The cause of death of the wife and the daughter of the appellant and the time of death have not been brought on record, and when his wife and daughter had died and how they had died are not on record. 13. In view of the above discussions, we find that so much doubt has been created over the circumstances, on which the prosecution has placed reliance, that these circumstances cannot be considered for convicting the appellant. The prosecution has failed to prove the circumstances relying on which the Sessions Judge has convicted the appellant for the offence punishable under Section 302 I.P.C. We find that the prosecution has failed to prove its case to the hilt and as such conviction of the appellant cannot be upheld. 14. In the aforesaid facts, having scrutinized the entire prosecution evidence on record, we arrive at a conclusion that conviction of the appellant u/s. 302 IPC and u/s. 3/4 of the Prevention of Witch (Daain) Practices Act is not sustainable in law and accordingly it is set aside. Consequently, the order of sentence dated 28.10.2010 is set aside. The instant Criminal (Jail) Appeal stands allowed. The sole appellant, namely, Chhote Lal Soren, if not wanted in connection to any other criminal case, shall be released forthwith.