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2018 DIGILAW 1465 (JHR)

Shankar Mahli v. State of Jharkhand

2018-07-07

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : Heard learned counsel for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 26th of February, 2010 and Order of sentence dated 8th of March, 2010, passed by the learned Additional Sessions Judge, FTC, Simdega, in Sessions Trial No. 127 of 2006, whereby, the sole appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code, on the allegation that he had committed the murder of his two wives. Upon hearing on the point of sentence, this appellant has been sentenced to undergo imprisonment for life and fine of Rs. 20,000/-, for the said offence. 3. The prosecution case was instituted on the basis of fardbeyan of the informant Durjan Mahali, who is brother of one of the deceased. In his fardbeyan, he has stated that on 29.6.2006, while he was at his house at about 7.00 A.M., one lady Nilmati Devi, the wife of his sister's son Hira, brought a child, aged about 5 years, who was his sister’s son from the accused, and informed him that his brother-in-law Shankar Mahli had committed the murder of both of his wives and had fled away from the house. On this information, the informant went there and found the dead bodies in the house. Sukhdil Mahali, another son of his deceased sister, came from a neighboring house, and informed him that on the previous day at about 5.00 P.M., the accused appellant brought liquor and he ate and drank with both his wives and there was some quarrel between them and, thereafter, he assaulted both of his wives to death and fled away. This witness saw the dead bodies of both the ladies in the house, and one axe was also lying there. He has stated that the ex-husband of his sister had died leaving behind his sister and two sons, and after the death of her ex-husband, she had married the present accused, and two sons from her ex-husband were living together separately, nearby. On the basis of the fardbeyan, Simdega P.S. Case No. 82 of 2006, corresponding to G.R. No. 235 of 2006, was instituted for the offence under Section 302 of the Indian Penal Code, against the sole accused Shankar Mahli, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. On the basis of the fardbeyan, Simdega P.S. Case No. 82 of 2006, corresponding to G.R. No. 235 of 2006, was instituted for the offence under Section 302 of the Indian Penal Code, against the sole accused Shankar Mahli, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against the accused for the offence under Section 302 of the Indian Penal Code, and upon the accused’s pleading not guilty and claiming to be tried, he was put to trial. 5. In course of trial, five witnesses were examined by the prosecution, out of whom, P.W.-5 Dr. Krishna Deo Chaudhary had conducted the post-mortem examinations upon the dead bodies of both the deceased and he has proved the post-mortem reports as Exhibits- 3 and 3/1. Suffice would be to say that there were incised injuries, on the skull of both the deceased, deep up to cranial cavity, cutting the brain matter, which was the cause of death. Two I.Os., P.W.-3 Ram Baran Singh and P.W.-4 Amarnath have proved the necessary documents, i.e., formal F.I.R., fardbeyan, etc. 6. Two material witnesses have been examined by the prosecution, out of whom, P.W.-2 Durjan Mahali, the informant of the case, has turned hostile and has not supported the prosecution case, though, he has stated that upon being informed about the occurrence by Nilmati Devi, he had visited his sister’s house and found the dead bodies in the house. He has also stated that no one was present in the house and Shankar Mahli had fled away and he has no knowledge as to where he had gone. He has stated that he had given the fardbeyan to the police, and the police had also seized a blood stained axe from the place of occurrence, and he had put his thumb impression on both these documents, but he has stated that he was not informed about the occurrence by Sukhdil Mahali, and at this point he turned hostile. 7. P.W.-1 Nilmati Devi, who is the wife of Hira Mahli, son of one deceased from her ex-husband, has only stated that she had visited the house of the accused, who is related to her as father-in-law, where his child was crying, where she had found the dead bodies of both the wives of the accused. 7. P.W.-1 Nilmati Devi, who is the wife of Hira Mahli, son of one deceased from her ex-husband, has only stated that she had visited the house of the accused, who is related to her as father-in-law, where his child was crying, where she had found the dead bodies of both the wives of the accused. She brought the child to his maternal uncle Durjan Mahali, the informant, and informed him about the occurrence and whatever she had heard about it. Shankar Mahli had fled away. She has stated that subsequently she learnt that the accused had committed the murder of both the deceased. Admittedly, she is not the eyewitness to the occurrence, and she has stated in her cross-examination that she had not seen the occurrence, rather she had learnt about it from the villagers. 8. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein the accused has taken the plea that he was not present at the time of occurrence and he has no knowledge as to how both his wives died. 9. From the evidence on record it is thus, apparent that this is a case of no evidence against the appellant, even to the fact that at or about the time of occurrence, he was seen in the company of his wives, or he was present at the place of occurrence. There is no evidence to show that he was seen fleeing away from the place of occurrence and there is also no evidence that he was present in the village on the date of occurrence. The only circumstance against this appellant is that the dead bodies were found in his house and he was absconding. There is absolutely no scientific investigation in the matter to rope in the accused with the help of fingerprints etc., on the blood stained axe. The main I.O., P.W.-3 Ram Baran Singh has specifically admitted in his cross-examination that he had not sent the recovered axe for any forensic examination. Though this witness has stated in his evidence that the accused himself surrendered at the Police Station on 2.7.2006, he was arrested, and he confessed his guilt, but it is apparent that there is no recovery on the basis of his alleged confessional statement, and this piece of evidence is not admissible in law. 10. Though this witness has stated in his evidence that the accused himself surrendered at the Police Station on 2.7.2006, he was arrested, and he confessed his guilt, but it is apparent that there is no recovery on the basis of his alleged confessional statement, and this piece of evidence is not admissible in law. 10. This apart, from the material on record, it is apparent that two sons of the deceased sister of the informant from her ex-husband, were living in the neighborhood, and P.W.-1 Nilmati Devi, is the wife of one of them, living with her husband. The informant Durjan Mahali, initially claimed in the F.I.R., to be informed about the occurrence by the son of his deceased sister from her ex-husband, but in his evidence he has turned hostile on this point. None of the two sons of the deceased lady has been examined in the case. It is also not explained at all as to why the sons of the deceased lady living in the neighborhood had not become the informant in the case and informed the police about the occurrence. 11. We are of the considered view that in absence of the evidence that the appellant was seen in company with his wives, or in absence of any evidence to the fact that the appellant was present at the place of occurrence soon before the occurrence, the only circumstances that the appellant is the husband of both the deceased ladies, their dead bodies were found in his house and he was found absconding, are not enough to convict the appellant for the offence charged, and as such, the conviction and sentence of the appellant cannot be sustained in the eyes of law, and the accused appellant was entitled at least to the benefits of doubt. As such, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law. 12. For the forgoing reasons, the impugned Judgment of conviction dated 26th of February, 2010 and Order of sentence dated 8th of March, 2010, passed by the learned Additional Sessions Judge, FTC, Simdega, in Sessions Trial No. 127 of 2006, convicting and sentencing the appellant Shankar Mahli, for the offence under Section 302 of the Indian Penal Code, are hereby, set aside. Consequently, the appellant is given the benefits of doubt and he is acquitted of the charge. The appellant Shankar Mahli is in custody undergoing the sentence. Let him be released and set as liberty forthwith, if his detention is not required in any other case. 13. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.