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2018 DIGILAW 193 (JHR)

Bijay Kujur v. State of Jharkhand

2018-01-23

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : No one appears for the appellant, in spite of repeated calls. As the appellant is in custody for a long time, Smt. Rashmi Kumar, Advocate is appointed as amicus curiae by the Court on behalf of the appellant. 2. Heard learned amicus curiae for the appellant as also learned counsel for the State. 3. The appellant is aggrieved by the judgment of conviction dated 31.8.2005 and order of sentence dated 2.9.2005, passed by the learned Additional Sessions Judge, FTC-I, Gumla, in Sessions Trial No. 236 of 2004, whereby, the 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 own daughter, aged about 4 years. Upon hearing on the point of sentence, the appellant has been sentenced to undergo life imprisonment for the said offence. 4. The prosecution case was instituted on the basis of the fardbeyan on Prabha Kujur, the wife of the accused and the mother of the deceased which was recorded on 26.4.2004 at about 7:45 p.m. at Bazar Tanr. Dumri. It is stated in the fardbeyan that the accused used to assault his wife, due to which, out of fear of her husband, she used to sleep in the house of her neighbour. On 24.4.2004 after taking her meals in the house she was going to sleep in the house of her neighbor but her son Akbar Kujur, aged about 6 and 1/2 years, slept in the house itself. She took her daughter Arpana Kujur, along with her and went to sleep in her neighbour's house. At about 8:00 p.m., her husband came there and forcibly brought the daughter along with him stating that she will sleep with him. On the next day, i.e., on 25.4.2004 in the morning, when the informant went to her house, she found her daughter dead with injuries on her body. She was informed by her son Akbar Kujur that the father had killed the daughter. She has stated that she could not inform the police that day, out of fear of her husband. On the next day, i.e., on 25.4.2004 in the morning, when the informant went to her house, she found her daughter dead with injuries on her body. She was informed by her son Akbar Kujur that the father had killed the daughter. She has stated that she could not inform the police that day, out of fear of her husband. The fardbeyan of the aforesaid occurrence was given on the next day, i.e., on 26.4.2004, on the basis of which, Dumri P.S. Case No. 11 of 2004, corresponding to G.R. No. 240 of 2004, was instituted against the accused for the offence under Section 302 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 5. After commitment of the case to the Court of Sessions, 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. 6. In course of trial eighteen witnesses were examined on behalf of the prosecution, out of whom. PW1 Santosh Kumar, PW3 Arnush Kujur, PW4 Lalit Kujur, PW5 Bartholonies Barla, who is the neighbor of the informant and whose house she had gone to sleep, PW6 Josenious Tirkey, PW8 Rajaria Minz, PW10 Ritesh Minz, PW11 Santosh Kujur, PW12 Vijay Minz, PW13 Anil Kujur, PW15 Silvestar Minz and PW17 Agastin Baxla have turned hostile and have not supported the prosecution case. PW4 Lalit Kujur is also a witness to the fardbeyan and the inquest report and he has identified his signatures on the fardbeyan and the inquest report, and PW6 Josenious Tirkey is also a witness to the inquest report, and his signature was also identified, and the signatures were marked Exhibits 1/1, 2 and 2/1. 7. PW2 Prabha Kujur is the informant and the mother of the deceased. She has supported the prosecution case stating that on 24.4.2004 in the night, she had gone to sleep in the house of Bartholonies Barla along with her daughter Arpana Kujur, and her son Akbar Kujur had slept in the house. She used to go to sleep in the house of Bartholonies out of fear of her husband and Bartholonies was her uncle in relation. She used to go to sleep in the house of Bartholonies out of fear of her husband and Bartholonies was her uncle in relation. She reached his house at about 8 p.m. and her husband also followed her and he forcibly took away the daughter Arpana Kujur along with him, stating that she would sleep with him. She did not go to her house out of fear. On the next day in the morning at about 7 a.m., she went to her house and found the dead-body of her daughter with injuries. Her son Akbar Kujur informed her that the father had strangulated the deceased. She has stated that she gave the fardbeyan to the police which was read over to her and she put her signature on the fardbeyan. She was identified her signature and the signature of Lalit Kujur on the fardbeyan which were marked Exhibits 1 and 1/1. Thereafter, the dead-body of her daughter was sent to Gumla. This witness was put to cross-examination and she has stated in her cross-examination that she started going to the house of Bartholonies to sleep when her husband became mentally ill. She has stated that about one year prior to the occurrence, her husband had become of unsound mind and he used to quarrel. She has also stated that at the time of occurrence also, her husband was of unsound mind. There is nothing of much importance in her further cross-examination. 8. PW7 Jabarial Kujur is a hearsay witness. He has stated that on 25.4.2004 he heard the cries of the wife of Bijay Kujur, thereupon, he went there and saw the dead body of her daughter Arpana Kujur. He has stated that he was informed by the wife of the accused that the accused had committed the murder of the deceased. This witness has also stated that the accused always used to quarrel with his wife and he was of unsound mind. In his cross-examination also, this witness has stated that the accused, Bijay was of unsound mind and he used to be kept in chains. 9. PW14 Sabestian Tirkey is another hearsay witness who has stated that he learnt about the occurrence in the morning that the accused had committed the murder of his daughter. In his cross-examination, this witness has also stated that the accused used to behave like a person of unsound mind. 10. 9. PW14 Sabestian Tirkey is another hearsay witness who has stated that he learnt about the occurrence in the morning that the accused had committed the murder of his daughter. In his cross-examination, this witness has also stated that the accused used to behave like a person of unsound mind. 10. PW16 Antonious Kujur has also supported the case as a hearsay witness, stating that he was informed by the villagers that the accused had committed the murder of his daughter. He has also stated that the accused was mentally ill. 11. PW9 Kameshwar Nath Tiwary is the Medical Officer who had conducted the post-mortem examination on the dead body of the deceased, a female child about four years old, on 26.4.2004. In the facts of this case, the findings given by the Medical Officer about the ante mortem injuries on the dead body, need not be discussed in detail, rather suffice would be to say that the death was found to had been caused by asphyxia due to throttling. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-3. 12. PW18 Ajay Kumar Singh is the Investigating Officer of the case. He has stated that on 26.4.2004 he was informed about the murder of a girl, whereupon he proceeded towards the place of occurrence. When he reached near Dumri Bazar, he saw that people were bringing the dead body to the Police Station. He recorded the fardbeyan of the informant. Prabha Kujur which he has identified to be in his pen and signature, and the same was marked Exhibit-4. He has proved the inquest report as also the FIR, and the same were marked Exhibits 5 and 6 respectively. He has stated that he recorded the statements of the witnesses, he inspected the place of occurrence and after getting the post-mortem report, he submitted the charge-sheet against the accused. He has also proved the charge-sheet, which was marked Exhibit-7. In his cross-examination this witness has stated that he was informed by the witnesses that the accused was of unsound mind, but to the Court's question, this witness has stated that at the time of arrest, he had not found him mentally ill. 13. The statement of the accused was recorded under Section 313 of the CrPC, wherein he has denied the evidence against him. No evidence was adduced by the defence. 13. The statement of the accused was recorded under Section 313 of the CrPC, wherein he has denied the evidence against him. No evidence was adduced by the defence. On the basis of these evidences on record the accused has been convicted and sentenced for the offence as aforesaid. 14. Learned amicus curiae arguing for the appellant has submitted that the impugned judgment of conviction and order of sentence passed by the trial Court below suffers from inherent illegality and the same cannot be sustained in the eyes of law. It is submitted by the learned counsel that the prosecution has failed to bring home the charge against the accused beyond all reasonable doubts, inasmuch as, most of the witnesses have turned hostile and the witnesses who have supported the prosecution case are only the hearsay witnesses. There is no eye-witness to the occurrence and all the hearsay witnesses, including the informant PW2 Prabha Kujur, have stated that the appellant was of unsound mind since about one-year prior to the occurrence. She has also stated that due to his mental unsoundness, he used to quarrel with her and out of his fear she used to sleep in the house of the neighbor. The other witnesses who have stated that he was of unsound mind. It is also submitted by the learned amicus curiae that the only eyewitness to the occurrence, i.e., the son of the informant and the accused, has not been examined in the case. Learned amicus curiae accordingly, submitted that it is a fit case in which, the accused ought to have been acquitted by the trial Court below. 15. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that PW2 Prabha Kujur, the informant in the case has fully supported the case, stating that in the night at about 8 p.m., the girl was snatched away from her and taken to the house by the accused, and in the morning, she found the child dead with the injuries. The other hearsay witnesses have also supported the fact. It is submitted by the learned counsel that though only the hearsay witnesses have been examined in this case, but the circumstantial evidence is clearly against this appellant, inasmuch as the dead-body of the deceased was found in the house of the appellant. The other hearsay witnesses have also supported the fact. It is submitted by the learned counsel that though only the hearsay witnesses have been examined in this case, but the circumstantial evidence is clearly against this appellant, inasmuch as the dead-body of the deceased was found in the house of the appellant. The medical evidence of PW9 Kameshwar Nath Tiwary also supports the fact that the deceased was strangulated to death. Learned counsel accordingly, submitted that there is no illegality in the impugned judgment of conviction and order of sentence passed by the trial Court below. 16. Having heard the learned counsels for both sides and upon going through the record, we find that the evidence of the hearsay witnesses, particularly PW2 Prabha Kujur, the informant is fully supportive of the fact that the accused had assaulted his daughter aged about four years, causing her unfortunate death. The evidences of these witnesses are also supported by the medical evidence of PW9 Kameshwar Nath Tiwary and the post mortem report proved by him as Exhibit-3. The fact, however, remains that all the witnesses who have supported the case, including the informant PW2 Prabha Kujur, have stated that the appellant was of unsound mind from about one year prior to the date of occurrence. PW7 Jabarial Kujur has stated that the accused used to be kept in chains due to his unsoundness of mind. The evidence regarding the mental illness of the accused appears to be prima facie correct, in view of the fact that the informant has clearly stated that out of fear of the accused she used to go to sleep in the house of her neighbour. Had this not been the fact there was no occasion for the informant to go to sleep in the house of her neighbour. Even the I.O. of the case, PW18 Ajay Kumar Singh, has stated that during investigation, he was informed by the witnesses that the accused was of unsound mind. However, to the Court's question, he has stated that he had not found him mentally ill at the time of his arrest. The fact, however, remains that when the I.O. was informed that the accused was suffering from mental illness, he ought to have gathered further evidence in this regard about the mental illness of the accused, but he did not. The fact, however, remains that when the I.O. was informed that the accused was suffering from mental illness, he ought to have gathered further evidence in this regard about the mental illness of the accused, but he did not. In that view of the matter, particularly, taking into consideration, the evidence of PW2 Prabha Kujur, it cannot be ruled out that the appellant might have assaulted his daughter to death in the fit of unsoundness of his mind and his case might be covered by General Exception under Section 84 of the Indian Penal Code. It is also apparent that though there is only one eye-witness to the occurrence, who is the son of the accused and the informant, but that witness has also not been examined in the case. In the facts of this case, we are of the considered view that even though the informant and the hearsay witnesses have supported the prosecution case, but the appellant was entitled to the benefits of doubt, and the impugned judgment cannot be sustained in the eyes of law. 17. In view of the aforesaid discussions, the impugned judgment of conviction dated 31.8.2005 and order of sentence dated 2.9.2005, passed by the learned Additional Sessions Judge, FTC-I, Gumla, in Sessions Trial No. 236 of 2004, are hereby, set aside. The appellant Bijay Kujur is given the benefits of doubt and he is acquitted of the charge. The appellant is in custody, undergoing the sentence. Let him be released and set at liberty forthwith; if his detention is not required in any other case. 18. Before parting with this judgment, we must record that we have been given able assistance by the learned amicus curiae, Smt. Rashmi Kumar, and we direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned Amicus Curiae. Let a copy of this judgment be sent to the Secretary, High Court Legal Services Committee, for the needful. 19. 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. Appeal allowed.