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2018 DIGILAW 2808 (JHR)

Mansu Turi, son of Jojo Turi v. State of Jharkhand

2018-12-20

PRAMATH PATNAIK, PRAMATH PATNAIK, RATNAKER BHENGRA, RATNAKER BHENGRA

body2018
JUDGMENT : Ratnaker Bhengra, J. 1. Heard the parties. 2. This criminal appeal is directed against the judgment of conviction and the order of sentence both dated 04.02.2006, passed by the learned 1st Additional Sessions Judge, Gumla in Sessions Trial No. 231/2004, arising out of Palkot PS Case No. 18/2004 dated 11.05.2004, corresponding to GR No. 276/2004, whereby and whereunder, the appellant was convicted under Section 302 and Section 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.500/- under Section 302 of the Indian Penal Code and rigorous imprisonment for five years and fine of Rs.500/- under Section 201 of the Indian Penal Code. The appellant is to further undergo simple imprisonment for six months in default of payment of the fine. Further both the sentences were ordered to run concurrently. 3. The case of the prosecution as per the written report of the informant, Chowkidar-3/1, Chautha Kharia, PW-6 is that on 11.05.2004 at about 14:00 hours the informant got the information from the villagers that Mansu Turi aged about 50 years R/o village Bagru, PS Palkot, District- Gumla had killed his wife, Faguni Turi aged about 40 years. Accused Mansu Turi had made his wife Faguni Turin drink wine in the night of 09.05.2004 and with the help of the thread of her tabij he had strangulated her to death. In the morning of 11.05.2004 he had buried the dead body in his own house with intention to screen the evidence. It is further stated by the informant that on getting the information, he went to the house of Mansu Turi but he was not present at his home. Mansu Turi had two wives- first was Sukarmani Turin aged about 45 years who lives separately from him at village Bagru, PS Palkot, District Gumla and from whom he has a son named Jagarnath Turi who lives at Goa at present. The second wife was Faguni Turin from whom they have a son Anjan Turi, who had gone for work in the brick kiln at Jahanabad and had returned to the village very recently. The accused Mansu Turi also has two daughters who are married. At the time of the incident Mansu Turi and deceased Faguni Turin were in home. The second wife was Faguni Turin from whom they have a son Anjan Turi, who had gone for work in the brick kiln at Jahanabad and had returned to the village very recently. The accused Mansu Turi also has two daughters who are married. At the time of the incident Mansu Turi and deceased Faguni Turin were in home. According to the villagers, they generally quarreled with each other and due to that Mansu Turi had killed his wife Faguni Turin and with intention to screen the evidence he had buried her in the house. 4. On the basis of the written report of the informant, Palkot P.S. Case No. 18/04 dated 11.05.2004 was registered under Sections 302/201 of the IPC against the accused Mansu Turi. After investigation, charge sheet was submitted against the accused under the above sections. After cognizance the case was committed to the Court of Sessions. The charges were framed against the accused Mansu Turi under Sections 302 and 201 of the IPC which he pleaded not guilty and claimed to be tried. At the conclusion of the trial, the accused was convicted and sentenced as aforesaid. Hence, this appeal. 5. Prosecution examined altogether 12 witnesses in support of its case. PW-1 is Dr. Ajit Kumar Agarwal, PW-2 Mohan Mahli, PW-3 Sukhram Mahli and PW-5 Bitna Mahli are the co-villagers of the accused, PW-6 Choutha Kharia is the informant himself, PW-7 Anjan Turi who is the son of the accused is hostile witness, PW-4 Arjun Turi, PW-8 Sukarmani Devi, PW-9 Basant Barai and PW-10 Nakul Ram, are hearsay witnesses, PW-11 Ranthu Manjhi is the brother of the deceased and PW-12 Pahna Barla is a formal witness. 6. PW-6, Choutha Kharia is the informant of the case. He deposed that he was told by the villagers that Mansu had killed his wife and had buried her in the house. Then he went to the house with 2-4 persons and saw the new dug soil and the dead body. Looking the dead body, he went to the P.S. and made a written report. This witness proved the written report which was in his writing and signature and marked as Ext.2. After receiving the information, police reached there and excavated the dead body. That time he was present there with the villagers. The dead body was excavated from the house of Mansu Turi. This witness proved the written report which was in his writing and signature and marked as Ext.2. After receiving the information, police reached there and excavated the dead body. That time he was present there with the villagers. The dead body was excavated from the house of Mansu Turi. Faguni and Mansu quarreled with each other. During cross-examination, the witness has deposed that who had killed Faguni he does not know. Both the husband and wife quarreled with each other in state of intoxication and they had no enmity with each other. Both lived together and earned their livelihood. 7. PW-1 Dr. Ajit Kumar Agarwal conducted the P.M. examination of the decomposed dead body of Faguni Turin aged about 40 years female, wife of Mansu Turi of village Bangaru, PS Palkot, District-Gumla. On examination of the dead body he found following ante mortem injuries on the dead body: 1. One ligature mark of about ½ cm x ½ cm diameter continuous around lower neck, below the liver of Thyroid cartilage in horizontal direction with collection of blood, inside underlying soft tissues with fracture of larangial cartilage and tracheal rings with laceration of underlying blood vessels. 2. One bruise of about 5” x 4” over right side from the chest. The fracture of 3rd, 4th and 5th ribs with laceration of right side lungs with collection of copious blood inside thorasic cavity. All above mentioned injuries were ante mortem in nature and grievous. Injury No.1 caused by strangulation while No.2 is due to impact of hard and blunt substances. In the opinion of the Doctor, both the injuries were sufficient to cause death in ordinary course of nature either singally or in combination. He said cause of death was due to injury No.1 Asphyxia due to strangulation and injury No.2 shock due to hemorrhage. He further deposed that time elapsed from post mortem was about 3-5 days approximately. He proved the post mortem report which was marked Ext.1. 8. PW-2 Mohan Mahli deposed that Mansu Turi is his co-villager. He deposed that the event occurred five months ago. After the incident the accused came to his house on Tuesday. He was talking like a mad person. He told him that he would purchase some agarbatti and bury his wife. Hearing that he informed the Chowkidar who came and found that someone was buried. Then the Chowkidar informed in the police station. After the incident the accused came to his house on Tuesday. He was talking like a mad person. He told him that he would purchase some agarbatti and bury his wife. Hearing that he informed the Chowkidar who came and found that someone was buried. Then the Chowkidar informed in the police station. Police reached at the house of Mansu Turi and dug out the dead body of his wife. He had killed her and with intention to hide the offence he had buried her. In his cross-examination, he deposed that Mansu Turi was unsound for three years. 9. PW-3 Sukhram Mahli is the neighbour of the accused and his house is beside the house of accused. He deposed that the event occurred ten months ago. Mansu had gone to buy agarbatti where he told that he would show the agarbatti to his wife because he had buried her inside the house after killing. Hearing this he called the chowkidar. Thereafter along with 4-5 persons he saw that something was buried inside the house. The chowkidar informed the police. The police reached there and excavated the dead body of Faguni Turin. Thereafter police sent the body for post mortem. In cross-examination, this witness deposed that Mansu Turi went to purchase agarbatti at about 8:00 a.m. on Tuesday. He went at the shop of Mohan Mahli to purchase agarbatti. 10. PW-5 Bitna Mahli is co-villager of the accused. He deposed that accused lived with his wife Faguni. Sometimes he quarrelled with her. Mansu was telling himself that he had killed Faguni. 11. PW-11 Ranthu Manjhi is the brother of the deceased Faguni. He deposed that Faguni was his sister. In para-3, he deposed that Mansu confessed his guilt before them, which was written by the police and he made his thumb impression on it. 12. PW-12 Pahna Barla is a formal witness. He proved the formal FIR, and confessional statements of Mansu Turi which were marked as Ext.3 and Ext.4 respectively. Arguments of learned counsel for the appellant: 13. In para-3, he deposed that Mansu confessed his guilt before them, which was written by the police and he made his thumb impression on it. 12. PW-12 Pahna Barla is a formal witness. He proved the formal FIR, and confessional statements of Mansu Turi which were marked as Ext.3 and Ext.4 respectively. Arguments of learned counsel for the appellant: 13. Learned counsel for the appellant has argued that this is a case which is purely based on circumstantial evidence and there is no witness who has seen the occurrence, and therefore before conviction can be based on any such allegation that convicts a person under Section 302 IPC with its corresponding sentence, whatever evidence that is claimed to have been brought forward needs to be very cautiously examined. Learned counsel argued that even the informant himself PW-6, who is Choutha Kharia or the Choukidar of the village has not seen the occurrence. Therefore, the informant can also be considered as purely circumstantial witness. PW-2 Mohan Mahli and PW-3 Sukhram Mahli is not an eye witness to the occurrence. Both these witnesses deposed that deceased had said he would show the incense (agarbatti) to his wife and thereafter, they had suspected the killing of the wife by the deceased. Learned counsel further submitted that PW-4 Arjun Turi, PW-8 Sukarmani Devi, PW-9 Basant Barai, PW-10 Nakul Ram are hearsay witnesses. PW-7 Anjan Turi is a hostile witness and even other remaining witnesses have not seen the killing taking place and therefore, entire case against the accused, or the appellant herein rests on purely circumstantial evidences and therefore, serious allegations being made ,some benefit of doubt should be extended to the appellants. 14. Learned counsel for the appellant has then argued that without accepting the guilt of the appellant, there is however another aspect to the matter which has not been considered by the learned trial court below, though there is evidence apparently admitted by the prosecution witnesses themselves to this effect. 14. Learned counsel for the appellant has then argued that without accepting the guilt of the appellant, there is however another aspect to the matter which has not been considered by the learned trial court below, though there is evidence apparently admitted by the prosecution witnesses themselves to this effect. Learned counsel for the appellant says that there is agreed evidence to the extent that there was a quarrel between the husband and the wife, that they had been drinking and moreover, it has also been said by prosecution witnesses that accused Mansu Turi was a mad man and of unsound mind and this has not at all been taken into consideration by the learned trial court though it should have been taken into consideration during trial for either acquitting the accused during the trial itself i.e. conclusion or at the least extending him the most lenient of sentences. It has come from the evidence of PW-6, the informant himself that both the husband and wife had quarreled with each other after drinking. In the evidence of PW-2 Mohan Mahli, it is indicated that when he had met him after the alleged incident, he was talking like a mad person, moreover, PW-2 Mohan Mahli had deposed that Mansu Turi, the appellant, had been of unsound mind for three years. PW-5 Bitna Mahli had also deposed that the accused sometimes quarreled with his wife. PW-7 Anjan Turi who is the son of the accused though declared hostile has deposed that relation between his father and mother was good. Based on the above said witnesses, it seems that the couple often engaged in quarrels and even on the day of the occurrence there was a quarrel and it has been also said that he was of unsound mind for few years. This aspect of the evidence was not taken as a defence on the part of the accused, or the appellant herein; however, it may need to be considered now, particularly, when it has been said so or admitted from the side of the prosecution witness, and this may help in the acquittal of the appellant or at least giving him the minimum sentence. 15. 15. Learned counsel for the appellant has also argued that there was other witnesses who are said to have gone after the incident to dig out the body; however, the names have not been revealed by the witnesses concerned. For instance, the informant PW-6 or Choutha Kharia, the Choukidar, said that he went to the house with two to four persons and saw the dug soil there and also he was there, when the body was excavated. He has however not mentioned who these two to four persons were there who had gone to see the place and also who were the persons who had carried out the excavation. In the evidence of PW-2 Mohan Mahli also it is said that the dead body was dug out, but who dug out the body has not been indicated. Even from the evidence of PW-3 Sukhram Mahli, it is indicated that after he had come to know that something was amiss, because the accused was talking about showing incense (agarbatti) to his wife who was buried in the house, after informing the watchman, four to five other persons had also gone to the house of the accused to see the situation. However, who these four to five persons were there are not indicated. Therefore, learned counsel submitted that from the other remaining witnesses also it is not made out as to who were the persons who excavated or dug out the body. Learned counsel, therefore, says that in such a situation no offence can also be made out under Section 201 of the IPC when no one has come forward who have dug out the body. Therefore, if there is no witness for digging out the body, which has allegedly been murdered, therefore, both Sections 302 and 201 IPC would therefore collapse due to lack of direct evidence. 16. Learned counsel has also argued that it is not accepted that a criminal will bury the victim in his own house. The natural or common action is to dispose of the body somewhere else by taking into a remote area or a distant area or into the forest or dumping into a nala or burring it somewhere in the forest, but, all this has not been done. But it has been alleged that the accused buried the dead body in his house itself, which is not a very natural or cogent explanation. 17. But it has been alleged that the accused buried the dead body in his house itself, which is not a very natural or cogent explanation. 17. Moreover, learned counsel for the appellant has argued that one of the grounds for conviction has been the extra judicial confessions. Learned counsel has however said that these extra judicial confessions need to be taken with utmost precaution, particularly, when they have not been corroborated by any other evidence. Lastly, learned counsel submitted that the impugned judgment of learned court below is without evidence and requires to be set aside. Arguments of learned counsel for the State: 18. Learned counsel for the State has however on the contrary argued that if it were not for circumstantial evidence, then scourge of criminals would be allowed to go scot free and roam the streets of the cities and towns of the State. The circumstantial evidences in the matter is a vital piece of evidence, and even though nobody saw the action of exact killing but the circumstantial evidences conclude otherwise. He argued that there is extra judicial confession made before many of the villagers and that has then been corroborated by the finding of the dead body in the house of the accused, or the appellant himself. So linking these two aspects the circumstances are such that the guilt of the accused is fully proved and therefore, conviction needs to be upheld along with the corresponding sentence that has been imposed. 19. Learned counsel for the State has pointed out from the evidence of PW-2 Mohan Mahli that after the incident he had encountered the appellant. Appellant had come through his house on Tuesday and he was rambling like a mad person. The appellant told him that he would purchase some agarbatti and fix near his wife. Hearing this, this witness PW-2 has then informed the Chowkidar and thereafter they had gone to the place of occurrence and found that in fact someone was buried. Similarly, PW-3 Sukhram Mahli has deposed that Mansu, the appellant, had gone to buy some agarbatti when he told that he would show the agarbatti to his wife because he had buried her after killing. On hearing this, he then called the Chowkidar and thereafter with four to five persons they went to the place of occurrence and saw that something was buried inside the house. On hearing this, he then called the Chowkidar and thereafter with four to five persons they went to the place of occurrence and saw that something was buried inside the house. Subsequently, the police reached to the place and the dead body of Faguni Turin was excavated. Counsel for the State therefore says that from the evidence of PW-3, it is clear that accused had confessed and told to this witness that he had killed his wife and buried her after killing. Therefore, this confession is there and it has been made to the resident of the village and thereafter when the dead body is excavated and found in the house of the accused itself it corroborates the confession. Even PW-5 Bitna Mahli has deposed that accused himself told that he had killed his wife and thereafter the dead body was excavated by the police and he had seen the ditch too. 20. Learned counsel for the State further pointed out that from the evidence of PW-2, PW-3 and PW-5, it is apparent that he had told these three persons and possibly others also that he had killed his wife and buried her. On this information, the Chowkidar including some of the witnesses and other persons had gone to the place of occurrence and excavated the dead body from the house itself. So the confession of the appellant led to the discovery of the body and that too in his house itself and nowhere else and therefore, the appellant cannot escape from the conviction for the offences under Sections 302 and 201 IPC and the corresponding sentences imposed. 21. Learned counsel for the State, regarding the confessional statement, has pointed out that even PW-11 Ranthu Manjhi has deposed that Mansu confessed his guilt before them, which was written by the police and he made his thumb impression upon that. Lastly, learned counsel for the State submitted that judgment of conviction passed by the learned court below is proper and requires no interference. FINDINGS 22. After scrutinizing the prosecution witnesses, we are of the opinion that the learned trial court has proceeded on certain assumptions and presumptions, which are not well-founded in law and merely, on the suspicion raised by the prosecution witnesses and the confessional statement by the appellant before the P.Ws. 2, 3 and 11 coupled with the medical report. FINDINGS 22. After scrutinizing the prosecution witnesses, we are of the opinion that the learned trial court has proceeded on certain assumptions and presumptions, which are not well-founded in law and merely, on the suspicion raised by the prosecution witnesses and the confessional statement by the appellant before the P.Ws. 2, 3 and 11 coupled with the medical report. Learned trial court having placed implicit reliance on the aforesaid fact, has found the appellant to have committed murder of his wife. 23. Another circumstances, which have been taken into consideration by the learned trial court for convicting the appellant for the offence under Section 302 I.P.C. is that the appellant has failed to give any reasonable explanation about the murder of his wife. It would not be out of place to record that soon after death, the accused was found inside the house, therefore, the learned trial court has proceeded contrary to the well-settled principal of law that in criminal jurisprudence, it is for the prosecution to establish the proof beyond all reasonable doubts and it is not for the defence except in cases, where the burden to prove that he has not committed the offence. Law is well-settled that the prosecution must stand on its own legs and it cannot derive any strength from the weaknesses of the defence. In the above facts and circumstances, we find that the learned trial court has committed serious error in law in convicting the appellant for the offence under Section 302 read with Section 201 I.P.C. on the basis of such scanty piece of evidence and in our opinion, the appellant cannot be held guilty for the offences under Section 302 IPC. The evidences led by the Prosecution during Sessions trial do not infuse any confidence in the mind of the Court that the appellant alone has committed the murder of his wife. It has been consistently held that in case of circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be unbelievable with the innocence of the accused. It is not sufficient that some of the circumstances proved by the prosecution raises finger of suspicion to the accused. It has been consistently held that in case of circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be unbelievable with the innocence of the accused. It is not sufficient that some of the circumstances proved by the prosecution raises finger of suspicion to the accused. It must be found that all incriminating circumstances indicate that it was the accused only, and no other hypothesis, except the guilt of the accused and the facts and circumstances can be inferred. After all, in all criminal trials, guilt of accused has to be proved to the hilt. Merely, because the appellant happens to be the husband of the deceased-lady, who was found dead and kept inside the house of the appellant, no presumption on the guilt of the appellant can be drawn. 24. In view of the aforesaid facts and having regard to the circumstances proved by the prosecution for bringing home charge of murder under Section 302 read with Section 34 I.P.C. against the appellant, we are of the opinion that the prosecution has miserably failed to prove the charge against the appellant. The then learned 01st Additional Sessions Judge, Gumla has committed serious error in law in convicting the appellant for the offence under Section 302 I.P.C. and sentencing him to undergo R.I. for life and 5 years for the offence under Section 201 with default clauses with further direction for both the sentence to run concurrently. 25. In the result, the judgment of conviction and order of sentence dated 04.02.2006, passed in Sessions Trial No. 231 of 2004 are hereby set aside. The appellant shall be released forthwith, in case, he is not required in connection with any other criminal case. 26. The instant Cr. Appeal (DB) No.295 of 2013 stands allowed. Pramath Patnaik, J. : I agree.