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2019 DIGILAW 1833 (JHR)

Nakul Sah @ Nako Sah v. State of Jharkhand

2019-11-07

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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ORDER : 1. These criminal appeals, Cr. Appeal (D.B.) No. 412 of 2001 on behalf of Nakul Sah @ Nako Sah and Cr. Appeal (D.B.) No. 439 of 2001 on behalf of Raj Kumari Devi, have been preferred against the judgment of conviction under section 302/34 IPC and under section 201/34 IPC and the order of sentence of RI for life under section 302/34 IPC and RI for seven years under section 201/34 IPC, both dated 30.08.2001, passed against the above-named appellants in Sessions Case No. 76 of 2000 and 15 of 2000. 2. The appellant, namely, Raj Kumari Devi in Cr. Appeal (D.B.) No. 439 of 2001 has been released on bail vide order dated 05.02.2002 passed by this Court and the appellant, namely, Nakul Sah @ Nako Sah in Cr. Appeal (D.B.) No. 412 of 2001 has been released on bail vide order dated 02.01.2002. 3. The informant of this case, namely, Rita Devi is mother of Suraj Sah, the deceased, who was aged about 6 years. On the basis of her fardbeyan recorded at 5:30 p.m. on 20.04.2000 at Basant Rai Outpost (Pathargama Police Station), Pathargama P.S. Case No. 48 of 2000 was registered against the appellants under sections 302/201/34 IPC on 21.04.2000. 4. In her fardbeyan, the informant has stated that Raj Kumari Devi, her younger sister-in- law, who is wife of the brother of her husband and Nakul Sah have murdered her son Suraj Sah. She has lastly seen her son peeling potatoes with Raj Kumari Devi at about 19:00 hrs. on 19.04.2000. However, when her son did not come back home by 20:00 hours she inquired from Raj Kumari Devi about her son who informed her that her son has gone away. At that time, Nakul Sah was present in the house of Raj Kumari Devi and when she inquired about her son from him he did not give proper reply. Thereafter the informant started search for her son however he could not be traced out and next day afternoon at about 16:00 hrs. Raj Kumari Devi on further query informed her and Badamia Devi, her aunt-in-law, that she has killed Suraj Sah by throwing him in the well. On such information, the informant along with some villagers have found Suraj Sah in the well of Netaji. 5. Raj Kumari Devi on further query informed her and Badamia Devi, her aunt-in-law, that she has killed Suraj Sah by throwing him in the well. On such information, the informant along with some villagers have found Suraj Sah in the well of Netaji. 5. During the trial, the prosecution has examined 10 witnesses, the informant is PW-9 and the Investigating Officer is PW-10. 6. Along with the informant, the prosecution witnesses, namely, Suraj Marandi PW-4, Shanti Devi PW-6 and Badamia Devi PW-7 have been examined by the prosecution on the point of last-seen-together. 7. Dr. Pradeep Kumar Sinha, PW-1, who has conducted the postmortem examination, has observed fine blood-tinged froth coming from the nostrils of Suraj Sah. His eyelid and tongue both were swollen, and the lungs, liver, spleen and kidney were congested. On squeezing his lungs with finger froth and water came out and his stomach was also found containing large amount of water including undigested food (rice and pulses). According to the doctor, the time elapsed since death was within 48 hours of the postmortem examination; postmortem examination was conducted at about 14:15 hrs. on 21.04.2000. 8. In the opinion of the doctor, cause of death was due to shock and asphyxia as a result of drowning. 9. The case set up by the prosecution against the appellants is that due to a suspicion nurtured by Raj Kumari Devi that the informant has killed her 17 days old son by practicing witchcraft she has killed Suraj Sah by throwing him in the well and in the crime, Nakul Sah, her paramour, has also played an equal role. 10. To prove its case against the appellants, the prosecution has relied on: (i) last-seen-together evidence, (ii) extra-judicial confession of Raj Kumari Devi, (iii) her confessional statement recorded by the police , (iv) recovery of the dead body of Suraj Sah from the well, (v) the medical evidence and (vi) motive. 11. The main contentions raised by the learned counsels and the learned Amicus who appear for the appellants in both these criminal appeals are that: (i) the last-seen-together evidence relied upon by the prosecution against the appellants is unreliable, (ii) the extra-judicial confession of Raj Kumari Devi is not proved and (iii) the chain of circumstances is not complete. 12. Mr. Pankaj Kumar, the learned counsel who appears for Nakul Sah who is the appellant in Cr. 12. Mr. Pankaj Kumar, the learned counsel who appears for Nakul Sah who is the appellant in Cr. Appeal (DB) No. 412 of 2001 submits that not only the prosecution has failed to attribute any motive on Nakul Sah for committing murder of Suraj Sah, no reliable and trustworthy evidence has been led by the prosecution to establish the charge of murder of Suraj Sah with the aid of section 34 IPC. 13. In a catena of judgments the Hon’ble Supreme Court has discussed the law on circumstantial evidence, the earliest one was in Bhagat Ram vs. State of Punjab, AIR 1954 SC 621 . It has been observed that where the case depends upon the circumstantial evidence the cumulative effect of the incriminating circumstances must be such as to negate the innocence of the accused and bring home the offence beyond all reasonable doubt. In Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 , the Supreme Court has observed that: “12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.” 14. The prosecution has led evidence on last-seen-together through PW-4, PW-6, PW-7 and PW-9, PW-4 is an independent witness. PW-4 has deposed in court that in the night of 19.04.2000 when he was going to purchase mustered oil from the shop of Hare Ram, across the road near a Jamun tree he has seen the accused persons going along with Suraj Sah; Raj Kumari Devi was holding the hand of Suraj Sah. His house is about one mile or about 2000 hands away from the shop of Hare Ram. But the distance between the Jamun tree and his house has not come in evidence. His house is about one mile or about 2000 hands away from the shop of Hare Ram. But the distance between the Jamun tree and his house has not come in evidence. He has stated that when he came back home his wife took him on the back side of the house where he found the pigs trembling due to fear. His wife informed him that she has heard sound of something falling in the well and on hearing such sound the pigs became restless. Next day afternoon at about 16:00 hrs dead body of Suraj Sah was recovered from the well. This witness has identified both the appellants in the dock. In his cross-examination, he has reiterated that he has seen Suraj Sah with the appellants on the same road through which he was going to the shop, however, he did not make any inquiry from them. He has stated that his statement was recorded before the police and he made a statement before the police about his wife informing him about falling an object in the well and the pigs becoming restless. PW-6 is the mother-in-law of Raj Kumari Devi, the accused. In her examination-in-chief, she has stated that in the evening of the incident she along with Raj Kumari Devi and Suraj Sah, her grand-child, were peeling potatoes. At that time, Nakku (Nakul Sah) was also there. After some time, she has gone to the shop and after some transaction when she comes back she finds that no body was there. In the meantime, mother of Suraj Sah started searching for him however he was not traced out. She has stated about the informant asking Raj Kumari Devi about her son, dead body of Suraj Sah found in the well the next day and Raj Kumari Devi confessing that she has thrown Suraj in the well due to which he has died. The prosecution witness, namely, Badamia Devi PW-7 is aunt-in-law of the informant. She had come to the house of the informant for visiting a fair. She has also deposed about Suraj Sah peeling potatoes with Raj Kumari Devi, search for him and recovery of his dead body from the well. The prosecution witness, namely, Badamia Devi PW-7 is aunt-in-law of the informant. She had come to the house of the informant for visiting a fair. She has also deposed about Suraj Sah peeling potatoes with Raj Kumari Devi, search for him and recovery of his dead body from the well. The informant has stated that it was a Wednesday evening, about 9 months before, when she has seen her son peeling potatoes with Raj Kumari Devi and when she asked her son to come for dinner he said that he would take dinner with his aunt. However, even after about half an hour when he did not come back she enquired about him from Raj Kumari Devi and Nakul Sah, but both of them gave unsatisfactory replies. 15. The evidence of PW-4 on the last-seen-together is sought to be impeached by the learned counsels appearing for the appellants by referring to the statement of PW-6 in paragraph no. -24 of her cross-examination wherein she has stated that in the night of the incident she did not sell mustered oil to any male Adivasi. 16. From the testimony of PW-6, PW-7 and PW-9, we find that the prosecution has firmly established that in the evening of 19.4.2000 Suraj Sah was seen in the company of the appellants and after sometime they were not found in the house. Through the evidence of PW-4 the prosecution has sought to provide an additional circumstances in the chain of circumstances to the effect that Suraj Sah was seen in the company of the appellants outside the house, across the road near a Jamun tree. Presence of PW-6, PW-7 and PW-9 in their house in the evening of 19.4.2000 is natural. In fact, there is no serious challenge by the defence on their presence in the house in the evening of 19.4.2000. The prosecution witness, namely, Suraj Marandi PW-4 is a co-villager and neighbour of the informant. His presence in the evening of 19.4.2000 in the village is also not challenged by the defence. These witnesses have remained unshaken during their cross-examination on the point of the appellants and the deceased last-seen-together. The prosecution witness, namely, Suraj Marandi PW-4 is a co-villager and neighbour of the informant. His presence in the evening of 19.4.2000 in the village is also not challenged by the defence. These witnesses have remained unshaken during their cross-examination on the point of the appellants and the deceased last-seen-together. Now in view of their consistent evidence, a statement by PW-6 in her cross-examination that in the evening of 19.4.2000 she did not sell mustered oil to any male Adivasi would not create any doubt on the prosecution’s evidence that in the fateful evening Suraj Sah was seen lastly in the company of the appellants in the house of Raj Kumari Devi and thereafter seen by PW-4 going with the appellants. From the evidence of PW-4, PW-6, PW-7 and PW-9, the prosecution has proved that Suraj Sah was last seen in the company of the appellants and the next day his dead body was recovered from a well. 17. In Navaneethakrishnan vs. State, (2018) 16 SCC 161 , the Supreme Court has observed thus: “22.........It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and requires corroboration.” 18. Another incriminating circumstance taken against the appellants is the extra-judicial confession of Raj Kumari Devi before the informant and PW-6. In her cross-examination, presumably when she was confronted with her statement recorded under section 161 Cr.P.C. PW-6 has asserted that she made a statement before the police that Raj Kumari Devi informed her that Nakku (Nakul Sah) has killed her son and thrown his dead body in the well. In her cross-examination, she has also stated that she did inform the police that after sometime Raj Kumari Devi came back home and previously while quarreling with her she used to threaten that she would kill her son. The Investigating Officer has, however, affirmed that such statements were not given by her before him. In her cross-examination, she has also stated that she did inform the police that after sometime Raj Kumari Devi came back home and previously while quarreling with her she used to threaten that she would kill her son. The Investigating Officer has, however, affirmed that such statements were not given by her before him. But, no suggestion was given to her that she has not spoken about confession of Raj Kumari Devi that she has killed Suraj Sah. Therefore, her evidence in the Court about the act of killing Suraj Sah by Raj Kumari Devi as confessed by her has remained unchallenged. We further find that though a suggestion was given to the informant during her cross-examination to the effect that Raj Kumari Devi did not threaten her that she would kill her son, however, no suggestion was put to her on the extra-judicial confession by Raj Kumari Devi. The informant has stated in her fardbeyan and also in her examination-in-chief that Raj Kumari Devi confessed before her that she has killed Suraj Sah and thrown his dead-body in the well. 19. There is no universal rule that conviction of an accused cannot be recorded on the basis of extra-judicial confession, confession of an accused is admissible in evidence. In Pakkirisamy vs. State of Tamil Nadu, (1997) 8 SCC 158 the Supreme Court has held that it is a rule of caution that the courts would generally look for an independent reliable corroboration before placing any reliance upon extra-judicial confession. In Aloke Nath Dutta and Others vs. State of West Bengal, (2007) 12 SCC 230 the Supreme Court has observed that before placing reliance on confession of an accused the court has to satisfy itself in regard to: (i) voluntariness of confession, (ii) truthfulness of confession and (iii) corroboration. In paragraph no. 89 of the reported judgment, the Supreme Court has observed that the main features of a confession are required to be verified and, if it is not done, no conviction can be passed only on the sole basis of confession of an accused. 20. It is a fact proved by the prosecution that the dead body of Suraj Sah was recovered from the well of Arjun Mandal. 20. It is a fact proved by the prosecution that the dead body of Suraj Sah was recovered from the well of Arjun Mandal. No external injury has been found by the doctor on the person of Suraj Sah, but blood-tinged water was coming from his nostril and his stomach was full of water and several other symptoms showing death by drowning were seen by the doctor. A search for Suraj Sah started in the night of 19.04.2000 and finally in the morning of 20.4.2000 when the informant came back home, the appellant, namely, Raj Kumari Devi has given information about murder of Suraj Sah. PW-6 has spoken about the extra-judicial confession of Raj Kumari Devi and evidence of the informant on this issue spells a ring of truth. She is consistent in her evidence on the extra-judicial confession by Raj Kumari Devi before her. The extra-judicial confession of Raj Kumari Devi was voluntary, as would appear from the testimony of PW-9 and its truthfulness is established from the fact that on her disclosure the dead-body was recovered from the well and death of Suraj Sah by drowning provides sufficient corroboration to the extra-judicial confession of Raj Kumari Devi that she has thrown Suraj Sah in the well. 21. Motive generally is not a deciding factor in a criminal trial, however, in a serious crime like murder particularly when the case is solely based on the circumstantial evidence motive becomes relevant. In Surinder Pal Jain vs. Delhi Administration, 1993 Supp (3) SCC 681, the Supreme Court has observed that in a case based on circumstantial evidence motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning and absence of motive puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof. The prosecution has proved through PW-6, PW-7 and PW-9 that there was quarrel between the informant and Raj Kumari Devi and Raj Kumari Devi had threatened the informant that she would kill her son. It is the prosecution’s case that Raj Kumari Devi was nurturing a doubt that the informant by practicing witchcraft has killed her 17 days old son. 22. It is the prosecution’s case that Raj Kumari Devi was nurturing a doubt that the informant by practicing witchcraft has killed her 17 days old son. 22. From the evidences led by the prosecution, we find that the prosecution has proved against the appellant, namely, Raj Kumari Devi that there was strong motive on her part to commit murder of Suraj Sah. The circumstances proved by the prosecution against Raj Kumari Devi are so complete that any hypothesis consistent with her innocence is ruled out, but complicity of Nakul Sah in the crime appears to be doubtful. 23. The defence set up by Nakul Sah is that due to his acquaintance with Raj Kumari Devi, he has been roped in along with her in the crime. 24. Section 34 of the Indian Penal Code postulates vicarious liability of all for the act of one if the criminal act has been done in furtherance of the common intention of all. In Ashok Kumar vs. State of Punjab, (1977) 1 SCC 746 , it has been held that the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. 25. It is the prosecution’s case that Nakul Sah had illicit relationship with Raj Kumari Devi whose husband used to go out-station frequently for months together and that was the reason the family members of Raj Kumari Devi were not happy with Nakul Sah. Some of the prosecution witnesses have said that he was present in the house of Raj Kumari Devi and PW-4 has stated that he was going behind Raj Kumari Devi who was taking Suraj Sah along with her, however, in his cross-examination PW-4 has said that he has not seen Nakul Sah in the house of Hare Ram, the husband of Raj Kumari Devi. PW-6 in her cross-examination has said that she has not seen Nakul Sah engaged in any misbehavior with Raj Kumari Devi. PW-6 in her cross-examination has said that she has not seen Nakul Sah engaged in any misbehavior with Raj Kumari Devi. We find that the prosecution has not brought on record any other incriminating circumstance which would establish complicity of Nakul Sah in the murder of Suraj Sah. The prosecution has also failed to prove that Suraj Sah has been killed in furtherance of common intention shared by both the appellants. From the prosecution’s evidence what appears is that due to his relationship with Raj Kumari Devi the prosecution witnesses have raised an accusing finger to Nakul Sah, but then, suspicion howsoever strong cannot take the place of proof. Merely because he was seen in the house of the co-accused in fateful evening and also seen going behind Raj Kumari Devi who was seen by PW-4 on the road holding hand of Suraj Sah, an inference on his complicity in the murder of Suraj Sah cannot be drawn. 26. In the above facts, we are inclined to hold that the prosecution has failed to prove the charge under section 302/34 IPC against Nakul Sah @ Nako Sah who is the appellant in Cr. Appeal (DB) No. 412 of 2001 and, accordingly, the judgment of conviction and the order of sentence, both dated 30.08.2001, passed by the learned 1st Additional Sessions Judge, Godda against him in Sessions Case No. 76 of 2000 and 15 of 2000 are set aside. 27. In the result, Cr. Appeal (DB) No. 412 of 2001 filed on behalf of Nakul Sah @ Nako Sah is allowed, but Cr. Appeal (D.B.) No. 439 of 2001 filed on behalf of the appellant, namely, Raj Kumari Devi is dismissed. 28. Both the appellants are on bail. 29. The bail-bond furnished by the appellant, namely, Raj Kumari Devi in Cr. Appeal (DB) No. 439 of 2001 is cancelled. She shall surrender before the court-below to serve the remaining sentence. 30. The appellant, namely, Nakul Sah @ Nako Sah is discharged of liability of the bail-bonds furnished by him. 31. Let lower court records be transmitted to the court concerned, forthwith. 32. Let a copy of the judgment be communicated to the trial court through FAX. 33. We appreciate the able assistance rendered by Sourabh Shekhar, the learned Amicus. 34. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills.