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2019 DIGILAW 204 (JHR)

Anjay Das v. State Of Jharkhand

2019-01-21

APARESH KUMAR SINGH, KAILASH PRASAD DEO

body2019
JUDGMENT 1. Heard learned Amicus Curiae Mrs. Manjula Upadhyay appearing on behalf of the appellant and Learned counsel for the State Mr. Suraj Verma, Additional Public Prosecutor. 2. Both these appellants are aggrieved by their conviction for the offence punishable under Section 302/34 of the Indian Penal Code and sentence of rigourous imprisonment for life passed by learned 5 th Additional Sessions Judge (FTC), Dumka in Sessions Case No. 147 of 2009 vide judgment of conviction dated 15.10.2009 and order of sentence dated 16.10.2009. 3. Fardbeyan of the Choukidar (1/4) Ashok Rajak is the basis for registration of the formal F.I.R being Dumka (T) P.S. Case No. 329 of 2008 under Section 302/34 of the I.P.C against these two accused/appellants. Informant alleged that on 31.12.2008 at 9.00 AM while he was on the way from his house through Shivpahar Harijan Tola, he noticed that large number of people had assembled near the west of the Harijan Tola High School and were taking about something. On inquiry, he came to know that Ramesh Das @ Chitputiya (deceased) S/o Late Jagdev Das of village Shivpahar Harijan Tola had gone outside to earn 6 month back and his wife Draupdi Devi @ Sumitra Devi (Appellant no.2) was staying along with his brother Anjay Das and Sanjay Das in the house. Draupdi Devi @ Sumitra Devi did not allow Sanjay Das to stay with them. She had, in course of their stay, developed illicit relationship with her younger devar Anjay Das (appellant no.1) and became pregnant. When the deceased Ramesh Das returned to his place in the preceding Dusherra, he inquired about her pregnancy and this led to his frequent quarrel with his wife and younger brother Anjay Das. Thereafter Draupdi Devi continued leading illicit relationship with her younger devar Anjay Das, which was the reason for frequent quarrel and also marpeet between the deceased and his wife and younger brother. It is further alleged that in the night of 30/31.12.2008 Anjay Das and Draupdi Devi @ Sumitra Devi together caused the death of Ramesh Das by strangulation with a rope. Informant, on the basis of this information reached the house of the deceased and saw his dead body lying with black marks of rope around the neck due to strangulation and that blood and semen had oozed out from his private organ. Informant, on the basis of this information reached the house of the deceased and saw his dead body lying with black marks of rope around the neck due to strangulation and that blood and semen had oozed out from his private organ. Draupdi Devi gave a coconut rope and told that this was the rope used for his strangulation. This rope was about 3 feet in length 4. Upon institution of the formal F.I.R, investigation was carried on by P.W.10 Parsuram Prasad and chargesheet was submitted under Section 302/34 of the I.P.C against these two appellants. After cognizance was taken, the case was committed to the Court of Sessions. Charges were framed under the aforesaid offence and were read out to the two accused who pleaded not guilty. Thus, the case was put up for trial. 5. During course of trial, prosecution had examined 10 witnesses as under: 1.P.W.1 Sukhdev Das 2.P.W.2 Dr. Ramesh Prasad Verma 3.P.W.3 Jogendar Das 4.P.W.4 Maini Dasi 5.P.W.5 Subasi Devi 6.P.W.6 Rampatiya Dasi 7.P.W.7 Choti Devi 8.P.W.8 Shankar Das 9.P.W.9 Ashok Rajak, Informant of the case 10.P.W.10 Parsuram Prasad, Investigating Officer of the case,. Documentary evidences were also adduced on behalf of the prosecution up to Ext. 5 as under: 1.Ext.1-Signature of Sukhdev Das on the carbon copy of inquest report. 2.Ext.1/1-carbon copy of inquest report. 3.Ext.2-signature of Sukhdev Das on seizure list. 4.Ext.2/1-seizure list 5.Ext.3- post mortem report 4. Ext.4- written application 5. Ext.5- F.I.R 6. Upon conclusion of the prosecution evidence, material evidences were put to the accused persons during their examination under Section 313 of the Cr.P.C , which they denied and pleaded innocence. 7. Learned Trial Court upon analysis of the evidences on record came to the conclusions that the following circumstances were proved against the accused persons: i. Ramesh Das, Anjay Das and Draupdi Devi were living in the house of Ramesh Das. ii. The dead body of Ramesh Das was found in the morning of 31.12.2008 with unexplained ante mortem injuries. iii. Appellant Draupdi Devi herself produced rope used for strangulating her husband to the police. iv. She admitted that her husband went to Assam. v. She could not explain how she conceived in July 2008. vi. She delivered the female child while in custody on 02.05.2009 and presently the girl child is with her. vii. Accused Anjay Das had absconded though his brother had been murdered. iv. She admitted that her husband went to Assam. v. She could not explain how she conceived in July 2008. vi. She delivered the female child while in custody on 02.05.2009 and presently the girl child is with her. vii. Accused Anjay Das had absconded though his brother had been murdered. He explained that he was not in the home, the fact not supported by other witnesses. viii. P.W.2 Doctor Ramesh Prasad Verma found no mark of knot on the neck of the deceased Ramesh Das, so the theory of death due to hanging was impossible. ix. Accused persons did not offer any explanation regarding the death of Ramesh Das and their answers were evasive, though there were no eye witness to the occurrence. These circumstances were taken to form a complete chain to hold the accused guilty for the offence punishable under Section 302/34 of the I.P.C. 8. Learned Amicus Curiae during course of submission has taken this Court thread bare through the evidences of the prosecution in order to submit that there are gaping holes in the entire prosecution story. Following grounds have been urged inter alia in support of the challenge to this conviction against the appellants: i. The prosecution story as alleged through the mouth of the Informant is based on the hypothesis that Draupdi Devi (appellant no.2) was in illicit relationship with her younger devar Anjay Das (appellant no.1). ii. There are no eye witness to the occurrence. iii. The case is entirely based on circumstantial evidence. iv. The chain of circumstances have not been proved in unbroken manner leading to the only hypothesis of guilt of the accused/appellants and no other conclusion. v. Prosecution Witnesses No. 1, 4, 5, 6 and 7 are admittedly hearsay witnesses. vi. Prosecution has failed to adduce any other member of the family of the appellants and the deceased like his second brother Sanjay Das or his wife to substantiate the allegation of illicit relationship between two appellants or that there were frequent fight between the deceased and the two appellants which could be a motive for the crime. vii. P.W.9, Informant has narrated the prosecution story on the basis of what he heard from villagers whom he could not name. His testimony during trial contradicts his own statement recorded in the fardbeyan. viii. vii. P.W.9, Informant has narrated the prosecution story on the basis of what he heard from villagers whom he could not name. His testimony during trial contradicts his own statement recorded in the fardbeyan. viii. The place of occurrence has been rendered doubtful in the light of the testimony of the Investigating Officer, P.W.10 and the inquest report, Ext. 1/1 and also statement of P.W.1. ix. The medical evidence on record adduced through P.W.2 shows marks of struggle on the part of the deceased during strangulation, which is not corroborated from the description of the place of occurrence by the Investigating Officer, Informant or any other witness. x. If the place of occurrence is treated to be inside the house of the deceased, the temporary shed covered by plastic sheet surrounded by bamboo, with straw (powal) on the ground covered by bed sheet, there is no evidence of such resistance at that place. xi. Prosecution has completely failed to show when the deceased left for Assam for work; when he returned to his house and since how long he was staying with the appellants before the incidence. xii. The statement made in the fardbeyan of the informant indicates that the deceased had returned in the preceding Dusherra festival in 2008, which is generally in the month of October, while the incidence occurred in the night of 30/31.12.2008. xiii. If counted from the date of return of the deceased as stated by the Informant in the fardbeyan, the birth of the child on 02.05.2009 cannot be said to be outside the wedlock on account of illicit relationship between the appellant no.1 and appellant no.2. xiv. Prosecution has failed to conduct the paternity test of the child to prove that the deceased was not the biological father of the child rather appellant no.1 was the biological father. If such is the quality of evidence, the prosecution has failed to satisfy the test of circumstantial evidence. There are grave doubts about the hypothesis built around the death of Ramesh Das for which the appellants have been unnecessarily charged and convicted on the basis of practically no evidence. Apart from the above, there are no evidence on record to show complicity of Appellant no.1 Anjay Das in the entire manner of commission of crime. There are grave doubts about the hypothesis built around the death of Ramesh Das for which the appellants have been unnecessarily charged and convicted on the basis of practically no evidence. Apart from the above, there are no evidence on record to show complicity of Appellant no.1 Anjay Das in the entire manner of commission of crime. As such the entire prosecution story suffers from grave contradictions and appellants have wrongly been convicted by the learned Trial Court for a serious offence of murder in common intention with each other. Appellant no.2 has remained in custody since 31.12.2008 i.e, the date of occurrence while appellant no.1 was arrested and taken into custody on 15.06.2009. Therefore, it is prayed that impugned judgment of conviction and order of sentence passed against the appellants deserves to be quashed. 9. Learned Additional Public Prosecutor has also placed before us the entire evidence on record in support of the findings rendered by the learned Trial Court. He submits that statements of P.W.7 and other prosecution witnesses, though hearsay, show that the appellant no.1, younger devar was staying with appellant no.2, his bhabhi and the deceased in the house. P.W.9, Informant has supported the prosecution story as made out in his fardbeyan and stated during trial that there were frequent fights between the deceased and his brother and she used to live with his younger brother Anjay Das in an objectionable manner. P.W.9 in his testimony has also stated that the deceased had gone to Assam for work and on his return came to know that his wife was living with his younger brother in an objectionable relationship. This witness had no other motive to implicate the accused persons as he was a choukidar of the village. Other prosecution witness like P.W.6 Rampatiya Devi has also stated that the deceased and the two appellants used to stay in the same house and that the deceased died in his house. Prosecution witness like P.W.7 have also stated that the dead body was found in the house of the deceased lying on the floor. The accused persons, specifically appellant no.2 could not explain the circumstances in which the deceased was killed though his dead body was found in his own house and appellant no.2 is his wife. It has also come in the impugned judgment that appellant no. The accused persons, specifically appellant no.2 could not explain the circumstances in which the deceased was killed though his dead body was found in his own house and appellant no.2 is his wife. It has also come in the impugned judgment that appellant no. 2 gave birth to child, a baby girl in 02.05.2009 while in custody. This fact together with the attending circumstances clearly showed that appellant no.2 had illicit relationship with her younger devar Anjay Das outside her marriage during the period her husband had gone for work to Assam six months back. 10. These circumstances taken in totality lead to the only conclusion that these two appellants had motive to eliminate the deceased from their life as he was constantly quarreling with his wife, appellant no.2 on suspicion of their illicit relationship. The defence has not been able to make a dent into the prosecution story nor been able to adduce any evidence which could show any other motive of crime by any other person. Learned Trial Court has after proper consideration of the evidences on record found the chain of circumstances to be complete and rightly held that prosecution has been able to prove the charges beyond shadow of all reasonable doubt against the appellants. As such, the impugned judgment of conviction does not warrant any interference in appeal. 11. We have considered the submissions of learned Amicus Curiae and learned Additional Public Prosecutor and the entire material evidence on record. We have also gone through the impugned judgment. Upon scanning the evidence in its entirety, we are in a position to make the following observations: The case is built upon circumstantial evidence by the prosecution as there are no eyewitness to the crime. The prosecution had developed its case on hypothesis of illicit relationship between the two appellants (Bhabhi and Devar) in the absence of husband of the appellant no. 2 (deceased) who had gone to Assam for six months in connection with a work. We find that the prosecution has not been able to show the date or the month in which the deceased had travelled outside to Assam for work; the date or month on which he returned and the period he spent after his return upto the date of occurrence with the appellant no. 2 as also appellant no. 1. We find that the prosecution has not been able to show the date or the month in which the deceased had travelled outside to Assam for work; the date or month on which he returned and the period he spent after his return upto the date of occurrence with the appellant no. 2 as also appellant no. 1. P.W.9 in his written statement (Ext.-4) which is the basis for institution of the F.I.R. (Ext.5) proved by the P.W.10, stated that the deceased had returned from his place of work during the preceding Dussehra in 2008 which can be taken to be in October 2008 as Dussehra festival generally falls during this month. The incidence is of 30/31 st December 2008. Evidently, the deceased had stayed with the appellant no. 2 over a period of two months. The appellant no. 2 gave birth to a baby on 02.05.2009 while in custody. There are no other material evidence to the contrary to show that the deceased had no access or was completely out of conjugal relationship with the appellant no. 2 before the date of occurrence i.e. 30/31 st December 2008 for six months or more. There is presumption attached to the legitimacy of the child born out of a marriage under section 112 of the Evidence Act, 1872. In the circumstances discussed above, the prosecution has failed to rebut this presumption by any cogent proof. In this light, the only hypothesis and the motive created by the prosecution to support its case falls to the ground. 12. Out of 10 prosecution witnesses, as named above, except the medical expert (P.W.2) who proved the post-mortem report and the Investigating Officer (P.W.10), all other prosecution witnesses including the informant Choukidar Ashok Rajak (P.W.9) were hearsay and two of them (P.W. 3 and P.W.8), were as a matter of fact, declared hostile by the prosecution. They are not material witnesses, so far as motive to the crime is concerned or the manner in which the occurrence took place or any of the issues which are relevant in terms of section 6 of the Evidence Act . Reliance is placed on the judgment of the Honble Apex Court in the case of Dhal Singh Dewangan v. State of Chhattisgarh reported in (2016) 16 SCC 701 , para 24 thereof is quoted as under: 24. Reliance is placed on the judgment of the Honble Apex Court in the case of Dhal Singh Dewangan v. State of Chhattisgarh reported in (2016) 16 SCC 701 , para 24 thereof is quoted as under: 24. The general rule of evidence is that hearsay evidence is not admissible. However, Section 6 of the Evidence Act embodies a principle, usually known as the rule of res gestae in English law, as an exception to hearsay rule. The rationale behind this section is the spontaneity and immediacy of the statement in question which rules out any time for concoction. For a statement to be admissible under Section 6, it must be contemporaneous with the acts which constitute the offence or at least immediately thereafter. The key expressions in the section are " so connected as to form part of the same transaction". The statements must be almost contemporaneous as ruled in Krishan Kumar Malik and there must be no interval between the criminal act and the recording or making of the statement in question as found in Gentela Vijayavardhan Rao case. In the latter case, it was accepted that the words sought to be proved by hearsay, if not absolutely contemporary with the action or event, at least should be so clearly associated with it that they are part of such action or event. This requirement is apparent from the first illustration below Section 6 which states "whatever was said or done at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact". The case hinges upon the circumstantial evidence. Facts which were occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which it happened, or which afforded an opportunity for their occurrence or transaction as per section 7 of the Evidence Act, were not proved by the prosecution. The prosecution had a heavy responsibility to prove the facts which were relevant to show or constitute a motive or preparation for the fact in issue or the relevant fact of causing the death of the husband of the appellant no. 2 as per section 8 of the Evidence Act. The prosecution had a heavy responsibility to prove the facts which were relevant to show or constitute a motive or preparation for the fact in issue or the relevant fact of causing the death of the husband of the appellant no. 2 as per section 8 of the Evidence Act. In the absence of any direct evidence, the prosecution had the responsibility to complete the link to form a chain of circumstances which lead to only hypothesis of the guilt and no other. Reliance is placed upon the case of Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253 , para 34, 35 and 36 where the principles governing the rule of circumstantial evidence have been reiterated as under : "34. Regard being had to the aforesaid circumstances, it is to be seen whether on the basis of the said circumstances, it can be held whether such circumstances lead towards the guilt of the accused regard being had to the principle that they lead to a singular conclusion that the appellant is guilty of the offence and it does not allow any other probability which is likely to allow the presumption of innocence of the accused. In this context, we may refer with profit to the decision rendered more than six decades back in Hanumant Govind Nargundkar v. State of M.P., wherein it has been held as follows: (AIR pp. 345-46, para 10) "10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 35. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 35. In Sharad Birdhichand Sarda v. State of Maharashtra, the five golden principles which have been stated to constitute the "panchsheel" of the proof of the case based on circumstantial evidence are: (i) that the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established; (ii) that 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; (iii) that the circumstances should be of a conclusive nature and tendency; (iv) that they should exclude every possible hypothesis except the one to be proved; and (v) that 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. 36. In C. Chenga Reddy v. State of A.P. it has been held that: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. [That apart], the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." 13. We find from the evidence on record i.e., the Inquest Report (Ext. 1/1) that the dead body was found at Shiv Pahar Harijan Tola on a plain vacant land near the house of the deceased. During his testimony, the Investigating Officer (P.W.10) attributes the presence of the dead body inside the house from the mouth of other bystanders, but he himself found the dead body of the deceased at about 2 yard distance on the west on the plain vacant land from the house of the deceased. During his testimony, the Investigating Officer (P.W.10) attributes the presence of the dead body inside the house from the mouth of other bystanders, but he himself found the dead body of the deceased at about 2 yard distance on the west on the plain vacant land from the house of the deceased. There is no description of any mark of violence inside the house of the deceased, though, as per the medical evidence, there were certain injuries in the nature of abrasion on left elbow 2"x 1" and right hand dorsal aspect. The dead body does not appear to be inside the house of the deceased, rather at a small a distance outside it. The evidence of P.W.1 also on the point of place of occurrence also creates a doubt on the prosecution story as to where the deceased was found lying dead. There is no sign of struggle inside the house of the deceased neither specifically noticed by the Investigating Officer or P.W.9 (Informant). We may also refer to the answer given by the appellant no. 2 in her statement under section 313 of the Cr. PC to the question no. 5. She clearly stated that the deceased had gone out to ply rickshaw in the said night and that in the morning, the dead body was found near a Kathal tree (Jackfruit tree) with marks of strangulation by a rope around his neck. Therefore burden could not becast upon the appellant no. 2 under section 106 of the Evidence Act in such circumstances to explain the cause of his death. 14. We also find from the description of the rope in the inquest report that it did not bear any evidence of human skin, blood, subcutaneous tissue etc., though it is stated to be the same rope by which the deceased was strangulated. This rope was not discovered on any disclosure statement made by the accused/appellant no.2 in terms of Section 27 of the Evidence Act , as such the thumb impression of the appellant no.2 on the seizure list would not be used as legal evidence to be used against her. Doctor (P.W.2) had found cause of death as a result of following ante mortem injuries on the body of the deceased: i. One inch black ligature mark present in neck all around. There was no knot mark. On dissection there was fracture of two tracheal rings. Doctor (P.W.2) had found cause of death as a result of following ante mortem injuries on the body of the deceased: i. One inch black ligature mark present in neck all around. There was no knot mark. On dissection there was fracture of two tracheal rings. Skin underneath has bruises and subcutaneous haemorrhage. ii. There were marks of struggle like abrasion on left elbow 2 inch X 1 inch and right hand dorsal aspect. iii. Nail beds were sinosed. Discharge of semen and stool. In his opinion, death was caused due to asphyxia due to strangulation. Time elapsed since death was within 24 hours. 15. Having carefully scrutinized the entire evidence on record on re-appreciation, we find that the prosecution has miserably failed to prove the links forming a complete chain of circumstances to establish the involvement of these two appellants in the commission of the crime. As noted above, the very motive of crime being the illicit relationship between the appellants has not been established. If the substratum of the case fails, the entire prosecution story crumbles. In the entire sequence of facts, borne from the evidence on record, we find complete silence on the circumstances showing the role of the appellant no. 1 in the commission of murder of the deceased. Conviction of both these appellants have been recorded for the offence punishable under section 302 read with section 34 of the I.P.C. No such evidence is on record to show formation of common intention on the part of these two appellants to cause death of the deceased in the light of the circumstances taken note above. 16. Under the aforesaid facts and circumstances, we are therefore unable to uphold the conviction of these two appellants rendered by the learned Trial Court. Accordingly, the impugned judgment of conviction dated 15.10.2009 and order of sentence dated 16.10.2009 passed by learned 5 th Additional Sessions Judge,(FTC), Dumka in Sessions Case No. 147 of 2009 is hereby set aside. Both the appellants are in jail. They are directed to be released forthwith from custody, if not wanted in connection with any other case. 17. In the result, the appeal is allowed. Let the Lower Court Records be returned to the Court below forthwith. 18. Before parting, we record our appreciation for the valuable assistance accorded by the learned Amicus Curiae in this case. They are directed to be released forthwith from custody, if not wanted in connection with any other case. 17. In the result, the appeal is allowed. Let the Lower Court Records be returned to the Court below forthwith. 18. Before parting, we record our appreciation for the valuable assistance accorded by the learned Amicus Curiae in this case. The Secretary, High Court Legal Services Committee would ensure that the legal remuneration of the learned Amicus Curiae are duly paid within a period of 4 weeks from the date of receipt of an application along with a certified copy of this judgment.