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2019 DIGILAW 501 (JHR)

Kaptan Purty v. State Of Jharkhand

2019-02-19

APARESH KUMAR SINGH, KAILASH PRASAD DEO

body2019
JUDGMENT 1. Heard learned Amicus Curiae Mr. Rishi Pallava and the learned Additional Public Prosecutor Mr. Gauri Shankar Prasad 2. The sole appellant stands convicted by the impugned judgment dated 20.11.2009 for the offence under section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 5,000/-, in default whereof, to undergo simple imprisonment for six months by the impugned order of sentence dated 23.11.2009 passed in Sessions Trial No. 1/2008 by the court of learned 1 st Additional Sessions Judge, West Singhbhum at Chaibasa. 3. Informant is the mother of the accused / appellant and mother-in-law of the deceased. Majhgaon (Kumardungi) P.S. Case No. 46/2007 was registered on 25.09.2007 at 20.00 hrs. against the sole accused / appellant on the basis of the fardbeyan of the informant, PW-2 Manjhari Kui, wife of late Dudang Purti of village Patar Hatu, Tola-Munda Sai, P.S. Kumarduugi, District-West Singhbum, Chaibasa, recorded by the Sub Inspector Baburam Bhagat, Officer-in-Charge at 15.30 Hrs. on 25.09.2007 at her own house at the village Patar Hatu. It inter-alia alleged as follows: The informant has spoken in ''Ho'' language which was translated by Munda and Manki in Hindi. She states that her husband Dudang Purti died five years back. She has one son Kaptan Purty (accused) who has four small / big children. Eldest is the daughter aged about five years. They have little bit of cultivation. They manage their existence by cultivation and manual labour. Since last three days, there were continuous rainfall which had disrupted their household. Yesterday on 24.09.2007 also it was raining. She along with her daughter-in-law and grandchildren after having food, went to sleep. During her sleep, she was awaken by her son who wanted to beat her and caught hold of her, however she went out of the house. She went to the house of someone else. Today on 25.09.2007 in the morning, when she returned to her house, she saw her daughter-in-law lying dead in the courtyard drenched in blood and her ear and head were badly crushed. She informed the Munda of the village. Then Munda along with others came and saw the incidence. She further states that on 24.09.2007 there was altercation between the husband and wife relating to drinking of country made liquor (hadia). She informed the Munda of the village. Then Munda along with others came and saw the incidence. She further states that on 24.09.2007 there was altercation between the husband and wife relating to drinking of country made liquor (hadia). Perhaps due to this reason, her son had brutally assaulted her daughter-in-law Mandui Kui (deceased) with stone and caused her death. In the recent past, her behaviour was not good and out of this anger, he committed the murder of his wife. She alleged that her son Kaptan Purty (accused) had killed her daughter-in-law Mandui Kui due to an altercation relating to drinking of country made liquor (Hadia), in a cruel way. She further states that this is her statement which has been read over by the Manki and Munda and after understanding it, she has inscribed her left thumb impression thereupon. Fardbeyan witnesses are Sanatan Sinku (PW-1) and Gumida Sinku (PW-3), Munda of the village. 4. Upon investigation, case was found to be true. Charge sheet bearing no. 56/2007 dated 30.11.2007 was submitted under section 302 of the Indian Penal Code against the sole accused. Cognizance was taken on 03.12.2007 and the case was committed to the court of sessions on 18.12.2007. Charges were framed on 26.03.2008 and again on 08.12.2008 for the offence under section 302 of the Indian Penal Code and read over and explained to the accused, which he understood and pleaded not guilty and claimed to be tried. 5. During course of trial, prosecution examined ten witnesses namely as under: PW-1 Sanatan Sinku is Manki of the village. He is a hearsay witness. He has proved his signature on the seizure list which has been marked as Ext.1; his signature on the fardbeyan which has been marked as Ext.1/1 and his signature on the carbon copy of the inquest report, which has been marked as Ext.-1/2. PW-2 Manjhari Kui is the informant. She is mother of the accused and mother-in-law of the deceased. She has stated in her deposition that there was an altercation between the husband and wife. The name of her son is Kaptan Purty. She further states that in the house, husband, wife and children were there. She was in the paddy field protecting the paddy. She further states that nearby people informed that there was a quarrel between the husband and wife, then her son assaulted her daughter-in-law by a stone. The name of her son is Kaptan Purty. She further states that in the house, husband, wife and children were there. She was in the paddy field protecting the paddy. She further states that nearby people informed that there was a quarrel between the husband and wife, then her son assaulted her daughter-in-law by a stone. She has further stated that her fardbeyan was made in ''Ho'' language which was translated by the Munda of the village in Hindi and explained to her, where-after she inscribed her thumb impression on it. In her cross-examination, she states that she had not seen the occurrence as she was not there. She had returned from the field in the evening. She does not remember when the Officer-in-Charge had come to the village. She further states that when her statement was recorded by the Officer-in-Charge, there was no other person along with her. PW-3 Gumida Sinku is the Munda of the village. He has been declared hostile on the request of the prosecution. However, he has proved his signature on the fardbeyan, which has been marked as Ext.-1/3 and his signature on the seizure list, which has been marked as Ext.1/4. He has also proved his signature on the inquest report, which has been marked as Ext.1/5. A perusal of his statement in totality shows that he had received information from the younger daughter of the accused of the death of her mother who could not disclose the name of the person who had made assault. When he reached the house of the deceased, he saw her dead. When he reached, there was no one else present. Accused was also not present. Then he had informed Manki, who in turn informed the police station. PW-4 Rupa Purty is a hearsay witness. He also says that he learnt about the occurrence from the children of the accused. He does not know how the wife of Kaptan Purty (accused) died. This witness has also been declared hostile on the request of the prosecution. PW-5 Sulbu Purty is also a hearsay witness. He claims to have heard about the incidence from the daughter of the accused Niti Munda. He says that he went along with the Munda to the house of the accused Kaptan Purty and saw the dead body of the victim. He has also been declared hostile on the request of the prosecution. He claims to have heard about the incidence from the daughter of the accused Niti Munda. He says that he went along with the Munda to the house of the accused Kaptan Purty and saw the dead body of the victim. He has also been declared hostile on the request of the prosecution. In his cross-examination, he had denied having stated before the Officer-in-Charge that he had come to know that there was quarrel between the husband and wife on 24.09.2007 and that at 11.00 pm, the accused got up and tried to kill his mother who ran away and when she came back, she saw her daughter-in-law dead lying drenched in blood. PW-6 Badai Samad is also a hearsay witness. He states that he came to know about the incidence from the village Munda. He also claims that he heard about quarrel between the husband and wife relating to consumption of country made liquor. Villagers had caught hold of the accused. In his cross-examination, he denied having seen the occurrence. He says that his statements are based upon the hearsay. PW-7 Budhram Kunkal is another hearsay witness who claims to have heard about the incidence from the ladies who used to work in the school. In his cross-examination, he categorically states that he had not seen the occurrence. PW-8 Lakshman Hembrom is Dalpati of the village. He states that when he was returning from his work, he saw that Kaptan Purty was being caught hold by the villagers. He had been called by the Munda and then he had gone there where he had seen the dead body of the victim. In his cross-examination, he denies having seen the occurrence and that his statements were based on hearsay. PW-9 Babu Ram Bhagat is the Investigating Officer of the case. He had been called by the Munda and then he had gone there where he had seen the dead body of the victim. In his cross-examination, he denies having seen the occurrence and that his statements were based on hearsay. PW-9 Babu Ram Bhagat is the Investigating Officer of the case. He has proved his own handwriting and signature on the fardbeyan on which there was a thumb impression of the informant and that of the fardbeyan witnesses, which has been marked as Ext.2; he has proved handwriting and signature of Officerin-Charge Ram Prasad Paswan on the second page of the fardbeyan, which has been marked as Ext.2/2; he has proved endorsement on the formal FIR in his own handwriting and signature, which has been marked as Ext.2/1; he has also proved the inquest report prepared by him, which has been marked as Ext.3; he has also proved the seizure list of blood stained stone, lathi and soil, which has been marked as Ext.4; he has also proved the formal FIR having the signature of the Officer-in-Charge of Majhgaon Police Station Ram Prasad, which has been marked as Ext.-5. In his deposition, he has further stated that he had seized the articles, etc. and seized articles were sent to forensic science laboratory. However, report had not been received. He also states that he had recorded the statement of witnesses PW-1 Sanatan Sinku, PW-3 Gumida Sinku, PW-4 Rupa Purty, PW-6 Badai Samad, PW-7 Budhram Kunkal and PW-8 Lakshman Hembrom. He has further stated during his cross-examination that the witness Durbu Purty had stated before him on 24.09.2007 that there was a quarrel between the husband and wife relating to drinking of country made liquor and that at 11.00 pm, the accused got up and tried to wake up his mother and assault her, however, she ran away. When she returned in the morning, she saw her daughter-in-law lying dead drenched in blood. Thereafter, incidence was reported to the villagers and Munda. Then people assembled there and the accused Kaptan Purty was caught hold from his house. He further states in his cross-examination at para-21 that at the place of occurrence, accused was handed over to him by the villagers and they told that he had killed his wife. PW-10 is Dr. Bal Krishna Sahni who conducted autopsy on the dead body of the victim on 26.09.2007 at Sadar Hospital, Chaibasa. He further states in his cross-examination at para-21 that at the place of occurrence, accused was handed over to him by the villagers and they told that he had killed his wife. PW-10 is Dr. Bal Krishna Sahni who conducted autopsy on the dead body of the victim on 26.09.2007 at Sadar Hospital, Chaibasa. Following ante mortem injuries were found on external as well as internal examination. External Examination: Rigor Mortis present on legs and hand. Injury No. 1: A lacerated wound at left posterior upon scalp of size 6cm x 0.5cm x upto bone deep with blood clot. Injury No. 2: A lacerated wound at right cheek of size 2cm x 0.5cm x upto muscle deep with blood clot Injury No. 3: A lacerated wound at left upper pinna of ear of size 0.5cm x 0.3cm x upto muscle deep and at right lower pinna of the ear of size 0.6cm x 0.3cm x upto muscle deep with blood clot. Internal Examination:- Head- fracture of left posterior upper scalp with laceration of brain tissues with blood clot at the side of injury no. 1. Heart- Both chambers empty. Lung & Liver: Pale. Stomach contains some semi-digested food. Uterus - small Bladder - contains some urine. Opinion: Death was due to hemorrhage and shock due to above mentioned head injury no. 1 caused by hard and blunt substance. Time since death: Within 48 hours from the time of examination. The post mortem report was prepared by him and bore his signature, which was proved and marked as Ext-6. 6. After the prosecution evidence was closed, material evidence was put to the accused during his examination under section 313 of the Cr. PC. He denied the same and in answer to the question no. 4, he stated that he was not there in the house. He had gone to his in-law''s house and when he returned, Gramin Munda caught hold of him. He denied having committed the offence and stated that he was innocent. No defence witness or documentary evidence were adduced on behalf of the accused. 7. Upon consideration of the material evidence on record and upon hearing the learned counsel for the parties, learned Trial Court convicted the sole accused / appellant herein for the charges, holding that the ingredients of the offence of murder stand fully proved by the prosecution beyond shadow of all reasonable doubt. 8. 7. Upon consideration of the material evidence on record and upon hearing the learned counsel for the parties, learned Trial Court convicted the sole accused / appellant herein for the charges, holding that the ingredients of the offence of murder stand fully proved by the prosecution beyond shadow of all reasonable doubt. 8. During course of hearing of this appeal, learned Amicus Curiae has questioned the findings of the learned court inter-alia on the following grounds: He submits that there are no eyewitness to the occurrence; case of the prosecution hinges upon the evidence of the informant (PW-2) who is the mother of the accused and mother-in-law of the deceased. She is a hearsay witness. She has improved her statement made in the fardbeyan compared to what she has stated at the time of trial. PW-3 Gumida Sinku, Munda of the village, PW-4 Rupa Purty and PW-5 Sulbu Purty have been declared hostile because they did not support the prosecution case. PW-1 Sanatan Sinku, PW-5 Sulbu Purty, PW-6 Badai Samad, PW-7 Kundia Kunkal and PW-8 Lakshman Hembrom are all hearsay witnesses. They had reached the place of occurrence in the morning upon hearing from the children of the deceased or Munda of the village. None of them have seen the occurrence and none of them have proved that the accused was in his own house in the night of the occurrence. The accused in his statement under section 313 of the Cr. PC has categorically stated that he was at the house of his in-law''s and that when he returned from there, he was caught hold by the Gramin Munda. The prosecution has not been able to bring on record evidence to the effect that the accused was inside the house in the night on the date of occurrence. Therefore, the onus as stipulated under section 106 of the Indian Evidence Act is not passed on to the accused to explain the circumstances of the death as it was not within his special knowledge. None of the children of the accused and the deceased have come forward to support the case that this accused was responsible for commission of the death of his own wife. None of the hearsay witnesses also who attributed knowledge of the occurrence through the children of the accused show that the children had narrated that their father had killed their mother. None of the hearsay witnesses also who attributed knowledge of the occurrence through the children of the accused show that the children had narrated that their father had killed their mother. Prosecution has also miserably failed to prove the motive behind the occurrence. The case hinges upon the circumstantial evidence. Learned Amicus Curiae has relied upon the judgment of the Supreme Court in the case of of Sharad Birdhichand Sarda versus State of Maharashtra reported in , (1984) 4 SCC 116 , followed in the case of Gagan Kanojia and another versus State of Punjab , (2006) 13 SCC 516, para-10. Reliance is also placed in the case of Kuna @ Sanjaya Behera versus State of Odisha , (2018) 1 SCC 296 , para20], where the Apex Court has observed that in the case of circumstantial evidence, motive plays an important part in order to tilt the scale. While summarizing his argument, he submits that neither are any of the circumstances conclusive in nature, nor they taken together, form a complete chain which leads to the only hypothesis, which is not consistent with the innocence of the accused. If the circumstances have not been proved to the hilt, case of the prosecution cannot solely depend upon non-explanation on the part of the accused in his statement under section 313 of the Cr. PC, as required under section 106 of the Indian Evidence Act. Appellant is languishing in jail since eleven years and about five months, as per the report of the Superintendent of Birsa Munda Central Jail, Hotwar, Ranchi dated 31.01.2019 at Flag-''C''. The impugned order suffers from serious mis-appreciation of evidence on record. Therefore, conviction recorded on the basis of such sketchy evidence is fraught with risk. It deserves to be set aside. 9. Learned Additional Public Prosecutor has argued in support of the findings recorded by the learned Trial Court. He submits that they are based on due consideration of the entire materials on record brought by the prosecution. Accused is the husband of the deceased. Informant is the mother of the accused. She had no reason or enmity as against her own son to implicate him in the crime. The defence has not been able to show any reason for false implication by the Informant of her own son. Her statement made in the Fardbeyan has been supported during trial. Informant is the mother of the accused. She had no reason or enmity as against her own son to implicate him in the crime. The defence has not been able to show any reason for false implication by the Informant of her own son. Her statement made in the Fardbeyan has been supported during trial. She has clearly shown that the accused tried to assault her by waking up her in the night, however, she fled away. When she returned in the morning she saw the dead body of her daughter-in-law who was crushed with stone. She has also stated that there was quarrel relating to the consumption of country made liquor between the husband and the wife and in the recent past, behavior of her son was not good. That is why he has killed his wife in a cruel manner. The children of the deceased and the appellant are of small age and could not be expected to come forward to depose during trial. However, statements of other prosecution witnesses who have reached the place of occurrence upon hearing the incidence in the morning taken together with the statement of P.W.2 Manjhari Kui and the motive explained by her, clearly complete the circumstance and conclusively nail the guilt of the accused. In this background, nonexplanation of the accused about the reason for death of his wife or the reason for circumstances of death of his wife in his own house is quite conspicuous and establishes the prosecution case beyond shadow of all reasonable doubts. The opinion of the Medical Officer Dr. Bal Krishna Sahni, PW.10, who has conducted the Post Mortem examination, shows serious ante mortem injuries, as described above, on the body of the deceased which led to her death. In the opinion of the Doctor, injury no.1 was caused by hard and blunt substance, may be stone and death was caused due to hemorrhage and shock due to head injury no.1. Learned counsel for the State submits that the blood stained soil, stone and lathi were seized from the place of occurrence in the presence of witnesses and have been proved as Ext. 4 by the Investigating Officer, P.W.9 Babu Ram Bhagat. As such, all these circumstances which are conclusive in nature stands duly established against the accused. Learned counsel for the State submits that the blood stained soil, stone and lathi were seized from the place of occurrence in the presence of witnesses and have been proved as Ext. 4 by the Investigating Officer, P.W.9 Babu Ram Bhagat. As such, all these circumstances which are conclusive in nature stands duly established against the accused. Findings of the learned Trial Court therefore do not suffer from any error or mis-appreciation of evidence on record. Appeal being without merit deserves to be dismissed. 10. We have considered the submission of learned Amicus Curiae, learned Additional Public and have gone through the entire material evidence on record and perused the impugned judgment. From discussion of the entire evidence on record in the foregoing paragraphs, we find that the Informant in her fardbeyan had made a clear statement that in the night of 24.09.2007 she along with her daughter-in-law and grandchildren had gone to sleep after having food. Thereafter she says that her son woke her up and tried to assault her, then she fled away. The combined reading of both the sentence gives an impression that at the time of going to bed, her son was not in the house. Whether son of the Informant was in the house on the fateful night has not been proved by any other prosecution witness. The accused when confronted with the material evidence during his examination under section 313 Cr.P.C in an answer to question no.4, has categorically stated that he was not in the house and had gone to his in-laws place. When he returned from there, he was caught hold by Gumida Sinku (P.W.3), Munda of the village, who has turned hostile during trial. We find that the other prosecution witness P.W.4 Rupa Purti, P.W.5 Sulbu Purti have also turned hostile. Their statements referred to hereinabove, show that they had attributed the knowledge of the incidence from the mouth of the children, one of them named is P.W.5, but the daughter of the deceased Niti Munda has not been examined. Even the statements of these two hostile witnesses do not show that children of the accused had named the accused as the perpetrator of the crime. In fact, Niti Munda had stated that somebody had killed her mother. Even the statements of these two hostile witnesses do not show that children of the accused had named the accused as the perpetrator of the crime. In fact, Niti Munda had stated that somebody had killed her mother. We find from the statement of P.W.6 Barai Samad, P.W.7 Budhram Kunkal and P.W.8 Mahendra Hembrom, all hearsay witnesses, that they have not seen the occurrence. PW-6 has reached the place of occurrence in the morning after hearing it from the village Munda. P.W.7 says that he heard from the ladies working in a school. He further states that while he was coming back from work on second day i.e., 25.09.2007, he saw the accused Kaptan being caught hold by the villagers and Munda had called him to see when he went there. This village Munda P.W.3 has himself turned hostile and not supported the prosecution case. We further find that the prosecution had not produced report of the Forensic Science Laboratory in respect of the blood stained soil, lathi and stone seized from the place of occurrence and whether they were connected with the accused and commission of the crime by the accused. P.W.2 Informant in her deposition at para 1 states that she had gone to the paddy field for protecting it. She further states that nearby persons told her that there was altercation between the husband and the wife and that her son had killed her daughter-in-law by assaulting with a stone. She has also stated that in the house husband and wife and children were there. These statements of P.W.2 are inconsistent to her statements made in the fardbeyan as noted herein above. 11. When the entire evidence on record is considered in this light, we find that there is no direct evidence in this case in the nature of eye witness. The case of the prosecution rests on circumstantial evidence. When the entire prosecution evidence is considered, we find that except the statement of P.W.2 who herself is a hearsay witness and has not seen the occurrence, no other prosecution witness has even been able to establish the presence of the accused in the house in the night of 24.09.2007 when the victim Mandui Kui was murdered. When the entire prosecution evidence is considered, we find that except the statement of P.W.2 who herself is a hearsay witness and has not seen the occurrence, no other prosecution witness has even been able to establish the presence of the accused in the house in the night of 24.09.2007 when the victim Mandui Kui was murdered. None of the children of the accused and the deceased have come forward to depose about the person responsible for commission of offence, though they were the natural witness to the crime being inside the house. In such circumstances, when the prosecution has not been able to establish its own case on the basis of conclusive circumstances in a manner that chain of circumstance is complete, the onus to prove the circumstances leading to the death cannot be shifted to the accused / appellant, more so for the reason that he had categorically denied being present in his house on that night. Rather, he states, that he had gone to his in-laws place and when he returned, he was caught hold by Munda of the village. 12. As an upshot of the aforesaid discussions based upon forensic analysis of the entire material evidence on record, we do not find that the prosecution has been able to prove its case beyond shadow of all reasonable doubt. As such, the impugned judgment of conviction and order of sentence cannot be sustained in the eyes of law. Accordingly, they are set aside. Appeal stands allowed. Appellant is in jail, he is directed to be released forthwith, if not wanted in connection with any other case. Let lower court records be sent to the learned court below along with a copy of the judgment. 13. While parting, this Court records its appreciation for the valuable assistance rendered by the learned Amicus Curiae Mr. Rishi Pallava. His admissible legal remuneration should be borne by the Secretary, High Court Legal Services Committee. Let such payment be made within four weeks from the date of receipt of certified copy of the judgment along with an application.