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2020 DIGILAW 1015 (JHR)

Nepali Behra v. State of Jharkhand

2020-10-19

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. In S.T. Case No. 74 of 2012 the appellant has been convicted and sentenced to RI for life and a fine of Rs. 2,000/- under Section 302 of the Indian Penal Code (in short IPC) with a default stipulation to undergo SI for three months in default of payment of fine. 2. In the morning of 24.06.2011 Ramanand Behra received an information from Shibu Master that Nepali Behra and Manju Behra have committed murder of Sabita Behra. On the basis of his fardbeyan which was recorded at 13:00 hours the same day, Hat Gamharia P.S. Case No. 17 of 2011 has been lodged under Section 302/34 IPC against Nepali Behra and Manju Behra. They have faced the trial on the charge of committing murder of Sabita Behra in furtherance of criminal conspiracy. During the trial the prosecution has examined eight witnesses out of whom PW-1 and PW-4 are closely related to the appellant and the deceased. PW-2 PW-3 and PW-5 are co-villagers of the appellant and PW-7 and PW-8 are the Investigating Officers. 3. The case of the prosecution is that Sabita Behra was married to Nepali Behra in the year 2010. Nepali Behra had illicit relationship with his elder sister-in-law (bhabhi) and that was the reason about six months after the marriage the appellant started quarrelling with his wife. In the night of 23.06.2011 there was fight between them and the appellant killed Sabita Behra by strangulation. The dead-body of Sabita Devi was found in her matrimonial home and the doctor who has conducted the autopsy has rendered an opinion that the death was caused due to compression and breaking of tracheal tube. 4. The learned Sessions Judge has held that the prosecution has failed to prove that death of Sabita Behra has been caused in furtherance of criminal conspiracy between Nepali Behra and Manju Behra however, from the prosecution evidence it is proved that there was a quarrel between husband and wife in the night and next day morning dead-body of Sabita Behra has been found in her matrimonial home, still, the appellant Nepali Behra had failed to explain the incriminating circumstance when he was examined in the Court and therefore, the chain of circumstance is proved. 5. The prosecution has based its case against the appellant on circumstantial evidence. 5. The prosecution has based its case against the appellant on circumstantial evidence. According to the prosecution Nepali Behra had a motive to kill his wife the constant quarrel between the couple has been proved. Sabita Behra has met with homicidal death in her matrimonial home and the accused has failed to offer a plausible and acceptable explanation to cause of death of his wife. In a case based on circumstantial evidence an inference of guilt can be justified only when all the circumstances are found to be incompatible with innocence of the accused and the circumstance from which an inference of guilt are drawn must be proved beyond reasonable doubt. In Anjan Kumar Sarma vs. State of Assam, (2017) 14 SCC 359 , the Hon'ble Supreme Court has discussed the factors to be taken into account in adjudication of the cases of circumstantial evidence, thus: “14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are: (1) The circumstances from which the conclusion of guilt to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established. (2) The facts so established should he 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. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved. (5) 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. [See Sharad Birdhichand Sarda vs. State of Maharashtra and M.G. Agarwal vs. State of Maharashtra].” 6. In the Court the informant has stated that about six months after the marriage the appellant started quarreling with his sister. According to him the reason behind harassment of his sister and quarrel with her husband was illicit-relationship of her husband with Manju Behra. In the Court the informant, PW-1, has deposed that his sister was living separately from her husband, who was living with Manju Behra. According to him the reason behind harassment of his sister and quarrel with her husband was illicit-relationship of her husband with Manju Behra. In the Court the informant, PW-1, has deposed that his sister was living separately from her husband, who was living with Manju Behra. The relationship of his sister with her husband was not good and her husband and Manju Behra would frequently quarrel with her. Though it may not be of much relevance in this case that in his cross-examination PW-1 has failed to give any detail or quarrel between hid sister and her husband, what is important is to record that he has said that villagers have told him about bad relationship between his sister and her husband. He has stated that an information about the death of his sister was given to him by Shibu Master but this man has not been produced during the trial. In his cross-examination he has stated that at the time of his examination Shibu Master was alive and living in the living in the village. He has received an information about 06:00 AM in the morning and he says that he has informed Munda of the village and the police. However, Munda of the village has not been examined in this case. PW-2 is a co-villager who has stated in the Court that in the night about 11:00 PM his wife woke him up, he has hard hulla towards the house of the appellant and next day morning he has gone to his house and seen the dead-body of Sabita Behra. In his cross-examination he admit that his house is just across the road in front of the house of the appellant. From the statement of PW-2 in the cross-examination two thing would appear. Firstly his saying that he has heard hulla coming, towards the house of the appellant is not true for the simple reason that if he is living in front of the house of the appellant he must know with certainty whether hulla was coming from his house or not and secondly his conduct in not going there after hearing hulla is quite unnatural - he has gone there next day. PW-3 is another co-villager who has deposed in the Court that the previous night there was a fight between the appellant and his wife and next day morning he came to know that the appellant has killed his wife. In his cross-examination he says that he has gone to the house of the appellant after the police came in the village. He does not say whether he is staying in the village and that he has seen quarrel between the appellant with his wife. Hi evidence like the testimony of other co-villager is quite cryptic and without any foundation. PW-4 is elder brother of the informant and he is not a reliable witness inasmuch a he has given a different version of the occurrence. PW-5 is another co-villager who has stated that he has found dead-body of Sabita Behra on a cot in her house and seen mark of rope on her neck. He is an inquest witness. In his cross-examination he has stated that when the police came in village he was at the place of occurrence but what make him a doubtful witness is his admission that he live at about 15 kms. from village Baibera and he has not offered any explanation why he had gone to the place of occurrence on 24.06.2011. 7. PW-6 Dr. Sanjeet Kumar Pankaj who has conducted the autopsy on 24.06.2011 has found that trachea of Sabita Behra was broken, just below the black mark on her neck, he has also seen black oblique mark on the neck, rigor mortis was present in both the limbs, heart full of blood in all chambers, lungs congested and liver full of blood. In his opinion Sabita Behra has suffered asphyxial death due to compression and breaking of tracheal tube. These findings by PW-6 would not establish that Sabita Behra was murdered particularly for the reason that oblique mark was found on her neck. In the Textbook of Medical Jurisprudence and Toxicology of Modi, 26th Edition, at page 516, it is observed that if fingers are used (throttling) marks of pressure by thumb and the fingertips are usually found on either side of the windpipe and in homicidal strangulation ligature mark would be horizontal or transverse, continuous, round the neck and low down the neck below the thyroid. It is also common that in a case of homicidal strangulation abrasions and ecchymosed round the ligature mark are found, carotid arteries internal coats are ruptured and larynx trachea and hyoid bone are fractured. 8. PW-1 has deposed in the Court that Shibu Master informed him that his sister has committed suicide by hanging. PW-4 has stated that when his wife heard cries of the child of the appellant she woke him up. He has further stated that his wife had woken up the appellant also. From the evidence of PW-4 it is clear that he is living near the house of the appellant and he has not seen any suspicious activity. From the medical evidence it is not possible to conclude that Sabita Behra was killed by strangulation and therefore, it is difficult to hold in the above facts that Sabita Behra has been killed by the appellant sometime in the night of 23.06.2011. 9. Mrs. Nehala Sharmin, the learned APP has contended that of the appellant during his examination under Section 313 Cr.P.C. would be a certain pointer that he has killed his wife. Section 106 of the Indian Evidence Act presupposes exclusive knowledge of an accused about some fact which may not be known to the prosecution even after a strenuous exercise. Such facts must be revealed by him when he is examined under Section 313 Cr.P.C. The language of Section 106 of the Indian Evidence Act is very clear and as held in Shambhu Nath Mehra vs. State of Ajmer, AIR 1956 SC 404 , Section 106 of the Indian Evidence Act does not relieve the prosecution of its burden to prove its case. In the present case the case set up by the prosecution against the appellant is not proved. In Ranjit Singh vs. State of Punjab, (2011) 1 SCC 285, the Hon'ble Supreme Court has observed that merely because death of a woman has taken place in her matrimonial home that by itself is not sufficient to raise a presumption under Section 106 of the Indian Evidence Act to hold an accused guilty for murder. The Investigating Officer has not collected any material during the investigation which would connect the appellant with the crime. PW-6 has not found any external injury on Sabita Behra which would have indicated a struggle before she was strangulated to death as alleged by the prosecution. The Investigating Officer has not collected any material during the investigation which would connect the appellant with the crime. PW-6 has not found any external injury on Sabita Behra which would have indicated a struggle before she was strangulated to death as alleged by the prosecution. None of the prosecution witnesses has come to the Court to say that he has found any scratch mark on face, neck and hand of the appellant which generally would be found on the person of the assailant when one tries to strangulate a person the victim would try to resist and in the process the a assaulter would suffer some injuries on his face, neck and hand. The prosecution has failed to establish even foundation of its case and the motive behind the Crime has not been found proved. The co-accused Manju Behra has been acquitted by the learned Sessions Judge and there is no material on record to infer illicit relationship between the appellant and Manju Behra. Even assuming that the relationship between the appellant and his wife was not good that by itself is not a sufficient circumstance to hold that the appellant has committed murder of his wife. 10. Nagesh vs. State of Karnataka, (2012) 6 SCC 477 , the Hon'ble Supreme Court has held as under: “29. Another very important aspect of this case is that the accused in their statement under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) took up the stand of complete denial of their involvement in the crime and offered no explanation before the Court. As noticed above, the law required the accused Nagesh in particular to provide some explanation as he was last seen in the room with the deceased. Rather than providing some explanation of the circumstances under which the deceased died, the appellant offered complete denial. But strangely when PW-4, the mother of the deceased, was cross-examined by the defence, they put the suggestion love affair with a student from her to Belgaum to ensure that the said love affair failed. The deceased had become desperate Belgaum and had taken poison and died. If this be the stand of the accused, then there was no occasion for the accused to deny every material piece of evidence as well as not to give any explanation when the accused were specifically asked for.” 11. The deceased had become desperate Belgaum and had taken poison and died. If this be the stand of the accused, then there was no occasion for the accused to deny every material piece of evidence as well as not to give any explanation when the accused were specifically asked for.” 11. To conclude, we find that the prosecution has failed to prove the circumstances which would implicate the appellant in this case for causing murder of his wife and the chain of circumstances is not complete. Accordingly, we hold that the prosecution has failed to prove the charge of murder against the appellant and therefore, his conviction in S.T. Case No. 74 of 2012 under Section 302 is set-aside. 12. Accordingly, the judgment of conviction of the appellant, namely Nepali Behra under section 302 IPC dated 14.5.2013 and the order of sentence of RI for life and fine of Rs. 2,000/- for the said offence dated 17.5.2013 passed by the learned Additional Sessions Judge, West Singhbhum at Chaibasa in S.T. Case No. 74 of 2012 are set-aside. 13. Mr. Nehala Sharmin, the learned APP states that with remission the appellant namely Nepali Behra has remained in custody for more than eleven years and ten months. 14. Accordingly, the appellant, namely Nepali Behra, who is in custody, shall be set free forthwith, if not wanted in connection to any other criminal case. 15. In the result, Criminal Appeal (DB) No. 373 of 2013 is allowed. 16. Let lower Court records be transmitted to the Court concerned, forthwith. 17. Let a copy of the judgment be transmitted to the Court concerned through “FAX.”