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2020 DIGILAW 1059 (JHR)

Mahabir Kuer, S/o Bidu Kuer v. State of Jharkhand

2020-11-09

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

body2020
JUDGEMENT : Shree Chandrashekhar, J. Jarmundi P.S. Case No. 206 of 2007 was lodged on 12.10.2007 on an allegation that Mahabir Kuer has beaten his wife to death. On the basis of the fardbeyan of Harimohan Rai which was recorded on 12.10.2007 at about 9:00 AM at village- Aamgachi, a First Information Report was lodged against Mahabir Kuer under section 302 of the Indian Penal Code (in short, IPC) for committing murder of Shila Devi. After the investigation a charge-sheet was laid against him and he has faced the trial on the charge under section 302 IPC. In the trial, the prosecution has examined eleven witnesses, out of whom Harimohan Rai PW-1 is the father of Shila Devi and PW-2, PW-3, PW-5, PW-6, PW-7, PW-8 and PW-9 are the co-villagers. PW-10, Obin Mahto is the Chowkidaar who according to the prosecution has informed the police about death of Shila Devi. PW-4, Dr. Sita Ram Sah who has conducted the post-mortem examination has found one defused swelling over the right chest of Shila Devi. He has also observed 6th to 9th ribs fractured, liver lacerated and haemotoma in abdominal cavity - the injuries were ante-mortem in nature. 2. The learned Sessions Judge (F.T.C), Dumka has held that PW-1 and PW-10 have tendered acceptable evidence and the medical evidence would establish that Shila Devi was ill-treated and assaulted. The dead body was found in her matrimonial home, still, the accused has failed to offer an explanation to the incriminating circumstances when he was examined under section 313 of the Code of Criminal Procedure (in short, Cr.P.C). 3. In paragraph no.11 of the Judgement, the learned trial Judge has found the following circumstances proved by the prosecution : "(i) After 5 years of marriage relationship between Mahabir and Shila was not good and Mahabir used to not only mercilessly beat Shila rather he also used to harass her and she was not given proper food. (ii) Shila was married with Mahabir. (iii) Shila informed her parent about ill-treatment meeted out to her by her husband and also about beating. (iv) Mahabir informed the informant that she consumed fulkori for which there is no evidence. (v) The dead body of Shila was found in her matrimonial home lying on a cot. (ii) Shila was married with Mahabir. (iii) Shila informed her parent about ill-treatment meeted out to her by her husband and also about beating. (iv) Mahabir informed the informant that she consumed fulkori for which there is no evidence. (v) The dead body of Shila was found in her matrimonial home lying on a cot. (vi) She had swelling on her chest, fracture of 6th to 9th ribs, lacerated liver and big haemotoma in abdominal cavity (vii) In his statement recorded U/s 313 Cr.P.C the accused has given no explanation as to how his wife died, neither any explanation was put forward by him regarding injury sustained by his wife. (viii) The accused left the village-Aamgachi just after the occurrence and was arrested in March, 08 and was produced before the learned C.J. M., Dumka on 19.03.2008. (ix) Just before the occurrence Shila was living in her matrimonial home along with her husband (accused). (x) No evidence put forward by the accused of the defence claim, that Shila fell down from a height near the pond of the village." 4. The learned trial Judge has finally held that notwithstanding the improvements and omissions in the testimony of PW-1 and PW-10 their evidence cannot be discarded and the circumstances proved by the prosecution complete the chain of circumstances leading to one and only one conclusion that the appellant has committed murder of his wife. Accordingly, the appellant was convicted and sentenced to R.I for life and a fine of Rs.5,000/- under section 302 IPC, with a default stipulation to undergo R.I for further six months. 5. The case of the prosecution is based on circumstantial evidence. In "R. Shaji v. State of Kerala" reported in (2013) 14 SCC 266 the Hon'ble Supreme Court has observed that the circumstances on the basis of which the conclusion of guilt is to be drawn must be fully established, of a conclusive nature and exclude all possible hypothesis except the one to be proved. In "Gambhir v. State of Maharashtra" reported in (1982) 2 SCC 351 the Hon'ble Supreme Court has held as under : "9. In "Gambhir v. State of Maharashtra" reported in (1982) 2 SCC 351 the Hon'ble Supreme Court has held as under : "9. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests : (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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 none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence…….” 6. PW-1, the informant is the father of Shila Devi. Obviously he is intimately related to her and his evidence has been challenged on the ground that it was tampered with malice. In "Masalti v. State of U.P. reported in AIR 1965 SC 202 the Hon'ble Supreme Court has held that evidence of a related witness cannot be discarded on the ground of relation and we shall also keep in mind that in "Nallabothu Venkaiah v. State of A.P." reported in (2002) 7 SCC 117 the Hon'ble Supreme Court has observed that testimony of a related witness is required to be scrutinized with a greater degree of care and caution. PW-1 has deposed in the Court that his daughter was married to the appellant and she was quite comfortable in her matrimonial home for about five years, but thereafter relation between husband and wife deteriorated. Sometime about two years back the appellant started beating his wife and she would inform him about her harassment and torture at the hands of her husband. At about 6:30-7:00 AM on 12.10.2007 the appellant told him that Shila Devi is sick and he called him to his house. Then he sent his son there who after sometime informed him that the appellant has killed Shila Devi. He has gone there and found the dead body of his daughter lying on a cot. Her eyes were open and blood was trickling from her ears. Then he sent his son there who after sometime informed him that the appellant has killed Shila Devi. He has gone there and found the dead body of his daughter lying on a cot. Her eyes were open and blood was trickling from her ears. He has seen injuries on her forehead, neck and around the eyes. PW-5, Dilip Kuer, a co-villager of the appellant informed him that in the previous night the appellant committed Maarpit with his wife and the next morning also he has thrashed her. PW-2, PW-3, PW-5, PW-6, PW-7, PW-8 and PW-9 all have deposed in the Court that the appellant was married to Shila Devi, but they have denied that they had any knowledge how she has died. They were declared hostile at the instance of the prosecution. From their cross-examination by the prosecution it would appear that during the investigation they had stated before the police about quarrel between the appellant and his wife, a Panchayati for resolving their dispute and assault by the appellant to his wife, however, in the Court they have denied that they had stated before the police about the Panchayati and assault on his wife by the appellant. PW-5 is distantly related to the appellant (Gaon Ke Rishte Se) and he has controverted in the Court that he has given evidence to help out the appellant. He has denied that his statement was recorded by the police. He has specifically denied that he has made a statement before the police that on 11.10.2007 and 12.10.2007 the appellant has mercilessly beaten his wife. 7. Mrs. Priya Shreshtha, the learned Spl. P.P submits that the testimony of a hostile witness is not discarded altogether and the prosecution can rely upon a part of the evidence of a hostile witness which supports its case. 8. It is now quite settled as a legal proposition that the evidence of a prosecution witness should not be rejected wholesale merely on the ground that the prosecution has labelled him as hostile and cross-examined him. Section 154 of the Evidence Act provides that the Court may in its discretion permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Sub-section 2 to section 154 is unambiguous. Section 154 of the Evidence Act provides that the Court may in its discretion permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Sub-section 2 to section 154 is unambiguous. In terms of sub-section 2 the prosecution is entitled to rely on any part of the evidence of the witness who has not supported its case. 9. In "Sat Paul v. Delhi Admn." reported in (1976) 1 SCC 727 the Hon'ble Supreme Court has observed that : "52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto." 10. The learned trial Judge has dealt with the evidence of the prosecution witnesses who were declared hostile during the trial, however, in the ultimate analysis he has fallen back on the evidence of PW-1 and PW-10. The Chowkidaar of the village, PW-10, has deposed in the Court that at about 06:00 AM he got an information that wife of the appellant has died. From his testimony it appears that by that time the father of Shila Devi had reached the house of the appellant. He says that on enquiry PW-1 told him that the appellant was quarreling with his daughter and he has killed her. He has also seen injury marks on the dead body of Shila Devi. 11. From his testimony it appears that by that time the father of Shila Devi had reached the house of the appellant. He says that on enquiry PW-1 told him that the appellant was quarreling with his daughter and he has killed her. He has also seen injury marks on the dead body of Shila Devi. 11. From the evidence of PW-1 and PW-10, the prosecution has proved that the dead body of Shila Devi was found lying in her matrimonial home. She has suffered injuries before her death was also proved by the prosecution. PW-4, Dr. Sita Ram Sah who has conducted the post-mortem examination at about 11:30 AM on 13.10.2007 has stated that he has found multiple abrasions over right ear, both sides of the chest and forehead of Shila Devi. He has seen defused swelling over the right chest due to fracture of 6th to 9th ribs and in his opinion this injury was caused by hard and blunt substance. In his estimation the time elapsed since death was 36 hrs. from death of the post-mortem examination. 12. The findings of PW-4 and the evidence of PW-1 and PW-10 raise a strong suspicion that Shila Devi has died a homicidal death. The appellant is the husband and if it is shown that at the time when his wife has died he was living under the same roof, a presumption under section 106 of the Evidence Act shall be raised against him. A glance at the testimony of PW-1 would reveal that at the fag end of his deposition on a petition by the prosecution he was re-examined. This time he has identified his signature on his fardbeyan. He has also stated that the inquest report was prepared in his presence. In his examination-in-chief he has stated that after visiting the house of the appellant at about 07:30 AM he had gone to the police station and informed Daroga jee about the occurrence. He has further stated that Daroga jee did not record his statement and after waiting for about 20 minutes at the police station he came back Aamgachi. It is not in dispute that the fardbeyan of PW-1 was recorded at Aamgachi the same morning but the fact remains that the initial version of the informant what he had told the police in the police station was not revealed in the Court. It is not in dispute that the fardbeyan of PW-1 was recorded at Aamgachi the same morning but the fact remains that the initial version of the informant what he had told the police in the police station was not revealed in the Court. He has stated that a Panchayati was convened in the village and the appellant was reasoned with not to fight with his wife, however, he has failed to state in the Court on which date and month or for that matter in which year the Panchayati was convened. Regarding quarrel between the appellant and his wife he has stated in the cross-examination that his daughter would tell him that her husband used to fight with her. The truthfulness of statement of a person who is not alive cannot be tested in cross-examination and, therefore, words spoken by another person are not admissible in evidence. There are exceptions to the rule of hearsay which are provided in the Evidence Act. Under section 32 (1) of the Evidence Act, the statement of a dead person if relates to the cause of death or any of the circumstances relating to the cause of death is admissible in evidence, but then, the story of the miseries of Shila Devi told to her father does not relate to the cause of her death and the statement made by PW-1 that his daughter would tell him about the appellant quarreling with her is not immediate and spontaneous to the occurrence. PW-5, who seems to have made statement before the police under section 161 Cr.P.C that in the night of 11.10.2007 the appellant committed Maarpit with his wife and in the morning of 12.10.2007 he had again beaten her, has not supported the prosecution and in the Court he has flatly refused to have made such a statement before the police. Therefore, in the above facts it must be concluded that the prosecution has failed to establish that Shila Devi was put to harassment and torture by the appellant. 13. No motive has been disclosed by the prosecution for murder of Shila Devi. Her father has stated in the Court that for five years she remained happily married in her matrimonial home but thereafter the appellant started fighting with her. However, no one, even the father of Shila Devi would tell the reason why the appellant had started harassing his wife. Her father has stated in the Court that for five years she remained happily married in her matrimonial home but thereafter the appellant started fighting with her. However, no one, even the father of Shila Devi would tell the reason why the appellant had started harassing his wife. There was no demand of dowry made by the appellant and in about seven years of marriage the couple were blessed with two sons. He was a poor man doing daily wages (Mazdurt) and once had gone to Assam to earn livelihood. PW-1 has himself stated in his cross-examination that he was working as a daily wager and in his examination under section 313 Cr.P.C the appellant has stated that at the time when his wife has died he had gone for work (Mazdun). From the evidence of PW-1 and the investigating officer, particularly in paragraph no. 8, it would appear that PW-1 did not tell the police that the appellant came to his house and told him that Shila Devi was unwell. He has also not stated before the police that when he sent his son, namely, Santosh to see his daughter the appellant fled away. He has also admitted that in his fardbeyan he has not stated that five years after the marriage relation between the appellant and his daughter was on rocks and he has also not told him that in the night the appellant committed Maarpit with his wife. It seems that whatever he has stated in the Court in his examination-in-chief was not stated by him to the police during the investigation. 14. It is a settled proposition in law that minor inconsistency on trivial matters which does not affect the core of the case of the prosecution should not be a ground to discard the testimony in its entirety, but credibility of the witness would be seriously shaken where the witness makes substantial improvements in the Court. In "Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra" reported in (2010) 13 SCC 657 the Hon'ble Supreme Court has observed that: "32. The discrepancies in the evidence of eye witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In "Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra" reported in (2010) 13 SCC 657 the Hon'ble Supreme Court has observed that: "32. The discrepancies in the evidence of eye witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt. (Vide Mahendra Pratap Singh v. State of U.P) 33. In case, the complainant in the FIR or the witness in his statement under Section 161 CrP.C, has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide State v. Sait)" 15. The foundation of the prosecution case to prove the charge against the appellant is laid on the testimony of PW-1. However, the evidence of PW-1, as noticed above, contains exaggerations to such extent that those amount to contradictions and the improvements made by him in his testimony should be excluded from consideration. 16. Mrs. Priya Shreshtha, the learned Spl.P.P has submitted that the appellant who has failed to offer an explanation when he was examined under section 313 Cr.P.C. how his wife has died must be held guilty. Per contra, Ms. Aprajita Bhardwaj, the learned counsel for the appellant has referred to paragraph nos. 21 and 25 of the judgment in "Anjan Kumar Sarma v. State of Assam" reported in (2017) 14 SCC 359 to submit that mere failure of the accused to offer any explanation in his examination under section 313 alone is not sufficient to establish the charge against him. 17. In "Parsuram Pandey v. State of Bihar" reported in (2004) 13 SCC 189 the Hon'ble Supreme Court has observed that the intention behind section 313 Cr.P.C. is to benefit the accused and to assist the Court in reaching its final conclusion, and it is not intended to nail the accused. The accused has right to remain silent and his refusal to answer any question or an evasive or unsatisfactory answer by him to an incriminating circumstance alone would not justify a finding of guilt. The accused has right to remain silent and his refusal to answer any question or an evasive or unsatisfactory answer by him to an incriminating circumstance alone would not justify a finding of guilt. In "Shambhu Nath Mehra v. State of Azmer" reported in AIR 1956 SC 404 the Hon'ble Supreme Court has observed that the normal rule is that the prosecution has to establish a case beyond reasonable doubt and section 106 of the Evidence Act does not relieve the prosecution of the initial burden to prove its case. In "Bharat Vs. State of M.P" reported in (2003) 3 SCC 106 the Hon'ble Supreme Court has observed that failure of the accused to offer an explanation in his statement under section 313 Cr.P.C alone is not sufficient to establish the charge against the accused. 18. Merely on the basis of the medical evidence which raises a doubt that Shila Devi has died a homicidal death, in our opinion, an inference by the operation of section 106 of the Evidence Act on the guilt of the appellant cannot be raised. From cross-examination of PW-4, it would appear that the defence has set up a case that Shila Devi suffered injuries due to a fall and of course it was not disclosed before the Court how she has fallen on the ground, however, without establishing that the appellant was in his house when his wife has died he cannot be convicted for committing her murder. The appellant has, in fact, offered an explanation in his statement under section 313 Cr.P.C. that he was not at home and his explanation cannot be held to be false, for PW-1 himself has deposed in the Court that he was working as daily wager and once gone to Assam for earning his livelihood. 19. The above being the factual scenario, we hold that the prosecution has failed to prove charge under section 302 IPC against the appellant and, accordingly, the judgement of conviction of the appellant, namely, Mahabir Kuer dated 24.11.2008 and the order of sentence of R.I for life and a fine of Rs.5,000/- dated 25.11.2008 under section 302 IPC passed by the learned 5th Additional Sessions Judge (F.T.C), Dumka in Sessions Case No.121 of 2008, are set-aside. 20. The appellant is acquitted of the charge framed against him under section 302 IPC in Sessions Case No.121 of 2008. 21. Mrs. 20. The appellant is acquitted of the charge framed against him under section 302 IPC in Sessions Case No.121 of 2008. 21. Mrs. Priya Shreshtha, the learned Spl. P.P states that the appellant, namely, Mahabir Kuer is in custody. 22. Accordingly, the appellant above-named shall be released forthwith, if not wanted in connection to any other case. 23. In the result, Criminal Appeal (DB) No. 274 of 2009 stands allowed. 24. Let the lower Court records be sent to the Court concerned forthwith. 25. Let a copy of the Judgement be transmitted to the Court concerned and concerned Jail Superintendent through FAX.