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2020 DIGILAW 930 (JHR)

Aiwon Kuntia v. State of Jharkhand

2020-09-24

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. In Majhgaon P.S. Case No. 31 of 2007, Nandlal Purty and Aiwon Kuntia were named as accused by the informant whose fardbeyan was recorded at 11:00 AM on 22.07.2007. After the investigation a charge-sheet was submitted against them and they have faced the trial on the charge under section 302/34, 201 and 379 of the Indian Penal Code. 2. In Sessions Trial No. 75 of 2008, the appellant has been convicted and sentenced to R.I. for life and fine of Rs. 5,000/- under section 302/34 of the Indian Penal Code R.I. for two years and fine of Rs. 1,000/ - under section 201 of the Indian Penal Code and R.I. for three years under section 379 of the Indian Penal Code, Nandlal Purty is still absconding. 3. During the trial the prosecution has examined 13 witnesses - all are co-villagers of the informant except PW-12 and PW-13. 4. The case of the prosecution is that Nandlal Pingua was a handicapped person. On 21.07.2007 he had gone to village market with Nandlal Purty and Aiwon Kuntia and by the evening they came back home. At about 18:30 PM the appellant and Nandlal Purty again came to the house of the informant and took Nandlal Pingua on a red-colour cycle to help him ease out the nature's call. Thereafter the accused persons were not seen in the village. Next day morning dead-body of Nandlal Pingua was found floating in the village pond. Nandlal Pingua was a pensioner and at the time when he was accompanied by the accused persons he was carrying about Rs. 1,000/- with him and to steal his money they have committed his murder. 5. The case of the prosecution is based on circumstantial evidence. There are at least six witnesses who have seen Nandlal Pingua lastly in the company of the accused persons in the evening of 21.07.2007 and the next day morning his dead-body has been found in the village pond. 6. 5. The case of the prosecution is based on circumstantial evidence. There are at least six witnesses who have seen Nandlal Pingua lastly in the company of the accused persons in the evening of 21.07.2007 and the next day morning his dead-body has been found in the village pond. 6. In Gambhir vs. State of Maharashtra, (1982) 2 SCC 351 the Hon'ble Supreme Court has observed: “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.....” 7. The informant is brother of Nandlal Pingua, the deceased. He has seen his brother leaving home at about 18:00 PM with the appellant. He has deposed in the Court that in the afternoon of 21.07.2007 the appellant and Nandlal Purty had gone to Aamda Hat (Market) with his brother and they came back home at about 17:00 PM. Again at about 18:30 PM on the pretext of helping him to ease out the nature's call they took him near a pond towards western side of the village, but they did not come back. He has further stated that the wife of Brinder Pingua who had gone towards the pond saw a dead-body and informed him. Thereafter when the dead body was brought of from the pond he found that it was of his brother. He has informed the village Munda and on the information of village Munda the police came to the village and recorded his fardbeyan. Thereafter when the dead body was brought of from the pond he found that it was of his brother. He has informed the village Munda and on the information of village Munda the police came to the village and recorded his fardbeyan. PW-3 has also stated that the appellant Nandlal Purty had gone to village Aamda Hat (Market) with Nandlal Pingua in the afternoon of 21.07.2007 and they came back home at about 17:00 P.M. The appellant and Nandlal Purty had gone with Nandlal Pingua towards the pond and killed him. PW-4, PW-5, PW-6 and PW-10 and all have deposed in the Court that they have seen the appellant and Nandlal Purty taking Nandlal Pingua on a cycle towards the pond and thereafter they were not seen in the village. Next day morning dead-body of Nandlal Pingua was found floating in the village pond. One orange coloured small plastic torch and slippers with blue ribbon were found near the dead-body of Nandlal Pingua at the pound of village Tarapai. The seizure-list was prepared by the investigating officer at 11:45 AM on 22.07.2007 in presence of Murli Chatar (not examined) and PW-8. At 17:30 PM on the same day one red coloured hero cycle, one orange coloured small plastic torch, coins of seven rupees, one key with a ring and one red coloured full-pant said to be belonging to the deceased were recovered at a new under-constructed brick-house in village Tarapai, in presence of PW-7 and Shambhu Charan Pingua (not examined). The informant and other co-villagers have remained unshaken during their cross-examination and they have consistently deposed in the Court that they have seen the appellant and Nandlal Purty taking away Nandlal Pingua on a cycle towards the pond. PW-1, PW-3 and PW-4 have also stated that on the pretext of helping Nandlal Pingua to ease out the nature's call the appellant and Nandlal Purty had taken him on a cycle towards the pond in the evening of 21.07.2007. 8. The informant is intimately related to Nandlal Pingua but other witnesses who are the co-villagers had no enmity with the accused persons. The minor discrepancies in their testimony would not create any doubt on complicity of the appellant in the crime. It is no longer a debatable point that in the evidence of prosecution witnesses some inconsistence exaggeration, improvement, omissions and embellishments are bound to happen. The minor discrepancies in their testimony would not create any doubt on complicity of the appellant in the crime. It is no longer a debatable point that in the evidence of prosecution witnesses some inconsistence exaggeration, improvement, omissions and embellishments are bound to happen. This may occur on account of lapse of time, forgetfulness and stress of stress cross-examination. In Leela Ram vs. State Haryana, (1999) 9 SCC 525 the Hon'ble Supreme Court has held as under: “9........There are bound to be some discrepancies between the narrations of different witnesses when they speak on details and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.....” 9. A strong suspicion would arise against the accused if it is shown that the victim was lastly found in his company and soon thereafter his dead-body was recovered. The circumstance of last-seen-together is considered a very strong piece of incriminating circumstance which if established by cogent evidence and corroborated by other independent circumstances would become a clinching evidence. In a series of judgments the Hon'ble Supreme Court has observed that in law a presumption would arise that it is the person who was last seen with the deceased would have killed him and the burden to rebut the same lies on the accused to show otherwise. However, the importance of last-seen together evidence cannot be over emphasized in a criminal trial as this by itself alone is not sufficient to record conviction of an accused and it is quite a settled proposition in law that before onus shifts on the accused by operation of section 106 of the Evidence Act it must be found that the prosecution has established a prima-facie case against the accused. As a general rule in every case an inference on complicity of the accused cannot be raised by invoking section 106 of the Evidence Act, for the provisions under section 106 provides that when any fact is especially within the knowledge of a person and it is reasonably not possible, almost to the extent of impossibility, for the prosecution to prove such fact the burden of proving the fact would lie on the accused. Therefore, if the prosecution is able to demonstrate that some facts are predominantly and without exception within the knowledge of the accused still he has failed to disclose the facts and furnish an explanation to the incriminating circumstance of last-seen together, a presumption under section 106 of the Evidence Act can be legitimately drawn against him. 10. In Rajender alias Rajesh alias Raju vs. State of Delhi, (2019) 10 SCC 623 the Hon'ble Supreme Court has observed as under: “12.2.4.......Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the Court to be probable and satisfactory and if he fails to offer such an explanation on this basis of facts within his special knowledge, the burden cast upon him under Section 106 is not discharged of particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him. This, however, does not mean that Section 106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. Section 106 only lays down the rule that when the accused does not throw any light upon facts which are specially within his/her knowledge and which cannot support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances.” 11. In the present case the prosecution has led cogent and consistent evidence through the prosecution witnesses to establish that Nandlal Pingua was lastly seen in the company of the appellant in the evening of 21.07.2007. In the present case the prosecution has led cogent and consistent evidence through the prosecution witnesses to establish that Nandlal Pingua was lastly seen in the company of the appellant in the evening of 21.07.2007. He has died a homicidal death that has been proved by the prosecution with the help of inquest report, post-mortem report and the medical evidence. PW-12, Dr. D.K. Mishra who has conducted the post-mortem examination on 22.07.2007 at 16:00 hrs. has found the following ante-mortem injuries on Nandlal Pingua: (i) Left external ear pinna cut. (ii) A small lacerated wound on upper part of upper lid of left eye. (iii) A lacerated wound on left flank measuring 1/2” x 1/2” x 1/2.” (iv) Profuse frothing from nose. (v) Laryngeal area swollen. (vi) A small lacerated wound on anal area. (vii) Leakage of facial matter from anus. 12. According to PW-12, the injuries to Nandlal Pingua were caused by hard and blunt substance such as stone and knife and his death has occurred within 12 to 48 hrs. The observation of PW-12 regarding time of death corroborates the prosecution story that Nandlal Pingua was lastly seen in the company or he appellant at about 18:30 PM and soon thereafter his dead-body was found in the village pond. The time gap between these two events is so short that the possibility of committing murder of Nandlal Pingua by any other person must come in the explanation of the appellant, but he is completely silent on this aspect. 13. In the case of Bodhraj @ Bodha and Others vs. State of Jammu and Kashmir, (2002) 8 SCC 45 the Supreme Court has explained the law on last-seen together, thus: “31. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.......” 14. Another circumstance relied upon by the prosecution to prove the charge against the appellant is that the accused persons have not been seen in the village after they were lastly seen taking away Nandlal Pingua towards the village pond. Generally ascendance is considered a weak piece of evidence nonetheless it is relevant in a criminal trial. A person may be found absconding from his house due to fear or on account of apprehension of arrest but merely because of this reason an inference on complicity of a person in the crime cannot be raised. In Sk. Yusuf vs. State of West Bengal, (2011) 11 SCC 754 the Supreme Court has held as under: “31.......It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment. [Vide Matru vs. State of Uttar Pradesh, Paramjeet Singh vs. State of Uttarakhand and Dara Singh vs. Republic of India]. Thus, in view of the law referred to hereinabove, mere ascendance of the appellant cannot be taken as a circumstance which gives rise to draw an adverse inference against him.” 15. However, when other circumstances are pointing towards guilt of an accused his ascendance soon after the occurrence would be an incriminating material against him which would provide an additional link in the chain of circumstances. 16. In Kundula Bala Subrahmanyam vs. State of A.P. (1993) 2 SCC 684 the Hon'ble Supreme Court has dealt with ascendance of the accused as under: “23. A closer link with the conduct of the appellants both at the time of the occurrence and immediately thereafter is also the circumstance relating to their absconding. Md. 16. In Kundula Bala Subrahmanyam vs. State of A.P. (1993) 2 SCC 684 the Hon'ble Supreme Court has dealt with ascendance of the accused as under: “23. A closer link with the conduct of the appellants both at the time of the occurrence and immediately thereafter is also the circumstance relating to their absconding. Md. Baduruddin PW-15, the investigating officer, deposed that he had taken up the investigation of the case and having examined PWs. 1-4 had caused search to be made for the accused but they were not found in the village and despite search, they could not be traced. Appellant 1 surrendered before the court on November 10, 1981 while appellant 2 surrendered in the court on December 7, 1981. No explanation, worth the name, much less a satisfactory explanation has been furnished by the appellants about their absence from the village till they surrendered in the court in the face of such a gruesome tragedy. Indeed, absconding by itself may not be a positive circumstance consistent only with the hypothesis of guilt of the accused because it is not unknown that even innocent persons may run away for fear of being falsely involved in a criminal case and arrested by the police, but coupled with the other circumstances which we have discussed above, the absconding of the appellants assumes importance and significance. The prosecution, has successfully established this circumstance also to connect the appellants with the crime.” 17. In a criminal trial, generally motive is considered a weak piece of evidence however it cannot be said that it is not at all relevant to decide culpability of an accused and therefore its importance cannot be undermined. A crime can take place without premeditation or with planning and it may happen at the spur of the moment and therefore many times motive may remain closeted in the chest of accused, however, if the prosecution leads reliable evidence on motive it significantly strengthens its case. The evidence tendered by the prosecution witnesses on motive is weak but then the defence has not even suggested that on account of enmity or some other reason the appellant has been falsely implicated in this case. In Surinder Pal Jain vs. Delhi Administration, (1993) Supp. The evidence tendered by the prosecution witnesses on motive is weak but then the defence has not even suggested that on account of enmity or some other reason the appellant has been falsely implicated in this case. In Surinder Pal Jain vs. Delhi Administration, (1993) Supp. (3) SCC 681 the Hon'ble Supreme Court has observed thus: “11........In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof.” 18. The above being the factual scenario, we hold that the prosecution has produced cogent and convincing materials to prove the incriminating circumstances against the appellant which would complete the chain of circumstances and the circumstances so proved are clearly indicating excluding every reasonable possibility of innocence of the appellant that he was involved in the murder of Nandlal Pingua. Therefore, we do not find any ground to interfere with the judgment of conviction of the appellant in Sessions Trial No. 75 of 2008 and accordingly the Criminal Appeal (DB) No. 316 of 2013 is dismissed. 19. Let the lower Court records be sent to the Court concerned, forthwith. 20. Let a copy of the judgment be transmitted to the Court concerned and concerned Jail Superintendent through FAX. Appeal dismissed.