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2022 DIGILAW 255 (TRI)

Kishore Jhara v. State of Tripura

2022-05-25

ARINDAM LODH, T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - Heard Mr. N. Majumder, learned counsel appearing for the convict-appellant. Also heard Mr. R. Datta, learned Public Prosecutor appearing for the State of Tripura-respondent. 2. This criminal appeal has been filed under Section-374(2) of Cr.P.C. against the impugned judgment and order of conviction and sentence dated 23.07.2015 passed by the learned Addl. Sessions Judge, Khowai, West Tripura in connection with Sessions Trial No. 10 (T-1) of 2014 whereby and whereunder, the appellant has been convicted under Section-302 of IPC and thereby sentenced to suffer RI for life and to pay a fine of Rs. 3,000/- for the same offence with default stipulation. 3. The prosecution story, in brief, is that The fact of the prosecution case is that on 24.3.2013 at about 6/6.30 p.m. the informant Maniklal Jhara got an information over mobile that his sister Gunamani Jhara was killed by her husband Kishore Jhara who by giving blows of sharp edged dao then fled away. After receiving the said information then and then he rushed to the house of the accused and found dead body of his sister lying in the north eastern side of the courtyard of the house with injuries on her hand and other parts of the body and came to know that on that day at about 5.00 p.m. his brother in law Kishore Jhara suddenly attacked his sister Gunamani Jhara and killed her by giving indiscriminate blows by dao but he could not say the reason of killing of his sister. The informant Maniklal Jhara lodged written ejahar stating the above fact in the ejahar and submitted the same to police officer of Khowai police station getting him at Lankapura and after receiving his ejahar S.I. Mr. L.L. Darlong forwarded the same to officer in-charge of Khowai police station for registration of the case and Mr. Darlong on spot started investigation since the allegation made in the ejahar was cognizable in nature. Duty Officer of Khowai police station after receiving the ejahar on that day registered it as Khowai PS case No. 39 of 2013 under section 302 of IPC and endorsed the investigation of the case to S.I. Mr. L.L. Darlong who already took up the investigation of the case on spot. During investigation Mr. Duty Officer of Khowai police station after receiving the ejahar on that day registered it as Khowai PS case No. 39 of 2013 under section 302 of IPC and endorsed the investigation of the case to S.I. Mr. L.L. Darlong who already took up the investigation of the case on spot. During investigation Mr. Darlong has visited the place of occurrence, prepared hand sketch map of the place of occurrence with separate index, recorded the statement of available witnesses under section 161 of Criminal Procedure Code(in short Cr.P.C.), seized weapon of offence 'dao' under seizure list, sent the dead body to Khowai hospital for post-mortem and after post-mortem seized the wearing apparels of the deceased under seizure list and thereafter on completion of investigation submitted charge-sheet against accused Kishore Jhara under section 302 of IPC before the court of learned Sub-divisional Judicial Magistrate, Khowai who after taking cognizance on police report (charge-sheet) has committed the case to this court for trial of the said accused. 4. Accused Kishore Jhara faced trial before this court. During trial after hearing learned counsel of both sides and on perusal the materials on record my learned predecessor has framed charge against the accused under section 302 of I.P.C. and said charge duly read over and explained to him in Bengali to which he pleaded not guilty and claimed to be tried. 5. The prosecution in order to prove the above charge, examined total 16 (sixteen) witnesses including the informant. The accused side has cross examined the prosecution witnesses. Besides oral evidence the prosecution side also relied on some documents and material and those are FIR, ejahar, seizure lists, hand sketch map with separate index of the place of occurrence, inquest and post-mortem report of deceased, weapon of offence 'Dao' and a 'shari' etc. 6. After closing the evidence of prosecution all implicating materials available from the evidence on record were placed before the accused and his explanations were sought at the time of his examination and recording his statement under section 313, Cr.P.C. The accused denied his involvement in the alleged offence. The case of the defence is total denial of the prosecution case but adduced no evidence in support of his defence case. 7. On the basis of the evidence and materials available on record and after hearing argument advanced by the learned counsel appearing for the parties, the learned Addl. The case of the defence is total denial of the prosecution case but adduced no evidence in support of his defence case. 7. On the basis of the evidence and materials available on record and after hearing argument advanced by the learned counsel appearing for the parties, the learned Addl. Sessions Judge, Khowai, West Tripura, convicted the appellant as aforementioned. 8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction dated 23.07.2015, this present appeal has been preferred by the appellant. 9. Mr. Majumder, learned counsel appearing for the convict-appellant has submitted that the impugned judgment and order of conviction and sentence is wrong, unjust, perverse, materially irregular and cannot sustain in law. He has submitted that the Court below ought to have held that the prosecution miserably failed to bring home the charge under Section-302 of IPC framed against the present appellant. The learned trial Court by way of non-reading, misreading and wrong and improper appreciation of evidence on record arrived at a absolutely wrong and erroneous findings causing grave injustice to the appellant. 10. The Court below ought to have given the benefit of doubt to the accused on the basis of circumstantial evidence and particularly where there is no eye witness of the incident except PW-15 and she does not explain any reason for such incident. Mr. Majumder, learned counsel has further contended that the Court below passed the impugned judgment and order of conviction and sentence on the basis of surmise and conjecture. There is no solid evidence to prove against the accused-appellant. 11. He has further argued that the Court below ought to have considered that the scribe was not examined. PW-1 being the complainant does not disclose from whom he got the telephonic information. All most all the witnesses are hearsay witness. None of the witnesses ever whispered anything against the appellant. All the above witness cited as hearsay witness. 12. The trial Court ought to have considered that except PW-15, there cannot be said as trust worthy witnesses, moreover, none of the witnesses saw the alleged occurrence and therefore, on the basis of the sole witness, the impugned judgment and order of conviction was passed which cannot be accepted. The Court below ought to have considered the deposition of PW-1 who in cross examination stated that the matrimonial relationship of his elder sister i.e. the deceased was cordial. The Court below ought to have considered the deposition of PW-1 who in cross examination stated that the matrimonial relationship of his elder sister i.e. the deceased was cordial. PW-3 son of the deceased in his cross stated that the relation between his parents was cordial and therefore, the impugned order of conviction and sentence and the findings of guilt of the appellant based on no evidence whatsoever and is wholly based on surmise and conjecture as such, cannot be sustained in law. 13. Mr. Majumder, learned counsel further contended that the Court below failed to appreciate that the PWs whose evidence was relied were mostly close relatives of the informant and as such highly interested and partisan witnesses and moreover, they had contradicted one another and all those witnesses were hearsay and could not form the basis for conviction and consequently, there was no scope for holding that the charge under Section-302 of IPC was proved against the appellant. 14. With the above factual matrix in prosecution case, the sole point for consideration is whether the convict-appellant has committed murder of his wife. Let us relook into the vital aspects of the present case by rereading the evidence of the witnesses once again. 15. PW-1, Shri Manik Lal Jhara in his evidence stated that accused Kishore Jhara was husband of his elder sister Gunamani Jhara and about one year ago one evening he got telephonic information that his said sister was killed by her husband in her matrimonial house at Lankapura and after killing her sister accused Kishore Jhara absconded then PW-1 rushed to the house of his elder sister and found her dead body lying in the courtyard. PW-1 also deposed that he came to learn that the accused in the evening brutally killed his elder sister by giving arbitrarily blows by dao and stating this fact he lodged an ejahar and one Priyatosh Debbarma has written the ejahar on which put his signature (Exhibit-1) and filed the ejahar before the officer in-charge of Khowai police station. He again stated that police officer has prepared surathal report over dead body of his elder sister and put his signature(Exhibit-2) on the surathal report. 16. He again stated that police officer has prepared surathal report over dead body of his elder sister and put his signature(Exhibit-2) on the surathal report. 16. PW-2, Shri Sanjit Jhara in his evidence stated that accused Kishore Jhara is his elder brother and Gunamani Jhara was his (accused) wife and about one year back on return home on completion of works as labourer he found Gunamani Jhara lying dead in the courtyard and heard from the people that her husband i.e. accused Kishore Jhara killed her. 17. PW-3, Smt. Sonali Jhara in her evidence stated that accused Kishore Jhara is her father and about one year back on arrival in the house after playing with her friends she found her mother lying dead with bloodstain injuries and also found gathering in the house and from gathering she came to know that her father has killed her mother. 18. PW-4, Shri Dhanilal Jhara and PW-5, Shri Sanulal Jhara in their evidence stated that Gunamani Jhara was their elder sister and about one year ago they heard that their sister Gunamani Jhara was killed by her husband accused Kishore Jhara. PW-4 again stated that his said sister was killed by arbitrary blows of dao by her husband accused Kishore Jhara. 19. PW-6, Shri Charan Rupini and PW-7, Shri Budhurai Debbarma in their evidence stated that on 25.3.13, S.I. of Police Mr. L.L. Darlong seized wearing apparels of the deceased Gunamani Jhara at Khowai Sub-divisional Hospital after post-mortem examination under seizure list and their signatures in the seizure list are marked Exhibit-3 and Exhibit-4. 20. PW-11, Dr. Sabyasachi Nath, scientific officer-cum-examining officer of SFSL, Narsingarh, in his evidence stated that on 10.5.13 he received two exhibits in connection with Khowai P.S case No. 39 of 2013 dated 24.3.2013 under section 302 of IPC and those are (1) Exhibit-A contained one metal dao with wooden handle said to be seized from the place of occurrence and (2) Exhibit-B are three pieces of cloth said to be wearing apparel of deceased and subsequently those are marked as B-1, B-2 and B-3. On examination he could detect blood stain of human origin on Exhibit-A, B-1, B-2 and B-3 and submitted report (Exhibit-5). 21. PW-15, Smti. On examination he could detect blood stain of human origin on Exhibit-A, B-1, B-2 and B-3 and submitted report (Exhibit-5). 21. PW-15, Smti. Bada Laxmi Jhara in her evidence stated that one day about two years ago about 5 p.m. her neighbour accused Kishore Jhara has killed his wife Gunamani Jhara by giving blows on her head and hand. She has seen accused Kishore Jhara to give blows on his wife and she advanced to save his wife but accused Kishore Jhara pushed her and also assaulted her by slapping. PW-15 also deposed that the wife of the accused, Gunamani Jhara ran from her house and behind her, accused Kishore Jhara also came on running in front of her kitchen and gave blows by dao on her, as a result, Gunamani Jhara died on spot and after giving blows accused Kishore Jhara left her (PW-15) house leaving dao in her house premises then on that day daroga babu came and seized the dao under seizure list on which she put her thumb impression and identified the seized dao (Exhibit. MO-1). 22. PW-14, S.I. Mr. Lazarus Lalhmudika Darlong in his evidence stated that on 24.3.2013 he was entrusted to investigate the case by officer in-charge of Khowai P.S. and in course of investigation visited place of occurrence, prepared hand sketch map with separate index of place of occurrence(Exhibit-7 & Exhibit-7/1), recorded statements of twelve witnesses under section 161 Cr.P.C., seized one dao under seizure list(Exhibit- 8), prepared dead body challan of the deceased (Exhibit-9), seized the wearing apparel of the deceased under seizure list(Exhibit-3/1), and also identified the seized dao(Exhibit. MO-1) and thereafter on completion of investigation submitted charge sheet against the accused Kishore Jhara under section 302 IPC. 23. Learned counsel Mr. Majumder appearing for the appellant has submitted that in the present case prosecution claimed PW-15 as eye witness of the occurrence but her evidence is not sufficient to prove the charge against the appellant since there are improvements in the evidence of PW-15 which created doubt and her evidence is not supported by the evidence of any other witnesses of the prosecution, as such relying on her evidence which is neither believable nor trustworthy and based on her evidence the charge against the appellant has not been proved beyond shadow of reasonable doubt. He again submitted that motive of the accused to kill his wife is not proved by the prosecution, so the accused is entitled to get acquittal from the charge leveled against him. 24. On careful examination of evidence on record it is clearly revealed that PW-15, Smt. Badalakshmi Jhara is the only eye witness of the occurrence, so the question arises whether the evidence of solitary eye witness (PW-15) is truthful, dependable and trustworthy in inspiring the confidence of the court for proving the charge of murder of Gunamani Jhara by her husband accused Kishore Jhara. Section-134 of the Indian Evidence Act has given green signals to the court to place reliance and hold the accused guilty on the solitary testimony of a witness provided the evidence is found to be trustworthy and above board. Said section provides that no particular number of witnesses shall in any case be required for the proof of any fact. In other words the law requires that evidence has to be weighed and not counted. Plurality of evidence is only a rule of prudence and not an inflexible requirement, the evidence has to be weighed and not counted. Evidence of one witness, if believed, is sufficient to establish any fact to which the witness speaks directly. When the prosecution case rests mainly sole testimony of eye witness which should be wholly reliable and conviction can be recorded on the basis of a single eye-witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court is convinced that he is truthful witness. The evidentiary value of a related witness was decided by the Hon'ble Supreme Court way back in 1953 in Dalip Singh v. The State of Punjab, AIR 1953 SC 364 (1953 Cri L.J. 1465), which has been later on followed in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 (1957 Cri LJ 1000) and Guli Chand v. State of Rajasthan ( (1974) 3 SCC 698 ) ( AIR 1974 SC 276 : 1974 Cri LJ 331). The settled principle now is that a witness is normally considered to be independent unless he or she springs from sources which are likely to be tainted and that usually means that unless the witness has a cause, such as enmity against the accused, to wish to implicate him falsely. The settled principle now is that a witness is normally considered to be independent unless he or she springs from sources which are likely to be tainted and that usually means that unless the witness has a cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person'. While appreciating the evidence of the solitary eye-witness, the Court has to consider the objective circumstances of the case taken together as an anvil. In order to test the trustworthiness of the solitary witness, his evidence should be placed or tested with the anvil of the objective circumstances. If the objective circumstances support the evidence of the solitary eye-witness, then it is duty of the Court to record the finding of guilt otherwise not.' 25. In case of Kunju alias Balachandran v. State of Tamilnadu reported in AIR 2008 SC 1381 , Hon'ble Apex Court viewed under para 8 and 9 of the judgment thus:- '8. In Vadivelu Thevar v. State of Madras ( AIR 1957 SC 614 ) this court had gone into this controversy and divided the nature of witness in three categories, namely, wholly reliable, wholly unreliable and lastly, neither wholly reliable nor wholly unreliable. In the case of the first two categories this Court said that they pose little difficulty but in the case of the third category of witnesses, corroboration would be required. The relevant portion is quoted as under: (AIR P. 619, paras 11-12): 'Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interested-ness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. 9. Vadivelu Thevar case (supra) was referred to with approval in the case of Jagdish Prasad v State of M.P. ( AIR 1994 SC 1251 ). This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'). But, if there are doubts about the testimony the Courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise.' 26. Considering the evidence on record and the principles laid down in above case laws by Hon'ble Apex Court we have examined the evidence of the prosecution witnesses particularly the testimony of PW-15 who was only eye witness of the occurrence and whether her evidence is found truthful, believable and trustworthy for proving the guilt of the accused in connection with murder of his wife. Whether corroboration of a single witness is or is not necessary must depend upon the facts and circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused on such proof. If such testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused on such proof. Even as the guilt of an accused may be proved by the testimony of a single witness, the innocence of an accused may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. So the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. Situation may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. 27. In criminal case FIR is not the last word. In some cases detailed FIR can be ground for suspicion. What is relevant to find out whether the FIR was lodged directly and whether it is actually by mala fide. The record of this case indicated that FIR regarding gruesome murder of Gunamani Jhara by her husband accused Kishore Jhara was filed promptly and without any noticeable delay by her brother Manik Lal Jhara when the police officer came to the house of the accused in the evening on the day of occurrence and therefore, false implication of the accused in the present case cannot be accepted. Moreover, there is nothing on record to show that FIR is the result of deliberation of informant with other persons as the FIR was lodged promptly by Maniklal Jhara. 28. It is fact that prosecution has not proved the motive of the accused for killing of his wife. On examination of the evidence on record we find that no clear motive of the accused for killing his wife is established by the prosecution evidence. It is almost impossible for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. On examination of the evidence on record we find that no clear motive of the accused for killing his wife is established by the prosecution evidence. It is almost impossible for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. After all motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant. 29. In case of Suresh Chandra Bahari v. State of Bihar, with Gurbachan Singh, v. State of Bihar, and Rajpaul Sharma v. State of Bihar, 1994 Cri.L.J. 3271, the Hon'ble Apex Court held that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime. 30. In view of above long discussion we are of the opinion that the evidence of the solitary eye witness, PW-15 is found believable and trustworthy since her evidence is supported by the medical evidence and post-mortem report and also other circumstantial evidence as discussed above. 30. In view of above long discussion we are of the opinion that the evidence of the solitary eye witness, PW-15 is found believable and trustworthy since her evidence is supported by the medical evidence and post-mortem report and also other circumstantial evidence as discussed above. So her testimony has inspired confidence of this court and, therefore, we are of the firm opinion that the prosecution has successfully proved the charge levelled against the accused Kishore Jhara and in the circumstances of the case no other inference can be drawn except the guilt of the accused for killing of his wife, so the accused is found guilty for commission of an offence under Section-302 of IPC. The prosecution has successfully established the case beyond reasonable doubt. Thus, we find that the appellant Uttam Sarkar is guilty for the commission of offence punishable under Section-302 of the Indian Penal Code. 31. In our ultimate analysis and having regard to the evidences on record, it is crystal clear that there is no reason as to why the continuity of the chain of evidences and the complaint made against the accused-appellant to be disbelieved. All the witnesses supported the entire case with regard to the commission of offence by the accused-person. Hence, the conviction and sentence as held by the learned Addl. Sessions Judge, in connection with case No. S.T. 10(T-1) of 2014 against the present appellant, stands affirmed. 32. For the reasons stated above, we are of the opinion that there is no infirmity in the findings arrived at by the learned Addl. Sessions Judge, Khowai while convicting and sentencing the accused-appellant. Accordingly, the judgment and order of conviction and sentence as declared by learned Addl. Sessions Judge, stands affirmed and upheld. Thus, the present appeal preferred by the convict-appellant is dismissed. As a sequel, miscellaneous applications pending, if any, shall stand closed. Send down the LCRs forthwith.