High Court
Case Details
Criminal Appeal (D.B.) No. 958 of 2018 [Arising out of judgment of conviction dated 24.05.2018 and order of sentence dated 30.05.2018 passed by learned Sessions Judge, Palamau at Daltonganj in Sessions Trial No.317 of 2014] Ashok Singh age about 30 years son of Bahadur Singh, resident of Village Sarauna, P.O. & P.S. Bishrampur, District Palamau .... .... …. Appellant --Versus-- State of Jharkhand …. …. …. Respondent With Criminal Appeal (D.B.) No. 685 of 2018 [Arising out of judgment of conviction dated 24.05.2018 and order of sentence dated 30.05.2018 passed by learned Sessions Judge, Palamau at Daltonganj in Sessions Trial No.317A of 2014] Shradha Kumari @ Shradha Devi, age about 22 years, daughter of Late Bijay Singh and wife of Pappu Kumar Singh, resident of Mauza Kanda, P.O. & P.S. Nawa Bazar, District Palamau, Jharkhand --Versus-- The State of Jharkhand …. …. …. Respondent .... .... …. Appellant For the Appellant : Mr. Sanjay Kumar, Advocate [In Criminal Appeal (D.B.) No. 958 of 2018 ] Mr. Sheo Kumar Singh, Advocate [In Criminal Appeal (D.B.) No. 685 of 2018 ] For the State
Legal Reasoning
: Mr. Pankaj Kumar, P.P. Mr. Bhola Nath Ojha, A.P.P. ----- PRESENT: SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J. ----- JUDGMENT Reserved on: 08.07.2024 Pronounced On: 22.07.2024 Per Gautam Kumar Choudhary, J. Both these criminal appeals arise out of separate judgment of conviction and sentence by which appellants Ashok Singh and Shradha Kumari @ Shradha Devi have been separately convicted and sentenced under Section 302/34 of the Indian Penal Code in Sessions Trial No.317 of 2014 and Sessions Trial No.317A of 2014. 2. Since both these sessions cases arise out of Bishrampur P.S. Case No.31 of 2014 in which both the appellants were accused under Section 302/34 of the IPC therefore, they are heard together and will be disposed by the common Judgment. 1 3. After investigation, charge sheet was submitted against co- accused Ashok Singh while keeping investigation pending against Shradha Kumari @ Shradha Devi. After completion of investigation against her, a closure report was submitted showing the case was not true against her. 4. After cognizance and commitment, Ashok Singh was put on trial in Sessions Trial No.317 of 2014 under Sections 302/34 of the IPC. At the fag end of trial on a petition under Section 319 of the Code of Criminal Procedure, Shradha Kumari @ Shradha Devi was summoned to face trial. Her case was split up from Ashok Singh and she was put on trial for offence under Section 302/34 of the IPC and was convicted by separate judgment of conviction on 24th May, 2018 and on the same day in Sessions Trial No.317 of 2014, appellant-Ashok Singh has also been convicted. 5. Informant of the case is Surajmal Mahto, father of the deceased whose fardbeyan was recorded on 28.03.2014 is the basis of the case. As per the FIR, informant had taken his wife for traditional treatment to the house of Gosai Singh in village Kanda along with his elder son Birendra Mehta at about 7 p.m. At about 9.30 p.m., his son Birendra Mehta was called by Ashok Singh and Shradha Kumari @ Shradha Devi. When he did not return, the informant went where he heard cries of his son that the appellant – Ashok Singh was killing him. He rushed towards the place of occurrence and saw that Ashok Singh was stabbing him with Balua (sharp cutting weapon) as a result, he sustained fatal injury and died of it. On the approach of the informant accused fled away. 6. The granddaughter of Gosai Singh – Shradha Kumari @ Shradha Devi had illicit relationship with Ashok Singh which was opposed by Birendra Mehta, which was the motive for committing the offence. 7. In Sessions Trial No.317 of 2014 altogether thirteen witnesses were examined and relevant documents including FIR, post-mortem report, were adduced into evidence and marked as Exhibit 1 – 5. 8. Out of 13 prosecution witnesses, P.W.6 – Dinanath Vishwakarma, P.W. 9 – Ganesh Prasad Gupta, P.W. 10 – Puneshwar Sao, P.W. 11 – Chandramohan Sao and P.W. 12 – Vishwanath Sahu @ Vishwamitra Sao have not at all supported the prosecution case and were declared hostile. 9. Prosecution case rests on the testimony of P.W. 7 – Suryamal 2 Mahto, who is the father of the deceased and informant of the case, who has deposed that he had gone to the house of Gosai Singh along with his wife Sushila Devi and deceased Birendra Mehta for conventional treatment. Ashok Singh and Shradha Kumari took his son outside on the pretext of having a cup of tea. After some time, he came outside looking for his son, he heard cries of his son and went there. He saw that Shradha Kumari had caught leg of his son and Ashok Singh was assaulting him with Balua. On their approach, both of them fled away. 10. P.W. 1 – Sushila Devi claimed to be an eye witness and has deposed that she along with her husband and son had gone to the house of Gosai Singh for her traditional treatment. Ashok Singh and Shradha Kumari called her son to come outside and for half hour when he did not return, then her husband heard cries of his son and went there. She claimed herself to be the eye witness to the incidence, but from the FIR as well as from the deposition of her husband who is informant of this case (P.W. 7), we do not find that this witness had accompanied the informant to the place of occurrence where the deceased was done to death by Ashok Singh. FIR is absolutely silent that she had accompanied to the place of occurrence. Her testimony cannot therefore be relied upon. 11. P.W. 2 also claimed himself to be the direct eye witness, his attention was drawn in the cross-examination in para 8 that at the time of incidence, he was in brick kiln. It has been deposed that Ashok Singh has been assaulting Birendra Mehta while Shradha Kumari had caught hold him. The testimony of this witness does not inspired confidence as the informant has not testified about his presecnce at the place of occurrence. 12. P.W. 3-Surya Nath Mahto is not the eye witness to the incidence and has deposed that he came to the place of occurrence after the incidence and saw the dead body of Birendra. 13. P.W. 4 is other eye witness, who has corroborated the testimony of the informant and other witness regarding the factum of incidence. 14. Homicidal death of deceased-Birendra Mehta is not in doubt as the cause of death in the post-mortem examination report has been stated to be caused by injury no.1. Following injuries were found on the body of deceased:- 3 I. Incised wound over left side of the neck of the size 6 cm X 3 cm X bone deep, cutting neck skin, neck muscle, neck vessels and wind pipe. II. Incised wound over upper part of skull of the size 4 cm X 1 cm X bone deep. III. Incised wound over left side of skull above injury no.2 of the size 3 cm X 1 cm X bone deep. 15. Although the testimony of witnesses have been separately recorded in Sessions Trial No.317A of 2014 in which Shradha Kumari was put on trial, but almost identical evidence has been led against her. 16. Out of 13 prosecution witnesses, P.W. 1, P.W. 2, P.W. 4, P.W. 9 and P.W. 10 have not supported the prosecution case and were declared hostile. P.W. 8 and P.W. 11 are not eye witness and the prosecution case rests on the testimony of P.W. 3 – Sushila Devi (mother of the deceased), P.W. 5 – Mahendra Mahto, P.W. 6 – Binod Mahto and the informant P.W. 7 – Suryamal Mahto. 17. The informant – P.W. 7 has deposed that on the pretext of having a cup of tea, the appellant-Ashok Singh and Shradha Kumari had taken his son outside and when he went outside, he heard cries of his son and when arrived at the place of occurrence, he saw that Ashok Singh was inflicting Balua blow to the deceased and Shradha Kumari was holding his legs. P.W. 6 has corroborated the testimony of the informant and has deposed that Shradha Kumari was holding hip of the deceased. P.W. 5 also deposed on the same line. It is argued by the learned counsel on behalf of appellant – Shradha Kumari @ Shradha Devi that there was vital contradiction in the account of testimony of the witnesses regarding the manner of assault. 18. It is argued by the learned counsel in Criminal Appeal (D.B.) No. 685 of 2018 that closure report was submitted against this appellant, is not proved and was put on trial on being summoned under Section 319 of the Cr.P.C. 19. It is argued by the learned counsel on behalf of appellant that there are inconsistencies in the evidence of the prosecution. Some witnesses have stated that Shradha Kumari had caught hold the leg where some have stated that she had caught hip of the deceased. 20. Learned A.P.P. has defended the judgment of conviction and sentence. 21. There is bound to be minor inconsistencies and variations in 4 ocular account of an incidence witnessed by more than one persons. It is not all inconsistencies that can be said to be amount to contradiction so as to cast cloud on the veracity of the witness. Only when the contradictions are vital and go to the root of the matter, that prosecution version gets discredited so as to be held fatal. 22. There are four ways in which a trial court can hold a witness unreliable: I. The witnesses statements is inherently improbable or contrary to the course of nature II. The witnesses deposition contains mutually contradictory or inconsistent passages III. The witness is a bitter enemy of the opposite party and therefore, possesses ample motive for wishing him harm. IV. The witnesses demeanor at the time of examination is found abnormal or unsatisfactory. In assessing the value of the evidence of an eye-witness, the two principles considerations are:- I. Whether, in the circumstances of the case, it is possible to believe, his presence at the scene of occurrence. II. Whether there is anything inherently improbable or unreliable in his evidence. It is also an established principle of appreciation of evidence that a testimony without a fringe or embroidery of untruth is rare. The court can reject it only when it is tainted to the core, that is, where falsehood and truth are inextricably intertwined. If it is not so, the court must separate the grain from the chaff. 23. Every case has its own DNA and it does not match with others. Every case is uniquely distinct and therefore, evidence is to be appreciated in the background of the fact and circumstance of each case. It has been held in Lalliram & Another Versus State of M.P., (2008) 10 SCC 69 “As rightly contended by learned counsel for the appellants, a decision has to be considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence.” (Emphasis supplied) 24. As per prosecution case events unfolds in two stages. First is 5 when the accused Ashok Singh and Shradha Kumari took the deceased from the house of Gosai Singh on the pretext of offering him tea. Second is after taking deceased Birendra Mehta out to some distance he was hacked to death by Ashok Singh in which Shradha Kumari caught hold the deceased. 25. On the first circumstance, the informant and his wife are the natural witness as they had been accompanied by their son to the house of Gosai Singh for some kind of treatment by sorcery. Both have deposed that it was Ashok Singh and Shradha Kumari, who had called and taken him with them. 26. On the second circumstance, the testimony of the informant has been duly corroborated by his statement recorded by the police which is the FIR of the case in terms of Section 156 of the Evidence Act. He has deposed that when he went to the place of occurrence, he saw Ashok Singh was assaulting his son with Balua and Shradha Kumari had caught hold of him. His wife Sushila Devi has corroborated the testimony of her husband (P.W. 7) and has stated in the cross examination that she and her husband were first to reach the place of occurrence. 27. Both these witnesses have deposed that they were the first to reach the place of occurrence and on their approach the accused persons fled away. Thus, the statement of other witnesses claiming to be eye witness, cannot be accepted. 28. On combined reading of testimony of these witnesses, against the back drop of the facts and circumstance of the case, there cannot be any reasonable basis to doubt the veracity of these two witnesses. Appellant – Ashok Singh was paramour of Shradha Kumari, who wanted to marry her which was opposed by the deceased Birendra Mehta. 29. The first circumstance, as discussed above, and proved by the eye witnesses, is itself sufficient to bring home the charge against the accused. On the fateful night, both Ashok Singh and Shradha Kumari took the deceased along with them and only after a while, he was hacked to death. Without proving anything further, this would have been sufficient to prove the charge on the basis of the theory of last seen as there was proximity between the time when the appellants were seen leaving with the deceased. No explanation has been offered by the accused persons regarding the homicidal death of the 6 deceased who had gone with them short while ago. Mohibur Rahman & Another Versus State of Assam, (2002) 6 SCC 715 “10. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.” 30. Furthermore, apart from the above incriminating circumstance, there is also direct evidence of the parents of the deceased as discussed above regarding the manner of commission of offence. 31. It is evident that this is a case of committing cold blooded murder in a concerted and in a preplanned manner where both the appellants had come and taken the deceased on the pretext of offering him tea, and then he was hacked to death. Judgment of conviction and sentence is affirmed. Both the Criminal Appeal stands dismissed. Per Ananda Sen, J. I agree. (Gautam Kumar Choudhary, J.) (Ananda Sen, J.) High Court of Jharkhand, Ranchi Dated, 22nd July, 2024 AFR/Anit 7