High Court
Case Details
Criminal Appeal (D.B.) No. 2043 of 2017 [Arising out of judgment of conviction dated 23.08.2017 and order of sentence dated 30.08.2017 passed by learned Additional Sessions Judge, Simdega in Sessions Trial No. 162 of 2016] Chonhas Lakra son of Kusal Lakra resident of Village Chiyari Kani, P.O. & P.S. Simdega, District Simdega --Versus-- The State of Jharkhand …. …. …. Respondent .... …. Appellant .... For the Appellant For the State : Mr. Binod Singh, Advocate : Mr. Shailendra Kumar Tiwari, Special P.P. ----- PRESENT: SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J. ----- JUDGMENT Reserved on: 16.10.2024 Pronounced On: 22.10.2024 Per Gautam Kumar Choudhary, J. Sole appellant is before this Court against the judgment of conviction and sentence under Sections 302 and 201 of the Indian Penal Code and Sections 3/4 of Prevention of Witch (Daain) Practices Act. 2.
Legal Reasoning
Informant of the case is the husband of the deceased. As per the FIR, his wife Silwanti Lakra had gone to the forest to collect Mahua flower, but did not return home till evening. The informant went to the forest searching for his wife, but got no trace of her. Next day at 5 a.m., he again searched for her with the villagers and during course of search, found the dead body lying under a stone. The incidence was informed to the Mukhiya of his village, Binita Kullu and the police station as well. The informant suspected that his wife has been killed by his younger brother, who branded her as Daain believing that she was responsible for the death of his two children and so he had threatened to kill her. 3. On the basis of the fardbeyan, Simdega Mufassil P.S. Case No.06/16 was registered under Sections 302 and 201 of the IPC and Sections 3/4 of Prevention of Witch (Daain) Practices Act. After investigation, charge sheet was submitted and the appellant was put on trial under the aforesaid Sections. 4. Altogether eight witnesses have been examined on behalf of prosecution. Apart from this, relevant documents including post-mortem report have been adduced into evidence and marked as Exhibit 1 – 9 and one iron Tangi has been marked as Material Exhibit I. 1 5.
Legal Reasoning
It is argued by the learned counsel on behalf of the appellant that out of four material witnesses, two (P.W. 1 and P.W. 3) have turned hostile and not at all supported the prosecution case. Prosecution case hinges on the testimony of P.W. 2 (informant), who is the husband of the deceased, P.W. 6 (mother-in-law)) and P.W. 7 (father-in-law), who is of the brother of the informant. It is argued that confession leading to recovery is not established, as the seizure list witnesses P.W. 6 has deposed that Tangi was not recovered in her presence. Furthermore, medical evidence does not support the ocular evidences that injury was inflicted by sharp edged weapon as no such injury was found on the dead body. 6. Learned counsel on behalf of State has defended the judgment of conviction and sentence. 7. FIR in this case has been lodged without any delay day after the incidence. Informant (P.W. 2) has deposed that the appellant who happens to be his younger brother, had committed the murder of his wife, who had gone to pick-up Mahua in the forest area on 07.06.2016 and did not return thereafter. A frantic search was made by the informant and the villagers found the dead body concealed under stone on the next morning at 5 O’ clock. Informant suspected that the appellant had committed the offence as he used to attribute the cause of death of his two sons on witch craft having been practiced by the deceased. In his cross-examination, he has deposed that one son of the appellant had earlier died about two years and another about seven years ago. After the death of his second son, he had picked-up a quarrel with them. The testimony of this witness stands corroborated by the FIR and there is nothing on record to disbelieve his account. P.W. 6, is a 70 years old lady, who happened to be the mother-in-law of the deceased. She has deposed that appellant confessed of his guilt wherein he has stated that he committed the murder suspecting her to be a witch. In her cross-examination, she has admitted that confession was not made before her, but was made before the police. P.W. 7 is also a 60 years old man, who also happens to be the father-in- law of the deceased. He also stated that deceased had gone to forest, but did not return thereafter and on the next morning, her dead body was found by the villagers. It was appellant, who used to identify the deceased as a witch. 2 Homicidal death of the deceased is not in doubt. Autopsy Surgeon (P.W. 5, who conducted the post-mortem examination, found the following injuries: - External Examination: - I. Several lacerated injury on face involving nose, cheek, chin and forehead causing disfiguration of face with multiple fracture of nasal bone. II. Lacerated wound 2" x ½" over back of head. As per the post-mortem examination report (Exhibit 3), cause of death was head injury leading to shock and cardio respiratory failure. 8. Testimony of the witnesses regarding the recovery of the dead body, has been corroborated by the Investigating Officer (P.W. 8), who has proved the inquest report (Exhibit 4). The place of recovery of the dead body was in a deep forest area concealed under stone. 9. The Investigating Officer has formally proved the confessional statement which has been marked as Exhibit 5. He has not stated anything about the recovery of axe having been made on the basis disclosure statement. In his cross-examination, he has admitted that the seizure list was not scribed by him. As per the seizure list, a Tangi was seized in the presence of the appellant and two seizure list witnesses and the said weapon was sent for FSL examination. According to report, on serological examination, human blood was found on the Tangi. None of the witness either P.W. 7 or P.W. 8, have stated that the Tangi was recovered from the house of the appellant. 10. There is no direct eye witness to the occurrence and the case is based on circumstantial evidence. There is no evidence of last seen. It is not disputed that the deceased has died a homicidal death and her dead body was found in a remote Jungle area concealed under stone, but there is no substantive evidence of the confessional statement having been made or the recovery effected on the disclosure statement of the appellant. Even the Investigating Officer has not deposed that confessional statement was made before him and the recovery of weapon of offence was done on the disclosure statement. Mere formal proof of confessional statement, is not sufficient, unless the Investigating Officer narrates the sequence of events in which the recovery is made on the disclosure statement. In the absence of direct evidence of disclosure following recovery, mere formal proof of the confessional statement and seizure list shall not be sufficient to rely on it so as to invoke Section 27 of the Evidence Act against 3 the appellant. 11. Leaving aside the disclosure statement and recovery of Tangi, the only legal evidence regarding commission of offence by the appellant, is the extra judicial confession which is also a very weak piece of evidence. It has been held in Kalinga v. State of Karnataka, (2024) 4 SCC 735 “28. The principles concerning circumstantial evidence are fairly settled and are generally referred as the “Panchsheel” principles. Essentially, circumstantial evidence comes into picture when there is absence of direct evidence. For proving a case on the basis of circumstantial evidence, it must be established that the chain of circumstances is complete. It must also be established that the chain of circumstances is consistent with the only conclusion of guilt. The margin of error in a case based on circumstantial evidence is minimal. For, the chain of circumstantial evidence is essentially meant to enable the court in drawing an inference. The task of fixing criminal liability upon a person on the strength of an inference must be approached with abundant caution”. Under the circumstance and for the reasons discussed above, the appellant is entitled to benefit of doubt. Judgment of conviction and sentence is not sustainable and is accordingly set aside. Criminal Appeal is allowed.
Decision
Pending Interlocutory Application, if any, is disposed of. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment. (Gautam Kumar Choudhary, J.) (Ananda Sen, J.) Ananda Sen, J. I agree. High Court of Jharkhand, Ranchi Dated, 22nd October, 2024 AFR/Anit 4