The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No.681 of 2019 (Against the Judgment of conviction dated 09.03.2017 and order of sentence dated 10.03.2017, passed by learned Sessions Judge, West Singhbhum at Chaibasa, in Sessions Trial No.33 of 2016 [arising out of Gua P.S. Case No.33 of 2015 & G.R. Case No.545 of 2015]. Sanjay Diggi, S/o Sri Kanuram Diggi, Resident of Village- Nuiya, Tola :- Lauwa, P.O. & P.S. Gua, District :- West Singhbhum Versus …Appellant The State of Jharkhand. ….. …Respondent P R E S E N T SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J. ….. For the Appellant For the State : : Md. Imran Beig, Amicus Curiae Mr. Shiv Kumar Sharma, APP ….. By Court:- Heard learned counsel for the appellant and learned counsel for the State. 1. It has been brought to the notice of this Court that the sole counsel on record,
Legal Reasoning
appellant who has committed murder. Thus, on this point, we find that P.W.3 is not reliable as if at all any statement was given by mother of the appellant, the same was given to P.W.2 and P.W.2 never stated that the mother of the appellant had disclosed before him that it is the appellant who has committed murder. Further, from the evidence of these two witnesses, it is clear that the appellant was not present in the house. 16. Further, we find that there is injury on the head of the deceased and there was only one injury which is apparent from the post-mortem report, but what was the 4 murder weapon has not been disclosed by the prosecution, In the FIR, it has been mentioned that the informant got an information that the deceased was assaulted by an axe and the said information was narrated to him by some villagers. But surprisingly from the evidence of the Doctor, we find that the injury was not caused by any sharp-cutting weapon rather it was caused by hard and blunt substance and the same can only be possible because of fall from height. The I.O. in his statement stated that the appellant was arrested and he confessed his guilt that he has murdered the deceased with an axe, but he also tried to search the axe, but the same was not recovered. Thus how the deceased had died has also not been established or substantiated by the prosecution. Thus, there is doubt about the murder weapon. 17. The motive which the prosecution has tried to establish is that the appellant was in talking term with a lady which was not liked by his wife/ deceased. Thus, there was matrimonial discord which resulted in bickering and quarrelling amongst them. This fact has not been substantiated or established by leading any evidence by the prosecution. The said statement remained as a bald allegation without any substance. As noted above, the mother of the appellant who disclosed the aforesaid fact before P.W.2 has also not been examined. 18. Further, the Learned Trial Court has taken shelter of Section 106 of the Evidence Act to convict the appellant. Section 106 of the Evidence Act cannot be the sole ground for convicting any accused, unless the foundational facts for shifting the burden on the defence is established. The prosecution first has to prove guilt of the appellant beyond all reasonable doubt then only additional circumstance(s), if the same is against the appellant can be used by taking shelter of Section 106 of the Evidence Act. 19. In this case, we find that the prosecution has not been able to prove the guilt of the appellant beyond shadow of all reasonable doubt as the witnesses have stated that the appellant was not present in the house. Neither the murder weapon was recovered nor the motive has been proved nor there is any eyewitness to the alleged occurrence. The best witness has been withheld by the prosecution. There is also doubt in the mind of this Court about the death of the deceased, whether it was accidental or homicidal.
Arguments
Mr. Pravin Kumar has unfortunately died during Covid-19, a pandemic. Considering the same, we appoint learned counsel, Md. Imran Beig as an Amicus Curiae. It be noted that learned counsel, Md. Imran Beig was attached with Late Pravin Kumar, learned counsel. 2. The instant Criminal appeal is directed against the Judgment of conviction dated 09.03.2017 and order of sentence dated 10.03.2017, passed by learned Sessions Judge, West Singhbhum at Chaibasa, in Sessions Trial No.33 of 2016 [arising out of Gua P.S. Case No.33 of 2015 & G.R. Case No.545 of 2015] whereby and whereunder the appellant has been convicted for the offence under Section 302 IPC and has been sentenced to undergo RI for life along with fine of Rs.10,000/- and in case of default in payment, to further undergo RI of one year. 3. The F.I.R. is at the instance of P.W. 2 (brother of the deceased) and it is alleged that the deceased (sister of the informant) was married with this appellant about a year back and was blessed with a female child. After marriage, there was marital discord between the appellant and the deceased. The informant on several occasions went to pacify them. On 24.09.2015 about 12:00 noon, the informant came to know from the villagers that his sister has been 1 4. 5. 6. 7. 8. murdered at about 8:00 am as she was assaulted by an axe. After receiving the same, he along with some villagers went to the matrimonial house of the deceased and found the deceased lying in front of the door and blood was also oozing out from head. There was no family member present in the house. The informant claims that due to domestic quarrel and bickering, the appellant has committed the murder of the deceased. On the basis of the aforesaid information, Gua P.S. Case No. 33 of 2015 was registered for the offence under Section 302 and 304(B) IPC. After investigation, the Police submitted charge-sheet for offence under these Sections and the appellant was put on trial for the said offence. In order to prove the case, altogether five witnesses have been examined by the prosecution who are P.W.1 (Prashant Champia), P.W. 2 (Turam Champia), P.W. 3 (Ravi Sawaiyan), P.W. 4 (Dr. Prince Pingua) and P.W. 5 S.I. (Ravindra Kumar Thakur). Apart from oral testimony of witnesses following documentary evidence has been adduced and marked as Exhibits which are as follows :- Written Report Ext-1 Ext-1/1Signature of Turam Champia (PW-2) on Written Report. Endorsement on Written Report. Ext-1/2 P.M. Report of deceased Sukmati Diggi. Ext-2 Formal F.I.R. Ext-3 Carbon copy of inquest report. Ext-4 The Trial court after considering all the evidences, has convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment of life with fine of Rs.10,000/-. Learned counsel for the appellant submits that there is no eye witness to the said occurrence. Though, it is case of the prosecution that Sukmati Diggi died in her matrimonial house, but no-one has seen the commission of offence. The mother of this appellant i.e. mother-in-law of the deceased was present in the house, and the same is evident from the evidence of prosecution witnesses, but surprisingly she was not produced by the prosecution, as a witness. She would have been the star witness in this case to prove the guilt of this appellant, but non- examination of the mother-in-law of the deceased is fatal for the prosecution. 2 9. It is further argued that the prosecution has tried to establish the motive that since there was matrimonial discord and the appellant was in regular touch with another woman, which was not liked by the deceased, the appellant had committed the murder of the deceased, but the aforesaid motive has not been proved and established by the prosecution. Further, none of the witness has stated that this appellant was present in the house rather there is consistent evidence that he was not present in the house and as per the statement recorded under Section 313 of the Cr.P.C., he also stated that he had gone to Gua to perform his duty. 10. Learned counsel appearing for the State has defended the impugned judgment of conviction and sentence and submits that deceased had died in the house of this appellant and it is for the appellant to explain as to how she died. The failure of the appellant to explain the same would lead to draw adverse inference against him. Further, the death is homicidal in nature is supported by the testimony of the Doctor. The witnesses have stated that the mother of this appellant had informed them about the marital discord. Thus, the motive has also been proved. On this ground, it has been submitted the instant Cr. Appeal (DB) needs no inference and be dismissed. 11. P.W. 4 is the Doctor, who conducted the post-mortem examination of the deceased and found the following external injuries :- (i) (ii) Rigor mortis fully present in all four limbs. Lacerated wound over occipital area back side, size about 5” x 2” x deep to cranial cavity. Blood and blood clot and brain matter present in wound bed. Cranial cavity present lacerated brain tissue and blood and blood clot and multiple fracture of occipital bone. He opined that time of death is more than 6 hours but within 36 hours and stated that the death is due to head injury caused by hard and blunt object and injury No. (ii) is sufficient to cause death in ordinary course of nature. He admitted in cross-examination that if a person falls from a reasonable height, such type of injury is possible. From the evidence of the Doctor, we come to the conclusion that death is not a natural death and the same may be homicidal or accidental also. 12. Now, we have to adjudge the role of the appellant in this case. Admittedly, the appellant is the husband of the deceased, but there is no eye witness to the said occurrence. P.W.1 is the uncle of the deceased, who stated that he along with others went to the house of this appellant after receiving telephonic 3 information that the deceased has been murdered by this appellant. They went there and saw the dead body of the deceased where 4- 6 ladies were present at the place of occurrence. Then thereafter, they went to the Police Station and the police arrived. In the cross-examination, nothing was extracted. 13. P.W. 2 is the informant, who stated that the deceased was married with this appellant and the appellant has committed the murder of the deceased. On receiving the said information when he reached the house of this appellant, the appellant was not present and the dead body of his sister was lying on the door-steps with head injury. The mother of this appellant narrated to him that both the husband and wife used to quarrel with each other. Cause of their frayed relationship was that appellant was in talking terms with some other woman which was not liked by his wife/ deceased. In cross-examination, he has narrated nothing much. 14. P.W. 3, is friend of P.W. 2, who stated that he along with the P.W. 2 went to the place of occurrence after receiving information about the death of the deceased where he saw the dead body of the deceased with head injury and this appellant was not present in the house as he fled away. He stated that the P.W. 2 had a talk with mother of the appellant who told that it is this appellant who had murdered the deceased and fled away. He also stated that because of one woman, the relationship between the appellant and the deceased was not cordial. In cross-examination, he stated nothing. 15. From the evidence of these two witnesses, we find that there is much discrepancy. P.W.2 had stated that the mother of the appellant told him that there was matrimonial discord. He never stated that the mother of the appellant disclosed before him that it is the appellant who had committed the murder, whereas P.W.3 deposed that mother of appellant told to P.W.2 that it is this
Decision
20. Under the circumstance, we hold that the prosecution has not been able to prove the guilt of the appellant beyond all reasonable doubt. Accordingly, the 5 impugned judgment of conviction and sentence is set aside. Learned Trial Court is directed to release the appellant forthwith if not warranted in any other case. 21. Accordingly, the instant appeal stands allowed. 22. The services rendered by learned Amicus Curiae is appreciated by this Court. I.A(s), if any, stands disposed of. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. (Ananda Sen, J.) (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated 24.09.2024. sandeep/Pawan 6