Jattu Pahan vs State of Jharkhand

Heard the parties.

This criminal appeal has been directed against the judgment of conviction and sentence dated 7.2.2004 and 9.2.2004 respectively passed by the Additional Sessions Judge, F.T.C. No. I, Gumal in Sessions Trial No. 170/2003 in connection with G.R. Case No. 70/2003 arising out of Palkot P.S. Case No. 12/2003 whereby the appellant has been held guilty for the offence punishable under Sections 302, 201 of the Indian Penal Code and sentence to undergo R.I. for life under Section 302 of the IPC and R.I. for five years under Section 201, IPC and both the sentences were directed to run concurrently.

The facts emerging from the written report lodged by Pushpa Devi (W.-11), wife of Kameshwar Choudhary is that on 27.1.2003 at about 10:00 a.m., Kameshwar Choudhary left home for going to village-Murkunda but did not return home. The informant thought that her husband might have stayed in that village but on the next day too, when Kameshwar Choudhary did not return, the informant made a search for her husband but could not succeed. On 1.2.2003, she could learn that her husband Kameshwar Choudhary with Jattu Pahan (appellant) had gone somewhere on 27.1.2003 and, therefore she went to the house of Jattu Pahan to know where-about of her husband. She found a bicycle belonging to deceased parked in the house of Jattu Pahan but appellant was not available. The informant suspecting murder of her husband at the hands of Jattu Pahan, lodged written report on 1.2.2003. On the basis of written report, Gumal (Palkot) P.S. Case No. 12/2003 under Sections 302, 201 of the Indian Penal Code against appellant Jattu Pahan was registered.

In course of investigation, Jattu Pahan was apprehended and he confessed his guilt. On the basis of confession made by appellant, dead body of Kameshwar Choudhary buried near Marda river bank was recovered. The slipper belonging to the deceased was also recovered. On interrogation wife of the appellant disclosed that her husband had admitted that he had killed Kameshwar Choudhary and took out Rs.500/- from his pocket and out of said sum of Rs.500/-, the appellant had given Rs.200/- to her. Out of said Rs.200/- she had spent Rs.50/- and balance Rs.150/- was given to the Police.

Confessional statement of the appellant was first recorded by Joseph Tete, Secretary of Gram Sabha of village-Marda and that has been proved and marked Ext.-5. The investigating officer has also recorded confessional statement of appellant (Ext.-9). After concluding evidence, charge-sheet was submitted and accordingly cognizance was taken against the appellant under Sections 302 and 201 of the Indian Penal Code and case was committed to the Court of Session and registered as S.T. No. 170/2003. Charges under Sections 302 and 201 of the Indian (sic) S.P. was present over there. Had it been so, it is not a case of confession leading to discovery and the statement of appellant so recorded in the shape of his confession is not admissible even under Section 27 of the Evidence Act.

Binod Choudhary (P.W.-2) is the brother of deceased and in order to corroborate the story cooked up by prosecution, he has stated that he had seen the appellant and deceased Kameshwar Choudhary going towards Mela (fair). Needless to mention, this fact was not supported by any of the witnesses, even in the so called confessional statement (Exts.-5 and 9) this fact does not appear.

It is submitted that identity of the deceased is also doubtful. No family members of Kameshwar Choudhary has signed the inquest report or the post-mortem report to prove that he or she identify the deaed body of Kameshwar Choudhary. Admitted case of the prosecution is that Kameshwar Choudhary disappeared from 27.1.2013 and dead body was exhumed on 2.2.2003 from Marda river bank and according to opinion of doctor, death had occurred 5-6 days prior to the date of post-mortem examination. In such a situation, dead body was not identifiable. The learned Trial Judge has erred in holding the appellant guilty for the offence alleged.

Learned APP has opposed the arguments and submitted that thirteen witnesses have been examined and except P.W.-10, all have supported the prosecution case. The bicycle of deceased was recovered from house of the appellant, stolen money from possession of deceased given by the appellant to his wife was also produced and seized, the appellant has confessed his guilt before members of Gram Sabha and other villagers and that confession was duly proved (Ext.-5) and that is admissible. Further confession of the appellant was recorded by the Posice (Ext.-9) and on the basis of that confession, dead body of Kameshwary Choudhary was recovered from Marda river bank. The prosecution has proved post-mortem report, seizure list, inquest report, confessional statement leading to recovery and the learned Trial Judge has rightly held the appellant guilty.

We have carefully examined the case record, perused the evidence and documents and gone through the impugned judgment of conviction and sentence. Admittedly the prosecution case is mainly based on confession of the appellant (Ext.-5) first recorded by Joseph Tete, Secretary of Marda Gram Sabha. The second confession (Ext.-9) was recorded by police and according to prosecution, dead body of Kameshwar Choudhary was exhumed from Marda river bank on the basis of confession made by the appellant. Now we have to consider whether these two confessions are genuine, given voluntarily and leading to discovery of dead body of Kameshwar Choudhary Joseph Tete (P.W.-9) in his cross-examination has admitted that what was recorded in Ext.-5, that was recorded at the instance of S.P. and dictation given by Daroga (Police Officer). Jattu Pahan (appellant) did not sign in his presence rather aforesaid register containing Ext.-5 was taken by the Police and it was not returned to him. It also appears from the statement of said P.W.-9 that dead body was already recovered by that time. S.P. Gumla was present near Marda river bank when dead body of Kameshwar Choudhary was recovered. Joseph Tete is an independent witness and he is not simply a villager rather he was holding a responsible post of Secretary, Gram Sabha. Very independently he has deposed that confession was recorded at the instance of S.P. and what was written that was written at the dictation of Police Officer (Daroga).

We have perused Ext.-5 and it appears that it is not even in the handwriting of Joseph Tete because signature has been done in Hindi and statement has also been recorded in Hindi and both the writings does not tally with each other. Furthermore, if the dead body is recovered, then question of confession leading to recovery does not arise and that is not admissible under section 27 of the Evidence Act. If any confession was recorded in presence of villagers, then what was the need of recording further confessional statement by the Police (Ext.-9). We are not ready to accept that dead body of Kameshwary Choudhary was recovered either on the basis of Ext.-5 or Ext.-9. If it is rejected, Ext.-5 and Ext.9 are not admissible under Section 27 of the Evidence Act. In absence of examination of Surji Khadian, the evidence of hearsay witnesses that deceased had gone to the house of Jattu Pahan, cannot be accepted.

The circumastantial evidence brought on record are not sufficient to complete the chain to point towards guilt of the appellant excluding all hypothesis of his innocence. The investigation done by the Police does not appear to be fair and impartial.

Considering all these aspects of the matter, we feel inclined to allow this appeal and accordingly, the judgment of conviction and sentence dated 7.2.2004 and 9.2.2004 respectively passed by the Additional District and Sessions Judge, F.T.C. No. I, Gumla in Sessions Trial No. 170/2003 is hereby set aside. The appellant, named above, who is in custody, is directed to be released forthwith, if not wanted in any other case and for that the convicting court/ successor court shall issue directions, if needed.

In the result this appeal stands allowed.

Appeal allowed.