Khara Marandi vs The State of Bihar (now Jharkhand)

The appellant, who was arrayed as 1st accused, was tried along with Bisheshwar Kisku, who was arrayed as 2nd accused. Both of them were charged u/s 302 and 201 of the Indian Penal Code. The trial judge, while acquitting Bisheshwar Kisku, the 2nd accused, found the appellant alone guilty for the offence u/s 302 of the Indian Penal Code, for which he was sentenced to imprisonment for life. The appellant was also sentenced to seven years rigorous imprisonment for the offence u/s 201 of the Indian Penal Code and the appeal is against the said conviction and sentence.

PW-10, Sawari Soren, is the wife of the deceased, Rakhal Hembrom. They were residing in the village Jaruadih. On 27.7.1984 at about 3.00 p.m. the appellant went to the house of the deceased and requested him to go along with him. The deceased left with the appellant and on the way they were joined by Bisheshwar Kisku, A-2 (who was acquitted). All the three went to the house of Sita Ram Hansda, PW-5 (who turned hostile) and had taken liquor. After consuming the liquor, the appellant, deceased and Bisheshwar Kisku quarreled with each other. Later, all of them disbursed. Sawari Soren, not finding her husband returning home, went in search of him to the village where he had gone with the appellant. She was informed by the wife of PW-5 that on the previous night, the appellant, Bisheshwar Kisku (A-2) as well as the deceased left the house after quarrelling with each other. She was also informed by PW-5''s wife that she heard a noise as if something had fallen into the well but could not make out as to what had fallen. On the evening of 28.7.1984, Chowkidar Kali Rai (PW-7) was informed by the appellant that the dead body of Rakhal Hembrom is in the well and thereafter it was taken out. Fardbayan, Ext. 3, was given by Sawari Soren, who is the wife of the deceased, and was recorded by the sub Inspector, Ram Nagina Singh of Masalia police station. Investigation in the crime was taken up and after the inquest (Ext. 5), the body was sent to the hospital with a requisition to the doctor to conduct autopsy.

On receipt of the requisition, PW-9, Dr.Bimal Kumar, conducted autopsy on the dead body of Rakhal Hembrom and found the following injuries:

(i) Swelling over whole of the neck. On dissection, there was ecchymosis under the skin margin with fracture of thyroid cartilage and trachea.

(ii) The tongue was protruded and was bitten by teeth.

(III) All nail beds were pale and cyanosed.

(iv) Bleedings from nostrils and mouth.

(v) Mark of taecal discharge were present.

(vi) On dissection of abdomen the liver was lacerated at two places with haematoma was present in abdominal cavity.

The doctor issued Ext. 2, the post mortem certificate, containing his opinion that death could be on account of asphyxia due to strangulation and death could have occurred about 3-4 days prior to the autopsy. He had also given his opinion in the said report that the laceration could have been caused by a hard and blunt substance.

The appellant, when questioned u/s 313 of the Code of Criminal Procedure, denied the circumstances put to him.

The learned Counsel appearing for the appellant submits that even if the entire facts are taken to be true, no offence is made out against the appellant and the trial court, having acquitted the 2nd accused, Bisheshwar Kisku, on the same set of evidence, erred in convicting the appellant, as there is no conclusive legal evidence to connect him with the crime.

On the above contention, we have heard Mr. Arbind Kumar Jha, appearing for the State.

The case of the prosecution, as could be seen from the evidence of PW-10, Sawari Soren, who is the wife of the deceased is that the appellant and the deceased went together and that they were joined by Bisheshwar Kisku. According to her, all the three went to the house of Sita Ram Hansda, who was examined as PW-5 (who turned hostile) and after taking liquor all the three quarreled. This fact that the appellant, deceased and Bisheshwar Kisku took drinks came to the knowledge of PW-10 through the wife of PW-5, who was not examined in court. Therefore, the evidence of PW-10 on this aspect cannot be taken as legal evidence as it is hearsay in nature. PW-5 was examined to show that all the three took drinks along with him and then a quarrel ensued between the parties. Having turned hostile, the prosecution cannot rely on the evidence of PW-5 to show that a quarrel ensued in the house of PW-5 between the appellant, Bisheshwar Kisku, the deceased and Sita Ram Hansda. In any event, this fact that there was a quarrel in the house of PW-5 by itself cannot be a reason for the court to come to the conclusion that the deceased was murdered by the appellant as even, according to the prosecution, the deceased and the appellant as well as other accused Bisheshwar Kisku disbursed from the house and it is not the case of the prosecution that the deceased and the appellant went together.

In this background, the evidence of PW-12, the Investigating Officer, assumes importance, as according to him, the well in which the body was found, was a well without a parapate. It is, therefore, possible that the deceased after taking drinks would have walked out from the house of PW-5 and fallen into the well by accident, as it had no parapate wall. It is also to be remembered at this stage that Bisheshwar Kisku, who was arrayed as A-2, and who was attributed with similar allegation, was acquitted by the trial court and his acquittal having become final, this Court cannot come to the conclusion that the appellant caused the death of the deceased by strangling him and then threw his body into the well.

In the absence of any conclusive legal evidence, as the prosecution has not established any other links in the chain of circumstances, this Court cannot but acquit the appellant.

The appeal is allowed and the judgment and order of conviction and sentence is set aside. It is reported that the appellant is on bail; he is discharged from the liability of bail bonds.