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Judgment
Pradeep Kumar Srivastava, J
Heard Mr. S.K. Chaturvedi, learned Amicus Curiae appearing for the appellant and Mr. Pankaj Kumar Mishra, learned A.P.P. appearing for the State.
The instant appeal has been preferred by the sole appellant against the judgment and order of conviction and sentence dated 13.11.2002 and 14.11.2002 passed by learned Additional Sessions Judge, Fast Track Court-I, Gumla in S.T. No.48 of 2002, whereby and whereunder the appellant has been held guilty for the offence under section 302 of Indian Penal Code and sentenced to undergo rigorous imprisonment for life.
Factual Matrix
The factual matrix giving rise to this appeal is that while the informant was sleeping in his house on intervening night of 3/4.12.2001 at around 12:00 o'clock, he heard some sound of weeping of a child then the informant woke up and went towards the side of sound and came to know that Kuthu Oraon has killed Likhu Kumhar by assaulting him with tangi on the neck. The informant, who happens to be the brother of the deceased, went inside the room of his brother and saw that his dead body was lying on a chauki and the tangi was struck in the neck of his brother and also entangled in the neck. The informant came to know from his nephew, Krishna Kumhar and others that while they were sleeping with Likhu (deceased) in the varandah, they heard hulla and woke up in the light of the dibri and saw Kuthu Oraon giving tangi blow on the neck of the deceased and fled away. It is further alleged that on hearing sound of weeping, several villagers assembled at the place of occurrence. It is further alleged that the deceased had five sons and two daughters and his wife has already been died two years ago. It is further alleged that the accused, Kuthu Oraon intended to marry with the eldest daughter of the deceased against her will, in spite of opposition by the family members, hence, she was sent to the village Bindora for settlement of her marriage. It is further alleged that the deceased, Likhu Kumhar went to Bindora to meet his daughter, Kunti Kumari on Sunday and returned on Monday night then the appellant killed the deceased on the same night by giving tangi blow.
On the basis of above information, Raidih P.S. Case No.61 of 2001 was registered for the offences under section 302 of Indian Penal Code. After completion of investigation, charge-sheet was submitted against the accused. The appellant has denied the charges leveled against him. After conclusion of the trial, the present appellant has been held guilty and sentenced for the aforesaid offence.
Submission on behalf of the appellant
Learned counsel for the appellant assailing the impugned judgment and order of conviction and sentence has vehemently argued that none of the prosecution witnesses have seen the occurrence. The prosecution has projected the son of the deceased as an eye-witness of this case after tutoring him. Except the said tutored eye-witness (P.W.5), there is no iota of evidence against the appellant proving his involvement in the alleged offence. The very motive for commission of the murder that the appellant has any affair with the daughter of the deceased has not been proved by any cogent evidence. Learned counsel further submits that no incriminating articles showing involvement of the appellant has been seized and proved by the prosecution and the whole prosecution story is based upon concocted story of love affair between the daughter of the deceased and the present appellant. The informant himself, who happens to be brother of the deceased and in order to grab the property of the deceased, the informant tutored his nephew and projected him to be an eye- witness of the occurrence. Learned trial court has ignored the vital aspects of the case and the very motive behind the occurrence, which was never proved and no element of any love-affair between Kunti Kumari and the appellant furnishing any motive for the occurrence. Surprisingly, the said daughter of the deceased namely, Kunti Kumari has not been examined by the prosecution to substantiate the story of her marriage with the appellant in forcible manner or any threatening given to her by the appellant. It is further submitted that even if, this motive alleged by the prosecution may be accepted, there is no iota of evidence proving the guilt of the appellant beyond all reasonable doubts. The suspicion howsoever strong it may be, cannot take place of legal proof. Therefore, the impugned judgment and order of conviction and sentence of the appellant is simply based on conjecture and surmises and tutored testimony of the child witness and liable to be set aside, allowing this appeal.
Submission on behalf of the State
On the other hand, learned A.P.P. appearing for the State defending the conviction and sentence of the appellant has submitted that learned trial court has very wisely and aptly apprised and evaluated the prosecution evidence available on record and found direct involvement of the appellant in commission of murder of the deceased, Likhu Kumhar, which suffers from no error of law and the points of argument raised on behalf of the appellant has no legal substance. Accordingly, this appeal has no merits and fit to be dismissed.
We have gone through the record of the case along with the impugned judgment and order in the light of contentions raised on behalf of the both side.
The only point for determination in this appeal is that"asto whether the impugned judgment and order of conviction and sentence of the appellant passed by learned trial court suffers from any error of law calling for any interference in this appeal?"
Analysis, Reasons and Decision:-
Before adverting to adjudicate the aforesaid point, we have to take brief resume of oral as well as documentary evidence lead by the prosecution to substantiate the charges leveled against the appellant.
It appears that altogether 9 witnesses were examined by the prosecution.
P.W.1-Dadu Kumhar is a witness of seizure list of the blood-stained tangi. He has proved the signature of himself as well as other witness, Chaitu Kumhar as Ext.1 and Ext.1/1. This witness has also proved his signature on inquest report along with other witness, Chaitu Kumhar as Ext.1/2 and Ext. 1/3 respectively. He has expressed no knowledge about factualfacts of the case.
P.W.2-Chiatu Kumhar is also a witness of the seizure list and the inquest report and had stated nothing about the factualfacts of the case.
P.W.3-Beje Kumhar is a hearsay witness and after hearing hullah of Krishna Kumhar, he went to his house and came to know from Krishna Kumhar that Kuthu Oroan has killed Likhu Kumhar by giving tangi blow on the neck. He has further deposed that the accused was desiring to marry with the daughter of Likhu Kumhar, namely Kunti Kumari but her father (deceased) solemnized her marriage with one Budhu and the deceased has returned on the same day after solemnizing his daughter.
In his cross-examination, he admits that Kunti Kumari was married about three days prior to the occurrence but he has not attended the marriage. His house is situated at a distance of 150-200 yards away from the house of the deceased. This witness further admits that when he reached at the house of the deceased, there was a crowd of 10-12 villagers. There is nothing else in his evidence.
P.W.4- Jageshwar Uraon has deposed that on the next day of the occurrence on 04.12.2001 at about 5:30-6:00 am, when he was returning after discharging the nature's call, he came to know from Dadu and Ravindar that Likhu Kumhar has been murdered by Kuthu Oraon. He also saw the dead body of the deceased, Likhu Kumhar at his house.
In his cross-examination, this witness admits that he was not interrogated by the police and whatever he has stated was not disclosed by him to the police. This witness has no knowledge about any love-affair between Kunti and Kuthu Oraon.
P.W.5-Krishna Kumhar aged about 12 years is the son of the deceased, Likhu Kumhar. Learned trial court after asking some questions has found this witness to be a competent witness. According to his evidence, on the date of occurrence in the night, he along with Gauri Shankar, Bharat Ram, Sishupal and sister Laxmi Bai were sleeping in a room and his father was sleeping in the verandah (Dhaba). In the night, he heard hullah of his father and woke up and other persons sleeping along with him also woke up and this witness saw that Kuthu Oraon was giving tangi blow to his father on the neck. When he went there then Kuthu Oroan fled away and tangi was entangled in the neck of his father. This witness raised alarm then his uncle, Mandur Kumhar, Bede Kumhar, Haitu Kumhar, Dadu Kumhar, Ravindra Oraon, Jageshwar Oraon and other villagers arrived there. He has further deposed that at the time of occurrence, dibia (Dhibri) was lighting and the blood was spread all over the room and his father had died. He has further deposed that the accused, Kuthu was desiring to forcibly solemnize marriage with his elder sister, Kunti Kumari against her will and his father was also opposing. Therefore, his father along with Kunti went to the village Bendor to drop his daughter at the house of Dhurv Mahto and his father again went to the village, Bendor on Sunday to see his daughter and returned on Monday at evening and on the same day, when his father was sleeping after taking dinner, this occurrence took place. The accused was annoyed due to non-solemnization of marriage with Kunti Kumari, hence he has killed his father.
In his cross-examination, he admits that he has stated in his statement before the police that he has seen Kuthu Oraon to inflict tangi blow on the neck of his father. He further admits that his house consists of three rooms and surrounded with varanda from four corners. He was sleeping in the north side room in which the door was fitted and after taking dinner, he went to sleep by closing the door from inside. His father was sleeping towards east varanda at a distance of 30 feet. He also admits that where this witness was sleeping along with others, no dibri was lighting. He heard hulla of his father only once. He also states that although he had bolted the door from inside of his room but there was a hole in the wall and anyone can open the door and enter into the room and thereafter went to the varandah of his father. He has denied the suggestion of the defence that he has not seen the occurrence rather he has given false evidence on the tutoring by his uncle.
P.W.6-Ravindra Oraon has stated that in the next day of the occurrence at morning, he came to know from one Bere Kumhar that Kuthu Oraon has killed Likhu Kumhar and he saw the dead body of the deceased. He has stated nothing else.
P.W.7-Mandur Kumhar is the informant-cum-uncle of Krishna Kumhar, P.W.5. According to his evidence, on the date of occurrence at about 12:30 hours in the night, he heard weeping sound of his nephew, Krishna and niece, Gauri and went there, he saw the dead body of his brother, Likhu lying on a chauki in the varandah and the tangi was also entangled in his neck. His nephew disclosed that his father has been killed by Kuthu Oroan. This witness stated about the motive behind the occurrence that the accused was desiring to marry with the eldest daughter of the deceased, which he declined and his brother solemnized marriage of his daughter to one Budhu at village Bendor due to this, the accused was annoyed and killed him.
In his cross-examination, he admits that Kunti Kumari was married with Budhu about one month prior to the occurrence but he has not participated in that marriage. He has denied the suggestion of the defence that he has tutored his nephew, Krishna Kumhar and has falsely implicated the accused in this case only on the suspicion.
P.W.8-A.S.I., Tarsius Toppo is the Investigating Officer of this case. According to his evidence on 04.12.2001, he was posted as ASI at Raidih police station and has received information about the murder through rumor, then village chaukidars, Shivcharan Tudu, Ashim Kuujur and other arm forces reached at village at about 14:40 hours and recorded the fardbayan of Mandur Kumhar, which is marked as Ext.2 and prepared inquest report of the deceased, Likhu Kumhar and marked as Ext.3. He also seized blood-stained tangi and gamcha and the seizure list was prepared in presence of witnesses, which was marked as Ext.4. He also inspected the place of occurrence, which is mud-made house and roofed with mud tiles. The main door is towards the east side of the house and was surrounded with varandahs from four corners and the dead body was lying on a chauki. This witness has also recorded the statement of other witness Dadu Kumhar, Chaitu Kumar, Krishna Kumar, Ravindra Oraon and Jageshwar Oraon and had sent the dead body of the deceased for post- mortem. He has proved the formal FIR as Ext.5. After completion of investigation, he has submitted the charge-sheet against the accused for the offence under section 302 of IPC.
In his cross-examination, this witness admits that he admits that the blood-stained tangi and gamcha were seized in this case and have been sent to Forensic Science Laboratory for chemical examination but the report is not available. He further states that the informant has not disclosed before him that he went to the place of occurrence after hearing hullah of his nephew, Krishna and has also not disclosed about the presence of burning dibri at the place of occurrence. This witness further admits that P.W.5, Krishna Kumhar has also not disclosed before him that he has seen the accused while giving tangi blow to his father. He further admits that he has not taken statement of Kunti or any person of her matrimonial home. He had denied the suggestion of the defence that he has submitted charge-sheet against the accused person without colleting sufficient evidence.
P.W.9 Dr. Kameshwar Nath Tiwary has conducted autopsy on the dead body of the deceased and found following:
(i) Incised wound4"x1"x bone deep present over the left lateral part of the neck just below the left ear. All the major vessels are also cut, body of the second cervical vertebra is also cut.
On Dissections:-
Skull bone-normal, brain and meneges are pale. Both lungs intact and pale, both chambers of the heart empty, stomach contains some digested food and bladder contains about 10 cc of urine.
Inference:-
All the said injury is ante-mortem in nature caused by sharp-cutting weapon like tangi.
Death is due to shock and hemorrhage caused by injury No.1. Time elapsed since death from post-mortem examination is within 12-24 hours.
Rigor mortis were preset on all four limbs. The post mortem report is marked as Ext.6.
On the other hand, no oral or documentary evidence has been adduced by the defence. In his statement recorded under section 313 of Cr.P.C., the accused had specifically denied that he was desiring to marry with the daughter of the deceased, Likhu Kumhar against her will. Since, the deceased has solemnized marriage of his daughter, Kunti with another person, due to which he was annoyed. He has denied the commission of murder of the deceased by giving tangi blow and pleaded innocence.
It appears from the impugned judgment that learned trial court has laid much emphasis upon the fact that the prosecution has proved beyond doubt that there was love relationship between Kunti Kumari and the appellant. Admittedly, the appellant was belonging to a tribal community, hence, the deceased was not convinced with such type of marriage and had solemnized marriage of his daughter with another person, due to this reason, the appellant got annoyed and killed the deceased. Learned trial court has also relied upon the evidence of P.W.-5, who has seen the occurrence in the light of dibri.
We have given thoughtful consideration to overall aspects of the case and also considered the reasons recorded by learned trial court while arriving at conclusion of guilt of the appellant. We find that the claim of P.W.5 as an eye-witness of the occurrence is not tenable at all. He has given contradictory statement regarding seeing the accused while inflicting tangi blow on the neck of the deceased. Admittedly, he was sleeping with 4-5 family members and one single sound of alarm raised by his father, he rushed towards dhaba and found his father in injured condition. There is no reasonable explanation from this witness as to how the accused got managed to enter into the house while he closed the door from inside of his room. His source of identification of the accused in the night is also bleak. The main motive behind the occurrence has also not been proved by any cogent and reliable evidence. The daughter of the deceased, Kunti Kumari or her husband or any other in- laws' family members were admittedly not interrogated by the investigating officer and have not been examined to prove the very genesis/motive of the case. The informant, who was quite instrumental in this case, is none else but the brother of the deceased. According to the informant, the deceased has solemnized marriage of his eldest daughter about one month prior to the occurrence but he did not participate in the marriage. On the other hand, P.W.5, Krishna Kumhar, who happens to be brother of Kunti Kumari and other witnesses of the facts states that only about three days prior to the occurrence, Kunti was married with Budhu. The prosecution has also failed to bring any incident of threatening given by the appellant to the deceased or his family members. No such recourse was taken before the village panchyat also. Therefore, the entire story projected by the prosecution does not appear to be trustworthy and shrouded with doubt. Suppressing the real material facts, the prosecution has projected a story about threatening given by the appellant to the deceased for solemnizing marriage of his daughter with another person, this core motive behind the occurrence might have been substantiated by the best evidence of Kunti Kumari but she has been kept behind the curtain.
In the aforementioned facts and circumstances, we are of the firm view that learned trial court has wrongly placed reliance upon the testimony of P.W.5 as an eye-witness of the occurrence and the surrounding circumstances projected by the prosecution regarding motive behind the occurrence. In absence of concrete evidence to prove the above aspects of the case beyond all reasonable doubts against the appellant, we are unable to sustain the conviction of the appellant, which suffers from serious error of law. Therefore, we set aside the impugned judgment and order of conviction and sentence dated 13.11.2002 and 14.11.2002 passed by learned Additional Sessions Judge, Fast Track Court-I, Gumla in S.T. No.48 of 2002 and this appeal is allowed.
The appellant is on bail, hence, he is discharged from liability of bail bond. The sureties are also discharged.
Pending I.A(s), if any, is also disposed of accordingly.
Let a copy of this judgment along with Trial Court Records be sent back to the court concerned for information and needful.
We take this opportunity to appreciate the assistance rendered by Mr. S.K. Chaturvedi, learned Amicus Curiae and direct the Member Secretary, High Court Legal Services Committee to process fees of Rs.7,500/-(Rs. Seven Thousand and Five Hundred) to Mr. S.K. Chaturvedi within a period of four weeks from the date of receipt/production of a copy of this order.
Office is directed to ensure that a copy of this order be served to Member Secretary, High Court Legal Services Committee for processing the fees to learned Amicus Curiae.