Sanjay Manjhi And Ors vs State Of Jharkhand And Ors

Kailash Prasad Deo, J

Heard learned Amicus Curiae Mrs. Leena Mukherjee in Criminal (Jail) Appeal (DB) No. 820 of 2010; Mr. Piyush Krishna Choudhary, learned counsel for the appellants in Criminal Appeal (DB) No. 468 of 2010 and Learned counsel for the State Mr. Shekhar Sinha, Additional Public Prosecutor.

Both the criminal appeals are arising out of common judgment of conviction dated 17.04.2010 and order of Sentence dated 20.04.2010 passed by learned Sessions Judge, Godda in Sessions Case No. 153 of 2009 whereby all four accused persons have been held guilty for the offence committed and punishable under Section 302/34 and 201/34 of the I.P.C and awarded rigorous imprisonment for life and a fine of Rs.5000/-/- and in case of default of payment of fine, simple imprisonment for 1 month for the offence committed under Section 302/34 of the I.P.C. Further they have been sentenced to undergo rigorous imprisonment for 3 years and a fine of Rs.2000/- and in case of default of payment of fine, simple imprisonment for 15 days for the offence committed under Section 201/34 of the I.P.C. Both the sentences are directed to run concurrently.

The prosecution case is based upon written report submitted by Sudhi Manjhi,P.W.4, mother of deceased Lukho Devi and mother-in-law of accused Sanjay Manjhi before the Officer-in-charge of Godda (Muffasil) Police Station on 24.04.2009 stating therein that on 21.04.2009 (Tuesday) at around 7.30 A.M. son-in-law of the informant, Sanjay Manjhi S/o Late Shyam Sundar Manjhi, resident of village Motia came to village of the Informant at Bahuria and disclosed to the Informant mother-in-law and father-in-law that her daughter Lukho Devi has quarreled and since 3.00 A.M. in the morning Lukho Devi has left for Bahuria. Informant in search of her daughter went to village Motia, where mother of Sanjay Manjhi has disclosed that Sanjay Manjhi has gone out in search of his wife. Thereafter, informant returned to her house. At around 4 P.M. on the same day, the informant again went to village Motia and saw that her son-in-law Sanjay Manjhi was cooking food in the house. The informant asked him about her daughter, upon which Sanjay Manjhi has disclosed that he has not received any information till now. Informant has alleged that mother and father of Sanjay Manjhi have abused her. While returning from village Motia informant was accompanied by Sanjay Manjhi. In the way from Motia to Bahuria, Sanjay Manjhi has received 10-12 mobile calls and thereafter all of them went to village Bahuria. In course of conversation at village Bahuria, Sanjay Manjhi has disclosed that he has no information about his wife. It is further stated that on 23.04.2009 when the informant along with co-villagers went to village Motia, at that time search was made in well and other places. Again the informant returned to her village at 1.30 p.m. and thereafter on 24.04.2009 (Friday) at around 9A.M. Informant went to village Motia. A meeting was convened at 12.00 noon in presence of 10-15 persons of village Motia and 10-15 persons of village Bahuria. On query it has been disclosed by father of Sanjay Manjhi namely Shyam Sunder Manjhi (an appellant, whose case has been abated), that girl will not be traced. Upon which informant has believed that Sanjay Manjhi has killed her daughter Lukho Devi and has concealed the dead body. When query was made from Sanjay Manjhi, then he has confessed his guilt that he has killed his wife Lukho Devi in association with Shyam Sundar Manjhi S/o Late Rohin Manjhi, Jitendra Manjhi S/o Mahendra Manjhi and Pramod Paswan S/o Chandar Paswan, all residents of village Motia, P.S Godda(Muffasil), District Godda, by pressing her neck and concealed her dead body by digging in the sand at Lilji River at Dumaria. The informant along with Sanjay Manjhi and others went to Lilji River at Dumaria and found the dead body of Lukho Devi concealed in the sand and after identifying the dead body they have informed the Choukidar. The informant claimed that her daughter has been killed by Sanjay Manjhi, Shyam Sundar Manjhi, Jitendra Manjhi and Pramod Paswan by pressing her neck and they have concealed the dead body at Lilji River at Dumaria.

On the basis of written report of the Informant, Police has registered, Godda ( Muffasil) P.S. case No. 131 of 2009 dated 25.04.2009 under Sections 302/201/34 of the I.P.C against all the 4 named accused persons (1) Sanjay Manjhi, (2) Shyam Sundar Manjhi, (3) Jitendra Manjhi and (4) Pramod Paswan. On completion of the investigation, Police has submitted charge-sheet vide No. 81 of 2009 dated 30.06.2009 under Section 302/201/34 of the I.P.C. against all the 4 named accused persons. Cognizance of offence under Section 302,201/34 of the I.P.C. was taken against the accused persons vide order dated 04.07.2009 and the case was committed to the Court of Sessions vide order dated 15.07.2009. The charge has been framed against all the four accused persons under Section 302/34 and 201/34 of the I.P.C vide order dated 27.07.2009, to which the accused persons have pleaded themselves to be innocent. Thus, the accused were put under trial.

In order to prove the prosecution case, the prosecution has examined altogether 9 prosecution witnesses which are as follows:-

(i) Devendra Paswan has been examined as P.W.1 and has been declared hostile by the prosecution;

(ii) Upendra Manjhi cousin of the deceased Lukho Devi has been examined as P.W.2;

(iii) Bishwanath Rai second Investigating Officer of the case has been examined as P.W.3. He has submitted charge sheet in the case;

(iv) Sudhi Manjhi Informant, mother of the deceased and mother-in-law of the accused / appellant Sanjay Manjhi has been examined as P.W.4;

(v) Mahendra Manjhi has been examined as P.W.5;

(vi) Gopi Manjhi has been examined as P.W.6, both P.W.5 and P.W.6 have been declared hostile by the prosecution;

(vii) Dr. Satyendra Mishra, Medical Officer who has conducted autopsy on the dead body of Lukho Devi on 25.04.2009 at 12.40 P.M. has been examined as P.W.7;

(viii) Mukesh Kumar Soni has been examined as P.W.8 and has been declared hostile by the prosecution;

(ix) Bharat Singh, the first Investigating Officer of the case has been examined as P.W.9.

Prosecution has also proved and exhibited documentary evidence up to Ext. 4 as under:

(i) The written report, bearing signature of Upendra Manjhi P.W.2 and thumb impression of Sudhi Manjhi P.W, has been proved and marked as Ext. 1;

(ii) Forwarding endorsement made by the Police Officer on the written report has been proved by Bishwanath Rai P.W.3 and has been marked as Ext.1/1;

(iii) Formal F.I.R has been proved by P.W.3 and marked as Ext.2;

(iv) Post mortem report of the deceased Lukho Devi has been proved by P.W.7 Medical Officer Dr. Satyendra Mishra and marked as Ext. 3;

(v) Para 1 to 49 of the case diary has been proved by P.W.9 Bharat Singh, first Investigating Officer of the case and marked as Ext.4.

After closure of the prosecution evidence, statements of the accused persons have been recorded under Section 313 Cr.P.C on 21.12.2009 to which they have claimed to be innocent and denied their involvement in the case. Accused Jitendra Manjhi has categorically stated that since he has old enmity with Sanjay Manjhi and Shyam Sundar Manjhi, he has been falsely implicated in the case.

Defence has also examined one witness D.W.1 Pandit Ras Bihari Jha who has proved the Patra (Calender / Almanac) published by Kameshwar Singh University, Darbhanga marked as Ext.D. Accused persons have also proved the certified copy of complaint case vide PCR Case No. 667 of 2008 corresponding to T.R. No. 869/2009 as Ext.A, certified copy of deposition of P.W.2 Mahendra Manjhi in P.C.R. Case No. 667 of 2008 as Ext. B and certified copy of order dated 15.06.2009 passed in said P.C.R case as Ext.C.

After hearing the learned counsel for the parties and on the basis of the materials available on record, learned Trial Court has passed the impugned judgment of conviction and order of sentence holding the appellants guilty under section 302/201/34 of the Indian Penal Code on the ground that though there is no eye witness to the occurrence but there is evidence in the form of inculpatory extra judicial confession of the accused Sanjay Manjhi made inter alia before P.W.2 Upendra Manjhi and P.W.4 informant Sudhi Manjhi and no explanation has been given to the question made to the accused in his statement under Section 313 Cr.P.C relating to confession being made by Sanjay Manjhi at village Motia about involvement of himself and other co accused in the murder of Lukho Devi by throttling her neck and same has not been demolished by the accused. The Doctor has also found that deceased died due to asphyxia as such, learned Trial Court has held these accused persons guilty.

Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, accused Sanjay Manjhi and Shyam Sundar Manjhi have preferred Criminal (Jail) Appeal (DB) No. 820 of 2010 and accused Pramod Paswan and Jitendra Manjhi have preferred Criminal Appeal (DB) No. 468 of 2010 before this Court assailing the impugned judgment of conviction and order of sentence and as such both the appeals are being heard together.

During pendency of these appeals before this Court, accused Shyam Sundar Manjhi has died and his criminal appeal has been abated vide order dated 11.02.2019 and as such Criminal (Jail) Appeal No.820 of 2010 remains pending with respect to accused Sanjay Manjhi only and the Criminal Appeal No. 468 of 2010 remains pending for both the accused Pramod Paswan and Jitendra Manjhi.

Heard learned Amicus Curiae Mrs. Leena Mukherjee in Criminal (Jail) Appeal (DB) No. 820 of 2010 and Mr. Piyush Krishna Choudhary, learned counsel for the appellants in Criminal Appeal (DB) No. 468 of 2010.

Learned Amicus Curiae and learned counsel for the appellants in connected appeal have submitted that the impugned judgment of conviction and order of sentence is bad in law as well as on facts and cannot sustain in the eyes of law. There is no eye witness to the occurrence and the circumstantial evidence which has been considered by the learned Trial Court is not complete. There is break in the chain of the circumstantial evidence. Learned Amicus Curiae as well as learned counsel for the appellants have submitted that P.W.1 Devendra Paswan, P.W.5 Mahendra Manjhi, P.W.6 Gopi Manjhi and P.W.8 Mukesh Kumar Soni have not supported the case of the prosecution and as such they have been declared hostile by the prosecution. Learned counsels have submitted that P.W3 Bishwanath Rai, and P.W.9 Bharat Singh are the Investigating Officer of the case and P.W.7 Dr. Satayendra Mishra is the Medical Officer who has conducted the post mortem on the dead body of Lukho Devi. Learned counsels have further submitted that the entire prosecution case, revolves around the evidence of P.W.2 Upendra Manjhi and P.W.4 Sudhi Manjhi. Informant is not the eye witness to the occurrence and she was informed by the accused Sanjay Manjhi on 21.04.2009 at 7.30 a.m. regarding missing of Lukho Devi from her house after quarreling. Learned counsels have further submitted that P.W.2 Upendra Manjhi is the cousin of deceased Lukho Devi and has categorically stated at para 6 of his cross examination that relationship between Sanjay Manjhi and Lukho Devi was cordial. Learned counsel have further submitted that considering the evidence brought on record, nothing has been shown against the appellants to hold conviction under Section 302/34 and 201/34 of the I.P.C. Learned counsels have further submitted that the entire prosecution case is based upon circumstantial evidence as there is no eye witness to the alleged occurrence. It is settled principle that conviction can be based solely on the basis of circumstantial evidence but all the circumstances should be complete and there should be no gap left in the chain of the circumstances.

Learned counsels have buttressed their arguments on the basis of a judgment passed in the case of Hanumant Govind Nargundkar Vrs. State of M.P reported in AIR 1952 SC 343. The same view has been reiterated in the case of Padala Veera Reddy Vrs. State of A.P. reported in 1989 Supp (2) SC 706. The Supreme Court has laid down the test, which the prosecution in a case of circumstantial evidence must satisfy:-

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused ;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and non else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence".

Learned Amicus Curiae and learned Counsel for the appellants have further submitted in the present case, chain of circumstances has not been proved by the prosecution nor Sanjay Manjhi appellant can be held liable under Section 106 of the Indian Evidence Act as the conduct of appellant Sanjay Manjhi shows that in the morning after missing of his wife Lukho Devi, he went to his sasural in the morning at 7.30 a.m on 21.04.2009 and disclosed about missing of his wife to his mother-in-law and father-in-law as she has left the house after some quarrel. Thereafter the informant i.e., his mother-in-law and other came to the house of the accused / appellant Sanjay Manjhi and they also did not found anything abnormal. As such F.I.R could not be lodged till recovery of the dead body on 24.04.2009 from Lilji river in the village Dumaria concealed under sand. Learned counsels have further submitted that the conduct of the accused shows that he has informed the in-laws about the sudden quarrel which has taken place with wife and as such he has discharged his onus as contemplated under Section 106 of the Indian Evidence Act but nothing was found to be suspicious / doubtful, no F.I.R has been lodged and only after the dead body was recovered, a concocted case has been lodged before the police stating therein that accused Sanjay Manjhi has confessed his guilt in his inculpatory statement showing the involvement of his father Shyam Sundar Manjhi and his friends Jitendra Manjhi and Pramod Paswan in commission of murder of his wife Lukho Devi. Learned Counsels have submitted that it is not the case of the prosecution that on the disclosure made by the accused / appellant Sanjay Manjhi the dead body has been recovered, which comes under the ambit of Section 27 of the Indian Evidence Act. Learned counsels have submitted that none of the prosecution witnesses have supported the theory of panchayati in which the accused Sanjay Manjhi has confessed his guilt nor any of the witnesses have been examined nor any paper prepared in the panchayati have been brought on record. Learned counsels have further submitted that from perusal of the record it appears that Police came to village on 24.04.2009 at 7.00 p.m. and arrested the accused Sanjay Manjhi, though from the inquest report it is apparent that the dead body was recovered on 24.04.2009 at 16.15 hours meaning thereby that the dead body was never recovered pursuant to the confession made by the accused Sanjay Manjhi in police custody bringing the same under the purview of Section 27 of the Evidence Act rather dead body was recovered prior to confession. Learned counsels have further submitted that the present case is a case where there is no evidence against these appellants particularly Sanjay Manjhi and Shyam Sundar Manjhi except that Sanjay Manjhi is husband and Shyam Sundar Manjhi is the father-in-law of the deceased.

Learned Counsel Mr. Piyush Krishna Choudhary appearing for the appellant Jitendra Manjhi and Pramod Paswan in Criminal Appeal(DB) No. 468 of 2010 has further submitted that in the statement of the accused Jitendra Manjhi recorded under Section 313 Cr.P.C he has categorically stated that he has old enmity with accused Sanjay Manjhi and Shyam Sundar Manjhi and as such he has been falsely implicated. Learned counsel has thus submitted that there is no legal material against the accused / appellants to uphold the judgment of conviction and order of sentence which has been passed without having any material against them. Learned counsels have thus submitted that the impugned judgment of conviction and order of sentence is bad in law and thus fit to be set aside.

Learned counsel for the State Mr. Shekhar Sinha, Additional Public Prosecutor, has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned Trial Court on the basis of the materials available on record. Learned counsel for the State has submitted that the accused Sanjay Manjhi is the husband of the victim Lukho Devi and he is duty bound to explain the death of his wife, as contemplated under section 106 of the Evidence Act., which reads as under:

"106. Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him".

Learned State counsel has submitted that the accused Sanjay Manjhi is the husband of the victim Lukho Devi with whom she lived last night prior to the date of occurrence dated 21.04.2009 and as such, Sanjay Manjhi has to explain the circumstances regarding death of his wife. Learned State counsel has submitted that the Medical Officer, P.W.7 Dr. Satyendra Mishra who has proved the postmortem report of Lukho Devi, has categorically stated that the deceased died because of throttling of neck, which is in consonance with the admission made by the accused / appellant Sanjay Manjhi before 10-12 persons of village Bahuria and 10-15 persons of village Motia, which is an extra judicial confession and corresponding injury have been found by the doctor, which are the sufficient evidence against the accused / appellant Sanjay Manjhi as he has given inculpatory statement which is admissible in law. As such, learned Trial Court has rightly convicted all the 4 (four) accused persons facing trial. Learned State counsel has thus submitted that the impugned judgment of conviction and order of sentence does not required any interference by this court, as the evidence is consistent and based on material facts available on record.

Heard learned Amicus Curiae Mrs. Leena Mukherjee in Cr. (jail) Appeal (DB) No. 820/2010 for the appellant Sanjay Manjhi and Mr. Piyush Krishna Choudhary, learned counsel in Cr. Appeal (DB) No. 468/2010 appearing on behalf of appellant Pramod Paswan and Jitendra Manjhi and learned counsel for the State Mr. Shekhar Sinha, Additional Public Prosecutor. This court has perused the materials brought on record including the first information report, framing of the charge, evidence of 9 prosecution witnesses, 4 prosecution exhibits, statement of the accused persons recorded under Section 313 Cr.PC, defence witness Ras Bihari Jha as well as defence documents. This court has also perused the impugned judgment of conviction and order of sentence and judgment relied upon by the learned Amicus Curiae and learned counsel for the appellants

On scrutinizing the prosecution evidence, it appears that out of 9 prosecution witnesses, P.W.1 Devendra Paswan, P.W.5 Mahendra Manjhi, P.W.6 Gopi Manjhi and P.W.8 Mukesh Kumar Soni have not supported the case of the prosecution and thus, they have been declared hostile by the prosecution. P.W.3 Biswanath Rai and P.W.9 Bharat Singh are the Investigating Officers. P.W.7 Dr. Satyendra Mishra is the Medical Officer who has conducted postmortem of the dead body of the deceased and proved the same, which has been marked as Ext.3. As such, the entire evidence revolves around the P.W.2 Upendra Manjhi and P.W.4 Sudhi Manjhi. They are cousin and mother of the deceased Lukho Devi. This court has perused the evidence of P.W.2 Upendra Manjhi and P.W.4 Sudhi Manjhi in detail. From the evidence of P.W.2 Upendra Manjhi, it appears that he has categorically stated in his cross-examination at para-6 that the relationship between the wife and husband (Sanjay Manjhi and Lukho Devi) was cordial. He has not stated a single word which can show any reason for commission of such heinous crime like murder of his own wife by the accused / appellant Sanjay Manjhi. The alleged confessional statement has not been proved in accordance with law as none of the witnesses in whose presence the accused has confessed his guilt, have been examined on behalf of the prosecution. From the materials brought on record, it appears that the dead body of the victim Lukho Devi was recovered and the inquest report has been prepared on 24.04.2009 at 16.15 Hrs. whereas the police came to the village on 24.04.2009 at 7 P.M and arrested the accused at 7.10 P.M. Under the aforesaid circumstances, it cannot be accepted that the confession of the accused has led to the recovery of the dead body from Lilji river in the village Dumaria in terms of Section 27 of the Evidence Act. This court has taken note of the evidence adduced by the Informant, P.W.4 Sudhi Manjhi. She has categorically stated that on 21.04.2009 at 7.30 A.M, her son-in-law Sanjay Manjhi came to the village and informed about missing of her daughter Lukho Devi as there was some quarrel with the wife. This shows that the accused Sanjay Manjhi has discharged his onus, as contemplated under section 106 of the Indian Evidence Act and for three days, both parties were meeting and searching the victim. At that time, the prosecution has no doubt about the involvement of Sanjay Manjhi in the alleged occurrence. It is only after the dead body was recovered under the sand of Lilji river on 24.04.2009 at 16.15 Hrs., the allegation has been levelled against the accused / appellant Sanjay Manjhi. Prosecution has tried to establish that Sanjay Manjhi has confessed his guilt before the villagers of Motia and Bahuria village and on the basis of the same, the dead body has been recovered from the river bed, but no witness either of the village Bahuria (village of the Informant) or Motia (village of the accused) have been examined by the prosecution to substantiate the same, so as to bring the extra judicial confession alleged by the prosecution as a piece of evidence for considering against the accused / appellant. The entire material shows that the accused Sanjay Manjhi has discharged his duty and his conduct is also not unnatural to be doubted. The dead body of the victim was recovered from the river bed of Lilji river. As such, an F.I.R has been lodged against the husband, father-in-law and two of the co-villagers. The prosecution has not been able to prove that there is any material, so far as the accused Pramod Paswan and Jitendra Manjhi are concerned except the purported confessional statement of the accused Sanjay Manjhi confessing his guilt before the villagers, though said villagers have not been examined. The confessional statement is also weak piece of evidence and that too uncorroborated, cannot be relied upon for convicting the accused.

Under the aforesaid circumstances, in view of the judgment cited by the learned Amicus Curiae and learned counsel for the appellants i.e., Hanumant Govind Nargundkar and Padala Veera Reddy (supra), this court is of the opinion that the prosecution has failed to prove the test of circumstantial evidence to hold these appellants guilty of the charge under sections 302/34 and 201/34 of the Indian Penal Code. This court has also taken note of the judgment in the case of Balwinder Singh Vrs. State of Punjab reported in 1995 Supp. (4) SCC 259 wherein it has been held that "the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof". The prosecution has not brought any material on record to establish that these accused / appellants are the only person who have committed the murder of Lukho Devi, as the extra judicial confession cannot be considered to be a legal material. A statement, whether communicated or not, admitting guilt amounts to a confession of guilt. The probative value of admission or a confession does not depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof. This proof in the case of oral admission or confession can be offered only by witnesses who heard the admission or confession, as the case may be. [see Sahu Vrs. State of Uttar Pradesh, AIR 1966 SC 40]. In the present case, none of the witnesses of village Bahuria and Motia have been examined to prove the confession of the accused before them.

In the case of State of U.P. Vrs. M.K. Anthony reported in (1985) 1 SCC 505 the Hon'ble Supreme Court has observed that there is no rule of law nor rule of prudence that extra judicial confession cannot be acted upon, unless corroborated. Prosecution has not brought any corroborative materials on record to substantiate the statement of the accused Sanjay Manjhi as extra judicial confession. Under the aforesaid circumstances as discussed above, we are of the opinion that the impugned judgment of conviction passed by the learned Trial Court considering the extra judicial confession of the accused Sanjay Manjhi as one of the ground coupled with the fact that he has not discharged his duty, as contemplated under section 106 of the Evidence Act, does not satisfy the requirement of law and conscience of this Court. As such, there is reason to interfere in the impugned judgment of conviction and order of sentence as the inculpatory extra judicial confession have not been proved by the prosecution to consider it to be a legal evidence as discussed above and the accused Sanjay Manjhi has discharged his duty, as contemplated under section 106 of the Evidence Act.

Considering the same as discussed above, we are of the opinion that the impugned judgment of conviction dated 17.04.2010 and order of sentence dated 20.04.2010 passed in Sessions Case No. 153/2009 by the learned Sessions Judge, Godda is not fit to be upheld and affirmed. As such, the same is being hereby set aside. Appellants are acquitted of the charge and conviction under sections 302/34 and 201/34 of the Indian Penal Code. Appellant Sanjay Manjhi in Cr. Appeal (DB) No. 820/2010 is in custody, as such he is directed to be released at once, if not wanted in any other case. So far as appellants Pramod Paswan and Jitenda Manjhi in Cr. Appeal (DB) No. 468/2010 are concerned, they are on bail. They are discharged from the liability of their bail bonds.

In the result, both the appeals are allowed.

Let lower court records be sent down to the court below along with a copy of this judgment.

Before parting with the judgment, we appreciate the valuable assistance provided by the learned Amicus Curiae Mrs. Leena Mukherjee in assisting the Court during the course of hearing. The Secretary, Jharkhand High Court Legal Services Committee is directed to release the legally admissible remuneration of learned Amicus Curiae within a period of four weeks from the date of production of the certified copy of the judgment along with an application.