Sita Ram Singh vs State Of Jharkhand

Gautam Kumar Choudhary, J

Appellants are before this Court in appeal against the judgment of conviction under Sections 147, 148, 302/149 and 342 of the IPC and different terms of sentence.

Informant- Pano Devi is the wife of deceased. As per her fardbeyan recorded on 27.05.1997, on the last night, her husband had gone to the house of Akal Mochi to watch some marriage video. At around 12:00 O’clock at night, Sita Ram Singh came and knocked the door of informant’s house, who had covered his face, but she could identify him by his voice and opened the door. At some distance, Naresh Singh, Suresh Singh, Kapil Singh (all sons of Kuldip Singh), Sunil Singh, Anil Singh (both sons of Laldip Singh), Shiv Charan Sao, Manoj Sao and Hira Singh were standing there. They were in search of her husband and on the command of Girwar Sao, she called her husband. It is said that Maheshwar Singh and Girender Singh caught hold and took him away with them. The other accused persons were sitting near the handpump. It was a moonlit night and therefore, she could identify each of them. Her husband did not return the next morning and his dead body was found on the next day near the river.

On the basis of the fardbeyan, Panki P.S. case No.14/97 was registered under Sections 147, 148, 149, 302 and 342 of the IPC against all the 13 named accused persons. Police on investigation, found the case true and submitted charge sheet and the accused persons were jointly put on trial under these Sections.

Altogether 18 witnesses have been examined on behalf of the prosecution and relevant documents including post-mortem examination report, inquest report and fardbeyan have been proved and marked as exhibits.

After prosecution evidence, statements of the accused persons were recorded under Section 313 of the Cr.P.C. Defence is of innocence, but no specific defence has been pleaded.

It is argued by the learned counsel on behalf of appellants that there is no direct eye witness to the offence of murder for which the appellants have been convicted under Section 302 with the aid of Section 149 of the IPC. As per the FIR, the informant was abducted and thereafter, his dead body was found on the next day. Appellants are however not been put on trial for the charge under Section 364 of the IPC to commit abduction and murder of the deceased. FIR does not disclose that appellants were armed with deadly weapon, yet the charge has been framed under Section 148 of the IPC. P.W. 1, P.W. 4, P.W. 5, P.W. 7 and P.W. 17 have been declared hostile and not supported the prosecution case.

It is further argued that in the absence of direct eye witness to the occurrence, conviction under Sections 302/149 of the IPC is not sustainable. As per the FIR, it was Maheshwar Singh and Girinder Singh who had taken the deceased with them on the fateful night, whereas the other appellants were simply sitting near a handpump. On these facts, an unlawful assembly cannot be said to have been formed.

Learned A.P.P. has defended the judgment of conviction and sentence. It is argued that it has come in evidence that all the appellants had come to the house of the informant and took the deceased with them and on the next day, his dead body was found. In such a circumstance, Section 106 of the Evidence Act will apply, as it is only the appellants who can disclose when did they part company with the deceased and how did he met his homicidal death.

FINDING

Deceased died a homicidal death is proved by Autopsy Surgeon (P.W. 18) who found the following injuries: -

I. Rigor Mortis was absent in upper limbs but present in lower limbs. Sand particles adhered on face, hair and neck.

II. Face congested and bluish.

III. Sharp cut injury on front of neck just below chin 8” x 6’ x ½” cutting blood vessels nerves, muscles, trachea, pharynx and the portion of hyoid bone.

IV. Sharp cut injury 3 ½” x ½’ x 1” below left ear.

V. Sharp cut injury 2 ½” x 1” x 2-3” on the front of chest wall.

The deceased died a homicidal death, is established and is not under challenge. On close scrutiny of prosecution evidence, it is apparent that P.W. 1, P.W. 4, P.W. 5, P.W. 7, P.W. 8, P.W. 10, P.W. 11, P.W 12, P.W.13, P.W.14 and P.W. 16 are the witnesses either regarding the recovery of the dead body of the deceased Prabhu Sao or having seen him watching the video that night. P.W. 3- Nand Keshwar Sao is an inquest witness and P.W.6 is a witness on the point of recovery of dead body. She has also deposed that the deceased had land dispute with Sita Ram Singh and Naresh Singh. P.W. 9- Soni Devi is the mother of the deceased. She stated that she could know about the incidence from her daughter-in-law (P.W. 2), who is informant of the case.

Prosecution case hinges on the solitary account of the informant (P.W. 2), who has deposed that when she was sleeping at night in her home, a person came and knocked the door calling her husband’s name. She could identify the caller by his voice as Sita Ram Singh and opened the door. Then the informant saw all the appellants standing there. They asked her to bring forward her husband and when he came there, he was caught by them and taken away. Despite her prayers and entreaties, they did not leave her husband and he was taken by them. She has also testified regarding the land dispute with accused persons.

I am of the view that the judgment of conviction and sentence is not sustainable on the solitary account of P.W. 2 for the following reasons: -

Firstly, there is material error and infirmity in framing of charge as the charge under Section 364 of the IPC for the offence of abducting the deceased for committing his murder, has not been framed. There is no eye witness to the actual commission of murder, and P.W. 2 is only a witness to abduction of her husband. But surprisingly, no charge of abduction has been framed.

Secondly, there is contradiction between the fardbeyan and the deposition of the informant (P.W. 2). In the fardbeyan, it has been stated that all the appellants had come to her house that night, but only Maheshwar Singh and Girender Singh caught hold and taken him along with them, whereas the other accused persons were sitting near the handpump. However, it has been deposed that all the accused persons had taken away the deceased.

Thirdly, in case of circumstantial evidence, it is imperative requirement that all the circumstances is put to the accused while recording his statement under Section 313 of the Cr.P.C. so as to afford an opportunity to explain the incriminating circumstances appearing against him. In the present case, the main incriminating circumstance against the appellants that they had abducted the deceased, was not put to the appellants.

Fourthly, in cases where the accused is put on trial on the charge of abduction and murder, burden of proof is shifted on the abductor in terms of Section 106 of the Evidence Act, to explain how the person abducted met his end. In the absence of charge of abduction, this presumption cannot be drawn.

Fifthly, charge under Section 147, 148, 302/149 and 342 of the IPC, cannot by its very nature be proved by circumstantial evidence. There need to be some direct eye witness to substantiate the charge that the person accused was a member of unlawful assembly when the offence was committed.

In view of the above discussion, I am of the view that defence is seriously prejudiced on account of the error in framing charge, in recording of the statement of the accused persons and the contradiction appearing in the solitary account of the informant (P.W. 2), the appellants are entitled to benefit of doubt. Judgment of conviction and sentence, is set aside.

Criminal Appeal is allowed.

All the appellants are on bail, sureties are discharged from the liabilities of their bail bonds.

Pending Interlocutory Application, if any, is disposed of.

Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.