IN THE HIGH COURT OF JHARKHAND AT RANCHI [CASE NUMBER] (Against the Judgment of conviction dated 28th June, 1993 and Order of sentence dated 3rd July, 1993 passed by Sri [ENTITY], 3rd Additional Sessions Judge, Hazaribag in [CASE NUMBER]) [ENTITY], son of [ENTITY] Resident of Kubridhoiya, Police Station Chauparan, District Hazaribagh Appellant Versus The [ENTITY] (Now Jharkhand) Respondent PRESENT HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE B.B. MANGALMURTI
For the Appellant : Mr. [ENTITY], Advocate For the State : Mr. [ENTITY], APP
C.A.V. on 05th December, 2018 Pronounced on 16th January, 2019 [ENTITY], J.:- Heard learned counsel for the appellant and learned counsel for the State.
2. Sole appellant is aggrieved by the impugned Judgment of conviction under [SECTION] of the [ACT] dated 28th June, 1993 and Order of sentence dated 3rd July, 1993 imposing sentence to undergo life imprisonment passed by the 3rd Additional Sessions Judge, Hazaribag in [CASE NUMBER].
3. The prosecution case was instituted on the basis of the fardbeyan of the Informant [ENTITY] recorded by S.I., [ENTITY] Chauparan P.S. on 28.07.1989 at village Kubari at 12.00 noon wherein she stated that today in the morning at about 7 a.m. [ENTITY] came to her village Bherwa, P.S.Itkhori, District Hazaribagh and informed that her parents were murdered in the previous night by unknown person. On getting such information, she rushed to her Naihar where she found the dead bodies of her father and mother lying in a pool of blood on two separate cots in the inner Verandah. It is further stated that the father of the informant were two brothers, the elder being [ENTITY]. Her father had about five/six acres of land which was
-2- [CASE NUMBER] being ploughed by him but due to old age, he intended to transfer his land to her daughter and son-in-law as she was the only issue of her parent. After knowing this intention, her cousin brother accused [ENTITY] became angry and threatened and assaulted her father. Her cousin did not like that the land of her father would be transferred to her. She further stated that about 2/3 months ago when her husband came to see her parents, her cousin accused [ENTITY] and [ENTITY] had suspicion that husband of informant had come for effecting transfer of the land in his name, so they confined him in a room and assaulted. Her husband was released on the condition that he would not come again to the village and he would not take step for transfer of the land in his name otherwise he would be killed. It is further stated that a month ago, her father told that after some time he will go to court and will transfer all his lands. When accused [ENTITY] and [ENTITY] knew this fact they threatened her father and forbade him from transfer of land in the name of her daughter and son-in-law. It is claimed in the F.I.R. that accused [ENTITY] and [ENTITY] murdered her father and mother with sword in the night while they were sleeping. It is further stated that accused [ENTITY] confessed his guilt and handed over sword concealed in the maize field before the witnesses which was used in killing the parents of the informant.
On the basis of the written report of the informant, [CASE NUMBER], corresponding to [CASE NUMBER], was instituted for the offences under [SECTION] of the [ACT], against the accused persons and investigation was taken up. After investigation, the police submitted charge-sheet in the case.
4. After commitment of the case to the Court of Sessions, charges were framed against accused persons for the offence under [SECTION] of the [ACT] upon which the accused persons pleaded not guilty and claimed to be tried.
5. During course of trial, seven witnesses were examined in which four witnesses were on behalf of prosecution and rest three were court witnesses.
-3- [CASE NUMBER]
6. P.W.1 Dr. [ENTITY] stated in his evidence that on 28.07.1989 he held autopsy on the dead body of [ENTITY] and found following injury :-
(A). On external examination (i) incised wound on left side of head placed obliquely from left side of forehead to left ear crossing mastoid region measuring 6"x 2"x 4"
(ii) a lacerated wound on anterior part of head 1' x " x 1 ".
(B). On internal Examination:- (i) Skull bone of head on left side cut and fractured resulting in the brain material coming out and causing profuse bleeding. (ii). Skull bone of head on anterior part fracture. (iii). All the internal vital organs pale. (iv). Left chamber of heart empty and right chamber full. In the opinion of P.W.-1 death occurred due to shock profuse hemorrhage and stoppage of functions of internal vital organs due to head injury resulting into cardio respiratory failure.
This witness has stated that on the same day he held autopsy on the dead body of [ENTITY] wife of late [ENTITY] and following ante-mortem injuries were found:
(A) On External Examination (i) Incised wound on left side of head placed obliquely with brain material coming out 4"x1 "x3". (ii) Incised wound on left cheek below left eye measuring 1"x1/4"x1/4". (iii) Cut wound on dorsum of left ring finger measuring "x1/4"x1/4" with fracture of bone of left ring finger. (iv). Cut wound on dorsum on middle finger of left hand of the size of "x1/4"x1/4".
(B) On Internal Examination :- (i) Skull bone of head left side cut and fractured causing profuse haemorrhage and brain materials were coming out of the vault. (ii). All the internal vital organs pale. (iii) Stomach contains undigested food. (iv) Bladder empty (v) Uterus empty.
The death was caused due to shock and profuse haemorrhage, injuries to the brain and stoppage of functions of vital organs of the body resulting into cardio respiratory failure.
Both post-mortem reports have been proved as Ext.1 and Ext.1/2.
7. P.W.2 [ENTITY] has admitted his signature on the search list marked as Ext.2. He also proved his signature as Ext.2/1 and on inquest report as Ext.2/2. During cross-examination, this witness did not support the recovery of blood stained [ENTITY] or anything from the house of accused [ENTITY].
8. P.W.3- [ENTITY] is another signatory of inquest report which has been marked as Ext.2/3 He has also proved his signature on seizure list marked as Ext.2/4 and signature of [ENTITY] as Ext.2/5. He was declared hostile and was cross examined by the prosecution.
-4- [CASE NUMBER]
9. P.W.4- [ENTITY] heard about murder from [ENTITY] and [ENTITY] who were going to police station and on being asked replied that their uncle and aunt were murdered. He went to the place of occurrence after two hours and saw the dead body. He was declared hostile. During cross-examination, stated that the house of accused is sitauted at the distance of about one pole from his house.
10. C.W.1-[ENTITY], Informant of this case was examined as court witness and she supported the prosecution version about knowledge of murder from [ENTITY]. She reached her Naihaer and found the dead bodies in pool of blood. She started crying after seeing, the police arrived and recorded her statement upon which she put her thumb impression. She also stated that in front of her, [ENTITY] handed over the blood stained sword which was concealed in the maize field and [ENTITY] admitted before the police that at the instance of his father [ENTITY], he had murdered parents of informant. The reason behind the murder was that her father wanted to convey the share of his land to his son-in-law being husband of informant and her uncle [ENTITY] and his both son [ENTITY] and [ENTITY] were of the view that those lands should have been given to them instead of husband of the informant. She also deposed that a month earlier to the occurrence, the deceased called the husband of informant that the land could be transferred in his favour. Accused persons came to know about the intention of transfer then they threatened the deceased. She recognized accused persons present in the court. In her cross-examination, she has stated that her father and uncle [ENTITY] were separate in mess and residence before her birth. Her father was working in ECL and after retirement his son-in-law (husband of informant) got employment in his place. During cross-examination on behalf of accused persons, she replied that five months before the occurrence, accused persons had assaulted her husband and had threatened him but no sanha or case was lodged. She volunteered that since they were relatives so no case was lodged. She also stated that the police had recorded her statement and the blood stained sword was
-5- [CASE NUMBER] recovered from the maize field. After recovery of sword and [ENTITY], police had prepared the paper upon which she also gave her thumb impression. She denied the suggestion that her husband was involved in a murder case of Kasiadih village. She also denied the suggestion about false implication of accused persons.
11. C.W.2- [ENTITY] is son-in-law of the deceased and husband of the informant. He has also corroborated the fact as deposed by C.W.1.-Meera [ENTITY]. He stated that his father-in-law and mother-in-law were murdered about three years ago. When his father- in-law fell ill then on his visit, expressed his desire to transfer the land in his favour. At that time, accused persons [ENTITY], [ENTITY] and [ENTITY] were also present and they threatened his father-in- law of dire consequences. [ENTITY] and [ENTITY] both brother called this witness to their residence and after confining, assaulted him with threatening that if he would further visit this village then he will be killed. Only on his undertaking, he could manage his release. He also stated that after getting the news of murder of father-in- law and mother-in-law, he went there. His wife informed that in her presence [ENTITY] has given blood stained sword to the police which was kept in a maize field as well as admitted of committing murder. His blood stained [ENTITY] was also seized by the police. He denied the suggestion that he is deposing false and no threatening was given by the accused persons.
12. C.W.3- [ENTITY] is a Clerk in prosecution office who has formally proved the [ENTITY] as Ext.3, Formal F.I.R. as Ext.4, Inquest report Ext.5, Seizure list as Ext.6, and Search list as Ext.7. Requisition as Ext.8 and signature of [ENTITY] of Chouparan P.S. as Ext.9. Entire case diary has been marked as Ext.10. During cross-examination, this witness stated that all these exhibits were not prepared or signed before him nor was aware of its content.
13. After closure of prosecution evidence, the statement of accused persons were recorded under [SECTION] of the [ACT]
14. The defence has not examined any witness on their behalf.
-6- [CASE NUMBER]
15. The court below on consideration of the evidences found [ENTITY] guilty under [SECTION] of the [ACT] and acquitted accused [ENTITY] and [ENTITY] by giving benefit of doubt.
16. Learned counsel for the appellant [ENTITY] submitted that it is a case of circumstantial evidence and chain of circumstances have not been found complete so the court below has acquitted two accused and found guilty only the appellant merely on the basis of recovery of blood stained sword and [ENTITY]. Both these articles were not sent for forensic examination, as to whether it contained human blood. Even [ENTITY] has not been examined as witness who informed about the murder to the informant. He also submitted that as per the Hindu Law, no transfer of land was necessary as the informant was only heir entitled to inherit the property of her parents. The prosecution tried to establish that the motive behind the murder was due to land dispute as the land was to be transferred, but no such transfer had taken place. Appellant or other accused persons would not get any portion of that land if murder is committed by them. It is further submitted that Investigating Officer has not been examined in this case and the case diary has been proved by a formal witness which could not be used as per law. No evidence has been brought on record about the reason for non-examination of the I.O. Mere recovery of sword at the instance of the appellant is not sufficient to prove that the murder was committed by the appellant. Learned counsel further submitted that sword and [ENTITY] were not produced before the court or was sent to serologist and the same was used in commission of murder. He also submitted that seizure list witnesses became hostile and deposed that at the instance of the appellant nothing was recovered. Hence, the prosecution has failed to prove recovery of [ENTITY] from the house of the appellant.
17. Learned counsel for the State submitted that as per seizure list witness, the sword and the [ENTITY] of appellant were recovered and the doctor has also found sharp cut injury upon both deceased which
-7- [CASE NUMBER] proved that the sword was used in commission of the murder. Appellant had admitted his involvement before the police and other witnesses. The trial court has rightly convicted this appellant who was instrumental in commission of the murder with a motive to grab the land of deceased.
18. Having heard learned counsel for the appellant as well as on behalf of State and on the scrutiny of the evidences adduced in this case and looking to the lower court record, it appears that out of seven witnesses, P.W.1- Dr. [ENTITY] is a doctor who had conducted the post-mortem examination. P.W.2-[ENTITY], P.W.3- [ENTITY] are witness of inquest report as well as seizure list witness but they have not supported the prosecution case and were declared hostile by the prosecution. P.W.4- [ENTITY] was hearsay witness and also not supported the prosecution case. Informant of this case, [ENTITY] and her husband [ENTITY] have been examined as court witness nos.1 & 2 and both supported the prosecution version but admittedly both are not eye witness. C.W.3 is a formal witness who has proved [ENTITY] as Ext.3, Formal F.I.R. as Ext.4, Inquest report Ext.5, Seizure list as Ext.6, and Search list as Ext.7. Requisition as Ext.8 and signature of [ENTITY] of Chouparan P.S. as Ext.9. Entire case diary has been marked as Ext.10. This witness is a Clerk in the office of prosecution and is a formal witness. Therefore, the evidence of informant and its corroboration by her husband are only evidence produced in support of prosecution but these witnesses are not eye witness and have indicated the circumstances led to commission of murder but the chain is not complete. No independent witnesses have deposed in support of the prosecution version. Recovery of sword and [ENTITY] at the instance of appellant, were not supported by any independent witness including seizure list witnesses. Non-examination of material witnesses including I.O. of this case caused fatal impact on the prosecution case. The prosecution could not be able to prove its case beyond all reasonable doubt. Hence, the appellant deserves to be extended the benefit of doubt.
-8- [CASE NUMBER] In the case of [PRECEDENT] while considering as to when conviction can be passed on circumstantial evidence the principles have been summarized which are reflected herein under :-
"8. There is no eyewitness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide [PRECEDENT]. The same view was reiterated in [PRECEDENT]."
So far as extra judicial confession which also forms the basis of conviction of the appellant is concerned it would be apt to quote from the said judgment the following :-
"18. Principles in respect of evidentiary value and reliability of extra- judicial confession have been summarized by this Court in [PRECEDENT] which reads as under: (SCC pp. 412-13, para 16) "(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law.
19. Extra-judicial confession is a weak piece of evidence and the courts are to view it with greater care and caution. For an extra-judicial confession to form the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. In the case on hand, extra-judicial confession allegedly made to PW 12 does not inspire confidence and cannot form the basis for the conviction."
Thus the prosecution has miserably failed to prove its case as the circumstantial evidence which has much been harped upon by the learned trial court seems not to point to the guilt of the appellant and so far as the extra judicial confession is concerned the same is a very weak piece of evidence which the prosecution has failed to strengthen and
-9- [CASE NUMBER] absence of any substantive evidence would definitely entail the appellant to be given benefit of doubt.
19. For the foregoing reason, the impugned judgment of conviction dated 28th June, 1993 and Order of sentence dated 3rd July,1993 passed by the 3rd Additional Sessions Judge, Hazaribag in [CASE NUMBER] convicting and sentencing appellant [ENTITY] under [SECTION] of the [ACT], are hereby, set aside so far this appellant is concerned extending the benefit of doubt to Appellant- [ENTITY] and he is acquitted of the charge.
20. In the result, this appeal is allowed. Since the appellant is on bail, he is discharged from the liabilities of his bail bond.
21. Let the Lower Court Record be returned to the court concerned along with copy of this judgment.
([ENTITY], C.J.) ([ENTITY], J.) Jharkhand High Court, Ranchi Dated, the 16th January, 2019 [ENTITY]