Allowed

Dewa Pahadia And Anr. v. State of Jharkhand

Jharkhand HC3 Mar 2020Cr.A(DB)/30/2002

Case brief

AI extract

What is this about?

In an appeal against a murder conviction, the High Court held that the prosecution failed to prove the chain of circumstances relying on last-seen-together evidence. The absence of motive, doubts regarding the delay in the FIR, and lack of corroboration for the extra-judicial confession led the court to acquit the appellants.

What did the court decide?

Appellants acquitted of charges under Section 302 and 201 IPC; discharged from liability of bail bonds.

Dewa Pahadia And Anr. Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) --------Cr. Appeal (D.B.) No. 30 of 2002

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……….

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( Against the judgment of conviction and order of sentence both dated 05.12.2001, passed in Sessions Case No.50 of 1999/61 of 2001 by the learned Additional Sessions Judge-I, Godda )

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Dewa Pahadia,

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Rupa Pahadia

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Both sons of late Surya Pahadia, resident of village-Baridih, P.S. Bourijore, District Godda. ..... Appellants

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..... Appellants

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Versus

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The State of Jharkhand

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...... Respondent

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PRESENT

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HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellants : Mr. Mahesh Tewari, Advocate Ms. Aprajita Bhardwaj, Amicus For the Respondent-State : Mrs. Vandana Bharti, Spl. PP

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J U D G E M E N T

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Per, Shree Chandrashekhar, J. Dated: 3^rd March, 2020 Oral Order

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Dewa Pahadia and Rupa Pahadia were named as the assailants of her husband by the informant in her fardbeyan which was recorded early morning on 23.12.1998. On the basis of her fardbeyan , Bourijore P.S. Case No. 97 of 1998 was registered under section 302/201/34 IPC against them.

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In Sessions Case No. 50 of 1999/61 of 2001, the appellants were convicted and sentenced to R.I for life and fine of Rs. 10,000/- under section 302 IPC for committing murder of Munshi Soren in furtherance of common intention and R.I for 7 years and fine of Rs. 5,000/under section 201 IPC for causing disappearance of the dead-body of Munshi Soren.

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During the trial the prosecution has examined 11 witnesses; the informant is P.W.7.

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Munshi Soren has died a homicidal death is proved by the medical evidence. Dr. Arvind Kumar Singh who has been examined during the trial as P.W.11 has conducted the post-mortem examination on 23.12.1998 at 1:10 p.m. He has found five external injuries on Munshi Soren, one of which was an incised wound on the left knee joint. In the opinion of the doctor except the injury no.4 other injuries were caused by lathi, stone etc. and during his cross-examination he has stated that the injury no. 4 is not possible by stone.

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The case of the prosecution is based on circumstantial evidence and extra-judicial confession of the appellants before P.W.1, P.W.4, P.W.6, P.W.7 and P.W.8.

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In a case based on circumstantial evidence the prosecution is required to lead cogent and consistent evidence to prove the incriminating circumstances against an accused and to prove that the chain of circumstances is so complete that it leads to an irresistible conclusion that the accused and nobody else has committed the crime and excludes every reasonable hypothesis of innocence of the [refer, “Hanumant Govind Nargundkar Vs. State of M.P.” reported in AIR 1952 SC 343 ].

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Mrs. Vandana Bharti, the learned Special PP submits that the prosecution has led evidence through P.W.6 and P.W.7 to prove that Munshi Soren was lastly seen in the company of the appellants and the medical evidence would establish that immediately thereafter he has been killed and therefore complicity of the appellants in the crime stands proved.

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The doctor who has conducted the post-mortem examination has stated during his cross-examination that the dead-body was in a decomposed state and in his opinion the time elapsed since death was about 72 hours (approx). The medical evidence thus would indicate that Munshi Soren was done to death in the intervening night of 20/21.12.1998. Such evidence would satisfy the proximity test as contended by the

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learned APP, but the question is who has committed murder of Munshi Soren.

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When a person is found lastly in the company of an accused and immediately thereafter his dead-body is recovered a strong suspicion would arise on complicity of the accused and it may be inferred that the accused has committed murder of the person, but then, there are other aspects also which have to be kept in mind and one thing which also bear in mind is that only on the basis of last-seen-together evidence an accused cannot be convicted for an offence like murder. Therefore, on missing of Munshi Soren from 20.12.1998 and before his dead-body was recovered allegedly at the instance of the appellants the incidents which have taken place need to be considered.

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The informant who is wife of Munshi Soren has stated in her fardbeyan that on a Sunday (which was 20.12.1998) at about 7:00-8:00 a.m Dewa Pahadia came to her house and asked her husband to come along for plucking ‘barbati’ crop. Her husband accompanied him but did not come back home on Sunday and therefore on Monday at about 5:00 p.m she had gone to the house of Dewa Pahadia to make inquiry about her husband. According to the informant Dewa Pahadia told her that after the work her husband had gone home after taking wages. On Tuesday she goes to village Sijuwa and informs her relative Rasik Lal Kisku about missing of her husband. They searched for Munshi Soren in the village however he was not found there. She has told Rasik Lal Kisku about her husband going with Dewa Pahadia on Sunday for plucking barbati. So, alongwith several villagers Rasik Lal Kisku came to the house of Dewa Pahadia and enquired about Munshi Soren from the appellants. They told them that they have killed Munshi Soren and thrown his dead-body in Chandan Pahadia (Hills). The villagers asked them to show the place where they have thrown the dead-body and that is how the dead-body of Munshi Soren has been recovered.

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Rasik Lal Kisku has been examined as P.W.1. In his evidence he has stated that after recovery of the dead-body of Munshi Soren he sent information to the police through the Chaukidar and when the police

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arrived there Dewa Pahadia was handed over to the police. He has stated that the informant had visited him in early morning, about 10:00 a.m, on Tuesday and he has sent the Chaukidar to the police-station and by 2:00 p.m the police had arrived there. According to him all this has happened on Tuesday; that was 22.12.1998. He further says that the police has taken Dewa Pahadia to the police station on the same day and on that day itself statement of the informant was recorded by the police which is the fardbeyan of the informant and he has proved his signature over the fardbeyan which was marked as exhibit 1/1.

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From the evidence of P.W.1 two things appear; fardbeyan was recorded on 22.12.1998 and the inquest report was also prepared on the same day. However, the fardbeyan and the inquest report which were tendered in evidence where prepared on 23.12.1998.

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The informant has also deposed in the court that she had gone in search of her husband to Sijuwa village on Tuesday i.e. on 22.12.1998. Same day Rasik Lal Kisku alongwith several villagers had come to her village, made inquiries from the appellants and the dead-body of her husband was recovered. She has further stated that the police had arrived in her village the same day and Deva Pahadia was taken into custody. In her cross-examination she has again stated that she alongwith Rasik Lal Kisku had gone to the house of Dewa Pahadia on Tuesday.

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From the evidence of these witnesses, it is thus apparent that after recovery of the dead-body on 22.12.1998 the police had arrived at the place of occurrence, prepared the inquest report and taken Dewa Pahadia into custody but a First Information Report was lodged the next day. The investigating officer has admitted that he has visited the place of occurrence on 22.12.1998 and after recovery of the dead-body came back to the police station. He has further admitted that on the basis of an information received in the police station before he proceeded from the police station Sanha No. 348 dated 22.12.1998 was lodged by him. But, there is no explanation by the prosecution why a First Information Report was lodged on 23.12.1998 and the documents prepared on 22.12.1998 bear a different date. The importance of prompt registration of a first

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information report in a criminal case has been emphasized by the Supreme Court in “Thulia Kali Vs. The State of Tamil Nadu” reported in (1972) 3 SCC 393, as under:

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“ 12. ........First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.....”

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The controversy on arrest of Dewa Pahadia has also created a doubt that the appellants were falsely implicated in the case. P.W.1 has stated that he alongwith Lal Murmu, Mistri Hembram, Prakash Murmu and Doman had gone to make inquiry from the appellants and they have kept Dewa Pahadia in confinement and after the police came there he was handed over to the police but Lal Murmu, Mistri Hembram, Prakash Murmu, Doman and the Chaukidar have not been examined during the trial. P.W.6 who is daughter of the deceased has stated that 10-12 persons of village Sijuwa had gone to the house of Dewa Pahadia to make inquiry about her father. But in her cross-examination she has said that she does not know name of those persons. The informant has spoken on the similar lines and she has also failed to disclose name of the villagers who have gone with her to make inquiry from Dewa Pahadia. The investigating officer has stated that near Chandan Pahar few villagers had confined Dewa Pahadia and the next day he has brought him to village Baridih.

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The prosecution story of involvement of the appellants in the crime is further weakened by evidence of the witnesses on recovery of the dead-body.

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P.W.1 in his cross-examination has admitted that the place wherefrom the dead-body of Munshi Soren was recovered is a

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thoroughfare, there is a pucca road leading to Mahadev Bayan and vehicles ply on the road. He has further admitted that cattle graze near the place of occurrence. In this context it needs to be recorded that the incident has happened sometime in the intervening night of 20/21.12.1998 and the dead-body was recovered in the afternoon of 22.12.1998 but before that nobody has seen the dead-body.

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In a case based on circumstantial evidence motive becomes important in as much as it may provide an additional link in the chain of circumstances [refer, “Surinder Pal Jain v/s Delhi Administration” reported in (1993) Supp. (3) SCC 681 ]. But in the present case the prosecution has failed to establish any motive on the part of the appellants for committing murder of Munshi Soren.

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The prosecution witnesses particularly P.W.4 who is a co-villager, P.W.6 who is daughter of the deceased and P.W.7 who is wife of the deceased have not stated anything about enmity between the appellants and the deceased. P.W.4 has stated that relation between the appellants and the deceased was cordial and there was no dispute or quarrel between them. The daughter of the deceased has though stated that her father had a land dispute with the appellants but in the same breath she has said that her father never complained against the appellants. The informant has also stated that her husband had never made any complain against the appellants

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On admissibility of extra-judicial confession of the appellants before the prosecution witnesses, Ms. Aprajita Bhardwaj, the learned Amicus has referred to a judgment “State of Rajasthan Vs. Raja Ram”, reported in (2003) 8 SCC 180 .

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The extra-judicial confession of an accused is admissible in evidence and if the Court is satisfied about voluntariness and truthfulness of the confession conviction of the accused can be recorded on the basis of his extra-judicial confession. But, if the facts and circumstances surrounding the confession reflect a doubt on voluntariness of the confession, the court may refuse to accept it. “ Pakkirisamy Vs. State of T.N” reported in (1997) 8 SCC 158, it has been

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held that as a rule of caution the courts may look for an independent reliable corroboration before placing any reliance upon the extra-judicial confession of an accused. In “ Alok Nath Dutta and ors. Vs. State of West Bengal” reported in (2007) 12 SCC 230, the Hon’ble Supreme Court has observed that the main features of a confession must be verified and if the Court is satisfied about the truthfulness and voluntariness of the confession on the sole basis of the extra-judicial confession of an accused a conviction can be recorded.

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The learned Special PP has contended that during their cross-examination the prosecution witnesses have denied the suggestion that the appellants were assaulted by the villagers and while so, it must be concluded that the appellant-Dewa Pahadia has voluntarily confessed the crime before the prosecution witnesses.

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P.W.8 who is an independent witness has stated in his examination-in-chief that when the appellants did not say anything about Munshi Soren, the villagers had scolded him and thereafter Dewa Pahadia told them that he has killed Munshi Soren and thrown his dead-body in Chandan Pahar. P.W.4 has stated that Dewa Pahadia was confined by the villagers and P.W.6 and P.W.7 have also stated that he was apprehended by the villagers. These witnesses have stated that Dewa Pahadia has admitted before them that he has killed Munshi Soren, but as observed by the Supreme Court in “Raja Ram” (supra) this has to be kept in mind that P.W.6 and P.W.7 are close relatives of the deceased. appellant-Dewa Pahadia has set-up a defense that when he was returning home via village- Sijuwa he was apprehended by Rasik Lal Kisku and others on a suspicion that he has killed Munshi Soren. The trend of cross-examination of the prosecution witnesses would also suggest that the so-called extra-judicial confession of Dewa Pahadia is a result of coercion and force. It has come on record that after Munshi Soren had gone missing the appellants did not abscond. They were found in their house on 22.12.1998 and even when the villagers questioned them about Munshi Soren they did not try to flee away. Under such circumstances it is highly unlikely that Dewa Pahadia and his brother who had no motive

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have voluntarily disclosed before the prosecution witnesses that they have killed Munshi Soren. The confession of the appellants as described by the prosecution witnesses does not give details about the occurrence, such as, time of occurrence, manner of occurrence, place of occurrence etc. It becomes highly suspicious also for the reason that it is not supported by any other independent evidence. On such facts, the extra-judicial confession of Dewa Pahadia before P.W.1, P.W.4, P.W.6, P.W.7 and P.W.8 cannot be acted upon to record conviction of the appellants for committing murder of Munshi Soren.

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In the final analysis, we find that the prosecution has failed to produce cogent and consistent evidence to prove the incriminating circumstances against the appellants. The chain of circumstances is not complete and, therefore, it must be held that the prosecution has failed to prove the charges under section 302/34 and section 201 IPC against the appellants.

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The appellants are acquitted of the criminal charges framed against them in Sessions Case No. 50 of 1999/61 of 2001.

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The appellants are on bail and, therefore, the appellants, namely, Dewa Pahadia and Rupa Pahadia shall stand discharged of liability of the bail-bonds furnished by them.

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Cr. Appeal (D.B.) No. 30 of 2002 is allowed.

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We record our appreciation for Mr. Mahesh Tewari, the learned counsel and Ms. Aprajita Bhardwaj, the learned Amicus, for their able assistance to the court.

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The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amici as per Notification dated 23.11.2017. 30. Let the lower-court records be sent to the court concerned, forthwith.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated: 03.03.2020 R.K.M/N.A.F.R.

Dewa Pahadia And Anr. v. State of Jharkhand

Case brief

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Dewa Pahadia And Anr. v. State of Jharkhand

Case brief

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