The State of Jharkhand Vs Kishun Sao

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Death Reference No. 1 of 2021

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The State of Jharkhand … Appellant(s).

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Versus

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Kishun Sao, aged about 43 years, son of late Amrit Sao

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Sitaram Sao, aged about 40 years, son of late Amrit Sao

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Dulari Devi, aged about 35 years, wife of Kishun Sao

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Parwati Devi, aged about 35 years, wife of Sitaram Sao All residents of village Chandwara, PO Koderma, PS Chandwara, District Koderma, Jharkhand … Respondent(s).

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With

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Cr. Appeal (D.B.) No.97 of 2021

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Kishun Sao, aged about 43 years, son of late Amrit Sao

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Sitaram Sao, aged about 40 years, son of late Amrit Sao

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Dulari Devi, aged about 35 years, wife of Kishun Sao

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Parwati Devi, aged about 35 years, wife of Sitaram Sao All residents of village Chandwara, PO Koderma, PS Chandwara, District Koderma, Jharkhand … Appellant(s).

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Versus

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The State of Jharkhand … Respondent(s).

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PRESENT SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J.

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-----For the Appellant(s) : Mrs. Priya Shrestha, Spl.PP [in D. Ref. No. 1 of 2021] Mr. Naveen Kumar Jaiswal, Advocate Mr. Akhouri Awinash Kumar, Advocate [in Cr. A. (DB) No. 97 of 2021] For the Respondent(s) : Mr. Naveen Kumar Jaiswal, Advocate Mr. Akhouri Awinash Kumar, Advocate [in D. Ref. No. 1 of 2021] Mr. Shailendra Kumar Tiwari, Advocate [in Cr. A. (DB) No. 97 of 2021]

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J U D G M E N T

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CAV on : 24^th July 2024 Pronounced on : 08/08/2024

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Per Ananda Sen, J. : This Death Reference and the connected Criminal Appeal arises out of judgment of conviction dated 04.03.2021 and order of sentence dated 25.03.2021 in Sessions Trial No. 89 of 2018 whereby and whereunder learned Additional Sessions Judge-I, Koderma convicted the appellants under sections

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302/34, 201/511 and 120-B of the Indian Penal Code and sentenced them to death with fine of Rs. 20,000/- each and in default of payment of fine, further SI for one year for the charge under section 302/34 of the Indian Penal Code and RI for two years with a fine of Rs. 1,000/- each, and in default of payment of fine, further SI for 3 months for the charge under section 201/511 of the Indian Penal Code.

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The learned counsel for the appellants submitted that there is no eye-witness to the occurrence. Based on the circumstantial evidence these appellants have been convicted. The trial Court failed to take into consideration the deposition of the defence witnesses and also of PW2 who had stated that the deceased had committed suicide. He argued that the appellants Sitaram Sao and Parwati Devi who are the uncle and aunt of the deceased do not reside with them, thus there are no material to suggest that they were involved in the occurrence. In absence of any direct evidence, no adverse inference could have been drawn against these appellants of committing murder of the deceased. He contended that only considering that this is an honour killing by the family members of the deceased they have been convicted. The trial Court also failed to take into consideration the evidence of the prosecution witnesses who stated that because of the torture meted out by the husband of the deceased, she had committed suicide.

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On the point of the sentence, the learned counsel for the appellants submits that the trial Court has imposed death penalty on the appellants which was not as per the guidelines laid by the Apex Court. This case cannot be said to be a case which falls under the “rarest of the rare” case. Further mitigating circumstances for awarding death sentence has also not been considered by the trial Court. On the aforesaid ground the

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learned counsel appearing on behalf of appellants submits that this appeal needs to be allowed.

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The learned counsel for the State submits that the evidence is consistent in this case that daughter of the appellant nos. 1 and 3 eloped with PW7 Pradeep Sharma and they married. When they returned to the village the girl was taken by her parents and her uncle and aunt who are the appellants. A panchayati was supposed to be held, but before that, the girl died. The fact that the girl died was not disclosed to anyone. The dead body surreptitiously was taken to the Burning Ghat and the family members were trying to burn the dead body, thereby destroying the evidence, but the police intervened and recovered the dead body. The death is homicidal and the doctor opined that the same is due to asphyxia and found manual pressure mark on neck. It is his contention that this is an honour killing at the instance of these appellants thus the trial Court has correctly convicted them under sections 302, 201/511 and 120-B of the Indian Penal Code. So far sentence is concerned he submits that a young girl was done to death by her parents only to maintain their honour thus the trial Court has correctly imposed capital punishment.

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The case of the prosecution is that on the basis of the fardbeyan of Sony Pratap, S.I., Chandwara Police Station (informant), Chandwara PS Case No. 22 of 2018 was recorded on 27.03.2018. According to the informant, after receiving information that a girl had been killed by her family members, he along with S.I. Sakib Tanveer, A.S.I Shanawaz Khan, Lady Constable Chand Sabita and other armed force and also, Circle Officer Chandwara, Md. Mozahid Ansari reached Burning Ghat. After seeing them 7-8 persons who were present there fled, leaving the dead body. In the meantime, Bhuneshwar Pandit

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husband of Karishma Kumari-Mukhiya, Pradeep Sharma and others arrived there. The villagers present there said that the deceased Soni Kumari and Pradeep Sharma had love affair. They fled to Rajasthan and solemnized marriage. After some time they returned. Kishun Sao-father, Dulari Devi-Mother, Sitaram Saouncle and Parwati Devi-aunt murdered Soni Kumari as they are against the inter-caste marriage. They had taken the dead body to Burning Ghat for cremation when the police party arrived and recovered the dead body which was sent for postmortem after preparation of inquest report.

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After investigation, the investigating officer submitted chargesheet on 13.06.2018 against the accused persons, namely, Kishun Sao, Sitaram Sao, Dulari Devi and Parwati Devi for the offence punishable under sections 302, 201/511 and 120-B of the Indian Penal Code.

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On the basis of chargesheet and materials available on record, Judicial Magistrate-I, Koderma took cognizance on 13.06.2018 for the offence punishable under sections 302, 201/511 and 120-B of the Indian Penal Code. The case was committed to the Court of Sessions where charges were framed and trial proceeded.

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To prove the prosecution case, altogether 16 witnesses were examined by the prosecution whose names are here under:-

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i. PW1 :- Bhuneshwar Pandit ii. PW2 :- Rani Kumari iii. PW3 :- Dr. Sandeep Kumar Singh iv. PW4 :- Guddu Sao v. PW5 :- Soni Pratap vi. PW6 :- Umesh Paswan vii. PW7 :- Pradeep Sharma viii. PW8 :- Raju Das ix. PW9 :- Sudhir Paswan x. PW10 :- Sagar Kumar xi. PW11 :- Md. Mojahid Ansari

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xii. PW12 :- Chand Savita Kumari xiii. PW13 :- Badudhan Murmu xiv. PW14 :- Shahnawaz Khan xv. PW15 :- Karishma Kumari xvi. PW16 :- M.S. Tanweer Khan

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P.W. 1 Bhuwneshwar Pandit has stated that the occurrence took place 6 months ago. Son of Mahendra Sharma and daughter of Kishun Saw had eloped. When they returned after 10-12 days, it could be gathered that they have solemnized marriage. He stated that he is an ex-Mukhia of the village and at present his wife is the Mukhia. It was a festive day. The boy and the girl went to their respective house. Thereafter he came to know that the girl has consumed poison. On receiving a phone call from police at about 12:30-01:00 p.m., when he reached at the Burning Ghat, he was informed that the family members of the girl had fled after seeing the police. The girl was wrapped in a cloth (kafan) and removing the same the police told that she had been killed by pressing her neck. He stated that he had seen scratch marks on the neck of the deceased. He proved the seizure list which was marked as Exhibit 1. Axe, one kudal, timber and one container of kerosene oil were among the seized materials. He also proved his statement recorded under Section 164 of the Code of Criminal Procedure, which was marked as Exhibit 1/1. Appellants had confessed before the S.P. in his presence that they have killed the girl. He has proved his signature over the inquest report, which was marked as ‘X’ for identification. He identified the appellants who were present in Court.

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P.W.2 Rani Kumari is the sister of the deceased. She stated that on the date of occurrence she was at home and had slept. She stated that her sister committed suicide by hanging. She has stated that her sister was having love affair with P.W.7 Pradeep Sharma and both had solemnized marriage. Her parents were

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not happy with their marriage. For cremating the dead body of her deceased sister, her parents and all family members had gone to the Burning Ghat. Police had reached there and she is unaware as to what happened thereafter. In her cross examination, she has stated that her uncle and aunt (appellant nos.2 and 4) reside separately.

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PW3 Dr. Sandeep Kumar Singh, who conducted the postmortem examination of the deceased-Soni Kumari on 27.03.2018 found the following:

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External Injuries :

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Neck-three abrasion mark seen at neck (front part)

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No petechial hemorrhage seen at neck. Abrasion at middle of neck (at left side of lower chin) Right leg- one abrasion seen at right leg near ankle.

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Internal Examination :

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A. Head – nothing specific (no bony fracture seen)

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Nose – blood mixed frothy discharge coming out of nose.

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B. Neck - Mouth, tongue & pharynx – tongue bite seen - Larynx & vocal cords – NAD - Condition of neck tissues – NAD

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Thyroid & other cartilage conditions – no bony fracture seen of hyoid bone. On cut section congested vessels present with dark venous blood seen.

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Trachea – NAD

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C. Chest

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Ribs and chest wall – NAD - Oesophagus – NAD - Trachea & Bronchial Tree – NAD - Pleural Cavities - Lungs findings & Wt. Congested seen

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Pericardial Sac. – Congested filled with clotted blood.

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D. Abdomen – All organs congested - Condition of abdominal wall

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Peritoneum & Peritoneal cavity

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Stomach (wall condition, contents & smell) – congested semi digested viscus fluid present inside gastric cavity.

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Small intestines including appendix - Large Intestines & Mesentric vessels

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Liver including gall bladder – congested

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Spleen – congested

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Pancreas

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Bladder & Urethra – Empty

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Pelvic cavity tissues – uterus small (in size 1.5 inch x 3 inch x 5 inch) and cavity shows gelatinous blood mixed substance present on cut section.

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Vagina – no mark of injury present. Hymen torn.

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The doctor opined that the deceased died because of Cardio Respiratory failure, due to asphyxia. He also opined that the injury marks seen on the neck may be caused by manual pressure over neck. The doctor also opined that the time of death is between 24 hours to 48 hours from the time of conducting the postmortem. The postmortem report was marked as Ext.2. In the cross examination he stated that there was no deep cut in the neck but only abrasion was present.

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P.W.4 Guddu Sao has been declared hostile.

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P.W.5 Soni Pratap is the informant of this case. He was posted as Officer-in-Charge, Chandwara Police Station on 27.03.2018. On receiving information that after killing a girl, her family members had taken her dead body for cremation, he along with other police personnel had proceeded to the place of occurrence. On his information, Circle Officer, Chandwara had also reached to the Burning Ghat. He stated that when the wrapped cloth was removed from the dead body of the deceased, he could see three marks of nail scratch over the neck of the deceased. It appeared that the deceased had been killed by pressing her neck. He was told by the villagers present there that the deceased was in love affair with Pradeep Sharma of same village and for solemnizing marriage they had eloped from their house about ten days ago. It was also told, that after pressure was exerted they returned and due to inter-caste marriage the family members of the deceased started pressurizing her and ultimately they killed her by pressing her neck. He stated that the Circle Officer had prepared the seizure list wherein one kudal (spade), two axes (tangi), Kerosene oil in one container,

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and pieces of wooden logs were seized. Inquest report was also prepared by the Circle Officer, which was marked as Exhibit 2. He proved the seizure list which was marked as Exhibit 3. He also proved his self-statement which was marked as Exhibit 4. The dead body was sent to the Sadar Hospital for postmortem and after returning he had lodged the formal FIR. He proved the endorsement which was marked as Exhibit 4/1. He identified the appellants, who were present in Court.

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PW6 Umesh Paswan did not support the case of the prosecution and he could not say anything about the occurrence.

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PW7 is Pradeep Sharma with whom the deceased solemnized marriage after she eloped. He stated that they eloped and went to Rajasthan where they got married and stayed there for 10 days. The appellants started torturing his family members as a result of which on 25.03.20218 they reached their village. Mukhiyaji met them when the family members of both the person reached. The appellants started giving threat of life to the girl when the villagers decided to hold panchayati on 27.03.2018. The girl went to her house and this witness went to his house. On 26.03.2018 Soni Kumari was murdered by their family members and when the body was taken to Burning Ghat the police reached. He stated that his statement was recorded under section 164 Cr.PC which was marked as Ext.5. In cross examination he stated that after reaching at the village, from Rajasthan Soni was alive for one day and one night and during that period she never visited his house. He admitted that he had not lodged any FIR in the police station about the fact that the deceased was tortured by her parents. He denied the fact that he forcefully had taken Soni Kumari (deceased) and was torturing her.

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PW8 Raju Das has signed the inquest report and seizure list which was marked as Ext.2/1 and 1/2 respectively. He stated that due to cruelty meted out to her by Pradeep Sharma and also due to social dignity she committed suicide.

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P.W.9 Sudhir Paswan and P.W.10 Sagar Kumar are the Constables who had accompanied P.W.5, Officer-in-Charge cum informant to the place of occurrence, i.e., Burning Ghat. They stated that they saw the dead body of a girl wrapped in a cloth was kept on a cot. The other materials they saw were a Kudal, two axes, kerosene oil in a 5 litre container and 8 pieces of timber having thickness of 2 feet and length of 5 feets. The cloth over the dead body was removed by P.W.12. Villagers Raju Das and Bhuneshwar Pandit had identified the dead body to be that of the deceased. The dead body and the materials lying there were taken into custody by the police. The place was highly crowded, but seeing the police, people fled from there. Seizure list was prepared by the Circle Officer.

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P.W.11 Md. Mojahid Ansari is the C.O., Chandwara. He stated that he had seen scratch mark over the neck and swelling in the right hand of the deceased. He proved the seizure list, which was marked Exhibit 3. He also proved the inquest report, which was marked as Exhibit 2.

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P.W.12 Chand Savita Kumari is the Constable who had removed the cloth from the dead body of the deceased by the order of the Circle Officer. She had seen nail marks at three places over the neck of the deceased and it appeared that the girl had been killed by pressing her neck.

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P.W.13 Badudhan Murmu is the Head Constable, who had also accompanied the Officer-in-Charge cum informant to the place of occurrence. He has stated in the same line as P.W.9, P.W.10 and P.W.12.

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P.W.14 Shahnawaz Khan is the ASI who also deposed in the same line as P.W.9, P.W.10, P.W.12 and P.W.13. He has also stated that he had seen nail marks at three places over the neck of the deceased and it appeared as if the deceased had been killed by pressing her neck.

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PW15 Karishma Kumari is the cousin sister of the deceased. She identified her signature on the statement recorded under section 164 of Cr.PC which was marked as Ext.6. In her cross examination, she has stated that on seeing nail scratch mark on the neck of the deceased she had a doubt that the deceased was murdered by her parents, uncle and aunt.

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PW16 M.S. Tanweer Khan is the investigating Officer. On 27.03.2018 on receiving information he along with other police officials went to Burning Ghat at village Mandan Gundi where Circle Officer Md. Muzahid Ansari reached later on. From the Burning Ghat amongst the persons who fled away, there was no female. He could not say as to whether the father and uncle of the deceased were present in the Burning Ghat or not. On seeing the dead body it was apparent that murder was committed by strangulating as there were three nail scratch marks on the dead body. He inspected the first place of occurrence. He arrested the accused persons and recorded the confessional statement of the accused Kishun Sao, Sitaram Sao, Dulari Devi and Parwati Devi who had confessed their guilt before him which were marked as Ext. 7, 7/1, 7/2 & 7/3. He identified the formal FIR which was marked as Ext.9. He did not find any blood stain in the house nor any sign of hanging on the body of deceased.

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Following documents have been exhibited :

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i. Ext.1 – Signature of Bhuneshwar Pandit on seizure list. ii. Ext.1/1 – Signature of Bhuneshwar Pandit on statement under 164 of Cr.PC.

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iii. Ext.1/2 – Signature of Raju Das on seizure list iv. Ext. 2 – Post-mortem Report

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v. Ext. 2/1 – Signature of Raju Das on inquest report vi. Ext. 2/2 – Inquest report vii. Ext. 3 – Seizure list viii. Ext.4 – Self statements

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ix. Ext. 4/1 – Endorsement on self-statement

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x. Ext. 5 – Signature of Pradeep Sharma on statement u/s 164 of Cr. PC

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xi. Ext. 6 – Signature of witness on statement u/s 164 of Cr.PC

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xii. Ext. 7 to 7/3 – Confessional statement of all four accused persons

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xiii. Ext.8 to 8/3 – Memo of arrest of all four accused persons xiv. Ext. 9 – Formal FIR

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xv. Ext. 10 – SFSL Report2237/18 dated 13.02.2020 xvi. Ext. 11 – SFSL Report dated 11.05.2020 xvii. Mark.X – Signature of witness on photo copy of inquest report.

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In support of the defence three witnesses were produced

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whose names are here under:

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i. DW1 :- Vijay Sao ii. DW2 :- Prakash Pandit iii. DW3 :- Rameshwar Sharma

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DW1 Vijay Sao stated that Soni Kumari and Pradeep Sharma had eloped from the village but they returned to the village. Due to social loss of dignity, parents of Soni Kumari did not lodge any case. Soni Kumari committed suicide due to torture of Pradeep Sharma. He further stated that in connivance of Pradeep Sharma with the police, a false case had been registered. He denied love marriage of Soni Kumari with Pradeep Sharma.

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DW2 Prakash Pandit stated that he heard that daughter of Kishun Sao had committed suicide but the police in connivance with Pradeep Sharma had lodged false case against the accused persons.

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DW3 Rameshwar Sharma deposed on the same line as DW2 that the case has been filed by Pradeep Sharma. In his cross examination he admitted that he did not go to Burning Ghat.

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After conclusion of the evidence, the statements of the appellants were recorded under Section 313 of Cr.P.C.

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Ultimately the Trial Court after hearing the arguments and appreciating the evidence found the appellants guilty and convicted them under sections 302/34, 201/511 and 120-B of the Indian Penal Code.

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After hearing the parties, I find that there is no eye-witness to the occurrence of murder. The entire case is based on circumstantial evidence. The cases which are based on circumstantial evidence needs to be scrutinized with caution. Each chain of circumstances should be proved and there should be link with each of the circumstances. The fact which is also admitted is that the death is unnatural.

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There are two versions: the prosecution case is that she was murdered by the appellants in her house i.e. homicidal death, whereas it is the case of the defence that she committed suicide.

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To assess as to what is the correct version, I have to heavily rely on the postmortem report. From the postmortem report which is at Ext.2, I find that the doctor found three abrasion marks on the neck, that too, on the front part. Abrasion was found in the middle of the neck and the left side of lower chin and on the right leg there was also an abrasion mark near the ankle. On the internal examination doctor found blood mixed froth discharge coming out from the nose. The doctor opined that the immediate cause of death was cardio respiratory failure due to asphyxia. The injuries are all ante-mortem and as per the inquest and the manner of injury, death is probably homicidal. The doctor also found that the injuries are sufficient to cause death in ordinary course of nature. He denied the suggestion that the death is not homicidal. The doctor did not find any ligature mark nor any ligature was found at the time of

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examination by the investigating officer. Thus there is nothing even to remotely conclude that the deceased had committed suicide.

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PW5 who is the officer-in-charge who had seen the dead body also found nail mark and scratches on the neck. He stated that after seeing this injury he was of the opinion that the death was homicidal and she had been done to death by pressing her neck. The defence tried to project the homicidal death to be suicide by hanging. PW2 who is the sister of the deceased stated that she was in the house but had gone to sleep when her sister committed suicide by hanging. DWs also stated that the deceased committed suicide.

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While evaluating the evidence on the point of cause of death, I find that the evidence of the DWs and PW2 who is the sister of the deceased is absolutely not trustworthy. No one had come forward to state that how she had committed suicide by hanging herself and with which material and where. The fact that the body was secretly taken to the Burning Ghat and they were trying to dispose of the body by cremating it also indicates that the case was not of suicide but of murder.

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Thus from the evidence led by the prosecution, evidence of doctor, postmortem report, statement of investigating officer, police official who had lodged the FIR, I am also of the concrete opinion that it is homicidal death due to asphyxia caused by manual pressure on the neck.

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Now the next question will be where is the place of occurrence. From the evidence of the prosecution there are two place of occurrence : one is the house of the parents of the deceased where she was done to death. The second one is the Burning Ghat where the body of the girl was taken for cremation from where the body was recovered by the police. PW1 had also

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stated that when the boy and girl returned to the village each went to their own house which also suggest that the girl went to her own house and was staying there. The first place of occurrence i.e. the house where the death occurred is admitted by the parties, as both the defence and the prosecution has admitted that she died in the house. So far as the second place of occurrence is concerned it is also established by the evidence of PW1 and PW3 that the body was taken for cremation and when it was about to be cremated the police and the administration intervened. PW1 is the erstwhile Mukhiya of the village who is an independent witness. He also deposed that on receiving information from the police he reached the Burning Ghat and found that the dead body of the girl was to be cremated. PW1 stated that he had also seen the marks on the neck of the deceased. Thus from the aforesaid evidence the second place of occurrence has been proved by the prosecution.

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Motive of committing offence, assumes significance in cases based on circumstantial evidence. The prosecution’s case is that the deceased alongwith PW7 had eloped; they married and returned to village. Once they returned to the village the appellants threatened them of dire consequences. PW7 in his evidence has stated that when they returned to the village, these appellants threatened the girl and the girl went with them. He has clearly stated that on 27.03.2018 a panchayati was scheduled to be held on the issue of their elopement and marriage.

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It is an admitted fact and has also come in the evidence that the deceased died on 26.03.2018. Thus she died before the schedule date of panchayati and on 27.03.2021 in a covert manner the body of the girl was tried to be cremated.

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From the evidence of the PW7, I find that there was animosity and bitterness in the mind of the appellants against

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the girl who had eloped and solemnized marriage. The fact that the parents were not happy with the marriage has been admitted by the sister of the deceased who is PW2. She stated that there was love affair between the deceased and PW7 and they had married and the parents were not happy with the same. This evidence suggests that there was a motive behind the occurrence. This motive gets strengthened from the fact that the girl was done to death the night before the panchayati was to be held.

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The defence has taken a stand that because of the torture meted out by PW7 who happens to be the husband the deceased she has committed suicide. Further, they had also taken a point that the girl was forced to elope with PW7 which is the result in the avenue leading to commission of the suicide. This theory also does not hold good in view of the evidence which has been led by the parties. The sister of the deceased PW2 has categorically and clearly stated that the girl eloped with the boy out of her own will and the marriage was also solemnized. She stated that there was love affair between the deceased and PW7 and the marriage was also held with the consent of the girl and the boy. PW7 who is the boy also narrated in the same line, he also stated that after they had eloped and married, the family members of the deceased were torturing his family members as a result of which they had to return. Thus the defence of the appellant that PW7 was torturing the deceased is without any basis but mere self-statement to save their skin. The plea of the defence that the deceased has committed suicide has already been negated by me in the foregoing paragraphs of this judgment. Thus the plea of the defence that the deceased committed suicide as a result of torture perpetuated upon her by the PW7 is nothing but a false statement.

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Now the next question is whether all these appellants were involved in the occurrence or not. The place of occurrence has been established i.e. the house of the appellants. It is true that there is no eye-witness to the said occurrence. PW2 was present in the house has also kept mum about the involvement of her parents, uncle and aunt– naturally so.

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There are two sets of appellants before us : one is the father and mother of the deceased and another is the uncle and aunt. So far as the evidence against the uncle and aunt is concerned i.e. Sitaram Sao and Parwati Devi is concerned, I find that PW1 the Ex-Mukhiya of the village in paragraph 12 has stated that the uncle and aunt of the deceased were residing in a separate house and they were having separate kitchen. PW2 who is the sister of the deceased also stated that her uncle and aunt were residing separately. Investigating officer has also stated that he has heard that uncle and aunt were living separately. Thus it can be safely concluded that Sitaram Sao and Parwati Devi were residing separately. None of the witnesses have stated that they were seen or found on the house i.e. first place of occurrence on the fateful night. Thus there is an element of doubt about involvement of these two appellants in committing murder of deceased.

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So far as Kishun Sao and Dulari Devi is concerned who happens to be father and mother of the deceased, I find that there is no evidence which remotely suggest that they were not present in the house at the time and date of occurrence. The prosecution witness have stated that when the deceased and PW7 returned to the village, these appellants had taken the girl to their house thus presence of the deceased in the house is established and the fact that Kishun Sao and Dulari Devi were residing in the house is also an admitted fact. It is also an admitted fact that a homicidal death occurred in the said house

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at night. As noted earlier there is no evidence to suggest that they were not present at the house on that night.

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Thus the prosecution has proved the case against these two appellants beyond all reasonable doubts. At this stage section 106 of the Evidence Act also comes to play. Section 106 of the Evidence Act reads as follows:

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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.

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Illustrations

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(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

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As held earlier there is clinching and overwhelming evidence that the deceased died a homicidal death and the death occurred in the house of these appellant nos. 1 and 3 and there was motive to commit murder and the murder was in fact an honour killing. Considering section 106 of the Evidence Act, the fact that how the deceased died, was within the exclusive knowledge of these two appellants and the burden of proving the fact that how the deceased died was also upon them. The appellant miserably failed to discharge their burden. It is true that there has to be some foundational evidence then only the burden will shift upon these two appellants which infact in this is there. The foundational fact which has been mentioned above are homicidal death, the motive and the place of occurrence have been proved by the prosecution by reliable and cogent evidence. Further there is evidence that these appellants with other were trying to dispose the body of the deceased secretly. When police and other witnesses arrived, they fled. Then in that situation the burden of proof was upon these two appellants to disclose about the facts leading to the cause of death. These appellants could not

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discharge the same rather they came up with a plea that the deceased committed suicide. This plea has been falsified from the evidence of the prosecution itself. False explanation is a circumstance which will definitely go against them. There is no other alternative theory than to come to a conclusion that it is these appellants who had committed murder of the deceased.

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This theory gets strengthen from the fact as to how these appellants were trying to dispose of the dead body in a most covert manner. Without informing the police they had taken the body to the Burning Ghat for cremation, when coming to know about the aforesaid, the Administration intervened. From the evidence, I also find that all these appellants were secretly trying to dispose of the body. This amounts to causing disappearance of the evidence of offence. This offence is punishable under section 201 of the Indian Penal Code. PW2 in her evidence had stated that her parents and all the family members had taken the body in the Burning Ghat to cremate the body.

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The fact that the body was tried to be cremated secretly is also established from the evidence of PW1 who also stated that when the police and he reached the Burning Ghat, all the family members of the deceased fled leaving the dead body. Investigating officer who is PW5 stated that he received information on 27.03.2018 that after committing murder the family members are taking a girl to cremate her. He came into action immediately and reached the place of occurrence. He also stated that he received information that the family members were trying to dispose of the dead body secretly. In paragraph no. 3 he stated that all the persons who were with the body fled. The materials which are necessary to burn the dead body was also found in the place of occurrence. PW8 is an independent witness and a villager and his agricultural field was next to the

¶136

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¶137

river. He is an eye-witness to the occurrence who saw that body was brought and preparation were made for its cremation. He stated that he had seen the father, mother, uncle and aunt present there. He also stated that at that point of time the police came when they all fled. He is an inquest witness also and also a witness to the recovery of the materials like kerosene oil, axe, shovel etc. His statement also suggest that these appellants tried to dispose of the body secretly. This evidence clearly establishes commission of the offence under section 201 of the Indian Penal Code so far as all these appellants are concerned. So far as the defence evidence is concerned they are absolutely not to be believed and they have been set-up by these appellants.

¶138

I came to this aforesaid conclusion based on the fact that all these witnesses have stated that the deceased committed suicide as she was been tortured by PW7. Further DW1 tried to portray a picture that the appellant no. 1 had gone out of the village to drive a vehicle but this fact has also not been substantiated. None stated as to when he went to drive and whose vehicle. Merely a bald statement has been made. DWs stated that the deceased was fed-up with her husband (PW7), but this fact has been negated by none other than the sister of the deceased (PW2). Thus all these DWs are not worth to be believed.

¶139

Thus considering what has been held above, I find that prosecution has been able to prove the guilt of the appellant nos. 1 and 3 beyond all reasonable doubt in commission of murder of their daughter. I find that the prosecution has also been able to prove that all the appellants were trying to dispose of the dead body secretly thereby trying to remove the evidence of crime. Thus their conviction under section 201/511 of the Indian Penal Code is also established.

¶140

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¶141

So far as appellant nos. 2 and 4 is concerned as held earlier, I find that there is reasonable doubt about their involvement in commission of murder. Thus when there is element of reasonable doubt the same should go in their favour. Thus they are acquitted for the charge under section 302/34 and 120-B of the Indian Penal Code. There is consistent evidence that all these appellants had taken part in secretly disposing of the dead body by cremating it. Thus the Court had rightly held all these appellant guilt of the offence under section 201 of the Indian Penal Code. I find no error in the judgment of the trial Court whereby all the appellants have been convicted under section 201/511 of the Indian Penal Code.

¶142

Now the question is of sentence since I have already held that the appellant nos. 2 and 4 cannot be held guilty of the offence under section 302/34 of the Indian Penal Code. Thus naturally they also cannot be sentenced for the aforesaid offence. Thus the capital punishment imposed upon them by the trial Court is set-aside. Since they have been found guilty of committing offence under section 201/511 of the Indian Penal Code this two appellants are sentenced for rigorous imprisonment for the period of five years.

¶143

So far as the appellant nos. 1 and 3 are concerned, I have already held that they are guilty of committing offence punishable under section 302/34 of the Indian Penal Code. The statute provides only two punishments where a convict has been found guilty of the aforesaid offence – it is imprisonment for life or death. In this case the trial Court has imposed death sentence upon the appellants.

¶144

To award death sentence the Court has to see various factors. The Hon’ble Supreme Court in “ Bhagwan Narayan

¶145

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¶146

Gaikwad v. State of Maharashtra ” reported in (2022) 14 SCC 459 has held as under:

¶147

“24. In the facts and circumstances of the given case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances of which the crime has been committed are to be taken into consideration and to be delicately balanced on the basis of the relevant circumstances in a dispassionate manner by the Court.”

¶148

The basic principle behind imposition of the death sentence is that it has to be awarded in the “rarest of rare” case. The aggravating as well as the mitigating circumstances are to be examined by the Court. The Hon’ble Supreme Court in the case of “ Bachan Singh v. State of Punjab ” reported in (1982) 3 SCC

¶149

24 has pointed out some of the aggravating and mitigating circumstances which should be taken into account. Pre-planned murder, extreme brutality, exceptional depravity are some of the aggravating circumstances pointed out by the Hon’ble Supreme Court. Further some mitigating factors have also been pointed out such as, the offence committed under the influence of extreme mental or emotional disturbance, age of the accused, the probability that the accused would not commit criminal act further, the accused can be reformed and rehabilitated and that in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence, act under duress or domination of another person, mental deformity which impaired his capacity to appreciate the criminality of his conduct. However, these list was not exhaustive and there may be other factors also.

¶150

It is needless to say that each case must be judged by the facts and circumstances emerged in that particular case. It is not possible to determine as to which case would fall in the category of the “rarest of rare” case. It is not even easy to mention

¶151

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¶152

precisely the parameters or aggravating/mitigating circumstances. There is no straight jacket formula.

¶153

While going through the evidence and also the judgment of the trial Court, I find that the offence committed by the appellants is under influence of extreme mental and emotional disturbance as their daughter left their house and married a person without their consent. They performed an inter-caste marriage without permission of their parents. Under the facts and circumstances as there is a pressure of society and caste thus the appellants believed that they are morally justified in committing the offence.

¶154

Hon’ble Supreme Court in the case of “ Dilip Premnarayan Tiwari v. State of Maharashtra ” reported in (2010) 1 SCC 775 has held that it is not the nature of the crime but the background of the criminal, his psychology, his social condition and his mind set for committing the offence are also relevant. Hon’ble Supreme Court in the honour killing case where there is an intercaste marriage converted the death sentence of the accused into life imprisonment.

¶155

I find that there are some mitigating circumstances in this case. The appellants are rustic villagers having no criminal record. The offence cannot be said to be pre-planned. In rural areas the caste system is pre-dominant. As the deceased married inter-caste there is an eminent social pressure upon the appellants which stimulate them to perform such a heinous crime. In my opinion, this case does not falls within the ambit of the rarest of rare case. Further the circumstances to award death penalty is not there in this case.

¶156

I am of the opinion that this case does not warrant death penalty to be imposed upon the appellant nos. 1 and 3. Thus their death penalty is commuted to life imprisonment. Thus

¶157

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¶158

these two appellants, namely, Kishun Sao and Dulari Devi are directed to serve the sentence of life imprisonment.

¶159

Thus the appellant nos. 1 and 3 stands convicted for committing offence under section 302/34 of the Indian Penal Code and also for the offence under section 201/511 of the Indian Penal Code. They are sentenced to undergo imprisonment for life under section 302/34 with fine of Rs. 10,000/- each and five years of simple imprisonment for committing offence under section 201/511 of the Indian Penal Code with a fine of Rs. 5,000/- each and their sentence would run concurrently.

¶160

So far as appellant nos. 2 and 4, namely, Sitaram Sao and Parwati Devi are concerned they are acquitted of the charge for committing offence under section 302/34 of the Indian Penal Code. However, they are convicted for offence under section 201/511 of the Indian Penal Code and they are sentenced to undergo RI for five years along with fine of Rs. 5,000/- each.

¶161

In the event if fine amount is not paid by all the appellants they will serve further sentence of six months simple imprisonment.

¶162

Criminal Appeal (DB) No. 97 of 2021 is partly allowed . 36. Accordingly, in view of what has been held above, the instant Death Reference No. 1 of 2021 is answered in negative . 37. Let a copy of the judgment along with the Trial Court Records be sent back to the Court concerned forthwith.

¶163

(ANANDA SEN, J.)

¶164

GAUTAM KUMAR CHOUDHARY, J. - I agree.

¶165

(GAUTAM KUMAR CHOUDHARY, J.)

¶166

High Court of Jharkhand, Ranchi Dated: 08/08/2024 Tanuj/ .A.F.R.

¶167

23

The State of Jharkhand v. Kishun Sao

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The State of Jharkhand v. Kishun Sao

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