Jharkhand High Court
Ram Kishore Sahu vs The State Of Jharkhand on 17 April, 2018
Author: H.C. Mishra
Bench: H.C. Mishra, B.B. Mangalmurti
-1- Cr. Appeal (DB) No.1033 of 2007
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.1033 of 2007
(Against the Judgment of conviction dated 25th July, 2007 and Order of
sentence dated 26th July, 2007, passed by the Sessions Judge, Gumla, in S.T.
No.07 of 2007.)
Ram Kishore Sahu .... Appellant
Versus
The State of Jharkhand ..... Respondent
PRESENT
HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE B.B. MANGALMURTI
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For the Appellant : Dr. Amita Srivastava, Advocate For the State : Mr. Shekhar Sinha, APP
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By Court.:- Heard learned counsel for the appellant and learned counsel for the State.
2. The appellant is aggrieved by the Judgment of conviction dated 25th July, 2007 and Order of sentence dated 26th July, 2007, passed by the learned Sessions Judge, Gumla, in S.T. No.07 of 2007, whereby, the sole appellant has been found guilty and convicted for the offences under Sections 302 and 201 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life and fine of Rs.20,000/- for the offence under Section 302 of the Indian Penal Code, and R.I. for seven years for the offence under Section 201 of the Indian Penal Code. Both the sentences were directed to run concurrently.
3. The prosecution case was instituted on the basis of the written report submitted at the Police Station, Gumla, by the informant
-2- Cr. Appeal (DB) No.1033 of 2007 Jira Devi, who is the mother of the deceased Handu Sahu, a male child aged about three and half years. The written report was given at the Police Station on 05.05.2006, stating therein that Handu Sahu, the son of the informant, was missing since about 4.00 p.m. of 30.04.2006. The informant started searching her son at about 6.00 p.m., but she could not find him till 12.00 a.m. in the night. Thereafter, she started looking into the wells of the village, but still she did not find her son. On the next day, i.e., on 01.05.2006, at about 9.00 a.m., she found the dead body of her son in the well of one Kito Oraon, for which she had already given an information to the police on 01.05.2006 itself, on the basis of which, Gumla P.S. U.D. Case No.10 of 2006 was instituted. It is stated that on 04.05.2006, she was informed by Dimpal Kumar, aged about seven years and Nikki Kumari, aged about five years, who were the children of her co-villagers, that on the fateful day they were playing with the deceased child and in the meantime, the accused Ram Kishore Sahu dragged the child to his room and assaulted him after putting him in a sack, due to which, the child started bleeding from his mouth. As these two children were looking the occurrence, the accused threatened to kill them also, if they informed the occurrence to anyone and asked them to flee away. When the informant was informed about the occurrence by the two children, she informed the villagers and when the villagers also asked the children, both of them
-3- Cr. Appeal (DB) No.1033 of 2007 informed them also about the occurrence. She claimed that the accused is the agnate of her husband, and as there was no partition of the family land, he had committed the murder of her child and put the dead body in the well. On the basis of the written report given by the informant, Gumla P.S. Case No. 111 of 2006, corresponding to G.R. No.398 of 2006, was instituted for the offences under Sections 302 and 201 of the Indian Penal Code, against the sole accused, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case.
4. After commitment of the case to the Court of Session, charge was framed against the accused for the offences under Sections 302 and 201 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course of trial, the prosecution has examined ten witnesses in the case, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of the material witnesses examined, PW-1 Shambhu Sahu, who is also the scribe of the written report, has turned hostile and has not supported the prosecution case at all, though he has proved the written report to be in his handwriting, which was marked Ext.1.
5. PW-3 Jira Devi is the informant of the case and the mother of the deceased. She has stated that the occurrence had taken place about one year ago at about 4.00 p.m., when her son Handu went
-4- Cr. Appeal (DB) No.1033 of 2007 missing. She returned to her house at about 6.00 p.m., after the day's work and started searching her son, but she could not find him. Thereafter, she searched her son in the wells of the village also, but she could not find her child. On the next day at about 9.00 a.m., she found the dead body of her child in the well of Kito. She got the written report written by Thutha Sahu of her village, whereupon she had put her thumb impression, and submitted the written report at the Police Station. The police arrived and prepared the inquest report of the dead body and sent the dead body for the post-mortem examination. Subsequently, Dimpal Kumar and Nikki Kumari informed her that the deceased Handu was playing with them, when Ram Kishore Sahu called the deceased and when he did not go, the accused started assaulting him causing bleeding from his mouth and he also threatened Dimpal and Nikki not to inform anyone, otherwise they would also be killed, whereupon Dimpal and Nikki fled away from there. There was a Panchayati in the village, in which also, both the children informed the villagers that Ram Kishore Sahu had assaulted the deceased. Thereafter, she got another written report written by Shambhu Sahu and submitted it in the Police Station. She has stated that her husband had already died, and she is the second wife of her husband and after the death of her husband, she was not being given any maintenance by the elder brothers of her husband and there was no partition of the land. The accused also gave
-5- Cr. Appeal (DB) No.1033 of 2007 threatening to her and Dimpal. She has identified the accused in the Court. In her cross-examination, this witness has stated that when the dead body of her son was found, she had made suspicion against Ram Kishore Sahu and Satya Narayan Sahu. She has stated that this accused was taken away by the police on the same day and he was kept at the Police Station for 4 to 5 days and thereafter, he was released, whereupon she was surprised as to how the accused was released by the police. She has stated that when this accused was released, she gave another written report and thereafter the accused was again arrested. This witness has again stated in her cross-examination that Nikki Kumari and Dimpal Kumar are her villagers and they are her agnates (gotias) and their houses are situated nearby. She has stated that she was informed about the occurrence by these children after four days of finding the dead body. She has also stated that the first wife of her deceased husband is alive. She has denied the suggestion to have falsely implicated the accused.
6. PW-4 Fagu Sahu is the brother of the informant Jira Devi. This witness has also supported the prosecution case stating that the occurrence had taken place about one year ago. When the children were playing, the deceased Handu was taken away to his house by Ram Kishore Sahu. On that day, they could not find the deceased child, but on the next day morning, the dead body of the deceased
-6- Cr. Appeal (DB) No.1033 of 2007 child was found in the well of Kito Oraon. The police was informed and the dead body was sent for post-mortem examination. He has stated that Dimpal and his sister had informed that the accused Ram Kishore Sahu had taken away the deceased and he had also threatened these children. The children also informed them that the accused strangulated the child and concealed him in his house. This witness has stated that Ram Kishore Sahu is the uncle of the deceased and Baneshwar Sahu was keeping the mother of the deceased. Baneshwar Sahu died. Ram Kishore Sahu was not giving any share in the land to the mother of the deceased. He has claimed to identify the accused. In his cross-examination, this witness has stated that Jira Devi is his own sister and he had not seen the children playing together. He has also stated that both Dimpal and his sister were present in the village and they had not informed anything till the dead body was found. This witness has also stated that when the first information was given to the police, the police had taken the accused Ram Kishore Sahu to the Police Station, but thereafter he was left by the police, whereupon he and his sister were surprised as to how he was left by the police. When the accused was left by the police, his sister gave another application in the Police Station and thereafter the accused was arrested. He has again stated that only after Ram Kishore Sahu was left by the police, Dimpal and Nikki informed the villagers about the occurrence. This witness has again stated that
-7- Cr. Appeal (DB) No.1033 of 2007 Dimpal is the son of his own elder brother and Nikki is the daughter of his own younger brother, and they informed about the occurrence about four days after the dead body was found. This witness has also stated that Balkeshwar Sahu was the brother of Ram Kishore Sahu and they were five brothers. Their father is still alive and he had not partitioned his lands between his sons.
7. PW-5 Dimpal Kumar is the child witness, who has also supported the prosecution case. He has stated that the occurrence had taken place on 30.04.2006 and he was playing with Nikki and the deceased Handu near the house of Ram Kishore Sahu, where a school was under construction. They were playing on the sand kept there. Ram Kishore Sahu called Handu, but when he did not go, he forcibly took Handu to his cattle shed. He saw that Ram Kishore Sahu put Handu in a sack and strangulated him. Thereafter, this witness and Nikki went away. Next day, the dead body of Handu was found in the well. This witness has also stated that Ram Kishore Sahu had threatened them, as such they did not disclose about the occurrence to anyone. They disclosed about the occurrence only after four days of the occurrence. He has also stated that his statement was recorded under Section 164 of the Cr.P.C., on which he had put his signature, and he has identified his signature on the statement recorded under Section 164 of the Cr.P.C., which was marked Ext.3. In his cross-examination, this witness has stated that the mother of the
-8- Cr. Appeal (DB) No.1033 of 2007 deceased and the accused used to quarrel, but he could not say the reason for the quarrel. He has stated that he did not inform anyone about the occurrence even though the deceased was being searched by the villagers. This witness has also stated that when the dead body of the deceased was found, the police had taken the accused along with them to the Police Station, where he was kept for 3 to 4 days. Thereafter he informed his father about the occurrence. This witness has also stated that he had seen the accused putting the deceased in the sack and strangulating him. He has denied the suggestion to have given false evidence at the behest of the informant.
8. PW-6 Nikki Kumari is the child witness, who has stated that she was playing with Dimpal and the deceased Handu, when the accused called Handu and took him to his house. Thereafter she went away. She has not stated about any assault made by the accused. She has also stated that her statement was recorded under Section 164 of the Cr.P.C., whereupon she has identified her signature, which was marked Ext.3/1. In her cross-examination, she has stated that she had no relationship with the deceased. She has also stated that when they were playing on the sand, it was evening but it was not night. She did not inform anyone about the occurrence, as no one had asked her. She has also stated that the accused had not dragged the deceased to his house, rather, he had called him to his house, and as soon as
-9- Cr. Appeal (DB) No.1033 of 2007 the accused had called the deceased to his house, she went away from there. She has denied the suggestion of giving false evidence.
9. PW-2 Shankar Sahu has stated that on 30.04.2006 he was informed by Jira Devi that her child Handu Sahu was missing. Thereafter he searched the child, but the child could not be found in the night. On the next day, the dead body of the child was found in the well of Kito Oraon. The police was informed, who came and prepared the inquest report of the dead body, upon which this witness had also put his signature, which he has identified and the same was marked Ext.2. After 2 to 3 days, Dimpal and one girl informed that Ram Kishore Sahu had taken Handu to his house and had assaulted him and had threatened the children to flee away. He has identified the accused in the Court. In his cross-examination, this witness has stated that both the children, Dimpal and the girl, were his co-villagers and even when the villagers were searching the deceased, they were in the village, but they did not inform anything. On 04.05.2006, they gave the information to the villagers in a meeting in which this witness was also present. He has also stated that Ram Kishore Sahu is the elder brother of his sister's husband. He had denied the suggestion of giving false evidence.
10. PW-8 is Dr. Krishna Prasad, who had conducted the post-mortem examination on the dead body of the deceased child on 01.05.2006. He has stated that he had found pink froth coming from
- 10 - Cr. Appeal (DB) No.1033 of 2007 both the nostrils. There was no external or internal injury on the dead body. The hands and feet were sodden and lungs were oedemateous. About 200 ml of water was present in his stomach. He has stated that the cause of death was drowning in fresh water. No blood was found in the lungs, and in this case, the death was caused due to wet drowning. The boy was probably alive before he fell into the deep water. He has identified the post-mortem report to be in his pen and signature, which was marked Ext.4.
11. PW-7 is Suresh Prasad Srivastava, who is the I.O. of the case. This witness has stated that on 01.05.2006 he was posted as Officer-Incharge of Gumla Police Station, on which date the informant Jira Devi had given a written information at the Police Station, on the basis of which Gumla P.S. U.D case No. 10 of 2006 was instituted. On 05.05.2006, the informant again gave another written information, on the basis of which, the present case was instituted and investigation was made. He has identified the endorsement on the written report as also the formal F.I.R., to be in his pen and signature, which were marked Exts. 5 and 6 respectively. He recorded the re-statement of the informant and he inspected the place of occurrence which he has detailed. He has stated that the house of the informant and the house and cattle shed of the accused are situated in the north to the well from where the dead body was found. He has also stated that he did not go inside the house of the accused, rather, he saw the house from
- 11 - Cr. Appeal (DB) No.1033 of 2007 outside. He had not recovered anything incriminating either from the well or from the house of the accused. He recorded the statements of other witnesses and got the statements of Dimpal Kumar and Nikki Kumari recorded under Section 164 of the Cr.P.C., and he also arrested the accused. After completing the investigation, he submitted the charge-sheet. In his cross-examination, this witness has stated that in the U.D. case there was suspicion against two persons, namely, Satya Narayan Sahu and Ram Kishore Sahu. He had not arrested Ram Kishore Sahu in connection with U.D. case. He has also stated in his cross-examination that he had not inspected the house where he was informed that the accused had put the child in the sack and had assaulted him. He arrested the accused on 08.05.2006. He has denied the suggestion to have made faulty investigation.
12. PW-9 is Avinash Kumar Singh, who had prepared the inquest report of the dead body of the deceased and he has proved the same, which was marked Ext.7.
13. PW-10 Surendra Pal Singh is the Bench Clerk of S.D.J.M., Gumla, and he has proved the statements of both the children recorded under Section 164 of the Cr.P.C., to be in the handwriting and signature of the then S.D.J.M., and the same were marked Exts. 8 and 8/1. He has stated that the statements were recorded in his presence.
14. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. The
- 12 - Cr. Appeal (DB) No.1033 of 2007 defence did not adduce any evidence in the case. On the basis of the evidence on record, the sole appellant has been found guilty, and convicted and sentenced by the Trial Court below, as aforesaid.
15. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, in as much as, it has come in the evidence of PW-5 Dimpal Kumar, the child witness, that he firstly informed about the occurrence to his father, but the father of this child witness has not been examined in this case. It is also submitted by learned counsel that though it is the case of the prosecution that the deceased was put in a sack and strangulated and thrown in the well, but neither the sack was recovered by the police nor any external or internal injury was found on the dead body of the deceased by PW-8 Dr. Krishna Prasad, who had conducted the post-mortem examination on the dead body of the deceased. Rather, according to his evidence, the deceased had died due to drowning in the fresh water and this Doctor has clearly stated that it was a clear case of wet drowning. Learned counsel accordingly, submitted that in view of the fact that the enmity is admitted in the case, the false implication of the accused cannot be ruled out, and it is fit case in which the accused ought to have been given the benefits of doubt.
- 13 - Cr. Appeal (DB) No.1033 of 2007
16. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that PW-5 Dimpal Kumar and PW-6 Nikki Kumari are the eye witnesses to the occurrence and they have fully supported the prosecution case stating that while they were playing on the date of occurrence, the deceased was taken away by the accused. PW-5 Dimpal Kumar has also stated that the deceased was put in a sack and was strangulated. These witnesses have also stated that they were threatened by the accused not to inform anyone as such they kept mum for 4 to 5 days and subsequently they informed the villagers and thereafter, PW-3 Jira Devi, the mother of the deceased, PW-2 Shankar Sahu and PW-4 Fagu Sahu have also supported the prosecution case as informed to them by both these children. It is submitted that on the basis of the evidence on record, the case is clearly made out against the accused for the offences under Sections 302 and 201 of the Indian Penal Code, and there is no illegality in the impugned Judgment of conviction and Order of sentence.
17. Having heard learned counsels for both the sides and upon going through the record, we find that it is an admitted case that when the dead body was found on 01.05.2006, a written report was given to the police by the mother of the deceased in which suspicion was raised against two persons, including the present accused. However, an U.D. case was instituted on the basis of the said written
- 14 - Cr. Appeal (DB) No.1033 of 2007 report. It is claimed that on 04.05.2006 both the children PW-5 Dimpal Kumar and PW-6 Nikki Kumari informed the informant about the occurrence and thereafter, there was a meeting of the villagers, before which also, both these children gave the same information. According to the evidence on record, both the children were put under threat of being killed if they disclosed the occurrence to anyone else. We find from the evidence of PW-3 Jira Devi, PW-4 Fagu Sahu and PW-5 Dimpal Kumar that when the first written information was given to the police, this accused appellant was taken by the police into custody and he was kept for 3 to 4 days at the Police Station, and thereafter he was released, upon which, PW-3 Jira Devi and PW-4 Fagu Sahu were also surprised as to how he was released. Though the fact that the accused was taken into custody in connection with U.D. case, is denied by the I.O. PW-7 Suresh Prasad Srivastava, but if that be the fact as asserted by the PW-3 Jira Devi, PW-4 Fagu Sahu and PW-5 Dimpal Kumar, then there was no occasion of any fear to both the child witnesses, as the accused was already taken into custody by the police and both the child witnesses could freely inform about the occurrence to the mother and the villagers as soon the accused was taken into custody. The fact however, remains that from the evidence of both PW-3 Jira Devi and PW-4 Fagu Sahu it is apparent that only after the accused Ram Kishore Sahu was released by the police, both the
- 15 - Cr. Appeal (DB) No.1033 of 2007 children disclosed about the occurrence and a fresh written report was submitted against the accused, on the basis of which he was arrested. PW-3 Jira Devi has stated that both these children are only her co-villagers and gotias, and she had not disclosed the relationship between the children and herself. Even PW-6 Nikki Kumari has stated that she had no relationship with the deceased child. The cross-examination of PW-4 Fagu Sahu clearly discloses the relationship between them, that this witness is the own brother of PW-3 Jira Devi, the father of Dimpal Kumar is the own elder brother of PW-4 Fagu Sahu and PW-3 Jira Devi and father of Nikki Kumari is the own younger brother of both these witnesses. The concealment of this relationship by the informant PW-3 Jira Devi makes the entire prosecution case absolutely doubtful. The fact, however, remains that even after the removal of the element of fear due to the taking of the accused in custody by the police, both the children had not disclosed the occurrence to anyone, until the accused was released by the police. In other words, the disclosure was not made when the element of fear was removed, rather, the disclosure was made when the element of fear again surfaced. PW-6 Nikki Kumari, has not stated anything about the assault made on the deceased child, rather she has stated that the accused had only called the deceased to his house and thereafter she went away from there. In the facts of this case it cannot be ruled out that due to the previous grudge that the family
- 16 - Cr. Appeal (DB) No.1033 of 2007 land was not being partitioned, and the informant lady was not being maintained by the accused after the death of her husband, the appellant was made accused in both the written reports, and when the accused Ram Kishore Sahu was released by the police, both the children were tutored to make the statement as given by them. The fact remains that though the informant PW-3 Jira Devi is claiming to the second wife of her deceased husband, and has admitted that the first wife is also alive, her own brother PW-4 Fagu Sahu has deposed that she was only kept by the brother of the accused.
18. This apart, we find from the record that though there is specific case of the prosecution that the deceased child was put in a sack and he was strangulated, but there is no recovery of any sack either from the well or from the house of the accused as deposed by the I.O. of the case, PW-7 Suresh Prasad Srivastava, rather, this witness has clearly stated that he had not recovered any incriminating article from both these places. The evidence of PW-8 Dr. Krishna Prasad clearly shows that there was no external or internal injury on the dead body of the deceased and the cause of death was drowning in fresh water and it was a clear case of wet drowning. He has also stated that before falling into the well, the deceased was perhaps alive.
19. On the basis of these materials on record, we are of the considered view that in view of the admitted enmity between the parties, the prosecution has failed to bring home the charge against
- 17 - Cr. Appeal (DB) No.1033 of 2007 the accused appellant beyond all reasonable doubts, and it is a fit case in which, even though the child witness PW-5 Dimpal Kumar has supported the prosecution case, the accused appellant ought to have been given the benefits of doubt.
20. For the foregoing reasons the impugned Judgment of conviction dated 25th July, 2007 and Order of sentence dated 26th July, 2007, passed by learned Sessions Judge, Gumla, in S.T. No. 07 of 2007, convicting and sentencing the appellant Ram Kishore Sahu for the offences under Sections 302 and 201 of the Indian Penal Code, are hereby, set aside. Consequently, the appellant is given the benefits of doubt and he is acquitted of the charge. The appellant Ram Kishore Sahu is still in custody undergoing the sentence. Let him be released and set at liberty forthwith, if his detention is not required in any other case.
21. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
(H.C. Mishra, J.) (B.B. Mangalmurti, J.) Jharkhand High Court, Ranchi Dated, the 17th April, 2018.
Birendra /Anit / NAFR