Jharkhand High Court
(Against The Judgment Of Conviction And ... vs The State Of Jharkhand on 2 August, 2023
Author: Subhash Chand
Bench: Sujit Narayan Prasad, Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 2218 of 2017
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(Against the Judgment of conviction and order of sentence dated
21.09.2017 and 23.09.2017 respectively passed by the
Additional Sessions Judge-III, West Singhbhum at Chaibasa.
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Mora Jonko, son of late Laxman Jonko, Resident of Jonko
Soshansole, P.O. and P.S.-Muffasil (Pandrasali), District- West
Singhbhum. ... ... ... ...Appellant
-Versus-
The State of Jharkhand ... ... ...Respondent
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
For the Appellant : Mrs. Anjana Kumari, Advocate
For the State : Mrs. Priya Shrestha, A.P.P.
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C.A.V. on 20.07.2023 : Pronounced on 02.08.2023
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Per Subhash Chand, J.
The instant Criminal Appeal is directed against the judgment of conviction dated 21.09.2017 and order of sentence dated 23.09.2017 passed by the Additional Sessions Judge, West Singhbhum at Chaibasa in S.T.No. 221 of 2012 whereby the accused Mora Jonko was convicted for the offence under Sections 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- in default to further undergo R.I. for one year under Section 302 of the Indian Penal Code.
2. The brief facts of the prosecution case leading to this Cr. Appeal are that the informant Turi Jonko has given the written information on 13.06.2012 with the police station concerned with these allegations that they were eight brothers and sisters. His mother died two years ago and he had been residing along with 2 his father. His elder brother Mora Jonko was doing business of selling of vegetables and had also been residing along with him and the father as well. There was strained relation between the elder brother-Mora Jonko and the father. On last night he had slept at the house of Lakhendra Praiya and his father was sleeping at his house while his brother was sleeping in a village school. Today in the morning he went to respond the call of nature towards the pond where Rango Jonko of his village told him that the murder of his father was committed. Hearing the same he reached to his house and saw his father dead who had head injury and was lying in pool of blood. An axe, danda of Palas blood smeared was also found there. He gave the information of the occurrence to his uncle Kripa Jonko and his Nani. Meanwhile in presence of the villagers his elder brother Mora Jonko came and he confessed his guilt in presence of the villagers that he had committed the murder of his father by inflicting blow with Lathi and the axe at 11 O'clock at night on 12.06.2012. He also told the reason of commission of the murder that on last Saturday his father had chased him to commit his murder. In revenge thereof he committed murder of his father. On this written information P.S. Case No. 49 of 2012 under Section 302 of I.P.C. was registered with the Police Station Muffasil Pandrasali, District West Singhbhum.
3. The I.O. after having concluded the investigation filed charge-sheet against Mora Jonko under Section 302 of I.P.C. before the court of Magistrate concerned and the Magistrate concerned after having taken cognizance thereon committed the 3 same to the Court of Sessions Judge, West Singhbhum at Chaibasa for trial and subsequently the trial was also transferred to the Court of Addl. Sessions Judge-III, West Singhbum at Chaibasa.
4. The trial court framed charge against the accused Mora Jonko under Section 302 of the I.P.C. and same was read over and explained to him which was denied by the accused Mora Jonka and he claimed for trial.
5. On behalf of prosecution in documentary evidence adduced signature on fardbayan of P.W.1 (Ext.1), signature on fardbayan of Turi Jonko (Ext. 1/1), Signature of P.W.1 on 164 Cr.P.C. statement (Ext.2), signature on fardbayan of P.W. 2 (Ext. 1/2), signature on seizure list of P.W.2 (Ext. 3), signature on 164 Cr.P.C. of P.W. 2 (Ext. 2/1), signature on seizure list of P.W.3 (Ext. 3/1), P.M. report (Ext. 4), signature of Kisun Das on fardbayan( Ext. 1/3), signature of Kisun Das on forwarding of fardbayan (Ext. 1/4) writing of former Officer-in-Charge Shyam Bihari Manjhi on endorsement of forwarding (Ext. 1/5), formal F.I.R. (Ext.5), Inquest report (Ext.6), seizure memo of blood stained soil (Ext. 3/2), confessional statement of Mora Jonka (Ext.6), S.F.S.L. report (Ext.7), statement of under Section 164 Cr.P.C. (Ext.8), statement under Section 164 (Ext. 8/1).
6. In oral evidence examined 10 witnesses P.W.1 Kripa Jonko, P.W. Dumbi Jonko, P.W.3 Nandlal Jonko, P.W.4 Ramsingh Jonko, P.W.5 Dr. Mahavir Prasad Gopalika, P.W.6 Junesh Pareya, P.W. 7 Jivan Jonko, P.W.8 Sakaldeep Singh, P.W. 9 Kishun Das and P.W. 10 V.J. Kerketta.
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7. The statement of accused under section 313 of Cr.P.C. was recorded in which he denied the incriminating circumstances and stated that he did not commit the murder of his father nor he confessed his guilt and told himself to be innocent.
8. The learned trial court after hearing the learned Counsel of parties and on the basis of evidence on record passed the Judgment of conviction of accused Mora Jonko on 21.09.2017 and sentenced him with imprisonment for life and a fine of Rs.10,000/- vide order dated 23.09.2017. In default of payment of fine, the additional imprisonment of one year was also imposed.
9. Aggrieved from the impugned Judgment of conviction dated 21.09.2017 and sentence dated 23.09.2017 this Criminal Appeal is preferred on behalf of appellant Mora Jonko on the ground that the impugned Judgment of conviction and sentence passed by the court-below is based on the extra judicial confession which is not a substantive evidence and there is no other evidence in corroboration of the extra judicial confession. The appellant did not make any extra judicial confession. There is no other oral or circumstantial evidence against the appellant and the court-below has passed the impugned Judgment of conviction and sentence after having not appreciated the evidence on record in a proper perspective. Accordingly, prayed to set aside the impugned Judgment of conviction and sentence and to allow the appeal acquitting him from the charge framed against him.
10. We have heard the learned Counsel of the parties and perused the material on record.
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11. In order to decide the legality and propriety of the impugned Judgment of conviction and sentence passed by the court-below, we would like to re-appreciate the evidence on record oral and documentary as well which is reproduced hereinbelow:
12. On behalf of prosecution in oral evidence examined 10 witnesses.
13. P.W. 1 Kripa Jonko in his Examination-in-chief says that the occurrence is of one year ago. Mora Jonko came to him and told that his father wanted to kill him. Therefore, he had committed murder of his father then he reached to the house of Mora Jonko and found his father Lashman Jonko dead. There was injury on his head. He gave the information of the occurrence to the Police Station. The Police came to the village and recorded the fardbayan of the another son of the deceased on which Turi and he also put his signature marked Ext.1. He also identified the signature of Turi which is marked as Ext. 1/1. Turi also died. The Police also prepared the recovery memo of the bloodstained soil, Tangi and a danda of Palas. Mora Jonko was nabbed by the Police. His statement was also recorded before the Magistrate on which he put his signature. He identified his statement before the Magistrate Ext.2. He identified accused Mora Jonko in the dock.
In cross-examination this witness says that he did not see the occurrence. What Mora Jonko had told him in regard to the occurrence he stated the same.
14. P.W.2 Dumri Jonko in his Examination-in-chief says that the murder of Lakshman Jonko was committed one year two months ago. The villagers had told him that Lakshman Jonko was 6 murdered by his son Mora Jonko. He also went to house of Lakshman and found his dead body. The Police had also come there. The fardbayan was recorded of another son of deceased Turi Jonko. He also put his signature thereon marked as Ext. 1/2. The seizure memo of the bloodstained soil, Tangi and danda was prepared by the Police marked Ext.3. His statement was also recorded by the Magistrate on which he put his signature marked Ext. 2/1.
In cross-examination this witness says that he did not see the occurrence.
15. P.W.3 Nandlal Jonko in his Examination-in-chief says that Lakshman Jonko was murdered one year ago. Police had come to the village. Accused Mora Jonko told before the Police that he had murdered his father. The Tangi, the wood and the bloodstained soil was seized. Seizure memo was prepared marked Ext. 3/1. He identified the accused in the dock.
In cross-examination this witness says that he did not see the occurrence. Mora Jonko had told him that he had committed the murder of his father.
16. P.W.4 Ramsingh Jonko in his Examination-in-chief says that Lakshman Jonko was murdered one year ago. He came to know in regard to the occurrence from his mother. Police had come to the village. He did not give any statement to the Police. This witness was declared hostile and in cross-examination he denied the statement given to the I.O. under Section 161 of Cr.P.C.
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In cross-examination by defence he says that he is not aware by whom and how Lakshman Jonko was murdered.
17. P.W.5 Dr. Mahavir Prasad Gopalika proved the post mortem report of deceased and stated that on 13.06.2012 he conducted the postmortem of deceased-Lakshman Jonko and found the following ante-mortem injuries:
i. Incised wound 2" x ¼" cutting skull bone at right temporal area. Skull bone fractured, Brain material out.
ii. Cut wound at right ear 1"x ¼".
iii. Bruise near right eye 2"x 1".
The cause of death was shock and haemorrhage as a result of head injury caused by sharp cutting substance such as Tangi. Autopsy report marked as Ext.4.
In cross-examination this witness says if a Tangi is sharp edged only then such type of injury would be caused. If the Tangi was blunt, the lacerated wound would be caused.
18. P.W.6 Junesh Pareya in his Examination-in-chief stated that Lakshman Jonko was murdered three years ago. Police came to the village. Accused Mora Jonko confessed before the Police that he had committed murder of his father. He identified the accused Mora Jonko in dock.
In cross examination this witness says that before he reached to the house of deceased, Police had nabbed Mora Jonko.
19. P.W.7 Jivan Jonko in his Examination-in-chief says that two or three years ago Lakshman Jonko was murdered. Police had come to the village. Mora Jonko had confessed before the Police in regard to committing murder of his father. 8
In cross-examination this witness says that the Police did not take his statement. The accused has confessed his guilt in his presence before the Police.
20. P.W.8 Sakal Deep Singh, the Investigating Officer in his Examination-in-chief says that on 22.07.2012 he was station officer of the outpost Pandrasali within Police Station of Muffasil. Prior to him the station officer Kishun Das had taken over the investigation of this case. He took over the investigation from him and perused the case diary. After perusal of the statement which was recorded by the former Investigating Officer, he also got recorded the statement of witnesses under Section 164 of Cr.P.C. by the Magistrate. He also sent the seized blood-stained Tangi and wooden Mungra to Forensic Science Laboratory, Ranchi and thereafter filed charge-sheet.
In cross-examination this witness says that the material exhibit which was sent to the F.S.L. was not produced before the Court.
21. P.W.9 Kishun Das, Investigating Officer in his Examination-in-chief says that on 13.06.2012 he was in-charge of the outpost Pandrasali. He received the information in regard to commission of murder and reached there found the dead body and on reaching there he recorded fardbayan of Turi Jonko on 13.06.2012 on which two witnesses Kripa Jonko and Dumbi Jonko also put their signature. The fardbayan is marked as Ext. 1/3 and it was endorsed by him marked Ext. 1/4. Thereafter it was endorsed by Shyam Bihari Manjhi marked Ext.1/5. He recognized the signature of Manjhi. He also recorded the 9 restatement of informant. He seized the bloodstained soil, Tangi and the wooden stick (Mungra) prepared the seizure memo of the same on which signed Nandalal Jonko and Dumbi Jonko marked Ext. 3/2. He got the autopsy of the deceased conducted by the Doctor. The accused also confessed his guilt before him. His confession is marked Ext.6. He prepared the site plan of the place of occurrence also recorded the statement of other witnesses Kripa Jonko, Ramsingh Jonko, Dumbi Jonko, Jivan Jonko, Junesh Pareya and on 18.07.2012 he was transferred and the investigation was handed over to S.I. Sakal Deep Singh.
In cross-examination this witness says that the dead body was found by him lying on the cot which was bloodstained but he did not seize the same.
22. P.W.10 Vimal Johnson Kerketta, the Judicial Magistrate, 1st Class in his Examination-in-chief has stated that on 13.08.2012 he was posted as Judicial Magistrate, 1st Class, Chaibasa. In compliance of the order of the Chief Judicial Magistrate, Chaibasa he recorded the statement under Section 164 of Cr.P.C. of Kripa Jonko, son of Turi Jonko and Kripa Jonko son of Ranga Jonko and Dumbi Jonko marked Ext. 8 to 8/1.
1In cross-examination this witness says that he recorded the statement of the witnesses whatever they stated to him.
23. The learned Counsel for the appellant has submitted that the learned trial court has based the conviction of the appellant on extra judicial confession of the appellant which he did not make and denied any kind of confession made before the Police or 10 even the extra judicial confession as well. There is no other evidence in corroboration of the same. The case is based on circumstantial evidence. There is no link in the chain of circumstantial evidence to indicate the guilt of the appellant conclusively. Even the motive of the occurrence has also not been proved and the confession having no corroborative evidence submitted to set aside the impugned Judgment of conviction to acquit the appellant.
24. The learned A.P.P. vehemently opposed the contentions made by the learned Counsel for the appellant and contended that the impugned Judgment of conviction and sentence does not bear any infirmity. The confessional statement and the extra judicial confession of the accused is proved and the other witnesses have also corroborated in presence of whom the accused also confessed his guilt before the Police and the confession also corroborated with the medical evidence on record. Accordingly submitted to dismiss the appeal. The prosecution case is based on circumstantial evidence. As per prosecution case, the motive of the occurrence is that the appellant-accused had strained relation with his deceased-father and it is stated that his father wanted to kill him, therefore, he committed murder of his father and the appellant-accused had made extra judicial confession in regard to murder of his father before Kripa Jonko, the Gramin Munda who accordingly reached there and found the dead-body of Lakshman Jonko. He also informed the Police. Police also came there and in presence of other son of deceased Turi the Police recorded the 11 fardbayan on which P.W.1- Kripa Jonko and P.W.2 Dumbi Jonko also put their signature on the fardbayan.
25. The extra judicial confession is made by the appellant/convict before Kripa Jonko. This extra judicial confession was made oral which has been proved by P.W.1 Kripa Jonko. Thereafter the appellant/convict is also alleged to have confessed his guilt in regard to commission of murder of his father before the Police. P.W.9 Kishun Das Investigating Officer who also proved the confessional statement of appellant/convict as Ext. 6.
26. The other witnesses P.W.2 Dumbi Jonko, P.W.3 Nandlal Jonko, P.W.6 Junesh Pareya, P.W.7 Jivan Jonko have also stated that the appellant/convict had confessed his guilt in regard to commission of murder of his father before the Police Officer.
27. None of the witness of the fact has stated that they have seen the commission of the murder of the deceased Lakshman Jonko by his own son Mora Jonko appellant/convict herein.
28. Though the confession made by the appellant/convict in regard to committing murder of his father by inflicting injury with Tangi is also corroborated with the medical evidence which is proved from the statement of P.W.5 Dr. Mahavir Prasad Gopalika who had proved the postmortem report of deceased Ext.4 and stated that the cause of death was head injury inflicted by sharp cutting substance such as Tangi and in the postmortem report there were three injuries which are shown as under: 12
i. Incised wound 2" x ¼" cutting skull bone at right temporal area. Skull bone fractured, Brain material out.
ii. Cut wound at right ear 1"x ¼".
iii. Bruise near right eye 2"x 1".
29. Herein in order to appreciate the evidence adduced on behalf of the prosecution in regard to the extra judicial confession and confession made by the appellant-accused we would like to avert to the settled propositions of law as laid down by Hon'ble Apex Court which are reproduced hereinbelow:
30. The Hon'ble Apex Court held in Nikhil Chandra Mondal vrs. State of West Bengal 2023 Live Law (S.C.) page 171:
15. It is a settled principle of law that extra-
judicial confession is a weak piece of evidence. It has been held that where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It has further been held that it is well-settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra- judicial confession. It has been held that there is no doubt that conviction can be based on extra-judicial confession, but in the very nature of things, it is a weak piece of evidence. Reliance in this respect could be placed on the judgment of this Court in the case of Sahadevan and Another v. State of Tamil Nadu2. This Court, in the said case, after referring to various earlier judgments on the point, observed thus:
"16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extrajudicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-13
judicial confession alleged to have been made by the accused:
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law."
31. The Hon'ble Apex Court held in Union of India vs. Major R. Metri No.Mr 08585N 2022 Live Law S.C. 343.
45. It could thus be seen that the extrajudicial confession is a weak piece of evidence. Unless such a confession is found to be voluntary, trustworthy and reliable, the conviction solely on the basis of the same, without corroboration, would not be justified.
32. The Hon'ble Apex Court in Kulvinder Singh & Anr. vrs. State of Haryana A.I.R. 2011 S.C. 1777:
"19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the 14 confession was made and the credibility of the witnesses who speak of such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
33. Herein the appellant/convict is alleged to have confessed before P.W.1 Kripa Jonko. This extra judicial confession is oral. This Kripa Jonko is Gramin Munda. Certainly, he is having authority being the head of the village. The statement of P.W.1 Kripa Jonko which was made before the trial court is also in consonance of his statement given under Section 161 of Cr.P.C. and also the statement under Section 164 of Cr.P.C. which was recorded by P.W. 10 Vimal Johnson Kerketta, Judicial Magistrate, 1st Class P.W.10 which has been proved as Ext.8. This extra judicial confession made by appellant/convict Mora Jonko before P.W.1 Kripa Jonko has been retracted during the trial and also in his statement under Section 313 of Cr.P.C. He not only retracted from his extra judicial confession made before P.W.1; but also retracted from the confession made before the Police Officer P.W.9 Kishun Das also. The confession of the accused made before the Police is also 15 inadmissible in view of Section 24 and 25 of the Evidence Act which are quoted hereunder:
24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.-A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
25. Confession to police officer not to be proved.- No confession made to a police officer, shall be proved as against a person accused of any offence.
34. As such the extra judicial confession as well as the confession made before the Police both are retracted by the appellant/convict Mora Jonko. Herein it requires whether there is any corroborative evidence to support his confession either direct or circumstantial.
35. There is no other corroborative evidence in support of the extra judicial confession made by the appellant/convict before P.W. 1 Kripa Jonko the Gramin Munda. The only evidence is that of P.W.2 Dumbi Jonko, P.W.4 Ramsingh Jonko, P.W.6 Junesh Pareya, P.W.7 Jivan Jonko who have stated that in their presence the appellant/convict had confessed before the Police. Therefore, the confession before the Police being inadmissible in view of Section 25 of the Evidence Act, the testimony of P.W.2 Dumbi Jonko, P.W.4 Ramsingh Jonko, P.W.6 Junesh Pareya, P.W.7 16 Jivan Jonko have no corroborative value in regard to confession made by the appellant/convict before the Police.
36. The motive of the occurrence is shown that the appellant/convict was having strained relation with his father as his father wanted to kill him, therefore, he committed murder of his father. This motive has not been proved on behalf of prosecution by any of the witnesses who have been produced on behalf of the prosecution. The case being based on circumstantial evidence, the evidence of the motive became more significant.
37. The Hon'ble Apex Court held in Smt. Omwati vrs. Mahendra Singh A.C.C. (1) 1997 at 38:
"The motive though not necessary for conviction but when a specific case has been put the evidence regarding to that effect should be adduced.
38. Herein no evidence has been adduced on behalf of the prosecution to prove the motive of the commission of the murder of the father by the appellant Mora Jonko and this motive has only transpired in the extra judicial confession of the appellant/convict.
39. The next circumstantial evidence is the seizure of the bloodstained Tangi, Mungra and bloodstained soil from the place of occurrence though the seizure memo of the same was proved by the I.O. P.W.9 Kishun Das and also P.W.8 Sakal Deep Singh but the Tangi was not produced before the trial court during their examination by the witnesses. The Tangi and Mungra were sent to S.F.S.L. for serological examination. The report of 17 the same is on record which is Ext. 8/1. As per S.F.S.L. report the blood on the Tangi and wooden log which were marked as Ext. A and B was too small for serological test. As such the S.F.S.L. report also does not support the extra judicial confessional statement of appellant/convict. Therefore, the link in chain of circumstantial evidence are missing and the prosecution has failed to the prove its case beyond all shadow of doubt.
40. The Hon'ble Apex Court held in Majenderan Langeswaran vrs. State (NCT of Delhi) & Anr. A.I.R. 2013 at 2790 Supreme Court:
26. As discussed hereinabove, there is no dispute with regard to the legal proposition that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence as laid down by this Court. In such a case, all circumstances must lead to the conclusion that the accused is the only one who has committed the crime and none else.
41. From the evidence adduced on behalf of the prosecution which is based on circumstantial evidence the link of the chain of circumstances is not found complete and the prosecution case becomes doubtful. In case of circumstantial evidence where two views are possible the one which is favouring the accused should be adopted.
42. The Hon'ble Apex Court held in Pradeep Kumar vrs. State of Chhatishgarh 2013 Live Law S.C. 239 held:
The circumstantial evidence when two views are possible, view favourable accused innocence to be adopted.18
43. In view of the above re-appreciation of the evidence on record, we are of the considered view that the impugned Judgment of conviction and order of sentence passed by the court-below needs interference and same deserves to be set aside.
44. Accordingly, the Judgment of conviction 21.09.2017 and order of sentence dated 23.09.2017 passed by the Additional Sessions Judge-III, West Singhbhum at Chaibasa in S.T.No. 221 of 2012 is hereby quashed and set aside.
45. In view thereof, this Cr. Appeal is allowed.
46. In consequence thereof, appellant is directed to be released forthwith from the judicial custody if not wanted in any other case.
47. Let the lower court record be sent to the court-below.
I agree (Sujit Narayan Prasad,J.)
(Sujit Narayan Prasad,J.)
(Subhash Chand, J.)
Jharkhand High Court, Ranchi
Dated the 02.08.2023
P.K.S./A.F.R.