Jharkhand High Court
Shiv Narayan Singh vs State Of Jharkhand on 2 May, 2016
Author: D.N. Upadhyay
Bench: D.N. Upadhyay
1
Criminal (Jail) Appeal (D.B.) No. 880 of 2005
With
Criminal Appeal (D.B.) No. 742 of 2005
[Against the judgment of conviction and order of sentence dated
22.06.2005 and 23.06.2005, respectively passed by learned Additional
Sessions Judge, F.T.C.-IV, Garhwa, in ST Case No. 70/03.]
Criminal (Jail) Appeal (D.B.) No. 880 of 2005
Shiv Narayan Singh ... Appellant
Versus
The State of Jharkhand ... Respondent
Criminal Appeal (D.B.) No. 742 of 2005
1. Nand Lal Singh son of Surdeo Singh,
2. Dabloo Singh alias Arjun Singh son of Suryadeo Singh,
3. Patras Singh son of Sohrai Singh,
4. Hari Charan Singh son of Sukhdeo Singh,
All villager Binda P.S. Bhandariya, District- Garhwa. ... Appellants
Versus
The State of Jharkhand ... Respondent
PRESENT : THE HON'BLE MR. JUSTICE D.N. UPADHYAY
THE HON'BLE MR JUSTICE RATNAKER BHENGRA
For the Appellant : Mr. Sanjay Kr. Pandey, Advocate
in Criminal (Jail) Appeal (D.B.) No. 880 of 2005.
M/s. Gopal Krishna Sinha, Devesh Krishna &
Priyanka Bobby, Advocates.
in Criminal Appeal (D.B.) No. 742 of 2005
For the State : Mrs. Vandana Bharti, A.P.P. (in both cases)
J U D G M E N T
By Court:
(D.N. Upadhyay, J.) Both the criminal appeals are directed against the judgment of conviction and order of sentence dated 22.06.2005 and 23.06.2005 respectively, passed by learned Additional Sessions Judge, F.T.C.IV, Garhwa, in connection with ST Case No. 70/03, corresponding to G.R. No.536/02, arising out of Bhandaria P.S. Case No. 15/02, whereby the appellants have been held guilty for the offence punishable under Sections 302/34, IPC and 201/34, IPC as well as Section 4 of the Prevention of Witch (Daain) Practices Act and sentenced to undergo rigorous imprisonment for life under Sections 302/34, IPC, rigorous imprisonment for seven years under Sections 201/34, IPC and rigorous imprisonment for 2 six months under Section 4 of the Prevention of Witch (Daain) Practices Act. The sentences so passed were directed to run concurrently.
2. The facts, reveal from First Information Report, are that on 23.07.2002, in the morning, at about 8:00 a.m., Panbasia Devi (sister of deceased) informed that Sarhulia Devi (deceased) has been missing from her matrimonial home since intervening night of 11th/ 12th July, 2002. She has further informed that Sarhulia Devi might have been killed by her husband Shiv Narayan Singh and villagers, who had branded Sarhulia Devi as witch. Informant has further disclosed that Sarhulia Devi (deceased) was branded as witch by the villagers and she was subjected to torture by them and in that connection, panchayati was held prior to the occurrence. On 24.07.2002, informant with witnesses went to village Binda and asked Shiv Narayan Singh but no proper reply was given and after interrogation, he has admitted that Sarhulia Devi has been killed with the help of other appellants and they have concealed the dead body at river bank beneath sand. Matter was reported to the police and dead body of Sarhulia Devi was recovered at the instance of Shiv Narayan Singh [appellant in Criminal (Jail) Appeal (D.B.) No. 880 of 2005].
3. On the basis of information, given by Harawan Singh (brother of deceased), Bhandaria P.S. Case No. 15/02, under Sections 302/201/34 of the Indian Penal Code and Sections 3/4/5 of the Prevention of Witch (Daain) Practices Act, was registered against the appellants.
The police, after due investigation, submitted chargesheet. Accordingly, cognizance was taken against the appellants and the case was committed to the Court of Sessions and registered as ST Case No. 70/03.
4. Charges under Sections 302/34/201/34 of the Indian Penal Code and Sections 3/4/5 of the Prevention of Witch (Daain) Practices Act against appellants were framed, to which, they pleaded not guilty and claimed to be tried. To substantiate the charges, prosecution has examined altogether twelve witnesses, whereas, appellants also examined two defence witnesses. Learned trial Judge, placing reliance on evidences and documents available on records, held the appellants guilty for the offence and inflicted sentence, as indicated above.
5. Appellants have assailed the impugned judgment on the ground that learned Trial Judge has committed gross error by holding the appellants 3 guilty placing reliance on the confessional statement of Shiv Narayan Singh. There are contradictions appearing in the statement of witnesses. Informant has stated that the appellant Shiv Narayan Singh confessed his guilt that he has killed Sarhulia Devi with the help of appellants, namely, (1) Nand Lal Singh (2) Dabloo Singh (3) Patras Singh and (4) Hari Charan Singh in Criminal Appeal (D.B.) No. 742 of 2005 and threw the dead body near river bank. Shiv Narayan Singh had also pointed out the place where dead body was concealed. It is submitted that statement of informant does not find support from the evidence of Shayam Kishore Ranjan, PW12 (Investigating Officer). He says that statement of informant was recorded and case was registered. Thereafter, Shiv Narayan Singh was apprehended and interrogated and then he confessed his guilt and pointed out the place where dead body of Sarhulia Devi was concealed.
6. Learned counsel for the appellants has relied upon the judgment, in the case of "Aghnoo Nagesia versus State of Bihar, reported in AIR 1966 SC 119" and submitted that only portion of confession, leading to discovery, has to be accepted. If for the argument sake, it is admitted to be true that Shiv Narayan Singh has confessed his guilt and dead body of Sarhulia Devi was recovered at his instance, rest part of his confession, in which, he had admitted that Sarhulia Devi was killed by him with the help of other appellants, could not be the basis of his conviction. It is pointed out that confession before the police or extrajudicial confession is a weak piece of evidence and could not be the sole basis for conviction. It requires some corroboration.
7. Learned counsel has submitted that PW1 to PW4 are either relatives of the deceased or friends of the relatives. Ramprit Singh, PW5; Jitendra Singh, PW6; Ram Chandra Singh, PW8 have turned hostile, whereas, Bal Ram Singh, PW9; Wiphan Dewar, PW10 and Chaturbujh Singh, PW11 have been tendered by the prosecution. Dr. Kaushal Sahgal, PW7 had conducted autopsy on the dead body of Sarhulia Devi and proved post mortem as Ext.2. No cause of death has been assigned. Doctor did not find any external or internal injury on the person of the deceased. Dead body was decomposed. According to Doctor, death of Sarhulia Devi had taken place 1015 days prior to the date of post mortem examination. Surprisingly enough, Panbasia Devi, PW3, who happens to be own sister of deceased, 4 was also married in the same village and till 23rd, she did not inform either her brother (informant) or anyone that Sarhulia has been missing from her matrimonial home since intervening night of 11th/ 12th July, 2002. No witness of villageBinda has supported this fact that the deceased was subjected to torture or assault at any point of time and she was branded as witch. No witness of villageBinda has come forward to support that any panchayati at the instance of informant was ever held in the village. Appellant Shiv Narayan Singh has remained in custody for about fourteen years. Conviction and sentence recorded only on the basis of confession made before the police is liable to be set aside.
8. Learned APP has opposed the argument and submitted that PW1 to PW4 have clearly stated that Sarhulia was subjected to torture by the villagers and she was branded witch. Appellant Shiv Narayan Singh, who happens to be husband of deceased, had supported the opinion of villagers that Sarhulia is a witch and he also caused torture to her. It is disclosed by informant that Sarhulia had informed that her husband Shiv Narayan Singh, being assisted by other appellants, used to cause torture to her and he has said that after getting opportunity, he would kill her. Dead body of Sarhulia was recovered at the instance of appellant Shiv Narayan Singh and therefore, leading to recovery of dead body is quite admissible under Section 27 of the Evidence Act and the confession so made is admissible and conviction can be based on such confession.
9. We have examined the case records, perused the evidences and the judgment impugned. Admittedly, no direct evidence that the appellants had killed Sarhulia is available on record. Circumstance, as PW1 to PW4 have brought on record, is that Sarhulia was branded as witch by the villagers and her husband Shiv Narayan Singh and she was subjected to torture and assault by them. After receiving such information, the informant with his friends and relatives had been to villageBinda where panchayati was convened but of no avail. Sarhulia again reported that torture on her is still going on. Informant told her that they would see the matter. Thereafter the informant received information regarding missing of Sarhulia. He went to village Binda and inquired the whereabouts of Sarhulia and after that, Shiv Narayan Singh confessed his guilt and on the basis of his confession, dead body of Sarhulia, concealed near river bank, was recovered.
510. Provisions contained under Sections 24 to 30 of the Evidence Act have been elaborately discussed by Their Lordships in the case of Aghnoo Nagesia(supra). Their Lordships have held that part of confession, leading to discovery of dead body, is admissible, but, rest portion of confession made before the police is restricted to be admitted, in view of Sections 25 & 26 of the Evidence Act. In the case in hand, it is not very clear as to confession, leading to discovery made by Shiv Narayan Singh, was either before his arrest or after his arrest. According to deposition of PW2, before the statement of informant was recorded, Shiv Narayan Singh was arrested by the police and he was interrogated. Informant PW2 and other witnesses, namely, Chandrika Singh, PW1 and Suresh Singh, PW4 as well as Shiv Narayan Singh along with the police, went to the place, where dead body was concealed. Thereafter, informant had given his statement, which was reduced to writing and signed by him. The Investigating Officer, PW12, in paragraph2 of his deposition, says that statement of informant was recorded and a case was registered and then appellant Shiv Narayan Singh was arrested. Thereafter, Shiv Narayan Singh had given his confessional statement, which was reduced to writing and then dead body of Sarhulia, on pointing out of Shiv Narayan Singh, was recovered. We have already observed that no direct evidence against the appellants is available. Only confession, leading to discovery of dead body, is evidence on record and learned Additional Sessions Judge has recorded the conviction and sentence on that confession. Number of times, Hon'ble Apex Court has held that confession is a weak piece of evidence and conviction could not be recorded without having corroboration. We do not find that the prosecution has succeeded to bring on record any such corroboration by adducing evidence rather the confession so made by Shiv Narayan Singh stood contradicted by the evidence of Dr. Kaushal Sehgal, PW7 and post mortem report (Ext.2). Doctor did not find any external or internal injury on the person of the deceased and cause of death could not be ascertained during post mortem examination. Under such circumstances, we are not in a position to hold that death of Sarhulia was homicidal. In absence of conclusive finding that death of Sarhulia was homicidal, conviction under Section 302, IPC could not be recorded.
611. In view of the discussions made above and evidences available on record, we do not feel inclined to uphold the judgment of conviction and order of sentence recorded by the Trial Court.
12. In the result, both the appeals stand allowed and the judgment of conviction and order of sentence dated 22.06.2005 and 23.06.2005, respectively, passed by learned Additional Sessions Judge, F.T.C.IV, Garhwa, in ST Case No. 70/03, is, hereby, set aside. Bail bonds of the appellants, namely, (1) Nand Lal Singh (2) Dabloo Singh (3) Patras Singh and (4) Hari Charan Singh in Criminal Appeal (D.B.) No. 742 of 2005 are hereby cancelled and they are discharged from the liability of their respective bail bonds. So far appellant, namely, Shiv Narayan Singh in Criminal (Jail) Appeal (D.B.) No. 880 of 2005 is concerned, he is lodged in jail. Therefore, he is directed to be released forthwith, if not wanted in any other case, and for that the convicting/ successor court shall issue appropriate direction, if needed.
(D.N. Upadhyay, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi, The 2nd May, 2016, SB- NAFR.