Jharkhand High Court
Sita Kumharin vs The State Of Jharkhand on 15 May, 2018
Equivalent citations: AIRONLINE 2018 JHA 343
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 90 of 2004
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(Against the judgment of conviction and order of sentence, both dated 20.09.2003 passed by learned Additional Sessions Judge, (Fast Track Court No. II), Chaibasa in Sessions Trial No. 109 of 2003).
Sita Kumharin ..... Appellant
Versus
The State of Jharkhand .... Respondent
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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
For the Appellant :Mr. Suchindra Prasad, Amicus Curiae
For the State :Mr. Vikash Kishore, Additional Publice Prosecutor
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By Court:- Heard learned counsel for the appellant, Mr. Suchindra Prasad,
Amicus Curiae and learned counsel for the State, Mr. Vikash Kishore, learned Additional Public Prosecutor.
2. The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence both dated 20.09.2003 passed by learned Additional Sessions Judge, (Fast Track Court No. II), Chaibasa in Sessions Trial No. 109 of 2003, whereby the sole appellant has been convicted by the learned Trial Court for offence punishable under Section 304 Part II of the Indian Penal Code and awarded rigorous imprisonment for seven years. The present Criminal appeal has been preferred on 16.01.2004, as jail appeal and has been admitted on 04.11.2004. The appellant has been released on bail, by suspending her sentence by the same order passed on 04.11.2004, since then the matter is pending.
3. The prosecution case, as made out in the First Information Report, is based upon the fardbeyan of Sanika Munda (P.W.1) recorded by S. I. Sri Pran Ranjan Kumar, P.S. West Singhbhum at 16.30 Hrs., on 05.04.2003 at village Upari Bartoli, Konseya. The informant has alleged, that he has received information from the co-villagers, that Laro Kumhar, son of late Birsu Kumhar has been assaulted by his wife (appellant), due to which, Laro Kumhar has died. The informant along with other co-villagers went to the house of Laro Kumhar and saw the dead body of Laro Kumhar. The informant has stated, that he has gathered information from the co-villagers standing there, that in the night of 4th/5th April, 2003, wife (appellant) and husband Laro Kumhar after having liquor, fought and the wife (appellant) has assaulted 2 her husband (Laro Kumhar) with fists and slaps, due to which her husband Laro Kumhar has died on 05.04.2003 at around 8.00 a.m. The informant has alleged, that being the village head (Munda), he has inquired from the wife of deceased (appellant) upon which, she (appellant) has stated that her husband Laro Kumhar went to bring his younger brother, Budhu Kumhar from Punjab and returned on Thursday, 04.04.2003 in afternoon alone and after having liquor both the persons (appellant and her husband) has fought and slept. Thereafter, in the morning her husband has complained about the chest pain, who has been given some household medicines. Laro Kumar could not urinate or ease himself and in the morning, at around 8.00 am, he (Laro Kumhar) died at the house.
4. On the basis of the fardbeyan of Sanika Munda, police registered Bandgaon P.S. Case no. 06 of 2003 dated 05.04.2003 under Section 304 of the Indian Penal Code and after investigation police submitted chargesheet, vide no. 9 of 2003 dated 30.04.2003 under Section 304 of the Indian Penal Code.
Cognizance of the offence has been taken on 12.06.2003 and the case was committed to the court of Sessions on the same day. The charge has been framed against the appellant, under Section 304 of the Indian Penal Code on 09.07.2003 to which, the appellant pleaded his innocence and put under trial.
5. The prosecution has examined altogether six witnesses and also adduced a number of documents.
6. Sanika Munda (informant of the case) has been examined as P.W. 1. He has proved his signature on fardbeyan, which has been marked as Exhibit- 1 and signature of Bikka Munda, on the same as Exhibit- 1/1. This witness has categorically stated that he is not an eye-witness to the occurrence, rather during cross-examination, he disclosed, that one Dakua namely Danish Machhua, has disclosed him about the occurrence. Sanika Munda has further stated, that he has got information from the co-villager at 5.00 pm, from one Dakua but the F.I.R. has been registered on next date at 16.30 Hrs. He has further stated, that Sita has also confessed before him at 11.00 a.m, that she has killed her husband.
Learned Amicus Curiae for the appellant has submitted, that Sanika Munda (P.W. 1) is not an eye-witness to the occurrence. Nothing has been said before Sanika Munda, as he has claimed in the court, that Sita Kumharin has confessed her guilt. Learned Amicus Curiae for the appellant 3 has further submitted, that it is not a case of extra judicial confession of an accused, as none of the witness examined in this case has supported the version of the Sanika Munda (P.W. 1). Learned counsel has further submitted, that Danish Machhua has not been examined in this case and the witnesses, who have been examined in this case has not supported the version of Sanika Munda (P.W. 1) and as such, only on the basis of, such a hearsay witness, the judgment of the learned Trial Court is not sustainable in the eyes of law.
Mr. Vikash Kishore, learned Additional Public Prosecutor on behalf of the State has submitted, that the appellant has confessed her guilt before Sanika Munda (P.W. 1) and on the basis of that, Sanika Munda, being, the village head, has informed the police. It is true that none of the witnesses, examined in this case, has supported the version of Sanika Munda but there is no reason that why Sanika Munda will falsely implicate Sita Kumharin for death of her husband (Laro Kumhar).
7. Sukhdeo Kumhar has been examined as P.W. 2. This witness is also a hearsay witness, who has categorically stated during cross-examination, that he has not seen the occurrence. This witness has stated, that on Saturday at 10.00 am, he has been informed about the death of Laro Kumhar.
Learned Amicus Curiae for the appellant has submitted, that Sukhdeo Kumhar is a hearsay witness and his evidence, adduced in the court does not bring the guilt upon the appellant as this witness (P.W.2) has categorically stated, that he got information about death at 10.00 am and he has not recorded statement of Sita Kumharin, rather he got information about death, from the co-villager at 6.00 am. Learned counsel has further submitted, that Sukhdeo Kumhar (P.W. 2) is not an eye-witness to the occurrence nor alleged confession of the appellant was made before him. Learned counsel for the appellant has further submitted, that he got information, about death of Laro Kumhar at 6.00 am and went to the house of the deceased at 10.00 am, whereas Sanika Munda (village head) has got information on the same date, at 5.00 pm but the F.I.R. was lodged on second day at 16.30 hrs. and as such, confession of the appellant, as alleged by Sanika Munda cannot be accepted, as an extra judicial confession by the appellant.
Learned counsel for the State, Mr. Vikash Kishore has submitted, that P.W. 2 is not an eye-witness to occurrence but he is a co- villager and there is no reason for Sukhdeo Kumhar to falsely implicate Sita Kumharin in such case, where the husband of the appellant has died.
4Learned counsel for the State, Mr. Vikash Kishore has fairly submitted, that in the cross-examination, this witness (P.W.2) has stated, that he has not seen the occurrence but he got the information from the co- villagers, at 6.00 am.
8. Chamna Kumhar has been examined as P.W. 3. He is one of the inquest witness of the case and has categorically stated, that he has not seen the occurrence.
Learned counsel for the appellant has submitted, that evidence of Chamna Kumhar has no legal value, so far guilt of the appellant is concerned.
Learned counsel for the State, Mr. Vikash Kishore has submitted, that Chamna Kumhar is an inquest witness and he has proved his signature on the inquest report.
9. Shukaru Devi has been examined as P.W. 4. She is also a hearsay witness, who went to the house of deceased, after hearing the death of deceased. This witness has stated, that she got information about death of Laro Kumhar in her house and went to the house of Laro Kumhar at 12.00 noon, where co-villagers were present but could not disclose the names of co- villagers.
Learned Amicus Curiae for the appellant has submitted, that P.W. 4 is also a hearsay witness and as per statement of P.W. 4, she went to the house of appellant, at 12.00 noon. Learned counsel for the appellant has further submitted, that if evidence of P.W. 1, P.W. 2 and P.W. 4 are compared, then different time is being given, with respect to the confession of the appellant but none of the witnesses have said, that in whose presence the accused (appellant) has confessed her guilt, rather Sanika Munda says that, it was before him, confession was made where co-villagers were also present. None of the witnesses who have been examined in this case, as P.W. 1, P.W.2 and P.W. 4 have stated the name of any co-villager, in presence of whom the appellant has confessed her guilt nor the presence of each other, either P.W. 1, P.W. 2 and P.W. 4 was simultaneously there, when appellant has confessed her guilt and as such, on the basis of such sketchy evidence, which has been wrongly considered by the learned Trial Court, while passing the order in extra-judicial confession, is bad in law.
Learned counsel for the appellant has relied upon some judgment reported in 2012 6 SCC 403 in case of Sahadevan and another Vs. 5 State of Tamil Nadu where the Hon'ble Apex Court has held: "Extra-judicial confession - Admissibility and evidentiary value of - Principles reiterated - Extra-judicial confession is a weak piece of evidence - Court must ensure that same inspires confidence and is corroborated by other prosecution evidence - If extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent, it may be difficult for court to base a conviction on such a confession."
In this case there is no corroborative evidence and as such, on the basis of only sketchy evidence, the learned Trial court has passed the judgment of conviction erroneously without taking due consideration of evidence while putting reliance on such confession.
Learned counsel for the appellant has also relied upon (2010) 10 SCC 604 Sansar Chand vs. State of Rajasthan. The Hon'ble Apex Court has held that "there is no absolute rule that extra-judicial confession, can never be the basis of conviction, although, ordinarily, extra judicial confession should be corroborated by some other material." Learned Amicus Curiae for the appellant has submitted, that from evidence of Dr. Umendra Prasad (P.W.6), two external injuries have been found, on the person of the deceased, which are as follows :
(i) Abrasion on abdomen, right side, size
6"x1/2"x1/2".
(ii) Abrasion on the lower part of scrotum size
1 ½" x 1/2" x 1/4".
But doctor has categorically mentioned in his cross-
examination, that injury no. 1 and 2 cannot be caused by 'lat' and 'mukka' as alleged by prosecution and as such, in absence of any corroborative evidence, the conviction of the appellant, on the basis of so-called extra judicial confession, is not sustainable in the eyes of law.
Learned counsel for the State, Mr. Vikash Kishore, Additional Public Prosecutor has submitted, that doctor has found rupture of spleen and has categorically stated, that death is due to haemorrhage and shock caused by internal injury, but has fairly conceded, that from material available on record, it cannot be proved that rupture of spleen has been caused because of injury no. 1 and 2 and even if, it is so, then also, the injury no. 1 and 2 cannot be caused by 'lat-mukka', as alleged by the prosecution. The learned counsel for the State has fairly submitted, that Laro Kumhar has died and his wife 6 (appellant) has been residing with him, she has not alleged suspect, against any person with respect to death of Laro Kumhar.
10. Sri Rameshwar Kumar Singh, Investigating Officer of the case, has been examined as P.W. 5. This witness has proved the signature of the Officer- in-Charge, Pran Ranjan Kumar as Exhibit- 2 and endorsement on the fardbeyan as Exhibit 2/1 and formal F.I.R. containing the signature of the Officer-in-Charge as Exhibit 3. This witness has stated, that during preparation of the inquest report in presence of witness Sukhdeo Kumhar and Chamna Kumhar, he has found scratches over the right side of the abdomen and proved the inquest report as Exhibit 4 and after investigation the Charge Sheet has been submitted by this witness (P.W.5).
Learned counsel for the appellant has submitted that in the inquest report the Investigating Officer has found scratches over the right side of the abdomen but the said injury has not been explained by the prosecution and not corroborated with the confessional statement of the appellant, as doctor has categorically stated, that such injury cannot be caused because of 'lat-mukka', as alleged and as such, due to lack of corroborative evidence, the conviction of the appellant, on such sketchy and unexplained injury cannot sustain in the eyes of law.
Mr. Vikash Kishore, learned Additional Public Prosecutor, has submitted that Laro Kumhar has died because of the internal injury i.e. rupture of the spleen, which can be caused because of assault made by 'lat-mukka', as confessed by the appellant but when this Court has drawn the attention of the learned Additional Public Prosecutor towards the injury no. 1 and 2 found by doctor (P.W. 6) which cannot be caused by 'lat-mukka' as admitted by the doctor (P.W. 6), learned Additional Public Prosecutor could not explain the same.
11. Dr. Umendra Prasad has been examined as P.W. 6. He has proved the post-mortem report in his pen and signature and marked the same as Exhibit-
5. The doctor has found two external injuries but has admitted that these injuries cannot be caused by 'lat-mukka'. Doctor has also opined that death is due to hemorrhage and shock caused because of internal injury and the doctor has not explained, how spleen of the deceased has been ruptured, but the doctor has categorically stated that injury no. 1 and 2 cannot be caused by 'lat- mukka'.
The learned Amicus Curiae for the appellant has submitted that 7 the prosecution has not proved the case beyond all reasonable doubts to explain, that how spleen has got ruptured as the injury no. 1 and 2 cannot be caused by 'lat-mukka' and as such, the external injuries, which were found on the deceased, cannot be a reason of rupture of spleen. Furthermore, the learned counsel for the appellant has submitted, that in the night, the deceased has taken liquor along with his wife (appellant). If the confessional statement of the appellant is considered to be true, then nothing was found, which does not corroborates, that deceased has taken liquor in the night and as such, in the absence of any corroborative evidence, the conviction of the appellant is not sustainable in the eyes of law.
Mr. Vikash Kishore, learned Additional Public Prosecutor has submitted, that husband of the appellant died in his house and doctor has opined, that because of the internal injury, death has caused and as such, it is the appellant, who has confessed her guilt is sufficient to prove the guilt against her and the learned Trial Court is justified in convicting the appellant.
12. Learned counsel for the appellant has drawn attention of this court towards question no. 4 put to the appellant where the appellant had denied allegation, regarding assault made by her and in question no. 8 she has said that Sanika Munda (village Munda) has never asked her, about the reason of death of her husband. Learned counsel for the appellant has submitted that, since in the statement recorded under Section 313 Cr.P.C., the appellant has denied about her confession and as such, on the basis of the statement made by P.W. 1 Sanika Munda, that the appellant has confessed her guilt, the judgment of conviction cannot be passed.
Learned counsel for the State, Mr. Vikash Kishore, has fairly submitted, that the question no. 4 and 8, asked to the appellant during 313 Cr.P.C., there is denial by the appellant.
13. After hearing the learned Amicus Curiae for the appellant and learned counsel for the State and on perusal of the materials available on record, this court is of the opinion that the learned Trial Court has convicted the appellant, on the basis of confessional statement of the appellant before Sanika Munda, considering it to be an extra-judicial confession but none of the witnesses, examined in this case, have stated that appellant has confessed her guilt before public or co-villagers and also, her statement recorded under Section 313 Cr.P.C, particularly question no. 4 and 8 completely belies the version of P.W. 1 (Sanika Munda).
8This court has also perused the evidence of P.W. 6 and the post- mortem report (Exhibit- 5). From perusal of the same, two external injuries were found over the abdomen but the doctor has categorically stated that these two injuries cannot be caused by 'lat' and 'mukka' meaning thereby that corroborative evidence is completely missing in this case.
Furthermore, the corroborative evidence prior to the occurrence and at the time of occurrence, her confession has never been brought on record, such as the statement of the villagers with respect to brother-in-law or evidence with respect to taking toddy (liquor) by the deceased, in the night, the injuries found in the inquest report, regarding abrasion on the right side of the abdomen, has not been properly explained by the prosecution nor the same is corroborative to the alleged confessional statement of the appellant and as such, the alleged confession of the appellant is not a material to be considered as an extra judicial confession and as such, the impugned judgment of conviction and order of sentence passed by the learned Trial Court is not sustainable in the eyes of law. The same is un- corroborative.
14. As a cumulative effect of this, the discussions made above, this court is of the opinion, that the appellant is acquitted by giving benefit of doubt. The impugned judgment of conviction and order of sentence, both dated 20.09.2003 passed by learned Additional Sessions Judge, (Fast Track Court No. II), Chaibasa, in Sessions Trial No. 109 of 2003 in connection with Bandgaon P.S. Case No. 06 /2003 consequent to G. R. No. 78 of 2003 is set aside and the appellant is acquitted of the offence committed under section 304 Part-II of the Indian Penal Code.
15. The appellant, who is on bail is discharged from liability of his bail bond.
16. In the result, the appeal is allowed.
17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated the 15.05.2018 Pallavi/