Jharkhand High Court
Narde Purty @ Nago vs The State Of Jharkhand on 22 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (D.B) No.1142 of 2017
with
Criminal Appeal (D.B) No.1260 of 2018
(Against the judgment of conviction dated 23.02.2017 and the order of
sentence dated 28.02.2017 passed by the learned Additional Sessions
Judge-I, West Singhbhum at Chaibasa in S.T. Case No.36 of 2012)
In Criminal Appeal (D.B) No.1142 of 2017:
Narde Purty @ Nago, son of Mukru Purty, resident of village-Lupungutu,
Tola-Marangsai, P.S-Mufassil, District-West Singhbhum.
... Appellant
In Criminal Appeal (D.B) No.1260 of 2018:
Radha Deogam, wife of Late Daura @ Dabra Deogam, resident of village-
Lupungutu, Tola-Basasai, P.S-Mufassil, District-West Singhbhum.
... Appellant
Versus
The State of Jharkhand ... Respondent
(in both cases)
--------
(Heard through V.C on 22nd July, 2021)
-------
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant(s) : Mr. Anjani Kumar, Advocate
[In Cr. A. (DB) No. 1142 of 2017]
Mr. Chandra Shekhar Pandey, Advocate
[In Cr. A. (DB) No. 1260 of 2018]
For the State : Mr. Sanjay Kr. Srivastava, A.P.P
[In Cr. A. (DB) No. 1142 of 2017]
Mrs. Nehala Sharmin, A.P.P
[In Cr. A. (DB) No. 1260 of 2018]
-------
Oral Judgment
22nd July, 2021
Per, Shree Chandrashekhar, J.
Mufassil P.S Case No. 83 of 2011 was lodged on 09.08.2011
against unknown. In his fardbeyan which was recorded at 10:00 AM on
09.08.2011 near village Lupungutu Basa Sai, by the officer-in-charge of
Mufassil PS, Shankar Chourasia has stated that his son-in-law who had gone
to Jamshedpur with his family to earn livelihood was found dead in the
2 Cr. Appeal (DB) No. 1142 of 2017
with
Cr. Appeal (DB) No. 1260 of 2018
morning and when a search was made by his co-workers it was found that
he was killed with a stone. The marriage of his daughter Manju Devi was
solemnized with Mahesh Chourasia about 20 years ago and from the
wedlock five children were born. Since financial condition of his son-in-law
was not good, in search of work he came to Jamshedpur and started living in
a premise rented from one Yadav ji at Shanti Nagar, Mango. One month
back, he came to work at St. Xavier College, Lupungutu with Ganesh
Modak, Shankar Bhumij, Hara Nayak and others. An information about
death of his son-in-law was given to him by Ganesh Modak and upon such
information he came there and saw the dead body of Mahesh Chourasia.
Next day, in course of investigation Radha Deogam and Narde Purty
@ Nago were arrested and they suffered disclosure statements before the
investigating officer. At the instance of Narde Purty, a slipper belonging to
Mahesh Chourasia was recovered by the investigating officer. The
co-workers of Mahesh Chourasia stated before the investigating officer that
in the evening of 08.08.2011 Mahesh Chourasia had enjoined drinks
together with them. At that time, Radha Deogam and one boy also came
there and joined Mahesh Chourasia who stayed in the market with them.
After his arrest, Narde Purty gave confessional statement before the
investigating officer that he had illicit relations with Radha Deogam.
2. In S.T. Case No. 36 of 2012, Radha Deogam and Narde Purty
have faced the trial on the charge under sections 302/34 of the Indian Penal
Code for committing murder of Mahesh Chourasia in furtherance of
common intention. They were convicted and sentenced to R.I for life and a
fine of Rs.10,000/- each under section 302/34 of the Indian Penal Code with
default stipulation to suffer further S.I for six months.
3. Mr. Anjani Kumar and Mr. Chandra Shekhar Pandey, the
learned counsels appearing for the appellants submit that the appellants were
convicted for murder on suspicion and the prosecution did not produce
clinching material to connect them with murder of Mahesh Chourasia.
4. The case of the prosecution against the appellants hinges on
testimony of PW2- Ganesh Modak, PW3- Hara Nayak and PW4- Shankar
Bhumij, the co-workers of Mahesh Chourasia. The prosecution has proved
confessional statement of Radha Deogam and Narde Purty through the
investigating officer (PW7). The seizure list witnesses PW8 and PW9 were
3 Cr. Appeal (DB) No. 1142 of 2017
with
Cr. Appeal (DB) No. 1260 of 2018
examined to establish that the slipper of deceased was recovered and seized
and the accused confessed before them their guilt and that their confessional
statement before the investigating officer was without any fear or pressure.
5. In a long line of judgments the Hon'ble Supreme Court has held
that conviction can be recorded on the basis of circumstantial evidence but
great care must be taken in evaluating the evidence in a case based on
circumstantial evidence.
6. In "Sharad Birdhichand Sarda v. State of Maharashtra" (1984)
4 SCC 116 the Hon'ble Supreme Court has held that in a case based on
circumstantial evidence the prosecution must prove that (i) the
circumstances from which conclusion of the guilt is to be drawn are fully
established, (ii) the circumstances are of conclusive nature and tendency,
(iii) the facts so established are consistent only with the hypothesis of guilt
of the accused, (iv) every possible hypothesis of innocence of the accused is
completely excluded, and (v) the chain of circumstances is so complete that
it does not leave any reasonable ground for a conclusion consistent with
innocence of the accused.
7. In "Gambhir v. State of Maharashtra" (1982) 2 SCC 351 the
Hon'ble Supreme Court has observed as under:
"9....... When a case rests upon the circumstantial evidence, such
evidence must satisfy three tests: (1) the circumstances from which an
inference of guilt is sought to be drawn, must be cogently and firmly
established; (2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused; (3) the circumstances,
taken cumulatively, should form a chain so complete that there is no
escape from the conclusion that within all human probability the crime
was committed by the accused and none else. The circumstantial
evidence in order to sustain conviction must be complete and incapable
of explanation of any other hypothesis than that of the guilt of the
accused. The circumstantial evidence should not only be consistent with
the guilt of the accused but should be inconsistent with his innocence. In
the light of the legal position about the circumstantial evidence, we have
to examine whether the circumstantial evidence in the instant case
satisfies the requirements of law. The circumstantial evidence in the
instant case may be broadly classified into three parts: (1) oral evidence
to prove that in the absence of Namdeo, the accused used to visit the
house of Laxmi regularly and he was seen in the evening of February 26,
1975 in the company of Laxmi and her children. He was also seen at
about 10.00 p.m. the same night in the company of Laxmi under a neem
tree in the village. At midnight he was again seen going along the way
near the house of Babulal, (2) the various recoveries most of them at the
instance of the accused, and (3) medical evidence."
8. The learned Additional Sessions Judge-I, West Singhbhum at
Chaibasa has enumerated the following circumstances appearing from the
prosecution evidence against the appellants:
4 Cr. Appeal (DB) No. 1142 of 2017
with
Cr. Appeal (DB) No. 1260 of 2018
"(i) Deceased Mahesh Chourasia alongwith Ganesh Modak (P.W.2),
Hara Nayak (P.W.3) and Shankar Bhumij (P.W.4) had gone to wine shop
for drinking wine and after drinking wine, Ganesh Modak, Hara Nayak
and Shankar Bhumij returned but, deceased Mahesh Chourasia did not
return with them and he remain stayed there and that time Radha Deogam
and Narde Purty were present there.
(ii) Deceased Mahesh Chourasia did not return at night where he lived.
(iii) On the next morning, he also did not come to his work place where he
was doing work and his dead body was found in the morning in a field
under the tree.
(iv) It has come in the evidence of P.W.7 that Radha Deogam and Narde
Purty were searched for recording their statement but, they were not
found, it indicates that after commission of murder of the deceased
Mahesh Chourasia both the accused persons hide themselves.
(v) Exhibit-2 is the postmortem report of the deceased Mahesh Chourasia
and it reveals that digested food material was found in the stomach of
deceased Mahesh Chourasia during postmortem which clearly indicates
that on that night his murder was committed when he was lastly seen with
the Padha Deogam and Narde Purty. Time since death also clearly
indicates that murder of Mahesh Chourasia was committed on that night
when he was seen with both the accused persons of this case.
(vi) It has come in the evidence of Investigating Officer of this case that
on the disclosure of accused Narde Purty, the black colour sleeper of the
deceased Mahesh Chourasia was found and seized, it clearly indicates
that the accused persons of this case have committed the murder of
Mahesh Chourasia.
(vii) It has also come in the evidence of P.W.8 and P.W.9 that black colour
sleeper of the deceased Mahesh Chourasia was recovered and seized in
their presence and on that time apart from them Radha Deogam. Narde
Purty were also present and in their presence, seizure list thereof was
prepared."
9. PW2, PW3 and PW4 are co-workers of Mahesh Chourasia who
have come to the Court to depose that in the evening of 08.08.2011 they
came to the market for enjoining drinks; that they had been doing in the
past. They left Mahesh Chourasia in the company of Radha Deogam and
came to know the next morning that Mahesh Chourasia has been killed.
Mahesh Chourasia was friendly with Radha Deogam and Narde Purty and it
is not the prosecution evidence that the appellants had any animosity or
grudge against Mahesh Chourasia. The evidence of PW2, PW3 and PW4 is
that Radha Deogam also enjoined drinks with Mahesh Chourasia who
stayed in the market with her, while others returned home. A casual meeting
of a friend in a market place is not the kind of material which can be said to
be incriminating against the accused. A friend, a co-villager or an
acquaintance of a person may be seen in his company at a public place and
after some time it may so happened that after enjoining a cup of tea or
coffee or drink they parted company. The evidence of such last seen together
has no relevance unless some criminal intend on the part of the accused was
demonstrated. No witness has come forward to depose in the Court that they
5 Cr. Appeal (DB) No. 1142 of 2017
with
Cr. Appeal (DB) No. 1260 of 2018
have seen Mahesh Chourasia and the appellants leaving the market place in
a particular direction, where ultimately the dead body of Mahesh Chourasia
found - no one has seen any offensive overt act by the appellants in the
market or while leaving the market.
10. In "Navaneethakrishnan v. State" (2018) 16 SCC 161 the
Hon'ble Supreme Court has observed as under:
"22. ................... it is well established that it is the accused who were
last seen with the deceased specially in the circumstances when there is
nothing on record to show that they parted from the accused and since
then no activity of the deceased can be traced and their dead bodies were
recovered later on. It is a settled legal position that the law presumes that
it is the person, who was last seen with the deceased, would have killed
the deceased and the burden to rebut the same lies on the accused to
prove that they had departed. Undoubtedly, the last seen theory is an
important event in the chain of circumstances that would completely
establish and/or could point to the guilt of the accused with some
certainty. However, this evidence alone cannot discharge the burden of
establishing the guilt of the accused beyond reasonable doubt and
requires corroboration."
11. The prosecution evidence on last seen together, in our opinion,
is lacking in necessary details which could have turned this evidence
incriminating against the appellants. The confessional statement of the
appellants and recovery of a slipper allegedly belonging to Mahesh
Chourasia has been used by the prosecution to prove the charge of murder.
In the first place, the slipper recovered allegedly at the instance of Narde
Purty is easily available in the market. None of the witnesses who was with
Mahesh Chourasia in the evening of 08.08.2011 has given a description of
the slipper which Mahesh Chourasia was wearing in the evening. There was
no TIP conducted in respect of the slipper allegedly recovered at the
instance of Narde Purty. In our opinion, recovery of slipper at the instance
of Narde Purty even if found proved does not establish that it belonged to
the deceased. Section 27 of the Indian Evidence Act requires the prosecution
to prove by credible evidence discovery of a new fact which was a relevant
and material fact and not previously known to the police. In "Pulkuri
Kottaya v. Emperor" AIR 1947 PC 67 the Privy Council has held that
discovery of a fact arises by raising of the fact that the information given by
the accused exhibited his knowledge or mental awareness as to its existence
on a particular place, and "discovery of fact" cannot be just identified with
the object produced and found.
12. The confessional statement of Radha Deogam and Narde Purty
6 Cr. Appeal (DB) No. 1142 of 2017
with
Cr. Appeal (DB) No. 1260 of 2018
cannot be used against them as a substantive piece of evidence to record
conviction for murder of Mahesh Chourasia. PW9, who is one of the seizure
witnesses has stated in his cross-examination that he does not remember on
which date Radha Deogam and Narde Purty had confessed their guilt before
the investigating officer. A confession before the police is not admissible
under section 24 of the Indian Evidence Act and it cannot be proved against
the accused as per section 25 of the Indian Evidence Act.
13. The prosecution has failed to prove by leading cogent,
consistent and reliable evidence that the appellants are required in law to
offer a plausible and acceptable explanation regarding what happened to
Mahesh Chourasia after he was seen alive last in their company. The object
behind section 313 of the Code of Criminal Procedure is to offer an
opportunity to the accused to explain the incriminating circumstance
appearing against him and this cannot be used as an evidence against the
accused. The silence of the accused in his examination under section 313 of
the Code of Criminal Procedure would not turn against him if it is found
that the prosecution evidence does not implicate him with the crime - that
precisely is the case against the appellants in the instant case.
14. In "Sujit Biswas v. State of Assam" (2013) 12 SCC 406 the
Hon'ble Supreme Court has observed as under:
"25. An adverse inference can be drawn against the accused only and
only if the incriminating material stands fully established, and the
accused is not able to furnish any explanation for the same. However,
the accused has the right to remain silent, as he cannot be forced to
become a witness against himself."
15. In view of the aforesaid discussions, we are of the opinion that
the prosecution has failed to establish a prima-facie case and, therefore,
onus to prove otherwise would not shift upon the appellants by operation of
section 106 of the Indian Evidence Act. The learned Additional Sessions
Judge-I, West Singhbhum at Chaibasa has committed a serious error in law
while recording conviction of the appellants for committing murder of
Mahesh Chourasia. From a reading of the discussions by the learned trial
Judge, on last seen together theory, we gather that the learned trial Judge has
taken into consideration the observations made by the Hon'ble Supreme
Court in "Bodhraj v. State of J&K" AIR 2002 SC 3164 and "V.K. Mishra v.
State of Uttarakhand" AIR 2015 SC 3043, but did not put the principles in
the fact-situation found in the present case. There may appear grave
7 Cr. Appeal (DB) No. 1142 of 2017
with
Cr. Appeal (DB) No. 1260 of 2018
suspicion against the appellants but the prosecution could not prove the
incriminating circumstances against the appellants.
16. Accordingly, we hold that the conviction of the appellants
under sections 302/34 of the Indian Penal Code is not sustainable.
Therefore, the judgment of conviction dated 23.02.2017 and the order of
sentence dated 28.02.2017 passed against the appellants, namely, Narde
Purty @ Nago [in Criminal Appeal (D.B.) No. 1142 of 2017] and Radha
Deogam [in Criminal Appeal (D.B.) No. 1260 of 2018] of R.I for life and a
fine of Rs.10,000/- each under sections 302/34 of the Indian Penal Code
with default stipulation to suffer further S.I for six months by the learned
Additional Sessions Judge-I, West Singhbhum at Chaibasa in S.T. Case
No.36 of 2012, are set-aside.
17. Mrs. Nehala Sharmin, the learned APP states that the appellant,
namely, Radha Deogam is on bail.
18. Accordingly, the appellant, namely, Radha Deogam
[in Criminal Appeal (D.B.) No. 1260 of 2018] is discharged of liability of
the bail-bonds furnished by her.
19. Mr. Sanjay Kumar Srivastava, the learned APP states that the
appellant, namely, Narde Purty @ Nago who has remained in jail for about
12 years, with remission, is in custody.
20. Accordingly, the appellant, namely, Narde Purty @ Nago
[in Criminal Appeal (D.B.) No.1142 of 2017] who is in custody shall be
set-free forthwith, if not wanted in connection to any other criminal case.
21. In the result, Criminal Appeal (D.B.) No. 1142 of 2017 and
Criminal Appeal (D.B.) No.1260 of 2018 are allowed.
22. Let the lower Court records be sent to the Court concerned
forthwith.
23. Let a copy of the judgment be transmitted to the Court
concerned and the concerned Jail Superintendent through 'Fax'.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated : 22.07.2021
RKM/
N.A.F.R
