Jharkhand High Court
The State Of Jharkhand Through ... vs Mashilal Hembrom on 5 April, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Acquittal Appeal No. 8 of 2014
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The State of Jharkhand through Deputy Commissioner, Dumka,
PO & PS-Dumka, District-Dumka. ... Appellant
Versus
1. Mashilal Hembrom
2. Isha Hembrom
Both s/o Shiblal Hembrom, r/o village-Kairabani, PO &
PS-Muffasil (Dumka), District-Dumka ... Respondents
With
Criminal Appeal (DB) No. 767 of 2013
Mariyam Kisku, w/o Moharil (Muchil), r/o village- Kairabani, PO-
Kairabani, PS-Muffasil Dumka, District-Dumka (Jharkhand).
... Appellant
Versus
1. The State of Jharkhand
2. Mashilal Hembrom
3. Isha Hembrom
Both s/o Shiblal Hembrom, r/o village-Kairabani, PO
Kairabani, PS-Muffasil (Dumka), District-Dumka
(Jharkhand) ... Respondents
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For Appellant/Informant : Mr. Pankaj Kumar, Public Prosecutor
[in Acquittal Appeal No. 8 of 2014]
Mrs. Vani Kumari, Advocate
[in Criminal Appeal (DB) No. 767 of 2013]
For Respondents : Mr. Akhouri Awinash Kumar, Advocate
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ORDER
th
5 April 2023
Per, Shree Chandrashekhar, J.
Mariyam Kisku who is the maternal aunt of Ilyas
Murmu is aggrieved of the judgment dated 30 th August 2013
passed by the Additional Sessions Judge-III, Dumka in Sessions
Trial No. 60 of 2008. The State of Jharkhand has also challenged
the aforesaid judgment passed in Sessions Trial No. 60 of 2008 by
which Mashilal Hembrom and Isha Hembrom have been acquitted
of the charge of murder of Ilyas Murmu aged about 19 years and
causing disappearance of his dead body.
2. On the basis of the fardbeyan of Mariyam Kisku which
2 Acquittal Appeal No. 8 of 2014
With
Criminal Appeal (DB) No. 767 of 2013
was recorded by Amarnath Surin on 17 th May 2006 at around
12:10 AM, Ramgarh PS Case No. 47 of 2006 was lodged against
Mashilal Hembrom and his brother, namely, Isha Hembrom. After
the investigation the accused persons were sent up for trial.
During the trial, the prosecution has examined 10 witnesses out of
whom PW2 Muchil Murmu (Moharil) is the husband of the
informant, PW7 Bonifas Murmu is the father of deceased, PW1 and
PW3 are the close friends of the deceased and PW4, PW5 and PW6
are the co-villagers of PW7.
3. Dr. Chandeshwar Prasad Sinha who conducted the
postmortem examination over the dead body of Ilyas Murmu has
tendered evidence as PW9 to the effect that the dead body was
partially decomposed, maggots were crawling over the dead body
and skin was peeling of at multiple places. PW9 has observed a
defused swelling over right side of the chest and on dissection 4 th,
5th and 6th ribs on the right side of the chest were found fractured.
4. According to PW9, the cause of death was shock and
hemorrhage resulting from the chest injury caused by hard and
blunt substance and the time elapsed since death was 4 to 5 days
from the postmortem examination.
5. The trial Judge has held that except the last seen
evidence produced through PW1 and PW3 no other incriminating
circumstance has been proved by the prosecution so as to
establish complicity of Mashilal Hembrom and Isha Hembrom in
the murder of Ilyas Murmu.
6. The trial Judge has referred to the incriminating
circumstances such as last-seen-together, suspicious movement of
the accused persons after they came back and joined the Baraat
Party, Mashilal Hembrom leaving the village immediately after the
occurrence and motive for the crime. However, on an appreciation
of the materials on record came to a conclusion that the
prosecution has failed to establish the charge under section 302
read with section 34 of the Indian Penal Code and section 201 of
the Indian Penal Code (in short, IPC).
3 Acquittal Appeal No. 8 of 2014
With
Criminal Appeal (DB) No. 767 of 2013
7. While recording the judgment of acquittal the trial
Judge has held as under:
"20. In view of discussion made here in above as well as in the
ratio of law laid down by our Hon'ble Apex Court, this Court find
that the prosecution palpably failed to prove the charges against
any of the accused persons. The manner in which the information
given to the police on 14.05.2006 and 15.05.2006 not brought on
the record and the present first information report Exhibit: 5 also
remain suspicious lodged after delay of four days creates serious
doubt over the case of prosecution. The conduct of accused
Mashilal Hembrom regarding his flee or perplexed condition after
occurrence is neither established to be incriminating nor relevant in
view of law laid down by the Apex Court in case of Sohail
Mahaboob Seikh (Supra) and case of Mohibur Rahman (Supra) and
in view of the fact that first information report (Exhibit: 5) says that
actually the accused did not flee or absconded, rather he went on
duty of Military Service on 14.05.2006. Manner in which the dead
body recovered also creates doubt, identifying material exhibits i.e
wearing clothes, cap and other articles and burnt leather purse
containing photographs as well as burnt identity card of deceased
not placed and proved on the record. The investigating officer
PW10 not visited the actual place of the occurrence at Kobam
village nor describe the same in his evidence where from the
deceased allegedly accompanied with the accused Mashilal
Hembrom after leaving the Barat Party. None of the witnesses from
the house marriage of either side examined or interrogated by the
investigating officer. Apart from the above after discovery of the
dead body also there is contradictions that who had informed the
police first and when. The conduct of star witnesses PW1 & 3
proves themselves as unreliable and their version cannot be
trusted.
21. In composing those facts and circumstances together this
Court finds that the prosecution completely fail to connect any of
the present two accused Mashilal Hembrom and Isha Hembrom
with crime beyond all shadow of reasonable doubts and benefit of
all such doubts and latches given to the accused persons. In
conclusion this Court finds and hold that present both accused
persons namely Mashilal Hembrom and Isha Hembrom are not
guilty for any of the charges U/s 302 read with Sec. 34 Indian
Penal Code or U/s 201 of the Indian Penal Code or for any other
offenses. Accordingly both the accused Mashilal Hembrom and
Isha Hembrom are hereby found and held not guilty, thus
acquitted from the charges U/s 302 read with Sec. 34 Indian Penal
Code U/s 201 of the Indian Penal Code leveled against them.
Both persons Mashilal Hembrom and Isha Hembrom are on
bail and being acquitted they along with their respective sureties
are hereby discharged from the liabilities of their bail bonds. The
Office is directed to record the result in the Sessions Trial Register
and deposit the record in the Record Room after transmitting a
copy of the judgment to Deputy Commissioner, Dumka for
information and needful."
8. The case of the prosecution is based on circumstantial
evidence and according to the prosecution the circumstance of
last-seen-together if considered together with motive for the crime
would conclusively establish the guilt of the respondents.
4 Acquittal Appeal No. 8 of 2014
With
Criminal Appeal (DB) No. 767 of 2013
9. In a case based on circumstantial evidence the
prosecution is required to prove the circumstances by producing
cogent and credible evidence. Not only that the circumstances
sought to be established by the prosecution must be of definite
character and all the circumstances taken together must lead to an
inescapable conclusion that the accused has committed the crime.
The circumstance of last-seen-together is sufficient to raise a
strong suspicion but certainly not sufficient enough to prove the
guilt of the accused. When the deceased was found alive last in the
company of the accused and immediately thereafter his dead body
is recovered a strong presumption would arise in law that the
accused is the person who has committed the murder unless he
offers some plausible and acceptable explanation. Mr. Pankaj
Kumar, the learned Public Prosecutor and Mrs. Vani Kumari, the
learned counsel for the informant have contended that there is no
explanation offered by the accused persons when they were
examined under section 313 of the Code of Criminal Procedure.
10. In a long line of judgments the Hon'ble Supreme Court
has held that howsoever strong suspicion may be it is not sufficient
to prove the guilt of the accused. The circumstance of last-seen-
together sought to be relied upon against the respondents is not of
definite character. PW1 and PW2 who tendered evidence in the
Court are contradicting each other. Mr. Akhouri Awinash Kumar,
the learned counsel for the respondents would submit that a
Baraat Party in which more than 200 to 500 persons were drinking
and dancing, except PW3 no other witness has seen Mashilal
Hembrom taking away Ilyas Murmu on a motorcycle. This is also
the prosecution evidence that Mashilal Hembrom was nurturing
suspicion about illicit relationship of his wife with Ilyas Murmu.
The case set-up by the respondents is that on account of such
suspicion they have been implicated in the case. We further find
that the proximity test which was evolved in "Bodhraj v. State of
J & K" (2002) 8 SCC 45 is not satisfied in the present case
inasmuch as 4 days after Ilyas Murmu had gone missing his dead
5 Acquittal Appeal No. 8 of 2014
With
Criminal Appeal (DB) No. 767 of 2013
body was recovered about 15 KM away from Ramgarh PS.
11. In "Rajender v. State (NCT of Delhi)" (2019) 10 SCC 623
the Hon'ble Supreme Court has observed as under:
"12.2.4. Having observed so, it is crucial to note that the
reasonableness of the explanation offered by the accused as to
how and when he/she parted company with the deceased has a
bearing on the effect of the last seen in a case. Section 106 of the
Evidence Act, 1872 provides that the burden of proof for any fact
that is especially within the knowledge of a person lies upon such
person. Thus, if a person is last seen with the deceased, he must
offer an explanation as to how and when he parted company with
the deceased. In other words, he must furnish an explanation that
appears to the court to be probable and satisfactory, and if he fails
to offer such an explanation on the basis of facts within his special
knowledge, the burden cast upon him under Section 106 is not
discharged. Particularly in cases resting on circumstantial
evidence, if the accused fails to offer a reasonable explanation in
discharge of the burden placed on him, such failure by itself can
provide an additional link in the chain of circumstances proved
against him. This, however, does not mean that Section 106 shifts
the burden of proof of a criminal trial on the accused. Such burden
always rests on the prosecution. Section 106 only lays down the
rule that when the accused does not throw any light upon facts
which are specially within his/her knowledge and which cannot
support any theory or hypothesis compatible with his innocence,
the court can consider his failure to adduce an explanation as an
additional link which completes the chain of incriminating
circumstances."
12. Mrs. Vani Kumari, the learned counsel for the
informant has referred to the judgment in "Ram Gopal v. The State
of Madhya Pradesh" [Special Leave Petition (Crl.) No. 9221 of 2018]
wherein the Hon'ble Supreme Court has observed as under:
"9. In view of the afore-stated legal position, it is discernible that
though the last seen theory as propounded by the prosecution in a
case based on circumstantial evidence may be a weak kind of
evidence by itself to base conviction solely on such theory, when
the said theory is proved coupled with other circumstances such
as the time when the deceased was last seen with the accused,
and the recovery of the corpse being in very close proximity of time,
the accused does owe an explanation under Section 106 of the
Evidence Act with regard to the circumstances under which death
might have taken place. If the accused offers no explanation or
furnishes a wrong explanation, absconds, motive is established
and some other corroborative evidence in the form of recovery of
weapon etc. forming a chain of circumstances is established, the
conviction could be based on such evidence."
13. Having regard to the aforesaid facts and circumstances
in the case, we find no compelling reason to interfere with the
judgment of acquittal of the respondents recorded in Sessions Trial
No. 60 of 2008 and, accordingly, Acquittal Appeal No. 8 of 2014
6 Acquittal Appeal No. 8 of 2014
With
Criminal Appeal (DB) No. 767 of 2013
and Criminal Appeal (DB) No. 767 of 2013 are dismissed.
14. Let the lower Court records be transmitted to the Court
concerned, forthwith.
15. Let a copy of the Judgment be transmitted to the Court
concerned through FAX.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 5th April 2023
Amit
N.A.F.R
