(Against The Judgment Of ... vs The State Of Bihar (Now Jharkhand)
2023 Latest Caselaw 517 Jhar

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           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      Cr. Appeal (DB) No.122 of 1994 (R)
                                   ------
      (Against the Judgment of conviction and Order of sentence dated
      30.06.1994 passed by the Additional Sessions Judge, Seraikella in
      Sessions Trial No.193/92)
                                   ------
      Sahodar Mahto, Son of Late Sobha Mahto, resident of village Loboda,
      P.S. Tamar, District-Ranchi
                                                .....         Appellant

                                     Versus
      The State of Bihar (now Jharkhand)           .....          Respondent


       CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                 HON'BLE MR. JUSTICE SUBHASH CHAND
                                 .....
      For the Appellant   : Mr. P.S. Dayal, Advocate
      For the State       : Mr. Azeemuddin, APP
                                 .....

C.A.V. on 25.01.2023                         Pronounced on 01/.02/.2023

Per Sujit Narayan Prasad, J.

The instant appeal is against the Judgment of conviction and

Order of sentence dated 30.06.1994 passed by the Additional Sessions

Judge, Seraikella in Sessions Trial No.193/92, whereby and

whereunder, the appellant has been convicted for the offence under

Sections 302 and 201 of the Indian Penal Code and directed to undergo

rigorous imprisonment for life for the commission of offence under

Section 302 of the Indian Penal Code and further to undergo rigorous

imprisonment for one year under Section 201 of the Indian Penal Code

and both the sentences have been directed to run concurrently.

2. The prosecution story in brief as per the version of the informant

is that his daughter, namely, Ahilya (deceased) was married in 1988

with accused Sahodar Mahato of village Laboda within Tamar Police

Station of Ranchi District. It has been alleged that after one year of

marriage, the accused and his brother, namely, Ghasu Mahato and their

mother subjected Ahilya to cruelty by abusing and assaulting her. On

20-22 days prior to 01.08.1991, accused Sahodar brought Ahilya to the

house of the informant where Ahilya complained about the aforesaid

cruelty. On 25.07.1991, accused Sahodar again came to the house of

the informant for the purpose of taking Ahilya back to his house. The

informant sent Ahilya with accused Sahodar giving a lesson to accused

that he will keep his wife in a proper way. On 30.07.1991, Sahodar

again came to the house of the informant Haray Krishna Mahato,

P.W.1 and asked whether Ahilya had come there. The informant was

surprised. He replied that Ahilya had not come there. Accused Sahodar

left the informant's house after saying that he is going in search of

Ahilya and also suggested the informant to search Ahilya. On

31.07.1991 at 7:00 p.m., Gobind Mahato, son of informant's uncle saw

a dead body in the field of Pancha Nand Munda and told about this to

the informant. The informant along with Phoolchand Gope-P.W.4,

Hargobind Mahato-P.W.6, Badri Nath Mahato-P.W.9, Ram Krishna

Mahato and Jyoti Mahato reached at the field of Pancha Nand Singh

Munda and saw the dead body which was decomposed. They could not

identify the dead body in the night and kept two persons to watch the

dead body. On the next morning, they identified that the dead body was

of Ahilya (deceased). Thereafter, they sent Choukidar Sanatan Gope to

the Police Station who brought the Police at the spot where the

fardbeyan of the informant was recorded on 01.08.1991 at 14 hours.

The informant has alleged that Ahilya was murdered by her in-laws

and the dead body was concealed in the aforesaid field.

The F.I.R. was instituted on the basis of the aforesaid fardbeyan

on 01.08.1991. The Police had conducted investigation and submitted

charge-sheet against the accused persons including the appellant for the

commission of offence under Section 302/34 of the Indian Penal Code.

The case was committed to the Court of Sessions on 09.06.1992.

On 05.11.1992, the 3rd Additional Sessions Judge has framed charge

against the accused persons and thereafter, the trial commenced.

3. The prosecution altogether has examined 12 witnesses, basis

upon which, the learned trial Court has come to the conclusion that the

prosecution has been able to prove the charge against the appellant

beyond all shadow of doubts for committing offence of causing murder

of Ahilya, wife of the appellant and as such, found him guilty of

commission of offence under Sections 302 and 201 of the Indian Penal

Code and accordingly, sentenced him to undergo rigorous

imprisonment for life for the commission of offence under Section 302

of the Indian Penal Code and further, rigorous imprisonment for one

year for the offence under Section 201 of the Indian Penal Code, which

is the subject matter of the instant appeal.

4. Mr. P.S. Dayal, learned counsel appearing for the appellant has

taken the following grounds in assailing the impugned judgment of

conviction:-

(i) The learned trial Court has not appreciated the major

discrepancy which has been crept up in the testimony of the

prosecution witnesses.

It has been submitted that P.W.1, namely, Haray Krishna Mahato

had disclosed that the deceased Ahilya was brought by the appellant to

her in-laws house but it has not conclusively been proved that the

deceased Ahilya was brought to her in-laws house where the murder

has been alleged to be committed and as such, the learned trial Court

without reaching to the conclusion about the fact that the deceased

Ahilya was brought to her in-laws house, has found the charge of

commission of murder of Ahilya to be proved against the appellant and

as such, the same cannot be said to be justified in absence of any

concrete evidence of bringing the deceased Ahilya to her in-laws

house.

(ii) There are other discrepancies in the testimony of the

prosecution witnesses and as such, on this ground alone, the entire

prosecution story vitiates but having not considered this aspect of the

matter, the learned trial Court since has convicted the appellant and as

such, the judgment of conviction is not sustainable in the eye of law.

(iii) Another accused person, namely, Ghasu Mahto happens to

be the brother of the appellant has been acquitted for the commission of

offence under Sections 302 and 201 of the Indian Penal Code on the

basis of the same testimony, then on what basis there can be conviction

of the appellant on the basis of the same testimony.

(iv) The Investigating Officer has not been examined in this case

and as such, the prosecution case on this ground also, rendered to be

fatal, reason being that the place of occurrence from where the dead

body was found, had not been identified.

(v) The prosecution has also failed to establish the case of

murder since even the Doctor had not opined the cause of death due to

want of viscera which has never been produced before the trial Court.

5. Learned counsel for the appellant has submitted on the basis of

the aforesaid grounds that the learned trial Court even though having

not found any direct evidence of committing murder by the appellant,

has convicted on the basis of the circumstance but the principle upon

which the conviction can be based on the basis of circumstance, i.e.,

the completion of chain is not available if the testimony of the

prosecution witnesses will be read together.

6. Learned counsel for the appellant, in the backdrop of the

aforesaid ground has submitted that the impugned judgment is not

sustainable and as such, the same requires to be interfered with.

7. Per contra, Mr. Azeemuddin, learned counsel for the State-APP

has submitted by defending the order of conviction taking the ground

that P.W.1-father of the deceased, mother and all other witnesses have

supported the prosecution version, basis upon which, the judgment of

conviction has been passed and as such, the same cannot be said to

suffer from an error.

8. It has been submitted that it has come in the testimony of the

witnesses that on 25.07.1991 the appellant had come to his in-laws

house for the purpose of taking Ahilya back to his house. The

informant-father of the deceased sent Ahilya with accused Sahodar to

her in-laws house but she became traceless and after lapse of 5 days

from the date of bringing his wife to her in-laws house, had gone to the

maternal house of the deceased for searching out his wife and

thereafter, he started searching his wife which itself shows that the

conduct of the appellant being the husband is unnatural, since, his wife

has become traceless for five days but there is no missing report and as

such, it is onus upon the appellant to substantiate the said conduct as

per the provision as contained under Section 106 of the Indian

Evidence Act, 1872.

The learned trial Court after taking into consideration the

aforesaid aspect of the matter if convicted the appellant and acquitted

one of the accused person, namely, Ghasu Mahato who happens to be

the brother of the appellant by taking into consideration his

accountability being the husband to substantiate as to why the missing

report has not been lodged and if that has been taken into consideration

by the learned trial Court by making distinction in between the brother

of the appellant by acquitting him and the appellant by convicting,

which cannot be said to suffer from an error.

It has further been submitted that the circumstance of chain after

taking into consideration the testimony of prosecution witnesses is

complete and as such, the same having been taken into consideration,

the judgment of conviction has been passed by the learned trial Court,

hence, the same cannot be said to suffer from an error.

9. Learned counsel appearing for the State-APP on the basis of the

aforesaid ground has submitted that the judgment of conviction does

not require any interference.

10. We have proceeded to examine the legality and propriety of the

impugned judgment after taking into consideration the ground as has

been agitated on behalf of the parties and in order to assess, this Court

deems it fit and proper to discuss the testimony of prosecution

witnesses.

P.W.1, namely, Haray Krishna Mahato who was the father of the

deceased Ahilya has stated that marriage of his daughter was

solemnized with Sahodar Mahato. He has stated that immediately after

solemnization of marriage, the appellant, his brother (Ghasu Mahato),

and their mother used to abuse and torture the deceased. He has stated

that 20-22 days prior to the date of occurrence, the appellant, Sahodar

Mahto had left his daughter Ahilya Mahatain to his parental house. He

has stated that he was informed by his daughter, she was being abused

and tortured by her husband, brother-in-law, mother-in-law and father-

in-law.

It has been stated that on 25.07.1991, the day was Thursday, his

son-in-law, Sahodar Mahto, came to his house for taking his daughter,

Ahilya Devi and had taken to her matrimonial house. It has also been

stated that at that time, he had asked Sahodar Mahto to keep Ahilya

properly. He has stated that on 30.07.1991, the day was Tuesday, his

son-in-law, Sahodar Mahto, came to the house and asked as to whether

Ahilya had come here.

It has been informed that Ahilya had left the house. It has been

stated by him that he has said to his son-in-law that Ahilya has not

reached to his house. His son-in-law has stayed for 10 to 15 minutes

and thereafter returned back. It has been stated that son-in-law at the

time of leaving the house had asked also to trace out Ahilya Devi. It

has been stated by him that thereafter, he started searching out his

daughter Ahilya and in course thereof at about 6:00 p.m. in the evening

on 31.07.1991, son of his uncle, namely, Hargobind Mahato has

informed him that one dead body was lying in the paddy field of one

Pancha Nand Singh Munda. P.W.1 immediately after getting such

information has reached to the field along with Phool Chand Gope, Dal

Gobind Mahato, Radha Krishna Mahato etc. and found there a

decomposed dead body from which the smell was coming.

It has been stated by him that due to body having been

decomposed, the body was not identified at night. He has also stated

that two persons had been left at the place where the dead body was

lying and all had returned back to their house. In the morning of the

next day, all persons had again reached to the field of Pancha Nand

Singh Munda where this witness identified the dead body to be of his

daughter Ahilya. He has stated that due information was given to

Sanatan Gope, the Choukidar. Sanatan Gope had reached to the Police

Station and brought Jamadar, thereafter, Jamadar recorded the

fardbeyan of P.W.1 and P.W.2.

It has been stated that the appellant prior to solemnizing

marriage with Ahilya, had already solemnized marriage twice but had

left both the wives. It has been stated that he has suspected that the

Sahodar Mahto, his brother, Ghasu Mahto along with their mother had

committed murder of his daughter Ahilya Mahatain and concealed the

dead body in the paddy field of the Pancha Nand Singh Munda.

In the cross-examination, it transpires that there is no

inconsistency in the statement as has been stated by him in the

examination-in-chief. It is evident from the statement so recorded in

paragraph-17 that he has reiterated the statement about taking the

deceased by the appellant on 25.07.1991 to her in-law house and at that

time, he has not restrained his daughter not to go her in-laws house.

Niro Mahatain has been examined as P.W.2 who happens to be

the mother of the deceased Ahilya Devi and has stated at paragraph-2

that 20-25 days prior to the date of occurrence, Sahodar Mahto,

appellant had left his wife Ahilya Devi to her parental house and after

sometime, she was taken by him to her matrimonial house.

It has been stated by her at paragraph-3 that after five to six days,

her son-in-law, Sahodar Mahto had reached to her house and asked

about Ahilya. Upon this, a reply was given by her that Ahilya had not

come to her house and after hearing the same, the appellant had

returned back immediately. She has stated at paragraph-4 that she

thereafter had started tracing out her daughter and found the dead body

concealed in the paddy field of one Pancha Nand Singh Munda in

decomposed condition and from its appearance it seems to be the dead

body of three to four days. P.W.2, therefore, has suspected that her

daughter had been murdered by the appellant, Sahodar Mahto, Ghasu

Mahto and their mother.

She has been cross-examined and it transpires from her

deposition that no inconsistent testimony has come. It appears from the

deposition made at paragraph-13 that the dead body was having no

injury but her tongue was protruded.

P.W.3, Kalpana Mahatain, P.W.4, Phool Chand Gope, P.W.7,

Dal Gobind Mahato, P.W.8, Vijay Kumar Mahato, P.W.9, Baidnath

Mahto @ Vodi Mahto and P.W.12 Nand Ram Mahato are tendered

witnesses.

Radha Krishna Mahto has been examined as P.W.5 and has

stated in his testimony that on Wednesday, while he was in his house in

the evening, he had been informed about a dead body but the dead

body could not have been identified due to night. It has been stated by

him that on the second day, when he along with Har Gobind Mahato,

Dal Gobind Mahato and other villagers reached to the Paddy field of

Pancha Nand Singh Munda and after identifying the dead body to be

the daughter of Haray Krishna Mahto, the deceased Ahilya Devi. He

has stated that he had found the sign of injury on the neck and left leg

of the dead body. It has been stated at paragraph-4 that Ahilya Devi

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was subjected to torture by the mother-in-law, husband and brother-in-

law. He has stated that 20-22 days prior to the date of occurrence, the

husband of the Ahilya Devi had left his wife to her parental house but

subsequent thereto, he again taken her to her matrimonial house on

Thursday. On Tuesday of the next week, he came to his in-laws house

and asked about whereabouts of his wife Ahilya Devi and after asking

about Ahilya Devi, Sahodar fled away immediately. He has stated that

thereafter, they started tracing out Ahilya Devi and found her dead

body.

He has been cross-examined and it transpires from the testimony

as has been recorded in the cross-examination that he has not said

anything inconsistent what he has deposed in examination-in-chief.

Hargovind Mahto has been examined as P.W.6 and has

supported the prosecution version. He has stated that at paragraph-4

that there was sign of cut in the neck of dead body of Ahilya Devi and

sign of injury in the left knee. He has stated that since the dead body

was decomposed and from her Saree, she had been identified to be the

dead body of Ahilya Devi.

He has been cross-examined and has not said anything which can

be said to be inconsistent to the testimony what has been said by him in

the examination-in-chief.

Doctor, Tulsi Mahto has been examined as P.W.11 who had

conducted the postmortem and found the following injuries in the dead

body of the deceased:-

(i) Right half of frontal temporal and occipital region of scalp

including the right face were eaten away by maggots.

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There is no bony lesion over these regions. However, there

was contusion of scalp of the forehead. All the shaft

tissues of the nose and right eye were eaten away.

Right leg from elbow the knee joint the soft tissues

were eaten away by maggots and animals. The leg

bones were exposed showing no evidence of any

sharp cutting injury or any fracture. There is

contusion of medial aspect of right leg over an area

of 1'' cm x 5 cm.

(ii) Internally-All the organs were normal but decomposed.

The membrane of the brain were intact but brain matter

was liquefied. The stomach was empty. The uterus was

normal and non-pregnant. Lungs were contracted. Heart,

kidneys and spleen were normal. Nothing abnormal was

found on the private parts.

The Doctor has not given the cause of death for want of the

chemical examiners report for which viscera was preserved.

It is evident from the testimony of Doctor that the death was

shown to be within six to ten days from the date of conducting autopsy.

It is thus, evident after going through the testimony of P.W.1

Haray Krishna Mahato, P.W.2 Niro Mahatain, P.W.5 Radha Krishna

Mahato, P.W.6 Hargovind Mahato and P.W.11 Dr. Tulsi Mahato that

all have supported the prosecution version.

There is no inconsistency so far as the statement regarding

taking Ahilya Devi by the appellant to her matrimonial house on Friday

and came to her parental house on Tuesday of the next week for tracing

Ahilya Devi (deceased) and it is only thereafter, the prosecution

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witnesses had started tracing out the deceased and in course thereof, the

dead body has been found in the paddy field of one Pancha Nand Singh

Munda.

Admittedly herein, nobody had seen the commission of crime

and as such, the case is based on the circumstantial evidence.

11. This Court before proceeding to see as to whether on the basis of

the available evidences, the same can be said to be proper

circumstantial evidence warranting conviction of the appellant.

12. The Hon'ble Apex Court in the year 1952, in the judgment

rendered in Hanumant Son of Govind Nargundkar vs. State of

Madhya Pradesh [AIR 1952 SC 343] has laid down the parameters

under which, the case of circumstantial evidence is to be evaluated,

which suggests that:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. ......"

The judgment referred in Hanumant (supra) has been

consistently followed by Hon'ble Apex Court in the judgment rendered

in Tufail (Alias) Simmi Vs. State of Uttar Pradesh [(1969) 3 SCC

198]; Ram Gopal Vs. State of Maharashtra [(1972) 4 SCC 625] and

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Sharad Birdhichand Sarda Vs. State of Maharashtra [(1984) 4 SCC

116 and also in Musheer Khan alias Badshah Khan & Anr. Vs. State

of Madhya Pradesh [(2010) 2 SCC 748.

The Hon'ble Apex Court in Musheer Khan (Supra) while

discussing the nature of circumstantial evidence and the burden of

proof of prosecution has held as under paragraph nos. 39 to 46 as

under:

39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances.

40. Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical formula" since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches". The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence.

41. To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. (See Raghav Prapanna

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Tripathi v. State of U.P. [AIR 1963 SC 74 : (1963) 1 Cri LJ 70] )

42. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. (See State of U.P. v. Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 : 1992 Cri LJ 3693] , SCC p. 309, para 20.)

43. While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali v. King Emperor [21 CWN 1152 : 43 IC 241] (IC at para 14) that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail.

44. The next principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis except his guilt.

45. When a murder charge is to be proved solely on circumstantial evidence, as in this case, presumption of innocence of the accused must have a dominant role. In Nibaran Chandra Roy v. King Emperor [11 CWN 1085] it was held that the fact that an accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Evidence Act may have in civil or in less serious criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence.

46. The same principles have been followed by the Constitution Bench of this Court in Govinda Reddy v. State of Mysore [AIR 1960 SC 29 : 1960 Cri LJ 137] where the learned Judges quoted the principles laid down in Hanumant Govind Nargundkar v. State of M.P. [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] The ratio in Govind [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri

- 15 -

LJ 129] quoted in AIR para 5, p. 30 of the Report in Govinda Reddy [AIR 1960 SC 29 : 1960 Cri LJ 137] are:

"5. ... '10. ... in cases where the evidence is of a circumstantial nature, the circumstances [which lead to the conclusion of guilt should be in the first instance] fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be [shown] that within all human probability the act must have been [committed] by the accused.' [ As observed in Hanumant Govind Nargundkar v. State of M.P., (1952) 2 SCC 71 : AIR 1952 SC 343 at pp. 345-46, para 10.] "

The same principle has also been followed by this Court in Mohan Lal Pangasa v. State of U.P. [(1974) 4 SCC 607 : 1974 SCC (Cri) 643 : AIR 1974 SC 1144]

13. Thus , it is evident that for proving the charge on the basis of

circumstantial evidence, it would be necessary that evidence so

available must induce a reasonable man to come to a definite

conclusion of proving of guilt; meaning thereby there must be a chain

of evidence so far it complete as not to leave any reasonable ground for

a conclusion consistent with the innocence of the accused and it must

be such as to show that within all human probability the act must have

been done by the accused .

14. The argument has been advanced on behalf of the appellant that

on the same set of testimony, another accused person, namely, Ghasu

Mahato has been acquitted while on the same set of testimony, the

appellant has been convicted.

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15. We have considered the said argument by taking into

consideration the finding recorded by the learned trial Court as under

paragraph-11 of the impugned judgment, wherein, the learned trial

Court while coming to the conclusion about strong circumstances

against the appellant Sahodar has given the following circumstances to

prove the guilt committed by him:-

"(a) Accused Sahodar was last seen with the deceased on

25.07.1991 and thereafter the deceased was not seen alive.

(b) Before occurrence, the deceased was being subjected to

cruelty by her-in-laws as complained by her to P.Ws.1 and 2

and this circumstance is admissible under Section 32(1) of

the Indian Evidence Act because it ultimately resulted in her

death.

(c) Death took place between 25.07.1991 when the deceased

went with accused Sahodar to 27.07.1991 (vide evidence of

Doctor P.W.11). But accused Sahodar kept mum and after

reasonable delay, he enquired about the deceased on

30.07.1991. Prior to 30.07.1991 he had not reported about

his missing wife either to her parents (P.Ws.1 and 2) or to

any other authority.

(d) Under aforesaid circumstances, after committing

murder, the accused Sahodar allowed the marks of

antemortem injuries to disappear and as such, P.W.11 could

not find such antemortem injuries and cause of death. This

fact proves charge under Section 201 I.P.C. against the

accused Sahodar."

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Another accused person, namely, Ghasu Mahato has been

accused on the ground that save and except the circumstance no.(b), the

rest circumstances are not applicable against the accused Ghasu

Mahato.

The circumstance as under circumstance no.(a), wherein, it has

been considered by the learned trial Court that the accused Sahodar

was last seen with the deceased on 25.07.1991 and thereafter the

deceased was not seen alive.

The circumstance no.(b) reflects that the learned trial court has

considered that before occurrence, the deceased was being subjected to

cruelty by her-in-laws as complained by her to P.W.1 and P.W.2 and

this circumstance is admissible under Section 32(1) of the Indian

Evidence Act because it ultimately resulted in her death.

The circumstance no.(c) reflects that death took place between

25.07.1991 when the deceased went with accused Sahodar to

27.07.1991 (vide evidence of Doctor P.W.11). But appellant Sahodar

kept mum and after reasonable delay, he enquired about the deceased

on 30.07.1991, prior to 30.07.1991 he had not reported about his

missing wife either to her parents (P.W.1 and P.W.2) or to any other

authority.

The circumstance no.(d) refers that under aforesaid

circumstances, after committing murder, the appellant Sahodar allowed

the marks of antemortem injuries to disappear and as such, P.W.11

could not find such antemortem injuries and cause of death. The said

fact has been considered to be available for the charge under Section

201 of the Indian Penal Code against the appellant Sahodar.

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The circumstance nos.(a), (c) and (d) has correctly been made

applicable to the appellant since he being the husband was more

accountable to explain and proof since he was having with the

knowledge that his wife was with him since being the husband he had

brought his wife Ahilya Devi to her matrimonial house on 25.07.1991

and thereafter became traceless and he started enquiring about her only

after lapse of five days as per the testimony of the witnesses and hence,

burden of proof of fact was upon him about the whereabouts of the

deceased.

The said eventuality has correctly not been applied to another

accused person, namely, Ghasu Mahato, save and except, the

circumstance no.(b), wherein, the circumstance is about cruelty of in-

laws as complained by the deceased to P.W.1 and P.W.2 as has been

held admissible under Section 32(1) of the Indian Evidence Act and as

such, the learned trial court has rightly not convicted the another

accused, namely, Ghasu Mahato for commission of offence under

Sections 302 and 201 of the Indian Penal Code.

Therefore, this Court is of the view that the evidence which has

been gathered by the Investigating Agency in course of investigation

having been corroborated by P.W.1 Haray Krishna Mahato, P.W.2 Niro

Mahatain, P.W.5 Radha Krishna Mahato, P.W.6 Hargovind Mahato

and P.W.11 Dr. Tulsi Mahato, the same can be said to be a

distinguished factor in treating the appellant differently with that of

Ghasu Mahato, the another accused person.

Further, the evidence which has come, as would be apparent

from the testimonies of P.W.1 Haray Krishna Mahato, P.W.2 Niro

Mahatain, P.W.5 Radha Krishna Mahato, P.W.6 Hargovind Mahato

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and P.W.11 Dr. Tulsi Mahat that circumstance is such that culpability

of the appellant cannot be said to have not there.

16. It requires to refer herein after taking into consideration that the

wife having been traceless as per the version of the appellant itself

from 25.07.1991 to 31.07.1991, i.e., from Thursday to Wednesday of

the next week but the deceased having wife of the appellant and

daughter-in-law, even though was missing from the matrimonial house

but there is no missing report and as such, in view of the provision of

Section 106 of the Indian Evidence Act, the burden of proving fact

especially within the knowledge since was with the appellant,

therefore, it ought to have been proved.

17. The position of law is well settled that the prosecution must

discharge the initial burden of establishing prima facie the guilt of the

accused beyond all reasonable doubt as per the provision of Section

101 of the Indian Evidence Act but Section 106 is an exception to

section 101 and it is not attracted unless the initial burden of the

prosecution is proved.

In this context, the Hon'ble Apex Court in the judgment

rendered in Joshinder Yadav Vs. State of Bihar reported in (2014) 4

SCC 42 held at paragraphs 16, 17, 18 considering the implication of

the provision of Section 106 of the Evidence Act has held as under:

"16. In our opinion, the prosecution having established that the accused treated the deceased with cruelty and that they subjected her to harassment for dowry, the accused ought to have disclosed the facts which were in their personal and special knowledge to disprove the prosecution case that they murdered Bindula Devi. Section 106 of the Evidence Act covers such a situation. The burden which had shifted to the accused was not discharged by them. In this connection, we may usefully

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refer to the judgment of this Court in Shambhu Nath Mehra v. State of Ajmer [Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 : 1956 Cri LJ 794] wherein this Court explained how Section 101 and Section 106 of the Evidence Act operate. Relevant portion of the said judgment reads thus : (AIR p. 406, paras 10-11) "10. Section 106 is an exception to Section 101. Section 101 lays down the general rule about the burden of proof. '101.Burden of proof.--Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.' Illustration (a) says--

'A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.'

11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience."

17. In Balram Prasad Agrawal v. State of Bihar [(1997) 9 SCC 338 : 1997 SCC (Cri) 612] the prosecution had established the cruel conduct of the accused i.e. her husband and members of his family and the sufferings undergone by the deceased at their hands. The unbearable conduct of the accused ultimately resulted in her death by drowning in the well in the courtyard of the accused's house. This Court observed that what happened on the fateful night and what led to the deceased's falling in the well was wholly within the personal and special knowledge of the accused. But they kept mum on this aspect. This Court observed that it is true that the burden is on the prosecution to prove the case beyond reasonable doubt. But once the prosecution is found to have shown that the accused were guilty of persistent conduct of cruelty qua the deceased spread

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over years as was well established from the unshaken testimony of father of the deceased, the facts which were in the personal knowledge of the accused who were present in the house on that fateful night could have been revealed by them to disprove the prosecution case. This Court observed that the accused had not discharged the burden which had shifted to them under Section 106 of the Evidence Act. While coming to this conclusion, this Court relied on Shambhu Nath Mehra [Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404 : 1956 Cri LJ 794] .

18. In the present case, the deceased was admittedly in the custody of the accused. She disappeared from their house. As to how her dead body was found in the river was within their special and personal knowledge. They could have revealed the facts to disprove the prosecution case that they had killed Bindula Devi. They failed to discharge the burden which had shifted to them under Section 106 of the Evidence Act. The prosecution is not expected to give the exact manner in which the deceased was killed. Adverse inference needs to be drawn against the accused as they failed to explain how the deceased was found dead in the river in one foot deep water.

Further, reference, in this regard be made to the judgment

rendered in Tulshiram Sahadu Suryawanshi & Anr Vs. State of

Maharashtra (supra) reported in (2012) 10 SCC 373 at paragraph 22

held as under:

"22. The evidence led in by the prosecution also shows that at the relevant point of time, the deceased was living with all the three accused. In other words, the appellants, their son A-3 and the deceased were the only occupants of the house and it was, therefore, incumbent on the appellants to have tendered some explanation in order to avoid any suspicion as to their guilt. All the factors referred above are undoubtedly circumstances which constitute a chain even stronger than the account of an eyewitness and, therefore, we are of the opinion that conviction of the appellants is fully justified."

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18. Here in the facts of the given case as has transpired from the

testimony of the P.W.1 Haray Krishna Mahato, P.W.2 Niro Mahatain,

P.W.5 Radha Krishna Mahato, P.W.6 Hargovind Mahato and P.W.11

Dr. Tulsi Mahato that the appellant had brought his wife to her

matrimonial house on 25.07.1991 and thereafter reached to his in-laws

house to search out his wife and as such, now burden shifts from

prosecution to prove the charge beyond all shadow of doubts as

required to be proved in view of the provision of Section 101 of the

Indian Evidence Act, 1872 by shifting it to the accused to explain the

circumstances leading to death of the deceased Ahilya Devi.

19. The learned trial Court after taking into consideration has found

the circumstances available finding the culpability of the appellant for

causing death of the deceased, therefore, the same cannot be said to

suffer from an error.

20. The argument has also been advanced that there is inconsistency

in the testimony of the prosecution witnesses but we, after taking into

consideration the testimony of P.W.1 Haray Krishna Mahato, P.W.2

Niro Mahatain, P.W.5 Radha Krishna Mahato, P.W.6 Hargovind

Mahato and P.W.11 Dr. Tulsi Mahato has found therefrom that there is

no inconsistency in their testimony thereof to the effect that the

appellant has taken his wife to her matrimonial house and after 5 days,

he had gone to his in-laws house to search out his wife and that

testimony has been given by these prosecution witnesses without any

inconsistency and hence, the prosecution has established prima facie

guilt against the appellant and as such, it is now onus upon the

appellant to explain the circumstances leading to the death of the

deceased and therefore, merely because there are some

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inconsistency/discrepancy, the circumstances which have come on

taking together the testimony of prosecution witnesses, the prosecution

cannot be said to be vitiated.

Further ground has been raised that the Investigating Officer has

not been examined and as such, the prosecution is to vitiate but the

position of law in this regard is very much clear that merely due to non-

examination of the Investigating Officer, the prosecution cannot be

allowed to be vitiated, as has been held by the Hon'ble Apex Court in

the case of Raj Kishore Jha Vrs. State of Bihar & Ors., reported in

(2003) 11 SCC 519, wherein, at paragraph-11, it has been held as

under:-

"11. Mere non-examination of the Investigating Officer does not in every case cause prejudice to the accused or affects the creditability of the prosecution version. In Ram Dev v. State of U.P. [1995 Supp (1) SCC 547 : 1995 SCC (Cri) 402 (2)] it was noted that non-examination of the Investigating Officer does not in any way create any dent in the prosecution case, much less affect the credibility of otherwise trustworthy testimony of the eyewitnesses. It was, however, indicated that it is always desirable for the prosecution to examine the Investigating Officer. In the present case after examination-in-chief and partial cross-examination, the Investigating Officer had died. Therefore, this cannot be a case which can be stated to have caused any prejudice to the accused on account of the Investigating Officer's non- examination. The prosecution cannot be attributed with any lapse or ulterior motive in such circumstances. In Behari Prasad v. State of Bihar [(1996) 2 SCC 317 : 1996 SCC (Cri) 271] it was held that a case of prejudice likely to be suffered

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mostly depends upon facts of each case and no universal straitjacket formula should be laid down that non-examination of the Investigating Officer per se vitiates the criminal trial. The said view has been found echoed in Ambika Prasad v. State (Delhi Admn.) [(2000) 2 SCC 646 : 2000 SCC (Cri) 522] , Bahadur Naik v. State of Bihar [(2000) 9 SCC 153 :

2000 SCC (Cri) 1186] and Ram Gulam Chaudhary v. State of Bihar [(2001) 8 SCC 311 : 2001 SCC (Cri) 1546 : JT (2001) 8 SC 110]."

Likewise, the Hon'ble Apex Court in the case of Dinesh Yadav

Vrs. State of Jharkhand, reported in (2017) 5 SCC 764, wherein, at

paragraph-11, it has been held as under:-

"11. Injury 1 (grievous injury) corresponds to the overt act of the appellant. Since the evidence of eyewitnesses coupled with the evidence of the doctor proves the case of the prosecution against the appellant and as nothing was brought out in the cross-examination of these witnesses so as to discard their evidence, the trial court as well as the High Court are justified in relying upon the evidence of these witnesses for coming to the conclusion. Since the evidence of these witnesses has remained unimpeached, and as there are no major contradictions or omissions in the evidence of these witnesses, the non-examination of the investigating officer by the prosecution may not tilt the balance in favour of the defence. It has not been shown what prejudice has been caused to the appellant by such non- examination. Similar view is taken by this Court as back as in the year 2000 in Bahadur Naik v. State of Bihar [Bahadur Naik v. State of Bihar, (2000) 9 SCC 153 : 2000 SCC (Cri) 1186 : AIR 2000 SC 1582] wherein it is observed thus: (SCC pp. 154-55, para 2)

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"2. The appellant has not been able to shake the credibility of the eyewitnesses. No material contradiction in the case of the prosecution has been shown to us. Under these facts and circumstances, the non-examination of the investigating officer as a witness is of no consequence. It has not been shown what prejudice has been caused to the appellant by such non-examination."

As mentioned supra, the injured had expired prior to commencement of the trial of sessions case. Hence, he could not be examined."

It is, thus, evident from the aforesaid legal position that non-

examination of the Investigating Officer is not always fatal to the

prosecution, rather, it depends upon the facts of each and every case

and non-examination of the Investigating Officer can be said to be fatal

if there is no ocular testimony and there is no circumstance leading to

the death.

21. Here in the facts of the given case, the learned trial Court has

found sufficient material on the basis of circumstance showing the

culpability of the appellant and this Court on the basis of the provision

of Section 106 of the Evidence Act, wherein, it is the initial burden

upon the prosecution to prima facie establish the guilt but onus will

shift upon the inmates to explain the circumstances leading to the

death. But there is no such explanation and even there is no missing

report given by the appellant showing his bona fide.

It is also evident from the testimony of the Doctor that although,

the viscera report has not been received showing the cause of death but

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it would be evident from his testimony that the tongue had been found

to be protruded.

22. This Court has considered the fact about protruding of tongue

i.e., as to on which circumstance the same can be caused by taking into

consideration of the Modi, A textbook of Medical Jurisprudence and

Toxicology, the relevant portion of which is quoted as under:

"(b).Appearance due to asphyxia: The face may be pale

or suffused. The eyes are open, the eyeballs are

prominent, and the conjunctivae are congested and

sometimes there are petechial hemorrhages. The lips

are livid, and the tongue sometimes are protruded.

Bloddy froth comes out of the mouth and the nostrils.

The skin shows punctiform ecchymoses with lividity

of the limbs. Rupture of the tympanum may occur

from a violent effort at respiration."

23. This Court, therefore, is of the view that the tongue which has

been found to be protruded also suggestive of the fact that the homicide

is there.

24. This Court on the basis of the aforesaid discussion and after

taking into consideration the finding recorded by the learned trial Court

as under paragraph-11, is of the view that the learned trial Court after

taking into consideration the testimony of P.W.1 Haray Krishna

Mahato, P.W.2 Niro Mahatain, P.W.5 Radha Krishna Mahato, P.W.6

Hargovind Mahato and P.W.11 Dr. Tulsi Mahato has come to the

conclusive finding by taking the circumstance in to consideration,

wherein, the chain is being completed about commission of murder

which is evident from the conduct of the appellant itself and he, even

though, knowing about missing of his wife but has taken no pain to

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give missing report, rather, he has informed to his in-laws house after

lapse of five days and when the parents of the deceased started

searching the deceased, then the dead body was found in the paddy

field of one Pancha Nand Singh Munda and all these conducts have

been considered by the learned trial Court having the circumstance to

prove the culpability of the appellant, which according to our

considered view suffers from no error, therefore, the instant appeal

deserves to be dismissed.

25. This Court, after having passed the order as aforesaid has

considered the sentence and found therefrom that the order of sentence

to undergo rigorous imprisonment for the offence committed under

Section 302 read with Section 34 of the Indian Penal Code suffers from

infirmity, reason being that Section 302 provides that along with the

sentence of rigorous imprisonment, the fine is also mandatory to be

inflicted as would appear from Section 302 of the Indian Penal Code,

which reads as under:-

"302. Punishment for murder.-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine."

26. The trial Court while imposing the sentence has not considered

the mandatory provision as contained under Section 302 of the Indian

Penal Code and passed the order of sentence without inflicting any

fine, therefore, the order of sentence is modified to the extent that apart

from the sentence to undergo rigorous imprisonment for life, a fine of

Rs.10,000/- (Rupees Ten Thousand) to the appellant, is hereby

imposed.

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27. With the aforesaid modification in the order of sentence, the

instant appeal stands dismissed.

28. Consequent upon dismissal of the appeal preferred by the

appellant, since the appellant who is enjoying suspension of sentence

after the order being passed by this Court directed to release him during

pendency of the appeal, his bail bond is cancelled and he is directed to

surrender before the learned trial Court who would send him jail to

serve out the remaining sentence.

29. Needless to say that if the appellant will not surrender, the trial

Court will take endeavours for securing custody to serve out the

remaining sentence and further secure that appellant will deposit the

amount of fine so imposed by this Court.

30. Let the Lower Court Records be sent back to the Court

concerned forthwith, along with the copy of this Judgment.

(Sujit Narayan Prasad, J.) I agree (Subhash Chand, J.)

(Subhash Chand, J.)

Jharkhand High Court, Ranchi Dated, the 1st February, 2023.

Rohit/-A.F.R.