Parwati Gagrai vs The State Of Jharkhand
2023 Latest Caselaw 1942 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Criminal Appellate Jurisdiction)
                Acquittal Appeal No. 25 of 2020
                             -------
Parwati Gagrai, w/o Akhim Gagrai, r/o village-Kushnopur, PO-
Landupada, PS-Karaikela, District-West Singhbhum.
                                                  ... Appellant
                            Versus
1. The State of Jharkhand
2. Durga Charan Korah, s/o Sukra Korha, r/o village-Kushnopur,
PO-Landupada, PS-Karaikela, District-West Singhbhum
                                                ... Respondents


CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant         : Mr. Amit Kumar, Advocate
                            Mr. Rabindra Prasad, Advocate
For the State             : Mr. Ravi Prakash, Spl. PP

                                   --------
                                                         ORDER

th 5 May 2023

Per, Shree Chandrashekhar, J.

Parwati Gagrai who is the informant of Karaikela PS Case No. 17 of 2017 has challenged the judgment in Sessions Trial No. 206 of 2018 passed by Additional Sessions Judge-II, West Singhbhum at Chaibasa by which Durga Charan Korah has been acquitted of the charge of committing murder of Hakim Gagrai.

2. On the basis of the fardbeyan of Parwati Gagrai which was recorded by the officer-in-charge of Karaikela Police Station, Karaikela PS Case No. 17 of 2017 was lodged on 31 st August 2017 under section 302 of the Indian Penal Code. However, after the investigation, a charge-sheet was laid against Durga Charan Korah.

3. During the trial, the prosecution has examined 8 witnesses to support the charge under sections 302/34 and 201 of the Indian Penal Code (in short, IPC) framed against the accused. However, the prosecution could not produce any witness who could have informed the Court how Hakim Gagrai was done to death. PW1 and PW2 are the inquest witness; PW3 who is the 2 Acquittal Appeal No. 25 of 2020

father, PW4 who is the mother and PW6 who is the wife of Hakim Gagrai have raised a suspicion against Durga Charan Korah that he has committed his murder.

4. As PW5, Dr. Vibhakar Kumar tendered evidence in the Court that a dead body contained in a bag trunk was produced before him. He has observed peeling of skin, the body was decomposed and maggots were crawling over the dead body. He has observed as under:

"There is presence of oblique chop wound over lower most part of neck involving C-7-T-1 vertebrae. The margin are abrade with features of antemortem wound. Both upper limb amputated from shoulder and missing. Both lower limb missing from upper most part of thigh. In other bag right thigh found with absence of distal portion of limb from knee. Margin of all wound are clean cut without features of antemortem wound. Internal organs found starts putrefying. A portion of body of sternum preserved for DNA finger printing.

Opinion- (i) above noted wound of neck is antemortem in nature and other wounds are postmortem in nature. Caused by moderately sharp cutting heavy weight weapon.

(ii) Death was due to hemorrhagic shock.

(iii) Time since death- 3 to 5 days from the time of postmortem examination."

5. The trial Judge has appreciated the evidence of the prosecution witnesses in the light of the medical evidence in the following manner :

"18. ...the evidence of doctor P.W.5 as well as postmortem report (Ext.3) reveals that it is a case of homicidal death. The evidence of prosecution witnesses reveals that the case in hand there was no eye witness and the case is based on circumstantial evidence. Now, I shall consider the evidence of P.W.6 Parwati Gagrai, who is the wife of the deceased. She has stated that her husband left the house along with Durga Charan Korah on 30.08.2017 at about 7.30- 8:00 O' Clock but he did not come back home. Therefore, she fell as asleep after waiting sometime. At that time, her mother-in-law, brother-in-law and daughter were present in the house. On next day, she along with others searched her husband. During the course of search, a leg of her husband found near the river. His dead-body was sacked. She and her family members identified beheaded body as her husband. In her cross-examination, she has stated that the occurrence of murder of Hakim Gagrai was not witnessed by her. She did not know who killed her husband and how. On appreciation of the evidence of this witness, it reveals that informant's husband left the house along with accused Durga Charan Korah and he did not return back house and on the next day, a beheaded body was recovered beside the bank of Vijay river. However, the prosecution story reveals that deceased left the house on 30.08.2017 at about 8.00 a.m. Along with accused Durga Charan but he returned on same day at about 3.00 p.m. from there. Thereafter, deceased went out his house twice and lastly at about 8.00 p.m in the night when he left the house no other was along with him. If the deceased left the house at last time in the night along with accused then what prevented the informant P.W.6 Parwati Gagrai to disclose this fact 3 Acquittal Appeal No. 25 of 2020

before the police in her fardbeyan. Para 7 of the P.W.7 investigating officer Shambhu Singh also reveals that neither the informant P.W.6 nor P.W.2 Basant Gagrai disclosed anything about the occurrence in their statement before him. Thus, it is an improvement that deceased left the house along with accused Durga Charan Korah and did not return house and on the next day his dead body was found. Thus, reliance can't placed on the evidence of P.W.6 infomrant and P.W.2 Basant Gagrai that deceased left the house along with accused Durga Charan Korah and he did not come back in the night and on the next day, his dead-body recovered. However, P.W.2 Basant Gagrai (brother of the deceased), P.W.3 Behra Gagrai (father of the deceased), P.W.4 Lalita Gagrai (mother of the deceased) have stated in their evidence that Durga Charan Korah, Shyam Kora and Sadhuram Kora had committed the murder of deceased Hakim Gagrai but their cross-examination revealed (Ext.6) that no one is the eye witness of the occurrence. The confessional statement of co- accused Shyam Kora reveals that he along with Durga Charan Korah and others have committed the murder of deceased but it is not admissible under law because section 25 of the Evidence Act hits it. However, on the basis of confessional statement (Ext.6) of the co-accused Shyam Kora the Aadhar Card and Voter card of the deceased Hakim Gagrai recovered from his pocket but it does not appear just, natural, reasonable and believable that a person who participated in the murder of someone and after committing the murder he would keep voter card and Aadhar card of deceased in his pocket till more than 8 months of the occurrence. Thus, it is not safe to place reliance that on the basis of confessional statement of the co-accused Shyam Kora Aadhar Card and Voter Card of the deceased recovered from his pocket.

From the above discussion, this Court comes to conclusion that neither there is direct evidence nor circumstantial evidence on record to prove beyond reasonable doubts that accused Durga Charan Korah had participated in committing the murder of the Hakim Gagrai and to screen himself and other co-accused cut the dead-bodies into the pieces and threw under bushes kept in a sack at the bank of Vijay river. Therefore, accused Durga Charan Korah is hereby acquitted of the charges levelled against him under sections 302 & 201/34 of the I.P.C. He is on bail. He is discharged from the liabilities of bail bond."

6. The case of the prosecution is that the husband of Parvati Gagrai proceeded for Chakradharpur market on 30 th August 2017 at about 8:00 AM. At that time, Durga Charan Korah was also accompanying him. According to the informant, her husband came back home at 3:00 PM and again went out of the house when she was cooking dinner. In the night her husband did not come back home but she did not make inquiry in this regard because some times her husband used to stay outside for playing cards. The next morning, she tried to make contact with her husband over the mobile phone but it was found switched off. On a second attempt by Dilip Bodra who is a co-villagers the mobile phone of her husband rang but no one responded. The informant 4 Acquittal Appeal No. 25 of 2020

and other co-villagers therefore started search for her husband and at about 1/2 kilometer from the village they found some blood spot and sliced penis. On moving further ahead they found a severe thigh and beheaded body in a gunny bag. According to the informant her husband was murdered by some unknown miscreants.

7. PW1 Lakhan Melgandi is the inquest witness who did not support the prosecution in the Court and was declared hostile. PW2 Basant Gagrai is the brother-in-law of the informant who has deposed in the Court that he saw Durga Charan Korah accompanying Hakim Gagrai on 31st August 2017. PW3 Behra Gagrai is the father of Hakim Gagrai and PW4 Lalita Gargai is the mother of Hakim Gagrai. These witnesses are also not eyewitness and their presence in the trial was only to the extent of identification of the deceased.

8. In her evidence the informant has stated that murder of her husband was committed by Durga Charan Korah, Shyam Korah and Sadhu Charan Korah. During cross-examination, she has admitted that she does not know how and who committed murder of her husband. She has further stated that the police did not record her statement correctly. Similarly, the evidence of both the Investigating Officers does not provide any support to the case of the prosecution except that PW8 has recorded confessional statement of Shyam Korah and collected criminal antecedent of Durga Charan Korah who was found involved in Saraikella PS No.38 of 2014. From the records, it appears that the investigation against Shyam Korah and Sadhu Charan Kora has remained pending.

9. Mr. Amit Kumar, the learned counsel for the appellant would contend that co-accused Shyam Kora suffered a confessional disclosure before the investigating officer about his involvement along with Durga Charan Korah and Aadhaar Card and ID proof of Hakim Gagrai were recovered from his pocket. On the basis of the aforesaid evidence, the learned counsel for the appellant would 5 Acquittal Appeal No. 25 of 2020

contend that there is clinching evidence against Durga Charan Korah to infer that he is the person who has committed murder of Hakim Gagrai.

10. In a criminal trial confession of an accused is not altogether inadmissible in evidence. However, there are certain statutory prohibitions contained under sections 25 and 26 of the Indian Evidence Act which provide that no confession made by an accused while in custody of a police officer shall be proved against the accused, except which is made in the immediate presence of a Magistrate. Section 27 of the Indian Evidence Act carves out an exception to the general laws under sections 25 and 26 to the extent that confession of an accused can be proved by the prosecution when it distinctly relates to discovery of a fact. Therefore wherever a crime weapon or any incriminating materials is recovered by the police pursuant to the information disclosed by him, that part of the confession of the accused shall be provable by the prosecution.

11. The plea raised on behalf of the appellant that pursuant to the disclosure suffered by co-accused Shyam Kora Aadhaar Card and Voter ID Card belonging to Hakim Gagrai were recovered and, therefore, an inference must be raised against the respondent no.2 on his complicity in the crime cannot be accepted. In the first place, personal search of the accused shall not fall within the ambit of section 27 of the Indian Evidence Act. The discovery of an incriminating material pursuant to disclosure of the accused must be from a place which was not known to the police and is not accessible to general public and the knowledge about which must be supplied to the police only through the accused. Secondly, on seizure of Aadhaar Card and Voter ID Card belonging to Hakim Gagrai from the co-accused an inference on culpability of the respondent no.2 cannot be raised.

12. May be seizure of these articles is a suspicious circumstance but then suspicion howsoever strong cannot take the place of legal proof. In "Sharad Birdhichand Sarda v. State of 6 Acquittal Appeal No. 25 of 2020

Maharashtra" (1984) 4 SCC 116, the Hon'ble Supreme Court has held as under:

"179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law."

13. In a case based on circumstantial evidence the circumstances on the basis of which the conclusion of guilt is to be drawn must be fully established, of a conclusive nature and must exclude all possible hypothesis except the one which must unerringly establish that it was the accused who has committed the crime.

14. In "Hanumant Govind Nargundkar v. State of M.P." AIR 1952 SC 343 it was observed thus:

"10....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...."

15. In our opinion, the trial Judge has rightly acquitted Durga Charan Korah against whom no incriminating circumstance has been established by the prosecution.

16. Though the Code of Criminal Procedure does not provide any limitation on the powers of the High Court acting as an appellate Court to interfere with the judgment of acquittal, there are well-settled circumstances only under which the appellate Court should interfere with the judgment of acquittal.

17. In "Bhadragiri Venkata Ravi v. High Court of A.P." (2013) 14 SCC 145 the Hon'ble Supreme Court has held as under:

"25. This Court has time and again laid down parameters for interference by a superior court against the order of acquittal. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his 7 Acquittal Appeal No. 25 of 2020

innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

18. While so, Acquittal Appeal No. 25 of 2020 is dismissed.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.)

Amit