Jharkhand High Court
Khabo Besra Son Of Late Gopin Besra vs The State Of Jharkhand on 21 October, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 1307 of 2016
Against the Judgment of conviction dated 10.03.2016 and order of
sentence dated 14.03.2016 passed by the learned Addl. Sessions
Judge-I, Jamtara in Sessions Trial No. 19 of 2010.
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Khabo Besra son of late Gopin Besra, resident of village- Jarbahinga,
P.O. And P.S.- Kundahit, District- Jamtara, Jharkhand.
............APPELLANT
Versus
The State of Jharkhand .........RESPONDENT
......
For the Appellant : Mrs. Chaitali C. Sinha, Advocate. .
For the State : Mr. Rajneesh Vardhan, A.P.P.
......
PRESENT
SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
JUDGMENT
05/Dated: 21.10.2024
By Court.
Learned counsel Mrs. Chaitali C. Sinha appearing on behalf of
the appellant submits that this appeal has been filed by her when she
was in the panel of Jharkhand High Court Legal Services Committee
(JHCLSC). She submits that she received a letter to hand over all the
papers and documents to the Jharkhand High Court Legal Services
Committee, as now she is not in the panel of JHCLSC.
Considering the above submission we have gone through the
record and we could not find that any lawyer has been appointed by
Jharkhand High Court Legal Services Committee to pursue this case.
Further the appeal has been listed today for final hearing and parties
are ready for hearing. Thus in spite of letter written by High Court Legal
Services Committee, we request Mrs. Chaitali C. Sinha to assist this
Court, as she submits that she is ready to assist this Court and she has
got all the papers and documents of this appeal and she is ready with
the facts of this case. Thus we have heard Mrs. Chaitali C. Sinha.
2. This criminal appeal is directed against the Judgment of
conviction dated 10.03.2016 and order of sentence dated 14.03.2016
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passed by the learned Addl. Sessions Judge-I, Jamtara in Sessions
Trial No. 19 of 2010, whereby and where under, the appellant having
been found guilty of charge under Section 302 of Indian Penal Code
and has been convicted under Section 302 of the IPC and sentenced to
undergo rigorous imprisonment for life and fine of Rs.2,000/-.
3. The learned counsel for the appellant submits that the
appellant has been made an accused in this case only on the basis of
suspicion. He further submits that there is no eye witness in this case.
The learned counsel for the appellants submits that there was an illicit
relation between the deceased and Rasmuni but Rasmuni has not been
examined in this case nor she has been made a witness in this case,
which itself demolishes the case of prosecution. On the aforesaid
grounds, learned counsel for the appellant lastly contends that this
appellant may be acquitted in this case.
4. The learned Counsel for the State opposing the prayer of the
appellant submits that most of the witnesses i.e. P.Ws.-1,2,3 & 6 have
disclosed the circumstances and reason behind the occurrence and
there is consistency in their statement. He further contended that from
the evidence of P.W-7, it is clear that it is he who lastly saw the
deceased entering in the house of the appellant. He also contends that
there was an illicit relation between the deceased and Rasmuni and the
appellant always used to threaten the deceased of dire consequences
which suggests that there is a strong motive to commit the murder of
the deceased. Appellant is none but the brother of Rasmuni. On the
aforesaid grounds, he submits that the impugned judgment of conviction
and order of sentence passed by the learned court is justified and
should not be interfered with.
5. The FIR is at the instance of the father of the deceased. He
stated that his son (deceased) along with his wife went to his in-laws
house and dropped his wife and returned. In the evening, he left his house
saying that he is going to the house of one Rasmuni. He did not return at
night and on the next day, the body of the deceased was found in jungle.
It has been further mentioned that the brother of Rasmuni (appellant) used
to threaten the deceased as it was suspected that deceased had some
illicit relation with Rasmuni.
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On the basis of aforesaid fardbeyan, Kundahit P.S. Case No. 42
of 2009 under sections 302/34 of the Indian Penal Code was registered.
After investigation, charge-sheet was submitted against this appellant
for committing the offence under section 302/34 IPC and accordingly,
the cognizance was taken and the case was committed to the Court of
Sessions where charger was framed and trial proceeded.
6. In order to prove the charges against the accused, the
prosecution had examined altogether 16 witnesses, who are as follows:-
PW-1: Parwati Marandi,
PW-2: Gudum Soren (informant),
PW-3: Shivdhan Soren,
PW-4: Mangli Besra,
PW-5: Rameshwar Hembram,
PW-6 Vishwanath Hembram,
PW-7 Sarweshwar Hembram,
PW-8 Lagen Tudu,
PW-9 Dr. Manjula Murmu,
PW-10 Satyanarayan Hansda,
PW-11 Babudhan Murmu,
PW-12 Saroj Kumar Singh(I.O),
PW-13 Babu Singh Murmu,
PW-14 Jalim Hembram,
PW-15 Nirmal Kisku, and
PW-16 Dr. Vishwanath Choudhary
7. Several documents have also been exhibited in this case,
which are as follows:-
Ext.1 Signature of the informant in fardbeyan.
Ext.1/1 Signature of PW-6 on fardbeyan.
Ext.1/2 Signature of PW-8 on fardbeyan.
Ext.1/3 Signature of PW-8 on inquest report.
Ext.2 Signature of Dr. Vishwanath Choudhary on
Postmortem report.
Ext.3 Fardbeyan.
Ext.3/1 Endorsement on fardbeyan.
Ext.4 Signature of Chandradeo Ram on F.I.R.
Ext.5 Inquest Report.
Ext.6 P.M. Report.
8. After closure of evidences, the statement of the appellant under
Section 313 Cr.P.C was recorded, in which he has pleaded innocence.
Appellant did not adduce any evidence in defence.
9. The Trial Court after going through the materials on record and
also considering the evidence of the prosecution witnesses has found the
charge levelled against the appellant to be proved and, thereafter,
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convicted and sentenced him as aforesaid.
10. After considering the evidence and upon hearing the parties,
we find that the doctor who had conducted the post-mortem
examination is P.W-16. He stated that ligature mark of black colour is
situated horizontally of size10''x2'' on left side of the neck and ligature
mark is situated lower down in the neck below the thyroid cartilage. As
per him, the cause of death is asphyxia, as a result of strangulation. He
has proved the postmortem report and put his signature, which has
been marked as Ext-6. In cross-examination, he submitted that the
same may be caused by suicide. PW-9 is the doctor Manjula Murmu
who stated that the postmortem report has been prepared by Dr.
Vishwanath Choudhary and his signature has been marked as
Exhibit-2. Thus from the evidence, we find that there is no concrete
opinion as to whether the death is homicidal or suicidal. Both is possible.
11. In this case the F.IR. is based on the suspicion of the
informant (PW-2). He as a witness has reiterated his statement what he
has made in the fardbeyan. He stated that the deceased, who is his son
went to his in-laws' house along with his wife. After he returned, he
went to the house of this appellant but did not returned. He stated that
there was some affair with Rasmuni and the deceased and the brother
of Rasmuni, used to threaten the deceased of the dire consequences.
12. P.W.1 is the wife of the deceased. She stated that the deceased
along with her went to her parents' house. PW-1 was dropped in the
house of her parents and the deceased returned. In the mid-way, the
deceased received a call from Rasmuni, who insisted him to remain
present with her. She stated that there was illicit relationship between
Rasmuni and the deceased. She tried to reason with the deceased, but
all went in vain. She stated that Rasmuni used to threaten that her
husband would be implicated in a false case, if he does not spend time
with her. She further stated that she could come to know that on the
next day, the body of the deceased was found in the jungle.
13. Thus from the evidence of P.W-1 and P.W-2, it is clear that
only material is that as per P.W-1 is that the deceased went to the
house of Rasmuni and as per PW-2, the deceased went to the house of
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this appellant. This statement is based on the submission of the
deceased when he was leaving his house.
14. P.W-7 is Sarweshwar Hembram who stated that he is not
aware with the facts of this case but he had seen the deceased entering
the house of Rasmuni in the evening. The body of the deceased was
found on the next day. In cross-examination there is nothing to
disbelieve this witness. From analyzing the evidence of this witness, the
only conclusion which can be reached is that the deceased entered the
house of Rasmuni. There is nothing on record or in evidence to suggest
that as to whether this appellant was present in the house of Rasmuni
or not at that relevant point or during the entire period when the
deceased was there.
15. P.Ws. 4 and 5 have turned hostile. PW-6 only heard that the
dead body of the deceased was found in the jungle. The Investing
Officer is P.W-12 who proved the formal FIR and the fardbeyan. He
recorded the confessional statement of this appellant wherein the
appellant has confessed his guilt and also implicated one Mangal
Baskey in this crime, who is already dead. From his evidence , we could
gather that there is no recovery or any disclosure on the part of this
appellant, save and except his confessional statement, accepting his
guilt. This statement cannot be considered as legal evidence.
16. The inquest report has been marked as Exhibit-5 by this
witness. In column No.3 which is in relation to place, time and date the
body has been recovered, there is no entry made therein.
17. From the FIR and the evidence of P.W-1 and others, we find
that it is the case of the prosecution that the body was found in jungle.
As per the statement of PW-7 he stated that he saw the appellant
entering the house of Rasmuni but how the body was found in Jungle,
has not been stated by any of the prosecution witness. Admittedly, there
is no eye-witness to the said occurrence. Thus, it is quite clear from the
evidence that no one has seen this appellant either in the company of
the deceased or in the house of Rasmuni, when the deceased visited
the house of Rasmuni. Rasmuni is not an accused in this case, nor she
has been examined as witness. Only on the basis of suspicion, based
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on a threat perception, this appellant has been made an accused in this
case.
18. Thus, we are inclined to acquit this appellant. Accordingly, the
Judgment of conviction dated 10.03.2016 and order of sentence dated
14.03.2016 passed by the learned Addl. Sessions Judge-I, Jamtara in
Sessions Trial No. 19 of 2010 is set aside.
19. This Court directs the above named appellant to be released
forthwith from custody, if not required in any other case. Accordingly,
this Criminal Appeal is allowed.
20. Let the Trial Court Records be sent back to the Court
concerned forthwith, along with a copy of this judgment.
21. Pending Interlocutory application, if any, is also disposed of.
22. Considering the able assistance of the Amicus, we direct the
Jharkhand High Court Legal Services Committee to pay Rs.7,500/-
(rupees seven thousand five hundred) to the learned counsel Mrs.
Chaitali C. Sinha, as her remuneration.
(ANANDA SEN, J.)
(GAUTAM KUMAR CHOUDHARY, J.)
Jharkhand High Court, Ranchi.
Dated: the 20th August, 2024.
NAFR/Anu-Abha/Cp.-3.
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