Jharkhand High Court
Abhiram Mandal Son Of Bechan Mandal vs The State Of Jharkhand on 28 October, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Criminal Appeal (D.B.) No. 472 of 2001
[Arising out of judgment of conviction dated 05.01.2001 and order of
sentence dated 09.02.2001 passed by learned Additional Sessions Judge,
Sahibganj, Camp Court, Rajmahal in Sessions Case No. 196 of 1995]
Abhiram Mandal son of Bechan Mandal, resident of Chandipur, P.S.
Rajmahal, District Sahibganj .... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellant : Mr. Prem Pujari Roy, Advocate
For the State : Ms. Lily Sahay, A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
Reserved on: 22.10.2024 Pronounced On: 28.10.2024
Per Gautam Kumar Choudhary, J. Sole appellant is before this Court against the
judgment of conviction and sentence under Section 302 of the IPC.
2. Informant is the father of the deceased, who was married to the
appellant in 1985. As per FIR after four years of the marriage, her father-in-
law (Bechan Mandal) had made improper sexual advance towards her on
several occasions. This was complained by her to relative Nitai Mandal, who
chastised the appellant as well as his father regarding this conduct. Since then,
the appellant and other in-laws used to subject her cruelty and when the
informant wanted Bidai of his daughter, it was refused by them. In April,
1992, with the help of police, she was brought back to parental home and after
some time, she returned to her matrimonial home. It is alleged that there was
no thaw in relationship and the harassment continued. Deceased was again
ousted from the matrimonial home and then she started living with the
appellant separately at village- Kanhaiyasthan. The harassment and assault
continued there also. On 14.03.1994, appellant killed her with a sharp cutting
weapon.
3. On the basis of the fardbeyan, Rajmahal P.S. Case No.48/94 was
registered under Sections 302/120B of the IPC against appellant and other in-
laws. Police on investigation submitted charge sheet under Sections 302/120B
and 109 of the IPC against Bechan Mandal and Abhiram Mandal, who were
put on trial for the offence under Sections 302/120B of the IPC. Learned trial
Court acquitted Bechan Mandal and convicted present appellant against which
appeal has been preferred.
4. It is argued by the learned counsel on behalf of the appellant that there
are vital contradictions in the testimony of witnesses which has not been
considered by the learned trial Court. The Investigating officer has also not
been examined. P.W. 1, P.W. 3, P.W. 4 and P.W. 7, are hostile witnesses, P.W. 2
and P.W. 5 have admitted that they were not eye witnesses to the incidence.
Judgment of conviction has been passed only on the basis of statement of the
close relatives of the deceased.
5. Learned A.P.P. has defended the judgment of conviction and sentence. It
is argued that trite law of appreciation of evidence is that it is not the number,
but the credibility of witnesses that counts. Prosecution case is established by
the eye witnesses account of P.W. 9, P.W. 10 and P.W. 11.
6. Deceased died a homicidal death, is not disputed and has been proved
by the Autopsy Surgeon (P.W. 6), who found the following injuries on the
body of the deceased: -
I. Cut throat injury below thyroid cartilage.
II. Sharp incised wound over web of the hand between thumb and index
finger measuring 3" x 1"x 1/2"
III. Incised wound over right side of the cheek 3" x 1/2" x 1/2"
IV. Incised wound on the left middle finger 1/2" x 1/2" x 1/4".
Doctor opined that the death was caused by cardio-respiratory failure
due to injury no. I.
7. P.W. 9- Fugni has deposed that it was about 12 O' clock in the day time,
she was taking her meal when the appellant came to her house with his 1½
year old son. There were blood-stain marks on his clothes and also on the
child. Appellant handed over his child to her and stated that he had committed
murder of his wife with Cheawni thereafter, fled away. When she rushed to the
house of the appellant, she found wife of the appellant to be dead and her neck
was slit. She saw a rod and blood-stained Cheawni lying there. In para 10-14,
she has given the description of the boundary of her house.
P.W. 10 has deposed that he had seen the appellant coming on the road
with blood-stain marks on his wearing apparels at a distance of 100 yard from
his house. When he asked as to how he had got the blood-stains over his
clothes, he stated that he has committed murder of his wife. Testimony of P.W.
11 and P.W. 12 was also on the same line.
8. Statement made by the appellant to these witnesses will not only be
relevant and come within the meaning of extra judicial confession, but also
since it had been made immediately after the incidence, being part of the same
transaction, shall be relevant under Section 6 of the Evidence Act. These
witnesses also saw the appellant coming from his house where he had killed
his wife with blood stain marks. Section 6 reads as under,
Relevancy of facts forming part of same transaction.--Facts which, though
not in issue, are so connected with a fact in issue as to form part of the same
transaction, are relevant, whether they occurred at the same time and place or at
different times and places.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done
by A or B or the by-standers at the beating, or so shortly before or after it as to
form part of the transaction, is a relevant fact.
Section 6 is an exception to the rule that hearsay evidence is not
admissible. It has been held in Sukhar v. State of U.P., (1999) 9 SCC 507
"6. Section 6 of the Evidence Act is an exception to the general rule whereunder
the hearsay evidence becomes admissible. But for bringing such hearsay
evidence within the provisions of Section 6, what is required to be established is
that it must be almost contemporaneous with the acts and there should not be
an interval which would allow fabrication. The statements sought to be
admitted, therefore, as forming part of res gestae, must have been made
contemporaneously with the acts or immediately thereafter. The aforesaid rule
as it is stated in Wigmore's Evidence Act reads thus:
"Under the present exception [to hearsay] and utterance is by hypothesis,
offered as an assertion to evidence the fact asserted (for example that a
car brake was set or not set), and the only condition is that it shall have
been made spontaneously, i.e. as the natural effusion of a state of
excitement. Now this state of excitement may well continue to exist after
the exciting fact has ended. The declaration, therefore, may be admissible
even though subsequent to the occurrence, provided it is near enough in
time to allow the assumption that the exciting influence continued."
Javed Alam Vs State of Chattisgarh, (2009) 6 SCC 450 that the test
for applying the rule of res gestae is that the statement should be spontaneous
and should form part of the same transaction ruling out any possibility of
concoction.
From the above exposition of law, it will be manifestly clear that
testimony of P.Ws. 9 - 12 will be relevant under Section 6 of the Evidence
Act.
9. Further, Extra Judicial Confession is normally considered as a weak
piece of evidence. But in the present case, since the statement has been made
contemporaneously soon after the incidence and the three witnesses have
testified regarding it, it can be the basis of conviction. It has been held in
Pakkirisamy Vs. State of Tamil Nadu, (1997) 8 SCC 158 that when the extra
judicial confession is corroborated by the other circumstance, it can be relied
upon. Learned trial Court has rightly noted that the witnesses were
independent and there is no reason to disbelieve their account.
10. This is a case where the deceased is the wife and was murdered in her
house and the appellant has not offered any explanation regarding her
homicidal death under Section 106 of the Evidence Act, so as to cast doubt on
the prosecution that it was not the appellant, but someone else who had
committed the offence.
I do not find any ground to interfere in the judgment of conviction and
sentence.
Criminal Appeal stands dismissed.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned along
with a copy of this judgment.
(Gautam Kumar Choudhary, J.)
Ananda Sen, J. I agree
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated 28th October, 2024
AFR/Anit
