Jharkhand High Court
Mahendra Mahto vs State Of Jharkhand on 9 September, 2024
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Criminal Appeal (DB) No. 654 of 2019
[Against the judgment and order of conviction and sentence dated
04.06.2019 (sentence passed on 07.06.2019) passed by Sri Rajeev
Anand, learned Additional Judicial Commissioner-XIII, Ranchi in
Sessions Trial No. 595 of 2015]
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Mahendra Mahto, S/o Shri Tulsi Mahto, R/o Village-Hombai,
P.S. Sadar Mesra O.P., P.O. Mesra, District- Ranchi,
Jharkhand .... .... Appellant
Versus
State of Jharkhand .... .... Respondent
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For the Appellant : Mr. B.M. Tripathy, Sr. Advocate
Ms. Nutan Sharma, Advocate
Mr. Naveen Kr. Jaiswal, Advocate
For the State : Mrs. Nehala Sharmin, Spl. P.P.
For the Informant : Mr. Vijiyant Verma, Advocate
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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C.A.V. on 20/08/2024 Pronounced on 09/09/2024
Per Rongon Mukhopadhyay, J.
Heard Mr. B.M. Tripathy, learned Senior Counsel
for the appellant and Mrs. Nehala Sharmin, learned Spl. P.P. for
the State as well as Mr. Vijiyant Verma, learned counsel appearing
for the informant.
2. This appeal is directed against the judgment and
order of conviction and sentence dated 04.06.2019 (sentence
passed on 07.06.2019) passed by Sri Rajeev Anand, learned
Additional Judicial Commissioner-XIII, Ranchi in Sessions Trial
No. 595 of 2015, whereby and whereunder, the appellant has been
convicted for the offences punishable u/s 302, 201 of the IPC and
has been sentenced to undergo R.I. for life along with a fine of Rs.
50,000/- for the offence u/s 302 of the IPC and in default in
payment of fine to undergo further R.I. for one year and R.I. for
three years for the offence u/s 201 of the IPC along with a fine of
Rs. 25,000/- and in default to undergo further R.I. for six months.
Both the sentences are to run concurrently.
3. The prosecution case arises out of the written
report of Kalicharan Mahto, in which, it has been stated that the
marriage of his sister Sheela Devi was solemnized with Mahendra
Mahto (appellant) about twelve years back and out of the said
wedlock two sons were born. Mahendra Mahto works in the
defence forces and is posted at Manali Sese. The sister of the
informant was employed in the Laboratory/Chemistry Department
in BIT Mesra. It has been alleged that Mahendra Mahto sometimes
used to torture his sister and issued threats to commit her murder.
Mahendra Mahto had occasionally committed assault upon his
sister and about two days prior to the occurrence he had pushed
his sister before a running vehicle but she had a providential
escape. It has been stated that the informant and others used to
pacify the tumultuous relationship between Mahendra Mahto and
his wife. It has been alleged that Mahendra Mahto pressurized the
family of the informant for a piece of land for construction of a
house and about two years back five decimals of land was
registered in the name of the sister of the informant. Mahendra
Mahto started construction of his house over the said piece of land
and demanded Rs. 2,00,000/- from the parents of the informant. It
has been stated that the sister of the informant had invested in
insurance policy to the tune of Rs. 20,00,000/- and a few days
prior to the occurrence Mahendra Mahto had taken an insurance
policy of Rs. 10,00,000/- in the name of his wife and in all the
insurance policies Mahendra Mahto was the nominee. It has been
alleged that on 03.07.2015 his sister dropped Mahendra Mahto at
the Railway Station at 03:00 P.M. for boarding Jammu Tawi
Express as he was to join his duty at his place of posting. The
sister of the informant returned back to her house and in the
morning it came to light that his sister was not at home and an
intense search was conducted but she could not be traced out. It
has been alleged that in the Pooja room in a large box the hair of
his sister could be seen and on breaking open the lock of the box
the dead body of his sister having marks of violence in her body
was found. There was cut injury on the private parts of the sister of
the informant also. In the meantime, a crowd had assembled. It
has been alleged that Mahendra Mahto was tried to be contacted
on his mobile but it was switched off. It has further been alleged
that since the demand of Rs. 2,00,000/- was not fulfilled and in
order to claim the money on account of the insurance policy in
which he was the nominee Mahendra Mahto along with his
unknown associates had returned back from Ranchi Railway
Station and by committing the murder of his wife, concealed the
dead body in a box.
Based on the aforesaid allegations Sadar (Mesra)
P.S. Case No. 332/2015 was instituted u/s 302/201/34 of the IPC
against Mahendra Mahto and unknown persons. On completion of
investigation charge-sheet was submitted against Mahendra Mahto
and after cognizance was taken the case was committed to the
Court of Sessions where it was registered as Sessions Trial No.
595/2015. Charge was framed against the accused for the offence
u/s 302/201 of the IPC which was read over and explained to the
accused in Hindi to which he pleaded not guilty and claimed to be
tried.
4. The prosecution has examined as many as twelve
witnesses in support of its case.
5. P.W.1 (Vijay Mahto) has stated that the incident is
of 03.07.2015 and he was in the field sprinkling seeds when his
uncle came and disclosed that Sheela has become untraceable and
he requested him to go to the house of Sheela. He thereafter went
to the house of Sheela on his motorcycle along with his uncle.
When he reached her house at village Hombai a large crowd had
already gathered who were making efforts to search out Sheela.
The sister-in-law of Sheela, Kaso Devi and maternal uncle Mansha
Mahto were searching inside the house. At that point of time the
dead body of Sheela was recovered from inside a box with cut
injuries on her person. The Police had come after which he had left
for his house.
In cross-examination, he has deposed that the
accused is his nephew in relation. The marriage of Sheela Devi was
solemnized with the elder brother of the accused but on account of
his sudden death Sheela Devi was got married to the accused.
Before he had reached the house of Sheela Devi the Mukhiya as
well as Alim Ansari, Mansha Mahto, Kaso Devi, the sister of the
deceased and others were already present. He has deposed that
Mansha Mahto and Kaso Devi came out screaming that the dead
body was inside the box.
6. P.W.2 (Asha Kumari) is the sister of Sheela Devi
who has stated that the marriage of Sheela Devi was solemnized
with Mahendra Mahto in the year 2004. After the marriage her
sister was physically and mentally tortured by Mahendra Mahto.
Whenever he used to come home on leave after taking liquor he
used to assault her sister. Mahendra Mahto always demanded
money from his in-laws as well as land and never behaved properly
with them. In October, 2014, Mahendra Mahto had taken her and
her sister and the children to Manali and there also he committed
assault and threatened her sister of committing her murder. She
has stated that money as well as land was given to Mahendra
Mahto by his in-laws. He had pushed Sheela Devi in front of a
running vehicle but somehow no harm could come to her. Her
sister used to respect Mahendra Mahto and this prompted her not
to lodge any complaint regarding the said incident. On 03.07.2015,
her sister had dropped Mahendra Mahto at the Railway Station.
Mahendra Mahto had left but he returned back at night when her
sister was alone and after brutally assaulting her put her body
inside a box. Her sister had two children and both stay at their
maternal uncle's place. When the incident had occurred both the
children were with their mother.
In cross-examination, she has deposed that she
had reached the place of occurrence at 07:30 A.M. Prior to her
reaching the father of Mahendra Mahto, his brother Babu Lal
Mahto and Agamlal Mahto had already reached the place of
occurrence. Her mother reached after 10-15 minutes. She has
deposed that after marriage Mahendra Mahto used to come to his
house 3-4 times in a year. After 2008, Mahendra Mahto would
sometime take his wife for outing. After they were taken to Manali
where they resided in the quarter of Mahendra Mahto they were
taken to Shimla where they stayed for a day. In the entire tour she
did not have to spend a single farthing. During her marriage,
Mahendra Mahto had merely completed the formalities. Her sister
Sheela Devi had an insurance policy of Rs. 40,00,000/- and
Mahendra Mahto was designated as the nominee. In the year 2012,
Mahendra Mahto had taken her and her family members to
Vaishno Devi, Jammu, Golden Temple, Jallianwala Bagh and
Wagah Border. The dead body was first detected by her maternal
uncle Mansha Mahto and aunt Radho Devi. After marriage, Sheela
Devi was not kept properly even for a month. She has deposed that
Sheela Devi had an auto-rickshaw which she had given on hire.
7. P.W.3 (Lilawati Kumari) is the sister of the deceased
Sheela Devi who has stated that the marriage of her sister was
solemnized in the year 2001 with Shiv Prasad Mahto and though
the parents' of Shiv Prasad Mahto wanted to solemnize the
marriage of Sheela Devi with Mahendra Mahto but there was no
positive response from his side. However, when her sister started
receiving pension from 2003 and also secured a job at BIT Mesra,
Mahendra Mahto became greedy and agreed to solemnize marriage
with her. After marriage, Sheela Devi was subjected to torture by
Mahendra Mahto and she was also forced to abort her foetus once
or twice. She has stated that Mahendra Mahto took a policy in the
name of Sheela Devi and whatever money she had was withdrawn
by him. He used to demand money and land for constructing a
house. By practising fraud he managed to obtain a land and
started constructing a house. Mahendra Mahto used to torture
Sheela Devi by various means and also used to eve tease the
women of the village. Her sister had disclosed to her on 02.07.2015
that on 01.07.2015 Mahendra Mahto had pushed her in front of a
speeding truck but somehow she was saved. On 03.07.2015, her
sister had taken a leave from office as Mahendra Mahto was to go
back to his working place. Mahendra Mahto was supposed to go to
Manali but he had bought the ticket for Allahabad only. He had
extended his leave thrice in order to execute his plan of committing
the murder of his wife. She has stated that on 03.07.2015 after
duty hours she had gone to her sister's place who disclosed that
she has dropped Mahendra at the Station and returned back. She
thereafter went back to her home and on 04.07.2015 her mother
had called her and informed her that her sister is not at home. At
this, she went to her sister's place on a Scooty along with her
maternal aunt Sago Devi and Sakho Devi. She had a suspicion that
Mahendra had either kidnapped her sister or has caused her
disappearance. An intensive search was conducted and tufts of
hair as well as her hair clip were found near the gate and when a
search was made inside the house it was resisted by Babu Lal
Mahto, the elder brother of Mahendra Mahto. In course of search,
her maternal uncle Mansha Mahto discovered a box which had
some traces of hair and thereafter the dead body of her sister was
located inside the box. The Police on being informed came and took
out the dead body which bore signs of brutality of the murder. On
04.07.2015 at about 6:00-7:00 P.M. the case was lodged. As soon
as the case was instituted Mahendra had called Babu Lal on his
mobile and showed his inability to come back and wanted the
cremation to be done. She has stated that Mahendra had called her
brother Kalicharan Mahto and threatened him over phone. On the
next day Mahendra Mahto was returning when he was
apprehended by the Police. She has identified her signature in the
seizure list of seized blood stained bed sheets which has been
marked as Exhibit-2. She has also identified her signature in the
seizure list of seized bangles, hair clips etc. which has been marked
as Exhibit-3. She has proved her signature in her statement before
the Magistrate which has been marked as Exhibit-4. She has
stated that the house is such that it can be only an insider job as it
is not possible for a stranger to commit such offence. On the fateful
night Sheela Devi was sleeping with her children and she would
not have opened the door for anyone other than her husband
which further enhances the involvement of Mahendra Mahto in the
murder.
In cross-examination, she has deposed that
Mahendra Mahto had come on leave about 20-25 days back and
during this period the marriage of her sister was fixed and
Mahendra Mahto had actively taken part in the marriage. The
Scooty and Tempo were purchased by Mahendra Mahto in his
name but both were utilized by her sister. She has deposed that in
2014 the land was registered in the name of Sheela Devi and in
2015 the construction begun and only the finishing was yet to be
completed when her sister died. Insurance papers of Sheela Devi
are now in their possession. Sheela Devi had two mobiles which
are now in possession of the Police. The ticket of Mahendra Mahto
for his going back to Manali on train was booked by Sheela Devi.
The dead body was first located by her maternal uncle and her
cousin sister Rita Devi.
8. P.W.4 (Shivam Kumar Mahto) has stated that the
incident is of 03.07.2015 and he was playing in front of his house.
His mother had come back after dropping his father at the Station.
His maternal grandparents were present who had gone to the new
house to deliver food to his paternal grant parents. His mother had
received a call from his father who informed her that he is
returning back as he had left some belongings in the house. He
and his mother thereafter went to drop his maternal grandmother
to her house, came back and had dinner and went to sleep. His
mother woke him up and asked him to accompany her to the gate
as his father had come. The gate was opened and he went back to
sleep. When he woke up in the morning he could not find his
parents and he went in search of them to the house of his uncle.
He thereafter called his maternal grandparents and informed them
that his mother could not be found and after sometime his
maternal aunt, maternal grandparents, uncle and others had come
and started searching for his mother. His uncle told the others that
they should search in the house of the relatives as nothing can be
found inside the house. His uncle thereafter took a big stone and
kept it under the bed. This created a suspicion and his maternal
grandparents started making a search inside the house. There was
a big box from which the hair of his mother could be detected and
inside the box his mother was found lying dead having cut injuries
over her body. He has stated that his father on several occasions
had committed assault upon his mother. He and his brother were
also beaten and scolded and forced to go to sleep. His father used
to force his mother to bring money from her house.
In cross-examination, he has deposed that his
father would come once in a year for about a month. His father
used to take him, his brother, mother and maternal aunt to
various places like Manali, Agra and other religious places. In the
distant past his father had bought a Tempo and a Scooty for his
mother. He has deposed that on the date of the incident when he
had returned from school his father had already left for the Station.
After having dinner he had a conversation with his father and with
no one else. He went to sleep after dinner and woke up only to
open the door. After the incident he is staying with his
grandparents and maternal uncle. He has come to Court to record
his evidence along with his maternal grandfather Mansha Mahto,
maternal uncle Kalicharan Mahto and maternal aunt Asha. He had
not discussed about the case with them prior to his giving
evidence.
9. P.W.5 (Sakho Devi) has stated that on the date of
the incident she was in her house when her sister Kaso Devi had
called her over phone and informed her that Sheela Devi is
missing. At this information, she along with her elder brother
Mansha Mahto had left for Hombai to the house of Sheela Devi.
When she reached the house of Sheela Devi, the wife of Babu Lal
took her to the house of an Ojha. After sometime Rita Devi called
her and informed that the dead body of Sheela has been recovered
from inside a box kept in the Pooja room. When she came back
Police had already reached by then and the Police had taken out
the body from the box. She has stated that whenever she used to
ask Sheela Devi about her well-being she used to disclose that
Mahendra used to assault her and threaten her of committing
her murder whenever he came on leave. After the death of the first
wife of Mahendra Mahto he had solemnized marriage with Sheela
Devi.
In cross-examination, she has deposed that she
had seen the dead body of Sheela Devi. She does not know as to
how many times Mahendra Mahto had solemnized marriage.
10. P.W.6 (Kanso Devi) has stated that on the date of
the incident she after working in the godown had gone with her
husband to the new house of Sheela where plastering was being
done. She met the parents of Mahendra who stated that Mahendra
will leave for his work place and they may go to the house of Sheela
and stay there in the night. She thereafter left for her daughter's
place with her husband. Her daughter had disclosed that she has
come back home after dropping Mahendra. Her daughter had
packed food and asked her husband to deliver the food to her
parents-in-law. She stayed back while her husband left for
delivering the food. At about 8:00 P.M. Mahendra had called Sheela
on her phone and on being asked Sheela disclosed that Mahendra
is coming back as he had mistakenly left some of his belongings in
the house. When she came to know that Mahendra is returning she
asked Sheela to drop her at her house and Sheela and her two
children had accordingly done so. She has stated that at 06:30
A.M. she was cleaning her courtyard when the brother of
Mahendra came and disclosed that Sheela is not in the house and
both the children are distressed. She left for the house of Sheela
with her nephew and she confronted Babu Lal about the
whereabouts of her daughter to which Babu Lal advised her to
search in the house of the relatives. When she and the others tried
to enter the house Babu Lal prevented them and he stood near a
box with a stone. This act of Babu Lal evoked a suspicion and from
the threshold of the entrance some tufts of hair could be seen in
the box. When her brother Mansha Mahto opened the box the dead
body of her daughter with several injuries on her person was
located. Prior to the incident there used to be a regular quarrel and
assault by Mahendra Mahto upon her daughter. He used to
demand money and land and also used to issue threats of
committing the murder of her daughter. About a year back her
daughter was brutally assaulted by Mahendra Mahto with belt and
she was left at her house. She has further stated that her
statement u/s 164 Cr.P.C. was also recorded.
In cross-examination, she has deposed that Sheela
Devi was kept like a daughter at her matrimonial house after the
death of her first husband. She was once taken by Mahendra
Mahto to a religious tour and they were accompanied by her
daughter Sheela and Asha, the children of Sheela and Lalka
Mahto. No complaint or any Panchayati was ever held regarding
the matrimonial dispute between Sheela and Mahendra. She had
seen broken bangles in the Pooja room of her daughter. When she
was in the house of Sheela Devi she had heard Sheela Devi
conversing with Mahendra only once.
11. P.W.7 (Rita Kumari) has stated that the incident is
of 04.07.2015 in the night and she was at her matrimonial house
at village Tati. In the morning her maternal aunt Sakho Devi had
asked her whether Sheela is at her place and on giving a reply in
the negative Sakho Devi had disclosed that Sheela is not being
found. On such information she and her husband went to Hombai
to the house of Sheela Devi on a motorcycle. On reaching she
found her mother already present and her mother disclosed that
Babu Lal is preventing her from entering inside the house.
Thereafter she, her maternal uncle Mansha Mahto, her mother and
sister Asha went inside the house and when Mansha Mahto raised
an alarm she reached near the box and saw the dead body of
Sheela inside. When the Police came they opened the box and took
out the body. When about two years back she had gone to the
house of her sister she had seen marks of belt on her person due
to the assault by Mahendra. Her sister used to show her
apprehension that she will be killed by Mahendra.
In cross-examination, she has deposed that her
sister Leelawati had sent a message to the mobile of Mahendra
Mahto informing him about the murder of Sheela Devi. She had a
cordial relationship with Mahendra and both the families used to
visit the house of each other. There was no case instituted on
account of the quarrel between Sheela and Mahendra. She had not
disclosed to the Police that two years back Mahendra had
threatened Sheela Devi of committing her murder. She had also
not stated to the Police that Mahendra used to regularly commit
assault upon Sheela Devi.
12. P.W.8 (Dr. Jyotish Guria) was posted as a Jr.
Resident Doctor in the department of F.M.T., RIMS, Ranchi and on
04.07.2015 he had conducted autopsy on the dead body of Sheela
Devi and had found the following:
"(i) External Findings:
1. The body was average built. Rigor mortis
was present all over the body. Abdomen
distended. Nails cyanosed and face congested.
2. Injuries:- Incised wounds - (1) 5 c.m. x 1
c.m. x soft tissues over front of right forearm
lower part with cutting of soft tissues and blood
vessels. (2) 6 c.m. x 1/2 c.m. x soft tissues over
front of left forearm with cutting of soft tissues
and blood vessels. (3) 5 c.m. x 1/2 c.m. x soft
tissues over front of neck middle part with
cutting of soft tissues blood vessels and and
partial cutting of trachea. (4) 5 c.m. x ½ c.m. x
soft tissues over left side of labia majora and 6
c.m. x ½ c.m. x soft tissues over left side of
labia majora. (5) 4 c.m. x 1/4 c.m. and 5 c.m. x
½ c.m. x soft tissues over right side of labia
majora. (6) 3 c.m. x 1/2 c.m. x soft tissues over
posterior end of labia majora and perineum. (7)
5 c.m. x 1 c.m. x soft tissues over back of right
leg lower part with cutting of soft tissues and
blood vessels.
(ii) Linear cut:
6 c.m. x ¼ c.m., 5 c.m. x ¼ c.m., 4 c.m. x ¼ c.m. and
3 c.m. x ¼ c.m. over front of neck middle part.
(iii) Abrasions:
(1) 10 cm x ¼ cm, 10 cm x ¼ cm and 8 cm x
¼ cm over right lateral chest lower part. (2) 30
cm x ¼ cm and 25 cm x ¼ cm over right Thigh
lateral side. (3) 20 cm x ¼ cm and 25 cm x ¼
cm over back of right thigh.
(iv) Internal
(1) There is diffused contusion of left frontal
scalp and thin subdural blood and blood clots
present over left frontal region of brain. Internal
organs are pale.
(v) Opinion:
(1) The above noted injuries are antemortem
in nature. (2) Incised wounds and linear cut are
caused by sharp cutting cum pointed weapon
and abrasions by pointed weapon and internal
injuries are caused by hard and blunt
substance. (3) death the due to combined effect
of head injury and haemorrhagic shock. (4)
Times since death is 12:00 hrs to 24:00 hrs
from the time of post-mortem examination. (5)
Two number of slides made from vaginal swab
and are being sent to department of pathology
RIMS Ranchi for detection of spermatozoa, if
any."
He has proved the post-mortem report which has
been marked as Exhibit-5
In cross-examination, he has deposed that at the
time of conducting the autopsy he had not detected any foreign
particles like hair, Skin etc. in the body. The use of more than one
weapon at the time of murder cannot be ruled out.
13. P.W.9 (Kalicharan Mahto) is the informant who has
stated that on 03.07.2015 he was at Hazaribag and on 04.07.2015
at 06:00 A.M. his mother asked him to come as his sister Sheela
Devi was missing. He thereafter left for his sister's place along with
his wife and on reaching he found his mother, maternal aunt
Shanko Devi, his sisters Leela, Rita, Asha and maternal aunts Sago
and Sakho as well as the maternal uncle Mansha Mahto present.
He was immediately informed that his sister Sheela Devi has been
murdered and her body kept in a box. When he went inside, he
found the dead body of his sister inside the box which had marks
of violence on her body. He tried to reach Mahendra Mahto over
phone but it was found switched off. Thereafter he was sent an
SMS informing him about the incident. However, this did not evoke
any response. The Police were given the mobile number of
Mahendra and the Police on verification found its location at Gaya.
He had disclosed to the Police that on the 3rd at around 7:00-8:00
P.M. he had spoken on phone with his sister Sheela and Sheela
had disclosed to him about dropping of Mahendra at the Railway
Station at 03:00 P.M. His sister had also disclosed that Mahendra
is going in Jammu Tawi Express and his ticket is upto Allahabad.
She had stated that Mahendra had accidently left some of his
belongings at home and he is coming to collect them. She had
admitted about speaking on phone with Mahendra. He has stated
that Mahendra used to demand money from them and also used to
torture his sister. About a day or two prior to the incident
Mahendra had deliberately pushed his sister in front of a running
vehicle but she somehow escaped unhurt. Once Mahendra had
assaulted Sheela Devi brutally with a belt and though they had
wanted to lodge a complaint in the Police Station Sheela Devi
dissuaded them from doing so because she was a very decent lady.
Due to the torture and threat meted out to his sister by Mahendra
Mahto they were forced to give five decimals of land to Mahendra
Mahto. He has stated that Mahendra Mahto had taken insurance
of Rs. 30,00,000/- in the name of his wife and he was the nominee
so that once Sheela Devi dies he will get the money and thereafter
solemnize another marriage. Mahendra Mahto had committed the
murder of Sheela Devi in a planned manner. After the marriage of
Mahendra Mahto with Sheela Devi it came to light that Mahendra
was having an affair with several females. He did not change his
conduct and whenever he came home he used to consume liquor
and caused torture upon Sheela Devi. He has identified his
signature in the written report which has already been marked as
Exhibit-1. He has identified the signature of his sister Leelawati
upon the written report which has been marked as Exhibit-6. He
has also proved his signature in the seizure list which has been
marked as Exhibit-2/1 and 3/1. He has proved his signature in his
statement recorded before the Magistrate which has been marked
as Exhibit-7. He has stated that as soon as Mahendra came to
learn that a case has been instituted against him he switched on
his mobile and threatened him over phone.
In cross-examination, he has deposed that he had
reached the house of his sister at about 09:00-10:00 P.M. The
written report was prepared after having a consultation with all his
family members. He had come to Ranchi about one month prior to
the incident and had stayed for a week and during this period he
had met Mahendra Mahto on several occasions and had conversed
and had food with him. He has deposed that the written report was
given at about 07:00-8:00 P.M. and whatever he had come to know
is reflected in the written report. He had seen the insurance papers
of Sheela Devi and the said documents are now in his possession.
The papers with respect to his sister taking insurance in the Post-
Office are in his possession as well. After the death of his sister
and after Mahendra Mahto went to Jail he had obtained the death
certificate of his sister in which her father's name was there and
not the name of her husband. Mahendra Mahto had lodged a case
against them after the death of Sheela Devi for taking away the
documents and other valuables in which he is on bail. He has
denied the suggestion that he and the others had committed the
murder of Sheela out of grudge.
14. P.W.10 (Mansha Mahto) has stated that on
04.07.2015 at 06:00 A.M. his elder sister Sakho Devi had informed
him telephonically that Sheela Devi has become traceless. At this,
he went to Tatisilway Mankidhepa and from there he picked up
Sakho Devi and went on his motorcycle to Panchali village to the
house of his sister Kasho Devi and thereafter to the house of his
another sister Sago Devi and all went to the house of Sheela Devi.
When he reached the house of Sheela Devi he found both the
brothers of Mahendra present. The son of Sheela Devi namely,
Siddharth Kumar was also present and he disclosed that yesterday
his mother had gone to the Railway Station to drop his father and
at night his father had come to the house. He and his mother had
opened the gate and thereafter he had gone to sleep. Siddharth had
further disclosed that when he woke up in the morning he did not
find his parents and when he asked his uncle Babu Lal he also did
not say anything. He has stated that when he attempted to call
Mahendra he was prevented by Babu Lal Mahto. Babu Lal Mahto
also objected to his going towards the house of Mahendra Mahto.
After sometimes several persons assembled in the courtyard. His
elder sister Sago Devi had asked him to search intensively and
thereafter he starting searching ardently. When he went to the
Pooja room of Sheela Devi he found a big box which was locked
and from the box he could see some hair projecting out. When he
put his hand inside the box he could sense the presence of
somebody inside. He came out and informed the others and when
the upper part of the box was removed the dead body of Sheela
Devi was found. He has stated that whenever Mahendra Mahto
came home he used to commit torture upon Sheela Devi.
In cross-examination, he has deposed that he had
not stated to the Police about meeting Siddharth and Satyam. He
had not stated to the Police about the disclosure made to him by
Siddharth or that Mahendra had assaulted Sheela Devi with a belt
causing her injuries.
15. P.W.11 (Anand Kishor Prasad) was posted as an
Officer-Incharge in Mesra O.P. and the formal FIR was registered in
Sadar P.S. He has identified the handwriting and signature of
Saryu Anand the Officer-Incharge of Sadar P.S. in the written
report which has been marked as Exhibit-6/1. He has proved the
forwarding report which has been marked as Exhibit-6/2. He had
taken over the investigation of the case. He has proved the formal
FIR which has been marked as Exhibit-8. He has also proved the
carbon copy of the inquest report which has been marked as
Exhibit-9. He had sent the body for post-mortem examination. He
had inspected the place of occurrence which is at village Hombai in
the house of Sheela Devi built of bricks and asbestos. The main
door is of iron and there is a latch attached to it where a lock can
be put. The house consists of five rooms, a kitchen, a bathroom, a
store room without any door and a Pooja room. In the Pooja room
is situated a trunk in which the dead body of Sheela Devi was said
to have been found. He had recorded the statement of Leelawati
Kumari, Keso Devi and Shivam Kumar who all had supported the
case of the prosecution. Shivam Kumar had stated that when his
father came at night his mother had woken him up and on opening
the gate his father came inside and his mother sent him to sleep.
When he woke up in the morning he could not find his parents and
the matter was informed to his relatives who came and started
searching for them. Shivam had also disclosed that his father used
to assault his mother on trivial issues. He and his brother were
beaten by his father and forced to go to sleep. He has prepared two
seizure lists; the first is of a blood stained bed sheet inside the
trunk and another a blood stained bed sheet from the ground while
the second seizure list of the trunk, blood stained wearing apparels
of a child, saree, paijama, bed sheet, petticoat, nighty, shirt, bag
and a mattress which all were blood stained. A third seizure list
was prepared on 05.07.2015 at 05:40 P.M. on account of the
seizure of a Gionee smart phone and an identity card. All the
seizure lists have been proved and marked as Exhibit-10, 10/1 and
10/2. He had thereafter recorded the reinstatement of the
informant who had fully supported the prosecution case. The
informant had stated that Mahendra Mahto used to regularly
assault his sister Sheela Devi and whenever Mahendra Mahto
returned to his work place he always booked tickets of his
destination but this time the ticket was booked for Allahabad. In
course of investigation he had recorded the statements of Sakho
Devi, Asha Kumari, Rita Kumari and Mansha Mahto. Mahesh
Narayan who is the acquaintance of the informant had disclosed
that Mahendra Mahto had called him up at 11:00-12:00 A.M. and
he had admitted his guilt and asked him to manage his case. He
had also recorded the statement of Vijay Mahto who has also
supported the prosecution case. He had obtained the mobile
number of Mahendra Mahto and Sheela Devi from the informant
and for CDR he had sent the number to the technical cell. He had
arrested Mahendra Mahto and his confessional statement was
recorded which has been marked with objection as Exhibit-11. He
had obtained the CDR of mobile numbers 8863899704 and
8894540778 and it was detected that on 03.07.2015 at 04:39:46
Sheela Devi had a conversation from her mobile with Mahendra
Mahto. The tower location of Mahendra Mahto was showing at
Barlanga. He had obtained the CDR of mobile number 8863899704
belonging to Mahendra Mahto and his tower location on
03.07.2015 at 20:21:25 was at Chhitarpur Ramgarh, on
04.07.2015 at 14:20:00 at Annapurna Hotel LS Lane, Station Road
near Gaya Station and on 04.07.2015 at 21:52:00 at Manoj Kumar
Kesharwani, Muthiganj Allahabad. He had obtained the CDR of the
mobile number 8894540778 from Bharti Airtel Limited which has
been certified by the Nodal Officer of the company. He has proved
the certificate which has been marked as Exhibt-12 with objection.
He has proved the CDR of mobile number 8863899704 which has
been marked as Exhibit-13. He thereafter proceeded to
Barkakhana Railway Station where the Station Superintendent
had disclosed that Gaya Station does not fall in the route of
Jammu Tawi Express. He had submitted an application to that
effect which has been proved and marked as Exhibit-14 with
objection. He had obtained the polygraph test report of Mahendra
Mahto from Directorate of Forensic Science, Gandhi Nagar, Gujarat
which has been proved and marked as Exhibit-15 with objection.
In course of investigation, he had got the statements of Kalicharan
Mahto, Shivam Kumar, Satyam and Leelawati recorded in Court
u/s 164 Cr.P.C. The seized wearing apparels were sent to FSL,
Ranchi and a report was obtained. On finding the incident to be
true charge-sheet was submitted against Mahendra Mahto keeping
investigation pending against unknown others. The Gionee mobile
has been marked as material Exhibit-I, the identity card of
Mahendra Mahto as material Exhibit-II, the bed sheets have been
marked as material Exhibits-III and IV and the trunk has been
marked as material Exhibit-V.
In cross-examination, he has deposed that when he
reached the place of occurrence a huge crowd had already
gathered. At the initial stage itself he had met the informant
Kalicharan Mahto, the sisters of the deceased, the mother of the
deceased, the children of the deceased and the maternal aunt of
the deceased. The dog-squad had come to the place of occurrence
but it could not detect any clue about the perpetrators of the
murder. He had not found any suspicious object at the place of
occurrence. He did not have any proof that on 03.07.2015
Mahendra Mahto had not travelled by Jammu Tawi Express from
Ranchi to Allahabad. He had not given any written application in
any of the Station for providing CCTV footage from 03.07.2015 to
04.07.2015. Both the mobiles of the accused showed different
tower locations. He could not collect any evidence to show that
from 03.07.2015 to the morning of 04.07.2015 Mahendra Mahto
was at the place of occurrence. No person had disclosed to him
about seeing Mahendra Mahto coming back to the place of
occurrence. He had come to know from the informant that
Mahendra Mahto on hearing about the matter is returning back
and as soon as he reached he was arrested. At the time of his
arrest his mobiles were also seized. He does not have the
knowledge that from Ranchi Station to Allahabad Station CCTVs
are installed everywhere. In course of investigation, he could not
gather any evidence about Mahendra Mahto deboarding from the
train at which place and catching the train at which place. From
03:45 P.M. on 03.07.2015 to 04:35 A.M. on 04.07.2015 none of the
persons residing near the place of occurrence had either seen
Mahendra Mahto coming or going from the place of occurrence.
None of the persons residing nearby the place of occurrence were
inclined to give their statement citing domestic dispute as the
reason for the incident. He had recorded the statement of Leelawati
on 04.07.2015 before 01:30 P.M. and Leelawati had never stated
that Shivam had disclosed to her that his father had return back to
the house at night. He had recorded the statement of Kaso Devi
who had also not disclosed about Shivam confiding to her about
his father's having come back home at night. In his statement
Shivam had not stated about not disclosing the fact of his father
coming back at night to his maternal grandparents, maternal uncle
and aunt. Shivam in his statement had disclosed about his father
coming home but he had not disclosed as to whether he had
identified his father or not. He had also not stated as to whether he
had his belongings with him or not. He had stated about his uncle
bringing a big stone and putting it under the bed but no such
stone could be found by him during investigation. In his statement
Kalicharan Mahto had not stated that Shivam had disclosed to him
that his father had come back to his house on the fateful night. He
has proved the forwarding report of the accused which has been
marked as Exhibit-B. His application for taking remand of the
accused has been proved and marked as Exhibit-C. The
application given to the Court for permission to conduct
polygraphy test of the accused in Ahmadabad has been marked as
Exhibit-D. He had given an application to the Court for recording
the 164 Cr.P.C. statement of Shivam Kumar on 09.09.2015 and in
his statement he had for the first time disclosed about the incident
at night. He has deposed that on 03.07.2015 from the mobile of the
deceased there was a call to mobile no. 8894540778 at 19:39 for
64 seconds. The mobile no. 8894540778 belongs to Mahendra
Mahto. The call was made by the deceased to Mahendra Mahto. At
20:09 there was a conversation between mobile no. 9771458402
and 7870002379 and the call was for 439 seconds. He does not
know the owner of the mobile no. 9771458402 though the other
mobile is of the deceased. After seeing the case diary he has stated
that mobile no. 9771458402 belongs to the informant. He cannot
say the tower location of mobile no. 9771458402. In course of
investigation he could not come across any evidence that
Mahendra Mahto had called the deceased on 03.07.2015. There
were two PLIs in the name of Sheela Devi of Rs. 5,00,000/- each
where Shivam Kumar Mahto was shown as the nominee. He had
put a lock in the house of the accused. Later on he had given a
document showing a land in the name of Sheela Devi to the
informant. The original copy of the insurance policy was not given
to the informant. The witness Asha Kumari had not stated that on
03.07.2015 the deceased had dropped Mahendra Mahto at the
Railway Station and he had come back in the night and after
murdering Sheela Devi put her in a box. Witness Leelawati had not
stated before him that the accused had called the deceased to
Manali to commit her murder and the plan failed since Asha had
also gone with the deceased. The witness Sakho Devi had never
stated before him that the accused had demanded a four wheeler
and a piece of land and on non-fulfilment he would cut the neck of
the deceased. The informant Kalicharan Mahto had stated before
him that as soon as he reached Hombai his maternal aunt Sakho
Devi had disclosed to him that his sister has been murdered and
kept inside a box. The witness Mansha Mahto had not stated that
the son of Sheela Devi had disclosed that his father had come back
at night. In course of the entire investigation not a single eye-
witness could be found.
16. P.W.12 (Manoj Kumar Sharma) was posted as a
Judicial Magistrate at Ranchi Civil Court and on 09.09.2015 he
had recorded the 164 Cr.P.C. statement of Kasho Devi. He has
proved the 164 Cr.P.C. statement of Kasho Devi which has been
marked as Exhibit-17. On 10.09.2015, he had recorded the 164
Cr.P.C. statement of Shivam Kumar which has been proved and
marked as Exhibit-17/1. He had recorded the 164 Cr.P.C.
statements of Leelawati Devi and Kalaicharan Mahto on
14.09.2015 which have been proved and marked as Exhibit-17/2
and Exhibit-17/3 respectively.
17. The statement of the accused was recorded u/s 313
Cr.P.C., in which, he has denied his complicity in the commission
of the offence.
18. The defense has examined as many as seven
witnesses in support of its case.
19. D.W.1 (Krishna Kumar) belongs to the village of
Mahendra Mahto and he had a cordial relationship with Sheela
Devi. Sheela Devi had never disclosed about any dispute with her
husband to him. He also knew the in-laws of Mahendra Mahto and
never had anyone made any complaint against Mahendra Mahto.
He has worked in BIT Mesra till 15.09.2016. Mahendra Mahto was
apprehended by the Police near Chutupalu Toll Plaza.
In cross-examination, he has deposed that he used
to frequent the house of Mahendra Mahto once or twice a week. It
is not a fact that whenever Mahendra Mahto came on leave to his
house he used to assault Sheela Devi.
20. D.W.2 (Agam Lal Mahto) is the brother of Mahendra
Mahto who has stated that Mahendra Mahto along with his family
used to reside separately for the last 8-10 years. On 04.07.2015 in
the morning he came to know that Sheela Devi is missing and this
information was passed on to the family members of Sheela Devi at
07:30 A.M. On receiving such information the in-laws of Mahendra
had come to the place of occurrence. The Police had reached the
place of occurrence at 08:00-08:30 A.M. and prior to the arrival of
the Police the in-laws of Mahendra had already reached. The
informant Kalicharan had come to the place of occurrence at 09:30
A.M. On coming to know about the incident the accused had left
for Ranchi and he was arrested by the Police near Ormanjhi Toll
Plaza. The Police did not give permission to Mahendra Mahto to see
the dead body of his wife. He has proved the certified copy of the
deed by which Mahendra Mahto had purchased seven decimals of
land in the name of Sheela Devi in which a house was being
constructed by Mahendra Mahto and which has been marked as
Exhibit-E. He has proved the death certificate of Sheela Devi in
which the name of the father of the deceased finds place instead of
the husband of the deceased and which has been marked as
Exhibit-F. In order to grab the amount accruing in the name of
Sheela Devi in the Kisan Vikas Patras the name of the father of the
deceased was deliberately inserted. The train ticket of Mahendra
Mahto showing his destination as Allahabad was returned back to
him by the Police after two years and the same has been proved
and marked as Exhibit-G. The original ticket of Mahendra Mahto
returning from Allahabad to Gaya on 05.10.2015 on hearing about
the incident has been proved and marked as Exhibit-H. He has
proved the application submitted by Mahendra Mahto on
18.04.2016, in which, he had requested for return of the seized
articles mentioned therein which has been marked as Exhibit-I. He
has identified the diary of Sheela Devi in which the expenses in the
construction of the house was taken down and which has been
marked as Exhibit-J with objection. The information sought for by
him regarding the running of the train on 03/04.07.2015 was
furnished by the Railways and the same has been marked as
Exhibit-K with objection. The application for producing CCTV
footage which was subsequently denied as the storage in the DBR
is for one month only has been marked as Exhibit-L with objection.
Another application seeking the record of Railway reservation of
Mahendra Mahto has been marked as Exhibit-M with objection. He
has proved the receipts of the material which has been marked as
Exhibit-N with objection. He has proved the Bank statements
sought for by Mahendra Mahto which has been marked as Exhibit-
O with objection.
In cross-examination, he has deposed that Exhibit-
E does not reveal that the land was purchased by Mahendra
Mahto. Regarding the withdrawal of the amount towards Kisan
Vikas Patras he has stated that the amount has not been
withdrawn though at the same time he has deposed that he does
not know as to whether there was any withdrawal or not. The
record of Railway reservation of Mahendra Mahto was sought for
after two years since the ticket was located after two years.
21. D.W.3 (Rani Kumari) is the niece of Mahendra
Mahto who has stated that after the last rituals of Sheela Devi was
completed the maternal grandparents of Shivam had taken him to
their house. In course of going to School she sometime meets
Shivam but he has never disclosed the complicity of his father in
the murder. There was a cordial relationship between his uncle
and aunt. She had never seen any quarrel between her uncle and
aunt.
In cross-examination, she has deposed that she
does not remember the date, in which, her uncle had taken her to
Jammu & Kashmir.
22. D.W.4 (Maheshwar Narayan) has stated that
Mahendra Mahto belongs to his village. After the incident he had
gone to the house of the deceased and at that point of time the in-
laws of the deceased were not present. After the incident, he had a
telephonic talk with Mahendra Mahto and on his information
Mahendra Mahto came back home. The Police had taken some
signatures of him on some papers but had not recorded his
statement. No one in the house of Mahendra Mahto had stated that
the murder was committed by Mahendra Mahto.
In cross-examination, he has deposed that when he
had gone to the house of Sheela Devi her dead body was found
lying inside the box. There were no one present when he had gone
to the house of Sheela Devi.
23. D.W.5 (Fuliya Devi) is the mother of Mahendra
Mahto who has stated that she had never seen any quarrel
between her son and daughter-in-law. On getting an information
about the incident, she had reached the place of occurrence at
10:00-11:00 A.M. The Police was there and so were the family
members of the deceased.
In cross-examination, she has deposed that on the
date of the incident she was not in her original house but in the
new house which was being built.
24. D.W.6 (Sanjay Kumar Singh) has stated that
Mahavir Mahto had joined the Army on 14.01.2002 and on
completion of training he was posted at 65 Engineer Regiment. He
has produced the Long Roll on the orders of his Commanding
Officer which was filled up after the posting was done and the
name of Sheela Devi is entered as a nominee. In the Army Group
Insurance Fund Sheela Devi is a nominee to 50% of the amount
while his mother Fuliya Devi is a 50% nominee. In the column of
Family Pension the name of Sheela Devi has been inserted. In the
Service Book the name of the sons of Mahendra Mahto has been
mentioned. Before going to Jail there was no complaint against
Mahendra Mahto. He has proved the letter by virtue of which the
Long Roll was produced in Court which has been marked as
Exhibit-P. He has identified the signature of Captain Manik
Mahajan in the sealed envelope containing the certified copy of the
documents of Army Life Insurance which has been marked as
Exhibit-Q. Another envelope containing the photo copy of Long Roll
has been marked as Exhibit-R. The part of the Long Roll which
contains the details of the family members of Mahendra Mahto has
been proved and marked as Exhibit-S. He has proved the letter by
which he was directed to produce the details in Court which has
been marked as Exhibit-T.
In cross-examination, he has deposed that after the
arrest of Mahendra Mahto he does not know as to what action has
been taken by the department against him.
25. D.W.7 (Babu Lal Mahto) is the brother of Mahendra
Mahto who has stated that Shivam had never disclosed about his
father regarding the incident.
In cross-examination, he has deposed that on the
date of the incident at 06:30 A.M. Shivam and Satyam had told
him that their mother is not being found. He had not seen the dead
body of Sheela Devi which was recovered from inside a box.
26. It has been submitted by Mr. B.M. Tripathy,
learned Senior Counsel for the appellant that admittedly there are
no eye-witnesses to the occurrence and the entire case is based on
circumstantial evidence. The case of the prosecution hinges on the
premise that the appellant had come back to his house even after
he was dropped at the Station under a well thought out plan,
committed the brutal murder in cold blood, placed the body in a
trunk, locked it and nonchalantly walked away and this fact is
borne out from the evidence of P.W.4 who is the eldest son of the
deceased and the appellant but the version of P.W.4 is manifested
by the tutoring he was subjected to on account of his remaining at
his maternal grandparent's place after the last rites were performed
as well as the evidence of the Investigating Officer (P.W.11) which
has completely demolished such evidence. Mr. Tripathy, has
submitted that except P.W.1 and the official witnesses all the other
witnesses are closely related to the deceased and the tenor and
consistency in their evidence regarding the torture committed by
the appellant upon the deceased seems to reveal a premeditated
biasness towards the appellant, the objective being to usurp the
valuables and securities belonging to the deceased. The
investigation of the case has been sloppy to say the least as the
various angles of the case were not explored including the role
played by the informant with whom the deceased had a
conversation for almost eight minutes in the night of the incident
though with the appellant she had a conversation of about a
minute. Mr. Tripathy has submitted that the CDR proved that it
was the deceased who had called the appellant on phone and not
vice-versa which minimises the claim of the prosecution that the
appellant had come back to his house as he had forgotten to take
some belongings with him. The learned trial court should have
given equal weightage to the defense evidence but instead seems to
have treated the prosecution evidence as the gospel truth and the
circumstances chalked out does not complete the chain to indict
the appellant.
27. Mr. Nehala Sharmin, learned Spl. P.P. for the State
has submitted that the evidence of the witnesses specially P.W.4
spells out the circumstances which leads to an inference about the
appellant surreptitiously committing the murder of his wife. There
cannot be any doubt upon the informant merely on account of
conversing with the deceased for eight minutes in the fateful night
as it was a normal conversation between siblings. The tower
location of the mobiles of the appellant further solidifies the claim
that the appellant had deboarded and after committing the assault
simply disappeared creating an alibi which has rightly been
discarded by the learned trial court. It has also been submitted
that the circumstances which have been delineated by the learned
trial court cannot be tinkered with primarily for the reason that the
same is based on the records of the case.
28. Mr. Vijiyant Verma, learned counsel appearing for
the informant has reiterated the submissions of the learned Spl.
P.P.
29. We have heard the learned counsel for the
respective sides and have also perused the Trial Court Records.
30. The missing of the deceased Sheela Devi in the
morning of 04.07.2015 triggered a frantic search for her and since
all the relatives denied that Sheela Devi had come to their house
the search narrowed down to the house itself but as per P.W.3,
P.W.6, P.W.7 and P.W.10, Babu Lal Mahto (D.W.7) prevented them
from entering the house. The role of Babu Lal Mahto has been
assigned by P.W.4 of keeping a stone under the cot but this fact
has been demolished by the Investigating Officer (P.W.11) who had
not found any stone under the cot. In spite of such resistance the
witnesses had entered into the house and on search a trunk was
located with some hairs coming out from the trunk and the dead
body of Sheela Devi was found inside the trunk with marks of
brutality located all over the body including her genitals. The post-
mortem report has found several injuries caused by sharp cutting
pointed weapon. The violence unleashed on the body of Sheela Devi
speaks about an act committed in vengeance or in an enraged
condition. This brings us to the question of the relationship
existing between the appellant and his wife prior to her death. The
marriage of Sheela Devi was solemnized with Shiv Prakash Mahto,
the elder brother of the appellant but on account of the untimely
death of Shiv Prakash Mahto, the marriage of Sheela Devi was
solemnized with the appellant with the consent of both the sides.
After the death of her first husband, Sheela Devi was kept at her
matrimonial house with full dignity and honour as stated by P.W.6,
the mother of the deceased. The appellant, as per the evidence of
the relatives of the deceased from the initial stage of the marriage
used to commit torture upon the deceased whenever he came on
leave to his house. It is said that a few days before the murder
Sheela Devi was pushed by the appellant before a running vehicle
in the highway but she had a providential escape. The witnesses
have, therefore, projected the appellant as a tormenting husband
who never let any opportunity of committing mental and physical
torture upon the deceased go by and he was also eyeing the
insurance policy in the name of his wife in which he was the sole
nominee. This venomous picture of the appellant seems to be an
afterthought as these witnesses have also stated about the
appellant frequently taking them on tours to various iconic places
as well as religious tours. If, at all, the appellant was such a person
as demonstrated by the witnesses and who constantly demanded
money and land there was no occasion for such visits with his wife
and in-laws. P.W.4 has deposed that the appellant had purchased
a Scooty and an auto-rickshaw for the deceased. His father also
used to regularly send money to the deceased. It is an admitted
fact that no complaint was made anywhere during all these years
of marriage which further negates the theory of attrition existing
between the appellant and the deceased. As per P.W.9, the
insurance papers of the deceased are in his possession coupled
with the death certificate of Sheela Devi only bearing the name of
her father and not that of the appellant which further eradicates
the motive of the appellant and on the contrary highlights the
otherwise conduct of the informant and his family members.
31. The entire case of the prosecution is based on
circumstantial evidence and the circumstances indicating the
involvement of the appellant in the commission of the murder
originates from the evidence of the child witness P.W.4. P.W.4 in
his examination-in-chief has narrated that a call was received by
his mother from his father wherein his father had stated about
returning back as he had left some stuff at home. However, in his
cross-examination, he has given a different story to the effect that
after dinner he had a conversation with his father. He has not
stated that his father had told him that he is returning back to his
house. The version of P.W.4 is further contradicted by the CDR as
it was the deceased who had called the appellant at 07:39 P.M. for
a duration of 64 seconds. P.W.4 has also stated that after having
dinner he had gone to sleep and he was awakened by his mother
and he accompanied his mother to open the gate and thereafter he
again went to sleep. It is to be noted herein that P.W.4 was aged 10
years when the incident had occurred and it would border on
absurdity to fathom that the deceased who has been projected to
be a gentle lady and even vouched by the appellant in his 313
Cr.P.C. statement would wake up the sleeping child only to
accompany her to open the door. Another feature which is
noticeable in the evidence of P.W.4 is that he had not stated that
he had seen his father on opening the door. There appears to be a
presumptive evidence that it was the appellant who was standing
at the door. This frailty in the evidence of P.W.4 is anchored in the
evidence of the Investigating Officer (P.W.11) who has deposed that
in his statement P.W.4 though has stated about his coming back to
the house but had not stated as to whether he had identified the
person as his father or not. The identity of the person knocking at
the door has been inferred to be the appellant without there being
an iota of evidence signifying such fact. Another interesting feature
of the case which is based on the evidence of P.W.4 is that of the
other witnesses consistently stating about the appellant returning
back to his house at night based on the purported disclosure of
P.W.4. Here again the evidence of P.W.11 assumes significance as
P.W.4 had not stated before him that he had disclosed to his
maternal grandparents, maternal uncle and aunts about the
appellant coming back to his house at night and this fact has
further been substantiated by the evidence of P.W.3, P.W.6 and
P.W.9. This fact seems to have been subsequently developed as
even in the written report mention has not been made about the
disclosure of P.W.4. Since the entire case of the prosecution is
primarily based upon the evidence of the child witness the
principles' governing the version of a child witness regarding his
truthfulness or otherwise has to be considered. In this context, we
may refer to the case of "Pradeep versus The State of Haryana"
reported in 2023 LiveLaw (SC) 501, wherein it has been held as
follows:
"8. It is a well-settled principle that corroboration of
the testimony of a child witness is not a rule but a
measure of caution and prudence. A child witness of
tender age is easily susceptible to tutoring.
However, that by itself is no ground to reject the
evidence of a child witness. The Court must make
careful scrutiny of the evidence of a child witness.
The Court must apply its mind to the question
whether there is a possibility of the child witness
being tutored. Therefore, scrutiny of the evidence of
a child witness is required to be made by the Court
with care and caution."
32. It is an admitted fact that P.W.4 is staying with his
maternal grandparents at their house from the date of the incident
and being a boy of tender age he is always susceptible to tutoring
and the script which has unfolded before us divulges about such
tutoring. The frequent torture which used to be committed by the
appellant upon the deceased has been stated in unison by P.W.4
and all the witnesses from his maternal side. There is hardly
anything to differentiate between their evidence and the evidence of
P.W.4 and too much of consistency even in developing the story as
we have discussed above gives rise to a great degree of scepticism.
The evidence of P.W.4 in the background facts has failed to pass
the test of "reliability" and "truthfulness" as it is apparent that he
is a tutored witness. The other circumstance banked upon by the
prosecution is the tower location of the mobile of the appellant. The
tower location as per the CDR of the mobile of the appellant does
not indicate with certainty that the appellant had deboarded from
the train and after committing the murder had taken a different
means of transportation to his destined place. P.W.11 has also
stated so in his evidence. The CDR of the mobiles of the appellant
gives an ambiguous picture and the technical evaluation of the
mobile does not cater to the case of the prosecution.
33. As per the prosecution, the murder had taken place
inside the house which seems to be highly unlikely considering the
dearth of any evidence as well as the brutality with which such
murder was committed and that too when the children of the
deceased were present inside the house. Some wearing apparels
and bed sheets blood stained were recovered from inside the trunk
but surprisingly there was no pool of blood found in spite of so
many blows inflicted by the appellant upon the deceased with
sharp cut pointed weapon.
34. Circumstantial evidence, as is wont depends upon
various facets of the case and the principles are analysed on the
basis of the following condition laid down in the case of "Sharad
Birdhichand Sarda versus State of Maharashtra" reported in (1984)
4 SCC 116:
"153. A close analysis of this decision would
show that the following conditions must be fulfilled
before a case against an accused can be said to be
fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be fully
established.
It may be noted here that this Court
indicated that the circumstances concerned
"must or should" and not "may be" established.
There is not only a grammatical but a legal
distinction between "may be proved" and "must
be or should be proved" as was held by this
Court in Shivaji Sahabrao Bobade v. State of
Maharashtra where the observations were
made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
"Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental
distance between „may be‟ and „must be‟ is long
and divides vague conjectures from sure
conclusions."
(2) the facts so established should be
consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of a
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable ground
for the conclusion consistent with the innocence
of the accused and must show that in all human
probability the act must have been done by the
accused."
35. As we have noticed above, the circumstances put
forward by the prosecution shows up many possibilities, the least
possibility is being the involvement of the appellant in the
commission of the murder of his wife. In fact, there is no
conclusive proof or an iota of culpability involving the appellant in
such incident. At the same time, we cannot but express our
anguish in the manner in which the investigation has been carried
out and it seems that the investigation proceeded on the
assumption that it was the appellant who was solely responsible
for the murder without exploring other angles, which, if it was
done might have projected a panorama of possibilities in nabbing
the culprit.
36. Be that as it may the finding recorded by us is a
pointer to the innocence of the appellant. The circumstances noted
by the learned trial court in arriving at the guilt of the appellant
are not conclusive in nature and are not based on proper
appreciation and in-depth scrutiny of the materials available on
record.
37. We, therefore, as a consequence to the finding
recorded by us set aside the judgment and order of conviction and
sentence dated 04.06.2019 (sentence passed on 07.06.2019)
passed by Sri Rajeev Anand, learned Additional Judicial
Commissioner-XIII, Ranchi in Sessions Trial No. 595 of 2015.
38. This appeal is allowed.
39. Since the appellant is in custody he is directed to
be released immediately and forthwith, if not, wanted in any other
case.
40. Pending I.As., if any, are closed.
(Rongon Mukhopadhyay, J.)
(Pradeep Kumar Srivastava, J.)
High Court of Jharkhand at Ranchi
Dated, the 9th day of September, 2024.
A. Sanga/NAFR
