Jugal Kishore Sundi vs The State Of Jharkhand
2024 Latest Caselaw 9333 Jhar

Jharkhand High Court

Jugal Kishore Sundi vs The State Of Jharkhand on 19 September, 2024

Author: Ananda Sen

Bench: Ananda Sen

          IN THE HIGH COURT OF JHARKHAND AT RANCHI

                 Criminal Appeal (DB) No. 733 of 2024

                                   With

                           I.A. No. 5470 of 2024

     [Against the Judgment of conviction and order of sentence dated
    01.03.2024 passed by the learned Sessions Judge, West
    Singhbhum at Chaibasa in Sessions Trial No. 49 of 2020].

   Jugal Kishore Sundi, son of late Dibru Sundi, resident of village- Bara
   Guira, Tola Diurisai, P.O. Bara Guira, P.S. Muffasil, District- West
   Singhbhum, Jharkhand.                           ..............APPELLANT
                              Versus
    The State of Jharkhand                      ............RESPONDENT
                                   ......

     For the Appellant :   Mr. Vishal Kr.Tiwari, Advocate.
     For the State     :   Mr. Vineet Kr. Vashistha, A.P.P.
                                     ......

                              PRESENT
                           SRI ANANDA SEN, J.
                           SRI GAUTAM KUMAR CHOUDHARY, J.

                             JUDGMENT

By Court:

(Dated: 19.09.2024)

This case has been listed today under the heading "For Orders" to consider an interlocutory application (I.A. No. 5470 of 2024) filed under Section 389(1) Cr.P.C., wherein a prayer has been made to suspend the sentence of the appellant and release him on bail. This appeal has already been admitted for hearing. The trial court record is also with us and is also with the respective counsel for the appellant and the State. Learned counsel for the appellant argues the case at length by placing all the evidences. The counsel for the State also argues their case on merit by referring to all the evidences and other documents.

2. Considerable time has been consumed in hearing this case. On query, both the counsel for the parties submit that during final

Page/1 hearing of the appeal, nothing more needs to be argued than what they have argued today. They requested that when they have already argued this appeal at length, this appeal itself may be disposed of at this stage. Considering their request, we have taken up this appeal and is passing this judgment as we also feel that keeping his appeal pending for more than a decade will not be proper, when we have already heard the parties.

3. This criminal appeal is directed against the Judgment of conviction and order of sentence dated 01.03.2024 passed by the learned Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 49 of 2020, whereby and whereunder, the appellant having been found guilty of charge under Section 302 of Indian Penal Code and has been convicted and sentenced to undergo imprisonment for life and fine of Rs.10,000/-.

4. The learned counsel for the appellant submits that without any legal evidence, this appellant has been convicted in this case as all the prosecution witnesses have been declared hostile, thus this is a case of no evidence. He further submits that the learned Trial Court has wrongly applied section 106 of the Evidence Act in this case. He also submits that on the aforesaid ground, this appeal needs to be allowed, as the appellant has falsely been implicated in this case.

5. Counsel for the State submits that the informant has clearly stated that it is this appellant, who has committed the murder of the deceased, but he admits that all the witnesses on the fact of this case including the informant has been declared hostile. He further submits that in the fradbeyan the informant has supported the case of the prosecution, which is sufficient to convict this appellant.

6. The first information report is at the instance of Salina Sundi (P.W.1). She stated that she had gone towards paddy field and her mother was cooking food when this appellant, who is her father, was present at home. When the informant returned, she found the door of the house was bolted from inside. She knocked the door and raised alarm, but no one opened the door nor she could hear any sound from the house. She went to the house of her uncle and stated the Page/2 aforesaid facts to him. He also tried to open the door of the house, but as the door was not opened, he climbed the roof-top, removed the tiles and entered the house and opened the door. Entering the room, the informant found her mother was dead and her father was sitting on the cot. On query, her father (this appellant) stated that since her mother did not sleep with him, he committed murder of her mother.

7. On the basis of the aforesaid fardbeyan, the FIR was registered under Section 302 of the Indian Penal Code. After investigation, the police submitted chargesheet under Section 302 IPC against this appellant. Accordingly, cognizance of the offence was taken and the case was committed to the Court of Sessions for trial. As the appellant pleaded not guilty, charge was framed against him for the aforesaid section.

8. In order to prove the charges against the accused, the prosecution had examined altogether thirteen witnesses, who are as follows:-

P.W.1- Salina Sundi (the informant of this case) P.W.2- Pyare Lal Sundi P.W.3- Dr. Prince Pingua P.W.4- Vijay Singh Sundi P.W.5- Narayan Sundi P.W.6- Govind Sundi P.W.7- Anirudra Purmani @ Sujit Gope P.W.8- Saraswati Sundi P.W.9- Kasturi Sundi P.W.10- Amit Sundi P.W.11- Ritesh Kumar Pandey P.W.12- Deepak Kumar Paswan P.W.13- Rishi Kumar.

9. Several documents were also exhibited, which are as follows:-

Ext.-1: Signature of informant namely Salina Sundi upon fardbeyan.

Ext.-1/1: Signature of P.W.2 upon fardbeyan. Ext.-/1/2: Fardbeyan of informant in writing and signature of ASI Santosh Kumar Tiwary.

Ext.-1/3: Endorsement upon fardbeyan to register FIR in writing and signature of the then Officer-in- Charge of Muffasil P.S. Namely, Ashutosh Kumar. Ext.-2: Signature of informant upon her statement under Section 164 Cr.P.C.

Ext.-2/1: Statement under Section 164 Cr.P.C of the

Page/3 informant in writing and signature of Rishi Kumar, Judicial Magistrate, 1st Class, Chaibasa. Ext.-3: Signature of P.W.2 upon his statement under Section 164 Cr.P.C.

Ext.-3/1: Statement under Section 164 Cr.P.C of P.W.2 Ext.-4: Signature of P.W. 2 upon carbon copy of inquest report of the deceased.

Ext.-4/1: Signature of P.W. 4 upon carbon copy of inquest report of the deceased.

Ext.-4/2: Carbon copy of inquest report of the deceased in writing and signature of ASI, Ritesh Kumar Pandey. Ext.-5: Signature of P.W. 2 upon memo of arrest of the accused.

Ext.-5/1: Memo of arrest of accused in wring and signature of the then Officer-in-Charge.

Ext.-6: Postmortem report of the deceased in writing and signature of Dr. Prince Pingua.

Ext.-P-7: Formal FIR under signature of the then Officer-in-

Charge of Muffasil P.S. Ext.-P-8: Confessional statement of accused in two sheets under writing and signature of Ritesh Kumar Pandey.

10. The Trial Court thereafter considering the evidences had convicted the appellant for committing the offence under Section 302 of the Indian Penal Code. The FIR and the conviction is under Section 302 of the Indian Penal Code.

11. To prove the homicidal death, the prosecution has examined the Doctor, who conducted the postmortem and has exhibited the postmortem report, which has been marked as Ext. 6. The doctor found the following external and internal injuries on the person of the deceased.

(i) Multiple abrasion and bruise on, above and below the thyroid cartilage and is abrasion appears semicircular area in shape. On dissection, it is found hyoid bone broken and hyperaemic soft tissue of the neck. Lungs-congested, heart left chamber empty.

(ii) Bruise on right shoulder back side, black in colour, size ¼ inch x ¼ inch.

(iii) Bruise on left shoulder and scapular area, black in colour, size ¼ inch x ¼ inch.

(iv) Black bruise on left chest.

(v) A black bruise on let eyebrow, ½ inch x ¼ inch.

(vi) Stomach contained digested food, uterus small in size, urinary bladder empty. Other viscera intact.

The doctor opined that the death was due to asphyxia and the signs suggest that the cause of death was by throttling. Thus from

Page/4 the aforesaid medical evidence, it is clear that the deceased died a homicidal death, which comes within the definition of murder.

12. Now the question is whether there are sufficient evidence to conclude that this appellant has murdered the deceased. As per the FIR, it is this appellant, who had committed the murder of the deceased. The informant of this case has been examined as P.W.1 but she has been declared hostile. Though she had stated that she was the informant and her signature in the fardbeyan was marked as Ext.1 and her statement was recorded under Section 164 Cr.P.C was marked as Ext.-2, but these two documents are not substantive piece of evidence. The substantive piece of evidence is her statement, which was narrated in Court while she was deposing as P.W.1, in which she stated that her statement was not recorded by the police and on the date of occurrence, she and her father went to her paternal aunt's house at Baroda, Chakradharpur. After her mother died, the villagers called them over phone when they returned. In her deposition, she has completely denied that this appellant has committed the murder of the deceased and she had any knowledge about involvement of her father.

13. P.W.2 (Pyare lal Sundi) has also been declared hostile as he stated that he does not know about the occurrence. He also stated that on the date of occurrence, this appellant and her daughter had gone to the house of Jayshree Tamsoy at Borda, Chakradharpur. P.Ws. 4, 5, 6, 7, 8, 9 and 10 have also been declared hostile as they have denied any knowledge about the occurrence and they have not whispered about the involvement of this appellant in this crime. P.W. 11 is the Police Official, who investigated the case. He exhibited the inquest report and he stated that he had gone to the place of occurrence and he has also described the place of occurrence. He further stated that he recorded the fardbeyan of the informant. In cross-examination, he admits that Jayshree Tamsoy was married at Borda, Chakradharpur and it takes 20-25 minutes to reach the said village from the place of occurrence. P.W.12 is another police official who continued the investigation. He stated that he had not arrested Page/5 any accused of this case nor he recorded the confessional statement of any person. He has exhibited some of the documents. P.W. 13 is the Judicial Magistrate, who recorded the statement of the informant under Section 164 Cr.P.C. He exhibited the same which was marked as Ext. P-2/1.

14. A defence witness was also examined in this case, who is Jayshree Tamsoy, the sister of this appellant. She stated that on the date of occurrence, this appellant and his daughter (P.W.1) were in her house at Borda village and she was also present there. The villagers called him and informed about the death of the deceased, when this appellant and his daughter returned, she also stated that at that point of time, she was at Chakradharpur and the police had not cited her as a witness. The statement of the appellant under Section 313 Cr.P.C was recorded. In his statement, he has stated that he was not present in his house. He also stated that he along with his daughter went to Baroda village and after his return, he was arrested.

15. Thus from the evidence, led by the parties, we find that there is no valid evidence against this appellant, which establishes his involvement in the murder of his wife. None of the witnesses has deposed against this appellant, even the informant has also not supported the prosecution case and has been declared hostile. From the evidence, we find that none of the witnesses have stated that this appellant was present in his house or in the village at the time of occurrence.

16. From the impugned judgment, we find that the Trial Court has convicted this appellant without any legal evidence. The Trial court held that though this appellant has stated that he went to village Baroda, but why he went there, has not been explained. We feel that the said explanation is not necessary. It is well settled that it is the prosecution who has to prove its case beyond all reasonable doubt. Non-disclosure a particular reason or particular fact by the accused in the statement under Section 313 Cr.P.C cannot be the ground to convict the appellant. The appellant/accused even has a right to remain silent.

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17. The Trial Court heavily relied upon Section 106 of the Evidence Act to convict this appellant. Section 106 of the Evidence Act can be applied only when the prosecution has been able to independently proved the guilt of the appellant beyond all reasonable doubt based on the evidence. The Hon'ble Supreme Court in the case of Anees vs State Govt. of NCT reported in 2024 SCC OnLine SC 757 had held that unless the prosecution has discharged the onus by proving all the elements to establish the offence, Section 106 of the Evidence Act cannot be invoked. Paragraphs 43, 44 and 50 of the said judgment are quoted here-in-below:

"43. Thus, from the aforesaid decisions of this Court, it is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act.

44. Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused.

50. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding guilt of the accused."

18. In this case, we find that the prosecution has failed to prove its case beyond all reasonable doubt as this case is of no evidence, since all the material witnesses on facts, have been declared hostile and even the specific plea of the defence that the appellant was not

Page/7 present at home at the time of occurrence has also not been disproved. When the prosecution has failed to establish the guilt of the appellant beyond all reasonable doubt independently, section 106 of the Evidence Act cannot be applied. Thus, the Trial Court has wrongly applied Section 106 of the Evidence Act in this case, to convict this appellant.

19. In view of the above discussion, the Judgment of conviction and order of sentence dated 01.03.2024 passed by the learned Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 49 of 2020 is set aside. 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. In view of the judgment passed, I.A. No. 5470 of 2024 is also disposed of.

(ANANDA SEN, J.)

(GAUTAM KUMAR CHOUDHARY, J.)

Jharkhand High Court, Ranchi.

Dated: the 19th September, 2024.

NAFR/Anu-Cp.-3.

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