1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal (Jail) Appeal (DB) No. 1869 of 2004 (Against the Judgment of conviction and Order of sentence dated 29.09.2004, passed by the Sessions Judge, Simdega in Sessions Trial Case No.60 of 2004.) ------- Jalsu Rautiya ….. … Appellant Versus State of Jharkhand .…. … Respondent -------- For the Appellant : Mrs. Rashmi Kumar, Advocate For the State : Mr. Arun Kr. Pandey, Addl. P.P. -------- PRESENT HON’BLE MR. JUSTICE H. C. MISHRA HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------- CAV on 27.11.2017 Pronounced on :
18. 12.2017 Anil Kumar Choudhary, J.- In this appeal, the sole appellant is aggrieved by the judgment of conviction and order of sentence dated 29.09.2004 passed by the Sessions Judge, Simdega in Sessions Trial Case No.60 of 2004 corresponding to G.R. Case No.42 of 2004 whereby and whereunder, the appellant has been found guilty and convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the offence punishable under Section 302 I.P.C. and rigorous imprisonment for five years for the offence punishable under section 201 I.P.C. Both the sentences were ordered to run concurrently.
2. The case of the prosecution in brief is that the informant Rohit Ranjan Prasad, who is the son of the deceased Shyam Prasad, had stated before the Police in his fardbeyan that the deceased engaged the son of the accused-appellant as a servant in his house eight days prior to the occurrence. On 13.02.2004, the accused-appellant came to the house of the deceased and started talking with the deceased. In course of such talking, the deceased along with the accused- appellant proceeded towards the well. The informant also proceeded towards his field in Langra Toli. The niece of the deceased namely Puppy Kumari (P.W-7) also went out for easing herself. The informant came back at about 11:00 a.m. and came to learn that dead body of his father is in the well. He looked into the well and found that the head of his father was visible inside the well. Some straw were also lying there which were put on fire. 2-4 stones of the well were also found removed. The informant came to learn from his niece-P.W.7 that when the P.W.- 7(niece) came back after easing herself, the accused was in a disturbed condition 2 and told the P.W.-7 that a cow had fallen inside the well. The accused thereafter proceeded towards his house in haste. The accused also took away his son namely Surendra Rautiya (P.W.-6), who was engaged as a servant by the deceased eight days prior to the occurrence. The P.W-7 raised an alarm when she noticed that smoke was coming out from the well on which many persons assembled there and in the meantime the informant also reached there. The informant suspected that the accused has pushed his father (deceased) into the well and stoned him to death and also tried to conceal the evidence by throwing straw and burning the same in the well.
3. On the basis of the fardbeyan of the informant which has been marked as Ext.3, Simdega P.S. Case No.13 of 2004 was instituted for the offence punishable under Sections 302/201 of the Indian Penal Code against the accused person and investigation was taken up. Upon completion of investigation, police submitted charge sheet against the accused person. Upon commitment of the case to the Court of Session, charge was framed against the accused-appellant Jalsu Rautiya for the offence punishable under Section 302 of the Indian Penal Code for having committed the murder of the deceased and also for the offence punishable under Section 201 of the Indian Penal Code for causing disappearance of the evidence of murder by throwing straw in the well and concealing the dead body with the intention of screening himself from legal punishment. Upon the accused-appellant pleading not guilty and claiming to be tried, he was put on trial.
4. In course of trial, the prosecution has altogether examined nine witnesses in this case including the Investigating Officer and the Doctor who conducted the post-mortem examination on the dead body of the deceased. P.W.8-Rohit Ranjan Prasad @ Butul is the informant of the case. He has stated that on 13.02.2004 he had tea with the deceased between 7.00-7:30 A.M. The accused-Jalsu Rautiya came to his house and asked for Rs.500/-. The P.W.-8 expressed his inability to pay Rs.500/- to the accused but even then the accused insisted for Rs.500/- for five times. Thereafter, the P.W-8 (informant) went to his field. The accused- appellant thereafter followed the P.W.-8 (informant) and went out from the house of P.W.-8 (informant) and went near the deceased, who was sitting on the well. On his way back to his house, the P.W-8 (informant) came to know from somebody that his father has been pushed into the well by somebody. He straightway came to his house and reached his house at about 11:00 A.M.. After parking his motorcycle, he straightway went to the well. He saw the head of his deceased father inside the well. The P.W.-8 (informant) started crying after seeing the head of the dead body of his father. On hearing the noise of crying of the P.W.8 the villagers, P.W.7(Amisha @ Puppy Kumari) and her father also came 3 there. The P.W.7 told PW8 that while she was returning after easing herself, she saw the accused-Jalsu Rautiya near the well. The accused thereafter came to the house of the P.W.8 and asked for tobacco (Khaini) from the P.W.-7. PW7 also told PW8 that at that time, the accused was in a perturbed state and when the P.W.7 asked the accused as to why he was perturbed, the accused told the P.W.7 that the bull has fallen in the well. The P.W.7 also told PW8 that when she inquired from the accused about the whereabouts of the deceased, the accused was further perturbed and confessed before P.W.7 that the accused has pushed the deceased in the well and murdered him by assaulting him with stone. At about 4.00-5.00 p.m. police arrived at the place of occurrence and recorded the fardbeyan of the P.W.8. PW8 identified the accused who was present in the court. In his cross-examination he has stated that when the accused asked money from him, the P.W.7 was also there. The well is at a distance of 25 to 30 steps from his house. The well is an old one. The only suggestion given to him in his cross- examination was that he has no knowledge about the occurrence and he has stated hearsay matter in the F.I.R. to which he denied. It is pertinent to mention here that there is no cross-examination of the P.W.8 about his previous statement made before police or the contents of his fardbeyan or for that matter about any improvement made by him from his earlier statement before police or as mentioned in his fardbeyan.
5. P.W.7-Kumari Amisha @ Puppy Kumari deposed that on 13.02.2004 the occurrence took place. As there was an occurrence of theft in her house, she and her father used to live in the house of the deceased about one month prior to the occurrence. On that day between 8.00-8:30 A.M. the accused-appellant came to the house of the deceased. She identified the accused who was present in the court. The accused-appellant asked for Rs.500/- from the PW8 but the P.W.8 expressed his inability to pay money to the accused-appellant. Thereafter the P.W.8 left. After the P.W.8 left, the accused asked money from the deceased and the deceased and the accused together went out from the house of the deceased and they sat together near the well. The P.W.7 heard that the accused was asking money from the deceased there also. When she returned after easing herself, she saw the accused alone near the well. The deceased was not there. Then she went to the house of the deceased and had her breakfast. At about 10:00 a.m., the accused came to her house and asked for Tobacco (Khaini) and at that time the accused was in a perturbed state. When the P.W.7 asked from the accused the reason of his being perturbed, the accused told the P.W.7 that a cow has fell down in the well near their house. When the P.W.7 asked from the accused as to how a cow fell down in the well, the accused told the P.W.7 that the cow was running 4 and thus fell down in the well. When the P.W.7 inquired about the deceased the accused confessed before the P.W.7 that he has murdered the deceased by pushing him into the well and assaulting him with stone. Thereafter, the accused fled away from the place of occurrence. Out of fear, the P.W.7 also entered inside the house. After 5-7 minutes she came out from the house and peeped into the well and she found smoke coming out from the well but she could not see anything. Then, P.W.7 went to the shop of her father about three kilometers away by a bicycle and informed the matter to her father and both P.W.7 and her father came near the well. By that time, many people were present near the well. The head of the deceased was visible inside the well. Then the police came to the place of occurrence and got the dead body of the deceased retrieved from the well. In her cross-examination, she stated that there was no hot exchange of words between the deceased and the accused in connection with demand of money by the accused. When she returned after easing herself she did not find anything lying near the well. When the accused told her that he has murdered the deceased there was no one else at that time. It is pertinent to mention here that the testimony of P.W.7 remains unchallenged by the defence. There is no denial suggestion given to her nor there is any cross examination on any material part of her testimony.
6. P.W.6-Surendra Rautiya is the son of the accused person. In his testimony, he has stated that on 13.02.2004 he was working as a shepherd in the house of the deceased-Shyam Prasad. He went towards the pond for grazing the cattle of the deceased. The accused came to the place where he (P.W.6) was grazing the cattle at about 7:00 a.m. and after giving new towel to him the accused went away from there. Thereafter, P.W.6 saw that his father-the accused was taking straw from the thrashing field (Khaliyan) of the deceased-Shyam Prasad. After two hours of the incident of taking straw from the thrashing field, the accused came near the P.W.6 where the cattle were grazing and told the P.W.6 to take back the cattle and go to their home. The P.W.6 took all the cattle and tied them in the house of the deceased. The accused accompanied the P.W.6 from there to the house of the deceased. The accused-appellant took all the clothes of the P.W.6 from the house of the deceased. The P.W.6 told the accused that he will finish the breakfast and thereafter he will accompany the accused to their house but the accused did not allow the P.W.6 to have his breakfast. When the P.W.6 went back to the house of the deceased with the cattle the deceased was not present in his house. Thereafter, the P.W.6 went to his house in the bicycle with the accused. On the way, the accused told the P.W.6 that he has committed the wrong on that day. PW-6 identified the accused in the court. At about 3:00 p.m., the son of the deceased 5 and others came on motorcycle to his house and took him to the house of the deceased. The P.W.6 saw the dead body of the deceased inside the well which is situated near the house of the deceased and straw were also burning inside the well. The P.W.6 was engaged as a servant by the deceased nine days prior to the occurrence. The accused was paid Rs.500/- in advance in this respect. In his cross-examination, the P.W.6 has stated that the pond is at a distance of one kilometer from the house of the deceased. He did not see towards which direction the accused went after taking the straw from the thrashing field. On the way back to their house the accused only told that he has committed wrong on that day and did not tell anything more. The P.W.6 further stated that he was not examined by the police nor he gave any statement. It is pertinent to mention here that there was no cross-examination of the PW-6 in respect of any material portion of his testimony.
7. P.W.1- Karmu Manjhi has stated that on 13.02.2004 at about 8:30 a.m., he saw the accused sitting along with the deceased near the well. The deceased sent him and P.W.3-Aklu Manjhi to go for fencing the boundary which was at a distance of half kilometre from the place of occurrence. In the afternoon, when P.W.1 again came from his house he came to know that Shyam Prasad has been murdered and his dead body is in the well. He saw that straw was burnt inside the well and head of the deceased was visible from the surface of the water of the well. Police came to the place of occurrence and in presence of P.W.1 retrieved the dead body of the deceased from the well. On the next day of the occurrence, police came with the accused at about 11:00 a.m.-12:00 noon. The accused told police that he had pushed the deceased into the well and after he fell down inside the well, the accused assaulted the deceased with stone. After such assaulting, the accused burnt straw. The police engaged the P.W.1 and P.W.3-Aklu Manjhi to take out the stones. First water from the well was drained out by using the water pump and thereafter three stones were recovered from the well. Police showed the stones to the accused who admitted that he assaulted the deceased with those stones. Police seized the stones in presence of P.W.1 and prepared the seizure list. P.W.1 has signed on the seizure list and his signature on the seizure list has been marked as Ext.1. In his cross-examination, he has stated that the seized stones were not available in the court on the date of his examination. Police seized three stones. Before signing on the seizure-list he did not read the contents thereof. It is pertinent to mention here that the testimony of P.W.1 has not been challenged in his cross-examination. There is absolutely no cross-examination on the point that the P.W.1 saw the deceased with the accused person sitting near the well or that the accused led to discovery of the three stones used by him to assault the 6 deceased which were recovered from the well and was used by the accused to assault the deceased after the accused pushed the deceased inside the well.
8. Like P.W.1, P.W.3-Aklu Manjhi has also stated about seeing the deceased with the accused sitting near the well. P.W.3 was also engaged in fencing the boundary. At about 12:00 noon-1:00 p.m. he came to know that the accused has pushed the deceased inside the well and murdered the deceased and after putting straws had set fire to the same. He also saw the head of the deceased inside the well. Police came and retrieved the dead body of the deceased from the well. On the second day of the occurrence police came with the accused to the place of occurrence. The accused disclosed that he murdered the deceased by pushing him into the well and assaulted him with stone and after that by putting straw he set fire to the same. Like P.W.1, the P.W.3 has also stated about the recovery of the stones after the accused informed about the same to police. The P.W.3 signed on the seizure-list. His signature on the seizure-list has been marked as Ext.1/1. In his cross-examination, the P.W.3 has stated that the stones are not available in the court on the date of his examination in court. He was only the seizure witness. Though the P.W.3 in his testimony stated that he saw the deceased with the accused near the well and that on being disclosed by the accused the stones by which he assaulted the deceased was recovered but the same has not been challenged in his cross-examination.
9. P.W.4-Sanjay Kumar Baraik is a witness of inquest of the dead body of the deceased. He has identified his signature on the inquest report of the dead body of the deceased. Similarly, P.W.5 is also a witness of inquest of the dead body of the deceased and he has also identified his signature on the inquest report of the dead body. Nothing significant has been elicited in the cross-examination of either P.W.4 or P.W.5.
10. P.W.2 Dr. Krishna Deo Choudhary, conducted the post-mortem examination on the dead body of the deceased-Shyam Prasad on 14.02.2004 at about 8:35 a.m. and found following external injury:- (i) Lacerated injury 1 ½''x1''x scalp deep, triangular in shape over the right side of forehead with fracture of underline bone. (ii) Lacerated injury 1 ½''x ½''x whole thickness of left upper lip. (iii) Lacerated injury ¾''x ½'' x scalp deep over the right parietal region of the head. (iv) Lacerated injury 2 ½'' x 1½'' x 1½'' over the dorsal surface of right wrist with fracture of both radius and ulna both. In his opinion, the death was caused due to combined effect of the head injury and drowning in water. He also stated that the post-mortem report is in his 7 pen and signature, which on being proved by him has been marked as Ext.2. In his cross-examination, he has stated that such type of injuries may be caused if one accidentally falls in the well.
11. P.W.9- Ratan Kumar Singh, is the Investigating Officer of the case. He has stated that on 13.02.2004 after receiving rumors about the occurrence he entered Sanha No.226 on 13.02.2004 and proceeded to the place of occurrence with armed forces. At 17:00 hours, he reached the place of occurrence and recorded the fardbeyan of the P.W.8. On being proved by him, the fardbeyan has been marked as Ext.3. After recording the fardbeyan, he took up the investigation of the case. He prepared the inquest report of the dead body which on being proved has been marked Ext.4. He got retrieved the dead body of the deceased from the well. He has again stated that after preparing the inquest report of the dead body he sent the dead body for the post-mortem to the Sub-divisional Hospital, Simdega. P.W.9 thereafter recorded the re-statement of the accused person. He has described the place of occurrence in detail including the boundaries. Thereafter he also recorded the statement of the witnesses and with their help arrested the accused. On the next day, he came to the place of occurrence with the accused and recorded the statement of other witnesses. On second day of the occurrence at the place of occurrence, the accused confessed his guilt in presence of villagers. On being proved by the P.W. -9, the confessional statement of the accused has been marked as Ext.5. As per the confessional statement of the accused, three stones boulders by which the accused murdered the deceased were recovered from the well. P.W.9 seized the three stone boulders and prepared the seizure-list and the three boulders on being produced by him in court have been marked as material Exhibit I, I/1 and I/2. In his cross-examination the P.W.9 has stated that the well was an old one. In the cross examination of the P.W.9 no question was put to him regarding any improvement made by any witness in their testimony in court vis-à-vis their statement recorded by the P.W.9.
12. The statement of the accused were recorded under Section 313 of the Cr.P.C. wherein, the accused denied the evidence against him and on being asked whether he wants to say anything in his defence, he stated that on the day of occurrence while he was returning from the Bazar (Village Market), he was assaulted and that he has not committed any wrong. No witness however has been examined on behalf of the defence in this case. On the basis of the evidence on record, the appellant has been found guilty, convicted and sentenced for the offences as aforesaid.
13. At the time of hearing, it was submitted by the learned counsel for the appellant that the impugned judgment of conviction and order of sentence are absolutely 8 illegal and cannot be sustained in law. It was further submitted that the P.W.7- Kumari Amisha @ Puppy Kumari has improved her testimony from the case made out by the informant in the First Information Report. It was also submitted that the appellant has falsely been implicated in this case as no motive for murder has been put forth by the prosecution. It is further submitted by the learned counsel for the appellant that the extra-judicial confession of the accused- appellant attempted to have been proved by the prosecution through the P.W.7 and P.W.6 is of very weak type of evidence and requires appreciation with a great deal of care and caution. In support of her contention, the learned counsel for the appellant has relied upon the judgment of Hon'ble Supreme Court of India in the case of Sahadevan & Anr. Vs. State of Tamil Nadu reported in [2012 (3) East Cr. C23(SC)] wherein the Hon'ble the Supreme Court of India has laid down the principle of extra-judicial confession as under :- “The Principles (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” It is further submitted by the learned counsel for the appellant that the extra-judicial confession of the accused-appellant having inherent improbabilities, the learned Session Judge erred in holding him guilty and convicting for the offence punishable under Section 302 of the Indian Penal Code hence, the conviction and sentence of the accused-appellant be set aside, and accused- appellant be acquitted of the charge by giving him at least the benefit of doubt.
14. Learned Additional Public Prosecutor appearing on behalf of the State on the other hand opposed the prayer for acquittal of the appellant and defended the impugned judgment of conviction and order of sentence. It is further submitted by the learned Addl. P.P. that this is not a case of conviction based solely on the extra-judicial confession of the accused-appellant rather it is a case of circumstantial evidence besides extra-judicial confession of the accused- appellant. The learned Additional Public Prosecutor submitted that besides extra- judicial confession, the evidence on record has established the following circumstances beyond reasonable doubt:- 9 (i) The accused-appellant was last seen near the place of occurrence with the deceased immediately before the alleged occurrence and was seen alone sometime thereafter near the place of occurrence in a perturbed state. (ii) The accused-appellant was a demanding Rs. 500/- by from the deceased as well as PW8 which was not paid to him. (iii) The accused-appellant was seen by his own son -PW6 of taking straw from the thrashing field (Khaliyan) at about the time of the occurrence. (iv) The accused took away his son from the house of the deceased hurriedly with all his clothes and also admitted before his son-P.W.-6 that he has committed mistake on that day. (v) The accused also made confession before the villagers of his guilt on the basis of which the stones by which he assaulted the deceased, was recovered from the place of occurrence well. (vi) During the trial the accused-appellant failed to explain the incidents that happened during the period he was last seen with the deceased near the place of occurrence well and he was seen alone there, about which the accused-appellant had exclusive knowledge. It is further submitted by the learned Additional Public Prosecutor that there is absolutely no cross-examination on any aspect of any of the main witnesses of the prosecution i.e., the P.W. 7, P.W. 8 or P.W. 6 of the case. Similarly, there is no cross-examination on any material aspect of the deposition of the I.O.-P.W.
9. It is further submitted by the learned Additional Public Prosecutor that the testimony of the witnesses that the deceased was last seen with the accused- appellant near the place of occurrence just before the occurrence having not been challenged. It was also submitted by the Additional Public Prosecutor that it was incumbent upon the accused-appellant to explain the circumstances as to what happened after he was last seen with the deceased but having not done that becomes another link in the chain of circumstances to convict and sentence the accused-appellant. It was also submitted that the testimony of the prosecution witnesses have not been seriously challenged by the defence. The testimonies of the prosecution witnesses are trustworthy and the same have not been shaken in any manner hence, it is submitted that the accused-appellant has rightly been convicted and sentenced. It is further submitted by the learned Additional Public Prosecutor that this appeal being devoid of any merit be dismissed.
15. Having heard learned counsel for both the parties and upon going through the evidence on record as already indicated above, I find that as already mentioned above there is no cross-examination on any material part of the 10 statement made by P.W.7, P.W.8, P.W.6, P.W.9 or the other witnesses in their examination in chief.
16. It is settled principle of law that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue and without this, it is not possible to impeach his credibility. The Hon'ble Supreme Court in the case of Laxmibai (Dead) Thr. LRs. & Anr. vs. Bhagwantbuva (Dead) Thr. LRs. & Ors. reported in AIR2013(SC) 1204 in para-31 in this respect held as under :-
“31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR1994SC226: (1993 AIR SCW3675; State of U.P. v. Nahar Singh (dead) & Ors., AIR1998SC1328: (1998 AIR SCW1200; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR2001SC3207: (2001 AIR SCW3042; and Sunil Kumar & Anr. v. State of Rajasthan, AIR2005SC1096 : (2005 AIR SCW589.”(Emphasis given by me) 17. It is pertinent to mention here that there are instances galore where the Hon'ble Supreme Court of India has held that in the absence of cross-examination of a witness, the evidence of such witness remains unchallenged and ought to be believed. In the case of State of U.P v. Nahar Singh (AIR1998SC1328 the Hon’ble Supreme Court of India in paragraph no. 13 and 14 held as under :
“13. It may be noted here that that part of the statement of PW-1 was not cross-examined by the accused. In the absence of cross- examination on the explanation of delay, the evidence of PW-1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite 11 party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned : (1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
14. The oft quoted observation of Lord Herschell, L.C. in Browne v. Dunn, (1893) 6 The Reports 67, clearly elucidates the principle underlying those provisions. It reads thus: “I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses.” This aspect was unfortunately missed by the High Court when it came to the conclusion that explanation for the delay is not at all convincing. This reason is, therefore, far from convincing.”(Emphasis given by me) Similarly in the case of Sunil Kumar and another v. State of Rajasthan (AIR2005SC1096 the Hon’ble Supreme Court observed in paragraph 13 of the judgment as under:-
“13. … … … … … … … … … … … … … … … … … … … … Additionally, no question was asked to the investigating officer as to the reason for the delayed dispatch of the FIR. Had this been done, investigating officer could have explained the circumstances. That having not been done, no adverse inference can be drawn.” (Emphasis given by me) 18. Of course in the case of Juwar Singh v. State of M.P. reported in AIR1981(SC) 373 in the facts and circumstances of that case while the defence took 12 the plea that the testimony of the defence witnesses having not been challenged during cross-examination, their testimony should be treated as accepted. The Hon'ble Supreme Court in paragraph -5 observed as under:
“5. The accused examined three defence witnesses and one of them was Pannalal, brother of Gangaram. All of them stated that Gangaram's house was burnt down on the night of November 10, 1970 but that they did not see any of the accused persons at the place and that no one prevented anyone from trying to extinguish the fire as was claimed by P.Ws. 1, 2 and 6. Shri Mulla submitted that D.Ws. 1, 2, and 3 were not subjected to any cross-examination and therefore their evidence should be unhesitatingly accepted. We do not agree with the submission of Shri Mulla. Cross-examination is not the only method of discrediting a witness. If the oral testimony of certain witnesses is contrary to proved facts their evidence might well be discarded on that ground. If their testimony is on the face of it unacceptable. Courts are not bound to accept their testimony merely because there was no cross-examination. ………”(Emphasis given by me) 19. So keeping in view the aforesaid settled principle of law, it can very well be said that the appellant cannot impeach the credibility of P.W.7, P.W.8 or P.W.6 or for that matter the other witnesses of the prosecution because of his failure to challenge any material portion of their testimony in their respective cross- examination and thereby providing them opportunity to explain their statements, on any objection to their such testimony. Hence, in respect of unchallenged portion of the evidence of the prosecution witnesses no adverse inference can be drawn and the same is to be accepted.
20. So far as the contention of the appellant that there is variation and improvement in the testimony of the witnesses in their evidence in the court is concerned, it is a settled principle of law that the First Information Report cannot be used to contradict witnesses other than the maker of the F.I.R. It will be pertinent to refer to paragraph -9 of the judgment of Hon'ble Supreme Court of India in the case of Harendra Nath Mishra & Ors. vs. State of Bihar (2009) 17 SCC542:-
“9. In our view, the law on this point is quite clear. A first information report is not a substantive piece of evidence. At the most, it can be used to corroborate or contradict the informant. A first information report can never be used to contradict other witnesses. Apart from the evidence of the informant PW5 there is also evidence of PWs 1 and 3. The evidence of PWs 1 and 3 is very categorical on this point. Both the courts below have believed it. It is significant to note that it has not been put to these witnesses that they had made any contradictory statement at any other stage. We also do not see any reason to disbelieve the evidence of these witnesses. The evidence given in court by PW5is consistent with the evidence given by PWs 1 and 3. In this view of the matter, the mere fact that in the first information report it has not been so 13 stated does not cast any doubt or destroy the evidence given in court.” (Emphasis given by me) 21. The Hon'ble Supreme Court of India in the case of Ravi Kumar vs. State of Punjab (2005) 9 SCC315has in paragraph- 15 held as under :-
“15. … … … … … … … … … … … … … … It has been held time and again that the FIR is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 161 of the Indian Evidence Act, 1872 (in short the 'Evidence Act') or to contradict him under Section 145 of that Act. It can neither be used as evidence against the maker at the trial if he himself becomes an accused nor to corroborate or contradict other witnesses. It is not the requirement of law that the minutest details be recorded in the FIR lodged immediately after the occurrence. The fact of the state of mental agony of the person making the FIR who generally is the victim himself, if not dead, or the relations or associates of the deceased victim apparently under the shock of the occurrence reported has always to be kept in mind. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed.” (Emphasis given by me) So in view of the aforesaid facts, I have no hesitation in holding that the contents of the F.I.R. cannot be used to impeach the credibility of P.W.7 or P.W.6. Further the omission in mentioning the minute details in the FIR is also to be ignored.
22. So far as the failure of the appellant to disclose the occurrences after he was last seen with the deceased near the place of occurrence which is the well of the house of the deceased, is concerned, it is relevant to refer to the settled principle of law as has been held by the Hon'ble Supreme Court of India in the case of State of Rajasthan Vs. Thakur Singh 2014 3 JLJR (SC) 251 in para-22 and 23 which is as under:-
“22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts.
23. Applying this principle to the facts of the case, since Dhapu Kunwar died an unnatural death in the room occupied by her and Thakur Singh, the cause of the unnatural death was known to Thakur Singh. There is no evidence that anybody else had entered their room or could have entered their room. Thakur Singh did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred nor did he set up any case that some other person entered the room and caused the unnatural death of his wife. The facts relevant to the cause of 14 Dhapu Kunwar’s death being known only to Thakur Singh, yet he chose not to disclose them or to explain them. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that Dhapu Kunwar was murdered by Thakur Singh.” (Emphasis given by me) 23. To the same effect is the judgment of the Hon'ble Supreme Court of India in the case of State of Rajasthan vs. Kashi Ram AIR2007SC144in which case in para-23, the Hon'ble Supreme Court held as under :-
“23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR1960Madras, 218.” (Emphasis given by me) 24. So far as the recovery of the stones from the place of occurrence well at the disclosure made by the accused appellant is concerned, it will not be out of place to refer to the principle of law settled in this respect in the case of Neel Kumar @ Anil Kumar Vs. State of Haryana, reported in (2012) 5 SCC766in which case in para-30, the Hon'ble Supreme Court held as under :-
“30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 Cr.P.C. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him.” (Emphasis given by me) 15 25. So far as the contention of the appellant regarding the circumstances having been not proved perfectly is concerned, it is settled principle of law that some flaws in the evidence is inevitable. The Hon'ble Supreme Court of India in the case of Inder Singh & Anr. vs. State (Delhi Administration) AIR1978SC1091in para-2 is held as under :-
“2. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is urged that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why fake up ? Because the court asks for manufacture to make truth look true ? No, we must be realistic.” (Emphasis given by me) 26. It is also to be kept in mind that a Judge is not only to see that no innocent man is punished but he has also to see that guilty man does not escape, the Hon'ble Supreme Court in the case of State of U.P. Vs. Anil Singh AIR1988SC1988in para-15 has held as under :-
“15. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.” (Emphasis given by me) 27. Now coming to the facts of the case, so far as the testimony of the PW7 is concerned, in view of the absence of any cross examination on any material portion of her testimony and the principles of law discussed above, I have no hesitation in holding that her testimony being unimpeachable and she being a natural witness to the occurrence and that her testimony is neither contrary to any 16 proved facts nor on the face of it unacceptable, inspires confidence and trustworthy hence the same is to accepted. As already mentioned above, the PW7 has deposed about the prosecution case in detail including the extra judicial confession of the accused-appellant.
28. So far as the testimony of the PW6is concerned, the same inspires confidence also because of the fact that he has supported the prosecution case against his interest, in view of the fact that he has his own father to be convicted. In spite of the fact, he has fully supported the prosecution case stating inter alia that he saw his father with the deceased and also saw his father taking straw from the trashing field. PW6 has also stated that his father while returning to their village by a bicycle on the way told him that he has committed a wrong. This division bench while accepting the testimony of a sister against her brother, in Criminal Appeal (DB) No. 1477 of 2007 dated 02.12.2017 used a similar analogy in observing that the evidence of the witness concerned inspires confidence.
29. As already indicated above the evidence of the PW7 and PW6 is corroborated by the other prosecution witnesses as well and the testimony of none of the other prosecution witnesses has in any manner been discredited. Hence the evidence put forth by the prosecution through the oral testimony of its witnesses are to accepted.
30. In view of the discussion made above, we are of the considered view that the evidence in the record put forth by the prosecution as discussed above has established the following facts beyond reasonable doubt; (i) The accused-appellant was last seen near the place of occurrence which is a well nearby the house of the deceased immediately before the alleged occurrence. (ii) the accused appellant was seen alone near the place of occurrence well immediately after the occurrence in a perturbed state and gave a false explanation of his being perturbed by telling that a cow has fallen in the well; (iii) There was a demand of Rs. 500/- by the accused-appellant from the deceased which was not acceded to; (iv) The accused-appellant was taking straw from the thrashing field (Khaliyan); (v) The accused-appellant took away his son, who was engaged as a servant in the house of the deceased hurriedly with all his clothes by not even allowing to have his breakfast and also admitted before his son-P.W.-6, that he has committed mistake on that day; (vi) The accused-appellant led to discovery of the stones by which he assaulted the deceased; 17 (vii) The accused-appellant during the trial failed to explain the incidents that happened during the period when he was last seen with the deceased near the place of occurrence well and he was seen alone there. Besides the aforesaid circumstances there is also evidence in the record that the accused-appellant also made extra-judicial confession before P.W.7 of having committed the murder of the deceased.
31. So far as the contention of the learned amicus curie regarding absence of evidence of motive is concerned, it is a settled principle of law that if motive is not established,it will not weaken the circumstances proved by the prosecution, as has been held by the Hon’ble Supreme court of India in the case of Rajinder Kumar and another v. State of Punjab reported in AIR1966SC1322“….The absence of a motive is also a circumstance which is relevant for assessing the evidence. The circumstances which have been mentioned above as proving the guilt of the accused Rajinder are however not weakened at all by this fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to a certain course of action. This case appears to be one like that.” In the case of Atley v. State of U.P. reported in AIR1955SC807 the Hon’ble Supreme Court of India held as under regarding absence of evidence of motive. “That is true and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion.” In this case as submitted by the Learned Additional Public Prosecutor, that evidence in the record about demand of Rs. 500/- by the accused-appellant from the deceased which was not acceded to, if considered as the motive, then the evidence or the lack of it of a clear cut motive is to be considered in the aforesaid principles of law. After giving anxious consideration of the facts and circumstances we are of considered opinion that the alleged motive for murder no doubt is a weak one but the other circumstances as already mentioned above are so strong that the weak motive put forth by the prosecution is not a factor for which the accused-appellant is to be given the benefit of doubt.
32. Hence, keeping in view that it is not a case of conviction based solely on the extra-judicial confession of the accused-appellant simpliciter, rather it is a case of circumstantial evidence besides extra-judicial confession of the accused- appellant. These facts have been fully proved and are conclusive nature. These facts are consistent only with the hypothesis of the guilt of the accused-appellant 18 and are inconsistent with his innocence. Hence, in my considered view the accused-appellant has rightly been convicted and sentenced for the offence punishable under Section 302 of the Indian Penal Code for committing the murder of the deceased- Shyam Prasad. There is no illegality in the impugned judgment of conviction and order of sentence dated 29.09.2004 passed by the Sessions Judge, Simdega in Sessions Trial Case No.60 of 2004, whereby and whereunder the appellant-Jalsu Rautiya found guilty and convicted and sentenced for the offence punishable under Section 302 of the Indian Penal Code and hence, the said conviction and order of the sentence of the appellant is affirmed and accordingly, this criminal appeal having no merit is dismissed. The appellant is already in custody undergoing the sentence.
33. Before parting with the judgment we must record that we have been given able assistance by Smt. Rashmi Kumar, the learned Amicus Curie appointed by us to defend the appellant in custody. We direct the Secretary, High Court Legal Services Committee to make the payment of prescribed remuneration to her. Let a copy of the judgment be sent to the Secretary, High Court Legal Services Committee, for the needful. (Anil Kumar Choudhary, J.) H.C. Mishra, J.
(H.C. Mishra, J.) High Court of Jharkhand, Ranchi Dated the 18th December, 2017 NAFR/gunjan