Judgment:
1 Criminal Appeal (D.B.) No. 1013 of 2006 Against the judgment of conviction and order of sentence dated 16.5.2006 and 23.5.2006 respectively passed by 1st Additional Sessions Judge, Bermo at Tenughat in Sessions Trial No. 94 of 2003. ----- Karu Mahto, S/o Late Laljee Ram Mahto,R/o Village Nawadih,PO & PS Nawadih, District Bokaro … … Appellant Versus The State of Jharkhand … … Respondent ----- For the Appellant : Mr. Shree Nivas Roy, Advocate For the State : Mr. Hardeo Prasad Singh, A.P.P. ----- PRESENT HON’BLE MR. JUSTICE R. R. PRASAD HON’BLE MR. JUSTICE RAVI NATH VERMA By Court :- This appeal is directed against the judgment of conviction and order of sentence dated 16.5.2006 and 23.5.2006 respectively passed by 1st Additional Sessions Judge, Bermo at Tenughat in Sessions Trial No. 94 of 2003, whereby and whereunder, the appellant on being found guilty for committing murder of Bharat Turi was convicted for the offence punishable under Section 302 of Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. The case, which was initially made out by the prosecution, is that in the night of 4.11.2002 several persons were playing play-cards in the house of Shankar Turi-P.W. 3, father of deceased-Bharat Turi whereas Kailash Mahto-informant (P.W.4) and Bharat Turi-deceased were watching it. At 2:00 O'clock Karu Turi asked Bharat Turi to go to the house of Govind Turi to fetch liquor. Thereupon, Bharat Turi along with Kailash Mahto (P.W.4) went to the house of Govind Turi. There while they were about to enter inside the room, they saw two persons present over there who asked angrily as to who are there. Upon which they left the place and started fleeing from there but they were chased by those two persons and in the way one of them inflicted 'chura' blow over the abdomen of Bharat Turi but the informant could not identify the assailant. Further case, which has been made out, is that the injured anyhow 2 reached to the door of his house and then he was taken to Bokaro General Hospital for treatment, where on the next day i.e. on 5.11.2012, he succumbed to his injuries. In the morning, when Sub Inspector-Ram Iqbal Singh, posted at Nawadih Police Station, came to know about the occurrence, he came to the village and recorded the fard-beyan (Ext. 1/2) of Kailash Mahto (P.W.4) at about 6:30 am, wherein it was stated by Kailash Mahto (P.W.4) about those facts, which have been stated above, and also stated that he did not identify the assailant whose identification can be disclosed by the wife of Govind Turi. On the basis of the fard beyan (Ext. 1/2), a case was registered against two unknown persons under Section 307 of Indian Penal Code and a formal FIR (Ext.
3) was drawn and when the injured died, offence under Section 302 of Indian Penal Code was added to the first information report. During investigation, the Investigating Officer did receive the inquest report which has been proved as Ext.
2. When the statement of Bhukhali Devi (P.W.6) was recorded, she disclosed that it was the appellant who had stabbed the deceased to death when the deceased had come to the house of Bhukhali Devi for taking liquor where the appellant was present from before and the presence of the deceased annoyed the appellant, whereby scuffle took place in between the deceased and the appellant during which course the appellant stabbed the deceased. That closure is also said to have been made by the appellant to P.W. 5-Raju Turi. After completion of the investigation, when the Investigating Officer submitted charge-sheet against the appellant, cognizance of the offence, as aforesaid, was taken and the case was committed to the Court of Sessions where the appellant was put on trial. During trial, the prosecution in order to prove its case examined altogether 10 witnesses. Of them, P.Ws. 1, 2 and 3 namely, Karamchand Turi, Suresh Prasad Turi and Shankar Turi, did testify that after one month of the occurrence, P.W. 6-Bhukhali Devi did disclose to them that it was the appellant who stabbed the deceased to death when he had come to her 3 house. P.W.4-Kailash Mahto is the informant who, at the time of giving fardbeyan, had never claimed to have identified the assailant, did testify that the appellant was the person who had stabbed the deceased to death. P.W. 5-Raju Turi did testify that on 14.12.2002 the appellant did confess before him that while he was in the house of Bhukhali Devi-P.W. 6 with whom there was extra marital relationship and was taking liquor, the deceased came over there which annoyed him whereof scuffle took place in between them during which course, he stabbed the deceased-Bharat Turi to death. P.W. 6 happens to be Bhukhali Devi and her testimony is some what different from the fact what has been disclosed by P.W.
5. According to P.W. 6, while she was in her house, appellant-Karu Mahto was taking liquor in her courtyard where the deceased-Bharat Turi came there to take liquor and then the appellant stabbed him. P.W. 8-Mulkhi Devi, who is the mother of the deceased-Bharat Turi, did testify that she came to know from the deceased that when her son had gone to the house of Govind Turi (husband of P.W.6) for bringing liquor, he was stabbed by the appellant. After closure of the prosecution case, the appellant was questioned under Section 313 of Cr.P.C. about the incriminating circumstances appearing against him to which he denied. The trial court having placed its reliance on the testimonies of P.Ws. 5 and 6 and other witnesses did find the appellant guilty for the offence punishable under Section 302 of Indian Penal Code and accordingly recorded the judgment of conviction and order of sentence against the appellant, which is under challenge. Mr. Shree Nivas Roy, learned counsel appearing for the appellant, submits that admittedly the appellant is not named in the first information report rather his name for the first time got transpired after 40 days of the occurrence, whereby the prosecution has come forward with the case that when the deceased had gone to the house of Govind Turi for taking liquor, he did find this appellant present over there with whom there had been scuffle and during which scuffle, the appellant stabbed the deceased but 4 that story developed subsequently cannot be accepted. In this regard, it was submitted that P.W. 6 is the person who has come forward to say that it was the appellant who had killed the deceased but there was no reason on her part to hide this fact either from the informant or to any other persons or to the police at the time of lodging the case or immediately thereafter. Only after 40 days of the occurrence, P.W. 6 has come with the case as aforesaid which appears to be concocted and afterthought and never appears to be in consonance with the case made out by the informant in his fardbeyan and thereby the court should not have relied upon any of the witnesses examined by the prosecution and thereby the order of conviction and sentence is fit to be set aside. As against this, Mr. Hardeo Prasad Singh, learned counsel for the State, submits that it is true that initially the prosecution did come with the case that it was the appellant who had stabbed the deceased to death but there has been no reason to disbelieve the testimony of P.W. 6 in whose house occurrence took place and, therefore, even if she has delayedly made the statement, that cannot be disbelieved. Furthermore, this appellant himself has disclosed about his culpability to Raju Turi-P.W. 5 wherein he has confessed his guilt that he has killed the deceased and, therefore, that extra judicial confession has rightly been acted upon by the trial court in securing conviction of the appellant and, thereby the judgment of conviction and order of sentence passed by the trial court never warrants to be interfered with by this Court. Having heard learned counsel for the parties and on perusal of the records, we do find that the prosecution initially came forward with the case that the deceased-Bharat Turi has been killed by some unknown persons. However, during trial, P.W. 4-informant, P.W. 8-mother of the deceased, P.W. 3-Shankar Turi, father of the deceased, P.W. 2-Suresh Prasad Turi and even P.W. 1-Karamchand Turi came with the plea that they came to know from Bhukhali Devi (P.W.6) that it was the appellant who had killed the deceased but all those witnesses never seem to have made such statements 5 before the police and thereby the testimonies, with respect to the point where they have said that it was the appellant who killed the deceased, cannot be accepted. Coming to the evidence of P.W. 5-Raju Turi, who did testify that on 14.12.2002 the appellant confessed before him that while he was in the house of Bhukhali Devi-P.W. 6 and was having intercourse with the appellant, the deceased-Bharat Turi reached over there, which annoyed him and thereby there was scuffle in between them during which the appellant stabbed the deceased, but such extra judicial confession does not find corroboration from the testimony of P.W. 6, who though has said that there was scuffle in between the deceased and the appellant, but she never says that while she was having intercourse with the appellant, the deceased reached there due to which he was killed. Moreover, there does not appear to be any reason as to why the appellant would disclose the said fact to Raju Turi-P.W.5 that he has killed the deceased. Furthermore, we do find from the testimony of Raju Turi-P.W.5 that the appellant has confessed before him that he had stabbed the deceased in the house of Bhukhali Devi-P.W.6, whereas the prosecution case initially made out is some what different, wherein P.W. 4 in his fardbeyan has stated that when he along with the deceased went to the house of Govind Turi, they found two persons present over there who angrily asked as to who are there and then they chased them and during that course, one of the persons stabbed the deceased to death. Thus, it is apparent that the confession, allegedly made by the appellant before P.W.5, is not in consonance with the case of the prosecution, initially made out. Similar is the situation with P.W.6 who has testified that it was the appellant who committed murder of the deceased, but admittedly P.W. 6 did not disclose that fact initially for about 40 days to anyone nor to the informant nor to the police. There does not appear to be any cogent reason for her to hide that fact. Had there been something in the fardbeyan of P.W. 4 that when he had gone to the house of 6 Govind Turi along with the deceased, they saw Bhukhali Devi in compromising position with the appellant, one can understand that Bhukhali Devi hided everything out of shame, but she in her testimony has categorically said that while the appellant was consuming liquor in her courtyard, the deceased came over there with whom there was scuffle and in that course, the deceased was killed. In that event, natural conduct of P.W.6 would have been to disclose the said fact either to the informant or to any other persons or to the police immediately after the occurrence, but non-disclosure of said fact for such a long time never inspires confidence to be believed. Furthermore, according to Bhukhali Devi-P.W.6, the deceased was stabbed in her house itself, but that piece of evidence never appears to be in consonance with the case, made out by the informant, wherein he had said that when he along with the deceased had gone to the house of Bhukhali Devi, other persons were present over there who angrily asked as to who are there and then he and the deceased fled away from there but those two persons chased them and during that chase, one of the persons inflicted 'chura' injury to the deceased. Under the circumstances, P.Ws. 5 and 6 never appear to be trustworthy. Accordingly, we do find that the trial court committed illegality in recording the order of conviction and sentence against the appellant. Consequently, the judgment of conviction and order of sentence passed against the appellant is hereby set aside. Hence, the appellant is acquitted of the charge levelled against him and is directed to be released forthwith, if not wanted in any other case. In the result, this appeal stands allowed. (R.R. Prasad, J.) (Ravi Nath Verma, J.) Jharkhand High Court, Ranchi Dated the 25th March, 2015 AKT/N.A.F.R.