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Judgment
This Acquittal Appeal is preferred on behalf of the appellant being aggrieved by the impugned judgment of acquittal dated 20.4.2023 passed by the learned Additional Sessions Judge-III, Jamtara, in S.T. No. 60 of 2020, whereby and whereunder. the respondent Nos. 2 to 7 have been acquitted from the offences under sections 363/34, 364/34, 302/34, 201/34 and 120B IPC.
We have heard the learned counsel appearing on behalf of the appellant and the learned counsel appearing on behalf of the respondents and perused the materials available on record.
The learned counsel appearing on behalf of the appellant has submitted that this case is based on circumstantial evidence and last seen theory. He has further submitted that before marriage there was illicit relationship between the deceased and the daughter of Jageshwar Das and the appellant came to know about the said relationship after her marriage from son-in-law of Jageshwar Das and, thereafter, all of them by hatching a criminal conspiracy killed the deceased. It is further stated that on 12.2.2020 the deceased was last seen with the respondent Nos. 2 to 7 thereafter on 17.2.2020 the dead body of the deceased was found in a well. He has further submitted that eye-witnesses can tell lie but the circumstances cannot tell lie. It is further stated that there must be some discrepancies but that may not be the base of acquittal but the learned trial court only on the basis of said discrepancies acquitted the respondent nos. 2 to 7 which is not judicious.
The learned counsel for the respondents has defended the impugned judgment and submitted that there is no substantive evidence against the respondent nos. 2 to 7. He has further submitted that after four days when the deceased had allegedly been seen with the respondent nos. 2 to 7, he has died and FIR was lodged by the informant only on the basis of suspicion. He has lastly submitted that the learned court below has rightly acquitted the respondent nos. 2 to 7 and, thus, the impugned judgment does not require any interference.
The prosecution case, in brief, as per the informant Pushpa Kumari (PW-3) who is the wife of the deceased Lakshman Das that on 12.2.2020 at about 03:00 p.m. Jageshwar Das and Narayan Das took her husband form the house for withdrawing money from CSP at Devalbadi in Nayadih. She has further alleged that after withdrawal of money elder son-in-law of Jageshwar Das and Gopi Das reached there and all of them consumed tari and after hatching a conspiracy all of them took her husband to some unknown place. She has further stated that she has suspicion that they might have caused some untoward with her husband and hence the present case was registered for the offence under sections 363, 364 and 120B of IPC and after recovery of dead body of deceased charge under sections 302 and 201 were added.
Thereafter, investigation was carried out and after completion of investigation charge-sheet was submitted under sections 363, 364, 120B, 302 and 201 of IPC. Cognizance was taken and charges were framed under the same sections.
The prosecution, in order to prove its case, has examined altogether nine witnesses who are as follows:
PW-1 Santosh Hansda
PW-2 Mohan Mahato
PW-3 Pushpa Kumari
PW-4 Sapna Devi
PW-5 Situ Kumari
PW-6 Dr. Nilesh Kumar
PW-7 Ranjit Ram
PW-8 Gautam Kumar Mandal
PW-9 Narayan Das
Several documents have also been exhibited on behalf of the prosecution.
Defence has not examined any witness in support of its case.
After hearing the learned counsel appearing on behalf of the appellant and the learned counsel appearing on behalf of the respondents and the evidence available on record, we find that this case is based on circumstantial evidence. The Hon’ble Supreme Court has held that if two views are possible one pointing to the guilt of the accused and the other his innocence, the accused is entitled to have the benefit of one which is favourable to him.
The Hon’ble Apex Court in the case of Shivaji Chintappa Patil vs. State of Maharashtra reported in (2021)5 SCC 626 has held as under:
“33.It is more than settled principle of law that if two views are possible, the benefit shall always go to the accused. It will be apposite to refer to the following observations of this Court in Sharad Birdhichand Sarda [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487] : (SCC p. 188, para 163)
“163.We then pass on to another important point which seems to have been completely missed by the High Court. It is well-settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of H.P. [Kali Ram v. State of H.P., (1973) 2 SCC 808 : 1973 SCC (Cri) 1048] , this Court made the following observations : (SCC p. 820, para 25)
‘25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.”
In the case of Devi Lal v. State of Rajasthan reported in (2019) 19 SCC 447 the Hon’ble Apex Court has held as under:
“19.That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same.”
Considering the aforesaid propositions of law we have gone through the entire records and the evidence in details.
The husband of the informant was taken from his house on 12.2.2020 by accused persons, namely, Jageshwar Das and Narayan Das on the pretext that they have to withdraw some money. The deceased accompanied them and thereafter he did not return. The informant thus lodged a case on 16.2.2020. Thereafter, dead-body of the deceased was found in a well on 17.2.2020.
After going through the evidence we find that there is no eye-witness to the occurrence of commission of murder. There is suspicion which has been casted upon these respondents as the deceased had some relationship with the daughter of respondent no. 2, Jageshwar Das who had got married. It is alleged that even thereafter also the deceased was keeping some relationship with her as a result of which husband of the daughter of Jageshwar Das enraged and thereafter they hatched a conspiracy and murdered the deceased.
Since this is a case based on circumstantial evidence thus we have to see the circumstances present in this case. It is stated that there was some relationship between the deceased and the daughter of Jageshwar Das which continued after their marriage as a result of which husband of daughter of Jageshwar Das along with others hatched a conspiracy and committed murder of the deceased.
The motive part has been stated by PW-3 who is wife of the deceased but it is only to that extent. The another circumstance is last seen together.
In this case admittedly PW-1 to PW-3 have seen the deceased in the company of the accused persons on 12.2.2020. They had taken the deceased from his house and they consumed tari together and, thereafter they had gone to a chowmin stall where they eat chowmin together which shows that the deceased was seen in the company of accused persons on 12.2.2020.
PW-6 Dr. Nilesh Kumar had conduced post-mortem examination over the dead body of the deceased and opined that the death has caused due to asphyxia due to throttling and time elapsed since death is 24 to 36 hours. Admittedly, post-mortem was conducted on 17.2.2020 at 3:50 p.m. The death at best has occurred sometime in midnight on 15.2.2020 or in the morning of 16.2.2020. Thus, there is time of 72 hours from the last seen together which has not been explained satisfactorily, though the dead body was found from the well but the death has not been caused by drowning. As per post-mortem report the death has occurred due to throttling which means the death has occurred sometime else and body was thrown in the well, but the doctor in his cross-examination has deposed that he did not find any finger mark on the part of dead-body.
Further conspiracy angle has been posted in this case. It has been submitted by the learned counsel for the appellant that the deceased was having some relationship with the daughter of Jageshwar Das and, therefore, son-in-law of Jageshwar Das hatched a conspiracy with others and killed the husband of the informant.
PW-4 Sapna Devi who is the sister-in-law of the deceased who had seen the deceased going with the accused persons stated in paragraph no.6 of her deposition that she came to know from the villagers that son-in-law of Jageshwar Das and Gopi Das had eaten chowmin along with the deceased at the stall of Mohan Mahto.
PW-2 Mohan Mahto who is a chowmin seller has never taken name of son-in-law of Jageshwar Das to be present in his stall. He only stated that three persons came to eat chowmin. This fact has also not been proved by the prosecution.
In view of the aforesaid discussions, this Court finds that the circumstances are too weak to convict the respondent nos. 2 to 7. Thus, we find no reason to interfere with the judgment of acquittal dated 20.4.2023 passed by the learned Additional Sessions Judge-III, Jamtara in S.T. No. 60 of 2020.
Accordingly, the instant Acquittal Appeal stands dismissed.
Pending Interlocutory Application(s), if any, stand disposed of.