Rupesh Kumar @ Rupesh Kumar Singh vs The State of Jharkhand

9.08.2006 and Order of sentence dated 25.08.2006, passed by the

Additional Judicial Commissioner­IIIrd, Khunti in Sessions Trial No. 310 of

005, by which this appellant has been convicted for committing offence

punishable under Section 302 of the Indian Penal Code, and thereby,

sentenced him to undergo imprisonment for life.

The prosecution case is based on the fardbeyan of one Rahul

Swansi, recorded on 14.03.2005, wherein he has stated that the deceased

Phoolmani Devi is his own elder aunt. She had three daughters, who are

already married. As she did not have any son, this informant was living

with Phoolmani Devi since one and a half years. On 14.03.2005, in the

afternoon at about 03.00 p.m., deceased Phoolmani Devi was sitting beside

a Tamarind tree where Ghasia Devi was stitching a blanket (Gedra). At that

time, accused/appellant Fase Patar, came there and demanded Rs. 100/­

from the deceased Phoolmani Devi, which was taken by her from him 15­

20 days back. The accused threatened that if the money will not be given

to him, she will be done to death. Phoolmani Devi said that she did not -2-

have any money for the present and as and when she will arrange the

money, she will repay the same. Phoolmani Devi returned to her house and

informed the informant that Fase Patar has threatened her of dire

consequences. The informant then advised Phoolmani Devi not to go

outside, rather to cook food for the guests, who are there in their house.

After taking lunch, the informant and his guests left the house and went

near Kanchi river. They returned about 06.30 p.m. and saw the door of the

house of Phoolmani Devi was open. When he went inside, it was dark. He

lit the light (Dhibri) and saw blood on the floor and saw Phoolmani Devi

lying there. He found that the throat of Phoolmani Devi was slit and there

was no sign of breathing and she was dead. The informant then informed

about the incident to his grandmother, sisters and neighbours, who

immediately reached at the place of occurrence. He stated that on earlier

occasion also Fase Patar had assaulted the deceased. The informant and

others went to search Fase Patar, but he was not found. The informant,

thus, reached to the conclusion that Fase Patar is instrumental in

committing murder of the deceased by slitting her neck.

. On basis of the aforementioned statement of the informant,

Bundu P.S. Case No. 18 of 2005, corresponding to G.R. No. 132 of 2005,

was instituted for offence under Section 302 of the Indian Penal

Code, against the accused and investigation was taken up.

. After completion of investigation, charge sheet was filed against

Fase Patar @ Soma Patar, i.e. the appellant under Sections 452 & 302 of

the Indian Penal Code, finding the case to be true and cognizance was

taken. After complying all the provisions, the case was committed to the

Court of Session for trial, as the offence was exclusively triable by the

Court of Session.

. Charges were framed against the appellant under Sections 352 &

302 of the Indian Penal code, to which appellant pleaded not guilty and

claimed to be tried.

. The prosecution, in order to prove its case, examined altogether

seven prosecution witnesses and also exhibited several documents.

. P.W.­1 is Krishna Swansi, who has stated that the incident had

taken place in the evening when Rahul came and informed him that Soma

Patar has murdered his elder aunt. He went to the place of occurrence and

saw that the throat of the decease Phoolmani Devi was slitted by Baithi. He

further stated that police reached at the place of occurrence and taken the

dead body. He admitted that he had put his thumb impression on the

inquest report. He stated that the police also collected blood stained soil

from the place of occurrence. He stated that the police has also seized

Baithi (a sharp cutting instrument) from the cowshed of the appellant. He

stated that Phoolmani Devi used to give loan to the appellant and when

she demanded money, she was done to death. He identified the appellant.

In cross­examination, he stated that he had not seen the occurrence.

. P.W.­2 is Ghasia Swansi, who has also stated that Rahul had

informed that his elder aunt has been murdered by this appellant. He went

to the place of occurrence and saw the dead body. He stated that the

accused had taken loan from the deceased and when the deceased

demanded her money back, she was murdered. The police came to the

place of occurrence and prepared inquest report. He also admits that he

had put his thumb impression on the seizure list. He also stated that he

had not seen the occurrence.

. P.W.­3 is Somal Swanshi, who has stated that Rahul informed

him that his elder aunt has been murdered as her neck was slitted. He

also stated that Rahul informed him that this appellant has committed

murder of the deceased. He stated that the police seized the blood stained

soil from the place of occurrence. He admitted that he had not seen the

occurrence. He stated that he had given his statement to the police. He

stated the there was mark of injury only on the neck.

. P.W.­4 is Ghasni Devi. She stated that the occurrence is of six

months back and there was some quarrel between Phoolmani Devi and

Soma. She stated that the quarrel was due to some monetary transaction.

She stated that Soma Patar demanded money and Phoolmani Devi was

threatened. She stated that thereafter, she came to know that Soma Patar

had committed the murder of Phoolmani Devi. She stated that she had not

seen the occurrence. She stated that she knows nothing about the

monetary transaction between them. In cross­examination, she has stated

that she had gone for treatment of her daughter thus she is not aware of

the alleged threat.

. P.W.­5 is the informant Rahul Swansi. He stated that near the

Tamarind tree there was quarrel between the deceased and this appellant.

This appellant demanded Rs. 100/­ which the deceased refused to give as

she was not having any money. She told that she will give the money, when

she will arrange it. The appellant then threatened the deceased of dire

consequences. He stated that he was informed about this incident by the

deceased. He stated that thereafter he went near the Kanchi river and

when he returned, he saw the door of the house was open. He went inside

and saw blood and then saw his elder aunt lying dead and her throat was

cut. In para­5 he has stated that when he came out of the house and was

going towards the village, he saw the appellant, who told him that he had

committed murder and now he will finish the entire family. He stated that

thereafter he went to the police station and got his fardbeyan recorded. He

had put his signature on the fardbeyan, which was marked as Ext.­1. He

stated that Krishna Swansi and Ghasia Swansi also had put their thumb

impressions. He identified the accused.

In cross­examination, he stated that he, alongwith his guest went

towards the Kanchi river at about 03.30 p.m. and returned about 06.30

p.m.. He stated that his elder aunt had three daughters and one son. He

gave the description of the boundary of his house. In para­11, he stated

that he had not seen the occurrence of murder as he had gone towards

Kanchi river at that point of time. This witness has stated that the accused

himself has stated that he had committed murder of the deceased and this

appellant has also threatened him. He stated that the police seized the

dead body and the blood from the place of occurrence.

. P.W.­6 is the Officer­in­charge of Bundu Police Station and the

Investigating Officer of this case. He stated that he got a telephonic

message that in the Village one women has been murdered. On receiving

such information, he made a station diary entry and reached at the place

of occurrence. He stated that he recorded the fardbeyan of the informant

Rahul Swansi at the place of occurrence in his pen, which was marked as

Ext.­2. He stated that he recorded the statement of Rahul Swansi and

prepared the inquest report, after obtaining signatures from the witnesses.

He gave description of the place of occurrence. He stated the he arrested

the accused on 15.03.2005 at about 00.30 hours and recorded his

confessional statement and on the basis of the confessional statement,

blood stained Baithi (a sharp cutting instrument) was recovered from the

cowshed of the appellant. He stated that seizure list was prepared, which

bears his signature. Two witnesses had also put their signatures on the

seizure list. Seizure list was marked as Ext.­4. He stated that the dead

body was lying on the ground and the neck was cut. He stated that he

seized the blood stained earth from the place of occurrence. He stated that

he recorded the statement of other witnesses. He found that the accused

was earlier charged under section 302 & 201 of the Indian Penal Code,

being Bundu P.S. Case No. 92 of 1988. He obtained the post mortem report

also and submitted charge sheet under Sections 302 and 452 of the Indian

Penal Code. He stated that the person, who had given the telephonic

message, did not disclose his name. He admitted that neither the blood

stained soil nor the blood stained Baithi (the alleged weapon of murder),

was sent for chemical examination. He stated that the Baithi was also not

sealed. He stated that the blood stained soil and Baithi was taken to the

police station after keeping it in a polythene bag. He denied the suggestion

that the investigation was faulty.

. P.W.­7 is Dr. Ajit Kumar Chaudhary, who conducted the post

mortem examination of the dead body of the deceased and found the

following injuries:­

"Incised wound 8 x 3 cm x bone deep on front part of neck situated transversely with a tailing 2 cm long from right angle of the wound cutting the soft tissue, blood vessels, trachea, oesophagus and its cervical vertebra partially. There was infiltration of blood and blood clot in soft and long tissue at the sight of the injury." As per the opinion of the Doctor, the above mentioned injures

was ante mortem caused by sharp cutting weapon may be by Baithi and

the death was caused due to hemorrhage and shock. The post mortem

report was exhibited as Ext.­5.

. After closure of the evidence of the prosecution, statements of

the accused appellant were recorded under Section 313 of the Code of

Criminal Procedure. The appellant did not produce any witness in defence

as his case is of complete denial.

. The trial court, after hearing the parties and after going through the records of the case, convicted and sentenced the appellant as aforesaid.

. Aggrieved by the said Judgment of conviction and Order of sentence awarded to the appellant, the appellant has preferred this instant appeal.

. Learned amicus curiae appearing on behalf of the appellant has

submitted that admittedly, there is no eyewitness to this case and this case

is based on the circumstantial evidence. He submits that the

circumstances, which have been put forth by the prosecution, are not

strong enough to implicate this appellant in the crime. It is submitted that

the chain of circumstance is not complete and when the chain is

incomplete, conviction of the appellant cannot be sustained. It is submitted

that the entire case revolves around the evidence of the informant P.W.­5,

who is not at all a reliable witness. He submits that there are serious

discrepancies and contradictions in the evidence of the prosecution

witnesses including the evidence of P.W.­5, which is fatal for the

prosecution. It is submitted that the weapon of offence, i.e. Baithi has not

been sent for chemical examination, thus, it cannot be said that the blood

stains, which were on the said Baithi, was of the deceased. It is submitted

that the genesis of the occurrence has also not been proved properly by the

prosecution, which goes to the root of the case. It is submitted that the

prosecution has not been able to prove the charge beyond all reasonable

doubt and thus, the appellant is entitled to be acquitted by giving benefit

of doubt.

. On the other hand, learned APP opposing the argument

advanced on behalf of the appellant, submits that the prosecution has

been able to prove the guilt of the appellant beyond all reasonable doubts.

He submits that the witnesses have categorically stated that just before the

occurrence there was an altercation between the appellant and the

deceased and the appellant had hurled threat to the deceased. It has been

further submitted that the informant­P.W.­5 has stated that it is the

appellant, who has disclosed before him that he has committed the murder

of the deceased. It is also submitted that P.W.­5 saw this appellant near

the place of occurrence just after the occurrence when this appellant has

confessed that he has committed one murder and will finish the entire

family. It is submitted that the weapon of the murder has been recovered

on the confessional statement of this appellant, which makes the chain

complete. Thus, the conviction of the appellant is absolutely justified and

do not suffer from any illegality

. After hearing the parties and on going through the records, we

find that the entire case revolves around the statement of P.W­5.

Admittedly, there is no eyewitness to the occurrence and in fact, P.W­5 is

also not an eyewitness. It is this P.W.­5, who disclosed about the incident

to all the witnesses. The informant (P.W.­5) has stated in the F.I.R., that

the deceased had taken a loan of Rs. 100/­ from the appellant, which the

appellant asked to return, but the deceased did not pay as she was not

having the money. The appellant thus threatened the deceased of dire

consequences. This fact, as per P.W.­5, was narrated by the deceased. In

this respect, it is important to refer to the evidence of P.Ws­ 1 & 2, who

stated that it was the appellant, who had taken money from the deceased

and the deceased was asking the appellant to return her money. Thus,

there is major contradiction on the point as to who had taken money from

whom.

. Further, in the F.I.R., P.W­5 has narrated that the deceased has

three daughters and all of them were married. He is residing with the

deceased as the deceased had no son. This statement is totally

contradicted by this witness himself in Para­10 of his evidence, wherein he

states that the deceased had three daughters and one son.

. This P.W.­5 has stated in his evidence that on seeing the dead

body, when he was going towards the village, he saw this appellant, who

disclosed to him that he had committed the murder and will finish his

entire family. This alleged disclosure by the appellant before this witness is

very important material fact. But surprisingly narration of this fact is

absolutely missing in the F.I.R. This witness has thus developed this fact

in Court while deposing, which was not there in the F.I.R. The Investigating

Officer also has not deposed about such disclosure by this witness during

investigation. So on this point we conclude that this witness has developed

a new fact, which was not there in the prosecution case.

. Further, P.W­5 in his evidence, has stated that just after seeing

the dead body, he left the place and went to the police station where he got

his statement recorded. To examine whether this statement of this witness

is correct or not, we have gone through the FIR and the evidence of the

Investigating Officer. Both of these, contradict the statement of this

witness. The Investigating Officer has deposed that fardbeyan of P.W.­5

was recorded at the place of occurrence because the Investigating Officer

had reached the place of occurrence on receiving a telephonic information,

given by an unknown person, that a murder had taken place in the village.

Whereas the informant P.W.­5 stated that after the occurrence he went to

the police station where he got his fardbeyan recorded in the police station

itself. The F.I.R also clearly suggests that the fardbeyan was recorded at

the place of occurrence, i.e. in the Village. These are major discrepancies

and contradictions in the statement of P.W.­5. This clearly shakes the -10-

character of this witness. This PW­5 is not a reliable witness and canno be

believed upon.

. As discussed earlier, save and except P.W­5 there are no other

witnesses to depose on facts. All other witnesses are hearsay. As per PW­5,

on the date of occurrence some guests were present there in his house, but

surprisingly those guests were not examined by the prosecution in support

of the prosecution case. Even the other relatives of the deceased, who were

in the same village, were also not examined.

. If we discard the evidence of P.W.­5, the only fact which

incriminates the appellant is the recovery of the weapon of the murder, i.e.

the blood stained Baithi from his cowshed. It is admitted by the

Investigating Officer, the blood, which was found on the Baithi, was not

sent for chemical examination. Without chemical examination, it is not

possible to come to the conclusion whether the said blood was human

blood or blood of any animal. Mere recovery of a blood stained weapon, on

the confessional statement of the accused, cannot be a ground to convict

him unless there are other corroborative evidences. In this case, the only

corroboration could have been from the statement of PW­5, but as held

earlier he is not at all a reliable witness. Thus, we can say that there is no

corroboration of any sort to implicate this appellant with this crime.

Further, we find that this circumstance of incriminating piece of evidence,

i.e. recovery of blood stained weapon at the instance of this appellant, was

not put before the appellant while recording his statement under Section

313 Cr.P.C . It is mandatory to put the circumstances appearing in evidence

against the accused while his statement is recorded under Section 313

Cr.P.C . In this case, this circumstance of recovery was not put to him.

Thus, this part of the evidence, adduced by the prosecution, cannot be

used against this appellant.

. In view of the discussions made above, we find that the appellant

is entitled to get benefit of doubt in this case as the prosecution has failed

to prove the guilt of this appellant beyond all reasonable doubt.

Accordingly, the impugned Judgment of conviction dated 19.08.2006 and

Order of sentence dated 25.08.2006, passed by the learned Additional

Judicial Commissioner­IIIrd, Khunti, in Sessions Trial No. 310 of 2005, is

hereby set aside. The appellant is given the benefit of doubt, and he is

acquitted of the charge. The appellant, who is in jail custody, is directed to

be released forthwith if not wanted in any other case.

. Before parting with the Judgment, it is to be noted that Mr.

Hardeo Prasad Singh, learned amicus curiae has very ably assisted this

Special Bench, constituted on Saturday with a view to dispose of old

criminal cases where the appellant is in custody. The Secretary, High

Court Legal Services Committee, is hereby directed to make the payment of

the prescribed remuneration to the learned amicus curiae for his able

assistance. Let a copy of this Judgment be sent to the Secretary, High

Court Legal Services Committee, for the needful

. This appeal is accordingly, allowed. Let the Lower Court Records

be sent back to the Court concerned forthwith, along with the copy of this

Judgment.