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Judgment
This Criminal Appeal is preferred on behalf of the appellant being aggrieved by the impugned judgment of conviction dated 11.8.2017 and order of sentence dated 16.8.2017, passed by the learned Additional st, Sessions Judge-1 West Singhbhum at Chaibasa, in S.T. No. 12 of 2014, whereby and whereunder. the appellant has been convicted for the offences under sections 302 and 201 of IPC and sentenced to undergo imprisonment for life with fine of Rs. 10,000/- for the offence under section 302 IPC. He has further been sentenced to undergo imprisonment for 3 years with fine of Rs. 2,000/- for the offence under section 201 IPC and in default of payment of fine further sentenced to undergo S.I. for six months and both the sentences were directed to run concurrently.
We have heard the learned counsel appearing on behalf of the appellant and the learned counsel appearing on behalf of the State.
The learned counsel appearing on behalf of the appellant has submitted that house wherein the dead body of the deceased was recovered has not been proved. It is further submitted that total seven witnesses have been examined on behalf of the prosecution, out of whom, P.W. Nos. 1 to 4 have been declared hostile. The appellant is in custody since 13.6.2013.
The learned counsel for the State has defended the impugned judgment and submitted that there is sufficient evidence to prove that the appellant was fully involved in the alleged offence.
The prosecution case, in brief, as per bard-beyan of the informant Dhaniram Singh (PW-6) who is the brother of the deceased that on 13.6.2013 at about 07:00 a.m. he received information from village Munda, namely, Laxman Munda (PW-3) that his sister has been murdered by the appellant. He stated that his sister was earlier married but due to death of her 1st husband she developed intimacy with the appellant, as a result of which, she became pregnant and was carrying five months pregnancy. The village Munda sent her to the house of the appellant so that he may keep her. It is further stated that as per village Munda the appellant had committed murder of the deceased and concealed her body in his house. Hence, Goilkera P.S. Case no. 18 of 2013 dated 13.06.2013 was registered.
Thereafter, investigation was carried out and after completion of investigation charge-sheet was submitted under sections 302 and 201 IPC. Cognizance was taken and charges were framed under the same sections.
The prosecution, in order to prove its case, has examined altogether seven witnesses, out of whom, PW-1-Nagendra Soy, PW-2 Sukhdev Tirkey, PW-3 Laxman Munda and PW-4 Liba Mundari @ Liba Soy have been declared hostile by the prosecution
PW-5 is Dr. Mrityunjay Kumar has conducted post-mortem over the dead-body of the deceased and found following injuries:
On Dissection:-
(i)Head and neck- fracture and dislocation of cervical vertebra at C-4-C-5, cervical bone fracture with loss of tracheal rings.
(ii)Thorax-Hear chamber blood present. Lung-Pale
(iv)Stomach- Partially digested food particle present. .
Cause of death:- Asphyxia due to fracture of C4-C5 cervical vertebra with damage of tracheal ring, sufficient to cause death.
Weapon used:- Hard and blunt substance.
The post-mortem report has been marked as Ext. 3.
The doctor has opined that above mentioned injuries are sufficient in ordinary course of nature to cause death and it may be caused by strangulation. The doctor has not found any evidence of pregnancy but as per FIR she was carrying five months pregnancy. Neither any witness has stated about pregnancy nor it is a case that thereafter pregnancy was terminated.
The informant (PW-6) has fully supported the contents of the FIR lodged by him.
PW-7 Dhaneshwar Ram is the Investigating Officer of the case who deposed that on 13.6.2013 Laxman Munda who was the Village Munda of Undunda village came and informed him that Subhash Soy has committed murder of his second wife Phulmani Soy on 09.06.2013 at night after pressing her neck and hid her dead-body in his house. On getting this information, Station Diary Entry No. 234 dated 13.6.2013 was made and for verification he went to the place of occurrence. He further deposed that in the village he recorded the fard-beyan of the informant and thereafter FIR was lodged.
From the deposition of the investigation officer it is clear that firstly information about the incident was given to him by Village Munda and thereafter FIR was lodged by the informant but surprisingly, neither the said Village Munda nor the Station Diary Entry was produced before the Court. Thus, contents of FIR are not the statement of informant rather it is the statement of Laxman Munda who was the Village Munda and, hence, it is hit by section 162 of Cr.P.C.
The only question remains is finding of the dead-body in the house of the appellant which is not sufficient to hold the conviction of the appellant in this case.
In the facts and circumstances of the case the conviction of the appellant under sections 302 and 201 of IPC vide judgment dated 11.8.2017 and the order of sentence of imprisonment for life with fine of Rs. 10,000/-under section 302 IPC and imprisonment of 3 years with fine of Rs. 2,000/-for the offence under section 201 IPC dated 16.8.2017 passed by the learned Additional Sessions Judge-1st, West Singhbhum at Chaibasa in S.T. No.12 of 2014 are set-aside.
The instant Criminal Appeal is allowed.
The Court directs the above-named appellant to be released forthwith from custody, if not required in any other case.
Pending Interlocutory Application(s), if any, stand disposed of.
Let Lower Court Records be sent to the learned court below.