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2020 Supreme(Jhk) 966
IN THE HIGH COURT OF JHARKHAND AT RANCHI
SHREE CHANDRASHEKHAR, RATNAKER BHENGRA, JJ.
Nepali Behra – Appellant
Versus
The State of Jharkhand – Respondent
Criminal Appeal (DB) No. 373 of 2013
Decided On : 19-10-2020
Advocate Appeared:
For the Appellant : Mr. Rajendra Prasad Gupta.
For the Respondent: Mrs. Nehala Sharmin.
Headnote:
Code of Criminal Procedure, 1973 – Section 313 – Indian Evidence Act – Section 106 – Indian Penal Code, 1860 – Section 34, 302 – Criminal Conspiracy – Case of prosecution is that Sabita Behra was married to Nepali Behra in year 2010. – Nepali Behra had illicit relationship with his elder sister-in-law (bhabhi) and that was reason about six months after marriage appellant started quarrelling with his wife. – In night of 23.06.2011 there was fight between them and appellant killed Sabita Behra by strangulation. – Dead-body of Sabita Devi was found in her matrimonial home and doctor who has conducted autopsy has rendered an opinion that death was caused due to compression and breaking of tracheal tube. – Sessions Judge has held that prosecution has failed to prove that death of Sabita Behra has been caused in furtherance of criminal conspiracy between Nepali Behra and Manju Behra however, from prosecution evidence it is proved that there was a quarrel between husband and wife in night and next day morning dead-body of Sabita Behra has been found in her matrimonial home, still, appellant had failed to explain incriminating circumstance when he was examined in Court and therefore, chain of circumstance is proved. – Held, None of prosecution witnesses has come to Court to say that he has found any scratch mark on face, neck and hand of appellant which generally would be found on person of assailant when one tries to strangulate a person victim would try to resist and in process a assaulter would suffer some injuries on his face, neck and hand. – Prosecution has failed to establish even foundation of its case and motive behind Crime has not been found proved. – Co-accused has been acquitted by Sessions Judge and there is no material on record to infer illicit relationship between appellant and Manju Behra. – Even assuming that relationship between appellant and his wife was not good that by itself is not a sufficient circumstance to hold that appellant has committed murder of his wife. – Court find that prosecution has failed to prove circumstances which would implicate appellant in this case for causing murder of his wife and chain of circumstances is not complete. – Court hold that prosecution has failed to prove charge of murder against appellant and therefore, his conviction in S.T. Case under Section 302 is set-aside. – Judgment of conviction of appellant, namely Nepali Behra under section 302 IPC and order of sentence of RI for life and fine of Rs. 2,000/- for said offence passed by Additional Sessions Judge, in S.T. Case are set-aside. – Criminal Appeal Allowed
JUDGMENT :
SHREE CHANDRASHEKHAR, J.
1. In S.T. Case No. 74 of 2012 the appellant has been convicted and sentenced to RI for life and a fine of Rs. 2,000/- under Section 302 of the Indian Penal Code (in short IPC) with a default stipulation to undergo SI for three months in default of payment of fine.
2. In the morning of 24.06.2011 Ramanand Behra received an information from Shibu Master that Nepali Behra and Manju Behra have committed murder of Sabita Behra. On the basis of his fardbeyan which was recorded at 13:00 hours the same day, Hat Gamharia P.S. Case No. 17 of 2011 has been lodged under Section 302/34 IPC against Nepali Behra and Manju Behra. They have faced the trial on the charge of committing murder of Sabita Behra in furtherance of criminal conspiracy. During the trial the prosecution has examined eight witnesses out of whom PW-1 and PW-4 are closely related to the appellant and the deceased. PW-2 PW-3 and PW-5 are co-villagers of the appellant and PW-7 and PW-8 are the Investigating Officers.
3. The case of the prosecution is that Sabita Behra was married to Nepali Behra in the year 2010. Nepali Behra had illicit relationship with his elder sister-in-law (bhabhi) and that was the reason about six months after the marriage the appellant started quarrelling with his wife. In the night of 23.06.2011 there was fight between them and the appellant killed Sabita Behra by strangulation. The dead-body of Sabita Devi was found in her matrimonial home and the doctor who has conducted the autopsy has rendered an opinion that the death was caused due to compression and breaking of tracheal tube.
4. The learned Sessions Judge has held that the prosecution has failed to prove that death of Sabita Behra has been caused in furtherance of criminal conspiracy between Nepali Behra and Manju Behra however, from the prosecution evidence it is proved that there was a quarrel between husband and wife in the night and next day morning dead-body of Sabita Behra has been found in her matrimonial home, still, the appellant Nepali Behra had failed to explain the incriminating circumstance when he was examined in the Court and therefore, the chain of circumstance is proved.
5. The prosecution has based its case against the appellant on circumstantial evidence. According to the prosecution Nepali Behra had a motive to kill his wife the constant quarrel between the couple has been proved. Sabita Behra has met with homicidal death in her matrimonial home and the accused has failed to offer a plausible and acceptable explanation to cause of death of his wife. In a case based on circumstantial evidence an inference of guilt can be justified only when all the circumstances are found to be incompatible with innocence of the accused and the circumstance from which an inference of guilt are drawn must be proved beyond reasonable doubt. In Anjan Kumar Sarma vs. State of Assam, (2017) 14 SCC 359, the Hon'ble Supreme Court has discussed the factors to be taken into account in adjudication of the cases of circumstantial evidence, thus:
“14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are:
(1) The circumstances from which the conclusion of guilt to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established.
(2) The facts so established should he consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency.
(4) They should exclude every possible hypothesis except the one to be proved.
(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
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