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2021 Supreme(Jhk) 1001
IN THE HIGH COURT OF JHARKHAND AT RANCHI
SHREE CHANDRASHEKHAR, RATNAKER BHENGRA, JJ.
Sushen Modak, son of Raj Kumar Modak @ Jhuna - Appellant
Versus
The State of Jharkhand - Respondent
Criminal Appeal (DB) No. 861 of 2013
Decided on : 22-06-2021
Advocate Appeared:
For the Appellant :Mr. Jai Shankar Tripathi, Advocate
For the Respondent: Mr. Bhola Nath Ojha, APP
The judgment establishes the principle that circumstantial evidence, when cogently and firmly established, can lead to a conviction. It also emphasizes the duty of the accused to provide a plausible explanation for incriminating circumstances.
Headnote:
Murder - Indian Penal Code - Section 302
Fact of the Case:
The appellant was convicted for the murder of his wife, Khusbu Modak, based on circumstantial evidence. The prosecution presented evidence of the appellant's constant quarrels and assaults on his wife due to his drinking and gambling habits. The post-mortem examination indicated that Khusbu Modak was strangulated to death, and the appellant failed to provide a plausible explanation for her death.
Finding of the Court:
The court found the appellant guilty of murder under section 302 of the Indian Penal Code based on the complete chain of circumstances presented by the prosecution. The court dismissed the appellant's plea and upheld the conviction.
Issues: The issues revolved around the sufficiency of circumstantial evidence to prove the appellant's guilt, the nature of Khusbu Modak's death, and the appellant's failure to provide a plausible explanation for the circumstances surrounding the murder.
Ratio Decidendi: The court applied the principles of circumstantial evidence, the burden of proof under section 106 of the Evidence Act, and the duty of the accused to provide a plausible explanation for incriminating circumstances. The court also considered the observations from medical jurisprudence to establish the nature of Khusbu Modak's death.
Final Decision: The criminal appeal was dismissed, and the appellant was directed to report to the concerned jail authority to serve the remaining sentence.
JUDGMENT :
Shree Chandrashekhar, J.
The sole appellant has faced the trial in Sessions Trial No. 178 of 2011 on the charge of committing murder of his wife, namely, Khusbu Modak @ Bulti. The appellant was found guilty and has been sentenced to R.I for life and a fine of Rs.10,000/-under section 302 of the Indian Penal Code, with a default stipulation to undergo S.I for six months.
2. Ichagarh P.S. Case No. 40 of 2011 was lodged on the basis of the fardbeyan of Bishu Modak which was recorded at about 11:00 PM on 19.08.2011 by Waquar Hussain, Sub-Inspector of Police/officer-in-charge of Ichagarh PS at the house of the appellant. Bishu Modak who is the father of Khusbu Modak has stated in his fardbeyan that his daughter was married with Sushen Modak in 2008 and from the wedlock two children were born. Sushen Modak was unemployed and addicted to drinking and gambling. His daughter was objecting to the bad habits of her husband but Sushen Modak would not listen to her and he used to quarrel with her. The informant has alleged that on 19.08.2011 Sushen Modak in course of a quarrel strangulated his daughter to death and falsely informed his wife that her daughter has hanged herself. The informant has further claimed that his house is near the matrimonial house of his daughter, he used to visit her frequently and on several occasions tried to reason with his son-in-law not to indulge in gambling and drinking. On such allegations, a First Information Report was lodged against Sushen Modak on 20.08.2011 and after the investigation a charge-sheet was laid in the Court.
3. By an order dated 19.01.2012, a charge under section 302 of the Indian Penal Code was framed against the appellant for committing murder of Khusbu Modak, and to prove the said charge the prosecution has examined seven witnesses out of whom PW1-Tulu Modak, PW2-Bishu Modak, PW3-Kedar Modak, PW4-Patiwala Modak and PW5-Samar Nath Modak are intimately related to the deceased PW7-Dr. Vivhakar Kumar who conducted the post-mortem examination has rendered an opinion that Khusbu Modak has died due to asphyxia as a result of pressure over the neck.
4. The learned Sessions Judge, Seraikella-Kharsawan has held that credibility of the prosecution witnesses was not shaken during the cross-examination and they are reliable witnesses. The learned Sessions Judge has further held that the circumstances proved by the prosecution unerringly point out towards guilt of the accused.
5. The plea raised by the accused that there is no clinching circumstance; more particularly the circumstance of last-seen-together, against the accused to hold him guilty for committing murder of his wife has been dealt with by the learned Sessions Judge in the following manner:
“17. The next contention of the defence is that there is no eye-witness in this case and none of the witness have seen the accused while the accused was pressing the neck of the deceased. Further, it was contended that in a case of circumstantial evidence there must be last scene theory and the accused and the deceased must be seen lastly prior to the occurrence. But in the instant case, it is lacking. He has also submitted that complicity of the accused in the said offence has not been established by the prosecution and therefore the accused is liable to be acquitted.
This contention of the defence should be scrutinized in the light of the evidence. The evidence has come against the accused that he came to the house of informant prior to the occurrence and told that his daughter Khusbu has committed something. P.W.1 Tulu Modak in Para 2 has clearly stated that just after the occurrence the accused went to the house with bicycle and returned and told that his daughter has committed something. The second evidence has come that witness P.W.2 Bishu Modak, P.W.3 Kedar Modak, P.W.4 Patiwala Modak and P.W.5 Samar Nath Modak have seen the dead body of the deceased at the flour of the house of the accused. Further the evidence has come that in the said ho
