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2003 DIGILAW 459 (JHR)

Nutan Kerketta v. State of Jharkhand

2003-04-09

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2003
Judgment Lakshman Uraon, J.- The appellant, Nutan Kerketta, has preferred this appeal against the judgment and order of conviction and sentence dated 24.3.98 passed by Shri Tarkeshwar Prasad, Sessions Judge, Gumla in S.T.No.233/94, whereby and whereunder, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. 2. The prosecution case in brief is, as stated in the fardbeyan, Ext.5, by the informant, Martha Kerketta (not examined), recorded by the S.I., Gupteshwar Singh, PW-11, Officer-in-Charge of Kamdera P.S. on 18.11.93 at 8.30 A.M. at village Rerwa Ambatoli is that on 16.11.93 at 7.30 P.M. she was sitting by the side of oven and her son, Nutan Kerketta, the appellant, was sitting inside the home at the door. At that time her husband, Daud Kerketta (since dead) returned home after doing his labour work. As soon as he wanted to enter into his home, then Nutan Kerketta in an intoxicated mood questioned his father, Daud Kerketta, as to where he had gone? His father replied that he had gone to do his labour work. At that very moment Nutan Kerketta started assaulting his father. The informant came out of the house and saw her son, the appellant, Nutan Kerketta, assaulting her husband, Daud Kerketta, on his head with an axe. Her husband on being injured fell down in front of the house. Her son, Nutan Kerketta, after assaulting his father fled away towards Basti. Her husband died instantaneously at the spot. As it was late night she did not inform anyone in the village. In the next morning, she informed Manthi Prakash Kerketta (not examined) and then the other villagers went to her house and saw her husband dead. The blood-stained axe was thrown outside her home which was picked up and kept by her. Her son, Nutan Kerketta, after causing the murder of his father went in search of Hanuk Kerketta, PW-5, elder brother of his father, taking Dauli to kill him. 3. The prosecution has examined altogether 10 witnesses in order to substantiate the charge levelled against the appellant, Nutan Kerketta, under Section 302 of the IPC. PW-1, Mir Prakash Munda and PW-2, David Kerketta are the seizure-list witnesses in respect of seized bloodstained axe, signature of PW-1 ( Ext. 1) and their signatures on the inquest-report prepared by the I.O. in their presence in carbon process, Exts. 2 & 2/1 respectively. PW-1, Mir Prakash Munda and PW-2, David Kerketta are the seizure-list witnesses in respect of seized bloodstained axe, signature of PW-1 ( Ext. 1) and their signatures on the inquest-report prepared by the I.O. in their presence in carbon process, Exts. 2 & 2/1 respectively. PW-3, Joseph Surin, is the witness before whom Nutan Kerketta made his extra judicial confession that he murdered his father. PW-4, Juhani Barla, went to the house of the appellant in the evening and saw the dead body of the father of the appellant. The mother of the appellant (informant) had not informed this witness as to how her husband died. PW-5 , Hanuk Kerketta, is the seizure-list witness in respect of blood-stained soil. He signed on the seizure-list, Ext.3, prepared by the I.O., after seizing the blood-stained soil in his presence. The I.O. also seized the blood-stained axe in his presence and prepared the seizure-list on which also he signed, Ext.1/1. PW-6, Dr. Hemant Kumar, conducted the autopsy on the dead body of Daud Kerketta on 19.11.93 at 7 A.M. and submitted postmortem examination report, Ext.4. PW-7, Junas Barla, went to the house of the informant and saw the dead body of Daud Kerketta in the courtyard. The informant, Martha Kerketta, was weeping by the side of the deceased. She did not disclose as to who assaulted her husband, Daud Kerketta resulting his death. PW-8 is the witness before whom Nutan Kerketta made his extra judicial confession that he murdered his father and fled away. When this witness went to the house of the informant, he found Daud Kerketta dead. PW-9, Adam Kerketta, is a hearsay witness who was informed by the informant, Martha Kerketta, that her husband was murdered by her son, Nutan Kerketta. He saw the dead body of Daud Kerketta in the courtyard of the informant. PW-10, Tanis Guria, was in his Khalihan where Nutan Kerketta went and informed that when he will return back from jail then he would cause the murder of Hanuk Kerketta. PW-11, Gupteshwar Singh, is the I.O. of this case and PW-12, Adam Munda, is a tendered witness. The defence has taken the plea that the appellant is innocent and has falsely been implicated in this case. 4. PW-11, Gupteshwar Singh, is the I.O. of this case and PW-12, Adam Munda, is a tendered witness. The defence has taken the plea that the appellant is innocent and has falsely been implicated in this case. 4. The learned Session Judge, Gumla, relied upon the oral and documentary evidence produced by the prosecution and convicted the appellant under Section 302 IPC and sentenced him to undergo imprisonment for life. 5. Assailing the judgment of conviction and sentence passed by the learned Sessions Judge, Gumla Miss Srabani Sanyal, Advocate, appointed as amicus curiae to assist the Court on behalf of the appellant, has submitted that there is no eye-witness of the alleged occurrence. The informant, Martha Kerketta, has not been examined in this case. The extra judicial confession made by this appellant before PW-8, Marcel Kerketta and PW-3, Joseph Surin could not be corroborated by any independent village witness; hence it can not be taken into consideration in convicting the appellant. The appellant was produced before the Magistrate for recording his statement under Section 164 Cr.P.C. but he did not confess his guilt. It was further submitted that some unknown person caused the murder of Daud Kerketta and this appellant has falsely been implicated at the instance of interested co-villagers. 6. The learned APP has submitted that the informant, Martha Kerketta could not be examined as she died. This appellant has made his extra judicial confession before the village independent witnesses, PW-3, Joseph Surin, PW-8, Marcel Kerketta and PW-10, Tanis Guria that he murdered his father. Before PW-10 he further said that after coming out of the jail he would murder one more person. The I.O. seized the blood-stained soil, blood-stained axe and also prepared inquest-report of the dead body. The learned Sessions Judge has considered the oral and documentary evidence produced by the prosecution and has rightly convicted and sentenced the appellant. 7. The informant, Martha Kerketta, wife of the deceased, Daud Kerketta, died in the year 1995 before framing of charge against her son, Nutan Kerketta, under Section 302 IPC; hence, she could not be examined by the prosecution. Her fardbeyan, Ext. 5, was recorded in presence of David Kerketta, PW-2 and Hanuk Kerketta, PW-5, by the S.I., Gupteshwar Singh, PW-11. PW-11, Gupteshwar Singh, heard rumour on 18.11.93 at 7 A.M. that one person was murdered at village Rerwa Ambatoli. Her fardbeyan, Ext. 5, was recorded in presence of David Kerketta, PW-2 and Hanuk Kerketta, PW-5, by the S.I., Gupteshwar Singh, PW-11. PW-11, Gupteshwar Singh, heard rumour on 18.11.93 at 7 A.M. that one person was murdered at village Rerwa Ambatoli. He entered S.D.E. No. 249/ 18.11.93 and went to the P.O. village alongwith other Police officials. He reached there at 8.30 A.M. and recorded the fardbeyan, Ext. 5, of the informant, Smt. Martha Kerketta, in presence of David Kerketta PW-2 and Hanuk Kerketta, PW5, on which Martha Kerketta gave her L.T.I. and the other witnesses signed. He found the dead body of Daud Kerketta in front of the house of the informant in an open terrace at village Rerwa Ambatoli. He found the blood-stained soil and prepared the seizure-list and inquest-report. He also seized the blood-stained axe and prepared seizure-list. He sent the dead body for postmortem examination. PW-6, Dr. Hemant Kumar, conducted the autopsy on the dead body of Daud Kerketta on 19.11.93 at 7 A.M. and found rigor mortis present in both lower limbs but absent in both upper limbs. He found the following antemortem injuries on the dead body. (1) Incised wound 4" x 1" x 3" over right temporal parietal region of the head with fracture of underlying bones, meninges and brain matter also cut, blood clot present. (2) Bruise 5" x 4" over front of lower part of left side of the chest with rupture of spleen. He opined that the injury No.1 was caused by a sharp-cutting weapon (may be an axe) and injury No.2 was caused by a hard and blunt substance (may be by the back portion of an axe). Both the injuries were sufficient in the ordinary course of nature to cause the death within 24-48 hours from the time of postmortem examination. Postmortem examination report is Ext. 4. The evidence of the I.O., PW-11, Gupteshwar Singh, corroborates the ocular evidence of the witnesses regarding the place of occurrence and PW-6, Dr. Hemant Kumar, who conducted the autopsy and submitted the postmortem examination report, Ext.4, corroborates the nature of injuries caused by a sharp-edged axe and also by the blunt portion of an axe. 4. The evidence of the I.O., PW-11, Gupteshwar Singh, corroborates the ocular evidence of the witnesses regarding the place of occurrence and PW-6, Dr. Hemant Kumar, who conducted the autopsy and submitted the postmortem examination report, Ext.4, corroborates the nature of injuries caused by a sharp-edged axe and also by the blunt portion of an axe. The occurrence took place 24-48 hours prior to the time of postmortem examination on 19.11.93 at 7 A.M. corresponds the time of the alleged occurrence which took place on 16.11.93 at 7.30 P.M. Thus, I find that the P.O. and time of the alleged occurrence has well been established by the prosecution. 8. The informant Martha Kerketta wife of the deceased and mother of the appellant, died hence she could not be examined by the prosecution. Her fardbeyan, Ext.5, was recorded in presence of PW-2, David Kerketta and PW-5, Hanuk Kerketta. The question haunts as to whether the fardbeyan, Ext.5, of the informant can be taken into evidence and also the extra judicial confession made by the appellant before PW-3, Joseph Surin, PW-8, Marcel Kerketta and PW-10, Tanis Guria; and can be relied upon for convicting the appellant for causing the murder of his father. At the time of the alleged occurrence the informant, Smt. Martha Kerketta, was sitting by the side of the oven. The appellant was sitting near the inside door of the house. He was intoxicated. As soon as his father, Daud Kerketta, was entering into the home, he was questioned by the appellant as where he had gone. When Daud Kerketta informed that he had gone to do labour work then this appellant started assaulting with axe. The informant came out from the house on alarm and saw this appellant assaulting with axe on the head of her husband in front of the door outside the house. The Doctor, PW-6, found injury on the head of Daud Kerketta. The injury No.1 is incised wound 4" x 1" x 3" on the right temporal region of the head said to have been caused by sharp edge of an axe which corroborates the statement of the informant, Martha Kerketta, as recorded by the I.O. in her fardbeyan, Ext.5. The size of the wound leads to the conclusion that it must have been caused by the sharp edge of an axe. The size of the wound leads to the conclusion that it must have been caused by the sharp edge of an axe. The second injury was bruise 5" x 4" rupturing the spleen on the left side of chest shows that the assault was made with the blunt portion of an axe. The I.O. found the dead body in front of the door of the informant where blood was found. He prepared inquest-report of the dead body and also seized the bloodstained soils and axe at the P.O. in presence of PW-1, Mir Prakash Munda and PW-2, David Kerketta. The appellant made his extra judicial confession before PW-3, Joseph Surin and PW-8, Marcel Kerketta that he caused the murder of his father. PW-9, Adam Kerketta, is a hearsay witness who was informed by the informant, Smt. Martha Kerketta, that her husband was murdered by her son, Nutan Kerketta. PW-10, Tanis Guria, was in his Khalihan where Nutan Kerketta went and informed him that when he will return back from jail, he would cause the murder of one more person, Hanuk Kerketta, who is the father-in-law of this witness. All these witnesses PW-3, PW-8, PW-9 and PW-10 went to the house of the informant and saw the dead body of Daud Kerketta. At the time of the alleged occurrence there was no independent village eye-witness at the P.O. Hence it is not possible that someone would have witnessed the alleged manner of occurrence. The only witness who was present, was the informant, Smt. Martha Kerketta (since deceased). Her statement was recorded on 18.11 .93 at her village home by the I.O. whereas the alleged occurrence took place on 16.11.93 at 7 P.M. The P.O. is an interior village Rerwa Ambatoli, 18 K.Ms. from the P.S. Gumla. She did not inform at night anyone and was weeping sitting by the side of the dead body of her husband and surprisingly no villager went to her house. In the morning she informed Manthi Prakash Kerketta (not examined) and then the other villagers went to her house and saw the dead body. Just after causing the murder of• Daud Kerketta the appellant, Nutan Kerketta, informed PW-3 and PW-8 that he had murdered his father. He also informed PW-10 that when he would. return back from jail he would cause the murder of one person, who is his father-in-law, Hanuk Kerketta. Just after causing the murder of• Daud Kerketta the appellant, Nutan Kerketta, informed PW-3 and PW-8 that he had murdered his father. He also informed PW-10 that when he would. return back from jail he would cause the murder of one person, who is his father-in-law, Hanuk Kerketta. All these witnesses have deposed in the Court that before them Nutan Kerketta made his extra judicial confession. PW-9, Adam Kerketta, has also deposed that Martha Kerketta (since dead) had informed him that her son, Nutan Kerketta, murdered her husband, Daud Kerketta. All these village independent witnesses are not on inimical term with the appellant before whom he made extra judicial confession regarding the murder of his father. All these witnesses went and saw the dead body of Daud Kerketta in front of the door of the house of the informant. PW-11, Gupteshwar Singh reached the P.O. village Rerwa Ambatoli on 18.11.93 at 8.30 A.M. and recorded the fardbeyan (Ext.5) of Martha Kerketta in presence of the witnesses. He found the dead body of Daud Kerketta in front of the house of the informant in an open terrace in a pool of blood. The house of the informant is just at a distance of 10 from that place. He seized the blood-stained soil, blood-stained axe and prepared the seizure-list and inquest report. He sent the seized blood-stained materials for examination at F.S.L. Ranchi but the report could not be received. In course of investigation the I.O. recorded the statement of PW-3, Joseph Surin who has not stated that the appellant, Nutan Kerketta, had gone to his home and confessed his guilt rather he has deposed that Nutan Kerketta passed by the side of his house• raising alarm. Nutan Kerketta in his examination under Section 313 Cr.P.C. has denied to have made any extra judicial confession before any villager. The informant, Martha Kerketta, did not inform anybody in the village at night although it was at about 7.30 P.M. and was not so late night. In the morning she informed Manthi Prakash Kerketta then the other villagers went to her home and saw the dead body. Martha Kerketta was sitting near the oven and on hearing alarm she came out and saw that this appellant gave assault with axe on the head of her husband, Daud Kerketta, who fell down and died in front of the door on an open terrace. Martha Kerketta was sitting near the oven and on hearing alarm she came out and saw that this appellant gave assault with axe on the head of her husband, Daud Kerketta, who fell down and died in front of the door on an open terrace. She claimed that she picked up the blood-stained axe and kept which she handed over to the I.O. At night none went to her home nor anyone was near the dead body. Martha Kerketta did not disclose the name of the assailant throughout the night even before the villagers. On the other hand, PW-9, Adam Kerketta, was informed by Martha Kerketta that the appellant Nutan Kerketta murdered her husband. PW-8, Marcel Kerketta, deposed that Nutan Kerketta confessed his guilt before him when he had gone to the house of Joseph Surin, PW-3, to eat and drink. Joseph Surin, PW-3, has not stated before the I.O. that Nutan Kerketta had confessed before him. This statement of Joseph Surin that the appellant made extra judicial confession, does not disclose that at that time PW-8, Marcel Kerketta was also present. 9. Considering the fardbeyan, Ext.5, of the informant, Martha Kerketta, it is clear that she never disclosed at night to any villager regarding the assault on the head of her husband with an axe by this appellant, Nutan Kerketta, her son. The alleged occurrence took place on 16.11.93 at 7.30 P.M. but the fardbeyan of the informant, Martha Kerketta, was recorded on 18.11.93 at 8 A.M. at village Rerwa Ambatoli. The FIR was received in the Court of the C.J.M. on the next day i.e. on 19.11.93. The prosecution has not explained about the delay in informing the Police and delayed recording of the fardbeyan, Ext.5, of the informant in presence of David Kerketta, PW-3, and Hanuk Kerketta, PW-5. Hanuk Kerketta is the father-in-law of PW-10, Tanis Guria. PW-5, Hanuk Kerketta, has not deposed that he was also threatened to be killed by this appellant but PW-10, Tanis Guria, his son-in-law, has deposed that Nutan Kerketta had stated that when he would return back from jail he would cause murder of his father-in-law, Hanuk Kerketta. The delayed recording of the fardbeyan of the informant, Smt. Martha Kerketa (since dead), who gave her L.T.I. being a rustic village lady, was guided by PW-2, David Kerketta and PW-5, Hanuk Kerketta. The delayed recording of the fardbeyan of the informant, Smt. Martha Kerketa (since dead), who gave her L.T.I. being a rustic village lady, was guided by PW-2, David Kerketta and PW-5, Hanuk Kerketta. Hanuk Kerketta was threatened by Nutan Kerketta hence there is possibility that after concoction and embellishment after two days of the alleged occurrence the fardbeyan, Ext.5, of Martha Kerketta was brought into existence. This delayed recording of fardbeyan is not without any blemish or concoction as extra judicial confession was made by this appellant before PW-3, Joseph Surin but the I.O., PW-11, has deposed that Joseph Surin has not made any statement that the appellant had made any extra judicial confession before him. The extra judicial confession alleged to have been made before Joseph Surin, PW-3, and Marcel Kerketta, PW-8, could not be corroborated by any independent reliable village witness. The appellant has also retracted in his statement recorded under Section 313 Cr.P.C. to have made any extra judicial confession. 10. It is an unfortunate case of patricide. The informant, Martha Kerketta, in her fardbeyan, Ext.5, has stated that her son, Nutan Kerketta, was sitting by the side of the inner door of her house in an intoxicated stage as he had taken liquor. After causing the murder of his father, he threw the blood-stained axe and fled away towards Basti. There was no occasion that he had gone to PW-3, Joseph Surin and PW-8, Marcel Kerketta for making any extra judicial confession. They are not the well-wishers of Nutan Kerketta or related to him. Nutan Kerketta was produced before the Magistrate for making extra judicial confession but he did not make any statement under Section 164 Cr.P.C. confessing his guilt. In view of this fact it creates doubt in my mind as to whether the fard-beyan, Ext.5, is the statement of Martha Kerketta who is now dead and the statement of PW-3 and PW-8 that Nutan Kerketta made extra judicial confession before them voluntarily. PW-3 and PW-8 have deposed that Nutan Kerketta had gone to them in course of fleeing, away towards Basti informing that he caused the murder of his father. PW-10, Tanis Guria, was in his Khalihan at a distance of one K.M. from the village Rerwa Ambatoli. He was also informed by this appellant, Nutan Kerketta, that he murdered his father and would also cause the murder of his fatherin-law, Hanuk Kerketta. PW-10, Tanis Guria, was in his Khalihan at a distance of one K.M. from the village Rerwa Ambatoli. He was also informed by this appellant, Nutan Kerketta, that he murdered his father and would also cause the murder of his fatherin-law, Hanuk Kerketta. This statement creates doubt regarding false implication of this appellant by PW-5, Hanuk Kerketta and PW-2, David Kerketta, who were present when the fardbeyan of Nutan Kerketta was being recorded by the S.I., PW-11, Gupteshwar Singh, who is the I.O. of this case. In view of this fact and circumstances and delayed recording of the fard-beyan, Ext.5, of Martha Kerketta, cannot be the basis of conviction of this appellant when his extra judicial confession made before PW-3 and PW-8, could not be corroborated by any independent village witness. As I have discussed above that there was no occasion for making any extra judicial confession by this appellant while he was fleeing away towards Basti. While fleeing away towards Basti he is alleged to have made his extra judicial confession. But the I.O. who recorded their statements has not deposed that they had stated regarding the extra judicial confession made before them by this appellant, Nutan Kerketta. Hence, in my considered opinion, the extra judicial confession allegedly made before PW-3, Joseph Surin, by this appellant, was not stated by this witness (PW-3) before the I.O. in course of investigation under Section 161 Cr.P.C. Hence his evidence that the appellant had made extra judicial confession before him, is not trustworthy and a result of afterthought. The other witness, PW-8, Marcel Kerketta, has simply deposed that when he went to the house of Joseph Surin (PW-3) to eat and drink then Nutan Kerketta was passing through the house of Joseph Surin (PW-3) informing them that he has murdered his father and fled away. Thus, both these witnesses, PW-3 and PW-8, were together before whom Nutan Kerketta is alleged to have made his extra judicial confession which remained uncorroborated by any other reliable independent village witnesses. As I have stated above that both these witnesses, PW-3 and PW-8 are neither the well-wishers of the appellant nor closely related with him hence there was no occasion to make any extra judicial confession before him by this appellant. 11. As I have stated above that both these witnesses, PW-3 and PW-8 are neither the well-wishers of the appellant nor closely related with him hence there was no occasion to make any extra judicial confession before him by this appellant. 11. The fardbeyan, Ext.5, of the informant, Martha Kerketta, and the extra judicial confession, alleged to have been made by this appellant before PW-3 and PW-8, could not be corroborated by any independent, reliable and trustworthy village witnesses. Moreover, throughout the night, Martha Kerketta, wife of the deceased, Daud Kerketta, remained by the side of the dead body of her husband. No one went there at that time although it was not so late hour as it was only 7.30 P.M. The entire village had not gone in a deep slumber. Even then, Martha Kerketta did not inform anybody and remained mum throughout the night. In the morning also she did not inform any villager including PW-3, PW-8 and PW-10 that Nutan Kerketta assaulted with axe on the head of her husband resulting his death. The evidence of PW-9 that Martha Kerketta informed him that her husband was assaulted with axe by Nutan Kerketta does not stand corroborated by any other evidence of any competent and reliable witness. 12. In view of my above considered facts, I come to the conclusion that the fardbeyan, Ext.5, and the evidence of PW3, PW-8 and PW-10 that Nutan Kerketta made his extra judicial confession, could not be corroborated by any independent village witness. The fardbeyan recorded after two days in a pre-planned manner, casts doubt in the true narration of the alleged occurrence in the fardbeyan which was recorded in presence of PW-2, David Kerketta and PW-5, Hanuk Kerketta. Martha Kerketta, the informant, is a village illiterate lady who gave her L.T.I. on her fardbeyan. On the other hand, PW-2 and PW-5 had signed on it which shows the afterthought creation of fardbeyan of these two witnesses. Hence the fardbeyan, Ext.5, is also not free from concoction or blemish which cannot be taken into evidence in convicting the appellant, Nutan Kerketta, under Section 302, IPC. On the other hand, PW-2 and PW-5 had signed on it which shows the afterthought creation of fardbeyan of these two witnesses. Hence the fardbeyan, Ext.5, is also not free from concoction or blemish which cannot be taken into evidence in convicting the appellant, Nutan Kerketta, under Section 302, IPC. The learned Sessions Judge has gravely erred in relying upon the fardbeyan (Ext.5) and the extra judicial confession made by the appellant, in convicting the appellant under Section 302 IPC and sentenced him to undergo imprisonment for life which cannot be sustained in the facts' and circumstances of this case. There is total absence of any legal evidence on the record to bring home the guilt of the appellant beyond all reasonable doubts. Therefore, the impugned judgment is unsustainable. 13. In the result, I find merit in this criminal appeal which succeeds. This criminal appeal is hereby allowed and the judgment and order of conviction and sentence passed by the learned Court below in S.T. No. 233/94, is, accordingly, set aside. As the appellant is in custody, hence he is ordered to be released forthwith from the custody if not wanted in any other case. Vishnudeo Narayan, J.-I agree.