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Jharkhand High Court · body

2009 DIGILAW 1358 (JHR)

Patrik Kullu v. State of Jharkhand

2009-11-03

N.N.TIWARI, PRASHANT KUMAR

body2009
JEGEMENT These appellants have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo life imprisonment by the impugned judgment. 2. The prosecution was lodged on the basis of FIR lodged by the informant Masih Prakash Kandulana (P.W. 1). According to the F.I.R., a dead body of unidentified person was found floating in Lurgi river under the bridge. Police came to the place of occurrence (the source of information to the police, however, is not disclosed), took the statement of Masih Prakash Kandulana (P.W. 1). He allegedly stated before the police that he had seen Sipriyan Kerketta (Appellant No.2) pressing the unknown person against the pillar of the bridge. From his body blood was oozing. Both the appellants, seeing the informant, inquired about his destination of going. Thereafter, the appellants fled from the place of occurrence. The informant then went to Lucas Kandulana who was working nearby the field and with him went under the bridge and saw dead body of an unknown person aged about 30-32 years was floating. Lucas Kandulana told him that he had seen the appellants pushing the unknown person. Both of them tried but could not identify the dead body. 3. On the basis of the said information, the police took up investigation, prepared inquest report, took statement of witnesses including the sister and father of appellant no. 2 and thereafter submitted charge-sheet. '- 4. Charges against the appellants were framed under Section 302/34 of the Indian Penal Code and the case was committed to the Court of Sessions. The defence of the accused-appellants was denial of the charges. They were put on trial. In the examination under Section 313 Cr.P.C. they denied to have committed any offence, 5. Prosecution, in order to prove the charges against the appellants examined as many as seven witnesses. P.W. 1, the informant Masih Prakash Kandulana and P.W. 2 Lucas Kandulana are said to be material witnesses and they have been heavily relied upon by the learned court below. P.W. 3 Bendic Kerketta and P.W. 7 Ratia Singh are the witnesses to the inquest report. P.W. 4 Ranglal Baraik was brought as a prosecution witness but he turned hostile. P.W. 5 is the sister of Sipriyan Kerketta (Appellant No.2). P.W. 6 is the father of appellant no. 2. 6. P.W. 3 Bendic Kerketta and P.W. 7 Ratia Singh are the witnesses to the inquest report. P.W. 4 Ranglal Baraik was brought as a prosecution witness but he turned hostile. P.W. 5 is the sister of Sipriyan Kerketta (Appellant No.2). P.W. 6 is the father of appellant no. 2. 6. Learned trial court, on conclusion of trial, found that there was homicidal death of unknown person, on the basis of inquest report and he found guilty of committing murder of deceased on the basis of the evidence of P.W. 1, P.W. 2 and P.W. 5 and recorded conviction and sentence as aforesaid. 7. Mr. Sunil Kumar, learned counsel appearing on behalf of the appellants assailed the said judgment of the court below and submitted that there is no eye witness of the occurrence. The charges against the appellants have also not been proved by any circumstantial evidence. There is absolutely no admissible evidence on record to prove the homicidal death of the deceased. Neither the inquest report nor the post mortem report had been legally proved. Cause of death is uncertain. The dead body of the deceased is unidentified. No weapon had been seized. The Investigating Officer had not been examined. The doctor had also not been examined and the motive for committing murder of the deceased by the appellants had not been proved. The prosecution has mis, erably failed to bring any cogent evidence on record to support the charges against the appellants. The conviction is solely and erroneously based on assumptions and conjectures and is fully perverse and unsustainable. Learned counsel further submitted that P.W. 1 whose testimony has been heavily relied upon for holding the appellants guilty of the charges, has also changed his version and made contradictory statements and is not at all reliable witness. In the FIR, he said that he had seen the appellant no. 2 pressing the unidentified person against the pillar of the bridge with some injury on his person but in his deposition he has not supported the said version. He was examined as P.W. 1 and in his statement in paragraph 1 he has stated that he saw the dead body floating in the river water and in paragraph 2 stated he cannot say how he died. He was examined as P.W. 1 and in his statement in paragraph 1 he has stated that he saw the dead body floating in the river water and in paragraph 2 stated he cannot say how he died. P.W. 2 in paragraph 1 only states that he had seen a dead body of an unidentified person floating in the river under the bridge. He did not identify the dead body. These two witnesses who have been projected as star witnesses in this case, have neither seen the appellants giving any blow to the deceased nor they have identified the body at any subsequent stage to prove that they had seen the same dead body floating in the river. The inquest report had also not been properly proved by the prosecution but the same a/so been relied upon by the learned trial court. P.W. 5 is the sister of the appellant no. 4. According to the learned court below she also corroborated the prosecution case, but on going to her deposition it is evident that she said that on that date some stranger had entered into her house and she was scared by his entry. She ran away from the house and she informed about the same to his brother (appellant no. 2). In the second part of her evidence she stated that she heard that the said stranger was murdered. However, she clearly stated that she did not see the dead body. Learned counsel submitted that whether the dead body was of the same stranger is not at all co related by any piece of evidence on record. The Investigating Officer had not been examined to prove the identity of the dead body and the appellants were seriously prejudiced due to his non-examination as they were not able to cross-examine him on several vital points including the source of information, the distance of the field where P.W. 2 was said to have been ploughing. The appellants also could not confront the LO. on the contradictions appearing in the oral testimony of the prosecution witnesses. There was no proper examination of the appellants under Section 313 of the Cr.P.C. The circumstances which have been relied upon by the learned trial court were not stated to the appellants and they were not given proper opportunity of explaining the same. on the contradictions appearing in the oral testimony of the prosecution witnesses. There was no proper examination of the appellants under Section 313 of the Cr.P.C. The circumstances which have been relied upon by the learned trial court were not stated to the appellants and they were not given proper opportunity of explaining the same. Learned counsel submitted that this is a case of no evidence and for their no fault, the appellants have remained in custody for about 12 years. He urged that there are serious illegality and infirmities in the impugned judgment of the learned court below and the same is liable to be set aside. 8. Learned A.P.P., on the other hand, tried to support the impugned judgment and conviction of the appellants. He urged that though there is no direct evidence but the chain of circumstances are apparent on record which if linked together, reach to the only conclusion that the appellants and nobody else were author of the murder of the deceased. He submitted that P.W. 5, full sister of appellant no. 2 stated that a stranger had entered into her house which she informed to his brother. She subsequently came to know that the stranger was murdered. P.W. 1 in paragraph 1 of his deposition stated that he saw the dead body of an stranger floating in the river and he also saw that the appellants were there. P.W. 2 corroborated the said evidence of P.W. 1 and stated that when he went to the river with P.W. 1 he saw a dead body floating in the river. Both the witnesses have said that they did not identify the dead body. From the said consistent account of the events, learned trial court has rightly concluded that the appellants after the complain of sister of appellant no. 2, took the stranger to a lonely place under the bridge of Lurgi river and they finished him and threw the dead body in the water. The inquest report is the evidence of the homicidal death of the said stranger. The prosecution has thus, proved the culpable homicide caused by the appellants and has been able to establish the charges against the appellants. He urged that the learned trial court has discussed the evidence in detail and has rightly come to the conclusion holding the apellants guilty and convicted them for committing murder of an unknown person. 9. The prosecution has thus, proved the culpable homicide caused by the appellants and has been able to establish the charges against the appellants. He urged that the learned trial court has discussed the evidence in detail and has rightly come to the conclusion holding the apellants guilty and convicted them for committing murder of an unknown person. 9. Having heard the learned counsel for the appellants and learned APP, we' thoroughly examined the evidences and materials on record. Admittedly, there is no eye witness to the occurrence. The learned trial court has placed reliance on the oral testimony of P.W. 1 , P.W. 2 and P.W. 5 coupled with inquest report. On going through the inquest report, we find that the same has not been even formally proved. The witnesses to the inquest report, namely, P.W. 3 and P.W. 7 have said that they simply put their L TI and signature without knowing as to what was written in the paper. The 1.0.' has not come to support the inquest report. Now adverting to oral testimony of P.W. 1 and P.W. 2, we find that neither of them have stated that they saw these appellants giving even a single blow. P.W. 1 has made vacillating statement and his deposition by saying that he saw dead body floating in the river. He has not supported the statement made in the FIR that the said stranger was seen pushed against the pillar of the bridge by the appellant no. 2. P.W. 2 has also not uttered a word regarding the manner of occurrence as stated above. P.W. 5 Mathura Kerketta who happens to be the sister of appellant no. 2 is not witness to the occurrence. She had not seen the dead body to correlate that it was the dead body of the same person who had entered into her house. The doctor had not been examined in this case and the cause of death has also not been proved. Investigating Officer had also not been examined to support the inquest report and other vital points relevant for the purpose. We feel a great prejudice has been caused to the appellants for non examination of the 1.0. in this case. The doctor had not been examined in this case and the cause of death has also not been proved. Investigating Officer had also not been examined to support the inquest report and other vital points relevant for the purpose. We feel a great prejudice has been caused to the appellants for non examination of the 1.0. in this case. We also find substance in the submission of the learned counsel for the appellants that the question regarding the circumstance which have been relied upon for convicting the appellants were not put to them and they have been deprived of their valuable rights to explain the same. We are, thus, unable to concur with the findings of the learned trial court either on factual or legal basis. We, accordingly, hold that the prosecution has not been able to bring any positive evidence to prove the charges against the appellants and the learned trial court has committed serious error of law as well as facts in holding them guilty and convicting them under Section 302 of the IPC. In view of the above discussion, appellants' conviction cannot sustain. 10. The appellants are accordingly, acquitted of the charges and consequently this appeal is allowed. We are informed that the appellants are in custody. They shall be set at liberty forthwith, if not wanted in any other case.