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2012 DIGILAW 1215 (PAT)

Kedar Manjhi v. State of Bihar

2012-08-31

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT S.K. SHARMA, J. Criminal Appeal (DB) No. 1208 of 2008 filed on behalf of appellant Kedar Manjhi who has been convicted under Sections 307, 376, 302 read with Section 120(B) of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. The sentence is composite and it has not been segregated. The judgment of conviction dated 9th of August, 2008 and order of Sentence dated 18th of August, 2008 has been passed by the learned Additional Sessions Judge, Fast Track Court No. III, Jamui in Sessions Trial No. 498 of 2004, G.R. No. 757 of 2002 arising out of Sikandra P.S. Case No. 95 of 2002. 2. Initially the case was registered against this accused and others including his full brother Karu Manjhi on the basis of fardbeyan of Kalwatiya Devi P.W. 10, under Sections 452, 323, 324, 307, 364 (A) of the Indian Penal Code on 23.08.2002. Sections 376, 302 of the Indian Penal Code were added later on vide order dated 25.08.2002. Unfortunately, the fardbeyan or the formal First Information Report is not on the record and these documents were not exhibited by the prosecution. 3. The prosecution is being brought on record which has been noted in the judgment. The fardbeyan of Kalwatiya Devi P.W. 10 recorded at Primary Health Centre, Sikandra at 10.00 p.m. on 23.08.2002, divulged that in the previous night while she along with her family members were sleeping then at 10.00 p.m., the criminals forced their entry inside the house. They have been named as this appellant and others namely Karu Manjhi and Dhano Rabidas. They carried away the informant’s daughter Sarita Kumari aged 13 years and brutally assaulted the informant. The fardbeyan registered under Sections 452, 323, 324, 307, 364 (A) of the Indian Penal Code. In course of investigation, on the day following of the occurrence a dead body was recovered from a Jungle and it was suspected that prior to killing the informant’s daughter she was subjected to rape by the accused persons. After investigation, charge sheet was submitted and the case was committed to the court of Sessions where charge under Sections 302, 120(B), 364(A), 376 and 307 of the Indian Penal Code was explained to the accused and he pleaded innocence then the trial proceeded. Other accused absconded so they were not put on trial. 4. After investigation, charge sheet was submitted and the case was committed to the court of Sessions where charge under Sections 302, 120(B), 364(A), 376 and 307 of the Indian Penal Code was explained to the accused and he pleaded innocence then the trial proceeded. Other accused absconded so they were not put on trial. 4. The defence of the accused was of false implication and also that the occurrence was by the extremists to rule the locality and as the informant was having bitter relationship with the accused family so she graphed as unfortunate woman to settle her old disputes. The trial court after considering the evidence and after hearing the parties came to the opinion that the prosecution has succeeded its case and order of conviction has been passed. 5. This Court has to see as to whether the judgment of conviction and order of sentence is correct and it is based on the record or not. 6. In order to substantiate its charge, the prosecution has examined ten witnesses they are P.W.1 Nandlal Rabidas, P.W.2 Ramdhari Das, P.W.3 Sanjay Rabidas, P.W.4 Chote Lal Rabidas, P.W.5 Laljit Rabidas, P.W.6 Ramdeo Rabidas, P.W.7 Ramesh Kumar, P.W.8 Dr. Saiyad Nausad Ahmad, P.W.9 Rajesh Kumar and P.W.10 Kalwatiya Devi. P.W.10 Kalwatiya Devi is the informant and mother of the deceased. P.Ws. 6, 7 and 9 are brothers of the deceased. P.W.5 is father of the deceased. The investigating officer unfortunately has not been examined. Only the post-mortem report has been brought on record. Neither inquest nor fardbeyan or formal First Information Report has been brought on record. The doctor P.W.8 while deposing has stated that on 24.08.2002, he was posted as Medical Officer of Sub-Divisional Hospital, Jamui held autopsy of the dead body of Sarita Kumari at 08.55 a.m. and found anti-mortem injuries which were in nature of bruise and abrasion. Though vaginal swab was taken for pathological examination but the result has not been brought on record and it has remained unknown as to whether any pathological finding was recorded or not. No spermatozoa was found. The death was within 24 hours and the stomach was empty. 7. The evidence of the doctor conclusively proves that Sarita Kumari met a homicidal death on the night of 22nd August of 2002, but there is no finding as to whether prior to her death she was ravished or not. 8. No spermatozoa was found. The death was within 24 hours and the stomach was empty. 7. The evidence of the doctor conclusively proves that Sarita Kumari met a homicidal death on the night of 22nd August of 2002, but there is no finding as to whether prior to her death she was ravished or not. 8. The ocular evidence is of three types-one set of evidence or direct evidence is that the witnesses have claimed to be the witness of the occurrence. The second set of evidence is of hearsay witnesses and the third set of evidence is of completely ignorance about the occurrence. P.Ws. 1, 3 and 4, though have supported the allegation but they have not roped any of the accused and they have been turned hostile by the prosecution after they failed to narrate about the role of the accused. Their attention was drawn towards their statements before the investigating officer but the investigating officer has not come so they could not confront as to what was the statement of P.Ws. 1 to 4 under Section 161 of the Code of Criminal Procedure. Therefore, the evidence of these four witnesses is of no help to the prosecution. P.W. 6 is brother of the deceased, at the time of occurrence he was residing in Dhanbad and was selling tea. His maternal grand mother Jiria Devi came to Dhanbad and told that some thieves have entered in his house and stolen and have assaulted his mother and the thieves have also carried away his sister Sarita Devi towards the Jungle. When this witness came to his house then he knew about the occurrence. The sum substance is that P.W.6 is not a witness of the occurrence and he is a hearsay witness. 9. P.W.5 is the unfortunate father of the victim who has stated that in the night at 10.00 p.m., he was resting inside his house then Sakaldeo Rabidas, this appellant Kedar Manjhi and Karu Manjhi came and tried to open the door when they could not succeeded, then they forced entry after breaking the door and carried the informant’s wife Kalwatiya Devi P.W.10, outside the house and she was assaulted by iron rod as a result of which her head and hands were broken. The informant’s daughter Sarita Kumari was carried away while she was on rest. The informant’s daughter Sarita Kumari was carried away while she was on rest. P.W.5 was also assaulted and has claimed that after a bit the accused persons have killed Sarita Kumari. In the next morning, this witness came to know that corpse of Sarita Kumari was lying. His wife was taken for treatment to the hospital. He has denied in para-16 of his evidence that before police he has stated that after receiving telephonic information he has come to his house. 10. Learned Counsel for the appellant has drawn attention towards the statement of P.W. 5 under Section 161 of the Code of Criminal Procedure Code wherein he has stated that at Kolkata he has received information and then he has come. The investigating officer could not clarify as to what was the statement of P.W.5 before him. Thus two types of materials could not reconcile. P.W. 5 before the court has claimed himself to be the witness of the occurrence, wherein under Section 161 of the Code of Criminal Procedure in his statement he has claimed himself to be at Kolkata and according to the prosecution he has appeared to be a hearsay witness. These two types of fact come on the record have remained un-clarified. 11. P.Ws. 7 and 9 have given identical evidence wherein they have stated that Sarita Kumari was carried away and thereafter she was found dead. P.W.6 in para-7 has stated that extremists’ people rule the area. Similar is the evidence of another brother P.W.9. The remaining witness of the prosecution is P.W. 10 who has stated that she with her entire family members was sleeping in their house. Her husband was in the adjacent room. In the night this accused came and inside the Aangan of the house they raped Sarita Kumari and due to that she became unconscious and she was dragged outside. On the day following of the occurrence, the dead body was located. 12. The evidence of P.W. 10 in the court is not the version which she has uttered before police. Initially she has stated that her daughter was carried away and thereafter killed and she suspected that prior to her killing she could have been raped by the accused persons. But when she was examined in the court then she brought together different version of the occurrence that her daughter was raped inside the house. Initially she has stated that her daughter was carried away and thereafter killed and she suspected that prior to her killing she could have been raped by the accused persons. But when she was examined in the court then she brought together different version of the occurrence that her daughter was raped inside the house. These two versions are conflicting versions, both cannot be reconcile. If the prosecution has one particular set of case, then the onus is upon it to prove that the offence as alleged was committed in the manner as alleged and in otherwise. It is settled principle of criminal jurisprudence that in case of ambiguity in the prosecution version, the benefit goes to the accused and not to the prosecution. The charge under Section 376 of the Indian Penal Code was upon the basis of investigation which revealed that Sarita Kumari was taken away towards the Jungle wherein she prior to her death was raped. It was not the case that any of the accused has outraged the modesty of Sarita Kumari inside the house or inside the Aangan. But this version was introduced for the first time in the court here also the I.O. could have clarified as to what was the statement of P.W.10 before him. He could have to some extent clarified the vagueness but non-examination of the I.O. has left unanswered the charge of rape which had divulged and it cannot be said that on the basis of such vague testimony the charge have been proved. The doctor holding the post-mortem has taken swab and the purpose was that it should come on the record as to whether rape was done or not. Here, unfortunately that report has also not been brought on record. It was difficult on the basis of such evidence to accept the prosecution version that rape in the manner as alleged was effected to. Therefore, charge under Section 376 was not proved at all. If this allegation was merely alleged and beyond that no effort was made to substantiate it. In the result, we are of the view that charge under Section 376 of the Indian Penal Code was not proved at all. 13. Therefore, charge under Section 376 was not proved at all. If this allegation was merely alleged and beyond that no effort was made to substantiate it. In the result, we are of the view that charge under Section 376 of the Indian Penal Code was not proved at all. 13. Regarding charge under Section 307 of the Indian Penal Code, it is the prosecution case that P.W. 10 was injured on account of assault by the accused persons and therefore she was carried to Primary Health Centre where she gave her fardbeyan. No doctor of the health centre or anywhere has come to support the charge of injury of P.W. 10 the informant formally. No injury report of P.W. 10 has been brought on record. For proving the charge under Section 307 of the Indian Penal Code, extent of injury is to be proved. Only the intention had to be shown but when the case was that the assault was for the purpose of killing and the injured was thereafter carried to hospital for treatment then the mandatory requirement of law was that such injury report must have been brought on record and the doctor should have been examined who could have stated and thereafter inference could have been drawn as to whether there were any intervening circumstances or not. Non-bringing of the injury report of P.W. 10 on record and non-examination of the doctor who treated P.W.10 at Primary Health Centre, Sikandra are enough to doubt the prosecution version. So far as charge under Section 307 of the Indian Penal Code is concerned, therefore, the prosecution has failed to prove it. Another charge is under Section 302 read with Section 120(B) of the Indian Penal Code. The post-mortem report has been proved to show that Sarita Kumari had homicidal death but substantiating evidence has not been brought on record. Mandatory requirement of law is that as soon as the dead body is found, then the inquest report is prepared. Preparation of inquest report is not a formality rather it gives a picture to view the injuries of nature and circumstances which led to death. Mandatory requirement of law is that as soon as the dead body is found, then the inquest report is prepared. Preparation of inquest report is not a formality rather it gives a picture to view the injuries of nature and circumstances which led to death. Purpose of all this is that as soon as the dead body is found then the I.O. must give his opinion primarily regarding cause of death that opinion of the I.O. or the version of the witnesses noted on the inquest report gives indication and these are primary aspects of the investigation. The inquest report unfortunately has not been brought on record. In absence of other incriminating and divulging evidence with regard to the allegation of murder, it cannot be said that the prosecution has been able to discharge its onus in proving the case of the accused beyond shadow of all reasonable doubts. On such sketchy evidence, order of conviction cannot be sustained. The prosecution case has been conducted in most perfunctory manner and the persons who were responsible have definitely leaked and the trial court without substantial evidence has ordered the conviction. 14. The trial court has its mandatory duty under Section 313 of the Code of Criminal Procedure to say to the accused as to what evidence has come against him. The statement under Section 313 of the Cr.P.C., is direct link between the accused and the court no other party comes in between. It gives chance to the court to see the response of the accused when the evidence is summarized to him. Therefore, the onus is upon the trial court to explain the circumstances which have appeared against the accused in course of evidence. Right of accused under Section 313 of the Cr.P.C. is not an empty formality rather it is one of the most important rights of the accused to know as to what has come during trial against him and that knowledge has to be given by the court and none else. The trial court has narrated the evidence before the accused and all the three circumstances explained to the accused were that the killing was after the accused failed to obtain the ransom. There is no evidence that any ransom was demanded and the trial court has presumed that evidence has come that ransom was demanded and failure in paying ransom has resulted into killing. There is no evidence that any ransom was demanded and the trial court has presumed that evidence has come that ransom was demanded and failure in paying ransom has resulted into killing. No substances which have been explained to the accused can be relied upon for holding conviction. Therefore, it can safely be said that when the statement of the accused under Section 313 of the Cr.P.C. was recorded, then it was not correct and the trial court has presumed that demand of ransom was there and its failure has resulted in elimination of the victim. The scope of Section 313 of the Cr.P.C. has been considered in a number of judgment and the leading judgment reported in 1984 Supreme Court 1622 in the case of Sharad Birdhichand Sarda, v. State of Maharashtra has been followed continuously and unanimous view of this Court is that substance of evidence has to be explained and it has not been explained. Then it can be presumed that it has caused prejudice to the accused and order of conviction and on that basis cannot be sustained. On this score also it cannot be said that the circumstances which has appeared against the accused has been proved. 15. In view of the discussions, it is apparent that the prosecution has taken the case in very light manner and has not done his duty properly. There is no explanation as to why the I.O., who was one of the most important witnesses of the case, was not examined. Non-finding of the fardbeyan, formal First Information Report on the record has remained unexplained. 16. In view of the discussions, it is apparent that the prosecution has not been able to prove the charge against the accused beyond shadow of all reasonable doubts. Once a doubt is created then the benefit of doubt goes to the accused. Similar is the case here. 17. In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed. 18. Appellant Kedar Manjhi is reported to be in custody, he is directed to be released forthwith, if not wanted in any other case. Appeal allowed.