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2015 DIGILAW 448 (JHR)

Tala Dada @ Ramjit Murmu v. State of Jharkhand

2015-04-08

P.P.BHATT, VIRENDER SINGH

body2015
JUDGMENT Virender Singh, C.J.: 1. Appellant Tala Dada @ Ramjit Murmu (hereinafter to be referred to as 'accused') who was of the age of 24 years at the time of alleged occurrence after having been convicted and sentenced for the charge of Section 302 IPC vide impugned judgment of 1st Additional Sessions Judge, Pakur dated 6th December, 2003, has preferred the instant appeal which was admitted way back in year 2004. He, however, stands acquitted for the charge of Section 376 IPC. Admittedly, State has not preferred any appeal against the acquittal earned by the accused for the said charge. 2. Since the accused is languishing in jail for the last about 13 years (12 years, 09 months and few odd days), priority has been given to the instant appeal. 3. As per the prosecution case, the deceased (name not being disclosed), daughter of PW Fate Kisku was having love affairs with the accused. She conceived and when the pregnancy reached at a particular stage (05 months), the deceased became worried and anxious and disclosed all to her Bhabhi (brother's wife) PW-4 herein who advised her to get the pregnancy terminated secretly for which the deceased approached the accused for some money and also put forth a proposal/request for marrying her. It is then the case of the prosecution that the deceased went to her sister's house at village Chirudih and from there she had gone to see Lagdum fair with her companions. At about 7.30 P.M., the accused and two other boys met the deceased and after some talk, she was dragged towards some dark side. The girls who were accompanying the deceased thought that the deceased had willfully gone with the accused because they were knowing each other very well and having love affairs. The reason projected is that Santhali custom is that if the boy likes the girl, he can drag the girl. On the next day, the dead body of the deceased was found hanging from a tree. It is thereafter the investigation was carried out by PW-9 and after culmination of the investigation, challan was filed and accused put to trial to face the charge of Section 302 IPC and Section 376 IPC. He is ultimately acquitted of the charge of Section 376 IPC and convicted for the charge of Section 302 IPC as stated above. 4. It is thereafter the investigation was carried out by PW-9 and after culmination of the investigation, challan was filed and accused put to trial to face the charge of Section 302 IPC and Section 376 IPC. He is ultimately acquitted of the charge of Section 376 IPC and convicted for the charge of Section 302 IPC as stated above. 4. In support of the charge, the prosecution in all, has examined as many as 10 witnesses but we do not feel the necessity of entering into the detailed discussion of the evidence available on record for the reason that what disturbs us more in this case is the manner in which the postmortem report (for short P.M.R.) is got proved by the prosecution. 5. Dr. Tajul Mulk who had conducted autopsy on the dead body of the deceased when got retired, a novel way of proving the postmortem report has been adopted by the Public Prosecutor which was accepted by the learned trial court also. A clerk namely Uttam Kumar Dey in the office of an Advocate stepped into the witness box as PW-10 and proved the postmortem report. His evidence in vernacular when reproduced in English, reads as under :- “This postmortem report is in the handwriting and signature of Dr. Tajul Mulk, Doctor Sadar Hospital. Identified. Marked as Ext.-4. Cross Examination This has not been prepared before me. His whereabouts is not known.” 6. How the aforesaid Clerk to an Advocate is connected with the present case is not known. He is not one who was present when the autopsy on the dead body of the deceased was conducted by Dr. Tajul Mulk. He is not cited as one of the prosecution witnesses. When he stepped into the witness box, he simply got the P.M.R. exhibited. How could he identify the signature of the doctor is again a strange state of affairs. However, in his cross examination, he categorically stated that postmortem report was not prepared in his presence. How this P.M.R. could be read into evidence is not known to law of Evidence. 7. Taking the advantage of the aforesaid gross irregularity committed in the trial, Mr. However, in his cross examination, he categorically stated that postmortem report was not prepared in his presence. How this P.M.R. could be read into evidence is not known to law of Evidence. 7. Taking the advantage of the aforesaid gross irregularity committed in the trial, Mr. Ojha learned counsel for the accused vehemently contended that the conviction of the accused, under the present set of circumstances is not sustainable for the charge of Section 302 IPC, the same being not proved in the absence of there being any medical evidence. He submitted that possibility of the deceased having committed suicide in this case cannot be ruled out which fact is borne out from the P.M.R. itself, if seen minutely and had the Doctor of autopsy stepped into witness box, it could be made more clear from his statement. Therefore, non-examination of the Doctor and the P.M.R. being not proved, the prosecution has no evidence to say that the death of the victim was homicidal and could not be otherwise, therefore, the conviction of the accused for the charge of murder would not be legally maintainable. 8. Learned counsel submitted that even if it is presumed that the accused had been carrying on with the deceased, although denied, it would be of no relevance, especially when for the charge of Section 376 IPC, he already stands acquitted. He thus prays for the acquittal of the accused for the charge of Section 302 IPC, in turn allowing of the instant appeal. 9. Learned counsel submitted that in case the aforesaid flaw, although vitiates the entire trial and can be said to be a good ground for acquittal, does not appear to the Court for acquitting the accused and instead it turns out to be a case for remitting it to the trial court for recording the evidence of the doctor who conducted the postmortem or for proving the postmortem report otherwise in accordance with law, in that eventuality, the accused who is languishing in the jail for the last 13 years deserves the concession of bail atleast. 10. Learned State counsel finds himself in an uncomfortable position when confronted with the aforesaid grave irregularity committed by the trial court in conducting the trial. He, however, submitted that looking into the seriousness of the charge, it is not a case in which the accused deserves clearcut acquittal. 10. Learned State counsel finds himself in an uncomfortable position when confronted with the aforesaid grave irregularity committed by the trial court in conducting the trial. He, however, submitted that looking into the seriousness of the charge, it is not a case in which the accused deserves clearcut acquittal. He submitted that but for the aforesaid irregularity crept in the trial, out of which he cannot get out, the prosecution has sufficient evidence to prove the charge against the accused as he was lastly seen in the company of the deceased and then her dead body was found hanging. There is a strong motive also to commit the murder. 11. What appears to the Court is that Public Prosecutor, in this case, has totally failed in his responsibility in examining the witnesses. Not only that even the Trial Judge failed to apply his mind and mechanically concluded the Trial. The lapse on the part of the Public Prosecutor and the Trial Judge, as occurred in this case, in our considered view, has jeopardized the entire trial. 12. No doubt the prosecution in its attempt has adduced sufficient evidence to prove the offence except the cause of death as stated by learned State counsel, but whether the death in this case is homicidal or not, could be proved only by examining the doctor, who conducted the autopsy on the dead body of the deceased, non-examination thereof leaves a gapping hole in the case of prosecution regarding the nature of death of the deceased. We, however, refrain from commenting on the merits of the case any more at this stage, lest it may prejudice the case of either side. 13. A medical witness, who performs the postmortem is a witness of fact, as he also gives an opinion on certain aspects of the case. Value of a medical witness is not merely a check upon the testimony of the eye witnesses, which is also an independent testimony, because it may establish certain facts quite apart from the other evidence as held by Hon’ble Supreme Court in Case Nagendra Bala Mitra Versus Sunil Chandra Rao reported in AIR 1960 SC 706 . Value of a medical witness is not merely a check upon the testimony of the eye witnesses, which is also an independent testimony, because it may establish certain facts quite apart from the other evidence as held by Hon’ble Supreme Court in Case Nagendra Bala Mitra Versus Sunil Chandra Rao reported in AIR 1960 SC 706 . It is true that the Post Mortem Report by itself cannot be said to be a substantive piece of evidence, but, at the same time, the evidence of doctor conducting the postmortem can by no means be ascribed to be insignificant as held by Hon’ble Supreme Court in case State of Haryana versus Ram Singh reported in (2002) 2 SCC 426 . 14. Undoubtedly and admittedly, the aforesaid lapse has occurred in this case. But, in our considered view, it is not a case of acquitting the accused as prayed for, instead keeping in view the flaw crept in this case, we do find it to be a case of remitting it to the Trial Court for recording the evidence of the Doctor, who conducted the autopsy on the dead body of the deceased and in the event of the said doctor being not available for the circumstances beyond the control of the prosecution, to proceed ahead for proving P.M.R. in accordance with law. We, thus, decline the prayer of learned counsel for the accused for acquittal atleast. In any case, in this eventuality, the conviction/sentence slapped upon the accused deserves to be set aside. Ordered accordingly. 15. The next question now crops up for our consideration is, whether the accused, after the conviction/sentence having been set aside, deserves the concession of bail as prayed for, as he is languishing in the jail for the last about 13 years and his present status now being of an under trial prisoner only and not a convict, the seriousness of the charge if taken into consideration, he does not deserve the concession of bail but looking at the long incarceration period of 13 years, which he has already undergone, makes him entitled for the said relief. Considering all these aspects, we direct that the accused shall be released on bail on his furnishing bail bond to the tune of Rs.25,000/- (Rupees Twenty Five Thousand) with two sureties of the like amount to the satisfaction of the Trial Court itself. 16. Considering all these aspects, we direct that the accused shall be released on bail on his furnishing bail bond to the tune of Rs.25,000/- (Rupees Twenty Five Thousand) with two sureties of the like amount to the satisfaction of the Trial Court itself. 16. The learned trial court is directed to wrap-up the trial of the case within a period of six months positively from the date of receipt of the copy of the judgment. 17. The appeal on hand stands disposed of in the aforesaid terms. 18. Before parting with the judgment, we would record our anguish with regard to the trials conducted by the learned Trial Courts. Exceptions apart, in most of the cases noticed by us in a recent past, the learned trial Judges are not aware about the procedure to be adopted under Criminal Procedure Code, 1973 (Cr.P.C.) and they adopt their own easy way to wrap-up the trials. Public Prosecutors and Judicial Officers owe a greater responsibility to ensure compliance with law in a criminal trial. Inefficiency and callousness on their part is bound to shake the faith of the society in the system of administration of criminal justice. Any lapse on their part, such as the one, which has occurred in the instant case, is bound to jeopardize the trial and it can even result into avoidable acquittal. The way criminal trials are conducted in this part of the country are really shocking. Such type of casual approach is not at all called for. The duty of the Court is to see that not only law is protected, but also the societal and collective interest is safe-guarded. 19. The way criminal trials are conducted in this part of the country are really shocking. Such type of casual approach is not at all called for. The duty of the Court is to see that not only law is protected, but also the societal and collective interest is safe-guarded. 19. A question is thus posed; is it justified for any conscious judge to ignore the statutory command and give an indecent and uncalled burial to trial or orderly society thrives on rule of law, which includes 'fair trial' for the accused as well as the prosecution, as observed by Hon’ble Supreme Court in a very recent case titled Vinod Kumar versus State of Punjab [Criminal Appeal No.554 of 2012] decided on 21st January, 2015, wherein their Lordships, while recording anguish over the unwarranted adjournments sought by the counsel conducting the trial and unfathomable reasons for accepting such prayers for adjournments by the learned Trial Courts, despite statutory commands under Section 309 Cr.P.C., took it as a continuous ailment and commanded the learned Trial Judges not to defer the cross examination of witnesses at pleasure or at the leisure of the defence counsel. Copies of the said judgment have already been circulated to all the Trial Judges of State for strict compliance. 20. It would not be out of place to mention here that in another case originating from one of the Districts of the State of Jharkhand titled Krit Sao Vs. State of Jharkhand [Cr. (Jail) Appeal (D.B.) No.504 of 2002], while noticing gross irregularity in examination of the accused under Section 313 Cr.P.C., the Court set aside the conviction of the accused after 14 years vide judgment dated 10.03.2015 and remitted the case to the Trial Court, copies thereof have also been circulated to all the Judicial Officers. Registry is directed to circulate the copy of this judgment also to the Trial Judges in all the 23 Judgeships of the State. We feel that it would be enough to say 'Awake! Arise!' 21. One set of the copy of this judgment shall also be sent to the Director, State Judicial Academy Jharkhand so that in any working session(s), the Judicial Officers are made aware of procedural aspects so as to avoid any lapse on their part while conducting criminal trials. Public Prosecutors can also be trained in this regard by the State Judicial Academy. 22. Public Prosecutors can also be trained in this regard by the State Judicial Academy. 22. Registrar General of this Court be intimated of this judgment for compliance without any delay.