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2015 DIGILAW 503 (JHR)

Nibhay Kerketta v. State of Jharkhand

2015-04-21

PRAMATH PATNAIK, R.R.PRASAD

body2015
JUDGMENT :- This appeal is directed against the judgment of conviction dated 24.4.2004 and order of sentence dated 27.4.2004 passed by the then Additional Sessions Judge, FTC-III, Gumla in S.T. No.150 of 2003 whereby and whereunder the court having found the appellants guilty for committing murder of Narmi Kerketta and Rafel Kereketta convicted them for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. 2. The case of the prosecution as has been made out in the Fardbeyan (Ext.4) is that on 12.1.2003 at about 8 a.m, Narmi Kerketta and Rafel Kerketta, mother and father of Jorry Kerketta, informant (P.W.3) had gone to the house of Rase Kerketta for making bundle of straw arranged. Both the appellants had also gone there. After the work was over, all the persons, who were engaged in arranging straw, were served with food and also with haria (rice beer). During that period, some altercation took place in between these two appellants on one hand and the deceased, on the other hand in relation to piece of land which was disputed. At about 4 p.m, Narmi Kerketta and Rafel Kerketta, mother and father of the informant left the house of Rase Kerketta for coming to their house. In that course, when they reached near the house of Rela Kerketta there they found Mangri Kerketta (P.W.2) and Sonamati Kerketta (not examined) sitting. Meanwhile, the appellants, Sawan @ Digu Kerketta and Nibhay Kerketta having knife and tangi respectively came there and started assaulting Rafel Kerketta. Upon seeing this, the informant and other persons, who were there started raising alarm but none of the persons residing in the nearby came over there to rescue Rafel Kerketta. Meanwhile, Rafel Kerketta fled from there. However, he was chased by the accused persons, who caught hold of him and started assaulting him with tangi and inflicting injuries by knife. They also assaulted Narmi Kerketta. The informant and other persons seeing the act of the appellants fled from there but after some time, when they came there, they found both of them dead. 3. However, he was chased by the accused persons, who caught hold of him and started assaulting him with tangi and inflicting injuries by knife. They also assaulted Narmi Kerketta. The informant and other persons seeing the act of the appellants fled from there but after some time, when they came there, they found both of them dead. 3. Information of this occurrence when was received at Kamdara police station, the Officer-in-Charge, Ravindar Kumar along with Lalbabu Raut (P.W.7) came to the village on the next day i.e, 13.1.2003 at 5.30 a.m. where Officer-in-Charge, Ravindar Kumar recorded the Fardbeyan (Ext.4) of the informant Jorry Kerketta (P.W.3).The informant in his fardbeyan made statement that the appellants have killed his father and mother as there had been land dispute in between them. 4. On the basis of Fardbeyan, a case was registered and a formal First Information Report (Ext.8) was drawn. On the same day, i.e. on 13.1.2003 the appellants were arrested from the house and they, as per the case of the prosecution, confessed their guilt and the confession made by them led to recovery of the knife, tangi as well as pant which was seized by the then Officer-in-Charge, Ravindar Kumar under seizure list (Ext.6/1). Subsequently, the Investigating Officer, Lalbabu Raut (P.W.7) took over the investigation. There he seized earth smeared with blood from the place of occurrence under seizure list (Ext.6). He also held inquest on the dead bodies of the deceased Narmi Kerketta and Rafel Kerketta and prepared inquest reports (Exts.5 and 5/1). After holding inquest on the dead bodies, the Investigating Officer sent the dead bodies for post mortem examination which was done by Dr.Ajit Kumar Agrawal (P.W.1). On holding autopsy on the dead body of Narmi Kerketta, he found following anti mortem injuries (i) one incised penetrating wound 3” x 1” x 4” over inter scapular region of right side of back with laceration of posterior aspect of right side of lung with pleura with collection of blood inside thoracic cavity. (ii) one incised wound of about 4” x 1-1/2” x muscle deep over right forearm on extensor surface. (iii) one incised wound of about 2” x 1” muscle deep over middle portion of right forearm. (iv) one incised wound of about 1” x ½” x muscle deep over right wrist. (ii) one incised wound of about 4” x 1-1/2” x muscle deep over right forearm on extensor surface. (iii) one incised wound of about 2” x 1” muscle deep over middle portion of right forearm. (iv) one incised wound of about 1” x ½” x muscle deep over right wrist. (v) one incised wound of about 2-1/2” x 1” bone deep over phalynx of right index finger. (vi) one bruise of about 5” x 4” over right front chest with fracture of 3rd, 4th ribs with laceration of lung and pleura. 5. According to the Doctor, injury no.1 was caused by sharp cutting penetrating weapon like 'Chaku' whereas injury nos. 2, 3, 4 and 5 were caused by sharp cutting weapon like tangi. 6. Doctor issued post mortem examination report (Ext.1) with an opinion that death was caused due to haemorrhage and shock. 7. The said doctor upon holding autopsy on the dead body of Rafel Kerketta found following injuries. (i) one incised wound of about 4” x 2” x 3” i.e, brain deep over right side of occipital region of skull with fracture of occipital bone and laceration of brain matter and meninges with collection of blood inside of thoracic cavity. (ii) one incised wound of about 2-1/2” x 1” x 3-1/2” over lower chest right side at the level of 5th inter canal space with laceration of right pleura and lung with collection of blood inside thoracic cavity. (iii) one bruise 5” x 4”right side of the chest with fracture of 5th and 6th ribs. 8. According to doctor, injury no.1 was caused by sharp cutting weapon like tangi whereas injury no.2 was caused by sharp cutting penetrating weapon like 'chura' and injury no.3 was caused by hard and blunt substance like back portion of tangi. 9. Doctor issued post mortem examination report (Ext.1/1) with an opinion that death was caused on account of shock and haemorrhage due to brain injury. 10. Meanwhile, the Investigating Officer also recorded the statement of the witnesses. After completion of investigation, charge sheet was submitted against the appellants, upon which cognizance of the offence was taken and when the case was committed to the court of sessions, the appellants were put on trial. 11. During trial, the prosecution examined altogether seven witnesses. Of them, P.W.2, Mangri Kerketta and P.W.3, Jorry Kerketta, informant, claimed to have seen the occurrence. 11. During trial, the prosecution examined altogether seven witnesses. Of them, P.W.2, Mangri Kerketta and P.W.3, Jorry Kerketta, informant, claimed to have seen the occurrence. According to them, both the deceased after arranging straw at the house of Rose Kerketta returned back and were sitting at the house of Rela Kerketta, both the appellants came having chura and tangi with them and assaulted both of them, as a result of which, they died. P.W.4, Tanse Kerketta a hearsay witness happens to be the son of the deceased, who has testified that on the day of occurrence, he had gone to Kamdera from where he returned home at about 8 p.m. but before he came home, he was told at Kamdera by Choukidar that his father and mother have been killed by the appellants. P.W.5, Premchand Kerketta and P.W.6, Kamla Prasad Sinha did not support the case of the prosecution and thereby they have been declared hostile. 12. After closure of the prosecution case, when the incriminating evidences were put to the accused persons under Section 313 of the Code of Criminal Procedure, they denied. 13. Thereupon the court having found P.Ws.2 and 3 the eye witnesses to be trustworthy, testimonies of whose getting corroboration from the medical evidence and that the weapon used in the commission of the crime was recovered at the instance of the appellants, recorded the order of conviction and sentence which is under challenge. 14. Mr.A.K.Kashyap, learned Sr. counsel appearing for the appellants submits that though P.Ws.2 and 3 have claimed themselves to be the eye witnesses but if their evidences are scrutinized, it would be found that they had no occasion to see the occurrence. 15. In this regard, learned counsel by referring to the testimony as testified in paragraph 14 of the P.W.2 submits that P.W.2 and P.W.3 had been at the time of occurrence to the house of Premchand Kerketta where they had had meal and also liquor and by the time they returned home, it was dark. Thus, this piece of evidence does indicate that she had no occasion to see the occurrence. Thus, this piece of evidence does indicate that she had no occasion to see the occurrence. Similar is the case with the informant, P.W.3, who has also admitted that she had gone to the house of Premchand Kerketta and returned home but by that time, it was not so dark but if that testimony is read with the testimony of P.W.4, it would appear that P.W.2 and P.W.3 had returned home after 8 O’clock and if that is so, then in no case P.W.2 and P.W.3 can be said to have had any occasion to see the occurrence which, as per the case of the prosecution, had occurred around 4.30 p.m. 16. Further it was submitted that the statement of the informant, P.W.3 has been treated by the prosecution to be fordbeyan but the same in view of the testimony of P.W.2 cannot be taken to be the First Information Report as in the morning itself, P.W.2 and P.W.3 had gone to the police station and had given Fardbeyan which has been reduced in writing but that document had never been brought on the record by the prosecution and thereby an adverse inference be drawn against the prosecution. 17. Further it was submitted that the trial court has based its finding upon the seizure of the weapons used in the commission as it is said that the confession made by the accused persons led to recovery of those materials but the prosecution has utterly failed to establish the said fact that the confession made by the appellants led to recovery of those materials. In this regard, it was submitted that as per the case of the prosecution, it was Ravindar Kumar, the then Officer-in-Charge of Kamdera Police Station, who had recorded confession of the appellants which led to recovery of the materials used in commission of offence. That recovery had been effected by said Ravindar Kumar but the Ravindar Kumar has never been examined by the prosecution and in absence of his evidence, the prosecution cannot be said to have proved that factum that the confession made by the appellants led to recovery of the incriminating articles. Moreover, the said weapon used in the commission of the offence had never been produced in the court nor any report of the Forensic Science Laboratory was ever produced before the court. Moreover, the said weapon used in the commission of the offence had never been produced in the court nor any report of the Forensic Science Laboratory was ever produced before the court. Thus, it was submitted that the prosecution has utterly failed to establish its case that it was the appellants, who had committed murder of two persons. 18. As against this, Mr. Lal, learned counsel appearing for the State submits that P.W.2 and P.W.3, the eye witnesses have categorically deposed that while both the deceased were sitting in the house of Rela Karketta, the appellants came armed with chura and tangi and assaulted them, as a result of which, they died. The manner of occurrence as depicted by the witnesses gets corroboration from the medical evidence as the doctor did find injury being caused by chura as well as tangi. 19. Under the circumstances, the prosecution can certainly be said to have proved its case and hence, the judgment of conviction and order of sentence never warrants to be interfered with. 20. Having heard leaned counsel appearing for the appellants and learned counsel appearing for the State and on perusal of the record, we do find that the case of the prosecution is that both the deceased had gone to the house of Rase Kerketta for arranging straw where the appellants had also gone. There some altercation took place in between the appellants and the deceased. At about 4 O’clock, both the deceased in course of coming back home came to the house of Rela Kerketta where as per the testimonies of the informant P.W.3 and P.W.2 were also present. There the appellants came armed with chura and tangi and assaulted the deceased, as a result of which, the deceased died. However, both the witnesses in their cross-examination did admit that at that time, they had been to the house of Premchand Kerketta (P.W.5) where they had had meal and also liquor. According to P.W.2, by the time he returned home, it was quite dark and it was not easy to identify the persons. However, according to P.W.3, it was not so dark, rather things were visible. 21. According to P.W.2, by the time he returned home, it was quite dark and it was not easy to identify the persons. However, according to P.W.3, it was not so dark, rather things were visible. 21. Taking cue of this piece of evidence, submission has been advanced on behalf of the appellants that they were never the eye witnesses as, according to the prosecution case, occurrence has taken place at 4.30 p.m. Admittedly, both the witnesses P.W.2 and P.W.3 had gone to the house of Premchand Kerketta and after having meal when they returned, it was dark whereas, as per the other witness, it was not quite dark but this situation gets clarified from the evidence of P.W.4, brother of P.W.3, according to whom, he had gone Kamdera on the day of occurrence where they came to know from the Choukidar at Kamdera that his parents have been killed by the appellants. He returned home at about 8 p.m. and as per the evidence recorded at paragraphs 14 and 15, P.W.2 and P.W.3 returned home only when he had arrived home. There appears to be no reason or we do not find any explanation not to accept this piece of evidence of P.W.4. 22. Under the circumstances, we are constrained to hold that P.W.2 and P.W.3 were never the eye witness. 23. Going further in the matter, we do find that P.W.2 has testified that she along with P.W.3 had gone to the police station in the morning and had given statement to the police which was reduced in writing but that piece of document has never been produced by the prosecution. This also creates doubt over the statement made by P.W.3 in her Fardbeyan which has been recorded at 5.30 on 13.1.2003 whereas occurrence is said to have taken place on 12.1.2003 at 4.30 p.m. 24. Furthermore, conviction is also based on the fact that the confession made by the appellants led to recovery of the weapon used in the crime but that fact cannot be said to have been established by the prosecution on account of non-examination of Ravindar Kumar, the then Officer-in-Charge, who had recorded confession of the appellants and had effected seizure of those weapons. In such situation, that cannot be used against the appellants. In such situation, that cannot be used against the appellants. All these facts have never been taken into account by the trial court in right perspective and thereby the trial court committed illegality in recording the judgment of conviction and order of sentence against the appellants. Hence, it is set aside. 25. Consequently, the appellants are acquitted of all the charge and directed to be released forthwith, if not wanted in any other case. 26. Thus, this appeal stands allowed.