Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 383 (JHR)

Khora Bouri v. State of Jharkhand

2016-02-25

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : 1. This criminal appeal has been directed against the judgment of conviction and order of sentence dated 22nd May, 2007 and 24th May, 2007, respectively, passed by learned 2nd Additional Sessions Judge, Jamtara in connection with Sessions Case No. 102 of 2003/18 of 2004, corresponding to G.R. No. 56 of 2003, arising out of Jamtara, Nala P.S. Case No. 11 of 2003, whereby sole appellant has been held guilty for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The fact, emerging from the first information report lodged by Mantu Bouri, is that on 23rd February, 2003, at about 10:00 a.m., victim Rekha Bouri (daughter of the informant) left home to see her mother towards road side, but did not return home alive. When wife of the informant returned home from the market, she was asked whereabouts of Rekha, but she expressed her ignorance. A search was made by the parent but they failed to trace out Rekha. On 25th February, 2003, at about 3:00 p.m. Batu Bouri, wife of Jadu Bouri, informed that she had seen dead body of Rekha Bouri, lying on Hasi Hillock. Receiving such information, the informant along with his relatives went to the place of occurrence and found dead body of Rekha in naked condition. Blood was oozing from her private part. Some lower parts of the body were burnt. Her undergarment was also near the place. The matter was reported to police. The informant has raised suspicion against appellant-Khora Bouri and co-accused Gorachand Bardhan, who had tried to outrage the modesty of Rekha Bouri on earlier occasion. On the basis of the statement of Mantu Bouri, recorded by Sub Inspector of Police-Arbind Kumar Sinha, Jamtara, Nala P.S. Case No. 11 of 2003 dated 25th February, 2003 under Sections 302, 201 and 34 of the Indian Penal Code was registered. Later on Section 376 of the Indian Penal Code by order dated 27th February, 2003 was also added. 3. Co-accused Gorachand Bardhan could not be apprehended, but the appellant-Khora Bouri was arrested and he confessed his guilt before the witnesses and the police. The confession of the appellant was recorded by the police and he was also produced before the Magistrate and again confessional statement under Section 164 Cr.P.C. of the appellant was recorded. 3. Co-accused Gorachand Bardhan could not be apprehended, but the appellant-Khora Bouri was arrested and he confessed his guilt before the witnesses and the police. The confession of the appellant was recorded by the police and he was also produced before the Magistrate and again confessional statement under Section 164 Cr.P.C. of the appellant was recorded. On the basis of confession made before police, one cotton towel used for strangulating the deceased, was recovered. The police after due investigation submitted charge sheet against the appellant under Sections 376/302/201/34 of the Indian Penal Code. Accordingly, cognizance was taken and case was committed to the court of Sessions and registered as Sessions Case No. 102 of 2003. 4. Charges under Section 376(2)(G), 302/34 and 201/34 of the Indian Penal Code were framed to which the appellant pleaded not guilty and claimed to be tried. To substantiate the charges, prosecution has examined altogether fourteen witnesses, including the doctor and the informant. The Investigating Officer has not been examined. Learned Additional Sessions Judge, placing reliance on the evidence and documents available on record, held the appellant guilty for the offence punishable under Section 302/34 of the Indian Penal Code and inflicted sentence as indicated above. 5. Learned counsel for the appellant has assailed the impugned judgment mainly on the ground that the Trial Judge has committed gross error by holding the appellant guilty for the offence punishable under Section 302/34 of the Indian Penal Code. The judgment of conviction and sentence is perverse and cannot be upheld. It is submitted that confession recorded by the police is not admissible in law. The evidence of P.W.6-Kamal Bouri is not reliable. Learned Judicial Magistrate, who had recorded confessional statement of the appellant under Section 164 Cr.P.C., has not complied with the required provision and precaution while recording confession of an accused. He did not follow the guideline laid down by the Hon'ble Supreme Court in the case of Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, reported in (2011) 2 SCC 490 . It is further pointed out that no direct evidence is available on record and Trial Judge has recorded the judgment of conviction on the confession of appellant. Republic of India, reported in (2011) 2 SCC 490 . It is further pointed out that no direct evidence is available on record and Trial Judge has recorded the judgment of conviction on the confession of appellant. Surprisingly enough the incriminating circumstance i.e. confession of the appellant was not questioned to the appellant in his statement recorded under Section 313 Cr.P.C. In this context, learned counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh Vs. Mohd. Iqram & Anr. reported in (2011) 8 SCC 80 . 6. So far as the evidence on record is concerned, it is submitted that P.Ws.1, 5 & 6 are mother, father and grand father, respectively, of the deceased. P.Ws.1 and 2 have supported the case what was made out by them in the first information report. Admittedly, they are not the eyewitnesses and they had not seen the occurrence. These two witnesses have raised suspicion against the appellant because according to them the appellant had earlier tried to outrage the modesty of deceased. Kamal Bouri happens to be grandfather of the deceased. The facts brought by him on record should not be believed on any stretch of imagination. He says that he had seen the deceased- Rekha Bouri, standing at a place where the appellant and co-accused Gorachand Bardhan had been consuming liquor. When he asked Rekha to accompany, she refused and said that she will be coming with her mother. The place where P.W.6 had seen Rekha is place from where dead body of Rekha was recovered. According to P.W.5, to reach to the place of occurrence from the house of the informant, it would take an hour's time. According to the evidence on record, the place from where dead body was recovered is situated within Hasi Hillock Forest. No specific evidence has been brought on record, but inference could be drawn that the place where dead body of deceased was lying must be a lonely place, away from the population and common road. Thus it could not be said, there was no occasion for Kamal Bouri (P.W.6) to move from that place and for that no reason has been assigned by him. Thus it could not be said, there was no occasion for Kamal Bouri (P.W.6) to move from that place and for that no reason has been assigned by him. Most surprising fact is that the deceased was found missing from her house from 23rd February, 2003, the parent got worried and they made a search, but P.W.6, who is grandfather of the deceased, did not disclose this fact to P.Ws.1 and 5 that he had seen Rekha in company of the appellant and co-accused Gorachand Bardhan. In Para-6, contradiction has been taken from the mouth of P.W.6, but due to non-examination of the Investigating Officer, that could not be referred whether such statement by P.W.6 was given before the police under Section 161 Cr.P.C. or not. Therefore, aforesaid statement of P.W.6 given in Para-1 of his deposition is required to be discarded from any consideration. If it is discarded from any consideration, the story of last seen goes away. 7. Now the question remains to be answered whether confession before police can be the basis of recording conviction? Certainly, answer would be negative. Learned Trial Judge has then placed reliance on the confessional statement of the appellant recorded under Section 164 Cr.P.C. No conviction can be recorded only on the basis of confession made by accused, if it is not being corroborated by cogent evidence and that cogent evidence may be circumstantial or direct. Again it is pointed out that aforesaid incriminating circumstance on the basis of which conviction has been recorded was not put to the appellant under Section 313 Cr.P.C. to give his explanation. Therefore, the judgment of conviction and sentence recorded by the Trial Judge is liable to be set aside on this score alone. 8. Learned A.P.P. has opposed the argument and submitted that chain of circumstantial evidence is complete and that chain of circumstantial evidence unerringly points towards guilt of the appellant, who has committed ghastly crime by ravishing a girl of aged 14 years and after committing rape murdered her. The appellant and co-accused Gorachand Bardhan, on earlier occasion, prior to the occurrence, had tried to outrage the modesty of deceased and that was brought to the notice of both the family. Parent of the appellant and co-accused were cautioned. The deceased was missing from her house. She was seen by P.W.6 in the company of the appellant. The appellant and co-accused Gorachand Bardhan, on earlier occasion, prior to the occurrence, had tried to outrage the modesty of deceased and that was brought to the notice of both the family. Parent of the appellant and co-accused were cautioned. The deceased was missing from her house. She was seen by P.W.6 in the company of the appellant. The appellant has confessed his guilt before the witnesses and the police and on the basis of confession cotton towel used for strangulating the deceased was recovered. The appellant further confessed his guilt before the Magistrate and the statement was recorded under Section 164 Cr.P.C. The doctor R. P. Singh, P.W.7, had conducted autopsy on dead body of Rekha Bouri and injuries which he had noticed on the person of the deceased roaringly suggest that the deceased was subjected to rape before her murder. The injuries on both breasts, shoulder and laceration on vagina were noticed. Cause of death was asphyxia as a result of throttling. The cumulative facts of these circumstantial evidence lead unmistakably towards the guilt of the appellant and he has rightly been held guilty. 9. We have heard rival submissions of learned counsel for the parties and perused the lower court record and gone through the evidence and documents available on record. The offence committed is certainly serious because the girl, aged 14 years, was ravished and murdered. But the question arises, whether the prosecution has brought sufficient evidence on record to hold the appellant guilty for committing alleged crime? The evidence available on record indicates that daughter of the informant was found missing from 23rd February, 2003 and the dead body was recovered from Hasi Hillock Forest on 25th February, 2003. Batu Bouri, wife of Jadu Bouri had seen the dead body first and she had informed about location of the dead body to informant and his family members. Batu Bouri has not been examined. P.W.1-Archana Bouri happens to be mother of the deceased and practically she is an hearsay witness. She has supported the story brought by the informant in the first information report. She also supports the fact that the appellant and co-accused Gorachand Bardhan on earlier occasion had tried to outrage the modesty of deceased, but the fact remains, whether she had seen the occurrence or not. She has supported the story brought by the informant in the first information report. She also supports the fact that the appellant and co-accused Gorachand Bardhan on earlier occasion had tried to outrage the modesty of deceased, but the fact remains, whether she had seen the occurrence or not. The only circumstance indicates the appellant is that the appellant and co-accused Gorachand Bardhan on earlier occasion had tried to outrage the modesty of Rekha. Gautam Bouri-P.W.2, Haradhan Bouri-P.W.3, Lakhan Bouri-P.W.4 and Mantu Bouri-P.W.5 (informant) have also repeated same fact in their depositions in Court. The aforesaid witnesses have not mentioned the date on which the appellant or co-accused Gorachand Bouri had tried to outrage the modesty of Rekha. Those incidents were never reported to the police. Even assuming it to be correct that it was the motive behind the occurrence and the appellant and co-accused Gorachand Bardhan were intending to establish sexual relation with the deceased and the postmortem report suggest that the deceased was subjected to rape before her death, the facts remain that no conviction has been recorded under Section 376 of the Indian Penal Code. No suggestion was given by P.W.7 that deceased was subjected to rape prior to her death. No counter appeal has been preferred by the State against finding of acquittal recorded under Section 376(2)(g) of the Indian Penal Code. Considering all these aspects of the matter, the motive which has been assigned by the witnesses in their depositions in Court cannot be used against the appellant. 10. We have also made effort to find out, whether the story of last seen, as brought on record by P.W.6, can be believed? P.W.6 happens to be grandfather of the deceased. In the preceding paragraphs, it is indicated that place of occurrence where dead body was found is situated within Hasi Hillock Forest. According to statement of P.W.5, it would take an hour's time for reaching to the place from the house of the informant. The place of occurrence where the dead body was lying was not surrounded by population. It is also unknown to the record that any road or village Path was passing from that place. P.W.6 has also not explained what was the occasion for him to go to that place. The place of occurrence where the dead body was lying was not surrounded by population. It is also unknown to the record that any road or village Path was passing from that place. P.W.6 has also not explained what was the occasion for him to go to that place. Now coming to statement which P.W.6 has given in Para-1 of his examination-in-chief, he says that the deceased was standing where the appellant and co-accused Gorachand Bardhan were consuming liquor. If it was the fact then story of making an attempt to outrage the modesty of deceased by the appellant and co-accused Gorachand Bardhan cannot be relied upon. The deceased did not disclose to her grandfather-P.W.6 that she was brought by the appellant to that place under any compulsion. P.W.6 says that she was standing near the place. When he asked her to accompany, she refused and said that she would be coming with her mother. If the statement of P.W.6 to this extent is admitted to be correct then inference could be drawn that presence of the deceased with the appellant and co-accused Gorachand was cordial. We do not agree to accept such statement of P.W.6 for another reason that he did not disclose this fact to parent of deceased. He did not say to P.W.5 that he had seen Rekha in the company of the appellant and co-accused Gorachand Bardhan. The defence counsel has taken contradiction from mouth of P.W.6 in Para-6 and suggested that he had not given that statement before the police. Again due to non-examination of the Investigating Officer, it could not be affirmed, whether P.W.6 had given statement that under Section 161 Cr.P.C. or not. For the reasons assigned above, we reject the story of last seen, brought on record by P.W.6. 11. It is settled law, only on the basis of confession of accused, he cannot be held guilty for the offence committed. According to prosecution case, the appellant after his arrest had confessed his guilt before the witnesses and the police and that was reduced to writing. That statement has formally been proved by P.W.9. The Investigating Officer has not been examined. The appellant was produced before the Magistrate and his confessional statement was recorded under Section 164 Cr.P.C. Now that is the only piece of evidence left to be considered. That statement has formally been proved by P.W.9. The Investigating Officer has not been examined. The appellant was produced before the Magistrate and his confessional statement was recorded under Section 164 Cr.P.C. Now that is the only piece of evidence left to be considered. It appears that the learned Trial Judge for holding the appellant guilty has admitted part of the confession correct and rejected rest of the confession. What we mean to say is that confession on the point of rape has not been accepted. The part of the confession which speaks about murder of the deceased has been admitted. No sound reasoning has been given as to why part of the confession is accepted for holding the appellant guilty for the offence of murder and part of the confession regarding commission of rape has been rejected. Another blunder which the learned Trial Judge has committed is that he did not put any question to the appellant in his statement recorded under Section 313 Cr.P.C. that he had confessed his guilt before the police and also before the Magistrate. 12. We are having adversial system of adjudication in our country. Both sides are given equal opportunity to place all their cards before the Court. The prosecution as well as defence are given equal opportunity to bring their evidence on record. The criminal trial commenced from the date of framing of charge and the purpose of framing of charge is to make the accused acquaint about the charges, which the prosecution intends to prove against him during trial. The charge is framed on the basis of evidence collected during investigation. Framing of charge must be so clear that it should not cause any prejudice to the accused in making his defence during trial. After the prosecution evidence is closed, the accused is examined under Section 313 Cr.P.C. Fairness is the essence of judicial system in India. Again to apply the principle of fairness, all the incriminating circumstances brought by the prosecution during trial to prove accusation are required to be brought to the notice of accused in the form of questions so that he may able to explain the aforesaid incriminating circumstance/evidence brought against him. It is the duty of the court, rather a Court is under legal obligation to put all the incriminating circumstances before the accused and solicit his response. It is the duty of the court, rather a Court is under legal obligation to put all the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the Court and compliance of corresponding right on the accused to have an opportunity to offer an explanation for such incriminating material appearing against him. Here in the case at hand, learned Trial Judge has not put any question to the appellant that he had confessed his guilt before the police or before the Magistrate. Since this opportunity was not given to the accused to explain, that confession available on record cannot be used against him for holding him guilty. In this context, the judgment of the Hon'ble Supreme Court in the case of Mohd. Iqram & Anr. (Supra), referred by the learned counsel for the appellant is relied upon. 13. Before parting with we feel it desirable to record that the prosecution has not discharged its obligation sincerely and the public prosecutor was negligent in discharge of his duty by not giving suggestion to the doctor who conducted postmortem examination on the dead body of Rekha that antemortem injuries appearing on breast, shoulder, laceration noticed on vagina are suggestive of a fact that the deceased before murder was subjected to rape. Such callous approach of Public Prosecutors are required to be checked and for that drawing up attention of Director, Prosecution, State of Jharkhand is essential. 14. While hearing criminal appeals, we have experienced that our Judicial Officers do not pay proper attention to the framing of charges and the examination of the accused under Section 313 Cr.P.C., the two very important stages in a criminal trial. This attitude of Judicial Officers was noticed by the Hon'ble Supreme Court in the case of Sajjan Sharma Vs. State of Bihar, reported in (2011) 2 SCC 206 , Para-14. Para-14 of the said judgment is reproduced herein below:- “14. We are constrained to say that this is not an isolated case but it is almost a stereotype. It is our experience that in criminal trial in Bihar no proper attention is paid to the framing of charges and the examination of the accused under Section 313 of the Code of Criminal Procedure, the two very important stages in a criminal trial. It is our experience that in criminal trial in Bihar no proper attention is paid to the framing of charges and the examination of the accused under Section 313 of the Code of Criminal Procedure, the two very important stages in a criminal trial. The framing of the charge and the examination of the accused are mostly done in the most unmindful and mechanical manner. We wish that the Patna High Court should take note of the neglectful way in which some of the courts in the State appear to be conducting trials of serious offences and take appropriate corrective steps.” In the light of the judgment of the Hon'ble Supreme Court in the case of Sajjan Sharma (Supra), we direct the Registrar General, Jharkhand High Court to seek consent of Hon'ble the Chief Justice, Jharkhand High Court for circulating the judgment pronounced by us in this criminal appeal to the Director, Judicial Academy, Jharkhand; Director, Prosecution, State of Jharkhand and also to all the Principal District & Sessions Judges for taking appropriate steps. 15. In view of discussions made above, laches committed on the part of the prosecution as well as error committed by Trial Judge in appreciating the evidence and following the principle for recording statement under Section 313 Cr.P.C., we have left with no option but to set aside the impugned judgment of conviction and order of sentence dated 22nd May, 2007 and 24th May, 2007, respectively, passed in connection with Sessions Case No. 102 of 2003 and 18 of 2004. Accordingly, the appeal stands allowed. The appellant, who is in custody in connection with Sessions Case No. 102 of 2003 and 18 of 2004, is directed to be released forthwith, if not wanted in any other case and for that the convicting/successor court shall issue appropriate direction, if needed. Appeal allowed.