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2017 DIGILAW 732 (JHR)

Prem Surin v. State Of Jharkhand

2017-04-20

ANANDA SEN, PRADIP KUMAR MOHANTY

body2017
JUDGMENT Ananda Sen, J. (C.A.V.) - Both these appeals, arise out of the same impugned judgment, were heard together and are being disposed of by this common judgment. 2. These appeals are directed against the judgment of conviction and order of sentence dated 28.04.2005 and 30.04.2005 respectively, passed in Sessions Trial No. 80 of 2003, whereby both the appellants, having been found guilty for committing murder of a minor girl aged about seven years, namely Payal Kumari Pal, were convicted for the offences under Sections 302/34 of the Indian Penal Code, and thereby, they were sentenced to undergo imprisonment for life. The case of the prosecution, as per the informant Sharad Chandra Pal, is that on 18.12.2002 at about 03.00 P.M. his seven year old minor daughter Payal Kumari Pal (deceased) after returning from her school, went out to play with her friends. When she did not return home even by 06.00 P.M, the informant and other family members went in search of her at all possible places but they could not find any trace of the girl. On the next day, i.e. 19.12.2002, when the girl was not found, a missing report was lodged at the police station in the afternoon and a photograph of the girl was also given to the police. Thereafter, the informant again started searching his daughter along with the villagers. It is stated, that in course of search, when some young boys of the village reached near the Orchard of Kishore Kerketta, he did not allow them to go towards the Orchard, as a result of which they became suspecious. On this information, the informant along with several persons of the village went to the Orchard of Kishore Kerketta. It is alleged that on seeing the villagers, Kishore Kerketta, his mother Bedonika Kerketta (appellant in Cr. Appeal No.605/2005) and another person began to flee. They were chased by the villagers but the third person managed to escape. Kishore Kerketta and his mother were caught by the villagers. It is alleged that on seeing the villagers, Kishore Kerketta, his mother Bedonika Kerketta (appellant in Cr. Appeal No.605/2005) and another person began to flee. They were chased by the villagers but the third person managed to escape. Kishore Kerketta and his mother were caught by the villagers. On inquiry, both of them confessed that in order to propitiate the Gods for good harvest, they had to sacrifice an unmarried boy or girl and, accordingly, they had performed Puja at 10 'O'' Clock in the morning and had sacrificed the girl Payal Pal and concealed her dead body by the side of the Orchard behind the Tamarind tree near the river and they had intended to bury the dead body in the night. On the pointing out by the accused persons, when the informant and other villagers went to the place shown by the accused, they saw the dead body of the deceased Payal Pal lying on the ground with a heavy stone placed on her head. On seeing the dead body, the villagers became outraged and assaulted Kishore Kerketta and, thereafter, they were taken by the villagers to the police station where the fardbeyan of the informant was recorded. Kishore Kerketta, who sustained grievous injuries because of the assault by the villagers, succumbed to his injuries. On 20.12.2002 the accused Prem Surin was apprehended by the villagers near the Orchard of Kishore Kerketta and on inquiry he confessed his guilt and stated that when the girl was being killed by Kishore Kerketta and Bedonika Kerketta, he had caught the feet of the girl and later, the victim''s blood was collected in a leaf vessel and buried under the ground below the Water Pump of the Orchard. 3. On the basis of the said written report, Manoharpur P.S. Case No. 54 of 2002 was registered, against Kishore Kerketta, his mother Bedonika Karketta and one unknown, for the offence punishable under Sections 302, 201/34 of the Indian Penal Code. 4. After completion of investigation, charge sheet was filed on 31.01.2003 in the Court of the Chief Judicial Magistrate under Section 302/34 of the Indian Penal Code against the accused persons. After complying all the provisions of law, the case was committed to the Court of Sessions for trial. 4. After completion of investigation, charge sheet was filed on 31.01.2003 in the Court of the Chief Judicial Magistrate under Section 302/34 of the Indian Penal Code against the accused persons. After complying all the provisions of law, the case was committed to the Court of Sessions for trial. Charges were framed against both these appellants on 20.05.2003 and they were put on trial as they pleaded not guilty of the charges and claimed to be tried. The case of the defence, is that they are innocent and have been intentionally implicated by the informant and other co-villagers to escape punishment for committing murder of Kishore Kerketta and to prevent the accused persons from deposing as witnesses to the murder of Kishore Kerketta. 5. The prosecution, in order to prove its case, examined altogether nineteen witnesses and also exhibited several documents. PW1 Sharad Chandra Pal, is the informant and the father of the deceased girl. In his evidence, he has narrated the same story as has been stated in the fardbeyan. 6. The evidences of PW2 Aditya Chandra Bhanj, PW3 Ashwini Kumar Pal, PW4 Arvind Aditya, PW5 Sunil Kumar Vaghel, PW6 Uday Kishore Singhdeo, PW8 Chandra Bhana Prasad, PW9 Manoj Kumar Aditya and PW10 Rajesh Kumar Pal are almost identical. They all have supported the case of the prosecution and admitted the version of the informant that on 18.12.2002, the girl Payal Kumari Pal went missing since afternoon and could not be traced out in spite of search and to that effect a missing report was lodged at the police station on the next day. They further stated that on the next day, i.e. 19.12.2002 in the evening, some boys of the village had gone in search of the girl towards the Orchard of Kishore Kerketta but they were not allowed to search and then the matter was reported to the informant. The informant along with the villagers went to the Orchard of Kishore Kerketta where on seeing the villagers, Kishore Kerketta, his mother Badonika Kerketta and one another persons identified later as Prem Surin began to run away but the villagers caught hold of Kishore Kerketta and his mother while the third person succeeded in fleeing. The informant along with the villagers went to the Orchard of Kishore Kerketta where on seeing the villagers, Kishore Kerketta, his mother Badonika Kerketta and one another persons identified later as Prem Surin began to run away but the villagers caught hold of Kishore Kerketta and his mother while the third person succeeded in fleeing. They further affirmed that on inquiry, both Kishore Kerketta and his mother Bedonika Kerketta, in the presence of these witnesses, had confessed that they had killed and sacrificed the daughter of the informant Payal in the hope of obtaining good harvest. They further stated that both the accused took the villagers near a Tamarind tree situated adjacent to the Orchard where these witnesses saw the dead body of the deceased girl Payal lying on the ground with bleeding injuries with a heavy stone kept on her head. In their respective cross-examinations, they have reaffirmed that Kishore Kerketta and his mother Bedonika Kerketta had confessed their guilt in presence of the villagers. They also admitted that the villagers had assaulted Kishore Kerketta and that Kishore Kerketta had succumbed to the injuries. 7. PW7 Chandra Devi, the mother of the deceased girl and wife of the informant, has supported the case of the prosecution in respect of missing of the deceased girl since the evening of 18.12.2002 and the recovery of the dead body on the next day. PW12 Sanjay Kishore Singhdeo and PW13 Madhusudan Aditya are the witnesses to the inquest. Both of them have stated that on the evening of 19.12.2002 the police had inspected the dead body of Payal near the Orchard of Kishore Kerketta and prepared an inquest report on which they put their respective signatures. 8. PW14 Santosh Kuarm Vaghel, PW15 Ashok Kumar Vaghel, PW16 Subir Kumar Vaghe and PW17 Ladura Surin are the hearsay witnesses. They have stated that they heard that the informant''s daughter Payal Kumari Pal went missing from her house since the evening of 18.12.2002 and on the next day her dead body was found near the Orchard of Kishore Kerketta. They also stated that they heard that Kishore Kerketta, his mother Bedonika Kerketta and their servant had killed the girl as a sacrifice. 9. PW11 Dr. They also stated that they heard that Kishore Kerketta, his mother Bedonika Kerketta and their servant had killed the girl as a sacrifice. 9. PW11 Dr. Umendra Prasad is the Doctor, who conducted the Post Mortem examination of the deceased and found the following injuries on the person of the deceased :- " External Injuries : "(i) Blood clot present on face & scalp (frontal side). Eyes closed. (ii) Lacerated wound on frontal bone measuring 2" x 1" up to the brain matter. (iii) Fracture of right maxilla with lacerated wound above the right lip measuring 2" x " x ". (iv) Bruise below the right eye measuring 2" x " . Ligature mark on the middle of the neck, encircle the neck. Black in colour. (Superficial). Internal injuries : Skull-Blood in cranial cavity of frontal bone. Brain matter lacerated. On the neck-There was no blood in the trachea and larynges. On Chest-There was no blood in chest cavity. Heart-Both chambers of the heart were empty. Liver and Lungs-N.A.D. Stomach-Undigested rice present. Bladder-Empty. As per the opinion of the Doctor, the time elapsed since death between 12 to 48 hours prior to the post mortem examination and the death was caused due to haemorrhage and shock because of the antemortem injury on the skull, caused by the hard and blunt substance. The Doctor has proved his writing and signature on the post mortem report. 10. PW18 Baburam Bhagat, is a S.I. of police. He, in his evidence, has stated that investigation of the case was entrusted to him after transfer of the Investigating Officer of this case. He has proved the writing and signature of the S.I. S.K. Singh on the fardbeyan, FIR and on the inquest report. He further stated that the investigation of the case was completed by the previous Investigating Officer on all issues therefore, he did not record any further statements of any witness and submitted the charge sheet in the case as per the instruction of the Superintendent of Police, who had supervised the investigation. PW19 Munni Pandey is a Constable of police and a formal witness by whom the prosecution had adduced in evidence the case-diary. The Investigating Officer of the case, has not been examined by the prosecution as his whereabouts were not available to them. 11. The prosecution has also exhibited several documents in this case. PW19 Munni Pandey is a Constable of police and a formal witness by whom the prosecution had adduced in evidence the case-diary. The Investigating Officer of the case, has not been examined by the prosecution as his whereabouts were not available to them. 11. The prosecution has also exhibited several documents in this case. Ext.1 and 1/1 is the signatures of the informant on the fardbeyan and that of the witness on the fardbeyan. Exts. 2 and 2/1 is the signatures of the witnesses on the carbon copy of the inquest report. Ext. 3 is the Post Mortem Report. Ext.4 is the fardbeyan of the informant. Ext.5 is the formal FIR of the case. Ext. 6 is the inquest Report. Ext.7 is the signature of S.I. S.K. Singh on the FIR, Ext.8 is the signature of S.I. S.K. Singh on the fardbeyan and. Ext.9 is the case diary. 12. After closure of evidence of the prosecution, statement of the accused was recorded under Section 313 of the Code of Criminal Procedure. The accused did not lead any evidence in their defence. 13. After analysing the evidence, the trial court vide its judgment dated 28.04.2005 and 30.04.2004 respectively, convicted both these appellants/accused for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced them to undergo imprisonment for life. 14. Being aggrieved by the said judgment of conviction and sentence, the appellants have preferred these instant appeals. 15. We have heard learned counsel appearing for the appellants and learned Addl. Public Prosecutor appearing for the State. 16. Learned counsel appearing for the appellants submits that there are no eyewitnesses to the said occurrence and on the basis of the circumstantial evidence the appellants have been found guilty and has been convicted. Learned counsel further submits that the confession of the appellants cannot be a ground for conviction. He further submits that from the evidence adduced on behalf of the prosecution, it is clear that the main accused was Kishore Kerketta, who had murdered the minor child of the informant and not these two appellants, thus the conviction of these appellants is bad. Learned counsel further submits that appellant Prem Surin (in Cr. Appeal No. 667/2005) was not even present at the place of occurrence when the incident had taken place and in fact, he was arrested on the next day of the occurrence, which proves his innocence. Learned counsel further submits that appellant Prem Surin (in Cr. Appeal No. 667/2005) was not even present at the place of occurrence when the incident had taken place and in fact, he was arrested on the next day of the occurrence, which proves his innocence. He lastly submits that the chain of circumstances was not complete, even then the appellants were convicted. 17. On the other hand, learned Addl. P.P. submits that the only conclusion after scrutinizing the evidence will lead to the guilt of the appellants. He submits that beyond all reasonable doubts the appellants can be held to be guilty. He further submits that the witnesses have categorically stated that the appellants had made extra judicial confession before the villagers leading to recovery of the dead body of the child. He further submits that the chain of circumstances is complete and therefore, the appellants have rightly been convicted and sentenced. 18. The 7 years minor daughter of the informant went to play with her friends and when she did not return, the informant and other family members searched her but could not find her. On the next day, the missing report of the child was lodged and the search continued. In course of search, some young boys of the village reached near the orchard of Kishore Kerketta but they were stopped. Then suspicion arose and the informant and others were informed. Several villagers went to the orchard of Kishore Kerketta. In the orchard three persons were found; Kishore Kerketta, his mother Bedonika Kerketta (appellant in Cr. Appeal No. 605/05) and the third person, managed to escape. The third person was Prem Surin (appellant in Cr. Appeal No. 667/05), who was caught by the villagers on the next day. Kishore Kerketta and her mother was caught and they confessed before the villagers that to propitiate the God for good harvest they have sacrificed the girl and concealed her dead body by the side of the Tamarind Tree. The villagers went near the Tamarind tree where the dead body of the girl was found. They also confessed that the blood was kept in a leaf vessel and was buried below the water pump, which was also recovered. Till this point, there is no evidence that these persons were even assaulted by the villagers. Thus, the confession made before the villagers is voluntary and without any threat or coercion. They also confessed that the blood was kept in a leaf vessel and was buried below the water pump, which was also recovered. Till this point, there is no evidence that these persons were even assaulted by the villagers. Thus, the confession made before the villagers is voluntary and without any threat or coercion. The witnesses PWs1, 2, 3, 4, 5 and 6 have categorically stated that they, along with others, went to the Orchard of Kishore Kerketta and on seeking them one person (Prem Surin) fled from the place of occurrence and Bedonika Kerketta tried to flee. They also stated that they manage to catch these two appellants and both these appellants thereafter confessed their guilt and on their pointing out, the dead body of the minor girl was recovered. Both these appellants confessed before these villagers that they sacrificed the girl. Thus, from the aforementioned evidence it is clear that the confession was not made before the police. The confession was made before the Villagers and on the said confession the dead body was recovered and, thereafter, the police came to the place of occurrence. These witnesses have specifically stated that the confession were made before them. In fact, the witnesses have stated that Kishore Kerketta had led them where the dead body was concealed. PW1 also stated that both; Kishore Kerketta and Bedonika Kerketta (appellant in Cr. Appl No. 605/05) confessed that they have sacrificed the child. There was several injuries on the person of the deceased. From scrutinizing the entire evidence, we find that the confession before the villagers was voluntary in nature and it is also proved that the dead body of the deceased was recovered at the instance of the appellant Bedonika Kerketta and Kishore Kerketta. 19. It is true that there is no eyewitness to the said occurrence and this is based on circumstantial evidence. In a case of circumstantial evidence, the Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. 20. In the instant case the circumstances are as follows : (i) The minor girl went missing. 20. In the instant case the circumstances are as follows : (i) The minor girl went missing. (ii) During search, when the young boys of the village went near the Orchard of Kishore Kerketta, they were stopped by Kishore Kerketta. (iii) When the villagers went to search the girl near the Orchard of Kishore Kerketta, three persons were there, out of which one person fled away seeing the villagers. The other two could not flee and they were caught by the villagers. (iv) Before the villagers these two appellants confessed that they have sacrificed the daughter of the informant and concealed the dead body near the Tamarind tree. They also confessed that in a leaf vessel, blood was collected and was buried near the water 6 pump. The accused took the villagers and got the body and also the leaf vessel. (v) Role played by each of the accused was stated before the villagers by the accused. (vi) The Doctor found multiple injuries on the person of the deceased. 21. The extra-judicial confession before the villagers in this case, can definitely be taken into consideration. The said confession was not before the police as the police came to the place of occurrence after the confession was made and after the dead body was recovered on the basis of the said confession. The extrajudicial confession if it inspires confidence, definitely can be a ground of conviction. The said confession should be voluntarily and should be truthful and attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by prosecution evidence. 22. The Hon''ble Supreme Court in the case of " Kishore Chand v. State of H.P., reported in (1991) 1 SCC 286 ", at page 294 has held that an unambiguous extra-judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. The Hon''ble Supreme Court in the case of " Vijay Shankar v. State of Haryana, reported in (2015) 12 SCC 644 " has held that for an extrajudicial confession to form the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. 23. The Hon''ble Supreme Court in the case of " Vijay Shankar v. State of Haryana, reported in (2015) 12 SCC 644 " has held that for an extrajudicial confession to form the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. 23. It is well settled that if an extrajudicial confession is supported by a chain of cogent circumstances and corroborated by other evidence, it acquires credibility. In the instant case, nothing has been brought on record to suggest that the said extrajudicial confession was under threat or coercion or it is not voluntary. From the evidence of the witnesses it appear that there is corroboration of the facts as narrated in the extrajudicial confession. Appellant Bedonika Kerketta confessed her guilt along with her son and her son lead the villagers to the place where the dead body of the deceased girl was concealed. They voluntarily before all the villagers, disclosed that they have sacrificed the girl. The appellant Prem Surin in his confession before PW5 clearly stated that he had caught hold of the feet of the child when she was being sacrificed. His confession also corroborates the fact which came to light on confession of the other appellant. The entire facts also suggest that there was common intention of these appellants to commit murder of the child. They jointly restrained the deceased and thereafter, with a common intention, have sacrificed the child. Their confession before the villagers clearly leads to the conclusion that with a common intention they had committed murder of the minor girl child. 24. In view of what has been held above, it can be safely held beyond all reasonable doubt that these two appellants, along with Kishore Kerketta, committed murder of the informant''s child. Since the only conclusion which can be drawn is the appellants are guilty of commission of murder, we find no ground to interfere with the impugned judgment. 25. In the result, both these appeals are hereby dismissed. Appellant Bedonika Kerketta @ Veronika Kerketta, is on bail. Her bail bonds is hereby cancelled and she is directed to be taken into custody for serving out the rest part of the sentence.