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2018 DIGILAW 1487 (JHR)

Kartik Sharma v. State of Jharkhand

2018-07-10

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : H.C. MISHRA, J. 1. Heard learned counsel for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 26th of February, 2013 and the Order of sentence dated 27th of February, 2013, passed by the learned 1st Additional Sessions Judge, Seraikella-Kharsawan, in Sessions Trial No. 127 of 2004, whereby, the appellant has been convicted and sentenced for the offence under Sections 302 / 34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life and fine of Rs. 5,000/- for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Kuldip Singh, the father of the deceased Gurbinder Singh @ Banty Singh, recorded on 18.6.2004 at his house, situated in Adityapur, District Seraikella-Kharsawan. The informant has stated that on 16.6.2004 at about 4.30 P.M., his son was sitting near his house, when a boy, aged about 20-22 years, came on a motorcycle, about whom, the informant learnt that his name was Golu, and the motorcycle was of the appellant Kartik Sharma. The boy told his son that Kartik Sharma and his wife Sudha Devi were calling him. His son went away along with the boy, but de did not return back till 17.6.2004, whereupon, the informant went to the house of Kartik Sharma in search of his son, but he could not get his son there and Golu, Kartik Sharma and his wife were absconding. As such on 17.6.2004, he gave an information at the Police Station about the missing of his son. His son did not return back even on 18.6.2004, thereafter, fardbeyan was given to the police, suspecting that his son was abducted for murder. It is stated that his son was having illicit relationship with the wife of the accused Kartik Sharma, which was within the knowledge of Kartik Sharma, but when the financial condition of his son deteriorated, they wanted to get rid of his son, due to which, he was abducted for murder. It is stated that his son was having illicit relationship with the wife of the accused Kartik Sharma, which was within the knowledge of Kartik Sharma, but when the financial condition of his son deteriorated, they wanted to get rid of his son, due to which, he was abducted for murder. On the basis of the fardbeyan of the informant, Adityapur P.S. Case No. 132 of 2004, corresponding to G.R. No. 448 of 2004, was instituted for the offences under Sections 364 / 120-B of the Indian Penal Code, against Kartik Sharma, his wife Sudha Devi and Golu, and investigation was taken up. During investigation, the police recovered the dead body of the deceased from the courtyard of the appellant. After investigation, the police submitted charge-sheet in this case against the aforesaid accused persons, and also against Amit Kumar, the son of the appellant. It may be stated that out of the charge-sheeted accused persons, only present appellant had faced the trial before the Court below. We are informed that the cases of Amit Kumar and of Golu @ Prakash Singh were split up, as they were found to be juvenile. 4. Upon commitment of the case to the Court of Session, charge was framed against the accused for the offences under Sections 302 / 34 and 302 / 120-B of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course of trial, 14 witnesses were examined in this case, including the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. It may be stated that I.O. has not been examined in this case. 5. Out of the material witnesses, P.W.-9 Abhijeet Kumar and P.W.-10 Purna Chandra Das, are the witnesses to the recovery of the motorcycle from the house of the appellant. P.W.-9 Abhijeet Kumar has stated that the motorcycle was not recovered in his presence. Though P.W.-10 Purna Chandra Das has supported the recovery of motorcycle, but he has not supported the recovery of the dead body of the deceased in his presence. P.W.-11 Vijay Kumar Mahto, is the witness to the inquest report of the dead body and has proved his signature on the inquest report. All these three witnesses have turned hostile on the facts of the case and have not supported the prosecution case at all. 6. P.W.-11 Vijay Kumar Mahto, is the witness to the inquest report of the dead body and has proved his signature on the inquest report. All these three witnesses have turned hostile on the facts of the case and have not supported the prosecution case at all. 6. P.W.-1 Kuldip Singh is the informant of the case. He has stated that Gurbinder Singh was his son. The occurrence is of 16.6.2004 when his son was taken away on a motorcycle by Golu @ Prakash Singh, stating that Kartik Sharma and his wife Sudha Devi had called him. He has stated that the motorcycle was of Kartik Sharma. When his son did not return back, he got a sanha entry made at the Police Station on 17.6.2004 and he gave his fardbeyan to the police on 18.6.2004. He had stated in the fardbeyan that his son was having illicit relationship with the wife of Kartik Sharma and he was in visiting terms with them. He had sent some persons to the house of Kartik Sharma in search of his son, when Kartik Sharma was present in his house and when they again went to the house of Kartik Sharma, the house was found locked and the accused persons had fled away. He has stated that the accused persons, namely, Kartik Sharma, Sudha Devi, their son Amit Kumar and Golu, had abducted his son for murder. He has proved his signature and the signatures of the witnesses on the fardbeyan, which were marked Exhibit-1 series. This witness has stated that on 19.6.2004, the dead body of his son was recovered, concealed under the heap of sand from the house of Kartik Sharma. He has also stated that earlier also the Golu and Amit had assaulted his son. He had seen the dead body of his son. He has identified the accused in the Court. This witness was put to extensive cross-examination, but there is nothing of much importance in his cross-examination. 7. P.W.-2 Vijay Kumar Labh and P.W.-3 Kamta Singh have also supported the case, as stated by the informant. He had seen the dead body of his son. He has identified the accused in the Court. This witness was put to extensive cross-examination, but there is nothing of much importance in his cross-examination. 7. P.W.-2 Vijay Kumar Labh and P.W.-3 Kamta Singh have also supported the case, as stated by the informant. They have stated that the accused was taken away by Golu @ Prakash Singh, stating that Kartik Sharma and his wife had called him and when the deceased did not return, both these witnesses had gone to the house of Kartik Sharma in search of the deceased and when they visited for the first time, Kartik Sharma came out of the house and stated on his own without asking anything, that Banty was not present there. Kartik Sharma was trembling with fear at that time. P.W.-3 Kamta Singh has also stated that he asked Kartik Sharma as to why he was trembling, whereupon, he replied that he was suffering from loose motions and had not taken food for the last two days. Both of them returned back and informed the informant and they were again sent back by the informant to the house of Kartik Sharma for search of his son, when they found the house locked and the accused persons had fled away. These witnesses have also stated that on 19.6.2004, the dead body of the deceased was recovered from the courtyard of the house of the accused Kartik Sharma, buried in the sand. P.W.-3 Kamta Singh has stated that said recovery was made on the basis of the confessional statement of Golu @ Prakash Singh. Both these witnesses have also stated about the illicit relationship of the deceased and the wife of the appellant. 8. P.W.-5 Sarbjeet Kaur is the wife of the deceased and she has also supported the case, as regards the abduction of her husband by Golu, informing that Kartik Sharma and his wife Sudha Devi were calling him and, thereafter, on 19.6.2004, she was informed that the dead body of her husband was recovered from the house of the accused Kartik Sharma. She has also stated that her deceased husband was assaulted earlier also by the accused Amit and Golu. 9. She has also stated that her deceased husband was assaulted earlier also by the accused Amit and Golu. 9. P.W.-6 Sanjay Kumar Singh has also supported the fact that on 16.6.2004 at about 5 to 6 P.M., Golu and Amit had taken the deceased to the house of Kartik Sharma. This witness was talking to Narendra Singh (brother of the deceased) at about 9.00 P.M., when Narendra Singh had also informed that Banty had gone to the house of Kartik Sharma and he had not returned back. He has also stated that Banty, Amit and Golu were going from Bitupur towards Adityapur and they had stopped the motorcycle, upon seeing Narendra Singh, the brother of the deceased, and Narendra Singh had asked Banty to go to the house, whereupon, Banti informed him that he was going to the house of Kartik Sharma, thereafter, he did not return. He has stated that he learnt that on 19.6.2006, his dead body was recovered from the house of Kartik Sharma. In his cross-examination, this witness has stated that he had not seen the occurrence. 10. P.W.-7 Narendra Singh is brother of the deceased and has also supported the fact that Golu had taken his brother Banty on a motorcycle, stating that Kartik Sharma and his wife were calling him. He has also stated that two persons were sent to the house of accused Kartik Sharma, who informed that when they went there, Kartik Sharma came out of the house, he was trembling and had stated that Banty was not at his house. They were again sent to the house of Kartik Sharma, but by that time, Kartik Sharma was not present in the house and the house was locked. Thereafter, the police case was lodged. This witness has also stated that on 16.6.2004 itself, he had seen Banty, Golu and Amit Sharma, coming from Bistupur side, he asked his brother to go to his house, upon which, he told that he was called by Kartik Sharma and his wife, and he would return back after meeting them. This witness has also stated that the dead body of Banty was recovered on 19.6.2004 from the courtyard of the house of Kartik Sharma, which was concealed beneath the sand and he had identified the dead body of the deceased. The inquest report was prepared. This witness has also stated that the dead body of Banty was recovered on 19.6.2004 from the courtyard of the house of Kartik Sharma, which was concealed beneath the sand and he had identified the dead body of the deceased. The inquest report was prepared. He has proved his signature and the signature of the other witness on the inquest report, which were marked Exhibits-2 Series. He has identified the accused in the Court. There is nothing of much importance in his cross-examination also. 11. P.W.-4 Jasbir Kaur, the sister of the deceased and P.W.-8 Kaushalya Devi, the mother of the deceased, are not the eyewitnesses to the occurrence, as they were out of station, but they have supported the prosecution case as hearsay witnesses. 12. P.W.-12 is Lalan Singh, who is the witness to the seizure of blood stained soil from the house of the accused Kartik Sharma, on which, he had put his signature. He has identified his signature, which was marked Exhibit-1/2. He has stated nothing about the occurrence. 13. P.W.-13 is Smt. Uma Mahto, who was posted as B.D.O. at Gamharia, and in whose presence, the dead body was recovered. She has stated that on 19.6.2004, on the order of S.D.O., she had visited the house of Kartik Sharma, where police officials were present. The house was locked and bad smell was coming from inside. Upon her order, the lock of the house was broken and they entered the house and reached the courtyard from where the bad smell was coming. There was a heap of stones and sand and one dead body was recovered after digging the said heap. The dead body was identified by Narendra Singh to be of his brother Gurbinder Singh @ Banty. The inquest report was also prepared, upon which, she had also put her signature and endorsement, which upon her identification, was marked Exhibit-2/2. 14. P.W.-14 is Dr. Lalan Choudhary, who had conducted the post-mortem examination on the dead body of the deceased on 20.6.2004 and had found the following ante-mortem injuries on the dead body:- (A) Penetrating wound of size 3 c.m. x 1.5 c.m. x abdominal cavity deep over abdomen. 2.5 c.m. umbilicus. (B) Incised wounds:- (i) 3 c.m. x 0.25 c.m. x 0.25 c.m. over frontal region of skull. (ii) 0.5 c.m. x 0.5 c.m. x 0.25 c.m. over left side of frontal skull. 2.5 c.m. umbilicus. (B) Incised wounds:- (i) 3 c.m. x 0.25 c.m. x 0.25 c.m. over frontal region of skull. (ii) 0.5 c.m. x 0.5 c.m. x 0.25 c.m. over left side of frontal skull. (iii) 0.5 c.m. x 0.5 c.m. x 0.5 c.m. over left side of forehead. (iv) 0.5 c.m. x 1 c.m. x 0.5 c.m. over the left side of forehead just above eyebrow. On dissection of :- Skull - Brain liquefied and congested. Chest and Abdomen - lungs decomposing and pale, Heart soft and empty, Spleen liquefied, Kidneys soft and pale, Mesentery and intestine cut, Stomach contained onion, rice mutton 300 gms undigested. Urinary bladder empty. This witness has stated that the death was due to shock and haemorrhage and all the injuries were caused by sharp and pointed object. He has proved the post-mortem report to be in his pen and signature, which was marked as Exhibit-4. In his cross-examination, he has stated that the dead body was fully decomposed. 15. The statement of accused was recorded under Section 313 of the Cr.P.C., wherein the only question that was put to him was, whether he had committed the murder of the deceased along with other co-accused persons, to which, this accused has replied in negative. No other question was put to the appellant under Section 313 of the Cr.P.C. On the basis of the evidence on record, the accused appellant was found guilty, convicted and sentenced by the Trial Court below, for the offences as aforesaid. 16. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below, cannot be sustained in the eyes of law, inasmuch as, though the fact that has come against the appellant, is that the dead body of the deceased was recovered from the courtyard of the house of the appellant, but there is no evidence even of last seen with the deceased against this appellant. Learned counsel further submitted that admittedly the deceased was taken away by Golu and from the evidence of P.W.-6 Sanjay Kumar Singh and P.W.-7 Narendra Singh, it is apparent that they had lastly seen the deceased in company of Golu and Amit. Learned counsel further submitted that admittedly the deceased was taken away by Golu and from the evidence of P.W.-6 Sanjay Kumar Singh and P.W.-7 Narendra Singh, it is apparent that they had lastly seen the deceased in company of Golu and Amit. Learned counsel further submitted that the only circumstance against the appellant is that the dead body of the deceased was recovered from the courtyard of the house of the appellant, which was buried under the sand, but the conviction of the appellant could not be secured on the basis of this circumstance only. Furthermore, this circumstance was never put to the accused in his statement recorded under Section 313 of the Cr.P.C. Even the circumstance that when P.W.-2 Vijay Kumar Labh and P.W.-3 Kamta Singh had visited the house of the appellant and the appellant allegedly told them on his own without being asked, that the deceased was not in his house and he was trembling with fear at that time, also could not taken against the appellant, as even this circumstance was not put to the appellant in his statement, recorded under Section 313 of the Cr.P.C. Learned counsel, accordingly, submitted that the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law and it is a fit case, in which, the accused ought to have been given the benefits of doubt. 17. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts, inasmuch as, the witnesses have stated that the deceased was taken away from the house informing him that this appellant and his wife were calling him. It is also submitted that it is alleged that the deceased was having illicit relationship with the wife of the appellant and, as such, there was motive against this appellant to have committed the murder of the deceased and the dead body of the deceased was also recovered from the house of this appellant, and the evidence of P.W.-14 Dr. Lalan Choudhary, clearly shows that there were several incised wounds on the dead body of the deceased, which show that the deceased was done to death in a very brutal manner. Lalan Choudhary, clearly shows that there were several incised wounds on the dead body of the deceased, which show that the deceased was done to death in a very brutal manner. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below. 18. Having heard counsels for both the sides and upon going through the record, we find that there is no evidence to the fact that the deceased was ever seen in the company of the appellant. There is only circumstantial evidence against the appellant. The first circumstance is that two witnesses, namely, P.W.-2 Vijay Kumar Labh and P.W.-3 Kamta Singh went to the house of the appellant in search of the deceased, when this appellant came out of the house and told them on his own and without being asked, that the deceased was not in his house. At that time, he was trembling with fear. The other circumstance is recovery of the dead body of the deceased from the courtyard of the house of this appellant, which recovery was made on the basis of the confessional statement of the co-accused Golu, and not this appellant, as stated by P.W.-3 Kamta Singh. None of these circumstances were put to the accused appellant, in his examination under Section 313 of the Cr.P.C., by the Trial Court below, and the only question that was put to him was, whether he had committed the murder, to which, he replied in negative. In our considered view, basing the conviction of the appellant on the basis of these circumstances detailed above, without putting these circumstances to the accused in his statement recorded under Section 313 of the Cr.P.C., and affording him an opportunity to repel these circumstances, was absolutely illegal and cannot be sustained in the eyes of law. 19. In our considered view, basing the conviction of the appellant on the basis of these circumstances detailed above, without putting these circumstances to the accused in his statement recorded under Section 313 of the Cr.P.C., and affording him an opportunity to repel these circumstances, was absolutely illegal and cannot be sustained in the eyes of law. 19. We are of the considered view that since there are allegations against the other co-accused persons also and the dead body had been recovered on the basis of the confessional statement of the co-accused, which could not be proved in this case, due to non-examination of the I.O., the fact that the deceased might have been killed by the other co-accused persons, particularly with whom, he was last seen, and the dead body was buried in the house of the appellant, cannot be ruled out. Indeed there is evidence on record that previously also the deceased was assaulted by Golu and Amit. Admittedly there were two more persons in the house, who are the wife of this appellant and son of the appellant, and there is evidence against the son to have assaulted the deceased earlier. We also find that the non-examination of the I,O., has also vitally prejudiced the defence in this case, as the confessional statement of the co-accused leading to the recovery of the dead body could not be proved in the case, and the defence was deprived to get the necessary facts in this regard from the I.O. We also find that in view of the evidence that the deceased was having illicit affair with the wife of the deceased, the fact that the deceased entered the house of the appellant with the intent to commit sexual offence with the wife of the appellant, and he might have been killed in exercise of right of private defence of body, cannot be completely ruled out. We find that for the forgoing reasons, the prosecution has not been able to bring home the charge against the accused appellant beyond all reasonable doubts and it is a fit case, in which, the appellant ought to have been given at least the benefits of doubt. As such, the impugned Judgment of conviction and the Order of sentence, cannot be sustained in the eyes of law. 20. As such, the impugned Judgment of conviction and the Order of sentence, cannot be sustained in the eyes of law. 20. For the forgoing reasons, the impugned Judgment of conviction dated 26th of February, 2013 and the Order of sentence dated 27th of February, 2013, passed by the learned 1st Additional Sessions Judge, Seraikella-Kharsawan, in Sessions Trial No. 127 of 2004, convicting and sentencing the appellant Kartik Sharma, for the offence under Sections 302 / 34 of the Indian Penal Code, are hereby, set aside. Consequently, the appellant is given the benefits of doubt and he is acquitted of the charge. The appellant Kartik Sharma is in custody, undergoing the sentence. Let him be released and set as liberty forthwith, if his detention is not required in any other case. 21. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.