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2018 DIGILAW 55 (JHR)

Abhijit Roy v. State of Jharkhand

2018-01-08

H.C.MISHRA, KAILASH PRASAD DEO

body2018
JUDGMENT : 1. Heard learned counsel for the appellant and learned counsel for the State. 2. Appellant is aggrieved by the judgment of conviction dated 16.11.2006 and order of sentence dated 20.11.2006, passed by the learned Additional Sessions Judge F.T.C. II, Ghatsila, East Singhbhum, in S.T. No. 349 of 2005, whereby, the sole appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life for the said offence. 3. The prosecution, case was instituted on the basis of the written report submitted by A.S.I. of Police, Chakulia Police Station, upon the recovery of a dead body of an unknown female, aged about 18 years on 29.4.2005. The dead body was bearing injuries and it appeared that the accused had tried to conceal the identity of the dead body by pouring acid like substance on the dead body, due to which there were burns also on the dead body. As the dead body could not be identified, nor any clue about the accused could be gathered, Chakulia P.S. Case No. 20 of 2005 corresponding to G.R. No. 178 of 2005 was instituted against unknown for the offences under Sections 302 and 201 of the Indian Penal Code. 4. It appears that during the investigation, implication of the accused was found and there were some recoveries on the basis of the confessional statement of the accused, and as such, the charge-sheet was submitted against the accused by the Police. 5. After commitment of the case to the Court of Session, charge was framed against the accused for the offences under Sections 302 and 201 of the Indian Penal Code, and upon the accused's pleading not guilty and' claiming to be tried, he was put to trial. 6. In course of trial, 14 witnesses were examined by the prosecution including the I.O. and the Doctor who conducted the post-mortem examination on the dead-body of the deceased. The informant Police Officer, however, has not been examined in this case, but the written report has been proved by the I.O. 7. PW 5 Kavita Mahato is the friend of the deceased. The informant Police Officer, however, has not been examined in this case, but the written report has been proved by the I.O. 7. PW 5 Kavita Mahato is the friend of the deceased. This witness has stated that the occurrence had taken place on 29.4.2005 when she were returning home with the deceased Sheela Murmu on her bicycle from the coaching centre situated at Chakulia. When they reached near the Aanganwari Centre, in Village-Kakarisole, the accused Abhijit Roy came there armed with a katari and as apprehended Sheela by her hand, whereupon this witness fled away and came to her house. In the evening, she learnt that Sheela had been murdered. This witness has also stated that she had given her statement under Section 164 of the Cr PC, in the Court, upon which she identified her signature and the same was marked as Ext. 2. In her cross-examination, by the defence, she has admitted that on 29.4.2005 itself, her statement was recorded by the Police in the evening, wherein she had stated that after studying in the coaching centre, both of them had gone to their respective houses. 8. PW 1 Smt. Somwari Murmu, PW 2 Burhan Hansda, PW 6 Jharana Murmu and PW 8 Vishnupado Bera, are not the eye-witnesses to the occurrence, rather, they heard that this accused had committed the murder of the deceased. PW 9 Haripado Sardar was only tendered by the prosecution. 9. PW 7 Smt. Digarmani Murmu and PW 10, Paresh Nath Murmu are the mother and father of the deceased respectively, and these witnesses are also not the eye-witnesses to the occurrence, though they have stated that the accused Abhijit Roy had committed the murder of their daughter and they have also identified the accused in the Court. PW 10, Paresh Nath Murmu, had identified the cycle of the deceased in T.I.P., on which she used to go to the coaching centre and the same was recovered from the possession of the accused. He has identified his signature on the T.I.P. Chart, which was marked as EXhibit-2A. This witness has also stated that he was informed by Kavita that the accused had committed the murder of the deceased. In his cross-examination, he has stated that he has no knowledge as to whether he had stated before the police that he was informed about the occurrence by Kavita. This witness has also stated that he was informed by Kavita that the accused had committed the murder of the deceased. In his cross-examination, he has stated that he has no knowledge as to whether he had stated before the police that he was informed about the occurrence by Kavita. He has also stated that he had seen the dead-body at the Police Station. 10. PW 11 Vikash Kumar Mahto is the owner of the coaching centre, situated in Chakulia, in which the deceased was a student. He has only stated' that the deceased was a student in his coaching centre and subsequently he learnt that she was murdered. He has not stated anything against the accused. 11. PW 3 Pashupati Bera and PW 4 Amulya Bera are witnesses to seizure list, relating to the seizure of a katari, T-shirt and a towel, on which they have identified their signatures, which were marked Exts.-l and 1/1. 12. PW 12 Sukhendu Shushan Roy, is the father of the appellant and he is a signatory to the seizure list, on which he has identified his signature and the same was marked as Exhibit-3. He has further stated that nothing was recovered in his presence, and he was declared hostile. The seizure list relates to recovery of the cycle, which is said to be belonging to the deceased. 13. PW 14 is Dr. Lallan Choudhary, who had conducted the post-mortem examination on the dead-body of the deceased on 30.4.2005, and had found the following ante-mortem injuries :- (A) Incised wounds :- (i) 2.5 cm X 8 cm X 5 cm area back or neck, upper part of third cervical vertebrae, cut separated with spinal cord. (ii) 3 cm X 0.5 cm X muscle deep, over left perietal region. (iii) 8 cm X 1.5 cm X bone deep over right perietal scalp. (iv) 5 cm X 1 cm X bone looking deep over mid of skull. This witness has stated that on dissection he had found contusion and fracture on skull bone and there was contusion on the left half of brain. The cause of death was hemorrhage and shock due to the above ante-mortem injuries caused by sharp edged heavy object which may be katari He has identified the post-mortem report to be in his pen and signature, which was marked as Exhibit -7. 14. The cause of death was hemorrhage and shock due to the above ante-mortem injuries caused by sharp edged heavy object which may be katari He has identified the post-mortem report to be in his pen and signature, which was marked as Exhibit -7. 14. PW 13 Mahanayak Tiyu is the Investigating Officer of the case. This witness has stated that on 19.04.2005 (it should be 29.04.2005), he was posted as Sub-Inspector at Chakulia Police Station, on which date he received the written report submitted by the A.S.I., Mahendra Prasad Yadav Menan, relating to the murder of an unknown female, who had seized the dead body of the deceased and the bloodstained soil from the place of occurrence. The case was instituted against unknown. He has identified the written report which was marked Exhibit-4. He has also proved the formal FIR and the same was marked as Exhibit-5. This witness has stated that thereafter he took over the charge of investigation and sent the dead-body for post-mortem examination. On the same day, Paresh Nath Murmu, the father of the deceased, came to the Police Station and identified the dead body to be of his daughter Sheela Murmu. He recorded the statements of the witnesses. He had also visited the place of occurrence and has given the details of the place of occurrence where he found lot of blood and marks of occurrence. This witness has stated that he arrested the accused from Village Mochibera, situated in West Bengal from the house of one Sap an Singh and a bicycle was also recovered from the house which belonged to the deceased. He has proved the seizure list of the recovery of bicycle which was marked 3/1. He has stated that on 5.5.2005, he "recorded the confessional statement of the accused, on the basis of which one katari was recovered from the" house of the accused along with a T-shirt and a towel. The portion of the confessional statement leading to the recovery has been proved by this witness and the same was marked Exhibit- 6. He has also proved the seizure list and the same was marked as Exhibit-1/2. The portion of the confessional statement leading to the recovery has been proved by this witness and the same was marked Exhibit- 6. He has also proved the seizure list and the same was marked as Exhibit-1/2. This witness has also stated that he got the statement of Kavita Mahto the friend of the deceased, recorded under Section 164 of the Cr.P.C., on 7.5.2005 and the recovered cycle was put on T.I.P., and the same was identified by the father of the deceased. After completing the investigation, he submitted the charge-sheet in this case. In his cross-examination, this witness has admitted that Kavita Mahto, in her statement recorded on 29.4.2005, had stated before him that after the coaching, Kavita and the deceased went to their respective houses. He recorded the statement of Kavita Mahto again in Para-77, as he learnt that due to fear Kavita had not given the correct statement earlier. He has admitted that in the arrest memo there is no signature of Sapan Singh from whose house, the accused was arrested and. on the seizure list of the cycle, there is no signature of any local witness. This witness has also admitted that he had not recorded the statement of any witness who had seen the accused wearing T-shirt. and the towel which were recovered from the house of the accused, on the date of occurrence. He has denied the suggestion of making faulty investigation. 15. The statement of the accused was recorded under Section 313 of the Cr PC, wherein the accused has denied the evidence against him. On the basis of the evidence on record, the accused has been convicted and sentenced, as aforesaid by the trial Court below. 16. Learned counsel for the appellant has submitted that the impugned judgment of conviction and order of sentence passed by the trial Court below is absolutely illegal and cannot sustained in the eyes of law. It is pointed out by the learned counsel for the appellant that only evidence against the accused is the evidence of PW 5, Kavita Mahto, who has stated that on the date of occurrence while they were returning, the accused waylaid them, armed with katari, and apprehended the deceased, whereupon, she fled away. Later on she learnt that the deceased had been murdered. Later on she learnt that the deceased had been murdered. However, this statement was not given before the police when her statement was recorded by the police on the same day. She had only stated that after the coaching, both of them had gone to their respective houses. She had not named the accused in that statement. Both this witness and the Investigating Officer have accepted this fact in their cross-examination. Learned counsel further submits that even recovery of the cycle from the house of Sapan Singh, or the recovery of the weapon of offence are absolutely doubtful. The I.O. has admitted that the signature of no local witness was taken on the seizure list of the recovery of cycle. Learned counsel has drawn the attention of the Court towards the seizure list of the weapon of offence, to show that there is no signature of the accused thereon, though it is said to be recovered on the confessional statement of the accused. Learned counsel submits that none of the witnesses are the eye-witnesses to the occurrence, and on the basis of the evidence on record the prosecution has utterly failed to prove the charge against the accused beyond all reasonable doubts. 17. Learned counsel for the State, on the other hand, has opposed the prayer and submitted that PW 5, Kavita Mahato, has clearly stated that while they were returning from the coaching centre, the accused had waylaid them and he was armed With katari and due to fear she fled away. Later on she learnt that the deceased was murdered. Learned counsel submits that from the same place the dead body of the deceased was found with four sharp-cutting injuries, which have been proved by PW 14 Dr. Lallan Chaudhary and the post-mortem report proved by. him as Exhibit-7. Learned counsel further submitted that even the weapon of offence has been recovered on the basis of confessional statement of the accused and the cycle of the deceased was recovered from the possession of the accused, which has been identified by the father of the deceased. Learned counsel accordingly, submitted that the prosecution has been able to prove the charge against the. appellant beyond all reasonable doubts and there is no illegality in the impugned judgment of conviction and order of sentence. 18. Learned counsel accordingly, submitted that the prosecution has been able to prove the charge against the. appellant beyond all reasonable doubts and there is no illegality in the impugned judgment of conviction and order of sentence. 18. Having heard learned counsels for both the sides and upon going through the record, we find that there is no eye-witness, to the occurrence. The evidence of PW 5 Kavita Mahto is not very trustworthy, as we have also looked into the case diary and found that in her statement recorded on the date of occurrence, she had not named the accused-appellant at all. It appears that she has made developments upon the earlier version given before the police. Indeed she is not the eye-witness to the occurrence of murder. All the other material prosecution witnesses, including the mother and father of the deceased, are only hearsay witnesses and they have not seen the occurrence. Though PW I.O Parash Nath Murmu, the father of the deceased has identified the bicycle, which is said to have been recovered from the possession of the accused, but the fact remains that the said cycle was recovered from the house of one Sapan Singh, and it was not recovered on the basis of the confessional statement of the accused-appellant. The I.O. has nowhere stated that the said bicycle was recovered on the basis of the confessional statement of the accused-appellant. On the basis of the confessional statement of the accused-appellant, the katari has been recovered, but the seizure list shows that it is not mention therein that it was a bloodstained katari, and there is nothing on record to show that the said katari was sent for forensic examination. Even though. it is the case of the prosecution that katari was recovered on the basis of the confessional statement of the accused-appellant, but there is no signature of the accused-appellant on the said secure-list and as such, the case of the prosecution that the said katari was recovered on the basis of the confessional statement of the accused-appellant, becomes very doubtful. These apart, there is no evidence on record to show the complicity of the accused-appellant in the commission of crime. These apart, there is no evidence on record to show the complicity of the accused-appellant in the commission of crime. We are of the considered view that on the basis of the evidence on record, the prosecution has failed to prove charge against the accused-appellant beyond all reasonable doubts, and the appellant was entitled at least to the benefits of doubt. 19. For the foregoing reasons, the impugned judgment of conviction dated 16.11.2006 and order of sentence dated 20.11.2006, passed by the learned Additional Sessions Judge F.T.C. II, Ghatshila, East Singhbhum. in S.T. No. 349 of 2005, are hereby set aside. The appellant Abhijit Roy is found not guilty and he is acquitted of the charge. The appellant is in custody undergoing the sentence. Let him be released and set at liberty forthwith if his detention is not required in any other case. 20. This appeal is accordingly, allowed. Let the L.C.R. be sent back to the Court concerned forthwith, along with copy of this judgment. Appeal allowed.