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2019 DIGILAW 323 (JHR)

Pintu Kumar Bharti v. State of Jharkhand

2019-01-31

H.C.MISHRA

body2019
JUDGMENT : Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the impugned Judgment of conviction dated 29.11.2007 and Order of sentence dated 30.11.2007, passed by the learned 2nd Additional Sessions Judge, F.T.C., Chatra, in Sessions Trial No.158 of 2006, whereby, the sole accused 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 imprisonment for life, with fine of Rs.3000/-, for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Dhuma Yadav, the father of the deceased Yugesh Yadav, recorded on 16.03.2006, at about 4.00 P.M., at the agricultural field of village Kewal Tola, situated in P.S. Pratappur, District Chatra, wherein he has stated that on the previous day, i.e., 15.03.2006, his maternal cousin Dinesh Yadav of village Kewal Tola, had come to his house on the occasion of Holi festival, and when he was returning back to his village at about 4.00P.M., Yugesh Yadav, the son of the informant, aged about 17 to 18 years, also accompanied his maternal cousin. On 16.03.2006 at about 12.30 P.M., he was informed that his son Yugesh Yadav was murdered near Kewal Tola and the dead body was lying near a mahua tree, whereupon he went there along with his family members and saw the dead body of his son, with injuries on several parts of the body, caused by sharp cutting weapon. His penis was also chopped off. He could not gather any information about the occurrence, and his maternal cousin informed him that in the evening, the deceased went along with the village people to play Holi, and when he did not return back in the night, they thought that he must have returned back, but on the next day, the dead body was found, and thereafter, the informant was informed. On the basis of the fardbeyan of the informant, Pratappur P.S. Case No.12 of 2006, corresponding to G.R. No.161 of 2006, was instituted for the offences under Sections 302, 201/34 of the Indian Penal Code, against unknown persons, and investigation was taken up. Upon investigation, the police submitted the charge-sheet, finding the case true against the accused appellant. 4. On the basis of the fardbeyan of the informant, Pratappur P.S. Case No.12 of 2006, corresponding to G.R. No.161 of 2006, was instituted for the offences under Sections 302, 201/34 of the Indian Penal Code, against unknown persons, and investigation was taken up. Upon investigation, the police submitted the charge-sheet, finding the case true against the accused appellant. 4. Upon commitment of the case to the Court of Session, charge was framed against the accused for the offences under Sections 302, 201/34 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, eleven witnesses were examined by the prosecution, including the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. The I.O. has not been examined in the case, and the prosecution has not proved the fardbeyan, the formal F.I.R., or any other document in this case. 5. At the very outset it may be stated that this case is based only on the circumstantial evidence of last seen together with the deceased, and the alleged confessional statement of the accused leading to the recovery of the weapon of offence, i.e., pasuli (a sharp cutting weapon used for sapping toddy), but neither the confessional statement, nor the seizure list has been proved by the prosecution. The case rests only upon the oral evidence of the prosecution witnesses, who have stated about last seen evidence against the accused, and the extra judicial confession of the appellant, as also his confession before the police, leading to the recovery of the weapon of offence from the house of P.W.-6 Kailu Bharti, on the basis of which the present appellant has been convicted and sentenced by the Trial Court below. 6. P.W.-1 Dinesh Yadav and P.W.-3 Rajesh Yadav are own brothers, and they are the uncles of the deceased, at whose house the deceased had gone on the occasion of Holi. They have stated that the deceased had come to their place in Holi, and in the evening he went out to play Holi. They learnt that in the night the accused Pintu Kumar Bharti took him on the pretext of taking him home. P.W.-1 Dinesh Yadav has stated that the deceased was in inebriated condition. They have stated that the deceased had come to their place in Holi, and in the evening he went out to play Holi. They learnt that in the night the accused Pintu Kumar Bharti took him on the pretext of taking him home. P.W.-1 Dinesh Yadav has stated that the deceased was in inebriated condition. On the next day the dead body of the deceased was found, and in the meantime the villagers started searching the accused Pintu Kumar Bharti, but he was nowhere to be found. He was brought from his in-laws' place, and in the presence of the villagers, as also in the presence of P.W.-3 Rajesh Yadav, he made the extra judicial confession of killing the deceased by pasuli, and he also confessed his guilt before the police, stating that he had committed the murder of the deceased, and on his pointing out, the said pasuli was recovered from the house of a Pahan. They had seen the dead body of the deceased with sharp cut injuries. They have identified the accused in the Court. In their cross-examinations, these witnesses have stated that the accused had not taken away the deceased in their presence, and they had not seen the occurrence. P.W.-1 Dinesh Yadav has admitted that the pasuli was not recovered in his presence. He has stated that the confession was made before the police in his presence. He has stated that the accused is not his co-villager and he was not knowing him from before. He has also stated that there was no previous enmity between the accused and the deceased. P.W.-3 Rajesh Yadav has admitted that the confession was not made by the accused before the police in his presence. Both these witnesses have denied the suggestion of giving false evidence. 7. P.W.-2 Umesh Yadav is the brother of the deceased, who has stated that when the accused was brought from his in-laws' place, he did not confess his guilt before the villagers. He was brought to the police station, where he was kept for the whole night, and in the morning, he confessed his guilt before the police that he had committed the murder of Yugesh Yadav by pasuli. He has stated that the said pasuli was recovered on the basis of his confessional statement from the house of a Pahan. He has identified the accused in the Court. He has stated that the said pasuli was recovered on the basis of his confessional statement from the house of a Pahan. He has identified the accused in the Court. In his cross-examination, he has admitted that the occurrence was not committed in his presence, and he had only heard about the confession made by the accused before the police, and one Ramdas had brought the pasuli to the police station, at the instruction of the Police Officer. He has stated that the house of the accused was at the distance of about half Km., from his house, and he was knowing the accused from before. There was no enmity between them and the accused had no enmity with the deceased as well. He has also denied the suggestion of giving false evidence. 8. P.W.-4 Rabindra Yadav, is the granduncle of the deceased, and on the point of confession, he has stated that the accused made the extra judicial confession in the presence of the villagers and thereafter, he was handed over to the police. He confessed his guilt also before the police, and on his pointing out the pasuli was recovered from the house of Kailu Bharti. He has identified the accused in the Court. In his cross-examination, this witness has stated that Pintu Kumar Bharti had made confession before him and also before the police. He has reiterated in his cross-examination that the accused had made the extra judicial confession before the villagers also. He has admitted that he had not seen the occurrence, and that the accused is his co-villager, whom he knew from before. 9. P.W.-5 Dhuma Yadav is the informant and the father of the deceased. He had given the fardbeyan to the police, upon which he had put his thumb impression. He had seen the dead body of his son with the sharp cut injuries, and his penis was chopped off. He was informed that the accused had taken the deceased with him on the pretext of taking him to his house. After the dead body was found, the accused was searched, but he had fled away to his in-laws' place, from where he was brought, and he confessed his guilt before the villagers in his presence. He was brought to the police station, where also, he confessed his guilt to have committed the murder by pasuli. After the dead body was found, the accused was searched, but he had fled away to his in-laws' place, from where he was brought, and he confessed his guilt before the villagers in his presence. He was brought to the police station, where also, he confessed his guilt to have committed the murder by pasuli. The blood stained pasuli was brought to the police station by the Chowkidar. He has identified the accused in the Court. He has stated in his cross-examination that Pintu Kumar Bharti is his co-villager, and he had neither seen him with the deceased, nor had seen the occurrence. He has however, admitted in his cross-examination that Pintu Kumar Bharti was apprehended by the villagers and he had made extra judicial confession at the village itself, whereas, this witness was near the dead body at that time. He has also admitted that the confession before the police was not made by the accused in his presence. He has stated that the blood stained pasuli was brought to the police station by the Chowkidar, from the house of one Pahan, and that pasuli belonged to the Pahan. He has also admitted that there was no enmity with the accused. He has denied the suggestion of giving the false evidence. 10. P.W.-7 Keshar Bharti, P.W.-8 Rajan Bharti, P.W.-9 Mukesh Bharti and P.W.-10 Tetar Bhuian, have stated that on the occasion of Holi, kirtan was going on, and in the evening they saw one boy lying unconscious, in inebriated condition, whose head was washed with water, upon which he gained some consciousness and in the meantime Pintu Kumar Bharti came there and he stated that he knew the boy, who was the son of Dhuma Yadav. He assured that he will take the boy to his house. Thereafter, he took the boy with him. On the next day, the dead body was found, and they identified the dead body of the same boy. Thereafter, Pintu Kumar Bharti was searched, who had fled away to his in-laws' place, and he was apprehended and brought to the village. These witnesses have also stated that in their presence and before the villagers, the accused made the extra judicial confession of killing the deceased. Thereafter, he was brought to the police station, where also he confessed his guilt, on the basis of which the pasuli was recovered. These witnesses have also stated that in their presence and before the villagers, the accused made the extra judicial confession of killing the deceased. Thereafter, he was brought to the police station, where also he confessed his guilt, on the basis of which the pasuli was recovered. These witnesses have also identified the accused in the Court. None of them are the eye witness to the occurrence of murder. P.W.-7 Keshar Bharti admitted in his cross-examination that he had seen the pasuli, but he has no knowledge as to who had brought the pasuli to the police station and on what basis. P.W.-8 Rajan Bharti has admitted in his cross-examination that neither the extra judicial confession, nor the confession before the police, was made by the accused in his presence. He has also admitted that the pasuli was not recovered in his presence. Similarly, P.W.-9 Mukesh Bharti has also admitted in his cross-examination that Pintu Kumar Bharti had not made the extra judicial confession in his presence, rather he was informed about it by another person. P.W.-10 Tetar Bhuian has also admitted in his cross-examination that he was not present when Pintu Kumar Bharti was apprehended, and he had neither made the confession before the police, nor the extra judicial confession in his presence. 11. P.W.-6 is Kailu Bharti, from whose house the pasuli was recovered. He has stated that Pintu Kumar Bharti had committed the murder and fled away to his in-laws' place, from where he was brought and he had made extra judicial confession before the villagers to have committed the murder of the deceased. The Chowkidar brought him to the house of this witness, and Pintu Kumar Bharti took out the pasuli from his house in his presence, stating that with this pasuli he had committed the murder. Thereafter, the pasuli was taken to the police station, where the seizure list was prepared. He had also put his thumb impression on the seizure list. He has also stated that he used to keep the pasuli in a hole made in the wall of his house, which he used for sapping toddy. This witness has also identified the accused in the Court. He had also put his thumb impression on the seizure list. He has also stated that he used to keep the pasuli in a hole made in the wall of his house, which he used for sapping toddy. This witness has also identified the accused in the Court. In his cross-examination, he has admitted that he had not shown the place to the accused where he used to keep the pasuli, but the accused was in visiting terms at the house of this witness for taking the toddy, and he might have seen the place where the pasuli was kept. He has stated in his cross-examination that the pasuli was kept in a hole in the wall of his house and that room had no door or verandah from the outer side. He has stated in his cross-examination that the accused might have taken the pasuli from his house at the time of playing Holi, but he had not seen him taking away the pasuli. He has admitted that the accused had not confessed his guilt in his presence, but he has stated that the pasuli was blood stained. He has also stated that there was only one pasuli in his house. He has also denied the suggestion of giving false evidence. 12. P.W.-11 Dr. Bhuneshwar Prasad Singh, had conducted the post-mortem examination on the dead body of the deceased on 17.03.2006, and had found following ante-mortem injuries on the dead body :- (i) Incised wound over left cheek to right cheek including lower part of nose 4” x 1” x bone deep, pale in colour (ii) Incised wound over bridge of nose to middle of left cheek 4” x 1” bone deep, pale in colour. (iii) Incised would over left knee joint 3” x 1”, pale in colour. (iv) Incised wound over middle of throat 4” x 3” x muscle deep. All tissues of throat were cut including trachea, oesophagus muscles and large vain. (v) The penis was cut into pieces, the stool was found around the anus. He has stated that the death was caused due to severe hemorrhage and shock due to aforesaid injuries, which were caused by a sharp cutting weapon. He has also proved the post-mortem report to be in his pen and signature, which was marked Ext.-1. 13. (v) The penis was cut into pieces, the stool was found around the anus. He has stated that the death was caused due to severe hemorrhage and shock due to aforesaid injuries, which were caused by a sharp cutting weapon. He has also proved the post-mortem report to be in his pen and signature, which was marked Ext.-1. 13. The statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, wherein he was asked whether he was last seen with the deceased. He was not asked any question about the recovery of the weapon of offence on the basis of his confessional statement. On the basis of the materials on record, the appellant has been convicted and sentenced by the Trial Court below, as aforesaid. 14. Learned counsel appearing 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, in as much as, the prosecution case rests only upon circumstantial evidence of last seen with the deceased, and the extra judicial confession of the accused and the alleged recovery of the pasuli, i.e., the weapon of offence from the house of P.W.-6 Kailu Bharti, on the basis of his confessional statement. It is submitted by learned counsel that admittedly there is no eye witness to the occurrence of murder, and the extra judicial confession is a very weak piece of evidence. The evidence of the witnesses are not at all consistent about the extra judicial confession made by the accused, as most of the witnesses, who have stated about the extra judicial confession, have retracted in their cross-examinations, stating that such extra judicial confession or confession before the police were not made in their presence. Some of the witnesses, who have stated about the recovery of the pasuli, have also stated in their cross-examinations that the pasuli was not recovered in their presence. It is submitted by the learned counsel that the seizure list of the weapon of offence, or the confession of the accused leading to recovery of the pasuli, has not been proved in this case by the prosecution, nor the weapon of offence was produced in the Court. It is submitted by the learned counsel that the seizure list of the weapon of offence, or the confession of the accused leading to recovery of the pasuli, has not been proved in this case by the prosecution, nor the weapon of offence was produced in the Court. Even I.O., of the case has not been examined, which has caused serious prejudice to the defence, and in as much as, the necessary contradictions on the point of extra judicial confession, as also the recovery of the pasuli, could not be taken from the I.O., particularly in view of the contradictory evidence of the witnesses on these points. Learned counsel accordingly, submitted that in the facts of this case the appellant was entitled at least the benefits of doubt. 15. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the witnesses have stated that when apprehended, the accused made the extra judicial confession before the villagers, and in their presence, to have committed the murder. They have also stated about the confession made by the accused before the police, leading to the recovery of the pasuli from the house of P.W.-6 Kailu Bharti, who has also proved this fact. Learned counsel submitted that P.W.-7 Keshar Bharti, P.W.-8 Rajan Bharti, P.W.-9 Mukesh Bharti and P.W.-10 Tetar Bhuian, are the eye witnesses to the fact that the deceased was taken away by this accused on the pretext of taking him to his home, and on the next day the dead body of the deceased was found. Even these witnesses have also stated about the extra judicial confession made by the accused in their presence, and about the confession made by the accused before the police, leading to the recovery of the pasuli from the house of P.W.-6 Kailu Bharti. Learned counsel accordingly, submitted that the prosecution has been able to prove beyond all reasonable doubts that in the evening this accused had taken the deceased along with him, and on the next day, the dead body of the deceased was found with ante-mortem sharp cut injuries, and the confession made by the accused had led to the recovery of the weapon of offence, thus, bringing 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. 16. 16. Having heard learned counsels for both the sides and upon going through the materials on record, we find that admittedly, there is no eye witness to the occurrence of murder, and the entire case depends upon the circumstantial evidence, i.e., this accused was last seen with the deceased, as in the presence of four witnesses, i.e., P.W-7 Keshar Bharti, P.W.-8 Rajan Bharti, P.W.-9 Mukesh Bharti and P.W.-10 Tetar Bhuian, he had taken the deceased with him, and on the next day, the dead body of the deceased was found with several sharp cut injuries. The prosecution witnesses have deposed that extra judicial confession was made by the accused Pintu Kumar Bharti before them and the villagers, and they have also stated about the recovery of the weapon of offence from the house of P.W.-6 Kailu Bharti, on the basis of confessional statement of the accused. The evidences of P.W-7 Keshar Bharti, P.W.-8 Rajan Bharti, P.W.-9 Mukesh Bharti and P.W.-10 Tetar Bhuian, clearly show that in the night the deceased was found unconscious in inebriated condition, his head was washed with water and thereafter this accused stated that he shall take the deceased to the house and he took the deceased along with him. This had happened at about 7.00 P.M., to 8.00 P.M., in the night. None of these witnesses have stated that at that time the accused was having the pasuli in his possession. P.W.-6 Kailu Bharti, from whose house pasuli was recovered, has stated in his cross-examination that pasuli might have been taken by the accused at the time of playing Holi in the day. Had this been true, the pasuli must have been with the accused in the night, but it was not seen by any of the witnesses. The evidence of P.W.-6 Kailu Bharti further shows that he used to keep the pasuli in a hole made in the wall of his house, which had no doors or verandah from the outer side. This clearly shows that had the pasuli been taken in the night from the house of P.W.-6, after the accused had taken away the deceased with him, it could not have been taken without the knowledge of P.W.-6 Kailu Bharti, because no one could enter into his house without his knowledge. This clearly shows that had the pasuli been taken in the night from the house of P.W.-6, after the accused had taken away the deceased with him, it could not have been taken without the knowledge of P.W.-6 Kailu Bharti, because no one could enter into his house without his knowledge. Admittedly, at the time of taking the deceased with him, the accused had given friendly gesture to the deceased, since he was unconscious and in inebriated condition, and there was nothing to show that there was any suspicious circumstances in which the accused had taken the deceased along with him. All the family members of the deceased have clearly stated that there was no enmity between the accused and the deceased. In the backdrop of these facts, since there is no eyewitness to the occurrence of murder, which was committed in a very gruesome manner, as even the penis of the deceased was chopped off, the motive for committing the offence, assumes a vital role. The prosecution has utterly failed to prove any motive for committing the offence. 17. On the basis of the materials on record, we are of the considered view that there are indeed vital contradictions in the evidences of the prosecution witnesses, as their evidences are not at all consistent about the extra judicial confession made by the accused, and the witnesses, who have stated about the extra judicial confession, have retracted in their cross-examinations, stating that such extra judicial confession was not made in their presence. P.W.-2 Umesh Yadav, who is the own brother of the deceased, has clearly stated that the accused had not confessed his guilt before the villagers. Some of the witnesses, who have stated about the recovery of the pasuli, on the basis of the confession of the accused before the police, have also stated in their cross-examinations that either such confession was not made in their presence, or that the pasuli was not recovered in their presence. The evidence of P.W.-6 Kailu Bharti, from whose house the recovery of the weapon was made, clearly shows that the recovery was not made by the I.O., rather it was made by the Chowkidar, and the seizure list was prepared in the police station. The evidence of P.W.-6 Kailu Bharti, from whose house the recovery of the weapon was made, clearly shows that the recovery was not made by the I.O., rather it was made by the Chowkidar, and the seizure list was prepared in the police station. The fact that the recovery was made by the Chowkidar, is also corroborated by the other witnesses, who have stated that the pasuli was brought to the police station by the Chowkidar. In this backdrop, the non-examination of I.O. has vitally prejudiced the defence as the necessary contradictions on the point of extra judicial confession, as also the recovery of the pasuli, on the basis of his confessional statement could not be taken from the I.O. Even the seizure list showing the seizure of the weapon of the offence on the basis of the confessional statement of the accused, or his alleged confessional statement, or even the weapon of offence, have not been produced and proved in the Court. In the facts of the case, we are of the considered view that the entire case is full of doubts and the benefits thereof must have been given to the accused. As such, the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. 18. For the foregoing reasons, the impugned Judgment of conviction dated 29.11.2007 and Order of sentence dated 30.11.2007, passed by the learned 2nd Additional Sessions Judge, F.T.C., Chatra, in Sessions Trial No.158 of 2006, convicting and sentencing the appellant Pintu Kumar Bharti, for the offence under Section 302 of the Indian Penal Code, are hereby, set aside. Consequently, the accused appellant Pintu Kumar Bharti is given the benefits of doubt, and he is acquitted of the charge. The accused is in custody and he is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 19. 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.