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2021 DIGILAW 242 (JHR)

James Kerketta v. State of Jharkhand

2021-02-25

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

body2021
JUDGMENT : Shree Chandrashekhar. J. The sole appellant was put on trial on the charge of committing murder of Matiyas Kerketta, his brother. In Sessions Trial No. 341 of 2010, James Kerketta has been convicted and sentenced to R1 for life and a fine of Rs. 5,000/- under section 302 of the Indian Penal Code. 2. Dhurwa (T) PS Case No. 25 of 2010 was lodged against the appellant on 07.02.2010 under section 302 of the Indian Penal Code. The informant of this case is daughter of the deceased. In her fardbeyan which was recorded at 09: 15 AM on 07.02.2010 near her house, Ashrita Kerketta has stated that last night her father and two sisters were sleeping in the house. At about midnight she woke up on hearing quarrel between her uncle James Kerketta and his wife, her aunt was crying loudly. Both the sisters and her father tried to intervene and her father who was drunk started scolding his brother, whereupon her uncle threatened them brandishing a sword in his hand. So, she escaped towards back of the house and her father ran away to the east of the house. However, her uncle chased her father and inflicted sword injuries from the back. On hearing hulla the villagers came there but by that time her father had died. The informant has alleged that her father had a money dispute with his brother regarding sale of an ancestral land and previously also her uncle had committed marpit with her father. During the investigation, confessional statement of James Kerketta was recorded by the Investigating Officer. In his disclosure, James Kerketta stated that he could recover the sword from a place in the back of his house where it was concealed. 3. Dr. Vinay Kumar who conducted the postmortem examination has found sharp cut injuries on the forehead, back of the chest and front of the chest. There were one deep bone cut chop wound on the occipital scalp and one stab wound on the back of the chest. In the opinion of the doctor, the injuries were antemortem in nature and caused by heavy sharp cutting weapon/weapons. After the investigation, a charge-sheet was submitted against James Kerketta for committing the offence under section 302 of the Indian Penal Code. In the opinion of the doctor, the injuries were antemortem in nature and caused by heavy sharp cutting weapon/weapons. After the investigation, a charge-sheet was submitted against James Kerketta for committing the offence under section 302 of the Indian Penal Code. In the trial, the prosecution has examined eight witnesses out of whom PW2- Ashrita Kerketta and PW3- Binita Kerketta are daughters of the deceased. PW4 and PW6 are seizure witnesses and PW4 and PW5 are inquest witnesses. 4. The learned Judicial Commissioner-IV, Ranchi has held that daughters of the deceased have seen the accused chasing their father and it is quite possible that 'one can see the incident while hiding behind a wall of the house. The learned Judge has further held that recovery of the murder weapon at the instance of the accused was proved by PW7 and PW8, and; no explanation was offered by the accused to the incriminating circumstances when he was examined under section 313 of the Code of Criminal Procedure. 5. In the judgment under challenge, the learned trial Judge' has discussed the prosecution evidence in the following manner: “6. Heard and perused the entire record. On perusal of the same it transpires that there is allegation against the accused of having chased the deceased with a sword and then having committed the brutal assault on the body of the deceased leading to his death. The occurrence is alleged to be midnight occurrence and is also stated to be witnessed by two daughter of the decease. Both the daughters have been examined in this case as PW2 and PW3 and have fully supported the prosecution version of the accused chasing the deceased along with the two daughters who were some how able to escape after hiding themselves behind the house and subsequently the deceased became the victim of the chase of the accused who was subsequently given a lethal blow by the sword culminating into his death. The credentials of the evidence of P W 2 and PW3 is not shaken and there is no reason to disbelieve with regard to the evidence given by PW2 and PW3 particularly merely because they are interested witnesses. In the present case the deceased as well as the accused are also own brothers and the occurrence happens at midnight in and near the house and it is quite obvious that only the inmates will witness such occurrence. In the present case the deceased as well as the accused are also own brothers and the occurrence happens at midnight in and near the house and it is quite obvious that only the inmates will witness such occurrence. The argument advanced on behave of the defence that since these two daughters had hidden themselves behind the house is quite improbable that they have witnessed the occurrence. This argument of the defence as no force as it is quite possible while hiding behind the wall or the house a person can still see the occurrence and that there is no reason as to why these witnesses could not have seen the occurrence when they were also chased by the accused, The second leg of argument on behave of the defence is that the case comes within the exceptions section 300 IPC wherein the case will be a case or culpable homicide not amounting to murder In the present case as apparent from the facts particularly the medical report it transpires that there are several injuries on the body or the deceased right from the head to the chest, back of the chest and lungs as well as kidney appears to have been ruptured wounds and stab wounds are present on the body of the deceased. Obviously it is apparent that such injury is not possible by single blow and hence such act of the accused apparently does not come within the purview any of the exceptions as provided under Section 300 of IPC rather will come within the definition of murder as provided under Section 300 IPC wherein the act of the accused appears to have been done with the intention of causing death or with an intention of causing bodily injury which is sufficient in the ordinary course of nature to cause death. The plea of intoxication appears to have been taken in course of argument as no evidence on that regard is there on the record. The deceased has been said to be drunk or used to take wine frequently or occasionally whatever it may be bur there is no such case as far as the accused is concerned. The plea of intoxication appears to have been taken in course of argument as no evidence on that regard is there on the record. The deceased has been said to be drunk or used to take wine frequently or occasionally whatever it may be bur there is no such case as far as the accused is concerned. Further in the present case the accused has confessed his guilt before the police which no doubt not admissible under law subject to certain exception as provided under Section 27 of the Evidence Act which mandates that confessional statement leading to discovery to that limited extent shall be admissible. In the present case, the confessional statement led to discovery of the murder weapon i.e. the sword which has been exhibited as material Ext.1 and the seizure list which is there on the record also shows and bears testimony to the fact that the said document was prepared on the basis of the seizure made pursuant to confessional statement and identification made by the accused for recovery of the murder weapon. The other prosecution witnesses have also stated that the accused had confessed his guilt before them which also corroborates the prosecution case. It is true that the other witnesses are not eye witnesses to the case but their corroborative value cannot be ignored. Discrepancies with regard to shape and size of the murder weapon is not that fatal. As has been stated by the I.O, he had given the measurement of the murder weapon at the time of preparing the seizure list only on the basis of approximation and not an accurate measure. The seizure list shows that the murder weapon measured about 2 feet 5 inch and on exact measurement P W 6 has stated that it measures 2 feet 3 inch. Such variation of just two inch is quite possible when it is made by approximation In that view of the mailer evidence WP 7 and 8 fully corroborates the recovery of the murder weapon on the identification of the accused based on the confessional statement made by the accused and hence to that extent it is admissible piece of evidence. Such variation of just two inch is quite possible when it is made by approximation In that view of the mailer evidence WP 7 and 8 fully corroborates the recovery of the murder weapon on the identification of the accused based on the confessional statement made by the accused and hence to that extent it is admissible piece of evidence. No explanation has been afforded by the accused with regard to the discovery of the murder weapon or with regard to the death of the deceased Matiyas Kerkefta while questions were put under Section 313 Cr.P C. In view of the entire facts and circumstances, I am of the considered view that the prosecution has been able to prove the charges against the accused beyond reasonable doubt and I therefore hold the accused to be guilty for having committed the offence punishable under Section 302 of IPC. Put up for hearing on the point of sentence on 24.1.13. " 6. In Sessions Trial No. 341 of 2010, the appellant was convicted for committing murder of his brother. 7. PW2 and PW3 who are the daughters of Matiyas Kerketta are projected by the prosecution as eyewitnesses. At the time of their evidence they were aged between 18-20 years and from the materials on record we gather that they were unmarried. They have deposed in the Court that in the intervening night of 06/07.02.2010 they were sleeping in the house. Being the unmarried daughters, there is nothing unusual or unnatural about their presence in the house of their father and, in fact, their presence in the house in the night was not challenged by the defence during the trial. They are competent witnesses who can tell the Court what really happened in the fateful night. PW2 has stated that it was about 12:00 midnight when her uncle chased them threatening with a sword. She and her sister went behind the house and her father ran away. Her uncle assaulted her father with sword from behind and her father died on the spot. An information about the Occurrence was given to the police by the choukidar and next day morning when the police came in the village she gave her fardbeyan. She and her sister went behind the house and her father ran away. Her uncle assaulted her father with sword from behind and her father died on the spot. An information about the Occurrence was given to the police by the choukidar and next day morning when the police came in the village she gave her fardbeyan. PW3 has stated that around 12:00 -12:30 AM in the intervening night of 06/07.02.2010 on hearing hulla when she came out from the house with her sister they found that her uncle was fighting with her father. Her uncle who was carrying a sword chased them and they hid themselves behind the house, but after some chase her father was assaulted and killed by her uncle. She has further stated that the villagers came there, apprehended her uncle and the next day morning when the police came her statement was recorded. She has affirmed that the statement of her sister was also recorded by the police - she is a signatory to the fardbeyan of her sister. 8. Ms. Neetu Singh, the learned counsel for the appellant would submit that PW2 and PW3 are not the eyewitnesses; there are serious inconsistencies in their testimony and, therefore, on the basis of their evidence the appellant cannot be convicted for murder. 9. We find that in the fardbeyan PW2 has stated about a quarrel between the appellant and his wife and on hearing noise of marpit she, her sister and father tried to intervene, however, in the Court she has not stated anything about the aforesaid background of the case. PW3 has also not said anything in the Court about a quarrel between her uncle and aunt in the midnight of 06/07.02.2010. Her evidence is at variance with the story narrated by her sister inasmuch as she has quipped about her uncle quarreling with her father. Even then, we are inclined to accept the evidence of PW2 and PW3 primarily for the reason that their presence in the house at the time of the occurrence is not challenged by the defence. We further find that the inconsistency in the examination-in-chief of PW3 was explained by her later in her evidence. Even then, we are inclined to accept the evidence of PW2 and PW3 primarily for the reason that their presence in the house at the time of the occurrence is not challenged by the defence. We further find that the inconsistency in the examination-in-chief of PW3 was explained by her later in her evidence. In the cross-examination by the defence, it was elicited from her that her uncle was fighting with his wife and on hearing hulla she woke up, and along with her sister and father had tried to intervene. The prosecution story narrated by PW2 and PW3 has intrinsic truthfulness and their statement in the cross-examination that both brothers share a common courtyard lends support to their claim that in the night they found their uncle fighting with his wife and when they tried to interrupt the quarreling couple the appellant chased them. An important feature about their testimony is that the defence has not cross-examined them on many important aspects of the prosecution case. The cross-examination of PW3 was casual - it is confined only to the dispute between both brothers regarding partition of land. PW2 and PW3 both stuck to their grounds and nothing could be elicited in their cross-examination so as to discredit them. They are reliable and trustworthy witnesses and there is no reason why the trial Judge could not have acted upon their evidence. PW2 and PW3 have tendered such evidence which is sufficient to hold that the appellant has assaulted their father with a sword. Even then, to meet the argument of the learned counsel for the appellant that these witnesses are not eyewitnesses, for a moment, we would assume that these witnesses may not have seen the entire incident, but in the absence of any intervening circumstance the evidence of PW2 and PW3 must be accepted that the appellant has assaulted their father with a sword. It was midnight and they have seen the assault upon their father from a distance and that was the reason they have stated nothing about injuries on specific parts of the body. 10. The confessional statement of the appellant was proved during the trial and the prosecution has sought refuge to section 27 of the Indian Evidence Act with the help of recovery of a blood-stained sword at the instance of the appellant. 10. The confessional statement of the appellant was proved during the trial and the prosecution has sought refuge to section 27 of the Indian Evidence Act with the help of recovery of a blood-stained sword at the instance of the appellant. PW4, PW5 and PW6 have stated in the Court that James Kerketta was apprehended by the villagers and handed over to the police. PW5 and PW6 have also stated that on the confessional statement of James Kerketta a sword was recovered by the police. The sword was produced and marked as material Exhibit-l during the trial. PW7 has stated that the sword was blood-stained, however, it was not sealed. In section 27 of the Indian Evidence Act an exception to sections 25 and 26 has been carved out. Section 27 of the Indian Evidence Act is based on the doctrine of confirmation that if any fact is discovered in a search made on the strength of any information obtained from a prisoner such discovery is a guarantee that the information supplied by the prisoner is true. The prosecution has proved confessional statement of the appellant and recovery of the crime weapon at his pointing. 11. In "Suresh Chandra Bahri v. State of Bihar" 1995 Supp (1) SCC 80 the Hon'ble Supreme Court has observed as under: “71. The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence because of such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be false .....” 12. In our opinion, complicity of the appellant in causing injuries to Matiyas Kerketta is firmly proved from the aforesaid evidences laid by the prosecution. 13. Ms. Neetu Singh, the learned counsel for the appellant has next contended that looking at the time and manner of the occurrence it cannot be concluded that conviction of the appellant for murder is proper. 14. Ms. 13. Ms. Neetu Singh, the learned counsel for the appellant has next contended that looking at the time and manner of the occurrence it cannot be concluded that conviction of the appellant for murder is proper. 14. Ms. Neetu Singh, the learned counsel for the appellant has relied on the decision in "Mona Hang Subba v. State of Sikkim" (2012) CriLJ 122; "Ledu Ram v. State of C.G." (2013) 4 CGLJ 637 , and; "Laxmidhar Naik v. State of Orissa" (2006) SupCri CutLT 590, to contend that the appellant is liable to be convicted for culpable homicide not amounting to murder. 15. Whether act of an accused amounts to "murder" or "culpable homicide not amounting to murder" is examined in the facts and circumstances of the case. The different clauses of section 300 of the Indian Penal Code and the statutory illustrations appended therewith make it more than clear that an unintentional act which was committed without premeditation or design may also constitute the offence of murder. A case of culpable homicide not amounting to murder must necessarily be covered under one of the five exceptions under section 300 of the Indian Penal Code and for arriving at a decision whether act of the accused falls under one or the other exceptions the Court is required to examine and exclude applicability of the four clauses of the principal provision. 16. The circumstances in the case indicate that provoked by intervention of his drunken brother the appellant lost self-control. The incident has occurred in the midnight and it is not the prosecution evidence that the place where Matiyas Kerketta was assaulted was a well-lit place. A quarrel between the appellant and his wife caused such noise in the midnight that the family of the brother of the appellant woke up. On seeing quarrel between husband and wife, it was quite natural that the brother and other family members would try to stop the fight and when they tried to intervene the appellant threatened them with a sword. It is the evidence of PW2 and PW3 that the appellant chased them with a sword and assaulted their father from behind. On seeing quarrel between husband and wife, it was quite natural that the brother and other family members would try to stop the fight and when they tried to intervene the appellant threatened them with a sword. It is the evidence of PW2 and PW3 that the appellant chased them with a sword and assaulted their father from behind. It is common knowledge that a fight between husband and wife is generally an emotional fight and, that too, when they were found quarreling in the midnight it can be safely inferred that the husband was quite angry - the wife was found crying loudly. In the aforesaid scenario, when a third person intervenes such intervention may infuriate the person and that appears what had happened in the present case. At that moment he had no animus towards his brother and from narration of the occurrence we find it difficult to infer that any thought of killing his brother might have occurred to the appellant. 17. In "Holmes v. Director of Public Prosecutions" 1946 AC 588 provocation has been explained as under: "The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of selfcontrol, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill, or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. " 18. The appellant threatened and chased three persons and, therefore, an intention to cause death of one person cannot be inferred. From the prosecution evidence, we find that all this happened so quick and fast that any possibility of premeditation can be easily ruled out, and an angry person who has mounted assault from behind cannot be said to have intended to cause death. It was a sudden provocation and the appellant who was engaged in a passionate fight with his wife lost his self-control and while deprived of the power of self-control by grave and sudden provocation assaulted his brother. We have also kept in mind that the provocation was not self inflicted and under Exception-1 to section 300 of the Indian Penal Code the number of injuries are not material. 19. We have also kept in mind that the provocation was not self inflicted and under Exception-1 to section 300 of the Indian Penal Code the number of injuries are not material. 19. In view of the aforesaid discussions, we hold that the prosecution has failed to establish that the appellant has committed offence under section 302 of the Indian Penal Code and, accordingly, his conviction in Sessions Trial No. 341 of 2010 for committing murder of his brother is set-aside. The injuries caused by the appellant were grievous in nature and likely to cause death and, therefore, we hold that the appellant is liable to be convicted and sentenced to RI for ten years under section 304 Part-I of the Indian Penal Code. 20. Accordingly, the judgment of conviction under section 302 of the Indian Penal Code dated 22.01.2013 and the order of sentence of RI for life and fine of Rs. 5,000/- against the appellant, namely, James Kerketta dated 24.01.2013 passed by the learned Judicial Commissioner-IV, Ranchi in Sessions Trial No. 341 of 2010 are set-aside. 21. The appellant, namely, James Kerketta is convicted and sentenced to RI for 10 years under section 304 Part-I of the Indian Penal Code. 22. Mr. Abhay Kumar Tiwari, the learned APP states that the appellant, namely, James Kerketta who has served more than fourteen years of sentence, with remission, is in custody. 23. Accordingly, the appellant, namely, James Kerketta shall be set free forthwith, if not wanted in connection to any other case. 24. In the result, Criminal Appeal (DB) No. 249 of 2013 is partly allowed, in the above terms. 25. Let lower Court records be transmitted to the Court concerned, forthwith. 26. Let a copy of the Judgment be transmitted to the Court concerned through IFAX'.