High Court
Case Details
1 CRIMINAL APPEAL (D.B.)No. 541 of 2006 (Against the judgment of conviction dated 15.12.2005 and order of Sentence dated 16.12.2005 passed by Babita Prasad, 5th Additional Sessions Judge, (F.T.C.) Jamtara in Sessions Case No. 08 of 2005/ 114 of 2003) Lala Hansda ------ ... Versus ... ... Appellant The State of Jharkhand … … … Respondent For the Appellants : For the State : .......... Mr. Ravi Prakash, Advocate. Mr. Pankaj Kumar, A.P.P. .......... P R E S E N T HON'BLE MR. JUSTICE D.N. PATEL HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR .......... Per D.N. Patel, J This Criminal Appeal has been admitted vide order dated 19th June, 2006. 2. Interlocutory Application No. 1458 of 2013 has been preferred for suspension of sentence under Section 389 of the Code of Criminal Procedure. The record and proceeding of Sessions Case No. 08 of 2005/ 114 of 2003 has been received by this Court and counsel for both the sides have shown their readiness and willingness to argue out the case as final hearing of this criminal appeal because the appellant is in judicial custody since 15.02.2003. Thus, by the consent of the counsel for both the sides, this criminal appeal has been taken for final hearing and therefore, instead of hearing Interlocutory Application at length, we have heard the criminal appeal itself. 3. The criminal appeal has been preferred against the judgment of conviction dated 15.12.2005 and order of sentence dated 16.12.2005 passed by Babita Prasad, 5th Additional Sessions Judge, (F.T.C.) Jamtara in Sessions Case No. 08 of 2005/ 114 of
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2003. This appellant has been convicted by the Trial Court for the 2 offence punishable under Section 302 of the Indian Penal Code to be read with Section 201 of the Indian Penal Code and sentenced to R.I. for life. 4. It is a case of prosecution that on 13.02.2003, on the basis of statement of Baski Soren, the wife of the deceased, First Information Report was lodged in which the name of this appellant was revealed by her. It is further prosecution case that about 1 to 1½ years prior to the occurrence, Biralal Choure (Husband of Informant) was suffering from the disease of T.B. The accused Lala Hansda helped in the treatment of the husband of the informant by providing financial help and in this connection, he used to go to her house. During this, the accused developed illicit relationship with the informant. When the husband of the informant recovered from his disease, he protested the illicit relationship between the informant and the accused. On this, the accused threatened him (Biralal Choure) that he will kill him and his wife. On 12.03.03 at about 8.15 P.M., when the informant and her husband were going to the house of one Guruji and reached near Rani Band Pond, all the three accused persons stopped them, Lala Hansda told Biralal Choure that he (Lala Hansda) will kill him, and there after, Naresh Hembram tied a Muflar around his neck. Lala Hansda and Munilal Choure showed her fear of knife and threatened her to go back, on which she went to the house of Guruji and from there to her home and kept mum. On 13.02.2003, the dead body of Biralal was found in Dangal near Jogiyahir Nala (Mouza Dakhimbahal) with injuries on his person. It was claimed by the informant that they were the accused persons who committed the murder of her husband and threw his dead body in the Dangal. 5. Thereafter the case was investigated, charge-sheet was filed against three accused persons, who were tried by the learned Trial Court and this appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 201 of the Indian Penal Code thereof and sentenced 3 to R.I. for life and no separate sentence was awarded for the offence punishable under Section 201 of the Indian Penal Code, whereas rest of the two accused persons have been acquitted. Against this conviction, order passed by 5th Additional Sessions Judge, (F.T.C.) Jamtara, present appeal has been preferred. 6. Counsel for the appellant mainly submitted that the prosecution has failed to prove the offence beyond reasonable doubt. There is no eye witness of the incident. Moreover, the informant has not been examined by the prosecution. Counsel for the appellant has drawn attention of this Court to the deposition of the prosecution witnesses and he submitted that P.W. 1 is brother of the deceased and as per paragraph 10 of the deposition of P.W. 1 which is cross-examination, he has revealed that the wife of the deceased, who is informant had illicit relationship with several persons. Thus, the motive alleged against this appellant is baseless because there are several other persons as per P.W. 1, who were having illicit relationship with the wife of the deceased and therefore, there can be some other probability of causing murder of the deceased. Similarly, P.W. 3 who is Pradhan of the concerned village, has also stated in paragraph 5, 6 & 7 of his deposition that the wife of the deceased had no good relationship with her husband (deceased) and she might have committed murder of her husband and is not traceable after murder of her husband. Thus the exclusive motive alleged against this appellant is no basis at all, rather the evidence is otherwise. It is also submitted by the counsel for the appellant that the so-called extra-judicial confession by this appellant is also hit by Section 25 of the Indian Evidence Act because this is not an extra-judicial confession but this is confession made before the police and therefore, the document at Exhibit- 3 has no value in the eye of law as per Section 25 of the Indian Evidence Act. It is also submitted by the
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counsel for the appellant that the so-called recovery of the knife is no recovery at all in the eye of law because the same was recovered from the public place. As per the deposition given by 4 P.W. 6 and P.W. 7 the knife was never recovered from the confined place. Moreover, looking to the deposition of P.W. 8, the weapon was never seized nor was there any blood stain upon the knife and there is no F.S.L report or Serologist report about the blood group or at least whether it is human blood or animal blood. In fact, the knife which is recovered from the public place was not having any blood stain at all. The counsel for the appellant has relied upon the decision rendered by the Hon'ble Supreme Court in the case of “State of M.P. Vs. Kriparam”, reported in (2003) 12 SCC 675. On the basis of the aforesaid decision, again it is submitted by the learned counsel for the appellant that the recovery of the weapon will not be useful to the prosecution unless there is serologist report. Counsel for the appellant has also relied upon the following decisions as rendered by the Supreme Court : (i) (2012) 2 SCC 399. (ii) (2012) 7 SCC 45. (iii)(1991) 1 SCC 286. On the basis of the aforesaid decision, it is vehemently submitted by the counsel for the appellant that neither the confessional statement which is at Exhibit- 3 can be used against this appellant nor the seized articles which are at Exhibit-4 and 4/1 can be used against this appellant. This aspect of the matter has not been properly appreciated by the learned Trial Court and hence the judgment and order of conviction and sentence passed by the learned Trial Court deserves to be quashed and set-aside. The learned counsel for the petitioner has further submitted that the offence of murder ought to have been proved beyond reasonable doubt and looking to the totality of the evidences on record, this burden has not been discharged by the prosecution and hence this appeal may kindly be allowed by quashing and setting aside the judgment and order of conviction passed by the learned Trial Court. 7. We have heard counsel for the State-A.P.P., who has vehemently submitted that the prosecution has proved the offence 5 beyond reasonable doubt of murder of the deceased committed by this appellant. This appellant was having illicit relationship with the wife of the deceased. Immediate is the First Information Report. This appellant is named in the First Information Report. The prosecution witness nos. 1, 2 & 3 have clearly stated before the learned Trial Court that this appellant had illicit relationship with the wife of the deceased and therefore, to remove the hindrance, this appellant has committed murder of the deceased. Moreover, looking to the deposition given by P.W.4, who is the Investigating Officer, he has proved the fardbeyan at Exhibit-1, First Information Report at Exhibit- 2 and confessional statement of this appellant at Exhibit-3. This appellant has confessed the offence before the police and there is recovery of knife at the behest of the appellant as per Section 27 of the Evidence Act. The confessional statement at Exhibit-3 is admissible evidence. Counsel for the State has pointed out from the evidence given by P.W.9-Dr. Ramdeo Das, who has carried out post- mortem of the deceased that injuries were ante-mortem in nature and time of death is also supporting the facts stated in the First Information Report. This aspect of the matter has been properly appreciated by the learned Trial Court and hence no error has been committed by the learned Trial Court in convicting this appellant for causing murder of the deceased and therefore, this appeal may not be entertained by this Court. 8. Having heard counsel for both the sides and looking to the evidences on record, it appears that there is no eye-witness of this incident. Looking to the deposition of prosecution witnesses, especially P.W.1, P.W.2 and P.W.3, they have stated that the wife of the deceased had illicit relationship with several persons. Thus, the exclusive motive of the appellant for causing murder of the deceased is not established. The informant is not examined. Informant is a lady, who is the wife of deceased. She was also not traceable for giving evidence before the learned Trial Court, though, she is a witness referred in chargesheet. The fact stated in the First Information Report, has not been proved at all, much less the 6 motive. This aspect of the matter is explicitly clear, looking to para- 10 of deposition of the P.W.1 as well as looking to para- 5, 6 & 7 of deposition of the P.W.3. 9. So far as confessional statement is concerned, which is at Exhibit-3 it appears that the confession was made before the police and is not admissible evidence as per Section 25 of the Indian Evidence Act, 1872. So far as recovery of weapon is concerned, looking to the deposition of P.W.6 and P.W.7, they have stated that the knife was recovered from the public place. In fact, the prosecution has not examined seizure list witnesses at all. The so- called recovery of weapon was from the public place, which was not confined place at all. Moreover, after seizure of this knife, looking to the deposition of P.W.8, the same was never sealed. There was no blood stains upon the weapon seized. There was no F.S.L. Report at all. It has been held by the Hon'ble Supreme Court in the case of “State of M.P. Vs. Kriparam” reported in (2003) 12 SCC 675 as under: “9........ Be that it may, the prosecution case is that these clothes were bloodstained though washed, still the stains were visible hence were sent to chemical examination which has established the stains were of blood. Therefore the same was sent to serologist who opined that he could not give an opinion as to the origin of the blood meaning thereby that the bloodstain that was noticed by him on the clothes cannot be said to be that of human origin. In such situation this circumstance of recovery of bloodstained clothes will be of no assistance to the prosecution. 10. Similar is the case in regard to recovery of an axe. In regard to this, witnesses for the recovery say, they found a small stain of blood on it. The serologist in regard to this blood also states that it is not possible to find out the origin of the same. Therefore, even this recovery would not in any manner help the prosecution in this case. Even otherwise, if the prosecution case in regard to P.Ws 1 and 3 is not acceptable then these recoveries by themselves would not take the prosecution case any further.” (Emphasis supplied) 10. In view of aforesaid decision, the recovery of the weapon 7 alone is not useful to the prosecution unless the Serologist report received by the prosecution about the blood stains, otherwise recovery is meaningless. Whether the said knife was at all used for committing murder of the deceased by the appellant has not been proved at all. This aspect of the matter has not been appreciated by the learned Trial Court. In fact the recovery of the knife is no recovery in the eye of law. Thus, the confessional statement at Exhibit-3 is not leading to any recovery under Section 27 of the Indian Evidence Act and therefore, the whole confessional statement which is at Exhibit-3 becomes inadmissible evidence as per Section 25 of the Indian Evidence Act. 11. It has been also held by the Hon'ble Supreme Court in the case of “ Brijesh Mavi Vs. State (NCT of Delhi)”, reported in (2012) 7 SCC 45 as under : “35. In the above context the decision of this Court in Abdulwahab Abdulmajid Baloch v. State of Gujrat would be of particular significance . Though the observations contained in paras 37 and 38 of the judgement have to be understood to have been rendered in the context of the facts of the case we find that the said observations would squarely apply to the present case. Consequently the aforesaid two paragraphs may be usefully extracted hereinbelow: “37. Be that as it may, we feel that only because the recovery of a weapon was made and the expert opined that the bullet found in the body of the deceased was fired from one of the weapons seized, by itself cannot be the sole premise on which a judgment of conviction under Section 302 could be recorded. There was not direct evidence. The accused, as noticed hereinbefore, was charged not only under Section 302 read with Section 34 of the Penal Code but also under Section 302 read with Section 120-B thereof. The murder of the deceased was said to have been committed by all the accused persons upon hatching a conspiracy . This charge has not been proved. 38. The learned trial Judge himself 8 opined that the recovery having been made after nine months, the weapon might have changed many hands. In absence of any other evidence connecting the accused with commission of crime of murder of the deceased, in our opinion, it is not possible to hold that the appellant on the basis of such slander evidence could have been found guilty for commission of offence punishable under Section 302 of the Penal Code.” 36. Though the above discussions would lead us to the conclusion that the prosecution , in the present case, has succeeded in proving a highly incriminating circumstance against the appellant-accused, yet, we do not consider that it would be wholly safe to hold that the only conclusion that can follow from the aforesaid proved circumstance is that the accused Brijesh is responsible for the death of the deceased that had occurred on 6-6-2001. We have also noticed that the High Court has convicted the appellant-accused under Section 302 as well as Section 460 I.P.C. With the aid of Section 34. In a situation where co-accused Satish had died during the trial and the other co-accused Med Singh had been acquitted by the High Court, the culpability of the present appellant-accused with the aid of Section 34 will be open to l serious doubt. Such culpability will have to be determined on the basis of individual overt acts on the part of the appellant-accused for which we do not find any cogent and reliable material on record.” (Emphasis Supplied.) 12. In view of the aforesaid decision also there may be highly incriminating circumstance against the accused, yet it will not be safe to rely upon the same unless those incriminating articles are connected with the fact of the murder. Culpability of the accused will not be established unless the incriminating articles are connected with the murder. 13. It is also submitted by the counsel for the State-A.P.P. that there was recovery of the blood stained earth and grass, at the instance of this appellant-accused. The recovery of incriminating articles have also not been examined by the F.S.L and there is no report for these two articles and therefore, as per the decision stated hereinabove, these incriminating articles are not connected with the murder of the deceased nor these incriminating articles can fetch 9 the proof beyond reasonable doubt about the murder of the deceased which has been committed by this appellant . 14. In view of the evidences on record, the prosecution has failed to prove the offence of murder of the deceased to have been committed by this appellant beyond reasonable doubt. Learned Trial Court has not properly appreciated these aspects of the matter. We, therefore, quash and set aside the judgment of conviction dated 15.12.2005 and order of sentence dated 16.12.2005 passed by the 5th Additional Sessions Judge, (F.T.C.) Jamtara, in Sessions Case No. 08 of 2005/ 114 of 2003). The appellant is acquitted from the charges levelled against him. The appellant shall be released forthwith from the judicial custody, if his presence in Jail is not required in any other offence. This criminal appeal is allowed. 15. Interlocutory Application No. 2298 of 2013 is also disposed of in view of the final disposal of the criminal appeal. This Interlocutory Application has been preferred because counsel Mr. Ravi Prakash wants to withdraw himself with his consent from the matter. We are not allowing this Interlocutory Application because counsel Mr. Ravi Prakash is also counsel in the panel of the Jharkhand Legal Services Authorities and he is otherwise, ready for final hearing of this criminal appeal. (D.N. Patel, J.) (Shree Chandrashekhar, J) Jharkhand High Court, Ranchi Dated 15th day of May, 2013. Shanant/Tanuj/ N.A.F.R.