The High Court · 2023
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (DB) No. 1034 of 2016 ------- Ganesh Sao, Son of Bhikhar Sao, resident of Village + P.S. + P.O. – ... Appellant Pratappur, District – Chatra, Jharkhand State of Jharkhand Versus ... Respondent Criminal Appeal (DB) No. 962 of 2016 With ------- 1. Pramod Sao 2. Sunil Sao. both sons of late Badri Sao 3. Satrughan Sao S/o Late Dasrath Sao All resident of village & P.S. & P.O. Pratappur, District- Chatra. ... Appellants The State of Jharkhand Versus --------------- ... Respondent
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Appellant(s) For the State : Mr. Binod Singh, Advocate : Ms. Rajika Mahali, Advocate : Mr. Awnish Shankar, Amicus [in Cr. Appeal (DB) No. 1034 of 2016] : Mr. Dilip Kumar Prasad, Advocate [ in Cr. Appeal (DB) No. 962 of 2016] : Mr. Saket Kumar, APP [in Cr. Appeal (DB) No. 1034 of 2016] : Mrs. Vandana Bharti, APP [ in Cr. Appeal (DB) No. 962 of 2016] --------------- Per, Shree Chandrashekhar, J.
Decision
O R D E R 15th September 2023 Cr. Appeal (DB) No. 1034 of 2016 has been filed by Ganesh Sao who faced the trial on the charge under sections 302 and 201 read with section 34 of the Indian Penal Code and sections 3/4 of the Prevention of Witch (Daain) Practices Act, 1999 in ST Case No. 243 of 2012. Pramod Sao, Sunil Sao, and Satrughan Sao were sent up for trial on similar charges in S.T. Case No. 283 of 2013. 2 Criminal Appeal (DB) No. 1034 of 2016 With Criminal Appeal (DB) No. 962 of 2016 2. By the judgment dated 25th July 2016 passed in S.T. Nos. 243 of 2012 and 283 of 2013, Ganesh Sao, Pramod Sao, Sunil Sao and Satrughan Sao have been convicted and sentenced to imprisonment for life with different fine amounts under section 302/34 of the Indian Penal Code and R.I. for one year with fine of Rs. 5000/- under section 201/34 of the Indian Penal Code. 3. In paragraph no. 41 of the judgment under challenge, the trial Judge has apportioned the amount of fine imposed upon the convicts under section 302/34 of the Indian Penal Code in the following manner: “41.Thus all these four convicts are directed to undergo rigorous imprisonment for life and also to pay fine, in the manner that Ganesh Sao, being the main master of this crime, shall pay Rs. 50,000/ (Fifty Thousand) and each in rest of the three shall pay Rs 40,000/ (Forty Thousand) totaling Rs. 1,70,000/ (One lac seventy thousand), for the offence punishable under section 302/34 of the IPC. Out of this amount, Rs. 1,50,000/ (One Lac Fifty Thousand) shall be paid to the father of the deceased (the informant) as compensation and to defray the expenditure of the proceedings etc as provided under section 357 (1)(b) & (c) of the Cr. P.C. which shall be subject to the provisions of section 421 of the Cr.P.C. 42. Rest of Rs. 20,000/ (Twenty Thousand) Rs. 5000/ Five Thousand each) shall be paid in the Govt. fine head, failing which, each of them shall separately undergo Simple imprisonment for a period of three months.” Pratappur P.S. Case No. 41 of 2012 was lodged on the 4. basis of a written report dated 07th June 2012 submitted by Rajendra Sao to the officer-in-charge of Pratappur P.S. making an allegation against Ganesh Sao, Suman Kumar Sao, Pintu Sao, Satrughan Sao, Pramod Sao and Sunil Sao, that these accused committed murder of his son and caused disappearance of his dead body. On the basis of the aforesaid statement made by Rajendra Sao, a First Information Report was lodged under sections 302/201/34 of the Indian Penal Code against the above- named accused. After the investigation charge sheet no. 76 of 2012 was laid on 03rd September 2012 against Ganesh Sao who was sent up for trial in S.T. No. 243 of 2012. Later on, Pramod Sao, Sunil Sao and Satrughan Sao were sent up for trial through charge sheet no. 57 of 2013 dated 29th July 2013 and, as noticed above, S.T. No. 283 of 2013 was registered against them. 5. Now what transpires from the records is that depositions of nine witnesses were recorded separately in both the sessions trials and 3 Criminal Appeal (DB) No. 1034 of 2016 With Criminal Appeal (DB) No. 962 of 2016 thereafter by an order dated 30th April 2014 both sessions trials were amalgamated. In the judgment dated 25th July 2016, the Additional Sessions Judge-V at Chatra has recorded that by an order dated 30th April 2014 S.T. Case No. 243 of 2012 was amalgamated with S.T. No. 283 of 2013. 6. Mr. Binod Singh, the learned counsel for Ganesh Sao has drawn our attention to the testimony of witnesses, particularly, Mahangu Bharti who was examined as PW- 4 in S.T. No. 243 of 2012 (and as PW – 2 in S.T. No. 283 of 2013). We have also seen that many of the witnesses in S.T. No. 283 of 2013 were declared hostile at the instance of the prosecution. Notwithstanding that, a common judgment has been written in S.T. No. 243 of 2012 with S.T. No. 283 of 2013. Evidently, the trial Judge committed a serious procedural error while writing the judgment dated 25th July 2016. This is a fundamental rule in a criminal trial that in supplementary trials which proceed after the arrest of the absconding accused if the trial Judge is of the opinion that the trial in the main case has not progressed or at least not substantially progressed, after amalgamating both the sessions trials, an opportunity must be given to the defence for further cross-examination of the prosecution witness(s) and, that too, after recording a statement of the Public Prosecutor that the prosecution does not want fresh examination of those witnesses like in a de novo trial. After having examined nine witnesses separately; PW 1 and PW 2 in S.T. No. 243 of 2012 were declared hostile; PW 1, PW 2 and PW 4 were declared hostile in S.T. No. 283 of 2013, by no rule of law or practice both the sessions trials could have been amalgamated. 7. and the judgment dated 25th July 2016, without examining the effect of However, having gone through the materials on record the procedural errors committed by the Sessions Judge, we have formed an opinion that the conviction of the appellants cannot be sustained in law. 8. The case of the prosecution is that the accused suspected witchcraft by the informant which had caused the death of the daughter of Ganesh Sao and, that is the reason, Ganesh Sao and others took away Anil Kumar aged about 8 years on the pretext of offering Khajoor 4 Criminal Appeal (DB) No. 1034 of 2016 With Criminal Appeal (DB) No. 962 of 2016 (dates) and committed his murder. 9. In the first place, the trial Judge has held that the charge under section ¾ of the Prevention of Witch (Daain) Practices Act, 1999 has failed and while so, the initial story of the prosecution that the motive behind the murder of Anil Kumar was the suspected witchcraft practiced by the informant Rajendra Sao lost its ground. 10. The main plank of the prosecution to prove the charge of murder against the appellants is that Priyanka Kumari and Suman Kumari who are the sisters of the deceased had seen the accused taking away their brother towards Khajoor tree. 11. On 19th May 2014 when Priyanka Kumari tendered evidence as PW 6 she was aged about 12 years. Section 118 of the Indian Evidence Act provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions. The trial Judge asked a few questions to assess the maturity of PW 6 and has recorded that the witness is competent to take oath. 12. PW 6 deposed in the Court that around 4:00 PM on 2nd June 2012 her brother was with Ganesh Sao, Suman Kumar Sao, Pintu Sao, Satrughan Sao, Pramod Sao and Sunil Sao. On a query the accused told her that they were going with Anil Kumar and they assured her that her brother would come back soon. She further stated that around 6:00 PM. the same day she inquired from the accused about the whereabouts of her brother but, at that time, the accused expressed their ignorance. In the evening, around 7:00 PM, she went on a search with her mother and again asked the accused about her brother but they did not provide any information. According to PW 6, the accused had again assured her saying that “Tumhara Bhai Kha Pee Kar Tanch Hoga Jaisa Ghar Me Nahi Milta Hoga Waisa Khana Milta Hoga”. 13. In the cross-examination, PW 6 admitted that on the day of the occurrence her father was not at home; she did not inform her father after her brother had gone missing and the next day when her father came back home her father lodged information with the police. 14. PW 7 who is another sister of the deceased made a 5 Criminal Appeal (DB) No. 1034 of 2016 With Criminal Appeal (DB) No. 962 of 2016 statement in the Court that the accused on the pretext of eating dates had taken away her brother and when her brother did not come back home on enquiry they expressed their ignorance. PW 7 admitted in the Court that she has not seen the occurrence. 15. Mahangu Bharti, a nearby village resident and examined as PW2, did not support the prosecution in S.T. No. 283 of 2013. However, he made a serious allegation of assault upon Anil Kumar by Ganesh Sao who is the appellant in S. T. No. 243 of 2012. 16. The defence set up by the appellants in the trial was that PW 4 is a planted witness. In its effort to impeach the credit of PW 4, the defence elicited from him that he is a resident of another village. It further appears that PW 4 did not make any statement before the police and deposed in the Court that he was making the aforesaid statements for the first time. 17. The conduct of PW 4 is seriously criticized by Mr. Awnish Shankar, the learned Amicus and Mr. Binod Singh, the learned counsel for Ganesh Sao on the ground that a witness who claims to have seen assault upon the deceased but did not intervene or inform the police or any other person is not a reliable witness. No doubt the conduct of a witness per se is not a ground to discard his testimony and it is also well-settled that different persons may react differently in a similar circumstance, but then, a witness who claims to have acquaintances with persons of Pratappur village from where the deceased belonged headed home even after seeing assault upon him shall lose much of credit and the Court cannot place implicit reliance on his testimony and the prosecution evidence must be examined excluding evidence of such a witness. 18. The evidence of last seen together as spoken by two sisters of the deceased does not indicate any other offending act by the appellants. This is not the evidence of PW 6 and PW 7 that while taking away Anil Kumar the appellants were threatening him or beating him or from their conduct it was reasonably inferred that they intended to cause harm to him. Now on the basis of the testimony of PW 6 and PW 7 that they had seen Anil Kumar in the company of the appellants and thereafter Anil Kumar was not seen alive, the appellants cannot be 6 Criminal Appeal (DB) No. 1034 of 2016 With Criminal Appeal (DB) No. 962 of 2016 held guilty for committing the murder of Anil Kumar. This is the prosecution evidence that Anil Kumar was missing since 02nd June 2012 and his dead body was recovered on 07th June 2012. There is no material collected by the investigating officer as regards the place where Anil Kumar was assaulted and acid was poured on his face. This is also coming in the evidence of the prosecution witnesses that Khajoor tree was at a distance of about 15 feet from the well of Sarju Kumar Gupta. There was adjoining barren land of Gumti Devi and an old warehouse (Bhandar) near the place of occurrence. PW 6 and PW 7 had seen Anil Kumar going with the appellants around 4:00 PM and, according to PW 4, the appellants were assaulting Anil Kumar around 6:00 PM. It was summer of 2012 and the sun would set at around 6:32 PM on that day. However, no other villager came to the Court to depose that he had seen the appellants assaulting Anil Kumar. 19. From the evidence of the prosecution witnesses, this becomes clear that on suspicion they involved the appellants in the crime. None of them has seen assault upon Anil Kumar and that is the reason they tried to make improvements in the Court. In our opinion, the prosecution has failed to establish that the appellants in furtherance of common intention committed the murder of Anil Kumar and caused the disappearance of his dead body by throwing it in the well. 20. Having regard to the aforesaid facts and circumstances in the case, we hold that the conviction of the appellants in S.T. No. 243 of 2012 and S.T. No. 283 of 2013 cannot be justified and, accordingly, the judgment of conviction dated 25th July 2016 passed in S.T. No. 243 of 2012 and S.T. No. 283 of 2013 and sentence thereto awarded to the appellants are set-aside. 21. Ganesh Sao who is in custody shall be set free forthwith if not wanted in connection to any other case. 22. Pramod Sao, Sunil Sao and Satrughan Sao are discharged of liability of the bail bonds furnished by them pursuant to order dated 11th August 2017. 23. Criminal Appeal (DB) No. 1034 of 2016 and Criminal Appeal (DB) No. 962 of 2016 are allowed. 24. We appreciate the assistance rendered by the learned 7 Criminal Appeal (DB) No. 1034 of 2016 With Criminal Appeal (DB) No. 962 of 2016 Amicus and the learned APP who have meticulously prepared the short synopsis, list of dates and charts on prosecution evidence. 25. I.A. No. 7392 of 2023 is disposed of. 26. Let the lower Court records be sent back to the Court concerned forthwith. 27. Let a copy of the order be transmitted to the Court concerned and the concerned Jail Superintendent through FAX. (Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Jharkhand High Court, Ranchi Dated: 15th September 2023 Saurav/Pankaj- N.A.F.R