SANJAY KERKETTA Vs. STATE OF BIHAR (NOW JHARKHAND)

JUDGEMENT

(1.) THESE appeals have been directed by the appellants, namely, Sanjay Kerketta (in Cr. Appeal No. 77 of 1996), Barnabas Topno (in Cr. Appeal No. 104 of 1996), Anil Barla @ Anil Munda @ Anil Kumar Barla (in Cr. Appeal No. 125 of 1996), Silvestar Kerketta (in Cr. Appeal No. 137 of 1996) and Ajit Barla @ Ajit Munda (in Cr. Appeal No. 201 of 1996) against the impugned judgment dated 18.04.1996 and order dated 20.04.1996 respectively passed by Shri R.P. Verma, 1st Additional Sessions Judge, Gumla in S.T. No. 197 of 1993 whereby and whereunder they were found guilty for the offence punishable under Section 3021 34 of the Indian Penal Code and they were convicted and sentenced to undergo R.I. for life. However, they were not found guilty for the offence punishable under Section 201 of the Indian Penal Code and they were acquitted in respect thereof. 2. The prosecution case has arisen on the basis of the fardbeyan (Ext.3) of P.W. 9, Ghanshyam Singh recorded by P.W.13, Gupteshwar Singh, S.I. of Kamdara P.S. near Latra Panchayat Bhawan at village Latra on 21.01.1993 at 8.15 hours regarding the occurrence which is said to have taken place at Chorchuwa More in village Murumkela Khutiari Tand Jungle at about 18.30 hours on 20.01.1993 regarding the commission of the murder of Krishna Singh and Bandhan Suwashi. The case was instituted against unknown three accused persons on 21.01.1993 at 14.30 hours and the formal EI.R. (Ext.4) along with the fardbeyan was received in the court competent to take cognizance on 22.01.1993. 3. The prosecution case, in brief, is that the informant had gone to Murumkela Bazar on that day at 14.30 hours for purchasing vegetables and after making the purchase he met his co -villagers, namely, Krishna Singh and Bandhan Suwashi in the said market. It is alleged that the informant had also met P.W.8 Raj Kishore Singh, the son of Krishna Singh aforesaid who used to deal in mustard oil in the said market and the said Raj Kishore Singh had gone to the market with a lantern and he had left the market at 18.00 hours after handing over the said lantern to his father Krishna Singh. The prosecution case further is that the informant along with Krishna Singh and Bandhan Suwashi left the market at6 o'clock in the evening on foot for their village Latra via Chorchuwa More and the informant was ahead of them followed by Bandhan Suwashi and, thereafter, Krishna Singh who was carrying the tern in his hand. It is alleged that when they reached near Chorchuwa More of village Murumkela Latra on R.E.O. road near a blackberry tree, three unknown persons armed with Bhujali and dagger came to them from the bush and one of them caught Bandan Suwashi from behind and he assaulted him by Bhujali and one of the rest unknown accused caught Krishna Singh and the third one ran towards the informant to catch hold of him but the informant fled away from there though he was chased up to distance of 100 yards. It is further alleged that the informant while fleeing to his house met Etwa Gope, Baneshwar Mahto near the house of Pandu Munda in village Latra and he narrated to them regarding the occurrence and the informant in their company proceeded towards the place of occurrence but he along with them could not go there because it was dark and they returned from there and, thereafter, the informant came to his house and Etwa Gope and Baneshwar Mahto also went to their respective houses. The prosecution case further is that, thereafter, the informant went to the house of Krishna Singh and, thereafter, to the house of Bandhan Suwashi and enquired from the son of Krishna Singh and the wife of Bandhan Suwashi as to whether they have returned to their houses or not and getting the reply in negative he went to P.W. 7, Kalika Singh and reported him about the occurrence and, thereafter, he in the company of P.W. 7 along with eight or ten persons of the village came to Chorchuwa More where blood stains and the broken lantern were found and they also saw Bandhan Suwashi fallen there and they also found the dead body of Krishna Singh aforesaid on the village path at Murumkela Khutiari Tand Jungle smeared with blood having several injuries. It is further alleged that Prem Pal Singh, the Sarpanch of the village Murumkela was informed about the occurrence besides the inhabitants of village Murumkela and in their company along with local chowkidar Ishaw Munda they again came to the place of occurrence where the bags of the deceased persons were found lying and there was a 10 rupees note in the bag of Bandhan Suwashi and vegetables in the bag of Krishna Singh. The informant and others as per prosecution case kept vigil for the whole night regarding the dead bodies of the deceased aforesaid and in the morning Kamdar P.S. was informed. 4. In course of investigation P.W. 13, the I.O. recovered and seized broken glass of the lantern, one pair of chappal of tyre, one pair of green Hawai chappal, two bags, blood stained Gamcha and vegetables in presence of P.W.7, Kalika Prasad Singh and P.W.3 Gundeshwar Singh and the seizure list (Ext. 6) in respect of those articles was prepared at Chorchuwa More. The I.O. (P.W.13) also recovered blood stained earth near the blackberry tree at Khutiari Tand Jungle, 20 yards west of Chorchuwa More as well as at Chorchuwa More and seized the blood stained earth from both the places and prepared seizure lists in (Ext. 6/1 and 6/2) respect thereof in presence of the aforesaid witnesses who have put their signatures thereon which are Ext. 1 series. P.W. 13, the I.O. has also prepared the inquest report of both the deceased and sent their dead bodies for postmortem. In course of investigation the complicity of the appellants Silvestar Kerketta, Barnabas Topno and Sanjay Kerketta came to light regarding the commission of the murder of both the deceased aforesaid and they were apprehended and they confessed their guilt and their confessional statements Ext. 7 series were recorded and the Bhujali in question which is said to be the weapon of assault in this case was recovered by P.W. 13, the I.O. from the house of the appellant Silvestar Kerketta in pursuance of their confessional statement in presence of P.W. 10 Prem Pal Singh and P.W.6, Gobind Prasad Singh and the said blood stained Bhujali was seized and the seizure list was prepared which is Ext. 6/3 in this case and P.Ws. 6 and 10 have witnessed the said recovery and seizure and they have put their signatures thereon. The said Bhujali is material Ext. I in this case. The said Bhujali along with the blood stained earth seized from both the places of the occurrence of this case were also sent to the Forensic Science Laboratory, Ranchi for examination and the report of the Forensic Science Laboratory (Ext.8) has confirmed the existence of human blood on the said Bhujali as well as in the earth aforesaid. The report, however, further recites that the report regarding the group of the blood in respect thereof shall follow but the report of the Forensic Science Laboratory regarding the grouping of the blood has not been brought on the record. It further appears that in course of investigation, appellants Silvestar Kerketta. Barnabas Topno and Sanjay Kerketta were put on tl. Parade and they were identified by P.W. 9, the informant as the participant in the occurrence in question. However, the test identification chart has neither been taken into evidence nor the Judicial Magistrate conducting the T.I. Parade has taken oath in this case. However, the appellants Ajit Barla @ Ajit Munda and Anil Barla @ Anil Munda @ Anil Kumar Barla have not been put on T.I. Parade in course of investigation but their names had appeared in the confessional statement of the appellant Barnabas Topno and Silvestar and Sanjay Kerketta and they were also prosecuted in this case. 5. All the appellants have pleaded not guilty to the charge levelled against them and they claims themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case. 6. The prosecution has in all examined 13 witnesses to substantiate the charge levelled against the appellants. P.W.9. Ghyanshyam Singh, the informant claims himself to be the ocular witness of the occurrence though on the basis of his fardbeyan (Ext. 3) case was instituted against the unknown accused persons. P.Ws. 1.2,7 and 8 are the heresay witnesses of the occurrence in question. P.Ws 3.4.5.6.10 and 11 have turned hostile in course of their evidence and they do not at all support the prosecution case coupled with the fact that they have also no occasion to witness the occurrence. P.Ws. 6 and 10 are the witnesses of the seizure of the blood stained Bhujali alleged to have been recovered from the house of the appellant Silvestar Kerketta in pursuance of his confessional statement made before the police but these two seizure witnesses have also turned hostile and do not support the recovery and seizure of the said blood stained Bhujali in their evidence on oath. P.W. 12. Dr. A.D.N. Prasad has conducted the postmortem examination on the dead body of both the deceased and the postmortem report in. respect of Krishna Singh and Bandhan Suwashi are Ext. 2 and 2/1 respectively. P.W. 13, Gupteshwar Singh is the I.O. of this case who has recorded the fardbeyan (Ext.3) of P.W.9. the informant and had prepared the inquest report (Ext.5) series and the seizure list (Ext.6) series and he has also recorded the confessional statement (Ext. 7) series of the appellant Silvestar Kerketta, Barnabas Topno and Sanjay Kerketta. No oral and documentary evidence has been brought on the record on behalf of the defence. 7. In view of the oral and documentary evidence on the record the learned court below has found all the appellants guilty for the commission of the murder of Krishna Singh and Bandhan Suwashi in the occurrence in question and has convicted and sentenced them as stated above. 8. Assailing the impugned judgment as perverse and against the weight of the evidence on the record it has been submitted by the learned counsel for the appellants Ajit Barla @ Ajit Munda and Anil Barla @ Anil Munda @ Anil Kumar Barla that there is no iota of evidence at all on the record even to connect or implicate them with the occurrence in question specially in view of the fact that there is averment in the fardbeyan that only three criminals had participated in the occurrence in committing the murder of the deceased whereas chargesheet has been submitted against seven persons. It has also been submitted that the aforesaid two appellants were never put on T.I. Parade and there was no question of their identification by P.W.9, the informant, either at the place of occurrence or anywhere else and the prosecution of these two appellants is nothing but the abuse of the process of law. 9. It has been submitted by the learned counsel for the rest of the appellants that according to the averment made in the fardbeyan it was dark when the incident has taken place and the lantern which Krishna Singh, the deceased was carrying was damaged and broken by the criminal and the said Krishna Singh was behind Bandhan Suwashi, the deceased and P.W. 9, the informant was ahead of them and when one of the criminals attempted to apprehend him he fled away and he was chased up to the distance of 100 yards and in view of the facts aforesaid P.W.9, the informant can have no occasion to witness the occurrence and to identify the criminals who had participated in the occurrence. It has further been contended that the testimony of P.W.9, the informant is replete with inherent contradictions and improbabilities to cast a cloud of suspicion of his being an ocular witness of the occurrence. It has also been submitted that it appears from the evidence of P.W.9 that all the three "'appellants aforesaid, namely, Silvestar Kerketta, Barnabas Topno and Sanjay Kerketta were known to him from before but it is surprising enough that what prevented him to identify them in course of commission of the offence and to name them in the fardbeyan and thus, their identification in the T.I. Parade by P.W.9 at a very belated stage has lost its relevance and the said identification of these three appellants by P.W.9 in T.I.P. is illegal and it carries no weight. It has further been contended that the Test identification Chart has neither been brought on the record nor the Judicial Magistrate conducting the T.I.Parade has taken oath in this case in support of the prosecution and in view of these legal infirmities, the evidence of P.W.9 regarding identification of these three appellants in the T.I.Parade has no legal effect. Lastly it has been submitted that there is no evidence on the record to show any motive for the appellants to commit the murder of both the deceased in this case. It has also been submitted that the I.O. got information at 7.00 hours on 20.01.1993 regarding the murder of two persons near Murumkela Khutiari Tand Jungle and throwing of their dead bodies in the bush of said jungle and S.D. No. 338 dated 20.01.1993 was recorded in respect thereof and the police, thereafter, proceeded to the place of occurrence, but surprisingly enough, the occurrence as per fardbeyan of the informant has taken place on 20.01.1993 at 18.30 hours which creates reasonable doubts regarding the authenticity of the Station Diary Entry aforesaid in respect of the occurrence in question and furthermore the said Station Diary Entry has been deliberately suppressed by the prosecution for the reasons best known to it. It has also been submitted that the learned court below did not meticulously scrutinize and weigh the evidence on the record in proper perspective and has been swayed by surmises and conjectures in coming to the finding of the guilt of the appellants and in this view of the matter the impugned judgment is unsustainable. 10. It will admit of no doubt that Krishna Singh and Bandhan Suwashi, i.e. both the deceased of this case along with P.W. 9, Ghanshyam Singh, the informant were returning to their village Latra from Murumkela Bazar and they had left that market at 18.00 hours on 20.01.1993 and Krishna Singh was carrying the lantern in his hand in course of his journey along with them. There is no denying the fact that they reached Chorchuwa More at 18.30 hours and in course of journey the informant, P.W. 9, was ahead of them and Krishna Singh was behind them carrying the lantern and in between them there was Bandhan Suwashi. P.W.9 has deposed that when he along with them reached near Chorchuwa More, the criminals came there all of a sudden and he caught Bandhan Suwashi and broke the said lantern. He has further deposed that one of the criminals chased him and he tied away from there. P.W.9 in his evidence does not whisper about Krishna Singh being caught by the criminals at Chorchuwa More. This evidence of P.W.9 is not at all in conformity with the manner of the occurrence as averred in the fardbeyan (Ext.3). According to the fardbeyan it was Krishna Singh who