BHOLA TURI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present appeals have been preferred by the appellants-accused against the judgment of conviction dated 26th August, 2002 and order of sentence dated 27th August, 2002 passed by the Additional Sessions Judge-III, Dhanbad in Sessions Trial No. 55 of 2000 whereby the present appellants have been mainly punished for an offence under Section 302 of the Indian Penal Code for life imprisonment. It is a case of the prosecution that on 13th October, 1998, at about 10.45 A.M., the informant Anuplal Yadav (P.W. 13) gave his statement before the police that he is running grocery shop at C Block, Bhuli at the quarter of BCCL in the city of Dhanbad. On 13th October, 1998, at about 10.15 A.M., while the informant was sitting in his grocery shop, the boys of Imperial School were raising hulla that one boy has been killed and he has been beheaded near Kali Mandir. Several people of the BCCL Colony were going at the scene of offence. The informant Anuplal Yadav (P.W. 13) also went there and he told his nephew Subodh Yadav to remain in the shop and the informant Anuplal Yadav went at the scene of offence where he saw that, between Community Hall and the Gas Godown, the neck of his elder son Akhilesh Kumar Yadav, aged about seven years, was cut. Then informant alongwith one Subhash Chandra brought his son to the hospital where the Doctor declared him dead. Thereafter, he asked the people about the occurrence and he came to know that two sisters of one Sohan Rajak and one lady were performing Puja in the nearby temple at the time of occurrence and they had seen the occurrence. It has also been stated in the F.I.R. that son of the informant Akhilesh Kumar Yadav (deceased), Prahlad Mandal (P.W. 8) and Chhotu Turi @ Arjun Turi (P.W. 9) were playing together. Thereafter, Ranju Kumari (P.W. 10), who is a sister of Sohan Rajak, told the informant that one boy wearing yellow Baniyan, Jeans Pant and Shoes had cut the neck of the deceased and was running towards north but Ranju Kumari (P.W. 10) did not raise alarm. Then, Prahlad Mandal (P.W. 8) told the informant that he, Chhotu Turi (P.W. 9) and the deceased were playing near Kali Mandir and at that time, Bhola Turi (appellant of Criminal Appeal No. 668 of 2002), who is elder brother of Chhotu Turi came wearing Jeans Pant and yellow Baniyan and shoes. Thereafter, Chhotu Turi alias Arjun Turi, who is a brother of Bhola Turi, told the informant that his elder brother Bhola Turi was present near Kali Temple and Chhotu Turi, deceased and Prahlad Mandal were playing near Kali Temple and then Prahlad Mandal came to house and Chhotu Turi also came to his house upon the instruction from his brother Bhola Turi whereas son of the informant i.e. deceased remained there. It is also alleged by this P.W. 13 who is informant that he believes that his son has been murdered by Bhola Turi by sharp cutting instrument due to some enmity and on the basis of this statement before the police, the investigation was carried out. Several statements of the prosecution witnesses were recorded. Charge-sheet was filed against as many as five accused persons and on the basis of the prosecution witnesses P.W. 1 to P.W. 14, original accused No. 1 and original accused No. 2, in the Sessions Trial No. 55 of 2000 were convicted for the offence of murder of deceased and they were punished for life imprisonment and fine of Rs. 1,000/- (Rs. One Thousand) to each of the accused vide order dated 26/27 August, 2002. Against this judgment and order of conviction and sentence, the present appeals have been preferred by original accused No. 1 and original accused No. 2.

(2.) We have heard Shri Pravir Chatterjee and Shri Ganesh Pathak, counsel appearing for the appellants at length. They have mainly submitted that the prosecution have failed to prove the offence of murder beyond all reasonable doubts which have been committed by these appellants. There are major omissions and contradictions in the deposition of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned Trial Court. Moreover, there is no eye witness of the incident. Neither Test Identification Parade has been conducted by the prosecution. It is also submitted by counsel for both the appellants that neither P.W. 8 nor P.W. 9, who are the boys who were present with the deceased, have given the deposition that the present appellants have committed murder of the deceased. Similarly, neither P.W. 6 nor PW. 10 have stated before the learned Trial Court that the appellant Bhola Turi was wearing yellow T-Shirt and Blue Jeans Pant. The whole case of the prosecution is based upon so-called recovery of Yellow T-shirt and blue Jeans Pant at the behest of the appellant accused. It is also submitted by the learned counsel for the appellants that for the recovery of yellow T-Shirt and Blue Jeans Pant, there are several contradictions in the depositions of the prosecution witnesses. P.W. 1 says that there was a recovery of a half pant. Thus, nothing is there about pant or half pant. As per the deposition of the prosecution witness it is also submitted by the learned counsel for both the appellants that P.W. 11 has never stated before the learned Trial Court that the knife, which was seized by the prosecution, was recovered at the behest of the appellant-accused. Whether accused were present or not at the time of recovery of knife, that is also neither conveyed by the P.W. 11 before the learned Trial Court. Much less it has not been stated by P.W. 11 whether the recovery of the knife was because of original accused No. 1 or because of original accused No. 2. Thus, neither the recovery can be connected, nor the recovery of Half Pant or Blue Jeans Pant is connected with the accused nor the recovery of knife is also connected with accused and, therefore, the confession before Police about the guilt of the offence is hit by Section 26 of the Indian Evidence Act, 1872. This aspect of the matter has not been properly appreciated by the learned Trial Court and hence, the judgment or order of conviction and sentence passed by the learned Trial Court deserves to be quashed and set aside.

(3.) We have heard the learned A.P.P. appearing for the State Shri Krishna Shankar. He has submitted that the prosecution has proved the offence of murder of Akhilesh Kumar Yadav by these appellants beyond all reasonable doubts. It is submitted by learned A.P.P. that the case of the prosecution is mainly based upon the depositions of two children P.W. 8 and P.W. 9 who were playing with the deceased near Kali Temple and at the time of occurrence at Kali Temple, two ladies, who are P.W. 6 and P.W. 10, were performing some Puja and they have also seen a boy wearing yellow T-Shirt and Blue Jeans Pant was running out from the place of occurrence. It is submitted by learned A.P.P. that they have given clear deposition before the learned Trial Court and the learned Trial Court has committed no error in appreciating the depositions of these witnesses. It is also submitted by the learned A.P.P. that there is recovery of yellow T-Shirt and Blue Jeans Pant at the behest of appellant-accused. As per the deposition given by P.W. 1 and P.W. 3 and other prosecution witnesses likewise, there is also recovery of bloodstained knife at the behest of these appellants-accused. This fact is also proved by the deposition of P.W. 8 and P.W. 4 as well as by the deposition of P.W. 11 and looking to the deposition of other prosecution witnesses, it has been proved beyond all reasonable doubts that these two appellants have committed murder of the deceased. This aspect of the matter has been properly appreciated by the learned Trial Court and hence this court may not interfere with these criminal appeals preferred by these appellants-accused.