Allowed

Balay Banerjee Shishir Banerjee v. State of Jharkhand

Jharkhand HC19 Jul 2018Cr.A(DB)/236/2009

Case brief

AI extract

What is this about?

The Division Bench acquitted the appellant convicted under Section 302 IPC. The appeal was allowed because conviction relied solely on an inadmissible police confession, and post-mortem evidence was inconsistent with alleged sharp weapon injuries.

What did the court decide?

Impugned judgment and sentence set aside; appellant found not guilty, acquitted, and directed to be released forthwith.

Balay Banerjee Shishir Banerjee Vs State of… — Murder and Culpable Homicide | Jharkhand HC (2018)

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Criminal Appeal (D.B.) No. 236 of 2009 - 1 -

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B.) No. 236 of 2009

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(Against the Judgment of conviction dated 22.11.2008 and Order of sentence dated 28.11.2008, passed by the Additional Judicial Commissioner, F.T.C.-VIII, Ranchi, in Sessions Trial No. 98 of 2007).

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Balay Banarjee

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@ Shishir Banarjee ….. … Appellant Versus The State of Jharkhand .…. … Respondent -------For the Appellant : Mr. Ashutosh Prasad Joshi, Advocate Mr. Pratiush Lala, Advocate For the Respondent-State : Mr. Sanjay Kumar Pandey-II, A.P.P.

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PRESENT

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HON’BLE MR. JUSTICE H.C. MISHRA HON’BLE MR. JUSTICE B.B. MANGALMURTI

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By Court. :- Heard learned counsel for the appellant and learned counsel for

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the State.

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The sole appellant is aggrieved by the impugned Judgment of conviction dated 22.11.2008 and Order of sentence dated 28.11.2008, passed by the learned Additional Judicial Commissioner, F.T.C.-VIII, Ranchi, in Sessions Trial No. 98 of 2007, whereby, the appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life with fine of Rs.5,000/-, for the said offence.

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The prosecution case was instituted on the basis of the fardbeyan of the informant Nirmal Bediya, who was an employee in the poultry farm of the deceased Vinay Banarjee, recorded on 10.08.2006 at the poultry farm of the deceased, situated at village Khirabera Basbagan, P.S. Ormanjhi, District Ranchi, wherein, the informant has stated that on 09.08.2006 after the sale of chicken in the poultry farm, the informant went away. In the morning at about 08:00 A.M., the informant again came to the poultry farm on his duty, when he saw that there was a mob standing near the poultry farm and the owner Vinay Banarjee was lying dead in the pool of blood. There was bleeding injury on the head and injuries on the other parts of the body. He has stated that in the presence of the police and in the presence of the witnesses, as also

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Criminal Appeal (D.B.) No. 236 of 2009 - 2 -

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the informant, the accused Balay Banarjee, who is the own younger brother of the deceased, confessed that he had committed the murder of the deceased in the previous night at about 11.00 P.M., after an altercation between the deceased and the accused in which the deceased had abused the accused and his wife in filthy languages, whereupon, he had assaulted the deceased by a bamboo and dabia (sharp cutting weapon). The informant has also stated that there was enmity between the deceased and the accused due to property. On the basis of the fardbeyan of the informant, Ormanjhi P.S. Case No. 78 of 2006, corresponding to G.R. No. 1738 of 2006, was instituted against the accused for the offence under Section 302 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the charge-sheet against the accused.

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After commitment of the case to the Court of Session, charge was framed against the accused for the offence under Section 302 of the Indian Penal Code, and upon the accused’s pleading not guilty and claiming to be tried, he was put to trial.

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From the evidence on record, we find that the prosecution has examined seven witnesses in the case including P.W.-3 Dr. Tulsi Mahto, who had conducted the post-mortem examination on the dead body of the deceased on 10.8.2006, and had found the ante-mortem injuries caused by hard and blunt substance only, which were abrasions on the different parts of the body, one bruise on the left scapular region of the chest, and two lacerated wounds over left eyebrow. On dissection, several ribs were found broken, with contusion of both the lungs and liver, and blood and blood clots were found in the chest cavity and also in the abdominal cavity, which were found to be the cause of death. He has proved the post-mortem report as Ext.-2.

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The other material witnesses are P.W.-1 Ram Dhan Bedia, P.W.-2 Amanat Ansari, P.W.-4 Shibu Bedia and P.W.-5 Nirmal Bedia, the informant in the case, and these witnesses have stated that they reached the place of occurrence in the morning, where they saw the dead body of the deceased. They have also stated that the accused made the confessional statement before them in the presence of the police and the recovery of the blood stained weapons and clothes were made from the place of occurrence itself. P.W.-4 Shibu Bedia, however, has not stated that such confessional statement was made in presence of the police, but the evidence of the I.O. P.W.-6

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Criminal Appeal (D.B.) No. 236 of 2009 - 3 -

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Dig Vijay Singh, clearly shows that confession was made by the accused before the police, in presence of the witnesses, including P.W.-4 Shibu Bedia also. As such, it is apparent that all the witnesses are witness to the fact that the confessional statement was made by accused in presence of the police officer and these witnesses.

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P.W.-6 Dig Vijay Singh is the I.O. of the case, who has proved the necessary documents in the case, i.e., the fardbeyan, F.I.R., inquest report and seizure-list etc., and he has stated that in his presence, and the presence of the witnesses, the accused had confessed his guilt. His confessional statement was also recorded, which he has proved, and the same was marked as Ext.-8. This witness has stated that on the basis of the confessional statement, the recovery of the weapons of offence, i.e., blood stained bamboo and daab (sharp cutting weapon), blood stained clothes and soil, were made from the house of the accused in the presence of the witnesses, and he has proved the seizure-list as Ext.-9. A bare perusal of Ext.-9 clearly shows that the recovery was made from the poultry farm of the deceased and not from the house of the accused. Thus, the evidence of the I.O., that recovery was made from the house of the appellant on the basis of his confessional statement, just cannot be relied upon.

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P.W.-7 is Yoga Nand Thakur, who is a Technical Officer of F.S.L., Ranchi, and he has only proved that the blood on the recovered weapons and articles, were human blood.

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From the evidence on record, we thus, find that the only evidence against this appellant is that he had confessed his guilt before the police officer in presence of the witnesses. There is no recovery exclusively on the basis of the confessional statement of the accused, rather, the recovery of the blood stained weapons and clothes etc., was made from the place of occurrence itself, where the dead body was also found. Thus, the confessional statement of the accused cannot be said to be leading to any recovery. It is well settled principle of law that the confession made before the police officer has no evidentiary value and it cannot be taken into evidence against the accused, under Section 25 of the Indian Evidence Act.

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We are of the considered view that on the basis of the materials on record, which are only the pieces of evidence that the appellant accused had confessed his guilt before the police officer in presence of the witnesses,

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Criminal Appeal (D.B.) No. 236 of 2009 - 4 -

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the conviction of the appellant could not be based at all. This apart, even though it is alleged that the deceased was assaulted by daab also, and blood stained daab was also recovered, but the evidence of P.W.-3 Dr. Tulsi Mahto, and the post-mortem report proved by him as Ext.-2, clearly show that no injury caused by any sharp cutting weapon was found on the dead body of the deceased. As such, we are of the considered view that the prosecution has failed to bring home the charge against the accused, and in the facts of this case, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law.

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For the foregoing reasons, the impugned Judgment of conviction dated 22.11.2008 and Order of sentence dated 28.11.2008, passed by the learned Additional Judicial Commissioner, F.T.C.-VIII, Ranchi, in Sessions Trial No. 98 of 2007, convicting and sentencing the appellant Balay Banarjee @ Shishir Banarjee, for the offence under Section 302 of the Indian Penal Code, are hereby, set aside. Consequently, the appellant is found not guilty and he is acquitted of the charge. The appellant Balay Banarjee @ Shishir Banarjee is in custody, undergoing the sentence. Let him be released and set at liberty forthwith, if his detention is not required in any other case.

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This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.

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(B.B. Mangalmurti, J.)

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Jharkhand High Court, Ranchi Dated, the 19^th July, 2018. Birendra / R.P./NAFR

Balay Banerjee Shishir Banerjee v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Balay Banerjee Shishir Banerjee v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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