Allowed

Sirjal Baskey v. State of Jharkhand

Jharkhand HC16 Jan 2019Cr.A(DB)/226/2008

Case brief

AI extract

What is this about?

In this murder appeal, the High Court acquitted the appellant, Sirjal Baskey, who was convicted of murder (IPC Section 302). The appeal was allowed as the prosecution failed to prove the case beyond reasonable doubt due to the absence of eye-witnesses, non-examination of the informant, and reliance on inadmissible statements.

What did the court decide?

Impugned judgment of conviction and sentence set aside; appellant directed to be released from custody immediately if not wanted in other cases.

Sirjal Baskey Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2019)

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Criminal (Jail) Appeal (DB) No. 226 of 2008

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Against the judgment of conviction and order of sentence both dated 10.01.2008 passed by Shri Ram Rudra Prasad Deo, 1^st Additional Sessions Judge, Pakur in Sessions Case No. 101 of 2006.

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Sirjal Baskey	….........Appellant Vrs.
The State of Jharkhand For the Appellant	….......... Respondent ….... : Ms. Amrita Banerjee, Amicus Curiae
For the Respondent	: Mr. Arun Kumar Pandey, Additional Public Prosecutor

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PRESENT

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HON’BLE MR. JUSTICE APARESH KUMAR SINGH HON’BLE MR. JUSTICE KAILASH PRASAD DEO

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Per Kailash Prasad Deo,J.

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Heard learned Amicus Curiae Ms. Amrita Banerjee and Learned counsel for the State Mr. Arun Kumar Pandey, Additional Public Prosecutor.

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The instant criminal appeal has been preferred against the judgment of conviction and order of sentence both dated 10.01.2008 passed by 1^st Additional Sessions Judge, Pakur, in Sessions Case No. 101 of 2006 whereby the learned Trial Court has held the sole appellant Sirjal Baskey guilty for the offence committed and punishable under Section 302 of the Indian Penal Code and awarded sentence of imprisonment for life.

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The prosecution case as unfolded on the basis of fardbeyan of the Informant Tuila Marandi recorded by Sub Inspector of Police Anand Kumar Singh, Officer In-charge, Maheshpur Police Station on 06.04.2006 at about 12.05 hours at village Sahebnagar is that, the informant has stated that marriage of his sister was solemnized with the accused / appellant Sirjal Baskey 5-6 years ago. Informant has further stated that yesterday ( 05.04.2006) at around 10.30 A.M. his sister Tuky Marandi came to his house and in the night at 10.00 PM, husband of Tuky Marandi, Sirjal Baskey also came to his house and asked his sister to come along with him. The informant has stated that his sister will go in the morning but his brother-in-law was insisting and asked her to come along with him. The informant has further stated that his sister was also not interested in going to her sasural but because of insistence of her husband, Sirjal Baskey, she went along with him at around 11.00 PM in the night with her son aged about 7 years. The informant has stated that in the morning at 8.00 AM, informant received an information from the residents of Sahebnagar, that dead body of his sister Tuky Marandi aged about 28 years is lying in the paddy field of village Sahebnagar. Thereafter the informant, his mother and other covillagers went there and saw the dead body lying in the field. The informant

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has stated that two days ago his brother-in-law Sirjal Baskey had assaulted his sister Tuky Marandi due to which she came to his house. Informant has claimed that his brother-in-law Sirjal Baskey has killed his sister and for that he had taken his sister in the night and thereafter assaulted her and killed her by pressing her neck.

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On the basis of fardbeyan of the Informant, Police has registered, Maheshpur P.S. case No. 47 of 2006 dated 06.04.2006 under Section 302 of the I.P.C against the accused Sirjal Baskey. After completion of the investigation, Police has submitted charge-sheet against the sole accused Sirjal Baskey vide Chargesheet No. 55 of 2006 dated 30.04.2006 under Section 302 of the I.P.C. Cognizance of the offence under Section 302 of the I.P.C. was taken against the accused vide order dated 10.05.2006 and the case was committed to the Court of Sessions vide order dated 24.05.2006. The charge has been framed against the sole accused under Section 302 of the I.P.C vide order dated 09.06.2006, to which the accused has pleaded himself to be innocent. Thus, the accused was put under trial.

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In order to prove the prosecution case, the prosecution has examined altogether 7 prosecution witnesses and also exhibited documents up to Ext. 2. Humayu Kabir, seizure witness, has proved his signature on the seizure list marked as Ext.1 and has been examined as P.W.1; Nazir Hussain, another seizure witness, has also proved his signature on the seizure list marked as Ext. 1/1 and has been examined as P.W.2; Dheba Marandi has been examined as P.W.3 who has been declared hostile by the prosecution; Dr. Lalit Kr. Bhagat, Medical Officer has been examined as P.W.4 and has proved the post mortem report of the deceased, which has been marked as Ext.2.; Bodge Marandi, a hearsay witness has been examined as P.W.5; Sayeed Hussain ,inquest witness has been examined as P.W.6; Shankar Kumar Bhagat, another inquest witness has been examined as P.W.7.

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Signature of the witnesses on the seizure list has been proved and marked as Ext.1 and 1/1. The postmortem report has been proved and marked as Ext.2.

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After closure of the prosecution evidence, accused Sirjal Baskey has been examined under Section 313 Cr.P.C. on 27.11.2007 where he has claimed himself to be innocent but no defence witness has been examined nor any documents have been exhibited on behalf of the defence.

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After hearing the learned counsel for the parties and on the basis of the materials available on record, learned Trial Court has passed the impugned judgment of conviction and order of sentence holding the appellant guilty under

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section 302 of the Indian Penal Code and awarded sentence of imprisonment for life.

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Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, appellant has preferred the present Jail appeal before this Court.

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Heard learned Amicus Curiae, Ms. Amrita Banerjee and Learned counsel for the State Mr. Arun Kumar Pandey, Additional Public Prosecutor. 10. Learned Amicus Curiae has submitted that the impugned judgment of conviction and order of sentence is bad in law as well as facts and cannot sustain in the eyes of law. Learned Amicus Curiae has stated that there is no eye witness to the occurrence. The Informant Tuila Marandi has not been examined in this case nor the 7 years old maternal nephew of the informant (son of the deceased) has been examined in this case. Learned Amicus Curiae has further stated that the Investigating Officer of the case has also not been examined and none of the prosecution witnesses are eye witness to the occurrence. Learned Amicus Curiae has further submitted that P.W.1-Humayu Kabir and P.W.2-Nazir Hussain are the seizure witnesses ,who have proved their signatures on the seizure list , which have been marked as Ext. 1 and 1/1. P.W.6- Sayeed Hussain and P.W.7- Shankar Kumar Bhagat are also inquest witnesses. Learned Amicus Curiae has further submitted that P.W.-3, Dheba Marandi has been declared hostile by the prosecution. P.W.-4, Dr. Lalit Kr. Bhagat, Medical Officer has proved the post mortem report of the deceased, which has been marked as Ext.2. As per post mortem report death has been caused due to asphyxia caused by obstruction of upper airways by both hands. Learned Amicus Curiae has further submitted that there is no legal evidence against the appellant to hold him guilty for the offence committed and punishable under Section 302 of the I.P.C. Learned Amicus Curiae has further submitted, that even the last seen theory has not been proved by the prosecution before the learned trial court so as to bring the materials under Section 106 of the Evidence Act, as this appellant is the husband of the deceased. Learned Amicus Curiae has further submitted that the dead body of the deceased was found lying in the morning and thereafter information was given to the Police which was made basis for institution of the First Information Report. Prosecution has not examined the child witness aged about 7 years nor the Investigating Officer has been examined in this case. In the aforesaid circumstances, because of non-examination of the informant as well as the Investigating Officer, serious prejudice has been caused to the appellant as there is no eye witness to the occurrence. In the aforesaid circumstances,

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learned Amicus Curiae has submitted that appellant deserves to be acquitted from the charge and conviction under Section 302 I.P.C as the prosecution has failed to prove the case beyond all reasonable doubt against accused / appellant Sirjal Baskey.

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Learned counsel for the respondent State Mr. Arun Kumar Pandey, Additional Public Prosecutor has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned Trial Court on the basis of materials available on record. Learned counsel for the State has further submitted that the victim went along with her husband and minor child in the night and thereafter the body of the victim was found lying in the paddy field. The accused is husband of the deceased. Informant, after hearing the news, informed the Police and Police recorded his fardbeyan on the basis of which, F.I.R was lodged. Learned counsel for the State has further submitted that since the victim had gone along with her husband, it is the duty of her husband to explain how his wife has died. Learned counsel for the State has drawn attention of this Court towards the evidence of P.W.3- Dheba Marandi, who has been declared hostile by the prosecution. Learned counsel for the State has submitted that P.W.3 during his cross examination has stated that he has not stated what he heard from the villagers rather he has stated what he has seen. In the night when he came out of his house to urinate, he saw Tuky Marandi along with Sirjal Baskey were going with a child. Both of them were shouting. Learned counsel for the State on the basis of such evidence has tried to establish the prosecution case of last seen theory. Under the aforesaid circumstances, learned counsel for the State has submitted that the impugned judgment of conviction and order of sentence does not warrant any interference by this Court.

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Heard learned Amicus Curiae Ms. Amrita Banerjee and learned Counsel for the State Mr. Arun Kumar Pandey, Additional Public Prosecutor and perused the materials available on record including the F.I.R, which is based upon fardbeyan; framing of charge; evidences of 7 prosecution witnesses and 2 prosecution exhibits; statement of the appellant under Section 313 of the Cr.P.C as well as impugned judgment of conviction and order of sentence. This Court has minutely scrutinized the evidences of the prosecution witnesses. None of the prosecution witnesses are eye witness to the occurrence. P.W.1Humayu Kabir and P.W.2- Nazir Hussain are the seizure witnesses who have proved their signatures on the seizure list, which have been marked as Ext.1 and 1/1. Dheba Marandi- P.W.3 has been declared hostile by the prosecution. This Court has considered the submission made by learned counsel for the

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State. This Court is conscious of the fact that evidence of the hostile witness has to be dealt with care and caution before holding the accused guilty. This Court has taken judicial notice of the fact that this witness has categorically stated that he has not stated before the police though attention has been drawn towards his cross examination made by the Public Prosecutor before the Trial Court but that will not be considered to be legally admissible evidence as the said statement has not been adduced by the witness in the dock voluntarily nor the Investigating Officer has been examined in this case to substantiate the same. In the aforesaid circumstances, statement made by the learned A.P.P. is not acceptable to this Court as legal evidence. This Court has taken judicial notice of the fact that entire prosecution evidence has not able to prove the prosecution case. Non- examination of the Informant and the child witness, who is maternal nephew of the informant and son of the deceased has put cloud over the prosecution case, coupled with the fact that Investigating Officer of the case has also not been examined.

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Under the aforesaid facts and circumstances, we are of the view that prosecution has miserably failed to prove the guilt against the accused beyond shadow of all reasonable doubt. There is no eye witness to the occurrence. Prosecution has not been able to prove the manner of occurrence nor the chain of circumstances established by the prosecution.

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Under the aforesaid facts and circumstances, we are of the considered view that the impugned judgment of conviction and order of sentence cannot sustain in the eyes of law as the prosecution has failed to prove the charge beyond shadow of all reasonable doubts against the appellant Sirjal Baskey. Accordingly, the impugned judgment of conviction and order of sentence dated 10.01.2008 passed in Sessions Case No. 101 of 2006 by the 1^st Additional Sessions Judge, Pakur is hereby set aside. Appellant Sirjal Baskey is in jail. He is directed to be released forthwith from custody, if not wanted in connection with any other case.

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In the result, the appeal is allowed. Let the Lower Court Records be sent to the Court below forthwith.

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(Aparesh Kumar Singh, J.)

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(Kailash Prasad Deo, J.)

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Jharkhand High Court, Ranchi Date 16^th January, 2019 A.Mohanty/

Sirjal Baskey v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Sirjal Baskey v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

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