Jharkhand High Court
Kishore Kerketta vs State Of Jharkhand on 26 May, 2016
Author: Virender Singh
Bench: Virender Singh, Anant Bijay Singh
1
CRIMINAL APPEAL (DB) No. 1529 of 2005
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[Against the judgment of conviction and order of sentence dated
21.09.2005and 24.09.2005 respectively, passed by learned Additional Judicial Commissioner, Fast Track Court No. VII, Ranchi, in Sessions Trial Case No. 34 of 1991].
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Kishore Karketta ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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For the Appellant : Mr. Pramod Kumar, Advocate.
For the State : Mr. Sanjay Kumar Pandey-2, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON'BLE MR. JUSTICE ANANT BIJAY SINGH ...
Per Virender Singh, C.J.
Sole appellant Kishore Karketta has preferred the instant criminal appeal being aggrieved and dissatisfied of the judgment dated 21.09.2005 passed by learned Additional Judicial Commissioner, Fast Track Court No. VII, Ranchi in Sessions Trial Case No. 34 of 1991, whereby and whereunder, the learned Additional Judicial Commissioner, Fast Track Court No. VII, Ranchi has held the appellant guilty under Section 302/34 IPC and ordered to undergo rigorous imprisonment for life.
2. The case of prosecution, as unfolded in the fardbeyan of Karma Oraon (P.W.-7) husband of the deceased recorded by A.S.I. K.B. Rai of Itki P.S. on 21.07.1990 at 22:00 hours at Itki P.S. is that at 8:00 pm he had proceeded to his second house and while he was reaching there he heard the voice of his wife Bigni crying "Save Save". He in torch light noticed that Arun Kerketta was assaulting his wife by means of knife and another person was standing there and when the informant lit the torch, they fled away towards eastern side. The informant went to the place of occurrence and saw that blood is oozing out from the body of his wife and on hulla being raised by them, neighbour Fhaguni Urain (P.W.-3) came 2 there and meanwhile his wife died. Daughter of the informant Sundri (P.W.-2) and sister of the informant Ghasini also came at the place of occurrence. The informant disclosed the aforesaid fact to aforesaid persons. Motive for the occurrence is that the badi maa of Arun Kerketta was murdered in 1988 in which the son of the informant Jatru Uraon was made an accused and since then there was a litigation between them. On the basis of aforesaid allegations, Bero P.S. Case No. 75 of 1990 dated 22.07.1990 was registered under Section 302 IPC read with Section 34 IPC.
3. It appears from the record that police after investigation submitted final form against Arun Kerketta and Kishore Karketta (appellant). The case was then committed to the court of Sessions. It further appears that charges under Section 302 IPC read with Section 34 IPC were framed against Arun Kerketta and Kishore Karketta on 19.03.1991 by the then Judicial Commissioner, Ranchi and on the same day charge under Section 302 I.P.C. simplicitor was framed against Arun Kerketta and the trial commenced. From here the trial court lost the track of the case which we will be discussing hereinafter at the relevant stage.
4. Prosecution in support of his case has examined altogether eight witnesses namely, P.W.-1 Sukra Uraon, who is a seizure witness; P.W.-2 Sundri Urain - daughter of the deceased; P.W.-3 Faguni Urain, who is next door neighbour; P.W.-4 Panchu Uraon; P.W.-5 Arjun Uraon, hearsay witness; P.W.-6 Birsa Uraon; P.W.-7 Karma Uraon, husband of the deceased and informant; P.W.-8 - Dr. Kanhaiya Prasad, Medical Officer who conducted post mortem on the body of the deceased. Exhibit-1 is seizure list; Exhibit-2 is the post- mortem examination report.
5. Defence has also examined one witness DW-1 R.R. Minz.
6. P.W.-7 Karma Uraon in his fardbeyan and also in evidence on record has stated that occurrence is of a year ago 3 and when at 7:30 pm in night, he was in his house, Arun Kerketta along with another person came to his house and Arun Kerketta assaulted Bigni Urain, his wife, by means of knife consequent thereupon she died and on hulla P.W.-7 lit his torch and noticed the miscreants fleeing away. He proved fardbeyan as Exhibit-X. In cross-examination, he has stated that at the time of occurrence his daughter namely Sundri (P.W.-2) was present in the house and the occurrence took place outside his house where his wife was washing the utensils and on hulla he came out of the house with torch and noticed that Arun Kerketta assaulted his wife by means of knife.
7. P.W.-2 Sundri Urain is the daughter of deceased and in her examination-in-chief stated that Arun and Kishore both had come and demanded wine and on refusal, these two persons assaulted her mother by means of knife and on hulla her father and other persons came at the place of occurrence.
8. There are two material witnesses as per the prosecution case.
9. P.W.-8, Dr. Kanhaiya Prasad conducted the post mortem on the body of deceased Bigni Urain and found the following injuries:
A. Stab Wound
(i) 2½ cm and ¾ cm and 3½ cm over front of abdomen in the epigastric area, the track is oblique and remains confined to abdominal wall.
(ii) 2¾ cm x ¾ cm x Chest Cavity, left chest front laterally placed cutting the 3rd rib and through 3rd i.e. space the instrument enters into left lungs, presence of blood, blood clot in chest cavity.
(iii) 2½ x 1 cm x Chest Cavity. Left lateral chest wall, cutting the 8th rib and through 7th i.e. space, the instrument enters into left lungs, presence of blood x blood clot in chest cavity.4
(iv) 2½ x 1 x 3 ¾ cm and 2¼ x ¾ x 3½ cm over left lateral chest, the track is oblique and remains confined to lateral chest wall.
(v) 2 cm x ½ cm x 2¾ cm and ¾ cm x 3½ cm left arm lateral side.
(vi) 3 x 1 x 5½ cm and 2¾ cm and ¾ x 4½ cm and 3 x 1 x 4 cm over right thigh back upper part.
B. Incised Wound
(i) 2 x ½ x ½ cm, 2¼ x ½ x ½ cm situated over left forearm back lower part.
(ii) 4 x 1 cm x soft tissue, 2 x ½ x ¾ cm situated over right forearm medial side.
In his opinion all the above injuries were ante-mortem in nature and stab wounds were caused by sharp cutting and pointed weapon may be by knife. Incised wound were also caused by sharp cutting weapon may be a knife. Time elapsed since death opined was within 06-24 hours from the time of post-mortem examination i.e. 22.07.1990.
10. P.W.-3 Faguni Urain, is a hearsay witness whereas P.W.-1 Sukra Uraon is the witness of seizure memo of blood stained soil collected by I.O., therefore we do not feel the necessity of going into details of their evidence on record. Admittedly I.O. has not been examined in this case.
11. What we find from the material evidence available on record is that it is Arun Kerketta only (not nabbed) who gave knife blow on the person of the deceased and that no specific part has been attributed to the present appellant at all. He is not even named in the F.I.R. P.W.-7 Karma Oraon has categorically stated that it is Arun Kerketta who had assaulted Bigni Orain and about the other person accompanying him, he was not sure about his identity.
12. We have minutely scanned the evidence of Sundri Urain (P.W.-2) who also projects herself to be an eye witness to the 5 occurrence but her evidence before the trial court runs just contrary to the statement of her father (P.W.-7). She develops altogether a new story that Arun Kerketta and the present appellant had come to their house and demanded liquor and on refusal these two persons assaulted her mother by means of knife. What appears to the Court is that Sundri Urain (P.W.-2) made an attempt to improve the basic substratum of the prosecution case. Had she seen the appellant along with Arun Kerketta as stated by her on oath during the trial, it is not possible that she would not disclose his name to her father who had lodged the report with the police and in that eventuality name of the appellant would have occurred in the Fardbeyan. From this material contradiction crept in the statement of this so called star witness goes to show that either she had not seen any occurrence as stated by her in the Court or she deliberately made an improvement to knit a net wider to implicate the present appellant may be for the reason that the main accused who is the perpetrator of the crime, could not be nabbed by the police. These vital infirmities creeping in the statements of two star witnesses namely Karma Uraon (P.W.-7) and his daughter (P.W.-2) demolish the case of the prosecution so far as involvement of the present appellant is concerned.
13. As stated above, the evidence of other witnesses being formal in character who happened to be at the place of occurrence after the occurrence, cannot improve the case of prosecution.
14. After rescanning the entire prosecution evience qua the present appellant, the Court can comfortably come to an irresistible conclusion that prosecution has not been able to prove its case beyond any shadow of reasonable doubt against the present appellant so as to hold him guilty of the charge of Section 302 I.P.C. read with Section 34 I.P.C., he deserves to be acquitted. Ordered accordingly.
615. The net result is that the instant appeal on hand stands allowed.
16. Appellant namely, Kishore Karketta, who is languishing in jail for the last more than 12 years, shall now be released forthwith, if not required in any other case.
17. Let intimation be sent through the Registry to the Jail Superintendent concerned where he is presently lodged. The trial court shall also be informed, accordingly.
18. Let us now advert to the second aspect of the case with regard to the manner in which the trial of the present case has been conducted. It really depicts a sad picture which is established from the following facts :-
(i) The occurrence was taken place on 21.07.1990.
(ii) Charges were framed on 19.03.1991, but trial court judgment delivered in the year 2005. The trial continued for more than 14 years.
19. On perusal of order sheets of lower court records and the exhibits, it appears that despite the steps for imparting training to judicial officers on Case Management, Court Management and effectively handling the sessions trial have been taken in the Judicial Academy of the State, the record reveals that the things have gone otherwise, which will be established from the way this case was handled by learned trial court. Some of the orders passed by the trial court are mentioned here-in-below:-
28.04.1992 It appears on perusal of order dated 28.04.1992 that the Hon'ble Court in Cr. Misc. No. 818/92(R) on bail petition of Arun Kerketta directed to conclude the trial within two months, but as the trial was not concluded within two months from 27.02.1992, the Judicial Commissioner on 28.04.1992 released Arun Kerketta on bail after furnishing Rs. 5,000/- with two sureties. From 28.04.1992 to 29.01.2002 for a period of more than nine years the case was adjourned for recording the evidence of doctor and I.O. and all these appellants, Kishore Karketta and Arun 7 Kerketta were present and regularly made pairvi through their learned counsel.
19.02.2002 Record also reveals that on 19.02.2002 Arun Kerketta and Kishore Karketta appellants were absent. Their bail bound was cancelled and the case was fixed on 16.03.2002. The representation was made under Section 317 Cr.P.C. which was rejected as earlier their bail bond was cancelled.
09/04/02 Case was adjourned.
03/05/02 Meanwhile case was transferred to the court of
learned AJC-V, Ranchi.
01/07/02 Representation under Section 317 Cr.P.C. was
filed on behalf of Arun Kerketta and Kishore Karketta which was rejected and bail bonds also cancelled. Subsequently, on 02.07.2002 non bailable warrant was issued.
17.07.2002 It appears from perusal of record that on 17.07.2002 Kishore Karketta (appellant) was arrested on the basis of non-bailable warrant, he was remanded in this case and on 06.09.2002 he was released on bail after furnishing bail bond of Rs. 10,000/- on condition that if on any date the trial is held up for his appearance, his bail bond shall be cancelled.
21.09.2002 The case was transferred to the court of Sri H.P. Chakraborty, Special Judge, VIth, Ranchi.
17.12.2002 Further, case was adjourned for 09.01.2003. On that day, again representation on behalf of Arun Kerketta and Kishore Karketta under Section 317 Cr.P.C. was allowed, as prosecution failed to produce any witness.
09/01/03 Further on 09.01.2003 on the request of both the accused namely Arun Kerketta and Kishore Karketta representation was accepted and on the oral request of the learned APP, prosecution case was closed and 24.01.2003 was the date fixed for recording the statement of both the accused 8 persons under Section 313 Cr.P.C.
24.01.2003 Representation was made under Section 317 Cr.P.C. on behalf of Kishore Karketta and Hazari was filed on behalf of Arun Kerketta.
28.01.2002 On that day Hazari was filed on behalf of Arun Kerketta, no pairvi on behalf of Kishore Karketta, his advocate was informed and the case was fixed on 03.02.2003.
03/02/03 On that day representation was filed under Section 317 Cr.P.C. on behalf of Arun Kerketta which was allowed. Further, due to non-appearance of Kishore Karketta, his bail bond was cancelled and non bailable warrant was issued.
12/03/03 In meanwhile on 12.03.2003, the case was transferred to the court of Sri. S.S. Rao, learned Additional Judicial Commissioner, FTC, Ranchi.
25.03.2003 It further appears that on the said date non-
bailable warrant was issued against Kishore Karketta and further case was listed on 05.04.2003.
05/04/03 On that day Hazari was filed on behalf of Arun Kerketta and notices were issued to the bailor of Kishore Karketta.
16.04.2003 Further on 16.04.2003 Kishore Karketta surrendered and he was remanded in this case.
19.04.2003 Kishore Karketta was produced from judicial custody and Arun Kerketta was also present and statement under Section 313 Cr.P.C. was recorded and the case was fixed for defence evidence and argument on 25.04.2003.
25.04.2003 Kishore Karketta was produced from judicial custody. Hazari was filed on behalf of Arun Kerketta and case was fixed on 29.04.2003.
01/05/03 On that day Kishore Karketta was not produced from judicial custody. It further appears that on 02.05.2003 again statement of Kishore Karketta was recorded under Section 313 Cr.P.C. and the 9 case was adjourned for 08.05.2003.
08/05/03 On that day prayer was made for adjournment on the ground of personal difficulty of senior counsel, accordingly the case was adjourned for 14.05.2003.
14.05.2003 On that day Hazari was filed on behalf of Arun Kerketta, but Kishore Karketta was not produced from judicial custody. Case was adjourned for 19.05.2003.
19.05.2003 Hazari was filed on behalf of Arun Kerketta, but Kishore Karketta was not produced from judicial custody. It further appears that on 22.05.2003 Hazari was filed on behalf of Arun Kerketta and Kishore Karketta was produced from judicial custody. Case was adjourned for 22.04.2003.
22.05.2003 It further appears that on 22.05.2003 Hazari was filed on behalf of Arun Kerketta and Kishore Karketta was produced from judicial custody and R.R. Minj was examined as D.W.-1. D.W.-1 in his examination-in-chief has stated that he is acquainted with the accused persons and accused persons are his neighbhours. On 20.07.1990 Arun was arrested. At that time Arun was with him. In cross-examination, he has stated that no criminal case pending against him.
Further, it appears that case was adjourned on 27.05.2003, 28.05.2003, 30.05.2003, 05.06.2003, 10.06.2003.
The case was adjourned for argument thereafter on 11.06.2003, 18.06.2003, 24.06.2003, 02.07.2003, 30.07.2003, 01.08.2003, 25.08.2003, 10.07.2003, 11.07.2003, 18.07.2003.
11/07/03 Argument was heard on 11.07.2003 and the case was fixed for judgment on 18.07.2003.
18.07.2003 From perusal of order dated 18.07.2003, it appears that case was fixed for judgment, but only Kishore Karketta was produced from judicial 10 custody and a petition under Section 317 Cr.P.C. was filed on behalf of Arun Kerketta which was rejected and non-bailable warrant was issued. Thereafter, he was arrested and remanded in this case on 01.08.2003 and his bail was rejected on 11.08.2003. Further remanded to judicial custody.
25.08.2003 Further on 25.08.2003 petition under Section 311 Cr.P.C. was filed on behalf of Arun Kerketta for recalling of Sundri Oraon (P.W.-2) and Karma Oraon (P.W.-7) for their further cross-examination.
26.08.2003 The learned Additional Judicial Commissioner-7th, F.T.C. Ranchi vide order dated 26.08.2003 rejected the prayer of Arun Kerketta.
11/09/03 Further, it appears that on 11.09.2003 another petition under Section 231 (2) Cr.P.C. was filed on behalf of Arun Kerketta considering the fact that two eye witnesses were not cross-examined earlier by defence counsel on the point of place of occurrence because I.O. had not come and further the inquest report, seizure list and blood stained soil were not proved and the case is of year 1991. Further, the trial court after hearing, rejected the petition of Arun Kerketta under Section 231 (2) Cr.P.C.
It appears on perusal of order dated 01.10.2003, petition was filed stating therein that they have preferred criminal revision against order dated 11.09.2003 before the Hon'ble High Court. Thereafter, the case was adjourned for 20.10.2003, 04.11.2003, 10.11.2003, 13.11.2003, 24.11.2003, 02.12.2003. Inspite of adjournment given to the accused no stay order was granted.
16.12.2003 Further, it appears that on 16.12.2003 another application was filed on behalf of Arun Kerketta which was dismissed and the case was adjourned for 05.01.2004, 14.01.2004, 28.01.2004, 17.02.2004, 24.02.2004, 26.02.2004 and on 26.02.2004, application for bail filed on behalf of 11 Kishore Karketta, which was rejected and the case was adjourned for 05.03.2004, 22.03.2004, 29.03.2004, 08.04.2004 and 16.04.2004.
16.04.2004 It appears that Arun Karketta was granted bail by the Hon'ble Court in B.A. No. 7270/2003 directed to be released on furnishing bail bond of Rs. 5000/- with two sureties. The case was adjourned for 24.04.2004, 07.05.2004.
07/05/04 Further, it appears on perusal of order dated 07.05.2004 recorded in the handwriting of the then Presiding Officer that Arun Kerketta had taken time for preferring revision against the order dated 26.04.2003 before the Hon'ble Court, but no stay order has been produced by Arun Kerketta and the case was adjourned for 17.05.2004.
17.05.2004 On 17.05.2004 an application on affidavit filed on behalf of Arun Kerketta stating therein that criminal revision is pending in the Hon'ble High Court. The case was adjourned for 05.06.2004.
05/06/04 Further, order dated 05.06.2004 states that Kishore Karketta (appellant) has been granted bail vide B.A. No. 2785 of 2004 on furnishing Rs. 10,000/- with two sureties. The case was adjourned for 22.06.2004, 28.06.2004.
28.06.2004 Accused Arun Kerketta was directed to conclude the argument or to bring stay order and the case was adjourned for 09.07.2004, 15.07.2004, 22.07.2004, 27.07.2004, 02.08.2004, 10.08.2004, 13.08.2004, 18.08.2004.
18.08.2004 Hazari was filed on behalf of Arun Kerketta and representation under Section 317 Cr.P.C. on behalf of Kishore Karketta and the case was fixed for argument and further mention that arguments were heard. The case is of 1991, so it was fixed on 24.08.2004 for judgment.
24.08.2004 From perusal of order dated 24.08.2004, it 12 appears that both the accused filed representation under Section 317 Cr.P.C. Since the date was fixed for judgment, the representation under Section 317 Cr.P.C. was rejected and bail bond was cancelled. Process under Section 82/83 Cr.P.C.
was issued. The case was adjourned for 01.09.2004, 15.09.2004, 28.09.2004, 13.10.2004, 29.11.2004, 15.12.2004, 18.01.2005, 18.02. 2005, as service report of the process issued under Section 82/83 was not received, they were declared permanent absconder under Section 299 Cr.P.C. and office was directed to issue permanent warrant of arrest against the accused and records were directed to deposit in the record room.
Further, order sheet dated 11.07.2005 reveals that Kishore Karketta was arrested on the basis of non- bailable warrant and was remanded in this case till 29.07.2005.
Further, the case was adjourned for 12.08.2005, 30.08.2005, 03.09.2005 and 12.09.2005.
12/09/05 Further, from perusal of order dated 12.09.2005, it appears that original record was called for from record room and supplementary record merged with original record and further record of Arun Kerketta was split up with Kishore Karketta and office was directed to open a supplementary record of Arun Kerketta. Further argument were made on behalf of Kishore Karketta and on 12.09.2005, it appears that prosecution have filed original post- mortem report as xerox copy of the post-mortem were marked as exhibit with evidence the P.W.-8 and it was substituted in place of xerox copy and on 21.09.2005 judgment was pronounced. Kishore Karketta was found guilty under Sections 302/34 I.P.C. and the case was fixed on 24.09.2005 on the point of sentence and on 24.09.2005 he was sentenced R.I. for life for offence punishable under Section 302/34 I.P.C. and conviction warrant was directed to be issued.
1320. After perusing the entire order sheets, which depict the lackadaisical manner in which entire sessions trial had proceeded, we hereby direct the Registry to send the entire original record to the trial court and call for a report either from concerned court or his successor court or if successor not being named, the Principal Judicial Commissioner, Ranchi with regard to accused Arun Kerketta within three weeks from receipt of a copy of the judgment vis-à-vis the steps taken by the court for ensuring his presence as it appears to the Court that after pronouncement of the judgment on 21.09.2005 whereby Kishore Karketta stands convicted, the trial court perhaps has not taken any step for securing the presence of Arun Kerketta or proceeding with his case in accordance with law. The instant matter, in our view, might take a serious turn for taking some action against concerned judicial officer, if required, after the report is perused. Registry is further directed to preserve a xerox copy of the complete set of order sheets back to back with the records of the trial court which shall be tagged with the records of Criminal Appeal (DB) No. 1529 of 2005 for appropriate orders on the next date of hearing.
21. Let the record of the case be placed before the Chief Justice on Administrative side for considering the following facts:-
(i) For sending one set of record including the order sheets to the Director, Judicial Academy Jharkhand for framing a training curriculum for Sessions Judges especially newly appointed Sessions Judges of Jharkhand on Court Management, Case Management and Nature & Scope of Application under Section 311 Cr.P.C. etc.
(ii) Further desirability of issuing categorical directions to the trial courts regarding time to be given to the parties who have preferred Criminal Writs / Revision against the impugned judgment of the trial court for placing on record any order/direction of the High Court so that the matter can be proceeded further as in the instant case it reveals that on 14 the pretext of Criminal Revision being pending before the High Court, the trial was held up for long five years.
(iii) Further, desirability of issuing administrative directions / circulars directing the presiding officers to record short orders (zimni orders) in their own handwriting in all the cases which have gone five years old so that the proceedings of the trial remains under the direct control of the trial judge and that the case is not misdirected as happened in this case which lost its direction and it continued because of the wrong recording of the order sheets.
22. The conduct of the trial court was not fair to the informant Karma Oraon whose wife is the victim in this case and who is waiting for the real culprit to be punished. This Court takes a vow that henceforth this type of conduct of the trial court is not repeated in other cases.
23. Although we have decided the fate of the instant appeal, yet we keep it on Board for response of the learned trial court in terms of our directions contained in Para 20 of the judgment.
24. List again on 24th of June, 2016.
25. Let a copy of this judgment be circulated to all the Judicial Officers of the State and to Director, Judicial Academy Jharkhand.
26. Registrar General to take note of it.
(Virender Singh, C.J.) (Anant Bijay Singh, J.) Jharkhand High Court, Ranchi Dated 26/05/2016 NAFR Sunil/Birendra/