Lakhan Bakshi Vs. State of Jharkhand - Court Judgment

SooperKanoon Citationsooperkanoon.com/111215
CourtJharkhand High Court
Decided OnNov-02-2017
AppellantLakhan Bakshi
RespondentState of Jharkhand
Excerpt:
-1- in the high court of jharkhand at ranchi criminal appeal (db) no. 228 of 2008 (against the judgment of conviction and order of sentence dated 20th of december, 2007, passed by learned 1st additional sessions judge, jamtara, in sessions case no. 67 of 2004 / 15 of 2006). ------- lakhan baski ….. … appellant versus state of jharkhand .…. … respondent -------- for the appellant : mr. yogesh modi, amicus curie for the respondent-state : mr. krishna shankar, a.p.p. -------- coram : hon’ble mr. justice h. c. mishra : hon’ble mr. justice ananda sen ------- c.a.v. on 09.10.2017 pronounced on 02.11.2017 h.c. mishra, j.:- heard learned amicus curie appointed by the court for the appellant and learned counsel for the state.2. this jail appeal arises out of the judgment of conviction and order of sentence dated 20th of december, 2007, passed by the learned 1st additional sessions judge, jamtara, in sessions case no. 67 of 2004 / 15 of 2006, whereby the sole appellant has been found guilty and convicted for the offences under sections 302 and 201 of the indian penal code. upon hearing on the point of sentence, the appellant has been sentenced to undergo r.i. for life for the offence under section 302 of the indian penal code and r.i. for 7 years for the offence under section 201 of the indian penal code. the appellant was also sentenced to pay a fine of rs. 5,000/-, which if realized, was payable to the mother of the deceased.3. the prosecution case was instituted on the basis of the statement of one likhoni tudu, the mother of the deceased bolo baski, recorded on 29.1.2004 at jamtara police station, wherein, she has stated that her son bolo baski, aged about 22 years, was working as servant at the house of the accused lakhan baski, who was an employee in one jalan factory, bhuli, in the district of dhanbad. on 17.1.2004, her son had visited her in the night at about 8.00 p.m., and after spending some time with her, he went back to his master’s place. as he did not return back even after 2-3 days, the informant went to the house of the accused, where she found the house locked. she thought that her son might have gone somewhere along with the family of lakhan baski, and she sent one person to the in-laws' place of lakhan baski, but she was informed that they had not visited there. then she sent one lagan baski to the factory, where the accused lakhan baski was working. lagan baski brought lakhan baski to the village on 27.1.2004. it is alleged that before the villagers -2- lakhan baski disclosed that on 17.1.2004 when he returned back to his house from his factory in the night at about 9.30 p.m., he saw bolo baski in compromising position with his wife. upon seeing lakhan baski, his wife fled away from the place and bolo baski tried to conceal himself beneath the cot, upon which, he assaulted bolo baski by tangi, causing his death and threw the dead body in the river. alleging that the accused lakhan baski had committed the murder of the deceased and had caused the dead body to disappear, the information was given at the police station on 29.1.2004, on the basis of which, jamtara p.s. case no. 17 of 2004, corresponding to g.r. no.28 of 2004, was instituted for the offence under section 364 of the indian penal code against the accused and investigation was taken up. in course of investigation, the dead body of the deceased was found and section 302 of the indian penal code was added, and after completing the investigation, the chargesheet was submitted against the accused lakhan baski.4. upon commitment of the case to the court of session, charge was framed against the accused for the offences under sections 302 and 201 of the indian penal code and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. in course of trial, prosecution has examined 10 witnesses in this case, including the medical officer, who had conducted the post-mortem examination on the dead body of the deceased, and the investigating officer of the case. one witness p.w.-10 hemant murmu, however, turned hostile and did not support the prosecution case.5. p.w.-1 lakhoni tudu is the informant of the case and mother of the deceased. she has fully supported the prosecution case stating that her son was working as servant in the house of the accused lakhan baski and on saturday night, he had gone to the house of lakhan baski, but he did not return back. he was searched at the house of lakhan baski, where lakhan baski and his wife were not present. lakhan baski was brought to the village by lagan baski, who disclosed before the villagers that he had killed bolo baski and had thrown the dead body in rajwa river. thereafter, the police was informed and her statement was recorded by the police, whereupon she had given her thumb impression. this witness has identified the accused in the court. in her cross-examination, she has stated that she had not seen the accused committing the murder and she could not disclose the names of the villagers, before whom, the accused had confessed his guilt. she has denied the suggestion to have given the false evidence.6. p.w.-3 lagan baski is the witness, who had brought the accused lakhan baski to the village from his factory. he has also supported the prosecution case, but he has stated that he was informed by the choukidar that lakhan baski killed bolo baski and this confession was made before the choukidar by the accused. he has stated that he had brought lakhan baski from factory to the village, where in presence of choukidar and villagers, lakhan baski had disclosed that bolo baski had established -3- illicit relationship with his wife, due to which, he had killed him and had buried the dead body in rajia river. thereafter, he brought the mother of the deceased to police station, where her statement was recorded and this witness had also put his signature on her statement, which he has identified, which was marked exhibit-1/1. this witness has also stated that thereafter the police went to the village and arrested the accused, and the accused went with the police and took out the dead body from the river and the dead body was sent for post-mortem examination. he has identified the accused in the court. in his cross-examination, he has stated that he had heard that the dead body was taken out by the accused lakhan baski in the presence of the police. he has also stated that he had not seen the accused committing the murder of the deceased.7. p.w.-2 raisen baski has also supported the prosecution case as above, and has stated that the accused had disclosed before the villagers that he had killed the deceased. thereafter they brought the mother of the deceased and the choukidar to the police station, where the statement of the mother of the deceased was recorded, whereupon he had also put his signature, which he identified and the same was marked exhibit-1. he has stated that the accused was arrested in the village and he had heard that the dead body of the deceased was recovered from rajia river. in his cross- examination, this witness has stated that he had not seen who had killed the deceased and he has denied the suggestion of giving false evidence.8. p.w.-5 sajeet kumar mandal is the witness to the inquest report, p.w.-6 khagan mandal and p.w.-7 prabhash mandal are the witnesses to the seizure list of recovery of an axe, and these witnesses have identified their signatures on the inquest report and the seizure list, which were marked exhibits 3, 4 and 4/1 respectively. p.w.-6 and p.w.-7 have stated that the seized axe was not present in the court.9. p.w.-4 dr. bipad bhanjan mahto is the medical officer, who had conducted the post-mortem examination on the dead body of the deceased on 30th of april, 2004 and had found the following on the dead body:- body swollen, bleached face, sand all over the body, mosquitoes flying all over the body, foul smell coming out of the body. skin separated and pealed off out over trunk and on both extremity, mouth open, tongue protruded, right eye partially opened, left eye opened, upper extremity relaxed, lower extremity stiff, greenish black discoloration over chest abdomen and pelvic area, veins blackish over lower extremity, penis and scrotum swollen, faecal matter around anus. he found following injuries on the dead body:- 1. sharp cutting injury over right fronto-parietal region measuring 4” x 2” x cavity deep.2. fracture of right frontal bone 3” long depressed. -4- 3. fracture of right parietal bone 2” long depressed.4. sharp cutting injury over right molar region of face measuring 2 ½” x 1” x muscle deep.5. sharp cutting injury over right cheek 2 ½” x ½” x muscle deep.6. sharp cutting injury over right upper third of neck 3” x 1 ½ ” x muscle deep.7. sharp cutting injury over posterior aspect of upper third of neck 2” x ½” x muscle deep. all the injuries are ante-mortem in nature. on dissection: skull - fracture of right parietal bone and frontal bone. meninges torn, brain matter putrified and converted into yellowish grey colour thick gel. he has stated that the cause of death was trauma in brain matter associated with blood loss and the time elapsed since death was 7-14 days. he has identified the post-mortem report to be in his pen and signature, which was marked exhibit-2.10. p.w.-8 arbind kumar sinha, is the investigating officer of the case. he has stated that on 29.1.2004, he was posted at jamtara police station as officer- incharge and he had recorded the statement of likhoni tudu, whereupon she had put her thumb impression. he has identified the statement to be in his pen and signature, which was marked exhibit-5. he has also proved the formal f.i.r., which was marked exhibit-6. this witness has stated that thereafter he recorded the statements of two witnesses at the police station and went to the place of occurrence, where he arrested the accused lakhan baski and recorded his confessional statement. on the basis of his confessional statement, he recovered the dead body of the deceased from rajia river, buried in the sand. he recovered the axe, by which, the offence was committed, on the basis of the confessional statement of the accused, from beneath a bridge and prepared the seizure list in presence of the witnesses, which he has proved as exhibit-7. he prepared the inquest report of the dead body and sent the dead body for post-mortem examination. he has proved the inquest report, which was marked exhibit-8. he has given the details of the place of occurrence, which is the house of the accused, and he has stated that he found the room freshly smeared with soil. he got the statement of the accused, recorded under section 164 of the cr.p.c., in the court, wherein also the accused admitted his guilt. he received the post-mortem report and upon completing the investigation, he submitted the chargesheet. in his cross-examination, this witness has stated that the f.i.r. was instituted on 29.1.2004 and he had arrested the accused on 30.1.2004 and his confessional statement was also recorded on the same day, on the basis of which, the dead body was recovered and was identified by mother and the -5- villagers. he had also recovered the axe on 30.1.2004 itself. he has admitted in his cross-examination that during investigation, he had recorded the statement of pati muni, the wife of the accused. he has denied the suggestion of making faulty investigation.11. p.w.-9 sanjay kumar, is the judicial magistrate, who had recorded the statement of the accused under section 164 of the cr.p.c., on 5.2.2004, which he has proved and the same was marked exhibit-9.12. the statement of the accused was recorded under section 313 of the cr.p.c., wherein he has denied the evidence against him. from the statement, recorded under section 313 of the cr.p.c., it is apparent that no question was put to the accused with regard to the recovery of the dead body and the weapon of offence, on the basis of his confessional statement. no evidence was adduced by the defence.13. on the basis of the evidence on record, the accused appellant was convicted and sentenced by the trial court below as aforesaid.14. learned amicus curie, arguing for the appellant, has submitted that the impugned judgment of conviction and order of sentence are absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, the prosecution has failed to bring home the charges against the appellant beyond all reasonable doubts. it is submitted that the entire prosecution story is full of doubts, inasmuch as, according to the f.i.r., the informant came to know about the occurrence on 27.1.2004, on which date, the accused had allegedly confessed his guilt before the villagers. however, no f.i.r. was lodged by the informant on 27.1.2004 and 28.1.2004, rather the f.i.r. was lodged on 29.1.2004. it is further submitted that though the f.i.r. was lodged on 29.1.2004, but it was received in the court on 31.1.2004 and there is no explanation of these delays by the prosecution. learned counsel further submitted that admittedly there is no eyewitness to the occurrence and according to the prosecution case, the offence was allegedly committed by the accused due to the fact that he had seen the deceased in compromising position with his wife. as such, it cannot be ruled out that the deceased was committing rape with the wife of the appellant, in which case, the right of private defence of the body extended up to causing death of the deceased. it was for the prosecution to establish the case whether or not it was a case of rape, by examining the wife of the accused, but this witness has been withheld by the prosecution for the reasons best known to it, even though, it is admitted by p.w.-8 arbind kumar sinha, the i.o., that he had recorded the statement of the wife of the accused. learned counsel further submitted that even though it is the case of the prosecution that the recovery of the dead body and the weapon of offence were made on the basis of the confessional statement of the accused, but this vital circumstance was not put to the accused in his statement, recorded under section 313 of the cr.p.c., even though, this circumstance has been used by the trial court for convicting and sentencing the accused. learned counsel, accordingly, -6- submitted that the prosecution has failed to bring home the charges against the accused appellant beyond all reasonable doubts and it is a fit case, in which, the accused appellant was entitled at least to the benefits of doubt.15. learned counsel for the state, on the other hand, has opposed the prayer and submitted that though there is no eyewitness to the occurrence, but the prosecution has been able to bring home the charges against the appellant beyond all reasonable doubts. it is submitted that the confessional statement of the accused was recorded, in which, he has admitted his guilt, on the basis of which, the dead body as also the weapon of offence have been recovered and these facts have been proved by the prosecution beyond all reasonable doubts. it is further submitted that the statement of the accused was also recorded under section 164 of the cr.p.c., by the judicial magistrate, which has also been proved in the case, wherein also the accused had admitted his guilt. learned counsel, accordingly, submitted that there is no illegality in the impugned judgment of conviction and order of sentence.16. having heard learned counsels for both the sides and upon going through the record, we find that this is a case of no eyewitness and the only circumstance against the appellant is the recovery of the dead body and the weapon of offence on the basis of his confessional statement. though admittedly the offence was known to the informant on 27.1.2004, but the f.i.r. was lodged on 29.1.2004. considering the fact that it was the case of murder of the son of the informant, there appears to be no reason for not lodging the f.i.r. at the earliest, when she was knowing the fact that this accused had murdered her son. even though the f.i.r. was lodged on 29.1.2004, there is no explanation as to why the same was sent to the court of the c.j.m. on 31.1.2004 and this delay is also not explained by the prosecution. both these unexplained delays go to the very root of the prosecution case and make the prosecution case doubtful. according to the prosecution case, the occurrence had taken place due to the fact that the accused had seen his wife in compromising position with the deceased. as such, it cannot be ruled out that at the first sight, the accused must have got the impression that the deceased was committing rape upon his wife and in that event, in order to save his wife, the right of private defence extended up to causing the death of the deceased, under section 100 of the indian penal code. the sudden rage and provocation, to which the accused appellant must have been put due to the action of the deceased, also cannot be lost sight of. even thought, it is admitted by p.w.-8 arbind kumar sinha, the investigating officer of the case, that he had recorded the statement of the wife of the accused, but this witness has been withheld by the prosecution for the reasons best known to it, and the benefit of this also must be given to the defence, as she was a very vital witness, not only for the prosecution, rather she was an important witness for the defence too, and her non-examination has vitally prejudiced the defence. -7- 17. for the foregoing reasons, we are of the considered view that in spite of the fact that there are recoveries on the basis of the alleged confessional statement of the accused, but due to un-explained delays and non-examination of the vital witness, whose statement was admittedly recorded by the police during investigation, the prosecution has not be able to bring home the charges against the accused beyond all reasonable doubts and it is a fit case, in which, the accused was entitled at least to the benefits of doubt. we also find a procedural lapse in the case, inasmuch as though the circumstance of recovery of the dead body and the weapon of offence on the basis of the confessional statement of the accused has been used by the trial court in finding the appellant guilty, but these circumstances were not put before the accused under section 313 of the cr.p.c. as even otherwise, we are of the view that the accused is entitled to the benefits of doubt, there is no use sending the case back to the trial court for putting this circumstance to the accused under section 313 of the cr.p.c.18. in view of the foregoing discussions, the impugned judgment of conviction and order of sentence dated 20th of december, 2007, passed by the learned 1st additional sessions judge, jamtara, in sessions case no. 67 of 2004 / 15 of 2006, are hereby, set aside. the appellant lakhan baski is given the benefit of doubt and he is acquitted of the charges. the accused is in custody, let him be released and set at liberty forthwith, if his detention is not required in any other case.19. before parting with this judgment, we must record that we have been given able assistance by the learned amicus curie sri yogesh modi, and we direct the secretary, high court legal services committee, to make the payment of prescribed remuneration to him. let a copy of this judgment be sent to the secretary, high court legal services committee, for the needful.20. this appeal, is accordingly, allowed. let the lower court record be sent back to the court concerned forthwith, along with a copy this judgment. (h.c. mishra, j.) ananda sen, j.:- (ananda sen, j.) jharkhand high court, ranchi dated the 2nd of november, 2017 nafr/ amitesh/-
Judgment:

-1- IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (DB) No. 228 of 2008 (Against the Judgment of conviction and Order of sentence dated 20th of December, 2007, passed by learned 1st Additional Sessions Judge, Jamtara, in Sessions Case No. 67 of 2004 / 15 of 2006). ------- Lakhan Baski ….. … Appellant Versus State of Jharkhand .…. … Respondent -------- For the Appellant : Mr. Yogesh Modi, Amicus Curie For the Respondent-State : Mr. Krishna Shankar, A.P.P. -------- CORAM : HON’BLE MR. JUSTICE H. C. MISHRA : HON’BLE MR. JUSTICE ANANDA SEN ------- C.A.V. on 09.10.2017 Pronounced on 02.11.2017 H.C. Mishra, J.:- Heard learned amicus curie appointed by the Court for the appellant and learned counsel for the State.

2. This jail appeal arises out of the Judgment of conviction and Order of sentence dated 20th of December, 2007, passed by the learned 1st Additional Sessions Judge, Jamtara, in Sessions Case No. 67 of 2004 / 15 of 2006, whereby the sole appellant has been found guilty and convicted for the offences under Sections 302 and 201 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life for the offence under Section 302 of the Indian Penal Code and R.I. for 7 years for the offence under Section 201 of the Indian Penal Code. The appellant was also sentenced to pay a fine of Rs. 5,000/-, which if realized, was payable to the mother of the deceased.

3. The prosecution case was instituted on the basis of the statement of one Likhoni Tudu, the mother of the deceased Bolo Baski, recorded on 29.1.2004 at Jamtara Police Station, wherein, she has stated that her son Bolo Baski, aged about 22 years, was working as servant at the house of the accused Lakhan Baski, who was an employee in one Jalan Factory, Bhuli, in the district of Dhanbad. On 17.1.2004, her son had visited her in the night at about 8.00 P.M., and after spending some time with her, he went back to his master’s place. As he did not return back even after 2-3 days, the informant went to the house of the accused, where she found the house locked. She thought that her son might have gone somewhere along with the family of Lakhan Baski, and she sent one person to the in-laws' place of Lakhan Baski, but she was informed that they had not visited there. Then she sent one Lagan Baski to the factory, where the accused Lakhan Baski was working. Lagan Baski brought Lakhan Baski to the village on 27.1.2004. It is alleged that before the villagers -2- Lakhan Baski disclosed that on 17.1.2004 when he returned back to his house from his factory in the night at about 9.30 P.M., he saw Bolo Baski in compromising position with his wife. Upon seeing Lakhan Baski, his wife fled away from the place and Bolo Baski tried to conceal himself beneath the cot, upon which, he assaulted Bolo Baski by tangi, causing his death and threw the dead body in the river. Alleging that the accused Lakhan Baski had committed the murder of the deceased and had caused the dead body to disappear, the information was given at the Police Station on 29.1.2004, on the basis of which, Jamtara P.S. Case No. 17 of 2004, corresponding to G.R. No.28 of 2004, was instituted for the offence under Section 364 of the Indian Penal Code against the accused and investigation was taken up. In course of investigation, the dead body of the deceased was found and Section 302 of the Indian Penal Code was added, and after completing the investigation, the chargesheet was submitted against the accused Lakhan Baski.

4. Upon commitment of the case to the Court of Session, charge was framed against the accused for the offences under Sections 302 and 201 of the Indian Penal Code and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course of trial, prosecution has examined 10 witnesses in this case, including the Medical Officer, who had conducted the post-mortem examination on the dead body of the deceased, and the Investigating Officer of the case. One witness P.W.-10 Hemant Murmu, however, turned hostile and did not support the prosecution case.

5. P.W.-1 Lakhoni Tudu is the informant of the case and mother of the deceased. She has fully supported the prosecution case stating that her son was working as servant in the house of the accused Lakhan Baski and on Saturday night, he had gone to the house of Lakhan Baski, but he did not return back. He was searched at the house of Lakhan Baski, where Lakhan Baski and his wife were not present. Lakhan Baski was brought to the village by Lagan Baski, who disclosed before the villagers that he had killed Bolo Baski and had thrown the dead body in Rajwa river. Thereafter, the police was informed and her statement was recorded by the police, whereupon she had given her thumb impression. This witness has identified the accused in the Court. In her cross-examination, she has stated that she had not seen the accused committing the murder and she could not disclose the names of the villagers, before whom, the accused had confessed his guilt. She has denied the suggestion to have given the false evidence.

6. P.W.-3 Lagan Baski is the witness, who had brought the accused Lakhan Baski to the village from his factory. He has also supported the prosecution case, but he has stated that he was informed by the Choukidar that Lakhan Baski killed Bolo Baski and this confession was made before the Choukidar by the accused. He has stated that he had brought Lakhan Baski from factory to the village, where in presence of Choukidar and villagers, Lakhan Baski had disclosed that Bolo Baski had established -3- illicit relationship with his wife, due to which, he had killed him and had buried the dead body in Rajia river. Thereafter, he brought the mother of the deceased to Police Station, where her statement was recorded and this witness had also put his signature on her statement, which he has identified, which was marked Exhibit-1/1. This witness has also stated that thereafter the police went to the village and arrested the accused, and the accused went with the police and took out the dead body from the river and the dead body was sent for post-mortem examination. He has identified the accused in the Court. In his cross-examination, he has stated that he had heard that the dead body was taken out by the accused Lakhan Baski in the presence of the police. He has also stated that he had not seen the accused committing the murder of the deceased.

7. P.W.-2 Raisen Baski has also supported the prosecution case as above, and has stated that the accused had disclosed before the villagers that he had killed the deceased. Thereafter they brought the mother of the deceased and the Choukidar to the Police Station, where the statement of the mother of the deceased was recorded, whereupon he had also put his signature, which he identified and the same was marked Exhibit-1. He has stated that the accused was arrested in the village and he had heard that the dead body of the deceased was recovered from Rajia river. In his cross- examination, this witness has stated that he had not seen who had killed the deceased and he has denied the suggestion of giving false evidence.

8. P.W.-5 Sajeet Kumar Mandal is the witness to the inquest report, P.W.-6 Khagan Mandal and P.W.-7 Prabhash Mandal are the witnesses to the seizure list of recovery of an axe, and these witnesses have identified their signatures on the inquest report and the seizure list, which were marked Exhibits 3, 4 and 4/1 respectively. P.W.-6 and P.W.-7 have stated that the seized axe was not present in the Court.

9. P.W.-4 Dr. Bipad Bhanjan Mahto is the Medical Officer, who had conducted the post-mortem examination on the dead body of the deceased on 30th of April, 2004 and had found the following on the dead body:- Body swollen, bleached face, sand all over the body, mosquitoes flying all over the body, foul smell coming out of the body. Skin separated and pealed off out over trunk and on both extremity, mouth open, tongue protruded, right eye partially opened, left eye opened, upper extremity relaxed, lower extremity stiff, greenish black discoloration over chest abdomen and pelvic area, veins blackish over lower extremity, penis and scrotum swollen, faecal matter around anus. He found following injuries on the dead body:- 1. Sharp cutting injury over right fronto-parietal region measuring 4” x 2” x cavity deep.

2. Fracture of right frontal bone 3” long depressed. -4- 3. Fracture of right parietal bone 2” long depressed.

4. Sharp cutting injury over right molar region of face measuring 2 ½” x 1” x muscle deep.

5. Sharp cutting injury over right cheek 2 ½” x ½” x muscle deep.

6. Sharp cutting injury over right upper third of neck 3” x 1 ½ ” x muscle deep.

7. Sharp cutting injury over posterior aspect of upper third of neck 2” x ½” x muscle deep. All the injuries are ante-mortem in nature. On Dissection: Skull - Fracture of right parietal bone and frontal bone. Meninges torn, brain matter putrified and converted into yellowish grey colour thick gel. He has stated that the cause of death was trauma in brain matter associated with blood loss and the time elapsed since death was 7-14 days. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-2.

10. P.W.-8 Arbind Kumar Sinha, is the Investigating Officer of the case. He has stated that on 29.1.2004, he was posted at Jamtara Police Station as Officer- Incharge and he had recorded the statement of Likhoni Tudu, whereupon she had put her thumb impression. He has identified the statement to be in his pen and signature, which was marked Exhibit-5. He has also proved the formal F.I.R., which was marked Exhibit-6. This witness has stated that thereafter he recorded the statements of two witnesses at the Police Station and went to the place of occurrence, where he arrested the accused Lakhan Baski and recorded his confessional statement. On the basis of his confessional statement, he recovered the dead body of the deceased from Rajia river, buried in the sand. He recovered the axe, by which, the offence was committed, on the basis of the confessional statement of the accused, from beneath a bridge and prepared the seizure list in presence of the witnesses, which he has proved as Exhibit-7. He prepared the inquest report of the dead body and sent the dead body for post-mortem examination. He has proved the inquest report, which was marked Exhibit-8. He has given the details of the place of occurrence, which is the house of the accused, and he has stated that he found the room freshly smeared with soil. He got the statement of the accused, recorded under Section 164 of the Cr.P.C., in the Court, wherein also the accused admitted his guilt. He received the post-mortem report and upon completing the investigation, he submitted the chargesheet. In his cross-examination, this witness has stated that the F.I.R. was instituted on 29.1.2004 and he had arrested the accused on 30.1.2004 and his confessional statement was also recorded on the same day, on the basis of which, the dead body was recovered and was identified by mother and the -5- villagers. He had also recovered the axe on 30.1.2004 itself. He has admitted in his cross-examination that during investigation, he had recorded the statement of Pati Muni, the wife of the accused. He has denied the suggestion of making faulty investigation.

11. P.W.-9 Sanjay Kumar, is the Judicial Magistrate, who had recorded the statement of the accused under Section 164 of the Cr.P.C., on 5.2.2004, which he has proved and the same was marked Exhibit-9.

12. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. From the statement, recorded under Section 313 of the Cr.P.C., it is apparent that no question was put to the accused with regard to the recovery of the dead body and the weapon of offence, on the basis of his confessional statement. No evidence was adduced by the defence.

13. On the basis of the evidence on record, the accused appellant was convicted and sentenced by the Trial Court below as aforesaid.

14. Learned amicus curie, arguing for the appellant, has submitted that the impugned Judgment of conviction and Order of sentence are absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, the prosecution has failed to bring home the charges against the appellant beyond all reasonable doubts. It is submitted that the entire prosecution story is full of doubts, inasmuch as, according to the F.I.R., the informant came to know about the occurrence on 27.1.2004, on which date, the accused had allegedly confessed his guilt before the villagers. However, no F.I.R. was lodged by the informant on 27.1.2004 and 28.1.2004, rather the F.I.R. was lodged on 29.1.2004. It is further submitted that though the F.I.R. was lodged on 29.1.2004, but it was received in the Court on 31.1.2004 and there is no explanation of these delays by the prosecution. Learned counsel further submitted that admittedly there is no eyewitness to the occurrence and according to the prosecution case, the offence was allegedly committed by the accused due to the fact that he had seen the deceased in compromising position with his wife. As such, it cannot be ruled out that the deceased was committing rape with the wife of the appellant, in which case, the right of private defence of the body extended up to causing death of the deceased. It was for the prosecution to establish the case whether or not it was a case of rape, by examining the wife of the accused, but this witness has been withheld by the prosecution for the reasons best known to it, even though, it is admitted by P.W.-8 Arbind Kumar Sinha, the I.O., that he had recorded the statement of the wife of the accused. Learned counsel further submitted that even though it is the case of the prosecution that the recovery of the dead body and the weapon of offence were made on the basis of the confessional statement of the accused, but this vital circumstance was not put to the accused in his statement, recorded under Section 313 of the Cr.P.C., even though, this circumstance has been used by the Trial Court for convicting and sentencing the accused. Learned counsel, accordingly, -6- submitted that the prosecution has failed to bring home the charges against the accused appellant beyond all reasonable doubts and it is a fit case, in which, the accused appellant was entitled at least to the benefits of doubt.

15. Learned counsel for the State, on the other hand, has opposed the prayer and submitted that though there is no eyewitness to the occurrence, but the prosecution has been able to bring home the charges against the appellant beyond all reasonable doubts. It is submitted that the confessional statement of the accused was recorded, in which, he has admitted his guilt, on the basis of which, the dead body as also the weapon of offence have been recovered and these facts have been proved by the prosecution beyond all reasonable doubts. It is further submitted that the statement of the accused was also recorded under Section 164 of the Cr.P.C., by the Judicial Magistrate, which has also been proved in the case, wherein also the accused had admitted his guilt. Learned counsel, accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence.

16. Having heard learned counsels for both the sides and upon going through the record, we find that this is a case of no eyewitness and the only circumstance against the appellant is the recovery of the dead body and the weapon of offence on the basis of his confessional statement. Though admittedly the offence was known to the informant on 27.1.2004, but the F.I.R. was lodged on 29.1.2004. Considering the fact that it was the case of murder of the son of the informant, there appears to be no reason for not lodging the F.I.R. at the earliest, when she was knowing the fact that this accused had murdered her son. Even though the F.I.R. was lodged on 29.1.2004, there is no explanation as to why the same was sent to the Court of the C.J.M. on 31.1.2004 and this delay is also not explained by the prosecution. Both these unexplained delays go to the very root of the prosecution case and make the prosecution case doubtful. According to the prosecution case, the occurrence had taken place due to the fact that the accused had seen his wife in compromising position with the deceased. As such, it cannot be ruled out that at the first sight, the accused must have got the impression that the deceased was committing rape upon his wife and in that event, in order to save his wife, the right of private defence extended up to causing the death of the deceased, under Section 100 of the Indian Penal Code. The sudden rage and provocation, to which the accused appellant must have been put due to the action of the deceased, also cannot be lost sight of. Even thought, it is admitted by P.W.-8 Arbind Kumar Sinha, the Investigating Officer of the case, that he had recorded the statement of the wife of the accused, but this witness has been withheld by the prosecution for the reasons best known to it, and the benefit of this also must be given to the defence, as she was a very vital witness, not only for the prosecution, rather she was an important witness for the defence too, and her non-examination has vitally prejudiced the defence. -7- 17. For the foregoing reasons, we are of the considered view that in spite of the fact that there are recoveries on the basis of the alleged confessional statement of the accused, but due to un-explained delays and non-examination of the vital witness, whose statement was admittedly recorded by the police during investigation, the prosecution has not be able to bring home the charges against the accused beyond all reasonable doubts and it is a fit case, in which, the accused was entitled at least to the benefits of doubt. We also find a procedural lapse in the case, inasmuch as though the circumstance of recovery of the dead body and the weapon of offence on the basis of the confessional statement of the accused has been used by the Trial Court in finding the appellant guilty, but these circumstances were not put before the accused under Section 313 of the Cr.P.C. As even otherwise, we are of the view that the accused is entitled to the benefits of doubt, there is no use sending the case back to the Trial Court for putting this circumstance to the accused under Section 313 of the Cr.P.C.

18. In view of the foregoing discussions, the impugned Judgment of conviction and Order of sentence dated 20th of December, 2007, passed by the learned 1st Additional Sessions Judge, Jamtara, in Sessions Case No. 67 of 2004 / 15 of 2006, are hereby, set aside. The appellant Lakhan Baski is given the benefit of doubt and he is acquitted of the charges. The accused is in custody, let him be released and set at liberty forthwith, if his detention is not required in any other case.

19. Before parting with this Judgment, we must record that we have been given able assistance by the learned amicus curie Sri Yogesh Modi, and we direct the Secretary, High Court Legal Services Committee, to make the payment of prescribed remuneration to him. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, for the needful.

20. This appeal, is accordingly, allowed. Let the Lower Court Record be sent back to the Court concerned forthwith, along with a copy this Judgment. (H.C. Mishra, J.) Ananda Sen, J.:- (Ananda Sen, J.) Jharkhand High Court, Ranchi Dated the 2nd of November, 2017 NAFR/ Amitesh/-