Sunday, October 6, 2024

High Court takes note of "a slip of pen or a mistake" by Trial Court's judge in a murder case, sets aside error ridden judgement of conviction and sentencing order

In Santosh Yadav vs. The State of Bihar (2024), Patna High Court's Division Bench of Justices Ashutosh Kumar and Jitendra Kumar concluded: "we set aside the judgment of conviction and the order of sentence against the appellants and acquit them of the charges, giving them benefit of doubt. The appellants are in custody. They are directed to be released from jail forthwith, if not wanted or detained in any other case." 

In the case question, one Abhishek Kumar was said to have been murdered at the hands of Santosh Yadav and the Raju Kumar, the appellants and one Dharmendra Yadav on July 2, 2017.The Trial Court examined ten witnesses on behalf of the prosecution and four on behalf of the defence, convicted and sentenced the appellants subsequent to investigation for offences under Sections 302, 386 and 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959 and submission of the charge sheet against the appellants.

Section 27 of the Arms Act deals with the Punishment for using arms. Its Section 1 (1) states that whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Section 1(2) states that whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine. Section 1 (3) states that whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with imprisonment for life, or death and shall also be liable to fine.

Going by the FIR, there was only eye-witness to the occurrence. His statement at the Trial reflects that an attempt has been made to improve upon his initial version. Both he and the deceased were stopped by the appellants and the deceased was shot at by Dharmendra Yadav. He stated before the Trial Court that Dharmendra also threatened the only eye witness that if any attempt is made to save the life of the deceased, he too would be killed. Hearing the sound of firing, the parents and sisters of the only eye witness also arrived. Seeing them come to the P.O., the appellants ran away. With the help of one of the villagers who offered to give his motorcycle, his brother who was still struggling for life was taken to hospital where during the course of treatment he died.  This assertion of the parents and sisters of the only eye witness having come to the P.O. on hearing the sound of firing is an improvement from his initial version in the fardbeyan. His deposition before the Trial Court becomes suspect. It does not appear to be probable that a brother would be allowed to go unscathed even when he had been a witness to the cold-blooded murder of another brother. There was no supervening circumstance for the appellants to have spared the only eye witness, for him to report the matter to the police. If co-convict/Dharmendra had threatened teh only eye witness  and the deceased of dire consequences in case they did not pay up Rs. 50,000/- as ransom money or protection money, the matter ought to have been reported. There is nothing on record to indicate any reason for which the enmity could have been avenged by killing one of the brothers. When confronted with specific question, the eye witness admitted that except for his own family members, no independent person has been brought to the witness-stand to support the prosecution case. The bench also noted that the Police Officer, who scribed the fardbeyan viz., Sandeep Kumar Jha was neither examined nor is there any explanation on record for his non-examination. According to the eye witness the deceased was taken to hospital by a person of the locality, who acted as a samaritan. The Court observed that it was all the more necessary for him to be examined for unraveling the truth. For the reason that the deceased, despite receiving such injury in his neck was still struggling for life and was taken to hospital where treatment was afforded to him. This story does not appear to be correct or at least this version has not been proved at all. The post-mortem report as also the deposition of Dr. Rajiv Ranjan (P.W. 4), who conducted the post-mortem on the deceased concluded that there was one minor/simple injury on the forehead of the deceased just above the eye-brow. The cause of death obviously was held to be hemorrhage and shock because of the injuries. 

The Court reached its conclusion because "It is one of the most improperly contested cases, leaving many loopholes and crevices in the prosecution version." 

The Division Bench observed: "The three appellants have been convicted under Sections 302/24 of the IPC, but very curiously and wrongly have been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/- for the offence under Section 302/34 of the Indian Penal Code by the learned Additional District & Sessions Judge-V, Bhagalpur in Sessions Trial No. 973 of 2017/Trial No. 213 of 2022 corresponding to Nathnagar (Lalmatia) P.S. Case No. 306 of 2017 vide judgment of conviction and order of sentence dated 23.01.2023/27.01.2023. Precisely for this reason, while admitting these two appeals, notices were issued to the appellants for enhancement of the sentence."

The Trial Court judge forgot to read about the quantum of punishment under Section 302 of the IPC. Section 302 reads: "Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine." The award of 10 years of punishment is contrary to law. The High Court took a lenient view of the Trial judge's blunder and set it right without seeking any explanation from the judge in question although the trial court chose to ignore the law and the verdict of the Supreme Court. In The State of Madhya Pradesh vs Nandu @ Nandua, the bench of Justices M.R. Shah and Krishna Murari has endorsed the view that "once an accused is held to be guilty for the offence punishable under Section 302 IPC, the minimum sentence, which is imposable would be the imprisonment for life and, therefore, any punishment/sentence less than the imprisonment for life shall be contrary to Section 302 of the IPC." Therefore the Trial Court had "committed a very serious error in reducing the sentence". 

In its judgment, the Division Bench observed: "It is really surprising as to how after convicting the appellants, they have been sentenced to undergo rigorous imprisonment for 10 years only. It could be a slip of pen or a mistake. On this score alone, we could have set aside the judgment and order of conviction and sentence and remitted the matter to the Trial Court to write out a fresh sentence. However, that procedure would have taken long and therefore after issuance of notice to the appellants for enhancement of the sentence in case they are found guilty under Section 302 of the Indian Penal Code, directions were issued to the Registry for placing the appeals for final hearing after preparation of the paper book" for final hearing. The judgement was authored by Justice Ashutosh Kumar.   

Initially, the appellant's case was represented by Advocate Manoj Kumar Jha before a a Single Judge Bench. The bench had also detected the blunder of the Trial Court judge. Rajendra Narain, Senior Advocate and Advocate Jha represented the appellant before the Division Bench. 

 


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