Jharkhand High Court
Dr. Arvind Kumar @ Arbind Kumar Son Of ... vs The State Of Jharkhand on 11 September, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Criminal Appeal (D.B.) No. 74 of 2015
With
Criminal Appeal (D.B.) No. 62 of 2015
[Arising out of judgment of conviction dated 04.12.2014 and order of
sentence dated 08.12.2014 passed by learned Sessions Judge, West
Singhbhum at Chaibasa in Sessions Trial No. 223 of 2012 / Sessions Trial
No.244 of 2013]
Criminal Appeal (D.B.) No. 74 of 2015
Dr. Arvind Kumar @ Arbind Kumar son of Shri Shyam Bihari Singh,
resident of Village Dhanauta, P.O. & P.S. Maharajganj, District Siwan (Bihar)
and Qtr. No.111, Defence Colony, Kankarbag, P.O. & P.S. Kankarbag,
District Patna (Bihar) presently residing at Qtr. No.D/7, SAIL Township,
Kiriburu, P.O. & P.S. Kiriburu, District Singhbhum West
.... .... .... Appellant
--Versus--
1. The State of Jharkhand
2. Amrit Soreng son of Late Silas Soreng, resident of Quarter No.1033,
Sector IVB, Bokaro Steel City, P.O., P.S. & District Bokaro
.... .... .... Respondents
With
Criminal Appeal (D.B.) No. 62 of 2015
Nishi Rani Kerketta wife of Late Sharad Soreng, resident of Sector IVB, Qtr.
No.1033, P.S. & P.O. Sector IV, B.S. City, District Bokaro, Jharkhand
presently residing at Qtr. No.409/Sector-XIIC, P.S. & P.O. Sector XII,
District Bokaro, Jharkhand .... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellant : Mr. Jitendra S. Singh, Advocate
Mr. Raja Ravi Shekhar, Advocate
(In Criminal Appeal (D.B.) No. 74 of 2015)
Mr. B.M. Tripathi, Sr. Advocate
Ms. Nutan Kumari, Advocate
Mr. Naveen Kumar Jaiswal, Advocate
(In Criminal Appeal (D.B.) No. 62 of 2015)
For the State : Mr. Pankaj Kumar, P.P.
(In both cases)
For the Informant : Mr. P.P.N. Roy, Sr. Advocate
Ms. Pragati Prasad, Advocate
(In both cases)
-----
PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
-----
1
JUDGMENT
RESERVED ON: 27.08.2024 PRONOUNCED ON: 11.09.2024
Per Gautam Kumar Choudhary, J. Both these criminal appeals arise out of the
judgment of conviction and sentence passed in Sessions Trial 223 of 2012 /
Sessions Trial No.244 of 2013 whereby and whereunder the appellant-Dr.
Arvind Kumar has been convicted and sentenced under Sections 302 and 201
of the IPC. He is also convicted under Section 120B of the IPC. Appellant-
Nishi Rani Kerketta is held guilty under Section 302 read with Section 120B
of the IPC for conspiring the accused Dr. Arvind Kumar in the murder of her
husband Dr. Sharad Soren.
PROSECUTION CASE
2. Deceased- Dr. Sharad Soren was the husband of appellant- Nishi Rani
Kerketta and a friend of Dr. Arvind Kumar. It is said that the deceased had
strained relationship with his wife and she was intimate to appellant- Dr.
Sharad Soren. Both the appellants hatched conspiracy under which deceased
was called to Chaibasa where appellant- Dr. Arvind Kumar was posted as a
Medical Officer and there in the house of appellant, he was murdered in cold
blood.
3. FIR in this case was registered on the statement of appellant- Nishi
Rani Kerketta on 22.05.2012 stating therein that her husband Dr. Sharad
Soren (deceased) was serving as a Doctor at SAIL Hospital, Kiriburu,
Chaibasa. He had come to Bokaro and after brief stay for two days, he
returned on 21.05.2012 to Kiriburu with the informant. On the same day, at
4.30 in the afternoon he went to the Hospital and while going he locked the
house from outside, as she was not feeling well. When he did not return by 8
O' Clock, she tried to contact her husband and Dr. Arvind, but their mobiles
were found switched off. She got concerned and went out to enquire about
her husband in the Hospital, there the Hospital staffs informed that he had
gone to the Quarter of Dr. Arvind. At around 10.45, she could contact Dr.
Arvind telephonically, who informed that he (deceased) was on night duty
and will return in the morning.
4. On 22.05.2012 at around 12 O' Clock, she got the key of house of Dr.
Arvind from his maid servant and went to his house and found the dead body
lying there in a pool of blood. The dead body had telltale marks over his face
of injury caused by stabbing weapon. Informant apprehended that her
husband had been killed by Dr. Arvind Kumar and in order to cause screen
the evidence, had locked the house from outside and fled away from
Kiriburu.
5. On the basis of the fardbeyan of Nishi Rani Kerketta (appellant),
Jagannathpur Kiriburu P.S. Case No.4/12 was registered under Sections
302/201 of the IPC. Police on investigation, found the complicity of the
informant also in the crime and charge sheet was submitted under Sections
302, 201 of the IPC against Dr. Arvind Kumar and on commitment, it was
registered as S.T. Case No.223 of 2012. Later on, supplementary charge sheet
was submitted against appellant- Nishi Rani Kerketta under Sections 302,
201, 120B of the IPC, which was registered as S.T. Case No.244 of 2013.
6. Both the accused persons were put on trial under Sections 302, 201,
120B of the IPC.
7. Altogether 17 witnesses were examined on behalf of the prosecution
and following documents and materials have been adduced into evidence and
marked as Exhibits: -
Ext.-1 to 1/6 Seven Photographs of deceased at place of occurrence
Ext.-2 Signature of witness Rajender Sao (P.W.-5) on Seizure
list
Ext.-2/1 Signature of witness Umesh Prasad Mahto (P.W.-9) on
seizure list
Ext.-3 Signature of Amrit Soreng (P.W.-10) on Fardbeyan
Ext.-4 Signature of witness Suman Uday Kerketta (P.W.- 11) on
Inquest Report
Ext.-5 Postmortem Report of deceased Dr. Sharad Soreng
Ext.-6 Entire Fardbeyan of Nishi Rani Kerketta (Arrayed as an
accused)
Ext.-6/1 Endorsement on the Fardbeyan to register the case,
which is written and signed by Roshan Guria (PW-
13)
Ext.-7 Formal F.I.R.
Ext.-8 Inquest report
Ext.-9 Seizure list
Ext.-10 Statement of accused Dr.Arbind Kumar (with
objection)
Ext.-11 Original SDE No.314 dated 10.06.2012 in connection
with unclaimed motorcycle No. JH-05J-3936 found
near New Bus Stand Hazaribagh and kept in
Hazaribagh (Sadar) Police Station.
Ext.-12 Signature of the then D.T.O. Sri Dayanand Mahali
on page of Registration Register in respect of
vehicle motorcycle No. JH-05J-3936 in the name of
Arbind Kumar, Son of Sri S.B.Singh, M.G.M.
Medical College, New Boys Hostel, Room No.78,
Dimna Mango, Jamshedpur
Ext-13 to 13/5 CDRs of seven SIM Cards containing
Material Ext.-I Single Bed Sheet with blood stain
Material Ext.-II One plastic cold drink bottle with blood stain
Material Ext.-III Intex Co. Dual SIM Mobile phone Modal
No.IN4470N
Material Ext.-IV Blood Collected from place of occurrence
8. After prosecution evidence, the evidence of the accused persons were
recorded under Section 313 of the Cr.P.C. Defence is of innocence and
specific plea of alibi is taken by the appellant- Dr. Arvind Kumar. Appellant-
Nishi Rani Kerketta has taken the plea of innocence. Defence has also
examined two witnesses.
Argument on behalf of appellant- Dr. Arvind Kumar
9. It is argued by the learned counsel that on 16th May, 2012, he received
information from one R.C. Singh (contractor) that his mother was seriously
ill in Patna and so he took leave from 16th May to 21st May and went to
Patna. He returned to Tata Nagar on 22.05.2012 at about 7 a.m. and from
there he went to Barbil Birsa. When he came to know about the incidence to
have taken place at Kiriburu, out of fear he did not return to Kiriburu
immediately. This is a consistent plea taken in his statement under Section
313 of the Cr.P.C. The factum of leave has been admitted by P.W. 7, who has
deposed that Dr. Arvind was on leave from 16.05.2012 to 21.05.2012. Out of
the 17 witnesses examined, it is urged that there is no direct or circumstantial
evidence to connect the appellant to the crime.
10. It is argued that certificate under Section 65B of the Evidence Act, has
not been filed to prove the call detail report and therefore, it cannot be looked
into.
Argument on behalf of Nishi Rani Kerketta
11. It is argued that she has not been convicted for the offence for
committing the offence herself, but has been convicted for entering into
criminal conspiracy under Section 302/120B of the IPC with principal
accused. There is no evidence direct or circumstantial to establish that she
was in contact with the principal accused. In order to prove criminal
conspiracy, it is necessary for the prosecution to establish that there was some
meeting of mind to commit an offence. There should be evidence direct or
circumstantial regarding the agreement express or implied towards the act
committed in pursuance of the said agreement.
ARGUMENT BY STATE
12. Learned counsel on behalf State assisted by learned senior counsel, Mr.
P.P.N. Roy have defended the judgment of conviction and sentence against
both the appellants. It is argued that criminal conspiracy is hatched in secrecy
and executed in a manner so that involvement of persons is not disclosed.
The place occurrence was house of the appellant- Dr. Arvind where the dead
body was found regarding which no explanation has been offered by the
appellant- Dr. Arvind Kumar. No evidence has been led by the appellant to
establish that his mother was critically ill, which forced him to suddenly
proceed on leave, without even taking a formal leave. A false plea of alibi has
been taken which would be evident from the call detail report adduced into
evidence and marked as Exhibit 13-13/5.
13. It is argued by the learned counsel that falsity of plea of alibi is
exposed from the call detail reports which shows the tower location of Dr.
Arvind Kumar on the date of incidence at Kiriburu, when he had telephonic
conversation with the deceased on 21.05.2012 at 17:49:44 hours- 37 seconds
and at 17:50:59 hours- 14 seconds. With regard to the certificate under
Section 65B of the Evidence Act, it is contended that it has been proved by
P.W. 15, who was serving as Technical Assistant in S.P. Office, Confidential
Section. He has deposed that the call detail report is obtained from the service
provider of the concerned SIM Company, and received in the computer in the
S.P. office. The call detail reports were proved by this witness before the
learned trial court in Exhibit 13 series.
FINDINGS
14. Dr. Sharad Soren died a homicidal death, has been objectively
established by Exhibit 5 which is the post mortem examination report of the
deceased. The Doctor, who conducted the autopsy examination, has been
examined as P.W. 12. He found the following ante mortem injuries: -
I. External- Multiple punctured wounds over skull, face, below right eye.
One punctured wound over front of abdomen 3" above umbilicus.
II. Internal- All skull injuries were extended upto 3" puncturing the brain
substance, abdomen injuries puncturing small intestine.
Doctor opined that injuries were caused by sharp penetrating weapon,
and death was caused by hemorrhage and shock due to above mentioned
injuries.
15. The weight of evidence establishes that the dead body was found in the
house of appellant- Dr. Arvind Kumar.
P.W. 6- Dr. Archna Beck has deposed in para 4 that Nishi Rani had
enquired from her about the address of Dr. Arvind Kumar and had requested
to accompany her to his Quarter. Gate was closed and after taking the house
maid Basanti Sarkar, the door lock was open, where the dead body of Dr.
Sharad Soren was found. This has been corroborated by P.W. 7- Stella Soren.
P.W. 8 is a witness to the inquest report.
P.W. 13, who was the Office-in-Charge of the case, on receiving
information regarding the incidence went to SAIL Quarter No.D/7 where the
dead body was found. P.W. 13 has stated in detail regarding recovery of dead
body from Quarter No.D/7 and also blood stained bed sheet. Blood stain
marks were also present on the wall and floor.
16. Motorcycle of the deceased was seized from the very same Quarter in
its garage which was also locked from outside. Investigating Officer (P.W.
13) has deposed in para 13 that in the garage adjacent to the Quarter,
motorcycle of the deceased was recovered which was taken out after
breaking open the lock on the gate of the garage. This motorcycle was not
seized rather was entrusted to the father of the deceased as stated by P.W. 13
in para 19.
P.W.14 (I.O.) has deposed in para 11 that the appellant has disclosed
about the abandoning of his motorcycle no.JH 05J 3936.
P.W. 16 has proved the Hazaribag Sadar P.S. Station Diary Entry
No.314 dated 10.06.2012 regarding an abandoned motorcycle bearing
registration no. JH 05J 3966 which has been adduced into evidence and
marked as Exhibit 11. P.W. 17- District Transport Officer has deposed that
motorcycle bearing registration no. JH 05J 3966 was registered in the name
Sri Arvind Kumar son of S.B. Singh and has proved the registration as
Exhibit 12.
17. P.W. 10 is the father of the deceased. He has deposed that his son Dr.
Sharad Soren was married to Nishi Rani Kerketta on 22.05.2009. In para 9,
he has deposed that crack in the marital relationship started from the time of
X-mas in 2011. Reason being that Nishi Rani used to talk with Dr. Arvind
which was not to the liking of the deceased. Whenever he objected to it,
appellant- Nishi Rani used to go to the verge of assaulting the deceased. In
December, 2011, he was assaulted by Nishi Rani by rod which was informed
by deceased to him. Since January, 2012 normalcy could not be restored in
marital relationship and they started thinking about dissolution of marriage.
On 15.05.2012, his son informed him that, Nishi Rani proposed to come to
Kiriburu to celebrate the marriage anniversary.
18. On 18.05.2012, Dr. Sharad went to Bokaro and on 21 st May, 2012,
brought Nishi Rani to Kiriburu. At 2.30 on the same day, he informed his
father telephonically that they had arrived at Kiriburu, and he will be joining
his duty in between 4 - 6 O' Clock in the evening. In para 18, he has deposed
that on 21.05.2012 at 5 - 5.15 in the evening, deceased informed him that he
had asked Dr. Arvind not to talk to his wife to which he had retorted that he
was in love with Nishi Rani and asked him to divorce her, least he will face
dire consequence. He also said that at 6 O' Clock, Dr. Arvind Kumar had
asked him to come to his residence to have discussion on the subject. In para
37 of the cross-examination, he has deposed that he had not personally seen
any incidence of altercation between his son and Nishi Rani Kerketta. In para
41, he has deposed that he has never talked to Nishi Rani regarding his love
affair with Dr. Arvind. In para 74-75, he says that he had not seen the
motorcycle in the garage of Quarter, rather he has seen it in police station. In
para 79, he has expressed his ignorance about Dr. Arvind being on leave from
16.05.2012 to 21.05.2012. What is significant to note about the testimony of
this witness is that it is free from any exaggeration, and has fairly admitted of
not being a witness to the altercation that took place between the deceased
and Nishi Rani Kerketta. Consistency is one test for the veracity of a witness.
Inconsistency appearing in the testimony of witness can be one of the factor
to look for close scrutiny of his account. Cross examination is a tool to
impeach the credit of the witness. Section 145 of the Evidence Act provides
when a witness is cross examined, he may be confronted with his pervious
statement in writing so as to elicit contradictions in his account. Cross
examination shows that this witness has not been confronted with his earlier
statement given under Section 161 of the Cr.P.C. to bring out any discrepancy
in his deposition. Under the circumstance, deposition of this witness inspires
confidence and reliance can be placed upon.
19. From the prosecution evidence, following incriminating circumstances
clearly emerge against appellant- Dr. Arvind Kumar: -
I. Dead body of Dr. Sharad Soren found in pool of blood with multiple
incised wound in Quarter No.D/7 of the appellant- Dr. Arvind Kumar.
II. Motorcycle of the deceased was also found from the garage of the
Quarter No.D/7.
III. On the said day and time, deceased had gone to meet Dr. Arvind as
deposed to by his father (P.W. 10) in para 18 where the Dr. Arvind had
called to meet him and talk about the marital dispute.
IV. After the incidence appellant absconded from his quarter in Kiriburu.
V. Deceased was having strained relationship with his wife as consistently
deposed by P.W. 7 in para 4, 5 and 6 and P.W. 10. The cause of marital
discord was Dr. Arvind Kumar, who was in constant touch with his
wife, which was to his disliking.
20. Proof of a fact-in-issue under Section 3 of the Evidence Act, is cast in
pragmatic term based on prudent men test. When dead body of a person is
found with ante mortem injuries in the house of a person with whom the
deceased was on inimical term, logical inference that will arise from it, is that
the owner of the house was complicit in the offence. It is only the accused in
such case who can explain the homicidal death that took place in his house.
None else can throw light over the events that did take place in his house.
Once the foundational facts are established, onus shifts on the defence to
explain the facts within his special knowledge under Section 106 of the
Evidence Act. Burden of proof on the prosecution is not to prove the
impossible.
21. In the present case, no explanation whatsoever has been offered by the
defence with regard to these incriminating circumstance. No alternative
hypothesis has been put forward to explain the possibility of a third person to
have committed the offence. There is no evidence on record to suggest that
deceased was on inimical term with any one else. Prosecution has led
evidence that the Quarter was locked from outside, which rules out access to
crime scene by anyone else. One of the key was available with house maid
Basanti Sarkar with whom the informant had gone to open the Quarter. It is
no body's case that Basanti Sarkar had anything to do with the crime. Not
even a suggestion has been given to any of the prosecution witness or the
plea has been taken by the appellant- Dr. Arvind Kumar that Basanti Sarkar
had committed the offence. This fortifies the prosecution case against the
appellant.
22. As discussed above, without offering an explanation to the
incriminating circumstances, appellant- Dr. Arvind Kumar takes refuge in the
plea of alibi on the ground that he was on leave from 16th May to 21st May,
2012. Plea of alibi does not stand in view of deposition of the following
witnesses: -
P.W. 6- Dr. Archna Beck, who was living in Kiriburu, has deposed in
para 11 that Dr. Arvind Kumar had met her on 21.05.2012 at 7.30 when he
had come to his house. In para 12, she has deposed that he had given a
cheque of Rs.27,000/- on that day and he also gave a cheque of Rs.40,000/-
drawn in the name of Dr. Niraj and then he left on his motorcycle. In para 21
of her cross examination, she has deposed that he was on leave for 4 - 5 days
before 21.05.2012.
D.W. 1 in para 4 has deposed that he had taken a verbal leave from
17.05.2012 to 21.05.2012 which was intimated to him by Dr. A.K. Verma on
26.05.2012 by letter dated 26.05.2012, he had taken leave from 17.05.2012 at
6.00 in the evening telephonically on the plea that his mother was ill. In para
10, he has stated that leave of Dr. Arvind Kumar for the period 17.05.2012 to
21.05.2012 has not been sanctioned till date. This demolishes the plea of
alibi. What is evident is that post facto letter was sent to DGM, SAIL,
Kiriburu regarding oral leave request made by the appellant. The said leave
was not even sanctioned and he was present at Kiriburu. P.W. 6 has deposed
that Appellant had come to her house in the evening on 21.05.2012. There is
no evidence to show that the mother of appellant was admitted in any
hospital. Rather the deposition of D.W. 2 in para 8 is to the contrary. Even if
the CDR is not considered for want of certificate under Section 65B of the
Evidence Act, I am of the considered view that the appellant has utterly failed
to establish his plea of alibi.
23. On combined reading of testimony of witnesses, it can safely be
concluded that appellant was the author of the crime which he committed in
his house by murdering the deceased in cold blood after calling him there. In
panic thereafter, he simply fled away on his motorcycle, which was later on
abandoned by him at Hazaribag. There is no explanation how his motorcycle
reached Hazaribag and was abandoned there. While leaving after the crime,
he briefly met Dr. Archna Beck (P.W. 6) who has established his presence in
evening at Kiriburu.
24. The prosecution has thus proved the charge under Section 302 of the
IPC. Judgment of conviction and sentence under Section 302 of the IPC, is
affirmed against the appellant Dr. Arvind Kumar. There is no evidence of
causing disappearance of evidence, therefore conviction and sentence under
Section 201 IPC is set aside.
25. As far as appellant- Nishi Rani Kerketta is concerned, the charge that
she conspired with the appellant- Dr. Arvind Kumar to commit the offence.
Except for the fact that there was estranged relationship with her husband
(deceased) due to her proximity with appellant- Dr. Arvind Kumar, there is
no other evidence to prove the charge of criminal conspiracy against her. Law
is settled that conspiracy can be proved by circumstantial evidence, but there
should be some evidence to establish that appellant had really conspired with
the principal accused. Deposition of P.W. 6 suggest the contrary. She has
deposed that after the deceased went missing that evening, appellant became
anxious and went in search of him and had gone with P.W. 6 to the house of
Dr. Arvind Kumar where the dead body was found locked from inside.
26. For the reasons as discussed above and the grounds taken on behalf of
the appellant- Nishi Rani Kerketta, I am of the view that the charge against
her is not proved and she is, accordingly, given the benefit of doubt.
Judgment of conviction and sentence passed against her, is set aside.
In the result,
I. Criminal Appeal (D.B.) No. 74 of 2015 stands dismissed with
modification of finding.
II. Criminal Appeal (D.B.) No. 62 of 2015 is allowed.
Sureties of appellant- Nishi Rani Kerketta is discharged from the
liabilities of bail bond.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned
along with a copy of this judgment.
(Gautam Kumar Choudhary, J.)
Per Ananda Sen, J. I agree.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated, 11th September, 2024
AFR/Anit
