Sunil Kumar Jha @ Sunil Jha vs State of Bihar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Pat) 457

IN THE HIGH COURT OF JUDICATURE AT PATNA
RAJEEV RANJAN PRASAD and JITENDRA KUMAR, JJ.
Criminal Appeal (DB) No.935 of 2014
(4.4.2024)
Sunil Kumar Jha @ Sunil Jha ... Appellant
vs.
State of Bihar ... Respondent

Advocates Appeared:
For the Appellant : M/s Anil Singh, Amicus Curiae, Sanjeev Kumar.
For the Respondent: Ms. Shashi Bala Verma, Addl. P.P.

Headnote:
Criminal Trial – Cross-examination of Witnesses – defence counsel not present at the time of examination of witnesses – hence, accused/appellant could not object to a leading or irrelevant question nor witnesses were cross examined – conviction based on such evidence – even Ld. Trial Court did not put up any question to these witnesses, when defence counsel was not present, whereas Ld. Trial Court is empowered under Section 165 of the Evidence Act to elicit relevant materials necessary for dealing the correct conclusion – Trial is against the concept of fair trial. (Paras 38 & 39)
Criminal Trial – Indian Evidence Act, 1872 – Section 118 – examination of child witnesses – competency – the Trail Court is duty bound to ask preliminary questions to the child witness with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers – in the case at hand, the Trial Court has only stated that the witness understands questions – the questions asked to the child witness and the answers given by him are not mentioned in the deposition – the competency test conducted by Ld. Trial Court is not proper in terms of Section 118. (Para 45)
Indian Penal Code, 1860 – Section 302 – the appellant alleged to have killed his wife – prosecution case based on circumstantial evidence – as per legal evidences on record, the following circumstances are established by the prosecution – Sanju Devi was throttled to death – her dead-body was found at Bhagalpur Railway Station on 21.04.2009 – six year old son of the deceased, namely, Harsh Kumar was sitting beside the dead body of the deceased – P.W. 6 had met the appellant on 21.04.2009 at Bhagalpur – the appellant had told P.W. 6 that he had no information about the death of Sanju Devi – needless to say that the aforesaid circumstances do not form a complete chain which could connect the appellant with the alleged crime – even the motive behind the commission of the alleged crime is not established – there is no link in the circumstantial evidence to suggest that the alleged offences has been committed by the appellant – suspicion, howsoever strong, is not proof and it cannot be basis of conviction of accused. (Para 74)
Code of Criminal Procedure, 1973 – Section 313 – examination of accused – as per the statement of Accused-Appellant under Section 313 Cr.P.C., it transpires that the Appellant had visited Bhagalpur Railway Station along with his wife and son and he was with them on 21.04.2009, before the death of his wife – but there is no prosecution evidence to this effect and statement under Section 313 Cr.P.C. is not substantive evidence and cannot be sole basis of conviction – the prosecution case has to stand on its own leg and the statement of the accused under Section 313 Cr.P.C. have, at most, lent credence to the prosecution case – further, all the incriminating circumstances were not put to the appellant for his explanation – his examination under Section 313 Cr.P.C. was perfunctory vitiating the Trial – prosecution to prove its case beyond doubt – accused given benefit of doubt – appeal allowed. (Paras 75, 76 & 77)
Code of Criminal Procedure, 1973 – Sections 357 and 357A read with Section 2 (wa) – compensation to the victim under Bihar Victim Compensation Scheme , 2014 – Sanju Devi has been found to have been done to death by throttling – she is survived by her minor son, who was six year old at the time of her death – undisputedly, Harsh Kumar is a victim in terms of Section 2 (wa) CrPC as per which victim includes legal heir – he is victim also because he has lost not only love and affection of his mother, but even his dependency on her, deserving succor from the state – there is no limitation prescribed in Bihar Victim Compensation Scheme, 2014 in regard to recommendation of a court for compensation to the victim under Section 357A CrPC – in case of acquittal of the accused-appellant, the Court, is duty bound to resort to Section 357A Cr PC to recommend Legal Services Authorities to pay compensation to the victim as per victim compensation to the victim, Harsh Kumar as per the 2014 Scheme. (Paras 79, 100, 108 & 109)
Cases Referred:
1973) 2 SCC 808; (1972) 2 SCC 544; (2012) 7 SCC 171; (2012) 2 SCC 584; (1997) 6 SCC 162; (1981) 3 SCC 191; AIR 2023 SC (Crim.) 1066; (2023) 4 SCC 731; (2007) 13 SCC 511; (2023) 5 SCC 522; 1999 SCC (Cri) 1319; (2009) 6 SCC 595; (2018) 13 SCC 732; (2008) 16 SCC 328; (2017) 11 SCC 195; (2023) 7 SCC 727; (2022) 8 SCC 536; (2020) 14 SCC 750; 1989 Supp. (2) SCC 706; (1984) 4 SCC 116; 2023 SCC Online SC 268; AIR ONLINE 2023 SC 150; 2022 SCC OnLine SC 1454; (2021) 5 SCC 626; 2023 (9) SCC 702; (2013) 6 SCC 770; 2023 SCC OnLine Ker. 6708; (2023 SCC Online Cal. 3683) – Relied.

Jitendra Kumar, J. – The present appeal has been preferred against the judgment of conviction and order of sentence dated 06.11.2014 passed by 3rd Additional District & Sessions Judge, Bhagalpur in Sessions Trial No. 857 of 2009, arising out of Bhagalpur Rail P.S. Case No. 17 of 2009, whereby the sole Appellant has been found guilty of offence punishable under Section 302 I.P.C. and sentenced to Rigorous Imprisonment for life and fine of Rs.10,000/- and in default to pay the fine, additional imprisonment of 3 years. The fine amount has been directed to be paid to Harsh Kumar, the son of the deceased.

2. The prosecution case, as unfolded by the written report of the Informant Radha Kant Jha dated 22.04.2009 to the S.H.O. Rail Police Station, Bhagalpur at 15 O’ Clock, is that deceased Sanju Devi was married with the sole accused Sunil Jha, Son of Late Ratneshwar Jha, Resident of Village- Madhukar Chak, Police Station- Bihariganj, District- Madhepura in 1998 as per Hindu Rites and Customs. The next day of the marriage, the accused left the matrimonial home without giving any information to anybody. After three years, he was brought to home with social efforts of the family and his Gauna was performed. Thereafter wife started living with him at the matrimonial home but relationship of his wife with her husband started deteriorating and she was subjected to torturing. She was not even maintained by her husband and the husband-accused left for Delhi and he started doing some work in Delhi itself. Thereafter Laxmi Kant Jha, the father of the deceased took his daughter Sanju Devi to accused Sunil Jha at Delhi but accused Sunil Jha again sent his wife Sanju Devi to his village by someone else and Sunil Jha stopped coming to his village. In the meantime, Sanju Devi gave birth to a son but accused Sunil Jha was not maintaining his wife and the child and Sanju Devi used to do sewing work to maintain herself and her child. It transpired that Sunil Jha had illicit relationship with one lady and that is why he was neglecting his wife. About one month back, Sunil Jha came to his village- Madhukar Chak from Delhi and unexpectedly he started loving his wife and he took her into confidence and asked her to accompany him to Delhi where they would live together and the child would be given education. Under such pretense, Sunil Jha left his home on 17.04.2009 in the morning for Delhi. The previous day i.e. on 21.04.2009, the informant got information on telephone that the dead body of his niece, Sanju Devi, is lying at Bhagalpur Railway Station and her 6 years old son Harsh Kumar was sitting by her side, but Sunil Jha had fled away after leaving the dead wife and minor child. On the information, the informant came from Barakar to Bhagalpur Railway Station and identified the dead body of his niece Sanju Devi and he also found his Nati (grand son) Harsh Kumar there. The father of Sanju Devi is unwell and he is living in his village and brother of Sanju Devi (Gangesh Jha) resides in Delhi who is coming with available train. It has been claimed by the informant that his son-in-law Sunil Jha has killed his niece Sanju Devi by taking her to Bhagalpur under a planning and deception and with intention to conceal the evidence, he fled away after leaving the dead body at Railway Station. He has come to know that accused has been arrested by the police.

3. On the basis of the written report, formal F.I.R. was lodged for the offence punishable under Sections 302 and 201 I.P.C. on 22.04.2009 at 15 O’ clock against the sole accused Sunil Jha. After investigation, charge sheet bearing no. 24 of 2009 dated 31.05.2009 was submitted against the accused, Sunil Jha, who is the Appellant herein. Cognizance of the offence punishable under section 302 and 201 of the Indian Penal Code was taken by Ld. Railway Judicial Magistrate, Bhagalpur on 26.06.2009 against the accused Sunil Jha. The case was committed to the Court of Sessions vide order dated 06.08.2009 passed by Ld. R