Jharkhand High Court
Chendaya Sandi Purty vs The State Jharkhand on 2 August, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No.1618 of 2017
With
Cr. Appeal (DB) No.1222 of 2017
------
[Against the judgment of conviction dated 28.04.2017 and order
of sentence dated 29.04.2017 passed by the learned Additional
Sessions Judge-II, West Singhbhum at Chaibasa in Sessions
Trial Case No.68 of 2011]
Cr. Appeal (DB) No.1618 of 2017
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1. Chendaya Sandi Purty, S/o Late Etwa Sandi Purty
2. Pandu Purty, S/o Gosnar Sandi Purty
3. Titu Purty, S/o Late Satri Purty
All are R/o Vill.-Kodangkel, P.O. & P.S.-Bandgaon, District-
West Singhbhum, Jharkhand
.... Appellants
Versus
The State Jharkhand .... Respondent
With
Cr. Appeal (DB) No.1222 of 2017
1. Soma Munda @ Doctor,
2. Karam Singh Purty both are S/o Late Achu Munda
3. Sau Sandi Purty @ Sahu Purty S/o Kisun Rai Purty,
All are R/o Vill.-Kodangkel, P.O. & P.S.-Bandgaon, District-
West Singhbhum, Jharkhand
.... Appellants
Versus
The State Jharkhand .... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
.....
For the Appellants : Mr. R.S. Mazumdar, Sr. Advocate
: Mr. Anjani Kumar, Advocate
: Mr. Nishant Kumar Roy, Advocate
For the State : Mr. Saket Kumar, A.P.P.
.....
C.A.V. on 13/07/2023 Pronounced on 02/08/2023
Per Sujit Narayan Prasad, J.:
-2- Since both the appeals arise out of common judgment of conviction and order of sentence, therefore, the instant appeals are being disposed of with this common order.
2. The instant appeal, filed under Sections 374 (2) of the Code of Criminal Procedure, has been preferred against the judgment of conviction dated 28.04.2017 and order of sentence dated 29.04.2017 passed by the learned Additional Sessions Judge-II, West Singhbhum at Chaibasa in Sessions Trial Case No.68 of 2011, by which, the appellants have been found guilty and convicted for the offence punishable under Section 364/34, 302/34 and 201/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years and a fine of Rs.10,000/- for the offence under Sections 364/34 of the Indian Penal Code and in case of default of payment of fine they have further been directed to undergo additional rigorous imprisonment for six months and further they have been sentenced to undergo imprisonment for life and a fine of Rs.10,000/- for the offence under Section 302/34 of the Indian Penal Code and in case of default of payment of fine they have further been directed to undergo additional rigorous imprisonment for six months. The have further been sentenced to undergo rigorous imprisonment for five years and a fine of Rs.5,000/- for the offence under Sections 201/34 of the Indian Penal Code and in case of default of payment of fine, further to undergo additional rigorous imprisonment for six months and further sentenced them to undergo imprisonment for life for the -3- offence under Sections 120(B) of the Indian Penal Code and a fine of Rs.10,000/- and in default of payment of fine, they have further been directed to undergo additional rigorous imprisonment for six months and all the sentences awarded to them shall run concurrently.
3. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of prosecution case, as per fardbeyan of informant, which reads as under:
4. As per the Fardbeyan of the informant-Ladu Lal Sandi that he has gone to Bandgaon Hat Bazar on 19-05-2010 along with his mother Pudgi Devi, father Hindu Sandi Purty and the younger brother Tulsi Das Mahto for selling goods like oil and soap etc.
5. After closure of said Hat in the evening, the informant along with his mother, father and brother, proceeded for his house. The informant after some time, went away by his bicycle and his mother, father and younger brother proceeded through a 'Pagdandi' along with the unsold articles like oil, soap etc. It has been further stated that the informant's co-villagers 1. Titu Purty
2. Sahu Purty 3. Pandu Purty 4. Sukhram Purty 5. Karam Singh Purty 6. Samu Purty and others were also following the informant's mother and father on the said Pagdandi. The informant reached to his house and cooked rice and vegetable with the help of his sister Phulmani Sandi Purty and waited for his mother and father but they did not return till 9 p.m. in the night. The informant and his younger sister Phulmani went to -4- Katwa pond but they did not find their mother and father and hence, they returned to their village and went to the house of Titu Purty, Sahu Purty, Pandu Purty, Sukhram Purty, Karm Singh Purty and Samu Purty, who were following the informant's mother and father, as well as to the house of other co-villagers, who had gone to the market on that day also. Thereafter, on 20- 05-2010, in the morning, at about 5 o' clock, when the informant was going to answer the nature's call in the field, he saw that the Titu, Samu, Sahu, Sukhram, Karam Singh, Pandu and other villagers were coming and on seeing the informant, they went to their house. After returning from field, the informant went to the house of the said persons and asked from them about his parents but they showed their ignorance about them. Thereafter, the informant started searching of his mother and father since 20-05-2010 itself by going to the house of his relatives but could not search out his parents.
6. Thereafter, the informant went to the house of his maternal uncle situated at Maliyada Tola Hessadih and told about the incident to him. The informant's maternal uncle also, started searching informant's mother and father in forest and hillocks along with some villagers. On 25-05-2010, when they reached in Barjo forest and hillock, they saw the container of oil and soap etc. which was taken by the informant's father for selling in market on 19-05-2010. It has been further stated that when the informant and his maternal uncle and villager moved ahead, they found the two decomposed dead bodies of -5- informant's mother and father lying in Barsati Nala and dead bodies were identified by them on the basis of cloth lying on the dead bodies.
7. Thereafter, the Police was informed, who reached to the place of occurrence and recorded the fardbeyan of informant Ladu Lal Sandi. It has been alleged that the murder was committed by the accused persons, namely, Titu Purty, Sahu Purty, Pandu Purty, Sukhram Purty, Karam Singh Purty and Samu Purty by sharp weapon, due to previous enmity, the accused persons had tried to commit murder of informant's mother in the year of 2006, also for which, the accused persons had gone to jail also. The dead body of informant's younger brother aged about 1.5 years was not there.
8. On the basis of fardbeyan of informant, the case was registered against the 6 accused persons u/s 364/302/201/120 B/34 I.P.C.
9. After completion of investigation, the Investigating Officer submitted charge-sheet against altogether 9 accused persons, namely, 1. Titu Purty, 2. Pandu Purty, 3. Sahu Purty, 4. Karam Singh Purty, 5. Soma Munda @ Doctor, 6. Sukhram Purty, 7. Samu Purty, 8. Chendaya Sandi Purty and 9. Soma Sandi Purty under Sections 364/302/201/120B/34 of the Indian Penal Code showing the accused persons Sukhram Purty, Samu Purty, Chendaya Sandi Purty and Soma Sandi Purty as absconder.
10. Thereafter, the cognizance of the offence was taken against the accused persons, namely, 1. Titu Purty, 2. Pandu -6- Purty, 3. Sahu Purty, 4. Karam Singh Purty, 5. Soma Munda @ Doctor, 6. Sukhram Purty, 7. Samu Purty, 8. Chendaya Sandi Purty and 9. Soma Sandi Purty under Sections 364/302/201/120B/34 of the Indian Penal Code and the case was committed to the Court of Sessions on the basis of which, S.T. Case No.68 of 2011 was registered.
11. Thereafter, vide order dated 09.01.2012, two accused persons, namely, Sukhram Purty and Samu Purty were declared absconder and their trial were separated. However, the name of one accused Soma Sandi Purty has remained still left and vide order dated 01.04.2017, a separate case record of the said accused, namely, Soma Sandi Purty has been opened. The charges were framed against the six accused persons, who had pleaded not guilty and claimed to be tried.
12. In course of trial, the prosecution has examined altogether 12 witnesses, namely, P.W. 1-Mangra Sandi Purty, P.W.2-Etwa Sandi Purty, P.W.3-Ladu Lal Sandi Purty, P.W.4-Jura Munda, P.W.5-Dr. Shiva Lal Kunkal, P.W.6-Phulmani Sandi Purty, P.W.7-Rogeya Munda, P.W.8-Lal Munda, P.W.9-Kalia Munda, P.W.10-Bhaiya Munda, P.W.11-Hari Singh Munda and P.W.12- Suraj Oraon.
13. The trial Court, after recording the evidence of prosecution witnesses, recorded the statement of the accused persons under Section 313 of the Criminal Procedure Code, in which, they denied from the prosecution evidence and claimed themselves -7- to be innocent and found the charges levelled against the appellants proved.
14. Accordingly, the appellants has been found guilty as such convicted and sentenced vide impugned judgment of conviction dated 28.04.2017 and order of sentence dated 29.04.2017, which is the subject matter of instant appeals.
15. The aforesaid judgment of conviction and order of sentence is under consideration before this Court as to whether the trial Court, while convicting the accused persons, has committed any illegality or not?
16. Mr. R.S. Mazumdar, learned Senior Counsel for the appellants has submitted that impugned judgment of conviction and order of sentence suffers from infirmity on the following grounds:
(I). The conviction is based upon the confession of appellant, namely, Soma Munda @ doctor, basis upon which, a skull was recovered, but, on the basis of his confession, the other accused persons have been convicted which is contrary to the settled position of law that confessional statement of one of the accused, cannot be applied for proving the complicity against the other accused persons.
Herein, the learned trial Court has not appreciated the aforesaid fact in convicting the other co-accused persons, basing upon the confession of said Soma Munda -8- @ doctor and hence, the impugned judgment is not sustainable in the eye of law.
(II). The further ground has been taken by referring to F.S.L. report, marked as Ext.15 and blood report, whereby, the report has come that the hair of human being, as was sent for expert examination after the recovery of hair along with skull, which was recovered on the confession of Soma Munda.
Further, the report of blood sample of the deceased has been reported that the blood is of human being. (III). It has been contended on behalf of the appellants that merely by giving a report to the extent of hair of the human being or the blood of human being, cannot be substantive piece of evidence to prove the guilt, rather, the same is to be proved by conducting D.N.A. and hence, the conviction since is based upon Ext.15 and blood report taken it to be corroborative piece of evidence with the confession of Soma Munda leading to recovery of skull, cannot be said to be justified.
In support of his argument, learned senior counsel for the appellants has relied upon the judgment rendered by the Hon'ble Apex Court in the case of Sattatiya @ Satish Rajanna Vrs. State of Maharashtra, reported in (2008) 3 SCC 210.
(IV). Learned Senior counsel for the appellants has submitted that there is no attributality of appellants, -9- namely, Chendaya Sandi Purty, Pandu Purty &Titu Purty, as would be evident from the testimony of the prosecution witnesses.
17. Learned Senior Counsel for the appellant, on the basis of the aforesaid grounds has submitted that the impugned judgment suffers from infirmity and hence, not sustainable in the eyes of law.
18. Per Contra, Mr. Saket Kumar, learned Addl. Public Prosecutor appearing for the respondent-State has submitted that it is incorrect on the part of the appellants to take the ground that the confession so made solely by Soma Munda, rather, it is joint confession, since, the confessional statement (Ext.11) contained the thumb impression of Titu Purty and Pandu Purty, and therefore, it is the joint confession of Soma Munda and Titu Purty and Pandu Purty, basis upon the said confession, the skull was recovered.
19. Further, it has come in the testimony that on the basis of identification of Tuti Purty, the blood stain ammunitions, by which, the crime was given effect to, had been recovered and hence, it is a case where on the basis of confession and identification of Soma Munda, Tuti Purty and Pandu Purty, the recovery has been made, therefore, it is a case of confession leading to recovery and hence, Section 27 of the Evidence Act is well applicable and in that view of the matter, if the judgment of conviction/sentence has been passed, the same cannot be said to suffer from an error.
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20. So far as the argument advanced on behalf of the appellants that in absence of DNA test, Ext.15 and Ext.15/1, cannot be said to be conclusive evidence to prove the complicity of the appellant, cannot be said to have any substance, since, P.W.3 and P.W.4 had last seen the appellants with the deceased persons.
21. P.W.4 has disclosed in his testimony that all the accused persons were dragging the appellant and he had seen the commission of murder of the deceased. Therefore, even there is no DNA test, but since, the hair and blood stain reported to be of human being and the deceased was seen by P.W.4, who had seen the appellants who were assaulting the deceased persons, therefore, the recovery of the skull with hair, the arms/ammunitions, by which, the commission of crime has been given effect to, is being corroborated from the testimony of P.W.3 and P.W.4 and hence, in absence of DNA test, the case of the prosecution cannot be allowed to be vitiated.
22. Learned Additional Public Prosecutor, in the aforesaid premise, has submitted that the impugned judgment of conviction and order of sentence suffers from no infirmity.
23. We have heard learned counsel for the parties, perused the material available on record more particularly the testimony of the witnesses and the finding recorded by learned trial Court.
24. This Court, before going into the legality and propriety of the impugned judgment of conviction/sentence, deems it fit and proper to refer the testimony of prosecution witnesses.
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25. P.W.1-Mangra Sandi Purty & P.W.2-Etwa Sandi Purty have been declared hostile.
26. P.W.3-Ladu Lal Sandi Purty (informant) has deposed in his examination-in-chief that the incident is of 3 years ago dated 19-05-2010 and the day was of Wednesday. When he was returning from Bandgaon market along with his father Hindu Sandi Purty, mother Pudagi Devi and younger brother Tulsi Das with unsold articles and the accused persons were coming from another way. The villagers Titu Purty, Sahu Purty, Pandu Purty, Karam Singh Purty, Soma Purty, Chendaya Purty, Sukhram Purty and Samo Purty were also coming along with his mother and father. He had reached to his house earlier by his bicycle. He was waiting for his mother, father and brother but they did not return. He went to the house of all the accused persons in search of his father, mother and younger brother, but they had not returned to their house. Next day in the morning, he saw all the accused persons returning from the Barjo forest and asked from them about his mother, father and brother, upon which, they told that they had not seen his mother, father and brother. Thereafter, he went to the house of his maternal uncle and started to search his mother, father and brother.
27. He has further stated that after one week, the dead body of his mother and father was found in the Barjo forest. He has identified the dead body and informed the Police. The Police came there and he has told all the things to Police.
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28. He has further stated that accused persons had assaulted his mother prior to this incident also. Further, he has identified his signature as well as the signature of Kaila Munda over fard- beyan (Ext.1 & 1/1). He has further stated that his maternal uncle as well as the Jura Munda, Rogiya Munda, Harishchand Munda and other had also gone with him in the forest. The detergent soap, Sandesh soap etc. was also recovered from besides the dead body and iron rod, bag and blood stained soil, were also recovered. Thereafter, the Police arrested the Titu, Pandu and Soma in course of interrogation from them, the skull of the child was also recovered. Further, he has identified the accused persons Titu, Pandu, Sahu, Soma, Chendaya, Karam Singh.
29. In his cross-examination, he has deposed that his village is situated at the distance of about 3-4 Km from Bandgaon market.
30. He has further deposed that apart from the accused persons, some other villagers were also returning from the market and he had not seen the incident.
31. He has further stated that a case was lodged regarding previous enmity and further he has denied from this suggestion of defense that the accused persons have been falsely implicated in this case due to previous enmity.
32. P.W.4-Jura Munda has deposed in his examination-in- chief that Sandesh detergent soap etc. was seized from Barjo forest and he had also signed over it (Ext.2).
33. He has further deposed that the inquest report is also in two original copies which bear his signature (Ext.3 & 3/1).
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34. He has further stated that the Ext.3 was related with female Pudungi Devi whereas the Ext.3/1 was related with Hindu Sandi Purty.
35. He has further deposed that in the month of May, 2010 on Wednesday, he had gone to Bandgaon market where he had met to his brother-in-law (Jija) Hindu Sandi Purty and elder sister Pudungi Devi and nephew Tulsi Das aged about one and half years as well as Ladura Sandi Purty also. They were returning from there in the evening. His Jija was carrying soap, oil etc. with him. He stopped at Katwa Banda Sukra for latrine whereas his Jija, sister and her son continued their journey.
36. Titu Purty, Pandu Purty, Karam Singh Purty, Sahu Purty, Soma Purty, Sukhram Purty, doctor Soma and Chendaya also went in the same direction, in which, his sister and brother-in-law were going. His sister and brother-in-law and nephew had not reached the house.
37. He has further deposed that he had seen from the place, where he was sitting that the accused persons were assaulting his sister, brother-in-law and nephew but he escaped from there due to fear. On 20th day, his nephew Ladu Lal Sandi Purty came to him in search of his father and mother and they started searching. They found the dead body of his sister and brother-in- law (Jija) on 25th day. Thereafter, they informed the Police.
38. He has further identified the accused persons before the Court and stated that there was dispute of his sister with the
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accused persons since earlier also. He has further deposed that subsequently skull bone and hair of a child were also recovered.
39. In his cross-examination, he has deposed that on the date of incident, he returning from market at about 5 P.M. and his village was at the distance of about 18-20 Km from Bandgaon. He had gone to market for purchasing and he had purchased a 'Ganji' from there. The village of his Jija situated at about 25 Km from his village.
40. He has further stated that he had told the Police that he had seen the accused persons assaulting his jija and sister but he escaped from there due to fear. He has further denied from this suggestion of defense that he has not seen anything and he has falsely deposed before the Court due to previous enmity.
41. P.W.5-Dr. Shiva Lal Kunkal has stated in his examination-in-chief that on 26-05-2010, he was posted as Medical Officer at Sadar Hospital, Chaibasa and on the same day at about 12:30 P.M., he had conducted postmortem examination on the dead body of Hindu Sandi Purty who was brought and identified by Hawaldar Medini Thakur of Bandgaon P.S. and found the following injuries:-
Riger Mortis-Absent.
External Injuries-
Bruise in right side of face, with fracture of right parital bone of skull.
Maggot present in all body.
Internal on dissection:-
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Head:- Meninges, lacerated and pale.
Thorax:- Heart- both chamber empty.
Lungs:- both side empty.
Abdomen:- Stomach:- digested food material present. Other viscera:- N.A.D. Time since death:- 4 to 6 days.
Cause of death:- Hemorrhage & shock due to hard and heavy substance.
42. He has identified the postmortem report and put his signature upon the report (Ext.4). He has further stated that on the same day at about 1:00 P.M., he had conducted postmortem examination on the dead body of Rogo Devi Joje brought and identified by the same person and found the following injuries:-
Rigor Mortis- Absent.
External Injury-
Lacerated wound in left parietal of head 3" X 2" X deep to bone.
Lacerated wound in right parietal of head 5" X 2" X deep to bone.
On dissection:-
Head:-Fracture of right parietal bone. Meninges, lacerated and pale.
Thorax:- Heart-both chamber empty.
Lungs:- both side empty.
Abdomen:- Stomach:- contains digested food. Other viscera:- N.A.D.
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Time since death:- 4 to 6 days.
Cause of death:-Hemorrhage & shock due to sharp cutting substance.
43. He has further identified he postmortem report of Purugi Devi Jojo and put the signature upon it. (Ext.4/1).
44. In his cross-examination, he has stated that if a person falls on hard surface then injuries of both deceased are possible. No weapon was produced before him.
45. P.W.6-Phulmani Sandi Purty has deposed in her examination-in-chief that two years ago, her father Hindu Sandi Purty, mother Purangi Bodra and younger brother Tulsi Das and her elder brother Ladu Lal Sandi Purty had gone to sell soap, match-box, and tobacco etc. in the Bandgaon market. She had also gone with them. Her father Hindu Sandi Purty and Pudangi Bodra and her younger brother Tulsi Das and elder brother Ladu Lal Sandi Purty proceeded from market at 5:00 P.M.
46. When they reached near Katuwa village, the Titu Purty, Pandu Purty, Karam Singh Purty, Doctor Soma Munda, Soma Purty, Sukhram Purty and Chendeya Purty etc. restrained them, upon which, she along with her brother Ladura escaped from there and came to her house but her mother, father and younger brother did not return to home in the night.
47. In the morning, she saw the accused persons returning from forest and her brother told all the things to her maternal uncle Singing Bodra. Thereafter, they started searching of their father, mother and younger brother and after one week, the dead
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body of her mother, father and younger brother as well as the skull of younger brother Tulsi Das was found in Barjo forest.
48. The Police had arrested Titu, Soma and Sau and interrogated from them. She has identified all the accused persons before the Court also.
49. In her cross-examination, she has deposed that we had reached in the market at 11 o' clock on that day and proceeded to her house from there at 5 o' clock in the evening.
50. She has further deposed that the Katu village is at about 1 Km distance from her village and there are several houses in Katu village. She had reached to Katu village at 5:30 o' clock and several people were also returning from the market when she was returning.
51. She has further denied from this suggestion of defense that she had told the Police in her statement that at the time of incident, she and her brother were at the house and she had not told the Police about restraining them by the accused persons at Katu village. She has further deposed that she had not gone to see the dead body of her mother, father and brother and she has stated about the recovery of their dead body from Barjo forest.
52. P.W.7-Rogeya Munda has deposed in her examination-in- chief that on 19-05-2010, she had gone to the Bandgaon market. After purchasing from market, she went to the Hindu Sandi Purty and his wife Purangi Devi, upon which, they offered tea to her. Thereafter, she proceeded to her house along with their son Ladu Lal Sandi Purty. The Chendaya Sandi Purty, Pandu Sandi
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Purty, Karam Singh Sandi Purty, and Dr. Soma Munda etc. altogether 9 persons were also following them. The Ladu Lal Sandi Purty told her that these persons are the villagers.
53. She has further stated that on 23-05-2010, Ladu Lal Sandi Purty came to her village and told to his material uncle Jura Munda that his mother, father and younger brother have not returned from Bandgaon market and even after making inquiry from the people of nearby, they had not been found.
54. Jura Munda told about it to her and other villagers also, upon which, they started searching in forest and on 25-05-2010, they saw the dead body lying near Barsati Nala in the Barjo forest.
55. The son of the deceased identified the dead bodies as their mother and father. Thereafter, Bandgaon Police was informed and Police came there and took the dead body after making it paper, which was also signed by her (Ext.3/2 & 3/3).
56. She has further stated that about one month earlier from the date of incident, the Pudangi Devi had come to her village and she had told that the Chendaya Sandi Purty etc. altogether 9 persons are threatening her that earlier she had lodged a case, in which, they had to go to jail but this time nobody will be left. She has identified the accused persons Chendaya Sandi Purty. Pandu Sandi Purty, Sahu Sandi Purty and Dr. Soma Munda before the Court but she had not identified the rest of the accused persons.
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57. In his cross-examination, she has deposed that the distance of Konadkal from her village is about 12-13 Km and the distance of my village from Bandgaon Haat is about 16 Km.
58. She has further stated that they had stayed in the market about 2 hours and her villagers Jura Munda, Bhaiya Munda, Hari Singh Munda, Kaila Munda and Lal Munda were also with her. She has further admitted that he had not seen any person committing the murder.
59. P.W.8-Lal Munda has deposed in his examination-in-chief that on 19-05-2010, at about 3 o' clock, the Police had recovered skull of Tulsi Das, Hair, detergent soap, an umbrella, iron rod and two sticks of bamboo from Barjo forest on disclosure of accused Titu Purty. The Police had recovered the aforesaid things thereafter preparing the seizure-list and he had also put his signature over the seizure-list (Ext.5).
60. He has further deposed that on the same day, the Police had recovered blood stained soil from Katua Banda Sikura and thereafter preparing the seizure-list and the seizure-list bears his signature (Ext.6).
61. He has further deposed that the incident is of 5-6 years ago. The Hindu Sandi Purty along with his wife Puragi Purty and son Tulsi Das, had gone to Bandgaon market but they did not return in the night. Thereafter, Ladu Lal Sandi Purty came in their search in his village and told about the non-returning of his mother and father. Thereafter, we started searching along with Police and after one week, the dead body of Hindu Sandi Purty
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and his wife Purangi Purty was found in Barsati Nala of Barjo forest.
62. He has further stated that there are seven accused persons in this case and further he has also stated that the articles were recovered on the disclosure of Titu Purty. He has identified the accused Titu before the Court also but he has not identified the rest of the accused persons.
63. In his cross-examination, he has deposed that he had not seen the incident. In course of search, about 10 police personnel were also with them and he has further admitted that the Police party was proceeding to the way of forest according to disclosure, by Ladu Lal Sandi Purty. He has further deposed that Police had not recorded my statement and further, he has also denied from the suggestion of defense that he has falsely deposed before the Court.
64. P.W.9-Kalia Munda has deposed in his examination-in- chief that about 5 years ago, he had seen the dead body of Hindu Sundi Purty and Purangi Devi in Barjo forest and subsequently, he was informed that Titu, Pandu, Sahu, Sukhram Singh, Karam Singh, Samu, Doctor Soma and Chendaya Sandi Purty had committed murder of Hindu Sandi Purty and Pudangi Devi and their child due to enmity.
65. Further, he has deposed that Ladu Lal Sandi Purty is the son of deceased Hindu Sandi Purty and further he has identified the accused persons before the Court also.
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66. In his cross-examination, he has deposed that he had heard about the incident but he can't say that who had told the name of accused persons to him. He had not gone to Konankal village.
67. P.W.10-Bhalya Munda has deposed in his examination-in- chief that on 19-05-2010, he had gone to weekly market Bandgaon. He took tea etc. with the Pudangi Devi and Hindu Sandi Purty and there was a child in the lap of Pudangi Devi also. They had gone to sell soap, oil etc. in the market. In the evening, Pudangi Devi and Hindu Sandi Purty proceeded for their house with unsold articles and Titu Sandi Purty, Sahu Sandi, Sukhram Sandi Purty and Samu Purty were also following them in the way. He had heard that the accused persons killed the said Pudangi Devi and Hindu Sandi Purty, as there was previous enmity between them.
68. He has further stated that earlier a case was pending in between them. The Pudangi Devi and Hindu Sandi Purty used to say that the accused persons were threatening to kill them.
69. The dead body of Pudangi Devi and Hindu Sandi Purty were found in kilung Barjo forest after 01-05 days. Thereafter, the dead body was sent to Chaibasa for postmortem. He has identified all the accused persons before the Court also.
70. In his cross-examination, he has deposed that the way of Maliyada village and Kodekel village from Bandgaon, are different and when they were taking tea, there were five other persons of his village also.
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71. He has further deposed that he had not seen the incident and the wife of Hindu Sandi Purty was his elder sister.
72. He has denied from the suggestion of defense that the accused persons have been falsely implicated in this case due to previous enmity.
73. P.W.11-Hari Singh Munda has deposed in his examination-in-chief that the incident was of dated 19-05-2010. He had gone to Bandgaon market on that day. He had seen the Soma Munda, Titu Sandi Purty, Pandu Purty, Sukhram Purty, Karam Singh Purty, Saw Purty, Samu Purty and Chendaya Sandi Purty in the market, on that day and were wandering around the shop of Hindu Sandi Purty.
74. He has further deposed that there was a shop of Hindu Sandi Purty for selling of oil and soap etc. and in the evening, he was returning to his house with unsold articles and his elder son Ladu Lal Sandi Purty and wife Pudangi Devi and a breast feeding child was also with them. After going to some distance, the elder son of Hindu Sandi Purty moved ahead by his bicycle whereas both the aforesaid husband and wife proceeded by 'Pagdandi". The accused Soma Munda, Titu Sandi Purty, Pandu Purty, Karam Singh Purty, Sukram Sandi Purty, Sao Purty Samu Purty and Chendaya Sandi Purty were also following the Hindu Sandi Purty and his wife and child, were murdered in the way. On 23-05-2010, Ladu Lal Sandi Purty came to his village Maliyada and he told that his mother and father as well as the breast feeding child have not returned to home. Thereafter, after
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consulting with the villagers, they started searching and in course thereof, they found the two dead bodies in Barjo forest but the dead body of child was not found. On 29-05-2010, the Chawkidar of Murhu P.S. came and told him that the people of Bandgaon police station had called you. Thereafter, they proceeded along with the accused Titu Sandi Purty and the police party in search of dead body of child and Titu Sandi Purty shown the place where skull of the child and hair was found and the dead body of child had decomposed. A blood stained stick as well an umbrella and an iron rod, measuring about two hands, were also found there. The aforesaid articles were seized thereafter seizure list was prepared and he had also signed on the seizure list voluntarily (Ext.7).
75. He has further deposed that in course of returning, he also reached at Katuwa Banda Sukra where all the deceased were murdered and this place was shown by Titu Sandi Purty.
76. He has further deposed that Titu Sandi Purty had also shown blood stained soil, stone and mark of stretching at that place and the police had seized the blood stained soil and stone after preparing its Seizure-list and he had also signed over it voluntarily (Ext. 7/1).
77. He has further deposed that there was an earlier case also between the accused persons and Hindu Sandi Purty and whenever the Pudangi Devi used to come to his house and she used to say that the accused persons are threatening to kill her. He has identified all the accused persons before the Court.
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78. In his cross-examination, he has denied from this suggestion of defense that he is not identifying the accused persons by face and he has also stated that he had not seen the incident. He came to know about the incident, on 23-03-2010, when the Ladu Lal Sandi Purty came to his village Maliyada Tola Hessadih and told about it.
79. He has further deposed that on the date of incident, he had reached to Bandgaon market at 12 o' clock and he had returned to his house at 5 o' clock. The weekly market organized in Bandgaon on Wednesday and several people of nearby used to come in the market on that day.
80. Further, at para-14 of his cross-examination, he has deposed that the skull and hair was found in the western side from the place where the dead body was found and no other part of decomposed body of child was found at the place where skull was found.
81. He has further deposed that the paper for recovery of each article was prepared at the place where it was recovered itself, but he had signed after returning to police station.
82. He has further deposed that the distance of Katuwa Banda Sukra to Barjo village is about 12 Km and he had not seen any other person of Kodalkel village, except the accused persons in the market on that day.
83. He has further denied from this suggestion of defense that he is falsely deposing before the Court.
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84. P.W.12-Suraj Oraon has deposed in his examination-in- chief that on 25-05-2010, he was posted as officer-in charge of Bandgaon P.S. and at about 10 o' clock on that day, he has received information that some incident occurred near Barjo forest and hillocks. He had entered Sanha No.431/2010 and proceeded for Barjo forest.
85. After reaching to Barjo forest hillocks, he has recorded fard-beyan of Ladu Lal Sandi Purty and took charge of investigation of this case at the place of occurrence itself. He saw that two decomposed dead bodies were lying there and he prepared its inquest report in presence of two independent witnesses Jura Munda and Rogya Munda.
86. He has further identified the inquest report of Hindu Sandi Purty in his writing and signature and bearing signature of witnesses Jura Munda and Rogeya Munda (Ext.8) and further he has also identified the inquest report of Pudagi Devi bearing the signature of witnesses Jura Munda and Rogeya Munda (Ext.8/1). He has further identified the fard-beyan of L5adu Lald Sundi in his writing and signature and stated that it was recorded in the Barjo forest hillocks and it bears signature of Ladu Lal Sundi and Kaila Munda and it bears endorsement in his writing and signature also. The entire fardbeyan has been marked as Ext.9.
87. Further, he has also identified the formal F.I.R. in the writing of Munshi Arjun Singh and having signature of this witness as the officer-in-charge (Ext. 10) and has further stated
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that the dead body was sent to Sadar Hospital, Chaibasa for its postmortem.
88. He has recorded re-statement of informant who fully supported the prosecution case and thereafter, he visited the place of occurrence. He has disclosed the details of place of occurrence and he has further stated that he had recorded the statement of Jura Munda, Rogeya Munda, Kaila Munda, Bhaiya Ram Munda and Phulmani Sandi Purty who fully supported the prosecution case.
89. He had also recorded the statement of witness Mangra Sandi Purty also, who disclosed that on previous Wednesday i.e. 19-05-2010, he had not come to market and he was busy, in constructing house with his uncle Etwa Sandi Purty. After finishing of his work, he along with his uncle Etwa Sandi Purty reached near Sokra Talab of Katwa village, in the meantime, suddenly the Soma doctor, Chendaya Sandi Purty, Soma Sandi Purty, Titu Sandi Purty, Pandu Sandi Purty, Sahu Sandi Purty, Sukhram Sandi Purty, Samu Sandi Purty and Karam Singh Sandi Purty suddenly came out of bush and they started to assault the informant's mother, father and the child and dragged them towards southern side. The child and his mother started to cry and we saw the incident by hiding in the bush.
90. He had also told that as it was moon light it was visible and the Chendeya and Soma Sandi Purty had taken sharp knife and all the accused persons had taken danda and after some time, the sound of cry was stopped. Thereafter, the accused persons
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took them towards forest after committing their murder. He had also told that when the accused persons were committing murder, some persons were coming from side of pond but the accused persons shouted and threatened them to escape from there by threatening to kill them and the accused persons were also saying that whoever has seen the incident, shall not disclosed about it to anybody otherwise he will have to face similar consequence. He had also stated that they were afraid and after going of accused persons from that place, they returned to their house.
91. He has further stated that he had taken statement of informant Sandi Purty who had fully supported the case. Thereafter, he has arrested the Soma Munda and recorded his confessional statement which was in his writing and signature and bearing signature of Soma Munda also (Ext.11). The said Soma Munda had disclosed in his confessional statement that on 18/19-05-2010 there was a call of 'Band by Maoist and on 18-05- 2010, nine accused persons, made a meeting and made planning for committing murder of deceased and according to that they reached to west of Katuwa Talab in the bush and they caught husband, wife and their child and assaulted them and took them to some distant place and thereafter, they had committed their murder and thereafter, they had thrown the soap, oil and dead body of said three deceased in the Sasural of Titu Purty in Barjo forest. In course of returning from there, it was morning and when we were returning, the Ladu Lal Sandi was
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going to answer the nature's call and he had seen them. Thereafter, on 29-05-2010 he was discussing along with the Titu Purty and Pandu after sitting in school, in the meantime, the son of deceased along with his maternal uncle and police party came and caught them.
92. He has further deposed that accused Soma Munda told him that he can show the place where they had committed the murder and he can also show the place where the dead body of Hindu Sandi Purty and his wife was thrown and he has further told that he can make us to recover the said articles also.
93. Thereafter, they went in the Barjo forest along with accused and on the identification of accused Titu Purty skull of Tulsi Das Sandi and hair as well as Sandesh detergent soaps, blood stained bamboo stick measuring about two hands, an umbrella and iron rod, were recovered. The said articles were duly seized in presence of witnesses Lal Munda and Hari Singh Munda after preparing the seizure-list which was in his writing and signature which bears signature of witnesses as well as the signature of accused persons Titu Purty, thumb impression of Pandu Sandi Purty and signature of accused Soma Munda also (Ext.12).
94. He has further stated that on 29-05-2010 itself, he had recovered blood stained soil, stone and long hairs in presence of witnesses Lal Munda and Harish Singh Munda after preparing seizure-list which was in his writing and signature and it bears the signature of both the witnesses also and the thumb
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impression of accused Titu Purty and Pandu Sandi Purty and signature of Soma Munda at whose instance the said articles were recovered (Ext.13).
95. He has obtained postmortem report of deceased and the blood stained stone, soil and hair was sent to Forensic Medicine and Toxicology Department M.G.M. Medical College, Jamshedpur. He has further stated that there was earlier dispute of deceased Hindu Sandi Purty and accused Titu Purty, Pandu Purty, Karam Singh Purty. Sahu Purty, Samu Purty and Sukhram Purty and an agreement was prepared in between them also.
96. He has identified the photocopy of agreement (Identification mark X). He has further stated that after finding a case true against the accused persons, namely, Titu Purty, Sahu Purty, Pandu Purty, Karam Singh Purty, Sukhram Purty and Samu Purty, he had submitted charge-sheet No. 25/2010, dated 24.08.2010 under Sections 364, 302, 201, 120B/34 of the I.P.C. He has also identified the accused persons whom he had arrested.
97. In his cross-examination, he has deposed that the skull of the child which was recovered from Barjo forest was not sealed and he had not made any special mark of identification over the detergent soap and blood stained bamboo stick, umbrella and iron rod.
98. He has further deposed that the Jura Munda and Rogeya Munda had come in forest in search of dead body and they had informed him.
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99. Further, at para-35, he has deposed that Mangra Sandi Purty and Etwa Sandi Purty had told him that they had seen the incident.
100. Jura Munda had not told him that the accused persons were assaulting his sister and brother-in-law and he escaped and he had also not told him that he had stopped near Katuwa for latrine.
101. Phulmani had not told him that she had also gone with parents.
102. The learned trial Court, on the basis of oral as well as documentary evidence available on record, passed the impugned judgment of conviction and order of sentence, which is the subject matter of instant appeal.
103. It requires to refer herein that the learned trial Court has considered the conviction by convicting the appellants on the basis of confessional statement of Soma Munda.
104. This Court before proceeding to examine the legality and propriety of the impugned judgment, deems it fit and proper first to decide as to whether the confessional statement of Soma Munda is only the confession made by him or it is the joint confession so that the confession so made leading to recovery will attract the complicity of the accused persons who have jointly confessed the guilt.
105. It appears from Ext.11 that the aforesaid confessional statement having the thumb impression of the appellants, namely, Titu Purty and Pandu Purty.
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106. It is further evident from the testimony of the Investigating Officer-P.W.12 that on confession made by Soma Munda, the skull was recovered.
107. Further, on identification of Tuti Purty, the blood stain materials had been recovered from the place of occurrence. Since, the confessional statement of Soma Munda @ Doctor leading to recovery is bearing with the thumb impression of three co-accused persons, namely, Titu Purty and Pandu Purty, which is having with objection, as would appear from Ext.11, therefore, this Court is of the view that the argument which has been advanced that the confessional statement basis upon which the recovery has been made, cannot be said to be applicable with respect to other co-accused persons, rather, it is applicable only to Soma Munda, is having no substance.
108. This Court is now proceeding to examine the other ground, as has been agitated on behalf of the appellants that Ext.15 and cannot be basis of conviction, since, FSL report is regarding hair and blood of human being and as such, DNA test was required to be conducted to ascertain as to whether the blood or hair which was said to be of human being, were actually of the deceased or not.
109. There is no dispute on the settled position of law that it is onus upon the prosecution to prove the case beyond all shadow of doubts.
110. In a case of leading to recovery on the basis of confession, the consideration of the cogent evidence is having more bearing
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so as to prove the complicity of the accused person. But the aforesaid principle is to be applied depending upon the facts and circumstances of the case.
111. The foremost issue in the instant case is that if the other cogent evidences are available on record, then whether the DNA test has not been conducted, can the entire prosecution be said to be vitiated.
112. This Court in order to answer the aforesaid issue deems it fit and proper to refer the testimony of P.W.3 & P.W.4.
113. It is evident from testimony of P.W.3 that he had seen the appellants, namely, Titu Purty, Sahu Purty, Pandu Purty, Karam Singh Purty, Soma Purty, Chendaya Purty, Sukhram Purty and Samo Purty along with the deceased, as would appear from the paragraph-1 of the testimony of P.W.3.
114. P.W.4 has also deposed in his testimony that he had also seen the accused, namely, Titu Purty, Sahu Purty, Pandu Purty, Karam Singh Purty, Soma Purty, Chendaya Purty, Sukhram Purty and doctor Soma assaulting the deceased where the occurrence took place which is the place from where the skull and the blood stain arms/ammunitions were recovered, as would be evident from paragraph-4 of the testimony of P.W.4.
115. It is, thus, evident that P.W.4 had categorically deposed about the assault given by the appellants upon the deceased.
116. It appears from the cross-examination of P.W.4, wherein, he remained consistent with the deposition which he has made in the examination in-chief.
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117. In the instant case, on the basis of confessional statement of accused/appellant Soma Munda @ Doctor, skull, hair etc. were recovered.
118. The law is well settled with respect to the applicability of Section 27 of the Evidence Act, as per the judgment rendered by the Hon'ble Apex Court in Earabhadrappa Vrs. State of Karnataka, reported in AIR 1983 SC 446. Paragraph-7 of the said judgment reads as under:
"7. There is no controversy that the statement made by the appellant Ex. P-35 is admissible under Section 27 of the Evidence Act. Under Section 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word "fact" means some concrete or material fact to which the information directly relates. As explained by Sir John Beaumont in Pulukuri Kotayya v. King-Emperor [(1947) 74 IA 65 : AIR 1947 PC 67 : 230 IC 135] :
"... it is fallacious to treat the "fact discovered"
within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact."
119. Further, in Nisar Khan @ Guddu v. State of Uttaranchal, 2006 (9) SCC 386, the Hon'ble Apex Court at paragraph nos.6 to 8 has been pleased to observe which read as under:
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"6. Regarding the second contention that the recovery of arms has not been proved by the prosecution has also no substance. It is evidence on record that the accused were arrested on 17-12-1999 and pursuant to a disclosure statement made by them, the arms were recovered from the bank of Gaula river where these had been hidden under the sand and covered by the stones. All the arms were recovered as pointed out by each accused hidden under the stones. The High Court fell in error in holding that the recovery has not been proved as these were recovered from a place which is frequented by the public. This finding of the High Court is contrary to the evidence on record. It is now well settled principle of law that the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. In Dhananjoy Chatterjee v. State of W.B. [(1994) 2 SCC 220 : 1994 SCC (Cri) 358] it is held that the entire statement made by an accused person before the police is inadmissible in evidence being hit by Sections 25 and 26 but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act. It is also held that the Court must disregard the inadmissible part of the statement and take note only of that part of his statement which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further held that the discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to its existence.
7. In Golakonda Venkateswara Rao v. State of A.P. [(2003) 9 SCC 277 : 2003 SCC (Cri) 1904] this Court reiterated the view and held that the discovery statement of an accused
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leading to recovery of crime articles from concealed place, even though the discovery statement and the recovery memo did not bear the accused's signature, the fact of recovery from the well and dug out was from a place which was pointed out by the appellant and, therefore, such discovery was voluntary. That the recovery was in consequence to the information given was fortified and confirmed by the discovery of the apparel worn and skeletal remains of the deceased and, therefore, the information and statement cannot be held to be false. In the present case on the recovery memo the signatures of all the accused have been obtained. In Praveen Kumar v. State of Karnataka [(2003) 12 SCC 199 : 2004 SCC (Cri) Supp 357] the same view has been reiterated.
8. As already noted, in the instant case the discovery of the arms was pursuant to the disclosure statement made by the accused immediately after the arrest and the offending arms were recovered at the place pointed out by each of the accused which were concealed under the sand and covered by the stones. The High Court in this regard fell in grave error by disbelieving the recovery memo solely on the ground that the place is a common place which is frequented by the public. The High Court failed to take notice that the recovery has been made from underneath the sand covered by the stones pursuant to the disclosure statement pointed out by each of the accused."
120. It is evident from the aforesaid proposition that the confession leading to recovery is very weak piece of evidence and it is to be relied only in a case where the other corroborating evidences are there.
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121. This Court by taking together the testimony of P.W.3 and P.W.4 and considering the confession of three accused persons, namely, Soma Munda @ Doctor and on the same confessional statement, Pandu Purty and Titu Purty had put their LTI, is of the view that the prosecution version cannot vitiate, since, other ocular evidences are there by way of testimony of P.W.3 and P.W.4.
122. The law is well settled based upon the recovery in a case of confession, the conviction is to be there but simultaneously it is also to be considered that in case of circumstantial evidence whether, the chain is complete or not, since, in that circumstance, the chain is required to be completed, as has been held by the Hon'ble Apex Court in the judgment rendered in the case of Hanumant son of Govind Nargundlar vs. State of Madhya Pradesh, AIR 1952 SC 343, wherein it has been held that "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that
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within all human probability the act must have been done by the accused."
123. The same view has been taken by the Hon'ble Apex Court in Bakhshish Singh vs. State of Punjab, (1971) 3 SCC 182 wherein the Hon'ble Apex Court has observed that the principle in a case resting on circumstantial evidence is well settled that the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. These circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
124. The Hon'ble Apex Court while laying down such proposition in the said case has considered the factual aspect revolving around therein and while considering the fact has only found the incriminating evidence against the appellant was his pointing the place where the dead body of the deceased had been thrown which the Hon'ble Apex Court has not considered to be a circumstantial evidence though undoubtedly it raises a strong suspicion against the appellant. The Hon'ble Apex Court while coming to such conclusion has observed that even if he was not a party to the murder, the appellant could have come to
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know the place where the dead body of the deceased had been thrown. Hence anyone who saw those parts could have inferred that the dead body must have been thrown into the river near about that place. In that pretext, the law has been laid down at paragraph-9 thereof, which reads as under:
"9. The law relating to circumstantial evidence has been stated by this Court in numerous decisions. It is needless to refer to them as the law on the point is well-settled. In a case resting on circumstantial evidence, the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. Again those circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
It is, thus, evident from the close analysis of the aforesaid judgments the following conditions must be fulfilled before a case fulfilled before a case against an accused can be said to be fully established:
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(iii) the circumstances should be of a conclusive nature and tendency,
(iv) they should exclude every possible hypothesis except the one to be proved, and
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(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
125. The Hon'ble Apex Court has reiterated the said principle again in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 holding all the above five principles to be the golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence.
126. The Hon'ble Apex Court in the said case as under
paragraph-155, 156, 157, 158 and 159 has been pleased to hold that if these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. Paragraphs-155, 156, 157, 158 and 159 of the said judgment read as under:
"155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry [1952 NZLR 111] thus: "Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.
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156. Lord Goddard slightly modified the expression "morally certain" by "such circumstances as render the commission of the crime certain".
157. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry case [1952 NZLR 111] was approved by this Court in Anant Chintaman Lagu v. State of Bombay [AIR 1960 SC 500 :
(1960) 2 SCR 460 : 1960 Cri LJ 682] . Lagu case [AIR 1960 SC 500 : (1960) 2 SCR 460 : 1960 Cri LJ 682] as also the principles enunciated by this Court in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases --
Tufail case [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] , Ramgopal case [(1972) 4 SCC 625 : AIR 1972 SC 656] , Chandrakant Nyalchand Seth v. State of Bombay [Criminal Appeal No 120 of 1957, decided on February 19, 1958], Dharambir Singh v. State of Punjab [ Criminal Appeal No 98 of 1958, decided on November 4, 1958 printed on green papers in bound volumes]. There are a number of other cases where although Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 :
1953 Cri LJ 129] has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration [(1974) 3 SCC 668, 670 : 1974 SCC (Cri) 198, 200 : (1974) 2 SCR 694, 696] , Mohan Lal Pangasa v. State of U.P. [(1974) 4 SCC 607, 609 : 1974 SCC (Cri) 643, 645 : AIR 1974 SC 1144, 1146] , Shankarlal Gyarasilal Dixit v. State of Maharashtra [(1981) 2 SCC 35, 39 : 1981 SCC (Cri) 315, 318-19 :
(1981) 2 SCR 384, 390 : 1981 Cri LJ 325] and M.G. Agarwal v. State of Maharashtra [AIR 1963 SC 200 : (1963) 2 SCR 405, 419 : (1963) 1 Cri LJ 235] -- a five-
Judge Bench decision.
158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor General relying on a decision of this Court in Deonandan Mishra v.
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State of Bihar [AIR 1955 SC 801 : (1955) 2 SCR 570, 582 : 1955 Cri LJ 1647] to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus:
"But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation,. . . such absence of explanation or false explanation would itself be an additional link which completes the chain."
159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz. before a false explanation can be used as additional link, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation."
127. The foremost requirement in the case of circumstantial evidence is that the chain is to be completed.
128. This Court in view of the aforesaid discussion, is of the view that the conviction of the appellants, namely, Soma Munda @ Doctor, Pandu Purty and Titu Purty, cannot be said to suffer from an error.
129. So far as the conviction pertaining to other co-appellants, namely, Chendaya Sandi Purty, Karam Singh Purty and Sau Sandi Purty @ Sahu Purty are concerned, this Court is now proceeding to examine as to whether any cogent evidence has
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been produced by the prosecution before the learned trial court proving the guilt of these appellants said to have proved the guilt of these persons beyond all shadow of doubts.
130. It appears from the impugned judgment of conviction of these appellants which is based upon the confessional statement of the appellants, namely, Soma Munda @ Doctor, Pandu Purty and Titu Purty, save and except, there is no evidence against them. It is settled law as has been propounded by the Hon'ble Apex court that confession of co-accused cannot be applied to convict the other co-accused. Reference in this regard may be made to the judgment rendered by the Hon'ble Apex in the case of Asar Mohd. Vrs. State of U.P., reported in (2019) 12 SCC 253, wherein, at paragraph-23 & 24, it has been held as under:-
"23. The question is whether the same evidence or proved circumstances can be used against the other two appellants, namely, Asraf Mohammed and Akhtar Mohammad. Indisputably, except the confession of the co-accused Asar Mohammed (Appellant 1), the prosecution has not produced any independent substantive evidence to even remotely suggest that Appellants 2 and 3 were involved in committing the murder of Zahida and Ishlam. By now, it is well settled that confession of the co-accused by itself cannot be the basis to proceed against the other accused unless something more is produced to indicate their involvement in the commission of the crime.
24. This Court in Kashmira Singh v. State of M.P. [Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ 839] , relying upon the decision of the Privy Council in Bhuboni Sahu v. R. [Bhuboni Sahu v. R., 1949
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SCC OnLine PC 12 : (1948-49) 76 IA 147 : AIR 1949 PC 257] , Periaswami Moopan, In re [Periaswami Moopan, In re, 1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75] as well as in Emperor v. Lalit Mohan Chuckerbutty [Emperor v. Lalit Mohan Chuckerbutty, ILR (1911) 38 Cal 559] , has explicated the efficacy of confession of an accused person and whether it can be used against the co-accused. The exposition in Kashmira Singh [Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ 839] has been approved by the Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar [Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623 : AIR 1964 SC 1184 : (1964) 2 Cri LJ 344] , in particular para 12, which reads thus: (AIR p. 1188) "12. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty [Emperor v. Lalit Mohan
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Chuckerbutty, ILR (1911) 38 Cal 559] a confession can only be used to "lend assurance to other evidence against a co-accused".
In Periaswami Moopan, In re [Periaswami Moopan, In re, 1930 SCC OnLine Mad 86 : ILR (1931) 54 Mad 75] Reilly, J., observed that the provision of Section 30 goes not further than this: (SCC OnLine Mad) '... where there is evidence against the co- accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence.' In Bhuboni Sahu v. R. [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 : AIR 1949 PC 257] the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that: (SCC OnLine PC) '... a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one
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element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.' It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-
accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30.
The same view has been expressed by this Court in Kashmira Singh v. State of M.P. [Kashmira Singh v. State of M.P., (1952) 1 SCC 275] where the decision of the Privy Council in Bhuboni Sahu case [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12] has been cited with approval.
(emphasis supplied)
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131. Further, the judgment rendered by the Hon'ble Apex Court in the case of Pancho v. State of Haryana, reported in (2011) 10 SCC 165, wherein, it has been held at paragraph-27 as under:-
"27. This Court in Haricharan case [AIR 1964 SC 1184 : (1964) 2 Cri LJ 344] further observed that Section 30 merely enables the court to take the confession into account. It is not obligatory on the court to take the confession into account. This Court reiterated that a confession cannot be treated as substantive evidence against a co-accused. Where the prosecution relies upon the confession of one accused against another, the proper approach is to consider the other evidence against such an accused and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused, the court turns to the confession with a view to assuring itself that the conclusion which it is inclined to draw from the other evidence is right."
132. Further, the blood stain materials were recovered but there is no examination to that effect that the blood stain found said to be recovered is of the deceased persons, which is required to be considered before convicting the accused as per the law laid down by the Hon'ble Apex Court in the case of Sattatiya @ Satish Rajanna Vrs. State of Maharashtra (supra), wherein, at paragraph-26, it has been held as under:-
"26. ... ... ... The credibility of the evidence relating to recovery is substantially dented by the fact that even though as per the chemical examiner's report the bloodstains found on the shirt, pants and half blade were those of human blood, the same could not be linked with the blood of the deceased.
Unfortunately, the learned Additional Sessions
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Judge and the High Court overlooked this serious lacuna in the prosecution story and concluded that the presence of human bloodstains on the clothes of the accused and half blade were sufficient to link him with the murder."
133. The Hon'ble Apex Court in catena of decision has propounded the proposition that in the criminal trial, there cannot be any conviction if the charge is not being proved beyond all shadow of doubts, as has been held in the case of Rang Bahadur Singh & Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454, wherein, at paragraph-22, it has been held as under:-
"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."
134. This Court, therefore, is of the view that the judgment of conviction/sentence so far as it relates to appellants, namely, Chendaya Sandi Purty, Karam Singh Purty and Sau Sandi Purty @ Sahu Purty, the same is not sustainable in the eye of law, as such, the judgment of conviction dated 28.04.2017 and order of
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sentence dated 29.04.2017 passed by the learned Additional Sessions Judge-II, West Singhbhum at Chaibasa in Sessions Trial Case No.68 so far as these appellants are concerned, are hereby quashed and set aside.
135. This Court, on the entirety of the facts and circumstances as per the discussion made hereinabove, is of the view that the Cr. Appeal (DB) No.1618 of 2017 pertaining to appellant nos.2 and 3, namely, Pandu Purty and Titu Purty and Cr. Appeal (DB) No.1222 of 2017 pertaining to appellant no.1, namely, Soma Munda @ Doctor, are hereby dismissed and the judgment of conviction dated 28.04.2017 and order of sentence dated 29.04.2017 passed against them, is upheld.
136. Accordingly, the appellant no.1, namely, Chendaya Sandi Purty in Criminal Appeal (DB) No.1618 of 2017 and appellant nos.2 and 3, namely, Karam Singh Purty and Sau Sandi Purty @ Sahu Purty in Criminal Appeal (DB) No.1222 of 2017, are discharged from their criminal liability.
137. In the result, both the appeals are party allowed.
138. Pending Interlocutory applications(s) if any, stands disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Subhash Chand, J.) (Subhash Chand, J.)
High Court of Jharkhand, Ranchi
Dated: 02 August, 2023.
Rohit/-A.F.R.