Jharkhand High Court
Baiju Kumar Soni & Anr vs State Of Jharkhand on 14 July, 2017
Equivalent citations: 2018 (3) AJR 337, (2017) 4 JLJR 226 (2017) 3 CRIMES 235, (2017) 3 CRIMES 235
Author: H.C. Mishra
Bench: H.C. Mishra, Ratnaker Bhengra
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal No.887 of 2009
(Against the Judgment of conviction dated 17.4.2009 and Order of sentence
dated 20.4.2009, passed by learned 2 nd Additional Sessions Judge, Hazaribagh,
in S.T. No.238 of 2006)
1. Baiju Kumar Soni
2. Jugnu Karmali ....... Appellants
-Versus -
The State of Jharkhand ..... Respondent
PRESENT
HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE RATNAKER BHENGRA
-----
For the Appellants : Mr. Arwind Kumar, Advocate
Mr. Pankaj Kumar Dubey, Advocate
For the State : Mr. Sanjay Kumar Srivastava, APP
C.A.V. on : 21.06.2017 Pronounced on : 14.07.2017
H.C. Mishra, J.:- Heard learned counsel for the appellants and learned counsel for the
State.
2. The appellants are aggrieved by the Judgment of conviction dated
17.4.2009and Order of sentence dated 20.4.2009, passed by the learned 2nd Additional Sessions Judge, Hazaribagh, in S.T. No.238 of 2006, whereby both these appellants have been found guilty and convicted for the offences under Sections 364-A, 302, 201 / 34 of the Indian Penal Code, and upon hearing on the point of sentence, the appellants were sentenced to undergo R.I. for 10 years each for the offence under Section 364-A of the Indian Penal Code and R.I. for life each for the offence under Sections 302 / 34 of the Indian Penal Code. No separate sentence, however, was passed for the offence under Sections 201 / 34 of the Indian Penal Code. Both the sentences were directed to run concurrently.
3. According to the prosecution story, the case relates to kidnapping and murder of a girl child aged about 3½ years, who went missing on 8.1.2006 while she was playing in front of her house. The written information about the missing of the child was given by her father, namely, Anil Prasad Soni, on 13.1.2006, before the Officer-in-charge of Bhurkunda Police Station, in which, it was stated that his daughter Muskan, aged about 3½ years, was playing outside her house 2 on 8.1.2006, when she became traceless. On 9.1.2006, the missing report about the girl was given in the Police Station, on the basis of which sanha entry No.142 of 2006 was made. On 8th and 9th January 2006, the informant had searched his daughter and had also announced about her getting traceless on loudspeaker, but his daughter could not be traced. On 11.1.2006, at about 12:36 hours, a call was received on his mobile phone from Ramgarh STD booth, from which, one unknown person threatened him that his brother was getting smart for which the informant has to pay the price. The caller stated that his daughter would reach him by the evening, but asked him not to inform the administration. On 12.1.2006, at about 13:35 hours, again a call was made from the STD booth, but it was the missed call. Thereafter, another call was received on the mobile phone of Uday Soni, who is the brother of the informant, and the caller threatened his brother and stated that he had kidnapped his niece. When they were asked about the proof of the fact that the child was in their captivity, the caller informed that they would get the proof on the roof of the Temple nearby their house. Thereupon, the informant and his brother went to the Temple and found a polybag, in which a torn cloth and slippers of the girl were found. A threatening letter was also found in the bag. The informant and his brother kept waiting for the caller, but neither the caller came nor the daughter of the informant was returned. The informant gave the written information stating the aforesaid facts and suspected that his neighbour Ashok might have committed the offence due to some enmity. On the basis of the written report, Patratu (Bhurkunda) P.S. Case No.11 of 2006, corresponding to G.R. No.138 of 2006 was instituted for the offence under Sections 364 and 365 of the Indian Penal Code against the said Ashok and his family members. Subsequently, the dead body of the deceased child was found in a dam and accordingly, Sections 302 and 201 of the Indian Penal Code were also added.
4. During the course of investigation, the police, on the basis of secret information, apprehended the appellant Baiju Kumar Soni, who confessed his guilt and on the basis of his confessional statement, from the house of the appellant Jugnu Karmali, the scarf of the deceased girl was recovered. On the 3 basis of confessional statement of accused Baiju Kumar Soni, one drawing copy was also recovered from his house, on which, his name was written, as it had been confessed that the threatening letters were written, tearing the pages from the said drawing book. From near a quarter, where the girl was allegedly kept, wrappers of five star chocolate and bread were also recovered on the basis of the said confessional statement. Accordingly, on completion of the investigation, the police submitted the charge-sheet against these accused persons.
5. It may be stated at this place that the dead body of an unknown girl child was recovered in a rexene bag, from a dam situated under Khelari Police Station, on 18.1.2006, for which, Khelari P.S. Case No.10 of 2006 was instituted against unknown. Subsequently, the dead body was identified by the parents of the deceased, to be that of the missing girl Muskan.
6. After commitment of the case to the Court of Session, the charges were framed against both the accused persons for the offences under Sections 364-A / 34, 302 / 34 and 201 / 34 of the Indian Penal Code and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, the prosecution has examined 13 witness in the case, but there are only circumstantial evidence against the accused persons.
7. PW-10 Anil Prasad Soni, is the informant and the father of the deceased girl. This witness has stated that on 8.1.2006, his daughter Muskan aged about 3 to 3½ years had gone for playing outside the house and she became traceless. As that was a market day, the girl was searched under the impression that she might have been lost. The child could not be traced. Thereafter, announcements were made through loudspeaker also and on 9.1.2006, a missing report about the girl was given in the Police Station, and the search was continued, but the girl could not be traced. On 11.1.2006, at about 12:36 PM, an unknown person made a call on his mobile asking him not to inform the administration and he informed that his daughter Muskan was with him. He said that his brother was acting very smart, his daughter would reach him by evening, but his brother shall have to pay price for that. They waited for the caller to come, but on 12.1.2006, at about 1:35 PM, again the same person gave a missed call and thereafter, 4 again he made a call on the phone of his brother Uday Soni, threatening him and informing that his niece had been kidnapped by the caller. Upon asking about the proof thereof, the caller informed that the proof could be found on the roof of the Temple near the house. Thereafter, they went to the Temple and they found a polythene bag, in which, one red top of his daughter and slippers were found. A threatening letter was also found in the said bag. Thereafter on 13.1.2006, the written information was given in the police station and those articles were produced. The informant has identified the written report to be in the writing of one Girish Mishra, which was written as instructed by the informant and he had put his signature thereon. He has identified the written report, which was marked as Exhibit-6. He has also stated that at the Police Station, paper about the produced articles (cloth, slippers and the letter) was prepared, on which he had also put his signature. On his identification, his signature on the production-cum- seizure list was marked Exhibit 1/11. This witness has further stated that on 18.1.2006 at about 10:00 to 11:00 PM in the night, the Police Officer from Bhurkunda Thana informed that under Khelari police station, one dead body of a girl child was found. On 19.1.2006, they went to Khelari in the morning and saw the dead body at the Police Station, which was the dead body of his daughter, which he identified. A rexene bag was also there and it was informed that the dead body was found in that bag. He brought the dead body from the Police Station and cremated the dead body. This witness has stated that in the meantime he used to get the calls giving threatening and demanding ransom of rupees two lacs. The threatening letters were also received. The threatening letters and the receipts of STD booth were also produced before the police on 24.2.2006 and production-cum-seizure list was prepared in presence of the witnesses, on which, this witness had also put his signature and he had identified it. This witness has also stated that on 22.3.2002, he along with his wife, were called to Patratu Block for taking part in TIP and they identified the scarf of their daughter, which had been recovered on the basis of the confessional statement of the accused persons. This witness has identified both the accused persons in the Court. In course of his cross examination, this witness has stated that both 5 the accused persons are the residents of the same locality. He has stated in his cross-examination, that he had no enmity with these accused persons before the occurrence and he had not seen the occurrence. He has stated that he had identified the dead body of his daughter from her face and cloths.
8. PW-4 Uday Prasad Soni is the brother of the informant, who has also supported the prosecution case that his niece went missing on 8.1. 2006 and she was murdered. He has also stated about the phone calls received by him and his brother has also stated about the efforts being made to search out the girl. This witness has stated that on 12.1.2006, he received a call on his mobile, in which he was threatened and he was informed that his niece had been kidnapped. When this witness asked the proof thereof, the caller informed that they would get the proof at the Temple near the house. He was also threatened not to inform the police. Thereafter, they went to the Temple and found a polythene bag, in which, one cloth and slippers of her niece were there and one threatening letter was also there, and all these were handed over to the police. On 18.1.2006, one Police Officer came and informed that a dead body of a girl child was found at Khelari and in the next morning, this witness along with his brother and other family members went to Khelari and identified the dead body of his niece. They brought the dead body and performed the last rites. This witness has also identified both the accused persons in the Court.
9. PW-6 Ragini Devi, is the mother of the deceased and she has also supported the prosecution case as stated above. She had also seen the dead body of her daughter and had identified her. She had also identified the scarf of her daughter in the TIP, which was recovered from the house of the accused. She has also identified the accused persons in the Court. In her cross- examination, she has stated that both these accused persons were of the same locality and they had no suspicion upon them as the relationship between them was not bad.
10. PW-1 Ashok Kumar is the friend of the informant, who has also supported the prosecution case and he has also stated about the efforts of searching of the victim girl after she went missing. This witness has also stated about the 6 recovery of the cloths, slippers and the letter of threatening from the Temple after the phone call received by the brother of the informant and has stated that all these things were produced before the police on 13.1.2006 and the seizure list was prepared, on which, this witness had also put his signature. This witness is also the witness of other seizure lists prepared by the police on 24.2.2006 and on 19.1.2006 relating to the bag, in which, the dead body was found and on his identification, his signatures were marked as Exhibits-1 series on the seizure lists. He was present at the time of identification of the dead body and he has stated about the preparation of the document about the dead body on which also, he had put his signature. This witness has identified the STD booth bills and the threatening letters which were found and produced before the police, which were marked material Exhibits-I & II respectively. He has also identified the accused persons in the Court. PW-2 Jhunu Dubey and PW-3 Rajesh are also the witnesses to the seizure lists.
11. PW-5 is Uttam Kr. Kharbar, who has stated that the daughter of the informant went missing on 8.1.2006 and she could not be traced, even after searching. He has stated that on 9.1.2006, he was going on a train from Bhurkunda, when he had seen both the accused Baiju and Jugnu along with a rexene bag and they detrained at Khelari. He has stated that it was the same bag, which was recovered by the Khelari police with the dead body.
12. PW-7 Vikash Kumar is the STD booth owner. He has identified the two bills of telephone, which were prepared through machine at his STD booth, which were earlier marked material Exhibit-I. He has stated that these bills were of 12th January 2006 of making the calls on the mobile phones, numbers of which, he has given in his evidence. He has identified both the accused persons in Court and stated that both these accused persons had gone to his STD booth on 12.1.2006 and asked him to get out of the booth as they had to make some emergency calls. Thereafter, both these accused persons made the calls, paid the bill and went away.
13. PW-8 Bodhan Baitha is the S.I. of police, who at the relevant time, was posted at Khelari police station. He has stated that on 18.1.2006, he was 7 informed that in Gouri dam, dead body of a girl child had been recovered in a rexene bag. On getting the information, he went to the place of occurrence, where several persons were there. He recorded the fardbeyan of one Tulsi Munda at Gauri Dam and prepared inquest report of the dead body found in the rexene bag. He sent the dead body for post-mortem examination. He has given the details of the place of occurrence, where the bag was found. He has stated that there was a rope around the neck of the dead body and blood was oozing out of the nose. He stated that he was informed that at Bhurkunda, a girl had gone missing, whereupon, he contacted the Officer in-charge of Bhurkunda Police Station, who informed that a girl of same features was missing and he informed that he shall send the family members for identification of the dead body. He has identified the photo copy of the inquest report prepared by him, which was marked X/1 for identification. He has also identified the fardbeyan, which was marked Exhibit-2 and the endorsement on the fardbeyan, which was marked Exhbit-2/1. This witness has identified the production-cum-seizure list prepared on 19.1.2006, which related to the bag recovered from the dam, one frock and one panty, which was marked Exhibit-3. He has stated that he received the post-mortem report of the deceased, which was also handed over to the Officer-in-charge of the Bhurkunda Police Station. He has proved the jimmanama, by which the dead body was given to the father of the deceased for cremation and the same was marked Exhibit-4.
14. PW-9 Shyamadhar Roy, is the constable and a formal witness, who has produced the material exhibits in the Court, which were slippers of the deceased, cloths, drawing copy on which the name of Baiju Kumar was written, a rexene bag and the panty of the girl and these materials were marked material Exhibits-III to IX in the Court.
15. PW-11 is Sita Ram Das, who is the S.I. of police and at the relevant time, he was posted at Bhurkunda police station. He has proved the endorsement on the written report received by him on 13.1.2006, on the basis of which, Patratu P.S. Case No.11 of 2006 was instituted and he has also proved the formal FIR, which were marked Exhibit 6/1 and 7 respectively. He has stated that he was 8 handed over the charge of investigation and he had prepared the production- cum-seizure list of slippers, one threatening letter and one red top of a girl, which he has identified and same was marked as Exhibit-8. On 19.1.2006, he was informed that the dead body of a girl child was found in Gouri Dam under Khelari Police Station and the dead body had been sent for post-mortem examination. This information was given to the father of the child. He has identified the production-cum-seizure list prepared on 19.1.2006, which was earlier marked Exhibit-3. This witness has stated that on 25.2.2006, on the basis of a secret information, he arrested the accused Baiju Kumar Soni and on the basis of his confessional statement, he recovered an old scarf from the house of the accused Jugnu and he prepared the seizure list in presence of the witnesses, which he had identified and the same was marked as Exhibit-8 / 1. From the house of Baiju Kumar Soni, one drawing copy on which the name of Baiju Kumar Soni was written, was recovered and seizure list was prepared, which he had proved and the same was marked as Exhibit 8/2. Upon the information given by the accused Baiju Kumar Soni, from near a rented quarter, he recovered one wrapper of five star chocolate and a wrapper of bread and seizure list was prepared, which he had proved and marked Exhibit-8/3. On 25.2.2006, bills of STD booth of Vikash Kumar, were also produced and the seizure list were prepared, which he had proved. He stated that he received the post-mortem report of the dead body of the deceased on 2.3.2006. Scarf, which was recovered from the house of the accused, was sent for T.I. parade to the BDO, Patratu, and the T.I. parade was held on 22.3.2006, in which, the scarf was identified by the mother of the deceased. He has stated that after completing the investigation, he submitted the charge-sheet.
16. PW-12 Udai Pratap Singh is also a Police Officer, who has also identified the written report, and FIR of this case and has stated about the sanha entry about the missing of the girl and the production of the threatening letter, cloth and slippers of the girl. He has also stated that on 19.1.2006, upon the information about the recovery of the dead body, he had taken the father of the deceased and another persons to Khelari Police Station, where the father of the deceased 9 identified the dead body of his daughter. One rexene bag in which the dead body was recovered and cloths of the deceased were also found there, which were seized by preparing production-cum-seizure list, which he had identified, which was earlier marked as exhibit-3. He has also stated about the arrests of the accused persons and had identified the accused persons in the Court.
17. PW-13 Nand Kishore Lal was the BDO, before whom, the TIP of the scarf was made and he has stated that scarf was identified by the father and mother of the deceased. He has proved the T.I. Chart, which was marked Exhibit-9.
18. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Court below are absolutely illegal, in as much as, the prosecution has failed to bring home the charge against the appellants beyond all reasonable doubts. It is stated that there is practically no evidence against the appellants, except the fact that on the basis of the confessional statement of one of the appellant, some recoveries were made. Learned counsel has submitted that there is no eyewitness of either of the kidnapping, or of committing of the murder of the deceased girl and there is nothing on the record to indicate the role of the appellants in the offence. Learned counsel submitted that the case is full of missing links and chain of circumstances are not so complete so as to point only towards the guilt of the accused appellants, and practically this is a case of no evidence against the accused appellants. Learned counsel submitted that in any event, this is a case, in which, the appellants were entitled at least to the benefits of doubt.
19. Learned counsel for the State on the other hand opposed the prayer and has submitted that the prosecution has been able to bring home the charge against the appellants beyond all reasonable doubts. It has been submitted that the post-mortem report of the deceased showed that the death was caused due to strangulation and the rope was also found tied on the neck of the deceased. The dead body of the deceased had been identified by the father and the family members of the deceased. It has also been submitted that the calls were made by these appellants from the STD booth of PW-7 Vikash Kumar, who has identified both these accused persons to have made the calls from his booth and 10 has also proved the telephone bills, for the calls made by these appellants, with the time tallying when the calls were received by the informant and his brother. It is submitted that on the basis of the confessional statement of the appellant Baiju Kumar Soni, the scarf of the deceased girl was found from the house of Jugnu Karmali and the drawing copy, from which, the pages were torn for writing the threatening letters, were also recovered from the house of the appellant Baiju Kumar Soni, and these are the conclusive proofs, on the basis of which, the prosecution has been able to bring home the charges against the appellants beyond all reasonable doubts. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence.
20. Having heard learned counsels for both the sides and upon going through the record, we find that the victim girl went missing from her house on 8.1.2006, whose dead body was found in a bag in a dam on 18.1.2006. Until then, the implication of the appellants could not be traced. It was only on 25.2.2006, when the accused Baiju Kumar Soni was apprehended by the police, on the basis of some secret information, as deposed by PW-11 Sita Ram Das, the I.O. of the case, that the involvement of the accused appellants came to light. His confessional statement was recorded, which led to the recovery of the scarf of the deceased girl from the house of the accused Jugnu Karmali and this scarf was identified in TIP by the parents of the deceased. From the house of the accused Baiju Kumar Soni, drawing books have been recovered with pages torn, on which, the threatening letters were written and the same were also recovered, produced and proved, and these are the material exhibits in the case. Recoveries of the wrappers of the chocolate and bread from near the house, where the child was allegedly kept, are additional links to show that the child was kept there, but the recovery of the scarf of the deceased and the recovery of the drawing book, pages of which were used for writing threatening letters, on the basis of the confessional statement of the accused, and the recovery of the threatening letters written on the torn pages of the same drawing book, in our considered view, are sufficient to prove the prosecution case beyond all reasonable doubts that the deceased girl was kidnapped by these appellants, 11 whose dead body was recovered from a dam under Khelari police station, concealed in a rexene bag, which was also recovered. PW-5 Uttam Kumar Kharbar had seen the accused appellants with the same bag on the train and had also seen them detraining from the train at Khelari station. In our considered view, the prosecution has been able to prove the prosecution case beyond all reasonable doubts that these appellants had kidnapped the girl child and had committed her murder and had thrown the dead body concealed in a bag, in the dam, thus, bring home the charges against the accused appellants for the offences under Sections 364-A, 302 / 34, 201 / 34 of the Indian Penal Code, beyond all reasonable doubts.
21. As such, we do not find any illegality in the impugned Judgment of conviction dated 17.4.2009 and Order of sentence dated 20.4.2009, passed by learned 2nd Additional Sessions Judge, Hazaribagh, in S.T. No.238 of 2006, which, we hereby, affirm. The appellants are in custody and serving out the sentence passed by the Trial Court below.
22. We do not find any merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Record be sent back forthwith along with the copy of this Judgment.
(H.C. Mishra, J.) Ratnaker Bhengra, J.:-
(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated The 14th of July, 2017. R. Kumar/NAFR