Jharkhand High Court
Pradeep Manjhi @ Yadav vs The State Of Jharkhand on 11 April, 2022
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 1116 of 2018
with
Criminal Appeal (DB) No. 1077 of 2018
with
Criminal Appeal (DB) No. 1395 of 2018
with
Criminal Appeal (DB) No. 574 of 2019
(Against the judgment of conviction dated 30th August 2018 and the order of sentence
dated 7th September 2018 passed by the learned Additional Sessions Judge-1 st, Dumka in
Sessions Trial Case No. 26 of 2011)
In Criminal Appeal (DB) No. 1116 of 2018:
Pradeep Manjhi @ Yadav, son of Laddu Manjhi, resident of Village
Picchidahawa, PO & PS Shrawan, District Deoghar .... ..... Appellant
In Criminal Appeal (DB) No. 1077 of 2018:
Raju Khan @ Firoz Khan, son of Ahmad Ali @ Ahmad Ansari, resident of
Village Mohanpur, Malakhdhara, PO & PS Mahagama, District Godda,
Jharkhand .... ..... Appellant
In Criminal Appeal (DB) No. 1395 of 2018:
Pintu Kumar Sah, son of Suresh Prasad, resident of Dangalpara, PO & PS
Dumka (T), District Dumka .... ..... Appellant
In Criminal Appeal (DB) No. 574 of 2019:
Ashok Singh, son of Late Ramnawal Singh, resident of Village Fatehpur,
PO & PS Sampatyak, District Patna (Bihar) .... ..... Appellant
Versus
The State of Jharkhand ... .... Respondent
[In all cases]
(Heard on 13th, 14th and 15th December 2021)
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
-------
For the Appellant(s) : Mr. A.K. Kashyap, Sr. Advocate
[In Cr. A. (DB) No. 1116 of 2018]
Mr. Madan Prasad, Advocate
[In Cr. A. (DB) No. 1077 of 2018]
Mr. Ashok Kumar Sinha No.4, Advocate
[In Cr. A. (DB) No. 1395 of 2018]
Mr. Md. Zaid Ahmed, Advocate
[In Cr. A. (DB) No. 574 of 2019]
For the State : Mrs. Priya Shreshtha, Spl.PP
[In all cases]
2 Cr. Appeal (DB) No. 1116 of 2018 and analogous cases
JUDGMENT
CAV on 15th December 2021 Pronounced on 11th April 2022 Per, Shree Chandrashekhar, J.
The convicts have filed these criminal appeals under section 374(2) of the Code of Criminal Procedure challenging the judgment dated 30th August 2018 and the order of sentence dated 07 th September 2018 passed in Sessions Trial Case No. 26 of 2011.
2. In Sessions Trial Case No. 26 of 2011, Pradeep Manjhi @ Yadav, Ashok Singh, Raju Khan @ Firoz Khan and Pintu Kumar Sah are convicted and sentenced to RI for life and fine of Rs.5000/- each under section 364 read with section 120-B of the Indian Penal Code; RI for life and fine of Rs.5000/- each under section 302 read with section 120-B of the Indian Penal Code; RI for 10 years and fine of Rs.5000/- each under section 394 read with section 120-B of the Indian Penal Code and; RI for 3 years and fine of Rs.1000/- each under section 201 of the Indian Penal Code. The aforesaid sentences are with default stipulations on each count that the convicts shall undergo SI for 3 months.
3. Devendra Prasad Yadav who was the owner of Bolero vehicle bearing Registration No. JH 04C 6468 gave an information to the Dumka (Town) PS on 22nd July 2010 that Sujit Mirdha the driver of Bolero vehicle who had left for Asansol with two persons on 20 th July 2010 did not come back home till the next day. He however did not follow up the matter with the police and what step was taken by the police is not known though a sanha was registered in the police station.
4. The dead body of one unknown male person lying in an open field at Salanpur in the district of Burdwan (West Bengal) was reported to the police by Swapan Kumar Dawn on 21st July, 2010 at 08:35 AM and on that basis Salanpur UD Case No. 19 of 2010 was registered which was later on renumbered as Salanpur PS Case No. 63 of 2010.
5. Dr. Sati Nath Banerjee who was posted at District Hospital, Asansol conducted postmortem examination on the dead body of an unidentified male on 21st July 2010 at 12:30 PM and found the following injuries:
3 Cr. Appeal (DB) No. 1116 of 2018 and analogous cases
(i) Cut throat injury function of upper & middle part of neck.
Incised wound 20 cm x 8 cm x vertbra deep from left side of trachea to posterior border of right sternomastoid.
(ii) Linnear bruise ½ cm x 12 cm left side of neck horizontal."
6. On 07th August 2010, Devendra Prasad Yadav gave a written report to the officer-in-charge of Dumka (Town) PS and on that basis Dumka (Town) PS Case No. 121 of 2010 was registered against unknown.
7. In the wee hours of 22nd August 2010, around 04:30 AM, Pradeep Manjhi and Pintu Kumar Sah who were travelling on a truck with Kamlesh Kumar Raut were quizzed by the police at a police post near Masalia More, Dumka. Two mobile phones were found in possession of Pradeep Manjhi who could not give a satisfactory explanation about the possession of the mobile phones. One of the mobile phones which Pradeep Manjhi was carrying was purchased by the informant for his driver Sujit Mirdha. On suspicion, Pradeep Manjhi was arrested by the police and he suffered a confessional statement before the investigating officer that Ashok Singh, Raju Khan and Pintu Kumar Sah were the other accused who were involved in the theft of Bolero and murder of Sujit Mirdha. Pintu Kumar Sah who was travelling in the same truck with Pradeep Manjhi also gave his confessional statement before Shailesh Prasad who was posted as Sub Inspector of Police at Dumka (Town) PS.
8. The stolen Bolero was recovered from village-Mohanpur, Masjid Mohalla, Thana-Mahagama, District-Godda where the accused themselves led the police. The seizure memo of Bolero was prepared in the presence of Md. Kamal Ansari and Munna Yadav. In his statement before the police, Md. Kamal Ansari stated that Firoz Khan and Suman provided Bolero to him for running on hire basis on the condition that he would pay them rent for the vehicle.
9. On 22nd August 2010, the wife and father of Sujit Mirdha were called at Dumka (Town) PS to identify the vehicle and they were shown the accused who were kept in hazat of the police station.
10. Eighteen witnesses were examined by the prosecution to prove the charges under sections 302/34, 201/34, 120-B, 394, 364 and 411 of the Indian Penal Code. According to the prosecution, PW2, PW3, PW5, PW6 and PW12 are the witnesses who had seen Sujit Mirdha in the company of 4 Cr. Appeal (DB) No. 1116 of 2018 and analogous cases unknown persons on 20th July 2010 at different places but except PW2 no witness identified the appellants in the Court as those persons who were talking to Sujit Mirdha at Dumka Bus Stand or were accompanying him in Bolero at Dudhwa More. PW10 is the wife and PW11 is the father of Sujit Mirdha who on the call of Dumka (Town) Police had gone to Dumka (Town) PS and identified the unidentified dead person through photographs and the clothes. PW14 is the investigating officer of Salanpur PS Case No. 63 of 2010 and PW16 is the doctor who conducted the postmortem examination over the dead body of an unidentified person who was later on identified by PW10 and PW11. PW15 is the Judicial Magistrate who recorded the statement of PW17 Md. Kamal Ansari under section 164 of the Code of Criminal Procedure. PW17 is the witness to seizure of Bolero but in the trial he did not support the prosecution and was declared hostile.
11. On behalf of the prosecution, written report, TIP chart of Bolero vehicle, seizure lists, confessional statements of Pradeep Manjhi and Raju Khan, sketch map of the place of occurrence, postmortem report and statements of Kamlesh Kumar Raut and Md. Kamal Ansari recorded under section 164 of the Code of Criminal Procedure were proved in the trial. The Bolero vehicle and two mobile phones were also produced in the Court as material exhibits to establish complicity of the accused in the crime.
12. The learned Sessions Judge held that on the ground that PW3, PW5, PW12, PW13 and PW17 have turned hostile the prosecution case cannot be disbelieved. The learned Sessions Judge further held that the prosecution proved that Nokia Mobile model No. 2626F IMEI No. 359335021410557 was purchased by PW1 from Suman Telecom, Deoghar, the original purchase receipt of which was available on record. The learned Sessions Judge placed reliance on the evidence of PW1, PW2, PW6, PW10 and PW11 and held that the chain of circumstances was not broken and recovery of Bolero vehicle and mobile phone vide Exhibit-5 clearly establish complicity of the appellants in the murder of Sujit Mirdha.
13. In the aforesaid background, we shall now see what the witnesses have spoken in the Court and whether on the basis of the incidence tendered by them the conviction of the appellants can be sustained.
5 Cr. Appeal (DB) No. 1116 of 2018 and analogous cases
14. PW1 is informant of the case who deposed in the Court that around 07:40 PM on 20th July, 2010 Sujit Mirdha called him and informed that he was going to Asansol with two persons who had hired the vehicle. He tried to contact Sujit Mirdha next day morning but his mobile phone was switched off. He gave a written report to the police when Sujit Mirdha did not return till the evening of 22nd July 2010. For the next 8-10 days when no trace of Sujit Mirdha and the vehicle could be found he provided papers of the vehicle to the police. He further stated that on 21 st August 2010 the vehicle was recovered from the house of Raju Khan and that the accused confessed that they had killed the driver. He identified Pradeep Manjhi and Ashok Singh in the dock but could not identify the third person who was produced in the Court whether he was Pintu Kumar Sah or Raju Khan but claimed that he can identify the fourth person.
15. In the cross-examination, PW1 admitted that the accused were not known to him and he did not go to jail for their identification. He further stated that on 21st August 2010 the officer-in-charge called him and he accompanied him to Mahagama from where Bolero was recovered next day morning from the house of Raju Khan. He identified the vehicle at Dumka (Town) PS after about two months and at that time there was only one Bolero parked there which belonged to him and that the seizure memo was prepared at Mahagama police station. He said that he had no previous acquaintances with Pradeep Manjhi and he could know about him when the officer-in-charge told him about him.
16. In his re-examination on recall, PW1 stated that he went to the police station on 03rd November 2010 for TIP of the vehicle and there identified his vehicle on the basis of tyre, seat cover, number and registration number of the vehicle engraved over the front windshield. He identified the photographs of Sujit Mirdha which was marked 'X' for identification. He further stated that on 25th August 2010 he reached Salanpur police station at around 04:00 PM-04:30 PM where photographs were taken of the place of occurrence. He denied the suggestion that there was only one vehicle in Test Identification Parade and said that there were 5-6 Bolero and 10-15 trucks in the police station and the officer-in-charge, BDO and others were present at the time of TIP.
6 Cr. Appeal (DB) No. 1116 of 2018 and analogous cases
17. On 11th September 2017, PW1 was again recalled for re-examination for production of the Bolero vehicle bearing Registration No. JH 04C 6468 which was marked as material Exhibit-(I) on his identification but, in the cross-examination, PW1 stated that the vehicle was not registered for commercial purposes and he never plied his vehicle on hire.
18. According to PW2, he was at Dumka bus stand on 20th July 2010 around 12:00 noon and saw Bolero vehicle bearing Registration No. JH 04C 6468 parked there. At that time, two persons came and negotiated with Sujit Mirdha fare for hiring Bolero for going to Asansol. He claimed in the Court that Sujit Mirdha told him that those two persons were going to Asansol for buying spare parts and that he would come back by the evening. He further stated that among those two persons who seemed to him known faces one was fair-complexioned and the other who was dark-complexioned was a truck driver. He identified Pradeep Manjhi and Ashok Singh in the Court and said that he had seen them talking to Sujit Mirdha at Dumka bus stand. He denied in the cross-examination that the owner of the vehicle was known to him. He further denied that he knew the name of the two persons who were talking to Sujit Mirdha but claimed that he can recognize them by face. He further said that after about one month he was called at the police station where his statement was recorded by the police.
19. PW3 stated in the Court that he saw 4-5 persons at Dumka bus stand discussing about hiring of a vehicle for going to Asansol and later on he came to know that someone had hired one vehicle for Asansol. But he was declared hostile at the instance of the prosecution when he said in the Court that he did not know the driver of the vehicle. In the cross-examination by the prosecution, PW3 denied that one of the two persons whom he had seen at the bus stand was familiar to him. He further denied that he knew the accused who were present in the dock.
20. PW4 who was the Block Development Officer was called for TIP of Bolero on 03rd November 2010. He deposed in the Court that he conducted TIP in connection to Dumka (Town) PS Case No. 121 of 2010 dated 07th August 2010. According to him, nine vehicles were lined with one Bolero in the Dumka (Town) PS and PW1 and PW8 identified the Bolero 7 Cr. Appeal (DB) No. 1116 of 2018 and analogous cases vehicle with Registration No. JH 04C 6468 on the basis of colour, model, fittings, seat cover, steering cover and marks on the chassis body and wind screen of the vehicle. He identified his signature on TIP chart and testified that the witnesses put their signature in his presence. In the cross-examination, PW4 stated that the investigating officer and the witnesses were present in the police station at the time of test identification.
21. PW5 did not support the prosecution in the Court and stated that his statement was not taken by the investigating officer. He denied his statement made before the investigating officer that on 20th July 2010 around 01:30 PM he had a talk with Sujit Mirdha who was accompanied by four persons in the Bolero bearing registration No. JH 04C 6468. He further denied that Sujit Mirdha told him that he was going to Asansol with those persons and he would come back by the evening.
22. PW6 is a driver by profession and a friend of Sujit Mirdha. On 20th July 2010, he was returning from Asansol and he met Sujit Mirdha on Parso Road around 04:30 PM. At that time, Sujit Mirdha was driving Bolero towards Asansol and since they were known to each other Sujit Mirdha stopped near Dudhwa More and they had a brief chat. According to PW6, three persons were sitting in Bolero one of whom was on the front seat with the driver. PW6 further says that Sujit Mirdha informed him that he was going to Asansol and would come back by the evening but 2-3 days thereafter he got information that Sujit Mirdha did not return home. In the cross-examination by defence, he declined that the accused who were present in the Court were the passengers accompanying Sujit Mirdha in the truck. He further deposed in the Court that on account of lapse of time he could not recognize the persons who were sitting in Bolero with Sujit Mirdha on 20th July 2010.
23. PW7 is the owner of the truck which was being driven by Pradeep Manjhi when he was stopped by the police at Masalia More on 22nd August 2010. According to the prosecution, PW7 is a witness to the seizure of mobile phones from the possession of Pradeep Manjhi but in his evidence PW7 did not depose about the seizure of mobile phones.
24. PW8 is a friend of PW1 who is the owner of Bolero. He deposed in the Court that Sujit Mirdha gave information to PW1 about two persons hiring Bolero at Dumka bus stand for going to Asansol. He further 8 Cr. Appeal (DB) No. 1116 of 2018 and analogous cases stated that Sujit Mirdha informed PW1 that two more persons had boarded Bolero for going to Asansol and that he would come back same day by the evening. He accompanied PW1 to Dumka (Town) PS on 22 nd July 2010 and in his presence a complaint was lodged. On 03 rd November 2010, he was called for TIP of the vehicle in which he identified Bolero belonging to PW1.
25. From a glance at the aforesaid evidence, it becomes clear that there is no witness to the murder of Sujit Mirdha. In the Court, no witness identified the appellants as the persons who were with Sujit Mirdha on Bolero going towards Asansol on 20 th July 2010 nor did any witness claim that he saw the appellants boarding Bolero at Dumka bus stand and moving towards Asansol with Sujit Mirdha.
26. In a case based on circumstantial evidence, the circumstances on the basis of which the conclusion of guilt is to be drawn must be fully established. The incriminating circumstances should be of conclusive nature and exclude all possible hypothesis except the one which must unerringly establish that it was the accused who committed the crime.
27. In "Gambhir v. State of Maharashtra"1, the Hon'ble Supreme Court has observed as under:
"9. ...... When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In the light of the legal position about the circumstantial evidence, we have to examine whether the circumstantial evidence in the instant case satisfies the requirements of law. The circumstantial evidence in the instant case may be broadly classified into three parts: (1) oral evidence to prove that in the absence of Namdeo, the accused used to visit the house of Laxmi regularly and he was seen in the evening of February 26, 1975 in the company of Laxmi and her children. He was also seen at about 10.00 p.m. the same night in the company of Laxmi under a neem tree in the village. At midnight he was again seen going along the way near the house of Babulal, (2) the various recoveries most of them at the instance of the accused, and (3) medical evidence."
1 (1982) 2 SCC 351 9 Cr. Appeal (DB) No. 1116 of 2018 and analogous cases
28. The law on the subject has remained the same as observed in "Gambhir"1. Even a quarter century thereafter, in "Sukhram v. State of Maharashtra"2 the Hon'ble Supreme Court has held that the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but all the circumstances so established should be of conclusive nature and consistent with the hypothesis of the guilt of the accused.
29. PW2, PW3, PW5, PW6 and PW12 informed the investigating officer that they saw Sujit Mirdha in the company of unidentified persons but except PW2 who identified two of the appellants in the Court other witnesses did not support the prosecution and were declared hostile in the trial. PW2 identified Pradeep Manjhi and Ashok Singh in the Court as the persons who were speaking to Sujit Mirdha at Dumka bus stand for hiring Bolero. His evidence is to the effect that he saw two persons one dark-complexioned and the other fair-complexioned talking to Sujit Mirdha at Dumka bus stand for hiring Bolero. In the cross-examination, he stated that his statement was recorded by the police about one month after the occurrence. He further stated that he was called at the police station where his statement was recorded by the police. This is the only evidence against Pradeep Manjhi and Ashok Singh on the point of last seen together with Sujit Mirdha.
30. The circumstance of last seen together is not always incriminating to the accused and in every case possibility of a casual or accidental meeting of the accused with the deceased must be ruled out before an adverse inference against the accused is sought to be raised. There are well measured and tested norms to examine efficacy and applicability of the last seen together theory. In "Bodhraj alias Bodha & Ors. v. State of J&K"3 the Hon'ble Supreme Court applied "proximity test" to hold that where the time gap between the point of time when the victim was last seen alive with the accused and when he was found dead is so small that chances of any person other than the accused committing the crime becomes remote, the last seen theory would provide credible incriminating evidence against the accused. Still, the accused cannot be convicted on the basis of merely last seen evidence unless the prosecution establishes that there are other independent incriminating circumstances available on record which the 2 (2007) 7 SCC 502 3 (2002) 8 SCC 45 10 Cr. Appeal (DB) No. 1116 of 2018 and analogous cases accused has failed to explain satisfactorily and all taken together complete the chain of circumstances to draw a conclusive inference that the accused is guilty.
31. In "Kanhaiya Lal v. State of Rajasthan"4 the Hon'ble Supreme Court has observed as under:
"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non- explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."
32. The next circumstance put forth by the prosecution is recovery of Bolero at the pointing of the appellants. According to the prosecution, Bolero belonging to PW1 was found near the house of PW17 who is a seizure witness. In the Court, PW17 did not support seizure of Bolero in his presence and stated that the police obtained his signature on blank papers. Munna Yadav is the another witness who put his signature over the memo evidencing seizure of Bolero but he was not produced as a witness during the trial. Contrary to the statement of PW17 before the police, PW1 stated in the Court that Bolero was recovered on 21 st August 2010 from the house of Raju Khan @ Firoz Khan.
33. We further find that PW1 stated in the Court that in TIP only one Bolero which belonged to him was brought for identification. In paragraph no.37 of the cross-examination, he has however stated that 5-6 Bolero were parked all over the police station. PW4 who conducted TIP stated in the Court that altogether 9 Bolero were parked in the police station for TIP which was conducted in presence of Ujjwal Sen and Damodar Ruj but these witnesses were not brought in the Court for cross-examination. PW4 stated in the Court that on 03 rd November 2010 TIP of Bolero was conducted in which Devendra Prasad Yadav (PW1) and Parmeshwar Kapri (PW8) identified the vehicle. However, PW8 who is another witness stated in the Court that he was called for TIP on 03 rd November 2010 in which 2-3 Bolero of different colours were brought for identification. We further take note of the stand taken by the appellants that chassis number and engine number of Bolero identified by PW1 were tempered which is evident on a mere look at the seizure memo of silver colour Mahindra Bolero vehicle.
4 (2014) 4 SCC 715 11 Cr. Appeal (DB) No. 1116 of 2018 and analogous cases PW9, in his cross-examination stated that engine number and chassis number of Bolero vehicle were not given by PW1 in the Sanha report.
34. In our opinion, recovery of Bolero from the possession of Firoz Khan is not proved by the prosecution and TIP conducted for identification of Bolero cannot be used even for corroboration on account of the aforesaid infirmities in holding TIP. The evidences tendered by PW1, PW4 and PW8 are quite inconsistent and the worth of evidence on TIP of Bolero would diminish significantly because PW1 was shown the vehicle in the police station on 22nd August 2010.
35. According to the prosecution, Sujit Mirdha spoke to PW1 from his mobile phone carrying SIM number 9661486805 but no SIM card was recovered and the investigating officer did not make any inquiry as regards in whose name SIM card number 9661486805 was issued. Another SIM card which was used carried the number 9006812381 but in this regard also no investigation was carried and CDRs of both SIM cards which could have established talk between PW1 and Sujit Mirdha were not obtained in course of the investigation. PW9 is the first investigating officer of the case. In his cross-examination, PW9 admitted that he did not record model and company number of the mobile phones recovered from the possession of Pradeep Manjhi; did not verify SIM cards of the mobile phone and that mobile phone was not registered in the name of the deceased. The mobile phone which was the looted article vide Material Exhibit-(II) was not sealed as per the evidence of PW9 and PW18. In the cross-examination, PW18 stated that no case number was given on the material exhibit and it did not bear any signature. PW7 is the seizure witness who did not depose in the Court as regards seizure of mobile phone. Kangress Kumar Mandal is another witness who signed the memo evidencing seizure of mobile phones from the possession of Pradeep Manjhi but he was not examined as a witness in the trial.
36. The Court can convict an accused on the basis of his disclosure statement and the recovery of inculpatory materials pursuant thereto. But mere recovery of stolen articles from the possession of the accused would not prove that the accused is guilty of the offence of murder. Furthermore, before a finding of guilt is recorded against the accused the Court must record a finding that the recovery of stolen/robbed material(s) is proved by 12 Cr. Appeal (DB) No. 1116 of 2018 and analogous cases unimpeachable evidence and the recovery is not surrounded with any element of doubt. In "Tulsiram Kanu v. State"5 the Supreme Court indicated that the presumption permitted to be drawn under section 114 Illustration(a) of the Indian Evidence Act has to be drawn under the important time factor and if a long period has expired in the interval when in the inculpatory material was found in possession of the accused and the murder the presumption as to complicity of the accused in the murder cannot be drawn.
37. We may further indicate that belated recovery of the stolen articles raises a question about their intrinsic evidentiary value. In "Vijay Thakur v. State of H.P."6 a newly purchased maruti van was hired by the accused. Alongwith the driver one of his friends accompanied him with the accused and thereafter both of them were found missing. The Hon'ble Supreme Court set aside conviction of the accused observing as under:
"18. It is to be emphasised at this stage that except the so-called recoveries, there is no other circumstances worth the name which has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. Insofar as these two appellants are concerned, there is no circumstance attributed except that they were with Rajinder Thakur till Sainj and the alleged disclosure leading to recoveries, which appears to be doubtful. When we look into all these facts in entirety in the aforesaid context, we find that not only the chain of events is incomplete, it becomes somewhat difficult to convict the appellant only on the basis of the aforesaid recoveries."
38. Even so, the recovery of mobile phone purchased by PW1 which according to the prosecution was used by Sujit Mirdha from the possession of Pradeep Manjhi may be on account of various possibilities and only on that basis the accused cannot be convicted for murder of Sujit Mirdha. The prosecution has laid in evidence the confessional statements of Pradeep Manjhi @ Yadav and Raju Khan @ Firoz Khan to prove complicity of all four appellants but the same cannot be used against them to convict them. There is no other evidence against Pintu Kumar Sah and Ashok Singh even to infer their complicity in the crime.
39. There is another aspect of the matter which raises serious questions on the veracity of the prosecution case. The identification of the dead body by clothes, photographs etc. is permissible in law provided the 5 AIR 1954 SC 1 6 (2014) 14 SCC 609 13 Cr. Appeal (DB) No. 1116 of 2018 and analogous cases evidence in this regard is clinching and inspires confidence of the Court. PW10 deposed in the Court that the police called her at Dumka (Town) PS and informed that her husband has been killed. At that time, the accused were in the police station who according to the police had killed her husband. Next day, she along with her father-in-law were taken to the place where the dead body of her husband was found. She admitted in her cross-examination that she had no previous acquaintance with the accused and that her husband had no enmity with the accused or any other person. On identification of the dead body, at the end of the paragraph no. 1 of her examination-in-chief, PW10 has stated that the Bengal police had shown photographs of the dead body of her husband and the clothes.
40. PW11 deposed in the Court that about one month after his son had gone missing the police brought him and his wife alongwith PW1 to the police station where he found that one Bolero was parked in the campus of Dumka (Town) PS. At that time, the police told them that the accused who were kept in the confinement in the police station had killed his son. In the examination-in-chief, PW11 has also made a statement that the Bengal police showed him the clothes and photographs of his son which were taken after his murder. He has also admitted in the cross-examination that the accused were not known to him previously and he saw them for the first time in the police station and that his son had no enmity with any other person.
41. PW16 who had conducted autopsy over the dead body of an unknown male on 21st July 2010 deposed in the Court that later on the dead person was identified as Sujit Mirdha as per letter dated 21 st September 2010 of Salanpur PS. In the cross-examination, the doctor admitted that name of Sujit Mirdha was subsequently recorded in the postmortem report. The doctor has further admitted that at the time when the dead body was brought before him no clothes were on the dead body and therefore the relevant column in the postmortem report was crossed by him. In the end of the cross-examination, PW16 again reaffirm that at the instance of Salanpur police he has recorded name of the deceased in the postmortem report later on.
42. The aforesaid evidence produced by the prosecution to prove that Sujit Mirdha died a homicidal death is not supported by any other 14 Cr. Appeal (DB) No. 1116 of 2018 and analogous cases corroborative evidence. It is permissible in law to prosecute an accused even though the dead body has not been recovered but in the absence of corpus delicti what the Court looks for is the clinching evidence. If the prosecution is successful in proving by cogent and satisfactory proof that the victim met a homicidal death, absence of corpus delicti will not by itself be fatal to a charge of murder. In Salanpur PS Case No. 63 of 2010, blood sample, hair and finger print of the unknown male deceased were collected and preserved by the autopsy surgeon at Asansol S.D. Hospital but the serological report produced by the prosecution does not throw any light on the present issue. In the present case, except one sentence in their examination-in-chief, PW10 and PW11 have not said anything about identification of the dead body. The other evidence sought to be proved by the prosecution is confessional statement of the appellants which is wholly inadmissible in evidence as no part of the confessional statements of the appellants is saved by section 27 of the Indian Evidence Act.
43. In our opinion, the prosecution evidence is most wanting on identification of the dead body and merely because Bolero vehicle was parked near the house of PW17 who said in his statement before the police that Firoz Khan and Suman (who was not examined in the trial) handed over the vehicle to him for running on rent, the appellants cannot be convicted for committing murder of Sujit Mirdha.
44. On the basis of the aforesaid discussions, we hold that the prosecution evidence which contains more chaff than grain is not sufficient to hold the appellants guilty for the charges framed against them in Sessions Trial Case No. 26 of 2011 and, accordingly, their conviction and sentence under sections 364/120-B, 302/120-B, 394/120-B and 201 of the Indian Penal Code are set-aside.
45. The appellants, namely, Pradeep Manjhi @ Yadav [in Criminal Appeal (DB) No. 1116 of 2018], Raju Khan @ Firoz Khan [in Criminal Appeal (DB) No. 1077 of 2018] and Pintu Kumar Sah [in Criminal Appeal (DB) No. 1395 of 2018] are in custody and Ashok Singh [in Criminal Appeal (DB) No. 574 of 2019] is on bail.
46. Accordingly, the appellants, namely, Pradeep Manjhi @ Yadav [in Criminal Appeal (DB) No. 1116 of 2018], Raju Khan @ Firoz Khan [in Criminal Appeal (DB) No. 1077 of 2018] and Pintu Kumar Sah [in Criminal 15 Cr. Appeal (DB) No. 1116 of 2018 and analogous cases Appeal (DB) No. 1395 of 2018] shall be set free forthwith, if not wanted in connection to any other case and the appellant, namely, Ashok Singh [in Criminal Appeal (DB) No. 574 of 2019] is discharged of liability of the bail-bonds furnished by him.
47. Criminal Appeal (DB) No. 1116 of 2018, Criminal Appeal (DB) No. 1077 of 2018, Criminal Appeal (DB) No. 1395 of 2018 and Criminal Appeal (DB) No. 574 of 2019 are allowed.
48. Let the lower Court records be transmitted to the Court concerned, forthwith.
49. Let a copy of the Judgment be transmitted to the Court concerned through FAX.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 11th April 2022 Sharda-S.B/RKM/Tanuj N.A.F.R