Jharkhand High Court
Rajesh Choudhary vs State Of Jharkhand on 25 May, 2016
Equivalent citations: 2016 (3) AJR 629, (2016) 3 JLJR 274
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
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Cr. Appeal (D.B.) No. 1269 of 2006
Against the judgment of conviction and order of sentence dated
22.08.2006passed by Addl. Sessions Judge, F.T.C.VI, Dhanbad in Sessions Trial No. 93/2003/137 of 2003.
Rajesh Choudhary, son of Dewan Choudhary, resident of Chinakuri 3 No. P.S. Kulti, District Burdwan (W.B.) ... ... Appellant Versus The State of Jharkhand ... ... Respondent For the Appellant : Mr. Arjun Narayan Deo, Advocate Mr. Rajesh Bhushan, Advocate For the State : Mr. Pankaj Kumar, A.P.P. P R E S E N T HON'BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON'BLE MR. JUSTICE ANANT BIJAY SINGH Per Virender Singh, C.J.
& Anant Bijay Singh, J This appeal has been preferred by the the sole appellant Rajesh Choudhary, being aggrieved and dissatisfied by the judgment of conviction and order of sentence dated 22.08.2006 passed in Sessions Trial No. 93 of 2003/137 of 2003 by Sri Rama Shanker Shukla, learned 6th Additional Sessions Judge (F.T.C.), Dhanbad, whereby and whereunder, the learned Additional Sessions Judge held the appellant Rajesh Choudhary guilty for the charges under Section 364, 302 and 201 of the Indian Penal Code and further on the same date has ordered to go R.I for 10 years for the offence under Section 364 I.PC and further imprisonment for life under Section 302 I.PC and fine of Rs. 1,000/ and further directed to undergo R.I for 3 years for the offence under Section 201 I.PC and in default of payment of fine 2 further R.I for 3 months and all the sentences were ordered to run concurrently.
2. The case of prosecution as unfolded in the written report given by informant, Suraj Chauhan (P.W.8) addressed to officerincharge, Jharia Police Station on 05.10.2002 alleging therein that he is permanent resident of village Ratnuba, P.S. Kutumba, District Aurangabad and at present residing at Victory Colliery, P.S. Jharia, DistrictDhanbad and he had three sons namely, Indran Chauhan, Upendra Chauhan (deceased) and Baliram Chauhan.
3. It is alleged that Upendra Chauhan aged about 19 years is not married. He further alleged that Mishri Lal Malah is the inhabitant of the said village and Rajesh Chaudhary appellant is the soninlaw of Mishri Lal Malah. Rajesh Choudhary had tense relation with the deceased because he had suspicion that Upendra Chauhan(deceased) had illicit relation with his wife for this appellant Rajesh Choudhary threatened Upendra Chauhan(deceased) for dire consequences.
4. He has further alleged that on 05.10.2002 the appellant Rajesh Choudhary came to the house of Mishri Lal Malah at village Victory Colliery and talked with Upendra Chauhan, thereafter Upendra Chauhan and Rajesh Choudhary had gone out of the house and since then they were missing.
5. The informant searched the deceased at the place of his relatives but he could not locate his son. 3
6. In the meantime, one Ramdeni Chauhan (P.W.1) told the informant that on 05.10.2002, the deceased Upendra Chauhan told him that he was going to village Chinakuri along with Rajesh Choudhary without giving any information to others. Ramdeni Chauhan also told him that since there was tension between Upendra and Rajesh Choudhary (appellant), any mishapping may occur, whereupon the informant and family members started searching Rajesh Choudhary.
7. The said Rajesh Choudharyappellant was found at his sasural, on query, he did not disclose anything but apprehension was cast that Rajesh Choudhary might have kidnapped the son of informant for the purpose of murder.
8. On this basis of aforesaid allegations, Jharia P.S. Case No. 330 of 2002 dated 10.10.2002 was instituted for the offence under section 364 of the I.P.C and subsequently, Sections 302/201 were added by the order of learned C.J.M dated 13.10.2002.
9. After investigation, police submitted chargesheet and the case was committed to the Court of Sessions vide order dated 01.02.2003 passed by learned Judicial Magistrate and further charge was framed in this case on 13.03.2003.
10. The prosecution in support of its case examined altogether 15 witnesses. P.W.1 is Ramdeni Chouhan, P.W. 2 is Parmeshwar Pandey, P.W.3 is Indal Chouhan, P.W.4 is Satyendra Chouhan, P.W.5 is Balram Chauhan, P.W. 6 is Ramashish Chauhan, P.W.7 is Nagendra Paswan, P.S.8 is Suraj Chauhan (informant), 4 P.W.9 is Dinesh Kumar Shukla (seizure list witness), P.W.10 is Raju Kumar, (inquest report witness) P.W.11 is Saikat Kumar Dutta, Executive Magistrate, in whose presence dead body of Upendra Chauhandeceased was recovered, P.W.12 is Tanmay Chandra Photographer, P.W.13 is Lagni Devimother of the deceased, P.W.14 is Dr. Tapan Kumar Biswas, who had conducted postmortem examination over the dead body of the deceased and P.W.15 is Rajesh Narain Verma, I.O of the case.
11. As per exhibits, Ext.1 is written report, Ext. 2 is signature of Suraj Chauhan (informant) on investigation report under Section 174 Cr.P.C, Ext. 3 is signature of Dinesh Kumar Shukla on seizure list, Ext. 2/1 is signature of Dinesh Kumar Shukla on Inquest Report, Ext. 2/2 is signature of Raju Kumar on Inquest Report, Ext. 3/1 is signature of Raju Kumar on seizure list, Ext. 4 is order of S.D.M, Asansol No. 1455 dated 16.10.2002, Ext. 2/3 is Inquest Report 'X' for photograph identification 'X' 1 to 'X' 7, Ext. 5 is post mortem report, Ext. 6 is F.I.R, Ext. 7 is formal F.I.R., Ext. 3/2 is Seizure List, Ext. 8 is Statement of Ramdeni Chauhan (P.W.1) u/s 164 Cr.P.C dated 17.10.2002.
12. In order to demolish the case of the prosecution, Mr. Deo the learned counsel for the appellant has vehemently contended that,
(i) P.W1 who happens to be the witness of last seen, in fact, is a procured witness by the first informant who happens to be the father of the deceased and related to P.W1. In fact, 5 whatever he has stated in the Court, it is on account of the tutoring by P.W8, P.W13 and P.W15 (I.O. of the present case). In order to dent the evidence of P.W1, Mr. Deo has also taken us to the crossexamination of this witness where he, in a pertinent question put to him by defence, stated that police had told him as to what he had to say in the court,
(ii) all the P.Ws have stated that the appellant had the strained relationship with the deceased, therefore, it is not possible that at the call of the appellant the deceased had accompanied him to a particular place, that too, to in Mela as stated by P.W1 in his statement before the court,
(iii) It has otherwise come in the evidence that the deceased Upendra Chouhan had left his house of his own and not with the appellant as one finds from the evidence available on record, therefore, the plank of last seen evidence is not proved to the hilt. According to the learned counsel, this missing link in the chain of circumstantial evidence dents the prosecution case to a great extent,
(iv) the First Information Report lodged on 10.10.2002 appears to be a concoction as the police was earlier informed of missing of Upendra Chouhan, (since deceased), by the informant side for the reason that P.W2 in para4 has categorically stated that just 2 days before the missing of Upendra Chouhan, the police was informed of the 6 occurrence. P.W3 and P.W5 have also stated on the same line. Even the brother of first informant and the mother of the deceased rather stated that they had approached the police on 05.10.2002 itself and,
(v) brother of the deceased gone to the extent that they had approached the police on 05.10.2002 itself, the main plank of circumstantial evidence i.e., the confessional statement made by the appellant on which the prosecution is banking heavily also appears to be a crude padding by the police inasmuch as, it was prepared after the deadbody was recovered from the quarters of the appellant, reason being that the First Information Report was dispatched to the Ilaka Magistrate on 11.10.2002 and that till then there was no whisper about suffering of any confessional statement by the appellant. This, in turn, demolishes the vital link in the chain of circumstantial evidence.
13. The Executive Magistrate in whose presence the recovery of the deadbody was shown did not whisper, when stepped into the witness box, that the deadbody was recovered at the instance of the appellant only. Even the inquest report prepared after the recovery of the deadbody is silent about this fact. This all goes to show that all these papers are prepared subsequently by the Investigating Officer after the recovery of the deadbody and this creates a lot of suspicion with regard to this plank of evidence.
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14. Recording of the confessional statement otherwise comes under thick clouds of doubt from the evidence of P.W2 (Para2), P.W4 (Para5) and P.W6 (Para5) wherein, they have stated that Daroga Jee (a word used for the Investigating Officer in common parlance) had told them that the appellant had buried the deadbody in his house just after 2 days of the occurrence and prior to the lodging of the First Information Report.
15. Recovery of hammer allegedly used for killing the deceased at the instance of the appellant is also shrouded under thick clouds of doubt and again appears to be crude padding inasmuch as, the hammer was neither blood stained nor even produced before the court during trial or before the doctor who had conducted the postmortem in order to obtain opinion with regard to the injury on the person of the deceased. The number as mentioned in the postmortem report indicates as if it relates to one case being Kulti P.S. Case No. 5 of 2002 dated 10.10.2002 whereas, the present case relates to Jharia P.S. Case No. 330 of 2002. The postmortem is done with reference to the aforesaid case of P.S. Kulti and not with regard to the present case, what exactly the said case is never brought before the trial court and this also creates a lot of doubt.
16. Confessional statement which is alleged to have been recorded by P.W15, the Investigating Officer of the present case, was not brought on record and exhibited during the trial. The statement which led to the recovery of the deadbody is also not 8 proved on file during the trial and in absence thereof, the evidence of recovery of the deadbody washes away.
17. The other major defect apparent on record is that the incriminating evidence with regard to disclosure statement by the appellant which led to the recovery of the deadbody was never put to him when he was examined under Section 313 Cr.P.C. This fundamental lacuna cannot be filled up by the prosecution at this belated stage.
18. The investigation conducted in this case appears to be totally perfunctory because the Investigating Officer did not bother to record the statement of wife of the appellant, motherinlaw of the appellant, parents of the appellant or the witnesses in whose presence the deadbody was recovered whereas, in the close vicinity of the place of occurrence, many independent persons were available.
19. All these weaknesses in the case of the prosecution, if taken collectively, disprove the charge of murder against the appellant. In support of is submissions, Mr. Deo relying upon the judgment in "Sangli @ Sanganathan Vs. State of Tamil Nadu"
reported in [2014 (4) East Cr C 234 (SC)];
"A. Penal Code, 1860, Section 302Conviction Sustainability of Deceased high school going childP.W5 another young girl also student of same school where deceased was studyingAppellant worked for father of P.W.5Confessional statement of appellant led to certain 9 recoveriesHe led to the spot from where dead body of deceased was recoveredProsecution case based on circumstantial evidenceMotive of the crime not establishedNo legally admissible evidence on record to come to conclusion that deceased left his house after being called by the appellantRecoveries of blood knife and bicycle on basis of confessional statement made by the appellant doubtfulBesides recoveries no other evidence and no other circumstances worth name proved against the appellantAppellant roped with suspicion that it was a case of triangular loveEvidence of last seen also not established No evidence to show that deceased left his house after receiving phone call from the appellantChain of events not establishedNot safe to record finding of guilt of appellantConviction and sentence set aside.
(B) Criminal TrialRecoveriesDiscovery a very weak type of evidenceRecoveries create suspicionSuspicion however strongCannot be substantive proof. (C) Criminal TrialCircumstantial evidenceCompete chain of events required to be established pointing out at the culpability of the accusedNo other conclusion except guilt of the accused should be discernible without any doubt."10
submitted that the case of the appellant is fairly covered by the law laid down by the Hon'ble Supreme Court in "Sangli @ Sanganathan" (supra) case in as much as in the instant Criminal Appeal the case of prosecution is based on circumstantial evidence but chain of circumstances is not complete pointing only towards the guilt of the accused as the prosecution during course of trial has not brought on record confessional statement given by the appellant leading to recovery of the aforesaid dead body.
20. It was submitted that as the chain of circumstances is not complete, the appellant is entitled to be acquitted of the charge. Learned counsel for the appellant relied on the judgment in case "Sujit Biswas Vs. State of Assam" reported in [2014 (1) East Cr C 266 (SC)] wherein it is held "A. Criminal Trial EvidenceSuspicion however grave cannot take place of proofmental distance between 'may be' and 'must be' quite largeSuch distance required to be covered by way of clear, cogent and unimpeachable evidence before an accused is condemned as a convict Benefit of doubt must be given to accused keeping in mind that a reasonable doubt is not an imaginary trivial or merely a probable doubt based on reason and common sense.
C. Criminal Procedure Code, 1973, Section 313 Examination of accusedMeant to meet requirements of 11 two principles of natural justice i.e audi alterum partemAccused to be asked to furnish explanation with regard to incriminatingcircumstances associated with himCircumstances not put to him in his Section 313 Cr.P.C examinationCannot be used against him. E. Criminal TrialFIRInformant being a person claiming to be in know of the fact and closely related to the victimExpected of him to mention all relevant facts in the FIROmission of important facts affecting probability of the caseRelevant factor under Section 11 of the Evidence Act."
and submitted that however, strong the suspicion may be, it cannot take place of proving the case of the accused guilty. The prosecution has to prove its charge beyond reasonable doubt.
21. It is further submitted that the informant in his written report has not made disclosure in as much as the son of informant was missing from 05.10.2002.
22. Per contra, Mr. Pankaj Kumar, learned A.P.P supporting the impugned judgment of conviction and sentence, submitted that in this case the prosecution is banking upon two main circumstances viz, the last seen evidence - when the deceased and the appellant were seen together by P.W1 and the recovery of the deadbody at the instance of the appellant in presence of the Executive Magistrate, that too, from his own quarters where the deadbody was buried and digged out subsequently. The learned 12 A.P.P further referred to evidence of P.W.1, Ramdeni Choudhan whose statement under Section 164 Cr.P.C was recorded who during course of evidence has categorically stated that on 05.10.2002 Upendra Chouhan (deceased) was along with Rajesh Choudhary and was going to village Chinakuri, where his dead body was recovered. This fact has also been corroborated by P.W.8informant in his written report. (Ext. 1). Learned A.PP also referred to the evidence of P.W.2, Parmeshwar Pandey, P.W.3 Indal Chauhan, who in para 1 have also supported this fact. It is further submitted that these witnesses have stated the fact that Ramdeni Chauhan P.W.1 has disclosed that Upendra Chauhan (deceased) on 05.10.2002 had gone with Rajesh Choudhary to his house Chinakuri.
23. It is further submitted by learned A.P.P that on the basis of these evidences Upendra Chauhan(deceased) was last seen with the appellantRajesh Choudhary. P.W.5 Balram Chauhan and P.W.6 Ramashish Chauhan who in para 1 have also supported this fact that Ramdeni Chauhan P.W.1 has disclosed that Upendra Chauhan (deceased) had gone with Rajesh Choudhary to his house Chinakuri. Learned A.P.P further referred to evidence of P.W.11, Saikat Kumar Dutta, Executive Magistrate who has stated that on 05.10.2002, he was posted as Executive Magistrate at Asansol and for compliance of order of S.D.M (Ext.4) he along with officerincharge of Niyamatpur Police Station and Kulti Police Station had gone to Chinakuri, Kulti Police Station to the 13 quarter of Dewan Choudhary, who is none else but the father of the Rajesh Choudhary (appellant). He has stated that from the courtyard of the aforesaid quarter one dead body was recovered and inquest report was prepared in presence of S.I. Rajesh Narayan Verma of Jharia P.S. and also the witnesses Dinesh Kumar Shukla, Rajesh Kumar, Parimal Chatterjee S.I of Niyamatpur were also present there. P.W.8informant was also present at that time who put his signature on the inquest report. He has further stated that dead body was recovered from the earth which was buried four feet (4') beneath the surface and photographs were also taken by that time. He thus submitted that the case of the prosecution is proved to the hilt against the appellant, therefore, his conviction as recorded by the learned trial court deserves to be upheld.
24. After rescanning the entire prosecution evidences, we are of the view that the appellant is the perpetrator of the crime.
25. P.W.12 Tanmay Chandra, who is photographer stated that on the request of Niyamatpur police he went at Chinakuri to take photograph where he took seven to eight photographs where dead body was recovered. These photographs were marked as X1 to X7 for the purpose of identification in this case.
26. P.W.14 Dr. Tapan Kumar Biswas, who held the post mortem examination, found the following :(i)Decomposed body maggots crawling all over the body. Deep wound 4" in length right Side the skull bone. Fracture skull bone. He has stated in his 14 opinion that the death was due to injuries described inflicted during life. He has proved the carbon copy of the postmortem report which was prepared and signed by him and same has been marked Ext. (5) with objection. In his crossexamination, he has stated that from the very beginning he was a pathologist. He has stated that organs of the body after opening of the body he found all the organs were decomposed. Rigor mortis found absent. He, however, has not mentioned the time elapsed since death in postmortem report which aspect would not be that relevant.
27. P.W. 15 is Rajesh Narain Verma who is the Investigating Officer of the case, in in examinationinchief has stated that on 10.10.2002 he was posted at Jharia Police Station. He proved the endorsement made by the officerincharge of Jharia Police Station on the written report of the informant regarding register of the case and same has been marked as Ext. 6. He has also proved the formal F.I.R which has been marked as Ext. 7. He has stated that during investigation, he inspected the place of occurrence and arrested the accused and recorded his confessional statement and thereafter he proceeded to recover the dead body of the deceased at Niyamatpur P.S. Kulti along with informant and his son. He has stated that a magistrate was deputed for the purpose of recovery of the dead body on the request of the local police. Sri Saikat Kumar Dutta, Executive Magistrate, Officerincharge of Kulti P.S and Niyamatpur P.S and photographer Tanmai Chandra, police force, informant, his son and the accused Rajesh Choudhary 15 went there and on the order of the magistrate they dug the place on pointing out of the accused and the dead body of the deceased Upendra Chauhan was recovered from the water tank. Dead body of the deceased was identified by Suraj Chauhan, father of the deceased. He has also recovered Chadar and hammer from the courtyard of the house. He has prepared seizure list in respect of the aforesaid articles in presence of two independent witnesses and the same has been marked as Ext. 3/2. He has also identified the photographs which were taken during the time of recovery of the dead body which was recovered on the pursuance of the disclosure made by the accused and the same have already been marked as 'X' 1 to 'X' 7.
28. According to P.W. 15, the first place of occurrence is the house of the informant, Suraj Chauhan which is B.C.C.L quarter located at victory Colliery, P.S. Jharia, DistrictDhanbad and the second place of the occurrence is Chinakuri 3 no., Mandirpara, P.S. Kulti, District Bardwan which is the house of Dewan Choudhary the father of Rajesh Choudhary (appellant) and the same is located facing towards western side and it is E.C.L quarter. There is one room about 10' long where in south eastern side a chowki was kept on which Upendra Chauhan (deceased) had slept. He has stated that an old water tank (Saira) is located on the eastern, western corner of the courtyard of the house from where the dead body of the deceased was recovered. The said water tank was plastered by cement and it was covered 16 by bricks and sands.
29. In view of aforesaid evidences available on record and the fact that the dead body was recovered from the courtyard of quarter No. 3 situated at Chinakuri belonging to the father of the appellant only Section 106 of the Indian Evidence Act would be attracted. It reads : "106. Burden of proving fact especially within knowledge.When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
Recovery of the dead body being the incriminating circumstance was put to the appellant under Section 313 statement in which he has not given any explanation as to how dead body was found and recovered from the house belonging to his father in which the appellant was in exclusive possession. This main circumstance speaks volumes of the complicity of the appellant in the 17 commission of the offence.
30. So far the judgment relied upon by the counsel for the appellant in "Sujit Biswas Vs. State of Assam" (Supra) is concerned, it is distinguished on the facts of the instant case, in as much as, the case relied upon by the appellant only confessional statement of the appellant leading recovery was not proved but in the instant case also the confessional statement of the appellant leading recovery of the dead body from the house of the exclusive possession of the father of the appellant situated at Chinakuri, P.S. Kulti has not been brought on record, however the dead body of the deceased was recovered in the presence of Executive Magistrate (P.W.11)by the order of S.D.M., Asansol. Executive Magistrate also corroborated the fact that the dead body was recovered in his presence and in presence of appellant. So keeping this fact also and the fact that in terms of section 106 of the Evidence Act, recovery of dead body was within the knowledge of the appellant but despite the question put under Section 313 Cr.P.C, no explanation is coming, the aforesaid judgment would not be applicable in this case. Thus, we are of the considered opinion that prosecution has been able to prove its case to the hilt based on following chain of circumstances:
(i) On 05.10.2002 Upendra Chauhan (deceased), son of informant had gone along with Rajesh Chaudhary (appellant) to village Chinakuri.
(ii) Ramdeni Chauhan, (P.W.1) had seen Upendra Chauhan 18 (deceased) who was going to village Chinakuri with the accused Rajesh Choudhary and told this fact to Suraj Chauhan (P.W.8), the informant.
(iii) Other witnesses like P.W2, P.W3, P.W.5, P.W.6 have also supported the fact that Ramdeni Chauhan (P.W.1)disclosed this fact that Upendra Chauhan(deceased) went along with accused Rajesh Choudhary to village Chinakuri.
(iv) In statement under Section 164 of the Cr.P.C, the said Ramdeni Chauhan admitted this fact. Other witnesses have also stated that Ramdeni Chauhan disclosed the fact to them.
(v) On the confession made by the appellant, P.W.15I.O. along with P.W.8 had gone to village Niyamatpur, P.S. Kulti with local police and a magistrate was deputed and in his presence dead body was recovered from quarter no. 3, the house belonging to the father of the appellant, it was in decomposed position, P.W.8informant identified the dead body.
(vi) The investigating officerP.W.15 recovered hammer from the place of occurrence which was used for killing the deceased.
(vii) The doctor (P.W.14) in postmortem examination held that the deceased received injuries on his person. (viii) These circumstance were put to the accused under Section 313 Cr.P.C but no explanation has been given how dead 19 body was recovered from the house belonging to the house of the father of the appellant.
31. Taking all these circumstances together after testing them on the settled principles of appreciation of circumstantial evidence, we are of the considered view that prosecution have been able to prove its case beyond reasonable doubt and the Trial Court has rightly convicted the appellant guilty. We find no merit in the instant appeal and accordingly, the same is hereby dismissed. Judgment of conviction and order of sentence dated 22.08.2006 passed by the Trial Court is affirmed.
(Virender Singh, C.J.) (Anant Bijay Singh, J.) High Court of Jharkhand, Ranchi Dated 25/05/2016 Satyarthi/NAFR