Jharkhand High Court
Against Judgment And Order Of ... vs The State Of Jharkhand on 10 June, 2022
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Rajesh Kumar
Cr. Appeal (D.B.) No. 46 of 2015
[Against judgment and order of conviction and sentence dated
20.12.2014 (sentence passed on 22.12.2014) passed by Sri Krishna
Kumar, learned Judicial Commissioner-IV, Ranchi in Sessions Trial
No. 467/2013, arising out of Doranda P.S. Case No. 266/2012, corre-
sponding to G.R. Case No. 3218/2012]
...........
Pinku Ram, S/o Late Raju Ram, R/o village- Karbala Tank Road, Gudari Muhala, P.O. & P.S.- Lower Bazar, Dist- Ranchi, Jharkhand ... ... Appellant Versus The State of Jharkhand ... ... Respondent ...........
For the Appellant : Mr. A.K. Chaturvedy, Advocate
For the State : Mr. Saket Kumar, A.P.P.
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE RAJESH KUMAR ...........
10/10.06.2022 Heard Mr. A.K. Chaturvedy, learned counsel for the appellant and Mr. Saket Kumar, learned A.P.P. for the State.
2. This appeal is directed against the judgment and order of conviction and sentence dated 20.12.2014 (sentence passed on 22.12.2014) passed by Sri Krishna Kumar, learned Judicial Commissioner-IV, Ranchi in Sessions Trial No. 467/2013, arising out of Doranda P.S. Case No. 266/2012, corresponding to G.R. Case No. 3218/2012, whereby and whereunder the appellant has been convicted for the offence u/s 302 of the Indian Penal Code and has been sentenced to undergo R.I. for life along with a fine of Rs. 5,000/- and in default of payment of fine he has to undergo S.I. for 06 months.
3. A First Information Report was instituted by Viraj Kachhap wherein it has been stated that on 08.06.2012 at about 6:30 A.M. his nephew Markus Sunwar had come to his house and informed that the sister of the informant Namita Arya has been murdered near her hostel at South Office Para. On such information when he and Markus Sunwar went to South Office Para they saw his sister lying on the road on her stomach and there were several injuries on her neck caused by sharp cutting weapon. Her bag was lying besides her. In the palm of
-2- Cr. Appeal (D.B.) No. 46 of 2015 both her hands were tufts of hair. It has been stated that his sister was staying at Sharma Girls Hostel for the last one year. She used to do the job of cooking and stayed at the Hostel. Her husband used to live separately for the last 2-2½ years and had solemnized another marriage since he had a suspicion about an illicit affair between his sister and Pinku Ram (appellant). It has been alleged that Pinku wanted to marry the sister of the informant but she was not agreeable. In the previous evening his sister had come to his house and she had returned to the hostel with a boy named Sonu. On the date of occurrence, she was to go to Patna to attend a marriage ceremony with Markus and she had called Markus to South Office Para but when he reached she was found lying dead in the road. Suspicion has been raised against Sonu and Pinku of committing the murder.
Based on the aforesaid allegations Doranda P.S. Case No. 266/2012 was instituted for the offence u/s 302/34 of the I.P.C. against unknown accused. On conclusion of investigation charge-sheet was submitted u/s 302 of the I.P.C. against Pinku Ram and after cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 467/2013. Charge was framed against the sole accused for the offence u/s 302 of the I.P.C. and the contents of the charge was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.
4. In course of trial the prosecution has examined as many as six witnesses in support of its case.
5. P.W.1 (Rina Devi) has deposed that the incident is of 08.06.2012 in the morning at about 6:00 A.M. Her sister Namita Arya was married but Pinku Ram used to harass her. Pinku Ram used to visit the matrimonial house of her sister and pressurized her to solemnize marriage with her and when she objected she was threatened. On account of the acts of Pinku Ram her husband had deserted her. She has deposed that on the date of
-3- Cr. Appeal (D.B.) No. 46 of 2015 occurrence her sister was going to Patna when she was murdered by Pinku Ram with a sharp cutting weapon. She has proved the photographs of the deceased as well as the accused and her family which have been marked as 'X' to X/6 for identification. At the time of the incident, she was at her house. She was informed about the occurrence by her younger brother Viraj Kachhap and when she immediately rushed to the place of occurrence she found her sister lying dead on the road.
In her cross-examination, she has stated that she has not witnessed the occurrence. In the night prior to the incident Sonu had come to meet her sister. Sonu is also known as Markus. Her sister was to go to Patna with Markus who works in the Police Department.
6. P.W.2 (Veena Tigga) is the elder sister of the deceased Namita Arya. She has deposed that Pinku Ram used to regularly visit the house of her sister as a result of which her husband had left her. Pinku Ram was pressurizing her to solemnize marriage with him. Her sister had two children but Pinku Ram was not agreeable to accept them. This incident happened in her presence for which this witness and Pinku Ram had an altercation which however was pacified by her brother. After a week when she went to meet her sister in the hostel her sister disclosed that Pinku Ram regularly calls her over phone. After two days she came to know that Pinku Ram was objecting to her meeting Namita Arya and due to fear this witness stopped meeting her sister. She has stated that the deceased was to go to Patna with Markus to attend a weeding but in the meantime she was murdered.
In her cross-examination, she has deposed that at the time of the incident she was at her house. The walking distance between her house and the place of occurrence is about half an hour. On 07.06.2012 her sister was taken to the house of Viraj Kachhap by Markus @ Sonu and the deceased had also
-4- Cr. Appeal (D.B.) No. 46 of 2015 returned with him. She has added that Sonu @ Markus works in the Police Department and is the nephew of this witness.
7. P.W.3 (Biraj Kachhap) is the informant who has deposed that on 08.06.2012 in between 7-7:30 A.M. his nephew Markus had come and disclosed that somebody has slit the throat of his sister Namita Arya. About a day prior to the incident Namita Arya had come to his house along with Markus. He had taken the name of Pinku Ram and Sonu before the Police as he suspected both of them in the murder. He has stated that at that point of time he was not aware that the other name of Markus is Sonu. The written report is in the handwriting of the brother of his brother-in-law in which this witness had signed and which has been marked as Exhibit-1 with objection.
In his cross-examination, he has deposed that within 15 minutes of his coming to know about the incident, he had reached the place of occurrence. Since Pinku Ram used to converse with his sister due to suspicion her husband had left her. He has stated that on 07.06.2012 in the evening Markus @ Sonu had brought Namita to the house of this witness. Thereafter she was left at her hostel by Markus. On 08.06.2012 Markus was to take his sister to Patna. When Markus reached the place of occurrence he found her dead. He has also stated that Markus works in the Police department.
8. P.W.4 (Bhola Ram) was posted at Doranda P.S. on 30.09.2012 and he was given the charge of investigation into Doranda P.S. Case No. 66/2012. He has proved the endorsement of the Officer-in-Charge over the written report which has been marked as Exhibit-2. He has proved the formal FIR which has been marked as Exhibit-3. After taking over investigation he had inspected the place of occurrence which is near a girls hostel situated at South Office Para. The dead body of Namita Arya was found in the metalled road between the house of Sunil Saraf and Narayan Saraf. From the place of occurrence a mobile of Nokia
-5- Cr. Appeal (D.B.) No. 46 of 2015 company, some hairs strewn in the road, some hairs in the fists of the deceased, one bag and a money bag were recovered. A seizure list was prepared which has been proved and marked as Exhibit-4. He has also proved the inquest report which has been marked as Exhibit-5 with objection. He had recorded the statements of the sisters of the deceased namely Rina Devi and Veena Tigga in the place of occurrence itself. He had thereafter gone to Sharma Girls Hostel where he had recorded the statements of Rita Toppo and the gatekeeper Keshav Puran. The statements of these two witnesses were also got recorded u/s 164 Cr.P.C. He had thereafter obtained the CDR and it was found that the deceased and Pinku Ram used to regularly converse. He has proved the CDR which has been marked as Exhibit-6 with objection.
In his cross-examination, he has deposed that in Exhibit-6 there was no certification by any authority on the pages. He had not recorded the statements of seizure list witnesses Anant Kumar Sunwar as well as Sunil and Narayan Saraf. The seized hairs were not sent to the FSL. He had not seized blood stained earth or cloth from the place of occurrence. In course of investigation he had not collected the sample of hair of the accused for sending it to the FSL.
He has stated that the witness Rina Devi had not disclosed before him that Pinku Ram used to threaten the deceased for her refusal to solemnize marriage with him. She had also not stated about Pinku Ram committing the murder of her sister.
The witness Veena Tigga had not disclosed before him that the accused used to go to the hostel of her sister with the proposal of marriage. She had also not told that she had gone to meet her sister in the hostel and the accused had threatened her. He had not carried out any investigation on Sonu as a written application was given by the informant that there is no one called Sonu and his nephew is called Markus though Namita
-6- Cr. Appeal (D.B.) No. 46 of 2015 used to call him Sonu.
9. P.W.5 (Rita Toppo) has deposed that on the date of the incident Namita had disclosed that she was going to the Temple with her parents-in-law as it was the birthday of her daughter. Later on she came to know that Namita has been murdered. She was acquainted with Namita because both worked together. She was introduced by Namita to Pinku Ram with whom she was to solemnize marriage. She has deposed that Pinku Ram and Namita used to talk over phone and Pinku Ram also used to call this witness sometimes. Later on the relationship between Pinku Ram and Namita became strained. Namita refused to solemnize marriage though this witness used to advise her as per the dictates of Pinku Ram. Namita had never introduced this witness to Pinku Ram in person.
In her cross-examination, she has denied of having any knowledge about the occurrence.
10. P.W.6 (Dr. Ajit Kumar Choudhary) was posted as Professor and Head of the Department FMT, RIMS Ranchi on 08.06.2012 and on the same day he had conducted autopsy on the dead body of Namita Arya and had found the following:
i) 10 x 1 cm x bone deep on right neck lateral side upper part cutting the soft tissues and blood vessals and seemed survical vertebra partly.
ii) 5 x 1 cm into soft tissues on back of neck middle part.
iii) 5 x 1 cm x soft tissues over right occipital scalp.
iv) 2 x 1 cm x soft tissue on top of right shoulder.
v) 4 x ½ cm x soft tissues on back of side of neck lower part.
vi) 5 x 1 cm x bone deep on left sculptor in upper part cutting the underline bone partially.
vii) 3 x 1 cm x bone deep on right thumb lower part cutting the soft tissues and underline bone.
viii) 2 x 1 cm x bone deep back of right middle finger cutting the underline bone.
-7- Cr. Appeal (D.B.) No. 46 of 2015
ix) 9 x 1 cm x bone deep on left fronto partial region cutting the underline bone.
x) 6 x 1 cm x soft tissues on left parietal region of head.
xi) 6 x 1 cm x bone deep on left temporal partial region cutting the underline bone.
xii) 5 x 1 cm x bone deep on right parieto occipital region of head.
The cause of death was opined to be due to the above noted injuries. He has proved the postmortem report which has been marked as Exhibit-7. The signature of this witness and of Seema Kumari in the postmortem report has been proved and marked as Exhibit-7 and 7/1 respectively.
11. The statement of the accused was recorded u/s 313 Cr.P.C. in which he has denied his involvement in the incident.
12. It has been submitted by Mr. A.K. Chaturvedy, learned counsel for the appellant that there are no eye-witnesses to the occurrence. The circumstantial evidence which has formed the basis for conviction of the appellant is non-existent. Even if it is assumed that the appellant was pressurizing the deceased to solemnize marriage with him as per the evidence of some of the witnesses but such assumption in absence of any cogent material to that respect according to the learned counsel for the appellant would not lead to conviction of the appellant.
13. Mr. Saket Kumar, learned A.P.P. has pointedly referred to the evidences of P.W.1, P.W.2 and P.W.3 while submitting that all have consistently stated about the appellant pestering the deceased with an intent to solemnize marriage and also of extending threats. There are strong circumstances which indicate the consequent act of the appellant in doing away with the life of Namita Arya.
14. We have given our anxious consideration to the submissions advanced by the learned counsels for the respective sides and have also gone through the Lower Court
-8- Cr. Appeal (D.B.) No. 46 of 2015 Records.
15. In this case admittedly there are no eye- witnesses to the occurrence and the entire case of the prosecution is based upon circumstantial evidence. From the evidence of P.W.1, P.W.2, P.W.3 and P.W.5 the common thread which binds their deposition before court and which formed the suspicion against the appellant is of the appellant having a love affair with the deceased Namita Arya. P.W.1, P.W.2 and P.W.3 who are the sisters and brother of the deceased have also stated about the husband of the deceased deserting her as he suspected his wife of having an illicit affair with the appellant. The sisters of the deceased being P.W.1 and P.W.2 have also disclosed about their sister resisting the marriage proposal extended by the appellant. These are the only circumstances against the present appellant though as per P.W.4 (Investigating Officer) none of the witnesses being P.W.1 and P.W.2 had disclosed about such facts during investigation.
16. In the case of "Sharad Birdhichand Sarda versus State of Maharashtra" reported in (1984) 4 SCC 116, the conditions necessary to be fulfilled before basing a conviction on circumstantial evidence has been enumerated in the following manner:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental
-9- Cr. Appeal (D.B.) No. 46 of 2015 distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) 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, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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."
17. In "G. Parshwanath versus State of Karnataka", reported in (2010) 8 SCC 593, it was held as follows:
"23. In cases where 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. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
-10- Cr. Appeal (D.B.) No. 46 of 2015
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."
18. Applying the law laid down by the Hon'ble Supreme Court as noted above to the facts of the present case it can be categorically concluded that there is virtually no evidence to draw an inference of guilt against the appellant. The chain of circumstances is not complete and a person cannot be propounded to be guilty merely on account of having an affair and a threat meted out on her objection to such marriage. None of the witnesses have disclosed about the presence of the appellant near the place of occurrence on that ill fated day or in the Hostel where the deceased was staying. No incriminating articles were recovered from the possession of the appellant. The learned trial court seems to have noticed the various inadequacies in the case of the prosecution but at the same time without any basis whatsoever has convicted the appellant based on circumstantial evidence
-11- Cr. Appeal (D.B.) No. 46 of 2015 which as stated above appears to be non-existent.
19. The glaring inadequacies and inconsistencies in the case of the prosecution is a consequence of a botched up investigation carried out by P.W.4. The role of the appellant has been highlighted by the Investigating Officer primarily on account of his having a love affair with the deceased but the nature of investigation carried out seems to indicate that the Investigating Officer was oblivious to the role played by Markus. Whether it was deliberate or unintentional or absence of proper methodical training can be anybody's guess. It has to be borne in mind that Markus is the nephew of P.W.1, P.W.2 and P.W.3 and he works in the Police department. As per the evidence of the witnesses it was Markus who in the preceding night had come to the house of P.W.3 with the deceased and had taken her back to the Hostel. The deceased was to travel to Patna on the date of occurrence to attend a wedding and Markus was to accompany her. It was once again Markus who had conveyed the news of the murder of Namita Arya. The First Information Report was registered against unknown though the needle of suspicion was pointed towards the appellant and Sonu but as per P.W.4 he did not carry out any investigation on Sonu since the informant had given a written application that there is no one called Sonu and his nephew is named Markus though as per P.W.1 Markus is also known as Sonu.
20. Apart from debilitating the role of Markus @ Sonu the Investigating Officer had failed to gather scientific evidence to zero in on the actual perpetrator of the murder. Near the body of Namita Arya were strewn, various articles including hairs and some tufts of hairs in her hand. P.W.4 has stated that he had never sent the hairs to FSL nor he had collected the hair samples of the appellant. A young women was brutally murdered in a road in the heart of the city, the brutality being evident from the postmortem report and what follows is a perfunctory investigation with an intention perhaps to shield the real culprit.
-12- Cr. Appeal (D.B.) No. 46 of 2015
21. We have highlighted the lacuna in the
investigation only to express our anguish over the manner in which the investigation has been conducted.
22. As we have noted above, the circumstantial evidence stressed much by the learned A.P.P. does not justify the conviction of the appellant in view of its inherent weak nature and viewed in such perspective we come to the conclusion that the prosecution has miserably failed to prove its case beyond all reasonable doubt against the appellant. As a consequence to the above, the judgment and order of conviction and sentence dated 20.12.2014 (sentence passed on 22.12.2014) passed by Sri Krishna Kumar, learned Judicial Commissioner-IV, Ranchi in Sessions Trial No. 467/2013, arising out of Doranda P.S. Case No. 266/2012, corresponding to G.R. Case No. 3218/2012, is hereby set aside.
23. This appeal is allowed.
24. Pending I.A., if any, stands disposed off.
25. Since the appellant is on jail he is directed to be released forthwith if not wanted in any other case.
(Rongon Mukhopadhyay, J.) (Rajesh Kumar, J.) High Court of Jharkhand at Ranchi Dated, the 10th day of June, 2022.
Alok/NAFR