Jharkhand High Court
Deepak Oraon Son Of Late Charo Oraon vs The State Of Jharkhand on 8 May, 2024
Author: Ananda Sen
Bench: Ananda Sen
Criminal Appeal (D.B.) No. 644 of 2018
WITH
Criminal Appeal (D.B.) No. 444 of 2018
WITH
Criminal Appeal (D.B.) No. 534 of 2018
WITH
Criminal Appeal (D.B.) No. 558 of 2018
----
[arising out of Judgment of Conviction dated 16th
March, 2018 and Order of Sentence dated 19th
March, 2018 passed by the Additional Judicial
Commissioner-XIII, Ranchi in Sessions Trial
No.74 of 2013 and Sessions Trial No.851 of 2013
corresponding to Ratu Police Station Case No.99
of 2012 (G.R. No.3358 of 2012)]
----
In Criminal Appeal (DB) No. 644 of 2018
Deepak Oraon son of Late Charo Oraon, resident of Village
Lundri, PO PS Chanho, District Ranchi.
... Appellant
-versus-
The State of Jharkhand ... Respondent
----
In Criminal Appeal (DB) No. 444 of 2018
Surendra Kumar Singh @ Surendar Kumar Singh, son of Lallu
Singh, resident of Village Jehli Tand, PO PS Khelari, District
Ranchi.
... Appellant
-versus-
The State of Jharkhand ... Respondent
----
In Criminal Appeal (DB) No. 534 of 2018
Sabir Ansari son of Yaseen Ansari, resident of Village-Jehlitand,
PO PS Khelari, District Ranchi.
... Appellant
-versus-
The State of Jharkhand ... Respondent
----
In Criminal Appeal (DB) No. 558 of 2018
Pradip Kumar Singh @ Bhagwat Singh son of Sri Kirtan Singh,
resident of Village Jehli Tand, Khelari, PO PS Khelari, District
Ranchi.
... Appellant
-versus-
The State of Jharkhand ... Respondent
----
For the Appellants : Mr. B.M. Tripathy, Sr. Advocate
Ms. Nutan Sharma, Advocate
Mr. Naveen Kumar Jaiswal, Advocate
Mr. Kripa Shankar Nanda, Advocate
Mr. Zafar Alam, Advocate
Mr. Indrajit Sinha, Advocate
Mr. Akhouri Awinash Kumar, Advocate
Ms. Alka Kumari, Advocate
1
For the Respondent : Mr. Pankaj Kumar, P.P.
Ms. Lily, Sahay, A.P.P.
Mr. Bhola Nath Ojha A.P.P.
----
PRESENT: SRI ANANDA SEN, J.
SRI SUBHASH CHAND, J.
----
JUDGMENT
Per Ananda Sen, J. All these criminal appeals arise out of a common Judgment of Conviction dated 16th March, 2018 and Order of Sentence dated 19th March, 2018 passed by the Additional Judicial Commissioner XIII, Ranchi in Sessions Trial No. 74 of 2013 and Sessions Trial No.851 of 2013 corresponding to Ratu Police Station Case No.99 of 2012 (G.R. No.3358 of 2012).
By the aforesaid Judgment of Conviction dated 16th March, 2018 and Order of Sentence dated 19th March, 2018, appellants have been convicted and sentenced in the following manner Name of the Appellant [Case Conviction Sentence Number] Deepak Oraon Under Sections 302 R.I. for life and a fine of Rs.50,000/- [Cr. Appeal (DB) No. read with Section 120B and in default of payment of fine R.I. for 644 of 2018] I.P.C. three months Under Section 201 read R.I. for seven years along with fine of with Section 120B I.P.C. Rs.5000/- and in default of payment of fine R.I. for three months Under Section 27(1) of R.I. for three years along with fine of the Arms Act Rs.5000/- and in default of payment of fine R.I. for three months.
Surendra Kumar Under Section 364 read R.I. for life and a fine of Rs.10,000/-
Singh @ Surendar with Section 120B I.P.C. and in default of payment of fine R.I. for
Kumar Singh three months
[Cr. Appeal (DB) No. Under Section 302 read R.I. for life and a fine of Rs.50,000/-
444 of 2018] with Section 120B I.P.C. and in default of payment of fine R.I. for
three months
Under Section 201 read R.I. for seven years along with fine of
with Section 120B I.P.C. Rs.5000/- and in default of payment of fine R.I. for three months Sabir Ansari [Cr. Under Sections 364 R.I. for life and a fine of Rs.10,000/-
Appeal (DB) No.534 read with Section 120B and in default of payment of fine R.I. for
of 2018] I.P.C. three months
Under Section 302 read R.I. for life and a fine of Rs.50,000/-
with Section 120B I.P.C. and in default of payment of fine R.I. for three months Under Section 201 read R.I. for seven years along with fine of with Section 120B I.P.C. Rs.5000/- and in default of payment of fine R.I. for three months.
Pradip Kumar Singh Under Sections 364 R.I. for life and a fine of Rs.10,000/-
@ Bhagwat Singh read with Section 120B and in default of payment of fine R.I. for
[Cr. Appeal (DB) I.P.C. three months
No.558 of 2018] Under Section 302 read R.I. for life and a fine of Rs.50,000/-
with Section 120B I.P.C. and in default of payment of fine R.I. for three months Under Section 201 read R.I. for seven years along with fine of with Section 120B I.P.C. Rs.5000/- and in default of payment of fine R.I. for three months.
22. Appellant Surendra Kumar Singh @ Surendar Kumar Singh [Cr. Appeal (DB) No.444 of 2018], appellant Deepak Oraon [Cr. Appeal (DB) No.644 of 2018] and appellant Pradip Kumar Singh @ Bhagwat Singh [Cr. Appeal (DB) No.558 of 2018] have faced trial in Sessions Trial No.74 of 2013, whereas appellant Sabir Ansari [Cr. Appeal (DB) No.534 of 2018] along with accused Mitrajeet Singh and Sandipan Singh have faced trial in Sessions Trial No.851 of 2013, but the judgment in both the trial is common.
3. Learned Senior Counsel Mr. B.M. Tripathy and all the other counsel appearing on behalf of the respective appellants submitted that the entire case is based on circumstantial evidence, but the chain of circumstances, which would remotely implicate these appellants is not complete. They submit that the prosecution case, as narrated in the First Information Report, has been developed at a later stage, when the informant deposed as a witness before the Trial Court. Even the wife of the deceased has not narrated anything to implicate these appellants. The statement of the wife of the deceased is also not in consonance with the First Information Report or the statement of the informant, who is the father of the deceased. The only material to convict the appellants is the confessional statement of the appellants and that too before the police, which led to recovery of a skeleton alleged to be of the deceased. Only the confessional statement, leading to recovery of the skeleton, cannot be a ground to convict the appellants. Based on some wearing apparels and accessories, the skeleton was identified to be that of the deceased, but, during scientific examination, the Forensic Science Laboratory could not give definite descriptive finding about the skeleton. Accessories and wearing apparels, on the basis of which, skeleton was identified to be that of the deceased, were not even produced before the Court nor was placed for identification. The murder weapon was not recovered. So far as the motive is concerned, the same has also not been established by any corroborative evidence by the prosecution, rather, solely based on the confessional statement, prosecution tried to establish the motive of murder, which could not have been accepted by the Court. On these grounds, the appellants seek acquittal from the charges against them.
4. Learned P.P./A.P.Ps. for the State submit that after arrest being made by the investigating officer, the accused confessed that they had committed murder of the deceased and had buried the body of the deceased in the banks of Koel River. On their statement, the skeleton was exhumed, 3 which was identified to be that of the deceased's from the wearing apparels and the accessories. Since the body was recovered on the confessional statement of the accused, the said recovery is admissible in terms of Section 27 of the Indian Evidence Act. The commission of murder and place where the dead body was concealed was within the exclusive knowledge of the appellants and since it was discovered on the statement of the accused and since this is a joint trial of all the accused persons, the confessional statement is admissible in terms of Section 30 of the Evidence Act. He submits that on the aforesaid background, the appellants have been correctly convicted, and these appeals need to be dismissed.
5. We have heard the learned counsel for the respective appellants and the learned P.P./A.P.Ps. for the State and have also gone through the records and the entire evidence.
6. Prosecution case is based on the written report of the informant, Ram Prasad Sahu (P.W.7), who is the father of the deceased. He stated that his son came with his family to spend the vacation, as he was a teacher in Gyan Bharati High School, Khelari. He came to Ranchi on 21.05.2012 along with his family. On 11.06.2012, at about 09.00 a.m. in the morning he received a phone call from his friend. On query, he stated that the phone call came from Surendra Kumar Singh, who happens to be his friend. He also disclosed that said Surendra Kumar Singh called him to come to Kathitanr as he has to go to some doctor. On receiving this information, Ravi Kumar (deceased) left his house. Till 04.00 p.m. the informant and the wife of Ravi Kumar Gupta, were in regular contact with Ravi Kumar Gupta. At 4 O' Clock, Ravi Kumar Gupta talked with his wife on mobile phone and told her that they are in Ranchi. Thereafter the phone was disconnected and he could not be communicated with. The informant tried to reach his son by calling him, but the mobile was found switched off. The informant searched different places, including houses of their relatives, but he was not found, thus, he believed that his son has been kidnapped by Surendra Kumar Singh and Suman Sao as there was some dispute between Ravi Kumar Gupta and Surendra Kumar Singh and Suman Kumar Sao and since few days, they were not in talking terms and they have left Khelari. The wife of Ravi Kumar Gupta informed the informant that her husband used to say that if something happens to him, then must take action against the mobile numbers 9709106507 (Suman Kumar Sao) and 7631146217 & 7209222443 (Surendra Kumar Singh).
47. On the basis of the written report of the informant Ratu Police Station Case No.99 of 2012 was registered under Sections 365/34 of the Indian Penal Code. The investigating officer took up the investigation and recorded the statement of the informant and others. The investigating officer also deployed his informers, who gave information that Pradeep Kumar Singh and Deepak Oraon were also involved in this case. They were arrested when Deepak Oraon confessed that he murdered Ravi Kumar Gupta with fire arm and buried his dead body on the banks of Koel River. On disclosure made by Deepak Oraon, a skeleton was exhumed from a place, which is beside Koel River, in presence of a Magistrate. Said skeleton was identified to be of Ravi Kumar Gupta. Such identification is based on the basis of the belt, apparels and shoes, which came out along with the skeleton. Deepak Oraon confessed before the police that accused Surendra Kumar Singh had hired him to murder Ravi Kumar Gupta on contract by paying Rs.50,000/- (Rupees Fifty Thousand). He stated at all the other appellants were present at the time of occurrence. The investigating officer, after closure of investigation filed chargesheet No.190 of 2012 dated 29.11.2012 and supplementary Chargesheet No.182 of 2013 dated 28.08.2013 against the accused persons under Sections 364, 302, 201, 120B of the Indian Penal Code and Section 27 of the Arms Act. Cognizance of the offence was and the case was committed to the Court of Sessions. On 02.12.2013 charge was framed against the accused Surendra Kumar Singh, Deepak Oraon and Pradeep Kumar Singh under Section 364/34 of the Indian Penal Code, Sections 201/34 of the Indian Penal Code, 302/34 of the Indian Penal Code, 120B of the Indian Penal Code, Section 27 of the Arms Act. On 03.01.2014 charges were framed against accused Sabir Ansari, Mitrajeet Singh and Sandipan Singh for offences under Sections 364/34 of the Indian Penal Code, 201/34 of the Indian Penal Code, 302/34 of the Indian Penal Code, Section 120B of the Indian Penal Code and Section 27 of the Arms Act. Charges were read over and explained to the accused to which they pleaded not guilty and claimed to be tried. There were two trials and the same were amalgamated on 03.01.2014 and both the trials proceeded jointly post amalgamation.
8. To bring home the charges, the prosecution examined altogether 14 witnesses, namely, P.W.1 Maisa Oraon, P.W.2 Gansu Oraon, P.W.3 Mustafa Ansari, P.W.4 Aslam Ansari, P.W.5 Jitendra Munda, P.W.6 Devanti Devi, P.W.7 Ram Prasad Sahu, P.W.8 Dr. Ajit Kumar Choudhary, P.W.9 5 Ashok Kumar Ram, P.W.10 Dr. Rama Shankar Singh, P.W.11 Reyaz Ahmad Khan (Investigating Officer), P.W. 12 Ainul Ali, P.W.13 Ramu Singh and P.W.14 Anil Kumar Singh (Investigating Officer).
The prosecution also produced the following documentary evidence, which were marked exhibits: -
Exhibit 1 Sign on seizure list
Exhibit 2 Sign on seizure list
Exhibit 3 Sign on carbon copy of inquest report
Exhibit 4 Written Report
Exhibit 5 Report of Examination of skeleton remains
Exhibit 6 & FSL Report
6/1
Exhibit 7 Formal FIR
Exhibit 8 Registration of FIR
Exhibit 9 & Sign on confessional statement of Deepak Oraon and 9/1 Pradip Kumar Singh Exhibit 10 Carbon copy of Inquest Report The defence did not examine any witness in support of their defence.
9. After closure of the evidence, appellants were examined under Section 313 of the Code of Criminal Procedure, wherein they denied the circumstances which got revealed in evidence, and they claimed innocence.
10. The Trial Court, after hearing the arguments of the parties and after going through the evidence, by a Judgment of Conviction dated 16th March, 2018 and Order of Sentence dated 19th March, 2018 passed in Sessions Trial No. 74 of 2013 and Sessions Trial No.851 of 2013 corresponding to Ratu Police Station Case No.99 of 2012 (G.R. No.3358 of 2012) has held the appellants guilty, convicted them and sentenced them for the offences as detailed in paragraph 1 hereinbefore.
11. Challenging the aforesaid conviction and sentence, the appellants have preferred these appeals.
12. We have gone through the evidence and the entire records.
13. Admittedly, there are no eye witnesses to the occurrence. Entire case is based on circumstantial evidence. Considering the nature of the evidence, we are not recording in details the evidence of the witnesses, but are only dealing with the important aspects of each of the witnesses and highlighting the same, which has led us to reach at the conclusion.
14. The main witnesses in this case are P.W.7, who is the father of the deceased and informant in this case, P.W.6, who is the wife of the deceased, P.W.11 and P.W.14 who are the investigating officers.
615. P.W.1 Maisa Oraon and P.W.2 Gansu Oraon have stated nothing about the facts of the case. They only stated that they have identified their thumb impression on the inquest report.
P.W.3 Mohammad Mustafa Ansari and P.W.4 Aslam Ansari are seizure list witnesses, who had proved Exhibits 1 and 2 to be their respective signatures on the seizure list. Both of them did not say anything about the facts of the case, rather P.W.3 was declared hostile.
P.W.5 Jitendra Munda is the Circle Officer, who identified his signature on the seizure list after seeing its carbon copy. He stated that in his presence on the identification by accused Deepak Oraon, the dead body was recovered. He stated that before exhuming the body, no information was given to the close relatives of the deceased. He stated that pieces of bones were kept in a packet and it was sealed. The body, which was recovered, was not possible to be identified. He stated that the investigating officer had recorded his statement during investigation. No one came to identify the dead body.
P.W.6 Devanti Devi is the wife of the deceased. He stated that on 11th June, Mitrajeet Singh, Principal of Gyan Bharati Public School, where the deceased was teaching and his brother Sandipan Singh came to their house and alongwith them deceased left the house. At 08.00 p.m. in the night, when his phone was found to be switched of, they searched for her husband, but his whereabouts could not be traced. On the next day, father-in-law of this witness informed the police when police advised them to wait for 24 hours on the ground that it was election time, may be her husband would later return. When her husband did not return, on 14th the First Information Report was lodged. She stated that the police had recorded her statement. She was declared hostile for limited purpose. She stated that she firmly believes that her husband has been kidnapped by the Principal Mitrajeet Singh and his brother Sandipan Singh, Suman Kumar Sao and Surendra Kumar Singh. Later on she came to know that her husband was murdered. No important fact was extracted from her cross examination.
P.W.7 Ram Prasad Sahu is the father of the deceased and he is the informant of this case. He stated that Ravi Kumar Gupta is his son. On 11.06.2012, Mitrajit Singh, Principal of the School, where the deceased was teaching, came to their house and after some conversation, they all left along with his son. In the evening he did not return. At 4 O' Clock over phone they called the Principal, who told that Ravi left them near Kathitanr crossing. On 7 12.06.2012, he went to the police station to report about his missing son. Again on 13.06.2012 also he went to the Police and ultimately on 14.06.2012, First Information Report was registered. The written report was marked as Exhibit 4.
In cross examination, nothing much could be extracted from his statement.
P.W.8 is the doctor, who had examined the skeletal remains, which was received by him and was kept in a wooden box wrapped in a plastic bag. There was Hip Bone, Femur both of left side, tibia, fibula, humerus, radius and clavicle on each right side. Small bones of left and right feet in the sock and were articulated with garment and soft tissue. There was leather shoe, half shirt, white ganji, full pant etc. There was no evidence of antemortem mechanical injury over the available bone. He opined that bones are of human origin belonging to male of 35 years + or - 5 years and it is not possible to comment on the cause of death as the material available do not bear ante- mortem injury but possibility of injury over missing part cannot be denied. Time since death is 3 months to 6 months from the date of examination. He stated that he did not conduct any chemical or other test on the bones. Ossification test was done. He stated that he did not conduct any DNA.
P.W.9 is Ashok Kumar Ram. He stated that he had submitted Chargesheet No.190/12 dated 29.11.2012 against the accused Surendra Kumar Singh, Deepak Oraon, Pradip Singh @ Bhagwat Singh under Sections 364, 302, 201, 120B of the Indian Penal Code and Section 27 of the Arms Act whereas the investigation against other accused was still continuing. He stated that he had recorded the statement of witnesses Ranjan Gupta and Sanjay Gupta. He had handed over the investigation of the case to the Officer-in- Charge and has mentioned the same at paragraph 289 of the supplementary case diary.
In cross examination he stated that he had not seized anything, he had not arrested any accused nor had sent any material exhibit for examination. He has further stated that postmortem report was not received before filing of the supplementary chargesheet. He stated that accused Surendra Singh had surrendered on 03.09.2012 and the deadbody of the deceased was recovered on 18.09.2012.
P.W.10 is Dr. Rama Shankar Singh. He was incharge Inspector, FSL, Ranchi. He stated that the piece of bone in envelope marked 'A' was 8 yellowish in colour. He stated that the liquid blood in plastic marked 'B' which was said to be of Ram Prasad Sahu, was totally decayed and as such was not fit for DNA test. He has further stated that in envelope marked 'C' soaked blood of Ram Prasad Sahu was said to be there. He stated that the test report in respect of the same in his signature was prepared on 19.11.2013. He has stated that in mark 'C' DNA was found and profile was also generated. He further stated that for DNA test, bone could not be processed, therefore, the relation between Mark 'A' and Mark 'C' could not be ascertained. The blood in Mark 'C' was found to be of male human. Thereafter the test report was prepared on 26.11.2013 which was in his signature. Both the reports were marked Exhibit 6 and 6/1.
In cross examination he stated that Mark 'A' could not be matched with Mark 'C' as because DNA could not be generated from Mark 'A'. He stated that he is unable to tell as to whether the bone was of male or female.
P.W.11 Reyaz Ahmed Khan is the investigating Officer. He has proved Exhibit 7, which is the formal First Information Report. He further proved the endorsement made on the written report of the informant, which is Exhibit 8. He has further stated that he has recorded the statements of P.W.6, wife of the deceased, Mukesh Choudhary, Chhotan Sahu, Ram Singh. He stated about the steps of investigation carried out by him. He further stated that he took restatement of the informant (P.W.7). He stated about the confessional statement of Deepak Oraon and Pradip Kumar Singh on 17.09.2012. Thereafter he went to Koel River along with Deepak Oraon and Pradip Kumar Singh. He stated that the dead body of the deceased was exhumed from Koel River. He thereafter stated about seizure of one bolero vehicle on 19.10.2012. He further stated that on 21.10.2012 restatement of the informant Ram Prasad Sahu was recorded. On 20.11.2012 he handed over the charge of investigation to the Officer-in-Charge, who in turn handed over the investigation to Ashok Ram. He identified the accused whose confessional statement was recorded by him. He proved his signature on the confessional statements of Deepak Oraon and Pradeep Kumar Singh, which were marked as Exhibits 9 and 9/1.
P.W.12 is Ainul Ali. He stated that he had accompanied the Officer-in-Charge and the investigating officer to Jethli Village and Lugdi Village on 17.09.2012 for interrogating Deepak Oraon and Pradeep Kumar Singh respectively. On 18.09.2012 confessional statement of Pradeep Kumar 9 Singh was recorded. Thereafter he has stated about exhuming of the dead body of Ravi Kumar. He stated that the dead body was decayed. Alongwith the dead body his shoes, shirt etc. were also recovered. He stated that the brother of the deceased Ranjan Kumar Sahu on the basis of the shoes, belt and pant had identified the dead body to be that of the deceased. He proved the Inquest Report which contained the signature of Officer-in-charge and the Circle Officer, Chano, which was marked as Exhibit 10.
P.W.13 is Ramu Singh. He has stated that on 11.06.2012 while he was returning from market, when he reached near his house he saw that Ravi Kumar Gupta was going along with two persons on a motorcycle at about 9 O' clock. He stated that on the same day at night, his father told that Ravi Gupta has not returned home till now. For two days Ravi Gupta could not be traced and when he was not found, his father lodged a case in the police station. He identified the accused who were present in Court.
P.W.14 is Anil Kumar Singh. He stated that he took charge of the investigation from Ashok Kumar Lal on 27.02.2013. He stated that he procured warrant against the accused Sabir Ansari, Bigul Oraon, Mitrajeet Singh and Sandipan Singh. Thereafter he received the postmortem report. He also recorded the statement of the accused Sandipan Singh, Sabir Ansari and Mitrajeet Singh. He stated that on 02.08.2013 he sent the blood samples of Ram Prasad Sahu and the seized bones to the FSL, Ranchi. He had recorded the statement of witness Yamuni Oraon. He stated that he submitted Chargesheet No.182 of 2013 dated 28.08.2013 against accused Sabir Ansari, Mitrajeet Singh and Sandipan Singh by showing the accused Bigul Oraon @ Jaleshwar Yadav @ Tiger as absconder.
16. Thus, from the aforesaid evidence, it has been substantiated that there are no eye witness to the occurrence. So far as P.W.7 is concerned, he while deposing as a witness, stated that it is Mitrajeet Singh and Sandipan Singh who came to their house in the morning and deceased had left with them, but did not return. Whereas in the written report it was stated by him that a phone call came from Surendra Kumar Singh saying he is with some doctor whereafter the deceased had left his house. In the written report, he has no where taken the names of Mitrajeet Singh or Sandipan Singh nor ever stated that they had visited his house. While deposing before the Court, this witness gives a new story. He states that Mitrajeet Singh and Sandipan Singh came to their house and his son left with them and thereafter he was not available over 10 phone. These two different versions, one in the Written Report and one during evidence before the Court creates doubt in the mind of this Court about the correctness of the prosecution case on the point of the son of P.W.7 leaving his house. This major deviation makes this witness unbelievable on this point.
17. The wife of Ravi Kumar Gupta also did not alleged against any person. She stated that her husband has left with Mitrajeet Singh and Sandipan Singh. Thus, on the point of leaving the house, we have two different versions from the informant (P.W.7) and wife of the deceased (P.W.6). Thereafter no one had seen these persons together with the deceased.
18. Next incriminating circumstance is recovery of the dead body. It has come in evidence of the investigating officer that it is Deepak Oraon, who was arrested and it is he, who confessed his guilt and stated that they were engaged and hired to commit murder of the son of the informant. On his confessional statement before the police, a skeleton was recovered, which the prosecution claims to be of the son of the informant.
19. Now prosecution has alleged that confession has been proved by the investigating officer, i.e., P.W.11. When we go through the statement of the investigating officer (P.W.11), we find that he has proved the confessional statement, which was written, and the signature of Deepak Oraon and Pradip Kumar Singh, which was marked as Exhibit 9 and 9/1. This confessional statement cannot be accepted in evidence as we find that the same has not been proved in terms of Section 27 of the Evidence Act.
20. The Hon'ble Supreme Court in the case of Babu Sahebagouda Rudragoudar and others versus State of Karnataka reported in 2024 SCC OnLine SC 561 at paragraphs 64 and 65 thereof, while referring to their judgments in the case of Subramanya versus State of Karnataka [2022 SCC OnLine SC 1400] and in the case of Ramanand @ Nandlal Bharti versus State of Uttar Pradesh [2022 SCC OnLine SC 1396] has held as under: -
"64. Further, in the case of Subramanya versus State of Karnataka, it was held as under:-
"82. Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discoveries in accordance with law. Section 27 of the Evidence Act reads thus:
"27. How much of information received from accused may be proved.-
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody 11 of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
83. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.
84. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and violition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter." (emphasis supplied)
65. Similar view was taken by this Court in the case of Ramanand @ Nandlal Bharti v. State of Uttar Pradesh, wherein this Court held that mere exhibiting of memorandum prepared by the Investigating Officer during investigation cannot tentamount to proof of its contents. While testifying on oath, the Investigating Officer would be required to narrate the sequence of events which transpired leading to the recording of the disclosure statement."
1221. In the instant case, while we go through the statement of P.W.11, we find that he has not narrated the exact statement said to have been made by the appellants herein, which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act, which is necessary to prove. Thus, his evidence cannot be looked into, and the recovery will not be covered under Section 27 of the Evidence Act.
22. Further, we find that a skeleton was recovered and it is alleged that the same was identified based on the wearing apparels and shoes etc. P.W.5, in whose presence, the skeleton was recovered, clearly stated that the remains were beyond identification. Further, we find that the apparels, based on which it is said that the skeleton was identified to be that of Ravi Kumar Gupta were also not produced before the Court. Further, we find that the DNA test was not done to get the body identified. Further there was no one to identify the body from the side of the informant. P.W.12 though states that the brother of the deceased identified the body by the help of the apparels, but surprisingly he was not produced in Court as witness.
23. So far as murder weapon is concerned, there was no recovery of any murder weapon. The doctor, who had examined the skeleton remains, stated that there is no evidence to suggest any assault. There was no DNA profiling done in the instant case, as P.W.10, i.e., the Forensic Expert has stated that samples were not fit for DNA test and the bone processing could not be done for DNA test.
24. Further, the motive of murder has neither been established nor any evidence has been produced, though the prosecution has come up with a story that the wife of the deceased had some relationship with one of the accused, which led to this occurrence, but there is nothing on record in support of such statement. There is no corroborative evidence in proof of this claim.
25. Considering the aforesaid facts, we find that neither the chain of circumstances is complete nor there are any other overwhelming circumstances which could lead to the conclusive proof that it is the appellants, who have committed murder of the deceased. The prosecution has failed to prove the guilt of all these appellants beyond all reasonable doubt.
26. Thus, we are inclined to allow these appeals and acquit the appellants. The conviction of the appellant-Deepak Oraon [Cr. Appeal (DB) No.644 of 2018] under Sections 302 read with Section 120B of the Indian Penal Code, Section 201 read with Section 120B of the Indian Penal Code and 13 under Section 27(1) of the Arms Act; appellant Surendra Kumar Singh @ Surendar Kumar Singh [Cr. Appeal (DB) No.444 of 2018] under Section 364 read with Section 120B of the Indian Penal Code, under Section 302 read with Section 120B of the Indian Penal Code and under Section 201 read with Section 120B of the Indian Penal; appellant Sabir Ansari [Cr. Appeal (DB) No.534 of 2018] under Sections 364 read with Section 120B of the Indian Penal Code under Section 302 read with Section 120B of the Indian Penal Code and under Section 201 read with Section 120B of the Indian Penal Code; and appellant Pradip Kumar Singh @ Bhagwat Singh [Cr. Appeal (DB) No.558 of 2018] under Sections 364 read with Section 120B of the Indian Penal Code, under Section 302 read with Section 120B of the Indian Penal Code and under Section 201 read with Section 120B of the Indian Penal Code vide judgment of conviction dated 16th March, 2018 passed in Sessions Trial No.74 of 2013 and Sessions Trial No.851 of 2013 as also the order of sentence dated 19th March, 2018 passed in the said Sessions Trial No.74 of 2013 and Sessions Trial No.851 of 2013 awarding sentence to the appellants herein are hereby set aside.
27. Let the appellants be released forthwith from custody, if not required in any other case.
28. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.
(Ananda Sen, J.) (Subhash Chand, J.) High Court of Jharkhand, Ranchi Dated, the 08th May, 2024 Kumar/Cp-03 AFR 14