Jharkhand High Court
The State Of Jharkhand vs Vishnu Yadav Aged About 23 Years on 10 September, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Death Reference No. 3 of 2023
The State of Jharkhand ... Appellant(s).
Versus
1. Vishnu Yadav aged about 23 years, son of Lakshmi Yadav @
Lakshmi Mahto, resident of Shivnagar, PO Simarjor, PS Mohanpur,
District Deoghar, Jharkhand
2. Ritlal Yadav aged about 25 years, son of Dhanpati Mahto,
residence of village Thariyara, Post Morne, PS Mohanpur, District
Deoghar, Jharkhand
3. Bhavesh Yadav@ Bhavesh Kumar Yadav @ Bhavesh Kumar aged
about 24 years, son of Maheshwar Yadav, resident of village Saraiya,
PO Saraiya, PS Mohanpur, District Deoghar (Jharkhand)
... Respondent(s).
With
Cr. Appeal (D.B.) No.382 of 2023
-----
Vishnu Yadav aged about 23 years, son of Lakshmi Yadav @
Lakshmi Mahto, resident of Shivnagar, PO Simarjor, PS Mohanpur,
District Deoghar, Jharkhand ... Appellant(s).
Versus
The State of Jharkhand ... Respondent(s).
With
Cr. Appeal (D.B.) No.422 of 2023
-----
Ritlal Yadav aged about 25 years, son of Dhanpati Mahto, residence
of village Thariyara, Post Morne, PS Mohanpur, District Deoghar,
Jharkhand ... Appellant(s).
Versus
The State of Jharkhand ... Respondent(s).
With
Cr. Appeal (D.B.) No.565 of 2023
-----
Bhavesh Yadav @ Bhavesh Kumar Yadav @ Bhavesh Kumar aged
about 24 years, son of Maheshwar Yadav, resident of village Saraiya,
PO Saraiya, PS Mohanpur, District Deoghar (Jharkhand)
... Appellant(s).
Versus
The State of Jharkhand ... Respondent(s).
------
PRESENT
SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
------
For the Appellant(s) : Mrs. Priya Shrestha, Spl.PP
[in D. Ref. No. 3 of 2023]
Mr. Arvind Kumar Choudhary, Advocate
[in Cr. A. (DB) No. 382 of 2023]
Mr. Lalit Yadav, Advocate
[in Cr. A. (DB) No. 422 of 2023]
Mr. A. K. Kashyap, Sr. Advocate
[in Cr. A. (DB) No. 565 of 2023]
For the State : Mr. Pankaj Kumar, PP
Mr. Manoj Kumar Mishra, APP
Ms. Ruby Pandey, APP
For the Informant : Ms. Monalisa Singh, Advocate
Ms. Bindita Chaturvedi, Advocate
.........
JUDGMENT
10th September 2024 Per Ananda Sen, J.: This Death Reference and the connected Criminal Appeals arises out of judgment of conviction dated 04.02.2023 and order of sentence dated 25.02.2023 passed in POCSO Case No. 18 of 2020 whereby and whereunder learned Special Judge, POCSO, Deoghar convicted the appellants under sections 376DA, 302/34, 201/34 and 120-B of the Indian Penal Code and section 6 of the POCSO Act and sentenced them to death with fine of Rs. 30,000/- each under section 302 IPC. They have been further directed to undergo imprisonment for life with fine of Rs. 20,000/- each for the offence under section 376DA of the Indian Penal Code and in default of payment of fine, further to undergo SI for six months. They are further sentenced to undergo imprisonment for life and fine of Rs. 20,000/- each for offence under section 120B IPC and in default, they have to undergo imprisonment for six months. They are further directed to undergo RI for seven years with a fine of Rs. 5,000/- each for the offence under section 201 of the Indian Penal Code and in default of payment of fine, further to undergo imprisonment for six months.
2. The learned counsel for the appellants submits that there is no material even to convict the appellants in this case. The entire case is based on circumstantial evidence, as there is no direct evidence of commission of the rape and murder. Chain of 2 circumstance has not been proved to establish the guilt of the appellants in the crime.
3. The circumstances are also so flimsy, based on which conviction cannot be sustained. The learned senior counsel submits that though the prosecution somehow may have been able to prove the homicidal death and commission of sexual assault but how the appellants could be connected to it has not been proved. Only on the evidence of some hearsay witnesses that these appellants used to visit the house of the informant to meet the deceased in absence of the informant and his wife, the prosecution has arrived at a conclusion that it is these appellants who had committed rape and murder of the deceased.
4. PW3 on whose statement the prosecution tried to prove that the deceased was last seen in the company of these appellants, is not credible as the investigating officer had categorically stated that during investigation, the statement of this witness was recorded under section 161 Cr.PC, wherein he didn't state the fact that he had seen the deceased in the company of the appellants. Similar is the case with PW4.
5. It is further argued that the prosecution is relying upon some Call Details Report but surprisingly for reasons best known, the certification of the same in terms of section 65B of the Evidence Act has not been proved. Without formal proof of the certificate issued in terms of section 65B of the Evidence Act, the said electronic evidence cannot transformed into an admissible electronic evidence and thus is not admissible. He submits that even if this document is accepted then also it merely proves that these appellants where talking with each other, which cannot be a good ground to come to a logical conclusion that these appellants had committed murder of the deceased.
36. The learned counsel for the State submits that this is a brutal case of murder and rape of a minor girl and the postmortem report and the evidence of the doctor clearly suggests that the death was due to throttling and the victim was raped and also assaulted. He further stated that the villagers have stated that the appellant, namely, Vishnu Yadav used to come to the house of this deceased and they used to often meet in absence of the parents of the deceased with the help of other appellants. Thus, no one except these appellants would have committed the offence. He submits that PW3 has stated that these appellants were along with the deceased in the jungle as this witness had stated on oath, that he had seen the deceased standing holding a cycle along with Ritlal Yadav, whereas Vishnu Yadav and Jitendra Yadav were coming from behind. PW4 also stated that he had seen these four in jungle together and thereafter he left. The body was found in the jungle, thus save and except these appellants no one could have committed the offence.
7. As per the learned counsel for the State the tower location of the mobile phones clearly suggests that all the accused were at the same place but he admits that though there is certificate under section 65B of the Evidence Act but the same was not exhibited and was only marked as "X" for identification.
8. This case arises out of an FIR lodged by Parmanand Yadav. He stated that the deceased is her daughter and was minor. He recorded his fardbeyan in the Saraiya forest in front of the dead body of her daughter. The said fardbeyan is of 10.04.2020. He stated that on 08.04.2020 at about 3:00 PM her daughter aged about 15 years, who is the student of matric, in absence of him and his wife left the house telling her neighbours that she was going to Saraiya village to get a blouse stitched. She went on a 4 cycle but did not returned till night. Informant searched but could not get any clue. Some villagers informed him that in absence of him and his wife, Vishnu Yadav regularly used to come to his house to meet his daughter. The informant also came to know that Jitendra Yadav, Ritlal Yadav and Vishnu Yadav used to assist Vishnu Yadav. He came to know that when her daughter used to remain alone in the house, these two persons used to call Vishnu Yadav. The informant thereafter sent Kirani Yadav to the house of Vishnu Yadav to seek information where after he came to know that he is not present in the house. On 10.04.2020 he went with his nephew in search of his daughter and found the dead body lying near the road in Saraiya jungle. There were several marks of assault in different part of the body including legs and private parts, which was caused by sharp cutting weapon. The cycle of the deceased was also lying there along with her apparels and slippers. He suspected that these appellants have committed murder of his daughter after rape.
9. On the basis of fardbeyan, Mohanpur P.S Case No. 71 of 2020 was registered under sections 302, 376D, 201, 120B, 34 of IPC and section 6 of POCSO Act.
10. Be it noted that the appellant, namely, Bhavesh Yadav was not named in the FIR. Further named accused Jogeshwar Yadav was not charge-sheeted as no material was found against him. Thus he was not sent up for trial.
As the appellants pleaded not guilty charge was framed and they were put on trial.
11. To prove the prosecution case, altogether 18 witnesses were examined by the prosecution whose names are here under:-
i. PW1 :- Fekan Tatwa
ii. PW2 :- Gurudeo Mirdha
iii. PW3 :- Kirani Yadav
iv. PW4 :- Sri Prasad Yadav
5
v. PW5 :- Baleshwar Prasad Yadav
vi. PW6 :- Santosh Yadav
vii. PW7 :- Tuntun Yadav
viii. PW8 :- Jagdish Mahto
ix. PW9 :- Sitaram Yadav
x. PW10 :- Sunita Devi
xi. PW11 :- Shakuntala Devi
xii. PW12 :- Parmanand Yadav
xiii. PW13 :- Dr. Kumar Aniket
xiv. PW14 :- Dr. Sushma Verma
xv. PW15 :- Laxmi Prasad Mandal
xvi. PW16 :- Arvind Kumar
xvii. PW17:- Prem Pradeep Kumar
xviii.PW18:-Dhirendra Yadav
12. Following documents have been exhibited :
i. Ext.1 - Signature of Fekan Tatwa on Production-cum-Seizure list dated 10.04.2020.
ii. Ext.1/1 - Signature of Gurudeo Mirdha on Production-cum-
Seizure list dated 10.04.2020.
iii. Ext.1/2 - Production-cum-Seizure list of the cloths of the deceased.
iv. Ext. 2 - Signature of Baleshwar Yadav on seizure list dated 10.04.2020, prepared at 8:15 A.M. at Saraiya forest. v. Ext. 2/1 - Signature of Santosh Yadav on seizure list dated 10.04.2020, prepared at 8:15 A.M., at Saraiya forest.
vi. Ext. 2/2 - Seizure list dated 10.04.2020, prepared at 8:15 at Saraiya forest, which shows that one Gold Line Super Atlas bicyle, one maroon coloured blouse and one black coloured new cloth were seized from there.
vii. Ext. 3 - Signature of Baleshwar Yadav on seizure list dated 10.04.2020, prepared at 5:00 PM at the house of Ritlal Yadav. viii. Ext. 3/1 - Signature of Santosh Yadav on seizure list dated 10.04.2020, prepared at 5:00 PM at the house of Ritlal Yadav. ix. Ext. 3/2 - Seizure list dated 10.04.2020, prepared at 5:00 PM at the house of Ritlal Yadav, which shows that one mobile of Vivo Company and one SIM of JIO Company were seized from there.
x. Ext.4 - Signature of Parmanand Yadav on fardbeyan dated 10.04.2020 recorded at 7:55 A.M. in Saraiya forest at Bhagwanpur-Ghormara road under Mohanpur, PS Deoghar xi. Ext. 4/1 - Fardbeyan of the informant dated 10.04.2020. xii. Ext. 4/2 - Endorsement on Fardbeyan dated 10.04.2020.
6xiii. Ext. 5 - Postmortem report of the deceased. xiv. Ext. 5/1 - Signature of Dr. Sushma Verma on P.M. Report dated 10.04.2020.
xv. Ext. 6 - Formal FIR dated 10.04.2020.
xvi. Ext. 7 - Inquest report dated 10.04.2020. xvii. Ext.8 - Confessional statement of the accused Jitendra Yadav recorded on 10.04.2020.
xviii. Ext. 8/1 - Confessional statement of accused Ritlal Yadav recorded on 10.04.2020.
xix. Ext. 8/2 - Confessional statement of accused Vishnu Yadav recorded on 10.04.2020.
xx. Ext. 8/3 - Confessional statement of accused Bhavesh Yadav recorded on 11.04.2020.
xxi. Ext. 9 - Arrest memo of accused Jitrendra Kumar Yadav made on 10.04.2020.
xxii. Ext. 9/1 - Arrest memo of Ritlal Yadav made on 10.04.2020. xxiii. Ext. 9/2 - Arrest memo of accused Bhavesh Yadav made on 11.04.2020.
xxiv. Ext. 9/3 - Arrest memo of accused Vishnu Yadav made on 10.04.2020.
xxv. Ext. 10 - Certificate issued by Incharge Principal of Rajyakrit Kalyan High School Chulhia, Deoghar showing date of birth of victim as 21.03.2005.
xxvi. Ext.11 - SFSL Report dated 26.11.2021. xxvii. Ext. 12&12/1 - Application of officer-in-charge, Mohanpur PS for producing seized materials in the Court. xxviii. Ext.13 - Authorization letter dated 07.09.2022.
13. Several materials were exhibited and the copy of the Call Details Report was produced and marked "X" for identification.
14. From the prosecution case, we find that there is no eye- witness to the said occurrence. The entire case is based on circumstantial evidence. The circumstances relied upon by the prosecution are as follows:
(i) The appellant Vishnu Yadav used to often visit the house of the informant in absence of his wife and himself, to meet the deceased who is none but the daughter of the informant.
(ii) The deceased was last seen in the jungle by PW3 and PW4 in the company of these appellants.7
(iii) The deceased was earlier molested by the appellants when she used to go to school and this informant earlier had cautioned these appellants not to molest her daughter, when these appellants assured him that they will not do so in future.
(iv) Father of these appellants also assured that their sons will not molest the daughter of the informant.
(v) The postmortem report and medical examination report suggest that the death was homicidal and rape was committed.
(vi) Call Details Report would suggest that the appellants were talking to each other on the date of occurrence.
(vii) The body was found in the jungle and the location matched with their Call Details Report and the body was found in the same place where these appellants were last seen with the deceased.
15. Now let us consider as to whether the circumstances which have been produced by the prosecution have been established/proved or not to prove the guilt of these appellants.
16. The doctor who conducted the postmortem of the deceased is PW13. He stated that he was in the Board which conducted the postmortem. The deceased is aged about 15 years. The findings as per the postmortem report is as follows:
External findings : Tongue protuded, wound on right thigh, wound on left arm, wound on the back of left thigh. All the wound may be caused by the bite of dog, because bite of tooth was present. Maggot was present. No external injury was found on the private part of the body. There were blisters over the face and chest.
Internal findings : On opening of the skull, brain and meninges intact, on opening of the neck hyoid bone intact. Thyroid gland lacerated. On opening of the chest, lungs and heart intact. On opening of the abdomen, stomach contain semi mucoid fluid about 150 ml. Liver, Kidney, 8 Spleen, Uterus intact. Urinary bladder intact. Swab of vagina was taken and sent for laboratory examination.
Doctor opined that the death was because of throttling which caused asphyxia and the victim was raped. Spermatozoa was also found as per the report of vaginal swab slide examination. He proved the postmortem report.
PW14 Dr. Sushma Verma is also another doctor who participated in the postmortem. She reiterated the statement given by PW13 and her signature was marked as Exhibit 5/1.
Thus from the evidence of the doctor we find that the prosecution has established the fact that the deceased died homicidal death and she was raped. So far as the external injury of the deceased is concerned the doctor has opined that all the wounds have been caused by dog bites because teeth marks were present. Thus from the medical evidence the death appears to be homicidal.
17. The next important circumstance which the prosecution has put forth is that the deceased was last seen in the company of these appellants near the forest where the body was found. The prosecution through PW3 and PW4 tried to prove that the deceased was last seen in the company of these appellants. PW3 is Kirani Yadav who stated that on 08.04.2020 at about 4:00 PM he was going to his in-law's house and on the way near Saraiya forest he saw the victim holding the handle of a bicycle and appellant Bhawesh Yadav was standing there. He also stated that Vishnu Yadav and Jitendra Yadav were coming there from behind, he thereafter left. He later on returned and came to know that the victim was murdered and the body was thrown in the Saraiya forest. He along with the villagers went to the forest to see the dead body. He in cross examination affirmed that he stated before the police during investigation that he had seen the 9 deceased standing along with these appellants by holding the bicycle handle and except these appellants there were none others. He also affirmed that he told the investigating officer that he had seen the deceased in the company of these appellants.
PW4 is Sri Prasad Yadav who stated that he went to graze his goats in the Saraiya Jungle where he saw these appellants and the victim. The victim was standing there holding the bicycle and thereafter he returned home. Later on he came to know that the deceased was raped and murdered and her dead body was thrown in the jungle. These two are the only witnesses on the point of last seen.
Investigating officer in this case has been examined as PW15. In paragraph no. 39 of his cross examination he categorically admitted that Kirani Yadav (PW3) had never stated before him, during investigation, that when he was going through the jungle to his in-law's house when he had seen the deceased in the company of these appellants and deceased was standing holding the handle of the bicycle. He stated that whatever statement this Kirani Yadav had given before him has been noted down in the case-diary. In paragraph no. 40 he stated that Sri Prasad Yadav (PW4) had never stated before him during investigation that he had seen the deceased in company of these appellants in the jungle and the deceased was standing there holding the handle of the bicycle. He also stated that what Sri Prasad Yadav had stated has been written down by him in the case-diary. Thus from the evidence of the investigating officer, we find that PW3 and PW4 had made a major improvement in their deposition from what they had stated during investigation. In deposition they become the witness of the fact that the deceased was last seen in the company of these appellants but from the deposition of the investigating officer the entire 10 statement of PW3 and PW4 on the point of last seen get demolished.
18. Though in the appellate stage it is not proper to go through the case-diary but the case-diary is with us and the investigating officer had stated that whatever these witnesses have stated was written by him in the case-diary, thus we have gone through the case-diary also. While going through the case-diary we find that investigating officer had recorded the statement of PW3 and PW4 but surprisingly in their statement nowhere these two witnesses stated that they had seen the deceased in the company of these appellants. Save and except these witnesses there is no witness of the prosecution on the point of last seen. In view of the vital contradiction appearing in their account, it cannot be accepted that the deceased was last seen in the company of the appellants.
19. Another important circumstance which the prosecution has put forth is that the appellant Vishnu Yadav with the help of others used to visit the house of the deceased when her parents were not present in the house. After going through the evidence of all the witnesses we find that none of the witness has stated that they had seen this appellant going to the house of the deceased even in absence of her parents. Thus this circumstance which the prosecution has put forth has also not been established and proved.
20. The prosecution tried to prove the place of occurrence and the presence of the appellants at the place of occurrence which is near the jungle through the Call Details Report. The Call Details Report and the certification under section 65B of Evidence Act though has been brought on record but the same has not been exhibited. It has only been marked "X" for identification. Since the certificate under section 65B of the Evidence Act has not been 11 exhibited, the Call Details Report cannot be looked into. Even if the same is considered, it will at best suggest that the appellants were talking with each other and nothing more. This stand-alone circumstance cannot be a ground to prove the guilt of the appellants.
21. It is further alleged that these appellants had molested the victim earlier, but there is no evidence in support of the said allegation. Though some of the PWs i.e. PW7, PW9 and PW12 had stated that earlier these appellants had molested the deceased but the fact of such molestation has not been mentioned in the FIR which suggests that the story of molestation, is an afterthought.
22. There were several injury marks on the person of the deceased which the prosecution tried to portray to be the act of the appellants, but from the evidence of the doctor it is clear that the doctor has opined that those marks are from dog bites as the marks of teeth are there on the dead body.
23. Surprisingly in this case there is no forensic examination. Neither the seized materials were sent to the Forensic Science Laboratory (FSL) nor any DNA test was conducted. Even the certification under section 65B of the Evidence Act was not exhibited. The investigation definitely is shoddy. In this type of cases where a girl was raped and murdered, it is expected that investigation should be scientific and with a mark of professionalism, more so, when the entire case is based on circumstantial evidence. In a slip-shod manner the investigation was conducted.
24. In a case which is based on circumstantial evidence it is well settled law that the entire chain of circumstances has to be proved and each of the circumstance also needs to be proved. If any one of the circumstances is not proved, the entire case has to 12 fail. In this case, we find that the circumstance of the last seen has not been proved and prosecution miserable failed to substantiate also the allegation that the girl was molested and these appellants used to visit with the help of other appellants to the house of this victim in absence of her parents. In absence of any DNA test or scientific investigation, the prosecution has failed to connect the offence of rape with these appellants. Non-exhibiting the certification under section 65B of the Evidence Act has also dealt a fatal blow to the prosecution case. Cumulative effect of all these leads to only one conclusion that the prosecution has not been able to prove the guilt of all these appellants beyond all reasonable doubt. Once the prosecution fails to prove their case beyond all reasonable doubt, the conviction of these appellants cannot be sustained nor they can be sentenced.
25. Thus we find merit in these appeals as the prosecution has not been able to prove the guilt of these appellants beyond the shadow of all reasonable and probable doubt.
26. In the facts and circumstances of the case, the conviction of the appellants of Criminal Appeal (DB) No. 382 of 2023, Criminal Appeal (DB) No. 422 of 2023 and Criminal Appeal (DB) No. 565 of 2023 under sections 376DA, 302/34, 201/34 and 120B IPC and section 6 of the POCSO Act vide judgment of conviction dated 04.02.2023 passed by learned Special judge, POCSO, Deoghar in POCSO Case No. 18 of 2020 is hereby set aside and accordingly the sentence awarded by the learned Trial Court vide order of sentence dated 25.02.2023 is also set-aside.
27. Criminal Appeal (DB) No. 382 of 2023, Criminal Appeal (DB) No. 422 of 2023 and Criminal Appeal (DB) No. 565 of 2023 are allowed.
1328. This Court directs all the above named appellants [Cr.A (DB) Nos. 382, 422 and 565 of 2023] to be released forthwith from custody, if not required in any other case.
29. In view of what has been held above, the instant Death Reference No. 3 of 2023 is answered in negative.
30. Let a copy of the judgment along with the Trial Court Records be sent back to the Court concerned forthwith.
(ANANDA SEN, J.) (GAUTAM KUMAR CHOUDHARY, J.) High Court of Jharkhand, Ranchi Dated: 10/09/2024 Tanuj/ .A.F.R. 14