Jharkhand High Court
Vijay Pandit vs The State Of Jharkhand on 20 April, 2023
Author: Subhash Chand
Bench: Sujit Narayan Prasad, Subhash Chand
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Against the judgment of conviction dated 14.03.2012 and
order of sentence dated 16.03.2012 passed by the Sessions
Judge, Koderma in S.T.No.99 of 2010)
Cr. Appeal (D.B.) No. 540 of 2013
1. Vijay Pandit, son of Somari Pandit
2. Rajesh Pandit, son of Late Gango Pandit
3. Sarita Devi, wife of Rajesh Pandit
4. Sita Ram Pandit, son of Bandhan Pandit
5. Bhagirath Pandit, son of Jagdish Pandit
6. Indra Devi, wife of Sita Ram Pandit
All resident of village-Purnadih, P.O. & P.S. Markacho,
District-Koderma. .... .... ....Appellants
-Versus-
The State of Jharkhand. .... ....Respondent
With
Cr. Appeal (D.B.) No. 429 of 2012
Nathan Turiya, son of late Mangar Turiya, resident of Village-
Purnadih, P.O. Fulwariya, P.S. Markacho, District-Koderma
.... ....Appellant
-Versus-
The State of Jharkhand .... ....Respondent
With
Cr. Appeal (D.B.) No. 473 of 2012
Ramdeo Pandey, son of Sarju Pandey, resident of village-
Ranideeh, P.S. Devri, P.O. Ghorangee, District-Giridih
.... ....Appellant
-Versus-
The State of Jharkhand .... ....Respondent
With
Cr. Appeal (D.B.) No. 774 of 2012
The State of Jharkhand through the Deputy Commissioner,
Koderma. .... ....Appellant
-Versus-
1. Vijay Pandit, S/o Somari Pandit, vill. Purnadih, P.O. & P.S.
Markacho, District-Koderma.
2. Rajesh Pandit, S/o late Gago Pandit, Vill. Purnadih, P.O. &
P.S. Markacho, District-Koderma.
3. Sarita Devi W/o Rajesh Pandit, Vill. Purnadih, P.O. & P.S.
Markacho, Dist. Koderma.
4. Sitaram Pandit S/o late Bandhan Pandit, Vill. Purnadih, P.O.
& P.S. Markacho, Dist. Koderma.
5. Ramdeo Pandey @ Pandit, S/o Late Sarju Pandey, Vill.
Ranidih, P.O. Deori, P.S. Markacho, Distt. Koderma.
6. Santoshi Kumari D/o Sitaram Pandit, Vill. Purnadih, P.O. &
P.S. Markacho, Distt. Koderma.
7. Bhagirath Pandit, S/o Jagdish Pandit, Vill. Purnadih,
P.O.&P.S. Markacho, Distt. Koderma.
2
8. Nathan Turiya, S/o Late Manjar Turiya, Vill. Purnadih, P.O.
& P.S. Markacho, Dist. Koderma.
9. Indira Devi W/o Sitaram Pandit, Vill. Purnadih, P.O. & P.S.
Markacho, Dist. Koderma. .... ....Respondents
With
Cr. Appeal (D.B.) No. 815 of 2012
Santoshi Kumari, daughter of Sitaram Pandit, resident of
village-Purnadih, P.O. & P.S. Markacho, District-Koderma.
.... ....Appellant
-Versus-
The State of Jharkhand .... ....Respondent
---------
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
For the Appellants : Mr. P.P.N.Roy, Sr. Advocate
[In Cr. Appeal (D.B.) No. 473 of 2012]
Mr. Jitendra Shankar Singh,Advocate.
[In Cr. Appeal (D.B.) No. 540 of 2013]
&
[In Cr. Appeal (D.B.) No. 815 of 2012]
Mr. A.K.Shani, Advocate
[In Cr. Appeal (D.B.) No. 429 of 2012]
Mr. Tripati Nath Verma, A.P.P.
[In Cr. Appeal (D.B.) No. 774 of 2012]
For the State : Mr. Amaresh Kumar, A.P.P.
[In Cr. Appeal (D.B.) Nos.473/12]
Mr. S.S.Choudhary, A.P.P.
[In Cr. Appeal (D.B.) No. 540 of 2013]
Mr. G.S. Prasad, A.P.P.
[In Cr. Appeal (D.B.) No. 429 of 2012]
Mr. T.N.Verma, A.P.P.
[In Cr. Appeal (D.B.) No. 815 of 2012]
---------
C.A.V. on 05.04.2023 Pronounced on 20.04.2023
---------
Per Subhash Chand, J.
Cr. Appeal (D.B.) No. 540 of 2023 is preferred on behalf of the appellants Vijay Pandit, Rajesh Pandit, Sarita Devi, Sita Ram Pandit, Bhagirath Pandit and Indra Devi, Cr. Appeal (D.B.) No. 429 of 2012 is preferred on behalf of appellant Nathan Turiya, Cr. ppeal (D.B.) No. 473 of 2012 is preferred on behalf of the appellant 3 Ramdeo Pandey, Cr. Appeal (D.B.) No. 815 of 2012 is preferred on behalf of the appellant Santoshi Kumari against the judgment of conviction dated 14.03.2012 and sentence dated 16.03.2012 whereby the appellants/convicts were sentenced to undergo imprisonment for life and to pay a fine of Rs. 3,000/- for having committed the offence punishable under Sections 302/34 of the Indian Penal Code and in default of payment of fine to undergo R.I. for two years, to undergo imprisonment for life and to pay a fine (individually) of Rs.3,000/- for having committed offence punishable under Sections 364/34 of the I.P.C. and in default of payment of fine to undergo R.I. for two years and to undergo rigorous imprisonment for seven years and to pay (individually) a fine of Rs. 1,000/- for having committed offence under Section 201/34 and in default of payment of fine to undergo R.I. for one year.
2. Cr. Appeal (D.B.) No. 774 of 2012 is on behalf of appellant State of Jharkhand through the Deputy Commissioner, Koderma against all the nine convicts aggrieved from the judgment of conviction dated 14.03.2012 and order of sentence dated 16.03.2012 passed by the court-below with the prayer to enhance the sentence of life imprisonment into the capital punishment.
3. All these appeals are against the common judgment of conviction and sentence which relates to the same case crime number (Markacho P.S. Case No. 27 of 2010). Therefore, all these appeals are decided with the common order.
4. The brief facts of the prosecution case leading to all these Cr. Appeals are that the informant Ishwar Sao @ Munshi Sao gave 4 the written information with the Police Station Markacho, District Koderma with these allegations that on 20.03.2010 when he had gone to his crusher situated at Karmatarn his wife told over the phone to him that his younger son Aman Kumar was missing and despite search no whereabouts of him was known. Having received this information he came to his house immediately and made hectic search every possible place of his son. It was 11:30 of day time his wife had told him that his son was missing since 10 O'clock. In this regard, he gave the missing report with the Police Station concerned of his son at 7 O'clock in the evening which was registered in General Diary at number 232/10 dated 20.03.2010. On 21.03.2010 he received a letter lying on the window of his old house in which a ransom of Rs. 90,000/- was demanded and it was also stated that if the information of the same was given to the Police Station, prepare the dire consequences of the same. Keeping in mind the life of his son, he did not inform in regard to that letter to the police station concerned. Again on 22nd March, 2010 another letter was issued in which it was stated to hand over the ransom immediately. On 24th March 2010 the police had called the sniffer-dog to make search of his son. After some hours the people of the village raised alarm that under the mango tree of Bhagirth and others something was kept in a gunny bag which was emitting foul smell. This mango tree was adjoining to the Bhagtin Mandap. In presence of the persons of the village, the gunny bag was opened and dead body of his son Aman was found. It appeared that some chemical had been sprinkled on the body. The hair of the forehead was shaved. There was also a wound below the left ear. Police also came there. Police 5 made investigation but no whereabouts of the accused was known. This written information was given against the unknown persons with the suspicion that the criminals were of Bhagtin Mandap or of nearby place who had kidnapped his son and committed murder of him and threw the dead body keeping the same in a gunny bag under the mango tree. On this written information, the case crime No. 27 of 2010 was registered against the unknown persons under Section 364,302 and 201 I.P.C. with the Police Station Markacho, District Koderma.
5. The I.O. investigated the matter and during investigation one witness Chinta Mani Devi told to the police that she had seen Rajesh Pandit throwing the gunny bag out of which the dead body of son of Munshi Sao was found under the mango tree. I.O. also after having recorded the statement of Chinta Mani Devi under Section 161 of Cr.P.C. also got recorded the statement of Chinta Mani Devi under Section 164 Cr.P.C. before the Judicial Magistrate. Thereafter he investigated the matter on the very line following the statement of Chinta Mani Devi and arrested eight accused, excluding Ramdeo Pandey, who confessed their guilt in regard to commission of the offence, in which they pleaded that they had sacrificed the body of the son of informant Munshi Sao to deity because each and every member of the family had fallen ill and on instigation of Indra Devi Bhagtin of the Durga Mandap that everything will be alright if a child was sacrificed to the deity. Therefore the confessional statement of all the eight accused Vijay Pandit, Rajesh Pandit, Sarita Devi, Sita Ram Pandit, Indira Devi, Bhagirath Pandit, Nathan Turiya, Santoshi Kumari were also 6 recorded under Section 161 of Cr.P.C. and the confessional statement of all these accused were also got recorded by the Judicial Magistrate under Section 164 of Cr.P.C. In the confessional statement of all these eight accused the name of Ramdeo Pandey also transpired showing his complicity in commission of the alleged offence and it was confessed by Santoshi Kumari before the Magistrate that the letters for ransom were got written by her father from her just to give colour to the case of kidnapping for ransom. Thereafter the I.O. filed charge-sheet against all the nine accused for the offence under Sections 364/302/201/120B of I.P.C. to the Court of C.J.M., Koderma. The C.J.M., Koderma after having taken cognizance on the charge-sheet committed this file to the court of sessions for trial and the court of Sessions Judge, Koderma further transferred the same for trial to Addl. Sessions Judge, 1st Koderma.
6. The Trial Court framed charge against all the nine accused for the offence under Section 364 read with 34, 302 read with 34, 201 read with 34 and under Section 120B of I.P.C. The charge was denied by all the accused persons and claimed to face the trial.
7. On behalf of prosecution to prove the charge against all the accused persons in oral evidence examined P.W.1 Arjun Sao, P.W.2 Manoj Sao, P.W.3 Shibu Pasi, P.W.4 Chinta Mani Devi, P.W.5 Arjun Singh, P.W.6 Suresh Pandit, P.W.7 Faudi Yadav, P.W.8 Surendra Prasad, P.W.9 Sahdeo Yadav, P.W.10 Sunita Devi, P.W.11 Panma Devi, P.W. 12 Jugal Pasi @ Julas Pasi, P.W.13 Babbun Sao, P.W.14 Muneshwar Pandit, P.W.15 Hemiya Devi, P.W.16 Ishwar Sao @ Munshi Sao, P.W. 17 Binod Rana, P.W.18 Manoj Rana, 7 P.W.19 Dr. Zaffar Hussan, P.W. 20 Bhola Yadav, P.W. 21 Dinesh Kumar, P.W.22 Dr. Awadhesh Kumar, P.W. 23 Sujit Kumar (Investigating Officer) P.W.24 Rajesh Murmu.
8. On behalf of prosecution in documentary evidence adduced seizure memo of the two letters Ext. 1 and 1/1, seizure memo of the sword in a wooden cover Ext. 1/2 and 1/3, postmortem report of deceased Aman Kumar Ext. 4, inquest report of deceased Aman Kumar Ext.8 as well, confessional statement of Rajesh Pandit Ext. 11, confessional statement of Santoshi Kumari Ext. 11/1, confessional statement of Indra Devi Ext. 11/3, confessional statement of Bhagirath Pandit Ext. 11/2, confessional statement of Sarita Devi Ext. 11/4, confessional statement of Vijay Pandit Ext. 11/5, confessional statement of Sita Ram Pandit, Ext. 11/6, photo copy of the letter for ransom Ext. 10 and Ext. 10/1, statement of Chinta Devi under Section 164 of Cr.P.C. recorded by Judicial Magistrate Ext. 5, confessional statement of Rajesh Pandit under Section 164 of Cr.P.C. Ext.6, confessional statement of Vijay Pandit Ext. 6/1, confessional statement of Sarita Devi under Section 164 Cr.P.C. Ext. 6/2, confessional statement of Santoshi Kumari Ext. 6/3, confessional statement of Indra Devi Ext. 6/4, confessional statement of Sita Ram Pandit under Section 164 Cr.P.C. Ext. 6/5, confessional statement of Bhagirath Pandit Ext. 6/6, confessional statement of Nathan Turiya Ext. 6/7, forensic examination report Ext. 14 along with the original letters for ransom and the specimen writing of Santoshi Devi, General Diary along with missing report dated 20th March 2010 given by informant Ishwar Sao Ext. 3. 8
9. The statement of all the accused persons under Section 313 of Cr.P.C. were recorded who denied the incriminating circumstances against them and also stated that all the eight accused persons who had confessed before the Judicial Magistrate have stated in their statement under Section 313 Cr.P.C. that the police had beaten them and tortured them and also outraged the modesty of their women. They were given 3rd degree treatment compelling them to confess the guilt. Chinta Mani Devi was a maid at the house of Inshwar Sao and Suresh Pandit had given evidence against them because be belonged to their family and had enmity of property dispute. It is also stated by Rajesh Pandit that police had also caused injury on his hand with the pin points to confess the guilt. The accused Ramdeo Pandey in his statement under Section 313 of Cr.P.C. stated that he was not involving in the alleged offence and his name transpired in the confessional statement of co- accused while he had no complicity in commission of the alleged offence.
10. In defence evidence on behalf of the accused persons filed the certified copy of the letter, Ext. A given to the Chief Judicial Magistrate dated 08.04.2010 forwarded through Jail Superintendent Koderma to C.J.M., Koderma. Letter written by the Counsel of the defence to the Jail Superintendent Division, Koderma Ext.B along with Medical Examination Report of all the accused persons Ext. A/2 to A/6 along with photograph of Rajesh Pandit Ext. A/7 and A/8. F.S.L. report marked Ext. Y. 9
11. On behalf of the accused persons in defence evidence D.W.1 Pramod Kumar, D.W.2 Jagdish Pandi, D.W.3 Martin Rajan Sha.
12. The learned Trial Court after hearing the rival submissions of the parties passed the judgment of conviction on 14.03.2012 and sentenced on 16.03.2012 as shown hereinabove.
13. Aggrieved from the impugned judgment of conviction and sentence all the appellants/convicts preferred the aforesaid appeals challenging the judgment of conviction and sentence passed by the court-below on the grounds that the impugned judgment of conviction and sentence passed by the court-below is based on wrong appreciation of the evidence. The finding of the court-below is perverse as the non-admissible evidence has been admitted by the court-below in convicting all the accused persons. There is no eye-witness of the occurrence. The case is based on circumstantial evidence. There is no link in chain of circumstantial evidence to indicate that the perpetrator of the crimes were the appellants. It is also further pleaded that the convicts/appellants have not made any confession. The alleged confession was the result of torture and 3rd degree treatment given to the appellants. No judicial remand was granted of the appellants before recording the confessional statement of the appellants/convicts as such the alleged confession was made in police custody and the guidelines laid down by the Hon'ble Apex Court to be followed while recording the statement of accused under Section 164 of Cr.P.C. were not complied by the Judicial Magistrate concerned while recording the statement. All the accused persons have retracted their confessions as such the same 10 cannot be relied upon but the learned Trial Court relied upon the confessional statement of the accused persons under Section 164 of Cr.P.C. and passed the impugned judgment of conviction and sentence. It also stated that the testimony of Chinta Mani Devi and Suresh Pandit could not be relied upon and same should not have been read as a corroborative evidence but the learned Trial Court relied upon these testimony who kept mum having seen the gunny bag throwing by Rajesh Pandit and did not disclose of the same to the informant Ishwar Sao @ Munshi Sao or any person of the village and on the next day after lodging F.I.R., they disclosed the same fact which cannot be relied as it was concocted and the statement given by these two witness Suresh Pandit and Chinta Mani Devi were tainted. Accordingly prayed to allow all these appeals and to set aside the judgment of conviction and sentence passed against all the appellants by the learned Trial Court and to acquit all the convicts.
14. Cr. Appeal (D.B.) No. 774 of 2012 was preferred on behalf of State of Jharkhand against all the appellants for enhancement of the sentence on the grounds that the learned Trial Court had passed the sentence of life imprisonment while it was brutal murder of an innocent child which shocks the very conscience of the society. In view of the brutal murder of innocent six year old child, it was a case of the rarest of the rare case and death sentence should have been passed to all the convicts.
15. We have heard the learned Counsel of all the appellants in the aforesaid appeals and learned A.P.P. and learned Counsel of informant Ishswar Sao and perused the material on record. 11
16. In order to decide the legality and propriety of the impugned judgment of conviction and sentence by the court-below, the evidence adduced on behalf of the prosecution oral and documentary and also defence evidence documentary and oral requires re-appreciation which are reproduced here-in-below:
17. On behalf of prosecution examine 24 prosecution witnesses.
18. P.W.1 Arjun Sao in his examination-in-chief says that the son of Inshwar Sao @ Munshi Sao was missing since 10 O'clock on 20th March, 2010. The missing report of the same was given at 7-8 O'clock of evening to the local police. Two letters were also for the ransom of the child were also found by informant Munshi Sao and on 24th March, 2010 the dead body of Aman Sao was found from the mango tree near the Durga Mandap kept in a gunny bag. This witness in his cross-examination says that he had not seen any of the accused persons committing the alleged occurrence and he stated that whatever he heard he gave the statement of the same.
19. P.W.2 Manoj Sao in his examination in chief says that the son of informant Munshi Sao namely Aman Kumar six years of was missing in between 10 to 10:30 of morning of 20th March, 2010. The child was kidnapped while he was playing under the jackfruit tree behind his house. Despite search no whereabouts of the child was known. On the 4th day the body of Aman was found kept in a gunny bag under the mango tree behind the Durga Mandap. The dead-body was also identified by informant and other person. One eye was missing. There was wound near the ear. The hair were also shaved from the forehead and acid smell was coming from the dead 12 body. This witness also stated that the accused persons Sita Ram Pandit, Bhagirath Pandit, Indra Devi, Santoshi Kumari, Rajesh Pandit, Vijay Pandit, Ramdeo Pandey, Nathan Turiya all had sacrificed the child to the deity.
In cross-examination, this witness says whatever he heard in regard to sacrifice of the child from the confession made by the accused persons he gave the statement of the same. He stated that he did not see the occurrence from his own eyes.
20. P.W.3 Shibu Pasi in his examination-in-chief says that the missing child of Munshi Sao was not found. The dead body was found in a gunny bag lying under the mango tree which was emitting foul smell. How the child was murdered he is not aware. This witness was declared hostile and in cross-examination he denied the statement under Section 161 of Cr.P.C. given to the Investigating Officer.
21. P.W.4 is Chinta Mani Devi. This witness in her examination-in-chief says the occurrence was of month of Chaitra. It was 12 O'clock of day time. Rajesh Pandit had thrown the dead body of the son of Munshi Sao under the mango tree which was kept in a gunny bag. She told in regard to throwing the gunny bag by Rajesh Pandit to the people of the locality. Rajesh Pandit is also of same locality. The son of Munshi Sao was missing for 4 to 5 days ago from the date of throwing the gunny bag under the mango tree. In presence of the persons of the locality the gunny bag was opened and dead body which was of the son of Munshi Sao, namely, Aman. It came to know that the child was sacrificed in the Durga Mandap who was sacrificed by Bhagtin, Rajesh Pandit and others. Her 13 statement was also recorded by the Judicial Magistrate which was read over and explained to her and she put her thumb impression on the statement. She very well identified Rajesh Pandit.
In cross-examination this witness says when Munshi Sao lodged the F.I.R.s he did not disclose the name of Rajesh Pandit to Munshi Sao or the Police. Police recorded her statement and she told to the police that Rajesh Pandit had thrown the dead body in a gunny bag. At that time she was going to bring water from the well when she saw Rajesh Pandit throwing the gunny bag under the mango tree. Between the house of her and the house of Rajesh Pandit there are four to five house in between. At the time when Rajesh Pandit was throwing the dead body, he had worn red Ganji (T.shirt) and full pant.
22. P.W.5 Arjun Singh in his examination-in-chief says that the son of Munshi Sao, Aman Kumar was kidnapped on 20.03.2010 at 10' clock day time. Despite search no whereabout was known of him. After three or four days on 24th March, 2010, the dead body was found kept in a gunny bag under mango tree near the Durga Mandap. All identified the dead body of Aman Kumar. It came to know that the child was sacrificed to deity. Two letters were also received by Munshi Sao in regard to demand of ransom of Rs.90,000/-
In cross-examination this witness say that he did not see from his own eyes the occurrence of sacrificing the child.
23. P.W.6 Suresh Pandit in his examination-in-chief says that the son of Munshi Sao, namely, Aman Kumar six years old was missing since 20th March, 2010. He was playing under the jackfruit 14 tree. The missing report was lodged in the evening of 20 th March, 2010. On 24th March 2010 at 12 O'clock he was going to the market. At the same time he saw Vijay Pandit handing over the gunny bag from the boundary wall of Durga Mandap to Rajesh Pandit who was standing outside the boundary wall of Durga Mandap and Rajesh Pandit placed the same gunny bag under mango tree which was adjoining to the Mandap. He became curious. He went to see the gunny bag but it was emitting foul smell. After half an hour thereof so many persons of the village and police also came there and found the dead body of Aman out of the gunny bag. This witness in his examination-in-chief says that on 24.03.2010 he was going to purchase vegetables and articles for worship. Since the foul smell was coming from gunny bag he went to his house. He did not tell in regard to throwing the gunny bag by Rajesh to anyone. The mango tree was outside the boundary wall of Mandap at the open place. He is familiar with Vijay Pandit and Rajesh Pandit since his childhood. Both Vijay Pandit and Rajesh Pandit are his cousin uncle. He has visiting terms with them. At the time of handing over the gunny bag by Vijay Pandit to Rajesh Pandit he did not have any doubt in regard to his complicity in commission of the murder. At that time Rajesh Pandit was wearing T.Shirt of red colour and half pant. At the time of opening the gunny bag so many persons of the locality were present. He did not tell to anyone that the gunny bag was thrown by Rajesh Pandit because he was fear stricken.
24. P.W.7 Faudi Yadav in his examination-in-chief says that the two letters which were handed over by Munshi Sao the recovery 15 memo of the same was prepared by the I.O. in his presence he took his signature thereon.
In cross-examination this witness says that he is giving the statement before Court what the accused persons had confessed before the police. He did not see the occurrence from his own eyes.
25. P.W.8 Surendra Prasad in his examination-in-chief says that the six years old son of Ishwar Sao was missing. The letter for the ransom of the child was also read by him. The another letter was also handed over by Chhoti Rana in which Munshi Sao was asked to place the ransom amount in the koli near the Bhagirath Pandit. The money was also placed by Munshi Sao but no one took the same from there. On 24th March, 2010 near Indra Devi Mandap under the mango tree a gunny bag was found. The sniffer-dog also came who sniffed Indra Devi, Bhagirath Pandit, Sita Ram Pandit, Santoshi Kumari who were arrested by the police. They found the gunny bag. The dead body was also recovered which was of Aman. All the accused persons had confessed their guilt. Santoshi Devi also stated that she wrote the letter at the behest of her father Sita Ram Pandit for ransom which was in her handwriting. The police also recovered the knife/sword which was used in commission of the murder in his presence. He stated in regard to the occurrence of sacrifice whatever the accused persons had confessed before the police.
26. P.W.9 Sahdeo Yadav in his examination-in-chief says that all the accused persons confessed their guilt in his presence before the police. The dead body of the son of Munshi Saw was 16 found out of the gunny bag which was placed under the mango tree. The hair of the child were shaved. One eye was missing.
In cross-examination with witness says he did not see Santoshi Kumari writing the letter in his presence.
27. P.W.10 Sunita Devi is the mother of deceased and wife of informant. This witness in her examination-in-chief says Aman six years old was her son. On 20th March, 2020 her son was missing from 10 O'clock. She informed to her husband at 11 O'clock. Her son was playing under the jackfruit tree nearby her house. Her husband came at 11:30. Despite search no whereabouts of the son was known at 7 O'clock in the evening, the missing report was given to the Police Station concerned by her husband. On 21st March, 2010 letter was received in which demand of 90,000/- rupees was made as ransom. Again on 22nd March, 2010 another letter was received her husband was asked to pay the ransom immediately. Her husband also placed the money but same was not taken by anyone. The sniffer-dogs were called from the dog squad by the police. For three months before the occurrence Indra Devi and Santoshi Kumari used to give biscuit and rice to her child. On the date of occurrence Indra Devi came to her and told that she will get her son as she was seen her son in a mirror who was playing and taking meal. Sita Ram Pandit, Santoshi Kumar also came along with Indra Devi to her house. They also told why they had informed to the police she would get her son. Bhagirath Pandit had also announced on mike in regard to missing of the child. One gunny bag was found under the mango tree near the Mandap. Out of which the body was recovered that was of her son Aman. His hair were 17 shaved. There was wound near the ear. One eye was missing. She became unconscious seeing the dead body of her son. All the accused persons had confessed before the police that they had sacrificed the child to the deity. Nathan Turiya was beating drum. Indra Devi and Ramdeo Pandey were chanting the mantras while Sarita Devi was signing. Rajesh Pandit, Vijay Pandit and Sita Ram Pandit had sacrificed the child. The knife used in murder, the underwear, the missing eye were also recovered by the police from the Mandap. She became unconscious.
In cross-examination this witness says that sniffer-dog came. Firstly he went to the roof of Indra Devi. Thereafter he caught the cloths of Indra and Sita Ram. She had seen the sniffer-dog from her own eye doing that. The Durga Mandap was very old and nearby it are the house of Bhagirath Pandi, Rajesh Pandit, Vijay Pandit, Sita Ram Pandit. The boundary wall was of the Durga Mandap and at the distance of four pace from the Mandap was the mango tree.
28. P.W.11 Panma Devi in her examination-in-chief says that Ishwar Sao @ Munshi Sao was her brother-in-law (Devar). The six years old son of Munshi Sao was missing when he was playing under the jackfruit tree. Till evening no whereabouts of the missing child was known. At 7 O'clock in the evening missing report was given to the police station. On 21 March, 2010 one letter and on 22nd March, 2010 another letter for ransom was received by the informant in which demand of ransom was made. Dead body of Aman was found out of the gunny bag which was placed under the mango tree. Suresh Pandit and Chinta Devi both had seen. Both told on 25th March, 2010 that they had seen Rajesh Pandit placing 18 the gunny bag under the mango tree which was handed over to Vijay Pandit by Rajesh Pandit from the boundary wall of Mandap.
In cross-examination this witness says all the accused persons had confessed their guilt that they had sacrificed the child to the deity in Mandap. The police did not torture to any of accused persons rather they confessed their guilt voluntarily. She had not seen the occurrence of sacrificing from her own eye. She did not see the sniffer-dog catching hold of the cloths of the accused.
29. P.W. 12 Jugal Pasi @ Julas Pasi was declared hostile.
30. P.W. 13 Babbun Sao in his examination-in-chief says that 5 to 6 years old son of Munshi Sao was missing since 20th March, 2010 from 10-11 O'clock of day time. No whereabouts was known of the child despite search in the evening. Munshi Sao informed to the police in regard to missing of the child. Bhagirath also announced on the mike in regard to missing of the child. The two letters in regard to ransom of 90,000/- rupees was also received by informant Munshi Sao. Dead body was recovered out of the gunny bag from the mango tree which was identified to be of Aman. The sniffer-dog was also seen by her making search of the accused. All the accused persons confessed their guilt before the police in his presence and in presence of the villagers.
In cross-examination this witness says that he had not seen the occurrence of sacrificing from his own eyes. He only saw the dead body.
31. P.W. 14 Muneshwar Pandit in his eamintion-in-chief says that six years old son of Munishi Sao was missing whose dead 19 body was recovered from the gunny bag which was placed under the mango tree.
In cross-examination this witness says that he had heard in the village that the dead body was thrown by the accused persons.
32. P.W. 15 Hemiya Devi in her examination-in-chief says that dead body of the missing son of Munshi Sao was found out of the gunny bag which was placed under the mango tree.
In cross-examination this witness says that she did not see the occurrence whatever she heard from the accused persons confessing before the police. She stated the same before the Court.
33. P.W.16 Ishwar Sao @ Munshi Sao is the informant. This witness in his examination-in-chief says that at 10 O'clock of day time he received the phone call of his house at his Crusher Karmatarn on 20th March, 2010 wherein he was informed that his son Aman six years old was missing. He reached to his house along with Arjun Mahto and made search of his son but no whereabouts of his son was known. He gave the missing report of his child to the police station in the evening on 20th March, 2010. On 21st March, 2010 one letter was received in which 90,000/- rupees as ransom was demanded. On 22nd March, 2010 another letter was received in which he was asked to place the amount in the Koli nearby Bhagirath Pandit and Ram Ji Pandit. On 23rd March, 2010 he placed the amount at the indicated place but no one came to take the amount. Neither his son was found nor the money was taken by anyone. He took up the money back. On 24th March, 2010 the police called the sniffer-dog on the very day at 12 O'clock nearby the 20 Mandap under the mango tree a gunny bag was found which was emitting foul to smell. The gunny bag was opened out of which the dead body of his son was found. He identified the dead body of his son. The hair were shaved from the forehead. His tongue was also slit. Something was stabbed near the left ear. The sniffer-dog also went to the Mandap. He sniffed to Sita Ram Pandit, Bhagirath Pandit, Indra Devi also went to their house. He gave the written information to the Police Station on 24th March, 2010 which is marked as Ext.2. This written information was in the handwriting of Vijay Sao. He put his signature thereon. The two letters, recovery memo is Ext. X and Ext. X-1. The missing report of his son which was given by him on 20th March, 2010 on which coloured photo of his son was also affixed by him was registered with station diary of the Police Station Markacho at Sl. No. 232/10 on 20th March, 2010 which is marked Ext.3.
In cross-examination this witness says he handed over the both the letters to the police in presence Faudi Yadav and Surendra Prasad. It was told by Chinta Mani Devi to police that on 24th March, 2010 at about 12:30 while she was going to the well to bring the water she had seen Rajesh Pandit placing the gunny bag under the mango tree. On 25th March, 2010 the police made queries from Vijay Pandit, Rajesh Pandit. It was also told by Suresh Pandit that he had seen Vijay Pandit handing over the gunny bag to Rajesh Pandit who placed the same under the mango tree nearby the Mandap. He also stated that all the accused persons have confessed their guilt in what way and manner they sacrificed his six years old child to deity. All the accused persons confessed their guilt before 21 the police without any pressure. Santoshi also confessed that her father Sita Ram Pandit had asked her to write those letters for ransom. Both the letters were in her handwriting. Sita Ram Pandit had given the stabbed wound with the knife/sword. The same was also recovered. Recovery memo of the same was prepared in presence of Vinod Rana and Manoj Rana from the Mandap. Rajesh Pandit and Vijay Pandit stated before the police that Indra Devi their aunty had told that to be happy to sacrifice the child to the deity. On 26th March, 2010 all the accused persons also confessed their guilt before the Judicial Magistrate. This witness says that he did not see the occurrence of sacrificing of his own eyes. Chinta Devi and Suresh Pandit told that they had seen Rajesh Pandit placing the gunny bag under the mango tree to the police on the next day of lodging F.I.R. All the accused persons confessed their guilt before the police without any pressure. This witness denied all the suggestions given by the defence witness that the accused persons were tortured by the police. Even the petrol was thrown on the private part was also denied by this witness. This witness denied that any 3rd degree treatment was given to the accused persons before confessing their guilt. This witness also says that around the Durga Mandap there were the house of the accused persons. The boundary wall of the Durga Mandap was about 5' height.
34. P.W.17 Binod Rana is the witness of the recovery memo of the sword/knife (Ext.1/2) which was recovered by the police on the confessional statement of the accused from the Mandap. 22
In cross-examination this witness also says that the little blood was also found on the sword which was recovered by police in possession from the Mandap.
35. P.W.18 Manoj Rana is also the witness of the recovery memo of the sword. He proved the recovery memo Ext. 1/3.
36. P.W.19 Dr. Zaffar Hussan is the witness of the postmortem report of the deceased. In his examination-in-chief he says that on 25th March, 2010 he was Medical Officer at Sadar Hospital, Koderma. At the requisition of Markacho Police Station the Medical Board of three Doctors comprising of Dr. Awadhesh Kumar, Dr. Shiv Kumar and himself was constituted to conduct the postmortem of deceased Aman son of Ishwar Sao. He conducted the postmortem on 25th March, 2010. There were following external injuries:
i. Only a tuft of hair on the posterior occiput was found.
ii. Both eyes were absent.
iii. Rigor mortis absent.
iv. Mouth open.
v. External genitalia intact.
vi. Few maggots present on right leg. vii. Whole body was decomposed.
In their opinion the probable cause of the death was head injury.
Time lapsed since death approximately within 4-5 days of examination.
This postmortem report was prepared by him. It contains the signature of Dr. Awadhesh, Dr. Shiv Kumar and himself. He identified those signatures. This postmortem report is marked as Ext.4.23
In cross-examination this witness says that no photography was taken at the time of conducting the postmortem examination.
37. P.W.20 Bhola Yadav is the witness of the inquest report. He says that the inquest of the deceased Aman was prepared in his presence. He identified his signature marked Ext.1/4.
38. P.W.21 Dinesh Kumar is the Judicial Magistrate, 1st Class, Koderma. In his examination-in-chief says on 25th March, 2010 he was posted as Judicial Magistrate, 1st Class at Koderma Civil Court. On that day on the direction of Chief Judicial Magistrate he recorded the statement of witness Chinta Devi under Section 164 of Cr.P.C. The statement of Chinta Devi under Section 164 Cr.P.C. is in his handwriting and signature. This statement was read over and explained to Chinta Devi and she put her thumb impression thereon, same is marked as Ext.5.
On 26th March, 2010 the accused Rajesh Pandit, Vijay Pandit, Sarita Devi, Santoshi Kumari, Indra Devi, Sita Ram Pandit, Bhagirath Pandit and Nathan Turiya all also confessed their guilt. The confession of all were recorded by him on the direction of Chief Judicial Magistrate, Koderma. He recorded the confession of all the eight accused one by one. All the accused persons were asked to reconsider before confession. He also stated to each and every accused that they were not bound to confess their guilt. All the accused persons were explained that the confession could be used against them so they were not bound to confess their guilt but all the accused persons stated that they willingly want to confess the guilt. They have no pressure of any kind. The confession of each 24 and every accused was read over to each accused and same was explained to them thereafter took the signature of the accused persons who had confessed their guilt. He also gave his certificate as per requirement of Section 164 of Cr.P.C. at the foot of their statement. The confessional statement of all the accused persons are marked Ext.6, 6/1 to 6/7.
In cross-examination, this witness says that at the time of recording confessional statement, Counsel of the accused appeared at that time. Even no power of any accused was misused by him. This witness identified the statement of witness Chinta Devi and confession of all the accused under Section 164 of Cr.P.C. He also stated at the time of recording the statement and confession no one was in the court room except the employee of the Court. The police was not present there. He had recorded the statement of all the accused on the direction of Chief Judicial Magistrate on 26 th March 2010 and after recording the statement of all the accused persons their statements were remitted to the Chief Judicial Magistrate. All the accused persons had stated that they were confessing their guilt willingly without any pressure. He recorded the statement of each and every accused one by one while recording the statement of one accused, others were sitting with the staff of the court. None of the accused persons had told to him that they were tortured by the Police. All the accused persons before recording the statement were given opportunity to think over before to confess their guilt. On being satisfied that the accused persons confessed their guilt willingly, he recorded the confession of them. He had also warned each and every accused that the confession might be used 25 against them in evidence. In reply to the question whether the accused persons were in police custody or judicial custody while he recorded the statement this witness stated that he recorded the statement of each accused in compliance of the order passed by the Chief Judicial Magistrate which stated therein in the order itself.
39. P.W.22 is Dr. Awadhesh Kumar who also stated that he was also the member of the Medical Board in conducting the postmortem of deceased Aman Kumar. The postmortem report was prepared by Dr. Zaffar Hussan. He and Dr. Shiv Kumar and Dr. Zaffar put their signature thereon.
40. P.W.23 is Sujit Kumar, Investigating Officer. This witness in his examination-in-chief says that on 20th March, 2010 and 24th March, 2010 he was posted as Sub-Inspector In-charge of the Markacho Police Station. On 20.03.2010 he received the missing report from Ishwar Sao of his six years old child. He made the entry of the same in the Station Diary which was recorded at 232/10 on 20th March, 2010. This entry was prepared by Munshi Hemlal Yadav. Again this witness says that it was in the writing of Choukidar Santosh Kumar. He identified his hand writing of Santosh Kumar. Sanha entry is marked Ext.7.
After recording the Sanha, they made search of the child. Sniffer-dog was also called from the Dog Squad. On 24th March, 2010 under the mango tree a gunny bag was found which was emitting foul smell in presence of the informant and the people of the village gunny bag was opened. The dead body of the son of the informant was found. Inquest of the same was prepared in presence of witness Arjun Sao and Bhola Yadav which is marked Ext. 8. On 26 the basis of the written information of informant, the F.I.R. was lodged at the police station. Formal F.I.R. was prepared by Ram Ji Singh, Assistant Sub Inspector. He also put his signature as a Station Officer of the Police Station marked Ext.9. The signature of Munshi Sao are identified by him marked Ext.10.
In cross examination this witness says that both the letters were handed over to him on 24th March, 2010. The seizure memo of these letters was prepared in presence of Faudi Yadav and Surendra Prasad which is marked Ext.10. He also inspected the place of occurrence nearby the place of occurrence from where the dead body was recovered was Devi Mandap at the distance of 25 yard was the house of Saghan Turi and Nathan Turi. He also prepared the map from where the child was kidnapped under the jackfruit tree nearby the house of informant. He recorded statement of Chinta Mani Devi on 25th March, 2010 who told that she had seen Rajesh Pandit throwing the gunny bag under the mango tree while had gone to the well to bring water. Suresh Pandit has also told that he had seen Vijay Pandit handing over the gunny bag to Rajesh Pandit who placed the same under the mango tree. He also got recorded the statement of Chinta Mani Devi under Section 164 of Cr.P.C. Thereafter the accused persons were arrested by him. All the accused persons on 25th March, 2010 confessed their guilt in presence of villagers without any pressure. The confessional statement of all the eight accused except Ramdeo Pandey are Ext. 11/1 to 11/6. All the accused persons have confessed their role in their confessional statement. He also prepared the seizure memo of the sword in presence of witness Manoj Rana and Vinod Rana 27 marked Ext. 10/1. He also proved the sword material Ext.1 before the Court. He also stated that he also got recorded the statement of all the eight accused persons under Section 164 of Cr.P.C. by the Judicial Magistrate on 26th March, 2010 and after concluding the investigation he filed charge-sheet.
In cross examination this witness says that before lodging of the F.I.R. help of sniffer-dog was taken by him. While lodging the F.I.R. the informant has not shown any doubt against any accused. He recorded the confessional statement of Santoshi Kumari, Bhagirath Pandit, Indra Devi and of the remaining accused the statement was recorded by Assistant Sub-Inspector Ram Ji Singh. The F.I.R. was lodged on 24th March, 2010. The sniffer-dog were brought from the Dog squad of Hazaribag. The sniffer-dog made search for two hours. The sniffer-dog did not reach to any of the accused. But the sniffer-dog were of indirect help in the investigation. The sword/knife which was recovered from the Mandap was not sent to F.S.L. for examination. The cloth which the deceased had worn were the same which are shown in the missing report. Their colour faded because of chemical which might have been thrown on the dead body. The dead-body was recognized by him, his wife and other persons of the village. Chinta Mani Devi had told that while she had gone to the well to bring the water she had seen at the distance of 50 yard Vijay Pandit handing over the gunny bag to Rajesh Pandit who was out of the boundary wall. The hand writing specimen of Santoshi Kumari was taken by the Chief Judicial Magistrate. The two letters were sent to F.S.L., Calcullta but the F.S.L. report was received back without any definite opinion. 28 The F.I.R. was seen by the Chief Judicial Magistrate on 25th March, 2010. He also recorded the statement of Suresh Pandit but no statement of Suresh Pandit was recorded under Section 164 of Cr.P.C. by the Magistrate. In the inquest of the deceased the left eye of the deceased is shown missing but in postmortem report both the eyes are shown absent. He got recorded the confessional statement of all the eight accused persons under Section 164 of Cr.P.C. before the Judicial Magistrate, Koderma. He did not give any 3rd degree treatment to any of the accused and did not compel any of the accused persons to confess their guilt. He did not cause any injury to Rajesh Pandit and he did not throw the petrol in the private part of the accused persons. He did not mention the height of the boundary wall of Mandap but it was 3' height in his view. This statement of Sunita Devi is wrong that the tongue and cloths of the deceased were recovered from the Mandap. It is wrong to say that he had tortured Chinta Devi to give statement against the accused persons. At the time of recovery of the dead body Suresh Pandit and Chinta Devi both were present but they did not disclose the name of any accused at that time to him. The case number was also mentioned on the paper which was affixed on the recovered sword but the same is not at the time of production before the court. It might have been missed during the process. It was kept in the Malkhana. Suresh Pandit has told him that he had seen Vijay Pandit handing over the gunny bag to Rajesh Pandit who placed the same under the mango tree. The arrest memo of all the accused persons were prepared by him on 25th March, 2010. Accused 29 Ramdeo Pandit surrendered before the Court. Therefore, his statement under Section 164 of Cr.P.C. was not got recorded.
41. P.W.24 Rajesh Murmu proved the formal F.I.R. Ext.12. He stated that the same is in hand writing of Hem Lal Yadav who had been deployed along with him. He also identified the signature of Station officer Sujit Kumar on the formal F.I.R. The para 1 to 141 of the case diary are in hand writing of Sujit Kumar. He identified the same which is marked Ext. 13. Court witness Sujay Saha stated that he was posted as Deputy G.E.R.D. in the office of C.F.S.L., Kolkata. The original letters along with the specimen hand writing of the author of the letter were received for comparison in the F.S.L. The report of the same is on record. In this report he had expressed the opinion on 23rd September, 2011 that it was not possible to express the definite opinion regarding the authorship of the writing marked on Q1 to Q6 in comparison with the writings of mark A1, A2, A2/1, A3 to A6, B1 to B6 and C1 to C6. None of the defence counsel cross-examined from this witness.
42. Mr. P.P.N. Roy, learned Sr. Counsel appearing for the appellant Ramdeo Pandey had submitted that there is no evidence against the appellant Ramdeo Pandey to show his complicity in commission of the alleged offence except the confessional statement of the co-accused and same is not admissible in evidence. Nothing is in corroboration of the confessional statement of the co-accused to show the complicity of the appellant Ramdeo Pandit in commission of the alleged offence. The conviction and sentence passed by the court-below against this appellant is based on 30 perverse finding which is not based on any cogent evidence. The learned Counsel for the appellant relied upon following case laws:
1971 Cr. Law Journal 747 2009 Cr. Law Journal 114 1992 Cr. Law Journal 2190
43. The learned Counsel appearing for the appellant Nathan Turiya has submitted that though the confessional statement of Nathan Turiya was recorded by Judicial Magistrate under Section 164 of Cr.P.C. In that statement Nathan Turiya had simply stated that he used to beat drum at the Mandap. On the day of occurrence, he was also beating the drum. He was not aware in regard to the alleged occurrence. So far as the other witnesses are concerned no one has attributed any role to Nathan Turiya except that Nathan Turiya was beating drum in the Mandap. Nathan Turiya used to beat the drum in the Mandap in order to earn his livelihood. He had no concern with the alleged occurrence of sacrifice of the child of informant. There is no other evidence against him to show his complicity in commission of the alleged offence. The conviction and sentence passed by the court-below against this appellant is based on perverse finding which is not based on any cogent evidence.
44. Learned Counsel appearing for the appellant Santoshi Kumari has submitted the only role assigned to Santoshi Kumari is writing the ransom letter at the behest of her father Sita Ram Pandit. The confessional statement of Santoshi Kumari was also recorded by the Judicial Magistrate in which she has not shown any complicity in commission of the offence except that the ransom letters were written by her at the behest of her father Sita Ram Pandit. There is no other evidence against Santoshi Kumari to show 31 his complicity in commission of the alleged offence. The conviction and sentence passed by the court-below against this appellant is based on perverse finding which is not based on any cogent evidence.
45. Mr. Jitendra Shankar Singh, the learned Counsel of the appellant Vijay Pandit, Rajesh Pandit, Bhagirath Pandit, Sarita Devi, Indra Devi, Sita Ram Panit has submitted that the prosecution case is based on circumstantial evidence. The chain of the circumstantial evidence is not complete in itself. The chain of circumstantial evidence is also broken at the time when the ransom letters were not proved as per F.S.L. report to be in hand writing of Santoshi Kumari. So far as confessional statement of the eight accused including the present appellants are concerned all the accused persons were tortured by the police. The modesty of the women accused was also outraged by the police. 3rd degree treatment was given to all these accused persons. Even the Kanti was also put in the hand of Rajesh Pandit to confess the guilt. The confessional statement made by accused persons were given under the police pressure and on being tortured by the police. The confessional statement being not voluntarily and free from pressure was not admissible in evidence. It is also further submitted that the confessional statement of the accused persons were not admissible in evidence as were recorded by the Judicial Magistrate while they were in police custody. Prior to recording the statement of the confessional statement of all the eight accused persons, no remand was granted by the Chief Judicial Magistrate to take the judicial custody of all the accused persons. First of all they were sent for 32 recording statement under Section 164 of Cr.P.C. to Judicial Magistrate. As such the custody being illegal the confessional statement recorded by the Judicial Magistrate was not admissible in evidence. Moreover, no time was given to the accused persons to think over before making the confession as at the time of recording the statement they were very much in police custody. The police had tortured them. No such questions were put up by the Judicial Magistrate while recoding the confessional statement of the accused persons and no sufficient time was given them before recording the confessional statement of the accused persons. It is also further submitted by the learned counsel of these appellants that so far as the testimony of Chinta Devi whose statement under Section 164 of Cr.P.C. was also recorded and testimony of P.W.6 Suresh Pandit is concerned, the testimony of both these witnesses cannot be relied upon since Chinta Devi was the maid at the house of informant Munshi Sao and Suresh Pandit was having the property enmity with the accused persons who belonged to their family. The testimony of Chinta Devi and Suresh Pandit cannot be relied upon because if they had seen Rajesh Pandit placing the gunny bag from which the dead body of the missing son of informant was recovered on 24th March, 2010; why did they not disclose the same to informant Munshi Sao or the police at the time of lodging the F.I.R. which was lodged on 24th March, 2010 against the unknown persons rather these witnesses disclosed in regard to the occurrence on the next day 25th March, 2010. Therefore, the conduct of these two witnesses Suresh Pandit and Chinta Mani Devi being unnatural their testimony cannot be relied upon. This case is based on 33 circumstantial evidence. The chain of the circumstantial evidence is not complete in itself. So far as the evidence of sniffer-dog is concerned as per statement of I.O. the sniffer-dog could not reach to any of the accused; though contrary statement were given by Sunita Devi wife of informant Munshi Sao and other witnesses that the sniffer-dog had caught the cloths of the accused persons. As such the same cannot be relied upon. None of the witness examined on behalf of the prosecution has stated that he had seen the occurrence of sacrificing the child to deity. The only evidence against the appellant is the confessional statement which is not admissible in evidence which was not recorded in view of the guidelines of Hon'ble Apex Court and same has no corroboration of any other evidence. Therefore the conviction and sentence of all these appellants are based on perverse finding and same needs to be set aside and submitted to allow the appeal and acquit all the appellants. It is also further submitted that all the accused persons had retracted from the confession in their statement given under Section 313 of Cr.P.C. Therefore, the confession of the accused persons cannot be relied upon. In support of their submissions, the learned Counsel for the appellant relied upon following case laws:
i. Narendrasinh Keshubhai Zala vs. State of Guzrat, 2023 S.C.C. online S.C. 284 para 11.
ii. Bodh Raj @ Bodha And Ors. vs. Jammu and Kashmir, 2002 (8) SCC 45 iii. Cr. Jail Appeal (D.B.) No.143 of 2010 (Lukhi Ram Murmu vr. tate of Jharkhand) Jharkhand High Court Division Bench judgment dated 02.12.2017 iv. Ejazhusen Sabadarhusen vs. State of Gujrat, A.I.R. 2019 S.C. 1525 34
46. Per contra the learned A.P.P. and learned Counsel for the informant had submitted that the impugned judgment of conviction and sentence passed by the court below is based on cogent and reliable evidence. Out of the nine accused, eight accused persons had willingly confessed their guilt before the police and also before the Judicial Magistrate under Section under Section 164 of Cr.P.C. The Judicial Magistrate before recording the statement has followed all the guidelines laid down by the Hon'ble Apex Court. The Judicial Magistrate who recorded the confessional statement was also examined on behalf of the prosecution who has proved the confessional statement of all the accused persons who had confessed their guilt voluntarily without any pressure and the Judicial Magistrate had also warned to all the accused person before recording their statement separately that if they confess the guilt it would be used as evidence against them. After being satisfied that the confession were being given by all the accused persons voluntarily and willingly without any pressure the statement was recorded by Judicial Magistrate. The certificate was also issued on statement of each of the accused persons at the foot of the statement recorded by the Judicial Magistrate P.W.21 Dinesh Kumar. It is also further submitted that the testimony of Chinta Mani Devi whose statement was also recorded under Section 164 of Cr.P.C. by Judicial Magistrate which was also proved by P.W.21 Dinesh Kumar. This witness was examined before the Trial Court as P.W.4. P.W.4 Chinta Mani Devi has corroborated her statement given to the I.O. under Section 161 of Cr.P.C. and also 164 of Cr.P.C. given before the Judicial Magistrate. Moreover P.W.6 Suresh Pandit also 35 corroborated the prosecution story. He had seen Vijay Pandit handing over the gunny bag in which the dead body of deceased was kept to Rajesh Pandit from the boundary wall of the Mandap. He had seen Vijay Pandit and Rajesh Pandit while he was going to market and he also saw Rajesh Pandit placing the same under the mango tree. He also went to gunny bag which was emitting very foul smell so he straightway went to his house. The testimony of both these witnesses cannot be disbelieved because on the very next day of lodging F.I.R. their statement was recorded by the I.O. and statement of Chinta Mani Devi was also recorded by Judicial Magistrate. Therefore, there is no occasion to disbelieve the testimony of these two witnesses. So far as the motive of the occurrence is concerned, the motive is that, the family members of the accused persons were ill and in order to make their life happy Indra Devi had suggested other accused to sacrifice of any child to deity. With this motive all the accused persons under a conspiracy and also in furtherance of common intention had sacrificed the child. P.W.10 Sunita Devi mother of deceased has stated that her six years old child was playing under the jackfruit tree on 20th March, 2010 and was missing since 10'clock of day time. For three months before missing of the child Indra Devi and Santoshi Kumari both used to give biscuit to her son. On the date of occurrence Indra Devi along with Sita Ram Pandit and Rajesh Pandit came to her house and Indra Devi had told that she had seen the son in a glass taking milk and also playing. This conduct of the accused persons also give the link in the circumstantial evidence. Moreover, the oral evidence is also corroborated with the medical evidence. Whatever 36 discrepancy is there i.e. of minor in the inquest report and the postmortem report. As the postmortem report is prepared by the expert and inquest report is simply the prima facie evidence of cause of death as per apparent looking of the dead body. So far as the confession of the accused persons is concerned, first of all the accused were produced before the Chief Judicial Magistrate who on the very day put the accused persons in judicial custody and referred them to record the statement to the another Judicial Magistrate under Section 164 of Cr.P.C. On the very same day the judicial remand was also granted. Therefore, there is no illegality in granting the remand and recording the statement of the accused persons under Section 164 of Cr.P.C. It is also further submitted that no 3rd degree treatment was given to the accused persons. They did not retract from their statement before the Judicial Magistrate while recording the statement under Section 164 of Cr.P.C. The Judicial Magistrate found no apparent injury on body of any of the accused person. For the first time the accused persons gave the application to the C.J.M. concerned on 09.04.2023 in which they complained that they were given 3rd degree treatment. Same was sent through the Jail Superintendent of the Jail concerned on the advice of their counsel. The accused persons also retracted from the confession under Section 313 of Cr.P.C. But in defence evidence they did not produce themselves to show that the police had given 3rd degree treatment to them to compel to give the confessional statement. The confessional statement is admissible in evidence which has been proved by P.W.21 Dinesh Kumar. In support of their confession relied on following case law:
37
i. Sankaria vrs. State of Rajasthan 1978(3) S.C.C. 435 ii. HENRY WESTMULLER ROBERTS VS. State of Assam 1985(3) SCC 291
47. The instant case is based on circumstantial evidence. As per prosecution case the son of informant Ishwar Sao @ Munshi Sao was missing since 10 O'clock of 20th March, 2010 while he was playing under the jackfruit nearby the house of informant. The missing child of the informant was six years old. The missing report of the same was lodged by informant on the very day 20 th March, 2010 after making search at every possible place in the evening at 7 O'clock. This missing report of the son of informant has been proved by P.W.16 Inshwar Sao @ Munshi Sao. The entry of the same was made with the Police Station concerned in General Diary No. 232/10 on 20th March, 2010 which is marked as Ext.3. The same has also been proved by the I.O. P.W.23 Sujit Kumar. The G.D. entry of the same has been proved in General Diary by producing General Diary by the I.O. P.W. 23 Sujit Kumar Ext.7
48. Thereafter the search was made of the missing child on 21.03.2010, 22.03.2010 and 23.03.2010. On 24th March, 2010 the informant Ishwar Sao P.W. 16 asked to the Police Officer P.W. 23 to search his missing child whereabouts of whom was not known for four days. P.W. 23 Sujit Kumar I.O. also called the sniffer-dog from the dog squad at Hazaribag. The sniffer-dogs as per evidence adduced on behalf of the prosecution also reached to the Mandap but as per testimony of P.W.23 I.O. till lodging the F.I.R. the sniffer- dog were not of much help but indirectly the sniffer-dog helped in investigating the case. On the very day 24th March 2010 the Hulla 38 was raised by the people of the locality in the village and said that a dead-body in a gunny bag was lying under the mango tree of Bhagirath Pandit nearby Durga Mandap. The informant P.W.16 Ishwar Sao @ Munshi Sao his wife P.W.10 Sunita Devi, P.W.4 Chinta Mani Devi, P.W.6 Suresh Pandit and other independent persons of the village who were also examined on behalf of the prosecution reached there and in presence of them, the gunny bag was opened out of which a dead body was recovered and the same was identified to be of six years old missing son of informant, namely, Aman. The hair from the forehead were also shaved. One eye was also missing. The wound was also nearby the left ear at the occipital region. It also appeared that some chemical was sprinkled over the dead body. The foul smell was also emitting from the same. After recovery of the dead body of six year old missing son of informant on 24th March, 2010 at around 12:30 O'clock, the written information was given by P.W.16 Ishwar Sao @ Munshi Sao to the concerned Police Station. In this written information name of the accused were not mentioned. From perusal of the written information it is found that in this written information the doubt has been shown by the informant P.W.16 Ishwar Sao that some accused nearby Bhagtin Mandap adjoining to which from the mango tree the dead body was recovered from the gunny bag might have committed the murder of his son after having kidnapped the same. This written information has been proved by P.W.16 Ishwar Sao and he has stated that the written information written by Vijay Sao on which he put his signature. This written information and its contents have been proved by P.W. 16 informant Ishwar Sao @ Munshi Saw as 39 Ext.2. On the basis of written information Ext.2 the formal F.I.R. was also lodged the same has been proved by P.W.24 Rajesh Murmu who stated that it was prepared by Hemlal Yadav whose writing and signature verified and the same is marked as Ext.12.
49. The I.O. of the instant case investigated the matter and on 25th March, 2010 the witness Chinta Mani Devi who was examined on behalf of prosecution as P.W.4 told to the police that on 24th March, 2010 at 12 O'clock she was going to bring water from the well nearby Bhagtin Mandap and she saw Rajesh Pandit throwing the gunny bag under the mango tree nearby Bhagtin Mandap. On the basis of the disclosure made by Chinta Mani Devi the I.O. got her statement recorded under Section 164 of Cr.P.C. by the Judicial Magistrate. The statement of P.W. 4 Chinta Mani Devi under Section 164 of Cr.P.C. was recorded by Judicial Magistrate who was examined as P.W.21 Dinesh Kumar and proved the same. On the very day Suresh Pandit P.W.6 also disclosed that on 24th March 2010 when he was going to the market to purchase vegetable and some articles for the purpose of worship, he had seen Vijay Pandit handing over the gunny bag to Rajesh Pandit from the boundary wall of Durga Mandap and Rajesh Pandit placed the same gunny bag under the mango tree nearby the Mandap and Rajesh Pandit left that place. He also reached nearby the gunny bag on account of the curiosity and the foul smell was also emitting from the same, so he straightway went to his house.
50. On the disclosure made by witness P.W.4 Chinta Mani Devi and P.W. 6 Suresh Pandit the I.O. arrested eight accused 40 Vijay Pandit, Rajesh Pandit, Sita Ram Pandit, Bhagirath Pandit, Indra Devi, Sarita Devi, Santoshi Kumari, Nathan Turiya and all these accused persons confessed their guilt before the I.O. P.W.23 Sujit Kumar and while confessing their guilt it was stated that in their family either one member and another had been falling ill and therefore Vijay Pandit and Rajesh Pandit, Sita Ram Pandit all asked to Indra Devi who was Bhagtin in the Durga Mandap why the members of their family were falling ill. At this Indra Devi had suggested them to sacrifice a child to the deity and all will be well in their family. In order to see happiness in their family Vijay Pandit and Rajesh Pandit both kidnapped the six years old child of Munshi Sao on 20th March, 2010 at 10 O'clock while he was playing under the jackfruit tree nearby his house. Prior to kidnapping the child was also given biscuit and allured by Indra Devi and Sarita Devi as well. It also came in their confessional statement that Indra Devi was chanting the prayer. Sita Ram Pandit was chanting mantras. Vijay Pandit and Rajesh Pandit both caught the hands of the child and after having shaved his hair from the forehead Sita Ram Pandit gave a stabbed wound with the knife/sword. The blood of the child was sacrificed to the deity. At that time Sarita Devi was singing song. Bhagirath Pandit was also chanting mantra. Nathan Turiya was beating drum at that time. All the eight accused, as stated hereinabove, confessed their guilt in presence of P.W.1 Arjun Sao, P.W.2 Manoj Sao, P.W.5 Arjun Singh, P.W.6 Suresh Singh, P.W.7 Faudi Yadav, P.W.8 Surendra Prasad, P.W.9 Shadeo Yadav, P.W.10 Sunita Devi, P.W.11 Panma Devi, P.W.12 Jugal Pasi,P.W.13 Babbun Sao, P.W. 14 Muneshwar Pandit, P.W.15 Hemiya Devi, P.W.16 41 Ishwar Sao, P.W.17 Binod Rana, P.W.18 Manoj Rana and all these witnesses in their statement have stated that these accused have confessed their guilt in their presence before the I.O. P.W.23 Sujit Kumar.
51. On 25th March, 2010 the I.O. 23 Sujit Kumar produced all the eight accused before the Chief Judicial Magistrate, Koderma. On the very day he also moved an application for the judicial remand of these eight accused. The application was moved by the I.O. to the Chief Judicial Magistrate, Koderma on 26th March, 2010. The carbon copy of that application is paper No. 27 of the case diary. In this application the I.O. sought the remand of all the eight accused at least for one fortnight. The name of the eight accused also mentioned therein. In this application it is also stated that he also stated that the evidence against these accused persons for seeking remand was the F.I.R., statement of the witness and also the confession made by the eight accused Rajesh Pandit, Vijay Pandit, Sita Ram Pandit, Indra Devi, Santoshi Kumari, Sarita Devi, Nathan Turiya, Ramdeo Pandey. On the very day on 26th March, 2010 this I.O. was also moved the application to the Chief Judicial Magistrate which is paper No.58 of the case diary in which the I.O. also prayed to the Chief Judicial Magistrate, Koderma to get the statement of the eight accused under Section 164 of Cr.P.C. as they confessed their guilt voluntarily before him. On both these applications there is receiving of the copy of the original application on lower court file.
42
52. From the perusal of the remand sheet on the lower court file, it is found that on 25th March, 2010 the I.O. had produced Chinta Devi for recording her statement under Section 164 of Cr.P.C. by Judicial Magistrate and thereafter on the very day the Judicial Magistrate recorded the statement of witness Chinta Mani Devi under Section 164 of Cr.P.C. on 25th March, 2010 and the sent the same to the Court of C.J.M. The order-sheet of 25th March, 2010 verified this fact.
53. On 26th March, 2010 from perusal of the order-sheet of remand, it is found that the I.O. had produced the application before the Chief Judicial Magistrate to get the confessional statement of eight accused recorded by the Judicial Magistrate under Section 164 of Cr.P.C. Thereafter, by the order of the Chief Judicial Magistrate, Koderma the confessional statement of all the eight accused were recorded separately by the Judicial Magistrate. The order-sheet in English language is made by the Judicial Magistrate who after having recorded the statement of all the eight accused separately in compliance of the order passed by the Chief Judicial Magistrate, Koderma sent all the confessional statement and the accused persons before the Chief Judicial Magistrate, Koderma. Thereafter on 26th March, 2010 from the order-sheet in Hindi of remand file in the office of Chief Judicial Magistrate, Koderma, it is found that he received the confessional statement in an envelope of all the eight accused recorded by Judicial Magistrate under Section 164 of Cr.P.C. and the Chief Judicial Magistrate on the very day granted the judicial remand to all the eight accused on 26.03.2010 to till 09.04.2010. 43
54. From the perusal of the case diary and also the remand sheet which is part of the lower court file, it is evident that the I.O. P.W.23 produced all the accused persons for judicial remand and also for recording their statement under Section 164 of Cr.P.C. as all the accused persons had confessed their guilt separately to be recorded by the Judicial Magistrate under Section 164 of Cr.P.C. Certainly from the perusal of the record it is found that first of all the Chief Judicial Magistrate directed to Judicial Magistrate by passing order to record the statement of all the eight accused persons under Section 164 of Cr.P.C. and on the very day after having perused all the material produced by the I.O. and statement of the accused person under Section 164 of Cr.P.C., the Chief Judicial Magistrate granted remand to all the eight accused till 09.04.2010. There is no illegality in granting the remand by the Chief Judicial Magistrate rather it may be considered irregularity that the Chief Judicial Magistrate before granting judicial remand on the very day directed his Judicial Magistrate to record the confession of all the eight accused persons under Section 164 of Cr.P.C. in view of the application moved by the I.O.
55. Section 461 of Cr.P.C. deals with the irregularity which vitiates the proceedings which reads here-in-below:
Section 461. Irregularities which vitiate proceedings.- If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely-
(a) attaches and sells property under section 83;
(b) issues a search-warrant for a document, parcel or other thing in the custody of a postal or telegraph authority;
(c) demands security to keep the peace,
(d) demands security for good behavior, 44
(e) discharges a person lawfully bound to be of good behavior;
(f) cancels a bond to keep the peace;
(g) makes an order for maintenance;
(h) makes an order under section 133 as to a local nuisance;
(i) prohibits, under Section 143, the repetition or continuance of a public nuisance;
(j) makes an order under Part C or Part D of Chapter X;
(k) takes cognizance of an offence under clause (c) of sub- section (1) of Section 190;
(l) tries an offender;
(m) tries an offender summarily;
(n) passes a sentence, under Section 325, on proceedings recorded by another Magistrate;
(o) decides an appeal,
(p) calls, under Section 397, for proceedings; or
(q) revises an order passed under Section 446, his proceedings shall be void.
56. From the perusal of this Section, it is evident the irregularity made by the Chief Judicial Magistrate, Koderma as stated here-in-above is not the irregularity which vitiates the proceeding in view of Section 461 of Cr.P.C. The Chief Judicial Magistrate, Koderma had granted judicial remand as well as directed his Judicial Magistrate to record the confession under Section 164 of Cr.P.C. of all the eight accused persons on 26th March, 2010. The moment the accused persons were produced by the police office P.W. 23 I.O. Sujit Kumar before Chief Judicial Magistrate along with application for granting judicial remand and also the application for recording the statement of accused person under Section 164 of Cr.P.C. and passing order by the Chief Judicial Magistrate, Koderma on the very application for recording the statement of the accused persons under Section 164 of Cr.P.C. shall be deemed that the Judicial Magistrate Koderma had taken cognizance of the offence in order to grant remand to all the accused persons. 45
57. The Judicial Magistrate who recorded the confessional statement of all the accused persons separately was examined as P.W.21 Dinesh Kumar on behalf of prosecution. The confessional statement of all the eight accused persons were recorded separately by the Judicial Magistrate on 26th March, 2010. The confessional statement of Rajesh Pandit is Ext.6. The contents which read as under:
jkts'k iafMr izå& vki dgk¡ ,oa D;ksa vk, gSa \ må& th eSa viuk C;ku ntZ djkus U;k;ky; vk;k gw¡ izå& D;k vki vius LosPNk ls C;ku ns jgs gSa \ bldk mi;ksx vkids fo:) gks ldrk gSA må& th gk¡] eSa viuk C;ku viuh ethZ ls ns jgk gw¡ rFkk esjs mij fdlh dk dksbZ ncko ugha gSA izå& crkb, D;k dguk gS\ må& esjs ifjokj esa dHkh tkuoj ej tkrs Fks rks dHkh ?kj dh vkSjrsa chekj gks tkrh Fkh rks esjh HkfDru pkph dkS'kY;k nsoh ifr lhrkjke iafMr us geyksxksa ls cksyh fd ,d yM+dk dk cfy nsus ls lHkh dqN Bhd gks tk;sxkA eSa fot; iafMr] HkkxhjFk iafMr rFkk lhrkjke iafMr feydj xk¡o ds gh eqa'kh lko dk 6 o"kZ ds cPPkk dks geyksx ryokj ls cfy ns fn;s FksA lhrkjke iafMr ryokj idM+k Fkk rFkk ge rhu yksx ml cPpk dk gkFk&iSj idM+ dj cfy ns fn;s FksA iapeh ds fnu geyksx cPpk dk cfy fn;s Fks rFkk n'keh ds fnu eSa ,oa fot; iafMr cPps dk yk'k nksigj esa vke ds isM+ ds uhps Qsd a fn;s FksA izå& vkSj dqN dguk gS\ må& th ugha A fot; iafMr izå& vki dgk¡ ,oa D;ksa vk, gS\ må& th eSa U;k;ky; esa viuk C;ku nsus vk, gSaA izå& D;k vki vius ethZ ls C;ku ns jgs gSa \ bldk mi;ksx vkids fo:) Hkh gks ldrk gSA må& th gk¡] eSa vius iwjs gks'kks&gokl esa vius ethZ ls C;ku ns jgk gw¡A izå& crkb, D;k dguk gS\ må& geyksxksa ds ifjokj esa ges'kk dksbZ u dksbZ chekj jgrk Fkk rks geyksxksa dh pkph bUnzk nsoh ifr lhrkjke iafMr tks HkfDru dk dke djrh gS] us geyksxksa dks cksyh fd ,d cPpk dk cfy ns nsus ls ifjokj esa lHkh yksx Bhd gks tk;saxsA eSa ,oa jkts'k iafMr feydj eqa'kh lkg ds 6 o"kZ ds cPps dk [ksyrs le; ,d pknj esa fNik dj ys vk, rFkk mls fnu Hkj vius ?kj ij j[ks rFkk 'kke esa ml cPps dks pkph ds iwtk LFkku ij ys x;s rFkk eSa] jkts'k iafMr ,oa HkkxhjFk iafMr ml cPps dk gkFk ,oa iSj idM+s ,oa lhrkjke iafMr ryokj ls cPps ds xnZu esa Hkksd a dj [kwu fudkyk rFkk lhrkjke pkpk ml cPps ds xnZu dks tksj ls ?kqek dj mldk cfy ns fn, rFkk pkph bUnzk nsoh ogk¡ iwtk dj jgh FkhA n'keh ds fnu nksigj es]a eSa ,oa jkts'k iafMr us ml cPpk dk yk'k vke ds isM+ ds uhps Qsd a fn;s FksA 46 iapeh ds fnu geyksx cPpk dk cfy fn;s Fks rFkk n'keh ds fnu eSa ,oa fot; iafMr cPps dk yk'k nksigj esa vke ds isM+ ds uhps Qsad fn;s FksA izå& vkSj dqN dguk gS\ må& th ughaAs lfjrk nsoh izå& vki dgk¡ ,oa D;ksa vkbZ gSa \ må& th eSa viuk LohdkjksfDr c;ku nsus vnkyr esa vkbZ gw¡A izå& D;k vki viuk c;ku vius ethZ ls ns jgh gSa \ bldk mi;ksx vkids fo:) Hkh fd;k tk ldrk gSA må& th gk¡] eSa tkurh gw¡ rFkk viuk c;ku vius ethZ ls ns jgh gw¡A izå& crkb, D;k dguk gS \ må& esjs llqj pkj HkkbZ gSa rFkk pkjksa HkkbZ;ksa ds ifjokj esa ges'kk fdlh u fdlh dk rch;r [kjkc jgrk Fkk] rks esjh lkl bUnzh nsoh ifr lhrkjke iafMr] tks dkyh ekbZ dk iwtk djrh gS] us lykg fn;k fd ,d cPps dk cfy nsus ij ifjokj esa lq[k&'kkfUr gks tk;sxkA eqa'kh lkg dk 6 o"kZ dk cPpk [ksy jgk Fkk rks eSa] esjs ifr jkts'k iafMr rFkk fot; iafMr mls pknj esa Nqikdj rFkk mldk eq¡g can djds vius ?kj yk, rkss jkf= esa esjh lkl bUnzh nsoh rFkk jkenso iafMr dkyh ekbZ dk iwtk djus yxs rFkk esjs ifr jkts'k iafMr] fot; iafMr] lhrkjke iafMr rFkk HkkxhjFk iafMr feydj ml cPps dh cfy iapeh ds fnu p<+k fn,A eSa ogk¡ ij dkyh ekbZ dk xhr xk jgh FkhA yk'k dks geyksx Nqikdj j[ks Fks rFkk n'keh ds fnu esjs ifr ,oa fot; iafMr yk'k dks Qsad fn, FksA izå& vkSj dqN dguk gS\ må& th ughaAs larks"kh iafMr izå& vki dgk¡ ,oa D;ksa vkbZ gSa \ må& eSa U;k;ky; ds le{k viuk xokgh nsus vkbZ gw¡ izå& D;k vki vius LosPNk ls viuk c;ku ns jgh gSa \ D;ksafd bld mi;ksx vkids fo:) Hkh fd;k tk ldrk gSA må& th gk¡] eSa viuk c;ku vius ethZ ls ns jgh gw¡A rFkk bldk ifj.kke eq>s irk gSA izå& crkb, D;k dguk gS \ må& blh eghus ds fnukad 22 ;k 23 rkjh[k dks esjs firkth Jh lhrkjke iafMr us eq>s ,d /kedh Hkjk i= fy[kus dks dgk Fkk ftlesa :i;k dh ekax dh xbZ Fkh ,oa tku ls ekjus dh /kedh dgh xbZA eSaus vius firkth ds dgs vuqlkj i= fy[kdj mudks ns fn;k FkkA izå& vkSj dqN dguk gS \ må& th ughasA bUnzk nsoh izå& vki dgk¡ ,oa D;ksa vkbZ gSa må& th eSa viuk c;ku nsus dksVZ esa vkbZ gw¡ A izå& D;k vki viuk c;ku viuh ethZ ls ns jgha gSa D;ksfa d bldk mi;ksx vkids fo:) fd;k tk ldrk gSA må& th gk¡] eSa viuk c;ku vius ethZ ls ns jgh gw¡ rFkk dksbZ ncko ugha gSA izå& crkb, D;k dguk gS \ må& esjs tkmr jkts'k iafMr dh iRuh lfjrk nsoh ges'kk chekj jgrh Fkh rFkk eSa dkyh ek¡ dk iwtk&ikB djrh gw¡ rks eSaus muyksxksa ls dgk fd ,d cfy nsus ij lcds ifjokj esa lq[k&'kkfUr gks tk;sxhA blh ckr ij jkts'k] fot; rFkk lfjrk nsoh feydj eqU'kh lko dk cPpk dks iapeh ds fnu idM+dj yk;s rks eSa ,oa jkenso iafMr 'kke esa iwtk djus yxs 47 ,oa eafnj ds ckgj jkts'k iafMr] fot; iafMr] HkkxhjFk iafMr] lhrkjke iafMr rFkk lfjrk nsoh ml yM+ds dk cfy p<+k fn;sA izå& vkSj dqN dguk gS \ må& th ughaAs lhrkjke iafMr izå& vki dgk¡ ,oa D;ksa vk, gSa \ må& eSa U;k;ky; esa viuk c;ku nsus vk;k gw¡ A izå& D;k vki viuk c;ku vius ethZ ls ns jgs gSa \ bldk mi;ksx vkids fo:) Hkh fd;k tk ldrk gSA må& th gk¡] eSa tkurk gw¡ rFkk viuk c;ku vius ethZ ls ns jgk gw¡A izå& crkb, D;k dguk gS \ må& eSa ,oa esjh iRuh miokl j[kdj nsoh ek¡ dk iwtk&ikB djrs gSaSA jkenso iafMr iwtk esa ikB djrs gSaA jkts'k iafMr ,oa fot; iafMr] eqU'kh lkg ds yM+ds dks idM+dj yk;s Fks rFkk iapeh ds fnu ml yM+ds dh cfy ns nh xbZA cfy ds le; eSa eqU'kh lkg ds ?kj ds ikl jgdj ns[k&rkd dj jgk FkkA iapeh ds fnu gh eSa vius yM+dh larks"kh dqekjh ls ,d i= eqU'kh lkg ds uke fy[kok, fd og 90 gtkj :å ns ugha rks mlds yM+ds veu lko dh tku ekj nh tk;sxhA izå& vkSj dqN dguk gS \ må& th ughaAs HkkxhjFk iafMr izå& vki dgk¡ ,oa D;ksa vk, gSa \ må& th eSa viuk LohdkjksfDr c;ku nsus dksVZ esa vk;k gw¡ A izå& D;k vki viuk LohdkjksfDr c;ku vius eu ls ns jgs gSa D;ksfa d bldk mi;ksx vkids fo:) fd;k tk ldrk gSA må& th gk¡] eSa viuk LohdkjksfDr c;ku vius ethZ ls fcuk ncko dk ns jgk gw¡A izå& crkb, D;k dguk gS \ må& iapeh ds fnu eqa'kh lkg dk yM+dk dks fdlh us mBk fy;k Fkk rks eSa rFkk dqN vU; yksx ykmMLihdj ls iwjs {ks= esa izpkj fd;s fd yM+dk dgha xqe gks x;k gSA eSa jkts'k] fot;] jkenso iafMr rFkk lhrkjke feydj eqa'kh ds yM+ds dk cfy iapeh ds fnu yxHkx 7-30 cts jkf= esa p<+k fn;s FksA uFku rqfj;k <ksy ml oDr ctk jgk FkkA izå& vkSj dqN dguk gS \ må& th ughaAs uFku rqfj;k izå& vki dgk¡ ,oa D;ksa vk, gSa \ må& th eSa viuk LohdkjksfDr c;ku nsus dksVZ esa vk;k gw¡ A izå& D;k vki vius LosPNk ls viuk LohdkjksfDr c;ku ns jgs gSa D;ksafd bldk mi;ksx vkids fo:) dh tk ldrh gSA må& th gk¡] eSa vius LosPNk ls viuk c;ku ns jgk gw¡A izå& crkb, D;k dguk gS \ må& HkfDru bUnzk nsoh tks lhrkjke iafMr dh iRuh gS us eq>s uojk=k esa <ksy ctkus dks ckyh Fkh rks eSa lqcg&'kke esa mlds ;gk¡ tkdj eafnj esa <ksy ctkrs FksA iapeh ds fnu Hkh eSaus bUnzk nsoh ds ;gk¡ <ksy ctk;k Fkk ijUrq eq>s ugha irk gS fd cfy dSls fn;k x;kA izå& vkSj dqN dguk gS \ må& th ughaAs 48
58. From perusal of all these confessional statement each and every accused, it is found that the Judicial Magistrate concerned has recorded the statement on the format on which the deposition of the witnesses were recorded because the form for recording the statement under Section 164 of Cr.P.C. was not available.
59. From perusal of the confessional statement of each and every accused person, it is found that the Judicial Magistrate had asked the each and every accused whether he was confessing his guilt voluntarily and if the confession is made it will be used against him. In reply thereof all the accused persons stated that they were confessing their guilt willingly and without any pressure.
60. After recording the statement of each and every accused there is signature of the accused who was literate and while putting signature of the accused persons also wrote in his hand writing that he perused the statement and he gave statement in senses and after having think over and those who were illiterate put the thumb impression.
61. The signature of the Judicial Magistrate who recorded the statement is also thereon and thereafter the certificate was issued by the Judicial Magistrate as per requirement of Section 164 of Cr.P.C. and at the foot of the certificate is also the thumb impression or the signature of the accused confessing guilt and also the signature of the Judicial Magistrate.
62. All these confessional statement has been proved on behalf of prosecution by P.W. 21 Dinesh Kumar Judicial Magistrate. This witness has stated that in his statement he has given to all the accused persons an opportunity to reconsider before 49 to confess their guilt. He also stated that while recording the confessional statement of each and every accused no power of any Advocate and none appeared on behalf of the accused persons. It is also stated by this witness that the accused persons were sent to him along with order by Chief Judicial Magistrate, Koderma to record their statement. Therefore, in his view the accused persons were in judicial custody. This witness also stated in para 15 of his statement that all the accused persons stated that they were giving their statement willingly without any pressure. He also stated that he recorded the statement of the accused one by one by calling in his court room. At that time no person of police was present rather he and his court staff was present there and all the accused persons were sitting with his court staff. And after having recorded the statement of each and every accused, he sent their statement to the Chief Judicial Magistrate, Koderma. He also asked to each and every accused that if he confessed his guilt, it would be used against him in evidence. This witness P.W. 21 Dinesh Kumar Judicial Magistrate also stated that while recording the statement of every accused he was satisfied that each and every accused was making confession voluntarily without any pressure and thereafter he also got the certificate on the very statement that the confession was given voluntarily without any pressure in view of Section 164 Cr.P.C.
63. The very perusal of all the confessional statement of each of the eight accused it is found that this confession was made in accordance with the provisions of Section 164 of Cr.P.C. If there is some irregularity in the statement under Section 164 of Cr.P.C. the 50 same is cured by adducing the Judicial Magistrate to prove the confession under Section 164 of Cr.P.C.
64. We avert to following statutory provisions which are reproduced here-in-below:
Article 20 (3) of the Constitution of India which reads as under:
"no person accused of any offence shall be compelled to be a witness against himself."
Section 164 Cr.P.C. reads as under:
164. Recording of confession and statements.-(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:
"[Provided that any confession or statement made under this sub-section may also be recorded by audio- video electronic means in the presence of the advocate of the person accused of an offence;
Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.] (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of 51 such record to the following effect:-
"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed)A.B. Magistrate".
(5) Any statement (other than a confession) made under Sub-Section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.
[(5-A) (a) In cases punishable under section 354, section 354 A, section 354-B, section 354-C, section 354-D, sub-section (1) or sub-section (2) of section 376, section 376-A, section 376-B, section 376-C, section 376-D, section 376-E or section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub- section (5), as soon as the commission of the offence is brought to the notice of the police;
Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement;
Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed.
A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the 52 statement can be cross-examined on such statement, without the need for recording the same at the time of trial.] (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.
Section 463 of Cr.P.C. reads as under:
Section 463. Non-compliance with provisions of Section 164 or Section 281.-(1) If any Court before which a confession or other statement of an accused person recorded, or purporting to be recorded under Section 164 or section 281, is tendered, or has been received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in section 91 of the Indian Evidence Act, 1872 (1 of 1872), take evidence in regard to such non-compliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement.
(2) The provisions of this section apply to Courts of appeal, reference and revision.
65. Moreover, from the testimony of P.W. 21 Dinesh Kumar, it is also found that though the confessional statement of each of the accused were recorded on the format on which the evidence is recorded but confessional statement of each and every accused was recorded without administering any oath as prescribed in the provisions of Section 164 of Cr.P.C.
66. The argument as advanced on behalf of the appellants' learned Counsel Mr. Jitendra Shankar Singh that the accused persons were in police custody at the time of recording their confession under Section 164 of Cr.P.C. As such the same is hit the provision of Section 24, 25 & 26 of Evidence Act.
53
67. Herein the provisions of Section 24, 25 and 26 of Evidence Act are reproduced here-in-below:
Section 24. Confession caused by inducement, threat or promomise, when irrelevant in criminal proceeding.-A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused persons, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Section 25. Confession to police officer not be proved.- No. confession made to a police officer, shall be proved as against a person accused of any offence. Section 26. Confession by accused while in custody of police not to be proved against him. - No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person."
68. From the perusal of Section 26 of the Evidence Act, it is evident that if the confessional statement is made under the police custody; but in immediate presence of the Magistrate, the confession will be admissible. Such Magistrate should be the Judicial Magistrate or the Metropolitan Magistrate. No Executive Magistrate can record the confession of the accused under Section 164 of Cr.P.C. if the accused is in police custody. The only condition is that the Judicial Magistrate or the Metropolitan Magistrate while recording the confessional statement of accused under Section 164 Cr.P.C. should satisfy himself that the accused is not under any pressure or tortured or influenced before confessing his guilt. The accused must be warned by Judicial Magistrate that if he confessed his guilt, it would 54 be used in evidence against him. As such the confession should be voluntarily without any pressure.
69. As such in the instant case though all the accused persons were in judicial custody as they were produced before the Chief Judicial Magistrate for seeking remand by the I.O. and simultaneously the I.O. had moved the application to record their statement under Section 164 of Cr.P.C. as they confessed their guilt voluntarily and by the order passed by Chief Judicial Magistrate and direction to the Judicial Magistrate P.W.21 Dinesh Kumar recorded the statement of each and every accused under Section 164 of Cr.P.C. As per statement of P.W. 21 Dinesh Kumar Judicial Magistrate it is found that the Judicial Magistrate had complied all the provisions of Section 164 of Cr.P.C. and has satisfied himself that each and every accused was making confession voluntarily willingly without any pressure. He also gave opportunity to each and every accused to reconsider before to confess the guilt. Therefore, the confession made by each and every accused before the Judicial Magistrate under Section 164 of Cr.P.C. even if for the sake of argument they were in police custody is not hit by the provisions of Section 24, 25 26 of the Evidence Act and same is admissible as it was recorded by Judicial Magistrate under Section 164 of Cr.P.C.
70. Herein it would be relevant to cite the certain pronouncement of Hon'ble Apex Court which are reproduced here-in- below:
The Hon'ble Apex Court held in M.A.Antony @ Antappan vs. State of Kerala A.I.R. 2009 SC 2549 55 "The confessional statement made freely and voluntarily by the accused. All necessary precautions required under Section 164 (2) have been taken by the Magistrate as before recording the confession. It cannot be rejected merely because the Magistrate has used the expression 'evidence' instead of 'confession' while warning the accused."
The Hon'ble Apex Court held in Shankaria vs. State of Rajasthan (1978) 3 435:
"39. It is true that the interval between the preliminary examination of the appellant and the recording of his confessional statement was about 15 minutes. But there is no statutory provision in Section 164 Cr.P.C. of else-where, or even an executive direction issued by the High Court that there should be an interval of 24 hours or more between the preliminary questioning of the accused and the recording of his confession. The condition precedent for recording a confession by the Magistrate in the course of Police investigation is provided in Section 164(2) Cr.P.C. which mandates the Magistrate not to record any confession, unless upon questioning the accused person making it, he has reason to believe that it is being made voluntarily."
The Hon'ble Apex Court held in Ram Singh vrs. Sonia 2007 Cri. Law Journal 1642:
"On 24th August, 2001, upon receipt of an application moved by Superintendent of Police for recording dying declaration of A-1 by a magistrate, DSP Man Singh, who partly investigated the case, approached the Chief Judicial Magistrate, Hisar, who, in turn, marked the said application to Pardeep Kumar, PW 62. On its presentation to PW 62 by DSP Man Singh at 10 p.m. the same day, both PW 62 and DSP Man Singh left for the Janta Hospital, Barwala. After reaching the hospital and before recording the statement, PW.62 first sought opinion of Dr. Anant Ram(PW32) as to the fitness of A-1 to make the statement. As in the opinion of PW.32,A-1 was fit to make the statement. P.W.62 proceeded to record it, which is in question and answer form. It appears from Ext. 187 as well as from the questions and answers which were put to A-1 that PW. 62 warned A-1 that she was not bound to make any confessional statement and in case she did so, it might be used against her as evidence. In spite of this warning, A-1 volunteered to make the statement and only thereafter the statement 56 was recorded by PW. 62. In the certificate that was appended to the said confessional statement PW.62 has very categorically stated that he had explained to A-1 that she was not bound to make a confession and that if she did so, any confession she would make might be used as evidence against her and that he believed that the confession was voluntarily made. He further stated that he read over the statement to the person making it and admitted by her to be correct and that it contained a full and true account of the statement made by her. It has been further stated by PW.62 in his evidence that at the time of recording of the confession it was he and PW 32, who were present in the room and there was neither any police officer nor anybody else within the hearing or sight when the statement was recorded. It also appears from the evidence of PW.62 that it took about 2-1/2 hours for him to record the statement of A-1, which runs into 5 pages, which he started at 10.53 p.m. and ended at 1.28 a.m. which goes to show that A-1 took her time before replying to the questions put. PW.62 has also stated that she had given the statement after taking due time after understanding each aspect. It also appears that he was satisfied that she was not under any pressure from any corner. Therefore, it is evident from the certificate appended to the confessional statement by PW.62 that the confessional statement was made by the accused voluntarily. Of course, he failed to record the question that was put by him to the accused whether there was any pressure on her to give a statement, but PW.62 having stated in his evidence before the Court that he had asked the accused orally whether she was under any pressure, threat or fear and he was satisfied that A-1was not under any pressure from any corner, that in the room in which the said confessional statement was recorded it was only he and PW.32 who were present and none else and that no police officer was available even within the precincts of the hospital, the said defect, in our view, is cured by Section 463 as the mandatory requirement provided under section 164 (2), namely, explaining to the accused that he was not bound to make a statement and if a statement is made the same might be used against him has been complied with and the same is established from the certificate appended to the statement and from the evidence of PW.62. Therefore, in the light of our discussion above, we have no hesitation in holding that the judicial confession [Ext. 187] having been recorded according to the procedure set out in Section 164 read with Section 281 and the defect made while recording the same being curable by Section 463, it is admissible in evidence."57
71. In view of the aforesaid proposition of law laid down by Hon'ble Apex Court and the provisions given here-in-above, it is the settled law that no accused can be compelled to be a witness against himself under Article 20 (3) of Constitution of India; but the confession of an accused if made voluntarily without any pressure under Section 164 of Cr.P.C. is made to the Judicial Magistrate is admissible in evidence. Therefore the confessional statement of the eight accused persons are found admissible in evidence.
72. The confessional statement if made voluntarily without any pressure is a strong piece of evidence against the accused who made it voluntarily.
73. The learned Counsel for the appellant has submitted that these accused persons had retracted their confession in their statement under Section 313 of Cr.P.C. and it is stated that prior to recording the statement of these accused persons under Section 164 of Cr.P.C. the I.O. police officer had given the 3rd degree treatment to the accused persons. They were tortured. Even the petrol was also thrown in the private parts of the accused persons and modesty of the female accused was outraged. There is no such cogent or trustworthy evidence on record to support the submission of the defence counsel that the 3rd degree treatment was given to the accused persons by the I.O. before recording their statement under Section 164 of Cr.P.C. by the Judicial Magistrate. Even P.W. 21 Dinesh Kumar Judicial Magistrate who proved the confessional statement of each and every accused had stated that he had examined each and every accused. Each and every accused made confession voluntarily without any pressure and he was also satisfied after giving an opportunity to the accused 58 persons to reconsider before confessing the guilt that each and every accused was confessing voluntarily without any pressure.
74. From the perusal of the record, it is found that for the first time on behalf of the accused persons while they were in jail an application was given through Jail Superintendent on 08.04.2010 after lapse of two weeks from the date of recording the confession. This application was moved to the Chief Judicial Magistrate. In support of this application the medical examination of each and every accused was also conducted by the Medical Officer in the jail which was also annexed on behalf of the accused persons in defence evidence. There is nothing on record to show that the accused persons were tortured by the police before recording their statement under Section 164 of Cr.P.C. This application which was moved by the accused persons through the jail superintendent on 08.04.2010 on which they retracted their confession was given after receiving the legal advice.
75. Moreover, though all these accused persons who confessed their guilt retracted from the confession under Section 313 of Cr.P.C., yet on behalf of the accused persons none of the accused person who had confessed their guilt dared to produce before the Court for examination before the Trial Court in order to show that the confession made by each and every accused was not voluntarily and was under police pressure and torture. As such non-production of any of the accused in evidence in order to show the 3rd degree treatment given to them and also retraction from their statement further corroborates the prosecution case.
76. So far as the confessional statements of the eight accused persons are concerned the same also get corroboration from the statement of P.W. 4 Chinta Mani Devi and P.W.6 Suresh Singh. P.W.4 59 Chinta Mani Devi is the very star witness of this case who for the first time disclosed before the police on 25.04.2010 that she had seen accused Rajesh Pandit throwing the gunny bag containing the dead body under the mango tree nearby the Bhagtin Mandap; while she had gone to bring water from the well. After recording the statement of Chinta Mani Devi 161 Cr.P.C. the I.O. took her before the Chief Judicial Magistrate, Koderma and got her statement under Section 164 Cr.P.C.
77. On 25.03.2010 the Judicial Magistrate, Koderma recorded the statement of this witness wherein she has stated that she had seen Rajesh Pandit throwing the gunny bag containing therein the dead body of decease son of the informant. This statement of Chinta Mani Devi under Section 164 Cr.P.C. is also proved by Judicial Magistrate P.W. 21 Dinesh Kumar. Chinta Mani Devi was examined as P.W.4 in this case. In her statement she corroborated her statement given before the Judicial Magistrate, Koderma under Section 164 of Cr.P.C. She also stated that in her presence Suresh Singh and other villagers all the eight accused persons who were arrested by the police confessed their guilt separately and stated in that they had sacrificed the six years old kidnapped son of Munshi Sao.
78. On the very next day of lodging the F.I.R. the statement of P.W. 6 Suresh Pandit was also recorded under Section 161 of Cr.P.C. This witness also stated to the I.O. P.W. 23 that on 24.03.2010 while he was going to the market to purchase vegetable from the market he saw Vijay Pandit handing over gunny bag from the boundary wall of Devi Mandap to Rajesh Pandit who placed the same under the mango tree. He also went to the gunny bag since it was emitting foul smell so he straightway 60 went to his house and on the very next day he disclosed the same before the police.
79. The statement of P.W.4 Chinta Mani Devi and P.W.6 Suresh Pandit are found trustworthy. Their conduct is not unnatural against human instinct. P.W.4 Chinta Mani, P.W. 6 Suresh Panit both had seen Rajesh Pandit placing the gunny bag under the mango tree. Suresh Pandit had also seen Vijay Pandit handing over the gunny bag containing the dead body of deceased son of the informant to Rajesh Pandit who placed the same under the mango tree. These two witness as per the testimony went to the gunny bag since it was emitting foul smell so they went their house. They did not disclose this statement to anyone. On 24.03.2010 after half an hour when the gunny bag was recovered by the police on raising Hulla by the villagers out of the bag the dead-body of the deceased Aman was found. His hair were shaved, one eye was missing and there was wound on the temporal region of the left ear. Some chemical was also sprinkled over the dead body. This dead-body was identified by the father of deceased P.W. 16 Ishwar Sao, mother Sunita Devi P.W. 10, P.W.11 Panma Devi, the aunt of deceased and other villager.
80. The injuries which were on the body of the deceased were also shown in the inquest report which was visible apparently thereon. It was mentioned in the inquest report and subsequently the postmortem was also conducted. In postmortem report the two eyes were absent and hair were also shaved and the wound was also there. Whatever minor discrepancy is in the inquest report and the postmortem report is there on account of the fact that the postmortem is conducted by the expert; while the inquest report is prepared on the apparent looking of the dead 61 body to show the probable cause of death. The postmortem report of the deceased is also proved by P.W. 19 Dr. Zaffar Hussan and P.W.20 Dr. Awadhesh Kumar.
81. The learned Counsel for the appellant has submitted that P.W.4 Chinta Mani Devi and P.W.6 Suresh Pandit both were also present when the dead body was recovered out of the gunny bag. They did not disclose this fact that they had seen the accused Rajesh Pandit and Vijay Pandit disposing of the gunny bag before the police or the informant. The conduct of these witnesses is unnatural; but this conduct is not found unnatural because both the witness also belonged to the same locality. The informant and the victim were also of the same locality. It is stated by these two witnesses in their statement that on account of fear they did not disclose this fact before the police. But on the very next day of registering the police case, these two witnesses have disclosed before the I.O. in regard to this fact. The same is not found unnatural or fatal to the prosecution case. Moreover, Chinta Mani Devi also disclosed this fact before the Judicial Magistrate under Section 164 of Cr.P.C.
82. Therefore, the testimony of P.W.4 Chinta Mani Devi and P.W.6 Suresh Pandit also corroborates the confessional statement of the accused and are also the link evidence in chain of circumstantial evidence to complete the chain of circumstantial evidence.
83. Moreover the statement of P.W.4 Chinta Mani Devi and P.W.6 Suresh Pandit is reliable because P.W.6 Suresh Singh in the family member of the accused persons and P.W.4 Chinta Mani is the independent witness.
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84. The accused persons in their statement under Section 313 of Cr.P.C. has stated that Chinta Mani was the maid at the house of Ishwar Sao/Munshi Sao. But in defence evidence the two witnesses were examined on behalf of the accused persons. D.W.1. Pramod Kumar and D.W.2 Jagdish Pandit, these two defence witnesses have stated that there is no proof in this regard that Chinta Mani Devi was maid at the house of accused persons. So far as the testimony of Suresh Pandit is alleged to be because of any property enmity; D.W.1 Pramod Kumar in his statement says that though the enmity relating to property is between the accused persons and P.W.6 Suresh Pandit yet no case is pending before any court. As such the testimony of P.W.4 and P.W.6 are found trustworthy.
85. Learned Counsel for the appellant has also submitted that the blood stained sword/knife which is alleged to be used in commission of the murder was not sent to the F.S.L. for examination. Admittedly the sword which was used in committing the murder to sacrifice the dead- body of kidnapped child Aman was not sent to F.S.L. for examination. The seizure memo of the same is proved by the witness P.W.17 Binod Rana and P.W.18 Manoj Rana. On the sole ground whole of the prosecution evidence cannot be brushed away on account of negligence or inaction on the part of the I.O.
The Hon'ble Apex Court held in "Shiv Shankar Singh vrs. State of Jharkhand" 2011(3) SCC 654 "54. The question, however, is whether the failure of the investigating agency to make a reference would in the circumstance of the case discredit either the version of the witnesses that the T-shirt was bloodstained when it was seized or constitute a deficiency of the kind that would affect the prosecution version. Our answer is in the negative. 63 Failure to make a reference to forensic science laboratory is in the circumstances of the case no more than a deficiency in the investigation of the case. Any such deficiency does not necessarily lead to the conclusion that the prosecution case is totally unworthy or credit. Deficiencies in investigation by way of omissions and lapses on the part of investigating agency cannot in themselves justify a total rejection of the prosecution case.
55. In Ram Bihari Yadav v. State of Bihar this Court while dealing with the effect of shoddy investigation of cases held that if primacy was given to such negligent investigation or to the omissions and lapses committed in the course of investigation, it will shake the confidence of the people not only in the law enforcing agency but also in the administration of justice.
57. In Amar Singh v. Balwinder Singh the investigating agency had not sent the firearm and the empties to the forensic science laboratory for comparison. It was argued on behalf of the defence that the omission was a major flaw in the prosecution case sufficient to discredit the prosecution version. This Court, however, repelled that contention and held that in a case where the investigation is found to be defective the court has to be more circumspect in evaluating the evidence. But it would not be right to completely throw out the prosecution case on account of any such defects, for doing so would amount to playing in the hands of the investigating officer who may have kept the investigation designedly defective."
58. This Court in Balwinder Singh case said (SCCp 531, para 15) "15. ....It would have been certainly better if the investigating agency had sent the firearms and the empties to the forensic science laboratory for comparison. However, the report of the ballistic expert would in any case be in the nature of an expert opinion and the same is not conclusive. The failure of the investigating officer in sending the firearms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eyewitnesses whose presence on the spot cannot be doubted as they all received gunshot injuries in the incident."
86. The Learned Counsel for the appellants has also submitted that the chain of the circumstantial evidence is also broken when the letters which are alleged to be given for the ransom were not proved by the expert. This submission of the learned Counsel for the appellant is 64 not tenable that the two letters which were written by Santoshi Kumari were confessed to be written in her hand writing at the behest of her father Sita Ram Pandit before the Judicial Magistrate under Section 164 of Cr.P.C. As such there was no need to compare the hand writing of these two letters to be in hand writing of Santoshi Kumari. It also came in evidence that these two letters were got written by accused Sita Ram Pandit in order to give the colour to this case of a murder for ransom while just to divert the attention of the family member of the accused. Therefore, from these two letters, chain of circumstantial evidence is not broken rather it connects the link in the chain of circumstantial evidence.
87. From the prosecution evidence adduced on behalf of prosecution, it is found that against appellant Ramdeo Pandey there is only evidence of the confession of co-accused Sarita Devi in which she stated that Ramdeo Pandey was also chanting mantras at the time of Puja while sacrificing the body. There is no other corroborating evidence against Ramdeo Pandey to corroborate the confession of co-accused made under Section 30 of Evidence Act. As such on the mere confession of the co-accused and having no corroborative evidence being in support thereof, the conviction of the appellant Ramdeo Pandit is bad in the eye law and same deserve to be set aside.
88. So far conviction of Nathan Turiya is concerned this accused also confessed before the Judicial Magistrate under Section 164 of Cr.P.C. that he was beating drum at the time occurrence. He also stated that he usually beat drum at the time of Puja in the Bhagtin Mandap and he was not aware of whom sacrifice was being made by the accused persons. This accused Nathan Turiya had no mens rea as he was 65 simply beating the drum at the time of occurrence. Therefore, the conviction of Nathan Turiya being not based on any cogent evidence cannot be allowed to stand and same is set aside as passed by the learned Trial Court by passing the impugned judgment.
89. So far as the conviction of Santoshi Kumari is concerned, this witness also confessed her guilt before the Judicial Magistrate under Section 164 of Cr.P.C. She stated that she wrote the two letters at the behest of her father Sita Ram Pandit in which the demand of 90,000/- rupees for the ransom was made. She stated that she was not aware in what way and why sacrifice of the missing child of Inshwar Sao was made. Even the other accused persons in their confession also stated that Santoshi Kumari only wrote the letter at the behest of Sita Ram Pandit. There is no other evidence against Santoshi Kumari to show her complicity in commission of the alleged offence. As such the conviction of Santoshi Kumari for the charge framed against her is also being based on perverse finding deserve to be set aside in the impugned judgment passed by the trial court.
90. So far as the conviction of rest of the accused persons are concerned, in view of the analysis of the evidence made hereinabove and also the settled propositions of the law and the judicial pronouncement made by the Hon'ble Apex Court and the evidence on record, the conviction of all these appellant Vijay Pandit, Rajesh Pandit, Sita Ram Pandit, Sarita Devi, Indra Devi, Bhagirath Pandit needs no interference and same is affirmed as passed by the learned Trial Court.
91. Cr. Appeal (D.B.) No. 774 of 2012 preferred on behalf of the State of Jharkhand to enhance the life imprisonment of the appellants and convert the same into capital sentence i.e. death sentence. 66
The learned A.P.P. and learned Counsel of the informant Ishwar Sao have contended that it was a case of murder of six years old innocent child which was committed brutally. Therefore, the case comes within the category of rarest of the rare case and it is a fit case for death sentence. The learned A.P.P. and the learned Counsel for the informant relied on the following case law:
Sushil Murmu vrs. State of Jharkhand, (2004) SCC 338
92. Learned Counsel for the appellant opposed the contentions made by the learned A.P.P. and the learned Counsel for the informant and contended that the the prosecution case is based on circumstantial evidence and it is not a fit case for death sentence. It is also further submitted that as per the prosecution case, the genesis of the murder are in this fact that the accused persons were in evil as the members of their family were ill and Indra Devi suggested them to sacrifice the child to the deity in order to avoid the evil over their family they committed the murder of the deceased son of informant. Therefore it was not a case of rarest of the rare case to pass the death sentence.
93. We have heard the rival submission of learned Counsel for the parties and perused the record. Before going into the validity the propriety of the sentence passed by the court below it is necessary to prepare the balance sheet of aggravating the and mitigating circumstances for imposing the sentence against the convicted persons.
Mitigating circumstances-
i. The genesis of the prosecution case are that the convicts appellants herein were in difficulty as the members of their family were ill in order to avoid this evil Indra Devi the co-convict advised the other convicts to sacrifice the body of a child to please deity. Therefore in order to avoid this evil over their family they sacrificed the body.
67ii. The convict Rajesh Pandit 26 years old on the date of occurrence, Vijay Pandit was 22 years old, Sarita Devi was 22 years old lady, Indra Devi was 40 years old lady and Sita Ram Pandit was 53 years old, Bhagirath Pandit was 35 years old.
iii. As such all these convicts/appellants were in between 20 to 40 years old except Sita Ram Pandit, who was 53 years old.
iv. There is no criminal antecedent against all the appellant/convicts except this instant case.
v. There is no evidence on record on behalf of the prosecution to show that there was no prospects of these appellants of reformation.
Aggravating circumstance i. The murder was of an innocent child of six years old. ii. The murder of the child in order to sacrifice to the deity in order to please deity shock the conscience of the society.
94. In view of the balance sheet of the aggravating and mitigating circumstances, it would be relevant to reproduce judicial pronouncement of Hon'ble Apex Court, which are given here-in-below:
95. The Hon'ble Apex Court held in "Mofil Khan vrs. State of Jharkhand" 2015 (88) ACC 283. Three Judges Bench laid down the aggravating circumstances:
i. The offences like murder, rape, armed dacoity, kidnapping etc. by the accused with prior record of conviction for capital felony an offences committed by the person having substantial history of serious assault.
ii. offence was committed with intent to create a fear psychosis in public at large and committed at public place which hazards to life of more than one person.
iii. Offence of murder was committed for ransom.
iv. Hired killing.
v. Offences committed inhumanly and torture to
victim
vi. Offence committed by person in custody.
vii. When victim is innocent helpless relies upon the
trust of relationship like child helpless women etc. viii. Cold blooded murder without provocation ix. Crime committed so brutally it shocks not only judicial conscience but also conscience of society.68
Mitigating circumstance i. Offence committed in extreme emotional disturbance and extreme provocation.
ii. Age of the accused.
iii. Probability of the accused being reformed. iv. When accused is mentally defective v. Where it is absolutely unsafe to rely upon the testimony of sole eye-witness.
In this case Hon'ble Court also relied upon following case law:
i. Ajitsingh Harnamsingh Gujral vrs. State of Maharastra 2011 (14) SCC 401 ii. Atbir vrs. Govt. of (NCT) of Delhi 2010(9) SCC 1 iii. Sunder Singh @ Sunderrajan vrs. State of Uttranchal (2010) 10 SCC 611.
iv. Jagish vrs. State of M.P. 2009(9) SCC 495
v. Jagmohan vrs. State of U.P. 1973(1) SCC page 20
vi. Bachan Singh vrs. State of Punjab 1988 (2) SCC 684
vii. Machhi Singh Vrs. State of Punjab (1983) 3 SCC 470
96. The Hon'ble Apex Court held in "Sunder @ Sunderrajan vrs.
State by Inspector of Police" 2023 Live Law (SC) 217 "The state must equally must place all material and circumstances on the record bearing on probabilities of the reforms.
Any such material and aspect are within knowledge of the State which had had custody of the accused both before and after the conviction. Moreover the court cannot be an indifferent by sender in this process. The process and powers of the Court may be utilized to ensure that such material is made available to form a death sentence sentencing decision bearing on probability of reformation."
As such the Hon'ble Apex Court in this case held that the rarest of the rare case requires death sentence be imposed only if there is no possibility of reformation.
97. In the case in hand there is no evidence on behalf of prosecution that there was no possibility of the appellants to be reformed. No criminal antecedent of the appellants was adduced on behalf of the prosecution. Admittedly, there is no criminal antecedent of the appellants except this case. The age of the appellants are in between 20 69 to 40 years except one Sita Ram Pandit whose age was 53 years. The genesis of the murder are in emotional and superstition expressed by Indra Devi in order to avoid the evil over their family and to bring happiness in the family to sacrifice the dead body of a child.
98. Therefore in view of the guideline laid down by the Hon'ble Apex Court the instant case does not come within the periphery of rarest of the rare case. As such the sentence life imprisonment passed by the learned trial court against appellants needs no interference and same deserves to be affirmed.
99. Accordingly, Cr. Appeal (D.B.) No. 540 of 2013 is dismissed. The impugned judgment of conviction dated 14.03.2012 and order of sentence dated 16.03.2012 passed in S.T.No.99 of 2010 by the Sessions Judge, Koderma against Rajesh Pandit, Vijay Pandit, Sita Ram Pandit, Bhagirath Pandit, Indra Devi, Sarita Devi is confirmed. The appellants, namely, Sarita Devi and Indra Devi, who were on bail during pendency of this appeal, their bail bonds are hereby cancelled and they will surrender before the trial court to serve out the sentence. The trial court is directed to ensure the complianc of this judgment. Let the record of lower court be sent back along with copy of judgment.
100. Cr.Appeal (D.B.) No.429 of 2012 Nathan Turiya vrs. The State of Jharkhand, Cr. Appeal No. 473 of 2012 Ramdeo Pandey vrs. The State of Jharkhand and Cr.Appeal (D.B.) No. 815 of 2012 Santoshi Kumar vrs The State of Jharkhand are allowed. The impugned judgment of conviction dated 14.03.2012 and order of sentence dated 16.03.2012 passed in S.T.No.99 of 2010 by the Sessions Judge, Koderma against Ramdeo Pandit, Nathan Turia and Santoshi Kumar is quashed and set aside. The appellant Ramdeo Pandey, Nathan Turia and Santoshi Kumari 70 are hereby acquitted. Santoshi Kumari (appellant in Cr.Appeal (D.B.) NO.815 of 2012) was on bail during the pendency of this appeal. Her bail bonds are cancelled & sureties are discharged. Ramdeo Pandey (appealnt in Cr.Appeal (D.B.) No.473 of 2012) and Nathan Turia (appellant in Cr.Appeal (D.B.) No.429 of 2012) are directed to be set free from Jail forthwith if not wanted in other case.
101. The Cri. Appeal No. 774 of 2012 is hereby dismissed.
102. In consequence thereof, I.A.No. 952 of 2015, I.A.No. 2423 of 2020 & I.A.No.471 of 2023 stand disposed of.
I agree (Sujit Narayan Prasad, J.)
Sujit Narayan Prasad,J.
(Subhash Chand, J.)
Jharkhand High Court, Ranchi
Dated the 20.04.2023
P.K.S./A.F.R.