High Court
Case Details
Criminal Appeal (D.B.) No. 673 of 2006 With Criminal Appeal (D.B.) No. 1068 of 2006 [Arising out of judgment of conviction dated 19.04.2006 and order of sentence dated 20.04.2006 passed by learned Additional Sessions Judge, F.T.C. IV, Garhwa in Sessions Trial No. 105 of 2004] Criminal Appeal (D.B.) No. 673 of 2006 Mahboob Alam son of Md. Ali Hasan, resident of Nawadih Road, Ward No.9, P.S. Aurangabad, District Aurangabad (Bihar) --Versus-- The State of Jharkhand …. …. …. Respondent .... .... …. Appellant With Criminal Appeal (D.B.) No. 1068 of 2006 Vakil Ahmad @ Bunty son of Abdul Rasid, resident of Village Uchri, P.O., P.S. & District Garhwa .... …. Appellant .... The State of Jharkhand …. …. …. Respondent --Versus-- For the Appellants For the State
Legal Reasoning
: Mr. Arwind Kumar, Advocate : Mr. Manoj Kumar Mishra, A.P.P. Ms. Vandana Bharti, A.P.P. ----- PRESENT: SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J. ----- JUDGMENT RESERVED ON: 20.08.2024 PRONOUNCED ON: 27 .08.2024 Per Gautam Kumar Choudhary, J. Both these appeals arise out of the common judgment of conviction and sentence passed in Sessions Trial No.105 of 2004, whereby and where under the appellants have been found guilty for the offence under Sections 302/34, 364/34, 201 and 379 of the IPC and sentenced to different terms of imprisonment. 2. As per the prosecution case, vehicle of the informant was taken on hire, who is owner of the vehicle, by the appellants on the pretext of taking a patient to Aurangabad for treatment. The informant gave the vehicle on hire with his driver Shiv Shankar Kumar and they proceeded with the vehicle on 20.10.2002 in the evening at 5’O Clock from Garhwa to Aurangabad. After reaching Daltonganj, in the evening at 8 O’ Clock, driver telephoned to the informant that they have safely reached Daltonganj and will return the next morning. 1 When on the next day, i.e. 21.10.2002, the vehicle did not return, he started searching for Vakil Mistry, but he found his house to be locked. Informant apprehended that the accused persons had fled away with the vehicle. 3. On the basis of the written report, Garhwa P.S. Case No.224 of 2002 was registered under Sections 364/379/34 of the IPC on 24.10.2002 against both these appellants. During investigation on the disclosure statement made by the appellants, the dead body and the looted vehicle was recovered Sections 302, 201, 411/34 of the IPC was added in the FIR. 4. After investigation, charge sheet was submitted against altogether three accused persons including these two appellants, under Sections 302/34, 364/34, 379, 411, 201 of the IPC. 5. Altogether eight witnesses were examined on behalf of the prosecution and relevant documents including post mortem examination report, disclosure statement of the accused persons were adduced into evidence and marked as exhibit. 6. Learned trial court convicted the appellants and acquitted Khurshid Alam. 7. Judgment of conviction and sentence has been assailed on the ground that there is no direct eye witness to the incidence and the judgment of conviction has been passed based on circumstantial evidence. It is submitted by learned counsel on behalf of appellants that the informant (P.W. 1) has admitted in para 21 that he was not knowing Mahboob Alam since before the incidence. In para 28, he has deposed that the vehicle was not found from the house of Mahboob Alam. P.W. 2 who is the brother of the deceased driver, has deposed that the vehicle was not found in the garage of Mahboob Alam. P.W. 3 and P.W. 4 were also not known Mahboob since before the incidence. 8. It is argued by the learned counsel on behalf of appellant-Vakil Ahmad that no disclosure statement was made by this witness and therefore, judgment of conviction cannot be based on the confessional statement of co-accused made before police leading to recovery. 9. Learned A.P.P. has defended the judgment of conviction and sentence. ANALYSIS 10. The present case bears the imprint of a professional criminal where the vehicle is taken on hire, driver is murdered in cold blood, dead body is 2 disposed in a canal and the miscreants decamp with the vehicle. In such cases, it will be too naive to expect direct evidence of homicide which normally occurs when an offence is committed in heat of passion by one, within the confines of home or village. Ironically while there is plethora of direct evidence in normal criminal cases, but there is almost a drought of evidence in offences committed by professional criminals and gangs, where crime is committed with due planning to screen evidence of crime. Circumstantial evidence in such cases turn to be of seminal significance and cannot be attached lesser significance than any direct eye witness. 11. Prosecution evidence discloses the following incriminating circumstances appearing against the appellants:- I. Marshal vehicle bearing registration no.JH 03A 1052 is taken on hire by the appellants on the pretext that sister of Vakil Mistry was on family way and was expecting delivery. Both the appellants had come to take the vehicle as testified by P.W. 1 in para 1 and P.W. 4 has also corroborated this part of prosecution case. II. While leaving Garhwa, driver of the vehicle Shiv Shankar Kumar (deceased) had made a brief halt at his residence to take one bed sheet (Chadar) and at that time, P.W. 2 his brother had seen both the appellants in the vehicle while on way to Daltonganj. P.W. 3 has also corroborated this circumstance. III. The appellants took the vehicle on 20.10.2002 at 5O’ Clock in the evening from Garhwa and after reaching Daltonganj, telephonically informed the arrival there. IV. Appellant- Vakil Ahmad was arrested by police, and on the basis of disclosure statement (Exhibit 3), the dead body of driver Shiv Shankar was recovered on 25.10.2002 from a canal in Aurangabad, as per testimony of P.W. 6 (I.O.). This has been corroborated in the testimony of P.W. 1. V. The looted vehicle was recovered from appellant- Mahboob Alam as deposed by P.W. 2 in para 6. VI. No explanation has been offered by the appellants to these incriminating circumstances. 12. Homicidal death of the driver of vehicle is beyond doubt. P.W. 8 is Dr. 3 Nirmal Kumar who has formally proved the post mortem examination report which has been marked as Exhibit 4. As per the post-mortem examination report, there was strangulation mark around neck and the Doctor opined that the cause of death was strangulation leading to Asphyxia. 13. From the larger picture that emerges on the basis of evidence on record, it can be safely concluded that both these appellants had taken the vehicle on hire from the informant on 20.10.2002 at 5O’ Clock in the evening from Garhwa with the driver, but did not return thereafter. There is no dispute whatsoever that dead body of the driver was found on 25.10.2002. There is no explanation on the part of the appellants as to when they parted company with the deceased. Only the appellants could have offered some explanation regarding the homicidal death of the driver and the vehicle having been taken away. Sections 106 of the Evidence Act cast the burden on the appellants to disclose the facts which resulted in homicidal death of the driver. Having failed to do so, this by itself is sufficient to prove the charge, even if the other circumstances are not taken into account. It has been held in Rajender @ Raju Versus State (NCT of Delhi), (2019) 10 SCC 623: 12.2.4 Having observed so, it is crucial to note that the reasonableness of the explanation offered by the accused as to how and when he/she parted company with the deceased has a bearing on the effect of the last seen in a case. Section 106 of the Evidence Act, 1872 provides that the burden of proof for any fact that is especially within the knowledge of a person lies upon such person. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the court to be probable and satisfactory, and if he fails to offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under Section 106 is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him. This, however, does not mean that Section 106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. Section 106 only lays down the rule that when the accused does not throw any light upon facts which are specially within his/her knowledge and which cannot support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances. 14. As discussed above, recovery of dead body on the disclosure statement of appellant Vakil Ahmad and that of the looted vehicle from Mahboob Alam are further evidence, which leads to irresistible conclusion that appellants were the author of crime in looting the vehicle after committing murder of its driver. 4 15. For the reasons discussed above, I do not find any infirmity in the judgment of conviction and sentence under Sections 364, 302/34 and 201 of the IPC, which is accordingly affirmed. 16. Robbery is an aggravated form of theft which shall be evident from its definition itself under Section 390 which reads as under. Section 390. Robbery.—In all robbery there is either theft or extortion. When theft is robbery.—Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. 17. Very surprisingly charge for the offence of robbery has not been framed. In view of the fact that there was specific charge of abduction and murder committed for looting the vehicle, it cannot be said that the appellants will be prejudiced if they are convicted for the offence under Section 392 of the IPC. Such a course shall be curable under Section 464 of the Criminal Procedure Code. Under the circumstance, the appellants are also convicted under Section 392 of the IPC and sentenced to undergo RI of 10 years and fine of Rs.5000/-. In the event of default of payment of fine SI of one month. All the substantive sentence to run concurrently. With this modification in finding and sentence, appeal stands dismissed.
Decision
Pending Interlocutory Application, if any, is disposed of. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment. (Gautam Kumar Choudhary, J.) Per Ananda Sen, J. I agree. (Ananda Sen, J.) High Court of Jharkhand, Ranchi Dated, 27th August, 2024 AFR/Anit 5