High Court
Case Details
Criminal Appeal (DB) No. 392 of 2018 … Against the judgment of conviction dated 19.02.2018 and order of sentence, dated 21.02.2018, passed by the learned Additional Sessions Judge-III, West Singhbhum at Chaibasa in Sessions Trial No. 234 of 2012. … Lal Mohan Pingua … Appellant -V e r s u s- The State of Jharkhand … Respondent. For the Appellant For the Respondent … : - Mr. Shiv Prasad Singh, Advocate. : - Mr. Pankaj Kumar, Spl.P.P. … P R E S E N T: - SRI ANANDA SEN, J. SRI SUBHASH CHAND, J. … Per Sri Ananda Sen, J. Heard the learned counsel for the appellant and the learned counsel appearing for the State. 2. We have gone through the trial court records. 3. This appeal is preferred against the judgment of conviction dated 19.02.2018 and order of sentence, dated 21.02.2018, passed by the learned Additional Sessions Judge-III, West Singhbhum at Chaibasa in Sessions Trial No. 234 of 2012, whereby the appellant has been convicted for committing the offence under Section 302, 201 of the Indian Penal Code, who has been sentenced to undergo rigorous imprisonment of life under section 302 of the Indian Penal Code and also to pay a fine of Rs.10,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months and rigorous imprisonment for seven years with a fine of Rs.10,000/- for the offence under section 201 of the Indian Penal Code and in default of payment of fine to undergo further rigorous imprisonment for six months. 4. Learned counsel for the appellant submits that solely on the basis of confessional statement of this appellant, which allegedly relates to recovery of skeleton, which is alleged to be that of the deceased, the appellant has been convicted. He submits that except suspicion and the aforesaid confessional statement, there is no material to implicate this appellant in this case. 5.
Legal Reasoning
Learned A.P.P. appearing on behalf of the State opposes the prayer and submits that the appellant has confessed his guilt that he has committed murder of the deceased and concealed the body in a forest, which falls within the State of Odisha. He submits that this information can only be with the appellant and none else, thus, it can safely be presumed that the appellant had committed the offence. He further submits that there is motive as in the F.I.R. itself, it has been mentioned that there was some dispute between the appellant and the family of the deceased, as they were brandishing them as witch. On this ground, he submits that there is sufficient material to convict the appellant. 6. After hearing the parties, we have gone through the F.I.R. and the depositions and other documents including the exhibits. We are only dealing with the relevant materials and the depositions, which is sufficient to dispose of this appeal. It is not necessary to narrate each and every statement as it will only multiply the pages and nothing else. 2 [Cr. A. (DB) No. 392/2018] 7. The F.I.R. is instituted at the instance of the father of the deceased, who is P.W.-1. He states that on 03.07.2012, his entire family members except the deceased went to their relative’s house to attend a ‘Shradh’ ceremony. The deceased stayed behind. On 05.07.2012 at about 2 p.m., when they returned they did not find this deceased. The informant searched him, but his whereabouts were not known. Some of the villagers told him that they had seen the deceased two days’ ago. The informant, thus, concluded that since two years’ back, there was some dispute with this appellant and his brother, it is probable that they might have kidnapped or killed him. Thus, on suspicion, Manjhgaon P.S. Case No. 25 of 2012 was registered on 09.07.2012 under Sections 364/34/120B of the I.P.C. 8. The Police started investigation and arrested one Rajendra Pinguwa @ Ravindra Pingua. His confessional statement was recorded. The appellant surrendered before the concerned court and he was taken on police remand. He was interrogated and it is alleged that he has confessed his guilt and on his confessional statement, a skeleton was found inside a gunny bag in shorts and a ‘gamchha’ (towel) in the forest of Odisha State, which was identified by the father of the deceased. Police submitted charge sheet under sections 364, 120 B, 34, 302 and 201 of the Indian Penal Code. As the appellant claimed innocence, he was put on trial after framing of charge. 3 [Cr. A. (DB) No. 392/2018] 9. Altogether 10 witnesses were examined in this case, out of which, P.Ws. 3, 4, 5, 6 and 7 were declared hostile. There is nothing important in their statements. P.W. no. 1, Viren Lohar is the father of the deceased and the informant. He reiterated his statement, which he had made in the Fard-beyan. He stated that there was enmity between the appellant and their family and a few years ago, the appellant had assaulted their entire family, branding them as witch. He also stated that they had threatened him and the other family members of dire consequences. This incident, which he had narrated, is about one and half years old from the date of the offence. He also stated that he has identified the skeleton to be of his son and that too on the basis of the wearing apparels i.e. the shorts. P.W. no. 2, Lembo Lohar, is the wife of the informant and mother of the deceased Bati Lohar. She stated that they went to the house of their relative to attend a ‘Shradh’ ceremony but, when they returned, they could not find the deceased. Her son was murdered and the dead body was thrown in a hillock and this appellant along with the police went there and the body was recovered. She stated that a day before the occurrence, there was altercation between the appellant and the deceased. In cross- examination, she identified this appellant. She stated that she had not seen this appellant committing murder of the deceased. She 4 [Cr. A. (DB) No. 392/2018] stated that a ‘gamchha’ was also recovered and nothing more was stated by her. P.W. no. 8, Dr. Lallan Chaudhary is the Doctor. From the evidence of the Doctor, we find that what was recovered was only bones i.e. skeletal remains. He opined that all bones belongs to human being and belongs to one individual. The bones are of a male, aged about, 25 plus minus 3 years approximately. Blood stains over cervical verterbrae was ante-mortem and caused by the hard and blunt object. Cause of death is pressure over neck. Time since death, 3 to 4 months approximately. P.W. No. 9, Prabhat Kumar Singh is the Investigating Officer. This I.O. exhibited the F.I.R. and other documents, but the main important statement of the I.O. is that he arrested the co- accused, namely, Ravindra Pingua. He stated that he recorded his confessional statement. He exhibited the said statement as Exhibit- 5. He stated that thereafter this appellant surrendered in Court. He was taken on police remand and his confessional statement was also recorded. The said statement was exhibited by him as 5/1. In paragraph 7 of his evidence, he stated that he recorded the statement of village Munda, Mangal Singh Pingua. On pointing out of this appellant, the human skeleton was seized. He exhibited the seizure list, which is marked as 4/1. He stated that he submitted the charge-sheet and he recorded the statement of other witnesses. Nothing more important could be extracted from his statement. 5 [Cr. A. (DB) No. 392/2018] P.W. No. 10 Madan Tiwary, who is an Assistant Sub- Inspector of Police, who stated that on the basis of confessional statement of this appellant, he along with this appellant and other police officials recovered the skeleton from village Bhagabundi, Thana-Jasipur, District-Mayurbhanj (Odisha) from the forest. He stated that a seizure list was also prepared. 10. From the aforesaid evidence, we find that the entire case is based on circumstantial evidence. The circumstances to convict this appellant are:- (i) That there was prior enmity between the families; and (ii) On the confessional statement of this appellant, a skeleton was found, which was identified to be that of the deceased. According to us, these two circumstances are very weak in nature to convict this appellant. So far as prior enmity is concerned, in the F.I.R., the informant states that this appellant had assaulted the entire family of the deceased a year back from the date of disappearance of the deceased. Due to this long time gap, the same (enmity) cannot be an important. Further, there is a contradiction as P.W. 2, mother of the deceased, stated that a day prior to the occurrence, some altercation had taken place, none other said so. 11. Now the remaining circumstance is the recovery of the skeleton. Be it noted that there is no D.N.A. report to suggest that the skeleton belong to the son of the informant. Further, the identity 6 [Cr. A. (DB) No. 392/2018] of the skeleton is also doubted, as it has been deposed that only on the basis of the wearing apparel i.e. a ‘gamchha’ and a nikar (shorts), P.W. 1 identified the skeleton to be that of his son. Surprisingly, those apparels were not produced before the Court for identification. 11. So far as the confessional statement is concerned, we find that both P.W. 9 and P.W. 10, who were the police officials, stated that they have recorded the confessional statement, on whose basis, the body was recovered. P.W. 9 had exhibited the confessional statement of this appellant, which was marked as 5/1. The Hon’ble Supreme Court in a very recent judgment, delivered on 19th April, 2024, reported in 2024 SCC Online SC 561, Babu Sahebagouda Rudragoudar and Others-Vs.-State of Karnataka has reiterated as to how much of the information received from the accused can be proved under Section 27 of the Evidence Act and how the same has to be exhibited. In paragraph 58 onwards of the aforesaid judgment, the Hon’ble Supreme Court discussed about the requirement under the law so as to prove a disclosure statement recorded under Section 27 of the Indian Evidence Act. After referring to several earlier judgments of the Hon’ble Supreme Court, it was held that mere exhibiting the memorandum prepared by the Investigating Officer during investigation cannot tantamount to proof of its contents. It has been held that while testifying on oath, the Investigating Officer 7 [Cr. A. (DB) No. 392/2018] would be required to narrate the sequence of events leading to the discovery of incriminating facts. 13. In this case, we have perused the entire evidence of P.W. 9 and P.W. 10. Nowhere in the statement, the sequence of events have been disclosed. It is only the confessional statement, which was recorded, has been exhibited. Thus, in terms of the judgment of the Hon’ble Supreme Court, the same cannot be looked into, as the same is inadmissible in evidence. 14. Further, from the records, we find that the only material to implicate this appellant in the offence is the recovery of the skeleton on the alleged inadmissible evidence. The Hon’ble Supreme Court in Uppala Bixam @ Bixmaiah- Vs.State of Andhra Pradesh reported in (2019) 13 SCC 802 has held that the only recovery of a dead body on the basis of confessional statement, cannot be sufficient to establish guilt of the accused. It is necessary to quote paragraph 9 of the said judgment, which reads as follows:- relied upon by “9. The only other circumstance the prosecution is the recovery of the dead body of the deceased Ramesh on the basis of the confession of the appellant- accused. In our considered view this only circumstance by itself may not be sufficient to establish the guilt of the accused. It was also submitted on behalf of the appellant- accused that in his questioning under Section 313 CrPC the appellant-accused has denied making of any confessional statement and recovery of dead body of the deceased Ramesh at his behest. It was further argued that recovery of the dead body of the deceased Ramesh after two days of the occurrence also raises doubt about the prosecution case.” 8 [Cr. A. (DB) No. 392/2018] 16. In this case also, we find that while the statement of this appellant was recorded under Section 313, Cr.P.C., he denied giving any such statement before the police. He also denied recovery of the skeleton, based on his statement. 17. Considering what has been held above, we find that the conviction of the appellant cannot be sustained and the same is bad, as the entire chain of circumstances is not complete. Thus, we are inclined to allow this appeal and acquit the appellant. 18. In the facts and circumstances of the case, the conviction of the appellant under Sections 302, 201 of the I.P.C. vide judgment of conviction dated 19.02.2018 and order of sentence dated 21.02.2018 passed by learned Additional Sessions Judge-III, West Singhbhum at Chaibasa in S.T. No.234 of 2012, is hereby set aside and accordingly the sentence awarded by the learned Trial Court vide order dated 21.02.2018 is also set aside. 19. Accordingly, this Criminal Appeal is allowed. 20. This Court directs the above named appellant to be released forthwith from custody, if not required in any other case. Jharkhand High Court, Ranchi. Dated – The 23rd April, 2024 APK/A.F.R. (Ananda Sen, J.) (Subhash Chand, J.) 9 [Cr. A. (DB) No. 392/2018]