) State of Jharkhand through Deputy Commissioner, Dhanbad v. 1. Vijay Bhuiyan, son of late Lakhan Bhuiyan 2. Karu Paswan, son of Raghu
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Acquittal Appeal No. 23 of 2012 ------ (Against the judgment of acquittal dated 29th March 2012 passed by the learned Sessions Judge at Dhanbad in Sessions Trial No. 125 of 2009) State of Jharkhand through Deputy Commissioner, Dhanbad ...... Appellant Versus 1. Vijay Bhuiyan, son of late Lakhan Bhuiyan 2. Karu Paswan, son of Raghu Paswan Both residents of village-Loyabad, Coke Plant, Sumari Mohalla, PO & PS: Putki, District- Dhanbad ..... Respondents --------- PRESENT
Legal Reasoning
HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA ------- : Mr. Ravi Prakash, Spl.PP : Ms. Sonal Jaiswal, Advocate; Mr. Awinash Kumar, Advocate For the Appellant For the Respondents ------- Oral Order 3rd April 2023 Per, Shree Chandrashekhar,J. The judgment of acquittal in Sessions Trial No. 125 of 2009 has been challenged by the State of Jharkhand by filing this appeal under section 378 of the Code of Criminal Procedure. 2. In a prosecution for the charge under section 302/201 of the Indian Penal Code in which the allegation against Vijay Bhuiyan and Karu Paswan who are the respondent Nos.1 and 2 (hereinafter referred to as “the respondents”) is that in the intervening night of 17th/18th October 2008 they committed murder of Pintu Gupta and caused disappearance of his dead body, the prosecution has examined eleven witnesses. 3. It is pertinent to record that Putki PS Case No. 94 of 2008 was lodged under section 302/201/34 of the Indian Penal Code on 18th October 2008 against thirteen persons including the respondents. After the investigation, Vijay Bhuiyan, Karu Paswan and Dharamvir Rajwar were sent up for trial and the records relating to Dharamvir Rajwar were separated because as on the date of occurrence he was found juvenile. 2 Acquittal Appeal (DB) No.23 of 2012 4. Dr. Shailendra Kumar who proved the post mortem report has found the following antemortem injuries on the dead body of Pintu Gupta: “(1)Incised wounds: (a)5"x1"x muscle deep on the font of neck just above the larynx going from side to side in horizontal direction. The respiratory passage oesophagus, muscle and blood vessels were found sharply cut and divided into two part. (b)2"x1"s muscle deep on the back of right hand, (c)1½”x ½"x muscle deep just above the injury No.(b). (2)Stab wounds; (a)1"x1/4”x muscle deep on the left side of upper lip. (b) 1"x1/4"x bone deep on the left nostril. (c) 1/4"x1/4”x muscle deep just out side the left eye. (d)1/2"x1/4"x muscle deep on the right angle of lower lip. (e) 1"x1/4" x muscle deep on upper portion outer aspect of left arm. (f) 1"x1/4" x muscle deep on upper portion outer front left arm. (g)1 ½”x 1/2" x muscle deep on the back of left fore arm. (h)1"x1/4"x muscle deep on the left side front of chest. (i) 1 ½” x1/2" cavity deep in the epigastric region of the abdomen. (j) 1 ½ "x1/2"x cavity deep on the right flank of chest.” 5. As PW11, the doctor has rendered an opinion that the death of Pintu Gupta has occurred on account of cut injuries over his throat. 6. This is the case of the prosecution that at the instance of Dharamvir Rajwar a knife was recovered. However, there is no eyewitness to the occurrence and the prosecution has failed to disclose how and under what circumstances Pintu Gupta was done to death. 7. Ms. Sonal Jaiswal, the learned counsel for the respondents would submit that mere recovery of crime weapon at the instance of a co-accused is not sufficient to hold the respondents guilty for committing murder of Pintu Gupta. It is further submitted that in a quarrel between the residents of two villages the prosecution without producing any convincing evidence that the respondents have committed murder cannot prove the charge of murder merely on the basis of their presence at the time of quarrel between the villagers. 8. The learned Sessions Judge has appreciated the circumstantial evidence sought to be proved by the prosecution in the following manner: “18. Now court has to see whether evidence adduced by prosecution is sufficient to establish the guilt of the accused persons or there is no evidence against the accused persons. This is a case of where there is no eye witness who had seen committing murder of Pintu. Therefore, there is no direct evidence to link the accused persons for committing murder of Pintu Gupta. There is circumstantial evidence that knife was recovered at the instance of Dharamvir, who is not facing trial before this court as he was declared juvenile. From possession of these accused persons 3 Acquittal Appeal (DB) No.23 of 2012 neither any weapon nor any incriminating thing had been recovered. Therefore, no circumstantial evidence could come against these accused persons. Only circumstance against them is that quarrel had taken place between resident of Bhuinya patti and Munda patti and these accused persons are resident of Bhuinya patti. only one circumstance has come in evidence that these accused persons along with Dharamvir Rajwar had threatened to see the resident of Munda Patti except this there is no evidence against these accused persons. Mere on extending threat it can not be presumed that they had committed murder of Pintu Gupta. Since accused persons are facing charge U/s 302/201, therefore, court has to see whether accused persons did any act to cause death of Pintu Gupta or the caused any bodily injury knowing that such injury could cause death of Pintu Gupta and concealed the dead … … …. ” body. … … … … … … 9. In a case based on circumstantial evidence the circumstances on the basis of which the conclusion of guilt is to be drawn must be fully established, of a conclusive nature and must exclude all possible hypothesis except the one which must unerringly establish that it was the accused who has committed the crime. 10. In “Hanumant Govind Nargundkar v. The State of Madhya Pradesh” AIR 1952 SC 343 the Hon'ble Supreme Court has held as under: “10....It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused....” 11. The case of the prosecution against the respondents is based on the circumstance that in a quarrel between the villagers of Bhuiyan Patti and Munda Patti the respondents along with Dharamvir Rajwar had threatened the villagers of Munda Patti with dire consequences. 12. There was no other incriminating circumstance produced by the prosecution to prove involvement of the respondents in murder of Pintu Gupta. There was no recovery from the respondents and the recovery of knife at the instance of co-accused has not been shown to have any connection with the respondents. Evidently, there is not even a chain of circumstances to indicate participation of the respondents in the crime. 4 Acquittal Appeal (DB) No.23 of 2012 13. In “Jaswant Singh v. State of Haryana” (2000) 4 SCC 484 the Hon'ble Supreme Court has held as under: “21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable” it is a compelling reason for interference Sahabrao Bobade v. State of Maharashtra). The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat : (SCC p. 229, para 7) (see Shivaji “While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then — and then only — reappraise the evidence to arrive at its own conclusions.” (See also George v. State of Kerala).” 14. Having thus examined the materials on record, we do not find any ground to interfere with the judgment of acquittal passed by the learned Sessions Judge at Dhanbad in Sessions Trial No. 125 of 2009 and, accordingly, Acquittal Appeal No. 23 of 2012 is dismissed. 15. Let the lower Court records be sent to the Court concerned forthwith. 16. Let a copy of the judgment be transmitted to the Court concerned through 'FAX'. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 3rd April, 2023 S.B./Nibha-N.A.F.R