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2009 DIGILAW 536 (JHR)

Satish Chandra Barnwal v. State of Jharkhand

2009-04-15

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT : This revision application is against the judgment of acquittal dated 29.01.2009 passed by learned Additional Sessions Judge, F.T.C., Koderma in S.T. No. 121 of 2007. 2. The revision of the judgment has been sought on the ground that the evidences of P.W.-3, P.W.-14, P.W.-15 and P.W.-18 have not been duly considered by the learned court below and the accused-opposite party no. 2 has been erroneously acquitted. 3. Mr. Kashyap, learned Sr. Counsel appearing on behalf of the petitioner submitted that there is a failure on the part of the learned trial court as he has not considered the conduct of the accused and vital piece of evidence and has recorded his finding illegally. The impugned judgment is vitiated and fit to be set aside on account of non-consideration of material evidences. Learned counsel referred to and relied on the decision of the Supreme Court in Ram Briksh Singh and others Vs. Ambika Yadav and another 2004 (7) SCC 665 and submitted that the revisional court can set aside an order of acquittal and remit the case for retrial, where trial court, overlooking material evidence, has passed the order. 4. Learned A.P.P. on the other hand submitted that from the impugned judgment, it is evident that learned court below has considered the evidences on record thoroughly. Learned Court on due appraisal of evidences and material on record found and held that there is no direct evidence in the case. It is a case of only last seen. The prosecution failed to prove the charge even by circumstantial evidences. There is no proper link to complete the chain of the circumstances to hold that the accused and nobody else was the author of the said crime. Learned court below did not get sufficient evidence and thus, rightly acquitted the accused in absence of any cogent, reliable and credible evidence. 5. Having heard the learned counsel, we also closely examined the impugned judgment. Learned court below has discussed all the evidences oral and documentary in detail. He has also discussed the evidences of all prosecution witnesses including the evidences of P.W.-3, P.W.-14, P.W.-15 and P.W.-18 referred to by Mr. Kashyap. After thorough appraisal and discussion of the evidences on record, learned court below has come to the conclusion that the evidences are not cogent and credible to hold the accused persons guilty. 6. He has also discussed the evidences of all prosecution witnesses including the evidences of P.W.-3, P.W.-14, P.W.-15 and P.W.-18 referred to by Mr. Kashyap. After thorough appraisal and discussion of the evidences on record, learned court below has come to the conclusion that the evidences are not cogent and credible to hold the accused persons guilty. 6. In Paragraphs 32 to 39, he has given the reasons in detail as to why, he has not found the evidences of the prosecution reliable and credible and concluded that the prosecution failed to prove the charge against the accused person beyond the shadow of all reasonable doubt. The aforesaid paragraphs are quoted hereinbelow: “ 32. From perusal of the evidence of P.W.-6 it appears to me that he is the first I.O. of the case. During the course of his investigation, he had tried to receive the print out of mobile relates with deceased Pinku and after receiving that print out this I.O. had come to know that Pinku had talked on mobile no. 9334433905 and that mobile number was of Rakesh Sen Gupta and that talk was done on the date of alleged occurrence and in this way Rakesh Sen Gupta had been made accused of this case. But with regard to the above print out of concerned mobile only the oral evidence of P.W.-6 is available on record. No any chit of paper to prove the above investigating act of the I.O. is on record. With this regard the learned A.P.P. has tried his best to produce the same with the help of the court, but inspite of helping hands of the court the prosecution has failed to produce the relevant and alleged print out of mobile. From perusal of the evidence of P.W.-6 it also appears to me that no any mobile was recovered and received by this witness. On this point all the material witnesses have supported the fact that no any mobile was found, recovered and seized by the police from the place of occurrence. In such circumstances, the story regarding the print out of mobile could not be proved with the cogent, reasonable, credible and believable piece of evidence. P.W.-16 the second I.O. of this case has also supported the above facts that Ex. I.O. had got success to receive the print out of the mobile. In such circumstances, the story regarding the print out of mobile could not be proved with the cogent, reasonable, credible and believable piece of evidence. P.W.-16 the second I.O. of this case has also supported the above facts that Ex. I.O. had got success to receive the print out of the mobile. This witness did not investigate about the story of mobile print out. So from the evidence of the above I.Os. it is very clear to me that first I.O. of this case has implicated this accused in this case on the basis of mobile out print, but the prosecution could not get success to prove the mobiles of the deceased as well as to prove the mobile of the accused. From the evidence of P.W.-16 it also appears that after one month of arrest of accused his confessional statement was recorded and the accused had confessed about his guilt. With this regard it is settled principle of law that confessional statement before the police is not admissible in the eye of law. In the above settled principle of law I find that in the present case the second I.O. of this case has admitted this fact that after one month of arrest of the accused his confessional statement was recorded by this witness. Therefore, I come to the conclusion that the confessional statement of accused, recorded by the police after one month of arrest is not admissible in the eye of law. So far the out print of mobile is concerned, on this point only the oral evidence of P.W.-6 is available, in support of which no any documentary piece of evidence could be brought on record to prove the above statement of the I.O. (P.W.-6). 33. The above mentioned facts support that the accused has been made accused in this case on the basis of out print of mobile and not on the basis of evidence of P.W.-1, 3 and 18. The evidence of P.W.-1, 3 and 18 are brought in the case diary after the out print of mobile as well as after his arresting but no any chit of paper regarding out print of mobile or mobile of accused or deceased could be produced before the court. The evidence of P.W.-1, 3 and 18 are brought in the case diary after the out print of mobile as well as after his arresting but no any chit of paper regarding out print of mobile or mobile of accused or deceased could be produced before the court. In such circumstances, I am of the view that there is no any cogent, reliable, reasonable and believable evidence on record to make the chain of circumstances in proving the probabilities of the criminal act of the accused for causing the death of the deceased. 34. From perusal of the evidence of remaining material witnesses, I find that none of the remaining witnesses are reliable as all these witnesses happens to be the hearsay witnesses and the relatives of the deceased. With this regard I find that P.W.-3, 7, 11, 17 and 18 along with the informant P.W.-15 have admitted the fact that they are relatives of the deceased, who came to know about going to Ranchi of Pinku with Rakesh Sen Gupta, but none of them has disclosed this fact before the police, while all these persons were present at the place of occurrence. From perusal of their evidence it also appears to me that the statement of the relevant witnesses are recorded by the police after long gap of lodging the case. That delay examination of material witnesses could not be explained by any of the I.O. or by prosecution or by the concerned P.Ws. while they are residing in their respective home. Hence in my opinion delay examination of material witnesses is fatal to the prosecution case. 35. From the above piece of evidence, I find that only the circumstance of last seen has been brought by the prosecution. Besides the fact the out print of mobile could be brought only by the evidence of P.W.6. In support of that piece of oral evidence no any chit of paper could be produced. So the oral evidence regarding out print of mobile is a weak piece of evidence which could not be made reliable, cogent and credible, but from the evidence of P.W.3 and 18 it is very clear to me that both of them have stated about the last seen of the accused with the deceased. So the oral evidence regarding out print of mobile is a weak piece of evidence which could not be made reliable, cogent and credible, but from the evidence of P.W.3 and 18 it is very clear to me that both of them have stated about the last seen of the accused with the deceased. With regard to circumstantial evidence of last seen it is well settled principle of law that only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused. In the present case there is piece of evidence that the deceased was the best friend of the accused. In such circumstances, the motive of the accused to cause the death of the deceased should be brought on record, but with this regard no any motive or intention preparation could be brought on record. Therefore only the last seen is not sufficient to hold the guilty of the accused. The circumstance of last seen needs to be corroborated from the reliable and cogent evidence. But in the present case no any reliable and corroborative piece of evidence to support the intention or motive of the accused to kill the deceased could be brought on record. 36. So far the evidence of P.W.2 (father of the deceased) and P.W.14 (Mother of the deceased) is concerned, P.W.2 is also the hearsay witness, who came to know about the relevant facts from his wife, while P.W.14 had not seen the accused with the deceased. In such circumstances, their evidence on the point of circumstance of last seen is not believable and appears to be the hearsay evidence. 37. Besides the above facts, from the evidence of P.W.2, 3, 6 and 14 it appears to me that on 26.08.06 father of the deceased has lodged a sanha for missing his son in Telaiya P.S., but thqt sanha could not be brought on record. No any explanation regarding non-production of that sanha is on record. With regard to sanha, it is well settled principle of law that the suppression of sanha by the prosecution leads to an adverse inference against the prosecution case. No any explanation regarding non-production of that sanha is on record. With regard to sanha, it is well settled principle of law that the suppression of sanha by the prosecution leads to an adverse inference against the prosecution case. In the present case, it is apparent that prior to give the fard beyan (Ext.1) on 27.08.06, the father of the deceased has lodged a sanha on 26.08.06 in Telaiya P.S., but that Sanha could not be made available by the prosecution. With this regard no any explanation could be given on behalf of the prosecution. In the murder case the Sanha, which was lodged prior to give the fard beyan is fatal to the prosecution. Therefore, adverse inference goes against the prosecution case. 38. I want to discuss the date of occurrence with the date of post mortem examination. According to the fard beyan as well as the evidence of P.W.-1 it appears to me that in the evening of 25.08.06 the cause of death of deceased was done. From perusal of Ext.4 (post mortem report) it appears to me that the post mortem examination on a dead body of Ashish @ Pinku Modi was conducted by Dr. Sharad Kumar Joshi, Medical Officer of sadar hospital, Koderma that post mortem examination was done on 27.08.06 at 4 P.M. According to his opinion the time elapsed since death is about 38 hours. According to his opinion, the death of the deceased was caused after the mid-night on 26.08.06. With regard to this time, now I again perused the evidence of P.W.-1 and found that in the evening of 25.08.06 he had seen the accused with Jatin Jethua on a motorcycle coming out from inside the forest. It means either the evidence of P.W.-1 is doubtful about the appearance of the accused in the evening on 25.08.06 at Jawahar ghati or the opinion of doctor as available in Ext.4 is doubtful. All these situations naturally go to show how that the prosecution has no clean hands to prove the complicity of the accused in committing the murder of deceased. All these situations naturally go to show how that the prosecution has no clean hands to prove the complicity of the accused in committing the murder of deceased. With regard to the above facts, I find that incomplete chain of circumstances are tried to be proved, but no any back ground or facts could be brought on record to link the chain of circumstances as well as to prove within all human probabilities that there are cogent and credible evidence on record to prove that the accused was only or one of the person to commit murder of the deceased. 39. From the above discussed facts and circumstances of this case as well as the prosecution evidences, I find that in the present case the quantity of P.Ws. is available, but the quality of their evidence to prove the link and chain of circumstances is missing. Having regard to the above my own discussed opinion, now I come to the conclusion that the I.O. has ignored the facts and circumstances of the fard beyan and brought a new case with the help of non-produced out print of mobile, which could not be proved by cogent, believable and reliable evidences. Similarly, the prosecution has not proved the last seen of the accused with the deceased from the cogent, credible and probable evidence. Therefore, I am of the view that in the present case not even a circumstantial chain could be proved beyond the shadow of all reasonable doubt. Keeping in view of the above discussed my own opinion, I am again of the view that no any link in the chain of circumstances could be proved without any shadow of reasonable doubt. Therefore, in my opinion, the prosecution has miserably failed to prove the complicity of the accused in causing the death of the deceased at Jawahar ghati beyond the shadow of all reasonable doubt in the manner as alleged.” 7. Considering the elaborate discussion and consideration of the facts, evidences and material on record had by learned trial court before arriving at the conclusion, we find no illegality, impropriety or incorrectness in the impugned judgment. 8. The petitioner has not made out any ground that any error of record has been committed by learned court below or any piece of material evidence on record has not been considered. 8. The petitioner has not made out any ground that any error of record has been committed by learned court below or any piece of material evidence on record has not been considered. The petitioner has also not specifically pointed out that any evidence of the prosecution oral or documentary has been overlooked by learned trial court. In that view, the decision in Ram Briksh Singh & others (supra) has no application to the facts of the instant case and is of no help to the petitioner. 9. We, therefore, find no ground made out to entertain this revision and the same is accordingly dismissed.