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2016 DIGILAW 78 (JHR)

Anil Kumar @ Anil Mahto v. State of Jharkhand

2016-01-08

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : 1. This criminal appeal has been directed against the judgment of conviction and order of sentence dated 07.03.2006, passed by the Learned Additional Sessions Judge, Fast Track Court-VII, Hazaribagh, in connection with Sessions Trial No. 403 of 2002, corresponding to Ramgarh, P.S. Case No. 201 of 2001, G.R. Case No. 1653 of 2001, whereby the appellant Anil Kumar and co-accused Pancham Mahto have been held guilty for the offence punishable under Sections 364, 302, 201/34 of Indian Penal Code and sentenced to undergo rigorous imprisonment for life under Section 364 and 302 of Indian Penal code and rigorous imprisonment for three years under Section 201/34 of Indian Penal Code and both the sentences have been directed to run concurrently. 2. The prosecution case, as it appears from the written report lodged by Chuneshwar Mahto is that from 16.07.2001 Kanchan Kumar, aged about ten years, son of the informant, was found missing from his school gate. In course of search, on 17.07.2001 a betel shopkeeper, who happens to be the son of Tara Mahto, disclosed that he had seen the appellant- Anil Kumar taking Kanchan kumar (deceased) on his bicycle. On 18.07.2001 the written report was lodged and a case under Section 364 of the I.P.C. against Anil Kumar being Ramgarh P.S. Case No. 201 of 2001 dated 18.07.2001 was registered. During investigation dead body of Kanchan Kumar was recovered as such Sections 302, 201/34 of the Indian Penal Code have been added vide order dated 20.07.2001. After due investigation charge-sheet was submitted against accused-appellant Anil Kumar and Pancham Mahto. Accordingly cognizance of the offence was taken and the case was committed to the Court of Sessions and it was registered as S.T. No. 403 of 2002. 3. Initially charge was framed against Anil Kumar and Pancham Mahto under Section 364 of the I.P.C. on 03.2.2003. Thereafter, charges under Sections 302, 201/34 of the Indian Penal code were also framed on 31.03.2003. Since the appellant did not admit the charge and claimed to be tried, he along with co-accused Pancham Mahto was put on trial. The prosecution in order to substantiate the charges examined altogether 20 witnesses. Learned Additional Sessions Judge at the conclusion of trial, placing reliance on evidence and documents available on record held the appellant and co-accused Pancham Mahto guilty under Sections 364, 302, 201/34 of the Indian Penal Code and scented them, as indicated above. The prosecution in order to substantiate the charges examined altogether 20 witnesses. Learned Additional Sessions Judge at the conclusion of trial, placing reliance on evidence and documents available on record held the appellant and co-accused Pancham Mahto guilty under Sections 364, 302, 201/34 of the Indian Penal Code and scented them, as indicated above. 4. It is necessary to mention here that no appeal on behalf of co-convict Pancham Mahto has been preferred, whereas the appellant has preferred this appeal challenging the findings of the trial Court. 5. Learned counsel for the appellant has assailed the impugned judgment on the ground that the case of the prosecution is based on circumstantial evidence and chain of circumstantial evidence is not leading to the guilt of the appellant, excluding all hypothesis of his innocence. Learned Additional Sessions Judge has taken help of confessional statement of the appellant for considering the motive behind the murder. Needless to mention, confession before police is not admissible in law. Therefore, the learned Trial court has committed error by placing reliance on the confessional statement of the appellant and co-convict. The parents of the deceased, who are PWs. 17 and 18, have not thrown light on the motive, which has been brought on record. These two witnesses have not disclosed about enmity, if prevailing between the appellant and his family. Motive plays an important role in deciding a case, based on circumstantial evidence. 6. Learned counsel for the appellant has submitted that statements given in the written report are based on hearsay. The betel shopkeeper, whose identity has been disclosed as that of son of Tara Mahto did not disclose name of the appellant in his deposition in Court. The contention made in the written report does not find support from the statement of PW-10 Sanjeet Kumar who is nonelse but the son of Tara Mahto. He says that deceased Kanchan Kumar was taken by someone on his bi-cycle, which creates doubt on the varacity of statements given by the informant in the written report. 7. The investigating officer has not been examined and that has caused prejudice to the appellant. The defence could not able to pin point the place of occurrence or the place from where the dead body was recovered. Prejudice has also caused due to recording of confessional statement of the appellant and co-convict. 7. The investigating officer has not been examined and that has caused prejudice to the appellant. The defence could not able to pin point the place of occurrence or the place from where the dead body was recovered. Prejudice has also caused due to recording of confessional statement of the appellant and co-convict. It has not been made clear as to how and when and from where the appellant and co-convict were apprehended. Contradictions in the statement of a witnesses are appearing and to find out the truth, those statements were required to be referred to the investigating officer, had he been examined. Therefore, non-examination of investigating officer is fatal to the prosecution case. Last but not the least it is argued that prosecution has increased the weight of record by examining as many as twenty witnesses, but did not succeed to bring home the charges levelled against the appellant beyond shadow of all reasonable doubt. In the circumstances the impugned judgment of conviction and order of sentence dated 07.03.2006, passed by the learned Additional Sessions Judge, Fast Track Court-VII, Hazaribagh in connection with S.T. No. 403 of 2002 is liable to be set aside. 8. On the other hand, learned counsel appearing for the State has submitted that it is a well proved case, only because of non-examination of investigating officer, the evidence brought on record cannot be thrown away. Most reliable and independent witnesses had been examined by the prosecution and they have fully supported and corroborated the prosecution case. After knowing the fact that a boy aged about 10 years was kidnapped, the villagers became vigilant and as soon as they saw the appellant, he was apprehended and was brought by them near a Temple. In presence of independent witnesses, the appellant and co-convict had confessed their guilt. In the meantime after receiving information, the police also arrived at the place and recorded confessional statement of the appellant and co-convict in presence of so many witnesses. Not only that many of them have been examined and they have supported the prosecution case and proved their signature appearing on those confessional statements. On the basis of confession made by the appellant and co-convict, dead body of Kanchan Kumar was recovered from Rajrappa Forest situated near Bhairbi river bank. Not only that many of them have been examined and they have supported the prosecution case and proved their signature appearing on those confessional statements. On the basis of confession made by the appellant and co-convict, dead body of Kanchan Kumar was recovered from Rajrappa Forest situated near Bhairbi river bank. The witnesses in whose presence the confession was recorded were so anxious that they followed the police up to the place where the dead body was concealed. The fact that the deceased was taken by the appellant on his bicycle, finds support from the statement of PW-1, thereafter deceased was not seen alive. When the informant could learn about the involvement of appellant in the alleged crime information was lodged before the police on 18.07.2001. On the very next day dead body was recovered in presence of so many witnesses. It is not a case of only last seen, rather it is also a case of leading to discovery of the dead body and therefore, aforesaid part of confession of appellant is admissible in law. The prosecution evidence is fully intact and the learned Additional session Judge has rightly recorded the conviction and passed the order of sentence and that need no interference. 9. Heard learned counsel appearing from both sides, we have gone through the case record, deposition of witnesses and the documents proved and marked exhibits. It is true that in a case of circumstantial evidence motive is an important aspect to decide the case, but it is always not important and that depends upon the facts and circumstances of each and every case. In the case at hand the prosecution has not assigned any motive rather it is the appellant who has made it clear in his confessional statement. It is the appellant who says that he was intending to marry the daughter of the informant and for that some negotiation had taken place. The mother PW-18 had given her consent to marry her daughter with the appellant but the father did not agree and that caused annoyance to the appellant and he has decided to give lesson to them. According to his confession, he kidnapped Kanchan Kumar (deceased) son of the informant and killed him. Since the prosecution has not assigned any motive behind the murder, it is not expected from them to adduce any evidence on that point. According to his confession, he kidnapped Kanchan Kumar (deceased) son of the informant and killed him. Since the prosecution has not assigned any motive behind the murder, it is not expected from them to adduce any evidence on that point. It is quite impossible to read human mind as to what is going on. The parents of the deceased did not able to read as to what was playing in the mind of culprits. Since they were not having enimical term with the appellant, it was beyond their imagination that such an occurrence could take place. 10. Now, coming to the evidence on record. Admittedly PW-10 who is the betel shopkeeper, son of Tara Mahto, did not disclose name of the person who had taken the deceased on his bicycle and he has gone to the extent of saying that he would not be able to identify that person, but the facts remain that he has supported the fact that Kanchan Kumar was taken by someone on his bicycle on 16.07.2001 from the school gate. To verify this aspect of the prosecution case, we have anxiously perused the statement of remaining witnesses and we find that Manoj Sharma PW-1, who runs a saloon near the place of occurrence, has stated that the appellant Anil Kumar and co-convict Pancham Mahto had been to his saloon on 16.07.2001 and had combed their hair. He has further deposed that he had seen the appellant and Pancham Mahto taking Kanchan Kumar with them on their bicycle. When the news of Kidnapping of Kanchan Kumar spread over in the village and nearby locality, he has passed on the information to villagers and witnesses including the mother of the deceased. The statement of PW-1 finds support from the statement of PW-18 who is mother of the deceased. Some more witnesses have supported the case that Manoj Sharma had told them that the boy was taken by the appellant. So prosecution has successfully proved this fact that deceased Kanchan Kumar was taken by the appellant and his associates on their bicycle to an unknown place. The evidence on record clearly indicates that the boy was not seen alive thereafter. The witnesses have further supported the fact that appellant and his associate Pancham Mahato were apprehended by them on 19.07.2001 and they were brought to the nearby temple where more people assembled. The evidence on record clearly indicates that the boy was not seen alive thereafter. The witnesses have further supported the fact that appellant and his associate Pancham Mahato were apprehended by them on 19.07.2001 and they were brought to the nearby temple where more people assembled. When the appellant and his associate were interrogated, they confessed their guilt and disclosed that they had killed Kanchan Kumar and concealed the dead body, somewhere within Rajrappa Forest. In the meantime, the police arrived at the place and recorded confession of the appellant and his associate Pancham Mahato. On the basis of confession made by the appellant, the police along with witnesses proceeded towards Rajrappa Forest. On the pointing out of the appellant, dead body of deceased Kanchan Kumar was recovered. The witnesses, in whose presence confession of appellant and co-convict was recorded, have proved their signatures appearing on the aforesaid confessional statement of appellant and his associate. The witnesses proceeded along with the police and the appellant to the place where the dead body of Kanchan was concealed. Subodh Kumar Dangi PW-4 and Shailesh Kumar Dangi PW-2 are the witnesses to the inquest report as also witnesses to the confessional statement made by the appellant and co-convict. These witnesses have proved their signatures on the inquest report as well as confessional statement of the appellant and his associate. The witnesses, in whose presence dead body was recovered, have further stated that copies and books belonging to deceased were found scattered near the place. The deposition of witnesses, in whose presence dead body was recovered and the confession of the appellant and his associate was recorded, appears so natural and truthful when they say that the appellant and his associate were apprehended in their presence and confessed their guilt which was recorded by the police. When the police along with the appellant and his associate proceeded towards Rajrappa Forest they also followed. Some of them have said that this appellant after reaching to the place within Rajrappa forest has pointed out the place where the dead body was concealed. 11. We find that it is a clear case of leading to discovery of the dead body and that has well been proved. Some of them have said that this appellant after reaching to the place within Rajrappa forest has pointed out the place where the dead body was concealed. 11. We find that it is a clear case of leading to discovery of the dead body and that has well been proved. The case of the prosecution stands intact on the point that deceased was taken by the appellant and his associate towards an unknown place and the dead body on the basis of confession made by them was recovered in presence of the witnesses. We do not find exaggeration in the statement of witnesses rather it appears truthful and convincing and uninfluenced from any corner. 12. We do not find any reason of false implication of the appellant or the co-convict. In the circumstances, we do not feel inclined to interfere with the findings of the trial court. Accordingly, the judgment of conviction and order of sentence dated 07.03.2006, passed by the Learned Additional Sessions Judge, Fast Track Court-VII, Hazaribagh, in connection with Sessions Trial No. 403 of 2002, corresponding to Ramgarh, P.S. Case No. 201 of 2001, G.R. Case No. 1653 of 2001, is hereby upheld. 13. Accordingly the appeal is hereby dismissed.