IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. (DB) No. 287 of 2009
Satish Chandra Barnwal ... ... Petitioner
Vs.
The State of Jharkhand & Another ... ... Opp. Party
CORAM: HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
HON'BLE MR. JUSTICE PRASHANT KUMAR
For the Appellant : Mr. A.K. Kashyap, Advocate.
For the Opp. Party : APP
....
2/ 15.04.2009
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.
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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. 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.
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
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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. 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.
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
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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. 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. 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
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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. 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.
(Narendra Nath Tiwari, J)
(Prashant Kumar, J.)
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