{"id":24629,"date":"2009-04-15T00:00:00","date_gmt":"2009-04-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/satish-chandra-barnwal-vs-state-of-jharkhand-anr-on-15-april-2009"},"modified":"2018-01-16T04:56:03","modified_gmt":"2018-01-15T23:26:03","slug":"satish-chandra-barnwal-vs-state-of-jharkhand-anr-on-15-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/satish-chandra-barnwal-vs-state-of-jharkhand-anr-on-15-april-2009","title":{"rendered":"Satish Chandra Barnwal vs State Of Jharkhand & Anr on 15 April, 2009"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Satish Chandra Barnwal vs State Of Jharkhand & Anr on 15 April, 2009<\/div>\n
                IN THE HIGH COURT OF JHARKHAND AT RANCHI\n                              Cr. Rev. (DB) No. 287 of 2009\n\n                Satish Chandra Barnwal                     ...     ...       Petitioner\n                                    Vs.\n                The State of Jharkhand & Another           ...     ...       Opp. Party\n\nCORAM:          HON'BLE MR. JUSTICE NARENDRA NATH TIWARI\n                HON'BLE MR. JUSTICE PRASHANT KUMAR\n\n                For the Appellant           : Mr. A.K. Kashyap, Advocate.\n                For the Opp. Party          : APP\n                                            ....\n\n2\/ 15.04.2009<\/pre>\n
           This revision application is against the judgment of acquittal
\n                dated 29.01.2009 passed by learned Additional Sessions Judge,
\n                F.T.C., Koderma in S.T. No. 121 of 2007.\n<\/p>\n
                2.      The revision of the judgment has been sought on the ground
\n                that the evidences of P.W.-3, P.W.-14, P.W.-15 and P.W.-18 have not
\n                been duly considered by the learned court below and the accused-
\n                opposite party no. 2 has been erroneously acquitted.\n<\/p>\n
                3.      Mr. Kashyap, learned Sr. Counsel appearing on behalf of the
\n                petitioner submitted that there is a failure on the part of the learned
\n                trial court as he has not considered the conduct of the accused and
\n                vital piece of evidence and has recorded his finding illegally. The
\n                impugned judgment is vitiated and fit to be set aside on account of
\n                non-consideration of material evidences. Learned counsel referred
\n                to and relied on the decision of the Supreme Court in Ram Briksh
\n                Singh and others Vs. Ambika Yadav and another 2004 (7) SCC 665
\n                and submitted that the revisional court can set aside an order of
\n                acquittal and remit the case for retrial, where trial court,
\n                overlooking material evidence, has passed the order.\n<\/p>\n
                4.      Learned A.P.P. on the other hand submitted that from the
\n                impugned judgment, it is evident that learned court below has
\n                considered the evidences on record thoroughly. Learned Court on
\n                due appraisal of evidences and material on record found and held
\n                that there is no direct evidence in the case. It is a case of only last
\n                seen.    The prosecution failed to prove the charge even by
\n                circumstantial evidences. There is no proper link to complete the
\n                chain of the circumstances to hold that the accused and nobody else
\n                was the author of the said crime. Learned court below did not get
\n                sufficient evidence and thus, rightly acquitted the accused in
\n                absence of any cogent, reliable and credible evidence.\n<\/p>\n
                                -2-<\/span><\/p>\n
5.        Having heard the learned counsel, we also closely examined
\nthe impugned judgment. Learned court below has discussed all the
\nevidences oral and documentary in detail. He has also discussed
\nthe evidences of all prosecution witnesses including the evidences
\nof P.W.-3, P.W.-14, P.W.-15 and P.W.-18 referred to by Mr.
\nKashyap. After thorough appraisal and discussion of the evidences
\non record, learned court below has come to the conclusion that the
\nevidences are not cogent and credible to hold the accused persons
\nguilty.\n<\/p>\n
6.        In Paragraphs 32 to 39, he has given the reasons in detail as
\nto why, he has not found the evidences of the prosecution reliable
\nand credible and concluded that the prosecution failed to prove the
\ncharge against the accused person beyond the shadow of all
\nreasonable doubt.            The     aforesaid    paragraphs are       quoted
\nhereinbelow:\n<\/p>\n
                  ” 32. From perusal of the evidence of P.W.-6 it appears to
\n          me that he is the first I.O. of the case. During the course of his
\n          investigation, he had tried to receive the print out of mobile relates
\n          with deceased Pinku and after receiving that print out this I.O.
\n          had come to know that Pinku had talked on mobile no. 9334433905
\n          and that mobile number was of Rakesh Sen Gupta and that talk
\n          was done on the date of alleged occurrence and in this way Rakesh
\n          Sen Gupta had been made accused of this case. But with regard to
\n          the above print out of concerned mobile only the oral evidence of
\n          P.W.-6 is available on record. No any chit of paper to prove the
\n          above investigating act of the I.O. is on record. With this regard
\n          the learned A.P.P. has tried his best to produce the same with the
\n          help of the court, but inspite of helping hands of the court the
\n          prosecution has failed to produce the relevant and alleged print out
\n          of mobile. From perusal of the evidence of P.W.-6 it also appears to
\n          me that no any mobile was recovered and received by this witness.
\n          On this point all the material witnesses have supported the fact
\n          that no any mobile was found, recovered and seized by the police
\n          from the place of occurrence. In such circumstances, the story
\n          regarding the print out of mobile could not be proved with the
\n          cogent, reasonable, credible and believable piece of evidence. P.W.-
\n          16 the second I.O. of this case has also supported the above facts
\n          that Ex. I.O. had got success to receive the print out of the mobile.<\/p><\/blockquote>\n
          This witness did not investigate about the story of mobile print
\n          out. So from the evidence of the above I.Os. it is very clear to me
\n          that first I.O. of this case has implicated this accused in this case
\n          on the basis of mobile out print, but the prosecution could not get
\n          success to prove the mobiles of the deceased as well as to prove the
\n          mobile of the accused. From the evidence of P.W.-16 it also
\n          appears that after one month of arrest of accused his confessional
\n          statement was recorded and the accused had confessed about his
\n          guilt. With this regard it is settled principle of law that
\n          confessional statement before the police is not admissible in the eye
\n          of law. In the above settled principle of law I find that in the
\n          present case the second I.O. of this case has admitted this fact that
\n          after one month of arrest of the accused his confessional statement
\n          was recorded by this witness. Therefore, I come to the conclusion
\n                      -3-<\/span>
\nthat the confessional statement of accused, recorded by the police
\nafter one month of arrest is not admissible in the eye of law. So far
\nthe out print of mobile is concerned, on this point only the oral
\nevidence of P.W.-6 is available, in support of which no any
\ndocumentary piece of evidence could be brought on record to prove
\nthe above statement of the I.O. (P.W.-6).\n<\/p>\n
         33.     The above mentioned facts support that the accused
\nhas been made accused in this case on the basis of out print of
\nmobile and not on the basis of evidence of P.W.-1, 3 and 18. The
\nevidence of P.W.-1, 3 and 18 are brought in the case diary after the
\nout print of mobile as well as after his arresting but no any chit of
\npaper regarding out print of mobile or mobile of accused or
\ndeceased could be produced before the court. In such
\ncircumstances, I am of the view that there is no any cogent,
\nreliable, reasonable and believable evidence on record to make the
\nchain of circumstances in proving the probabilities of the criminal
\nact of the accused for causing the death of the deceased.\n<\/p>\n
         34.     From perusal of the evidence of remaining material
\nwitnesses, I find that none of the remaining witnesses are reliable
\nas all these witnesses happens to be the hearsay witnesses and the
\nrelatives of the deceased. With this regard I find that P.W.-3, 7, 11,
\n17 and 18 along with the informant P.W.-15 have admitted the
\nfact that they are relatives of the deceased, who came to know about
\ngoing to Ranchi of Pinku with Rakesh Sen Gupta, but none of
\nthem has disclosed this fact before the police, while all these persons
\nwere present at the place of occurrence. From perusal of their
\nevidence it also appears to me that the statement of the relevant
\nwitnesses are recorded by the police after long gap of lodging the
\ncase. That delay examination of material witnesses could not be
\nexplained by any of the I.O. or by prosecution or by the concerned
\nP.Ws. while they are residing in their respective home. Hence in
\nmy opinion delay examination of material witnesses is fatal to the
\nprosecution case.\n<\/p>\n
         35.     From the above piece of evidence, I find that only
\nthe circumstance of last seen has been brought by the prosecution.
\nBesides the fact the out print of mobile could be brought only by
\nthe evidence of P.W.6. In support of that piece of oral evidence no
\nany chit of paper could be produced. So the oral evidence
\nregarding out print of mobile is a weak piece of evidence which
\ncould not be made reliable, cogent and credible, but from the
\nevidence of P.W.3 and 18 it is very clear to me that both of them
\nhave stated about the last seen of the accused with the deceased.
\nWith regard to circumstantial evidence of last seen it is well settled
\nprinciple of law that only circumstance of last seen will not
\ncomplete the chain of circumstances to record the finding that it is
\nconsistent only with the hypothesis of the guilt of the accused. In
\nthe present case there is piece of evidence that the deceased was the
\nbest friend of the accused. In such circumstances, the motive of the
\naccused to cause the death of the deceased should be brought on
\nrecord, but with this regard no any motive or intention
\npreparation could be brought on record. Therefore only the last
\nseen is not sufficient to hold the guilty of the accused. The
\ncircumstance of last seen needs to be corroborated from the reliable
\nand cogent evidence. But in the present case no any reliable and
\ncorroborative piece of evidence to support the intention or motive
\nof the accused to kill the deceased could be brought on record.\n<\/p>\n
         36. So far the evidence of P.W.2 (father of the deceased)
\nand P.W.14 (Mother of the deceased) is concerned, P.W.2 is also
\nthe hearsay witness, who came to know about the relevant facts
\nfrom his wife, while P.W.14 had not seen the accused with the
\n                     -4-<\/span>
\ndeceased. In such circumstances, their evidence on the point of
\ncircumstance of last seen is not believable and appears to be the
\nhearsay evidence.\n<\/p>\n
         37. Besides the above facts, from the evidence of P.W.2, 3,
\n6 and 14 it appears to me that on 26.08.06 father of the deceased
\nhas lodged a sanha for missing his son in Telaiya P.S., but thqt
\nsanha could not be brought on record. No any explanation
\nregarding non-production of that sanha is on record. With regard
\nto sanha, it is well settled principle of law that the suppression of
\nsanha by the prosecution leads to an adverse inference against the
\nprosecution case. In the present case, it is apparent that prior to
\ngive the fard beyan (Ext.1) on 27.08.06, the father of the deceased
\nhas lodged a sanha on 26.08.06 in Telaiya P.S., but that Sanha
\ncould not be made available by the prosecution. With this regard
\nno any explanation could be given on behalf of the prosecution. In
\nthe murder case the Sanha, which was lodged prior to give the fard
\nbeyan is fatal to the prosecution. Therefore, adverse inference goes
\nagainst the prosecution case.\n<\/p>\n
         38.    I want to discuss the date of occurrence with the
\ndate of post mortem examination. According to the fard beyan as
\nwell as the evidence of P.W.-1 it appears to me that in the evening
\nof 25.08.06 the cause of death of deceased was done. From perusal
\nof Ext.4 (post mortem report) it appears to me that the post
\nmortem examination on a dead body of Ashish @ Pinku Modi was
\nconducted by Dr. Sharad Kumar Joshi, Medical Officer of sadar
\nhospital, Koderma that post mortem examination was done on
\n27.08.06 at 4 P.M. According to his opinion the time elapsed since
\ndeath is about 38 hours. According to his opinion, the death of the
\ndeceased was caused after the mid-night on 26.08.06. With regard
\nto this time, now I again perused the evidence of P.W.-1 and found
\nthat in the evening of 25.08.06 he had seen the accused with Jatin
\nJethua on a motorcycle coming out from inside the forest. It means
\neither the evidence of P.W.-1 is doubtful about the appearance of
\nthe accused in the evening on 25.08.06 at Jawahar ghati or the
\nopinion of doctor as available in Ext.4 is doubtful. All these
\nsituations naturally go to show how that the prosecution has no
\nclean hands to prove the complicity of the accused in committing
\nthe murder of deceased. With regard to the above facts, I find that
\nincomplete chain of circumstances are tried to be proved, but no
\nany back ground or facts could be brought on record to link the
\nchain of circumstances as well as to prove within all human
\nprobabilities that there are cogent and credible evidence on record
\nto prove that the accused was only or one of the person to commit
\nmurder of the deceased.\n<\/p>\n
         39.    From the above discussed facts and circumstances of
\nthis case as well as the prosecution evidences, I find that in the
\npresent case the quantity of P.Ws. is available, but the quality of
\ntheir evidence to prove the link and chain of circumstances is
\nmissing. Having regard to the above my own discussed opinion,
\nnow I come to the conclusion that the I.O. has ignored the facts
\nand circumstances of the fard beyan and brought a new case with
\nthe help of non-produced out print of mobile, which could not be
\nproved by cogent, believable and reliable evidences. Similarly, the
\nprosecution has not proved the last seen of the accused with the
\ndeceased from the cogent, credible and probable evidence.
\nTherefore, I am of the view that in the present case not even a
\ncircumstantial chain could be proved beyond the shadow of all
\nreasonable doubt. Keeping in view of the above discussed my own
\nopinion, I am again of the view that no any link in the chain of
\ncircumstances could be proved without any shadow of reasonable
\n                                      -5-<\/span>
\n                 doubt. Therefore, in my opinion, the prosecution has miserably
\n                 failed to prove the complicity of the accused in causing the death of
\n                 the deceased at Jawahar ghati beyond the shadow of all reasonable
\n                 doubt in the manner as alleged.”\n<\/p>\n
          7.     Considering the elaborate discussion and consideration of
\n          the facts, evidences and material on record had by learned trial
\n          court before arriving at the conclusion, we find no illegality,
\n          impropriety or incorrectness in the impugned judgment.\n<\/p>\n
          8.     The petitioner has not made out any ground that any error
\n          of record has been committed by learned court below or any piece
\n          of material evidence on record has not been considered.                The
\n          petitioner has also not specifically pointed out that any evidence of
\n          the prosecution oral or documentary has been overlooked by
\n          learned trial court. In that view, the decision in Ram Briksh Singh
\n          & others (supra) has no application to the facts of the instant case
\n          and is of no help to the petitioner.\n<\/p>\n
          9.     We, therefore, find no ground made out to entertain this
\n          revision and the same is accordingly dismissed.\n<\/p>\n
                                                       (Narendra Nath Tiwari, J)<\/p>\n
                                                             (Prashant Kumar, J.)<\/p>\n
Sunil\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Satish Chandra Barnwal vs State Of Jharkhand & Anr on 15 April, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-24629","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nSatish Chandra Barnwal vs State Of Jharkhand & Anr on 15 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/satish-chandra-barnwal-vs-state-of-jharkhand-anr-on-15-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Satish Chandra Barnwal vs State Of Jharkhand & Anr on 15 April, 2009 - 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