Anil Nayak vs The State Of Jharkhand
2021 Latest Caselaw 515 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    (Criminal Appellate Jurisdiction)

                 Criminal Appeal (DB) No.919 of 2010

(Against the judgment of conviction dated 12.08.2010 and the order of
sentence dated 18.08.2010 passed by the learned Additional Sessions
Judge, Fast Track Court-2nd at Seraikella in Sessions Trial No.129 of 2006)


Anil Nayak, s/o Late Dakua Nayak, r/o village-Nuagaon, P.O &
P.S-Saraikella, District-Saraikella-Kharsawan  ... Appellant

                                  Versus
The State of Jharkhand                                  ... Respondent

                 (Heard through V.C on 3rd & 4th February, 2021)
                                -------
                        PRESENT
       HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant       : Mr. Mahesh Kumar Sinha, Advocate
For the State           : Mr. Shekhar Sinha, PP
                                  -------
                               Oral Judgment
                              4th February, 2021

Per, Shree Chandrashekhar, J.

In Sessions Trial No. 129 of 2006, the sole appellant was convicted and sentenced to RI for life and a fine of Rs.4,500/- under section 302 of the Indian Penal Code with a default stipulation to serve SI for 5 months. The appellant was further convicted and sentenced to RI for 5 years under section 201 of the Indian Penal Code for causing disappearance of the dead body of Bibhishan Barik.

2. Seraikella P.S. Case No. 51 of 2006 was registered on 28.06.2006 against Anil Nayak, Birbal Nayak and Mogla Pramanik under sections 302/201/34 of the Indian Penal Code. In his fardbeyan which was recorded on 28.06.2006 at 10:00 AM at the place where dead body of Bibhishan Barik was recovered, Yudhishthir Barik who is the full brother of Bibhishan Barik has 2 Cr. Appeal (DB) No. 919 of 2010

stated that on 26.06.2006 he found his brother in the company of Anil Nayak, Birbal Nayak and Mogla Pramanik enjoying drinks (Haria) in the market. He asked his brother to go back home however he declined and did not leave the market. When his brother did not come back home, next day he started search for his brother and on 28.06.2006 he received information that a dead body has been found near a canal about one kilometer away from village Bhadrudih. Then he along with his family went there and identified the body of his brother. An information was sent to the police and his statement was recorded on the spot. He expressed his doubt that Anil Nayak, Birbal Nayak and Mogla Pramanik in course of a quarrel had killed his brother. The witnesses stated before the police that Bibhishan Barik was seen in the company of the appellant and there was a quarrel between them regarding goat head. The statement of Birbal Nayak was recorded under section 164 Cr.P.C. The investigating officer recorded confessional statement of the appellant and arrested the appellant on 02.07.2006 who suffered a disclosure statement before him. He prepared the inquest report and sent the dead body for postmortem examination. The Medical Board which conducted postmortem examination found swelling on the whole body, tongue out of oral cavity, bleeding from the right ear and multiple tiny marks of injuries over the face. The trachea and hyoid bone of Bibhishan Barik were found broken and diopharm of right ear was ruptured. The injuries were found antemortem in nature and in the opinion of the Medical Board cause of death was asphyxia, caused due to broken trachea and hyoid bone. In the cross-examination, Dr. Vinay Siddhesh who was one of the members of Medical Board has denied the suggestion that Bibhishan Barik died due to consuming alcohol. After the investigation a chargesheet was submitted and as noticed above the appellant has faced the trial on the charge under sections 302 and 201 of the Indian Penal Code. The learned trial Judge has observed that PW-1 is a reliable witness;

3 Cr. Appeal (DB) No. 919 of 2010

the other prosecution witnesses were not confronted with their previous statements, and; the prosecution has proved charges against the appellant.

3. In paragraph no. 36 of the judgment under challenge, the learned trial Judge has observed as under:

"36. From careful scrutiny of the evidence available on record, it is apparent that there is direct evidence against the accused and that evidence is evidence of PW-1 who has well established the fact that by causing injuries on the deceased, accused of this case has knowingly and intentionally caused death of the deceased and he has disappeared the evidence of murder with intention to screen himself from the charge of murder. The evidence of PW-1 finds corroboration from the evidence of PW-7,8 as well as Ext. 2. The statement u/s 164 Cr.PC of this witness has been marked as Ext. 5 on admission of the accused. Hence, this Ext.5 is also corroborative and supportive to the evidence of PW-1. There is evidence of PW-5 & 6 who have clearly established the fact related to extra-judicial confession made by the accused before them in respect to commission of offence of this case. The evidence of PW-2, 3 & 9 is establishing the circumstance that just prior to the commission of occurrence of this case, deceased was last seen with the accused. Another circumstance has also been proved by the witnesses that while in the market deceased was demanding head of the goat from the accused. Then it was refused by the accused which caused annoyance between accused and deceased. Another circumstance has also been established by the evidence that PW-1, accused and deceased consumed country-made wine in that very market and this fact is also being corroborated with the evidence of PW-7 and Ext.2. Another circumstance has also been well established by the prosecution against the accused that, after making extra-judicial confession accused disappeared from his house who was absconding till 02.07.06. The evidence brought by the prosecution during trial has been explained to the accused during statement u/s 313 Cr.PC to which he has replied generally saying that "He does not know about it or it is not the fact". Nothing has been brought into evidence of the witness that informant or witnesses are having enmity with the accused. In this way, there is no any chance of false implication of the accused in commission of occurrence of this case."

4. Mr. Mahesh Kumar Sinha, the learned counsel for the appellant submits that PW-1 who was a suspect and whose conduct was highly suspicious has come to the Court to falsely implicate the appellant in the case. The so-called extra judicial confession of the appellant is not trustworthy and in absence of 4 Cr. Appeal (DB) No. 919 of 2010

other corroborative evidence it cannot form basis for conviction of the appellant for murder. The learned counsel has referred to the judgment in "Shailendra Rajdev Pasvan and Others v. State of Gujarat etc." 2019 SCC OnLine SC 1616, to fortify his contention. On the other hand the learned Public Prosecutor has submitted that there is no plausible reason for falsely implicating the appellant who was a resident of another village and, moreover, the evidence of the prosecution witnesses on last seen together has remained intact and is sufficient to record conviction of the appellant.

5. PW-5 and PW-6 were projected by the prosecution as the persons before whom the appellant has confessed his guilt. PW-5 has deposed in the Court that the appellant told him that he has killed one person and if he speaks about the incident or tenders evidence he would kill him also. PW-6 has stated that Bibhishan Barik who was asking for goat head started abusing him whereupon he became angry and killed him. Mr. Mahesh Kumar Sinha, the learned counsel for the appellant has relied on a decision in "State of Punjab v. Bhajan Singh and Others" AIR 1975 SC 258 to submit that extra judicial confession is a weak piece of evidence and it cannot form the basis for conviction. There is no impediment in law to convict a person on the basis of his confession and extra judicial confession of a person though considered a weak piece of evidence nonetheless is an important piece of evidence which can be used to corroborate other evidence tendered during the trial. If the extra judicial confession is surrounded by suspicious circumstances its credibility is substantially eroded and consequently it loses it importance. In "Maghar Singh v. State of Punjab" (1975) 4 SCC 234 the Hon'ble Supreme Court has observed that if the court believes the witnesses before whom the confession is made and it is satisfied that the confession was voluntary, then in such a case conviction can be based on such evidence alone. But before an extra judicial confession can be relied by the prosecution its 5 Cr. Appeal (DB) No. 919 of 2010

truthfulness and voluntariness must be established.

6. In "Sahadevan v. State of T.N." (2012) 6 SCC 403, the Hon'ble Supreme Court has observed as under:

"16. ...(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law."

7. PW-5 has not stated in his examination that the appellant told him name of the person he had killed. He has stated in the Court that (vfuy cksyk Fkk fd ,d vkneh dks tku ls ekj fn, gaSA). He has further stated that he thinks and is confident that the appellant has killed Bibhishan Barik. Such a statement of PW-5 does not satisfy the requirement in law to rely upon the so-called extra judicial confession by the appellant. The evidence of PW-6 is also cryptic. The quality of the evidence tendered by PW-5 and PW-6 on the extra judicial confession is so poor to place reliance upon it.

8. Birbal Nayak is the only eyewitness in this case. In the First Information Report the informant has raised a suspicion against him of being involved in the murder of his brother. It appears that in course of the investigation no material on his complicity in the occurrence was found. On his claim that he was accompanying the appellant and the deceased on their return from the market, the prosecution has examined him as a witness and his evidence on this point has remained unchallenged - the cross-examination of Birbal Nayak is confined to just one question relating to recording of his statement under section 164 Cr.P.C. The evidence of a witness 6 Cr. Appeal (DB) No. 919 of 2010

which throws light about the occurrence or any other circumstance relating to the occurrence, but remains unchallenged, must be accepted by the Court. In his examination-in-chief, Birbal Nayak has stated that in the afternoon of the occurrence he was asked by the appellant to come to Sidadih market. He knows the informant and his brother and claims that the appellant who is a resident of his village was known to him. He was a witness to a quarrel between the appellant and the deceased while they were enjoying drinks. He has stated that the appellant did not offer the goat head to Bibhishan Barik and that was the reason for the quarrel. He has further deposed that in the market the informant asked Bibhishan Barik to go back home but he declined and said that he would follow later. At about 04:00-05:00 PM Birbal Nayak was returning home and at that time Anil Nayak was with him and Bibhishan Barik was also following them. When they came near village Bhadrudih the appellant suddenly thrashed Bibhishan Barik on the ground and tried to strangulate him. Birbal Nayak has further stated that when he tried to intervene he was threatened by the appellant with dire consequences if he speaks about the incident to the police or anyone in the family. The appellant dragged Bibhishan Barik towards the ditch (Nalla) and smashed his head with stone due to which he died. He has affirmed in the Court that his statement was recorded by the police and also before the Magistrate at Seraikella.

9. As a general rule the Court may act upon the testimony of a single eyewitness and there is no legal impediment in convicting a person on the basis of sole testimony of an eyewitness. Section 134 of the Indian Evidence Act which provides that no particular number of witnesses is required in a case for proof of a fact does not envisage multiple eyewitnesses for proving a charge. In "Kartik Malhar v. State of Bihar" (1996) 1 SCC 614 the Hon'ble Supreme Court has observed that the evidence of a solitary eyewitness can be the basis for conviction 7 Cr. Appeal (DB) No. 919 of 2010

provided his credibility is not shaken by any adverse circumstance and at the same time the Court is convinced that he is a truthful witness. Birbal Nayak who has claimed that he has seen the appellant assaulting Bibhishan Barik was not cross-examined by the defence on the crucial point and his presence with the appellant and the deceased at time of occurrence was not questioned in his cross-examination. His evidence that the appellant and the deceased both were coming together and near village Bhadrudih the appellant started strangulating Bibhishan Barik is sufficient to hold him guilty for death of Bibhishan Barik. The conduct of Birbal Nayak in not informing the police or the family members of Bibhishan Barik was criticized by Mr. Mahesh Kumar Sinha, the learned counsel for the appellant to submit that he is not a reliable and truthful witness. In the first place conduct of a witness per se is not a ground to disbelieve his testimony and secondly Birbal Nayak was not cross-examined by the defence. By saying that the appellant threatened him with dire consequences, in our opinion, he seems to suggest why he did not inform any one about the occurrence for the next two days. The conduct of a witness is examined in the context of the facts and circumstances of the case because it is almost impossible to predict reaction of every individual in a similar situation - different person may react differently. In "Rana Partap v. State of Haryana" (1983) 3 SCC 327 the Hon'ble Supreme Court has observed that there is no set rule of natural reaction so as to discard the evidence of a witness on the ground that he did not react in any particular manner. In our opinion, from the materials on record it does not even appear that the accused set up a defence that it was Birbal Nayak who has committed murder of Bibhishan Barik and to us it seems that the defence has accepted the position that he was an eyewitness to the occurrence.

10. The other prosecution witnesses have supported the 8 Cr. Appeal (DB) No. 919 of 2010

prosecution on all material aspects of the case and there are other corroborative materials which also indicate complicity of the appellant in the crime. PW-3 and PW-9 have seen the appellant in company of Bibhishan Barik in Sidadih market drinking (Haria) together and thereafter Bibhishan Barik was not seen alive by his family members. Dr. Vinay Siddhesh and Dr. Arvind Kumar who were members of the Medical Board which conducted the postmortem examination were examined during the trial. PW-7, Dr. Vinay Siddhesh has deposed in the Court that in the opinion of the Medical Board the time elapsed since death was 36 to 48 hrs. According to Birbal Nayak, the appellant strangulated Bibhishan Barik to death at about 05:00 PM and the postmortem examination was conducted at 01:30 PM on 28.06.2006. Excluding the evidence of Birbal Nayak for a moment, though the time gap between disappearance of Bibhishan Barik and recovery of his dead body is more than one day the postmortem examination report coupled with the evidence of last seen together satisfy the proximity test. In his examination under section 313 of the Code of Criminal Procedure the appellant was put the circumstance of his found in the company of Bibhishan Barik in Sidadih market but he has chosen to remain silent. The failure of the appellant to explain this circumstance is a highly incriminating material that Bibhishan Barik was not seen alive by his family members after he was seen by the prosecution witnesses in Sidadih market in his company on 26.06.2006.

11. In "Phula Singh v. State of HP" (2014) 4 SCC 9 the Hon'ble Supreme Court has observed thus:

"11. The accused has a duty to furnish an explanation in his statement under Section 313 CrPC regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 CrPC is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference 9 Cr. Appeal (DB) No. 919 of 2010

against the accused as may be permissible in accordance with law. (Vide Ramnaresh v. State of Chhattisgarh, MunishMubar v. State of Haryana and Raj Kumar Singh v. State of Rajasthan."

12. The prosecution evidence is sufficient to hold that the appellant has assaulted and strangulated Bibhishan Barik. The question to be decided by us is whether the appellant can be convicted under section 302 of the Indian Penal Code. Our firm view is that he cannot be, the reasons for which we will delineate now.

13. The medical evidence does not conclusively establish that the appellant had requisite intention or knowledge as envisaged under section 300 of the Indian Penal Code to hold him liable under section 302 of the Indian Penal Code. There was a quarrel on a trivial issue. The prosecution evidence is that Bibhishan Barik was asking goat head which the appellant refused to give him and that was the reason for quarrel between them. They were found enjoying drinks in the market and at that time also a quarrel had started between them. Both were drunk and returning home together. It is the evidence of Birbal Nayak that the appellant suddenly pounced upon Bibhishan Barik and thrashed him on the ground and started pressing his neck. In an inebriated condition the appellant would not have been in his complete senses as to strangulate Bibhishan Barik till he died. The tiny injuries on face of Bibhishan Barik which according to Birbal Nayak were caused by a stone sufficiently indicate that the appellant did not possess requisite intention or knowledge and he cannot be convicted for committing culpable homicide amounting to murder. Had he intended to cause death and disappearance of any evidence on identification of Bibhishan Barik which according to the prosecution was the reason for smashing his head with stone, he would have done so and the face of Bibhishan Barik would have been found completely smashed, and not with tiny injuries.

14. In the above circumstances, we hold that the 10 Cr. Appeal (DB) No. 919 of 2010

prosecution has failed to prove the charge under section 302 of the Indian Penal Code and, accordingly, the judgment of conviction of the appellant, namely, Anil Nayak dated 12.08.2010 under sections 302 and 201 of the Indian Penal Code passed by the learned Additional Sessions Judge, Fast Track Court-2nd at Seraikella in Sessions Trial No. 129 of 2006 is set-aside.

15. The appellant, namely, Anil Nayak is convicted and sentenced to R.I for 7 years under section 304 Part II of the Indian Penal Code. His conviction under section 201 of the Indian Penal Code is set-aside primarily for the reason that the dead body was recovered from an open space, after two days of the occurrence and not at the instance of the appellant.

16. Mr. Shekhar Sinha, the learned Public Prosecutor states that the appellant, namely, Anil Nayak who has served the sentence for more than 16 years and 11 months, with remission, is in custody.

17. Accordingly, the appellant, namely, Anil Nayak who is in custody shall be released forthwith, if not wanted in connection to any other criminal case.

18. In the result, Criminal Appeal (DB) No. 919 of 2010 is partly allowed, in the aforesaid terms.

19. Let the lower Court records be sent to the Court concerned forthwith.

20. Let a copy of the judgment be transmitted to the Court concerned and the concerned Jail Superintendent through 'Fax'.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated : 04.02.2021 Tanuj A.F.R