Vishwanath Prasad Yadav vs The State Of Jharkhand
2023 Latest Caselaw 1509 Jhar

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

                     Acquittal Appeal (D.B) No.101 of 2018
Vishwanath Prasad Yadav, s/o Jairam Prasad Yadav, r/o Rowtara Chowk, PO
& PS-Godda, District-Godda                               ...... Appellant
                                  Versus
1. The State of Jharkhand
2. Rahul Mishra, s/o Prakash Mishra
3. Sachindra Nath Thakur, s/o Kalanand Thakur,
Both r/o village & PO-Lukluki, PS-Godda(M), District-Godda
                                                      ...... Respondents
                               with
                    Acquittal Appeal No.28 of 2019
The State of Jharkhand through D.C. Godda, PO & PS-Godda, District-
Godda                                              ...... Appellant
                                  Versus
1. Rahul Mishra, s/o Prakash Mishra
2. Sachindra Nath Thakur, s/o Kalanand Thakur
Both r/o village & PO & PS-Godda(M), District-Godda
                                                                    ...... Respondents


CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant          :      Mr. Pankaj Kumar Choudhary, Advocate
                                  (in Acq. Appeal No.101 of 2018)
For the Respondent No.1    :     Mr. A.K. Kashyap, Sr. Advocate
                                  (in both the cases)
For the Respondent No.2    :     Mr. Purnendu Sharan, Advocate
                                  (in both the cases)
For the State of Jharkhand :     Mr. Saket Kumar, APP
                                  (in Acq. Appeal No.101 of 2018)
                                 Mr. Ravi Prakash, Spl.PP
                                  (in Acq. Appeal No.28 of 2019)
                               --------------
                                                               ORDER

6th April 2023 Per, Shree Chandrashekhar, J.

I.A. Nos.2356 of 2019 and 2357 of 2019 in Acquittal Appeal No.28 of 2019 I.A No.2356 of 2019 has been filed by the State of Jharkhand for grant of leave against the judgment of acquittal dated 30th August 2018 passed by the learned Addl. Sessions Judge-II, Godda in Sessions Trial No.292 of 2012.

In view of the amendment in section 372 of the Code of

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Criminal Procedure, I.A No.2356 of 2019 is allowed.

I.A No.2357 of 2019 has been filed by the State of Jharkhand for condonation of delay of 93 days in filing the Acquittal Appeal No.28 of 2019.

There is no opposition by the respondents to this application. In view of the averments made in the application, I.A No.2357 of 2019 is allowed.

Acquittal Appeal (D.B) No.101 of 2018 with Acquittal Appeal No.28 of 2019

Vishwanath Prasad Yadav, brother of Niranjan Yadav, is aggrieved of the judgment of acquittal dated 30th August 2018 passed in Sessions Trial No.292 of 2012.

2. The State of Jharkhand has also filed an appeal under section 378 of the Code of Criminal Procedure to challenge the aforesaid judgment in Sessions Trial No.292 of 2012.

3. Mr. Pankaj Kumar Choudhary, the learned counsel for Vishwanath Prasad Yadav and Mr. Ravi Prakash, the learned Spl.PP appearing for the State of Jharkhand have submitted that Niranjan Yadav was last-seen-alive in the company of Rahul Mishra on 9 th December 2011 and thereafter nothing has been heard about him and while so, an inference on culpability of Rahul Mishra shall be drawn in law.

4. The submission raised at the Bar is that the accused in whose company the victim was last-seen-alive must explain to the Court what happened after he was last-seen in the company of the victim and non- explanation of this incriminating circumstance is sufficient to raise an inference in law that the accused is the person who has committed murder of the victim.

5. No doubt the evidence on last-seen-together is sufficient to raise a strong suspicion against the accused. However, merely on the basis of last-seen-together evidence the accused cannot be convicted and, that too, for a serious offence of murder. It is well-remembered that suspicion howsoever strong shall not take the place of legal evidence.

6. In "Sharad Birdhichand Sarda v. State of Maharashtra" (1984) 4 SCC 116, the Hon'ble Supreme Court has held as under:

"179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be,

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cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law."

7. Godda (M) PS Case No.496 of 2011 was lodged on 10 th December 2011 on the basis of the fardbeyan of Rahul Mishra recorded on 10th December 2011. The story narrated by him was that on the fateful day he had visited Sachindra Nath Thakur at village Lukluki along with Niranjan Yadav with a request to him to withdraw the case. However, Shyam Sundar Mirdha and other accused persons attacked him while he was returning home with Nirajan Yadav. He has further stated that somehow he could escape and later on came to know that 30-35 villagers have assaulted Nirajnaj Yadav who finally succumbed to the injuries in the course of his treatment.

8. However, in course of the investigation it was found that Rahul Mishra and Sachindra Nath Thakur had planned murder of Niranjan Yadav and, accordingly, a charge-sheet was laid against them for committing the offence under sections 341, 323, 307 and 302 r/w section 34 of the Indian Penal Code.

9. During the trial, the prosecution has examined 10 witnesses out of whom PW6 Jairam Prasad Yadav is the father and PW7 Vishwanath Prasad Yadav is the brother of Niranjan Yadav. The prosecution has also laid in evidence some documents such as seizure-list, fardbeyan, inquest report, postmortem report etc.

10. In his defence, Sachindra Nath Thakur has examined Dr. Tara Shankar Jha as DW1 to set-up a plea of enmity with co-accused Rahul Mishra.

11. On appreciation of the evidence laid before him, the learned trial Judge has held as under:

"12. From perusal of oral and documentary evidences it is clear that the FIR recorded on the statement of informant Rahul Mishra, the name of accused also clear in the FIR and the accused Shayam Sundar Mirdha, Ashok Mirdha and Ramphal Mirdha remain in jail during investigation but charge sheet submitted against Rahul Mishra and Sachindra Nath Thakur. From perusal of records it is clear that PW 6 Jai Ram Prasad Yadav, PW 7 Vishwanath Prasad Yadav and PW 8 Praful Kumar Yadav are not the eye-witnesses of the case but they developed the story that injured Niranjan Prasad disclosed the name of Rahul and Sachindra in Godda Hospital and in the way to Bhaglapur to Patna. But PW 7 Vishwanath Pd. Yadav already accepted that he found Niranjan Prasad unconscious in Godda Hospital and doctor who were providing treatment to

with Acq. Appeal 28 of 2019

Nirajan also stated that the condition of patient is serious and directed to shift him Bhagalpur for better treatment. So, court found that injured Niranjan Yadav is unconscious and unable to tell the names of accused persons. The I.O. of this case has clearly disclosed that he brought the injured from village Lukluki to the Sadar Hospital, Godda but injured do not disclosed the name of accused persons. Court found that PW 6, PW 7 and PW 8 have totally deposed a concocted statement and falsely implicated the accused Rahul Mishra and Scahindra Nath Thakur in this case because if PW 7 Vishwanath Prasad Yadav learned the name of accused persons from Niranjan Yadav then surely he disclosed the name of Sachindra before the Patna Police.

After perusal of all oral and documentary evidences as on record court found that I.O. do not conduct the investigation in proper way and in the influence of Vishwanath Prasad Yadav and Jai Ram Prasad Yadav he has falsely implicated the accused Rahul Mishara and Sachindra Nath Thakur, whereas he has already accepted in his cross-examination that he admitted Rahul Mishra in Sadar Hospital for treatment after recording his statement about the occurrence. From perusal of oral and documentary evidences court conclusively find out that prosecution side badly failed to prove alleged charges against accused Rahul Mishra and Schindra Nath Thakur. In the light of above discussion the following order passed.

ORDER In S.T. No. 292/2012 charge u/ss 341/34, 302/34 & 307/34 of IPC are not proved beyond reasonable doubt on behalf of prosecution side and court found it is a case of no evidence against accused Rahul Mishra and Sachindra Nath Thakur who were facing the trial. Court found and held innocent and acquitted both above accused from above alleged charges in this case. Accused Sachindra Nath Thakur is on bail, so he and his bailors are discharged from the liabilities of bail bonds whereas accused Rahul Mishra is in judicial custody during trial. O.C. is directed to issue a, release order immediately in the favour of Rahul Mishra.

From perusal of records it transpires that I.O. of this case namely Vijay Shankar Upadhayay submitted chargesheet against Rahul Mishra and Sachindra Nath Thakur whereas he found Rahul Mishra in injured position and referred for treatment in Godda Hospital. I.O. himself reached at the place of occurrence and brought the injured Niranjan Prasad Yadav to Sadar Hospital, Godda for treatment and informed the parents of injured. Nobody disclose the name of Rahul Mishra and Sachindra Nath Thakur as accused in the occurrence but in connivance with Jai Ram Prasad Yadav and Vishwanath Prasad Yadav he falsely implicated Rahul Mishra and Sachindra Nath Thakur as accused. Court found that due to negligent and faulty investigation accused Rahul Mishra remain in Judicial custody since a long time and ruined his health in jail. So it is demand of justice to pay a compensation for his better rehabilitation. Hence, Chief Secretary, Govt. of Jharkhand is hereby, ordered to pay compensation of Rs. 1,00,000/- for each year in favour of Rahul Mishra who spent in jail within one month from receiving of this order and Chief Secretary, Govt. of Jharkhand is also entitled to recover such money from those persons who are liable to this negligent act. O.C. is directed to send a copy of judgment and order to Chief Secretary, Govt. of Jhakhand, D.G.P. Jharkhand and S.P. Godda for compliance and necessary action."

12. Admittedly, there is no eyewitness to the occurrence. The

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testimony of co-villagers who were examined as PW1, PW2, PW3, PW4 and PW5 did not support the prosecution case. These witnesses have turned hostile when they were produced in the Court to tender evidence on behalf of the prosecution. PW8 is a hearsay witness and PW9 is the Investigating Officer of the case. The case of the prosecution is based on the evidence of PW6 and PW7 who are the related witnesses. PW6 who is the father of Niranjan Yadav has stated in his cross-examination that his son was unconscious when he was taken to the hospital at Bhagalpur for better treatment. He has stated that few days after the occurrence on the way while his son was being taken to Heritage Hospital at Patna his son disclosed the name of the accused persons who had attacked him in the evening on 9th December 2011 at about 7:30 PM. However, he has admitted that his son was involved in criminal cases. He has further admitted in the Court that his son had gone to jail; Akhil Mandal and Gulshan Jha have lodged criminal cases against his son, and; Bipin Sonar has also lodged a case against his son. He has further admitted that Sachindra Nath Thakur had also lodged a case against his son under sections 307, 325 and 379 of the Indian Penal Code.

13. From the suggestions put to PW6, it appears that there were several other cases filed against Niranjan Yadav. The learned trial Judge has disbelieved the statement of PW6 that on 9th December 2011 and 16th December 2011 Niranjan Yadav informed about the persons who had assaulted him.

14. PW7 has stated that when he reached Sadar Hospital, Godda he found his brother unconscious. He has also stated that his brother had disclosed the name of Rahul Mishra and Sachindra Nath Thakur on way to Bhagalpur where he was being taken for better treatment. However, PW7 has admitted in the cross-examination that he reached the hospital around 12 O'clock in the midnight and the doctor informed him that his brother's condition was very serious. Presumably on a suggestion given by the defence, PW7 has stated in the Court that he has no information about the cases lodged against his brother.

15. In the aforesaid scenario, the case set-up by the defence that Niranjan Yadav was killed by his enemies with whom he was fighting legal battles in the Court cannot be overlooked rather seems to be a probable

with Acq. Appeal 28 of 2019

reason for the death of Niranjan Yadav. The prosecution story that Niranjan Yadav had informed his parents and the brother the name of the assailants is not free from doubts. Niranjan Yadav had suffered serious injuries and he was unconscious and therefore it is highly improbable that he was unconscious and in a condition to speak. From the evidence of PW6 and PW7, it is quite apparent that the prosecution has not been able to establish the charge under section 341/34, 302/34 and 307/34 of the Indian Penal Code framed against Sachindra Nath Thakur.

16. In "Jaswant Singh v. State of Haryana" (2000) 4 SCC 484 the Hon'ble Supreme Court has observed as under:

"21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable" it is a compelling reason for interference(see Shivaji Sahabrao Bobade v. State of Maharashtra). The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat : (SCC p. 229, para 7) "While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then -- and then only

-- reappraise the evidence to arrive at its own conclusions." (See also George v. State of Kerala)."

17. Having regard to the aforesaid principle laid down in "Jaswant Singh" and finding no infirmity in the judgment of acquittal passed in Sessions Trial No.292 of 2012, Acquittal Appeal No. 101 of 2018 is dismissed.

18. However, Acquittal Appeal No.28 of 2019 preferred by the State of Jharkhand is partly allowed to the extent the cost imposed upon the State of Jharkhand is found unnecessary and beyond the powers conferred upon the Sessions Judge.

19. Let a copy of the Judgment be transmitted to the Court concerned.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) High Court of Jharkhand, Ranchi Dated:6th April 2023 Sudhir/NAFR