Ram Parikchan Yadav @ Ram ... vs The State Of Jharkhand
2023 Latest Caselaw 2641 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    (Criminal Appellate Jurisdiction)
                  Acquittal Appeal No. 24 of 2012

Ram Parikchan Yadav @ Ram Parichhan Yadav, son of late Ram Baran
Yadav, resident of Section 9/B, Street 14, Quarter No.801, Bokaro Steel
City, Police Station-Harla, Post Office and District Bokaro ......Appellant
                                     Versus
1.The State of Jharkhand
2.Smt. Amita Srivastava, widow of late Sidheshwar Nath Srivastava
3.Abhinash Kumar Srivastava, son of late Sidheshwar Nath Srivastava
Respondent nos. 2 and 3 both residents of Quarter No. 929, Section 9/A,
Bokaro Steel City, Post Office-Sector 9, Police Station Harla, District
Bokaro                                                  ... Respondents
                             ---------------
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Appellant             : Mr. Yogesh Modi, Advocate
For the State                 : Mr. Ravi Prakash, Spl. PP
For the Respondent Nos.2&3 : Mr. Amit Kumar Das, Advocate
                                Mr. Arbind Kumar, Advocate
                                Mr. Sahay Gaurav Piyush, Advocate
                        ---------------
                                                          JUDGMENT

07th August 2023 Per, Shree Chandrashekhar, J.

Ram Parikchan Yadav @ Ram Parichhan Yadav who is the informant of Herla PS Case No. 51 of 2009 corresponding to GR Case No. 576 of 2009 is aggrieved of the judgment dated 20 th October 2012 passed in Sessions Trial Case No. 277 of 2009 by which Amita Shrivastava and her son Abhinash Kumar Srivastava have been acquitted of the charge under section 302/34 of the Indian Penal Code.

2. The informant of Herla PS Case No. 51 of 2009 is the father of the deceased Umesh Yadav who according to the prosecution was called by Amita Shrivastava to her house in the evening of 30 th April 2009. The informant has stated that about 9:15 PM Amita Shrivastava called his elder son Nirbhay and informed him that "Umesh Yadav has suffered some injuries and killed by some unknown person". Whereupon, the informant rushed to the house of the accused where the dead body of his son was lying in the pool of blood inside the campus of the house of the accused. Umesh Yadav was taken to Bokaro General Hospital but he could not survive and 2 Acquittal Appeal No. 24 of 2012

died on 30th April 2009. After the investigation the police submitted charge-sheet against Amita Shrivastava and Abhinash Kumar Srivastava under section 302/34 of the Indian Penal Code for causing death of Umesh Yadav.

3. Eighteen witnesses were produced by the prosecution to support the charge under section 302/34 of the Indian Penal Code framed against the accused. The Additional Sessions Judge-II at Bokaro however found that the prosecution has failed to establish the charge against the accused of committing murder of Umesh Yadav and, accordingly, they were acquitted of the charge under section 302/34 of the Indian Penal Code.

4. The Additional Sessions Judge-II at Bokaro has rendered the following findings for acquitting the accused in Sessions Trial Case No. 277 of 2009 :

"35. It is apparent from the fard beyan of the informant and his evidence as P.W. 11 that, after the first call made by the accused, Amita Srivastava to Khusboo at 8 PM. Umesh did not came to his house. But P.W. 13, Khusboo Devi had stated in her examination-in-chief that Umesh had come after 10 minutes of the telephone call (1 st) of the accused, Amita Srivastava, to his house and then Khusboo had told him about the telephone call, whereupon he went away. She has also stated upon her cross examination that she has given the information regarding Umesh visiting his house after 10 minutes of the 1st telephone call to the police. Between the 1st and the 2nd call of accused Amita Srivastava, the informant, P.W.11 was very much present in the house along with P.W. 13, Khusboo and this is a contradiction which has gone unexplained by the prosecution.

36. The 2nd telephone call made by the accused Amita Srivastava has been adequately explained by the defence. From the evidence of the family members of the deceased, including the informant, who was the father of the deceased, it is apparent that both the families had very cordial relationship for the last 15 years and as such the conduct of the accused, Amita Srivastava informing the brother of the deceased, P.W. 1, Nirbhaya Kumar, was very natural.

37. P.W. 9, Narendra (though declared hostile) and PW. 16. Bhupesh Kumar Giri have categorically stated that they saw some persons with iron rods, chasing and assaulting, Umesh Yadav, from the side of Basanti More, near Bihari Hotel, who took shelter in the house of accused persons herein. They are the only eye witnesses in the instant case. Their evidence gives a serious blow to the prosecution case.

38.The evidence of PW 8, Ramjee Giri that, a worried Abhisekh, came to his house to take his car on the date of occurrence and requested this witness to bring out the car as he has to take injured Umesh to Hospital, is a very natural conduct.

39. The I.O. has seized certain articles from the place of occurrence. He has been examined as PW.18 in the instant case. Upon his cross examination he has admitted that he has not taken the finger prints of the articles seized by him at the place of occurrence. He has also admitted not having sealed the articles seized from the place of occurrence. Nor he has sought information regarding the blood group of the deceased. This 3 Acquittal Appeal No. 24 of 2012

all indicates towards fatal loop holes in the prosecution case.

40. The confessional statement of the accused Avinash proved by the I.O. as Exhibit -8(with objection) has got no evidentiary value, as any part of it does not lead to recovery.

41. From the above discussion I conclude that circumstances from which an inference of guilt is sought to be drawn are not cogently and firmly established. The said circumstances are not of a definite tendency, unerringly pointing towards the guilt of the accused. The chain is not complete. It is settled law that the circumstantial evidence in order to sustain conviction must be complete and incapable of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In the instant case the evidence on record do not fulfill these criterion.

42. It is settled proposition of law that there is indeed a long distance between "accused may have committed the offence" and "the accused must have committed the offence", which must be traversed by the prosecution by adducing reliable evidence. In the instant case the prosecution has failed to do so.

43. It is settled principle of law that when two views are possible, the view favouring the accused should be adopted.

44.Upon the basis of the above discussions, I find and hold that prosecution has not been able to prove its case u/s 302/34 of the I.P.C., beyond the shadows of all reasonable doubts against the accused persons herein and as such the two accused persons herein namely, Amita Srivastava and Avinash are not found guilt for offence punishable u/s 302/34 of the IPC and as such they are acquitted of the said charge. Accused no. 1 Amita Srivastava is on bail and as such in view of her acquittal, she and her sureties are discharged from the liabilities of the bail bond. Accused No.2 Avinash Srivastava is in custody. In view of his acquittal in the instant case, he is directed to be released in connection with this case."

5. Mr. Yogesh Modi, the learned counsel for the appellant would submit that in a case based on circumstantial evidence the Court is required to examine whether the cumulative effect of all the circumstances taken together is that the accused is liable to be convicted. According to the learned counsel for the appellant, the trial Judge has however overlooked the basic principles for scrutinizing the circumstantial evidence and ignored that (i) dead body of Umesh Yadav was lying within the campus of the accused, (ii) crime weapon was recovered from the place of occurrence and

(iii) it was on the phone call of Amita Shrivastava that Umesh Yadav had gone to her house.

6. No doubt in a case based on circumstantial evidence prosecution is required to lead incriminating circumstances which should be definite in character and all circumstances taken together must form a complete chain of circumstances so as to establish that the accused is the person who has committed the crime. However, the circumstances which 4 Acquittal Appeal No. 24 of 2012

have been shown by the prosecution against the accused appear to be based on suspicion only and even the chain of circumstances is not complete. Out of 18 witnesses, PW8, PW9 and PW16 are said to be the eye-witnesses who however did not support the prosecution and none of them has identified the accused as the persons who were assaulting Umesh Yadav in the evening of 30th April 2009 inside their house.

7. The trial Judge has referred to the following circumstances which the prosecution has endeavored to prove during the trial:

"33. Examining the instant case on the well settled law of circumstantial evidence I find that the circumstances are as follows:

(i) The 1st telephone call made by the accused, Amita Srivastava to P.W. 13, Khusboo, daughter-in-law of the informant, P.W. 11.

(ii) The 2nd telephone call made by the accused, Amita Srivastava to P.W. 1, Nirbhay, the elder son of the informant, P.W. 11.

(iii) The 3rd telephone call made by the accused Amita Srivastava to PW 7, Santosh.

(iv) The chasing and assaulting of Umesh Yadav by some persons with rods in their hands.

(v) The injured, Umesh Yadav, lying in a pool of blood at the place of occurrence,

(vi) The taking of Maruti 800 car by Abhishek from the house of Ram Jee Giri, PW 8.

(vii) The taking of injured Umesh to Bokaro General Hospital, where he was declared to be dead.

(viii) The seizure of articles at the place of occurrence.

(ix) Confession of the accused, Avinash."

8. This is fundamental in law that identity of the accused must be established by producing sufficient, cogent and convincing evidence and any doubt thereon must lean towards the accused. It is well remembered that suspicion howsoever strong can not take the place of legal evidence and that too in a case of murder to convict the accused.

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

10. PW9 seems to be an acquaintance of Umesh Yadav as he has addressed him as "Umesh Bhaiya" in his examination-in-chief. He has stated in the Court that he heard noises coming from Basanti More and 5 Acquittal Appeal No. 24 of 2012

found that few persons were chasing one boy. At that time, he was taking tea at Bihari hotel and according to him the accused and Umesh Yadav crossed him in front of Bihari hotel. This witness has further stated that the unknown persons chased Umesh Yadav till the house of Abhinash Kumar Srivastava and assaulted him with hammer. PW16 has deposed in the Court that he had seen few persons assaulting Umesh Yadav on 30th April 2009 and he found him lying near the gate of Abhinash Kumar Srivastava.

11. Having examining the materials on record, we find that the prosecution story that Amita Shrivastava called up wife of Abhay Yadav in the evening of 30th April 2009 and asked her to send Umesh Yadav provides the reason why Umesh Yadav was seen by PW9 and PW16 running towards her house. The evidence tendered by PW9 and PW16 has not been challenged by the prosecution and these witnesses were not declared hostile and while so their statement that they found few boys chasing Umesh Yadav remains on the record and would bind the prosecution.

12. The High Court in exercise of the powers under section 378 of the Code of Criminal Procedure shall not interfere with the judgment of acquittal on mere suspicion or in cases where two views are possible.

13. In "Bhadragiri Venkata Ravi v. High Court of A.P." (2013) 14 SCC 145 the Hon'ble Supreme Court has held as under:

"25. This Court has time and again laid down parameters for interference by a superior court against the order of acquittal. In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

14. Following the above discussions, Acquittal Appeal No. 24 of 2012 is dismissed.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) Jharkhand High Court, Ranchi Dated 07th August 2023 Tanuj/N.A.F.R