Jharkhand High Court
Manoj Kumar Singh vs The State Of Jharkhand on 28 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 517 of 2001
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(Against the judgment of conviction dated 20.09.2001 and order of
sentence dated 24.09.2001passed by learned Additional Judicial
Commissioner-cum-Special Judge, Vth (C.B.I.), Ranchi, in Sessions
Trial No. 641 of 1998 arising out of Sadar P.S. Case No. 42 of 1998)
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Manoj Kumar Singh s/o late Nakul Singh resident of village-Newri
Vikas, Police Station Sadar, District-Ranchi.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
.....
For the Appellant : Mr. A. K. Kashyap, Sr. Advocate
Ms. Supriya Dayal, Advocate
For the Respondent ` : Mrs. Vandana Bharti, A.P.P.
.....
CAV on: 15/03/2023 Pronounced on: 28/03/2023
Per Sujit Narayan Prasad, J.:
1. The instant appeal, under Sections 374 (2) of the Code of Criminal
Procedure, has been preferred against the judgment of conviction dated
20.09.2001 and order of sentence dated 24.09.2001passed by learned
Additional Judicial Commissioner-cum-Special Judge, Vth (C.B.I.),
Ranchi, in Sessions Trial No. 641 of 1998 arising out of Sadar P.S.
Case No. 42 of 1998, whereby and whereunder, the sole appellant,
namely, Manoj Kumar Singh has been convicted under Sections 120B,
302 and 201 of I.P.C. and has been directed to undergo imprisonment
for life under Sections 302 and 120B of I.P.C. on each count as also has
been directed to undergo rigorous imprisonment for three years and a
fine of Rs.5000 each and in default thereof, to undergo simple
imprisonment of one year for offence under Section 201 of I.P.C.
2. The prosecution story in brief as per the allegation made in the FIR,
reads as under:
Prem Kishore Khandelwal, Bahnoi (brother-in-law) of Rakesh
Khandelwal, informant, had come to Ranchi on 09.04.1998. It is said
that Prem Kishore Khandelwal reached Ranchi in the evening of
09.04.1998 and visited the shop of Bishwanath Khandelwal, where he
met Mukesh Khandelwal s/o Bishwanath Khandelwa, who put him up
in his house at Neori. It is stated that Mukesh Khandelwal assured the
payment of the dues to Prem Kishore Khandelwal. That Prem Kishore
Khandelwal's wife telephoned from Burdwan and she was informed
that her husband had reached Ranchi and he would leave for Burdwan
on 10.04.1998. Prem Kishore Khandelwal didn't return to Burdwan on
the stipulated date. As such the informant came to Ranchi on
12.04.1998, where he met Mukesh Khandelwal, who informed him that
heavy amount has been paid to Prem Kishore Khandelwal and
thereafter Prem Kishore Khandelwal had left for Burdwan. The
informant has further stated that he demanded the receipt of payment of
money from Mukesh Khandelwal, who didn't produce any receipt and
gave evasive reply. It is also alleged that Mukesh Khandelwal adopted
a non-co-operative attitude which was suggestive of the fact that
Mukesh and his father Bishwanath Khandelwal under a pre-planned
conspiracy, so as to escape the liability to pay outstanding amount had
caused the death of Prem Kishore Khandelwal. The informant
expressed his surprise that Bishwanath Khandelwal had knowledge
about the coming of Prem Kishore Khandelwal for realization of the
due amount and surprisingly Bishwanath Khandelwal had gone to
Hardwar on 05.04.1998 after handing over such a huge amount to his
son and daughter.
3. On the basis of the said written report, Ranchi Sadar P.S. Case No.42 of
1998 dated 14.04.1998 was lodged under Sections 364, 365 and 120B
of I.P.A. and the investigating agency on registration of FIR has
commenced the investigation but in course of investigation when the
dead body of the deceased was recovered in Sikidiri, Sikidiri P.S. Case
No. 10 of 1998 was instituted and after identification of the dead body,
the said case was amalgamated with this case and on completion of
investigation, charge sheet was submitted against the accused persons
including the appellant. The charges have been farmed and thereafter
the trial commenced and in course thereof, altogether 12 witnesses have
been examined and after recording the statements of the accused
persons under Section 313 of the Cr.P.C., the learned trial court has
found the charge proved against the appellant beyond all shadow of
doubt and accordingly, passed the order of conviction against him for
charges under Sections 120B, 302, 201 of I.P.C., against which, the
instant appeal has been filed on the ground that it is a case where the
conviction is based upon the circumstantial evidence by applying the
principle as laid down under Section 27 of the Indian Evidence Act but
the basic requirement for proving the charge on the basis of the
confession leading to recovery is not available even if the testimony of
the witnesses had been considered in entirety.
It has been submitted that merely because the knife, spectacles, a
comb and a pen have been recovered from the place which was
disclosed by the appellant in his confession, that cannot only be said to
be completion of chain in order to prove the charge beyond all shadow
of doubt.
It has further been submitted that in the charge which is to be
proved on the basis of the circumstances, the chain is to be completed
and even if there is any break in chain, there cannot be any conviction,
reason being that there will be preponderance of probability and it is
well settled law that in a situation where there is preponderance of
probability there cannot be conviction rather the conviction is only
based upon the charge to be proved beyond all shadow of doubt.
It has been contended that the articles which have been said to be
recovered on the basis of discovery so made have been put to Test
Identification Parade (TIP) but all the articles which have been put for
TIP were not mixed up with other similar type of articles and as such,
even the procedure as laid down for conducting the TIP, has also not
been followed in this case.
4. The argument has been advanced on behalf of the appellant that the
prosecution has miserably failed in connecting the culpability of the
appellant with the crime reason being that for making the provision as
contained in Section 27 of the Evidence Act applicable, two conditions
are prerequisite, namely, (i) the information must be such as has caused
discovery of the fact and (ii) the information must "relate distinctly" to
the fact discovered.
5. Per contra, Mrs. Vandana Bharti, learned APP appearing for the State
has submitted while defending the impugned order of conviction by
making the submission that the conviction is solely based upon the
recovery of the articles on the basis of confession made by the appellant
and the recovered articles were found to be of the deceased having been
identified by the wife of the deceased in the TIP and as such, the
judgment of conviction has rightly been passed by applying the
provision of Section 27 of the Evidence Act.
It has been submitted that it is on the basis of confession made
by the appellant, the belongings of the deceased were found from where
the dead body was found by the police prior to recovery of the
belongings of the deceased and if in this circumstances, the provision of
Section 27 has been held applicable by the learned trial court by
proving the charge beyond all shadow of doubt, the same cannot be
said to be improper.
It has further been argued that since on the basis of confession
made by the appellant before the police, the belongings of the deceased
had been found, as such, it is incorrect on the part of the appellant to
take the ground that chain has not been completed, therefore, there is no
question of showing infirmity in the judgment passed by the learned
trial court holding the appellant guilty.
6. In response to the aforesaid submission, the learned senior counsel
appearing for the appellant has submitted that there is no dispute about
the legal position that on the basis of the discovery made on confession
of the accused, there can be conviction but as per the settled position of
law that even the confessional statement before the police which
distinctly relates to the discovery of a fact may be proved under Section
27, it is only that part distinctly relates to the discovery which is
admissible. But, here, in the given facts of the case, only the spectacles
and other belongings, i.e., a comb and a pen said to be of the deceased
have been found but even if that belongings have been found on the
disclosure being made by the appellant, the same cannot conclusively
complete the chain of commission of crime as alleged to be committed
by the appellant since the dead body was not found on the disclosure
made by the appellant rather the dead body was found earlier to
disclosure made by the appellant and therefore, merely because the
belongings of the deceased have been discovered on the basis of the
confession made by the appellant, the same cannot be said to be
sufficient evidence to prove the guilt of the appellant, as such, the same
having not been taken into consideration by the learned trial court, the
judgment of conviction passed by the learned trial court suffers from
patent illegality.
7. We have heard the learned counsel for the parties, perused the
documents available on record as also the testimony of the witnesses.
8. This Court in order to consider the legality and propriety of the
impugned judgment and before considering the argument advanced on
behalf of the parties regarding the applicability of the provision of
Section 27 of the Evidence Act, deems it fit and proper to refer the
testimony of the prosecution witnesses who are 12 in number.
P.W.1 Niraj Khandelwal, is the son of the deceased. He has
admitted his signature (Ext.1/1) on the T.I. chart. P.Ws.2 and 3 Kamal
Govind Kishore Khandelwal and Raj Kishore Khandelwal are the
cousins of the deceased. P.W.4 Kusum Khandelwal, is the wife of the
deceased and has also admitted a signature (Ext.1/1) on T.I. chart.
P.W.5 Rakesh Khandelwal, the informant and brother-in- law of the
deceased has proved the written report (Ext.2) with signature (Ext.2/1).
He has also produced the Xerox copy of the licence of the deceased and
computerized telephone bill of Telecommunication Department,
Burdwan (marked 'x').P.W.6 Upendra Jha has admitted his signatures
(Exts.3/1 & 4/1) on the inquest report and seizure list respectively.
P.W.7 Dinesh Khandelwal is a hearsay witness. P.W.8 Dr. Tulsi Das
has proved the postmortem report with signature (Exts.5 and 5/1).
P.W.9 Dr. Sanjay Singh, the Circle Officer conducted the T.I.P. of the
articles and has proved the T.I.P chart and signature (Exts.6 & 6/1).
P.W.10 Prithvinath Tiwary is one of the I.O. He has proved the formal
F.I.R. and the signatures (Exts.7,7/1 & 7/2), the seizure list of articles
recovered at Bhusur jungle as per the statement of accused Manoj
Singh (Exts.8,8/1 & 8/2), the seizure list of articles recovered at village-
Mahuara from the house of Sikandar Paswan in presence of accused
Manoj Singh and witnesses (Exts.9 to 9/5), the inquest report with
signature (Bxts.3 and 3/2), seizure list (Exts.4 & 4/2). He has produced
the articles seized vide Ext.9; namely a green 'Safari' Brief case,
'Chadar', pant having level of 'Young Tailor (BWN), Lungi, half Kurta,
shirt, 'Safari suit', Reynolds pen, Spectacles, comb, etc. which have
been marked Material Exts. M/I to M/XIII.
P.W.11 Trilokinath Pathak, is also one of the I.O. and he has
proved the endorsement and signature (Ext.2/2) on the written report,
application (Ext.10) of P.W.10 seeking permission of custody of the
dead body of the deceased, seizure list (Exts.11 to 11/5), Account
Books, Register, Cash Memo, etc. of which, Index Registers of 1996-
98 with entry the name of Govind Khandelwal (Exts. 12 and 12/1),
register of taxable memo with name of Govind Khandelwal at page-
16(Exts.13 & 13/1), Account Books of 96-97 with entry (Exts. 14 &
14/1), Account of Book of 97-98(Exts.15 and 15/1), Cash memo of
Shankar Trading Company (Ext.16), Cash memo of agricultural
produce marketing committee (Ext.17), register of 96-97 (Ext. 18),
register of 97-98(Ext.19), Cash book register(Ext.20) with name of
Bishwanath Khandelwal (Ext. 20/1), the seizure list of attachment of
articles from the house of absconding accused Bishwanath Khandelwal
(Ext.21), the seizure list with signature (Ext.23) of the seized scooter.
P.W.12 Bishundeo Ram is the I.O. of Sikidiri P.S. Case No.10/98.
He has proved the inquest report with signature: (Exts.3 & 3/3) and the
seizure list of articles found near the dead body as per Ext.4 and
Ext.4/2. He has proved Ext. E, the true copy of fard-beyan of Sikidiri
P.S. Case No.10/98 entered in the case diary.
P.W.1 has stated that his father used to supply rice on credit to
Shankar Trading Company, Neori, Vikash at Ranchi. He has also stated
that his father had supplied rice on credit to the tune of Rs.8.5 Lakh
(Rupees Eight Lakhs and Fifty thousand) to accused Bishwanath
Khandelwal and Mukesh Khandelwal and his father had come to
Ranchi for realization of the aforesaid amount. He has stated that
phone call were made to the shop of accused Mukesh Khandelwal and
Mukesh had informed the arrival of the deceased at his shop, but he
made excuses on one pretext or the other. He has stated that he was
present when call was being made to Ranchi. In Para-5 he has admitted
that he identified the dead body of his father and the pant with the label
of 'Young Tailor' Singh Darwaza, Burdwan. He further admitted that
the dead body was recovered in skeleton form and in a decomposed
state. P.W.1 has identified the deceased body on the basis of betel
showing stained teeth. In paras-5 and 6 he has admitted the
disfigurement of the face but he has stated that the face was
recognizable. In para-16 he has stated that he had identified the
deceased by seeing the body and not the cloth. In paras-17 and 18 he
has stated that he identified the articles and there were ten to fifteen
pants, two of three spectacles of same colour. In para-21 he has stated
that he had not told the police that Bishwanath Khandelwal and
Mukesh Khandelwal had come to Burdwan and talked about the
business with his father.
P.Ws.2 and 3 have stated that the wife of deceased had told them
that deceased had come at Ranchi to realize his due amount from
Bishwanath Khandelwal.
P.W. 4 has stated that her husband used to trade on credit to
Shankar Trading Company at Ranchi. She has stated that phone call
was made to the shop of accused Mukesh Khandelwal and Mukesh had
informed the arrival of the deceased at his shop, but he made excuses
on one pretext or the other. In para-1 and in para-12 she has admitted
that her husband had a whole-sale trade licence. She has stated that the
her husband had supplied rice on credit to the tune of Rs.8.5 Lakh
(Rupees Eight Lakhs and Fifty thousand) to accused Bishwanath
Khandelwal and Mukesh Khandelwal and her husband had come to
Ranchi for realization of the aforesaid amount. In para-15 she has stated
that she lodged the missing report on 14.04.1998.
In para-20 of cross-examination she has stated that she had
identified the articles of her husband amongst many articles.
P.W. 5 informant has stated that the deceased used to supply rice
on credit to Shankar Trading Company, Neori, Vikash at Ranchi. He
has stated that the deceased was the son- in-law of Govind Khandelwal
and used to conduct his business from the 'gaddi' (business centre) of
Govind Khandelwal. He has stated that the deceased had supplied rice
on credit to accused Bishwanath Khandelwal and Mukesh Khandelwal
and he had come to Ranchi for realization of the aforesaid amount. He
has stated that phone call were made to the shop of accused Mukesh
Khandelwal and Mukesh had informed the arrival of the deceased at his
shop, but he made excuses on one pretext or the other. In para-3 he has
specifically given the phone number of accused Mukesh Khandelwal.
This witness has further stated in para-5 that on arrival of accused
Mukesh Khandelwal's place, he met the employee Anand Kumar Singh,
who admitted the arrival of the deceased at Mukesh Khandelwal's
house. In para-8, he has stated that P.W.4 had informed him that she
had phoned-up P.Ws.2 and 3 to reach Ranchi. In para-11, he has stated
that the phone number of his 'Gaddi' is 62460. P.W. 5 in para-13 of the
cross-examination has stated that P.W. 4 had not told him about the
exact amount. In cross-examination, in para-14, he has stated that he
has filed xerox copy of the licence of whole- sale dealer of deceased
Prem Kishore Khandelwal as the original has been submitted by P.W.4
with Supply Department at Burdwan for transfer of the licence in her
name. In para-20 of cross-examination he has stated that he heard the
talks of both the sides, as the telephone set was panasonic and two way
talk could be heard without lifting the receiver.
P.W.8 the doctor who conducted autopsy has stated in para-7 that
the persons, who had the occasion to frequently see the deceased, could
have identified the dead body. In para-14 of deposition he stated that
the dead body could be identified by teeth, private parts and
approximate feature other than cloth. This witness in his cross-
examination in paras-10, and 18 stated that he received a letter from the
police disclosing the identity of the deceased. In paras-11 and 19 he has
admitted that he handed over the belongings of the deceased to the
police.
P.W. 9 in para-4 has stated that T.I. chart was prepared in his
presence by his assistant Laxmi Barai. In cross-examination in para-5
he has stated that the T.I. chart was being prepared during the
identification of the articles. The identified articles were sealed and he
put his signatures and he had conducted the TIP on the direction of the
Chief Judicial Magistrate. In para-15 he has stated that the articles were
supplied by the police which were identified by the P.Ws and the ratio
of missing articles was 1:3.
P.W.10, in para-5 has stated that he proceeded with the accused
Manoj to village Mahuara Dist. Godda and he has also stated that a
green colour safari briefcase and clothes were seized as per seizure list,
Ext. 9 and he has proved the signature. Further P.W. 10 in para-16 has
stated that in para-129 of the case diary, there is mention about the
timing of arrest of the accused and it is also mentioned that when the
confessional statement of accused has been recorded.
In cross-examination in para-22, 23 and 24, he has stated that on
22.04.1998 at 13:00 hours, he proceeded to Godda on a jeep
requisitioned from City Control Room, and he reached Mahuara at
22:00. In para-34 he has stated that the supervisory authority had given
direction to him to go to Burdwan and verify the actual amount
involved in between the deceased and accused Mukesh, but he couldn't
go. In para-38 he has stated that he had prayed to the CJM for TIP. In
para-52 has stated that the identification of the dead body and the pant
by P.W.1 is mentioned in para-49 of the case diary. In para-59 he has
stated that he sent the confessional statement on 25.04.1998.
P.W.11 in para-5 has stated that he has raided the house of
Bishwanath Khandelwal and P.W.10 had seized register, account
books, cash memo as per seizure list, Ext.11. A copy of which was
given to Akanchha Khandelwal, daughter of Bishwanath Khandelwal,
who had signed on it (Ext.11/5). In para-7 he has stated that the
chaukidar of Sikidiri P.S. had produced the pant of the deceased and the
seizure list, Ext.21 was prepared. He has stated that P.W.1 identified
pant and under garments of the deceased at R.H.C.H. He has further
stated that on the basis of the confessional statement of accused Manoj
Singh he went with the accused to Bhusur Jungle and seized knife,
spectacles, a comb and a pen.
P.W.11 in pare-26 of cross-examination has stated that the cash
book register bears the name of Bishvanath Khandelwal (Ext.20/1). In
para-28 he has stated that in para-79 of the case diary, it has been
mentioned that Bishwanath Khandelwal's accounts book shows that
money was due for payment to Govind Khandelwal.
PW 12, has stated that the dead body was sent to the hospital on
15.12.98. In para-16, he has stated the place where the dead body was
found is not a public thorough fare and the nearest village was one
kilometer away. He has also stated that he didn't find any sign of
struggle and the clothes of the deceased didn't have mud stained. The
dead body was lying on a sloppy hilly track. P.W.12 has admitted that
the body was in skeleton form with patches of flash and the face
couldn't be properly seen.
9. It is evident from the impugned judgment that the learned trial court has
based his judgment on the basis of the confessional statement made by
the appellant before the police. The confessional statement has been
considered by this court being the part of the lower court records
wherefrom it is evident that the appellant has disclosed the fact by
giving the location, i.e., Bhusur Jungle, basis upon which the
belongings of the deceased, i.e., spectacles, a comb and a pen were
found.
Admittedly, the dead body was found earlier to the recovery of
the belongings of the deceased. The dead body was in decomposed
situation and was send for post-mortem and while conducting post
mortem, the Doctor has not given any specific opinion about the cause
of death.
The learned trial court has proceeded on the premise of Section
27 of the Evidence Act, vis-à-vis, the judgment rests upon
circumstantial evidence as would appear from the material available on
record.
10. This Court, before discussing the factual aspect would like to site a few
decision on the nature, character and essential proof required in a
criminal case which rest on circumstantial evidence alone. The most
fundamental and basic decision of the Hon'ble Apex Court is
Hanumant son of Govind Nargundlar vs. State of Madhya Pradesh,
AIR 1952 SC 343 wherein it has been held that "It is well to remember
that in cases where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should in the
first instance be fully established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and tendency and they
should be such as to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence so far complete as
not to leave any reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show that within all
human probability the act must have been done by the accused."
11. The same view has been taken by the Hon'ble Apex Court in
Bakhshish Singh vs. State of Punjab, (1971) 3 SCC 182 wherein the
Hon'ble Apex Court has observed that the principle in a case resting on
circumstantial evidence is well settled that the circumstances put
forward must be satisfactorily proved and those circumstances should
be consistent only with the hypothesis of the guilt of the accused. These
circumstances should be of a conclusive nature and tendency and they
should be such as to exclude every hypothesis but the one proposed to
be proved. In other words, there must be a chain of evidence so far
complete as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must be such as to
show that within all human probability the act must have been done by
the accused.
The Hon'ble Apex Court while laying down such proposition in
the said case has considered the factual aspect revolving around therein
and while considering the fact has only found the incriminating
evidence against the appellant was his pointing the place where the
dead body of the deceased had been thrown which the Hon'ble Apex
Court has not considered to be a circumstantial evidence though
undoubtedly it raises a strong suspicion against the appellant. the
Hon'ble Apex Court while coming to such conclusion has observed that
even if he was not a party to the murder, the appellant could have come
to know the place where the dead body of the deceased had been
thrown. Hence anyone who saw those parts could have inferred that the
dead body must have been thrown into the river near about that place.
In that pretext, the law has been laid down at paragraph-9 thereof,
which reads as under:
"9. The law relating to circumstantial evidence has been stated by this
Court in numerous decisions. It is needless to refer to them as the law
on the point is well-settled. In a case resting on circumstantial
evidence, the circumstances put forward must be satisfactorily proved
and those circumstances should be consistent only with the hypothesis
of the guilt of the accused. Again those circumstances should be of a
conclusive nature and tendency and they should be such as to exclude
every hypothesis but the one proposed to be proved. In other words,
there must be a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of
the accused and it must be such as to show that within all human
probability the act must have been done by the accused."
12. It is, thus, evident from the close analysis of the aforesaid judgments
the following conditions must be fulfilled before a case fulfilled before
a case against an accused can be said to be fully established:
(i) the circumstances from which the conclusion of guilt is to be
drawn should be fully established.
(ii) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty,
(iii) the circumstances should be of a conclusive nature and tendency,
(iv) they should exclude every possible hypothesis except the one to
be proved, and
(v) there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused.
13. The Hon'ble Apex Court has reiterated the said principle again in the
case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4
SCC 116 holding all the above five principles to be the golden
principles which constitute the panchsheel of the proof of a case based
on circumstantial evidence.
The Hon'ble Apex Court in the said case as under paragraph-155,
156, 157, 158 and 159 has been pleased to hold that if these conditions
are fulfilled only then a Court can use a false explanation or a false
defence as an additional link to lend an assurance to the court and not
otherwise. Paragraphs-155, 156, 157, 158 and 159 of the said judgment
read as under:
"155. It may be interesting to note that as regards the mode of proof in
a criminal case depending on circumstantial evidence, in the absence of
a corpus delicti, the statement of law as to proof of the same was laid
down by Gresson, J. (and concurred by 3 more Judges)
in King v. Horry [1952 NZLR 111] thus:
"Before he can be convicted, the fact of death should be proved
by such circumstances as render the commission of the crime
morally certain and leave no ground for reasonable doubt: the
circumstantial evidence should be so cogent and compelling as to
convince a jury that upon no rational hypothesis other than murder
can the facts be accounted for."
156. Lord Goddard slightly modified the expression "morally certain"
by "such circumstances as render the commission of the crime
certain".
157. This indicates the cardinal principle of criminal jurisprudence that
a case can be said to be proved only when there is certain and explicit
evidence and no person can be convicted on pure moral
conviction. Horry case [1952 NZLR 111] was approved by this Court
in Anant Chintaman Lagu v. State of Bombay [AIR 1960 SC 500 :
(1960) 2 SCR 460 : 1960 Cri LJ 682] . Lagu case [AIR 1960 SC 500 :
(1960) 2 SCR 460 : 1960 Cri LJ 682] as also the principles enunciated
by this Court in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 :
1952 SCR 1091 : 1953 Cri LJ 129] have been uniformly and
consistently followed in all later decisions of this Court without any
single exception. To quote a few cases -- Tufail case [(1969) 3 SCC
198 : 1970 SCC (Cri) 55] , Ramgopal case [(1972) 4 SCC 625 : AIR
1972 SC 656] , Chandrakant Nyalchand Seth v. State of Bombay [
Criminal Appeal No 120 of 1957, decided on February 19, 1958]
, Dharambir Singh v. State of Punjab [ Criminal Appeal No 98 of 1958,
decided on November 4, 1958 printed on green papers in bound
volumes] . There are a number of other cases where
although Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952
SCR 1091 : 1953 Cri LJ 129] has not been expressly noticed but the
same principles have been expounded and reiterated, as in Naseem
Ahmed v. Delhi Administration [(1974) 3 SCC 668, 670 : 1974 SCC
(Cri) 198, 200 : (1974) 2 SCR 694, 696] , Mohan Lal Pangasa v. State
of U.P. [(1974) 4 SCC 607, 609 : 1974 SCC (Cri) 643, 645 : AIR 1974
SC 1144, 1146] , Shankarlal Gyarasilal Dixit v. State of
Maharashtra [(1981) 2 SCC 35, 39 : 1981 SCC (Cri) 315, 318-19 :
(1981) 2 SCR 384, 390 : 1981 Cri LJ 325] and M.G. Agarwal v. State
of Maharashtra [AIR 1963 SC 200 : (1963) 2 SCR 405, 419 : (1963) 1
Cri LJ 235] -- a five-Judge Bench decision.
158. It may be necessary here to notice a very forceful argument
submitted by the Additional Solicitor General relying on a decision of
this Court in Deonandan Mishra v. State of Bihar [AIR 1955 SC 801 :
(1955) 2 SCR 570, 582 : 1955 Cri LJ 1647] to supplement his argument
that if the defence case is false it would constitute an additional link so
as to fortify the prosecution case. With due respect to the learned
Additional Solicitor-General we are unable to agree with the
interpretation given by him of the aforesaid case, the relevant portion
of which may be extracted thus:
"But in a case like this where the various links as stated above
have been satisfactorily made out and the circumstances point to the
appellant as the probable assailant, with reasonable definiteness and
in proximity to the deceased as regards time and situation,. . . such
absence of explanation or false explanation would itself be an
additional link which completes the chain."
159. It will be seen that this Court while taking into account the
absence of explanation or a false explanation did hold that it will
amount to be an additional link to complete the chain but these
observations must be read in the light of what this Court said earlier
viz. before a false explanation can be used as additional link, the
following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the prosecution
have been satisfactorily proved,
(2) the said circumstance points to the guilt of the accused with
reasonable definiteness, and
(3) the circumstance is in proximity to the time and situation."
14. This Court is now proceeding to examine the legality and propriety of
the impugned judgment on the facts of the given case. Admittedly
herein, it is a case where there is no eye witness. As per the prosecution
version, the same was reported on the basis of the written report
furnished by Rakesh Khandelwal. In the circumstances, the wife of the
deceased has reported the case of murder of her husband on an
information being given by Sikidiri Police Station after discovery of the
dead body.
15. As per the prosecution version, the deceased husband of the informant
had come from Burdwan for recovery of the dues amount and in course
thereof when there was no information for about 4-5 days and on
receipt of information about the dead body, written report was
submitted. It has come in the testimony of the informant-wife of the
deceased husband and the son, P.W. 1-Niraj Khandelwal, that on
confession being made by the appellant, the belongings of the deceased
like spectacles, a comb, a pen and a knife had been found on disclosure
being made by the appellant, which according to the prosecution
version had been used while committing crime of murder of the
deceased.
16. It has come in the testimony that the belongings of the deceased had
been identified by P.W. 5 on TIP basis upon which the complicity of
the appellant has been attributed in the commission of crime of murder
of the deceased.
17. It is further evident from the testimony of P.W. 10 that on disclosure so
made by the appellant about hiding the briefcase etc., the same was said
to have been hidden in the district of Godda in the house of the brother-
in-law of the appellant which subsequently had been found to be of the
deceased.
18. The trial court on examination of the Niraj Khandelwal-P.W. 1 and
Kusum Khandelwal-P.W. 4 has found their version corroborated from
the testimony of the investigating officer and after applying the
mandate of the provision of Section 27 of the Evidence Act has
convicted the appellant.
19. There is no dispute about the position of law as mandated under Section
27 of the Evidence Act that the same is exception to Article 25 to 26,
which prohibit the proof of a confession made before the police officer
while a person is in police custody unless it is made in immediate
presence of a Magistrate. Section 27 allows that part of the statement
made by the accused to the police "whether it amounts to a confession
or not", which relates distinctly to the fact thereby discovered to be
proved. Thus, even a confessional statement before the police which
distinctly relates to the discovery of a fact may be proved under Section
27, it is only that part distinctly relates to the discovery which is
admissible.
20. Thus, the recovery pursuant to the disclosure statement made by the
accused under Section 27 of the Evidence Act is admissible in
evidence. It is also settled that the Court must disregard the
inadmissible part of the statement and take note only that part of his
evidence, which distinctly relates to the discovery of the articles
pursuant to the disclosure statement made by the accused. It is further
settled proposition of law that discovery of the fact in this connection
includes the discovery of an object found, the place from which it is
produced and the knowledge of the accused as to his existence.
Reference with respect to the aforesaid settled proposition may be made
to the judgment of the Hon'ble Apex Court in the case of
Earabhadrappa v. State of Karnataka, AIR 1983 SC 446. Paragraph-7
of the said judgment reads as under:
"7. There is no controversy that the statement made by the appellant
Ex. P-35 is admissible under Section 27 of the Evidence Act. Under
Section 27 only so much of the information as distinctly relates to the
facts really thereby discovered is admissible. The word "fact" means
some concrete or material fact to which the information directly
relates. As explained by Sir John Beaumont in Pulukuri
Kotayya v. King-Emperor [(1947) 74 IA 65 : AIR 1947 PC 67 : 230
IC 135] :
"... it is fallacious to treat the "fact discovered" within the
section as equivalent to the object produced; the fact discovered
embraces the place from which the object is produced and the
knowledge of the accused as to this, and the information given must
relate distinctly to this fact.""
Further, in Nisar Khan @ Guddu v. State of Uttaranchal, 2006
(9) SCC 386, the Hon'ble Apex Court at paras-6 to 8 has been pleased
to observe which read as under:
"6. Regarding the second contention that the recovery of arms has not
been proved by the prosecution has also no substance. It is evidence
on record that the accused were arrested on 17-12-1999 and pursuant
to a disclosure statement made by them, the arms were recovered from
the bank of Gaula river where these had been hidden under the sand
and covered by the stones. All the arms were recovered as pointed out
by each accused hidden under the stones. The High Court fell in error
in holding that the recovery has not been proved as these were
recovered from a place which is frequented by the public. This finding
of the High Court is contrary to the evidence on record. It is now well-
settled principle of law that the recovery pursuant to the disclosure
statement made by the accused under Section 27 of the Evidence Act is
admissible in evidence. In Dhananjoy Chatterjee v. State of
W.B. [(1994) 2 SCC 220 : 1994 SCC (Cri) 358] it is held that the
entire statement made by an accused person before the police is
inadmissible in evidence being hit by Sections 25 and 26 but that part
of his statement which led to the discovery of the articles is clearly
admissible under Section 27 of the Act. It is also held that the Court
must disregard the inadmissible part of the statement and take note
only of that part of his statement which distinctly relates to the
discovery of the articles pursuant to the disclosure statement made by
the accused. It is further held that the discovery of the fact in this
connection includes the discovery of an object found, the place from
which it is produced and the knowledge of the accused as to its
existence.
7. In Golakonda Venkateswara Rao v. State of A.P. [(2003) 9 SCC
277 : 2003 SCC (Cri) 1904] this Court reiterated the view and held
that the discovery statement of an accused leading to recovery of
crime articles from concealed place, even though the discovery
statement and the recovery memo did not bear the accused's
signature, the fact of recovery from the well and dug out was from a
place which was pointed out by the appellant and, therefore, such
discovery was voluntary. That the recovery was in consequence to the
information given was fortified and confirmed by the discovery of the
apparel worn and skeletal remains of the deceased and, therefore, the
information and statement cannot be held to be false. In the present
case on the recovery memo the signatures of all the accused have been
obtained. In Praveen Kumar v. State of Karnataka [(2003) 12 SCC
199 : 2004 SCC (Cri) Supp 357] the same view has been reiterated.
8. As already noted, in the instant case the discovery of the arms was
pursuant to the disclosure statement made by the accused immediately
after the arrest and the offending arms were recovered at the place
pointed out by each of the accused which were concealed under the
sand and covered by the stones. The High Court in this regard fell in
grave error by disbelieving the recovery memo solely on the ground
that the place is a common place which is frequented by the public.
The High Court failed to take notice that the recovery has been made
from underneath the sand covered by the stones pursuant to the
disclosure statement pointed out by each of the accused."
21. Since the law is well settled that the charge in a case of circumstantial
evidence is to be proved only in a case if chain of evidence so far
complete as not to leave any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such as to show that
within all human probability the act must have been done by the accused.
22. Here, in the given facts of the case as we have gathered from the material
available on record that the appellant although has made confession before
the police based upon which the knife, used in commission of crime,
spectacles, a comb and a pen of the deceased had been recovered. It has
been deposed by the investigating officer on the basis of the confession
made by the appellant that the crime was committed from the said knife
which was thrown nearby the road in the Bhusur Jungle.
23. The confession made before the police is having no evidentiary value,
even though the knife has been recovered on the basis of the disclosure
made by the appellant, it cannot be construed that the said knife was used
as an object to commit crime. It is for the reason that the duty of the
prosecution to get the said version of the appellant as was disclosed in the
confession of using the said knife in commission of crime of murder by
sending it before the Forensic Science Laboratory in order to ascertain its
use in the commission of crime by taking the finger print of the appellant
with the finger mark on the knife in order to come to the conclusion of use
of knife in commission of crime so as to lead the completion of chain.
But, admittedly, the knife has not been send for its testing in the
FSL.
24. It is further evident that the belongings which were found to be traced out
on the basis of the disclosure made by the appellant can also not be said to
be completion of chain to establish the guilt of the appellant since
admittedly on disclosure made by the appellant, the dead body of the
deceased was found from the place said to have been disclosed by the
appellant in the police custody as the dead body was found prior to
disclosure so made by the appellant and that is the admitted case of the
prosecution.
25. Although, it has been argued that there was a telephonic conversion
between the wife of the deceased and Mukesh Kumar Khandelwal, the
another convict, as such, it is a case of last seen but, we, on consideration
of the testimony of the investigating officer has found that the
investigating officer has not proceeded to corroborate this aspect of the
matter in order to prove the last seen theory by getting the call detail
record (CDR) and as such, merely because the wife of the deceased has
deposed about the telephonic conversation with Mukesh Kumar
Khandelwal that cannot be a sufficient ground to prove the guilt beyond
all reasonable doubt against the appellant.
26. This Court, on the basis of the aforesaid discussion and after going
through the judgment of conviction passed by the learned trial court has
found that the learned trial court has considered the implication of Section
27 of the Evidence Act but while doing so the learned trial court has failed
to consider the basic principle of completion of chain in proving the guilt
in a case of circumstantial evidence.
27. Since the learned trial court has only considered the fact about recovery of
knife, spectacles, a comb and a pen which led the learned trial court to
come to the conclusion of commission of guilt by the appellant beyond all
reasonable doubt. But the said finding according to the considered view of
this Court, cannot be said to be just and proper, reason being that while
considering the case of circumstantial evidence the chain is required to be
completed but herein, the chain is missing since the knife said to have
been used in commission of crime had not been send for its chemical
examination, as such, it cannot be said that the said knife was used in the
commission of crime.
The other belongings said to have been found has been found to be
not identified by conducting proper procedure to conduct the Test
Identification Parade (TIP) of the articles. It has come in the testimony of
the investigating officer that the belongings have not been put to TIP
along with similar type of belongings so put for identification.
28. As such, the recovery so made leading to attract the provision of
Section 27 of the Evidence Act on the basis of the discussion made in
the preceding paragraph, according to the considered view cannot be
said to attract the principle to establish the charge by taking aid of
Section 27 of the Evidence Act.
Further, the prosecution has also failed to establish any nexus of
the appellant with Mukesh Khandelwal since no detailed investigation
in this regard has been conducted by the investigating officer.
29. Although the disclosure has been made in the confession report that the
appellant has been hired by Mukesh Khandelwal but no investigation in
this regard has been made in order to come to conclusive proof of
proving the said aspect of the matter. Therefore, this Court on the basis
of the aforesaid reasoning and applying the principle laid down by the
Hon'ble Apex Court in proving the charge in a case of circumstantial
evidence, is of the view that the learned trial court has not considered
the legal position as well as the factual aspect of the given case and as
such, the impugned judgment requires interference.
30. Accordingly, the instant appeal stands allowed.
31. In consequence thereof, the judgment of conviction dated 20.09.2001
and order of sentence dated 24.09.2001passed by learned Additional
Judicial Commissioner-cum-Special Judge, Vth (C.B.I.), Ranchi, in
Sessions Trial No. 641 of 1998, is hereby quashed and set aside as far
as this appellant is concerned.
32. The appellant is acquitted and discharged from his criminal liability.
33. Let the Lower Court Records be sent back to the Court concerned
forthwith, along with the copy of this Judgment. [
I agree, (Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
(Subhash Chand, J.)
Jharkhand High Court, Ranchi
Dated: 28/03/2023
Saurabh / N.A.F.R.
