Jharkhand High Court
Against The Judgment And Order Of ... vs The State Of Jharkhand on 10 June, 2024
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Deepak Roshan
Criminal Appeal (DB) No. 173 of 2015
With
Criminal Appeal (DB) No. 84 of 2015
Against the judgment and order of conviction and sentence dated
25.09.1998 passed by Shri Krishna Kumar, learned Judicial
Commissioner-IV, Ranchi in Sessions Trial No. 322/ 2009.
Vijay Kumar ... Appellant
(in Cr. Appeal (DB) No. 173 of 2015)
Lokesh Kumar Mishra ... Appellant
(in Cr. Appeal (DB) No. 84 of 2015)
Versus
The State of Jharkhand ... Respondent
----
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE DEEPAK ROSHAN
In Cr. Appeal (DB) No. 173 of 2015
For the Appellant : Mrs. Rita Kumari, Advocate
For the Respondent : Mr. Bhola Nath Ojha, Spl. P.P.
In Cr. Appeal (DB) No. 84 of 2015
For the Appellant : Mr. Nilesh Kumar, Adv.
For the Respondent : Mr. Bhola Nath Ojha, Spl. P.P.
Dated 10th June, 2024
----
Rongon Mukhopadhyay, J. : 1. Heard Mrs. Rita Kumari, learned counsel appearing
for the appellant in Cr. Appeal (DB) No. 173 of 2015, Mr. Nilesh Kumar,
learned counsel for the appellant in Cr. Appeal (DB) No. 84 of 2015 and Mr.
Bhola Nath Ojha, learned Spl. P.P. Since both these appeals arise out of a
common judgment, they are being disposed of by this common order.
2. These appeals are directed against the judgment and order of
conviction and sentence dated 21.01.2015 (sentence passed on 23.01.2015)
passed by Shri Krishna Kumar, learned Judicial Commissioner-IV, Ranchi in
S.T. No. 322/2009, whereby and whereunder, the appellants have been
convicted for the offence punishable u/s 302/34 of the Indian Penal Code and
the appellant in Cr. Appeal (DB) No. 173/2015 has further been convicted for
the offence under Section 381 IPC and both have been sentenced to undergo
rigorous imprisonment for life for the offence under Section 302/34 I.P.C
along with a fine of Rs. 10,000/- and in default in payment of fine, to undergo
simple imprisonment for one year. No separate sentence under Section 381
IPC has been passed against the appellant in Cr. Appeal (DB) No. 173/2015.
3. The prosecution case arises out of the fardbeyan of Ambuj Singh
recorded on 17.12.2008 at 04:00PM, wherein it has been stated that on the
same date at 01:00PM he was informed by his tenant Nilesh that the front flat
is locked for 3-4 days and foul smell is coming from inside. He was, at that
point of time, going towards the Airport to receive his daughter Awantika.
After receiving her, he went to Sadar P.S where the matter was informed and
thereafter he went to his apartment at Panchwatipuram, where the door was
found locked. On breaking open the lock, a foul smell came emanating from
inside and on going inside, the dead body of Rajesh Kumar, his wife Rashmi
Raj @ Manju and their child Sudhanshu were found lying in a pool of blood.
The wife of the house guard Neelam had disclosed that on 13.12.2008 the
driver Vijay Kumar had given her prasad and on 14.12.2008, she had seen the
driver and the maid servant of Rajesh conversing. He was of the belief that
the driver Vijay Kumar along with unknown persons have committed the
triple murder.
Based on the aforesaid allegations, Sadar P.S. Case No. 294/08 was
instituted against Vijay Kumar and others for the offence punishable under
Section 302/34 IPC. On completion of investigation, charge sheet was
submitted against Vijay Kumar, Ram Bachan Sharma, Lokesh Kumar Mishra
and Amit Kumar and after cognizance was taken, the case was committed to
the Court of Sessions where it was registered as Sessions Trial No. 322 of 2009.
Charge was framed against the accused persons under Section 302/34 IPC
and additionally against Vijay Kumar under Section 381 IPC which was read
over and explained to the accused in Hindi to which they pleaded not guilty
and claimed to be tried.
4. The prosecution has examined as many as ten (10) witnesses in support
of its case.
2|Page
P.W.1 Dr. Samarina Kamal was posed as a Tutor (Department of FMT),
R.I.I.M.S and on 18.12.2008 she had conducted the autopsy on the dead body
of Rajesh Kumar and had found the following injuries:
(i) Lacerated wound:-
a) 3 x 2 ½ cm x bone deep on the right side of forehead
with depressed fracture measuring 3cm diameter on right
frontal bone.
b) 6 cm x 3 cm x bone deep on right side of parietal
occipital region of head with depressed fracture of
underlying bone measuring 5 x 3 cm.
c) 5 cm x 2 cm x bone deep on right parietal region of head
with mosaic fracture of underlying bone.
(ii) Internal: - Presence of blood and blood clot admixed with
liquified brain matter.
The above noted injuries are ante-mortem caused by hard and blunt
substance. Death was opined to have been caused on account of head injury.
She has proved the post mortem report which has been marked as Ext.-1.
On the same day she had conducted autopsy on the dead body of
Sudhanshu and had found the following injuries:
(i) Lacerated wound: -
a) 4 cm x 3 cm x bone deep on the left parietal eminence
with depressed fracture of underlying bone measure 3 ½
cm diameter..
(ii) Internal:- Presence of blood and blood clots admixed with
liquified brain matter.
The above noted injury was ante-mortem caused by hard and blunt
substance. Death was opined to be due to head injury. The post mortem
report has been proved and marked as Ext.-2.
On the same day, she had also conducted autopsy on the body of
Rashmi Raj and had found the following injuries:
3|Page
(i) Lacerated wound: -
a) 5 x 2 cm x bone deep on the left side of forehead with
crack fracture of underlying bone.
b) 5 cm x 2 cm x bone deep on right side of parietal
occipital region of head anterior part with depressed
fracture of underlying bone measuring 3½ cm in diameter.
c) 6 cm x 3 cm x bone deep on right parietal region of head
posterior part with depressed fracture of underlying bone
measuring 3½ cm in diameter.
(ii) Internal: - There is presence of blood and blood clot admixed
with liquified brain matter.
The above noted injuries are ante-mortem caused by hard and blunt
substance. Death was on account of head injury. At the time of post mortem
examination, she was carrying a male fetus of eight months.
She has proved the post mortem report which has been marked as
Exhibit-3.
P.W.2 Naresh Lal Bhushan is the father-in-law of Rajesh Kumar. His
son-in-law had a Maruti 800 car and Vijay Kumar was the driver who also
stayed in the same apartment. On 17.12.2008, he came to know through
telephone that his son-in-law, daughter and grandson have been murdered
and when he came to Ranchi, the needle of suspicion was found to be
pointing towards the driver Vijay Kumar. The driver had fled away with the
car along with cash, jewellery, mobile etc. It has also come to light that 2-3
persons were involved in the murders.
In cross-examination he has deposed that Vijay Kumar was working as
a driver to his son-in-law since 1-1.5 years prior to the occurrence.
P.W.4 Ambuj Singh is the informant who has stated that Rajesh was his
tenant who stayed along with his wife and son. The incident is of 17.12.2008
when at about 01:00PM, he had reached Booty More on way to the Airport
where another of his tenant Nilesh Mishra had called him over phone and
disclosed that the apartment of Rajesh is closed for 3-4 days and a foul smell
is coming from inside. At this, he called up Vijay, the driver of Rajesh, but his
4|Page
phone was found switched off. A suspicion cropped up in his mind but since
he had to receive his daughter, he went to the Airport and after receiving his
daughter he went to Sadar P.S. and come to the apartment with the Police.
On entering the campus, he could feel that there was a foul smell emanating.
After breaking the lock, he along with the Police entered the flat where the
dead body of Rajesh, his wife and his child were found. There is a person
called Balram, who stays in the outhouse and his wife disclosed that on
13.12.2008, Rajesh and his family had come back from Sani Mandir but after
that she had not seen them. She had also stated that on 14.12.2008 when the
maid servant of Rajesh came, the driver who was inside the grill had turned
her away. At the time of the incident, the car as well as the driver of Rajesh
were found missing. He has identified his signature in the fardbeyan which
has been marked as Ext.-5. He has stated that in his presence, three seizure
lists were prepared: a shirt with blood stains and a Nokia Mobile. He signaled
towards Lokesh Kumar Mishra while stating that the shirt was recovered
from his house. He has identified his signature in the first seizure list which
has been marked as Ext.-4/1. When the lock was sought to be broken, it was
the latch which gave way while the lock remained intact. Vijay Kumar when
apprehended, had produced the key to the said lock and a seizure list was
prepared. He has proved his signature in the seizure list which has been
marked as Ext.-6. His son had also signed on the seizure list which has been
marked as Ext.-6/1. The Police had also seized some fried articles which had
rotted kept in a container and a third seizure list was prepared. He has
identified his signature and the signature of his son upon the said seizure list
which have been marked as Ext.-7 and Ext.-7/1 respectively.
In cross-examination he has deposed that the seizure list with respect
to seizure of shirt and Nokia mobile was prepared after 3-5 days from the
recovery of the dead bodies. He is acquainted with the accused Amit from
before and it was on the insistence of Amit that the flat was given on rent to
Rajesh.
P.W.5 Neelam Devi did not support the case of the prosecution and
was accordingly declared hostile by the prosecution.
5|Page
P.W.6 Shailendra Kumar Sinha was posted in the Forensic Science
Laboratory and on 19.12.2008, on the orders of the Director, FSL, a team was
constituted and on the same date, the team had visited the place of occurrence
at 12:30PM. Samples were taken from the place of occurrence which were
variously marked. All the exhibits were sealed and a list was prepared with
a direction to the Investigating Officer to send those for chemical
examination. The team had prepared a report which has been marked as Ext.-
8. The report was forwarded from the Office of the Director, FSL to the Senior
S.P., Ranchi and the said letter has been marked as Ext.-9.
P.W.7 Balram Sharma has been declared hostile by the prosecution.
P.W.8 Sunita Gudiya has also been declared hostile by the prosecution.
P.W.9 Brahma Deo Prasad was posed as an Officer-in-charge of Sadar
P.S. and on 17.12.2008 at 3:15PM, Ambuj Singh came to the Police Station and
disclosed that in his flat a lock has been put for 3-4 days and a foul smell is
coming from inside. On such information, he along with other Police
personnel as well as Ambuj Singh reached the flat and after Ambuj Singh had
broken the lock, they entered and found the dead body of three persons lying
in a pool of blood. Ambuj Singh identified the deceased as his tenant Rajesh
Kumar, Rashmi Raj and Sudhansu Kumar. He had recorded the fardbeyan of
Ambuj Singh which has been marked as Ext.-9. Ambuj Singh had disclosed
that Vijay Kumar, the driver of Rajesh Kumar along with other unknown
persons had committed the murder with sharp cutting weapon. The inquest
report and dead body challan of all the deceased were prepared. He had
informed the F.S.L team, dog squad and the finger print experts. He had taken
over investigation and had inspected the place of occurrence which is the
ground floor of the two storied house of Ambuj Singh at Panchwatipuram
locality. Blood was found in the bed, mattress, bed sheet, pillow, on the floor
as well as on the wall. There was blood scattered in all the rooms. There was
a small kitchen in the southern side of the house which was disclosed to be
used by Vijay Kumar. He had sent the bodies for post mortem. He had
recorded the re-statement of the informant and the statement of Sunita
Gudiya and Abhimanyu Singh. He has proved the formal FIR which has been
6|Page
marked as Ext.-10. The mobile no. of Vijay Kumar is 9955755227 and the IMEI
No. is 352514010573310 which is in the name of Chandni Sinha, wife of Vijay
Kumar and an application was sent for CDR and IMEI. The mobile no. of
Rajesh Kumar is 9973543955. The police had gone to Muzaffarpur for
apprehending Vijay Kumar and on 21.12.2008, the statement of Naresh Lal
Bhushan was recorded who disclosed that Vijay Kumar had come in a Maruti
car having Registration No. BR-01V-5999 and there were some other persons
with him. The call details of the Mobile No. 9955755227 and 9937543955 were
obtained from which it was clear that the SIM of Rajesh Kumar was used by
Vijay Kumar at 18:59 hours on 14.12.2008. The CDR which was obtained from
the Technical Cell has been proved and marked as Ext.-11. The statement of
Balram Sharma and Neelam Devi were recorded by him. A tangi was
recovered from the place of occurrence and a seizure list was prepared which
has been marked as Ext.-12. On 24.12.2008, Ram Bachan Sharma was arrested
and his confessional statement was recorded. On his pointing out, blood-
stained clothes were recovered and a seizure list was prepared which has
been proved and marked as Ext.-12/1. The confessional statement of Ram
Bachan Sharma has been marked as Ext.-13. On 24.12.2008, he had reached
Panchwatipuram and recorded the confessional statement of Lokesh Kumar
Mishra and the said confessional statement has been marked as Ext.-13/1. On
his confessional statement, some clothes and a mobile were seized and a
seizure list was prepared which has been marked as Ext.-12/2. On the same
day, Amit Kumar was apprehended and his confessional statement was
recorded which has been proved and marked as Ext.-13/2. On his
confessional statement, a mobile was recovered which was seized and a
seizure list was prepared which has been marked as Ext.-12/2. On the basis
of the tower location, Vijay Kumar was apprehended from besides the road
near Anandpur Gagollia Middle School and on search Rs. 1640/-, some
mobiles and some other articles were recovered from his possession for which
a seizure list was prepared which has been marked as Ext.-12/3. The
confessional statement of Vijay Kumar was recorded and which
has been proved and marked as Ext.-13/3. On 04.01.2009, the
7|Page
confessional statement of Vijay Kumar was once again recorded in which he
had stated that after locking the main gate, he had thrown the key in the drain
and on his pointing out, the key was recovered and a seizure list was
prepared which has been marked as Ext.-12/4. The confessional statement
has been marked as Ext.-13/4. On 05.01.2009, he had obtained the post
mortem report. Due to his transfer on 26.02.2009, he had handed over the
charge of investigation to the Officer-in-charge Sanjay Kumar.
In cross-examination he has deposed that the report from the Forensic
Science Laboratory did not reach him during the period he was in charge of
investigation. He had not got recorded the statement of any of the persons
under Section 164 Cr.P.C. Nothing was recovered pursuant to the
confessional statement of Amit Kumar. The looted cash and jewellery were
never recovered.
P.W.10 Sanjay Kumar was posted as an Officer-in-charge of Sadar P.S,
Ranchi and on 17.03.2009, he had taken over investigation of the case from
the earlier officer-in-charge. He had gone through the case diary and the
statement of witnesses and had thereafter submitted charge sheet against the
accused persons under Section 302/381/34 IPC.
5. The statement of the accused persons were recorded under Section 313
Cr.P.C. in which they have denied their complicity in the murders except
Vijay Kumar who admitted that the murders were committed by Lokesh and
he was guarding the door.
6. It has been submitted by Mrs. Rita Kumari, learned counsel appearing
for the appellant Vijay Kumar in Cr. Appeal (DB) No. 173 of 2015 that there
are no eye witnesses to the occurrence and only on the basis of circumstantial
evidence, the appellant has been implicated. It has been submitted that
acceptance of guilt in statement under Section 313 Cr.P.C. would not make
the appellant liable for being convicted.
7. Mr. Nilesh Kumar, learned counsel appearing for the appellant Lokesh
Kumar Mishra in Cr. Appeal (DB) No. 84 of 2015 has submitted that the only
basis for conviction of the appellant is the statement of Vijay Kumar recorded
under Section 313 Cr.P.C, wherein he has stated that the murder was
8|Page
committed by this appellant while he was merely standing on the door
keeping a watch outside. The statement under Section 313 Cr.P.C. cannot be
used in absence of any corroborative evidence to frame an accused.
8. Mr. Bhola Nath Ojha, learned Spl. P.P has submitted that incriminating
articles were recovered on the confessional statements of the appellants. He
has further submitted that so far as Vijay Kumar is concerned, he had
accepted his guilt at the time of framing of charge as also in statement
recorded under Section 313 Cr.P.C.
9. We have heard the learned counsel for the respective parties and have
also perused the lower court records.
10. The case relates to the murder of Rajesh Kumar, a tenant of the
informant, his wife Rashmi Raj and their infant child Sudhansu in their rented
apartment. Admittedly, there are no eye witnesses to the occurrence and only
on the basis of circumstantial evidence, the appellants have been convicted.
Certain material facts were divulged by Neelam Devi and Balram Sharma
showing the complicity of the appellant Vijay Kumar, who was the driver of
the deceased Rajesh before the Investigating Officer (P.W.8) but the said
witnesses who have been examined as P.W.5 and P.W.7 have been declared
hostile by the prosecution. The prosecution case primarily relies upon the
recovery of incriminating articles from the possession of the appellants or on
their pointing out apart from the 313 Cr.P.C. statement of Vijay Kumar.
11. The learned trial court has based its conviction on the appellant Vijay
Kumar on account of recovery of a Titan wrist watch and a mobile phone of
Sony Ericson as well as the seizure of the Maruti car belonging to the
deceased Rajesh Kumar from the possession of the said appellant. So far as
the Maruti car is concerned, though it is said to have been seized by the Police,
but no seizure list was prepared thereby nullifying the contention that it was
recovered from the possession of appellant Vijay Kumar. So far as the seizure
of a golden coloured wrist watch from the possession of Vijay Kumar is
concerned, the same is said to be of the deceased Rajesh Kumar but neither
any TIP has been held nor any witness has stated that the wrist watch in
question belongs to the deceased. The mobile and SIM supposedly of the
9|Page
deceased Rajesh Kumar has also not conclusively been proved and the only
basis as per the evidence of P.W.9 is of such information gathered from
various sources without disclosing any such source. Even the key, which as
per the confessional statement of Vijay Kumar, was thrown in the drain and
on his pointing out, the same was recovered, but here again the prosecution
has failed to connect the recovered key with the lock of the apartment. The
F.S.L report has not been brought on record. There are glaring inadequacies
in the investigation done and in a case of such magnitude, the brutality of
which is writ large it is least expected that such perfunctory investigation will
be conducted by the Investigating Officer. Banking on the confessional
statement and the 313 Cr.P.C. statement of Vijay Kumar would not be of any
assistance to the prosecution in absence of any corroborative evidence. In the
case of Dehal Singh Vs. State of Himachal Pradesh reported in (2010) 9 SCC
85, it has been held as follows:
"23. Statement under Section 313 of the Code of Criminal Procedure
is taken into consideration to appreciate the truthfulness or otherwise
of the case of the prosecution and it is not an evidence. Statement of
an accused under Section 313 of the code of Criminal Procedure is
recorded without administering oath and, therefore, the said
statement cannot be treated as evidence within the meaning of
Section 3 of the Evidence Act. The appellants have not chosen to
examine any other witness to support this plea and in case none was
available they were free to examine themselves in terms of Section
315 of the Code of Criminal Procedure which, inter alia, provides that
a person accused of an offence is a competent witness of the defence
and may give evidence on oath in disproof of the charges. There is
reason not to treat the statement under Section 313 of the Code of
Criminal Procedure as evidence as the accused cannot be cross-
examined with reference to those statements. However, when an
accused appears as a witness in defence to disprove the charge, his
version can be tested by his cross-examination. Therefore, in our
opinion the plea of the appellant Dinesh Kumar that he had taken lift
in the car is not fit to be accepted only on the basis of the statements
10 | P a g e
of the appellants under Section 313 of the Code of Criminal
Procedure."
12. When we consider the case of appellant in Cr. Appeal (DB) No. 84 of
2015, it is apparent that some clothes and a mobile were seized on his
confessional statement. The learned trial court had overtly relied on the
seizure of a blood-stained shirt without verifying the nexus between the
blood-stained shirts and the murders. Once again at the cost of repetition, we
are highlighting the fact that no FSL report has been obtained. It would be
dangerous to rely on such recovery without there being any corroborative
evidence. So far as the 313 Cr.P.C. statement of the appellant Vijay Kumar
inculpating himself as well as the appellant Lokesh Kumar Mishra is
concerned, as discussed above, such statement would not have any intrinsic
value in absence of any corroborative evidence. The prosecution, therefore,
has miserably failed to prove its case against the appellant.
13. We, as a consequence to the discussions made hereinabove, set aside
the judgment and order of conviction and sentence dated 21.01.2015 (sentence
passed on 23.01.2015) passed by Shri Krishna Kumar, learned Judicial
Commissioner-IV, Ranchi in S.T. No. 322 of 2009.
14. These appeals are allowed.
15. Since the appellants are in custody, they are directed to be released
immediately and forthwith, if not wanted in any other case.
(RONGON MUKHOPADHYAY, J.)
(DEEPAK ROSHAN, J.)
Jharkhand High Court, Ranchi
Dated the 10th June, 2024
Preet/N.A.F.R.
11 | P a g e
