Jharkhand High Court
Bihari Singh @ Arun Singh Son Of Chandra ... vs The State Of Jharkhand on 21 October, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Criminal Appeal (D.B.) No. 294 of 2014
With
Criminal Appeal (D.B.) No. 546 of 2013
[Arising out of judgment of conviction dated 18.03.2013 and order of
sentence dated 21.03.2013 passed by learned Additional Judicial
Commissioner 1st cum Special Judge, C.B.I. (other than A.H.D.), Ranchi in
Sessions Trial No. 553 of 2008 / Sessions Trial No. 87 of 2011]
Criminal Appeal (D.B.) No. 294 of 2014
Bihari Singh @ Arun Singh son of Chandra Deo Singh, resident of Village
Kundouli, P.O. & P.S. Chhatarpur, District Palamau
.... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
With
Criminal Appeal (D.B.) No. 546 of 2013
Kamta Singh son of Atm Deo Singh, resident of Village Kundauli, P.O. & P.S.
Chhatarpur, District Palamau .... .... .... Appellant
--Versus--
The State of Jharkhand through C.B.I. .... .... .... Respondent
For the Appellant: Mr. Anshu Dubey, Advocate
[In Criminal Appeal (D.B.) No. 294 of 2014]
Mr. A.K. Kashyap, Sr. Advocate
Ms. Leena Shakti, Advocate
[In Criminal Appeal (D.B.) No. 546 of 2013]
For the State : Ms. Vandana Bharti, A.P.P.
For the C.B.I. : Mr. Anil Kumar, ASGI
Ms. Chandana Kumari, AC to ASGI
Mr. Kumar Swapnil, AC to ASGI
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
-----
JUDGMENT
Reserved on: 14.10.2024 Pronounced On: 21.10.2024
Per Gautam Kumar Choudhary, J. Both these criminal appeals arise out of
common judgment of conviction and sentence passed under Sections 396 and
201/34 of the IPC. Both these appeals have been heard together and will be
disposed of by common judgment.
2. Prosecution case in brief is about a road heist in which the deceased-
Lalit Mehta was murdered and was robbed of his belongings and after this his
dead body was disposed in the Jungle so as to cause disappearance of the
evidence.
3. Initially Vishrampur P.S. Case No. 71/2008 was registered against
unknown miscreants on the basis of the statement of the Chowkidar on
15.05.2008, after the dead body of an unknown person was found in a Jungle
area by the police patrolling party. Face of the deceased was smashed and the
neck appeared to have been strangulated by a leather belt.
4. Later on, investigation was handed over to CBI, Lucknow Branch vide
notification dated 19.06.2008 and accordingly, R.C. 3(S)/2008 Lucknow was
registered. CBI submitted two charges sheets, both under Sections 396, 201/34
of the IPC against four accused persons, who were put on trial. Learned trial
Court acquitted accused Mohan Singh @ Guddu Singh and Dilip Singh while
convicting the appellants who are in appeal before this Court.
5. Altogether 48 witnesses have been examined on behalf of the
prosecution and relevant documents including seizure lists of motorcycle
parts, post-mortem examination report, photographs of looted motorcycle,
inquest report, fardbeyan, confessional statement under Section of the 164
Cr.P.C. of the appellant- Kamta Singh have been adduced into evidence and
marked as Exhibit 1 - 29/1. Sleeper, piece of belt of deceased, pieces of
stones, 17 items of motorcycle parts and empty cartoon of Nokia mobile sets
was produced and marked as material Exhibit I - XI.
ARUGMENT ON BEHALF OF APPELLANT- KAMTA SINGH
6. It is argued by the learned counsel on behalf of the appellant- Kamta
Singh that learned trial Court has mainly relied on Exhibit 29 and 29/1 which
is the confessional statement of Kamta Singh before the Special Judicial
Magistrate, CBI made under Section 164 of Cr.P.C. It is argued by the learned
counsel that there has been violation of the provision of Section 164 (4) of the
Cr.P.C, as the mandate for recording it in the manner provided under Section
281 of the Cr.P.C. has not been followed. In the said confessional statement
made by this appellant, the requisite certificate to be given by the Magistrate
that accused was not bound to make a confession, has not been given. Absence
of such a certificate renders the confessional statement inadmissible into
evidence. Reliance in this regard is placed on the authority Dhanajaya Reddy
Versus State of Karnataka, (2001) 4 SCC 9.
7. The second line of argument advanced on behalf of the appellant-
Kamta Singh is that recovery of the looted motorcycle parts has been made
from P.W. 25- Birendra Ram and he has not stated that this appellant had
handed over the motorcycle to him. He has specifically referred to Raju Singh
as the person who has brought the motorcycle and given to him. Wife of this
witness (P.W. 26) has named Raju Singh and Bihari Singh, who brought the
motorcycle and not this appellant. In this way, there is no legal evidence
against appellant- Kamta Singh.
ARUGMENT ON BEHALF OF APPELLANT- BIHARI SINGH
8. It is argued by the learned counsel that the leftwing extremist
organization of MCC had called for a Band and in the intervening night of 14th
- 15th May, 2008, deceased is said to have been killed in remote forest area. In
such a circumstance, deceased appears to have been victim of extremist
violence for which the appellants have been falsely implicated. No looted
article has been recovered from this appellant. There is considerable time gap
between the so-called disclosure statement made by this appellant leading to
recovery and the date when the incidence took place.
ARGUMENT ON BEHALF OF CBI
9. Learned ASGI, Mr. Anil Kumar has defended the judgment of
conviction and sentence. It is argued by the learned counsel that as far as
appellant- Kamta Singh is concerned, there is not only confessional statement
made by the appellant under Section 164 of the Cr.P.C. before the Magistrate,
but also there is evidence that the appellant was involved in the disposal of the
looted motorcycle. He had come along with Raju Singh and Bihari Singh to
the house of Dwarika Thakur (P.W. 24) to keep the looted motorcycle. P.W. 24
is categorical in his statement that immediately after the incidence, in the
intervening night of 14/15.05.2008, appellant- Kamta Singh has come to the
house of Dwarika Thakur to entrust the looted motorcycle and helmet with
him. It is argued that even if the confessional statement of this appellant is not
accepted on technical reasons, still the evidence of P.W. 24 that soon after the
incidence, the appellant had come with the looted motorcycle to entrust the
same with P.W. 24, is a circumstance from which an inference of guilt of the
appellant can be drawn. Immediately after the incidence, Kamta Singh
absconded with the co-accused- Bihari Singh and went to Chennai.
P.W. 21, who is father of Kamta Singh, has admitted in his evidence that
immediately after the incidence, he was absconding from his home.
10. With regard to Bihari Singh, it is argued that apart from the testimony of
P.W. 24 and P.W. 25, who have stated that the looted motorcycle was entrusted
to them by this appellant, there is disclosure statement (Exhibit 19), four
blood-stained stones and a piece of belt of deceased etc., were recovered in
presence of this appellant.
FINDINGS
11. Criminal cases mirror social realities and this case is not an exception
which shows the perils of commuting in Jungle areas after sun set. Arguments
raised at Bar in these appeals, do not assail the homicidal death of Lalit Mehta,
who was on way to Daltonganj by his motorcycle bearing registration no.JH
03B 9264 on 14.05.2008. His homicidal death by strangulation has been
proved by the post-mortem examination report (Exhibit 3). P.W. 8, P.W. 9 and
P.W. 10 have deposed that a leather belt was tied round the neck.
12. With regard to the author of crime, prosecution case hinges on the
judicial confession (Exhibit 29 & 29/1) against Kamta Singh and testimony
of P.W. 24 that he had come with co-accused to deliver the looted motorcycle
immediately after the incidence. Appellant- Kamta Singh after the incidence
absconded shall be evident from the testimony of his father (P.W. 21) who has
deposed that when police came looking for his son in connection with Lalit
Mehta murder case, he informed them that he had gone Chennai to earn his
livelihood and when he will return from there, he will send him to police
station.
13. Evidence against Bihari Singh is disclosure statement (Exhibit 19) on
the basis of which the belt of the deceased, the stones which were used as
weapon of offence, the identity card and purse of the deceased were
recovered. Further, P.W. 24 and P.W. 25 have consistently deposed that after
the incidence, the stolen motorcycle was entrusted by the appellants to them,
recovery part has also been proved by Surya Deo Singh (P.W. 33).
14. Prosecution has established that looted motorcycle was recovered from
the house of Birendra Ram (P.W. 25). Recovery of motorcycle is corroborated
by the seizure list witnesses P.W. 12 and P.W. 13.
15. As discussed above, prosecution has succeeded to establish that
immediately after the incidence of road robbery, looted motorcycle and helmet
of the deceased was first brought to P.W. 24 who was a barber and had as
saloon in Chattarpur. He specifically named both these appellants and Raju
Singh to have come with a red colour motorcycle at around 11-12 O' clock at
night. Raju Singh asked him to keep the motorcycle and when he refused, they
threatened him with life. They also handed over a helmet with the motorcycle
which was burnt, destroyed and thrown it into a drain by him. On the next day,
at 6 O' clock in the evening, Raju Singh took away the motorcycle. P.W. 24
showed the place where the helmet was disposed and the police recovered
parts of the helmet from the drain, seizure list of which was produced and
marked as Exhibit 5. He has identified the part of helmet (material Exhibit
VIII). This part of testimony of P.W. 24 remains undemolished in the cross-
examination. The fact that soon after the incidence helmet of the deceased was
recovered at the instance of P.W. 24, lends credence to his testimony that it
was entrusted with P.W. 24 after the incidence by the appellants. This recovery
has also been corroborated by P.W. 48 (para 3), who is the police officer in
whose presence the part of helmet was recovered on pointing out by P.W. 24.
16. P.W. 25, as discussed above, is the person from whose house the looted
motorcycle in a dismantled condition was recovered. He has deposed that Raju
Singh and Bihari Singh had come to his house with a motorcycle at night on
21.05.2008 and kept it there. The left indicator was damaged and the dicky of
the motorcycle had also scratch mark, from which it appeared that it had met
with an accident. On his instance, the motorcycle was kept in his house. He
has further deposed that as from the get-up of the motorcycle, it appeared to
have been looted and Raju Singh has left it in his house for a week therefore,
he dismantled the motorcycle. He has proved the seizure list of motorcycle
parts (Exhibit 7) and the motorcycle parts were proved as material Exhibit IX.
This part of his testimony has been corroborated by his wife (P.W. 26) and
also by the police officer (P.W. 42), who seized the motorcycle parts from the
house of P.W. 25. P.W. 26 has added that in order to conceal the looted
motorcycle parts, a wall was also constructed which was broken by the police
to recover it.
17. On the disclosure statement (Exhibit 19) made by Bihari Singh, the
driving license of the deceased was seized and the seizure list was made
(Exhibit 12). Four blood-stained stones and the piece of belt were recovered
on the basis of disclosure statement of Bihari Singh. Bihari Singh absconded
after the incidence which is proved by his train tickets from Daltonganj to
Jabalpur and other places (Exhibit 9 - 9/2). P.W. 39 has deposed that during
investigation, the confessional statement of Bihari Singh was recorded on
29.06.2008 and on its basis, broken parts of belt and blood-stained stone were
seized.
18. This is a case where the crime has been committed at night in jungle
area when the motorcycle of the deceased was looted and the deceased was
murdered in cold blood by strangulating him. By the very nature, time and
place of occurrence, any direct eye witness to the incidence cannot be
practicably forthcoming and the prosecution relies on circumstantial evidence
to prove the charge against the appellants. Provisions of Evidence Act are
wide enough to meet such cases where there is no direct eye witness to the
incidence as to ask for direct evidence in such cases, will cast an
unconscionable burden on the prosecution to prove the impossible. Definition
of 'Proved' under Section 3 of the Evidence Act postulates a prudent man's
test. It has been held in Collector of Custom, Madra & Others Vs. D.
Bhoormal, (1974) 2 SCC 544
"30. It cannot be disputed that in proceedings for imposing penalties
under clause (8) of Section 167, to which Section 178-A does not apply,
the burden of proving that the goods are smuggled goods, is on the
Department. This is a fundamental rule relating to proof in all criminal or
quasi-criminal proceedings, where there is no statutory provision to the
contrary. But, in appreciating its scope and the nature of the onus cast by
it, we must pay due regard to other kindred principles, no less
fundamental, of universal application. One of them is that the prosecution
or the Department is not required to prove its case with mathematical
precision to a demonstrable degree; for, in all human affairs absolute
certainty is a myth, and -- as Prof. Brett felicitously puts it -- "all
exactness is a fake". El Dorado of absolute proof being unattainable, the
law accepts for it probability as a working substitute in this work-a-day
world. The law does not require the prosecution to prove the impossible.
All that it requires is the establishment of such a degree of probability that
a prudent man may, on its basis, believe in the existence of the fact in
issue. Thus, legal proof is not necessarily perfect proof; often it is nothing
more than a prudent man's estimate as to the probabilities of the case".
19. There is no direct eye witness to the offence and the Prosecution relies
on circumstantial evidence which has been duly proved by witnesses. As far as
Kamta Singh is concerned, even if the judicial confession made by him is
discarded for want of certification as required under Section 164(4) of the
Cr.P.C., there is evidence that soon after the incidence on the said night, he
along with other co-accused persons had gone to the house of P.W. 24 to
entrust him with the looted motorcycle and helmet which was kept in his
house for a night and taken away by Raju Singh in the next morning. This part
of the prosecution case is established by the recovery of the helmet of the
deceased on the pointing out by P.W. 24. There is no reason to doubt the
testimony of P.W. 24, who is an independent witness and there is nothing on
record to suggest that he had any grudge to falsely implicate appellant- Kamta
Singh. Appellant- Kamta Singh was confronted by this evidence in question
no. 15 in the statement under Section 313 of the Cr.P.C. No explanation
whatsoever has been offered by the appellant. Immediately after the incidence,
he absconded as testified by his father as he went to Chennai and other places.
20. With regard to Bihari Singh, P.W. 24 and P.W. 25 have consistently
stated that he had entrusted to them the motorcycle looted immediately after
the incidence. Attempt to conceal the looted motorcycle in the house of P.W.
24 has also come in evidence as discussed above. Further on his disclosure
statement of Bihari Singh (Exhibit 19) part of the broken belt of the deceased,
identity card of the deceased were seized.
21. Conduct of the appellants immediately after the incidence are relevant
under Section 8 of the Evidence Act and absence of any explanation on his
part, is an additional circumstance which leads to a logical interference that
appellants were the author of crime along with his cohorts. The very fact that
the appellants were found in possession of the looted articles immediately
after the incidence, is sufficient to draw a presumption of fact under Section
114 of the Evidence Act that it was the appellants who were the authors of the
crime and none-else. Section 114 of the Evidence Act reads as under.
Court may presume existence of certain facts.--The Court may presume the
existence of any fact which it thinks likely to have happened, regard being had
to the common course of natural events, human conduct and public and private
business, in their relation to the facts of the particular case.
Illustration appended to this Section is not exhaustive and the Courts can in
appropriate cases draw presumption of facts, when the facts of the case are such
that there cannot be any evidence on a fact in issue.
It has been held in Ronny @ Ronald James Alwaris & Others v. State
of Maharashtra, (1998) 3 SCC 625 :
"30. Apropos the recovery of articles belonging to the Ohol family from
the possession of the appellants soon after the robbery and the murder of
the deceased (Mr Mohan Ohol, Mrs Ruhi Ohol and Mr Rohan Ohol)
which possession has remained unexplained by the appellants, the
presumption under Illustration (a) of Section 114 of the Evidence Act will
be attracted. It needs no discussion to conclude that the murder and the
robbery of the articles were found to be part of the same transaction. The
irresistible conclusion would, therefore, be that the appellants and no one
else had committed the three murders and the robbery".
22. In the present case, apart from the evidence that the appellants had
entrusted the looted article to the P.W. 24, there is evidence of recovery on the
basis of disclosure statement of the Appellant- Bihari Singh. All these
evidences along with the extra judicial confession of Bihari Singh made to
P.W. 33 and Chaturgun Bhuiyan lead to irresistible conclusion that the
appellants after committing robbery had committed the murder of the
deceased Lalit Mehta, and in order to conceal his dead body, disposed it in the
jungle area. Both of them absconded after the crime which is a relevant
circumstance under Section 8 of the Evidence Act. There is no explanation
offered by the appellants to these incriminating evidence under Section 313 of
the Cr.P.C.
I do not find any infirmity in the judgment of conviction and sentence
which is accordingly affirmed.
Criminal Appeals stand dismissed.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned along
with a copy of this judgment.
(Gautam Kumar Choudhary, J.)
Ananda Sen, J. I agree.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated, 21st October, 2024
AFR/Anit
