Jharkhand High Court
Kanhaiya Ram vs The State Of Jharkhand on 23 October, 2024
Author: Ananda Sen
Bench: Ananda Sen
Cr. Appeal (D.B.) No. 484 of 2016
.........
(Against the judgment of conviction dated 11.04.2016 and order of
sentence dated 13.04.2016 passed by learned District and Additional
Sessions Judge-VIII, Jamshedpur, in Sessions Trial No.229 of 2014).
.........
Kanhaiya Ram, R/o Zone No.6, Near Gyandeep School, P.O. & P.S.-
Birsanagar, District- East Singhbhum
..... Appellant
Versus
The State of Jharkhand .... Respondent
.........
For the Appellant : Mrs. Lina Shakti, Amicus Curiae
For the State : Mrs. Nehala Sharmin, Spl. Public Prosecutor
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PRESENT
Sri Ananda Sen, J.
Sri Gautam Kumar Choudhary, J.
JUDGMENT
11/ 23.10.2024
By Court:
Since this criminal appeal has been taken up for final hearing, this
Interlocutory Application filed for suspending and sentence and to
release the appellant namely, Kanhaiya Ram on bail, is dismissed.
Cr. Appeal (D.B.) No. 484 of 2016
Heard, learned Amicus Curiae, Mrs. Lina Shakti and learned counsel
for the State, Mrs. Nehala Sharmin.
2. The instant criminal appeal is directed against the conviction of
the sole appellant under Sections 302 and 201 of the Indian Penal
Code vide judgment of conviction dated 11.04.2016 and order of
sentence dated 13.04.2016, passed by learned District and Additional
Sessions Judge-VIII, Jamshedpur, in Sessions Trial No.229 of 2014,
whereby he has been sentenced to undergo imprisonment for life and
fine of Rs.20,000/- under Sections 302 and R.I. for two years and fine
of Rs.3000/- under Section 201 of IPC.
3. Learned counsel for the appellant submits that solely on the basis
of the last seen theory, the appellant has been convicted in this case.
It is her contention that the last seen theory is a circumstance and in
absence of any corroboration, the appellant cannot be convicted.
Thus, she prays that this appellant can be acquitted.
4. Learned counsel for the State admits that there is no eye witness
to the said occurrence, but submits that from circumstantial evidence,
it is clear that it is only the appellant, who had committed the
murder. The relationship of the appellant and the deceased was not
cordial and all the witnesses have stated that the appellant at night
had taken the deceased along with him to the market. P.W.-6 had
also stated that the appellant and the deceased was last seen in the
market by him. The dead body was recovered in close proximity of
time from when the appellant was last seen with the deceased. Post
mortem report would also suggest that the death is homicidal and it
matches with the time when the appellant was last seen with the
deceased. On these grounds, she prays that this appellant be not
acquitted.
5. The F.I.R. was registered on 02.07.2013 on the basis of the
farbeyan of informant (Rani Sandilya), P.W.-1, who is the daughter of
the deceased. She stated that she is residing in the house of the
mother (deceased) along with her grand-mother. Her father had
expired. This appellant was having relationship with the deceased
and at one point of time they were living together. The deceased
thereafter, started living in the house of her mother. On the fateful
night about 08.00 P.M., the appellant came and on the pretext of
purchasing some materials from the market had taken the deceased
along with him and thereafter the deceased did not return. On the
next day, morning about 7.45 A.M., the dead body of the deceased
was found near Guriya Maidan, Rajkiya Prathmik Vidyalaya.
6. On the aforesaid fardbeyan, Telco (Birsanagar) P.S. Case No.270 of
2013 was registered under Sections 302/201 of the Indian Penal Code.
The police after investigation filed chargesheet against the appellant
under Sections 302/201 of the Indian Penal Code.
7. Thereafter the Court took cognizance and committed the case to
the Court of Sessions. As the appellant pleaded not guilty, charge
was framed under Sections 302/201 of IPC and he was put on trial.
Seven witnesses have been examined in this case, who are as
follows:-
P.W.-1 Rani Sandilya, informant
P.W.-2 Radhika Sandilya
P.W.-3 Shankar Sandilya
P.W.-4 Dr. Akhilesh Kumar Choudhary
P.W.-5 Kartik Sandilya
P.W.-6 Laxman Sandilya
P.W.-7 Navin Kumar Rai, Investigating Officer
8. The following documents were also exhibited by the
prosecution:-
Exhibit-1 signature of P.W.-1 on the inquest report.
Exhibit-1/1 signature of P.W.-6 on the inquest report
Exhibit-1/2 inquest report itself.
Exhibit-2 Fardbeyan along with signature of the informant
Exhibit-3 Postmortem report
Exhibit-4 Requisition of postmortem
9. Firstly, we decide as to whether this is a case of homicidal death
or not. To prove the homicidal death, the prosecution has examined
P.W.-4, who is the Doctor. He conducted the postmortem of the
deceased. The deceased was aged about 40 years. He found the
following antemortem injuries:-
"i. Wide spread contusion over front and left outer aspect neck and multiple
contusion with abrasion over top of it and over front and right side of the outer
neck.
ii. Contusion and multiple abrasion along both vesicular region and upper
chest along manubrium.
iii. Multiple abrasion under neath chin, tiny abrasion along posterior and
outer aspect of right lower arm, tiny abrasion over left forearm and lower
forearm.
On dissection (1) soft tissue under skin over front and right side of neck
grossly continues and soft tissue at subcutaneous level on left side contuse.
(2)Soft tissue along upper cervical vertebra on right side and pre-vertebra soft
tissue along lower cervical vertebra contused.
(3)Soft tissue along air way contused. No mechanical injuries could be noted
in an around genitalia.
The Doctor had opined that the injuries are antemortem in
nature and caused by hard and blunt substance. He also opined that
the death was due to asphyxia, as a result of pressure over the neck
and upper chest. Further opined that the medical evidence does not
suggest forceful penetration of hard and blunt substance inside
genitalia. Blood sample vaginal swab and slide prepared from
vaginal swab has been preserved as desired by I.O. The postmortem
report was marked as Exhibit-3.
Thus, we conclude that the death is homicidal death and the
prosecution has proved the same.
10. From perusal of the evidence and the prosecution case, the fact
which is undisputed is that there is no eye witness to the said
occurrence. The entire case is based on the circumstances.
11. Now, let us deal with the circumstantial evidence to ascertain
whether the prosecution has been able to prove all the circumstances
and complete the chain or not. One of the main circumstances is the
last seen theory.
P.W.-1 who is the daughter of the deceased and the informant
had stated that on 01.07.2013 at 08.00 P.M. when she was in her
grand-mother's house, this appellant came and on the pretext of
purchasing had taken the deceased to the market.
P.W.-2, also stated that in the same line that this appellant came
at night about 08.00 P.M. and had taken the deceased to the market.
P.W.-3 is the hearsay witness on this point.
P.W.-5 is the brother of the deceased had stated that on
01.07.2013, this appellant came and took the deceased along with
him. He stated that this appellant stated that they are going to the
market to purchased some materials.
P.W.-6 in paragraph- 1 stated that about 07.30 to 08.00 he had
seen the appellant along with the deceased at Birsa Nagar Market.
Thus, from the evidence of these witnesses, the prosecution has
been able to prove beyond doubt that this appellant at night had
taken the deceased along with him and they were seen in the market
together.
12. Next circumstance is about the relationship of the appellant and
the deceased. P.W.-6 stated that appellant and the deceased were
residing together as husband and wife. P.W.-1 also stated that the
appellant and the deceased were living together, but at the time of
occurrence, the deceased was residing in the house of the informant's
grand-mother. P.W.-2 and P.W.-3 have also supported the aforesaid
fact. Thus, the prosecution has been able to prove the circumstances
that this appellant and the deceased were living together and was
having a relationship.
13. Next circumstances, which needs to be considered is how cordial
was the relationship between the appellant and the deceased. P.W.-1
in paragraph 4 and P.W.-2 in paragraph 2 have stated that the
relationship of the appellant and the deceased was not cordial. The
appellant was not doing any work and was living on the earning of
the deceased, he used to snatch money from the deceased and
relationship was not cordial. Thus, the prosecution has been able to
prove that the relationship of the appellant and the deceased was not
cordial and the appellant was living on the earning of the deceased.
14. It is true that the last seen theory is considered as a weak piece of
evidence and stand alone cannot be used to convict any person. The
said theory needs additional evidence for corroboration. The
additional evidence may be the relationship with the deceased,
proximity of last seen and the recovery of the body etc. In this case,
we find that there are other circumstantial link and evidence to
support the last seen theory for conviction. The witnesses have
clearly stated that relationship of the appellant and the deceased was
not cordial. Further, the effectiveness of the last seen theory gets
strengthened and increases when it is coupled with the factor, such
as, the time of last sighting and the time when the dead body was
recovered. In this case, sometime, about 08.00 P.M. at night, the
appellant had taken the deceased with him, which is proved. It is also
proved from the evidence of P.W.-6 that the deceased and the
appellant was last seen in the market at night. Thereafter at 07.45
A.M. in the next morning, the dead body was recovered. The time
gap is minimum. Further from the postmortem report, we find that
Doctor has opined that death has taken place within 12-18 hours
approximately, this means the death was caused 12-18 hours prior to
the time of conducting the postmortem. The postmortem was
conducted at 11.00 A.M. on 02.07.2013. 12 to 18 hours from 02.07.2013
at 11.00 A.M. would be approximately 06.00 P.M. to 12.00 mid night,
on 01.07.2013. This also matches with the time period when the
appellant was with the deceased.
15. When all these circumstances have been proved, the burden now
shifts upon the accused, as he is required to provide a reasonable
explanation for the circumstances surrounding the death of the
deceased as he was last seen with the deceased. This can be
discharged by the leading defence evidence or by giving explanation
while getting his statement recorded under Section 313 of Cr.P.C.
While we go through the statement recorded under Section 313 of
Cr.P.C., we find that to each and every question and circumstances
put to him, he only denied the same by stating "I am unaware" or "I
am innocent" or "I have nothing to say". This is not proper discharge
of the burden, which is casted upon the accused in these type of
cases. These evasive replies are additional circumstance against him.
Thus, we find that the prosecution proved all the circumstances,
which only lead to the only conclusion that it is this appellant who
had committed the murder of the deceased.
16. Thus, we find that the prosecution has been able to prove the
guilt of the appellant beyond all reasonable doubt and the Trial Court
has correctly appreciated all the evidences and has convicted the
appellant and sentenced him. Accordingly, the instant Criminal
Appeal stands dismissed.
17. The judgment of conviction dated 11.04.2016 and order of
sentence dated 13.04.2016 passed by learned Additional Sessions
Judge-VIII, Jamshedpur in Session Trial No.229 of 2014 needs no
interference, thus, is affirmed.
18. We had requested Mrs. Lina Shakti, the learned counsel and
appointed her as learned Amicus Curiae to assist this Court. Considering
her assistance, we direct the Jharkhand High Court Legal Services
Committee to pay remuneration of Rs.7,500/- to Mrs. Lina Shakti, the
learned Amicus Curiae.
19. Let Trial Court Records along with a copy of this judgment be
sent to the concerned trial court forthwith.
(Ananda Sen, J.)
(Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated 23/10/2024
NAFR /R.S./ Cp 03.
