Jharkhand High Court
The State Of Jharkhand vs Markas Dahanga on 9 September, 2024
Author: Ananda Sen
Bench: Ananda Sen, Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
D. Ref. (D.B.) No. 1 of 2023
The State of Jharkhand .... .... .... Appellant
Versus
1. Markas Dahanga, S/o Masidas Dahanga
2. Kemba Dahanga @ Bilai, S/o Sri Vikram Dahanga
3. IIiyas Dahanga, S/o Masidas Dahanga
4. Daud Dahanga, S/o Junas Dahanga
5. IIiyas Dahanga @ Banka Baku, aged about 31 years, S/o Markas Dahanga
All resident of village - Pondenger, P.O + P.S. - Bandgaon, District- West
Singhbhum, Jharkhand. .... .... .... Respondents
With
Cr. Appeal (D.B.) No. 490 of 2023
1. Markas Dahanga, aged about 32 years, S/o Masidas Dahanga
2. Kemba Dahanga @ Bilai, aged about 27 years, S/o Sri Vikram Dahanga
3. IIiyas Dahanga, aged about 24 years, S/o Masidas Dahanga
4. IIiyas Dahanga @ Banka Baku, aged about 31 years, S/o Markas Dahanga
All resident of village - Pondenger, P.O + P.S. - Bandgaon, District- West
Singhbhum, Jharkhand. .... .... .... Appellants
Versus
The State of Jharkhand .... .... .... Respondent
With
Cr. Appeal (D.B.) No. 634 of 2023
Daud Dahanga, aged about 35 years, S/o Junas Dahanga, R/o village-
Pondenger, P.O. + P.S.- Bandgaon, District West Singhbhum
.... .... .... Appellants
Versus
The State of Jharkhand .... .... .... Respondent
CORAM: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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For the Appellant : Mr. Jitendra Shankar Singh, Advocate
: Mr. Randhir Kumar, Advocate
: Ms. Shabina Perween, Advocate
Mr. Suraj Kumar, Advocate
Mr. Subhas Kangari, Advocate
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Mr. Gourav Manikesh, Advocate
Ms. Sumitra Kumari, Advocate
Mrs. Rahul Kumar, Amicus.
For the State : Mr. Pankaj Kumar, P.P.
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JUDGMENT
By Court Heard the learned counsel for the parties as well as amicus curiae.
2. In this case, the appellants of Cr. Appeal (DB) Nos. 490 and 634 of
2023 have been convicted under Sections 302, 201 r/w Section 120B of the
Indian Penal Code in connection with ST Case No. 229 of 2022 by the learned
Sessions Judge, West Singhbhum at Chaibasa and they have been awarded
the death sentence.
3. The Death Reference Case No. 01/2023 has come up before us to
confirm the death sentence.
4. We have gone through the entire evidences including the depositions,
exhibits and arrest memo and the inquest report.
5. In this case, the FIR is at the instance of P.W.3- Subodh Singh
Munda, who stated that he received information from one Bahange Dahanga
regarding missing of her father Salim Dahanga and mother- Belani Dahanga
and younger sister- Rahil Dahanga. On the basis of said information, a sanha
(station diary) was recorded being Sanha No. 11/2021 dated 9.11.2021. He
received secret information regarding involvement of these appellants in the
crime. Then he called these appellants at Pondengra, Bangaon Police Station
for enquiry. These appellants disclosed that two-three months ago, the
daughter of Markas Dahanga died and then he came to the accused Vidya
Simon Toppo to know the reason of her death, when he was told that the
residents who are living in the southern side of his house have killed his
daughter by administering poison. The appellants were waiting to take revenge
and in course of taking revenge, he contacted the village Munda and also
disclosed about the facts stated by Simon Topno. It has further been
mentioned that the appellants have planned to commit murder of the entire
family and thus in the night they entered the house of Salim Dahanga and after
consuming hariya, they attacked them with axe and other weapons and
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committed their murder. As per plan, they buried the dead body near Karo
river. On the basis of the self statement, the FIR was registered.
6. The FIR was registered on 10.11.2021 at about 23:05 hours. From the
fardbeyan, we find that the self statement was recorded on 10.11.2021 at about
15:55 hours.
7. From the evidence led by the prosecution and the documents
exhibited, it is clear that there is no eye witness in the entire occurrence and no
one had seen these appellants also in the company of the deceased. The only
materials to implicate these appellants are the alleged confessional statement
of the accused before the Police and recovery of the murder weapon and the
dead body was on the basis of the alleged confessional statement.
8. Now, a very important and pertinent question arises whether the
prosecution has established that there was at all any confessional statement,
which led to recovery which can come within the purview of Section 27 of the
Evidence Act or not.
9. The list of dates and time will demolish the entire case of the
prosecution. The fardbeyan was recorded on 10.11.2021 at 15:55 hours, in
which informant has clearly stated that he had brought and called these three
appellants at the Police Station, wherein before him they disclosed about the
commission of offence and concealing the dead body and other materials. This
admission or confession is before the police, but surprisingly no F.I.R. was
registered at that point of time. The informant clearly states that the missing
report was sent but the same was not converted into the F.I.R. Thus, it is clear
that before the F.I.R. was registered, the alleged confessional statement was
recorded which is not the proper procedure. Recording of the confessional
statement is a part of investigation and unless an F.I.R. is registered no
investigation can proceed.
10. Further, these appellants were arrested on 10.11.2021 between
20:50 hours to 21:25 hours, which is apparent from the arrest memos and it is
alleged that thereafter only the confessional statement was recorded, but
surprisingly the bodies and other materials were recovered between 13:40
hours to 15:10 hours, on 10.11.2021 which is established from the inquest
report. Thus, these bodies were recovered prior to the confessional statement,
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so recorded. This facts clearly demolish the prosecution case and the recovery
cannot be said to be based on the confessional statement to attract Section 27
of the Evidence Act. Save and except these materials, there is no material
against these appellants, which fact has also been admitted by the prosecution
and also by the Amicus Curiae.
11. Thus, we find that bodies were recovered between 13:40 to 15:10
hours, but surprisingly even the fardbeyan was not recorded when these
bodies were recovered as it is apparent from the self-statement, which led to
the fardbeyan, is that the same was recorded at 15:55 hours. Further as
mentioned earlier, the recovery of body and weapon were prior to the
confession, which was recorded. Thus, it is quite clear that the recovery of the
dead body which the prosecution tries to establish was in terms of Section 27
of the Evidence Act cannot be sustained. The recovery of the dead bodies
admittedly preceded the disclosure. Thus, the prosecution case falls like a
house of cards, as the entire case is built on the aforesaid confessional
statement, leading to recovery by the prosecution.
12 Thus, these appeals stand allowed and the judgment of conviction
dated 13.2.2023 as well as order of sentence dated 15.2.2023 are set aside
and the Death Reference is also answered in negative.
(ANANDA SEN, J.)
(GAUTAM KUMAR CHOUDHARY, J.)
Jharkhand High Court, Ranchi.
Dated: the 09.09.2024.
NAFR/Anu-pawan/Cp.-3.
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