Jharkhand High Court
Paikerai Tubid S/O Krishna Tubid vs The State Of Jharkhand on 18 September, 2024
CRIMINAL APPEAL (DB) NO. 1014 OF 2015
WITH
CRIMINAL APPEAL (DB) NO. 199 OF 2016
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AGAINST THE JUDGMENT OF CONVICTION
DATED 28TH AUGUST 2015 AND ORDER OF
SENTENCE DATED 31ST AUGUST, 2015
PASSED BY ADDITIONAL SESSIONS JUDGE-I,
WEST SINGHBHUM, CHAIBASA IN SESSIONS
TRIAL NO. 214 OF 2014.
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Paikerai Tubid S/o Krishna Tubid, R/o Village Jojohatu, PO Roro, PS
Muffasil, District West Singhbhum.
... Appellant [in Cr. Appeal (DB) No.1014 of 2015]
Govind Hessa @ Govind Hesla son of Jaipal Hessa, resident of
Village Sundi Sursiya, PO and PS Tonto, District West Singhbhum.
... Appellant [in Cr. Appeal (DB) No.199 of 2016]
-versus-
The State of Jharkhand ... Respondent
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For the Appellants : Mrs. Rashmi Kumar, Advocate
Ms. Nupur Singh, Advocate
Mr. Alok Kumar Verma, Advocate
Mr. Rajesh Kumar Mahtha, Advocate
For the Respondent : Ms. Nehala Sharmin, Spl. P.P.
Mr. Saket Kumar, A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
By Court Heard learned counsel for the appellants and learned counsel
for the State.
2. The appellants have preferred both these appeals against the
judgment of conviction dated 28th August, 2015 and order of sentence dated
31st August, 2015 passed by the Additional Sessions Judge-I, West
Singhbhum, Chaibasa in Sessions Trial No. 214 of 2014, arising out of Tonto
Police Station Case No.16 of 2014 corresponding to G.R. No.341 of 2014,
whereby and whereunder, the appellants have been convicted for offences
under Sections 302/34, 201/34, 394/34 and Section 411/34 of the Indian
Penal Code and have been sentenced to undergo rigorous imprisonment for
life and fine of Rs.4,000/- for committing the offence punishable under
Sections 302/34 of the Indian Penal Code; rigorous imprisonment for two
Cr. Appeal (DB) 1014 of 2015
WITH
Cr. Appeal (DB) 199 of 2016
years and fine of Rs.1000/- for the offence punishable under Sections
201/34 of the Indian Penal Code; rigorous imprisonment for 5 (five) years
and fine of Rs.1,000/- for the offence under Section 394/34 of the Indian
Penal Code; and rigorous imprisonment for two years for the offence
punishable under Section 411/34 of the Indian Penal Code and in default of
payment of fine, they have been sentenced to further undergo simple
imprisonment for three months.
3. Learned counsel appearing on behalf of the appellants submit
that there is no material and evidence to convict the appellants. It is their
contention that there is no eye witness to the occurrence and the
prosecution has miserably failed to bring home the charges against the
appellants. They submit that the case of the prosecution is based on
circumstances and the prosecution has failed to prove the chain of
circumstances so as to hold the appellants guilty of the offence. They submit
that the prosecution has also failed to prove the motive behind the offence.
P.W.4 and P.W.5, parents of the deceased, have stated that there was
friendly relation amongst the appellants and the deceased and they used to
roam together and there was no dispute between them. They argue that the
prosecution has miserably failed to prove its case beyond all reasonable
doubts. Thus, they pray that the appellants be acquitted as it is a fit case for
acquittal of the appellants.
4. Learned counsel appearing for the State submits that the Trial
Court has rightly convicted the appellants on the basis of the evidence
available on record. They submit that the prosecution has been able to prove
the chain of circumstances, inasmuch as it has come in evidence that both
these appellants had come to the house of the deceased and they took the
deceased with them, whereafter the deceased did not return. Thereafter the
dead body of the deceased was recovered from a well. Learned counsel for
the State submits that the defence has not been able to put forth any rebuttal
to the prosecution evidence, thus, the learned Trial Court has rightly
convicted the appellants.
5. The appellants have been charged and convicted under
Sections 302/34, 201/34, 394/34 and Section 411/34 of the Indian Penal
Code. The prosecution case is based on the fardbeyan dated 04.06.2014 at
12.30 Hrs. of the informant- Pachai Hessa, resident of Village Hessa,
Cr. Appeal (DB) 1014 of 2015
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Cr. Appeal (DB) 199 of 2016
Surniya, Police Station Tonto, District West Singhbhum, wherein it has been
narrated that on the day before, i.e on 03.06.2014 at about 7.30 P.M his co-
villagers Dakuwa Shankar Hessa and Charan Hessa came to his home and
told that when they were passing through the well of Shankar Hessa, they
experienced foul smell emitted from the well. They went near the well and
saw a dead body of one male floating inside the well. Shankar Hessa had
got this information through Charan Hessa. After receiving such information,
the informant along with the co-villagers went to Mahaburu P and saw the
dead body of one male person floating in the well of Shankar Hessa. As it
was night, information could not be given to the police. The informant further
narrated that on 04.06.2014, he informed the police station, upon which the
police came and took out the dead body from the well. The head and legs of
the dead body were tied with stone. For identifying the dead body, the
people of adjacent villages also came there but no one could identify the
unknown dead body. The informant further alleged that after being killed by
unknown criminals, the dead body was concealed in the well.
6. On the basis of the aforesaid fardbeyan of the informant, Tonto
Police Station Case No.16 of 2014 was registered for offences under
Sections 302/201/34 of the Indian Penal Code against unknown.
Police, on completion of investigation, submitted charge sheet
against the appellants under Sections 394/302/201/34/411 of the Indian
Penal Code. Subsequently, cognizance of the offence was taken and
charges were framed for offences under Sections 302/34, 201/34, 394/34
and 411/34 of the Indian Penal Code. The case was committed to the Court
of Sessions for trial.
7. To bring home the charges, the prosecution had examined 12
(twelve) witnesses, namely P.W.1 Shankar Hessa, P.W.2 Charan Hessa,
P.W.3 Pachai Hessa, P.W.4 Mata Dorai Buru, P.W.5 Phulmani Dorai Buru,
P.W.6 Turam Hessa, P.W.7 Dr. Amrendra Nath Dey, P.W.8 Damu Sundi,
P.W.9 Arjun Hessa, P.W.10 Gajendra Prasad Singh, P.W.11 Prabhu Dhan
Topno, P.W.12 Ghansa Banra.
The prosecution also produced following documents to
substantiate its case, which were marked exhibits:-
Ext.1 Signature of Shankar Hessa on the Inquest Report
Ext. 1/1 Signature of Pachai Hessa on the Inquest Report
Cr. Appeal (DB) 1014 of 2015
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Cr. Appeal (DB) 199 of 2016
Ext. 1/2 Inquest Report
Ext. 2 Signature of Shankar Hessa on the Fardbeyan
Ext.2/1 Signature of Pachai Hessa on the Fardbeyan
Ext. 2/2 Fardbeyan
Ext. 2/3 Endorsement made on the Fardbeyan
Ext. 3 Postmortem Report
Ext.4 Formal First Information Report
Ext. 5 Confessional Statement of Govind Hessa
Ext.5/1 Confessional Statement of Paikarai Tubid
Ext. 6 Seizure List
Ext. 7 Signature of Ghansa Banra on the Seizure List
One Hero Honda Splendor Motorcycle having registration No.
JH-06E-7046 seized during investigation was produced as material exhibit
and was marked as Material Exhibit I.
8. P.W.1, Shankar Hessa deposed that in his well the dead body
was found and information about the same was given to him by Charan
Hassa. He has proved his signature on the inquest report and fardbeyan,
which were marked as Exhibit 1 and Exhibit 2 respectively.
P.W.2, Charan Hessa deposed that he saw the dead body in
the well of Shankar Hessa.
P.W.3 Pachai Hessa is the informant of this case. He deposed
that he saw the dead body in the well of Shankar Hessa. He has stated
Dakua being informed by Charan Hessa, had informed him that a dead body
was lying in the well of Shankar Hessa. Next morning he went to the police
station and informed the same. Police had taken out the dead body. He also
stated that police had recorded his fardbeyan. He has proved his signature
on the inquest report and fardbeyan, which were marked as Exhibit 1/1 and
Exhibit 2/1 respectively.
P.W.4 Mata Dorai Buru, He is the father of Pandu Dorai Buru
(deceased). He deposed that on 31.05.2014 at 1.30 P.M, Govind Hessa and
Pakerai Tubid (appellants) came to his home and they went from there with
his son in Hero Honda Splendor motorcycle. His son was wearing jeans
pant, Sandal and socks. Thereafter his son did not return. When he went to
the house of Govind Hessa and Pakerai Tubid, they were also not at home.
He further deposed that on the following week when he went to Sundi
Surniya, Arsi Tuntiya informed him that motorcycle was driven by Pakerai
and his son was sitting in the middle and Govind Hessa was sitting in rear.
Cr. Appeal (DB) 1014 of 2015
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Cr. Appeal (DB) 199 of 2016
He told that Govind Hessa took him to his house and what happen thereafter
he does not know. In his cross examination he has stated that there was
friendly relationship between his son and the appellants and there was no
dispute between them.
P.W.5, Phulmani Dorai Buru, is the mother of Pandu Dorai Buru
(deceased). She deposed in the same line as P.W.4. She also did not
whisper about existence of any enmity amongst them.
P.W.6, Turam Hessa, has stated that he had seen the dead
body being taken out from the well of Dakuwa and stone being tied with cloth
in his neck and head.
P.W.7 Dr. Amrendra Nath Dey is the doctor, who had conducted
the Postmortem of the dead body of the deceased. He found the following:-
External: - Rigor mortis present in all four limb. Whole
body was swollen at the verge of putrefaction. Tongue
partially protruded. Eye exposed. Bruise around neck and
behind ears. Trachea rings broken.
Internal:- Trachea Rings broken. Echayomysis on
Trachea and mucosa lungs congested. Heart full of
blood, stomach empty, intestine NAD, spleen NAD, Lever
congested. Cause of death Asphyxia cause by throttling.
Time since death 12 to 48 hours.
He has proved the Postmortem Report which was marked as
Exhibit 3.
P.W. 8 Damu Sundi deposed that the dead body was found
from the well of Shankar Hessa and Dakwa Hessa.
P.W. 9, Arjun Hessa, is a hearsay witness.
P.W.10, Gajendra Prasad Singh is the Sub Inspector of Police.
He had produced the seized Hero Honda Splendor motorcycle having
registration no. JH-06E - 7046 in the court, which was marked as Material
Exhibit I.
P.W.11, Prabhu Dhan Topno is the Investigating officer of this
case. He has proved the fardbeyan which was marked as Exhibit 2/2. He
has also proved the endorsement on the fardbeyan in the handwriting and
signature of Officer-incharge S.B.Choudhary, which was marked as Exhibit
3. He has proved the formal First information Report and Inquest Report,
which was marked as Exhibit 4 and 1/2 respectively. He has also proved the
Cr. Appeal (DB) 1014 of 2015
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Cr. Appeal (DB) 199 of 2016
confessional statement of Govind Hessa and Pakerai Tubid, which were
marked as Exhibit 5 and Exhibit 5/1 respectively. He has proved the seizure
list of splendor motorcycle No. JH-06E-7046, which was marked as Exhibit
6.
P.W.12, Ghansa Banra was declared Hostile. He has proved his
signature on the seizure list, which was marked as Exhibit 7.
9. After closure of prosecution evidence, the statement of the
appellants were recorded under Section 313 Cr.P.C wherein they claimed to
be innocent.
10. The Trial Court, after closure of evidence and upon hearing the
arguments, by the judgment of conviction dated 28th August, 2015 and order
of sentence dated 31st August, 2015 has convicted and sentenced the
appellants in the manner as stated in paragraph 2 hereinbefore.
11. After hearing the parties, we have gone through the records of
this case. We find that the prosecution case is based entirely on
circumstantial evidence. From the evidence of the prosecution it is gathered
that the chain of circumstances started with the recovery of the dead body
from the well of Shankar Hessa. The parents of the deceased have stated
that the appellants came to their home and took their son (deceased) with
them. However, we find that save and except the statement of the parents of
the deceased, there is nothing in the evidence that immediately before the
recovery of the dead body, or at any time soon before the death, the
appellants were seen with the deceased.
12. Further, from the evidence of the parents of the deceased, i.e.,
P.W.4 and P.W.5, we find that the parents have uniformly stated in their
cross-examination that the appellants and the deceased had friendly
relations and they used to roam together and have feasts very often. There
was no dispute among them. The prosecution has failed to bring any piece
of evidence showing motive of the appellants for committing the offence. The
prosecution has also failed to bring on record any clue regarding enmity
between the appellants and the deceased.
13. The Hon'ble Supreme Court in the case of Sharad
Birdhichand Sarda versus State of Maharashtra, reported in (1984) 4
SCC 116, has laid down five golden principles for a case based on
circumstantial evidence, at paragraph 153 thereof, which reads as follows:-
Cr. Appeal (DB) 1014 of 2015
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Cr. Appeal (DB) 199 of 2016
"153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established. It may be noted
here that this Court indicated that the circumstances
concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal
distinction between "may be proved" and "must be or
should be proved" as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra19 where the
observations were made: [SCC para 19, p. 807: SCC (Cri) p.
1047] "Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court can
convict and the mental distance between 'may be' and
'must be' is long and divides vague conjectures from sure
conclusions."
(2) 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,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) 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."
14. The Hon'ble Supreme Court, in the case of Indrajit Das versus
The State of Tripura reported in 2023 SCC OnLine SC 201 at paragraph
10 thereof, while reiterating the said five principles as laid down in the case
of Sharad Birdhichand Sarda (supra), has observed as under:
"10. The present one is a case of circumstantial evidence
as no one has seen the commission of crime. The law in
the case of circumstantial evidence is well settled. The
leading case being Sharad Birdhichand Sarda vs. State of
Maharashtra. According to it, the circumstances should be
of a definite tendency unerringly pointing towards the guilt
of the accused; the circumstances taken cumulatively
should form a chain so complete that there is no escape
from the conclusion that within all human probability the
crime was committed by the accused and they should be
incapable of explanation on any hypothesis other than that
of the guilt of the accused and inconsistent with his
innocence. The said principle set out in the case of Sharad
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Cr. Appeal (DB) 199 of 2016
Birdhichand Sarda (supra) has been consistently followed
by this Court. In a recent case - Sailendra Rajdev Pasvan
and Others vs. State of Gujarat Etc., this Court observed
that in a case of circumstantial evidence, law postulates
two-fold requirements. Firstly, that every link in the chain
of circumstances necessary to establish the guilt of the
accused must be established by the prosecution beyond
reasonable doubt and secondly, all the circumstances
must be consistent pointing out only towards the guilt of
the accused. We need not burden this judgment by
referring to other judgments as the above principles have
been consistently followed and approved by this Court
time and again."
15. Thus, it is clear that in a case entirely based on circumstantial
evidence, the prosecution has to prove each of the circumstance
conclusively. It cannot be held to have been proved conclusively unless the
Court relying upon the same has formed an opinion that the incriminating
circumstance has been established conclusively. In this case, except that
the appellants and deceased were last seen by the parents of the deceased
(P.W.4 and P.W.5) at their home from where they left together, there is no
other evidence to connect the appellants with the death of the deceased.
Further, it has also come in cross examination of P.W.4 and P.W.5, parents
of the deceased, that there was friendly relations between the appellants
and the deceased and there was no dispute among them nor the
prosecution has been able to bring any piece of evidence showing enmity
between the appellants and the deceased. Thus, the main circumstance to
implicate the appellants in this crime, i.e., existence of motive is missing.
16. The Hon'ble Supreme Court in the case of Nandu Singh
versus State of Madhya Pradesh (Now Chhattisgarh) reported in 2022
SCC OnLine SC 1454 has held that absence of motive in a case of
circumstantial evidence weighs in favour of accused. At paragraph 12 of the
said judgment, the Hon'ble Supreme Court has observed as under: -
"12. In a case based on substantial evidence, motive
assumes great significance. It is not as if motive alone
becomes the crucial link in the case to be established by
the prosecution and in its absence the case of
Prosecution must be discarded. But, at the same time,
complete absence of motive assumes a different
complexion and such absence definitely weighs in favour
of the accused."
17. Further, the Hon'ble Supreme Court in the case of Jabir &
Cr. Appeal (DB) 1014 of 2015
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Cr. Appeal (DB) 199 of 2016
Others versus The State of Uttarakhand reported in 2023 SCC OnLine
SC 32 has held that the Court should not convict an accused only on the
basis of last seen circumstances. At paragraph 28 of the said judgment, the
Hon'ble Supreme Court has observed as under: -
"28. This court is also of the opinion that apart from the
above serious infirmities, there is no evidence, oral or
any material object, which connects the appellant
accused with the crime. It has been repeatedly
emphasized by this court, that the "last seen" doctrine
has limited application, where the time lag between the
time the deceased was seen last with the accused, and
the time of murder, is narrow; furthermore, the court
should not convict an accused only on the basis of the
"last seen" circumstance. In Jaswant Gir vs. State of
Punjab, this court explained the soundness of such a
rule: "Without probing further into the correctness of the
"last-seen" version emanating from P.W. 14's evidence,
even assuming that the deceased did accompany the
accused in their vehicle, this circumstance by itself does
not lead to the irresistible conclusion that the Appellant
and his companion had killed him and thrown the dead
body in the culvert. It cannot be presumed that the
Appellant and his companions were responsible for the
murder, though grave suspicion arises against the
accused. There is considerable time-gap between the
deceased boarding the vehicle of the Appellant and the
time when P.W. 11 found the dead body. In the absence
of any other links in the chain of circumstantial evidence
it is not possible to convict the Appellant solely on the
basis of the "last-seen" evidence, even if the version of
P.W. 14 in this regard is believed. In view of this, the
evidence of P.W. 9 as regards the alleged confession
made to him by the Appellant assumes importance."
16. Further, we find that the deceased went with the appellants on
31.05.2014 and according to the doctor, who conducted the postmortem on
04.06.2014, the time since death is 12 - 48 hours, thus, there is a huge gap
between the deceased last seen with the appellants and the time of death.
Prosecution has miserably failed to explain the same as to what has
happened during the said time period. From the records we also do not find
that any sanha was ever lodged about missing of the deceased.
17. From what has been held and discussed above and weighing
the facts, material and evidence of the case in the light of the observations
and guidelines of the Hon'ble Supreme Court in the judgments as cited
above, we are inclined to allow this appeal. The conviction of the appellants
Cr. Appeal (DB) 1014 of 2015
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Cr. Appeal (DB) 199 of 2016
under Sections 302/34, 201/34, 394/34 and 411/34 of the Indian Penal Code
vide impugned judgment of conviction dated 28th August, 2015 passed by
the Additional Sessions Judge-I, West Singhbhum, Chaibasa in Sessions
Trial No. 214 of 2014, is hereby set aside and accordingly the sentence
awarded by the Trial Court vide order of sentence dated 31st August, 2015 is
also set aside. The appellants are acquitted from the charges against them.
Let the appellants be released forthwith from jail, if they are not wanted in
any other case.
Both these criminal appeals are, accordingly, allowed. Pending
interlocutory applications, if any, stand disposed of.
18. Let the Trial Court Records be sent back to the Court concerned
forthwith along with a copy of this judgment.
(Ananda Sen, J.)
(Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated, the 18th September, 2024
AFR/Kumar/Cp-03
Cr. Appeal (DB) 1014 of 2015
WITH
Cr. Appeal (DB) 199 of 2016
