Patna High Court
Sonu Kumar @ Prakash Kumar vs The State Of Bihar on 12 December, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.35 of 2017
Arising Out of PS. Case No.-448 Year-2013 Thana- ARA NAWADA District- Bhojpur
======================================================
CHANDAN KUMAR @ CHANDRAN KUMAR S/o Sri Dadan Sao, resident
of Village- Gundi Saraiya, P.S.- Barhara, District- Bhojpur Bihar.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 10 of 2017
Arising Out of PS. Case No.-448 Year-2013 Thana- ARA NAWADA District- Bhojpur
======================================================
Sonu Kumar @ Prakash Kumar Son of Satendra Singh, Resident of Jai Hind
Colony, Nala More, P.S. Ara Town, District - Bhojpur
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 35 of 2017)
For the Appellant/s : Mr.Dharmendra Kumar Singh, Advocate
Mr. Shashi Shekhar Singh, Advocate
Mr. Sadanand Roy, Advocate
For the Respondent/s : Mr. Sujit Kumar Singh, APP
(In CRIMINAL APPEAL (DB) No. 10 of 2017)
For the Appellant/s : Mr. Surendra Kumar Singh, Advocate
Mr. Prabhat Kumar Singh, Advocate
Ms. Priya, Advocate
For the Respondent/s : Mr. Sujit Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE RUDRA PRAKASH MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 12-12-2023
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
2/29
Both these appeals, filed under Sections- 374(2)
and 389(1) of the Code of Criminal Procedure, 1973
(hereinafter referred to as the 'Code', arise out of the common
judgment of conviction dated 15.11.2016 and order of sentence
dated 18.11.2016 passed by Sri Yogesh Narayan Singh, learned
Additional Sessions Judge, IV, Bhojpur, Arrah in S.T. No.150
of 2014, arising out of Arrah (Nawada) P.S. Case No.448 of
2013, whereby and whereunder the appellants have been held
guilty for the offences punishable under Sections- 302, 364,
120(B), 392 and 34 of the Indian Penal Code (hereinafter
referred to as 'I.P.C.') and appellant/accused Chandan Kumar
has been sentenced to undergo rigorous imprisonment for life
and a fine of Rs. 10,000/- for Sections- 302 and 120(B) of
I.P.C., rigorous imprisonment for seven years and a fine of Rs.
5000/- for the offence under Section- 364 of I.P.C. and rigorous
imprisonment for five years and a fine of Rs.5000/- for the
offence under Section-392 of I.P.C. Appellant/accused Sonu
Kumar has been sentenced to undergo rigorous imprisonment
for life and fine of Rs. 10,000/- for Sections- 302 and 120(B) of
I.P.C., rigorous imprisonment for seven years and a fine of Rs.
5000/- for the offence under Section- 364 read with 120(B) of
I.P.C. and rigorous imprisonment for five years and a fine of
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
3/29
Rs.5000/- for the offence under Section-392 read with 120(B)
of I.P.C. In default of payment of fine, they will undergo six
months imprisonment each. All the sentences have been
ordered to run concurrently and period spent under trial will be
counted under sentences.
2. The prosecution story in brief is as under:
"The informant is the owner of a
Scorpio car bearing Reg. No.BR-03P-8205 which
was driven by Gautam Kumar (deceased). On
14.12.2013
at about 3:30 p.m. the driver Gautam
Kumar came to his residence and took permission
to go for worship at Rajrappa temple in Jharkha
with some of his relatives on the assurance that he
will return till 15.12.2013. At 9:30 p.m. he made a
call to the owner informing him that he was at
Jehanabad and was on way to Rajrappa. On
15.12.2013, the informant tried to contact the
driver Gautam Kumar which whose mobile phone
was switched off. He tried again on the same
number, but could not contact him. On 16.12.2013
he made contacts with the family members of
Gautam Kumar who informed him that he will
return till 16.12.2013, but he did not return. The
informant has apprehension that his vehicle has
met with some mishappening in collusion with the
driver and his associates."
3. Heard learned advocate Mr. Dharmendra Kumar
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
Singh assisted by Mr. Shashi Sekhar Singh and Mr. Sadanand
Roy for the appellant in Cr. Appeal (D.B.) No. 35 of 2017 and
learned advocate Mr. Surendra Kumar Singh assisted by Mr.
Prabhat Kumar Singh and Ms. Priya for the appellant in Cr.
Appeal (D.B.) No.10 of 2017 and Mr. Sujit Kumar Singh,
learned A.P.P. for the respondent State in both the appeals.
4. Learned counsels appearing for the appellants
have mainly submitted that, in the present case, there is no eye-
witness to the occurrence in question and the case of the
prosecution rests on circumstantial evidence. The prosecution
has applied the theory of last seen together and on the basis of
the same, though the prosecution has failed to complete the
chain of circumstances, the learned Trial Court has recorded the
conviction of the appellants/accused and, therefore, the
impugned order be quashed and set aside.
5. It is submitted that, as per the deposition of P.W.
1, namely Krishna Kumar, who is the brother of the deceased,
accused Sonu Kumar @ Prakash Kumar and Santosh Verma
went to the house of the deceased and requested him to go with
them to Rajrappa in the Scorpio car. However, thereafter the
said witness came to know that appellant Chandan Kumar was
also present in the Scorpio car. Thus, there are contradictions in
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
the deposition of the prosecution-witnesses.
6. It is further submitted that the F.I.R. was filed
by the owner of the car, i.e. P.W. 3 namely Manvendra Narain
Singh against his driver Gautam Kumar @ Mithun (deceased)
for the offences punishable under Sections-406, 420, 120B and
34 of I.P.C. The said F.I.R. was lodged on 17.12.2013 by
alleging that the driver of the said witness, i.e. deceased
Gautam Kumar, had gone with the Scorpio car for Rajrappa.
However, he has not returned with the car and thereby he has
committed the alleged offences. It is submitted that during the
course of investigation it was revealed that the dead body of an
unknown person was found in the forest and, therefore, one
Chaukidar informed to Vishnu Garh Police Station. Therefore,
the F.I.R. was registered with regard to the said dead body with
the said police station. Thereafter, the post mortem of the dead
body was conducted by the concerned Doctor, i.e. P.W. 7 on
18.12.2013.
7. It is further submitted that during the course of
investigation of the said F.I.R., which was filed by P.W. 3
against his driver (deceased) for the offences punishable under
Sections-406, 420, 120B of I.P.C., it was revealed that the said
driver was killed by the present appellants and another accused
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
and, therefore, Section-302 of I.P.C. came to be added.
However, there is no material connecting the appellants herein
with the incident of killing of Gautam Kumar. Though the
Investigating Officer has collected the C.D.R. of the mobile
phones of the appellants and the deceased, the said C.D.R. was
not duly proved as per Section-65B of the Indian Evidence Act.
Even the I.O. was not authorized to take out the C.D.R.
8. Learned counsels for the appellants would
further submit that even as per the case of the prosecution and
that too on the confessional statement of accused Chandan
Kumar that the appellants/accused killed the deceased Gautam
Kumar @ Mithun on 15.12.2023. From the post mortem
conducted by the doctor, P.W. 7 on 18.12.2013, time of death
was shown 12 to 24 hours approximately from the date of
conducting the said post mortem.
9. Thus, from the deposition of the doctor, it can
be said that the story of the prosecution that the deceased was
killed by the appellants on 15.12.2013 is not supported by the
said evidence. Learned counsels, therefore, urged that as the
prosecution has failed to prove the offences against the
appellants/accused beyond reasonable doubt, the
appellants/accused be acquitted by quashing and setting aside
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
the impugned judgment and order.
10. On the other hand, learned A.P.P. has opposed
these appeals. It is mainly submitted that both these appellants
were seen in the company of the deceased when they went to
the house of the deceased and requested him to go with them to
Rajrappa in the Scorpio car. The Scorpio car was hired and
from the next day the deceased was missing and it was found
that his mobile phone was switched off. The location of the
mobile tower of the appellants and the deceased was the same.
C.D.R. of the mobile phones were produced before the Court
by the Investigating Officer. Therefore, there is sufficient
material connecting them with the occurrence in question and,
therefore, when the prosecution has proved the case against the
appellants/accused beyond reasonable doubt, the learned Trial
Court has not committed any error while passing the impugned
judgment and order. He, therefore, urged that both these
appeals be dismissed.
11. We have considered the submissions canvassed
by the learned counsels for the parties.
12. We have also perused the materials placed on
record and the evidence led by the prosecution. It is not in
dispute that the present case is a case of circumstantial
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
evidence and the prosecution has mainly placed the theory of
last seen together. It would emerge from the record that P.W. 3,
who is the owner of the Scorpio car, filed the F.I.R. on
17.12.2013 against his driver Gautam Kumar @ Mithun
(deceased) for the alleged offences punishable under Sections-
406, 420, 120B and 34 of I.P.C. It is stated in the said F.I.R.
that his driver, accused Gautam Kumar @ Mithun is missing
since 14.12.2013 with the Car. The said driver Gautam Kumar
@ Mithun informed P.W. 3 on telephone that he is going with
his relatives to Rajrappa, Jharkhand for purposes of Darshan
and he will return on 15.12.2013. Therefore, he gave
permission on telephone. When he enquired at 9:30 p.m. of
14.12.2013 on the mobile phone of his driver Gautam Kumar,
he informed that he is at Jehanabad. However, when he again
tried to contact his driver in the morning of 15.12.2013, it was
found that his mobile phone was switched off. Thereafter, he
has personally visited the house of his driver Gautam Kumar on
16.12.2013. He has, therefore, lodged the said F.I.R.
13. After filing of the F.I.R., the investigating
agency carried out the investigation and during the course of
investigation, the Investigating Officer recorded the statement
of the witnesses and collected the relevant documents and
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
thereafter initially filed the final report in favour of the
accused. However, it is pointed out by the learned counsels that
the Court directed the investigating agency to carry out further
investigation and thereafter the investigating agency filed the
charge-sheet against the accused. As the case was exclusively
triable by the Court of Sessions, the case was committed to the
Court of Sessions.
14. As observed hereinabove, during the course of
investigation of the said F.I.R., it was revealed that the dead
body of one unknown person was found in the forest and,
therefore, one Chaukidar informed Vishnu Garh police station
where the F.I.R. was registered for the death of unknown
person. It would further reveal from the record that the said
police station sent the dead body of the unknown person for
post mortem and post mortem of the said dead body was
conducted by the concerned Doctor. For the said purpose, P.W.
7 has been examined by the prosecution. It further transpires
that thereafter accused Chandan Kumar @ Chandran Kumar
was arrested on 9th of January, 2014 and thereafter his
confessional statement was recorded by the police and it was
revealed that both these appellants along with other accused
have killed Gautam Kumar @ Mithun and, therefore, Section-
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
302 of I.P.C. was added.
15. With a view to prove the charges levelled
against the appellants/accused, the prosecution had examined
seven witnesses.
16. P.W. 1 Krishna Kumar, who is the brother of
the deceased Gautam Kumar @ Mithun, has stated that Gautam
Kumar was his brother who was a driver. On 14.12.2013 at
about 1:30 to 2:00 p.m. when his brother Mithun came to house
to take lunch, at that time accused Sonu Kumar and Santosh
Sharma came to his house and both said that they want to go to
Rajrappa and, therefore, his brother agreed for the same.
Thereafter, his brother talked to the vehicle owner Manvendra
Narayan Singh on mobile phone and after getting permission
from him, his brother Mithun went with Chandan Kumar and
Santosh Sharma in the Scorpio car. It is further stated that on
the next day when he tried to contact to his brother on
telephone, it was found that the mobile phone of the brother
was switched off. The said witness also enquired from the
owner of the vehicle and the owner told him that he had a talk
with Mithun at about 9:00 p.m. At that time he was in
Jehanabad. Thereafter on 10th January, 2014, the said witness
came to know from Darogaji that his brother was killed.
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
Photograph and clothes of the deceased was shown to him and
the said witness identified his brother. The said witness
identified accused Sonu Kumar @ Prakash Kumar and
Chandan Kumar @ Chandran Kumar who were present in
Court.
16.1 During the cross-examination, the said
witness has stated that the owner of the car has lodged the
F.I.R. against his brother. In connection with the said F.I.R.,
statement was recorded. He has further stated that he had seen
Chandan for the first time when his brother Mithun left the
house. At that time his brother told him that Chandan is his
friend and he is a Tempo driver.
17. P.W. 2 Kanhaiya Kumar Sah is also brother of
Gautam Kumar @ Mithun. The said witness also stated that his
brother used to drive Scorpio car of Manvendra Narayan
Singh. On 14.12.2013, between 1:00 to 2:00 p.m. Sonu Kumar
and Santosh Sharma came to his house and asked Gautam to go
with them to Rajrappa for Darshan. Therefore, his brother
informed the vehicle owner on mobile phone about the trip of
Rajrappa and thereafter his brother went with the accused.
However, on the next day when he tried to call Gautam, his
phone was switched off. Therefore, he went to the house of
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
Sonu and asked about the whereabouts of his brother. At that
time, accused Sonu informed that he does not know about his
brother and the car. Therefore, they returned to the house. He
has further stated that on 16.12.2013, the owner of the car came
to his house and enquired about his brother Gautam @ Mithun.
Thereafter, the said person filed the F.I.R. against Gautam
Kumar and on 18.12.2013 his statement was recorded by the
police. However, his brother was not found. Thereafter, the
police came to his house and photograph of the dead body and
clothes were shown to him.
17.1 During cross-examination, the said witness
has admitted that they have not lodged any F.I.R. by saying that
their brother is missing nor they have filed any F.I.R. with
regard to the occurrence of death of his brother. They came to
know on 09.01.2014 that their brother has been killed.
18. P.W. 3 Manvendra Narayan Singh is the owner
of the Scorpio car and the said witness had lodged the F.I.R.
against his driver Gautam Kumar for the alleged offences
punishable under Sections- 406, 420, 120B and 34 of I.P.C. The
said witness, in the examination-in-chief, has stated that on
14.12.2013 Gautam @ Mithun, the driver of his Scorpio car,
came at about 2:00 to 3:00 p.m. and said that he would take
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
some relatives for Darshan in Rajrappa, Jharkhand and also
told that they will return on the next day. On his insistence the
said witness gave permission and thereafter when the said
witness enquired at about 9:30 p.m., Mithun informed him that
he was in Jehanabad and further going to Rajrappa. However,
from 15.12.2013 there was no contact with Mithun on mobile
phone and, therefore, on 16.12.2013 he went to the house of
Mithun and asked about the whereabouts of Mithun and the car.
Thereafter, he lodged the F.I.R. on 17.12.2013.
18.1 During cross-examination, he has stated that
he gave information to the police and lodged the F.I.R. against
Gautam Kumar.
19. P.W. 4 Satyendra Kumar was posted as Police
Inspector in Ara (Nawada) police station. He took over the
charge of investigation of the F.I.R. in question. However, after
some time, the said investigation was handed over to another
officer.
20. P.W. 5 Ram Chandra Yadav was also posted as
Sub-Inspector of Police in Nawada police station. The said
witness also carried out certain part of investigation and on the
basis of the case diary and the other material collected by the
other investigating officer, he filed the charge-sheet against
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
accused Sonu Kumar and Chandan Kumar.
21. P.W. 6 Kunwar Prasad Gupta was posted as
Police Sub-Inspector at Ara (Nawada) on 17.12.2013. The said
witness started the investigation and during the course of
investigation he has collected the C.D.R. of missing driver
Gautam Kumar and after getting the C.D.R. of Gautam, Sonu
and Santosh it was revealed that one Chandan is also involved
in the incident in question and, therefore, on the basis of the
C.D.R., Chandan was apprehended on 9th of January, 2014. His
confessional statement was recorded and thereafter the said
accused was taken to the forest where the dead body of the
deceased Gautam was thrown after killing him. Thereafter, it
was revealed that F.I.R. No. 145 of 2013 was registered at
Vishnu Garh police station and, therefore, copy of the said
F.I.R. was obtained and photograph of the dead body was also
obtained. Thereafter, the accused Chandan was taken to Corpus
Welfare Committee from where the clothes of deceased
Gautam Kumar were obtained. Thereafter, accused were taken
to the hotel where some of the accused stayed from where the
printed receipt and register was obtained from the Manager.
21.1 During cross-examination the said witness
has stated that after 17.12.2013, none of the family members of
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
deceased Gautam had lodged any F.I.R. The said witness has
further admitted that he is not having any authorization letter
for taking out the call details nor he has taken any training for
taking out the call details. He has also admitted in Para-82 of
the case diary that there is overwriting in the date and time. The
said witness has also admitted that he had not taken the
statement of the person who has recorded the F.I.R. No. 145 of
2013 registered with Vishnu Garh police station nor he has
prepared any Panchnama of the place from where the dead
body was recovered in the forest. The said witness has also not
taken the statement of the police officer who had supplied the
photograph and the clothes of the deceased nor he had taken
the statement of any person from Corpus Welfare Committee.
The said witness further admitted that he has also not taken the
statement of the hotel staff or the Manager who had given the
register and the receipt.
22. P.W. 7 Dr. Angraj Subhash Chandra has stated
that on 18.12.2013, he was posted as Medical Officer in Sadar
Hospital, Hazaribagh. At that time, dead body of an unknown
person was sent by one Chaukidar. Thereafter, he started
conducting the post mortem at about 1:00 p.m. and he has
observed as under:
"1. Rigor mortis was present in all four limbs.
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
2. Bleeding from nose both nostrils.
Injuries-
3. Injury No. (I) Multiple abrasion on right chest with variable
sizes ranging from 1" x 3".
(ii) Finger marks present over left side of neck extending from
Lt. side of neck to neck size of 2".
(iii) Fracture of hyoid bone present.
(iv) Fracture of ribs Rt. side lower 3 in number.
(v) Lacerated injury of lung Rt. Side, size 1" x 1" x 1/2" with
Haemothorax present.
(vi) Lacerated injury of liver Rt. Side 1/1" x 1/2" x 1".
Cause of death- In my opinion due to throttling and
haemorrhage and shock.
Time in death- 12 to 24 hrs. approx.
This report is written and signed by me.
4. This attested copy is produced by Binugarh Police Station
which is attested copy of original postmortem report which is
marked with objection ext.-16."
22.1 During cross-examination, the said witness
has admitted that in post mortem report, Ext-16, there is no
reference with regard to the F.I.R. number nor there is mention
about the name of the corpus.
23. From the aforesaid evidence led by the
prosecution, it is revealed that the case of the prosecution is on
the basis of the theory of last seen together. It is alleged that the
accused were lastly seen in the company of the deceased
Gautam and after three days the dead body of Gautam was
found and, therefore, the present appellants/accused must have
killed the deceased. It is relevant to note that as per the case of
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
the prosecution on the basis of the confessional statement of
Chandan Kumar @ Chandran Kumar that they killed the
deceased Gautam and thereafter his dead body was thrown in
forest on 15.12.2013, accused have been arrested. However, if
the post mortem report produced by P.W. 7 doctor is carefully
seen, it is revealed that the said Doctor has specifically
observed in the post mortem that time of death is 12 to 24 hours
approximately. It is pertinent to note that the said doctor has
conducted the post mortem of the dead body on 18.12.2013 at
1:00 p.m. and, therefore, as per the case of the said expert, the
person whose post mortem was conducted must have died
before 12 to 24 hours. It is also relevant to note that, as per the
case of the prosecution, the dead body was found on
17.12.2013 from the forest and, therefore, on the basis of the
information given by one Chaukidar, F.I.R. No.145 of 2013
came to be lodged with Vishnu Garh Police Station. It is
relevant to note that as per the case of prosecution accused
have killed the deceased Gautam on 15.12.2013, whereas as per
post mortem report, death must have been caused on
17.12.2013. Further, there is a time gap of more than three days
from the date when the appellants/accused were lastly seen in
the company of the deceased i.e. 14.12.2013 and the date on
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
which the dead body was found i.e. 17.12.2013.
24. It is also relevant to observe that the
prosecution has failed to point out motive on the part of the
accused to commit the alleged offences. In the case of
circumstantial evidence, motive assumes importance. Even the
Scorpio car is not recovered from the appellants/accused and
during the course of investigation and even thereafter the said
Scorpio car was not found.
25. It would emerge from the record that the
Investigating Officer had implicated the appellants/accused on
the basis of the C.D.R. of the mobile phones. However, it is
relevant to note that mobile phone of the deceased was not
recovered nor anything was found from the place of
occurrence, i.e. the place from where the dead body was found
in the forest. The Investigating Officer has not even recorded
the statement of the person who lodged the F.I.R., the police
officer who recorded the F.I.R. nor of the Manager and another
employee of the hotel in which it is alleged that some of the
accused have stayed. Even C.C.T.V. footage of the said hotel
was not obtained. Further, certificate as per Section-65B of
Evidence Act was also not produced. Investigating Officer was
not authorised to produce C.D.R. and not trained officer for that
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
purpose.
26. On the point of motive assuming importance
the Hon'ble Supreme Court in the case of Ravi Sharma Vs.
State (Government of NCT of Delhi) & Anr, reported in
(2022) 8 SCC 536, has observed in Para-14 as under:
14. When we deal with a case of circumstantial
evidence, as aforesaid, motive assumes significance.
Though, the motive may pale into insignificance in a case
involving eyewitnesses, it may not be so when an accused
is implicated based upon the circumstantial evidence. This
position of law has been dealt with by this Court
in Tarseem Kumar v. Delhi Admn. [Tarseem
Kumar v. Delhi Admn., 1994 Supp (3) SCC 367 : 1994
SCC (Cri) 1735] in the following terms : (SCC p. 371, para
8)
"8. Normally, there is a motive behind every
criminal act and that is why investigating agency as
well as the court while examining the complicity of
an accused try to ascertain as to what was the
motive on the part of the accused to commit the
crime in question. It has been repeatedly pointed
out by this Court that where the case of the
prosecution has been proved beyond all reasonable
doubts on basis of the materials produced before
the court, the motive loses its importance. But in a
case which is based on circumstantial evidence,
motive for committing the crime on the part of the
accused assumes greater importance. Of course, if
each of the circumstances proved on behalf of the
prosecution is accepted by the court for purpose of
recording a finding that it was the accused who
committed the crime in question, even in absence
of proof of a motive for commission of such a
crime, the accused can be convicted. But the
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
investigating agency as well as the court should
ascertain as far as possible as to what was the
immediate impelling motive on the part of the
accused which led him to commit the crime in
question."
27. At this stage, we would like to refer the
decision rendered by the Hon'ble Supreme Court in the case of
Anjan Kumar Sarma & Ors. Vs. State of Assam, reported in
(2017) 14 SCC 359, wherein the Hon'ble Supreme Court has
observed in paragraph Nos.13, 16 and 21 as under:
"13. Jit Kakati was acquitted for committing
an offence under Section 366-A IPC and his acquittal was
confirmed by the High Court. Jit Kakati died during the
pendency of the criminal appeal before this Court and the
appeal filed by him abated. The acquittal of the appellants
under Section 376(2)(g) was confirmed by the High Court
which remains unchallenged. The point that falls for our
consideration is whether the conviction of the appellants by
the High Court under Sections 302, 201 read with Section
34 IPC is justified. The High Court was conscious of the
fact that interference with the judgment of an acquittal by
the trial court is unwarranted except when it suffers from
the vice of perversity (see Brahm Swaroop v. State of U.P.
[Brahm Swaroop v. State of U.P., (2011) 6 SCC 288 :
(2011) 2 SCC (Cri) 923] , SCC para 38). There is neither a
discussion nor finding recorded by the High Court about
any perversity in the judgment of the trial court. The only
ground on which the High Court reversed the judgment of
the trial court is that the prosecution proved that the
accused and the deceased were last seen together and there
was no explanation which led to the presumption of guilt
of the accused.
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
16. It is no more res integra that suspicion
cannot take the place of legal proof for sometimes,
unconsciously it may happen to be a short step between
moral certainty and the legal proof. At times it can be a
case of "may be true". But there is a long mental distance
between "may be true" and "must be true" and the same
divides conjectures from sure conclusions. (See Jaharlal
Das v. State of Orissa [Jaharlal Das v. State of Orissa,
(1991) 3 SCC 27 : 1991 SCC (Cri) 527] , SCC p. 37, para
11.)
21. This Court in Bharat v. State of M.P.
[Bharat v. State of M.P., (2003) 3 SCC 106 : 2003 SCC
(Cri) 738] held that the failure of the accused to offer any
explanation in his statement under Section 313 CrPC alone
was not sufficient to establish the charge against the
accused. In the facts of the present case, the High Court
committed an error in holding that in the absence of any
satisfactory explanation by the accused the presumption of
guilt of the accused stood unrebutted and thus the
appellants were liable to be convicted."
28. In the case of Ravi & Anr. Vs. State of
Karnataka, reported in (2018) 16 SCC 102, the Hon'ble
Supreme Court has observed in Paragraph Nos. 3 and 4 as
under:
"3. The appellant-accused and the deceased
along with Suma (PW 1) and Rama Nayak (PW 2) were
together on 26-12-2004, the precise time being around 1.30
p.m. The dead body was recovered after a gap of four (4)
days i.e. on 30-12-2004. The post-mortem report indicated
that the death had occurred 30 hours prior to the time of
post-mortem examination. The medical evidence,
therefore, would be suggestive of the fact that the dead
body was recovered after about two (2) days from 1.30
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
p.m. of 26-12-2004.
4. The question that confronts the Court is
whether on the basis of the aforesaid evidence the
conviction of the appellant-accused is sustainable in law."
29. In the case of Reena Hazarika Vs. State of
Assam, reported in (2019) 3 SCC 289, the Hon'ble Supreme
Court has observed in Paragraph No. 9 as under:
"9. The essentials of circumstantial
evidence stand well established by precedents and
we do not consider it necessary to reiterate the
same and burden the order unnecessarily. Suffice it
to observe that in a case of circumstantial evidence
the prosecution is required to establish the
continuity in the links of the chain of
circumstances, so as to lead to the only and
inescapable conclusion of the accused being the
assailant, inconsistent or incompatible with the
possibility of any other hypothesis compatible
with the innocence of the accused. Mere
invocation of the last-seen theory, sans the facts
and evidence in a case, will not suffice to shift the
onus upon the accused under Section 106 of the
Evidence Act, 1872 unless the prosecution first
establishes a prima facie case. If the links in the
chain of circumstances itself are not complete, and
the prosecution is unable to establish a prima facie
case, leaving open the possibility that the
occurrence may have taken place in some other
manner, the onus will not shift to the accused, and
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
the benefit of doubt will have to be given."
30. In the case of Sharad Birdhichand Sarda Vs.
State of Maharashtra, reported in (1984) 4 SCC 116, the
Hon'ble Supreme Court has observed in paragraph 150 to 160 as
under:
"150. It is well settled that the prosecution
must stand or fall on its own legs and it cannot derive any
strength from the weakness of the defence. This is trite law
and no decision has taken a contrary view. What some
cases have held is only this: where various links in a chain
are in themselves complete, then a false plea or a false
defence may be called into aid only to lend assurance to
the court. In other words, before using the additional link it
must be proved that all the links in the chain are complete
and do not suffer from any infirmity. It is not the law that
where there is any infirmity or lacuna in the prosecution
case, the same could be cured or supplied by a false
defence or a plea which is not accepted by a court.
151. Before discussing the cases relied upon
by the High Court we would like to cite a few decisions on
the nature, character and essential proof required in a
criminal case which rests on circumstantial evidence alone.
The most fundamental and basic decision of this Court is
Hanumant v. State of Madhya Pradesh 1952 SCR 1091 :
(AIR 1952 SC 343) . This case has been uniformly
followed and applied by this Court in a large number of
later decisions up-to-date, for instance, the cases of Tufail
v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal
v. State of Maharashtra, AIR 1972 SC 656. It may be
useful to extract what Mahajan, J. has laid down in
Hanumant's case (at pp. 345-46 of AIR) (supra):
"It is well to remember that in cases where
the evidence is of a circumstantial nature, the
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
circumstances from which the conclusion of guilt is to be
drawn should in the first instance be fully established, and
all the facts so established should be consistent only with
the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete as
not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must be
such as to show that within all human probability the act
must have been done by the accused."
152. 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
Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622)
where the observations were made:
"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
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
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.
153. These five golden principles, if we may
say so, constitute the panchsheel of the proof of a case
based on circumstantial evidence.
154. It may be interesting to note that as
regards the mode of proof in a criminal case depending on
circumstantial evidence, in the absence of a corpus delicti,
the statement of law as to proof of the same was laid down
by Gresson, J. (and concurred by 3 more Judges) in The
King v. Horry, (1952) NZLR 111, thus:
"Before he can be convicted, the fact of
death should be proved by such circumstances as render
the commission of the crime morally certain and leave no
ground for reasonable doubt: the circumstantial evidence
should be so cogent and compelling as to convince a jury
that upon no rational hypothesis other than murder can the
facts be accounted for."
155. Lord Goddard slightly modified the
expression 'morally certain' by 'such circumstances as
render the commission of the crime certain'.
156. This indicates the cardinal principle of
criminal jurisprudence that a case can be said to be proved
only when there is certain and explicit evidence and no
person can be convicted on pure moral conviction. Horry's
case (supra) was approved by this Court in Anant
Chintaman Lagu v. State of Bombay, (1960) 2 SCR 460 :
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
(AIR 1960 SC 500). Lagu's case as also the principles
enunciated by this Court in Hanumant's case (supra) have
been uniformly and consistently followed in all later
decisions of this Court without any single exception. To
quote a few cases -- Tufail case (1969) 3 SCC 198 (supra),
Ramgopal's case (AIR 1972 SC 656) (supra), Chandrakant
Nyalchand Seth v. State of Bombay (Criminal Appeal No
120 of 1957 decided on 19-2-1958), Dharambir Singh v.
State of Punjab (Criminal Appeal No 98 of 1958 decided
on 4-11-1958). There are a number of other cases where
although Hanumant's case has not been expressly noticed
but the same principles have been expounded and
reiterated, as in Naseem Ahmed v. Delhi Administration,
(1974) 2 SCR 694 (696) : (AIR 1974 SC 691 at p. 693),
Mohan Lal Pangasa v. State of U.P., AIR 1974 SC 1144
(1146), Shankarlal Gyarasilal Dixit v. State of
Maharashtra, (1981) 2 SCR 384 (390) : (AIR 1981 SC 765
at p. 767) and M.G. Agarwal v. State of Maharashtra,
(1963) 2 SCR 405 (419) : (AIR 1963 SC 200 at p. 206) a
five-Judge Bench decision.
157. It may be necessary here to notice a
very forceful argument submitted by the Additional
Solicitor-General relying on a decision of this Court in
Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570
(582) : (AIR 1955 SC 801 at p. 806), to supplement his
argument that if the defence case is false it would
constitute an additional link so as to fortify the prosecution
case. With due respect to the learned Additional Solicitor
General we are unable to agree with the interpretation
given by him of the aforesaid case, the relevant portion of
which may be extracted thus:
"But in a case like this where the various
links as stated above have been satisfactorily made out and
the circumstances point to the appellant as the probable
assailant, with reasonable definiteness and in proximity to
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
the deceased as regards time and situation. . . such absence
of explanation or false explanation would itself be an
additional link which completes the chain."
158. It will be seen that this Court while
taking into account the absence of explanation or a false
explanation did hold that it will amount to be an additional
link to complete the chain but these observations must be
read in the light of what this Court said earlier, viz., before
a false explanation can be used as additional link, the
following essential conditions must be satisfied:
(1) various links in the chain of evidence led
by the prosecution have been satisfactorily proved,
(2) the said circumstance point to the guilt
of the accused with reasonable definiteness, and
(3) the circumstance is in proximity to the
time and situation.
159. If these conditions are fulfilled only
then a court can use a false explanation or a false defence
as an additional link to lend an assurance to the court and
not otherwise. On the facts and circumstances of the
present case, this does not appear to be such a case. This
aspect of the matter was examined in Shankarlal's case
(AIR 1981 SC 765) (supra) where this Court observed
thus:
"Besides, falsity of defence cannot take the
place of proof of facts which the prosecution has to
establish in order to succeed. A false plea can at best be
considered as an additional circumstance, if other
circumstances point unfailingly to the guilt of the
accused."
160. This Court, therefore, has in no way
departed from the five conditions laid down in Hanumant's
case (AIR 1952 SC 343) (supra). Unfortunately, however,
the high Court also seems to have misconstrued this
decision and used the so-called false defence put up by the
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
appellant as one of the additional circumstances connected
with the chain. There is a vital difference between an
incomplete chain of circumstances and a circumstance
which, after the chain is complete, is added to it merely to
reinforce the conclusion of the Court. When the
prosecution is unable to prove any of the essential
principles laid down in Hanumant's case, the High Court
cannot supply the weakness or the lacuna by taking aid of
or recourse to a false defence or a false plea. We are,
therefore, unable to accept the argument of the Additional
Solicitor-General."
31. Keeping in view the aforesaid decisions
rendered by Hon'ble Supreme Court, if the evidence of the
present case is appreciated, we are of the view that prosecution
has failed to establish the case against appellants beyond
reasonable doubt. Hence, trial court has committed grave error
in passing the impugned order.
32. Accordingly, the impugned judgment of
conviction dated 15.11.2016 and order of sentence dated
18.11.2016 passed by learned Additional Sessions Judge-IV,
Bhojpur, Ara in connection with Sessions Trial No. 150 of
2014, arising out of Ara Nawada P.S. Case No. 448 of 2013 is
quashed and set aside. The appellants, namely, Sonu Kumar @
Prakash Kumar and Chandan Kumar @ Chandran Kumar are
acquitted of the charges levelled against them by the learned
trial court.
Patna High Court CR. APP (DB) No.35 of 2017 dt.12-12-2023
32.1 Since the appellant namely, Sonu Kumar @
Prakash Kumar in Cr. Appeal (DB) No. 10/2017 is on bail. He
is discharged of the liabilities of his bail bonds. Appellant
namely, Chandan Kumar @ Chandran Kumar in Cr. Appeal
(DB) No. 35/2017 is in jail, he is directed to be released
forthwith, if his presence is not required in any other case.
33. Both the appeals stand allowed.
(Vipul M. Pancholi, J)
( Rudra Prakash Mishra, J)
K.C.Jha/-
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 18.12.2023
Transmission Date 18.12.2023
