Jitendra Chaudhary @ Jitendra Kumar ... vs The State Of Bihar
2024 Latest Caselaw 708 Patna

Patna High Court

Jitendra Chaudhary @ Jitendra Kumar ... vs The State Of Bihar on 30 January, 2024

Author: Chakradhari Sharan Singh

Bench: Chakradhari Sharan Singh

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.702 of 2018
   Arising Out of PS. Case No.-54 Year-2014 Thana- BUNIYAD GANJ District- Gaya
======================================================
Raju Kumar Yadav Son of Dhaneshwar Yadav @ Dhanesar Yadav Resident of
Village - Kathautiya, P.S. Muffasil, District - Gaya.

                                                               ... ... Appellant/s
                                    Versus
The State Of Bihar

                                            ... ... Respondent/s
======================================================
                          with
           CRIMINAL APPEAL (DB) No. 719 of 2018
   Arising Out of PS. Case No.-54 Year-2014 Thana- BUNIYAD GANJ District- Gaya
======================================================
Dharmendra Kumar Son of Munnilal @ Munnia Yadav, resident of Village-
Shadipur, P.S. Buniyadganj, District- Gaya.

                                                               ... ... Appellant/s
                                    Versus
The State Of Bihar

                                            ... ... Respondent/s
======================================================
                          with
           CRIMINAL APPEAL (DB) No. 743 of 2018
   Arising Out of PS. Case No.-54 Year-2014 Thana- BUNIYAD GANJ District- Gaya
======================================================
Jitendra Chaudhary @ Jitendra Kumar Chaudhary son of Arjun Choudhary,
resident of Village- Manpur Pehani, Police Station- Buniyadganj, District-
Gaya Bihar.

                                                               ... ... Appellant/s
                                    Versus
The State Of Bihar

                                          ... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 702 of 2018)
For the Appellant/s  :    Mr. Ajay Kumar Thakur, Advocate
                          Mrs. Vaishnavi Singh, Advocate
                          Mr. Purushotam Kumar, Advocate
For the Respondent/s :    Mr. Ajay Mishra, APP
(In CRIMINAL APPEAL (DB) No. 719 of 2018)
For the Appellant/s  :    Mr. Ajay Kumar Thakur, Advocate
                          Mrs. Vaishnavi Singh, Advocate
                          Mr. Purushotam Kumar, Advocate
For the Respondent/s :    Ms. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 743 of 2018)
For the Appellant/s  :    Mr. Ajay Kumar Thakur, Advocate
 Patna High Court CR. APP (DB) No.702 of 2018 dt.30-01-2024
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                                               Mrs. Vaishnavi Singh, Advocate
                                               Mr. Purushotam Kumar, Advocate
       For the Respondent/s       :            Mr. Abhimanyu Sharma, APP
       ======================================================
       CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
       SINGH
               and
               HONOURABLE JUSTICE SMT. G. ANUPAMA
       CHAKRAVARTHY
       ORAL JUDGMENT
       (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
       SINGH)

         Date : 30-01-2024
                  These appeals have been preferred by the appellants

       under Section 374(2) of the Code of Criminal Procedure, putting

       to challenge the impugned judgment of conviction dated

       17.04.2018

and the order of sentence dated 24.04.2018, passed by

learned 1st Additional District & Sessions Judge-cum-Special

Judge (POCSO Act), Gaya, arising out of Buniyadganj P.S. Case

No. 54 of 2014, POCSO Case No. 12 of 2015, whereby the

appellants have been convicted and sentenced as under:

Sentence Appellant Penal Provision In default of Imprisonment Fine (Rs.) fine Under Section 302/34 of R.I. for life 25,000/- R.I. for two years the IPC Raju Kumar Under Section 201/34 R.I. for seven 10,000/- R.I. for one year Yadav years Under Section 6 of the R.I. for life 25,000/- R.I. for two years POCSO Act

Sentence Appellant Penal Provision Imprisonment Fine (Rs.) In default of fine Dharmendra Under Section 302/34 of R.I. for life 25,000/- R.I. for two years Kumar the IPC Under Section 201/34 R.I. for seven 10,000/- R.I. for one year years Under Section 6 of the R.I. for life 25,000/- R.I. for two years Patna High Court CR. APP (DB) No.702 of 2018 dt.30-01-2024

POCSO Act

Sentence Appellant Penal Provision Imprisonment Fine (Rs.) In default of fine Under Section 302/34 of R.I. for life 25,000/- R.I. for two years Jitendra the IPC Chaudhary Under Section 201/34 R.I. for seven 10,000/- R.I. for one year @ Jitendra years Kumar Chaudhary Under Section 6 of the R.I. for life 25,000/- R.I. for two years POCSO Act

2. All the sentences have been ordered to run

concurrently.

3. An information given by the maternal grandmother of

the victim (PW-7) through a communication addressed to the

Senior Superintendent of Police, Gaya dated 26.06.2014, led to

registration of Buniyadganj P.S. Case No. 54 of 2014, disclosing

commission of offence punishable under Section 363 read with

Section 34 of the Indian Penal Code. According to the said

information, on 22.06.2014, the victim, a minor girl, was found

missing from her house and did not return till late in the night. On

23.06.2014, she got a sanha registered vide sanha No. 342 in

Buniyadganj Police Station regarding the missing of the victim.

She suspected that these appellants, Jitendra Chaudhary, Raju

Kumar Yadav and Dharmendra Kumar had in a conspiracy

kidnapped the victim and killed her. The reason behind such

suspicion was previous disputes and threats issued by them. It is

the prosecution's case that during the course of investigation, the Patna High Court CR. APP (DB) No.702 of 2018 dt.30-01-2024

confessional statement of the appellant Jitendra Chaudhary @

Jitendra Kumar Chaudhary was recorded on 28.06.2014, leading to

recovery of the dead body of the deceased on the same date from a

drain adjacent to railway line. The dead body of the victim was

identified by the informant. Consequent upon the recovery of the

dead body of the deceased in the background of the confessional

statement made by the appellant Jitendra Chaudhary @ Jitendra

Kumar Chaudhary, Sections 376 and 201 of the IPC were added

in the FIR. An inquest report was prepared and the dead body was

sent for postmortem examination. It is worthwhile mentioning that

in his confessional statement (Ext. 8) the appellant Jitendra

Chaudhary @ Jitendra Kumar Chaudhary is said to have disclosed

that he had illicit relationship with the victim's aunt (PW-5). The

victim had once witnessed both of them in compromising position.

Being afraid that the victim might disclose about their relationship,

the appellant Jitendra Chaudhary @ Jitendra Kumar Chaudhary

called her in a factory where all these appellants worked. The

appellant Jitendra Chaudhary @ Jitendra Kumar Chaudhary and

other two appellants subjected the victim to sexual intercourse

because of which she had become unconscious. They later killed

the deceased, packed the dead body in a plastic bag and threw the

dead body of the deceased in the drain. He also , said to have, Patna High Court CR. APP (DB) No.702 of 2018 dt.30-01-2024

disclosed that after committing the crime, he and his accomplices

returned but the appellant Dharmendra Kumar met with an

accident somewhere and was undergoing treatment. As has been

noted above, the disclosure to the aforesaid effect led to recovery

of the dead body of the deceased. The police submitted

chargesheet on completion of investigation against these appellants

for commission of the offences punishable under Section 376(2)

(g), 302, 201 read with Section 34 of the IPC and Section 4 and 6

of the POCSO Act. Cognizance was subsequently taken of the

aforesaid offences. The appellants were charged of commission of

offences under Section 376 D, 302 and 201 read with Section 34 of

the IPC and Section 6 of the POCSO Act. The appellants denied

the charges and claimed to be tried.

4. At the trial, the prosecution got examined altogether

11 witnesses including the informant (PW-7), the Investigating

Officer who had committed the investigation (P- 8), another

Investigating Officer who had submitted the chargesheet (PW-1),

the doctor who had conducted postmortem examination (PW-3),

the victim's aunt (PW-5). The victim's mother and her father

deposed at the trial as PWs 2 and 3. PW-6 happened to be the

maternal uncle of the deceased. PW-6 deposed at the trial on the

point of seizure of a mobile phone from the possession of the Patna High Court CR. APP (DB) No.702 of 2018 dt.30-01-2024

appellant Jitendra Chaudhary. Further, PW-9 had typed the

information dated 26.06.2014, which was sent to the

Superintendent of Police, Gaya and is a formal witness. PW 10

proved the Sanha entry dated 23.06.2014. PW-11 has brought the

sanha entry to the court for production.

5. Apart from the oral evidence of the aforementioned

prosecution witnesses, the prosecution brought on record

following documentary evidence to substantiate the charges:-

        S. No. Exhibit No.                               Description
        1.      Exhibit-1     P.M. Report dt. 29.06.2014 of Anjali Kumari deceased.

2. Exhibit-1/4 P.M. Report dt. 30.06.2014 of Anjali Kumari deceased.

3. Exhibit-2 Signature of Ramrati Devi on written statement.

4. Exhibit-3 Endorsement of statement of F.I.R.

5. Exhibit-4 Formal F.I.R.

6. Exhibit-5 Written report of F.I.R.

7. Exhibit-6 Inquest report

8. Exhibit-6/1 Petition written by Suman Jha A.S.I. dt. 28.11.2016

9. Exhibit-7 SDE No. 342 of Buniyadganj P.S.

10. Exhibit-8 Confessional statement of Jitendra Choudhary

6. After closure of the evidence of the prosecution

witnesses, the appellant were questioned under Section 313 of the

CrPC, so as to give them an opportunity to explain the

incriminating circumstances emerging against them, based on the

evidence adduced at the trial. The appellant reiterated their plea of

innocence and answered the said questions in negative. Patna High Court CR. APP (DB) No.702 of 2018 dt.30-01-2024

7. The trial court after having evaluated the evidence

adduced at the trial has convicted the appellants and sentenced

them to imprisonment and fine as has been noted herein above.

8. Mr. Ajay Kumar Thakur, learned counsel appearing

on behalf of the appellants has submitted that the trial court has

erroneously convicted the appellants based on the so called

confessional statement of the appellant Jitendra Chaudhary said to

have been obtained by them when he was in police custody. He

has argued that the trial court ought not to have marked as exhibit

the entire confessional statement said to have been made by the

appellant before the police, the same being not admissible in

evidence. He contends that only such part of the confessional

statement of an accused is admissible in evidence under Section 27

of the CrPC which leads to discovery of a fact. He has secondly

submitted that in no case confession made by the appellant

Jitendra Chaudhary while in police custody could have been used

to convict the two other appellants, namely, Raju Kumar Yadav

and Dharmendra Kumar. He has argued that as against the

appellant Raju Kumar Yadav and Dharmendra Kumar, there is no

evidence at all over and above the so called confessional statement

of the appellant Jitendra Chaudhary. He has also argued that failure

on the part of the police to prepare panchanama at the place of Patna High Court CR. APP (DB) No.702 of 2018 dt.30-01-2024

occurrence demolishes the entire case of the prosecution of

recovery of dead body of the deceased based on the disclosure

made by the appellant Jitendra Chaudhary in his confessional

statement. He has also argued that the confessional statement of

the appellant Jitendra Chaudhary was not recorded in the presence

of any Magistrate or any independent witness, and is therefore not

admissible in evidence. In support of his submissions, he has relied

on the Supreme Court's decisions in the case of Subramanya v.

State of Karnataka reported in 2022 SCC OnLine SC 1400 and in

the case of Ramanand v. State of U.P. reported in 2022 SCC

OnLine SC 1396. Referring to these decisions, he has submitted

that it was incumbent upon the Investigating Officer to have

prepared the seizure memo and the confessional statement ought to

have been recorded in the presence of independent witnesses.

Relying on the Supreme Court's decision, in case of Venkatesh

and Ors. Vs. State of Karnataka reported in (2023) Cr.LJ 183, he

has argued that the confessional statement as a whole ought not to

have been exhibited by the trial court. He has also relied on the

Supreme Court's decision in the case of Rajesh v. State of M.P.,

reported in 2023 SCC OnLine SC 1202. He has submitted that

there is no evidence to the effect that the appellant was arrested by

the police before his confessional statement was recorded. In such Patna High Court CR. APP (DB) No.702 of 2018 dt.30-01-2024

circumstances, the confessional statement of the appellant cannot

be taken into evidence. Referring to the above decisions, in the

facts and circumstances of the case, he has submitted that the chain

of circumstances cannot be said to have been proved to reach a

definite conclusion that the appellants were guilty of the offences

of which they were charged with.

9. Learned Additional Public Prosecutors appearing on

behalf of the State have argued that it is evident from the

confessional statement of the appellant Jitendra Chaudhary (Ext.

8) that the same was voluntary without any coercion. Based on the

disclosure made by him, the dead body of the victim was

recovered which was duly identified by the informant herself. The

prosecution's witnesses have supported the prosecution's case.

According to them, in the present case the chain of circumstances

are complete and conclusively directed towards the guilt of these

appellants.

10. We have perused the impugned judgment and order

of the trial court as well as the lower court's records including the

evidence adduced at the trial carefully. We have given our

thoughtful consideration to the rival submissions advanced on

behalf of the parties. It is evident from the materials on record that Patna High Court CR. APP (DB) No.702 of 2018 dt.30-01-2024

the entire case of the prosecution against these appellants is based

on

(i). The confessional statement of the appellant Jitendra

Chaudhary. @ Jitendra Kumar Chaudhary.

(ii) recovery of the dead body of the deceased from a drain, and,

recovery of a mobile phone from the possession of the appellant

Jitendra Chaudhary. @ Jitendra Kumar Chaudhary.

11. We are convinced with the submissions advanced on

behalf of the appellants that in no case, the confession of appellant

Jitendra Chaudhary could have been used against other co-accused

persons, namely, Raju Kumar Yadav and Dharmendra Kumar. We

are satisfied, based on materials on record that there is absolutely

no evidence against the appellants Raju Kumar Yadav and

Dharmendra Kumar other than the confessional statement of the

appellant Jitendra Chaudhary, said to be leading to recovery of the

dead body of the victim.

12. As regards the confessional statement of the

appellant Jitendra Chaudhary, so far as the same relates to his

conviction, we find substance in the submissions advanced on his

behalf that the trial court ought not to have exhibited the entire

confessional statement rather could have marked as exhibit only

such part of the said confession which could be said to have led to Patna High Court CR. APP (DB) No.702 of 2018 dt.30-01-2024

discovery of a fact. In the present case, it is the prosecution's case

that disclosure of Jitendra Chaudhary led to recovery of the dead

body of the deceased from a drain. It is manifest from the record

that no panchnama was prepared at the place of occurrence after

the alleged recovery of the dead body of the deceased. The

confessional statement was not recorded by the police in presence

of any independent witness. The Supreme court in case of

Subramanya v. State of Karnataka (supra) has held in paragraph

84 as under:-

"...If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama Patna High Court CR. APP (DB) No.702 of 2018 dt.30-01-2024

that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter..."

13. Mr. Thakur has laid great emphasis on his

submission that no arrest memo was prepared. The prosecution

failed to establish that any arrest memo was prepared and the

appellant Jitendra Chaudhary has made his confessional statement Patna High Court CR. APP (DB) No.702 of 2018 dt.30-01-2024

when he was in police custody, and, therefore, no part of the so

called confessional statement of the appellant can be used in

evidence. In case of Subramanya v. State of Karnataka (supra),

the Supreme Court has led down the conditions necessary for

applicability of Section 27 of Evidence Act as under:-

1) Discovery of fact in consequence of an information received from accused;

2) Discovery of such fact to be deposed to;

3) The accused must be in police custody when he give information; and

4) So much of information as relates distinctly to the fact thereby discovered is admissible.

14. After having gone through the circumstances in

which the prosecution has claimed to have recorded the

confessional statement of the appellant Jitendra Chaudhary and the

recovery of the dead body has been made so as to link the said

recovery with the disclosures made in the confessional statement,

in our opinion, the prosecution cannot be said to have established

the charges against the appellant Jitendra Chaudhary. Apparently

the police did not record confessional statement of the appellant in

the presence of any independent witnesses. It did not prepare the

panchnama at the place of recovery of the dead body of the

deceased. The motive behind the occurrence, according to the Patna High Court CR. APP (DB) No.702 of 2018 dt.30-01-2024

prosecution, for the first time emerged in the confessional

statement of the appellant Jitendra Chaudhary i.e. the victim

having seen the appellant Jitendra Chaudhary and PW-5 in

compromising position. The said part of the prosecution's case has

not been proved.

15. In the facts and circumstances noted above, we do

not find safe to uphold the conviction of appellant Jitendra

Chaudhary @ Jitendra Kumar Chaudhary also.

16. In the result these appeals are allowed.

17. Accordingly, the impugned judgment of conviction

dated 17.04.2018 and the order of sentence dated 24.04.2018,

passed by learned 1st Additional District & Sessions Judge-cum-

Special Judge (POCSO Act), Gaya, arising out of Buniyadganj P.S.

Case No. 54 of 2014, POCSO Case No. 12 of 2015 are hereby set

side.

18. The appellants are in custody. Let them be released

from jail forthwith, if not required in any other case.

(Chakradhari Sharan Singh, J)

( G. Anupama Chakravarthy, J) Nishant/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          31.01.2024
Transmission Date       31.01.2024