Patna High Court
Manoj Kumar Mishra @ Manoj Mishra @ Manoj ... vs The State Of Bihar on 6 March, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.915 of 2022
Arising Out of PS. Case No.-164 Year-2015 Thana- DEHRI TOWN District- Rohtas
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Manoj Kumar Mishra @ Manoj Mishra @ Manoj Mishr S/O Late Rajbansh
Mishra @ Raj Vansh Mishr R/O Village- Nawadih, P.S- Indrapuri, District-
Rohtas
... ... Appellant
Versus
1. The State of Bihar
2. Anirudh Prasad @ Anirudh Prajapati S/O Jagarnath Prajapati R/O Village-
Nawadih, Post and P.S- Indrapuri, District- Rohtas
3. Shanti Devi W/O Sudama Prajapati @ Sudama Prasad R/O Village-
Nawadih, Post and P.S- Indrapuri, District- Rohtas
4. Indrasani Devi W/O Jagannath Prajapati R/O Village- Nawadih, Post and
P.S- Indrapuri, District- Rohtas
5. Malti Devi W/O Anirudh Prasad @ Anirudh Prajapati R/O Village-
Nawadih, Post and P.S- Indrapuri, District- Rohtas
6. Sonam Kumari D/O Kripa Shankar Prajapati R/O Village- Nawadih, Post
and P.S- Indrapuri, District- Rohtas
... ... Respondents
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Appearance :
For the Appellant : Mr.Surendra Kumar Choubey, Advocate
For the State : Mr.Binod Bihari Singh, Addl. PP
For the resp nos. 2 to 6 : Mr.Vinod Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 06-03-2024
Heard learned counsel for the appellant, learned counsel
for respondent nos. 2 to 6 and Mr. Binod Bihari Singh learned
Additional Public Prosecutor for the State.
2. Informant of the case is in appeal before us. He is
aggrieved by and dissatisfied with the judgment dated 24.11.2020
passed by learned 15th Additional District & Sessions Judge,
Patna High Court CR. APP (DB) No.915 of 2022 dt.06-03-2024
2/11
Sasaram, Rohtas in Sessions Trial No. 488 of 2015 arising out of
Dehri (Indrapuri) PS Case No. 164 of 2015, in so far as by the
judgment under appeal, learned trial court has acquitted accused
nos. 2 to 6 (respondent nos. 2 to 6) from the charges under
Sections 302 and 201 of the Indian Penal Code (in short 'IPC').
To complete the records, it is worth-mentioning that altogether
eight accused persons were chargesheeted in this case and
investigation against one accused namely Abhimanyu Prajapati
was kept pending. Later on, the case of accused Vinita Kumari and
Abhimanyu Prajapati were sent to the Juvenile Justice Board,
Sasaram considering them juvenile under the Juvenile Justice
(Care & Protection of Children) Act. Out of remaining seven
accused who were chargesheeted under Section 302 and 201/34
IPC, one accused namely Jagannath Prajapati died during
pendency of the case, hence, the proceeding against him was
dropped vide order dated 12.03.2020. Thus, lastly six accused
faced trial in this case. On completion of trial, the learned trial
court has been pleased to convict the accused Sudama Prajapati
whereas, respondent nos. 2 to 6 in this case have been acquitted
from the charges.
3. Learned counsel for the appellant has assailed the
impugned judgment on the ground that the learned trial court has
Patna High Court CR. APP (DB) No.915 of 2022 dt.06-03-2024
3/11
failed to appreciate the evidences of the prosecution which were
available on the record.
4. The prosecution case as disclosed in the written report
submitted by Manoj Kumar Mishra, father of the deceased who
has been examined as PW-9 in the trial states that on 09.04.2015,
in the night at about 11.00 pm, three persons came at his house
whom he identified as Sudama Prajapati, Abhimanyu Prajapati and
one unknown co-accused who called his son Dhiraj Kumar Mishra
by his name whereafter his son came out of his house and they
took him with them. It is alleged that when his son did not return
and the aforesaid persons were not saying anything about his son,
the informant apprehended that some untoward incident might
have occurred.
5. It is evident from the written report that the son of the
informant had gone missing since 09.04.2015 at 11.00 p.m.
(night). The written report was submitted in the Police Station on
10.04.2015
, however, the formal FIR (exhibit-7) would show that
the information was made available at the Police Station on
11.04.2015 at 11.00 hours and the FIR was also registered
simultaneously giving rise to Dehri (Indrapuri) PS Case No. 164 of
2015.
Patna High Court CR. APP (DB) No.915 of 2022 dt.06-03-2024
6. In the written report (exhibit-3 marked with
objection), the informant (PW-9) alleged that in the previous night
at about 11.00 p.m. Sudama Prajapati son of Jagannath Prajapati
and Abhimanyu Prajapati son of Sudama Prajapati together with
one person whom the informant could not identify had come to his
house and called his son Dhiraj Kumar Mishra by his name. When
Dhiraj Kumar Mishra came out they took him with them
whereafter his son had not returned home. On query made from
them, those persons were not saying anything, therefore, the
informant apprehended some untoward incident.
7. Upon investigation of the case, the police submitted
chargesheet against eight accused persons showing the
investigation pending against accused Abhimanyu Prajapati.
Cognizance was taken under Section 302 and 201/34 IPC on
21.07.2015, the records were committed to the Court of Sessions.
Since the accused Vinita Kumari and Abhimanyu Prajapati were
found juvenile, their cases were separated and sent to the Juvenile
Justice Board, Sasaram. As stated above, the charges were framed
against seven accused persons out of them one died. The rest of the
six accused denied the charges and claimed to be tried.
8. In course of trial, the prosecution examined as many
as thirteen witnesses and some documents such as, postmortem
Patna High Court CR. APP (DB) No.915 of 2022 dt.06-03-2024
report (exhibit-1), injury report of accused Sudama Prajapati
(exhibit-2), written report of the informant (exhibit-3),
confessional statement of co-accused Sudama Prajapati (exhibit-
4), inquest report (exhibit-5), signatures of witnesses Santosh
Mishra and Kamta Mishra over the inquest report (exhibit-5/A and
exhibit-5/B), seizure list (exhibit-6) and the signatures of the
witnesses Sanjay Singh and Ram Chandra Mishra over the seizure
list (exhibit-6/A and exhibit-6/B), formal FIR (exhibit-7) were
marked. Some material exhibits have also been produced on behalf
of prosecution. Material exhibit-(I) is white rope, I/1 is red rope,
exhibit-II is clothes of red and blue colour.
9. The defence examined three witnesses namely,
Krishna Singh DW-1, Ram Chandra Mishra DW-2 and Ram Pukar
Yadav DW-3. The defence also exhibited two documents viz. FIR
(exhibit-A) and report of B.D.O (exhibit-B).
10. On examination of the prosecution evidences, the
learned trial court found that death of the deceased Dhiraj Kumar
Mishra has not been denied by anyone. All the evidences have
disclosed the fact of the death of deceased, the inquest report
(exhibit-5) and the postmortem report (exhibit-1) also proved this
fact. The postmortem report and the deposition of the medical
officer (PW-5) revealed that the cause of death of Dhiraj Kumar
Patna High Court CR. APP (DB) No.915 of 2022 dt.06-03-2024
Mishra is asphyxia by strangulation. The learned trial court also
noticed from the statements of the witnesses as well as from the
inquest report that the dead body of the deceased was found from
the water of canal, therefore, it has been concluded that Dhiraj
Kumar Mishra did not die naturally and that his death was result of
offence committed against him. So far as this aspect of the matter
is concerned, no challenge has been thrown to this finding and we
do not find any infirmity much less perversity in the finding of the
learned trial court.
11. While examining the evidences produced on behalf
of prosecution to find out as to who among the accused persons
has committed the murder of the deceased Dhiraj Kumar Mishra,
learned trial court has noticed that in their depositions PW-1, PW-
2, PW-3, PW-4 and PW-7 have deposed during their examination-
in-chief that accused Sudama Prajapati, Abhimanyu Prajapati and
Aniruddha Prajapati came at the door of the deceased on
09.04.2015 at about 11.00 pm. and called him by his name and
took him with them whereafter Dhiraj Kumar Mishra did not
return. Having said so, the learned trial court has found that in his
written report which was submitted to the police one day after the
occurrence, the informant (PW-9) had taken name of only two
accused persons who were Sudama Prajapati and his son
Patna High Court CR. APP (DB) No.915 of 2022 dt.06-03-2024
Abhimanyu Prajapati and had further stated that there was one
other person who could not be identified by him. The learned trial
court therefore, observed that there is suspicion on the point of
inclusion of name of third accused Aniruddha Prajapati who had
not been named by the informant himself in the written report
leading to lodging of the FIR.
12. We have found from the depositions of PW-1, PW-2,
PW-3, PW-4 and PW-7 that they have stated about the presence of
Aniruddha Prajapati but these witnesses were either not examined
by the IO immediately after lodging of the FIR or were examined
at a belated stage or were not at all examined.
13. PW-1 has stated in his cross-examination that he was
not aware as to whether the police had arrived in the village on 10 th
April, 2015. He was aware that police had arrived on 11 th April,
2015 at 4.00 pm (evening) but he was not aware that police had
gone to the house of Dhiraj Kumar Mishra and whether the police
was inquiring about the occurrence from the people or not.
14. PW-2 has also stated in paragraph 18 of his
deposition that Darogaji had not come to him, he had met Darogaji
on 11.04.2015 at the canal where the dead body was found but
Darogaji had not recorded his statement. He could not say that
whose statements were recorded by Darogaji.
Patna High Court CR. APP (DB) No.915 of 2022 dt.06-03-2024
15. PW-3 Umrawati Kunwar who is the grand-mother of
the deceased. She has claimed that after recovery of the dead body,
Darogaji had recorded her statement at her house but the Daroga
who has been examined in course of trial as PW-10 has stated in
paragraph '25' that he had not recorded the statement of the
witness Umrawati Kunwar.
16. Regarding PW-4, the IO has stated in paragraph '21'
of his cross-examination that this witness had not stated to him
about Anirudhha Prajapati taking away Dhiraj Kumar Mishra. He
had not recorded the time of recording of the statement of PW-4.
Nilam Devi (PW-7) has also named Aniruddha Prajapati in her
examination-in-chief. She is mother of the deceased and wife of
PW-9. She has stated in paragraph '15' of her evidence that
Darogaji had come to her house on 10th April, 2015 at 8.00 pm and
had recorded her statement. She got information regarding
recovery of the dead body of her son on 11.04.2015 at 1.30 pm
from the husband of Sarpanch Rekha Devi. At that time her
husband and Dewar were present in the house. They went outside
the house, but she had not gone. Regarding this witness, the IO has
stated in paragraph '19' of his evidence that Nilam Devi had not
made any statement before him that she had identified Abhimanyu
Patna High Court CR. APP (DB) No.915 of 2022 dt.06-03-2024
Prajapati, Aniruddha Prajapati and Sudama Prajapati in the light of
bulb.
17. From a threadbare reading of the evidences available
on record, this Court finds that as regards complicity of Aniruddha
Prajapati in the matter of taking away of the victim boy on
09.04.2015 at 11.00 pm, the prosecution witnesses have improved
upon in course of trial. They have been contradicted by the IO
(PW-10). The presence of Aniruddha Prajapati is, therefore, not
proved beyond all reasonable doubts.
18. We further find from the discussions made in the
judgment of the learned trial court and the materials available on
record that the learned trial court has rightly appreciated the
evidence of IO (PW-10) and held that the evidence of the IO is
based on his investigation which in turn is based on the
confessional statement of the accused Sudama Prajapati.
19. The learned trial court is correct in holding that
though the entire confessional statement before the police would
not be admissible in evidence but the part of the confessional
statement made before the police leading to recovery of the dead
body shall be admissible in evidence as the same would be
protected under Section 27 of the Evidence Act.
Patna High Court CR. APP (DB) No.915 of 2022 dt.06-03-2024
20. We find from the discussions made in the judgment
of the learned trial court that the learned trial curt has discussed the
circumstances which started from the last seen theory in which
accused Sudama Prajapati and Abhimanyu Prajapati were seen
with the deceased Dhiraj Kumar Mishra on 09.04.2015 at about
11.00 pm till recovery of the dead body of Dhiraj Kumar Mishra
from the canal. The learned trial court has upon appreciation of the
prosecution evidences rightly concluded that the chain of
circumstantial evidence is not complete against respondent nos. 2
to 6. We would, however, hasten to add here that our agreeing with
the view of the learned trial court as regards the findings recorded
in respect of respondent nos. 2 to 6 shall not cause any prejudice to
the case of Sudama Prjapati.
21. Having said so, the learned trial court has found and
in our opinion rightly so that so far as involvement of other
accused persons are concerned, except that their names have been
brought in the case on the basis of confessional statement of the
accused Sudama Prajapati, there is no other material to connect
them with the killing of the deceased Dhiraj Kumar Mishra.
22. We find that the learned trial court has taken a view
that in this case the confessional statement has been made before
the police, therefore, its part not leading to recovery shall have no
Patna High Court CR. APP (DB) No.915 of 2022 dt.06-03-2024
evidentiary value against accused making it and it shall also not
have any evidentiary value against the co-accused persons.
23. We are of the considered opinion that the entire
confessional statement of Sudama Prajapati (exhibit-4) cannot be
taken as admissible in evidence and the learned trial court has not
committed any error in its appreciation. It is only that part of the
confessional statement which would be covered under Section 27
of the Evidence Act shall be admissible in evidence. In the entire
prosecution evidence, no evidence has come on the record against
respondent nos. 2 to 6, therefore, this Court finds no error in the
impugned judgment. No interference is required.
24. This appeal has no merit. It is dismissed accordingly.
(Rajeev Ranjan Prasad, J)
( G. Anupama Chakravarthy, J)
vinita/sushma-
AFR/NAFR
CAV DATE
Uploading Date 07.03.2024
Transmission Date 07.03.2024
