Judicial Analysis Court Copy Headnote Facts Arguments Court observation

JHARKHAND HIGH COURT
Shree Chandrashekhar and Ratnaker Bhengra, JJ.
Pradeep Manjhi @ Yadav and Ors. —Appellants
versus
State of Jharkhand —Respondent
Criminal Appeal (DB) No1116 of 2018 with
Criminal Appeal (DB) No.1077 of 2018 with
Criminal Appeal (DB) No.1395 of 2018 with
Criminal Appeal (DB) No. 574 of 2019
Decided on 11.4.2022

Advocates:
Counsel for the Parties:
For the Appellants:Mr. A.K. Kashyap, Sr. Advocate [In Cr.A. (DB) No.1116/2018]
For the Appellants:Mr. Madan Prasad, Advocate [In Cr.A. (DB) No.1077/2018]
For the Appellants:Mr. Ashok Kumar Sinha No.4, Advocate [In Cr.A. (DB) No.1395/2018]
For the Appellants:Mr. Md. Zaid Ahmed, Advocate [In Cr.A. (DB) No.574/2019]
For the Respondent: Mrs. Priya Shreshtha, Spl. PP [In all cases]

IMPORTANT POINTS
(1) Kidnapping and murder – It is permissible in law to prosecute accused even though dead body has not been recovered but in absence of corpus delicti what Court looks for is clinching evidence.
(2) Circumstantial evidence – Circumstance of last seen together is not always incriminating to accused – Accused cannot be convicted on the basis of merely last seen evidence.

Headnote:
(A) Indian Penal Code, 1860 – Section 364 read with section 120-B, Section 302 read with Section 120-B, Section 394 read with Section 120-B and 201 – Kidnapping, murder, robbery and conspiracy – Disappearance of evidence – It is permissible in law to prosecute accused even though dead body has not been recovered but in absence of corpus delicti what Court looks for is clinching evidence – If prosecution is successful in proving by cogent and satisfactory proof that victim met a homicidal death, absence of corpus delicti will not by itself be fatal to charge of murder – There is no witness to murder of deceased – In Court, no witness identified appellants as persons who were with deceased – Court can convict accused on the basis of his disclosure statement and recovery of inculpatory materials pursuant thereto – But mere recovery of stolen articles from possession of accused would not prove that accused is guilty of offence of murder – Belated recovery of stolen articles raises a question about their intrinsic evidentiary value – Evidence produced by prosecution to prove that deceased died a homicidal death is not supported by any other corroborative evidence – Prosecution evidence is most wanting on identification of dead body – Conviction and sentence set aside. (Paras 25, 36, 37, 41 to 44)
(B) Criminal Law – Circumstantial evidence – In a case based on circumstantial evidence, circumstances on the basis of which conclusion of guilt is to be drawn must be fully established – Incriminating circumstances should be of conclusive nature and exclude all possible hypothesis except one which must unerringly establish that it was accused who committed crime – Circumstance of last seen together is not always incriminating to accused and in every case possibility of a casual or accidental meeting of accused with deceased must be ruled out before an adverse inference against accused is sought to be raised – There are well measured and tested norms to examine efficacy and applicability of last seen together theory – Accused cannot be convicted on the basis of merely last seen evidence unless prosecution establishes that there are other independent incriminating circumstances available on record which accused has failed to explain satisfactorily and all taken together complete chain of circumstances to draw conclusive inference that accused is guilty. (Paras 26 and 30)
Result: Criminal Appeals allowed. Accused acquitted.

JUDGMENT

Shree Chandrashekhar, J.—The convicts have filed these criminal appeals under section 374(2) of the Code of Criminal Procedure challenging the judgment dated 30th August 2018 and the order of sentence dated 07th September 2018 passed in Sessions Trial Case No. 26 of 2011.

2. In Sessions Trial Case No. 26 of 2011, Pradeep Manjhi @ Yadav, Ashok Singh, Raju Khan @ Firoz Khan and Pintu Kumar Sah are convicted and sentenced to RI for life and fine of Rs.5000/- each under section 364 read with section 120-B of the Indian Penal Code; RI for life and fine of Rs.5000/- each under section 302 read with section 120-B of the Indian Penal Code; RI for 10 years and fine of Rs.5000/- each under section 394 read with section 120-B of the Indian Penal Code and; RI for 3 years and fine of Rs.1000/- each under section 201 of the Indian Penal Code. The aforesaid sentences are with default stipulations on each count that the convicts shall undergo SI for 3 months.

3. Devendra Prasad Yadav who was the owner of Bolero vehicle bearing Registration No. JH 04C 6468 gave an information to the Dumka (Town) PS on 22nd July 2010 that Sujit Mirdha the driver of Bolero vehicle who had left for Asansol with two persons on 20th July 2010 did not come back home till the next day. He however did not follow up the matter with the police and what step was taken by the police is not known though a sanha was registered in the police station.

4. The dead body of one unknown male person lying in an open field at Salanpur in the district of Burdwan (West Bengal) was reported to the police by Swapan Kumar Dawn on 21st July, 2010 at 08:35 AM and on that basis Salanpur UD Case No. 19 of 2010 was registered which was later on renumbered as Salanpur PS Case No. 63 of 2010.

5. Dr. Sati Nath Banerjee who was posted at District Hospital, Asansol conducted postmortem examination on the dead body of an unidentified male on 21st July 2010 at 12:30 PM and found the following injuries:—

(i) Cut throat injury function of upper & middle part of neck. Incised wound 20 cm x 8 cm x vertbra deep from left side of trachea to posterior border of right sternomastoid.

(ii) Linnear bruise ½ cm x 12 cm left side of neck horizontal.”

6. On 07th August 2010, Devendra Prasad Yadav gave a written report to the officer-in-charge of Dumka (Town) PS and on that basis Dumka (Town) PS Case No. 121 of 2010 was registered against unknown.

7. In the wee hours of 22nd August 2010, around 04:30 AM, Pradeep Manjhi and Pintu Kumar Sah who were travelling on a truck with Kamlesh Kumar Raut were quizzed by the police at a police post near Masalia More, Dumka. Two mobile phones were found in possession of Pradeep Manjhi who could not give a satisfactory explanation about the possession of the mobile phones. One of the mobile phones which Pradeep Manjhi was carrying was purchased by the informant for his driver Sujit Mirdha. On suspicion, Pradeep Manjhi was arrested by the police and he suffered a confessional statement before the investigating officer that Ashok Singh, Raju Khan and Pintu Kumar Sah were the other accused who were involved in the theft of Bolero and murder of Sujit Mirdha. Pintu Kumar Sah who was travelling in the same truck with Pradeep Manjhi also gave his confessional statement before Shailesh Prasad who was posted as Sub Inspector of Police at Dumka (Town) PS.

8. The stolen Bolero was recovered from village-Mohanpur, Masjid Mohalla, Thana-Mahagama, District-Godda where the accused themselves led the police. The seizure memo of Bolero was prepared in the presence of Md. Kamal Ansari and Munna Yadav. In his statement before the police, Md. Kamal Ansari stated that Firoz Khan and Suman provided Bolero to him for running on hire basis on the condition that he would pay them rent for the vehicle.

9. On 22nd August 2010, the wife and father of Sujit Mirdha were called at Dumka (Town) PS to identify the vehicle and they were shown the accused who were kept in hazat of the police

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Cases Referred (6)