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IN THE HIGH COURT OF JUDICATURE AT PATNA
ARVIND SRIVASTAVA and SUNIL DUTTA MISHRA, JJ.
Criminal Appeal (DB) No.108 and 11 of 2018
(8.12.2023)
Tunna Choudhary (in 108)
Sukari Devi & Ors. (in 11) ... Appellants
vs.
State of Bihar ... Respondent
(in both)
Criminal Procedure Code, 1973 – Section 374 – Appeal against conviction – Appellate Court is empowered to reappreciate entire evidence on record for the purpose of ascertaining as to whether accused persons or any of them had committed any offence or not – If impugned judgment and order is ultimately found to be clearly unreasonable and perverse then such judgment and order can be set aside by appellate court. (Para 18)
Criminal Law – Circumstantial evidence – For proving a crime, it is not necessary that it must be seen to have been committed or must be proved by a direct ocular evidence – Offence can be proved by circumstantial evidence also – Accused can be punished if he is found guilty even in cases of circumstantial evidence provided prosecution is able to prove beyond reasonable doubt complete chain of events and circumstances which definitely points towards involvement and guilty of suspect or accused. (Para 27)
Indian Penal Code, 1860 – Sections 302 and 201/34 – Indian Evidence Act, 1872 – Section 27 – Criminal Procedure Code, 1973 – Section 313 – Murder and disappearance of evidence – Common intention – Life sentence – There were no eye-witnesses to incident and case is based on circumstantial evidence – Burden is always on prosecution to prove its case beyond reasonable doubt on the basis of legally admissible evidences – Law does not permit courts to punish accused on the basis of suspicion alone – Greater the felony stricter the degree of proof – There is nothing on record to indicate that what was motive of appellants to kill son of informant – Prosecution has failed to prove motive of appellants – Inimical relation with accused does not show strong motive for killing child of informant but it may be one of reasons to implicate entire family members (appellants) as accused when he got opportunity – There is no material to show that all accused had common intention and they had participated in offence, intention itself not being proved and their participation in it is not made out of credible evidence – Without a clear finding regarding common intention and participation therein by each of accused members, there can be no conviction with aid of Section 34 IPC – There is material contraction in deposition of I.O. and informant – Sole connecting evidence against appellants was recovery based on disclosure of co-accused is not sufficient to qualify as 'fact discovered' within meaning of Section 27 of Evidence Act – Previous enmity is a double-edged sword – On one hand, it provides motive to crime and on the other, there is a possibility of false implication – Examination of accused under Section 313 of Cr.P.C. should not be held in perfunctory manner – Logical inference through material on record does not probabilize contingency that except accused none else had committed crime in question – All appellants acquitted of charges leveled against them – Appeals allowed. (Paras 27, 29, 32, 34, 35, 39, 40, 41, 42, 45 and 46)
Indian Evidence Act, 1872 – Section 24 – Confessions would be voluntary if it is made by accused in a fit state of mind, and if it is not caused by any other inducement, threat or promise which has reference to charge against him, proceeding from a person in authority – Whether or not confession was voluntary would depend upon facts and circumstances of each case, judged in light of Section 24 of Evidence Act – A confession cannot be used against accused person unless Court is satisfied that it was voluntarily and at that stage question whether it true or false does not arise. (Paras 36, 37 and 38)
Sunil Dutta Mishra, J.—Both the aforesaid appeals have been taken up together and are being disposed of by this common judgment.
2. We have heard the learned counsel for the appellants, learned Additional Public Prosecutors for the State assisted by learned counsel for the informant.
3. All the six accused persons/ appellants namely, Tunna Choudhary, Baban Choudhary, Sunita Devi, Rajendra Choudhary, Ashok Choudhary and Sukari Devi were tried by the learned Additional Sessions Judge, VIth, Buxar in Sessions Trial No. 388 of 2013, arising out of Sikraul P.S. Case No. 18 of 2013 for the offences punishable under Sections 302 and 201/34 of the Indian Penal Code.
4. By the judgment and order dated 18.11.2017, the learned Additional Sessions Judge- VIth, Buxar convicted the accused Tunna Choudhary and Baban Choudhary under Section 302 of the Indian Penal Code and all the six accused persons have been convicted under Section 201 of the Indian Penal Code and they have been sentenced vide order dated 24.11.2017 in the manner stated below:
(i) Accused Tunna Choudhary and Baban Choudhary, the appellants in Cr. Appeal (DB) No. 108 of 2018 have been sentenced to undergo imprisonment for life and fine of Rs. 25,000/- each under Section 302 of the Indian Penal Code and they have also been sentenced seven years rigorous imprisonment and Rs. 5000/- fine under Section 201 of the Indian Penal Code.
(ii) The accused Sukari Devi has been sentenced to undergo imprisonment for 5 years and fine of Rs. 5000/-, accused Sunita Devi has been sentenced to undergo rigorous imprisonment of 6 years and fine of Rs. 2000/-, the accused Rajendra Choudhary and Ashok Choudhary have been sentenced to undergo rigorous imprisonment of 1 year and Rs. 5000/- fine under Section 201 of the Indian Penal Code and in default of payment of fine the accused have to suffer further imprisonment of two months and the fine amount shall be paid to the informant Mangal Choudhary. The sentences of accused Tunna Choudhary and Baban Choudhary have been ordered to run concurrently.
5. Aggrieved by the aforesaid judgment and order of their conviction and sentence, two accused persons namely Tunna Choudhary and Baban Choudhary have preferred Cr. Appeal bearing no. 108 of 2018 and four accused persons namely Sukari Devi, Sunita Devi, Rajendra Choudhary and Ashok Choudhary have preferred separate appeal bearing Cr. Appeal No. 11 of 2018.
6. Since the above captioned appeals arise out of common factual matrix and impugned judgment dated 18.11.2017 we are disposing them by this common judgment.
7. The prosecution case, in brief is that one Mangal Choudhary gave fardbeyan at Narhandih village before S.H.O., Sikraul P.S. namely S.I. Ravikant on 29.03.2013 at 17.15 hours to the effect that his son Jyoti Kumar aged about 3 years on 27.03.2013 at 2.00 pm had gone for playing outside his house, but not returned till evening then a search was made with the help of villagers but the same was not successful. The said information was not given to the police station. Second day also search was made in pond and other places of village but the child was not recovered. There was suspicion on Tunna Jee and his family members due to old enmity. On 29.03.2013, he and co-villagers had called Tunnajee Choudhary and questioned him and aggressive villagers assaulted him then he disclosed that on 28.03.2013 after killing the child, dead body was concealed in bamboo clump of Hiralal Choudhary. He and all villagers reached there and started searching the child whose dead body was found in bamboo clump and when dead body was found, Baban Choudhary, father of Tunna tried to flee away but was caught by villagers who became very aggressive and started beating them in which they became injured. Wife of Tunna had already fled away earlier to that. In the meantime, the police reached there and taken them in custody in injured condition and the dead body was taken away from there. It is alleged that with common intention Tunna Ch
The judgment emphasizes the requirement for complete and unimpeachable evidence to prove guilt beyond reasonable doubt in a case of circumstantial evidence.
A conviction based solely on circumstantial evidence requires a complete and unbroken chain, with reasonable doubt favoring the accused.
Provisions of Section 106 of Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within knowledge of a person, burden of proving that fact is upon him.
It is a settled legal proposition that conviction of a person accused of committing an offence, is generally based solely on evidence that is either oral or documentary, but in exceptional circumstan....
In murder cases based on circumstantial evidence, each link must be established beyond reasonable doubt, with all evidence consistently pointing to the guilt of the accused.
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