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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and JITENDRA KUMAR, JJ.
Criminal Appeal (DB) Nos. 107 with 140 and 326 of 2016
(13.8.2024)
Surendra Singh @ Surendra Kumar @ Surendar Singh @ Surendar Kumar (in 107)
Kameshwar Singh & Anr. (in 140)
Binod Kumar @ Vinod Prasad (in 326) ... Appellants
vs.
State of Bihar ... Respondent (in all)
Criminal Trial – Motive – offence alleged under Sections 364A/34, 120B, 302 and 201 of the I.P.C. and Section 27, Arms Act – motive may not assume great importance in a murder case as only the perpetrator of the crime can explain about his motive but in a case of circumstantial evidence, motive provides an additional link in coming to a cogent conclusion about the guilt of the accused. (Para 19)
Indian Penal Code, 1860 – Sections 364A/34, 120B, 302 and 201 and Arms Act – Section 27 – Murder – circumstantial evidence – the primary principle is that the circumstances from which the conclusion of guilt is to be drawn should be fully established – the Hon'ble Supreme Court has very pithily differentiated between "must" and "may be" – it was explained that it was not only grammatical but a distinction between "may be proved" and "must be proved" – before a Court can convict a person, the distance between "may be" and "must be" is required to be blurred to avoid any vague conjectures and come to a sure conclusion – the five golden principles, namely, (I) that the facts should be conclusively established; (II) the facts so established should be consistent only with the hypothesis of the guilt to the accused, i.e. to say they should not be explainable on any other hypothesis except that the accused is guilty; (III) the circumstances should be of a conclusive nature and tendency; (IV) they should enclose every possible hypothesis except one to be proved; and (V) 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 – in the present case, the prosecution has not been able to muster the requirements necessary for conviction, i.e., to tie the strings together – (i) there is an inordinate delay in lodging the F.I.R., (ii) the appellants had no motive to kill the deceased, (iii) the identification of the dead body as that of the deceased is doubtful, (iv) the recovery of the dead body pursuant to the confession of two of the appellants having become doubtful and the crevices and crannies having been left wide open, the prosecution has failed miserably to bring home the charges against the appellants – judgment and order of conviction and sentence set aside – appellants set at liberty – appeals allowed. (Paras 59 to 63)
Mohd. Inayatullah Vs. State of Maharashtra (1976) 1 SCC 828; Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116; Hanumant Vs. State of M.P., AIR 1952 SC 343; Tufail @ Simmi Vs. State of U.P., (1969) 3 SCC 198; Ram Gopal Vs. State of Maharashtra, (1972) 4 SCC 625 – Relied.
Ashutosh Kumar, J.—All the three appeals have been heard together and are being disposed of by this common judgment.
2. There was no appearance on behalf of the appellant/Surendra Singh @ Surendra Kumar @ Surendar Singh @ Surendar Kumar in Cr. Appeal (DB) No. 107 of 2016.
3. Mr. Sunil Kumar, the learned Advocate has appeared for appellant/Binod Kumar @ Vinod Prasad in Cr. Appeal (DB) No. 326 of 2016. Mr. Aruni Singh, the learned Advocate has appeared for the appellants/ Kameshwar Singh and Upendra Singh in Cr. Appeal (DB) No. 140 of 2016.
4. At our request, both Mr. Sunil Kumar and Mr. Aruni Singh have assisted us in the appeal of appellant / Surendra Singh @ Surendra Kumar ( Cr. Appeal (DB) No. 107 of 2016).
5. The State has been represented by Mr. Abhimanyu Sharma and Mr. Bipin Kumar, the learned Additional Public Prosecutors in all the three appeals.
6. Mr. Paras Nath, the learned Advocate has appeared on behalf of the informant in all the three appeals.
7. By Judgment dated 08.12.2015 passed by the learned Additional Sessions Judge-XI, Patna in Sessions Trial No. 840 of 2014, all the four appellants have been convicted under Sections 364A/34, 120B, 302 and 201 of the Indian Penal Code and 27 of the Arms Act. By order dated 09.12.2015, they have been sentenced to undergo imprisonment for remainder of their lives under Section 302 of the Indian Penal Code, to pay a fine of Rs.30,000/- which would be given to the family of the victim. For the offence under Section 201 of the Indian Penal Code, the appellants have been sentenced to undergo R.I. for three years, to pay a fine of Rs.5000/- which amount shall also be given to the aggrieved family. For the offence under Section 120B and 364A/34 of the Indian Penal Code, the appellants have been saddled with imprisonment for life under each of the counts and to pay a fine of Rs.25,000/- to the aggrieved family. For the offence under Section 27 of the Arms Act, each of the appellants have been sentenced to undergo R.I. for four years. The sentences have been ordered to run concurrently.
8. One Ved Prakash, a student of Intermediate at B.S. College, Danapur is alleged to have been killed at the hands of the appellants. The sister of the deceased viz, Punam Devi (PW-3) had lodged a typed written report addressed to the Officer-incharge of Digha Police Station on 01.05.2014 alleging that the appellants/ Surendra and Vinod along with their friends had come to her house on 21.04.2014 and persuaded the deceased to go along with them for him to meet the mother of Surendra. Incidentally, the mother of Surendra is the own aunt of the deceased. Permission was granted to the deceased by his sister (PW-3) and her husband/Jai Prakash Kumar (PW-2) who were assured that after a couple of days, the deceased would be sent back home. They left the house on 21.04.2014, in the evening of which PW-3 had a telephonic talk with the deceased. Appellant/ Surendra had also talked to PW-3 and hada convinced her that she ought not to worry as the deceased would be sent back home on the truck of appellant/Vinod. Later, when the deceased did not arrive home, PW-3 frantically called the deceased as also Surendra but their telephones were out of reach. After about 2 to 3 days i.e. on 25.04.2014, appellant / Surendra responded to the telephone call and expressed his ignorance about the deceased. He told PW-3 that the deceased had already left for home along with appellant/Vinod. Becoming suspicious, PW-3 informed her father, who is also the father of the deceased, namely, Ashok Kumar Singh (PW-1), an employee in a private firm who came back from his place of work at Orrisa and tried to find out his son. In this process, appellant /Surendra was questioned intensively when he expressed that perhaps the deceased could be recovered, if rupees ten lakhs is arranged for, as the victim has been kidnapped by appellant /Vinod. On the family of the deceased becoming sanguine that the appellants had kidnapped the victim, the written
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