IMPORTANT POINT
In a case of circumstantial evidence, when circumstances are not established, accused is entitled to benefit of doubt.

JUDGMENT :

Uday Umesh Lalit, J.

1. This appeal challenges the judgment and final order dated 14.07.2017 passed by the High Court of Jharkhand at Ranchi dismissing Criminal Appeal No.887 of 2009 preferred by the appellants herein and thereby affirming their conviction as recorded by the Trial Court in respect of offence punishable under Sections 364-A, 201, 302 read with 34 IPC.

2. According to the prosecution, a minor girl aged about 3½ years went missing on 08.01.2006 while she was playing in front of her house. PW10 Anil Prasad Soni, father of the girl searched for the girl on the first day and thereafter lodged an information vide Sanha No.142/06 dated 09.01.2006 at 9.00 a.m. with the Officer In-charge of Bhurkunda Police Station, based on which a crime was registered vide FIR No.11/06 dated 13.01.2006 under Sections 364 and 365 IPC with Police Station Bhurkunda, S. Div. Ramgarh, District Hazaribagh.

3. According to the prosecution, a call was received by said PW10 on 11.01.2006 at about 1236 Hours, from Ramgarh STD Booth, from an unknown person threatening him that his brother was getting smarter for which said PW10 may have to pay the price. The caller told PW10 that his daughter would reach by the evening and told him not to tell the administration.

4. On the next day i.e. on 12.01.2006 at about 1335 Hours, PW10 again received a call from another STD booth i.e. from Patratu STD Booth, but it was a missed call. It appears that around the same time, another call was received by PW4 Uday Soni, brother of said PW10. The caller threatened said PW4 and told him that the caller had kidnapped his niece. When the caller was asked about the proof of the fact, the caller stated that PW4 could get the proof on the roof of the temple near their house. Thereafter, a poly bag was found on the roof of the temple in which there was one red top and slippers of the girl as well as a threatening letter (Exhibit-II with Mark X – Written Paper of a copy for Identification)

5. It appears that a dead body of the girl was recovered in a black coloured rexin bag from the Dam on or about 18.01.2006 by Khelari Police Station.

Postmortem Report indicated:

“Nylon cloth (make like rassi), red in colour, is tied around the neck. The knot is present on left side of neck which is a fixed knot. After removing the ligature material there is a ligature mark ½ cm width situated around the neck. It is transverse and continues with contusion of soft tissue underneath.

Opinion-(1) Above noted ligature mark is ante-mortem.

(2) Death is due to Asphyxia as a result of strangulation.

(3) Time of Death – Between 3 days to 7 days.”

The dead body of the girl was identified to be that of the daughter of PW10 and thereafter Sections 302 and 201 IPC were also added in respect of the crime already registered.

6. During the course of the investigation, the appellants were arrested. It is not clear from the record how and by whom the role of the appellants in the crime was suspected to cause their arrest. The appellants were neither named in the FIR nor any person had named them in any statement to the police. Pertinently, the FIR had named somebody else as suspect. Soon after their arrest, the confessional statements of the appellants were recorded by the police pursuant to which following items were recovered:

(i) A Scarf of the girl was recovered from the house of appellant no.2;

(ii) A drawing book was recovered from the house of appellant no.1 from which a piece of paper was torn on which threatening letter (Exhibit II) was stated to have been written.

7. After completion of investigation, charge-sheet for the offences punishable under Sections 364-A, 201, 302 read with 34 IPC was submitted against the appellants and they were tried for having committed said offences.

8. The evidence unfolded by the prosecution mainly comprised of:

(i) PW10, his brother PW4 who deposed having received telephone calls but the witnesses could not identify the caller from the voice;

(ii) The prosecution als