BAIJU KUMAR SONI & ANR. versus STATE OF JHARKHAND on 1 August 2019

1. This appeal challenges the judgment and final order dated14.07.2017 passed by the High Court of Jharkhand at Ranchi dismissingCriminal Appeal No.887 of 2009 preferred by the appellants herein andthereby affirming their conviction as recorded by the Trial Court in respectof offence punishable under Sections 364-A, 201, 302 read with 34 IPC.

2. According to the prosecution, a minor girl aged about 3½ yearswent 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 thefirst day and thereafter lodged an information vide Sanha No.142/06dated 09.01.2006 at 9.00 a.m. with the Officer In-charge of BhurkundaPolice 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 StationBhurkunda, S. Div. Ramgarh, District Hazaribagh.

3. According to the prosecution, a call was received by said PW10on 11.01.2006 at about 1236 Hours, from Ramgarh STD Booth, from anunknown person threatening him that his brother was getting smarterfor which said PW10 may have to pay the price. The caller told PW10that his daughter would reach by the evening and told him not to tell theadministration.

4. On the next day i.e. on 12.01.2006 at about 1335 Hours, PW10again received a call from another STD booth i.e. from Patratu STDBooth, 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 kidnappedhis niece. When the caller was asked about the proof of the fact, thecaller stated that PW4 could get the proof on the roof of the temple neartheir house. Thereafter, a poly bag was found on the roof of the templein which there was one red top and slippers of the girl as well as athreatening letter (Exhibit-II with Mark X – Written Paper of a copy forIdentification)

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A5. It appears that a dead body of the girl was recovered in a blackcoloured rexin bag from the Dam on or about 18.01.2006 by KhelariPolice Station.

Postmortem Report indicated:

“Nylon cloth (make like rassi), red in colour, is tied around theBneck. The knot is present on left side of neck which is a fixedknot. After removing the ligature material there is a ligature mark½ cm width situated around the neck. It is transverse and continueswith contusion of soft tissue underneath.

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

(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 daughterof PW10 and thereafter Sections 302 and 201 IPC were also added inDrespect of the crime already registered.

6. During the course of the investigation, the appellants werearrested. It is not clear from the record how and by whom the role ofthe appellants in the crime was suspected to cause their arrest. Theappellants were neither named in the FIR nor any person had namedEthem in any statement to the police. Pertinently, the FIR had namedsomebody else as suspect. Soon after their arrest, the confessionalstatements of the appellants were recorded by the police pursuant towhich following items were recovered:

(i) A Scarf of the girl was recovered from the house of appellantFno.2;

(ii) A drawing book was recovered from the house of appellantno.1 from which a piece of paper was torn on whichthreatening letter (Exhibit II) was stated to have been written.

7. After completion of investigation, charge-sheet for the offencesGpunishable under Sections 364-A, 201, 302 read with 34 IPC wassubmitted against the appellants and they were tried for having committedsaid offences.

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

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

(ii) The prosecution also placed reliance on the testimony of PW7Vikas Kumar who used to run Vikas STD Booth at Patratuproduced two bills (Exhibit-I) indicating that on 12.01.2006two calls were made from his STD booth at 1327 Hours and1338 Hours to two Mobile Nos.[REDACTED] and [REDACTED]respectively. PW7 identified the appellants to be the personswho had come to his STD Booth on the relevant date andmade those two calls.

(iii) PW5 Uttam Kumar Kharbar deposed that on 09.01.2006,when he boarded a train from Bhurkunda Railway Station,he had seen the appellants carrying a stuffed rexin bag whichthey had carried along with them. According to theprosecution, it was that rexin bag in which the dead body ofthe girl was ultimately found in the Dam.

9. The following circumstances were thus relied upon by theprosecution:

(1) On 12.01.2006 PW7 who was running the STD Booth hadseen both the appellants at his telephone booth and two callswere made by them to mobile numbers indicated above at1327 Hours and 1338 hours.

(2) A Scarf was found in the house of the second appellant.

(3) A drawing book was found in the house of first appellant whichcould be associated with the threatening letter (Exhibit II).

(4) PW5 had seen both the appellants with a stuffed rexin bag on09.01.2016 boarding a train at Bhurkunda Railway Station.

(5) The dead body of the girl was ultimately found in a rexin bagat a distance about 50 kms. from the house of PW10.

(6) Some wrappers of Chocolates and Biscuits were found nearthe house of the appellants.

10. On the basis of these circumstances, the prosecution contendedthat the offences in question were established against the appellants.

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AThe case of the prosecution was accepted by the Trial Court, which byits judgment and order dated 17-20.04.2009 convicted both the appellantsand sentenced them to suffer 10 years of imprisonment for the offenceunder Section 364-A IPC and to suffer life imprisonment for the offenceunder Section 302 read with Section 34 IPC. Though convicted, noseparate order of sentence was recorded in respect of offence underBSection 201 read with Section 34 IPC. All the sentences were directedto run concurrently.

11. The appellants being aggrieved approached the High Court ofJharkhand at Ranchi by filing Criminal Appeal No.887 of 2009, whichcame to be rejected by the High Court.C

12. According to the High Court, the recovery of the Scarf of thedeceased, recovery of the drawing book, pages of which were used forwriting threatening letter as well as the fact that PW5 had seen theappellants with the same rexin bag in which dead body was found, werecircumstances sufficient to convict the appellants.D13. In this appeal, we heard learned counsel for the appellants aswell as the learned counsel for the respondent-State and with theirassistance, we have gone through the entire record.

14. The law on the point is very well settled that in a case basedEon circumstantial evidence, every circumstance must be fully provedand all the circumstances must form a chain of evidence so complete asto exclude every hypothesis other than the guilt of the accused. It wasstated by this Court in Sharad Birdhichand Sarda v. State ofMaharashtra[1]:

F“153. A close analysis of this decision would show that the followingconditions must be fulfilled before a case against an accused canbe said to be fully established:

(1) the circumstances from which the conclusion of guilt is tobe drawn should be fully established.

GIt may be noted here that this Court indicated that thecircumstances concerned ‘must or should’ and not ‘may be’established. There is not only a grammatical but a legal distinctionbetween ‘may be proved’ and ‘must be or should be proved’ aswas held by this Court in Shivaji Sahabrao Bobade v. State of H1(1984) 4 SCC 116

Maharashtra, (1973) 2 SCC 793, where the followingobservations were made:

“Certainly, it is a primary principle that the accused must be andnot merely may be guilty before a court can convict and the mentaldistance between ‘may be’ and ‘must be’ is long and divides vagueconjectures from sure conclusions.”

(2) The facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that theaccused is guilty,

(3) the circumstances should be of a conclusive nature andtendency,

(4) they should exclude every possible hypothesis except the oneto be proved, and

(5) there must be a chain of evidence so complete as not to leaveany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused.”

15. In Nizam and Another vs. State of Rajasthan[2], the law on thepoint was reiterated while acquitting the accused of the charges underSections 302 read with 201 IPC. Paragraphs 9 and 10 of the decisionwere:- “9. The principle of circumstantial evidence has been reiteratedby this Court in a plethora of cases. In Bodhraj v. State of J&K(2002) 8 SCC 45, wherein this Court quoted a number of judgmentsand held as under: (SCC pp. 55-56, paras 10-11)

10. It has been consistently laid down by this Court that where acase rests squarely on circumstantial evidence, the inference ofguilt can be justified only when all the incriminating facts andcircumstances are found to be incompatible with the innocenceof the accused or the guilt of any other person. (See HukamSingh v. State of Rajasthan (1977) 2 SCC 99, Eradu v. State ofHyderabad AIR 1956 SC 316, Earabhadrappa v. State ofKarnataka (1983) 2 SCC 330, State of U.P. v. Sukhbasi (1985)

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Supp SCC 79, Balwinder Singh v. State of Punjab (1987) 1SCC 1 and Ashok Kumar Chatterjee v. State of M.P. (1989)Supp (1) SCC 560). The circumstances from which an inferenceas to the guilt of the accused is drawn have to be proved beyondreasonable doubt and have to be shown to be closely connectedwith the principal fact sought to be inferred from thosecircumstances. In Bhagat Ram v. State of Punjab AIR (1954)SC 621, it was laid down that where the case depends upon theconclusion drawn from circumstances the cumulative effect ofthe circumstances must be such as to negative the innocence ofthe accused and bring home the offences beyond any reasonabledoubt.

11. We may also make a reference to a decision of this Courtin C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193,wherein it has been observed thus: (SCC pp. 206-07, para 21)

‘21. In a case based on circumstantial evidence, the settledlaw is that the circumstances from which the conclusion ofguilt is drawn should be fully proved and such circumstancesmust be conclusive in nature. Moreover, all the circumstancesshould be complete and there should be no gap left in the chainof evidence. Further, the proved circumstances must beconsistent only with the hypothesis of the guilt of the accusedand totally inconsistent with his innocence.’”

10. In Trimukh Maroti Kirkan v. State of Maharashtra (2006)10 SCC 681, this Court held as under: (SCC p. 689, para 12)

“12. In the case in hand there is no eyewitness of theoccurrence and the case of the prosecution rests oncircumstantial evidence. The normal principle in a case basedon circumstantial evidence is that the circumstances fromwhich an inference of guilt is sought to be drawn must becogently and firmly established; that those circumstances shouldbe of a definite tendency unerringly pointing towards the guiltof the accused; that the circumstances taken cumulativelyshould form a chain so complete that there is no escape fromthe conclusion that within all human probability the crime wascommitted by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of theaccused and inconsistent with their innocence.”

The same principles were reiterated in Sunil Clifford Daniel v.State of Punjab (2012) 11 SCC 205, Sampath Kumar v. Inspectorof Police (2012) 4 SCC 124 and Mohd. Arif v. State (NCT ofDelhi) (2011) 13 SCC 621 and a number of other decisions.”

16. In the light of these settled principles, from the facts andcircumstances it is evident:

a) Though PW7 stated that two calls were made from his STDBooth on 12.01.2006 at about 1327 Hours and 1338 Hoursto specified mobile numbers, nothing has been brought onrecord that those two mobile numbers either belonged to PW4and PW10 or were in any way under their control. In orderto establish as a circumstance that on the relevant daythreatening calls were received by the said PWs 4 and 10from the appellants, the important fact which ought to havebeen established was that those two mobile numbers eitherbelonged to or were under the control of said PWs 4 and 10.Even if we accept the theory that said PW7 had identifiedthe appellants to be the ones who had made two calls, thatdoes not lead us to infer that the calls must have been madeto PWs4 and 10. This circumstance has not been fullyestablished which could be read against the appellants.

b) Though drawing book had been received from the house ofappellant no.1 and it was the case of the prosecution that thethreatening letter (Exhibit-II) was written on a piece of paperfrom said drawing book, no attempts were made either tohave any forensic analysis or examine handwriting expert toestablish that the writing in the threatening letter was eitherof the appellants or could be associated with them.

17. Circumstance No.4 as stated above suggests that the deadbody of the deceased was carried by the accused in a rexin bag on theday after the girl went missing. The dead body was found ten days lateron 18.01.2006. The post mortem, conducted thereafter, indicated timeof death to be between 3 to 7 days. Even if the outer margin is consideredto be the limit, the circumstance by itself does not fit in, assuming it to becompletely against the appellants.

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A18. We are then left with circumstances at Serial Nos.2, 5 and 6.These circumstances do not form a chain so complete as not to leaveany reasonable doubt or exclude every possible hypothesis except theone to be proved, nor are the circumstances sufficient and adequate tohold that the prosecution had established its case beyond any reasonabledoubt.

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19. Considering the totality of the circumstances, in our view, theprosecution has failed to establish the case against the appellants.Consequently, the appellants are entitled to benefit of doubt. We,therefore, allow this appeal and acquit the appellants of the chargeslevelled against them.

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The appellants be released immediately, unless their custody isrequired in connection with any other offence.

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Kalpana K. Tripathy

Appeal allowed.

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