IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Appeal (DB) No. 821 of 2014

(Against the judgment of conviction dated 25.09.2014 and the order of sentence dated

29.09.2014 passed by the learned Additional Sessions Judge-IV, Garhwa in S. T. Case

No.354 of 2009/ Sessions Trial No.28 of 2014)

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Upendra Mahto @ Upendra Mehta, son of Rajendra Mehta, resident of

Village- Barwadih, P.O. & P.S. Kandi, District Garhwa ...... …... Appellant

Versus

The State of Jharkhand ….. …. Respondent

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CORAM: SRI ANANDA SEN, J.

SRI SUBHASH CHAND, J.

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For the Appellant : Mr. Yogesh Modi, Advocate

For the State : Mrs. Priya Shrestha, Spl.PP

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C.A.V. on: 08/05/2024 Pronounced on:24/05/2024

J U D G M E N T

Per: Subhash Chand, J.

1. The instant Criminal Appeal has been preferred against the judgment

of conviction dated 25.09.2014 and the order of sentence dated 29.09.2014

passed by the learned Additional Sessions Judge-IV, Garhwa in S. T. Case

No.354 of 2009/ Sessions Trial No.28 of 2014, whereby the learned trial

Court has convicted the appellant under Sections 302 and 377 of the Indian

Penal Code and sentenced him to undergo imprisonment for life along with

fine of Rs.10,000/-, in default of payment of fine, he was directed to undergo

SI for three months for the offence under Section 302 of the Indian Penal

Code. The appellant was further sentenced to undergo RI for 10 years along

with fine of Rs.5000/-, in default of payment of fine, he was directed to

undergo SI for two months for the offence under Section 377 of the Indian

Penal Code.

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2. The brief facts of the prosecution case leading to this Criminal Appeal

are that the fardbeyan of the informant Vijay Mehta was recorded by the

police officer wherein he made the allegations that on 28.09.2009 in the

night, Upendra Mehta of his village took his brother to Barwadih School to

watch T.V., thereafter, from Barwadih School he took him to Sonepurwa on

the pretext of watching T.V. Till late night, his cousin did not come back and

no whereabouts was known to him despite hectic search. The queries was

also made from Upendra Mehta who avoided to give any information. In the

morning, the dead body of his cousin brother Narayan Mehta was found in

the bush and nearby the dead body spectacle was also found and that

spectacle was identified by the informant and other villagers to be of

Upendra Mehta. Thereafter, all the villagers and the informant asked

Upendra Mehta who told that he had established carnal intercourse against

the order of nature. He throttled him to death causing injury on the chest and

left the dead body beneth the Nenua plants. The accused was 25 years old

while the deceased Narayan Mehta was 10 years old. On the basis of

fardbeyan of the informant Vijay Mehta, Kandi P.S. Case No.03 of 2009 was

registered with the police station concerned under Sections 302 and 377 of

the Indian Penal Code against the accused Upendra Mehta.

3. The Investigating Officer after having concluded the investigation,

filed charge-sheet against the accused Upendra Mehta under Sections 302

and 377 of the Indian Penal Code to the Court of learned Magistrate

Concerned, who took the cognizance thereon and committed the case for

trial to the Court of learned Sessions Judge, Garhwa.

4. The learned Trial Court framed the charge against the accused

Upendra Mehta under Sections 302 and 377 of the Indian Penal Code and

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the same was explained to him, the accused denied the charge and claimed

to face the trial.

5. On behalf of the prosecution to prove the charge against the accused

in oral evidence examined altogether fourteen witnesses i.e. P.W.-1,

Vishwanath Mehta; P.W.-2, Sunil Kumar Mehta; P.W.-3, Ram Krit

Ram; P.W.-4, Janeshwar Mahto; P.W.-5, Ram Chandra Mehta; P.W.-6,

Gorakh Mehta; P.W.-7, Nand Lal Mehta; P.W.-8, Suresh Mehta; P.W.-9,

Asha Kumari; P.W.-10, Kiran Kumari; P.W.-11, Dr. Mohan Prasad;

P.W.-12, Vijay Mehta; P.W.-13, Radhika Raman Minz and; P.W.-14,

Diwakar Mandal; and in documentary evidence the prosecution has

adduced Exhibit-1, Signature of Vishwanath Mehta containing at

seizure-list; Exhibit-1/1, Signature of Ram Krit Ram containing at

seizure-list; Exhibit-1/2, seizure list; Exhibit-2, Postmortem report;

Exhibit-3, Signature of the informant Vijay Mehta containing at

statement of fardbeyan; Exhibit-3/1, statement on fardbeyan; Exhibit-4,

Endorsement on statement on fardbeyan regarding registering the case

by the then officer-in-charge of P.S. Kandi; Exhibit-5, Formal FIR and;

Exhibit-6, Inquest report; Exhibit-7, Challan marked is ‘X’. The

prosecution has also got exhibited an article Exhibit i.e. spectacles which

is marked as article Exhibit (i).

6. The statement of accused was recorded under Section 313 of the Code

of Criminal Procedure, in which, the accused denied the incriminating

circumstances in the evidence against him and stated himself to be innocent

and also stated that he confessed the guilt under pressure and the spectacle

was not of him.

7. The learned Trial Court after hearing the rival submissions of the

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learned counsel for the accused and learned counsel for the State, passed the

impugned judgment of conviction dated 25.09.2014 and the order of

sentence dated 29.09.2014 holding the accused guilty for the offence under

Sections 302 and 377 of the Indian Penal Code and sentenced him as

aforesaid.

8. Aggrieved from the impugned judgment of conviction dated

25.09.2014 and the order of sentence dated 29.09.2014, this Criminal Appeal

has been preferred on behalf of the accused on the ground that the impugned

judgment of conviction and the order of sentence passed by the learned Trial

Court is bad in the eyes of law and the same is not based on proper

appreciation of evidence. The case is being based on circumstantial

evidence. The chain of circumstantial evidence is not complete. The learned

Trial Court relied upon the extra judicial confession of the appellant-convict,

which was not voluntarily as per the testimony of prosecution witnesses.

Further, the spectacle which is alleged to have been recovered near the dead

body of the deceased was not identified. Even in the seizure memo, the

details of spectacle were not mentioned and while it was produced before the

learned Trial Court, it was not sealed. The seizure witnesses have also not

proved the seizure memo of the spectacle. As such, the findings recorded by

the learned Trial Court is perverse. In view of the above, prayed to allow this

Criminal Appeal and set aside the impugned judgment of conviction and the

order of sentence.

9. We have heard the rival submissions of the learned counsel for the

appellant and learned Spl.PP for the State and perused the materials

available on record.

10. In order to decide the legality and propriety of the impugned judgment

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of conviction and the order of sentence passed by the learned Trial Court, we

scrutinize the evidence oral as well as documentary adduced on behalf of the

parties on record, which are reproduced hereinbelow:

10.1 P.W.-1, Vishwanath Mehta, in his examination-in-chief says that the

occurrence was of 29.09.2009 at 08:00 O’clock in night. That day was

Dussehra festival. Narayan Mehta was taken by Upendra Mehta to watch

T.V. to Barwadih School. More so, he was taken to Buniyad Bigha School to

watch T.V. while returning from there Narayan Mehta was murdered by

Upendra Mehta after throttling him. He had also established carnal

intercourse with him against the order of nature and the dead body was

thrown in the agricultural field of Shiv Mehta wherein the crop was of

nenua. Overnight, the search was made but nothing was known. In the

morning, near the nenua crop of agricultural field, the crowd was seen by

him. The dead body was also found. The pant of deceased was opened.

There was black mark on the throat and some wound on the stomach. Whole

of the villagers had seen the dead body of Narayan Mehta. Narayan Mehta

was his nephew. He was ten years old. The police was informed and police

came there on the place of occurrence. A spectacle of maroon colour was

recovered. The same was of Upendra Mehta. Upendra Mehta confessed his

guilt before the people of the villagers that the spectacle was to be of him.

The recovered spectacle was seized. On the seizure memo, he put his

signature marked Exhibit-1. In cross-examination, this witness says that he

did not see the murder of Narayan Mehta from his own eyes. The spectacle,

which was of Upendra Mehta, no one of the villager has used the same

spectacle. He did not see the accused taking Narayan Mehta with him. The

accused confessed his guilt before the persons of the village and the police

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without any pressure.

10.2 P.W.-2, Sunil Kumar Mehta, in his examination-in-chief says that on

28.09.2009 at 08:00 O’clock in the night, Upendra Mehta came to the house

of Narayan Mehta and took him to the school to watch T.V. Narayan Mehta

was 10 years old. He was also present there. From Barwadih School, he was

taken to Sonepurwa. He saw him taking Narayan Mehta. Both did not

come back in night. In the morning search was made and in the

agriculture filed of Shiv Mehta where the crop was of nenua, the dead

body was found. The pant was opened and a red colour spectacle was

found nearby the dead body. The persons of the village identified the

spectacle to be of Upendra Mehta. At that time, Vijay Mehta, Sunil Mehta,

Ram Krit Ram, Vishwanath Mehta and other villagers were present there.

The spectacle was also taken by all the villagers to the house of Upendra

Mehta, who confessed his guilt and also admitted that the spectacle to be

of him and he told that the cause of murder was that he had evil eyes on

the sister of the deceased and his torch was left at his house and the same

was not given back. A panchayat was also held but he did not comply the

verdict of panchayat. He also confessed that he had established carnal

intercourse against the order of nature with him. Before the police, he

also confessed his guilt. In cross-examination, this witness says that the

distance between the School wherein T.V. was being watched and the house

of Narayan Mehta was of 50 houses. He did not see Upendra Mehta

committing murder of Narayan. He had seen Narayan to be taken by the

accused but he did not resist or oppose. He also told that he did not see

Vijay Mehta that deceased was taken by the accused. He reached to

Barwadih at 08:30 O’clock. The Ramayan was being displayed. He had

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seen Narayan and Upendra watching T.V. in Barwadih School. He had

seen that till 10:00 O’clock of night the T.V. was watched. He returned

from Barwadih School at 10:00 O’clock. The brother of deceased Vijay

Mehta remained there. Further says that the deceased was taken to

Sonepurwa School by Upendra forcibly at 09:45, he did not resist or

oppose. The dead body was found at the distance of one kilometer from

Barwadih School. The dead body was recovered from Bigha in between

Sonepura and Barwadih. The bleading was on the anus of deceased. The

extra judicial confession of accused was not reduced in writing. They

only caught hold of accused. He confessed his guilt on being asked with

love. In the night, he did not tell to the father of Narayan Mehta that the

deceased was taken from Barwadih to Sonepura. In the morning, he told him

while Upendra Mehta had taken to the deceased and no one resisted him.

10.3 P.W.-3, Ramkrit Ram, in his examination-in-chief supported the

prosecution story and also stated that on the seizure memo of the spectacle

he put his signature and identifies the same. The accused also confessed that

he had eve teased the sister of the deceased. A panchayat was also held for

the same wherein he was punished. With this reason, he had committed this

occurrence. In cross-examination, this witness says that prior night from

the day of recovery of dead body of Narayan Mehta, he did not see

Narayan Mehta. The blood was on the anus of deceased. He denied the

suggestion that no such spectacle was recovered and the accused did not

confess his guilt.

10.4 P.W.-4, Janeshwar Mahto, in his examination-in-chief, corroborated

the prosecution story and also stated that the accused had confessed his guilt

and admitted that the spectacle to be of him and also stated that on account

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of evil eyes upon the sister of the deceased, he committed murder of

Narayan Mehta. In cross-examination, this witness says that the

spectacle, which was recovered, the frame of the same was of blue

colour and the glass of the same was black. His son left the house without

asking him to watch T.V. in the night while he was going. A panchayat was

also held in regard to eve-tease the daughter by Upendra Mehta since then

there was enmity between Upendra Mehta and him.

10.5 P.W.-5, Ram Chandra Mehta, in his examination-in-chief,

corroborated the prosecution story and in cross-examination, this witness

says that the police did not interrogate him. He had seen his nephew

accompanying Upendra Mehta. He asked him where he was going about

08:00-09:00 O’clock in the night.

10.6 P.W.-6, Gorakh Mehta, in his examination-in-chief, corroborates the

prosecution story and the statement of other prosecution witnesses and also

says that he had seen Upendra Meha taking deceased with him near his

house. In cross-examination, this witness says that he had seen the

spectacle which was of sky colour and the frame was of blue colour.

Upendra Mehta was nabbed and brought to the house of Baijnath Saw

where he was tied and after threatening and frightening him, he gave

the confessional statement in regard to the offence.

10.7 P.W.-7, Nand Lal Mehta, in his examination-in-chief corroborates the

prosecution story and in cross-examination, this witness says that he did not

go to watch T.V. In the morning, he came to know in regard to the

occurrence.

10.8 P.W.-8, Suresh Mehta, in his examination-in-chief, corroborates the

prosecution story and in cross-examination, this witness says that he saw

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Upendra Mehta and Narayan Mehta both going to watch T.V. He asked

from Narayan Mehta where he was going, he told that he was accompanying

Upendra Mehta to watch T.V. This witness further says that the spectacle

was of sun-glass and there was no measurement of the sun-glass.

10.9 P.W.-9, Asha Kumari, in her examination-in-chief says that the

deceased was her brother. Upendra Mehta took his brother to watch T.V.

to Barwadih School, from there, he took to Sonepura. It was 08:00

O’clock of night. Overnight, her brother did not come. In the morning, dead

body was found in nenua agriculture field. A spectacle was also found near

the dead body, which was of Upendra Mehta. Before the people of the

village, he confessed his guilt and also admitted that the spectacle to be

of him. In cross-examination, this witness says that he had seen Upendra

Mehta taking her brother with him to watch T.V.

10.10 P.W.-10, Kiran Kumari, in her examination-in-chief, says that

Upendra Mehta took her brother to watch T.V. from there, he had taken

to Sonepura School. Upendra Mehta confessed his guilt in presence of

the people of village. In cross-examination, this witness says that at the time

of confession made by Upendra Mehta, Janeshwar Mehta, Gorakh Mehta,

Nandlal Mehta, Ram Chandra Mehta, Vishwanath Mehta and others were

present there.

10.11 P.W.-11, Dr. Mohan Prasad, in his examination-in-chief says that on

29.09.2009, he was posted as Medical Officer, Sadar Hospital, Garhwa and

on that day at 04:00 PM, he conducted the postmortem of deceased Narayan

Mehta and found “abrasion and bruise over anterior aspect of neck in the

middle, Subtutaneous tissues of neck-bruise and echymose trachea ring

fractured and congested tracer. Abrasion and bruise over anterior aspect of

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chest. Abrasion over both calf., Anus was gapping open. No evidence of anul

injury arrorectle was taken. The doctor has opined that the cause of death

of Narayan Mehta as to asphyxia due to manual throttling. Sodomy

cannot be ruled out. This witness has also identified postmortem report in

his handwriting and signature marked Exhibit-2. In cross-examination, this

witness has deposed that pressure by rope on neck can cause trachea. No

finger print was found on the neck.”

10.12 P.W.-12, Vijay Mehta, who is the informant, in his examination-in-

chief, corroborates the prosecution story and the contents of the FIR. He

identifies his signature on the fardbeyan marked Exhibit-3. In cross-

examination, this witness says that till 10:00 O’clock in night when Narayan

Mehta did not come, they thought that he might be watching T.V. He did not

go to the house of Upendra Mehta in night. The people of the village had

threatened and frightened Upendra, thereafter, he confessed that the

spectacle to be of him and confessed his guilt.

10.13 P.W.-13, Radhika Raman Minz, who is the Investigating Officer of

this case, in his examination-in-chief, says that the investigation of this case

was handed over to him on 29.09.2009. At 11:30 O’clock, he received the

information in regard to the murder of ten years old Narayan Mehta. He

went to the place of occurrence. The crowd of the persons of the village was

there. The fardbeyan of Vijay Meha was recorded by him. He identifies his

signature thereon and also his handwriting marked Exhibit-3/1. It was told

by Vijay Mehta that on 28.09.2009, Upendra Mehta had taken Narayan

Mehta with him to Sonepura School to watch T.V. After watching T.V. at

11:00 O’clock they were coming back and near the Buniyad Bigha, Upendra

had established carnal intercourse with Narayan Mehta against the order of

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nature and committed his murder. The formal FIR was also prepared on the

basis of fardbeyan, which is in his handwriting and signature marked

Exhibit-5. He prepared the inquest report of the deceased and took signature

of Sunil Mehta and Vijay Mehta thereon. The spectale was also recovered.

The seizure memo of the same was prepared, on which, Ramkrit Ram,

Vishwanath Mehta put their signature marked Exhibit-1/2. During

investigation, it transpired that the spectacle was of accused, which was

found from the place of occurrence. He recorded the statement of witnesses.

The accused was also produced by the villagers before him. He

identified the spectacle to be of him and he also confessed his guilt. After

receiving the postmortem report and concluding the investigation, he filed

the charge-sheet. In cross-examination, this witness says that the fardbeyan

was in his handwriting and signature. No eyewitness of the occurrence was

found during investigation. There was no blood nearby the dead body of

the deceased. When he inspected the place of occurrence, the spectacle

was not there. The spectacle was handed over to him by Vijay Mehta, it

was of maroon colour and the frame was also of maroon colour, it was

not of sky colour. All the villagers had told him that the spectacle was

recovered nearby the dead body of the deceased. No other incriminating

article like rope or gamcha was recovered from the place of occurrence.

Asha Kumari has told him that the accused had intruded in her house in

order to outrage her modesty.

10.14 P.W.-14, Diwakar Mandal, in his examination-in-chief, says that on

30.04.2014 by the order of the Court in Case Crime No.03 of 2009 the

material exhibit spectacle was produced by him. The fame of the same was

broken. It was of maroon colour. The challan of this material exhibit was

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prepared by him, which is in his pen and handwriting marked material

Exhibit-1. In cross-examination, this witness says that the spectacle, which

was received by him from malkhana, was not sealed.

11. The prosecution case is based on circumstantial evidence though the

motive of the occurrence is not disclosed in the fardbeyan of the informant;

yet it came in the testimony of all the prosecution witnesses that the

appellant-convict was having evil eyes upon the sister of the deceased

Narayan Mehta and on account of this very reason, he had committed

murder of Narayan Mehta. It also came in the testimony of all the

prosecution witnesses that a panchayat was held but no one witness has

stated that the proceeding of panchayat was reduced in writing, everything

was done only in oral and the appellant-convict was also punished by the

panchayat. As such, the motive of occurrence is proved from the

testimony of all the prosecution witnesses but the same alone cannot be

basis of conviction. The chain of circumstances should be complete.

11.1 The Hon’ble Supreme Court in the case of N. J. Suraj vs. State

represented by Inspector of Police reported in AIR Online 2004 SC 141

held that in case of a circumstantial evidence motive for commission of

offence is not sufficient to prove the guilt of accused, circumstances should

lead only in resistible conclusion of guilt. Paragraph No.4 reads as under:

“4.Now, the only circumstance which remains is that the accused

has a motive for the commission of the offence which alone cannot

form the basis for conviction as it is well settled that in a case of

circumstantial evidence, the circumstances should be such so as to

lead to only one irresistible conclusion, which is incompatible with

the innocence of the accused. This being the position, we are of the

view that the prosecution has failed to prove its case beyond

reasonable doubt and the High Court was not justified in

upholding the convictions of the appellant.”

11.2 The Hon’ble Supreme Court in the case of Sunil Rai @ Pauna & Ors.

Vs. Union Territory, Chandigarh reported in AIR 2011 Supreme Court

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2545 held that the motive alone hardly can be ground for conviction.

Paragraph No.31 reads as under:

“31.Likewise, the fact that Sunil Rai had got his money and clothes

stolen and he believed that Dile Ram had committed the theft,

normally, cannot be said to make out sufficient motive for him to kill

Dile Ram. In any event, motive alone can hardly be a ground for

conviction.

12. The next link in chain of circumstantial evidence is the last seen of

the deceased with the appellant-convict. The last seen witnesses are P.W.-

2, Sunil Kumar Mehta; P.W.-6, Gorakh Mehta; P.W.-8, Suresh Mehta;

P.W.-9, Asha Kumari and; P.W.-10, Kiran Kumari all these witnesses

have stated that they had seen Upendra Mehta taking Narayan Mehta with

him at 08:00 O’clock in the night of 28.09.2009 to watch T.V. to Barwadih

School and P.W.-2, Sunil Kumar Mehta also says that he had seen the

deceased and the appellant-convict watching T.V. in Barwadih School till

10:00 O’clock and, thereafter, he came back to his house. This witness also

stated that from Barwadih, the deceased was taken to Sonepura School,

which was one and a half kilometer from there; but he came left Barwadih

School at 10:00 O’clock while deceased was watching T.V. with appellant.

The other last seen witnesses have deposed that they had seen the deceased

accompanying Upendra Mehta from his house at 08:00 O’clock in night.

None of these witness has seen the deceased accompanying the appellant-

convict from Barwadih to Sonepura School. The last seen theory is found

proved only accompanying the deceased to the appellant-convict from

Barwadih School. No one witness of last seen has deposed that he had

seen the appellant-convict taking the deceased with him to Sonepura

School. All the witnesses of last seen had seen him at 08:00 O’clock with

the appellant-convict; while only P.W.-2, Sunil Kumar Mehta had seen

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the deceased watching T.V. in Barwadih School along with the appellant

till 10:00 O’clock and thereafter, he went back to his house.

12.1 The dead body of deceased seen by the villagers in the agricultural

field of Shiv Mehta in village Buniyad Bigha. The time gap between the last

seen of deceased with the appellant-convict and recovery of the dead body is

more than 12 hours. From the prosecution evidence, the last seen theory

is only proved up to the extent that the deceased was seen along with the

appellant-convict till 10:00 O’clock of night watching T.V. in Barwadih

School.

12.2 The last seen theory is not corroborated with the medical evidence.

Although P.W.-11, Dr. Mohan Prasad has opined the cause of death of

Narayan Mehta due to asphyxia due to manual throttling. Sodomy cannot be

ruled out; yet the time elapsed since death was opined 24 hours. The

testimony of P.W.-11, Dr. Mohan Prasad is also relevant. He has

conducted the postmortem at 04:00 pm on 29.09.2009 and time elapsed

since death is opined to be 24 hours. As such, as per the medical

evidence, the time of death of deceased was 04:00 O’clock of 28.09.2009;

while the deceased was last seen with the accused-appellant-convict at

08:00 O’clock in night by some of the witnesses of the last seen while

only one witness P.W.-2, Sunil Kumar Mehta has last seen the deceased

at 10:00 O’clock in the night of 28.09.2009. Therefore, the time of death

as opined by P.W.-11, Dr. Mohan Prasad belies the testimony of last seen

theory.

12.3 The Hon’ble Supreme Court in the case of R. Sreenivasa Vs. State of

Karnataka reported in 2023 LiveLaw (SC) 803 held that last seen theory can

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be invoked if it stands proved beyond reasonable doubt. Paragraph No.16

reads as under:

“16. The cautionary note sounded in Nizam (supra) is important.

The ‘last seen’ theory can be invoked only when the same stands

proved beyond reasonable doubt. A 3-Judge Bench in Chotkau v

State of Uttar Pradesh, (2023) 6 SCC 742 opined as under: ’

15. It is needless to point out that for the prosecution to

successfully invoke Section 106 of the Evidence Act, they must first

establish that there was “any fact especially within the knowledge

of the” appellant. …’”

12.4 The Hon’ble Supreme Court in the case of Jabir & Ors. Vs. The State

of Uttarakhand reported in 2023 LiveLaw (SC) 41 held that the last seen

circumstances cannot be sole basis for conviction.

13. The next link evidence in chain of circumstances is the recovery of

spectacle by the villagers nearby the dead body of deceased, which was

identified to be of appellant-convict and the prosecution witnesses examined

before the learned Trial Court. P.W.-1, Vishwanath Mehta is the witness of

seizure-memo of spectacle, who stated that the spectacle was of maroon

colour. P.W.-3, Ramkrit Ram, who is also the witness of seizure-memo of

the spectacle, he has stated that the spectacle, which was found near the

dead body was of red colour and it was identified to be of Upendra Mehta.

P.W.-4, Janeshwar Mehta, who is the father of the deceased, is also the

witness of the seizure memo of spectacle, he has stated that the spectacle,

which was recovered, the frame of the same was of blue colour and its

glass was of black colour. P.W.-6, Gorakh Mehta has deposed that the

spectacle was recovered nearby the dead body of the deceased and the

same was of sky colour and its frame was of blue colour. P.W.-7, Suresh

Mehta has deposed that the spectacle, which was recovered near the dead

body of the deceased, was of sun-glass and no measurement of the same

was taken. P.W.-13, Radhika Raman Minz. The Investigating Officer, in

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his testimony, deposed that the place of occurrence was inspected by him,

nothing incriminating article was recovered. No blood was lying near

the dead body of the deceased. The spectacle, which was handed over to

him by Vijay Mehta was of maroon colour and its frame was also of

maroon colour. He strictly denies that the spectacle was of sky colour. He

says that he is not aware that the spectacle was of which company. He

did not take measurement of spectacle and it was told to him by the

villagers that this spectacle was recovered by them nearby the dead

body of the deceased. P.W.-14, Diwakar Mandal, who has produced the

spectacle material exhibit-1 before the Court has stated that the spectacle,

which was brought by him from malkhana by the order of the Court to

produce it, was not sealed.

13.1 The recovered spectacle being not sealed, the seizure memo of the

same is also becomes doubtful. All these witnesses have stated that they

have seen the appellant-convict, wearing the spectacle; but in regard to the

frame and colour of the spectacle, there is discrepancy in the statement

of the witnesses and, as such, the identity of the spectacle is not found

proved.

14. The next link in chain of circumstantial evidence is the extra judicial

confession of the appellant-convict. P.W.-1, Vishwanath Mehta has stated

that the appellant-convict has confessed his guilt and admitted that the

spectacle to be of him. P.W.-2, Sunil Kumar Mehta has stated that Upendra

Mehta has confessed his guilt but the same was not reduced in writing. P.W.-

3, Ram Krit Ram has stated that after having recovered the spectacle near

the dead body of the deceased, which was of red colour, it was identified to

be of accused Upendra Mehta and on being asked to him by the persons of

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the village, Upendra Mehta told that he had established carnal intercourse

with the deceased and, thereafter, committed murder after throttling him.

14.1 P.W.-5, Vijay Mehta has negated his statement given to the

Investigating Officer. P.W.-6, Gorakh Mehta has deposed that the

appellant-convict confessed his guilt and also admitted the spectacle to be of

him. The appellant-convict was nabbed by the people of the village at 06:00

O’clock in the morning. All the villagers brought Upendra Mehta to the

house of Baijnath Sao where he was tied. After threatening and

frightening him, he confessed his guilt.

14.2 P.W.-12, Vijay Mehta, who is the informant of this case has deposed

that the villagers had threatened and frightened to Upendra Mehta then

he confessed that the spectacle was of him.

14.3 The appellant-convict in his statement recorded under Section 313 of

the Code of Criminal Procedure has specifically stated that he confessed the

guilt after the villagers had threatened and frightened.

14.4 Therefore, from the testimony of these witnesses, it is found that the

extra judicial confession, which is alleged to have been made by the

appellant-convict before these prosecution witnesses and the villagers was

not voluntary. The extra judicial confession was outcome of coercion as

the appellant-convict was frightened and threatened and was also tied

by the villagers. Moreover, this extra judicial confession made by the

appellant-convict was not before any such person, who was any authority or

was having intimacy with the appellant-convict. The extra judicial

confession being not voluntary and was the result of coercion cannot be

admissible in evidence. The extra judicial confession is a weak kind of

evidence, unless and until, the same inspires the confidence of the Court

- 18 - Cr. Appeal (DB) No. 821 of 2014

to believe the same to be trustworthy, the same cannot be relied upon.

As such, here also the link in chain of circumstances is breaking.

14.5 Section 24 of the Indian Evidence Act, 1872 reads as under:

“24. Confession caused by inducement, threat or promise, when

irrelevant in criminal proceeding.––A confession made by an

accused person is irrelevant in a criminal proceeding, if the

making of the confession appears to the Court to have been caused

by any inducement, threat or 2 promise having reference to the

charge against the accused person, proceeding from a person in

authority and sufficient, in the opinion of the Court, to give the

accused person grounds which would appear to him reasonable for

supposing that by making it he would gain any advantage or avoid

any evil of a temporal nature in reference to the proceedings

against him.”

14.6 The Hon’ble Supreme Court in the case of Union of India & Ors. Vs.

Major R. Metri No.08585N reported in 2022 LiveLaw SC 343 held that the

extra judicial confession a weak piece of evidence unless such confession is

found voluntarily, trustworthy and reliable, the conviction solely on the basis

of the same without corroboration would not be justified. Paragraph No.44

reads as under:

“ 44. This Court in the case of Sahadevan and another vs. State of

Tamil Nadu, (2012) 6 SCC 403 after surveying various judgments

on the issue, has laid down the following principles:

“The principles

16. Upon a proper analysis of the above-referred judgments of this

Court, it will be appropriate to state the principles which would

make an extrajudicial confession an admissible piece of evidence

capable of forming the basis of conviction of an accused. These

precepts would guide the judicial mind while dealing with the

veracity of cases where the prosecution heavily relies upon an

extrajudicial confession alleged to have been made by the accused:

(i) The extrajudicial confession is a weak evidence by itself. It has

to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extrajudicial confession attains greater credibility and

evidentiary value if it is supported by a chain of cogent

circumstances and is further corroborated by other prosecution

evidence.

(v) For an extrajudicial confession to be the basis of conviction, it

should not suffer from any material discrepancies and inherent

improbabilities.

(vi) Such statement essentially has to be proved like any other fact

and in accordance with law.”

- 19 - Cr. Appeal (DB) No. 821 of 2014

14.7 The Hon’ble Supreme Court in the case of Nikhil Chandra Mondal

Vs. State of West Bengal reported in 2023 LiveLaw SC 171 held that extra

judicial confession is a weak piece of evidence, rule of caution should be

followed. The Court must ensure that the same inspires confidence and

corroboration by the other prosecution evidence. If it suffers same material

discrepancy or inherent probabilities, cannot be made basis of conviction.

Paragraph Nos.15 and 16 read as under:

“15. It is a settled principle of law that extra-judicial confession is

a weak piece of evidence. It has been held that where an extra-

judicial confession is surrounded by suspicious circumstances, its

credibility becomes doubtful and it loses its importance. It has

further been held that it is well-settled that it is a rule of caution

where the court would generally look for an independent reliable

corroboration before placing any reliance upon such extra-judicial

confession. It has been held that there is no doubt that conviction

can be based on extra-judicial confession, but in the very nature of

things, it is a weak piece of evidence…………”

15. In view of the critical analysis of the evidence on record, we are of the

considered view that the chain of circumstantial evidence is not found

complete. The chain breaks in regard to the evidence of the identity of

spectacle, which is alleged to have been recovered near the dead body of

deceased and is alleged to be of appellant-convict. Further, it breaks on the

extra judicial confession of the deceased, which was the result of coercion

was not voluntarily and the same is not admissible. Again, the chain of

circumstantial evidence breaks in regard to the last seen of deceased by the

witnesses and the time of death as opined by P.W.-11, Dr. Mohan Prasad.

Therefore, from the circumstantial evidence, it is not proved that it was the

appellant-convict, who is the perpetrator of the commission of alleged

offence, as such, the same is not found beyond reasonable doubt.

- 20 - Cr. Appeal (DB) No. 821 of 2014

15.1 The Hon’ble Supreme Court in the case of Sharad Birdhichand

Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 laid down

five golden principles, which constitute the panchsheel of proof of case

based on circumstantial evidence. Paragraph No. 153 reads as under:

“153. A close analysis of this decision would show that the

following conditions must be fulfilled before a case against an

accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to

be drawn should be fully established.

It may be noted here that this Court indicated that the

circumstances concerned “must or should” and not “may be”

established. There is not only a grammatical but a legal

distinction between “may be proved” and “must be or should

be proved” as was held by this Court in Shivaji Sahabrao

Bobade v. State of Maharashtra where the observations were

made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

“Certainly, it is a primary principle that the accused must be

and not merely may be guilty before a court can convict and

the mental distance between ‘may be’ and ‘must be’ is long

and divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they

should not be explainable on any other hypothesis except that

the accused is guilty,

(3) the circumstances should be of a conclusive nature and

tendency,

(4) they should exclude every possible hypothesis except the

one to be proved, and

(5) 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.”

16. Therefore, the impugned judgment of conviction and the order of

sentence passed by the learned Trial Court is found based on perverse

findings and the same needs interference and this Criminal Appeal deserves

to be allowed.

17. Accordingly, this Criminal Appeal is allowed and the impugned

judgment of conviction dated 25.09.2014 and the order of sentence dated

29.09.2014 passed by the learned Additional Sessions Judge-IV, Garhwa in

S.T. Case No.354 of 2009/ Sessions Trial No. 28 of 2014 are set aside. The

- 21 - Cr. Appeal (DB) No. 821 of 2014

appellant is acquitted from the charges levelled against him and he is

directed to be released forthwith, if not wanted in any other case.

18. Pending Interlocutory Application(s) also stands disposed of.

19. The record of the learned Trial Court be transmitted along with a copy

of this judgment.

(Subhash Chand, J.)

Per Ananda Sen, J. : I agree

(Ananda Sen, J.)

Jharkhand High Court, Ranchi

Dated: the 24 May, 2024,

Madhav/Rashmi/- A.F.R.