Allowed

Dahru Ganjhu v. State of Jharkhand

Jharkhand HC22 Jan 2019Cr.A(DB)/567/2009

Case brief

AI extract

What is this about?

Appeals against conviction under Sections 302/34 IPC for the murder of a youth whose body was found by a road near a dam after he was last seen on a tractor with the two appellants. Holding the case purely circumstantial and resting on a weak last-seen theory with no motive proved and injuries possibly from a fall, the court acquitted both appellants.

What did the court decide?

Impugned judgment of conviction and order of sentence set aside; appellants acquitted of the charges and directed to be released forthwith if not wanted in any other case.

Dahru Ganjhu Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2019)

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Criminal (Jail) Appeal (D.B.) No. 1021 of 2008 With

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Criminal Appeal (D.B.) No. 567 of 2009

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Against the judgment of conviction dated 25.01.2008 and order of sentence dated 30.01.2008 passed by Learned Additional Sessions Judge, Fast Track Court-II, Latehar in Sessions Trial No. 20 of 2007.

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Cr. (Jail) Appeal (DB) No. 1021/2008 Jalendra Ganjhu @ Jalendhar Ganjhu

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--Appellant Cr. Appeal (DB) No. 567/2009 Dahru Ganjhu --Appellant

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Versus

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The State of Jharkhand --Respondent

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For the Appellants: Ms. Renu Bala, Amicus Curiae in Cr. Appeal 1021/2008 Mr. Mukesh Kr. Dubey, Advocate in Cr. Appeal 567/2009 For the State: Mr. Gauri Shankar Prasad, A.P.P.

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Present

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Hon’ble Mr. Justice Aparesh Kumar Singh Hon’ble Mr. Justice Kailash Prasad Deo

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By Court: Heard learned Amicus Curiae in Cr. (Jail) Appeal (DB) No. 1021/2008, learned counsel for the appellant in Cr. Appeal (DB) No. 567/2009 and learned Additional Public Prosecutor representing the State.

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Both these appeals are directed against the common judgment of conviction dated 25.01.2008 and order of sentence dated 30.01.2008 passed by the learned Additional Sessions Judge, Fast Track Court-II, Latehar in Sessions Trial No. 20/2007, whereunder these two accused / appellants herein have been convicted for the charges under sections 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life.

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Informant Bandhan Ganjhu is the father of the deceased upon whose fardbeyan recorded by the Sub Inspector Awadh Kumar Yadav, Officer-inCharge, Chandwa Police Station, Latehar at 16.30 hrs. on 14.10.2006, the formal FIR was registered being Chandwa P.S. Case No. 117/2006 for the offence under sections 302/34 of the Indian Penal Code. The informant interalia alleged that his son TetarGanjhuaged18 years was a daily wager who had been engaged in manual labour and working in the village Satgharwa in relation to construction of Parahaia Aawas (house) for the last two days. Yesterday i.e. Friday at around 10 in the morning, his son along with his cousin brother had gone to receive wages for two days and to bring certain articles / construction materials in connection with Parahaia Aawas (house). After

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meeting the contractor Keshav Sao, construction materials such as Asbestos sheet, cement, lime, indigo, doors, windows, etc. were loaded on the tractor.While returning, they reached the village Newadih at around 7.00 in the evening. Durga Ganjhu, son of Birju Ganjhu of village Newadi and Lalnu Ganjhu, son of late Lal Babu Ganjhu of village Lathdag who were also travelling on the tractor, had got down at Newadih. Thereafter, his son Tetar Ganjhu along with the tractor driver Dahru Ganjhu, son of Risha Ganjhu and Jalendra Ganjhu, son of Mundal Ganjhu proceeded on the tractor to Satgharwa with the articles loaded on it. At around 10.00 in the night, he heard the sound of the tractor but his son Tetar did not return. In the morning, he was worried about him when certain villagers who had gone to the forest to bring woods, informed him on return that his son’s body was lying drenched with blood and he was found dead near the dam. On this information, he along with the villagers Birju Ganjhu, Dhiraju Ganjhu (PW-1), Parmeshwar Ganjhu (PW-3) and Kameshwar Ganjhu (PW-4) went towards the Newadih Dam and found the dead body of his son by the side of the road near the dam drenched in blood. It was alleged that the tractor driver Dahru Ganjhu (appellant in Cr. Appeal (DB) No. 567/2009) and Jalendra Ganjhu (appellant in Cr. (Jail) Appeal (DB) No. 1021/2008) have killed his son and thrown his body on the road. He put his thumb impression on the fardbeyan in the presence of the villager Kameshwar Ganjhu.

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On this First Information Report, investigation was initiated and on its completion, these two accused / appellants were charge sheeted for the offence under sections 302/34 of the India Penal Code. After cognizance, case was committed to the court of sessions. Charges were framed against these two accused on 30.03.2007 under the aforesaid sections and were read over to them to which they pleaded innocence. Case was thereafter put up for trial.

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On behalf of the prosecution, eight witnesses in total were examined namely,

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PW-1:	Dhiraju Ganjhu @ Dhiraj
PW-2:	Durga Ganjhu
PW-3:	Parmeshwar Lohra
PW-4:	Kameshwar Ganjhu Bandhan Ganjhu, informant of the case, was examined as PW-5;
PW-6:	Prem Ganjhu Dr. Janardan Pd. Singh who conducted autopsy on the body of the deceased, was examined as PW-7; and
PW-8:	Md. Ibrar Ahmed
Pro	secution adduced certain documentary evidence which are marked up

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to Ext.6 as under:

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Signature of Kameshwar Ganjhu on fardbeyan has been proved and marked as

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Ext.1; Postmortem report has been proved and marked as Ext.-2; Case diary from para-1 to 45 has been proved and marked as Ex. 3; Fardbeyan of the informant has been proved and marked as Ext.-4; Endorsement of registration of the case on the fardbeyan has been proved and marked as Ext. 4/1;

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Formal FIR has been proved and marked as Ext.5; and Inquest report of the deceased Tetar Ganjhu has been proved and marked as Ext.6.

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After conclusion of the prosecution evidence, material evidences were put to the accused while recording their statements under section 313 of the Cr. P.C. to which they denied.

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Learned Trial Court discussed the material evidence brought on record by the prosecution in detail and culled out the following circumstances leading to the inference of guilt of these two accused / appellants.

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(i) on 13.10.2006 the deceased Tetar Ganjhu had gone along with the accused and other villagers from Chandwa market to village Newadih where all the villagers except the deceased and two accused got down from the tractor; (ii) the two accused took the deceased on the tractor for dropping construction materials at village Satgharwa;

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(iii) at 8.00 in the night, these two accused returned on their tractor after dropping materials at village Satgharwa but the deceased did not return;

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(iv) when these accused persons were passing through the village Newadih, the informant tried to stop them to inquire about his son Tetar Ganjhu, but both the accused told that he had not returned and they proceeded with the tractor to Chandwa;

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(v) on 14.10.2006 in the morning, dead body of Tetar Ganjhu was found near Newadih dam, which on appearance, showed injury inflicted by rod and boulder and his face was smeared with indigo dye which was kept on the tractor;

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(vi) the postmortem on the dead body was conducted on 15.10.2006. The doctor found nine ante mortem injuries on the face, head and chest of the deceased caused by hard and blunt substance such as boulder;

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(vii) dead body was drenched with blood at the P.O.;

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(viii) deceased was last seen in the company of the accused persons in the evening and his dead body was found in the morning on the side of the road; all the material witnesses have supported the circumstances of last seen;

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(ix) evidence of circumstantial witnesses were consistent regarding their aspects and

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(x) lastly these circumstances connect all links in the chain pointing to the guilt of the accused and nobody else.

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Learned court dealt with the evidence of the prosecution witnesses and derived the following inferences:

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that the last seen theory was proved by six prosecution witnesses i.e. PWs-1,2,3,4,5 & 6. All these prosecution witnesses have seen the deceased going along with these two accused towards village Satgharwa to drop the materials. PW-1 had also stated that they had taken country made liquor and then started for Satgharwa. The prosecution witnesses such as PWs-2 and 3 have also stated that other villagers travelling on the tractor, had got down at village Newadih and these three had proceeded towards Satgharwa. The informant, father of the deceased, had also supported the prosecution case made out in the fardbeyan that the deceased had gone to Satgharwa along with these two accused persons to drop materials and when the tractor returned, his son did not return. His dead body was found in the morning. Learned Trial Court came to the opinion that the testimony of these witnesses if taken on its face value, does constitute a circumstance as to draw incriminating inference against these accused persons and connect them with the crime. Learned Trial Court also took note of the evidence of PWs-1, 4, 5 and 6 that the accused persons while returning, did not stop tractor at village Newadih and proceeded towards Chandwa, though the deceased was not travelling in the return journey along with them. PW-5, the informant, had stated that when he tried to stop the tractor, these accused persons falsely stated that his son had not returned with them. These incriminating circumstances went against the accused persons to connect them with the crime. Learned Trial Court further considered the evidence of PWs-1, 2, 3, 4 & 5 who supported the recovery of the dead body of the deceased Tetar Ganjhu on the road side with his face smeared with indigo dye. The inquest report also showed that the dead body was found in the morning near village Newadih dam and that the face of the deceased was smeared with indigo dye which constitute incriminating circumstance against the these accused persons that they had killed him while moving on the tractor and thrown the dead body on the road. Learned Trial Court ruled out the defence case relating to the alternative theory of the occurrence that the deceased had gone to demand his dues from one Difa Parahaiya who killed him and threw his dead body near the dam. It observed that as per the admitted case of the defence, the deceased died due to fall over boulders. Evidence of Medical Expert (PW-7) who proved the postmortem report, also showed that

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there were nine ante mortem injuries and all injuries were on the face, head, chest and arms and were caused within 48 hours from the time of postmortem examination held on 15.10.2006 at around 10.45 am; the death was reported in the morning on 14.10.2006. All these incriminating circumstances persuaded the learned Trial Court to come to a finding that the prosecution had been successful in establishing the place of occurrence, time of occurrence and incriminating circumstances against the accused persons which connect all links in the chain pointing to the guilt of the accused persons and nobody else. Testimony of these witnesses were consistent, cogent and reliable. Thus, accused were convicted of charges under sections 302/34 of the Indian Penal Code.

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Learned Amicus Curiae and learned counsel for the appellants in these two appeals have assailed the findings inter-alia on the common submissions,

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(i) there is no eyewitness to the occurrence;

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(ii) there is no motive to the crime; none of the prosecution witnesses have shown any previous enmity or quarrel for any reason whatsoever to provide a motive for killing the son of the informant;

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(iii) the description of moving of these two accused persons on the tractor with the deceased taken together show a normal course of conduct. Tractor was carrying construction materials such as Asbestos sheet, cement, lime, indigo, doors, windows, etc. which were to be off-loaded at village Satgharwa in relation to construction of Parahiya Aawas (house) .

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(iv) prosecution has not been able to show or allege that the vehicle was taken by these accused towards the dam in the night in a lonely place only with the intention to kill Tetar Ganjhu, son of the informant;

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(v) prosecution witnesses such PW-1 Dhiraju Ganjhu @ Dhiraj and PW-5 Bandhan Ganjhu, informant have stated that after the villagers got down from the tractor at village Newadih, these three persons took liquor at village Newadih and proceeded towards Satgharwa. As such, there is no hint of any malice or enmity between the accused and the deceased, all of whom proceeded towards Satgharwa for dropping the construction materials of the contractor in connection with the construction of Parahiya Aawas (house) there.

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(vi) it is quite likely that the deceased in a drunken state fell down from the running tractor in the night on return and sustained injuries which proved to be fatal. Admittedly, these two accused were also drunken and failed to notice the incidence. They also may have been tired while returning with the tractor and therefore, could not realize this mishap.

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(vii) Evidence of PW-7 Dr. Janardan Prasad Sinha who has proved the postmortem report (Ext.2) shows that nine ante mortem injuries were found on the person of the deceased. In the opinion of the doctor, cause of death was cardiorespiratory failure due to hemorrhage and shock. During crossexamination, he opined that the injury no. 1 to 9 could be caused by fall from a rolling vehicle. Injury no. 1 and 2 was on the head while rest of the injuries were abrasion on the chest and limbs on either sides. Therefore, such injuries could have been caused due to fall from the running tractor. If these injuries do not show assault by any heard and blunt substance in a concerted manner by a human act, intention to kill cannot be inferred from reading of the entire material evidence on record.

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As such, learned court has committed serious error in coming to finding of guilt against these appellants for serious charge of murder based upon the theory of last seen, which is a very weak type of evidence. In the absence of any definite motive, circumstantial evidence projected by the prosecution should not alone be taken into account to prove the guilt of these two accused. They are innocent and have denied their role in the crime. As such, they deserve to be acquitted from the charges. These two appellants have not escaped after the incidence and as such, were taken into custody on 14.10.2006 itself i.e. the date of institution of the FIR. They have remained in custody for more than 12 years by now.

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Learned counsel for the State has also taken us to the entire material evidence on record. He submits that the circumstances proved from the mouth of the prosecution witnesses, do provide all links to complete the chain of circumstances which support the only hypothesis of the guilt of the accused persons and no other. The accused / appellants were last seen in the company of the deceased by a number of witnesses (PWs-1 to 6) who are consistent in their statement and have not been discredited in their cross-examination. These accused persons were stopped by the informant, father of the deceased, on their return as his son had not come back along with them, but instead of explaining the reasons for his absence, they simply proceeded towards Chandwa and did not stop the tractor. This was an unusual conduct on the part of the accused persons who had the duty to explain about the absence of the son of the informant on the tractor while returning from the village Satgharwa. If the chain of circumstances is so complete and defence has not been able to break any of the links therein, absence of any particular motive would not mitigate the active role of these appellants in the commission of the crime. Learned Trial

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Court, after thorough discussion on the role of these appellant, has therefore rightly held these two accused persons guilty of the charge under section 302/34 of the Indian Penal Code as the prosecution has proved all the circumstances leading to their guilt beyond all reasonable doubt. Appeals therefore deserve to be dismissed.

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We have considered the submissions of learned Amicus Curiae and counsel for the appellant in two connected appeals and learned Additional Public Prosecutor on behalf of the State, scanned entire material evidence on record and also perused the impugned judgment. It is no one’s case that the instant prosecution was based on direct evidence in the nature of eyewitness account. The case is based upon circumstantial evidence. The principles how the circumstances be considered and weighed are well settled and summed up in the case of Sharad Birdhichand Sarda Versus State of Maharashtra [(1984) 4 SCC 116 and has been relied upon by the Apex Court in the case of Dhal Singh Dewangan Versus State of Chhattisgarh reported in (2016) 16 SCC 701 at Para-26 quoted hereinafter:

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26. We are therefore left with certain pieces of circumstantial evidence and have to see if those circumstances bring home the case of the prosecution. The principles how the circumstances be considered and weighed are well settled and summed up in Sharad Birdhichand Sarda v. State of Maharashtra as under: (SCC p. 185, paras 153-54)

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“ 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:

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

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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 p. 807, para 19)

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‘ 19 . … 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.’

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(emphasis in original)

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( 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,

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

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

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( 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

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probability the act must have been done by the accused.’ 154 . These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

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These five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence. As per the ratio of the aforesaid case, the circumstances concerned “must or should” and not “may be” established. 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.

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Prosecution witnesses no. 1 to 6 who are villagers of the same village Newadih to which the informant, father of the deceased, belongs, have been consistent in their statement, so far as the presence of the deceased in the company of the two accused / appellants on the tractor is concerned while returning from Chandwa and proceeding towards Satgharwa village through Newadih in connection with dropping of certain articles / construction materials at village Satgharwa in relation to the construction of Parahiya Aawas (house) in the night of 13.10.2006 at around 7.00 pm. PW-4 Kameshwar Ganjhu and PW-5, the informant, have also deposed that these appellants along with the deceased had taken liquor at village Newadih on their way towards the village Satgharwa after some of the villagers travelling on the tractor from Chandwa got down at Newadih. However, none of these witnesses have uttered even one statement to show that these accused persons had any previous enmity or instance of quarrel, fight or dispute with the deceased or his father. The informant (PW-5) has also not attributed any such motive in his fardbeyan or during his deposition made during trial. The prosecution has set up the entire case on the basis of last seen theory. Learned Trial Court has also dealt with the evidence of the prosecution witnesses on the same lines and been persuaded to hold these two appellants guilty of the charges of having caused murder of Tetar Ganjhu, son of the informant with a common intention. Learned trial court has drawn adverse inference on the conduct of the appellants in the manner in which they failed to stop the tractor on their return from village Satgharwa while proceeding to Chandwa when the informant had tried to stop them at village Newadih to inquire about his son return. It is to be observed at this stage that absence of explanation or a false explanation is to be considered in the context of appreciation of a case based on circumstantial evidence. In the case of Sharad Birdhichand Sarda ( Supra ), it has been held at Para-151

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that it is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court. It has been further observed at para-161 that there is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. In this light, in the present case, we feel persuaded to observe that failure to stop the tractor by the accused at village Newadih on being asked by the informant, could not reinforce the conclusion of the court on the guilt of the accused when the chain of circumstances are not of conclusive nature and tendency and the guilt of the accused may be inferred instead of being derived from conclusion. The circumstances of guilt “must or should’ be established by the prosecution leaving no reasonable ground for the conclusion consistent with the innocence of the accused, rather it must show that in all human probability, the act must have been done by the accused.

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It also cannot be ignored that there was a gap of sufficient duration of time since the accused was seen with the deceased in the night till the body was recovered in the next morning. Prosecution has not been able to show any such facts and circumstance that there was no possibility of any other person meeting or approaching the deceased at the place of incidence or before commission of the crime in the intervening period or that the accused person was in exclusive possession of the place where the incident occurred. There can be no fixed or straitjacket formula for the duration of the time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, become impossible. [See: (2007) 3 SCC 755 para-34 (State of Goa Versus Sanjay Thakran and another]

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The vehicle / tractor was taken towards Satgharwa village by these two appellants along with the deceased who, as per the statement of PW-5, had the

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responsibility to collect construction materials from Chandwa from the contractor and drop at Satgharwa where construction of Parahiya Aawas (house) was being carried out. Even as per the statement of PW-5, the deceased had worked only for last two days at village Satgharwa in relation to construction of Parahiya Aawas (house). The Medical Expert (PW-7) who conducted autopsy on the body of the deceased on 15.10.2006 at 10.45 am, has during trial, proved the ante mortem injuries on the body of the deceased, which are as under:

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i. Bleeding from both ear. ii. Dislocation of temporal mandibular joint of right side. iii. Abrasion 3” x ½ “on left upper chest 2” lateral to midline anterior aspect. iv. Abrasion 3” x 2” on left chest 2” below armpit axillary region. v. Abrasion 4” x 1” on left lower chest 3” below injury no. iv. vi. Abrasion 6” x 2” on back of left chest. vii. Abrasion 3” x 1” on right chest back side. viii. Abrasion 2” x 2” on left lower limb (leg) ix. Abrasion 3” x 2” on right temporal region. B. On dissection

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i. Maninges congested, sub arachnoid hemorrhage, congested brain matter. ii. Lung pale, heart partially filled with floated blood.

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iii. Stomach filled with partially digested food, small intestine filled with gas and liquid, large intestine filled with gas and faecal matter.

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He has opined that death was from cardiorespiratory failure due to hemorrhage and shock. At para-6, he has stated that the injuries seen on dissection of brain matter can be caused by hard and blunt substance such as boulders. In cross-examination at para-8, he has categorically stated that injury no. 1 to 9 can be caused by fall from a rolling vehicle. Statement of prosecution witnesses and the fardbeyan of PW-5 show that the body of the deceased was found by the side of the road near dam. As per the case of the prosecution, deceased was travelling on the tractor. The presence of the dead body by the side of the road and the injuries found on it, as proved by the doctor (PW-7), go to show that all these injuries could have been caused by fall from the rolling vehicle. The tractor was not carrying boulder, even as per the prosecution story, though PW-5 has alleged that these two accused persons had killed his son with boulder and thrown his body by the side of the road. All these three persons – deceased and two accused / appellants – had taken liquor at the village Newadih, as per the statement of PWs-4 and 5, and were obviously drunken. Nature of the injury found on the body of the deceased, as proved by PW-7, could be caused by fall from rolling vehicle. There is no evidence on record, neither is there any eyewitness to the occurrence to show that these injuries were specifically inflicted by these two accused / appellants with intention to

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cause death of Tetar Ganjhu, son of the informant.

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The entire prosecution case hinges upon last seen theory, as observed hereinabove. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant by itself cannot lead to proof of guilt against the appellant. These facts assume further importance on account of absence of proof of motive particularly when prosecution has failed to prove that there was any previous enmity between the accused and the deceased or any dispute prior in point of time. In the facts of the case, in the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation by the accused on their return while crossing the village Newadih to the informant, father of the deceased, cannot be made the basis of conviction. We rely with profit upon the opinion of the Apex Court in the case of Kanhaiya Lal Versus State of Rajasthan [(2014) 4 SCC 715], as relied upon by the Apex Court also in the recent judgment in the case of Anjan Kumar Sarma and others versus State of Assam [(2017) 14 SCC 359]. Para-19 to 21 thereof is usefully quoted hereunder:

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19. The circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. In Kanhaiya Lal v. State of Rajasthan , this Court held that: (SCC p. 719, paras 12 & 15).

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“ 12 . The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere nonexplanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.

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15 . The theory of last seen—the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan .”

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20. In Arjun Marik v. State of Bihar , this Court held that: (SCC p. 385, para 31)

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“ 31 . Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be

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founded.”

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21. This Court in Bharat v. State of M.P. held that the failure of the accused to offer any explanation in his statement under Section 313 CrPC alone was not sufficient to establish the charge against the accused. In the facts of the present case, the High Court committed an error in holding that in the absence of any satisfactory explanation by the accused the presumption of guilt of the accused stood unrebutted and thus the appellants were liable to be convicted.

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In the absence of any definite motive or previous enmity between the accused / appellants and the deceased or informant, there could not be any basis to allege such intention on the part of the accused persons to cause death of the son of the informant. Having carefully scanned the material evidence on record, we are of the considered opinion that the conviction of the appellants based upon last seen theory is fraught with grave doubt, more so in absence of clear motive and categorical opinion of the Medical Expert that all these injuries could be caused by fall from rolling vehicle. As such, we are of the view that it is not safe to uphold the conviction of these appellants on the basis of these circumstantial evidences on record, primarily based on the last seen theory.

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We are therefore inclined to accord the benefit of doubt to these two appellants. They are acquitted from the charges. As such, the impugned judgment of conviction dated 25.01.2008 and order of sentence dated 30.01.2008 is set aside. Appellants who are in custody, be released forthwith if not wanted in connection with any other case.

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In the result, both appeals are allowed. I.A. No. 8577/2013 in Cr. Appeal (DB) No. 567/2009 is closed.

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Let lower court records be sent to the concerned court

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While parting, we record appreciation for the valuable assistance accorded by the learned Amicus Curiae in Cr. (Jail) Appeal (DB) No. 1021/2008 during hearing of this case. The Secretary, Jharkhand High Court Legal Services Committee is directed to pay the admissible legal remuneration to the learned Amicus Curiae within a period of four weeks from the date of receipt of an application together with a certified copy of this judgment.

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( Aparesh Kumar Singh, J)

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(Kailash Prasad Deo, J)

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High Court of Jharkhand, Ranchi Dated 22^nd January 2019 Ranjeet/

Dahru Ganjhu v. State of Jharkhand

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Dahru Ganjhu v. State of Jharkhand

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