Allowed

Diku Kerai v. the State of Jharkhand

Jharkhand HC3 Mar 2020Cr.A(DB)/430/2018

Case brief

AI extract

What is this about?

The High Court allowed the appeals by the appellants convicted of murder and disappearance of body. The Court discharged the appellants, holding that the prosecution failed to prove the identity of the deceased, crime scene, or incriminating circumstances, rendering the conviction unsafe based on circumstantial evidence.

What did the court decide?

Appellants acquitted; conviction and sentence set aside; appellants set free forthwith.

Diku Kerai Vs the State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Criminal Appellate Jurisdiction)

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Criminal Appeal (DB) No. 576 of 2018

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With

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Criminal Appeal (DB) No. 430 of 2018

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(Against the judgment of conviction dated 22.02.2018 and the order of sentence dated 24.02.2018 passed by the learned Additional Sessions Judge-II, Chaibasa in Sessions Trial No. 66 of 2011)

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Madho @ Madlal Bankira @ Jeewan Singh @ Madho Bankira aged about 30 years, son of Ram Bankira, resident of Village-Kulundu, P.O. & P.S.- Sonua, District-West Singhbhum … Appellant

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[In Criminal Appeal (DB) No. 576 of 2018]

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Diku Kerai, aged about 27 years, son of Ganga Ram Kerai, resident of Village-Kudaburu, P.O. & P.S.- Sonua, District West Singhbhum (Jharkhand) … Appellant

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[In Criminal Appeal (DB) No. 430 of 2018]

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Versus

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The State of Jharkhand … Respondent

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For the Appellant : Mr. Jitendra S. Singh, Advocate [In Criminal Appeal (DB) No. 576 of 2018] Mrs. Shruti Shrestha, Advocate [In Criminal Appeal (DB) No. 430 of 2018] For the State : Mrs. Laxmi Murmu, A.P.P -------

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PRESENT

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HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA

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JUDGMENT

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rd . Dated: 03 March, 2020

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Per, Shree Chandrashekhar, J

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Oral

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A First Information Report was lodged against unknown on the basis of fardbeyan of Samar Singh Diggi. The informant is village Munda. After the investigation a charge-sheet was submitted against Madho @ Madlal Bankira @

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Jeewan Singh @ Madho Bankira, Diku Kerai and Ramesh Banra @ Rame and the investigation in respect of Chokro Chaki and Ram Bankira was kept pending. These three persons have faced the trial on the charge under section 302/34 of the Indian Penal Code for causing murder of Sarita Bankira, section 201/34 of the Indian Penal Code for causing disappearance of her dead body and section 120B/34 of the Indian Penal Code.

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2. In Sessions Trial No. 66 of 2011, they have been convicted and sentenced to R.I for life and fine of Rs.10,000/under section 302/34 of the Indian Penal Code, R.I for three years and fine of Rs.10,000/- under section 201/34 of the Indian Penal Code and R.I for life and fine of Rs. 10,000/- under section 120B of the Indian Penal Code.

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3. During the trial the prosecution has examined 11 witnesses; the informant is P.W.5.

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4. The case of the prosecution is based on circumstantial evidence. To prove the charge against the accused persons, the prosecution has laid evidence on: (i) last-seen-together, (ii) motive, and (iii) medical evidence.

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5. In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully proved and the circumstances must be conclusive in nature. The prosecution must also prove that all the circumstances taken together form such a chain without any gap from which the only hypothesis that can be established is guilt of the accused and no hypothesis consistent with innocence of the accused is possible. In “ Bodhraj @ Bodha & Others Vs. State of Jammu and Kashmir” reported in (2002) 8 SCC 45 , the Hon'ble Supreme Court has held as under,

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“ 10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person......”

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6. The prosecution case as narrated by the informant in

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his fardbeyan is that in the after-noon of 19.03.2010 he was informed by the villagers that a dead body was lying by the side of Ragrakocha Canal. He had sent the Chowkidar , namely, Budhan Singh Sandil and Dakua of the village, namely, Kango Diggi to verify the information. They have found a corpse with severed head. They have seen bangles in one hand of the dead body. He has further stated that the Chowkidar told him that on 06/07.03.2010 on the occasion of Maghe festival he had seen a boy from Kudaburu taking away a girl of Kulundu on inducement of marriage and he has expressed a doubt that the dead body might be of that girl. During the trial the informant has turned hostile. He has stated about a dead body found in Ragrakuja forest. He has also stated that he had sent information to the police through the Chowkidar and Dakua of the village and during his cross-examination by the prosecution he has admitted that when his fardbeyan was recorded at that time Manoj Kumar Bankira who is Munda of village-Kulundu was also present, but he has denied that he has stated before the police that a boy of Kudaburu had fled away with a girl of Kulundu.

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7. P.W.1 is the Chowkidar and P.W.4, P.W.5, P.W.6, P.W.7 and P.W.8 who are the co-villagers have also been declared hostile.

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8. P.W.2 is brother of Sarita Bankira and P.W.3 is Dakua of the village. He is a formal witness. The brother of Sarita Bankira has stated that his sister has been killed on 06.03.2010. On that day Maghe festival was celeberated and the boys and girls were performing dance and song. Madho and Ramesh had also gone there. In course of dance Diku (Kerai) said that he would marry Sarita. He has further stated that he has seen the accused persons taking away his sister and assaulting her with knife. He was threatened by the accused persons and thereafter he came back home. In this context it needs to be recorded that the investigating officer who has been

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examined as P.W.10 has stated in the court that between 06/07.03.2010 to 19.03.2010 he has not received any missing report in respect of Sarita Bankira. If evidence of P.W.2 has to be accepted, it must be concluded that his conduct in not informing the police and, that too, if he has seen the accused persons assaulting his sister is highly unnatural and on that ground it must be held that his testimony is unbelievable.

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9. Identity of the dead body which was recovered on 20.03.2010 was sought to be proved through bangles and a thread on the hand. Dr. J. Srinivas Rao-P.W.11 who has conducted the post-mortem examination on 22.03.2010 on the dead body has stated that the body was highly decomposed, head separated from trunk and no tissue, hair or facial mussel were found on the skull. The skull was without scalp tissues and scalp hairs were missing. He has also found that the facial muscles and tissues had completely gone exposing the facial bones. The neck muscles were decomposed and the cervical vertebra was exposed. The chest wall muscles, abdominal wall muscles, pelvic tissues, left arm muscles, left shoulder joint, left elbow joint muscles, left forearm and left hand muscles, right shoulder, right arm, right elbow, right forearm and right hand muscles were decomposed. There was thus no physical feature of the deceased present on the basis of which the dead body could have been identified.

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10. That apart, there is serious controversy and substantial doubt on identification of the body which was recovered from the forest on 20.03.2010. The doctor has admitted during his cross-examination that from the post-mortem report identity of the dead body cannot be proved. He has said that he was not shown any photograph and no D.N.A test of skull or any part of the body was conducted. P.W.9 who is the investigating officer has stated that the dead body was not identified and he has not seized the bangles and thread from the dead body. He has further admitted that between

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20.06.2010 and 25.11.2010 he did not visit the place of occurrence and he has not obtained any photograph of Sarita Bankira from her parents. From the place of occurrence no cloth was found and the crime weapon was not recovered. P.W.10 is another investigating officer. He has deposed in the court that in course of investigation nobody identified the dead body but a doubt was expressed that the dead body might be of Sarita Bankira.

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11. The law on absence of corpus delicti is by now well-settled. To prove a charge of murder it is not necessary that the dead body must be produced, but the prosecution must lead clinching evidence, direct or circumstantial, which would conclusively establish that death of a person has occurred [refer, “Rishipal Vs. State of Uttarakhand” reported in (2013) 12 SCC 551 ]. From the evidences led by the prosecution, all that we find is that on the occasion of Maghe festival Sarita Bankira was seen dancing with the accused persons in the evening of 06.03.2010 and except P.W.2 who has alleged assault upon Sarita Bankira by the accused persons which evidence must be discarded, no prosecution witness has spoken about any overt act by the accused persons which could have reflected their intention to cause death of Sarita Bankira.

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12. The prosecution has led in evidence confessional statements of the appellants which were recorded on 27.08.2010. In the first place the time gap between the date of occurrence and the confessional statement of the appellants which is about six month in this case even if pursuant to their statement any incriminating article was recovered by the police would substantially erode credibility and admissibility of their statement under section 27 of the Evidence Act. As a matter of fact, the confessional statement of the appellants do not disclose a new fact which would come within the purview of “a fact discovered” under section 27 of the Evidence Act. By the time their confessional statements were recorded the dead body was

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already recovered and it has not been identified as of Sarita Bankira. In their confessional statement the appellants have stated that they have killed Sarita Bankira on 06.03.2020 but P.W.11 who has conducted the post-mortem examination over an unidentified dead body which was recovered on 20.03.2010 has opined that the death has occurred within three to seven days of the post-mortem examination. Therefore, the last-seen-together story sought to be established through P.W.2 – other prosecution witnesses have turned hostile – does not satisfy the proximity test as indicated by the Hon'ble Supreme Court in “ Bodhraj @ Bodha ” (supra) and while so, the prosecution cannot rely on the last-seen-together evidence as spoken by P.W.2.

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13. The recovery of blood-stained shirt and pant of Madho @ Madlal Bankira @ Jeewan Singh @ Madho Bankira has not been proved by the prosecution and in the absence of identification of the dead body, we find that only on suspicion the appellants have been implicated in this case.

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14. In the final analysis, we hold that the prosecution has failed to prove any incriminating circumstance against the appellants and the charges under section 302/34 of the Indian Penal Code, section 201/34 of the Indian Penal Code and section 120B of the Indian Penal Code are not proved.

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15. The appellants are acquitted of the criminal charges framed against them in Sessions Trial No. 66 of 2011.

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16. Accordingly, the judgment of conviction and sentence of the appellants namely, Madho @ Madlal Bankira @ Jeewan Singh @ Madho Bankira and Diku Kerai for the offence under section 302/34 of the Indian Penal Code, section 201/34 of the Indian Penal Code and section 120B of the Indian Penal Code passed by the Additional Sessions Judge-II, Chaibasa in Sessions Trial No. 66 of 2011 are set-aside.

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17. Mrs. Laxmi Murmu, the learned A.P.P states that the appellants are in custody.

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18. Accordingly, the appellant, namely, Madho @ Madlal Bankira @ Jeewan Singh @ Madho Bankira in Criminal Appeal (DB) No. 576 of 2018 and the appellant, namely, Diku Kerai in Criminal Appeal (DB) No. 430 of 2018 shall be set free forthwith if not wanted in connection to any other criminal case.

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19. In the result, Criminal Appeal (DB) No. 576 of 2018 and Criminal Appeal (DB) No. 430 of 2018 are allowed.

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20. Let the lower-court records be sent to the court concerned forthwith.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated: 03^rd March, 2020 Amit N.A.F.R

Diku Kerai v. the State of Jharkhand

Case brief

What is this about?

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Diku Kerai v. the State of Jharkhand

Case brief

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