Baiju Kumar Soni vs The State Of Jharkhand

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.42 OF 2018

BAIJU KUMAR SONI & ANR. Appellants

VERSUS

STATE OF JHARKHAND Respondent

J U D G M E N T

Uday Umesh Lalit, J.

1. This appeal challenges the judgment and final order

dated 14.07.2017 passed by the High Court of Jharkhand at

Ranchi dismissing Criminal Appeal No.887 of 2009 preferred

by the appellants herein and thereby affirming their

conviction as recorded by the Trial Court in respect of

offence punishable under Sections 364-A, 201, 302 read with

34 IPC.

2. According to the prosecution, a minor girl aged about

3½ years went missing on 08.01.2006 while she was playing

in front of her house. PW10 Anil Prasad Soni, father of

the girl searched for the girl on the first day and 2

thereafter lodged an information vide Sanha No.142/06 dated

09.01.2006 at 9.00 a.m. with the Officer In-charge of

Bhurkunda Police Station, based on which a crime was

registered vide FIR No.11/06 dated 13.01.2006 under

Sections 364 and 365 IPC with Police Station Bhurkunda, S.

Div. Ramgarh, District Hazaribagh.

3. According to the prosecution, a call was received by

said PW10 on 11.01.2006 at about 1236 Hours, from Ramgarh

STD Booth, from an unknown person threatening him that his

brother was getting smarter for which said PW10 may have

to pay the price. The caller told PW10 that his daughter

would reach by the evening and told him not to tell the

administration.

4. On the next day i.e. on 12.01.2006 at about 1335 Hours,

PW10 again received a call from another STD booth i.e. from

Patratu STD Booth, but it was a missed call. It appears

that around the same time, another call was received by PW4

Uday Soni, brother of said PW10. The caller threatened

said PW4 and told him that the caller had kidnapped his

niece. When the caller was asked about the proof of the

fact, the caller stated that PW4 could get the proof on the

roof of the temple near their house. Thereafter, a poly bag 3

was found on the roof of the temple in which there was one

red top and slippers of the girl as well as a threatening

letter (Exhibit-II with Mark X – Written Paper of a copy

for Identification)

5. It appears that a dead body of the girl was recovered

in a black coloured rexin bag from the Dam on or about

18.01.2006 by Khelari Police Station.

Postmortem Report indicated:

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

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

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

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

The dead body of the girl was identified to be that of

the daughter of PW10 and thereafter Sections 302 and 201

IPC were also added in respect of the crime already

registered.

4

6. During the course of the investigation, the appellants

were arrested. It is not clear from the record how and by

whom the role of the appellants in the crime was suspected

to cause their arrest. The appellants were neither named

in the FIR nor any person had named them in any statement

to the police. Pertinently, the FIR had named somebody

else as suspect. Soon after their arrest, the confessional

statements of the appellants were recorded by the police

pursuant to which following items were recovered:

(i) A Scarf of the girl was recovered from the

house of appellant no.2;

(ii) A drawing book was recovered from the house of

appellant no.1 from which a piece of paper was

torn on which threatening letter (Exhibit II)

was stated to have been written.

7. After completion of investigation, charge-sheet for the

offences punishable under Sections 364-A, 201, 302 read

with 34 IPC was submitted against the appellants and they

were tried for having committed said offences. 5

8. The evidence unfolded by the prosecution mainly

comprised of:

(i) PW10, his brother PW4 who deposed having received

telephone calls but the witnesses could not

identify the caller from the voice;

(ii) The prosecution also placed reliance on the

testimony of PW7 Vikas Kumar who used to run

Vikas STD Booth at Patratu produced two bills

(Exhibit-I) indicating that on 12.01.2006 two

calls were made from his STD booth at 1327 Hours

and 1338 Hours to two Mobile Nos.9934152854 and

9431336988 respectively. PW7 identified the

appellants to be the persons who had come to his

STD Booth on the relevant date and made those two

calls.

(iii)PW5 Uttam Kumar Kharbar deposed that on

09.01.2006, when he boarded a train from

Bhurkunda Railway Station, he had seen the

appellants carrying a stuffed rexin bag which

they had carried along with them. According to

the prosecution, it was that rexin bag in which

the dead body of the girl was ultimately found

in the Dam.

6

9. The following circumstances were thus relied upon by

the prosecution:

(1) On 12.01.2006 PW7 who was running the STD Booth

had seen both the appellants at his telephone

booth and two calls were made by them to mobile

numbers indicated above at 1327 Hours and 1338

hours.

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

appellant.

(3) A drawing book was found in the house of first

appellant which could be associated with the

threatening letter (Exhibit II).

(4) PW5 had seen both the appellants with a stuffed

rexin bag on 09.01.2016 boarding a train at

Bhurkunda Railway Station.

(5) The dead body of the girl was ultimately found

in a rexin bag at a distance about 50 kms. from

the house of PW10.

(6) Some wrappers of Chocolates and Biscuits were

found near the house of the appellants. 7

10. On the basis of these circumstances, the prosecution

contended that the offences in question were established

against the appellants. The case of the prosecution was

accepted by the Trial Court, which by its judgment and order

dated 17-20.04.2009 convicted both the appellants and

sentenced them to suffer 10 years of imprisonment for the

offence under Section 364-A IPC and to suffer life

imprisonment for the offence under Section 302 read with

Section 34 IPC. Though convicted, no separate order of

sentence was recorded in respect of offence under Section

201 read with Section 34 IPC. All the sentences were

directed to run concurrently.

11. The appellants being aggrieved approached the High

Court of Jharkhand at Ranchi by filing Criminal Appeal

No.887 of 2009, which came to be rejected by the High Court.

12. According to the High Court, the recovery of the Scarf

of the deceased, recovery of the drawing book, pages of

which were used for writing threatening letter as well as

the fact that PW5 had seen the appellants with the same

rexin bag in which dead body was found, were circumstances

sufficient to convict the appellants. 8

13. In this appeal, we heard learned counsel for the

appellants as well as the learned counsel for the

respondent-State and with their assistance, we have gone

through the entire record.

14. The law on the point is very well settled that in a

case based on circumstantial evidence, every circumstance

must be fully proved and all the circumstances must form a

chain of evidence so complete as to exclude every hypothesis

other than the guilt of the accused. It was stated by this

Court in Sharad Birdhichand Sarda v. State of Maharashtra1:

“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, (1973) 2 SCC 793, where the following observations were made: 1

(1984) 4 SCC 116 9

"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.”

15. In Nizam and Another vs. State of Rajasthan2, the law

on the point was reiterated while acquitting the accused

of the charges under Section 302 read with 201 IPC.

Paragraphs 9 and 10 of the decision were:-

“9. The principle of circumstantial evidence has been reiterated by this Court in a plethora of cases. In Bodhraj v. State of J&K (2002) 8 SCC 45, wherein this Court quoted

2 (2016) 1 SCC 550 10

a number of judgments and held as under: (SCC pp. 55-56, paras 10-11)

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.

(See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99, Eradu v. State of Hyderabad AIR 1956 SC 316, Earabhadrappa v. State of Karnataka (1983) 2 SCC 330, State of U.P. v. Sukhbasi (1985) Supp SCC 79, Balwinder Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P. (1989) Supp (1) SCC

560). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR (1954) SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

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

‘21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain 11

of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.’”

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

“12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.”

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

16. In the light of these settled principles, from the

facts and circumstances it is evident:

a) Though PW7 stated that two calls were made from

his STD Booth on 12.01.2006 at about 1327 Hours 12

and 1338 Hours to specified mobile numbers,

nothing has been brought on record that those

two mobile numbers either belonged to PW4 and

PW10 or were in any way under their control.

In order to establish as a circumstance that

on the relevant day threatening calls were

received by the said PWs 4 and 10 from the

appellants, the important fact which ought to

have been established was that those two mobile

numbers either belonged to or were under the

control of said PWs 4 and 10. Even if we accept

the theory that said PW7 had identified the

appellants to be the ones who had made two

calls, that does not lead us to infer that the

calls must have been made to PWs4 and 10. This

circumstance has not been fully established

which could be read against the appellants.

b) Though drawing book had been received from the

house of appellant no.1 and it was the case of

the prosecution that the threatening letter

(Exhibit-II) was written on a piece of paper

from said drawing book, no attempts were made

either to have any forensic analysis or examine 13

handwriting expert to establish that the

writing in the threatening letter was either

of the appellants or could be associated with

them.

17. Circumstance No.4 as stated above suggests that the

dead body of the deceased was carried by the accused in a

rexin bag on the day after the girl went missing. The dead

body was found ten days later on 18.01.2006. The post

mortem, conducted thereafter, indicated time of death to

be between 3 to 7 days. Even if the outer margin is

considered to be the limit, the circumstance by itself does

not fit in, assuming it to be completely against the

appellants.

18. We are then left with circumstances at Serial Nos.2, 5

and 6. These circumstances do not form a chain so complete

as not to leave any reasonable doubt or exclude every

possible hypothesis except the one to be proved, nor are

the circumstances sufficient and adequate to hold that the

prosecution had established its case beyond any reasonable

doubt.

14

19. Considering the totality of the circumstances, in our

view, the prosecution has failed to establish the case

against the appellants. Consequently, the appellants are

entitled to benefit of doubt. We, therefore, allow this

appeal and acquit the appellants of the charges levelled

against them.

The appellants be released immediately, unless their

custody is required in connection with any other offence.

...........................J. [UDAY UMESH LALIT]

...........................J. [VINEET SARAN] NEW DELHI;

AUGUST 1, 2019 15

ITEM NO.108 COURT NO.7 SECTION II-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No.42/2018

BAIJU KUMAR SONI & ANR. Appellants

VERSUS

STATE OF JHARKHAND Respondent

(IA No.27276/2019 – FOR GRANT OF BAIL)

Date : 01-08-2019 This matter was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE UDAY UMESH LALIT HON'BLE MR. JUSTICE VINEET SARAN

For Appellant(s) Mr. Shree Prakash Sinha, Adv.

Mr. Rakesh Mishra, Adv.

Ms. Mohua Sinha, Adv.

Ms. Jagrati Bharti, Adv.

Mr. Shekhar Kumar, AOR

For Respondent(s) Mr. Merusagar Samantaray, AOR

UPON hearing the counsel the Court made the following O R D E R

This appeal is allowed, in terms of the Judgment.

Pending application(s), if any, shall stand disposed of.

(MUKESH NASA) (SUMAN JAIN) COURT MASTER BRANCH OFFICER

(Signed Judgment is placed on the file)