Patna High Court
Rajesh Kumar Bahardar @ Rajesh Bahardar … vs The State Of Bihar on 24 January, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1053 of 2017
Arising Out of PS. Case No.-207 Year-2014 Thana- PALASI District- Araria
======================================================
Rajesh Kumar Bahardar @ Rajesh Bahardar @ Bokai Bahardar, son of Gholai
Bahardar of Village - Belwa Ghat Tola Badhela, P.S. - Araria, District -
Araria.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant/s : Mr. Chandra Maoleshwar, Advocate
Mr. Baleshwar Kamat, Advocate
Mr. Anamul Haque, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, Addl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 24-01-2025
Heard learned counsel for the appellant and learned
Additional Public Prosecutor for the State.
2. This appeal has been preferred for setting aside the
judgment of conviction dated 03.01.2017 (hereinafter referred to
as the 'impugned judgment') and the order of sentence dated
05.01.2017 (hereinafter referred to as the 'impugned order')
passed by learned 3rd Additional District and Sessions Judge,
Araria (hereinafter referred to as the 'learned trial court') in
Sessions Case No. 30 of 2015/ Trial No. 52 of 2016 arising out of
Palasi P.S. Case No. 207 of 2014.
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3. By the impugned judgment, the appellant has been
convicted for the offences punishable under Sections 364, 376,
379, 411, 302 and 201 of the Indian Penal Code (in short 'IPC')
and by the impugned order, the appellant has been ordered to
undergo life imprisonment for each of the offences under Sections
364, 376 and 302 IPC. He has also been ordered to undergo
imprisonment for seven years under Section 201 IPC. Further, he
has been ordered to undergo three years each for the offence under
Sections 379 and 411 IPC. The appellant has to pay a fine of
Rs.50,000/-. All the sentences are to run concurrently.
Prosecution Case
4. The prosecution story is based on the fardbeyan of
Farindra Ranjan Kumar (PW-9) recorded by SI Dhananjay Kumar,
SHO Palasi Police Station on 12.09.2014 at 20:30 hours. In his
fardbeyan (Exhibit '3'), he has stated that on 08.09.2014 at about
18:30 hours his wife, who was working as a Warden at Kasturba
Gandhi Balika Awasiya Vidyalaya, Palasi, District-Araria left for
home from Palasi but did not come. In this regard, on 09.09.2014,
the informant lodged a Sanha that his wife (hereinafter called
'victim/deceased') was coming from Palasi by tempo but despite
five days having been passed, there is no trace of his wife.
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5. On the basis of this fardbeyan, Palasi P.S. Case No.
2007 of 2014 dated 12.09.2014 was registered under Section
364/34 IPC against unknown persons. After investigation, Police
submitted a chargesheet bearing No. 224 of 2014 dated 06.11.2014
against this appellant under Sections 364, 376(A), 302, 201, 379
and 411 IPC. On the basis of this chargesheet, learned Chief
Judicial Magistrate, vide his order dated 02.12.2014 took
cognizance of the offences under Sections 364, 376(A), 302, 201,
379 and 411 IPC and on 15.12.2014 committed the records to the
court of sessions. After receiving the records, Sessions Case No.
30 of 2015/ Trial No. 52 of 2016 was registered. On 07.02.2015,
charges were framed under Section 364, 376(A), 302, 201, 379
and 411 IPC. Charges were read over and explained to the
appellant in Hindi which he denied and claimed to be tried.
6. In course of trial, the prosecution examined as many
as eleven witnesses and exhibited several documents to prove the
prosecution case. The names of the prosecution witnesses and the
exhibits are being shown hereunder in tabular form:-
List of Prosecution Witnesses:-
PW-1 Rita Kumari Sadgi
PW-2 Md. Razzak
PW-3 Md. Sadik
PW-4 Bhedilal Chaudhary
PW-5 Ekhlaque Ahmad
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PW-6 Md. Mukhtar
PW-7 Dr. AG Hasan
PW-8 Md. Shahnawaz
PW-9 Fanindra Ranjan Kumar
PW-10 Sheo Nandan Prasad
PW-11 Prashant Shrivastav
List of Exhibits:-
Ext-1 Lkk{kh ,[kyk[k vgen dk tCrh lwph ij gLrk{kj
Ext- 2 Lkk{kh la0& 7 Mk0 vyh glu iksLVekVZe dk
fy[kkoV ,oa gLrk{kj dk igpkurs gSA
Ext- 3 Lkk{kh la+0 &9 QuhUnz jatu dqekj QnZC;ku ij vius
gLrk{kj dk igpkurs gSA
Ext-3/1 Lkk{kh la0& 9 QuhUnz jatu dqekj efe;k llqj
fo"ks"oj izlkn JhokLro gLrk{kj QnZC;ku ij
Ext-3/2 Lkk{kh la0& 10 f"ko uUnu izlkn jk; rRdkfyu Fkkuk
izHkkjh /kUut; dqekj dk QnZC;ku ij ys[k ,oa
gLrk{kj
Ext- 1/A Seizure List
Ext- 4 Sanha No- 180/14 dt 9.9.14
Ext- 5 Confessional statement of Rajesh Kumar Bahardar
Ext-6 Inquest Report
Ext-7 Mobile CDR total Nine Sheet
Ext-8 F.S.L. Report
Ext-No- Black Nokia Mobile IMEI-
Mo I No.351948/05/556302/2
Ext-No- Black Carbon Mobile
Mo II
Findings of the Learned Trial Court
7. Learned trial court after examining the evidence of
the prosecution witnesses found that the case is based on the
circumstantial evidence for which all the chains of the occurrence
must be connected to each other. In that connection, the learned
trial court examined the evidence of PW-1 and PW-2 who deposed
that on 08.09.2014 they met the victim/deceased between 6-6:30
PM at the school gate while she was going to her home at Araria.
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Thereafter, the learned trial court considered the evidence of PW-3
(Clerk of Tempo Stand) who deposed that he saw the deceased
sitting in the tempo bearing No. BR11M-8931 at Palasi Bus/Auto
Stand. The driver of the said tempo is Md. Shahnawaz (PW-8).
Though the prosecution has declared PW-3 hostile but the learned
trial court took note of his evidence with the evidence of other
witnesses.
8. The learned trial court thereafter further considered
the evidence of PW-8 to connect the chain of circumstances. In
paragraph '1' of his deposition, PW-8 deposed that on the alleged
date of occurrence at 6-6:30 PM, he was at Palasi Chowk with his
tempo and the teacher of Kasturba Vidyalaya, Palasi was also
sitting in his tempo. He has further deposed that one person had
got seated another person, whose name is not known to him but he
identified him as the fishmonger. PW-8 further identified that the
another person who was in his tempo for Araria on the said date
with the teacher of Kasturba Vidyalaya, Palasi was in the dock.
The person who was identified by this witness disclosed his name
as Rajesh Bahardar who is appellant in this case. This witness
further deposed that the victim/deceased came to 'Bhebhra'
Chowk by his tempo and thereafter she had gone in the tempo of
Md. Mokhtar (PW-6) to Araria. The learned trial court thereafter
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took the evidence of PW-4 to connect the chain of circumstance.
PW-4 is the brother-in-law of the appellant who deposed that the
appellant is his brother-in-law. He had gone to see off his brother-
in-law (appellant) where the appellant sat in the tempo in which
one woman was also sitting.
9. The learned trial court found that these evidences
clearly establish that the appellant had come in the tempo of PW-8
to 'Bhebhra' Chowk in the evening on the date of occurrence. The
learned trial court relied on the evidence of PW-6 who deposed
that for coming Araria he was picking the passengers at 'Bhebhra'
Chowk and in that course, one woman had come first at Bair
Gachhi, some passengers also boarded his tempo. When he went to
a paan shop, one person came to him and said that the lady who is
sitting in the vehicle of PW-6 is his wife and she is not willing to
accompany him due to annoyance and asked him to stop the
vehicle at 'Panar Pul' where he stopped the vehicle and the women
stepped down firstly and that person also stepped down there and
he paid the fare and he asked him to proceed with the vehicle. The
learned trial court found that this witness has categorically stated
in his evidence that the woman who sat in his tempo had alighted
from another tempo at 'Bhebhra' Chowk and as soon as he started
his vehicle the another person sat in his tempo. The learned trial
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court found that from the evidence of PW-8 (paragraph '1') and
PW-6 (paragraph '6') and that of PW-4 that the person who sat in
the tempo was the appellant and the evidences of PW-3, PW-6 and
PW-8 clearly establish that the woman who was sitting in the
tempo was the deceased wife of the informant.
10. Learned trial court took note of the evidence of PW-
6 (paragraph '9') in which he deposed that the man and woman
who were sitting in his tempo were not talking to each other and in
the opinion of the learned trial court, this indicates that the man
(appellant) and woman (deceased) were not friends. Learned trial
court found from the evidence of above-mentioned witnesses that
on 08.09.2014 at about 7:00 PM, the deceased came up to
'Panar Pul' through the tempo of Md. Mokhtar (PW-6), thereafter
she became traceless for which her husband lodged a sanha DE
No. 180 of 2014 dated 09.09.2014. Learned trial court took the
evidence of PW-3 and PW-8 together and did not find any reason
to disbelieve the evidence of PW-3.
11. The learned trial court analysed the evidence of PW-
10 who got the CDR of the mobile number of the deceased and
after getting subscriber details and tower location, the I.O. found
that the mobile of the deceased is being used through SIM No.
7250535937 which is in the name of Parmanand Bahardar who is
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the brother of the appellant and thereafter the mobile was seized
from Rajesh Bahardar (appellant). Learned trial court found from
the evidence of I.O. (PW-10) that he arrested the appellant and
during interrogation, he accepted that he committed rape with the
victim and on giving threat for lodging the case killed her by
pressing her neck and threw the dead body in Parmar River.
Thereafter, the I.O. conducted search drive with swimmer in
Parmar River keeping the appellant with himself and during
search, found one dead body in the bush of river in the area of
'Khataghat' which was taken out and on seeing that the appellant
identified the dead body saying that this is the body which was
thrown by him in the river after commission of rape, the I.O.
recorded the confessional statement. The learned trial court took
note of Section 27 of the Indian Evidence Act and opined that the
confessional statement of the appellant is being corroborated by
the evidence of prosecution witness who had described the
circumstances right from boarding of the deceased on the tempo
on 08.09.2014 till her stepping down at 'Panar Pul' and observed
that the confessional statement of the accused can be used against
the appellant. Learned trial court took note of the evidence of
Doctor (PW-7) who found abrasion mark in the private part of the
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deceased which indicates about rape, though, the FSL report
(exhibit '8') had not indicated about rape.
12. Finally, the learned trial court after close scrutiny of
the evidences available on the record came to a conclusion that the
prosecution has been able to prove it's case against the appellant
beyond all reasonable doubts and held the appellant guilty for the
offence committed under Sections 364, 376, 379, 411, 302 and 201
IPC.
Submissions on behalf of the appellant
13. Learned counsel for the appellant has assailed the
impugned judgment on various grounds. It is submitted that there
is no reliable evidence on the record to the effect that the appellant
had travelled in the tempo of PW-6 and PW-8 together with the
deceased lady and that he had alighted with the deceased lady from
the tempo across the Panar Bridge.
14. Learned counsel submits that the seizure list
showing the recovery of two mobile phones from the house of the
appellant and that one of them belonged to the deceased is not
worth reliable for the reason that the prosecution has failed to
bring any cogent evidence to prove that the alleged recovered
Nokia mobile belonged to the deceased. The seizure list witness
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(PW-5) has denied that any mobile phone was recovered in his
presence.
15. Learned counsel submits that PW-6 and PW-8, who
are the two tempo drivers, were produced before the learned
Magistrate for recording their statement under Section 164 CrPC
only on 15.09.2014, i.e. after two days of the recovery of the dead
body of the deceased lady. Both the witnesses have stated in their
evidence that the appellant was shown to them by police in the
Police Station and thereafter their statements were recorded under
Section 164 CrPC.
16. Learned counsel submits that the learned trial court
has convicted the appellant amongst others one under Section 376
IPC even as there is absolutely no evidence to frame charge under
the said Section. This charge has been found proved by the learned
trial court on the solitary basis of confessional statement of the
accused which would not be admissible in evidence.
17. Learned counsel submits that the theory of the
prosecution that dead body was recovered on the disclosure made
by this appellant after his arrest in connection with this case would
not inspire confidence inasmuch as it would appear that in the
arrest memo which has been prepared on 13.09.2014, the time of
arrest has not been mentioned by police. It is his further
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submission that in this case, the parameters which are required to
be satisfied to prove a case based on circumstantial evidence has
not at all been satisfied by the prosecution. Reliance has been
placed on the judgment of the Hon'ble Supreme Court in the case
of Sharad Birdhichand Sarda Vs. State of Maharashtra
reported in (1984) 4 SCC 116 to submit that unless the
criminological chain of events is duly established, it would not be
safe and prudent to convict the appellant in this case.
18. It is ultimately submitted that the learned trial court
has grossly erred in appreciation of evidences on the record hence
the impugned judgment and order are liable to be set aside.
Submissions on behalf of the State
19. On the other hand, learned Additional Public
Prosecutor for the State has defended the impugned judgment and
order of the learned trial court. It is submitted that on a cumulative
reading of the deposition of the prosecution witnesses it would
appear that the chain of criminological events is complete in this
case and there would be no iota of doubt that the appellant is guilty
of committing the offences for which he has been charged.
20. Learned Additional Public Prosecutor has drawn the
attention of this Court towards the evidence of the prosecution
witnesses who have proved the fact that on the date of occurrence
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i.e., on 08.09.2014, the victim lady had left her school premises at
about 6:00 PM. PW-1 and PW-2 had met her while leaving the
school and proceeding towards the main gate of the school to take
a vehicle for her home.
21. Learned counsel submits that PW-6 and PW-8 are
the two tempo drivers who have proved the fact that the victim
lady and this appellant both had been sitting in their tempo and
lastly, he had given PW-6 to understand that the victim lady was
his wife who was not happy with him for some reason and did not
want to accompany him so he had requested the tempo driver (PW-
6) to stop the vehicle at Panar Bridge, he had also paid the fare on
behalf of the victim lady and as soon as she alighted from the
tempo, the appellant told PW-6 to proceed ahead with the tempo. It
is submitted that PW-6 is an independent witness and there is no
reason to disbelieve him.
22. Learned Additional Public Prosecutor has further
submitted that from the evidence of the I.O. (PW-10) it would
appear that he had obtained tower location of the mobile phone of
the victim who was using mobile number 7764967103. He has
recorded in course of investigation in paragraph '12' of the case
diary the mobile number of the deceased lady and that he had
obtained the Call Detail Record (CDR) of the same. He had found
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that the said SIM was being used from a mobile bearing IMEI
Number 351948055563020. PW-10 has also stated that in course
of investigation he had found that on 10.09.2014 mobile number
7250535937 was being used at the said location which was in the
name of one Parmanand Bahardar who happened to be the brother
of the appellant. PW-10 had seized the said mobile and had
prepared the seizure list (Exhibit '1/A'). He had arrested the
appellant and on his disclosure, the dead body was recovered from
Khata Ghat.
23. Learned Additional Public Prosecutor submits that
this is a well proved case by the prosecution and the learned trial
court has rightly appreciated the whole evidences on the record.
Consideration
24. After hearing learned counsel for the appellant and
learned Additional Public Prosecutor for the State as also upon
perusal of the trial court records, I find that the whole prosecution
case is based on circumstantial evidences, therefore, in view of the
settled propositions of law as enunciated by the Hon'ble
Constitution Bench of the Supreme Court in the case of Sharad
Birdhichand Sarda (supra), it would be essential to see as to
whether the prosecution has been able to establish the
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circumstances which had a connection with the transaction which
ended up in death of the victim.
25. A perusal of the evidence of PW-1, who is a teacher
in the same school and PW-2, the night guard of the school would
show that the deceased/victim was working as a Hostel Warden in
Kasturba Gandhi Residential School, Palasi within the Palasi
Police Station in the District of Araria. On 08.09.2014, she had
given charge of the hostel to PW-1 and told her that she would go
to her home at Araria. She left the school in the evening at about
6:00 PM. PW-1 has stated that the pakki road from where the
deceased used to take vehicle is at a distance of about 100 steps
only from the school and she had gone to leave the
deceased/victim upto the gate of the school whereafter she
returned and the victim proceeded to take vehicle. The evidence of
PW-2 fully corroborates the version of PW-1. Thus it is established
from the evidence of these two witnesses that the victim lady had
left her school at about 6:00 PM on 08.09.2014 for her home at
Araria.
26. Md. Sadik (PW-3) is a Tempo Stand Clerk at Tempo
Stand, Palasi. In his examination-in-chief, he has stated that he was
at the Palasi Tempo Stand where he had seen the victim in Tempo
No. BR-11M-8931 which belong to Shahnawaz Tempo Driver.
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PW-3 identified the victim. The said vehicle was on the way to
Jokihat and he had seen that some other passengers were also there
in the vehicle but he did not know them. He has stated that he
knows Bhedva but at that time he had not seen Bhedva in the
tempo. The prosecution declared PW-3 a hostile witness and cross-
examined him. His attention was drawn towards his previous
statements made before police in which he had stated that on the
said tempo, one Bhedi Lal Chaudhary had got boarded his relative
and had paid the tempo fare for him. At that very time madam
arrived and had occupied the seat beside him whereafter the driver
Shahnawaz proceeded with the vehicle towards Jokihat. PW-3
denied the fact that he had made such a statement before the I.O.
but the I.O. (PW-10) has stated in course of his evidence
(paragraph '7') that in paragraph '39' of the case diary he had
recorded the statement of Bhedi Lal Chaudhary who had told him
that in the same tempo, on the middle seat, the deceased teacher of
Kasturba Gandhi Residential School was sitting and he had also
said that Rajesh Kumar Bahardar @ Bokai (the appellant) was a
person of immoral character.
27. Bhedi Lal Chaudhary (PW-4) is the brother-in-law
(bahnoi) of the appellant. In his examination-in-chief, he has stated
that Rajesh Bahardar @ Bokai had come to his village to visit the
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fair and had stayed in the night. PW-4 has stated that he had got
him boarded in a Tempo at Palasi Chowk at about 5-6 PM. He has
confirmed in his deposition that tempo was of Shahnawaz and he
had paid the tempo fare for Jokihat. This witness has stated that in
the tempo other passengers were also sitting. He has stated that
ladies were also sitting. This witness has also been declared hostile
by the prosecution. The prosecution cross-examined him and drew
his attention towards his previous statement made before police in
which he had stated that in the said tempo, on the middle seat, the
victim lady was sitting and his attention was further drawn towards
his previous statement made before police that Rajesh Bahardar @
Bokai was a person of immoral character. Though PW-4 denied to
have made such statements before the I.O. but as discussed above,
the I.O. has contradicted PW-4 by proving his statements recorded
in paragraph '39' of the case diary.
28. Ekhlaque Ahmed (PW-5) is one of the seizure list
witnesses. He has proved his signature on the seizure list which
has been marked Exhibit '1' but has stated that police had not
seized any mobile in his presence. In course of his cross-
examination, he has stated that police had obtained his signature
on blank paper by threatening him and he had not put his signature
on his own will and volition. In his cross-examination, he has
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stated that he had not made any complaint in this regard to the S.P.
because he was not aware that for what purpose Daroga had
obtained his signature.
29. Md. Mukhtar (PW-6) is a very important witness.
He is the last tempo driver with whom the deceased and the
appellant both were travelling in his tempo bearing Number
BR11M8616 from Jokihat to Araria. In his examination-in-chief,
PW-6 has stated that at about 7:00 PM, he was waiting for the
passengers for his tempo at 'Bhebhra' Chowk for going to Araria.
According to him, first of all, one lady came and sat in the tempo
for Araria. PW-6 started the tempo, in the meantime, one person
came and sat for going to Belwa. At Bairgachhi Chowk, the tempo
stopped expecting some more passengers. PW-10 has stated that he
went to take 'paan' where the person who was sitting in the tempo
came to him and said that the lady who was sitting in the tempo is
his wife and she had become angry with him so she is not willing
to go with him. The said person disclosed to PW-6 that he is a
resident of Belwa so PW-6 should stop the tempo near the Panar
Pul. He paid the tempo fare for himself and the said lady.
According to PW-6, he stopped the vehicle near Panar Pul. The
lady was sitting at the left side of the vehicle and the said person
was sitting at the right side. First of all, the lady got down and
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thereafter the said person came down from the vehicle. Both
alighted from the vehicle from the left side whereafter that person
told PW-6 to move ahead with the vehicle. On this, PW-6
proceeded and reached Zero Mile, Araria.
30. PW-6 has stated that after two days, the tempo
driver Shahnawaz (PW-8) told him that the lady who was sitting in
his tempo has been murdered. At that time, he was at 'Bhebhra'
Chowk. On the same day, at 2:00 PM, the Bara Babu of the police
station came to him and inquired from him on which he told him
that one lady and one male had travelled in his tempo and both had
alighted from the tempo near Panar Bridge. After five days, Bara
Babu had called him at Araria Police Station, inquired from him,
took his statement and then produced him for his statement before
a Magistrate. PW-6 identified the person who was sitting in his
tempo, was present in court. In course of trial, in dock two persons
were standing out of whom, the appellant was identified by PW-6.
In course of his cross-examination, this witness has stated that the
lady who sat in his tempo had alighted from another tempo and as
soon as he started the vehicle, the said person who sat in his
vehicle came but he cannot say that from where he arrived. In
paragraph '11', this witness has stated that near Panar Pul, both the
person and the lady came down and proceeded willfully as wife
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and husband. In paragraph '12' of his deposition, PW-6 has stated
that the place where he had stopped the tempo was a lonely place.
He had got recorded his statement before the Magistrate after five
days and had made the same statement which he had made before
police. He has stated in paragraph '18' of his cross-examination
that he was not shown the photograph of the dead body of the
victim and police had shown him the accused who has been
identified by him in court, in the police station. In the police
station also he had identified the appellant and had stated that he
had been sitting in his vehicle. This witness was suggested by the
defence that he had become witness under pressure of the local
police and the person who has been identified by him was not
sitting in his tempo and at the instance of police, he had identified
the appellant. The suggestion was denied by the witness.
31. On appreciation of the evidence of PW-4, who is the
brother-in-law of the appellant and has been declared hostile, there
would be no difficulty in recording an opinion that the appellant
had gone to the house of his brother-in-law (PW-4) to visit the
local mela and on 08.09.2014 at about 6:00 PM, he had boarded
the tempo of Shahnawaz (PW-8) for Jokihat. Though PW-4 has
stated that ladies were sitting in the tempo but he deviated from his
earlier statement made before police that the victim lady was
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sitting in the said tempo on the middle seat. The evidence of I.O.
(PW-10) proves that PW-4 had made a statement before police that
he had seen the victim sitting in the tempo of Shahnawaz on the
middle seat. It is evident from the evidence of Md. Sadik (PW-3)
that he had seen the victim lady in the tempo of Shahnawaz.
Though Md. Sadik (PW-3) did not confirm presence of the
appellant in the said tempo but his statement has been proved by
the I.O. (PW-10) that he had stated before the I.O. in course of
investigation that Bhedi Lal Chaudhary (PW-4) had got boarded
his relative in the tempo of Shahnawaz. Thus, there is no iota of
doubt that the victim lady as well as the appellant both were
travelling at first instance in the tempo of Shahnawaz (PW-8) and
after leaving the said tempo at Jokihat, both of them had again
boarded the tempo of Md. Mukhtar (PW-6). While the victim lady
had sat in the tempo for going to Araria, the appellant told PW-6
that he is resident of Belwa and sat in the tempo. On perusal of the
evidence of PW-6 it appears that he had either gone in collusion
with the appellant or had not exercised due diligence and care
while carrying the passenger and he accepted the tempo fare of the
lady from the appellant and allowed the appellant to get down at
Panar Bridge from the left side of the tempo after the lady seems to
have got down from the tempo to give way to the appellant who
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was sitting to her right side and wanted to get down from the left
side of the vehicle. PW-6 seems to be saving himself when he says
in course of his cross-examination that the lady had got down from
the vehicle on her own and both of them had moved ahead as
husband and wife. So far as this part of his deposition is
concerned, the same is not believable. It is evident that only two
passengers were sitting in the vehicle lastly. The lady was sitting in
the left side and this appellant was sitting right to her. He had
already given a wrong picture to the tempo driver (PW-6) at Bair
Gachhi Chowk at the paan shop that the lady is his wife and he
had persuaded PW-6 to stop the vehicle at Panar Bridge. The
manner in which PW-6 agreed with the request of the appellant
gives rise to a suspicion as to the conduct of PW-6 but there is no
iota of doubt that it was this appellant who had made the victim
lady to get down from the vehicle at Panar Bridge from left side to
facilitate him in getting down from the vehicle but once he got
down and before the victim lady would have boarded the tempo
again, the appellant asked the tempo driver (PW-6) to leave the
place and proceed ahead with his tempo. PW-6 left the victim lady
and proceeded with his tempo. It was a lonely place.
32. Dr. Ali Hassan (PW-7) is the Doctor who was posted
as Medical Officer in Araria Sadar Hospital. After recovery of the
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dead body, he had conducted the autopsy on the same and had
found the following injuries.
"Underneath ligature mark hyoid bone fracture
cervical vertebra dislocated and blood and blood clot
found and opening the cranial cavity, thoracic cavity,
abdominal cavity the corresponding viscerases were
intact and in Situ. Swabs taken from vagina for
presence of spermatozoa, swab handed over to the
police for needful at same time S.H.O. Palasi
Dhananjay Kumar. Time elapsed since death within 7
days. Death in our opinion due to asphyxia a result of
above mentioned injuries caused by strangulation."
From the kind of injuries noticed by the Doctor (PW-7) it is
evident that the victim had been subjected to sexual assault and
then she was killed.
33. Md. Shahnawaz (PW-8) is the tempo driver who
was present at Palasi Chowk on 08.09.2014 at about 6:00 PM with
his Tempo Number BR11M8931. In his examination-in-chief, he
has stated that 5-7 passengers were sitting in his tempo and among
them one teacher of Kasturba Vidyalaya, Palasi was also sitting.
PW-8 has further stated that one person came with another person
and he identified the person who had come with another person as
a fishmonger but did not know his name. PW-8 did not know the
another person who identified him in the court. The said identified
person is the appellant. PW-8 has stated that he had proceeded
from Palasi to 'Bhebhra' Chowk. At 'Bhebhra' Chowk, two
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passengers who had been going to Araria went to the tempo of
Mukhtar (PW-6). He has stated that in his tempo, one passenger
who had been going to Araria was the teacher of the Kasturba
School, Palasi and the another person was the appellant who was
present in dock. On the next day this witness came to know at
tempo stand that the said teacher had been murdered. His
statement was recorded by Palasi Police after a week, one day
thereafter his statement was taken in Araria Police Station and then
his statement was recorded before the Magistrate. The defence
cross-examined this witness. In his cross-examination, PW-6 has
stated that he had identified the appellant in the police station but
he had not seen police causing any assault or beating upon the
accused. He reiterated his statements made before the learned
Magistrate and before the police. This witness denied the
suggestion of the defence that he had not made any statement
before police that one person had come with another person to
leave him in the tempo and that the person who had come to see
off the another person is a fishmonger. He denied the suggestion
that he was making statement under police pressure and had
identified the appellant at the instance of police.
34. Fanindra Ranjan Kumar (PW-9) is the husband of
the deceased who has stated that on 08.09.2014 at 8:30 PM he
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received a call on his mobile from the school Administrator Kasim
Hussain who requested him to connect him with the
deceased/victim as he wanted to inquire from her about the keys of
the school. This witness told him that the victim had not reached
her house whereafter he started making call on the mobile phone
of the victim from his mobile number 9955938337 to the mobile
number of the victim 7764967103 but phone was coming switched
off. On the next day he went to Palasi in search of the victim then
he came to know that the victim had left her house by tempo of
Shahnawaz. On 09.09.2014, he got entered a Sanha in Palasi
Police Station. On 13.09.2014, he got a phone on his mobile from
Palasi Police that a dead body of a lady has been found at Jataghat
so he should come for identification. Jataghat is the place at the
bank of Panar river. After receiving information from police PW-9
had gone to Jataghat and had seen the dead body.
35. PW-9 has stated that his statement was recorded by
police at his residence on 12.09.2014 at 8:30 PM. He identified his
signature thereon and also the signature of his cousin father-in-law
namely Visheshwar Prasad Shrivastava. Both the signatures were
marked Exhibit '3' and '3/1' respectively. On 13.09.2014 his
restatement was recorded by police but till that time there was no
information available with regard to his wife. PW-9 identified the
accused-appellant in the dock. In his cross-examination, this witness
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has stated that Jataghat is at a distance of 15-20 kilometer from Panar
Bridge and there are several routes from Araria to Jataghat. He had
gone to Jataghat with his younger Mukund Madhav and some people
of Mohalla and they reached there by evening. He had seen this
appellant at Jataghat in police custody. He had seen the appellant for
the first time there. In his cross-examination, PW-9 has stated that he
cannot produce any paper of the mobile of his wife and he cannot say
that in whose name the SIM was obtained. He, however, disclosed
that the SIM was of Airtel and he had purchased the mobile phone
from Purnia but cannot say the name of the shop from where he
purchased the mobile phone.
36. Shiv Nandan Prasad (PW-10) is the Sub-Inspector of
Police who was posted in Palasi Police Station in September 2014.
He has proved the fardbeyan of Fanindra Ranjan Kumar which was
recorded by the then Officer-in-Charge Dhananjaya Kumar. The
fardbeyan has been marked Exhibit '3/2'. On the basis of the said
fardbeyan, Palasi P.S. Case No. 207 of 2014 was registered and he
had started investigation on 12.09.2014 whereafter he had visited the
first place of occurrence which is the Kasturba Gandhi Balika
Residential School, Palasi. PW-10 has proved the Sanha No. 180 of
2014 dated 09.09.2014 given by Fanindra Ranjan Kumar (PW-9) in
his handwriting and under his signature. It has been marked Exhibit
'4' and the same has been mentioned in paragraph '12'. PW-10 has
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recorded the tower location of mobile number 7250535937 as on
10.09.2014
in paragraph ’13’ of the case diary. PW-10 has stated in
his deposition that in paragraph ’14’ of the case diary he has recorded
that on 11.09.2014 the mobile phone of victim was being used with
SIM number 7250535937. He had obtained the CDR and subscriber
details as also tower location for which he had submitted the
prescribed proforma vide Memo No. 861/14 dated 11.09.2014 to the
Confidential Section of Araria Superintendent of Police Office. PW-
10 had obtained the CDR and subscriber details of mobile number
7250535937 from which came to know that the said SIM is in the
name of Parmanand Bahardar, son of Dholahi Bahardar, Resident of
Village-Majgaon, Harijan Tola PS and District Araria, House No.
1112 and he is the brother of the accused. PW-10 seized two mobiles
one of which is of Nokia black color with IMEI number
351948/05/556302/2, Model 1200, Type RM647 Material Object-1
(MO-1) the another mobile was Karbon mobile of black color which
has been marked Material Object-2 (MO-2). It is this Nokia mobile
about whom it is stated by PW-10 that the same belonged to the
victim. PW-10 has proved the seizure list of the mobile which has
been marked as Exhibit ‘1/A’.
37. PW-10 has stated that he had taken Rajesh Bahardar
(the appellant) into custody and interrogated him who made the
confessional statement in which he stated about the manner in which
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the crime was committed. I find that the learned trial court has
marked the whole confessional statement as Exhibit ‘5’ but I have no
iota of doubt that the whole confessional statement would not be
admissible in evidence and it would only be that part of the statement
which led to discovery of the dead body would be admissible under
Section 27 of the Indian Evidence Act. PW-10 has stated that on the
basis of the disclosure made by the accused-appellant, the police
team along with appellant had gone in search of the dead body and
found the same at Khataghat lying in a bush. This appellant is said to
have identified the dead body. Mahalgaon Police had done the
formalities with respect to the recovered dead body and after arrival
of Mahalgaon Police at the bank of the river, inquest report was
prepared by ASI Hira Prasad Singh. PW-10 has proved the inquest
report which he claimed to have been prepared in his presence. The
same has been marked Exhibit ‘6’. The I.O. has been cross-examined
by the defence and I find that the defence has mainly cross-examined
the I.O. on the point of ownership of the mobile. The I.O. has stated
in paragraph ’14’ of his deposition that he cannot say that the mobile
with the said IMEI was sold to whom as he had not found about this.
PW-10 was also cross-examined on the point that he had not recorded
in the case diary the time when the appellant was arrested on
13.09.2014 and the seizure list of the mobile did not mention the
name of the accused.
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38. When I scrutinise the entire materials on the record
particularly the evidence of PW-8, PW-9 and PW-10, it is found that
all these witnesses are consistent to the fact that this appellant was
travelling with the deceased throughout from Palasi to ‘Bhebhra’ and
again from ‘Bhebhra’ to Araria and it was this appellant who had
persuaded PW-6 to stop the tempo at Panar Bridge. The arrest of the
appellant by PW-10 on 13.09.2014 and then recovery of the dead
body has been duly proved by the prosecution.
39. In the case of Sharad Birdhichand Sarda (supra) the
Hon’ble Supreme Court has observed as under:-
“152. Before discussing the cases relied upon by the
High Court we would like to cite a few decisions on the
nature, character and essential proof required in a
criminal case which rests on circumstantial evidence
alone. The most fundamental and basic decision of this
Court is Hanumant v. State of Madhya Pradesh 1. This
case has been uniformly followed and applied by this
Court in a large number of later decisions up-to-date, for
instance, the cases of Tufail (Alias) Simmi v. State of
Uttar Pradesh17 and Ramgopal v. State of Maharashtra18.
It may be useful to extract what Mahajan, J. has laid
down in Hanumant case1 :
“It is well to remember that in cases where the evidence
is of a circumstantial nature, the circumstances from
which the conclusion of guilt is to be drawn should in
the first instance be fully established, and all the facts
so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far
complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused
and it must be such as to show that within all human
probability the act must have been done by the
accused.”
1. 1952 SCR 1091 : AIR 1952 SC 343 : 1953 Cri LJ 129
17. (1969) 3 SCC 198 : 1970 SCC (Cri) 55
18. AIR 1972 SC 656 : (1972) 4 SCC 625
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40. In the light of the aforementioned discussions when
I examine the judgment of the learned trial court, it is found that
the learned trial court has duly appreciated the evidences available
on the record and no fault may be found with the same. I would,
thus, dismiss the appeal.
41. Let the trial court’s records be sent to the learned
court below.
(Rajeev Ranjan Prasad, J)
I agree
Jitendra Kumar, J:-
(Jitendra Kumar, J)
SUSHMA2/Rishi-
AFR/NAFR CAV DATE 14.11.2024 Uploading Date 24.01.2025 Transmission Date 24.01.2025
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