Jharkhand High Court
Ashim Kumar Biswas vs The State Of Jharkhand on 23 January, 2025
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.688 of 2002
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(Arising out of judgment of conviction dated 16.09.2002 and
order of sentence dated 18.09.2002 passed by Learned
Additional District & Sessions Judge, Fast Track Court No.5,
Dhanbad, in Sessions Trial No.630 of 1993)
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Ashim Kumar Biswas, son of Tripurari Biswas, resident of Village
Bansipur, Post Office Puipal, Police Station Simlapur, District
Bakura. ... ... ... Appellant
Versus
The State of Jharkhand. ... ... ... Respondent
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PRESENT : SRI ANANDA SEN, J.
: SRI GAUTAM KUMAR CHOUDHARY, J.
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For the Appellant : Mr. B.M. Tripathi, Sr. Advocate, with
Mr. Navin Kr. Jaiswal, Advocate.
For the State : Mr. Sanjay Kr. Srivastava, A.P.P.
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JUDGMENT
CAV on: 25.11.2024 Pronounced on : 23/01/2025
Per Ananda Sen, J.:
This Criminal Appeal is preferred on behalf of the
appellant being aggrieved by the judgment of conviction dated
16.09.2002 and order of sentence dated 18.09.2002 passed by
Learned Additional District & Sessions Judge, Fast Track Court
No.5, Dhanbad, in Sessions Trial No.630 of 1993, whereby and
where under the appellant has been convicted for offences under
Sections 302 and 201 IPC. He was sentenced to undergo
imprisonment for life with fine of Rs.5,000/- under Section 302
IPC and further to undergo rigorous imprisonment for 07 years
with fine of Rs.2,000/- for offence under Section 201 IPC. Both
sentences were ordered to run concurrently.
2. Heard learned counsel for the appellant and learned
A.P.P. for the State and perused the material available on record.
3. Learned senior counsel representing the appellant
prays for acquittal of the appellant on the ground that evidences
of most of the prosecution witnesses are contradictory to each
other and the prosecution case is based on false and concocted
fact. There is an inordinate delay in lodging the F.I.R. and no
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plausible explanation has been offered for the said delay. It is
further argued that the prosecution has failed to prove the
business relationship between the deceased and the appellant as
has been indicated in the F.I.R. In view of these contradictions, it
is urged that prosecution has failed to prove the charge against
the accused.
4. Learned A.P.P. representing the State vehemently
opposed the Criminal Appeal and submits that the appellant has
been rightly convicted in this case. Informant in the written
report clearly alleged that the appellant took his brother –
Dashrath Singh on his scooter on the pretext of giving him
money in part. Informant started intensive search for his brother
after he came to know that Ashim went out from the house by
saying that he is going to Bankura and one skinny boy was also
going along with him as a pillion rider. Several incriminating
materials were found and exhibited from the place of occurrence
which are sufficient to establish the guilt of this appellant.
5. The crux of the case is that a written report was filed
by the informant – Rameshwar Singh, stating therein that on
13.02.1993 at about 09:30 A.M., Ashim Kumar Biswas
(Appellant), who was working in Civil Engineering Department,
Koylanagar, Amiya Kumar Biswas and A.K. Biswas, Personal
Manager at South Tisra Colliery took his younger brother –
Dashrath Singh, on his Scooter bearing No.BR-17-A-1258 on the
words that he will give him money in Bhaga. His brother had
given Rs.48,000/- to Ashim for contract. On earlier occasion, five
months ago, his brother had given Rs.5,000/- and the informant
himself was the witness. The settlement with Ashim Kumar
Biswas was done in front of his younger brother – Nandji Singh,
which came to Rs.48,000/-. From that day till filing of the written
report, nothing was known about his brother. On 15.02.1993,
when his brother did not return home he went in search of his
brother along with Amiya Kumar Biswas to his brother who was
working in Civil Engineering department, who told him that
Ashim went out from the house by saying that he is going to
Bankura and one skinny boy was also sitting behind the seat of
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his scooter and he don’t know that boy. The informant suspected
that something was wrong and did not let go the brother of
Amiya and on 17.02.1993 he went to Bankura with his friend’s
brother where he came to know that Ashim had gone to
Dhanbad with his elder brother Amiya and on 18.02.1993, when
the informant went to Dhanbad, he found that Ashim was there
and was telling that on 12.02.1993, he had given ornaments
worth Rs.35,000/- to Dashrath and Rs.10,000/- cash but
according to the informant, neither there were ornaments nor
cash in his house. He stated that on 12.02.1993, his brother was
in his house and he told his younger brother that on 13.03.1993
he was told to make him payment next day and if he failed to do
so, he will come with his Scooter. On 13.03.1993, Ashim came to
a betel shop near his house and beckoned his brother – Dashrath
Singh. He told his brother that he will come with money within 2
– 3 hours. When they are going on Scooter, one contractor
namely Aanandi was also there, to whom he said that they are
coming and one Devki Nandan Sahni was also present there.
When Ashim was going with his brother, one Jaikaran Singh
identified his brother and tried to stop him but Ashim had
accelerated his Scooter. He stated that why Ashim had took his
brother when he paid the amount. He had apprehension that his
brother had been killed.
6. On the basis of aforesaid written report, F.I.R. was
registered being Dhanbad P.S. Case No.112/1993 under Section
364 IPC and finally charge-sheet was submitted against the
appellant under Sections 364/ 302/ 201/34/ 120 IPC. Thereafter,
the case was committed to the Court of Sessions where charge
was framed under Sections 364, 302, 201, 34 and 120 B IPC
against the appellant and others.
7. To prove the prosecution case, the prosecution has
examined altogether 16 witnesses:-
P.W.-1 namely Jitan Modi, is the owner of Tea stall. He is a
hearsay witness. He had also not supported the prosecution
story and turned hostile.
P.W.-2 namely Anandi Singh is the contractor and was
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partner of the deceased. He got Rs.60,000/- and thereafter went
back to his work site on his scooter. He stated that he knew
Rameshwar Singh (informant), who was the employee of BCCL
and the earning of the said business of the contract was
deposited in the joint account of the deceased and in his
account.
P.W.-3 namely Ram Shanker Modi, is a tendered witness.
P.W.-4 namely Devki Nandan Sahani, stated that when he
was drinking tea at the tea stall, Ashim came and called the
deceased and thereafter they were having talk. After sometime
Anandi also came and had given Cheque and thereafter the
deceased went with Ashim to Bhaga.
P.W.-5 namely Vijay Kumar Srivastava, is an employee of
BCCL. He stated that after the arrest of the appellant and
brothers, in his presence the tangi and the bed sheet were
recovered by the police. In his cross-examination, he stated that
he was called at the time of confession of the appellant. It was
admitted by this witness that his statement was not recorded by
the Investigating Officer in the case diary. He stated that he was
examined for the first time before the Trial Court.
P.W.-6 namely Dukhan Roy, stated that he knew Dashrath
Singh and the informant-Rameshwar Singh. He stated that a
bed-sheet was seized from the house / Bhaga but the said bed
sheet was not produced before the Trial Court. He stated that the
police had not recorded his statement in the case diary and he
deposed for the first time before the Trial Court. He denied that
he had ever went to the police station on the question of any
person being arrested. He kept mum on the point of putting
signature in the seizure list.
P.W.-7 namely Nandji Singh is the younger brother of the
deceased. He only had seen Ashim taking his brother in a
scooter.
P.W.-8 namely Rameshwar Singh (informant) stated that
when he was talking with the deceased in the house, Ashim
came and invited the deceased to come to the tea shop where
he was present, then the deceased told him that he was going4
with Ashim Kumar Biswas for taking money. He also told him
that if Ashim will not give him money, he will come back taking
his scooter. When Ashim and the deceased were talking, Anandi
came there and gave a Cheque. He stated that P.W.-2 and P.W.-4
have met with the deceased brother. Thereafter, he came with
Ashim on his scooter.
P.W.-9 namely Dr. S. Yadav is a Legal Practitioner. He stated
that he is tenant in the servant room of one of the BCCL’s
quarter which is situated at the back side of the house. He only
stated that he saw Ashim coming on that day.
P.W.-10 namely Dr. Radhika Kumari Sinha is the Doctor who
conducted the post-mortem on the body of the deceased. She
found following injuries:-
1. Incised wound 4″ x ½” x 3″ over right side of neck.
2. Incised wound 3″ x 1/3″ x 2 ½” over right side of neck.
3. Incised wound 2″ x ½” x 3″ over right side of neck
4. Incised wound 4″ x 2″ x 3″ over occipital region of scalp.
5. Incised wound 6″ x 3″ x 4″ over occipital region of scalp.
6. Incised wound 3″ x 2″ x 4″ over left side of neck.
All injuries were ante-mortem in nature. Cause of death is
shock and haemorrhage.
On dissection, following were found:
Lungs both side were congested. Heart was congested. Liver
and spleen and both side of kidney were congested. Stomach
contains 300 CC digested food materials. Small and large
intestine disfunctioned.
The Doctor observed that all the aforesaid injuries
were vital in nature and were sufficient to cause death of the
patient. The injuries were caused by sharp cutting weapon such
as tangi.
P.W.-11 namely Nand Keshwar Pandey, has only stated
about the recovery of an unknown dead body near the railway
track of Station in a gunny bag. He exhibited the inquest report
and memo for sending the dead body to post-mortem.
P.W.-12 namely Rajiv Beldar, has also stated about the
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recovery of unknown dead body from Railway Station. He
prepared the inquest report of the dead body in presence of two
witnesses namely Sanjay Kumar Singh and Dilip Pal, but those
two witnesses have not been examined.
P.W.-13 namely Janardan Prasad Jha, is the Investigating
Officer of this case. He stated that he recorded the confessional
statement of the appellant. He stated that when the appellant
was arrested, he searched his person and found nothing. He kept
mum on the question of keys of the said house, from where it
has been alleged that recovery of the tangi was made. He has
admitted that no recovery of shirt had been made from the said
house. He stated that the appellant had made contradictory
statement before him.
P.W.-14 namely Birendra Kumar Shukla, has just stated
about the recovery of an unknown dead body in the Railway
Station.
P.W.-15 namely Binod Prasad, has just stated about the
recovery of an unknown dead body in the Railway Station.
P.W.-16 namely Rajendra Ram, has just stated about the
recovery of an unknown dead body in the Railway Station.
8. Several documents have also been exhibited. Those
are :-
i. Ext.1 :- Signature of Bijoy Kr. Srivastava
on the seizure list.
ii. Ext.1/1 :- Signature of Bijoy Kr. Srivastava
on the another seizure list.
iii. Ext.1/2 :- Signature of Dukhan Roy on the
seizure list
iv. Ext.1/3 :- Signature of Asim Kr. Biswas on
the seizure list
v. Ext.2 :- Signature of Janardan Pd. Jha on
the seizure list
vi. Ext.2/1 :- Signature of Janardan Pd. Jha on
the another seizure list
vii. Ext.2/2 :- Signature of Dukhan Roy on the
seizure list
viii. Ext.3 :- Seizure list
ix. Ext.3/1 :- Seizure list.
x. Ext.4 :- Written report
xi. Ext.5 :- Production list
xii. Ext.6 :- Post-mortem report
xiii. Ext.7 :- Inquest report
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xiv. Ext.8 :- Challan
xv. Ext.9 :- Written report of GM GRPS
xvi. Ext.10 :- Pagination, Sinni Police Station
xvii. Ext.11 :- Pagination Saraikela Police Station
xviii. Ext.12 :- Signature on F.I.R.
xix. Ext.13 :- Blood report
xx. Ext.14 :- Signature of Ashim Kr. Biswas on
confessional statement
xxi. Ext.15 :- F.I.R. of Saraikela P.S.
xxii. Ext.16 :- FSL Report
xxiii. Mat. Ext.I :- Kulhari
xxiv. Mat. Ext.II :- Bed sheet (Chadar)
xxv. Mark of identification:- photo of deceased
xxvi. Mark of identification :- -do-
xxvii. Mat. Ext.III :- One Full Pant
xxviii. Mat. Ext.IV :- Two shock
xxix. Mat. Ext.V :- One bed sheet
9. Indisputably there is no direct eye witness to the
incidence and the case rests on circumstantial evidence. The
occurrence can be divided in three parts:- (1) taking of the
deceased with Ashim (appellant) to Bhaga; (2) recovery of the
dead body at Sinni Railway Station in the District of Singhbhum;
and (3) commission of murder at Bhaga.
10. So far as the deceased accompanying this appellant
to Bhaga is concerned, P.W.-4 has stated that the appellant came
and called the deceased and the deceased and the appellant
went to Bhaga. P.W.-8 is the informant who has deposed that
this appellant came then the deceased told him that he was
going with Ashim for taking money. Thus, from the statement of
this witness, it is clear that the deceased was with this appellant
and the deceased stated that he was going with the appellant.
11. The dead body of the deceased was found in Sinni
Railway Station within the District of Singhbhum. The
prosecution tried to rely upon the disclosure statement of this
appellant, on the basis of which the weapon said to be used in
the offence was recovered from the quarter of Ashim Kumar
Biswas at Bhaga. If the crime was at all committed at Bhaga
quarter, there is no legal evidence on record to suggest as to
how the dead body had come from Bhaga to Sinni. As per the
confessional statement, the body was wrapped in a bed sheet7
and was transported in a tempo to Railway Station and from
there by a train, the same was taken to Sinni and was dropped
there. There is no legal evidence in support of all these
statements. The tempo driver was not examined nor the dead
body was recovered on the alleged confessional statement of this
appellant. It is an admitted case of the prosecution that an
unknown dead body was recovered at the railway track near
Sinni, which was later on identified to be that of the deceased.
Thus, the prosecution has failed to prove the chain of
circumstances as to how the body had been transported to Sinni
and was found there.
12. So far as the place of murder is concerned, the
prosecution has set up case that the offence was committed in
the quarter of this appellant at Bhaga, as a blood stained axe
and a bed sheet was recovered by the police in the quarter at
Bhaga. Admittedly, the said bed sheet was not produced before
the Trial Court. Those materials were kept concealed behind the
Almirah. The Investigating Officer (P.W.-13) had stated that there
was no recovery of shirt etc., from the said house. On the
question as to how the door of the said house was opened and
where was the key, he kept mum. This also creates a doubt in
the mind of this Court as to how the police came to know that
the axe which was recovered is the murder weapon or the said
house was the place where the murder had taken place. Be it
noted that there is no legal evidence to suggest that in the said
house, the murder had taken place.
13. P.W.-11, P.W.-12, P.W.-14, P.W.-15 and P.W.-16
deposed only on the point of recovery of the dead body at Sinni
Railway Station. They absolutely stated nothing about the fact of
murder and how the dead body had reached that place.
14. P.W.-5 and P.W.-6 are the two witnesses who only
stated about seizure of the axe and the bed sheets but
surprisingly they had stated in Court that their statement was
not recorded under Section 161 Cr.P.C., rather, they are giving
their statement for the first time in Court. In backdrop of this
statement, their evidence cannot be considered.
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15. Thus, from the evidence of the prosecution, the only
material which has been proved by the prosecution is that the
deceased was last seen with this appellant. Solely on the basis of
last seen theory, the appellant cannot be convicted without there
being any other corroborating evidence. The chain of
circumstances i.e. where the deceased was murdered, how the
body had travelled such a long distance has neither been
established nor proved by the prosecution. The evidence is very
weak in this case to implicate this appellant. Thus, I find merit in
this Appeal. The appellant is acquitted.
16. Accordingly, this Criminal Appeal stands allowed. The
impugned judgment of conviction dated 16.09.2002 and order of
sentence dated 18.09.2002 passed by Learned Additional District
& Sessions Judge, Fast Track Court No.5, Dhanbad, in Sessions
Trial No.630 of 1993, are hereby set aside. As the appellant is on
bail, he is discharged from the liability of bail bonds, so are the
bailers.
17. Pending interlocutory application, if any, stands
disposed of.
18. Trial Court Record be transmitted back to the Court
concerned.
(ANANDA SEN, J.)
Per Gautam Kumar Choudhary, J. – I agree
(GAUTAM KUMAR CHOUDHARY, J.)
HIGH COURT OF JHARKHAND, RANCHI
Dated:- 23/01/2025
NAFR / Prashant
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