Criminal Appeal (DB) No. 319 of 1999 (P) [Against the judgment and order of conviction and sentence dated 27.02.1999 (sentence passed on 06.03.1999) passed by Sri R.P. Verma, learned Sessions Judge, Godda in S.T. No. 88 of 1997] --------- Bijoy Rikhiyasan, S/o Late Bhuneshwar Rikhiyasan, R/o Village Pipra, P.O. Kasba, P.S. Meherma, District- Godda …. …. Appellant Versus The State of Bihar (now Jharkhand) …. …. Respondent --------- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE ARUN KUMAR RAI --------- For the Appellant : Ms. Ayushi , Amicus Curiae For the State : Mr. Pankaj Kumar Mishra, A.P.P. --------- C.A.V. on 02/01/2025 Pronounced on 14/01/2025 Per Rongon Mukhopadhyay, J. Heard Ms. Ayushi , learned Amicus Curiae for the appellant and Mr. Pankaj Kumar Mishra, learned A.P.P. for the State. 2. This appeal is directed against the judgment and order of conviction and sentence dated 27.02.1999 (sentence passed on 06.03.1999) passed by Sri R.P. Verma, learned Sessions Judge, Godda in S.T. No. 88 of 1997, whereby and whereunder, the appellant has been convicted for the offences punishable u/s 302/34 and 201 of the IPC and has been sentenced to R.I. for life for the offence u/s 302/34 of the IPC. No separate sentence has been passed for the offence u/s 201 of the IPC. 3. The prosecution case arises out of the fardbeyan of Sukar Paswan recorded on 24.02.1997, in which, it has been stated that at 11:00 A.M. the Sarpanch of Pipra, Ram Sharan Kujur had come to his house and informed him that Bijoy Rikhiyasan and the wife of Jalim Rikhiyasan have committed the murder of Jalim Rikhiyasan and had thrown the dead body at Kowa river and both the assailants have been caught by the villagers. At this information, the informant went to the place of -2- occurrence and saw the dead body of Jalim Rikhiyasan with injuries on his person and informed the matter to the Police Station. The apprehended accused Bijoy Rikhiyasan and Leela Devi had confessed before the villagers of committing the murder. The villagers were discussing that due to a long standing love affair between Bijoy Rikhiyasan and Leela Devi the murder had been committed. Based on the aforesaid allegations Meharma P.S. Case No. 20 of 1997 was instituted u/s 302/201/34 of the IPC. On completion of investigation charge sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 88 of 1997. Charge was framed against the accused u/s 302/34 of the IPC and 201 of the IPC which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. The accused Leela Devi after recording of her statement u/s 313 Cr.P.C did not appear and was declared an absconder and the case of the present accused was separated. 4. The prosecution has examined as many as thirteen witnesses in support of its case. 5. P.W.1 (Sukar Paswan) is the informant who has stated that the Sarpanch had informed him that one person has been murdered and two persons have been apprehended by the villagers. He thereafter informed the Police Station and after the Police came they went and saw the dead body in the river. His fardbeyan was recorded by the Police. The inquest report was prepared and the dead body was sent for post-mortem examination. In cross-examination, he has deposed that after he had received the information from the Sarpanch he had straightway gone to the Police Station and from there he came to Pipra village. He does not have any personal knowledge about the incident. -3- 6. P.W.2 (Ramnath Toppo) has stated that on 23.02.1997 Jalim Rikhiyasan, Leela Devi and Bijoy Rkihiyasan were going from the village at 8:00 A.M. towards the northern side and on 24.02.1997 an alarm was raised that Jalim Rikhiyasan has been murdered and Bijoy and Leela Devi are fleeing away. The villagers had apprehended them who confessed about committing the murder. Bijoy had an affair with Leela for which Leela was reprimanded and sometimes assaulted by Jalim Rikhiyasan. In cross-examination, he has deposed that on hearing the commotion he had gone and seen the dead body. He had heard that there was an illicit relationship between Bijoy and Leela Devi. 7. P.W.3 (Ram Sharan Kujur) is the Sarpanch of Mangarh Panchayat. He has stated that he had gone to Kowa River on coming to know that Jalim has been murdered. The villagers had caught hold of Bijoy Rikhiyasan and Leela Devi who confessed about committing the murder. In cross-examination, he has deposed that when he had reached the shore of the River several villagers had already assembled by then. After informing the Chowkidar he had left for his house. 8. P.W.4 (Bandhu Oraon) has stated that it was a Sunday and at 8:00 A.M. Leela Devi, Bijoy Rikhiyasan and Jalim Rikhiyasan were going from Pipra village to the northern side and he had seen them going. On Monday, he heard that a dead body is lying in Kowa River and when he went he found the dead body to be that of Jalim Rikhiyasan. Leela and Bijoy had confessed before him, Ramnath Toppo, Ram Sharan Kujur, Deonarayan Sao, Baldeo Rikhiyasan, Lukhiya Devi, Meena Devi and others that they had made Jalim Rikhiyasan intoxicated and after taking him near Kowa River had committed his murder. The reason for the occurrence is that Bijoy Rikhiyasan and Leela Devi were having an illicit affair. -4- When the Police came both had confessed about committing the murder. In cross-examination, he has deposed that on hearing about the murder he had gone to Kowa River. Nobody had stated about the affair between the accused but they used to see both of them conversing and laughing. 9. P.W.5 (Puniya Devi) has stated that on Sunday she had seen Jalim, Bijoy and Leela going to Hatia and on Monday she came to know about a dead body at Kowa River. She went to the River and saw the dead body of Jalim and she thereafter came back home. Baldeo Rikhiyasan, Bandhu Oraon, Ramnath Toppo, Ram Sharan Kujur and Deonarayan Sah had caught hold of Bijoy and Leela and they had disclosed about committing the murder with a Chheni. The Sarpanch was informed who gave the information to the Chowkidar who in turn informed the Police Station. Bijoy and Leela had confessed before the Police of committing the murder. In cross-examination, she has deposed that she had seen all the three persons going. 10. P.W.6 (Meena Devi) has stated that on Sunday Jalim, Leela and Bijoy had gone to the Hatia. She does not know when they returned. On hearing the news that the dead body of Jalim is lying in Kowa River she went to the said place and thereafter returned back to Pipra. There was an injury on the left hand of Leela and blood was also on her saree and when she was asked about the same she had disclosed that she is having a love affair with Bijoy and this resulted in committing the murder of Jalim. Both the accused had confessed before the Police about committing the murder. In cross-examination, she has deposed that there is an animosity between her family and the family of Bijoy. 11. P.W.7 (Luchiya Devi) has stated that she had seen Jalim, Leela and Bijoy going towards the Hatia and on the next day -5- the dead body of Jalim was found lying in Kowa River. Both the accused had confessed before the Police that after making Jalim consume liquor they had committed his murder. In cross-examination, she has deposed that the Police had interrogated Bijoy and Leela and had taken them away. She does not have any enmity with Bijoy. 12. P.W.8 (Dr. Ashok Kumar) was posted as a Civil Assistant Surgeon, Godda and on 25.02.1997 he had conducted autopsy on the dead body of Jalim Rikhiyasan and had found the following: (i) An incised wound on front of neck 2½ ” x 1” x 1½” with major vessels, muscles, tendons and skin cleanly cut. (ii) Incised wound on left cheek 1½” x ½” x ½”. (iii) Incised wound on left hand between the waves of thumb and index finger ¾” x 1/4” x 1/4”. (iv) Incised wound on right half of forehead almost horizontal size 1/2” x 1/4” x 1/4” above the eyebrow. (v) Incised wound on right cheek below the lower eye-lid ¾” x 1/5” x 1/5”. (vi) Incised wound vertical direction on outer aspect right upper arm size x 2”x1/3” x 1/3”. (vii) Incised wound on top of right shoulder 1”x1/3” x 1/3”. (viii) Abrasions on dorsal aspect of both knees semi- circular in size 2” x 1½”. The cause of death was opined to be due to shock and haemorrhage due to the above mentioned injuries. He has proved the post-mortem report which has been marked as Exhibit- 1. In cross-examination, he has deposed that he had not found any sort of intoxicated smell from the abdomen. Influence of alcohol passes off within twelve hours usually. 13. P.W.9 (Deonarayan Sao) has stated that about 6-7 months back on a Sunday he had seen Bijoy Rikhiyasan, Jalim Rikhiyasan and Leela Devi going to the market at 8:00 A.M. He -6- does not know as to when they had returned. In the morning of Monday some persons had discovered the body of Jalim Rikhiyasan. When Bijoy and Leela were confronted as to how Jalim died both made attempts to flee but they were apprehended by the villagers and they confessed about committing the murder. When the Police came both the accused had again confessed about their involvement in committing the murder of Jalim Rikhiyasan. He has proved his signature on the seizure list which has been marked as Exhibit-2 while his signature on the inquest report has been proved and marked as Exhibit-2/1. In cross-examination, he has deposed that his statement and the statement of the villagers were recorded by the Police. 14. P.W. 10 (Baldeo Rikhiyasan) has stated that Jalim, Bijoy and Leela Devi had gone to the market but he cannot say when they had returned. In the morning the dead body of Jalim was located with his throat slit. The villagers had caught Bijoy and Leela Devi as they were trying to flee away. The Police was informed who came and in their presence both the accused had confessed of committing the murder of Jalim Rikhiyasan. In cross-examination, he has deposed that on Sunday he had seen all the three persons going. 15. P.W.11 (Sambhu Nath Tiwari) was the in-charge of Mehrama P.S. and on 24.02.1997 a rumour was heard of a person having been murdered near Kowa River. After an entry was made in the diary he proceeded to verify the news along with other Police personnel. At 2:15 P.M. he reached Kowa River where several persons were found having assembled. A dead body with its throat silt was found in the River. He had recorded the fardbeyan of the village Chowkidar which has been proved and marked as Exhibit-3. He has proved the inquest report which has been marked as Exhibit-4. He had sent the body for post-mortem examination. The blood stained earth was seized and a seizure list was prepared -7- which has been proved and marked as Exhibit-5. He had inspected the place of occurrence which is at a distance of one and a half kilometres from village Pipra at Kowa River. The River was dry. There was a pool of blood at the place of occurrence. He thereafter went to village Pipra where the villagers had caught hold of Bijoy Rikhiyasan and Leela Devi and both of them separately confessed before the villagers of committing the murder. He had recorded the statement of the villagers, obtained the post-mortem report and thereafter submitted charge-sheet. In cross-examination, he has deposed that he had searched the house of the accused but nothing incriminating was recovered. No blood was detected on the wearing apparels of the accused. 16. P.W.12 (Dr. Vinay Kumar) was posted as a Medical Officer at P.H.C. Mehrama, Godda and on 25.02.1997 he had examined Leela Devi and had found the following: (i) Transversed wound over middle feelings of left little finger palmer aspect) 1 ½ centimetre x ½ centimetre into skin deep. (ii) Transversed wound over palmer side of left ring finger 2 centimetre x half centimetre x skin deep. (iii) Wound over root of the left thumb centimetre in size. The injuries were opined to be simple in nature caused by sharp cutting weapon. He has proved the injury report which has been marked as Exhibit-6. 17. P.W.13 (Janardan Singh) has proved the sanha which has been marked as Exhibit-7. 18. The statement of the accused was recorded u/s 313 Cr.P.C. in which he has denied his complicity in the murder of Jalim Rikhiyasan. 19. It has been submitted by Ms. Ayushi , learned Amicus Curiae for the appellant that save and except the purported confession of the appellant and the fact that he was last seen with -8- the deceased there is no other evidence to implicate him in the murder of Jalim Rikhiyasan. 20. Mr. Pankaj Kumar Mishra, learned A.P.P. for the State has submitted that the confession was made by the appellant and Leela Devi before the villagers and the Police and both in their separate confessions had accepted their role in the commission of murder of Jalim Rikhiyasan. There is a strong circumstance pointing to the guilt of the appellant which has been appropriately dealt with by the learned trial court. 21. We have heard the learned counsel for the respective sides and have also perused the Trial Court Records. 22. On 23.02.1997 the appellant, the deceased and the wife of the deceased Leela Devi were going towards the Hatia and this was witnessed by P.W.4, P.W.5, P.W.7, P.W.9 and P.W.10. On 24.02.1997 the dead body of Jalim Rikhiyasan was located in the Kowa River with marks of injury on his body. While the appellant and Leela Devi were trying to flee the village they were apprehended by the villagers and it is alleged that both of them separately confessed about their involvement in the murder. The reason for the occurrence has been alleged to be the illicit relationship between the appellant and Leela Devi. 23. Admittedly, there are no eye-witnesses to the occurrence. The only incriminating circumstances are the appellant having been last seen with the deceased and the confession made by the appellant before the Police. So far as the last seen theory is concerned, P.W.4 had seen all of them going towards the market on 23.02.1999 at 8:00 A.M. and the dead body was located on 24.02.1997. There was no close proximity between the deceased having been last seen with the appellant and the recovery of the dead body. Moreover, the witnesses have remained silent as to whether during the intervening period either of them were seen or not. There has been no complaint made anywhere from the side of the family of the deceased if the deceased had -9- indeed disappeared on 23.02.1997. None of the inmates of the house or the family members of the deceased have been examined by the prosecution. The circumstances highlighted by the prosecution with respect to the last seen theory has left a veritable vacuum during the intervening period and, therefore, it cannot be said to be an incriminating factor against the appellant. So far as the purported confession of the appellant is concerned, the precursor to the same is an alleged illicit affair between the appellant and Leela Devi. The appellant was related to the deceased and the illicit affair seems to stem from the fact that the appellant and Leela Devi used to converse and laugh as has been stated by P.W.4. The confession of the appellant was before the villagers who from the evidence of the prosecution witnesses appears to have been enraged with the murder of Jalim Rikhiyasan and a connection was made of the appellant and Leela Devi having an affair with the murder. Both were apprehended by the villagers and both seem to have separately confessed. The confession rendered before the agitated villagers cannot by any stretch of imagination be said to be voluntary but would be apparent that the same was extracted under duress and coercion. 24. The evidence of P.W.11 (I.O.) reveals that on search of the house of the appellant no incriminating articles were recovered. He has also specifically stated that no blood was detected on the wearing apparels of the accused which contradicts the evidence of P.W.6 that blood was found on the saree of the co- accused Leela Devi. 25. The learned trial court has not analyzed the circumstances put forward by the prosecution which on a clear dissection would reveal the weak nature of such circumstances and, we therefore on the basis of the discussions made hereinabove set aside the judgment and order of conviction and sentence dated 27.02.1999 (sentence passed on 06.03.1999) passed by Sri R.P. Verma, learned Sessions Judge, Godda in S.T. No. 88 of 1997. -10- 26. This appeal is allowed. 27. Since the appellant is on bail, he is discharged from the liability of his bail bond. 28. Before parting with this judgment, we must appreciate the assistance rendered by Ms. Ayushi , the learned Amicus Curiae and direct the Member Secretary, High Court Legal Services Committee to extend the stipulated fees to the learned Amicus Curiae within a period of two weeks from the date of receipt/production of a copy of this order. 29. Office is directed to send a copy of this judgment to the Member Secretary, High Court Legal Services Committee for the needful. (Rongon Mukhopadhyay, J.) (Arun Kumar Rai, J.) High Court of Jharkhand at Ranchi Dated, the 14th day of January, 2025. A. Sanga /-