Judgment:
Vishnudeo Narayan, J.
1. This criminal appeal has been preferred by the appellant named above against the judgment dated 27.4.1996 passed in S.T. No. 5 of 1994 by Shri Shree Prakash Rai, 5th Additional Judicial Commissioner, Ranchi whereby and whereunder he along with two co-accused person, namely, Raj Kumar Pandit and Namuddin Ansari have been found guilty for the offence punishable under Section 364/34 and 302/34 of the Indian Penal Code and the appellant was convicted and sentenced to undergo R.I. for ten years for the offence under Section 364/34 of the Indian Penal Code and R.I. for life for the offence under Section 302/34 of the Indian Penal Code. However, both the sentences were ordered to run concurrently. It is relevant to mention here that the accused Raj Kumar Pandit and Naimuddin Ansari had preferred Criminal Appeal No. 98 of 1996 against the impugned judgment whereby they were convicted and the said appeal was allowed by the Bench of this Court as per judgment dated 20.3.2001 and the impugned judgment regarding their conviction was set aside and they were acquitted. Appellant Sibu Ganjhu was in custody and he did not file an appeal against the impugned judgment and after the acquittal of the aforesaid two appellants, namely Raj Kumar Pandit and Naimuddin Ansari, this appellant preferred this appeal from jail on 26.6.2002.
2. The prosecution case has arisen on the basis of the written report (Ext. 2/1) of PW 3, Bhukli Devi, the mother of Seema Kumari, aged about 6 or 7 years who is the deceased of this case lodged before the Khelari P.S. on 6.7.1993 at 16.45 hours regarding the occurrence which is said to have taken place on 3.7.1993 at 19.00 hours at H.M.P. Colony, 'G' Type Ghowra, P.S. Khelari, District Ranchi and on the basis of the written report, formal F.I.R (Ext. 2) was drawn and the case was instituted on 6.7,1993. The written report and the formal F.I.R. was received in the Court of C.J.M., Ranchi on 7.1993.
3. The prosecution case as per Ext. 2/1, in brief, is that Seema Kumari aged about 6-7 years was playing in H.M.P. Colony, 'G' Type Ghowra in the evening of 3.7.1993 and she became traceless since 7.00 PM on that day and in course of her hectic search it transpired from PW 1, Sita Kumari and PW 2, Phulwa Devi that this appellant Sibu Ganjhu had kidnapped Seema Kumari. It is alleged that when the appellant did not bring back Seema Kumari to her house, Somra Uraon, Binod Ganjhu and several other persons of the Mohalla apprehended Sibu Ganjhu from Ojha Saran within P.S. Chanho and brought him to the said colony and he confessed before them and the persons assembled there that at the instigation of Raj Kumar Pandit and Naimuddin Ansari and as per their planning he had kidnapped Seema Kumari on the pretext of providing her loaf because of the fact that Raj Kumar Pandit and Naimuddin Ansari had a quarrel with the father of Seema Kumari in course of eating and drinking and, thereafter, this appellant along with them carried Seema Kumari to Selari Magazine Purna Jungle and they have committed the murder of Seema Kumari and had thrown her dead body there. It is further alleged that as per the confessional statement of the appellant Sibu Ganjhu, the persons assembled there went to A.C.C. Magazine, Purna Selari Jungle along with the appellant where the skeleton of Seema Kumari was found as pointed by the appellant and the said skeleton was identified being the skeleton of Seema Kumari as per green bangles in one hand and white bangles in the other hand of the said skeleton as well as her old yellow check frock and brown panty by the informant and her husband PW 4. Arjun Bhuyan and several other persons of the Mohalla. It is alleged that the appellant Sibu Ganjhu had kidnapped Seema Kumari while she was playing which has been witnessed by PW 1, Sita Kumari and PW 2, Phulwa Devi and, therefore, the appellant Sibu Ganjhu along with two acquitted appellants have committed her murder due to enmity and, therefore, written report was lodged before the police and the appellant Sibu Ganjhu was produced before the police and the people of the locality collected there had also assaulted the appellant Sibu Ganjhu.
4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case due to enmity.
5. The prosecution has, in all, examined eight witnesses to substantiate the prosecution case PW 3, Bhukli Devi, the informant and PW 4, Arjun Bhuiyan is the mother and father respectively of Seema Kumari, the deceased of this case. PW 1, Sita Kumari, the full sister of the appellant Sibu Ganjhu and PW 2, Phulwa Devi are the alleged ocular witnesses of the kidnapping of Seema Kumari by the appellant Sibu Ganjhu. PW 5, Sahdeo Munda alias Shobrai and PW 6, Bhuneshwar Uraon are the witnesses of seizure of yellow check frock and brown panty from A.C.C. Magazine, Puran Selari Jungle and their signatures thereon are Ext. 1 and Ext. 1/3 respectively. Their statement was also recorded earlier under Section 164 of the Cr. PC and their signatures thereon are Ext. 1/1 and 1/2 respectively. PW 7, Binod Ganjhu has turned hostile and he does not support the prosecution case. PW 8 is a formal witness who has proved the formal F.I.R (Ext. 2) and the written report (Ext. 2/1). It is pertinent to mention here that the I.O. of this case has not taken oath in support of the prosecution case and there is also no report of the Forensic Science Laboratory regarding the skeleton alleged to have been recovered from the jungle aforesaid. No oral and documentary evidence has been brought on record on behalf of the defence.
6. In view of the oral and documentary evidence on the record the learned Court below has found the appellant Sibu Ganjhu along with Raj Kumar Pandit and Naimuddin Ansari guilty for the offence under Section 364/34 and 302/34 of the Indian Penal Code and they were convicted and sentenced as stated above but Raj Kumar Pandit and Naimuddin Ansari aforesaid had earlier filed Criminal Appeal No. 98 of 1996 which was allowed by the Bench of this Court on 20.3.2001 and they were acquitted.
7. Assailing the impugned judgment as unsustainable it has been submitted that the learned Court below did not meticulously consider the evidence on the record and has erred in coming to the finding of the guilt of the appellant. It has been submitted that there is no legal evidence at all on the record to connect or implicate this appellant in the occurrence in question and there is no basis for the learned Court below to come to the conclusion that this appellant has committed the murder of Seema Kumari and the alleged extra judicial confession of this appellant is inadmissible in evidence in view of the inherent infirmities in respect thereof. It has also been submitted that the seizure list besides the alleged seized articles has not been brought on the record and the appellant stands seriously prejudice due to the non-examination of the I.O. in this case as well as due to the absence of any report of the Forensic Science Laboratory establishing the fact that the said skeleton is of Seema Kumari and therefore, there is no basis on the record at all to hold the appellant is guilty for the offence under Section 302/34 of the Indian Penal Code. Lastly it has been submitted that in the similar facts and circumstances of this case, appellant Raj Kumar Pandit and Namuddin Ansari have been acquitted in Criminal Appeal No. 98 of 1996 by the Hon'ble Court and the impugned judgment in respect thereof has been set aside and as such this appellant should also be acquitted of the charges levelled against him.
8. The learned A.P.P. has submitted that the acquittal of the appellant Raj Kumar Pandit and Naimuddin Ansari in Criminal Appeal No. 98 of 1996 has no bearing so far this appeal of the appellant Sibu Ganjhu is concerned in view of the evidence of PWs 1 and 2 on the record that this appellant Sibu Ganjhu had kidnapped Seema Kumari when she was playing in H.M.P. Colony, 'G' Type Ghowra coupled with the fact that the appellant Sibu Ganjhu had made extra judicial confession before the prosecution witnesses regarding the commission of murder of Seema Kumari by him and other acquitted appellants and this extra judicial confession of this appellant proves beyond all reasonable doubts his participation in kidnapping Seema Kumari and, therefore, commission of her murder by him. It has also been submitted that the skeleton of Seema Kumari was identified by her bangles, frock and panty found near the skeleton. Lastly it has been submitted that the learned Court below after meticulous scrutiny of the evidence on the record has rightly found this appellant guilty and there is no illegality in the impugned judgment requiring interference therein.
9. According to the prosecution case Seema Kumari, 6-7 years old daughter of PW 3, the informant was playing in H.M.P. Colony 'G' Type Ghowra at 7 o'clock on 3.7.1993 and she disappeared from that place and inspite of hectic search she could not be traced out and in course of search PW 1, Sita Kumari and PW 2, Phulwa Devi had stated to the informant that the appellant Sibu Ganjhu had taken her away with him and when Seema Kumari was not brought back in the night to her house this appellant was apprehended at village Ojha Saran in Chanho P.S. by the residents of the Mohalla, namely, Somra Uraon, Binod Ganjhu and others and on his apprehension, the appellant made extra judicial confession before the persons of the Mohalla collected there as well as the Informant and the others that he had kidnapped Seema Kumari at the instance of acquitted appellant Raj Kumar Pandit and Naimuddin Ansari from the place she was playing on giving allurement of providing her with a loaf. The appellant has also made extra judicial confession that the aforesaid two acquitted appellants had a quarrel with PW 4, Arjun Bhuiyan, the father of Seema Kumari on the issue of eating and drinking and at their instance, appellant Sibu Ganjhu had kidnapped Seema Kumari and he along with them carried her to A.C.C. Magazine, Purana Jungle where she was done to death and throwing her dead body there he along with two acquitted appellants had fled away from there and at the instance of the appellant Sibu Ganjhu, the skeleton was found in the said jungle and that skeleton was identified as per bangles, frock and panty to be of Seema Kumari, PW 3, Bhukli Devi, the informant has deposed that Seema Kumari was playing in the evening near her house and when she did not return to her house, a search was made for her and in the course of search on query PW 1, Sita Kumari told the informant that her brother, appellant Sibu Ganjhu had taken away Seema Kumari with him for providing loaf. She has further deposed that further search was made and in the following morning the appellant was also not found in his house. She has further deposed that she learnt after four days that the appellant is in village Ojha Saran from where he was apprehended and brought to the P.O. village. She has also deposed that when the persons of the locality started assaulting him, he made a confession that he along with the acquitted two appellants aforesaid had committed the murder of Seema Kumari by stones In A.C.C. Magazine, Purana Selari Jungle. Her evidence is further to the effect that the appellant also pointed the place where the skeleton was found in presence of the people of the locality and she has identified the said skeleton being of Seema Kumari on the basis of her bangles, frock and panty. Similar is the evidence of PW 4 in his evidence on oath. PW 1, Sita Kumari is the full sister of the appellant Sibu Ganjhu and she is aged about nine years when her evidence was recorded on 3.8.1994 which means that at the time of the occurrence she was eight years old. The learned Court below before recording her evidence had put some questions to assess her understanding faculty and being satisfied, her evidence was recorded. PW 1, Sita Kumari has deposed that on the day of the occurrence she was playing with Seema Kumari and the appellant Sibu Ganjhu took Seema Kumari with him after inducing her and telling her that she will be brought to her house after taking loaf. She has also deposed that she had told the appellant that the mother of Seema Kumari will chide her as she plays with her but the appellant told her that the mother of Seema Kumari will not chide her. She has also deposed that the appellant took Seema Kumari towards Barka Selari. She has further deposed that, subsequently, she came to learn that she was found dead under a tree on search. PW 2, Phulwa Devi has deposed that she had seen Sibu Ganjhu carrying Seema Kumari on the day of the occurrence and at the time Seema Kumari was playing with PW 1, Sita Kumari. She has also deposed that she had made enquiry from the appellant as to why and where is he taking her and at this the appellant Sibu Ganjhu told her that he is taking her to provide her with a loaf. She has also deposed that she has stated the aforesaid facts to PW 3, the informant when she was making search of Seema Kumari. Her evidence is further to the effect that inspite of hectic search Seema Kumari was not found and on 6th of July. 1993 it transpired that the appellant is in village Ojha Saran from where he was brought to the village and he made confessions that he along with two other acquitted appellants has committed the murder of Seema Kumari in Selari Mazagine Purna Jungle and the skeleton of Seema Kumari was found at the place as pointed by the appellant Sibu Ganjhu. In her cross examination she has specifically deposed that the appellant Sibu Ganjhu has alone kidnapped Seema Kumari. From the evidence of PWs1 and 2 it is established beyond all shadow of doubts that this appellant had kidnaped Seema Kumari. PWs 1 and 2 are the ocular witnesses of the kidnapping of Seema Kumari by the appellant Sibu Ganjhu. Appellant Sibu Ganjhu has made extra judicial confession before the people of the Mohalla including the informant and her husband besides PW 5. This part of the extra judicial confession of the appellant Sibu Ganjhu stands corroborated as per testimony of PWs 1 and 2. PW 1 Sita Kumari, being the full sister of this appellant is the most competent and natural witness of the occurrence as she was playing with Seema Kumari at the time of the occurrence when she was kidnapped by her brother, the appellant Sibu Ganjhu. PW 2, Phulwa Devi is equally a competent and natural witness so far the kidnapping of Seema Kumari is concerned. PW 1 and PW 2 have no animus to depose falsely. I, therefore, see ring of truth in the evidence of PWs 1 and 2 that the appellant Sibu Ganjhu has kidnapped Seema Kumari from the place where she was playing with PW 1, Sita Kumari. Therefore, the finding of the guilt of the appellant under Section 364/34 of the Indian Penal Code of the appellant Sibu Ganjhu on the basis of the evidence on the record by the trial Court is legal and valid and there is no infirmity at all in respect thereof.
10. It is pertinent to mention at this stage that there is no ocular witness ofcommission of the murder of Seema Kumari by this appellant along with two acquitted appellants. The dead body of Seema Kumari was not recovered from the place as pointed by the appellant Sibu Ganjhu. A skeleton was found at the place. PW 3 and PW 4 claim to have identified the said skeleton being of Seema Kumari on the basis of the bangles in the hands of skeleton besides the frock and panty which was lying near the said skeleton. Seizure list, however, does not whisper regarding the existence of bangles in the skeleton. The frock and the panty are the things of common variety. There is no legal evidence at all on the record to establish the fact that the said skeleton is of human being and specifically of Seema Kumari. No report of Forensic Science Laboratory is on the record to clear the mist regarding the skeleton being the dead body of Seema Kumari. The extra judicial confession of the appellant Sibu Ganjhu is to the effect that he along with the two acquitted appellants have committed the murder of Seema Kumari and had thrown her dead body from where the skeleton has been found. There is no unimpeachable legal evidence on the record to establish the fact that the said skeleton has its co-relation with Seema Kumari. The extra judicial confession of the appellant Sibu Ganjhu in the absence of any corroboration by legal evidence of independent, natural and reliable witness had no legal being. It is settled principle of law that extra judicial confession uncorroborated by any other proof of the corpus delicti are of themselves not sufficient to justify a conviction. As a rule of caution there must be some material corroboration to an extra judicial confession specially in a case of murder. Here, in this case as per the evidence on the record a large number of persons had apprehended the appellant and brought him to the P.O. village and assaulted him and, thereafter, he has made the said confession regarding the commission of murder of Seema Kumari. Therefore, this part of the confession cannot be said to be voluntary in the absence of corpus delicti. In this view of the matter the conviction of this appellant under Section 302/ 34 of the Indian Penal Code suffers with infirmity and in the facts and circumstances of this case conviction of this appellant for the offence under Section 302/34 of the Indian Penal Code can never be maintained.
11. After careful consideration of all the facts, circumstances and materials on the record the conviction and sentence of the appellant under Section 302/34 of the Indian Penal Code is hereby set aside. However, the conviction and sentence of the appellant for the offence under Section 364/34 of the Indian Penal Code is hereby affirmed.
12. The appeal is hereby dismissed with modification aforesaid.
Lakshman Uraon, J.
I agree. Appeal dismissed with modifications.