Avinash Chouhan alias Avinash Chandra Kishore vs The State of Jharkhand

This appeal arises against the Judgment dated 15.12.2000 passed by the Sessions Judge, Dhanbad in Sessions Trial No. 404 of 1997, whereby and whereunder, the learned Sessions Judge convicted the appellant for committing the offence under Sections 302 and 201 of the Indian Penal Code and sentenced him to undergo R.I. for life and to pay a fine of Rs. 5,000/-, in default to undergo R.I. for a further period of one year for the offence u/s 302 IPC and for the offence u/s 201 IPC, the appellant was sentenced to undergo R.I. for five years and to pay a fine of Rs. 1,000/-, in default to undergo R.I. for a further period of three months. However, both the sentences were directed to run concurrently.

The informant Kashi Nath Paswan (P.W.-7) gave information to the Police on 14.08.1997 at about 11:00 P.M. that his son, aged about 7 - 8 years, namely Hand Kishore Paswan, was missing from his house and at that time, he was wearing a Ganjee and a Pant. The informant further alleged that the son of Raju Handi, who was also aged about 7-8 years, was stating that he saw his son (Nand Kishore) with the accused Avinash Chouhan and the accused Avinash Chouhan was telling Nand Kishore to bring that Kite which was going towards Khadan (Mine) and at this, the son of the informant Nand Kishore, ran towards the Kite and Avinash Chouhan also followed him. Since thereafter, his son did not return and therefore, he believed that the accused Avinash Chouhan had kidnapped his son in order to commit his murder. He also suspected that accused Avinash Chouhan might have killed his son and concealed his dead body.

The motive behind the occurrence was alleged that on the previous evening, the accused Avinash Chouhan had quarrel with two girls of the Mohalla i.e. Tarini Bouri (P.W.-3) and Podo Bouri (P.W.-2) and he had also abused and assaulted them. The informant complained about the same to the Police by taking those two girls to the Police Station and the Police had scolded the accused Avinash Chouhan due to which, he was annoyed and because of that, he had committed the offence.

After the F.I.R. was registered, the investigation was taken up by the Police and during investigation, the dead body of the informant''s son Nand Kishore was found and thereafter, the chargesheet was submitted against the appellant Avinash Chouhan and his father Chouthi Jamadar u/s 302, 201 and 120-B read with Section 34 of the Indian penal Code.

In order to establish the charges, altogether 13 witnesses were examined on behalf of the prosecution.

The case of the defence was of false implication.

The learned Trial Court, on the evidence adduced by the prosecution, convicted and sentenced the present appellant Avinash Chouhan for the offence u/s 302 and 201 of the Indian Renal Code but he acquitted the other accused i.e. Chouthi Jamagar, the father of the present appellant from the charges holding that the prosecution failed to establish the case against the said accused Chouthi Jamadar.

Admittedly, there is no eye witness to the occurrence and the case of the prosecution is based on circumstantial evidence including the evidence of the fact that the deceased was last seen with the appellant.

The dead body of the boy Nand Kishore could be found on the fourth day of the alleged occurrence which was concealed under a stone at Project Pahari. The Post Mortem on the dead body of the deceased was conducted by P.W.-1 Dr. Vinod Kumar, who found the following injuries on his person:

(i) Lacerated wound - 1/2" x 1/4" x scalp deep on the right side of forehead;

(ii) Lacerated wound 3" x 1 1/4" x bone deep on the right parietal region.

(iii) 1/4" apart two lacerated wounds measuring 1/2" x 1/4" X one deep each found situated 2" above the right mastoid.

(iv) Lacerated wound 3/4" x 1/2 x muscle deep on the Chin. Blood stains were seen at the margins of the above mentioned wounds.

According to the Doctor, some Post Mortem wounds were also there which was caused by animal teeth bite. The Doctor further stated that on dissection and removal of the skull, he found the linear fracture of right fronto parietal region. Depressed fracture 2" x 1 1/2" area pt right parietal bone under injury No. 2 was also found He further found one injury of one inch diameter of occipital bone which showed the fresh fracture under injury No. 3. Liquified brain matter was found running out of the depressed fracture area and the internal organs were in decomposing state. According to the Doctor, the time elapsed since death was 72 hours and in his opinion, the death was due to cranio cerebral injury caused by hard and blunt substance.

Learned Counsel appearing for the appellant, by taking us to the entire oral evidence, submitted that there was vital contradictions in the evidence of P.Ws. and further that the prosecution failed to establish the fact by cogent and reliable evidence that the deceased was last seen with the appellant and further that the circumstances which was relied by the Trial Court for convicting the appellant, was not as such, which led to only one conclusion that the present appellant in fact committed the murder of the deceased.

P.W.-7, the informant who is the father of the deceased stated in his evidence that on 14.06.1997, his son was missing since 05:00 P.M. and he could know about it only at 08:30 P.M. in the night. At that time, he was sitting in a Tea Stall and when he went to his house and asked from his wife about his son then she told that Ranjit Handi (P.W.-12), the son of Raju Handi, had informed her that while her son Nand Kishore was flying kite with Ranjit Handi, the appellant Avinash Chouhan asked Nand Kishore to come along with him towards Khadan side since one kite was going to that side and then the accused Avinash Chouhan and the boy Nand Kishore went together towards the Khadan. The informant further stated in his evidence that on 13.06.1997, Avinash Chouhan had eve teased and assaulted two girls namely Tarini Bourin (P.W.-3) and Podo Bourin (P.W.-2). Those two girls had come to him and then he took them to the Police Station and at the Police Station, the Police Officer scolded and abused Avinash Chouhan and due to that, Avinash Chouhan had kidnapped his son since because of that, Avinash had to face humiliation.

Therefore, from the evidence of the informant, it appears that P.W.-7 came to know from Ranjit Handi (P.W.-12) and Nokani Devi @ Lomni Devi (P.W.-8) that the appellant Avinash had taken his son Nand Kishore while he was flying kite.

P.W.-8 Nokani Devi (a) Lomni Devi stated in her evidence that on the alleged date of occurrence at about 5:00 P.M., while she was going towards ''Maidan'' to attend the call of nature, she saw that the informant''s son Nand Kishore Paswsin and the appellant Avinash were going towards Khadan side and after three days, the dead body of the boy Nand Kishore was found. She further stated in her evidence that she told this fact to the mother of Nand Kishore when she had come to her house in search of her son.

P.W.-12 Ranjit Handi also corroborated the statements of P.W.-8 by stating the fact that on the alleged date of occurrence, at about 5:00 P.M., he and Nand Kishore were flying Kite and at that time, one kite which was cut off from the thread, was going towards Khadan (Mine) and then the accused Avinash Chauhan asked Nand Kishore to go towards that Kite to pick-up and then he took Nand Kishore towards the Khadan and since thereafter, Nand Kishore did not return.

Learned Counsel for the appellant submitted that the evidence of the child witness P.W -12 Ranjit Handi should not be believed as he was not capable of understanding the tiling as he was only 7-8 years only but such contention cannot be accepted in view of the clear and unambiguous statement of the said witness and the age of the said witness was assessed by the Trial Court to be about 12 years. From the evidence of this witness P.W.-12, it appears that he was capable for understanding the things and he is a truthful witnesses and his evidence is reliable.

P.W.-3 Tarini Bourin in her evidence, also stated that she had seen the appellant taking away the boy Nand Kishore when he was flying Kite on the alleged date and time of occurrence. Though, there are some minor contradictions in her evidence but that does not affect the case of the prosecution.

The other witness on the point of "last seen" is P.W.-11 Akhilesh Paswan. From his evidence, it appears that he also stated in his evidence that he saw the accused Avinash Chouhan taking away Nand Kishore towards Khadan side and thereafter, he never came back.

In our view, on consideration of the evidence of P.Ws.-3, 8, 11 and 12, the prosecution has been able to establish the fact that the deceased boy Nand Kishore was last seen with the appellant.

So far as the question of motive is concerned, it appears from the evidence of the prosecution that P.W.-3 stated in her evidence that a day prior to the alleged occurrence, she and her sister as well as her mother had gone to the Police Station along with the informant Kashi Nath Paswan (P.W.-7) since the appellant Avinash Chouhan had abused her and her sister and had also teased them. On the complaint made by the girls and of the informant, the Officer Incharge of the Police Station had slapped the accused Avinash Chouhan and then Avinash had threatened that he will teach them lesson.

P.W.-4 Shankar Sao, in his evidence stated that the appellant Avinash Chouhan had threatened Kashi Nath (P.W.-7) when they came back from the Police Station after informing the Police regarding Tarini Bourin and her sister.

From the evidence of the prosecution, it further appears that the appellant also made an extra judicial confession before the public that he had committed the murder of the deceased. It further appears that on his being pointing out, the dead body of the deceased boy was recovered by the Police.

So far as the extra judicial confession regarding commission of murder is concerned, the same cannot be taken into consideration but the important aspect of the matter is chat on being pointed out by the appellant, the dead body of the deceased was recovered since he had shown the place of occurrence and this is a strong circumstantial evidence against the appellant Avinash Chauhan which clearly points out towards the guilt of the appellant.

From the evidence which has been discussed above, if conclusively points out that it was the appellant who committed the murder of the deceased boy and for that he had a motive for such murder which has already been discussed in earlier paragraphs.

In view of the discussions and findings, we hold that the learned Trial Court has rightly convicted and sentenced the appellant for the offence u/s 302 and 201 of the Indian Penal Code.

Accordingly, we uphold the conviction and sentence against the appellant passed by the Trial Court and dismiss the appeal having found no merit.