Mandip Dusadh v. State Of Bihar — 1984 DIGILAW 421 (PAT)

Judgment K.B.SINHA, J. 1. The appellants, who are twelve in number, challenged the judgment of the Second Additional Sessions Judge, Arrah, by which they had been convicted under Section 302 read with 34 of the Indian Penal Code hereinafter referred to as the Penal Code) and sentenced to undergo rigorous imprisonment for life. 2. The prosecution case, as disclosed in the first information report (Ext. 2) lodged by PW 2, Chand Butan Davi, a resident of village Bansidihri, P. S. Sahar in the district of Bhojpur, is that on 21-8-1974 at about 4 P. M. her son Rajendra Rai, aged about 31 years went toward west of the village to see the standing paddy crops in his fields. When he did not return till the dusk, the informant started making search for her son in the village, but could not get any trace. 3. In course of search, she went to the Ahar situated west of the village, but Rajendra Rai was not found. There she noticed her co-villagers-appellants, Badal Dusadh, Mundrika Mishar and Lakhpati Musahar moving with Khanti in their hands. Besides them, appellants Muni Lall Dusadh, Deoraj Dusadh, Chandip Dusadh, Mandip Dusadh, Satan Dusadh and Nihora Kanu were seen sitting at the Ahar. When asked by the informant, they denied to have seen Rajendra Rai. Thereafter, she came back to the village and went to the houses of her castemen, but all her efforts to trace Rajendra Rai proved fruitless. However, she learnt from PW 6 Bishram Rai and PW 10 Daaramdeo Rai of her village that they had seen Rajendra Rai in the evening talking to the appellants, named above, at the Ahar. Then the informant sent the male members of her family, along with some other persons to search for her missing son, but they also failed to trace him. The members of the search party, however, found a white Gamachha (napkin) and the stick of Rajendra Rai lying at the Ahar. She suspected that the said appellants were responsible for making Rajendra Rai traceless and doing away with his life. She gave a general description of the missing son and this wearing apparel with which he had left the house. 4. The first information report was lodged at Sahar Police Station on the same day (21-8-1974) at 9 P. M., on the basis of which a case was registered. She gave a general description of the missing son and this wearing apparel with which he had left the house. 4. The first information report was lodged at Sahar Police Station on the same day (21-8-1974) at 9 P. M., on the basis of which a case was registered. In course of investigation, PW 1 Ram Sagar Pandey, a Junior Sub-Inspector of Police than attached to the Sahar Police Station, visited village Bansidihri at at 11 P. M. The informant produced a Chadar and the lathi of Rajendra Rai, which was seized by him in presence of PW 6 Bishram Rai and PW 11 Buwan Rai and a seizure list (Ext. 3) was prepared. He went at the Ahar situated only at a distance of four yards from village Nawada in search of Rajendra Rai, but could not find any trace. A Khadar Dhoti with blue border and torn Ganji were found and seized at the Ahar, which were stated to be that of Rajendra Rai. On 23-8-1974 again he went to village Basidihri and made fresh effort with the help of villagers to trace Rajendra Rai. In course of search. a khatia (cot) was found lying on the sand in the bed of river Sone, which was indentified by PW 4 Ram Ayodhaya Rai and some other villagers as belonging to the appellant Mandip Dusadh. The cost was seized in presence of PW 10 and one Narain Rai for which a seizure list was prepared (Ext. 3/2). Eagles were seen flying over a place near Baruhi Ghat of River Sone, where some dogs were also loitering. The Sub-Inspector of Police went there and found a headless body lying on the sand, which was identified to be that of Rajendra Rai by the villagers, who had accompanied him. After preparing inquest report, the dead body was sent for post-mortem examination to Arrah State Hospital. A red thread was found tied around the waist of the dead body and there were cracks in the sole of the Left foot. Subsequently, on 28-8-1974, the Investigating Officer conducted search of the house of appellant Mandip Dusadh in presence of Harnandan Dusadh and PW 10 Ram Naresh Rai and from there a blood stained Fasusi was recovered, for which a seizure list (Ext. 6) was prepared The Police submitted charge-sheet after completion of the investigation. 5. Subsequently, on 28-8-1974, the Investigating Officer conducted search of the house of appellant Mandip Dusadh in presence of Harnandan Dusadh and PW 10 Ram Naresh Rai and from there a blood stained Fasusi was recovered, for which a seizure list (Ext. 6) was prepared The Police submitted charge-sheet after completion of the investigation. 5. After taking cognizance, the case was committed to the court of session and eventually the trial was held in the court of the Second Additional Sessions Judge, Arrah, where a charge under Section 302 read with 34 of the Penal Code was framed against all the appellants. They were also charged under Section 201 of the Penal Code, but the learned Additional Sessions Judge has neither dealt with the evidence of the witnesses with regard to this charge, nor has recorded any finding. The learned counsel appearing on behalf of the appellants, therefore, rightly submitted that the appellants would be deemed to have been acquitted of the latter charge. 6. In the trial court, in all twelve witnesses were examined on behalf of the prosecution. The appellants did not adduce any evidence. Out of the said witnesses, PW 5, Dr. P. S. Ojha held post mortem examination over the dead body of Rajendra Rai and PW 1 Ramsagar Pandey, Sub-Inspector of Police, conducted the main investigation in the case. PW 3 Chand Bodan Devi, PW 9 Sarwanand Rai and PW 11 Bir Bhushan Rai were tendered by the prosecution for cross-examination. The evidence of PW 12 Ram Naresh Rai is formal in nature as he is a witness of seizure. The remaining six witnesses deposed on the point of this occurrence. 7. At the outset, it is worthwhile to mention that it is a case of circumstantial evidence, as no witness stated in the trial court to have seen the appellants or any one committing the murder of Rajendra Rai. The learned counsel for the appellants contended that on the basis of evidence produced on behalf of the prosecution, no reasonable conclusion could be drawn that none else except the appellants committed murder of Rajendra Rai. On the other hand, the learned counsel for the State, strenuously argued that the prosecution conclusively e tablished the participation of the appellants in commission of the said offence. 8. On the other hand, the learned counsel for the State, strenuously argued that the prosecution conclusively e tablished the participation of the appellants in commission of the said offence. 8. In a case of circumstantial evidence, each link forming the chain of the circumstance has to be proved by direct evidence and all the circumstances together should be such so as to exclude all the hypothesis consistent with the innocence of the accused. In this case, PW 2 Chand Butan Devi supported her version as given in the first information report and further said that the deceased was a bachelor and used to put on red thread around his waist and there were cracks in the sole of his left foot. She said to have learnt from PW 6 Vishram Rai and PW 10 Dharamdeo Rai that they had seen the deceased talking to the appellants, named in the first information report, on the embankment of the Ahar in the evening of the day of occurrence. She had personally seen the said appellants at the Ahar on that day (21-8-1984) at about 8 P. M. and when asked they denied any knowledge about Rajendra Rai. She admitted that the deceased had not taken any Chadar with him when he had left the house. The Gamchha and stick were not recovered in her presence. She further added that the appellant Mandip Dusadh had held out threat to Rajendra Rai to do away with his life about two or three months prior to the date of occurrence, but it appears that she did not make such statement before the police. 9. In sequence of the events, the evidence of PW 6 Bishram Rai and PW 10 Dharamdeo Rai falls for consideration. PW 6 said in his evidence in the trial court that on the day of occurrence he went to see his field towards the west of his village. While he was coming back at about 5 P. M., he noticed appellants Muni Lall Dusadh, Deoraj Dusadh, Satan Dusadh, Chandip Dusadh, Ramdip Dusudh and Niohra Kanu sitting at the Ahar, who were armed with Farm and lathi. When he proceeded ahead, appellants Badal Dusadh. Mundrika Mushar and Lakhpati Mushar were seen moving in that area with Khanti in their hands. He heard hulla raised by the informant at about 7 P.M. that her son Rajendra Rai was missing. When he proceeded ahead, appellants Badal Dusadh. Mundrika Mushar and Lakhpati Mushar were seen moving in that area with Khanti in their hands. He heard hulla raised by the informant at about 7 P.M. that her son Rajendra Rai was missing. Thereafter, this witness, along with PW 4 Ram Ayodhaya Rai, PW 9 Sarswanand Rai and others went out in search of Rajendra Rai and found his Gamachha and stick lying at the Ahar. PW 8 Sumant Rai has total him and other villagers that he had seen Rajendra Rai on that day in the evening purchasing Ganja from Mallu Dhobi in village Nawada. Similarly, PW 10 also said that he had seen the said appellants in two batches at the Ahar. In the first batch, the appellants Muni Lall Dusadh, Deo Raj Dusadh, Satan Dusadh, Chandip Dusadh, Ramdip Dusadh and Nihora Kanu were noticed sitting at Ahar with Farsa and lathi and the remaining three were moving in that area with khanti in their hands. He also learnt from PW 8 Sumant Rai about the presence of the deceased at village Nawada in the evening at the house of appellant Mallu Dhobi to purchase Ganja. Both these witnesses said that PW 8 Sumant Rai and also disclosed that appellants Mandip Dusadh, Mallu Dhobi were seen by him moving in village Nawada. 10. PW 6 had witnessed the seizure of the Dhoti and torn Ganji of Rajendra Rai, lying on the northern embankment of the Ahar. He had also witnessed the seizure of the khatia (cot) found in the bed of river some, which was identified by several witnesses as belonging to appellant Mandip Dusadh. 11. P. W. 8 Sumant Rai stated in the trial court that on the day of occurrence at about 3 P. M. he went to village Nawada to engage labourers. He saw Rajendra Rai sitting at the house of appellant Mallu hobi. When questioned by him, Rajendra Rai said that he would return back to the village after purchasing Ganja. He saw appellants Mandip Dusadh and Mallu Dhobi in village Nawada. He had also seen appellants Muni Lall Dusadh, Chandip Dusadh, Satan Dusadh, Nihora Kanu, Deoraj Dusadh and Ramdip Dusadh sitting armed with lathi and farsa at the embankment of the Ahar of village Nawada. The said appellants, according to him, were talking amongst themselves. He saw appellants Mandip Dusadh and Mallu Dhobi in village Nawada. He had also seen appellants Muni Lall Dusadh, Chandip Dusadh, Satan Dusadh, Nihora Kanu, Deoraj Dusadh and Ramdip Dusadh sitting armed with lathi and farsa at the embankment of the Ahar of village Nawada. The said appellants, according to him, were talking amongst themselves. When he preceeded further, he saw appellants lakhpati Musahar, Mundrika Mushar and Badal Dusadh moving with Khanti. In the evening, he learnt that Rajendra Rai was missing. It has come in his cross-examination that village Nawada is situated at a distance of half a mile west from village Bansidihri. 12. P. W. 7 Surajdeo Rai is also a resident of village Bansidihri. Having learnt in the evening at 7 P. M. on the date of occurrence that Rajendra Rai was killed, he, along with PWs. 6, 9 and some other persons went in search of the deceased. In course of search, the Gamchha and lathi of Rajendra Rai were found lying on the northern Pind of the Ahar of village Nawada. He claimed to have identified them to be that of Rajendra Rai. He also stated that PW 6 had told him that he had seen the appellants Chandip Dusadh, Nihora Kanu, Ramdip Dusadh. Maldip Dusadh sitting at the embankment of the Ahar armed with lathi nnd Lakhpati Mushar and Mundrika Mushar were noticed moving in the field of Bansidihri with Khanti. 13. PW 4 Ram Ayodhaya Rai, alias Suklu Rai stated that the deceased was his brother. The deceased used to put on red thread around his waist and there were cracks in the sole of his left leg. On the day of occurrence at about 5 P. M., he came back to his house after tending cattle. He learnt from his mother that Rajendra Rai had left his house at 4 P. M. and thereafter he did not return. His mother tried to search Rajendra Rai, but she could not find any trace. This witness, along with PW 6 Bishram Rai PW 9 Sarwanand Rai and others went in search of Rajendra Rai and found his Gamachha and lathi lying on the northern pind of Nawada Ahar. His mother tried to search Rajendra Rai, but she could not find any trace. This witness, along with PW 6 Bishram Rai PW 9 Sarwanand Rai and others went in search of Rajendra Rai and found his Gamachha and lathi lying on the northern pind of Nawada Ahar. P. W. 8 Sumant Rai had told that he had seen Rajendra Rai at the house of Mallu Dhobi purchasing Ganja PW 8 also told him that he had seen the appellants, named in the first information report, sitting at Nawada Ahar armed with lathi. Similarly, PW 6 Bishram Rai and PW 10 Dharamdeo Rai had also disclosed about the presence of the said appellants at the Nawada Ahar. According to his evidence, a day after the occurrence, the Dhoti and torn Ganji of Rajendra Rai were found almost at the same place where his Gamchha and lathi were seen and some Ganja was tied in the Dhoti. He identified the cot recovered from the bed of river Sone as belonging to the appellant Mandip Dusadh. He identified the dead body of his bro:her, which was also recovered from the bed of river Sone. In answer to the court question, he stated that there was a special mark in the cot, as its two legs were partly split up and tied with wire. 14. P. W. 5, Dr. P. B. Ojha was posted as Medical Officer at Sadar Hospital, Arrah on 24-8-1974. On the same days he had held post-mortem examination over the headless body of Rajendra Rai and found one incised wound l1/2"x 1/2"x muscle deep on the inner side of left elbow joint. The body was in the advance stage of decomposition. The injuries on the neck, where from the head was found removed, were incised in character. In the opinion of the doctor, the death was due to shock and haemorrhage on account of antamortem injuries found on the dead body of the deceased. 15. P. W. 12 Ram Naresh Rai stated that in his presence the Sub-Inspector of police (PW 1) had conducted the search of the house of appellant Mandip Dusadh on 28-8-1974 and a blood stained fasulti was recovered from there. He has stated that on 28-8-; 974, Gamchha and lathi of Rajendra Rai were found on the northern embankment of Nawada Ahar, which were seized by the Sub-Inspector of Police. He has stated that on 28-8-; 974, Gamchha and lathi of Rajendra Rai were found on the northern embankment of Nawada Ahar, which were seized by the Sub-Inspector of Police. Subsequently, the Khadar Dhoti in which some Ganja was tied and the torn Ganji of Rajendra Rai were found at the same Ahar. He identified the said articles in the court. 16. A general statement was made by almost all the village witnesses that the appellants were naxlites and they used to give threats to the pernsons belonging to the community of Rajendra Rai before the occurrence, but they admitted in cross-examination that no information with regard to the threat was lodged with the police. 17. After taking into consideration the evidence of the witnesses, as mentioned above, the following circumstances emerge against the appellants : (i) The accused persons were naxlites and prior to the occurrence they had been holding out threats to the Bhumihars of village Bansidihri. (ii) On the day of occurrence, the appellants, named in the first information report, were seen sitting at the Ahar of Nawada armed with lathi and Fersa and three of them were moving in that area with Khanti in their hands. This fact has come in evidence of PWs. 6, 8 and 10. (iii) The deceased Rajendra Rai was seen at the house of the appellant Mallu Dhobi for the purpose of purchasing Ganja. This is to be found in the evidence of PW 8. (iv) As stated by PWs. 1, 4, 6 and 7, a Khatia (cot) of appellant Mandip Dusadh was found in the bed of river Sone. (v) A blood stained Fasuli was recovered from the house of appellant Mandip Dusadh on 28-8-1974, according to the evidence of PWs. 1, 2 and 11. (vi) The lathi and Gamchha of the deceased was found at the Pind of the Nawada Ahar in the night of 21-8-1974 and subsequently his Khadar Dhoti and torn Ganji were also found on the embamkment of the said Ahar in the same night. (vii) The headless dead body of Rajendra Rai was found lying at some distance from the place where the cot belonging to the appellant Mandip Dusadh was seen as stated by PWs. 1, 6 and 11. 18. The informant PW 2 Chand Butan Devi mentioned in the first information report and also stated in her evidence in the court that PWs. 1, 6 and 11. 18. The informant PW 2 Chand Butan Devi mentioned in the first information report and also stated in her evidence in the court that PWs. 6 and 10 had told her that they had seen the deceased talking to appellants Satan Dusadh, Deo Raj Dusadh, Badal Dusadh, Muni Lall Dusadh, Mandip Dusadh, Nihora Kanu, Chandip Dusadh, Randip Dusadh, Lakhpati Mushar and Mundrika Dusadh at the Nawada Ahar while they were coming back to the village. But in their evidence, PWs. 6 and 10 did not state that they had seen the deceased talking to them, rather their evidence is that the said appellants were seen sitting or moving near the Ahar. So, the prosecution story with regard to talk of the deceased with the said appellants or in other words last seen in the company of the said appellants is not supported by the evidence of these two witnesses. Further, the evidence of PW 1 with regard to the fact that she learnt from these two witnesses that the said appellants were last seen talking to the deceased is not admissible as it is not supported by them. From what these two witnesses (PWs. 6 & 10) stated in the court, it is manifest that they did not see the deceased in the company of the said appellants at the Ahar. This is the main link to connect the said appellants with the commission of this offence. Even if it is accepted that some of the appellants were seen sitting at the Ahar and some of them were seen moving with Khanti in that area, this does not carry any importance, as it is an usual feature in the villages for the labourers and the formers to move in the fields to see crop or sit over the embankment of the Mar in the evening. 19. According to the evidence of PW 8 Sumant Rai, the deceased was seen in village Nawada at the house of appellant Mallu Dhobi and two of the appellants, namely, Mandip Dusadh and Malli Dusadh were also seen in the said village. No evidence has come that the said three appellants had accompanied the deceased while he was coming back to his village. This witness went to village Nawada at about 3 P. M. and came back in the evening. No evidence has come that the said three appellants had accompanied the deceased while he was coming back to his village. This witness went to village Nawada at about 3 P. M. and came back in the evening. While coming to his village, he also claimed to have seen the above mentioned seven appellants sitting at the Ahar or moving nearby it. But he also did not say that the deceased was seen in their company. Presence of Ganja tied in the Dhoti of Rajendra Rai does not furnish sufficient material for the conclusion that Mallu Dhobi, the vendor of Ganja, had committed the offence. As a matter or fact, PW 8 stated that he had seen the deceased waiting at the house of the appellant Mallu Dhobi to purchase Ganja and this appellant was also not seen with the deceased. 20. Some wearing appreal and the Danta (stick) belonging to Rajendra Rai were recovered from the embankment of Nawada Ahar. There is no explanation as to how these articles came to exist at that spot. There is complete lack of evidence that Rajendra Rai was seen at the Ahar at any time in the night of the occurrence. When the dead body of Rajendra Rai was found the head was missing and according to the post-mortem report an incised wound was found on the neck at the point of severance of the head. No blood stain was found either at the embankment of the Ahar or on the clothes recovered from there or any where by the Police Investigating Officer. 21. The cot, said to be belonging to the appellant Mandip Dusadh, was, recovered from the bed of river Sone lying at some distance from the place where the dead body of Rajendra Rai was found. In answer to the Court question, PW 4 Ram Ayodhya Rai said about the special mark of identification of the cot, but no such special mark was pointed out by the witnesses before the Police Investigating Officer. There may be several reasons for presence of the cot in the bed of river Sone, as for instance some persons might have used it for taking rest while catching fish in the water. 22. There may be several reasons for presence of the cot in the bed of river Sone, as for instance some persons might have used it for taking rest while catching fish in the water. 22. The last link to connect the appellants with this offence is the presence of a blood stained Fasuli, which was revovered from the house of appellant Mandip Dusadh, PW 1, the Police Investigating Officer, admitted in his evidence that it was not sent to the Chemical Examiner for examination. So, it is difficult to accept that the Fasuli contained blood stain and that too of a human being. 23. After consideration of the entire evidence on the record, I find that it falls short of standard of proof, which is required for the legitimate inference that the appellants alone, to the exclusion of any one else, were responsible for committing the murder of Rajendra Rai. Whatever evidence has been produced on behalf of the prosecution, may creat some suspicion against the appellants, but it is well settled that the suspicion cannot take the place of proof and as such it is held that the prosecution has not been able to prove the charge against the appellants beyond all reasonable doubts. 24. In the result, the appeal is allowed and the appellants are acquitted of the charge under Section 302, read with 34 of the Indian Penal Code and the sentence passed against them are set aside and they are discharged from the liability of their bail bonds.