Laxmi Narain Singh v. State of Bihar — 1987 DIGILAW 167 (PAT)

JUDGMENT : M.P. VARMA & S.H.S. ABIDI, JJ. 1. The aforementioned appellants have been held guilty of the charges under sections 364, 302 read with section 34 and section 201 of the Indian Penal Code (in short the Code) and have been convicted thereunder. Each one of them has been sentenced to undergo rigorous imprisonment for life under sections 302/34 of the Code. They have been further sentenced to rigorous imprisonment for 10 years under section 364 of the Code and 3 years under section 201 of the Code. 2. The case against them arose on the statement of Bharat Paswan (P.W. 5) recorded on 1.1.1973 at about 8 A.M. at police station Matiani in the district of Begusarai. According to him Baldeo Paswan (P.W. 3) had come to his place in the previous night about 8 P.M. and reported that the appellants namely Laxmi Narain Singh, Devendra Singh and Bimaldeo Singh had abducted Borhan Paswan from is house. This Baldeo Paswan (P.W. 3) had learnt about the incident of abduction of Borhan from the daughter-in-law of Borhan Paswan and thereafter by one Badami Devi (P.W. 7). He was told that the appellants had taken away Borhan on the plea of harvesting the maize crops. Later on he could further get from the son of Lakhan that a dead body was found floating in a Dhar by the side of river Ganges. On getting the news Bharat Paswan (P.W. 5) suspected that it might be the dead body of Borhan Paswan, but since it was getting late in the night he did not go to the place. The following morning he went to the spot and found that it was the dead body of Borhan Paswan. 3. On the information so lodged before the Police, Fardbeyan (Ext. 4) was recorded and on the basis of which formal F.I.R. (Ext. 3) was drawn up. The police registered a case and took up investigation, got the autopsy of the dead body done by Dr. S.M. Mehdi (P.W. 6) and after examining some of the witnesses submitted charge-sheet against the aforesaid three appellants and they were thus put on trial and convicted of the charge of abduction of Borhan Paswan and causing his death. In the charge as framed by the court below it has been said that the abduction was done on 28.10.1973 which was a Sunday. 4. In the charge as framed by the court below it has been said that the abduction was done on 28.10.1973 which was a Sunday. 4. During the trial prosecution examined 11 witnesses but in appeal before us Counsel for he parties submitted that we are concerned with the statement of Badami Devi (P.W. 7) because she is the only witness who has spoken on the point of abduction. The evidence of other witnesses are corroborative in nature because they all heard from Badami Devi (P.W. 7) about the forcible removal of Borhan Paswan from his house. These witnesses are P.Ws. 1, 2, 3, 4 & 5. They have supported the case of the prosecution to the extent that they were told about the factum of abduction of Borhan Paswan by the three appellants. In this context it has been argued, and in our opinion rightly, that the evidence of P.W. 7 alone deserves consideration to find out how far the prosecution succeeded in proving the charge. It will be relevant to state here that the dead body was recovered after 5 days from the alleged date of occurrence. It was in the advance state of decomposition. Skin and hairs were pooling off. At some stage an attempt has been made to argue that the dead body was beyond identification. It was not the dead body of Borhan. But this point was not seriously contended in view of the identification of the dead body by Badami Devi (P.W. 7) herself and other witnesses above. Various infirmities have been pointed out in the statement of P.W. 7 and the most important of which is that she was examined by a Magistrate under section 164 Cr. P.C. No doubt her statement was recorded under section 161 Cr. P.C. by the investigating officer during the course of investigation. The investigating officer has not been examined in this case. Even the relevant part of the police case diary has not been brought on the record. 5. Attention of some of the witnesses to their previous evidence made before the investigating officer was drawn but that part of the statement was not proved by bringing the case diary on the record, and that having been not done, the Counsel for the appellants has made a grievance that non-examination of the I.O. in this case bas caused serious prejudice. Material contradictions are there in the statements of the witnesses. It is only for the prosecution to produce and examine the I.O. We get from the JUDGMENT : of the court below that the I.O. of this case was dead and in that circumstance the prosecution should have fairly got the relevant part of the Diaries proved in evidence to avoid prejudice. We further gather from the JUDGMENT : impugned that the learned Additional Sessions Judge has based his findings on inadmissible evidence including the statement of the witnesses recorded in the diary, obviously because of his ignorance of the provisions of law. It will be better to quote to get some of the observations made in the JUDGMENT : impugned which would show the error committed by the trial court in disposing of the case finally:– "The I.O. of the case could not be examined because he has been reported to be dead. Hence the defence could not get confirmation from the I.O. about the contradiction on this point u/s 145 of the Evidence Act. The attention of P.Ws. 1, 2 and 5 was drawn to their previous statement made before the police. I tried to find out from the C.D. i.e. the case diary, whether such statements were made or not. I am surprised to find that no such statement was made before the police." 6. It appears that the court at some stage was inclined to hold that the witnesses made contradictory statements and as such his evidence should be rejected, but on further consideration of the case the trial court came to a finding that the statement under section 161 Cr. P.C. is not a legal evidence whereas the statement of the witness on oath in court is a legal evidence, and therefore, preference will have to be given to the legal evidence on the record. Forgetting the fact that the witnesses had miserably contradicted themselves in their previous statement before the police which should have been brought on the record to find out the credibility of a witness for acceptance of the guilt against the accused persons. Forgetting the fact that the witnesses had miserably contradicted themselves in their previous statement before the police which should have been brought on the record to find out the credibility of a witness for acceptance of the guilt against the accused persons. At another stage the learned Additional Sessions Judge forgetting the sequence of the evidence and the manner in disposing of the case observed as follows:– "I find that this witness had not made any such statement before the Magistrate who recorded the statement u/s 164 but definitely made such statement before the police under section 161 and the court had to take this painful task to examine the case diary because the I.O. could not be examined." 7. In the given circumstance, we are constrained to observe that the learned Additional Sessions Judge because of his ignorance of the provisions of law has based his findings on inadmissible evidence in up-holding the charge of guilt against the appellants. To amplify the proposition laid down we go back to the statement of P.W. 7 who is the only witness to testify the factum of abduction of Borhan Paswan from his house. She was examined under section 164 Cr. P.C. Not only that the I.O. of this case has not been examined. But the Magistrate recording the statement under section 164 Cr. P.C. was not brought in court. The Counsel for the appellants made a serious grievance that non examination of the Magistrate has caused serious prejudice. Counsel for the State too admitted that P.W. 7 was examined by the Magistrate under section 164 Cr. P.C. and it was necessary for the prosecution to have produced the Magistrate for his examination. In other words the genuineness of the statement recorded under section 164 Cr. P.C. is not in dispute but at the same time the Counsel for the State Sri Lala Kailash Behari Prasad has very vehemently argued that in absence of non-examination of the Magistrate the evidence recorded under section 164 Cr. P.C. could not be put in evidence and it will be a wrong for the court to consider the statement for the purpose of accepting or rejecting the credibility of the witness examined by the Magistrate. 8. In our Opinion, the contention raised on behalf of the respondent is absolutely incorrect. If the genuineness of the document i.e. the statement recorded under section 164 Cr. 8. In our Opinion, the contention raised on behalf of the respondent is absolutely incorrect. If the genuineness of the document i.e. the statement recorded under section 164 Cr. P.C. is not in dispute, it can very well be placed in evidence and not necessary to prove it through the mouth of the Magistrate who recorded the same. It is true that the document is admissible subject to the limitations laid down under sections 145 and 157 of the Evidence Act and not beyond that, but it is incorrect to argue that the statement tendered in evidence in absence of the Magistrate is inadmissible. In the instant case since the statement recorded by the Magistrate forms part of the judicial proceedings and has been tendered in evidence, it can be very well looked into to find out if the witness made such statement before the Magistrate all oath. 9. As discussed above P.W. 7 is the only witness to testify the factum of abduction of Borhan by the three appellants from his house. She contradicted herself in her statement before the Magistrate in the sense that she did not state this fact before the Magistrate that the appellants came and took away Borhan Paswan from his house. Apart from it there are other infirmities in her statement which makes her evidence very much shaky. At one stage she gave out that appellants took away Borhan on Sunday meaning thereby on 28.10.1973. She further stated that it was a Sunday and Borhan got back in the evening, it falsifies the whole case. There can be no charge for abduction if an accused comes and takes away Borhan who again got back in the evening. To wriggle out the situation she changed her statement and added that Borhan was taken away by the accused persons on Tuesday. But that is not the case in the F.I.R. lodged by P.W. 5, who learnt about the abduction from P.W. 8, Baldeo Paswan, who in his turn had learnt about all these details from P.W. 7 and also from the son of one Lakhan of that village. Bereft of the evidence of P.W. 7 there remains nothing on the record to connect the appellants with the offence of committing the crime of murder. Counsel for the respondent argued that this is a case based on circumstantial evidence. 10. Bereft of the evidence of P.W. 7 there remains nothing on the record to connect the appellants with the offence of committing the crime of murder. Counsel for the respondent argued that this is a case based on circumstantial evidence. 10. It has been stated that the recovery of the dead body after abduction by these appellants lends inkling to the theory that these appellants got him killed or they themselves committed the murder. The learned advocate while arguing forgets that there are various infirmities in the statement of P.W. 7. If the statement of P.W. 7 is kept out of consideration on the ground that her statement is not credible for acceptance mere recovery of the dead body does not prove the charge. It has also been argued that according to P.W. 7 she and some others were detained by the appellants so that they may not depose about the case before the police, and for which there was a separate case regarding the confinement. A submission has been made that the detention of the witnesses by the accused is a circumstance proving the guilt of the commission of the offence. We do not consider it to be so. Circumstantial evidence must be a complete link of the whole chain and if there is any missing link or if it is subject to any other interpretation, no inference of guilt can be drawn against the appellants. 11. In the instant case it has further been argued and so by the Counsel for the appellants that there was a separate case against the appellants for confinement which case finally ended in acquittal in appeal and that circumstance alone cannot be used be a complete corroboration of the fact linking the appellants with this offence. In the circumstances stated above we do not find materials to up-hold the conviction and sentences of the appellants. 12. In the result this appeal succeeds. The appellants are acquitted of the charges. We are told that they are already on bail and if so, they will be discharged from the liability or their bail bond.