Ram Babu Kumhar v. State Of Bihar — 1998 DIGILAW 837 (PAT)

Judgment 1. The appellant Ram Babu Kumhar whose age was assessed to be 23 years by the trial Court but according to the statement of the appellant he was aged 17 years, has been convicted under Sec. 302 I.P.C. and sentenced to life imprisonment. The charge against the appellant was that on 11th October, 1983, he kidnapped Dilip Kumar, a minor son of Ramashish in order to commit his murder and in fact the murder of the boy was by drowning him in the chest deep water of Ahar. The appellant was also charged under Sec. 201 I.P.C. for concealing the dead body of the deceased. 2. According to the prosecution the murder was committed in presence of Babloo Kumar (P.W. 10) aged only 4-5 years at the time of occurrence. This witness was produced in the Court but was unable to speak anything about the occurrence. The trial Judge has recorded that this body was unable to give evidence and so his evidence was not recorded, the conviction of the appellant was based on circumstantial evidence. The dead body of the deceased was recovered from inside the Ahar of village Morasiya, P.S. Jagdishpur, District-Bhojpur. The appellant, the deceased and the material witnesses are of the same village. According to the medical evidence the death was due to drowning. It is not established that this is a case of homocide. 3. The learned Additional Sessions Judge has relied on the following circumstances against the appellant in reaching to his conclusion that there was chain of circumstantial evidence against the appellant for recording the verdict of conviction (i) According to the evidence of the mother of the deceased (P.W. 6) her boy had gone out for playing at 8 a.m. and she went for search at about 11 a.m. but he was not found. She met Lalbabu and Prayag (P.Ws. 3 and 4) who told her that they had seen the boy sitting along with the appellant at Ahar. She went there but she did not find either her son or the appellant. Then she went to the house of the appellant where Babloo gave out to her that his uncle Rambabu had buried the dead body of the deceased into Ahar water. She went to the Choukidar and also search was made inside the Ahar but the dead body was recovered on the third day from the said Ahar. Then she went to the house of the appellant where Babloo gave out to her that his uncle Rambabu had buried the dead body of the deceased into Ahar water. She went to the Choukidar and also search was made inside the Ahar but the dead body was recovered on the third day from the said Ahar. The deceased was last seen with the appellant. 4. Lal Babu (P.W. 3) has stated in his evidence that on 11.10.83 at about 10 a.m. while he was returning from his boring he saw the accused, the deceased Dilip Kumar and the boy Bablu sitting on the Ahar and the deceased was fishing into Ahar water. Then he asked the deceased to go back to his house whereupon the deceased said that he would return with the appellant (ii) the mother of the deceased told that the deceased had drowned by the appellant. 5. The learned Additional Sessions Judge was mainly influenced by the fact that the dead body of the deceased was recovered from the Ahar water on the pointing out of the accused on 13.3.83 when he was brought to the said place by the I.O. The chain of evidence and circumstance of the evidence has been discussed by the learned Addl. Sessions Judge in para 10 of his judgment as follows- The next link in the chain of events, according to the prosecution, was that the dead body of the deceased was recovered from the Ahar water on the pointing out of the accused on 13.3.83 when he was brought to the said place by the I.O. This circumstance has been proved by the prosecution through the evidence of the I.O. as P.W. 12 and a number of witnesses in whose presence the dead body of the deceased was recovered on the pointing out of the accused. In this regard first of all the evidence of P.W. 12 is to be taken into account. His evidence is that the accused had stated before him that he would point out the place where the dead body was concealed and accordingly, he took the accused to village Morasiya and on his pointing out he went to the Ahar and the place from where the dead body of the deceased was recovered was pointed out by the accused in presence of a number of witnesses. According to P.W. 12 on the said pointing out by the accused the dead body of the deceased was taken out by P.W. 5 and the inquest report was prepared there. The evidence of P.W. 12 would further show that the dead body was found inside chest deep water of the Ahar beneath Behaya plant. This statement of the I.O. regarding the recovery of the dead body of the document on the pointing out of the accused is supported by a number of witnesses. P.W. 1 has stated that when accused was brought by the S.I. of police to the Ahar the accused pointed out the place where the dead body was found. This statement of P.W. 1 inspires confidence and there is no reason to doubt or dispute his testimony. Then P.W. 5 is the person who has taken out the dead body from Ahar water at the instance of the I.O. His statement is that he went deep into water and the dead body of the deceased Dilip Kumar was found tied in Behaya plant which he had taken out. The evidence of this witness also inspired confidence and there is no reason to doubt or dispute his testimony. Then we find the evidence of P.Ws. 2, 3, 4, 6, 7 on this point that the dead body of the deceased Dilip Kumar was taken out from the Ahar on the pointing out of the accused Ram Babu Kurnhar. The evidence of P.Ws. 7 and 8 also goes to show that inquest report was prepared at the site of Ahar. 6. The learned Sessions Judge says that there is over wholing evidence of the prosecution on the point that the dead body of the deceased was recovered on the pointing out of the accused Ram Babu Kumhar. 7. P.W. 1 Ravi Shanker Prasad has deposed that the accused was taken to the village by the Sub-Inspector. The appellant in presence of the witnesses pointed out that place where he concealed the dead body of the deceased. Ram Narain Sao taken out the dead body of the deceased Witnesses have stated that the appellant was brought In the village. The statement of this witness was recorded after two days from recovery of the dead body. It Is significant that F.I.R. was recorded at 6 p.m. on 12.10.83. 8. Ramayan Prasad (P.W. 2) is a teacher. Ram Narain Sao taken out the dead body of the deceased Witnesses have stated that the appellant was brought In the village. The statement of this witness was recorded after two days from recovery of the dead body. It Is significant that F.I.R. was recorded at 6 p.m. on 12.10.83. 8. Ramayan Prasad (P.W. 2) is a teacher. According to him on 12.10.83 he was informed by nephew Shivchandra Prasad (not examined). The witness came to this village and learnt from Lalbabu and Prayag Singh and Babloo that the appellant had drowned the deceased in the water. The motive was that Shinaj Devi (P.W. 6) had taken the loan from the appellant. The amount along with interest was returned to the appellant but he instigated for Rs. 50.00 and threatened her. He also says that the dead body was recovered at the instance of the appellant. No seizure was prepared by the officer incharge regarding the recovery of the dead body. The evidence of this witness was not recorded by the officer incharge. There were three another witnesses who have stated about the recovery of the dead body at the instance of the accused. P.W. 4 had also stated that the dead body was recovered at the instance of the appellant in presence of Sub-Inspector P.W. 5 (Ram Narayan Sah) stated about taken out the dead body from Ahar. There is no doubt that there is overwhelming evidence that the dead body was recovered at the instance of the appellant. 9. In our opinion the solitary circumstance is not sufficient to establish the charge of murder In absence of any evidence that it was a case of homocide. As held by the Supreme Court in Sharad Birchand Sarda V/s. State of Maharasthra -- , that the facts so established by the prosecution should be consistent only with the hypothesis of the guilty of the accused, that Is to say, they should not be explainable on any other hypothesis except that the accused is guilty. They should exclude every possible hypothesis except the one to be proved and there must be a chain of evidence so complete as not to leave may reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. They should exclude every possible hypothesis except the one to be proved and there must be a chain of evidence so complete as not to leave may reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. The evidence in the present case does not at all satisfy this tests. It cannot be ruled out the deceased might have died due to accidental drowning or for some reason. The entire case is based on the statement of Babloo that the appellant had drowned the deceased. 10. Sec. 28 of the Evidence Act lays down that no confession made by any person whilst the is uncustody of a police officer, unless it be made in the immediate presence of Magistrate shall be proved as against such person. There is not evidence that the appellant had made any confession statement before the police. According to Sec. 27 of the Evidence Act when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. So in any view of the matter merely discovery of the dead body without there being any statement does not lead in any where and cannot be said that there is a chain of circumstantial evidence against the appellant leading to reasonable a conclusion that the appellant had committed the murder of the deceased. As stated earlier the medical evidence does not indicate that this is a case of homocide. 11. In our opinion giving when full weight is given to the circumstance not on record of the prosecution, the evidence is not adequate for conviction of the appellant for charge of murder. It is a fit case in which the appellant should to given benefit of doubt. 12. In the result this appeal is allowed and the conviction and sentence passed against the appellant is set aside and he is acquitted. The appellant remained in custody for a considerable time and then he was released by this Court. He is discharged from the liability of the bail bond.