Akla Rajwar v. State Of Bihar — 1999 DIGILAW 64 (PAT)

Judgment G.S.Chaube and A.K.Prasad JJ. 1. This appeal is directed against the judgment and order of conviction and sentence passed by the District & Sessions Judge, Hazaribagh in S.T. No. 51 of 1988 whereunder the sole appellant Akla Rajwar has been convicted for commission of offence under Section 302 of the IPC and sentenced to undergo imprisonment for life. 2. The prosecution case as disclosed in the first information report (Ext. 3) and the evidence of witnesses is that the deceased Badri Ram of village Banji within Mandu P.S. in the district of Hazaribagh was having some pain in his legs and used to visit the clinic of one Dr. Chatturvedi at Ramgarh for his treatment. On 3.6.1987 in the afternoon at about 3.00 p.m. he left his home for going to the said Dr. Chatturvedi for treatment, but did not return home : As the deceased was in the habit of going to either village Karma where his daughter was married or Digwar where he was himself married, whenever he visited Ramgarh, the inmates of his house did not suspect anything foul. However, on 4.6.1987, one of his grand sons Umesh Ram (PW 2) was informed that his grand father had been murdered and his dead body was lying by the side of a cold storage near village Sewata at Belatand. He informed his uncle (PW 1) Chandranath Ram, first informant Narayan Ram (PW 5), another son of the deceased was also informed at the colliery where he works as a mining sirdar. All of them went to the place of occurrence to find the dead body of the deceased. Some persons including relatives of village Karma and Digwar v/ere present there already on being informed of the occurrence. An attempt was made to inform the police at Kuju police outpost during the same night, but due to absence of the officer incharge, no information could be lodged. When the Officer In-charge arrived at the outpost next morning, FIR was lodged with him by PW 5. The police officer who recorded fardbeyan of PW 5, namely, SI Basist Narayan Singh (PW 12) of Kuju police outpost went to the place of the occurrence, found the dead body lying there and therefore held inquest and prepared inquest report in presence of the witnesses. The police officer who recorded fardbeyan of PW 5, namely, SI Basist Narayan Singh (PW 12) of Kuju police outpost went to the place of the occurrence, found the dead body lying there and therefore held inquest and prepared inquest report in presence of the witnesses. The dead body was sent to Hospital at Hazaribagh for autopsy, and on such autopsy, it was found that the deceased had been strangulated to death. 3. In course of investigation, some witnesses surfaced to say that in the evening of 3.6.1987, the deceased had dropped at village Sewata by the side of the main road between Hazaribagh and Ranchi, purchased an egg from one Satya Narayan Prasad (PW 8) and he also purchased wine from a nearby liquor shop and consumed the egg and liquor there. Thereafter, on his request the rickshaw of the present appellant, who is resident of the same place, was arranged by those witnesses for taking the deceased to village Digwar where he had been married. The appellant left that place at about 5.30 or 6 in the evening on that very day taking the deceased on his rickshaw for going to Digwar. It was also suspected that on way to Digwar the deceased had been done to death hardly at a distance of about 1 km from the liquor shop, most probably for being relieved of his money which he was carrying with him. As the deceased had left that place on the rickshaw of the appellant, he was suspected to be the murderer, or one of the murderers. In course of investigation, complicity of another person named Suresh Rajwar of the same village had also come to light. Therefore, both the present appellant and Suresh Rajwar were charged under Section 302 read with Section 34 of the IPC for committing the murder of the deceased Badri Ram in furtherance of their common intention. 4. In course of trial as many as 16 , witnesses were examined by the prosecution, out of whom as many as six witnesses were tendered for cross-examination. The witnesses also included the first informant, the doctor who performed the autopsy (PW 7), Dr. A. Ganguli; and PW 12 Basist Narayan Singh, the Investigating Officer. 4. In course of trial as many as 16 , witnesses were examined by the prosecution, out of whom as many as six witnesses were tendered for cross-examination. The witnesses also included the first informant, the doctor who performed the autopsy (PW 7), Dr. A. Ganguli; and PW 12 Basist Narayan Singh, the Investigating Officer. As none of the said witnesses stated any-thing regarding the complicity of Suresh Rajwar, learned Sessions Judge, Hazaribagh found him not guilty and acquitted him of the charge of murder. However, the learned Sessions Judge came to the conclusion that the charge of murder has been established by prosecution beyond all reasonable doubt. He arrived at the conclusion that the appellant was guilty and convicted and sentenced him as indicated above. 5. Mrs. Sadhana Kumar, learned Counsel for the appellant, has, however, contended that there is no direct evidence to connect the appellant with the murder of the deceased. The evidence on which the appellant has been found guilty, is entirely of circumstantial nature, but the circumstances are not of such nature as to arrive at the only conclusion of the guilt of the appellant. The two witnesses who have stated in course of the trial that the deceased had left the liquor shop on the rickshaw of the appellant soon before being murdered, are not truthful. As a matter of fact, they appear to be afterthought. Therefore, the conviction of the appellant is fit to be set aside. 6. That the deceased Badri Ram of village Banji was found murdered inside the jungle situated at a distance of about one kilometre from village Sewata is not to be disputed, nor this fact has been disputed by the defence. PWs 1 and 5 are sons of the deceased and they have stated that when they were informed of the murder of their father, they went to the place of occurrence and found him lying dead with some external injuries on his person. PW 13 Deoki Ram of village Karma, who happens to be the brother of the son-in-law of the deceased, has also stated that on Thursday, he learnt at about 5.00 p.m. from his co-villager Mannu Mahato regarding the murder of the deceased. He went there alongwith some others and found the deceased lying dead there with external injuries on his person. He went there alongwith some others and found the deceased lying dead there with external injuries on his person. PW 14 Jay Nandan Prasad of village Digwar and son of the brother of the wife of the deceased has also stated that when he came to learn of the murder of the deceased, he went to the place of occurrence and found his dead body lying in the tand. PW 16 Ram Sewak Sah, Sarpanch of Sandi Gram Panchayat and resident of Sewata has also stated that on getting information regarding the presence of the dead body, he went there along with others and found the dead body. He has also stated that he came to learn from PW 15 Tirtha Saw that the dead body was that of a washerman of village Banji. At about the same time, a resident of village Digwar also came there and stated that the dead body was that of his uncle (Phupha). PW 15 Tirtha Saw of village Sewata had also stated that at about 8.00 in the morning of 4.6.1987, he was informed by some body of his village that the dead body was lying in the tand; he went there and identified the dead body as that of Badri Ram of village Banji where he is himself married. 7. In the evidence of the aforesaid witnesses, the complicity of the appellant, or for that matter of anybody, does not come to light. However, PW 8 Satya Narayan Pd and PW 11 Shiv Shankar Prasad, both of village Sewata, have stated that in the evening of 3.6.1987, the deceased had purchased an egg from PW 8 and wine from a country-made liquor shop situated there and consumed both of them. Thereafter, he requested the persons present there to arrange some conveyance for him to reach village Digwar because he was unable to move on foot. Consequently, the rickshaw pulled by the present appellant was arranged; thedeceased was got seated thereon and the appellant pulled the rickshaw with the deceased thereon in the direction of village Digwar. Since the place of occurrence lies between Sewata and Digwar by the side of foot-path or a kutcha road, it has been suspected, and reasonably so, that the deceased was probably murdered by the present appellant, if what PWs 8 and 11 have stated is found to be correct. Question arises whether they are truthful witnesses. Since the place of occurrence lies between Sewata and Digwar by the side of foot-path or a kutcha road, it has been suspected, and reasonably so, that the deceased was probably murdered by the present appellant, if what PWs 8 and 11 have stated is found to be correct. Question arises whether they are truthful witnesses. 8. PW 8 has stated that he sells eggs and gram by the side of the wine shop. The deceased went to him and purchased an egg. Thereafter, he went to the liquor shop and purchased liquor and consumed the same for about 15-20 minutes. It was thereafter that he made request for arranging conveyance to reach him at village Digwar where he had relations. He also disclosed that he was a resident of village Banji. The witnesses further stated that PWs 9 to 11 were collecting subscriptions from the wine-shop keeper. When they heard the deceased making such request, they brought the rickshaw pulled by the appellant and got him seated and sent them to Digwar. PW 11 has made practically the same statement in course of his evidence. In course of his evidence, PW 8 has stated that next day he learnt from his co-villager that an old man had been murdered inside Sewata basti, but did not go there. On the other hand, PW 11 has stated that a day or two after the deceased had left on the rickshaw of the appellant for Digwar, he learnt that the same old man whom they had sent on the rickshaw of the appellant, had been killed. From the evidence of PWs 1 and 5, it will appear that when they got information of the murder of the deceased, they went to village Sewata as well as to the place of the occurrence and thereafter. FIR was lodged at Kuju outpost in the morning on the day next thereafter, i.e., 5.6.1987. PW 8 says that he had come to know of the name of the deceased from his son Narayan Ram. PW 5 does not say when he came in contact with PW 8. At least, there is nothing to indicate that the first informant and PW 8 had interacted after lodging the first information report. PW 8 says that he had come to know of the name of the deceased from his son Narayan Ram. PW 5 does not say when he came in contact with PW 8. At least, there is nothing to indicate that the first informant and PW 8 had interacted after lodging the first information report. The evidence of PW 12 investigating officer, certainly, rules out this possibility in view of the fact that he says that after recording FIR, he went to the place of occurrence along with FIR and other witnesses and from there he went to village Sewata and recorded statement of PW 8. If the first informant or anybody had already come to know from PW 8, or for that matter from other witnesses including PW 11, that the deceased had left for village Digwar on the rickshaw of the appellant. This fact could have found place in the FIR itself lodged after about 36 hours of the occurrence. In this connection, the evidence of PW 15 Tirtha Sao is very significant. He is a resident of village Sewata itself. He came to know of the murder of the deceased in the forenoon of 4.6.1987 itself, went there and identified the dead body. Naturally, the whole of the village would have been agog with the news that the old man of a nearby village Banji had been murdered inside the jungle very near to village Sewata. PW 8 has stated specifically that the person who had left that place on the rickshaw of the appellant disclosed that he was a resident of village Banji and was going to Digwar. Therefore, had it been a fact that the deceased took liquor and egg and thereafter left Sewata on the rickshaw of the appellant and was killed soon thereafter, this fact would have been disclosed to the sons and other relatives of the deceased who had visited that place before lodging of the FIR. 9. The evidence of PW 12 shows that the deceased was found holding an empty bottle in his hand when the inquest was held. On the other hand, the evidence of PWs 8 and 11 is that the deceased had consumed liquor for 15 to 20 minutes and thereafter on his request the rickshaw of the appellant was arranged and thereon, he left that place for village Digwar. On the other hand, the evidence of PWs 8 and 11 is that the deceased had consumed liquor for 15 to 20 minutes and thereafter on his request the rickshaw of the appellant was arranged and thereon, he left that place for village Digwar. At least, none of them has stated that the deceased carried the bottle of the liquor as well. PW 8 has also stated that the deceased had consumed an egg at the time of taking liquor. From the evidence of the doctor and the circumstances available on the record, one can gather that the deceased was killed soon after leaving the liquor shop. At least, the proximity between the liquor shop and the place where the deceased was found dead leads to this inference. If the deceased had purchased an egg from the shop of PW 8, as he states, consumed the same before leaving that place for being killed soon thereafter, the egg in undigested or semi-digested form could have been found in the stomach of the deceased. PW 7 has stated that he simply found muco-fluid in the stomach of the deceased and not any undigested or semi-digested egg. The absence of egg in the stomach of the deceased in any form simply falsifies the version of PWs 8 and 11. Indeed, defence has not been able to elicit from these witnesses any motive, except village politics, for falsely deposing against the appellant. On that ground alone, the testimony of PWs 8 and 11 cannot be accepted as conclusive on the point they have deposed, especially in view of the discrepancies indicated above. Law is well settled that if the prosecution seeks to rely on evidence which is entirely circumstantial in nature for bringing home the guilt to the accused, the links in the chain of circumstances must be so inter-connected with each other that they lead to only one conclusion, i.e., of the guilt of the accused and are incom-patiable with the hypothesis of the innocence of the accused. Law is also settled that the evidence for establishing those circumstances must also be cogent, convincing and conclusive in nature. Law is also settled that the evidence for establishing those circumstances must also be cogent, convincing and conclusive in nature. On perusal of the evidence of PWs 8 and 11 as also the case diary available on the record of the trial Court, we find that the testimony of PWs 8 and 11 that the deceased had left the liquor shop at Sewata on the rickshaw of the present appellant for going to village Digwar does not inspire confidence for the reasons stated hereinabove. Since the circumstantial evidence relied on by the prosecution is not found to be cogent and convincing, the conviction based on such circumstantial evidence must necessarily be set aside. 10. In the result, we allow the appeal and set aside the conviction and sentence awarded against the appellant by the Sessions Judge, Hazaribagh. The appellant is acquitted of the charge and is directed to be set free forthwith, if not required in any other case.