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2000 DIGILAW 543 (PAT)

Kaila Bhagat v. State Of Bihar

2000-04-05

A.K.PRASAD, P.K.DEB

body2000
Judgment 1. This appeal has been preferred against the judgment of conviction and sentence dated 10.1.1991 passed by the then 1st Additional Sessions Judge, Palamau, in Sessions Trial No. 22 of 1986, whereby and whereunder, the appellants have been convicted under Secs. 302/201/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life under Sections 302/34 of the Indian Penal Code and also to undergo one year rigorous imprisonment for the offence under Secs. 201/34 of the Indian Penal Code, and both the sentences are directed to run concurrently. 2. The allegation against the appellants for which they were charged and laced trial is for committing the murder of Ramdeo Bhagat and also for drawning the dead body into the well for screening themselves from legal punishment. 3. Balumath P.S. Case No. 52 of 1985 was registered at Balumath police station in the district of Palamau on the basis of a statement recorded in the police station itself given by P.W. 2 Chanko Devi who happens to be the wife of the deceased Ramdeo Bhagat being accompanied by P.W 5 Jageshwar Bhagat. Her case is that on 23.7.1985 she along with her husband mid returned home at village Lawagarha after selling goats at Bagra Bore Bazar at the sum of Rs. 340.00 . They returned home at about 4 p.m. and then she started preparation of night meal. In the meantime, the accused-appellant No. 2 (Budhram Bhagat) came to their house and extended invitation to the deceased Ramdeo Bhagat to the Puja ceremony being held at the hosue of his brother, accused-appellant No. 3 (Bini Bhagat). It was also told that after the Pujas, there was an arrangement of night meal there. Both Budhram Bhagat and the deceased Ramdeo Bhagat after taking khaini in the house had left for the Puja place. The informant after after preparing night meal got her children fed but still then when her husband did not return, she went to the hosue of accused-appellant No. 3 (Bini Bhagat) and there she found that her husband was sitting along with the accused-persons-appellants. When she requested him to come back to his home, he replied that he would come hack only after taking night meal at the Puja house. When she requested him to come back to his home, he replied that he would come hack only after taking night meal at the Puja house. Then, she left the place and took her meal in the hosue and spent the night at the hosue of accused-appellant No. 2 (Budhram Bhagat) along with his wife and others. It was also told that her minor son Upendra had also gone along with her husband to the Puja house. In the morning when she woke up, she went her house and found that her husband was not there. She asked the inmates and could learn that her husband did not return home in the night hours. She then enquired from the accused-appellants thrice as to what happened to her husband and they replied that after taking night meal in the Puja house, the deceased Ramdeo Bhagat had left for his own house. She started searching but she could not find out. On her thrice visit to the house of Bini Bhagat, she found chappals of her husband and torchlight, carried by him in the night hours were lying at the doorstep of the accused-appellant Bini Bhagat. She suspected some foul play. In the meantime, a village woman, Biraj (Drain, who happened to be a neighbour of the accused-appellant Bini Bhagat reported to her that she heard the sound of dhab-dhuh and mar-pit in the house of Budhram Bhagat and then she saw all the three accused-appellants being accompanied by the deceased Ramdeo Bhagat going out and after some time all the three accused-appellants had returned but not Ramdeo Bhagat. On query it was reported to her that Ramdeo Bhagat had left for his house. Suspicion in the mind of the informant became deeper and deeper by this time and then the daughter of the deceased stated that .she saw white dhoti floating in the nearby well. Then, the informant along with the Villagers searched the well and then the dead body of Ramdeo Bhagat was recovered from that. well. It was found that there were several injuries on his person. Giving all these details, the fardheyan was lodged by the informant Jahanko Devi (P.W. 2) on the basis of which the case was registered and then the investigation started. well. It was found that there were several injuries on his person. Giving all these details, the fardheyan was lodged by the informant Jahanko Devi (P.W. 2) on the basis of which the case was registered and then the investigation started. During the course of investigation, inquest was held over the dead body of deceased Ramdeo Bhagat and then the same was sent for autopsy through challan. Witnesses were examined and it appears that one of the co-accused had made confession before the Investigating agency. After completion of investigation, charge-sheet was submitted against all the three accused-appellants under Sections 302, 201 and 34 of the Indian Penal Code. On being committed to sessions, charges were also framed against all the three accused-appellants under the said sections of the Indian Penal Code tide order dated 17.12.1987 and when the charges were read over and explained to the accused-appellants, they pleaded not guilty. 4. For and on behalf of the prosecution, as many as ten witnesses have been examined out of whom P.W. 2 Jhanki Devi is a star-witness. Another witness Biraj Orain who had given information that she heard about the sound of dhabdhab at the hosue of accused-appellant Bini Bhagat and that the deceased was seen coming out in the company of all the three accused-appellants, she has not been examined in the case but her so-called statement recorded under Sec. 164 of the Code of Criminal Procedure (the Code) has been proved through P.W. 1.0 (Bandhan Bhagat). P.W. 8 P.R. Prasad is the Medical Officer who found several injuries on the person of the deceased in the following manner: (i) Ecchymosis on the left front to parietal region of the Scalp 3" x 2" with abraison. (ii) Ecchymosis 3" x 1 1/2" on the right parietal region of the scalp. (iii) Lacerated wound 2" x 1/3" x bone deep on the left fronto-parietal region of the scalp. (iv) Incised wound 1" x 1/4" x bone deep on the left occipital region of the scalp. (v) Diffused ecchymosis all over the interior and right lateral aspects of the neck from the upper 1/3rd of the front of chest with multiple abrasions over these areas. Enternal extensive contusions and lacerations with huge collections of blood clots were found under the skin. (vi) Incised wound 2" x 1/3" x muscle deep on the chain just below the mandibular margin. Enternal extensive contusions and lacerations with huge collections of blood clots were found under the skin. (vi) Incised wound 2" x 1/3" x muscle deep on the chain just below the mandibular margin. (vii) Two small lacerated wounds on the outer aspects of right leg. (viii) One small skin deep lacerations 3/4" × 1/4" on the outer aspect of the left leg. Internally, it was found that the outer lateral aspects of the neck, huge collections of blood clots were found under the skin in the soft tissues with lacerations and contusion of the muscles and blood and blood vessels of the upper 1/3rd of the front of chest and over the outer lateral aspect of the neck. On the front of the neck, the larynx and trachea were smashed with comminuted fractures of the bones and cartilage including the thyroid bone with contusions and lacerations of all soft tissues and vessels on and around the trachea and larynx. There were several enternal injuries also in the thorax cavity. According to the doctor, the cause of death was due to shock and haemorrhage, due to external injuries and its enternal effects and the death was homicidal one particularly due to injury No. (v). 5 The Investigating Officer in the case has not been examined and the other witnesses who have been examined in the case had only supported as to how the dead body was recovered from inside the well. 6. The defence has not adduced any evidence in the case. Their case, us is found from the trend of cross-examination and the statement under Sec. 313 of the Code that they had been falsely implicated only out of suspicion and nothing else. 7. On scrutiny of the evidence on record, the learned Sessions Judge held that although there is no direct eye-witness to the occurrence but the circumstances proved from the side of the prosecution are strong enough to finger towards the guilt of the accused-appellants and, as such, they had been held guilty of the charges framed against them and hence convicted and sentenced them accordingly, as mentioned above. 8. The appeal, as is found from the records, was filed by Md. Hatim. When the appeal came up for hearing before this Court two weeks back, then Senior Counsel of the same Sherista had taken adjournment and the case was put below the list. 8. The appeal, as is found from the records, was filed by Md. Hatim. When the appeal came up for hearing before this Court two weeks back, then Senior Counsel of the same Sherista had taken adjournment and the case was put below the list. Today again, when the case came up for hearing, neither the Senior Counsel appeared nor the Counsel who had field the appeal had appeared. In that way, there was no other alternative but to engage Mrs. Leela Sahay as Amicus Curiae for and on behalf of the appellants. The appeal is heard and Argued by Mrs. Leela Sahay, for and on behalf of the appellants and Mr. I.N. Gupta, appearing for and on behalf of the State-respondent. 9. On going through the impugned judgment and the materials on record, we find that the prosecution case has been solely based on the so-called circumstantial evidence of last seen. It was alleged that the deceased was invited by accused-appellant No. 2 (Budhram Bhagat) for Puja ceremony on the date of occurrence at the house of accused-appellant No. 3 (Bini Bhagat). There was Puja ceremony in that house on that night has not been denied and that the accused-appellants had remained in that house till the night meal was served has also not been denied. The only case of the prosecution is that after that the deceased was never seen alive. The informant was given a clue by one Biraj Orain who happened to be the next door neighbour of the accused-appellant Bini Bhagat but unfortunately, she had never been examined during the course of trial. Her statement recorded under Sec. 164 of the Code has been proved by producing before the Magistrate concerned but that statement has got no evidentiary value of its own as the deponent concerned has never been subjected to cross-examination. The said statement under Sec. 164 of the Code can be used for the purpose of corroboration and contradiction but such statement cannot be a substantive piece of evidence for the purpose of supporting the prosecution case. So such clue given to the informant by Biraj Orain could not be proved from the side of the prosecution. Then, it is left only one circumstance that the deceased was last seen alive in the hosue of the accused-appellant No. 3 (Bini Bhagat) in the company of the accused-appellants. 10. So such clue given to the informant by Biraj Orain could not be proved from the side of the prosecution. Then, it is left only one circumstance that the deceased was last seen alive in the hosue of the accused-appellant No. 3 (Bini Bhagat) in the company of the accused-appellants. 10. Definitely, this is a very strong circumstance fingering towards strong suspicion against the accused-appellants that they might have hand in disappearance of the deceased Ramdeo Bhagat or on the commission of murder but the suspicion cannot take the place of proof. If this circumstance of last seen is not supported by any other evidence incriminating the accused-appellants with the crime then the suspicion remains as suspicion alone and not a proof of guilt of the accused-appellants. It appears that there were circumstances available as the Chappals belonging to the deceased were said to be lying in the door-steps of one of the accused-appellants along with torchlight of the deceased, but it appears that those had never been seized nor being produced before the trial Court, so that circumstance has also not been proved. Further it appears that the well from where the dead body was recovered is very much near the house of the deceased and the informant and at a some distance from the house of the accused-appellants. As to how the dead body of the deceased was brought to the well or thrown there, there is no evidence to that effect. So from the circumstances as proved or admitted to be proved from the side of the prosecution, there does not remain a single hypothesis that the accused-appellant alone are responsible for homicidal death of the deceased Ramdeo Bhagat. There might be other hypothesis also. No plausible motive could be imposed on the accused-appellants causing the death of the deceased. 11. It appears that the deceased and the accused-appellant family were in good relations and they have visiting terms. On the night of occurrence also, the informant spent the night at the house of one of the accused-appellants. Although in a case of murder, the motive may not be very important but, in the case of circumstantial evidence, motive plays a vital role. In the present case, no such motive could be proved from the side of the prosecution. 12. Although in a case of murder, the motive may not be very important but, in the case of circumstantial evidence, motive plays a vital role. In the present case, no such motive could be proved from the side of the prosecution. 12. Thus, on independent scrutiny of the evidence on record, we come to the finding that except strong suspicion, the prosecution could not be able to bring book to any other substantive evidence to support the prosecution case for fingering the guilt of the accused-appellants alone with the charge of murder and an attempt to conceal the deadbody of the deceased Ramdeo Bhagat. Only suspicion could be proved from the. side of the prosecution regarding involvement of the accused-appellants with the alleged crime. 13. In the result, we hold that the accused-appellants are entitled to get benefit of doubt and hence the impugned judgment of conviction and sentence is hereby set aside and the accused-appellants are acquitted on benefit of doubts. Since the appellants are on bail, they are discharged from the liabilities of their bail-bonds.