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2001 DIGILAW 170 (PAT)

Bali Hazam v. State Of Bihar

2001-02-22

A.K.SINHA, R.N.PRASAD

body2001
Judgment R.N.Prasad, J. 1. The sole appellant has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life vide judgment and order dated 24.5.1994 passed by 2nd Addl. Sessions Judge, Jamui in S.T. No. 408/91. 2. The prosecution case is that one Babulal Sah gave his fardbeyan on 1.8.1989 at 4.30 p.m. the Ex-Sarpanch Lakheshwar Yadav of village Jamha came at about 10 a.m. and disclosed that his son Ganesh Sah was lying dead. He along with his family members and the villagers went there and found his son lying dead. He also found injuries on his person. There was no house of any person where the dead- body of his son was found. He inquired about the occurrence but nothing came to light. Lakheshwar Yadav had gone to see his field and he found his son lying dead. He appre-hended that while his son was corning from Jasidih Railway Station the miscreants had killed him. 3. On the aforesaid fardbeyan a formal First Information Report was drawn. Investigation was taken up and after completion of investigation charge- sheet was submitted. On receipt of charge-sheet the Court took cognizance and committed the ease to the Court of Sessions for trial. The trial Court convicted the appellant as indicated above. 4. The defence of the appellant was that the informant had greedy eyes over the land of the appellant and only with a view to grab his land he had falsely been implicated in the case. 5. The prosecution in support of its case has examined 22 witnesses, out of whom PWs 1, 2, 5, 7, 10, 14, 15, 17, 18 and 19 have been tendered. PWs 3, 4 and 6 have been declared hostile. PW 8 claimed to have seen the deceased with the appellant. PW 9 claimed to have seen the deceased with two persons but he could not identify any one. PW 11 is the Deputy Superintendent of Jasidih Railway Station. PW 12 is Ticket Examiner. PW 13 is witness to the inquest and recovery of a ticket etc. from the pocket of the deceased. PW 16 is hear-say witness. PW 20 is the informant and he is also hear-say witness. PW 21 is the Sub-Inspector of Police who only submitted charge-sheet. PW 22 is advocate clerk who proved post-mortem report. 6. PW 13 is witness to the inquest and recovery of a ticket etc. from the pocket of the deceased. PW 16 is hear-say witness. PW 20 is the informant and he is also hear-say witness. PW 21 is the Sub-Inspector of Police who only submitted charge-sheet. PW 22 is advocate clerk who proved post-mortem report. 6. There is no eye-witness to the occurrence. The case is based on circumstantial evidence. PW 8 is the only witness who has come to depose that he had seen the deceased, the appellant and one more going on the date of occurrence. He stated in his evidence that he was done work in his field. He saw the deceased along with appellant and one Rinku Thakur going. On the next day he learnt that one person was lying dead. He went there and found Ganesh Sah lying dead on the ground. PW 9 deposed that he was working in the field of Mohan Lal. He saw three- persons going, out of whom he identified the deceased Ganesh Sah but he could not identify the rest two persons. PW 11 is the Deputy Superintendent of Jasidih Railway Station. He only stated about arrival of 7 Up train and departure of the said train from Jasidih Railway Station. PW 12 is Ticket Examiner. He stated that no ticket from Tikyapara to Jasidih was collected on the alleged date of occurrence. PW 13 is witness to the inquest and also recovery of ticket etc. from the pocket of the deceased. PW 16 is brother of the deceased. He deposed that the deceased, the appellant and one Rinku Thakur were living at Calcutta together. He went to village Manikpur, There he learnt from his Mama Mater Mandal and Bhuneshwar Manjhi that they had seen the deceased, the appellant and Rinku Thakur going. Therefore, it is evident that this witness is also hearsay witness. Bhuneshwar Manjhi has been examined as PW 9 but he did not claim to identify the appellant. Mater Mandal has not been examined in the case. Except as aforesaid, no other witness has been examined on the point of occurrence. From the discussion of evidence this much is obvious that only one person i.e. PW 8 has come forward to say that he had seen the deceased, the appellant and one Rinku thakur going on the date of occurrence. Except as aforesaid, no other witness has been examined on the point of occurrence. From the discussion of evidence this much is obvious that only one person i.e. PW 8 has come forward to say that he had seen the deceased, the appellant and one Rinku thakur going on the date of occurrence. Other witnesses did not claim that they had seen the appellant going with the deceased, rather their evidence is that they learnt from others. Thus maximum it can be said that the appellant was last, seen with the deceased that too only on the basis of evidence of PW 8. Last seen is not sufficient to hold that the appellant has committed the offence. In a case of circumstantial evidence the chain of circumstances must be complete and the evidence brought on the record must establish the guilt excluding all probable hypotheses of innocence. It has already been said that except as last seen there is no other evidence on the record. No witness has come to say that appellant was seen with the deceased near about the place where dead-body was found. 7. Thus, on consideration we find that the prosecution has failed to establish its case beyond all reasonable doubts. Accordingly, this appeal is allowed. The judgment and order of conviction and sentence are hereby set aside. The appellant, who is in jail, is directed to be released forthwith if not required in any other case.