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2002 DIGILAW 430 (PAT)

Bishwanath Kewat v. State Of Bihar

2002-04-03

B.N.P.SINGH, P.K.SINHA

body2002
Judgment B.N.P.Singh, J. 1. The prosecution was launched against the appellants and two others on behest of Sitaram Mistry (PW-7) with accusation that on 9th August. 1984, the appellants came to the house of Chhotan Mistry (deceased) and persuaded him to go to Ashok Dham but since the deceased was not possessed of sufficient money to undertake the journey, he expressed his inability. It was alleged that on the following day the appellants again visited house of the deceased paid Rs. 501- to meet expenses of journey and on persuasion, despite his reluctance, took him in their company. It was alleged that on 12th August, 1984, when the appellants returned to the village. Chhotan Mistry had not yet returned and when worried family members of the deceased made inquiries from them they had been making evasive reply which did not satisfy them. Pursuant to that on 13th August, 1984 when Dulo Kewat, who too had accompanied the deceased with his wife while going to Ashok Dhani came inquiries were made from him also and he too expressed his ignorance about where about of Chhotan Mistry. The worried family members made hectic searches for Chhotan Mistry but that did not yield salutary result. It was on 15th August, 1984 that Jagdish Mistry, brother-in-law of the deceased visited house of Dhaneshwar Mistry and finding Chhotan Mistry not there, made inquiries about him. As Chhotan Mistry had not yet returned to his house they approached mukhiya of the local gram panchayat who collected villagers and asked the appellants to accompany them to village Charokhara where the dead body was allegedly thrown in a. well. Though the appellants made commitment before the mukhiya to accompany him to village Charokhara on the following morning they were found absconding,. It was alleged that on 16th August 1984 the mukhiya in the company of the family members of the deceased and also other villagers rushed to village Charokhara where they found the Police making searches for the dead body in the well and it was alleged that in their presence the wearing apparels of the deceased and also the appellants were recovered kept in a gunny bag with boulders put therein, and with these accusation, ofter the police was set in motion investigation commenced. on conclusion of which the Police laid charge sheet against the appellants alone. 2. on conclusion of which the Police laid charge sheet against the appellants alone. 2. In the eventual trial that commenced, the State examined altogether eight witnesses including the informant Family members of the deceased, mukhiya of the concerned gram panchayat and also the Investigating Officer. The defence of the appellants before the trial, Court and also this Court was plain denial of entire allegations and they ascribed their false implication at the instance of Rameshwar Prasad Yadav, who happened to be mukhiya of concerned gram panchayat and was inimical to them, and the trial Court on evaluation of testimony of witnesses placed on the record relied on certain piece of evidences and rendered finding of guilt under Secs. 302/34 and also under Sec. 364 of the Indian Penal Code (IPC) and sentenced the appellants to undergo life imprisonment and also rigorous imprisonment for ten years on these count, respectively. The trial Court also recorded verdict of guilt against the appellants under Sec. 202, IPC and sentenced them to suffer rigorous imprisonment for a term of five years. 3. The findings recorded by the trial Court are ought to be assailed by the learned counsel for the appellants on various premises and it is sought to be urged that taking the prosecution case to be true on its face value barring the evidence about the deceased leaving his house in the company of appellants and appellants. having been seen in the company of the deceased lastly at Kandy Bus Stand by Jagdish Mistry there was no evidence of positive nature to lead to conclusion that none else but the appellants were the authors of episode of killing of Chhotan Mistry. It is urged that though the prosecution had brought on the record, alleged recovery of wearing apparels of the appellants and also the deceased from a well of Murli Paswan of village Charokhara, that isolated evidence would not constitute legal evidence to find the appellants guilty for killing of the deceased and, in quick succession, it is urged that though the court below itself put a question as to how the wearing apparels of the appellants too came to be found that the deceased, without any rational approach, rushed to erroneous conclusion, finding the appellants guilty for death of Chhotan Mistry. Non-holding of test identification parade of the wearing apparel of the deceased and that of the appellants, was also taken to be a ground to assail the finding recorded by the court below. Contentions raised at Bar on behalf of the appellants were resisted by the learned counsel for the State and also informant and it is sought to be urged that the State had laid positive evidence which would manifestly lead only to conclusion, that it were the appellants who persuaded the deceased to take him in their company pursuant to which he was not seen alive and that would lead to irresistible conclusion about none else but the appellants above to be guilty. Recovery of wearing apparels of the appellants and also the deceased is also suggested to be link in the chain of evidences to suggest the guilt of the appellants. The allegation attributed to appellant Bishwanath Kewat about he having confessed guilt for killing Chhotan Mistry on account of theft having been committed by the latter was also suggested to be additional evidence. 4. Undisputed fact of the case are that ofter the appellants took the deceased in their company on lath August, 1984, there was no trace of him and the dead body of Chhotan Mistry had not yet been recovered. Though Jagdish Mistry (PW-4) would allege about rumour having been floated about dead body having been thrown in a well of village Charokhara. No witness would Claim about any dead body having been recovered from the well. The persuasion made by the appellants for taking Chhotan Mistry in their company, recovery of Yearing apparels of the deceased and also the appellants from the well, the well stinking, there being no trace of Chhotan Mistry, and Bishwanath Kewat making extra judicial confession for killing the deceased, for theft committed by him, were considered to adverse evidences by the trial Court for recording verdict of guilt against the appellants. 5. Now, adverting to the evidences placed on the record, those who were the witnesses about the alleged persuasion "made by the appellants to take Chhotan Mistry in their company were Dhaneshwar Mistry (PW -6) and Sitaram Mistry (PW - 7); who happened to be father and brother, respectively of the deceased. Their evidences were confined to the fact that the appellants took the deceased in their company on persuasion made by them. Their evidences were confined to the fact that the appellants took the deceased in their company on persuasion made by them. One may find Jagdish Mistry (PW -4) narrating before the Court that on 10th of August, 1984 while he had been to a tea shop, he noticed Chhotan Mistry in a mini bus in which the appellants too were noticed by him. Barring these pieces of evidences, no positive evidence was led by the State to suggest the appellants to be in the company of Chhotan Mistry thereofter. Though other piece of evidence placed on the record was that of recovery of wearing apparels of the deceased and the appellants and on this score, there was evidence of Rameshwar Prasad Yadav (PW- 2), Jagdish Mistry (PW-4); Dhaneshwar Mistry (PW -6) and Sitaram Mistry (PW -7). Though they would make coherent narralions before the Court about the recovery of wearing apparels of the deceased from the well, which were kept in the gunny bag alongwith boulders, and were also identified by them to be wearing apparels of the deceased and the appellants. it is admitted that no Test Identification Parade of the wearing apparels was ever held by the State. Even Jagdish Mistry (PW-4) who hails from a different village would claim identification of wearing apparels of even the appellants which does not inspire confidence. Though one piece of skin of foot was shown to have been recovered from the well there was no evidence to show its proximity with that of the deceased. Prosecution evidences about where about of Chhotan Mistry, after he left his house, are nor coherent. R.P. Yadav (PW-2) stated that Dhulo Kewat on inquiry stated that appellants and deceased had stayed at Lakhisarai Dhulo Kewat would not state about their stay at Lakhisarai. Sarjug Kewat would state that after they left his company went to Charokhara. PW 6 would state that appellants stated that deceased had stayed at Lakhisarai. 6. Grievance of the appellants was also that those who were examined by the State were only interested and partisan witnesses entirely to the exclusion of those who could have been independent witnesses. Our attention on this score had been drawn to the evidence of Jeetan Kewat (PW-l), Dewu Mahto (PW-3), and Ishar Paswan (PW5). 6. Grievance of the appellants was also that those who were examined by the State were only interested and partisan witnesses entirely to the exclusion of those who could have been independent witnesses. Our attention on this score had been drawn to the evidence of Jeetan Kewat (PW-l), Dewu Mahto (PW-3), and Ishar Paswan (PW5). Jeetan Kewat (PW-l) had turned volite face to the State expressing all ignorance about the incident while the evidence of Dewu (PW-3) was quite cryptic about he having seen something in the well. Ishar Paswan (PW-5) happens to be none else but the chowkidar but instead of permitting him to say something about the incident, he was tendered by the State. Even reliance was also sought to be placed on the extra judicial confession made by Bishwanath Kewat before Kanhai Mistry for having killed the deceased on account of theft having been committed by him except bald narrations made by Rameshwar Prasad Yadav (PW-2), neither there was corroboration from any quarter nor Kanhai Mistry was ever examined at trial. Though one redeeming feature of the prosecution case was that along with wearing apparel of the deceased wearing apparels of the appellants too were shown to have been recovered from the well, all this is shrouded in mystery as to how wearing apparels of the appellants came to be found in the well as the appellants, putting their wearing apparels with that of the deceased, were not expected to expose themselves. The alleged abscission of the appellants from the village in the night of 15th August 1984, when they were asked by Mukhiya to accompany him to village Charokhara was not an incriminating evidence which alone could saddle the appellants with the guilt. The defence of the appellants was that the deceased had criminal antecedent, and it was not unlikely that he might have met tragic end on some other count and to fortify defence version our attention has been drawn to evidence of Mukhiya (PW-2) who made tacit admission about criminal antecedent of the deceased. Where direct evidences, were lacking circumstantial evidences may deserve credence but before they are acted upon following guidelines. consistently laid down by Courts in catena of decisions, must be followed. a) Circumstances should be firmly established. b) Circumstances established must unerringly point to the inference of the guilt of accused. Where direct evidences, were lacking circumstantial evidences may deserve credence but before they are acted upon following guidelines. consistently laid down by Courts in catena of decisions, must be followed. a) Circumstances should be firmly established. b) Circumstances established must unerringly point to the inference of the guilt of accused. c) The circumstances established must be wholly incompatible with the inference of innocence of the accused. d) The circumstances should be incompatible of being explained on any other hypothesis excepting that of guilt of the accused. 7. Having bestowed our anxious and deepest consideration to festimony" of the witnesses also the circumstance we are constrained to find that the evidence of such positive nature with unbroken chain has not been placed on the record which could be inconsistent with the hypothesis of the innocence of the appellants and on these premises we find that the findings recorded by the trial Court could not be sustained and hence finding of conviction and also the sentence are set aside and the appellants are acquitted of the charges. They also stand discharged from the liability of the bail bonds. This appeal accordingly succeeds.