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2002 DIGILAW 631 (PAT)

Anwar Mian v. State Of Bihar

2002-05-20

B.N.P.SINGH

body2002
Judgment B.N.P.Singh, J. 1. The appellants suffered conviction under section 364/34 of the Indian Penal Code (IPC) on being tried by the Assistant Sessions Judge, Bagaha, West Champaran, in Sessions Trial No. 426 of 1987 and were sentenced to suffer rigorous imprisonment for a term of seven years. 2. Salient features of the prosecution case, in short, was that on 27th February, 1985, the appellants allegedly came to the house of Kasidan Khatoon (P.W.1) and took her son ldris Mian in their company for participating in a procession of one Chandramohan Prasad, who was presumably contesting some election. Since ldris, it is alleged, did not return till late hours in the night, hectic searches were made by the family members and when inquiries were made from the appellants, they had been making evasive reply. It is alleged that they firstly stated that Idris had stayed at Ramnagar for witnessing a film and when he did not return to his house, inquiries were again made, when the appellants replied that Idris had gone to his maternal uncles house. When Idris did not return from there, the appellants, on inquiry, stated that Idris had gone to Punjab and even when there was no evidence of his going to Punjab, on further inquiry being made from the appellants, it is alleged that they stated that Idris would come on the occasion of Id with sweets and wearing apparels. However, on the occasion of Id also Idris did not return, and with these accusations, statement of the mother of ldris was recorded by the Police, pursuant to which investigation commenced, on conclusion of which, Police laid charge sheet before the Court. Defence of the appellants was denial of the entire allegations and in their defence, they examined two witnesses one of whom countered the allegations attributed to the appellants about they having taken ldris in their company for participating in a procession of Chandramohan Prasad. 3. The State examined altogether eight witnesses including mother and wife of Idris and also host of other witnesses including Police Officer. However, the trial court believing the prosecution witnesses and rejecting defence of the appellants, about their innocence, convicted the appellants under section 364 IPC and sentenced them to undergo rigorous imprisonment, as stated above. 4. 3. The State examined altogether eight witnesses including mother and wife of Idris and also host of other witnesses including Police Officer. However, the trial court believing the prosecution witnesses and rejecting defence of the appellants, about their innocence, convicted the appellants under section 364 IPC and sentenced them to undergo rigorous imprisonment, as stated above. 4. It is stated at Bar that it is a case in which the prosecution was launched belatedly not before lapse of six months by the mother of the victim. Reiterating the submission, it is urged that if she is to be given credence, she would state before the trial court that only the following day she had some suspicion about the conduct of the appellants and if that be so, it is most unlikely that she would not register a Police case against the appellants notwithstanding there being suspicion against them only the following day of the incident. Next, it is urged that P.Ws. 1 and 2 were family members of the victim but their evidences too were inconsistent about the appellants owing the debt of the victim. While commenting upon the credibility of P.Ws. 3 and 4, it is urged that though they projected themselves to be the independent witnesses, their evidences too did not inspire confidence. 5. Now coming to the witnesses, one may find P.W.1 narrating before the trial court that only after 5-6 days of the incident, she had narrated the incident to Mukhiya and it is urged that it was quite surprising that no action would be taken thereon. It is urged that though P.W.2 claimed to be an ocular witness, she would not state as to what means of transport was used by the appellants to take Idris in their company for participating in the procession of Chandramohan Prasad. P.W.3 would state in most clear terms that though he had gone for participating in the procession of Chandra Mohan Prasad not being called by any one, but on his own motion. P.W.4 would not claim to have accompanied the victim till last, as he would admit that he dropped in the midway. P.W.6 would state to have learnt about the incident from the mother of the victim. The Police Officer examined at trial did not make major contribution to the investigation to lead to some irresistible conclusion. P.W.4 would not claim to have accompanied the victim till last, as he would admit that he dropped in the midway. P.W.6 would state to have learnt about the incident from the mother of the victim. The Police Officer examined at trial did not make major contribution to the investigation to lead to some irresistible conclusion. Other witnesses were either tendered by the State or turned hostile whose evidence did not merit consideration. 6. While evaluating the testimony of the witnesses, this fact cannot be lost sight of that apart from the infirmity that has crept in the prosecution evidences, if the prosecution version was accepted to be true on face value about the appellants having taken Idris in their company, pursuant to which he was not seen alive, that by itself would not saddle the appellants with the allegation of abducting Idris with an intention to commit his murder. It is admitted that there is no evidence either about commission of murder of Idris by the appellants, pursuant to his abduction from his house or there be any evidence about disposal of the dead body by them to lead to some conclusion about their complicity. The appellants, in the facts and circumstances of the case, can be said to be last persons seen in the company of the victim, pursuant to which he was not seen alive. The State was required to lead positive evidence and credible evidence once it rasted on the circumstantial evidence, about unbroken chain in the sequence of evidence which would exclude the hypothesis of the innocence of the appellants, but that is not the case here and that apart, as has been rightly urged at Bar by the learned counsel for the appellants, that even the prosecution was launched belatedly by the State, not before the lapse of six months for which no plausible explanation was offered by the State. Though some sort of motive was sought to be introduced by the prosecution, which has been reiterated at Bar, but the prosecution allegation has not been consistent even on that score. It was not a case of direct evidence for which motive would not assume dominant role and would remain a matter of academic interest. Be that as it may, there was no such positive evidence on the record which would sustain the conviction of the appellants. 7. It was not a case of direct evidence for which motive would not assume dominant role and would remain a matter of academic interest. Be that as it may, there was no such positive evidence on the record which would sustain the conviction of the appellants. 7. Having taken into consideration the evidences placed on the record and the facts and circumstances of the case, I hold that the findings of the Court below are not based on meticulous appreciation of evidences and as such the findings recorded by the Court below are accordingly set aside and the appellants are acquitted of the charges.They are also discharged from the liability of the bail bonds. This appeal accordingly succeeds.