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2003 DIGILAW 159 (PAT)

Jagdish Harijan v. State of Bihar

2003-02-07

ANIL KUMAR SINHA, BAL KRISHNA JHA

body2003
JUDGMENT A.K. SINHA, J. Both these appeals were filed by the same appellant and were heard together and being disposed of by this judgment. 2. The sale appellant, namely, Jagdish Harijan has been convicted under section 302/ 201 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life under section 302 of the Indian Penal Code. No separate sentence has been awarded to him under section 201 of the Indian Penal Code. 3. The prosecution as disclosed in the fardbayan of the informant which was recorded on 16.3.95 as 1.00 p.m. is that on 8.3.95, the informant's son Shams Tamrez, aged about 10 years left his house at about 4.00 P.M. after stealing a sum of Rs.650/-. The informant searched for his son in the nearby villages He could not find any trace of him. He wanted till the next day but his son did not return back home, so he got suspicious and went to search him in the hotel and also went to Purnia Bus Stand but could not find him. Thereafter, on 13.3.95 the informant was going to Amour in search of his son and when he was crossing through village Pahariya, he learnt from the villagers that the appellant was seen going with his son on bicycle and he reached his son at the house of one Sabut Harijan of village Pahariya. The informant went to the house of Sabu Harijan who disclosed to him that a day before i.e. on 12.3.95 the appellant had brought a boy aged about 10 years and asked him to keep the boy for the night and disclosed that he is a Harijan boy, so, he kept the boy at his house and his wife served meal to him but that boy refused to take meal saying that he is Muslim and will not take meal in the house of "Hari". His wife then offered him Bhunja which he consumed. But at the same time, she entertained doubts that the appellant had disclosed to them that the boy belongs to "Hari" community but he is Mohammedan. On the following morning, the appellant came and took away the boy. The informant returned back to village Peer Manoo on Monday (13.3.95) itself and enquired from the appellant the whereabouts of his son on which the appellant became nervous and denied that he had taken away his son. On the following morning, the appellant came and took away the boy. The informant returned back to village Peer Manoo on Monday (13.3.95) itself and enquired from the appellant the whereabouts of his son on which the appellant became nervous and denied that he had taken away his son. The informant threatened him to file case and entered in his house but when he came out of the house he found that the appellant had fled away with his cycle towards Rauta. The informant chased the appellant and suspected that the appellant might have gone to village Pahariya, so, he went to village Pahariya and found that the appellant was altercating with the wife of Sabu Lal as to why she disclosed that he had brought the informant's son and kept at her place to which the wife of Sabu Lal replied that she stated the truth. The informant again requested the appellant with folded hands to return back his son on which the appellant agreed to return back his son and fled away from there. The informant came to Rauta Haat searching the appellant and went to Kabristan situated at the outskirts of the village where he met few girls tending she-goats who were talking amongst themselves that the dead body of a small boy is being eaten up by animals at the bank of river Das. The informant went to the bank of river Das and found that both the legs of his body was bent towards front and the dead body was of his son. The informant also noticed a Tabiz in the neck of his son and clearly identified his dead body. The informant started crying and many villagers assembled at that place and identified the dead body of the informant's son. The informant has alleged that his son was killed in between Monday to Wednesday last by the appellant, who buried the dead body of his son in the sand in order to screen the offence committed by him. On the basis of the fardbayan, a case, under section 302/201 of the Indian Penal Code was registered against the appellant on 16.3.95 and after completing the investigation chargesheet was submitted against the appellant under the aforesaid counts. On the basis of the fardbayan, a case, under section 302/201 of the Indian Penal Code was registered against the appellant on 16.3.95 and after completing the investigation chargesheet was submitted against the appellant under the aforesaid counts. The case was committed to the Court of Sessions and finally disposed of by the 3rd Additional Sessions Judge, Purnia, who passed the impugned judgment of conviction and sentence. 4. In order to prove the charges the prosecution examined as many as thirteen witnesses and the defence also examined two witnesses. The case of the defence appearing from the suggestion given to the witnesses is that the appellant has been falsely implicated in the case because the informant wanted to oust him from the village. 5. P. W. 9 Haroon Rashid has been tendered for cross - examination, whereas, P.W. 13 Ram Prasad Sah is a formal witness who has proved the inquest report (Exhibit-B) and there is nothing worth comment in their cross - examination. 6. P.W. 10 Dr. S. N. O. Nazar, who conducted autopsy on the dead body of the deceased on 17.3.95 found ,the following ante mortem injuries on the per ,on of the deceased, who was identified by the informant "I. External appearence - Thin built-semi decomposed. Black hair, Lower part of the abdomen empty. II. Lower half of the body was also semi decomposed and eaten by rodents and animals except right thigh, leg and perinium. III. Rest of the body contains mud and sand and moths. IV. Anterior abdominal wall all thorasic and abdominal viscera absent. V. Head, neck and face semi decomposed. VI. A faint legature mark around neck visible which on dissection showed echymosis and glistering below it. 7. In the opinion of the doctor, death was caused due to asphyxia caused by strangulation. P.W. 10 has proved the post mortem report (Exhibit -3). The time elapsed since death from the time of his examination was about one week. P.W. 10 has admitted in his cross - examination that he did not state that the tongue was eaten away and in strangulation external injury mayor may not occur. He has further stated that he had mentioned the time elapsed since death on the basis of decomposition of the dead body. 8. P.W. 10 has admitted in his cross - examination that he did not state that the tongue was eaten away and in strangulation external injury mayor may not occur. He has further stated that he had mentioned the time elapsed since death on the basis of decomposition of the dead body. 8. It may be stated at the outset that there is no eye witness to the alleged occurrence and the appellant has been convicted on the basis of the circumstantial evidence because the deceased was seen last in the company of the appellant arid the appellant is alleged to have made extra judicial confession about his guilt. The law is well settled by catena of decisions that in a case based on circumstantial evidence the court must be certain that the circumstantial evidence is of such a character as is consistent only with the guilt of thee accused. The circumstances relied upon should be of conclusive character and should exclude every hypothesis other than the guilt of the accused. In other words there must be chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In cases where there are possibilities of two inferences based upon circumstantial evidence, conviction can not be safely based on such circumstantial evidence. 9. First of all, I will deal with the evidence of P.W. 4 Md. Juber Alam, who is the informant of the case. He has deposed that his son became traceless on 8.3.95 from the house and he took away a sum of Rs.650/with him. He searched for three days meaning thereby till 10th of March, 95. On 4th day i.e. 12.3.95, he was informed by the villagers of Pahariya that his son was seen going with the appellant, who took him to the house of Sabulal Harijan. So, P.W. 4 went to the house of Sabulal Harijan and learnt from him as well as other members of his family that the appellant had kept his son at his house saying that he will take him to Punjab. The informant went to the house of the appellant and confronted him that he had gone with his son to the house of Sabulal Harijan to which he denied but became nervous and wanted to take him to village Pahariya but somehow the appellant fled away on the cycle. The informant went to the house of the appellant and confronted him that he had gone with his son to the house of Sabulal Harijan to which he denied but became nervous and wanted to take him to village Pahariya but somehow the appellant fled away on the cycle. So, the informant went to village Pahariya and saw that the appellant was quarreling with Sabulal Harijan and the appellant also agreed to return the son of the appellant but fled away. All these happenings took place on 12th of March, 95. P. W. 4 has then stated that on Monday (13.3.95) he searched for the appellant and went to his house and also went to village Rauta, which is the Sasural of the appellant but did not find him there. After fourteen days the dead body of his son was detected at the bank of Das river which is situated near village Rauta. The informant claimed to identify the deed body of his son by his face as also by Tabiz and clothes worn by him. Thereafter, he gave information to the police and gave his fardbayan (Exhibit -2). The statement made by P.W. 4 that the dead body of his son was recovered after fourteen days gives a fatal blow to the prosecution story because, admittedly, the deceased left his house on 8.3.95 and the fardbayan was recoded on 16.3.95 after the recovery of the dead body. So, by no stretch of imagination the dead body could be recovered after fourteen days either from the date of missing of the deceased from his house or after 13.3.95, when the informant learnt that his son was seen in the company of the appellant. So, by no stretch of imagination the dead body could be recovered after fourteen days either from the date of missing of the deceased from his house or after 13.3.95, when the informant learnt that his son was seen in the company of the appellant. As per the fardbayan, on 13.3.95 the informant learnt about the fact that the appellant was seen going with his son who had been kept at the house of Sabulal Harijan and on the same day the appellant fled away on the cycle of the informant and he chased him and in course of chase went to village Pahariya where Sabulal Harijan also stated that the appellant had brought his son and kept him in his house in the night and the appellant also agreed to return back his son but absconded, whereupon, the appellant went for his search and reached near Kabristan where he learnt from the girls tending cattle that a dead body is being eaten by the animals near the bank of Das river. So, he went there and detected the dead body of his son. All these happening according to the fardbayan, took place on 13,.3.95 but no information was lodged at the police station for three days and for the first time the fardbayan was lodged by the informant on 16.3.95. This inordinate delay in lodging the F.I.R. without any explanation, whatsoever, renders the prosecution story highly doubtful and the possibility can not be ruled out that the appellant was implicated after due deliberations and a story was concocted for that purpose. It is this reason that such a glaring contradiction has appeared in the evidence of the informant, who made fantastic and unimaginable statement by deposing that the dead body of his son was recovered after fourteen days which means that his son became traceless on 2nd of March. 10. P.W. 12 Md. Masooq Ahmad is the I.O. of the case who has deposed that on 13.3.95 he was posted at Rauta P.S. and he learnt that a dead body is lying near the shore of Das river so, he went there and found the dead body buried under the sand. So, he recovered the dead body which was identified by his father and other relatives and he prepared the inquest report (Exhibit-B). So, he recovered the dead body which was identified by his father and other relatives and he prepared the inquest report (Exhibit-B). The I.O. returned back to the police station where fardbayan (Exhibit -4) of the informant was recorded, on the basis of which F.I.R. (Exhibit- 5) was lodged and the dead body was sent to Purnia for post mortem examination. He further stated that he arrested the appellant, who confessed that he had taken a sum of Rs.400/- from the deceased out of which he spent Rs.200/- and a sum of Rs.200/- has been kept by him in the house' and on being pointed out by him a sum of Rs.200/- was recovered from his house and a seizure list (Exhibit-6) was prepared. Needless to say that such confessional statement made before the police has got no evidentiary value and there is no iota of evidence which may show that the sum of Rs.200/- which was recovered from the house of the appellant were actually those notes which belonged to the informant or had been taken away by his son. The notes were not produced in court. The I.O. has further stated that the informant had stated before him that on 10.3.95 he learnt near village Pahariya that two days before the appellant was seen going with his son on cycle towards Rauta and had kept him in the house of Sabulal Harijan and on the same day he went to the house of Sabulal Harijan, who accepted that one day before on Sunday the appellant had brought his son to his house. Incidently, it may be pointed out that 10.3.95 was Friday, so, the statement of Lakho Devi that the deceased was brought to his house on Sunday i.e. 12.3.95 became improbable, inasmuch as the I.O. has stated that on 10.3.95 itself the informant had gone to the house of Sabulal Harijan to make enquiry about his son where he learnt that the appellant had brought his son in the evening at 4.30 P.M. and the appellant took away the deceased, son of the appellant (sic-informant) on Monday morning which fall on 13.3.95. The statement made by the I.O. makes the prosecution story all the more doubtful and improbable because according to the fardbayan informant had gone to the house of Sabulal Harijan on 13.3.95 but the informant made statement before the I.O. that he had gone to his house on 10.3.95. 11. It appears from the fardbayan of the informant that the dead body was detected on 13.3.95 and the post mortem examination was held on 17.3.95. Fardbayan was recorded on 16.3.95. The evidence of P.W 10, who conducted the post mortem examination on the dead body of the deceased goes to show that the time elapsed since death was about a week which means that the deceased might have died on 10.3.95 but the fardbayan goes to show that the appellant had kept the deceased in the house of P.W 6 Lakho Devi and P.W. 11 Sabulal Harijan on Sunday i.e. 12.3.95, so, the deceased was alive till 12.3.95 and according to the informant death of the deceased took place in between Monday to Wednesday i.e. 13.3.95 to 15.3.95 so, the date of death as stated in the fardbayan and stated by the witnesses stands contradicted by the doctor, who was of the view that the death of the deceased took place a week before i.e. 10.3.95. This is yet another serious lacunae which the posecution failed to explain. 12. PW 6 Lakho Devi in whose house the deceased was kept for a night has stated that Jagdish had brought a boy aged 10 years and kept him in her house for the night and took him away on the following day. She further stated that Md. Zubair came after 4-5 days. According to the fardbayan, the informant had gone to her house on 13.3.95, so, the appellant must have kept the deceased in the house of PW 6 on 8.3.95 or 9.3.95 but in her cross - examination P.W. 6 has further made it clear that Jagdish had brought the boy perhaps on Wednesday which corresponds to 8.3.95. The evidence of P.W 6 has been contradicted by none else than the informant, who has clearly stated that he had gone to the house of P.W. 6 and P.W 11 on Monday i.e. 13.3.95 and learnt that the appellant had brought his son on Sunday i.e. 12.3.95. 13. The evidence of P.W 6 has been contradicted by none else than the informant, who has clearly stated that he had gone to the house of P.W. 6 and P.W 11 on Monday i.e. 13.3.95 and learnt that the appellant had brought his son on Sunday i.e. 12.3.95. 13. The evidence of P.W 11 goes to show that he was not present when Jagdish had kept the deceased in his house and he learnt from his wife that the appellant had brought the deceased boy and kept him in the house saying that he will take the boy to Punjab and on the following day he took away the boy. He further stated that after 3-4 days informant came to his house in search of his son and he disclosed everything to him and he went away and after 3-4 days he learnt about the death of the deceased boy. As such, it would appear from the evidence of P.W. 11 that the deceased boy was kept in his house on or about 8th or 9th, March, 95, which is contradictory to the evidence of informant and the case as made out in the fardbayan. 14. P.W. 1 Md. Habibul Rahman is a hear say witness who has stated that the informant had disclosed to him after two days from the date of missing of the boy that Jagdish had kept his son at village Pahariya. It is admitted case of the prosecution that the informant's son was missing from 8.3.95. So, according to P.W. 1 he was informed on 10.3.95 that the appellant kept the deceased boy at village Pahariya but the fardbayan shows that he came to know about this fact for the first time on 13.3.95. P.W. 1 has then stated that a Panchayati had also taken place in presence of Jagdish and he was one of the Panches and the appellant had promised to return back the son of the informant in that Panchayati. I find that there is no whisper in the fardbayan that any such Panchayati had taken place and the appellant confessed about kidnapping of the informant's son and had promised to return him back. It would, therefore, appear that the story of Panchayati has been developed in course of evidence. I find that there is no whisper in the fardbayan that any such Panchayati had taken place and the appellant confessed about kidnapping of the informant's son and had promised to return him back. It would, therefore, appear that the story of Panchayati has been developed in course of evidence. In his cross- examination P.W. 1 has contradicted his own statement by stating that he got the information regarding the missing of the informant's son on 8.3.95 itself but in his examination - in - chief he stated that he got information after two days and he further contradicts on this point by stating that the informant had told him on Monday i.e. 13.3.95 that the appellant had kept his son at village Pahariya. Therefore, the contradictory statement made by P.W.1 on material point shows that he is not a trustworthy witness. 15. The evidence of P.W.2 Md. Islam also suffers with contradiction when he says that Gopal Harijan had disclosed to him that the appellant had brought the boy on Monday i.e. on 13.3.95 which is against the case of the prosecution and contradictory to the statement made by PWs.4, 6 and 11. 16. P.W. 3 Hafiz has been examined to say that he saw the appellant going with the informant's son on cycle but he has not disclosed that when he had seen them. He appears to be a hearsay witness as he learnt from P.W. 4 and 7 that they had gone to the house of Subalal Harijan, who disclosed that a day before the appellant had kept the boy at his house. In cross - examination, he has stated that three days before the detection of the dead body he had seen Jagdish with Tamrez going on cycle which means that he had seen them on 13.3.95 and he disclosed about that fact to the informant on 14.3.95. So, his evidence is also not consistent with the prosecution story and is in conflict with the medical evidence as discussed above. 17. P.W. 5 Chandrawati Devi has been examined to say that Jagdish had brought a boy and kept in her house and on the following day he took away that boy and after 4-5 days the informant came to her house to whom she disclosed the above facts and after 89 days the dead body was recovered. 17. P.W. 5 Chandrawati Devi has been examined to say that Jagdish had brought a boy and kept in her house and on the following day he took away that boy and after 4-5 days the informant came to her house to whom she disclosed the above facts and after 89 days the dead body was recovered. She has clearly stated that Jagdish had brought the boy on Wednesday i.e. 8.3.95 but the evidence of other witnesses would go to show that Jagdish had bought the boy to the common house of P.W. 5,6, and 11 on 12.3.95 which happen to be Sunday. Therefore, the evidence of this witness also does not inspire confidence to believe. 18. P.W.7 Jabir, who happens to be the own uncle of the deceased, has stated that in course of search he met Hafiz (P.W.3) and learnt from him that the appellant was seen going with the deceased boy on cycle towards village Pahariya and learnt that Jagdish had kept the boy in the house of Sabulal Harijan for a night (sic-illegible) him away on the following day. So, they went to the house of the appellant where a Panchayati took place and the parents of the appellant confessed that the appellant, who brought his son will return him back. His evidence on the point of Panchayati is not believable because there is no case of the prosecution that the parents of the appellant had made any promise in any Panchayati. In cross - examination, P.W.7 has admitted that the Panchayati took place seven days before the detection of the dead body which means that the Panchayati took place on 9.3.95, which is absurd. 19. The evidence of P.W. 8 Gopal Harijan is similar to the evidence of P.W. 6 Sabulal Harijan. He has also admitted in his cross examination that the appellant had brought the boy on Wednesday i.e. 8.3.95 and after 34 days the father of boy came to his house and made enquiry. So, the evidence of this witness suffers with same contradiction and inconsistency as that of P.W. 5, 6 and 11. 20. The appellant was examined under section 313 Cr. P.C. and he emphatically denied that his house was searched and a sum of Rs.200/- was recovered from his house and that he confessed about his guilt. So, the evidence of this witness suffers with same contradiction and inconsistency as that of P.W. 5, 6 and 11. 20. The appellant was examined under section 313 Cr. P.C. and he emphatically denied that his house was searched and a sum of Rs.200/- was recovered from his house and that he confessed about his guilt. He further stated that he is innocent and has been falsely implicated because the informant wants to grab his land. It has come in the evidence that village Peer Majnoo is inhabited by muslim community and only two houses of Hindus are there including the house of the appellant. Suggestion has been given to the witnesses that the house o the appellant has been grabbed and he has been ousted from the village which, of course, has been denied. 21. From the above analysis of the evidence it would appear that there is no cogent evidence regarding the extra judicial confession made by the appellant and such story has been developed for the first time during the evidence and, that too, does not inspire confidence to believe in absence of material particulars since witnesses have not stated that on which date, and time and place Panchayati took place nor the witnesses stated about the number of persons Including their names who attended Panchayati. As pointed out above, the parents of the appellant are said to have made confession about the guilt of their son and glaring contradiction has been found in the statement of the witnesses on the point of Panchayati and the alleged extra judicial confession made by the appellant. It would further transpire that the witnesses have made innumerable contradictory statements on material points which render their evidence unbelievable and cuts at the very root of the prosecution case. 22. As already stated above, in a case based on circumstantial evidence there must be a chain of evidence sofar complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and the Court to be certain that the circumstantial evidence is of such a character as is consistent only with the guilt of the accused. I find that in the instant case, witnesses have made innumerable contradictory statements on material points which have been discussed above. I find that in the instant case, witnesses have made innumerable contradictory statements on material points which have been discussed above. So, it can not be said that the prosecution had established the chain of circumstances pointing only to the guilt of the accused. Infirmities and inconsistencies in the evidence of the witnesses, as discussed above, would rather go to show that they are tutored witnesses and their evidence does not inspire confidence to believe. 23. The defence has examined D.W. 1 Satyalal Harijan and D.W. 2 Vishnulal Rai and from their statements it appears that the appellant and his brother had applied for allotment of homestead land and the land owner Habibur Rahman had filed a protest petition (Exhibit-B) against their proposal and it has come in the evidence that there is no existence of the house of the appellant in the village after the occurrence. As such, the defence version looks probable that the appellant might have been implicated in the case with a view to oust him from the village which is fully dominated by muslim community and only two houses of Hindu community were there including the house of the appellant. 24. Having considered all the facts and circumstances of the case, I am of the view that the prosecution had failed to prove the charges against the appellant beyond all reasonable doubt and the learned court below was not justified in convicting the appellant. Accordingly, the appellant is held not guilty to the charges and acquitted of the same. Consequently the order of conviction and sentence recorded by the court below are hereby set aside. 25. In the result, this appeal is allowed the appellant, who is in custody is directed to be released forthwith, if not required in any other case.