Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 4 (PAT)

Srilal Bhagat v. State Of Bihar

2003-01-03

P.N.YADAV, S.N.JHA

body2003
Judgment S.N.Jha and P.N.Yadav JJ. 1. The sole appellant in this appeal has been convicted under Sections 364A and 302 of the Penal Code and sentenced separately to imprisonment for life. The sentences, however, have been ordered to run concurrently. He has also been sentenced to fine of Rs. 2,000/- or, in default, rigorous imprisonment for one year. 2. The appellant was put on trial in connection with an occurrence of 2.2.96. As per the Fardbayan of Rajdeo Bhagat the appellant called his son Bipin Kumar inviting him for bird hunt. He also offered to purchase "goli" and lead. Bipin went along with him but did not return. His dead body was found on 4.2.96 at about 2. P.M. in the sugar-cane field on Nathuni Sah. Meanwhile, on 3.2.96 Rajdeo Bhagat had lodged the Fardbayan. He stated that his son had been kidnapped for money. On the fardbayan, the case was registered under Section 364A of the Penal Code. After recovery of the dead body section 302 of the Penal Code was added. The appellant was apprehended and at the end of investigation, upon submission of chargesheet, he was put on trial. 3. At the trial the prosecution examined ten witnesses to prove its case. Out of them, P.W. 1 Ramadhar Bhagat, P.W. 2 Bharat Bhagat, P.W. 3 Nathuni Sah, P.W. 4 Ratan Sah, P.W. 5 Munna Bhagat, P.W. 6 Gopichand Sah and P.W. 7 Rajeshwar Pandit are co-villagers. All of them stated to have seen the appellant taking away Bipin Kumar in the morning of 2.2.96. The informant Rajdeo Bhagat, examined as P.W.8, reiterated his Fardbayan version. Doctor Tej Narain Khan who held the post mortem, was examined as P.W. 9. The Investigating Officer Hari Shankar Prasad was examined as P.W. 10. The appellant also examined one witness, namely, Kailash Ram, to prove the complaint lodged by wife of the appellant against the informant and members of his family. At the end of the trial the court convicted and sentenced the appellant in the manner stated above. 4. Shri Suraj Nr. Pd. Sinha, learned counsel for the appellant, submitted that the oniy circumstance which can be said to have been proved against the appellant is that the deceased and the appellant were last seen together but this solitary circumstance cannot conclusively establish the guilt of the appellant. 4. Shri Suraj Nr. Pd. Sinha, learned counsel for the appellant, submitted that the oniy circumstance which can be said to have been proved against the appellant is that the deceased and the appellant were last seen together but this solitary circumstance cannot conclusively establish the guilt of the appellant. He submitted that admittedly there is no eye witness to the occurrence and, therefore, the case is one of circumstancial evidence. In such a case unless the circumstances are found to be wholly consistent with the guilt of the accused and inconsistent to the plea of innocence, he cannot be convicted. Shri Lala Kailash Behari Prasad, learned counsel for the State, submitted that though the evidence of last seen by itself may not be sufficient to establish the guilt of the accused, where the crime is committed in close proximity of time, it would constitute strong circumstances pointing to the guilt of the accused. He also submitted that the informant stated about the demand for money by the appellant and giving him a threat in this regard. 5. So far as the offence under Section 364A IPC is concerned, it is true that in the Fardbayan an apprehension was expressed by the informant that kidnapping was for ransom and he reiterated the same in his evidence, the attending circumstances do not show that kidnapping was for money. Normally in case of kidnapping for money the demand is made with the victims family but nothing of the kind was done in the instant case. None of the witnesses except the informant and P.W 7 stated about any such demand by or at the instance of the appellant. The witnesses rather spoke unequivocally that there was no enmity between the family of the appellant and the informant. This gives rise to the question of motive-which is relevant in cases of circumstantial evidence. The prosecution has failed to point out any such motive much less establish by evidence in the instant case. 6. Coming to the offence of murder, the only circumstance which was proved by the prosecution is that the appellant and the deceased were last seen together but this by itself cannot be treated as conclusive circumstance on the point of guilt of the appellant. The evidence does not establish that the deceased was killed in close proximity of time. 6. Coming to the offence of murder, the only circumstance which was proved by the prosecution is that the appellant and the deceased were last seen together but this by itself cannot be treated as conclusive circumstance on the point of guilt of the appellant. The evidence does not establish that the deceased was killed in close proximity of time. Whereas the two of them were last seen at about 9 A.M. on 2.2.96, his body was found in the afternoon of 4.2.96. The post mortem report was held at 4.50 P.M. on the same day and the doctor assessed the duration of death between 36 to 72 hours. No specific question was asked to the appellant about the disappearance after 9 A.M. on 2.2.96. In these premises, it is not possible to uphold the conviction of the appellant under Section 302 of the Penal Code either. 7. In the result, the appeal is allowed, the conviction and sentences awarded to the appellant are set aside and he is acquitted of the charge. The appellant is in jail. He is directed to be released forthwith, if not wanted in any other case.