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Patna High Court · body

2005 DIGILAW 423 (PAT)

State Of Bihar v. Arjun Muni

2005-04-15

GHANSHYAM PRASAD, INDU PRABHA SINGH

body2005
Judgment I.P.Singh, J. 1. All the aforesaid Criminal Appeals as also Death Reference arise out of the judgment dated 3rd July, 2002 and order dated 5th July, 2002 passed by Shri Asdwani Kumar Sinha, Additional Sessions Judge-cum-Presiding Officer of Fast Track Court No. 2, Madhepura in Sessions Trial No. 56 of 1989. 2. Altogether 22 persons including these 21 accused-appellants faced trial for the offence under sections 302/34, 380 and 120B of the Indian Penal Code out of them accused Bilasi Mahto has been acquitted of all the charges framed against him. However, remaining 21 accused-appellants have been found guilty only under sections 302/34 and 120B of the Indian Penal Code. Out of the 21 appellants, 12 appellants, namely, Arjun Muni, Hari Ballabh Narayan Singh, Baijnath Sharroa, Bino Mandal, Upendra Mandal, Jalim Mandal, Jagdish Sahni, Indradeo Mandal, Dukha Sharma, Shivesh Mandal, Bhumi Mandal and Bindeshwari Mandal have been awarded capital punishment under section 302/34 of the Indian Penal Code and rest nine accused-appellants, namely, Suresh Mandal, Rajendra Sahni, Gulabi Sahni, Bhuthi Mandal, Dani Mandal, Tej Narayan Paswan, Shatrughan Mandal, Nandlal Sharma and Debu Rishideo have been sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/- each and in default to undergo rigorous imprisonment for two years. No separate sentence has been passed under section 120B of the Indian Penal Code. The reference for confirmation of death sentences has been numbered as D.R. No. 10/2002. 3. There was a Math having double storied building in village Sonbarasa, PS. Alam Nagar, District-Madhepura of which the deceased Mahanth Sunder Giri was Mahanth. Deceased Gayatri Devi was his wife and deceased Umesh Kuer was his Sala (brother-in-law). On the occasion of Depawali i.e. 4.11.1983, all the aforesaid persons were in the village. In the night of Dipawali Kali Pooja was performed till late night and goats were also sacrificed. Mahanthji, his wife and his Sala participated in Kalipooja. Thereafter they all retired to their respective beds for sleep. Mahanthji and his wife slept in a room situated on upper storey of the Math. Deceased Umesh Kuer slept in a room situated on upper storey alongwith servant (accused-appellant) Baijnath Sharma alias Baiju Sharma. Other servants of the Math including accused-appellants Upendra Mandal, Hari Ballabh Singh, Jalim Mandal, Bino Mandal and others slept in the ground floor after locking the main gate of the Math from inside. 4. Deceased Umesh Kuer slept in a room situated on upper storey alongwith servant (accused-appellant) Baijnath Sharma alias Baiju Sharma. Other servants of the Math including accused-appellants Upendra Mandal, Hari Ballabh Singh, Jalim Mandal, Bino Mandal and others slept in the ground floor after locking the main gate of the Math from inside. 4. In the early morning at about 3-4 A.M. the priest of the temple of Math Sheo Shankar Jha (P.W.10) who is informant of the case rushed to the Math from his house situated nearby, on Hulla of accused Upendra Mandal. He found several persons of the village in the Math apart from servants. He came to know from them that all the three persons, namely, Mahanth Sunder Giri, his wife and Sala had been killed at the upper floor of the Math. He went there and found that all the three persons had been killed in their Prespective rooms by some sharp edged weapons. The dead body of all the three deceased were lying in the room in pool of bloods bearing marks of injury. It, transpired to him that the key of the lock of the main gate was retained by accused servant Hari Ballabh Singh. Hari Ballabh Singh also disclosed to him that miscreants took away gun also belonging to Mahanthji. 5. The informant Sheo Shankar Jha enquired from servants about the occurrence and also as to how the killers entered in the Math when all doore of the Math were closed but they did not answer. It is alleged that Mahanthji had land disputes with several persons including servants of the Math. Most of the servants had bataidari cases with Mahanthji. Accordingly, it was suspected that the servants in connivance with outsiders might have committed murder of all the three persons in order to usurp properties of the Math. 6. Sheo Shankar Jha (P.W.10) lodged fardbeyan which is Ext. 9, before police of Alam Nagar police station. RW. 28 Ram Chandra Singh, the then S.I. recorded fardbeyan on 5.11.1983 at 5.30 A.M. Thereafter, he went to the place of occurrence and inspected the same in presence of P.W. 27 Ram Bilas Singh, A.S.I. They seized blood stained clothes from the person of some of the accused appellants including servants of the Math through Ext. 7 series. RW. 28 Ram Chandra Singh, the then S.I. recorded fardbeyan on 5.11.1983 at 5.30 A.M. Thereafter, he went to the place of occurrence and inspected the same in presence of P.W. 27 Ram Bilas Singh, A.S.I. They seized blood stained clothes from the person of some of the accused appellants including servants of the Math through Ext. 7 series. The dead bodies of deceased were photographed by photographer Barun Kumar Hiteshi (P.W.11) and thereafter, he prepared inquest reports which are Ext. 8 series and sent the dead bodies to Sadar Hospital, Madhepura for postmortem. He also collected and seized bloods from rooms through seizure list Exts. 7/7/, 7/8 and 7I 10. He also seized one blood stained kharag (Katta) from window of a room situated on upper floor through seizure list Ext. 7/11. He again visited the place of occurrence on 20.11.1983 alongwith C.I.D. finger prints expert and photographer and took photographs of some foot prints and finger prints and got them compared with actual finger and foot prints of accused-appellants. 7. He also searched houses of some accused-appellants on 6.11.1983 and seized blood stained clothes from their houses. Confessional statements of some of the accused-appellants were also recorded under section 164 of the Code of Criminal Procedure which are Exts. 2 to 2/6. After completion of investigation and obtaining post mortem reports and report of finger prints expert the chargesheet was submitted against these accused-appellants and others. 8. In course of the trial, altogether 28 witnesses have been examined out of whom P.W.10 Sheo Shankar Jha is the informant, P.W. 28 Ram Chandra Singh and RW. 27 Ram Bilas Singh are I.O. of the case. P.W. 19 is the son of the deceased Mahanth Sunder Giri, RW. 26 is the brother of the deceased, P.Ws. 20 and 21 are the then Judicial Magistrate who recorded confessional statement of the accused persons, P.Ws. 1 and 11 are the formal witnesses and P.Ws. 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14 and 18 have been declared hostile. 9. Defence is the total denial of the occurrence. According to the appellants, they have been falsely implicated in this case mere on suspicion. One document Ext. A, the certified copy of the judgment of Sessions Trial No. 12 of 1983 has also been filed. 10. 9. Defence is the total denial of the occurrence. According to the appellants, they have been falsely implicated in this case mere on suspicion. One document Ext. A, the certified copy of the judgment of Sessions Trial No. 12 of 1983 has also been filed. 10. In course of the argument, the learned lawyer for the appellants challenged the judgment in question both on facts as well as in law. It is submitted that actually this is a case of no evidence and there is no legal material to sustain the conviction. The conviction of the appellants is based on inadmissible evidence. It is further submitted that the circumstances mentioned in the impugned judgment for recording conviction are not sufficient to form complete chain for the conviction of the appellants. 11. The learned lawyer for the State frankly expressed his enability to support the judgment in question and submitted that actually the I.O. has mis-directed his investigation and persons who were eyewitnesses of the occurrence have been made an accused and hence it is a fit case in which, in order to do complete justice, the case should be remitted back to the lower court for re-investigation and de novo trial. 12. In order to find out material and circumstances which led the court below to record order of conviction of appellants and award extreme penalty like capital punishment to 12 of the appellants, it would be convenient to go through the judgment minutely. In this regard, judgment paragraphs 26 to 34 and repeat paragraph 28 are important. In paragraphs 26 to 33 of the judgment the so-called confessional statements of accused appellants Arjun Muhi, Hari Ballabh Narayan Singh, Baiju Sharma, Bibhuti Bhushan, Bino Mandal, Upendra Mandal and Jalim Mandal Exts. 2 to 2/6, have been discussed, relied upon and made basis for conviction of the accused-appellants. Presumely those statements have been used against other accused-appellants under section 30 of the Indian Evidence Act. 13. 2 to 2/6, have been discussed, relied upon and made basis for conviction of the accused-appellants. Presumely those statements have been used against other accused-appellants under section 30 of the Indian Evidence Act. 13. Section 30 of the Indian Evidence Act runs as follows: "Section-30: Consideration of proved confession effecting person making it and others jointly under trial for the same offence.When more persons than one are being tried jointly for the same offence and a confession made by one of such persons effecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession." 14. If is apparent from the section that before any statement made by one of the accused persons, tried jointly with the others can be taken into consideration against such others, It must fulfil two conditions (a) it must be a confession of guilt affecting himself equally with the others; and (b) it must be proved against those persons who are jointly tried with him. Here, it is also important to mention that the settled principle is that confession of co-accused is not technically evidence and it cannot be treated as substantive evidence. Therefore, confession of co-accused cannot be made the foundation for conviction. Similar view has been expressed by the apex court in a case of Kashmira Singh vs. State of Madhya Pradesh reported in 1952 Cri. L.J. 839. 15. The word "confession" has no where been defined. The test to decide where a statement is confession or not is to see whether the accused states that he has done something which amounts to an offence thereby accusing himself of committing an offence. On careful perusal of the statements exhibited as Ext. 2 series, it would appear that none of the statements stands the test of the confessional statement as stated above. None of the makers of the statement has acknowledged his guilt or has stated that he did anything which amount to an offence. All of them have shifted the entire accusation to some other accused exonerating himself of any involvement in the alleged crime. Apparently, such statement does not amount to confession and hence not admissible under section 30 of the Indian Evidence Act against any other co-accused. All of them have shifted the entire accusation to some other accused exonerating himself of any involvement in the alleged crime. Apparently, such statement does not amount to confession and hence not admissible under section 30 of the Indian Evidence Act against any other co-accused. The court below has committed serious error in not only relying upon such statement but making the same as foundation for recording conviction of accused- appellants. The learned counsel for the State also conceded that such statements are not admissible in law and hence must be kept aside for recording order of conviction. 16. Here, it is also important to mention that in statement of the accused persons recorded under section 313 of the Code of Criminal Procedure no question with regard to the confessional statement has been put to any of the accused persons including those who have made confessional statements. Omission to put such a vital question to the accused has robbed them of an opportunity to explain the same. Since the question was very vital it has naturally seriously prejudiced the accused- appellants and hence in this view of the matter also Ext. 2 series cannot be made basis for the conviction. 17. The court below in paragraph 34 of his judgment dealt with four circumstances which according to him, are sufficient to complete chain pointing towards guilt of the accused-appellants with reasonable definiteness. Those circumstances are as follows: (1) On enquiry by the informant the servants of the Math, who are also accused-appellants did not disclose anything as to how anybody from outside enter inside when gates were locked from inside. (2) It was servants of the Math who were present inside the building locked from inside to explain and disclose the names of the assailants. Keeping mum by the accused servants, according to him another link of the chain. (3) Foot prints of accused. Bindeshwari Mandal and finger prints of accused Baiju Sharma alias Baijnath Sharma were found at the place of occurrence. (4) Seizure of blood stained clothes from persons and houses of some of the accused-appellants just after the occurrence is strong link of the chain. 18. Now we have to examined how far above circumstances have been proved by the prosecution beyond all reasonable doubt and whether those circumstances are sufficient to hold accused-appellants guilty for the alleged crime. 19. (4) Seizure of blood stained clothes from persons and houses of some of the accused-appellants just after the occurrence is strong link of the chain. 18. Now we have to examined how far above circumstances have been proved by the prosecution beyond all reasonable doubt and whether those circumstances are sufficient to hold accused-appellants guilty for the alleged crime. 19. Out of four circumstances mentioned above, two are important. Those are nos. 3 and 4. It appears that foot prints of accused Bindeshwari Mandai and finger print of Baiju Sharma were found at the place of occurrence. On this point, evidence of P.Ws. 28, 24 and 23 are important. 20. P.W. 28 Ram Chandra Singh is the I.O. He in his examination-in-chief, paragraph 34, has stated that he alongwith State Examiner finger print C.I.D., photo expert C.I.D. and others re-visited the place of occurrence on 20.11.1983 and photo expert P.W. 23 Ashok Kumar Thakur in presence of witnesses Kamleshri Prasad Mandal (P.W. 15) and Sheo Shankar Jha (P.W. 10) took photo of blood stained foot prints found over rough floor of the room situated on upper floor marked as A, B, C and D and also a chance blood stained foot print found in another room situated on upper floor marked as E. He has further stated that the photographer also took photographs of finger prints found on a tin plate marked as X and on the bundle of doublly folded papers marked as Z/1 and Z/2. Paragraph-38 of the evidence shows that after obtaining order from the court the took finger prints and foot prints of different accused persons over 60 sheets, marked as Exts. 14 to 14/59 and sent the same for expert examination. 21. P.W. 24 Md. Shamim Alam is finger print examiner of C.E.D. and P.W. 23 is the photographer who photographed the foot prints and finger prints found at the place of occurrence. RW. 24 has proved expert reports of foot prints and finger prints, which are Exts. 5 and 5/1. Ext. 5is report regarding foot prints. It shows that one of the foot prints marked as E found at the place of occurrence tallied with actual foot prints of accused-appellant Bindeshwari Mandal. Ext. 5/1 is the report regarding finger prints. Finger print marked as X tallied with thumb impression of accused- appellant Baiju Sharma. 22. 5 and 5/1. Ext. 5is report regarding foot prints. It shows that one of the foot prints marked as E found at the place of occurrence tallied with actual foot prints of accused-appellant Bindeshwari Mandal. Ext. 5/1 is the report regarding finger prints. Finger print marked as X tallied with thumb impression of accused- appellant Baiju Sharma. 22. The evidence of P.W. 28 goes to show that photograph of foot prints and finger prints were taken after 20 days of the alleged occurrence. Therefore, no much importance can be attached to the report of the expert. Apart from it presence of foot prints and finger prints of above two accused-appellants were not of much consequences as admittedly they were servants of the Math and at the time of the alleged occurrence they were present in the Math and were sleeping at different places. Naturally, on knowing at about the commission of murder they must has gone upstair to see their Malik (Mahanthji) and other deceased persons). As per prosecution story, accused Baiju Sharma was even present in the room in which deceased Umesh Kuer had slept. Under the circumstances, presence of their blood stained foot prints or finger prints are not a circumstance to fasten guilt against them. 23. The next important circumstance mentioned by the court below is no. 4 i.e. seizure of blood stained clothes from person and houses of some of the accused- appellants. 24. P.W. 27 Ram Bilas Singh is the second I.O. of the case. Paragraph-2 of his evidence goes to show that he searched the house of accused-appellant Upendra Mukhiya and seized blood stained Dhoti in presence of witnesses Upendra Singh (P.W. 25) and Shambhu Kumar Singh (P.W. 4) through seizure list Ext. 7. Paragraph-3 of his evidence goes to show that he further searched the house of accused-appellants Jagdish Sahni in presence of witnesses Hari Nandan Thakur (P.W. 12) and Nago Thakur (P.W. 14) and seized one blood stained J.P. Cut Kurta through seizure list Ext. 7/1. Paragraph-4 of his evidence goes to show that he also searched the house of accused-appellant Indradeo Mandal in presence of witnesses Deoki Nandan Singh (P.W. 9) and Phool Chandra Mandal (P.W. 13) and seized blood stained Dhoti and Kurta through Ext. 7/2. 7/1. Paragraph-4 of his evidence goes to show that he also searched the house of accused-appellant Indradeo Mandal in presence of witnesses Deoki Nandan Singh (P.W. 9) and Phool Chandra Mandal (P.W. 13) and seized blood stained Dhoti and Kurta through Ext. 7/2. Paragraph-5 of his evidence goes to show that he also searched the hosue of accused-appellant Dukha Sharma in presence of witnesses Sonelal Singh (P.W 17) and Adhik Sharma and seized blood stained Dhoti and Kurta through seizure list Ext. 7/3. Paragraph-7 of his evidence goes to show that he searched the house of accused-appellant Baiju Sharma in presence of witnesses Kamleshwari Mandal (P.W. 2) and Chandradeo Sharma (P.W. 5) and seized blood stained Bushshirt and Gamcha through seizure list Ext. 7/4. Paragraph-8 goes to show that he seized bloodstained J.P. Cut Kurta from person of accused-appellant Hari Ballabh Narayan Singh in presence of witnesses Kamleshwari Mandal (P.W. 2) and Chandradeo Sharma (P.W.5). Similarly paragraph-10 goes to show that he seized blood stained shirt from person of accused-appellant Bino Mandal in presence of P.Ws. 2 and 5 through seizure list Ext. 7/6. 25. P.W. 28, who is I.O. of the case, in his examination-in-chief paragraph 44 has stated that he searched the house of Bhumi Mandal and seized blood stained Dhoti which is Ext. 13/2. In paragraph-47, he has stated that he sent all the exhibits including blood like stained clothes, blood stained Khadag, bloods of deceased persons in nine bundles to the Director, Forensic Science Laboratory, Bihar through Chief Judicial Magistrate, Madhepura. In para-graph-85 of the cross-examination, he has stated the points referred to be examined by Forensic Science Laboratory, which are as follows: (1) Whether blood like stains was human blood or not? (2) What was the group of the said blood, if it was human blood? (3) Whether it was a blood of she- goat/he-goat or human being and if it was human blood what was its group? (4) After examining the blood oozed from the body of Mahanth Sundar Giri and the blood found over the rough plaster ascertain the blood group. (5) What was the blood group of Gayatri Devi, Umesh Kuer and Mahanth Sundar Giri? (4) After examining the blood oozed from the body of Mahanth Sundar Giri and the blood found over the rough plaster ascertain the blood group. (5) What was the blood group of Gayatri Devi, Umesh Kuer and Mahanth Sundar Giri? (6) Whether the blood found on the clothes seized from the person and houses of the suspects was human blood or not and if it was human blood it matched with the blood group of all the three deceased persons or not? (7) If the blood found on the bundle no. 16 Kharag was human blood, did it match with the blood group of the deceased person or not? He has further stated in the same paragraph that the report of the expert was not received till submission of the charge sheet. The same was also not brought on. the record during the trial. 26. It appears from the above facts that though clothes were seized from the person, and houses of different accused- appellants having blood like stained but there is nothing on the record to show that the stains were of human blood and that of the deceased persons. Absence of report of the Forensic Science Laboratory goes to the root of the prosecution story. In such circumstance, guilt cannot be fastened to the accused-appellants mere on suspicion. Apart from it, all the witnesses before whom seizure were said to have been made have been declared hostile and they have not supported the fact that that actually the clothes were seized either from the persons or houses of the accused-appellants. 27. Two decisions of the apex court reported in 2003(1) S.C.C. 398 (Raghunath vs. State of Haryana & Another) at paragraphs and 2003(8) S.C.C. 180 (State of Rajasthan vs. Raja Ram) at paragraph-21 are relevant on this point: " Paragraph-8: There is no evidence on record to show that the blood stain sent to Forensic Science Laboratory bears a certificate that the blood is human blood and it belongs to a particular group which is the same blood group of the deceased Kundan Lal. Therefore, the blood stain is of a human blood is not conclusive evidence that it belongs to the blood group of deceased Kundan Lal. Therefore, the blood stain is of a human blood is not conclusive evidence that it belongs to the blood group of deceased Kundan Lal. Paragraph-21: Coming to the blood stain on the clothes which were allegedly seized, on being pointed by the accused, the Forensic Laboratory report indicated that there were bloods of human blood of the shirts and trousers of the accused. There was no effort to find out the blood group. In fact, the High Court noted this position and observed that presence of P.W. 4 at the time of recovery is doubtful as he has been found to be an un-reliable witness. It was observed that even if it is accepted that there was existence of blood, this circumstances not such from which it can be found that the accused was the perpetrator of the crime. In the aforesaid report Ext. 61, it was clearly stated that the blood group of blood found on the clothes could not be determined. Neither the blood group of the deceased nor that of the accused was determined. In that background, the High Court held that the possibility of the blood being that of the accused cannot be ruled out. In view of the findings recorded by the High Court about the non-acceptable of evidence relating to the alleged extra judicial confession, the conclusion of the High Court cannot be said to be one which are un-supportable." 28. There is specific defence of the accused-appellants that in the night of the alleged occurrence several goats were sac-rificed in which they participated and, therefore, the blood of goats might have stained in their clothes. This story finds support from the cross-examination, paragraph-76 of the RW. 28, the I.O. In paragraph-76 of the cross-examination, this witness has admitted that in course of the investigation, he found five beheaded body and heads of he-goats in a room of the Math. The informant P.W.1 vide para-5 of the cross-examination has also supported that fact and was stated that in that very night 12/13 young goats were sacrificed. People of the village and accused used to go there to see sacrifices. 29. Under the back drops of the defence, it is quite clear that the prosecution has failed to prove that blood stains on clothes were of human blood and that of the blood groups of the deceased persons. People of the village and accused used to go there to see sacrifices. 29. Under the back drops of the defence, it is quite clear that the prosecution has failed to prove that blood stains on clothes were of human blood and that of the blood groups of the deceased persons. Therefore, the entire exercise of the prosecution in absence of the Forensic Science Laboratory report leads nowhere. 30. Other two circumstances, in absence of proof of above two circumstances, discussed above, are of no consequence. It is legal right of the accused-to keep mum and do not disclose anything which might implicate him in the crime, For that no adverse inference can be drawn against them leading to inference of participation in the commission of the crime. It is for the prosecution to prove its case beyond reasonable doubts. No duty is cast on the accused to explain how the real assailants trooped inside the Math and committed crime. Apart from it in between the two circumstances i.e. nos. 1 and 2, there are many missing links to complete chain of circumstances leading to an inference regarding guilt of the accused-appellants. 31. Thus, from the above discussions, it is quite clear that the circumstances mentioned in the impugned judgment, as discussed, above are not sufficient to fasten guilt upon the accused- appellants. The court below is wrong to infer commission of crime on the basis of the aforesaid circumstances. 32. So far oral evidence is concerned, it is of no help to the prosecution. Not a single witness has claimed to be eyewitness of the occurrence. Most of the witnesses, as said above, have been declared hostile. Those are P.Ws. 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14 and 18. P.W. 1 and 11 are formal witnesses. P.W. 1 Abhinandan Yadav has proved formal F.I.R. as Ext.1. P.W. 11 Barun Kumar Hitaishi is a Photographer who took snaps of the dead bodies on 5.11.1983. Those photographs have been marked as material Exts. I to V. 33. P.W. 10 Shiv Shankar Jha is the informant of the case. He has also substantially resiled from his earlier statement made in the fardbeyan. Apart from it, he is not an eye-witness of the occurrence. Those photographs have been marked as material Exts. I to V. 33. P.W. 10 Shiv Shankar Jha is the informant of the case. He has also substantially resiled from his earlier statement made in the fardbeyan. Apart from it, he is not an eye-witness of the occurrence. He in his examination-in-chief paragraph-1 has stated that on Hulla raised by Upendra Mandal at 4 O clock in the morning he came on the road where Upendra was raising hulla. Some other persons were also present there. They informed about the murder of aforesaid three persons. Thereafter he went upstairs and found the dead bodies. In paragraph 2, he has resiled from his earlier statement and has stated that he did not enquire anything from the servants of the Math and went straight to the" police station where he lodged fardbeyan. 34. P.W. 19 Mahanth Krishna Nand Giri is the son of the deceased Mahanth Sundar Giri. It appears from his evidence paragraph-2 that on the alleged date of the occurrence he was at Bhagalpur. On the next day i.e. on 6.11.1983, one Bhumi Rishideo came to him and informed about the occurrence. It further appears from his evidence paragraph-2 that even on hearing about the death of his parents he did not come to the village and went to Gopalpur. He reached at the place of occurrence village only on 23.11.1983 and, thereafter, he enquired about the occurrence from his servants but they did not tell the name of the killers. In paragraph-4 of his evidence, he has stated that about 107 cases were going on in between her father and the accused persons in respect of the land of the Math. He has further stated that all the cases were decided in favour of his father and thereafter, this occurrence took place but no document has been filed to show that there was any Bataidari case with the accused persons and that those were decided in favour of the deceased Mahanth. On the other hand, in paragraph-9 has admitted that he did not file any document relating to Bataidari cases. He has further stated that he cannot say as to when these cases were filed and disposed of and how many bighas of land were under litigation. Thus, it is quite clear that he is not the eye-witness of the occurrence. On the other hand, in paragraph-9 has admitted that he did not file any document relating to Bataidari cases. He has further stated that he cannot say as to when these cases were filed and disposed of and how many bighas of land were under litigation. Thus, it is quite clear that he is not the eye-witness of the occurrence. Paragraph-14 of his cross-examination goes to show that the accused-appellants have been implicated in this case mere on suspicion. He has stated in the above paragraph that he had doubt on these people (accused-appellants) that they might have committed this offence. He has further stated that he had told the hearsay information and he had know any personal knowledge about it. 35. RW. 26 Chetlal Sharma is the brother of the deceased Mahanth Sunder Giri. He has come to say that deceased Sunder Giri had dispute with Hari Ballabh Narayan Singh in respect of landed property. In paragraph-2 of his evidence, he has stated that he came to know that bataidars had killed him. In paragraph-4, he has further stated that the bataidars of Sonbarsa, Keshopur and Singhar had committed the said murder. In cross-examination paragraph-6, he has stated that Hari Ballabh Narayan Singh who was a C.P.M. leader had already died. Thus, it is quite apparent that he is also not an eye witness of the occurrence and he had only doubt against the bataidars but he has not disclosed the name of bataidars. 36. P.W. 22 Bindeshwari Yadav in paragraph-1 of examination-in-chief has stated that on getting information about the murder of the aforesaid there persons he went to Sonbarsa and saw the dead bodies of the deceased persons. He has stated in paragraph-4 that Mahanthjee wanted to sell his land but accused Shivesh Mandal, Hari Ballabh Narayan Singh, Jagdish Sahni, Bindeshwari Mandal and others used to threaten the person who wanted to purchase the same. In paragraph-5, he has further stated that his brother Kameshwar Yadav wanted to purchase the said land but was killed by Shivesh Mandal, Hari Ballabh Narayan Singh and others and a case in this respect was also instituted. However, the defence has filed the judgment of the aforesaid case, which is Ext. In paragraph-5, he has further stated that his brother Kameshwar Yadav wanted to purchase the said land but was killed by Shivesh Mandal, Hari Ballabh Narayan Singh and others and a case in this respect was also instituted. However, the defence has filed the judgment of the aforesaid case, which is Ext. A to show that the case instituted against Shivesh Mandal and others was found false and accordingly, they were acquitted by the court of 3rd Additional Sessions Judge, Madhepura vide judgment dated 22.6.1992. In paragraph 8 of his cross-examination, he has created only doubt upon Shivesh Mandal, Hari Ballabh Narayan Singh and others regarding their involvement in commission of the murder of aforesaid three persons. In paragraph-15 of his cross-examination has stated that he could not state the names of bataidars who had filed cases in respect of land against Mahanthjee. He also could not state the number of bataidars. He has further admitted that he had not even seen any paper in respect of bataidari. 37. P.W. 15 Kamleshwari Prasad has not stated anything about the occurrence. He has only stated that at about 3.30 A.M. in the morning, he heard hulla of Inqualab Zindabad Lal Jhanda Zindabad and thereafter, in the morning, he came to know that Mahanth Sundar Giri, his wife and brother- in-law had been killed. He has not claimed that he had seen the occurrence. He has also not named any of the accused persons as assailant of the aforesaid three deceased. In cross-examination paragraph- 3, he has stated that he did not know that Mahanthjee had any enmity with too many people. In paragraph-4, he has admitted that the bataidari case filed by accused Shivesh Mandal has been decided by the Hon ble High Court in his favour. 38. P.W. 16 Devendra Choudhary is also not the eye-witness of the occurrence. He has stated in his examination-in-chief paragraph-1 that on the next day he heard news about the murder of Mahanth Sundar Giri and others. The Sonbarsa Math is situated at a distance of 3 K.M. from his village. In paragraph-2 of his examination- in-chief, he has only stated that one day before the occurrence 3-4 unknown persons were found present in the house of Rasheshwar Mukhiya and Upendra Mukhiya and they were asking them to stop doing work of Rajput and Bhumiar. The Sonbarsa Math is situated at a distance of 3 K.M. from his village. In paragraph-2 of his examination- in-chief, he has only stated that one day before the occurrence 3-4 unknown persons were found present in the house of Rasheshwar Mukhiya and Upendra Mukhiya and they were asking them to stop doing work of Rajput and Bhumiar. This statement does not lead to any conclusion regarding complicity of the accused-appellants in the alleged crime. Apart from it, the person who informed about the aforesaid talk namely Rajeshwar Mukhiya, the servant of this witness, has not been examined. 39. P.W. 25 Upendra Singh is also hearsay witness. He has stated in his examination-in-chief paragraph-1 that he heard this much only that all the aforesaid three persons were killed. He has not named any person as assailants of Mahanthjee and others. In cross-examination paragraph- 3, he has stated that he visited the room in which murder was committed alongwith accused Bindeshwari Mandal and Baiju Mandal. He has made general statement that people had dispute with Mahanthjee on the issue of Bataidari but he has not disclosed name of bataidars. 40. Out of the rest witnesses P.W. 23 is a photographer of C.I.D. Department who took photographs of foot prints, finger prints etc. P.W. 24 Md. Shamim Alam is a finger print examiner, who has proved Exts. 5 and 5/1.RWs. 27 and 28 are I.Os. of the case. The most important witness doctor who conducted post mortem upon the dead bodies of the aforesaid three persons has not been examined in this case. 41. The learned court below in repeat paragraph-26 of the judgment has discussed about the motive and genesis of the alleged murder and has found sufficient motive for commission of crime by the accused-appellants. Here, we want to say that in absence of clear and cogent evidence pointing to the accused-appellants guilty the proof of motive, however adequate cannot sustain conviction. The learned lower court has discussed about the various litigations with the different persons in which the deceased Mahanth Sundar Giri had interest. However, not a single document has been fifed to prove the motive. Thereafter, on mere oral evidence regarding litigation disclosed by the I.O. and other witnesses are not sufficient to prove the motive for commission of murder. The learned lower court has discussed about the various litigations with the different persons in which the deceased Mahanth Sundar Giri had interest. However, not a single document has been fifed to prove the motive. Thereafter, on mere oral evidence regarding litigation disclosed by the I.O. and other witnesses are not sufficient to prove the motive for commission of murder. As discussed above, the prosecution has miserably failed to prove the guilt of the accused-appellants through circumstantial evidence or oral evidence. Therefore, motive or no motive is of no consequence. 42. From above discussion, it appears that the Investigating Authority misdirected the investigation and cannot properly investigate the case. The persons who could have been eye-witnesses of the occurrence have been made accused in this case as a result of which not a single eyewitness has been examined in this case to prove the murder of the Mahanth Sundar Giri and others. It is submitted by the learned counsel for the State that due to faulty investigation by the Investigating Authority no sufficient evidence has come on the record to prove the case and it is submitted that it is a fit case in which reinvestigation should be made and trial should also be made de novo. Even if the submission of the learned counsel for the State is accepted, it is not a fit case in which the trial and investigation should be re-opened. The occurrence took place about 22 years ago in the year 1983. The accused-appellants have undergone all rigorous of criminal prosecution for 22 years. Now it would be exceedingly un-reasonable and unjust to put them under further rigor of criminal prosecution and dragged them in de novo trial for their no fault. The benefit of fault, if any on the part of prosecution, must go to the accused-appellants. 43. Thus, on aforesaid discussion of facts and circumstances as well as oral evidence, we are of the view that the prosecution has miserably failed to establish the guilt of the accused-appellants. Apparently, the order of conviction and sentence passed by the learned lower court is not sustainable and is fit to be set aside. Accordingly, the judgment and order in question is hereby set aside and all the aforesaid appeals are allowed. The death reference is also accordingly answered in negative. All the accused-appellants are in jail. Apparently, the order of conviction and sentence passed by the learned lower court is not sustainable and is fit to be set aside. Accordingly, the judgment and order in question is hereby set aside and all the aforesaid appeals are allowed. The death reference is also accordingly answered in negative. All the accused-appellants are in jail. They are directed to be released at once if not wanted in any other case. Ghanshyam Prasad, J. 44 I agree.