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2006 DIGILAW 103 (JHR)

LAKHAN SAH v. THE STATE OF BIHAR

2006-02-07

M.Y.EQBAL, N.DHINAKAR

body2006
Judgment : ( 1 ) THE appellants, Lakhan sah, Jamuna Sah and Jichhu Sah were arrayed as A2, A3 and A4 respectively along with Ram Bilash Sah, who was arrayed as al, before the 7th Addl. Sessions Judge, dumka in Sessions Cease no. 470 of 1984/ 058 of 1988. All the appellants along with ram Bilash Sah were tried under section 364 of the I. P. C. the trial Judge, finding the 1st accused. Ram Bilash not guilty, found the appellants guilty, as charged, and sentenced each one of them to imprisonment for life. The present appeal is against the said conviction and sentence. ( 2 ) IN this judgment the appellants will be referred as A2, A3 and A4. Ram Bilash sah will be referred as Al for the sake of convenience. ( 3 ) THE case of the prosecution is as follows :-P. W. 1, Sumi Hembrom is the wife of the deceased, Lakhi Chandra Sao. Lakhan Sah, a2 and Jamuna Sah, A3 are the step brothers of the deceased and Jichhu Sah is the nephew of the deceased. Ram Bilash Sah, who was acquitted, was the distant relative of the deceased and the accused. It is the case of the prosecution that there was dispute as regards partition of land amongst the accused and the deceased which is said to be the motive. On 5-8-1993, the accused 2, 3 and 4, namely, Lakhan Sah, Jamuna sah and Jichhu Sah went to the house of the deceased and wanted the deceased to come with them. The deceased was not willing to got with them on that day. Two days thereafter, Jamuna Sah, A3 and Lakhan sah, A2 went to the house of the deceased and the deceased went along with them. Later, A2 and A3 alone returned to the village, rasulpur Dahla where the deceased was staying with his wife, P. W. 1. P. W. 1 questioned them as to the whereabouts of her husband. They Informed P. W. 1 that he has not come with them and has stayed back with his father, Bengu Sao. P. W. 1 later enquired bengu Sao but could not find her husband. She went in search of her husband and later, on 15-8-1993 filed the fardbeyan, Ext. 2 at 1 P. M. which was registered as a crime and investigation was taken up. P. W. 1 later enquired bengu Sao but could not find her husband. She went in search of her husband and later, on 15-8-1993 filed the fardbeyan, Ext. 2 at 1 P. M. which was registered as a crime and investigation was taken up. It is the case of the prosecution that P. W. 1 found some skeletons near a temple and informed the same to P. W. 7, Baijnath murmu and that according to P. W. 7, P. W. 1 identified them to be the skeletons of her husband from the apparels which she found near the place. The Investigating Officer was brought to the scene and the skeletons were sent to forensic expert. The forensic expert, after examining the skeletons, gave his re-port, Ext. 3 with his opinion that the skeletons are that of a man aged below 25 years. After the completion of investigation, the final report was filed against all the accused. ( 4 ) THE appellants were questioned under section 313. Cr. P. C. They have denied all the incriminating circumstances. They did not examine any witness on their side. ( 5 ) LEARNED counsel appearing for the accused appellants contends that the prosecution having chosen to prove the case against the accused on circumstances it ought to have established all the links in the chain of circumstances and that prosecution having failed to do so, the appellants-accused are entitled for acquittal. He further submits that the trial Judge having acquired al on the same evidence was not justified in finding the appellants-accused alone guilty under section 364 of the I. P. C. ( 6 ) WE have heard Mr. T. N. Verma, learned A. P. P. appearing for the State. ( 7 ) EVEN at the out set, we may say that the prosecution has miserably failed to establish any of the links in the chain of circumstances though it is the case of the prosecution that the deceased was abducted with a view to commit his murder by the appellants. ( 8 ) SECTION 362 of the I. P. C. defines abduction as follows: -"whoever by force compels, or by any deceltful means induces, any person to go from any place, is said to abduct that person. ( 8 ) SECTION 362 of the I. P. C. defines abduction as follows: -"whoever by force compels, or by any deceltful means induces, any person to go from any place, is said to abduct that person. " section 364 of the I. P. C. is as follows :-"whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to then years, and shall be liable to fine. " ( 9 ) SO the onus is cast upon the prosecution to prove that the deceased was compelled to go from his house or by deceitful means he was asked to leave the house along with the accused and that the said abduction was in order to commit murder of the said person. The prosecution did not establish any of the above ingredients of the offence under Section 364, I. P. C. on the facts of this case. P. W. 1, the wife of the deceased has only stated that the deceased left along with A2 to A4 and that thereafter he did not return home. She has further stated that when questioned, A2 and A3 told her that the deceased stayed back with his father and when the deceased did not return home she went in search of her husband and not finding her husband, laid a complaint at the police station on 15-8-1993. There is no whisper either by P. W. 1 or by any of the witnesses that the deceased was compelled to got out of his house by the accused or was he taken by deceitful means. All that the prosecution has established is that the deceased left in the company of the accused on 5-8-1993 and later on some skeletons were seen by the wife of the deceased on 27-8-1993. Though the prosecution came out with a version that the skeletons which were seen by P. W. 1 near the temple were the skeletons for her husband, the prosecution did not establish the said fact beyond all reasonable doubt. It is not doubt true that the skeletons were sent to the forensic expert and the forensic expert gave his opinion under Ext. It is not doubt true that the skeletons were sent to the forensic expert and the forensic expert gave his opinion under Ext. 3 that the skeletons belong to a man aged below 25 years. It is not in dispute that the deceased, on the day of the incident, was between 35-40 years and therefore, it is difficult to accept that the skeletons which were seen by P. W. 1 were actually the skeletons of the deceased, Lakhi chandra Sao. It is also worthwhile to point out at this place that though, according to the prosecution, some apparels were seen by P. W. 1 and therefore, she came to the conclusion that the skeletons were of the deceased, the prosecutionmiserably failed to establish even this fact in Court. When P. W. 1 was in the box the prosecution did not even show the apparels to the witness and asked her whether the said apparels were actually found at the scene by her. Therefore, the witnesses did not even identify the apparels which were allegedly seen by her at the place where the skeletons were seen by her on 27-8-1993. It is also not out of place for us to mention the fact that the prosecution did not mark the seizure list nor is there any evidence on record to show the seizure list was prepared by the police officer. In fact, the prosecution did not even examine the Investigating Officer. It is also strange to say that the person who left the house and met with end on 15-8-1993, as claimed by the prosecution, could be found skeletonised on 27-8-1993 i. e. within twelve days by P. W. 1. It does not require much forensic skill or knowledge for any one to say that the dead body will not get skeletonized within the said period of twelve days. ( 10 ) IN the background of Ext. 3 and in view of our discussions made above, we are of the opinion that the prosecution even failed to establish that Lakhi Chandra Sao died and that he died on account of homicidal violence. We, therefore, do not find any reason to uphold the conviction and sentence imposed upon the appellants. ( 11 ) WE accordingly set aside the conviction and sentenced by allowing the appeal. It is reported that the appellants are on bail. They are discharged from their bail bonds. We, therefore, do not find any reason to uphold the conviction and sentence imposed upon the appellants. ( 11 ) WE accordingly set aside the conviction and sentenced by allowing the appeal. It is reported that the appellants are on bail. They are discharged from their bail bonds. Appeal allowed. --- *** --- .