Judgment SHIVA KIRTI SINGH and SUBASH CHANDRA JHA JJ. 1. The sole appellant along with 3 others was charged for the offence under Sections 302/34 and 201/34 of the I.P.C. By the impugned judgment and order dated 6.5.2002 while acquitting the other three co-accused, the learned 1st. Addl. Sessions Judge, Samastipur has convicted the appellant for the aforesaid charges in Sessions Trial No. 119/26 of 1999 arising out of Dalsingsarai P.S. Case No. 15 of 1998 and awarded Rigorous Imprisonment for life and Rigorous Imprisonment for five years respectively for the aforesaid two charges. 2. The prosecution case is based upon circumstantial evidence. As per Fardbeyan of the informant Suresh Paswan (P.W. 10), his son Ritesh Kumar aged about 8 years went out to play at about 6.30 P.M. on 11.2.1998 along with another young boy Sonu Paswan aged about 7 years. They were playing in front of Darwaja of the appellant, a neighbour. At about 7 P.M. when Ritesh did not return then a search started with the help of Shyam Paswan (P.W.6) and Baidyanath Paswan (P.W. 7). Sonu Paswan (P.W. 2) on enquiry disclosed that while he was playing with Ritesh in front of Darwaja of this appellant then the appellant, his mother and his sister gave them "Dalmot" and after some time Ritesh was asked by the appellant to take out husk from "Bhuskar" (enclosed space with small opening for storage of husk). Allegedly, Sonu further disclosed that he also started going towards Bhuskar but the appellant scolded him and thereupon Sonu came back to his house. Informant along with other neighbours went to Darwaja and Bhuskar of the appellant and in course of search of the Bhuskar he found an empty plastic gunny bag as well as another gunny bag in which some heavy article was kept and the mouth of the gunny bag was tied. The informant wanted to open the gunny . bag but allegedly mother of the appellant informed that it was containing Khalli (Oil Cakes). Thereafter search was continued in the vicinity and suddenly some people shouted that Ram Babu Paswan the appellant had been spotted throwing a gunny bag in the tank of Gobar Gas Plant belonging to one Lakshmishwar Chaudhary. The informant wanted to open the gunny . bag but allegedly mother of the appellant informed that it was containing Khalli (Oil Cakes). Thereafter search was continued in the vicinity and suddenly some people shouted that Ram Babu Paswan the appellant had been spotted throwing a gunny bag in the tank of Gobar Gas Plant belonging to one Lakshmishwar Chaudhary. On such hulla, the informant ran and was informed by several co-villagers including Deepak Paswan (P.W. 3), Shyam Paswan (P.W. 6) and Ganesh Paswan (P.W. 9) that Ram Babu Paswan, the appellant has thrown a gunny bag in the tank. Several villagers arrived and Bharat Paswan (P.W. 5) put his hand in the tank and took out a gunny bag. When it was opened then the dead body of Ritesh was found therein. The neck was found to have been strangulated with the help of a cotton rope and that appeared to be the cause of death. The informant disclosed that two days earlier the accused appellant had purchased a Bidi for smoking and when he asked for match box then informants mother did not oblige him and allegedly the appellant gave threat on account of sarcastic reply of informants mother. It was also alleged that the appellant is a drunkard and of criminal character and had committed the murder with the help of his other family members because the informant used to object to his criminal activities. 3. The Fardbeyan of the informant Suresh Paswan was recorded by Sub-Inspector of Police, S.Khan, Officer-lncharge, Dalsingsarai Police Station (P.W. 12) in the village at 23.00 hours at the place where the dead body was recovered from the tank and was lying. For some reason it appears that the inquest report was prepared by P.W. 12 in the next morning i.e. at about 6 A.M. on 12.2.1998. The seizure list showing seizure of the plastic gunny bag was also prepared on 12.2.98 at 6.15 A.M. After initial investigation by P.W. 12, the investigation was taken over by the new Officer-lncharge of Darsingsarai Police Station, Manindra Kumar Sinha, (P.W. 13) who also examined some witnesses, completed investigation and submitted chargesheet against all the four accused persons. The first charge sheet was submitted in respect of the appellant and his mother and the second charge sheet was against other two co-accused, the father and sister of the appellant. The first charge sheet was submitted in respect of the appellant and his mother and the second charge sheet was against other two co-accused, the father and sister of the appellant. In course of trial the accused persons pleaded not guilty to the charges and after trial three of the accused persons were acquitted but the appellant was convicted by the impugned judgment already noticed above. 4. In order to prove the charges, the prosecution has examined altogether 13 witnesses. P.W. 1, Shibu Paswan is a co-villager of the parties who claims to have seen the deceased playing with Sonu in front of Darwaja of Mahendra Paswan, father of the appellant at about 6.30 P.M. He came back from another village at about 9 P.M. and found the family members of the informant searching for Ritesh and he disclosed to them that in the evening he had seen Ritesh playing in front of Darwaja of Mahendra Paswan. He has claimed that he does not know anything more about the occurrence. He has also deposed that in the same night the dead body of Ritesh was recovered from a tank of Gobar Gas plant of Lakshmishwar Chaudhary and the dead body was found kept in side in a plastic gunny bag. Nothing worth noticing has been elicited from the cross-examination of this witness except that the Sub-Inspector had not recorded his statement. Thus, it appears that he has been examined as a witness for the first time in Court but he is neither inimical to the accused persons nor interested. In fact his deposition shows that he has not claimed to know the entire prosecution case and has confined himself only to those facts which were in his knowledge and were relevant for the case. 5. P.W. 2, Sonu Kumar is a young boy who allegedly disclosed to the informant and others that he and Ritesh were given Dalmot by the accused persons and then he was scolded by the appellant on which he went back to his house and Ritesh had been asked by the accused appellant to take out husk from the Bhuskar. Unfortunately, P.W. 2 was not found matured enough to be examined as a witness only because he could not answer certain questions put to him by the Trial Court. Unfortunately, P.W. 2 was not found matured enough to be examined as a witness only because he could not answer certain questions put to him by the Trial Court. A perusal of those questions shows that the questions purported to test the general knowledge of the boy by asking regarding number of months in a year and number of days in a week and how many days the school remains closed. He was also asked to count numbers in response to which he counted up to 30 only and gave an answer that he did not know multiplication and did not have sense of directions. Although P.W. 2 has replied that he was a student of preparatory class before Class-I but he could count up to 30 and was aware that school remain closed on Sunday. His age was assessed by the Court to be 5 years and as per prosecution case he was a very important witness who had disclosed that he has seen the deceased last with the appellant who had asked him to take out husk from the Bhuskar after giving him some Dalmot. The question of general knowledge regarding number of months in a year and number of days in a week should not have been put to a witness aged five years who admittedly had not attended even Class-I. The testing of the witness was not on proper lines. He not only gave out his name, his fathers name but also gave out his address as well as Class where he was studying. This shows that witness had understanding and should have been allowed to be examined. Such error by the Trial Court cannot be allowed to effect the prosecution case on the ground that Sonu Kumar (P.W. 2) did not corroborate the claim of the informant and other witnesses that he had disclosed the esseniial facts showing that the deceased was last seen by him with the appellant. The fact that the dead body was found in a gunny bag which is usually used for taking husk to other places prima facie corroborates the claim of the prosecution that Sonu had seen the deceased with the appellant when the appellant requested the deceased boy to take out husk from his Bhuskar. 6. The fact that the dead body was found in a gunny bag which is usually used for taking husk to other places prima facie corroborates the claim of the prosecution that Sonu had seen the deceased with the appellant when the appellant requested the deceased boy to take out husk from his Bhuskar. 6. P.W. 3 Deepak Paswan, P.W. 6 Shyam Paswan and P.W. 9, Ganesh Paswan are the material prosecution witnesses who have proved different crucial circumstances on which the prosecution case is founded but before considering their evidence it may be noticed that P.W. 4, Arun Paswan, P.W. 5, Bharat Paswan, P.W. 7 Baidyanath Paswan and P.W. 8, Geeta Paswan have been declared hostile. Turning of such witnesses hostile is not at all surprising because from the facts it is apparent that both the parties are close neighbours and the occurrence took place in Paswan Tola of the village and in course of time some witnesses developed apparent reluctance to depose against some members of their own caste who are apparently co-villagers. 7. P.W. 3, Deepak Paswan, P.W. 6 Shyam Paswan and P.W. 9, Ganesh Paswan are witnesses whose names find mentioned in the fardbeyan and hence their presence in the village at the time of the alleged occurrence does not appear to be in any doubt. These three witnesses like the informant, P.W. 10 have clearly deposed that they heard from others and from Sonu (P.W. 2) about the deceased Ritesh being last seen with the appellant. They have claimed to be eye witnesses of the fact that in course of search for Ritesh they saw the appellant carrying a gunny bag on his head and on suspicion, when hulla was raised the appellant threw the gunny bag in the tank of Gobar Gas Plant belonging to co-villager Lakshmishwar Chaudhary. They have also deposed that some people tried to chase the appellant but he managed to scale over a boundary wall and flee away. They have also deposed that the villagers assembled and the gunny bag containing dead body of Ritesh was taken out from the tank which was about 4 feet deep. 8. It has been submitted on behalf of the appellant that P.W. 6 has admitted to some past enmity between him and family members of the appellant and therefore he should not be relied upon. 8. It has been submitted on behalf of the appellant that P.W. 6 has admitted to some past enmity between him and family members of the appellant and therefore he should not be relied upon. A careful scrutiny on this point reveals that, although P.W. 6 fairly admitted regarding an earlier litigation with one Yogeshwar Paswan in which father of the appellant had deposed as a witness and that earlier he had lodged a case of arson against the appellant, his evidence on careful appraisal is found acceptable because basically the same facts have been deposed and proved by independent and reliable witnesses, such as P.Ws. 3 and 9. The evidence of these three witnesses corroborate the prosecution case as stated by the informant. P.W. 10 in his fardbeyan and in Court in all material aspects. 9. On behalf of appellant it has been submitted that since some of the witnesses have claimed to have seen the appellant moving with gunny bag on his head and throwing it in the tank in torch light, the prosecution case must be thrown out because torch was not produced before the I.O. It is a plea which deserves no serious consideration for two reasons. The witnesses and the appellant are not only co-villagers but are also from the same Tola and are well known to each other and therefore identification by villagers in the fact of the case cannot be doubted. Secondly, admittedly, search was being made by the villagers for the missing boy Ritesh Kumar and in such circumstances some people making search with Torch appears quite probable and acceptable because during night hours a search cannot be effective unless some source of light is carried by the search party. Hence, this plea is found to be without any substance. The next issue raised by learned counsel for the appellant is that the prosecution story of search appears to be absurd and improbable because even if dead body of a boy was kept in a gunny bag, the accused cannot commit such a risky act so as to carry the gunny bag containing the dead body at night when search was still going on. This submission is only an invitation to the Court to indulge in probabilities for the purpose of raising doubt. Such hypothetical issue does not require deeper consideration when the witnesses are found to be trust-worthy and reliable. This submission is only an invitation to the Court to indulge in probabilities for the purpose of raising doubt. Such hypothetical issue does not require deeper consideration when the witnesses are found to be trust-worthy and reliable. It appears from the deposition of witnesses that the search continued in different directions after enquiry at the Darwaja and Bhuskar of the appellant and it was after about two hours that the appellant allegedly took the chance of disposing of the gunny bag containing dead body of the deceased boy. It is very difficult to analyse the reasons and motives of any particular act of perpetrator of crime. If an incriminating dead body was concealed some where in the premises of the accused, knowing that search of the body would result in fastening the guilt it was probable that further search would be made of the Bhuskar or the house of the accused appellant in view of those very facts which had led to initial enquiry by the informant at the Darwaja and Bhuskar of the appellant. In such a situation attempt to take away the dead body by keeping it in a gunny bag cannot be said to be so improbable or absurd as to disbelieve the prosecution witnesses discussed above, who were otherwise found reliable. Hence, this submission is also without any merits. 10. On the point of motive, it was submitted that since the verbal threat by the appellant was against mother of the informant, she should have been examined as a witness and such motive should not be accepted as proved only on the basis of evidence of the informant, P.W. 10, in paragraph-10 of his deposition has claimed to be present at the time of verbal threat and is therefore quite competent and reliable. The submission is that the alleged motive cannot be sufficient for committing a heinous offence of killing of a young boy. It would be very unsafe to accept such a submission because it is difficult to go inside the mind of a person who commits offence of un-usual nature in which a young boy has been strangulated and killed. In such a crime the reason or the motive may not appear to be very normal because the crime itself is not a natural one. In such a crime the reason or the motive may not appear to be very normal because the crime itself is not a natural one. Such a crime of the wrong doer may have been caused due to sarcastic comments of mother of the informant who allegedly, refused to lend match box when the appellant bought Bidi for smoking. 11. In the present case, the prosecution has been put to some dis-advantage because of Courts decision not to permit examination of P.W. 2 as a witness but even the materials on record appear to be sufficiently reliable in accepting the allegation that this appellant was carrying the gunny bag containing dead body of the victim boy and when some persons saw and raised hulla, he threw the gunny bag in the tank which according to the Investigating Officer, contained water. It has come in the evidence that there were two tanks in the Gobar Gas Plant in question. One of the tank was covered and the other tank which had no lid was used for throwing gunny bag. According to the I.O. in that tank there was water. In view of aforesaid facts proved by the prosecution, particularly on the basis of evidence of P.Ws. 3,6 and 9, a presumption under Sec. 106 of the Evidence Act would arise against the appellant/accused and the burden of proving any fact to explain the carrying of dead body in a gunny bag would be upon the accused/appellant. From the facts and circumstances proved in this case, the prosecution discharged the initial burden of establishing prima facie guilt of the accused/appellant and from the examination of the appellant under Sec. 313 Cr.P.C. it transpires that except denying the allegations, the appellant has not furnished any explanation by disclosing relevant facts regarding death or dead body of the de- ceased which must be presumed to be in his special knowledge. 12. Learned counsel for the appellant has placed reliance upon judgment of the Apex Court such as A.I.R. 1981 S.C. 765 (Shankar Lai Vs. State of Maharastra) and some recent judgments to submit that in a case of circumstantial evidence, the circumstances relied upon by the prosecution must be consistent with the hypothes is of the guilt of the accused and the circumstances must form a complete chain. State of Maharastra) and some recent judgments to submit that in a case of circumstantial evidence, the circumstances relied upon by the prosecution must be consistent with the hypothes is of the guilt of the accused and the circumstances must form a complete chain. The law, as indicated above is not at all in dispute and the only issue is whether the facts and circumstances proved by the Porsecution in this case warrant drawing up inference which is inconsistent with the innocence of the accused appellant. On careful scrutiny of all the evidence as well as the facts and circumstances proved by the prosecution witnesses, we have no hesitation in holding that the circumstances proved are compatible only with the guilt of the appellant/accused because he not only threw the gunny bag containing the dead body in the tank but also successfully fled away from the chase given to him and has subsequently during investigation or trial, failed to disclose any facts which may be within his knowledge only, to explain the circumstances prima facie showing him guilty of the offence of killing the deceased boy and disposing of his dead body in a manner so as to destroy the evidence of offence leading to death. Hence, we also find the appellant guilty of the offence of killing the deceased boy and destroying the evidence by throwing the dead body concealed in a gunny bag into a tank containing water. In fact, in view of lack of evidence against the other co-accused and their acquittal the Trial Court should have convicted the appellant under Sec. 302 and Sec. 201 of the I.P.C. without the aid of Sec. 34. The questions put to him disclose that relevant facts and circumstances were put to him for explanation and he has not been prejudicial in any manner because of his trial with other co-accused for the offence under Sections 302 and 201 I.P.C. with the aid of Section 34 of the I.P.C. In that view of the matter he is found guilty of the offence under Sections 302 and 201 I.P.C. The charge against the appellant shall stand modified and altered to that extent only. 13. With the above modification in the impugned judgment and order the appeal is dismissed.