Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 654 (PAT)

Subh Narain Uraon v. State of Bihar

2013-06-18

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2013
JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) 1. Above named appellants have impugned the judgment of conviction and order of sentence dated 7th July, 1990 passed by the learned Ist Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No. 109 of 1988 whereby and whereunder the appellants were held guilty for the offences punishable under sections 302/34 Indian Penal Code 364/34 IPC and 201/34 IPC and they were sentenced to undergo rigorous imprisonment for life for the offence under sections 302/34 Indian Penal Code, rigorous imprisonment for 10 years for the offence under sections 364/34 IPC and rigorous imprisonment for 7 years for the offence under section 201/34 IPC. The sentences were ordered to run concurrently. 2. Dhewar Yadav (deceased) the brother of informant Jhapas Yadav (PW 7) started for village Hasnapur to return Rs. 3000/- to Lal Bachhan Satwar (PW 3declared hostile) and taking Rs. 1,000/- for the purpose of cultivation and for other purpose. Earlier he used to stay in the house of Bunna Yadav (not examined) for the purpose of agriculture. When he (deceased) did not return till 14 days, the informant, thereafter, requested his father-in-law Gobardhan Yadav (PW 6) to ascertain the whereabouts. On the day following the informant’s father-in-law (PW 6) told that Dhewar had stayed in the house of Bunna Yadav but it was told by Bunna Yadav (not examined) and Virendra Yadav (appellant no. 3) that Dhewar had left the house six days prior to lodging of the FIR. It was also told PW 6 that Dhewar was saying to meet with Kripal Tiwary of village Laxmipur. Thereafter, PW 6 with Virendra Yadav tried to ascertain the location of Dhewar but in course of search he received information that a bag containing some papers and cloth was found at the Darwaja of Kripal Tiwary (not examined). It was informed that some unknown had kept the bag in his absence. All traces to locate the whereabouts resulted in vacuum, so the case was lodged against unknown but suspicion was raised against Virendra Yadav. Fard-beyan of Jhapas Yadav (PW 7) was witnessed by Gobardhan Yadav (PW 6) led to registration of Semra P.S. Case No. 18 of 1986 dated 17.7.1986 under section 364 of the Indian Penal Code. Vide order dated 21.7.1986 sections 302, 201, 406/34 of the Indian Penal Code were added. After investigation chargesheet was submitted and cognizance was taken. Fard-beyan of Jhapas Yadav (PW 7) was witnessed by Gobardhan Yadav (PW 6) led to registration of Semra P.S. Case No. 18 of 1986 dated 17.7.1986 under section 364 of the Indian Penal Code. Vide order dated 21.7.1986 sections 302, 201, 406/34 of the Indian Penal Code were added. After investigation chargesheet was submitted and cognizance was taken. After supplying the police papers, the case was committed to the Court of Sessions. Charges under sections 201/34 IPC, 364/34 IPC and 302/34 IPC were explained to all the three appellants to which they pleaded their innocence and the trial proceeded. 3. From the trend of cross-examination as well as from the suggestions given to the witnesses, it is apparent that the defence was merely of false implication primarily at the behest of the Investigating officer. 4. The trial court after considering the evidences on the record and after hearing the submissions, came to the opinion that the prosecution has succeeded in proving the charges against the accused persons beyond the shadow of all reasonable doubts, so the judgment of conviction and sentence was recorded. 5. Now this Court will see as to whether the judgment of conviction and sentence is correct or not. 6. In order to prove the charges the prosecution has examined altogether 8 witnesses. They are: Lakshman Mahto (PW 1), Kanan Mahto (PW 2), Lal Bachan Saithwar (PW 3), Bechan Mahato (PW 4), Ganesh Mahato (PW 5), Gobardhan Yadav (PW 6), Jhapas Yadav (PW 7) and the Investigating Officer Ignasious Minz (PW 8). The informant is PW 7 whereas his father-in-law Gobardhan Yadav- the attesting witness of the FIR is PW 6. PWs 1, 3 and 4 have been declared hostile by the prosecution and they have been cross-examined by the prosecution. PWs 2 and 5 were tendered. Therefore, only two material witnesses remained on behalf of the prosecution. 7. PW 7 has deposed that Dhewar Yadav was his full brother. He was having his agriculture at village Hasnapur under Semra Police Station. He had been to that village for the purpose of agriculture assignment. He was carrying a bag containing some documents, cash and cloths. Dhewar Yadav stayed at the house of Buna Yadav- father of Virendra Yadav. He was carrying Rs. 3000/- for returning to Lal Bechan Saitwar and Rs. 1000/- for his personal expense. He had been to that village for the purpose of agriculture assignment. He was carrying a bag containing some documents, cash and cloths. Dhewar Yadav stayed at the house of Buna Yadav- father of Virendra Yadav. He was carrying Rs. 3000/- for returning to Lal Bechan Saitwar and Rs. 1000/- for his personal expense. The informant’s brother did not return for about fortnight, so PW 6 was requested to ascertain whereabouts of Dhewar. PW 6 accordingly, obliged to went to Bunna where he was told by Bunna and Virendra that Dhewar had gone to Ram Kripal Tiwary (not examined) where no body was found and so the bag was kept there in his absence. All efforts to locate Dhewar failed and the case was registered. In course of investigation one HMT 200 watch and one Tericot Kurta containing blood stain besides broken bone of chest were recovered. It was shown to the informant who claimed that these articles were taken by Dhewar Yadav. 8. PW 7 has been supported by PW 6 to the extent that he has claimed that he had gone to ascertain whereabout of Dhewar but no trace was made. He also stated that after registration of the case one white Kurta was seized, it was containing blood. 9. Only on the basis of evidence of these two witnesses, order of conviction has been recorded. Though the Investigating Officer has tried to support the evidence of seizure of some parts of skeleton which led to preparation of inquest report. The inquest report (Ext. 3) mentions that the seized articles which led to preparation of inquest report were six bones of chest and two bones of arms. Only on that basis it was suspected that the person whose bones were seized was assaulted by sharp cutting weapon and it was claimed that the person was Dhewar Yadav. That is the sole identification of the deceased. The seizure was the part of sand of Mashan River which was described to be shallow at the time of occurrence by the witnesses. Though one statement under section 164 Cr.P.C. has been recorded (Ext. 4) but the scriber of the statement has not been examined and there is no explanation as to why he was not examined. There is no direct evidence in the present case. The case is wholly based upon the circumstantial evidence. Though one statement under section 164 Cr.P.C. has been recorded (Ext. 4) but the scriber of the statement has not been examined and there is no explanation as to why he was not examined. There is no direct evidence in the present case. The case is wholly based upon the circumstantial evidence. In a case of circumstantial evidence the rule of prudence is that the circumstances gathered in course of investigation which led to one and only hypothesis that it was the conduct of the accused alone which was responsible for the offence. There should not be any escape goat when the prosecution is placing its case on circumstantial evidence. In the present case, the corpus was claimed to be of Dhewar Yadav but no part of the seized bone was ever identified by any family members of the deceased. It was difficult to ascertain as to whether the corpus was of human being or of any animal and the Investigating Officer without getting assistance of any scientific investigation came straightway to his conclusion that it was not only of human but was of Dhewar Yadav. This was surprising part of his investigation. Though it was claimed that the Kurta containing blood was seized but there is no explanation as to why it was not chemically examined. The chemical examination to some extent would have established that at least it was soaked with human blood. The Investigating Officer even did not take such precaution and straightway came to the conclusion that it was of the deceased. The articles seized were never put on test identification parade and it was presumed by the I. O. that these were of the deceased. The settled principle of law is that if the circumstances gathered do not lead any conclusive proof that it was the conduct of the accused alone, then the benefit was to be passed to the accused. 10. In the present case there was no evidence at all but the order of conviction has been recorded. We see no reason to uphold the judgment of conviction and order of sentence. Accordingly, the judgment of conviction and order of sentence is set aside and this appeal is allowed. The appellants are acquitted. The appellants are on bail, they are discharged from the liabilities of their respective bail bonds. Appeal allowed.