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2014 DIGILAW 1206 (PAT)

Sakaldeo Prasad v. The State of Bihar

2014-12-08

JITENDRA MOHAN SHARMA, NAVANITI PRASAD SINGH

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JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) The present appeal by the five appellants has been filed against the judgment of conviction and order of sentence dated 18.12.1991 passed by the 2nd Additional Sessions Judge II, Patna in Sessions Trial No. 950 of 1989 by which the appellants have been convicted for an offence punishable under Sections 364, 302, 201 all with the aid of Section 34 of the Indian Penal Code and sentenced to imprisonment for life and other varying terms to run concurrently. 2. The prosecution case is that the appellants kidnapped Santosh Kumar @ Guddu, nine years old son of the informant Acchay Mani Prasad (PW 1) and sent a ransom note thereafter, killed the child and threw him in the agriculture field where the body was recovered after about six days and identified as that of Guddu. 3. Learned counsel for the appellants submits that there is no evidence whatsoever to convict the appellants. 4. We cannot, but agree. 5. In order to establish the charge, the prosecution has examined as many as 15 witnesses. It starts with the informant PW 1, Acchay Mani Prasad, the father of the victim boy. He gave his written fard-beyan to Ram Padarat Singh (PW 14) on 12.3.1989 in the early morning, inter alia, alleging that on 5.3.1989 his son had gone to the house of Shiv Dayal Prasad (PW 5) to see Mahabharat Serial on the Television. He came home, eat his food and went out to play. He did not return home. The informant went searching to different places including in the town of Patna where the informant’s wife had come with the other son to enable him to take matriculation examination but could not found him. On 7th of March, 1989 he informed the Police Station that his son was missing. On 9.3.1989 an inland letter was dropped in the house (not through post) making a demand of Rs. 40,000/- as ransom when he was at Patna. On 11.3.1989 he came to know from his brother Dev Narayan Prasad (not examined) that the dead body of his son was found lying in wheat field in highly decomposed state. He went there and found people and Police party there and identified the dead body from the clothes worn by the child. On 11.3.1989 he came to know from his brother Dev Narayan Prasad (not examined) that the dead body of his son was found lying in wheat field in highly decomposed state. He went there and found people and Police party there and identified the dead body from the clothes worn by the child. Upon this fard-beyan, being received by the Police, a formal FIR was registered, inquest report was prepared, the dead body was sent for post mortem examination, Police took up the investigation and recorded the statement of various persons. 6. This witness, then reveals as also other witnesses that on 4th of August, 1989, the son of PW 2, Ram Nagina Prasad, who was Manager in local Gramin Bank, went missing, allegedly, as witnesses would state that on the next date they found the appellants running, they were able to apprehend one Sanjay Kumar Mistry who had been chargesheeted but later his trial has been separated as he was a juvenile and his matter was referred to Juvenile Justice Board. This Sanjay was then tide to Ashok tree and allegedly, in front of villagers and Darogajee, he confessed that he along with other appellants had kidnapped not only the son of Manager of Gramin Bank (PW 2) but also the son of the informant Achhay Mani Prasad (PW 1) and both had been killed. He is further alleged to have confessed that letters of ransom were written by appellant Kapildev Prasad. This was an extra judicial confession as the prosecution would submit. There is yet another facet of prosecution evidence. The letter that was received by the informant (PW 1) on 9.3.1989 was handed over to the Police on 14.3.1989. In order to ascertain the person whose hand writing it was, the Police went around the village asking people to give writing samples including from appellant Kapildev Prasad. They were all then, through the Judicial Magistrate sent for forensic examination to hand writing expert at Forensic Science Laboratory, Patna. The expert report has come and the forensic expert has been examined as PW 15, Shri A. K. Verma, and at this stage itself we would like to refer to the report of handwriting expert which is Exts. 9 and 10 wherein the expert clearly states that they cannot form a definite opinion whether the letter of ransom was written by appellant Kapildev Prasad. 9 and 10 wherein the expert clearly states that they cannot form a definite opinion whether the letter of ransom was written by appellant Kapildev Prasad. This should have concluded the proceeding itself, but the prosecution did not rest. It got PW 8 Yogendra Prasad and PW 10 Nawal Kishore Prasad, who are cousins of the informant, who now turn up and say that when the letter was received on 9.3.1989 they immediately recognized it to be the handwriting of appellant Kapildev Prasad but both of them admit in their cross-examination that they did not disclose this fact to any one and it is because of this that in the fard-beyan it is not mentioned that anyone had recognized the handwriting so much so that even in further statement/re-statement, they admit that they had not disclosed to the Police this fact. The informant in his deposition in the court states that till the date of deposition in the court which is about 2 years after the incident, he is unaware whose handwriting that was. This raises serious questions as to why the identity of the author of the ransom note was withheld by the prosecution witnesses when that was a substantive evidence. Learned counsel for the appellant states that one needs to look to the source of identification as well. The witnesses admit that they had studied in school together about 10-12 years back and from that memory and impression they were able to identify the handwriting in the present. This is too spacious a plea to be accepted by any court. If they were so sanguine about the author of the handwriting why they did not disclose it to any one at any point of time is not known. They virtually come for the first time in the court to depose this fact and it is based upon this appreciation of evidence that the trial court binds the appellant Kapildev Prasad to the kidnapping and murder of the boy. But then what is the material against others. The trial judge says that other witnesses have stated that Sanjay Kumar Mistry had said about involvement of others. Involvement of others cannot be ruled out. To say the least, we are surprised upon the attitude and approach of the trial court. But then what is the material against others. The trial judge says that other witnesses have stated that Sanjay Kumar Mistry had said about involvement of others. Involvement of others cannot be ruled out. To say the least, we are surprised upon the attitude and approach of the trial court. We are dealing with a criminal case where a person can only be found guilty upon being proving so beyond reasonable doubt. If there is an iota of doubt, benefit has to go to the accused. Criminal cases are not to be decided like civil matters based on preponderance of probability. That is a distinction between appreciation of evidence in civil cases and in criminal cases. The trial court lost sight of this distinction. 7. Thus there are only two circumstances which the prosecution has been able to bring on record to get a conviction. The first is the letter. The letter as noted above is not given to the Police for five days. Then, even though two witnesses i.e. PW 8 and PW 10 who are cousins of the informant state that they recognized the handwriting at the first instance itself. They never disclosed this fact to any one right through the investigation and come up to state this fact for the first time in the court. They are not reliable. The report of the expert from the Forensic Science Laboratory, Patna is not conclusive in any matter because that report itself says that they cannot form a definite opinion whether it is the handwriting of Kapildev Prasad or not. Therefore, when the expert is in doubt and there is no other means of identification, then, unfortunately, we cannot held that the letters are definitely written by Kapildev Prasad. Therefore, this evidence cannot go against the appellants. 8. The other set of circumstances being used is the extra judicial confession of Sanjay Kumar Mistry who was allegedly got tide to a tree and he had made confession. The witnesses have stated that the confession was recorded by Darogajee. No such confession has been brought on record in this case. Though the witnesses say that they had disclosed the confession as made by Sanjay Kumar Mistry to the investigating officer, when we have investigating officer he gives a totally different version. Firstly, he denies that any confession was made in front of him or was recorded by him. No such confession has been brought on record in this case. Though the witnesses say that they had disclosed the confession as made by Sanjay Kumar Mistry to the investigating officer, when we have investigating officer he gives a totally different version. Firstly, he denies that any confession was made in front of him or was recorded by him. He goes to the extent of saying that no one informed him when Sanjay Kumar Mistry had made any confession much less confession implicating the appellants. He is questioned about the statements made by the witnesses with regard to confession. He after looking into the case diary states that none of the witnesses had disclosed to him the story of confession as is being spun by them in the court. Therefore, this aspect of the matter again is not a legal evidence to implicate much less get the conviction against the appellants. If these two were excluded, then learned counsel for the appellants is correct that there is absolutely no evidence available on record to convict the appellants. No doubt, the child had been kidnapped and killed but who killed remains a mystery. All we can say is that it is because of quality of investigation. On basis of materials on record and legal evidence it cannot be held in any circumstances that the appellants are responsible for the said crime. Accordingly, we have no option but to allow this appeal setting aside the judgment of conviction and order of sentence. The appellants are freed from the liabilities of their bail bonds. Appeal allowed.