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2014 DIGILAW 734 (PAT)

Dina Nath Paswan v. State of Bihar

2014-07-03

JITENDRA MOHAN SHARMA, NAVANITI PRASAD SINGH

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ORAL JUDGMENT NAVANITI PRASAD SINGH, JJ. The four appellants have preferred this appeal against the judgment of conviction and sentence dated 30.04.1991 passed by Additional Sessions Judge IV, Patna in Sessions Trial No 741 of 1987. By the aforesaid judgment, all the four appellants were convicted under Sections 302/34 and 201/34 of Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for life for both the offences, there being no separate sentence under Section 201 of IPC. 2. Heard Shri Ajay Kumar Thakur, learned counsel for the appellants and Shri Ajay Mishra, learned Additional Public Prosecutor. 3. Mr Ajay Kumar Thakur, learned counsel for the appellants raises a very short issue. He submits that reading the judgment of the trial Court, it would be seen that the appellants have been convicted only on basis of the alleged statement of one Ramnandan Singh (PW 7) that the deceased was last seen with the accused persons. Beyond this, there is nothing else to connect the appellants to the deceased. He says that the statement made in the Court cannot at all be relied because it has come virtually for the first time in course of the investigation after one year of the occurrence. 4. In order to appreciate this, we must first notice the prosecution case and the events. The informant (PW 4), in his complaint filed before Judicial Magistrate (JM), 01st Class, Patna on 30.04.1987, alleges that on 04.07.1986, his son Krishna Yadav aged about 22 years had gone to the market to purchase vegetables but did not return. Frantic searches were made but nothing was known. Accordingly, on 19.07.1986, he lodged a sanha with the Phulwarisharif Police Station (PS), inter alia, stating that his son had gone missing and nothing more is stated therein. On 12.03.1987, a highly decomposed body virtually a skeleton was recovered from a well in Phulwarisharif Block. As it was unidentified, it was so duly recorded as a UD case. The informant having come to know that a dead body was recovered immediately identified the same as his son from few bits and pieces of cloths on the skeleton. On 12.03.1987, a highly decomposed body virtually a skeleton was recovered from a well in Phulwarisharif Block. As it was unidentified, it was so duly recorded as a UD case. The informant having come to know that a dead body was recovered immediately identified the same as his son from few bits and pieces of cloths on the skeleton. Subsequently, on 30.04.1987, a complaint is filed by the informant before the JM, 01st Class, Patna, inter alia alleging that his son was named as an accused for the alleged murder of the son of Mahendra Paswan and Mahendra Paswan and the appellants had been threatening to take revenge. The complainant, thus, suspected that they had conspired and killed his son. Upon this complaint being filed, the JM referred the same to the police for investigation under Section 156 (3) of Criminal Procedure Code (Cr P C). Pursuant thereto, the matter was investigated and chargesheet was filed against the appellants. Mahendra Paswan had died in the meantime. The appellants were charged for offence under Sections 302/201/34 of IPC and having pleaded not guilty, they were tried. 5. From the aforesaid sequence of events, Shri Ajay Kumar Thakur, learned counsel for the appellants points out as under noted: 04.07.1986 : Krishna Yadav (22 years), son of informant (PW 4) becomes traceless. 19.07.1986 : Sanha lodged by informant (PW 4) with Phulwarisharif PS regarding his son missing. No suspicion or allegation against any person. 12.03.1987 : Highly decomposed body recovered from a well in Phulwarisharif. Immediately, informant (PW 4) identifies it as his son from few bits and pieces of cloths found with the decomposed body. 30.04.1987: Written complaint filed by informant/complainant (PW 4) before JM, 01st Class, Patna alleging that he had been receiving threats of revenge from Mahendra Paswan whose son had been killed and in that case, one of the accused was his son (deceased). He suspected that Mahendra Paswan alongwith appellants were responsible to death of his son. Nothing more was stated though in the complaint, one Ramnandan Singh (PW 7) was named as a witness. 6. Shri Thakur, learned counsel submits that this sequence of events, spread over almost a year, would show that there was no statement or allegation that any one had last seen the deceased with Mahendra Paswan and/or the appellants. Nothing more was stated though in the complaint, one Ramnandan Singh (PW 7) was named as a witness. 6. Shri Thakur, learned counsel submits that this sequence of events, spread over almost a year, would show that there was no statement or allegation that any one had last seen the deceased with Mahendra Paswan and/or the appellants. It is only once the complaint is referred to the police for investigation under Section 156 (3), Cr P C that for the first time, Ramnandan Singh (PW 7), in course of investigation, discloses that almost a year back on the day when the son of the informant became traceless, he had seen Mahendra Paswan and the appellants with the deceased and this is what he reiterates in Court. This fact is neither mentioned in the sanha nor is it mentioned in the complaint even though the said Ramnandan Singh is named as a witness and this is the solitary evidence on basis of which the appellants have been convicted on basis of the theory of last seen together. 7. Having considered the matter, we are of the view that this statement of Ramnandan Singh (PW 7) cannot be relied upon much less for the purposes of convicting the appellants for the simple reason that Ramnandan Singh (PW 7) was known to the informant/complainant as they were related as Sala-Bahnoi and the sasural of informant was in the same tola as Ramnandan Singh (PW 7). If we keep this relationship in mind then if there was any truth in the statement of Ramnandan Singh (PW 7), it should have been mentioned at the very first instance when sanha was lodged on 19.07.1986 which was lodged after 15 days of the disappearance of Krishna Yadav. Further, if there was any truth, there was ample time thereafter to name the appellants. Even after the decomposed body was found on 12.03.1987 and identified then disclosure could have been made. Even thereafter, when after one and a half months, the complaint was filed showing Ramnandan Singh (PW 7) as one of the witnesses, there ought to have been a disclosure thereof but there was not even a suggestion to that effect. All that was stated was that the complainant/informant suspected the hands of Mahdndra Paswan and the appellants. Even thereafter, when after one and a half months, the complaint was filed showing Ramnandan Singh (PW 7) as one of the witnesses, there ought to have been a disclosure thereof but there was not even a suggestion to that effect. All that was stated was that the complainant/informant suspected the hands of Mahdndra Paswan and the appellants. This clearly establishes that introduction of this fact of last seen is a well thought out afterthought otherwise there is no other evidence to implicate the appellants at all. 8. In that view of the matter, we need not discuss any other evidence as this solitary evidence does not inspire confidence at all. We have no option in such circumstances to hold that there is no evidence on record to justify the conviction of the appellants. 9. As a consequence, the appeal is allowed. The conviction and the sentence are set aside. The appellants are freed from their bail bonds.