ORAL JUDGMENT Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH, J. The sole appellant, having been convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to life imprisonment vide judgment and order dated 3.10.1991 passed by the learned 2nd Additional Sessions Judge, Bhagalpur in Sessions Trial No. 512 of 1991, has filed this appeal. 2. On behalf of the appellant, it is briefly submitted that to establish the charge of murder, the prosecution, first, must prove that a person had been killed for which it would be necessary to prove the death and recovery of the dead body. His submission is that allegedly two persons i.e. Pannu and Salim are said to have been killed which fact is sought to be established by the evidence of PW 7 Bibi Jainab, the mother of Pannu, and PW 8 Bibi Jaibun, the wife of Salim. PW 7 in her chief claims that the body was carried to Puraini where a camp was established for the Muslims after the riots but what happened to body, thereafter, is not brought on record. There are no inquest reports. There are neither any post mortem reports nor any evidence of burial. In relation to PW 8, she admits that post mortem was conducted at Bhagalpur in respect of Salim but again there is neither any evidence of inquest nor any post mortem report whatsoever or any evidence of burial. He would, thus, submit that there is no evidence establishing death much less murder. 3. This apart, it is submitted that though the incident had taken place on 26.10.1989 and the village Chaukidar, on the same day after the incident, lodged the FIR being Jagdishpur P.S. Case No. 162 of 1989, there was no mention of any loss of life or even of any injury caused to any person. For the first time, the claim in respect of loss of a life was made when a purported FIR was sought to be filed on 1.12.1989 i.e. more than a month later which was registered as Jagdishpur P.S. Case No. 200 of 1989, which, in fact, would in terms of Section 161 of the Code of Criminal Procedure only treated as the further statement of witness in course of investigation. Unfortunately, the Trial Court, where the second FIR was brought on evidence, took it as a substantive piece of evidence for being marked as Ext.-4. 4. It would be submitted that there is no explanation for this belated claim. It is only after the Government announced compensation packages for Muslim victims, this false claim was raised. On the other hand, Mr. Ajay Mishra, learned APP, submitted that it was a case after the riots. The delay was natural and the court should not consider it unexplained. We have to see the evidence and consider the rival submissions in these regards. 5. In order to establish the prosecution case, the prosecution has, in all, examined 12 witnesses and proved three documents. The three documents that have been brought on record are the formal FIR of Jagdishpur P.S. Case No. 162 of 1989 dated 26.10.1989 lodged by Deep Narayan Paswan (PW 9) the village Chaukidar, the next is the sanction order of prosecution purportedly granted by the District Magistrate-cum- Collector, Bhagalpur for prosecution of, inter alia, the appellant in view of Section 196 of the Code of Criminal Procedure for an offence under Section 153 A of the Indian Penal Code and the third was the FIR of Jagdishpur P.S. Case No. 200 of 1989 dated 1.12.1989 which was lodged by one Allauddin regarding the alleged murder of his younger brother Pannu and grievous injury caused to him, allegedly, by the appellant and one Gopal Paswan on the same day for which the first case, Jagdishpur P.S. Case No. 162 of 1989 was lodged. It may be noted that Allauddin the informant of the second FIR was not produced by the prosecution in the Court at all. Instead his mother came forward and deposed as PW 7. 6. The case of the prosecution is that on 26.10.1989 a mob of over 2000 persons attacked the village Tagepur shouting ‘Jai Bajrangbali’. The Muslim inhabitants of the Muslim tola of the village ran out of their houses and they were given shelter by one Bhudev Chaudhary (PW 1) but their houses were burnt and house hold articles were also looted. This led to the first FIR by the village Chowkidar (PW 9). The Muslim inhabitants of the Muslim tola of the village ran out of their houses and they were given shelter by one Bhudev Chaudhary (PW 1) but their houses were burnt and house hold articles were also looted. This led to the first FIR by the village Chowkidar (PW 9). Then, in the same transaction, allegedly, two persons were killed; one Pannu and the other Salim whereas Allauddin, the informant of the second case, was grievously injured as his heel had been cut. The Muslim community were, then, moved to Puraini Camp next day which was established to give shelter to Muslim riot victims. This led to the second FIR after a month. This, in short, is the story sought to be set up by the prosecution and killing of Pannu is attributed to the appellant and one Gopal Paswan; whereas Salim is alleged to be killed by two other persons. In the first FIR the appellant has been named as Bijay Rai and the appellant has been roped in who is actually Bijay Mandal. It may also be noted that on perusing chargesheet and charges it appears that there is yet another Bijay Mandal who has been chargeseheeted and the judgment would also show that there are two persons named as Vijay Mandal on the trial. It may also be noted as we are informed that Gopal Paswan who was earlier absconding, has been tried separately and has already been acquitted on 7.4.2000 by 5th Additional Sessions Judge, Bhagalpur and the State has preferred no appeal. In this trial also except the appellant others have been acquitted. 7. Now, we will consider the evidence, in detail, of the prosecution witnesses. PW 1 is Bhudev Chaudhary. He is the person who gave shelter to the Muslims and it is in his house, PWs 7 and 8 had taken shelter initially. He specifically mentions the prosecution witnesses including Allauddin who was the informant of the second FIR having come and took shelter. He specifically states that none of them had named any person or identified any person. What is of greater significance is that he does not disclose of any injury to any person or killing or death of any person. He admits that next day the Police came and took all the Muslims to Puraini Camp. He specifically states that none of them had named any person or identified any person. What is of greater significance is that he does not disclose of any injury to any person or killing or death of any person. He admits that next day the Police came and took all the Muslims to Puraini Camp. It is important to note that there is no disclosure of any names or any person getting injured or any of the Muslims having disclosed anything to this witness with regard to injury or death as we would see, he was also the first person to be interrogated by the Police and he did not disclose any such thing to the Police. PW 2 is Md. Hanif, who is also a resident of the village and he is merely tendered. PW 3 is Md. Usman. He is also tendered and he states that at the time of occurrence he was at Bhagalpur and the Police had not taken any statement. PW 4 is Md. Hamid. He is also tendered but in cross-examination he admits that his village is only two kilometers from Puraini where, as noted above, the camp was established. PW 5 is Md. Jumman. He is also tendered but in his cross-examination he admits that Jagdishpur Police Station is about 2 miles from the village and contiguous to their village, there is a Police Out-Post where the Police personnel are posted. PW 6 is Md. Lokman. He in his chief states that over 2000 people had come, seeing them, he went to the house of Bhudev Chaudhary (PW 1). He could not recognize any one. His house was burnt. In his cross-examination he admits knowing Bhudev Chaudahry (PW 1) and he admits that along with him there were several others who were also hiding in the house of Bhudev Chaudahry including Bibi Jainub and Allauddin. He admits that the Police had taken his statement. Allauddin is the elder brother of the alleged deceased Pannu and Bibi Jainub (PW 7) is the mother of Pannu. Allauddin has lodged the second FIR but has not been examined in Court. This witness does not disclose that after the incident, when they were altogether hiding in the house of Bhudev Chaudhary, anyone had disclosed about the alleged killing of Pannu or he had seen Allauddin grievously injured or he had heard about Salim being killed. Allauddin has lodged the second FIR but has not been examined in Court. This witness does not disclose that after the incident, when they were altogether hiding in the house of Bhudev Chaudhary, anyone had disclosed about the alleged killing of Pannu or he had seen Allauddin grievously injured or he had heard about Salim being killed. What is of significance is that on the next day the Police had come but no one appears to have informed the Police about anything. 8. Then, we have PW 7, the mother of Pannu, who is said to have been killed, who is the younger brother of Allauddin who lodged the second FIR on 1.12.1989 in respect to the incident that had taken place on 26.10.1989. She claims to identify Bijay Rai and Gopal Paswan as the persons who had killed her younger son and cut the heel of her elder son Allauddin. She admits that she had ran and saved herself by hiding in the house of Bhudev Chaudhary (PW 1). In her chief itself she admits that she had carried Pannu on her back to Puraini. This is of some significance because when the question of recovery of the dead body arose, in the cross-examination, she states that the body was carried away by the miscreants. This is vital. Having admitted that the body was carried to Puraini which was a camp established for the riots victim, surely, there must have been some inquest prepared, some post mortem and then a burial. There is absolutely, no evidence in these regards. Except for the statement of this witness, there is no other corroborative evidence. There could have been corroborative evidence if Allauddin was examined. He was grievously injured. He had even lodged the second FIR after a month but he did not turn up before the Court. She, in her cross-examination, admits that she had not disclosed the fact that the appellant and other killed her son Pannu to Bhudev Chaudhary which is inexplicable. She states that Allauddin was treated but no papers or evidence for treatment was produced. She, in her cross-examination, admits that she had received compensation from the Government for the death of her son and denies suggestion that it was only after the Government announced compensation, then, false claims were raised. She states that Allauddin was treated but no papers or evidence for treatment was produced. She, in her cross-examination, admits that she had received compensation from the Government for the death of her son and denies suggestion that it was only after the Government announced compensation, then, false claims were raised. In this connection, we may, at this juncture, note that the I. O. categorically states that he had been visiting the place of occurrence, the Puraini riot victim’s camp, took statements of various persons but for the first time this witness disclosed these facts to him on 29.12.1989 i.e. more than two months after the incident. No one had reported deaths immediately after the incident or soon thereafter, the reports came only after a month. In her cross-examination, realizing the importance of the dead body, she now discloses that she had not carried the body rather she claims that she had not gone back for obtaining the body from the village itself and never tried to get it. In the cross-examination, she admits that she has not seen the house of the appellant nor does she know father’s name of the appellant. She had seen the appellant when she used to go to Jagdishpur to make purchases. Now, we come to PW 8 Bibi Jaibun. She claims to be the wife of Salim who is said to have been killed. She identifies the appellant as the person who killed her husband and claims to identify him. From the deposition, it is apparent that upon a leading question put by APP, she, then, says that she recognizes the appellant who has flour mill from where she used to buy flour. This is immediately objected by the defence and rightly so. She does not know about anybody else who were killed by the miscreants. This is of some importance because she was also of the same village and had also taken shelter in the house of Bhudev Chaudhary (PW 1) where PW 7 was also there and had PW 7’s son being killed, surely, this witness would have knowledge thereof. In her cross-examination, she admits that the post mortem examination of the body of her husband Salim was done at Bhagalpur. This is of some importance because in the said district the only place, where post mortems were conducted, were the Bhagalpur Medical College and the Sadar Hospital. In her cross-examination, she admits that the post mortem examination of the body of her husband Salim was done at Bhagalpur. This is of some importance because in the said district the only place, where post mortems were conducted, were the Bhagalpur Medical College and the Sadar Hospital. She was aware of the significance notwithstanding that neither the inquest report has been brought on record nor the post mortem report. This itself implies that the body of Md. Salim had not been recovered. Unfortunately, if that was the truth, then, evidence had to be brought on record, but there is no evidence in respect thereof. She states that her statement was taken four days after the incident by the Police. This is again of some importance because when the Investigating Officer is examined, he categorically states that he had repeatedly visited the place of occurrence, Puraini Camp but these people made no claims nor gave any statement till 29.12.1989 i.e. after two months after the incident. She admits that she has received rupees one lakh as compensation for alleged death of her husband. We, then, have PW 9 Deep Narayan Paswan the informant of the first FIR and the village Chowkidar. He, in chief, totally denies, anything to do with the FIR but in his cross-examination, he admits about the incident having taken place on 26.10.1989, about destruction of houses and looting of property but in his cross-examination by the prosecution, he admits that on the next date of occurrence, along with Darogaji he had gone to the house of Bhudev Chaduahry (PW 1) where Bibi Jainub, Allauddin and others were hiding. One thing is of significance that he does not depose that anyone had disclosed to him about any injury to any person or killing of any person. We, then, have PW 10, Bharat Prasad Singh, who is the investigating officer. He proves the FIR i.e. Jagdishpur P.S. Case No. 162 of 1989 as having been registered on 26.10.1989 itself. He states that on the basis of formal FIR he had not visited the place of occurrence on that day as it had become late in the night. On the very next day, he took statement of Bhudev Chaudhary (PW 1) at the place of occurrence in village Tegapur. He found houses of Muslims burnt and ransacked. He was told that people had now moved to Puraini. On the very next day, he took statement of Bhudev Chaudhary (PW 1) at the place of occurrence in village Tegapur. He found houses of Muslims burnt and ransacked. He was told that people had now moved to Puraini. He accordingly, went to Puraini and took the statements of various people including the statement of Bibi Jainub and Bibi Jaibun. He also took statements of Hanif. He tried to locate Allauddin but he was not seen. He, then, states that pursuance to the second case, i.e. Jagdishpur P.S. Case No. 200 of 1989, he took the statement of Allauddin. He states that Bibi Jainub (PW 7), in her statement, had disclosed that she had identified Vijay, Baiju and Shaligaram as the persons who had lit their huts. Thus he, in chief, does not disclose that any person had given statement about injury, except when the second FIR was lodged by Allauddin In his cross-examination, he admits that it is only after 28.12.1989 that persons came forward and claimed about the injury and death. With regard to Allauddin he stated that he had offered Allauddin for treatment but he refused. He asked Allauddin for the injury report. Allauddin did not give anything but upon the statements of PWs 7 and 8 the case was converted now into under Section 302 of the Indian Penal Code. Thus, from this evidence, it is clear that claim with regard to death or injuries, were raised much later and when he had already been interrogated people, at the earlier point of time, no one had made such claim. We, then, have PW 11 Shyam Prasad Singh. He proves the sanction order granted by the District Magistrate-cum-Collector and PW 12 is the formal witness. This is all the evidence we have. 9. Regrettably, the trial court without noticing the undue delay in lodging the claim or disclosing the death totally relied upon PWs 7 and 8 and merely on their verbal assertion, un-corroborated in any manner, held the appellant guilty of killing of Pannu and Salim. We are unable to accept the verdict, for, there are too many unexplained loopholes in the prosecution case. Firstly, when the first FIR is lodged by the village Chaukidar i.e. Jagdishpur P.S. Case No. 162 of 1989 on 26.10.1989, there is no mention of loss of life or injury to anyone. We are unable to accept the verdict, for, there are too many unexplained loopholes in the prosecution case. Firstly, when the first FIR is lodged by the village Chaukidar i.e. Jagdishpur P.S. Case No. 162 of 1989 on 26.10.1989, there is no mention of loss of life or injury to anyone. Then, when in course of investigation, the Investigating Officer (PW 10) interrogates Bhudev Chaudhary (PW 1) in whose house others including PWs 7 and 8 had taken shelter there is again no mention of any loss of life or injury to any persons. He then, interrogates various other persons at the Puraini Camp, on the very next day of the occurrence, and again no claim of any loss of life or injury is made. What can only be the conclusion? The conclusion is that till that date no one had thought for claiming anything. There has been a consistent suggestion and admission by the prosecution that it is only after Government announced compensation, then, claims of loss of life and injuries were being raised. The I. O. had been visiting Puraini Camp but for the first time before him i.e. only on 29.12.1989 these claims of loss of life and injuries is being made i.e. more than two months after the incident. Even then, Allauddin is there who lodged the second FIR on 1.12.1989 giving rise to Jagdishpur P.S. Case No. 200 of 1989. In fact, instituting the FIR itself was wrong. It could, at best, be a further statement in terms of Section 161 of the Cr.P.C., because investigation had already begun pursuant to the first FIR. This Allauddin was a very important witness because it is he who, for the first time, claimed the death of Pannu including his injury which is grievous but the prosecution has chosen to withhold his evidence. No injury report is brought on record. What inference is to be drawn from such a conduct? In our view, the only inference that can be drawn is that all these claims are after thought and not correct. If what is alleged is correct, then, surely at some point or the other, the bodies would have been recovered. There would be some evidence to that effect. What inference is to be drawn from such a conduct? In our view, the only inference that can be drawn is that all these claims are after thought and not correct. If what is alleged is correct, then, surely at some point or the other, the bodies would have been recovered. There would be some evidence to that effect. Regrettably, no body is ever recovered though the evidence in the present case as noted above is that body of Pannu is carried to Puraini Camp, therefore, it is in the custody of the family. Where is the inquest, where is the post mortem and where is burial, there is nothing to substantiate. Similarly, with regard to Salim, PW 8 admits that post mortem was carried at Bhagalpur. Surely, there must have been inquest and post mortem report and something to show that there was a burial. Again, there is no chit of paper to substantiate this. 10. Considering the aforesaid, we are unable to persuade ourselves to believe nor is there evidence to substantiate the claim that Pannu or for that matter Salim, if they existed, were killed. In order to charge a person of murder, it has to be established that a person was killed. Here, this is not established beyond reasonable doubt. Equally true, would be the implication of the appellant for over a month, his name does not figure any where as no death is reported, then, suddenly after Government announced compensation, reports and statement are made. Appellant is not of the village where the incident took place. Yet PW7 and PW 8 seem to identify him which itself is doubtful. He is identified on the suggestion by APP which was objected by the defence in the court itself and rightly so. 11. Thus, we have no option but to allow this appeal, set aside the conviction and sentence awarded to the appellant. He is relieved from the bail bonds. Appeal allowed.