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2016 DIGILAW 1620 (JHR)

Suresh Nag v. State of Bihar

2016-11-30

H.C.MISHRA, S.N.PATHAK

body2016
JUDGMENT : No one appears for the appellant in spite of repeated calls. On earlier occasion also when the matter was taken up, no one appeared for the appellant in spite of repeated calls and the case was adjourned for today. However, learned APP appears on behalf of the State. We have gone through the record with the help of learned counsel for the State. 2. This appeal has been filed by the appellant Suresh Nag, aggrieved by the Judgment of conviction and Order of sentence dated 04.05.1992 passed in S.T. No. 21 of 1990/30 of 1990, by learned 2nd Additional Judicial Commissioner, Camp Court, Khunti, whereby the Trial Court has found the appellant guilty for the offences under Sections 302 and 201 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo life imprisonment for the offence under Section 302 of the Indian Penal Code and is also sentenced to undergo RI for seven years for the offence under Section 201 of the Indian Penal Code. 3. According to the prosecution story, a female dead body was found in a septic tank of a hostel of a school. As the mob assembled there, the Bhabhi of the deceased identified the dead body to be of her sister-in-law (Nanad) Karuna Nag, aged about 17 years. She informed that there was an affair between the deceased and the appellant for about last four years. About 13 days ago, the appellant had entered the room of the deceased girl and they were talking together which was seen by her husband (elder brother of the deceased), who had also assaulted the appellant. On 31.01.1987 the deceased eloped with the appellant and thereafter she was being searched. Thereafter her dead body was found on 10.02.1987 in the septic tank of the hostel. The FIR was lodged by Chowkidar Vijay Munda, who had found the dead body. In the FIR, the Chowkidar had suspected that the murder of the girl was committed by her two brothers who were opposing the affair between the appellant and the girl and the dead body was concealed in the septic tank. 4. On the basis of FIR, police case was instituted and investigation was taken up. After investigation, the police submitted the charge sheet against the appellant. 4. On the basis of FIR, police case was instituted and investigation was taken up. After investigation, the police submitted the charge sheet against the appellant. After commitment of the case to the Court of Session, the Charge was framed against the appellant for the offence under Section 302 and 201 of the Indian Penal Code, and upon denial of the charge, the appellant was put to trial. 5. In course of trial, the prosecution has examined 9 witnesses out of whom, P.W.2 Philomina Nag is the lady who had identified the dead body of the deceased. P.W.3 Polus Nag is the brother of the deceased and the husband of P.W.2. These witnesses, though have stated about the prosecution case, i.e., the alleged affair between the deceased and the appellant, due to which the deceased was allegedly murdered by the appellant and the dead body was concealed, but they are not the eye witnesses to the occurrence of murder. P.W.3 Polus Nag has also stated that upon being apprehended after few days, the appellant made extrajudicial confession to have committed the murder and to have concealed the dead body and on the basis of his confession, a wooden box was recovered buried under the earth. 6. Similar is the statement of P.W.4 David Victor Nag and P.W.6 Duma Munda. P.W.7 Debtra Hans, who is the Sarpanch of the Village, has stated that the appellant had confessed before him that he had committed murder of the deceased and had concealed the dead body under septic tank and on his confession a box was recovered. He has also proved his signature and the signature of the appellant on the seizure list. P.W.8 Keneth Nag is only hearsay witness. P.W.9 Banwari Lal Jayaswal is a formal witness who has proved the FIR as Ext.5, the Inquest Report of the dead body as Ext.6 and the seizure list as Ext.7. P.W.5 was only tendered. It has come in evidence that the informant chowkidar and the investigating officer are dead and as such they have not been examined. 7. P.W.1 Dr. Shashi Kant Sinha had conducted the postmortem examination on the dead body of the deceased and he has also proved the postmortem report of the dead body which was marked Ext.1, which shows that the dead body was swollen and decomposed with multiple patches of blisters and maggots were crawling over the body. 7. P.W.1 Dr. Shashi Kant Sinha had conducted the postmortem examination on the dead body of the deceased and he has also proved the postmortem report of the dead body which was marked Ext.1, which shows that the dead body was swollen and decomposed with multiple patches of blisters and maggots were crawling over the body. The cause of death was found to be asphyxia due to throttling. 8. From the evidence on record, it is thus, apparent that there is no eye witness to the occurrence of the murder of the deceased, whose dead body was found after several days of her death in a septic tank, and the postmortem report shows that it was swollen and decomposed dead body with multiple patches of blisters with maggots crawling over the body. There is no eye witness even to the fact that the deceased had eloped with the appellant. After the deceased disappeared from her house, none of the witness examined by the prosecution saw them together. The only circumstance against this appellant in the evidence is that he had confessed his guilt and on the basis of his confession, a box belonging to the deceased was recovered. However, the fact remains that neither the confessional statement has been proved in the case, nor the Investigating Officer has been examined to prove the fact that on the confession of this appellant the said box was recovered by him and the seizure list was prepared. In our considered view, the non examination of the Investigating Officer has caused serious prejudice to the defense, in view of the evidence of the other P.Ws., that the box was recovered on the confession of the appellant. 9. In the facts of this case we are of the considered view that the appellant is entitled at least to the benefits of doubt and the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. 10. Accordingly, the impugned Judgment of conviction and Order sentence dated 04.05.1992 passed by the learned Second Additional Judicial Commissioner, Camp Court, Khunti, in S.T. No. 21 of 1990/30 of 1990, are hereby, set aside, and the appellant is given benefits of doubt and is acquitted of the charge. The appellant is on bail, and he is discharged from the liabilities of his bail bonds. 11. In the result this appeal stands allowed. The appellant is on bail, and he is discharged from the liabilities of his bail bonds. 11. In the result this appeal stands allowed. Let the Lower Court Record be sent back forthwith.