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2019 DIGILAW 1009 (JHR)

Lal Besra v. State Of Bihar

2019-05-08

DEEPAK ROSHAN, SHREE CHANDRASHEKHAR

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JUDGMENT Chandrashekhar, J. - Both the appellants were convicted under section 302, 376 and 201 IPC . They have challenged the judgment of their conviction and the order of sentence, both dated 30.11.1994 in Sessions Case No.706 of 1993 passed by the learned Sessions Judge, Sahibganj. 2. During pendency of this criminal appeal, the appellant no.1 namely, Lal Besra has died and, accordingly, this criminal appeal qua the appellant no.1 has abated. 3. Both the appellants were enlarged on bail vide order dated 14.01.2000. 4. The case of the prosecution is solely based on the circumstantial evidence. 5. The learned Sessions Judge has relied on the evidence of P.W.2, P.W.3 and P.W.8 to hold both the appellants guilty for the offence of rape and murder of Talamai. 6. Briefly stated, on the basis of the fardbeyan of Hopanmai Murmu who is mother of the deceased- Talamai which was recorded on 08.12.1992 at 14:00 hrs by S.I. N.K. Jha of Borio police station, Borio P.S. Case No.217 of 1992 was registered against the accused Lal Besra and Manjhi Besra for the offences punishable under section 302 and 201/34 IPC. After the investigation, charge-sheet was filed for the offence punishable under section 376 IPC also. The informant has stated that on 05.12.1992 at about 8 p.m in the evening the accused Lal Besra and Manjhi Besra both came to her house and took away Talamai with them. There was a love-affair between Talamai and the accused- Lal Besra. The informant thought that the accused persons have taken away Talamai for the purpose of marriage. She claims that next day when she went to the house of the accused persons she found them absconding. On 07.12.1992, one Chatur Tudu has seen a dead body in Khaiyarbir jungle. The other cow-tenders namely, Somai Besra and Rani Marandi have also seen the dead body of a girl in the jungle. The informant upon such information goes there and finds that it was the dead body of her daughter namely, Talamai. She then goes to the house of the accused persons, however, they were not found in their house. 7. During the trial, the prosecution has examined nine witnesses; the informant namely, Hopanmai Murmu has been examined as P.W.2 and the villager who has also seen the dead body namely, Chatur Tudu is P.W.7. She then goes to the house of the accused persons, however, they were not found in their house. 7. During the trial, the prosecution has examined nine witnesses; the informant namely, Hopanmai Murmu has been examined as P.W.2 and the villager who has also seen the dead body namely, Chatur Tudu is P.W.7. P.W.3 namely, Andari Marandi is the sister of the deceased- Talamai and P.W.8 namely, Pradhan Marandi is her brother. A co-villager who is also named Pradhan Marandi has been examined as P.W.9. The doctor who has conducted autopsy over the dead body is P.W.1. 8. The investigating officer has not been examined in this case. 9. The learned trial Judge on the basis of the evidences laid before him has held that the charges framed against both the accused persons have been proved by the prosecution. 10. Two-fold submissions have been made by Mr. Ramit Satendar, the learned Amicus appearing for the appellant no.2; (i) only on the basis of the last-seen-together evidence the appellant no.2 cannot be convicted for the offence punishable under section 302, 376 and 201 IPC, and (ii) the time-gap between the last-seen-together and the time of death and commission of rape coupled with non-examination of the investigating officer have rendered conviction of the appellant no.2 unsustainable. 11. To fortify his contentions, Mr. Ramit Satendar, the learned Amicus has relied on the judgments in " Gambhir Vs. State of Maharashtra" [ (1982) 2 SCC 351 ], "Rajinder Singh @ Kada Vs. State of Punjab" [1992 Supp (3) SCC 13] and "Anjan Kumar Sarma & Ors. Vs. State of Assam" [ (2017) 14 SCC 359 ] . 12. Before we proceed to analyse the evidences led by the prosecution against the appellant no.2 during the trial of Sessions Case No.706 of 1993, it needs to be recorded that the learned Sessions Judge has taken two incriminating circumstances; that the appellant no.2 was last seen in the company of the deceased- Talamai and he was found absent from his house, to convict the appellant no.2 under section 302, 376 and 201 IPC. The law on the circumstantial evidence is by now well-settled. In " Gambhir Vs. State of Maharashtra" [ (1982) 2 SCC 351 ] , the Supreme Court has explained the law on the circumstantial evidence, thus; 9. The law on the circumstantial evidence is by now well-settled. In " Gambhir Vs. State of Maharashtra" [ (1982) 2 SCC 351 ] , the Supreme Court has explained the law on the circumstantial evidence, thus; 9. " When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. " 13. The evidence of last-seen-together is a weak piece of evidence. There may be many reasons when an accused has been found lastly in the company of the deceased and that is the reason it has been held that merely on the basis of the last-seen-together evidence an accused cannot be convicted for the offence of murder. This may be an additional chain in the link of circumstances which if complete would exclude every possible hypothesis of innocence of the accused, but then, it cannot be the sole basis for convicting an accused for the offences under section 302 IPC or under section 376 IPC. Abscondence of an accused is also by itself do not establish guilt of an accused. In " Rajinder Singh @ Kada Vs. State of Punjab" 1992 Supp (3) SCC 13 , the Supreme Court has observed that abscondence of an accused is not a determining factor and definitely not one which could out-weigh the other materials appearing on the record. May be the last-seen-together evidence led by the prosecution was relevant for examining the case of the appellant- Lal Besra against whom it is alleged that he had love-affair with Talamai, but such last-seen-together evidence is not an incriminating piece of evidence against the appellant no.2. In " Kanhaiya Lal Vs. May be the last-seen-together evidence led by the prosecution was relevant for examining the case of the appellant- Lal Besra against whom it is alleged that he had love-affair with Talamai, but such last-seen-together evidence is not an incriminating piece of evidence against the appellant no.2. In " Kanhaiya Lal Vs. State of Rajasthan" [ (2014) 4 SCC 715 ], a case in which the accused was convicted for the offence of murder on the basis of the last-seen-together evidence, the Supreme Court has observed as under: 12. "The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant. 15. The theory of last seen - the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh V. State of Rajasthan." 14. The doctor who has conducted autopsy has found the following injuries on the body of Talamai:- (i) "sharp cutting wound 2" X " X skin deep near the right eye. (ii) Abrasion 1" near left eye. (iii) Bruise 3" X 2" with abrasion about 1" on the neck. (iv) Abrasion " on left knee joint. (v) Abrasion " on right knee joint. (vi) Sharp cutting wound 1" X " X skin deep over back. (vii) Abrasion " over left anble joint. (viii) Fracture and dislocation of third and fourth cervical vertilver." 15. The doctor has not specified the approximate time of death of the deceased. He has also not clearly stated whether rape was committed upon the deceased or not. He has opined that the death was due to fracture and dislocation of 3 rd and 4 th cervical verletra due to throttling and she might have been raped before that. The doctor has not specified the approximate time of death of the deceased. He has also not clearly stated whether rape was committed upon the deceased or not. He has opined that the death was due to fracture and dislocation of 3 rd and 4 th cervical verletra due to throttling and she might have been raped before that. Evidently, the expert was not certain about the time of death and commission of rape upon the deceased. In this state of evidence, non-examination of the investigating officer has become relevant. It is relevant to record that on 05.12.1992 the deceased was allegedly taken away by the accused persons, however, the First Information Report was lodged only on 08.12.1992; it is the prosecution''s case that in the evening of 07.12.1992 a dead body was seen by Chatur Tudu and other cow-tenders. In a case which is primarily based on last-seen-together evidence the time-gap between the last-seen-together and recovery of the dead body is an important fact. When opinion of the doctor is kept in mind in the context of the fact that the dead body was recovered only on 07.12.1992, that is, two days after the accused was seen last in the company of the deceased, in our opinion, the appellant no.2 against whom there is no other evidence or even allegation cannot be convicted under section 302, 376 and 201 IPC. In "Gambhir Vs. State of Maharashtra", the Supreme Court has held that in the absence of any positive evidence about the probable time of death it would be difficult to connect the accused with the crime. 16. In the above facts, we hold that the prosecution has failed to establish the charges framed against the appellants and, accordingly, the conviction of the appellant no.2 under section 302, 376 and 201 IPC is set-aside. 17. The appellant no.2 is discharged of liability of the bail-bond furnished by him. 18. In the result, Criminal Appeal No.76 of 1995(P) is allowed. 19. This Court appreciates the efforts of Mr. Ramit Satendar, the learned Amicus and Mrs. Vandana Bharti, the learned APP for their able assistance rendered to the Court. 20. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). He shall be paid Rs.5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017. 21. Vandana Bharti, the learned APP for their able assistance rendered to the Court. 20. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). He shall be paid Rs.5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017. 21. Let the lower-court records be transmitted to the court concerned forthwith.