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2019 DIGILAW 1053 (JHR)

Surendra Mahto v. State Of Bihar

2019-05-14

DEEPAK ROSHAN, SHREE CHANDRASHEKHAR

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JUDGMENT Deepak Roshan, J. - The sole appellant has challenged the judgment of conviction dated 21.07.1995 under section 302 IPC and the order of sentence of R.I for life, dated 24.07.1995. 2. The informant namely, Gobardhan Gope has given his fardbeyan to the Officer-in-Charge, Dahuguttu police station which was recorded on 28.02.1986 at about 11 a.m. The informant has stated that the accused- Surendra Mahto and the deceased namely, Satyadeo Mahto sometimes used to stay together in a room provided by him on rent. They were hawkers who used to sell spices and in course of their business sometimes they stayed in his house. On 27.02.1986 the accused and the deceased both were staying in a room in the informant''s house. They prepared their meal and after taking dinner slept in the same room. However, on the next morning at about 9/10 a.m the appellant went outside with a bundle of spices however the deceased namely, Satyadeo Mahto did not come out of the room. The informant has asserted that he thought that the deceased was still sleeping in the room however after some time when he went inside the room he found one person sleeping there with the entire body covered with a bed-sheet. When he lifted the cover he found the deceased bleeding from his nose, mouth and his neck. He raised alarm on which the neighbours arrived there and he immediately rushed to the police station where he gave his fardbeyan. After the investigation, a charge-sheet under section 302 IPC was submitted against the accused and charge for the said offence was framed against the appellant by an order dated 16.12.1986. 3. During the trial, the prosecution has examined 5 witnesses; the informant has been examined as P.W.1, P.W.2 is the inquest witness and P.W.3 has been tendered for cross-examination. P.W.4 is Dr. S.N. Prasad who has proved the post-mortem examination report prepared by Dr. S.K. Sinha. P.W.5 is also a formal witness; he has proved the First Information Report and signature of the informant over there. 4. The learned Additional Judicial Commissioner, Khunti has recorded a finding that case of the prosecution is based on the circumstantial evidence. 5. In paragraph no. 13 of the judgment under challenge, the learned Additional Judicial Commissioner, Khunti has enumerated circumstances which indicate an accusing finger towards the appellant. 4. The learned Additional Judicial Commissioner, Khunti has recorded a finding that case of the prosecution is based on the circumstantial evidence. 5. In paragraph no. 13 of the judgment under challenge, the learned Additional Judicial Commissioner, Khunti has enumerated circumstances which indicate an accusing finger towards the appellant. The learned Additional Judicial Commissioner has observed that the aforesaid circumstances in the chain of the circumstances establish that it was the accused and none-else who has committed murder of Satya Deo Mahto. 6. In paragraph no.13 of the judgment under challenge, the learned Additional Judicial Commissioner has referred to the following incriminating circumstances which have completed the chain of circumstances: 13. "The circumstances against the accused are as follows: (i) He alongwith the deceased had stayed in one room of the house of P.W.1 and had slept alongwith the deceased in that room in the night of 27.02.86. (ii) None except the accused had slept alongwith the deceased in that room in the night. (iii) In the next morning the accused came out of that room within the view of or sight of P.W.1 and went out with a bundle because he was a hawker and while departing from there, he chained the door of the room. (iv) After some times not finding or seeing the deceased the informant opened the chain of the door and found the deceased lying covered with a chadar and on removing chadar he found his mouth stuffed with cloth and bleeding from his neck, nose and then on arrival of his neighbours on his hulla he found him dead. (v) No anyone else had entered inside the room after going out of the accused from the room. (vi) The accused never returned thereafter to that house when he and the deceased were friends and they used to stay in the informant''s house along as tenant in order to sell spices as hawker." 7. Before we proceed further and examine whether the aforesaid circumstances have been proved by the prosecution, we propose to refer to few judgments on the circumstantial evidence. In " Hanumant Govind Nargundkar Vs. Before we proceed further and examine whether the aforesaid circumstances have been proved by the prosecution, we propose to refer to few judgments on the circumstantial evidence. In " Hanumant Govind Nargundkar Vs. State of M.P , (1952) AIR SC 343, the Supreme Court has observed thus; "It is well to remember that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 8. The Hon''ble Supreme Court in " Padala Veera Reddy Vs. State of A.P , (1989) Supp2 SCC 706, has laid down the following test which the prosecution in a case of circumstantial evidence must satisfy; (i) the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) 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 non else; and (iv) 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 and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 9. From the circumstances referred to in paragraph no.13 of the judgment, we find that many of them have not been proved by the prosecution and some of them are not the incriminating circumstances. For example, the circumstance that no one else except the appellant was sleeping with the deceased in the room cannot be said to have proved by the prosecution. For example, the circumstance that no one else except the appellant was sleeping with the deceased in the room cannot be said to have proved by the prosecution. It is not the case pleaded by the prosecution that in the night of 27.02.1986 the informant was watching the said room whole night. It is also not a case pleaded by the prosecution that the said room is not accessible to any one else. Similarly, the accused coming out from the room with the bundle of spices and the circumstance that he never came back, are not such incriminating circumstances which can provide links to complete the chain of circumstances in such a manner so as to exclude every reasonable probability of innocence of the appellant. The post-mortem examination report has disclosed 3 sharp-cutting injuries and cause of death is recorded as due to hemorrhage and cardio-respiratory failure. The investigating officer of the case has not been examined during the trial and therefore his observation on the place of occurrence has not been brought on record. In view of the nature of injuries found on the deceased, as recorded in the post-mortem examination report, examination of the investigating officer would have brought the material facts on record. 10. In the above facts, we hold that the prosecution has miserably failed to prove the charge framed under section 302 IPC against the appellant and, accordingly, his conviction under section 302 IPC is set-aside. The learned Additional Judicial Commissioner has committed a serious error in law in holding that the prosecution has proved its case beyond reasonable doubt. 11. The bail-bonds furnished by the appellant shall stand discharged. 12. We intend to observe that a judgment should not record the conclusions only. There must be findings recorded by the Judge on the basis of which he has concluded that the offence alleged against an accused has either been proved or not proved. What is a judgment and what should be the contents of a judgment have been statutorily provided by the Code of Criminal Procedure. In " Mukhtar Singh & Anr. Vs. State of Punjab , (1995) 1 SCC 760 , wherein the Supreme Court has observed as under: 10. "............. What is a judgment and what should be the contents of a judgment have been statutorily provided by the Code of Criminal Procedure. In " Mukhtar Singh & Anr. Vs. State of Punjab , (1995) 1 SCC 760 , wherein the Supreme Court has observed as under: 10. "............. The trial Court appears to have been blissfully ignorant of the requirements of Section 354(i)(b) Cr.P.C. Since, the first appeal lay to this Court, the trial Court should have reproduced and discussed at least the essential parts of the evidence of the witnesses besides recording the submissions made at the bar to enable the appellate Court to know the basis on which the ''decision'' is based. A ''decision'' does not merely mean the "conclusion" - it embraces/within its fold the reasons which form the basis for arriving at the "conclusions". The judgment of the trial Court contains only the "conclusions" and nothing more." 13. The Judgment in S.T No. 332 of 1986/T.R No. 109 of 1993 does not fulfill the requirements in law under section 353 Cr.P.C read with section 354 Cr.P.C. 14. In the result Criminal Appeal (DB) No. 84 of 1995 (R) is allowed. 15. Let the lower court records be transmitted to the court concerned, forthwith. 16. Let a copy of the judgment be transmitted to the court concerned through FAX.