Sundeshwar Bhandari v. The State of Bihar

Judgment

1. Criminal Appeal No.499 of 1989 wherein Sundeshwar Bhandari happens to be appellant, Criminal Appeal No.527 of 1989 wherein Indradeo Jha, Bijoy Kant Jha, Ram Shresth Jha, Dinesh Jha and Ram Sogarath Jha happens to be the appellants, Criminal Appeal No.540 of 1989 wherein Rajdeo Jha happens to be the appellant, Criminal Appeal No.541 of 1989 wherein Nageshwar Jha happen to be the appellant and Criminal Appeal No.543 of 1989 wherein Prabodh Mishra happens to be the appellant commonly originate from the judgment of conviction and sentence dated 4th October, 1989 arising out of Sessions Trial No.155 of 1985, 228 of 1985, delivered by Sessions Judge, Sitamarhi convicting the appellants for an offence punishable under Section 364, 302/149 and 201 of the Indian Penal Code and Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 3 further directed each of them to undergo R.I. for life under Section 302 /149, 364 Indian Penal Code respectively and further R.I. for 5 years each under Section 201 of the Indian Penal Code. Further the sentences had been directed to run concurrently with a further direction to adjust the period of detention as provided under Section 428 of the Cr.P.C.

2. P.W.9, Binod Bihari Mishra had filed written report before the S.P., Sitamarhi on 02.08.1984 which was forwarded to the Bajpatti P.S. putting an allegation that his sister Indrapari Devi has come and informed that in the preceding night of 01.08.1984 while his brother-in-law (Bahnoi) Deo Kant Jha @ Bholi Jha was sleeping, his co-villager, Rajdeo Jha, his brother-in-law (Bahnoi) resident of Thumha, brother-in-law of Jai Mangal Sah (Sala) resident of Morshand along with five others took him away after breaking the door of his house with criminal motive.

3. After registering Bajpatti P.S. Case No.43 of 1984 on the aforesaid written report the investigation commenced and concluded by having the charge sheet submitted against altogether fifteen accused (out of whom six have already acquitted by the learned lower court) under Section 364, 302, 149, 201 of the Indian Penal Code whereunder cognizance was also taken and accordingly, after committal of the case, the trial commenced and Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 4 concluded in a manner which happens to be the subject matter of instant appeal.

4. The defence as is evident from mode of cross- examination as well as from the statement recorded under Section 313 of the Cr.P.C. is that accused persons are innocent and they have been falsely implicated in this case out of enmity persisting amongst the parties. To support the same, defence had also examined DWs.

5. While assailing the judgment of conviction and sentence, it has been argued on behalf of appellants that the whole prosecution story suffers from improbability and on account thereof, whoever been examined in this case, their evidence are not at all reliable, credible and trustworthy. Then submitted that all the material witnesses are inimical to the accused persons and so, they have got an occasion to implicate the accused persons by this way or that way. Furthermore, it has been submitted that the most natural witness as per prosecution case happens to be PW 8, Indra Pari Devi, wife of deceased who was along with deceased on the fateful night. When her evidence is taken into consideration in light of written report submitted by P.W.9,Binod Bihari Mishra because of the fact that the contents of written report is based upon the earliest version given by Indrapari Devi, PW 8. it is

Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 5 evident that save and except Rajdeo Jha, none has been named though two others encircled by relationship. Presence of development, exaggeratopm, embellishment in the statement of PW8 during course of her examination in court is suggestive of the fact that the same has been over influenced by the other PWs who have got long standing animosity with the accused persons. Therefore, it has been submitted that the version of P.W.8 became non-trustworthy. Not only this it has further been submitted that the night was dark. At the earliest stage of their statement, the prosecution was silent over the manner of identification which subsequently, during course of trial, has been explained by means of torch as well as lamp but again the aforesaid theory appears to be unbelievable in the background of the fact that the same was not produced before the I.O. nor was seized.

6. The second leg of submission is with regard to evidence of P.W.10 and 11 who are said to be Chowkidar. P.W.10 had said that while he was on duty and was at Madhopur, he had seen one Mini Bus parked there and was kept in ready condition. The person who spoke to him from inside bus was Deo Karn Jha @ Bholi who had enquired from him whether he will also go. Had the victim Deo Karn Jha @ Bholi Jha was kidnapped from his house as per version of the prosecution by the accused persons Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 6 with whom he had long standing then in that event he must have disclosed to the chowkidar regarding his apprehension therefrom, because it was an unnatural conduct. It is also surprising that none of the prosecution witnesses followed the victim from their village to see what subsequent event was going to be exercised against Deo Karan Jha by the accused persons. So, it has been submitted that this part of prosecution again belie the theory which they advanced that deceased was taken to Madhopur, got him boarded in a bus and then was taken away. Prosecution has not explained the event why they have not followed the deceased when large numbers of villagers assembled there and the deceased along with accused persons have gone on bare foot totally unarmed. In likewise manner, there is no allegation of use of force at any stage. Had the deceased been kidnapped in such manner, then in that event there should have been reasonable protest at the prosecution side.

7. The next part happens to be with regard to extra judicial confessional statement of Rajdeo Jha which is said to be recorded as Pupri P.S. wherein he has confessed the guilt and further disclosed concealment of the dead body which was, as per prosecution, recovered from Chamaniya Chaurr of Lalpur Kauriya village. It has further been disclosed that the prosecution further Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 7 developed a case with regard to seizure of the vehicle in question, arrest of driver Bindeshwar Sharma, Khalasi Sakir Khan and further going with them (since acquitted) along with police personnel to that place and recovery at dead body at the instance of Rajdeo Jha. The aforesaid story is not at all found to be admissible in accordance with Section 27 of the Evidence Act because of the fact that there happens to be in consisting version of the witnesses on this score. Therefore, it has been submitted that neither there happens to be the consistent probable version of prosecution with regard to last scene theory along with the recovery of the dead body at the instance of accused Rajdeo Jha. In worst case, it has further been submitted that aforesaid inculpatory confessional statement is legally permissible to be used against Rajdeo Jha only and none-else and so the learned lower court instead of dealing with each and every P.W. traced and sketched the prosecution case superficially and recorded judgment of conviction and sentence in arbitrary manner. So submitted that as the same is not at all supported with the material available on the record hence is fit to be set aside.

8. At the other hand, the learned Additional Public Prosecutor while supporting the finding of the learned lower court submitted that each and every circumstance visualizing against Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 8 the accused has properly and distinguishly dealt with. Then submitted that miner exaggeration and inconsistency appearing from the evidence of the PWs is not going to ruin the prosecution version rather the same has to be seen from the entirety of the facts and circumstances of the case. Then submitted that prosecution is not obliged to explain each and every circumstance raised by the defence when the evidence its entirety conclusively proves the case pointing out the fact that it is the accused who is responsible for committing the occurrence. It has further been submitted there happens to be proper identification of accused who are either co-villager or are on visiting terms on account of close relationship on account of which the witnesses have got ample opportunity to see them since before and in the aforesaid background one cannot challenge the identification even if absence of source of identification though explained. It has further been submitted that the material witnesses have categorically stated showing the complicity of the accused. Further submitted that the identification of the accused happens to be consistent. With regard to appellant Nageshwar Jha it has been submitted that he had himself offered for TI Parade before the High Court and accordingly was ordered so and as per evidence of P.W.1 and P.W.15, the Magistrate, he was identified during Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 9 course of TI parade. Then submitted that the prosecution had also exhibited the documents to show that the deceased was regularly assaulted at the hands of accused persons before the commission of instant occurrence at due interval and for that he had complained before the police as well as filed complaint case. Then submitted that the material witnesses are the persons of vicinity enabling them to rush on hearing the sound of cry and on that very score they have proved their presence wherein they claimed identification of accused having taken away the deceased from his house. In likewise manner it has further been submitted that after getting inculpatory confessional statement as well as after locating the bus in question and apprehending its driver, Bindeshwar Sharma and Khalasi, Sakir Khan and further having disclosure at their end, the murder of deceased Deo Karan Jha @ Bholi away from his village and then concealing his dead body at Chamainiya Chaur and subsequently recovery therefrom at the instance of appellant accused Rajdeo Jha. Complete the link of chain which lead only and only inference regarding complicity of appellants during commission of the trial. So submitted that appeal is fit to be dismissed.

9. Before coming to the evidence of rival party, it looks desirable to see the materials having been adduced on record on Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 10 their behalf.

10. Prosecution had examined altogether 18 P.W.s out of whom P.W. 10 Dhirnath Jha, P.W.2 Ram Balak Rai, P.W.3 is Jivas Jhakar, P.W.4 is Dr. Vishwanath Prasad Bajoria, P.W.5 Ramesh Chandra Jha, P.W.6 Indramukhi mother of deceased, P.W.7 Manager Rai, P.W.8 Indrarani Devi wife of deceased, P.W.9 Binod Bihari Mishra, P.W.10 Mina Das Chowkidar, P.W.11 Naga Singh Chowkidar, P.W.12 Ram Karn Jha elder brother of deceased, P.W.13 Lalbodh Jha, P.W.14 Arbind Kumar I.O., P.W.15 Ajay Kumar Sinha Magistrate, P.W.16 Jitendra Jha formal, P.W.17 Jagannath Ram formal, P.W.18 Shamjee Mishra. Side by side had exhibited, Exhibit 1 postmortem report, Exhibit 2 Series signature of witnesses over search list, inquest report, Exhibit 3 written report, Exhibit 4 alleged to be written by Gagandeo Jha, Exhibit 5 envelop, Exhibit 6 protest petition, Exhibit 7 formal FIR, Exhibit 8 seizure list, Exhibit 9 carbon copy of inquest report, Exhibit 10 acknowledgement receipt, Exhibit 11 TI chart, Exhibit 12 fardbeyan of Bajpatti P.S. 41/84, Exhibit 13 complaint petition dated 10.07.84, Exhibit 13/1 complaint petition dated 13.08.83, Exhibit 14 supervision report of the DSP, Exhibit 15 para 39 of the case diary, Exhibit 16 affidavit dated 17.09.84. Material Exhibit I Cassette of tape record. Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 11

11. Side by side defence had also examined two DWs out of whom DW 1 is Sunil Kumar Srivastava, Judicial Magistrate while DW 2 is Madan Prasad formal and had exhibited A series, two petitions filed by Officer-in-charge dated 06-08-1984, TI chart Exhibit B, C series happens to be the requisition submitted by IO and the endorsement made thereupon respectively.

12. P.W.4 happens to be doctor who held postmortem over the dead body of Deo Karan Jha @ Bholi on 05-08-1984 at about 12:50 noon. The body was highly decomposed a large number of maggoty were found over the body. Rigor mortis was found absent. The following ante mortem injury was found:

1. One abrasion 1 ½”x ½” on right side of neck.

2. Lacerated wound 2 ½” x 1”x skin deep on the right eyebrow and just lateral to right.

3. Bruise 4” x 2 ½”with haemotoma. On opening of scalp fracture of occipital bone was found. Brain matter was liquified

4. On cutting of haemotoma extra vassation of blood and blood clot was found. In the opinion of doctor, the death occurred due to shock and haemorrahage on account of above referred injuries specially injury no.1 caused by hard and blunt substance. Time Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 12 elapsed since death was estimated within five days. The doctor further opined that aforesaid injuries were sufficient in ordinary course of nature to caused death. In chief had disclosed that body was over inundated in water. During course of cross-examination said that the body was in the water 2 to 3 days.

13. Therefore, from the evidence of doctor, it is evident that deceased had died on account of assault having been made over his person by means of hard and blunt substance.

14. Now coming to the nature of ocular evidence, none is an eyewitness to occurrence so far commission of murder is concerned. The prosecution had examined the witnesses on two count. The first one happens to be relating to taking away the deceased by the appellants/accused while the second happens to be with regard to making of inculpatory extra judicial confessional statement of Rajdeo Jha, leading to recovery of dead body from Chamainiya Chaur having inundated.

15. On the factum of first point, P.W.1, Dhairya Nath Jha had deposed that the occurrence is of dated 01.08.1984 it was near about 12 O’clock, at that very time he was sleeping at his house. After hearing sound of wife of Deo Karan Jha, he awakened rushed to the Darwaja of Deo Karan Jha with torch and then in the light of torch he had seen Rajdeo Jha, Ram Shresth Jha, Dinesh Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 13 Jha, Indradeo Jha, Vijaykant Jha, Jai Mangal Jha, Ram Swarath Jha along with others taking away Deo Karan Jha out of whom two were in police dress. He became apprehensive and thought that Rajdeo Jha and others were taking away Deo Karan Jha for assault at the hands of police. On account thereof, he intervene over which Ram Swarath Jha gave one slap. Thereafter, they all took away Deo Karan Jha. He immediately informed Chowkidar, Naga Singh. He had also gone in T.I. Parade where identified Nageshwar Jha whom he also identified in dock along with others. During course of cross-examination at Para-8 had disclosed that he had shown torch to I.O. Para-9, 10 and 11 happens to be details of cases having in between the party as well as also disclosed that deceased Deo Karan Jha @ Bholi Jha happens to be his uncle. In para-12 of his cross-examination had disclosed that he had seen the accused persons at the Darwaja of Deo Karan Jha. None of the accused had tried to conceal their face. He had seen the accused from the distance of 7 or 8 hands. At para-13 had disclosed that at that very time wife of Deo Karan Jha was present there and was saying that Rajdeo had took away her husband. In para-15 had said that when the accused persons took away Deo Karan Jha then he informed the Chowkidar and further disclosed specific names of accused who have had taken away the deceased. Then there Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 14 happens to be contradiction. In para-20 had said that Jai Mangal happens to be son-in-law. In para-21 had said that it was dark night. Then there happens to be contradiction in remaining portion of para-21 and 22.

16. So from his evidence, it is evident that he had not shown presence of any other person save and except wife of deceased P.W.8, Indra Pari Devi who had disclosed that her husband was taken away by Rajdeo Jha. Over manner of identification by torch light, it appears that the same has been introduced before the court. The other part of his evidence regarding information to Naga Singh, Chowkidar will be taken into account, subsequently while dealing with his evidence who was examined as P.W.11.

17. P.W.2 as disowned hence was declared hostile by the prosecution.

18. P.W.3 is Jiwach Thakur. He in chief had said that on

01.08.1984 at about 07:00 P.M. while he was on walk towards south to his village, seen one Maxi parked there. He inquired as to why vehicle was standing. He had seen Rajdeo Jha, Prabodh Mishra, Sundeshwar Bhandri and one Brahaman of Morshand village present at the tea-stall near Ganesh Chowk, who were sipping tea. Some were also taking Ganja, toddy. Then boarded in Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 15 the Maxi disclosing that they are going to inaugurate Bhalni Math. Further disclosed that he had seen Sundeshwar Bhandari in home guard dress and was armed with stick Thereafter, he was declared hostile because of the fact subsequent event was disowned by him. During cross-examination at para-9 had disclosed regarding presence of case. In para-11 had said that he had not identified anybody in T.I. parade. In para-13 accepted the case launched by Surendra Mishra. From his evidence, it is evident that he had seen the vehicle parked at tea stall near Ganesh Chowk wherein he had claimed to have identified four persons.

19. P.W.6 happens to be Indra Mukhi, mother of deceased. She had narrated that deceased Deo Karan Jha @ Bholi Jha was her son. As her husband happens to be blind therefore she was along with her husband at her Dalan which lies south to her house. After hearing sound of daughter-in-law coming from her Aagan, she awaken and came to her Darwaja with lantern where she saw 14-15 persons coming out from her courtyard. She claimed identification of Rajdeo Jha, Vijay Jha, Ram Shresth Jha, Ram Swarath Jha, Jai Mangal Jha, Indradeo Jha, Dinesh Jha and son-in-law Prabodh Mishra. Two persons were in police dress while Rajdeo Jha was in Gerua. They all took away her son. She identified eight persons. In para-6 had disclosed that Lalbodh Jha Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 16 and Balbodh happens to be full brother of her husband and are separate in mess and business. Further disclosed that Lalbodh had filed a criminal case against the accused persons in the year 1984. In para-7 had said that when she came with lantern all the accused persons were at her Darwaja. She had inquired from them where they were taking her son. Her daughter-in-law Indra Pari Devi was also there. When the accused persons chided her, she return back. Then had said that Lalbodh Jha and Dhirnath Jha were present who after departure of the accused persons have gone to inform the Chowkidar on her instruction. Then at para-9 had said that she had not stated before the police regarding commission of murder of her son. In para-10 had said that her daughter-in-law had rushed to the place of her brother for informing. In para-12 had said that she cannot say whether she had gone to jail to participate in T.I. parade and did not identify any of the accused. So from evidence of this P.W. again all the accused having on trial were not named. Apart from herself she also shown presence of Dhirnath Jha, Indra Pari Devi and Lalbodh Jha but had not disclosed that either of them were possessing torch or any of them were flashing torch.

20. P.W.8 happens to be wife of deceased Indra Pari Devi. She had stated that deceased Deo Karan Jha was her husband. On the alleged date and time of occurrence she was Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 17 sleeping in her room over bed along with child while her husband was sleeping over cot. There was push over door at midnight on account of which she awakened. Somebody called her husband by name and further directed to open the door. Her husband inquired over which they replied as police. She had lightened the lamp. Again there was push over the door on account of which it became open. Some of them entered inside room out of whom two were in Khakhi dress while Rajdeo Jha was in Gerua. She also identified Vijay Jha, Jai Mangal Jha, Prabodh Mishra, Nageshwar Jha. The persons who were in police dress caught hold her husband at the instigation of Rajdeo Jha and took him away outside. She inquired from Rajdeo over which Rajdeo disclosed that now he has to face the consequence of assault. Some persons were also standing outside, she raised alarm. On hearing her cry Dhairnath Jha, Lalbodh Jha and her mother-in-law, Indra Mukhi came with lantern who was sleeping at Darwaja along with her father-in-law. In spite of request to take her husband away through road, all of them took him through lane. She also followed over which Rajdeo chided her and said that they are carrying her husband to P.S. Thereafter, she rushed to Sitamarhi along with Deyadin where her brother resides and narrated the event. Then had disclosed that as there was quarrel with Jai Mangal Jha about 15 days ago in the Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 18 background of which this occurrence has been committed. Subsequently, dead body of her husband was detected. In para-14 had said that none of his agnate had followed her husband. In para-16 had said that she had not sent anybody to P.S. She was not aware with the fact whether Chowkidar was informed before her departure to Sitamarhi. In para-18 her attention has been drawn up over disclosure made to her brother regarding lighting of lamp as well as opening of door on being pushed. Also disclosed that she had named all the accused to him. She was not present at the time when the police had come. In para-25 had said that she had shown the P.O. to police but again said that she had not met with police. There happens to be certain contradiction as is evident from para-27, 28 of the case diary. In para-32 had disclosed that she had identified Nageshwar in T.I. Parade.

21. P.W.9 is informant as well as brother of P.W.8, certainly he is not an eye witness to occurrence. He had deposed that on 02.08.1984 at morning hour while he was at his residence lying at Sitamarhi, his sister along with her Dayadin came weeping and disclosed that in the preceding night (01.08.1984) while her husband Deo Karan Jha was sleeping in the house along with her as well as son, Rajdeo Jha,his Bahnoi, brother-in-law Prabodh Mishra, Jai Mangal Jha his Sala, Nageshwar Jha, Vijay Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 19 Kant Jha, Ram Swarath Jha along wth others came and took away her husband from house. He rushed to the place of S.P., Sitamarhi and inform him and as per his direction he had submitted written report which was endorsed by him and then he had handed over the same to the Officer-in-charge, Bajpatti. Then identified the accused in dock. He had gone to the P.O. village along with police. Dead body of his brother-in-law was recovered on 04-08- 1984 on pointing out by Rajdeo Jha. He had identified the dead body that of his brother-in-law along with others. Then had disclosed that Gagandeo Jha happens to be brother of Rajdeo Jha who had sent a letter and also exhibited the same. He had also exhibited the protest petition. He had also disclosed that he had taped statement of witness Jiwach Thakur and Ram Balak and produce the cassette. During cross-examination he had admitted that he had left to mention name of Gyaneshwar Jha in the application. At para-15 had said that his sister along with her mother-in-law had gone to jail for T.I. parade. In para-16 had said that whatever information he has, was conveyed by her sister. He had also disclosed that he had not mention the name of Vijay in the written report. He had further disclosed that her sister had orally informed. Whatever she had disclosed, he had written over paper but even then few words have missed. Then at para-26 had Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 20 said that he was along with Darogaji after arrest of Rajdeo Jha upto recovery of dead body. He had not become witness over confessional statement of Rajdeo Jha.

22. P.W.12 happens to be Ram Karan Jha, brother of deceased. He had deposed that deceased Deo Karan Jha @ Bholi was his brother. He used to reside at Bombay. He had return back in the night of 02.08.1984 after getting information with regard to scuffle committed on 18.07.84. After arrival at his house his mother and Dhairya Nath Jha (P.W.1) disclosed that Rajdeo Jha, Ram Shresth Jha, Dinesh Jha, Indradeo Jha, Vijaykant Jha, Ram Swarath Jha, Jai Mangal Jha, Nageshwar Jha, Prabodh Mishra along with others took away Bholi. Dead body of Deo Karan Jha @ Bholi was recovered in the morning of 04-08-1984 from water at Chamainiya Chaur. On pointing out of Rajdeo Jha who was under custody, dead body of his brother Deo Karan Jha @ Bholi was recovered there from. At that very time Rajdeo was present there. Darogaji, Ramesh Chandra Jha, Binod Bihari Mishra, Manager Rai he himself along with two police constable were present. He identified the dead body of Deo Karan Jha @ Bholi for which seizure list was prepared over which he put his signature. Further identified the accused. During cross- examination at para-2 had disclosed that on 02.08.1984 at about Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 21 08:30 P.M. he had talk with his mother as well as Dhairya Nath Jha at his Darwaja who had disclosed the names of accused. Further he disclosed that Darogaji had not taken his statement. However, he again disclosed that he had talk with Darogaji on

03.08.1984. He further disclosed that he had narrated before the police that his mother and Dhairya Nath Jha had disclosed regarding occurrence. At para-3 had disclosed that the place from where dead body of deceased was recovered lies 2 to 2.5 K.M. from his village. In para-4 had said that after hearing rumour that Darogaji, after apprehending Rajdeo Jha, was going towards Chamainiya Chaur, he alone proceeded from his house at about 06:30 A.M. He cannot say at which hour Darogaji had taken away Rajdeo Jha to Chamainiya Chaur. Darogaji was standing over road near the place from where dead body was taken out from water. The distance in between happens to be about 110 yard. About 100 people have assembled there. Dead body was not taken out before his arrival. After 45 minutes of his arrival dead body was taken out. At that very time Rajdeo Jha along with 5-6 other persons have gone to the place along with Darogaji. Dead body was taken to road. He cannot name the persons who have taken out the dead body. When Darogaji left the place along with dead body he also proceeded. He had no talk with Darogaji during intervening Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 22 period. At para-5 had said that he return back to his house and remained there for two months. He cannot say whether Darogaji had recorded confessional statement of Rajdeo Jha, then denied suggestion. Then there happens to be contradiction under para-6 of his cross-examination.

23. P.W.13 happens to be Lalbodh Jha uncle of deceased. He deposed that on the alleged date and time of occurrence he was sleeping at the Darwaja of his brother Balbodh Jha. Dalan of Deo Karan Jha lies two and half lagga away from Darwaja of Balbodh Jha. After hearing cry of wife of Deo Karan Jha he awakened. He came out with torch and flashed and found 10 to 12 persons dragging Deo Karan Jha out of whom two were in police dress. He had identified Rajdeo Jha, Dinesh Jha, Vijay Jha, Indradeo Jha, Jaimangal Jha, Ram Swarath Jha, Ram Sherest Jha, Prabodh Mishra, Nageshwar Jha. He further disclosed that lantern was hanging at the Darwaja of Deo Karan Jha and on account of which there was light. He thought that Deo Karan Jha has been apprehended by police at the instance of Rajdeo Jha. Because of the fact that about 8 or 10 days earlier there was Marpit in the village for which cross case was filed. On subsequent Wednesday one letter was received from Mumbai in name of Deo Karan Jha. On query from Deo Karan Jha he had disclosed that the aforesaid Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 23 letter was sent by brother of Rajdeo Jha who had disclosed that he will see and assault him after coming from Bombay. Further identified the accused. At para-3 had said that his Darwaja lies 6-7 lagga eastern-southern corner of Balbodh Jha. Darwaja of Deo Karan Jha lies west of Darwaja of Balbodh Jha. Because of the fact that he was apprehensive with regard to Marpit, therefore he had slept at the Darwaja of Balbodh Jha. Deo Karan Jha was informant in one case and after his death he use to look after the case. Cross case was filed by Jai Mangal Jha wherein he Balbodh Jha, Deo Karan Jha were accused. Also disclosed that so many litigations are pending amongst them since before. In para-4 of the cross-examination had said that accused persons had not forbidden him from flashing torch. He had disclosed to wife of Deo Karan Jha as well as mother of Deo Karan Jha as an eyewitness. Further volunteered that they have also disclosed like so. Then had disclosed that wife and mother of Deo Karan Jha has disclosed him that Rajdeo Jha got Deo Karan Jha apprehended by police. Thereafter, he sat at the Darwaja of Deo Karan Jha where he later on slept. On the following morning police has come and also inquired from him as well as from the mother of the Deo Karan Jha. He had not shown torch to police official. In para-5 had denied the suggestion that there was no statement before police. In Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 24 para-6 had disclosed that there happens to be litigation in between accused at one side and prosecution at other. Then had disclosed in para-9 that he had not participated in T.I. Parade.

24. From the evidence of P.W.12, it is evident that he was not at all present on the day of occurrence and deposed on the basis of information given by his mother as well as Dhairya Nath Jha, P.W.6 as well as P.W.1 respectively. None of these two witnesses during their evidence had disclosed that they had ever narrated the event toP.W.12. Therefore, the evidence of P.W.12 cannot be accepted as hearsay evidence. In likewise manner the evidence of P.W.13 has become suspicious in the background of the fact that the I.O. as per para-30 of his cross-examination had accepted that he had not taken statement of P.W.13, Lalbodh Jha. With regard to development in the evidence of other P.W.s as referred above, evidence of P.W.14, para-29 is there.

25. Now the second set of evidence which has been brought up by the prosecution to connect the link by putting presence of Maxi Taxi wherein deceased Deo Karan Jha @ Bholi was taken away. On that score examine P.W.10, Meena Das, Chowkidar and P.W.11, Naga Singh, Chowkidar.

26. P.W.10 had said that on the alleged date and time of occurrence while he was patrolling and during said course reached Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 25 near crossing of Madhopur village, he had seen one vehicle which was in starting position. One person called him from vehicle asking whether you are Meena? Over which he had said Yes. Then again inquired whether you will accompany over which he replied that he is on patrolling therefore he will not go. Further he claimed identification by voice that of Bholi Jha. Thereafter, the vehicle left. When Naga Singh, Chowkidar came at his Darwaja, he disclosed him that probably Bholi Jha was inside vehicle. During cross-examination had said that he had seen the vehicle from the distance of 8 lagga. Because, it was a dark night therefore he perceived the colour of vehicle as black. He cannot say that he was Bholi Jha or somebody else but from voice it appears to be that of Bholi Jha. The vehicle proceeded then thereafter. In para-3 had said that he met with Chowkidar, Naga Singh at about 02:00 A.M. Then he was cross-examined by the prosecution over colour of the vehicle after recall.

27. So from his evidence, it is evident that there was no source of light. He had not gone near the vehicle. He had not claimed to have seen anybody and the distance from where he had seen the vehicle was from 8 lagga. The most surprising feature is that he had met with P.W.11 but they have not talked over taking away of Deo Karan Jha as per complain made by the prosecution Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 26 witness.

28. P.W.11 happens to be Naga Singh, another Chowkidar. He had disclosed that on the alleged date and time of occurrence while he was on night patrolling Dhairya Nath Jha came and inform him that Rajdeo Jha & others have taken away Bholi Jha. He further directed him to inform P.S. When he reached at Madhopur Chauraha then he inquired from Meena Das who had disclosed that one vehicle was parked here having in start condition. He further disclosed that most probably Bholi Jha had spoken from vehicle and then thereafter the vehicle proceeded. As there was flood so he had not gone to P.S. On the following morning at 09:00 A.M. he had gone to P.S. where Munsijee disclosed him that the Darogaji had gone to the village. Then thereafter he returned back there from. In para-2 of his cross- examination he had disclosed that Dhairya Nath Jha had disclosed the event at about 11:30 P.M. He further disclosed that he met with Meena Das at 02:00 A.M. in between his house and chowk. Then happens to be some sort of contradiction. So from his evidence, it is evident that he had not supported the evidence of P.W.10 because of the fact that P.W.10 had disclosed in his examination-in-chief itself that Naga Singh had come to his Darwaja after patrolling which the P.W.11 had not supported. Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 27 Further this witness failed to disclose that he ever talked with P.W.10 regarding the information given by the prosecution witnesses.

29. Now the another link which the prosecution had adduced happens to be with regard to inculpatory confessional statement of Rajdeo Jha. So far this part is concerned, save and except P.W.14 none has come forward to claim that Rajdeo Jha had ever made inculpatory confessional statement. However, the other witnesses have disclosed regarding recovery of dead body at pointing out of accused Rajdeo Jha. On this score the evidence is bifurcated in two parts. The first happens to be with regard to presence of seizure witness and those are P.W.5, Ramesh Chandra Jha as well as P.W.7, Manager Rai.

30. P.W.5 had said that on 04.08.1984 at about 07:30 A.M. he was at Chamainiya Chaur. Darogaji had kept apprehended Rajdeo Jha since before. Rajdeo Jha had shown the place where dead body of Deo Karan Jha was kept concealed beneath water having tied with ridge. Dead body was recovered and for that seizure list was prepared in carbon process over which he also put his signature along with Manager Rai, Ram Karan Jha. Inquest report was also prepared in his presence as well as in presence of Manager Rai over which they have put their signature. Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 28 During cross-examination at para-5 had disclosed that the place from where dead body was recovered lies two and half K.M. away from his village. Then had said in para-10 of his cross- examination that he had reached near dead body at about 07:00 A.M. At that very time Darogaji had kept the accused arrested and was interrogating him. Dead body was recovered after his arrival. P.W.7 had said that on 04-08-1984 at about 07:30 A.M. dead body was recovered from Chamainiya Chaur. Darogaji had kept Rajdeo Jha accused arrested since before. On his (accused) pointing out dead body was recovered beneath water and for that papers were prepared over which he put his signature. He had disclosed in para-7 of his cross-examination that he had not gone at that place along with Darogaji rather he arrived there after arrival of Darogaji.

31. Now the evidence of I.O. P.W.14 has to be taken into consideration. His evidence appears to be of prime importance as the prosecution alleges that accused Rajdeo Jha was apprehended by aforesaid P.W.14, Arbind Kumar before whom he made inculpatory confessional statement.

32. P.W.14 is I.O. He in chief had said that on 02-08-

1984. He was Officer-in-charge of Bajpatti P.S. On the same day at about 08:45 A.M. Binod Bihari Mishra has placed an Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 29 application duly forwared by S.P., Sitamarhi and had exhibited the same. After registering the case at about 10:30 A.M., he reached at Bhalni village and as pointed by Binod Bihari Mishra, Indradeo Jha and others he inspected the place of occurrence which happens to be the residential house of Deo Karan Jha. With regard to door fixing in the room he had disclosed that there was no sign over itto suggest application of external force. He had found Billaiya in weak position and on account thereof the door might have open on press. Then had narrated the topography of the room. He took further statement of informant as well as of Indramukhi Devi, Dhairyanath Jha. Searched out accused persons but none were found. Then recorded statement of Meena Das at Madhopur Chowk and from there had gone to Dumra where intercepted Vehicle No. URK 3482 on suspicion. He inquired from driver, Bindeshwar Sharma, Khalasi Shakir Khan. Seized the vehicle. Arrested driver and Khalasi. Then rushed to Runni Saidpur P.S. and had gone to village Thumha and Morshand. He inquired about Bahnoi (brother-in-law) of Rajdeo Jha and came to know his name as Prabodh Mishra who was found absent from his house. Also gone at the house of Nageshwar Jha who was also found absent. Return back to Sitamarhi and then recorded statement of Indrapari Devi at the house of Binod Bihari Mishra. Then had gone to Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 30 Lalpur Kauriya, Chamainiya Chaur along with Bindeshar Sharma, driver and Khalasi Shakir Khan and inspected the place as pointed out by the driver and Khalasi. On 03-08-1984 at about 02:00 A.M. conducted raid at the house of accused persons who were found absent. Taken statement of Khobhari Jha, Ram Karan Jha, chowkidar, 7/9 Naga Singh. On 03.8.84 at about 04:00 P.M. he reached at Madhopur Chowk and as pointed out by Bindeshwar Sharma, Khalasi and Meena Das had inspected Madhopur Chowk where vehicle was parked. Bhalani village lies one K.M. South from this place. House of Yogendra Mandal situates nearby. Then thereafter he along with ASI, driver, Khalasi had gone to Pupri P.S. where Rajdeo Jha was arrested since before. Took control of Rajdeo Jha and interrogated him. He had confessed his guilt which was recorded by him. Rajdeo Jha also disclosed the place where he had concealed the dead body and further disclosed that he had concealed the same beneath water after tie with ridge. Then thereafter he along with Rajdeo Jha, ASI, B.B. Singh, Driver Bindeshwar Sharma, Khalasi Shakir Khan had gone Chamainiya Chaur where they arrived at 11:00P.M. They stayed there whole night. On 04.08.1984 at about 07:30 A.M. he had reached near the field of Ramesh Chandra Jha as well as Manager Rai as pointed out by Rajdeo Jha along with witness Manager Rai Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 31 and Ramesh Chandra Jha. In their presence Rajdeo Jha took out dead body beneath water. The dead body was identified by brother of deceased namely, Ram Karan Jha, Binod Bihari Mishra, Deo Narayan Jha, Satyadeo Singh and Binod Jha for which seizure list was prepared over which seizure list witnesses have put their signature as well as others also put their signature in support of identification of the dead body. Thereafter inquest was prepared. Then had detailed the physical feature of dead body. Then had detailed the place from where dead body was recovered. Then they came to village Bhalni and conducted raid for apprehension of accused. Thereafter, forwarded the accused to judicial custody. As per direction of the S.P. he had handed over the vehicle to its owner. Received postmortem report. On 17.08.84 Binod Bihar Mishra had furnished one letter for which seizure list was prepared. After completing investigation submitted charge sheet. He had also exhibited para-39 of the case diary which happens to be confessional statement of Rajdeo Jha. Then he was confronted with the statement of the witnesses Ram Balak Rai, Jiwach Thakur . In cross-examination at para-18 and 19 had said that he had recorded confessional statement of accused Bindeshwar Sharma and Shakir Khan. Then had said that he had arrived at Chamainiya Chaur on 02.08.84 at about 08 : 00 P.M. Then had Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 32 said that both the accused have accompanied them during the intervening period while moving to Thumha, Morshand. Then had disclosed that he had not mentioned in the case diary regarding all places where the vehicle was parked as disclosed by accused Bindeshwar Sharma and Shakir Khan. Then had disclosed that he was not aware with the fact that Rajdeo Jha was apprehended till arrival at Pupri P.S. At para-22 had said that he had recorded confessional statement of Rajdeo Jha at Pupri P.S. Soon thereafter volunteered that after arresting him under custody then he had recorded the statement. He cannot say whether statement of Rajdeo Jha was prepared in carbon process or not. Then had said that he had sent the confessional statement of the accused to court. He had proceeded to Chamainiya Chaur on 03.08.1984 at 08:00 P.M. along with ASI, B.B. Singh accused Bindeshwar Sharma and Shakir Khan. In midst of way he took constable Ram Dular Mishra and armed forces. He had not informed the family members of Deo Karan Jha. He had had not informed the informant. They stayed whole night at the road. The informant and others arrived on their own. After recovery of dead body, he with the help of arms constable, brought to road. In para-26 had disclosed that Jiwach Thakur and Ram Balak Das have gave their statement at the P.S. In para-28 had specifically disclosed that he Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 33 had not seized lantern or lamp. He had seen the lantern and lamp at the time of inspection of P.O. but was not handed over by anyone. Then had said that he had not mention the aforesaid fact in the case diary. In para-29 had said that Dhairya Nath Jha had not produced torch. Then thereafter there happens to be contradiction of the witnesses in the remaining portion of para-29, para-30. He had further disclosed that he had not recorded statement of Lalbodh Jha.

33. So from the evidence of P.W.14, it is evident that he had not taken statement of Lalbodh Jha (P.W.13). In likewise manner no source of identification was disclosed by the witnesses before him. Nay the same was produced, seized by him. From his evidence it is further evident that although he had earlier visited Chamainiya Chaur with accused Bindeshwar Sharma and Shakir Khan, inspected the road but nothing abnormality was found by him. The next part of his evidence relates with apprehension of accused Rajdeo Jha from Pupri P.S. and further subsequent discloser of confessional statement. The aforesaid statement has been brought up on record as an exhibit which happens to be para- 39 of the case diary.

34. P.W.15 happens to be the Magistrate, Ajay Kumar Sinha who had conducted TI parade of Nageshwar Jha on Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 34

18.07.1985 wherein witness Dhairyanath P.W.1 had participated and identified the accused disclosing that he was one of the miscreant and was in police dress at the relevant time. During cross-examination he had disclosed that the I.O. had placed the witness before him. Accused was shown to him in dock and said that there happens to be old sign of incision over right side of nose. Further he disclosed that he had not found it necessary to conceal the same. It might be possible that other persons having such similarity have been put along with the accused in TI parade. The remaining witness P.W.16, 17 and 18 and are formal in nature who have exhibited relevant documents.

35. There is no chit of paper or any averments to support that the accused Rajdeo Jha was ever arrested by Pupri police. At least Station Diary entry would have been. In likewise manner, no requisition has been brought on record divulging the fact that accused Rajdeo Jha was taken into custody by P.W.14 before recording of his inculpatory confessional statement. This event got primacy as the P.W.14 has failed to exhibit so-called original inculpatory confessional statement of Rajdeo Jha. That apart from nature of evidence so adduced by the prosecution it had tried to connect the events in a chain of circumstance. a) Arrival of accused at the house of deceased. Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 35 b) Taking away deceased along with them. c) Presence of Maxi Taxi at Madhopur Chowk and further making query by Deo Karan Jha from Chowkidar to accompany to suggest that deceased Deo Karan Jha was taken away by aforesaid taxi. d) Inculpatery judicial confessional statement of accused Rajdeo Jha leading to recovery of dead body.

36. The learned lower court had found the chain complete as a result of which there happens to be recording of judgment of conviction and sentence against the appellants while others were given benefit of doubt.

37. Admittedly all the appellants / accused are not belonging to village –Bhalni, the first place of occurrence. Admittedly, it happens to be dark night. There happens to be specific disclosure by the P.W.14 that no source of light was seized by him. In likewise manner from his evidence it is evident that there happens to be a development in the evidence of the P.W.s on this score. In 2010 Cr.L.J. 2791 (M. C. Ali Sah Vs. State of Kerala) at Para-47 it has been held: “The incident took place in the dark. The trial Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 36 court noticed that none of the torches were recovered or produced by any of the concerned persons. There was also no moon light. In such circumstances, the reorganization of the six accused may not be possible. The trial court on this matter reached a reasonable conclusion”.

38. Now coming to second aspect, the prosecution had examined P.W.10, Meena Das a Chowkidar who had said that while he was patrolling, he had seen one Maxi Taxi staying at road and some query was made from inside Maxi Taxi. He perceived the voice to be of Deo Karan who inquired from him whether he would join him. This part again became suspicious in the background of the fact that it was not possible for the inmate of taxi to identify him in the background of distance what he disclosed that too having the dark night. Deo Karan Jha was forcibly lifted from his house by the accused persons and by such act he might have perceived some untoward incident which he is going to meet. Had it been Deo Karan Jha, it was not accepted from his end to keep silence just thereafter without raising alarm for his help. The aforesaid witness had not disclosed that he had seen either Deo Karan Jha or any accused sitting inside or he had perceived sound of murmuring. Without headlight being switched on the vehicle would not have proceeded and so having the head Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 37 light switched on the area must have been lighten enabling the P.W.10 to see what was and who were inside the vehicle. Apart from this, though the prosecution tired to corroborate the aforesaid through P.W.11, but again there happens to be inconsistency.

39. Now coming to the inculpatory extra judicial confessional statement of accused Rajdeo Jha, the prosecution had failed to produce the original copy thereof because of the fact that para-39 of the case diary stood as exhibit 15, is true copy. The I.O. had not disclosed during course of evidence that over inculpatory confessional statement of accused Rajdeo Jha, his signature was obtained. When there happens to be absence of original inculpatory confessional statement of Rajdeo Jha then the propriety of exhibit 15 comes under doubt because of the fact that there happens to be some sort of doubt over its genuineness. Not only this, as per Section 25 of the Evidence Act the confession made before the police happens to be inadmissible in the eye of law save and except leading to recovery which has been found admissible in light of Section 27 of the Evidence Act. Therefore, now this aspect has to be seen whether there happens to be consistent version of the prosecution on this score. Here it looks pertinent to refer Section 30 of the Evidence Act which makes the Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 38 aforesaid event legally admissible against the other co-accused also. That means to say the factum of inculpatory confessional statement leading to recovery has got much more value not only for the accused who had made the same rather the said event can be used against the other co-accused.

40. P.W.14 in para -8 of his examination-in-chief had categorically stated that he along with other police officials as well as accused Rajdeo Jha, Bindeshwar Sharma and Shakir Khan had gone to Chamainiya Chaur where they arrived at 11:00 P.M. and remained there for whole night. On the following morning at about 07:30 A.M. he had stepped down in water and reached at the ridge from where Rajdeo Jha had taken out the dead body. When this part of evidence of P.W.14 is taken together with the evidence of other P.W.s, P.W.5 in chief had said that on the pointing out of Rajdeo Jha dead body was recovered. P.W.7 another seizure list witness had disclosed that on the pointing out of Rajdeo Jha the dead body was recovered. So from evidence of these two seizure list witnesses it is evident that they have not supported the version of the P.W.14 that Rajdeo Jha had stepped down in the water gone to the exact place and then took out the dead body.

41. Then there happens to be evidence of other P.W.s and for that evidence of P.W.9, informant para-7 is being referred Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 39 wherein he had disclosed that dead body of his brother-in-law was recovered on 04-08-1984. Darogaji had arrested Rajdeo Jha since before and on his pointing out Darogaji had recovered dead body. P.W.12 has deposed that dead body of his brother Deo Karan Jha @ Bholi Jha was recovered on 04.08.1984 at about 07:30 A.M. from water at Chamainiya Chaur on the pointing out by Rajdeo Jha who was already arrested by the Darogaji. At that very time Rajdeo Jha was present. He also shown presence of Ramesh Chandra Jha, Binod Bihari Mishra, Manager Rai along with two police constables, Rajdeo Jha, Darogaji including himself. So from the aforesaid evidence it is evident that the version of the I.O. regarding recovery and seizure of dead body of deceased Deo Karan Jha @ Bholi Jha at the instance of Rajdeo Jha has become suspicious. The aforesaid event has also become suspicious in light of the fact that the I.O. had not informed the local police with regard to their stay at Chamainiya Chaur in spite of his disclosure under para-11 of his examination-in-chief where under he said that as the dead body was recovered from the place lying under Runi Saidpur P.S., therefore he had informed the same. No such document has been produced to suggest that P.W.14 had ever informed Runi Saidpur P.S. Apart from this the P.W. 14 had himself disclosed that he along with anther police official B.K. Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 40 Singh along with police constable, armed police guard in company with accused Rajdeo Jha had gone to Chamainiya Chaur but none of those have been cited as an witness at least to corroborate the factum of recovery of dead body of Deo Karan Jha @ Bholi Jha at the instance of accused Rajdeo Jha who had himself gone inside water and pointed out the exact location of concealment of dead body beneath water.

42. Another document which makes the story of prosecution doubtful over recovery of dead body from beneath water from Chamainiya Chaur, and for that seizure list exhibit 8 is to be looked into. From column 4 of the aforesaid exhibit 8 the I.O. had incorporated:- bl dkaM ds izkFkfedh ds uketn vfHk;qDr Jh jktnso >k] iq= Lo0 lR;nso >k] lk0 Hkyuh enu] Fkkuk cktiV~Vh ds fn;s x;s LohdkjksfDr C;ku ,oa muds }kjk tkdj fu’fpr LFkku dk tgkW ls mijksDr xokg ,oa vU; xzkfe.kksa ds le{k ftu yksxks us dh e‘(cid:217)kd Jh nsodj.k >k mQZ Hkksyh >k lk0 Hkyuh enu Fkkuk cktiV~Vh ds yk’k dks igpkuk ykyiqj dks fn;k ds peSfu;k pkSj ds jke pUnz flag lk0 jlyiqj Fkkuk Mqejk ,oa orgq jk; lk0 ykyiqj Fkkuk lSniqj ds [ksr ds vkM+ ij ikuh esa Mqckdj Nqik dj j[kk gqvkA

43. And the aforesaid disclosure as stated above not been supported by the seizure list witnesses that means to say Manager Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 41 Rai (P.W.7) as well as Ram Chandra Jha (P.W.5). Another document on this score happens to be the inquest report, exhibit

9. From perusal of Exhibit 9, again column 4 suggest:- fpr voLFkk esa ikuh ds vanj vkM+ ij j[k dj gkFk&iSj gius gq, diM+ks dks Qkj dj ckW/kk gqvk m(cid:217)kj fn’kk esa lj ,oa nf{k.k fn’kk esa iSj j[kdj igus gq, diM+ks ds VqdM+s ls vkM+ esa ikuh ds vanj ckW/kdj fLFkj voLFkk esa NksM+k gqvk ik;k x;kA vkW[k [kqyk] eqWg [kqyk ,oa ikuh esa jgus ds dkj.k ’kjhj Qqyk gqvkA

44. Neither the seizure list nor the inquest report would have been prepared inside while the dead body was inundated. So preparation of these documents disclosing the facts as stated above is suggestive of the fact that the I.O. P.W.14 having fallen under trap of prosecution mention those beyond the actual affair. The aforesaid two documents as well as the evidence of the witnesses with regard to identification of dead body of deceased Deo Karan Jha @ Bholi Jha again become suspicious in light of evidence of P.W.4 the doctor who at the time of postmortem conduct on

05.08.1984 at 12:50 hours found the dead body full of meggaty as well as was completely decomposed which neither the inquest report nor the seizure list speaks. Its absence has purposely been made at the hands of prosecution so that they could be able to claim identification of the dead body. At this stage, one should not Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 42 lost sight of other circumstances. Rajdeo Jha was already arrested on 03-08-84. His confessional statement was taken on that day. Dead body was already under water and the same was recovered on 04-08-84. Then in that event, the dead body must have been kept beneath water before 03.08.1984. In such situation, as per Modi Medical Jurisprudence & Toxicology (23rd Edition) Page

605. “The skin of the hands and the feet shows a bleached, corrugated and sodden appearance, after the body has laid in water for 10 to 12 or more hours. This condition of skin is known as the washer women’s hand. It is first seen in the fingertips within three to four hours and later by 24 hours, in both the hand. It proves only that the body was immersed for a prolonged time without reference to the cause of death”. No such sign over dead body was detected by the Doctor while conducting postmortem. At page 607, it has been held that: “In the presence of putrefaction or mutilation of the body by acquatic animals, even the identity of the body becomes difficult. The doctor had found the dead body decomposed and so there was no possibility of identification and that happens to be reasoned behind that I.O. had taken signature of so many person Patna High Court CR. APP (DB) No.499 of 1989 (4) dt.10-04-2012 43 intentionally and knowingly support factum of identification.

45. Thus, after analyzing and scrutinizing the relevant materials on the factum of inculpatory extra judicial confessional statement leading to recovery of dead body at the instance of Rajdeo Jha appears to be not free from doubt. Having the aforesaid deficiency as well as having absence of positive evidence over source of identification coupled with the parties on inimical term along with development, exaggeration in the evidence of P.W.s which P.W.14 had accepted, appears, to be sufficient to undo the finding recorded by the learned lower court. The identification of Nageshwar Jha during TI parade by P.W.1 is not going to improve the case of the prosecution in light of persisting deficiency as referred above Hence the judgment of conviction and sentence recorded by the learned lower court is set aside. Consequent thereupon appeal is allowed. All the appellants are on bail. Hence are directed to be discharged from its liability. (Shyam Kishore Sharma, J) PN/- (Aditya Kumar Trivedi, J)