========================================= Rajendra Pandit son of Shri Borhan Pandit, R/o village- Amari, P.S.- Darhara, District v. The State of Bihar
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.413 of 1991 ========================================= Against the judgment of conviction and order of sentence dated 27th August, 1911 passed by Shri Birendra Singh, 8th Additional Sessions Judge, Munger in Sessions Case No. 45 of 1986. ========================================= Rajendra Pandit son of Shri Borhan Pandit, R/o village- Amari, P.S.- Darhara, District- Munger……..………………..... .... Appellant Versus The State of Bihar………………………………..…….... .... Respondent/s ========================================= Appearance : For the Appellant/s : Mr. Suraj Narayan Yadav, Advocate Mr. Pancha Nand Pandit, Advocate For the Respondent/s : Mr. Ajay Mishra, APP ========================================= CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) Date: 04-09-2013 This appeal, by the sole appellant, has been preferred against the judgment of conviction and order of sentence dated 27.8.1991 passed by the learned 8th Additional Sessions Judge, Munger in Sessions Case No. 45 of 1986 whereby the appellant has been held guilty for the offences punishable under Sections 302 and 201 of the Indian Penal Code and he has been sentenced to rigorous imprisonment for life and for seven years respectively and to run concurrently. 2. Case of the prosecution is based upon the fard-beyan of Wakil Sharma (PW 8) which was recorded on 4.6.1985 at about 8.30 PM at Dashrathpur Chouk under Dharhara Police Station District- Munger by Shri Prakash Sharma (PW 11) who was the Patna High Court CR. APP (DB) No.413 of 1991 dt.04-09-2013 2 Officer In-charge of Dharahara Police Station and the
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first Investigating Officer. In the fard-beyan it is alleged that the informant’s elder brother i.e. Bhuneshwar Sharma had sold some of his lands and paid Rs. 7,000/- to the appellant for the appellant promised to get him employment. For over last two years, the appellant could not arrange for his employment and as such, on 21.5.1985, at about 5.30 PM, in the evening, the deceased Bhuneshwar Sharma, the resident of village Panchrukhi under Dharhara Police Station, went to village Amari under the same Police Station to seek refund. He did not return in the night. When he did not return in the morning, the informant went to the house of the appellant and inquired. The appellant admitted that the deceased had come to him in the evening but had left. The informant thereafter, went searching for his brother at places of his relations including he went to Howrah but could not find his brother. He now suspected that the appellant might have killed him. Thereafter, he again went to village Amari where one Yogendra Sharma, who is PW 4, now told him that he had seen the deceased with the appellant at about 8.00 PM in the night of 21.5.1985. He accordingly, now, suspected that the appellant might have killed his brother. Upon this statement being recorded, it was sent to the Police Station for registration and investigation was taken up. On the same evening, it appears that upon certain information, the Police went to a well which was located in agriculture field nearby. It was evening and allegedly lot of foul smell was coming from it. He posted people to guard it and next day Patna High Court CR. APP (DB) No.413 of 1991 dt.04-09-2013 3 with the help of villagers he arranged for a pump to be installed. Water was pumped out and a leather belt, a single piece of chappal and few pieces of hesian cloth was accordingly, seized. While the Police was there it was noticed that there were some vultures who were descending nearby. He followed the flight path and found the skeleton lying in the agriculture field near the river stream. This was again seized and sent for post mortem. Thereafter, the Police came to the house of the appellant and arrested the appellant from there. After investigation chargesheet was filed. Upon cognizance being taken, the case was committed to the court of Sessions, charges were framed and the appellant having pleaded innocence was tried and convicted. Hence the appeal. 3. In order to establish the prosecution case, the prosecution has examined in all 12 witnesses. The entire prosecution case is based upon proof of circumstances, allegedly, implicating the appellant. There is admittedly no eye witness. 4. PW 1, Suresh Kumar Mandal, is a seizure list witness in respect of seizure of single piece of chappal, one black belt and few pieces of hesian cloth from the well. PW 2 is Brahmdev Mandal. In court he states that about 2 years prior to the occurrence in front of him the deceased Bhuneshwar Sharma having sold his lands had given Rs. 7,000/- to the appellant to get him employment. He was questioned weather he had been interrogated by the Police which he accepts. At this stage itself, we may mention that when the Investigating Officer is examined, he admits that he had taken the Patna High Court CR. APP (DB) No.413 of 1991 dt.04-09-2013 4 statement of this witness (PW 2) but he stated that this witness had said that he had heard in the village that the deceased having sold some of his lands had paid the appellant some money to get employment. PW 3 is Brajmohan Sharma. He is merely tendered. PW 4 is Yogendra Sharma. For the prosecution he is the main witness. He belongs to village Amari i.e. the village of the appellant. He states that on 21.5.1985 in the night at about 8.00 PM, he had seen the deceased in the house of the appellant. The appellant does not deny this fact. He allegedly, heard the deceased asking for refund of his money. PW 4 Mina Kumari is the daughter of the deceased and she stated that her father had given money to the appellant for getting employment. PW 6 is Indira Devi the wife of the deceased. She also corroborates this fact that her husband had sold some lands and paid Rs. 7,000/- to the appellant for getting employment. She admits that the appellant used to visit their house. She also admits that the deceased used to visit the house of the appellant. She admits in cross-examination that the appellant and the deceased were friends. She is questioned about the articles found from the well, she says that if they were shown to her, she could have identified them which clearly implies that these articles were never shown to her for identification as the items belong to her husband or not. PW 7 is Vijay Pathak. He is supposed to be a seizure list witness to the articles found in the well as well as the skeleton. He is declared hostile. Though he accepts that he had signed the seizure list, he was not aware of what was seized. PW 8 is Wakil Sharma, the informant Patna High Court CR. APP (DB) No.413 of 1991 dt.04-09-2013 5 and the younger brother of the deceased Bhuneshwar Sharma. He states in his chief that he is separated from his brother. His brother, on 21.5.1985, had gone to the village of the appellant, which is about three miles away, in the evening asking for refund of his money but did not return in the night nor in the next morning. He accordingly, went to the house of the appellant. The appellant stated that the deceased had come in the evening but had left. He, then, searched places of other relatives. He also went to Howrah where his brother used to frequently go and stay in the railway waiting room but could not find his brother. He, then, met Yogendra Sharma (PW 4), who now confirmed that he had seen his brother with the appellant at about 8.00 PM on 21.5.1985. It is this suspicion that led to his filing of the fard-beyan. In his cross-examination he further states that when the articles were fished out of the well, he was present there though this is not mentioned in the seizure list. When the skeleton was found and seized, he was present there but he is not a witness to either of the seizure lists. The informant further agrees that earlier he had no suspicion about appellant’s involvement in any manner but only upon Yogendra Sharma (PW 4) having told him that the deceased was at the appellant’s house in the evening, his suspicion arose. He further, in court, identifies the belt and the chappal fished out of the well as the belongings to his brother. Suggestion was given that test identification parade was to be held by the Block Development Officer. He denies the same. We, then, have PW 9, Naresh Prasad Sharma, who is the second Investigating Officer. He Patna High Court CR. APP (DB) No.413 of 1991 dt.04-09-2013 6 merely filed the chargesheet. He has not recorded the statement of
Legal Reasoning
any witnesses. For the sake of records, we may note, PW 11 Sri Prakash Sharma, the first Investigating Officer who was also, at that time, the Officer In-charge of Dharahara Police Station and had recorded the fard-beyan as well. He is quite a confused gentleman. He states that he received secret information about a crime and left the Police Station. On way, in the market, he met the informant. Who on 4.6.1985 gave his information as noted above. It was sent to be registered as a case because it discloses a cognizable offence. It is pertinent to note that this fard-beyan is recorded at 8.30 PM on 4.6.1985 and registered immediately. He, then, came to know that in an agriculture filed there is a lot of foul smell coming from a well. He goes there on the same night and as nothing could be done, posts guard there. In the morning, with the help of villagers, he arranged for a pump and drained the well from which he is able to fish out one black leather belt, a singular piece of plastic chappal and few pieces of hesian cloth. He prepares seizure list. He then, noticed some vultures descending on land nearby. He follows them and found a skeleton in the field near a river. He seized it. In the cross- examination he has questioned as to who identified the belt and the chappal to be of the deceased, who identified the skeleton to be of the deceased. He admits that he is not aware of it. He does not remember it and he has not noted it. He, then, admits that he had taken statements of various persons but had not noted it. Statements of several persons were noted in a composite form. He is, then, Patna High Court CR. APP (DB) No.413 of 1991 dt.04-09-2013 7 questioned about holding TIP in respect of the belt and the singular piece of chappal. He states that a request was made to the B.D.O. for this purpose but it does not appear that TIP was held. He is questioned about the statement made by PW 2 Brahmdev Mandal and he contradicts him stating that in course of investigation he had said that he heard from the villagers that the appellant was paid money by the deceased contrary to the statement as made in the court by the said witness (PW 2). 5. Now, we may refer to the remaining two witnesses i.e. PW 10 who is Dr. Baidya Nath Saran and PW 12 Dr. Anirudh Prasad. Dr. Baidya Nath Saran is the Professor of Forensic Medicine at Bhagalpur Medical College and Hospital where the skeleton was sent for forensic report and Dr. Anirudh Prasad is the doctor at the Munger Sadar Hospital who alleged to have conducted post mortem examination of the skeleton. Dr. Anirudh Prasad (PW 12) has nothing to say in his deposition except that having received the skeleton, he could do little. He accordingly, sent it to the Forensic Department of Bhagalpur Medical College and Hospital because there was hardly any thing but the bones. We, then, refer to Dr. Baidya Nath Saran, Professor of Forensic Medicine. He states that the skeleton was intact but there was hardly any flesh or tissues left. We think the doctor is correct. He has noted two very important things that the skull is still attached to the vertebra and all the bones forming a skeleton are attached meaning thereby that the death had recently taken place. He had, then, identified it to be a male skeleton Patna High Court CR. APP (DB) No.413 of 1991 dt.04-09-2013 8 of the age around 40 years (+/- five). He had identified an injury on the skull which could possibly be caused by hard blunt substance and could have been possible cause of death of the person. He was not in a position to give any further evidence much less connected to the deceased. This is the entire evidence on behalf of the prosecution. 6. Learned counsel for the appellant submits that accepting the entire evidence of the prosecution, the only fact that stand established is that the deceased had visited the appellant’s house and was last seen at about 8.00 PM on 21.5.1985. The deceased was not heard or seen thereafter. The fard-beyan raising suspicion against the appellant was lodged on 4.6.1985. i.e. almost two weeks after his disappearance. The deceased had allegedly given Rs.7,000/- to the appellant more than two years back seeking some employment. Even conceding that the belt and solitary chappal recovered were of the deceased, there is no further evidence at all to connect the skeleton to the deceased. Upon this evidence, can there be any conclusion drawn that the appellant was responsible for killing the deceased. 7. On the other hand learned APP submits that the circumstances as proved against the appellant raises grave doubt and point suspicious finger at the appellant only. Appellant was rightly convicted. 8. Having considered the submissions, the Trial Court, in our view, erred in convicting the appellant. In our view, there is absolutely no material to point to the guilt of the appellant. Patna High Court CR. APP (DB) No.413 of 1991 dt.04-09-2013 9 The maximum that the prosecution can say is that the deceased had visited the house of the appellant which the appellant also does not dispute. But there is nothing thereafter. The prosecution even gave up the plea that the skeleton was of the deceased. The investigation was all on suspicion. The Investigating Officer did not know as to who identified the belt and chappal to be the belongings of the deceased because there is nothing, in this regard, on record. He admits that he had no idea about the person who gave the idea regarding the skeleton belongs to the deceased. Then, what else is the circumstance which is against the appellant ? 9. Learned counsel for the appellant is right in submitting that the law in this regard is well settled. Starting from the case of Hanumant Govind Nargundkar V. State of M. P., reported in AIR 1952 SC 343, traveling to the case of The State of Punjab V. Bhajan Singh and Others reported in AIR 1975 SC 258, then to the case of Bodhraj @ Bodha & Ors. Versus State of Jammu & Kashmir reported in (2002) 8 Supreme Court Cases 45 and to the case of Rukia Begum & Ors. Versus State of Karnataka reported in (2011) 4 Supreme Court Cases 779 and ending with Krishnan @ Ramasamy & Ors. vs. State of Tamil Nadu reported in 2014 (3) PLJR 403 (SC). 10. The law is settled. When a person is to be convicted upon proof of circumstances, then, the chain of events should be complete and unbroken leading to a singular conclusion about the guilt of the accused and there should be nothing that could possibly Patna High Court CR. APP (DB) No.413 of 1991 dt.04-09-2013 10 suggest his innocence. The circumstances must be, in other words, incompatible to his innocence. In the present case, apart from one witness disclosing seeing the deceased with the appellant at about 8.00 PM on 21.5.1985 which disclosure is made after two weeks, we have nothing further to implicate the appellant. Where is a chain of events much less unbroken? It is equally well settled that however, strong suspicion may be, suspicion does not take the place of proof, for its upon proven facts, evidence that a conviction can be sustained and not suspicion and surmises, however, strong they may be. 11. Thus, we find that there is absolutely no material, no evidence to justify the conviction of the appellant. The appellant is in fact entitled to a clean acquittal. We, therefore, have no hesitation in allowing the appeal, setting aside the order of conviction and sentence. The appellant shall be freed from the liability of the bail bonds. (Navaniti Prasad Singh, J) (Jitendra Mohan Sharma, J) avin/-AFR U T