CRIMINAL APPEAL No.122 OF 2004 (DB) Against the judgment of conviction and order of sentence dated 22nd December, 2003 passed in Sessions Trial No. 76 of 1999 by Sri Ravi Prakash Dhar Dubey, Additional Sessions Judge, Fast Track Court, No. III, Bettiah, West Champaran. *********** RAJENDRA PRASAD PATWA SON OF ASHARFI LAL PATWA, RESIDENT OF VILLAGE- CHANPATIA, P.S-CHANPATIA, DISTRICT- WEST CHAMPARAN ………………………………………………………………………….APPELLANT Versus STATE OF BIHAR ……………………………………….RESPONDENT. *************** For the Appellant :- Mrs. Veena Kumari Jaiswal, Advocate, Amicus Curiae For the State :- Mr. Ashwini Kumar Sinha, APP ************************ P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD S. K. Sharma & Gopal Prasad, JJ. The sole appellant has preferred this appeal against the judgment of conviction and order of sentence dated 22.12.2003 passed in Sessions Trial No. 76 of 1999 by the learned Additional Sessions Judge, Fast Track Court No. III, Bettiah, West Champran whereby he was convicted under Sections 302 and 201 of the Indian Penal Code and he has been sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and he has further been sentenced to undergo rigorous imprisonment for three years 2 under Section 201 of the Indian Penal Code. It was ordered that both the sentences shall run concurrently. 2. The prosecution case, as arises from the fardbeyan of the informant Rabindra Prasad is that he is making statement on 3.4.1998 at 11.45 P.M. at the Veranda of one Yamuna Prasad near the dead body of his son Shrawan Kumar before the Sub-Inspector of Police of Chanpatia Police Station that on 3.4.1998 his son was playing near his house at Durga Mandir but he did not saw his son since 3.00 P.M. and then he started making out a search for him but he could not find out and thereafter, he went to announce on mike about missing of his son in the nearby area but could not find him out. At about half past seven in the evening when he returned to his house then at 8.30 P.M. one Neeraj Kumar (not examined) son of Vermajee came and informed that the son of the informant is sleeping in the Veranda of Yamuna Prasad. The informant rushed there and found his son dead and found froth coming out from the nose of his son and on head, face and nose he found the injury of some hard blunt substance. On information the police came and on the sound of weeping and cry several people collected and one Ramesh Prasad son of Yamuna Prasad disclosed that when he came after closing his shop then he found a boy sleeping at Veranda then he called the lantern from the wife of Vermajee and saw Shrawan Kumar lying there, whereas the fact is that ten minutes prior to that when Yamuna Prasad came on the 3 Veranda but he did not find Shrawan there. On cry several persons collected there but the neighbour Rajendra Prasad Patwa and his family members did not come there. The further case of the prosecution is that the house of Rajendra Prasad Patwa remained close and the informant doubted the complicity of Rajendra Prasad Patwa due to old enmity and then Deepak Kumar (PW 7), Mahabeer Prasad (not examined) and Pradeep Kumar (PW 2) got the door of Rajendra Prasad Patwa opened on which they found his bed wet and smell of urine from the bed. They also found a blue jersey concealed in wet condition. Jersey was seized and on inquiry about the jersey the appellant Rajednra Prasad Patwa and his daughter Dolly Kumari remained silent. It was doubted that Dolly Kumari and Rajendra Prasad Patwa the appellant might have killed the son of informant by hard blunt substance. It is further alleged that earlier due to some enmity Dolly Kumari had threatened to kill him. Further case is that Dolly Kumari had committed theft in the house of Saral Mali which was protested by the daughter-in-law of Yamuna Prasad. So it is doubted that the appellant Rajendra Prasad Patwa and Dolly Kumari might have committed the murder and thrown the dead body in the house of Yamuna Prasad to falsely implicate him. 3. On the basis of aforesaid fardbeyan of Rabindra Kumar the FIR was lodged and after investigation Chargesheet was submitted. Consequently cognizance was taken and the 4 case was committed to the Court of Sessions. After commitment the charges were framed under Sections 302 and 201 of the Indian Penal Code and explained to the appellant to which he pleaded not guilty and claimed to be tried. 4. During trial eight witnesses were examined on behalf of the prosecution; they are Ramesh Prasad (PW 1), Pradeep Kumar (PW 2), Mahabeer Prasad (PW 3), Prabhawati Devi the mother of the deceased (PW 4), Dr. Sunil Kumar (PW 5), the informant Rabindra Kumar (PW 6), Deepak Kumar (PW 7) and Md. Ali (PW 8). 5. Documentary evidences adduced on behalf of the prosecution are: Signature of Pradeep Kumar on inquest report (Ext.1), signature of Mahabeer Prasad on seizure list (Ext. 1/1), signature of Pradeep Kumar on seizure list (Ext. 1/2), post mortem examination report (Ext.2), fardbeyan (Ext.3), seizure list (Ext.4), inquest report (Ext.5) and formal FIR (Ext. 6). 6. On consideration of oral & documentary evidence the learned trial Court convicted and sentenced the sole appellant as stated above at the outset. 7. The Amicus Curie appearing for the appellant contended that except the doubt there is no legal evidence to infer that prosecution has proved the case beyond reasonable doubt. 8. The learned counsel for the State however, contended that the prosecution has proved its case beyond 5 reasonable doubt. 9. Hence on the respective submissions of the parties the question for consideration is whether the prosecution has been able to prove the charges beyond all reasonable doubts or not. 10. PW 1 in his evidence has stated that he saw the child sleeping then he called his neighbour Vermajee and his wife and disclosed that the child is of Rabindra Prasad. It was about 8.30 P.M. on 3.4.1998 and thereafter, Rabindra Prasad and his wife came and started weeping as the child was dead and froth was coming out from mouth. The police informed and search was made in the house of appellant Rajendra Prasad Patwa as he has not come at the site of the occurrence and from the house the blue jersey was recovered from his house which was identified by the wife of Rabindra Prasad. However, this witness in cross-examination has stated that he had not entered into the house of the appellant but he saw Office In- Charge coming out from the house of Rajendra Prasad Patwa with the said jersey. He has also stated that by the side of the house of the appellant Rajendra Prasad Patwa there is house of Saran Mali. 11. PW 2 Pradeep Kumar however, supported the prosecution case regarding recovery of the dead body of the deceased but he has stated that the house of Rajendra Prasad Patwa is adjoining to the house of Yamuna Prasad and he saw 6 that the pant of the deceased was wet. However, this witness has stated that there was search and seizure of the house of Rajendra Prasad Patwa but he did not enter into the house and a blue jersey was recovered from the house of Rajendra Prasad Patwa. He has proved his signature on the seizure list which has been marked as Ext. 3. This witness though is the witness of the seizure list and has proved his signature on the seizure list but he has stated that he had not been to the house of Rajendra Prasad Patwa during search and hence not reliable on this point. This witness in his cross-examination has stated that the paper which was being written by Daroga was printed one and he signed on the said paper at the instance of Daroga and on the said paper Deepak has also signed. 12. PW 3 in his evidence has stated that a jersey and a half paint were recovered from the house of Saral Bhagat and Daroga has prepared the seizure list and after reading the same he signed on the same. His signature on the seizure list has been marked as Ext.1/1 and the signature of Pradeep Kumar has been marked as Ext.1/2. He has also stated that the inquest report of the deceased Shrawan Kumar was prepared before him which was prepared in carbon copy and he has proved the signature on the carbon copy of the same. In cross- examination he stated that Saral Bhagat is not the accused in this case and there is a wall in between the house of Saral Bhagat and Rajendra Prasad Patwa. 7 13. PW4 is the mother of the deceased and she has stated that Shrawan aged about four years was playing by the side of the Mandir but he became traceless and an announcement was made on mic and then Neeraj Kumar came and disclosed that her son was lying on the Veranda of Yamuna Prasad. When she went there then found froth was coming out from the mouth and nose and found him dead. There is injury on his head and face. Thereafter, the police came and arrested Dolly Kumari and Rajendra Prasad Patwa. She has stated that Dolly Kumari was of suspicious character and has threatened to kill her son and she has also committed theft. This witness has stated that she doubts that Dolly Kumari had murdered his son and further on question she has stated that she doubts that Rajendra Prasad Patwa and Dolly Kumari have murdered her son. 14. Now from the evidence of this witness only fact comes out that her son was missing while he was playing by the side of Mandir and later on his body was found in the Veranda of Yamuna Prasad and when she came there then she found him dead. She has further stated about the enmity with Dolly and Rajendra Prasad Patwa and she doubts their hands in the murder of her son. 15. PW 5 Dr. Sunil Kumar has conducted autopsy on the person of the deceased and found external injuries. He found rigor mortis was present, two abrasion of size 1 1/2” and 8 1/2” x 1/2” at the base of the neck, two bruises of size 1/2”, 1 1/2” x 1/2” at the right side of skull and one abrasion on nose 1/2” x 1/2”. On dissection of the dead body blood and blood clots were found present beneath the injury no. 2. There was lenial fracture of skull and there was subdural haematoma and time elapsed since death and post mortem was within 24 hours. However, it is pertinent to mention here that the post mortem was conducted on 4.4.1998 at 11.00 AM and death ceased to be within 24 hours i.e. in between 11 AM on 4.4.19098 to !! AM 3.4.1998. 16. PW 6 is the informant. This witness in his evidence has also stated that his son was found missing while he was playing nearby Durga Mandir and he announced on loudspeaker regarding his missing and the dead body was found at the Veranda of Yamuna Prasad. This witness has stated that he found the smell of urine and blue jersey was recovered from the house of the appellant Rajendra Prasad Patwa which belongs to his son. This witness has further stated about the enmity with Dolly Kumari and Rajendra Prasad Patwa as stated by PW 4 the mother of the deceased. 17. PW 7 is Deepak Kumar. He has also stated the same fact about the finding the body of the deceased at the Veranda of Yamuna Prasad, however, he is the seizure list witness. He has stated that one jersey of blue colour was recovered from the house of Saral Bhagat which was identified 9 by Rabindra Prasad. 18. PW 8 is the formal witness. Hence from the entire evidence it is apparent that there is no eye-witness to the occurrence. None of the witnesses has seen either the assault on the person of the deceased or the manner in which the occurrence took place. However, only fact emerged that the dead body of deceased Shrawan Kumar was found at 8.30 P.M. at the Veranda of Yamuna Prasad and thereafter it was informed to PW 4, the mother of the deceased, and then Rabindra Prasad, the informant, and PW 6 and his wife PW 4 came and found the deceased dead. Thereafter, they doubted about the hands of Rajendra Prasad Patwa and his daughter Dolly Kumari and the second circumstance is that the whole of the neighbours came to the place of occurrence but Rajendra Prasad Patwa and his daughter Dolly Kumari did not come. It has come that the informant doubted and then the door of Rajendra Prasad Patwa was got opened by the witnesses and it is alleged that the bed of Rajendra Prasad Patwa was found wet and smell of urine was coming from the same. However, it has further come that a blue jersey of the boy was recovered from the courtyard in between the house of Rajendra Prasad Patwa and Saral Bhagat. However, some of the witnesses have stated that seizure was from the house of Rajendra Prasad Patwa and some of the witnesses have stated that the seizure was from the house of Saral Bhagat and hence, though there is no witness to 10 the occurrence, none has seen that how he was taken over, none has seen that how Shrawan Kumar was lying at the Veranda of Yamuna Prasad and nor anyone has seen that how he came there and only evidence is that he was found lying dead at the Veranda of Yamuna Prasad. However, the evidence is that when the dead body was recovered and information was given to the people then there was a hue and cry but Rajendra Prasad Patwa did not come out of his house. However, it has come in evidence of the prosecution witnesses itself that there was enmity between the informant and Rajendra Prasad Patwa as the daughter of Rajendra Prasad Patwa is alleged to have committed theft and further that Dolly Kumari was exposed for the theft and hence that is the reason Rajendra Prasad Patwa may not have come at the place of occurrence and from that fact inference cannot be drawn that it is a chain of circumstance to prove that the guilt is proved. The third circumstance is that the blue jersey was alleged to be recovered from the house of Rajendra Prasad Patwa, but the said jersey was recovered from the wall in between the house of Saral Mali and Rajendra Prasad Patwa. However, there were three circumstances which are not sufficient to form a chain of circumstances to draw an irresistible conclusion for the guilt of accused. Since this is a case in which there is no eye witness to the occurrence or to any part of the occurrence, hence, this case comes in the category of circumstantial evidence. The three circumstances 11 are only that the dead body was found on the Veranda, the appellant Rajendra Prasad Patwa did not come after recovery of the dead body at the place of dead body found on hue and cry and the third is a blue jersey having been alleged to be recovered from the wall in between the house of Rajendra Prasad Patwa and Saral Mali. 19. Now the question is whether these three facts complete the chain of circumstance which proves the guilt of accused in all probabilities to come to an irresistible conclusion that the appellant has done the death and that Rajendra Prasad Patwa can be held guilty of the murder. 20. It is true that it is a matter of great regret that a cold blooded murder go unpunished, but, however strong a doubt may be, it cannot take the place of proof and there is a great distance between may be proof and must be proof and this distance of may be proof and must be proof, has to be traveled by reliable, cogent and unimpeachable evidence and a doubt may not be treated as proof, but proof must be beyond all reasonable doubts. The evidences on record show that there is no eye witness to any part of the occurrence, none has seen deceased Shrawan Kumar in the house of Rajendra Prasad Patwa or that his daughter took him away or taking him back and the three circumstances which emerge from the prosecution evidences are not sufficient to conclude that the chain of circumstances is established pointing out the guilt of the 12 appellant Rajendra Prasad Patwa to hold him guilty of the said murder. 21. Hence, taking into consideration the entire circumstances of the case, we find and hold that the prosecution has not been able to establish the charges levelled against the appellant beyond all reasonable doubts and the learned trial Court erred in holding him guilty merely on the basis of conjectures and surmises that the accused has been guilty. Hence, the judgment of conviction and sentence is set side and the appellant is ordered to be released forthwith, if not wanted in any other case. 22. In the result, this appeal is allowed. 23. Let a copy of this judgment be served to Mrs. Veena Kumari Jaiswal, Advocate, Amicus Curiae who will get her remuneration as per the provision from the Patna High Court Legal Services Committee. (Shyam Kishore Sharma, J.) (Gopal Prasad, J. Patna High Court, Patna Dated 7th April, 2010 Avin/N.A.F.R.