1 CRIMINAL APPEAL No.316 OF 1988 - - - - Against the judgment of conviction and order of sentence dated 31.5.1988 passed by the Sessions Judge, East Champara, Motihari, in Sessions Trial No.1 of 1986. - - - - Ramdeo Mahto son of Khelawan Mahton, resident of village Ibrahimpur, Police Station Paharpur, District East Champaran … … … Appellant Versus The State of Bihar … … … Respondent For the appellant: Shri Neeraj Kumar @ Sanidh,Advocate, Amicus Curiae. For the State: Sushri Shashibala Verma, A.P.P. - - - - P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA - - - - Dharnidhar Jha & Akhilelsh Chandra, JJ.- None appears on behalf of the appellant to argue the appeal. We have requested Shri Neeraj Kumar alias Sanidh, Advocate, to assist us which he has readily agreed to do. 2. The solitary appellant was tried by the learned Sessions Judge, East Champaran, Motihari by framing charges under sections 302 and 201 of the Penal Code with acquitted accused Chingi Sah. While delivering the judgment on 31.5.1988 the appellant was found guilty of committing the offences under Sections 302 and 201 of the Penal Code and was directed to suffer rigorous imprisonment for life under Section 302 of 2 the Penal Code and rigorous imprisonment for one year under Section 201 of the Penal Code. 3. The case is related to the alleged killing of Kaushalya Devi who was the grand daughter of P.W. 8 Ram Chatri Mahto alias Ram Chatteri Mahto and who was married to the present appellant Ramdeo Mahto. It is not denied that after the marriage the lady was residing at her father’s house and the allegation was that the appellant could not take back his wife to his house. It appears that she had gone to her husband’s house sometimes prior to the occurrence. One Babu Lal(not examined) informed P.W. 8 that Kaushalya Devi was not being seen in her husband’s house and might be that she had been murdered. 4. The informant came to the house of the appellant and also searched for the lady but could not get her. Subsequently, a gunny bag was found in the field of Shahjanhan Mian which information was given to the informant by one Hira Lal Mahto, P.W. 2, and, accordingly, the bag was retrieved and it was found that a headless dead body was packed in it. The informant P.W.8 claimed that it was the dead body of his grand daughter. On the above statements, the F.I.R. was lodged and the case was investigated into and the appellant and acquitted accused Chingi Sah were put on trial which ended in the conviction of the 3 appellant and acquittal of accused Chingi Sah, as indicated above. 5. The defence of the accused persons was of complete innocence and they did not offer any explanation as to how Kaushalya Devi disappeared from the house of the present appellant and considering this aspect, the appellant was convicted. 6. P.Ws. 1 to 7 turned hostile and gave statement that they did not know anything about the occurrence or as to how Kaushalya Devi disappeared. However, P.Ws. 6 and 7 have stated that the relationship between the appellant and Kaushalya Devi was very cordial. P.W.8, the informant of the case, admittedly was not the eye witness and he claimed learning about the occurrence from one Babulal who was not examined. The identification of the dead body appears doubtful inasmuch as P.W. 8 stated that he identified the dead body by clothes which were found on it. He has further stated that it was a red- colour- sari which had been given by the father of the bride to her. Further, the evidence of P.W. 10 the Investigating Officer indicates that the dead body which was found packed in the gunny bag had a sari of parrot-green-colour(Sugapankhi)over it. Thus, it is very difficult to uphold that the dead body which was recovered from the gunny bag could be that of 4 Kaushalya Devi as there was no identification by looking to the trunk part of it and the evidence on identification as given by the Investigating Officer and the informant appears contradictory. 7. The learned trial Judge has drawn an adverse inference on account of the appellant not giving any explanation as to how his wife disappeared from his house. The learned trial Judge held that the appellant being the husband owed a responsibility of explaining the manner of disappearance or otherwise of his wife. There is no evidence on record that the relationship between the wife and the husband was strained or bad and that there was no such element in the relationship on account of which the appellant could have planned to cause her disappearance. The evidence of P.Ws. 6 and 7 indicates that relationship between the couple was cordial. P.W. 8, the informant of the case, has stated in cross-examination in paragraph 5 that after the lady had remained in her Sasural for 5-6 months he could learn about her disappearance. The Doctor, P.W. 9, in his evidence stated that it was a decomposed dead body and was emitting foul smell. However, the evidence of the Doctor in paragraph 4 indicates that the death could have been caused within 3 to 5 days of the occurrence. Thus, it could be very difficult for us to persuade ourselves to accede to the view taken 5 by the learned trial Judge that not offering an explanation about the disappearance of the lady could be the conclusive circumstance for upholding the order of conviction. 8. Having said the above, we find that the judgment of conviction and order of sentence are not sustainable in law. Accordingly, we set aside the same and acquit the appellant. 9. In the result, the appeal is allowed. The appellant who is on bail shall stand discharged from the liability of his bond. ( Dharnidhar Jha, J.) ( Akhilesh Chandra, J.) Patna High Court The 25th June,2010 Kanth/N.A.F.R.