CRIMINAL APPEAL No.414 OF 1988 -------- Against the Judgment and order of conviction and sentence dated 21st July, 1988 passed in S.T. No. 191 of 1987 by Shri B.K. Sinha, No.1, Sessions Judge, East Champaran, Motihari. ---------- Mufildeo Singh, son of late Kailash Singh, resident of village – Bakarihari, P.S. Dhaka, District – East Champaran …………… Appellant Versus The State of Bihar ……….. Respondent ---------- For the Appellant : Shri Ansul, Advocate For the State : Sushri Shashi Bala Verma, APP -------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA ------------- Dharnidhar Jha & Akhilesh Chandra, JJ. The solitary appellant has been indicted of killing his wife Chitrarekha in the night intervening between 16th and 17th August, 1984, in the light of which allegation, the charges under sections 302 and 201 of the Indian Penal Code were framed by the learned Sessions Judge, Motihari in S.T. No. 191 of 1987. The indictment, ultimately, ended in recording a finding of guilt against the appellant as regards the charge under section 302 IPC and his acquittal for the offence under section 201 of the IPC. The learned trial Judge after hearing the appellant on sentence, directed him to suffer rigorous imprisonment for life. 2 The appellant challenges the vires of findings recorded against him. 2. The informant is the wife of the cousin of the appellant and she stated that she picked up the moaning sound of Chitrarekha coming from her bed room, as a result of which she, first, knocked at the doors of the room, but not getting in or getting any clue as to how she could get to the deceased, raised an alarm. People of the surrounding houses were attracted, who broke the latch of the door and went inside to find that Chitrarekha was lying underneath it the ground and was bearing injuries. She was shifted to Duncan Hospital, Raxaul where she was admitted for treatment. As may appear from the evidence of P.W. 6, Chitrarekha was referred from Duncan hospital to Patna but, on account of poverty she could not be brought to Patna and was taken to the house of one of her relatives and, lastly, she died there. 3. For the above incidence, the statement of the informant P.W. 6 was recorded which is Ext. 1 of the case and on that basis, the FIR was drawn up by P.W. 9. Investigation ensued and, ultimately, the appellant was put on trial. 4. During the course of trial, nine witnesses came to depose in the case but, P.Ws. 1 to 5, all turned hostile on account of not supporting the charges and making one line statement that they did not know anything as to how Chitrarekha happened to have injuries and ultimately, she died on that account. The hostility of the witnesses could be gathered from the fact that the husband of the informant Ram Narayan Singh (P.W. 5) was 3 also sailing in the same boat with his wife (P.W. 6) so as to dumping the charges. As regards the informant, she might not have been declared hostile by the prosecution but, she appears also cleverly helping out the appellant to get out of the charges by not sticking up to initial prosecution story that the appellant who had gone to bed with the deceased in the night of occurrence, was found missing from the room and from the house also. This statement was made in Ext. 1 by P.W. 6. 5. We cannot help the situation as appears from the evidence and what the witnesses, one or the other, appear telling us is that either the appellant was not present in the night of the occurrence or he was far away from the village of occurrence on account of being employed at some other distant place. P.W. 6 as also P.W. 9, the I.O. of the case, point out to us that Chitrarekha remained hospitalized for ten days. There is no material before us to point out that she was able to speak or could have made any statement. There is no evidence again to indicate as to what were the injuries which could have been recorded by the doctor attending upon her, least to talk of reasons or causes of which she died. As such, the contention was that there was a missing link between the allegation and the proof that the appellant could have caused the injuries and the finding that it was really injuries which resulted in her death. Contention was that if there could not be any injury, how could the appellant even if he is presumed to be present in his house, be held responsible. So as to further explaining the charges, our attention was, however, drawn to the evidence of P.W. 9 in paragraph 2 in which he 4 stated that during inspection of the place of occurrence, he found the tatti of the room, on its back side, broken into and there could be a possibility that some unknown hand had appeared inside the room in the dreadful night to victimize an innocent life, which ultimately, was lost after about fifteen days of the occurrence, as may appear from the evidence of P.W. 6. 5. The learned trial judge who passed the judgment was also criticized by the learned counsel for the appellant because he drew a presumption of appellant’s presence in his house on account of being the husband and also on the misreading of the law by treating the FIR as a substantive piece of evidence. 6. We uphold the contention and ultimately, we find that the conviction of the appellant was completely outside the record of the evidence which was available to us and it was never a case which could have traveled beyond section 232 of the Code of Criminal Procedure. In the result, the appeal is allowed and the appellant is acquitted by setting aside the judgment of conviction and order of sentence. The appellant is on bail, he shall be discharged from the liabilities of bail bonds. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High Court, The 1st July, 2010, NAFR/Anil/