CRIMINAL APPEAL No.82 OF 1989 Against the judgment of conviction and order of sentence dated 02.01.1989 passed by 4th Additional Sessions Judge, Aurangabad, in Sessions Trial No. 218 of 1981/6 of 1987. 1. Loknath Singh, son of Thakur Dayal Singh, 2. Baijnath Singh, son of Saheb Dayal Singh, Both residents of village – Rampur Kaithi, P.S. – Haspura, District – Aurangabad. -----Appellants. Versus The State of Bihar ----- Respondent. For the Appellants : Mr. Ashok Kumar Mishra, Adv. Mr. Varun Kumar, Adv. For the State : Mrs. Shashi Bala Verma, APP. ***** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ***** S.K. Sharma & Akhilesh Chandra, J.J. Loknath singh and Baijnath Singh have preferred this appeal against the judgment dated 2nd January 1989 passed by learned 4th Additional Sessions Judge, Aurangabad, whereby he held guilty both the appellants under sections 302/34, 364/34 and 201/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life under section 302/34, 10 years rigorous imprisonment under section 364/34 and 7 years rigorous imprisonment under section 201/34 of the Indian Penal Code. The sentences were ordered to run concurrently. - 2 - 2. After recovery of a dead body of a woman in Rehua Nala in opposite of Chulhai Bigha, the First Information Report was registered against the unknown on the basis of fardbeyan of Choukidar Muneshwar Dusadh, which resulted in a case under section 302/201 of the Indian Penal Code vide Barun P.S. Case no. 47(5)81 dated 24.05.1981, subsequently another information was given by Chandrika Singh (P.w.10) cousin of the alleged deceased which resulted in Goh P.S. Case no. 86(5)81 dated 25.05.1981. In the fardbeyan Chandrika Singh (P.W.10) stated that Sumitra Devi (alleged deceased in the present case) daughter of Sheo Gulam Singh (P.W.2) was his cousin. She was married with appellant Loknath Singh, she was aged about 20 years and was carrying pregnancy of four months. She was not of fair colour, so she was not liked by her husband. Appellant Baijnath singh is friend of Loknath Singh. Baijnath Singh had a common motive to eliminate Sumitra Devi so that one distantly related sister of Baijnath Singh could be married to Loknath Singh. Both accused/appellants were friend from their school days. That relative of - 3 - Baijnath Singh was of fair complexion and was beautiful lady. 3. On 22.05.1981, Loknath Singh and Baijnath Singh went to the village of Sheo Gulam Singh (P.W.2) (father of Sumitra Devi) and they were insisting to let Sumitra go with them on that very day. Both the accused stayed there on 23.05.1981. On the insistence of the accused persons Sumitra Devi became ready to go with them. One Bullock Cart of Rampati Yadav was arranged. The informant (P.W.10) proceeded along with Sumitra Devi and the accused persons on a Bullock Cart. The bullock cart was being driven by (P.W.1) Rampati Yadav. In the way, at about 3.30 P.M. when the Bullock Cart was at Deohura, the storm followed with rains came and all had to stay there for about 1 hour. The accused persons thereafter arranged Rickshaw and stated that now they would have to go by that Rickshaw as from that bullock cart they would not be able to reach their house. P.W.1 had returned with his Bullock Cart. They started their Rickshaw along with Sumitra Devi and the Rickshaw proceeded towards village Rampur Kaithi. P.W.10 followed them as long as - 4 - he could, but sometimes thereafter he lost the eye-contact. He had to stay for the night at village Pancharukhi. On the next morning, at about 7 A.M. P.W.10 reached the house of accused Loknath singh, but he noticed that neither the accused persons nor Sumitra Devi have reached there. The informant (P.W.10) got suspicious and reached to Kesh Narayan Singh (not examined) of village Mominpur. There P.W.10 was told that Kesh Narayan Singh is in Daudnagar. The informant thereafter rushed to Daudnagar and reached there at noon. Kesh Narayan Singh is Mamera brother of Sumitra Devi. P.W.10 narrated Kesh Narayan Singh about the occurrence and he proceeded along with Kesh Narayan Singh and went for tracing of whereabouts of the persons. In course of search, they went to different relatives of Loknath Singh at Karmahi gram, Belari and Raghu Bigha, P.S. – Daudnagar. Arbind Kumar (not examined), Janardhan Singh (not examined) both relative of Sumitra Devi also tried to search but they could not succeed in locating the accused persons. P.W.10 came to know through villagers of Rampur Kaithi that the accused - 5 - persons were conspiring to kill Sumitra Devi so that Loknath Singh could be married to Mauseri sister of Baijnath Singh. The fardbeyan of Chandrika Singh was recorded and Kesh Narayan Singh (not examined) was made a witness. 4. There were two fardbeyan with regard to one occurrence so both the cases were amalgamated into one case by order dated 20th September 1981. In course of investigation, one portion of a dead body of headless lady was recovered. Subsequently at some distance, the head of a lady was also recovered and it was alleged that the headless body and some portion of the head belonged to Sumitra Devi, so, it was suspected that the deceased was Sumitra Devi and on this assumption the investigation proceeded, charge sheet was submitted, cognizance was taken and case was committed to the court of session. The Charges were framed and explained to the accused persons who pleaded innocence. So the trial proceeded. 5. The defence of the accused persons was of innocence and also that Sumitra Devi is not dead, in fact, the portions of dead body which were sent for post mortem examination - 6 - were of different persons and these appellants have unnecessarily been dragged only on the basis of conjecture and surmises, presuming that they might have committed the murder. 6. In order to prove the case, the prosecution has examined altogether 18 witnesses namely, Rampati Yadav (P.W.1), Sheo Gulam Singh (P.W.2), Ram Pukar Singh (P.W.3), Ram Nandan Sharma (P.W.4), Baikunth Sharma (P.W.5), Rajendra Sharma (P.W.6), Ramdeo Paswan (P.W.7), Bhuneshwar Ram (P.W.8), Dasrath Singh (P.W.9), Chandrika Singh (P.W.10), Ramadhar Ram (P.W.11), Kailash Mishra (P.W.12), Ram Bonod Ojha (P.W.13), Jai Shree Sharma (P.W.14), Jai Mangal Paswan (P.W.15), Ram Swarath Singh (P.W.16), Dr. L.P. Jaiswal (P.W.17) and Ram Pukar Singh (P.W.18). 7. Two inquest reports of the two portions of the dead body were marked as Exhibits 3 and 3/1. Whereas post mortem examination report of the dead bodies were marked by the prosecution as Exhibit 7 and 7/1. First Information Report of Goh P.S. Case No. 86(5)81 and Barun P.S. Case No. 47(5)81 are marked as Ext. 2 and 2/1 respectively. Seizure - 7 - list of cloths and box which allegedly belonged to the deceased woman was marked as Ext. 5. The articles were identified and identification chart is Ext. 6. 8. Out of 18 witnesses examined by the prosecution, Ram Pukar Singh (P.W.3), Baikunth Sharma (P.W.5), Rajendra Sharma (P.W.6) and Jai Shree Sharma (P.W.14) were not named as witness in the charge sheet. 9. Rampati Yadav (P.W.1) is the Bullack Cart owner who allegedly has carried sumitra Devi up to Deohura from Sujan. Sheo Gulam Singh (P.W.2) is father of the deceased. P.Ws. 4, 5 and 6 were villagers of the deceased. P.W. 6 was tendered, P.W. 7 is Ramdeo Paswan who has carried Sumitra Devi in the Rickshaw from village Deohura while they proceeded there from village Rampur Kaithi. P.W.8 Bhuneshwar Ram is a choukidar and informant of the case which was registered against unknown. Dasrath Singh (P.W.9) is an advocate clerk who is a formal witness. Chandrika Singh (P.W.10) is informant of the case which was registered against the accused persons. P.Ws. 11, 12 and 13 are witnesses to the inquest reports of the parts - 8 - of the dead bodies. P.W.14 is villager of the deceased. P.W.15 is the B.D.O. Barun, who conducted the test identification parade of the articles of deceased headless dead body of women. P.W.16 is Advocate Clerk. P.W. 17 is the doctor who conducted the post mortem examination of the deceased and P.W. 18 is formal witness. The trial court after considering the entire evidence and other materials on record came to the conclusion that the prosecution has been able to prove the charges beyond the shadow of all reasonable doubts against both the accused persons. Hence they have been convicted and sentenced as stated above. 10. We have to see whether the prosecution was able to prove the case beyond the shadow of all reasonable doubt. 11. Barun P.S. Case No. 47(5)81 was registered on 24.05.1981 at 10.30 A.M. after recovery of dead body of a lady from a Nala, whereas Goh P.S. Case No. 86(5)81 was registered on 25.05.1981. The fardbeyan of the second case was subsequently merged in first case and are being discussed respectively. - 9 - 12. According to informant P.W.10, on 22.05.1981 both the accused persons had arrived at his village for the purpose of Rukhshaddi (taking of the wife of the appellant Loknath Singh). Loknath Singh was married with Sumitra Devi and Baijnath Singh was a friend of Loknath Singh since his school days. On that date Rukhshaddi could not take place. On 23.05.1981, at about noon Rukhshaddi took place and Sumitra Devi went through Bullock Cart of Rampati Yadav. P.W.10 also went with them while they were proceeding, then at about 3 P.M., there is village Deohura, rain and storm lashed and so it caused delay of one hour. The accused persons told that it was not possible that they would be able to reach their village Rampur Kaithi through Bullock Cart and so they arranged one Rickshaw. Sumitra Devi and accused persons proceeded through Rickshaw. P.W.10 followed them but in the way near Bakhtiyarpur village it became dark so P.W.10 lost the contact with the Rickshaw. The informant had to take rest in a shop at panchrukhi. In the next morning, he reached village Rampur Kaithi and when he went to the house of Loknath Singh, he - 10 - was told that none had arrived there. P.W.10 became suspicious and rushed to Kesh Narayan Singh of Mominpur village. Kesh Narayan Singh was not there and so P.W.10 went in search of him to village Daudnagar. Kesh Narayan Singh was stopped there. Both went in search of Sumitra Devi and accused persons together. Arbind Kumar and Janardhan Singh were also roped in for tracing of whereabouts. P.W.10 knew in village Rampur Kaithi that accused persons were trying to kill Sumitra Devi from before. This matter was informed to Goh Police Station earlier. In para 8 of the examination- in-chief, P.W.10 has stated that his sister Sumitra Devi was still “traceless”. He further stated that he was not knowing as to whether any portion of the body of Sumitra Devi was found there or not. Though, this witness has described the manner of going of Sumitra Devi with the appellants Loknath Singh and Baijnath Singh up to village Deohura, but, his evidence that Sumitra Devi was still traceless has given another version of the occurrence and he has expressed ignorance about seizure of any part of the body of Sumitra Devi. This witness is - 11 - prime witness of the case, the fardbeyan which has resulted into the conviction of the appellants is the outcome of the statements of this witness, but the fact which he has stated in para 8 makes the entire case regarding disappearance of his sister Sumitra Devi to be doubtful. In this background, the evidence of other witnesses are also being looked into. P.W.1 has supported that he has carried Sumitra Devi with the appellants up to village Deohura. According to him, his evidence under Section 161 of the Code of Criminal Procedure was recorded after 4 to 5 days of the occurrence. 13. P.W.2 is father of Sumitra Devi who has supported that his daughter went with the appellants on the date which has been stated by the other witnesses. According to him, his daughter was married 5 years earlier with Loknath Singh. She was residing regularly with Loknath Singh. His statement was also recorded by Barun police after five to six days of the occurrence. He has supported only with part of the occurrence, which according to him, was that Sumitra Devi went with the appellants on the date and time as stated by him. - 12 - 14. Other witnesses are not very much relevant except P.W.7 who has stated that he had carried one lady and two persons on 23.05.1981 and they were to go from village Deohura to village Pancharukhi. This witness has identified the Sari which the deceased was wearing and the box which was carrying at the relevant time. 15. P.W.15 is the B.D.O. who has conducted the test identification parade. He has stated that he has put the seized articles under test identification parade and the articles were identified by the witnesses including P.W.1 who identified blood stained sari and a box and P.W.2 who identified one blood stained cloths and the box. Similarly, P.W.5 has identified one blood stained cloths and box, but in very first paragraph of his cross-examination has stated that though seized articles were mixed for the identification but only sari which was having blood stained mark was identified. According to this witness, only one Sari which was having blood stains was put on test identification parade which was identified and other Saris were not having - 13 - similar marks. Therefore, such identification of the Sari is of no use. The Sari which was identified was having a specific mark of blood stains whereas the other articles were not having such marks. The box was not having specific marks. No detail of the colour or of such features of the Saree was mentioned in the test identification chart. It has come in the evidence that the identification of the articles was not done in the manner in which it was to be kept for the purpose of identification. The articles must be mixed with similar articles and all precaution should be taken, so that specific marks could not remain on the portion which was likely to be identified, but in the present case the specific mark of the blood stains was there and such identification of the Sari and Box creates a doubt, as to whether, the articles which were of Sumitra Devi were put or not. Therefore, the identification of the articles were meaningless. 16. In the prosecution, the age of the victim of the present case has been stated to be 20 years. The doctor (P.W.17) conducted post - 14 - mortem examination on the dead body of a lady which was of 25 years. No doubt, this variation is not very important variation and such variations are normal but creates slight doubt, whether the dead body which was put for examination was of Sumitra Devi or not. The post mortem examination was conducted on two different dates because recovery of headless portion of the body and head was on two different dates at two different places. The doctor was asked question as to whether he had written this fact in his post mortem examination report, as to whether the head and trunk belong to one and the same individual. On this basis, the identity of the deceased has been challenged by the learned counsel appearing on behalf of the appellants and was argued that, in fact, the part of the body put on Test Identification Parade was not of Sumitra Devi and the head was not of one person. 17. It has now been submitted that this post mortem examination reports if read with the deposition of P.W.10 who stated that Sumitra Devi was traceless creates a doubt to - 15 - the prosecution version that Sumitra Devi was killed. 18. Learned counsel appearing on behalf of State has submitted that prosecution has been able to prove at least that part of the occurrence which has stated that the appellants were seen in company of the deceased up to village Deohura and now the onus under section 106 of the Evidence Act has shifted upon them. They are to discharge the burden of proof. 19. We have heard the submissions of both the sides. We have analysed the evidence. The case under section 302 of the Indian Penal Code is based on the circumstantial evidence. It is a compact case and it cannot be segregated into different parts. The prosecution case is that Sumitra Devi was killed by the accused persons and thereafter her dead body was found but the author of this version has contradicted himself, when he has stated that Sumitra Devi was traceless and is not categorical whether Sumitra Devi was dead or not. Therefore, this version of the occurrence got severe jolt from the evidence of P.W.10. Recovery of the portion of the dead - 16 - body is from two distinct places. The defence has denied the recovery of corpus delicti and it has been submitted that the headless trunk of a female and the decomposed head found after six days of the occurrence cannot be said to be of Sumitra Devi because the portion of the head was without skin or hair. On the basis of skeleton alone, the identity of a person cannot be established. It has been submitted that under that circumstances some more scientific method should have been adopted, so that it can be proved and expressed without shadow of reasonable doubt that the head which was recovered belonged to Sumitra Devi and of none else. 20. In this case, there were two First Information Reports. The case was initially investigated by two Investigating Officers. The most important witnesses of the case who are P.Ws. 10 and 2 have stated that they were examined first time by the police after 4 to 5 days of the occurrence. If the prime witness was examined 4 to 5 days of the occurrence then the Investigating Officer were required to explain as to why and on what basis they - 17 - proceeded to place of the occurrence. None of the two Investigating Officers has been examined in the case. None examination of Investigating Officer is not always fatal and some times minor contradictions are not required to be taken in to seriously. But if the case is based on circumstantial evidence that the minor contradictions also becomes very important for arriving at some conclusion. The recovery of parts of the body were at different places and on different dates. The Investigating Officers would have to explain about the distance from where the different parts of the body were recovered. Whether the appellants had gone to the place from where there is recovery of the portion of the body. This evidence has not come in the version of any of the witnesses. Therefore, none examination of the Investigating Officer in this case has caused much prejudice. 21. Vital link has remained unfulfilled and in case when links of circumstantial evidence remains incomplete then it can be held that prosecution has not been able to prove its case beyond the shadow of all reasonable doubt. - 18 - Once the doubt is created then the benefit of the same is given to the accused persons. Accordingly, the appellants deserve to be acquitted. 22. In the result, the judgment and conviction and order of sentence is set aside. The appeal is allowed. The appellants are acquitted of the charges and they are discharged from liabilities of their respective bail bonds. Patna High Court Date : The 16th November 2010 Rajeev/ N.A.F.R. (Shyam Kishore Sharma, J.) (Akhilesh Chandra, J.)