IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.382 of 1989 ========================================================== Raj Kumar Mandal, son of Ram Charittar Mandal, R/o-Vill.-Purani Shemapur, P.S.-Barari, District-Katihar. .... .... Appellant. VERSUS The State of Bihar. .... .... Respondent. ========================================================== Appearance : For the Appellant : Mr. U.K. Chaudhary Mr. Baleshwar Kamat, Avocates For the State : Ms. Shashi Bala Verma, A.P.P. ========================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH AND HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) ******* The sole appellant has been convicted under Section-302 of the Indian Penal Code and sentenced to under go rigorous imprisonment for life. Having perused the judgment under appeal, we are indeed surprised that a conviction was at all ordered. We are of the view that in such a case virtually even charges could not have been framed, as there were no material in support thereof, what to talk the trial, the reasons thereof we will give hereinafter. A first information report was lodged pursuant to the fardbeyan of P.W.7, Chunchun Yadav. It, inter alia, alleged that he was informed at his house that two of his son-in-law, namely, Rajendra Yadav and Umesh Yadav, who used to stay with him, had been shot. Rajendra Patna High Court CR. APP (DB) No.382 of 1989 dt.20-09-2011 2 Yadav was dead and Umesh Yadav grievously injured. He rushed to the spot which was near railway crossing and found his elder son-in-law Rajendra Yadav dead having been shot and grievously bleeding and nearby his younger son-in-law Umesh Yadav grievously injured with a bullet wound lying. Large number of villagers had also assembled. In the fardbeyan, he clearly disclosed that he suspected the appellant, Raj Kumar Mandal, who have orchestrated this incident as some time back he was employed as a teacher for the informant’s third unmarried daughter, Punam Kumari. While teaching he eloped with her, though no case was instituted. The girl was recovered from Kishanganj and, accordingly, Raj Kumar Mandal used to threaten the family of the deceased. Upon the F.I.R. being instituted, inquest report was prepared and the dead body was sent for postmortem. The injured, Umesh Yadav was sent to hospital where injury report was prepared which showed that he had sustained grievous bullet injury which still lodged in his upper abdomen. At this stage, police realized that as the dead body and the injured, Umesh Yadav was found near the railway track on railway property it would be a railway case. Accordingly, the F.I.R. was transferred to the Railway Police Station where it was re-registered on the next day. It may also be noted here that on the same day when the F.I.R. was lodged the villagers allegedly arrested the appellant, Raj Kumar Mandal and brought him to Manihari Police Station. A wireless message (Ext.12) was sent by P.W.10, Tapeshwar Prasad Singh, Sub Inspector of Police. In the wireless message, it was recorded that the villagers disclosed that the appellant had confessed that he has committed the crime along with Patna High Court CR. APP (DB) No.382 of 1989 dt.20-09-2011 3 Umesh Yadav, the injured. It may also be mentioned that when Umesh Yadav was produced before the police in a grievously injured state and sent to Doctor for medical examination. He also gave a statement as to how he and his co-brother-in-law were shot by three unknown persons. He also suspected the hand of the appellant, Raj Kumar Mandal in it. This was then registered as an F.I.R. and forwarded to the Railway Police Station. Ultimately, the police submitted the chargesheet against the appellant and the Umesh Yadav, the injured son-in-law of the informant and co-brother-in-law of the deceased. Charges having been framed, the accused persons having pleaded not guilty, the trial took place. In course of trial 15 witnesses were examined. Out of whom P.W.1, Kapildeo Yadav, P.W.11, Chunchun Mandal and P.W.12, Krishnadeo Mahto have been declared hostile as they did not support the prosecution story at all. The prosecution story that was being developed was that this appellant because of the eloping incident had become inimical to the family but Umesh Yadav, the younger son-in-law of the informant, who had serious differences with the elder son-in-law, the deceased be-friended Raj Kumar Mandal, accordingly, two of them planned to murder Rajendra Yadav in course of that Umesh Yadav accidentally got injured. P.W.2 is Asha Devi who is the widow of the deceased. She has nothing to offer except create a suspicion against the appellant. P.Ws.3, 4 & 5 are villagers who have only raised suspicion. Here, we would like to consider P.W.5, Chandra Yadav because the trial Court has laid emphasis on his evidence. In his deposition, he has stated that while he was near the railway crossing he heard a gun shot. He hid himself and he saw the Patna High Court CR. APP (DB) No.382 of 1989 dt.20-09-2011 4 appellant, Raj Kumar Mandal running from the spot. In cross-examination, in the end he admits that he is the brother-in-law of the deceased, Rajendra Yadav, which fact he was concealing right through his cross-examination. It may be noted that even he does not name the other co-accused, Umesh Yadav. Therefore, his evidence at best is seeing the appellant running from the site of crime unarmed. Then, we have P.W.6, Vishundeo Yadav who has been tendered. P.W.7, Chunchun Yadav is the informant who is totally a hearsay witness. P.W.8, Dr. Govind Prasad Tambakubala, who is the Medical Officer, has prepared the injury report of the accused Umesh Yadav and he has also witnessed the statement given by him, which is treated as the third F.I.R. In his deposition, he has clearly stated that the injury of Umesh Yadav was grievous and the bullet was found having lodged in the upper part of the abdomen having ruptured his pancreas. Then, we have P.W.9, Nilam Kumar Singh, who is the Officer-in-Charge of Barari Police Station, who first investigated the case. P.W.10, Tapeshwar Prasad Singh, who had recorded the wireless entry with regard to arrest of the appellant which entry is Ext.12. P.W.13, Dr. Nilamber Singh who had conducted the postmortem examination of the dead body of Rajendra Yadav. In his deposition, he has clearly deposed that the bullet has passed through the body. P.W.14, Pramod Kumar is the Sub Inspector who at that time was with the railway police and had concluded the investigation. P.W.15, Surendra Kumar Brahmchari is another Officer-in-Charge. He is formal in nature. Defence has examined one witness, namely, Pramod Yadav, who is the son of the informant and, therefore, the brother-in-law of the Patna High Court CR. APP (DB) No.382 of 1989 dt.20-09-2011 5 deceased and the accused Umesh Yadav. He was brought to depose that there were no differences between the two son-in-law of the informant and they were living as ‘Ghar Jamai’ with the informant. Learned trial Court has convicted this appellant but acquitted Umesh Yadav. What surprises us is, if we look at the entire material we find nothing against the appellant or for that matter against the other accused persons even for the purposes of framing charge. We say so because all the witnesses have only raised suspicion and, that too, against this appellant but even that was missing against the other co-accused who was charged. The only material that was against the other co-accused, that is, Umesh Yadav for framing charge was the wireless entry (Ext.12). As noted above, we fail to understand as to how the wireless entry (Ext.12) would at all be taken into account as evidence or material for even framing charge. We may once again refer to this wireless message. It is sent by P.W.10, Tapeshwar Prasad Singh, Sub Inspector of Plice and recorded by him. It says that villagers of village Gandhitola had arrested and produced Raj Kumar Mandal, who is alleged to have confessed before them that he along with Umesh Yadav had committed the crime. No one from Gandhitola has ever been examined or questioned in course of investigation. We fail to understand that how this could form basis for framing charge. The only other material for framing charge was the statement of P.W.5 that he had heard a gun shot being fired and found the appellant running away from the scene of occurrence. Nothing more is said by him. Mere running away from scene of occurrence or crime, in our view, cannot lead to framing charge against the person. The persons can run from scene of occurrence for various reasons, Patna High Court CR. APP (DB) No.382 of 1989 dt.20-09-2011 6 may be out of fear or may be to inform others but surely without any other material no charge can be framed based on this allegation. No weapon was alleged to be with him nor any weapon recovered at all. What is more surprising is that P.W.5 does not disclose this to the villagers or the informant at any time but turns up at trial stage. He alleges to have disclosed this to two witnesses who turn hostile in Court. We may also notice that the trial Court committed serious mistake in placing reliance on Ext.11 which is a purported statement of Umesh Yadav, a co-accused recorded by the police. Apart from the fact that the statement has not been proved in accordance with the provisions of the Evidence Act, all the statement states is that Umesh yadav and the deceased Rajendra Yadav were shot at by three unknown persons. Umesh Yadav suspected that they have been set up by the appellant. At best, it is a case of suspicion. These aspects would only show that there was a suspicion. We would like to reiterate that what has been said often enough however strong suspicion may be, it does not take place the proof of facts and it is only upon proof of facts that a conviction can be ordered. In the present case, there was only suspicion and suspicion all around that itself did not justify framing of charge because there was no material for framing charge. However, once charges were framed in course of trial, all we have is again suspicion. We again reiterate, however, strong suspicion may be in absence of proof, there cannot be a conviction. There was no proof that anyone saw the occurrence. There was no proof that the weapon used was recovered from the appellant. There was no proof that the appellant was seen committing the crime and was seen at the place of crime. Patna High Court CR. APP (DB) No.382 of 1989 dt.20-09-2011 7 The nearest one goes is that he was seen by P.W.5 running away from the scene of crime, not committing the crime himself. This is if P.W.5 is taken to be credible witness which he definitely is not. Here, we may notice even in so far as P.W.5 is concerned, he is most unreliable, though he states that he had seen the appellant running away from the scene of crime, he runs to the house of one Chunchun Mandal. He then informs the Krishnadeo Mahto, the Mukhiya but then he did not return to the site of the crime nor was he questioned by the police even. He comes straight to the Court for deposition. In his deposition, he accepts in the end that he is the brother-in-law of the deceased. When Chunchun Mandal and Krishnadeo Mahto are examined as P.Ws.11&12 they both turned hostile. What was then the evidence left? There is no proof of circumstances much less in an unbroken chain leading to the only inference of crime being committed by the appellant. For charges being framed, we once again state that there must be legal evidence available on record. The suspicion must have some material backing. In absence of some material backing, mere suspicion, cannot lead to conviction. The power of Sessions Court to frame an appropriate charge is not trammeled by the specifications contained in committal order. The mere presence of the accused near the scene of occurrence at the relevant time is only a suspicious circumstance but cannot be said to form a sufficient ground for proceeding against the accused. Where the only material upon which the charge is framed against the accused is his confession before police. It is manifest that such confession does not constitute legal evidence and no reliance can be placed thereon. We are mindful of the fact that law is well settled by now in this regard that a Court Patna High Court CR. APP (DB) No.382 of 1989 dt.20-09-2011 8 would be justified in framing charge against an accused even on a strong suspicion founded upon materials before it, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused in respect of the commission of the that offence. Unfortunately, in the present case we do not find any such material. There is wild suspicion and not grave and strong suspicion which would have justified the trial Court in proceeding ahead with the trial. Thus, we hold that the prosecution has miserably failed to establish the charge. We may note that the trial Court on this evidence itself had already acquitted Umesh Yadav and there is no appeal on behalf of the State against the same. The result is that the appellant is held not guilty as charged and is acquitted and is discharged of their liability of bail bonds. This appeal is allowed. The Patna High Court 20th September, 2011 Trivedi/NAFR (Navaniti Prasad Singh, J.) (Ashwani Kumar Singh, J.)