CRIMINAL APPEAL No.327 OF 1988 ******* Against the judgment dated 18th June, 1988 passed by Shri Sheo Narayan Gupta, 7th Additional Sessions Judge, Gaya, passed in Sessions Trial no. 543 of 1986 / 183 of 1987. ******* 1. Md. Hussain Ansari, 2. Md. Idris --------------Appellants Versus The State of Bihar---------------Respondent ******* For the Appellant : Shri Ambika Bhagat For the State : Sushri Shashi Bala Verma ******* 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 present appeal has been preferred by two appellants who were charged together under Sections 364/149, 302/149 and 201/149 of the Indian Penal Code in Sessions Trial no.543 of 1986 / 183 of 1987. By the judgment of conviction dated 18th June, 1988 which was passed by the learned 7th Additional Sessions Judge, Gaya, the two appellants were held guilty of committing the above noted offences with six – seven unknown 2 others and for their respective convictions under Sections 302/149 and 364/149 each of them were ordered to suffer rigorous imprisonment for life while each of them had to suffer another period of rigorous imprisonment under Sections 201 /149 of the Indian Penal Code. 2. During the pendency of the present appeal, appellant Md. Hussain Ansari died and his appeal abated. We have heard the present appeal only as against Md. Idris, appellant no.2. 3. The case relates to alleged abduction and killing of Zahiruddin, aged about 18 years, who was the son of the informant, Md. Rafique, P.W.3, and both of whom were allegedly sleeping in the Sahan of their house at village Motipur which was located at the Police Station Kurtha. It is alleged by the informant, P.W.3, that the two appellants along with the six unknown others, armed with rifle and Fasuli, came near the informant and tied him to the cot, on which he was sleeping, with the help of rope and commanded him to keep silent. It was 3 moon lit night and he identified the two appellants out of the band of eight persons. Thereafter, they captured Zahiruddin and took him away. The informant did not raise any hulla till the accused persons had gone away and when he raised hulla his neighbors as also the lady inmates of the house came there and untied his hands and feet. The informant, thereafter, went on a search of his son and found his head-less body lying by the side of the river. He thereafter, came to the Police Station along with Chaukidar, Baliram Yadav, P.W.1, and lodged the first information report, Exhibit-1. 4. The motive for the commission of the offence was the land dispute between the appellants and the informant since long and the informant alleged having been threatened on that account also and was asked by the accused to abandon his house at village Dharari, else he would be killed. 5. The Sub-Inspector of Police, Md. Azher, P.W.6, who recorded the first information report, came to 4 the place of occurrence and investigated the case as may appear from his evidence. P.W.6, Sub-Inspector of Police Md. Azher, had stated that he went to the place where the headless dead body was lying and it was a place which was the bank of river Pun Pun and he found a naked dead body, the genitalia of which had also been chopped off. There was copious blood lying there with a pair of hawai chappals. About fifty yards away from that particular place, he found some empty cartridges and blood copiously available. He seized all things including the blood stained earth by preparing seizure memo., Exhibit- 3, and thereafter he prepared inquest report after holding the inquest. Inquest report has been marked as Exhibit-2. He sent the dead body for post mortem examination to Sadar Hospital, Jehanabad. P.W.6, thereafter, came to the house of the informant and recorded the statements of the witnesses. 6. P.W.6 further stated that on 05th May, 1985 P.W.1 brought the head of the deceased to the Police Station in his absence. The Officer-in-charge on 5 that particular day that is 05th May, 1985 was Sub- Inspector of Police, Shatrughan Prasad Singh, and he prepared inquest in respect of the head which has been marked as Exhibit-2/1. On close of investigation the accused persons were sent up for trial. 7. In addition to P.W.6, the prosecution examined five more witnesses. P.W.1, Baliram Yadav, was the Chaukidar, who was, as per the informant, P.W.3, had accompanied him after finding of the dead body to the Police Station for informing the Police. P.W.2, Md. Tahir, is the son of the informant and brother of the deceased and he has given evidence that on hearing hulla of his father, he came out of his house, untied him and went with his father and others in search of the dead body which was, ultimately, found by the side of river Pun Pun. P.W.3 had supported him. P.W.4 and P.W.5, Sitaram Sao and Virendra Singh, are formal witnesses who had identified a few signatures on seizure memos. and inquest reports. 6 8. Shri Ambika Bhagat, learned counsel appearing on behalf of the appellant, has taken us through the evidence and submitted that the evidence of the informant when considered in the light of the other circumstances appearing from his own evidence or that of others, makes it unsafe to sustain the conviction of the appellant. It was contended that the enmity between the parties was admitted and that is after execution of Exhibit-A, the deed of relinquishment, which was executed by P.W.2 in favour of the accused in respect of a particular land, some five – six months prior to the occurrence and the sense of defeat which could be hovering in the mind of the informant, could be one reason for falsely implicating the accused persons. It was contended that the defence suggested during cross- examination of P.W.3 that the deceased had some illicit relationship with the daughter of a particular person in the village and probability could be that he was not only murdered but in order to send the message that the boy had been punished for his lewd behaviour his genitalia was chopped off which finding appears recorded in 7 Exhibit-2 and is also admitted by the informant himself, which is corroborated by the evidence of P.W.6. 9. Sushri Shashi Bala Verma, has also been very lukewarm in supporting the charges and the judgment and has lastly submitted that the possibilities can be many, including the one that the young man of eighteen years fell prey to his own infatuations and lewd behaviour. 10. The solitary eye witness of the case is P.W.3. The evidence of the informant indicates that he had two establishments, one at village Tarka and the other at a distant place. P.W.3 had stated that he had received some lands from his wife’s parents and have settled down at village Garari by creating an establishment. The accused persons, as per his evidence, was related to him as being brothers to his wife. The informant had alleged that he was fighting litigations for certain landed properties and that there was serious enmity on that account between the parties. This fact also gets admitted 8 by the defence when it brought on record Exhibit-A. So the evidence of the witness P.W.3 has to be considered in the above background and we have to be very cautious in accepting his evidence. 11. While reading the evidence of P.W.3, the informant, we came across the fact that he claimed himself tied by the accused persons to a cot. He stated that he raised a hulla which attracted his neighbours and his lady family members and that he was untied by his wife. But, in cross examination he stated that it was his neighbours who were the witnesses who had untied him. As against that P.W.2, his son has stated that he and his father were the only persons who were residing on that particular day in that particular house and no lady members were residing on that particular day and on the hulla of his father he came out of his home and untied the ropes. Thus we find P.W.2 not only contradicting P.W.3, the informant, as to how and by whom he was untied, but P.W.2 appears not supporting P.W.3 on his case that he and his son (P.W.2) were sleeping in the 9 Sehan of his house. P.W.2 has stated in paragraph 1 that on hearing hulla he opened the doors of the house to come out to find his father tied to the cot and he untied him. We were legitimately expecting that the rope would have been found by P.W.6, Md. Azher, the Investigating Officer of the case and those had been seized by him. We were also expecting P.W.6 to have found a cot on which at least P.W.3 had slept, but to our utter dismay we find that neither the cot was found by the Investigating Officer nor he could find any rope there. P.W.3, the informant, as per P.W.6, also did not produce any rope by which he had been tied to the cot. Thus, what we find from the evidence of P.Ws 2 and 3 is that, firstly, there might be a probability that P.W.3 would not be there in the night of the occurrence and his claim of sleeping on a cot, to which he was tied with rope by the accused persons, may also not be true. 12. The other aspect of the case, which has created serious doubt about the veracity of the prosecution case is that the informant claimed setting out 10 on a search of the dead body along with his neighbours. No one came to tell the court except his own son (P.W.2) that he had gone with P.w.3 in search of the dead body. Besides telling the Court that he or she had been attracted to the scene of occurrence on the hulla raised by P.W.3, even P.W.1, the chaukidar of the village of the informant, does not say the above fact. However, P.W.1 says that he went with the informant in search of the dead body on 4th May, 1985, that is, the next day, and found the dead body by the river side. It could be the legitimate expectation of any reasonable person that P.W.3 ought to have stated to P.W.1 as to who had taken his son away. But P.W.1 does not say that P.W.3 had whispered anything to him. These are some of the circumstances which create serious doubt about the veracity of the prosecution case. On account of the above reasons we find ourselves inclined to uphold the probability of the defence suggestion to P.W.3 when he was being cross examined in paragraph 10 of his evidence that the deceased might have an illicit relationship with the daughter of a particular person and that could be the reason that he was murdered and this 11 could probably be the reason as to why his genitalia was chopped off as per admission of the witnesses and recorded by the doctor in that behalf. 13. In the light of the above discussions, we find merit in the appeal and as such we allow it. The conviction of Md. Idris and sentences passed upon him are hereby set aside. Md. Idris is on bail, he shall stand discharged from the liability of his bond. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High court, The 29th June, 2010. AAhmad/ (NAFR).