CRIMINAL APPEAL No.428 OF 1988 with CRIMINAL APPEAL No. 452 OF 1988 ***** Against the judgment of conviction and order of sentence dated 8th July 1988 passed by Shri Shyam Sunder Das, Sessions Judge, Siwan in Sessions Trial No. 177 of 1984. 1. BHARAT MANJHI, SON OF SURAJ MANJHI, RESIDENT OF VILLAGE- DANGASI, P.S.-BARAULI (SIDHWALIA) DISTRICT-GOPALGANJ. …..Appellant (in Cr. App. No. 428 of 1988). 2. PARSURAM GIRI @ PASHURAM GIRI, SON OF LATE SRI DARASHAN GIRI, RESIDENT OF VILLAGE-LARAUDI JALALPUR, P.S.-SIDHAWALIYA, DISTRICT-GOPALGANJ. …..Appellant (in Cr. App. No. 452 of 1988). Versus THE STATE OF BIHAR …..Respondent (in both the appeals). For the Appellants : Mr. Rajendra Narain (Adv.) Mrs. Anju Narain (Adv.) Mr. Sanjay Srivastava (Adv.) Mr. Umesh Kumar Ray (Adv.) (in Cr. App. No. 452 of 1988). : Mr. Aminuddin Ahmad Khan (Adv.) : Mr. Raj Dular Sah (Adv.) : Mr. Vijay Kumar Pandey (Adv.) (in Cr. App. No. 428 of 1988). For the Respondent : Ms. Shashi Bala Verma (Additional P.P.) (in both the appeals). P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH S.K. Sharma & D.K. Singh, JJ. The two appellants, through these two appeals, have challenged the judgment and order of conviction dated 8th July, 1988 passed by learned Sessions Judge, Siwan in Sessions Trial No. 177 of 1984, whereby and whereunder both the appellants were acquitted under Section 2 302/34 of the Indian Penal Code but have been convicted under Section 364/34 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. The prosecution case starts with the fardbeyan of the informant Bacha Singh, P.W.3, recorded by Kapildeo Singh-P.W.9, S.I. of Jamo Bazar police station on 12.02.1983 at 2 P.M. in Village Mushari to the effect that on 11.02.1983 at 4 P.M., his co-villager Bharat Manjhi (appellant) and Sheonath Ram P.W.7 came to his house and requested his cousin brother Chandeshwar Singh @ Bharti to accompany them to Sareya Mela or Bishunpura market. The cousin brother of the informant sat on the front portion of the bicycle of Bharat Manjhi and thereafter all the three left the house. Bharat Manjhi informed the informant, at about 7-8 P.M. in the night, that the informant’s cousin brother Chandeshwar Singh was taken forcibly by Pramod Giri, Parsuram Giri and Bhakura Dusadh from the toddy shop of village Jalalpur, police station Sidhwalia. On receiving such information, the informant went to the village Sarpanch Sheojee Prasad, P.W.2, and explained him about the occurrence. Thereafter, the 3 informant along with P.W.2 went to Sukhdeo Singh, Mukhia of Larauli Panchayat to whom the entire information was transmitted. Thereafter, the informant tried to locate his cousin brother (victim) in the nearby place but he did not find the victim. On 12.02.1983 at 8 O’clock in the morning, the informant heard rumour that a headless dead body is lying near the Musahari canal. On hearing such rumour the informant along with his neighbours Rajendra Singh, Chandrama Singh, Baliram Singh, Imamul Haque (all not examined) and several other persons went to Musahari Canal, where, on seeing the dead body, the informant identified the body, to be of his cousin brother Chandeshwar Singh @ Bharti, on the basis of the birth marks (Lahsan) on several places on the dead body and also by the sweater of the deceased. 3. It is further stated by the informant in the fardbeyan that in the presence of Nagina Prasad-Mukhiya of Musahari, Sukhdeo Singh- Mukhiya of Larauli (both not examined), Sheojee Prasad (P.W.2)-Sarpanch of Dankeree, Sheo Nath Ram (P.W.7) disclosed that when he along with victim reached near the house of one Junglee Mian (not examined) of Village Jalalpur, Pramod 4 Giri, Parsuram Giri, Bhakura Dusadh and 4 to 5 unknown accused persons forcibly took away the victim. It was also conveyed by P.W.7 that accused Bhakura Dusadh was saying that he was being arrested by the police, at the behest of the victim, hence now, none could save the victim. On the basis of the aforesaid allegation, Jamo P.S. Case No. 9 of 1983 was registered under Section 302/34 of the Indian Penal Code with signature of Dr. Raghunath Pd. Singh and Hari Kishore Singh as attesting witnesses (both not examined) against Bharat Manjhi, Sheo Nath Ram, Pramod Giri, Parsuram Giri and Bhakura Dusadh. 4. The Police, after investigation, submitted charge sheet against Pramod Giri, Parsuram Giri, Bharat Manjhi and Bhakura Dusadh, who was shown absconder whereas Shiv Nath Ram was not sent up for trial. On cognizance being taken, the case of the appellants being separated from others was committed to the court of Sessions. The charges were framed against both the appellants under Sections 364/34 and 302/34 of the Indian Penal Code. 5. The prosecution in order to 5 substantiate the charges examined altogether nine witnesses of which P.W.1 Rajendra Singh is the own brother of the victim. P.W.2 Sheo Jee Prasad was the Sarpanch, to whom the informant informed after receiving information from Bharat Manjhi, but he has been tendered. P.W.3 Bacha Singh being the cousin brother of the victim is the informant of the case. P.W.4 Ram Chandra Singh is Constable who claims himself to have taken the dead body from police station to hospital for conduction of post-mortem examination but in his evidence he has stated that the command was issued in favour of Ganga. P.W.5, Dr. Himanshu Bhushan Sahay, conducted the post-mortem examination on a headless dead body. P.W.6 is Raj Kishore Lal, learned Judicial Magistrate who recorded the statement of P.W.7, under Section 164 of the Code of Criminal Procedure. P.W.7 is Sheo Nath Ram who was accused but the police did not charge sheet him and subsequently, he was made charge sheet witness and has come to depose as P.W.7 during trial. P.W.8-Madan Lal Tiwary is a hearsay witness who came to know about the occurrence from P.W.7 though he has given contradictory versions to that of P.W.7. P.W.9-Kapil Deo 6 Singh is the police officer who recorded the fardbeyan, registered the First Information Report and investigated the case till 15.03.1983. 6. The learned Trial Court relying on the evidence of P.Ws. 1, 3 and 7 acquitted both the appellants for the charges under Section 302/34 of the Indian Penal Code, whereas held both the appellants guilty under Section 364/34 of the Indian Penal Code and accordingly the judgment of conviction was passed. 7. This Court has to examine as to whether P.Ws. 1, 3 and 7 have proved beyond reasonable doubt the circumstance of the victim being last seen in the company of the appellants or whether the evidence of P.W.7 is credit worthy enough to warrant conviction of the accused persons. The evidence of P.Ws. 1, 3 and 7 needs reappraisal for reaching at conclusion as to whether the judgment of conviction needs interference. 8. P.Ws. 1 and 3 are the witnesses to the first circumstance when it is alleged that Bharat Manjhi (appellant) and Sheo Nath Ram (P.W.7) requested the deceased Chandeshwar Singh to accompany them. 7 9. When Chandeshwar Singh (deceased) left the house in their company, P.W.3 came to know through Bharat Manjhi and P.W.7, about the victim being taken away by Pramod Giri, Parsuram Giri and Bhakura Dusadh, hence P.W.3 is a hearsay witness to the second circumstance. 10. Considering the evidences of P.Ws. 1 and 3 with regard to taking away of the victim by Bharat Manjhi (appellant) and P.W.7, it does not constitute the charge of abduction. As for constituting the offence of abduction, it is necessary that the victim is taken away by forceful means or by deceitful means. The evidence of P.Ws. 1 and 3 does not reflect that any force was applied. So far as the allegation of inducing the victim by deceitful means, is concerned, it gets evaporated in view of P.Ws. 1 and 3’s evidences that it was Bharat Manjhi and P.W.7 who informed about victim being taken by the three accused persons subsequently. Hence, the first circumstance in no way comes within the ambit of abduction. 11. So far as the second circumstance is concerned, as per the fardbeyan, it was Bharat Manjhi who informed about the victim being 8 taken away by the three accused persons and the evidence of P.W.7 only suggests that P.W.7 reached in front of the house of Junglee Miyan when three persons Pramod Giri, Parsuram Giri and Bhakura Dusadh forcibly took the victim to the toddy shop of Sheopujan Pasi, where Bharat Manjhi was sitting. 12. The prosecution in order to prove other circumstances has relied on the evidence of P.W.7. Though P.W.7, Sheo Nath Ram, was accused in the First Information Report but subsequently, he was exonerated by the police and was made charge sheet witness, whereas it was the specific case of P.Ws. 1 and 3 that initially the victim went in the company of Bharat Manjhi and P.W.7. Hence, the evidence of P.W.7 has to be cautiously scrutinized. 13. The specific case of P.Ws. 1 and 3 is that the victim left the house in the company of Bharat Manjhi and P.W.7 and so far as the other circumstance with regard to assault and taking away of the victim is concerned, to that extent the only evidence available on record is of P.W.7, who completely deserts the first circumstance canvassed by P.W. 1 and 3, that P.W.7 ever left the house of the victim in the 9 company of the victim along with Bharat Manjhi, rather the specific case of P.W.7 is that the victim was on his bicycle and when he reached in front of the house of Junglee Miyan then three accused persons Pramod Giri, Parsuram Giri and Bhakura Dusadh forcibly took away the victim. Whereas, the case of P.W.1 and 3 is that the victim left his house on bicycle of Bharat Manjhi along with P.W.7. Hence, this inconsistency between the evidences of P.W. 1, 3 and P.W.7 breaks the chain of the circumstances. 14. The Apex Court in the case of Padala Veera Reddy Vrs. State of Andhra Pradesh and Others reported in 1989 Supplementary (2) SCC 706, paragraph-10 has observed that when a case is resting on circumstantial evidence then the following tests must be satisfied:- (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken 10 cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. The said principle has been reiterated in the case of Satni Bai Vs. State of Madhya Pradesh reported in (2010) 2 SCC 646. 15. When we put to test the present case, on the aforesaid parameters, we find that the first circumstance put forward by P.Ws. 1 and 3 regarding the victim being taken by Bharat Manjhi and P.W. 7, the same does not get corroborated with the evidence of P.W. 7, who, completely deserts the first circumstance put forward by P.Ws. 1 and 3 and thereby the chain of circumstances have not been established. 11 16. It is well settled law that in a case of circumstantial evidence the circumstances from which conclusion of guilt is drawn should be fully proved and such circumstance must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of circumstances. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. 17. From evidence of P.W. 3, it appears that he saw the victim going in the company of Bharat Manjhi and P.W. 7 on 11.02.1983 at 4 P.M., but at about 7-8 P.M., he came to know from Bharat Manjhi that the victim was forcefully being taken away by Pramod Giri, Parsuram Giri, Bhakura Dusadh. Thereafter, he went to the house of Sarpanch Sheojee Prasad (P.W.2) and explained to him about the occurrence but (P.W.2) has been tendered. In the fardbeyan, P.W.3 specifically says that he along with P.W.2, went to the house of Sukhdeo Singh Mukhiya and explained about the occurrence to him also, but Sukhdeo Singh Mukhiya has also not come forward to support 12 the case. 18. Admittedly, at 4 P.M. in the month of February the visibility is good enough, but no independent witness has come forward to suggest, the victim being seen, going in the company of the accused persons. Hence, the evidence of P.W.7 is not only inconsistent to that of the evidences of P.Ws.1 and 3, rather it impeaches the credibility of each other. 19. P.W.7, in para-6, has denied that he requested Chandeshwar Singh to go on the bicycle, rather evidence of P.W.7 suggests that the victim was going on P.W.7’s bicycle when abduction took place, whereas contrary to this, the evidences of P.W.1 and 3 suggest that the victim went on bicycle of Bharat Manjhi, P.W.7 in para-1 has stated that the victim was being forcefully taken away by the accused persons in front of the house of Junglee Miyan whereas P.W.9 in para-4 of his evidence has located the place of occurrence ahead of the house of Shahabuddin Miyan and found the house of Junglee Miyan about 15-20 yards west from the P.O. P.W.7 in para-13 has stated that there were several shops around the place of occurrence and none came when the alarm was 13 raised. P.W.7 in para-9 has stated that the accused persons did not say anything to P.W.7 rather P.W.7 specifically stated in para-20 that no severe assault was made upon the victim in his presence though he has further stated that the victim was slapped 2 to 4 times. P.W.7 in para-22 has stated that he went to the house of the victim but could not meet anyone, though, in para-6 he has stated that Bharat Manjhi informed the victim’s family. The specific case of P.W.7 is that the victim, Bharat Manjhi, and others took toddy in the shop of P.W.1, but the doctor while conducting the post-mortem has not found any smell of liquor in the dead body. Hence, the circumstances suggested by P.W.7 is full of unreasonableness and improbabilities. 20. The conduct of P.W.7 was not above board, from beginning which resulted into putting him in the category of the accused by the informant when the First Information Report was lodged, but surprisingly, the police made P.W.7 as one of the charge-sheet witness and during trial the entire prosecution case particularly the main charge of kidnapping rests on the evidence of P.W.7. 14 21. Hence, it appears that the prosecution has failed to prove the circumstances conclusively leading to the guilt of the accused persons, which further gets elaborated with the evidence of P.W.9, the Investigating Officer. P.W.9 in para-19 of his evidence has stated that same set of evidence were available against P.W.7, as that against other accused persons, then in such circumstance there was no occasion for making P.W.7 a charge sheet witness. 22. It appears from Paragraph-6 of the evidence of P.W.9 that one Mr. G.M. Pandey (not examined) submitted the charge sheet, as P.W.9 handed over the charge to him on 15.03.1983, meaning thereby that P.W.9 was the Investigating Officer of the case only for little over a month. As per the prosecution case there are four places of occurrence. First, the house of P.W.1 from where the victim was first taken by Bharat Manjhi and P.W.7, second in front of the house of Junglee Miyan from where P.W.7 claims that the victim was forcibly taken away, third the toddy shop of D.W.1 and fourth Mushahri canal from where the dead body was recovered. But the specific 15 evidence of P.W.9 is that he investigated only two places of occurrence i.e., the canal from where the headless dead body was recovered and the place near the house of Shahabuddin from where the victim was abducted. The specific evidence of P.W.7 is that the accused persons took the victim towards Larauli area, towards south from the toddy shop of D.W.1 but in that direction, no investigation has been conducted by the Investigating Officer. P.W.9 in para-19 has stated that during investigation it was not found as to, where the victim was actually assaulted and killed, which proves that the Investigating Officer has probed only one place of occurrence i.e., the place from where the dead body was recovered but from the evidence of the Investigating Officer it is not apparent that he has fixed the actual place of occurrence, from where the victim was abducted or where the assault was made, as claimed by P.W.7. 23. So far as the assault is concerned, the question of P.Ws.1 and 3 seeing the assault does not arise because they are witnesses only to the first circumstance. Though, P.W.1 in para-7 has specifically stated that he has not 16 seen the assault. With regard to the assault, the only witness is P.W.7 whose evidence is absolutely inconsistent. As P.W.7 in para-20 has stated that no assault was made to the victim except few slaps, whereas in para-25 P.W.7 has stated that the victim was neither dragged nor any assault was made. Though, P.W.9 in para-16 has stated that P.W.7 conveyed to him that the victim was assaulted by accused Parsuram Giri by ‘lodha’ but has not conveyed about the victim being slapped. Hence, on this score also the credibility of P.W.7 is thoroughly impeached. 24. Though, the appellants have been acquitted under Section 302/34 of the Indian Penal Code but so far identification of the dead body is concerned it has been stated by P.W.3 in para-2 that he identified by mole, birth marks (Lahsan) and the clothes of the victim. Whereas P.W.7 in para-8 has claimed to have identified the dead body through clothes of the victim. The evidence of doctor P.W.5 does not reflect that he found any birth mark or mole on the dead body as claimed by P.W.3. So far as the clothes are concerned, it is admitted by the Investigating Officer in para- 17 20 of his evidence that he did not seize the clothes of the victim. So far as identification of the headless dead body by P.W.4 in para-2 of his evidence is concerned, he claims to have identified the dead body on the suggestion of the villagers. 25. Identification of the dead body by P.W.4 becomes doubtful by his own evidence when he admits that the command for taking the dead body was issued in his favour whereas Column No. 3 of the post-mortem examination report suggests that the dead body was brought by Ganga Prasad Singh, Constable No. 501 and the doctor in his evidence does not name P.W.4. Hence, the claim of P.W.4 gets falsified by the evidence of the doctor. Hence, on these scores the identification of the dead body also becomes doubtful, particularly, in view of the evidence of the Doctor to the effect that he cannot say whether chopping-off of the head of the victim was post-mortem or ante-mortem. Moreover, the doctor has not specified whether he conducted the post-mortem examination on the dead body of Hindu or a Muslim. 26. Hence, it appears that in case of circumstantial evidence, the material witnesses 18 have been withheld who could have unfolded the truth and the prosecution has tried to prove the case on the basis of evidence of P.W.7, on whom reliance cannot be placed. The informant P.W.3 has stated that after hearing the occurrence from Bharat Manjhi he conveyed to Sheojee Prasad, P.W.2, who has been tendered and thereafter, he conveyed to Sukhdeo Singh Mukhiya who has not been examined. Further, P.W.1 in para-3 of his evidence has suggested that he went to Mushahri Bazar where he met Sukhdeo Singh Mukhiya, Janardan Prasad and Sheojee Prasad but out of them only P.W. 2, Sheojee Prasad, has been examined, who has been tendered. Similarly P.W. 3 in para 2 and 3 has stated that the victim was abducted in front of Junglee Miyan’s house whereas P.W.9 in para-21 has stated that Junglee Miyan was an eye witness and his statement was recorded but he has also been withheld for the reason best known to the prosecution. Ganga Prasad in whose favour the dead body challan was issued for taking the dead body for post-mortem has not been examined. P.W.7 in para-3 has stated that he sent Harendra Ojha to inform the deceased’s family about the occurrence but he has been 19 withheld. P.W.7, in paragraph 17 has claimed that the house of Kamruddin Miyan, known to P.W.7, was adjacent to the place of occurrence but he has also not been examined. P.W.7 in para-13 has claimed that there were 5-6 shops around the place of occurrence but none of the shopkeepers have been examined. P.W.9, the Investigating Officer has stated that he handed over the investigation to one G.M. Pandey, who submitted charge sheet, but the said Investigating Officer who conducted the substantive portion of the investigation has also been withheld. It has come in the evidence of the Investigating Officer that the statement of wife and children of the deceased were also not recorded. The specific case of P.W.7 is that the victim was abducted in front of the house of Junglee Miyan and thereafter he was taken to the toddy shop of Sheopujan Mahto where Bharat Manjhi was present, but the prosecution has not examined Sheopujan Mahto, rather he came to be examined by defence as D.W.1, where he completely ruled out the presence of Bharat Manjhi at toddy shop and has not said anything about the alleged occurrence. Hence, the non-examination of the material 20 witnesses has created a hole in the prosecution case and the benefit of doubt flowing from the same has to be conferred to the accused persons. 27. P.W.9, the Investigating Officer has neither found blood where the dead body was found nor any trampling marks near the area or on the way, which suggests that the victim was killed at some other place than the place claimed by the prosecution. 28. Though a suggestion was given to P.W.3 in para-3 that the victim was accused in a case under Section 395 of the Indian Penal Code, to suggest that the victim was killed while committing some offence, but no document has been brought on record to prove the same. Hence, we do not find any merit in the aforesaid suggestion of the defence. 29. So far as the motive is concerned, in the fardbeyan it is alleged that the accused Bhakura Dusadh who was arrested at the behest of the deceased in some other case, resulted in abduction of the victim at the behest of Bhakura Dusadh, hence suggestion to that effect has been made to P.W.1 in para-6, but the Investigating Officer, P.W.9 in para-11 has 21 specifically stated that he never probed the motive part nor any evidence has been led by prosecution to prove the motive alleged. Hence the alleged motive has not been proved. 30. From the discussions made above and in view of the inconsistencies between the evidences of P.Ws. 1, 3 and 7, we come to the conclusion that the prosecution has failed to prove the charge under Section 364/34 of the Indian Penal Code. 31. Hence, the impugned judgment of conviction is set aside. Both the appellants are acquitted of the charges and directed to be discharged from the liabilities of their respective