Criminal Appeal (SJ) No.74 of 1997 Against the judgment and order of conviction dated 20. 02. 1997 and order of sentence dated 21. 02. 1997 passed by Shri Manohar Prasad, 2nd Additional Sessions Judge, Gopalganj, in Sessions Trial No. 230 of 1989. 1. Ajay Singh @ Ajay Kumar Singh, son of Jagranath Singh. 2. Rajpati Devi, W/o Jagranath Singh. All are resident of Village- Bari Bazar, P.S. and District- Gopalganj. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Manan Kr. Mishra, Senior Advocate. Mr. Radha Mohan Pathak.Advocate Mr. Sanjay Kumar pandey, Advocate. Mr. Ratnakar pandey, Advocate. For the Respondent State : Mr. Sujit Kumar Singh.A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellant no. 1 has been convicted for offence under Section 304 Part II of Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. Appellant no. 2 has been convicted for offence under Section 304 Part II of Indian Penal Code and sentenced to simple imprisonment for three years. 3. The prosecution case as alleged that daughter 2 of the informant is missing since 2 A.M. mid night and he is making out a search and during enquiry at about 7 A.M. on 16. 06. 1989, learnt that Ajay Singh has enticed in the night itself and has kept the victim. On this information he reached at the house of Jagarnath Singh at about 8 P.M. the informant saw Jagarnath Singh, Ajay Singh and Rajpati Devi, wife of Jagarnath Singh were standing in dawarja, then he enquired and on enquiry, there was verbal altercation and they refused to return or hand over the girl. All the three ran to the roof and informant also ran on the roof and saw that all accused persons throw her daughter from the roof with intention to kill by which his daughter got injury on his head and admitted to hospital in unconscious state. 4. On the Fardbeyan, F.I.R. was lodged. After investigation charge sheet submitted. Cognizance taken and case committed to the Court of Sessions. Charge was framed under Sections 302/34 and 363 I.P.C. against Ajay Singh, Jagarnath Singh, Rajpati Devi. However, Jagarnath Singh died during trial and hence the case against him was abated. 5. During trial 17 witnesses were examined. 3 Out of 17 witnesses, P.W. 2, 3, 7 and 10 are material witnesses, P.W. 9 and 17 are the doctors who conducted the post mortem examination. Other witnesses are formal or hearsay. P.W. 15 is Anchal Adhikari who conducted the T.I.P. P.W. 11 and 13 are the I.O. 6. However, during trial it has come in evidence that victim and Ajay Singh were having love affairs. From the evidence of the doctor it has also come in evidence that victim has containing four months pregnancy and the age of the victim has been assessed to be 18 years as per evidence of the Dr. P.W. 17 in para 5. 7. However, with regard to the occurrence, P.W. 3 and 10 have stated in their evidence that when they learnt about the victim having been enticed by Ajay Singh then they went to the house of Ajay Singh to enquire about Manju (victim) and to return her on which Jagarnath gave threat. P.W. 3 in his evidence stated that they were having verbal altercation with accused they heard sound of DHAm and when they went to sound they saw that accused persons thrown her and they came down stair then saw victim fallen on the ground in unconscious state having injury on her head. Whereas 4 P.W. 10 stated they got climbed 7-8 stairs then Jagarnath asked to go away then they saw Jagarnath, Rajpati and Ajay standing at Chhaja and when they got up more three stairs then they heard sound of DHAM and when they were going to upstairs they saw that accused persons thrown the victim and the prosecution party came down and saw the victim unconscious. 8. However, P.W. 3 and 10 stated that they were on the stair when they had verbal altercation with the accused and they heard the sound of DHAM the victim was found injured have fallen from the first floor to ground floor. This sound of DHAM apparently was sound of falling of the victim. At the time of this sound there is evidence that accused and witnesses were engaged in verbal altercation at the stair and hence the witness has no occasion to see the occurrence and appellant had also no opportunity to be there to participate or instrumental in crime. 9. However, having regard to the circumstances, prosecution party alleged that victim was kidnapping. However, there is no evidence regarding kidnapped. However, to the contrary, there is evidence 5 that the victim has love affairs with accused Ajay Singh and it has come in evidence that she was of pregnant of four months. Hence in the facts and circumstances there is probability that the victim having been to the home of appellant at her own sweet will cannot be ruled out and the trial court also took into there fact to acquit the appellants for offence under Section 363 I.P.C. Hence probability that victim has gone there to her own sweet will cannot be ruled out. However, there is no evidence to suggest that victim was kidnapped. 10. Having regard to the facts and circumstances of the case, that victim was present at the P.O. the house of Jagarnath by her own sweet will. The victim was 18 years old and on consenting age. There is no reliable evidence that the victim was thrown by accused appellants. The case hinges on circumstantial evidence. However, the chain of circumstantial evidence does not give a hypothesis pointing out the guilt of the accused rather the circumstances are against the prosecution for proving the guilt of accused. There is evidence that there is evidence that there was love affairs between victim and accused Ajay Singh and she was 6 pregnant and having presence of victim at P.O. is not establish by kidnapping and hence if she has come of her own sweet will or any other means there is no probability having been killed by the accused persons or there is motive for the occurrence whatsoever against accused persons. The evidence of throwing her from roof is also not inspire confidence and hence there is no evidence except suspicion or conjecture and surmises against the accused persons. 11. However, taking into consideration the entire facts and circumstances, probability of throwing her has not made out in the facts and circumstances of the case and hence in chain circumstance also not established as only circumstance against the appellants is that victim fall down from the first floor and died and it is only conjecture and surmises that accused persons may have thrown her and done her to death. 12. Hence having regard to the facts and circumstances, it does not establish the guilt of the accused then all probabilities excluding hypothesis and sentence and hence I find that prosecution has not been able to prove the charges beyond all reasonable doubt 7 and hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court, The 30th August, 2011. NAFR/m.p. ( Gopal Prasad, J.)