CRIMINAL APPEAL No.668 OF 2004 ***** Against the judgment of conviction and order of sentence dated 11th of September, 2004 passed by Sri Shambhu Nath Singh, Additional Sessions Judge, Fast Track Court No.-IV, Bhagalpur in Sessions Trial No. 378 of 1987/Tr. No. 85 of 2003. 1. SATYA NARAIN SINGH @ SATYA NARAIN MANDAL, Son of Late Fulchand Mandal, Resident of Village-Kalikapur, P.S.-Sabour, District- Bhagalpur 2. BINOD SINGH @ BINOD MANDAL, Son of Late Banarasi Singh @ Banarasi Mandal, Resident of Village-Jaikhut, P.S.-Sabour, District-Bhagalpur. --------------(Appellants) Versus THE STATE OF BIHAR ----------------------(Respondents) For the Appellant : Mr. Vindhya Keshari Kumar, Sr. Adv. Mr. Subodh Prasad, Adv. Mr. Manohar Pd. Singh, Adv. Mr. Ajay Kr. Jha, Adv. For the State : Mr. Ashwani Kr. Sinha, APP. ***** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD ****** S.K. Sharma & Gopal Prasad, JJ. The instant appeal of appellants Satya Narain Singh @ Satya Narain Mandal and Binod Singh @ Binod Mandal is against the judgment of conviction and order of sentence dated 11.09.2004 passed in Sessions Trial No. 378 of 1987/T.R. No. 85 of 1983 arising out of Sabour P.S. Case No. 132 of 1981 passed by the Additional Sessions Judge, Fast Track Court No. IV, Bhagalpur by which he has convicted the 2 appellants under Sections 364, 302, 201/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. 2. The appeal relates to an occurrence dated 19.08.1981. On that date the informant has given his fardbeyan at 11.00 a.m. before Officer-in-Charge of Sabour Police Station stating therein that the informant along with his Bhabhi namely, Dulari Devi (P.W. 3) and Bhagwat Mandal were going to Bhagalpur for purchasing clothes by rickshaw of one Md. Gulam Ali-resident of Village Jaikhut. In the way when they reached near Kusum Pokhar on the Ghogha Sanhaula Metal Road at about 4.45 a.m. then the informant saw towards west Binod Mandal (Appellant No. 2), Banarsi Mandal (dead), Kuldeep Mandal, ‘Mukhiya’ (dead) and Kamleshwari Mandal (dead) appearing with traditional weapons and firearms and they intercepted the rickshaw and Bhagwat Mandal was pulled out from the rickshaw by them. From the west from the boaring Brahmdeo Mandal (dead) and Satya Narain Mandal (Appellant No. 1) and eight others came. They were also having firearms. Binod Mandal asked the other accused to take Bhagwat Mandal to Malchhatta Baniyar. The miscreants caught hold the hand of the informant’s brother and they dragged him. The 3 informant’s brother and the accused persons were followed by the informant (P.W. 2) and his Bhabhi (P.W. 3). Kuldeep Mandal ‘Mukhiya’ asked the informant and his Bhabhi to return but they did not return. On the bank of river Binod Mandal (Appellant No. 2) fired from his gun upon the deceased and threw him into the river. When he died then the body was taken out. Appellant Binod Mandal took the Garasa from Kuldeep Mandal and the body was cut into pieces. Upon the hue and cry the villagers of Jaikhut came. They were also fired upon and abused. The occurrence was witnessed by many persons including Gayasuddin Ansari (not examined), Bhairo Mandal (not examined) and Uttam Narayan Mandal (not examined). 3. The informant’s brother stated that Binod Mandal (Appellant No. 2), Brahamdeo Mandal, Satya Narain Mandal (Appellant No. 1), Kuldeep Mandal, Banarsi Mandal, Kamleshwari Mandal and eight unknown have killed and cut into pieces of his brother Bhagwat Mandal and, thereafter, the body was thrown into the Malchhatta Baniyar River. After this, the informant and his Bhabhi returned to their home. At the behest of the villagers the informant came to the police station and gave his fardbeyan which was recorded by Shri M.P. Sahay, the Officer-in-Charge of 4 Sabour Police Station and the investigation was taken by him. In course of investigation, the I.O. recorded the statement of witnesses under Section 161 of the Code of Criminal Procedure. After consideration of the First Information Report and after considering various aspects of the case the police submitted charge sheet. Cognizance was taken and the case was committed to the court of Sessions where charges were framed under Sections 364, 302/34 and 201 of the Indian Penal Code and explained to the appellant but they pleaded not guilty and claimed to be tried. 4. In order to prove the charge the prosecution has examined seven witnesses. They are Sitabi Mandal(P.W. 1), Mahesh Prasad Mandal (P.W. 2) (informant), Dulari Devi (wife of the deceased) (P.W. 3), Shaligram Mandal (brother of the deceased) (P.W. 4), Yogendra Mandal (P.W. 5), Bishu Mandal (P.W. 6) and Bibhuti Mandal (P.W. 7). 5. That out of seven witnesses P.W.1, P.W. 5, P.W. 6 and P.W. 7 have not supported any part of the allegation and so they were declared hostile by the prosecution. The material witnesses of the prosecution were P.W. 2 and P.W. 3 who have claimed themselves to be eye-witnesses of the occurrence. 6. The trial court after considering the entire evidences and 5 other materials on record found the appellant guilty and sentenced them, as stated above. 7. This Court has to see whether the prosecution was able to prove the charge against the appellant beyond the shadow of all reasonable doubts or not. 8. P.W. 2 in his evidence given on 22.12.1993 stated that about 12 years earlier on 19.08.1981 at about 4.45 a.m. the informant was going along with Bhagawat Mandal and with wife of Bhagwat Mandal through rickshaw of one Md. Gulam Ali (not examined). As soon as they reached near Kusum Pokhar then the informant spotted Binod Mandal (Appellant No. 2), Banarsi Mandal, Kuldeep Mandal who intercepted the rickshaw. At that time they were armed with Gun and Garasa. Binod Mandal, Satya Narain Mandal (Appellant No. 1) and others came from the western side they were also having Gun, Garasa and Arrow. At the behest of Binod Mandal, Bhagwat Mandal was carried towards Malchhatta Bahiyar. Other miscreants took away Bhagawat Mandal who was followed by the informant and his Bhabhi (P.W. 3). According to this witness Bhagwat Mandal was shot at and thrown into water. Therefore, Binod Mandal took out the body of Bhagwat Mandal and cut into pieces and the dead body was thrown. This witness has identified the accused 6 persons and this witness has given role to the Appellant No. 2 that he was responsible for that but he was not given any specific role to another appellant namely, Appellant No. 1. Suggestion was given to this witness that the dead body was never recovered and in fact the victim was never killed but this witness has denied the statement. Similar is the evidence of P.W. 3 who has supported the factum of occurrence. 9. P.W. 4 is brother of the informant and as well as the deceased. He has stated in his evidence that the miscreants encircled Bhagawat Mandal and one of the miscreants Banarsi shot dead Bhagwat Mandal. This witness has identified only Banarsi and Kuldeep Mandal. In Paragraph- 13 of his cross-examination on behalf of these two appellants he has stated that he was known to them but they were not present at the time of occurrence. In the present case, the I.O. and the doctor have not been examined. 10. Learned Counsel appearing on behalf of the appellants at the outset has drawn attention towards the orders dated 03.01.2008, 02.03.2009 and 18.05.2009 of this Court and it has been submitted that the appellant no.2 was juvenile on the date of occurrence which is clear from various facts. 7 Today, the learned Counsel for the appellants has filed a petition under Section 7A of the Juvenile Justice Act in the Court annexing the order dated 23.10.1981 of the Additional Chief Judicial Magistrate and it has been submitted that the age of the Appellant No. 2 was determined and on that date the judicial finding was given by the Additional Chief Judicial Magistrate that the Appellant No. 2 Binod Singh @ Binod Mandal was below 16 years on the date of occurrence and so he was granted bail. So, it has been submitted that in view of the fact that the appellant was juvenile at the time of occurrence so, he should have been given the benefit. Attention has also been pointed towards the statement of P.W. 2 in Paragraph-9 in which he has stated that at that time of occurrence he was of 10 years. Binod Mandal was five years elder to him meaning thereby that Binod Mandal was of the age of 15 years. It has also been submitted that statement under Section 313 of Binod Mandal was recorded in the year 2004 by the trial court and the trial court has assessed the age of Appellant No. 2 as 32. On this basis it has been submitted that the appellant was aged 9 years and he is in custody since about five years. 11. All these submissions have been taken later on in view of earlier order of this Court that the prayer of the juvenile of 8 the appellant shall be considered at the time of hearing. 12. The case is based on testimony of two eye-witnesses namely, P.W. 2 and P.W. 3. P.W. 4 is also a witness of the occurrence. He has been brought by the prosecution to support the case. He has given another version of the occurrence. Though, he has supported the factum of murder of Bhagwat Mandal but he has given the name of the assailants as Banarsi and Kuldeep. His statement exonerates the appellants. This witness has not been declared hostile and his testimony has not been discredited by the prosecution. The prosecution has relied upon the testimony of this witness which has given altogether different version of the occurrence that these two appellants are not the assailants rather assailants are the other persons who are not here. There is substance in the submissions of the learned Counsel appearing on behalf of the appellants that P.W. 4 has given another version of the occurrence and that witness was not even declared hostile by the prosecution or he was cross-examined. 13. The prosecution case is that the dead body was taken out but the doctor has not been examined so cause of death has not been proved. The post-mortem examination report has not even been formally proved. In absence of the doctor 9 it cannot be said as to what was the cause and the time of death. In absence of post-mortem examination report it is difficult to say as to whether the person alleged to have been shot dead was ever killed or not or in which manner he has died. The definite case of the prosecution is that the dead body was found, has remained un-established in absence of examination of the doctor who has conducted autopsy or in absence of post-mortem examination report. Compounded with this the I.O. has also not been examined. In absence of the evidence of the I.O. the place of occurrence has not been proved because according to the ocular version there are two places of occurrence and the distance between one place of occurrence from another has also not come in the record. Due to non-examination of the I.O. the defence could not take out the contradictions of the witnesses and this has definitely caused prejudice to the defence. Specially in view of the fact that the doctor was not examined and the post- mortem report has not been brought on the record. 14. Learned Counsel appearing on behalf of the State has submitted that non-examination of the I.O. has not caused prejudice. In view of the ocular statement of the witnesses, we are unable to agree with the submissions of the learned Counsel for the State that the non-examination of the I.O. 10 has not proved fatal to the prosecution case. 15. In absence of the I.O. the place of occurrence has not been established. It has also not been established as to whether the person who is alleged to have been killed is dead or alive. The doctor has not been examined and the post-mortem has not come on the record. P.W. 4 is a relied upon witness of the prosecution and he has described the manner of assault but according to him, the assailants are others and not the present appellants. These are material contradictions. The prosecution cannot rely upon the weakness of the defence version and it has to prove its case on its own. It is the prosecution that has alleged that the killing was by these appellants on the date and time. Hence, the onus lies upon the prosecution to prove that the killing was in the manner as stated by the informant and other witnesses. The prosecution has failed to discharge onus. 16. Considering this, we are of the view that the prosecution has not been able to prove the charges against the appellants beyond reasonable doubts and the benefit of doubt has to go to the accused and therefore prosecution case fails due to certain infirmities discussed above. 17. In the result, this appeal is allowed and the judgment of conviction and order of sentence is set aside. The appellants 11 are acquitted of the charges leveled against them and they are also discharged from the liabilities of their bail bonds. 18. One of the appellant namely, Binod Singh @ Binod Mandal (appellant no. 2) is in custody, he is directed to be released forthwith, if not wanted in any other case. Patna High Court, Patna Dated 20th April, 2010 kksinha/- N.A.F.R. (Shyam Kishore Sharma, J.) (Gopal Prasad, J.)