1 CRIMINAL APPEAL No.270 OF 2003 - - - - Against the judgment of conviction dated 12.6.2003 and the order of sentence dated 13.6.2003 passed by the Additional Sessions Judge XIth Court, Patna, in Sessions Trial No. 429 of 2000. - - - - 1. SUDHU YADAV 2. Babloo Yadav 3. Anil Yadav … … Appellants Versus STATE OF BIHAR … … Respondent With CR. APP (DB) No.312 of 2003 1. ARBIND KUMAR 2. Botal Yadav … … Appellants Versus STATE OF BIHAR … … Respondent For the appellants: Shri Ajay Kumar Thakur, Advocate Shri Nilesh Kumar, Advocate For the State: Sushri Shashi Bala Verma, A.P.P. P R E S E N T THE HON'BLE Shri JUSTICE DHARNIDHAR JHA THE HON'BLE Shri JUSTICE BIRENDRA PRASAD VERMA - - - - Dharnidhar Jha & Birendra Prasad verma, JJ.- Five appellants of the two appeals were tried by the learned Additional Sessions Judge, XIth Court, Patna, for a composite charge under Sections 302/34 and 120 B of the Indian Penal Code in Sessions Trial No.429 of 2000. While delivering the judgment in the above noted case on 12.6.2003, the learned Judge returned a verdict of guilt against all the appellants under both Sections of offences and directed each of the appellants by the order of sentence dated 13.6.2003 to suffer rigorous 2 imprisonment for life for his individual conviction under Section 302/34 of the Penal Code. So far as the conviction of the appellants for offence under Section 120 B of the Penal Code is concerned, the learned trial Judge did not inflict any substantive sentence against any of them. The two appeals have been filed by the appellants to question the correctness of the finding of guilt and propriety of sentence passed against each of them. 2. We have heard the two appeals together and we are disposing them of by this common judgment. 3. The prosecution case is contained in the fardbeyan Ext.2 of P.W. 6 Arun Kumar stating that his two-year-old daughter Puja Kumari, who was playing out side her house, was found missing. A massive search was made for the child but to no effect. Ultimately, the informant and others picked up from somewhere that the child had been seen in possession of appellant Botal Yadav. The Mohalla people assembled. They went and captured appellant Botal Yadav who stated that the child had been handed over to him by appellant Arbind Kumar, who happened to be the full brother of the informant and further that the other appellants had also participated in some part or the other in causing disappearance of the child. Appellant Botal Yadav further stated that the child was in the custody of all 3 appellants except appellant Arbind Kumar, who had handed over the custody of it to them. However, the fardbeyan did not contain any clue as to whether the child either dead or living could be found. The above story related to 28.10.1999. 4. In the early morning of 29.10.1999 some of the villagers, as per the informant, went near a well situated just about the house of the informant to find that the dead body of a child was floating in water. The villagers assembled. They brought out the dead child. It was the dead body of the daughter of the informant. Thereafter, the matter was reported to the police by Ext.2. 5. It appears from the evidence of P.W.7 Bhawnath Manjhi who was posted as Sub- Inspector of Malsalami Police Station that he had recorded Ext.2, the fardbeyan and on that basis the F.I.R. of the case, Ext.3, was drawn up by the literate constable of the Police Station and thereafter P.W.7 took up the investigation. He came to Mohalla Rikabganj after taking over the investigation of the case. Prior to that the informant and the people of Mohalla Rikabganj had also handed over to the Officer-in-charge of the said Police Station the accused persons, namely, appellant Botal Yadav, Sudhu Yadav and Arbind Kumar. 4 6. During the course of investigation P.W.7 held inquest upon the dead body and prepared the inquest report- Ext.4 and sent the dead body for post mortem examination. P.W.7 also recorded the statements of different witnesses and finding material sufficient sent up the accused persons for trial. 7. The defence of the appellants is of false implication on account of many reasons as may appear suggested to P.Ws. 4,5 and 6. 8. During the course of trial eight witnesses were examined. P.W.1 Raj Kumari Devi is the mother of the child and she has stated about the child going missing and hunt for it and subsequent gathering of the information that appellant Botal Yadav was seen having in his company the little child and on that the said appellant Botal Yadav was captured who stated to the villagers that appellant Arbind Kumar had handed over the child to him and other appellants. Other witnesses, like, P.W. 2 Shanti Devi, P.W. 3 Raghunath Prasad, P.W. 4 Sanjay Prasad Yadav, P.W. 5 Kameshwar Prasad and P.W. 6 Arun Kumar gave almost the same story about the child. All the witnesses have stated that Botal Yadav confessed the above facts before them whereafter he was handed over to the Officer-in-charge of Malsalami Police Station. They have further stated that in the early morning of 29.10.1999 the dead body of the child 5 was located floating in the well and it was salvaged from there and, accordingly, a report was lodged. 9. The learned trial Judge acted upon the extra judicial confession of the appellant Botal Yadav and found it a reliable piece of evidence which could be utilized for basing the order of conviction which was passed by him and, accordingly, convicted the appellants by passing the sentence as indicated at the very out set of the present judgment. 10. Shri Thakur, learned counsel appearing for the appellants has challenged the very admissibility of the evidence of extra judicial confession on the ground that the evidence of witness indicated that after Botal Yadav had been arrested, he was produced before the Panches of the Panchyat and he was seriously questioned by them. The attention of the Court was drawn by Shri Thakur to the provision of Section 24 of the Evidence Act which completely bars a confession which was given or made before a “person in authority.” It was further contended that extra judicial confession which has been made the basis of convicting the appellants, was not of that quality as could be utilized for the purpose. It was the weakest form of evidence and no court could base its order of conviction without any external support from reliable evidence. It was contended that even if assuming for the sake of argument that the 6 confession of appellant Botal Yadav could be duly admitted and utilized for recording conviction of the appellants, the information to the witness on the point of appellant Botal Yadav confessing before him varies from witness to witness. We were referred to the evidence of the witnesses in that behalf in support of the contention. It was contended that the dead body was located accidentally and it was not the result of any information coming from any of the accused persons while in the custody of police and that evidence appears of no consequence. Above all, it was contended, no motive has been assigned either to appellant Arbind Kumar or to any of the appellants as to why they will be picking up the child and killing it or throwing it into the well to be killed. 11. Sushri Shashi Bala Verma, learned Additional Public Prosecutor has resisted the contention and has submitted that it could be the accused persons who could have been the best persons to know as to why they had committed the offence. It was contended that motive being very much stored in the minds of the accused persons, it could be very difficult for the prosecution to lead evidence on that and to prove it. It was contended that confessional statement was made before the villagers who did not have an axe to grind against any of the appellants and that has been found recorded 7 by the learned trial Judge and, as such, the conviction recorded by the trial court appears sustainable in law. 12. It is not always necessary that the prosecution must allege a motive. In a case of circumstantial evidence, it could be one of the Chains of circumstances that the prosecution could allege a motive on account of which a crime could have been committed. It was rightly submitted by Sushri Verma that it was completely a fact stored in the minds of the accused persons as to why an offence had been committed by them. But, at the same time, the accused persons may also find it very difficult to explain as to why they have been implicated in an offence. There was no motive assigned in the fardbeyan, Ext.2, of the informant as to why the little one who was only aged two years on the day of occurrence could be picked up even by her uncle, appellant Arbind Kumar leaving out others. What was found by the trial court is that the missing-payal could be the motive for committing the offence. The learned trial Judge has recorded that the accused persons could have fallen in lure for the payal and, as such, they picked up the child and murdered her. While considering the evidence of the witnesses we could not come across any thing that the child could have been picked up for removing the payal from her feet. If that be not the evidence, then the learned 8 trial Judge was making out a third theory for creating a motive and assigning the same to the appellants. We find that it was unusual for the learned trial Judge to make out a third story as regards the motive so as to enforcing the circumstances on proof of the charges. We are not at all inclined to accept that it could be a motive. 13. The reason which we want is coming from the evidence itself. If one could go through the evidence of P.W.5 in paragraph 1 one could find that the confession which was made by appellant Botal Yadav was that the child was picked up for the purpose of selling it and when the accused persons could not sell it then the child was brought back to the village to be killed and consigned to the water of the well. Thus, the motive found by the learned trial Judge does not go hand-in-hand with that as appears from the confessional statements of appellant Botal Yadav. Having said the above, what we find difficult to be accepted is that the above evidence of picking up of the child for a specific purpose of selling does not appear told by any of the six witnesses, who were examined as public witnesses in the case. Even the informant has not stated that while confessing his guilt before the villagers appellant Botal Yadav was stating that the child had been lifted with a purpose of selling it. 9 This could be one reason for us to discard the evidence of extra judicial confession. The other reason which we have also to point out is that when the prosecution is calling upon to base the conviction or support the conviction on the basis of confession, be it judicial or be it extra judicial, it must produce evidence in that behalf which should be consistent, convincing and fit to be accepted. Not only that, when the evidence consists of extra judicial confession then the prosecution has to point out to the court that the accused who was confessing was reposing confidence of the highest class in the man or in the person to whom he was making the confession. The evidence which has come on the record of the trial Judge shows that appellant Botal Yadav was captured from somewhere which could be either his house or which could be a place where he was relaxing that evening. The very capturing could indicate to us as to how he or any other free man, could have felt when he was finding himself subjugated by a set of his own neighbours and was being slapped with a serious charge like that of committing the murder of a little one. That was not the end of the matter. The captured Botal Yadas was produced before the Panches. This has been stated by P.Ws. 4 and 5 both and it has come in evidence that the Panches started questioning Botal Yadav and other appellants 10 seriously. It is not that the Panches were all and sundry of the village. They were the villagers and the panches of the Panchyat. So the term ”person in authority” which appears in Section 24 of the Evidence Act and could be covering, in our opinion, the Panches of the Panchyat also who were sitting to hold a Panchayati and who had proceeded to question the accused persons who were produced before them. These could be the reasons for us to record that the extra judicial confession which is said to be made by appellant Botal Yadav before the Panches could not be admitted on account of the bar created by Section 24 of the Evidence Act. 14. If We bring out the evidence of extra judicial confession from the record of the learned trial Judge, then there does not appear even an iota of evidence for us on which any one could be suspected to have committed the offence. 15. We find that the learned trial Judge while considering the evidence of the prosecution which was produced before him was not appreciating these important aspects by marshalling and appreciating the evidence and, in our opinion, was falling in serious error of appreciating the facts and law both. 16. We find that in the light of the evidence which was pointed out by the learned trial Judge, the 11 judgment of conviction was never called for. It appears to us uncalled for and we, accordingly, set aside the conviction of the five appellants and the sentence passed upon each of them and acquit them. 17. The two appeals are hereby allowed. Appellant Botal Yadav is in custody. He shall be released forthwith if not wanted in any other case. The other appellants of the two appeals are on bail. They shall stand discharged from the liabilities of their respective bonds. ( Dharnidhar Jha, J.) ( Birendra Prasad Verma, J.) Patna High Court. The 31st March, 2010 Kanth/N.A.F.R.