CRIMINAL APPEAL No.344 Of 2008 Against the judgement of conviction and order of sentence dated 7.12.2007 and 11.12.2007 respectively passed by Additional Sessions Judge, Fast Track Court No-IV, Khagaria in Sessions Trial No.67 of 2004. BHISM PRASAD YADAV-----------------------Appellant Versus STATE OF BIHAR---------------------------Respondent ----- For the appellant:- Sri K. Vishokanand, Advocate. For the State:- Sri Lala Kailash Bihari Prasad, A.P.P. P R E S E N T THE HON’BLE SMT JUSTICE MRIDULA MISHRA THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Mridula Mishra & Dharnidhar Jha, JJ. The solitary appellant was put on trial in Sessions Trial No.67 of 2004 by framing charges under Sections 302, 201, 120B and 406 of the IPC and was found guilty of committing the above offences by the learned Additional Sessions Judge, Fast Track Court No.IV, Khagaria by judgement dated 7.12.2007. After hearing the appellant under Section 235 of the Cr.P.C., the learned trial Judge directed the appellant to suffer rigorous imprisonment for life and also to pay a fine of Rs.2,000/- each on account of being convicted under Section 302 and 120B of the Penal Code else to suffer additional term of rigorous imprisonment for six months under those counts. The appellant was directed further to suffer rigorous imprisonment for seven years as also to pay a fine of Rs.1,000/- for his conviction under Section 201 of the IPC and in case he defaulted in making the payment of the fine 2 imposed, the appellant was to suffer further period of rigorous imprisonment for three months. So far as the conviction of the appellant under Section 406 IPC is concerned he was directed to suffer rigorous imprisonment for three years. The above orders of conviction and sentence passed against the appellant us through the impugned judgement are being questioned before us through the present appeal. 2. The evidence on record points out that a truck bearing registration no. WB 41-3969 was consigned to West Bengal with a consignment of 300 bags of Masoor pulse which was reported to be found abandoned on the National High Way somewhere in the district of Navgachhia. Simultaneously, a dead body was also located lying by N.H.31 in Khagaria. P.W.3, who was the officer-in-charge of Maheshkhut police station on 7.8.2003, received the above information about a dead body being located and accordingly, he reached at the place where it was found lying and he held inquest upon it and prepared the inquest report Ext-2. He, thereafter, recorded the statement of the informant, i.e., P.W.2 Bahadur Paswan about the finding of the dead body and took up the investigation. 3. He sent the dead body for postmortem examination. The dead body was found bearing a plastic rope around its neck and it showed as if the deceased had been strangulated to death. He recorded the statement of the informant P.W.2 and the witnesses to inquest P.W.9 and others. While P.W.3 was investigating the case. He received an information from 3 Bhawanipur out post in Naugachhia that a man tied on his hands, who claimed himself to be the driver of the abandoned truck bearing registration no.WB-41-3969 had reported to the officer-in-charge of Bhawanipur police station that the cleaner of the truck along with the truck had been kidnapped. It was this appellant who was making the above report to Bhawanipur out post with his hands tied with rope. The appellant was taken into custody by P.W.3 and was questioned. The appellant is said to have divulged that under a well thought out plan, the consignment of the truck was unloaded and the cleaner was killed and further that the consignment was lying somewhere in Hajipur. 4. P.W.3 points out through his evidence that in the light of the information which was given by the present appellant, a raid was conducted in a Marai which was belonging allegedly to one Suresh Sah and from that particular Marai 154 bags of Masoor pulse were recovered. In additional to the above recovery, 25 bags of yellow colour and another empty 50 bags were also recovered. The seizure memo was prepared. Subsequently, the owner of the truck, the person who had consigned the pulses as also the transporter who had arranged for the truck bearing registration no.WB-41-3969 were also examined and finding the material sufficient the appellant was sent up for trial. 5. During the course of the trial 11 witnesses were examined, out of whom P.Ws. 4 and 5 Jagdeo Singh and Satya 4 Narayan Paswan respectively were declared hostile. P.W.9 Amar Nath Gami, who had consigned the 300 bags of Masoor pulse to Balooghat, West Bengal, had supported the fact that he had hired the truck for dispatching 300 bags of the said pulse from All India Transport, Muzaffarpur and this fact has been testified by P.W.6 Bashist Singh. P.W.1 Ravindra Kumar Chaurasia was a witness who simply stated that he found a dead body being brought by P.W.3 on a thela. P.W.2 Bahadur Paswan had testified to the fact of locating a dead body by the side of the National High Way and reporting the same to P.W.3 upon which the case was registered at the statement of P.W.2 and investigation was taken up. P.W.7 Prakash Paswan had produced certain material exhibits before the trial court whereas P.W.8 Vijay Chaurasia was the person who had witnessed the inquest held on the dead body. 6. As may appear from the evidence of Dr. Vijay Kumar Singh there could not be any doubt that the deceased was strangulated to death whose identification has been claimed to be as that of Munna Bauri who was allegedly the cleaner of the truck. P.W.11 has found a rope-pattern-mark, blackish in colour on the upper part of the neck on its interior and lateral sides and on dissection he found that the neck muscle was congested. Lunges, liver, kidney and spleen were found congested. In the opinion of P.W.11 the death was on account of strangulation. 7. What we find from the reading of the evidence of 5 witnesses is that there is absolutely no evidence showing that it was this appellant who had committed the offence or at least that he had participated in commission of the crime. The evidence upon which the conviction of the appellant has been based is the recovery of 154 bags of Masoor pulse along with the 75 empty bags. There is no evidence on record to indicate that indeed the bags of Masoor pulse which were recovered from the Marai of one Suresh Sah were indeed the bags which had been consigned by P.W.9 Amar Nath Gami by the truck in question. P.W.3 has not tendered any evidence pointing out to us that any identification parade was held for identifying the bags to be those which had been consigned on the truck bearing registration no. WB 4 3969. Likewise, we find that there is absolute lack of credible evidence as regards the evidence of discovery of the bags of pulses consequent upon the statement said to be made by the present appellant. It is true that P.W.3 has stated that he questioned the appellant who gave some information about the storage of the bags but who were the persons before whom the statement was recorded has not been pointed out by P.W.3., least to talk of the persons being examined in court. We have already pointed out that there is a serious doubt about the bags which were recovered from a Marai in Hajipur to be the part of the consignment which were consigned through the truck in question. In fact we could go to the extent of holding that it may be a case in which we could not hesitate in noting that the recovered bags of Masoor 6 pulse may not be the consigned article because P.W.9 never stated that nor the recovery evidence connects those 154 bags as part of the consigned article. The worst was that when the appellant was being examined under Section 313 Cr.P.C. the learned trial Judge was not putting to him the circumstance which he was using against him to hold him guilty. That particular circumstance of giving an information to the police officer while being in custody of the police which led to the recovery of the bags of Masoor crop appears completely absent from the many questions which were put to the appellant. The other aspect of the case which we have come across is that the dead body which was located by the side of the National High Way and upon which P.W.3 held inquest and the finding of which was the basis for registering and investigating a case was never established by acceptable and satisfactory evidence to be that of the deceased Munna Bauri. P.W.3 has stated that he got the photographs of the dead body taken and those photographs were seen by many persons who pointed out to him that it was that of Munna Bauri who was the cleaner of the truck. Unfortunately, there is a complete lack of evidence as to who were those persons who had seen the photograph and had testified to that fact before the police. No evidence is available as to how those persons could be acquainted with the deceased. The worst was that none of those persons had appeared before the trial court to testify that he had indeed the occasion of seeing the photograph of the deceased and had 7 identified it to be that of Munna Bauri. We have already dealt with the evidence on identification of the recovered bags of Masoor pulse and we do not want to say anything more on it. 8. In our considered view these were some of the fallacies in the prosecution case which were completely overlooked by the trial court while recording the finding of guilt against the appellant and passing sentences under different counts upon him. We are satisfied from evidence, as available to us, that the prosecution had not succeeded in proving the charges to the hilt. In fact there was no evidence worth accepting to record of finding of guilt, which position was readily conceded to by Shri Lala Kailash Bihari, the learned Senior State Counsel appearing in this case. 9. In the result, we find the appeal meritorious. The same is hereby allowed by setting aside the judgement of conviction and the order of sentence which were passed against the appellant and as such we direct the release of the appellant forthwith from custody, if not wanted in any other case. Patna High Court Dated, the 4th of January, 2011, Brajesh Kumar/NAFR. ( Mridula Mishra,J. ) ( Dharnidhar Jha,J.)