CRIMINAL APPEAL No.491 OF 1988 ******* Against the judgment and order dated 21st July, 1988 passed by Shri J.P. Verma, Sessions Judge, Sitamarhi, in Sessions Trial no. 5 of 1986. ******* Surendra Mishra ---------------------Appellant Versus The State of Bihar-------------------Respondent ******* For the Appellant : Shri Neeraj Kumar @ Sanidh Amicus-curiea For the State : Sushri Shashi Bala Verma, APP ******* P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra, JJ. The solitary appellant was tried by learned Sessions Judge, Sitamarhi, for a charge under Sections 302 and 379 of the Penal Code and in the alternative under Section 392 of the Indian Penal Code in Sessions Trial no. 5 of 1986 and was found guilty by the learned Judge by judgment dated 21st July, 1988 of committing offences under Sections 392 and 302 of the Indian Penal Code. The learned Judge directed the appellant to suffer 2 rigorous imprisonment for ten years under Section 392 and rigorous imprisonment for life under Section 302 of the Penal Code. The appellant questions his conviction and sentences passed upon him. 2. A dead body was found by P.W.6, Rahmatullah, who was the Dafadar of the Circle. The dead body was floating in water and it was headless. Villagers had also assembled there and on search the separated head was also picked up in water but no one identified as to whose dead body it could be. But this much was clear that it was a dead body of a male. Rahmatullah, P.W.6, lodged the report, Exhibit-3, and on that basis Exhibit-5, being first information report, was drawn. P.W.11, Raj Deo Singh, took up the investigation and after completing the same sent the present appellant up for trial. 3. During the course of the trial twelve witnesses were examined, out of whom P.Ws 2, 4, 8 and 9 were declared hostile. P.W.7, Muslim Baitha, the 3 brother of the deceased Hakim Baitha, was tendered for cross-examination. The father of the deceased Hakim Baitha, was examined as P.W.5. P.Ws.1 and 3 were witnesses to different documents like the seizure list and the inquest report. The appellant did not produce any evidence in his defence. 4. We were taken through the evidence of the witnesses by the learned Amicus-Curiae, appearing before us, and from it we find that the identification of the dead body could not be established by looking to it as was initially the case, as may appear from the fardbayan. Father of the deceased, Hakim Baitha, stated that he was shown the clothes of his son by P.W.11 and he identified them to be those of his son. However, P.W.11, the Investigating Officer of the case, stated in his evidence that P.W.5, the father of the deceased, brought the photograph of his son with him and he tallied the clothes which were found lying at some distance away from the place from where the dead body was retreated and found them the said clothes and, thus, 4 the evidence of P.Ws. 5 and 11 on the identification of the dead body appears contradictory. Besides the evidence of the doctor, P.W.10, also does not lead to any definite conclusion as to whose dead body it could be as the doctor has, firstly, said that it was a dead body of a Hindu male but subsequently, in his cross-examination, he has stated that he could not give a definite opinion as to on what basis he could say that the dead body was of a Hindu male. The head of the deceased was recovered but again, as we have just pointed out, the state of decomposition of the dead body, including the head part of it, was in such an advance stage that none of the witnesses could identify it as to be of any particular person. 5. As regards the evidence of last seen, there is no support to the evidence of P.W.5, the father of the deceased, that his son was taken away by the appellant by bicycle on the pretext of going to his marriage place. There is no evidence on record that the deceased was seen by any one else on way to his sasural 5 or at any particular place on or around the date of occurrence. There is no definite date stated by the father of the deceased as to when his son was taken by the appellant. The witnesses, who come forward, are also completely silent on it. In fact, most of them turned hostile. Thus, there is a complete lack of evidence on the point that the deceased was taken away by the appellant. Besides, we do not find any satisfactory reason brought on the record to satisfy our enquiry as to what was the reason for which the present appellant could have killed the deceased. 6. In view of the fact that the identity of the dead body was not established and further the evidence of being last seen together appears suspect and there could not be any motive for which the appellant could be said to have committed the murder, we find that it was not a case in which the verdict of guilt against the appellant could have been recorded. In the above circumstances, we find merit in the appeal. The conviction and sentence, passed against the appellant, 6 are hereby set aside. The appeal is allowed. The appellant is on bail. He shall stand discharged from the liabilities of his bail bond. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High Court, The 02nd July, 2010, AAhmad/(NAFR).