IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.109 of 1989 ========================================================== Sachidanand Singh @ Chunmun, Son of Gulab Chand Singh, resident of Mohalla- Khilanganj, P.S.-Sasaram Town, District-Rohtas. ... .... Appellant. VERSUS The State of Bihar .... .... Respondent. WITH Criminal Appeal (DB) No. 168 of 1989 ========================================================== Ramchela Yadav @ Ramchela Singh Yadav, Son of Late Ram Prasad Singh, resident of Village-Khilanganj, Kaswakhas, P.S.-Sasaram, District-Sasaram. .... .... Appellant. VERSUS The State of Bihar .... .... Respondent. WITH Criminal Appeal (DB) No. 184 of 1989 ========================================================== Raj Nath Dubey @ Duna Dubey, Son of Bhangi Dubey, resident of Village- Laskhariganj, P.S.-Sasaram, District-Rohtas. ... .... Appellant. VERSUS The State of Bihar .... .... Respondent. ========================================================== Appearance : (In Cr. Appl. (DB) Nos.109 & 184 of 1989) For the Appellants : Mr. Rakesh Kumar Sinha (In Cr. Appl.(DB) No.168 of 1989) For the Appellant : Mr. Pravin Kumar, Amicus curiae. For the Respondent: Ms. Shashi Bala Verma, APP ( In all) ========================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH & HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) When these batch of appeals were taken up for hearing, no one appeared in Cr. Appl. (DB) No.168 of 1989 (Ramchela Yadav @ Ramchela Singh Yadav Vs. The State of Bihar). Under 2 such circumstances, we requested Mr. Pravin Kumar, Advocate who was present in the Court to assist us in the matter. He accepted the assignment and paper book was given. We have heard the learned counsel for the appellants including the amicus curiae, the learned Additional Public Prosecutor and perused the records. This batch of appeals is against the judgment of conviction and sentence as passed by the 8th Additional Session Judge, Sasaram in Sessions Trial No.81/46 of 1988 dated 27th February, 1989. By the said judgment the three appellants who have respectively filed three separate appeals have convicted under Section-302/34 of the Indian Penal Code and sentenced to life imprisonment. The prosecution case is based upon the fardbeyan lodged by Baijnath Dubey, P.W.7 at 8:30 am on 10.01.1987, inter alia, alleging that his grandson, namely, Santosh Kumar was missing since 04.01.1987 for which he had lodged a Sanha. On 10.01.1987 in the morning he heard that a decomposed body of a young child was lying in the drain in Mohalla Khilanganj and upon hearing this he along with his son Dilip Kumar Dubey, Ashok Kumar Dubey and certain others went to the place and identified the dead body which was wrapped in a polythene bag. The fardbeyan is Ext.1 and the F.I.R. registered on basis thereof is Ext.4. The fardbeyan categorically states that Baijnath Dubey had no idea as to why his grandson was killed nor he had any suspicion on any person whatsoever. 3 On basis of the first information report, police took investigation and submitted a chargesheet against the three appellants. It may be noted that the investigation was partly carried out by Chandriak Singh, P.W.15 and later the chargesheet was submitted by Chandra Kumar Pandey, P.W.16. Appellants pleaded not guilty and false implication due to previous enmity. They were tried and convicted as aforesaid. The learned Judge found it to be a case of suspicious circumstances pointing towards guilt of the accused persons. We regret our inability to accept the same even accepting of prosecution evidence as recorded by him. In order to establish the prosecution case, the prosecution has examined 16 witnesses. Out of these 16 witnesses examined, P.W.2, Bhuneshwar Dueby, P.W.4, Jaipal Dubey, P.W.5, Jaleshwar Dubey, P.W.5, Sardar Gyan Singh, P.W.8, Amar Nath Singh, P.W.9, Gobind Thakur and P.W.14, Shyam Bihari Prasad are formal witnesses. P.W.10, Rajesh Kumar Shrivastav, Judicial Magistrate, who has recorded the statement under-164 Cr.P.C. of one Kalwati Devi, the wife of Ramchela Singh Yadav, appellant in Cr. Appl. (DB) No.168 of 1989, P.W.13 is Dr. Chandra Shekhar Prasad Singh, who conducted the postmortem examination and disclosed that the body was in such a decomposed state that it showed that the death must have occurred at least 48 hours before. P.W.15 is Chandrika Singh, A.S.I. who recorded the fardbeyan and prepared the inquest report and, being Sub-Inspector of Police, conducted the initial investigation till he was transferred. He handed over charge to P.W.16, Chandra 4 Kumar Pandey, who was Officer-in-Charge and completed the investigation and submitted the chargesheet. That leaves us with P.W.1, Bhutan Dubey, who is said to be the uncle of the deceased, P.W.3, Sarju Dubey, P.W.7, Baijnath Dubey, the informant, P.W.11, Dilip Kumar Dubey one of the son of the informant, being uncle of the deceased, and P.W.12 , Girja Dubey, the student. Learned counsels for the appellants submit that a reference to the fardbeyan would show that as of the morning of 10.01.1987, the informant, who was grandfather of the deceased boy, was clearly not aware about where the deceased boy had gone and what had happened to him. Upon finding the dead body he could not even point a finger as to who had done it and why? Learned counsels for the appellants rightly drew our attention to Ext.2 which has been proved by P.Ws.4 & 5 and which by itself falsify the fardbeyan or at least show that the true incident was something else than they projected. Ext.2 is recovery of two letters from the informant’s house immediately after the first information report was lodged. The two letters are ransom notes. They are undated and anonymous. They demanded Rs.40,000/- for return of the informant’s grandson and are addressed to the informant. It is not in dispute that these two letters were received by the informant on 07th January, 1987 and 09th January, 1987 and 10th January, 1987, being the Sunday. There is no mention of these two letters or demand of ransom in the fardbeyan, that is, lodged on 10th January, 1987 after recovery of the dead body. 5 Absence of mention of this important fact in the fardbeyan raises more questions than are answered. Then the learned counsels for the appellants point out that in the fardbeyan itself it is mentioned that the informant lodged the Sanha with the police on 04th January, 1987 but no Sanha is proved much less exhibited in the case. We may point out here that when the Investigating Officer was examined as P.W.15 even he was not asked to prove the same. It is much later on recall an undated and unsigned carbon copy of purported Sanha is produced and marked for identification. It is not proved as evidence. In his cross-examination, though he is the Sub- Inspector of Police, P.W.15 who recorded the fardbeyan and carried out the investigation initially, he clearly states that it is for the first time in the Court he is seeing such a document. It was not even in his handwriting. It was in handwriting of Bhola Rajak who was posted now in Shivsagar Police Station. Bhola Rajak was never examined. Now, we must discuss the evidence which implicates the appellants. The first is P.W.1, Bhutan Dubey one of the uncles of the deceased boy. He is the nephew of the informant. In his cross-examination before the Court, he states that on 04.01.1987 he had seen the appellant, Ramnath Dubey @ Duna Dubey catching the deceased by his hand and taken. On the next day he had left for Patna from Sasaram where 11.01.1987 he was told, as reported in newspaper, that body of his nephew, Santosh Kumar had been recovered. On his return to Sasaram, he immediately 6 disclosed the fact of seeing Ramnath Dubey @ Duna Dubey with the deceased on 04.01.1987 to the informant and the police. It may be noted here that when the Investigating Officer, P.W.15 was questioned in this regards he categorically stated that Bhutan Dubey, P.W.1 did not make any such statement to him in course of investigation. Thus, we find that it is in Court after almost 1½ years that this witness is making this statement for the first time in this manner which he had not made in course of investigation. Then, we come to P.W.3, Sarju Dubey. This witness deposed in course of investigation as well as in the Court, that on 09.01.1987, while he was returning from a Cinema show, he had seen the three appellants and when they saw him they were perplexed and went in another direction. In cross-examination this witness admits that there has been long established enmity between him and Ramnath Dubey @ Duna Dubey. Then, we come to P.W.7, the informant himself. As noted above in the fardbeyan, he does not suspect anybody but immediately after the case is registered, from his house itself he gives to the police two ransom notes which he had received by post one on the 07th January, 1987 and another on 09th January, 1987. He does not explain why these were not mentioned in the fardbeyan to the contrary it is mentioned therein that he does not know who did it and why. Investigating Officer, P.W.15 in his cross-examination has admitted that this witness, that is, P.W.7 did not take the name of the appellants in course of investigation. Now, we come to P.W.11, Dilip Kumar Dubey, the son 7 of the informant and the uncle of the deceased. In his evidence he states that prior to the kidnapping of his nephew, Santosh Kumar the appellant, Ramnath Dubey @ Duna Dubey used to speak in the locality that he would teach a lesson to the informant, Baijnath Dubey. He further states that a day before the recovery of the dead body he had heard Duna Dubey speaking in the locality that now the informant would have to pay Rs.40,000/- (the amount as referred to the ransom note). He admits that there has been enmity between the family of Duna Dubey and their family. In our view, learned counsels for the appellants rightly pointed out that if these facts are true then why he (P.W.11) did not disclose these facts to the police or to his father, the informant before. He was fully aware of his nephew missing since 04th January, 1987. He had gone with his father to identify the dead body. He was with his father when the fardbeyan was recorded. At no point of time he disclosed these facts to anybody. His statement is palpably false and it comes as an afterthought. Then, we come to Girja Dubey, P.W.12 who is a student. He states that the three appellants were friends and a day before, that is, on 09.01.1987 he had seen the three appellants were talking in a hut near where the dead body of the deceased was recovered on the next day. There is yet another fact. The Investigating Officer, P.W.15 has stated that upon recovery of the dead body he had requisitioned a Snipher Dog. That dog stopped at ‘Merai’ (hut) of Ramchela Singh Yadav one of the appellants. The prosecution has 8 relied upon the statement of Kalawati Devi, the wife of Ramchela Singh Yadav, recorded under Section-164 Cr.P.C. to show that Ramchela Singh Yadav and Duna Debey were well acquainted. These are the only pieces of evidence as against the appellants. In our view, they are neither a chain of events nor connected nor can they said to be uninterrupted. They do not even raise suspicion much less strong suspicion against the appellants of their involvement in the crime. The manner in which the story is built up from the fardbeyan would clearly show that all that has been said or developed is an afterthought. All those facts were known to the persons from before. They were known to the persons having known that the boy mysteriously disappeared. They were known to relations and very close relations. Yet, we find no mention thereof in the fardbeyan. At the very out set, we may notice that conviction is to be based upon proof of circumstances as against the accused persons. It is now well established principle that it must be an unbroken chain of events leading to the irresistible conclusion of the accused being guilty of the offences being charged. However, strong suspicion may be, suspicion cannot take the place of proof. There must be immediate and direct connection with the disappearance of a person and the accused persons and the chain must be unbroken till the recovery of the dead body. Unfortunately, in our view, not even one condition of these principles stands satisfied. Yet, unfortunately the appellants stands convicted. 9 In such a situation, we cannot uphold the conviction. We are constrained to hold that they have been wrongly convicted and there is no evidence of their involvement. In the result, these appeals are allowed. The convictions are set aside. The appellants are discharged from liabilities of their bail bonds. We appreciate the assistance given to us by learned counsels for the appellants including the amicus curiae, who is entitled to be paid for one day hearing fee by the Legal Aid Committee, Patna High Court, Patna. Patna High Court Dated 20th October, 2011 Trivedi/AFR (Navaniti Prasad Singh, J.) (Ashwani Kumar Singh, J.)