CRIMINAL APPEAL (DB) No.871 of 2004 ------- Against the judgment of conviction and sentence dated 27.7.2004/ 28.7.2004 passed by Shri Rajiv Shrivastava, P.O. Addl. Court (F.T.C.-II), Rohtas at Sasaram in Sessions Trial No.176 of 1991/T.R. No.111 of 2003. BINOD KUMAR RAI …… ….Appellant Versus STATE OF BIHAR …… ….Respondent ------- For the appellant: Mr. Nil Kamal For the State: Mr. Ashwani Kumar Sinha, ------- Dharnidhar Jha & Rakesh Kumar,JJ. 1. The solitary appellant, who was tried for the charges under sections 302 and 307 of the Indian Penal Code by Fast Track Court-II, Rohtas at Sasaram in Sessions Trial No.176 of 2001, by judgment and order of conviction dated 27th July, 2004 was found guilty by the above noted court. While hearing the appellant on sentence, the learned judge directed the appellant to suffer rigorous imprisonment for life under section 302 of the Indian Penal Code and also rigorous imprisonment for seven years for the offence under section 307 of the Indian Penal Code. The sentences were directed to run concurrently. The above judgment and order of sentence stands questioned through the present appeal. 2. The prosecution case is contained in Ext-1, which is fardbeyan of Sanyoga Devi, P.W.8, who happens to be the mother of the present appellant. It was stated in the fardbeyan of 2 the informant that the appellant was seeking partition of properties and house from his father, who was not ready for it and always discouraged the appellant to do that. The tenacity of the appellant about partition was of such an extent that he had created a separate entry for himself into the residential house in which the appellant and his family members were living. The appellant was insisting upon his wife to cook separately, but Gita Devi was a good soul and she always discouraged the appellant from seeking partition of the properties and, as such, on the date of occurrence she cooked meal for the whole family. The appellant, his wife Gita Devi, the deceased, the daughter of the appellant, Gudia, and his little son Prabhat Kumar had retired to their beds after taking dinner. 3. It is alleged by P.W.8 that at about 11.30 P.M. she picked up noise of the door being knocked at and thought that a thief had come, but she also picked up cries of Prabhat Kumar, son of the appellant. She rushed out of the house with a lamp and found that the appellant was in his Baniyan and had also shorten his clothes and picked up the little child Prabhat Kumar and was rushing out of the house by the door he had created by breaking the wall of the house. The informant stated that she found the 3 appellant running away. It is alleged by the informant that she came out of the house and found that her daughter-in-law was speechless and further found that the appellant was attempting to bury his son Prabhat Kumar in mud. The lady stated that she got frightened and rushed towards the police guards and they came along with the informant, then the appellant left the little child Prabhat Kumar and ran away. A search was made by the informant of him but he could not be found. 4. It was stated by the informant P.W.8 in her fardbeyan that she along with the constables came inside the house and found that the throat of Gita Devi had been cut and it was bleeding and further that she was lying dead on the bed. The lady stated that the murder of Gita Devi had been committed by a weapon like Garasa by the appellant because he was disturbed on account of not getting the properties partitioned and she stated that the weapon of offence was also lying beneath the bed which had blood over it. 5. As may appear from the evidence of Bachcha Singh, P.W.10, after recording Ext.1 he sent the same for institution of a case to the police station and on that basis first information report Ext.4 was drawn up. He prepared inquest report of the 4 dead body and also inspected the place of occurrence, specially, the room in which the dead body was lying and found that her throat had been slit with a sharp cutting weapon. Inquest report had been marked as Ext.6 in this case. He seized the blood stained bed, earth and Garasi of a chaff cutter from the place of occurrence and prepared the seizure memo and he sent the dead body for postmortem examination to Sadar hospital, Sasaram. 6. Dr.Chandresh Bikaram Singh, P.W.9, found that the dead body had following ante mortem injuries: (i) an incised wound just below mandible over right side of the neck placed transversely and 4” x 3” x 2” dividing the underlying vessels and muscles into two parts. (ii) an incised wound placed ½” below injury no.1of the right side of neck measuring 4 ½” x 2” x 1 ½” deep dividing the underlying soft tissues carotid vessel and trachea into two parts. 7. In the opinion of the doctor the injuries were caused by sharp edged weapon like Garasa. The death had occurred on account of hemorrhage due to above noted injuries within 36 hours of the holding of the post mortem examination. The postmortem report has been marked as Ext.3. Thus, from the 5 evidence of Dr.Chandresh Bikram Singh, P.W.9, there does not remain any doubt that the deceased had been hacked to death possibly by a weapon as dangerous as Garasa. 8. But the evidence of the doctor or the evidence of the investigating officer is not going to help the cause of the prosecution much, if other evidence either of direct nature or of prevailing circumstance was produced by it so as to creating a link of circumstances. We are constrained to hold that there was very vital circumstance in favour of the prosecution in the form of the evidence of Dr. Basant Kumar, P.W.7, who had the occasion of examining the appellant when he was arrested and produced for his examination by the police before him. P.W.7 had found lacerated wound on right middle finger of the hands of the present appellant of the size of ½” x ¼” x ¼” which was simple in nature caused by hard and blunt substance. Besides, another lacerated wound on right ring finger of the appellant of the size of ¼” x ¼” x ¼” simple in nature caused by hard and blunt substance was also recorded by him. Those injuries might have been caused, in our considered view, to the appellant while the deceased-lady could grappling with him so as to coming out of his clutches. But that again appears a circumstance innocuous 6 and meaningless in absence of any admissible evidence either of direct or of circumstantial nature. 9. The difficulty faced with the prosecution was readily accepted by the learned Additional Public Prosecutor when he was arguing that it is true that the mother of the appellant had lodged Ext.1 just after she had noticed the appellant indulging in the act of attempting to bury his little son into mud, but when she came to support her previous statement, she simply made a statement stating to the court that she had not given any statement to the police. What she further stated was that when she woke up on hearing the cry of the child, she found that her daughter-in-law, the deceased, was lying in the Aangan and her little son was crying on her body. Further, in her evidence in court she stated that she found her daughter-in-law butchered. She has further resiled from her statement by not stating that the weapon of offence was pointed out by her to the police and that was seized. This was the reason that P.W.8 was declared hostile and was cross-examined to her previous statement made in the form of Ext.1. As regards other witnesses the same position emerges from the record, some witnesses like P.Ws. 1, 2, 3, 4 and 5 have stated that P.W.8 stated to them as to how the 7 appellant had killed his wife but the fact remains that none of them are themselves witnesses to any part of the occurrence. When they say that they had learnt about the incident from P.W.8 which could be admitted in evidence for being read, in our opinion, only when P.W.8 would have deposed that she had informed the witnesses. We are constrained to hold that the evidence of the witnesses on deriving knowledge about the occurrence from P.W.8 is not admissible and, as such, not much could be done after utilizing it to affirm the findings of the learned lower court. This was what emerges from the evidence which is available on the record of the case and on that basis we cannot sustain the judgment of conviction and order of sentence passed by the learned trial judge. Accordingly, it is hereby set aside. 10. In the result, the appeal is allowed. The appellant is acquitted in lack of admissible evidence. The appellant is in custody. He shall be released forthwith, if not required in any other case. (Dharnidhar Jha,J.) Patna High Court (Rakesh Kumar,J.) The 12th January, 2010 Md.S. (NAFR) 8