CRIMINAL APPEAL No.385 of 1988 Against the judgement of conviction and order of sentence dated 25.5.1988 passed by Sessions Judge, East Champaran, Motihari in Sessions Trial No.308 of 1986. 1.RUPAN SAHANI, 2.MOTI LAL SAHANI, 3.HIRA LAL SAHANI & 4.BHADAI SAHANI------------------------Appellants Versus THE STATE OF BIHAR--------------------Respondent ------ For the Appellants:- Sri Neeraj Kumar @ Sanidh For the State:- Sushri Shashibala Verma,APP. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON’BLE SRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra,JJ. The four appellants were tried by the learned Sessions Judge, Motihari for charges under Sections 364, 302 read with 34 and 201 of the IPC for an offence which had allegedly taken place on the 29th of May, 1986. While delivering judgement in the case on the 25th of May, 1988, the learned Sessions Judge acquitted the appellants of the charge under Section 364 of the IPC, but found them guilty of committing offences under Sections 302/34 and 201 of the Penal Code and directed each of the appellants to suffer rigorous imprisonment for life under Sections 302/34 of the Penal Code and rigorous imprisonment for one year each under Section 201 of the Penal Code. The appellants have brought into question the above judgement and the findings recorded - 2 - therein by the learned trial court by preferring the present appeal. 2. The fardbayan of Dhorha Sahani, who happened to be the full brother of the mother of the deceased Wakil Sahani, is the basis of the FIR Ext-3. It was alleged by the informant that on 29.5.1986 at about 4 P.M. appellants Rupan Sahani and Hiralal Sahani who was the full brother of Motilal Sahani, took away the deceased Wakil Sahani from the house of Champa Devi (P.W.1) for fishing in the river. Champa Devi was wife of the younger brother of the informant. It was alleged that the deceased was not inclined to go with the appellants, but the two above-named appellants forcibly took him away. When it was dark and the deceased had not come back, P.W.9 went in search of the deceased and enquired from the above two appellants Rupan Sahani and Hira Lal Sahani about the whereabouts of deceased Wakil Sahani, who said that the deceased had already gone to his village Parsaunia. The informant not being satisfied on the reply given by the appellants, sent his son Bachu Sahni(P.W.7)to Parsaunia. P.W.7 and the sister of the informant who was the mother of the deceased, came together to the informant to inform him that the deceased had not reached his house. Thereafter, the informant and the Chaukidar of the - 3 - village went in search of the deceased in the river and found the dead body of the deceased lying about 500 yards west of Kabahi Ghat within Motipur police station. The dead body was floating in the river. 3. The informant started making enquiry about the death of the deceased and in that connection he met Balli Sahani(P.W.2) and Ram Autar Sahani(P.W.3)both of whom pointed out to P.W.9 that they had seen the deceased fishing with appellant Rupan Sahani in one boat whereas the remaining appellants were seen in another boat. The informant stated that he requested Mukhlal Sah (not examined)and Chaukidar Rambilash Rai(also not examined)to inform the police station. 4. As pointed out just now, on the basis of Ext-2, the fardbayan of P.W.9, the FIR of the case Ext- 3 was drawn up and P.W.11 S.I.Md. Zamiruddin who was the officer-in-charge of Harsidhi police station took up the investigation. 5. It may appear from the evidence of P.W.11 that before he had set out to investigate the case, he had received an information on the 31st of May, 1986 at about 23 hours, i.e., 11 P.M. from a Chaukidar that a dead body had been found and accordingly, he made an entry of the above fact in station diary entry no. 341 dated 30.5.1986. He, thereafter, started from the - 4 - police station for verifying the correctness of the information and came directly to village Mahmadpur Majhaulia and searched for P.W.9, Dhorha Sahani whose fardbayan was recorded by him on the 31st of May, 1986 at 8 A.M. While investigating the case, he recorded the statements of various witnesses and prepared the inquest report after holding inquest on the dead body. The inquest report had been marked Ext-4 in the case. He sent the dead body for postmortem examination and after close of the investigation, sent up the accused persons for trial. This is how the appellants were put on trial and were ultimately convicted. 6. The defence of the appellants, as appears to us after considering the evidence of witnesses examined during the trial, was that they had falsely been implicated as appellant, Rupan Sahani had purchased a land from one Khublal Sahani who was the son of one of the brothers of the informant Dhorha Sahani and it further appears that for that particular land, some dispute had arisen between the appellant Rupan Sahani and P.W.5 Kanchan Sahani which fact appears stated by P.W.5 in Paragraph-6 of his evidence. It has been suggested to most of the witnesses that they had come forward to dispose falsely in the case at the behest of the informant Dhorha Sahani. - 5 - 7. In support of the charges, the prosecution examined as many as 11 witnesses, out of whom P.W.4 Sukan Sahni and P.W.6 Mahipat Sahni were tendered for cross-examination. P.W.8 Paldhari Manjhi was declared hostile on some facts. Other witnesses who came to support the charges, made statements on various facets of the case. We will consider their evidence individually while scrutinizing the arguments advanced before us by both the sides. 8. The defence also examined two witnesses D.W.1 Uma Kant Sharan and D.W.2 Bhairaw Pd. Nirala, on fact, as regards the situation of the village of the appellants and that of the deceased who was a patient of epilepsy and had died on that account. This evidence has been given by D.W.1. D.W.2 Bhairaw Pd. Nirala has given evidence to contradict the allegation of the prosecution that the deceased Vakil Sahani was present or seen at village Mahmadpur Majhaulia on the 29th of May, 1986. 9. After considering the evidence of both the parties, the impugned judgement was passed by the learned trial court. 10. Sri Neeraj Kumar @ Sanidh, the learned Amicus Curiae appointed on behalf of the appellants, has submitted that it being a case of circumstantial - 6 - evidence, neither any motive was alleged nor the same has been proved so as to convince the court that the appellants could be impelled on account of that particular fact or reason to commit the murder of Vakil Sahani. The whole of the evidence does not contain a single fact indicating that the appellants could be nursing any ill-will towards the deceased for which he could be killed. It was contended that some of the witnesses like P.W.1 Champa Devi and others have stated that the deceased had a good relationship with the accused persons and they used to talk together though the deceased never went to an outside place with any of the appellants. It was contended that fishing by the appellants with the deceased in the river could not be turmed as an offence. No evidence appears led by the prosecution as to how and who had really killed the deceased by throttling him. It was contended that the allegation of being forcibly taken away, appears disbelieved by the learned trial Judge who acquitted the appellants for the charge under Section 364 of the IPC and as regards the evidence on the deceased being last seen, this could be too weak a circumstance to base conviction upon. It was contended that the deceased went missing from the evening of 29th of May, 1986 and his dead body was found in next morning by - 7 - P.W.5 Kanchan Sahani and others but their conduct appears completely in-consistent with that of an ordinary human being as none of the witnesses who saw the dead body, informed any one even an ordinary person in the village by telling that they had at least seen the dead body which belonged to the deceased. It was contended that there could be many reasons for which the deceased might have been killed. 11. Susri Shashi Bala Verma, learned Additional Public Prosecutor has resisted the submission tooth and nail and has submitted that consistency was there in the evidence of witnesses on the point that the deceased was seen last with the appellants and that some of them had taken him away on the pretext of going into the river for fishing. The deceased went missing and as per the prosecution, the appellants were giving a false explanation that the deceased had gone to his village home. Besides, the appellants took a false plea that the deceased had an epileptic attack and on that account he fell into the river and was drowned to death. This plea appears completely ruled out by the evidence of P.W.10 Dr. R.P.Sah and this clearly indicates the culpability of the appellants. 12. Before we take up the arguments of learned counsel for the parties, we may point out that while - 8 - passing the impugned judgement, the learned trial Judge had doubted the very fact that the other persons had come with the appellants Rupan Sahani to take away the deceased (Vakil Sahani) in view of the contradictory evidence of P.W.1 and P.W.7. P.W.1 has stated in her evidence that the accused persons came at about 2 P.M. and took away the deceased Vakil Sahni with them, who was initially not ready to go with them but was taken away forcibly. P.W.1 stated that the deceased was staying in her house since last 22 days or so and had been taken away by the accused persons. P.W.7 Bachu Sahani who happens to be the son of the informant has stated that the deceased was taken away from his house. This could be the reason for the learned trial Judge to hold that the fact of being taken away was doubtful and probably this could be the reason that the accused persons were acquitted under Section 364 of the IPC. As regards the informant P.W.9 he has stated in paragraph 11 of his evidence that his father told him that the accused persons had taken the deceased with them. This line of evidence of P.W.9 in his cross-examination could be the reason for holding the informant as not an eye witness to the real taking away of the deceased by the appellants. 13. It appears from the evidence of other - 9 - witnesses, like, P.W.2 Balli Sahani, P.W.3 Ram Autar Sahani and P.W.5 Kanchan Sahani that the deceased was seen fishing in the river with appellant Rupan Sahni in one boat. The informant has stated that when the deceased did not return from the river with the accused, he made an enquiry from the appellants specially, appellant Rupan Sahani, who stated that the deceased had gone to his village home at village Parsaunia. The informant stated that he was not satisfied from the reply of the accused persons and, as such, he sent his son so as to ascertaining the correctness of the statements. All witnesses have stated that the accused stated before each of them that the deceased went away to his village from the river itself and, as such, he did not return with any of them. The learned trial Judge appears raising an inference on this account as also on account of the fact that the defence had suggested to witnesses that the deceased had been suffering from epilepsy and had epileptic attack and he died on that account. The learned trial Judge has held that because the deceased was in the company of the appellants and their explanation was false, as such, they could be held to be the authors of the offence. We have some reservations to uphold the findings. - 10 - 14. It is well settled that the evidence of last seen is not conclusive in nature rather it is the weakest form of evidence and it is always unsafe to convict an accused on that evidence without seeking further assurance from some convincing materials. There are various reasons for not accepting the findings of the learned trial court. One such reason is that there is evidence amply available to us on the record that whenever the deceased used to be at the village of the informant, he used to have a good relationship with the accused. This appears stated by P.W.1 in Paragraph-9 and this also appears stated by P.W.9, the informant himself in paragraph 8. None of the witnesses have stated that the accused persons were nursing any ill- will against the deceased for any particular reason so as to killing him. 15. We have already held that the learned trial judge disbelieved the evidence of witness that the deceased was taken away by the appellant and as such, acquitted them of the charge u/S 364 I.P.C. The story of the deceased being seen last with the appellants is alleged only after he had been taken away by the appellants. The deceased was seen fishing with appellant, Rupan Sahni after being taken away. If the court below disbelieved the story of the deceased being - 11 - taken away from the house of P.W.1 then what was the fact on which the finding that the deceased was found in company of the appellants could be recorded. Having disbelieved this very initial story that the deceased was taken away by the appellants, it was not proper for the court below to connect them on the evidence of last seen as it stood improbabilised due to the story of deceased being taken away was rejected by the learned trial court. We find this additional reasoning not to accept the evidence of last seen. 16. The learned trial Judge held that motive was not required to be alleged and proved in a case where the evidence was sufficiently available. This might be true in cases in which the evidence is of direct nature. Here in the present case, the evidence is of circumstantial nature and no one really appears telling the court that he had seen any of the appellants doing an act so as to killing the deceased. In such a background, it was the ordinary expectation of the learned trial Judge to be inquisitive as to why the appellants who had otherwise cordial relationship with the deceased would murder him. It is not that the appellants had cordial relationship with the deceased only. We find from the evidence of P.W.1 Champa Devi who happened to be the wife of the younger brother of - 12 - the informant that the son of the younger brother of her husband had migrated from the village to that of his marriage and he has sold some lands to appellant Rupan Sahani. Mahipat Sahani(P.W.6) was the Pattidar of appellant Rupan Sahani and there was some dispute as also some litigation in between Mahipat Sahani and appellant Rupan Sahani. Not only that, we may find from the evidence of P.W.5 Kanchan Sahani from Paragraphs 4, 5 and 6 that he had filed a criminal case against appellants Rupan Sahani, Hira Lal Sahani and Moti Lal Sahani and that criminal case was in respect of a Marpit which had occurred in respect of the possession over a land which had been purchased by appellant Rupan Sahani from others. Thus, what appears to us, is that the relationship between the witnesses and appellant Rupan Sahani was not cordial. There was some ill-will between the two sides and a criminal case was also pending. Thus, in the above background, what we find is that the appellant did not have any motive to commit the murder of the deceased, Vakil Sahani. However, on the other hand, the witnesses who appear closely connected to the informant might have some motive for the above reason of land dispute between them and appellant, Rupan Sahani that they could be coming forward to make the statements against the appellants. - 13 - 17. It is true that the defence had taken a completely false plea that the deceased who was suffering from epilepsy could have died on account of drowning in water when he had fallen down after having an epileptic attack. It is too well known to be pointed out that the falsity of the defence plea could not take the place of proof of the charges. It is the duty of the prosecution to prove the charges to the hilt by acceptable evidence. The plea appears completely false specially, when one considers the evidence of P.W.10 Dr. R.P.Sah who found that the deceased had been murdered by strangulation. The time of death according to P.W.10 was within 72 hours of the holding of the postmortem examination. Simply because the defence has taken a completely false plea, the onus of the prosecution could not be shifted upon the appellants and thereby they could not be held guilty of committing the offence. 18. Vakil Sahani was killed. There could not be doubt about it, but there is absolute absence of evidence on the record of the case indicating as to who could have killed him. So far as the credibility of the witnesses is concerned, we could point out that the dead body was found as may appear from the very fardbeyan itself in the morning of the next day of the - 14 - occurrence, i.e., the 30th of May, 1986. This appears testified by P.W.11 S.I. Md. Zamiruddin. Further evidence on this fact comes from P.W.5 Kanchan Sahani as also from the informant and other witnesses. P.W.5 Kanchan Sahani has stated that he had seen the deadbody floating in the river on the next day. In cross- examination, the witness stated in paragraph-9 that after having seen the deadbody, he gave his statement before the police on the same day, which fact according to the evidence available on record, appears completely false because the fardbayan was recorded on the 31st of May, 1986. What we want to point out is that if at all the witnesses had seen the dead body on the next day of the occurrence which was the 30th of May, 1986, there does not appear any attempt made by any of them to lodge a report about the murder of Vakil Sahani even against an unknown person. This is highlighted more by the evidence of P.W.11 Md. Zamiruddin who stated that a report was received by him through the Chaukidar that a dead body was found in the river, that report was entered by him in station diary entry no.341 dated 30th of May, 1986 at 11 P.M. whereafter he started from the police station and came straightway through village Mahmadpur Majhaulia for verifying the information and to search for the informant. The report was lodged on - 15 - the 31st of May, 1986 at about 8 A.M., i.e., after about 24 hours or so of the finding of the dead body. During these long hours in between 30th of May and 31st of May, 1986 neither the informant nor any of his witnesses who subsequently came to support the charges, took the trouble of informing the police about the incident. The informant claims that he suspected the appellants of having killed his Bhagina and he appears making all efforts, not only to trace him out but also to go to the root of the truth. He, as such, was sending his son P.W.7 Bachchu Sahani to village Parsaunia for verifying as to whether the deceased had reached his village and he was informed by P.W.7 that the deceased had not reached his house. But, still he was maintaining a stony silence until and unless the police was at his door-steps in lodging the report. The conduct of the informant and the witnesses, on account of the above reasons appears to us such as not to place reliance upon their evidence. 19. While we were hearing the present appeal, we had an impression as if the informant and his witnesses had gone into a huddle after having found the dead body of Vakil Sahani and were probably pooling up the support of the witnesses so as to foisting a case upon the appellants. This could be the reason that the - 16 - fardbeyan was lodged after about 24 hours of the dead body being found to rope in the appellants by framing a story that the appellants were last seen with the deceased. We find no good reason to sustain the order of conviction which was passed by the learned trial court against the appellants and, as such, we cannot uphold the sentences as well. We are of the opinion that the appellants deserve to be acquitted after being given the benefit of doubt. We extend that benefit to them and acquit them of the charges under Sections 302/34 and 201 of the IPC. We set aside the sentences passed on each of the appellants on both the counts by allowing the present appeal. The appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds. Patna High Court, Dated, the 13th of April, 2010, Brajesh Kumar/AFR ( Dharnidhar Jha, J. ) ( Akhilesh Chandra,J. )