CRIMINAL APPEAL No. 315 OF 2003(D.B.) ---------- Against the judgment of conviction dated 09.05.2003 and order of sentence dated 12.05.2003 passed by Sri Ram Pravesh Sharma, Additional Sessions Judge,5th, Gaya, in Sessions Trial No. 14 of 1999/ 71 of 1999(S.J.) ---------- Amit Kumar, Son of Budhmal Saraf, resident of Village- Siriha Ghat, Police Station- Kotwali, District- Gaya...................Appellant. -Versus- The State of Bihar............................................................Respondent. ---------- For the Appellant : Mrs. Soni Srivastava, Amicus curiae. For the State : Ms. Shashi Bala Verma, A.P.P. ----------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE DINESH KUMAR SINGH ------------ D.K.Singh,J The present appeal has been filed by the sole appellant, above-named, against the judgment of conviction dated 09.05.2003 and order of sentence dated 12.05.2003 passed by Sri Ram Pravesh Sharma, learned Additional Sessions Judge 5th, Gaya, in Sessions Trial No. 14 of 1999/71 of 1999 arising out of Chandauti P.S. Case No. 145 of 1997 whereby the sole appellant has been convicted under Section 302/34 as well as 201 of the Indian Penal Code and thereby sentenced to undergo under Sections 302/34 of the Indian Penal Code, rigorous imprisonment for life and to pay fine of Rs. 15,000/- and in 2 default of payment of fine, the convict is further sentenced to undergo rigorous imprisonment for one year whereas for offence under Section 201 of the Indian Penal Code the convict is sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 5,000/-and in default of payment of fine to undergo rigorous imprisonment for four months. Though both the sentences were directed to run concurrently. It was further directed by the learned trial court that the fine if deposited then the same will be paid to parents of the victim girl, Archana Kumari and if the parents will not be alive then to legal heirs of Archana Kumari, the deceased. 2. The prosecution case starts with the fardbeyan of Chaukidar Rajendra Paswan recorded by S.I., S. N. Jha of Chakand O.P. under Chandauti Police Station of Gaya District on 11.10.1997 at 8.30 A.M. to the effect that the informant is the Chaukidar of Village- Bitho Sharif(Pakki Sadak) under Chandauti Police Station in the Gaya District. On 11.10.1997 at 6.00 A.M. some of the Villagers went in the field of the village to ease out and found the dead 3 body of a girl on the road side then they informed the villagers after coming to the village. Then the informant went to the place of the occurrence and found one dead body of 14-15 years old girl on Gaya-Patna road on the western side and also found black mark on the neck, cut injury on the chin and sign of bleeding on the private part. In the meantime, others Chaukidars, namely, Raja Ram, Indradeo Paswan and Baldeo Paswan came to the place of occurrence and they also saw the dead body. Then the informant deputed the other Chaukidar to watch the dead body and went to Chakand O.P. for giving information then from Chakand O.P. two police officials came and recorded the statement of the informant. In the meantime, so many people gathered near the place of occurrence but none of them could identify the dead body but it appeared that the rape might have been committed and then with help of the rope and sharp cutting weapon, the victim girl has been killed and the dead body has been thrown. Though, no sign of assault and blood mark was found at the place where dead body was found. Hence, it was suspected that the victim girl was killed somewhere else and the dead body was thrown at the place of occurrence. 4 3. On the basis of the fardbeyan, Chandauti P.S. Case No. 145 of 1997 was registered against unknown under Sections 302 and 201 of the Indian Penal Code. 4. The Investigating Agency after completing the investigation, submitted charge sheet under Sections 302/201 of the Indian Penal Code against Mintu Kumar and Amit Kumar(appellant) whereas the investigation was kept pending against the other accused persons. 5. Consequently, cognizance was taken and the case was committed to the court of sessions and charges were framed under Sections 302/34 and 201 of the Indian Penal Code, since the accused pleaded not guilty. 6. The prosecution in order to substantiate their case examined 10 witnesses of which P.W. 1 is Vijay Prasad, brother of the deceased and he is a hear-say witness who came to know about the occurrence from P.W. 3. P.W. 2 is Ritesh Kumar, nephew of the deceased. He is also a hear-say witness. P.W. 3 is Sharwan Kumar Lohani. He is only witness of last seen. On 10.10.1997 at 10.P.M. in the night this witness saw the victim Archana Kumari travelling in a 5 Maruti Van in the company of Pinki Kumari(P.W.4), the present appellant Amit Kumar and Manoj Kumar. P.W. 4 is Pinki Kumari who is the friend of the victim, Archana Kumari, and has denied to have been travelling with the victim in a Maruti Van and has not supported the prosecution case and has been declared hostile. P.W. 5 is Chameli Devi who has not seen the occurrence and she is hear- say witness and has admitted that the victim was not mentally sound and on the date of the occurrence the victim girl came to the house of this witness. P.W. 6 is Pradeep Kumar Keshari and also is a hear-say witness who came to know about the disappearance of the victim through Vijay Prasad, the brother of the victim and has identified the clothes of the victim girl. P.W. 7 is Rajendra Paswan. He is the informant and has proved the fardbeyan and has stated that he has not seen the occurrence. P.W. 8 is Rakesh Kumar and has no knowledge about the occurrence and he is also hear say witness as he came to know about the occurrence through the brother of the deceased and has been declared hostile. P.W. 9 is Dr. Arvind Prasad who has proved the signature on the post mortem report of Dr. Kapildeo Prasad who conducted the post mortem of the deceased but 6 since he died he could not be examined. P.W. 10 is Shashi Nath Jha who has proved the signature of Lileshwar Mahto who wrote the fardbeyan and also his signature on the fardbeyan which have been marked as Exhibits 3 and 3/1 and also proved the handwriting of Paras Singh and in whose handwriting formal F.I.R. was prepared and there is signature of Rajendra Tripathi, officer-in- charge that has been marked as Exhibits-3/2 and 3/3 and has categorically stated that none has identified the dead body. 7. The prosecution produced six documentary evidences. They are the signature of the witness on the fardbeyan,(Exhibit-1), Post mortem report,(Exhibit-2), Fardbeyan,( Exhibit- 3), signature of the witness, Shashi Nath Jha on the fardbeyan,(Exhibit-3/1),the writings on formal F.I.R.(Exhibit-3/2) and the signature of the officer-in-charge on the fardbeyan as Exhibit-3/3. The defence has not examined any witness. 8. The trial court acquitted the accused Mintu as the trial court found no evidence against him whereas convicted the present appellant on the basis of evidence of P. Ws. 1,2 and 3. 7 9. Learned counsel for the appellant Smt. Soni Srivastava who assisted this Court as amicus curie has attacked finding of the trial court on the ground that the prosecution has not proved the case beyond the reasonable doubt, moreover, P. Ws. 1 and 2 are hearsay witnesses and only P.W.3 is the witness of last seen of this appellant in the company of the victim in a Maruti Van on 10.10.1997 at 10.00 P.M. alongwith Pinki Kumari(P.W. 4) and Manoj Kumar, who is not reliable. Learned A.P.P. supported the judgment of conviction on the ground that it is a case of circumstantial evidence as P.W. 3 has seen the victim in the company of appellant and two others moreover P. Ws. 1 and 2 have also supported the prosecution case though as hear-say witness. Now this Court has to see two things: firstly, Whether the circumstantial evidence of last seen is enough of upholding the conviction and secondly, as to whether the prosecution has proved the case beyond the shadow of reasonable doubt. Admittedly, there is no eye witness to the entire occurrence. The brother of the deceased and the nephew of the deceased have been 8 examined as P.Ws.1 and 2 and both are hear-say witnesses. As per P.W.1 on 10.10.1997 at 6.00 P.M. the victim sister of P.W. 1 left the house to watch the images of Idol Durga since it was the Durga Puja and did not return whereas P.W. 2 the nephew of the deceased, has deposed that the victim Archana Kumari went in the company of Pinki Kumari(P.W.4)for watching Durga Puja festival and did not return till 12.00 P.M. in the night. It is relevant to state here that both these two witnesses have not claimed to have seen the victim in the company of the appellant. P.W. 1 has said that P.W. 3 conveyed that he saw the victim Archana Kumari in the company of Pinki Kumari, Manoj Kumar and this appellant in a Maruti Van but the conduct of P.W. 1 appears to be most unreasonable that since he was brother and the victim left the house on 10.10.1997 at 6.00 P.M. but did not return till 12.00 P.M. and no information was given to any authority, nor any step was taken for locating the victim. Muchless, no enquiry was made from (P.W. 4), Pinki Kumari and the dead body was recovered on 11.10.1997 at 6.00 A. M. in the morning and when none identified the dead body then the dead body was disposed of and the F.I.R. was lodged against 9 unknown. Hence the evidence of P.W.1 appears to be not reliable since he deposed as hear-say to the circumstance of last seen. 10. So far as the P.W. 2 is concerned, he is resident of different place and he is nephew of the victim and has deposed that the victim left the house in the company of Pinki Kumari which is contrary to the evidence of P.W.1 and moreover, he also came to know about Archana Kumari, the victim, in the company of the appellant, Pinki Kumari and Manoj Kumar in a Maruti Van from P.W.3. Pinki Kumari has been examined as P.W.4 and has been declared hostile as she has not supported the prosecution version rather she denied to have been moving in the company of Archana Kumari in a Maruti Van. Moreover, Pinki Kumari has not been charge sheeted rather has been examined as prosecution witness. Hence, P.W. 2, admittedly, is also only a hear-say witness of last seen. 11. The last seen evidence is the most weak kind of circumstantial evidence and except that there is no evidence in the present case as it is well settled law that in the case of circumstantial evidence, the prosecution must 10 establish different circumstances beyond reasonable doubt and all those circumstances taken together must lead to no other inference except that of the guilt of the accused. To justify an inference of guilt, the circumstances from which such inference is sought to be drawn must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt of the accused. 12. On this point of circumstantial evidence learned counsel for the appellant cited a judgment reported in 2000(1) S.C.C.628 V. Vijay Kumar Vs. State of Kerala with G. Thankappan and ors. Vs. State of Kerala. I find that the ratio of the aforesaid case clearly suggests that the chain of circumstances must be completed and it must lead to no other inference except the guilt of the accused but in the present case the only circumstance is the deposition of P.W. 3 having seen the appellant with others in the company of victim on 10.10.1997 at 10.00 P.M. and no other circumstances. Hence, neither the chain of circumstances is complete nor it leads to only inference with regard to guilt of the appellant. 13. Admittedly, in the present case, the 11 prosecution has relied upon the sole evidence of P.W.3 who has only deposed that he saw the victim Archana Kumari on 10.10.1997 at 10.00 P.M. in a Maruti Van alongwith Manoj Kumar and Pinki Kumari. P.W. 3 in his evidence has admitted that he has not gone to see the dead body but has identified the clothes of victim. P.W. 3 has further stated that Ritesh Kumar(P.W.2)conveyed to him that Archana Kumari is missing and he conveyed to Ritesh Kumar(P.W.2) about Archana Kumari seen in the company of Manoj Kumar and Pinki Kumari and the appellant even then no intimation to the police was given nor any body identified the dead body on 11.10.1997.Moreover, when the dead body was disposed off then P.Ws. 1 and 2 have identified the clothes of Archana Kumari. The conduct of P.W.3 appears to be absolutely unreasonable as he saw Archana Kumari in the company of the accused persons on 10.10.1997 at 10.00 P.M. and he did not bother to inform the family members or even inform any one after getting information on 11.10.1997 through P.W. 2 that Archana Kumari is missing and this P.W. 3 opened his mouth after disposal of the dead body and lodging of the F. I. R. against unknown. Hence the testimony of this witness 12 appears to be absolutely not trustworthy. It is well settled law that in circumstantial evidence case the chain of circumstances must be proved beyond shadow of reasonable doubt because the circumstantial evidences are very weak kind of evidences and only when the chain is complete the conviction can be based on the alleged circumstances. In the present case the only circumstance which has been brought on record is that P.W. 3 saw the victim on 10.10.1997 at 10.00 P.M. in a Maruti Van alongwith the appellant, Manoj and Pinki Kumari and there is no other circumstance. Hence, the conviction on the basis of the sole circumstance which is also not fully established can not be upheld. The principle in a case of last seen the proximity of time between last seen and the ultimate recovery of the dead body has to be very meticulously analysed. In the present case, the P.W. 3 saw the victim on 10.10.1997 at 10.00 P.M. and on 11.10.1997 the dead body was recovered. Moreover, the victim left the house at 6.00 P.M. on 10.10.1997. Hence in the circumstances, the proximity of time is as such which does not fasten the guilt against the appellant particularly when the only circumstance of last 13 seen appears to be absolutely doubtful in view of the unreasonable conduct of P.W.3. The claim of P.W.3 is that he saw the victim in the company of the appellant has not been believed even by the investigating agency as the two other persons who were lastly seen in the company of the victim are Manoj Kumar and Pinki Kumari but the investigating agency even did not bother to chargesheet them meaning thereby the investigating agency has also not believed the version of P.W.3 about the theory of last seen. The other witnesses have not seen the occurrence nor have they deposed any circumstances against the appellant nor the conviction is based on those evidences. Hence, those evidences are not discussed. It is relevant to point out that (P.W. 5), Chameli Devi, has admitted that on the date of the occurrence i.e. 10.10.1997 the victim came to her house and from there she went to see the Idol of Goddess Durga. Hence, evidence of P.W. 5 who has not been declared hostile not only contradicts absolutely the version of P. Ws. 1,2 and 3 but also makes the whole prosecution case absolutely doubtful. P.W. 5 has also admitted that the victim was not mentally sound and when 14 the victim left the house of P.W. 5 then immediately she informed the family members of the victim Archana Kumari. This suggests the unreasonable behaviour of family members of deceased. Though, the doctor, who conducted the post mortem has not been examined since he was dead but his signature was proved by P.W. 9 on the post mortem report and during the post mortem though three injuries have been found but I do not consider to discuss those injuries in view of the fact that the case has not been proved against any accused as to who caused the injury. 14. After perusing the evidences, discussions made above and considering the facts and circumstances of the case, I hold that the prosecution has measurably failed to prove case beyond the reasonable doubt as the trial court has only relied upon the evidences of P. Ws. 1, 2 and 3. Hence, this appeal is allowed and the judgment of conviction dated 09.05.2003 and order of sentence dated 12.05.2003 passed by Sri Ram Pravesh Sharma, Additional Sessions Judge,5th Gaya, in Sessions Trial No. 14 of 199/71 of 1999 is set aside. The appellant, Amit Kumar is acquitted of the charges and he is directed to be released 15 Dharnidhar Jha,J forthwith if he is not otherwise required in any other case or cases. I highly appreciate the assistance rendered by Mrs. Soni Srivastava who appeared as Amicus Curiae on behalf of the appellant. Hence, I recommend for payment of her fee and accordingly, direct the transmission of first and last page of the judgment to High Court Legal Services Committee, Patna though I also appreciate the assistance rendered by the learned A.P.P. Ms. Shashi Bala Verma. (Dinesh Kumar Singh, J) I agree. (Dharnidhar Jha,J) Patna High Court, Patna The 19th March, 2010. U.K./-A.F.R.