IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No. 685 of 2005 ***** Against the order conviction dated 02.09.2005 and order of sentence dated 06.09.2005 in Sessions Trial No. 163 of 1995/Trial No. 146 of 2000 passed by learned Additional Sessions Judge, Fast Track Court No3, Purnia. ***** Narain Yadav, Son of Rasik Lal Yadav, Resident of Village Masuria, P.S.-Sarsi, District- Purnia. …..Appellant. Versus The State of Bihar …..Opposite Party. Appearance For the Appellant : Mr. B.N.P. Singh, Advocate. Mr. Anil Kumar Singh, Advocate. Mr. Bimal Kumar-I, Advocate. For the State : Mr. Ashwini Kumar Sinha, APP ***** CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA And HONOURABLE MR. JUSTICE DINESH KUMAR SINGH S.K. Sharma, Dinesh Kumar Singh, J.J. The sole appellant has challenged the order of conviction dated 02.09.2005 and order of sentence dated 06.09.2005 in Sessions Trial No. 163 of 1995/Trial No. 146 of 2000 passed by learned Additional Sessions Judge, Fast Track Court No.3, Purnia whereby and whereunder the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced for imprisonment for life along with fine of Rs. 5000/- and in default of payment of fine further sentenced to undergo imprisonment for one year and the period of custody already undergone was Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 2 directed to be set off. 2. The prosecution case, as per the fardbeyan of P.W.2, Putul Devi, wife of the deceased late Jiwachh Lal Mahto, recorded by P.W. 15 S.I. Brajesh Singh of Banmankhi (Sarsi) Police Station, the I.O. of this case on 01.03.1994 at 11 a.m. at Village Masuriya is to the effect that the informant’s deceased husband was working under one Binod Babu (not examined) and used to guard the fish in the tank situated in Village Jogiya. On 28.02.1994, the informant’s husband after taking meals, went in the company of Sobhit lal Biswas (P.W.11) and Devendra Singh (not examined) in order to guard the tank. But in the next morning, the informant came to know that her husband has been killed and when the informant went near the Masuriya canal, she saw that neck of her husband was chopped off. She also found the blood stains on the wheat crop near his body. It appeared to the informant that her husband was murdered by sharp cutting weapon. The further case of the informant is that about a month earlier while guarding the tank, her husband seized one fishing net which was being demanded by Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 3 Narain Yadav, the appellant, Bholi Mukhiya @ Bhola Mukhiya (acquitted) and Sattan Mandal, but it was not given to them by the husband of the informant rather he handed over the fishing net to the owner and on this the accused persons had threatened to kill the informant’s husband if he did not return back the fishing net. Hence, the informant was convinced that her husband has been killed by the three accused persons. Kishan Lal Mandal and Haklan Chaurasiya were F.I.R. named witnesses, but both have not been examined. Consequently Banmankhi (Sarsi) P.S. Case No. 51 of 1994 was registered under Section 302/34 of the Indian Penal Code against three persons Narain Yadav, Bholiya @ Bhola Mukhiya and Sattan Mandal. Police investigated the case and submitted charge sheet against all the three accused persons. But it appears that only Narain Yadav and Bholiya @ Bhola Mukhiya were put on trial and consequently after the case being committed to the Court of Sessions, the two accused were put on trial. 3. The prosecution in order to substantiate its case examined 15 witnesses, Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 4 of which P.W.1 Agaru Lal Yadav is a hearsay witness, P.W.2 Putul Devi is the informant and wife of the deceased. P.W.3 Mohan Prasad Yadav is a formal witness to the inquest, P.W.7 Jawahar Singh, P.W.10 Nirpendra Yadav and P.W.13 Chandra Shekhar Kumar Singh have been tendered, P.W.9 Lochan Yadav is a seizure list witness but has not supported the seizure. P.W.4 Sita Ram Yadav, P.W.6 Sita Ram Chaurasiya and P.W.9 Lochan Yadav, the seizure list witnesses have been declared hostile. P.W.5 Ayodhi Yadav is a hearsay witness, P.W.8 is Dr. B.K. Singh who conducted the post-mortem examination, P.W.11 Sobit Lal Biswas was also the employee of the same land lord i.e. Mr. Binod Babu and was sleeping with the deceased on the fateful night, P.W.12 Shatrughan Chaurasiya is a hearsay witness, who has not supported the prosecution case, P.W.14 Mukti Nath Gosai has also not supported the prosecution case but has not been declared hostile, P.W.15 Brajesh Singh is the ASI and I.O. of the case. 4. The defence has not examined any witness. 5. It is apparent from the Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 5 paragraphs 25 and 26 of the judgment that there is no direct evidence in the case and the present appellant has been convicted on the basis of circumstantial evidence, whereas the other accused Bholi @ Bhola Mukhiya was acquitted. 6. Now, this Court has to reappraise the evidence to see whether the circumstantial evidence, on the basis of which the conviction has been arrived at are conclusive in nature, pointing towards the guilt of the appellant or whether the chain of circumstances are complete. 7. Admittedly, there is no eye witness to the occurrence. The circumstances which have been put forward by the prosecution are : (i)the fishing net of the appellant and others, was seized by the deceased and was not returned for which threat to life was given, (ii)the appellants and others committed the theft of fish, from the Jogiya Pokhra tank situated in the village Masuriya, (iii)the blood stained Loongi was recovered from the house of the appellant in Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 6 pursuance to the search by sniffer dog, and (iv) that the victim was seen in the company of the appellant and other accused, in the previous night. 8. Before examining the circumstances and evidences led for proving those circumstances by the prosecution, we would like to elaborate the basic principles on the basis of which conviction could be arrived at, in a case of circumstantial evidence. “It has been consistently laid down by this Court that when a case rests only on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn, have to be proved beyond Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 7 reasonable doubt and have to be shown to be closely connected with the principle fact sought to be inferred from those circumstances”. 9. In the case of Joseph Vrs. State of Kerala reported in (2000) 5 SCC 197, the Apex Court explained under what circumstances conviction can be based purely on circumstantial evidence. It is observed that: “It is often stated that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard-and-fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 8 the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of accused”. 10. The Apex Court in the Case of Padala Veera Reddy Vrs. State of Andhra Pradesh reported in (1989)2 SCC 706 observed that when a case rests on circumstantial evidence following test must be satisfied. Para-10 reads as follows: “(i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii)those circumstances should be of a Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 9 definite tendency unerringly pointing towards guilt of the accused; (iii)the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (iv)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence”. 11. Similar view was expressed by the Apex Court in the case of C.Chenga Reddy Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 10 Vrs. State of Andhra Pradesh reported in (1996)10 SCC 193. 12. It has also been further held in the case of State of UP Vrs. Ashok Kumar Srivastava reported in (1992)2 SCC Page 86 para-9, which reads as follows: “great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted.” 13. It was also pointed out in para- 9 of the said judgment: “the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of (“the”) guilt”. 14. All the aforesaid judgments on the circumstantial evidence were considered Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 11 by the Apex Court in the Case of Satni Bai Vrs. The State of Madhya Pradesh in (2010)2 SCC 646, Para-16 of the same reads as follows: “The principles that would emerge from these decisions is that conviction can be based solely on circumstantial evidence, but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court”. 15. Hence, there is no doubt that the conviction can be based on circumstantial evidence but now we have to test the circumstances on the test formulated by the Apex Court in the above mentioned judgments. 16. The circumstances, like, the appellant and others having committed theft of the fish by laying fishing net in the tank and the fishing net being seized and not being returned by the deceased, as a result of which threat to life was given, have not been suggested by the P.W.1. P.Ws. 4, 5, 6 and 12, whereas P.W.2, the informant, has Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 12 suggested this circumstance, which she came to know from her husband but in para-5 of her evidence she has stated that she did not herself see the appellant and others fishing nor she could see the appellant fighting with her husband and giving threatening, as suggested by her in para-8 of the evidence. The fact of commission of theft of fish, by the accused persons was also suggested by P.W.11 Sobit Las Biswas in para-4 of his evidence but in para-8 he has stated that his statement was not recorded by the police under Section 161 of the Code of Criminal Procedure, which makes his evidence irrelevant. Though, P.W.15 in para-11 to 14 has stated that P.Ws. 4, 5, 12 and 14 suggested that the accused used to commit theft by fishing in the tank but all his witnesses, during trial, have denied to have made any such statement. Hence, this circumstance of committing theft of fish from the tank has not been proved by the prosecution. So far as, threat to life being given by the accused persons is concerned that has also not been proved and except P.W.2, none have supported the same. Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 13 17. P.W.11’s evidence is not admissible since his statement was not recorded under Section 161 of the Code of Criminal Procedure. 18. So far as the allegation of committing theft of the torch, by this appellant, is concerned, this fact has only been suggested by P.W.2 during the trial which is not mentioned in the fardbeyan and no evidence has been laid to prove the same nor it gets apparent from the evidence of P.W.15, the I.O., that the informant P.W.2 ever suggested this circumstance to the I.O. 19. So far as the circumstances of seizure of the blood stained Loongi from the house of this appellant is concerned, it appears that it was seized by ASI Kunj Bihari Prasad who took the assistance of the sniffer dog for such seizure, as has been admitted by P.W.15 in para-9 of his deposition, but the said Kunj Bihari Prasad has not been examined. The witnesses to the seizure were P.W.9 Lochan Yadav and P.W.10 Nirpendra Yadav but P.W.9 has suggested that no recovery was made in his presence and he has been declared hostile while P.W.10 has been tendered. Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 14 Moreover, the seized blood stained Loongi was never produced during trial nor sent for the Forensic Test, hence, in spite of the fact that the I.O. P.W.15 talks about the seizure of the same, it cannot be taken to be conclusively proved circumstance against the appellant. P.W.15, the I.O. admits in his evidence that the blood stained earth was seized and a seizure list of the same was prepared but the seizure list witnesses Satendra Kumar Malik and Agalm Lal Yadav were not examined, nor it appears from the materials on record that the blood stained earth was sent for chemical examination. 20. Fourth circumstance was that the victim was last seen in the company of the accused particularly the appellant. As per the fardbeyan of P.W.2, the victim went in the company of Devendra (the other servant of the owner Binod Singh) and Sobit Lal Biswas (P.W.11) but Devendra Singh has not been examined. So far as P.W.11 is concerned, he admits that he had gone with the victim and also admits that he slept along with the deceased, but the next morning he saw the dead body. But in view of his admission in Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 15 para-8 that his statement under Section 161 of the Code of Criminal Procedure was not recorded, his evidence is of no consequence and help to the prosecution. This evidence of P.Ws.2 and 11, does not get corroborated with the evidence of P.W.15, as P.W.15 has not admitted that it was conveyed to him that the victim was lastly seen in the company of the others. Hence, this circumstance is also not proved by the prosecution and considering the circumstantial evidence on the touchstone of the test prescribed by the Apex Court, we find that the chain of circumstances are not complete and the circumstances does not indicate conclusively towards the guilt of the accused. 21. The other circumstance raised by the learned Counsel for the appellant, is that the circumstances of committing theft of fish from the tank, giving threats, recovery of blood stained Loongi from the house of the appellant, the accused have not been confronted with these circumstances during statement under Section 313 of the Code of Criminal Procedure. 22. In this connection reliance has Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 16 been placed upon the judgment in case of Shaikh Maqsood Vrs. The State of Maharashtra (2009)6 SCC 583 and Ranvir Yadav Vrs. The State of Bihar reported in (2009)6 SCC, 595 where it has been observed that: „The purpose of Section 313 of the Code is set out in its opening words – „for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him‟. 23. In the case of Hate Singh Bhagat Singh Vrs. State of Madhya Bharat reported in 1953, SCC 468 it has been observed that: „the statements of the accused persons recorded under Section 313 of the Code „are among the most important matters to be considered at the trial‟. Para-8 of this judgment reads as follows: “the statements of the accused recorded by the Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 17 Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box (and that) they have to be received in evidence and treated as evidence and be duly considered at the trial.” 24. The Apex Court in the case of Ranvir Yadav (supra) held: “the position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there”. 25. Paragraph 13 and 14 in the Case of Ranvir Yadav (supra), the Apex Court observed as follows: “The object of examination under this Section is to give the accused an opportunity to explain the Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 18 case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus”. “The word „generally‟ in Sub-Section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 19 which an explanation is needed. The whole object of the Section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused‟s failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 20 as he desires to give”. 26. On perusal of the statements made under Section 313 of the Cr.P.C., we are convinced that the circumstances of previously committing theft by laying fishing net in the tank, life threatenings given for not returning the fishing net, the recovery of the blood stained Loongi were the circumstances which the appellant was not confronted with, hence, it has definitely prejudiced his case. 27. The other contention of the learned Counsel for the appellant is that the I.O. in para 1 and 18 has admitted that he started the investigation on the basis of Sanha entry made, but the same was not exhibited and the I.O. started making entry in the case diary and thereafter he reached the place of occurrence and recorded the fardbeyan and then the First Information Report was registered. 28. Hence, it is submitted that the First Information Report is not admissible as it is hit by Section 162 of the Code of Criminal Procedure in view of the admission of the I.O., that he started making entry in Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 21 the case diary on the basis of Sanha and subsequently recorded the fardbeyan. 29. It has been held by the Apex Court in the case of State of Andhra Pradesh Vrs. Punati Ramalu, AIR 1993 SC 2644 that the I.O. deliberately not recording FIR after receipt of information of cognizable offence, registering the complaint as FIR after reaching the spot and after due, deliberate consideration and discussion, such complaint cannot be treated as FIR. It would be the statement made during investigation and hit by Section 162 Cr.P.C. In the present case, the evidence of the I.O. indicating that he started writing the case diary on the basis of the Sanha, meant that the Sanha was the first information of the occurrence lodged at the police station and it should have been treated as FIR in this case, but the same has been withheld for reasons best known to the prosecution. Subsequently after consultation and deliberation some other prosecution story was concocted, on the basis of which an adverse inference can easily be drawn, which would definitely go in favour of the accused and against the prosecution. Patna High Court CR. APP (DB) No.685 of 2005 dt.25-11-2011 22 30. On the basis of the discussions made above we find that the learned trial court has not appraised the evidence in true perspective, as the prosecution has miserably failed to establish the chain of circumstances and thereby failed to prove the case beyond shadow of reasonable doubt. 31. In the result, judgment of conviction and order of sentence are set aside. The appellant is discharged from the liability of his bail bonds. Let the appellant be released forthwith if not required in any other case. Accordingly, the appeal is allowed. Patna High Court, Patna Dated the 25th of November, 2011 N.A.F.R. kksinha/- (Shyam Kishore Sharma, J.) (Dinesh Kumar Singh, J.)