Criminal Appeal (SJ) No.205 of 1997 ****** Against the judgment of conviction and order of sentence dated 2nd August, 1997 passed by Sri Bipin Dutta Pathak, learned 2nd Additional Sessions Judge, Aurangabad in Sessions Trial No. 53/1980/19/1983. ****** Dukhani Dhobin, wife of Lakhan Dhobi, resident of village – Igura, P.S. – Aurangabad (M), District – Aurangabad. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** For the Appellant : Mr. Krishna Prasad Singh, Sr. Advocate. Mrs. Meena Singh, Advocate. For the Respondent : Mr. Parmeshwar Mehta, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. The appellant has been convicted for the offence under Section 304 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and further convicted under Section 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years. However, it has been ordered that both the sentences shall run concurrently. 2. The prosecution case is that while the informant P.W. 1 had gone to cut the earth soil along with his daughter-in-law and his son leaving behind his daughter P.W. 2 and son Arjun Nonia, the deceased. The appellant Dukhani Dhobin came and caught hold of Arjun Nonia took him forcibly even on protest by P.W. 2. Then P.W. 2 informed the 2 informant P.W. 1 immediately, and the occurrence alleged to have been taken place at 3:00 P.M on 10.09.1979. The father came and make out a search of Dukhani Dhobin and his son. Informant found the home of Dukhani Dhobin locked and his son missing. On search around the house of Dukhani Dhobin the dead body was recovered from Aahar at about sun set on the same day. The Chaukidar was informed. The Chaukidar came and remained there till night. The First Information Report was lodged on the next day. After lodging of the First Information Report, investigation proceeded and inquest report prepared which is marked as Ext. 3. The post mortem examination of the dead body and the inquest report revealed that the death was due to incised injury in the upper eye lid as well as injury on the anus and rectum. After investigation, charge- sheet was submitted, cognizance was taken and thereafter case was committed to the court of Sessions. The charge was framed. After framing of the charge four witnesses were examined. The witnesses are the informant, daughter of the informant, the doctor who did autopsy on the person of deceased and a formal witness, who has formally proved the inquest report and the formal First Information Report. Ext. 1 is the post-mortem report, Ext. 2 is the First Information Report and Ext. 3 is the inquest report. 3. The trial court taking into consideration the evidence of the witnesses that there was prior enmity and threat by the appellant and further taking into consideration the evidence of P.W. 2 that Dukhani 3 Dhobin caught hold of the deceased and took away Arjun Nonia in spite of the protest by P.W. 2. P.W. 2 disclosed the taking away of Arjun Nonia to the mother. The mother instructed her to inform the father. Then she went to her father to inform. Her father came and began to search then the dead body was found. The trial court after considering the fact and circumstance of the case and evidence held that this is a case of circumstantial evidence which is so strong and sufficient that there is nothing to disbelieve in the evidence and so it cannot be said that Dukhani Dhobin has not committed the crime held that Dukhani Dhobin is guilty of the commission of equitable homicide under the definition of Section 299 of the Indian Penal Code but convicted the appellant under Section 304 of the Indian Penal Code. 4. Learned counsel for the appellant, however, contended that the charge has been framed under Section 302 of the Indian Penal Code. There is no direct evidence about the murder. The case hinges on circumstantial evidence and the principles of circumstantial evidence has not been taken into account and the learned court below did not take into consideration that the chain of circumstance complete pointing out irresistible conclusion of the guilt of the accused leaving no more room for innocence and further 304 of the Indian Penal Code is not at all applicable as there is no evidence for the exception to bring it under Section 304 of the Indian Penal Code. 4 5. Learned counsel for the State, however, submits that it is true that the conviction under Section 304 of the Indian Penal Code may not maintainable but having regard to the fact that there is evidence that the appellant took away the victim and the victim was last seen with the appellant and there is evidence soon thereafter the dead body was recovered and there was prior enmity as threat by the appellant and hence the chain of the circumstance complete for irresistible conclusion about the guilt of the accused. 6. Taking into consideration the respective submissions, I proceed to consider the evidence in the light of submissions. P. W. 2 in her evidence has stated that she was playing with her brother Arjun Nonia the deceased near her house. Dukhani Dhobin came at about 3:00 P.M. Dukhani Dhobin caught hold of the arm of Arjun Nonia and took him towards her house. P. W. 2 protested on which Dukhani Dhobin told that she will also take her then P. W. 2 ceased to protest. P. W. 2 has further stated that her mother came after half an hour and then she disclosed about the occurrence. She went with the mother to the house of Dukhani Dhobin which is just near her house. The house of Dukhani Dhobin was closed. The mother asked P. W. 2 to inform the father. P. W. 2 informed her father. Her father came and made out a search along with Lakhan, Mahgu and Dhari and the dead body was recovered from Ahar at a distance of 10 to 12 Bans in and around the house of Dukhani Dhobin. The dead body was taken out by Mahgu. The dead body was recovered at 5 7:00 P.M. The Chaukidar was informed and he came and watched the dead body for whole night. The motive for the occurrence alleged that prior to the occurrence there was quarrel with Dukhani Dhobin with her Gotani in which the wife of the informant intervene to suggest not to fight among themselves and this infuriated Dukhani Dhobin and she threatened to teach them a lesson so the occurrence. 7. The doctor P. W. 3 who conducted the autopsy on the person of the deceased at 12:25 P.M. on 11.09.1979 found five injuries on the persons of the deceased Arjun Nonia which are as follows:- (a) Incised wound 1” x 1/4" x skin deep on the left upper eye lid. The conjunctive was intact. (b) Incised punctured wound 1” x 1/4" x 3 ½” at the junction of left lower eye lid with face. The inclination of wound being upward medially and down wards. (c) On dissection the left cavernoux cinux was punctured in its interior part with haemotoma in the middle cranial cavity passing directly over the base of the brain the hare of brain. (d) Incised punctured wound 1/2" x 1/4" x 3/4" deep in the right lower eye lid passing upward medially. On dissection the orbital wall was injured in its medial part. (e) Irregular incised wound in the right ischioractal fossa just away from his annus. 6 The doctor opined that the death was caused by injury no. 1 which is more than enough to cause death. The doctor found the time elapsed since death is within 24 hours. Hence, the death must have occurred after 12:25 on 10.09.1979. 8. The prosecution examined four witnesses. P. Ws. 1 (the informant) and 2 (the daughter of the informant) are only the material witness. P. W. 3 is the doctor and P. W. 4 is a formal witness. Hence, only two witnesses P. Ws. 1 and 2 have come to support the prosecution case. The evidence of P. Ws. 1 and 2 have neither been supported by any other witnesses nor corroborated by any other evidence. The occurrence was first reported by P. W. 2 to her mother who has also not been examined. The person who searched the dead body of the deceased and took out the dead body from Ahar i.e. Maghu has not been examined. The Chaukidar who was informed after the recovery of the dead body and who watches the dead body for whole of the night and further the Chaukidar who informed the police in the morning and on the direction of the Daroga Jee took the dead body from place of occurrence to police station has also not been examined. The occurrence took place at 3:00 P.M. The dead body was recovered at 7:00 P.M. on 10.09.1979 but the matter was not reported to the police on 10.09.1979 when it was a month of September and the weather was also not adverse. The distance between the place of occurrence and police station was only three kilometers. It has come in evidence that the Chaukidar was sent in the 7 morning and he came and reported that Daroga Jee has asked to bring the dead body to police station. Then the dead body was taken to the police station where the inquest was prepared. In such circumstance the non-examination of the Investigation Officer has caused serious prejudiced to the defence. The weapon by which the appellant has been assaulted has not been recovered nor any evidence how the injury on the deceased inflicted has been investigated. It appears that every effort was not made to find out who actually committed the offence. Hence, it is apparent that the investigation of the case was not properly done. No effort was made to find out who committed the murder. The investigation done is most perfunctory manner. 9. However, in the facts and circumstances, it is apparent that there is no eye-witness to the occurrence and the case hinges on circumstantial evidence. The circumstance which are apparent from the evidence are (i) Dukhani Dhobin came abusing and took away Arjun Nonia by catching hold of his hand at 3:00 P.M. on 10.09.1979 on her protest of P. W. 2. There is evidence that Dukhani Dhobin was last seen with the deceased Arjun Nonia at 3:00 P.M. (ii) The dead body of the victim Arjun Nonia recovered from Ahar at 7:00 P.M. (iii) The said Ahar was at a distance of 10 to 12 Bans from the house of Dukhani Dhobin (iv) The motive for the occurrence is that prior to the occurrence there was quarrel between Dukhani Dhobin with her Gotani. The wife of the informant intervened 8 to suggest not to fight. This infuriated Dukhani Dhobin and she threat that she will teach a lesson. 10. The question is whether these circumstances are sufficient to bring home the charge and conviction can be recorded. 11. However, the principle enunciated in case of circumstantial evidence is well settled which are as follows:- (a) The circumstance from which the guilt of the accused to be drawn should be fully established, (b) The fact established should be consistent only with the hypothesis of the guilt of the accused (c) The circumstance should be of conclusive nature (d) They should exclude any hypothesis except the guilt of the accused (e) The chain of circumstance be so complete that it only pointed out the guilt of the accused leaving no reasonable ground that the conclusion consistent with the innocence of the accused and must so that within all human probabilities the effect must have been done by the accused. 12. Now applying the principles to the facts and circumstances of the case at hand that the evidence of P. W. 2 Dukhani Dhobin took away Arjun Nonia. There is no corroboration to her evidence. The mother of P. W. 2 who came after the occurrence to whom P. W. 2 disclosed and who went to home of Dukhani Dhobin has not come to depose. The only evidence about the recovery of the dead body is the evidence of P. W. 1. However, the person who recovered the dead body has not been examined. The person i.e. Maghu has not been examined in this case 9 who is said to have taken out the dead body from Aahar. The Chaukidar who watches the dead body for whole night was also not examined in this case. The I.O. has also not been examined. However, accepting the evidence of P. Ws. 1 and 2 the victim was last seen with the accused or the victim was taken by the accused at 3:00 P.M. The dead body was recovered at 7:00 P.M. Though the time in between the taking of the victim at 3:00 P.M. and recovery of the dead body was 7:00 P.M. Though the time of taking and time of recovery have a close proximate. The deceased died by injury of sharp and pointed weapon but not by drowning. There are five injuries on the person of the deceased by the sharp cutting weapon or a pointed weapon. However, the weapon was not discovered by which the injury was inflicted. Hence, under the facts and circumstances, these are several if and but who killed the victim who injured and by what weapon and how was thrown in Aahar. There is only evidence of the last seen and the evidence that the appellant was found absent from the house and dead body was recovered at 7:00 P.M. These circumstances are not sufficient leading to an irresistible conclusion that the appellant has murdered Arjun Nonia leaving ground in consistent with innocence of appellant. Unquestionably every effort required to have been made to find out who committed those murderous attacks. However, it appears that the investigation was made in most perfunctory manner. No effort was made to unfold the truth. The chain of circumstance is not so complete to come to irresistible conclusion to 10 the guilt of appellant in consistent with innocence. The motive of the occurrence alleged also is not as such compelling that Dukhani Dhobin will murder for mere intervention in the quarrel. Hence, the mere fact that the appellant took the victim at 3:00 P.M and remained absent till 12:00 P.M. in mid-night and the dead boy was recovered at 7:00 A.M. cannot be a circumstance of determinative character to hold appellant guilty in compatible with the innocence of the accused. Hence, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubt and appellant is entitled for the benefit of doubt and hence I give the appellant benefit of doubt and hold that the prosecution has not proved the charge beyond reasonable doubt. Hence, the order of conviction and sentence is hereby set aside hence, this appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 30th September, 2011. N.A.F.R./Kundan.