CRIMINAL APPEALS No.376 & 462, BOTH OF 1989 ******* Against the judgment passed by Sri Kailash Bihari Verma, 9th Additional Sessions Judge, Ara, dated 29th July, 1989 in Sessions Trial No.124 of 1988 arising out of Shahpur P.S. Case no. 161 of 1986. ******* MUNIA DEVI ----------------------Appellant (In Cr.Appeal no.376/1989) GUNJESHWARI LAL ----------------Appellant (In Cr.Appeal no.462/1989) Versus THE STATE OF BIHAR --------------Respondent (In both the Appeals) ******* For the Appellant : Mr. Tarun Kumar Sinha, Amicus Curiae For the State : Ms. Shashi Bala Verma, A.P.P. ******* P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. The two appeals, preferred by each of the appellants, assailing their conviction under Section 364/34 of the Indian Penal Code and order of sentence to undergo rigorous imprisonment for life and also to 2 pay a fine of Rs.2,000/- each and in default of payment to undergo rigorous imprisonment for one year awarded by learned 9th Additional Sessions Judge at Ara on 29th July, 1989 in sessions Trial no. 124 of 1988 arising out of Shahpur P.S. Case no. 161 of 1986. 2. The appellants, along with three others, faced the trial before the court below for the offences under Section 302/34, 364 and 201 of the Indian Penal Code but rest of the accused persons facing trial were acquitted from all the charges whereas the two appellants were found not guilty for the offences under Section 302/34 and 201 of the Indian Penal Code but were held guilty for the offences under Section 364 /34 of the Indian Penal Code. Accordingly, stand convicted and sentenced which is under challenge in this appeal by them. 3. The prosecution case, in short, as reveal from Exhibit-5, the written report of P.W.4, Bhuneshwar Sah, addressed to Officer-in-charge, Shahpur Police Station dated 14th December, 1986 is that a few days before in the evening of 11th December, 1986 at about 3 06.00 P.M. his nephew, Ganesh Sah, aged five years, was playing in the shop. Appellant Gunjeshwari Lal, a neighbour, who used to play with the boy, took him towards his house but when the boy did not return, search was initiated. Nothing could be traced out even appellant Gunjeshwari Lal avoided to give any specific reply. Nothing could be revealed in whole night instead of hectic search. In the morning of 12th December, 1986 it could be learnt from P.W.9, Neena Kumari, while she was returning from serving milk to her shop found accused GunjeshwarI Lal going towards southern orchard but, being neighbour, no doubt crept up in her mind and when the informant stated about the occurrence to Roop Narain Ojha (not examined), he also replied that all are involved in search operation. No result came out on whole day and night. On 13th December, 1986 about 8.00 A.M. Nirmal Kanu, P.W.13, who was requested to search and some time thereafter informed that two appellants besides Brijnandan Lal, Natur Yadav and Lallan Kahar are involved in the occurrence and they have kept the boy confined just to 4 realize some money. The informant accepted and requested P.W.13 to negotiate at any cost and boy should be returned but they did not paid any heed. The informant personally contacted Brijnandan Lal (father of appellant Gunjeshwari Lal) who demanded rupees ten thousand as the money to be distributed amongst all. This informant approached Krishna Mohan Ojha, P.W.11, Gopal Sah, P.W.2, Ramji Sah (not examined), Rama Sah, P.W.1, and gradually everything was spread among the villagers. Then the villagers assembled, started persuading, pleading accused Brijnandan Lal and his son Gunjeshwari Lal to retun the boy. Whereupon appellant Gunjeshwari Lal confessed that he got the boy in his control at the instance of appellant Munia Devi, brought him to the southern orchard and handed over to another accused Lallan Kahar (acquitted) who kept the boy concealed under a bed sheet and there appellant Munia Devi and accused Natur Yadav (acquitted) were also present and the three proceeded with the boy towards village Shahpur. On getting this information the villagers call appellant Munia Devi and other two 5 accused Lallan Kahar and Natur Yadav, persuaded to return the boy. There was huge gathering which started assaulting the miscreants by slaps and fists even hairs of appellant Munia Devi was also disturbed. All the five miscreants started blaming each other but never disclosed the actual place of confinement of the boy, ultimately the public brought the miscreants to Police Station with the informant. The reason for such occurrence, as narrated in the written application, is that there was some quarrel between the mother of the informant and appellant Munia Devi as regard to realization of some dues of the shop and Munia Devi had threatened to each lesson within eight days. On the basis of the above written report Shahpur P.S. Case no. 161 of 1986 was initially instituted under Sections 365 and 215 of the Indian Penal Code but subsequently, in pursuance of the order dated 19th December, 1986 it was converted into Sections 364 302, 301 and 215 of the Indian Penal Code. On institution of the case and investigation, charge sheet was submitted against all the five accused persons including the two appellants. 6 Cognizance was taken, case was committed to the Court of Sessions where trial commenced and charges were framed against the accused persons, who pleaded their innocence. 4. In order to substantiate the charges, prosecution has produced the following documentary evidence. (i) Exhibit-1 Signature of Bhuneshwar Sah on the written report. (ii) Exhibit-1/1 Signature of Bhuneshwar And 1/2 Sah and Chhotan Sah on the inquest report. (iii)Exhibit-2 Endorsement made on the Written report. (iv)Exhibit-3 Carbon copy of inquest Report. (v) Exhibit-4 Post mortem report (vi)Exhibit-5 Written report. (vii)Exhibits-6 Deposition of Krishna to 6/7 Mohan Ojha, Suraj Ojha, Nirmal Kanu, Jiut Ojha, Mithlesh Ojha, Rama Sao, Meena Kumari, Gopal Sao, & Krishna Mohan Ojha, recorded under section 164 Cr.P.C. before the Magistrate. Besides examining altogether fifteen 7 witnesses. No oral or documentary evidence has been produced by the defence and from the trend of cross- examination of the prosecution witnesses and suggestions given to them it appears that their defence is of innocence, false implication due to some petty disputes, not only with the informant but with prosecution witnesses also. 5. Now, it is to be seen in this appeal whether prosecution has been able to substantiate the charges beyond any shadow of reasonable doubt or finding of the court below needs any interference. 6. Before proceeding further it would be relevant to mention that inspite of repeated calls none appeared on behalf of either of the two appellants and, ultimately, this Court was compelled to appoint Sri Tarun Kumar Sinha to represent the appellants as amicus curiae who assisted the Court during hearing. 7. P.W.1, Rama Sah, has come to say that murder of the boy Ganesh took place one and half years ago and one evening after sunset while he was returning after meeting natural call, met with appellant 8 Gunjeshwari Lal near the well, who was going with Ganesh Ji, five years’ old boy. On query the appellant informed that he is carrying him to the Mathia. Roughly after two hours in the same evening during search of said Ganesh this witness asserts that he gave this information to the informant. He further asserts that his statement was recorded before the Magistrate. Similar is the statement of P.W.2, Gopal Sah, who also met with appellant and the victim near the well. But, none of these two witnesses are named in the written application, submitted to the Police, two days after the occurrence as the persons having any knowledge or providing any information rather Exhibit-5 indicates that it is P.W.9, Meena, who informed the informant in the next morning about the victim going with appellant Gunjeshwari Lal. But, P.W.9, in her short deposition, simply said that while she was returning from Mathia could see the appellant Gunjeshwari Lal proceeding with the victim, Ganesh Sah, but she has said nothing about giving any information to any one including the informant at any point of time. So from her evidence nothing transpires 9 whether she passed this information to the informant or not or if passed at what time. 8. P.W.3, Ram Dulari, who is none else than mother of the informant and grand mother of the victim, has come to say that at the relevant evening the appellant, Gunjeshwari Lal, arrived at her shop, asked for two biscuits from the victim who was sitting at a short distance. The victim Ganesh provided the biscuits to appellant after taking the same from her and the appellant took away the victim with him. Further she says that when Ganesh did not return, a search was initiated and even query was made from appellant Gunjeshwari Lal for about half an hour who stated that, at the instance of appellant Munia, he went towards Mathia with the victim. She further stated that enquiry was made from father of the appellant Brij Nandan (acquitted accused) who started demanding rupees ten thousand. News was spread but the demand was not reduced nor the victim was returned. Appellant Gunjeshwari Lal handed over Ganesh to Munia in presence of all the miscreants and P.W.9, Meena 10 Kumari, had seen Ganesh going with the appellant Gunjeshwari. Reason behind the occurrence is demand of rupees two hundred to three hundred from Munia Devi which was lying as dues for some goods taken from the shop, in return, she had threatened to give lesson within eight days. Further, she says that dead body of Ganesh was recovered after seven days in the river and by dint of fear witnesses were not ready to depose. From the statement of this witness it appears that she is one of the family members in whose presence appellant Gunjeshwari Lal took away the victim with him but no step appears to have been taken by the prosecution side regarding information given to the Police or putting pressure upon appellant Gunjeshwari Lal to know where about of the victim in the said evening when everything was known at least to the extent where the victim was with this appellant and as claimed by P.Ws 1 and 2 also that they have seen appellant and victim together going towards Mathia creates doubt about the entire prosecution version as regard to involvement of the persons named. This doubt 11 is further strengthen when in paragraph 8 of the cross- examination this witness, P.W.3, states that when appellant Gunjeshwari Lal was taking away the victim doubt was crept up in her mind, she raised alarm and appellant ran away with victim followed by some people (not coming as witness) and he could be apprehended at Mathia. That means, in the same evening such things happened but apart from non-mentioning of name of this witness, that is the mother, by the informant in written information and the circumstances, stated above, inspite of the fact that under law the written report / fard-e-bayan is not an encyclopedia, the doubt raised by learned amicus-curiae is not diluted. Her attention was drawn towards her statements before Police under Section 161 of the Code of Criminal Procedure wherein she had not stated about seeing the appellant Gunjeshwari Lal taking away the victim rather stated about getting such information through P.W.9, Meena, that means on the next morning. 9. P.W.4, Bhuwaneshwar Sah, is the informant. Coming to substantiate the witnesses 12 examined earlier as he, in his examination-in-chief, supports with the statement that he got information from his mother that appellant Gunjeshwari Lal demanded biscuits from the victim which was provided by his mother, P.W.3, to the victim to transfer the same to appellant Gunjeshwari Lal, who took one biscuit for himself and another provided to the victim Ganesh and further getting information from his mother that victim was playing at the door from where appellant took him away. In paragraph 4 he asserts that he is not an eye witness to such state of affairs and further explained that since appellant Gunjeshwari Lal used to play with victim he had no doubt against him. But, he further demolishes his own statement in just next paragraph no.5 in examination-in-chief itself when he speaks that roughly after one and half hours during search operation P.Ws 1 and 2, Rama Sah and Gopal Sah, informed him about appellant Gunjeshwari Lal going with the victim towards southern orchard. But, nothing could be traced out inspite of search and appellant Gunjeshwari did not replied to any query. On such conduct of appellant, as 13 alleged, if true conduct of the informant appears abnormal as to how he will keep mum and did not inform the Police about the involvement of appellant Gunjeshwari Lal or such informations received promptly. However, according to him, in next evening he got information from P.W.9 informed Rup Narain Ojha (not examined). On 13th December, 1986 he met with P.W.13, Nirmal Kanu, got information about other miscreants including appellant Munia Devi and demand of ransom etc. but inspite of his readiness to pay nothing could happened and, ultimately, on 14th December, 1986, that is on fourth day the villagers, including P.Ws 5 and 8 assembled at the house of Brijnandan Lal where appellant Gunjeshwari Lal was called, confessed that at the instance of appellant Munia he brought the victim Ganesh to the orchard where other four named accused including appellant Munia were sitting and he handed over Ganesh to them from where Lallan Kahar (acquitted) went towards Shahpur with victim concealing him under a bed sheet and then all the miscreants were called but, though confessed, started 14 blaming each other, ultimately, brought to Police station where written application was submitted. Signature of this witness on the same Exhibit-1 was proved. He further stated the reason of the occurrence as earlier quarrel and demand of arrears and threatening by appellant Munia. Further in paragraph 14 this witness proved his signature besides others on inquest report. On recovery of dead body on 18th December, 1986 which are marked Exhibits 1/1 and ½ . He asserts that the witnesses including P.W.6, Suraj Oja, P.W.8, Janardan Ojha, P.W.9, Meena, and P.W.11, Krishna Mohan Oha, are not ready to come. During cross- examination attention of this witness was drawn towards his earlier statement under Section 161 of the Code of Criminal Procedure wherein he had not said about any information received from his mother, P.W.3, Ram Dulari, and about avoiding to reply by appellant Gunjeshwari Lal or said confessional statement by him before public at large. However, during cross- examination, paragraph-23, he states that he had lodged a Sanha earlier before the Police on the very night of 15 occurrence but the same is not on record. However, one thing relevant, as stated by this witness, is that name of none of the accused was mentioned therein and this itself, as stated earlier, gives a death blow to the prosecution version as regard to the claims of P.Ws 1, 2 and 3 as the persons witnessing appellant Gunjeshwari Lal taking away victim Ganesh Sah. This witness also had denied the suggestion that once earlier he had illegally tress-passed in the house of appellant Munia Devi on whose alarm he was not only assaulted but also penalized so got her involved in the instant case. Similar suggestion was also given to P.W.3 in paragraph 16. 10. Apart from these four witnesses there is none claiming any direct information about the occurrence or witnessing the same. P.W.5, Jiut Ojha, has come to say that in the very next morning of missing of Ganesh, his grand mother (P.W.3) called him on the ground that there is a gathering of villagers wherein, according to him, appellant Gunjeshwari Lal confessed that he brought the victim and handed over to Munia 16 Devi who too was requested to return but she kept mum. If the entire statement of this witness is taken to be true, it further gives death nail to the prosecution case as according to this witness in the next very morning everything was known to the prosecution side but nothing happened. He further admits that statement of appellant Gunjeshwari Lal was not recorded nor he personally verified anything. Further he denied that Gunjeshwari Lal had worked against Mukhiya in his election and Mukhiya is relative of this witness so he had a grudge. 11. Almost similar is the position of P.W.6, Suraj Ojha, when only variation with appellant Munia denied allegations levelled by appellant Gunjeshwari Lal against her. But, likewise P.W.6 he is also firm that no statement of Gunjeshwari Lal was recorded and further denied working of Gunjeshwari Lal against Mukhiya and leaving house hold work by Munia in the house of Mukhiya. 12. Mithilesh Ojha, P.W.7, is again a witness of alleged confession by the miscreants but 17 likewise other witnesses he too admits that nothing was recorded and about role of Munia Devi contrary to P.W.6 he says that she accepted that she had handed over the victim to c-accused Lallan Kahar (acquitted) who denied such allegations. 13. Janardan Ojha, P.W.8, the Mukhiya getting information from informant, participated in interrogation by villagers wherein, according to him, appellant Gunjeshwari Lal confessed that he brought the victim and handed over to c-accused. But inspite of request none produced the victim. Ultimately, the miscreants were brought to Police station. That means he has confined only to the happenings of the day submitted written information by the informant to the Police. In cross-examination he admitted that nothing was recorded in Panchayat papers and further denied the suggestion that husband of Munia Devi left his work so he has some grudge against him besides similar suggestion was given on behalf of other miscreants (acquitted) and by appellant Gunjeshwari Lal that he worked against this witness which has been denied. 18 14. P.W.10, Chottan Sah, a formal witness, has proved his signature on inquest report Exhibit-1/2. P.W.11, Krishna Mohan Ojha, is again the person getting information about the occurrence through the informant on very first evening, that is, on 11th December, 1986, wherein involvement of all the miscreants, including two appellants, was narrated to him and in the next morning he states about the confession etc. and recovery of dead body three to four days after their handing over to the Police and again there is no explanation from the prosecution as to when everything was known, as claimed by this witness regarding involvement of all the miscreants, what prevented the prosecution to come in action immediately. Similarly, P.W.13, Nirmal Kanu, whose name finds place in written report, contrary to the prosecution case goes to say that at about 11.00 P.M. on the day of occurrence itself the informant came to him, informed about the wrong committed by all miscreants and this witness was declared hostile but for almost similar statement P.W.11, Krishna Mohan Ojha, was not 19 declared hostile rather the prosecution relies upon his statement. This contrary stand with respect to two witnesses of almost similar nature further gives jolt to the prosecution. 15. P.W.12, Ram Pratap Tiwary, is a part Investigating Officer of the case who got statement of some witnesses recorded under Section 164 of the Code of Criminal Procedure and submitted charge sheet. There appears nothing more for discussion in his evidence. P.W.14 is Sunil Prasad Singh, the main Investigating Officer, who proved endorsement of written report, Exhibit-2, recorded further statement of the informant and statement of the witnesses, deputed Chaukidar and Dafadar to trace out the factum and, ultimately, on 18th December, 1986 dead body was recovered from river. Inquest was prepared, the body was kept confined in a gunny bag. It was identified and sent for post mortem. In cross-examination he admits that on 11th December, 1986, that is the date of occurrence, he got Sanha entry recorded which was not available before him at the time of deposition and the 20 same is still missing. But, likewise the informant, he further admits that neither any doubt was cast against any person nor name of any miscreants was mentioned. If it is so, the prosecution version as regard to taking away the victim by appellant Gunjeshwari Lal in presence of at least P.Ws 1, 2 and 3 cannot be accepted, as discussed earlier. This witness, in paragraph 11, has said that P.W.3, Ram Dulari, mother of the informant, had said before him that she got information about the occurrence from Meena (P.W.9). Similarly, P.W.4, the informant, had not said before him that he got information through his mother. 16. Last but not least, P.W.15, Dr. Kamta Prasad Rai, who held autopsy on the dead body on 19th December, 1986 found the following injuries: “On external examination, I found decomposed dead body, both legs were inflexed position, abdomen was swollen, prominent and it was giving offensive smell. The ligature mark was well defined and depressed, situated low down in neck, anterior encircling the neck horizontally. Eyes were prominent and open. Right eyebrow had been taken out and put in the socket. Tongue was swollen, protruding and bitten by teeth. On internal examination, it was found: extravation of blood into the subcutaneous under the ligature mark, and the adjacent 21 muscle in neck. Lungs and trachea were congested and contained frothy tissues. There was fracture of hyoid bone. The right side of arm was full of dark fluid blood and left side was empty. Stomach contained undigested roti. The injury was ante-mortem. The cause of death was asphyxia due to strangulation. Time elapsed since death 3 to 4 days.” 17. According to the doctor, the death was caused within three to four days of post mortem examination which was conducted on 19th December, 1986 at 9.30 A.M. that means the death of the victim must have caused either on 15th December, 1986 or on 16th December, 1986. It cannot be stretched on or before 14th December, 1986, the date which, as per prosecution case, the miscreants were over powered and handed over the Police and when they were apprehended there must be some one else behind the scene who caused death of the victim. No doubt, the appellants have not been convicted for the offences under section 302 of the Indian Penal Code but there is one important link missing who was this person behind the scene and prosecution is conspicuously silent and as regard to alleged extra judicial confession of the appellants there is variation in 22 the statement of all the witnesses, stated above. Moreover, the prosecution has tried to improve the case by producing three witnesses, P.Ws 1, 2 and 3 claiming witnessing the appellant, Gunjeshwari Lal, taking away the victim. The prosecution is not consistent as regard to alleged date and manner of such extra-judicial confession which was not reduced in writing or signature or left thumb impression of either of the miscreant was recorded and almost on similar materials other three accused persons facing trial have already been acquitted by the trial court on basis whereof it is submitted by learned counsel, Sri Sinha, that the two appellants also deserve same treatment. 18. In view of inconsistent materials, as discussed above, we are of the view that prosecution has not been able to establish the charge against the appellants beyond any shadow of reasonable doubt and once such situation arose and prosecution fails to remove the cloud cast against its version, as per established principle of law, the appellants are entitled for the benefits. 23 19. Consequently, conviction and sentence of the appellants is not sustainable. Hence, sentences are set aside. Both the appeals are hereby allowed. The appellants are set free from the liability of bail bonds furnished on their behalf. 20. At the end, we appreciate the co- operation given by Sri Tarun Kumar Sinha, learned amicus curiae, and Office is directed to hand