IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.471 of 1989 Against the order of conviction and sentence dated 06th September, 1989 passed by the Sessions Judge, Purnea in Sessions Trial No.188 of 1986 arising out of G.R. Case No.1000 of 1985. ================================================= Phul Kumar Mandal, Son of Late Amilal Mandal, resident of Village-Kurwa Laxmipur, P.S.-Forbesganj, District-Purnea. .... .... Appellant. VERSUS The State of Bihar .... .... Respondent. ================================================= Appearance : For the Appellant : Mr. N.A. Shamsi with Mr.Neeraj Sanidh, Advocates. For the Respondent :Ms. Shashi Bala Verma, A.P.P. CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH & HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH) ****** The sole appellant has challenged the judgment and order of conviction dated 06th September, 1989, passed in Sessions Trial No.188 of 1986, by Shri Bishwendra Narain Singh, „Neelam‟ the learned Sessions Judge, Purnea by which he had convicted the appellant under Section-302 of the Indian Penal Code (I.P.C.) and sentenced him to under go rigorous imprisonment for life. The prosecution case as given by the informant, Kamla Nand Mandal in his fardbeyan marked as Ext.3 so recorded by Sub-Inspector of Police, R.N. Choubey (P.W.6) at the door of the informant on 14.08.1985 at 3 am in the night of 13.08.1985 is that Patna High Court CR. APP (DB) No.471 of 1989 dt.30-11-2011 - 2 - the informant was gossiping with Dayanand Mandal (P.W.2) at his residence on the Northern verandah of his Eastern house and his younger brother Sakaldeo Mandal (since deceased), who was said to be a student of Class-X, was at that time reading sitting by the side of the informant with the help of Lantern so burning at about 9 pm. The informant states that he went to take his dinner whereas Dayanand Mandal is said to have gone to his home. When the informant was yet to start his meal in the courtyard, he heard the voice of his younger brother Sakaldeo Mandal screaming “Ho Bap”. On hearing this, the informant rushed outside towards his Northern Varandah of his Eastern house where he found his younger brother Sakaldeo Mandal lying on the ground tossing. The informant asked from Sakaldeo Mandal regarding the incident but Sakaldeo Mandal could only utter the name of Phul Kumar (the appellant) and signaled towards West with his right hand. The informant stated that immediately thereafter Sakaldeo Mandal succumbed to his injury. In the meantime, his father, Harinandan Mandal (P.W.4) came running and when he flashed his torch on Sakaldeo Mandal he found his neck cut and the blood oozing out profusely. On hue and cry being raised, the villagers, Dayanand Mandal (P.W.2), Bindeshwari Mandal (not examined), Shobha Kant Mandal (not examined), Phahimlal Mandal (not examined) and Budhu Mandal (not examined) reached there to whom he narrated the entire incident. The fardbeyan of the informant, Kamla Nand Mandal (not examined as dead by then) was recorded by S.I., R.N. Choubey (P.W.6) on 14.08.1985 at 3 am in village Kurwa Laxmipur, P.S. Forbesganj Patna High Court CR. APP (DB) No.471 of 1989 dt.30-11-2011 - 3 - (Simraha), District Purnea. On the basis of the said fardbeyan a formal F.I.R. was drawn on 14.08.1985 at 10 am in the police station under Section-302 I.P.C., which was marked as Ext.4. The signature of the informant on the fardbeyan is proved and marked as Ext.1/8. The signatures of witnesses, namely, Krityanand Bishwas and Dayanand Bishwas on the body of the fardbeyan are also proved and marked as Exts.1/6 and 1/7 respectively. The endorsement over the same made by P.W.6, R.N. Choubey is also marked as Ext.5. On completion of investigation chargesheet was submitted against the sole appellant, Phul Kumar Mandal under Section-302 I.P.C. The learned Magistrate took cognizance of the offence and committed the case to the Court of Sessions for trial. The Trial Court framed charge for the offence punishable under Section-302 I.P.C. against the appellant for having committed murder intentionally and knowingly of deceased Sakaldeo Mandal in the night intervening between 13th-14th August, 1985 in village Kurwa Laxmipur. The appellant denied the charge and claimed to be tried. In course of trial altogether 6 prosecution witnesses were examined. P.W.1 is Munsi Mandal, who is son-in-law of P.W.4, Harinandan Mandal and brother-in-law of the informant and deceased. His evidence is mainly on the point of motive for the alleged commission of murder. P.W.2 is Dayanand Mandal. He is a witness to the F.I.R. as well as witness to the seizure list prepared by the Investigating Officer at the place of occurrence. He had seen the appellant fleeing away with „Dabia‟ in his hand immediately after Patna High Court CR. APP (DB) No.471 of 1989 dt.30-11-2011 - 4 - the occurrence. P.W.3, Kamleshwari Prasad Mandal is also a witness to the inquest. He had also seen the appellant fleeing away from the place of occurrence immediately after hue and cry was raised by the informant and his family members regarding the place of occurrence with „Dabia‟ in his hand. P.W.4, Harinandan Mandal is father of the deceased. He is a person who according to the informant was present in the house when the occurrence took place. P.Ws.5&6 are the Medical Officer and the Investigating Officer respectively. Apart from the aforesaid 6 witnesses, one witness, namely, Mahanth Lal Mandal was examined in this case as a Court witness. He is brother of the informant and the uncle of deceased. His evidence is mainly on the point that the informant died sometimes in the month of January, 1987. Admittedly, in this case, there is no eye witness to the occurrence. The case is based on circumstances of facts. In case of circumstantial evidence the prosecution must establish that it was the appellant who alone could be and was responsible for causing the death of the deceased. Having noticed the evidence on record, we find that though the Investigating Officer, P.W.6 claims to have come to know regarding murder of one person in village Kurwa Laxmipur, while he was on patrolling duty on 14.08.1985 at 1:30 am, but he has not disclosed the source from which he came to know about the fact of the incident. As alleged, the murder took place at about 9 pm on 13.08.1985 and apart from the informant, inmates of the house and several villagers had assembled at the place of occurrence Patna High Court CR. APP (DB) No.471 of 1989 dt.30-11-2011 - 5 - immediately upon knowledge of the incident. It is surprising that no one informed the police though the police station was at a distance of only 7 kms. from the place of occurrence. The informant claims in the fardbeyan that immediately before the occurrence he was talking with Dayanand Mandal, P.W.2 and his brother Sakaldeo Mandal, deceased. Sakaldeo Mandal was reading in the light of Lantern. In the meantime, he went for dinner in the courtyard of his house and Dayanand Mandal went to his house. The moment he sat for taking his meal he heard screaming voice of his brother and found him tossing on the floor. However, P.W.2, Dayamandal states that at about 9 pm on the date of occurrence while he was going to arrange for labourers towards Harijan Tola and passing near the house of the informant he heard the sound of crying and proceeded towards the door of the informant. He saw the appellant fleeing away with „Dabia‟ in his hand. He is contradicting in material particular the statement made by the informant in the fardbeyan in this regard. If the informant is to be believed then P.W.2 had already gone to his house. In this situation the story propounded by P.W.2 that he was proceeding towards Harijan Tola for arranging labourers becomes unbelievable. If the version of P.W.2 is found to be unreliable then in that case it would be difficult to believe that he saw the appellant fleeing away with „Dabia‟ in his hand. P.W.3, Kamleshwari Prasad Mandal states that both he and P.W.2, Dayanand Mandal has seen the appellant fleeing away with „Dabia‟ in his hand and they stated this fact to the informant, Kamleshwari Prasad Mandal in the night itself even before recording Patna High Court CR. APP (DB) No.471 of 1989 dt.30-11-2011 - 6 - of the fardbeyan, but the informant did not state this fact to the Investigating Officer when his fardbeyan was being recorded at 3 am. The informant in his fardbeyan states that on hue and cry being raised Dayanand Mandal, P.W.2, Bindeshwari Mandal, Shobha Kant Mandal, Phahimlal Mandal, and Budhu Mandal arrived there and he disclosed them the incident. The informant even forgets to take name of P.W.3, Kamleshwari Prasad Mandal who claims to have arrived after the incident. He has also been categorical in saying that it was he who disclosed the witnesses who came subsequently at the place of occurrence regarding the incident. P.W.2, Dayanand Mandal in his deposition stated that he saw the appellant entering his house while fleeing away. The house of the appellant, according to the Investigating Officer, was only 300 yards away from the house of the informant. According to P.W.2 40-50 co-villagers had assembled at the place of occurrence soon after the occurrence. In cross-examination he admits that no one went to the house of the appellant either to search him or to enquire from him regarding the incident. In our view, if the version of P.W.2 is to be believed the natural conduct of the villagers who had assembled immediately at the time of occurrence would have been quite different. They ought to have made an enquiry from the appellant who went to his house in the neighbourhood. We further take notice of the fact that in cross- examination P.W.2 has admitted that brother of the appellant had already instituted a criminal case against him and P.W.3, Kamleshwari Prasad Mandal. Thus, the enmity stood admitted Patna High Court CR. APP (DB) No.471 of 1989 dt.30-11-2011 - 7 - between the appellant and P.Ws.2 & 3. In such circumstances, their evidence has to be scrutinized more carefully. Both P.Ws.2 & 3 stated that they saw the appellant fleeing away in the torch light. They produced the torch before the Investigating Officer. The Investigating Officer seized those torches and released them in their favour on „Jimanama‟ but material exhibits, that is, the torches, which is said to be the means of identification of the appellant in the night of occurrence were never produced in the Court. Now, we take up the evidence of P.W.1, Musharu Mandal which is mainly on the point of motive for the alleged incident. P.W.1 admits to be the son-in-law of P.W.4, Harinandan Mandal and brother-in-law of both the informant and the deceased. In his examination-in-chief he states that on 13.08.1985 he saw the appellant and the deceased altercating at 5 pm. Thereafter, he and Phahimlal Mandal pushed them apart. The appellant threatened the deceased on that evening that he would teach him a lesson. Though P.W.1 claims to have come immediately after the incident at the place of occurrence and was present in the morning of 14.08.1985, while the Investigating Officer was also present in the place of occurrence village, his statement was not recorded by the Police. The motive part which is being ascribed by him also does not find mention in the fardbeyan. P.W.1, being a close relative and being present in the night of the occurrence, had ample opportunity to disclose this important fact to his brother-in-law (the informant) in the night itself. Surprisingly, when the Investigating Officer was cross-examined in this regard he admitted that the statement of Patna High Court CR. APP (DB) No.471 of 1989 dt.30-11-2011 - 8 - P.W.1, Musharu Mandal under Section-161 (3) Cr.P.C. was recorded for the first time on 21.08.1985, that is, after a week of the occurrence. The story of motive thus appears to have subsequently been introduced by the prosecution. The reason assigned for altercation between the deceased and the appellant both by P.W.1, Musharu Mandal and P.W.4, Harinandan Mandal is because of teasing the deceased‟s sister Sitali Devi. Thus, Sitali Devi being a very important witness could have thrown some light in this regard. The Investigating Officer has admitted in cross-examination that statement of Sitali Devi was recorded by him in course of investigation. Sitali Devi has not been examined by the prosecution in course of trial. There is no explanation for her non-examination. We find that she was a material witness and we would draw an adverse inference for her non-examination in course of trial against the prosecution. In case of direct evidence where eye witnesses have seen the crime the motive may not be important factor, but in case of circumstantial evidence motive becomes an important and relevant factor. If the prosecution alleges some motive, it is for the prosecution to prove that. We find that neither P.W.1 nor P.W.4 seems to be believable on this count and, thus, motive for committing crime has not been established by the prosecution. It has been submitted on behalf of the appellant that the informant has named five witnesses in the F.I.R. They are Dayanand Mandal, Bindeshwari Mandal, Shobha Kant Mandal, Phahimlal Mandal, and Budhu Mandal. Apart from P.W.2, Dayanand Mandal other witnesses have not been examined in course Patna High Court CR. APP (DB) No.471 of 1989 dt.30-11-2011 - 9 - of trial. Witnesses of the F.I.R., namely, Krityanand Bishwas and Dayanand Bishwas have also not been examined by the prosecution in course of trial. No explanation has been given for non- examination of these important witnesses. Of course, P.W.4, Harinandan Mandal has stated that Phahimlal Mandal has gone in collusion with the appellant but that may be treated to be an explanation for non-examination of only Phahimlal Mandal. So far as other witnesses are concerned, there is no explanation given by the prosecution for their non-examination. The witnesses who have been examined are either related to the deceased or inimical to the appellant. We also find that the informant of the case Kamleshwari Prasad Mandal has not been examined by the prosecution. It was for this reason that Mahanth Lal Mandal at very late stage was examined in the Court as a Court witness. Mahanth Lal Mandal has stated that the informant died out of illness in January, 1987. However, in cross-examination he could not produce any document either to support illness or to support the death of his brother. He even could not give the exact date of death of his brother. In our view, the explanation given by the prosecution regarding the death of the informant in this case is not satisfactory. The most important part of this case is deposition of P.W.5, Dr. Salahuddin Ahmad who conducted the postmortem examination of the deceased. He has proved the postmortem report which has been marked as Ext.2 in this case. The doctor had conducted postmortem examination on the dead body of Sakaldeo Mandal on 14.08.1985 at 4 pm. He found one incised wound on Patna High Court CR. APP (DB) No.471 of 1989 dt.30-11-2011 - 10 - front of the neck 4” long X 2” wide cutting fully the skin sub- cutaneous tissue muscles oesophagus trachea with haematoma with blood clots in the wound. In cross-examination, the doctor admits that after such throat cut a man will collapse and go in unconscious state. The injury was obliquely situated with wind pipe was fully cut and a person could not speak in that situation. If the doctor is to be believed then the very fardbeyan becomes doubtful. If the victim was not in a position to speak it is difficult to believe that he could have uttered the name of the appellant which could be heard by the informant. Thus, we find that the version of the informant even though not examined in Court as per fardbeyan seems to be not truthful. The medical evidence is inconsistent with the ocular testimony. The medical evidence completely rules out the possibility of disclosure of name of the appellant from the mouth of the victim. We take note of another important aspect of this case. The Investigating Officer claims that he came to know regarding the occurrence while he was on patrolling duty at about 1:30 pm. He then proceeded towards the place of occurrence. In the way he detained the appellant, who was found present in a suspicious circumstance. On being questioned the appellant, stated that he was fleeing away because his name was being dragged in alleged murder of Sakaldeo Mandal. The Investigating Officer thereafter took him to the place of occurrence. It was the appellant, according to the Investigating Officer, who pointed him the house of the informant Patna High Court CR. APP (DB) No.471 of 1989 dt.30-11-2011 - 11 - when they reached the place of occurrence. The statement of informant was recorded at about 3 am. If these facts were true in that circumstance, the witnesses, who were present there according to the prosecution case, ought to have narrated this fact in their evidence. None of the witness from the side of the prosecution has corroborated this story of the Investigating Officer. When the appellant was being examined under Section-313 of the Code of Criminal Procedure, this question was put to him that he was arrested by the Investigating Officer in a suspicious circumstance, while he was fleeing away, the appellant replied that it was not true and he was arrested from the door of his house. We find that the uncorroborated story of Investigating Officer in this regard is not worth reliance and in absence of any support from any other witness with regard to the fact that the appellant was apprehended while fleeing away in a suspicious circumstance makes the foundation of prosecution case doubtful. The Trial Court has convicted the appellant finding circumstantial evidence adduced on behalf of the prosecution to be reliable and conclusive in nature. Here we may note that the law is well settled that in case of circumstantial evidence it must satisfy the following facts before recording an order of conviction:- (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 definite tendency unerringly pointing towards the Patna High Court CR. APP (DB) No.471 of 1989 dt.30-11-2011 - 12 - guilt of the accused; (iii) the circumstances, taken cumulatively should form 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. From the evidence adduced in the present case, we find that save and except wild suspicion being raised against the appellant there is absolutely nothing to incriminate the appellant with the alleged offence. The chain of circumstance is neither complete nor inconsistent with innocence of the appellant. The suspicion howsoever strong cannot take place of proof. We notice yet another aspect of this matter. In this case, the inquest report is alleged to have been prepared at 6:30 am on 14.08.1985 at the place of occurrence itself, but in none of the columns of the inquest report we find the name of the appellant given. The articles said to have been seized from the place of occurrence have not been produced in Court as material exhibits. The Investigating Officer admits in his cross-examination that those Patna High Court CR. APP (DB) No.471 of 1989 dt.30-11-2011 - 13 - material exhibits are not present with him. The alleged weapon of offence „Dabia‟ has neither been seized nor been produced in the Court. The report of Forensic Science Laboratory of the articles sent for chemical examination has admittedly neither been received nor been produced in the Court. All these facts are fatal for the prosecution. Thus, we find that the judgment and order of conviction passed by the Court below cannot be upheld. In the result, we set aside the impugned judgment and order of conviction and sentence passed by the Court below and discharge the appellant who is already on bail from the liabilities of bail bonds. The appeal stands allowed. (Navaniti Prasad Singh, J.) Patna High Court (Ashwani Kumar Singh, J.) Dated 30th November, 2011 Trivedi/NAFR