Death Reference No. 4 of 2009 With Criminal Appeal No. 476 of 2009 (D.B.) **** Against the judgment of conviction, dated 14.05.2009, and order of sentence, dated 18.05.2009, passed by Sri Jhula Nand Jha, Additional Sessions Judge, III, Bhagalpur, in Session's Trial No. 874 of 2004/Tr. No. 109 of 2009 and Session's Trial No. 434 of 2005 **** Death Reference No. 4 of 2009 The State of Bihar Versus 1. Md. Gulab, S/O Md. Rehman @ Abdul Rahman 2. Md. Pipiya, S/O of late Md. Murshid @ Chulwa 3. Md. Asmat, S/O late Md. Mustafa All residents of village Kabirpur, P.S. Nathnagar, district Bhagalpur Criminal Appeal No. 476 of 2009 (D.B.) 1. Md. Gulab, S/O Md. Rehman @ Abdul Rahman 2. Md. Pipiya, S/O of late Md. Murshid @ Chulwa 3. Md. Asmat, S/O late Md. Mustafa All residents of village Kabirpur, P.S. Nathnagar, district Bhagalpur .. Appellants Versus The State of Bihar .. Respondent **** For the appellants .. M/S Krishna Mohan & Praveen Kumar, Advs. For the respondent .. Mr. Ashwini Kr. Sinha, A.P.P. **** 2 P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD Shyam Kishore Sharma & Gopal Prasad, JJ. Both the matters have been heard together and being disposed off by this common judgment as both arise out of same judgment and order passed in Session's Trial No. 874 of 2004/T.R. No. 109 of 2009 and 434 of 2005 arising out of Nathnagar P.S. Case No. 13 of 2003, dated 24.01.2003, by which the three appellants have been convicted under Sections 302 and 201 of the Penal Code and sentenced to death for offence under Section 302 of the Penal Code and have further been sentenced to undergo rigorous imprisonment for seven years for offence under Section 201 of the Penal Code. 2. The prosecution case, as alleged, in the fardbeyan of Shamshuddin, Dafadar and the father of the deceased, is that on 22.01.2003 at about 07.30 in the evening his son, Iliyas, went out of the house after taking his meal, but, he did not return till 24.01.2003 till 10.20 a.m. Thereafter, he learnt that in the well of Raghopur, Bahiyar, the slipper is floating and some blood has also been found on the well. On the said information he went there and found the information true and, thereafter, the dead body of his son taken out from the well and it was found that his both hands were tied with a muffler and found hole on his shoulder and neck. It has further been alleged that he has knowledge that 3 his son was in the company of Md. Pipiya, Md. Imran, Bunty and the younger and elder sons of Aslam. On the fardbeyan of the informant, the first information report was registered and the investigation proceeded. After investigation the charge sheet was submitted, cognizance has been taken and, thereafter, the case was committed to the Court of Session and after the commitment the charges were framed under Sections 302 and 201 of the Penal Code against Md. Pipiya and Md. Gulab on 06.12.2004. However, subsequently, again a charge was farmed against Md. Pipiya, Md. Gulab and Asmat for offence under Sections 302/34 and 201 of the Penal Code on 06.08.2005 and the trial proceeded. However, it is pertinent to mention that earlier the charge was framed against two accused persons on 06.12.2004 in Session's Trial No. 874 of 2004. However, subsequently it appears that the case of third three accused was also committed and the sessions trial number of third accused was numbered as Session's Trial No. 434 of 2005 and the two cases were consolidated by order, dated 24.06.2005 and by order, dated 06.08.2005, the charge was again framed against all the three accused persons. However, it is pertinent to mention that earlier in Session's Trial No. 874 of 2004 four witnesses have been examined in which appellants were facing trial. The witness examined in that case were P.W. 1, Md. Jahid, P.W. 2, Md. Kalim, P.W. 3, Manjal Alam, and P.W. 4, Md. Ishrafil. However, after consolidation of the two cases with the consent of the parties and having charge framed against all of them on 06.08.2005 for offence under Sections 302/34 and 201 of the Penal Code, trial proceede 4 against all and nine witnesses were examined, who are P.W. 1, Md. Israfil, P.W. 2, Md. Nadim, P.W. 3, Md. Zahid, P.W. 4, Bibi Hajra @ Jahra Khatoon, P.W. 5, Md. Kalim, P.W. 6, Farhan Ashraf, P.W. 7, Shamshuddin, P.W. 8, Kamta Prasad Mahto, and P.W. 9, Dr. Yogesh Prasad Sah. The documentary evidence adduced in the case is Exhibit 1, the signature of Md. Zahid on his statement under Section 164 of the Criminal Procedure Code, Exhibit 2, the signature of Farhan Ashraf, P.W. 6 on his statement under Section 164 of the Criminal Procedure Code, Exhibit 3, the fardbeyan, Exhibit 4, the inquest report, Exhibit 5, the confessional statement of Md. Asmat, and Exhibit 6, the post mortem report. 3. However, from the perusal of the record it appears that Exhibits 1 and 1/1 have wrongly been mentioned as Exhibits regarding the signature of the witnesses on the inquest report though it appears to have been wrongly marked as Exhibits 1 and 1/1 and the signature of Shamshuddin on the fardbeyan has been marked as Exhibit 2 and, hence, it appears that this Exhibit 2 has wrongly been mentioned. However, the signature of Shamshuddin has been proved though Exhibit 2 renumbered. 4. However, after considering the oral and documentary evidences, the learned lower Court has convicted the accused persons as at the outset. 5. The learned counsel for the appellants has contended that there is no legal evidence against the appellants for their conviction and sentence for offence under Sections 302 of the Penal Code as there is 5 no eye witness to the occurrence and the entire evidence hinges on circumstantial evidence, but, no fact which can be said to complete the chain of the circumstances have been proved by legal, reliable and cogent evidence for forming a chain of circumstance and the learned Court below has convicted and sentenced the appellants on mere conjuncture and surmises. 6. The learned counsel for the State, however, also does not from the core of his heart deny the contention. However, the question is for consideration whether the prosecution has been able to prove the charges beyond reasonable doubts. However, the prosecution case, as alleged in the fardbeyan of the informant, who happens to be father of the deceased, is that on 22.01.2003 at about 07.30 in the evening his son, Iliyas, went out the house after taking his meal, but, he did not return till 10.30 a.m. on 24.01.2003. However, he learnt that a sandle is floating in the well in Raghopur Bahiyar, which belongs to Jhunni Yadav and then he went there, found the information true and then with the help of the villagers the dead body of Iliyas was taken out. 7. However, P.W. 1 is Md. Israfil. He is the elder brother of the deceased. However, he has stated that the accused persons have hand in the murder of the deceased and two days prior to the occurrence accused persons had taken the victim. 8. However, in his cross examination he has stated that the day Iliyas was kidnapped he was at Calcutta and he was in Calcutta since 10 to 15 days prior to the occurrence and he learned about the occurrence 6 after coming from Calcutta and, hence, apparently this witness is not an eye witness and even not a witness of having last seen as he has stated that since 10 to 15 days prior to the occurrence he was at Calcutta. 9. P.W. 2, Md. Nadim, is a witness on the inquest report and he proved his signature on the inquest report. However, he has stated that he signed at the inquest report at the instance of police and this witness has been declared hostile by the prosecution having not supported the case though he has proved his signature. 10. P.W. 3 is Md. Zahid. He has also stated that he does not know anything about the occurrence. However, this witness has also been declared hostile by the prosecution. However, his attention has been drawn and he has been cross examined by the prosecution though in his evidence he has stated that his statement has been recorded before the Magistrate, but, he gave the statement under the pressure and influence of the police though he has stated that he stated before the Magistrate that Asmat has called Iliyas at his house, but, denied the suggestion. Now he is changing his version and he does not remember what he has stated before the Magistrate. However, he stated that he heard the sound of cry while was to meet the call of nature on 24.01.2003 at 04.00 a.m. then saw Md. Gulab and Md. Mahmood catching hold of Iliyas and Bablu tied the mouth of Iliyas and, thereafter, they assaulted him by iron rob on the neck and this statement stated to be made before the Magistrate. However, in cross examination he has stated that he had not given the date and whatever he has stated that statement was made under the threat of Shamshuddin and 7 under the pressure of Daroga. He had not seen any occurrence from his own eyes and he has no knowledge about the occurrence and he has admitted that whatever he had stated on oath he has not seen that occurrence. He has also filed his petition before the Chief Judicial Magistrate and has proved the signature on the petition filed which has been marked as Exhibit ‘A’ and he also proved the vakalatnama filed on his behalf, which bears his signature, which has been marked as Exhibit ‘B’, hence, from the evidence of this witness it is apparent that though he has stated that he gave statement under Section 164 of the Criminal Procedure Code before the Magistrate, but, has stated that this statement before the Magistrate was made under the threat and pressure of Shamshuddin and Daroga and he has not seen the occurrence. However, the evidence under Section 164 of the Criminal Procedure Code is not a substantive piece of evidence and it loose it’s significance when the witness not supports the prosecution case and states specifically that this statement was given by him under the threat and having not supported the prosecution case in his evidence in the Court. Hence, this evidence may not be relied against the accused persons or the appellants. 11. P.W. 6 is Farhan Ashraf. He has also stated in his evidence that Daroga took him to Magistrate for statement under Section 164 of the Criminal Procedure Code and though he has also proved his signature on the statement under Section 164 of the Criminal Procedure Code, which has been marked as Exhibit 2 though he has stated that that he had no knowledge about the death of Iliyas. This witness has also been 8 declared hostile by the prosecution and that he has denied the statement before the Magistrate in his statement under Section 164 of the Criminal Procedure Code that while he was grooming the garden and Mazar then he saw Md. Pipiya, Dular, Bablu and Mahmood taking the victim on shoulder. He has further stated that he stated before the Magistrate that statement was made under the fear or threat or Daroga and he has given in writing before the Chief Judicial Magistrate that the said statement was given at the instance of Daroga and the fact is that he has not seen the occurrence. Hence, P.W. 6 has also not supported the prosecution case regarding the occurrence and though has stated that he made statement under Section 164 of the Criminal Procedure Code which has been marked as Exhibit 2, but, the statement under Section 164 of the Criminal Procedure Code can not be taken as substantive piece of evidence and can not be relied when this witness has reiterated and, hence, is not a valid piece of evidence to be relied. 12. P.W. 4 is Bibi Hajra. She is mother of the deceased. She has stated that there was quarrel between her son and Pipiya and after 3-4 days of the said quarrel Pipiya, Gulab and Asmat took away the deceased. However, for the first time, her evidence has been set about the last seen when this witness has come forward to say the date and time of occurrence. In cross examination her attention has been drawn with regard to her earlier statement and she has stated that she has not stated before the police in her earlier statement that Pipiya, Mahmood and Asmat had taken her son. She has, further, stated that at that time when his son was missing 9 she did not inform the police and the case was only filed after three days when the dead body of the deceased was found and no intimation was given to the police in between the missing of the boy and the dead body having been found in the well. However, this witness stated that three accused persons came at about 07.30 p.m. and took the deceased. 13. P.W. 7 in his evidence has stated that he returned to his house at about 06.30 p.m. and asked about Iliyas then P.W. 6 stated that Pipiya, Gulab, Asmat, Bablu, Dablu @ Dhumal and Mahfooz had come and took Iliyas and whens the mother of Iliyas went out in search and asked about those appellants then they disclosed that his son has gone to cinema. However, he has stated in his evidence that he has not stated before the police that Pipiya, Asmat and Gulab have called his son from his house and he has not stated, as such, before the Daroga. He has further stated that Daroga has taken his statement again and his attention has been drawn that in his earlier statement he has stated before the Daroga that the mother of Iliyas has disclosed that Pipiya, Gulab and Asmat have taken the deceased and the investigating officer in his statement has stated in paragraph 15 that the informant in his fardbeyan did not alleged about the evidence of appellants in kidnapping and murder or even did not throw doubt. He has further stated that the informant has not stated that any witness has seen his son going out with any accused persons after his meal and neither any witness saw nor stated to the informant. Hence, the evidence of Shamshuddin that his wife disclosed about the deceased was 10 seen going with Pipiya, Gulab and Asmat is contrary as per the attention drawn and the evidence of the investigating officer. 14. However, the prosecution case, as alleged, in the fardbeyan by the father of the deceased that his son went out after taking meal at about 07.30 p.m. did not state anything about his son having went along with Pipiya, Gulab and Asmat. The occurrence took place on 22.01.2003 and the dead body was found on 24.01.2003. However, in between 22.01.2003 to 24.01.3002 no information was given to the police. Had there been a case that the accused persons had come and taken the deceased, the mother must have been reported to the Police Station. However, it has come in his evidence that just after the occurrence the search was made and the mother of the deceased met with the deceased and they disclosed that he had gone to cinema then it is not the case that the deceased was not found, but, they were present in the village and met with the matter of the deceased. 15. Hence, the evidence of P.Ws. 4 and 7 does not inspire confidence about the last seen or the evidence that the police were seen along with the deceased on 22.01.2003. This fact has neither been mentioned in the first information report and appears to have been developed during trial or during investigation of the case and there is no cogent and reliable evidence about the last seen of the appellants with the deceased on 22.01.2003 16. P.W. 5 is the witness on the inquest report and his signature on the inquest report has been marked as Exhibit 1/1. 11 17. P.W. 8 is the investigating officer, who has found the dead body taken out from the well and prepared the inquest report and found the hand of the deceased tied with muffler and injury on the neck. However, the death of the deceased has not been challenged though he has stated that the appellants were arrested and gave their confessional statements before the police, which has been marked as Exhibit 5, but, the confession before police is not admissible in the eye of law. However, he stated that statements of Zahid and Farhan, P.Ws. 3 and 6 were recorded under Section 164 of the Criminal Procedure Code. However, P.Ws. 3 and 6 have turned hostile and have not supported the prosecution case rather they have stated that there statement under Section 164 of the Criminal Procedure Code was recorded under the threat and pressure. 18. Hence, having regard to the facts and circumstances, there is no eye witness to the occurrence and P.Ws. 3 and 6 who were set up for being eye witness has not come forward to support the prosecution case and their statements recorded under Section 164 of the Criminal Procedure Code was taken under threat and pressure of the police and the informant. They have not supported the prosecution case. Their evidence under Section 164 of the Criminal Procedure Code lost it’s significance, which have been proved as Exhibits 1 and 2. However, the Magistrate has not been examined to prove the statement under Section 164 of the Criminal Procedure Code and the signatures of these witnesses are only on record and, hence, the statement under Section 164 of the Criminal Procedure Code has lost it’s significance as stated under Section 164 of the 12 Criminal Procedure Code has only corroborative and can not be taken as substantive piece of evidence. 19. However, the first information report was lodged by the father of the deceased in which he has not stated or whispered anything about the last seen whereas the fact is that the deceased son was missing since 22.01.2003 and after the recovery of the dead body on 24.01.2003 when the fardbeyan was lodged, there is no mention about the last three days. When it is stated that they were searching the deceased since 22.01.2003, but, has not stated this fact rather it has been stated that they have no doubt on any person and, hence, under such circumstances the evidence about the last seen and the evidence about the fact that the deceased was seen along with the appellants is neither found to be reliable or trustworthy and, moreover, the theory has been developed that they were last seen, but, no motive has been given and though it has been stated that the murder was done for the fact that this deceased was seen with the appellants having illicit relation with a girl. However, this fact has also not been established and nothing has been established to show that a chain of circumstance completed to show the guilt of the accused beyond reasonable doubt. However, neither fact has been proved of last seen of the appellants with the deceased has been established beyond reasonable doubts not any other circumstance or motive even proved to conclude about circumstantial evidence and, hence, we find and hold that the prosecution has not been able to prove the charges beyond reasonable doubts. However, the learned lower Court has convicted the accused 13 persons on mere conjuncture and surmises without any evidence against the accused persons for their implication in the crime and, hence, the judgment and order of the learned lower Court is hereby set aside. 20. The Death Reference is answered in negative. The Appeal is allowed and the impugned judgment and order be set aside. The conviction and sentence passed against the appellants be annulled and they are set at liberty forthwith, if not required to be detained in any other case. (Shyam Kishore Sharma, J.) ( Gopal Prasad, J. ) The Patna High Court, The 11th day of May, 2010, N.A.F.R./S.A.