CRIMINAL APPEAL No.292 OF 1988 (Against the judgment and order of conviction dated 25th of May, 1988 passed by Sri Tarkeshwar Narain, 9th Additional District & Sessions Judge, Munger in Sessions Case No. 603 of 1982). 1. SUDHEER YADAV, son of Baso Yadav 2. KAILASH BEHARI SINGH, son of Bhubneshwar Singh 3. ACHUTANAND SINGH, son of Bhubneshwar Singh 4. BHUBNESHWAR SINGH, son of Banwari Singh All residents of Parbhava P.S. Tarapur District Munger ………..(Appellants) Versus The State of Bihar ……….(Respondent) For the Appellants : Sri. Ashwini Kumar Sinha, Adv. For the State : Susri Shashi Bala Verma, A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON'BLE SRI JUSTICE DINESH KUMAR SINGH ********* Dharnidhar Jha & Dinesh Kumar Singh, J.J. The present appeal is on behalf of the four appellants who were tried and convicted of charge under Section 302/34 of the Indian Penal Code in Sessions Trial No. 603 of 1982 by the 9th Additional District & Sessions Judge, Munger by judgment delivered on 25.05.1988. By the impugned judgment the learned Sessions Judge directed each of the aforesaid four appellants after finding them guilty for committing the offence to suffer rigorous imprisonment for life. 2 Written report of P.W. 2, Rupan Singh is the basis upon which the prosecution case was instituted by drawing up the F.I.R. Exhibit-3. It was stated in the written report(Exhibit-2) by P.W. 2 Rupan Singh that the four appellants caught and captured the deceased Ganesh Singh, his nephew and took him to a field and at the orders of appellant Bhubneshwar Singh put a live electric wire in touch with his body and thereby killed him. It was alleged that the offence was committed on account of the old enmity between the informant’s family and those of the appellants. P.W. 4, S.I., Rajmohan Prasad was the Officer-in-Charge of Tarapur Police Station. On 16.08.1981, he received the written report and drew up the F.I.R., Exhibit-3 and thereafter investigated into the allegations. He came to the place of occurrence and found the dead body lying on the Varandah of Bhubneshwar Singh from where was the entrance to the houses of both Bhubneshwar Singh and Arjun Singh. The dead body was naked and it was covered by an old cloth. Inquest report was held upon it and a report, Exhibit-4 was prepared. The dead body was sent for postmortem examination to Munger Sadar Hospital. The I.O. of the case has stated that he recorded the statements of the 3 witnesses ahead of sending the dead body for postmortem examination. It may be pertinent to note that at the place of occurrence which was said to be a field, there was no mark of scuffle or any violence nor it was the field as may appear subsequently being told by P.W. 2., the informant in his evidence, as the place where the deceased had been murdered in the manner as alleged by him. The defence of the appellants was that, they had falsely been implicated on account of serious enmity between the parties and further that nobody had indeed seen the occurrence taking place and probably the deceased might have walked over and come in contact with a live electric wire and might have been killed on that account. Finding the opportunity, the informant and others implicated the appellants falsely. Five witnesses were examined by the prosecution in support of the charges. P.W. 1, Kishun Singh is the father of the deceased Ganesh Singh and is the full brother of the informant. P.W. 2 Rupan Singh is the informant himself and as pointed out by us, he is the uncle of the deceased. P.W. 3 Samrathi Prasad Singh, who has also supported the occurrence 4 as an eye witness appears to us yet another person who could be interested in the informant’s family as appears stated by him in his evidence at paragraph 5 which may indicate that the daughter of one Mast Ram was the daughter-in -law of the informant Rupan Singh and the said Mast Ram is the maternal cousin of P.W. 3, Samrathi Prasad Singh. The doctor was not examined nor the postmortem report was brought legally on record and in spite of that the learned Judge went on to convict the appellants as indicated above. It was contended by Sri. Ashwini Kumar Sinha, learned counsel appearing for the appellants that the story being of forcibly electrocuting the deceased, it was extremely within the fitness of things that the opinion of doctor ought to have been brought on record in support of the said manner of occurrence. It was contended that during the course of postmortem examination the doctor appears not finding the real cause of death and had preserved the viscera and sent the same for its analysis to the F.S.L. but no report was available till date as to what had really been detected after the analysis of the viscera. It was contended that the above facts go to dispute the prosecution claim that deceased Ganesh Singh 5 had been electrocuted forcibly by the appellants by giving electric shock. As regards the evidence of the witness, it was contended that the claim of P.W. 2 in his written report Exhibit 2 that he had seen the occurrence or had picked up the voice of appellant Bhubneshwar Singh appears not true in as much as his own evidence in paragraph 6 at page 14 of the Paper Book renders him as not an eye witness. Besides, the written report does not indicate that any one could be an eye witness to the occurrence other than the informant himself. Susri Shashi Bala Verma has conceded to the fact that there could not be any reason to accept the evidence of the witnesses as in the background of serious enmities they appeared motivated to implicate innocent persons. Enmity is admitted by P.W. 1 and P.W. 2 both. P.W. 1 has stated in paragraph 4 that one of his brothers Basuki had been murdered and in that murder trial some of the appellants like Bhubneshwar Singh and Kailash Singh were accused. In that case judgment of acquittal was passed by the learned trial Judge and the above named appellants and other accused persons were acquitted. It was next stated by P.W. 1 in paragraph 5 that one Krishna Kumar had 6 also been murdered and on that trial, for the murder of Krishna Kumar the deceased Ganesh Singh and his full brother Sushil Singh., besides the informant Rupan Singh and his two sons were tried as accused in which appellant Kailash Singh, one Tidho and appellant Sudhir Singh had deposed as witness and that ended in an order of conviction and accordingly, the informant and others were convicted and sentenced. This appears admitted by P.W. 2, informant in his deposition at paragraph 2 besides in paragraph 9. Thus what appears to us is that the enmity and bad blood between the parties stand admitted. In this background the allegation is being slapped upon the appellants of capturing the deceased and then taking him to a field as may appear from the evidence of P.W. 2 and then putting him to the shock of live electric wire so as to electrocute him. P.W. 2 the informant appears stating in his evidence in paragraph 6 that the occurrence took place when he and the deceased were moving so as to attaining their respective call of nature. The deceased was ahead of him and the informant was almost following him when the appellants captured the deceased. The evidence of P.W. 2 in the same paragraph at page 14 of the Paper Book gives an 7 impression as if the field in which the deceased was taken by the appellants was transplanted with paddy. Thus we could safely assume that the field would be bearing mud and water. It is the scientific principle and experience as well that water is a good conductor as regards electric power. If any live wire had broken down and fallen in a field as might be the field in which the deceased had gone in to, then it could not be any matter of surprise that the whole field could be acting as a high power electric field and if someone walks into it and gets in touch with it, one could be killed. This is one aspect of the matter. The other aspect which has very much influenced our minds is that the evidence suffers from one of the rare improbabilities on account of the ordinary human experience and conduct. The case of the prosecution is that the deceased was captured and he was forcibly taken to a place and was administered electric shock and killed. There was an order from appellant Bhubneshwar Singh to do that and thereafter the live electric wire was brought in touch with the body of the deceased. We could safely assume that the deceased, if he was free from the clutches of the appellant, would never allow himself to be killed in a manner as there is no evidence on 8 record that he had been assaulted and had been made immobilized. It could safely be assumed under the above background that the accused persons were still having the hold of the deceased when one of them was putting live electric wire in touch with any part of the body of the deceased. Human body being a good conductor always acts as such and whoever comes in touch with a person or a subject which is in touch with a live electric wire will automatically be electrocuted. If the appellants had remained touching as appears in the case, then there is no reason for the appellants to survive, they could have very well been electrocuted when the deceased had been electrocuted. This is the most inherent improbability which appears to us making the whole evidence unreliable. The other factor which makes the entire prosecution case suspect and not acceptable is that there is a complete lack of medical opinion as to what was the cause of death and at best that death was caused on account of the electric shock and the deceased being electrocuted in the manner as was alleged by the prosecution. There are many other shortcomings also like, the I.O. did not find any sign of struggle. He also 9 did not find any trampling mark or any mark which could have been left on account of dragging of the deceased to the field. It is our ordinary expectations considering the ordinary natural events which could occur on account of the manner in which the deceased was captured and was dragged in to the field. Lack of those marks and findings of P.W. 4 creates another big void and infirmity in the prosecution case. So far as the claim of P.W. 2 of seeing the deceased being captured and thereafter being taken to a particular case for being electrocuted is concerned, we find from his own evidence at paragraph 6 at page 14 of the Paper Book as if he had reached the place where the dead body was found lying after 10 to 15 persons had already arrived there. As such his claim that he was following the deceased or that he saw him being captured and thereafter being taken to a particular place does not appear to us a true statement made by him. The conduct of the informant on other parts of the occurrence also convinces us that he might not be an eye witness. He claims himself to be an eye witness. The occurrence was taking place in his presence and before him but he says that he did not raise any hulla and further 10 that after the occurrence had happened he did not go to inform the family members of the deceased who were none else than his own family members. Again, when the police reached at the place of occurrence, he was maintaining a stony silence and was not divulging the description of the occurrence to them. He was ultimately reaching to the police station with a written report which was drafted by P.W. 5 to be present to the Officer-in-charge of the police station projecting himself as the solitary eye witness. The delay by which he was reaching the police station was of five hours. Those five hours could be enough to deliberate upon the situation and then to weed out a story to implicate appellants who were his enemies. On the discussions of the evidences which we have made just now, we find that it was not a case in which it could be said that the manner of occurrence was probable rather it was inherently improbable as there was no eye witness to the occurrence as appears from the evidence of P.W. 2 himself and in view of the above evidence the appellants deserves to be acquitted. Accordingly, we allow the appeal and set aside the conviction and sentence passed upon each of the appellants and acquit the four appellants. The 11 appellants are on bail. They are discharged from the liabilities of their respective bail bonds. Patna High Court Dated the 8th July, 2010 Shageer/NAFR (Dharnidhar Jha, J) ( Dinesh Kumar Singh, J.)