CRIMINAL APPEAL No.374 OF 1994 ---------- Against the judgment and order of conviction passed by Shri Vikramaditya Prasad, Ist Additional Sessions Judge, Gaya in Sessions Trial No. 427/86 / 29/88 dated 22.7.1994/25.7.1994 ------------- 1. Rajendra Paswan, son of Basudeo Paswan, resident of village – Harenkel, P.S. – Imamganj, District – Gaya 2. Raj Kumar Paswan, son of Mahabir Paswan, resident of village – Kaudia, P.S. – Gura, District – Gaya ……………Appellants Versus State Of Bihar …………Respondents --------- For the Appellants : S/s Shakeel Ahmad Khan, Senior Advocate, Arun Kumar No. II, Sajid Salim Khan, Advocates For the State : Shri Jharkhandi Upadhyay, APP --------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE BIRENDRA PRASAD VERMA ----------- Dharnidhar Jha & B.P. Verma, JJ. There are two appellants in the present appeal who were tried by the learned Ist Additional Sessions Judge, Gaya in Sessions Trial No. 427 of 1986 / 29 of 1988 for a composite charge under sections 302/34 of the IPC along with three other accused persons. The learned Judge delivered his verdict on 22nd July, 1994 and while acquitting accused Jogia Paswan, Barat Mahto and Idrish Mian of the charge 2 framed against them, held the two appellants guilty of committing offence under sections 302/34 of the IPC. 2. The appellants were heard on sentence on 25.7.1994 and each of them was directed to suffer rigorous imprisonment for life for having committed the above offence. The appellants have brought into question their conviction as recorded by the learned judge. 3. The short facts are that the deceased Deepak Kumar was the grand son of the brother of the informant Yugal Kishore Sao, (P.W. 7) and had fled from his house about ten days prior to 8.4.1983. However, the deceased Deepak came back to his house in the night intervening 7th and 8th April, 1983 and went to village Asantaliya with his sister and from there he strayed away again telling his sister that he had some urgent business to attend to. The deceased was seen in the night intervening 7th and 8th April, 1983 in the house of appellants Rajendra Paswan and Raj Kumar Paswan by one of the co-villagers of the informant, namely, Nanku Paswan, P.W. 1. It was stated that P.W. 1 inquired from the 3 deceased as to why he was there and why he had not gone to his house upon which the deceased is said to have given out to P.W. 1 that he should mind his own business as the deceased was busy with some other important works. The deceased, as such, remained in the house of the appellant Rajendra Paswan and did not come back home as he had left the house without any rhyme or reason which could be in the knowledge of the informant and other family members. The informant further stated that the deceased was further seen in the company of the appellants by the village chowkidar (P.W. 4, Bishun Choudhary) till one day before the lodging of the report. 4. The informant stated that early in the morning on 8.4.1983, he came to know that a dead body was floating in the river water and the informant being Mukhia of the village, went to verify the truthfulness of the information and found that it was that of his grand son Deepak Kumar. The informant stated that the deceased had about rupees one thousand with him and, as such, the accused persons with the help of 4 some others had murdered him for taking out the money from his possession. The inference about the theft of money was drawn by the informant under the reasoning that the clothes, i.e., payjama and a shirt which had been put on by the deceased, was not found on the dead body. 5. The FIR was drawn up by the police on the statement of P.W. 7 and the investigation was taken up by P.W. 9, Madhav Ram Bhargav. He went to hold an inspection of the place of occurrence which was found by him to be the river side which was flowing from west to east. The bank of the river was about 10 ft. high from water level and P.W. 9 found a dead body lying there where copious blood was also found by him. The dead body was, in fact, in water and that was retrieved from it for holding inquest and preparation of the inquest report, Ext. 8. The Investigating Officer seized the blood stained earth by preparing the seizure memo, Ext. 1 and recorded the statements of various witnesses. He sent the dead body for postmortem examination and after completing 5 the investigation, submitted charge sheet sending up the accused persons for trial. 6. The defence of the appellants and other accused persons was that they had not participated in commission of the offence and further that the deceased had never been in their company and the appellants and other accused persons have been falsely implicated on account of animosity. This may appear from the suggestion given to P.W. 7 in paragraph 6, appearing at page 41 of the paper book. 7. The prosecution examined a total of nine witnesses in support of the charge. P.W. 1 Nanku Paswan is a witness who has stated about seeing the deceased at the house of the appellants and again not finding him on the date of occurrence at about 4 P.M. P.W. 2 was declared hostile. P.W. 3 Raj Kishore Prasad is a witness to the inquest report. P.W. 4, Bisun Choudhary was again declared hostile on account of not supporting the prosecution case. P.W. 5 Nand Lal Prasad was the father of the deceased and he has stated that his son Deepak Kumar left his 6 house and was seen at the house of the appellants and that the dead body was recovered in his presence. He also produced a letter which was allegedly recovered by P.W. 9 from the house of appellant Rajendra Paswan which has been marked Ext. 3. P.W. 6 Dr. Kapildeo Prasad had held postmortem examination on the dead body of Deepak and had prepared the report, Ext. 4. P.W. 7, as already stated, is the informant of the case. P.W. 8 Ram Kumar Prasad Sharma was an employee of Magadh Grameen Bank and he produced specimen signature kept in the branch of the deceased for comparison with the writings of Ext. 3. P.W. 9, as just pointed out, was the I.O. of the case. 8. After considering the evidence available on record, the learned trial judge recorded the finding of guilt against the appellant and passed the sentence as indicated at the very outset of the present judgment. 9. We have heard Shri Shakeel Ahmad Khan, learned senior counsel for the appellant Raj Kumar Paswan and Shri Arun Kumar II, learned counsel for the appellant Rajendra Paswan in the present appeal. It was 7 contended by learned counsel for the appellants that while convicting the appellants, learned trial judge formulated as many as six circumstances, which, to him, were required to be established for holding the accused persons guilty. The learned judge went on to record his findings on the proof of those chains of circumstances and accepted the evidence creating circumstances nos. 1, 4 and 6, as appears formulated by him in paragraph 9 of the judgment. The above chains of circumstances were as follows: “ 1. The deceased used to work on monthly salary and he had come back leaving the job and had money about Rs.1000/ with him. 4. The deceased was seen alive in the company of the accused till early hour of night of 7-4-83 in the following morning of which the dead body was recovered. 6. The accused absconded after the alleged crime was detected.” 10. It was contended that on scrutiny of the evidence the court may find that the motive for the commission of the offence was not established and as such the most important of the chains creating the circumstances was not established. It was contended that in a case which is purely based on the circumstantial evidence, the proof of motive is 8 sine qua non. As regards the deceased being seen last with the appellants, learned counsel for the appellants took us through the evidence of P.W. 1 whose evidence is the only material evidence for the purpose and showed to us that that particular chain was also not established. As regards the abscondance of the accused persons, the learned counsel contended that there could be many good reasons for the appellants to evade the police including the one that they had been falsely implicated in a case which could have necessitated it for them to secure themselves so that their personal liberties were not violated. 11. Shri Jharkhandi Upadhyaya, learned Additional Public Prosecutor, in his fairness, submitted that the chain of circumstances does not appear complete so as to pointing out towards the guilt of the accused after eliminating all reasonable theories of innocence of the appellants. 12. Before we proceed to appreciate the evidence so as to finally scrutinizing the argument, we want first to have a resume of the law on proof of chains by circumstantial evidence. We do not want to make 9 reference to a huge number of decisions which may be available to us in any law report of one particular year. We simply want to refer to AIR 1984 Supreme Court 1622 Sharad Birdhichand Sarda vs. State of Maharashtra. It was a case in which the husband had been condemned to death under the allegation that he had poisoned his wife to death by administering potassium cyanide. The defence of the accused was that the deceased was a bit frustrated and depressed on account of having not got her dreams of a married life fulfilled and, as such, she could have committed suicide. The trial court had, as noted just now, condemned the accused to death while holding him guilty for killing his wife. The reference under section 366 Cr.P.C. was accepted by the High Court and it confirmed the sentence passed upon the appellant Sharad Birdhichand Sarda. The whole evidence was reviewed by the Supreme Court on various principles of criminal jurisprudence and when it came to discussing circumstantial evidence leading to the conclusion of guilt after excluding all the hypotheses of innocence, the Apex Court perused 10 almost all the leading cases rendered by them on the point and, ultimately, laid down the proposition in paragraphs 151 and 152 of the report. We are tempted to quote those two paragraphs: “151. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant V. State of Madhya Pradesh, 1952 SCR 1091 : (AIR 1952 SC 343). This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail V State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal Vs. State of Maharashtra, AIR 1972 SC 656. It may be useful to extract what Mahajan, J. has laid down in Hanumant‟s case (at pp. 345-46 of AIR(supra) : “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned „must or should‟ and not „may be‟ established. There is not only a grammatical but a legal distinction between „may be proved‟ and „must be or should be proved‟ as was held by this Court in Shivaji Sahebrao Bobade V. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622 where the following observations were made: “certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the 11 mental distance between „may be‟ and „must be‟ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possibility hyphthesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 13. The first link of the chain of circumstance was that the deceased Deepak was seen last with the appellants at their house. The informant has stated in his FIR that it was Nanhku Paswan who had rendered this information to him in the day, in the night of which the deceased probably was killed. Said Nanhku Paswan was examined in the trial as P.W. 1. He has stated in paragraph 3 that he had gone to bring a particular article from the house of one Lakhan of his village and he saw the deceased at the residence of appellant Rajendra Paswan. At that time, the deceased Deepak Kumar was talking to appellants and accused Barat Mahto. The witness requested the deceased to accompany him to his house but he said that he should mind his own business. The witness 12 again came back to return the borrowed article, but he did not find Deepak at the residence of the appellant. He stated that he informed the informant about seeing the deceased at the house of the appellants. In cross examination in paragraphs 3 and 4, P.W. 1 has stated that when he did not find the deceased at residence of the appellants after 12 P.M. and at about 4 P.M. he made enquiry from appellant Rajendra Paswan as to where the deceased had gone, upon which, Rajednra stated that he has gone to his house. This enquiry was made by P.W. 1 as may appear from the contents of paragraph 3 of his evidence at about 4 P.M. when he found that the appellant Rajendra was there but the deceased was not there and as such he had made enquiry from appellant Rajendra. This is the solitary witness who had seen the deceased at the house of the appellant. P.W. 7, the informant was not the eye witness to the deceased being found at the house of the appellants or decease disappearing from there at any point of time. P.W. 7 has admitted that it was from P.W. 1 that he had learnt about those facts. 13 14. Now the evidence of P.W. 7, the informant of the case, who was a highly responsible person not only of his family but also of his village on account of being Mukhia of the village, is that Deepak was a frequent flier from his house. This fact appears from paragraph 2 of the evidence of P.W. 7. The family members appear recognizing the above conduct of the deceased as a concluded fact so much so that they did not even care to trace him out or to go in search of him. This appears from some paragraphs of the evidence of P.W. 7 when he stated that when Deepak had run away from his house four months ago, none had gone in search of him. This fact is supported by P.W. 1, Nanhku Paswan who is admitted by P.W. 7 as one of his servants as may appear from his evidence at page 41 of the paper book. P.W. 1 is supposed to know the affairs of the house of P.W. 7 quite well. P.W. 1 has stated in paragraph 4 of his evidence that the deceased had run away from his house on 3-4 earlier occasions also and he used to come back sometimes in fifteen days and sometimes in a month. His evidence in paragraph 4 at page 9 14 indicates that on that particular day he had not seen the deceased in the company of the appellants after 12 A.M. Thus, we find that the finding of the learned trial judge that the deceased was seen last in the company of the appellants was not borne out from the evidence available on record. 15. We have no hesitation in recording our finding that the deceased was in habit of frequently running away from his house and on that particular occasion also he appears deserting his house without any rhyme or reason as he used to do on earlier occasions and this behaviour of the deceased had created an attitude of indifference towards him in his family members so much so that they had become quite bit habituated to the deceased disappearing from the house and had developed an attitude of carelessness towards his above conduct. We, as such, may record that may be that the deceased had abandoned his house and had moved into some other company from the house of the appellants. This might be a 15 probability as he was not seen by P.W. 1, the star prosecution witness after 12 A.M. on the fateful day at the house of the appellants. 16. Thus, we would find that the most important link in the chain of circumstances was not established by satisfactory and acceptable evidence. 17. As regards the motive of taking away rupees one thousand from the possession of the deceased, we must firstly record that there was no acceptable evidence before the learned trial judge that indeed the deceased had rupees one thousand in his possession. P.W. 7 has stated that he was told by his grand daughter who was probably the sister of the deceased, that the deceased had rupees one thousand in his possession. This evidence comes from P.W. 7 in paragraph 1 of his evidence at page 35 of the paper book. This is also available to us from his evidence (paragraph 5 at page 40 of the paper book). That grand daughter of the informant was never examined as witness so as to show as to from where she could gather the knowledge about the deceased being possessed of 16 rupees one thousand. The deceased was a vagabond. Once in his vagrant career he appears, as per P.W. 7, engaged in some sort of work, what was the proximity of that employment of the deceased to the date of his murder, it has not been established by acceptable and reliable evidence. The deceased, as we have just noted, was not only a vagabond but appears a bit of a liability for his family as none in his family was having any concern for him. Neither P.W. 7 nor the father of the deceased, P.W. 5 has stated that he had given a particular sum of money to the deceased. It appears to us within the realm of conjecture to note that the deceased had rupees one thousand in his possession. If it could be doubtful that the deceased had the above sum of money with him, then the very allegation that he was murdered either after being relieved of the money or in order to be relieved of the money, appears a question not existing any longer. We find that the finding of the learned trial judge that the motive for the occurrence was established also appears not borne out of the evidence. 17 18. As regards the abscondance of the accused persons from their house, it is too well known to be reiterated that the abscondance of an accused from his residence or habitat is not a circumstance in itself sufficient enough to convict him. The circumstances establishing the guilt of the accused by overruling the theories of his innocence have to be established by chains after linking them together so as to forming a complete chain which could be indicating towards the guilt of the accused persons. If the chain of circumstances is complete by various links and it is established that the offence could be authored by the accused persons, then only the circumstance of abscondance could be one of the additional links of the chains creating a complete chain of circumstances. As was rightly contended by Shri Jharkhandi Upadhyaya, every one has a right of securing his liberty. No one wants to be arrested and humiliated even for real offences. Every one wants to have the protection of law and justice and till he gets it, it is not unknown that one makes all attempts to avoid being arrested and being paraded through the 18 lanes of his domain. Personal liberties could be as valuable as any property or personal possession. Accused persons were named in the FIR, it would have gone into their ilaka like a wild fire that they are arrayed as accused on allegation of having murdered the deceased. The very information could have sent shudder down their aorta and, as such, they had very strong reasons to conceal themselves from the claws of law enforcing agencies. 19. In the above background, if the appellants were found absconding from their residence, we do not see it as a circumstance for enforcing the finding of guilt. We rather hold that it was no circumstance for enforcing the guilt of the appellants. 20. After having discussed the evidence and after having scrutinized the findings recorded by the learned trial judge, we find that those are not sustainable and appear a bit half heartedly recorded. We are of the view that no longer any chain of circumstance was completed by 19 acceptable and material evidence. The finding entitles the two appellants to acquittal. 21. We, as such, allow the present appeal and set aside the conviction and sentence recorded and passed against them by acquitting them. The two appellants are on bail. They shall stand discharged from the liabilities of their respective bonds. (Dharnidhar Jha, J.) (Birendra Prasad Verma, J.) Patna High Court. The 25th February, 2010 NAFR/Anil/