Criminal Appeal (D.B.) No. 312 of 2004 With Criminal Appeal (D.B.) No. 359 of 2004 **** Against the judgment and order, dated 20th April, 2004, passed by Additional Sessions Judge, VII, Munger, in Session’s Case No. 172 of 1993 **** Md. Irshad @ Irshad, S/O Md. Ramjani Miya, R/O village Parham, P.S. Naya Ram Nagar, district Munger .. Appellant (in Cr. Appeal (D.B.) No. 312/04) 1. Abdul Gaffar @ Md. Gaffar, S/O Md. Anul 2. Md. Sahjad, S/O Md. Nayimuddin, both residents of village Parham, P.S. Naya Ram Nagar, district Munger .. Appellants (in Cr. Appeal (D.B.) No. 359/04) Versus The State of Bihar .. Respondent (in both the Appeals) **** For the appellants .. M/S Nasrul Hoda Khan, Md. Naushaduzzoha & Suman Kr., Advs. For the respondent .. Mr. Ashwini Kumar Sinha, A.P.P. **** 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. These two Appeals, i.e., Cr. Appeal (D.B.) No. 312 of 2004 has been preferred by Md. Irshad @ Irshad and Cr. Appeal (D.B.) No. 359 of 2004 has been preferred by Abdul Gaffar @ Md. Gaffar are 2 being heard together and disposed off by this common judgment as both the Appeals arise out of the order, dated 20.04.2004, passed in Session's Case No. 172 of 1993. 2. All the appellants have been convicted under Sections 302/34 of the Penal Code and 27 of the Arms Act. However, the appellants have been sentenced to undergo rigorous imprisonment for life and a fine of Rs.1000/- each and for non-payment of fine they have been ordered to undergo rigorous imprisonment for one month, however, no sentence has been awarded for offence under Section 27 of the Arms Act. 3. The prosecution case, as alleged in the fardbeyan by the informant, Most. Sanno Khatoon, that on 06.12.1992 at about 10.00 p.m. the co-villagers, Gaffar, Irshad and Sahzad, came to her house and called her son, Haider Ali, but, her son did not return in the night then she made some enquiry in the village, but, could not ascertain and, hence, she got slept. However, in the morning at about 09.00 a.m. there was a rumour about the dead body of her son, Haider Ali, in the field (bahiyar) with a fire arm injury and then the informant, along with her family members and co-villagers, went to the bahiyar and found the dead body of her son. The fardbeyan was recorded at the place of occurrence in the bahiyar. The fardbeyan was made on 07.12.1992 at 10.15 hours on the basis of which the first information report was lodged on 07.12.1992 and the first information report was sent to the Magistrate on 07.12.1992, itself. After recording the fardbeyan the investigation proceeded and after investigation the charge sheet was submitted, cognizance taken and the case was committed to the Court 3 of sessions and after commitment the charges were framed under Section 302/34 of the Penal Code and 27 of the Arms Act. 4. During the trial eight witnesses were examined on behalf of the prosecution, they are P.W. 1, Most. Rabo, P.W. 2, Most Sanno Khatoon, P.W. 3, Rajniti Mandal, P.W. 4, Md. Mahtab Alam, P.W. 5, Md. Mokim, P.W. 6, Narendra Prasad, P.W. 7, Dr. Sudhir Kumar, and P.W. 8, Ram Krishna Sharma. The documentary evidence, adduced on behalf of the prosecution are Exhibits 1 and 1/1, signatures of Rajniti Mandal and Md. Mahtab on inquest report, Exhibit 2 is the first information report, Exhibit 3 is the fardbeyan, Exhibit 4 is the post mortem report, Exhibit 5 is the entire fardbeyan, and Exhibit 6 is the entire inquest report. 5. The defence has also adduced oral evidence. D.W. 1 is Shambhu Choudhary and D.W. 2 is Md. Raza. 6. After closing of evidence of prosecution the accused persons were examined under Section 313 of the Criminal Procedure Code and, thereafter, the case of the defence closed and after hearing the parties and considering the evidence the order of conviction is recorded against the appellants. 7. The defence of the accused persons is that they have not done the occurrence. The informant wanted to marry her daughter with Sahjad and on refusal they have falsely been implicated. However, the prosecution case is that the appellants came and took Haider Ali at 10.00 p.m. on 06.07.1992 and the dead body was found in the next morning at about 09.00 a.m in the bahiyar and there is no witness to the occurrence. P.W. 1 is the sister and P.W. 2 is the mother of the 4 deceased. The only evidence against the appellants is that P.Ws. 1 and 2 saw the deceased going along with these appellants. P.Ws. 3 and 4 have formally proved the inquest report. P.W. 5, though the maternal uncle of the deceased, has not come to support and has been declared hostile. P.W. 6 has formally proved the first information report and the fardbeyan. P.W. 7 is the doctor and P.W. 8 is the investigating officer. 8. P.W. 1 in her evidence has stated that on the day of occurrence at about 10.00 p.m. these appellants came and took her brother, Haider Ali (deceased), along with them and has identified the appellants in the dock though she has, further, stated that when her brother did not return then he along with her mother came out and search at the house of her maternal uncle. She has, further, stated that the motive for the occurrence is that accused Gaffar used to work as sipahi of Md. Azeem and Gaffar was replaced by her brother, the deceased, Haider Ali, by Md. Azeem. However, in her cross examination she has stated that Gaffar was not in service of Md. Azeem and she has, further, stated that all the appellants belong to three different families and there was no enmity between Haider Ali (deceased) and the three appellants. All the appellants used to eat, drink and roam together in the market and on the day when the appellants had come to call Haider, she had no doubt about their ill motive. Hence, from the evidence of this witness, it is apparent that though she saw the appellants came and took away the deceased, but, there was no ill motive, at all, attached and from her evidence it is apparent that Haider Ali and the appellants were friends. 5 9. P.W. 2 is the informant. However, she also supported the prosecution case that Haider Ali was taken away by the appellants and he did not return and in the morning she heard a hulla about the death of Haider Ali and his dead body having been thrown in bahiyar with fire arm injury and she has also stated the motive for the murder that Gaffar was earlier sipahi of Md. Azeem Pahalwan and Gaffar has been replaced by Haider Ali and so the occurrence. However, she has stated that she has not seen the occurrence and two persons have disclosed her about the killing of Haider Ali. She has, further, stated that her son used to go along with Md. Azeem in the field and whenever he used to go with Md. Azeem some times he used to return back in night and some times did not. She used to ask Md. Azeem not to call her son in the night, but, Md. Azeem used to call him by force as Md. Azeem had a business of fish and used to live near the fish. 9. However, there is no eye witness to the occurrence and the case hinges on the circumstantial evidence and the only evidence that the deceased, Haider Ali, last seen with the appellants at 10.00 p.m. as they came and called the deceased with them and the mother alleged that Haider was substituted as Sipahi of Azeem in place of Gaffar. 10. However, it is well settled that in case of circumstantial evidence the evidence forming the chain of circumstance should be of conclusive nature and the chain of circumstance so complete being no reasonable ground for conclusion of innocence of an accused it must be such as to show that within all human probabilities act must have been done by accused. 6 11. However, in this case the circumstances proved to be that the deceased was called by these appellants at about 10.00 p.m. in the night. The motive for the occurrence alleged to be that Haider Ali was appointed as sipahi of Md. Azeem in place of Gaffar. However, it has come in evidence that P.W. 1 is the sister of Haider and she has stated that Haider has no enmity with the appellants. All the appellants used to live with Haider and they used to eat, drink and roam in the market together and when the appellants had come to call Haider on that date also she and her family members had not doubt on them about the conduct or ill motiveand, hence, there was no enmity between the appellants and Haider. However, the evidence has been brought to bring a circumstance that the deceased was appointed as sipahi in place of Gaffar and this fact also not proved. However, the evidence of Md. Azeem has not been taken about this fact and, hence, this fact has not been established by cogent and reliable evidence. Moreover, there is suggestion that it was Md. Azeem under whom the deceased was in service as his sipahi, who had called him. 12. However, having regard to the fact that the deceased has replaced Gaffar and this was animus or motive, but, P.W. 2 in her evidence clear stated that they used to eat, drink and even move in the market together and there was no enmity between them and on the day when the deceased went along with the appellants they have no doubt upon the appellants about the occurrence and, hence, the only evidence remains that the deceased went along with the appellants as last seen. 13. However, having regard to the facts in a case of circumstantial evidence the conclusion for the guilty of the accused can 7 not be based solely on the basis of last seen when there is by time in between 10.00 p.m. to 09.00 a.m. when dead body recovered and the motive adduced is not being substantiated particularly in view of the fact that sister of the deceased has stated that there was no enmity between them and they used to eat, drink and roam together in market and there was no doubt about that Haider Ali gone with the appellants, but, the circumstance not conclusive hence, the chain of circumstance is not, as such, to conclude about the guilt of the accused in all given probabilities and, hence, we find and hold that the prosecution has not been able to prove the charges against the appellants beyond all reasonable doubts, hence, the conviction and sentence recorded by the learned lower Court against the appellants is hereby set aside and the Appeals are allowed. Since, all the appellants are in jail, they are directed to be released forthwith, if not required to be detained in any other case. (Shyam Kishore Sharma, J.) ( Gopal Prasad, J. ) The Patna High Court, The 20th day of July, 2010, N.A.F.R./S.A.