CR. APPEAL (DB) No. 200 of 1988 With CR. APPEAL (DB) No. 201 of 1988 ---- Against the judgment and order of conviction and sentence dated 19.04.1988 passed by Ist Additional Sessions Judge, Motihari in Sessions Trial No. 134/17 of 1979/84. ---- GORAKH SAHNI SON OF RAMGIR SAHNI RESIDENT OF VILLAGE LALBEGIA,P.O AND POLICE STATION CHIRAIYA, DISTRICT EAST CHAMPARAN ----- APPELLANT (in Cr.App.No. 200 of 1988) 1.BINDA SAHNI SON OF RAMGIR SAHNI 2.DASAIN SAHNI SON OF GORAKH SAHNI 3.RAMASHREY SAHNI SON OF GOPI SAHNI 4.HARIHAR SAHNI SON OF RAMGIR SAHNI 5.SURAJ SAHNI SON OF BIRCHHA SAHNI ALL RESIDENT OF VILLAGE LALBEGIA,P.O.& POLICE STATION CHIRAIYA,DISTRICT EAST CHAMPARAN ----- APPELLANTS (in Cr.App.No. 201 of 1988) Versus THE STATE OF BIHAR ----- RESPONDENTS (in both the appeals) ----- For the appellants : Mr.Uma Shankar Pd.Singh,Advocate (Amicus Curaie in both appeals). For the respondents: Mr.Ali Mozaffar, Addl.P.P. ---- P R E S E N T THE HON’BLE MR.JUSTICE SHYAM KISHORE SHARMA ---- S.K.Sharma,J. Both the above appeals were heard earlier by a Division Bench of this Court and both the Hon‟ble Judges recorded different findings and differed in their conclusion. One of the Hon‟ble Judges found the appellants guilty and affirmed the judgment of the trial court regarding conviction and sentence but another Hon‟ble Judge of the Division Bench found the appellants not guilty and hence the appellants were acquitted and ordered to be discharged from 2 the liabilities of their bail bonds. In view the difference in opinion, the matter has come up before me. Both the appeals have arisen out of a judgment and order of conviction and sentence dated 19th April, 1988 passed by Ist Additional Sessions Judge, Motihari in Sessions Trial No. 134/17 of 1979/84. Appellant Gorakh Sahani (Cr.Appeal No. 200 of 1988) has been found guilty under Section 302/34 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life and other appellants, namely, Binda Sahni, Dasain Sahni, Ramashrey Sahni, Harihar Sahni and Suraj Sahni (Cr.Appeal No. 201 of 1988) along with appellant Gorakh Sahni have been found guilty under Section 201/34 of the Indian Penal Code for disappearing the dead body and they have been sentenced to undergo rigorous imprisonment for a period of five years. The sentences of appellant Gorakh Sahni under Sections 302/34 and 201/34 were ordered to run concurrently. Before dealing with the matter, it 3 is necessary to record certain facts. The deceased of the occurrence, Chameli Devi, was wife of convict Dasain Sahni and daughter-in- law of convict Gorakh Sahni. Fardbeyan of Gagandeo Sahni was recorded at 7.00 P.M. on 18.09.1978 at village Ekona, P.S.Chiraiya, District East Champaran. In the farbeyan it was stated that he left village for Motihari at 6.00 A.M. and reached at the assigned place at 10.00 A.M. on the date of occurrence. One Cobbler informed that his daughter married in the house of Gorakh Sahni of village Lalbegia has been murdered by the appellants and one Jagarnath Sahni and the dead body was made to disappear. The informant rushed for village Lalbegia and reached there in the afternoon. One Jaleshwar Sahni of Lalbegia told regarding death of Chameli Devi. Before leaving the village Lalbegia for paternal house, the informant met Punyadeo Sahni, Sarpanch (P.W.2), Maheshwar Sahni, Mukhiya (P.W.3), Ganja Sahni (P.W.7), Jodhan Sahni (P.W.8). All the aforesaid persons told him that Chameli Devi has been killed by all the 4 accused persons whose names have been discussed above. The dead body of Chameli Devi was not traced out. Gorakh Sahni confessed before the informant regarding killing of Chameli Devi but refused the prayer of the informant regarding handing over the dead body of his daughter to him. The age of Chameli Devi as mentioned in the first information report is 20 to 26 years. She was issueless and her husband Dasain Sahni had illicit relationship with one of the daughter-in-laws of one Charaman Sahni of village Lalbegia. It was being objected by the wife of Dasain Sahni, so she was thrashed up repeatedly. Unholy relationship was within the knowledge of all the villagers including other appellants and the deceased. On the basis of said fardbeyan (Ext.2), first information report (Ext.1) was registered. After completing investigation, chargesheet was submitted under Sections 302 and 201 read with Section 34 of the Indian Penal Code. Cognizance was taken and the case was committed to the court of sessions for trial where charges were framed and explained to 5 the accused persons. They pleaded innocence. Hence trial proceeded. In order to prove its case, the prosecution examined altogether nine witnesses. P.W.1 Imtiaz Ahmad, a clerk of office of Public Prosecutor, was examined as a formal witness and he proved Exts. 1 and 2, namely, the first information report and the fardbeyan respectively. P.W.2 is Punyadeo Sahni, village Sarpanch of village Gram Panchayat. P.W.3 is Maheshwar Sahni, Mukhiya of the village Panchayat. P.W.4 is Mangal Sahni, a co-villager. P.W.5 is Jaleshwar Sahni. P.W.6 is Ekma Sahni. P.W.7 is Ganja Sahni.P.W.8 is Jodhan Sahni and P.W.9 is Mostt. Samundari Devi, the widow of the informant. The Investigating Officer was not examined. The informant was not examined because he died prior to his evidence. The dead body was not recovered, so neither any injury report nor post mortem report could be brought on record. I perused the judgment of the Division Bench. It appears that after analyzing the evidences, one of the Hon‟ble 6 Judges came to the opinion that it is a case of strong circumstantial evidence and after discussing the provision of Section 106 of the Indian Evidence Act regarding burden of proving fact especially within knowledge held that prosecution has been able to prove that the deceased was in the care, custody and possession of her matrimonial home. So the accused persons were the duty bound to explain the circumstances which led to her death. The defence could not put out even one suggestion to any one or the prosecution witnesses. So the prosecution was able to prove that death was within the knowledge of the accused persons and it was for them to prove as to how the death occurred. Reliance was placed upon a judgment dated 01.07.2008 of a Division Bench passed in Cr.Appeal No. 78 of 1988 (Bokan Singh and Ors.Vs.State of Bihar). While upholding the order of judgment and order of conviction and sentence, the Hon‟ble Judge came to the opinion that because the deceased was issueless, so she was being disliked by all on account of failure to provide a child to the family as 7 it is a common experience to the society to which the deceased or the accused persons belong. The Hon‟ble Judge has also discussed that accused Gorakh Sahni has confessed himself that a mistake was committed, so he should be punished. It was an extra judicial confession and it has been stated that the extra judicial confession was corroborated, so in view of the judgment reported in A.I.R. 1969 S.C.422 (Nishi Kant Vs.State of Bihar), the prosecution was able to prove the charge regarding homicidal death. Regarding non- explanation of death and the burden of proof, reliance was placed upon the decision of the Supreme Court reported in AIR 1957 S.C.211 (Pershadi Vr.State of Utter Pradesh) and also upon a Division Bench decision of Himachal Pradesh High Court reported in 1973 Cr.L.J.428 (Paras Ram Vs.State of H.P.). The chain of circumstances in the present case was found to be complete and so the Hon‟ble Judge dismissed both the appeals and affirmed the judgment of conviction and sentence. Another Hon‟ble Judge differed with the finding of the learned Brother Judge 8 because, according to him, there was no legal evidence to record for presumption of guilt as provided under Section 113B of the Indian Evidence Act which was applicable in the case of dowry death under Section 304(B) of the Indian Penal Code and not for offences Section 302 of the Indian Penal Code. The confession or the extra judicial confession could not be legally used against accused Gorakh Sahni as it was not proved by prosecution. The acquittal of other appellants namely, Binda Sahni, Dasai Sahni, Ramashrey Sahni, Harihar Sahni and Suraj Sahni, by the trial court under Section 302/34 of the Indian Penal Code established that the trial court has not believed the case of the prosecution in toto and it has disbelieved the major part of the prosecution version that the murder was committed by all the accused persons in furtherance of common intention. Heard the learned counsel for the appellants who has been appointed as Amicus Curiae to assist the court on behalf of the appellants and learned Additional Public 9 Prosecutor. P.W.4 Mangni Sahi and P.W.6 Ekam Sahni have stated in their evidence that they have seen the dead body of Chameli Devi under suspicious circumstances and at that time Gorakh Sahni and other appellants were present. P.W.6 has stated that he was at the distance of 1 ½ K.M. from village Akauna which is the village of P.Ws.4 and 6. These witnesses namely, P.Ws. 4 and 6 are not of the vicinity, rather they have seen the dead body and it was a chance and so they can be described as chance witnesses and it is not clear as to what was the circumstances of reaching P.Ws. 4 and 6 at the place of occurrence where they saw the dead body. P.W.4 has deposed that he had identified the dead body of Chameli Devi and when he wanted to make some query, then he was threatened by appellant Suraj Sahni. His evidence is only to the extent that he had seen the dead body but he has not seen any part of commission of murder. He has not stated that as to whether Chameli Devi was having any injuries upon her person. It was 10 his suspicion that Chameli Devi might have been killed. The onus of proving the guilt is always upon the prosecution and defence is not required to prove its innocence. P.W.6 initially heard some sound of whispers. He and P.W.4 came out from the river and saw the dead body of the daughter of Gagandeo Sahni. The accused persons namely, the appellants and one Jagarnath Sahni were present there. When he tried to make some query, then appellant Suraj Sahni threatened him. So he and P.W.4 kept mum. In the next morning, he went to inform Gagandeo Sahni but he was not there. So he informed the wife of the informant. If the evidence of P.W.6 is analysed, then it appears that he could not form any opinion with regard to the death of Chameli Devi. He was not knowing as to whether Chameli was murdered or she died of any ailment. He has not expressed his view about seeing any sign of mark of violence on the corpse of Chameli Devi. Both the witnesses namely, P.Ws. 4 and 6 have stated that they went to the house of informant Gagandeo Sahni and they found him absent. 11 Wife of Gagandeo Sahni has been examined as P.W.9 and she has stated that P.Ws. 4 and 6 had come to her house and informed about the death of her daughter. She has not stated that these witnesses have uttered any word regarding murder of Chameli Devi by the appellants. Not only that, they had not stated anything that they had seen the dead body being disposed of by any of the accused persons. Therefore, P.W.9 has not corroborated this part of the occurrence as stated by P.Ws. 4 and 6. The charge was framed under Section 302 of the Indian Penal Code and the onus was upon the prosecution to prove the guilt of the accused persons beyond all reasonable doubts. The presumption cannot be attached to the guilt of the accused which is available in a case of dowry death punishable under Section 304B of the Indian Penal Code. Merely because she was at her in-laws house, no presumption would go in favour of the prosecution that she might have been murdered. No charge under Section 302 of the Indian Penal Code can be proved on the 12 presumption of „might have been‟ murdered. The prosecution has to prove the case beyond all reasonable doubts, suspicion cannot take its place. In the present case, I am of the view that it is only the suspicion which has led the trial court to convict the accused persons under Sections 302 and 201/34 of the Indian Penal Code. The extra judicial confessions of Gorakh Sahni made before P.Ws. 2 and 3 do not inspire confidence because they have contradicted each other on the material points with regard to the alleged extra judicial confession. P.W.2 has stated that while he was returning after taking tea, he met P.W.3 who was sitting with some persons there. In the meanwhile, informant Gagandeo Sahni came and told him about death of his daughter, whereas P.W.3 has stated that Gagandeo Sahni told that Dasain Sahni has killed his daughter. These two witnesses have stated that Gorakh Sahni was called and in their presence he confessed his guilt. On the point of extra judicial confession, P.Ws. 2 and 3 have given varying evidence. 13 Extra judicial confession is not clear, rather it was a vague statement. Such statement cannot be legally used for passing order of conviction. In this connection, reliance may be placed upon the decision of the Hon‟ble Supreme Court in the case of Hanumant Govind Nargundkar and others Vrs.State of Madhya Pradesh reported in A.I.R.1952 S.C 343 in which scope of circumstantial evidence has been discussed in paragraph 10 of the judgment which is as follows: “In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg.V.Hogde (1838) 2 Lewin 227) where he said: “The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force 14 them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.” 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 15 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. In spite of forceful arguments addressed to us by the learned Advocate General on behalf of the State we have not been able to discover any such evidence either intrinsic within Ex.P-3A or outside and we are constrained to observe that the Courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case.” According to the judgment aforesaid, 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 to complete the case and not to leave any reasonable ground for a conclusion consistent 16 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. The Supreme Court in the case of Dilavar Hussain. Vrs.State of Gujarat and another reported in A.I.R.1991 S.C. 56 has discussed the cases of circumstantial evidence and has come to the opinion that sentiments or emotions, however, strong are neither relevant nor have any place in a court of law and when the case is of circumstantial evidence, each knot of chain has to be proved beyond shadow of doubt to bring home the guilt and any crack or loosening in it weakens the prosecution. The only conclusion should be after consideration that the accused is guilty and could not escape. Learned counsel for the appellants, Mr.Uma Shankar Pd.Singh (Amicus Curiae), assisting this Court has also placed reliance upon the judgments reported in (2002)8 Supreme Court Cases 45,Bhodhraj alias Bodha and others Vrs.State of Jammu and Kashmir, (2003) 1 Supreme Court Cases 534, 17 Sahadevan alias sagadevan .Vs.State represented by Inspector of Police,Chennai, (2002) 7 Supreme Court Cases 543, Balu Sonba Shinde.Vrs.State of Maharashtra, 2003(9) Supreme Court Cases 67, Anil Kumar Singh.Vrs.State of Bihar, (2003) 8 Supreme Court Cases 180, State of Rajasthan.Vs.Raja Ram and some other judgments and has stated that the chain of circumstances relied upon by the trial court has not been proved beyond all reasonable doubts and due to such loose chain of evidence the accused persons cannot be held guilty. On the other hand, learned Additional Public Prosecutor appearing for the State has argued that the onus was upon the prosecution to prove the case and it has been proved and as such there is no need to interfere with the judgment of the trial court. Having considered the submissions of the parties, I am of the view that this is a case of circumstantial evidence. The death at best is within the house of the accused persons but there is no evidence that it was 18 a homicidal death. The witnesses relied upon by the trial court were not such type of witnesses who could be relied entirety as the contradictory evidences have been given by them. I find no legal evidence of murder of Chameli Devi. The extra judicial confession by appellant Gorakh Sahni cannot be legally used against him because it is a vague statement. On the said evidences, appellants Binda Sahni, Dasain Sahni, Ramashrey Sahni, Harihar Sahni and Suraj Sahni have already been acquitted for charge under Section 302/34 of the Indian Penal Code and the trial court has not believed the prosecution case in entirety. The major part of the evidences has been disbelieved by the trial court and the presumption of guilt cannot be fastened. In that view of the matter, I am of the view that the prosecution has not been able to prove the charges beyond the shadow of all reasonable doubts due to lack of evidence and the accused persons are entitled to such benefit of doubt. In the result, I am in full agreement with the judgment of acquittal passed by one 19 of the Hon‟ble Judges. Accordingly, both the appeals are allowed and the appellants are discharged from the liabilities of their bail bonds. The Secretary, High Court Legal Services Committee, Patna, shall ensure payment of Rs.2,000/-(Rupees two thousand only) to Mr.Uma Shankar Pd.Singh, learned counsel, for assisting this Court as Amicus Curiae. ( Shyam Kishore Sharma, J.) Patna High Court,Patna The 25th November,2009 Tahir/-(AFR)