IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.55 of 1989 ----------- 1. Bhola Yadav, Son of Girijesh Yadav. 2. Jago Yadav, Son of Fauzdar Yadav. Both residents of Village-Dargahi Tola, P.S.-Pandarak, District-Patna. .... .... Appellants. VERSUS The State of Bihar. .... .... Respondents. ------------ Appearance : For the Appellants :Mr. Gyan Prakash Ojha, Amicus Curiae. For the Respondent : Mr. Shivesh Chandra Mishra, A.P.P. ****** PRESENT HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH & HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ****** The two appellants were charged under Sections-364,302 and 201 of the Indian Penal Code and convicted under each of the heads. They have been sentenced to life imprisonment under Section 302 of the Indian Penal Code and for 10 years rigorous imprisonment under Section-364 of the Indian Penal Code and three years rigorous imprisonment under Section-201 IPC and sentences were ordered to be run concurrently. When this appeal was taken up for final hearing yesterday and before no one appeared for the appellants and, as such, this Court appointed Mr. Gyan Prakash Ojha, learned counsel present in the Court as amicus curiae. Paper book was given and he has ably assisted the Court today. Heard the parties. Briefly stated prosecution case is that on the night of 30.04.1982, while the informant and his son were at their house, the appellants came and Navaniti Prasad Singh & Ashwani Kumar Singh, J.J. 2 requested his son, Anil Kumar Singh, who was a plumber, to company them with his instruments for some repair work. It is alleged that when by 10 pm Anil Kumar Singh, the deceased did not return, the informant, Shatrughna Singh, P.W.9 went to the appellants, finding them sleeping in their house, asked them about the whereabouts of his son. They disclosed that he has finished the work and gone back. Later in the night again the informant, having found his son not having returned home, allegedly, went to their house to make enquiry, appellants were found missing. Next morning the informant again enquired from the appellants and they disclosed that he had finished the work and returned. Then next day, that is, on the 1st May 1982 people started searching and went to different places but Anil Kumar Singh was not found. Ultimately, on 02.05.1982 information was given to the police station in the shape of ‘Sanha’ entry narrating the said fact. On the next day, i.e., on 03.05.1982 a dead body was found floating in shallow water of river Ganga and that was identified as that of informant’s son, Anil Kumar Singh and, accordingly, the first information report was now lodged suspecting the appellants to be responsible for the death of informant’s son. It may be noticed that while lodging the F.I.R. the brother of appellant Bhola Yadav and his father were also named because it is alleged that on the midnight of 30.04.1982 when the informant went to their house second time they were also found missing. Police after investigation submitted chargesheet only against the appellant whereas the other two were not sent up for trial who were later summoned under Section 319 Cr.P.C. We have heard learned counsel for the parties and perused the evidence on record. We first found that the trial Court after the trial and looking to the evidence acquitted the other two persons but held the two appellants, first, 3 guilty of abduction on the face of the allegation as noted above. We have failed to understand that how the charge of abduction could at all have been made much less upheld. We, therefore, find that the appellants cannot be held guilty for having committed an offence under Section-364 IPC. Now, coming to the substantive offence under Section-302 IPC. Prosecution has examined in all 13 witnesses. In our view, the material witnesses would be the informant, Shatrughna Singh, P.W.9 and Laddoo Singh, P.W.8 upon whose solitary evidence the conviction has been ordered. So far as the case of prosecution as established by various prosecution witnesses is that the appellants called the son of the informant, the deceased, there is no dispute. The deceased did not return, there is no dispute and the dead body of the deceased was found three days later in the shallow water of river Ganga is also not in dispute. The question is, what is the evidence to connect the appellants to the death of the deceased. Here one may also notice that the death of the deceased as proved by the postmortem report and on the examination of the doctor is culpable homicide. The evidence of the informant is only in respect of the appellants requesting the services of the deceased and taking him for carrying out certain repair works. What is material in the evidence of P.W.9 that he himself admits that at about 10 pm he enquired from the appellants who were found sleeping in their house about the deceased. The appellants told him that the deceased has completed the work and returned, except this circumstance, there is nothing against the appellants except what was found to be the damning evidence of P.W.8, Ladoo Singh. It appears that though the informant’s son had been missing for over 3 days police having already been informed, the dead body having been 4 recovered on the 3rd of May, 1982, the F.I.R. having been registered on the same day, no one of the village or near about disclosed anything about the incident. Five days thereafter, on or about 8.5.1982, it appears that Ladoo Singh, P.W.8 gives his statement before the police, which is recorded in terms of Section-161 Cr.P.C., which statement also says that he had seen the two appellants and the other two persons named in the F.I.R., as accused, carrying something and dumping it into river on the night of 30th April, 1982. This statement was recorded by the police 8 days after the occurrence and 5 days after the recovery of the dead body though he is of the same village. What is curious is when Ladoo Singh deposes in the Court as P.W.8 he says that he had seen the appellants and their brother and father carrying the dead body which they threw in the river, which is an improvement. The trial Court has noticed that no such statement is recorded in the case diary. In view of the fact that he is a co-villager and makes disclosure to the police after 8 days is enough, in our view, to discard his testimony in total. Further, we find that so far as the father and the brother of the appellants are concerned, they have been acquitted by the trial Court itself on the ground that the testimony of P.W.8 regarding them is not reliable. We fail to appreciate that now half of the testimony in respect of two persons as made by P.W.8 can be held to be reliable and the other half unreliable. It is the witness whether he is reliable or not. In our view, in view of the conduct of P.W. 8, we hold that he as the witness is not reliable and if his testimony is discarded which we discard then there is nothing left against the appellants except that they had taken the services of the deceased. The chain of circumstances is not complete in any manner. In fact, it would be right to say that there is no chain at all. 5 In that view of the matter, we have no option but to allow the appeal and set aside the conviction and the sentence. The appellants are discharged of their bail bonds. In view of the valuable assistance given by Mr. Gyan Prakash Ojha, learned counsel we direct the Patna High Court Legal Aid Committee to pay him remuneration for hearing of one day. (Navaniti Prasad Singh, J.) (Ashwani Kumar Singh, J.) Patna High Court, Patna The 09th August, 2011 Trivedi/NAFR