CRIMINAL APPEAL No.232 OF 2003 (DB) *** Against the judgment and order dated 19th February, 2003 passed by Sri Arun Kumar Sriwastawa, Ist Additional Sessions Judge, Buxar in Sessions Trial No.29/2000. *** 1.DHANJI RAM @ DHANJI CHAMAR, SON OF PITAMBER CHAMAR 2.BIRENDRA CHAMAR, SON OF BADHARI CHAMAR 3.GEETA DEVI, WIFE OF DHANJI RAM ALL RESIDENTS OF VILLAGE NAWANAGAR, P.S. NAWANAGAR, DISTRICT BUXAR----------------------------------APPELLANTS Versus THE STATE OF BIHAR------------------------------RESPONDENT *** For the Appellant: Mr. Anil Kumar Singh, Advocate (Amicus Curiae) For the State : Mr. Lala Kailash Bihari Prasad, Addl.P.P. *** P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR.JUSTICE SYED MD.MAHFOOZ ALAM *** Mridula Mishra & S.M.M.Alam, JJ. This is a jail appeal preferred by three appellants, namely, Dhanji Ram @ Dhanji Chamar, Birendra Chamar and Geeta Devi against the judgment and order dated 19.2.2003 passed by Ist Additional Sessions Judge, Buxar in Sessions Trial No.29/2000. By the impugned judgment, the appellants have been convicted under Sections 302/34 and 201/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2 2. Sumanti Devi, mother of Subash Gupta, got her fardbeyan recorded on 11.7.1999 at 3.00 P.M. at the Police Station Nawanagar alleging that on 10.7.1999 at about 8.00 A.M. Dhanji Ram came at her residence when she along with her son Subhash Gupta and daughter Lalita Devi was taking tea, Dhanji insisted Subhash Gupta to accompany him and Subhash Gupta went in his company on the assurance that within one hour he will come back. Since, her son did not come till afternoon she went to enquire at the residence of Dhanji Ram. Dhanji Ram was walking in the street in front of his house putting lock at the door of his house. Sumanti when enquired about her son from Dhanji Ram, he replied that Subhash left for his house within an hour. Sumanti Devi came back. Again in the evening she went to enquire at Dhanji’s house. At that time Geeta Devi was cooking food and Dhanji Ram was sleeping on the cot. Birendra Chamar was also there. Sumanti when asked about her son, Birendra replied that Subhash Gupta had barrowed Rs.200/- and gone to meet Pahun at Panipat. Similar reply was of Dhanji and then Sumanti Devi came back to her house. On the next day in the morning there was a rumour in the village that Dhanji Ram and Geeta Devi are going out of the village. Thereafter she along with Mukteshwar Sah and Mritunjay Sah, who are her brothers-in-law, went at the police station and gave information regarding missing of his son. Sumanti raised suspicion in the first information report that her son might have been killed. On the basis of the fardbeyan of Sumanti, Nawanagar P.S. Case No.47/99 was registered under Sections 302 and 201/34 of 3 the Indian penal Code against Dhanji Ram and Birendra Chamar, Geeta Devi was not named in the F.I.R. as accused. It transpires that after recording the fardbeyan of Sumanti Devi, Dhanji Ram and Geeta Devi were apprehended by the Police. Dhanji Ram made his confessional statement before the Investigating Officer. On the basis of his confessional statement, the police raided the house of Dhanji Ram and dug one of the rooms of Dhanji Ram as shown by him, from where dead body of Subhash Gupta was recovered. Geeta Devi was also made accused in this case in course of investigation. Manoranjan Bharti, Officer Incharge of Nawanagar Police Station thereafter prepared inquest report, sent the dead body for its post mortem, seized spade and Belcha from the place of occurrence and made a seizure list of these articles, recorded the statements of witnesses and finding the case true against three accused persons, submitted charge sheet against them. On the basis of the aforesaid charge sheet, cognizance was taken and the trial was conducted. The trial court, considering the evidence of the prosecution witnesses, convicted the appellants, as stated above. 3. The prosecution examined altogether nine witnesses to prove the charges framed against the accused persons. P.W.1 Mukteshwar Sah, P.2 Mritunjay Sah and P.W.3 Gupteshwar Prasad are related to the deceased and the informant. All three witnesses are brothers-in-law of the informant and uncle of the deceased. P.W.4 Raju Chaurasia is a witness on the point that recovery was made in his presence from the house of Dhanji Ram. P.W.6 Sumanti Devi 4 is the informant and the mother of the deceased. P.W. 7 Manojranjan Bharti is the Investigating Officer. P.W.8 Lalita Devi is the sister of the deceased and P.W.9 Bali Ram Singh, is also one of the witnesses, who has deposed that he came to know about the involvement of Dhanji Ram in the murder of Subhash Gupta. He also came to know about the recovery of the dead body though he has denied that he was a member of that group who accompanied the police party at the time of recovery of the dead body. 4. P.W.5 is Dr. Mundrika Prasad Mandal, who conducted post mortem on the dead body of the deceased. He opined that death was caused due to asphyxia. He found the face and body of deceased swollen. Prutification foul smell was coming from the body; Maggots were found crawling over the body. P.W.5 found peeling of cuticles, eye balls bulging, tongue protruded and bitten by teeth, Scrotium swollen. Echymosis seen over neck. Ligature mark was also present in circle on the neck of the deceased. As per opinion of the doctor, time elapsed in between the death and post mortem was 48 to 60 hours. 5. On consideration of the evidence of the prosecution witnesses, it is apparent that no one has witnessed the actual killing of the deceased. It is a case based on circumstantial evidence, and in order to prove the offence in case of circumstantial evidence it should be consistent and convincing. The chain of circumstance which started with the taking away of the deceased by Dhanji Ram must be continuous till recovery of the dead body. P.W.6 Sumanti Devi and P.W.8 Lalita Devi, who were present at the 5 residence on the date of occurrence, have stated that Subhash Gupta was taken away by Dhanji Ram on 10.7.1999 at 8 A.M. He came at their residence and insisted Subhash to accompany him. Subhash left in his company and did not come back. P.Ws.1, 2 and 3 have deposed that Sumanti Devi contacted them on 11.7.1999, narrated the incident of 10.7.1999 regarding taking away of her son and also about repeated enquiry made by her from Dhanji Ram regarding Subhash. P.W.6 had disclosed before them that she twice went at the residence of Dhanji Ram for asking him, why Subhash has not returned back. On both occasions, Dhanji Ram made a reply which was nothing but to mislead Sumanti Devi. So far as appellant Birendra Chamar is concerned, except P.W.3, no one has stated that Birendra Chamar had accompanied Dhanji Ram in the morning of 10.7.1999 for taking away Subhash Gupta. P.W.6 and P.W.8 have clearly stated that Birendra had not come to their residence for taking away Subhash Gupta and this statement has further been corroborated by P.W.8. 6. It is well established that in a case completely based on circumstantial evidence, the circumstance showing guilt of the accused be so strong that there should be no scope left for recording a finding in favour of the innocence of the accused. In the present case, the consistent evidence of the prosecution witnesses corroborated by the medical evidence do not leave any iota of suspicion for deciding in any other manner than to confirm the finding recorded by the trial court, so far as the role played by Dhanji Ram is concerned. The evidence 6 of the prosecution witnesses is sufficient to show that there is no other person than Dhanji Ram, who is responsible for taking away the deceased, and Subhash was not seen by anyone alive thereafter and only his dead body was later on recovered on the basis of the confessional statement of Dhanji Ram. 7. Manoranjan Bharti, Investigating Officer, who has been examined as P.W.7, has specifically stated that the confessional statement of Dhanji Ram was recorded by him and only after recording the confessional statement of Dhanji Ram, he proceeded for recovery of the dead body and finally it was recovered from inside the room of Dhanji concealed in a ditch of one and half feet depth. The Investigating Officer has stated in his deposition that confessional statement of Birendra Chamar was not recorded by him or by any one. So far as confessional statement of Geeta Devi is concerned, the evidence of P.W.7 is that it was recorded by B.D.O. B.D.O. has not been examined as witness. So, there is no legal evidence on record to find out that any confessional statement of Geata Devi was recorded on the basis of which recovery of dead body was made by P.W.7 and his police party. Evidence on record clearly indicates that the chain of circumstances is complete indicating guilt of Dhanji. Witnesses have clearly and consistently made statements to indicate the role played by Dhanji Ram alias Dhanji Chamar in committing murder of deceased Subhash Gupta. 8. Only question which needs consideration – whether conviction of appellants, namely, Birendra Chamar and 7 Geeta Devi under Section 302/34 and 201/34 of the I.P.C. is sustainable. So far as appellant Birendra Chamar is concerned, there is no evidence to show that he had even knowledge about killing of Subhash Gupta and concealing his dead body inside the house of Dhanji Ram. The evidence which is on record simply show that at the instigation of Dhanji Ram Birendra Chamar made statement before P.W.6 Sumanti Devi that her son borrowed Rs.200/- from him and had left for Panipat. Beyond that, there is no evidence against him. In the given circumstance, there is no evidence on record for conviction of Birendra Chamar under Section 302/34 of the I.P.C. or under Section 201 of the I.P.C. Considering these facts, appellant Birendra Chamar is acquitted of the charge under Section 302/34 and under Section 201/34 of the I.P.C. The judgment and order of conviction passed against him by the trial court is set aside. He is on bail; as such he is discharged from the liability of his bail bonds. 9. Similarly the evidence on record do not indicate that appellant Geeta Devi had any mens rea or motive to commit murder of deceased Suhbash Gupta. None of the witnesses have stated that Geeta Devi either approached for taking away Subhash Gupta or she even made single statement to mislead P.W.6 or any other witnesses when enquired about the deceased. Indeed she is the wife of Dhanji Ram and was living with him in the same house. Whatever had happened she must have witnessed. The dead body must have been concealed in her presence but she did not disclose this fact to anyone rather she preferred to flee away from the 8 place of occurrence in the company of her husband. She along with her husband was apprehended by the police, when they were ready to flee away. These are circumstances to show that though her involvement is not clear in killing the deceased but she has been a party in concealing the evidence. Considering all these aspects, conviction of appellant Geeta Devi under Section 302/34 of the I.P.C. is set aside. However, her conviction under Section 201/34 of the I.P.C. is confirmed. Appellant Geeta Devi was taken into custody on 11.7.1999 and since then she has never been granted bail. She has remained in custody for near about nine years which is much more than the maximum punishment for which she could have been sentenced under Section 201/34 of the I.P.C. She is directed to be released at once, if not required in any other case. 10. Dhanji Ram alias Dhanji Chamar is an accused against whom there is sufficient and consistent evidence that he committed murder of Subhash Gupta deceased in a pre- planned manner and concealed the dead body in a ditch inside the room, in order to wipe out the evidence. He was convicted by the trial court under Section 302/34 and 201/34 of the Indian Penal Code. His conviction under Section 201/34 of the I.P.C. passed by the trial court is confirmed. Conviction of Dhanji Ram under Section 302/34 is modified and he is convicted under Section 302, I.P.C. 11. The appeal is allowed so far as appellant Birendra Chamar is concerned. It is dismissed against appellants, namely, Dhanji Ram alias Dhanji Chamar and Geeta Devi. 9 12. Mr. Anil Kumar Singh, Advocate was appointed Amicus Curiae. He has tried his level best to assist the court. His fee amounting to Rs.2500/- (Rupees two thousand and five hundred) will be paid by the Patna High Court Legal Aid Committee. The first order appointing Mr. Anil Kumar Singh, Advocate as Amicus Curiae and the last page of the order be handed over to him. (Mridula Mishra, J.) (Syed Md. Mahfooz Alam, J.) Patna High Court, Patna The 12th December, 2008 N.A.F.R. (B.T.)