Criminal Appeal No.10 of 1989 Against judgment and order dated 19.7.1988, passed by Shri Dewendra Prasad Singh Choudhary, Additional Sessions Judge, Bhojpur, Arrah, in Session Trial No.377 of 1986. ******* Sheojee Bhar .......... ............ Appellant versus The State of Bihar ...... ........... Respondent ******* For the Appellant : Ms. Nutan Sahay, Advocate Amicus Curiae For the State : Ms. Shashi Bala Verma Additional Public Prosecutor P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH S K KATRIAR, J. The sole appellant has challenged his conviction and sentence under section 302 read with section 34 IPC, as well as his conviction and sentence under section 201 and 379 IPC. He has been sentenced to undergo rigorous imprisonment for life for his conviction under section 302/34 IPC. He has been sentenced to undergo rigorous imprisonment for five years for his conviction under section 302 read with 201 IPC, and three years under section 379 IPC. The sentences have been directed to run concurrently by judgment dated 19.7.1988, passed by the learned Additional Sessions Judge, Bhojpur, Arrah, in Sessions Trial no.377 of 1986. 2. On the basis of the statement of one Chandrika Paswan, Chowkidar of village Mahdah, PS Buxar Muffasil, District Bhojpur, fardbeyan (Ext6) was recorded at Buxar Muffasil Thana on 13.2.86. It was stated therein that on 13.2.86, at about 6 to 7 A.M., news went round the village that in the orchard situate on the north-west of the village, one person was found dead after being hit with a sharp- cutting weapon and it was thrown in the ditch. The informant along with Vimal Kurmi and many co-villagers went to the spot and found that there were injuries by sharp-cutting weapon on both sides of the ears of the deceased. Nobody was able to identify the dead body which 2 appeared to be of a Hindu male between 35 to 40 years of age. The fardbeyan was against unknown persons. On the basis of the fardbeyan, formal first information report (Ext.1) was drawn. After conclusion of investigation, charge-sheet was submitted against the appellant as well as one Munna Khan @ Imtiaz Khan under section 302 read with 34, 302 read with 201 and 379 IPC, for the murder of one Lala Yadav. The learned Chief Judicial Magistrate took cognizance of the offences and committed the case to the court of sessions for trial of both the accused. The learned Additional Sessions Judge framed charges against both the accused persons under section 302 read with section 34 IPC, and also under section 302 read with section 201, and under section 379 IPC. 3. The prosecution examined the following 10 witness:- (1) PW 1 – Murat Ram (2) PW 2 – Ram Awatar Yadav (3) PW 3 – Dadan Yadav (4) PW 4 – Dhaneshwari Devi (5) PW 5 – Harbansh Choubey (6) PW 6 – Ramayan Yadav (7) PW 7 – Rameshwar Pasad Singh (8) PW 8 – Pashupati Nath Upadhyay (9) PW 9 – Dr. P N Roy (10)PW 10- Sheo Bachan Singh After the prosecution concluded its evidence, the learned trial court subjected the accused persons to examination under section 313 CrPC, on 31.5.88. 4. The prosecution proved the following documents:- (i) Ext. 1- Fardbeyan was proved by PW 1. (ii) Ext. 2- Signature of one Harbansh Choudhary, a co-villager, on the seizure list, was proved by PW 5. (iii) Ext. 3- Inquest Report, proved by PW 7(Rameshwar 3 Prasad Singh), a Taid, lawyer’s clerk. (iv) Ext. 4- is the seizure list, proved by PW 8(Pashupati Nath Upadhyay), a Taid, lawyer’s clerk. (v) Ext. 5- Post-mortem report, proved by PW 9 (Dr. P N Roy), Doctor. (vi) Ext. 6- Fardbeyan (written report in the pen of S M Haque Qadri, Sub-Inspector of Police), proved by PW 10 (Sheo Bachan Singh), a Taid. (vii) Ext. 7- Paragraphs 1 to 83 of the case diary, proved by PW 10 (Sheo Bachan Singh), Taid. (viii) Ext. 7A- Paragraphs 84 to 105 of the case diary, proved by PW 10 (Sheo Bachan Singh), Taid; and, (ix) Ext. 8- Test Identification Chart, proved by PW 10 (Sheo Bachan Singh), Taid. 5. The prosecution proved the following material exhibits:- (i) Ext. I – (Black coat of the deceased), proved by PW 3, (Dadan Yadav), son of the deceased. (ii) Ext.II – (Underwear of the deceased), proved by PW 3. (iii) Ext.III – (Shoes of the deceased), proved by PW 3. (iv) Ext.IV – (Towel of the deceased), proved by PW 3. (v) Ext.V – (Sweater of the deceased), proved by PW 3. (vi) Ext.VI – (Cap of the deceased), proved by PW 3. (vii) Ext.VII – (Watch of the deceased), proved by PW 3. 6. The accused person did not examine any witness in support of his defence. On a consideration of the materials on record, the learned trial court gave the benefit of doubt to Munna Khan alias Imtiaz Khan and acquitted him. However, he convicted the appellant on three counts. He has convicted him under section 302 read with section 34, IPC, and has been sentenced to undergo R.I. for life. He has also been convicted under section 302 read with section 201, and has been sentenced to undergo R.I. for five years, and has also been 4 convicted under section 379 IPC, and has been sentenced to undergo R.I. for three years. All the sentences have been directed to run concurrently. 7. Learned counsel for the appellant submits that it is a feeble and poorly conducted prosecution. Exts. 3 to 8 have been proved by lawyer’s clerks. She next submits that there is no eye-witness to the occurrence, and is a case of circumstantial evidence, no link of which is complete. She has pointed out various circumstances to discredit the prosecution case based on circumstantial evidence. She next submits that it is evidently a case of false implication. PW 2 and PW3 (the father and the son of the deceased) have consistently deposed to the effect that the appellant had gone to the residence of the deceased and had in the presence of the two PWs gone away together. They have further deposed to the effect that the two families were well known to each other, were on visiting terms, notwithstanding which the family did not take any step to enquire from the appellant or his family members about the whereabouts of the deceased for four days. She submits in the same vein that the evidence on record does not satisfy the vital tests laid down by the Supreme Court if a conviction is sought to be based on circumstantial evidence. She relies on the judgment of the Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] (Paragraphs 153 and 218) = AIR 1984 SC 1622 (Paragraph 152). She lastly submits that the dead body was found four days after the appellant was allegedly last seen with the deceased giving rise to strong possibility that he might have been murdered by somebody else. 8. Learned Additional Public Prosecutor submits that the evidence on record clearly establish that the appellant had murdered Lala Yadav, and the motive has also been clearly established. She submits that it is a case of circumstantial evidence, and every link from the stage of the last seen till the discovery of the dead body has 5 been convincingly proved by cogent and reliable evidence. She next submits that the confessional statement of the appellant before the police is enough to convict him. She also submits that failure on the part of the family members to find out the whereabouts of the deceased for four days only speaks of the cultural structure of the level of the society to which they belong, in a situation where he was doing the job of a rickshaw-puller and had to travel considerably long distance to the township of Buxar. She lastly submits that though the I.O. has not been examined, but the case diary has been exhibited. Law is well settled that non-examination of the I.O. by itself is not fatal to the prosecution case. 9. We have perused the materials on record and considered the rival submissions of learned counsel for the parties. PW 1 is Murat Ram, appears to be the clerk of the Public Prosecutor. He has proved the First Information Report marked Ext.1. He is a formal witness. 9.1 PW 2 is Ram Awatar Yadav, father of the deceased. He has stated in his deposition that Lala Yadav deceased was his son. He was murdered about 15 months earlier than the date of his deposition on 22.5.87. On a Wednesday, at about 12 to 1 in the day time, the accused-appellant (Sheojee Bhar) came to his residence and had taken away his son Lala Yadav by telling him that he shall help him in purchasing a rickshaw. Lala Yadav took 1500 rupees and accompanied the appellant. Dadan Yadav (PW 3), the son of the deceased and the grand-son of the witness, as well as Dhaneshwari Devi (PW 4), the widow of the deceased and daughter-in-law of the witness, were also present at the time of their departure. Lala Yadav did not return thereafter. Four days after Lala Yadav had left, the witness had learnt that a murder had taken place in Mahdah, and one unclaimed dead body had been found. On hearing this, he had gone to the Muffasil Thana where he had identified the coat, cap, lungi, ganji, and shoes of the deceased. The witness was shown a 6 photograph of the dead body of the deceased. All these items belonged to Lala Yadav and the photograph of the dead body shown to him was of Lala Yadav which he duly recognized. About 15 to 16 days after the occurrence, the witness had gone to the BDO’s office and, in the presence of the BDO, had identified the wrist watch of Lala Yadav in T I Parade. PW 2 has further deposed that the sister of the appellant is married to one Bhikri Bhar in his village and he, therefore, recognized the appellant in the dock who is a rickshaw-puller. The witness has stated in his cross-examination that Lala Yadav was an accused in a trial under section 302 IPC, where Gorakh Nath Choubey and Nirbhay Choubey were witnesses. He has denied in his cross-examination the suggestion that he had gone for the T I Parade to identify the material objects about five months after the occurrence, and it was a premeditated affair. He has also stated that his son Lala Yadav deceased was plying rickshaw for a school at Buxar. He has further stated that Lala Yadav was separate from him and was managing his own affairs. Partition had taken place between the father (the witness) and the three sons. He has further stated that even though he had learnt that his son Lala Yadav did not return for the whole night, he did not inform the Thana or the Panchayat. He has also stated that he did not search him in the morning. He has indeed not searched him at all till such time he learnt of his murder. He had initially no suspicion on the appellant. He could not see the dead body because it had already been cremated. He has denied the suggestion that Lala Yadav was engaged in illegal activities or was an accused in a criminal case, or that he did not bear good moral character. He has also denied the suggestion that Lala Yadav was murdered at different place and the witness has implicated him in a false case. 9.2 PW 3, Dadan Yadav, is the son of the deceased. He has deposed to the effect that on the day in question, at about 1 PM, the 7 appellant had come to his house and had told his father (the deceased) that he will help him in purchasing a rickshaw. Lala Yadav had taken a sum of Rs.1500/- and accompanied the appellant. He had not returned ever. Three to four days thereafter he had accompanied his grand-father (PW 2) to the police station where he had identified the clothes of his father which he was wearing at the time he left his residence, and also recognized the photograph of his dead body. He also identified the watch of Lala Yadav which he was wearing at the time he left the residence. The clothes, watch, and other belongings of the deceased were proved by PW 3, and have been marked Exts. I to VIII. PW 3 in his cross-examination has stated that he grazes buffaloes of his grand father. He does it in the afternoon and returns by evening hour. He has also stated in the cross-examination that he was not present at his residence when his father had gone out with the appellant and he had gone out to graze buffaloes, and had returned before the sun set. He had on that day left the residence at 10 AM to graze buffaloes and had returned in the evening. He had not seen his father leaving the residence. 9.3 PW 4 is Dhaneshwsari Devi, the widow of the deceased (Lala Yadav), and the daughter-in-law of PW 2. She has stated in her deposition that her husband was a rickshaw-puller. He was murdered about 15 to 16 months earlier, her date of deposition being 25.6.87. On the fateful day, at about 1 PM, the appellant had gone to her residence and asked the deceased to accompany him for purchase of his rickshaw (i.e. for Lala Yadav). He had taken Rs.1500/- from her and left the residence accompanied by the appellant. She has also deposed to the effect that, at that time, her father-in-law and her son were also present. Her husband never returned thereafter. About four days after he had left, her father-in-law had taken her to the police station where the material objects, and the photograph of the dead 8 body of Lala Yadav, were shown to her. She had recognized the same to be the ones which he was wearing at the time when he left the residence. She has recognized the photograph of the dead body of her late husband. She has also deposed to the effect that the appellant was also a rickshaw-puller and frequently visited them. Her sister was married in the appellant’s mohalla. She, therefore, knows him from before. She has further deposed to the effect that her husband was accused in a criminal case. Her husband left the residence after eating rice, pulse, and vegetable. She is the keeper of money in the house and had given her husband the money. She had taken permission of her father-in-law before handing over the amount to Lala Yadav. Her husband was rickshaw-puller, had sold his previous rickshaw about ten days earlier, and another one had not been purchased. He was not doing any work during the ten days after the sale of the previous rickshaw. He was the sole bread-earner of the family. She has further stated that she initially did not suspect the appellant. She had not informed the police station. She has also stated that her father-in-law had informed the police station that Lala Yadav was missing. She has denied the suggestion that she has falsely implicated the appellant. She has also denied the suggestion that her husband was engaged in nefarious activities, and she had implicated the appellant on suspicion. 9.4 PW 5, Harbansh Choubey, is the witness to the seizure list, and is a co-villager. He has not supported the prosecution case in so far as Munna Khan @ Imtiaz Khan is concerned. Therefore, so far as the case of the present appellant is concerned, his evidence is of no importance. 9.5 PW 6, Ramayan Yadav, is also a co-villager and has proved the seizure list with respect to Munna Khan @ Imtiaz Khan. So far as the case of the present appellant is concerned, his evidence is of no consequence. 9 9.6 PW 7, Rameshwar Prasad Singh, has proved the Inquest Report prepared by the Sub-Inspector marked Ext. 3. He is a Taid, i.e. lawyer’s clerk, and has not stated as to how he knew the mark of the document. 9.7 PW 8, Pashupati Nath Upadhyay, is also a Taid, and has proved the seizure list marked Ext. 4. 9.8 PW 9, Dr. P N Roy, is the Medical Officer who conducted the post-mortem on the dead body, and has proved the post-mortem report marked Ext. 5. The post-mortem report states that there were injuries by sharp cutting weapon behind the ears and other parts of the body. He has also deposed to the effect that Phulera Mishra, who had conducted the T I Parade, is dead. 9.9 PW 10, Sheo Bachan Singh, is a Taid, and has proved the Fardbeyan. He has also proved paragraphs 1 to 83 of the case diary in the pen of a particular Sub-Inspector and has been marked Ext. 7. He has also proved paragraphs 84 to 105 of the case diary marked Ext. 7/A, in the hand writing of another Sub-Inspector. He has also proved the T I Chart marked Ext. 8. 10. On a consideration of the materials on record and the submissions made by learned counsel for the parties, the learned trial court convicted the present appellant, and acquitted Munna Khan @ Imtiaz Khan, a co-accused, on account of lack of adequate evidence. 11. Ms. Nutan Sahay, appearing Amicus Curiae for the appellant, has advanced elaborate submissions in an effort to prove the innocence of the appellant. Learned Additional Public Prosecutor has also taken us through the evidence and submits that the evidence on record proves the guilt of the accused. 12. The FIR was against unknown, and is based on circumstantial evidence, there being no eye-witness. Learned counsel for the appellant has rightly brought to our notice the judgment of the Supreme Court in Sharad Birdhichand Sarda v State of 10 Maharashtra [AIR 1984 SC 1622], which has laid down five golden rules which must be satisfied before a judgment of conviction on circumstantial evidence can be recorded. Paragraphs 152 and 153 of the judgment are reproduced hereinbelow for our guidance:- “152. A close analysis of this decision would show that 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 `mat be’ established. There is not only a grammatical but a legal distinction between `may be proved’ and `must 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 mental distance between `may be’ and `must be’ is long and divides vague conjectures from sure conclusion.” (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 possible hypothesis 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. “153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 13. We wish to remind ourselves that the Supreme Court has clearly laid down that the facts so established should be consistent only with the hypothesis of the guilt of the accused, i.e. they should not be explainable on any other hypothesis except that the accused is guilty. 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 11 probability the act must have been done by the accused. Keeping these principles of law in mind, we observe from the evidence on record that there are a number of contradictions between the evidence of the different prosecution witnesses who are first degree relations of the deceased. On one hand, the father (PW 2) and the widow (PW 4) have deposed to the effect that both of them along with the son (PW 3) of the deceased were present at the time Lala Yadav had left their residence along with the appellant. On the other hand, the son of the deceased has deposed to the effect that he was not present at that time, he was not at his home, and had gone to graze buffaloes. This contradiction, in our view, is of some significance. On the one hand, PW 2 has deposed to the effect that he had not gone to the police station or the panchayat to inform anybody about his missing son although he was absent for four days. On the other hand, PW 4 has deposed to the effect that her father-in-law had gone to the police station to inform that her husband was missing. PWs 2, 3 and 4 have with some contradictions deposed to the effect that the family members had not taken any step to search Lala Yadav, nor any step had been taken to inform the appellant in a situation where, according to the deposition of PW 4, he was the sole bread-earner of the family. This is not a natural conduct in a situation where PW 2 has deposed to the effect that Lala Yadav used to consult his father in money matters, and the earning used to be kept by PW 4, a situation indicative of cordial relationship among the members of the family. In such a situation, the natural conduct would have been for such relations of the first degree to have shown the requisite anxiety when he was absent for four days continuously. It is of great importance to mention that, according to the depositions of PWs 2 to 4, the appellant was last seen with the deceased and was known to the family very well. According to their combined deposition, they were on visiting terms with each other. In such a situation the natural 12 conduct would have been for the family members to enquire first of all from the appellant and his house-hold. This circumstance appears to be of great importance in this matter and an omission of vital nature, and appears to us to operate in favour of the appellant. 14. This has to be read with the evidence of PW 2 and PW 4 that Lala Yadav was an accused in a murder case, meaning thereby that he had criminal antecedents and had enemies, giving rise to the possibility that he might have been murdered by somebody else. We also note the omission on the part of the prosecution to examine the I.O. We are, however, mindful of the legal position that non- examination of the I.O. is not fatal to the prosecution case, and the Court should be satisfied about prejudice that has occurred on account of non-examination of the I.O. What really comes to our mind is the complete absence on the part of the prosecution to explain the non-examination or non-availability of the I.O. The issue relating to prejudice arises later. 15. We also notice that the prosecution has examined a number of formal witnesses