CRIMINAL APPEAL (DB) No.232 OF 1988 With CRIMINAL APPEAL (DB) No. 245 OF 1988 Against the judgment of conviction and order of sentence dated 29th April, 1988 passed in Sessions Trial No. 38 of 1987 by Sri Braj Kishore Thakur, 7th Additional Sessions Judge, Purnea. ********** 1. DHUMA MANJHI @ GHUMA MANJHI SON OF RANKA KISKU 2. RATNA MANJHI SON OF DUGGI MANJHI BOTH RESIDENT OF VILLAGE- DAMDAHA, KALIBAGH,P.S.- DAMDAHA, DISTRICT- PURNEA 3. SIDYA MIAN SON OF SEIKH AJUL (BARA) RESIDENT OF VILAGE- BALU TOLA, P.S.- DAMDAHA, DISTRICT- PATNA ……………………APPELLANTS (in Cr. Appl. No. 232/88) 1. MEDI SAHNI SON OF YADDU SAHNI 2. SATTAN SAHNI SON OF DOMAN SAHNI 3. MOHIT @ MOHIT LAL SAHNI SON OF MUNESHWAR SAHNI 4. JAGO SAHNI SON OF MUNESHWAR SAHNI 5. KANAK MOCHI @ KANIK LAL DAS SON OF TILAK MOCHI 6. PIRTHWI MOCHI SON OF LATE SAHDEO MOCHI 7. SHANKAR SAHNI SON OF SAROOP SAHNI ALL RESIDENT OF BANSI PURANDAHA TOLA, BALU TOLA, P.S.- DAMDAHA, DISTRICT- PURNEA ………………………….APPELLANTS (in Cr.Appl. No. 245/88) Versus THE STATE OF BIHAR ……………………………………. RESPONDENT ************* For the Appellants :- M. Rajiv Kumar Verma, Sr. Advocate (in Cr. Appl. (DB) No. 232/88) Mr. K. N. Sahay, Advocate For the Appellants :- Mrs. Shashi Bala Verma, Amicus Cuiae (in Cr.Appl. (DB) No. 245/88) For the State :- Mr. Dilip Kumar Sinha, APP ****************** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH 2 S.K. Sharma & D.K. Singh, JJ. Above noted both the appeals preferred by the above named appellants have been taken up together because appellants of both the appeals have been convicted and sentenced by a common judgment. 2. The appellants above named of both the appeals have preferred these appeals against the judgment of conviction and order of sentence dated 29th April, 1988 passed in Sessions Trial No. 38 of 1987 by the learned 7th Additional Sessions Judge, Purnea by which the appellants have been convicted under Sections 364, 302/34 and 201/34 of the Indian Penal Code and they were sentenced to undergo imprisonment for life under Sections 302/34 of the Indian Penal Code, rigorous imprisonment for seven years under Section 364 of the Indian Penal Code and rigorous imprisonment for five years under Sections 201/34 of the Indian Penal Code. It was ordered that all the sentences shall run concurrently. 3. Altogether 13 persons were put on trial but order of conviction and sentence was passed only with regard to 10 above named appellants. 4. Exhibit 3 is the basis of the prosecution case. The informant (PW 7) has given his fard-beyan in the evening of 15th March, 1986 that when he returned from Dhamdaha Block to village Karbagha then he noticed 3 Comrade Mohan (deceased) sitting on the darwaja of Hari Bhagat-PW 6. At that time Shankar Sahni and his father Saroop Sahni were also there. They were trying to take Comrade Mohan elsewhere. The informant returned to his house but after sometimes he noticed some whispering sound of the females and they were loudly narrating that the Comrade was being carried away. On getting this information the informant rushed and noticed that Mohan was being dragged away by the named accused persons towards river Koshi. The informant and the witnesses tried to rescue him but they could not succeed. The informant and witnesses rushed to police station and gave the fard- beyan which has resulted in a case under Section 364 of the Indian Penal Code vide Damdaha P.S. Case No. 43 of 1986. The police rushed to village Karbagha and reached there at about 8.30 PM. The victim and offenders were not there. On the next day, the police recovered one freshly cut forearm from Koshi river near Garmahi Ghat. The freshly cut forearm was identified to be of the deceased Mohan. On the next day i.e. on 17.3.1986, villagers recovered a cut thigh which was also claimed to be of Comrade Mohan. Thereafter, Section 302 and 201/34 of the Indian Penal Code was added. The police after investigation submitted chargesheet against 12 named accused persons and one unnamed accused Ajab lal Sahni. The case was committed to the court of Sessions 4 where the charges were framed and explained to the accused persons to which they pleaded their innocence and claimed to be tried. 5. The defence of the accused persons was of false implication on account of enmity which was coming since long due to litigation. Further defence was that Comrade Mohan was not an existing person and he was a fictitious identity. No such person has ever visited the village. Consistent defence of the accused was that the implication was on account of pending of civil and criminal cases in which Sitaram Singh was on one side and the informant and his associates were on another side. The informant and his associates were determined to ruin Sitaram Singh. The informant and others were not assisted by the accused persons in their fight against Sitaram Singh hence it become motive of false implication. 6. In order to prove its case, the prosecution has examined oral as well as documentary evidences. The witnesses are Parwati Devi (PW 1), Jogendra Manjhi (PW 2), Mangal Mochi (PW 3), Urmila Devi (PW 4), Sipahi Mochi (PW 5), Hari Bhagat (PW 6), Jagdish Mochi (PW 7), Dr. B. B. Singh (PW 8) and Ram Pravesh Singh (PW 9). 7. PW 8 is the doctor who has conducted autopsy on cut portions of the body which was brought for post mortem. 5 8. Documentary evidences are: Signature of PW 7 in fard-beyan (Ext. 1), two post mortem reports with regard to examination of two cut portions of the body (Ext 2 and 2/1), formal FIR (Ext. 3), two inquest reports of cut portions of the body (Ext. 4 & 4/1), report of Medical College, Bhagalpur Forensic Science Department (Ext. 5) and forwarding report (Ext. 6). 9. On behalf of the defence some documents were produced, they are: certified copy of order sheet dated 25.9.1980 of Case No. 3/4/78-79 (Ext.A), certified copy of order sheet dated 19.8.1981 of Case No. 170/77-78 (Ext. A/1), certified copy of order sheet dated 25.9.80 of Case No. 322 /78-79 (Ext. A/2), certified copy of FIR of Dhamdaha P.S. Case No. 32/83 (Ext. B), certified copy of FIR of GR No. 1582/84 (Ext. B/1), certified copy of F.I.R of GR No. 1037/78 and certified copy of FIR of GR No. 639/71 (Ext. B/3). 10. After considering the evidences the trial court has passed the order of conviction and sentence against the appellants as stated above. 11. This Court has to see whether the prosecution has been able to prove charges against the appellants beyond the shadow of all reasonable doubts or not. 12. The informant of the case has been examined as PW 7. His evidence is being discussed firstly. He has 6 stated that on 15.3.1986, he had been to Dhamdaha Block. He returned prior to sunset. While he was returning, he noticed that Brajesh Mohan Thakur was sitting on the Darwaja of Hari Bhagat. The informant had discussion with them. Shankar Shani and Swaroop Sahni joined the discussion. The informant returned to his house. Later on, the informant went to maize field which was situated just east to the house of the informant. When the informant was returning from his maize field then the informant’s sister, wife of Dhrub and others shouted that the Netaji was being taken away. The informant saw Brajesh Mohan was being carried away by Ghuma Manjhi, Prithvi Manjhi, Ratanmanjhi, Sidiya Miyan, Shankar Sahni, kanik Lal, Ajab Lal Sahni, Madan Sahni, Jago Sahni, Mohit Lal Sahni and Ratan Sahni towards Koshi River. On cry Jogi Mochi (not examined), Mahendra Mochi (not examined), Sipahi Mochi (PW 5) and others came but they could not dare to rescue Netaji Brajesh Mohan Thakur. The informant later on came to know that Brajesh Mohan was cut by the accused persons. One or two days prior to the occurrence, Sikandar Bhagat (not examined) had come to village and stayed at the house of Prithvi Manjhi. Sikandar Bhagat belongs to Communist Party and he told that he was going towards Vermadi and from where Brajesh Mohan Thakur will come to whom request was made to stay till Sikandar Bhagat comes. 7 After this information Sikandar Bhagat left and went to Vermadi and on the same evening Brajesh Mohan came and occurrence has occurred. The informant has named the accused persons who were dragging Brajesh Mohan. He has stated that on the next day the villagers found a cut portion of left hand which was claimed to be of the deceased. This portion was found on 16.3.1986 in the bed of Koshi. It was a freshly cut portion of the body. Again on the next day i.e. on 17.3.1986 a cut portion of thigh was found which was also claimed to be of the deceased Brajesh Mohan Thakur. It was also a freshly cut portion of the body. These cut portions were identified to be of the deceased. The police came and was shown the place of occurrence. This witness has named a number of persons including Ghuma Manjhi in his initial evidence given under Section 161 of the Code of Criminal Procedure. The Investigating Officer was confronted with the suggestions that the informant has named besides others Ghuma Manjhi and he stated in affirmative that the informant has named Ghuma Manjhi also. Ghuma Manjhi was acquitted. 13. Other witnesses have also supported the version of the informant so far as it relates to alleged kidnapping of the victim or alleged recovery of some or the organs of a person. 14. The doctor has conducted post mortem on two 8 curt portion of the arm but he has failed to give any opinion regarding cause of death. That very doctor held the post mortem of a thigh portion of a body on 18.3.1986 but no definite opinion regarding cause of death was given by the doctor. The doctor has mentioned that the organs sent to him for post mortem was of a male but in the post mortem report it has been mentioned that the thigh sent to him was of human body. He in his cross examination has stated that no instrument was available for determination of the sex and age of limbs. Therefore, if the evidence of the doctor is taken into entirety then it is very difficult to presume or come to a view that the sent organs of the human body were organs of a male or a female. 15. The offence is in two parts. The first part is with regard to kidnapping for the purpose of murder. With regard to charge that the victim was kidnapped by the accused persons the evidence of eye witnesses are on the record. The court has considered the depositions of the eye witnesses but almost on the similar evidence has granted benefit of doubt to some of the accused. Ghuma Manjhi has been acquitted because he has not been identified by one witness, namely, PW 4. Ajab lal has been acquitted though he was named by three witnesses. Sarooplal Sahni was acquitted because no one has identified him. So far as evidence against Sarooplal Sahni is concerned the same is 9 on different footing but regarding others namely, Ajablal Sahani and Ghuma Manjhi, the evidence was that these two accused persons were also identified by the witnesses but they have been acquitted and almost on the similar evidence these appellants have been convicted under Section 364 of the Indian Penal Code. 16. Before holding an accused guilty under Sections 364 or 302 Indian Penal Code it must be proved beyond all reasonable doubt that “a person” was either kidnapped, abducted or was murdered. The initiation of the offence begins after kidnapping of “a person” and that person must be in existence and it cannot be an imaginary person. In the present offence, it has been stated that Comrade Brajesh Mohan Thakur was kidnapped or abducted but identity of that person has not at all been brought on the record. The defence of the accused persons from the beginning was that such person was not in existence and nothing has been brought on the record regarding the existence of a person in the name of Comrade Brajesh Mohan Thakur. On this very ground the charge under Section 364 Indian Penal Code failed. 17. If a person is alleged to have killed “a person” then also the prosecution has to bring cogent evidence that one person was killed. Here also the allegation of killing of Brajesh Mohan Thakur has been leveled but in view of the 10 fact that existence of “a very person” namely, Brajesh Mohan Thakur has not been establish beyond all reasonable doubts then it was imperative that the court should have passed the order of acquittal because charge of kidnapping or killing of “a person” who was alleged to have been killed was not established by the prosecution beyond all reasonable doubts. 18. The enmity is apparent from the evidence of the witnesses. All the witnesses have stated that they had enmity with Sitaram Singh. It has come in evidence that Sitaram Singh has got large area of the land in the locality and this was the apparent reason of implication of the appellants because the witnesses namely, the informant and others are highly interested and motivated. It has come during evidence that Sitaram Singh was also killed. Their aim was any how to grab the land belonging to Sitaram Singh in which the appellants were not siding the informant and his persons. 19. Considering the discussions made above, we are of the view that almost on the same evidence some of the accused persons have been acquitted and some have been convicted. The existence of the person who was said to have been kidnapped or killed has not been established beyond all reasonable doubts, the post mortem examination of the deceased was not of the person who was alleged to have 11 been killed or kidnapped and also that no independent witness has been examined in this case, we are of the view that the prosecution has not been able to prove the charges against these appellants beyond the shadow of all reasonable doubts and once a doubt is created then it is settled principle of criminal jurisprudence that the benefit of doubts must go to the accused and so it is passed to the accused. As such the appellants deserve to be acquitted from the charges leveled against them. 20. In the result, these appeals are allowed and the judgment of conviction and order of sentence against the appellants as stated above is set aside. The appellants are acquitted from the charges and they are discharged from the liabilities of their bail bonds. 21. Let a copy of the first and last page of this judgment be handed over to Mrs. Shashi Bala Verma, Amicus Curiae of Cr. Appeal (DB) No. 245 of 1988 who is entitled to receive the prescribed remuneration from the Patna High Court Legal Services Authority. (Shyam Kishore Sharma, J.) (Dinesh Kumar Singh, J.) Patna High Court, Patna Dated 26th July, 2010 Avin/N.A.F.R.