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2007 Supreme(Pat) 195
PATNA HIGH COURT
Shiva Kirti Singh and Subash Chandra Jha JJ.
Anil Kumar
Versus
State Of Bihar
Criminal Appeal No. 105 of 2002 ;
Decided On : JANUARY 29, 2007
Headnote:Indian Penal Code 1860-Sections 302 & 201-Conviction under-Dead body of deceased found-No eye witness-Trial Court holding appellant guilty on three circumstances (1) Appellant was last seen with the deceased (2) gave false information to the informant regarding movement of the deceased and (3) appellant had assented himself from the village-No witness have seen them going together out of the village-To the contrary the evidence of PW 2 creates a doubt that after leaving his house the deceased was seen not only in the village by some others but at that time there were three persons with him besides appellant-Non-examination of persons named by PW 2 leaves gaps in the chain of circumstances and creates doubt-No evidence of any competent witness claiming that he had seen any altercation or exchange of hot words between the appellant and the deceased-Had there been any bad blood between the deceased and appellant neither the deceased would have agreed to accompany the appellant to any place nor his elders would have permitted him to do so-Prosecution has failed to prove any motive for the alleged offence-It is not possible to hold that appellant had been guilty of giving false information-the benefit of doubt must go to the appellant-The informant had admitted that they had made inquiry for the appellant-If appellant had absconded for a long time that could have used as circumstance against him, but he surrendered in court within 18 days of lodging F.I.R.-The Chain of circumstances as per evidence adduced is not complete so as to reach to reasonable conclusions inconsistent with the innocence of the accused-Finding of guilt recorded against the appellant by trial Court can not be sustained-Judgment set aside-Appellant acquitted of all charges. (Paras 6, 8. 9, 11 & 12)
Shiva Kirti Singh, J.
1. The sole appellant is aggrieved by judgment and order dated 5th January, 2002 passed by learned 5th Additional Sessions Judge, Gaya in Sessions Trial No. 232/98/385/98 whereby he has been convicted for the offence under sec. 302 I.P.C. and sentenced to undergo rigorous imprisonment for life and a fine of Rs. 15,000.00 and in default to undergo rigorous imprisonment for a further period of 3 years. He has also been convicted under sec. 201 I.P.C. and sentenced to three years rigorous imprisonment along-with a fine of Rs. 5000.00 and in default whereof he has to undergo rigorous imprisonment for a further period of one year.
2. This criminal case arises out of Gurua RS. Case No. 51 of 1997 lodged by informant Md. Shahabuddin (RW. 5) against this appellant and two unknown persons. The prosecution case in brief is that on 9.12.97 at 7 A.M. in the presence of the informant, this appellant came to Darwaja of the informant and called out his 16 years old son Md. Badud and urged him to accompany him to village Mugrain which happened to be the village home of maternal uncle of Md. Badud. Allegedly, at about 7.30 A.M. Md. Badud went out of the house with the appellant professing that he would go to village Mugrain. In the evening at about 7 the appellant came back to the village but Md. Badud did not return. The informant claims that the appellant on enquiry disclosed that Md. Badud had stayed in village Mugrain at his maternal uncles house and that he was planning to go out to some other place also. On the next day the informant made enquiry at village Mugrain and found that Md. Badud has not gone to that village. On returning he searched for the appellant but could not meet him then he went to another place Amas to make enquiry. On 11.12.1997 he went to another place Hemjapur to make enquiry then he made further enquiry from the appellant and on learning that Md. Badud was planning to go out to some other place the informant allegedly went to Calcutta to search for his son at his relatives place and came back disappointed on 14.12.97 and on 15.12.97 in the evening when he was going to ease himself, some children in the village disclosed that a dead body was lying in a sugar cane field emitting foul smell. The dead body was located in the field of one Ram Swaroop Mahto and was identified as dead body of informants son Md. Badud. The dead body was guarded by the informant in the night and in the morning of 16.12.97 the police came to the village and recorded the fardbeyan of the informant. The signature of the informant on the fardbeyan has been marked as Exhibit-3 and the formal F.I.R. has been marked as Exhibit-4.
3. After preparing inquest report which has been proved by formal witnesses RWs. 3 and 4, the Investigating Officer Yamuna Prasad (RW. 6) sent the dead body for postmortem examination which appears to have been done by Dr. N.K. Sinha who could not be examined as a witness probably because he has retired from service as Head of the Department of Forensic Medicine in A.N.M.M.C.H., Gaya. However, his handwriting on the post mortem report was proved by Dr. Arbind Prasad (P.W. 7) and the post mortem report was marked as Exhibit-1. According to the post mortem report some parts of the dead body had decomposed and such post mortem injuries were marked as injury no. 1. The ante mortem injury was marked as injury no. 2 which was transversed incised wound over middle of neck on frontal side of the size 6 1/4" x 1 1/2" x 1/4" bone deep with sharp cut of cervical body of vertebra. The injury no. 2 as noticed was found to be cause of death and the time elapsed since death mentioned in the post mortem report is approximately within 5 to 7 days. The post mortem report shows that the autopsy was done on 16.12.1997 at 2.15 P.M. After recording the statement of witnesses and completing investigation the Investigating Officer submitted charge-sheet only against the appellant who was charged for the offence unde
