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2014 Supreme(Pat) 641
IN THE HIGH COURT OF JUDICATURE AT PATNA
Navaniti Prasad Singh, Jitendra Mohan Sharma, JJ.
Raj Kapoor Ram & Ors. - Appellants
Versus
State of Bihar – Respondent
Criminal Appeal (DB) No. 139 of 1992
Decided on: 19th August, 2014
Advocate Appeared:
For the Appellants:Mrs. Fauzia Shakil, Advocate
For the State: Mr. Ajay Mishra, APP
Headnote:
(A) Indian Penal Code, 1860 – Sections 302/34 and 364 – Kidnapping and murder – Conviction – Where conviction is to be based upon proof of circumstances then those circumstances have to form an unbroken chain of events from which only conclusion that can be drawn is about guilt of accused – Any unexplained intervening period would break the chain – Evidence of IO does not help prosecution in any manner – It makes it worse when IO identifies place where body was found which is totally in a different direction from Railway Station – It is not case of prosecution ever that appellants did not go to their father's place – There being only two witnesses who denied such suggestion then it is not open to Additional Sessions Judge to make out a third case or Public Prosecutor to make out a different case – Prosecution has miserably failed to prove its case beyond reasonable doubts – Appellants are entitled to acquittal – Judgment and order of conviction set aside. (Paras 8 to 10)
(B) Constitution of India – Article 20(3) – Right against self-incrimination – Any statement made in any bail application filed on behalf of any accused which is not affidavited by him cannot ever be used against him as evidence – No person accused of any offence shall be compelled to be a witness against himself – Criminal applications filed for bail, quashing or even criminal writ cannot be filed duly sworn by accused himself.
NAVANITI PRASAD SINGH, J.
The three appellants, having been found guilty for offences punishable under Sections 302/34 and 364 of Indian Penal Code (IPC), having been sentenced to life imprisonment and rigorous imprisonment for ten years respectively by judgment and order dated 30.04.1992/07.05.1992 passed by the Additional Sessions Judge IV, Aurangabad in Sessions Trial No. 6 of 1987/92 of 1987, have filed this appeal.
2. The deceased Bijay Ram is the first cousin and immediate neighbour of the appellants Raj Kapoor Ram and Ghanshyam Ram and apparently is also related to Sarkar Ram, the third appellant.
3. The prosecution case is based upon Fardbayan of Kamlesh Ram (PW 2), inter alia, stating that on 16.05.1986 at about 9 pm, the three appellants came to his house and asked Bijay Ram, the brother of the informant Kamlesh Ram (PW 2) to carry some luggage to the Sone Nagar Railway Station as the appellants Raj Kapoor Ram and Ghanshyam Ram were going to their father’s place at Barwadih in the district of Palamau where he worked in the railways. The first two appellants are sons of Mahabir Ram who is the own brother of Gulab Ram (PW 1), the father of the deceased Bijay Ram. As such, it would be seen that the appellants No 1 and 2 are first cousins of the deceased. The deceased Bijay Ram asked his uncle Nabab Ram who was there and he asked Bijay Ram to accompany the appellants. This was at 9 pm. When, till midnight, Bijay Ram did not return, informant and family members did not worry because Bijay Ram invariably used to go with his cousins and stay with his uncle (father of appellants No 1 and 2) at Barwadih. In the morning at about 7 am, they were informed that Bijay Ram had been killed and his body was lying outside the village. They went, identified the body and, accordingly, upon information, the police came and recorded the statement. As per the Fardbayan, informant suspected it to be handy work of the three appellants because there was some family dispute. Upon the first information report being registered, police took up investigation and, upon completion of investigation, filed chargesheet against the three appellants who were then charged under Sections 364 and 302/34 of IPC to which they pleaded not guilty and were, accordingly, tried and convicted.
4. In order to establish the charge, prosecution has examined eight witnesses. Let it be noted that out of the eight witnesses, four have been tendered. They are all relations of the appellants and the informant. PW 1 is Gulab Ram, the father of the deceased Bijay Ram. PW 2 is Kamlesh Ram, the brother of the deceased Bijay Ram. PWs 3 to 6 are tendered witnesses. PW 7 is Laxman Ram who is a formal witness who says that he was a witness to the inquest report which report has not been brought on record. PW 8 Ram Bhuwan Ram is the Investigating Officer (IO).
5. The case is based upon the last seen theory and totally on proof of circumstances. There are only two material witnesses that is PW s 1 and 2.
6. PW 1 Gulab Ram, the father of the deceased states that in the night at about 9 pm of 16.05.1986, the three appellants came and requested Bijay Ram to help them carry their luggage and accompany them to Sone Nagar Railway Station as they were going to their father Mahabir Ram. Nabab Ram (PW 4), one of the other uncles present in the house, asked Bijay Ram to accompany. Accordingly, Bijay Ram went with the three appellants. In his cross-examination, this witness categorically admits that there have been no dispute and differences between him and Mahabir Ram, the father of appellants No 1 and 2. He admits that they had no cause earlier to suspect that the appellants would have committed the crime inasmuch as Bijay Ram frequently used to go with them and stay with their father who happens to be Bijay Ram’s uncle as well. We then have PW 2, the informant whose deposition is virtually the same. This is the only evidence we have. In nutshell what we have, the three appellants asked Bi
