Suspicion alone cannot substitute for proof in criminal cases; the prosecution must establish a clear chain of circumstantial evidence to support a conviction.

JUDGMENT :

Ashutosh Kumar, J.

1. Heard Mr. Ajay Mukharjee and Mr. Sunil Prasad, the learned Advocates for the appellant and Mr. Abhimanyu Sharma, learned Additional Public Prosecutor for the State.

2. The appellant has been convicted for the offences under Sections 302 and 201 of the Indian Penal Code vide judgment dated 26.08.2016 passed by the learned 1st Additional Sessions Judge, Banka in Sessions Trial No. 519/2014/Trial No. 522/2016 arising out of Amarpur P.S. Case No. 107/2014, G.R. No. 708/2014. By order dated 01.09.2016, he has been sentenced to undergo R.I. for life, to pay a fine of Rs. 5,000/- and in default of payment of fine, to further suffer S.I. for three months for the offence under Section 302 IPC and R.I. for seven years along with a fine of Rs. 5,000/- and in default of payment of fine, to further suffer S.I. for three months for the offence under Section 201 IPC.

3. In an unfortunate incident, young siblings of the age of five years and two years respectively, were found dead in a well.

4. The allegation has been raised by the mother of the children(deceased) that her husband/appellant (father of the deceased children) had killed both of them and had thrown them in the well to conceal the offence. The mother/Lukho Devi @ Lukha Devi (P.W-4) had lodged the fardbeyan on 28.04.2014 at 6:00 pm near the well, from where the dead bodies were recovered, that in the previous night i.e. on 27.04.2014, the appellant had demanded Rs. 60,000/ (Rupees sixty thousand) from her. When she expressed her inability to ask her people to arrange for the money, she was assaulted by her husband. As a result of that, she became unconscious. When she regained her senses, she did not find either her husband or her children. On 28.04.2014, she heard a rumor in the village that the dead bodies of two children have been found in a well in village Kasraha, approximately three kilometers away from her home. The dead bodies were of her son and daughter. She, therefore, suspected that her husband /appellant/ Pappu Yadav had killed the children and thrown their dead bodies in the well.

5. On the basis of the aforenoted fardbeyan statement of P.W.-5 filed its case vide Amarpur P.S. Case No. 107 of 2014 dated 28.04.2014 was registered for investigation against the appellant for the offences under Section 302 and 201 of the Indian Penal Code.

6. The postmortem examination clearly depicts that both the deaths were caused because of hemorrhage and shock as a result of head injuries. Both the deceased were bleeding from the nose and there were concussions in the brain. The postmortem report further revealed that both the deceased died of the head injury and not out of asphyxia. This opinion of the doctor /Dr. Ajaj Masih/P.W.-6 confirms that the deceased/children were assaulted and thereafter thrown in the well.

7. Who did that is the question which the Trial Court was beset with. The mother of the deceased i.e the wife of the appellant as has been noted, suspected him to have committed the murders.

8. It has come during the evidence that the deceased were the legitimate children of the appellant and Lukho @ Lukha Devi. The question which bothers us is the propelling force which would have goaded a father to kill his two children.

9. Out of the wedlock of the appellant and Lukha Devi, three children were born. There is no information on record about the third child. For the refusal of the mother of the deceased to arrange for sixty thousand rupees for her husband, it is hardly probable that a father would kill his own children.

10. During the Trial, six witnesses were examined including the doctor but the IO has not been examined. This poses a difficulty in the very factum of the deceased children being taken out from the well being proved at all.

11. Yogendra Yadav (P.W-1), who is the grandfather of the children had no idea about the appellant having killed them. He learnt about the occurrence only after he was told by the villagers that Lukho @ Lukha Devi