JUDGMENT
M.L. Visa, J.
1. Both these appeals arising out of the same judgment dated 25.11.1997 and order dated 26.11.1997, against which they have been preferred, have been heard together and are being decided by this common judgment. Both the appellants have been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/- each to the wife of deceased and in default to undergo simple imprisonment for one month under Section 302, Indian Penal Code and to undergo rigorous imprisonment for five years and to pay a fine of Rs. 500/- each to the wife of deceased and in default to undergo simple imprisonment for fifteen days under Section 201, Indian Penal Code.
2. The case of prosecution, as disclosed in the First Information Report (Exhibit-4) of informant Ramadhar Mahto (P.W. 9), in short, is that on 17.7.1993, informant was in his shop where he came to know that wife of this brother Banshidhar was weeping. Informant then went to the house of his brother Banshidhar and enquired from his wife why she was weeping on which she told him that on the night of previous day at about 8.30 p.m. when her husband was taking meal, appellant Somaru Mahto alongwith one man came to her house and asked her husband to go to the Dalan of Amardayal Mahto for sleeping and further told him that Amardayal was calling him. On this, she told appellant Somaru Mahto that because it was raining at that time, therefore, her husband would sleep in her own house but appellant Somaru Mahto and his companion started repeatedly asking her husband for going to the Dalan of Amardayal Mahto for sleeping. On being asked, Somaru Mahto disclosed the identity of his companion as appellant Dev Raj Mahto. Banshidhar Mahto took his bed and left his house alongwith both the appellants. On the next day in the morning when he did not return to his house, his wife started weeping. The informant pacified the wife of his mother and be himself, alongwith his other family members, started marking search for his bro her and on 18.7.1993 at about 4 p.m., he heard hulla that a dead body was found buried near heap of bundles of paddy crop in front of the Dalan of appellant Somaru Mahto, When the informant went there, he fiat foul smell and after removing earth and straw, he found a dead body which was of his brother Barshidhar. On hulla, villagers assembled there and started assaulting appellant Gomaru Mahto and informant then himself ran to Police Station and lodged , the First information Report (Exhibit-4). The first information report (Exhibit-4) of informant was lodged on 18.7.1993 at about 5 p.m. in which after narrating the aforesaid fact, he stated that he was of the firm belief that both the appellants, conniving with wife of appellant Somaru Mahto and their other companions, committed the murder of his brother and concealed the dead body in front of Dalan, About the motive of occurrence, he stated since last few days, there was rumour in village that the deceased was entangled with the wife of appellant Somaru Mahto. He further stated that Dalan of Amardayal Mahto is near the place of occurrence where his deceased brother used to sleep everyday. On the basis of first information report (Exhibit-4) of informant, a case under Sections 302, 201/1206/34, Indian Penal Code was registered against both the appellants and Usha Devi, wife of appellant Somaru Mahto. The police, after investigation, submitted charge-shegt against both the appellants and co-accused Usha Devi, and after taking cognizance/the case was committed to the Court of Session where charges under Sections 120B and 201, Indian Penal Code against both the appellants and co-accused Usha Devi and additional charge under Section 302, Indian Penal Code against both the appellants were framed. The appellants denied the charges. During trial, no witness was examined on behalf of prosecution but from the trend of cross-examination of prosecution witnesses, their case appears to be of their complete innocence and their false implication in this case. After that, co-accused Usha Devi was not found guilty and she was acquitted So far appellants are concerned, they were not found guilty under Section 1206, Indian Penal Code but were found so under Sections 302/201, Indian Penal Code and we reconvicted and sentenced, as indicated above.
3. IN order to prove its case, prosecution has examined twelve witnesses. Ramadhar Mahto (F.W. 9) is the informant. Dr. Pursushottam Singh (P.W. 11) is the doctor who conducted autopsy on the dead body of deceased. Surendra Kumar (P.W. 12) is the Investigating Officer of this case. Rajmunna Devi (P.W. 1) is the wife of deceased. Yamuna Pandey (P.W. 2) has denied knowing anything about the occurrence although he has proved his signatures (Exhibits-1 and 1/1) on inquest report and seizure list but at the same time has said that neither the dead body was recovered nor anything .was seized by police in his presence. He has been declared hostile. Mukhraj Dusadh (P.W 3), Sardar Ram (P.W. 5), Yogendra Singh (P.W. 6) and Lakha Muni Kumari (P.W. 8) have also been declared hostile because they have said that they had not seen the occurrence. Prahlad Mahto (P.W. 4) and Tulsi Mahto (P.W. 7) are tendered witnesses.
4. Dr. Purshottam Singh (P.W. 11), in his evidence, has said that on 19.7.1993, he was posted as Civil Assistant Surgeon, Ara and on that date at 10-15 a.m., he held autopsy on the dead body of deceased and found the following:
(1) Rigor mortis was absent. Featuresof decomposition started.
(2) External injuries:
(i) incised wound 2″ x 1″ x muscle deep elliptical shape on right antro lateral part of leg. On dissection, sharp cut of great vessels of right side (carotid artery and jugular vessels). Haematoma was present in muscles place. Decomposition prevail.
(ii) incised wound 1/2″ x 1 ” and 1″ x 3/4″ both muscle deep on anterior part of neck.
(iii) incised wound 1″ x 3/4″ x bone deep on upper part of nose. On dissection, there was sharp cut of nasal process of frontal bone.
(iv) incised wound 1/2″ x 1/4″ x muscle deep on left ear.
(v) skin denuded at various places on whole of the body.
Dissection of skull and cranial cavity:
Brain matter was paled. Liquification had started.
Dissection of chest:
Heart was empty. Lungs paled. Dissection of abdominal cavity.
Intestine discolored (Greenish). There was greenish discoloration of under surface of lever. Spleen paled. Kidney paled. Stomach contained digested fluid three ounces. Urinary bladder contained to ounces of urine.
In his opinion, cause of death was hemorrhage and shock caused by abovementioned injuries which all were caused by sharp cutting weapon, may be Garasi and injury No. (i) was sufficient to cause death in ordinary course of nature and time elapsed since death was two to four days. He has proved his post mortem examination report which is marked Exhibit-3.
From the evidence of this witness, it is established that the death of deceased was homicidal. Naw, it has to be seen what evidence has been adduced by the prosecution to hold the appellants responsible for the injuries which were found on the body of deceased which resulted into his death.
5. The entire case of prosecution is based on the evidence of Rajmunna Devi (P.W. 1), wife of deceased, informant Ramadhar Mahto (P.W. 9), Bachcha Singh (P.W. 10) and Investigating Officer Surendra Kumar (P.W. 12). None of them is an eye witness t the occurrence which has been admitted by learned Additional Public Prosecutor also according to whom it is a case of strong circumstantial evidence.
6. Rajmunna Devi (P.W. 1), the wife of deceased, in her evidence, has stated that on a Friday, her deceased husband, after returning from market, was taking meal both the appellants came to her house and appellant Somaru Mahto asked her husband to go to the Dalan of Amardayal for sleeping and at that time, appellant Dev Raj Mahto, who happens to be Phupha (uncle) of appellant Somaru Mahto, was standing at the Darwaza of the house. She has further said that her husband was not ready to go with them but on pressure, he went with them taking his bed and when he did not return on the next day in the morning, she started searching him and she also told villagers about this who also started making search for her husband and finally dead body of her husband was found in a ditch near the house of appellant Somaru where she went and saw the dead body. According to her, the neck of her husband was found cut. In cross-examination, she has said that since about two to three years prior to occurrence, her husband used to go to the Dalan of Amardayal for sleeping. In cross-examination at first place, she has said that appellant Dev Raj Mahto was known to her from before but again, contradicting this statement she has said that it was appellant Somaru who disclosed that his companion was appellant Dev Raj. She has further stated that when dead body of her husband was found, she, on suspicion, named Somaru and no body told her to have seen committing murder of her husband. Informant Ramadhar Mahto (P.W. 9) has said that one day when he was in his shop, one villager informed him that wife of this brother Banshidhar was weeping and on this information, he closed his shop and went to the Mouse of his brother Banshidhar where wife of Banshidhar told him that her husband returned from market on 16.7.1993 and at that time, it was drizzling, therefore, she asked her husband to sleep in their own house but appellant Somaru Mahto came to her house and asked the deceased for going with him for sleeping in the Dalan of Amardayal and at that time one more person was with appellant Somaru Mahto who was standing at the door and Somaru told that he was appellant Dev Raj Mahto who was also going to sleep in the Dalan of Amardayal. He has further said that wife of Banshidhar told him that her husband (deceased) after taking meal, took his bed and went with Somaru and on the morning of the next day, he did not return to his house. Search for Banshidhar started but he could not be found for whole day and on the next day also, search was made and on that day, it was found that the Dalan of appellant Somaru, which used to remain open everyday, was locked which caused suspicion and Dalan of appellant Somaru was got opened by villagers through appellant Somaru and from Dalan, a blood-stained was recovered and blood was found sprinkled on the wail of Dalan. The villagers caught hold of appellant Somaru and started assaulting him when he confessed that after killing the deceased, he had concealed the dead body in the husk near his house and then villagers recovered the dead body of deceased and, thereafter, fie went to Police Station and lodged the first information report which was recorded by police and he put his signature on it (Exhibit-2). Bachcha Singh (P.W.10), in his evidence, has said that on the night between 16.7.1993 and 17.7.1993, deceased had gone to sleep at the Darwaza of Prahlad Mahto, who is father of Amardayal Mahto and deceased did not return to his house on the next morning and there was hulla in the village that deceased had not returned and a search for him started and on Sunday at about 12-1 p.m., there was hulla in the village that the dead body of deceased had been recovered at a distance of about two yards from the Dalan of Appellant Somaru Mahto. He has further stated that deceased was murdered because there was rumour that he was entangled with the wife of appellant Somaru Mahto and there was also rumour that Amardayal was also entangled with that woman and appellant Somaru Mahto was knowing about this illicit relationship. He was further said that on receiving information that the dead body of deceased was recovered when he was going to that place, he, in Vita way, saw Amardayal Mahto and Ramjee Mahlo running away by the side of road in nervousness and when he went to the place where dead body was found lying, thousands of persons had assembled there and appellant Somaru was being assaulted and informant was also there who went to lodge the first information report, and appellant Somaru, out of fear, was telling that he had committed the murder of deceased with Garasi and villagers were saying that deceased had illicit relationship with the wife of appellant Somaru, therefore, Amardayal Ramjee and the appellants had committed the murder of deceased. Surendra Kumar (P. W. 12), the Investigating Officer of this case has said that on 18.7.1993, he had recorded the first information report of informant and he has proved the first information report which, according to him, is in this writing and signature (Exhibit-4). He has said that he took up the investigation of the case and visited the place of occurrence and found the dead body buried in a ditch near a heap of husk in front of the Dalan of appellant and he prepared an inquest report (Exhibit-5). He has further said that on the wall of inner,, part of Dalan, he found blood-stains and he also recovered an axe and appellant Somaru Mahto was shouting that he had committed the murder of deceased with that axe and he seized blood-stained soil from the inner wall of Dalan and prepared seizure list (Exhibit-8).
7. From the evidence on record we find that entire case of prosecution is based on the evidence of wife of deceased, Rajmunna Devi (P.W. 1), that deceased had gone with appellants for sleeping in the Dalan of Amardayal, of informant Ramadhar Mahto who has said that from Dalan of appellant Somaru Mahto, a blood-stained axe was recovered and marks of drops of blood were found on the wall of Dalan, of Bachcha Singh (P.W. 10) who has said that appellant Somaru Mahto made extra judicial confession before him and villagers and of Investigating Officer Surendra Kumar (P.W. 12) that he had recovered an old axe from the house of appellant and he was shouting that with that axe he had committed the murder of deceased and he found marks of drops of blood sprinkled on the wall of Dalan. According to case of prosecution, the deceased went with both appellants to sleep in the Dalan of Amardayal on the night of 16.7.1993. As he did not come back to his house on the next day that is on 17.7.1993, in the morning, his wife started weeping and when informant came to know this, he went to the house of deceased where he came to know from the wife of deceased that deceased had left his house on 16.7.1993 with the appellants and had not come back till the next day, he then started making search for his brother and on the next day that is on 18.7.1993 at about 4 p.m., he found the dead body lying in the village and he then went to Police Station for lodging the first information report It is very surprising that deceased went with appellants on the night of 16.7.1993 to sleep in the Dalan of Amardayal and did not come back on the next day in the morning and his wife started weeping and informant came to her, enquired from her the reason for the weeping and, thereafter, came to know that his brother had left the house on the previous night and, thereafter, he also started making search for his brother not only for the whole of that day but also till evening of the next day and in between his period, he did not think it necessary either to go to Police Station himself or to send somebody for lodging the information about his missing brother and first information report was lodged on 18.7.1993 at 5 p.m. that is or the third day of leaving the deceased his house. This is what which is stated in the first information report (Exhibit-4). Rajmunna Devi (P.W. 1), in para-2 of her cross-examination, has said that after recovery of the dead body of her husband on the next day, her statement was recorded by police and in the meantime, she had not told any body that her husband had gone to sleep in the Dalan of Amardayal. It means that her statement was recorded by Investigating Officer 19.7.1993 and till recording her statement, she had not disclosed to anybody that her husband had left his house on 16.7.1993. It casts a serious doubt on the evidence of informant that she on 17.7.1993 had told him that her husband had left his house and went with appellants on the previous night. She has further said that wen her husband did not return to her house, she did not go to the house of Amardayal or appellant Somaru for searching her husband and before recovery of the dead body of her husband, She had not informed either the Chaukidar Dafadar or Mukhiya of the village. Her this conduct appears to be quite unnatural. She has further stated that her husband had gone with the appellants at his own will and on recovery of tier dead body, she named appellant Somaru because of suspicion, informant Ramadhar Mahto (P.W.9) has said that after recovery of a blood-stained axe from the Dalan of appellant Somaru Mahto and finding marks of drops of blood sprinkled on the wall of Dalan of appellant Somaru Mahto and making confession by appellant Somaru Mahto before villagers, he had gone to Police Station where he lodged the first information report (Exhibit-4) but it is very surprising that the first information report (Exhibit-4) does not contain any statement that any blood-stained axe was recovered from the Dalan of appellant, he had seen marks of blood drops on the wall of Dalan of appellant Somaru Mahto and there was any extra judicial confession by appellant Somaru Mahto before the villagers. Had the informant seen the recovery of blood-stained axe from the Dalan of appellant or marks of blood drops on the wall of Dalan of appellant Somaru Mahto or had he heard appellant Somaru Mahto making extra judicial confession before villagers, he must have stated all these facts in the first information report (Exhibit-4). Informant, in his evidence, has admitted that in his further statement also, he did not state that a blood-stained Garasi was recovered from the Dalan of appellant Somaru Mahto or he had seen marks of blood drops in the Dalan and when appellants Somaru Mahto was assaulted, he confessed his guilt. So far evidence of Bachcha Singh (P.W. 10) that on the night between 16.7.1993 and 17.7.1993, deceased had gone to the Dalan of Amardayal Mahto for sleeping is concerned, he, in cross-examination, has said that he had only heard about it but he has not named the person from whom he had heard it. His evidence that there was rumour in the village that deceased Amardayal Mahto had illicit relationship with wife of appellant Somaru Mahto and when he was going to see dead body of deceased on getting information of its recovery, he saw Amardayal Mahto and Ramjee Mahto running away on road in nervousness, brings Amardayal Mahto also within the circumstance of doubt. But this point does not require any further discussion because Amardayal Mahto was not an accused before the trial Court, About evidence of this witness that appellant Somaru Mahto made extra judicial confession, he has clearly stated that because of fear of assault, appellant Somaru Mahto said that he had committed murder of deceased with Garasi. The evidence of Investigating Officer that he recovered an old axe from the Dalan of appellant Somaru Mahto, does not make out any case against the appellant because getting an axe in the house of a villager, is not an unusual thing because it is generally found in every house in village. Investigating Officer has not said that the axe was stained with any blood what to say of human blood and this evidence makes the evidence of informant that a blood-stained axe was recovered from the house of appellant Somaru, quite doubtful. About the evidence of Investigating Officer that he seized blood-stained soil from the wall of Dalan of Somaru, we do not find that there is any report on record to show that the soils contained any human blood.
8. In the case of Mandip Dugadh and Ors. v. State of Bihar 1985 P.L.J.R. 849, it was held that in absence of report of chemical examination, it was difficult to accept that a Fasuli, said to be recovered from the house of appellant, contained blood-stain and that too of a human being, in the present case, the position is more weak for prosecution because the Investigating Officer does not say that he recovered a blood-stained axe from the Dalan of appellant and has simply stated that an old axe was recovered. The seizure list (Exhibit-6) also shows that an old axe was recovered from the Dalan of appellant Somaru and nowhere it is stated that this axe was stained with blood. About the blood-stained soil, there is no report that the soil contained any blood what to talk of human blood.
9. Considering the entire evidence on record, we find that so far appellant Devi Raj Mahto is concerned, there is absolutely no evidence against him except that when the wife of deceased enquired from appellant Somaru Mahto about this companion, he disclosed that he was Dev Raj Mahto. So far appellant Somaru Mahto is concerned, we find that except the evidence of wife of deceased that her husband, at his own will, had gone with him taking his bed to sleep in the Dalan of Amardayal, there is no material against him. It may be a case of deceased last seen with the appellant Somaru Mahto but then it is not a case in which different links which formed parts of the occurrence were located and which put together complete the chain of circumstances from beginning to and leading to only an irresistible conclusion that both the appellants together or any one of them committed the murder of deceased. We, therefore, find that the prosecution on has not been able to prove charges against the appellants and judgment and order of Court below holding the appellants guilty in this case cannot be upheld.
10. In the result, both the appeals are allowed, judgment and order of Court below convicting and sentencing the appellants is hereby set aside and the appellants are acquitted. Appellant Dev Raj Mahto, who is on bail, is discharged from the liabilities of his bail bonds. Issue release order in respect of appellant Somaru Mahto who is in jail for his release from jail custody at once, if not Squired in any other case.
B.K. Jha, J.
I agree.