JUDGMENT
Mridula Mishra, J.
1. Both the appellants have been convicted under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. They have further been convicted under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for eight years by the 2nd Additional Sessions Judge, Madhubani in Sessions Trial No. 263 of 1999 by judgment and order dated 2.12.2000/4.12.2000.
2. The fardbeyan of Soti San was recorded by the Sub Inspector of Police Birendra Nath Singh on 18.12.1998 at 4.15 p.m. in Lalai Gachhi in village Karihar. In the fardbeyan the informant stated that on 18.12.1998 at about 2 p.m. he was informed by his villager Lalit Yadav that the dead body of his daughter Mina Kumari was lying in Lalai Gachhi. On this information he alongwith his family members came to Lalai Gachhi. At Lalai Gachhi in the orchard of Thakkan Jha he found that his daughter Mina Kumari was lying dead in naked condition and blood was oozing from her private part and her mouth was swollen. Her under garment was full of blood and it was lying by the side of her dead body. He apprehended that his daughter has been raped and thereafter she has been killed. At that very time his wife informed him that on previous day i.e. on 17.12.1998 when her daughter Mina Kumari had gone to collect cow dung in Lalaigachi the accused Raje Mishra, Nirala Mishra, Amar Mishra chased her for which the mother of the deceased Mina Kumari had scolded them. The informant had suspicion that these accused persons raped her daughter and thereafter killed her, when she had gone to collect cow dung,
3. On the basis of the aforesaid fardbeyan case was registered under Sections 376/302/34 of the Indian Penal Code against Raje Mishra, Nirala Mishra and Amar Mishra. In course of the investigation the name of Navin Mishra was added as accused. After completing the investigation, the charge-sheet was submitted, cognizance was taken and the case was committed to the Court of Sessions. It was found that one of the accused was juvenile therefore, his case was separated and the case of these appellants was tried by the Sessions Court and after trial the appellants have been convicted as aforesaid.
4. The prosecution has examined in all 11 witnesses but none of the witness are eye-witness to the occurrence. PW 1 is the formal witness who has proved carbon copy of the inquest report Ext. 1 PW 2, PW 4 and PW 7 who are mother, brother and father of the deceased have deposed that they saw accused persons fleeing away from place of occurrence when they were coming there. PW 3 has stated that he saw appellant Amar standing near the dead body, while he was returning his home. PW 5 is a minor boy who informed PW 7 about the dead body of his daughter lying at Lalai Gachhi. PW 6 has been declared hostile. PW 8 is formal inquest witness. PW 9 is the doctor who has conducted postmortem on the dead body of deceased. PW 10 is formal witness who-has proved formal FIR Ext. 5 PW 11 is IO of the case.
5. PW 2 Bhago Devi is the mother of the deceased Mina Kumari. She has stated that on the alleged date of occurrence at 2 p.m. her daughter went to collect cow dung at Lalai Gachhi where she was raped and killed by the accused persons. She disclosed that one day prior to the occurrence the accused persons had surrounded her daughter at Lalai Gachhi in her presence. She had seen the accused persons fleeing away while she was coming to Lalai Gachhi. She has stated that her house is situated one and half kilo meters away from the place of occurrence and on information she had gone there. She has also stated that the police came at the place of occurrence i.e. Lalai Gachhi after two hours. Her statement was recorded by the police before any other persons statement was recorded. She has denied the suggestion that her daughter died as she fell from the tree.
6. PW 3 has stated that on the alleged date of occurrence at about 1 O’clock in the afternoon he was returning from Soharwa to his house. He reached in the Lalai Gachhi and saw a dead body in the orchard. Four persons were there out of them three fled away but Amar remained standing near the dead body. He called Lalit, PW 5 who came and identified the dead body of the daughter of Soti Sah. Thereafter Lalit went to inform and Soti Sah’s family members came there. Soti Sah did not come PW 3 remained near the dead body for one hour. In cross examination he has stated that at that time no one was near Lalai Gachhi. ‘He raised alarm and on his alarm Lalit came. His statement was recorded by the police on the same day in the evening and by that time several persons have assembled near the dead body. No one had gone to police out post to give information regarding the dead body. He also admitted that the accused persons were not seen by him earlier. Soti Sah was also not known to him and he came to know them after the occurrence. He has denied the suggestion that he has not seen anything and he has deposed at the request of Soti Sah.
7. PW 4 Saroj Sah has stated that his sister Mina Kumari had gone out of the house at 9 a.m. on the date of occurrence. He was at his residence when Lalit came and informed that the dead body of his sister is lying at Lalai Gachhi. He went there and saw the dead body. Undergarment of his sister was full of blood and was lying by the side of the dead body. While he was going to Lalai Gachhi he saw Navin Mishra, Raje Mishra, Binod Mishra and Amarjit fleeing away. In his cross-examination he has stated that on the date of occurrence his sister had gone out of the house at 9 O’clock but she did not return till 11 O’clock. Lalit had given information at 2 O’clock. At that time his mother and father were present in the house. He has stated that in between Lalai Gachhi and his house the distance is 1 mile. A suggestion has been given to this witness that because of enmity and rivalry between two tolas appellants have been falsely implicated in this case which has been denied.
8. PW 5 is Lalit Kumar Yadav who had given information to the parents of the deceased Mina Kumari. At the time of occurrence this witness was minor. He has stated that on the date of occurrence he was in his field. PW 3 called him from Lalai Gachhi. He went there and saw the dead body of Mina Kumari lying there. He identified the dead body and went to inform her father. While he was going to inform he saw that Amarjit was coming towards Lalai Gachhi. He has stated that when PW 3 called his name at that very time he also called Amarjit. He has said that the Children of the tola used to go to Lalai Gachhi to collect cow dung and fire wood. He has stated that when he had gone to inform Soti Sah no one was present near the dead body. Subsequently 20-25 persons came there. He has denied that he deposed in this case because of his cordial relationship with the family of PW 7.
9. PW 7 is the informant, the father of the deceased. He has stated that on the date of occurrence he was at his residence and at that time he was informed by PW 5 that his daughter is lying dead at Lalai Gachhi. He alongwith his family members went there and saw the dead body of his daughter. Blood was coming from her private part and her under garments were smeared with blood. There were broken pieces of bangles and scratch mark on the thigh of his daughter. The basket full of cow dung was there. He has stated that while he was coming to Lalai Gachhi he saw Amarjit Mishra, Navin Mishra, Binod Mishra, Raje Mishra. They were coming out of Lalai Gachhi and were fleeing towards their houses. In Lalai Gachhi his wife disclosed that one day prior to the occurrence the accused persons had tried to misbehave with his daughter. His wife had scolded them. He has stated that he went to Hatni outpost to inform the police after Lalit informed him that his daughter is lying dead in Lalai Gachhi. Police came at the place of occurrence subsequent to his arrival, at that time PW 3 was also present at the place of occurrence. No seizure list was prepared in his presence. He has stated that at about 11 a.m. his daughter had gone to collect cow dung and though she did not return till 2 O’clock no information was given to any one and no search was made. A suggestion was given to this witness that his daughter had died due to fall from the tree, and due to enmity the appellants have been falsely implicated in this case, which has been denied.
10. PW 9 is the doctor who has conducted the postmortem on the dead body of deceased Meena Kumari. He has stated that on 19.12.1998 he was posted at Sadar Hospital and on that day at 12 p.m. he had conducted the post mortem on the dead body of the deceased namely Meena Kumari. He found bruise three in number 1′ x 1/4′ on left cheek. Abrasion 3′ x 1/2′ on the right side of neck three in number and bruise 1′ x 1/4′ on the cheen. On examination of Genitriha he found 1. blood clot present over the valve in the vaginal canal. 2. Laceration of the vaginal mucusmefra. 3. Hymen ruptured. On dissection he found 1. fracture of 3rd, 4th and 5th ribs. 2. Laceration on the right lungs. 3. chest cavity full of blood. 4. Heart :–left chamber empty and right chamber contains little amount of blood. According to PW 9 he had also found the evidence of attempt of rape. The death was caused due to haemorrhage and shock caused due to above mentioned injuries. He has also proved postmortem report which is Ext. 3. The time since death within 24 hours, a suggestion was given to PW 9 that fall from tree may cause all injuries, which was not denied by him.
11. PW 11 is the Investigating Officer. He has stated that on 18.12.1998 he came to know on rumor that some one has been killed at village Karihar and he came at lalai Gachhi alongwith the Jamadar. He recorded the fardbeyan of PW 7. He found the dead body lying at the place of occurrence. He sent the dead body for postmortem and seized some articles which were found near the dead body. He has said that no information was given at police station by any one regarding the occurrence. He did not found any blood stain at the place of occurrence where the dead body was lying. He has also stated that none of the witnesses stated before him that the accused persons were seen in the company of the deceased. In the FIR PW 7 had not stated that while he was coming at the place of occurrence he saw the appellants running from the place of occurrence.
12. The counsel appearing for the appellants has stated that it is undisputed that Meena Kumari was found dead in suspicious circumstance, but allegations regarding their involvement is not correct. Evidence brought by prosecution makes case of prosecution false. This story that appellants were seen fleeing away from the place of occurrence, has been introduced for the first time in the Court at the time of deposition. It has also been stated that it is improbable that the accused appellants will remain present at the place of occurrence for their identification till the witnesses came at the place of occurrence. PW 3 has stated that at 1 O’ clock when he reached Lalai Gachhi he saw the dead body. It has been stated by PW 2, PW 4 and PW 7 that when they came at the place of occurrence at 2 O’ clock, they saw appellants fleeing away from the place of occurrence. In this circumstances, it is highly unbelievable that the appellants remained for their identification at the place of occurrence till the witnesses came.
13. it has further been submitted that all the witnesses have stated differently where they saw the appellants when they were coming to Lalai Gachhi. PW 2 has said that she saw appellant Amar going towards his house. PW 4 has stated that he saw the appellant quite far away from Lalai Gachhi and PW 7 has stated that he had seen the appellant just near the Lalai Gachhi. Thus, the witnesses have contradicted one another. Witnesses have also contradicted themselves on the point of time when the deceased had gone to collect cow dung. PW 4 has stated that the deceased left her house at 9 O’clock in the morning PW 2 has stated at 2 O’clock her daughter went to collect cow dung and PW 7 has stated that she left the house at 11 a.m. On each and every point witnesses have contradicted one another. There is no consistent evidence on any of the points or any of the circumstances.
14. Admittedly this is a case based on circumstantial evidence as there is no eye-witnesses to the occurrence. In dealing with the circumstantial evidence there is always danger that conjectures or suspicion may take place of legal proof. It is, therefore, necessary that when the evidence is of a circumstantial nature, the circumstance from which the conclusion of the guilt is to be drawn, should in the first instance be fully established. Facts so established should be consistent only with the hypothesis of the guilt of the accused, there must not be any reasonable ground for conclusion consistent with their innocence. Chain of circumstances should be complete in such manner as to show that in all human probability the act must have been done by the accused.
15. In the present case the prosecution has not been able to bring the evidence to complete the chain of circumstances to rule out the reasonable likelihood of the innocence of the appellants. The evidence against appellants is that they were seen running away from the place of occurrence by PW 2, PW 4 and PW 7. No one has seen Amar and Navin in the company of the deceased when she was alive. On the point of running away from the place of occurrence the evidence of all prosecution witnesses is contradictory. PW 3 has stated that he found Amar standing near the dead body. PW 5 has said that when PW 3 called him he also called Amar and both went near dead body. PW 2 has stated that she saw all accused running away from Lalai Gachhi. PW 4 stated that he saw Amar going towards Lalai Gachhi. So far case of appellant Navin is concerned there is. no evidence that he was either seen standing near the dead body or fleeing away from the place of occurrence. Only evidence is the statement of PW 2, that one day prior to occurrence accused persons tried to surround the deceased, in her presence. Even this incident was not disclosed by PW 2 to her husband PW 7 and son PW 4. In the FIR it has not been mentioned that PW 7 or anyone saw the accused appellants fleeing away from the place of occurrence. This story has been introduced for the first time in course of trial. Evidence which is on record is nothing more than suspicion.
16. In such circumstances, although the offence is grave and heinous since there is no satisfactory proof of the guilt. We have no other option but to give the benefit of doubt to the accused. Accordingly the appeal is allowed and conviction and sentence of accused appellants is set aside. The appellants who are in jail be released forthwith if not wanted in any other case.