JUDGMENT
Manohar Lal Visa, J.
1. This appeal is against the judgment dated 8.12.2000 and order dated 21.12.2000 passed by the 3rd Additional District & Sessions Judge, Bhagalpur, in Sessions Trial No. 618 of 1998 convicting and sentencing both the appellants to undergo imprisonment for life under Section 364 of the Indian Penal Code.
2. Briefly stated, case of prosecution is that on 13.12.1996 at about 4.30 p.m. both the appellants along with co-accused Satna Mandal came to the house of informant Radha Devi (PW 4) where informant was with her mother Kusma Devi, her elder sister Madho Devi (PW 5) and her brother Shankar Mandal (not examined). Appellants and Satna Mandal caught hold of mother of informant and started assaulting her and took her to the bank of Ganga river where they put her on the boat of Satna Mandal and took her on the other bank of river. Informant, her brother and sister tried to rescue their mother but appellants and Satna Mandal pushed them and assaulting their mother took her on the other side of the river and there also they put their mother on a small boat and through the main stream of river went towards north. Informant, her brother and sister raised alarm but nobody from their Mohalla came for their help and thereafter, informant informed the Barari Police by telephone and police immediately reached and made search for the mother of informant. The fardbeyan of informant was recorded on the same day at about 8 p.m. by S.I. Surendra Choudhary (PW 7). About the motive .of occurrence informant in her fardbeyan has stated that prior to occurrence daughter of Satna Mandal, aged about 1-1/2 years had died and since then appellants and Satna Mandal were saying that mother of informant was a witch and was responsible for the death of daughter of Satna Mandal. Informant in her fardbeyan apprehended that in order to commit murder of her mother appellants and Satna Mandal forcibly abducted her mother and took her across the river on a boat. A case under Section 364, IPC was registered against the appellants and Satna Mandal and after investigation chargesheet against them was submitted. Cognizance of the case was taken and the case was committed to the Court of Session. Satna Mandal died before the case was taken up for hearing on charge matter and therefore, charge under Section 364, IPC was framed against both the. appellants who, after trial, were found guilty and were convicted and sentenced to undergo imprisonment for life.
3. The case of appellants, as it appears from the evidence or two witnesses examined on their behalf and trend of cross- examination of prosecution witnesses is of complete denial of charge and their false implication.
4. Altogether 7 witnesses on behalf of the prosecution have been examined. Radha Devi (PW 4) is the informant. Madho Devi (PW 5) is sister of informant. Purni Devi (PW 6) is the ‘bhabhi’ of informant and is a hearsay witness. Surendra Choudhary (PW 7) is the I.O. Sagar Pd. Mandal (PW 1) has said that at the time of occurrence he was not present in his house and when he came to his house he heard that appellant Ratan Mandal had taken away the mother of informant. In cross- examination he has stated that earlier his statement was not recorded. Buchar Mandal (PW 2) and Raghu Nandan Mandal (PW 3) have stated that they know nothing about the occurrence and they have been declared hostile.
5. There are only two witnesses claiming themselves to be eye witnesses to the occurrence who are informant and her sister Madho Devi (PW 5). Radha Devi (PW 4), the informant, has said that at the time of occurrence she was in her house when both the appellants and Satna Mandal came there and forcibly took away her mother and on her protest they assaulted her. She has further said that appellants and Satna Mandal took her mother across the Ganga river on a boat of Satna Mandal fitted with generator and they committed the murder of her mother. She has further said that she went to police station where her fardbeyan was recorded by police which was read over to her and she put her LTI on it. In cross-examination she has said that at the time of occurrence she raised ‘hulla’ but no body said anything out of fear. In para 21 she has said that she had no enmity with the appellants but they are criminals and, therefore, they committed the murder of her mother. In para 17 she has said that she did not see the murder of her mother and she never saw her dead body. In para 19 she has said that her statement by police was recorded on the next day of occurrence and in para 32 of her evidence she has said that her statement was recorded only once by police which was in three pages on which she had put her LTI. Madho Devi (PW 5), sister of informant, has said that at the time of occurrence appellants and Satna Mandal came her house and forcibly took her mother across the river on a boat where they committed her mother by repeatedly submerging her in mud. Purni Devi (PW 6) is daughter-in-law of deceased and she, in her evidence, has said that appellants along with Satna Mandal committed the murder of her mother-in-law by saying her a witch. In cross-examination she has admitted that one month prior to occurrence she had gone to her ‘naiher’ and she did not see the occurrence about which she was told by informant and Madho Devi (PW 5).
6. Surendra Choudhary (PW 7) has said that on 13.13.1996 he was posted as officer-in-charge of Barari Police Station and on that day he received information of occurrence on telephone and he then made station diary entry and along with ASI Bishambhar Chaudhary and armed forces proceeded for the place of occurrence where he reached and verified the occurrence and recorded the fardbeyan of informant. He has proved the fardbeyan, which is marked Ext. 1 and he has also proved formal FIR, marked Ext. 2. He has further said that he made search for the dead body of mother of informant but he could not get it.
7. The informant in her fardbeyan has stated that her brother Shankar Mandal was present in the house at the time of occurrence but in her evidence she has stated that her brother is lunatic. Madho Devi (PW 5), sister of Shanker Mandal and Purni Devi (PW 7), wife of Shanker Mandal have said that Shanker Mandal is insane but Surendra Choudhary (PW 7), I.O., in para 7 of his evidence has said that during investigation he had recorded the statement of Shanker Mandal. The prosecution has not examined Shanker Mandal. In para 11 I.O. has further stated that after recording station diary entry he started for place of occurrence where he reached at 5.20 p.m. About station diary entry he has said” that it is available at the police station and he remembers the contents of that entry about which he has said that he recorded in that entry that appellant Ratna Pahalwan along with his other companions took the victim across the river but he did not record the names of companions of Ratna Mandal. In para 12 he has said that after reaching the place of occurrence on 13.12.1996 at 5.20 p.m. he made search for the victim and appellants and recorded fardbeyan. Fardbeyan (Ext. 1) shows that it was recorded on 13.12.1996 at 8 p.m. in the village of informant. The informant in para 3 of her evidence has said that after occurrence she went to the police station where her fardbeyan was recorded and as stated earlier, in para 19 she has said that her statement was recorded by police on the next day of occurrence. This is against the case of prosecution. In the fardbeyan informant has said that after occurrence she informed the police by telephone and thereafter police immediately reached to the place of occurrence. Surendra Choudhary (PW 7), I.O., as stated above, has said that he on receipt of information by telephone made station diary entry and thereafter, he went to the place of occurrence. His further evidence is that names of persons committing offence were also told to him by telephonic message which was by informant herself but he recorded the name of only appellant Ratna Mandal and did not record the names of his other companions in the station diary entry. Since telephonic message was by informant herself which was entered in the station diary entry and thereafter police proceeded for place of occurrence it can very well be presumed that after receiving the information of occurrence from informant on telephone police took up the investigation and thereafter it recorded the statement of informant which is hit by Section 162, Cr PC. The evidence of Madho Devi (PW 5), another daughter of victim that after taking the victim on the other side of river by boat she was killed by the appellants in mud is a new case which does not find place either in the FIR or in the evidence of informant and besides this, in para 27 of her cross-examination Madho Devi (PW 5) has admitted that on the day of occurrence she followed her mother till the bank of river and stayed there and she has specifically stated that she had not gone on the other side of the river and in para 28 she has said that on the next day of the occurrence she went to the other side of river in search of her mother.
8. Bichho Mandal (DW 1) and Rudal Mandal (DW 2) have said that appellant Chhedi Mandalon the day of occurrence had gone in Diara by boat and he returned from there in the evening. Bichho Mandal has further said that on that day appellant Chhedi Mandal had gone in Diara and had returned on his (Bichho Mandal’s) boat and they reached the village at about 7-8 p.m. when they heard ‘hulla’ that mother of informant was missing.
9. The evidence of informant and her sister Madho Devi (PW 5) or the point of occurrence is not consistent. They have simply stated that appellants along with Satna Mandal forcibly took away their mother across the river on a boat. About the motive, case of informant is that appellants were calling her mother a witch because prior to occurrence minor daughter of Satna Mandal had died and since then Satna Mandal was saying that mother of informant was a witch and was responsible for death of his minor daughter. The case of prosecution is that at the time of abduction intention of appellants was to commit the murder of informant. There is no independent witness in this case either on the point of occurrence or on the point that appellants were calling mother of informant a witch. About the time of lodging FIR informant has contradicted her statement that on the next day of occurrence her statement was recorded. Her earlier version which was sent to police by telephone and which was recorded in the station diary entry has not been brought on record and Shanker Mandal who was present at the time of occurrence. in his house and whose statement was recorded during the investigation has not been produced by the prosecution.
10. Considering all these facts I find that prosecution has not been able to prove its case against the appellants beyond all reasonable doubts and judgment and order of Court below convicting and sentencing the appellants cannot be upheld.
11. In the result, this appeal is allowed and judgment and order of Court below is hereby set aside and appellants are acquitted. As the appellants are in jail custody, they are ordered to be released forthwith from jail custody if not required in any other case.
Mridula Mishra, J.
12. I agree.