Criminal Appeal (D.B.) No. 276 of 2004
With
Criminal Appeal (D.B.) No. 287 of 2004
****
Against the judgment and order, dated 26.02.2004, passed by Sri Deepak
Kumar Sinha, Additional Sessions Judge, Fast Track Court, V, Bhagalpur, in
Session’s Trial No. 500 of 1996/Trial No. 159 of 2002
****
Md. Sajjad, S/O Md. Quddus, resident of village Shahkund, P.S. Shahkund,
district Bhagalpur .. Appellant
(in Cr. Appeal (D.B.) No.276/04)
1. Md. Nizam, S/O late Md. Amjad
2. Md. Jamid (Jamil), S/O late Sk. Sammo Tailor
Both residents of village Janipur, P.S. Shahkund, district Bhagalpur
.. Appellants
(in Cr. Appeal (D.B.) No.287/04)
Versus
The State of Bihar .. Respondent
(in both the Appeals)
****
For the appellant .. Mr. Md. Najmul Hoda, Adv.
(in Cr. Appeal (D.B.) No.276/04)
For the appellants .. M/S Krishna Mohan & Praveen
(in Cr. Appeal (D.B.) No.287/04) Kumar, Advs.
****
PRESENT
THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA
THE HON'BLE MR. JUSTICE GOPAL PRASAD
2
Shyam Kishore Sharma &
Gopal Prasad, JJ. Both these two appeals are being heard
together and disposed off by this common judgment in view of the fact
that both the appeals arise out of the common judgment and order,
dated 26.02.2004, passed in Session’s Trial No. 500 of 1996/Trial No.
159 of 2002 by the Additional Sessions Judge, Fast Track Court, V,
Bhagalpur. The appellants of both the appeals have been convicted
under Sections 376, 302, 201 and 34 of the Penal Code and have been
sentenced to undergo rigorous imprisonment for life.
2. The prosecution case, as alleged in the fardbeyan of the
informant Fulwato Devi (not examined) that on 02.07.1994 at about
06.30 p.m. her daughter, Nanki Kumari, went to purchase curd from
Shahkund Bazar. The daughter did not return by 07.30 p.m. then the
informant along with her nephew, Sanichar Mandal (P.W. 1) went to
make out a search of her daughter and reached the Shahkund Bazar. In
Shahkund Bazar one shop keeper, Umesh Prasad Sah (P.W. 3) met and
it was learnt that the girl has returned after purchasing curd worth fifty
paise. Thereafter, the informant returned back making out a search of
her daughter. The further case of the prosecution that due to raining
they remained there for half an hour and after the rain was over they
again went out for search of victim along with Sahdeo Mandal (P.W.
6), Narsingh Mandal (P.W. 7) and Prakash Mandal (not examined) after
search they could not find out the victim and then the informant
returned back. In the morning at about 05.00 a.m. one Mahesh Mandal
(P.W. 2 while returning after meeting the call of nature disclosed that at
3
Kanchandar Bahiyar a dead body has been found. On getting the
information the informant and several people of the village reached
there and then saw the dead body of the daughter of the informant and
they found a black mark on the neck and blood found at the private part
and blood stains found on the pant of the victim. The informant
claimed that her daughter, Nanki Kumari, has been done to death after
rape by some one while she was returning after purchase of curd. The
further case that she doubted that some persons used to have ganja near
Shitla Asthan may have done the offence. On the fardbeyan of the
informant the first information report was lodged on 13.07.1994 for
offence under Sections 376, 302, 201 and 34 of the Penal Code. After
investigation the charge sheet was submitted and after taking
cognizance the case committed to the Court of sessions and, thereafter,
the charge was framed under Sections 376/34, 302/34 and 201/34 of the
Penal Code against the appellants.
3. After framing of the charge the trial proceeded and the
prosecution adduced nine witnesses to support the prosecution case.
P.W. 1 is Sanichar Mandal, P.W. 2 is Mahesh Mandal, P.W. 3 is
Umesh Prasad Sah, P.W. 4 is Bechan Mandal, P.W. 5 is Brahmdeo
Mandal, P.W. 6 is Sahdeo Mandal, P.W. 7 is Narsingh Mandal, P.W. 8
is Shambhu Prasad Singh and P.W. 9 is Dr. Narendra Narayan Bhagat,
who has done autopsy on the person of the deceased, Nanki Kumari.
The documentary evidences adduced are Exhibit 1, signature of the
witnesses on the inquest report, Exhibit 2 is the signature of the
witnesses on the seizure list, Exhibit 1/1 is the signature of the
4
witnesses on the inquest report, Exhibit 2/1 is the signature of the
witnesses on the seizure list, Exhibit 2/2 is the signature of the witness,
Shambhu Prasad Singh, on the seizure list, Exhibit 3 is the post mortem
report, Exhibit ‘X’ photo copy of the pathological report.
4. The learned counsel for the appellants, however,
contends that the prosecution has not been able to prove the charges
beyond reasonable doubts and the order of conviction of the learned
lower Court is not on the basis of evidence or material on legal
evidence. However, the question for consideration is that whether the
prosecution has been able to prove charges beyond reasonable doubts.
5. The prosecution case is that the victim was sent for
purchase of curd, but, she did not return and then the informant
proceeded to enquire about her where about, but, could not find her out
and on the next morning one Mahesh Mandal, P.W. 2, disclosed about
a dead body in Kanchandar Bahiyar an then the informant and other
villagers went there and found the dead body of the deceased land the
first information report is against unknown. P.W. 1 is Sanichar
Mandal. However, he stated that he along with his aunt, Fulwato Devi,
went to make out a search as Nanki Kumari was sent for bringing curd
in the evening on the date of occurrence and they went to enquire and
then Umesh Prasad Sah (P.W. 3) disclosed that a girl has come to
purchase curd and has returned after taking the curd. Thereafter, then
returned in search of the deceased, Nanki Kumari, but, they could not
trace her out. He has further stated that on the next morning Mahesh
Mandal (P.W. 2) while returning after meeting the call of nature
5
disclosed about the dead body and then went there and saw the dead
body of Nanki Kumari and blood found on the uterus. He has further
stated that the police came and found the earthen pot (kapti) used for
bringing curd near dead body of the Girls High School near Shitla
Asthan. He has further stated that near Shitla Asthan there is a tree of
palase under which Sajjad, Jamid (Jamil) and Nizam used to sit for
taking ganja in every evening.
6. P.W. 2 is Mahesh Mandal, however, supported the
prosecution case that Nanki Kumari had been sent to Shahkund Bazar
to bring curd, but, she did not return and he had gone to make out a
search, but on the next day at 05.30 a.m. while he was returning found
a dead body having black mark on neck and blood stained on the pant
of the said dead body. He has further stated that on 02.07.1994 while
he was returning from Shahkund Bazar then he saw accused, Sajjad,
Md, Jamid (Jamil) and Nizam sitting near Shitla Asthan and taking
ganja. He has further stated in her cross examination that about ten
yards west of the Shitla Asthan accused persons were taking ganja.
7. P.W. 3 has supported the prosecution case that on the
date of occurrence in the evening a girl had come to his shop and
disclosed her residence at Shivampur was aged ten years old and she
purchased curd worth eight anas and the curd was given in earthen pot
(kapti) and on the next day he learnt that she has been done to death by
strangulating her neck after raping her and the dead body was lying
near Kanya Madhya Vidyalaya. He went there and identified the dead
6
body of the girl and it was the same girl, who had purchased curd on
the last evening of the date of occurrence from his shop.
8. P.W. 4 is Bechan Mandal. He has also supported the
prosecution case that he saw the dead body of Nanki Kumari and has
also put his signature on the inquest report though he has been declared
hostile as he has not supported the prosecution case by stating that he
did not make any statement before the police, however, has proved that
he was the dead body of the deceased on the date of occurrence.
9. P.W. 5, Brahmdeo Mandal, has also supported the
prosecution about his signature on the inquest report and about the
lying of the dead body in Kanchandar Bahiyar, but, this witness has
also been declared hostile by the prosecution.
10. P.W. 6, Sahdeo Mandal, stated that he had no talk with
Fulwato Devi and, hence, not supported the prosecution case about the
fact that he went along with the informant for search of her daughter
and this witness has been declared hostile by the prosecution though
has supported that on the next morning the dead body was found.
11. P.W. 7, Narsingh Mandal, however, did not supported
the prosecution case at all and has stated that he did not stated anything
about the occurrence and, hence, declared hostile by the prosecution.
12. P.W. 8, Shambhu Prasad Singh, has proved his
signature on the seizure list and the seizure is with regrd to the blood
stained clothes and earthen desmair with curd and the earthen pot
(kapti).
7
13. P.W. 9 is the doctor, who has found the injury on the
person of the deceased and found the death by strangulation and a
laceration in the vagina and mark of violence on vagina and neck and
the death is due to asphyxia due to pressure around the neck. Further,
considering the evidence though it has been established that the dead
body of the deceased was found at the place of occurrence, the curd and
the earthen pot were also found near the dead body and there is
evidence that after purchase of curd she proceeded from the shop and
the occurrence took place while returning at Shitla Asthan.
14. So far the implication of the accused persons is
concerned, there is only evidence of P.W. 1 that the accused persons
used to take ganja near Shitla Asthan under a palase trea and further
P.W. 2 has stated that on the date of occurrence the appellants were
taking ganja near Shitla Asthan in the evening of 02.07.1992, however,
the time specifically has not been mentioned. However, their evidence
does not support to establish the charge for rape. On the basis of these
evidence it can not be said that appellants in all probability committed
the offence. However, there is no evidence that the accused persons
were seen along with the deceased. There is only evidence that the
accused persons were taking ganja under a tree near Shitla Asthan at
about the place of occurrence, but, even exact time has not been
mentioned and the accused persons used to take ganja on every
evening, it does not establish the guilt either for the rape or for murder.
One may infer on fact establish that since they were taking ganja in the
evening then they may have done the occurrence.
8
15. It is true that it is matter of great regret that a cold
blooded murder to go unpunished, however, on the facts or the
evidence established one can only say that the accused may have
murdered, but, there is a great difference between may be proved and
must be proved and this distance must be traveled by legal, credible,
cogent, reliable and unimpeachable evidence and unless the prosecution
proved the case by cogent, reliable and unimpeachable evidence a
conviction can not base on mere conjuncture and surmises or on
suspicion. A suspicion, however, grave may be it can not take the
place of proof and whatever evidence available on record it can not go
beyond suspicion much less the proof and on these facts it may not be
inferred that the prosecution has proved it’s case beyond reasonable
doubts.
16. However, the learned trial Court while convicting the
accused persons taken into consideration the fact that the accused
persons have confessed before the investigating officer, there is no
evidence to this effect. The investigating officer has not been
examined and even the informant has also not been examined for the
reasons known the prosecution. However, whatever stated in the
confessional statement before the police it is only in the case diary
itself and has not brought any evidence, hence, are not legal evidence to
be relied upon and, hence, the learned trial Court misdirected itself in
taking into consideration those fact which were in the case diary which
are not legal evidence to consider and which are the confession before
the police officer. A confession before the police officer is hit by
9
Sections 24, 25 and 26 of the Evidence Act and more over that has not
been brought on evidence in Court and, hence, we are of the considered
opinion that the prosecution has not been able to prove the charges
beyond reasonable doubts on the basis of a legal evidence adduced in
the case and the judgment and order passed by the learned lower Court
is not sustainable in the eye of law and, hence, the judgment and order
of conviction and sentence of the learned lower Court is hereby set
aside. Appellants are ordered to be acquitted of the charges as
prosecution has not been able to prove the charges beyond reasonable
doubts.
17. Both the Criminal Appeals are allowed. Appellants,
Nizam and Jamid (Jamil) (in Cr. Appeal (D.B.) No. 287 of 2004) are in
custody are hereby ordered to be set at liberty henceforth, if not
required in any other case. All the appellants are discharged from the
liabilities of their bail bonds.
(Shyam Kishore Sharma, J.)
( Gopal Prasad, J. )
The Patna High Court,
The 19th day of April, 2010,
N.A.F.R./S.A.