Patna High Court
Baleshwar Yadav vs State Of Bihar on 3 August, 2012
Author: Shyam Kishore Sharma
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
*****
Criminal Appeal (DB) No.382 of 2005
Against the judgment of conviction and order
of sentence dated 20th May, 2005 passed by
Shri A.K. Sriwastawa, the learned Special
Judge, S.C.S.T. (P.A.) Act, Gaya in Trial No.
20 of 2003.
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Baleshwar Yadav, Son of Somar Yadav, Resident of Village - Sakarchatti, P.S.-
Wazirganj (Tankuppa), District - Gaya.
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
with
Criminal Appeal (DB) No. 435 of 2005
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Talkeshwar Yadav, Son of Late Mahadeo Yadav, Resident of Village-Burhganti via
Lakhimpur, P.O. & P.S.-Fatehpur (Mohanpur), District-Gaya.
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
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Appearance :
(In both the appeals)
For the Appellant : Mr. Mahendra Thakur, Advocate
Mr. Manoj Kumar Sinha, Advocate
Mr. Ajay Kumar Sinha, Advocate
For the State : Mr. Ashwini Kumar Sinha, APP.
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CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
and
HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA)
Date: 03-08-2012
Criminal Appeal (DB) No. 382 of 2005, filed on
behalf of Baleshwar Yadav and Criminal Appeal (DB) No.435 of
2005, filed on behalf of Talkeshwar Yadav have been taken up
together because both the appeals have arisen out of judgment and
order of sentence dated 20th of May, 2005 passed by the learned
Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 2
Special Judge, S.C.S.T. (P.A.) Act, Gaya in connection with Trial
No. 20 of 2003, whereby the appellants have been convicted under
Section 302/149 of the Indian Penal Code and for that they have
been sentenced to undergo imprisonment for life. For their
conviction under Section 27 of the Arms Act, no separate sentence
has been passed. Similarly, for conviction under Section 3 (2) (V)
of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, no separate sentence was given. The appellants
were held not guilty and acquitted for the offence under Section
148/380 of the Indian Penal Code.
2. Dewan Paswan P.W. 7, the informant, gave his
fardbeyan (Ext.5) which was recorded by Sub-Inspector of Police
Vijay Singh on 02.11.2002, at 01.00 P.M., Village Kulginzoi
under Fatehpur Police Station of District Gaya. The informant
alleged that in the preceding night at 08.30 p.m., while the
informant after having dinner was sitting with his family members
then suddenly he heard whispers of Dhanpat Yadav, Kuldeo
Yadav, Upendra Yadav, Ravindra Yadav, Shambhu Yadav,
Sheonandan Yadav, Talkeshwar Yadav, Tooklal Yadav, Jagdish
Yadav, Baleshwar Yadav and 20 unknown persons coming with
various weapons. The accused persons abused the informant and
challenged him to venture. The informant identified the accused
Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 3
persons in the flash of torch light from his room where he has
climbed after arrival of the accused persons. Dhanpat Yadav
climbed on the roof of one Kuldip Paswan through a palm tree and
subsequently he came to the roof of the informant. The informant
jumped down towards the western side of his house and concealed
himself in a paddy field. Dhanpat Yadav with the help of stairs
came to the Aangan and opened the main door through which
other criminals came and started indiscriminately assaulting the
informant's family members. The informant heard sound of firing
and crying of his family members. Half an hour, thereafter, the
voice silenced and the informant kept concealing himself
throughout the night. In the morning, this informant went
Kariyadpur village and narrated about the occurrence to the local
people. While the informant waiting for Maxi for going to the
police station then in the meantime the officer-in-charge came and
he told him about the occurrence. The officer-in-charge came to
the house of the informant and saw blood inside the Aangan but
not found any family members of the informant. The neighbours
told that the informant's mother, father, wife and Bhabhi have
been killed by the criminals due to use of firearm and sharp
cutting weapons. The corpses were concealed. A contract for
construction of a community hall (Samudayik Bhawan) was the
Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 4
bone of contention between the two parties.
3. The fardbeyan was witnessed by P.W.1 Nagina
Prasad (Ext.2). Signature of Dewan Paswan on fardbeyan is
(Ext.4). Formal FIR (not formally brought on the record) was
registered vide Fatehpur P.S. Case No. 116 of 2002, dated
02.11.2002under Sections 147, 148, 149, 302, 201 and 380 of the Indian Penal Code and Section 27 of the Arms Act and Section 3/4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as the 'S.C./S.T. Act').
4. In course of investigation, dead bodies of Batasi Devi and Kaushalya Devi were found in a well Lakhan Prasad which was situated in Lachhipur Badhar village on 02.11.2002. On the next date i.e. on 03.11.2002, the dead bodies of Prayag Paswan and Savita Devi were also taken out from the same well. Inquest report of dead body of Batasi Devi (Ext.6), inquest report of Kaushalya Devi (Ext.6/1), inquest report of Prayag Paswan (Ext.7), inquest report of Savita Devi (Ext.7/1), post-mortem examination reports (Ext.3, 3/A, 3/B and 3/C) were obtained. Statement of the witnesses were recorded, place of occurrence was investigated. After completion of the investigation, charge sheet was submitted. The case being triable by the court of Sessions was committed to the court of Sessions. Charge under Sections Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 5 302/149, 148, 201 and 380 of the Indian Penal Code and Section 27 of the Arms Act and Section 3(2) (V) of the S.C./S.T. Act was explained to the accused persons. When they pleaded their innocence, the trial proceeded.
5. The defence of the appellants was of false implication and wrong identification. It has been claimed by the appellants that their implication is only because they were deemed to be inimical with the informant and his witnesses. Their further defence was that the witnesses were present at the time of occurrence, at the place of occurrence were not examined. Not even one independent witness has been examined, though occurrence is of the midst of the village.
6. In order to prove its case, the prosecution examined P.W. 1 Nagina Prasad, P.W. 2 Kanhaya Paswan, P.W. 3 Jagdish Paswan, P.W. 4 Dahiya Devi, P.W. 5 Dr. Arbind Pd., P.W. 6 Arjun Paswan and P.W. 7 Dewan Paswan. P.W. 7 is the informant of the case; P.W. 6 is brother of the informant. P.Ws. 2, 3 and 4 have not supported any part of the allegation and they were declared hostile on the prayer of prosecution. P.W. 1 is not a witness of the occurrence rather he has come after the occurrence.
7. P.W. 5 Dr. Arbind Prasad was posted as Assistant Professor Forensic Medicine, Magadh Medical College, Gaya on Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 6 03.11.2002. On the same day at 11.15 A.M., he conducted post- mortem examination of the dead body of Smt. Kaushalya Devi, wife of the informant Dewan Paswan P.W. 7 and has found the following ante mortem injuries:
(I). Incised wound of 4½" x 1/2" x bone deep over the right side of the forehead extends from lateral margin of eyebrow upwards, commuted fracture of bone under was found. Intervening brain and meninges were lacerated. Intercronial haemorrhage was found over apical region.
(II) . Incised wound of 3/4" x 1/4" x bone deep at left zygomatic region of scalp.
(III). Incised wound of 3/4" x 1/4" x 1/4" at right margin of upper lip.
(IV). Incised wound of 1¼" x 1/4" x bone deep at right side of chin with fracture & dislocation of left sianus of mandible at middle on left side.
All the injuries were caused by sharp cutting weapon and cause of death was due to shock and haemorrhage. The death was within 24 - 36 hours.
8. On the same day at about 11.30 A.M., P.W. 5 has also conducted post-mortem examination on the dead body of Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 7 Batasi Devi, wife of Prayag Paswan and found the following ante mortem injuries:
(I). Incised wound of 1¼" x 1/4" x bone deep at right side of chins.
(II). Incised wound of 1½" x 1/4" x bone deep over forehead near root of hair in middle.
(III). Lacerated wound 1"x3/4"x bone deep at upper part of right leg in front. Fracture and dislocation of tibia & fibula present.
(IV). Lacerated wound 1"x 1/2"x bone deep at right leg lower part in front with fracture and dislocation of lower part of tibia & fibula.
(V). On dissection of chest sternous was found fractured in the middle along with fracture & dislocation of 5th to 7th rib at right cortochondral junction and 4th to 6th at left cortochondral junction.
The Injury Nos. 1 & 2 was caused by sharp cutting weapon while Injury Nos. 3, 4 & 5 was by hard and blunt substances. The cause of death was due to shock and haemorrhage.
9. Again on 04.11.2002 at about 11.00 A.M., P.W. 5 has conducted post-mortem examination on the dead body of Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 8 Savita Devi, wife of Karu Paswan and found the following ante mortem injuries:
(I). Incised wound 4"x 1/2"x oral cavity deep at left side of face extending from lateral angle of mouth involving margin of lower lip. Fracture and dislocation of left naxilla and rams of left mandible present. Dislocation of upper premolars present. Oral cavity was stained with dark blood.
(II) . Abrasion 3"x2" at right elbow.
Injury No. (I) was by sharp cutting weapon and Injury No. (II) by hard and blunt substance and cause death is shock and haemorrhage by injuries to face. The death was within 48 - 72 hours.
10. On the same date this witness also conducted post-mortem examination on the dead body of Prayag Paswan, Son of Late Shyam Paswan and found the following injuries on his person:
(I). Incised wound of 3"x1/4"x bone deep present at middle of left side of forehead oblique. Fracture and dislocation of underlying bone was found. Brain was liquefied and was of dark pink colour.
(II). Incised wound 3"x1/4"x bone deep at Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 9 lateral side of left eye oblique.
All injuries were caused by sharp cutting weapon and death was due to shock and haemorrhage and head injuries. Time elapsed since death was between 42 - 72 hours.
11. The evidence of the doctor has conclusively proved that the death of Batasi Devi, Prayag Paswan, Kaushalya Devi and Savita Devi was almost at the time mentioned in the fardbeyan of the informant i.e. at about the night of 01.11.2002. There is slight variation between time and it varies for 7 - 8 hours from the time mentioned by the doctor but such variations of time are not based upon the sound principle.
12. If minor variations are there, then it cannot be taken into account and death as alleged, time is established. Once factum of death is established, then the evidence has to be scrutinized and it has to be seen that the prosecution was able to prove the evidence that the accused were involved in commission of crime for which they were charged.
13. P.W. 1 knew about the occurrence at 06.00 A.M. in the next morning and thereafter he went there and saw the dead bodies. He saw 4 - 5 children inside the house. The police has come and started investigation. This witness is not a witness of the occurrence at all. He is a hearsay witness but his evidence is Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 10 relevant to the extent that he has stated about the presence of 4 - 5 children inside the house. Next witness which required to be discussed is P.W. 7, the informant. Because, it is he, who has set law into motion. According to his deposition, at about 08.30 P.M. on 01.11.2002, he was upon his roof along with his mother Batasi Devi, father Prayag Paswan, wife Kaushalya Devi and Bhabhi Savita Devi and brother Arjun Paswan P.W. 6. At that very time, the informant heard the sound of Dhanpat Yadav coming from the eastern side of his house. Dhanpat Yadav was naming the informant by caste. The informant saw in the flash of torch, that in his Aangan these appellants and Dhanpat Yadav, Kuldeo Yadav, Upendra Yadav, Ravindra Yadav, Shambhu Yadav, Sheonandan Yadav, Tooklal Yadav, Jagdish Yadav and 20 - 25 unknown were there. Dhanpat Yadav armed with country made rifle, Kuldeo Yadav armed with Pasuli, Upendra Yadav armed with gun, Ravindra Yadav armed with gun, Shambhu Yadav and Sheonandan Yadav armed with pistol, Talkeshwar Yadav armed with sword, Baleshwar Yadav armed with gun, Sukhlal Yadav and Jagdish Yadav armed with iron article and Nandlal Yadav armed with Bhujali and 20 other unknown persons who were also with arms. The informant's house was encircled by the marauders. House of Kuldip Paswan was situated to the east of the house of Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 11 the informant. By the side of that house a Palm Tree was there which was utilized by the criminals for going inside the house of the informant. The informant jumped down from his roof and concealed himself behind the bamboo trees (Bansvari) and from there he heard the agony of his family members. In the next morning, at 04.00 A.M., he proceeded up to Kariyadpur village and told about the occurrence to Dr. Mehdi Hassan. In the meanwhile, the officer-in-charge came and the informant accompanied him to his house. The house was opened and blood was splintered and dragging mark of the dead body was there but the dead bodies were not present. On enquiry by the informant and the officer-in-charge, the villagers told that the accused persons have killed the informant's family members and taken away the dead bodies after killing them. The mark of blood led the informant to proceed up to 3 kms. where a well was situated and plenty of blood was found there. There he found some pieces of broken bangles scattered. Thereafter with the help of rope and Jhaggar a sack of plastic was brought out from the well in which only upper part namely the head of the dead body of the informant's father was found. Thereafter, dead bodies of the wife and mother of the informant were also brought out from the well. On the next day, dead bodies of other family members' father and Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 12 Bhabhi of the informant were also brought out. The informant has stated that after receiving of donation amount he has again married with another lady. The informant was initially working in Dalit Sena since 1992 as a leader. The informant has also denied regarding involvement in any Indira Awas Yojna. Similarly, the evidence of informant's brother Arjun Paswan and except the dramatical variation, there is no substantial difference given by the informant and his brother who has also deposed that in the night of the occurrence i.e. on 01.11.2002 the marauders have attacked upon the house and his family members and the dead bodies were taken out subsequently on 02.11.2002 and 03.11.2002.
14. Learned Counsel for the appellants has submitted that the prosecution case is full of absurdities. There is no consistency between the eye witnesses' account and the objective finding of the doctor. Attention has been drawn towards the fact that initial version of the fardbeyan was that the informant was taking rest with his family members after having dinner. It has been submitted that altogether different versions were given in evidence. When the informant has stated that he was upon the roof then the criminals have arrived. It has also been submitted that the informant's version is contradicting from the doctor's evidence who has given different statement with regard to stomach and Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 13 intestine of the dead bodies. The post-mortem report mentions that Kaushalya Devi was having semi digested food whereas other dead bodies had empty stomach and intestine. It has been submitted that on this basis that the evidence was not correct in saying that after taking dinner all were taking rest. This shows that the informant was not a witness of the occurrence rather he has established himself as a witness. Another contradiction which has been pointed out is with regard to dead bodies from where taken out was a well which was situated at a distance of 3 kms. from the place of initial assault. It has been submitted that the informant was a witness of the recovery of the dead bodies as he has stated initially that the head of his father was taken out and on the next day the dead bodies of other family members were taken out. Pointing the inquest report, it has been submitted that the deposition of the informant is totally devoid of facts because the inquest report does not confirm this version of the informant regarding recovery of the trunks. Four naked heads were taken out from the well and it was thoroughly incorrect that initially only head portion of his father was taken out. It has been submitted that this vital contradiction has created a doubt and entire version of the prosecution and non-examination of the investigating officer has left a big hole to be filled up. His evidence could have Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 14 clarified as to why the informant was saying about the recovery of separate head of his father that was not mentioned in the inquest report. Secondly, the investigating officer could have to some extent clarified as to why the eye witnesses' account and doctor's evidence regarding time of death is varied between 7 - 8 hours.
15. The prosecution version right from the injury is that the accused persons were identified in the flash light of the torch which the informant was having. It is not the case that the accused persons were identified in their own light and they may have carried it away. It is not the case that the torch was snatched by the criminals and no effort has been made to snatch the torch. Their evidence is only to the extent that the torch was in the possession of the informant and it has remained with him. The occurrence is of the night. There is no narration about any other source of light. Meaning thereby, that identification was only through the torch light. The link between the crime and identification should have been established beyond shadow of all reasonable doubts and in this case it has not been challenged. Only the identification of the accused is under challenge. The definite case of the prosecution is that identification was in the torch light. Unfortunately, in the case in which murder of four hapless persons was committed, the investigating officer was not examined. None Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 15 examination of the I.O. has caused great prejudiced not only with regard to point out the identification of the accused and even inconsistency of the statement of the witnesses under Section 161 of the Code of Criminal Procedure as well as in their statement in the court rather with regard to seizure and production of the torch. If the crime is proved then the link is also to be proved beyond shadow of all reasonable doubts. Non-production of the torch in the case is itself a doubt which makes the implication of the accused to be doubtful. Not only that the objective finding of the doctor regarding the fact that the deceased were empty stomach and intestine is a contradiction with initial version of the occurrence which mentions that all the persons after having dinner were taking rest in the night. This version itself creates a doubt.
16. The prosecution evidence once recorded has to be explained to the accused under Section 313 of the Code of Criminal Procedure. This Section is mandatory in all aspect. The accused is entitled to know the circumstances which have been gathered during investigation. The circumstances have to be explained so that the accused could be held in crime. The circumstances appearing in the case is with regard to identification in the torch light. In the present case, the entire evidence gathered has been explained in one sentence. There is no mention at all as Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 16 to how the accused persons were identified. If the link between the offence and identification is proved then the accused persons could have been identified by the witnesses. Statements of Baleshwar Yadav and Talkeshwar Yadav under Section 313 of the Code of Criminal Procedure do not contain any suggestion to them that they were identified by the witnesses in the torch light. Violation of this mandatory provision has led the prosecution totally in mess. Though a number of decisions have been given with regard to Section 313 of the Cr.P.C. but still reliance has been placed in the case of Sharad Birdhichand Sarda, V. State of Maharashtra reported in AIR 1984 Supreme Court 1622 wherein the court has laid down that the circumstances were not put to accused then it cannot be used against them. It is relevant to quote paragraph no. 142, 144 and 198 of the aforesaid judgment which reads as follows:
142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 17 because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh V. State of Madhya Bharat AIR 1953 SC 468 this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Babu Chaugule V. State of Maharashtra, (1976) 1 SCC 438: (AIR 1976 SC 557) this Court held thus:
"The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him."
144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 18 Criminal Procedure Code have to be completely excluded from consideration.
198. My learned brother Fazal Ali, J. has observed as follows at pages 1626 and 1653 of his judgment:
Page-1626 "On the other hand the plea of the defence was that while there was a strong possibility of Manju having been ill-treated and uncared for by her husband and her in-laws, being a highly sensitive and impressionate woman, she committed suicide out of sheer depression and frustration arising from an emotional upsurge."
Page-1653 "On the other hand this circumstance may have prompted her to commit suicide, for if a child was born to her, in view of her ill-treatment by her husband and her in-laws the child may not get proper upbringing."
I do not recollect any admission by Mr. Ram Jethmalani, learned Counsel for the appellant in the course of his arguments about any ill-treatment to Manju on the part of the appellant or his parents. The evidence of P.W. 3 is that during Manju's second visit to Beed after her Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 19 marriage with the appellant she found Manju not quite happy and very much afraid of the appellant. The evidence of P.W. 5 is that during Manju's second visit to Beed, Manju complained to her about the appellant returning home late in the night and avoiding to have a talk with her and that Manju told her that she was afraid of the appellant and apprehended danger to her life at his hands. The further evidence of the P.W.5 is that during her third visit to Beed she inferred from Manju's face a spell of fear. The evidence of P.W.6 is that during Manju's second visit to Beed, Manju told her that the appellant used to leave the house early in the morning and return late at night under the pretext of work in his factory and that he was even reluctant to talk with her. P.W.6 has stated that during Manju's visit to Beed she was extremely uneasy, disturbed and under a spell of fear, that Manju told her that the appellant did not relish even her question as to why he was not prepared to have a simple talk with her, and that during her third visit to Beed, Manju expressed her unwillingness to go to Pune when Birdhichand went to Beed on 2-6-1982 for taking her to Pune. To the same effect is the evidence of P.Ws. 2 and 20 about how Manju looked in spirit and what Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 20 she stated during her last two visits. My learned brother Fazal Ali, J. has rightly rejected the oral evidence of P.Ws. 2, 3, 5, 6 and 20. He has extracted the relevant portions of the letters Exts. 30, 32 and 33 in his judgment and has observed at Page 1632 that one thing which may be conspicuously noticed in Ext. 30 is that Manju was prepared to take all the blame on herself rather than incriminating her husband or his parents; at Page 1633 that it was conceded by the learned Additional Solicitor General that the relevant portion of Ext. 32 does not refer to any ill-treatment of Manju by the appellant or his parents; and at page 1633 that it can be easily inferred from Ext. 33 that Manju did not have any serious complaint against the appellant except that she was not getting proper attention which she deserved from him. These three letters do not establish that Manju made any complaint of any ill-treatment by the appellant or his parents. In my view, these three letters and the aforesaid oral evidence of P.Ws. 2, 3, 5, 6 and 20 are inadmissible in evidence under S. 32 (1) of the Evidence Act for reasons to be given elsewhere in my judgment. Thus there is no acceptable evidence on record to show that either the appellant or his Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 21 parents ill-treated Manju. The High Court also has not found any such ill-treatment in its judgment. On the other hand, what has been found by the High Court in para 104 of its judgment is that the appellant treated Manju contemptuously. Even while setting out the case of the prosecution the High Court has stated in para 7 of its judgment that it is alleged that the appellant started giving contemptuous treatment to Manju and in para 20 that the appellant has denied in his statement recorded under S. 313, Cr.P.C. that Manju was being treated contemptuously. No question has been put to the appellant in the course of his examination under S. 313, Cr.P.C. about any ill- treatment of Manju by the appellant or his parents. My learned brother Fazal Ali, J. has referred on page 1654 of his judgment to this Court's decisions in Hate Singh Bhagat Singh v. State of Madhya Bharat, AIR 1953 SC 468; Shamu Babu Chaugale v. State of Maharashtra, (1976) 1 SCC 438:
(AIR 1976 SC 557) and Harijan Megha Jesha v. State of Gujarat, AIR 1979 SC 1566 and has observed at page 1654 of his judgment that circumstances not put to the appellant in his examination under Section 313, Cr.P.C. have to be completely excluded from consideration in view of those Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 22 decisions. Therefore, since no question has been put to the appellant in this regard in the course of his examination under Sec. 313, Cr.P.C., even if there is any evidence about any ill-treatment of Manju by the appellant or his parents it has to be completely excluded from consideration. I felt it necessary to say this in my judgment since I think that in fairness to the appellant it has to be done.
17. In the present case, the circumstances linking the accused with the offence were not put so it cannot be taken for the purpose of holding them guilty.
18. In a criminal trial, the prosecution is required to establish its case beyond shadow of all reasonable doubts. The definite case of the prosecution was that when P.W. 1 has gone to the house in the next morning he has found some inmates of the house it has come in the evidence that those inmates were children but the age of that children given at the time of deposition which has taken not less than two years from the time of occurrence. The eldest was of ten years that at least he would have been eight years. A boy/girl of eight years can very well state about the role of his villagers. Similarly, one boy who was aged six years at the time of occurrence and he should also have been produced. None examination of the investigating officer has not clarified as to Patna High Court CR. APP (DB) No.382 of 2005 dt.03-08-2012 23 whether they were projected by the police officer or not for giving their statement.
19. This vital fact, taken into account led to only conclusion that the prosecution has not been able to prove the case beyond shadow of all reasonable doubts.
20. In the result, the sentences awarded to the convicts are set aside. The appeals are allowed.
21. The appellants are in custody, they are directed to be released forthwith, if not wanted in any other case.
(Shyam Kishore Sharma, J.) (Amaresh Kumar Lal, J.) Patna High Court, Patna Dated the 3rd of August, 2012, A.F.R. KKSINHA/-