Patna High Court
Md. Nizam & Anr vs State Of Bihar on 19 April, 2010
Author: Shyam Kishore Sharma
Bench: Shyam Kishore Sharma, Gopal Prasad
Criminal Appeal (D.B.) No. 276 of 2004
With
Criminal Appeal (D.B.) No. 287 of 2004
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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
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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)
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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.
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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).
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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.
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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.