Patna High Court
Laldeep Bhagat vs State Of Bihar on 12 January, 1995
Equivalent citations: 1996(1)BLJR247
JUDGMENT Ram Nandan Prasad, J.
1. This appeal has been filed against the judgment and order of conviction and sentence dated 11.9.1989 passed by the 3rd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 142 of 1989. The appellant has been convicted for the offence under Sections 302, 376 and 201 of the Indian Penal Code and has been sentenced to undergo imprisonment for life, rigorous imprisonment for ten years and five years under the aforesaid sections respectively. The sentences were ordered to run concurrently.
2. The case of the prosecution is that the informant P.W. 11 went to the police station along with villagers and the appellant on 13.3.1988 and gave his Fardbeyan at about 9.45 A.M. stating, inter alia therein, that on 11.3.1988 his sister Nazma Khatoon had gone to Kurthani Gudri Bazar for selling Bananas. She did not return to her house in the evening. He searched her but he could not find her any trace. On 13.3.1988 while he was coming to the police station, Binda Paswan P.W. 10 of village Ballia Malang met him and disclosed that in the evening of 11.3.1988 there was rain and storm and his sister took shelter in the cattle shed of one Brahmdeo Thakur. He had gone to tie cattle and he found the appellant talking with her and they went towards west when rain stopped. The informant on the aforesaid information called the appellant but he did not give any clue of his sister. He also learnt from the villagers that wheat crops in a field situated towards south of Ballia Chowk near a tank were trampled.
3. On the aforesaid Fardbeyan a formal F.I.R. (Ext. 6) was registered for the offence under Sections 363, 365 and 366-A of the Indian Penal Code and the case was taken up for investigation. During interrogation by the police the appellant made confession of his guilt and pointed out the place where he had concealed the dead body of Nazma Khatoon and on the basis of the aforesaid disclosure a gunni bag was recovered from Fatehpur Tank in which the dead body of Nazma Khatoon was found and thereafter the case was converted into one under Sections 302, 376 and 201 of the Indian Penal Code. After investigation charge-sheet was submitted by P.W. 5. On receipt of the charge-sheet in the court, cognizance was taken and the case was committed to the court of Sessions for trial.
4. The defence of the appellant was that he has been falsely implicated in the case. He has denied to have made any confessional statement before the police leading to the recovery of the dead body of the victim lady. He also denied that Nazma Khatoon the deceased was in his company in the evening of 11.3.1988.
5. The prosecution in support of its case examined 13 witnesses out of whom P.W. 9 has been tendered. P.W. 7 and P.W. 12 are seizure witnesses. P.W. 4 took the dead body for post-mortem and identified the dead body before the doctor. P.W. 3 held postmortem over the dead body. P.W. 5 submitted charge-sheet. P.W. 6 recorded the Fardbeyan and visited the Cattle Shed of Brahmdeo Thakur. P.W. 10 disclosed to the informant that he had seen the appellant and the victim girl in the Cattle Shed of Brahmadeo Thakur. P.W. 11, the informant, P.W. 1, P.W. 2 and P.W. 8 have deposed that P.W. 10 had disclosed that he had seen the appellant and the victim girl in the Cattle Shed of Brahmdeo Thakur. P.W. 13 is the Investigating Officer. One Durga Pd. Jaiswal, Judicial Magistrate was also examined as a court witness.
6. At the very outset it is, pertinent to mention herein that the death of the victim girl has not been challenged by the appellant. It is the case of the prosecution that the dead body was recovered from the place pointed out by the appellant. The post-mortem was also held over the dead body by P.W. 3 and he found ante-mortem injury over the dead body. The dead body was identified by the informant and thus, the death in the case has been well proved.
7. Admittedly, there is no eye witness to the occurrence. The doctor P.W. 3, who held the post-mortem over the dead body, had found injury on the neck, leg and Vagina. The doctor P.W. 3 opined that the girl was raped and strangulated. Admittedly, there is no evidence. as to who committed rape and strangulation. The prosecution case is based mainly on circumstantial evidence that the victim girl was last seen alive in the company of the appellant in the evening of 11.3.1988 and his confessional statement before the police leading to recovery of the dead body of the girl. In this regard the informant P.W. 11 has deposed that on 11.3.1988 his sister had gone to sell Bananas. In the evening, she did not return. He searched her but he could not find any trace of her. While he was going to the police station on 13.3.1988 Binda Paswan P.W. 10 disclosed that he had seen the victim girl and the appellant taking shelter in the Cattle Shed of Brahmdeo Thakur as it was raining. When the rain stopped, the appellant and the victim girl went towards west. The appellant also confessed his guilt before the police and at the instance of the appellant the dead body of his sister was recovered. This fact has been corroborated by P.W. 1, P.W. 2 and P.W. 8, Binda Paswan P.W. 10 has deposed in Court that he had seen the appellant and one girl sitting in the Cattle Shed of Brahmdeo Thakur and they went towards west when the rain stopped. There is no evidence on record that any body had seen the appellant going towards the place wherefrom dead body was recovered. He also deposed that he disclosed the aforesaid fact to the informant. His statement was also recorded under Section 164 of the Code of Criminal Procedure. In the statement under Section 164 of the Code of Criminal Procedure P.W. 10 did not name either the appellant or the sister of the informant. His statement before the Magistrate was that he found one Mohamadan girl and one person of village Kamtaul sitting in the Cattle Shed of Brahmdeo Thakur. The Judicial Magistrate, who recorded the statement of P.W. 10 under Section 164 of the Code of Criminal Procedure has been examined as court witness. He had denied the suggestions given by the prosecution that at his instance P.W. 10 did not name the appellant and the victim girl. There is no evidence on the record that P.W. 10 identified the dead body to establish that she was sitting in the cattle shed and was talking with the appellant and hence it remained undisclosed that the victim was seen sitting in Cattle Shed with the appellant. The doctor P.W. 3, who held the post-mortem over the dead body found ante mortem injuries on the person of the victim girl and opined that she was raped and strangulated but there is no evidence on the record as to who committed rape and strangulation. Even if it is accepted that the appellant was seen with the victim girl, it is well established law that mere last seen is not sufficient for conviction of the accused unless chain of circumstances is established. From the discussions made above, it is obvious that chain of evidence is not complete.
8. Besides as stated above, the appellant is said to have confessed his guilt before the police and the dead body of the victim girl was recovered from the place as pointed out by the appellant. In this regard, P.W. 13 has deposed that the dead body of the victim girl was recovered from the placed pointed out by one Laldeep Bhagat and Ram Sanehi Ram. Ram Sanehi Ram was put on trial and was acquitted. Besides, the confessional statement before the police is not at all admissible in law. Section 25 of the Evidence Act says that no confession made before a police shall be proved against the person accused of any offence. Section 26 says that the confession by an accused while in custody of the police not to be proved against him. However, Section 27 of the Act is an exception to the aforesaid provision, whereby it has been made clear that the confession leading to recovery may be proved.
9. In the instant case it is said that the appellant confessed his guilt and gave detailed narration of the incident before the police but in view of the aforesaid provision only the confession to the extent leading to recovery of the dead body may be proved as admissible against the appellant. The remaining part of the confession cannot be used as evidence against the appellant. In this regard, in case of Agnu Nagesia v. The State of Bihar . and in the case of Md. Inayatullah v. State of Maharashtra , it has been held that the confession leading to recovery is only admissible in evidence against the accused persons. Thus, it is obvious that the confessional statement before the police cannot be used as an evidence against the appellant except the confession leading to recovery of the dead body.
10. In a case of circumstantial evidence, it is necessary that the fact so established should be consistent only with the hypothesis of the guilt of the accused that is to say they should not be explainable on any other hypothesis except that the accused is guilty and the circumstances should be of a conclusive nature. In the instant case the fact established are not of consistent only with the hypothesis of guilt of the appellant and the circumstances are not conclusive nature. Besides the chain of circumstances has not been established by the prosecution as stated above and hence the facts so established cannot be said to be sufficient for conviction of the appellant under Sections 302 and 376 of the Indian Penal Code save and except Section 201 of the Indian Penal Code.
11. Thus, we find no justification for upholding the conviction of the appellant under Sections 302 and 376 of the Indian Penal Code and accordingly his conviction under the aforesaid sections is set aside. However, it is obvious from the evidence as discussed above that at the instance of the appellant the dead body was recovered which shows that the appellant had knowledge about the concealment of the dead body for destroying the evidence. Thus, the conviction and sentence of the appellant under Section 201 of the Indian Penal Code as awarded by the trial court is confirmed and maintained. Learned Counsel for the appellant, however, says that the appellant is in jail for more than five years. If that be so, the appellant shall be released from the jail after verification that he has served the sentence of five years as awarded by the trial court. This appeal is dismissed with the aforesaid modification in conviction and sentence.