Patna High Court
Amerika Ram vs The State Of Bihar on 24 January, 2019
Author: Prakash Chandra Jaiswal
Bench: Rakesh Kumar, Prakash Chandra Jaiswal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.976 of 2012
Arising Out of PS. Case No.-57 Year-2010 Thana- MATIYARIA District- West Champaran
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Mohan Ram, son of Late Chunni Ram, resident of Village Mehnaul Khurd,
P.S. Matiyariya, District West Champaran. ... ... Appellant.
Versus
The State of Bihar. ... ... Respondent.
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WITH
Criminal Appeal (DB) No. 863 of 2012
Arising Out of PS. Case No.-57 Year-2010 Thana- MATIYARIA District- West Champaran
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Amerika Ram, son of Thag Ram @ Matha Ram, resident of Village- Mehnaul
Khurd P.S. Matiyariya, District West Champaran. ... ... Appellant.
Versus
The State of Bihar. ... ... Respondent.
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Appearance :
[In Criminal Appeal (DB) No. 976 of 2012 & In Criminal Appeal (DB) No. 863 of 2012]
For the Appellants : Mr. Anil Singh, Amicus Curiae
For the Respondent : Mr. Ajay Mishra, A.P.P.
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CORAM:HONOURABLE MR. JUSTICE RAKESH KUMAR
AND
HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL)
Date : 30-01-2019
As both the aforesaid criminal appeals have cropped
up from the same judgment and order of conviction and
sentence, hence they are taken up together for consideration and
disposed of by this common judgment.
2. Heard Mr. Anil Singh learned amicus curiae for
the appellants and Mr. Ajay Mishra learned Additional Public
Prosecutor for the State on both these appeals.
3. The aforesaid two criminal appeals have been
preferred against the judgment and order of conviction dated
Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019
2/33
23.07.2012and order of sentence dated 25.07.2012 passed by the learned Ad hoc Additional Sessions Judge-III, West Champaran at Bettiah in Sessions Trial no. 69 of 2011, arising out of Matiyaria P.S. Case No. 57 of 2010, whereby the learned Trial Court convicted the accused Mohan Ram and Amerika Ram under Section 302 & 201/34 of the Indian Penal Code (hereinafter in short referred to as the 'I.P.C.') and sentenced them to undergo life imprisonment and also slapped them with a fine of Rs.10,000/- each under Section 302 I.P.C. and further sentenced them to undergo rigorous imprisonment for three years each and also slapped them with a fine of Rs.1000/- each under Section 201/34 I.P.C. All the sentences were directed to run concurrently.
4. The factual matrix of the case is that Matiyaria P.S. Case No.57 of 2010 was initially instituted under Section 364/34 I.P.C. and subsequently added Section 302, 201, 120-B and 34 I.P.C. against Mohan Ram, Amerika Ram and others on the basis of fardbeyan of Rudal Yadav, son of Late Prasad Yadav recorded by S.I. Sheo Muni Prasad of S.H.O. P.S. Matiyaria on 23.09.2010 at 6 PM at Done canal pool near village Mehnaul Khurd with the allegation in succinct that on 22.09.2010 at around 2 PM his elder brother, namely, Prem Yadav stepped out Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 3/33 of the house on the motorcycle with Rs.50-60 lakhs to give it to some person who had to catch the train. At the time of departure he also uttered to get the wheat and paddy ladden on two bullock carts parked on canal sent to Narkatiaganj but he did not regress to the house till date. Bullock carts pullers, namely, Sukhdeo Mahto and Radha Mahto phoned the informant about not arrival of Prem Yadav at the Narkatiaganj and their presence at the gola of Ramjee Sah along with wheat and paddy. On the said information, informant searching his brother arrived at Narkatiaganj gola and sold out the wheat and paddy getting it weighed and arrived at village Mehnaul Khurd where he learnt about parking of motorcycle of his brother at the house of Mohan Ran. He also learnt that his brother had dined at the house of Mohan Ram in the night and there was spar with Amerika Ram there in the evening. He also learnt that his brother had arrived on 22.09.2010 at 7 PM near the bridge of the canal to take care of the wheat and paddy and getting the aforesaid two bullock carts headed to Narkatiaganj by the aforesaid bullock carts puller regressed to village Mehnaul Khurd but his whereabout is not known. Mohan Ram also did not inform him regarding parking of motorcycle of his brother at his house and dining by him there. It is claimed by the Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 4/33 informant that Mohan Ram and Ambika Ram @ Amerika Ram and others hatching conspiracy eliminated his brother kidnapped him and concealed his dead body at some unknown place.
5. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge- sheet against the accused Mohan Ram and Amerika Ram keeping the investigation pending against Pappu Ram, Bhulai Ram, Bhuran Ram and Butai Ram.
6. On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the Court of Sessions and after commitment and on transfer finally the case came in seisin of the learned Ad hoc Additional Sessions Judge-III, West Champaran at Bettiah for trial.
7. Charge against the accused Mohan Ram and Amerika Ram was framed under Sections 302/34, 201/34 and 120-B/34 of the Indian Penal Code. Charge was read over and explained to them by the Court to which they pleaded not guilty and claimed to be tried.
8. To substantiate its case, in ocular evidence, the prosecution has examined altogether 13 prosecution witnesses, namely, Sukhdev Mahto as P.W.1, Radha Mahto as P.W.2, Prem Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 5/33 Narayan Yadav as P.W.3, Prabhu Yadav as P.W.4, Jagan Manjhi as P.W.5, Rameshwar Yadav as P.W.6, Phoolmati Devi as P.W.7, Anwarul Mia as P.W.8, informant Rudal Yadav as P.W.9, Dr. Kumar Mukund Prasad Parbe, who had conducted the autopsy of the cadaver of the deceased as P.W.10, Dr. Ashok Kumar Choudhary, who had supervised conducting autopsy as P.W.11, Shiv Muni Prasad, first I.O. of the case, as P.W.12 and Krishna Kumar Manjhi, second I.O. of the case as P.W.13. The prosecution has also filed and proved several documents by way of documentary evidence in the case.
9. The statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. The accused persons have neither adduced any ocular nor documentary evidence in buttress of their case.
10. After hearing the parties and perusing the record, the learned trial court passed the impugned judgment and order of conviction and sentence as detailed in the earlier paragraph.
11. Being aggrieved and dissatisfied with the aforesaid judgment and order of conviction and sentence, the Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 6/33 convict Mohan Ram has preferred Criminal Appeal (DB) No.976 of 2012 and convict Amerika Ram has preferred Criminal Appeal (DB) No.863 of 2012.
12. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellants beyond all reasonable doubts or not.
13. It is submitted by learned amicus curiae for the appellants that the manner of occurrence as alleged by the prosecution is falsified by the statement adumbrated in fardbeyan itself as the fardbeyan was recorded on 23.09.2010 at 6 PM depicting knowledge of parking of the motorcycle at the house of Mohan Ram while the aforesaid motorcycle was recovered subsequent to the recording of the aforesaid fardbeyan. The fardbeyan was recorded on 23.09.2010 and on the basis of the said fardbeyan F.I.R. was registered on 23.09.2010 at 8 PM but the same was sent to the Court on 27.09.2010 without ascribing any plausible and convincing explanation for the said inordinate and abnormal delay, which creates serious doubt about the prosecution case. It is further submitted that the confessional statement was recorded on 24.09.2010 at 4:00 PM adumbrating the factum of recovery of Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 7/33 the dead body but the dead body was recovered on 24.09.2010 at 5 PM, which creates serious doubt about the aforesaid confessional statement. It is further submitted that from perusal of the testimonies of P.W.6 it appears that the dead body was not recovered on the basis of the confessional statement of the accused rather it was first recovered and police was informed and after recovery of the dead body the accused Mohan Ram was apprehended and his alleged confessional statement was recorded, hence the confessional statement recorded by the police is not leading to recovery and also creates serious doubt about credibility and sanctity of said confessional statement. It is further submitted that as per the witnesses' account deceased Prem Yadav had no animosity with the accused persons so the motive behind the occurrence is lacking and not proved by the prosecution. It is further submitted that as per the account of Rameshwar Yadav (P.W.6), given at one place fardbeyan was recorded on the door of Mohan Ram and at other place it was recorded at Matiyari Police Station, while as per the fardbeyan it was recorded on the Done canal pool near village Mehnaul, thus three places of recording of the fardbeyan has surfaced which creates serious doubt about recording of the fardbeyan and its sanctity. It is further submitted that actually after recovery of the Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 8/33 dead body, collecting of the postmortem report and evidence, the I.O. recorded the fardbeyan and lodged the F.I.R. and then sent it to the Court after four days and the F.I.R. is antedated. It is further submitted that first I.O. Shiv Muni Prasad (P.W.12), who has recorded the confessional statement of Mohan Ram, has not proved the same. It is also submitted that on the basis of the aforesaid doubtful confessional statement of co-accused Mohan Ram, not leading to recovery of the dead body, no conviction of the accused persons can be made. It is also submitted that the motorcycle, cash of Rs.5000/- and blood of the deceased are said to have been recovered from the house of the appellant Mohan Ram in his presence but copy of the seizure list has not been furnished to him which creates serious doubt about the search and seizure of the aforesaid articles. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case against the appellants beyond all reasonable doubt by adducing trustworthy, convincing and reliable evidence. Hence, the impugned judgment and order of conviction and sentence passed against the appellants by the learned trail court is liable to be set aside and the appellants are entitled to be acquitted.
14. On the other hand, learned APP advocating the Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 9/33 correctness and validity of the impugned judgment and order of conviction and sentence submitted that the informant has supported the prosecution case in toto and other material witnesses examined by the prosecution have also corroborated the same. There has been confessional statement of the accused persons and on the basis of the said confessional statement dead body has been recovered from the canal and the motorcycle, cash of Rs.5000/- and bloodstained soil have been recovered from the house of the appellant Mohan Ram and the learned Trial Court correctly appreciating the facts and evidence on record has rightly passed the impugned judgment and order of conviction and sentence which is liable to be upheld and these appeals are shorn of merit and are liable to be dismissed.
15. From perusal of the record, it appears that the fardbeyan of the informant was recorded on 23.09.2010 at 6 PM and on the basis of the aforesaid fardbeyan the formal F.I.R. was lodged on 23.09.2010 at 8 PM but the aforesaid F.I.R. was sent to the Court on 27.09.2010 after inordinate and abnormal delay of 4 days and the prosecution has not ascribed any convincing and plausible explanation for the aforesaid delay in sending the F.I.R. to the Court which creates serious doubt about the prosecution case.
Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 10/33
16. As per account of Rameshwar Yadav (P.W.6) as given in para-10 of his cross-examination, the statement of Rudal Yadav was recorded on 23.09.2010 at the door of appellant Mohan Ram but, in quite contradiction to his aforesaid statement, Rameshwar Yadav (P.W.6) has stated in para-11 of his cross-examination that they had taken police of P.S. Matiyari and statement of Rudal Yadav and of his own was recorded by the police at the Matiyari Police Station, while from the fardbeyan of the informant, it appears that it was recorded at Doon canal pool near the village Mehnaul Khurd. Thus, from perusal of the aforesaid statement of P.W.6 and the fardbeyan, it appears that three places of recording of the fardbeyan have surfaced. As as per the statement of P.W.6 given at one place it was the door of appellant Mohan Ram and at another place it was the Police Station Matiyari while as per the fardbeyan it was Doon canal pool near village Mehnaul Khurd. Hence the aforesaid aspect of the case creates serious doubt about recording of the fardbeyan and its sanctity.
17. From perusal of confessional statement of the appellant Mohan Ram (Ext.10), it appears that it was recorded on 24.09.2010 at 4 PM adumbrating the factum of recovery of dead body of Prem Yadav near the foundation bridge of Triveni Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 11/33 canal on the disclosure of appellant Mohan Ram. The aforesaid aspect of the case indicates that the dead body of the deceased Prem Yadav was recovered preceding to the recording of the aforesaid confessional statement, hence the aforesaid confessional statement is not leading to the recovery of the dead body of the deceased Prem Yadav. From perusal of inquest report, it appears that the dead body of the deceased Prem Yadav was recovered on the aforesaid place on 24.09.2010 at 5 PM. The aforesaid aspect of the case also creates serious doubt about the sanctity and credibility of the aforesaid confessional statement as if the dead body of the deceaed was recorded on 24.09.2010 at 5 PM then how the factum of its recovery has been adverted in the confessional statement of said appellant recorded on the said date at 4 PM i.e. one hour earlier to recovery of dead body. Rameshwar Yadav (P.W.6) has stated in para-11 of his cross-examination that informant Rudal Yadav (P.W.9) had telephoned to the police after getting the dead body. The aforesaid statement of P.W.6 indicates that the dead body of the deceased Prem Yadav was not recovered on the basis of confessional statement of appellant Mohan Ram rather it was first witnessed by Rudal Yadav, who in turn informed the police telephonically and police arrived there and recovered the dead Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 12/33 body. Thus the confessional statement of appellant Mohan Ram recorded by the police is not leading to recovery of the dead body.
18. From perusal of the aforesaid fardbeyan, it appears that it was recorded on 23.09.2010 at 6 PM depicting presence of motorcycle at the house of appellant Mohan Ram while from perusal of the seizure list marked as Ext.3, it appears that the aforesaid motorcycle was recovered on 24.09.2010 at 4:30 PM allegedly on the disclosure of the appellant Mohan Ram made on 24.09.2010 at 4 PM. The aforesaid aspect of the case creates serious doubt about the sanctity of the aforesaid fardbeyan as well as of the confessional statement of appellant Mohan Ram as adumbrating the factum of presence of motorcycle of the deceased at the house of appellant Mohan Ram in the fardbeyan give impression that the informant had knowledge of the parking of the aforesaid motorcycle at the house of Mohan Ram at the time of giving fardbeyan preceding to recovery of the same and recording confessional statement of Mohan Ram and the said motorcycle was not recovered on the basis of confessional statement of appellant Mohan Ram and the aforesaid confessional statement is not leading to recovery of the aforesaid motorcycle.
Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 13/33
19. The motorcycle of the deceased, cash of Rs.5000/- and the bloodstained soil are said to have been recovered from the house of appellant Mohan Ram on the basis of his confessional statement in his presence. But from perusal of the seizure list it appears that the copy of the said seizure list was not furnished to the appellant. Thus, there has been utter violation of Section 100 Cr.P.C. It also creates serious doubt about the process of aforesaid search and seizure and recovery and seizure of the aforesaid articles on the basis of confessional statement of the appellant Mohan Ram.
20. As per the prosecution case, the motorcycle of the deceased and cash of Rs.5000/- was recovered on the basis of confessional statement of appellant Mohan Ram but Prabhu Yadav (P.W.4) has stated in para-2 of his examination-in- chief that after the apprehension of the accused he handed over the key of the motorcycle and money to the S.I. before him. The aforesaid statement of the said witness indicates that the motorcycle and money was not recovered on the basis of confessional statement of the appellant Mohan Ram rather he had himself handed over the key of the motorcycle and the money to the S.I. More over P.W.4 has not stated that on the basis of confessional statement of appellant Mohan Ram the Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 14/33 aforesaid articles were recovered. Thus the aforesaid aspects of the case eloquently indicate that the confessional statement has not led to the recovery of the motorcycle and money from the house of the appellant Mohan Ram. Hence, on the basis of the aforesaid confessional statement of appellant Mohan Ram not leading to the recovery of the dead body, motorcycle and money, conviction of the appellants cannot be made.
21. To substantiate its case, the prosecution has examined altogether nine material witnesses in the case, out of them Radha Mahto (P.W.2) has turned hostile. Though Sukhdev Mahto (P.W.1), who happens to be one of the bullock cart pullers, has stated in his examination-in-chief that he along with Radha Mahto had brought the paddy of the deceased Prem Yadav on bullock carts and halted the same near the canal and went to their house. They regressed to the aforesaid place at 9- 9:30 PM. The deceased Prem Yadav got the bullock carts shifted from there and left the place telling them that he would stay in the house of Mohan Ram in the night and would arrive Narkatiaganj in the following morning, but he did not arrive at Narkatiaganj on the following morning. Then he telephoned Rudal Yadav. Rudal Yadav going there got the paddy sold. But the said witness has stated in para-6 of his cross-examination Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 15/33 that halting bullock carts he did not went to his house while Prem Yadav left to his house. Prabhu Yadav (P.W.4) has also stated in para-7 of his cross-examination that after the brawl between the deceased Prem Yadav and appellant Amerika Ram, Prem Yadav went to his house. Thus, the aforesaid material and vital contradiction in the aforesaid statements of the said witnesses regarding the aforesaid aspect of the case rules out disclosing the factum of stay in the house of Mohan Ram in the night by Prem Yadav. More over in para-9 of his cross- examination, P.W.1 has stated that he had not divulged the factum of stay of Prem Yadav in the night in the house of Mohan Ram to the police. Though the said witness in para-2 of his examination-in-chief has stated about recovery of motorcycle of Prem Yadav from the house of Mohan Ram but he does not happen to be eye witness of the aforesaid recovery as in the said para itself he has stated that he heard about the aforesaid recovery from the house of Mohan Ram by the police. More over in para-9 of his cross-examination, he has stated that he had not divulged to the police the factum of recovery of the motorcycle of Prem Yadav from the house of Mohan Ram. Said witness appears to be hearsay witness of the entire facts as disclosed by him herein above as in para-10 of his cross- Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 16/33 examination he has stated that he has given his statement in his examination-in-chief as heard by him.
22. Though Prem Narayan Yadav (P.W.3) has claimed to have witnessed the spar between the Prem Yadav and the appellant Amerika Ram and extending threatening of dire consequences by Amerika Ram to Prem Yadav on 22.09.2010 at 4 PM on the bridge. He has also stated about staying of Prem Yadav in the night of 22.09.2010 in the house of Mohan Ram and presence of son-in-law (Damad) of Mohan Ram, namely, Pappu Yadav there. But in quite contradiction to the aforesaid statement of quarrel between them on the bridge he has stated in para-6 of his cross-examination that the quarrel was going on between them on chowk. The aforesaid contradictory statement of the said witness goes to rule out witnessing of any quarrel between Amerika Ram and Prem Yadav and extending threatening of dire consequences by Amerika Ram to Prem Yadav on 22.09.2010 by the said witness. The statement of P.W.3 regarding the stay of Prem Yadav in the house of Mohan Ram in the night is also ruled out by the statement of P.W.1 given in para-6 of his cross-examination to the effect that from the canal Prem Yadav went to his house i.e. not to the house of Mohan Ram. P.W.3 in para-6 of his cross-examination has Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 17/33 candidly denied any animosity between Prem Yadav and the accused persons. Likewise P.W.7 has also denied in para-5 & 11 of her cross-examination about animosity of her husband with the accused persons. P.W.9 (informant) has stated in para-7 of his cross-examination that his brother was not having animosity with anyone. Though P.W.4-Prabhu Yadav has stated about witnessing of spar between Prem Yadav and Amerika Ram on the Mehanul bridge and extending threatening of dire consequences by Amerika Ram to the Prem Yadav but in view of the statement of P.W.3, P.W.7 & P.W.9 about non-existence of any animosity between the Prem Yadav and accused persons & witnessing of quarrel between Prem Yadav and Amerika Ram by P.W.3 on the chowk and not on the bridge rules out the aforesaid statement of P.W.4.
23. Jagan Manjhi (P.W.5) has stated in his examination-in-chief that in the mid night he witnessed four persons carrying some article tying with the bamboo and two other persons proceeding ahead of them on ridge (Pagdandi) of the canal. He witnessed Butan Ram, Butai Ram, Amerika Ram, Mohan Ram, Bhulai Ram and Pappu Yadav in the torch light. On the following morning he listened about elimination of Prem Yadav and dumping his dead body in the Triveni canal. But in Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 18/33 para-6 of his cross-examination he has stated that he had divulged the factum of carrying of the article on the bamboo by the aforesaid persons in the night to the brother of Prem Yadav i.e. the informant on the following morning but the informant has not corroborated the factum of divulgence of the aforesaid fact by P.W.5 to him. Though in his examination-in-chief he has claimed to have witnessed the aforesaid accused persons carrying some article on the bamboo in the torch light but in para-7 of his cross-examination he has stated that he had witnessed them from 100 yards. He has even divulged the colour of the attire wore by them. But it is not possible to witness the person in the mid night only in the torch light from such a long distance and perceive the colour of attire wore by them. More over in para-14 of his cross-examination he has stated that he had flashed the torch light on the face of the aforesaid accused persons for five minutes but they neither got their face concealed nor assaulted him. The aforesaid aspect of the case also rules out witnessing of the accused persons carrying the dead body by the said witness in the torch light. As had the witness flashed the torch light on the face of the said persons continuously for five minutes, they would have concealed their face to avoid their identification by the said Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 19/33 witness and also would have assaulted the said witness on his desperatedness. More so, the aforesaid torch happens to be only source of identification of the accused persons in the course of carrying the dead body by them by the said witness but in para-6 of his cross-examination he has stated that he had not displayed the torch to the I.O. Thus, the aforesaid source of identification has also not been brought on record which creates serious doubt about the witnessing of the accused persons carrying the dead body in the night near the canal by the said witness. In view of aforesaid aspect of the case testimony of P.W.5 does not appear to be worth credence and reliable.
24. Rameshwar Yadav (P.W.6) has stated in para-1 of his examination-in-chief that Rudal Yadav (informant) is his brother-in-law. On the date of occurrence, he witnessed the deceased Prem Yadav proceeded to Mehanul on motorcycle taking Rs.50-60,000/- to purchase paddy. He disclosed him about proceeding by him for purchasing paddy. The aforesaid statement of P.W.6 happens to be in quite contradiction to the prosecution case and the testimony of the informant. As as per the prosecution case and the testimony of the informant Prem Yadav stepped out of the house taking Rs.50-60,000/- to give it to some person who had to catch the train and not to purchase Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 20/33 the paddy. Though in para-2 of his examination-in-chief, he has stated that on getting telephonic information by the bullock cart puller at around 12'o clock about not arrival of Prem Yadav at Narkatiaganj, Rudal Yadav went to Narkatiaganj and regressed from there. He learnt about presence of motorcycle of Prem Yadav at the house of Mohan Ram and dining by Prem Yadav at his house and there was spar between Prem Yadav and Amerika Ram, but he has not stated as to from whom he has learnt the aforesaid aspect of the case. More over the informant has not stated about the divulging the aforesaid aspect of the case to the P.W.6 on regression from Narkatiaganj. Though the said witness has stated in para-6 of his examination-in-chief that the dead body of Prem Yadav was recovered on the disclosure of Mohan Ram and Amerika Ram before him, but in para-11 of his cross- examination he has stated that on recovery of the dead body Rudal Yadav had telephoned to the police and then police had arrived there. The aforesaid statement of the said witness happens to be in quite contradiction to his earlier statement regarding recovery of the dead body on the disclosure of accused Amerika Ram and Mohan Ram. Though in para-5 of his examination-in-chief, the said witness has stated that police had made search of the house of Mohan Ram before him and had Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 21/33 recovered the motorcycle, cash of Rs.5000/-, key of the motorcycle and bloodstained soil from the Baithka of Mohan Ram but he has not stated about recovery of the aforesaid articles from the house of Mohan Ram on the disclosure of Mohan Ram which happens to be in quite contradiction to the statement of the informant. As as per the aforesaid statement of the informant the aforesaid articles were recovered from the house of Mohan Ram on the disclosure of Mohan Ram. More over, he has stated in para-12 of his cross-examination that S.I. apprehended the Mohan Ram at the very time of recovery of motorcycle by the constable. The aforesaid statement of the said witness indicates that the aforesaid motorcycle was not recovered on the disclosure of Mohan Ram. More over, the said witness at one place has stated that the fardbeyan of Rudal Yadav (informant) was recorded at the door of Mohan Ram while another place he has stated that the statement of Rudal Yadav was recorded at P.S. In para-19 of his cross-examination he has stated that his brother-in-law (deceased Prem Yadav) was having animosity with Amerika Ram but in quite contradiction to the aforesaid statement the informant has stated that the Prem Yadav was not having animosity with anyone. In view of the aforesaid contradictory statement of P.W.6 inter se and with that Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 22/33 of the statement of the informant, the said witness does not appear to be worth credence and reliable.
25. Phoolmati Devi (P.W.7), who happens to be the wife of the deceased is not the eye witness of the occurrence rather hearsay witness about brawl between Amerika Ram and deceased and extending threatening of dire consequences by Amrika Ram to him, recovery of motorcycle, cash of Rs.5000/- and bloodstained soil from the house of Mohan Ram and recovery of dead body of the deceased on the disclosure of Amerika Ram and Mohan Ram. Though she has stated to have learnt the aforesaid occurrence on arrival at the house of Mohan Ram in Mehanul Khurd but she has not disclosed the source of information of the aforesaid aspect of the case and no one has corroborated the factum of disclosure of the aforesaid aspect of the case to P.W.7. The statement of P.W.7 regarding recovery of the dead body of Prem Yadav on the disclosure of Amerika Ram and Mohan Ram also happens to be in quite contradiction to the statement of P.W.6 as discussed by me hereinabove. Though she has stated in para-2 of her examination-in-chief that police had recovered the motorcycle, cash of Rs.5000/- and bloodstained soil from the house of Mohan Ram but she has not stated about the recovery of the aforesaid articles from the house of Mohan Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 23/33 Ram on his disclosure. More over she does not happen to be eye witness of the seizure of the aforesaid articles. More so, in quite contradiction to the prosecution case and seizure list about the seizure of the motorcycle by the police and keeping of the said motorcycle by it. She has stated in para-9 of her cross- examination that police handed over the motorcycle to her by taking it from the house of Mohan Ram. Thus, the said witness also does not appear to be worth credence and reliable.
26. Anwarul Mian (P.W.8) has stated in his examination-in-chief that on disclosure of Amerika Ram & Mohan Ram about committing of the murder of Prem Yadav by them in the hut police recovered the bloodstained soil from the hut but the aforesaid statement of the witness is in quite contradiction to the prosecution case and the statement of the informant as it is neither adumbrated in the fardbeyan nor the informant has stated about disclosure of the commission of murder of Prem Yadav by the accused persons in his hut. Though the said witness has also stated about recovery of Rs.5000/-, motorcycle from the house of Mohan Ram and Amerika Ram and on their disclosure recovery of dead body from the Triveni canal bridge but he does not happen to be witness of the seizure of the aforesaid articles or the inquest Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 24/33 report. More over he has not stated about recovery of the motorcycle and cash from the house of Mohan Ram at his disclosure. His statement regarding recovery of dead body on the disclosure of Mohan Ram and Amerika Ram happen to be in quite contradiction to the statement of P,W.6, as discussed by me herein above. More over the said witness has stated in para-10 of his cross-examination that he regressed to his house on 24.09.2010 at 4:30 PM so he cannot be witness of recovery of the dead body of the deceased on disclosure of accused persons as the dead body was recovered on 24.09.2010 at 5 PM. Thus, in view of the aforesaid aspect of the case, the testimony of this witness is not worth credence and reliable.
27. From perusal of the testimony of informant Rudal Yadav (P.W.9), it appears that he has made an abortive bid to support the prosecution case by stating in his examination-in- chief in consonance to the prosecution case as adumbrated in the fardbeyan stating that on 22.09.2010 Prem Yadav went to village Mehnaul on motorcycle taking Rs.50-60,000/- to hand it over to some person who had to catch the train and for sending of paddy laden on two bullock carts parked at canal to Narkatiaganj. But he did not regress to the house on that day and on the following morning the bullock carts pullers, namely, Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 25/33 Sukhdev Mahto (P.W.1) and Radha Mahto (P.W.2) informed him about not arrival of Prem Yadav at Narkatiaganj and their presence at Ramjee Sah gola with the paddy and wheat. On the said information, he rushed to the Narkatiaganj and after vending the paddy and wheat he rushed to village Mehnaul to search his brother as his brother used to stay at the house of Mohan Ram. He quizzed Mohan Ram about his whereabouts but he denied his arrival at his house. On quizzing the villagers he learnt that his brother Prem Yadav had dined at the house of Mohan Ram in the last night and there was brawl between Amerika Ram and his brother on the bridge and Amerika Ram had extended threatening of dire consequences to him. He also learnt about the presence of his motorcycle in the house of Mohan Ram. He gave his statement to the police on the bridge. Police apprehended Mohan Ram and Amerika Ram in his presence. They confessed the factum of committing murder of his brother. Police searched the house of Mohan Ram and recovered motorcycle, cash of Rs.5000/- and bloodstained soil from his house and prepared the seizure list. He put his signature on the said seizure list. Mohan Ram and Amerika Ram also divulged the police about dumping of the dead body in the cyphone canal located near the foundation bridge. Police rushed Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 26/33 there and recovered the dead body and prepared the inquest report. He put his signature on the same. But he has not disclosed the identity and genuineness of the source of information of dining by the deceased Prem Yadav in the night at the house of Mohan Ram and brawl between Amerika Ram and the deceased on the bridge and extending threatening of dire consequences by the Amerika Ram to the deceased. Though he has stated about recovery of the motorcycle, cash and bloodstained soil from the house of Mohan Ram but he has not stated about recovery of the aforesaid articles from the house of the Mohan Ram on the disclosure of Amerika Ram and Mohan Ram. Though he has stated about recovery of dead body on the disclosure of aforesaid accused persons but the aforesaid statement of P.W.9 happens to be in quite contradiction to the statement of P.W.6 Rameshwar Yadav, as discussed by me herein above. In the para-7 of his cross-examination P.W.9 has stated that he for the first time witnessed the dead body of his brother one day later to his missing. Admittedly, the deceased got missing on 22.09.2010 which means that he must have witnessed the dead body of deceased on 23.09.2010 while as per the inquest report the dead body was recovered on 24.09.2010 at 5 PM. The aforesaid contradiction between statement of the said Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 27/33 witness and the inquest report creates serious doubt about the credibility and sanctity of his testimony. In para-7 of his cross- examination he has stated that police had recorded his fardbeyan on the canal where dead body was recovered. He had also recorded his beyan on the P.S. while as per the fardbeyan his fardbeyan was recorded on Doon canal bridge near village Mehnaul Khurd. Thus, he appears to have given contradictory statement regarding place of giving fardbeyan. The aforesaid statement also creates serious doubt about the sanctity of the fardbeyan and the prosecution case. As as per his aforesaid statement his fardbeyan was recorded where the dead body of his brother was found. The dead body of the deceased was found on 24.09.2010 at 5 PM while his fardbeyan was recorded on 23.09.2010 at 6 PM. More over in para-9 of his cross- examination he has stated that money and motorcycle was recovered one day later to recording his statement. As per his aforesaid statement the aforesaid recovery must be of 25.09.2010 as his fardbeyan was recorded on the canal bridge on 24.09.2010 at 5 PM at the time of recovery of dead body but from perusal of the seizure list, it appears that it was recovered on 24.09.2010 at 4:30 PM. In view of the aforesaid aspect of the case and the vital and material contradiction between the Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 28/33 testimonies of the witnesses inter se, between the testimony of witnesses and fardbeyan, seizure list and not disclosure of identity and genuineness of source of information etc. creates serious doubt about credibility and sanctity of testimony of the said witness and does not appear to be worth credence and reliable.
28. From perusal of testimony of Shiv Muni Prasad (P.W.12), first I.O. of the case, it appears that he has stated in his examination-in-chief that he was posted at P.S. Matiyaria on 22.09.2010 and recorded the fardbeyan of the informant on Doon canal pool in village Mehnaul Khurd. The aforesaid statement of the I.O. indicates that he had recorded the fardbeyan on 22.09.2010 but from perusal of the fardbeyan it appears that it was recorded on 23.09.2010 at 6 PM. Though in his examination-in-chief he has stated about recovery of motorcycle, cash of Rs.5000/- and recovery of the dead body but he has not stated about recovery of the aforesaid articles and dead body on the disclosure made by the accused Mohan Ram. In para-13 of his cross-examination he has stated that none of the witness has claimed to have witnessed the occurrence before him. In para-15 of his cross-examination he has stated that none has seen committing occurrence. He apprehended the accused Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 29/33 Mohan Ram from his house only on the basis of suspicion. In para-21 of his cross-examination he has stated that the confessional statement of the accused persons was recorded in the camp Mehnaul Khurd. But as per the witnesses' account confessional statement of the aforesaid accused persons was recorded at the house of Mohan Ram. Thus, in view of the aforesaid contradictory statement given by the I.O. against the time of recording fardbeyan, confessional statement, place of recording the confessional statement of the accused persons creates serious doubt about the prosecution case and recording of the aforesaid fardbeyan and the confessional statement and recovery of the aforesaid articles on the basis of disclosure of the accused persons. In view of the aforesaid facts and circumstances of the case, I find that the prosecution has utterly and miserably failed to substantiate existence of any animosity between the appellants and the deceased, stay of the deceased at the house of Mohan Ram in the night on 22.09.2010 and taking meal there, witnessing of committing murder of deceased by the accused persons by any witness, witnessing of the deceased with the accused persons preceding to the occurrence, recovery of the incriminating articles and dead body of the deceased on the basis of confessional statement of the accused persons etc. by Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 30/33 adducing consistent, reliable and worth credence evidence.
29. The case in hand appears to be based on merely circumstantial evidence. In the case of holding the accused guilty on the presence of circumstantial evidence, the circumstances from which an inference of guilt of accused is sought to be drawn must be cogent and firm. Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none-else and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. But the prosecution has utterly and miserably failed to substantiate cogent and firm circumstances having definite tendency unerringly pointing towards the guilt of the appellants.
30. Hon'ble Apex Court in Shard Birdhichand Sarda Vs. State of Maharshtra reported in 1984 (4) SCC 116 has been pleased to postulate the cardinal principle regarding Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 31/33 the appreciation of circumstantial evidence by holding that whenever the case is based on circumstantial evidence, the following features are required to be complied with and proved by cogent evidence:
(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely may be fully established (ii) The facts 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 (iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground from the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
31. Hon'ble Apex Court in Kanhaiya Lal Vs. State of Rajasthan reported in (2014) 4 Supreme Court Cases 715 has been pleased to rule that the circumstances of last seen together does not by itself necessarily lead to inference that it was accused who committed crime. There must be something Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 32/33 more establishing connection between accused and the crime, that points to guilt of accused and none else. Mere non- explanation of being last seen together with deceased person on part of accused, by itself cannot lead to proof of guilt against him. It is further held that where a case rests squarely on circumstantial evidence, reiterated, inference of guilt can be justified only when all incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person. Circumstances from which an inference as to guilt of accused is drawn have to be proved beyond reasonable doubt.
32. Having regard to facts and circumstances of the case and considering the gamut of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charges levelled against the appellants beyond all reasonable doubt by adducing convincing, cogent, consistent and wroth credence ocular and documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned Trial Court is set aside and the appellants are acquitted of all the charges levelled against them. As the appellant-Mohan Ram of Cr. Appeal (DB) No.976 of 2012 is in custody, he is Patna High Court CR. APP (DB) No.976 of 2012 dt.30-01-2019 33/33 directed to be released forthwith from the custody, if not wanted in any other case while as appellant Ameriak Ram is on bail, he is discharged from the liability of bail bond. Accordingly, both these Criminal Appeals are allowed.
33. Let a copy of the first page and the last page of this Judgment be handed over to the learned amicus curiae. Learned amicus curiae be paid prescribed fee by the Patna High Court Legal Services Committee.
(Prakash Chandra Jaiswal, J.) Rakesh Kumar, J. I agree.
(Rakesh Kumar, J.) Trivedi/-
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