Badan Paswan vs State of Bihar

R.N. Prasad, J.—The appeal has been preferred against the judgment and order dated 30.11.1994/3.12.1994 passed by the Sessions Judge, Bhojpur at Arrah in S.T. No. 307/91.

The prosecution case as has been stated in the fardbeyan is that one Bikrama Yadav gave his fardbeyan at 9.35 A.M. before the Sub-Inspector of Police of Sinha Out-post at the house of Badan Paswan, Appellant, that at about 6 A.M. when he returned from night patrolling duty, he learnt that Badan Paswan who knew witch-craft, was assaulting his wife. He went there and saw that Badan Paswan was assaulting his wife with Dab. He was chasing the people assembled there and threatening them. He was saying that he was sacrificing his wife to Goddess Durga. The occurrence was witnessed by Darichhan Sharma, Shib Dayal. Ram and may others.

On the basis of fardbeyan, formal first information report was drawn, investigation was taken up and on completion of investigation charge-sheet was submitted in the court. The court took cognizance and committed the case to the court of Sessions for trial. The trial Court convicted the Appellant for the offence u/s 302 I.P.C. and sentenced him to imprisonment for life.

The prosecution in support of its case examined 12 witnesses, out of whom P.Ws. 1, 6, 7, 9 and 10 were declared hostile. P.W. 2 is witness to the inquest and seizure. P.W. 3 is the informant. P.Ws. 5 and 8 claimed that they reached at the place of occurrence after assault. P.W. 11 is the Investigating Officer and P.W. 12 is Doctor who held postmortem over the dead body. The oral evidence of P.Ws. 3, 5 and 8 thus is relevant for consideration. P.W. 3 is the informant. As per fardbeyan it appears that he claimed to be eye witness to the occurrence. However, before the court he resiled from the previous stand and he categorically stated that he did not see the Appellant committing murder of his wife. However, the witness stated that when he reached there he saw the dead body near the door. The Appellant was standing there with a Dab and was saying that he sacrificed his wife to Goddess Durga. In cross-examination the witness, however, stated that he had gone to Sinha Out-post to inform the police. P.W. 8 is Chaukidar who is resident of different village. His evidence is that P.W. 3 had disclosed about the occurrence and he had gone to the place of occurrence and saw the dead body lying on the ground. The Appellant was standing there with a Dab. He was saying that he had sacrificed his wife to Goddess Durga. However, in cross-examination the witness stated that his statement was never recorded by the police. Therefore, evidently for the first time he came to depose in the court and as such his evidence is not of any use. P.W. 5 is Chaukidar of different village. His evidence is that Bikrama Yadav, Chaukidar, had disclosed about the murder and as such he had gone to the place of occurrence. He had seen the Appellant with Dab. He was uttering that he had sacrificed his wife to Goddess Durga. From the evidence discussed above it is manifest that evidence of P.W. 8 cannot be relied upon as he for the first time came to the court to depose. His statement was not recorded by the police. However, the witness P.W. 3 at the first instance in the fardbeyan claimed to be eye witness to the occurrence but he resiled from his previous statement and stated only to the effect that when he reached the place of occurrence Appellant was standing with Dab in his hand and uttering that he had sacrificed his wife to Goddess Durga. P.W. 5 is of different village and reached the place of occurrence after the occurrence.

Thus it is evident that the case is based on circumstantial evidence. There is no direct evidence in the case. However, no question was put to the Appellant u/s 313 of the Code of Criminal Procedure that he was standing near the dead body with blood stained Dab in his hand. Similarly no question was put to the Appellant that in presence of witnesses he uttered that he had sacrificed his wife to Goddess Durga. These circumstances are relevant but these circumstances were not put to the Appellant and as such prosecution cannot take advantage of such evidence/circumstances. In the case of circumstantial evidence chain of circumstances must be complete and the evidence brought on record must establish the guilt excluding all hypotheses of innocence. On consideration as discussed above we are of the view that the prosecution has failed to bring on record the legal evidence to complete chain of circumstances and the evidence/circumstances brought on the record is not such as to establish the guilt of the Appellant excluding all hypotheses of innocence.

Thus, in our view, the Appellant deserves benefit of doubt and accordingly appeal is allowed. The judgment and order of conviction is hereby set aside. The Appellant is in jail. He is directed to be released forthwith if not required in any other case.