Haridwar Yadav vs The State of Bihar

M.L. Visa, J.—Being aggrieved by the judgment and order dated 23.12.1987 passed by Additional Sessions Judge-XIII, Patna in Sessions Trial No 332 of 1982 convicting and sentencing all the five ap-pellants to undergo imprisonment for life under Sections 302/34 of Indian Penal Code (in short "IPC") and rigorous imprisonment for five years each u/s 201 read with Section 302 of IPC and further sentencing each of them to pay a fine of Rs. 2,000/- u/s 302 read with Section 34 of IPC and in default in payment of fine to further undergo rigorous imprisonment for two years and fine of Rs. 1,000/-each u/s 201 read with Section 302 of IPC and in default in payment of fine to undergo rigorous imprisonment for one year and ordering 50% of the fine amount when deposited to be paid to Sanjay, the grandson of deceased by way of compensation, the appellant Haridwar Yadav has preferred criminal appeal No. 80 of 1988 and remaining four appellants have preferred criminal appeal No. 83 of 1988. Since both the appeals arise out of the same judgment and order, therefore, both have been heard together and are being disposed of by this common judgment. The case of prosecution, in short, is that on 27.8.1981, Chaukidar Khakhnu Paswan (not examined) went to Dulhin Bazar Police Outpost and informed that near Ram Lakhan Singh High School, Dulhin Bazar, blood in sufficient quantity, was seen around a hand boring pump and the trails of blood had gone from hand boring pump to a nearby well. On his infomation. station diary entry No. 321 dated 27.8.1981 was recorded by Balram Tiwary (PW 15), the then Assistant Sub-Inspector of Dulhin Bazar Police Outpost who alongwith constable Jay Nandan Singh (not examined) and armed force went to the well and procured a ''Jhagar'' (bunch of hooks) and with the help of villagers recovered a headless body from well whose hands and legs were tied by a napkin and some bricks were tied with dhoti. Inquest report of dead body was prepared and a number of persons, in the meantime, assembled there out of which Laldeo Yadav (PW10), nephew of deceased, chaukidar Narayan Paswan (not examined) and others identified the dead body as of Deo Narayan Yadav. In the meantime, family members of deceased also reached there and identified the dead body. From look, it appeared that by cutting the neck with a sharp edged weapon, murder was committed and in order to conceal the offence, headless body was thrown in the well. Balram Tiwary reported the matter to Officer-in-charge of Bikram Police Station by submitting a written report (Exhibit-7) and a formal first information report (Exhibit-9) against unknown under Sections 302/201 of IPC was registered and investigation was taken up. During investigation, sniffer dogs were deployed and a blood-stained Pajama from the saw mill of appellant Chandeshwar Paswan and a blood-stained Fasuli from the house of appellant Rajandhari Singh @ Dulli Singh were recovered and police, after investigation, submitted charge-sheet under Sections 302/201 of IPC against all the five appellants. Cognizance of the case was taken and case was committed to the Court of Session where charges under Sections 302/34 and 201 of IPC were framed against the appellants. Because they denied the charges, so they were put on trial and after trial, they were found guilty and were convicted and sentenced, as indicated above. The case of appellants, as it appears from the trend of their cross-examination is of complete denial of charges and their false implication. No witness on behalf of appellants was examined.

In order to prove its case, prosecution examined fifteen witnesses. Ramchandra Singh (PW 2) and Bhupali Rai (PW 4) are witnesses in whose presence, blood-stained Pajama and blood-stained Fasuli were recovered from the premises of appellant Ram Bhawan, Chandeshwar Paswan and Rajandhari Singh @ Dulli Singh. PW 2 has said that police dogs entered the saw mill of appellant Chandeshwar Paswan and police recovered a blood-stained Pajama which was kept beneath the bed on the chauki and police prepared seizure list on which he put his signature (Exhibit-1). Similarly, Bhupali Rai (PW 4) has said that police dog entered the house of Rajandhari Singh @ Dulli Singh and police recovered a Fasuli and prepared a seizure list on which he and Kameshwar Singh put their signatures (Ex-hibits-1/1 and 1/2). Dhodha Sao (PW 5) is a witness on inquest report on the dead body and has proved his signature (Ex-hibit-1/3) as well as signature of his brother Shiv Lochan Sao (Exhibit-1/4). Raghubir Yadav (PW 6) is also a seizure list witness when the blood-stained Pajama was recovered from the saw mill of Chandeshwar Paswan and he has proved his signature (Exhibit-1/7) and seizure list (Exhibit-2/2). Ram Badan Singh (PW 9) and Ramdas Singh (PW 12) are tendered witnesses. Dr. Md. Shamsul Haque (PW 13) and Dr. Sidheshwar Prasad Singh (PW 14) are doctors who had held post mortem examination on the body and head of deceased. Laldeo Yadav (PW 10) is the nephew of deceased who had identified the dead body when it was recovered from the well by police. Nirmal Kumar Srivastava (PW 11) was posted as a Clerk in Camp Jail, Phulwari where Balram Tiwary (PW 15) went there with the shoes which he had recovered from the well and in his presence, Balram Tiwary put the shoes in the feet of appellant Chandeshwar Paswan and when shoes were found fitting in the feet of Chandeshwar Paswan, he prepared a report (Exhibit-4). on which this witness put his endorsement and signature (Exhibit-5) and appellant Chandeshwar Paswan also put his signature (Exhibit-1/7).

Dr. Md. Shamsul Haque (PW 13) has said that on 27.8.1981 at 4.15 P.M., he conducted post mortem examination on the dead body of Deo Narayan Yadav and found as follows:

(1) The body was headless.

(2) Neck chopped off at the lower cervical vertebral level cutting the body of cervical vertebra.

(3) Incised wound 1-1/2" x 1/4" x fascia deep on the anterior aspect of the left shoulder joint.

(4) Incised wound 3-1/2" x 1/4" x fascia deep on anterior aspect of left shoulder joint.

(5) Incised wound about 10" running across the anterior abdominal mark passing just above the umblical level x 2" x abdominal cavity deep with omenture and coils of intestine coming out.

(6) Incised wound 2" x 1/2" x omenture deep of a loop of small intestine.

(7) Abrasion 1-1/4" x 1/2" on the posterior aspect of right elbow.

He has further said that in his opinion, death was due to shock and haemorrhage as a result of above injuries particularly injury of neck and injuries No. 2 to 6 were caused by sharp cutting weapon which may be Badharia, a heavy sharp cutting weapon. Time passed since death, according to him, was about sixteen hours. He has proved his post mortem examination report (Exhibit-6).

The case of prosecution is that after the headless dead body was recovered from a well and dog squad was called for and when the sniffer dog smelt the blood fallen near hand boring pump and the shoes which were recovered near the well from which the dead body was recovered, the sniffer dog went to another nearby well and sat down on its barricading wall and with the help of quarrel, the head of deceased tied in a napkin with bricks was recovered and inquest report (Exhibit-3/1) was prepared. This head was examined by Dr. Sidheshwar Prasad Singh who, in his evidence, has said that on 28.8.1981, he was posted as Civil Assistant Surgeon at Danapur and on that day at about 4.25 PM, he held post mortem examination on a head with neck and found as follows:

(1) Neck had been completely chopped-off at its upper part.

(2) Incised wound 4" x 1/2" x 3/4" in front of the upper part of neck just below the chin.

(3) Incised wound 2" x 3/4" x 1/2" on the left lower cheek.

According to him, death was due to shock and haemorrhage as a result of above noted injuries particularly injury No (1) and all injuries were caused by sharp cutting weapon which may be heavy sickle. He has proved his post mortem examination report which is marked Exhibit-6/1.

From the evidence of P.Ws. 13 and 14, both doctors who held post mortem examination separately on the headless body and head of deceased, it is established that death of deceased was homicidal and it resulted when his head was cut by a sharp cut weapon.

Bairam Tiwary (PW 15) is the investigating officer of this case and has said that on 27.8.1981 when he received information from chaukidar Khakhnu Paswan that around a hand boring pump near the school, blood was found, he recorded station diary entry and went to the place and found blood fallen towards north east of a hand boring pump and trails of blood had gone up to a well and he, after getting a quarrel from chaukidary, took out a headless body and recorded the statements of witnesses present there and prepared a report (Exhibit-7) and also prepared an inquest report (Exhibit-3). He has further said that he sent his report to Bikram Police Station for instituting a case and formal first information report (Exhibit-9) was drawn. He has said that he sent the dead body for post mortem examination and took up the investigation during which he found a pair of black shoes from a place adjacent east of hand boring pump. He has further said that dog squad was called and after smelling the blood fallen near hand boring pump and shoes, the sniffer dog went to a well situate west near the hand boring pump and from that well, head of deceased was recovered. He has further said that sniffer dog entered the saw mill of appellant Chandeshwar Paswan from where a blood-stained Pajama was recovered and the dog also entered the house of appellant Rajandhari Singh from where a Pachariya (Fasuli) was recovered. He has further said that the shoes which were recovered by him from the place were taken by him to Phulwari Jail where appellant Chandeshwar Paswan was asked to put the shoes and when he did so, the shoes fitted his feet and he then prepared a report (Exhibit-4) to this effect. He has proved the vest and napkin [Material Ex-hibits-(i) and (ii)] which were found on the headless body of deceased.

In this case, there is no eye witness. The entire case of prosecution is based on circumstantial evidence which has come in the depositions of Rit Lal Yadav (PW 1), Gorakh Yadav (PW 3), Saryug Sao (PW 7) and Niranjan Sao (PW 8). Rit Lal Yadav (PW 1), in his evidence, has said that on a Wednesday at 8 PM, he was going to purchase bidi when he saw all the five appellants and deceased standing near the shop of Baijnath and at that time, appellant Ram Bhawan Yadav was armed with a rifle. He has further said that there was a Qawwali programme at the shop of Mahendra Sao but at that time, it had not started and when after purchasing bidi, he was returning, by that time, programme had started and he also attended the programme and, thereafter, he went for sleep and on the next day, he heard hulla that a dead body was in a well and when he went there, he found that dead body of deceased was taken out from the well and was kept there. He has said that the well is situate two to three yards north west from the place where the Qawwali programme was held. He has further said that appellant Haridwar Yadav was having some affairs with the daughter-in-law of deceased and appellant Haridwar Yadav wanted to marry his daughter with the grandson of deceased but deceased was not agreeing on the ground that his grandson was a child and was not of marriageable age. Gorakh Yadav (PW 3) has said that on a Wednesday at about 9 PM, there was a Qawwali programme near the shop of Mahendra Sao and he had seen appellants Haridwar Yadav, Ram Bhawan Yadav and Lallan Yadav with deceased attending the programme and number of other persons were also there. About appellant Ram Bhawan Yadav, he has said that he was carrying a rifle. He has further said that on the next day in the morning, he came to know that a dead body was recovered from a well and when he went there, he found that dead body was of Deo Narayan Yadav. Saryug Sao (PW 7) has said that on 26.8.1981 when he was returning to his house after purchasing chilli, he saw appellant Haridwar Prasad Yadav Mukhiya, Lallan Yadav and Ram Bhawan Yadav with deceased standing near the shop of Baijnath Sao and appellant Ram Bhawan was carrying a rifle. He has further said that at about 10 PM, he again went to the shop of Mahendra Sao where there was a Qawwali programme and at that time also, he saw appellant Haridwar Yadav and deceased sitting on a bench in front of shop of Chattu Sao and appellant Ram Bhawan Yadav armed with a rifle was standing behind them. In para-2 of his evidence, he has said that deceased and appellant Ram Bhawan Yadav were having good relations but has again said that daughter-in-law of deceased was a woman of questionable character and was having affairs with appellant Haridwar Yadav and appellant Haridwar Yadav, who is the Mukhiya, wanted to marry his daughter with the grandson of deceased Deo Narayan Yadav but Deo Narayan Yadav was not agreeing on the ground that his grandson was still a child. In cross-examination, he has admitted that in the year, 1974, there was a criminal case between his brother Baiju Sao and appellant Haridwar Yadav. He has further admitted that in the year, 1980-81, he was a sugar dealer but his supply had been stopped due to appellant Haridwar Yadav. He has further said that appellant Haridwar Yadav was demanding a sum of rupees one hundred, five litre oil and five kilograms sugar per month and this demand he was making since 1979 and in the year, 1986, he said that in case he deposed against him, his supply would be stopped. Niranjan Sao (PW 8) has also said that at about 10 PM on 26.8.1981, he had seen deceased with appellants Haridwar Mukhiya and Lallan Yadav and appellant Ram Bhawan was standing behind them with a rifle and they all were attending a Qawwali programme. He has said that he also attended the programme for half an hour and because he had to bring grains to Chitkohra Market, therefore, he went to the Gola of Naga Singh for a truck and he met Naga Singh and waited there for truck and the Qawwali programme ended at about 1 O''clock in the night and people of neighbouring villages started crossing the road and after passing all of them, he lastly saw six persons who were appellants and deceased going and when they all came near to the Gola of Naga Singh, appellant Haridwar Yadav, Lallan Yadav, Ram Bhawan Yadav and deceased went towards west and then appellant Dulli Singh asked appellant Chandeshwar to accompany Mukhiyaji and then they all went towards a High School situate in the west. His further evidence is that about fifteen minutes thereafter, he heard the sound of gagging but he did not apprehend killing of any body because he had seen one of those six persons already armed with a rifle. In para-2 of his evidence, he has said that on the next day at about 9-10 AM, he found a number of persons going towards school and he also went there where he found that blood was fallen near a hand boring pump and blood trails had continued upto a nearby well and chaukidar Khakhnu reached there who went to Police Station for lodging information and police came and a headless dead body was taken out from the well. He then saw that the napkin which the appellant Lallan Yadav was carrying on the previous night was tied with the vest of deceased but because body was headless, therefore, he could not confirm at that time that it was the body of deceased Deo Narayan Yadav. According to him, the head was recovered on the next day when sniffer dog was deployed and that head was of deceased Deo Narayan Yadav. He has further said that appellant Haridwar Yadav was having some affairs with the daughter-in-law of deceased Deo Narayan Yadav. In para-6 of his cross-examination, he has admitted that there was a litigation under Sections 144 and 107 of Criminal Procedure Code between him and appellant Haridwar Mukhiya in respect of some land which he had purchased in the year, 1979 from Kalawati Devi and, thereafter, the same land was purchased by appellant Haridwar Yadav.

The prosecution, on the basis of evidence of PWs 1, 3, 7 and 8 and also on the basis of recovery of a blood-stained Pajama and Batharia (fasuli) from the possession of Chandeshwar Yadav and Ram Bhawan Yadav, Rajandhari Singh @ Dulli Singh respectively wants to prove the case against the appellants. So far recovery of blood-stained Pajama from the saw mill of appellant Chandeshwar Paswan and Fasuli from the house of appellant Rajandhari Singh @ Dulli Singh are concerned, Ramchandra Singh (PW 2) and Raghubir Yadav (PW 6) who is one of the two seizure list witnesses, on the seizure of blood-stained Pajama, in para-5 of his cross-examination, has said that at the time of seizure, about five to six workers were working in the saw mill which is open from all the sides and any body can easily enter the saw mill. In para-4 of his evidence, he has said that appellant Chandeshwar Paswan was not present at the time of seizure. Similarly, Bhupali Rai (PW 4), who is one of the seizure list witnesses on the seizure of fasuli from the house of appellant Rajandhari Singh @ Dulli Singh, in para-5 of his evidence, has said that appellant Rajandhari Singh @ Dulli Singh was not present and his wife was there. Notwithstanding this fact PW 15, who is the Investigating Officer of this case, in para-19 of his evidence, has said that on 21.9.1981, he sent the blood-stained Pajama, fasuli and blood-stained soil which he had collected in a sealed packet to Forensic Science Laboratory by his forwarding letter. He has proved his letter which is marked Exhibit-11 and the receipt of his letter which is marked Exhibit-12. Although the prosecution has not brought the report of Forensic Science Laboratory on record but it has been brought on record by appellants. Exhibit-A is the report of Director of Forensic Science Laboratory, Patna which shows that white Pajama with brown stains and one Fasuli with a wooden handle and with brown stains in packets marked C and D respectively alongwith one Ganjee and some earth were sent for examination and after examination, it was found that although blood was detected in the Ganjee and earth but no blood was detected in white Pajama and Fasuli. So the recovery of Pajama and Fasuli with brown stains from the saw mill of Chandeshwar Paswan and from the house of Rajandhari Singh @ Dulli Singh does not in any way help the case of prosecution.

So far fitting of shoes which were seized by Investigating Officer near the well from the place where the body of deceased was recovered in the feet of appellant Chandeshwar Paswan is concerned, it is the evidence of Investigating Officer that he prepared seizure list when he seized black shoes and blood stained earth and he has proved the seizure list (Exhibit-2/1). This seizure list shows that it was prepared on 27.8.1981. Exhibit-5 which is the report of Investigating Officer which he prepared when the recovered shoes were found fit in the feet of Chandeshwar Paswan is dated 17.11.1981. The Investigating Officer has not made it clear that between the period when the shoes were seized on 27.8.1981 to 17.8.1981 when it were found fit in the feet of appellant Chandeshwar Paswan where the shoes were kept. The shoes have not been produced in Court although the Ganjee and napkin found with the headless body of deceased were produced in Court. The Investigating Officer did not make any prayer to Court for deputing a Magistrate in whose presence, the test of shoes by putting the same in the feet of Chandeshwar Paswan be made. Nirmal Kumar Srivastava (PW 11), a clerk posted in the jail who is said to be witness when the shoes were put in the feet of appellant Chandeshwar Paswan has said that the number of shoes was six and such type of shoes are available in market and he had never seen appellant Chandeshwar Paswan putting such shoes before. Number six size of shoes is general size and if the shoes fitted in the feet of Chandeshwar Paswan that does not conclusively prove that the shoes belong to Chandeshwar Paswan. Now coming to the evidence of PWs 1, 3, 7 and 8 who had seen the deceased and appellants attending a Qawwali programme, it goes without saying that their evidence is circumstantial evidence. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, , the following conditions which are required for a conviction based on circumstantial evidence have been laid down:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must or should'' and not ''may be'' established.

(2) 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.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for 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.

Mr. Lala Kailash Bihari, learned Additional Public Prosecuter has given much stress on the evidence of Niranjan Sao (PW 8) who, according to him, has said that when he saw the appellants and deceased going towards High School he, fifteen minutes thereafter, heard the sound of gagging and on the next day in the morning, he saw the dead body of deceased. Admittedly, this witness had litigation with appellant Haridwar Mukhiya and was on inimical terms. Besides this, he himself has said that when he saw the deceased and appellants going together, they were returning after attending a Qawwali programme which ended at about 1 O''clock at night and, thereafter, residents of neighbouring villages started crossing the road and in that process, at last he saw appellants and deceased going together. He has further said that when headless body was recovered from well he found that a napkin was tied with the waist of deceased and that napkin he had seen with appellant Lallan Yadav on previous night and at the same time, he has said that as the body was headless so he could not confirm that the body was of deceased. This statement does not inspire confidence because when he had seen the deceased with the appellant Lallan Singh carrying a napkin which he found tied with the body of deceased, he at that time must have realized that the headless body may be of deceased. In para-9 of his evidence, he has said that when he went near the hand boring, pump and when Khakhnu chaukidar went to police to lodge information, he waited there for police but on arrival of police, he did not tell the police that on the previous night, he had seen the appellants with deceased. He further said that when the dead body was recovered from well thereafter also he did not tell that he had seen the deceased with appellants and he went for his own work. He has further said that he did not inform any body that on the previous night, he had heard the sound of gagging and on the next day, he went to Patna and returned after three to four days. So far evidence of PWs 1, 3 and 7 is concerned, they have simply said that they saw the deceased and appellants attending a Qawwali programme.

It is true that so far motive is concerned, in a murder case, it is not necessary for the prosecution to lead evidence on the point of motive and prove it if direct evidence is available but in a case which is purely based on circumstantial evidence, motive has a very important role. About the motive, prosecution witnesses have simply stated that appellant Haridwar Yadav was having some affair with the daughter-in-law of deceased and second motive is that appellant Haridwar wanted to marry his daughter with the grandson of deceased to which deceased was not agreeing on the ground that his grandson was a child. I do not find that motives, as suggested by prosecution in this case, are so strong to prompt the appellants to commit the murder of deceased. Besides this, these motives have not been proved satisfactorily in this case.

Considering the entire evidence on record, I find that it is not a case based on the theory of last seen which comes into play with the time gap between the period when deceased was last seen with appellants and when he was found dead when the time gap is so small to rule out the possibility of other persons committing the offence which has been laid down in the case of Bodhraj alias Bodha and others vs. State of Jammu and Kashmir 2003 Supreme Court Cases (Cri.) 201 relied upon by prosecution. In this case, the case of Sharad Birdhichand Sarda vs. State of Maharashtra (supra) has also been referred. Admittedly, deceased and appellants were returning after attending a Qawwali programme which was attended by a number of persons and they were returning when the programme ended meaning thereby all persons who were attending the programme also left the place and started for their respective destinations. In this view of the matter, if the dead body of deceased was found on the next day thrown in a well, it cannot be said that it is such a case that there cannot be any other person committing the offence except the appellants because deceased was seen in a Qawwali programme and, thereafter, returning with them on a road. The witnesses have said that appellant Ram Bhawan was carrying a rifle but, admittedly, no firearm injury was found on deceased and no witness has said that he saw any of the appellants carrying any Fasuli or any sharp edged weapon with him. So I find that it is not a case suggesting that circumstances in this case, if taken together, makes a complete chain leading to the only conclusion that appellants committed the murder of deceased.

In the result, these appeals are allowed and the judgment and order of Court below convicting and sentencing the appellants is hereby set aside. As all the appellants are on bail, they are discharged from the liabilities of their bail bonds.

S. Mukherjee, J.

I agree.