Ram Bilas Yadav vs The State of Bihar

P.K. Sinha and B.N.P. Singh, JJ.—The sole Appellant Ram Bilas Yadav stands convicted under Sections 302 and 201 of the Indian Penal Code, having been sentenced to rigorous imprisonment for life and a fine of Rs. 1000/-, in default to undergo simple imprisonment for one month for the former, and four years of rigorous imprisonment and a fine of Rs. 500/- (in default, simple imprisonment for 15 days) for the latter offence.

Informant Ram Kishore Yadav, brother of the deceased Tara Devi in his F.I.R. (court Ext.1) has stated that his sister was married about 25 years back having a daughter of 18 years, and a son which daughter, Phoolo Devi, was married at the instance of the informant with one Damodar Yadav about two years back but, thereafter, the Appellant got Phoolo Devi remarried to a relative of his brother which was objected to by Tara Devi. The allegation is that for that reason the Appellant and other accused, who though named in the F.I.R. but acquitted by the learned Trial Court, had murdered Tara Devi. The informant got information in the morning, on 30.3.1996 and enquired about that in the village of the Appellant and found the information correct but the dead body was missing. In his enquiry it was revealed that Tara Devi was murdered in the night of 17/18th March, 1996 who, at that time, was pregnant also.

The defence of the Appellant was assertion of his innocence though in his statement u/s 313, dated 28.6.1995, of the Code of Criminal Procedure he had admitted that Phoolo Devi was earlier married with Damodar Yadav with consent of Tara Devi, also admitting that on 3.3.1996 the Appellant had got her remarried with Hari Kishun Yadav. However, here he also claimed that this marriage had taken place with the consent of all.

Out of the witnesses examined by the prosecution, P.W.1, Jaleshwar Yadav and P.W.3, Raghubir Yadav, had turned hostile and did say nothing that could come to the aid of the prosecution. P.W.2, Yodani Yadav and P.W.4, Bishambhar Yadav were tendered for cross-examination and their evidences also do not render any positive help to the prosecution. It was P.W.5, the informant, who supported the allegations made in the F.I.R. though not claiming to be a witness to the occurrence yet affirming in his evidence that the dead body of Tara Devi subsequently was excavated and he, having gone to that place, had identified the same.

The Investigating Officer, Shyam Kumar Singh has been examined as Court witness No. 1 whereas the doctor, who had conducted autopsy upon the dead-body is Court witness No. 2.

Now, coming to the evidence of P.W. 5 he has said that when, on receipt of the information from one Bachu Mian he had gone to the village of the Appellant, some unknown women had told him about the alleged murder of his sister at the hands of the Appellant and others. How ever he also named a number of persons of that village with whom also he had made enquiries, but admitted that all of them told that they did not know anything. As per his evidence (para 10) they were neighbours of the Appellant. He also admitted that he himself did not know as to who actually had murdered his sister.

In the backdrop of the prosecution evidence as aforesaid, it is the evidence of Court witness No. 1 which connects the Appellant with the alleged crime. He told the Court that on arrest of the Appellant, subsequently at the Police Station he had made a confession and had offered to point out the place where the dead body was buried after which he contacted the office of the Sub-divisional Officer where a Magistrate, Sri. Ram Sagar Paswan, was assigned for the excavation. The dead body kept in a gunny bag was dug out from the place pointed out by the Appellant, and identified by the informant. But before examining this aspect of the case, the evidence of C.W. 2 may be seen, who had performed postmortem on 1.4.1996 at 2 P.M. and had noted that scalp hair had fallen off, also finding bruises over the right anterior chest wall in upper part, in an area of 6" x 4". On dissection, 2nd to 6th ribs on the right side were found fractured, the right lung having been pierced with the broken ribs. In the opinion of the doctor the injuries were grievous and dangerous to life in ordinary course of nature and the death was caused due to asphyxia, haemorrhage as well shock, on account of the injuries. According to him death had taken place within one to two weeks of the examination. This report indicates homicide.

It is this main piece of evidence of the prosecution, i.e., excavation of the dead body on being pointed out by the Appellant, which has come under severe attack from the learned Counsel of the Appellant.

This aspect of the prosecution case may now be examined with the aid of evidence of P.W.5 and C.W.1. C.W.1 in that regard has asserted that on 31.3.1996 he received a confidential information that the Appellant was hiding himself in an orchard where after he went there, and finding him there, arrested him. Thereafter, with the Appellant he went to Karhari village on 31.3.1996 and came back to the Police Station where at 1 P.M. on the same day this Appellant confessed his guilt which was reduced in writing (Ext.2). According to the evidence of this witness the Appellant having given that statement, amounting to confession, also admitted that they had dug a ditch and had buried the dead body therein, offering to point out that place to the Investigating Officer. C.W.1 said that, thereafter, he filed an application before Sub-divisional Magistrate and Shri Ram Sagar Paswan, the Executive Magistrate was deputed for the job. On the same day with the Executive Magistrate and the Appellant, he went to Namokharpokhar where the Appellant pointed out the place which was dug out in presence of the Executive Magistrate, and the dead body of Tara Devi, kept in a bag, was recovered. He said that the head portion of the dead body was out of the gunny bag which body was identified by the informant and other witnesses to be that of Tara Devi''s. There, then he prepared inquest report, Ext.3, which besides the witnesses, was also signed over by the Executive Magistrate. He named four witnesses who were examined in that regard at the place of recovery itself. However, this witness also admitted that he had not filed any requisition for recording the confession of the Appellant u/s 164 of the Code of Criminal Procedure. He also asserted that he had noted in the case diary that he had gone to the place of recovery along with the Appellant but admitted that other witnesses who also had gone there were not required by him to give their statements. He also admitted that the gunny bag in which, allegedly, the dead body was kept, was not seized by him. Though he claimed that from the place of excavation itself he had forwarded the Appellant to the Court, but admitted that in the forwarding report he had not mentioned that the Appellant had confessed his guilt and that on the basis of that the dead body was recovered. He also admitted that the Executive Magistrate who had gone to the place of burial of the dead body had not taken statement of the accused. He also admitted that he had not noted as to whom the land, where the dead body was concealed, did belong.

The argument of the learned Counsel for the Appellant was that the Appellant had made no such confession rather his signature was obtained on a blank paper which was reduced into his confession, also claiming that the Appellant had not gone to that place nor on his pointing the excavation was done. For this the learned Counsel has taken the court through the evidence given in that regard by the informant.

Against the clear case of the prosecution as coming out from C.W.1 as well from Ext.2, that the Appellant was arrested on 31.3.1996 (the F.I.R. having been lodged on 30.3.1996 at 5.15 P.M.), P.W.5 clearly stated (Para 6) that the dead body was recovered on 30.3.1996, after sunset. This witness repeated that (in para 12) when he said that on 30.3.1996 in the evening the Daroga of Behra Police Station had told him that the dead body had been recovered from Namokharpokhar and required him to identify the same whereafter he reached at the pond on 30.3.1996. This witness said that when the dead body was taken out from the gunny bag, he identified the same to be that of his sister.

This witness also said that Juman Chowkidar had-told him on 30.3.1996 that the Appellant had been arrested though he did not tell him the time of arrest (Para 13).

This witness also admitted that the inquest report was prepared in his presence. This witness subsequently claimed, as opposed to his earlier statement that on being informed by the Police Officer he had gone to the place where the dead body was recovered, in answer to a court question (para 23) that when the dead body was recovered he also was present there. However, he categorically stated that at the time when the dead body was recovered, neither the Appellant nor any Magistrate was present. In para 24 of the deposition this witness asserted that he had filed the case before the dead body was recovered but could not say as to how many hours before the recovery he had filed the case. This also supports his contention that the dead body was recovered on 30.3.1996. Moreover, though the F.I.R. was recorded at 5.15 P.M., P.W. 5 has asserted (Para 25) that his statement was taken by the police at about 10-12 O''clock, in the day itself.

Taking clue from such assertion of P.W. 5, learned Counsel for the Appellant has argued that entire record of the case was manufactured by the police and though the F.I.R. was lodged earlier, it was shown to have been lodged at 5.15 P.M. and that the dead body was recovered on the date of recording of that F.I.R. itself, claiming that the documents were manoeuvered to show the recovery on the next day. It was pointed out that even the Executive Magistrate who could have thrown light on this aspect, was not examined nor anyone present at the time of the recovery of the dead body.

learned Counsel pointed out that the assertion of the defence that signature of the Appellant on his confession was taken on the day the dead body was recovered was contradicted by none other than RW.5 himself. From evidence of P.W. 5 it will appear that though he claimed that he also had gone to the Police Station on! arrest of Ram Bilas Yadav, he said that in his presence the police had not taken Appellant''s signature on plain paper, but he claimed that 10-12 hours after arrest, at the Police Station itself, this Appellant had told him that the police had obtained his signature on a blank paper. In that view of the matter it is apparent that there are serious contradictions in the evidences of P.W. 5 and that of C.W.1 about recovery of the dead body on the alleged statement of the Appellant.

Though the alleged confession of the Appellant made before police has been brought on record as Ext.2 but under the provisions of Section 26 of the Indian Evidence Act, 1872 the confession, if any, made by an accused while in custody of police, unless it was made in immediate presence of the Magistrate, could not be proved as against that person. There is no claim that at the time the confession was made a Magistrate was present. u/s 27 of the Evidence Act, statement of the accused whether it amounts to a confession or not, may be proved when any fact is deposed to as discovered in consequence of information received in such statement. Therefore, the confession part of Ext. 2 cannot be considered as evidence though that part of statement, which led to the recovery of the dead body may be taken into account. In so far as that part of Ext.2 is concerned, as already seen, there are serious contradictions in the evidences on record, P.W. 5 having contradicted the Investigating Officer on material points, including about the date of arrest of the Appellant and about the manner of recovery of the dead body. In that view of the matter, in our opinion it would not be safe to rely upon the evidence relating to the recovery of the dead body on the information allegedly provided by the Appellant. If this part of the prosecution case is not believed, there is hardly any other evidence to connect the Appellant to the murder of Tara Devi. In so far as the motive is concerned, that has been brought on the record in the evidence of P.W. 5 but he also admitted that no such objection was voiced by the Appellant in his presence (Para 11).

This being so, we are of the opinion that on the evidences that are on the record the Appellant could not have been convicted u/s 302 or u/s 201 of the Indian Penal Code. In result, therefore, this appeal is allowed and the order of conviction as well award of the sentences is hereby set-aside. The Appellant stands acquitted of the charges framed against him. The Appellant who is in custody, is ordered to be released, if not required to be detained in any other case.