Ramdeo Yadav vs State of Bihar

S.N. Jha and P.N. Yadav, JJ.—These two appeals on behalf of the sole Appellant each are directed against judgment and order of the 2nd Additional Sessions Judge, Aurangabad in Sessions Trial No. 5/16 of 1985/1998 convicting the Appellants under Sections 302/34 and 201 of the Indian Penal Code. For the former offence they have been awarded sentence of life imprisonment while no separate sentence has been awarded for the latter offence.

On 19.3.84 a written report was lodged by the ASI of Police Ainul Haque Khan of Nabinagar Police Station stating therein that on 17.3.84 a missing report had been lodged with respect to constable No. 306 Shafique Hasan. The inquiry revealed that on 16.4.84 Shafique Hasan had gone alone from police station to Nabinagar Bazar at 8 p.m. He was seen going towards Kalali where he had talk with Sarpanch Saryu Choudhary. At 9 p.m. he was seen sitting at the Kirana shop of Ramlal Singh. At that time Birendra Singh (one of the accused who died during trial) was seen going in drunken condition. He called Shafique Hasan. Along with him 7-8 persons went towards the college. The above information was recorded in the Station Diary (Sanha No. 391 dated 17.3.84) and inquiry commenced. It was learnt that on 11.3.84 Narendra Singh (another accused but acquitted) had been caught in a theft case. Shafique Hasan along with Havildar Ravi Brat Singh had taken him to jail. At that time Narendra Singh had threatened to kill him. On 14.3.84 he came out from jail. The report stated that the accused persons were anti-social elements and accused in many cases. A doubt was expressed that Narendra Singh after coming out from jail had kidnapped Shafique Hasan along with other accused to accomplish the threat given by him.

On the basis of said report Nabinagar P.S. Case No. 50 dated 19.3(sic) was registered u/s 364 IPC course of investigation on 20.3.84 at about 1.45 p.m. a headless body said to be this of Shafique Hasan was recovered all(sic)edly on pointing out by the Appellant Three days after on 23.3.84 the head was also recovered from near the place when the trunk had been recovered earlier, (sic) recovery of the dead body Section 302 (sic) the Penal Code was added to the array (sic) offences. On completion of the investigation chargesheet was submitted against the Appellants and six others charging that with kidnapping Shafique Hasan with (sic)tion to kill him, committing his murder (sic) concealing the dead body, thereby co(sic)ting offences under Sections 364, 302 and 201 of the Penal Code respectively

At the trial which followed, the pr(sic) ecution examined as many as 26 witness to prove its case. Out of them, P.W. (sic) Ramjee Ram, P.W. 6 Musa Mian, P.W. (sic) Gafoor Mian and P.W. 14 Prayag Pasi w(sic) tendered, while P.W. 4 Bishun Prasad, P.W. 11 Ram Subhag Yadav, P.W. 13 Ma(sic) Prasad, P.W. 19 Ram Chandra Tiwari, (sic) P.W. 20 Ram Lai Singh turned hostile. A(sic) Haque Khan on whose report the case was instituted was examined as P.W. (sic) while Officer-in-charge of Nabinagar Prasad the Investigating Officer of the case (sic) examined as P.W. 25 and Dharindhar (sic) the then Consolidation Officer, Nabinagar Prasad in whose presence the search and se(sic) was effected was examined as P.W.25

Amongst the rest P.W. 1 jan(sic) Singh, a Dafadar, stated that he was duty from 15.3.84 to 19.3.84 and he seen Appellant Ramdeo Yadav and other going towards Bhatti on 17.3.84 at (sic) 10-11 a.m. One Bishun Prasad and M(sic) Ram had told that he had been assa(sic) by accused Birendra Singh and Binay S(sic) He further disclosed that Shafique H(sic) he deceased, was sitting in a chair in front (sic) the shop of Ram Lal and he was called any the accused Birendra Singh. Later (sic)hulletan Ram told him that while he was (sic)ending call of nature some persons were (sic)dng out one person in the night at 9 p.m. on 16.3.84. P.W. 3 Saryu Prasad, a shop-(sic)peper, stated that on 16.3.84 at about (sic).30 p.m. Shafique Hasan had come to his (sic)ouse only to ask whether his liquor shop was open or not. Thereafter he sat in the shop of Deolal Singh in the night till 2-3 (sic)um He heard two-three days thereafter that Shafique Hasan was missing and search was going on. P.W. 5 Panchu Khan stated that on 16.3.84 at 8 p.m. he had seen accused persons including Appellants (sic)poing towards Kalali. On 17.3.84 at about 9 (sic)um he met Bishun Sonar, Bhuletan Ram, Bishhwanath Singh and Ram Lai Singh who informed that on 16.3.84. Shafique Hasan was sitting at the shop of Ram Lai Singh and thereafter accused persons took him. This witness identified the Appellants and two others, namely, Birendra Singh and Binya Singh. P.W. 7 Sadhu Prasad @ Ayodhya Prasad, a vegetable vendor, stated that he was an employee in the the liquor shop of Hasibul Hasan. On 16.3.84 the (sic)quor shop was closed and he had seen Shaifque Hasan sitting in the shop of Ramlal Singh In the night when he returned after taking meal he did not find anybody in the jquor shop. Bhuletan, who was also an nature in the said shop, returned after haIf an hour and said that he had heard come noise. He heard about the murder of Shafique Hasan 3-4 days after. P.W. 8 Bhuletan Prasad stated that on 16.3.84 at 9 p.m. when he went to attend the call of nature he heard some sound and from Found it appeared that Birendra Singh, Binay Singh and Narendra Singh were tak-(sic)ng some person and he could not say to whom they were taking and this fact was disclosed to him by Saryu Choudhary and Sadhu Prasad. P.W. 9 Gopal Singh, another chaukidar, stated that: he was on duty at the outpost at Mangal Bazar and Parsia on 16.3.84 when he saw accused persons" wandering. When he returned at about 8.30 p.m., he saw them going towards Sanichar Bazar. P.W. 10 Jagdish Paswan, another Chaukidar, stated that he saw the accused sitting at the shop of Ram Lal Singh. P.W. 15 Sundel Sao, a vendor, stated nothing about the occurrence. P.W. 16 (Ramdeo Sahu), a mason, stated that on 20.3.84 a spade was recovered from the well of one Ambika Singh by Mukhlal and seizure list was prepared in his presence. Later, on 20.3.84 he returned that spade which belonged to Janki Singh. He also stated that one constable who had come to call him, had informed about recovery of the trunk portion of the body of Shafique Hasan. P.W. 17 Mukhlal Sahu also stated about the recovery of the trunk portion of the body of Shafique Hasan. P.W. 18 Parmeshwar Ram stated about the search for Shafique Hasan. P.W. 21 Ravi Brat Singh and P.W. 22 Prithvi Nath Singh, a police constable, also stated about search. P.W. 23 Bishwanath Singh, another shopkeeper, stated that he had seen Shafique Hasan sitting at the shop of Ram Lal Singh on 16.3.84. It may not be out of place to mention here that although the aforesaid witnesses consistently stated about Shafique Hasan seen sitting at the shop of Ram Lal Singh, Ram Lal Singh examined as P.W. 20 denied this for which he was declared hostile.

Shri Manindra Kishore Singh, learned Counsel for the Appellants, submitted that on the evidence on record only two circumstances can be said to have been proved by the prosecution, that the Appellants and other accused were seen in the market prior to the occurrence and that on pointing out by the Appellants the body of the deceased was recovered. These two circumstances, however, cannot be said to be conclusive of their guilt. In this connection he referred to evidence of P.Ws. 1, 5, 9 and 10 and submitted that none of them claimed to have seen the deceased along with the Appellants and the other accused and, therefore, principle of ''last seen'' cannot be applied in the instant case. He also submitted that, as a matter of fact, there is no conclusive evidence on the point of identification. Inasmuch as the relatives of the deceased were not called to identify the dead body, it cannot be said with certainty that the body or part thereof was that of the deceased Shafique Hasan. Counsel submitted that in a case of circumstantial evidence unless the chain of circumstances is complete and the circumstances are conclusive of the guilt of the accused i.e. wholly consistent with his guilt and inconsistent with the plea of innocence, the accused cannot be convicted.

Shri Lala Kailash Behari Prasad, learned Counsel for the State, submitted that where the deceased is last seen in the company of the accused and the dead body is finally discovered at his or their pointing out the circumstances must be treated as conclusive of the guilt. He submitted that the question as to whether the chain of circumstances is complete or not would depend on the facts of each case. While in one case a few circumstances alone may complete the chain, in another case, the chain may not be complete. The submissions of the counsel for the State, as proposition of law, are undoubtedly well founded, but counsel was not able to show from the evidence of the witnesses about the deceased being last seen in the company of the Appellants. All that the evidence on record suggests is that Shafique Hasan was present in Nabinagar Bazar, to be precise, at the shop of Ram Lal Singh. The evidence suggests the presence of the Appellants and other accused in the same vicinity but there is no virtually evidence to suggest that the Appellants and other accused took away Shafique not to be seen thereafter. A close scrutiny of the evidence of the prosecution witnesses rather reveals several discrepancies about the presence of the Appellants and other accused near the shop of Ram Lal Singh. It is significant that the alleged kidnapping of Shafique was said to be sequel to the arrest of Narendra Singh by the former but Narendra Singh was acquitted by the trial court on the same-self evidence. Along with Narendra Singh, other accused whom were along with the Appellants at the Bazar have also been acquitted.

It is true that there is reliable evidence on the point of discovery of the dead body-at the first instance the trunk part thereof and later the head-on the pointing out by the Appellants but as fairly submitted by the counsel for the State this may at best constitute an offence u/s 201 of the Penal Code. Counsel for the. State fairly stated that where the prosecution fails to prove that the deceased was last seen in the company of the accused, it may be difficult to convict them for the offence of murder. The evidence of the prosecution witnesses at best creates strong doubt about the Appellants and the other accused calling the deceased, taking him away and thereafter perpetrating the crime, but as is often said, suspicion howsoever strong cannot take the place of truth. There being no specific evidence about the deceased being seen in the company of the Appellants and others the mere fact that the dead body was discovered at their pointing out would not be sufficient to convict the Appellants for the offence of murder specially when on the same evidence other accused have been acquitted of the charge.

In the facts and circumstances, (sic) therefore while upholding the conviction and sentence u/s 201 IPC we would acquit them of the charge of murder u/s 302 IPC. Considering that the occurrence took place 18 years ago and one of the Appellant Vinay Singh is in custody, while other Appellants have remained in jail for some time, we are further of the view that the ends of justice would be served by modifying their sentence to the period already undergone by them.

In the result, the appeals are allowed in part, the conviction of the Appellants u/s 302/34 IPC is set aside, their conviction u/s 201 IPC, however, is maintained with modification in the sentence for the period already undergone by them. Appellant Ramdeo Yadav is on bail. He is discharged of the liability of the bail bond. Appellant Vinay Singh is in custody. He is directed to be released forthwith, if not wanted in any other case.