SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Binay Das vs The State Of Bihar on 18 April, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (DB) No.637 of 2011

Binay Das, son of late Lakhan Das, resident of village- Bhatoria, P.S.- Nathnagar
(Madhusudanpur), District- Bhagalpur.

…. …. Appellant/s
Versus
The State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Neeraj Kumar @ Sanidh (Amicus Curiae)
For the State : Mr. A.K.Sinha, P.P.

For the Informant : Mr. Indeshwari Prasad Mandal, Advocate.

CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH
and
HONOURABLE MR. JUSTICE ARUN KUMAR
C.A.V. JUDGMENT

(Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH)
Date: 18-04-2017

This appeal is preferred against the judgment of

conviction dated 04.05.2011 and order of sentence, dated

07.05.2011, passed by the learned Additional Sessions Judge-cum-

F.T.C.-I, Bhagalpur in Sessions Trial No. 585 of 2008, whereby the

sole appellant has been convicted under Section 302/34 of the Indian

Penal Code and sentenced to undergo life imprisonment along with

a fine of Rs. 5,000/-.

2. The prosecution case, in brief, as made out in the

fardbeyan of Babu Lal Das (PW-5) of village- Bhatauria, P.S.-

Madhusudanpur, District- Bhagalpur recorded by Sub Inspector,
Patna High Court CR. APP (DB) No.637 of 2011 dt.18-04-2017

2/14

P.N.Tiwari of Madhusudanpur Police Station on 31.10.2007 at

village Bhatauria near Tunia Pokhar at 3:30 P.M, is as follows:

(i) The informant stated that on 31.10.2007 in the

day time, his co-brother Binay Das (husband of wife’s sister) , aged

about 20 years, also resident of the same village- Bhatauria, came to

his house and enticed his 06 years old grandson to accompany. The

accused Binay Das took his grand son to Tunia Pokhar, where he

along with his friend/associate Amit Kumar Das killed him near the

small mango and Tar trees in the eastern-southern corner of the

Pokhar by slitting his neck with the branch (Daffi) of a Tar tree

which has sharp edges. His grandson cried in pain, whereupon

villagers rushed towards him and saw Binay Das and Amit Das

fleeing from the place of occurrence. On hulla of the villagers, the

informant along with his second wife Gango Devi (PW-1) and

daughter-in-law Bisokha Devi (PW-4) and other villagers ran

towards Pokhar, and found his grandson dead, his neck slitted by

some sharp cutting weapon. Blood in large quantity was found on

the ground. They also found blood on the Daffi (Dali) of the Tar

tree, located near the body.

(ii) The occurrence took place as Binay Das had

suspicion that his wife Shabnam Devi had lodged a criminal case

against him with Madhusudanpur Police Station at the behest of
Patna High Court CR. APP (DB) No.637 of 2011 dt.18-04-2017

3/14

informant and his family members. Appellant’s wife Shabnam Devi

happens to be the Mausi of the deceased Makhan Kumar.

3. On the basis of the fardbeyan, the police registered

Madhusudanpur P.S.Case No. 260 of 2007 dated 31.10.2007 under

Section 302/34 of the Indian Penal Code against the appellant and

one Amit Das.

4. The Investigating Officer, during the investigation,

inspected the place of occurrence and also seized the Tar branch

(Daffi) with blood, after severing it from the stem of the tree. The

I.O. took statement of witnesses and obtained the post-mortem

report and finding the case to be true submitted charge sheet under

Section 302/34 of the Indian Penal Code against the appellant and

Amit Das showing the latter as absconder. On receipt of the charge

sheet, the learned Magistrate took cognizance of the offence and

committed the case to the court of sessions for trial. Charge was

framed against the sole appellant under Section 302/34 of the Indian

Penal Code to which he pleaded not guilty and claimed to be tried.

5. The case of the defence, as per the statement recorded

under Section 313 of the Cr.P.C. as well as from the mode of cross-

examination, is one of false implication on account of admitted

enmity with the prosecution side. However, the defence neither

examined any witness nor produced any documentary evidence in
Patna High Court CR. APP (DB) No.637 of 2011 dt.18-04-2017

4/14

support of his case.

6. The trial court, relying upon the evidence of informant

and other eye witnesses, convicted the sole appellant under Section

302/34 of the Indian Penal Code.

7. The prosecution, in order to substantiate its case,

examined 12 witnesses, namely, PW-1 Gango Devi is the second

wife of the informant, PW-2 Janardan Mandal, who was declared

hostile during the trial, PW-3 Ram Deo Das is the hearsay witness,

PW-4, Bisokha Devi is the mother of the deceased Makhan Kumar,

PW-5 Babu Lal Das is the informant and the grandfather of the

deceased, PW-6 Janardan Das is the cousin of the informant, PW-7

Paras Nath Tiwari is the I.O. of the case, PW-8 Jhalo Devi is the

first wife of the informant, PW-9 Chunchun Das is an independent

witness, PW-10 Dinesh Kumar is the hearsay witness, PW-11 Sushil

Das is also a hearsay witness and also witness to the inquest

alongwith the informant Babu Lal Das, and PW-12 Dr. Arun Kumar

Singh who held postmortem on the dead body of the deceased.

8. Out of these 12 witnesses, PW-1 Gango Devi (second

wife of the informant), PW- 4 Bisokha Devi (mother of the

deceased) and PW-5 Babulal Das (informant) and PW-8 Jhalo Devi

(first wife of the informant) all stated that on the day of occurrence

on 31.10.2007 at about 2:00 to 2:30 P.M., the appellant Binay Das
Patna High Court CR. APP (DB) No.637 of 2011 dt.18-04-2017

5/14

along with one Amit Das came to their house and enticed 06 years

old Makhan Kumar (grandson of the informant) to go along with

them for purchasing biscuits from a nearby shop. PW-4 stated that

after some time, she heard hulla that her son has been killed,

whereupon she rushed towards Tunia Pokhar and on the way, she

saw Binay Das and Amit Das fleeing. When she reached Tunia

Pokhar, she found her son dead, lying on the ground having cut

injury on his neck. Lots of blood had fallen on the ground and there

was blood stains on the nearby branch (daffi) of a small Tar tree.

9. PW-5 (the informant) also stated that Shabnam Devi

had filed a criminal case under Section 498A of the Indian Penal

Code against the appellant. In his statement, he has stated that Binay

Das committed the murder of Makhan Das suspecting that his

mother Bisokha Devi has instigated her sister (Shabnam Devi) to

lodge a case against him. PW-6 Janardan Das stated that on

31.10.2007 between 2:00 to 2:30 P.M., he was in his house. He saw

Binay Das taking away Makhan Kumar along with him and Amit

Das was also following him. PW-9 Chunchun Das stated that on the

relevant date and time at about 2:00 P.M., he too saw Binay Das

carrying Makhan Kumar towards Bahiar and one Amit Das was also

coming behind them.

10. PW-12 Dr. Arun Kumar Singh, who held post-

Patna High Court CR. APP (DB) No.637 of 2011 dt.18-04-2017

6/14

mortem on the dead body of the deceased, found cut injuries on the

neck of the deceased caused by sharp cutting weapon.

11. PW-7 Paras Nath Tiwari, Investigating Officer of the

case, stated that he found large quantity of blood near the place of

occurrence, where the deceased was found dead. He also found

blood on the branch of one of the small Tar trees, located near body,

which he severed from the main root and prepared seizure of the

same in presence of the witnesses. On these premises, the

prosecution has tried to establish its case and bring home the charge

against the appellant under Section 302/34 of the Indian Penal code.

12. Mr. Neeraj Kumar @ Sanidh, learned amicus curiae,

appearing on behalf of the appellant, has assailed the impugned

judgment of conviction and order of sentence on more than one

ground. He submits that there is no eye witness to the occurrence

and the case is based on circumstantial evidence. The prosecution

has not been able to establish a complete chain of circumstances to

establish that the appellant has alone committed murder. The

informant (PW-5) and his second wife (PW-1) have given a go-bye

to the prosecution case contained in the FIR.

13. Elaborating his submissions, learned amicus curiae

submits that the informant (PW- 5) in the FIR stated that the

appellant Binay Das came to the house in the day time and took his
Patna High Court CR. APP (DB) No.637 of 2011 dt.18-04-2017

7/14

grand son towards Tunia Pokhar. After some time, on hearing the

cry of the boy, the villagers raised hulla and informed him of the

incident, whereupon he along with his second wife PW-1 and PW-4

(the mother of the deceased) rushed to the place of occurrence. But,

both, PW-5, the informant and his second wife, PW-1 in their

evidence stated otherwise. They stated that the appellant came and

took their grand son on the plea of providing him biscuit from the

nearby shop and when the grand son did not return for an hour, they

made hectic search of him and went to the Tunia Pokhar, along with

the mother of the deceased (PW-4), where they found the child lying

dead having sustained sharp cutting injury on his neck. They also

saw some grass cutters around the place of occurrence. PW-1 even

went to the extent of stating that she saw accused slitting neck of the

deceased with branch of a Tar tree, which is not even the

prosecution case in the FIR. Learned counsel thus submits that the

evidence of PW-1 and PW-5 are not reliable as they have given go-

bye to the prosecution case.

14. The defence would further submit that the

Investigating Officer, in his evidence, stated that on receipt of

information that a boy has been killed, he made a Station Diary

Entry and proceeded towards the place of occurrence. However, the

Station Diary Entry has not been produced by the prosecution. The
Patna High Court CR. APP (DB) No.637 of 2011 dt.18-04-2017

8/14

police did not find any severed Tar branch or stem, lying on the

ground with which the neck of the boy is alleged to have been

slitted.

15. He next submits that the prosecution story that Binay

Das came to the informant’s house and took with him the 06 years

old son of PW-4 in her presence and in presence of the informant,

does not seem probable, as admittedly Binay Das was aggrieved

with the mother of the deceased Makhan Kumar and the informant,

as he had suspicion that she was instrumental in having the case

lodged against him, by his wife. In such hostile situation, one would

not allow Binay Das to take away Makhan along with him.

16. Conversely, Mr. Ashwini Kumar Sinha, learned

counsel appearing on behalf of the State, has supported the

prosecution case. He submits that as many as six prosecution

witnesses i.e., PWs. 1, 4, 5, 6, 8 and 9 have seen the appellant taking

away the deceased boy on the fateful day in the noon at about 2:30

P.M. PWs 4, 5 and 8 have seen the accused persons fleeing from the

place of occurrence after the crime. The witnesses and the I.O.

found blood near the place of occurrence as well as on the branch of

small Tar tree, with the aid of which the neck of the boy was cut as

the edges are sharp.

17. Learned counsel appearing on behalf of the
Patna High Court CR. APP (DB) No.637 of 2011 dt.18-04-2017

9/14

informant, while adopting the argument advanced on behalf of the

State, submits that the appellant Binay Das was a Mausa of the

deceased Makhan Kumar and none thought that he would kill him as

there was no direct conflict between the prosecution side and the

appellant.

18. We have heard learned counsel for the parties. We

find that there is consistent evidence of PW-1, 4, 5 and 8 that on the

relevant time between 2:00 to 2:30 PM on 31.10.2007, the appellant

Binay Das along with Amit Das came in their house and enticed 06

years old boy Makhan Kumar to go along with them. PW-6

Janardan Das and PW-9 Chunchun Das also stated that on

31.10.2007 at about 2:00 P.M., while they were returning from

Bahiar, they saw Binay Das taking away Makhan towards Bahiar

and one Amit Kumar was also following them. PW-4, in her

evidence, stated that only some time after Binay Das had taken away

her son, the villagers raised hulla and informed her and others that

Makhan Kumar has been killed. Upon hearing the news, PW-4

rushed towards the pond and found her son lying dead near a small

Tar tree. Lots of blood had fallen near the place of occurrence and

there was blood on the branch (daffi) of the small Tar tree near the

place where the boy was lying dead. She further stated that she saw

the appellant and others fleeing from the place of occurrence. PW-1
Patna High Court CR. APP (DB) No.637 of 2011 dt.18-04-2017

10/14

Gango Devi, PW-5 Babulal Das (informant) and PW-8 Jhalo Devi,

in their evidence stated that they also saw the appellant fleeing away

from the Bahiar after committing murder of Makhan Kumar. The

police, on receipt of information that a boy has been killed in the

village, recorded a Station Diary entry and straight away proceeded

to the place of occurrence, where he took fardbeyan of PW-5 at 3:30

P.M.

19. It thus appears from the evidence of the witnesses

and the fardbeyan and the evidence of the Investigating Officer that

the boy was done to death within a short span of time being last seen

alive with the appellant Binay Das.

20. It is true that there are some minor discrepancies in

the statement of the PW-1 Gango Devi and the informant Babulal

Das (PW-5) wherein they stated that when the boy did not return for

some time, they began to make a search and in course of which, they

found the boy dead near a Tar tree and also saw the two accused

persons fleeing away. However, the discrepancies are not of such

nature which would affect the root of the prosecution case, as the

witnesses are consistent in their version that they saw the appellant

taking away Makhan Kumar around 2.30 P.M. and seen him fleeing

with his associate after the commission of crime. Even we discard

the evidence of PWs from considerations, still there is nothing in the
Patna High Court CR. APP (DB) No.637 of 2011 dt.18-04-2017

11/14

statements of PWs-1, 4, 5 and 8 to doubt the veracity of the

statement that Binay Das took Makhan Kumar from the house on the

pretext of providing him some biscuit from the nearby shop. PW-6

also saw the appellant and Amit Das taking along with them

Makhan Kumar at 2:00 P.M. on fateful day.

21. Furthermore, the appellant argued that no one would

leave his small child to go with a person with whom there is enmity.

We would broadly and generally agree with the submissions

advanced by learned counsel for the appellant. However, in the

instant case, situation is different. The appellant is the own Mausa of

the deceased Makhan Kumar. There was no litigation between the

prosecution side and the appellant. As such in such circumstances,

one may not apprehend that the appellant, who is the own Mausa,

would kill the deceased on mere suspicion that his mother may have

been instrumental in getting the case filed by the appellant’s wife.

22. Thus, from the scrutiny of the evidence adduced on

behalf of the prosecution side, the following circumstances emerge

against the appellant: (a) he was last seen with the deceased on

31.10.2007 between 2:00 to 2:30 PM by as many as five witnesses,

PW-4, PW-5, PW-6, PW-8 and PW-9, (b) soon thereafter, within a

short span of time, the boy was found dead at the pond near a small

Tar tree, (c) blood was found at the place of occurrence and on the
Patna High Court CR. APP (DB) No.637 of 2011 dt.18-04-2017

12/14

branch of Tar tree by which the neck of the deceased is alleged to

have been slitted, (d) the appellant was found fleeing away by PW-

4, PW-5 and PW-8 from the place of occurrence soon after the

murder of the child (e) the police having received information

immediately came to the place of occurrence and recorded the

fardbeyan of the informant at 3:30 P.M. at the place of occurrence.

23. It thus appears that the boy was killed within a very

short time of being taken by the appellant Binay Das. It is true that

no conviction can be sustained on the theory of last seen alone. In

the instant case, as noticed above, there are other circumstances

other than one of “last seen”. Furthermore, it is well settled that the

theory of last seen would have no application, where the time-gap

between the point of time when the accused and the deceased were

seen last alive and when the deceased is found dead, is so small, that

possibility of any person other than the accused being the author of

the crime becomes impossible. The Hon’ble Apex Court in the case

of Bodhraj @ Bodha and Others vs. State of Jammu and Kashmir

reported in (2002) 8 SCC 45, observed:

“31. The last seen theory comes into play where the time-gap
between the point of time when the accused and the deceased were
seen last alive and when the deceased is found dead is so small
that possibility of any person other than the accused being the
author of the crime becomes impossible. It would be difficult in
some cases to positively establish that the deceased was last seen
Patna High Court CR. APP (DB) No.637 of 2011 dt.18-04-2017

13/14

with the accused when there is a long gap and possibility of other
persons coming in between exists. In the absence of any other
positive evidence to conclude that the accused and the deceased
were last seen together, it would be hazardous to come to a
conclusion of guilt in those cases…..”

24. In the instant case, there is very small time-lag much

less than an hour between the points of time, the accused took the

deceased Makhan Kumar along with him and his death. The

appellant has not made any suggestion to the prosecution witnesses

much less produced any evidence that the deceased was taken by

someone else and he was murdered after he had left the deceased

mid-way. Besides this, the police has found blood near the place of

occurrence and also on the branch of the Tar tree, which

corroborates the place of occurrence and manner of occurrence.

25. The case of the appellant that the police did not find

any Tar branch severed from its roots near the place of occurrence

would be of no help to him, as it is not the prosecution case that any

branch, which was severed from its root, was used in cutting the

neck of the deceased.

26. Situated thus and in view of foregoing discussions,

we otherwise also find that the prosecution has been able to establish

chain of circumstances consistent with the guilt of the appellant. We

accordingly affirm the judgment of conviction, dated 04.05.2011
Patna High Court CR. APP (DB) No.637 of 2011 dt.18-04-2017

14/14

and order of sentence, dated 07.05.2011, passed by the trial court

convicting the appellant under Section 302/34 of the Indian Penal

Code and sentencing him to life imprisonment. However, the fine

amount is reduced to Rs. 2500/- and in default of payment, he would

undergo S.I. for one month. The appellant who is in custody would

remain so to serve the balance period of sentence.

27. Accordingly, the appeal is dismissed.

(Samarendra Pratap Singh, J)

(Arun Kumar, J)

Sujit/-

AFR/NAFR AFR
CAV DATE 24.03.2017
Uploading Date 18.04.2017
Transmission
Date

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation