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,
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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
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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
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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
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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-
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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
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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
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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
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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
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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
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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
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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
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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
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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
