SHAMBHU RAM ALIASBIHWENDIWAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THESE three appeals have been heard together as they are directed against the common judgment passed in S.T, No. 563/96 by the 5th Addl. District & Sessions Judge, East Champaran, Motihari. This judgment will govern all of them. Though in all these appeals similar grounds have been taken while dealing with them I will refer to the grounds taken in Cr. Appeal No. 510/2000 filed by Munna Diwan alias Bhuwan Diwan.

(2.) FROM the prosecution case it appears that Neha Kumari aged about 6 (six) years, daughter of the informant -Awadh Kishore Prasad (P.W.12) had gone out at about 2 P.M. on 15.7.1996 for playing. She, however, did not return back to the house. On this P.W. 12 alongwith his father Laxmi Prasad went out in her search but could not find her. On the next day (16.7.1996) at about 3 P.M. Madan Kishore Prasad (P.W. 6) came to the informant (P.W.12) and disclosed him that in the night between 15th/16th July, 1996 at about 11 P.M. while P.W. 6 alongwith Gauri Shanker Prasad (P.W. 4) was going to attend the call of nature they noticed appellant Munna Diwan with a gunny bag on his head. The rest two appellants were also with him. On enquiry they disclosed that they are carrying certain articles. P.Ws. 4 and 6 returned back to their houses and on the following day they had to go outside the village. When on their return they learnt about the missing of the deceased Neha Kumari they came to P.W. 12 and informed him about this incident.

(3.) IN these appeals the appellants have contended that the whole case is based on circumstantial evidence. No body has seen them taking away the deceased nor there is any eye witness on the point of killing of the deceased or disposing of the body. Only taking away a gunny bag on head can hardly go to show that a dead body was being carried in it. It is alleged that the deceased girl was kidnapped from outside the Video Hall in broad day light. This story cannot be believed as it would have certainly attracted the attention of the villagers. The rope alleged to have been used in the strangulation of the deceased has not been identified by P.Ws. So far as the confession is concerned; it is relevant to state here; that soon after the appellant, Munna Diwan was caught, the police also reached there and his confessional statement which was made in presence of the police was neither recorded by the police nor by anybody else, at the time when this statement was made. Independent and competent witnesses have not been examined in this case. There is no material to prove the alleged confessional statement made by the appellant Munna Diwan. On these grounds, amongst others, it has been contended that these appeals be allowed and the appellants be acquitted of the charges framed against them.