ANIL SINGH Vs. STATE OF BIHAR (NOW JHARKHAND)

JUDGEMENT

(1.) The present appeal has been preferred by the appellant accused because of judgment of conviction and order of sentence dated 29 th June, 1996 passed by the 1 st Additional Sessions Judge, Hazaribagh in Sessions Trial No.409 of 1993 whereby the present appellant accused has been mainly punished for an offence under Section 302 of the India Penal Code for life imprisonment.

(2.) It is the case of the prosecution that on 16 th April, 1993, daughter of PW.5 was missing and they were searching the daughter of PW.5 Mahmood Ali, who is father of the deceased minor girl Shaba Nisha, and ultimately PW.5, who is informant, lodged a First Information Report on 17 th April, 1993. He also received one letter, which is Ext.1, frock of the deceased, envelop of the letter, which is Ext.2. These documents were produced before the police and upon registration of the First Information Report, the accused appellant was arrested, looking to the facts stated in the First Information Report by PW.5, father of the deceased minor girl Shaba Nisha. It is also case of the prosecution that there is also recovery of the dead body of the deceased minor girl Shaba Nisha at the behest of the accused appellant. Prosecution has led evidence of PW.1, PW.2, PW.3 and PW.4 for recovery of the dead body of the deceased minor girl Shaba Nisha and on the basis of these witnesses as well as evidence of the informant PW.5 and the Investigating Officer (PW.6) and also looking to the evidence given by Dr. Ashraf Ahmad Farooquie (PW.8), the trial Court has believed that the offence has been proved beyond reasonable doubt of the murder of deceased minor girl Shaba Nisha which has been committed by the appellant accused and the appellant accused has been convicted for an offence under Section 302 of the Indian Penal Code for life imprisonment by the judgment of conviction and order of sentence both dated 29 th June, 1996 passed by the 1 st Additional Sessions Judge, Hazaribagh in Sessions Trial No.409 of 1993. Hence, the present appeal has been preferred.

(3.) We have heard the learned counsel for the accused appellant who has vehemently submitted that the prosecution has failed to prove the offence beyond reasonable doubt. This aspect of the matter has not been properly appreciated by the learned trial Court and hence, the judgment of conviction and order of sentence passed by the learned trial Court deserves to be quashed and set aside. Moreover, it is submitted by the counsel for the appellant accused that there are major contradictions and improvement in the statements made by the prosecution witnesses. In fact, there is no eyewitness to the incident. PW.1 has not stated before the police that there was recovery of the dead body at the behest of the appellant accused. Counsel for the appellant has taken this Court to the deposition of PW.1 and cross examination of PW.1. There are suggestions in the cross examination for non recovery of the dead body at the behest of the appellant accused and looking to the cross examination of PW.6, who is the Investigating Officer, from paragraphs 13 to 18 in detail, the cross examination has been read over and it is categorically stated before this Court that neither PW.1 nor PW.2 nor PW.3, nor PW.4 has stated in their statement before the police recorded under Section 161 Cr.P.C. that the dead body was recovered because of the statement of the appellant accused. Thus, the most important argument advanced by the learned counsel for the accused appellant about the recovery of the dead body at the behest of the appellant accused is not proved beyond reasonable doubt. It is also submitted by the counsel for the appellant accused that looking to the inquest report, which is Ext.7, in Column No.3, it has been stated that the dead body has been recovered from the back side of the Russian Hostel situated at the city of Hazaribagh, whereas the improved version given by all the prosecution witnesses reveal that the dead body was recovered from the septic tank. Thus, none of the witnesses has stated correct fact before the trial Court and in fact, they were not eyewitness of the recovery of the dead body at all. It is also vehemently submitted by the counsel for the accused appellant that the so called confessional statement of the accused appellant, which is Ext.6, is also not proving the offence beyond all reasonable doubt, because in this statement also, nowhere has been stated by the accused appellant that where the dead body is lying. Moreover, Ext.6 is also not saying about the place of dead body to be recovered because of the statement of the accused appellant. Thus, the most important linkage between the recovery of the dead body and the statement of the accused appellant is missing. Thus, the very basis of conviction by the trial Court is not emerging out of the depositions of the prosecution witnesses and the documents exhibited by the trial Court and, therefore, the judgment of conviction and order of sentence passed by the learned trial Court deserves to be quashed and set aside.