Elbin Ekka And Ors. Vs State of Bihar

1. The present appeal has been filed against the judgment and order of sentence dated 28.04.1997 passed by the learned Sessions Judge, Gumla in S.T. No.45 of 1996 arising out of Palkot P.S. Case No.50 of 1995 corresponding to G.R. Case No.626 of 1995, whereby and whereunder, the appellants, namely, Elbin Ekka, Sushila Ekka and Sanjay Ekka, have been convicted under Sections 302 and 109 of the Indian Penal Code and directed to undergone for rigorous imprisonment for life. Further, they have been convicted under Sections 201 of the Indian Penal Code and directed to undergo for rigorous imprisonment for three years.

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Factual Matrix

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2. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper and refer the background of institution of prosecution case.

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3. The prosecution story in brief as per the allegation made in the First Information Report reads as under:-

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“According to the prosecution case as given in the First Information Report (F.I.R.), in short, is that the daughter of the informant Bhinsaria Kharian was married with one Faguwa Kharia of village Jhikrma Jitiyatoli, but her relation was not harmonious with her inlaws and she came back to her father's place. She developed love affair with one Anil Ekka. On 13.5.95 at 12 noon Anil Ekka and Dhidhu Kharia forcibly on the point of Chura had taken away Bhinsari Kharian to their house. The informant went alongwith his wife went to the house of Anil Ekka and there he asked about the same, where-upon he was threatened by the accused persons. On 16.5.95 the dead body of

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Bhinsari Kharian was found in a well and the dead body was taken out from the well and for that a U.D. Case No. 6/95 was instituted.”

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4. On 29.08.1995 a complaint petition was filed in the court of the Chief Judicial Magistrate, Gumla on the basis of which Complaint Case No.106 of 1995 was registered. The Complaint petition was forwarded to the Officer In-Charge, Palkot P.S. for instituting a case and investigating the same. This led to Palkot P.S. Case No.50 of 1995 under Sections 302, 341, 342, 120-B/34 IPC. After completing investigation, the police submitted charge-sheet dated 18.12.1995 against six persons including the appellants and the learned trial court took cognizance in the case and committed the case to the court of Sessions where charge has been framed against the accused persons under Sections 201, 302/34, 109 of the Indian Penal Code and the trial has accordingly been commenced to which the accused persons pleaded not guilty and claimed to be tried.

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5. The prosecution has examined altogether 21 witnesses including the Informant, the Doctor and the Investigating Officer. Three documents have been exhibited i.e. the F.I.R., the Post Mortem report, and copy of the Inquest Report.

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The reference of the testimonial of the witnesses are also required to be recorded herein:-

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P.W.-1, Somi Khariain, who is mother of the deceased.

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P.W.-2, Sushila Khariain @ Dhongi who is a co-villager. She is a girl aged about ten years.

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P.W.3, Matha Kharia, who is father of P.W.2.

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P.W.4, Deo Prasad Sahu, who is a cultivator.

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P.W.5, Sibri Khariain, who is the cousin sister of the deceased.

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P.W.6, Pyare Sahu, who is the brother of P.W.4.

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P.W.7, Puni Kumari, who is the daughter of P.W.1.

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P.W.8, Sanjay Kharia, who is the son of P.W.1

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P.W.9, Samundri Devi, who is the wife of P.W.6.

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P.W.10, Geeta Devi (Cultivator)

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P.W.11, Jabi Loharin, who is the co-villager.

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P.W.12, Kuer Lohra, who is the husband of P.W.11.

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P.W.13, Deepak Sahu (student), who is the son of P.W.6.

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P.W.14, Sushma Kumari (student), who is the daughter of P.W.6.

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P.W.15, Anita Barla (Student)

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P.W.16, Joakim Kerketta, who is the cultivator.

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P.W.17, Budhdeo Kharia, who is the cultivator.

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P.W.18, Awadhesh Singh

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P.W.19, Jama Kharia, who is the husband of P.W.1.

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P.W.20, Gupteshwar Singh, who is the Investigating Officer of this case.

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P.W.21, Dr. Angraj Subhash Chandra, who is the Doctor.

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6. The trial Court, after recording the evidence of witnesses, examination-inchief and cross-examination, recorded the statement of the accused persons, found the charge levelled against the appellants proved beyond all reasonable doubts. Accordingly, the appellants have been guilty and convicted for the offence punishable under Sections 201 and 302/109 of the Indian Penal Code.

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Submission of the learned counsel for the appellants:

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7. Grounds have been taken in assailing the impugned judgment on the behalf of the appellants is that:-

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(i) It is a case where there is no evidence has been collected by the prosecution to establish the charge of Section 109 of IPC and in absence thereof by taking aid of Section 109 of the Indian Penal Code, the appellant has been convicted under Section 302 of IPC.

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(ii) It has been contended that even the learned trial court has not found any substantive evidence to connect the culpability said to be committed by abetting to commit murder of the deceased to Dhidhu Kharia and Anil Ekka, the appellants, in Criminal Appeal (D.B.) No.111 of 1997(R) who have been convicted under Sections 302/34 IPC.

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(iii) Further, it has been contended that the specific allegation has been attributed against the Dhidhu Kharia and Anil Ekka, the appellants of criminal appeal No.111 of 1997 (R) but there is no evidence at all to connect the culpability said to be committed by abetting to commit murder of the deceased.

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(iv) The learned trial court has passed the judgment of conviction presuming to act as an abettor in commission of crime merely on the ground that the appellants were present in the house.

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(v) Further, the ground has been taken that even the place of occurrence of commission of crime of murder is not established, since, as has been deposed by the witnesses that Dhidhu Kharia and Anil Ekka, the appellants of Cr. Appeal No.111 of 1997(R) had dragged the deceased

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2025:JHHC:18060-DB to his house but the dead body was found in a well which is at the distance of 50 yards from the house.

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(vi) The ground has also been taken that on recovery of the dead body from the well, U.D. case was instituted being U.D. Case No. 06 of 1995 and thereafter, after a lapse of more than 03 months, an F.I.R. has been instituted being Palkot P.S. Case No.50 of 1995 which also shows the falsity of the prosecution version so far as the present appeals are concerned.

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(vii) The ground has been taken, if the testimony of all the witnesses will be taken into consideration together, none of them has referred the name of these appellants participating in commission of crime.

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8. Learned counsel based upon the aforesaid grounds has submitted that it is, therefore, a fit case where the impugned judgment of conviction and order of sentence has been passed without evidence. Since it is a case of no evidence and as such the same is fit to be quashed and set aside.

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Submission of the learned Special Public Prosecutor for the State:

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9. Per contra , Mr. Sanjay Kumar Srivastava, learned counsel appearing for the State has supported the impugned judgment on the following grounds:-

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(i) The testimony of all the witnesses, if, is taken into consideration together then it would be evident that the complicity of the evidence shall be found to be proved and on consideration of the aforesaid fact, the judgment of conviction has been passed so far as the present appellants are concerned under Sections 302/109 and 201 of IPC, hence, the same cannot be said to be an error.

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Analysis

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10. We have heard learned counsel for the parties and gone through the findings recorded by the trial court judge in the impugned judgment and also the material available in the trial court record including the testimony of the witnesses and other material exhibits. This Court on consideration of the rival submission made on behalf of the parties is required to consider as to whether the prosecution has been able to make out a case said to be proved beyond all reasonable doubt on which the appellants have been convicted under Sections 302 and 109 of IPC but this Court, before considering the aforesaid issue, needs to look into the background of institution of

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2025:JHHC:18060-DB the F.I.R. which was instituted on the basis of the statement made by the P.W.-19, the informant (father of the deceased).

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11. The Investigating Officer needs to refer herein that the F.I.R. was instituted on 06.09.1995 while the date of occurrence is between the period from 13.05.1995 to 16.05.1995, which also needs to refer herein that on account of the occurrence took place in between the period from 13.05.1995 to 16.05.1995 and a U.D. case was registered being U.D. Case No.06 of 1995, and thereafter, a lapse of more than 03 months, the F.I.R. was instituted. There is no explanation of institution of F.I.R. after lapse of more than 03 months.

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It further needs to refer herein that the two accused persons, convicts, namely, Dhidhu Kharia and Anil Ekka had been convicted for the offence under Sections 302/34 of IPC who had preferred a criminal appeal being Criminal Appeal (D.B.) No.111 of 1997 (R). The said appeal had been reported to be disposed of on the ground of death of both the convicts, namely, Dhidhu Kharia and Anil Ekka vide order dated 02.05.2019.

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12. It is evident from the testimony of the witnesses to which we have gone through minutely in order to assess the culpability said to be committed by the appellants of the present appeal.

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13. We have also considered the element of an abettor as per the definition provided under Section 107 of IPC so as to come to the conclusion of the culpability said to be committed by these three appellants as an abettor. But before that the definition of the abettor as provided under Section 107 of IPC needs to be referred herein which reads as under:-

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“ Section-107. Abetment of a thing.— A person abets the doing

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of a thing, who—

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First.— Instigates any person to do that thing; or

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Secondly.— Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

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Thirdly.— Intentionally aids, by any act or illegal omission, the doing of that thing.

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14. It is evident from the definition of the abatement which means that to instigate any person to do that thing; or engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or intentionally aids, by any act or illegal omission, the doing of that thing, meaning thereby the

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2025:JHHC:18060-DB involvement of a person is required to be there as an instigator or by engaging himself with one or more other person in any type of conspiracy or giving aid intentionally for doing of a particular thing or to act as a facilitator in commission of crime.

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15. This Court has further thought it proper to refer the testimony of all the witnesses in order to form our opinion as to whether these appellants can be said to be facilitator in commission of crime so as to point to the in parameter of Section 107 of IPC.

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P.W.-1, Somi Khariain , who is mother of the deceased and had deposed that the incident took place about 1 and ½ years ago on Saturday at around 12 noon. She further deposed that Dhongi Kumari informed that her daughter Bhinsari was forcibly taken away by Dhidhu Khariya and Anil Ekka (also known as Suresh). Then she along with her husband went to Anil’s house where they saw Anil, Elvin, Dhidhu and others. When they questioned them, Anil threatened them saying, "Run away or we will cut you into pieces. " Out of fear, they returned home and informed the villagers, but no one helped.

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On Monday or Tuesday, Jabi Mundian told that there was a dead body in the well. When they went there, she found it was her daughter’s body. She had injuries on her eyes and armpits, her teeth were broken, and blood was coming from her ears. My daughter was married to Faguwa of Jeetiya Toli, but she had been living with us for the last 1 and ½ years. She was in love with Anil Ekka. She recognize the accused — Mansiddh, Elvin, Dhidhu, Anil, and Sanjay in the court.

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In Cross-Examination , she deposed that her daughter Bhinsari told her that she loved Anil who was already married person having two children. Anil’s house is about 200-250 yards from her house and there were four or five houses in between. When she along with her husband went to Anil’s house, no one from the village was there. She admitted that she did not inform any villagers about Anil taking her daughter.

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P.W.-2, Sushila Khariain @ Dhongi who is a co-villager. She is a girl aged about ten years. She has deposed that about 1 and ½ years ago on Saturday at lunchtime, She saw Sukha and Dhidhu dragging Bhinsari to their home. She informed Bhinsari’s parents, Jama Khadiya and Somi Khadiyain. She recognized Sukha and Dhidhu. She has also deposed that the Investigating Officer had never inquired her.

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P.W.3, Matha Kharia , who is father of P.W.2 deposed that the incident happened about 1 and ½ years ago on Saturday around lunchtime. He was extracting resin (Laah) from a ber tree in his field when his daughter Sushila told him that Anil

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and Dhidhu had dragged Bhinsari away. Sushila also said she had informed Jama and his wife about the incident.

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In the cross-examination, he deposed that he is the uncle of Bhinsari but he did not go there after hearing about the incident from his daughter. He also deposed where he was extracting resin (Laah) is 1 km in distance from Anil’s house.

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P.W.4, Deo Prasad Sahu , who is a cultivator deposed that about 1½ years ago on a Saturday around 12:30 pm, Anil came to my house threatening his wife, accusing her of hiding Bhinsari and showing a sickle. He later found Bhinsari near a karanj tree and dragged her home with Dhidhu pushing her. Bhinsari’s parents went to Anil’s house to bring her back, but Anil threatened them. On Tuesday, at a village meeting, Javi Lohra’s wife informed that Elvin refused to give a water pipe because a dead body was in his well. He further deposed that he saw injuries on the body including a missing right eye, swollen neck and lips, bleeding mouth, and wounds on her head. He recognized Anil and Dhidhu.

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In Cross-Examination , he stated that he owned the 1.60-acre Mahuatand land, bought from Akhju Sahu on 23.9.39 and the accused falsely changed land records, removing my father’s name and adding theirs. He gave my police statement after 15. When Anil came to his house, his wife, mother-in-law, and niece were present. They told about Anil’s threats to Kuar Lohra, whose house is 1 km away and other villager.

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P.W.5, Sibri Khariain , only deposed that she is the cousin sister of the deceased.

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P.W.6, Pyare Sahu , who is the brother of P.W.4 deposed the incident held about 1½ years ago on a Saturday in Jeth. My wife, brother and daughter told me that Dhidhu and Suresh had dragged Bhinsari to Sukha’s house. Jama Khadiya and his wife tried to bring her back but were threatened by Sukha. On Tuesday, Bhinsari’s body was found in Sukha’s well with multiple injuries indicating murder. When the Jamadar arrived, despite evidence of violence, he filed a suicide report instead of a murder case.

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In cross-examination , he stated that two to three months after Tuesday, the police took his statement again, at that time no villagers were present. Dev Prasad is his brother. When asked about disputes over the Mahuatad land with the accused, he admitted there were some minor conflicts. On the day the Jamadar arrived, 50–100 villagers, including Jama and he, were present. He further stated that he had not given any false testimony regarding the Mahuatad land.

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P.W.7, Puni Kumari , who is the daughter of P.W.1 and had deposed that the incident happened two years ago on a Saturday during summer around 12 noon. She was Page | 7 Cri. App. (D.B.) No.92 of 1997(R)

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in Class 5 and returning home from school when she saw Anil dragging her sister Bhinsariya, while Dhidhu was pushing her. Both were taking her toward Anil’s house. She recognized Anil and Dheedhu in the court.

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P.W.8, Sanjay Kharia , who is the son of P.W.1 and had deposed that about 12 years ago in the month of Jeth, on a Saturday around 12 noon, he was going to bathe in the river and when he saw his sister Bhinsari near a karanj tree being dragged by Anil and Dhidhu pushing her from behind. He further stated that Anil visited their house and had taken Bhinsari as his wife. After that Saturday, she never returned home. On Tuesday, her body was found in Anil’s well. He saw the body—it had a black mark near the eye, blood from the nose, swollen lips, and a black mark on the neck. He recognized both Anil and Dhidhu in the court.

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In cross-examination, he stated that Anil’s house is about one kilometer from his. He went to take bath after seeing Bhinsari being taken away and returned around 12:00. His parents did not search for Bhinsari afterward. He didn’t remember how long after the incident, the police took his statement.

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P.W.9, Samundri Devi , who is the wife of P.W.6 and had deposed that about 1½ years ago, on a Saturday in the month of Jeth around 11 a.m., she was at her hotel with her sister-in-law Geeta Devi when Bhinsari came. Around noon, Anil (alias Sukka) arrived, and Bhinsari hid behind a karanj tree. Anil accused us of hiding her and threatened us with a sickle. Some schoolchildren told him Bhinsari was hidings behind the tree. Anil then dragged her toward his house while Dhidhu pushing her from behind. On Tuesday, my husband told me Bhinsari’s body was found in Anil’s well. She recognized Anil and Sukka in the court.

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In cross-examination, She said that she couldn’t name the children or tell the exact distance between the tree and Anil’s house. She didn’t inform the village about what she saw. She denied that she gave false testimony due to a land dispute with Anil. P.W.10, Geeta Devi (Cultivator) deposed that she had been given notice to testify.

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P.W.11, Jabi Loharin , who is the co-villager had deposed that about two years ago, on Tuesday morning in the month of Jeth, she went to Alvin Ekka’s house to get her suction pipe used for drawing water. He refused to return it, saying there was a dead body in his well. Then, she returned home and informed her husband and Jama Khadia, who were present there. She did not know whose body it was, and she had no further information about the incident.

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P.W.12, Kunwar Lohra , who is the husband of P.W.11. and had deposed that around 1 year and 6–7 months ago, on Tuesday morning in the month of Jeth, he was at home when Jama Khadia came and said that Anil had taken his daughter, and a village meeting (Panchayat) needed to be held, and he was also asked to be present.

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At that time, my wife, Jabi Lohrain, had gone to Alvin Ekka’s house to bring back the suction pump. She returned without it, and she told him that someone had drowned in his well and asked to leave the pipe for now.

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Later, he came to know that the body recovered from the well was that of Bhinsari Khadiyain, Jama Khadia’s daughter.

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In the cross-examination, he stated that the police (Daroga) never recorded his statement and today, for the first time, he was stating this in the court.

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P.W.13, Deepak Sahu (student) , who is the son of P.W.6 and had deposed that about 1½ years ago, on Saturday around 12 noon, he was returning home from school along with Anita and Sushma. He saw Sukka pulling Bhinsari and Dheedhu pushing her. Sukka was taking Bhinsari to his house. He also deposed in his cross examination that as a witness, he can identify Sukka and Dheedhu in court and he had never shared this incident with anyone in the village before; he was stating it for the first time today in court.

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P.W.14, Sushma Kumari (student) , who is the daughter of P.W.1 and had deposed that she received a summons to testify as a witness.

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P.W.15, Anita Barla (Student) deposed that she had received summon to be testified as a witness.

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P.W.16, Joakim Kerketta , is a cultivator who had deposed that the incident took place over a year ago, on a Tuesday morning during the month of Dhoop, around 8 to 10 AM. He was at home when a boy named Chullu came and informed him that Bhinsari’s father was calling him because Bhinsari’s body had been found in Alvin and others’ well. He went to Bhinsari’s father Jama’s house. When he asked what had happened, Jama told me that on Saturday, Anil and Dheedhu had forcibly taken Bhinsari to their house. He asked him why he didn’t stop them. Jama said that he and his wife went to Anil’s house, but Anil threatened them with a knife (bhujali), so they returned home in fear. Later, He saw Gajnand Padwe, the Jamadar from Palkot, arriving in a vehicle with Anil. The Jamadar left Anil behind and came directly towards me and Jama. Bhinsari’s body was recovered from the well. There were visible injuries below both eyes and on the neck. Her left eye was gouged out. There was mud on the left side of her ribs, and some blood was oozing out from her nose. The well had water in it.

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2025:JHHC:18060-DB During cross examination he has deposed that about one and a half to two months after seeing the dead body, the police officer (Daroga) recorded his statement at the police station. During that 1½ to 2-month period, I did not tell this information to anyone.

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Further, deposed that the boy named Chullu, who informed him about the body, must be around 10 years old and as far as he know. To my knowledge, the Daroga did not question Chullu. In is statement to the Daroga, he had mentioned that he saw Anil and Gajnanand Padwe getting off a vehicle together. He met Jama in front of his house.

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He further stated in the cross-examination that Anil’s mother became acting Mukhiya (village head) after the death of the previous Mukhiya and Up-Mukhiya . We entrusted her with the responsibility of running the panchayat about 4–6 years ago. He do not know Anil’s elder uncle (Poras Ekka). However, he had taken ₹2400 from one of Anil’s uncles to supply wood. He took wood worth ₹1000, and ₹1400 is still pending with him. This transaction took place about 5 years ago and he did not know the name of the uncle.

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P.W.17, Budhdeo Kharia , who is the cultivator and had only deposed that he received a summons to testify as a witness.

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P.W.18, Awadhesh Singh only deposed that he has no enmity with Jama

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Khadiya.

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P.W.19, Jama Kharia , who is the husband of P.W.1 and had deposed that: ( a) Incident Summary

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Approximately 1 year and 7 months ago, on a Saturday in the month of Jeth, he was at home when Sushila alias Dhogi came and informed him that Dhidhu and Anil were dragging my daughter Bhinsari away. His wife and he immediately went to Anil Ekka’s house, where they saw them forcefully pulling Bhinsari inside.

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When he asked Anil why he brought her by force, he came out first with a stick and then with an axe (tangi), threatening us and saying, “Who called you here? Leave or I will kill you.” Alvin, his wife, and Sanjay took the axe and stick away from Anil. Fearing for our safety, we returned home. Anil warned us not to go to the police station, or we would be killed.

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(b) Information Shared with the Village

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He informed other villagers about the incident. They advised waiting a day or two before holding a panchayati (village council). On Tuesday morning, he went around informing villagers and invited them to the council. While at Kuwar Lohra’s house, his wife Jabi Lohrain, who had gone to Anil’s house to collect a suction pump, returned and told us that Alvin said he would not give the pump as a woman’s dead body was in his well. Dev Prasad was also present. Hearing this, we returned to our homes.

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(c) Discovery of the Body

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He further deposed that, later, he along with his wife and a few villagers went to Alvin’s well and saw the body inside—it was Bhinsari’s. Around noon that day, the police arrived along with a constable, chowkidar, and Anil. After documentation, they recovered Bhinsari’s body.

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The body had the following injuries:

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Left eye gouged out

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Two front lower teeth broken

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Swollen lips

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Black marks under both eyes

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Injury at the back of the neck and swelling

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Scrape marks and torn skin at the front of the neck

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Blood oozing from the nose and mouth

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(d) Interaction with Police and Jamadar

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He deposed that he informed the Jamadar (police officer) of everything he had seen on Saturday and the injuries on Tuesday. Other witnesses also told him the same. However, whatever the officer wrote did not read out to him and said the case had been registered but did not take action against any accused.

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After this, villagers submitted a written complaint to Ranchi as no action was taken. Then he filed a case in Gumla three months after the incident. P.W.20, Gupteshwar Singh , who is the Investigating Officer of this case and had deposed that On 6.9.1995, he was the Officer-in-Charge at Palkot Police Station. That day, based on Complaint No. 106/95 from the Court of the Chief Judicial Magistrate (CJM), Gumla, Palkot P.S. Case No. 50/95 was registered under IPC Sections 302/341/342/120B/34. This was the formal FIR written by W.C. Asgar Ali, which bears his signature (Exhibit 1). He took up the investigation himself. Before this, a U.D. (Unnatural Death) Case No. 6/95 dated 16.5.95 was registered based on a report

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2025:JHHC:18060-DB by S.I. Gajanand Parwe, who had concluded the death was suicide. The inquest and postmortem report were part of the case diary.

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He inspected three main locations:

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(a) Near a karanj tree in Semra village, where Bhinsari was last seen being taken by Anil Ekka and Dhidhu Khadiya.

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(b) Anil Ekka’s house, where she was allegedly held.

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(c) A well about 65 yards behind Anil’s house, where her body was found. The well is isolated, about 22 feet deep with 10 feet of water, and surrounded by Anil’s land.

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He further deposed that he recorded witness statements and arrested the accused. He later submitted the charge-sheet accordingly. In the corss-examination, he stated that he did not attach the original post-mortem and inquest report from the U.D. Case record to his case diary, nor was he instructed too. Further, he denied that these documents were removed to protect the accused.

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In cross-examination , he further stated that he began investigation on the same day. He received the FIR from the court. He inspected the scene in presence of the complainant Dev Prasad Sahu and other witnesses. Witness Joaquim Kerketta did not mention seeing Anil and Jagtanand Parwe arriving in a vehicle. He recorded most statements at witnesses' home. He denied that he did not investigate or that he colluded with the complainant to file a false charge sheet.

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P.W.21, Dr. Angraj Subhash Chandra , who is the Doctor and had deposed that on 17.5.95 also he was posted as CAS at Sadar Hospital Gumla. On that date at 10.00 A.M. He had held antopsy on the dead body of Ms Bhinsari Devi D/o Jama Kharia of village Semra Bhelwatoli P.S. Palkot Distt. Gumla a tribal female aged about 20 years brought and identified by Malha Kharia. I found the following:-

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A young adult female dead body with eyes closed and fists semi closed, mud stains present all over the body blisters present over abdomen & thigh soddening of head & feet were present, tongue protruded and whole body was swollen.

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Death was caused by asphyxia due to drowning

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Q.- was there water in the stomach.

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A.- Stomach was empty.

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Since elapsed time death 72 to 96 hours approximately. This P.M. report is in his hand & bears his signature (Ext. 3).

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To Court:-

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Q.- If a living person will fall in a well and will die due to asphyxia caused by drowning water will be found in the abdomen.

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A.- Yes. Since the decomposition process had started and enough time had elapsed water could not be found in the abdomen. But the lungs were swollen & water logged which showed that the patient was alive when she fell in water.

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Q. You have said that tongue was protruded. Could the death not be caused by throttling. A.- It could be but when decomposition process will start, tongue will come out. Due to presence, gas formateas inside the body.

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Q. Tongue was protruded- did you try to as certain of death was caused due to throttling. A. I tried to find out ligature mark around the neck but the skin was peelup off. I could not find it.

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Cross examination :-

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The body was in the process of decomposition.

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16. The foremost testimony is of the informant, P.W.-19, father of the deceased. It is evident from his testimony and by taking the same together in entirety that he has specifically deposed by taking the name of Anil Ekka who was dragging the deceased and Dhidhu Kharia was pushing behind the back of the deceased.

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17. P.W-19 has thoroughly been examined and also cross-examined but we have not found any reference of name of these witnesses rather it has been deposed by the P.W.-19 that when he has reached to the house then the Anil Ekka, one of the appellants in Criminal Appeal (D.B.) No.111 of 1997(R), having Tangi and Lathi in his hand had threatened him to go from his house upon this the family members, without disclosing the name of the said family members in the testimony, has taken the Tangi and Lathi from the hand of Anil Ekka save and except, no complicity has been said by the P.W.-19 about these appellants for the purpose of acting as a facilitator in commission of the crime.

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18. We have also considered the testimony of the Investigating Officer who has been examined as P.W.-20 who has also not disclosed the name of these appellants. Even it has not been deposed by him in course of the investigation i.e. at the time of recording statement under Section 161 Cr.P.C., that the name of these appellants have been disclosed by any of the witnesses as a facilitator in commission of the crime. The testimony of other witnesses has also come out with the name of these appellants to establish the element of facilitator. The Doctor has also given opinion about the cause of death. But the question is that who has committed the crime that is the foremost issue which has to be established by the prosecution.

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19. Since, the specific allegation as per the testimony of P.W.-19 is against Anil Ekka and Dhidhu Kharia, the appellants in Criminal Appeal (D.B.) No.111 of 1997(R), but we are not dealing with the appeals of Anil Ekka and Dhidhu Kharia, rather, their appeals stands abated vide order dated 02.05.2019.

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20. The question of complicity as has been shown by the prosecution against these appellants is the question which is being considered in the instant appeal. But even to attract the ingredients of Section 302 of IPC with the aid of Section 109 of IPC, the element of abettor as per the definition of an abettor under Section 107 of IPC, is required to be there, and the same must be on the basis of given testimony of the witnesses. But we have not found the name of the witnesses in the testimony of all the witnesses who are 21 in numbers.

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Therefore, the aforesaid fact is admitted even from the judgment passed by the learned trial court wherein the learned trial court has also not found any material against the appellants rather the learned trial court has presumed the act of these appellants as an abettor merely on the ground that they were present at the place of occurrence which would be evident from the finding so recorded by the learned trial court, “since the persons who has committed the offence of murder of Bhinsari Khariain and the persons who abetted the commission of crime of murder of Bhinsari Khariain, are all own relatives and they were present in the house on 13.05.1995 when the murder of Bhinsari Khariain took place, it will be deemed that the abettor also participated in the commission of murder of Bhinsari Khariain and as such there can be no distinction between the actual killer of Bhinsari Khariain and those who have abetted the commission of murder of Bhinsari Khariain and they are all liable to the same punishment.

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But, the aforesaid finding recorded, in our considered view cannot be said to stand in the eyes of law reason being that merely on the basis of presence of the relatives in the house, the culpability cannot be compared with the actual culprit if who has been found to be involved in commission of the crime, rather, the specific attributability is to be shown even in case to prove the element of an abettor as has been defined under Section 107 of IPC.

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21. The law has been settled that nobody can be punished merely on the basis of surmises and conjectures, rather, conviction is to be based always upon the guilt if proved beyond all reasonable doubts.

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22. The Hon'ble Apex Court in catena of decision has propounded the proposition that in the criminal trial, there cannot be any conviction if the charge is not being Page | 14 Cri. App. (D.B.) No.92 of 1997(R)

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2025:JHHC:18060-DB proved beyond all reasonable doubts, as has been held in the case of Rang Bahadur Singh & Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454 , wherein, at paragraph22, it has been held as under:-

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"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

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23. Likewise, the Hon'ble Apex Court in the case of Krishnegowda & Ors. Vrs. State of Karnataka , reported in (2017) 13 SCC 98 , has held at paragraph-26 as under:-

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"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."

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24. It requires to refer herein that the principle of 'benefit of doubt' belongs exclusively to criminal jurisprudence. The pristine doctrine of 'benefit of doubt' can be invoked when there is reasonable doubt regarding the guilt of the accused, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana Vrs. Bhagirath & Ors., reported in (1999) 5 SCC 96 , wherein, it has been held at paragraph-7 as under:

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"7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath

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2025:JHHC:18060-DB particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution". Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."

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25. Likewise, the Hon'ble Apex Court in the case of Krishnegowda v. State of Karnataka (Supra) at paragraph- 32 and 33 has held as under:-

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"32. --- --- The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.

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33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice.--- -

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26. In view of the aforesaid discussion made by this Court as hereinabove and based upon the same, we are of the view that the impugned judgment needs interference, accordingly, the judgment and order of sentence dated 28.04.1997 passed by the learned Sessions Judge, Gumla in S.T. No.45 of 1996 arising out of Palkot P.S. Case No.50 of 1995 corresponding to G.R. Case No.626 of 1995, is hereby quashed and set aside.

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27. The appellants are discharged from the criminal liability.

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28. The present appeal stands allowed and disposed of.

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(Sujit Narayan Prasad, J.)