Allowed

Ganesh Sah and Ors. v. The State Of Bihar

Patna HC19 Feb 2014CR. APP (DB)/596/2013

Case brief

AI extract

What is this about?

In a criminal appeal, the High Court dissected circumstantial evidence regarding a murder prosecution. Rejecting uncorroborated witness testimonies as untrustworthy and finding the chain of evidence incomplete, the bench acquitted the appellants of charges under Sections 302/34 and 201/34 IPC.

What did the court decide?

The impugned judgment of conviction and order of sentence are set aside. The accused-appellants are acquitted of all charges against them.

Ganesh Sah and Ors. Vs The State Of Bihar — Murder and Culpable Homicide | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (DB) No.596 of 2013

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(Against the judgment of conviction, dated 29.05.2013, and order of sentence, dated 31.05.2013, passed by Shri Om Prakash-IV, Additional District & Sessions Judge-II, Madhubani in Sessions Trial Nos. 16 of 1999 and 16A of 1999 (Trial Nos. 263 of 2012 and 263A of 2012), arising out of Basopatti P.S. case No.91 of 1997, G.R. No. 1806 of 1997)

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===========================================================

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Ganesh Sah, son of Late Satya Narain Sah.

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Santosh Sah @ Santosh Kr. Sah, son of Sri Ganesh Sah.

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Shambhu Sah, son of Sri Ganesh Sah.

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Binod Sah, son of Sri Ganesh Sah

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All residents of Village Basopatti, P.S. Basopatti, District Madhubani.

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.... .... Appellants Versus The State of Bihar .... .... Respondent. =========================================================== Appearance : For the Appellants : Mr. Ajay Kumar Thakur, Advocate. : Md. Imteyaz Ahmad, Advocate For the Respondent : Mr. A. K. Sinha, Addl. P.P.

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=========================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI

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and

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HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH) Date: 19-02-2014

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I. A. Ansari & The instant appeal has been filed by the four accused- S. P. Singh, J,J. appellants against judgment of conviction, dated 29.05.2013, under Sections 302/34 and 201/34 of the Indian Penal Code, passed by Additional Sessions Judge-II, Madhubani, in Sessions Trial Nos. 16 of 1999 and 16A of 1999 (Trial Nos. 263 of 2012 and 263A of 2012), arising out of Basopatti P.S. case No.91 of 1997, appertaining to G.R. No. 1806 of 1997. The accused-appellants have been sentenced, by order, dated 31.05.2013, to imprisonment for life and a fine of Rs.5,000/- (Five thousand), each for their conviction under Section

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S. P. Singh, J,J.

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302/34 of the Indian Penal Code and, in default, to pay the fine to suffer simple imprisonment for additional six months. They have also been sentenced to rigorous imprisonment for five years and a fine of Rs.3,000/- (Three thousand), each for their conviction under Section 201/34 I.P.C. and, in default thereof, to undergo further simple imprisonment of three months. However, both the sentences have been ordered to run concurrently.

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2. The prosecution‟s case, in short, as disclosed in the statement of informant, namely, Keshav Kumar Sah (PW. 10), recorded by Chandrama Singh, Officer-in-Charge, Basopatti, on 28.10.1997, at 8.30 A.M., at Basopatti cremation ghat, is as follows:

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(i) The informant states that there exists a dispute with respect to land between his deceased father, Shankar Sah, on one hand, and Ganesh Sah and his sons, namely, Sambhu Sah, Binod Sah and Santosh Sah, on the other hand, which is pending in Court. Due to the said land dispute, the accused-appellants, namely, Ganesh Sah and his sons, namely, Sambhu Sah, Binod Sah and Santosh Sah, quarreled with his father, on 26.10.1997, and had threatened him with life and that he would not be able to utilize the land. The informant‟s mother, namely, Jyoti Devi (PW. 7), sister Bina Kumari (PW. 6) and brother Vinod Prasad (PW. 3), also witnessed the said altercations.

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(ii) It is the further case of prosecution that deceased Shankar Sah, in order to safeguard his property, used to go to sleep at the house situated at Babhandei chowk. As usual, on 27.10.1997, the informant‟s father started from his Basopatti Bazar residence, at 10.00 P.M., after taking meal, for his house at Babhandei Chowk.

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(iii) On the next morning, i.e., 28.10.1997, at about 6.00–7.00 A.M., informant learnt that his father had been throttled to death and his dead body has been found hanged from a tree at the cremation ground in Babhandei „Mohalla‟ locality. On receipt of this information, the informant and his family members rushed to cremation ghat weeping and wailing, where they found the body of the deceased, hanging from a branch of a tree with the aid of a “ dhoti” with his mouth gagged by a towel .

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( iv) In the meantime, the informant‟s aunt, namely, Bhagirathi Devi (PW. 15), wife of Sushil Prasad (PW. 13), also arrived at cremation ground. She informed the informant that at 11.00 P.M., on the previous night, Shambhu Sah, Ganesh Sah, Vinod Sah had knocked the door of her house and threatened her , she did not open the door of her house and kept sleeping covering her face. The informant is fully convinced that his father had been done to death by Ganesh Sah and his three sons, namely, Sambhu Sah, Vinod Sah and

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Santosh Sah, whereafter he has been hanged from a tree at the cremation ghat.

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(iv) On the basis of the Fardbeyan of the informant, Basopatti P.S. Case no. 91 of 1997 was instituted, under Sections 302/34 and 201/34 of the Indian Penal Code, against the accusedappellants.

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3. A fter investigation, the police submitted chargesheet under Sections 302/34 and 201/34 of the Indian Penal Code and cognizance of offence was also taken under the same Penal provisions. After taking of cognizance, the case was committed to the Court of Sessions. Charges were framed against all the accusedappellants under Sections 302/34 and 201/34 of the Indian Penal Code to which they pleaded not guilty.

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4. The prosecution, in support of its case, has examined altogether 15 witnesses, namely, PW. 1 Kuldeep Sah, PW. 2 Munilal Mahto, PW. 3 Vinod Kumar Sah (son of late Shankar Sah), PW. 4 Dr. Sajjan Kumar Mishra, PW. 5 Ravinath Singh, PW. 6 Bina Kumari, PW. 7 Jyoti Devi, PW. 8 Vinod Kumar Sah (son of Ram Chandra Sah), PW. 9 Ramesh Mahto, PW. 10 Keshav Kumar Sah (informant), PW. 11 Mahendra Mahto, PW. 12 Mahendra Sah, PW. 13 Sushil Prasad Sah, PW. 14 Vishwanath Das, and PW. 15

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Bhagirathi Devi.

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5. Out of these witnesses, PW. 3, PW. 6 and PW. 7, are son, daughter and wife of the deceased respectively. PW. 13 is the brother of the deceased and PW. 15 is the wife of PW. 13. PW. 10, the informant, is the son of the deceased. PW. 4 is the doctor, who conducted post-mortem examination. However, the Investigating Officer of the case has not been examined, nor was examined A.S.I., Chandrama Singh, who recorded the fardbeyan . PW. 1 and PW. 2 have been declared hostile. PW. 5 is an Advocate Clerk and is a formal witness. PW. 8 is also a formal witness, who has proved the hand-writing and signature of Chandrama Singh, Officer-in-charge, Basopatti Police Station, PW. 9 has proved his signature on the fardbeyan, which has been marked as Exhibit-3.

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6. The case of defence is total denial of the occurrence. However, the defence did not examine any witness or produce any exhibit in support of its case.

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7. The statement of the accused-appellants were recorded under Sections 313(1) (b) of the Cr.P.C., wherein they pleaded their innocence.

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8. The learned trial Court, on consideration of the evidence, convicted all the accused-appellants under Sections 302/34

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and 201/34 of the Indian Penal Code and sentenced them as already detailed in paragraph 1 of the judgment. The accused-appellants have challenged their conviction and sentences passed against them in appeal.

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While considering this appeal, it needs to be noted that the case of the prosecution, as already indicated above, is that there was land dispute between the father of the informant and the accused-appellants and, on account of land dispute, they threatened his father, on 26.10.1997, i.e., two days prior to the occurrence and, in furtherance of their common, intention killed his father and tried to do away the evidence by carrying him to cremation ground, where he was hanged from a branch of a tree. The prosecution, in support of its case, has placed strong reliance upon the evidence of PW. 3, Vinod Kumar Sah (son of the deceased), PW. 6, Bina Kumari (daughter of the deceased), PW. 7 Jyoti Devi (wife of the deceased) and PW. 15, Bhagirathi Devi (aunt of the informant) besides the informant (PW. 10). Before we deliberate upon their evidence, it would be necessary to notice, in brief, the deposition of relevant witnesses.

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10. The informant (PW. 10), who is son of the deceased, supported the prosecution‟s case in his deposition, as narrated in the First Information Report, namely, that

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(a) PW. 10 stated, in his deposition, that his residential house is located near Durga temple chowk, Basopatti Bazar, and the Gharari house is in Babhandei chowk with respect to which a litigation is going on in Civil Court between his father and the accused-appellants. The informant‟s father used to look after the said Gharari house. The accused-appellants wanted to oust his father from the said Gharari house/land and on 26.10.1997, they had altercations with his father and asked him to flee away from the said place and to vacate the house or, otherwise, he would be killed and would not live to utilize the said land. He stated that his mother, namely, Jyoti Devi (PW. 7), sister, Bina Kumar (PW. 6) and brother, Vinod Kumar Sah (PW. 3) and others, who were present, witnessed the altercation.

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(b) In his examination-in-chief, he further stated that as usual, his father, on the night of 27.10.1997, went to sleep, at 10 PM, at Gharari house, after taking dinner from Basopatti house. On 28.10.1997, a fisherman, namely, Suresh Sahni informed him (PW. 10) and others that his father (Shankar Sah) had been killed and his dead body was hanging from a tree at the cremation ghat. Thereafter, he (PW. 10) along with other family members, rushed to the cremation ghat, where they found the dead body of Shankar Sah hanging from a tree with a “ dhoti” tied around his neck and mouth

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stuffed by a towel.

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(c) The informant reiterated, in his evidence, that Bhagirathi Devi informed him that the accused-appellants had knocked her door, at 11.00 P.M., on the fateful night and had dared her not to come out of the room, as such, she did not open the door.

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(d) The informant further deposed that the accusedappellants did not come to see his dead father at the cremation ghat, which is reflective of their guilty mind and, on account of the land dispute, the accused-appellants had killed his father.

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(e) The informant was cross-examined by the accused-appellants at length. In his cross-examination, he stated that there was a partition amongst his father and uncles during the life time of his grand-father. He stated that his house and the house of Ganesh Sah is within one Mandap and they used to stay in the common house. He further stated, in his cross-examination, that the other house, namely, the house at Babhandei chowk, was also partitioned during the life-time of his grand-father and the parties are in possession of their shares. He, however, stated that a litigation was going on at Madhubani, but does not remember whether it is of civil or criminal nature. He stated that there was no social interactions between his father‟s family and his accused uncle‟s family, because of the said

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dispute. The cremation ghat, where the dead body was found hanging from a tree is at a distance of ¼ K.M. from Babhandei chowk house. He further stated that the police arrived after an hour at the place of occurrence and recorded his statement on which he had put his signature.

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11. The evidence of PW. 3, Vinod Kumar Sah, PW. 6 Bina Kumari and PW. 7 Jyoti Kumari, are on the same line, as that of the informant with some minor variations and as such, we need not narrate the evidence in its entirety, for, it would be mere repetition of what the informant, in his evidence, has deposed save and except some salient features to which we would be referring separately. These witnesses reiterated the factum of land dispute with the accused-appellants, who wanted to capture the land and oust the informant‟s father therefrom. On 26.10.1997, they quarreled with Shankar Sah and had even threatened him with dire consequences. On account of the said land dispute, the accused-appellants with common intention killed Shankar Sah.

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12. However, we would like to make due reference to some aspect of depositions of PW. 7 and PW. 15, inasmuch as prosecution has placed heavy reliance on these statements, which, according to the prosecution, would firm a complete chain of

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circumstances pointing unerringly to the guilt of the accusedappellants. However, whether the prosecution has, in fact, succeeded in establishing the guilt of the accused-appellants would require due scrutiny of the relevant evidence.

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13. PW. 7, Jyoti Kumari (wife of the deceased) stated that the accused-appellants wanted to capture Babhandei land for establishment of Mill. For security of the said land, her husband used to sleep at Babhandei house. She stated that the accused-appellants, prior to occurrence, threatened her husband not to stake his claim to the land or else, he would not live to utilize the land. She further stated that on the fateful night, she came out to attend call of nature and heard the accused-appellants, namely, Ganesh Sah, Sambhu, Vinod and Santosh talking among themselves that the work had been done and they should remain cautious.

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14. The evidence of PW. 15, Bhagirathi Devi, aunt of informant, is also worth noticing. She, too, like other witnesses, stated about land dispute, on account of which the deceased regularly used to go to his Babhandei house to sleep, where one room was in the share of her husband, Sushil Prasad (PW. 13) also. On the fateful night, the accused-appellants knocked her door and warned her not to come out of the room and, on account of the threat, so given, she did

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not come out and continued to sleep covering her face.

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15. On the basis of the statements, which we have depicted above, the prosecution has made a claim that there are sufficient circumstances, which establish that it is the accusedappellants alone, who had murdered late Shankar Sah. The circumstances, on which the prosecution has relied upon are as follows:

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(a) That there was a land dispute with respect to land and house at Babhandei Chowk and as such, there was motive for the accused-appellants to kill his father, who had offered resistance to their claim.

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(b) The immediate cause for murder is the altercations, which took place on 26.10.1997, two days prior to the occurrence, wherein the accused-appellants had threatened Shankar Sah to renounce his claim with respect to the land; otherwise, he would not live to use of its usufructs.

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(c) PW. 7, wife of the deceased, on the fateful night heard the accused-appellants taking among themselves that the work had been done and they had to be very cautious.

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(d) PW. 17, Bhagirathi Devi, the aunt of the informant, stated that on the fateful night, the accused-appellants

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knocked at her door and threatened her not to come out of the room.

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(e) The accused-appellants had guilty mind and as such, they did not come to the place of occurrence, where the deceased was found hanging from a tree after being murdered.

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16. On the aforesaid premises, the prosecution submits that there are sufficient materials on record to establish the guilt of the accused-appellants, even though it may not be a case of direct evidence.

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17. Mr. Ajay Kumar Thakur, learned counsel appearing on behalf of the appellants, fairly does not dispute the proposition of law that the conviction can be founded on the basis of circumstantial evidence, though conviction is permissible only if the chain of circumstances is complete and unerringly point to the guilt of the accused-appellants leaving no scope for any conclusion other than the conclusion of guilt of the accused-appellants.

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18. Elaborating his submissions, Mr. Thakur stated that in fact, there was no land dispute as a partition was effected in the lifetime of the grand-father of the informant himself and shares were duly apportioned. He submits that even PW. 7 and PW. 15 have stated that the share holders are in respective possession of their portions of the land and property. He next submits that even on the point of land

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dispute and altercations, the evidence of the prosecution witnesses are not consistent with each other. The non-examination of the Investigating Officer has seriously prejudiced his case.

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19. He submits that PW. 7, for the first time, stated in the Court that when she came out to answer call of nature, she heard the accused-appellants talking amongst themselves that the work had been done and caution had to be observed. He submits that PW. 7 has not made the said statement before the police under Section 161 of Cr.P.C. and as such, the said piece of evidence cannot be relied upon and has no legs to stand.

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20. Mr. Thakur next submits that statement of PW. 15, that the accused-appellants had knocked the door on the fateful night and threatened her not to come out, cannot be relied upon inasmuch as she has denied in her evidence, that she had disclosed the said piece of evidence to the other witnesses. Thus, Mr. Thakur submits that the circumstantial evidence is of weak nature and cannot establish that the accused-appellants had committed the murder. He submits that a mere motive and prior altercations cannot, in absence of any further incriminating evidence, be sufficient to hold the accused-appellants guilty. The two circumstances could not itself conclusively establish that it was the appellants, who had killed the

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deceased. He next submits that no one has seen the accused-appellants either killing the deceased or carrying him to the cremation ghat or having seen them at or around the place of occurrence.

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21. On the other hand, the defence has tried to make out a case that the deceased was, in fact, entangled with PW. 15, the wife of his brother (PW. 13), who may have planned his murder.

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22. We have heard the counsel for the parties. Admittedly, there is no eye witness to the murder of the deceased and the case is one based on circumstantial evidence. Only if the chain of circumstances are so complete, which would point to the guilt of the accused-appellants and the accused-appellants alone that conviction can be fastened on the basis of circumstantial evidence; otherwise, acquittal would be the only recourse.

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23. The principle, which would guide and weigh with the Court, administering criminal justice in dealing with a case based on circumstantial evidence, have been laid down, as early as in 1952, in case of Hanumant Govind Nargundkar v. State of M.P. reported in AIR 1952 SC 343 . The Hon‟ble Supreme Court, in case of Sharad Birdhichand Sarda vs. State of Maharashtra, reported in (1984) 4 SCC 116, reiterating the said principles observed, that a person can be convicted even in absence of direct evidence if the

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following circumstances are fulfilled.

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“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

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(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

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(3) the circumstances should be of a conclusive nature and tendency,

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(4) they should exclude every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

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24. The doctor (PW. 4) has opined that the death has been caused due to hemorrhage and shock as a result of fracture at the right parietal temporal region with hard and blunt substance. Post mortem report has been exhibited as Exhibit 1.

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25. The doctor (PW. 4) conducted the post-mortem and found the following ante mortem injuries:

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(i) Swelling 2.5” oval in shape at parietal temporal region rights side.

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(ii) Bruise 1” x ½” both elbow joint on middle side.

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(iii) Ligature mark transverse continuous round on the neck at the level of thyroid cartilage. The base of groove is faint in

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front and deep reddish in back side (postmortem ligature mark).

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On dissection of the dead body:

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(i) Collection of clotted blood present at the sight of

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swelling;

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(ii) Depressed fracture at the right of parietal

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temporal region,

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(iii) Cranial cavity containing 100 ml of blood and blood clot with lacerated brain matter,

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(iv) No extra vision of blood under ligature mark.

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(v) No muscle lacerating on neck.

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(vi) Right heart full of blood and left heart empty.

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(vii) All internal viscera, namely, lung, liver, spleen,

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both kidney pale.

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(viii) Stomach containing semi digested food

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material.

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(ix) Intestine containing fluid matter and gasses.

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(x) Urinary bladder empty.

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(xi) Brain and ménages pale.

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The doctor opined that the death was caused by haemorrage and shock as a result of injury Nos. (i), (ii) and (iii), found on dissection, caused by hard and blunt substance.

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26. The prosecution case is that the accusedappellants had motive to kill the deceased Shankar Sah on account of land dispute. In fact, PW. 3, in paragraph 1, PW. 6 in paragraph 2, PW. 7 in paragraph 1, PW. 10 in paragraph 1, have all stated that there was a land dispute with the accused-appellants and deceased Shankar Sah on account whereof they tried to oust him from the house and as the deceased did not relent, he had been done to death. The accused-appellants have tried to suggest to the witnesses that there was a partition between the informant and his uncles during the life time of his grand-father and as such, there does not remain any dispute and as such, there cannot be any motive for the murder. We find that the defence does not deny that litigation is not pending between the parties. Moreover, the prosecution witnesses have consistently stated that there is land dispute on account of which the deceased was threatened by accused-appellants on 26.10.1997. Thus, we hold that the prosecution has been able to establish the motive aspect of the case. Even if motive is proved, it would be only one of the circumstances, which may point to the guilt and not the complete

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guilt beyond all reasonable doubt.

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27. The prosecution had contended that there was prior altercation on 26.10.1997, which was the immediate cause for the murder.

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28. We further find from the examination of the witnesses that some dispute took place on 26.10.1997, two days prior to the occurrence, at the common house at Basopatti occupied by the prosecution side as well as the accused-appellants. The defence has tried to submit that the statements of the witnesses are not consistent on the issue inasmuch as PW. 3, in paragraph 4, stated that there was a quarrel and the accused-appellants assaulted the deceased Shankar Sah also. This assertion cannot be readily accepted as true inasmuch as PW. 6, the daughter of the deceased, PW. 7, the wife of the deceased, and PW. 10, the informant (son of the deceased), did not state that the accused-appellants assaulted the deceased; rather, PW. 6 stated that the accused-appellants threatened the deceased, late Shankar Sah, on 26.10.1997, that he would be badly assaulted and reduced to ashes. The evidence of PW. 3 that the said deceased was assaulted does not seem to be reliable . Still the prosecution witnesses consistently stated that altercations had taken place on 26.10.1997 and the accused-appellants had also threatened the deceased with dire

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consequences.

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29. Thus, the prosecution‟s case to the extent that there was a quarrel two days prior to the date of occurrence and that threat was given to the deceased by the accused-appellants seem to be established.

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30. The two circumstances discussed above are, in themselves , conclusive in nature determine the guilt of accusedappellants.

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31. We would, now, examine whether the prosecution has been able to establish the other three circumstances on which it has placed reliance to establish the guilt of the accused-appellants. The prosecution has pointed out that the evidence of PW. 7 and PW. 15 would complete the chain of circumstances pointing to the guilty of the accused-appellants. The prosecution has mainly placed reliance upon the evidence of PW. 7, wherein she stated that on the fateful night, when she came out of her house, at Basopatti, for attending call of nature, she heard Ganesh Sah, Sambhu Sah, Vinod Sah and Santosh talking with their family members that work had been done and they should remain cautious. We find that the said statement of PW. 7 is not worthy of acceptance; rather, it is an improvement on her previous statement inasmuch as she did not make any such statement

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before the police and has made such a statement, for the first time, at the trial. The defence has also drawn her attention to this fact.

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Thus, we find that at least, the said version of this witness, which, otherwise, could provide a possible link to the murder is not at all worth of reliance.

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32. The next circumstance, relied upon by the prosecution, is that PW. 15, in her evidence, stated that on the fateful night, the accused-appellants knocked at her door at the disputed house situated at Babhandei chowk and dared her not to come out of the room. It is the prosecution‟s case that the deceased used to leave to sleep, at Babhandei chowk house, in the night so that he might not be ousted from his rightful claim by the accused-appellants. It is true that the informant, in his fardbeyan/First Information Report as well as in his deposition, stated that PW. 15 had disclosed the said fact to him, but inquisitively, there is no statement of PW. 15 before the Court that she narrated the said incident to the informant or other witnesses. In absence of such corroborative statement of PW.15, the statement of PW. 10 or other witnesses would be at least, „hearsay‟ in nature, which cannot be used for fastening conviction.

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33. Thus, we find that two of the circumstances, relied upon by the prosecution, do not stand proved.

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34. The last circumstances that was pointed out by the prosecution is that the accused-appellants had a guilty mind and hence, though a lot of neighbours and other persons came to the cremation ground, where the dead body was hanging from a tree, the accused-appellants were conspicuous by their absence. It has come in the evidence of PW. 10 that the prosecution side and the accusedappellants were not on visiting terms, which possibly can explain their absence. Only because the accused-appellants did not come to the cremation ghat, where the deceased was found hanging from a tree, would not conclusively reflect the guilty mind of the accusedappellants. Further more, their presence would, as per old age adage, might have the effect of rubbing salt to the wound in view of total absence of social interactions between the parties concerned.

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35. In view of the settled principles of law, governing circumstantial evidence, we would further examine whether the chain of circumstances is complete to point to the guilt of the accused-appellants. The Hon’ble Supreme Court, in case of Varun Chaudhary Vs. State of Rajasthan, reported in 2011 (1) PCCR 263, in paragraph 24, observed as follows:

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“24. It is a settled legal position that in case of circumstantial evidence, there must be a complete chain of evidence which would lead to a conclusion that the

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accused was the only person, who could have committed the offence and none else. In the instant case, there is nothing to show that the accused had committed the offence and on the basis of the aforestated material, in our opinion, it would be dangerous to convict the accused. In the case of G. Parshwanath vs. State of Karnataka , (2010) 8 SCC 593, para 24, it has been stated that “in deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the Court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved…………………… There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are themselves compete, then the false plea or false defence may be called into aid only to lend assurance to the Court.”

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36. Applying the law laid down by Hon‟ble Apex

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Court, with respect to fastening of guilt based on circumstantial evidence, we find that the prosecution has mainly been able to establish that there was a land dispute and an altercation had taken place between the said deceased and the accused-appellants two days prior to the occurrence, which possibly could be form a motive for the accused-appellants to kill the deceased. These two circumstances, though relevant, would not be sufficient to prove the guilt of the accused-appellants in absence of further corroborative evidence.

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37. We have already come to a finding that apart from the said circumstances, the prosecution has not been able to bring forth any further incriminating circumstance, which could also point to the guilt of accused-appellants. No one has seen the commission of murder; no one could identify the place, where the deceased was killed. No one has seen the accused-appellants taking away the deceased from his Babhandei chowk house to the cremation ground, where he was found hanging from a tree. Equally, there is no evidence on record that any time, prior to death or after the death, the accused-appellants were seen with the deceased or even around the place of occurrence. Further more, the case of the prosecution that PW. 7 has heard the accused-appellants talking among themselves that the work had been done and that they had to be cautious and the

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evidence of PW. 15 that the accused-appellants had threatened her not to come out of the room, on the fateful night, are not legally admissible in evidence for reasons already recorded. As such, we find that the prosecution has not been able to establish the complete chain of circumstances, which could point to the guilt of the accusedappellants alone and no other view other than one pointing to the guilt of accused-appellants is possible. We find that there is total lack of incriminating evidence as to what happened once the deceased left his Basopatti house in the night of 27.10.1997, for his Babhandei chowk house. Apart from the fact that a threat was given and there was a land dispute, no further reliable incriminating material has come against the accused-appellants.

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38. In view of the discussions made above, we do not find that there is sufficient materials on record, which could be said to have proved the guilt of the accused-appellants either under Section 302/34 and/or 201/34 of the Indian Penal Code and, hence, the impugned judgment of conviction and order of sentence are set aside. The accused-appellants are held not guilty and they are acquitted of the same. Let the accused-appellants be released, forthwith, if not wanted in other case.

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39. Send back the lower court records with a copy of

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this judgment and order.

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(I. A. Ansari, J.)
Uday/NAFR (Samarendra Pratap Singh, J.)

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Ganesh Sah and Ors. v. The State Of Bihar

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Ganesh Sah and Ors. v. The State Of Bihar

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