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CASE NO.:

Appeal (crl.) 654-655 of 2000

PETITIONER:

SUDAMA PANDEY AND OTHERS

Vs.

RESPONDENT:

STATE OF BIHAR

DATE OF JUDGMENT: 05/12/2001

BENCH:

U.C. Banerjee & K.G. Balakrishnan

JUDGMENT:

K.G. Balakrishnan, J.

The five accused persons along with two others were tried by the Third

Additional Sessions Judge of Bhojpur in Bihar. The Sessions Court acquitted the

other two accused persons and convicted these appellants for the offences

punishable under Section 302 read with Section 34, Section 376/511 and Section

201/34 I.P.C. and sentenced all the appellants to death. On appeal, the Division

Bench of the High Court of Bihar confirmed the conviction of all the five

appellants, but commuted the death penalty to imprisonment for life.

The appellants were tried on the allegation that they had caused the death

of a 12 years old girl by name Gudia Kumari. Gudia Kumari was a student of

Class VIIth. On 6.11.1996, at about 9.30 A.M., she left the house for the school

but did not return home till evening. The members of her family started

searching her but they could not find out her whereabouts, on that day. On the

next morning, PW1, Satendra Singh, the brother of Gudia Kumari came to know

that her dead body was lying in the field of one Ravi Shankar Pandey. PW9, the

Sub-Inspector of Police also came to know that the dead body was lying in the

field and he went there along with the Deputy Superintendent of Police. PW 8,

Dadan Singh gave statement to the police and on the basis of that statement, a

case was registered against Bhushan Mahto, Madan Pandey and Bhuchai

Mahto. PW9 conducted further investigation in the matter and Inquest was held

over the dead body, and the dead body of Gudia Kumari was sent for post-

mortem examination.

PW-9 took statements of the witnesses and finally laid charge sheet

against seven accused persons. On the prosecution side, 10 witnesses were

examined and on the defence side, 3 witnesses were examined. There is no

direct evidence to show as to how Gudia Kumari was done to death by the

assailants. The learned Sessions Judge relied on the various circumstantial

evidence and found these appellants guilty of the offences and the said finding

was confirmed by the High Court.

We heard Shri Sushil Kumar, learned Senior Counsel for the appellants

and Mr. Saket Singh, learned Counsel on behalf of the State. On a careful

analysis of various items of evidence relied on in this case, we are of the view

that the Sessions Judge seriously flawed in coming to the conclusion that these

appellants were guilty of the offence of murder. It is a settled principle that in the

case of circumstantial evidence, the various circumstances should be able to

form a chain pointing to the guilt of the accused. In cases where there is only

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circumstantial evidence, the Court has to consider the evidence adduced by the

prosecution and decide whether the evidence proves particular facts relevant

for the purpose of the case and when such facts are proved the question arises

whether the facts are capable of giving rise to any inference of the guilt of the

accused person or not. An inference of guilt can be drawn only if the proved fact

is wholly consistent with the guilt of the accused and certainly he is entitled to the

benefit of doubt if the proved fact is consistent with his innocence.

The law relating to circumstantial evidence, in clear and unmistakable

terms, has been laid down by this Court in various decisions and it is sufficient to

quote statement of law made by this Court in Tanviben Pankajkumar Divetia

vs. State of Gujarat 1997(7) SCC 156:-

The principle for basing a conviction on the basis of

circumstantial evidence has been indicated in a number of

decisions of this Court and the law is well settled that each and

every incriminating circumstance must be clearly established by

reliable and clinching evidence and the circumstances so proved

must form a chain of events from which the only irresistible

conclusion about the guilt of the accused can be safely drawn and

no other hypothesis against the guilt is possible. This Court has

clearly sounded a note of caution that in a case depending largely

upon circumstantial evidence, there is always a danger that

conjecture or suspicion may take the place of legal proof. The

Court must satisfy itself that various circumstances in the chain of

events have been established clearly and such completed chain of

events must be such as to rule out a reasonable likelihood of the

innocence of the accused. It has also been indicated that when the

important link goes the chain of circumstances gets snapped and

the other circumstances cannot, in any manner, establish the guilt

of the accused beyond all reasonable doubts. It has been held that

the Court has to be watchful and avoid the danger of allowing the

suspicion to take the place of legal proof for sometimes,

unconsciously it may happen to be a short step between moral

certainty and legal proof. It has been indicated by this Court that

there is a long mental distance between may be true and must be

true and the same divides conjectures from sure conclusions.

These principles have been elaborately dealt with in Sharad Birdhichand

Sarda vs. State of Maharashtra 1984(4) SCC 116 and in various other

decisions and reference to such cases is not necessary.

In the instant case, it can be easily demonstrated that the various

circumstances relied on by the Sessions Court and the High Court did not point

to the guilt of the accused and there are various circumstances which throw

serious doubts that Gudia Kumari must have met with her death, not in the

manner alleged by the prosecution and these appellants cannot be found guilty

of the offence charged against them. We are not unmindful of the fact that this

Court under Article 136 of the Constitution seldom interferes with the factual

findings recorded by two concurring Courts but if this Court is satisfied that the

High Court has committed a serious error of law and that there was substantial

miscarriage of justice, this Court could interfere with the concurring findings of

the High Court and that of the Trial Court. This Court also does not normally

enter into a reappraisal or review of the evidence unless the assessment of the

evidence by the High Court is vitiated by an error of law or procedure or there

was misreading of evidence.

The dead body of Gudia Kumari was found in the field of Ravi Shankar

Pandey. On examination of the dead body, the Doctor found that there were

series of injuries on the body. Both the eyes were found disgorged and the

nose was chopped off and there was an incised wound on the right side of the

neck and right carotid artery and vein were found cut. There were injuries on the

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hands of the deceased also. The hymen was found entirely ruptured. The

expert opinion was to the effect that there was no indication that rape was

committed on her. The Doctor also noticed on examination of the dead body that

the digested food materials of about 3 onz were found in the stomach and was of

the opinion that the deceased might have taken the meals 6 to 7 hours before the

death.

The various incriminating circumstances based on which the court drew

the inference of guilt of the accused are enumerated in paragraph 55 of the

Judgment by the Sessions Judge. These are as follows:-

1. The accused persons have evil eye upon the deceased,

moreover, apart from this, have got grudge.

2. On 6.11.96 at 9.30 A.M. when the deceased was proceeding

towards Karisath for attending class in a way, accused Bhuchai

Mahato, Aasami @ Anil Deka and Anil Pandey were seen sitting

on a ridge at P.O. field, lying by the side of way.

3. Gudiya, deceased was seen proceeding on that way, towards

Karisath.

4. Bhushan Mahato, Sudama Pandey and Kanhaiya were seen

following her.

5. From the P/C field, Bhushan Mahato, Sudama Pandey, Madan

Pandey, Bhuchai Mahato and Anil Deka were seen coming out.

6. Gudia had not attended her school on 6.11.96.

7. They have been apprehended by the police on different dates.

On a bare perusal of the circumstances, it can easily be found that these

circumstances are not sufficient to prove that these appellants are guilty. The

evidence in support of these circumstances is that of PW4 Ekram Singh, PW5

Suryadev Pandey, PW1 Satendra Singh and PW8 Dadan Singh.

PW1 is the brother of the deceased Gudia Kumari. He went in search of

Gudia in the evening of 6.11.96. He could not trace out Gudia. He had gone to

the school where she was studying but the school was found closed. While he

was returning, he saw all the seven accused persons sitting together and

murmuring something and on seeing the witness, they maintained silence. He

had also deposed that one week before the death, his sister Gudia Kumari had

told him that these seven accused persons had teased her. It is important to

note that PW1, when questioned by the Police, did not inform that the deceased

was teased by the appellants a week prior to the incident. It is also important to

note that this witness had also not informed the police that on the evening of

6.11.1996, he saw Anil Deka, Ramnath Pandey and Jhinur Pandey talking

among themselves near the house of Balmiki Pandey. Even if it is assumed that

he had seen the accused together, that by itself is not an incriminating

circumstantial evidence unless it was very near to the scene of occurrence or

that they were found in suspicious circumstances.

The evidence of PW-4 Ekram Singh was relied on by the Sessions Court.

It is alleged that he had seen all the five appellants herein at about 10o clock in

the morning coming from the field of Ravi Shankar Pandey. The witness has no

case that they were found under suspicious circumstances. They had no

weapons with them nor their clothes were blood stained. The witness has also

no case that these appellants had shown any anxiety on seeing the witness. The

Sessions Judge placed implicit reliance on PW4 on the assumption that these

appellants were seen by PW4 immediately after the incident. It is important to

note that Gudia Kumari must have taken food before she left for school and

according to the evidence of the Doctor, the death must have happened about 6

to 7 hours after the consumption of the last meal. Therefore, even if it is

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assumed that PW4 had seen these appellants near the field of Ravi Shankar

Pandey, it is not an incriminating circumstantial evidence, which would, in any

way, advance the case of the prosecution.

Another witness is PW5 Suryadeo Pandey. He deposed that he had seen

Madan Pandey and Anil Deka sitting on the ridge near the field where the

incident had taken place. He saw them at about 9.30 a.m. on 6.11.1996. He

also saw Gudia Kumari going to school and according to him, Sudama Pandey,

Kanhaiya alias Jhingur Pandey and Bhushan Mahato were following her. It is

important to note that PW5 Suryadeo Pandey did not state before the Police that

he had seen Anil Deka and Madan Pandey sitting on the ridge. It is also to be

noticed that this witness was an accused in a criminal case where one

Nageshwar Pandey, the fathers brother of the accused Madan Pandey, had

been murdered. This witness was found guilty and was sentenced to

imprisonment for life. Evidence of such a witness should have been considered

by the Court of Sessions with extreme care and caution. In this case, all the

witnesses examined on the side of the prosecution had strong enmity towards

the appellants. Two persons were previously murdered and both of them were

related to the appellants. PW5 and PW8 examined on the side of the

prosecution were the accused in these criminal cases.

The entire evidence adduced by the prosecution would only go to show

that the prosecution witnesses found these appellants in the vicinity of the place

where the dead body was found. These appellants were not found under any

suspicious circumstances. All the appellants belong to the same village. If they

were found sitting together or found walking along the road, that by itself is not an

incriminating circumstance pointing to the guilt of the accused. The evidence to

the effect that some of the appellants teased the deceased Gudia Kumari is also

not satisfactorily proved. Apart from this flimsy suspicion, there is no evidence to

connect these appellants to the crime. Had there been any cogent and

convincing item of evidence to connect these appellants to the crime, such as

recovery of any weapons allegedly used by them for committing crime or any

blood stained clothes worn by them, it would have been of some assistance to

prove the guilt of the appellants. The Investigating Officer could not lay his

hands on any such incriminating material. The appellants were arrested

immediately after the incident. None of them had any injuries on their body. It is

also suspicious whether the incident itself had occurred in the field of Ravi

Shankar Pandey. The Investigating Officer deposed that he did not notice in the

mahazar that there were footmarks or the trampling of the plants near the area

where the dead body was found. The learned Sessions Judge found the

appellants guilty on fanciful reasons based purely on conjectures and surmises

and it is unfortunate that the High Court also did not properly scan the evidence.

It is all the more painful to note that the learned Sessions Judge, on the basis of

the scanty, discrepant and fragile evidence, found the appellants guilty and had

chosen to impose capital punishment on the appellants.

We are of the view that Sessions Court as well as the High Court

committed serious error in appreciating the circumstantial evidence in this case

and it resulted in miscarriage of justice. Therefore, we are constrained to

interfere with the finding of the High Court and hold that the prosecution failed to

prove that the appellants had committed any of the offences charged against

them. The appellants are found not guilty and they are acquitted of all the

charges framed against them. They are directed to be released forthwith from

the jail, if their detention is not required in any other case.

The appeals are allowed accordingly.

... J.

(U.C. BANERJEE)

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J.

(K.G. BALAKRISHNAN)

December 5, 2001.

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