Pandey & Ors Vs. State of Bihar  Insc 639 (5 December 2001)
Banerjee & K.G. Balakrishnan K.G. Balakrishnan, J.
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
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
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.
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
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
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.
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.
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.
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 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.
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:-
accused persons have evil eye upon the deceased, moreover, apart from this,
have got grudge.
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.
deceased was seen proceeding on that way, towards Karisath.
Mahato, Sudama Pandey and Kanhaiya were seen following her.
From the P/C field, Bhushan Mahato, Sudama Pandey, Madan Pandey, Bhuchai Mahato
and Anil Deka were seen coming out.
had not attended her school on 6.11.96.
They have been apprehended by the police on different dates.
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.
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
evidence of PW-4 Ekram Singh was relied on by the Sessions Court.
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 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.
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
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.
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.
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.
appeals are allowed accordingly.