Dil Kumar Yadav vs The State Of Bihar
2023 Latest Caselaw 3869 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (DB) No.924 of 2022
          Arising Out of PS. Case No.-214 Year-2014 Thana- BARACHATTI District- Gaya
     ======================================================

Dil Kumar Yadav S/O Kuleshwar Yadav R/V- Padeya, P.S.- Barachatti, District- Gaya

... ... Appellant/s Versus

1. The State of Bihar

2. Birendra Yadav S/o Late Lakhan Yadav R/v- Padeya, P.S.- Barachatti, District- Gaya

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Surya Narayan Yadav, Adv.

Mr. Binod Kumar Sinha, Adv.

Mr. Ashok Kumar, Adv.

     For the State           :       Mr. Bipin Kumar, APP
     For the Resp. No.2      :       Mr. Ajay Kumar Thakur, Adv.
                                     Md. Imteyaz Ahmad, Adv.
                                     Mrs. Vaishnavi Singh, Adv.
                                     Mr. Purushottam Kumar, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 21-08-2023

The appellant is the father of the deceased who

has preferred this appeal aggrieved by the judgment and

order of acquittal in favour of respondent no.2 who had

been put on trial for killing his son, a twelve years old

child.

2. We have heard Sri Surya Narayan Yadav,

learned advocate for the appellant/Informant and Mr. Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

Ajay Kumar Thakur for respondent no.2. We have also

perused the Lower Court records.

3. The appellant/Informant has lodged the FIR

on 23.05.2014 alleging that his son (deceased) had

gone missing since 21.05.2014. In the aforenoted

report, it was alleged by the appellant, who has been

examined as P.W.7 at the trial, that the deceased was

playing along with his sister Suhani (P.W.6) in the field

where respondent no.2 was also present and roaming

around. After sometime, the daughter of the appellant

came back home for quenching her thirst. In the

meantime, it has been alleged, respondent no.2

kidnapped the deceased and the reason for the appellant

to assert is that when the sister of the deceased again

went out in the fields to play, she saw neither her

brother nor respondent no.2. The sister of the deceased

thereafter came back home and told the appellant that

respondent no.2 has taken away her brother. A search

was made by the appellant and his family members on Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

the same day but to no avail. A day later i.e. on

22.05.2014, an information was given by the appellant

to the Officer In-charge of the concerned police station

whereafter some enquiries were made by the police but

nothing happened. On 23.05.2014, at about 9 o'clock in

the day, a word went round in the village that a dead

body is floating in the village well. The appellant and his

family members went there and immediately identified

the dead body to be that of his son. The appellant claims

to have informed about it to the Officer In-charge of the

police station whereafter the police party arrived and

took out the dead body from the well. The appellant,

therefore, had alleged that because of old enmity,

respondent no.2 has kidnapped his son, killed him and

thereafter, in order to screen the offence, threw the dead

body in the well.

4. On the basis of the aforenoted written

report, Barachatti P.S. Case no.214 of 2014 dated

23.05.2014 was registered for investigation of offences Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

under Sections 364 and 302 of the Indian Penal Code.

5. The police after investigation submitted

charge-sheet against respondent no.2 whereupon

cognizance were taken and respondent no.2 was put on

trial.

6. The Trial court, after having examined nine

witnesses on behalf of the prosecution and two on behalf

of the defence, acquitted the respondent no.2 of all the

charges, holding that the circumstances for declaring the

guilt of the respondent was not complete in any manner

whatsoever. For coming to this conclusion, the Trial

court took into account the fact that even when the

daughter of the appellant (sister of the deceased) had

informed in her house that respondent no.2 had taken

away her brother, the appellant did not make any

allegation against him in the report which was lodged by

him on 22.05.2014 about missing of his son. It was only

on 23.05.2014 i.e. after the dead body was recovered

from the well that the FIR was lodged in which the story Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

of respondent no.2 having kidnapped and killed the

deceased was introduced.

7. Though the aforenoted story has been

repeated by other prosecution witnesses, all of whom are

closely related to the appellant and the deceased, but

the question as to why the name of respondent no.2 did

not figure in the complaint lodged by the appellant a day

after the deceased went missing, kept staring at the Trial

court, which issue could never be resolved by the

prosecution.

8. Thus, holding that there is no direct or

indirect evidence of commission of crime as alleged, the

Trial court after reiterating the Panchsheel principles in

cases of circumstantial evidence, acquitted the

respondent.

9. Mr. Yadav, learned counsel for the appellant

has submitted that true it is that in the missing report

lodged by the appellant a day after his son went missing

does not mention the name of the respondent no.2 but, Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

that by itself, does not weaken the prosecution case in

its entirety. Everybody in the family of the appellant

knew that respondent no.2 had been moving around in

the field when the deceased and his sister were playing.

During the brief interregnum when the sister of the

deceased came back home and again went back to the

field, both of them viz. the deceased and respondent

no.2 were not to be found.

10. Mr. Yadav has further pointed out that for

all the while the search was being made, the respondent

no.2 was not present in his house. There is past enmity

between the appellant and the respondent no.2 and,

therefore, there was something more than only

speculation of respondent no.2 having kidnapped and

killed his son for avenging the enmity.

11. According to the FIR, Mr. Yadav argues, the

dead body was recovered from the well by the police

party which had been informed by the appellant himself

that the dead body of his son is floating in the well. Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

12. The postmortem report, according to Mr.

Yadav, clearly makes out a case of murder of the

deceased and thereafter throwing him in the well. He

says so on the strength of the opinion of the Doctor

(P.W.9) that there were abrasion at the back of the head

of the deceased which was placed below the occipital

region and it extended obliquely towards the ear. The

cranial cavity also contained blood clots. There could

have been no confusion regarding the deceased having

been killed first and then thrown in the well. In this

context, Mr. Yadav has argued that the entire deposition

needs to be seen.

13. To tie the strings together, it has been

urged on behalf of the appellant that the respondent

no.2 was in the look out for an opportunity to avenge

the enmity and he found one when the deceased was in

the field alone for sometime. This opportunity was

grabbed by respondent no.2 who took him to some

unknown place, killed him and thereafter in order to Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

adroitly put up an appearance of the deceased having

accidentally died by falling in the well, threw the dead

body in the well and absconded himself. He, therefore,

submits that the judgment delivered by the Trial court is

absolutely perverse and is based on a doctrinaire

approach that without connecting every dot in the

circumstantial penumbra, in the absence of which no

conviction could have been recorded.

14. As opposed to the aforenoted submissions,

Mr. Thakur has urged that there is not an iota of

evidence in the entire case record to even remotely

suggest that the appellant and only him had killed the

deceased. The premise on which such statement is based

is firstly the absence of any accusing finger on the

respondent no.2 in the missing report lodged by the

appellant a day after the deceased went missing. By that

time, the appellant had already learnt from his daughter

(P.W. 6) that respondent no.2 was ubiquitous by his

presence in the field near a bush and within a short time Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

when P.W. 6 came back to the field, neither the

deceased nor respondent no.2 were to be found.

15. This story has been narrated by all the

witnesses who are related to the appellant as well as the

deceased. This therefore presupposes, Mr. Thakur has

contended, that the information about respondent no.2

being present at the place of occurrence was

communicated by P.W. 6 to all the members of the

family. This being the information to the appellant, there

is no reason whey there was no accusative finger, even

by way of suspicion on respondent no.2. Secondly, Mr.

Thakur has submitted that from the medical testimony of

the deceased, it would appear that the deceased had

accidentally fallen in the well while playing. Mere

presence of an abrasion below the occipital region,

specially when the injury viz. abrasion is found in a

lateral position, extending up to the earlobes, it was

highly unsafe for the Doctor conducting the postmortem

to have conclusively held that the deceased died out of Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

an injury caused by hard and blunt substance. Nothing

appears to be in the postmortem report which would

indicate that any effort was made by the Doctor to find

out whether the injury was ante-mortem or the death

was because of the drowning. A conclusive finding of the

Doctor would have clinched the issue so far as homicidal

murder of the deceased was concerned.

16. Lastly, it is submitted that the very attempt

of the appellant in introducing the story of a demand of

ransom of Rs.50,000/-, which story appears to have

been repeated by all the prosecution witnesses, makes

the prosecution case even more doubtful. When was

such demand made and for what reason has not been

stated by the appellant. If the appellant feared any

onslaught, he would have sounded it in his family. Both,

the appellant and the respondent no.2 are witnesses

against each other in two different murder cases. If

respondent no.2 had a criminal background, the

appellant also did not lag behind.

Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

17. Thus, Mr. Thakur concludes that after the

dead body was found, the appellant took the

opportunity, in a brazen manner, in falsely framing the

respondent with whom he has not been on good terms.

18. After having heard the learned counsel for

the parties and having perused the records, we have

seen some glaring facts in this case for us to affirm the

judgment and order of acquittal.

19. As contended on behalf of the respondent

no.2, the appellant did not name him in the missing

report. We have also found that the appellant has not

made a correct statement in the F.I.R. that he had

informed the police about the dead body of the deceased

floating in the well when the police party arrived and

took out the dead body from the well.

20. The I.O. of this case (P.W.8) has

categorically asserted that he had received an

information at the police station about the death of a

person in the village and when he came to the concerned Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

village, he found the dead body of the deceased lying on

a cot. Obviously, therefore, the dead body was spotted

by the villagers and the appellants and his family

members and only thereafter it was taken out. Till such

time, there was no accusation in the air about the

respondent no.2 having committed the crime.

21. The I.O., we have found, has further denied

that the sister of the deceased made any such statement

which she had made before the Trial court. Obviously,

therefore, P.W.6, the sister, was only telling the Trial

court what she had been tutored to say.

22. There is yet another reason for us to doubt

the accusation. Respondent no.2, if the prosecution case

is to be believed, was ultra quick in consummating his

act. Only for a brief while, the sister of the deceased had

disappeared from the scene. The field where the children

were playing is a place which is frequented by children

and other people. According to the evidence on record,

while the deceased was playing with his sister, there Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

were other children playing in the field. Absence of any

independent person of the village coming to the witness-

stand to talk about the respondent no.2 having taken the

deceased with him and killing and thereafter throwing

him in the well sends us doubting about the correctness

of the prosecution version.

23. All the witnesses who have spoken about

the demand of ransom money by respondent no.2

obviously are repeating what the appellant had to say in

the F.I.R. As argued by Mr. Thakur, when was such

demand made and for what has remained known. The

parties are at loggerheads but for various reasons.

Respondent no.2 resides nearly in the same village. With

this evidence, it will be difficult to presume that the

deceased was first kidnapped and then killed and then

his dead body was thrown in the well.

24. A look at the postmortem report further

confirms that the deceased might have accidentally

fallen in the well. The injury beneath the occipital reason Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

in the nature of an abrasion further confirms that in all

its probability, it would not have been result of any

attack from behind or else the injuries would have been

longitudinal in nature. A transverse positioning of the

injury beneath the occipital region is reflective of an

accidental fall over a hard substance. No investigation

appears to have been made whether the village well had

any fences. The presence of blood clots in the cranial

cavity could be the impact of injury beneath the occipital

region because of fall.

25. We have also found, with disgust, that the

viscera report was not brought on record. There are

some lateral evidences also which go in favour of

respondent no.2. There is a reasonable explanation of

the absence of respondent no.2 from his house for a

brief while in his statement under Section 313 of the

Cr.P.C. We have also found from the deposition of I.O.

that in the first instance, no effort was made to arrest

the respondent no.2 but, shortly thereafter i.e. after his Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

being named in the F.I.R., he was arrested. There is

complete absence of even a rumor in the village that in

order to avenge the enmity, the respondent no.2 had

committed such a dastardly act of killing the son of the

appellant. Precisely for this reason, no independent

person has come in support of the prosecution case.

26. The Trial court is absolutely justified

therefore in holding that in the case at hand, the

circumstances from which any conclusion of the

respondent no.2 having killed the deceased was not fully

proved; the circumstances, if at all those existed, were

not conclusive in nature and even if all the facts were so

established, it would not be consistent only with the

hypothesis of the guilt and inconsistent with the

innocence of respondent no.2. The Trial court has

referred to the judgments of the Supreme Court in the

State of Uttar Pradesh Vs. Dr. Ravindra Prakash Mittal,

(1992) 3 SCC 300; Kanhai Mishra Vs. the State of

Bihar, AIR 2001 SC 1113; Mohd. Mannan Vs. the State Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

of Bihar, (2011) 5 SCC 317; Surendra Kumar Vs. the

State of UP, (2020) 14 SCC 750 and Udaipal Singh Vs.

the State of Uttar Pradesh, (1972) 4 SCC 142 . The Trial

court has also referred to the judgment in Matru @

Girish Chandra Vs. the State of Uttar Pradesh (1971) 2

SCC 75 and has reminded himself of the advisory that

merely because a person has absconded for sometime

does not necessarily lead to a positive conclusion of

guilty mind or culpable intent.

27. As noted above, we doubt the allegation of

the respondent no.2 having absconded for a brief while

as he was not found to be in house when the police first

went in search of him.

28. We, after giving anxious consideration to

the whole set of facts, even doubt that the investigation

in the case could have proceeded on even the theory of

last seen.

29. But, for the appellant and his family

members, no body has talked of respondent no.2 being Patna High Court CR. APP (DB) No.924 of 2022 dt.21-08-2023

present at the time when the deceased and his sister

were playing in the field.

30. For these reasons, we find that no

interference is required with the judgment and order of

acquittal, giving a clean chit to the respondent no.2.

31. The appeal is dismissed.

(Ashutosh Kumar, J)

( Partha Sarthy, J) rishi/-

AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          24.08.2023
Transmission Date       24.08.2023