Patna High Court
Tulsi Mandal vs The State Of Bihar on 14 November, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Rajesh Kumar Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.302 of 2022
Arising Out of PS. Case No.-163 Year-2016 Thana- BHAWANIPUR District- Purnia
======================================================
TULSI MANDAL Son of Ramphal Mandal Resident of Village - Math Tola
Askatiya, P.S.- Bhawanipur, Distt.- Purnea.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 942 of 2022
Arising Out of PS. Case No.-163 Year-2016 Thana- BHAWANIPUR District- Purnia
======================================================
SITARA KHATUN WIFE OF MD. NIHAL R/O VILLAGE- BHURKUNDA,
P.S.- BHAWANIPUR, DISTRICT- PURNEA
... ... Appellant/s
Versus
THE STATE OF BIHAR BIHAR
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 302 of 2022)
For the Appellant/s : Mr. N.K. Agarwal, Sr. Adv.
Mr.Dr. Bidhu Ranjan, Adv.
For the Respondent/s : Mr. Bipin Kumar, APP
(In CRIMINAL APPEAL (DB) No. 942 of 2022)
For the Appellant/s : Mr. Md. Mumtazuddin, Adv.
For the Respondent/s : Mr. Bipin Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 14-11-2024
1. Both the appeals have been heard together and
are being disposed of by this common judgment.
2. We have heard Shri N.K. Agarwal, the learned
Patna High Court CR. APP (DB) No.302 of 2022 dt.14-11-2024
2/16
Senior Advocate for the appellant / Tulsi Mandal and
Mr. Md. Mumtazuddin, the learned Advocate for the
appellant /Sitara Khatun. The State in both the
appeals has been represented by Mr. Bipin Kumar, the
learned APP.
3. Both the appellants have been convicted for the
offence under Sections 364/34, 302/34 and 201/34 of
the Indian Penal Code by judgment dated 23.02.2022
passed by the learned Additional Sessions Judge -III,
Purnea in Sessions Trial No. 62/2017 /Sessions Trial
No. 157/2017 /CIS No. 62/2017. By order dated
25.02.2022
, they have been sentenced to undergo
R.I. for ten years, to pay a fine of Rs. 25,000/- for the
offence under Section 364/34 IPC; R.I. for life, to pay
a fine of Rs. 25,000/- for the offence under Section
302/34 IPC and R.I for three years along with a fine
of Rs. 25,000/- for the offence under Section 201/34
IPC. The sentences were ordered to run concurrently.
4. One Sajid, five years old, became traceless and
after twelve days, his dead body was recovered from
Patna High Court CR. APP (DB) No.302 of 2022 dt.14-11-2024
under a banana tree covered with banana leaf.
5. A peculiar F.I.R was lodged by father of Sajid
(deceased), namely, Amrul (PW7) who alleged in his
written report lodged on 14.09.2016 that his son
(deceased) had become traceless since 03.09.2016. At
that time, he was residing at Delhi. An information
was provided to Bhawanipur Police Station about the
missing of his son. On further enquiry in his village
home, he learnt that Sitara Khatoon, one of the
appellants and a close relative was behind the
kidnapping. When pressure was mounted on the
aforenoted Sitara Khatoon, she admitted her guilt and
disclosed before the villagers that since the deceased
had seen her and the appellant / Tulsi Mandal in a
compromising position sometimes in the past,
therefore, the deceased was kidnapped, killed and
buried in the field under a banana tree. At the instance
of appellant / Sitara Khatun, the dead body in the
shape of a collection of skeleton was recovered. A
wearing apparel also was recovered from the site. He,
Patna High Court CR. APP (DB) No.302 of 2022 dt.14-11-2024
therefore, was sanguine that the appellants, because
of their immoral activities, had killed the deceased who
had witnessed their association in the past.
6. Based on the afore-noted written report, a case
vide Bhawanipur P.S. Case No. 163 of 2016 dated
14.09.2016 was registered for investigation for the
offence under Section 364, 302, 201 and 34 of the
IPC.
7. The F.I.R reveals that the information regarding
the occurrence was received in the police station on
14.09.2016 at about 10.15 A.M. The F.I.R was
registered at 3.30 P.M. Before the F.I.R. was
registered, the dead body (skeleton) is said to have
been recovered.
8. A look at the inquest report would make it very
obvious that the recovery was sometimes around
11.45 A.M. on 14.09.2016. It was only skeleton
without even a shred of muscle or anything which
would have made the identification of the skeleton to
be of the deceased any easy task. The inquest was
Patna High Court CR. APP (DB) No.302 of 2022 dt.14-11-2024
prepared by the police officer and countersigned by
Tabrez Alam (PW10) and Khurshid Alam (PW11).
9. The investigator of this case, namely, Amrendra
Kumar Amar (PW12) has deposed before the Trial
Court that after the F.I.R. was received in the police
station, the investigation was taken up by him. He
thereafter reached the place of occurrence where he
found the skeleton of the dead body of a child which
had earlier been discovered by the informant and his
associates. The place where the recovery was made
was the field of one Gopal Prasad Singh, who has not
been examined at the trial. In presence of witnesses,
the skeleton was seized. Even the skeleton was not in
one piece; rather the legs and the hands were
disjointed. The head was only in the form of a skull.
Such recovery was penned down and marked as
Ext- 5.
10. We have taken reference of all this only for the
reason of satisfying ourselves that the recovery was
not by the police at the instance of appellant / Sitara
Patna High Court CR. APP (DB) No.302 of 2022 dt.14-11-2024
Khatun as claimed by PW7 and others. In that view of
the matter, such recovery would not be admissible
under Section 27 of the Indian Evidence Act. We also
say this for the reason that by that time, appellant /
Sitara Khatun was not in the custody of the police
which is one of the essential pre-requisites for
triggering of the applicability of Section 27 of the
Evidence Act. That apart, we have found it absolutely
impossible for anybody to have traced the skeleton to
that of the deceased who was five years old.
11. The medico-logical expert examination of the
skeleton reflects that metopic sutures of the skull were
found to be fused. This is indicative of the skeleton of
a person who is between 2 to 4 years of age.
However, the sockets in the maxilla with twelve teeth
is indicative of being of a child of 20 to 30 months.
However, the permanent molars also were visible
which again places the age of the person concerned
between 6 to 8 years. The cranial vault had reached
adult dimensions which never happens before a person
Patna High Court CR. APP (DB) No.302 of 2022 dt.14-11-2024
attains the age of seven years. The smearing of ivory
like smooth substance over the skull, both on the outer
and inner surface, further indicated that the skeleton
was of a child of ten years of age. The skeleton was so
disjointed that no conclusion could be arrived at with
respect to the sexual character of the child. No injury
was found on the bones and, therefore, even the
cause of death could not be ascertained. In the opinion
of the medicological expert team, the exhibits were of
a child aged between 8 to 10 years and it was not
possible to determine the cause of death from the
available bones. Considering the condition of ligaments
and the tissues attached, the deceased would have
died between 10 to 30 days prior to such examination.
12. This report reveals two things. If the dead body
would have been buried inside the ground, the
decomposition would not have been to this extent
within 10 to 30 days. The place would have smelt foul
from a distance. It, therefore, appears that the
collection of bones with a skull but without any muscle
Patna High Court CR. APP (DB) No.302 of 2022 dt.14-11-2024
attached to it, was something which was lying
underground for quite a while and which therefore,
could not be linked to kidnapping and murder of the
deceased who was only six years of age. The other
aspect which becomes very clear is that it is not known
as to how such recovery was made. Whether it was at
the instance of the appellants or the villagers had
stumbled upon such collection of bones, remained
unknown. What is very stark is that the recovery was
made much prior to the F.I.R. being registered. This is
also evident from the narration made in the written
report which reflects that the skeleton was recovered
and only thereafter the F.I.R. was registered.
13. There is nothing on record to indicate any report
to the police about missing of the child. The child
became traceless on 03.09.2016 while his father
(PW7) was still in Delhi. Whether he disappeared from
Delhi or from his village home is left to the imagination
of the prosecution. However, what could be gathered
from his deposition is that on learning about the
Patna High Court CR. APP (DB) No.302 of 2022 dt.14-11-2024
disappearance of his son, enquiry was made by him
and it was later learnt that Sitara who stayed in the
same house in the village home was responsible for
the same. She was subjected to societal pressure
whereafter it came to light that she, in association with
appellant / Tulsi Mandal, had done the act.
14. This piece of evidence is absolutely unacceptable
for the reason that such extra judicial confession is not
recorded anywhere and the fact forms part of the
prosecution case only through the mouth of the
witnesses. The mother of the deceased has not been
examined.
15. Where was she ?
16. The husband of appellant / Sitara Khatun was in
Delhi at the time when the deceased became traceless.
Later, after twelve days, the case was lodged. This
development only signifies that there was some
suspicion on a co-resident, namely, Sitara and then a
story was weaved that a five year old boy (deceased)
had seen Sitara and Tulsi Mandal in a compromising
Patna High Court CR. APP (DB) No.302 of 2022 dt.14-11-2024
position and, therefore, Sitara and Tulsi Mandal
kidnapped the boy and killed him. This story again
does not inspire the confidence and trust as being the
correct story for two reasons. Even if a five year old
boy had seen the amorous relationship between the
two appellants, he would not have been in a position to
understand the quality of that act to consider it to be
amorous and then speak out to others. Secondly, it is
not known whether the deceased was residing in the
same household at the village home. Since nothing has
been said about the actual residence of the deceased
and his mother, one is only left with speculation and
nothing more.
17. This takes us to the evidence of the investigator
again. In his cross -examination, PW12 has further
confirmed that before the F.I.R. was registered, the
skeleton had already been recovered. The seizure list
was prepared when Sitara was not present at that
place. Would this then be admissible under Section 27
of the Evidence Act ? The answer is simple no. Even
Patna High Court CR. APP (DB) No.302 of 2022 dt.14-11-2024
then, the statement of confession of Sitara was
recorded by PW12 on 14.09.2016, almost
contemporaneously at about 2.30 P.M. The
investigator has also taken the statement of Gopal
Singh in whose filed the recovery was made.
18. Md. Hannan (PW2) and one Moti Prasad (PW3)
told the investigator that the story of any immoral
association between the two appellants was a tissue of
falsehood. Nobody had ever seen the appellants
mixing around or knowing each other. In fact, on the
contrary, Tulsi Mandal was a person of religious
dispensation and used to carry on banana cultivation
away from the village. He also dealt in the sale and
purchase of grains and in that connection, he was a
regular visitor to the villager.
19. Incidentally, Md. Hannan (PW2) has also been
declared hostile.
20. On a careful consideration of the evidence of the
father of the deceased (PW7), we have found that he
has all along insisted upon the information which he
Patna High Court CR. APP (DB) No.302 of 2022 dt.14-11-2024
and his associates could gather from putting pressure
on Sitara Khatun. He had but no idea about Tulsi
Mandal.
21. There is yet another fact which is very stark and
which needs be noticed carefully is that Sitara Khatun
resided in the same house. She is the wife of the
brother-in-law of PW7. Sitara and the mother of the
deceased are sisters-in-law. With this connection, it is
difficult to believe the story projected by the
prosecution.
22. Md. Sharif (PW1), a relative of the family and
Md. Alam (PW5), the maternal grandfather of the
deceased, have also only pandered to the suspicion on
the appellants as also the information received by
them about Sitara having made disclosure regarding
the occurrence.
23. As noted above, Md. Hannan (PW2), Moti Singh
(PW3), Naresh Mandal (PW4) and Md. Jasim have
turned hostile, expressing complete ignorance about
the occurrence.
Patna High Court CR. APP (DB) No.302 of 2022 dt.14-11-2024
24. Same vague statements have been made by Md.
Sharif (PW1), a co-villager, who has talked about the
same story of the killing because of the fear of the
immoral relationship between the appellants going
public.
25. From the evidence of Tabrez Alam (PW10) and
Khurshid Alam (PW11), the two seizure list witnesses,
we do not get to know anything contrary than our
observation that recovery was made before the F.I.R.
was registered and whether it was at the instance of
Sitara remains unknown.
26. There are sufficient number of factors which
make us doubt the entire story viz. (I) no disclosure
about the residential status of the deceased in the
immediate past ;(ii) non-examination of the mother of
the victim (iii) the recovery made supposedly at the
instance of Sitara which remains completely unproved
and; (iv) the skeleton remains being so disjointed that
no conclusion could be derived from the medicological
examination of the same.
Patna High Court CR. APP (DB) No.302 of 2022 dt.14-11-2024
27. All this signifies that the story spun by the
prosecution is not fit to be believed.
28. We are at a loss to understand as to how the
Trial Court could link the collection of bone to that of
the deceased in the absence of any other definitive
conclusion regarding those skeletons. According to the
investigator, those collected bones were sent for
forensic examination but till the time the investigator
was examined as one of the last witness in the trial,
the report had not been received. Though the FSL
report is on record and about which reference has
been made in the Trial Court judgment, but on perusal
of the same, we find that it was only Fax
communication from the laboratory, which with the
passage of time had become so faint that it was
absolutely unreadable. The Trial Court adopted a
curious and shortcut approach of holding that the
report confirmed the prosecution case.
29. We deprecate such casual observations by a
Trial Court, especially when it concerns a case of
Patna High Court CR. APP (DB) No.302 of 2022 dt.14-11-2024
extreme importance as a child had become traceless
and a relative and a stranger were being attributed
with the allegation of kidnapping and killing.
30. We have also noted our reservation about the
motive of the appellants to kill the deceased. A five
year old boy would not be able to understand any
relationship between two strangers and even if he
does, he would not be able to communicate it to
anybody so as to get a bad name in public. Why at all
then, when Sitara had been residing in the same
household under the same roof would undertake such
a misadventure. Was it then not only a guesswork and
Sitara being pressurized to admit her guilt ?
31. All this makes us doubt the very fabric of the
prosecution.
32. The prosecution has not been able to prove the
case to any extent whatsoever, much less beyond any
reasonable doubts.
33. We, therefore, set aside the judgment of
conviction and order of sentence.
Patna High Court CR. APP (DB) No.302 of 2022 dt.14-11-2024
34. Both the appellants are in jail. They are directed
to be released from jail forthwith, if not required or
wanted in any other case.
35. Both the appeals are allowed.
36. The interlocutory application/s, if any, also
stands disposed of.
37. Let a copy of this judgment be communicated to
the Superintendent of concerned jail for record and
compliance.
38. Let the records of these appeals be returned to
the concerned Trial Court.
(Ashutosh Kumar, J)
( Rajesh Kumar Verma, J)
sunilkumar/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 18.11.2024
Transmission Date 18.11.2024
