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CASE NO.: Appeal (crl.)  923 of 1998

PETITIONER: Yakub Mian

RESPONDENT: State of Bihar

DATE OF JUDGMENT: 21/04/2004

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT: J U D G M E N T

O R D E R

       It is the prosecution case that in the intervening night of 6th  and 7th June, 1987, deceased Mumtaz Mian was murdered by the  appellant and two others. According to the prosecution, the  deceased was attacked when he was sleeping on the roof of his  house which was witnesses by his two sisters who were examined  as PWs.3 and 10. It is the further case of the prosecution that after  hearing the cries of said sisters of the deceased, PW-8 Hamid  Mian, a neighbour, came to the spot and these two eye-witnesses  named the appellant and two others as the assailants. PW-6  Ambika Choudhary, Chowkidar of village Kaur Bathua within the  jurisdiction of Police Station Uchakagaon in Gopalganj District  allegedly heard the galata in the early morning and went to the spot  where the incident had taken place where he was unable to find out  from PWs.3 and 10 who were the assailants. By that time the  Inspector of Police of the above-said Police Station on hearing the  news of the murder came to the spot. He recorded the statement of  PW-6 which was treated as a complaint and a case was registered  on the said basis. After completing the investigation, a challan was  filed only against the appellant only. During the course of trial, the  trial court having found some material against two other accused  persons summoned them under Section 319 of the Code of  Criminal Procedure. But after the trial, the court found no material  to convict them, hence they were acquitted while accepting the  evidence of PWs.3, 6, 8 and 10 convicted the appellant for an  offence punishable under Section 302 IPC.         In an appeal filed by the appellant before the high Court of  Judicature at Patna, the High Court disbelieved the evidence of  PWs.3 and 10 the two sisters who allegedly witnessed the attack.  So far as evidence of PWs.6 and 8 are concerned, the High Court  did not rely upon the same to base a conviction, but surprisingly on  the basis of certain clothes seized from the house of the appellant  allegedly at his instance the court found the appellant guilty and  confirmed the conviction and sentence imposed by the trial court.         In this appeal it is pointed out to us that the clothes which  according to the prosecution contained blood when sent to the  serologist, no blood of human origin was found on the said clothes.  That apart the learned counsel also pointed out that this  incriminating circumstance of seizing of the blood stained clothes  was not put to the appellant when his statement was recorded  under Section 313 of Cr.P.C., therefore, the said circumstance  could not have been relied upon by the High Court to convict the  appellant.         Learned counsel appearing for the State, however, contended  assuming that evidence of PWs.3 and 10 are unbelievable, the  evidence of PWs.6 and 8 was sufficient to convict the appellant.

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He also submitted that the failure to put the circumstance of the  seizure of blood stained clothes to the accused when his statement  was recorded under Section 313 of the Code has not prejudiced the  appellant, hence, the High Court was justified in convicting the  appellant.         Having heard the learned counsel for the parties and perused  the records, we are of the opinion that the High Court was justified  in rejecting the evidence of PWs.3 and 10 for more than one  reason. So far as evidence of PW-8 is concerned, in our opinion, it  cannot be accepted because of his conduct though it is stated that  PW-8 came to the spot on hearing the cries of PWs.3 and 10 and  came to know of the names of the assailants still this witness did  not tell anybody else nor did he go to the police to make a  complaint. According to his evidence after hearing of the incident  from PWs.3 and 10 he went away from the spot. This is not the  normal conduct of a human being in a situation like that.         So far as PW-6 is concerned, his evidence is of no assistance  for the prosecution. He is the village Chowkidar who early in the  morning heard some galata in the house of the deceased, hence, he  went there. He said that he saw Pws.3 and 10 sitting near the body  of the deceased in a shocked condition, hence, he could not  ascertain the names of the assailants from them. He on the basis of  certain suspicion had mentioned in his statement to the police that  the appellant was a man of bad character and because the deceased  wife was beautiful he had committed the murder. We do not think  this piece of evidence also be made the basis of conviction. Even  otherwise the High Court did not base the conviction on the  evidence of PWs.6 and 8.          This leaves us to consider the only piece of evidence relied  upon by the High Court to confirm the conviction of the appellant,  that is the seizure of blood stained clothes of the accused at his  instance. As contended by the learned counsel for the appellant  from the material on record there is nothing to show that the blood  stains found on the clothes were of human origin. That apart this  incriminating circumstance of seizure of these clothes which  according to the prosecution were worn by the appellant at the time  of attack, was not put to the accused when his statement was  recorded under Section 313 of the Code which certainly has caused  prejudiced to the accused because this is the sole basis on which  the High Court has convicted the appellant. Therefore, in our  opinion, this circumstance also cannot be relied on to base a  conviction.          For the reasons stated above, we are of the opinion that the  courts below were not justified in accepting the prosecution case to  convict the appellant. The judgments of the courts below are set  aside. The appellant is acquitted for all the charges. We are told  that the appellant is on bail, if so, his bail bonds shall stand  discharged.