Paras Awadhiya and Others vs State

R.N. Prasad, J.—The appellants have been convicted for the offence u/s 302/34 of the Indian Penal Code and they have been sentenced to undergo rigorous imprisonment for life vide judgment and order dated 23.3.1987 passed by 2nd Additional Sessions Judge, Gopalganj in Sessions Trial No. 65/19 of 1986. The name of counsel for the appellants appears on daily cause list but no one appeared for the appellants. Thus, in view of the decision in the case of Bani Singh and ohters Vs. State of U.P., we heard counsel for the State and are disposing the appeal.

The prosecution case is that on 7.11.1984 at 9 A.M. once Hari Shankar Nonia gave his fardbeyan that on previous night he along with his maternal grand mother, Rukminia Devi, was sleeping in Palani. A dhibri was burning in the light he saw the appellants going out of the Palani. He tried to awake his maternal grand mother but she did not speak. He brought the Dhibri and found that her head was crushed and brain substance had come out and it was bleeding. He raised alarm. His wife and Deep Narain Awadhiya came there. He narrated the story to them.

On the aforesaid fardbeyan, Ext. 6, formal first information report, Ext.3, was drawn and investigation was taken up. On completion of investigation charge sheet was submitted and on receipt of the charge sheet in the court case was committed to the court of sessions for trial. The trial court convicted the appellants as indicated above.

The defence of the appellants was that they were innocent and were falsely implicated in this case. The death was caused due to fall of some heavy substance.

The prosecution in support of its case examined eight witnesses out of whom P.W. 3 is informant, who claimed to have seen the appellants running away. P.W. 5 has proved formal first information report, Ext.3. P.W. 4 and P.W. 6 are formal witnesses, who proved certain documents. P.W. 1 and P.W. 2 claimed to have reached at the place of occurrence on hearing alarm raised by P.W. 3. P.W. 7 is a doctor, who held postmortem over the dead body. P.W. 8 is investigating officer. There is no eye witness to the occurrence.

P.W. 3 stated that he and his maternal grand mother were sleeping in Palani. At about mid night he woke up on hearing some sound. He saw the appellants running away. He tried to awake his maternal grand mother but she did not wake up. He found that her head was crushed and brain substance had also come out. Except the evidence of P.W. 3, there is no other evidence on the record to show that any one has seen the appellants running away. There is no evidence on the record to show that any one had seen the appellants coming towards Palani though it has come in evidence that there are houses of other persons near the place of occurrence. In the fardbeyan it has been stated that on alarm raised by him only wife of the informant and Deep Narain Awadhiya came, which creates doubt as to why other persons did not come. Moreover, it appears from the evidence of P.W. 3 itself that the appellants had motive to commit murder of Deep Narain but nothing has come on the record that the appellants had motive to commit murder of Rukminia Devi. In a case of circumstantial evidence motive plays a role but in the instant case no motive has been alleged for committing murder of Rukminia Devi. Therefore, the evidence of P.W. 3 itself becomes suspicious. Furthermore, it is a case of circumstantial evidence and in a case of circumstantial evidence, chain of circumstances must be completed to come to a conclusion that the appellants alone had committed the crime but such chain is absent in this case. In the circumstances we are of the view that it is not safe to uphold the conviction of the appellants. Accordingly, this appeal is allowed. The order of conviction and sentence are hereby set aside and the appellants are discharged from the liability of their bail bonds.