D.N. Patel, J. - (1.) THIS appeal has been preferred against the judgment and order of conviction and sentence passed by the Additional Sessions Judge, Fast Track Court -V, Deoghar, in Sessions Case No. 96 of 2002, whereby these two appellants have been convicted for the offence punishable under Section 302 of the I.P.C. to be read with Section 34 thereof for life imprisonment and they are also made liable to pay a fine of Rs. 50,000/ - each and in case of default, further rigorous imprisonment of two years have been awarded. These two appellants have also been convicted for 10 years rigorous imprisonment for the offence punishable under Section 364 of the I.P.C. to be read with Section 34 thereof and fine of Rs. 10,000/ - and in case of default, further rigorous imprisonment for six months have been awarded. These two appellants have also been punished for the offence punishable under Section 201 of the I.P.C. to be read with Section 34 thereof for two years rigorous imprisonment. The case of the prosecution is, that - On 15.01.2002 at 10.45 A.M., the informant Ranendra Kumar Anthony (P.W. -9) gave written report to police that his son Virendra Anthony @ Babu aged about 15 years old was missing from his house since 5.01.2002 and information to which is already been given to the police. It is further alleged that on 13.01.2002 one Safique Sheikh of village - Dorhi, informed him, that on 5.01.2002 he had seen Bokhal Sheikh and Charka Sheikh of village - Dorhi taking his son on Riksha from Mina Bazar to Pathakhati. On this information, the informant started searching. It was further alleged that the informant daughter was married with Nasruddin of village Dorhi and on 8.01.2002, the informant send his son -in -law and one Rahim Sheikh to Delhi in search of his son. Then informant recalled Rahim Sheikh from there and intimated Nasruddin to remain in Delhi to search his son. Thereafter on 14.01.2002, Safique Sheikh came to the house of the informant and informed him that his villager Bokla Sheikh and Charka Sheikh were talking to the villagers Rosan Bibi, Jahida Bibi, Asima Bibi etc. that Nasruddin is uselessly searching him at Delhi as they have already murdered him and concealed his dead body in the agricultural field and they have also threatened them not to disclose this fact to anybody else. This fact was also supported by the informant daughter Baby. It was further alleged by the informant that he is under full confident that accused Bokhla Sheikh and Charka Sheikh had kidnapped his son to commit his murder and concealed his dead body.
(2.) TWELVE witnesses were examined by the prosecution: One witness was examined by the Defence: It is submitted by the counsel appearing for the appellants that the learned trial court has not properly appreciated the major omissions, contradictions and improvements in the depositions of the prosecution witnesses. Moreover, it is submitted by the counsel for the appellants that there is no eye witness of the whole incident. All the witnesses are the hearsay witnesses. The so called incident has taken place on 5th January, 2002, whereas the F.I.R. was lodged on 15th January, 2002. It is further submitted by the counsel for the appellants that the case of the prosecution is based on extra judicial confession, but, that is also not proved by the prosecution witnesses, even otherwise also, it is a weakest piece of evidence. There is enmity between the P.W. -3 and the accused -1 as stated in Paragraph -6 of his deposition. Not a single prosecution witness ever stated in the Court that on which date, these accused had made extra judicial confession. Looking to the depositions of the prosecution witnesses, it appears that these two appellants, after committing the murder, had announced in the village that they have committed the murder of the deceased and all the prosecution witnesses and other persons were also informed by these two appellants that they shall not give this information to any one. This is the highest case of the prosecution, whereas, otherwise, there is no link established between these two accused and the murder. No weapon has been recovered, even the 'last seen together theory' has also not been established. There is no proximity between the 'last seen together' and the murder. The statement made before the learned Magistrate under Section 164 of the Cr.P.C. by the witnesses and the depositions in the Court are quite different and there is a material improvement in their deposition. Thus, the whole case of the prosecution is based upon only the hearsay witnesses and the prosecution has not proved the offence of murder beyond reasonable doubt. So far as the motive is concerned, it is also not established by the prosecution whatsoever. No motive is mentioned in the F.I.R. nor the statement under Section 164 of the Cr.P.C. is made by the witnesses before the Magistrate. Neither any money was demanded by these two appellants, nor the prosecution witnesses are saying that they had seen on some day that these two appellants are quarreling with each other about some money. One of the witnesses has also stated in cross examination that P.W. -5 has narrated that Rupees Two Lakhs were deposited in the name of the deceased, and therefore, these two appellants have committed the murder of the deceased. There is no head and tail match in this case by the prosecution because the father, mother, brother and sister, everybody is alive of the deceased and if at all there is any deposit in the name of the deceased, how it can be obtained by these two appellants. It appears that absolutely a false, bogus and concocted case has been lodged against these two appellants. There is no direct evidence whatsoever against these two appellants and the case is based upon the circumstances and no circumstance has been proved beyond reasonable doubt nor the chain of circumstance has also been completed by the prosecution, and hence, the judgment and order of conviction and sentence passed by the learned trial court deserves to be quashed and set aside.
(3.) IT is submitted by the A.P.P. that the case of the prosecution has been proved beyond reasonable doubt and these two appellants have committed murder of the deceased and the dead body was recovered at the behest of these two appellants from the field of appellant No. 1. It is also submitted by the A.P.P. that there are several prosecution witnesses, who have stated before the trial court that these two appellants were fighting with each other in the village and these witnesses has heard them that they have committed murder of the deceased, to that effect, there is a statement under Section 164 Cr.P.C. before the P.W. -12 also, which are at Ext. 5 to Ext. 5/3. Moreover, the depositions given by P.W. -11 - Investigating Officer, is corroborative to the depositions of other prosecution witnesses. This aspect of the matter has been properly appreciated by the learned trial court and hence, this appeal may not be entertained by this Court.;