Md. Wasiqur Rahman @ Wasique and Others Vs. the State of Bihar - Court Judgment

SooperKanoon Citationsooperkanoon.com/1151780
CourtPatna High Court
Decided OnApr-07-2014
Case NumberCriminal Appeal (SJ) No. 415 & 443 of 2002
JudgeDHARNIDHAR JHA
AppellantMd. Wasiqur Rahman @ Wasique and Others
RespondentThe State of Bihar
Excerpt:
1. the three appellants were charged with committing offence under section 364 of the indian penal code by an order passed on 15.04.1999 by the learned 2nd additional sessions judge, araria, in sessions trial no. 179 of 1998 and by judgment dated 06.08.2002, passed by the learned presiding officer, fast track court-i, araria, they were held guilty of committing the said offence. the appellants were heard on sentence and each of them was directed to suffer rigorous imprisonment for ten years. the judgment of conviction and the order of sentence passed on the appellants is being challenged in the present two appeals one preferred by solitary appellant md. wasiqur rahman @ wasique and the other by the remaining two, namely, md. hassan and md. sahid. 2. the prosecution case emanated from ext. 1, the fardbeyan of most. tara devi, the mother of victim/deceased vidyanand singh, which was recorded on 08.02.1997, 5.30 p.m. in which she stated that on 27.01.1997, appellants md. hassan and md. sahid came to her house and asked the deceased vidyanand singh that a panchayati had been convened in the garage of appellant md. wasiqur rahman @ wasique and he was required to attend it. the deceased vidyanand singh readily left his house to accompany the two appellants and he did not come back in spite of the two appellants md. hassan and md. sahid had come back. the mother of the deceased stated that she searched her son and also met persons to gather information as to the whereabouts of her son and in that connection she had met p.w. 2, vidya nand singh who stated to her that he had seen her son at rampur chowk which was also stated to the mother of the deceased by p.w. 4, amirchand bahardar. in course of the search for her son, the informant was also told that he had been seen purchasing fish from p.w. 3, prem lal bahardar and accordingly, she met p.w. 3 also who confirmed the fact that her son along with the two appellants, md. hassan and md. sahid, had purchased fish from him and during that course the deceased had stated to him that he was going to participate in a panchayati which had been convened in the garage of appellant wasiqur rahman @ wasique. the lady-informant stated that that was the last occasion the deceased had been seen alive and, thereafter, he disappeared and none of the two appellants md. hassan or md. sahid or even md. wasiqur rahman @ wasique could account for either the disappearance or any other incident which could have occurred with the deceased vidyanand singh. the lady suspected that her son had been murdered by the three appellants in connivance with each other. 3. on the basis of fardbeyan of most. tara devi (not examined, since dead), the first information report of the case (ext.3) was drawn up and the investigation was taken up by p.w.7, shiv charan prasad who stated that after having taken up the investigation he, being accompanied by the informant, came to the place of occurrence from his police station and inspected the house of the deceased and also examined other persons acquainted with the facts and circumstances of the case. he recorded the statements of those persons, i.e., the witnesses in the case diary and after finding materials sufficient submitted charge-sheet sending up the three appellants for their trial by the court. 4. the defence of the appellants was of complete innocence and also of false implication. it was suggested by the appellants, as appears from paragraph 4 of the impugned judgment that the deceased was a veteran criminal who had also been convicted of offences under sections 25 and 27 of the arms act as also of offence under section 395 of the indian penal code which conviction had been upheld by this court in appeal. it was suggested that the veteran criminal that he was, he was wanted in many cases, and he was absconding and was evading the process of law. suggestion was that on account of his criminal antecedent, the deceased could have earned many enemies and he could have been made prey to an act of revenge or settling scores by any of his criminal enemies. 5. in support of the charges, the prosecution examined a total number of seven witnesses. p.w. 1 was laxami bahardar who was the brother-in-law of the deceased and he was simply stating the facts as if he had gone out after the disappearance of the deceased to search him and in that course he also suspected that the deceased had either been killed or made to disappear by the three appellants as he had been taken away from the house, as per the information, by the appellants md. hassan and md. sahid. so far as the other witnesses on that point are concerned, the wife of the deceased p.w. 5, namely, janki devi also stated that while the deceased was taking his meal, the two appellants md. hassan and md. sahid came to his house, to inform him that a panchayati was likely to be held in the garage of md. wasiqur rahman @ wasique and he was required to attend it. accordingly, he accompanied the two appellants and did not return and probably, was either killed or made to disappear by the appellants so as to be presumed murdered. the other evidence of being last seen in the company of appellants md. hassan and md. sahid was coming from p.w. 2, vidya nand singh who had stated that he had seen the deceased in the company of appellants md. hassan and md. sahid at rampur chowk and he enquired from the deceased vidyanand singh as to where he was headed to upon which he stated to him that he along with the two appellants md. hassan and md. sahid was going to his friends place, i.e., appellant wasiques house at the zero mile as he had been called there and he proceeded in the company of the two appellants for that place. the other evidence is of amirchand bahardar (p.w. 4) who stated that he had also seen the deceased as was stated by bidya nand singh (p.w. 2) at rampur chowk in the company of two appellants md. hassan and md. sahid where he was found at the tea shop of one kare (not examined) and he also stated the same facts to p.w. 4, amirchand bahardar as were stated by the deceased to vidya nand singh (p.w. 2) that he was going to the cycle garage of appellant md. wasiqur rahman @ wasique and from that day the deceased had become traceless. as regards the other evidence on last seen, i.e., the evidence of p.w. 3, prem lal bahardar, in the first information report it has been mentioned that during the search for her son the informant lady had met p.w. 3 after being told that his son had been seen purchasing some fish from p.w. 3, prem lal bahardar and p.w. 3 stated that on the date of occurrence at about 1 p.m. the deceased came to araria hat where he was selling fish and he was accompanied by the deceased vidyanand singh who stated to him that he was brought from his house by the two appellants md. hassan and md. sahid and that he was going to zero mile for participating in the panchayati in the garage of appellant wasiqur rahman @ wasique and that from that day the deceased had never been seen or heard of. the other evidence of p.w. 6 was on the fact that the two appellants md. hassan and md. sahid had come at the house of vidyanand singh, the deceased, and at that time the deceased was taking meal at the verandah of his house when he was informed by the two appellants that he was required by appellant md. wasiqur rahman @ wasique to come to his garage for a panchayati and accordingly, the deceased accompanied appellants md. hassan and md. sahid and went away from his house. it appears from the very evidence of p.w. 6 that he was the nephew of the deceased and he further stated that during the search of the deceased, he also accompanied his grandmother most. tara devi to the house of the two appellants md. hassan and md. sahid and at two different places where he could state that the deceased had been seen at rampur chowk as also at araria hat while purchasing fish. 6. as regards the other witnesses, p.w. 8 debu sah was declared hostile. 7. on the basis of the above evidence the learned trial judge held that circumstances were so strongly creating a chain that they were unerringly pointing towards the guilt of the appellants which was ruling out very hypotheses of his innocence and thus, came to the conclusion that they were guilty of committing the offence under section 364 of the indian penal code. 8. while perusing the impugned judgment and the evidence with the assistance of the learned senior counsel, namely, shri n. k. agrawal who appeared for appellant md. wasiqur rahman @ wasique as also by shri ajay kumar singh, advocate who appeared for appellants md. hassan and md. sahid as also by shri sujit kumar singh, learned additional public prosecutor, what i felt was that the learned trial judge was reading the evidence in such a way as to raising inferences which could not have been raised by any reasonable person. undisputedly, it was a case based on circumstantial evidence. none had really seen that the deceased had been either murdered or he had been caused to disappear so as to presumed to be murdered. the evidences of witnesses which i have just noticed, even being accepted to be true on their face value, lead to the only conclusion that the deceased had been taken away from his house by md. hassan and md. sahid and that he was seen at two different places, firstly, at rampur chowk and secondly, at araria hat while purchasing fish from p.w. 3. it appears that p.ws. 2 and 4 were making enquiries from the deceased as to where he was headed to and he responded by pointing out that he was going to his friends garage, i.e., of appellant md. wasiqur rahman @ wasique for participating in a panchayati and further that he had been brought from his house by the remaining two appellants. but, the most important question which remained unanswered and which appeared missed by the learned trial judge was as to what were the issues for which the panchayati had been convened and why and how the deceased was required to attend that panchayati. in the evidence of eight witnesses, there is nothing which could indicate that he was in the capacity either of a panch or of an accused or a defendant that the deceased had been invited to participate in the panchayati. if the panchayati was there then witnesses ought to have come to say that indeed a panchayati had been convened and the attendance of the deceased was inevitable and as such, was the requirement of calling him to attend it. the other thing which appears unanswered is as to who were the panches who had been invited for taking part in the deliberations of the panchayati. there is a complete void as regards these questions and the court finds that these were vital issues of facts which required to be decided by producing satisfactory evidence. 9. if the court was to believe the evidence of p.ws. 2 and 3, what appears is that appellant md. wasiqur rahman @ wasique was described to them by the deceased as his friend. these witnesses and others also do not say that there was any element of animosity or bad relation, so as to raising an inference or suspecting even, that the deceased could have been invited into a trap so as to be killed and disposed off. there is nothing on record to show that the appellants had any motive for calling him from his house and taking him to a particular place either for liquidating him or causing his disappearance by any mode of disposal. these are some of the vital issues which the learned trial judge does not appear identifying while hearing the case and deciding it through the impugned judgment. moreover, there is no evidence that the deceased and the two appellants md. hassan and md. sahid had gone further from araria hat which was the last place where the three had been seen together and further that the deceased in the company of md. hassan and md. sahid had arrived at the garage of the third appellant md. wasiqur rahman @ wasique and that he had been seen there together with the appellants. if there was no evidence leading to the inference that the deceased could have moved beyond the point of araria hat up to the zero mile, as appears from the evidence, then how the trial judge could hold that indeed the deceased had been trapped into a conspiracy so as to be killed or disposed off in a manner causing him to be presumed to be murdered. 10. these are some of the circumstances which appeared from the very evidence and which, to my mind, have created some discomforting questions which required to be answered by the prosecution. the motive was not there and as i have noted, there was no evidence as to what was the purpose of holding the panchayati and ultimately, why the deceased had been invited into it and lastly, the deceased had not been seen or found to have arrived at zero mile in the garage of md. wasiqur rahman @ wasique. 11. the law on circumstantial evidence is not that merely on the feeble evidence of last seen the accused could be convicted. the evidence of last seen could be one of the links in a chain of circumstances and that could be used only when the chain of circumstances is complete which leads to the irresistible conclusion that it could be the accused and accused alone, who could have committed the offence and further, that there was no plausible explanation which could justify the probability of the accused being innocent. if the chain is complete with stronger acceptable circumstances and that unerringly pointed out towards the guilt of the accused ruling out all the probability of the accused being innocent, then only the accused could be held guilty. here there were many important links which were not even created by factual materials so as to complete the chain. the motive was absent, the reason for holding the panchayati was not there, the purpose or the requirement of the deceased to appear or attend the panchayati was not there and again there was no evidence showing that he had arrived on the invitation of the appellants. these are some of the missing links in the chain of circumstances which raise a serious doubt as regards the participating of the appellants in commission of the offence and in that view, the judgment of conviction and the order of sentence appears not justifiable under the facts of the case. 12. in the result, both the appeals are allowed. the judgment of conviction and the order of sentence are hereby set aside. the appellants are acquitted of the charges they had been found guilty of. they are on bail. the appellants shall stand discharged from the liabilities of their respective bonds.
Judgment:

1. The three appellants were charged with committing offence under Section 364 of the Indian Penal Code by an order passed on 15.04.1999 by the learned 2nd Additional Sessions Judge, Araria, in Sessions Trial No. 179 of 1998 and by judgment dated 06.08.2002, passed by the learned Presiding Officer, Fast Track Court-I, Araria, they were held guilty of committing the said offence. The appellants were heard on sentence and each of them was directed to suffer rigorous imprisonment for ten years. The judgment of conviction and the order of sentence passed on the appellants is being challenged in the present two appeals one preferred by solitary appellant Md. Wasiqur Rahman @ Wasique and the other by the remaining two, namely, Md. Hassan and Md. Sahid.

2. The prosecution case emanated from Ext. 1, the Fardbeyan of Most. Tara Devi, the mother of victim/deceased Vidyanand Singh, which was recorded on 08.02.1997, 5.30 P.M. in which she stated that on 27.01.1997, appellants Md. Hassan and Md. Sahid came to her house and asked the deceased Vidyanand Singh that a Panchayati had been convened in the garage of appellant Md. Wasiqur Rahman @ Wasique and he was required to attend it. The deceased Vidyanand Singh readily left his house to accompany the two appellants and he did not come back in spite of the two appellants Md. Hassan and Md. Sahid had come back. The mother of the deceased stated that she searched her son and also met persons to gather information as to the whereabouts of her son and in that connection she had met P.W. 2, Vidya Nand Singh who stated to her that he had seen her son at Rampur Chowk which was also stated to the mother of the deceased by P.W. 4, Amirchand Bahardar. In course of the search for her son, the informant was also told that he had been seen purchasing fish from P.W. 3, Prem Lal Bahardar and accordingly, she met P.W. 3 also who confirmed the fact that her son along with the two appellants, Md. Hassan and Md. Sahid, had purchased fish from him and during that course the deceased had stated to him that he was going to participate in a Panchayati which had been convened in the garage of appellant Wasiqur Rahman @ Wasique. The lady-informant stated that that was the last occasion the deceased had been seen alive and, thereafter, he disappeared and none of the two appellants Md. Hassan or Md. Sahid or even Md. Wasiqur Rahman @ Wasique could account for either the disappearance or any other incident which could have occurred with the deceased Vidyanand Singh. The lady suspected that her son had been murdered by the three appellants in connivance with each other.

3. On the basis of Fardbeyan of Most. Tara Devi (not examined, since dead), the First Information Report of the case (Ext.3) was drawn up and the investigation was taken up by P.W.7, Shiv Charan Prasad who stated that after having taken up the investigation he, being accompanied by the informant, came to the place of occurrence from his police station and inspected the house of the deceased and also examined other persons acquainted with the facts and circumstances of the case. He recorded the statements of those persons, i.e., the witnesses in the case diary and after finding materials sufficient submitted charge-sheet sending up the three appellants for their trial by the Court.

4. The defence of the appellants was of complete innocence and also of false implication. It was suggested by the appellants, as appears from paragraph 4 of the impugned judgment that the deceased was a veteran criminal who had also been convicted of offences under Sections 25 and 27 of the Arms Act as also of offence under section 395 of the Indian Penal Code which conviction had been upheld by this Court in appeal. It was suggested that the veteran criminal that he was, he was wanted in many cases, and he was absconding and was evading the process of law. Suggestion was that on account of his criminal antecedent, the deceased could have earned many enemies and he could have been made prey to an act of revenge or settling scores by any of his criminal enemies.

5. In support of the charges, the prosecution examined a total number of seven witnesses. P.W. 1 was Laxami Bahardar who was the brother-in-law of the deceased and he was simply stating the facts as if he had gone out after the disappearance of the deceased to search him and in that course he also suspected that the deceased had either been killed or made to disappear by the three appellants as he had been taken away from the house, as per the information, by the appellants Md. Hassan and Md. Sahid. So far as the other witnesses on that point are concerned, the wife of the deceased P.W. 5, namely, Janki Devi also stated that while the deceased was taking his meal, the two appellants Md. Hassan and Md. Sahid came to his house, to inform him that a Panchayati was likely to be held in the garage of Md. Wasiqur Rahman @ Wasique and he was required to attend it. Accordingly, he accompanied the two appellants and did not return and probably, was either killed or made to disappear by the appellants so as to be presumed murdered. The other evidence of being last seen in the company of appellants Md. Hassan and Md. Sahid was coming from P.W. 2, Vidya Nand Singh who had stated that he had seen the deceased in the company of appellants Md. Hassan and Md. Sahid at Rampur Chowk and he enquired from the deceased Vidyanand Singh as to where he was headed to upon which he stated to him that he along with the two appellants Md. Hassan and Md. Sahid was going to his friends place, i.e., appellant Wasiques house at the zero mile as he had been called there and he proceeded in the company of the two appellants for that place. The other evidence is of Amirchand Bahardar (P.W. 4) who stated that he had also seen the deceased as was stated by Bidya Nand Singh (P.W. 2) at Rampur Chowk in the company of two appellants Md. Hassan and Md. Sahid where he was found at the tea shop of one Kare (not examined) and he also stated the same facts to P.W. 4, Amirchand Bahardar as were stated by the deceased to Vidya Nand Singh (P.W. 2) that he was going to the cycle garage of appellant Md. Wasiqur Rahman @ Wasique and from that day the deceased had become traceless. As regards the other evidence on last seen, i.e., the evidence of P.W. 3, Prem Lal Bahardar, in the First Information Report it has been mentioned that during the search for her son the informant lady had met P.W. 3 after being told that his son had been seen purchasing some fish from P.W. 3, Prem Lal Bahardar and P.W. 3 stated that on the date of occurrence at about 1 P.M. the deceased came to Araria Hat where he was selling fish and he was accompanied by the deceased Vidyanand Singh who stated to him that he was brought from his house by the two appellants Md. Hassan and Md. Sahid and that he was going to zero mile for participating in the Panchayati in the garage of appellant Wasiqur Rahman @ Wasique and that from that day the deceased had never been seen or heard of. The other evidence of P.W. 6 was on the fact that the two appellants Md. Hassan and Md. Sahid had come at the house of Vidyanand Singh, the deceased, and at that time the deceased was taking meal at the verandah of his house when he was informed by the two appellants that he was required by appellant Md. Wasiqur Rahman @ Wasique to come to his garage for a Panchayati and accordingly, the deceased accompanied appellants Md. Hassan and Md. Sahid and went away from his house. It appears from the very evidence of P.W. 6 that he was the nephew of the deceased and he further stated that during the search of the deceased, he also accompanied his grandmother Most. Tara Devi to the house of the two appellants Md. Hassan and Md. Sahid and at two different places where he could state that the deceased had been seen at Rampur Chowk as also at Araria Hat while purchasing fish.

6. As regards the other witnesses, P.W. 8 Debu Sah was declared hostile.

7. On the basis of the above evidence the learned trial Judge held that circumstances were so strongly creating a chain that they were unerringly pointing towards the guilt of the appellants which was ruling out very hypotheses of his innocence and thus, came to the conclusion that they were guilty of committing the offence under Section 364 of the Indian Penal Code.

8. While perusing the impugned judgment and the evidence with the assistance of the learned senior counsel, namely, Shri N. K. Agrawal who appeared for appellant Md. Wasiqur Rahman @ Wasique as also by Shri Ajay Kumar Singh, advocate who appeared for appellants Md. Hassan and Md. Sahid as also by Shri Sujit Kumar Singh, learned Additional Public Prosecutor, what I felt was that the learned trial Judge was reading the evidence in such a way as to raising inferences which could not have been raised by any reasonable person. Undisputedly, it was a case based on circumstantial evidence. None had really seen that the deceased had been either murdered or he had been caused to disappear so as to presumed to be murdered. The evidences of witnesses which I have just noticed, even being accepted to be true on their face value, lead to the only conclusion that the deceased had been taken away from his house by Md. Hassan and Md. Sahid and that he was seen at two different places, firstly, at Rampur Chowk and secondly, at Araria Hat while purchasing fish from P.W. 3. It appears that P.Ws. 2 and 4 were making enquiries from the deceased as to where he was headed to and he responded by pointing out that he was going to his friends garage, i.e., of appellant Md. Wasiqur Rahman @ Wasique for participating in a Panchayati and further that he had been brought from his house by the remaining two appellants. But, the most important question which remained unanswered and which appeared missed by the learned trial Judge was as to what were the issues for which the Panchayati had been convened and why and how the deceased was required to attend that Panchayati. In the evidence of eight witnesses, there is nothing which could indicate that he was in the capacity either of a Panch or of an accused or a defendant that the deceased had been invited to participate in the Panchayati. If the Panchayati was there then witnesses ought to have come to say that indeed a Panchayati had been convened and the attendance of the deceased was inevitable and as such, was the requirement of calling him to attend it. The other thing which appears unanswered is as to who were the Panches who had been invited for taking part in the deliberations of the Panchayati. There is a complete void as regards these questions and the Court finds that these were vital issues of facts which required to be decided by producing satisfactory evidence.

9. If the Court was to believe the evidence of P.Ws. 2 and 3, what appears is that appellant Md. Wasiqur Rahman @ Wasique was described to them by the deceased as his friend. These witnesses and others also do not say that there was any element of animosity or bad relation, so as to raising an inference or suspecting even, that the deceased could have been invited into a trap so as to be killed and disposed off. There is nothing on record to show that the appellants had any motive for calling him from his house and taking him to a particular place either for liquidating him or causing his disappearance by any mode of disposal. These are some of the vital issues which the learned trial Judge does not appear identifying while hearing the case and deciding it through the impugned judgment. Moreover, there is no evidence that the deceased and the two appellants Md. Hassan and Md. Sahid had gone further from Araria Hat which was the last place where the three had been seen together and further that the deceased in the company of Md. Hassan and Md. Sahid had arrived at the garage of the third appellant Md. Wasiqur Rahman @ Wasique and that he had been seen there together with the appellants. If there was no evidence leading to the inference that the deceased could have moved beyond the point of Araria Hat up to the zero mile, as appears from the evidence, then how the trial Judge could hold that indeed the deceased had been trapped into a conspiracy so as to be killed or disposed off in a manner causing him to be presumed to be murdered.

10. These are some of the circumstances which appeared from the very evidence and which, to my mind, have created some discomforting questions which required to be answered by the prosecution. The motive was not there and as I have noted, there was no evidence as to what was the purpose of holding the Panchayati and ultimately, why the deceased had been invited into it and lastly, the deceased had not been seen or found to have arrived at zero mile in the garage of Md. Wasiqur Rahman @ Wasique.

11. The law on circumstantial evidence is not that merely on the feeble evidence of last seen the accused could be convicted. The evidence of last seen could be one of the links in a chain of circumstances and that could be used only when the chain of circumstances is complete which leads to the irresistible conclusion that it could be the accused and accused alone, who could have committed the offence and further, that there was no plausible explanation which could justify the probability of the accused being innocent. If the chain is complete with stronger acceptable circumstances and that unerringly pointed out towards the guilt of the accused ruling out all the probability of the accused being innocent, then only the accused could be held guilty. Here there were many important links which were not even created by factual materials so as to complete the chain. The motive was absent, the reason for holding the Panchayati was not there, the purpose or the requirement of the deceased to appear or attend the Panchayati was not there and again there was no evidence showing that he had arrived on the invitation of the appellants. These are some of the missing links in the chain of circumstances which raise a serious doubt as regards the participating of the appellants in commission of the offence and in that view, the judgment of conviction and the order of sentence appears not justifiable under the facts of the case.

12. In the result, both the appeals are allowed. The judgment of conviction and the order of sentence are hereby set aside. The appellants are acquitted of the charges they had been found guilty of. They are on bail. The appellants shall stand discharged from the liabilities of their respective bonds.