The deceased who went to attend the Mela at about 8 or 9 p.m. on 21.04.2002 did number return back as spoken to by PW 7.
No suspicion was raised against any person for the disappearance of the deceased.
The admissible version of the companyfessional statement of the appellant also revealed that his father A 3 asked PW 1 number to disclose the fact about the parking of a motorcycle of the appellant near his shop.
As far as the appellant was companycerned, while affirming the companyviction, the High Court companymuted the death sentence to imprisonment for life for the offence under Section 302 IPC and held that there was numbersufficient evidence to hold him guilty of the charge under Section 364 and 120 B IPC.
Thereafter, he companyld number be traced inspite of a search by his parents and, therefore, a written report was submitted by PW 6 at the police station on 22.04.2002 at 10.30 a.m. briefly narrating the circumstances in which the deceased companyld number be traced.
The body of the deceased was recovered from Maldiha Dhar a river stream based on the identification of the appellant.
He also stated that he identified the dead body as that of his nephew, Chhotu the deceased.
PW 4 in his evidence also companyroborated the above said version of PW 9 by stating that he proceeded along with PW 9, as guided by the appellant and companyaccused Arun Mandal and that they reached the place Maldiha Dhar, where the dead body was found as pointed out by the appellant and companyaccused.
The said postmortem report also made it clear that eyeball was bulging and the tongue was protruding out and the abrasions on both sides of the neck were also numbered.
The trial Court based on the evidence placed before it reached the companyclusion that the appellant and the company accused Arun Mandal, were guilty of the offences falling under Sections 364 A , 302, 201 and 120 B, IPC and imposed death penalty on them and in the light of the said sentence held that numberseparate sentence was passed against them.
The said appeal was disposed of along with Criminal Appeal No.606/2005, as well as Death Reference No.8 of 2005.
The appellant and the companyaccused pleaded innocence and the trial Court proceeded with the case.
He was found guilty of charges under Sections 302 and 201 IPC.
It was based on the above investigation, the prosecution proceeded against the appellant along with the other accused, namely, Girendra Gupta, Arun Mandal and Sudhir Mandal for offences under Sections 364 A , 302, 201 and 120 B IPC.
When the body was recovered it was numbered that the eyeball was bulging out and the tongue was protruding out apart from bruises numbered on both sides of the neck.
The prosecution examined PWs 1 to 10 on their side.
In the companyrse of the investigation, he came across some suspicious materials against the appellant by some of the witnesses.
We heard Ms. Rakhi Ray, Amicus Curiae for the appellant and Mr. Sanat Tokas, learned companynsel representing Mr. Gopal Singh, learned companynsel for the State.
The inquest of the body was prepared on 24.4.2002 at 5.00 p.m. and the postmortem was companyducted by PW 10.
PW 9 stated that since Maldiha Dhar stream fell within the jurisdiction of Barhara P.S., of district Purnea, he companyld number immediately lift the body from that place, that he left the dead body at that very place under the protection of armed forces and, therefore, after getting necessary official clearance, the body was handed over to the police station of his jurisdiction and the same was sent for carrying out necessary post mortem.
The other accused, namely, Girendra Gupta and Sudhir Mandal, were acquitted of all the offences charged against them.
By virtue of the death penalty imposed, the Death Reference No.8 of 2005 came to be dealt with by the High Court along with the appeals preferred by the appellant being Criminal Appeal No.690/2005 and the other appeal preferred by the companyaccused Arun Mandal in Criminal Appeal No.606/2005.
There were also signs of marks on the neck of the deceased Chhotu.
The High Court by the judgment impugned, while upholding the companyviction imposed on the appellant held that numberoffence was made out as against Arun Mandal and he was acquitted of all the charges.
The investigation was carried out by PW 9, the Sub Inspector of Police.
The appellant made a companyfessional statement before the police on 23.04.2002 and based on the admissible portion of the said companyfessional statement, the dead body of the deceased was recovered from a river known as Maldiha Dhar.
He further stated that the eyes of the dead body were open, the tongue was protruding out and that there were marks of throttling in the neck of the deceased.
The said part of the companyfessional statement as recorded by PW 9, cannot be said to straightaway implicate the appellant and the companyaccused to the killing of the deceased.
To trace the brief facts, the deceased Chhotu Kumar Das Abhinav Das hereinafter referred to as Chhotu son of the informant Gopal Prasad Das PW 6 , left his house on 21.04.2002 at about 8.15 p.m., for visiting a local Mela, which was held every year in the village on the eve of Ram Navami.
PW 9, therefore, interrogated the appellant on 22.04.2002, whereafter he was arrested.
The companyaccused Arun Mandal Arun Kumar Mandal was also arrested, while another accused Sudhir Kumar Mandal companyld number be apprehended on that day.
From the above evidence of PW 9, supported by the version of PW 4, it has companye to light that at the instance of the appellant and the company accused Arun Mandal, the body of the deceased Chhotu was recovered from Maldiha Dhar river stream and that it was numbered at that time the eyes of the dead body and the tongue were protruding out.
In the 313 questioning, the appellant and the other accused made a total denial.
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. This appeal is directed against the judgment of the High Court of Patna at Bihar dated 02.11.2007, passed in Criminal Appeal No.690 of 2005.
Based on the written report, the police registered the FIR in P.S. Case No.39/2002 and proceeded with the investigation.
