Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 611 (PAT)

Lal Babu Sah v. State Of Bihar

2000-04-20

B.N.SINGH, N.PANDEY

body2000
Judgment B. N. SINGH "NEELAM", J. 1. This appeal is so preferred by the appellants Lal Babu Sah, Kaushal Kumar Singh and Upendra Singh against the judgment of conviction and sentence so passed by the learned 4th Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 81/91 by virtue of which the accused-appellants have been convicted under Secs. 376 and 302 read with Sec. 34 of the Indian Penal Code and after hearing on the point of sentence they have been directed as to undergo rigorous imprisonment for life. 2. The prosecution was so launched against the appellants on the basis of the Fardbeyan marked as Ext. 2 so given by the first informant of this case Nazir Das figuring as P.W. 7 detailing that on 25-12-89 his daughter Sunita Kumari aged about 15-16 years (since deceased) along with her younger brother Sanjay Das (P.W. 5) had gone to the flour mill of one Choudhary Sah for grinding of wheat and maize and because of the brother and sister not returning till 3 p.m. the informant went to the flour mill of Choudhary Sah in search of them where he could locate his son Sanjay Das (PW 5) standing there alone and on query Sanjay Das (P.W. 5) narrated the informant (P.W.7) with regard to Sunita being taken away by one of the accused Lal Babu Sah on the plea of her being called by the informants wife and could not return thereafter. Suspecting foul game, the informant started searching his daughter and when, as per the prosecution story, he reached near one closed flour mill at a distance of 25-30 yards from the flour mill of Kuldip Rai, he claimed to hear some sound coming from the side of the closed flour mill and the informant located one man standing at the door of the said mill and the said man standing was identified to be Raj Kumar Singh who started fleeing away seeing the informant. Soon thereafter, as per the prosecution case, all the three accused-appellants came out of the said mill and started fleeing away. It is on hulla that the prosecution witnesses came who also identified the accused persons fleeing away from the place of occurrence. Thereafter P.W. 7 along with other witnesses claim to go inside the aforesaid flour mill of Kuldip Rai and found Sunita lying dead in a naked position. It is on hulla that the prosecution witnesses came who also identified the accused persons fleeing away from the place of occurrence. Thereafter P.W. 7 along with other witnesses claim to go inside the aforesaid flour mill of Kuldip Rai and found Sunita lying dead in a naked position. A piece of cloth was so found inserted in her mouth and a pair of Chappal was also found at the spot. Further case of the prosecution is that the matter was reported to the Surpanch figuring in course of trial as P.W. 8 and also to the Mukhiya. They could thus guess that Sunita Kumari, the daughter of the informant, was gang raped by the accused-appellants and then murdered where her dead body was so left abandoned in the flour mill of Kuldip Rai. At the instance of the Mukhiya and Surpanch the accused-appellants were also apprehended being kept detained at the Darwaza of the Mukhiya and next morning being handed over to the Investigating Officer of this case. On the basis of the Fardbeyan so given, it transpires that Hajipur P. S. Case No. 56/89 was so registered and after completion of the investigation chargesheet was so submitted in connection with this matter. One of the accused, namely, Raj Kumar Singh (absconding) could not face the trial in Sessions Trial No. 81/91. After taking cognizance of the offence it further transpires that case record was so committed to the Court of session when the charge was so framed against the accused-appellants under Sec. 376 and 302/34 of the Indian Penal Code on 16th August, 1991 for the accused appellants committing rape and thereafter causing death of Sunita Kumari, daughter of the first informant Nazir Das on 25th of December, 1989 in the evening hours in village Jahangirpur, P. S. Raghopur district Vaishali in furtherance of common intention. The accused-appellants abjured the guilt and claim to be tried. 3. In course of trial as many as 10 proesecution witnesses have been examined. Two D. Ws. have also been examined on behalf of the defence. The inquest report so prepared by the Investigating Officer is proved and marked as Ext. 3. There is also seizure of a pair of Chappal so found at the place of occurrence and the seizure list so prepared is proved in couse of trial and marked as Ext. 4. Post mortem report so prepared by Dr. The inquest report so prepared by the Investigating Officer is proved and marked as Ext. 3. There is also seizure of a pair of Chappal so found at the place of occurrence and the seizure list so prepared is proved in couse of trial and marked as Ext. 4. Post mortem report so prepared by Dr. U. N. Jha (P.W. 9) is marked as Ext. 5. P.W.1 is a formal witness who has proved formal F.I.R. marked as Ext. 1. P.Ws. 2, 4 and 6, in course of trial, it transpires are declared hostile. P.Ws. 3, 7 and 8 are on the point with regard to their knowing about the details of the occurrence from the first informant (P.W. 7) and also locating the accused-appellants fleeing away from the flour mill of Kuldip Rai at the relevant time and in the said mill locating the dead body of theinformants daughter Sunita Kumari. P.W. 9 is the medical officer conducting post mortem examination on the dead body of Sunita Kumari whereas P.W. 10 is the Investigating Officer of this case. Out of two D.Ws. examined i.e. Munshi Mahto and Bashistha Sah they are on the point that when these two witnesses produced on behalf of the defence did arrive at the mill of Kuldip Rai, they could not find any of the accused persons fleeing away from the said mill. The learned Court below, it transpires after evaluating the evidence available on record has come to the conclusion that though the present case was based on circumstantial evidence but the chain of evidence so produced was so much complete in itself that no other hypothesis can be drawn except the guilt of the accused-appellant committing the offence coming under the purview of Sec. 376 and 302 read with Sec. 34 of the Indian Penal Code and taking that view the learned Court below has thus convicted and sentenced accused-appellants as detailed above and against the said impugned judgment of conviction and sentence so passed, thus this Criminal Appeal is so preferred under Sec. 374 (2) of the Code of Criminal Procedure. 4. 4. Learned counsel for the appellants by challenging the impugned judgment of conviction and sentence so passed has submitted that the trial Court has erred in convicting the accused-appellants and it cannot be said with all certainty that in course of trial the prosecution had succeeded to prove the charge up to the hilt. It is pointed out that accused-appellants have been falsely implicated at the instance of the Surpanch and Mukhiya of the village because of the village rivalry and by the plain reading of the Fardbeyan it will transpire that the first informant of this case was amply utilised as a tool in the hand of Surpanch and Mukhiya where for the whole night as per the prosecution story the accused-appellants were detained and the Chowkidar being sent to give information at the police station when next morning the Investigating Officer arrived at the place of occurrence and the Fardbeyan is recorded. This had thus given much of time to the Mukhiya as to falsely implicate the appellants in connection with the present case in which there is no eye witness and the sequence of events so put does not complete the chain of circumstances and because of also major contradiction so cropping up in the evidence of material prosecution witnesses, the whole prosecution case becomes doubtful. There cannot be said to be any extra judicial confession so made by the appellants before the villagers and taking the worst view, even accepting the same for the arguments sake that can very well be said to be a weak piece of evidence on the basis of which the accused-appellants would not have been convicted. The girl Sunita Kumari might have been raped as also coming in the medical report and would have also sustained injuries which resulted into her death but since there is no cogent material on the record as to establish the guilt of the accused-appellants, the impugned judgment of conviction and sentence so passed thus require interference and as to meet the ends of justice, as submitted, the impugned judgment rather be set aside and the accused-appellants be acquitted. 5. 5. Lastly it is also submitted that the interference in the impugned judgment of conviction is thus so required because of the Fardbeyan is so given after second thought at the instance of the Mukhiya as a result of which the appellants have been falsely implicated and in support of his this contention learned counsel for the appellants has referred to the depositions of P.Ws. 3, 7 and 8. It is also submitted that two main witnesses so cited in the chargesheet on behalf of the prosecution have not been examined and that time of occurrence as per the evidence of P.W. 5 was in the evening hours and in the darkness it was not possible for the informant or the other witnesses as to identifiy the persons said to have been coming out of the said flour mill of Kuldip Rai and that also makes the prosecution case suspicious. The chain of evidence in the present case which is based on circumstantial evidence is also not complete and in such circumstance the benefit of the same is to be given to the accused-appellants. 6. In support of this contention that in the present case which is so based on circumstantial evidence, prosecution has failed as to link all the chains to establish the guilt of the accused-appellants and in this connection learned counsel for the appellants has relied upon a decision reported in 1980 Cri LJ 965 : ( AIR 1980 SC 1382 ) (State (Delhi Admn.) V/s. V. C. Shukla) and has submittedthat for circumstantial evidence to furnish evidence of guilt it has to be such as it cannot be explained on any other reasonable hypothesis except the guilt of the accused, which has so not been established by the prosecution and particularly reference is made to paragraph 38 of the reported case. On the same point reference is also made to 1990 Cri LJ 2289 : ( AIR 1990 SC 2140 ) (Kishore Chand V/s. State of H. P.) and 1979 Cri LJ 566 : ( AIR 1979 SC 826 ) (S. P. Bhatnagar V/s. State of Maharashtra). 7. Learned Addl. On the same point reference is also made to 1990 Cri LJ 2289 : ( AIR 1990 SC 2140 ) (Kishore Chand V/s. State of H. P.) and 1979 Cri LJ 566 : ( AIR 1979 SC 826 ) (S. P. Bhatnagar V/s. State of Maharashtra). 7. Learned Addl. P. P. on the other hand has submitted that the evidence available on record, oral and documentary, has been threadbare discussed by the learned Court below and it is after evaluating the same that it has come to the conclusion with regard to the prosecution proving the charge under which the appellants stood for trial fully proved and for such heinous crime so committed that is the informants daughter firstly being raped and then murdered, rather a lenient view has been taken and the accused-appellants have been sentenced as to undergo rigorous imprisonment for life. In nutshell on behalf of the State it is pointed out that there is consistency in the statement of the first informant (P.W. 7) with that of P.W. 5 Sanjay Das who was accompanying his sister at the moment. It is also pointed out that while making extra judicial confession the appellants had confessed their guilt. They are also seen to have been fleeing away from the place of occurrence particularly by P.W. 7 the first informant and P.W. 3 Shivjee Rai. Even P.W. 4 who has been declared hostile has stated with regard to three young persons fleeing away from the said abandoned flour mill of Kuldip Rai. The evidence of medical officer (P.W. 9) fully supports the prosecution version. By referring to injury No. 3 it is further pointed out that the said injury relates to the girl subjected to sexual assault, even spermatozoa was so found and with regard to the injury Nos. 1 and 2 they were also found which goes to show that the girl was done to death after being raped. Attention is also drawn by the learned Addl. P. P. to the seizure of a pair of Chappal for which seizure list was so prepared duly marked as exhibit and the said Chappal was of one of the accused appellants Kaushal Kumar Singh as also confessed by him in course of extra judicial confession so made. Attention is also drawn by the learned Addl. P. P. to the seizure of a pair of Chappal for which seizure list was so prepared duly marked as exhibit and the said Chappal was of one of the accused appellants Kaushal Kumar Singh as also confessed by him in course of extra judicial confession so made. It is pointed out that on no count it can be said that it is at the instance of the Mukhiya that the present accused-appellants have been falsely implicated and such suggestion was not so even put to the material prosecution witnesses from the defence side in course of trial. In that light, hence the prayer is that since the impugned judgment of conviction and sentence so passed, in the background of the fact and circumstance and the material so available on record do not require any interference, the present criminal appeal so preferred rather be dismissed by upholding the findings of the judgment under appeal. 8. Learned Addl. P.P. in context of all the reported cases so cited on behalf of the appellants has submitted that they are quite distinguishable in the background of the facts and circumstances of the present case because as detailed in paragraph 25 of the judgment under challenge learned Additional Sessions Judge has given the details of the chain of circumstances so coming leading to the exclusive conclusion with regard to the present accused-appellants committing the offences under which they stood charged. 9. After hearing both sides lawyers, we have carefully gone through the evidence available on record, oral and documentary. This will not be out of place to mention that the learned counsel for the appellants has not challenged with regard to the lady being raped and subsequently done to death but it has been vehemently argued on behalf of the appellants that the accused-apellants were in no way involved in the commission of the acts coming under the purview of Sec. 376/302 read with Sec. 34 of the Indian Penal Code. 10. True it is that there is no eye witness to the scene and the case is based on the circumstantial evidence. 10. True it is that there is no eye witness to the scene and the case is based on the circumstantial evidence. As regards extra judicial confession so made before the Surpanch and others by the accused-appellants as also coming from the mouth of the material prosecution witnsses that itself can be said to be a weak piece of evidence unless being corroborated by other cogent material. In the instant case by looking into paragraph 25 of the judgment it transpires that the learned Court below has given the details of 12 such circumstances leading to conclude that no other hypothesis than the guilt of the accused thus can be drawn of the accused-appellants committing the offencescoming under the purview of Sec. 376/302 read with Sec. 34 of the Indian Penal Code. Those 12 circumstances completing the chain of link as detailed in the judgment at paragraph 25 need not be repeated. After going through the same, however, we come to the conclusion that in the instant case because of P.Ws. 5 and 7 supporting the prosecution case corroborating the statements coming from their mouth in support of the prosecution case so launched being also supported by P.W. 3 Shivji Rai who also claimed to have seen the accused-appellants fleeing away, the prosecution story also being fully supported by P.W. 9 the medical officer and a pair of Chappal of one of the accused being also seized from the place of occurrence; the circumstances so relied upon are of conclusive character leaving no other hypothesis than the guilt of the accused-appellants. Thus under the present circumstance, as detailed above, no other inference can be drawn than the accused-appellants participating and committing the offences coming under the purview of Sec. 376/302 read with Sec. 34 of the Indian Penal Code, the incriminating chain of evidence as also detailed in paragraph 25 of the impugned judgment, in our considered opinion, is complete and the chain of circumstances so put, unequivocally points to the guilt of the accused-appellants and exclude any other hypothesis consistent with their innocence. The reported cases thus so cited on behalf of the appellants as rightly suggested by the learned Addl. P. P. are distinguishable in the instant case. 11. Having analysed the entire evidence on record, thus we uphold the judgment of conviction and sentence so passed by the learned Court below. The reported cases thus so cited on behalf of the appellants as rightly suggested by the learned Addl. P. P. are distinguishable in the instant case. 11. Having analysed the entire evidence on record, thus we uphold the judgment of conviction and sentence so passed by the learned Court below. Since there is no merit in the criminal appeal, the same is hereby dismissed. 12. Appellants 1 and 3 (Lal Babu Sah and Upendra Singh) are, it transpires, given the privilege of bail, during the pendency of this appeal on 27-6-95 and 2-6-99 respectively. They are directed as to surrender before the learned Court below at once as to meet the sentence so awarded.Appeal dismissed.