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Patna High Court · body

2007 DIGILAW 1155 (PAT)

State Of Bihar v. Hardeo Mishra

2007-07-17

MADHAVENDRA SARAN

body2007
Judgment Madhavendra Saran, J. 1. This appeal by the State has been preferred against the judgment of acquittal dated 18.5.1991 passed in Sessions Trial No. 187/86 by Shri Mudrika Prasad, 1st Additional Sessions Judge, Patna. 2. The prosecution case, in short, is that on 15.3.1981 at 6.30 PM informant Sharda Devi gave fardbeyan before the police officer of Kankerbagh Police Station that she was married to accused Krishna Kant Mishra son of Hardeo Mishra (accused no. 1) about three and half years ago in the Court and after marriage she was living with her husband in Mohalla Kankerbagh Colony, Patna. Few days after marriage she gave birth to.a male child from her husband. This caused annoyance to her father-in-law Hardeo Mishra and brother-in-law Raj Kumar Mishra and they all started planning to do away with the child and to turn her out from the house. It is alleged that with that intention they began to torture her. At times she was assaulted also. They took her husband in confidence and they all assaulted and ousted her form the house and retained her child. Inspite of her best efforts she could not get the custody of the child. The informant along with her father Fagu Choudhary went to her Sasural for the custody of the child but the accused persons on some pretext or the other refused to hand over the custody and informant that the child has been sent to Ara where he was living with his grand mother. The informant suspected foul play at the hands of the accused persons and strongly believed that the child has been kidnapped by them for the purpose of murder. On the basis of fardbeyan of the informant, the police registered Kadam Kuan Kankerbagh Colony P.S. Case No. 189 of 1981 u/s. 364 of the Indian Penal Code (in short as the Code) and after completing investigation submitted charge sheet. It appears from the lower Court record that the learned Chief Judicial Magistrate, Patna by order dated 1.9.1981 rejected the charge sheet and ordered further investigation in the case. The matter was accordingly sent to the Investigating Officer for further investigation. It further appears from the lower Court record that the police sat over the matter and no step for further investigation was taken. The matter was accordingly sent to the Investigating Officer for further investigation. It further appears from the lower Court record that the police sat over the matter and no step for further investigation was taken. The learned Magistrate after hearing the informants counsel on the same charge sheet by order dated 29.8.1995 took cognizance u/s. 364 of the Code against the accused persons. After commitment the accused-respondents faced trial and were acquitted by judgment and order dated 18.5.1991. Against the said judgment of acquittal the State has preferred the present appeal before this Court. 3. It has been contended on behalf of the State that the learned Trial Court without applying his mind and also without appreciating the facts and circumstances of the case has passed the judgment of acquittal which has resulted in gross miscarriage of justice. It has also been contended that the judgment of acquittal is based on perverse reasons. 4. It appears from the lower Court record that the prosecution in support of the allegations examined six witnesses who are P.W. 1 Fago Choudhary, P.W. 2 Surendra Ram, P.W. 3 Sarda Devi, P.W. 4 Vijay Singh, P.W. 5 Satendra Kumar Singh and P.W. 6 Deo Nandan Prasad. Out of them P. Ws. 4, 5 and 6 are formal witnesses who have proved some papers. P.W. 4 has simply proved the affidavit, Exhibit-1. P.W. 5 has proved the case diary, Exhibit-2 and charge sheet, Exhibit-3. P.W. 6 has proved the fardbeyan, Exhibit-4 and the two petitioners filed by the informant, Exhibit-5 and 5/1. The prosecution has also brought on record the certified copy of the judgment, Exhibit-6 to show that a case of maintenance was filed by the informant against the accused-respondent and maintenance was allowed in that case. It was also contended by the informant that in that case it was held that she is legally wedded wife of Krishna Kant Mishra. 5. As mentioned above it is the case of the prosecution in the fardbeyan that few days after marriage the informant gave birth to a child named Manoj who at the time of recording of the fardbeyan was aged about two and half years. P.W. 3, the informant, in paragraph-3 of her deposition has stated that the child was born in the hospital but she is not in a position to say the exact date and time of birth of the child. P.W. 3, the informant, in paragraph-3 of her deposition has stated that the child was born in the hospital but she is not in a position to say the exact date and time of birth of the child. P.W. 2 has admitted in his deposition that at the time of birth of the child he was not present but according to this witness the child was born in the Sasural of Sarda Devi. He has admitted that in the month of December, 1978 the Chhathiari ceremony of the child was performed in which he participated but neither P.W. 1 nor P.W. 3 has said that Chhatti ceremony of the boy was also performed. No documentary evidence has been produced before the Court to show that the informant had given birth to a male child. No witness of the locality has also been produced to say that she had given birth to a male child. 6. It appears that from the fardbeyan Exhibit-4 that the boy was kidnapped about two weeks before the Makar Sankranti. Makar Sankaranti generally takes place on 14th January every year. It means that the alleged kidnapping was done either in the last week of December or in the first week of January. As mentioned above the police was informed about the incident on 15.03.1981. Now coming to the question of kidnapping I find that P.W. 1 has clearly stated that he had himself not seen the actual kidnapping but he heard about it. P.W. 2 who claims himself to be tenant by the side of the house of the father of the informant, says that he had seen the accused persons going with the victim boy at Patna Junction where he is a Taxi driver. He asked them as to where they were going, upon which they replied that the child was going with his Dadi to her Naihar. Thereafter this witness did not see the child. According to this witness at the time when he saw the child at Patna Junction, his father Krishna Kant Mishra was also with them. This witness informed the informant about the same on the next day. He had also advised the informant to go Ara and get the child traced out. It further appears from the evidence of this witness that the informant told that the boy had been done to death and buried somewhere. This witness informed the informant about the same on the next day. He had also advised the informant to go Ara and get the child traced out. It further appears from the evidence of this witness that the informant told that the boy had been done to death and buried somewhere. It appears from the lower Court record that the Investigating Officer of the case was not examined. Had he been examined he could have thrown some light on the prosecution case. There is no direct evidence of murder in this case. There is also no circumstantial evidence. The child was last seen in the company of his father, grand father and grand mother etc. It has not been established by the evidence on record that the custody of the child by the accused persons was for any unlawful or immoral purposes. Even if the prosecution case is accepted the child was with his father, who is also a natural guardian. 7. The evidence which has been adduced in this case by the prosecution, in my considered opinion, is not sufficient to establish that the victim boy was killed by the accused persons. The evidence which has been adduced in this case only raise some suspicion. Suspicion howsoever great cannot take the place of proof. There is nothing to show that the Trial Court has committed gross error in appreciation of the evidence and has acted with material irregularity. The Trial Court has rightly disbelieved the evidence of the prosecution witnesses. 8. In the aforesaid facts and circumstances, I find no merit in this appeal and it is, accordingly, dismissed. No cost.