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2008 DIGILAW 216 (PAT)

Hardeo Rai v. State Of Bihar

2008-01-31

SHAILESH KUMAR SINHA, SHIVA KIRTI SINGH

body2008
Judgment Shiva Kirti Singh and Shailesh Kumar Sinha JJ. 1. The sole accused/appellant is aggrieved by the judgment and order dated 18.2.2003/22.2.2003 whereby he has been convicted for the offence under Sections 302 and 201 of the Indian Penal Code and for the charge under Section 302 IPC he has been awarded life imprisonment and fine of Rs. 5,000/- and in default simple imprisonment for a further period of six months. For the offence under Section 201 IPC he has been awarded Rl for five years and a fine of Rs. 5,000/- and in default simple imprisonment for a further period of three months. 2. The prosecution case is based upon fardbeyan of PW-9, Raj Narain Sah, father of the deceased, Vijay Kumar Sah, aged about five years recorded on 1.7.1996 at 9:40 A.M. It discloses that on that date at about 8:30 in the morning the informant came to know that a dead and putrefied body of a child had been found on west of the village and north of railway line near the field of one Parsu Ram Singh. With some co-villagers and his brother the informant went and saw the dead body. With the help of pant, vest and hair available on the head of the deceased he identified the dead body to be that of his son. Vijay Kumar Sah who had been missing from near the house since about 4:00 P.M. of 24.5.1996. In the fardbeyan it was disclosed that the informant, son of Kundan Sah resident of Village, Sonia, PS-Daudpur, District, Saran works in Delhi in Hotel Samrat and in their own house he and his other brothers, four in number live together. In that house his co-villager, Indradeo Rai and his nephew, Lakhan Rai used to live on a rental of Rs. 350/- per month. In spite of demand they failed to pay the rental in time leading to default for ten months and as a result the informant had got the house vacated from those tenants. Just before Holi festival, Hardeo Rai, the appellant who is brother of tenant Indradeo Rai had come to Delhi to meet his brother. By that time the marriage of informants niece had been finalized. Tilak was scheduled for 25.5.1996 and marriage for 30.5.1996. Just before Holi festival, Hardeo Rai, the appellant who is brother of tenant Indradeo Rai had come to Delhi to meet his brother. By that time the marriage of informants niece had been finalized. Tilak was scheduled for 25.5.1996 and marriage for 30.5.1996. The appellant had at that time threatened that when the informant would go to the village home he will perform shradha and not marriage. On 23.5.1996 the informant and his brother, Chandrika Sah came to village home. On 24.5.1996 when they were busy preparing for Tilak, at about 4:00 P.M. his son, Vijay Kumar Sah aged five years who was wearing a vest and a half pant suddenly disappeared. They searched all around at their level and when the boy could not be found, the informants brother, Gautam Sah informed the Daudpur Police Station about missing of the boy on 25.5.1996 and they continued to search for the boy. Since beginning the informant and his family had doubts against the appellant, Hardeo Rai because of threat given at Delhi and when they made an attempt to go towards the house of Hardeo Rai, they were chased by Hardeo Rai at the point of knife and were abused. The informant made a strong claim that on account of enmity, Hardeo Rai, the appellant had killed his son. Vijay Kumar Sah and hidden the dead body at some place under husk and after finding opportune moment he had thrown the same in an open field. 3. After recording the fardbeyan Sub-Inspector of Police, B.K. Prasad of Daudpur Police Station appears to have conducted the investigation. He prepared the inquest report of the dead body which has been marked as Exhibit-8. He sent the dead body for post mortem examination and after completing investigation submitted charge-sheet against the appellant on 30.7.1996. 3. After recording the fardbeyan Sub-Inspector of Police, B.K. Prasad of Daudpur Police Station appears to have conducted the investigation. He prepared the inquest report of the dead body which has been marked as Exhibit-8. He sent the dead body for post mortem examination and after completing investigation submitted charge-sheet against the appellant on 30.7.1996. It appears that the informant was not satisfied with the investigation conducted by the I.O. and hence a protest petition was filed in the Court below and on 26.8.1996 statement of four of the witnesses including the informant, PW-9 as well as PWs-2, 3 and 4 were recorded under Section 164 of the Cr.P.C. A perusal of the aforesaid statements under Section -164 of the Cr.P.C. discloses that the aforesaid four witnesses have made a consistent claim that just before the disappearance of the deceased boy they had seen the appellant also at the place where sweets were being prepared for Tilak ceremony and he was also not seen there when the boy was found missing. They have also claimed that after recovery of the dead body the police went to the house of the appellant and from there husk (Bhusa) was recovered by the police which had blood stains and bore the stench and foul smell of decayed body. The prosecution has not examined the I.O. as a witness but has tendered in evidence the entire case diary written by him in course of investigation as Exhibit-7. 4. After cognizance, the case was committed to the Court of Sessions. The appellant pleaded not guilty to the charges and faced trial. The defence of the accused-appellant appearing from the trend of cross-examination and arguments is of false implication on account of mere suspicion. 5. The prosecution in order to prove the charges has examined altogether 11 witnesses. PW-1, Meena Devi is wife of the informant and mother of the deceased boy. PW-2, Phuleshwari Devi is mother of PW-1. PW-3, Kundan Sab is father of the informant and grand father of the deceased. PW-4, Prabhawati Devi is an aunt of the deceased boy and wife of PW-7, Gautam Sah. PW-5, Vishwanath Singh is a hearsay witness who saw the dead body soon after it was located in the village. He has claimed that particles of husk were present on the dead body indicating that it has been concealed somewhere under the pile of husk. PW-5, Vishwanath Singh is a hearsay witness who saw the dead body soon after it was located in the village. He has claimed that particles of husk were present on the dead body indicating that it has been concealed somewhere under the pile of husk. PW-6, Badri Prasad Gond is also an independent witness like PW-5. He has claimed to have seen the boy near the place of occurrence just before he was found missing and he also claimed to have seen the appellant there. He has deposed that the informant had received a letter from unknown person making demand of ransom. The witness had also read that letter which had been given to the police before the recovery of the dead body. PW-7, Gautam Sah is an uncle of the deceased. PW-8, Bageshwar Singh is a co-villager. Like PW-5 he also came on hulla and saw the dead body and noticed particles of husk(Bhusa) over the same. PW-9, Raj Narain Sah is the informant and father of the deceased boy. PW-10, Dr. Deepak Kumar held autopsy on the dead body on 1.7.1996. He has proved post mortem report as Exhibit-3. PW-11, Haresh Ojha is a formal witness who has proved fardbeyan as Exhibit-4. Statements under Section 164 Cr.P.C. as Exhibit-6 series, the case diary as Exhibit-7 and the Inquest report as Exhibit-8. 6. PWs 1, 2, 3, 4, 7 and 9 are all family members and close relations of the deceased. From their evidence it is clearly established that a brother and a relation of the appellant were tenants in the house of the informant and his brothers at Delhi. Due to non-payment of rent for several months those tenants were evicted from the house and when the appellant went to Delhi after such eviction, he had threatened the informant and his family members with dire consequences and had used the threatening words that when they would come to the village for marriage of informants niece, there would be no marriage but Shradha (rituals after death). Some witnesses, particularly lady witnesses have also deposed how they were threatened by the appellant with a view to prevent them from searching for the victim boy. This part of the prosecution evidence has not been challenged in cross-examination. Some witnesses, particularly lady witnesses have also deposed how they were threatened by the appellant with a view to prevent them from searching for the victim boy. This part of the prosecution evidence has not been challenged in cross-examination. These witnesses have also deposed in Court that they had seen the appellant sitting at the place where the victim boy was playing just before his disappearance. Such claim of the witnesses has been challenged by asking question in cross-examination as to whether they had made such claim before the police or not. The statements of these witnesses recorded in the case diary are part of Exhibit-7 and the same show that such statement was not recorded by the I.O. under Section 161 Cr.P.C. Exhibit-7 further shows that even after noticing that the husk (Bhusa) was present over the dead body and the house of the appellant according to inspection of place of occurrence by I.O. was only at a distance of 200 yards, the I.O. made no efforts to search the house of the accused-appellant for any incriminating material including foul smelling husk when in the Fardbeyan specific blame was put on the appellant for the alleged occurrence. It was in this background that the protest petition filed by the informant becomes relevant. The conduct of the I.O. was not deemed fair and impartial and hence soon after submission of charge-sheet, P.Ws-2, 3, 4 and 9 were examined under Section 164 Cr.P.C. Those statements are Exhibit-6 series and have already been noticed earlier. Those four witnesses have categorically claimed in their statement under Section 164 Cr.P.C. that they had seen the appellant near the place of occurrence before the disappearance of the deceased boy. They have also claimed that the I.O. went to the house of the appellant and seized foul smelling husk from there. The husk also showed traces of blood. There is no seizure list on record nor has the I.O. anywhere mentioned in the case diary regarding search of the house of the sole accused after recovery of the dead body of the victim boy and after recording of the Fardbayan. 7. The evidence of the witnesses also shows that the dead body was recovered from a field by the side of the railway track in the village itself. The witnesses have indicated that the house of the appellant is not far from that place. 7. The evidence of the witnesses also shows that the dead body was recovered from a field by the side of the railway track in the village itself. The witnesses have indicated that the house of the appellant is not far from that place. Exhibit-7, the case diary shows that I.O. had inspected the place where the dead body was found and has mentioned its distance from the house of the appellant only as 200 yards. it has also come in the evidence that the dead body was emitting foul smell as the flesh had almost disappeared. Clearly, a dead body in such a foul state could not have been carried from any long distance without being noticed by the people. Lastly, it has come in the evidence that after the recovery of the dead body the appellant had left the village and was not found there even by the I.O. 8. In the light of aforesaid materials coming through deposition of witnesses there is no difficulty in holding that the deceased boy aged about five years was kidnapped from near his house at about 4.00 P.M. of 24.5.1996 and his dead body was recovered from a field in the village itself on 1.7.1996 in the early morning hours leading to recording of the Fardbayan at 9.40 A.M. It is also found that the boy had been killed at least 10 to 15 days prior to the post mortem examination as per the evidence of the Doctor, P.W.-10. The dead body had been kept concealed in a heap of husk because the witnesses clearly noticed the presence of husk on the dead body. The prosecution has also established the threat given by the appellant to the informant at Delhi and the boy was kidnapped one day prior to the Tilak ceremony of daughter of the P.W.-7, Gautam Sah i.e. a niece of the informant. The kidnapped boy was ultimately killed and after the body was kept concealed for several days, it was ultimately disposed of by throwing in a field near the railway track in the village. It is also established that after the recovery of the dead body and lodging of the Fardbeyan the appellant, the sole accused absconded from the village. 9. The kidnapped boy was ultimately killed and after the body was kept concealed for several days, it was ultimately disposed of by throwing in a field near the railway track in the village. It is also established that after the recovery of the dead body and lodging of the Fardbeyan the appellant, the sole accused absconded from the village. 9. In the light of aforesaid facts it is to be seen whether the circumstances established by the prosecution are sufficient to constitute a chain so as to point towards the guilt of the appellant in a convincing manner. On behalf of the appellant, it was submitted that initially the prosecution party did not name the appellant when the disappearance of the boy was conveyed to the police on 25.5.1996 and even till a late stage the prosecution did not hold the appellant responsible for the offence and this shows that the appellant has been implicated as an after thought only on account of suspicion. The submission, prima facie, appears attractive but on a close and careful scrutiny of ail the facts and circumstances it is found to be without merits. it Is important to notice that in this case the boy was not found killed or dead and the search for the missing boy aged about five years continued for about five weeks. On account of earlier enmity and threat which constitutes motive against the appellant, there was bound to be grave suspicion against appellant but clearly, as deposed by the informant in the Court, the prosecution did not want to alarm the offender by disclosing his name officially to the police because family members of the boy feared that the boy may be put to danger by disclosing suspicion against the appellant. The family members of a missing boy, in natural course of events are likely to entertain hope that the boy may be returned by the criminals, may be after demanding a reasonable ransom. In such situation, it is usual that the name of the suspect is not disclosed officially and many a times even report to the police is deliberately delayed. Hence non-disclosure of the name of the appellant as the sole suspect at the initial stage cannot lead to an inference that appellant has been implicated falsely as an afterthought. 10. In such situation, it is usual that the name of the suspect is not disclosed officially and many a times even report to the police is deliberately delayed. Hence non-disclosure of the name of the appellant as the sole suspect at the initial stage cannot lead to an inference that appellant has been implicated falsely as an afterthought. 10. The failure of the investigation Officer to search the house of the sole accused situated at a distance of 200 yards from where the dead body was found, raises a strong suspicion that the I.O. was not acting fairly. In such circumstances, effort on the part of informant and three other witnesses to get their statements recorded under Section 164 Cr.P.C. soon after filing of the charge-sheet appears to be reasonable and the deposition of these witnesses in Court find corroboration from their earlier statements under Section 164 Cr.P.C. regarding presence of the appellant at the place of occurrence soon before disappearance of the deceased boy. The claim of these witnesses that the I.O. actually went to the house of the appellant and found some blood stains and foul smelling husk there appears trustworthy because such claim by concerned witnesses finds corroboration from their statements under Section 164 Cr.P.C. 11. On a careful perusal of the entire evidence and materials, we find ourselves in agreement with the finding of the Trial Court that the prosecution has succeeded in establishing a chain of circumstance which prove the charges against the appellant under Sections 302 and 201 of the IPC. We find no good reason to take a different view in the matter and to differ from such findings of the Trial Court. Hence, we confirm the conviction and sentence awarded to the appellant. The appeal is dismissed as one without merit.