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2008 DIGILAW 231 (PAT)

Shailendra Kahar v. State Of Bihar

2008-02-04

CHANDRA MOHAN PRASAD, DHARNIDHAR JHA

body2008
Judgment 1. The two appeals are directed against the judgment and order of sentence dated 24.5.2003 passed by the learned Presiding Officer, Additional Court-I(F.T.C) Katihar, in Sessions Trial No. 197/2001/ 304/2002 by which the appellants were held guilty of committing offences under Sections 302/34, 376/34 and 201/34, IPC and each of them was awarded R.I. for life, rigorous imprisonment for eight years and R.I. for five years respectively on each of the above counts. 2. The prosecution case is contained in Ext-3 the fardbeyan of PW. 9 Prasad Pandit in which he stated that his daughter Putul Kumari, aged about 11 years, went out of the house on 25.8.2000 at 6 a.m. for attending to the call of nature into the plantain field. Putul Kumari did not return till 10 a.m. giving anxiety to her parents who set out on her search but could not find the child on 25.8.2000. 3. It is further alleged that on 26.8.2000 while searching for their daughter both Prasadi Pandit (PW 9) and his wife Yasoda Devi (PW 7) went into the campus of one Lalbaboo and fond into the wildly grown Kepcha (a wild shrub) the nacked dead body of their daughter with blisters over it and that her private parts and anus had bulged out. It was alleged that while going towards the Kapcha-shrub, PW 7 and 9 found accused Deep Narayan Mahaldar, Mukesh Kumar, Bib-hidha Mahto, Shailendra Kahar, Awadh Mandal and 2-3 unknown others sitting by the side of the wall of the campus, who started running away on seeing the couple and who did not stop even after being called to do so. That gave arise to a belief in the minds of PWs 7 and 9 that their daughter had been raped and killed by the above noted accused persons. 4. PW 11 Rakesh Kumar Yadav who recorded the fardbeyan of PW 9 took up the investigation of the case. After examining the witnesses, holding inquest on the dead body and sending the dead body for postmortem examination and receiving all the necessary documents submitted the chargesheet sending up the three accused persons on trial which included the two appellants, one in either of the appeals. After examining the witnesses, holding inquest on the dead body and sending the dead body for postmortem examination and receiving all the necessary documents submitted the chargesheet sending up the three accused persons on trial which included the two appellants, one in either of the appeals. The trial Court after reading the evidence concluded that accused Mukesh Kumar @ Mukhiya @ Samar Kumar was not guilty of the charges and as such acquitted him while recording the finding of guilty to pass the sentences on the appellants under the offences as indicated at the very outset of the judgment. 5. What appears from the record of the case and specially the statements of accused persons recorded under Section 313, Cr PC, is that they did not offer any specific defence before the trial Court except that they were innocent and had falsely been implicated. 6. The prosecution examined as many as 11 witnesses for bringing the charges home to the accused persons, out of whom PWs 1 Bhawtosh Kumar, 2. Bhola Mandal, 3. Gopal Yadav, 4. Brahmadeo Pandit, 5. Balram Pandit and 8. Pitambar Pandit did not support the prosecution case as regards the participation of the two appellants. In fact PWs 1, 2, 3, 4 and 5 gave one-line-evidence that they did not know anything about the prosecution story. As regards PW 8 he did support the factum of disappearance of the child Putul Kumari from her house while going out to attending to the call of nature, but did not support the other part of the prosecutir n story any bit. As such the prosecution chose to declare him a hostile witness to it and to cross-examination PW 8 to his previous statements. So far as PWs 7 Yasoda Devi, mother of the deceased and PW 9 Prasad Pandit her father are concerned, they while reiterating the story contained in the fardbeyan Ext-3, added up a few facts also that some of the accused persons were attempting to take the dead body, after picking it up, across the wall of the campus. PW 7 in her examination-in-chief named appellants Bibidha Mahto and Shailendra Kahar besides naming accused Awadhesh and Dipak Mahaldar in connection with the above part of the story told by her. PW 7 in her examination-in-chief named appellants Bibidha Mahto and Shailendra Kahar besides naming accused Awadhesh and Dipak Mahaldar in connection with the above part of the story told by her. PW 9 Prasadi Mahto while supporting his story in paragraph 2 named appellant Shailendra Kahar and accused Deepak Mahaldar in connection with of attempting to take the dead body across the wall. Their attention was drawn to the above line of their respective statements recorded by the learned trial Judge and they stuck to it that they had made such statements as may appear from paragraph 3 of PW 7 and paragraph 6 of PW 9 and which fact was proved by the cross-examination of PW 11. The I.O. of the case in paragraph 10 in which the I.O. of the case stated that Yasoda Devi (PW 7) had not made the above statement of four accused persons making an attempt of taking the dead body across the wall. The statement of PW 9 being reduced into writing in the form of Ext-3, the fardbeyan, which is duly exhibited we find no such statement made by PW 9 in the document. Thus, we are very much clear in our minds that the witnesses appear making some improvement, and very vital on that, as regards the prosecution story. If we took out this line of evidence from the evidence of the two witnesses, then the fact remains that the accused persons could only be held present at or around the place where the dead body was located or found by PWs 5, 7 and 9 and nothing more than that could be attributed to them. 7. During the course of argument, the learned counsel appearing for appellant Shailendra Kahar and also the learned Amicus Curiae for Bibidha Mahto drew our attention to some of the parts of the judgment passed by the learned trial Judge, which makes reference to the medical evidence on which some inferences have been raised about the guilt of the appellants and criticised the findings as being not founded on evidence and based only on conjectures and surmises. We do not want to indulge in any finding as regards the record by the learned trial judge on some findings of the medicalman and his evidence, except to say that the findings recorded by the trial Judge in paragraph 9 at pages 6 and 7 of the judgment do not appear emerging from the evidence of the doctor and those findings appear to us more as a matter of giving flights to his imaginations by the learned judge than to searching for some concrete truth. The learned Judge appeared guided more by his moral than by the facts of the case and appeared more inclined to hold the appellants guilty than the facts and evidence really justified it. This could be the reason for the. learned senior counsel for the appellant Shailendra Kahar to submit that there is a long distance between may be proved and must be proved which distance is to be travelled by concrete, acceptable and admissible evidence and not by mere conjectures. 8. Moreover, what has influenced out minds is the state of the dead body. If we could reproduce the evidence of the medical-man, i.e., PW 6 Dr. S.M. Thakur, we could be noting down that the doctor found the dead body in a highly decomposed state so much so that blisters were all over the body and some of them had broken down and maggots were found creeping over it specially on the areas like head, face and neck; on account of the time which has elapsed since death and P.M. held which was from 60 hours to 70 hours before holding of the postmortem examination. The doctor has stated in his evidence that the maggots could be appearing about 60 hours of the death. If we would go back from 5:08 p.m. of 27.8.2000, it could be much before 25.8.2000 that the deceased could have died. Otherwise, why could and how could the doctor be noting and finding the maggots appearing all over the dead body. If we would go back from 5:08 p.m. of 27.8.2000, it could be much before 25.8.2000 that the deceased could have died. Otherwise, why could and how could the doctor be noting and finding the maggots appearing all over the dead body. We do not discard the basic prosecution story that the little girl Putul Kumari was killed, she must have been because the doctor found her strangulated to death but in absence of any evidence direct or circumstantial pointing out towards the guilt of any one, it could not be safe for us to jump to any conclusion specially to the conclusion that it could be the appellants or the accused persons who were initially arrayed in the case. It appears to us that finding the accused persons sitting by the side of the wall, an a priori suspicion raised itself in the minds of the witnesses that it could be appellants and other accused persons and not getting to the real man who could have been behind the crime the parents appear weaving out stories. As such, the introduction of a new fact that the appellants were found holding the dead body so as to crossing it over to the other side of the wall. 9. In view of the evidence which is available to us on record we find that the conviction of the appellants for the offences is not justified. We are anxious to consider their conviction under Section 201 of the IPC also, but when we checked out the evidence on the language of Section 201, IPC we could not find ourselves getting acceptable-sufficient evidence to hold that indeed the appellants could be fastened with the liabilities of knowing or having reason to believe that an offence was committed and above all they could not be held to making the attempt for causing the disappearance of the dead body with intent to screen themselves or the real offenders. The evidence could not indicate to us that the appellants were really knowing as to who had committed the offence. We find ourselves unable to hold them knowing about the authorship of the crime. At the cost of the repetition, we want to reiterate that the part of the evidence on which there could be any finding under Section 201 has already held by us to be an exaggeration or embellishment in prosecution case. 10. We find ourselves unable to hold them knowing about the authorship of the crime. At the cost of the repetition, we want to reiterate that the part of the evidence on which there could be any finding under Section 201 has already held by us to be an exaggeration or embellishment in prosecution case. 10. In the light of the discussions which we made hereinbefore, we find that the judgment and order of conviction passed by the learned trial Judge is not fit to be sustained in law, the same is accordingly set aside. The appellants, namely, Shailendra Kahar and Bibidha Mahto are hereby acquitted of the charges under which they were held guilty and sentenced. Both the appellants are in custody. They shall be released forthwith if not wanted in any other case. The Two appeals are allowed in the terms as indicated above.