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2012 DIGILAW 1510 (PAT)

Shobha Rai v. State Of Bihar

2012-11-02

RAJENDRA KUMAR MISHRA

body2012
JUDGMENT R.K. Mishra, J. 1. The appellants have preferred this appeal against the judgment of conviction dated 31.08.1999 and order of sentence dated 02.09.1999 passed in Sessions Trial No. 107 of 1993/27 of 1993 by the court of IInd Additional Sessions Judge, East Champaran, Motihari, whereby the learned IInd Additional Sessions Judge convicted all the six appellants under Section 201 of the Indian Penal Code and sentenced to them to undergo rigorous imprisonment for five years while the appellants have not been found guilty for the offence under Section 302/34 of the Indian Penal Code and they are acquitted for the said charge. 2. In brief, the prosecution case is that Turkolia (Banjaria) P.S. Case No. 70 of 1992 was registered on 07.06.1992 on the basis of written report (Ext-2) of informant, Lal Babu Rai (PW-10) under Sections 302, and 201/120(B) of the Indian Penal Code. The informant, Lal Babu Rai (PW-10), has alleged in his written statement (Ext-2) that on 31.05.1992 (Sunday) in the evening his son, Shashi Bhushan Rai, aged about 11 years moved to Dhab Sareh to graze she buffalo alongwith villager Sukhdev Rai and at about 8:00 P.M. Sukhdev Rai came with she buffalo then he asked to Sukhdev Rai about his son, Shashi Bhushan, who replied that he alongwith Shashi Bhushan have gone to graze the she buffalo in Dhab Sareh where both eaten cucumber by committing theft. Thereafter, Shashi Bhushan did not meet him since he was returning at house, so he carried she buffalo of Shashi Bhushan. The further case of the informant is that he alongwith villagers, Jawahar Rai (PW-12), Birendra Rai (PW-3), Sukhdev Rai (not examined), Bharos Rai (PW-9), Rajendra Rai (PW-14), Dev Lagan Rai (not examined), Tuntun Rai (PW-18), Bishwanath Rai (PW-15), Lallan Rai (PW-5) and Ganesh Giri (PW-2) proceeding with torch to search his son, Shashi Bhushan Rai but could not found trace of Shashi Bhushan Rai. On the next morning he alongwith Narad Thakur (not examined), Dasai Rai (PW-19), Sheo Pujan Rai (PW-7), Bishwanath Rai (PW-15) and Nawal Rai (not examined) moved in search of his son and reached in that course near the bank of Sikrahna river where his son, Shashi Bhushan Rai was found dead lying in muddy water of river sustaining injury on the eyebrow. He carried his son at his door and the family members started weeping. He carried his son at his door and the family members started weeping. In the meantime Sukhdev Rai, Harendra Rai, Shobha Rai, Durga Rai, Mangal Rai, Birendra Rai and Ram Narayan Rai in hurriedness, carried the dead body of his son, Shashi Bhushan Rai without covering with the cloth in his orchard and burnt with the help of cow dung and kerosene oil. Due to sudden death of his son, he alongwith family members were bereaved and were making quarry about death of his son then he came to know that the aforesaid persons carried his son and committed the murder. Panchayati was also arranged on 03.09.1992 in the evening at the door of Mukhiya, Ram Ekbal, in which Sukhdev Rai told that he had committed the murder of his son, Shashi Bhushan Rai and also made request for pardon. In the Panchayat, Sobha Rai made protest and refused to obey the decision of the Panchayat, as such he has believed that his son, Shashi Bhushan Rai, was murdered under the conspiracy of the aforesaid accused and the dead body was thrown in the river and the dead body was also burnt in hurriedness by them. 3. After institution of the aforesaid case, the police on investigation submitted the charge-sheet in the aforesaid sections. In the process of the commitment of the case the record in respect to accused, Sukhdev Rai, was split up due to his juvenility and the case in respect to rest six accused/appellants was committed to the court of sessions for trial where charges under Sections 302/34 and 201 of the Indian Penal Code were explained to the accused-appellants to which they pleaded not guilty and claimed to be tried because of false implication in this case due to dirty village politics. 4. The trial court after considering the evidence of the witnesses and materials available on the record came to the conclusion that the prosecution has not been able to prove the charge under Section 302/34 of the Indian Penal Code but the prosecution have been able to prove the charge under Section 201 of the Indian Penal Code against the accused-appellants and, accordingly, hold guilty and sentenced in the aforesaid section. 5. 5. In order to prove the charges against the accused-appellants, the prosecution has examined altogether 21 witnesses out of them Santosh Rai (PW-1), Ganesh Rai (PW-2), Birendra Rai (PW-3), Prayag Rai (PW-4), Lallan Rai (PW-5), Ramdeo Bhagat (PW-8), Bharos Rai (PW-9), Indal Rai (PW-11), Jawahir Rai (PW-12), Awadhesh Rai (PW-13), Rajendra Rai (PW-14), Bishwanath Rai (PW-15), Ram Ekbal Rai (PW-16), Nawal Prasad Rai (PW-17), Tuntun Rai (PW-18) and Desai Rai (PW-19) have not supported the prosecution case and they have been declared hostile. Lal Babu Rai (PW-10) is the informant of the case, Mahendra Rai (PW-6) is the brother of the informant, Anupi Devi (PW-21) is the wife of the informant and Sheo Pujan Rai (PW-7) is the Patidar of the informant and Ram Lalit Singh (PW-20) is the I.O. of the case, who has proved the formal F.I.R. as drawn up on the basis of the written report of informant, Lal Babu Rai (PW-10) (Ext.-3). 6. Learned counsel for the appellants pointed out that the occurrence is said to be of 31.05.1992 and the dead body of deceased, Shashi Bhushan Rai, is said to be recovered and disposed of on 01.06.1992 but the informant, Lal Babu Rai (PW-10) gave his written report about institution of the case on 07.06.1992 after one month and five days of the occurrence without disclosing the proper explanation. In fact, after recovery of the dead body of Shashi Bhusan Rai, who had gone to graze his she buffalo, his last ceremony was performed by the villagers with the consent of family members of deceased, Shashi Bhushan Rai, but due to dirty village politics, the accused-appellants have been falsely implicated in this case after thought. 7. Lal Babu Rai (PW-10), who is the informant and father of the deceased, Shashi Bhushan Rai, has stated in his evidence that on the day of occurrence his son, Shashi Bhushan Rai, had gone to graze the she buffalo alongwith Sukhdev Rai in Dhab Sareh but at about 8:00 P.M. in the night, Sukhdev Rai returned carrying his she buffalo then he asked about his son, Shashi Bhushan Rai, on which he replied that in course of grazing the she buffalo both eaten the cucumber but thereafter, Shashi Bhushan Rai, proceeded any where. Thereafter, he alongwith villagers went to Sareh but could not found any trace of his son. Thereafter, he alongwith villagers went to Sareh but could not found any trace of his son. On the next day in course of search, the dead body of his son was found in the muddy water of Sikrahna river and there was injury at eyebrow. Thereafter, the dead body of his son was taken at his house, and then family members started weeping. The accuse-appellants and Sukhdev came and took the dead body of his son in his orchard and burnt the same through cow dung and kerosene oil. This witness has further stated that he met to Mukhiya, Ram Ekbal, who managed Panchayati and Panchayati was arranged after three days, in which Sukhdev Rai admitted his guilt regarding committing the murder of his son, Shashi Bhushan Rai, but accused, Sobha Rai (accused-appellant no. 1) refused to obey the decision of Panchayat. Thereafter he alongwith Navab Rai and Ram Ekbal Rai (PW-16) and gave the written report to the police drafted by Navab Rai. This witness has proved his written report as Exhibit-1. This witness in paragraph 16 of his cross examination has stated that at the time of carrying the dead body by the accused, 10 to 15 persons were present but none stopped the accused to carry the dead body while he and his wife made protest for not carrying the dead body. This witness has also stated in his cross-examination in para-18 that after half an hour he alongwith his wife had gone where the dead body of his son was carried. Mahendra Rai (PW-6), who is the brother of the informant, Lal Babu Rai (PW-10) has also stated in his evidence that deceased, Shashi Bhushan Rai, had gone to graze the she buffalo with Sukhdeo Rai but he did not return while the she buffalo was being carried by Sukhdeo Rai. On quarry about Shashi Bhushan Rai from Sukhdeo Rai, he said that after eaten the cucumber Shashi Bhushan Rai moved any where but he did not return. Thereafter, he alongwith others moved to search Shashi Bhushan Rai but they could not trace and on the next day in course of search the dead body of Shashi Bhushan Rai, was found in the muddy water of Sikrahna river and the dead body was carried at the house. Thereafter, he alongwith others moved to search Shashi Bhushan Rai but they could not trace and on the next day in course of search the dead body of Shashi Bhushan Rai, was found in the muddy water of Sikrahna river and the dead body was carried at the house. In course of weeping the family members, the accused carried the dead body in the orchard of informant, Lal Babu Rai (PW-10) and burnt with the help of cow dung and kerosene oil. This witness has further stated that Panchayati was arranged in the village, in which Sukhdev Rai admitted his guilt about committing the murder of Shashi Bhushan Rai. This witness has not said a single sentence about carrying the dead body by the accused-appellants forcibly while this witness has said in cross examination that villagers were also present there. PW-7, Shiv Pujan Rai, has also given the similar statement in his evidence. Anupi Devi (PW-21), who is the wife of informant, Lal Babu Rai (PW-10) has stated that his son, Shashi Bhushan Rai, had gone to graze the she buffalo with Sukhdeo Rai but on the day of occurrence at about 8:00 P.M. Sukhdeo Rai came with she buffalo, when quarry was made about searching his son, Shashi Bhushan Rai, Sukhdeo Rai replied that he had moved any where. This witness further said that her husband and other made search in the night but they could not found trace of Shashi Bhushan Rai and on the next day, the dead body was recovered at the bank of Sikrahna river and the dead body was being carried at her house and there was cut injury at eyebrow. She and her family members were bereaved. In that course the accused-appellants carried the dead body in her orchard and burnt with the help of cow dung and kerosene oil. 8. From the evidence of Lal Babu Rai (PW-10), Mahendra Rai (PW-6), Sheo Pujan Rai (PW-7) and Anupi Devi (PW-21), who are father, uncle, Patidar and mother of the deceased, Shashi Bhushan Rai, it appears that they have said about carrying the dead body of the deceased and to burn in the orchard of the informant but none witness has said about carrying the dead body forcibly. It also appears that other witnesses, who are villagers, have not supported the prosecution case and they have been declared hostile. It also appears that other witnesses, who are villagers, have not supported the prosecution case and they have been declared hostile. It is also pertinent to mention here that the occurrence is of missing and recovery of deceased, Shashi Bhushan Rai, are said to be on 31.05.1992 and 01.06.1992 but the informant Lal Babu Rai (PW-10) gave his written report to institute the case on 07.06.1992 after one month and five days of the occurrence, no reason has been assigned about delay in lodging the F.I.R., which create great suspicion about the prosecution story as narrated by the informant, Lal Babu Rai (PW-10). 9. In view of the aforesaid discussions made about, I am of the view that the prosecution has not been able to prove the charge under Section 201 of the Indian Penal Code against the accused-appellants beyond all reasonable doubts and the appellants are entitled to get the benefit of doubt. 10. In the result, the judgment of conviction and order of sentence passed against the appellants are hereby set aside and the appeal is allowed. The appellants, Sobha Rai, Birendra Rai, Ram Narain Rai, Durga Rai, Raj Mangal Rai and Harendra Rai, are on bail, so they are discharged from the liabilities of their bail bonds. Appeal allowed.