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2013 DIGILAW 1384 (PAT)

Shankar Sah v. State of Bihar

2013-12-05

ANJANA PRAKASH

body2013
JUDGMENT Smt. Anjana Prakash, J. The appellants have been convicted under Section 306, Indian Penal Code and sentenced to undergo rigorous imprisonment for five years by judgment and order of conviction dated 22nd April, 2000, and 26th April, 2000, respectively passed by the 2nd Additional Sessions Judge, Banka, in Sessions Case No. 370 of 1995. 2. The case of the informant is that his daughter was married with appellant Sudarshan Sah eight yeas ago but after sometime she was subjected to cruelty by her in-laws. A panchayati was also held in this regard. On 17.6.1994, the appellants came to the house of the informant to enquire about his wife. When he went to her village, he was told that on 15.6.1994, his daughter had been brutally assaulted by the present appellants and her husband for the alleged theft of six kg. of rice from the house. It is thereafter that her dead body was recovered by the Jasidih police besides the railway track. The dead body was identified by photograph that was shown to them by the police official and then the present case was instituted and the appellants were put on trial under Sections 302, 201 and 120-B, Indian Penal Code, but acquitted of the charges and convicted as mentioned above after alteration of the charges. 3. During trial, the prosecution examined seven witnesses out of whom, PW 6, Siyaram Mandal and PW 7, Arun Kumar Poddar are formal in nature. PW 4, Pairu Mandal @ Pairu Sah was tendered. PW 1, Doman Paswan, PW 2, Surya Narain Sah, PW 3, Ramdeo Yadav and PW 5, Chandrika Sah, are eye-witnesses. The defence has also examined one witness. It appears that during trial the informant died. 4. PW 1, Doman Paswan, stated that the occurrence had taken place about seven years ago. When he reached the shop of Singho Sah, he found that the present appellants and Sudarshan Sah were assaulting the deceased on the pretext that she had stolen rice from the house and sold it there. She was so brutally assaulted that she could not stand on her own. Thereafter, when the accused were chided, the deceased was bodily lifted and taken to their house. The accused persons had assaulted the deceased for which a Panchayati was also held in which they were told to maintain restraint. She was so brutally assaulted that she could not stand on her own. Thereafter, when the accused were chided, the deceased was bodily lifted and taken to their house. The accused persons had assaulted the deceased for which a Panchayati was also held in which they were told to maintain restraint. Two days after the aforesaid occurrence, the father of the deceased had come to find out about her whereabouts and then it was found that a dead body had been removed besides the railway line which was identified to be that of the deceased through photographs. His attention was drawn to his earlier statement under Section 161, Cr PC that he had not stated that on 15.6.1994 in the morning two accused persons were assaulting the deceased and further that he had not stated that the deceased had stolen rice and sold it in his shop or that a person like her should be killed. 5. PW 2, Surya Narain Sah, also stated that two years ago the deceased had been severely assaulted by the accused persons at the shop of Singho Sah. Two days after this incident, the informant had come looking for his daughter and then a dead body was recovered by the side of the railway line which was identified to be that of the deceased through photographs. He further stated that reason for assault upon the deceased was the allegation that she had sold rice in his shop. In paragraph 6, this witness admitted that he had not stated before the police that on 15.6.1994, the accused persons had assaulted the deceased on the allegation that she had sold rice in the shop. In paragraph 7, he admits that he had not given statement before the police that two days after the said incident the informant had come looking for his daughter and then the dead body was identified by him. 6. PW 3, Ramdeo Yadav, stated about the incident which had been narrated by PWs 1 and 2. His attention was drawn to the earlier statement, wherein, he had not stated during investigation that when he came to the shop of Singho Sah, he saw the incident of assault. 7. PW 5, Chandrika Sah, is the uncle of the deceased, who stated that on 17.6.1994 Sudarshan Sah had come to his house to look for his wife. His attention was drawn to the earlier statement, wherein, he had not stated during investigation that when he came to the shop of Singho Sah, he saw the incident of assault. 7. PW 5, Chandrika Sah, is the uncle of the deceased, who stated that on 17.6.1994 Sudarshan Sah had come to his house to look for his wife. They then had gone to the village of the deceased where he was informed by the villagers that the deceased had been assaulted by her in-laws and driven out from the house. On 4.7.1994 i.e. almost three weeks later, it was heard that a dead body had been recovered at Jasidih at which they went there and identified the dead body as that of his niece on the basis of a photograph. His attention was drawn to the earlier statement in paragraph 4 that he had not stated before the police that on 17.6.1994 Sudarshan Sah had come looking for his wife or that they had gone looking for her in her village where the villagers had informed that the deceased had been assaulted and drove away from the house by her in-laws. 8. Unfortunately, neither the Investigating Officer nor the Doctor has been examined. In the statement recorded under Section 313, Cr PC, accused Malti Devi stated that the deceased had left the house upon which she had sent Sudarshan Sah to look for her in her maternal home and thereafter on 19.6.1994 a missing report was given to Police Out Post. 9. DW 1, Parmeshwar Yadav, stated that on the date of occurrence he had produced accused Shankar Sah before the Court and pleaded alibi. 10. Since the conviction of the appellants is one under Section 306, Indian Penal Code, it would be important to examine as to whether there is evidence with regard to abetment as required under Section 107, Indian Penal Code. 11. In the present case, PWs 1, 2 and 3 are co-villagers, who stated that two days before the institution of the First Information Report, the deceased had been brutally assaulted by the accused persons. However, the attention of PW 1 was drawn to his earlier statement that he had not stated before the Investigating Officer about the incident. PWs 2 and 3 have admitted that they did not state about this incident to the Investigating Officer. However, the attention of PW 1 was drawn to his earlier statement that he had not stated before the Investigating Officer about the incident. PWs 2 and 3 have admitted that they did not state about this incident to the Investigating Officer. PW 5, uncle of the deceased has stated that he learnt that deceased had been assaulted brutally by the accused persons two days before she went missing from the village. However, he did not disclose the name of the villagers, who gave him this information. The evidence of the villagers, who were examined on behalf of the prosecution, has been discussed above. Non-examination of the Investigating Officer has thus caused serious prejudice to the appellants in view of the consistent attention of the witnesses having been drawn to their earlier statement with regard to the incident immediately preceding the disappearance/death of the deceased. 12. In such circumstances, in my opinion, it would be unsafe to rely on the statements of the witnesses quality of which is deficient in nature. 13. Moreover, the fact that the dead body was identified by the prosecution has not been conclusively proved by the prosecution in absence of documentary evidence in its regard. The photographs have not been exhibited by any witness in support of recovery /identification of the dead body. The Post-Mortem Examination Report proved by a formal person is merely in respect of an unknown female. In absence of conclusive proof that the Post-Mortem Examination Report relates to the daughter of the informant, due to non-examination of the Investigating Officer, the Report will also be of no help to the prosecution. 14. In view of such, giving benefit of doubt to the appellants, they are acquitted of the charge under Section 306, Indian Penal Code and are also discharged from the liabilities of their respective bail bonds. The judgment and order of conviction dated 22nd April, 2000, passed by the 2nd Additional Sessions Judge, Banka, in Sessions Case No. 370 of 1995 is hereby set aside. 15. In the result, the appeal is allowed. Appeal allowed.