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2013 DIGILAW 387 (PAT)

Sugapati Devi v. State of Bihar

2013-03-19

AMARESH KUMAR LAL, V.N.SINHA

body2013
ORDER V.N. SINHA, J. Appellant is the informant of Kateya P.S. Case No. 129/01 dated 15.09.2001 registered for the offence under Section 364 of the Penal Code. She has filed this appeal challenging the judgment dated 24.3.2012 passed by 1st Additional Sessions Judge, Gopalganj in Sessions Trial No. 538/04, whereunder the prosecution case as set out in the aforesaid Kateya P.S.Case No. 129/01 has been disbelieved and the sole respondent acquitted of the charge that he abducted Subas Manjhi on 13.09.2001 at about 2 P.M. 2. The prosecution case as set out in the First Information Report of the informant Sugapati Devi, wife of Subas Manjhi dated 15.9.2001 is that a contract for raising of the Panchayat Bhawan, Semariya during financial year 1998-99 was taken by the respondent in the name of the husband of the informant Subas Manjhi. Civil work for the said construction began in the year 1999. During execution of the aforesaid civil work, respondent became accused and absconded. The contract for raising of the Panchayat building was executed by the husband of the informant. Final payment of the said contract has not yet been made. Respondent wanted payment of the final bill of the said contract in his presence and for such payment he was putting pressure on the husband of the informant. On 13.9.2001 Thursday at about 2 P.M. respondent came to the house of the informant and asked her husband to accompany him to Panchdevari Block office. Having accepted the suggestion of the respondent, husband of the informant went along with the respondent on his motorcycle. At the time of departure of the husband of the informant with the respondent, elder brother of the informant Parmanik Manjhi was also present in the house of the informant as he had come to provide the informant medicine and in his presence husband of the informant went along with respondent. The husband of the informant did not return in the evening. Informant searched for her husband in the village. Co-villager Barister Rai also informed the informant that around 2 P.M. he had seen her husband going along with the respondent on his motorcycle towards east. The husband of the informant did not return in the evening. Informant searched for her husband in the village. Co-villager Barister Rai also informed the informant that around 2 P.M. he had seen her husband going along with the respondent on his motorcycle towards east. It is further stated in the First Information Report that husband of the informant has not come back until 15.9.2001, the date and time of lodging of the First Information Report and informant suspects that on account of differences in settlement of the accounts concerning execution of the contract for raising the Panchayat building, respondent has abducted her husband with an intent to kill him. 3. Aforesaid prosecution case has been disbelieved on the ground that the prosecution evidence led to support the prosecution case does not make out the offence of abduction against the respondent as neither the contents of the First Information Report nor evidence of the informant P.W.-2 and her brother Pramanik Manjhi, P.W.-5 indicate that any force or deceitful means was applied by the respondent on 13.9.2001 at about 2 P.M. to carry the husband of the informant to Panchdevari Block for withdrawal of the final bill pursuant to the contract for raising the Panchayat building, Semariya. 4. The evidence of mother-in-law of the informant Patiraji Devi, P.W.-3 Paragraph 6, wherein she stated that there was enmity with respondent and he forcibly took her son Subas to Panchdevari Block with intent to kill but she did not raise any alarm, has not been accepted to prove the charge of abduction against the respondent as she is the only eye-witness out of the three eye-witnesses present at the time of occurrence to have stated that respondent forcibly took her son Subas on the motorcycle to Panchdevari Block. The other two eye-witnesses i.e. the wife of the victim P.W.-2 and his brother-in-law P.W.-5 have not stated that any force was applied by the respondent to take Subas as pillion on the motorcycle for going to Panchdevari Block. It also appears that independent eye-witness named in the First Information Report itself Barister Rai P.W.-4 has also not supported the occurrence and was declared hostile. 5. It also appears that independent eye-witness named in the First Information Report itself Barister Rai P.W.-4 has also not supported the occurrence and was declared hostile. 5. Counsel for the appellant challenged the judgment on the ground that the factum of Subas having accompanied the respondent on 13.9.2001 at about 2 P.M. on his motorcycle for going to Panchdevari Block stood proved by the evidence of the informant, P.W.-2, her mother-in-law, P.W.-3 and her brother, P.W.-5 it was for the respondent to disclose as to where did Subas disappear from the Panchdevari Block office. It is only respondent who is aware about the developments which took place after the departure of Subas and the respondent from the house of Subas on 13.9.2001 at about 2 P.M. Reliance in this connection is placed on Section 106 of the Indian Evidence Act as also on the judgment of the Supreme Court in the case of Prithipal Singh and others Vs. State of Punjab and another (2012) 1 SCC 10 paragraphs 53 and 79. 6. Counsel for the respondent submitted that in the case of Prithipal Singh (supra) the factum of abduction of the husband of the informant was duly established by the prosecution with reference to the evidence of P.W.2, 7 and 15 and in view of such proof Supreme Court with the aid of Section 106 of the Indian Evidence Act observed that only the accused person could explain as to what happened to the husband of the informant and if he had died, in what manner and under what circumstances he had died and why his corpus delicti could not be recovered. 7. Learned counsel for the respondent with reference to the judgment of the Supreme Court in the case of State of Maharashtra Vs. Annappa Bandu Kavatage (1979) 4 SCC 715 Paragraph 2 and in the case of Vinod Chaturvedi etc. Vs. State of Madhya Pradesh AIR 1984 Supreme Court 911 paragraph 7 further submitted that abduction of the husband of the appellant by the respondent having not been proved respondent cannot be asked to explain the whereabouts of the husband of the appellant. The onus to prove the charge of abduction against the respondent is on the prosecution, it is not for the respondent to prove his innocence. 8. The onus to prove the charge of abduction against the respondent is on the prosecution, it is not for the respondent to prove his innocence. 8. Having heard counsel for the parties and perused the impugned judgment, it is quite evident from the evidence of the prosecution witnesses that charge of abduction of the husband of the appellant by the respondent has not been proved by the prosecution. The view taken by the trial court is a plausible view and we do not find any merit in the submission to interfere with the findings recorded by the trial court in the impugned judgment. 9. The appeal is dismissed.