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2014 DIGILAW 730 (PAT)

Kailash Sharma v. State of Bihar

2014-07-02

JITENDRA MOHAN SHARMA, NAVANITI PRASAD SINGH

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NAVANITI PRASAD SINGH, J.:–The present appeal has been filed against the judgment of conviction dated 14.02.1991 and sentence dated 15.02.1991 passed by the Additional Sessions Judge II, Hajipur in Sessions Trial No 61 of 1984/27 of 1987 which arose out of Lalganj Police Station (PS) Case No 53 of 1983. The three appellants, who are father and his two sons, were convicted for an offence under Section 364 of Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for life. 2. An affidavit has been filed today stating that appellant No 1, the father and appellant No 2, his elder son, namely, Kailash Sharma and Mahendra Sharma are dead. The result is that the appeal in relation to Kailash Sharma and Mahendra Sharma abates. This appeal survives only so far as appellant No 3 Garib Nath Sharma is concerned. 3. Before proceeding further, we may note a submission made by the learned counsel for the appellant. He states that appellant No 3 Garib Nath Sharma was found to be 24 years of age when the judgment was pronounced on 14th of February, 1991. This is based on the finding recorded by the Court when this accused appellant Garib Nath Sharma was examined under Section 313 of Criminal Procedure Code (Cr P C) on 15.01.1991 where his age was assessed as 24 years. Assuming for the time being that this is the correct age then the incident had taken place on 20.01.1983 that is 8 years back and, thus, the age of appellant No 3 on the date of occurrence would be about 16 years. He could not have been charged in view of the provisions of Bihar Children Act, 1982, yet unmindful of this, he, alongwith others, was tried for offence under Section 364 of IPC and punished for life imprisonment. We regret that the learned trial Court was oblivious of these provisions. 4. Having perused the judgment of the trial Court, we are a bit surprised. We regret that the learned trial Court was oblivious of these provisions. 4. Having perused the judgment of the trial Court, we are a bit surprised. The prosecution case is based on a complaint filed by the informant Surajdeo Sharma (PW 7) which was filed before the Chief Judicial Magistrate (CJM), Vaishali at Hajipur on 10th of February, 1983 alleging that his daughter Manju Devi was married to the son of Kailash Sharma (appellant No 1) and brother of Mahendra Sharma and Garib Nath Sharma (appellants No 2 and 3) about 3 years back when she was aged about 17 years. The name of her husband was Shambhu Sharma who was a contractor and stayed and worked at Kathmandu (Nepal). He did not take his wife to Kathmandu. It is alleged in the complaint that on 20.01.1983, appellant Kailash Sharma came to the house of the complainant and disclosed that his daughter had had an argument with the mother-in-law and had run out of the house. They did not know where she went and, therefore, he had come to the daughter’s-in-law Maikay searching for her. Appellant No 1 then returned. The complainant states that he searched for his daughter and then on 23.01.1983 lodged a sanha with the Bhagwanpur PS, District – Vaishali in this regard. He made further searches. He alleges that he heard some ladies talk that on the date of occurrence, they had heard the shouts of his daughter in the night at her sasural. She disappeared thereafter. He, therefore, requested the Court to try the three accused persons for an offence under Sections 302 and 201 of IPC for murdering his daughter and concealing her body to conceal evidence of murder. It appears that the CJM forwarded the same to Lalganj PS to register a case in terms of Section 156 (3) of Cr P C upon which Lalganj PS Case No 53 of 1983 was registered. Police having taken up investigation, filed chargesheet against the appellants under Section 364 of IPC and not under Section 302 or for that matter 201 of IPC. Upon cognizance being taken, the case has been committed to the Court of Session and solitary charge was framed against all the three accused persons under Section 364 of IPC alone. The appellants pleaded not guilty and were tried. In course of trial, the prosecution examined 10 witnesses. Upon cognizance being taken, the case has been committed to the Court of Session and solitary charge was framed against all the three accused persons under Section 364 of IPC alone. The appellants pleaded not guilty and were tried. In course of trial, the prosecution examined 10 witnesses. Suffice to say that there was no evidence led to show that Manju Devi, the daughter of the informant had been abducted. There is no evidence of Manju Devi being killed. The best evidence that is of the informant is that on 20.01.1983. appellant No 1 came enquiring whether Manju Devi had come there as she had run out of the house after quarrel with mother-in-law. There is no other material beyond this and it is upon this alone, the trial Court had convicted the three persons for an offence under Section 364 of IPC. We fail to understand that even accepting this allegation on its face value how does it constitute an offence under Section 364, IPC at all. A closer reading of the trial Court judgment, in order to understand the Court’s approach, is revealing. We are referring to it more as a warning to people who are in a position to take such decisions as a Judge as to what is not to be done. First, I would like to notice paragraph 5 of the judgment which is quoted hereunder :— 5. Now the questions which arise for consideration in this case are as follows :- (i) Whether Manju Devi is dead? (ii) If so, whether she was abducted and murdered by the accused persons? (iii) Whether the defence case is probable? 5. We are surprised that such questions could at all be framed as if this was a civil suit. As noted above, the accused persons had been charged solely for an offence under Section 364 of IPC which Section is quoted hereunder :— “364. Kidnapping or abducting in order to murder.—Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” 6. If one looks to the provisions of Section 364 of IPC, the allegation and the issues, as formulated, it would be clear that either the trial Court did not appreciate the law or was ignorant thereof. In either case, it is a tragedy. There was no charge of murder. The death of Manju Devi was not a subject matter of charge. In a criminal trial, the probability of defence version has not to be looked into. We are afraid that probably the trial Court was under an impression that it was trying a civil dispute rather than a criminal trial for his entire judgment is based upon probabilities, assumptions and presumption. He assumes that by the time trial took place, seven years having gone by and Manju Devi not recovered, it would be presumed that she is dead. He then goes further and holds that her death now having not been explained, it would be assumed that she was murdered. So one presumption leads to another assumption. Is this a criminal trial or a mockery thereof? The learned trial Judge failed to appreciate that in a criminal trial, a person has to be found guilty beyond reasonable doubt upon evidence led by the prosecution which is in contradiction to a civil case where a decision is to be taken upon preponderance of probability of evidence brought on record. The Evidence Act and the Rules of Evidence are the same but the manner of appreciation and its admissibility differ in a criminal case and a civil case. The manner in which question has been formulated by the trial Court would have been appropriate in a civil dispute where issues are framed and decided but in a criminal case, the issue is the charge and nothing beyond that. 7. Now coming to the facts, all that has been proved by the prosecution is that appellant No 1, the father-in-law (now dead) of Manju Devi came to complainant’s/informant’s house on 20.01.1983 informing the informant, the father of Manju Devi, that she had had a quarrel with her mother-in-law and left the house in anger. He had come searching for her. The only other evidence is that the informant says that while searching, on one day, he had overheard some ladies gossip that they had heard the shouting of Manju Devi on the night of the fateful day from the house. He had come searching for her. The only other evidence is that the informant says that while searching, on one day, he had overheard some ladies gossip that they had heard the shouting of Manju Devi on the night of the fateful day from the house. There is no further evidence brought on record by the prosecution. We failed to understand how on this evidence, there could be a charge of Section 364 of IPC at all. Where was the question of kidnapping or abduction? Even, as per prosecution case, the girl Manju Devi was living in her sasural. Where is the question of forcibly carrying her or enticing her much less from her home? What are the facts to establish intention to kill? At best, it was a case where Manju Devi disappeared but the defence is itself in the complaint wherein it is admitted that appellant No 1, the father-in-law had come to the informant searching for the daughter-in-law and had disclosed at the very first instance that she had a quarrel with her mother-in-law and ran away from the house. We find it curious that neither the mother-in-law nor the husband have been made parties in the proceeding. Because, the story set up was that the husband did not take the girl because he was demanding dowry. The quarrel was with mother-in-law who had allegedly thrown her out. We are afraid that on such scanty evidence, there cannot be any conviction much less under Section 364, IPC. 8. We have, therefore, no option but to allow the appeal, set aside the conviction of appellant No 3 who is discharged from the liabilities of his bail bonds. ?