Patna High Court
Sita Raut And Ors. vs State Of Bihar And Anr. on 10 September, 1999
Equivalent citations: 1999(3)BLJR2310
JUDGMENT Indu Prabha Singh, J.
1. This is an appeal filed under Section 374 (2) of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the judgment dated 20th January, 1989 passed by Shri Satyendra Narain Gupta, 2nd Additional Sessions Judge, West Champaran, Bettiah convicting all the appellants under Section 364 of the Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for 7 years.
2. The prosecution case, in short, is that on 17-2-74 the appellants named above came, to the house of the complainant Bagar Raut (P.W. 4) and requested him to allow his brother Banarshi Raut to accompany them on the assurance that he will be sent bark on the next day. When, however, Banarshi Raut did not return on the next day or third day P.W. 4 became anxious. He went to the village of the appellants along with P.W. 1 Raiju Babu. The appellants or Banarshi Raut were not found there. Subsequently one Nitu Babu, (named as a witness in the complaint petition, but not examined in the Court) told them that he had seen Banarshi Raut along with the appellants in the evening of the last Sunday. When, However, Banarshi Raut did not return back ; nor he could be traced out; a complaint petition dated 26-3-1974 was filed before the Sub-Divisional Magistrate who examined the complainant on solemn affirmation and asked the police to inquire into the matter. Thereafter, the new Code , came into force and case stood transferred to the Court of Chief Judicial Magistrate who examined three P.Ws. under Section 202 of the Code and took cognizance of the offence. The matter was placed before the learned Additional Sessions Judge named above, after necessary commitment inquiry, who convicted the appellants in the manner indicated above.
3. In this appeal the appellants have contended that no occurrence as alleged by the prosecution did ever take place and they have been falsely implicated in this case. Two D.Ws. have also been examined on their behalf. They have further contended that only interested witnesses have been examined on behalf of the prosecution. The prosecution has failed to prove that the brother of the informant was taken away by force or by any deceitful means. The prosecution has further failed to prove that he was murdered or was put in danger of being murdered. The prosecution has also failed to prove that the appellant No, 1 and the abducted person were shardhus. The impugned judgment is bad in law and wrong on facts. There has been a delay of more than one month in filing the complaint petition. The prosecution case is highly improbable. On these grounds, amongst others, it has been contended that the judgment of conviction of the learned Court below be set aside and the appellants be acquitted.
4. The only point for determination before me is whether this appeal is fit to be allowed or not.
5. The first point urged on behalf of the appellants is that no offence under Section 364 of the Indian Penal Code has been made out against them, and, therefore, on this ground along they are entitled to be acquitted. This takes me to the consideration of Section 364 of the Indian Penal Code which runs as follows:
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. In the present case, as per the allegations made against the appellants we are not concerned with the offence of kidnapping but only with the offence of abduction which has been defined under Section 362 of the Indian Penal Code. It runs as follows:
362. Abduction.-Whoever by force compels or by any deceitful means induces, any person to go from any place, is said to abduct that person.
From this, it would appear that in order to prove the charge under Section 364 of the Indian Penal Code against the appellants the prosecution has to prove that either force or deceit was practised on the person abducted as otherwise a conviction under Section 364 of the Indian Penal Code cannot stand, it is well settled that force or fraud must have been practiced upon the person abducted. In this connection, a reference may be made to the case of Vinod Chaturvedi and Ors. v. State of Madhya Pradesh . In this case most of the P.Ws. had stated that on being persuaded by the accused-persons and Binod in particular the abducted person named Brindaban went inside his house and came out properly dressed to accompany them to a particular village. It was held by the Hon'ble Supreme Court in this case that under the aforesaid circumstances, it cannot be said that Brindaban was abducted by the accused-persons in view of the definition of abduction given in Section 362 of the Indian Penal Code.
7. In this connection, my attention has also been drawn to the case of Tondi and Ors. v. The State of U.P. 1975 Cr. L.J. 950. In this case it has been held that to establish a charge of abduction in order to murder under Section 364 of the Indian Penal Code when the case is one of abduction by deceitful means, the prosecution has to prove firstly that there was misrepresentation and secondly, that particular misrepresentation was under a plan to murder and thirdly that it was the plan by which the abducted person was himself deceived and was induced to go. Where there is no evidence to indicate that the alleged misrepresentation was the result of a plan to murder the deceased, the accused cannot be held guilty under Section 364 of the Indian Penal Code. In this decision, reliance was placed on the case of Upendra Nath Ghose v. Emperor AIR 1940 Cal 561, in which it was obserbed as follows:
To establish an offence punishable under Section 364 it must be proved that the person charge with the offence had the intention at the time of the abduction that the person abducted would be murdered or would be so disposed of as to be put in danger of being murdered.
8. From the aforesaid decisions as also from the law of abduction as contained in Sections 362 and 364 of the Indian Penal Code, the true scope of a case of abduction can "be found out. The law on this point has clearly been laid down by the Hon'ble Supreme Court in the case of Binod Chaturvedi (supra). In view of this authoritative pronouncement, I will not proceed to examine the facts of the present case to find out whether any offence under Section 364 of the Indian Penal Code has been made out or not,
9. In this connection, I will firstly refer to the complaint petition which is dated 27-3-1974 whereas the alleged occurrence is said to have taken place on 17-2-1974. The complainant (P.W. 4) has stated in the complaint petition that the appellants had come to his house and had taken away his brother Banarshi Raut with them to their village on the assurance that they will return back Banarshi Raut on the following day. Trusting the appellant, P.W. 4 allowed his brother to accompany them. The appellants were known to P.W. 4 from before as appellant Sita Raut was nobody else then own Sardhu of Banarshi Raut. In the complaint petition it has no where been stated that any force or deceit was used by the appellants against P.W. 4 for allowing Banarshi Raut to accompany them. From this, it would appear that in the complaint petition there is no story of a Puja to take place at the residence of the appellant on the pretext of which the appellants had requested P.W. 4 to allow Banarshi Raut to accompany them. However, in his evidence P.W. 4 has stated that the appellants had stated before him that there was a Puja at their residence and, therefore, Banarshi Raut may be allowed to accompany them. P.W. 4 has further stated that when the appellants had mentioned about the Puja then only he allowed Banarshi Raut to accompany them. If really there was any Puja at the residence of the appellants for which they had requested P.W. 4 to allow Banarshi Raut to accompany them, there does not appear to be any earthly reason why such an important fact could not be mentioned in the complaint petition itself. This clearly goes to show that the story of Puja has been purposely introduced at the subsequent stage of the case in order to show that a deceitful means was used for the abduction of Banarshi Raut. In this connection, it is important to mention that this complaint petition was filed after about one month 10 days of the alleged occurrence and, therefore, there was no earthly reason why such an important fact could not be mentioned in the complaint petition. This creates reasonable doubt in the case of the prosecution. Force or deceitful means being essential ingredients in order to constitute the offence of abduction could not be established in this case by the prosecution making the prosecution case doubtful.
10. On behalf of the appellants, it has been contended that there has been inordinate delay in filing the complaint petition. As stated above the alleged occurrence is said to have taken place on 17-2-1974 and the complaint petition was filed on 27-3-1974. Thus, there is a delay of about one month ten days in the lodging of the F.I.R. This delay has not been properly explained by the prosecution. The complainant (P.W. 4) has stated in his evidence that on the third day of the alleged occurrence he had gone to the village of the appellants where they could not be found. One Nitu Babu (not examined) told him that they were seen by him at village-Nawalpur. Still P.W. 4 could not find his brother Banarshi Raut within two or three days of the alleged occurrence. According to the allegation made in the complaint petition, P.W. 4 apprehended that his brother Banarshi Raut was abducted for being murdered. In view of such a serious charge, it is really surprising why he could not file the complaint petition till 27-3-1974. It is also surprising that in a situation like this he did not inform the police even when he apprehended that his brother has been murdered. In his statement on solemn affirmation in reply to the Court's question, he was admitted that he had not informed the police till the date of his examination on 27-3-1974. He has further stated that he has informed the Mukhiya of the Gram Panchayat about the alleged occurrence. However, neither the copy of any such information petition could be filed nor the Mukhiya of the Gram Panchayat could be examined in this case. Under the circumstances, it is clear that the prosecution has failed to explain the inordinate delay of more than a month in lodging the information in this case. In the normal course in a case of abduction for the purpose of murder; P.W. 4 who is full brother of Banarshi Raut could not sit tight for more than a month before filing the complaint petition in the Court. In the normal course of human conduct, such a long delay cannot be explained. It, thus, appears there has been inordinate delay in lodging the information in the Court.
11. On behalf of the prosecution, it has been submitted that appellant, Sita Raut is the own Sardhu of Banarshi Raut and in order to grab the property of Banarshi Raut which he got from his Sasural this appellant had abducted him and murdered him. However, P.W. 4 has admitted that Dhrub Bhagat Sala of Banarshi Raut is still alive and under the circumstances it is not clear how even if Banarshi Raut is murdered appellant Sita Raut could get the property of his father-in-law, in as much an he has got a son who is still alive. Hence, the question of devolution of property of his father-in-law could not had arisen during the life time of Dhrub Bhagat the own Sala of Banarshi Raut and appellant Sita Raut. In this view of the matter the motive, as alleged by the prosecution also fails. In this connection it may be said that in a criminal case it is not always necessary to allege the motive for the commission of any offence. However, if a motive is alleged by the prosecution for the commission of the offence it is well settled that the same has to be proved failing which it may create reasonable doubts in the case of the prosecution.
12. In view of the aforesaid finding, it becomes clear that the prosecution has not been able to prove its case beyond all reasonable doubts and, therefore, the appellants are entitled to be acquitted. However, certain law points have been raised on behalf of the appellants in the present appeal and they are required to be answered by this Court in accordance with the provisions of law as interpreted by different Courts.
13. On behalf of the appellants, it has been contended that the case is of the year 1974 prior to the coming into force of the amended Code of Criminal Procedure (Act 2 of 1974) but the trial Court has not proceeded in accordance with the provisions of Old Code and, therefore, on this ground alone the entire proceeding is vitiated. In this connection, it may be stated that no doubt the alleged occurrence had taken place on 17-2-1974 and the complaint petition was filed and the complainant was examined on solemn affirmation in the Court on 27-3-1974 i. e. before coming into force of the New Code on 1-4-1974. On this ground, it has been submitted that the procedure as provided in the old Code should have been followed in the trial of the appellants and since this has not been done the entire trial is vitiated! However, I do not find any force in this contention. In this connection, a reference may be made to Section 484 of the New Code. The proviso of Sub-section (2) (a) of the Section 484 runs as follows:
Provided that every enquiry under Chapter XVIII of the Old Code which is pending at the announcement of this Code shall be dealt with and disposed of in accordance with the provisions of this Code.
This alone is sufficient to show that in a situation like this the procedure as provided in the New Code will/apply and I do not find any merit in this contention of the appellants that the trial Court should have followed the procedure as contained in the Old Code. This contention is accordingly rejected.
14. On behalf of the appellants, it has further been contended that in the present case since the learned S.D.M. by order dated 27-3-1974 had asked the police to inquire into the matter the procedure as contained in Section 156 (3) of the Code should have been followed and the case should have been treated to be a case instituted on police report. I, however, do not find any force in this contention of the appellants. No doubt, in this case the complaint petition was filed on 27-3-1974 but on the same day the complainant (P.W. 4) was examined on solemn affirmation by the learned S.D.M. after which he asked the police to inquire into the matter and to submit a report. There was some confusing with respect to the particular police station within whose area this alleged occurrence had taken place and subsequently another police officer was asked to submit his report, It, however, appears that subsequently three P.Ws. were examined in this case by the learned Chief Judicial Magistrate obviously under the provision of Section. 202 of the Code after which the cognizance was taken for the offence under Section 364 of the Indian Penal Code. Under the aforesaid circumstances, can this case be treated to be a case instituted on police report as contended on behalf of the appellants or this case has to be treated to be a case instituted on complaint petition? This is the moot question to be answered in this case.
15. The facts of this case are not in dispute. They are as follows:
(i) A complaint petition was filed before the S.D.M. under the Old Code.
(ii) The S.D.M. proceeded to examine the complain and on solemn affirmation on 27-3-1974.
(iii) By order of the same date he asked the police to submit a report.
(iv) Subsequently the C.J.M. to whose Court the case was transferred after coming into force of the New Code held an inquiry under Section 202 of the Code, examined witnesses and took cognizance of the offence under Section 364 of the Indian Penal Code and transferred the case to the Court of a Judicial Magistrate for necessary commitment inquiry.
16. These facts are not disputed. Under the circumstances a question arises whether this case should be treated to be complaint case or a police case.
17. The law on this point is well settled that in a situation like this it should be treated to be a complaint case even when after the examination on solemn affirmation the learned Magistrate sent sit to the police for inquiry. In this connection, a reference may be made to the case of Jamuna Singh and Ors. v. Bhadai Shah . In this case the learned Magistrate passed the following order:
Examined the complainant on S.A. the Offence is cognizable one. To S. I. Baikunthpur for instituting a case and report by 12-12-1956.
The police submitted the charge-sheet and accused were committed to the Court of Session where the trial ended in acquittal. Bhadai Shah the complainant filed an appeal under Section 417(3) of the Old Code in the High Court. The High Court set aside the order of acquittal and convicted the appellants who filed an appeal before the Supreme Court. It was urged before the Supreme Court that as the case was not instituted on complaint, no appeal under Section 417 (3) of the Code would lie. The Hon'ble Supreme Court held that when on the filing of the complaint petition the Magistrate applied his mind for proceeding under various provisions of Chapter 16 of the Code of Criminal Procedure (Old Code) he must be held to have taken the cognizance of the offence. It was further held that as soon as the complaint was examined on solemn affirmation the cognizance was taken by the Magistrate. Under the circumstances, the Hon'ble Court went to the extent of holding that even when the Magistrate has used the words "for instituting a case" he was acting under Section 202 of the Code of Criminal Procedure. It was further held that though the police treated complaint petition as F.I.R. and submitted charge-sheet, it would make no difference and the charge-sheet has to be treated to be a report under Section 202 of the Old Code, Thus, the law on this point appears to be well settled.
18. In this connection, a reference may be made to the case of Devarapalli Lakshminarayana Reddy and Ors. v. V. Norayana Reddy and Ors. . In this case, their Lordships considered the provisions of Section 202 of the Code both before and after the amendment of the Code in the year 1973 side by side and held that distinction between for police investigation under Section 156(3) and one directed under Section 202 has also maintained under the New Code. It was further held that if once a Magistrate takes cognizance of the offence is not competent for him to sweep back to pre-cognizance stage and avail of Section 156(3) of the Code. Investigation is exercisable under Section 156 (3) of the Code at. pre-cognizance stage and under Section 202 (1) of the Code at the post cognizance stage when the Magistrate is in seisin of the case In view of this authoritative pronouncement it is amply clear that this case has to be treated as a complaint case and not a police case, notwithstanding the fact that the learned Magistrate who examined the complainant on solemn affirmation asked the police to inquire into the matter and to submit the inquiry report. Thus I do not find any merit in this contention of the learned Counsel for the appellants.
19. In view of the discussions made above, it becomes clear that the prosecution has not been able to prove its case beyond all reasonable doubts and the appellants are entitled to be acquitted.
20. In the result, this appeal is allowed, the judgment of conviction of the learned Court below is set aside and the appellants are acquitted of the charge framed against them. They are directed to be set at liberty.