Patna High Court
Tarni Prasad Choudhary & Anr vs State Of Bihar on 14 May, 2013
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court CR. APP (SJ) No.163 of 2001 dt.14-05-2013 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.163 of 2001
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(Against the judgment of .conviction dated 22-05-2001 and order of
sentence dated 23-05-2001 passed by learned Sessions Judge, Katihar in
Sessions Trial No. 290 of 1993)
1. Tarni Prasad Choudhary, S/o Late Bhagwat Lal Choudhary,
2. Subodh Kumar Choudhary, S/o Tarni Prasad Choudhary,
Bothe residents of Haswar, P.S. Manihari, district-Katihar,
.... .... Appellants.
Versus
The State of Bihar
.... .... Respondent.
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Appearance :
For the Appellants : Mr. Rajeev Roy
Mr. Rajendra Prasad Sah
For the Respondent : Mr. B. N. Pandey, A.P.P.
Dated/ the 14th day of May, 2013.
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA
JUDGMENT
Hemant Kumar 1. Heard learned counsel appearing for the appellants as well Srivastava,J.
as learned Additional Public Prosecutor for the State and perused the record.
2. This Criminal Appeal has been preferred against the judgment of conviction dated 22-05-2001 and order of sentence dated 23- 05-2001 passed by learned Sessions Judge, Katihar in Sessions Trial No. 290 of 1993 by which and whereunder, he convicted the appellants for the offence punishable under Sections-364/34 & 201 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for seven years each and also to pay a sum of Rs 2,000/- each as fine and in default of payment, to undergo simple imprisonment for three months and, furthermore, the appellants were sentenced to undergo rigorous imprisonment for three years under Section-201 of the Indian Penal Patna High Court CR. APP (SJ) No.163 of 2001 dt.14-05-2013 2 Code, however, both the sentences were ordered to run concurrently. The learned trial court by the impugned judgment, acquitted co-accused, Abodh Kumar Choudhary of all the charges framed against him.
3. P.W. 5 Dileep Kumar Singh gave a written report to Officer- in-charge of Manihari Police Station on 12-03-1993, stating therein that one, Patiya Kumari @ Bokiya, D/o Late Lalman Mandal, aged about 15 years, who was dumb, was working as maid servant in the house of Tarni Prasad Choudhary since 4-5 months prior but Subodh Kumar Choudhary (appellant No. 2) established physical relationship with her as a result of which, above said Patiya Kumari became pregnant. The rumour of the aforesaid pregnancy, spread over the entire village. He further stated in his written report that Most. Domini Devi, the mother of Patiya Kumari orally, gave information to him about the above said incident. Thereafter, villagers gave a joint petition to higher officials, in respect of the aforesaid incident. He further stated that appellants and co-accused, Abodh Kumar Choudhary, made the said Patiya Kumari, traceless and till the date of filing of the aforesaid written report, Patiya Kumari did not return to her home. The aforesaid persons had confined the mother of Patiya Kumari after giving threatening of dire consequences and, furthermore, Tarni Choudhary, (appellant No. 1) got lodged a false case against him as well as other villagers through Most. Domini Devi, who happens to be mother of Patiya Kumari.
4. On the basis of aforesaid written report, Manihari P.S. Case No. 15 of 1993 for the offences under Sections-364, 376/34 of the Indian Penal Code, was registered on 12-03-1993 and on the same say, formal FIR was drawn up against the appellants and co-accused, Abodh Kumar Patna High Court CR. APP (SJ) No.163 of 2001 dt.14-05-2013 3 Choudhary for the above-said offences, which has been marked as Ext. 2. The case was investigated by the police and after completion of investigation; the I.O. submitted charge sheet against the appellants and co-accused Abodh Kumar Choudhary under the aforesaid Sections. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way.
5. Appellants along with co-accused, Abodh Kumar Choudhary was put on trial and, accordingly, appellants and co-accused, Abodh Kumar Choudhary were jointly charged for the offences punishable under Sections-364/34 & 201 of the Indian Penal Code whereas; appellant No. 2, Subodh Kumar Choudhary was separately charged for offence punishable under Section-376 of the Indian Penal Code. Charges were denied by the appellants as well as co-accused and they claimed to be tried.
6. In course of trial, prosecution examined altogether, 9 witnesses and also got exhibited written report as Ext.-1, formal FIR as Ext. 2 and certified copy of judgment dated 19-07-2000 passed in C.A. No. 154 of 1993 as Ext. 3.
7. Domini Devi (mother of the victim, Patiya Kumari) was examined as court witness No. 1 whereas; defence also produced two witnesses and got exhibited signature of Sri Jiteshwar Prarsad, advocate on Complaint Petition No. 154 of 1993 as Ext. A as well as complaint petition of case No. 154 of 1993 as Ext. B.
8. The statements of appellants and co-accused were recorded under Section-313 of the Cr.P.C. in which, they reiterated their innocence.
Patna High Court CR. APP (SJ) No.163 of 2001 dt.14-05-2013 4
9. Learned trial court, having analyzed the materials available on the record and having relied upon testimonies of prosecution witness Nos. 1 & 8, passed the impugned judgment of conviction and order of sentence, in the manner as stated above.
10. Learned counsel appearing for the appellants, challenged the impugned judgment of conviction and order of sentence, arguing that the learned trial court convicted and sentenced the appellants, merely, on the basis of surmises and conjectures and the finding of learned trial court is erroneous, which is not sustainable in the eye of law. Learned counsel for the appellants highlighted the materials available on the record and submitted that the mother of victim, Patiya Kumari, specifically, stated that Patiya Kumari used to work as maid servant in the house of Raghuveer Mandal and she became pregnant. Furthermore, she has also stated that she was made disappear by Dileep Mukhiya who is none else but the informant of the present case. He also pointed out that Domini Devi (C.W.
1) had filed criminal case against the informant of this case as well as several other persons, prior to institution of this case, levelling allegation of kidnapping of her daughter, Patiya Kumari though the aforesaid case ended into acquittal. He also drew my attention towards the depositions of P.W. 1 & P.W. 8 and stated that both the aforesaid witnesses, are hear- say witness as both the aforesaid witnesses admitted this fact that they had heard about the alleged occurrence in their village and, therefore, the learned trial court committed error in convicting and sentencing the appellants, because the learned trial court based his findings on hear-say evidence and prosecution could not prove its case beyond shadow of all reasonable doubts.
Patna High Court CR. APP (SJ) No.163 of 2001 dt.14-05-2013 5
11. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and order of sentence arguing that P.W. 1 & P.W. 8 claimed to have seen the appellants, taking away the victim and admittedly, after that, the victim, Patiya Kumari did not return to her home and, therefore, learned trial court rightly, convicted the appellants.
12. As I have already stated that altogether, 9 prosecution witnesses were examined; out of them, P.W. 2, Satya Narayan Yadav, and P.W. 6 Shakuntala Devi have been declared hostile by the prosecution. P.W. 1 stated that Domini Devi, the mother of victim, Patiya Kumari, disclosed to him that Patiya Kumari became pregnant and she was made pregnant by Subodh Kumar. This witness, further, stated that Domini Devi also disclosed that at the advice of Tarni Choudhary, she was going to get the pregnancy of Patiya Kumari, terminated. This witness claimed that he had seen appellants; Tarani Choudhary, Subodh Kumar, going with Domini Devi and Patiya Kumari. Admittedly, this witness came to know about the pregnancy of Patiya Kumari from Domini Devi but when Domini Devi was examined as court witness, she, nowhere stated that Patiya Kumari was taken away by the appellants for abortion rather she stated that the informant of the present case, got disappear her daughter. Moreover, P.W. 1 admitted that he had heard about the occurrence in his village.
13. P.W. 3 Ashok Mandal, P.W. 4 Janardan Mandal, P.W. 7 Bhaddo Mandal admitted that they had heard about the pregnancy and taking away of Patiya Kumari and therefore, admittedly, the aforesaid witnesses had not seen Patiya Kumari going with the appellants. P.W. 8 Patna High Court CR. APP (SJ) No.163 of 2001 dt.14-05-2013 6 also admitted that he had heard about the pregnancy of Patiya Kumari. Although she claimed to have seen Patiya Kumari going with the appellants but she could not say the date and month and she also admitted in her cross-examination that for the first time, she had disclosed the aforesaid fact before the court. Therefore, it is obvious from the aforesaid discussions that P.W. 1 and P.W. 8 are also hear-say witnesses on the point of pregnancy of Patia Kumari.
14. P.W. 6 Shakuntala Devi is own sister-in-law of Patiya Kumari. This witness stated that Patiya used to work at the house of Raghuveer Mandal. She also stated that Vinod Kumar Mandal, S/o Rraghuveer Mandal made her pregnant. She also stated that aforesaid Raghuveer Mandal and Mukhiya took Patiya Kumari. CW 1 Domini Devi, being mother of the victim, also supported the aforesaid fact and not only this, Domini Devi also filed Complaint Case No. 154 of 1993 against the informant of the present case and others for taking away her daughter though the aforesaid case ended into acquittal.
15. Ext. 1 would reveal that prior to filing of Ext. 1 villagers had given written petition to higher officials in respect of alleged occurrence and the aforesaid fact is admitted by P.W. 5, who stated that one month prior to filing of Ext. 1 a public petition had been sent to higher police officials in respect of alleged occurrence and he recommended the aforesaid petition.
16. P.W. 1 stated that Dy. Superintendent of Police and Daroga had come to inquire on the public petition. Admittedly, the aforesaid public petition has not been brought on record by the prosecution and according to prosecution witnesses itself, the information Patna High Court CR. APP (SJ) No.163 of 2001 dt.14-05-2013 7 regarding the missing of Patiya Kumari was given through a public petition and the aforesaid public petition was enquired by the police. Admittedly, the aforesaid public petition was filed in respect of a cognizable offence much prior to filing of the Ext. 1 and, therefore, in my view, non-production of the aforesaid public petition before the trial court would be fatal to the prosecution case and an adverse inference would be drawn against the prosecution.
17. Admittedly, prior to filing of Ext. 1 Domini Devi had filed complaint case against the informant of this case as well as others and in the aforesaid complaint case, the appellant, Tarni Prasad Choudhary was a witness, so, the aforesaid fact indicates that there was strained relation between the appellants and the informant of this case.
18. On scrutiny of the evidence available on record, in my view, the prosecution could not succeed to prove its case beyond shadow of all reasonable doubts and the learned trial court committed error in convicting and sentencing the appellants and finding of the learned trial court is erroneous. .
19. Thus, on the basis of aforesaid discussions, this Cr. Appeal is allowed and the impugned judgment of conviction and order of sentence is, hereby, set aside.
20. Appellants are on bail. They are discharged from the liabilities of their bail bonds.
Patna High Court (Hemant Kumar Srivastava, J) Dated/ the 14th day of May, 2013 A.K.V./- AFR