Rajiv Lochan Sharma vs State Of Bihar on 7 October, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.576 of 2002
Arising Out of PS.Case No. Year- Thana – District- BANKA

Rajiv Lochan Sharma, son of Late Kailash Sharma, resident ofVillage Mumrama,
PS Amarpur, in the district of Banka
…. …. Appellant/s
Versus
State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Gopal Prasad Roy, Advocate

For the Respondent/s : Mr. Sujit Kumar Singh, APP

CORAM: HONOURABLE THE CHIEF JUSTICE
ORAL JUDGMENT
Date: 07-10-2017

This appeal has been filed by the appellant Rajiv Lochan

Sharma challenging his conviction in Sessions Trial No. 52 of

1998/269 of 2002 by the Additional District Sessions Judge,Fast

Track Court, Bhagalpur, for the offence punishable under Sections

306 and 498 of the Indian Penal Code and sentencing him to

undergo rigorous imprisonment for three years and seven years

respectively.

It is the case of the prosecution that the appellant was

married to one with Smt. A, daughter of the informant in the year

1989. The accused was working in the Regional Office of the Life

Insurance Corporation of India and on 29.06.1997 in the morning it

is said that the accused went to the house of his father-in-law, the

informant, at Bokaro and told him about the marriage of the
Patna High Court CR. APP (SJ) No.576 of 2002 dt.07-10-2017

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informant’s second daughter Kumari B and for settling the marriage

of the said girl with the younger brother of Dr. Hem Shankar

Sharma of Bhagalpr. It was said that he came to take Kumari B to

Bhagalpur so that the marriage can be finalized. The informant is

said to have sent his daughter with the appellant and also requested

his another daughter Kumari C aged about 14-15 years to

accompany the son-in-law, the accused, to Bhagalpur. It is said that

on 04.07.1997 when the informant’s wife made a phone call to the

son-in-law, she was informed that the marriage has been finally

settled and requested to send the informant to Bhagalpur for further

negotiation. Accordingly, on 05.07.1997, it is said that the informant

proceeded to Bhagalpur and reached there on 06.07.1997 at 6.45

A.M., went to the house of his son-in-law but found that the house

closed. On enquiry, he was informed that his minor grand-daughter

has been admitted in the Emergency Ward of Mayaganj Hospital.

When he reached the hospital, he found his younger brother present

there who told him that his elder daughter Smt. A, second daughter

Kumari B and maternal grand-daughter had committed suicide by

coming under a running train. The other daughter Kumari C became

unconscious and was admitted to hospital. The informant stated that

he he believed that the accused has committed some immoral act

with his unmarried daughter Kumari B and, therefore, all the persons
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committed suicide.

Based on this story, and the statement made under Section

161, Cr.P.C. particularly the statement of Kumari C under Section

164, Cr.P.C. before the Magistrate, the appellant was prosecuted and

the prosecution having been upheld this appeal.

Learned counsel for the appellant took me through the

statement of the witnesses, particularly PW 1 Maanju Prasad,

Advocate, who is said to have stated about the train accident taking

place and the cordial relation between the accused and his wife. PW

2 Dr. Hem Shankar Sharma with whose younger brother the

marriage negotiation was going on for Kumari B and was to be

solemnized admitted the fact. PW 3 Subhash Chandra Narayan, an

employee working in the L.I.C. who was testified about the cordial

relation between the family members and argued that there is no

evidence available on record to show that the appellant has

committed any offence with Kumari B which led the other family

members taking the steps of committing suicide. He took me

through the evidence of PW 6 Kumari C and argued that she has

become hostile and has specifically denied the case of the

prosecution even denies giving the statement to the police under

Sections 161, Cr.P.C., to the Magistrate under Section 164, Cr.P.C..

He argued that both the Investigating Officer PW 9 and the doctor
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had clearly stated that there was no evidence of rape on the person

of Kumari B. He argues that even the Magistrate who is said to have

recorded the statement under Section 164, Cr.P.C. and has not been

examined and merely based on the statement of Kumari C under

Section 164, Cr.P.C. conviction has been ordered. According to the

learned counsel, in convicting the appellant based on this evidence

of Kumari C error has been committed and, therefore, it is a case of

false prosecution and the appellant is entitled for acquittal.

Learned counsel for the State supported the case of the

prosecution and argued that the case of the prosecution is proved

and, therefore, the conviction should be upheld.

Having heard learned counsel for the parties and on

perusal of the record it is clear that that the learned trial court has

based its conviction merely on the statement of Kumari C recorded

under Section 164, Cr.P.C. before the Magistrate vide Ext.1/2.

However, in the Court, PW 6 Kumari C has categorically stated that

she does not know about the offence. She speaks about the accident

taken place and only says that the police recorded fardi and she was

asked to sign it. She specifically denied the happenings or any

occurrence. Even though, she was declared hostile, in her cross-

examination nothing comes out of her evidence. The learned

Magistrate, however, discussed the conduct of this witness from the
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statement recorded by her before the Magistrate and chose to believe

her statement before the Magistrate and ordered the conviction.

However, while doing so, the learned Trial Court failed to consider

the fact that the Magistrate who has recorded the statement u/s 164,

Cr.P.C. Ext. 1/2, was not examined and even if the reasons for the

deceased person jumping before the running train, committing

suicide, is the act of the appellant, in regard to Kumari B, the

prosecutrix, the medical evidence of PW 8 Dr. Kailash Jha, who had

committed the postmortem, says that he had examined the body of

the deceased Kumari B, who was more than 19 years of age, found

various injuries, which were the result of an accident but specifically

speaks about there being no sign of any rape, committed on her

body. He gives specific report that there is no injury or sign of any

rape on the private part of the deceased, whom he had examined.

That apart, the informant also says that he suspected that his son-in-

law would have acted so and, therefore, his daughters have

committed suicide. His evidence is based on an assumption, which is

not supported by the medical examination or other corroborative

evidence. The statement of Kumari C, recorded u/s 164, Cr. P.C.

cannot be believed as the same is not corroborated by any medical

evidence, available on record and, therefore, has to be denied. On

the contrary, the evidence of the various officers and the
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investigating officer PW7 goes to show that it was a case of

accident, near Bhagalpur Railway Station.

For convicting the appellant, u/s 306, I.P.C, there has to be

enough evidence to show that he has abetted in commission of the

offence. The reason for abetment, is his act on the deceased Kumari

B, however the so-called alleged act on Kumari B is not proved or

established by the prosecution. That being so, the question of

abetment by the appellant does not arise. As far as the conviction for

offence u/s 498, I. P.C. is concerned, there is not an iota of evidence

which can be said to be available on record to prove these charges.

On the contrary, all the evidence that has come on record,

particularly the statement of PW1 Mannju Prasad, PW 2 Dr. Hem

Shankar Sharma, PW 3 Shubhash Chandra Narayan PW4 Tara

Kant Prasad, indicate about the cordial relation between the

appellant and his wife and her family members and does not speak

about any complaint of harassment etc. made by him, against his

son-in-law.

As the appellant had taken the sister-in-law, Kumari B,

with consent of her father and from the statement of PW2 Dr. Hem

Shankar Sharma, the fact about her marriage with his younger

brother is also proved. That being so, there is no evidence to convict

the appellant u/s 498, I.P.C.

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Accordingly, under the facts and circumstances of the case and

the evidence and material that have come on record, conviction of

the appellant u/s 498 I.P.C, is not sustainable. Taking note of all the

fact and circumstances this Court holds that conviction of the

appellant u/s 498 I.P.C, cannot be sustained. The appeal is allowed

and the conviction is set aside. The appellant is released of the bail

bond and set free.

(Rajendra Menon, CJ)

mrl

AFR/NAFR NAFR
CAV DATE N.A.
Uploading Date 10/10/2017
Transmission N.A.
Date

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