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Kripa Shankar Prasad Sah & Anr vs State Of Bihar on 16 August, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.634 of 2002
Arising Out of PS.Case No. -null Year- null Thana -null District- M UNGER

1. Kripa Shankar Prasad Sah, son of Narsingh Sah

2. Renu Devi, wife of Kripa Shankar Prasad Sah, both are resident of village Khas
Bazar, P.S. Kharagpur, District Munger
…. …. Appellants
Versus
The State of Bihar
…. …. Respondent

Appearance :

For the Appellant/s : Mr. Jagnnath Singh with
Mr. Pushkar Kumar Roy, Advocates
For the Respondent/s : Mr. Binod Bihari Singh, APP

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 16-08-2018

Appellants have been convicted under Section 419 read with

Section 120B of the Indian Penal Code and sentenced to undergo

rigorous imprisonment for three years and fine of Rs.2000/- each with

default clause by the judgment and order dated 9.10.2002 and

10.10.2002 respectively passed by Sri Paras Nath Sinha, the then

Presiding Officer, Additional Court (Fast Track), Munger in Sessions

Trial No. 404 of 1997 and acquitted the appellants and other accused

persons from the charges under Sections 364, 364A and 498A IPC

leveled against them and also acquitted the other accused persons

from the charges under Section 419 read with Section 120B IPC.

2. Prosecution case as per the statement of informant

Kanchan Devi (PW 6), in short, is that she was married to

Dayashankar Prasad Sah, son of Narsingh Sah and as her husband was

habituated to drinking and gambling, taking advantage of that,
Patna High Court CR. APP (SJ) No.634 of 2002 dt.16-08-2018

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informant’s father Meghu Sah, resident of village Malaypur, got a sale

deed dated 22.4.1979 executed by her husband Dayashankar Prasad

Sah with respect to 7 Kathas of land and when the informant came to

know about the sale deed, she enquired from her husband and learnt

that her father Meghu Sah in collusion with her Dewar Kripashankar

Prasad Sah (appellant No.1) got the sale deed executed by fraudulent

manner. Further prosecution case is that Meghu Sah, father of

informant, Kripashankar Prasad Sah, appellant and Raju Varnwal,

resident of village Malaypur, took the informant’s husband

Dayashankar Prasad Sah from his house to Malaypur on 5.8.1989, on

the plea of returning document (sale deed). The informant waited for

her husband for several days but he did not return. Further prosecution

case is that thereafter informant went to Malaypur in search of her

husband but he was not traced out and on return of informant’s father

Meghu Sah and her Dewar Kripashankar Prasad Sah (appellant) the

informant asked them about her husband, upon which they disclosed

that he had gone to Delhi to earn his livelihood. Further case of

prosecution is that Meghu Sah, Kripashankar Prasad Sah and Raju

Varnwal started putting pressure upon the informant to transfer her

property in their favour, on which she protested. It is also alleged that

accused persons always ill-treated her and tortured her and even her

father Meghu Sah joined hands with her Dewar Kripashankar Prasad

Sah in order to grab her property. It is further alleged that her Dewar

and Dewarani, namely, Kripashankar Prasad Sah and Renu Devi
Patna High Court CR. APP (SJ) No.634 of 2002 dt.16-08-2018

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(appellants) assaulted her on 13.12.1994. Further prosecution case is

that appellant Kripashankar Prasad Sah and one Ramdeo Sah along

with one person brought an unknown person before her on 22.2.1997

at 10 A.M. and told her that that person was her husband Dayashankar

Prasad Sah and that person disclosed his name as Mard Bhagwan @

Prasadi Rabidas, who also disclosed that he had got a tea stall at

Bokaro where that unknown person was traced out and that unknown

person was her husband. On the statement of aforesaid two persons,

the informant carefully saw that unknown person and her neighbours

also saw that unknown person but neither the informant nor her

neighbours identified him as Dayashankar Prasad Sah, her husband,

and on enquiry by the informant, that unknown person disclosed his

name as Mard Bhagwan, resident of Bokaro. It appears to the

informant that person has been set up to grab her property. It is also

the case of prosecution that police was called, who recorded statement

of informant Kanchan Devi.

3. On the basis of aforesaid statement, Kharagpur P.S.Case

No. 30 of 1997 was registered against the appellants and other

accused persons. Post investigation, charge sheet has been submitted,

cognizance of the offence has been taken and after commitment the

case ultimately traveled to the file of Sri Paras Nath Sinha, the then

Presiding Officer, Additional Court (Fast Track), Munger for trial and

disposal.

4. During trial, charges were framed against the appellants
Patna High Court CR. APP (SJ) No.634 of 2002 dt.16-08-2018

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and other accused persons under Sections 364, 364A and 498A IPC.

Appellants and other accused persons have also been charged under

Section 419 read with Section 120B IPC.

5. During trial, seven witnesses have been examined on

behalf of prosecution in order to substantiate its case, they are PW 1

Sunil Kumar, PW 2 Kameshwar Prasad Chaurashiya, PW 3 Ramdeo

Sah, PW 4 Mahendra Chaudhary, PW 5 Rajkumar Mandal, PW 6

Kanchan Devi (informant) and PW 7 Dewanand Prasad, S.I.

6. Apart from the ocular evidence, the following documents

have been brought on the record as documentary evidence : Ext.1-

signature of PW 1 on the fardbeyan, Ext.1/1- signature of informant

Kanchan Devi on the fardbeyan, Ext.1/2 to 1/5- signatures of PW 2 on

the finger print, Ext.1/6 to 1/9-signatures of PW 3 on the finger print,

Ext.2-sale deed dated 3.9.1987, Ext.2/1-certified copy of sale deed

No.2167 dated 7.4.1989 executed by Dayashankar Sah, Ext.2/2-

certified copy of sale deed No.2165 dated 7.4.1989 executed by

Dayashankar Sah and Ext.2/3-certified copy of sale deed No. 2166

dated 7.4.1989 executed by Dayashankar Sah.

7. On behalf of defence one witness has been examined,

namely, Gauri Tanti as DW 1 and following documents have been

brought on record as Exhibits : Ext.Ka- the original affidavit No. 1241

dated 24.2.1997 of Narsingh Sah, Ext.Kha- judgment of G.R.No.1951

of 1994 dated 29.1.1999, Ext.Ga- statement of Sunil Kumar in

G.R.No. 1951 of 1994 dated 15.1.1997. Ext.Ga/1- statement of
Patna High Court CR. APP (SJ) No.634 of 2002 dt.16-08-2018

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Kanchan Devi in G.R.No. 1951 of 1994 dated 9.9.1997, Ext.Gha- sale

deed No. 846 dated 20.3.1998 executed by Kanchan Devi in favour of

Niraj Kumar Sah, Ext.Gha/1- sale deed No. 845 dated 20.3.1998

executed by Kanchan Devi in favour of Sangita Devi.

8. Learned trial court on conclusion of trial though acquitted

the appellants and other accused persons from the charges under

Sections 364, 364A and 498A IPC but convicted the appellants under

Section 419 read with 120B IPC and acquitted other accused persons

also from the charges under Section 419 read with 120B IPC and

sentenced them as stated above.

9. Being aggrieved by the impugned judgment and order the

present appeal has been preferred by the appellants mainly on the

ground that on the same fact and on same charge the other accused

persons have been acquitted from the charge under Section 419 read

with Section 120B IPC, whereas appellants have been convicted and

evidence is almost similar against the appellants and other accused

persons and as such the judgment is not sustainable in the eye of law.

10. Further elaborating his submission, learned counsel for

the appellant has submitted that whole evidence shows that it is

Meghu Sah, Raju Varnwal, Kripashankar Sah and Ramdeo Sah, who

set up a person claiming that he was Dayashankar Sah husband of

informant, and evidence is also that accused Meghu Sah purchased

land from Dayashankar Prasad Sah and as such he is beneficiary but

other accused persons have been acquitted and appellant Kripashankar
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Sah and his wife Renu Devi have been convicted and as such the

judgment is not sustainable in the eye of law.

11. On the other hand, learned counsel for the State has

supported the judgment of guilt but at the same time he is also feeling

difficulty in support of the judgment as on the same evidence, other

accused persons have been acquitted from the charges leveled against

them but the appellants have been convicted.

12. In the background of submission of both sides, on perusal

of the evidence it appears that PW 6 is the informant in this case and

she has been examined and cross examined at length. She has stated

about kidnapping of Dayashankar Sah and thereafter he was traceless

and also about ill-treatment of the appellants on her but all accused

persons, including appellants have been acquitted from the charges

under Sections 364, 364A and 498A IPC. Conviction is under Section

419 read with 120B IPC against the appellants. However other

accused persons were acquitted from the above charge. The evidence

of PW 6 in her chief disclosed that her Dewar Kripashankar Prasad

Sah, Raju Varnwal, Ramdeo Sah and her father Meghu Sah brought

an unknown person claiming that he was her husband Dayashankar

Sah and appellant Renu Devi has also told her that he was her

husband and when she enquired from that person he disclosed his

name as Mard Bhagwan alias Prasadi Rabidas and neighbours also

told that he is not her husband. Though in fardbeyan she has stated

only about Kripashankar Sah and Ramdeo Sah who brought the
Patna High Court CR. APP (SJ) No.634 of 2002 dt.16-08-2018

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person, claiming him as her husband, but her evidence discloses that

appellants and all other accused persons brought that person. Even in

her cross examination she has stated that Kripashankar Sah, Raju

Varnwal, Ramdeo Sah and Meghu Sah had brought that unknown

person. Her evidence in cross examination further discloses she had

not lodged the case for abduction of her husband and a case was

lodged against appellants Kripashankar Sah and Renu Devi of marpit

earlier. Her evidence further discloses that her father-in-law and

Dayashankar had asked her that her father had got a sale deed

executed as such what they can do. Her cross examination further

disclosed that it is true that her father had brought one unknown

person to her house, which she has stated before police.

13. From perusal of her entire evidence it appears that so far

setting of one unknown person as her husband is concerned, her

evidence in court clearly shows that appellants as well as Raju

Varnwal, Ramdeo Sah and Meghu Sah had brought that person to her

house and asked her to identify him.

14. Evidence of PW 1 Sunil Kumar Sah disclosed that

Kripashankar Sah, Meghu Sah, Raju Varnwal, Ramdeo Sah and Renu

Devi had brought an unknown person to the house of informant

claiming that he is her husband and that unknown person disclosed his

name as Mard Bhagwan @ Prasadi Rabidas and they were claiming

that person is her husband. Evidence of PW 2 and PW 3 is on the

finger print taken of the Mard Bhagwan @ Prasadi Rabidas though it
Patna High Court CR. APP (SJ) No.634 of 2002 dt.16-08-2018

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appears from the record that those finger prints have not been sent for

examination to Forensic Science Laboratory Expert. Evidence of PW

4 is on the point of execution of Kewala. Evidence of PW 5 disclosed

that he is Bataidar of Kanchan Devi and also on the point that

Kanchan Devi asked her father to return the land.

15. On discussions of the entire evidence on record it appears

that as per prosecution case, Meghu Sah, Raju Varnwal and

Kripashankar Sah have brought a person claiming that he was

Dayashankar Sah and that person was not Dayashankar Sah and they

have been charged under Section 419 read with Section 120B IPC.

However, it appears that though the appellants have been convicted

under Section 419 read with Section 120B IPC and having similar

evidence other accused persons, namely, Meghu Sah, Raju Varnwal

and Prasadi Rabidas alias Mard Bhagwan were acquitted.

16. However, it appears from the impugned judgment that

learned trial court in spite of evidence against appellants and evidence

against Meghu Sah, Raju Varnwal and Ramdeo Sah are similar but

while acquitting the other accused persons from the charge under

Section 419 read with Section 120B IPC learned trial court has

convicted the appellants under Section 419 read with Section 120B

IPC on the same set of evidence, which cannot be held to be just and

proper, rather evidence further shows that it is Meghu Sah, father of

informant, who got a sale deed executed from Dayashankar Prasad

Sah, husband of informant and he is the main beneficiary in this case
Patna High Court CR. APP (SJ) No.634 of 2002 dt.16-08-2018

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but in spite of that he has been acquitted. There is also no evidence

available on record as to how appellants would be benefited by setting

another person as husband of the informant Kanchan Devi (PW 6).

17. In view of above fact, the appellants are also entitled for

acquittal in the present case as evidence is similar as that of Meghu

Sah and Raju Varnwal.

18. Accordingly, this appeal is allowed. The impugned

judgment and order are set aside. As the appellants are on bail, they

are directed to be discharged from the liabilities of their bail bonds.

(Vinod Kumar Sinha, J)

spal/-

AFR/NAFR
CAV DATE
Uploading Date 21.8.2018
Transmission 21.8.2018
Date

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