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,
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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
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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
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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
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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
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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
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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
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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
