Indradeo Prajapati and Girja Prajapati vs State of Jharkhand

By Court:

Both the Appellants were put on trial to face charges under Sections 364/34. 302/34 and also u/s 201 of the Indian Penal Code on the allegations that the Appellants along with co-accused Shiv Narayan Prajapati (since died) having kidnapped Anita Rani Rai, wife of the Informant Dulal Chandra Rai and her two minor children and also her maid servant Duleshwarl Kumari committed murder of the said Anita Rani Rai and her two minor children and disposed of dead body In order to screen themselves from legal punishment. The trial court having found both the Appellants guilty for the charges levelled against them sentenced each of them to undergo rigorous imprisonment for life u/s 302/34 and further to undergo rigorous Imprisonment for ten years u/s 364/34 and to undergo rigorous Imprisonment for three years u/s 201 of the Indian Penal Code. However, all the sentences were ordered to be run concurrently.

The case of the prosecution is that the Informant Dulal Chandra Rai being head cook of the rest house of Kalyani Project was living over there since last 4-5 years along with his wife, a minor son and a daughter. On 19.6.1994 when his wife expressed her wishes to go to her maternal uncle''s house along with children, he allowed them to go but when his wife did not return even after 4-5 days, he made enquiry and came to know that his wife had never went to her maternal uncle''s house along with children and maid servant. Meanwhile, he found that the Appellant Indradeo Prajapati and his son Shiv Narayan Prajapati (since died) are not there In their house since 20.6.1994. However after a week, i.e., on 27.6.1994 when the informant came to know that the maid servant has returned back and has been living in Gandhinagar, he went over there and found her in the state of fearfulness. However, on being questioned, she disclosed that on 20.6.1994 at 5 A.M. the Appellant Indradeo Prajapati and his son Shiv Narayan Prajapati (since died) had taken her as well as wife and children of the Informant to the house of Appellant Girja Prajapati (son-in-law of Indradeo Prajapati) and on the next day, i.e., 21.5.1994 In the night all the three Appellants took them to a forest where Girja Prajapati gave tangi blow upon the wife of the Informant, as a result of which she died. She further disclosed that thereupon she fled from there and came to her home where Appellant Indradeo Prajapati and Shiv Narayan Prajapati came and held out threat of dire consequence, If she discloses anything and then both of them took her as well as two children of the deceased to the house of Girja Prajapati and thereafter she was brought to Bermo.

After getting all these informations from the said maid servant the informant along with his staff Fagu Mahto came to the house of the Appellant Indradeo Prajapati and the informant stayed back at the door whereas Fagu Mahto came inside and then told Indradeo Prajapati that the maid servant is with the Informant in the guest house. On hearing this, he reacted immediately by saying that if they would have apprehended that the maid servant would disclose everything to the Informant she would have been done to death. After hearing this he became convince that it were the Appellants and none else who committed murder of his wife and two children and then the Informant gave Fardbeyan (Ext.1) before Officer-in-Charge of Chandrapura Police Station on 2.7.1994. On the basis of which, a case was registered and the matter was taken up for investigation.

In course of investigation, investigating Officer recorded the further statement of the informant as well as the statement of the other witnesses and also got the statement of maid servant, Duleshwarl, recorded u/s 164 of the Code of Criminal Procedure.

After completion of the investigation police submitted charge sheet against these Appellants as well as Shiv Narayan Prajapati (since died) and accordingly, cognizance of the offence was taken and in due course, when the case was committed to the court of sessions, charges were framed to which the Appellants pleaded not guilty and claimed to be tried.

The prosecution in order to prove the charges examined as many as three witnesses. Of them P.W.1 Dulal Chandra Rai is the Informant, who testified In the same manner as the statement was made in his fardbeyan. P.W.2 Rasraj Digar Is the witness, who could know all about the occurrence from P.W.1. P.W. 3, Krishna Murari Sharan, Judicial Magistrate, 1st Class, Buxer has proved the statement of Duleshwarl recorded u/s 164 of the Code of Criminal Procedure as Ext.2.

Strangely enough the prosecution failed to examine said Duleshwarl, who could be the star witness of the case, but In spite of that the trial court having taken her statement made u/s 164 of the Code of Criminal Procedure as a substantive piece of evidence recorded the order of conviction and sentence.

Being aggrieved with that, the Appellants have preferred this appeal.

Learned Counsel appearing for the Appellants submits that admittedly P.W.1 Dulal Chandra Rai the informant and P.W.2, Rasraj Digar are the hearsay witnesses and hence their testimonies are quite Inadmissible but In spite of that the trial court convicted the Appellants on the basis of statement made by Duleshwari u/s 164 of the Code of Criminal Procedure by taking it as a substantive piece of evidence and hence, the trial court erred grossly in recording the order of conviction against the Appellants.

Having heard learned Counsel appearing for the Appellants and on going through the records we do find that P.W.1 the Informant has claimed to have derived knowledge of the culpability of the Appellants through her maid servant (Duleshwari) whereas P.W.2 Rasraj Digar has derived knowledge of the occurrence from the P.W.1 Dulal Chandra Rai but the prosecution has failed to examine Duleshwari and in spite of that the trial court recorded the order of conviction on the basis of the statement (Ext.2) made by Duleshwari u/s 164 of the Code of Criminal Procedure (Ext.2) on the premise that Ext.2 being admissible Is sufficient to hold the Appellants guilty. While holding so the leaned trial court relied upon a decision rendered by Patna High Court In a case of State of Bihar Vs. Govind Singh and Others, holding therein that medical evidence adduced on behalf of the prosecution In absence of the examination of the Doctor is admissible u/s 32(2) of the Evidence Act. But the learned Judge while recording the order of conviction on the basis of the statement made u/s 164 of the Code of Criminal Procedure committed gross error In law. In the decision, referred to above, the Court found that the post mortem report though was not proved by the Doctor, who had held autopsy on the dead body but was held to be admissible In view of Section 32(2) of the Evidence Act as the Doctor''s attendance for evidence could not be secured. Therefore, what has been laid down is that a document in absence of its maker Is also admissible u/s 32(2) of the Code of Criminal Procedure provided it fulfils the conditions as mentioned in Section 32. There could not be denial that statement made by Duleshwarl u/s 164 of the Code of Criminal Procedure proveo by P.W.3 is admissible piece of document but that cannot be used as a substantive piece of evidence, rather it is for the limited purpose either for the purpose of contradiction u/s 155 or for the purpose of corroboration u/s 157 of the Evidence Act. That being so, we do not find any evidence on the record which goes even remotely to prove the charges levelled against the accused persons. In that view of the matter, the court below committed gross error in recording the order of conviction and hence, it is set aside.

Accordingly, this appeal Is allowed. Consequently, both the Appellants are hereby acquitted of the charges levelled against them and are discharged from the liability of their ball bonds. Appellant No. 1 Indradeo Prajapati was already released on bail and the Appellant No. 2 Girja Prajapati, who is presently lodged in Central Jail, Hazariagh, is directed to be released forthwith if not wanted in any other case.