KAILASH SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE present appeal has been filed against the judgment of conviction dated 14.02.1991 and sentence dated 15.02.1991 passed by the Additional Sessions Judge II, Hajipur in Sessions Trial No 61 of 1984/27 of 1987 which arose out of Lalganj Police Station (PS) Case No 53 of 1983. The three appellants, who are father and his two sons, were convicted for an offence under Section 364 of Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for life.

(2.) AN affidavit has been filed today stating that appellant No 1, the father and appellant No 2, his elder son, namely, Kailash Sharma and Mahendra Sharma are dead. The result is that the appeal in relation to Kailash Sharma and Mahendra Sharma abates. This appeal survives only so far as appellant No 3 Garib Nath Sharma is concerned.

(3.) HAVING perused the judgment of the trial Court, we are a bit surprised. The prosecution case is based on a complaint filed by the informant Surajdeo Sharma (PW 7) which was filed before the Chief Judicial Magistrate (CJM), Vaishali at Hajipur on 10th of February, 1983 alleging that his daughter Manju Devi was married to the son of Kailash Sharma (appellant No 1) and brother of Mahendra Sharma and Garib Nath Sharma (appellants No 2 and 3) about 3 years back when she was aged about 17 years. The name of her husband was Shambhu Sharma who was a contractor and stayed and worked at Kathmandu (Nepal). He did not take his wife to Kathmandu. It is alleged in the complaint that on 20.01.1983, appellant Kailash Sharma came to the house of the complainant and disclosed that his daughter had had an argument with the mother -in -law and had run out of the house. They did not know where she went and, therefore, he had come to the daughter's -in -law Maikay searching for her. Appellant No 1 then returned. The complainant states that he searched for his daughter and then on 23.01.1983 lodged a sanha with the Bhagwanpur PS, District -Vaishali in this regard. He made further searches. He alleges that he heard some ladies talk that on the date of occurrence, they had heard the shouts of his daughter in the night at her sasural. She disappeared thereafter. He, therefore, requested the Court to try the three accused persons for an offence under Sections 302 and 201 of IPC for murdering his daughter and concealing her body to conceal evidence of murder. It appears that the CJM forwarded the same to Lalganj PS to register a case in terms of Section 156(3) of Cr P C upon which Lalganj PS Case No 53 of 1983 was registered. Police having taken up investigation, filed chargesheet against the appellants under Section 364 of IPC and not under Section 302 or for that matter 201 of IPC. Upon cognizance being taken, the case has been committed to the Court of Session and solitary charge was framed against all the three accused persons under Section 364 of IPC alone. The appellants pleaded not guilty and were tried. In course of trial, the prosecution examined 10 witnesses. Suffice to say that there was no evidence led to show that Manju Devi, the daughter of the informant had been abducted. There is no evidence of Manju Devi being killed. The best evidence that is of the informant is that on 20.01.1983. appellant No 1 came enquiring whether Manju Devi had come there as she had run out of the house after quarrel with mother -in -law. There is no other material beyond this and it is upon this alone, the trial Court had convicted the three persons for an offence under Section 364 of IPC. We fail to understand that even accepting this allegation on its face value how does it constitute an offence under Section 364, IPC at all. A closer reading of the trial Court judgment, in order to understand the Court's approach, is revealing. We are referring to it more as a warning to people who are in a position to take such decisions as a Judge as to what is not to be done. First, I would like to notice paragraph 5 of the judgment which is quoted hereunder :