HARDEO RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole accused/appellant is aggrieved by the judgment and order dated 18.2.2003/22.2.2003 whereby he has been convicted for the offence under Sections 302 and 201 of the Indian Penal Code and for the charge under Section 302 IPC he has been awarded life imprisonment and fine of Rs. 5,000/ - and in default simple imprisonment for a further period of six months. For the offence under Section 201 IPC he has been awarded Rl for five years and a fine of Rs. 5,000/ - and in default simple imprisonment for a further period of three months.

(2.) The prosecution case is based upon fardbeyan of PW -9, Raj Narain Sah, father of the deceased, Vijay Kumar Sah, aged about five years recorded on 1.7.1996 at 9:40 A.M. It discloses that on that date at about 8:30 in the morning the informant came to know that a dead and putrefied body of a child had been found on west of the village and north of railway line near the field of one Parsu Ram Singh. With some co -villagers and his brother the informant went and saw the dead body. With the help of pant, vest and hair available on the head of the deceased he identified the dead body to be that of his son. Vijay Kumar Sah who had been missing from near the house since about 4:00 P.M. of 24.5.1996. In the fardbeyan it was disclosed that the informant, son of Kundan Sah resident of Village, Sonia, PS -Daudpur, District, Saran works in Delhi in Hotel Samrat and in their own house he and his other brothers, four in number live together. In that house his co -villager, Indradeo Rai and his nephew, Lakhan Rai used to live on a rental of Rs. 350/ - per month. In spite of demand they failed to pay the rental in time leading to default for ten months and as a result the informant had got the house vacated from those tenants. Just before Holi festival, Hardeo Rai, the appellant who is brother of tenant Indradeo Rai had come to Delhi to meet his brother. By that time the marriage of informant 'sniece had been finalized. Tilak was scheduled for 25.5.1996 and marriage for 30.5.1996. The appellant had at that time threatened that when the informant would go to the village home he will perform shradha and not marriage. On 23.5.1996 the informant and his brother, Chandrika Sah came to village home. On 24.5.1996 when they were busy preparing for Tilak, at about 4:00 P.M. his son, Vijay Kumar Sah aged five years who was wearing a vest and a half pant suddenly disappeared. They searched all around at their level and when the boy could not be found, the informant 'sbrother, Gautam Sah informed the Daudpur Police Station about missing of the boy on 25.5.1996 and they continued to search for the boy. Since beginning the informant and his family had doubts against the appellant, Hardeo Rai because of threat given at Delhi and when they made an attempt to go towards the house of Hardeo Rai, they were chased by Hardeo Rai at the point of knife and were abused. The informant made a strong claim that on account of enmity, Hardeo Rai, the appellant had killed his son. Vijay Kumar Sah and hidden the dead body at some place under husk and after finding opportune moment he had thrown the same in an open field.

(3.) AFTER recording the fardbeyan Sub -Inspector of Police, B.K. Prasad of Daudpur Police Station appears to have conducted the investigation. He prepared the inquest report of the dead body which has been marked as Exhibit -8. He sent the dead body for post mortem examination and after completing investigation submitted charge -sheet against the appellant on 30.7.1996. It appears that the informant was not satisfied with the investigation conducted by the I.O. and hence a protest petition was filed in the Court below and on 26.8.1996 statement of four of the witnesses including the informant, PW -9 as well as PWs -2, 3 and 4 were recorded under Section 164 of the Cr.P.C. A perusal of the aforesaid statements under Section -164 of the Cr.P.C. discloses that the aforesaid four witnesses have made a consistent claim that just before the disappearance of the deceased boy they had seen the appellant also at the place where sweets were being prepared for Tilak ceremony and he was also not seen there when the boy was found missing. They have also claimed that after recovery of the dead body the police went to the house of the appellant and from there husk (Bhusa) was recovered by the police which had blood stains and bore the stench and foul smell of decayed body. The prosecution has not examined the I.O. as a witness but has tendered in evidence the entire case diary written by him in course of investigation as Exhibit -7.