Dhananjay Kumar Pandey & Ors vs State Of Bihar Thru.Vigilance on 24 November, 2011

Patna High Court
Dhananjay Kumar Pandey & Ors vs State Of Bihar Thru.Vigilance on 24 November, 2011
Author: Aditya Kumar Trivedi
                       Criminal Writ No.417 of 2001

    Against the order dated 17.3.2001 passed by Special Judge,
   Vigilance, (South Bihar) in connection with Vigilance P.S. Case
   No.37(4) 78/ leading to Spl. Case No. 158/83.
                                 -------------

1. Dhananjay Kumar Pandey

2. Dr. Bijay Kumar Pandey

3. Dr. Ajay Kumar Pandy

4. Sanjay Kumar Pandey

5. Binay Kumar Pandey

6. Mritunjay Kumar Pandey, All sons of Sri Haridwar Pandey
resident of Laxmi Bhawan, South Patliputra Colony, At + P.O.-

      Patliputra, Patna-800013

        .                                           ... ....   Petitioner/s
                                  Versus

State Of Bihar Through Vigilance Commissioner, 12, Baily Road,
Patna.

…. …. Respondent/s
Appearance :

For the Petitioner/s : Mr. Binay Kumar Pandey, Adv.
For the Respondent/s : Mr.B.P. Pandey, Spl.P.P.(Vigilance)
==================================================
P R E S E N T

HON’RABLE MR. JUSTICE ADITYA KUMAR TRIVEDI

Aditya KumarTrivedi, J. Petitioners have prayed for quashing of order

dated 17.03.2001 passed by Special Judge, Vigilance, (South Bihar) in

connection with Vigilance P.S. Case No.37(4) 78/ leading to Spl. Case No.

158/83 whereby and whereunder the prayer of the petitioners have been

refused so far release of articles was concerned.

2. The factual matrix of the case happens to be the father of

the petitioners namely, Haridwar Panday stood as an accused in Vilgilance
2

Case No. 37(4)78 on the basis of which Special Case No. 158/83 arose

wherein so many writs were filed on behalf of father of the petitioners on

different score and lastly vide order dated 12.5.1998 the Hon’ble Apex

Court has directed to conclude the trial on or before 31.12.1998 and in the

aforesaid background speedy trial was being conducted. On account of

illness, as pleaded is the accused, Haridwar Panday became physically

absent and was represented before the court under Section 317 of the

Cr.P.C. and continuing with the aforesaid status, the prosecution evidence

was closed on 29.8.1998 and the case automatically came at the stage of

recording of statement as provided under Section 313 of the Cr.P.C. As

Haridwar Panday failed to give his physical presence for getting his

statement recorded under Section 313 of the Cr.P.C, therefore his

representation was rejected followed with cancellation of bail bond vide

order dated 31.8.1998. Subsequently thereof, as the warrant of arrest non-

bailable could not be executed therefore, proclamation under Section 82 of

the Cr.P.C. was issued and then after covering the stipulated period under

the garb of service report, the attachment as prescribed under Section 83 of

the Cr.P.C. was issued in pursuance of which there has been attachment of

properties for release of which, the instant litigation appears to be in its

third round.

3. Without adverting to the submissions raised on behalf of

the petitioners, as well as learned counsel for the Vigilance, I would like to
3

refer the order of the Apex Court passed in Cr. Appeal No. 169/2000

arising out of S.L.P. (Cri) 3832/1999 and in my view, the aforesaid order

is capable to remove the mist whatever is appearing over the issue and for

that I would like to incorporate the relevant passage which goes like this:-

” From several proceedings pending in this Court we

have also been informed by the accused Haridwar Panday that he is ill

and is getting treatment in AIIMS. In this view of the matter the

Magistrate was not justified in rejecting the application for release of the

property on the sole ground that accused Haridwar Panday is absconding.

The High Court also failed to exercise its jurisdiction vested in law in not

correcting the said error and dismissing the writ petition filed. In the

aforesaid premises we quash the order of the High Court dated

10.05.1999 as well as that of the Magistrate dated 17.02.1999 and We

direct the Magistrate concerned to consider the application filed by the

appellants for release of property on merits”.

4. When the status of accused Haridwar Panday as posed by

learned lower court to be “absconder” has been derecognized by the

Hon’ble Apex Court in the background of the fact whatever been

enumerated in the order itself, then in that situation, the application of

Section 82 or 83 does not arise. In likewise manner, the attachment made in

pursuance thereto happens to be contrary to the direction of the Hon’ble
4

Apex Court. Therefore, the second round of litigation as well as the third

one on having the prayer rejected by the learned lower court vide order

dated 17.3.2001 cannot be held to be legally recognizable as, on account of

the above referred order passed by the Hon’ble Apex Court, no other scope,

was left open to the learned lower court whereunder prayer for release has

been rejected.

5. Consequent thereupon, the order impugned is set aside.

Petition is allowed.

6. Learned lower court is directed to release the articles in

accordance with the seizure list.

( Aditya Kumar Trivedi, J.)

Patna High Court
The 24th Of November 2011
Md. Perwez Alam/AFR

Dhananjay Kumar Pandey & Ors vs State Of Bihar Thru.Vigilance on 24 November, 2011

Patna High Court
Dhananjay Kumar Pandey & Ors vs State Of Bihar Thru.Vigilance on 24 November, 2011
Author: Aditya Kumar Trivedi
                       Criminal Writ No.417 of 2001

    Against the order dated 17.3.2001 passed by Special Judge,
   Vigilance, (South Bihar) in connection with Vigilance P.S. Case
   No.37(4) 78/ leading to Spl. Case No. 158/83.
                                 -------------

1. Dhananjay Kumar Pandey

2. Dr. Bijay Kumar Pandey

3. Dr. Ajay Kumar Pandy

4. Sanjay Kumar Pandey

5. Binay Kumar Pandey

6. Mritunjay Kumar Pandey, All sons of Sri Haridwar Pandey
resident of Laxmi Bhawan, South Patliputra Colony, At + P.O.-

      Patliputra, Patna-800013

        .                                           ... ....   Petitioner/s
                                  Versus

State Of Bihar Through Vigilance Commissioner, 12, Baily Road,
Patna.

…. …. Respondent/s
Appearance :

For the Petitioner/s : Mr. Binay Kumar Pandey, Adv.
For the Respondent/s : Mr.B.P. Pandey, Spl.P.P.(Vigilance)
==================================================
P R E S E N T

HON’RABLE MR. JUSTICE ADITYA KUMAR TRIVEDI

Aditya KumarTrivedi, J. Petitioners have prayed for quashing of order

dated 17.03.2001 passed by Special Judge, Vigilance, (South Bihar) in

connection with Vigilance P.S. Case No.37(4) 78/ leading to Spl. Case No.

158/83 whereby and whereunder the prayer of the petitioners have been

refused so far release of articles was concerned.

2. The factual matrix of the case happens to be the father of

the petitioners namely, Haridwar Panday stood as an accused in Vilgilance
2

Case No. 37(4)78 on the basis of which Special Case No. 158/83 arose

wherein so many writs were filed on behalf of father of the petitioners on

different score and lastly vide order dated 12.5.1998 the Hon’ble Apex

Court has directed to conclude the trial on or before 31.12.1998 and in the

aforesaid background speedy trial was being conducted. On account of

illness, as pleaded is the accused, Haridwar Panday became physically

absent and was represented before the court under Section 317 of the

Cr.P.C. and continuing with the aforesaid status, the prosecution evidence

was closed on 29.8.1998 and the case automatically came at the stage of

recording of statement as provided under Section 313 of the Cr.P.C. As

Haridwar Panday failed to give his physical presence for getting his

statement recorded under Section 313 of the Cr.P.C, therefore his

representation was rejected followed with cancellation of bail bond vide

order dated 31.8.1998. Subsequently thereof, as the warrant of arrest non-

bailable could not be executed therefore, proclamation under Section 82 of

the Cr.P.C. was issued and then after covering the stipulated period under

the garb of service report, the attachment as prescribed under Section 83 of

the Cr.P.C. was issued in pursuance of which there has been attachment of

properties for release of which, the instant litigation appears to be in its

third round.

3. Without adverting to the submissions raised on behalf of

the petitioners, as well as learned counsel for the Vigilance, I would like to
3

refer the order of the Apex Court passed in Cr. Appeal No. 169/2000

arising out of S.L.P. (Cri) 3832/1999 and in my view, the aforesaid order

is capable to remove the mist whatever is appearing over the issue and for

that I would like to incorporate the relevant passage which goes like this:-

” From several proceedings pending in this Court we

have also been informed by the accused Haridwar Panday that he is ill

and is getting treatment in AIIMS. In this view of the matter the

Magistrate was not justified in rejecting the application for release of the

property on the sole ground that accused Haridwar Panday is absconding.

The High Court also failed to exercise its jurisdiction vested in law in not

correcting the said error and dismissing the writ petition filed. In the

aforesaid premises we quash the order of the High Court dated

10.05.1999 as well as that of the Magistrate dated 17.02.1999 and We

direct the Magistrate concerned to consider the application filed by the

appellants for release of property on merits”.

4. When the status of accused Haridwar Panday as posed by

learned lower court to be “absconder” has been derecognized by the

Hon’ble Apex Court in the background of the fact whatever been

enumerated in the order itself, then in that situation, the application of

Section 82 or 83 does not arise. In likewise manner, the attachment made in

pursuance thereto happens to be contrary to the direction of the Hon’ble
4

Apex Court. Therefore, the second round of litigation as well as the third

one on having the prayer rejected by the learned lower court vide order

dated 17.3.2001 cannot be held to be legally recognizable as, on account of

the above referred order passed by the Hon’ble Apex Court, no other scope,

was left open to the learned lower court whereunder prayer for release has

been rejected.

5. Consequent thereupon, the order impugned is set aside.

Petition is allowed.

6. Learned lower court is directed to release the articles in

accordance with the seizure list.

( Aditya Kumar Trivedi, J.)

Patna High Court
The 24th Of November 2011
Md. Perwez Alam/AFR

Ramji Prasad Jaiswal @ Ramjee … vs State Of Bihar Thru.Cbi on 24 November, 2011

Patna High Court
Ramji Prasad Jaiswal @ Ramjee … vs State Of Bihar Thru.Cbi on 24 November, 2011
Author: Dharnidhar Jha
                   IN THE HIGH COURT OF JUDICATURE AT PATNA

                                  Criminal Appeal (SJ) No.430 of 2006
                                                With
                                  Criminal Appeal (SJ) No. 418 of 2006

                 Against the judgment and order of conviction and sentence dated
                 29.5.2006 passed by Sri Jawahar Prasad Ratnesh, Special Judge, CBI,
                 South Bihar, Patna in Special Case no. 52 of 1983.
                 ===================================================

Cr. Appeal (SJ) No. 430 of 2006

1. Shiv Narain Banshal, son of late Gugan Mal Agrawal, resident of
village – Mohania, P.S. – Mohania, District – Rohtas; Proprietor of
M/s Banshal Stores, Mohania

2. Chhetharu Singh, son of Gobardhan Singh, resident of village –
Mohania, Police station – Mohania, District – Rohtas; Proprietor of
M/s Sri Bisunji Bhandar, Mohania.

…. …. Appellant/s
Versus
State Of Bihar
…. …. Respondent/s
with

Cr.Appeal (SJ) No. 418 of 2006
===================================================

1. Ramji Prasad Jaiswal @ Ramjee Prasad Jaiswal, son of late
Bindeshwari Prasad Jaiswal,

2. Ashok Kumar Jaiswal, son of Ramji Prasad Jaiswal,

3. Bal Mukund Jaiswal alias Prasad Jaiswal, son of Ramji Prasad
Jaiswal, all residents of at P.S. & P.O. – Mohania, District – Kaimur
…. …. Appellant/s
Versus
State Of Bihar through C.B.I.

…. …. Respondent/s
===================================================
Appearance :

For the Appellant/s : Sarvshri Kanhaiya Prasad Singh, Sr. Advocate
Sudhir Singh & Raghwanand,
Advocates

For the Respondent/s : Shri Bipin Bihari Sinha, Advocate
===================================================
PRESENT

THE HONOURABLE SHRI JUSTICE DHARNIDHAR JHA

———-

Dharnidhar Jha, J. The appellants of the two appeals along with Chetharu

Singh (since dead) were charged by the learned Special Judge, CBI, South Bihar, Patna

for committing offences under sections 440, 420, 468, 471, 120B IPC and section 5(2)

read with sections 5(1)(d) of the Prevention of Corruption Act, 1947 for being tried with

deceased accused Ajay Kumar Srivastava, who was, during the relevant period, Branch
2

Manager of State Bank of India, Agriculture Market Yard Branch, Mohania, who,

besides being charged for the commission of above offences was also charged under

section 5(2) read with sections 5(1)(d) of the Prevention of Corruption Act, 1947. By

judgment dated 29.5.2006 the appellants and deceased appellant Chethru Singh who was

also a co appellant with appellant Shiv Narain Bansal were found guilty of committing

offence under sections 420, 468,471 and 120B IPC read with section 5(2) read with

5(1)(d) of the Prevention of Corruption Act and, accordingly, they were directed to suffer

RI for three years under sections 420 IPC as also to pay a fine of rupees forty thousand.

They were also directed to suffer RI for three years under section 468 IPC besides paying

a fine of rupees five thousand for their individual conviction for that particular offence.

In addition to the above, each of the appellants was directed to suffer RI for two years

and one year respectively under sections 471 read with 468, 420 and 120B IPC. The

substantive sentence of imprisonment of one year was inclusive of the sentence awarded

to each of the appellants for having committed the offence under sections 5(2) read with

sections 5(1)(d) of the P.C. Act. The sentences passed upon the appellants were directed

to run concurrently.

2. The appeal of appellant Chetharu Singh, one of the appellants in Cr.

Appeal (SJ) No. 430 of 2006 abated due to his death as may appear from order dated

6.4.2011 passed in the said appeal, thus, leaving appellant Shiv Narain Bansal as the

solitary appellant.

3. The two appeals, arising out of the same judgment of conviction, have

been heard together and are being disposed of by this common judgment.

4. The case relates to a period ranging from September to December, 1982

and further relates to defalcating public money in league with the appellants and the

deceased appellant Ajay Kumar Srivastava by forging and fabricating the consignment

notes and showing their purchase by the State Bank of India, Agriculture Market Yard

Branch, Mohania of which the deceased accused Ajay Kumar Srivastava, during that

particular period, was the Branch Manager. It was stated that by misuse of his official

position A.K. Srivastava, in conspiracy with deceased appellant Chetharu Singh who was

the proprietor of M/s Bishnujee Bhandar and appellant Shiv Narain Banshal, Proprietors
3

of M/s Banshal Stores, Mohania and three appellants of Cr. Appeal (SJ) No. 418 of 2006,

namely, Ramji Prasad Jaiswal alias Ramjee Prasad Jaiswal and his two sons Bal Mukund

Jaiswal alias Prasad Jaiswal and Ashok Kumar Jaiswal (also being referred to herein as

Jaiswal appellants), fraudulently and dishonestly obtained payment of Rs.71,456 to

Chethru Singh and Rs. 12,57,810 to appellant Shiv Narain Banshal against three and 31

bills respectively which were accompanied by fake transport receipts issued by three

appellants, namely, Ramjee Prasad Jaiswal and his two sons aforenamed purported to be

issued by M/s Rohtas Carriers showing the consignment of grains to different consignees

and thereby causing loss to the State Bank of India to the tune of Rs.13,29,266 besides

the interest which could have accrued thereon.

5. It was stated further that M/s Bishnujee Bhandar had current account in

the said branch of SBI, which was operated by its proprietor Chethru Singh and a similar

account in the same bank was also held by appellant Shiv Narain Banshal. M/s Rohtas

Carriers were shown the transport agency and it was shown that the three appellants

Ramjee Jaiswal and his two sons were running the transport agency. However, during

investigation, it was revealed that deceased accused A.K. Srivastava, the Branch

Manager of the bank, had purchased three bills from appellant Chetharu Singh, the

proprietor of M/s Bishnujee Bhandar which was bearing DD No. 2,79,321 and 336 and

were consolidately valued at Rs.71,456. The three DDs were encashed at State Bank of

India, Chas branch in respect of M/s Mahavir Bhandar of Chas. The above DDs were

supported by consignment notes or transport receipts allegedly issued by M/s Rohtas

Carriers showing dispatch of goods from Mohania to Chas and the amount of Rs.71,456

covered by three DDs were credited in the account of M/s Bishnujee Bhandar. The above

bills were sent to SBI, Chas branch by State Bank of India, AMY branch, Mohania for

collection but, it was reported that the consignee did not turn up and the bills were

returned unpaid to the SBI, Mohania by which the same has been purchased. During

investigation, it was further revealed that there was no firm in the name and style of M/s

Mahavir Bhandar at Chas and there was no branch or office also of M/s Rohtas Carrier

either at Chas or at Mohania. Thus, it was found that the above three DDs of the value of
4

Rs.71456 only were forged and fabricated showing bogus dispatch of goods to non-

existent consignee.

6. In addition to the above, what further transpired was that A.K. Srivastava,

the Branch Manager, SBI, Mohania also purchased 31 similar bills accompanied by

similar transport receipts issued by the same transporters M/s Rohtas Carriers being

presented by Shiv Narayan Bansal, which was valued at Rs.12,57,810 and the amounts

were credited without verifying any thing, specially, the cash credit limit which could be

available to Shiv Narain Banshal and also exceeding the financial power of A.K.

Srivastava in such cases. It was found that out of 31 bills 17 bills were to be drawn on

the State Bank of India, Posta branch, Kolkata, consignee being M/s Murari Lal Co. and

those bills were bearing nos. DD 292, 293, 294, 297, 298, 302, 303, 307, 308, 309, 311,

315, 319, 320, 332, 337 and 338. The remaining bills out of 31 were to be drawn at SBI,

Burra branch, Kolkata and the consignees being M/s Shyam Sunder and Co., M/s Murari

Lal and Co. and M/s Dwarika Prasad Gauri Shankar, Kolkata. It was revealed that A.K.

Srivastava, Branch Manager had purchased the bills indiscriminately without making any

appraisal thereof and without verifying the nature and extent of business transaction of

the drawers of the bills, which were also accompanied by the consignment notes issued

by the transporter M/s Rohtas Carriers which were also returned back unrealized and

dishonoured.

7. In spite of the above, A.K. Srivastava continued to purchase the bills from

the same parties, i.e., M/s Bansal Stores owned by appellant Shiv Narain Banshal and it

was found that Shiv Narain Bansal had a sanctioned financial limit only of Rs.1,50,000

and likewise, M/s Bishnujee Bhandar had also a sanction limit of Rs.50,000 only on their

current accounts. But, without apprising their business transactions or reviewing the

same, deceased accused A.K. Srivastava continued to purchase the D.D. bills from the

aforesaid two firms in excess of his own discretionary powers which was up to Rupees

two lacs in respect of the nature of the transaction which at the same time exceeded the

financial limits which were put on the current accounts of the appellants Shiv Narain

Bansal and Chetharu Singh. He did not even care that earlier purchased similar bills had

bounced unpaid and had not even been entered into the relevant registers and retained the
5

dishonoured bills in his personal possession and custody so as not to allow any restriction

to be imposed on illegal transaction and thus continued the same.

8. As regards M/s Rohtas Carriers and the case in respect of appellant

Ramjee Jaiswal and his two sons, who are appellants before this Court, it was found that

M/s Rohtas Carriers had no vehicles of their own nor had any branch out of Bihar. They

did not even have any godown or business premises and they had no branch or office in

Mohania and had rather no business in the area. In fact, it was found that the

consignment notes which were the basis for purchasing Hundi or DDs were retained by

the appellant Ramjee Prasad Jaiswal or any of his two sons without any sequence of date

or serial number A.K. Srivastava in conspiracy with the present appellant and deceased

appellant cheated and defalcated the bank and thus, wrongfully caused a loss to it to the

tune of Rs.13,29,266.

9. Two formal reports were registered by the CBI vide R.C. 18 of 1983 and

17A of 1983 and on that basis the investigation concluded by submitting charge sheet

against accused persons which went to trial and that ended in the impugned judgment.

10. The defence, which appears from the trend of cross examination of

witnesses was that Hundis or bills which have been referred to as DDs and which were,

admittedly, purchased by the deceased accused A.K. Srivastava in his capacity as Branch

Manager of concerned branch of S.B.I. were not fake, neither the consigner nor the

consignee were fictitious persons and in fact appellants Ramji Prasad Jaiswal, Ashok

Kumar Jaiswal and Bal Mukund Jaiswal had the authority from the proprietors of M/s

Rohtas Carriers to issue them as their agents who were working in Mohania and there

might be other acceptable reasons for the non payment of those demand drafts.

11. During the course of trial, the prosecution examined as many as 27

witnesses. P.Ws 1 and 6, namely, Sheopujan Singh and Kedar Nath Gupta, who were

constable and Deputy Superintendent of Police in the CBI tendered the FIRs (Ext.1 and

1/a) of the two cases RC 18/83 and 17A/83. So far as P.W. 2 A.K. Krishnan was

concerned, he was a clerk in the Vigilance Department of the SBI and he proved the

order sanctioning the prosecution of A.K. Srivastava which was marked as Ext. 2. P.W. 4

Chandra Mohan Sahay and P.W. 5 K.N. Jha were witnesses before whom specimen
6

signatures of the accused persons were obtained by the CBI and those have been marked

Ext. 4 series right from 4/14 to 4/48. P.W. 20 Rajendra Sinha was also a formal witness

who deposed on the writings of the case diaries of the two cases on account of the non

examination of the I.O.

12. So far as the other witnesses are concerned, P.Ws 3 Rameshwar Lal

Sharma was the proprietor of M/s Rohtas Carriers. It appears from his evidence as also

from the evidence of P.W. 25 Ved Kumar, who was the Business Executive of the said

firm M/s Rohtas Carriers, that it was originally a partnership firm, the deed in respect of

which was brought into existence on 2.5.1979, but the partnership was dissolved on

28.11.1979 on account of the appellant Ramji Jaiswal walking out of the joint venture

leaving the firm completely in the hands of P.W. 3 Rameshwar Lal Sharma. It is true that

P.W. 3 had admitted and as may appear from Ext. 1/1 and 1/ 2 which has also been

marked Ext. A on behalf of the defence as may appear from paragraph 12 of P.W. 3 that

he had issued some sort of authorization in favour of Ramji Jaiswal to act as an agent of

his firm, namely, M/s Rohtas Carriers, the head quarters of which was in Patna, as may

appear from the evidence of P.W. 25 Ved kumar, who has given a detailed account

regarding the firm never having any office anywhere either at Mohania or at any of the

places, like, Arrah, Sasaram, Aurangabad or Dehri-on-Sone and who has further stated,

as may appear from paragraph 4 of P.W. 5, that his firm transported the consignment

only to places where it had its branches and that there was no branch in Calcutta, Delhi,

Mumbai and Chas and, as such, there was no transaction with any one at those places. So

far as the evidence of P.W. 3 Rameshwar Lal Sharma, the proprietor of the firm M/s

Rohtas Carriers was concerned, he was tendering evidence on the consignment notes

and was stating as to who had written those notes or signed the notes. Ext. 2 to 2/13 were

in the hands of the appellant Ramji Jaiswal and three out of those 14 consignment notes

or transport receipts, as they have been described to be called by the witnesses who were

the employees of the State bank of India as may be disclosed from the discussion of their

evidence, were bearing the signatures of deceased appellant Chetharu Singh while the

remaining 11 were carrying the signature of appellant Shiv Narain Banshal. Another set

of eleven consignment notes were written by appellant Ashok Kumar Jaiswal and they
7

were marked Ext. 3/14 to 3/24 and each of them was bearing the signature of appellant

Shiv Narain Banshal. Five consignment notes or transport receipts were written by

appellant Bal Mukund Jaiswal which were marked Ext. 3/25 to 3/29 and 4 by appellant

Shiv Narain Banshal which all were bearing the signature of appellant Shiv Narain

Banshal and later four notes were marked Ext. 3/30 to 3/33. These sets of consignment

notes, as may appear from evidence of P.W. 3, were issued in 1983 by appellants Ramji

Prasad Jaiswal, Ashok Kumar Jaiswal and Bal Mukund Jaiswal as proprietors of M/s

Rohtas Carriers. This would appear from paragraph 5 of the evidence of P.W. 3 which

further reveals that M/s Rohtas Carriers was never having any office or existence in

Mohania and that the three appellants, namely, Ramji Prasad Jaiswal, Ashok Kumar

Jaiswal and Bal Mukund Jaiswal were not competent to issue them as they had shown

themselves the proprietors of M/s Rohtas Carriers.

13. It is true that Ext. 1/ 2 or Ext. A, which is the authorization in the writing

of P.W. 3 was issued in favour of the appellant Ramji Prasad Jaiswal but that was for the

limited purpose of acting as an agent of M/s Rohtas Carriers in Mohania. It was never

creating any interest in their favour in M/s Rohtas Carriers and that could have never

allowed or permitted them to step into the shoes of the proprietors of M/s Rohtas

Carriers. I have scanned the evidence of P.W. 3 very carefully as have done that of other

witnesses, only to find out as to whether there was any challenge or case set up by the

Jaiswal set of appellants that they had issued the notes in their capacities of being the

proprietors. I also scanned the evidence with a view to finding out as to whether they

have challenged that they had not issued the notes and that too in the capacity of being

the proprietors of the said carriers. I must note with all emphasis at my command that

there was not even a line of suggestion thrown to any of the witnesses least to talk of

P.W. 3 Rameshwar Lal Sharma that Ramji Prasad Jaiswal or the remaining two Jaiswal

appellants were the proprietors of the firm on the day the notes were issued. Thus, in

spite of accepting the plea of the defence that Ext. A, the authorization, issued by P.W. 3

in favour of Ramji Prasad Jaiswal the consignment notes which were the instrument of

defrauding the public fund through the SBI, Mohania, were out and out fabricated and

forged documents inasmuch as none of the three Jaiswal appellants had the capacity of
8

issuing them as proprietors. This is the reason that in spite of the learned counsel on

behalf of the three appellants pointing out to me, time and again, that that particular

defence on Ext. A, the case of three appellants have to be accepted, I am rejecting their

plea by holding that the consignment notes or the transport receipts, as they are known in

banking or business parlance, were quite fabricated documents as I have just pointed out

that none of the three Jaiswal appellants were the proprietors of M/s Rohtas Carriers and

were not authorized in that capacity to issue them.

14. In addition to the above, what may further be found from the cross-

examination of P.W. 3 Rameshwar Lal Sharma, undisputed proprietor of M/s Rohtas

Carriers that Jaiswal appellants were indeed admitting the fabrication of the transport

receipts or consignment receipts by themselves, as they were admitting the issuance of

the documents. As such, there is no denial anywhere in the plethora of evidence coming

from the Jaiswal accused even faintly suggesting that they had played no role in their

fabrication or the writings as deposed to by P.W. 3 to be theirs, were, in fact, not their.

15. So far as other witnesses are concerned, P.W. 8 Lal Muni Singh again

appears of a formal character, but nonetheless an important witness. He was, undeniably,

an employee and was working in M/s Banshal Stores which was the firm of appellant

Shiv Narain Banshal, which was using the fake and forged consignment notes to send the

consignment of things to different destinations in Chas and Calcutta and was receiving

the price of the bills created on that account. P.W. 8 has stated that he was acquainted

with the writings of Shiv Narain Banshal and 31 Hundis, i.e., Ext. 7 to 7/30 were in his

hand. Likewise, the remaining three bills, i.e., Ext. 3/31 to 3/33 were bearing the writings

of Shiv Narain Banshal but were also bearing the signature of deceased appellant

Chetharu Singh, thus, there is complete evidence as to who were the participants in

forging and fabricating the consignment notes or transport receipts for defrauding the

State Bank of India in league with its Branch Manager A.K. Srivastava.

16. Out of the remaining witnesses P.W. 9 Ram Briksh Prasad and P.W. 21

Vijay Shankar Mishra were tendered by the prosecution for being cross examined by the

defence. The remaining witnesses, most of whom are the employees or officers of the

SBI, have spoken on the procedure as to how the DDs are encashed on the basis of
9

consignment notes, except P.Ws 22 and 23 who are the commission agents and

proprietors of M/s Shyam Sundar & Co., one of the firms in Calcutta, which was,

allegedly consigned some goods. The sum and substance of the evidence of witnesses,

like, P.W. 10 Satya Narain Rai, who was the passing officer in the SBI, Chas, P.W. 11

Om Vilas Kumar, another employee and officer in the SBI, P.W. 12 Vishwanath

Chandra, P.W. 13 Shambhu Suman and P.W. 14 Birendra Kumar who succeeded Branch

Manager A.K. Srivastava after the fraud was detected as also P.W. 15 Shivanand Tiwari

who was the cashier at the relevant time in the same branch of the SBI, Mohania along

with P.W. 16 K.J. Devasia and P.W. 17 A.R. Ansari, yet another manager of the same

bank with a highly placed officer like P.W. 19 R.P. Gupta who was at the relevant time,

one of the Regional Managers posted at Patna is on different aspects of the encashment

of Hundis prepared on the basis of consignment notes or transport receipts. In addition to

that, P.Ws. 10 and 11 and others have also produced different registers showing the entry

or non-entry of the documents which was required to be made in them.

17. The sum and substance of the evidence of these witnesses was that when a

business man required money after having consigned his consignment to any transporter

who is necessarily to be a registered transporter with the SBI, he could approach a branch

of the SBI with consignment notes or transport receipts which are prepared in four

copies, two copies of which are retained by the consigner, one is given to the driver of

the vehicle and one is retained in the office of the transporter. One of the copies is

presented with a bill in the bank in case of want of money and the bank enters it into the

Demand Draft Receipt Register after having purchased it. As soon as the purchase is

made, amount of the consignment note which may be constituted by freight and other

charges which could be levied on account of the consignment of goods has to be credited

into the account of the business man. Each business man has a specified cash credit limit.

In case of appellant Shiv Narain Banshal, witnesses have stated that it was about Rs.1.5

lac. While purchasing the consignment notes, the manager of the branch has to ensure

that sufficient cash credit was available in the current account of the business man and at

the same time his own financial limits in purchasing the Hundis were not exceeded.

Witnesses have said that in case both of appellants Shiv Narain Banshal and Chetharu
10

Singh, not only their cash limits were exceeded but also that their current account were

deplete with money and further that the branch manager, A.K. Srivastava, had exceeded

his limits.

18. The further procedure is that when the transport receipts or consignment

notes are received with the Hundis which are presented for purchase and the same are

purchased, the Hundis are sent to another bank of the place where the consignee could

be living. The branch which purchases the Hundis are called ORIGINATING BRANCH

while the branch which receives it for realization of the amount from the consignee is

called the RESPONDING BRANCH. P.W. 10 Satya Narain Rai was the passing officer

in SBI, Chas where was located one of the consignees, namely, M/s Mahavir Bhandar.

P.W. 10 has stated that on notice being given, no one turned up on behalf of M/s Mahavir

Bhandar, Chas to pay up the value of 31 Hundis which were accompanied by transport

receipts/consignment notes from the counter part branch of SBI, Mohania for realization

of bill amount from the said consignee so that as soon as the payment was made the

transport receipts and Hundis were realized in favour of consignee who could collect the

consignment from the transporters.

19. That there was no M/s Mahavir Bhandar at Chas has been stated too by

P.W. 7 Sheo Lal Mahto, who was one of the postmen posted in Chas post office. He has

stated that there were many areas or bits which were constituted by mohallas or other

localities in which the township was divided for delivery of postal articles and he used to

deliver registered letters in some of them or most of them. He stated that he received a

registered letter addressed to M/s Mahavir Bhandar, Chas and on making best of his

efforts he could not locate any such establishment. During cross examination, it appears

suggested to the witness by putting questions that it was located in Market Yard, Chas

but again there is no specific address given by the defence so as to negating the effect of

the evidence of P.W. 7 that a particular address could be assigned to the said firm,

namely, Mahavir Bhandar. Likewise, his evidence was castigated by cross-examining

P.W. 7 on the date on which he had gone to look for the establishment and when he had

made an endorsement on the envelop that the establishment was not found. This question

was completely meaningless as the records could have been the only substantial proof to
11

castigate the evidence of P.W. 7 by seeking their production from the post office so as to

point out to the court as to on which date the registered envelop was received in Chas

and till which date it was retained and thereafter returned to the sender post office. There

does not appear to me any reason to doubt the evidence of Sheo Lal Mahto (P.W. 7), the

Postman of Chas. Likewise, on similar lines is the evidence of P.W. 22 Bishwanath

Jhunjhunwala, the Commission Agent of Calcutta through whom the three firms, namely,

M/s Murari lal & Co., M/s Shyam Sundar & Co. and M/s Dwarika Prasad Gauri Shankar

were consigned different consignments through consignment notes by appellant Shiv

Narain Banshal and Chetharu Singh. One of the firms M/s Shyam Sundar & Co. had

come before the court through its proprietor P.W. 23 Shyam Sundar Agrawal to say that

there was never ever any intimation nor did he receive any consignment in that behalf

which could indicate that he had been consigned any goods by the two consigner

appellants Shiv Narain Banshal and Chetharu Singh on the basis of the consignment

notes written and prepared by the three Jaiswal appellants. Likewise, P.W. 22

Bishwanath Jhunjhunwala also stated that there was no firm of the names as indicated

above, who had been consigned goods allegedly by the appellants on the basis of the

consignment notes. Thus, it is established satisfactorily that the consignees were

fictitious or non existent firms or in case they were existing, they had no knowledge of

any consignment being received or sent to them.

20. Coming back to the procedure, as soon as the Hundis are received, notices

are sent to the consignee for making payment so that the same be released in his favour

for receiving the goods. The bank employees, like, P.Ws 10, 11 as also other witnesses

who come to depose in this case stated that after having received the Hundis, they were

entered into the Payment Remittance Receipt Register (Ext.8) and then also in Demand

Draft Receipt Register and thereafter sent the notice, but none turned up. The same is the

evidence of P.W. 11 also. Likewise, P.W. 12 has also given the same evidence as to how

on having received the documents in Burra branch in Calcutta, no one had turned up to

honour the Hundis and, as such, they were returned back to the originating bank at

Mohania. The procedure further was that on receiving back unpaid or dishonoured

Hundis, the Branch Manager of the originating branch had to ensure the entry of the
12

same in the Demand Draft register which is the register maintained by the bank also for

issuing the demand draft. The Branch Manager thereafter has to initiate process of

realizing the sum covered by Demand Drafts or Hundis. P.W. 19 R.P. Gupta who was

one of the high ranking officers of the SBI as also P.W. 14 Birendra Kumar, who

succeeded Branch Manager A.K. Srivastava in spite of P.W. 17 who was also a manager

in the same bank have uniformly stated that not only A.K. Srivastava exceeded his own

purchase limits but also allowed the appellant Sheo Narain Banshal and Chetharu to

have Hundis sold to the bank in excess of their financial limits and during most of the

periods their current account was not having any money so that money could be realized.

It appears that the fact was in full knowledge of A.K. Srivastava and he was making

some interpolations in the ledgers of the appellants as may appear from the evidence of

P.W. 17 A.R. Ansari and P.W. 15 Shivanand Tiwari by use of a pencil.

21. Evidence of above witnesses, who worked in Mohania branch, i.e., P.Ws

13, 14, 15, 17 and above all, P.W. 19 R.P. Gupta, a high ranking officer of the SBI

indicates that not only the Branch Manager A.K. Srivastava exceeded his limits and

allowed the limits of two accused Shiv Narain Banshal and Chetharu Singh being

undermined but, after he had received the Hundis from the responding branches of the

SBI, was also not making any entries in their respect in the relevant registers and was on

enquiry, as may appear from the evidence of P.W. 14, was telling him that those were

lying in the safe of the bank. Thus, the evidence indicates as to how callously but

consciously the accused A.K. Srivastava had not only plundered the finance of his own

bank but allowed the same to be plundered by the remaining appellants.

22. On reading of the evidence of the witnesses, I come to the conclusion that

the appellants were appropriately convicted and correctly sentenced. The appeals, in the

result, fail and are hereby dismissed.

(Dharnidhar Jha, J.)

Patna High Court,
The 24th November, 2011,
NAFR/Anil/

Ram Kishun Sah & Anr vs State Of Bihar & Anr on 15 November, 2011

Patna High Court
Ram Kishun Sah & Anr vs State Of Bihar & Anr on 15 November, 2011
Author: Gopal Prasad
                                    Criminal Appeal (SJ) No. 301 of 1999
                                                    ~~~~~~
              Against the judgment of conviction and order of sentence dated 18.09.1999
              respectively passed by Shri Gangadhar, learned Sessions Judge, Saharsa in Sessions
              Case No. 67 of 1992.
                                                   ~~~~~~
              1. Ram Kishun Sah, S/o. Anandi Sah.
              2. Bhubneshwar Sah.
              3. Deo Narayan Sah.
                      Both appellant No. 2 and 3 sons of Late Tilak Sah, resident of village -
                      Bishunpur, P.O. and P.S. Sonebersa Kutchery, District - Saharsa.
                                                                             .... .... Appellants.
                                                    Versus
              1. The State Of Bihar.
              2. Hari Lal Sah, S/O Late Ram Charitar Sah, resident of village - Bishunpur, P.O.
                  and P. S. - Sonebersa - Kutchery, District - Saharsa.
                                                                            .... .... Respondents.

~~~~~~
Appearance :

For the Appellants : Mr. Chandra Shekhar, Sr. Advocate.

Mr. Nikunj Shekhar, Advocate.

For the Respondent : Mr. Sujit Kumar Singh, A.P.P.

~~~~~~
PRESENT

HON’BLE MR. JUSTICE GOPAL PRASAD

GOPAL PRASAD, J. Heard learned counsel for the appellants and learned counsel for the

State.

2. The appellants have been convicted under Section 323 of the Indian Penal Code

and sentenced to undergo rigorous imprisonment for four months.

3. The prosecution case, as alleged, is that while the complainant was returning after

purchase of fertilizer from the money he got as pension to the tune of Rs.6,000/- he was

intercepted and snatched the money and assaulted. However, a case was lodged under

Sections 379 and 307 of the Indian Penal Code and during the trial the charge was framed

but the learned Sessions Judge acquitted the appellants of the charge under Sections 379

and 307 of the Indian Penal Code. However, the trial court convicted the appellants for the

offence under Section 323 of the Indian Penal Code.

4. Learned counsel for the appellants, however, submits that the benefit of Section
2

360 Cr. P. C. has not been provided though the appellants have been acquitted under

Sections 379 and 307 of the Indian Penal Code and convicted for the offence under Section

323 of the Indian Penal Code.

5. However, having regard to the facts and circumstances that the occurrence is of the

year 1990 as the appellants have not been acquitted for the offence under 379 and 307 of

the Indian Penal Code and have only been convicted under Section 323 of the Indian Penal

Code. hence, he has suffered due to the protracted litigation and hence under the facts and

circumstances, the benefit of Section 360 Cr. P. C and Sections 3 and 4 of the Probation of

Offenders Act be provided and the appellants are acquitted on due admonition. Hence, the

appeal is dismissed with modification in sentence.

(Gopal Prasad, J.)

Patna High Court, Patna.

Dated, 15th November, 2011.

Kundan/N.A.F.R.

Girish Kumar & Ors vs The State Of Bihar Through Vig on 15 November, 2011

Patna High Court
Girish Kumar & Ors vs The State Of Bihar Through Vig on 15 November, 2011
Author: Dharnidhar Jha
                               Criminal Appeal (SJ) No. 918 of 2011
                                             -------

Against the order dated 23rd June, 2011 passed by Shri Ramesh Chandra Mishra,
Authorized Officer, Special Court II, Patna in Special Case No. 7 of 2010.

——–

1. Girish Kumar, son of Late Sidheshwar Sharma,

2. Saphalta Devi, wife of Girish Kumar,

3. Roshan Kumar, son of Girish Kumar,

4. Rajnish Kumar, son of Girish Kumar, all residents of Park Road,
Kadamkuan, Patna,

5. Sachchidanand Singh, son of late Sidheshwar Sharma, resident of
village – Tineri, P.S. – Masaurhi, District – Patna
…………… Appellants

Versus

The State of Bihar through Vigilance ……………….. Respondent.

——–

        For the Appellants         : Sarvshri Rana Pratap Singh,
                                              Chittaranjan Sinha, Sr. Advocates
                                              Pramod Kumar, Advocate

        For the Vigilance          : Sarvshri Ramakant Sharma, Sr. Advocate
                                              Arvind Kumar, Advocate.
                                              --------

                                          PRESENT

                      THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA
                                        -------


Dharnidhar Jha, J.             The appellants were respondents before the learned

Authorized Officer, Special Court II, Vigilance, Patna in Special case no. 7 of

2010 which arose out of Vigilance P.S. Case no. 39 of 2006. The appellants

challenge the order passed by the learned Authorized Officer designated under

Bihar Special Courts Act, 2009 (hereinafter referred to as the ―Act‖) dated 23rd

June, 2011 on a petition filed under section 13 of the Act directing the

confiscation of the properties described in Schedules A and B of the petition and

further directing the appellants to surrender and deliver the possession over the

properties contained in Schedules A and B of the petition in favour of the District

Magistrate, Patna, who was authorized by the learned Authorized Officer to take

possession of the same within thirty days of the impugned order. An alternative
2

direction was also issued to the District Magistrate, Patna that, in case of refusal

on behalf of the appellants to surrender the properties as directed by the

Authorized Officer, possession over the properties shall be resumed by the

District Magistrate even if it required use of some force.

2. The facts leading to the passing of the impugned order may be

noticed. Undisputedly, the appellant Girish Kumar was appointed as a clerk on

compassionate ground on account of the demise of his father Siddheshwar

Sharma in Patna Treasury, Collectorate, Patna. The appellant was appointed in

1992 and from 1992 to 2004 he had, reportedly, amassed huge properties, in

various forms, to the tune of Rs.51,10,826. It appears that certain Brajeshwar

Prasad Singh had filed a complaint before the Lokayukta, Bihar and that was

transmitted for enquiry by the Vigilance Department of the Government of Bihar

and, accordingly, after enquiry, Vigilance P.S. Case no. 39 of 2006 was instituted

and during investigation of the case, it was found out that the appellant Girish

Kumar had amassed the properties by commission of the offence defined under

section 2(d) of the Act and, as such, the application was filed under section 13 of

the Act before the Authorized Officer by the State of Bihar.

3. It was stated that the total income of the appellant Girish Kumar

from his salary during 1992 to 2004 was Rs.6,95,340 only, one third of which

came to Rs.2,31,780. In addition to the above, the delinquent public servant, i.e.,

the appellant Girish Kumar had also received Rs.72,738 as half of the retiral

benefits of his late father, the total of which was Rs.1,45,476 only. It was stated

that the total assets which was found in possession of the appellant Girish Kumar

either in his own name or in the names of other appellants stood at Rs.51,10,826

and after deducting the sum total of Rs.2,31,780 and Rs.72,738 from the total

assets of Rs.51,10,826, the disproportionate asset found in possession of the

appellant in any form was of Rs.48,06,308. The split up of the assets in the forms

of bank deposits in different accounts standing in the name of either Girish Kumar

or in the names of other appellants was given in Schedule A besides stating that
3

the appellants had a motorcycle bearing registration number BR-1W-1160 of the

value of Rupees thirty eight thousand and he had also purchased a pistol and

cartridges as per licence which was of the value of Rupees forty thousand. In

addition to the above, the appellant Girish Kumar had a Maruti Zen car costing

Rs.4,48,190 in addition to possessing a tractor and a trailer in the name of his

brother Sachchidanand Singh, which was of the value of Rupees three lacs. The

immovable properties were described in Schedule B and as per those details the

appellant was found in possession of a plot of land measuring 1905 sq. ft. in

Shivpuri mohalla, Patna and another at Park Road, Kadamkuan, valued at

Rs.3,67,362 and Rs.5,28,308 respectively, both properties standing in the name of

Smt. Safalta Devi, one of the appellants who was the wife of appellant Girish

Kumar. A third house was standing in the same Park Road, Kadamkuan, which

was of the value of Rs.5,28,392 and thus, the value of the immovable properties

along with buildings came to Rs.14,24,056 only. It was alleged that the properties

were acquired by commission of the offence under section 2(d) of the act and they

were liable to be confiscated in view of the provisions of the Act.

4. On presentation of the petition under section 13 of the Act, it

appears, notices were issued to the appellants and they appeared in response

thereto and filed their respective show cause cum statements in defence before the

learned Authorized Officer. The main statement of defence appears filed by the

appellant Girish Kumar and while the other appellants were also filing their

written statements of defence, they were mainly relying upon the major part of the

statement made by appellant Girish Kumar. It was stated by the appellant Girish

Kumar that Maruti Zen car was not valued at Rs.4,48,190 rather it had costed him

Rs.3,33,339 only and the same was purchased on availing a car loan from State

Bank of India, BSEB branch, which was of Rs.2,58,399 only. So far as the

acquisition of three plots including building as per Schedule B of the application

under section 13 of the Act was concerned, appellant Girish Kumar stated that the

appellants were members of Hindu undivided family and they had ancestral
4

irrigated land which generated agricultural income which was not taxable and out

of agricultural income of the land and the retiral benefit of his father as also loans

taken from his friends and relatives those properties were acquired and some part

of the payment was made from the account maintained by the appellant Girish

Kumar in State Bank of India, Gandhi Maidan Branch. Likewise, so far as the

total deposit of Rs.27,41,555 in his bank account number 01190015057 was

concerned, it was stated that it had already been closed on 15.7.2004 and the total

transaction was more that the above amount and, thus, were not illegal. Likewise,

the appellant was also explaining his fixed deposits as per Schedule A to the

petition which was in the sum of Rs.90,000 by stating that those were the

investments made out of the agricultural income of the family of the appellants.

As regards the acquisition of motorcycle and the pistol and cartridges, it was

stated that the motorcycle was not the property of Girish Kumar or any of the

appellants rather the same belonged to one Akhilesh Kumar, who was sometimes

the tenant in the house of the appellant and the pistol and cartridges were

purchased out of the agricultural income. On the allegation of acquiring the

tractor of the value of rupees three lacs, the reply of the appellants was that the

tractor stood registered in the name of the appellant Sachchidanand Singh, brother

of the appellant Girish Kumar and the appellant Girish Kumar had contributed

only Rs. 95,000 and remaining amount was pooled from the agricultural income

of the joint family. It was stated that Sachchidanand Singh was employed as

Yakshma Sahayak at Hariharpur in the district of Sahebganj and he served from

20.2.1987 to 11.5.1992 on which date he was terminated and he had his own

source of income and some part of the money had also been contributed by

appellant Sachchidanand Singh in purchase of the tractor.

5. Appellant Girish Kumar stated that the State Government had

illegally bifurcated the retiral benefit which was received on demise of his father

in two halves; one part going to appellant Girish Kumar and the other to his

mother. In fact, the appellant pleaded, he had received the whole of the amount
5

which was paid as retiral benefits which were due to his demised father. It was

also stated that the agricultural income had not been taken into account and those

were the reasons that the State of Bihar had filed a completely untenable petition.

6. Appellant Saphalta Devi, who is the wife of appellant Girish

Kumar, filed her separate statement of defence and, stated that initially the plot

situated at Sheopuri, Patna pertaining to plot no. 163, Khata no. 734 was

purchased out of the savings of appellant Girish Kumar together with agricultural

income of the family and the family pension and agricultural income of the family

of appellant Girish Kumar in addition to taking loans from friends and relatives

and the loans which were borrowed from friends and relatives were repaid by

appellant Girish Kumar through cheques to be drawn at the account of appellant

Girish Kumar at Gandhi Maidan branch of SBI. It was stated by the appellant

Saphalta Devi that she did not maintain any separate bank account and her

income, i.e., gifts received from her parents, was deposited in the SBI account of

her husband. Likewise, the mother of Girish Kumar was also not having any

account except that in which she used to receive her pensionary benefits and, as

such, the whole agricultural income of the family was being deposited in the

account of appellant Girish Kumar.

7. So far as acquisition of the two immovable properties in

Kadamkuan is concerned, it was stated that before acquiring properties in Park

Road, Kadamkuan, appellant Saphalta Devi sold her plot of land situated in

Sheopuri, Patna which was earlier agreed to be sold to one Shri Krishna Singh

and others after having received a premium of Rupees three lacs. The subsequent

sale was for Rupees five lacs out of which the premium of Rupees three lacs

received from earlier three prospective purchasers was returned and the two plots

in Kadamkuan was purchased. The remaining amount in addition to Rupees three

lacs was pooled from the income of joint family generated through the irrigated

agricultural land and as such there was no illegality in acquisition of the

properties. The same stand was taken by Smt. Saphalta Devi also as regards the
6

acquisition of trailer and tractor for Rupees three lacs as was done by her

husband.

8. The two sons of Girish Kumar and Safalta Devi who are also

appellants had also been noticed under section 14 of the Act to appear and file

their show cause against confiscation of the properties. Both of them appeared

and filed their show cause taking the same stand as was taken by their parents and

uncle Sachchidanand Singh.

9. The learned Authorized Officer, thereafter, heard the parties and

went on to consider the allegations along with the evidence which was produced

before him and directed the confiscation of the properties detailed in Schedules A

and B of the petition.

10. It was contended that the motorcycle, the value of which was

Rs.30,000, did not stand in the name of any of the appellants rather it stood

registered in the name of one Akhilesh Kumar and, as such, the clubbing of that

particular property for being confiscated was not proper. Submission was also that

the amount of Rupees four lacs as price of Maruti Zen car also appears

exaggerated and thereby inflating the total value of the disproportionate assets

allegedly acquired by the appellants. Besides, the appellants had taken out a loan

from the State Bank of India for purchasing Maruti Zen car and that acquisition

may not be illegal. Likewise, it was contended that the initial acquisition of the

immovable properties at Sheopuri was made out of the funds generated from

agricultural income and that plot was admittedly sold by the appellant Saphalta

Devi to one Moina Begam for which an agreement to sale was scribed on

22.11.2003. The remaining amount for purchasing the two plots and the house at

Kadamkuan was pooled from the agricultural income of the joint family

properties besides personal income of the appellants and as such there was no

illegality in it. It was, lastly, contended by the learned counsel for the appellants

that it was malafide on behalf of the State of Bihar and its agencies to file a

petition under section 13 of the Act and not to proceed with the trial of the case in
7

which charge sheet, admittedly, was filed long back in the year 2006 as may

appear from the details of the case and investigation given by the State of Bihar in

its petition under section 13 of the Act. It was, as such, contended that the

impugned order was bad in law as also on facts and was fit to be set aside.

11. The learned Special Public Prosecutor submitted that except the

bald statements that the family was joint and it possessed substantial agricultural

land which yielded sufficient produce to generate those lacs of money for

purchasing the two plots at Kadamkuan or for creating a deposit of over rupees

twenty seven lacs in bank account, there was no evidence produced in support

thereof. Even appellant Sachchidanand Singh has not said as to what was received

by him as salaries, etc. for the period he was serving a particular organization

under the State of Bihar. It was contended that bald statements are never to be the

basis for considering the defence statements as it has always to be supported by

some evidence raising a prima facie presumption of existence of a particular fact.

It was contended, as such, that the order impugned is fit to be upheld.

12. This Court does not want to go into the legal aspects of the matter

as it has already explained the position on all aspects of confiscation proceedings

which could be taken up by the State Government through a petition filed under

section 13 of the Act in Shiv Shanker Verma Vrs. State of Bihar reported in

2011(3) PLJR 813. The procedures are elaborately laid down in Chapter 3 of the

Act and through relevant rule as may appear from Rules 11 and 14 of Rules. It

appears from the perusal of the impugned order and the lower court records that

there is no procedural illegality apparent on the face of the record as after the

filing of the application under section 13 of the Act the learned Authorized

Officer issued notices to all concerned persons who appeared holding the

properties said to be illegally acquired by commission of the offence under

section 2(d) of the Act by appellant Girish Kumar.

13. However, it was contended that it was mala fide on the part of the

State of Bihar to have filed a petition under Section 13 of the Act in respect of an
8

offence which was registered and investigated into quite ahead of the passing of

the Act without going through the trial procedure and keeping the matter pending

before the trial court as, admittedly, the investigating agency had filed charge

sheet as back as on 12.9.2006. In other words, what was contended was that no

confiscation proceeding could be maintained against a public servant, if the

offence appeared committed prior to coming into force of the Act. This issue

appears seriously raised by Shri Rana Pratap Singh, the learned senior counsel

appearing on behalf of the appellants and I desire to examine it. What appears

suggested by the learned senior counsel was that the application of the Act could

not be retrospective.

14. On examining the provisions of Chapter 3, especially that of

section 13 of the Act, one may come to a conclusion that the confiscation

proceedings could never be confined to the acquisition of any properties by any

public servant only after the Act had come into force. If one considers the

provisions of section 13 of the Act, one may find that it is too clear to confuse the

issue. The provision reads as under:-

―13. Confiscation of property.—(1) Where the State Government,
on the basis of prima-facie evidence, have reasons to believe that any
person, who has held or is holding public office and is or has been a public
servant has committed the offence, the State Government may, whether or
not the Special Court has taken cognizance of the offence, authorize the
Public Prosecutor for making an application to the authorized officer for
confiscation under this Act of the money and other property, which the
State Government believe the said person to have procured by means of
the offence.

(2) An application under sub-section (1)–

(a) shall be accompanied by one or more affidavits,
stating the grounds on which the belief, that the
said person has committed the offence, is founded
and the amount of money and estimated value of
other property believed to have been procured by
means of the offence; and
9

(b) shall also contain any information available as to
the location for the time being of any such money
and other property, and shall, if necessary, give
other particulars considered relevant to the context.‖

15. The words ―who has held or is holding public office and is or has

been a public servant‖ could leave no manner to doubt the scope, ambit and extent

as regards the application of section 13 of the Act and could not be confined to

any prospective date to the date on which the Special Act had come into force. If

a person against whom the application had been filed and against whom the State

Government had reasons to believe on the basis of the prima facie evidence that

he had committed the offence under section 2(d) of the Act and had thereby

acquired properties either in his own name or in the names of any other persons,

the date on which the Act had come into force, becomes irrelevant and

meaningless. The only thing to be considered by the court or the Authorized

Officer is as to whether the person against whom the application has been filed

alleging commission of the offence and thereby acquisition of properties by him

was indeed a public servant on the date of commission of the offence. Thus, if the

date of offence was prior to the date of promulgation of the Act or the date of

enforcing the provision of the Act, then it has always to be read as an enactment

which was enforcing its provisions retrospectively. These were never to be

pointed out because I have already extracted the relevant part of the provision of

section 13 of the Act, which itself is so clear as to leave any manner of doubt that

the provisions had to be applied to the date of acquisition of the properties and

after considering the status of the person on that particular date as that of the

public servant. This, I believe, takes care of the argument of Sri Singh, the learned

senior counsel in its entirety.

16. However, the grievance of the appellant that the State Government

and its agencies were acting malafide, to me, appears of no importance so as to be

taken note of when I am judging an order passed by the Authorized Officer under

section 15 of the Act. Whether the government is sleeping over the trial due to its
10

slackness or disinterestedness, so to say, in production of evidence could never be

the consideration while judging an order under section 15 of the Act on an

application filed under section 13 of the Act. A court, specially the appellate court

has to confine itself to the allegations which have been placed on record through

the application along with the supporting prima facie evidence so as to inferring

reasons to believe that a public servant, past or present, had acquired properties

disproportionate to the known sources of his income after commission of the

offence under section 2(d) of the Act which is an offence defined and made

punishable under section 13(2) of the Prevention of Corruption Act, 1988. The

other aspect which the appellate court has to look into are as to whether the

provisions of sections 14 and 15 of the Act have duly been complied with while

carrying out the proceeding of confiscation on an application under section 13 of

the Act. I have already noted that the learned lower court does not appear

committing any error on the procedural aspects of the matter as regards carrying

out the proceedings after having received the petition under section 13 of the Act.

17. It requires hardly to be pointed out that the State Government

could frame its petition if it has the prima facie evidence so as to giving it

sufficient reasons to believe about commission of the offence and the acquisition

of the properties by a public servant, past or present, which had been found

disproportionate to the known sources of his income. On an application being

received, notices for confiscation have to be served calling upon him to reply

within the stipulated period of thirty days or which may be extended to a

maximum of 45 days to the allegations and the contents of the evidence. The

public servant when replying to those allegations, is supposed also to file his

written statement of defence and while so doing as may appear from Rule 11 of

the relevant Rules which is known as Bihar Special Court Rules, 2010

(hereinafter referred to as the Rules), he may also enclose some documents or

evidence in support of his statement of defence. It could be plainly clear from

Rule 11(b) of the Rules that the delinquent public servant was to be given
11

opportunity of meeting out the allegations fully and completely so that the

principles of natural justice were not violated. The second intent which appears to

me was that the public servant had also the opportunity of rebutting prima facie

evidence by enclosing his documentary evidence or any other evidence which

could be lying in his possession or in possession of all other persons who are

alleged possessing the properties on behalf of such delinquent public servant. The

third purpose is contained in the rule itself. When the same rule 11 by virtue of

sub-rule(e) grants an opportunity to the public prosecutor to reply to the statement

in defence filed by the delinquent public servant. The purpose was, firstly, to

abdicate the full-dressed hearing on the petition as we may imagine in a trial-like-

situation and to allow the placing of all the relevant documents and evidence

along with explaining statements from both the sides so that the Authorized

Officer did not have any difficulty in reading probabilities arising out of the

assertions and counter assertions and thereby in recording his findings clearly.

This appears more the intent of the legislature when one considers that the very

Act has created two fora; one for the trial of the offence which had to be done as

per the provisions of Chapter 2 of the Act. The other forum is for carrying out the

adjudication of proceedings arising out of the petition filed under section 13 of the

Act which has to be summary and in which rules of evidence have never to be

applied. Nonetheless, it could not be said that the adjudication of the petition

under section 13 of the Act has to be done as per the whim of the Presiding

Officer. It can never be so else, it could be violative completely of the principles

of natural justice. It has to be as per the provisions of section 15 of the Act and

Rule 11 of the Rules on the balance of probabilities.

18. But then, the question is in case the delinquent public servant or

the persons who have been issued notice under section 14 of the Act do not

choose to place evidence by enclosing the same with their statements of defence,

then where from the court or the Authorized Officer could be reading those

evidence. The present appears a case of that class where the appellants were
12

making statements, placing explanation in their own ways on acquisition of

different properties, which were found in their possession as per description in

Schedules A and B of the petition. But, they did not enclose any document with

their written statements of defence which were filed before the court below. Even

their statements appear quite contrary to each other. Appellant Girish Kumar was

stating that the retiral benefits accruing on account of the demise of his father

were improperly partitioned in two halves, one to himself and other to his mother.

In fact, it accrued to him alone in its entirety. But his wife appellant Saphalta

Devi, while explaining immovable properties of Sheopuri and Kadamkuan, was

stating that the Stridhan properties of her mother-in-law were also coming handy

in acquisition of the properties. In addition to that, the appellants were speaking of

their irrigated agricultural land. They did not state as to what was the area of the

land which was in their possession and they did never furnish as to what was the

annual income by way of net savings due to the produce of those lands. All

acquisitions, may be of the pistol and cartridge, the tractor and trailer, the plots of

land and houses in Kadamkuan or even the Maruti Zen car, appears being

financed either fully or in part by the agricultural income of the joint family

without even stating in a consolidated manner as to what was the total income of

the family from agricultural lands from the year 1992 to 2004. The court would

have been happy had it received any reasonable explanation by way of furnishing

accounts of receipts from agricultural land, year-wise or otherwise, by the

appellants. Thus, what appears is that the whole statement of defence of the

appellants was based on bare statements which were too general and specific on

any part and without any support from any acceptable evidence or material. There

was no prima facie evidence produced by the appellants in support of their

statements of defence though the appellants appear not controverting that they had

the properties in their possession. This may appear from different paragraphs of

the statements made either by the appellant Girish Kumar or appellant Saphalta

Devi.

13

19. In my considered view, the learned Authorized Officer was

perfectly justified in holding that the properties were acquired by commission of

the offence under section 2(d) of the Act.

20. So far as acquisition of motorcycle is concerned, it was stated that

the vehicle was owned by one Akhilesh Kumar. It appears from the impugned

order that Akhilesh Kumar was also issued a notice under section 14 of the Act

but, he did not choose to appear. Again, there was no documentary evidence

produced before me showing the source of finance to purchase the motorcycle

least to say that it really belonged to Akhilesh Kumar. It may be true that Maruti

Zen car had been purchased by taking out a loan but that may not shut the matter

out of the court unless the delinquent public servant, i.e., Girish Kumar was

successfully pointing out to the learned Authorized Officer and this Court as to

how the loan was repaid. There was no statement as to from which account in

which he had kept his validly earned money, the loan amount was repaid. May be,

that acquisitions had been financed properly by taking out loans but in that case,

in my considered view, the repayment of loan has also to be equally from the

valid source of income and in all such cases, the delinquent public servant owes a

burden to justice to explain as to how he had discharged that burden. The

appellants have not done it in the present case.

21. The appeal appears de-meritorious and the same is, accordingly,

dismissed.

(Dharnidhar Jha, J.)

Patna High Court,
The 15th November, 2011,
NAFR/Anil/

Vyas Narain Singh vs State Of Bihar & Ors on 4 November, 2011

Patna High Court
Vyas Narain Singh vs State Of Bihar & Ors on 4 November, 2011
Author: Amaresh Kumar Lal
                   IN THE HIGH COURT OF JUDICATURE AT PATNA

                               Criminal Revision No.700 of 2002
            ==================================================

Vyas Narain Singh, son of Laxmi Narain Singh, resident of village-
Semaria, P.S.- Revelganj, District- Saran
…. …. Petitioner
Versus

1. The State of Bihar.

2. Shyam Karan Pandey, son of Late Naga Pandey, resident of
village-Bishunpur, P.S.- Jalalpur, District- Saran.

3. Rajendra Mishra, son of Munshi Mishra, resident of Police
Line, Chapra, District- Saran.

4. Ajay Kumar Pathak, son of Devendra Pathak, resident of
village-Bishunpur, P.S.- Jalalpur, District- Saran.

…. …. Opposite Parties.

==================================================
Appearance :

For the Petitioner : Mr. Ashok Kumar Singh, Advocate

For the Opposite Party
: Mr. Vishwanth Pd. Sinha, Sr. Advocate
: Mr. Sanjay Kumar Singh, Advocate
For the State : Mrs. Indu Bala Pandey, Addl. P.P.
==================================================
=========
CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL

ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL)

Amaresh Kumar Lal, J. It is submitted by the learned counsel for the

opposite party nos. 2 to 4 that opposite party no.2 Shyam

Karan Pandey died on 15.03.2006. The learned counsel for

the petitioner does not controvert this fact.

Let the name of opposite party no.2 be deleted.

The informant-petitioner has preferred this revision
Patna High Court CR. REV. No.700 of 2002 dt.04-11-2011 2

application against the judgment and order dated

4.07.2002 passed by the learned 5th Additional Sessions

Judge, Saran at Chapra in S.Tr.No.301/1989 by which all

the accused opposite party nos. 2 to 4 have been acquitted.

The prosecution case, in brief, is that on 12.11.1985

at about 8.00 P.M. Prem Shankar aged about 15 years, son

of the informant was exploding crackers on the occasion of

the Diwali at his Darwaja and the informant was sitting

there. The accused Shyam Karan Pandey (now dead) made

some satirical remarks against Prem Shankar which was

protested by Prem Shankar. There was altercation. When

the informant went there to pacify the matter, the accused

Rajendra Mishra, Sharhu of Shyam Karan Pandey caught

his left hand and accused Ajay Kumar Pathak, son-in-law

of Shayam Karan Pandey caught hold of the informant by

his wait and accused Shayam Karan Pandey took out a

Khanjar from his waist and assaulted him on his forehead.

The accused Shayam Karan Pandey again assaulted the

informant on his shoulder and the informant fell down and

cried for rescue. Thereafter, Madan Singh, Shankar Rai,

Ramayan Rai, Shyam Prasad and Ramanand rushed there.

Shayam Karan also assaulted Prem Shankar and Ravi
Patna High Court CR. REV. No.700 of 2002 dt.04-11-2011 3

Shanker, the sons of the informant with Khanjar causing

them injuries. In the occurrence, the wrist watch was taken

away. On the basis of fardbeyan of the informant,

Rivilganj P.S. Case No.123/1985 was instituted against the

accused. After investigation, charge-sheet was submitted.

Cognizance was taken. The case was committed to the

court of sessions. After the trial, all the accused were

acquitted by the impugned judgment.

Heard the learned counsel for the petitioner, the

learned counsel for the State and the learned counsel for

the accused opposite parties.

It appears from the impugned judgment that the

prosecution has examined altogether 7 witnesses, out of

them, P.W.1 Ravi Shankar is the son of the informant,

P.W.2 Rama Nand Singh is the cousin of the informant,

P.W.3 Prem Shankar is the son of the informant, P.W.4

Raj Kumar Devi is the wife of the informant and P.W.5

Vyash Narayan Singh is the informant himself, P.W.6 Dr.

Roop Narayan Lal Dev is the doctor and P.W.7 Srikant

Singh is the S.I. No evidence has been adduced on behalf

of the accused. According to the defence, it is the

prosecution party, who has raided the house of the accused
Patna High Court CR. REV. No.700 of 2002 dt.04-11-2011 4

Shyam Karan Pandey and in order to grab it by evicting

the accused and assaulted him, who became injured and in

order to save the skin the prosecution party has instituted

the case.

It further appears that there are 12 witnesses in the

charge-sheet and the other witnesses are co-villagers of the

informant, who have not been examined. The learned trial

court has considered the evidence adduced on behalf of the

prosecution and has found that their evidence is not

convincing and not trustworthy. Hence, the evidence has

not been relied upon. The learned trial court has held that

the prosecution has failed to establish the charge against

the accused and acquitted them.

Considering the facts and circumstances stated

above, I do not find any ground to interfere with the

impugned judgment. This petition is dismissed.

( Amaresh Kumar Lal, J.)
Patna High Court, Patna
Dated the 4th November, 2011
NAFR/V.K. Pandey

Dr.Brahma Deo Prasad vs The State Of Bihar & Ors on 19 October, 2011

Patna High Court
Dr.Brahma Deo Prasad vs The State Of Bihar & Ors on 19 October, 2011
Author: Dharnidhar Jha
                                                                              1




         IN THE HIGH COURT OF JUDICATURE AT PATNA
                          ----

Govt. Appeal (SJ) No.7 of 2007
Against judgment of conviction and order of sentence dated
24.1.2007 passed by Additional Sessions Judge XI, Patna, in
Sessions Trial No. 1251 of 1998.

=====================================================
The State Of Bihar
… …. Appellant
Versus

1. Ranjit Sao, son of Hariom Sao

2. Jhulan Yadav, son of Chhavinath Yadav

3. Lalan Yadav, son of Brahm Deo Yadav

4. Sukesh Yadav, son of late Jehali Yadav
All residents of Yogipur Mohalla, P.S. Patrakar Nagar, Kankarbagh,
District Patna
. … …. Respondents
with
Criminal Revision No. 144 of 2007
Dr.Brahma Deo Prasad, son of late Sajiwan Prasad, resident of Yogipur
Mohalla, P.S. Patrakar Nagar( Kankarbagh), District Patna, at present,
Advocate, Patna High Court, Patna.

…. …. Petitioner
Versus

1. The State Of Bihar

2. Ranjit Sao, son of Hariom Sao

3. Lalan Yadav, son of Brahma Deo Yadav

4. Jhulan Yadav, son of Chhavinath Yadav

5. Sukesh Yadav, son of late Jehali Yadav
All residents of Yogipur Mohalla, P.S. Patrakar Nagar( Kankarbagh),
District Patna
…. …. Opposite Parties
with
Criminal Appeal (SJ) No. 286 of 2007
Against the judgment of conviction and order of sentence dated
24.1.2007 passed by Additional Sessions Judge XI, Patna, in Sessions
Trial No. 1251 of 1998.

=====================================================

1. Jhulan Yadava, son of Chabbi Nath Prasad Yadav

2. Lallan Yadava son of Brahmdeo Yadav

3. Sukesh Yadava son of Jehadi Yadav
All residents of lMohalla Jogipur, P.S. Patrakar Nagar, District Patna
… …. Appellants
Versus
The State Of Bihar
…. …. Respondent
with
Criminal Appeal (SJ) No. 318 of 2007
Ranjit Kumar Sao son of Shri Hari Om Sao, resident of Mohalla Yogipur,
Police Station Patakar Nagar( Kankarbagh) Town and District Patna
…. …. Appellant
Versus
2

The State Of Bihar
…. …. Respondents
=====================================================
Appearance :

(In G. APP. (SJ) No. 7 of 2007)
For the Appellant : Shri Dilip Kumar Sinha, A.P.P..
For the Respondent/s Shri Shakeel Ahmad Khan, Sr. Adv.

Shri Sajid Salim Khan

(In CR. REV. No. 144 of 2007)
For the Petitioner : Dr. Brahmdeo Prasad( in person)
Shri Rakesh Kumar
For the Opp. Parties : Shri Shakeel Ahmad Khan, Sr. Adv.

(In CR. APP (SJ) No. 286 of 2007)
For the Appellants : Shri Shakeel Ahmad Khan, Sr. Adv.

For the Respondent : Shri S.N.Prasad, A.P.P.

(In CR. APP (SJ) No. 318 of 2007)
For the Appellant : Shri Shakeell Ahmad Khan, Sr.Adv.

For the Respondent : Shri S.N.Prasad, A.P.P.

=====================================================
CORAM: HONOURABLESHRI. JUSTICE DHARNIDHAR JHA

(Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA)

– —

The two Criminal Appeals, i.e., Cr. Appeal Nos. 286 of 2007 and 318 of

2007 preferred by the convicts of Sessions Trial No. 1251 of 1`998 as also

Criminal Revision petition No. 144 of 2007 filed by the informant P.W.1

and the Govt. Appeal No. 7 of 2007 arise out of judgment dated 24.1.2007

passed by the learned Additional Sessions Judge XI, Patna, in the above

noted Sessions Trial. They were heard together and are being disposed of

by the present common judgment.

2. Appellant Ranjit Kumar Sao was the only accused sent up by the

police on the basis of Ext.1, the fardbeyan of P.W.1 Brahmadeo Prasad.

The three appellants of Cr. Appeal No. 286 of 2007 were not sent up for

trial by the police. The informant, P.W.1, filed a complaint petition (Ext.2)

and after an inquiry under Section 202 Cr. P.C. the three appellants,
3

namely, Jhulan Yadav, Lalan Yadav and Sukesh Yadav were summoned

by the Chief Judicial Magistrate, Patna, and their case was also committed

to the court of Sessions as a result of which they were tried together

which, lastly, ended in the impugned judgment.

3. The fact of the case is that the informant, who was the Deputy

General Manager of the Bihar State Co-operative Bank, was coming on

18.9.1996 at about 5.30 P.M. by his scooter from his office to his house

situated at Village Yogipur. When he reached near the house of one

Hariom Sao on the road he saw that appellant Ranjit Kumar Sao was

standing there with other five-six friends of his. P.W. 1 identified the four

appellants and could not identify the other two or three. All the accused

came in front of the scooter of P.W. 1 who was forced to stop the two

wheeler. As soon as the two wheeler was stopped, it is alleged, appellant

Ranjit Kumar Sao dealt a fasuli blow on the informant on his face as a

result of which the informant fell down. Appellant Ranjit Kumar Sao

along with other appellants and their unknown companions, thereafter,

dealt incessant fasuli blows on different parts of the body of P.W.1. The

informant attempted to fend himself by raising his two hands as a result of

which his hands were also injured and he kept rolling on the ground while

the appellants and their companions continued giving blows with fasuli.

4. It is stated that the informant recollected himself, got up and went

towards his house to save himself, but fell down in the verandah of his

house completely soaked in blood.

5. The police, on receipt of information came there and picked up the

informant and admitted him to the emergency ward of Patna Medical

College Hospital. The informant stated that he was not fully conscious,

rather was half conscious on 18.9.1996, as such, could not give his
4

statement on that day and after having regained his consciousness fully, he

gave his fardbeyan ( Exrt.1).

6. It was stated by P.W. 1 that in the year 1993 the three appellants,

namely, Ranajit Kumar Sao, Lalan Yadav and Sukesh Yadav teased a girl

for which the informant had chastised them and that had resulted in the

informant being assaulted by the above named appellants as a result of

which P.W. 1 had lodged Kaakarbagh P.S.Case No. 414 of 1993. It was

stated that the appellants were pressurizing him to compromise the case

for which P.W.1 was not ready as a result of which the occurrence had

taken place. The informant stated that while he was driving home by the

two wheeler, Harshit Narain Singh ( not examined) was the pillion rider

and he was present at the time of occurrence.

7. On the basis of Ext.1, the F.I.R. of the case was drawn up and the

investigation was undertaken by D.W. 2 Inspector Rambriksha Rajak who

on that date was the Officer of Patrakarnagar Police Station. D.W. 2 stated

that he received a wireless message about P.W. 1 being assaulted by some

persons and he moved to the place of occurrence with his mobile

patrolling party and found P.W.1 in an injured condition and when he

questioned him about the name of his assailants, he gave the name of

appellant Ranjit Kumar Sao and further stated that he should be shifted to

the hospital for treatment. D.W.2 stated that he put the injured on his

mobile vehicle and brought him to P.M.C.H. for treatment. He took up the

investigation on 18.9.1996 itself but recorded the fardeyan ( Ext. 1) of

P.W.1 on 19.9.1996 and thereafter recorded the statement of P.W. 3,

Nirmala Devi, the wife of P.W. 1 on 19.9.1996 who did not state that she

had seen the occurrence nor did she name any of the accused persons. He

questioned many persons, namely, Mahendra Kumar, Punia Devi, Padam
5

Singh and Harshit Naraian Singh (all not examined). The case was

supervised by Dy.S.P. D.W. 1 and finding materials sufficient only against

appellant Ranjit Kumar Sao, sent him up for trial.

8. In cross examination, D.W.2 stated that while he was shifting

P.W.1 to P.M.C.H. he wanted to know from him the details of the

occurrence, but P.W. 1 stated that he was not in a fit state of mind and

health to make statement and it will be made later. D.W.2 remained in

P.M.C.H. up to 10 P.M. and till then no one was coming forward to give

the details of the occurrence as to how it had occurred. D.W.2 stated that

whenever he questioned P.W.1, he always stated that one Ranjait Kumar

Sao and some others of his neighbourhood had assaulted him with fasuli

and, accordingly, he recorded the statement of P.W.1 in paragraph 2 of the

case diary, but did not record the fardbeyan of P.W.1 nor did he direct

recording of station diary entry as regards the statement of P.W.1

Brahmadeo Prasad about the name of only one accused, i.e., appellant

Ranjit Kumar Sao. D.W.2 has further stated in paragraph 2 of his evidence

that he remained in P.M.C.H. up to 10 P.M as indicated by him, but

nobody came to give any statement and that he arrested appellant Ranjit

Kumar Sao from his house in the same night. He came to P.M.C.H. early

in the morning on 19.9.1996 and recorded the fardbeyan of P.W. 1.

9. On being admitted into the emergency ward of P.M.C.H., P.W.1

was examined by P.W.2 Dr. Vimal Mukesh, who was the Surgeon on duty

in the surgical emergency Ward of P.M.C.H. on 18.9.1996 from 2 P.M. to

10 P.M. He found the following injuries on the person of Bahmadeo

Prasad, P.W. 1:

1. Clean incised wound over the posterior aspect of left shoulder
muscle deep 8″ vertical and 6″ horizontal, bleeding present.

2. Clean incised wound over the right chin 2″ long extending inside the
6

oral cavity causing disfigurement of face.

3. Incised wound over the upper lip through and through on the right
side 1 ½” long causing disfigurement.

4. Clean incised wound parallel to injury no.2″ long, extending into the
left chin causing disfigurement.

5. Clean incised wound on the left side of the neck 10″ long bone deep.

1 blood vessel severed.-

6. Clean incised wound parallel to injury no.5 10″ long X skin deep.

7. Clean incised wound over the right side of chest below the nipple 5″

long muscle deep bleeding profusely.

8. Clean incised wound right upper chest 5″ long, muscle deep.

9. Clean incised wounds on right hand

(a) incised wound on the base of little finger

(b) incised wound on right thumb 1″ long

(c) right palm upper part 3″ long

10. Left hand incised wounds

(a) left wrist posterior aspect 6″ long extending into the palm.

(b) Tips of forefingers except thumb.

(c) Clean incised wound left palm upper part 1″ long

11. Clear incised wound on the forehead four in number each 1″ long,
bone deep

12. Clean incised wound below right eye 3″ long muscle deep

13. Clean incised wound over the right ala of nose 1″ long through and
through causing disfigurement.

In the opinion of P.W.2, injury nos. 2,3,4 and 13 ere grievous in nature on

account of causing disfigurement of face of P.W.1. Injury nos. 5 and 6

were endangering life of P.W.1, as may appear from the very descriptions

of those injuries and injury nos. 1 to 5 and 5 to 10 were simple in nature.

However, all the injuries were caused by sharp cutting weapon, may be by

a fasuli. Thus, there could be no doubt that injuries which were caused to

P.W.1 were really dangerous to life individually and cumulatively as well.

10. In support of its case, the prosecution examined four witnesses

which included the informant (P.W.1), his wife (P.W.3), the

Doctor,(P.W.2) who examined P.W. 1, whose evidence I have just

discussed and, lastly, Shri N.K.Agrawal, who was the Judicial Magistrate

on the date of occurrence in civil courts, Patna, and was undisputedly

residing as a tenant on the first floor of the house of P. W.1. I have

already noted the evidence of the Investigating Officer of the case.
7

Besides, the Deputy Superintendent of Police, who was the Supervising

Officer, i.e., D.W. 1, namely, Smt. Sangita Kumari was also examined.

11. It was contended by Shri Shakeel Ahmad Khan, learned counsel

appearing on behalf of the appellants by referring to the evidence of

witnesses that the first statement which was given to the police by P.W.1

was not containing any name except that of appellant Ranjit Kumar Sao.

It is not that P.W.1 was not in a position to make statement as the

evidence of the Investigating Officer clearly indicates that he talked to

him on way to P.M.C.H. and repeatedly asked him to divulge the details

of occurrence but he was not doing it. The evidence of the Doctor does not

indicate that he had lost his consciousness and was not in a position to

make any statement and regained his consciousness to speak and then only

it was possible to record his fardbeyan by the police. It was contended that

in fact, the informant was consulting his Advocate as he appears admitting

in context to filing of the complaint petition for roping in the accused

persons. It was contended that as a matter of fact even appellant Ranjit

Kumar Sao was not the assailant of the informant and he had falsely been

roped in the case. Contention also was that Harshit Narain Sigh who was

allegedly the pillion rider on the same scooter by which P.W.1 was

coming to his house, was not examined nor Padam Narain Singh who was

also one of the tenants with P.W. 4 N.K.Agrawal, came to support the

prosecution case. None of the persons of his neighbourhood who are said

to have seen the occurrence had come forward to support any part of the

occurrence. P.W. 3 Nirmala Devi, wife of P.W.1 could never be an eye

witness as could be the case with P.W. 4 which was further compounded

by not naming the three appellants other than appellant Ranjit Kumar Sao

by the informant at the earliest and on repeated questioning.
8

12. Shri Brahmadeo Prasad, who was the informant of the case

and who after having retired from service appears being enrolled as an

Advocate, is practicing as an Advocate, appears in support of the Criminal

Revision petition filed by him and made submissions himself. It was

contended by Shri Prasad that it was not necessary to mention the names

of the prosecution witnesses in the F.I.R. for making them competent

witnesses and non-mentioning of the name of a witness could not make

his evidence unworthy of credence. In support of his contention Shri

Prasad referred to a decision reported in 2003(3) P.C.C.R. 142(SC) Raj

Kishore Jha Vs. State of Bihar& Ors. Shri Prasad was contending that

the police was dishonest and did not honestly investigate the case and that

appears admitted by D.W.2 in paragraph 9 when he stated that he was

directed by the Supervising Officer to submit charge sheet in respect of

solitary appellant Ranjait Kumar Sao and while he was recording the

fardbeyan, he did not make any inquiry from the informant as to why he

was naming four persons in spite of having named only one accused

Ranjit Kumar Sao in the first instance( D.W.2 paragraph 19). It was

further contended that the Investigating officer did not approach Shri N.K.

Agrawal, Judicial Magistrate, for recording his statement nor did he seize

his blood stained clothes in spite of there being a direction from D.W.1,

the supervising authority. It was contended that the witnesses were

competent and they fully supported the prosecution story and, as such, the

charges against all the accused persons stood established and the manner

of occurrence together with the injuries which were found by P.W.2

indicated that the sentence passed upon the appellants was too lenient to

be countenanced.

13. The learned Additional Public Prosecutor who appeared in the
9

two criminal appeals, namely, Shri S.N.Prasad submitted that initially not

naming the three appellants except appellant Ranjit Kumar Sao might be

on account of serious condition of the informant who was badly injured.

Shri Prasad further contended that the investigation was defective and

improper and for that the prosecution has never to suffer. Submission was

that the conviction of the appellants was proper.

14. Shri Dilip Kumar Sinha, learned Additional Prosecutor

appearing on behalf of the State in Govt. Appeal No. 7 of 2007(S.J.) urged

that the sentence was inadequate in terms of the manner of occurrence and

the injuries, as such, it required that at least life imprisonment could be the

proper sentence.

15. While making submission Shri Shakeel Ahmad Khan, learned

Senior counsel for the appellants was addressing on non-proof of the

motive which was the act of teasing by appellants Ranjit Kumar Sao,

Lalan Yadav and Sukesh Yadav, the three accused for which Kankarbagh

P.S.Case No.414 of 1993 was registered. It appears admitted by the

informant P.W.1 in his evidence, as may appear from paragraph 10, that

the girl who had been teased had never complained to him nor had she

been examined in the case. As such, the motive which was alleged against

the appellants to hold them guilty appears not correct. The three

appellants, namely, Ranjit Kumar Sao, Lalan Yadav and Sukesh Yadav

were of course convicted on account of non-proof of the initial story of the

prosecution regarding teasing of the girl, but the learned Magistrate was of

course convicting the appellants and was releasing them under Section

360 Cr. P.C. as may appear from Ext. A, the copy of judgment delivered

in that case. It was true that the judgment was passed subsequently but it

has been admitted by P.W. 1 himself that after he was being pressurized
10

for compounding the offence for which he had filed the above noted

Kankarbagh P.S.Case No.414 of 1993, he did not lodge a complaint to

anybody about being pressurized to withdraw the prosecution. This fact

has been admitted by P.W.1 in paragraph 10. Thus, what is found from the

evidence of P.W.1 in paragraph 10 is that the fact that the appellants could

be pressurizing him for withdrawing Kankarbagh P.S. Case No. 414 of

1993 appears not satisfactorily established and, as such, the motive for

commission of the offence appears not established.

16. In a case of direct evidence it is not necessary for the prosecution

to allege a motive. However, if it is alleged that any particular motive

could have impelled the accused persons to commit the offence, then the

prosecution was required to establish motive for commission of the

offence also as any other fact. If I go by that particular principle, then it

could be said that there is a major defect in the prosecution case. But, I

find that there were as many as thirteen injuries recorded by P.W. 2 on the

person of P.W.1 out of which at least two injuries were found endangering

life and four others, like injuries no. 2,3, 4 and 14, were opined to be

grievous in nature. At lest P.W. 1 had come forward to support the case,

as such, it does not appear prudent in the present facts of the case, that

ignoring the direct evidence the judgment be set aside merely on non-

proof of the motive.

17. P.W. 1 has stated that while he was coming from his office and

when he reached the house of one Hariom Sao, the accused persons who

were standing there came in front of the scooter, compelling the informant

to stop it. Appellant Ranjit Kumar Sao dealt a fasuli blow on the face of the

informant as a result of which he fell down and thereafter all the accused

persons dealt incessant blows with fasuli upon P.W.1. P.W.1 stated that he
11

raised his hands in his defence and his fingers were also cut. These injuries

were found by P.W 2, the Doctor, as noted at Serial Nos. 9 and 10 of the

injury report. P.W.2 was finding the palm and thumb of either of the hands

of P.W. 1 bearing incised wounds. Even in absence of any evidence that the

informant was raising his hands to fend himself, it could ordinarily be

presumed that any one who was so badly brutalised by dealing incessant

blows with such dangerous weapon like fasuli – which is a sharp cutting

weapon used by toddy-tapers in cutting the palm trees for dripping toddy-

one could be making all efforts to ward off of those blows which could have

been inflicted upon him. This is the reason that the injuries were spread

over right from the face of the informant up to his legs. There could not be

any doubt as may appear from the evidence of P.W.1 alone that he was

badly brutalized and was clearly intended to be killed by his assailants.

There could not be any escape from that conclusion which appears from the

evidence of P.W. 1.

18. However, as regards the evidence of P.Ws. 3 and 4 Smt.

Nirmala Devi and Shri N.K. Agrawal, the Court finds that it is really not

acceptable that Shri N.K. Agrawal, Judicial Magistrate, who was a tenant

residing on the upper floor of the house of P.W. 1 could have seen the

occurrence. Both P.Ws. 1 and 3 have stated that after hearing the cries of

the couple, i.e., P.Ws. 1 and 3, Shri N.K.Agrawal and Padam Singh who

were the tenants living up-stairs rushed down to find P.W.1 lying injured

in the Verandah. This fact was stated by P.Ws 1 and 3 themselves. P.W. 3

Smt. Nirmala Devi was stating in paragraph 1 of her evidence that after

her husband being assaulted and injured and came to his house fully

soaked in blood, she gave a call to Patrakarngar Police Station but did not

name any one in that information because she was wailing and weeping
12

which attracted N.K.Agrwwal (P.W. 4) and another tenant Padam Singh

(not examined). The above fact has again been stated by P.W.3 Smt.

Nirmala Devi in paragraphs 8 and 12 of her evidence, thus, making it

quite clear that Shri N.K.Agrwal could have come down stairs at the

verandah of the house of P.W.1 and P.W. 3 after having heard the cries of

P.W. 3 who was crying after her husband had reached her house. Shri

N.K.Agrawal did not say that he himself had seen the occurrence. He has

also stated as may appear from the very first paragraph of his evidence

that he heard the sound of weeping and wailing coming from the ground

floor and when he came out, he found that P.W. 1 Brahmadeo Prasad was

badly injured and he was bleeding from the injuries and when he made

inquiries P.W.1 stated the names of the accused persons. But, that

evidence of P.W. 4 that P.W. 1 had made statement before him also

appears not truthful as it was admitted by P.W. 4 that the police could not

come to record his evidence and further that he waited for the police to

come to him for recording his evidence and he never felt going to the

police himself for giving his statement informing it to record his

statement.. This statement appears in the evidence of P.W.4 in Paragraphs

7 and 12. D.W.2 Inspector Rambriksha Rajak, who investigated the case

stated in paragraph 7 of his evidence that he never recorded the statement

of Shri N.K.Agrawal, Judicial Magistrate. In the light of the admitted fact

that P.W.4 N.K.Agrawal had never given statement before the police, his

evidence appears of no use and in fact is inadmissible. As such, his claim

that he was told by P.Ws. 1 and 3 the names of the assailants appears not a

material fact.

19. As regards the evidence of P.W. 3 Smt. Nirmala Prasad, she

has claimed to be the eye witness to the occurrence by stating that while
13

she was taking a stall in her campus near her grill gate, she saw her

husband being assaulted and injured. However, the criticism on her

evidence is that she was not named in the F.I.R. and that was indicative of

the fact that she had not witnessed the occurrence. The argument on behalf

of the informant and the State was that merely not being named in the

F.I.R. may not be sufficient in itself to reject the evidence of particular

witness. I am also of the view that a witness may not be named in the

F.I.R. and there could be many reasons for the name of such a witness not

being mentioned in the F.I.R. as an eye witness, but that may not be

sufficient to exclude the evidence of such witness who is unnamed in the

F.I.R. from being considered. In my considered view, the merit of the

evidence of a witness has mainly to be judged independently of the fact as

to whether a witness was named in the F.I.R. or not named in it. The Court

must consider the claim of the witness regarding the reason on account of

which he was claiming himself to be a witness to the occurrence which

may be the reason showing his presence on or about the place of

occurrence so as to seeing the occurrence. The evidence of a witness may

also be considered on such factor as to whether he was making a statement

which was diametrically opposed to the proved facts or inconsistent with

the probabilities which could be appearing from the evidence of the

witnesses which has been accepted by the court.

20. Coming to the evidence of P.W.3, she is definitely not named in

the F.I.R. in spite of her claim that she was seeing the occurrence from her

grill gate. It is not that the F.I.R. was promptly lodged. It was lodged after

24 hours of the occurrence. The evidence of P.W. 3 Smt. Nirmala Prasad

in paragraph 3 indicates that she had also accompanied her husband to the

P.M.C.H. where her husband was taken for the treatment of his injuries by
14

the police by its Jeep. P.W. 3 has stated that if the Police had not come to

take her husband to hospital, he could have died then and there but it came

to save her husband and further that she along with Agrawal Saheb (P.W.

4) followed the police Jeep by her own vehicle. This evidence appears

acceptable inasmuch as it indicates the ordinary natural conduct of a wife

who could have done something finding her husband so badly injured

from assault given by some persons. No wife could have stayed away

from her husband in such a situation. A wife is always supposed to do

everything possible including going to the hospital to attend to her injured

husband or taking all cares of him during the period of his recuperation.

Thus, the evidence of Smt. Nirmala Prasad that she had accompanied her

husband has always to be accepted. Then, the question is the fardbeyan

was recorded after 24 hours. It is the consistent evidence both of P.W.1

and D.W.2, Inspector Rambriksha Rajak that the informant had not

completely lost his consciousness and was responding to queries and

answering to them also. P.W.1 stated that as soon as D.W. 2 reached his

house he made query from him regarding identification of his assailants

and he pointed out to him that it was appellant Ranjit Kumar Sao and

others who had assaulted him. D.W. 2 further stated in his evidence that

while he was carrying P.W.1 to P.M.C.H., he was again enquiring about

the details of the occurrence including the names and other details of the

accused persons and he was not getting any details. He remained very

much in the hospital up to 10 P.M. and no one came forward to give any

details as regards the assailants of P.W.1. Smt. Nirmala Prasad also

remained throughout with her husband. There is no evidence either of

her’s or of P.W. 1 or any other person that she ever parted with her

husband ( P.W.1), and the Court also has to accept the position that P.W. 3
15

had remained with her husband, P.W. 1, at least for some days in the

hospital till his condition had stabilized. The informant was talking and he

must have talked to his wife P.W. 3 and there must have been some

exchange of the details of the occurrence as also the identification of

persons who had participated in commission of the offence and it maaya

safely be supposed that P.W.1 must have divulged the names of his

assailants and other details of the occurrence to P.W.3, his wife. This

could be deduced from other circumstances also. P.W. 2, the Doctor, who

examined P.W. 1 never stated in his lengthy evidence that he had found

P.W.1 unconscious or that he was administered any medicine or

prescribed the line of treatment which could have made him unfit for

making any statement or talking to his close relatives. This further

supports the view that P.W.1 could have been in a position of giving some

semblance of the occurrence at least to his wife P.W. 3 and if P.W. 3 had

pointed out to him that she had seen the occurrence then there was no

reason for the informant P.W. 1 not to cite his wife as one of the eye

witnesses to the occurrence. There is no mention of her name in the F.I.R.

21. Besides the above, what appears from the description of the

Place of occurrence as given by P.W.1 in paragraphs 18 and 24 of his

evidence is that there could not be a clear view of the place of occurrence

from the gate of the house of P.W. 1. It appears that the occurrence was

taking place quite away from the gate of the informant and it was situated

in such a position that no one could have seen the place of occurrence

clearly to find as to what was happening on the road. This is the reason

that P.W.3 stated in paragraph 11 of her evidence that she was peeping

through the grill gate in expectation of arrival of her husband when she

saw the occurrence. This also makes it doubtful that P.W. 3 could have
16

seen the occurrence. She further stated in paragraph 1 that she gave a

telephonic call to the Police about the occurrence after her husband had

come bleeding at the verandah of his house but she was not naming any

one. It is acceptable to the Court as the state of shock and grief which cold

have overtaken P.W.3 could not have left her in such a state of her mind

that she could be narrating the whole details to the police. However, she

was keeping silent for 24 hours and even thereafter as appears established

from the evidence of D.W.2 who stated that while making statement

before him, P.W.3 was not stating that she was an eye witness to the

occurrence. This was the reason that the defene also drew her attention in

cross-examination that she had not stated to the police that she had seen

the occurrence, as may appear from paragraph 16 of P.W. 3 and paragraph

1 of D.W.2. On these reasons, I find that it is not safe to place reliance

upon the evidence of P.W.3 as she does not appear to me a witness to the

occurrence.

22. Thus, what I find from the discussion of the evidence on record is

that neither P.W. 3 nor P.W. 4 was the eye witness to the occurrence and

as such, the non-appearance of their names in the fardbeyan appears

significant. It may not, as such, be prudent to act upon this evidence.

23. This brings me to consider as to what was the initial version of the

occurrence and who were the persons named as his assailants by injured

P.W.1. It is not denied that P.W.1 was naming only appellant Ranjit Kumar

Sao whereas in his statement he appears adding that there were others

persons also. It was admitted by P.W.1 that he was not fit to make the

statement and, as such, he was not making statement to D.W.2 when he

arrived in hospital and finally after 24 hours of the incident, he could give

his fardbveyan. The evidence of D.W.2 that as soon as he reached the house
17

of P.W.1, he inquired about the incident when P.W.1 stated to him that

appellant Ranjit Kumar Sao and others had assaulted him and that he was

seriously injured and, as such, D.W.2 should rush him to the hospital is not

denied. The contention of the informant who appeared in person was that

the evidence of D.W.2 in paragraphs 5 and 19 that he did not record the

fardbeyan or drew up his statement separately after getting answer to his

question does not appear acceptable as he was a Police Officer and he was

getting the information about the commission of a cognizable offence by

some known or unknown persons. It is true that D.W. 2 did not draw up the

F.I.R. but it is also not disputed that he made entries of the above fact in

paragraph 2 of the case diary and he was very candid in pointing out that he

proceeded to investigate the case in anticipation of a formal F.I.R. being

given to him. It was not unusual that D.W. 2 could have done it. He could

have proceeded to investigate the case so as to arresting the accused or

recovering the weapon of offence in absence of the F.I.R. also as may be

permissible under Sections 157 of the Cr.P.C. as was held by the Privy

Council in Emperor Vs. Khwaja Nazir Ahmad reported in AIR 1945 P.

C.18 that the law permits such investigation by the police even in absence

of the F.I.R. The wife of the informant who was giving a telephonic

information to the Police which has been admitted by her in paragraph 1

itself. She was also not giving the information to the police naming any of

the appellants. It might be a circumstance that P.W. 3 could not be in a

perfect state of mind to give names of the appellants or might be that the

informant had not stated to her about the names of his assailants but the

evidence of P.W.2 may not be brushed aside as it is not seriously disputed

by P.W.1 that he was initially giving out the name only of appellant Ranjit

Kumar Sao as one of his assailants besides not naming others. This
18

evidence creates a doubt regarding the complicity of appellants other than

appellant Ranjit Kumar Sao in commission of the offence. It is true that

thirteen injuries which were inflicted upon P.W. 1 could not be inflicted by

a solitary hand of appellant Ranjit Kumar Sao and more persons must have

participated in it, but there is a doubt regarding participation of the three

appellants on account of their names not coming up promptly and at the

earliest. As such, the Court feels that the appellants other than Ranjit Sao

deserve to be acquitted as there is a doubt about their participation in

commission of the offence.

24. Accordingly, Cr. Appeal No. 286 of 2007 is hereby allowed by

setting aside judgment of conviction and order of sentence passed upon

appellants Jhulan Yadav, Lalan Yadav and Sukesh Yadav and they are

acquitted of the charge. These appellants are on bail. They are discharged

from the liabilities of their bonds.

25. So far as appellant Ranjit Kumar Sao is concerned, his participation

is clearly established by the evidence of P.W.1, who was naming him as one

of his assailants from the very beginning. As such, his participation in the

commission of offence by giving fasuli blows to the informant on his face

could not be doubted. But, the difficulty is that the injuries which were

found endangering life of the informant have not been assigned to appellant

Ranjit Kumar Sao who was specifically alleged to have dealt the first blow

on the face of P.W. 1. That disfigurement was not dangerous to life nor was

endangering the life of P.W. 1 and, as such, the sentence of rigorous

imprisonment for seven years was inflicted upon him. In my view, in

absence of any direct and specific evidence establishing appellant Ranjit

Sao as the person who had caused any injury to P.W. 1 which could bring

his act within the purview of an attempt to commit murder, the sentence
19

passed upon him cannot be said to be deficient. Besides, he was assessed by

the learned trial court as 27 years of age on 20.2.2004 which indicated that

appellant Ranjit Kumar Sao was an adolescent.

26. In view of the above, Cr. Revision No. 144 of 2007 and Govt.

Appeal No. 7 of 2007 have to fail and, accordingly, they are dismissed. The

appeal of appellant Ranjit Kumar Sao, i.e., Cr. Appeal No. 318 of 2007 is

dismissed.

( Dharnidhar lJha, J.)

Patna High Court
The 19th October, 2011
Kanth/N.A.F.R.

Branch Manager, National … vs Ram Kuamri Devi & Anr on 15 October, 2011

Patna High Court
Branch Manager, National … vs Ram Kuamri Devi & Anr on 15 October, 2011
Author: Rakesh Kumar
                     IN THE HIGH COURT OF JUDICATURE AT PATNA

                                Miscellaneous Appeal No.103 of 2010
                                               -------------

Against the Judgment and Award dated 8th December,2009 and
16.12.2009 passed in Claim Case no.17 of 2001 by Sri Birendra
Kumar , District Judge-cum- Motor Vehicle Accident Claim
Tribunal, Madhepura

————–

==========================================================
Branch Manager, National Insurence Company Ltd. Branch Office, Madhepura,
District Madhepura and its sister office situated at Hospital Road, Forbesganj,
District-Araria represented through Shri Anjani Kumar working as A.O. and duly
constituted attorney of National Insurance Company having its Regional Office at
4th Floor, Sone Bhawan, P.S. Sachivalaya, District-Patna ( Opp.Party no.2)
…. …. Appellant
Versus

1. Ram Kuamri Devi Wife of Late Gajendra Prasad Yadav, resident of Village-

Chaklasiripur, P.S. Madhepura, District-Madhepura ( Claimant)

———————Claimant/ Respondent 1st set

2. Santosh Kumar, Son of name not known, resident of court colony Birpur, P.S.
Birpur, District-Supaul ( Opp.Party no.1) ——— Respondent 2nd Set
==========================================================
Appearance:

For the Appellant : Sri Shilendra Kumar, Advocate
For the Respondent No.1: Sri. Shambhu Sharan Singh, Advocate
(Amicus Curiae)
For the Respondent no.2: Sri Sanjay Kumar Pandey, Advocate
==========================================================
CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR

————-

ORAL JUDGMENT

————

Rakesh Kumar, J. The present appeal under Section 173 of the Motor Vehicle

Act,1988( hereinafter referred to as the ” M.V.Act”) has been preferred

against the Judgment dated 8th December,2009 and Award dated

16.12.2009 passed by the learned District Judge-cum- Motor Vehicle

Accident Claim Tribunal, Madhepura ( hereinafter referred to as the

“Claim Tribunal”) in M.V. Claim Case no.17 of 2001.

2. In this case despite valid service of notice, the Respondent

no.1/ Claimant had not appeared and thereafter by order dated
Patna High Court MA No.103 of 2010 dt.15-10-2011 2

13.05.2011, Sri Shambhu Sharan Singh, learned counsel was appointed

as amicus curiae to assist the Court on behalf of Respondent no.1/

Claimant. Sri Sanjay Kumar Pandey, learned counsel has appeared on

behalf of Respondent no.1 i.e. owner of the offending vehicle.

3. Short fact of the case is that on 30.10.1998, while the

husband of Respondent no.1/ Claimant was moving for purchasing

certain goods from grocery shop and on way he was dashed by a mini

bus, bearing Registration No.BR-1P-6053. The said mini bus was being

run as “Jai Chandi Travels”. The accident had taken placed due to rash

and negligent driving of the vehicle and, as such, an F.I.R. vide

Madhepura P.S. Case No.277 of 1998 was registered against the driver

of the offending vehicle. After investigation, chargesheet was submitted

However , due to death of the driver by order dated 04.09.2000 the case

against the driver was closed. After the accident, the Respondent

no.1(widow of the deceased ) filed a case for compensation under the

M.V.Act before the court of learned District Judge-cum- Motor Vehicle

Accident Claim Tribunal, Madhepura vide M.V. Claim Case no.17 of

2001 arraying the owner of the vehicle as well as the Insurance

Company i.e. the appellant as Opp.Parties. Before the Claim Tribunal,

despite service of notice, the owner of the offending vehicle did not

appear and, as such, the case proceeded against him ex parte. It was not

disputed by the parties that the offending vehicle was insured by the

appellant and the vehicle was under insurance cover at the time of

accident. Before the Claim Tribunal, the claimant examined altogether

five witnesses to prove its case. It further appears that none of the

witnesses, who were examined in support of the claim case, were cross-
Patna High Court MA No.103 of 2010 dt.15-10-2011 3

examined on behalf of the insurer. The Insurance Company had only

filed a written statement before the court below raising some ornamental

objections.

4. After hearing the parties and perusing the evidences

brought on record, the learned claim tribunal by the impugned Judgment

and Award has directed the insurer/appellant to pay total compensation

amount of Rs.3, 70,000/- which includes loss of consortium and funeral

expenses. Since Rs.50,000/- was already paid to the claimant as interim

compensation, the total remaining compensation amount i.e.

Rs.3,20,000/- was directed to be paid to the claimant along with interest

@ 9% per annum , which was to be calculated from the date of

admission of the claim petition i.e. 18.02.2002. From the impugned

Judgment, it is further evident that the insurer had not brought on record

any material to prove any breach of terms and conditions of the

insurance policy. Since the owner of the vehicle had not appeared

before the court below nor any evidence was brought on record

regarding the driving licence of the driver of the offending vehicle , the

claim tribunal granted opportunity to the insurer/appellant to recover

the paid amount from the insured i.e. owner of the vehicle.

5. Sri Shailendra Kumar, learned counsel for the appellant

has tried to establish that the learned claim tribunal even in absence of

evidence regarding driving licence has illegally and incorrectly directed

the appellant to make payment of the compensation amount.

6. Sri Shambhu Sharan Singh, learned counsel ( amicus

curiae) appearing on behalf of the Respondent no.1 on the basis of

averment made in the written statement, which was filed by the
Patna High Court MA No.103 of 2010 dt.15-10-2011 4

Insurance Company before the court below submits that there is no

averment in the written statement regarding non-availability of the valid

driving licence of the vehicle in question. He has further argued that

since the Insurance Company had even failed to cross-examine any of

the witnesses , it would be difficult for the appellant to question the

impugned Judgment and award. From the record, it appears that nothing

was pleaded by the Insurance Company claiming that the offending

vehicle at the time of accident was being driven by a person, who was

not having any valid driving licence. It is further evident that none of

the witnesses examined on behalf of the claimant was cross examined.

In such a situation, it was very difficult for the learned counsel

appearing on behalf of the appellant to question the legality of the

impugned Judgment and award.

7. After going through the materials available on record, I

find that the learned claim tribunal has committed no error and, as such,

there is no requirement to interfere with the impugned judgment and

award. Accordingly, appeal stands dismissed with direction to the

appellant to pay the compensation amount along with interest, as

directed by the claim tribunal i.e. @ 9% per annum from 18.2.2002 till

the date of payment within a period of two months from the date of

receipt/production of a copy of this order.

8. It goes without saying that that if so advised, the appellant

can avail remedy in view of liberty granted by the claim tribunal.

9. In view of rejection of the appeal, the statutory amount

deposited at the time of filing of this appeal may be remitted back to the

court below for its payment to the claimant.

Patna High Court MA No.103 of 2010 dt.15-10-2011 5

10. Before parting with the Judgment, I must appreciate the

assistance rendered by Sri Shambhu Sharan Singh, learned counsel

(amicus curiae), who after examining the entire record of the case has

rendered assistance to the court.

11. Sri Shambhu Sharan Singh, learned counsel, who has

appeared as amicus curiae in this case , shall be paid Rs.1500/-( fifteen

hundred) as fee by High Court Legal Aid Committee, Patna.

( Rakesh Kumar, J.)
Patna High Court, Patna
Dated : the 15th October,2011
Nawal Kishore Singh/N.A.F.R.

Kumar Satya Prakash vs State Of Bihar on 30 September, 2011

Patna High Court
Kumar Satya Prakash vs State Of Bihar on 30 September, 2011
Author: Hemant Kumar Srivastava
       In the matter of an application under section 482 of the
                     Code of Criminal Procedure.
                                   --------

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.8497 of 2009
Kumar Satya Prakash
…. …. Petitioner
Versus
State Of Bihar
…. …. Opposite Party
Appearance :

For the Petitioner : Mr. Arun Kumar Prasad, Advocate
For the Opposite Party : Mr. Nityanand Tiwary, A.P.P.
=======================================================
====
CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA

——————

This petition under section 482 of the Cr. P.C. has been filed on

behalf the petitioner for quashing order dated 3.1.2009 passed by the

learned Sessions Judge, Saran at Chapra in Cr. Revision no. 107/2008 and

order dated 5.2.2008 passed by Judicial Magistrate, Ist Class, Saran at

Chapra in Trial no.2599/2008.

2. The brief fact of the case, is that Factory Inspector, Chapra

filed a written complaint petition on 29.9.2005 before the learned Chief

Judicial Magistrate Saran at Chapra under the provision of Factories Act,

1948 against the petitioner mentioning therein that the petitioner has

violated provision of section 6 of the Factories Act, 1948 read with rule 7

of the Bihar Factory Rule, 1950 which is punishable under section 92 of

the Factories Act, 1948. The above stated Factory Inspector mentioned in

his written complaint that on 5.7.2005, he inspected premises of M/s

Pankaj Industry situated at Digwara District Saran and at the time of

inspection, he found 3 to 4 labourers working in the said factory. In

course of his inspection, he found that licence fee and renewal of the

licence for the years 1992, 1994 to 2005 had not been deposited and the

aforesaid factory was being run without renewal of the licence and
Patna High Court Cr.Misc. No.8497 of 2009 dt.30-09-2011
2

without having valid licence. The petitioner was proprietor of the

aforesaid factory. After inspection, the Factory Inspector issued notice to

the petitioner but the petitioner did not respond to the aforesaid notice and

subsequently, the above stated Factory Inspector filed written complaint

in the court of Chief Judicial Magistrate Saran at Chapra as stated above.

3. The petitioner filed a petition in the court of Sri D.L. Prasad,

Judicial Magistrate, lst Class, Saran in Trial no. 2599/2008 praying therein

to drop the proceeding and discharge him from aforesaid Trial no.

2599/2008. The aforesaid petition was rejected by Sri D.L. Prasad, Judicial

Magistrate, lst Class, Saran vide order dated 5.2.2008 which is in challenge

in this petition. After rejection of the above stated petition, the petitioner

preferred Cr. Revision no. 107/2008 in the court of learned Sessions Judge,

Saran against the order dated 5.2.2008 passed by Sri D.L. Prasad, Judicial

Magistrate, lst Class, Saran in Trial no. 2599/2008 but the learned Sessions

Judge, too, dismissed the aforesaid revision passing the impugned order

dated 3.1.2009 which is also in challenge before this court.

4.This court gave several adjournments to the State to file

counter affidavit but no counter affidavit was filed on behalf of the State

and subsequently, petition under section 482 of the Cr. P.C filed on behalf

of petitioner was admitted by this court vide order dated 12.1.2011.

5. Learned counsel for the petitioner challenged the impugned

order on the ground that admittedly, petitioner was running a saw mill on

the alleged date of the occurrence and the premises of saw mill of the

petitioner was inspected by the Factory Inspector. It is also contended by

him that the petitioner had taken valid licence from the Forest department

and Factory Inspector had no power to make search and seizure in respect

of saw mill of the petitioner. It is further contended by him that after

2
Patna High Court Cr.Misc. No.8497 of 2009 dt.30-09-2011
3

passing of Bihar Saw Mills (Regulation) Act, 1990, the jurisdiction of

Factory Inspector has already been seized and only officials of the Forest

department could have inspected the premises of saw mill of the

petitioner. To fortify his above stated contentions, learned counsel for the

petitioner referred section 24 of the Bihar Saw Mills (Regulation) Act,

1990.

6. On the other hand, learned Addl. Public Prosecutor

appearing for the State submitted that Bihar Saw Mills (Regulation) Act,

1990 has been enacted to protect forest whereas Factories Act is for the

purpose of regulating and running of the factories and the Factories Act

has been enacted for the purpose of welfare of the labourers engaged in the

factories and, therefore, section 24 of the Bihar Saw Mills (Regulation)

Act, 1990 does not operate as a bar in application of the Factories Act,

1948.

7. Having heard the rival contentions of both the parties, I have

gone through the record as well as relevant provisions of the Factories Act

as well as Bihar Saw Mills (Regulation) Act, 1990.

8. Here, I would like to refer section 24 of the Bihar Saw Mills

(Regulation) Act, 1990 which runs as follows:-

“Other Act and laws not to apply to saw mill or
saw pit – nothing contained in any other Act or law,
rule, order or any other thing having a force of law in
any area of the State shall apply to the saw mill and
saw pit and sawing in respect of matters for which
provisions are contained in this Act”.

The above Bihar Saw Mills (Regulation) Act, 1990 was

published in Bihar Gazette on 7.12.1990. The aforesaid Act has been

enacted to make provision for regulating in the public interest the

establishment and operation of saw mills and saw pits and trade of sawing

for the protection and conservation of forest and the environment.

3
Patna High Court Cr.Misc. No.8497 of 2009 dt.30-09-2011
4

Section 7 of the aforesaid Act relates to grant, renewal,

revocation or suspension of licence. The aforesaid section 7 of the Bihar

Saw Mills (Regulation) Act, 1990 prescribes for grant of licence, renewal,

revocation or suspension for running a saw mill. Section 8 of the aforesaid

Act gives power to licensing officer or any other person authorized by the

licensing officer in this behalf for entry, inspection, search, seizure etc. in

respect of any saw mill or saw pit. Section 2(d) of the above stated Act

define the word licensing officer and says that licensing officer means a

licensing officer appointed under sub-section (1) of section 3 of the Bihar

Saw Mills (Regulation) Act, 1990. Section 3 of Bihar Saw Mills

(Regulation) Act, 1990 says that the State Government may, by

notification, appoint an officer not below the rank of Divisional Forest

officer to be licensing officer for the purpose of this Act and define the

local limits within which licensing officer shall exercise the powers

conferred and performed duties imposed on him by and under this Act.

9. In this connection, section 5 of the Bihar Saw Mills

(Regulation) Act, 1990 is also relevant. Section 5 of the above stated Act

says that on and from the appointed day- no person shall establish a saw

mill or saw pit except under the authority and subject to the conditions of a

licence granted in that behalf under this Act and no person shall operate a

saw mill or a saw pit in existence on the said date, unless he is granted a

licence in that behalf under this Act on an application made by such person

within a period of thirty days from such date. Section 2(a) of the above

stated Act says that appointed day means a date appointed under sub-section

(3) of section 1.

10. The State Government on 27.4.1993 issued notification la0 ou

fodz; 33/93- 1929–appointing Divisional Forest officer, Saran as licensing

4
Patna High Court Cr.Misc. No.8497 of 2009 dt.30-09-2011
5

officer for Saran division. Therefore, after publication of the aforesaid

notification only Divisional Forest officer had got jurisdiction to issue

licence for saw mill and the Divisional Forest officer had got jurisdiction to

make inspection, search and seizure of a saw mill.

11. In the present case, Factory Inspector inspected the

premises of saw mill of the petitioner on 5.7.2005 and found some

irregularities such as non-renewal of licence and running of saw mill

without having any valid licence but on the above stated date Factory

Inspector had got no power to inspect saw mill of the petitioner in view of

application of Bihar Saw Mills (Regulation) Act, 1990 and the power of

above stated Factory Inspector had already been seized after application of

the above stated Act. Apart from this, section 24 of Bihar Saw Mills

(Regulation) Act, 1990 bars the application of Factories Act, 1948 in

respect of saw mill and saw pit.

12. On the basis of the aforesaid discussions, I am of the opinion

that not only the learned Judicial Magistrate, Chapra but also the learned

Sessions Judge, Chapra committed an error in not dropping the proceeding

against the petitioner which has been initiated on the basis of report of

Factory Inspector after coming into force of Bihar Saw Mills (Regulation)

Act, 1990.

13. In the aforesaid circumstances, the continuance of

proceeding against the petitioner is an abuse of process of the court and, in

my view, it must be quashed.

14. Accordingly, order dated 3.1.2009 passed by the learned

Sessions Judge, Saran at Chapra in Cr. Revision no. 107/2008 and order

dated 5.2.2008 passed by Judicial Magistrate, Ist Class, Saran at Chapra in

Trial no.2599/2008 are, hereby, quashed with direction to the Judicial

5
Patna High Court Cr.Misc. No.8497 of 2009 dt.30-09-2011
6

Magistrate, Saran to pass a fresh order on the above stated petition of the

petitioner in the light of the observations given in this order.

15. In the aforesaid manner, this quashing petition stands

disposed off.


             The Patna High Court
             The 30th September,2011
             Shahid/ NAFR

  Shahid                                              ( Hemant Kumar Srivastava,J)




                                           6
 

Shankar Sao vs State Of Bihar on 30 September, 2011

Patna High Court
Shankar Sao vs State Of Bihar on 30 September, 2011
Author: Gopal Prasad
            Criminal Appeal (SJ) No.129 of 1998
                           With
            Criminal Appeal (SJ) No. 189 of 1998

                          ~~~~~~
Against the Judgment of conviction dated 19.03.1998 and order of
sentence dated 20.03.1998 passed by Sri Baikunth Nath Shahi, learned
Additional District and Sessions Judge-IInd, Nawadah in Sessions Trial
No. 116 of 1996 / 198 of 1996.
                         ~~~~~~
Dipak Kumar @ Dilip, Son of Bishun Ram, resident of village -
Kadirganj, P. S. - Nawadah, District - Nawadah.
         .... .... Appellant (Criminal Appeal (SJ) No. 129 of 1998).

                          ~~~~~~
Shankar Sao, Son of Krishna Sao, resident of village - Quadirganj, P.
S. - Nawadah, in the district of Nawadah.
       .... .... Appellant (Criminal Appeal (SJ) No. 189 of 1998).

                         Versus
The State Of Bihar
                          .... .... Respondents (In both the Appeals)

~~~~~~
Appearance :

(In CR. APP (SJ) No. 129 of 1998)
For the Appellant : Mr. Surendra Kishore Thakur, Advocate.

Mr. Pramod Kumar Verma, Advocate.

For the Respondents : Mr. Parmeshwar Mehta, A.P.P.

(In CR. APP (SJ) No. 189 of 1998)
For the Appellant : Mr. Shakil Ahmad Khan, Sr. Advocate.

Mr. H. A. Khan, Advocate.

Md. Mushtaq Alam, Advocate.

Mr. Jay Prakash Singh, Advocate.

Mr. Ram Pravesh Tiwari, Advocate.

Mr. Salendra Kumar Singh, Advocate.

For the Respondent : Mr. Parmeshwar Mehta, A.P.P.

~~~~~~

PRESENT

THE HON’BLE MR. JUSTICE GOPAL PRASAD
2

GOPAL PRASAD, J. These two appeals have been heard together and

are being disposed of by the common judgment as both arise out of the

judgment and order dated 19.03.1998 passed by Sri Baikunth Nath Shahi,

learned Additional District and Sessions Judge-IInd, Nawadah in Sessions

Trial No. 116 of 1996 / 198 of 1996 arising out of Nawadah P. S. Case No.

207 of 1995, GR. No. 1284 of 1995 by which the appellant Dipak Kumar @

Dilip in Cr. Appeal (SJ) No. 129 of 1998 has been convicted under Section

366A of the Indian Penal Code and sentenced to undergo rigorous

imprisonment for seven years. He has further been convicted under Section

376/109 of the Indian Penal Code and sentenced to undergo rigorous

imprisonment for seven years. However, it has been ordered that both the

sentences shall run concurrently. The appellant, namely, Shankar Sao in Cr.

Appeal (SJ) No. 189 of 1998 has been convicted under Section 376 of the

Indian Penal Code and sentenced to undergo rigorous imprisonment for ten

years and to pay a fine of Rs.50,000/- and in default of payment of fine to

undergo rigorous imprisonment for one year more and if the amount of fine

is paid by the appellant then Rs.40,000/- out of that be paid to the victim girl

for rehabilitation and stand in the society and has further been convicted

under Section 366A of the Indian Penal Code and sentenced to undergo

rigorous imprisonment for seven years. However, it has been ordered that

both the sentences shall run concurrently.

3

2. The prosecution case, as alleged, in the written report is that the

informant Ishwari Mahto (P. W. 3) is the grandfather of the victim Madhuri

Kumari. On 12.10.1995 the victim Madhuri Kumari had gone for study to

Kusum Kanya High School, Kadirganj as usual along with her friend Radha

Kumari. The victim did not return till 5:00 P.M. to her home at village Harla.

The informant went to the house of Radha Kumari to enquire about Madhuri

Kumari. Radha Kumari disclosed hesitantly that Shankar Sao forcibly

abducted/kidnapped the victim Madhuri Kumari by dragging her in a tempo

at Shakri river. The informant went to the house of Krishna Sao the father of

Shankar Sao to inquire about Madhuri Kumari. It is alleged that Krishna Sao

and his wife, Umesh Sao and his wife and sister of Umesh Sao said that his

granddaughter will return after four days and if he made Hulla and spread the

news then the informant himself will loose his prestige. The informant

doubted the hand of these people in the kidnapping of victim by Shankar Sao.

3. The informant lodged the First Information Report on 14.10.1995.

During the investigation the victim produced before the police and she was

medically examined. Her statement was recorded under Section 164 of the

Cr.P.C. before the Judicial Magistrate. However, after investigation, the

charge-sheet was submitted for offence under Sections 376 and 366A of the

Indian Penal Code. The charge was framed under Sections 376 and 366A of

the Indian Penal Code against Shakar Sao and under Sections 376/109 and

366A of the Indian Penal Code against Dipak Kumar @ Dilip and others and
4

trial proceeded. During the trial eight witnesses were examined on behalf of

the prosecution and five witnesses were examined on behalf of the defence.

4. P. Ws. 1, 2 and 4 have stated that they do not know anything about

the occurrence and have been declared hostile.

5. P. W. 6, Radha Kumari stated in her evidence that on the date of

occurrence she had gone to study alone and no such occurrence occurred.

This witness has also been declared hostile.

6. P. W. 3 is the informant. He in his evidence supported the prosecution

case in the written statement to the effect that his grand daughter, the victim

went to study as usual with Radha Kumari and did not return till 5:00 P.M.

Then he went to Radha Kumari who disclosed that Shankar Sao has

kidnapped the victim while returning and then he went to the father and

brother of Shankar Sao who stated that the girl will return after four days.

7. P. W. 5 is the victim. She in her evidence stated that while she was

returning from Coaching Centre, Kadirganj in way to her home at Harla on

12.10.1995, the date of occurrence when she reached at eastern corner of the

bridge at Shakri river Shankar Sao came there on a tempo and lifted her in the

tempo. When she tried to raise alarm her mouth was gagged and she was

threatened and thereafter Shankar Sao took away her to Nawadah. At

Nawadah a car was standing in which Dipak Kumar @ Dilip and Kapildeo

Goswami were sitting. She was again forced by Shankar Sao to sit in the car

and thereafter she was taken to Rajgir and kept her in Akash Hotel. Thereafter
5

Shankar Sao asked Dipak Kumar and Kapildeo Goswami to go out of the

room. Dipak Kumar and Kapildeo Goswami went out then Shankar Sao raped

her several times in the Hotel for three days. In reply to a court question she

stated that two other accused did not rape her and whenever she tried to raise

alarm her mouth was closed by Shankar Sao. On 14.10.1995 Umesh Sao, the

elder brother of Shankar Sao came in the Hotel and said to take her to

Nawadah. She was taken to Nardigang on 14.10.1995 and stayed in the night

at Sasural of Umesh Sao. On 15.10.1995 she was taken to Nawadah.

Thereafter on 15.10.1995 she went to the police station where Daroga

recorded her statement. On 16.10.1995 she was taken to Nawadah hospital

where she was medically examined and her statement was recorded by the

Magistrate on 17.10.1995. She identified the accused persons in dock.

8. P. W. 7 is the doctor who assessed her age on the basis of radiological

examination as 15 to 16 years and opined that hymen was intact admitting

two fingers loosely suggestive of sexual intercourse but no injury over the

private parts. However, on the basis of pathological examination he opined

that no evidence of sexual intercourse has been committed within 24 to 48

hours.

9. P. W. 8 is the I.O.

10. The defence of the accused as transpired from the suggestion and

cross-examination and the evidence of the defence witness is that the accused

Krishna Sao the father of Shankar Sao had got land in village Harla and the
6

informant Ishwari Mahto also belong to Harla and informant and his family

members were persuading Krishna Sao to transfer the land in their favour

otherwise they will teach him a lesson. The appellants have falsely been

implicated to grab the land of the accused Krishna Sao and Shankar Sao.

11. The defence witness deposed to the effect that they saw the verbal

altercation between Ishwari Mahto and Krishna Sao for transferring the land.

12. The trial court considering the evidence of the victim that she

supported the prosecution case about her kidnapping from Shakri river and

rape in the Akash Hotel by Shankar Sao and doctor found hymen was intact

admitting two fingers loosely suggestive of sexual intercourse convicted the

appellant Shankar Sao for the offence under Sections 366A and 376 of the

Indian Penal Code and further taking into consideration the evidence of the

victim P. W. 5 held that though the appellant Dipak Kumar @ Dilip was not a

party to rape but since involved in assisting the accused in kidnapping and

enticing away of the girl and abetting the accused no. 2 in commission of the

offence of rape has convicted and sentenced under Sections 376/ 109 and

366A of the Indian Penal Code.

13. Learned counsel for the appellants, however, contended that the

informant learnt from Radha Kumari about kidnapping of Madhuri Kumari by

Shankar Sao but Radha Kumari has not supported the prosecution case about

kidnapping and abetment of rape by the appellant Dipak Kumar @ Dilip.

There is evidence about kidnapping and rape except the evidence of
7

prosecution and there is no corroboration of her evidence. It is further

contended that the evidence of the doctor is contradictory to prosecution case.

The further defence of the appellants is that the informant has vulture eye on

two and half Bighas of land of Krishna Sao the father of the appellant

Shankar Sao in village Harla and it is asserted that the false case has been

lodged to grab the said land. It has further been contended that the victim was

said to have been kidnapped from Kadirganj to Nawadah and then Nawadah

to Rajgir and was kept in hotel for two days and then taken from Rajgir to

Nardiganj, Nardiganj to Nawadah but during her stay as well as in transit

from one place to another she neither resisted nor raised any alarm nor taken

any step to inform the public or even tried to flee away hence she was

consenting party. The doctor found her age as 15-16 years. The learned

Additional Sessions Judge who recorded her statement has assessed her age

as 18 years. Hence, she was in a consenting age and consenting party to

sexual intercourse and has eloped at her own sweet will. It has further been

contended that the investigation is perfunctory as the I.O. neither went to

Akash Hotel to investigate nor went to Coaching Center nor seized the cloth

of the victim which was besmeared with semen nor inquired about the tempo

and car on which she was kidnapped. Hence there is no corroboration on any

material particular. It has further been contended that the defence was not

given the opportunity to cross-examine the prosecutrix and the conviction on

the basis of prosecutrix is not sustainable.

8

14. Learned counsel for the State supports the order of conviction and

sentence and there is nothing to disbelieve the prosecution story.

15. In this case the victim Madhuri Kumari P. W. 5 has given her

version of the incidence in her deposition. From perusal of her evidence, it is

apparent that she supported the prosecution case about kidnapping by Shankar

Sao and having been taken to Rajgir and raped in Aakash hotel by Shankar

Sao and she was then taken back to Nawadah and left there where the police

recorded her statement. She was medically examined by the doctor at Sadar

Hospital. Her statement was recorded under Section 164 of the Cr.P.C. which

has been proved and marked as Ext. 2 in which she has also supported the

prosecution about her kidnapping on 12.10.1995 by Shankar Sao and taken to

Nawadah and from Nawadah she was again taken on car to Rajgir in which

accused Kapildeo Goswami and Dipak Kumar @ Dilip were sitting and she

was raped at Rajgir by Shankar Sao in Akash hotel. On 14.10.1995 Umesh

Sao came and asked then to take her to Nawada then she was brought by four

persons to Nawada and kept her at Nardiganj at the Sasural of Umesh Sao.

She stayed at Sasural in the night of 14.10.1995 Umesh Sao took her to

Nawada and left her then she went to police station.

16. P. W. 7 is the doctor who examined the victim on 16.10.1995 and

found hymen absent admitting two fingers loosely suggestive of intercourse

on injury over the private parts and hence it indicates about the sexual

intercourse supporting the prosecution case. Hence, taking into consideration
9

the evidence and reading the deposition of the victim shows that there is a

ring of truth and the conviction is not illegal merely because it proceeds on

uncorroborated evidence of the victim.

17. The criticism is that the evidence of the doctor and the statement

under Section 164 of the Cr. P. C. contradicts the prosecution case is devoid

of any merits. The doctor’s evidence is that hymen was intact admitting two

fingers loosely suggestive of sexual intercourse apparently a corroboration of

the prosecution case suggest a sexual intercourse. However, the doctor opined

that there is no evidence of intercourse within 24 to 48 hours. Taking into

consideration the sequence of event the occurrence took place on 12.10.1995

and the victim was taken to Rajgir and there she was raped on 12.10.1995 and

was kept at Rajgir on 12th, 13th and 14.10.1995. The victim has stated that she

was raped several times at Rajgir. However, the prosecutrix in her evidence

deposed that Umesh Sao came in hotel on 14.10.1995 and asked to leave the

girl and then the victim girl was taken on 14.10.1995 itself to Nardiganj and

they stayed at Sasural of Umesh Sao and then on 15.05.1995 she brought and

was left at Nawadah. She was medically examined on 16.05.1995. Hence,

apparently there was no rape on 14th and 15th so the doctor’s opinion that no

evidence of intercourse within 24 to 48 hours confirms the prosecution case

and defence cannot take any advantage of it. The statement under Section 164

of the Cr. P. C. is not contradictory. No has been drawn to the victim to any

part of the statement recorded under Section 164 Cr. P. C to give opportunity
10

to explain or record contradiction. From perusal of the statement under

Section 164 of the Cr. P. C. there is nothing contradictory rather it supports

the prosecution case. The name of the accused persons find mention in the

statement under Section 164 of the Cr. P. C. and role attributed. The name of

Shankar Sao find mention with allegation of having kidnapped the victim

from Shakri river and taken her to Nawadah, Nawadah to Rajgir where she

was raped and hence there is no merit in submission that the report of the

doctor or statement under Section 164 of the Cr. P. C are contradictory to the

prosecution case.

18. However, it has been asserted that the accused persons did not get

the opportunity to cross-examine the victim. From perusal of the records,

order dated 24.04.1997, passed in S. T. No. 198 of 1996, it appears that the

victim was examined on 24.04.1997 and the order-sheet mentions that the

prosecution witness Radha Kumari and Madhuri Kumari were produced in

police escort in pursuance of the letter no. 98 dated 11.04.1997 written to the

Superintendent of Police, Nawadah accompanied with warrant of arrest non-

bailable requesting to produce in proper escort as hurdle was reportedly being

created in their appearance. The accused also produced and the learned

counsel for the accused Param Ram Singh participated in recording the

evidence of P. W. 5 Madhuri Kumari the victim but after examination in chief

the defence lawyer filed a petition for transfer of the case on ground that the

informant is openly saying that he has won and hence refused to cross-
11

examine. However, the trial court taken it as a denial of the cross-examination

by the court below and considered it as a strategy of the accused to gain over

the victim or to otherwise influence the victim which required to be frustrated

and hence rejected the petition to transfer as well as adjournment of evidence.

However, refusal to cross-examine the witness was treated to be declined to

cross-examine and the witness was released.

19. Criminal Miscellaneous filed before this Court against the order of

learned Additional Sessions Judge was rejected. Thereafter case proceeded

and a petition filed on 28.06.1997 for permission to cross-examine the doctor

and the victim. However, permission to cross-examine the doctor was granted

but the permission to cross-examine the victim was refused in view of the fact

that the Hon’ble Court has not given any such indication hence having regard

to the fact that the appellants refused to cross-examine in unscrupulous

manner having chosen not to cross-examine. Now he cannot be allowed to be

benefited for his own mistake and evil design to win over the victim by hooks

and crooks.

20. Further criticism is that the evidence of the victim is not corroborated

by any material particular and did not pass through the test of cross-

examination. Further the victim has been tutored to lodge a false case in view

of the fact that the informant has vulture eye on two and half Bighas of land

of Krishna Sao the father of Shankar Sao and so the case has been filed to

grab the land. However, it is well settled that if the evidence of the witness is
12

found above board, reliable and trustworthy there is no need for any

corroboration and refusal to act on the testimony of victim of sexual assault in

the absence of corroboration is adding insult to injury.

21. To analyze the argument in support of need to corroboration and

absence of a relentless and remorse cross-examination is required to be tested

in the light of probabilities in context of the values in Indian society. It is

apparent that in Indian society a girl aged about 14-15 years will hardly admit

rape due to the social stigma attached as it reflects her chastity which is most

valuable which distinguishes her status in society jeopardizing the status of

her entire family. However, it must be realized that having regard to

prevailing morse and values of the Indian society, it is unconceivable that a

girl of 14-15 years of age would invent a false story of sexual assault. An

Indian girl at this stage age of 15-16 years is well aware about her reputation

and consequence of admitting rape and is also aware of the consequence of

jeopardizing the reputation of the entire family if the story is spread over in

the society and she knows the consequence getting a match or life partner or

getting her marriage in a respectable and acceptable family. Further it is

unimaginable that a grand father of the victim will lodge a case and will tutor

the minor daughter or an adolescent daughter aged 17-18 years of age to

invent such story or to support such a story to grab the land and wreak

vengeance. They will not do such a thing promoting or tutoring an adolescent

grand daughter for the simple reason that it will not only bring down the
13

prestige of the grandfather but the prestige of the entire family shall be put to

jeopardize and they will be loosing more than whatever the value of the land

and they will loose the status in society and the future prospect of the victim

in the life. The grand parents also expected to be concerned of the traumatic

effects on the psychology of the child having disastrous effect on their

growing age as the victim or the granddaughter will itself suffer unimazingly

to such an extent that it will be more injurious than to gain and hence the

suggestion that the appellants have been roped falsely at the instance of the

grandfather or to grab the land is devoid of any merit and further the

submission that the victim has been tutored to depose falsely also false to

ground is not acceptable to Indian context nor an evidence can be rejected

merely on ground that the victim was tutored or there is any corroboration.

This view is supported in decision reported in AIR 1983 SC 753.

22. Further criticism and assertion is that the victim was aged about

15-16 years old as it has come in the evidence of the doctor on the basis of

radiological test her age to be 15-16 years and there is margin of two years of

age and further the age of the victim has been assessed by Presiding Officer

as 18 years and hence the victim was in a consenting age as sixthly of Section

375 of the Indian Penal Code provides that the victim above 16 years is

capable to give consent for sexual intercourse. Hence, the victim was a

consenting party as the victim has not fled away or resisted or reported during

the captivity while she was taken from Kadirganj to Nawadah, Nawadah to
14

Rajgir, Rajgir to Nardiganj and Nardiganj to Nawadah. However, the victim

in her evidence in court as well as in her statement under Section 164 of the

Cr. P. C has specifically stated that when she was kidnapped by force by

Shankar Sao she raised an alarm or tried to raise an alarm but her mouth was

gagged and she was threatened. From the evidence, it is apparent that all

along through her captivity she was surrounded by Shankar Sao and others

had no opportunity either to flee away or to resist and she has reported that

she tried to raise alarm but her mouth was shut. There is nothing in evidence

that she was free to act on her own wish or she got any opportunity to run

away and hence the criticism that she did not act in a manner or to take any

steps to resist the kidnapping and rape during her captivity is devoid of any

merit. However, it is pertinent to mention that how the victim in adverse

situation will behave is not dependent on the wish of the accused but how a

person behaves in an adverse situation vary from man to man. Some persons

may got nervous in adverse situation and loose the power to resist. Some

persons may resist to some extent and some may be bold enough to fight even

putting his life on threat even if the miscreants are armed with deadly

weapon. However, merely because a person did not give passive resistance it

cannot mean his helpless resignation on face of inevitable compulsion cannot

be deemed as consent and hence the only conclusion relevant is that she was

kidnapped and kept under barrier and was raped against her will by the

appellant Shankar Sao.

15

23. Hence, having regard to the facts and circumstances since there is

clear and unequivocal evidence against Shankar Sao having kidnapped the

victim from Shakri river and have raped her at Rajgir and hence the offence

under Sections 366A and 376 of the Indian Penal Code is made out.

24. However, so far the appellant Dipak Kumar @ Dilip is concerned

the only evidence against him is that he was sealed in the car at Nawadah by

which the victim was brought in car. There is evidence that he was with the

victim from Nawada to Rajgir and then back to Nawada. However, the

ingredient of abetment is concerned it is either proved that the person

instigated or has conspired or intended to aid the commission of offence.

However, there is no evidence that Dipak Kumar @ Dilip instigated nor there

is evidence that he prior to the offence he conspired nor he was even present

at the time when Shankar Sao kidnapped the victim at Kadirganj. However,

so far intentional aid is concerned the only evidence is that the appellant had

mere association. However, there is no evidence that the appellant Dipak

Kumar @ Dilip had any intention either adding or in commission of offence

of rape be committed. However, mere presence at Rajgir cannot amount to

intentional aid for rape unless it is proved that Dipak Kumar @ Dilip or the

person hold some position to influence or direct encouragement or having

joined a conspiracy for the offence under Section 376/109 of the Indian Penal

Code hence conviction under Section 376/109 of the Indian Penal Code is

concerned the appellant Dipak Kumar @ Dilip is entitled to get a benefit of
16

doubt and conviction under Section 376/109 of the Indian Penal Code is set

aside. However, the prosecution proved that Dipak Kumar @ Dilip followed

from Nawada in car and hence conviction under Section 366A is maintained.

Hence, Criminal Appeal (SJ) No. 129 of 1998 is allowed in part.

25. Learned counsel for the appellants, however, contended that there is

a compromise petition filed and having regard to the fact that the occurrence

is of the year 1995 hence a lenient view may be taken.

26. However, taking into consideration the fact that the victim was

kidnapped by Shankar Sao at Kadirganj and Dipak Kumar @ Dilip only

joined in Nawada and hence the ends of justice shall meet by sentencing

Dipak Kumar @ Dilip for the period already undergone during the

investigation as well as after conviction for the offence under Section 366A of

the Indian Penal Code. However, so far the accused Shankar Sao in Cr.

Appeal (SJ) No. 189 of 1998 is concerned his conviction under Section 376

and 366 is maintained and however, the sentence under Section 376 of the

Indian Penal Code is reduced 10 years to 7 years and hence the appeal is

dismissed with modification in sentence.

(Gopal Prasad, J.)

Patna High Court, Patna.

Dated, the 30th September, 2011.

N.A.F.R./Kundan.