STATE OF BIHAR Vs. HARDEO MISHRA

JUDGEMENT

(1.) THIS appeal by the State has been preferred against the judgment of acquittal dated 18.5.1991 passed in Sessions Trial No. 187/86 by Shri Mudrika Prasad, 1st Additional Sessions Judge, Patna.

(2.) THE prosecution case, in short, is that on 15.3.1981 at 6.30 PM informant Sharda Devi gave fardbeyan before the police officer of Kankerbagh Police Station that she was married to accused Krishna Kant Mishra son of Hardeo Mishra (accused no. 1) about three and half years ago in the Court and after marriage she was living with her husband in Mohalla Kankerbagh Colony, Patna. Few days after marriage she gave birth to.a male child from her husband. This caused annoyance to her father -in -law Hardeo Mishra and brother -in -law Raj Kumar Mishra and they all started planning to do away with the child and to turn her out from the house. It is alleged that with that intention they began to torture her. At times she was assaulted also. They took her husband in confidence and they all assaulted and ousted her form the house and retained her child. Inspite of her best efforts she could not get the custody of the child. The informant along with her father Fagu Choudhary went to her Sasural for the custody of the child but the accused persons on some pretext or the other refused to hand over the custody and informant that the child has been sent to Ara where he was living with his grand mother. The informant suspected foul play at the hands of the accused persons and strongly believed that the child has been kidnapped by them for the purpose of murder. On the basis of fardbeyan of the informant, the police registered Kadam Kuan Kankerbagh Colony P.S. Case No. 189 of 1981 u/s. 364 of the Indian Penal Code (in short as the Code) and after completing investigation submitted charge sheet. It appears from the lower Court record that the learned Chief Judicial Magistrate, Patna by order dated 1.9.1981 rejected the charge sheet and ordered further investigation in the case. The matter was accordingly sent to the Investigating Officer for further investigation. It further appears from the lower Court record that the police sat over the matter and no step for further investigation was taken. The learned Magistrate after hearing the informant 'scounsel on the same charge sheet by order dated 29.8.1995 took cognizance u/s. 364 of the Code against the accused persons. After commitment the accused - respondents faced trial and were acquitted by judgment and order dated 18.5.1991. Against the said judgment of acquittal the State has preferred the present appeal before this Court.

(3.) IT appears from the lower Court record that the prosecution in support of the allegations examined six witnesses who are P.W. 1 Fago Choudhary, P.W. 2 Surendra Ram, P.W. 3 Sarda Devi, P.W. 4 Vijay Singh, P.W. 5 Satendra Kumar Singh and P.W. 6 Deo Nandan Prasad. Out of them P. Ws. 4, 5 and 6 are formal witnesses who have proved some papers. P.W. 4 has simply proved the affidavit, Exhibit -1. P.W. 5 has proved the case diary, Exhibit -2 and charge sheet, Exhibit -3. P.W. 6 has proved the fardbeyan, Exhibit -4 and the two petitioners filed by the informant, Exhibit -5 and 5/1. The prosecution has also brought on record the certified copy of the judgment, Exhibit -6 to show that a case of maintenance was filed by the informant against the accused -respondent and maintenance was allowed in that case. It was also contended by the informant that in that case it was held that she is legally wedded wife of Krishna Kant Mishra.