LAXMI NARAIN SINGH. DEVENDRA SINGH AND BIMALDEO SINGH Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) The aforementioned appellants have been held guilty of the charges under Ss. 364, 302read with Sec. 34and Sec. 201of the Indian Penal Code (in short the 'Code') and have been convicted thereunder. Each one of them has been sentenced to undergo rigorous imprisonment for life under Ss. 302/34of the Code. They have been further sentenced to rigorous imprisonment for 10 years under Sec. 364of the Code and 3 years under Sec. 201of the Code. The case against them arose on the statement of Bharat Paswan (P.W. 5) recorded on 1.11.73 at about 8 A.M. at police station Mathiani in the district of Begusarai. According to him Baldeo Paswan (P.W. 3) had come to his place in the previous night about 8 P.M. and reported that the appellants namely Laxmi Narain Singh, Devendra Singh and Bimaldeo Singh had abducted Borhan Paswan from his house. This Baldeo Paswan (P.W. 3) had learnt about the incident of abduction of Borhan from the daughter -in -law of Borhan Paswan and thereafter by one Badami Devi (P.W. 7). He was told that the appellants had taken away Borhan on the plea of harvesting the maize crops. Later on he could further get from the son of Lakhan that a dead body was found floating in a Dhar by the side of river Ganges. On getting the news Bharat Paswan (P.W. 5) suspected that it might be the dead body of Borhan Paswan, but since it was getting late in the night he did not go to the place. The following morning he went to the spot and found that It was the dead body of Borhan Paswan.

(2.) On the information so lodged before the Police, Fardbeyan (Ext. 4) was recorded and on the basis of which formal F.I.R. (Ext. 3) was drawn up. The police registered a case and took up investigation, got the autopsy of the dead body done by Dr. S.M. Mehdi (P.W. 6) and after examining some of the witnesses submitted charge -sheet against the aforesaid three appellants, and they were thus put on trial and convicted of the charge of abduction of Borhan Paswan and causing his death. In the charge as framed by the court below it has been said that the abduction was done on 28.10.73 which was a Sunday.

(3.) During the trial prosecution examined 11 witnesses but in appeal before us Counsel for the parties submitted that we are concerned with the statement of Badami Devi (P.W. 7) because she is the only witness who has spoken on the point of abduction. The evidence of other witnesses are corroborative in nature because they all heard from Badami Devi (P.W. 7) about the forcible removal of Borhan Paswan from his house. These witnesses are P.Ws. 1, 2, 3, 4 & 5. They have supported the case of the prosecution to the extent that they were told about the factum of abduction of Borhan Paswan by the three appellants. In this context it has been argued, and in our opinion rightly, that the evidence of P.W. 7 alone deserves consideration to find out how far the prosecution succeeded in proving the charge. It will be relevant to state here that the dead body was recovered after 5 days from the alleged date of occurrence. It was in the advance state of decomposition. Skin and hairs were pooling off. At some stage an attempt has been made to argue that the dead body was beyond identification. It was not the dead body of Borhan. But this point was not seriously contended in view of the identification of the dead body by Badami Devi (P.W. 7) herself and other witnesses above. Various infirmities have been pointed out in the statement of P.W. 7 and the most important of which is that she was examined by a Magistrate under Sec. 164Cr.P.C. No doubt her statement was recorded under Sec. 161Cr.P.C. by the investigating officer during the course of investigation. The investigating officer has not been examined in this case. Even the relevant part of the police case diary has not been brought on the record.