Supreme Court of India

Appeal (Crl.), 1612 of 2015, Judgment Date: Dec 01, 2015

                                                        REPORTABLE
                 IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 1612  OF 2015
                 (Arising from SLP(Crl.) No.9944/2013)


Madan Razak                                                       ..Appellant

                               versus

State of Bihar and others                                       ..Respondents



                            J U D G M E N T


JAGDISH SINGH KHEHAR,J.


            Leave granted.

2.          Saraswati Kumari,  the  daughter  of  the  appellant  (also  the
complainant) in this case  is  stated  to  have  gone  to  attend  a  “mela”
(festival) along with her brother - Sunny Devol, and her  cousin  brother  -
Devender Razak, on 21.10.2007.  Saraswati Kumari did  not  return  from  the
“mela”.  Her dead body was however recovered on  22.10.2007.   Madan  Razak,
the father of Saraswati Kumari,  identified  her  body  at  police  station,
Bibhutipur, on 23.10.2007.
3.          The record of this case reveals, that a Chawkidar -  Bindeshwari
Paswan, lodged a first information report bearing  no.  180  of  22.10.2007,
when the body of a half naked girl-child was recovered.  A  perusal  of  the
report reveals, that  the  child  of  about  13/14  years,  whose  body  was
recovered, was not identified (and was referred to as  –  unknown  girl,  in
the first information report).  The first information report  also  reveals,
strangulation marks, as also,  the  presence  of  semen  and  blood  on  the
genitals of the deceased.  The  aforesaid  first  information  report  dated
22.10.2007 further indicated that froth was emerging from the mouth  of  the
deceased.
4.          Consequent upon the identification  of  his  daughter  Saraswati
Kumari, Madan Razak, the  appellant-complainant  addressed  a  letter  dated
23.10.2007 to the Station House Officer, Bibhutipur, seeking custody of  the
dead body, so as to enable him to cremate the same at  his  residence.   The
dead body was  accordingly  released  to  the  father  -  Madan  Razak,  for
cremation.
5.          The next  chronologically  relevant  fact  took  place  only  on
6.11.2007, when  the  complainant  Madan  Razak  addressed  two  letters,  a
communication  to  the   Collector,   Smastipur,   and   another,   to   the
Superintendent of  Police,  Smastipur.   In  the  letter  addressed  to  the
Collector, Smastipur, he referred to the first  information  report  bearing
no.180 of 22.10.2007, and sought compensation of Rs.2,00,000/-  (Rupees  two
lakh only) on account of the brutal  rape  and  murder  of  his  daughter  –
Saraswati Kumari.  In the second  communication  to  the  Superintendent  of
Police, Smastipur, he identified the  persons  who  had  allegedly  forcibly
kidnapped his daughter – Saraswati Kumari, whilst  she  was  returning  from
the “mela” on 21.10.2007. He requested  for  action  against  all  the  five
identified accused.
6.          Based on the complaint made by  Madan  Razak,  statements  of  a
number of witnesses were recorded by the  police.   However  no  action  was
taken.  Based on the factual position disclosed by the  complainant  in  his
communication dated 6.11.2007, he filed  a  private  complaint  bearing  no.
970/2007 dated 5.12.2007, before the Additional Chief  Judicial  Magistrate,
Rasoda. The above complaint  was  marked  for  investigation  by  the  above
Court.  Investigation was accordingly conducted jointly for the  allegations
contained in FIR No. 180 of 22.10.2007, and the  private  complaint  bearing
no. 970/2007 dated 5.12.2007. The daily case report with  reference  to  the
complaint, referred to above, depicting the investigation made by  the  Sub-
Divisional Police Officer, Rosada, reveals the names of the witnesses  whose
statements  were  recorded  under  Section  161  of  the  Code  of  Criminal
Procedure, as also, the details of the investigation.
7.           The  above  daily  case  report  inter  alia  highlights,   the
statement of Krishnamurti Mahto, the  then  Sarpanch  of  village  panchayat
Bariya, who had visited the spot from  where  the  dead  body  of  Saraswati
Kumari was recovered, but could not identify her.  Likewise,  the  statement
of Chander Shekar, Sub-Sarpanch, village Yogia, who had  also  gone  to  the
place from where the body was recovered, but had  also  failed  to  identify
the deceased. To the same effect, the statement  of  Arvind  Kumar  Das  was
recorded. He too could not  identify  the  deceased.   All  these  witnesses
whose statements were recorded under Section 161 of  the  Code  of  Criminal
Procedure were named by Madan  Razak,  as  the  persons  who  had  kidnapped
Saraswati Kumari on 21.10. 2007.  In addition,  it  was  pointed  out,  that
they were teachers of the deceased Saraswati Kumari, as  they   were  tutors
engaged by the Nutan  Coaching  Centre,  which  was  attended  by  Sarastawi
Kumari.  The inference sought to be drawn was, that the dead  body  was  not
identified, to delay the emergence  of  the  truths,  for  self-serving  and
extraneous considerations.  And, also to misdirect the investigation.
8.          It is also relevant to mention,  that  the  statement  of  Sunny
Devol, the brother of the deceased who had accompanied the deceased  to  the
“mela” on 21.10.2007, was also recorded under Section 161  of  the  Code  of
Criminal Procedure.  He too indicated the identity of the  persons  who  had
kidnapped his sister Saraswati Kumari, while they  were  on  the  way  back,
from the “mela”  on  21.10.2007.   All  the  above  facts  were  taken  into
consideration, when  the  Additional  Chief  Judicial  Magistrate,  Rospera,
issued summons, in the process of taking cognizance in the matter.
9.          The summoning order dated 6.4.2011, came to be assailed by  four
of the accused, namely, Arvind Kumar Das, Ramji  Mahto,  Krishnamurti  Mahto
and Jawala Singh before the High  Court  of  Judicature  at  Patna,  through
Criminal Miscellaneous No. 16254 of 2011.  The High Court  while  exercising
its power under Section 482 of the Code  of  Criminal  Procedure,  vide  the
impugned order dated 26.08.2013 was pleased to  quash  the  summoning  order
dated 6.4.2011.  10.        A perusal of the impugned  order  reveals,  that
the same was passed on the sole consideration, that  the  statement  of  the
witnesses recorded by the police were doubtful, as they  had  been  tendered
about a month after the incident.  The statements  were  recorded,  we  were
informed, for the first time on 20.11.2007.  It was  submitted,  that  prior
to 20.11.2007, the names of the alleged accused were not disclosed.  It  was
submitted, that the names of the accused were  known  on  the  very  day  on
which the incident had occurred (on  21.10.2007),  as  the  brother  of  the
deceased  -  Sunny  Devol,  had  allegedly  witnessed  the  alleged  accused
forcibly taking away his sister – Saraswati Kumari. This position  has  been
repudiated. The submission is shown to be incorrect, by making  a  reference
to the letter addressed by Madan Razak,  the  appellant-complainant  to  the
Superintendent of Police, Smastipur on 6.11.2007, wherein, the names of  the
accused were clearly mentioned.
11.         It is not  necessary  for  us  to  evaluate  the  statements  of
witnesses recorded under Section 161 of  the  Code  of  Criminal  Procedure.
The only question to be determined is, whether the  statements  disclosed  a
prima facie case, leading to an offence triable under the provisions of  the
Indian Penal Code.  We are of the considered view, that it is  not  possible
for us to overlook the statements of the witnesses  recorded,  reference  to
some of which, has been indicated in the instant order.  The reason for  the
delayed recording of  statements  is  also  disclosed  in  the  daily  diary
report.  The evaluation of the truth or falsity thereof,  will  be  possible
only after evidence is recorded, in the matter.  At the present juncture  to
quash  the  proceedings  initiated  against  the  accused  by  quashing  the
summoning order dated 6.4.2011 in exercise of the power vested in  the  High
Court under Section 482 of the Cr.P.C. is clearly not made out.
12.         Since prima facie,  commission  of  offences  under  the  Indian
Penal Code, are shown to  be  emerging  from  the  statements  of  witnesses
recorded (as is apparent  from  the  order  dated  6.4.2011  passed  by  the
Additional Chief Judicial Magistrate, Rosera), we are  satisfied,  that  the
impugned order dated 26.08.2013, passed by the High  Court  deserves  to  be
set aside. The same is accordingly hereby set aside.
13.         The accused are directed to appear before the  Additional  Chief
Judicial Magistrate, Rosera, in furtherance of  the  summoning  order  dated
6.4.2011 on 21.01.2016.
14.         Needless to mention, that observations recorded in  the  instant
order, shall not be treated as an expression of an opinion,  on  the  merits
of the controversy, one way or the other.
            The instant appeal is allowed in the aforesaid terms.


                                                       …..................J.
                                                      [JAGDISH SINGH KHEHAR]


NEW DELHI;                                            …...................J.
DECEMBER 01, 2015                                             [R. BANUMATHI]




ITEM NO.3               COURT NO.4               SECTION IIA

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

PETITIONS FOR SPECIAL LEAVE TO APPEAL (Criminal) No(s). 9944/2013

(from the judgment and order dated 26.08.2013 in Criminal Miscellaneous  No.
16254 of the HIGH COURT OF JUDICATURE AT PATNA)

MADAN RAZAK                                        Appellant(s)

                                VERSUS
STATE OF BIHAR & ORS                               Respondent(s)
(with office report)

Date : 01/12/2015 This petition was called on for hearing today.

CORAM :
         HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
         HON'BLE MRS. JUSTICE R. BANUMATHI


For Petitioner(s)      Mr. Pradeep Kumar Yadav, Adv.
                       Mr. Ashish Goel, Adv.
                       for Ms. Manju Jetley,AOR

For Respondent(s)      Mr. R. Sathish,Adv.
                       Mr. Mohandas K.K., Adv.

                       Mr. Shivam Singh, Adv.
                       for Mr. Gopal Singh,AOR

          UPON hearing the counsel the Court made the following
                             O R D E R

            Leave granted.

            The appeal is allowed  in  terms  of  the  Reportable  judgment,
which is placed on the file.

(Renuka Sadana)                        (Parveen Kr. Chawla)
 Court Master                                     AR-cum-PS