MADAN RAZAK Vs. STATE OF BIHAR & ORS
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
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