State Of Bihar And Ors vs Manindra Kumar

2. Pursuant to the statement of PW1 Roop Basant recorded by scribe Soran Lal at 12:45 p.m. on 24.02.2006, Crime No.23 was registered with Police Station Khurja Dehaat, Bulandshahar against the respondents. It was alleged that on that day Akash aged about 8 years, nephew of said PW1 was playing near Ambedkar Park. At about 10 a.m. respondent Subhadra took said Akash to her baithak, which was seen by villagers Mewa Ram and Vijay Pal. At that time three sons of said Subhadra, who along with Subhadra are respondents herein, were sitting in the Verandah. They went inside taking Akash along with them and did not come out for about half an hour. It was alleged that the respondents then came out with a “thaal” filled with articles of worship (pooja samagri) and went towards Chamunda Math for worship. Since Mewa Ram and Vijay Pal did not see Akash coming out, they suspected some foul play and soon after the respondents had left for Chamunda Math they went inside the baithak. As they entered, they saw dead body of Akash lying in a pool of blood with nostrils and ears cut. They raised hue and cry, which attracted number of villagers. When the villagers saw body of Akash, the situation took an ugly turn and there was complete chaos. The people then went to the Math and assaulted the respondents.

3. The police thereafter arrived in the village and Inquest Panchanama was conducted between 2:30 p.m. to 4:00 p.m. Around this time, the respondents were arrested at about 3:30 p.m. After the inquest, the body of Akash was sent for post mortem. PW7 Dr. Rajesh Kumar conducted post mortem at 4:30 p.m and found following ante mortem injuries on the body of said Akash :-

A braded contusions 5 cms X 3 cms present over left side of face 3 cms away from nose.

4. A contusion 4 cms X 3 cms present over left side of face 3 cms away from nose

It was found that there was bleeding from the mouth and nostrils. As per PW7 Dr. Rajesh Kumar, the cause of death was asphyxia resulting from throttling. The witness stated that injury Nos.1, 5, 6 and 7 were possible by a sharp cutting weapon.

While the respondents were arrested, on personal search of accused Sanjay, blood stained dharati or sickle was recovered. Since the respondents were found to be having injuries, they were referred to PW3 Dr. A. Kumar, who found seventeen injuries on the body of respondent Sanjay, one injury on the body of respondent Satveer and four injuries on the person of respondent Subhadra. The injuries were fresh and in the opinion of the witness were possibly received around 11:15 a.m. on the same day. Investigating Officer prepared Site plan Ext.Ka-15 according to which baithak in question was about 12’ x 12’ with one door and an adjoining verandah in front and the baithak was bounded by a boundary wall. He recovered blood stained earth from the baithak and blood stained cemented portion from Chamunda Math, which blood was later found to be of human origin.

After completing investigation, charge sheet was filed against the respondents and they were tried in the court of Additional Sessions Judge (Fast Track Court), Bulandshahar in Sessions Trial No.516 of 2006 for having committed the offences under Section 302 read with Section 34 IPC and Section 7 of Criminal Law Amendment Act. The prosecution in support of its case examined seven witnesses including two Doctors namely PWs3 and 7 and Informant Roop Basant as PW1. Mewa Ram was examined as PW2. In his testimony PW2 stated that on 21.02.2006 at about 10:00 a.m. while he was sitting in front of Ambedkar Park on a bench outside the clinic of a doctor along with Vijay Pal, he saw respondent Subhadra take Akash to the baithak by holding his arm, where respondents Satveer, Sanjay and Shishpal were already present. All the respondents then went inside along with Akash and did not come out for about half an hour. Thereafter the respondents came out with a “thaal” with “pooja samagri” and went towards Chamunda Math. Since Akash was nowhere to be seen, the witness and Vijay Pal suspected foul play. They immediately went inside the baithak and saw the dead body of Akash lying in a pool of blood. He further stated that in Chamunda Math he could see stains of blood on cemented portion and according to the witness the respondents were indulging in Tantrism. The witness stated that the injuries on the person of respondents were as a result of beating given by the villagers and that the respondents had thereafter fled away. In the cross examination of the witness nothing was suggested to the effect that said baithak was not of the ownership and control of the respondents.

15. In the circumstances and particularly when we are considering an appeal against acquittal, the interference in the present case would be justified and called for, only if we were to find the testimony of the sole witness of such character that it could be fully relied upon. In the present matter where the accused are being tried for an offence punishable with capital punishment, the scrutiny needs to be stricter. In our view the material on record definitely falls short and the respondents are entitled to benefit of doubt. We, therefore, affirm the view taken by the High Court and dismiss the state appeals. The appeal preferred by the Complainant is also dismissed.