Ram Deo Prasad vs State Of Bihar

2. The prosecution case is based on the statement of one Mohd. Kamruddin Mian made before Sub-Inspector, Birendra Kumar Pandey of Siwan Town P.S. on December 21, 2004 at 8:15 a.m. at the Sadar Hospital, Siwan. Mohd. Kamruddin stated that on the previous night after finishing their meal at about 8:30 p.m. his family had gone to sleep at his house in village Badka Gaon, P.S. Pachrukhi District Siwan. His four year old daughter Laila Khatoon was sleeping by the side of her grandmother on the outer verandah of the house and on the other side of the straw bed, the girl’s mother was sleeping with her infant child. In the middle of the night, the Informant who was sleeping in an inside room came out to relieve himself and found Laila Khatoon missing from the side of her grandmother. A search started for the girl and then his neighbour, Suman Kumar Sah (PW.2) told them that just a little while ago he had seen the appellant swiftly running away towards east, carrying a girl child in his arms who was crying. As informed by Suman Sah, he (the Informant) and the villagers assembled there proceeded towards east in search (of the child). After going for about a kilometer, they heard the sound of heavy foot-steps and on going in the direction of the sound they saw that the appellant, who was fleeing away with the child, flung the child in the wheat field (by the side of the pathway) and ran away. On going to the child, he found that it was his missing daughter. She was moaning and bleeding from her private parts. The informant further stated that he fully believed that the appellant after committing rape on her child was taking her away with the intent to kill her and to hide the body somewhere.

3. The statement was reduced to writing, as the fard-e-beyan (Exhibit 4) by Sub-Inspector, Birendra Kumar Pandey (PW.6) and was duly signed by the Informant and a witness, apart from the Sub-Inspector recording it. It was dispatched to Pachrukhi police station, within the jurisdiction of which the offence was committed, and there the recorded statement was incorporated in the formal FIR (Exhibit 1), registered as Pachrukhi P.S. case No.131/2004 dated December 21, 2004 under section 376 of the Penal Code.

5. On the following day (December 22, 2004) at 11:00 a.m. the Investigating Officer of the case (PW.4) went to the collector’s office (in Siwan town) for a meeting in connection with the preparations for the elections that were to be held shortly. There he was told by the officer in-charge of the Siwan Town P.S. that at 9.00 that morning the appellant was caught at the Siwan bus-stand and he was detained at the Town P.S. The Investigating Officer went to the Town P.S., prepared the arrest memo of the appellant and sent him for production before the Magistrate with the request to take him in judicial custody. The appellant was, thus, produced before the Magistrate on December 22, 2004 and as per the request of the Investigating Officer, was remanded to judicial custody.

7. In course of investigation, the Investigating Officer inspected two sites as “the place of occurrence”; one, the verandah of the Informant’s house from where the child was lifted and the other, the wheat field where the child was said to have been thrown by the appellant; nothing was found of any significance at either of two places. No attempt was made to find out the spot where the child was sexually abused and brutalized and where it might have been possible to find some blood or some other article that could have thrown any light on the identity of the offender. The “investigation” mainly consisted of recording the statements of witnesses under section 161 of the Code of Criminal Procedure and as it was completed charge-sheet was submitted on March 30, 2005, naming the appellant as the accused.

8. On the basis of the charge-sheet the appellant was put on trial before the 1st Additional Sessions Judge, Siwan.

29. The second witness Nasir Mian (PW.1) stated before the court that about two and a half years earlier, at about 12:00 in the night, Kamruddin got up and found that his daughter was missing from the side of his mother with whom she was sleeping. Kamruddin came to him and then there was an outcry that the child was missing. He, along with Kamruddin and other villagers started searching for the child. In course of the search they went to Suman Sah who told them that the appellant had gone towards east, in the direction of Ram Bachan Mishra’s orchard, carrying a child. They then went to Ram Bachan Mishra’s orchard and, lighting the torch there, they saw the appellant running away with a child. The appellant, on seeing them coming after him, flung the child in Ram Bachan Mishra’s wheat field. They ran after him but he succeeded in fleeing away. In the wheat field they found Kamruddin’s daughter who was about 4 years old. She was injured and was bleeding from her private parts. They brought the child to the Sadar Hospital, Siwan, where she passed away the following morning. The mouth of the child was filled with earth and she was also bleeding from her nose.

32. The third witness, Rukhsana Khatoon (PW.3), is the mother of the child. She stated that as the child was found missing and a search started, Suman Kumar Sah one of the neighbours informed that (he had seen) the appellant going away carrying a child. She then stated about the group of villagers going in search of and finding the girl whom the appellant had flung in the field. In the course of cross-examination, however, she said that she was also a part of the group which had gone in search of the child on the fateful night and her mother-in-law was also a part of that group.

31. On an overall scrutiny of the deposition of Nasir Mian we find that he remained quite firm and unshaken on his part of the story.

33. This is all the oral evidence adduced by the prosecution.

37. But the vital question is that of the sentence to which he should be liable.

43. We are very clear that the aforesaid facts and circumstances are also relevant factors to be taken into consideration while confirming the death penalty given to an accused.

47. In the overall of facts of the case and for the reasons discussed above we feel it quite unsafe to confirm the death sentence awarded to the appellant. Hence, while confirming his conviction under sections 376 and 302 of the Penal Code, we set aside the death sentence given to the appellant and substitute it by imprisonment for life that should not be less than actual imprisonment for a period of 18 years. The case of the appellant for any remission under the Code of Criminal Procedure may be considered only after he has served out 18 years of actual imprisonment.

48. In the result, the appeal is dismissed subject to the modification in sentence.

April 11, 2013