Madan Razak vs State Of Bihar

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 Signature Not Verified Digitally signed by about 13/14 years, whose body was recovered, was not identified Parveen Kumar Chawla Date: 2015.12.09 17:22:46 IST Reason:

(and was referred to as – unknown girl, in the first information

report). The first information report also reveals, strangulation 2

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 3

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 4

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 5

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 6

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] 7

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