CRIMINAL APPEAL No.778 OF 2004
With
CRIMINAL APPEAL NO. 818 OF 2005
Against the judgment and order, dated 16.10.2004 passed by Shri Syed Md.
Nasimuddin, Ist Additional Sessions Judge, Hilsa, Nalanda in S. T. No.
376/1990.
Cr. Appeal No. 778 of 2004 :
Bechan Yadav, son of Late Rameshwar Yadav, village Baliapar, PS Karai Parsurai,
Dist. Nalanda.. Appellant.
Cr. Appeal No. 818 of 2004 :
1.
Bharik Yadav,
2. Ugan Yadav, both sons of Late Ramdeo Yadav,
3. Lalit Yadav, son of Late Mahabir Yadav,
4. Niranjan Yadav, son of Lalit Yadav, all of Bahepur, PS Karai, Dist.
Nalanda.. Appellants.
Vs.
The State of Bihar.
For the appellant in Cr. Appeal No. 778/2004 : Mr. Ranjan Kumar Jha, Mr.
Choudhary Prem Kumar Thakur and Mr. Abhishek Priyadarhsi, Advocates.
For the S t a t e : Mr. Satya Narain Prasad, A.P.P.
For the appellants in Cr. Appeal No. 818/2004 : Mr. Rajeev Kumar, Adv.
For the S t a t e : Mr. Rajendra Nath Jha, Addl. P.P.
P R E S E N T
HON’BLE JUSTICE SMT. SHEEMA ALI KHAN
S.A. Khan, J. These two appeals have been filed against the common
judgment and order passed by the Ist Addl. Sessions Judge, Hilsa, Nalanda
on 16.10.2004 by which the appellants have been convicted under section
364 of the Penal Code and sentenced to undergo rigorous imprisonment for
ten years.
The prosecution case is that on 15.2.1988, Tarkeshwari
Prasad, the informant along with his father Ram Lakhan Mahto aged about
seventy five years had gone to the Cooperative Bank at Hilsa to collect
some money. The Manager of the bank was not present and as such at
about 4 P.M. the informant along with his father went to Karai Bazar,
where they met some other persons of the village and thereafter they
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proceeded towards their village home Salempur. About a kilo meter from
their village near Pitraha Payen it is alleged that suddenly the appellants
and one Ramdeo Yadav (since deceased) armed with unlicensed arms
surrounded the informant’s father and abducted him. The informant and
one Mahendra Prasad Singh ran away from the place of occurrence in
opposite direction. The informant remained at the police station during the
night out of fear.
Seven prosecution witnesses have been examined in this case.
PW 1 claims to be eye witness. PWs 2 and 4 are the hear-say witnesses and
PW 3 is the informant. PWs 5, 6 and 7 are the Investigating officers of the
case. The case set up by the defence is that in fact no occurrence as alleged
took place. The appellants have been implicated in this case due to land
dispute and that Ram Lakhan Mahto has been hidden by his son in order to
implicate the appellants.
PW 1 Mahender Prasad met the informant at Karai Bazar and
he along with PW 3 were walking towards the village when the occurrence
is said to have taken place. Mahendra Prasad says that he was examined by
the investigating authority after 2½ months of the occurrence. This witness
claims that on seeing the occurrence he threw the vegetables etc. that he
had purchased at Karai Bazar and ran from the place of occurrence. The
appellants challenged the truthfulness of this witness on the ground that the
investigating officer has not noted that he found anything at the place of
occurrence when he visited the place of occurrence the very next day i.e. on
16.2.1988. It is further submitted that Mahender Prasad was in a different
village and he had no occasion to be acquainted with the appellants and as
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such the identification between 5.30 to 6.30 P.M. when it gets partly dark,
does not inspire confidence and is doubtful. This Court agrees with the
submissions made with respect to reliability of this witness.
The evidence of PWs 2 and 4 who are hear-say witnesses is
not of much help to the prosecution, which leaves this court with the
evidence of PW 3, the informant of the case. In fact the entire prosecution
case will have to be tested on consideration of the evidence of the
informant.
The reasons assigned for the occurrence have been disclosed
by the informant during the trial. It has been stated that there is a title suit
pending between Lakho Kuer who is sister of the kidnapped person Ram
Lakhan Mahto. It is said that Ram Lakhan Mahto had gifted some lands to
the sister and later she returned the lands by registered documents. Lakho
Kuer is said to have sold the lands to the appellants which is the reason
disclosed by the informant for the said occurrence.
During cross examination of the informant, the defence has
tried to show that the wife of Ram Lakhan Mahto does not dress like a
widow and used to put Sindur which indicates that Ram Lakhan Mahto was
alive. The informant denies that his father has been hidden or that he was
seen by other persons of the village at different places. All in all this
witness has stuck to the prosecution case as revealed in the FIR and stated
that his father was kidnapped by the appellants.
The informant’s evidence will now have to be tested with the
evidence of the three Investigating Officers.
PW 5 was the Investigating Officer who was at the police
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station when the informant came to give his fardbayan and the First
Information Report bears his signature. On 16.2.1988 PW 5 went to the
house of the two accused persons Ugan Yadav and Ramdeo Yadav and
arrested them from their house. Thereafter, he examined the ladies of the
house who had allegedly not given any statement to the effect that Ram
Lakhan Mahto was kidnapped. However, this part of the evidence is not
very important in view of the fact that when PW 5 visited the informant’s
house, he was accompanied by the informant who had remained away
during the night of 15/16.2.1988 and as such had no opportunity to
disclose that Ram Lakhan Mahto had been kidnapped. PW 5 has also
visited the place of occurrence and found nothing there to suggest that an
occurrence took place or that there was some struggle there.
PW 5 Jhulan Tiwary was asked to hand over the investigation
of the case to one Thakur Birendra Pratap Singh. The Investigating Officer
was also asked to explain at that time as to why he arrested Ugan Yadav
and Ramdeo Yadav on 16.2.1988 without there being sufficient evidence
regarding the occurrence. Nevertheless whether it was the prosecution or
the defence which was displeased by the Investigating Officer, he was
removed.
Therefore, I now come to the statement of PW 6 who took
over the charge of investigation on 16.2.1988. Since he took over charge,
an allegation was made against him by the informant that he was
demanding Rs. 2500/- as bribe and the informant filed Vigilance Case No.
32/1988 against this officer. As a result of that PW 6 was also asked to
hand over the charge of investigation to a third officer. In his cross
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examination he has stated that he was asked to release two accused persons
on bail by higher authorities. Subsequently he released them on police bail.
On 17.2.1988 he recorded in the case diary that he had got information that
Ram Lakhan Mahto had been seen in village Fatehpur. The Investigating
officer went to that village but he was not able to trace Ram Lakhan Mahto.
This Investigating Officer has also recorded that none of the witnesses are
willing to depose in favour of the appellants as they fear the informant. The
evidence of PW 6 also discloses the motive which has been attributed for
the occurrence and which has also been argued on behalf of the defence as
the motive for implication i.e. dispute with respect to 9 decimals of land.
The Investigating Officer at paragraph 13 has recorded that Rameshwr
Yadav disclosed to him that he had seen Ram Lakhan Mahto at Rajgir near
Silao bus stand whereas Ram Swaroop, a witness has also disclosed to him
that he has seen Ram Lakhan Mahto in the village on 25.6.1988 in the wee
hours of the morning. At paragraph 16 this witness further states that
Ramchandra Mahto, son of Ghanshyam had also reported that Ram Lakhan
Mahto was alive and was seen near the court premises.
The Superintendent of Police, Nalanda who has supervised
the case also held that the prosecution has not been able to establish that
Ram Lakhan Mahto had been kidnapped.
After the change of the Investigating Officer, PW 6, one
Surendra Kumar Singh, PW 7 was made the Investigating Officer of the
case. He took up the investigation of the case on 8.5.1989. PW 7 is said to
have examined nine witnesses in the case diary. All these witnesses have
stated that Ramdeo Yadav @ Nichla Bhagwan and his group are
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responsible for the kidnapping which had taken place. None of the witness
name the appellants. On the basis of the aforesaid evidence charge sheet
was submitted and cognizance taken and the case came up for trial.
Three defence witnesses have also been examined to
substantiate the case of the defence that Ram Lakhan Mahto is alive and
was seen at different places after the occurrence. DW 1 Amit Pd. Claims
that the kidnapped Ram Lakhan Mahto was seen near the Durga Chowk,
however, he has not been able to substantiate the claim by giving the date
and time or the year and as such the trial court has perhaps rightly
disbelieved his evidence. DW 2 claims to have seen Ram Lakhan Mahto
three to four months after the occurrence and DW 3 has claimed that he saw
him in the village in the early morning.
This court now has to examine the evidence of the informant
viz-a-viz the evidence of the Investigating Officers, PWs 5, 6 and 7.
Undoubtedly the informant is consistent in stating that his father was
kidnapped by the appellants on 15.2.1988. The defence version that he was
not kidnapped but was hidden is not very strongly borne out by the
evidence produced by him in court. All the Investigating officers on the
basis of the rumors and on information have come to the conclusion that
due to serious land dispute pending between the parties, the informant has
deliberately lodged the First Information Report in order to get the
appellants behind the bar as it would certainly help them in the title suit.
On the other hand, the defence version is that it is precisely
because of the land dispute that they have been made accused in this case.
It is on the basis of the evidence of PWs 1 and 3 that the appellants have
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been convicted in this case.
This court cannot have much faith on the evidence led by PW
1 as I find that there are some lacunae in his evidence which have been
discussed in the earlier paragraphs. However, as far as the evidence of PW
3 is concerned, it appears that his solitary evidence could have been
sufficient ground for conviction if it was corroborated in some detail by the
investigation that has taken place. The evidence of all the three
Investigating Officers is consistent to the extent they have said that there is
sufficient materials and reasons for the informant to implicate the
appellants. Even PW 7 on whom the informant had faith has not made out a
case that Ram Lakhan Mahto was kidnapped by the appellants. Not a single
witness of the village has come forward to support the prosecution version
and specially those who were examined by the Investigating Officers. This
court, therefore, finds that it would not proper to convict the appellants on
the basis of sole evidence of PW 3 and as such grants them the benefit of
doubt and acquits them of the charges levelled against them.
In the result, these two appeals are allowed and the appellants
are directed to be released on bail forthwith if not wanted in any other case
and they are discharged from the liabilities of their bail bonds.
Patna High court, (Sheema Ali Khan, J.) March 31, 2009, NAFR / Haque.