Criminal Appeal (SJ) No.336 of 1998
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Against the judgment, dated 17.08.1998, passed by Shri Ravi Nath
Verma, Additional Sessions Judge, Vi, Chapra, in S. Tr. No. 267 of
1997
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Deo Rai, son of Bhagwan Rai, resident of village Bramhpur (Naya
Basti) P.s. Bhagwan Bazar, district Saran (Chapra)
.. Appellant
Versus
The State Of Bihar .. Respondent
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For the Appellant .. M/S Umesh Kumar Verma, Munna
Prasad Singh & Chandrashekhar
Sharma, Advs.
For the Respondent .. Mr. Sujit Kumar Singh, APP
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PRESENT
THE HON’BLE MR. JUSTICE GOPAL PRASAD
Gopal Prasad, J. Heard the counsel for the appellant and the State.
2. The appellant has been convicted under Section 364/34
of the Penal Code and sentenced to undergo rigorous imprisonment for
seven years.
3. The prosecution case as alleged in the fardbeyan by the
informant, Brahmdeo Mahto, P.W. 6, that on 08.09.1996 at 12.00 in the
noon ten persons armed with pistol and gun came on a boat. They
came to the darwaza of the informant and abducted Hardeo Mahto,
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younger brother of the informant, aged twenty years, at the point of
pistol. They threatened to kill if any one comes in the way. They
kidnapped his brother on the boat to the south. The informant and
others could not speak anything out of fear. The informant identified
amongst the miscreants Kamal Rai, Lal Babu Rai, Inder Rai,
Deonandan Rai, Sri Krishun Rai, Deo Rai and Jita Rai, four were
armed with country made pistol and the informant could not identified
three persons who were armed with gun. The, further, case is that co-
villagers Paras Mahto (not examined), Chandrika Mahto (P.W. 3),
Ramnandan Mahto (P.W. 2), Dhurva Mahto (P.W. 4), and the father of
the informant (not examined) saw the occurrence. Informant believed
that they have abducted the brother of the informant to kill, reported the
matter to police to take steps.
4. On the fardbeyan the first information report lodged and
after investigation the charge sheet submitted, cognizance taken and
case committed to the Court of sessions and after commitment the
charge was framed and trial proceeded.
5. During the trial eight persons were examined as
witnesses, who are P.W. 1 Lal Bahadur Mahto, P.W. 2, Ramnandan
Mahto, P.W. 3, Chandrika Mahto, P.W. 4 Dhruva Mahto, P.W. 5,
Urmila Devi, P.W. 6, Brahmdeo Mahto, P.W. 7, Raj Kumar Mahto and
P.W. 8, Shashi Shekhar Sharma, who is the investigating officer. P.W.
6 is the informant. The trial Court after considering the evidence of
P.W. 6, the informant, having supported the prosecution case along
with evidence of P.Ws. 1, 2, 3 and 5 and further considering the
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evidence of P.W. 7, who scribed the written report on the basis of
which first information report lodged and the evidence of investigating
officer, who has given a graphic description of the place of occurrence
and confirmed the area surrounded by water of river and, further,
taking into consideration the consideration of oral and documentary
evidence of the defence and convicted and sentenced the appellant, as
stated above.
6. The learned counsel for the appellant, however,
contended that five persons have been named by the informant as
witness in the fardbeyan out of which Paras Mahto and father of the
informant has not been examined as witness. It has, further, been
contended that all the persons who examined are members of same cast
and no person of other community has come to support the prosecution
case and placed reliance upon 1985 P.L.J.R., 341 (Prabhu Rai & Ors.
Vrs. The State of Bihar) and also suggested that motive and intention
has not been established and has placed reliance on A.I.R. 1940 Cal,
561 (Upendra Nath Ghose Vrs. Emperor). It has, further, been
contended that there are contradiction in the evidence of the witnesses.
It is, further, contended that P.W. 1 has stated that he has come to
depose at the information of the Advocate, P.W. 2 has stated that he
come to depose without notice, at the instance of Kailash and, hence,
the prosecution has not been able to prove it’s charge beyond
reasonable doubt.
7. The learned counsel for the State, however, contends
that motive is relevant with the case is for circumstantial evidence and
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when the evidence of the witnesses says are clearly inspire confidence
and, further, non-examination of the independent witnesses, which is
not rule of law that the evidence of interested or inimical witnesses are
to be rejected outright. The persons of other group normally does not
come to the Court and the contradiction pointed out are minor and not
go to the root of prosecution case to disbelieve the prosecution story.
8. Hence, under respective submissions, I perused the
records. P.W. 1 has supported the prosecution case and has specifically
mentioned that he identified seven persons out of ten. However, in
cross examination he stated that he has come to depose in the case on
the intimation send by the Advocate. P.W. 2 has also supported the
prosecution case and has named seven persons out of ten, who had
came and abducted and also identified Deo Rai. P.Ws. 3 and 4 are the
witnesses who were named in the first information report and have also
supported the prosecution case and they have also stated that they have
identified seven persons. P.W. 4 has also stated that his brother has
called him for giving the evidence. P.W. 5 is Urmila Devi, the wife of
the victim. He has also supported the prosecution case and stated that
out of ten persons seven came and kidnapped her husband and three
remained on the boat. P.W. 6 is the informant and he has also
supported the prosecution case and has stated that after abduction his
brother is traceless. P.Ws. 6 and 7 have also supported the prosecution
case. P.W. 8 is the investigating officer and has also supported the
prosecution case and stated that the place of occurrence is at a distance
of 500 yards from Naka no. 2 and this village Nawitola is the eastern
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tola and all the area is surrounded by the river,
9. Hence, taking into consideration the entire evidence
P.W. 6 has supported the prosecution case and there is allegation that
the accused persons came on boat and kidnapped. The investigating
officer has also stated that there is river water, hence, there is no road.
10. The defence has also adduced oral and documentary
evidence. D.W. 1 is the witness, who has formally proved the
fardbeyan and the said fardbeyan is with regard to the murder of
Subhash Rai and the witnesses have adduced that the appellant has
falsely been implicated.
11. However, the learned counsel for the appellant has
pointed out the various contradictions that though the prosecution case
in the fardbeyan that ten persons came on darwaza and kidnapped the
victim. However, P.W. 5 has stated that only seven persons got down
from the boat armed with pistol, but, three persons armed with gun
remained on boat. P.W. 1 has also stated that ten persons came and
kidnapped, but, Urmila Devi, P.W. 5, the wife of the victim has not
stated and has stated only seven persons came, hence, there is
contradiction. It has, further, been pointed out that some of the
witnesses have stated that Hardeo was dragged by the persons, some
has stated that he was lifted and some has stated that the accused
persons caught hold of him and took away and, hence, there is
contradiction in the evidence of the witnesses. However, the
contradiction pointed out is minor different, persons may describe the
same incident in different way, hence, discrepancies pointed out have
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got no significance as they do not go to the root of prosecution case. It
has, further, been pointed out that P.W. 1 has stated that he went to
depose at the instance of Advocate, P.W. 2 has stated that he went to
depose at the instance of Kailash, P.Ws. 3 and 4 stated that they went to
depose on the information of the informant’s brother. Hence, the main
contention is that without issuing notice they come to depose.
However, the fact remains that these persons have been named as
witnesses and their statement recorded by the investigating officer
during the investigating officer and, hence, merely, because they went
to the Court to depose on the information given by Advocate or
informant or some other has got no significant with to their testimony
and deposition in Court.
12. However, the learned counsel for the appellant has
placed reliance upon the decision reported in A.I.R. 1940 Cal, 561
(supra) and it has been stated that intention of the abduction has not
been proved, however, the case reported in A.I.R. 1940 Cal, 561
(supra) is a case of circumstantial evidence and in case of
circumstantial evidence the motive and intention becomes relevant,
however, in the facts and circumstances there is clear evidence that ten
persons came and abducted and took the victim and not returned till
date of the deposition of the informant witness.
13. The learned counsel for the appellant, however,
contends that none of the independent witnesses have been examined
and the reliance placed on decision reported in 1985 P.L.J.R., 341
(supra), however, the law is well settled and it is not the law that the
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evidence of the independent or interested witness to be outright
rejected, but, the law is well established that the witness are interested
and inimical then their evidence requires to be strictly scrutinize and if
on strict scrutiny their evidence are found to be reliable and trustworthy
then the conviction can be sustained. More over, in a case of
kidnapping or serious offence there is tendency that witnesses do not
like to depose in the case and, hence, the evidence of the witnesses can
not be rejected on this ground alone the witnesses are interested and no
independent witness has come to support the case. P.Ws. 2, 3 and 4
have come to support the prosecution case, however, non-examination
of one Paras Mahto and father of the informant, the evidence of P.Ws.
2, 3 and 4 can not be rejected, if their evidence found to be reliable and
trustworthy. However, the infirmity pointed out is the contradictions
that P.W. 1 has stated that ten persons are abducted whereas P.W. 5 has
stated that seven persons came and abducted and three remained on
boat. P.W. 5 has stated that Kishun Rai is 80-90 years old whereas
P.W. 6 has stated that Kishun Rai was 50 years old. However, every
one assess the age of a person differently, hence, it is not a mistake of
fact, but, it is a mistake of assessment about the age and, hence, the
infirmity pointed out that P.W. 5 stated that 10-12 persons of the
village came and P.W. 6 stated that 20-25 persons came. It was
pointed out that P.W. 6 deposed that person on boat were wearing dhoti
kurta and others were in pant whereas P.W. 5 stated that persons who
were on boat were wearing ganja, lungi and kurta and not in pyjama
kurta. However, the contractions pointed out are of minor in nature
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and does not go to the root of the prosecution case to state the
substratum of the prosecution story to disbelieve the prosecution case.
14. Hence, taking into consideration the entire evidence,
I find and hold that prosecution has able to prove the charges beyond
reasonable doubt and, hence, I do not find any merit in recording the
order of conviction and sentenced and, hence, the appeal is dismissed.
( Gopal Prasad, J. )
The Patna High Court,
The 12th day of August 2011,
N.A.F.R.,
S.A.