{"id":24187,"date":"2009-03-31T00:00:00","date_gmt":"2009-03-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bechan-yadav-vs-state-of-bihar-on-31-march-2009"},"modified":"2016-08-09T23:42:44","modified_gmt":"2016-08-09T18:12:44","slug":"bechan-yadav-vs-state-of-bihar-on-31-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bechan-yadav-vs-state-of-bihar-on-31-march-2009","title":{"rendered":"Bechan Yadav vs State Of Bihar on 31 March, 2009"},"content":{"rendered":"
Patna High Court<\/div>\n
Bechan Yadav vs State Of Bihar on 31 March, 2009<\/div>\n
Author: Smt. Sheema Khan<\/div>\n
                           CRIMINAL APPEAL No.778 OF 2004\n                                        With\n                          CRIMINAL APPEAL NO. 818 OF 2005\n\n\nAgainst the judgment and order, dated 16.10.2004 passed by Shri Syed Md.\nNasimuddin, Ist Additional Sessions Judge, Hilsa, Nalanda in S. T. No.\n376\/1990.\n\n\nCr. Appeal No. 778 of 2004 :\nBechan Yadav, son of Late Rameshwar Yadav, village Baliapar, PS Karai Parsurai,\nDist. Nalanda.. Appellant.\nCr. Appeal No. 818 of 2004 :\n   1.<\/pre>\n
 Bharik Yadav,\n<\/p>\n
   2. Ugan Yadav, both sons of Late Ramdeo Yadav,\n<\/p>\n
   3. Lalit Yadav, son of Late Mahabir Yadav,\n<\/p>\n
   4. Niranjan Yadav, son of Lalit Yadav, all of Bahepur, PS Karai, Dist.
\n      Nalanda.. Appellants.\n<\/p>\n
                                        Vs.\n<\/p>\n
                                The State of Bihar.\n<\/p>\n
  For the appellant in Cr. Appeal No. 778\/2004 : Mr. Ranjan Kumar Jha, Mr.
\n  Choudhary Prem Kumar Thakur and Mr. Abhishek Priyadarhsi, Advocates.
\n  For the S t a t e : Mr. Satya Narain Prasad, A.P.P.\n<\/p>\n
  For the appellants in Cr. Appeal No. 818\/2004 : Mr. Rajeev Kumar, Adv.
\n  For the S t a t e : Mr. Rajendra Nath Jha, Addl. P.P.\n<\/p>\n<\/p>\n
                                       P R E S E N T<\/p>\n
                         HON’BLE JUSTICE SMT. SHEEMA ALI KHAN<\/p>\n
      S.A. Khan, J.                These two appeals have been filed against the common<\/p>\n
                      judgment and order passed by the Ist Addl. Sessions Judge, Hilsa, Nalanda<\/p>\n
                      on 16.10.2004 by which the appellants have been convicted under section<\/p>\n
                      364 of the Penal Code and sentenced to undergo rigorous imprisonment for<\/p>\n
                      ten years.\n<\/p>\n
                                   The prosecution case is that on 15.2.1988, Tarkeshwari<\/p>\n
                      Prasad, the informant along with his father Ram Lakhan Mahto aged about<\/p>\n
                      seventy five years had gone to the Cooperative Bank at Hilsa to collect<\/p>\n
                      some money. The Manager of the bank was not present and as such at<\/p>\n
                      about 4 P.M. the informant along with his father went to Karai Bazar,<\/p>\n
                      where they met some other persons of the village and thereafter they
\n                        2<\/span><\/p>\n
proceeded towards their village home Salempur. About a kilo meter from<\/p>\n
their village near Pitraha Payen it is alleged that suddenly the appellants<\/p>\n
and one Ramdeo Yadav (since deceased) armed with unlicensed arms<\/p>\n
surrounded the informant’s father and abducted him. The informant and<\/p>\n
one Mahendra Prasad Singh ran away from the place of occurrence in<\/p>\n
opposite direction. The informant remained at the police station during the<\/p>\n
night out of fear.\n<\/p>\n
              Seven prosecution witnesses have been examined in this case.<\/p>\n
PW 1 claims to be eye witness. PWs 2 and 4 are the hear-say witnesses and<\/p>\n
PW 3 is the informant. PWs 5, 6 and 7 are the Investigating officers of the<\/p>\n
case. The case set up by the defence is that in fact no occurrence as alleged<\/p>\n
took place. The appellants have been implicated in this case due to land<\/p>\n
dispute and that Ram Lakhan Mahto has been hidden by his son in order to<\/p>\n
implicate the appellants.\n<\/p>\n
              PW 1 Mahender Prasad met the informant at Karai Bazar and<\/p>\n
he along with PW 3 were walking towards the village when the occurrence<\/p>\n
is said to have taken place. Mahendra Prasad says that he was examined by<\/p>\n
the investigating authority after 2\u00bd months of the occurrence. This witness<\/p>\n
claims that on seeing the occurrence he threw the vegetables etc. that he<\/p>\n
had purchased at Karai Bazar and ran from the place of occurrence. The<\/p>\n
appellants challenged the truthfulness of this witness on the ground that the<\/p>\n
investigating officer has not noted that he found anything at the place of<\/p>\n
occurrence when he visited the place of occurrence the very next day i.e. on<\/p>\n
16.2.1988. It is further submitted that Mahender Prasad was in a different<\/p>\n
village and he had no occasion to be acquainted with the appellants and as
\n                         3<\/span><\/p>\n
such the identification between 5.30 to 6.30 P.M. when it gets partly dark,<\/p>\n
does not inspire confidence and is doubtful. This Court agrees with the<\/p>\n
submissions made with respect to reliability of this witness.<\/p>\n
              The evidence of PWs 2 and 4 who are hear-say witnesses is<\/p>\n
not of much help to the prosecution, which leaves this court with the<\/p>\n
evidence of PW 3, the informant of the case. In fact the entire prosecution<\/p>\n
case will have to be tested on consideration of the evidence of the<\/p>\n
informant.\n<\/p>\n
              The reasons assigned for the occurrence have been disclosed<\/p>\n
by the informant during the trial. It has been stated that there is a title suit<\/p>\n
pending between Lakho Kuer who is sister of the kidnapped person Ram<\/p>\n
Lakhan Mahto. It is said that Ram Lakhan Mahto had gifted some lands to<\/p>\n
the sister and later she returned the lands by registered documents. Lakho<\/p>\n
Kuer is said to have sold the lands to the appellants which is the reason<\/p>\n
disclosed by the informant for the said occurrence.<\/p>\n
              During cross examination of the informant, the defence has<\/p>\n
tried to show that the wife of Ram Lakhan Mahto does not dress like a<\/p>\n
widow and used to put Sindur which indicates that Ram Lakhan Mahto was<\/p>\n
alive. The informant denies that his father has been hidden or that he was<\/p>\n
seen by other persons of the village at different places. All in all this<\/p>\n
witness has stuck to the prosecution case as revealed in the FIR and stated<\/p>\n
that his father was kidnapped by the appellants.\n<\/p>\n
              The informant’s evidence will now have to be tested with the<\/p>\n
evidence of the three Investigating Officers.\n<\/p>\n
              PW 5 was the Investigating Officer who was at the police
\n                        4<\/span><\/p>\n
station when the informant came to give his fardbayan and the First<\/p>\n
Information Report bears his signature. On 16.2.1988 PW 5 went to the<\/p>\n
house of the two accused persons Ugan Yadav and Ramdeo Yadav and<\/p>\n
arrested them from their house. Thereafter, he examined the ladies of the<\/p>\n
house who had allegedly not given any      statement to the effect that Ram<\/p>\n
Lakhan Mahto was kidnapped. However, this part of the evidence is not<\/p>\n
very important in view of the fact that when PW 5 visited the informant’s<\/p>\n
house, he was accompanied by the informant who had remained away<\/p>\n
during the night of 15\/16.2.1988 and as such        had no opportunity to<\/p>\n
disclose that Ram Lakhan Mahto had been kidnapped. PW 5 has also<\/p>\n
visited the place of occurrence and found nothing there to suggest that an<\/p>\n
occurrence took place or that there was some struggle there.<\/p>\n
             PW 5 Jhulan Tiwary was asked to hand over the investigation<\/p>\n
of the case to one Thakur Birendra Pratap Singh. The Investigating Officer<\/p>\n
was also asked to explain at that time as to why he arrested Ugan Yadav<\/p>\n
and Ramdeo Yadav on 16.2.1988 without there being sufficient evidence<\/p>\n
regarding the occurrence. Nevertheless whether it was the prosecution or<\/p>\n
the defence which was displeased by the Investigating Officer, he was<\/p>\n
removed.\n<\/p>\n
             Therefore, I now come to the statement of PW 6 who took<\/p>\n
over the charge of investigation on 16.2.1988. Since he took over charge,<\/p>\n
an allegation was made against him by the informant that he was<\/p>\n
demanding Rs. 2500\/- as bribe and the informant filed Vigilance Case No.<\/p>\n
32\/1988 against this officer. As a result of that PW 6 was also asked to<\/p>\n
hand over the charge of investigation to a third officer. In his cross
\n                        5<\/span><\/p>\n
examination he has stated that he was asked to release two accused persons<\/p>\n
on bail by higher authorities. Subsequently he released them on police bail.<\/p>\n
On 17.2.1988 he recorded in the case diary that he had got information that<\/p>\n
Ram Lakhan Mahto had been seen in village Fatehpur. The Investigating<\/p>\n
officer went to that village but he was not able to trace Ram Lakhan Mahto.<\/p>\n
This Investigating Officer has also recorded that none of the witnesses are<\/p>\n
willing to depose in favour of the appellants as they fear the informant. The<\/p>\n
evidence of PW 6 also discloses the motive which has been attributed for<\/p>\n
the occurrence and which has also been argued on behalf of the defence as<\/p>\n
the motive for implication i.e. dispute with respect to 9 decimals of land.<\/p>\n
The Investigating Officer at paragraph 13 has recorded that Rameshwr<\/p>\n
Yadav disclosed to him that he had seen Ram Lakhan Mahto at Rajgir near<\/p>\n
Silao bus stand whereas Ram Swaroop, a witness has also disclosed to him<\/p>\n
that he has seen Ram Lakhan Mahto in the village on 25.6.1988 in the wee<\/p>\n
hours of the morning. At paragraph 16 this witness further states that<\/p>\n
Ramchandra Mahto, son of Ghanshyam had also reported that Ram Lakhan<\/p>\n
Mahto was alive and was seen near the court premises.<\/p>\n
              The Superintendent of Police, Nalanda who has supervised<\/p>\n
the case also held that the prosecution has not been able to establish that<\/p>\n
Ram Lakhan Mahto had been kidnapped.\n<\/p>\n
              After the change of the Investigating Officer, PW 6, one<\/p>\n
Surendra Kumar Singh, PW 7 was made the Investigating Officer of the<\/p>\n
case. He took up the investigation of the case on 8.5.1989. PW 7 is said to<\/p>\n
have examined nine witnesses in the case diary. All these witnesses have<\/p>\n
stated that Ramdeo Yadav @ Nichla Bhagwan and his group are
\n                         6<\/span><\/p>\n
responsible for the kidnapping which had taken place. None of the witness<\/p>\n
name the appellants. On the basis of the aforesaid evidence charge sheet<\/p>\n
was submitted and cognizance taken and the case came up for trial.<\/p>\n
              Three defence witnesses have also been examined to<\/p>\n
substantiate the case of the defence that Ram Lakhan Mahto is alive and<\/p>\n
was seen at different places after the occurrence. DW 1 Amit Pd. Claims<\/p>\n
that the kidnapped Ram Lakhan Mahto was seen near the Durga Chowk,<\/p>\n
however, he has not been able to substantiate the claim by giving the date<\/p>\n
and time or the year and as such the trial court has perhaps rightly<\/p>\n
disbelieved his evidence. DW 2 claims to have seen Ram Lakhan Mahto<\/p>\n
three to four months after the occurrence and DW 3 has claimed that he saw<\/p>\n
him in the village in the early morning.\n<\/p>\n
              This court now has to examine the evidence of the informant<\/p>\n
viz-a-viz the evidence of the Investigating Officers, PWs 5, 6 and 7.<\/p>\n
Undoubtedly the informant is consistent in stating that his father was<\/p>\n
kidnapped by the appellants on 15.2.1988. The defence version that he was<\/p>\n
not kidnapped but was hidden is not very strongly borne out by the<\/p>\n
evidence produced by him in court. All the Investigating officers on the<\/p>\n
basis of the rumors and on information have come to the conclusion that<\/p>\n
due to serious land dispute pending between the parties, the informant has<\/p>\n
deliberately lodged the First Information Report in order to get the<\/p>\n
appellants behind the bar as it would certainly help them in the title suit.<\/p>\n
              On the other hand, the defence version is that it is precisely<\/p>\n
because of the land dispute that they have been made accused in this case.<\/p>\n
It is on the basis of the evidence of PWs 1 and 3 that the appellants have
\n                                             7<\/span><\/p>\n
                    been convicted in this case.\n<\/p>\n
                                  This court cannot have much faith on the evidence led by PW<\/p>\n
                    1 as I find that there are some lacunae in his evidence which have been<\/p>\n
                    discussed in the earlier paragraphs. However, as far as the evidence of PW<\/p>\n
                    3 is concerned, it appears that his solitary evidence could have been<\/p>\n
                    sufficient ground for conviction if it was corroborated in some detail by the<\/p>\n
                    investigation that has taken place.        The evidence of all the three<\/p>\n
                    Investigating Officers is consistent to the extent they have said that there is<\/p>\n
                    sufficient materials and reasons for the informant to implicate the<\/p>\n
                    appellants. Even PW 7 on whom the informant had faith has not made out a<\/p>\n
                    case that Ram Lakhan Mahto was kidnapped by the appellants. Not a single<\/p>\n
                    witness of the village has come forward to support the prosecution version<\/p>\n
                    and specially those who were examined by the Investigating Officers. This<\/p>\n
                    court, therefore, finds that it would not proper to convict the appellants on<\/p>\n
                    the basis of sole evidence of PW 3 and as such grants them the benefit of<\/p>\n
                    doubt and acquits them of the charges levelled against them.<\/p>\n
                                  In the result, these two appeals are allowed and the appellants<\/p>\n
                    are directed to be released on bail forthwith if not wanted in any other case<\/p>\n
                    and they are discharged from the liabilities of their bail bonds.<\/p>\n
Patna High court,                                       (Sheema Ali Khan, J.)\nMarch 31, 2009,\nNAFR \/ Haque.\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Bechan Yadav vs State Of Bihar on 31 March, 2009 Author: Smt. Sheema Khan 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-24187","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nBechan Yadav vs State Of Bihar on 31 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bechan-yadav-vs-state-of-bihar-on-31-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bechan Yadav vs State Of Bihar on 31 March, 2009 - 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