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2002 DIGILAW 217 (PAT)

Arun Kumar v. State Of Bihar

2002-02-13

S.N.PATHAK

body2002
Judgment S.N.Pathak, J. 1. This revision is directed against the judgment passed by the 5th Additional Sessions Judge. Samastipur, in Sessions Trial No. 111/ 88/16/99, whereby all the accused persons of the case, who are opposite party Nos. 2 to 7 of this revision, were acquitted. 2. The accused persons (opposite parties) had faced trial in the lower Court on the allegation of the informant that on 5.5.1986. he was abducted by the accused persons. Rs. 5,000/-and certain golden ornaments in his possession including wrist watch were snatched. He was also administered some obnoxious substance in the form of soft drink. So, the accused opposite parties were tried for the offences under Sections 342/34, 365/34 and 328/34, IPC. The alleged case originated on the fardbeyan of the informant Arun Kumar, that on 5.5.1986 he had come to his home town Samastipur on leave from Gorakhpur where he was posted in the Railway department. He went to the United Bank of India for depositing Rs. 5,000/-. but on the way he was met by three persons, namely, Ashok Yadav, Shibshankar Yadav and Umesh Yadav. When he was returning from the Bank and when he was taking lassi at a particular stall these three persons asked him to go to view a film in the Bhola Talkies. All the four entered the cinema hall, but in the interval the accused persons brought four bottles of cold drinks and one bottle was given to the informant, Arun Kumar. The accused persons also consumed the cold drinks. After half an hour Arun Kumar started feeling giddiness and. so. on this complaint all the three persons and the informant came out of the cinema hall. The accused persons made him seat in a matador maxi and sped away. On the way, the informant asked as to where he was being carried and then the accused persons replied that he was being taken to his home. On reaching N.H. 31, the informant on the pretext of having water came out of the window of the maxi and started running away. But he was chased arid overpowered by three accused persons who were accompanied by other persons also in the car including the brother-in-law of Ashok. On reaching N.H. 31, the informant on the pretext of having water came out of the window of the maxi and started running away. But he was chased arid overpowered by three accused persons who were accompanied by other persons also in the car including the brother-in-law of Ashok. He was brought back to the maxi and at the point of lethal weapons and fire arms, he was carried to unknown place, then to a house in which he was confined. When he regained some senses, he was given cold water and light was flashed on his face. Then he again fell unconscious. He regained his consciousness in the DMCH, Darbhanga, where he gave his fardbeyan. 3. The trial Court on the basis of several witnesses examined in court found the story of a row between the informants father for supply of certain articles including motor cycle etc. to be probable. Baraties had returned and the informant stayed at his sasural and subsequently when he returned, a false case has been filed. It was submitted before me that findings of the trial Court are vitiated and are visited with impropriety because instead of relying on the prosecution evidence, the trial Court relied more on the defence case. In this connection, of course, if the trial Court failed to discuss the evidence of witnesses and analyse it in order to come to a particular conclusion, the judgment could suffer from illegality and impropriety. The evidence of the prosecution cannot be disbelieved simply in the light of the defence evidence, but if the defence evidence has been considered regarding probability of false implication after the court came to the conclusion that the prosecution had failed to prove its case by the evidence on record, the judgment of the trial Court shall not suffer from any illegality. I find that the trial Court did discuss the evidence of the prosecution witnesses and held that they were not reliable and then in the light of the defence case, the trial Court held that the prosecution had failed to prove its case beyond all reasonable doubts. Of course, the judgment of the trial Court would have been a bit more elaborate, exhaustive and explicit. But unless the judgment suffers from any perverted or wrong decision on account of the aforesaid lacuna. Of course, the judgment of the trial Court would have been a bit more elaborate, exhaustive and explicit. But unless the judgment suffers from any perverted or wrong decision on account of the aforesaid lacuna. I do not think that this court will justifiably interfere because this would set an unhealthy precedent and trend, in so far as if the case is remanded to the lower Court, that would put unnecessary hardship upon the accused and keep them on tenterhooks on account of the further litigation, which may or may not end soon. So, it would be unwise for this Court to interfere with the judgment of the trial Court in revision unless the judgment is vitiated by illegality or perversity on the facts on record. Therefore, now I shall advert to the question whether the decisions and the findings of the trial Court on the basis of evidence is perverted or vitiated by an mis-application of legal principles. 4. I find that 20 witnesses were examined in the trial Court, out of which PWs 1 and 2 were formal. PW 3 was Ganga Rai. who said that he had seen the victim Arun Kumar in the company of Ashok, Shibshankar and Umesh going to the Bank. On the next day he informed the family members that Arun Kumar was lying unconscious at the darwaja of Kuldip Rai from where the injured was taken to the Railway hospital. This much is the evidence of this witness. So, he is a chance witness. PW 4 said that while he was taking tea at DRM Chawk at Samastipur, Arun Kumar came and he was carried to Bhola Talkies by Shibshankar, Ashok and Umesh. Thereafter, he knew nothing about the occurrence. PW 5 was tendered. PW 6 saw the victim being forcibly taken to the matador maxi from where he was sped away. He identified Umesh among the persons who took away the informant in the Maxi. PW 7 said only this much that at the tea stall some persons came, took water and went away along with the informant. He was declared hostile. PW 8 also gave the similar statement and he was also declared hostile. PW 9 was a person who was also viewing film and he said this much that some persons gave Arun Kumar, the victim, soft drink and then went out during the interval. He was declared hostile. PW 8 also gave the similar statement and he was also declared hostile. PW 9 was a person who was also viewing film and he said this much that some persons gave Arun Kumar, the victim, soft drink and then went out during the interval. Next day he learnt that the victim was carried to the railway hospital. PW 10 was the father of the victim. He said that on 5.5.1986 his son had gone to the United Bank. He did not return. At 4 PM. he was informed by one Brahmanand that from the cinema hall he is son was taken away by Umesh, Ashok and Shibshankar. So, this witness went to the houses of these persons on he next morning and enquired from them about his son but they gave no satisfactory reply. Then he was informed by one Raj Kumari that Arun was lying unconscious at her darwaja. Then he went there and took his son to railway hospital. On 13.5.1986 his son was carried to DMCH, Darbhanga. He was unconscious and when he regained his senses on 15.5.1986 his fardbeyan was recorded by the police. PW 11 was tendered. PW 12 was the brother of the informant and his evidence is similar to the statement of PW 10. PW 13 was the informant himself. His evidence is that he could not deposit the amount into the Bank because his pass book was missing and the Manager told him that he will take deposit of the aforesaid amount after a new pass book is issued. So, when he came back to the tea stall and when he was taking lassi. the three accused persons, namely. Umesh. Ashok and Shibshankar accosted him and asked him to go the the cinema hall. During interval, he was offered soft drink and when he consumed it. he felt giddiness and thereafter he was carried to matador maxi from where he was carried to the house where he was made unconscious. When he was being taken to unknown place he was made to smell something foul through cloth piece which made him unconscious. Thereafter, his evidence is that he regained consciousness in the DMCH where he gave his Jardbeyan to the police. PW 14 was the doctor of DMCH whose evidence is that Arun Kumar was referred to his hospital for suspected poisoning. Thereafter, his evidence is that he regained consciousness in the DMCH where he gave his Jardbeyan to the police. PW 14 was the doctor of DMCH whose evidence is that Arun Kumar was referred to his hospital for suspected poisoning. PW 15 was a doctor of the Railway hospital and he simply said that he had referred Arun Kumar to DMCH PW 16 was a formal witness. PW 17 was an officer of the Bank who received Rs. 3/- from Arun Kumar for issuance of a fresh pass book. PW 18 was a railway employee who spoke about the CL having been taken by arun Kumar. PW 19 was a formal witness and PW 20 recorded fardbeyan of the informant. 5. The above resume of the evidence shows that on the record there was only the evidence of some witnesses that they had seen the victim Arun Kumar in the company of accused persons and he was taken away forcibly into a matador maxi. All the witnesses who had seen the victim in the company of the accused persons were chance witnesses. So far the evidence of the alleged forced abduction and the evidence of administering poisonous substance to the informant, that is contained in the testimony of the informant himself. The doctors who had examined the victim failed to prove that the victim had consumed poison. The doctor of railway hospital failed to support the fact that Arun Kumar had consumed any poisonous substance and that he was treated for poisoning when he was first taken to this hospital for treatment. So. vomited materials were sent to the chemical expert, but on the record there was no report of the chemical expert to substantiate the allegation of administration of poisonous or obnoxious substance to the informant. So the charge under Section 328. IPC was found to be not proved. So far the charges under Sections 365 and 342 are concerned, it was alleged that the accused persons had kidnapped Arun Kumar for money and for looting of his personal belongings, but the police did not submit any charge-sheet under Section 379, IPC nor he was tried for the aforesaid offence. Allegation that arun Kumar had gone to the Bank for depositing money of Rs. Allegation that arun Kumar had gone to the Bank for depositing money of Rs. 5.000/-, is also not borne out by the circumstances of the record, because if his pass book was missing, it is not understandable as to why he carried Rs. 5,000/- to the Bank for its deposit. Moreover, a deposit can be made into the Bank even without pass book if account of a particular person is maintained in the Bank at the relevant time. So, the plea of coming to the Bank for deposit of Rs. 5.000/- was totally unbelievable. So far the allegation of depriving Arun Kumar of his wrist watch etc. that was also not substantiated on the basis of evidence on record because no other witness spoke of snatching of his personal belongings nor anything was recovered from the possession of the accused nor the accused were tried for an offence of snatching etc. Now the question is what could be the probable motive for the accused to abduct the victim and to confine him into a house. In this connection, the evidence of informants father further gains significance. His evidence is that when his son did not return on 5.5.1986. he became anxious, but on that day he did not made any search for his son nor intimated the police. Even on the next day when he came to know about his son lying at the darwaja of Kuldip Rai in an unconscious state and having been seen in the company of the three accused persons, it was naturally expected of this informants father to smell foul play and to intimate the police: but there was no step taken in this direction by him. Moreover, when the informant was taken to the railway hospital for treatment some evidence from this railway hospital regarding the treatment actually given to the informant should have come; but there is no evidence as it has been seen above. The doctor of DMCH also failed to support the fact that Arun Kumar was actually treated for suspected poisoning. In view of the aforesaid circumstances and the evidence on record, it was quite natural for the trial Court to nurse suspicion regarding the veracity of the prosecution case and truthfulness of the prosecution evidence. This doubt naturally crept in the evidence. In view of the aforesaid circumstances and the evidence on record, it was quite natural for the trial Court to nurse suspicion regarding the veracity of the prosecution case and truthfulness of the prosecution evidence. This doubt naturally crept in the evidence. It was also once again natural for the trial Court to consider the defence of the accused which was to the effect that on 5.5.1986 the daughter of Munna Gope was married to the informant. The father of the informant was insisting for supply of certain articles before performance of marital ceremony. Subsequently, at the persuasion of the well wishers, the marriage was performed; but baraties had returned being annoyed with the non-supply of articles demanded by the informants father. Subsequently, when the informant returned from the sasural a false case was lodged. The accused is not at all required to prove his case rather it is sufficient if he raises the probabilities of his case. The trial Court had simply held like that and it has not said that the defence case was proved. In the circumstances as stated above, if the trial Court gave the benefit of doubt to the accused persons. I do not think that he committed any illegality in reaching the above conclusion. Simply because a different view can be taken by this court on the evidence on record, this Court cannot interfere in a revision and. moreover. I do not think that a different view other than the trial Courts view can be taken in the light of the circumstances and the evidence on record. 6. An order of conviction cannot be recorded simply because the prosecution produces a number of witnesses and weaves out a grand or falacious story about an alleged occurrence and wants the accused to be punished for the alleged offence. The prosecution must prove its case beyond all reasonable doubts on the basis of reliable and unimpeachable evidence. There was no such evidence on the record of this case. 7. In the result, this revision is dismissed.