Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 645 (PAT)

Ramesh Yadav v. State Of Bihar

2003-07-02

ANIL KUMAR SINHA, B.K.JHA

body2003
Judgment ANIL KUMAR SINHA and BAL KRISHNA JHA JJ. 1. This appeal is directed against the order of conviction and sentence recorded by the IIIrd Additional Sessions Judge, Rohtas, in Sessions Trial No. 575 of 1997, whereby and whereunder. he convicted the appellants, namely, Ramesh Yadav and Mukha Yadva under Sections 364, 302/34 and 201/34 of the Indian Penal Code. The appellants were sentenced to undergo rigorous imprisonment for life under Section 302/34 of the Indian Penal Code, rigorous imprisonment for ten years under Section 364 and rigorous imprisonment for seven years under Section 201/34 of the Indian Penal Code. All the sentences were ordered to run concurrently. 2. The fardbayan of the informant, namely, Lalmuni Devi was recorded by the 1.0. on 10.12.1996 at her house. According to the fardbayan, the appellants had gone to the house of informant a month ago at about 9 p.m. and forcibly took away the informants husband, namely, Baban Kahar. When the informants husband did not return back for the whole night, the informant enquired from these appellants about the whereabouts of her husband on which the appellants gave assurance that he will come. The informant continued to ask the whereabouts of her husband from the appellants and they gave evasive reply. The informant stated that when the appellants took away her husband, she came to learn on the following day that they had also taken away Shiv Bhagat Yadav of her village and both remained traceless till the date of recording the fardbayan. The informant further learnt that these appellants had kidnapped a man of Dehri, who managed to escape from their clutches and the appellants suspected that the informants husband and Shiv Bhagat Yadav realised money from that abducted person and helped him in release from the custody of the appellants. It has, therefore, been suspected that the appellants took away the husband of the informant to kill him and possibly they might have committed his murder. On the basis of the fardbayan, a case under Section 364 of the Indian Penal Code was instituted against the appellants. Later on, Sections 302, 201/34 of the Indian Penal Code was added after the recovery of the dead bodies. On the basis of the fardbayan, a case under Section 364 of the Indian Penal Code was instituted against the appellants. Later on, Sections 302, 201/34 of the Indian Penal Code was added after the recovery of the dead bodies. After completing the investigation charge-sheet was submitted under Sections 364, 302, 201/34 of the Indian Penal Code and cognizance was taken under the aforesaid counts and the case was committed to the Court of Sessions. 3. The appellants denied the charges and their defence is that they are innocent and have falsely been implicated in the case after due deliberation. 4. In order to prove the charges, the prosecution examined as many as eleven witnesses out of whom PW 1 Shyam Sunder Ram, PW 2 Surendra Yadav, PW 3 Shiv Kumar Singh, PW 4 Hari Govind Rav?ni and PW 5 Satya Narain Singh have turned volte face by not supporting the prosecution case. 5. PW 1 Shyam Sunder Ram has stated in his cross-examination that the appellant Ramesh Yadav bears good character and the appellant Mukha Yadav practices as a doctor and he is also a man of good character. Similar statement has been made by PW 3 Shiv Kumar Singh Yadav, who is the brother of the deceased Sheo Bhagat Yadav in relationship and has testified that both the appellants are good people and they had no dispute with the deceased. PW 4 is the brother-in-law of Baban Kahar, the deceased. PW 5 Satya Narain Singh, who is none else but the son of the deceased Shiv Bhagat Yadav has deposed that he does not know how and under what circumstances his father was murdered. He has showed his complete ignorance as to how his father was killed although his own brother PW 9 Umesh Kumar Yadav has deposed that he had seen the appellant Mukha Yadav, who came with Rarnadhar Yadav and Nand Dubey in the field and took away his father and after one month his dead body was detected from hill-top. In his cross-examination PW 9 has stated that he made statement before the police that his father was kidnapped from the field and that he had seen his dead body. But, PW 11 Binay Kumar Singh, who is the l.O. of this case has denied that he made such statement before him. In his cross-examination PW 9 has stated that he made statement before the police that his father was kidnapped from the field and that he had seen his dead body. But, PW 11 Binay Kumar Singh, who is the l.O. of this case has denied that he made such statement before him. The l.O. has contradicted the statement made by PW 9 on the point of the alleged kidnapping made by the appellants. As such, it would appear that the evidence of PW 9 is not above doubts, more so, because his own brother has stated in clear words that he did not know as to who killed his father and under what circumstances he was killed and has not whispered a word that appellant Mukha Yadav alongwith others had kidnapped his father from the field. 6. PW 6 Lalan Kahar is the own brother of the deceased Baban Kahar, who has deposed that these appellants took away his brother from his house and after one month the aead body of his brother was detected from hill-top. This witness has admitted that he lives separately at village Fulwariya which is at the distance of 20 K.M. from village Lewra where the deceased Baban Kahar used to reside. It would, therefore, appear that he could not have seen the alleged kidnapping since he lives in a different place situated at a distance of 20 K.Ms. from the house of Baban Kahar. As such, this evidence on the point of kidnapping does not deserve to be relied upon. This witness has, however, admitted that Baban Kahar remained in jail for a period of 6-7 months but could not say what were the charges against him. This fact would go to show that the deceased Baban Kahar was a man of criminal antecedents. 7. PW 7 Lalmuni Devi, who is the informant of the case, has supported the prosecution case as stated in the fardbayan. She has admitted in her cross-examination that one Kameshwar Singh of Dehri had been kidnapped but was released. She further admitted that the brother of her Samdhi was in service of Kameshwar Singh, who used to deal in the business of oil. In the F.I.R., the informant has alleged that these appellants had kidnapped her husband and Shiv Bhagat Yadav because they had helped in releasing a man of Dehri who was kidnapped by the appellants. She further admitted that the brother of her Samdhi was in service of Kameshwar Singh, who used to deal in the business of oil. In the F.I.R., the informant has alleged that these appellants had kidnapped her husband and Shiv Bhagat Yadav because they had helped in releasing a man of Dehri who was kidnapped by the appellants. It would appear that she refers about Kameshwar Singh, who was kidnapped and was subsequently released. She has also admitted that these appellants had called a meeting in the village after four days of the kidnapping of her husband in which Sheo Pujan, Surendra, Rarnadhar and others had participated. She has not disclosed the purpose of calling the meeting. Nevertheless, this much is admitted by her that after the kidnapping of her husband these appellants had called a meeting in the village in which this informant had also participated alongwith the family members of Sheo Bhagat Yadav and other villagers. This is a very important circumstance which shows that if these appellants were the kidnappers of the informants husband, they would not have called such meeting. It can be presumed that such a meeting must have been called at the instance of the appellants to trace out the whereabouts of the informants husband. It is to be noted that the appellant Ramesh Yadav was a social man and he had fought the election of Assembly which has been admitted by the prosecution witnesses. It is also admitted by PW 7 that her husband was a man of criminal antecedents who remained in jail for six months in a case of kidnapping. 8. From the evidence of PW 7, it is manifest that she did not lodge any FIR till the recovery of the dead body of her husband which was actually detected after about a month. In other words, it would appear that after the kidnapping of her husband, the informant did not lodge any FIR or complaint before any body. In fact, some body informed the police when the dead body was detected at the hill-top and when the police went to the place of occurrence and met the informant, she gave her fardbayan for the first time. 9. PW 8 Brahamdeo Singh is a hearsay witness who has stated that after eight days he learnt that Baban Kahar has been kidnapped by these appellants. So. 9. PW 8 Brahamdeo Singh is a hearsay witness who has stated that after eight days he learnt that Baban Kahar has been kidnapped by these appellants. So. he enquired from Ramesh, who told that he will search out Baban Kahar and when this witness told him to inform the police, Ramesh stated that the Dy. S.P. is under him and he can disclose that Ramesh and Mukha had kidnapped Baban Kahar. All these statements appear to be concocted version and prima facie does not deserve to be relied upon. PW 8 has contradicted his own statement in his cross-examination by saying that he had not made any statement to the effect that Ramesh had told that Dy. S.P. is under him and has also admitted that he did not make statement before the police that he went with the brother of Baban Kahar to make enquiry from. Ramesh. This witness has admitted that he was also an accused in a murder case and he left his village and settled at village Lewra. The admitted position is that this witness has not seen the alleged kidnapping of the deceased. 10. PW 10 Pran Kahar is the son of deceased Baban Kahar, who has stated that these appellants took away his father forcibly and when his father did not return back, he alongwith his mother had gone to enquire about the whereabouts of his father from the appellants, who disclosed that his father had gone at the place of his relation and will return back. This witness has further stated that these appellants had kidnapped a man of Dehri who was kept in the watch of his father and Sheo Bhagat Yadav but any how the victim fled away, on account of which, the appellants became annoyed and committed the alleged occurrence of the present case. In cross-examination, however, he admitted that he had only heard about the kidnapping of the boy of Dehri and neither he had seen that boy nor saw his father watching him. He also admitted that he did not inform anybody in the village that these appellants took away his father. He did not inform at the police station or to the chaukidar of the village. He further admitted that there are several houses in the vicinity of his house. He also admitted that he did not inform anybody in the village that these appellants took away his father. He did not inform at the police station or to the chaukidar of the village. He further admitted that there are several houses in the vicinity of his house. He further admitted that he did not talk with these appellants which falsifies his evidence that he had made queries regarding the whereabouts of his father from the appellants. PW 10 has claimed that he witnessed the alleged kidnapping but PW 7 has stated that when the appellants came to her house, her son was sleeping inside the house which shows that PW 10 is not a reliable witness. 11. PW 11 Binay Kumar Singh is the I.O. of this case, who recorded the fardbayan (Exhibit-2) of the informant. He has stated that he had gone to village Lewra to assist the Officer Incharge of Dehri P.S. in the investigation of a case and after recording the fardbayan of the informant he took up the investigation in the case. He further stated that on 15.12.1996 he heard rumour that the dead body of the victim of the kidnapping case has been detected at the hill-top, so, he went there and found two dead bodies lying near Hanuman Nala. The dead bodies were identified by the family members of the deceased as belonging to Baban Kahar and Sheo Bhagat Yadav. He further stated that he prepared inquest report (Exhibit-5 and 5/1) and sent the dead body for post mortem examination to Sasaram but post mortem was not done at Sararam and the doctors of Sadar Hospital sent the dead bodies to Magadh Medical College where post mortem was done and he received the reports and thereafter he submitted charge-sheet against them. 12. In cross-examination, PW 11 has admitted that prior to the institution of the present case he had not received any information regarding the kidnapping of the deceased from the Chaukidar of the village. He also admitted that he did not verify the criminal history of both the deceased nor enquired about the friend and foes. He further admitted that Kameshwar Singh of Dehri had been kidnapped for which a case was instituted at Dehri P.S. but he did not record the statement of Kameshwar Singh. He also admitted that he did not verify the criminal history of both the deceased nor enquired about the friend and foes. He further admitted that Kameshwar Singh of Dehri had been kidnapped for which a case was instituted at Dehri P.S. but he did not record the statement of Kameshwar Singh. He had recorded the statement of Shakuntala daughter of Baban Kahar but she has not been examined in the case. He also did not record the statement of the man who had first detected the dead body at the hill-top and has admitted that no body gave any statement before him which may show that he had seen the deceased going on the hill-top for committing the murder of the deceased. He also did not take any photograph of the dead bodies. 13. Learned counsel appearing for the appellants strongly argued that the conviction of the appellants has been based on circumstantial evidence and in the case based on circumstantial evidence the facts established must be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, the circumstances should be of a conclusive nature and tendency and exclude every possible hypothesis except the one to be proved and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It was also submitted that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefit an accused, the accused is undoubtedly entitled to the benefit of doubt ( AIR 1984 SC 1622 ). Learned APP did not dispute above proposition of law. 14. Learned counsel submitted that the entire prosecution story is false and fabricated, inasmuch, as it is hard to believe that the informant will not institute any case or lodge complaint to any body including the Chaukidar, Mukhiya of the village regarding the alleged kidnapping of her husband by the appellants who remained traceless for a period of month. 14. Learned counsel submitted that the entire prosecution story is false and fabricated, inasmuch, as it is hard to believe that the informant will not institute any case or lodge complaint to any body including the Chaukidar, Mukhiya of the village regarding the alleged kidnapping of her husband by the appellants who remained traceless for a period of month. In the normal course of conduct if these appellants would have kidnapped the informants husband as alleged in the F.I.R., the informant must have gone to the house of the appellants oh the following day to enquire about her husband and if her husband would not have returned back home the next day, the informant must in all probability would have raised hue and cry and must have reported the matter at the police station. But, it is really astonishing that she neither informed the Chaukidar nor Mukhiya of the village nor reported the matter at the police station and kept mum for a period of one month and for the first time when the I.O. had gone to her village in connection of investigation of a different case of Dehri P.S., the informant complained about the alleged occurrence. It was, therefore, submitted that this circumstance alone throws sufficient doubt on the veracity of the prosecution case. It was also pointed out that the deceased persons were men of criminal antecedents and they were professional kidnappers which fact has been elicited from the evidence of the prosecution. The informant as well as other witnesses admitted the fact that the deceased Baban Kahar had gone to jail and remained in custody for more than a period of six months. So, it was submitted that the possibility can not be ruled out that the deceased might have been done to death by their rivals or persons inimical to them, and when the police went to the village, the informant falsely implicated the appellants, who are men of clean antecedents having good social status which fact has been admitted by the prosecution witnesses. 15. It was next contended that save and except the informant and her close relatives no independent witness of the village has come forward to support the prosecution case. 15. It was next contended that save and except the informant and her close relatives no independent witness of the village has come forward to support the prosecution case. It has come in the evidence that there are several houses in the vicinity of the informants house and several persons must have seen the appellants taking away the informants husband but no body has come forward to support the case of the prosecution. The villagers did not whisper about the alleged occurrence either to Chaukidar or any other village functionaries like Sarpanch or Mukhiya. Learned counsel submitted that during the period of one month many things can happen. So, in the absence of any direct evidence it cannot be held that the appellants committed the murder of the deceased. 16. Learned counsel then submitted that the prosecution deliberately withheld the post mortem report. PW 11 has admitted that the post mortem was done at Magadh Medical College Hospital and he had received the post mortem reports but the reports were not brought on the record. Learned counsel strongly argued that the post mortem reports of deceased was purposely withheld as that could have falsified the case of the prosecution. It was next submitted that dead bodies allegedly recovered at the hill- top had not been property identified and, as a matter of fact, it could not have been identified because after one month the dead body must have been fully decomposed and it was not possible for any body to identify the deceased. The witnesses who claimed to identify the dead bodies have nowhere stated that how theyidentified the dead bodies belonging to Baban Kahar and Sheo Bhagat Yadav. The police also did not seize the cloths of the deceased nor any witness has stated a word that he identified the dead body from their clothes. Admittedly, the I.0. had not taken any photograph of the dead bodies of the deceased. 17. In the circumstances as demonstrated by the learned counsel, we are also of the view that the prosecution had failed to prove beyond doubt the fact that the dead bodies recovered by the I.O. actually belonged to the deceased, namely, Baban Kahar and Sheo Bhagat Yadav, specially in view of the fact that the prosecution has deliberately suppressed the post mortem reports of the deceased. In absence of any medical evidence, we are unable to find out that what was the condition of the dead bodies at the time of the recovery and whether it was in identifiable condition or not and what was the cause of death in the opinion of the doctor who conducted the post mortem examination. In absence of such evidence not coming from the side of the prosecution, an adverse inference can be drawn against the prosecution. 18. After considering all the facts and circumstances of the case, we are of the definite view that the prosecution had not proved its case beyond all reasonable doubts. Thus, we are of the view that the order of conviction and sentence recorded by the learned Court below is not proper and justified. Accordingly, we set aside the impugned order of conviction and sentence as recorded by the Court below and hold the appellants not guilty to the respective charges levelled against them and acquit them of the same. 19. In the result, this appeal is allowed. The appellants, namely, 1. Ramesh Yadav and 2. Mukha Yadav, who are in jail are directed to be set at liberty forthwith, if not wanted in any other case.