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2006 DIGILAW 803 (PAT)

Shiv Shankar Singh v. State Of Bihar

2006-09-04

ANWAR AHMAD

body2006
Judgment Anwar Ahmad, J. 1. All the six appeals have been directed against the judgment dated 19.8.2003 and order dated 22.8.2003 passed by Shri Uday Shankar, Ist Additional Sessions Judge, Madhepura, in Sessions Trial No. 76 of 2002 and Sessions Trial No. 76(A) of 2002 tried analogously and are being disposed of by this common judgment. 2. Appellant Subhash Kumar alias Subhash Mahto has been convicted for the offence under Section 364/34 of the Indian Penal Code (in short, IPC) and sentenced to undergo R.I. for 10 years with a fine of Rs. 10,000/- and in case of default of payment of fine to undergo further R.I. for 2 years. The appellants namely, Jitendra Singh alias Nepali, Sanjeev Kumar Singh alias Sanjeev Singh and Pankaj Singh have been convicted under Section 364-A/34 IPC and sentenced to undergo R.I. for 10 years with a fine of Rs. 5,000/- each and in case of default of payment of fine to undergo further R.I. for one year. The aforesaid four appellants have further been convicted under Section 120-B(1) IPC and sentenced to undergo R.I. for 10 years. Two appellants Munna Singh alias RamuSarkar and Shiv Shankar Singh have been convicted under Section 120-B(1) IPC and sentenced to undergo R.I. for 10 years with a fine of Rs. 5,000/- each and in case of default of payment of fine to undergo R.I. for a further period of one year. All the sentences, however, have been ordered to run concurrently. 3. Subhash Kumar son of Shiv Narayan Mahto of village Sinheshwar, Mandir Road, P.S. Sinheshwar in the district of Madhepura, gave a fardbeyan on 26.2.2001 at 1.35 p.m. alleging therein that he was a compounder-cum-driver of Maruti Car of Dr. Deep Narayan Choudhary of Sinheshwar. On that day at 10.00 a.m. he along with the said doctor was going to Saur Bazar on scooter No. BR 43-1296 driven by the said doctor and he was a pillion rider. After filling five litres of petrol near Madhepura Bus stand, they proceeded and after passing railway crossing of Mathahi reached near the west of canal where live persons on two motorcycles came there and asked to stop the scooter. The scooter was stopped and thereafter all the persons who were on the two motrocycles surrounded them from both sides. They assaulted him and the doctor by the but of pistols. The scooter was stopped and thereafter all the persons who were on the two motrocycles surrounded them from both sides. They assaulted him and the doctor by the but of pistols. They got the doctor sit over the motorcycle in between two riders. One of the miscreants sat over the back of the scooter and on the point of pistol they all proceeded towards Sabila Chowk. After going a short distance they turned towards left side in the southern direction of brick soled road. After crossing village Dhanchhuha near a lonely place informant was asked to stop his scooter and accordingly he stopped the scooter. The tyre of the scooter was got leaked and the miscreants went away with the motorcycle leaving the informants scooter. The informant changed the rear tyre by stepney and returned. He gave the present fardbeyan at Madhepura Police Station. On the basis of this fardbeyan a case under Sections 364 and 364-A/34 was registered against unknown. 4. During investigation confessional statement of the informant was recorded and he was made accused in this case. 5. Three charge-sheet have been submitted under Sections 364/120-B/34, IPC against all the six appellants. 6. The defence case is of simply denial and false implication. 7. All the six appellants faced trial together. After trial they have been convicted ans sentenced as stated above. 8. Being aggrieved by and dissatisfied with the judgment and order of the learned Ist Additional Sessions Judge, Madhepura, the present appeals have been filed for setting the said judgment and order and acquitting the appellants. 9. In order to prove the case altogether live witnesses in this case have been examined. Two witnesses have been examined as Court witness. No witness has been examined as defence witness. 10. PW 1 is Dr. Deep Narayan Chaud-hary. the victim. He supported the case of his kidnapping on 26.2.2001. He stated that he was got released by the police on 8.3.2001 from Bihariganj. He has not named any kidnapper. 11. PW 2 is Subhash Mahto. the informant who during the course of investigation was made accused in this case and he also faced trial. He wanted to give evidence in this case and the learned Additional Sessions Judge recorded his statement as a prosecution witness. The order sheet and the deposition did not show under what provision of the law learned Additional Sessions Judge recorded his statement. He wanted to give evidence in this case and the learned Additional Sessions Judge recorded his statement as a prosecution witness. The order sheet and the deposition did not show under what provision of the law learned Additional Sessions Judge recorded his statement. Under Section 315 of the Code of Criminal Procedure any accused shall be a competent witness for the defence and may give evidence and he will be examined on his own request in writing. Section 306 of the Code of Criminal Procedure relates to tender of pardon to accomplice. Under this section if the trial Magistrate tenders a pardon to an accused assigning reasons, then the accused can be examined as a prosecution witness. So, in my opinion, the examination of the appellant Subhash Mahto as prosecution witness No. 2 is not in accordance with the law and hence it is not taken into consideration. 12. PW 3 is Om Prakash Singh, PW 4 is Lalan Singh. Both these witnesses have turned hostile and did not at all support the case. 13. PW 5 is albinus Bara, SI of Police who is I.O. of this case. He has proved formal FIR (Ext. 2), fardbeyan (Ext. 3) and confessional statement of appellant Subhash Kumar made before the police (Ext. 4). 14. Two witnesses have been examined as Court witness. CW 1 is Arun Kumar. Officer Incharge of Chausa Police Station. He stated that he recorded the fardbeyan of the informant Subhash Kumar. He further stated that he recovered the victim Dr. Deep Narayan Chaudhary. CW 2 is Amit Kumar Singh alias Amar Kumar Singh alias Antim Kumar Singh. He stated that he did not know of the occurrence at all. 15. As discussed above. I find that none of the witnesses examined on behalf of the prosecution and the Court have named the appellants to have committed or participated in the commission of the offence. I also find that there is no evidence at all worth the name showing any complicity of the appellants in the offence. 16. As discussed above. I find and hold that there is merit in the appeal and the impugned judgment and order are fit to be set aside. 17. In the result, these appeals are allowed and the impugned judgment and order are set aside. The appellants are acquitted of the offence and set free. 16. As discussed above. I find and hold that there is merit in the appeal and the impugned judgment and order are fit to be set aside. 17. In the result, these appeals are allowed and the impugned judgment and order are set aside. The appellants are acquitted of the offence and set free. The appellant Pankaj Singh alias Pankaj Kumar Singh who is on bail is discharged from the liability of his bail bond. The learned Court below is directed to release the rest five appellants forthwith.