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2007 DIGILAW 1084 (PAT)

Shyam Shankar Kunwar v. State of Bihar

2007-07-06

body2007
ORDER 1. This application under Section 482 of the Code of Criminal Procedure (in short as the Code) has been filed for quashing the order dated 31.10.2006 passed by learned Sessions Judge. Darbhanga in Cr. Revision No. 351 of 2006 confirming the order dated 28.6.2006 passed by learned Assistant Sessions Judge, Benipur in S. Tr. No. 307 of 1999 arising out of Bahera P.S. Case No. 170/98 whereby and whereunder petitioner's prayer for discharge has been rejected. 2. The prosecution case, in short, is that on 2.10.1998 informant/opposite party no. 2 Tribhuwan Kant Thakur filed written, report before the Officer Incharge of Bahera, Police Station alleging therein that his younger brother named Sushil Kant Thakur, opposite party no. 3, had gone to village Haripur on 1.10.1998 to see Mela on the occasion of Durga Puja and when he was returning back at about 9.00 PM on the motorcycle of Arun Kumar Thakur, accused Ram Binay Chaudhary detained the motorcycle, dragged him down, assaulted him and told him to ask his brother to compromise the case instituted against him and to pay the money spent by him in the case. On refusal the said accused kidnapped the informant's younger brother. It appears that the police after investigation submitted charge-sheet against one F.I.R. named accused Ram Binay Chaudhary and also against the petitioner Shyam Shankar Kunwar under Sections 341, 323 and 195 of the Indian Penal Code. Accordingly cognizance was taken and the case was committed to the Court of Sessions. It was transferred to Assistant Sessions Judge, Benipur for disposal according to law. Before the said court a petition was filed on behalf of the petitioner under section 227 of the Code for discharge which was rejected by order dated 28.6.2006. Against the said order Cr. Revision No. 351/06 was preferred before the Sessions Judge, Darbhanga who by order dated 31.10.2006 dismissed the revision and affirmed the order dated 28.6.2006. Against the said order dated 31.10.2006 the petitioner has preferred the present application for quashing before this Court. 3. It was submitted on behalf of the petitioner that he is not named in the F.I.R. During investigation, the petitioner has figured as prosecution witness. His statement has been recorded by the I.O. in which he has fully supported the prosecution case. 3. It was submitted on behalf of the petitioner that he is not named in the F.I.R. During investigation, the petitioner has figured as prosecution witness. His statement has been recorded by the I.O. in which he has fully supported the prosecution case. It was further submitted that the victim Sushil Kant Thakur was compelled by the police to give his statement under Section 164 of the Code before the court in which he has also named this petitioner as an accused but on the very next day the said victim Sushil Kant Thakur filed a petition on 21.10.1998 in the Court of Additional Chief Judicial Magistrate, Benipur for recording his re-statement under Section 164 of the Code on the ground that his earlier statement recorded under Section 164 of the Code on 20.10.1998 was under threat and coercion by the police and as such by order of the learned court below the statement of Sushil Kant Thakur was again recorded on 30.10.1998 under Section 164 of the Code in which he has clearly supported the prosecution case given in the F.I.R. and the statement further disclosed how he was under threat and coercion of the police force. It was then submitted that without there being any material against the petitioner in the case diary the police submitted charge-sheet against him. Learned counsel lastly pointed out that on the basis of materials collected in the case diary no offence against the petitioner is made out. 4. A counter affidavit has been filed on behalf of opposite party nos. 2 and 3 in which it has been said that if the petitioner is not discharged and allowed to adduce evidence as prosecution witness during the trial before the court below, entire prosecution case will fail and real culprit Ram Binay Chaudhary and his associates will be benefited. It has further been mentioned that there is no iota of evidence against the petitioner. 5. Thus the position is that the petitioner is not named in the F.I.R. During investigation he was examined as a prosecution witness and on perusal of paragraph-3 of the case diary it appears that he has fully supported the prosecution case. Then it appears from the xerox copy of the case diary that witnesses examined in paragraph nos. 7 and 11 of the case diary did not make any allegation against the petitioner. Then it appears from the xerox copy of the case diary that witnesses examined in paragraph nos. 7 and 11 of the case diary did not make any allegation against the petitioner. It further appears that the statement of the victim was recorded under Section 164 of the Code. The first statement under Section 164 of the Code was recorded on 20.10.1998 and his second statement was again recorded on 30.10.1998. In the second statement the victim has fully supported the prosecution case as mentioned in the F.I.R. and further disclosed how he was under threat and coercion of the police. 6. Thus the position is that except the statement of victim Sushil Kant Thakur recorded under Section 164 of the Code on 20.10.1998 there is nothing more against the petitioner in the case diary. The two statement given by the victim before the court under Section 164 of the Code give rise to some suspicion but not grave suspicion against the petitioner. It has to be remembered that the court cannot act merely as a post office or a mouth piece of the prosecution but has to consider the broad probability of the case, and the total effect of the evidence produced before the court to find out whether a prima facie case is made out against the accused. 7. In the aforesaid facts and circumstances the materials placed before the court, in my considered opinion, does not disclose the grave suspicion against the petitioner. No sufficient ground therefore, exists to proceed against the petitioner. 8. In the aforesaid situation, this application is allowed and both the two impugned orders as against the petitioner are hereby quashed.