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2008 DIGILAW 326 (PAT)

Ram Bilash Malakar v. State Of Bihar

2008-02-14

SHYAM KISHORE SHARMA

body2008
Judgment SHYAM KISHORE SHARMA, J. 1. Since both the appeals have arisen out a common judgment, they have been heard together and are being disposed of by this judgment. 2. These two appeals have been filed against the judgment of conviction and sentence dated 6.7.1993 passed by 12th Additional Sessions Judge, Munger in Sessions Case No. 23 of 1992 whereby both the appellants have been convicted and sentenced under Section 363/34 of the Indian Penal Code to undergo rigorous imprisonment for seven years. 3. The prosecution case is based on a written report (Ext. 2) of Indrajeet Singh. The said report was given on 6.9.1991 alleging therein that when at 3.00 pm he was going to his house for taking meal and had proceeded about 20 yards in the lane leading to his house in Punjabi Mohalla of Lakhisarai, he heard sound of cry of his son Sunny, who was returning from his school, towards west from the turning of the lane that he has been caught by van wala. The informant when turned towards that side, he saw that his son was caught by three persons and they put him in the van and thereafter van proceeded towards west. The informant noted the number of the van which was B.R.8C-4717. The informant followed the van raising alarm but in vain. Near the van, Bibha Devi, Bina Devi and Annapurna Devi of Punjabi Mohalla were standing and they were pointing out the kidnappers when they were taking away the van from which the informant gathered that the kidnapping was done at their instance. The motive of the alleged occurrence was that those ladies were his neighbours. Many persons used to visit their houses which was being protested by the informant and that resulted in frequent altercation with them. On the date of occurrence also, these three kidnappers were also taken meal in the house of those ladies which was witnessed by informants brother. The informant claimed that he as well as his family members would identify the kidnappers who were about 20-25 years of age. The written report of the informant resulted in Lakhisarai P.S. Case No. 256 of 1991 under Section 364/34 of the Indian Penal Code against the above three ladies, driver of the said vehicle No. BR 8C-4717 and three others. The written report of the informant resulted in Lakhisarai P.S. Case No. 256 of 1991 under Section 364/34 of the Indian Penal Code against the above three ladies, driver of the said vehicle No. BR 8C-4717 and three others. The matter was investigated into and in course of investigation, the victim Sunny was recovered from village Gaini, P.S.Goh, District Aurangabad on 9.9.1991 and a seizure list was prepared which has been marked Ext. 4 and after completion of investigation, charge-sheet was submitted against the seven accused. After cognizance, case was committed to the Court of sessions. The trial proceeded. Charge under Section 364/34 of the Indian Penal Code was framed and the same was explained to these two appellants and five others accused namely, Bina Devi, Bigan Singh, Annapurna Devi, Sunil Kumar Singh and Jitendra Pandey who have been acquitted by the trial Court. All the accused persons pleaded innocence and faced the trial. 4. In order to prove its case, the prosecution has examined altogether 7 witnesses. They are PW 1 Indrajeet Singh, informant of this case, PW 2 Pramjeet Singh, brother of the informant, PW 3 Daljeet Singh, another brother of the informant, PW 4 Sunny Kumar Chawla, the alleged victim, PW 5 Ganpat Mistri, a witness of seizure list Ext. 4, PW 6 Ram Bachan Singh, Investigating Officer and PW 7 Bidhan Chandra Chaudhary, Judicial Magistrate who had recorded the statement under Section 164 of the Code of Criminal Procedure of the alleged victim. 5. The defence of the accused persons was of false implication on account of enmity which has been admitted in the written report itself by the informant. 6. The written report was the basis of prosecution case which has been marked as Ext. 2. The formal FIR has been marked as Ext. 3. The seizure list is Ext. 4 and production list has been marked as Ext. 4/1. The statement of the alleged victim recorded under Section 164 of the Code of Criminal Procedure has been marked as Ext. 5. The signature of PW 1 Indrajeet Singh on the written report (Ext. 2) has been marked as Ext. 1, the signature of PW 4, the alleged victim Sunny, on his statement under Section 164 of the Code of Criminal Procedure has been marked as Ext. 1/1 and signatures of PW 5 Ganpat Mistri and one Sahdeo Modi on the seizure list (Ext. 2) has been marked as Ext. 1, the signature of PW 4, the alleged victim Sunny, on his statement under Section 164 of the Code of Criminal Procedure has been marked as Ext. 1/1 and signatures of PW 5 Ganpat Mistri and one Sahdeo Modi on the seizure list (Ext. 4) have been marked as Exts. 1/2 and 1/3 respectively. The endorsement made by PW 7 on Ext. 5 has been marked as Ext. 6. Neither any witness nor any document was produced on behalf of the defence. 7. The place of occurrence i.e. the place of alleged kidnapping is a road going towards West from the turning of that lane leading to Punjabi Mohalla of Lakhisarai. On this point, the informant PW 1 has been examined and he has stated that he had shown the place of occurrence to the Investigating Officer. PW 2 in paragraph 1 of his evidence has stated that the victim boy PW 4 was kidnapped in a van which was parked near the crossing of Gurudwara road. PW 3 has stated that the van was parked at a short distance from his house. PW 3 has further stated the van in question was parked near the house of Raghunandan Thlkedar. PW 4 has stated in his evidence that the van was parked near the house of Nandan Thikedar. This witness has further stated in his evidence that the van was parked near the house of Harinandan Thikedar and Pandit Kamal from where he was lifted by the kidnappers. PW 6, the Investigating Officer, has described the place of occurrence in his evidence and has stated that the place of occurrence is on Gurudwara road of Punjabi Mohalla of Lakhisarai which terminates to the Lakhisarai main road. This witness has further stated there is boundary wall of Raghunandan Thikedar by the side of place of occurrence road and at the end of that wall, there is turning of pitch road leading to Cold Storage. The road of place of occurrence leads from East to West and there was tyre mark of Maruti Van at that place. Therefore, there is consistent evidence with regard to the place of occurrence from where the kidnapping of PW 4 was made. 8. The road of place of occurrence leads from East to West and there was tyre mark of Maruti Van at that place. Therefore, there is consistent evidence with regard to the place of occurrence from where the kidnapping of PW 4 was made. 8. The informant PW 1 in his evidence has stated that on 6.9.1991 between 3 to 3.30 pm he was going to his house from his shop to take meal and when he reached near his house he heard cry of his son Sunny who was shouting for help. He saw that three persons were catching Sunny and putting him inside the Maruti Van of white colour bearing Registration No. BR 8C-4717. This witness stated that at the place of occurrence, three ladies of his mohalla were also there and they were pointing out towards Sunny to the kidnappers that this was Sunny and they were exhorting the kidnappers to lift the boy. This witness has stated that his son was recovered from village Gaini, district Aurangabad by the police. This witness identified accused Sudhir Kumar Singh in Court and stated that he was one of the kidnappers of Sunny. He also claimed to identify other kidnappers. 9. Another witness PW 2 has been examined by the prosecution as an eye-witness of the occurrence. According to him, on 6.9.1991 at 2.30 pm when he was taking meal in his house, he saw from the window that accused Bina Devi, Annapurna Devi and Bibha Devi were putting tilak to four youths in their courtyard whereafter they went away. This witness further stated that while returning to his shop when he reached at the place of occurrence at about 3.00 pm he saw that a Naruti Van of white colour bearing Registration No. BR 8C-4717 was parked there and three persons were sitting in the said van and one person was going ahead the van. This witness further stated that ladies three accused persons were also there moving towards West pointing out Sunny who was coming from East and said that this is Sunny lift him. Thereafter three accused persons who were sitting inside the van came out and catched Sunny and put him inside the van. This witness has identified appellant No. 1 Ram Bilash Malakar as driver of that van. 10. PW 3 is another eye-witness of the occurrence. Thereafter three accused persons who were sitting inside the van came out and catched Sunny and put him inside the van. This witness has identified appellant No. 1 Ram Bilash Malakar as driver of that van. 10. PW 3 is another eye-witness of the occurrence. According to him, when he was going to his shop at about 3.00 pm on 6.9.1991 after taking meal and had gone to a shot distance, he saw a Maruti Van parked near which ladies accused were standing and three person and one driver were in the van. At that time Sunny was returning from school and saw that the ladies accused persons pointed out to the persons sitting in the van that this is Sunny lift him on which those persons came out and caught the boy and put him inside the van. This witness also stated the number of the van. This witness also identified appellant No. 1 as the driver of the said van. 11. The alleged victim boy is PW 4. His age has been assessed to be of eight years by the learned Magistrate who recorded his statement under Section 164 of the Code of Criminal Procedure but in his evidence he told his age to be of 10 years. This witness in his evidence has stated that on 6.9.1991 at 3.00 pm he was coming from school to his house and when he reached near the house of Nandan Thikedar, he saw a Maruti Van of white colour parked there and the three ladies accused who have been named in the written report were standing there and he also saw three male members outside that van. This witness has further stated that the ladies accused were pointing out to the male accused towards him that this is Sunny, lift him. Thereafter, those persons lifted him and put him inside the van. The witness said that he cried for help but the accused persons escaped taking him in van speedily. In the next morning the persons who carried the victim escaped. Three days after, the victims father and police came. When the police came, the lady of the house told this witness to hide himself beneath the cot. This witness was recovered from beneath the cot by the police. In the next morning the persons who carried the victim escaped. Three days after, the victims father and police came. When the police came, the lady of the house told this witness to hide himself beneath the cot. This witness was recovered from beneath the cot by the police. This witness has further stated that while the accused persons were taking him away, they were saying that if they will receive Rs. 1,00,000/-then, they will release the boy, otherwise the boy will be killed on 15th of the month. The accused persons asked the boy, in the way, to call Parsuram, Sudhir and Gopal as chacha and thereafter boy started asking them as chacha. This witness identified appellant Sudhir Kumar Singh saying that this is the person who kidnapped him and also identified Ram Bilash Malakar saying that he was the driver of the van. After recovery, the statement of this witness under Section 164 of the Code of Criminal Procedure was recorded before the Magistrate upon which he has signed which has been marked as Ext. 5. 12. PW 5 is a witness to recovery of the victim who has stated in his evidence that he and one Sahdeo Modi had gone to village Gaini with PW 6 where a boy named Sunny aged 8 years was recovered from a house which was searched in his presence and seizure list was prepared upon which this witness and Sahdeo Modi put their signatures as witnesses. 13. PW 6 has stated that on 6.9.1991 he was officer-in-charge of Lakhisarai police station and a written report (Ext. 2) was submitted by informant PW 1 and thereafter a formal FIR was drawn and investigation was taken up. This witness has stated that he with armed force proceeded for Gaini and there he recovered the victim boy Sunny and thereafter a seizure list (Ext. 4) was prepared. The victim boy was brought to Lakhisarai and his statement under Section 164 of the Code of Criminal Procedure was recorded by a Judicial Magistrate. This witness stated that after completion of investigation, submitted charge-sheet. 14. PW 7 is the Judicial Magistrate who had recorded the statement of Sunny under Section 164 of the Code of Criminal Procedure. He proved the said statement which has been marked as Ext. 5. 15. This witness stated that after completion of investigation, submitted charge-sheet. 14. PW 7 is the Judicial Magistrate who had recorded the statement of Sunny under Section 164 of the Code of Criminal Procedure. He proved the said statement which has been marked as Ext. 5. 15. Learned counsel appearing for appellant Sudhir Kumar Singh has doubted the genuineness of the FIR saying that it is ante-dated. It has further been submitted that PWs 1, 2 and 3 were not the eye-witnesses of the occurrence and their evidence cannot be accepted as true because they have not taken any prompt steps towards prevention of kidnapping the boy as, according to them, the said occurrence occurred in their presence. Further submission is that it is incorrect that at 3.00 pm the informant had gone to his house to take meal. It is also submitted that no proof has been given about study of the boy in the school. The victim boy after recovery was not produced before the local Magistrate for recording his statement, rather he was brought from Aurangabad to Lakhisarai and thereafter he was produced before the Magistrate. In the meantine, the victim boy remained with his parents and he was tutored by them. Further submission is that no T.I. Parade was conducted in this case and non-holding of T.I. Parade is fatal to the prosecution. 16. Learned counsel appearing on behalf of appellant Ram Bilash Malakar has also taken the same plea as has been taken by learned counsel for appellant Sudhir Kumar Singh and it has been stated that if the evidences of the prosecution witnesses are accepted in its entirety, then it come that this appellant was only a driver and had nothing to-do with the happenings committed by the passengers of the Maruti Van. It has been further submitted by learned counsel for appellant Rant Bilash Malakar that PWs 2 and 3 are not the eye-witnesses of the occurrence and later on the informant told them about the occurrence. So these two witnesses have stated different versions at different stages. Further submission is that, according to prosecution case, the occurrence took place on 6.9.1991 at 3.00 pm but the FIR was received in the Court on 10.9.1991 though the police station is situated at nearby as stated by PW 6. So these two witnesses have stated different versions at different stages. Further submission is that, according to prosecution case, the occurrence took place on 6.9.1991 at 3.00 pm but the FIR was received in the Court on 10.9.1991 though the police station is situated at nearby as stated by PW 6. Thus, there is non-compliance of mandatory provision of Section 157 of the Code of Criminal Procedure which says that the FIR should be sent forthwith. 17. Learned counsel for the appellants has further submitted that the appellants were not put on test identification parade and as such, non-holding of T.I. Parade is fatal to the prosecution. 18. Non-holding of test identification parade shall not be fatal for the prosecution in all the cases. If a stranger witness makes identification of an accused in the Court, the Court by way of caution or prudence, seeks some assurance before accepting the identification as correct. If the identification has been proved by the victim and other witnesses in Court, then it can be said to be true and there cannot be any false implication of the accused because the prosecution has no intention at all to implicate them. Had the prosecution any intention to implicate these appellants, then it would have named the appellants in the written report itself. The recovery of the victim boy by the police is from a house of another district which is situated at a long distance from the place the alleged victim was kidnapped. 19. The evidence of PW 5 who is a seizure list witness and has signed on the seizure list goes to show that the alleged victim was recovered from a place of Aurangabad district and the recovery has been also proved. So far ante-dating the FIR is concerned, no doubt, the FIR was to be received soon after the occurrence but it is the duty of the police to forward the FIR to Court forthwith under Section 157 of the Code of Criminal Procedure. Section 157 of the Code of Criminal Procedure has been incorporated for the purpose to keep the Court informed of the investigation of such cognizable offence so as to enable it to control the investigation and if necessary, to give appropriate direction under Section 159 of the Code of Criminal Procedure. Section 157 of the Code of Criminal Procedure has been incorporated for the purpose to keep the Court informed of the investigation of such cognizable offence so as to enable it to control the investigation and if necessary, to give appropriate direction under Section 159 of the Code of Criminal Procedure. In case the FIR is recorded without delay and investigation started on the basis of that FIR and no other infirmity is found and prejudiced has been pointed out, then it cannot be argued that some delay has been caused. So, in my opinion, non-sending the written report of this case at an early time to the Court, cannot be said to be fatal to the prosecution. 20. Another submission is that no local witness, from where the victim was recovered, was produced by the prosecution. In this regard it is the common experience that the witnesses are feel shy in giving evidence against their own villager with whom they are living from before. The place of recovery of victim boy is far away from the place of occurrence. Generally, no independent person comes to the Court to depose against another with a view to keep oneself away from future quarrel. Therefore, non- examination of any witness from the village of recovery of victim boy is not fatal to the prosecution. 21. Learned counsel for the appellants has submitted that it has not been proved as to in which school the alleged victim boy was reading and was returning from the said school at the time of kidnapping. In absence of non-proving of the fact as to from which school the victim boy was returning, it cannot be held that the prosecution case has not been proved. 22. A number of witnesses were there and they all have stated that at the time of occurrence Sunny FW 4 was returning from school. This fact has been stated by all the witnesses starting from PWs 1 to 4 and in cross-examination their evidence have remained intact and nothing has been pointed out to these witnesses from which their credibility can be shaken on the point that PW 4 was not returning from the school at the time of kidnapping. 23. This fact has been stated by all the witnesses starting from PWs 1 to 4 and in cross-examination their evidence have remained intact and nothing has been pointed out to these witnesses from which their credibility can be shaken on the point that PW 4 was not returning from the school at the time of kidnapping. 23. After taking into consideration the entire evidences on record, I am of the view that the prosecution has been able to prove that PW 4 Sunny was kidnapped on the date, time and place, as stated in the written report, through the Maruti Van bearing registration No. BR 8C-4717 by appellant Sudhir Kumar Singh and at that time the Maruti Van was being driven by another appellant Ram Bilash Malakar. So the trial Court has rightly convicted these two appellants. Therefore, the conviction of these two appellants is maintained. 24. On the question of sentence, learned counsel appearing for appellant Ram Bilash Malakar (Cr. Appeal No. 202 of 1993) has submitted that as this appellant was only driving the Maruti Van and he has remained in custody during investigation and trial and also after conviction, so lenient view may be taken and if his sentence is reduced to the period already undergone by him, may be sufficient for the ends of justice. 25. On behalf of another appellant Sudhir Kumar Singh (Cr. Appeal No. 205 of 1993), similar submission has been made to take lenient view in the matter of sentence and it has been submitted that he was taken into custody on 24.10.1991 and was released by this Court in this appeal by order dated 16.11.1993. Further submission is that no previous conviction has been brought on record. It is also stated that at the time of occurrence, the appellant was below 19 years of age. As such, if the sentence of the appellant is reduced to the period already undergone by him may be sufficient for the ends of justice. 26. I am in full agreement with the submissions of the learned counsel appearing for both the appellants and if their sentence is reduced to the period already undergone by them will be sufficient for the ends of justice. Accordingly, the sentence of the appellants is reduced to the period already undergone by them. 27. In the result, both the appeals (Cr. Appeal Nos. Accordingly, the sentence of the appellants is reduced to the period already undergone by them. 27. In the result, both the appeals (Cr. Appeal Nos. 202 and 205 of 1993) are dismissed with modification in sentence.