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2008 DIGILAW 398 (PAT)

Naresh Mahto v. State of Bihar

2008-02-25

body2008
S.K. SHARMA, J.:-Appellants have filed this appeal against the judgment of conviction and order dated 5.4.2004 and 7.4.2004 passed by the Additional Sessions Judge, F.T.C. No.1, Aurangabad in Sessions Trial No. 202 of 1993/330 of 2002 whereby the appellants have been found guilty for the offence committed under section 364 IPC and were sentenced to undergo Rigorous Imprisonment for 10 years. 2. The prosecution case has resulted on the basis of written report dated 19.10.1991 before the S.P., Aurangabad given by Kameshwar Yadav (PW 5) alleging therein that on 17.10.1991 at about 7 PM all the accused persons came upon the house of Bhuneshwar Yadav the informant's brother and caught hold of him. Later one Bhuneshwar Yadav was taken away by them. The informant and his wife (PW 2) failed to secure the release of Bhuneshwar Yadav. When the victim could not return then the matter was reported to the Superintendent of Police, Aurangabad on 19.10.1991 and on the direction of the S.P. the case was registered vide Deo P.S. Case No. 67 of 1991 under section 364 IPC. The matter was investigated into and after investigation the police submitted charge-sheet under section 364 IPC. Cognizance was taken and the case was committed to the Court of Sessions where the charge was explained to the accused persons after their appearance. They pleaded their innocence and preferred to face trial. 3. The defence of the accused persons was of false implication and also that the victim used to deal with seal and purchase of cattle and used to remain outside the locality. He was a man of criminal antecedent. He was also an accused under the Arms Act before the occurrence and he has illicit relation with a lady of same village and in fact, there was no kidnapping at all. 4. In order to prove the case the prosecution has examined altogether 7 witnesses. They are PW 1 Brahmdeo Yadav, PW 2 Raspatia Devi, PW 3 Ravi Prasad Yadav, PW 4 Radhe Paswan, PW 5 Kameshwar Yadav, PW 6 Baleshwar Paswan and PW 7 Saroj Kumar. PWs 6 and 7 are the formal witness. Formal FIR has been marked as Ext.-1 alongwith written report of information and case diary were marked as Ext.-2 and 2/1. Ext.-1 was proved by PW 6 whereas the case diary (Ext.-2) formally proved by PW 7. 5. PWs 6 and 7 are the formal witness. Formal FIR has been marked as Ext.-1 alongwith written report of information and case diary were marked as Ext.-2 and 2/1. Ext.-1 was proved by PW 6 whereas the case diary (Ext.-2) formally proved by PW 7. 5. The defence has exhibited certified copy of formal FIR of Hariharganj P.S. Case No. 3 of 1988 alongwith fardbeyan which have been marked as Exts.-A and A/a. Charge sheet has been marked as Ext.B. Complaint Case No. 556 of 1999 filed in the Court of C.J.M., Aurangabad under section 294 Cr.P.C. has been marked as Ext.-C. 6. The informant has deposed that on the eve of Dasahara his brother Bhuneshwar Yadav has come to his village. His brother was a dealer of goat. His brother has purchased some land from Suba Mahto but the accused persons were pressurizing his brother Bhuneshwar Yadav to prepare a deed of relinquishment. That was not being acceded too. The accused persons were chasing Bhuneshwar Yadav for that. On the date of occurrence i.e. 17.10.1991 at 7 PM all the appellants came to the house of Bhuneshwar Yadav, they were the members of unlawful assembly. When Bhuneshwar Yadav came out then his wife followed him. His younger brother Brahamdeo Yadav also came from his house. Accused persons nabbed Bhuneshwar Yadav. In that process he was caught hold by Balkishun Mahto and Saryu Mahto who were having Bhala in their hand. At that time Brijmohan was having small gun, rest were also having lathies in their hand. Bhuneshwar Yadav was taken away by them but he was not freed. When Bhuneshwar Yadav was failed to return then the matter was reported to Deo police station but the case was not registered. On the, next date the informant went to the Superintendent of Police, Aurangabad and gave him a typed petition regarding the occurrence. The typed petition was drafted by the Advocate Saryu Babu and was typed in Aurangabad. He has stated that it was the night when his brother came to his house on the date when the occurrence occurred. This witness has been cross-examined on every aspects of the occurrence but he consistently supported that the accused persons variously armed came and they in furtherance of their objects took away Bhuneshwar Yadav who never returned. 7. He has stated that it was the night when his brother came to his house on the date when the occurrence occurred. This witness has been cross-examined on every aspects of the occurrence but he consistently supported that the accused persons variously armed came and they in furtherance of their objects took away Bhuneshwar Yadav who never returned. 7. PW 5 has given the similar evidence that Bhuneshwar Yadav was taken away by the accused persons from his house. At that time he was caught by Balkishun and Saryu. Others also came but they could not secure the release of Bhuneshwar Yadav because the accused persons were having small gun and other arms. The motive behind the alleged occurrence was land of 5 Khathas purchased from Suba Mahto in the month of ASHAD for which the accused persons were pressurizing Bhuneshwar Yadav but he was not willing to part with the land. 8. Wife of the informant has been examined as PW2 who has given similar statement that accused persons came and took away Bhuneshwar Yadav who raised hulla and requested the accused persons to set him free but he was not let off rather he was taken away. She has stated that Bhuneshwar Yadav engaged in sell and purchase of goat and on the date of occurrence he has returned to his village. Evidence of this witness remained intact that accused persons came and they took away Bhuneshwar Yadav, thereafter, Bhuneshwar Yadav never returned. 9. PW 3 is not the eye witness to the occurrence. So he has not supported the factum of kidnapping. PW 4 is also not the eye witness rather he got information from Kameshwar Yadav. 10. Learned counsel for the appellants submitted that non-examination of the I.O. has caused great prejudice to the appellants because in absence of I.O. some major contradictions could not be pointed out. This has prejudiced the case of the appellants so the appellants should have been acquitted by the court below itself. 11. For proving the charge under section 364 IPC the prosecution is required to prove that a person was kidnapped and taken away. This has prejudiced the case of the appellants so the appellants should have been acquitted by the court below itself. 11. For proving the charge under section 364 IPC the prosecution is required to prove that a person was kidnapped and taken away. Though the defence has tried to find out that the alleged victim of kidnapping was a man of criminal antecedent but it has failed to bring anything on the record or it has not been able to prove such facts from any evidence so it is not required to be discussed. The onus is upon the prosecution to prove its case beyond all reasonable doubt and the defence can take the benefit when the prosecution fails to prove its case beyond all reasonable doubt. In this case the eye witnesses have supported the factum of kidnapping of Bhuneshwar Yadav who has not returned after the date of kidnapping. There is nothing on the evidence from which any inference could be drawn that the accused have been falsely implicated rather consistent evidence comes that the appellants have kidnapped the informant's younger brother Bhuneshwar Yadav. Therefore, I am of the view that the prosecution has been able to prove its case beyond all reasonable doubt and the impugned judgment of conviction and sentence is correct. 12. On the question of sentence it has been submitted that the appellants have been convicted and were sentenced to undergo R.I. for 10 years and this appeal was admitted on 9.6.2004 and the appellants were not released on bail. 13. On perusal of record it appears that the appellants were remained in jail during trial for quite longer time and this appeal was admitted on 9.6.2004 but they were -not released on bail, therefore, they remained in custody for four years after conviction. I am inclined to modify the sentence of the appellants. Accordingly, sentence of the appellants is modified to the extent that the period undergone by the appellants behind the bar during trial and appeal shall be deemed to be sufficient for the ends of justice. 14. In the result this appeal is dismissed with the modification in the sentence of the appellants. Appellants are directed to be released forthwith if not wanted in any other case.