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2008 DIGILAW 622 (PAT)

Janardan Singh v. State Of Bihar

2008-04-18

CHANDRA MOHAN PRASAD

body2008
Judgment CHANDRA MOHAN PRASAD, J. 1. This appeal is against the judgment dated 27th June 2003 of the 1st Additional Sessions Judge, Nawadah passed in Sessions Trial No. 198 of 1988/20 of 1992 whereby the appellant has been convicted under Section 364 of the Indian Penal Code and sentenced to Rigorous Imprisonment for seven years. 2. It is relevant to mention here that besides the appellant, two other accused, namely, Ramashish Singh and Shaket Bihari @ Sanjay Kumar were also charge-sheeted and put on trial but Ramashish Singh died during trial and Shaket Bihari @ Sanjay Kumar has been acquitted by the trial Court under the same judgment. 3. The informant Rajendra Prasad Yadav (PW 2) lodged the FIR (Ext-1) on 7th December 1985 by giving his written report (Ext-2) of the same date wherein he alleged that on 4th December 1985 at 6.00 p.m. while he was sitting in his quarter in Mohalla Malgodam along with Suresh Prasad (PW 5), Sahdeo Yadav (PW 4), Yugal Yadav (PW 3), Ramadhin Prasad Yadav (not examined) and his brother Awadhesh Kumar (victim), Janardan Singh (appellant), Ramashish (who died during trial) and Shaket Bihari Singh (acquitted by the trial Court) came there and called his brother Awadhesh Kumar saying that they had some urgent work at their residence at new area. Then he (informant) further alleged that he remained sitting and kept on waiting for return of his brother (victim) but he did not come back. The informant further stated that his brother had to appear at the B.Sc. Examination on 6th December, 1985 and when he did not come to attend the Examination, he (informant) went to Janardan Singhs residence where other two accused (Ramashish Singh and Shaket Bihari) were also present and they all abused him (informant) and drove him away, whereupon, he (informant) got suspicion that they might have killed and disposed of the dead body of his brother. The informant further alleged that he also searched his brother (victim) at several places, including the residence of his relatives but he (victim) was not traced, hence, he (informant) came to the police station on 7th December 1985 and lodged FIR. The investigation commenced on the basis of FIR and on completion of the same, charge-sheet was submitted against the appellant and two others. The investigation commenced on the basis of FIR and on completion of the same, charge-sheet was submitted against the appellant and two others. Thereafter accused persons were put on trial and by the impugned judgment, the appellant has been convicted and sentenced, as above. 4. As many as five witnesses were examined by the prosecution. PW 1 Ashok Kumar Nirala is a formal witness who proved the writings and signature on the FIR (Ext.-1). 5. PW 2 Rajendra Prasad deposed in his evidence that on 4th December 1985 at 6.00 p.m. while he was sitting at the place of his brother Awadhesh Kumar (victim), Janardan Singh (appellant), Shaket Bihari and Ramashish came there and they called his brother saying that they had some urgent working with him and they took his brother with them. When his brother did not come back till late night, he searched for his brother but he could not be found. He further deposed that his brother was to appear in the Examination on 6th December 1985 but he did not appear in the Examination nor he was found anywhere, then he (informant) went to the residence of Janardan Singh (appellant) and asked about his brother (victim) whereupon Jananrdan Singh abused him and also chased to assault him saying that he (appellant) had not taken the responsibility of his (informants) brother and that due to this, he (informant) came to believe that he (appellant) had abducted and killed his brother. At para 5 of his cross-examination, he further deposed that his brother lived along with his 2-4 friends in a building and that the house owner was also living in the said building. At para 4 he also deposed that his brother had no kind of concern or dealing with the accused- appellant, however, he further deposed that some days ago, the accused persons had beaten his brother and had snatched his wrist watch and they had also threatened to kill him and that his brother had also filed a petition before the Sub-Divisional Officer in this connection. Any such petition has not brought on record. 6. At para 9 of his evidence, the informant deposed that on the date of occurrence he had searched for his brother on the road in the locality and he had also gone to the residence of the appellant. Any such petition has not brought on record. 6. At para 9 of his evidence, the informant deposed that on the date of occurrence he had searched for his brother on the road in the locality and he had also gone to the residence of the appellant. At para 10 he further deposed that on 5th December 1985 i.e., the next day he had gone to the residence of the appellant and had found that the door was closed but it was not locked from out side. He also deposed that on 5th December 1985, he did not feel it proper to inform the police about the occurrence. At para 12, the informant further deposed that on 6th December, 1985 he searched for his brother in the college where he was to appear in the Examination but he could not be found there. He has denied the defence suggestion that his brother (victim) used to be in the company of criminals and that when his brother did not appear in the Examination on 6th, he implicated the appellant with false allegations. 7. PW 3 Yugal Yadav has simply deposed that in the year 1985 one evening at 6.00 p.m. while he (PW 3) along with Awadhesh Kumar (victim) and his 2-3 other friends was in a room, 4-5 persons came there and they called Awadhesh Kumar and took him with them. He has not stated to have identified any of those 4-5 persons. On his attention being drawn by the learned APP towards previous police statement, he has denied that he had stated before police that the appellant had taken Awadhesh with him. This witness however, does not say that the informant was also present in the room while Awadhesh was taken away by some persons. 8. PW 4 Sahdeo Bhagat deposed that on 4th December 1985 at 6.00 p.m. Janardan Singh and two other unknown had called Awadhesh (victim) and had taken him with them but at para 2 of his cross-examination, this witness deposed that at that time, he (PW 4) was sitting at his residence. This witness has not stated that he was present at the place from where Awadhesh was called and taken away rather he (PW 3) says that he was sitting at his residence at that time. This witness has not stated that he was present at the place from where Awadhesh was called and taken away rather he (PW 3) says that he was sitting at his residence at that time. In such view of the matter, the presence of this witness at the place from where Awadhesh was called and taken away becomes doubtful. 9. PW 5 Suresh Prasad Yadav mentions in his evidence altogether a different date of occurrence and he deposed that on 1st April 1985 while he was at his residence at Mohalla Malgodam along with his friends Sahdeo Yadav, Awadhesh Kumar (victim), Yugal Yadav and others, the appellant came there and called Awadhesh saying that he had urgent work with him and he took Awadhesh away with him. He further deposed that he and others searched for Awadhesh for the whole night but he could not be traced. At para 3 of his cross-examination, he deposed that he had never seen any kind of quarrel or dispute between the victim and the appellant. He also stated that Awadhesh (victim) was aged about 25-26 years. This witness says about the occurrence but he materially contradicts the prosecution story about the date of occurrence, inasmuch as this witness says about the occurrence which had taken place on 1st April 1985 whereas according to the case of prosecution, the date of occurrence is 4th December, 1985. 10. On careful appraisal of the evidence as brought forth by the prosecution, several infirmities and discrepancies are found which create doubt over the prosecution story. 11. Firstly, the informant claims in the fardbeyan that while he was sitting in his quarter along with victim and others, the appellant along with two other accused had come there and they had called his brother and took him away but in his evidence he (informant) deposed that at the time of occurrence he was sitting at the place of his brother (lodge of his brother Awadhesh). This a doubt is created whether the informant was at his residence or lodge of his brother Awadhesh at the time of occurrence. This a doubt is created whether the informant was at his residence or lodge of his brother Awadhesh at the time of occurrence. In the fardbeyan, the informant does not say about any kind of threat given to the victim by the appellant-accused but in his evidence, in order to impute motive on the appellant, he tried to improve the story by saying that prior to the occurrence, the accused persons had beaten the victim and had snatched the wrist watch and had threatened him to kill due to which the victim had filed an application before the Sub-Divisional Officer. Any such application has not been brought on record, rather PW 5 who happens to be a friend of the victim deposed at para 3 of his evidence that he had never seen any kind of quarrel or dispute between the victim and the appellant. Even the informant says in his evidence that his brother (victim) had no kind of concern or dealing with the accused persons. In this view of the matters, the prosecution does not appear to have proved any kind of motive in the appellant for commission of the offence alleged. 12. There has been abnormal delay in lodging of the FIR. According to the case of prosecution, the occurrence is said to have taken place at 6.00 p.m. on 4th December 1985 when the victim is said to have been called by the appellant and two others who had taken away the victim with them. The informant categorically stated in his fardbeyan that after the going of his brother (victim), he kept sitting and waiting for the whole night for return of his brother and in his evidence (PW 2, paras 9 and 10) he deposed that when his brother did not come back he had searched for him (victim) during night and on the ensuing day and he had also gone to the residence of the appellant. But he does not say anything about having enquired of the appellant about his brother (victim). It is curious that the informant who had kept sitting and waiting for his brother for the while night does not enquire of the appellant about his brother, when according to the informant himself, the house of the appellant was not locked. But he does not say anything about having enquired of the appellant about his brother (victim). It is curious that the informant who had kept sitting and waiting for his brother for the while night does not enquire of the appellant about his brother, when according to the informant himself, the house of the appellant was not locked. The informant further deposed at para 12 that he waited for his brother till 6th December 1985 when he had to appear in the Examination and that when he did not appear in the Examination, he (informant) went to the house of the appellant for enquiring about his brother and when he enquired of the appellant, the appellant abused him and drove him away. Thus the informant enquires the appellant about his brother on 6th December 1985 and he was also faced with the situation that the appellant abused him and stated to him that he had no responsibility of his (informants) brother, but the informant does not go to police to inform about the occurrence. The informant goes to the police on the next day i.e., on 7th December 1985 and lodges the FIR. The sequence of the events and the actions taken by the informant does not show that the informant had any reasonable belief in his mind about the commission of the alleged offence at the hands of the accused. Had it been so, the informant would have enquired the appellant in the very night or on the ensuing day when he had visited the appellants house but he did not do so for the reasons best known to him. Even on 6th December 1985 when the appellant rebuked the informant and drove him away he does not go to the police and lodges the FIR on waiting for it and went to police on the next day. These circumstances show that there was sufficient occasion and opportunity for introduction of embellishment and afterthought in the FIR and the informant utilized all such occasions and opportunities in lodging the FIR. Due to these factors, a reasonable doubt is entertained over the credibility of FIR with respect to allegations as leveled by the informant to it. Due to some other discrepancies, as discussed above, which go to suggest that the informant is not fit to be believed as eye-witness to the occurrence, as claimed by him. Due to these factors, a reasonable doubt is entertained over the credibility of FIR with respect to allegations as leveled by the informant to it. Due to some other discrepancies, as discussed above, which go to suggest that the informant is not fit to be believed as eye-witness to the occurrence, as claimed by him. In such view of the matters, reasonable doubt is created over the case of prosecution. 13. In view of the facts and circumstances and the evidence, as discussed above, I find that the prosecution has not been able to prove the charges beyond reasonable doubt. Therefore, the charges are held not proved beyond reasonable doubt. 14. In the result, the conviction and sentence as passed by the learned trial Court is hereby set aside and the appeal is allowed. The appellant who is in custody is directed to be set at liberty forthwith, if not wanted to be detained in any other case.