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2010 DIGILAW 385 (PAT)

Dadan Ram v. State Of Bihar

2010-03-17

DHARNIDHAR JHA, DINESH KUMAR SINGH

body2010
JUDGEMENT Dharnidhar Jha and Dinesh Kumar Singh JJ. 1. The appellant Dadan Ram along with two others were put on trial in Sessions Trial No. 82 of 1999 for charges under Sections 364-A/34, 368/34 and 302/34 of the Indian Penal Code and 27 of the Arms Act. The trial ended with delivery of judgment oh 12th of August, 2003 by the learned 5th Additional Sessions Judge, Rohtas at Sasaram. Co- accused Ramashankar Ram was acquitted and the present appellant with Baliraj Ram was found guilty of committing offences under Sections 368/34 and 302/34 of the Penal Code and Section 27 of the Arms Act. The two convicted persons were directed to suffer rigorous imprisonment for life, rigorous imprisonment for ten years and rigorous imprisonment for two years respectively on each of the three above counts of their conviction. Convict Baliraj Ram did not prefer any appeal, whereas the present appellant Dadan Ram preferred the present appeal from Jail to question the propriety of the order of conviction and sentence passed upon him. 2. The prosecution story is very short. The two sons of PW 12, Ramnath Pandey were working in their paddy field along with labourers for amassing the paddy grains. Four persons came there with guns and two of them lifted Rabindra Kumar Pandey aged about 14 years and started moving towards West. By that time, Ramnath Pandey (PW 12) had also reached the field and he rushed to get his son rescued but the criminals, pointing their guns, towards the informant threatened him to keep silent else he would be killed. The informant moved for some distance behind the culprits but kept him at a distance of about half a kilometer. He raised hulla to attract the villagers and all of them moved in the direction in which the criminals had gone, but could not succeed in getting Rabindra Kumar Pandey released. It was sunset and dark. The informant and his co-villagers returned back to their village. 3. The written report about the occurrence was filed before the Officer-in- charge of Natwar Police Station on the 24th of January, 1998, i.e., the next day of the occurrence and on that basis of the First Information Report (Ext. 2) was drawn up and investigation was taken up. 4. The informant and his co-villagers returned back to their village. 3. The written report about the occurrence was filed before the Officer-in- charge of Natwar Police Station on the 24th of January, 1998, i.e., the next day of the occurrence and on that basis of the First Information Report (Ext. 2) was drawn up and investigation was taken up. 4. As may appear from the evidence of witnesses, like, PW 7 to PW 9, the police force went to village Tetarhat on receiving secret information that the victim had been confined by the criminals in the house of co-accused Anant Bhar. A seize was laid around the house. When the police attempted to enter into the house, thecriminals started firing at them. The police retaliated by counter shots. It is indicated by evidence of witnesses that four criminals as also the victim Rabindra Kumar Pandey had been killed during counter firing. 5. While the encounter was in progress, the police party alleges that a man came out of the house and told the police that he was also a victim of abduction. When the firing was over, the police claims that two persons again came out from the house, putting their hands up to surrender before the police by telling that they were among the criminals. The police claims entering the room and further claims, being pointed out by the two persons who had surrendered to them that the four dead bodies belonged to four different criminals of the gang who had kidnapped Rabindra Kumar Pandey and the fifth was that of the victim. 6. The police held the inquest upon the dead bodies and, thereafter, the bodies were brought to Dinara Police Station from where those were dispatched to the hospital for holding post-mortem examination. During the course of investigation, witnesses were examined and documents, like, inquest reports and seizure memos in respect of some weapons, allegedly, from inside the room was made. The police sub- mitted charge- sheet against the accused persons for their trial. 7. The defence of the appellant and other accused persons was that they were quite innocent and had falsely been implicated in the case. The present appellant, Dadan Ram stated that he was moving on the road at or around the time of occurrence and he was picked up by the police to be implicated in the present case falsely. 8. The defence of the appellant and other accused persons was that they were quite innocent and had falsely been implicated in the case. The present appellant, Dadan Ram stated that he was moving on the road at or around the time of occurrence and he was picked up by the police to be implicated in the present case falsely. 8. The prosecution examined a total number of 12 witnesses in support of the charges. PWs 1 to 5 are the witnesses who have supported the fact that the deceased Rabindra Kumar Pandey was lifted by the criminals and was taken away. Some of them have also supported the evidence of PW 12, the informant that he and some of his villagers followed the criminals in an attempt to get the victim rescued but, as PW 1 did not support some of the facts which was stated by her during her statement under Section 161, Cr PC, she was declared hostile and was cross-examined by the prosecution. The other witnesses like PWs 6, 7, 8, 9 and 10 were the officers or constables of the police department who supported the story of the prosecution including that part of it which was in respect of receipt of information about the confinement of the victim in the house of one Anant Bhar and laying down of a seize around the village and the house and, ultimately, the story of encounter in which four criminals and the victim were killed. 9. Thus, we do not have any doubt about it that Rabindra Kumar Pandey was kidnapped while he was working on his field by criminals. We are also not in doubt that the said Rabindra Kumar Pandey was confined in the house of one Anant Bhar and that there was firing and counter firing between the accused persons on the one side and the police party on the other in which 6ome criminals had been killed and the victim also died during that firing and cross-firing. However, the prosecution evidence in the case indicating as if the deceased were crying out of the house that he had been shot by one of the criminals, we have some difficulty in accepting this as given by the police personnel. However, the prosecution evidence in the case indicating as if the deceased were crying out of the house that he had been shot by one of the criminals, we have some difficulty in accepting this as given by the police personnel. It is indicated by evidence of the police personnel that while the firing and cross-firing were going on, a person came out of the same room and pointed out to the police party that he was also one of the victims of kidnapping. We are surprised by the fact that the name of that person was not disclosed by the police though the police witnesses have stated that he also accompanied them into the room after the firing had died down so as to identifying the dead bodies. He could be the only witness to state as to how the deceased Rabindra Kumar Pandey was killed. 10. In addition to above, we have evidence before us that two persons also came out of the same room and surrendered to the custody of the police party by telling the fact that they were the persons who had confined the deceased in that particular room. 11. As explanation in support of his defence, the appellant stated that he was picked up from the road while he was moving on it and was falsely implicated in this case. The best person to testify about the genuine character of the present appellant and especially about his act of confining the deceased Rabindra Kumar Pandey would have been the same person whose name has not been disclosed by the police least to talk of citing him as a charge- sheet witness. We have other reasons also to doubt the veracity of the prosecution evidences because it could be highly difficult for us to accept the proposition of the police that while the encounter was going on, not even a scratched was inflicted in the form of an injury to any of the personnel who formed the raiding party. Besides we have serious hesitation in acting upon the confessional statement of the two accused persons who are said to have surrendered to the police by stating that they were the persons who had wrongly confined the deceased. The fall out of the above statement of the two persons could be that of a confession before the police. Besides we have serious hesitation in acting upon the confessional statement of the two accused persons who are said to have surrendered to the police by stating that they were the persons who had wrongly confined the deceased. The fall out of the above statement of the two persons could be that of a confession before the police. It was being made to persons in authority and under the circumstance when all police personnel were with deadly weapons in their hands. We can not accept the above statement as admissible in view of many restrictions put down by Section 24 to Section 30 of the Evidence Act. 12. In that view of the matter, what we find is that the whole plethora of evidences which was placed on record before the trial Court, might have proved the fact that Rabindra Kumar Pandey was kidnapped from the field while he was working. It remained still in doubt as to how he was killed and who were his real abductor and captors. In light of the above, we find that it was one of the case in which benefit of doubt ought to have been extended to the accused. 13. In the result, we allow the appeal by extending the benefit of doubt to the present appellant Dadan Ram, who is in custody. The appellant Dadan Ram is directed to be released forthwith if not wanted in any other case.