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2013 DIGILAW 612 (PAT)

Mahesh Paswan v. State Of Bihar

2013-05-13

ASHWANI KUMAR SINGH

body2013
ORAL JUDGMENT Heard Mr. Sunil Singh, learned counsel for the appellant ably assisted by Mr. Kr. Dhirendra Pratap Singh, Advocate and Mr. Satya Narain Prasad, learned Additional Public Prosecutor on behalf of the State. 2. The present appeal is directed against the judgment and order dated 10th December, 2009, passed by the learned Additional Sessions Judge, F.T.C.-V, Gaya in Sessions Trial No.- 188 of 2006/ 152 of 2001 (S.J), whereby the sole appellant has been convicted for having committed an offence under section 364 of the Indian Penal Code and sentenced to undergo R.I. for eight years and to pay a fine of Rs.5,000/- and in default to undergo S.I. for a further period of six months. 3. The prosecution case is based on a typed information given by PW.3 Arvind Paswan to the Superintendent of Police, Gaya on 20th July, 2000. The said information was received at the Mufassil Police Station on the same date at 3.15 p.m. whereafter Mufassil P.S. Case No. 80 of 2000 was registered under sections 143, 364, 307 and 323 of the Indian Penal Code on the same day at 5.15 p.m. In the F.I.R. it has been alleged that on 18th July, 2000, at about 6 a.m., while the informant was washing his mouth near the bank of river Falgu, all of a sudden six persons including the appellant and one Arjun Paswan came there from the side of mountain. They put towel over the informant’s face and the two named accused persons put pistol on his back. They dragged him to some distance at the point of pistol. They, thereafter, injected some addictive liquid into the arm of the informant, as a result of which he became unconscious. In the night when he regained consciousness, he found himself near byepass bridge. Some how, he managed to walk up to Ram Gaya Vedi and again fell unconscious. The co-villagers and his family members brought him to his house and he was provided medical treatment. The motive assigned for the alleged incident is that a negotiation for marriage of the informant in the family of accused had taken place earlier but the same could not materialise and the informant was married to some other girl as a result of which the alleged offence was committed against him. He suspected that the accused persons may kill him. 4. He suspected that the accused persons may kill him. 4. On the basis of the aforesaid information, the F.I.R. was registered against the appellant, one Arjun Paswan and four unknown accused persons and investigation was taken up. On conclusion of investigation, the Police submitted charge-sheet only against the two named accused persons. The learned Chief Judicial Magistrate, Gaya took cognizance of the offence and committed the case to the court of Sessions for trial. The trial court framed charges under sections 307 and 364 of the Indian Penal Code. In course of trial, co-accused Arjun Paswan died and thus the trial against him was dropped. 5. In order to prove the charges, the prosecution examined seven witnesses, in all. PW.1 Chando Devi, mother of the informant, PW.2 Sanju Devi, wife of the informant and PW.7 Kishori Paswan are hearsay witnesses. PW.3 Arvind Paswan, being the victim, is the informant of the case. He has proved his signature on the typed report which has been marked as Exhibit-1. PW.5 Ramesh Singh and PW.6 Sachidanand Upadhyay, being Advocate Clerks, are formal witnesses. They have proved signature of the S.H.O. of Mufassil Police Station on formal F.I.R. and endorsement on typed information by the SHO of Mufassil Police Station which have been marked as Exhibits 2 and 3 respectively in course of trial. 6. The appellant has pleaded innocence in his statement recorded under section 313 of the Code of Criminal Procedure. The defence has also examined two witnesses, namely, Kapildeo Prasad (DW.1) and Sanjay Kumar (DW.2), who have proved the signature of one Laxman Paswan, Additional Collector, Gaya on a certificate and its contents to the effect that on the relevant date the appellant was on official duty which have been marked as Exhibit X and Y respectively in course of trial. 7. PW.1 Chando Devi, admitted in cross-examination that the entire occurrence was narrated to her by the victim. She stated that when her son went missing an information was given to the Police and after four hours her son was found near Sitakund. According to her, the victim was first brought to his house in the night at about 8 p.m. In the next morning he was taken to Dr. U.K. Mishra and after initial treatment he was taken to hospital at Golpathar. She admitted that her statement was not recorded by Police in course of investigation. According to her, the victim was first brought to his house in the night at about 8 p.m. In the next morning he was taken to Dr. U.K. Mishra and after initial treatment he was taken to hospital at Golpathar. She admitted that her statement was not recorded by Police in course of investigation. She also admitted that her husband Karu Paswan and son Arbind Paswan (informant) are accused in the murder case of one Sharwan. She stated that the victim told her that it was Umesh Paswan who injected the addictive substance into his arm as a result of which he became unconscious. She further admitted that accused persons are her neighbours. 8. PW.2 Sanju Devi, wife of the informant, stated that on 18th July, 2010, at about 6 a.m., her husband went out to ease. Since he did not return till 10 a.m., a search was made for him. At about 9.30 p.m., there was a rumour that her husband was lying near Sitakund. She immediately went together with co-villagers to Sitakund and brought back her husband who disclosed that four persons including the two named accused took him towards South at the point of pistol and after covering his face they injected some addictive substance into his arm pursuant to which he became unconscious. In cross-examination, she admitted that after her husband was found near Sitakund he was brought by the co-villagers to his house but she could not disclose the names of co-villagers who carried him to his house. She admitted that the informant narrated about the whole incident in the night on 18th July, 2000, itself. She denied the defence suggestion that her husband was a drunkard and was found in a drunken stage and as he was made accused in the murder case of the nephew of the appellant a false and concocted case was registered. 9. PW.3 Arvind Paswan, the informant, stated that on 18th July, 2000, at about 6 a.m., while he went out to ease in the river Falgu, the appellant put pistol on his temple and co-accused Arjun Paswan tied his hands. The four unknown accused persons dragged him to some distance in the river and thereafter, they injected some addictive substance into his arm, as a result of which he became unconscious. When he regained consciousness, he found himself near bypass bridge. The four unknown accused persons dragged him to some distance in the river and thereafter, they injected some addictive substance into his arm, as a result of which he became unconscious. When he regained consciousness, he found himself near bypass bridge. He walked up to get Ram Gaya Vedi and again became unconscious there. According to him, the priest of the temple informed the family members and, thereafter, the co-villagers carried him to hospital for treatment. He further stated that after being released from hospital he submitted the typed information to the Superintendent of Police who transmitted the same to the Police Station pursuant to which the F.I.R. was instituted. In cross-examination, he has described about the place of occurrence which clearly depicts that his village, the bypass bridge, Sitakund and Ram Gaya Vedi are all within close vicinity. He admitted in cross-examination that he regained consciousness for the first time in the evening on 19th July, 2000, in the dispensary of Dr. U.K. Mishra where he was undergoing treatment. He further admitted that when he was being taken to the Doctor he was unconscious. According to him, on 19th July, 2000, the Officer-in-charge of Mufassil Police Station had come to the dispensary of Dr. U.K. Mishra, but his statement was not recorded. In further cross-examination, he admitted that he was confined in jail for four months in connection with a case registered for murder of one Shrawan Paswan (nephew of the appellant). The defence has drawn his attention towards the previous statement made by him before the Police in course of investigation. 10. PW.4 Laleshwar Paswan stated that on the relevant date and time of occurrence when the victim was going to ease the appellant Mahesh Paswan, co-accused Arjun Paswan and four unknown persons put pistol on his belly and took him towards South in the river. He claimed himself to be an eye witness of the incident so far as the initial abduction of the informant is concerned. He stated that he immediately went to the house of the informant and narrated the entire incident to the family members. Immediately thereafter, P.W.4 together with the family members went towards the direction in which the accused persons had taken away the victim, but the victim could not be traced. Thereafter, they went to the Police Station but the Police failed to register any case. Immediately thereafter, P.W.4 together with the family members went towards the direction in which the accused persons had taken away the victim, but the victim could not be traced. Thereafter, they went to the Police Station but the Police failed to register any case. He also denied the defence suggestion that since he has been made accused in connection with a case relating to murder of nephew of the appellant, he has falsely deposed in the Court. 11. PW.7, Kishori Paswan, has corroborated the statement made by P.W.4 Laleshwar Paswan. He stated that P.W.4 was saying that the victim has been kidnapped by the accused persons on gun point. He further stated that on the same night, at about 8 p.m., he saw that the victim was being carried back to his house by Munna Paswan, Laleshwar Paswan, Radhey Kewat and Yamuna Paswan. According to him, at that point of time, the victim was unconscious. He stated that the victim was firstly treated by a local Doctor, namely, Lakhan Chandra in the night on 18.07.2000. However, since the victim failed to recover, he was taken to the dispensary of Dr. U.K. Mishra in the next morning i.e., 19th July, 2000. He denied the defence suggestion that since he has been made accused in a case relating to murder of nephew of the appellant, he has falsely deposed in the Court. 12. Having heard learned counsel for the appellant, learned counsel for the State and perused the evidence on record, I find that the informant has contradicted his own version as given in the F.I.R. in material particulars while deposing in the Court. In the F.I.R. he has alleged that the two named accused persons put pistol on his back whereas while deposing in the Court he stated that the appellant put pistol on his temple and the other named accused Arjun Paswan tied his hands. I also find that in the F.I.R. the informant has alleged that he was abducted while he was washing his mouth at the bank of river Falgu but while deposing in court he stated that he was abducted while he was going to ease in the river Falgu. 13. I further find that the informant has materially contradicted PW.1 Chando Devi and PW.2 Sanju Devi, who are none else but the mother and wife of the informant respectively. 13. I further find that the informant has materially contradicted PW.1 Chando Devi and PW.2 Sanju Devi, who are none else but the mother and wife of the informant respectively. PW.1 Chando Devi and PW.2 Sanju Devi have stated in their respective depositions that on the night of occurrence itself the informant narrated them about the incident at his house after regaining consciousness, whereas the informant stated in his deposition that he regained consciousness for the first time in the clinic of Dr. U.K. Mishra on 19th July, 2000. 14. Under such circumstance, if the informant is to be believed then PW.1 Chando Devi and P.W.2 Sanju Devi become wholly unreliable and if P.W.1 and P.W.2 are to be believed then the informant becomes thoroughly unreliable. PW.1 Chando Devi, PW.2 Sanju Devi and PW.7 Kishori Paswan have stated that the victim was first taken to his house from Ram Gaya Vedi at 8 p.m. on 18th July, 2000, but the informant categorically stated in his deposition that he was taken to the hospital and to Dr. U.K. Mishra from Ram Gaya Vedi and after regaining consciousness he submitted his typed information to the Superintendent of Police, Gaya. Thus, if the informant is to be believed prior to the submission of the typed report on 20th July, 2000, he had not been taken to his house. In that circumstance, no reliance can be placed on the deposition of PW.1, PW.2 and PW.7. 15. I further find that PW.4 Laleshwar Paswan has given a completely different story. If he is to be believed, then he narrated the entire incident of abduction of the informant to the family members immediately after the occurrence, but the family members such as P.Ws.1 and 2 do not corroborate him. While being examined in Court, they did not utter a word about any information received from PW.4 Laleshwar Paswan. 16. I also find that PW.4 Laleshwar Paswan claims himself to be an eye witness of the first part of the occurrence. He stated that the accused persons had put pistol on the informant’s belly while abducting him whereas the informant stated in course of trial that at the time of abduction the appellant had put pistol on his temple. As noted above, in the F.I.R., the informant has alleged that the appellant and the other accused, namely, Arjun Paswan has put pistol on his back. As noted above, in the F.I.R., the informant has alleged that the appellant and the other accused, namely, Arjun Paswan has put pistol on his back. Thus, I find that the witnesses have contradicted each other in materials particulars. 17. At this stage, I would also like to record that there is nothing on record to show that the informant was ever treated by any Doctor. None of the Doctors who are alleged to have treated the informant has been examined in course of trial. There is no medical report on record to corroborate the fact that the victim was ever injected with any addictive substance into his arm. 18. It would also be apt to record here that the Investigating Officer of the case has not been examined. His non examination has certainly caused prejudice to the defence. The defence has drawn attention of the witnesses towards their previous statements made before Police but due to non examination of the Investigating Officer the defence could not take contradiction from him. 19. I would further like to record here that PW.7 Kishori Paswan, stated that the victim was carried back to his house by Munna Paswan, Laleshwar Paswan, Radhey Kewat and Yamuna Paswan after being found near Ram Gaya Vedi. However, Munna Paswan, Radhey Kewat and Yamuna Paswan have not been examined in course of trial and PW.4 Laleshwar Paswan, while being examined in court, did not say that he carried back the informant to his house from Ram Gaya Vedi. Lastly, I would like to record that the independent witnesses, such as, the priest who is alleged to have informed the family members first, the Doctor who treated the informant in his village, the Doctors who treated him in their dispensary and Hospital, the co-villagers who carried back the informant immediately after recovery and the witnesses of the locality from where the informant was recovered have not been examined by the prosecution in course of trial and the witnesses who have been examined on behalf of the prosecution are either related or interested witnesses. The motive suggested by the defence for false implication of the appellant to the prosecution witnesses seems to be more plausible than the motive assigned by the prosecution for committing the offence. 20. The motive suggested by the defence for false implication of the appellant to the prosecution witnesses seems to be more plausible than the motive assigned by the prosecution for committing the offence. 20. On the basis of such evidence the trial Court held that the prosecution failed to prove its case under section 307 of the Indian Penal Code but it convicted the appellant for the offence under section 364 of the Indian Penal Code finding sufficient evidence against him. Section 364 of the Indian Penal Code reads as under:- “364. Kidnapping or abducting in order to murder- Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with (imprisonment for life) or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” 21. The essential ingredients of the offence under section 364 of the Indian Penal Code in the case of kidnapping and in the case of abduction are as follows:- In the case of kidnapping- (a) The accused kidnapped a person, (b) If so with the intent to- (i) Murder him, or (ii) dispose of in such a way to put him in danger of being murdered. In case of abduction- (a) The accused compelled a person to go from a particular place; (b) He confined such person by force or by deceitful means; (c) He did so with the intent to- (i) Murder the person abducted or; (ii) dispose of in such way as to put him in danger of being murdered. 22. In order to sustain a charge under section 364 of the Indian Penal Code, there must be an intention on the part of the accused either to murder or to have the victim of the offence murdered, or to dispose of or to have him disposed of with the knowledge that such disposal will put him in danger of being murdered. Apparently, it would appear from the evidence that these ingredients are completely missing in the present case. 23. Taking into consideration the entire facts and circumstances of the case as discussed, hereinabove, I am of the considered opinion that the prosecution has completely failed to prove the charge under section 364 of the Indian Penal Code against the appellant. 24. Apparently, it would appear from the evidence that these ingredients are completely missing in the present case. 23. Taking into consideration the entire facts and circumstances of the case as discussed, hereinabove, I am of the considered opinion that the prosecution has completely failed to prove the charge under section 364 of the Indian Penal Code against the appellant. 24. In the result, the impugned judgment of conviction and order of sentence dated 10th December, 2009, passed by the learned Additional Sessions Judge, F.T.C.-V, Gaya, in Sessions Trial Case No. 188 of 2006/152 of 2001 (S.J.), are set aside. Since the appellant is on bail, he is discharged from the liabilities of the bail bonds.