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2014 DIGILAW 687 (PAT)

Ram Bachan Yadav v. State of Bihar

2014-06-19

ANJANA PRAKASH, DHARNIDHAR JHA

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JUDGMENT (Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH) 1. The sole Appellant has been convicted for the offence under Section 364 IPC and sentenced to RI for life as also under Section 144 IPC and sentenced to RI for one year by a judgment dated 20.06.1990 passed in Sessions Trial No. 507(A)/163 of 1986/90 by the 2nd Additional District & Sessions Judge, Bhabhua. 2. The case of the Informant, Salik Singh, P.W. 5 is that on 12.03.1986 when his family members had gone for “Gawna” ceremony of his nephews, Komal Singh and Ram Pukar Singh he went in the fields along with his cousins Sarjoo Singh and Awadh Singh and sometime later he saw about fifteen accused persons, some of whom he identified having been variously armed who came towards his cousins i.e. Sarjoo Singh and Awadh Singh and forcibly took them away. At that point in time, he noticed that the present Appellant was sitting under a tree nearby along with 20-25 persons who were also armed. The first party who had allegedly abducted the two victims took them near the well and fired once. Thereafter, the Appellant also joined the first party and went towards the east. The Informant then came home and informed his other family members whereafter P.W. 1, Shiv Bhajan Singh Koeri and Banshidhar Singh, P.W. 4 were despatched to stop the “Barat”. 3. It has been submitted on behalf of the Appellant that even accepting the prosecution case no case under Section 364 IPC is made out since the ingredients of abduction is absent. The further submission is that the witnesses who have been examined are not trustworthy as also the failure of the prosecution in examining the Investigating Officer is fatal to the prosecution case. 4. On the other hand, the Counsel for the State submits that there are five witnesses out of whom three are eye-witnesses who are further corroborated by hearsay witnesses and there is no merit in the appeal and the same should be dismissed. 5. It is in this background that we shall proceed to examine the persecution evidence. We find that prosecution has examined five witnesses out of whom P.W. 1 and P.W. 2 are hearsay witnesses whereas P.W. 3, P.W. 4 and P.W. 5 are eye-witnesses to the occurrence. 5. It is in this background that we shall proceed to examine the persecution evidence. We find that prosecution has examined five witnesses out of whom P.W. 1 and P.W. 2 are hearsay witnesses whereas P.W. 3, P.W. 4 and P.W. 5 are eye-witnesses to the occurrence. We shall now proceed to examine the individual evidence of each of the witnesses to test the veracity of the prosecution case. 6. P.W. 1, Shiv Bhajan Singh Koeri stated that on the date of occurrence at about 3-3.30 P.M. Informant, Salik Singh, Banshidhar Singh, P.W. 4, Basudev Singh, P.W. 3 came to his house and told him that the accused persons had taken away the two victims. These witnesses told him to bring back the “Barat” at which he proceeded for the same. It was felt that the two victims had died and, therefore, their last rites were conducted by the family. 7. In his cross-examination, he stated that he reached the “Barat” at about 4-5 P.M. and had gone via Bhagwanpur where there was a Police Station located. However, he did not give any information at the Police Station. He further stated that he did not know as to whether the Police had come on the date of occurrence at the village and had made any inquiry there. It was only on 14.03.1986 i.e. two days later that he had approached the Investigating Officer and given his statement u/s 161 Cr.P.C. 8. P.W. 2, Ramjee Singh Koeri is also a hearsay witness who stated that at around 3 P.M. he was informed by the Informant, P.W. 5, Basudev Singh, P.W. 3 and Banshidar Singh, P.W. 4 that the victims had been abducted by the accused persons. He also corroborated that P.W. 1 was despatched to stop the “Barat” and bring them back as also that last rites of the two victims had been conducted by the family. From his evidence, it appears that two victims used to live in the hutment in the middle of the fields the topography of which he describes in cross-examination. He accepted that he took no action on the information given by Salik Singh and others as also even though he was in the village on 12.03.1986, he had no information that the Police came for investigation at the village. He met the Investigating Officer only on 14.03.1986 i.e. two days later when he was examined. He accepted that he took no action on the information given by Salik Singh and others as also even though he was in the village on 12.03.1986, he had no information that the Police came for investigation at the village. He met the Investigating Officer only on 14.03.1986 i.e. two days later when he was examined. He appears to be an untrustworthy witness. 9. P.W. 3, Basudev Singh is an eye-witness who stated that on the date of occurrence at around 2.30 P.M. while he was at the well i.e. about 200 yards west of village he heard a sound of firing towards the east. He then stood up to see what was happening and saw that some 15-16 persons were gathered near the hutment of victim, Sarjoo Singh. He further saw that the accused persons had surrounded the victims and were variously armed. He names some of them. He further stated that the present Appellant with about 15-20 persons was sitting that side where the first party along with the two victims went and then they all left towards the east. Surprisingly, even though he stated that he had seen the Informant nearby but he went to inform him about the occurrence and also P.W. 1 and P.W. 2. When questioned as to whether he had fixed his location from where he had seen the occurrence by pointing it out to the Investigating Officer he denied the same. This witness was also examined on the third day of the occurrence on being summoned by the Investigating Officer. He stated that he had knowledge about the Police arriving at the village on the next day of the occurrence. He also stated that the Informant had gone to the Police Station but did not have any further information on the same. He denied the suggestion that he had stated before the Investigating Officer in his statement recorded u/s 161 Cr.P.C. that his eye-sight was weak and, hence, could not identify any of the accused persons. 10. P.W. 4, Banshidhar Singh stated that on the date of occurrence he did not go to the clinic but was in the fields where he heard the sound of firing and saw several accused persons. He identified some of them having caught hold of the two victims. 10. P.W. 4, Banshidhar Singh stated that on the date of occurrence he did not go to the clinic but was in the fields where he heard the sound of firing and saw several accused persons. He identified some of them having caught hold of the two victims. He also saw that about 20-30 dacoits along with the present Appellant was sitting under a tree and all of them joined the first party and left towards the east. Surprisingly, in his evidence he refers to the miscreants as “dacoits” even though there is no material to even remotely suggest that the Appellant was ever implicated in a case of dacoity or was involved in any such an occurrence. He also supported P.W. 2 that P.W. 1 had been despatched to bring back the “Barat” and that no one was despatched to the Police Station or to call the Chowkidar. He stated that on the next day he did not go to his clinic and instead went to Bhabhua and on the said night the Police party had come to the village and he had heard that the Police had arrived at the village. However, he did not give any information anywhere. Even though he had information that the Police Party had come, he did not go to them nor was summoned to depose. From paragraph 20 of his evidence, it appears that he did not appear before the Police the whole day nor in the night and was examined only two days later i.e. on 14.03.1986. His attention was drawn to various contradictions, in his statements recorded under Section 161 Cr.P.C. and in Court to which he denies. 11. P.W. 5, Salik Singh is the Informant of the case who repeated his version given in the First Information Report. He further added that the abduction had taken place on account of the fact that 9-10 years earlier a dacoity had taken place in the house of Awadh Singh i.e. one of the victims in which one Ram Naresh Yadav and some others were implicated. The said Ram Naresh Yadav belongs to the group of Appellant, Ram Bachan Yadav and it was for this reason that the present occurrence had taken place. It appears the Police Party and the “Barats” had arrived simultaneously. The said Ram Naresh Yadav belongs to the group of Appellant, Ram Bachan Yadav and it was for this reason that the present occurrence had taken place. It appears the Police Party and the “Barats” had arrived simultaneously. He states they had come on a rumour since a lot of hue and cry had been raised about the occurrence. However, we do no not know the exact nature of the information upon which the Officer In-charge along with the Chowkidar, Kishun Dusadh had arrived. 12. His attention was drawn to his earlier statement as to whether he had narrated factum of the occurrence to P.W. 1 and P.W. 2 to which he denied. His attention was also drawn to the earlier statements recorded by the Dy.S.P. and the contradictory nature of the same. He conceded that about three miles away from the village a Police Picket had been posted as also that Bhagwanpur Police Station was located less than one mile from the village. 13. Surprisingly, even he refers to the miscreants as dacoits which raises a suspicion as to whether this occurrence had been committed by unknown dacoits after which some villagers have been trapped on account of some partisan village politics and enmity admitted by P.W. 5, Salik Singh. 14. Importantly, the Investigating Officer was not examined which has deprived the Court of looking into the earlier statements of the witnesses on important aspects as is apparent from the cross-examination of all the witnesses including the Informant. 15. The notable point in the present appeal is the conduct of the witnesses. Admittedly, the two victims are close relatives of the Informant and yet no step was taken by the Informant or the rest of the family members to immediately look for them or ensure their return by reporting to the Police Picket posted nearby. The Informant has accepted that right from the time of occurrence till the Police came he took no action and merely sat at the door of his house. Similarly, the conduct of the rest of the witnesses is also suspicious. All of them were examined two days of the occurrence i.e. belatedly. There is no explanation as to why they did not think it important to appear before the Police which had reached the village around 8 P.M. on the same day and was present till the next morning at the village. All of them were examined two days of the occurrence i.e. belatedly. There is no explanation as to why they did not think it important to appear before the Police which had reached the village around 8 P.M. on the same day and was present till the next morning at the village. In this background it is doubtful that as to whether the information given at the place of occurrence is the correct version of the occurrence or was contrived and manipulated to suit vested interests. 16. We also find P.W. 5 in paragraph 5 has stated that the Police Party had gone outside the village for some time indicating that there could be a possibility of an outside influence to implicate the present Appellant and the other co-accused persons. 17. In the facts of the present case, the only independent witness who could have cleared the doubts of the Court was the Investigating Officer who unfortunately has not been produced by the prosecution and, hence, this Court is left groping in the dark and has no option but to reject the story of complicity of the present Appellant. 18. For the reasons stated above, the Appeal is allowed and the judgment of conviction and order of sentence passed against the Appellant on 20.06.1990 by the 2nd Additional District & Sessions Judge, Bhabhua in S.Tr. No. 507(A)/163 of 1986-90 is, hereby, set aside. The Appellant is acquitted of the charge he had been found guilty of. He is on bail. He shall stand discharged from the liability of his bail bond. 19. The Appeal stands allowed.