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2014 DIGILAW 715 (PAT)

Md. Nezam v. State of Bihar

2014-06-27

GOPAL PRASAD

body2014
Gopal Prasad, J. – Heard. 2. This is an appeal preferred against the judgment of conviction dated 23. 01. 2012 and order of sentence dated 24. 01. 2012 in S.C. No. 33 of 2010 passed by the learned Sessions Judge, F.T.C.I, Khagaria, by which the appellants have been sentenced to rigorous imprisonment of ten years under Section 364 of Indian Penal Code and a fine of Rs. 5000/- each and in default of payment of fine further imprisonment for one year each. 3. The prosecution case as alleged in the complaint that on 04. 07. 2006 at about 9 A.M. the complainant(P.W.6) along with his wife Samila Devi (P.W.5) and his son Chattu Thakur, victim were working in the maize field then all the accused persons, namely, Md. Nezam, Md. Natho, Md. Daud, Parmod Sah and Shivnandan Gupta came and called Chottu Thakur, the son of the complainant. When the son of the complainant did not proceed then accused Natho and Md. Daud took out their pistol from their waist and both catch hold of son of the complainant and dragged him and other accused persons were started physically assaulted and pushed the victim, i.e. son of the complainant. It is further alleged that the complainant make hulla came his village and told the villagers that his son has been assaulted for no reason then villagers assured to resolve the dispute. The son of complainant did not return even after three days of occurrence, then there was rumour in the village that the daughter of Natho also had flee away from her house and doubt has been raised that son of the complainant kept her. The complainant remained searching of his son. On 10.07.2006, there was rumour in the village that daughter of Natho has been recovered and has returned to her house. When the complainant went to the house of Natho to enquire about his son then all the accused persons abused and assaulted him. Thereafter, the complainant tried to search out of his son at his level, but in vain. It is further alleged that the rumour has been raised that the son of complainant has been murdered by the accused persons and the dead body has been thrown in Koshi river. Thereafter, the complainant tried to search out of his son at his level, but in vain. It is further alleged that the rumour has been raised that the son of complainant has been murdered by the accused persons and the dead body has been thrown in Koshi river. It is further alleged that Chottu Thakur had love affairs with the daughter of Natho and for this reason the son of the complainant murdered by the accused persons. It is further alleged that the complainant reported the matter to the police, but the police did not take any action on the pretext that daughter of the Natho has been recovered and asked the complainant to make search of his son. Thereafter, on the basis of complaint, case was lodged bearing Chautham P.S. Case No. 150 of 2006. 4. However, the police after investigation submitted Final Form. It is reported that the present case has been instituted to a counter case bearing Chautham P.S. Case No. 132 of 2006, dated 11.07. 2006, registered under Section 306 I.P.C. 5. However, a protest petition has been was filed in the case on 17. 08. 2006 by the complainant. After acceptance of Final Form filed by police the court proceeded on protest-cum-complaint petition and the complainant and the witnesses were examined under Sections 200 and 202 of Cr.P.C. The court proceeded issuing process after taking cognizance for appearance of the accused and consequence thereof all the accused persons appeared. The case was committed to the Court of Sessions on 27.02.2010 and after commitment, charge was framed under Section 306 and 364 of and other allied Sections of Penal Code. 6. During trial, six witnesses were examined as P.W. 1, Bino Sharma, P.W. 2 Kokan Mian, P.W. 3 Fokan Mian, P.W. 4 Harimohan Thakur, P.W. 5 Samila Devi and P.W. 6 Shambhu Thakur. Shambhu Thakur was informant-cum-complainant. 7. The defence has also adduced oral and documentary evidence. The oral evidence adduced on behalf of defence as D.W. 1, Shankar Mistry, D.W. 2, Shivnandan Gupta and D.W.3 Md. Nizam. The documentary evidence adduced on behalf of defence as Ext. ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘F’, ‘G’, ‘H’ and ‘I’, certified copy of charge sheet of Chautham P.S. Case No. 8 of 2006, order sheet of Chautam P.S. Case No. 132 of 2006 and deposition in Sessions Trial No. 205 of 2001. 8. Nizam. The documentary evidence adduced on behalf of defence as Ext. ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘F’, ‘G’, ‘H’ and ‘I’, certified copy of charge sheet of Chautham P.S. Case No. 8 of 2006, order sheet of Chautam P.S. Case No. 132 of 2006 and deposition in Sessions Trial No. 205 of 2001. 8. The defence of the accused persons completely denied of the occurrence and assertion that father of the complainant had illicit relation with the wife of the complainant and the victim the son of the complainant had seen illicit relation so the victim was killed by the father of the complainant in the pretext that the father of the complainant demanded water from the son of the complainant and when he refused then father of the complainant killed him (Chottu) by gun shot injury for which a case was lodged on 11. 07. 2010. 9. Taking into consideration the case of prosecution and the evidence adduced by the prosecution and its witnesses and the defence adduced on behalf of accused, the trial court convicted the accused persons for offence under Section 364 of Indian Penal Code and holding that the daughter of Natho had love affairs with the victim Chottu Thyakur sentenced them to undergo rigorous imprisonment for ten years. 10. The learned counsel for the appellants challenged the order of conviction and sentence on the ground that the learned Sessions Judge while recording the conviction has relied on the evidence of P.W. 1, 2, 3 and 4 as eye witnesses where as the evidence of P.W. 6, the complainant in the case stated in F.I.R. that after the occurrence he went to village and disclosed about the occurrence in the village and hence according to P.W. 6, the P.W. 1, 2, 3 and 4 are not eye witnesses to the occurrence and the evidence of P.W.6 and P.W. 5 who are interested witnesses, there is neither any corroboration nor the person came to support it about any Panchayati or disclose about the occurrence by P.W. 6 and further there is delay in lodging the complaint or institution of F.I.R. and further the case investigated by the police and Final Form submitted that case is palpably false then case proceeded on protest. 11. 11. Learned counsel for the complainant however contends that all the witnesses consistently supported the prosecution case claimed to be eye witnesses to the occurrence and trial court after taking into consideration the evidence of the witnesses convicted and sentenced the accused persons as mentioned above and hence the order of conviction is sustainable in law. 12. Hence prosecution case in F.I.R. that occurrence took place in the field when appellants came and kidnapped the son of the complainant P.W. 6 and the P.W. 6 then came to the village and informed the villagers including P.Ws. 1 to 4 on 04.07.2010, but does not choose to file F.I.R. or complaint even when his son did not return. In the meantime there is rumour that daughter of Natho alleged to have love affairs with the victim also recovered and return, but the son of the complainant not return but matter was not reported and again a case lodged regarding the murder of the victim, Chootu, but even then matter was reported till 10.07.2010 and complaint filed only on 17. 07. 2010 for which no explanation has been given. 13. Further P.W. 6, the complainant however deposed in his deposition the place of occurrence is filed about 1 KM. away from village and at the time of occurrence no persons were in arround the filed and they disclosed the villagers P.W. 1, 2, 3 and 4 only after return from P.O. after the occurrence. Hence as per the prosecution case itself P.W. 1, 2, 3 and 4 can not be eye witnesses in view of the prosecution case in the F.I.R. and deposition of the P.W. 6. Hence the finding recorded by the trial court on the basis of evidence of P.W.1,2, 3 and 4 is not sustainable. Though, the evidence of P.W. 4 that he saw the occurrence but did not close about the occurrence to any one itself doubts his conduct. 14. The P.W. 6 and 5, though, supported the prosecution case but their evidence does not improve confidence and there is no corroboration and has come forward to depose that they intimated the villages and Panchayati was done. 15. 14. The P.W. 6 and 5, though, supported the prosecution case but their evidence does not improve confidence and there is no corroboration and has come forward to depose that they intimated the villages and Panchayati was done. 15. Having regard to the fact and circumstance, earlier a complaint case was instituted which was sent for lodging F.I.R. and police after investigation submitted Final Form on which disbelieving the prosecution story and thereafter the matter was proceeded on protest-cum-complaint and evidence of P.W. 1 to 4 claimed to be eye witnesses, but their evidence claiming to be eye witnesses is in contradiction to the First Information Report and statement of P.W. 6. However, there is delay in lodging the F.I.R. Further occurrence took place on 04.07.2006 and it is alleged that victim was kidnapped and accused persons dragged the victim in front of the complainant. However, the complainant and his wife did not protest nor they lodged F.I.R. before the police or complaint before the court below. It is further stated there is hulla in the village that daughter of Natho fled away with the son of the complainant, but the matter was not reported. Thereafter, on 10.07.2006, daughter of Natho has returned, but son of the complainant did not return even then he did not inform. After seven days i.e. on 17. 07. 2010 a complaint case was filed, but there was no explanation in delay in lodging the F.I.R. finding that there was no proper explanation for delay in lodging the complaint or F.I.R. by the complainant itself when son of the complainant has been dragged by the accused persons on 04. 07. 2006 remained silent. 16. Hence taking into consideration the fact, the prosecution has not been able to prove the charges against the appellants. However, taking into consideration the fact, the prosecution case in the First Information Report of the complaint petition that P.W. 1 to 4 are not shown to be eye witnesses to the occurrence. However, the trial court accepted the evidence of P.W. 1 to 4 and has not appreciated the defence of the accused persons. Hence I find and hold that prosecution has not been able to prove the charges and hence of order of conviction and sentence is set aside and appeal is allowed.