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2015 DIGILAW 1025 (PAT)

Bishundeo Sahani v. State of Bihar

2015-08-13

ADITYA KUMAR TRIVEDI

body2015
JUDGMENT : Appellants, Bishundeo Sahani and Dhrub Sahani have filed instant appeal against the judgment of conviction dated 09.09.1992 and sentence dated 14.09.1992 passed by the Sessions Judge, East Champaran at Motihari in connection with Sessions Trial No.371 of 1991 whereby and whereunder appellants have been found guilty for an offence punishable under Section 365 of the I.P.C. and each one has been directed to undergo rigorous imprisonment for five years. 2. Shorn of unnecessary details, the case of the prosecution as comes out from the Fard-beyan of Ashok Bhagat (PW-1) recorded on 15.04.1991 before O/c of Kesariya P. S. at Village-Gawandri in the bamboo cluster belonging to Singeshwar Sah on 15.04.1991, disclosing therein that in the night of 11.04.1991 while he was sleeping alone at his Darwaza, at about 11.00 p.m., 4-5 persons came, caught hold him and lifted him on account of which, he awaken. As he was caught hold by neck, he began to whine, over which one of the accused, who was armed with gun, had threatened that in case alarm is raised, he will be eliminated. He saw the miscreants about 10-15 in number, who were armed with firearms. While passing through the Darwaza of Narayan Singh, Dukhi Hajra, an employee, awaken, who was assaulted by one of the accused. Thereafter, all the accused lifted him, dragged him and brought to the bamboo cluster where they had fully prepared the location to keep. Some of the accused remained there while some returned back. They have disclosed that after receiving of Rs.50,000/- from his parents, they win let him off. While he was under captive, the police raided and during course thereof, the miscreants began to flee and during course thereof, two miscreants along with firearms were apprehended. He had also been rescued from captive. The apprehended accused had disclosed their names as Bishundeo Sahani and Dhrub Mahto and further, disclosed names of their accomplice as Chandrika Singh, Ram Chandar Rai, Sukhdeo Rai, Dewan Rai, Chanderdeo Rai, Jamuniya Rai, Bhagwan Singh, Bihari Rai @ Mama, Sheonath @ Sadhu. Informant had further claimed that his kidnapping was for the purpose of ransom. 3. Kesariya Police forwarded the aforesaid Fard-bayan to Sangrampur Police Station for registration and investigation of the case whereupon Sangrampur P. S. Case no.15 of 1991 was registered under Sections 452, 364, 365, 34 of the I.P.C. and proceeded with an investigation. Informant had further claimed that his kidnapping was for the purpose of ransom. 3. Kesariya Police forwarded the aforesaid Fard-bayan to Sangrampur Police Station for registration and investigation of the case whereupon Sangrampur P. S. Case no.15 of 1991 was registered under Sections 452, 364, 365, 34 of the I.P.C. and proceeded with an investigation. After concluding the same, chargesheet was submitted under the aforesaid Sections and on account therefore, after taking cognizance, the case was committed, trial proceeded and ultimately met with the result, the subject matter of instant appeal. 4. The defence case as is evident from mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is that of complete denial as well as false implication. However, neither any DW nor any kind of documentary evidence has been adduced on behalf of defence. 5. In order to substantiate its case, prosecution had examined all the five PWs, so named in the chargesheet. As PW-1 Ashok Bhagat, PW-2 Dukhi Paswan, PW-3 Kamlesh Prasad Singh, PW-4 Ram Bilash Yadav and PW-5 Anandi Jha as well as had also exhibited the documents as Exhibit-1 signature of informant over fard-bayan, Exhibit-2 fard-bayan, Exhibit-3 formal F.I.R. 6. Learned counsel for the appellants while assailing the judgment of conviction and sentence has submitted that the learned lower Court failed to appreciate the case of the prosecution in its right perspective, because of the fact that there happens to be several flaws present which make the prosecution case doubtful. The first and foremost ground of argument has been with regard to keeping silence by the family members of PW-1/ informant, Ashok Bhagat. It has been submitted that informant was kidnapped on 11.04.1991, but no F.I.R. was drawn up at the behest of his family members. Even during trial, none of his family members came forward to support the case of the prosecution. So, the status of the informant shrouds under mystery where he happens to be one of the accused or really was a victim. The facts of the case suggest that informant was one of the accused or not the victim and in the aforesaid background should have been proceeded with. 7. It has also been submitted that informant had himself disclosed in the fard-bayan that while he was sleeping alone outside his mother as well as Bhabhi were inside. The facts of the case suggest that informant was one of the accused or not the victim and in the aforesaid background should have been proceeded with. 7. It has also been submitted that informant had himself disclosed in the fard-bayan that while he was sleeping alone outside his mother as well as Bhabhi were inside. Even on the following morning, they might have come across the news of absence of informant, Ashok Bhagat and that being so, the normal and natural conduct at their end should be in having contacting his near and dear relatives. There happens to be total lacking of evidence on that very score. Furthermore, it has been submitted that as per Fard-bayan, it is evident that miscreants had disclosed that he (informant) will be released after realization of Rs.50,000/- as ransom amount, which is found unsupported by the accused. That means to say, the story of kidnapping and further, for the purpose of ransom is not found at all substantiated. 8. Now, coming to other part of the evidence, the most crucial evidence happens to be that of PW-3 as well as PW-4, the police officials of Kesariya P. S. under whose leadership, raid was conducted and it is said that PW-1 was rescued. At this very juncture, it has been submitted on behalf of learned counsel for the appellants that story happens to be palpably false in the background of the facts that the police officials, who have had participated as a member of the raiding party have not been properly identified and in likewise manner, there happens to be negligence on the part of the I.O. whereunder the I.O. (PW-5) failed to examine them as well as failed to cite them as a prosecution witness. Furthermore, it has been submitted that PW-3 as well as PW-4 have not spoken with regard to collection of confidential information relating to kidnapping of particular individual that means to say, PW-1 (informant) rather they conducted raid after having been informed regarding activities of anti-social elements. They have not, even during course of their evidence, deposed that at the time of conduction of raid, PW-1, the victim shouted or raised alarm that he has been made captive. That being so, judgment of conviction and sentence recorded by the learned lower Court under Section 365/ 34 of the I.P.C. is non-sustainable. 9. They have not, even during course of their evidence, deposed that at the time of conduction of raid, PW-1, the victim shouted or raised alarm that he has been made captive. That being so, judgment of conviction and sentence recorded by the learned lower Court under Section 365/ 34 of the I.P.C. is non-sustainable. 9. It has also been submitted that with regard to recovery of firearms, different case has been registered. 10. The learned Additional Public Prosecutor while supporting the finding arrived at by the learned lower Court has submitted that when raid was conducted, all the miscreants ran away there from while the informant remained there as it was boon for him on account of presence of police officials, who ultimately resultant in release from captive. Furthermore, it has been submitted that neither I.O. nor PW-1 has been cross-examined on the score whether a substantial case was registered for his kidnapping. Unless and until cross-examination is made, the point cannot be raised as the witness has no opportunity to give an explanation. As such, the judgment impugned is fit to be confirmed. 11. From the evidence of PW-3 as well as PW-4, it is apparent that raid was conducted on account of having confidential information regarding assemblage of anti-social elements and during course thereof, the accused persons fired at the police officials and further, on chase, these two appellants were apprehended along with firearms while remaining succeeded in having their escape. These PW-3 and PW-4 have further stated that they recovered PW-1 (informant), Ashok Bhagat. During cross-examination at Para-7, PW-3 had stated that both the hands of abducted person was tied. His Legs and mouth were not tied. His eye was not tied. PW-4 in Para-17 had reiterated the same. He had further disclosed that the food items having kept there. He had further stated how he along with his raiding party had apprehended both the accused as well as recovered the firearms and also recovered the victim. 12. PW-2 had supported the occurrence, but did not name any of the accused and was accordingly, declared hostile. 13. PW-1 is the victim/ informant. He had reiterated his earlier version during his examination-in-chief. He had further stated that his eyes were covered. Police had removed the cover. Police had also apprehended two persons, who disclosed their identity as Bishundeo Sahani and Dhrub Sahani. 13. PW-1 is the victim/ informant. He had reiterated his earlier version during his examination-in-chief. He had further stated that his eyes were covered. Police had removed the cover. Police had also apprehended two persons, who disclosed their identity as Bishundeo Sahani and Dhrub Sahani. He further stated that after coming to his house, narrated the incidence to his family members. During cross-examination, it is apparent that he had developed some sort of soft corner relating to co-accused. However, while cross-examining on behalf of these two appellants, it is evident that he had narrated in clear tone that he had not seen these two accused since before the occurrence. When police cordoned bamboo cluster at that very time, these two persons was along with them. 14. PW-5 is the I.O., who after getting the Fard-bayan from Kesariya Police Station followed with registration of the case, was entrusted with the investigation. During course of investigation, he had inspected the place of occurrence which happens to be the Baithaka in front of house of Ashok Bhagat. He had gone to Kesariya P.S. and recorded statement of Ram Bilas as well as Kamlesh Singh. But surprisingly, he had not gone nor inspected the real place of occurrence the bamboo cluster where raid was conducted and recovery of PW-1 was effectuated. 15. Furthermore, when the statement recorded under Section 313 of the Cr.P.C. has been gone through, more particularly, relating to these two appellants Bishundeo Sahani as well as Dhrub Sahani, it is apparent there from that the incriminating material relating to apprehension of these two appellants during conduction of raid at bamboo cluster has not been confronted and on account thereof, certainly the interest of the appellants is found at stake. 16. Thus, considering lacking of evidence on the score of taking of any positive step by his family members after kidnapping of PW-1, non-examination of family member of PW-1 by the I.O. at least for corroboration of act of kidnapping for ransom, non- inspection of P.O., a bamboo cluster wherefrom PW-1 was recovered and further, non-confronting of the incriminating material as indicated above, make the judgment non-viable and that being so, the judgment of conviction and sentence recorded by the learned lower Court is set aside. Appeal is allowed. Appellants are on bail, hence, are discharged from its liability.