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2016 DIGILAW 1553 (JHR)

Basudeo Pd. Yadav v. State of Jharkhand

2016-11-19

ANANDA SEN, PRADIP KUMAR MOHANTY

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JUDGMENT : Ananda Sen, J. The appellant Basudeo Pd. Yadav stood convicted for committing an offence punishable under Sections 364 (A)/120 B of the Indian Penal Code and further has been sentenced to undergo imprisonment for life and also to pay a fine of Rs. 5000/-. The aforesaid judgment of conviction and order of sentence has been passed by the Additional Sessions Judge, Fast Track Court No. 7th, Giridih on 3rd May, 2005 in Sessions Trial No. 10 of 2004 (arising out of Gawan P.S. Case No. 26/03, corresponding to G.R. No. 890/03). 2. A first information report was lodged by one Bishnu Sao (PW- 1), S/o Late Toral Sao on 26.05.2003 stating therein that on 25.05.2003 at about 10:00 P.M. his son Santosh Kumar Sao (victim and PW-3) alongwith several other villagers had gone to see “Yagya” at Village Kahuwari by Tractor. The Tractor was being driven by the Driver Damodar Choudhary (PW-4). While returning from the village Kahuwari, at about 01:00 A.M, in the intervening night of 25/26.05.2003, when they reached near Ghaghra Bridge, suddenly 7-8 persons/miscreants, armed with Pistol etc., blocked the road and stopped the said Tractor. One of them, pointed the Pistol towards the Driver and the others took away Santosh Kr. Sao, son of the informant, alongwith them towards the Southern side. The miscreants had covered their faces with towels. It was further mentioned in the fardbeyan that alongwith his son many other persons including Pankaj Sao and one ‘Chandsi Doctor’ were on the Tractor. The informant casted his doubt that his son has been kidnapped for ransom. 3. On the basis of the said written report, Gawan P.S. Case No. 26 of 2003 was registered, against unknown for the offence punishable under Sections 364 (A)/34 of the Indian Penal Code. 4. After completion of investigation, charge sheet was filed in the Court of the Chief Judicial Magistrate under Section 364 (A)/120 B of the Indian Penal Code. After complying all the provisions, the case was committed to the Court of Sessions for trial. Charges were framed against this appellant and he was put on trial as he pleaded not guilty of the charges. 5. The prosecution, in order to prove its case, examined altogether five prosecution witnesses and also exhibited several documents. PW-1 is Bishnu Sao, who is the father of the victim Santosh Kr. Sao and the informant of the case. Charges were framed against this appellant and he was put on trial as he pleaded not guilty of the charges. 5. The prosecution, in order to prove its case, examined altogether five prosecution witnesses and also exhibited several documents. PW-1 is Bishnu Sao, who is the father of the victim Santosh Kr. Sao and the informant of the case. PW-2 is Rajkumar Singh, PW-3 is Santosh Kr. Sao (the victim), PW-4 is Damodar Choudhary, who is the Driver of the Tractor and PW-5 Rati Van Singh, is the Investigating Officer of the case. 6. The prosecution also produced the following documents, which were exhibited by it:- Ext.1- the signature of informant on the Fardbeyan. Ext.1/1-Hand-writing and signature, on the Fardbeyan of S.I. Rati Van Singh. Ext.1/2-Endorsement on the Fard-beyan in the hand writing and signature of Rati Van Singh Ext. 2- Letter dt. 01.05.2003 written by Santosh Kumar. Ext. 2/1-Letter dt. 5.6.2004. Ext. 2/2-Letter dt. 5.6.2004. Ext. 2/3-Letter dt. 1.5.04 Ext. 2/4- Signature of Bishnu Sao on seizure list. Ext. 2/5- Signature of Santosh Kumar on Ext. 2/2. Ext. 2/6- Hand writing of Rati Van Singh on seizure list. Ext. 3- Hand writing and signature of Rati Van Singh on formal F.I.R. 7. After closure of evidence of the prosecution, statement of the accused was recorded under Section 313 of the Code of Criminal Procedure. The accused did not lead any evidence in his defence. 8. After analyzing the evidence, the trial court vide its judgment dated 3rd May, 2005 convicted this appellant/accused for the offence punishable under Section 364 (A)/120 B of the Indian Penal Code and sentenced him to undergo imprisonment for life alongwith fine of Rs. 5000/-. 9. Being aggrieved by the said judgment of conviction and sentence awarded to the appellant, the appellant has preferred the instant appeal. 10. We have heard learned counsel appearing for the appellant and learned Addl. Public Prosecutor appearing for the State. 11. Learned counsel appearing for the appellant submits that the appellant is absolutely innocent and there is no material to convict him for the said offences. He further submits that from the evidence adduced by the prosecution, by no stretch of imagination, this appellant could have been convicted. He submits that from bare perusal of the evidences adduced it can be safely understood that the prosecution has failed to establish any overt act by this appellant. He further submits that from the evidence adduced by the prosecution, by no stretch of imagination, this appellant could have been convicted. He submits that from bare perusal of the evidences adduced it can be safely understood that the prosecution has failed to establish any overt act by this appellant. He further submits that there are material contradictions in the statements of the informant (PW-1) the father of the victim and the statement given by PW-3 the victim, which is fatal for the prosecution. It is also submitted that the material witnesses of the occurrence have been withheld by the prosecution without any explanation which clearly suggests falsity of the prosecution case. He further submits that no independent witness had come forward to support the case of the prosecution to the effect that ransom was given to this appellant by PW-1 and thus the appellant could not have been convicted for the offence under Section 364 (A) of the Indian Penal Code. The element of entering into conspiracy has also not been established by the prosecution and thus there cannot be any application of Section 120 B of the Indian Penal Code. Lastly, he submits that the prosecution has failed to prove the guilt of this appellant beyond all reasonable doubt and as such he deserves to be acquitted. 12. On the other hand, learned APP submits that the evidences of all the witnesses are consistent. He submits that PW-1, the father of the victim has categorically stated that he had paid the ransom to the kidnappers and relying on the evidence of this witness the court below has rightly convicted this appellant. He further submits that the Driver of the Tractor, i.e. PW-4 Damodar Choudhary has categorically stated that the victim Santosh Kr. Sao (PW-3) was kidnapped in his presence. He submits that PW-1 has established the presence of this appellant alongwith others and thus, the conviction of this appellant is absolutely justified and his appeal is liable to be dismissed. 13. We have gone through the entire lower court record including the depositions and exhibits. It appears that the first information report was registered under Section 364 (A)/34 of the Indian Penal Code against unknown. PW-1 is the father of the victim as well as the informant of this case. Admittedly, PW-1 is not the eyewitness to the occurrence of kidnapping. We have gone through the entire lower court record including the depositions and exhibits. It appears that the first information report was registered under Section 364 (A)/34 of the Indian Penal Code against unknown. PW-1 is the father of the victim as well as the informant of this case. Admittedly, PW-1 is not the eyewitness to the occurrence of kidnapping. He, in his evidence, has stated that his son Santosh Kr. Sao alongwith one Rajkumar Singh, Pankaj Sao, Chandsi Doctor and many others went to see “Yagya” on 25.05.2003. He stated that the vehicle was being driven by Damodar Choudhary (PW-4). He stated that on the next day when the persons returned, they informed that Santosh has been kidnapped by the miscreants. He stated that he went to the police station and got his statement recorded. His oral statement was recorded by the police officer and finding the same to be correct he had put in his signature. His signature was marked as Ext.-1. He further stated that after four days of the occurrence, he found a letter which was lying in front of his house. Again one Mahendra Sao brought another letter from whom he came to know that he was called by the miscreants in Dhab Forest. He stated that he alongwith Mahendra Sao and Bhimlal Sao went to Dhab Forest where 10-12 miscreants came and demanded Rs. 10 lakhs from him and they also assaulted him due to which he became senseless. He stated that he could identify this appellant and one Baleshwar Yadav, who were present there alongwith the miscreants. He further stated that after two days again Mahendra Sao came with another letter and requested him to go to the forest area. Again, he (PW-1) accompanied Mahendra Sao and Bhimlal Sao to the same place alongwith ransom money where the kidnappers took the money and he was kept waiting there. At 09:00 PM his son was brought and then both of them returned to their house. The letters, by which the ransom was demanded was proved and exhibited by him. In his cross-examination he stated that he could not identify any of the miscreants save and except two persons, named above. He further stated that when he went with the ransom, this appellant was not present there and he handed over the ransom money to Baleshwar Yadav. 14. In his cross-examination he stated that he could not identify any of the miscreants save and except two persons, named above. He further stated that when he went with the ransom, this appellant was not present there and he handed over the ransom money to Baleshwar Yadav. 14. PW-2 is Rajkumar Singh, who was one of the co-passengers of the victim. He deposed that alongwith him, Pankaj, Chandsi Doctor, family members and the Tractor driver Damodar Choudhary were there who all went to see the “Yagya”. He stated that 7-8 miscreants came armed with weapons and kidnapped Santosh Kr. Sao (PW-3). He categorically stated that he could not identify any of the persons/miscreants who kidnapped Santosh but he stated that Pankaj lateron disclosed that one of the miscreants were Baleshwar Yadav (Co-accused). 15. PW-3 is Santosh Kr. Sao, who is the victim. He stated that he alongwith Rajkumar Singh, Chandsi Doctor, Vinod, Pankaj and other ladies went to see the “Yagya”. While returning, he was kidnapped. He further stated that he was kept in the forest area by the miscreants and was also assaulted by them. He stated that he was forced to write letter to his father and through the said letter Rs. 10 lakhs was demanded as ransom. He also exhibited the letters written by him. He identified this appellant alongwith one Baleshwar Yadav, Suraj Yadav, Suresh Yadav and Maheshwar Yadav as the miscreants. He stated that he came to know from his father that Rs. 1,25,000/- was given as ransom. He stated that he was released in Manihar Forest and after his release he came back to his house. 16. PW-4 is Damodar Choudhary, who was the Driver of the Tractor. He stated that he was driving the Tractor which belonged to the victim. He stated that on 25.05.2003, Rajkumar Singh, Pankaj, Santosh Sao (victim) and several other ladies and children went to see the “Yagya”. While returning, when they reached near Ghaghra River, the Tractor was stopped by 7-8 persons/miscreants, who were armed with weapons. The miscreants took Santosh with them. He stated that lateron Pankaj, who was also a passenger of the said Tractor, disclosed before him that he could identify Baleshwar Yadav as one of the miscreants. He stated that after returning he went to his employer (PW-1) and narrated the entire story. The miscreants took Santosh with them. He stated that lateron Pankaj, who was also a passenger of the said Tractor, disclosed before him that he could identify Baleshwar Yadav as one of the miscreants. He stated that after returning he went to his employer (PW-1) and narrated the entire story. In his cross-examination, he stated that Pankaj only disclosed the name of Baleshwar Yadav as one of the miscreants. 17. PW-5 is the Investigating Officer of the case, who stated that on 26.05.2003 he received rumors that one person of Village Pihra has been kidnapped. On receiving such information, he made station diary entry and went to the village Pirha. He further stated that in the village he recorded the statement (fard-beyan) of the Informant PW-1 and could come to know that his son has been kidnapped. The FIR has been exhibited by PW-1 and was marked as Ext.-1/1. He himself took up the investigation of the case and recorded the statements of the witnesses including the re-statement of the informant. He deposed that on 27.05.2003 he went to the village and could come to know that the miscreants have called the informant and has written letter and demanded Rs. 10 lakhs as ransom. He further deposed that he could come to know that the informant (PW-1), i.e. the father of the victim, was assaulted by the miscreants. He seized the letter, which was marked as Ext.2/6. He stated that he again went to the village on 20.06.2003 and could come to know that the victim has been released by the miscreants and he has returned to his house. 18. The appellant-accused was examined under section 313 Cr.P.C, who completely denied the allegation leveled against him and stated that he is not aware about this incident and he has been falsely implicated in this case. He stated that six months prior to the said occurrence he had already left the village for Delhi. He stated that earlier he was the driver of the victim and when he demanded his dues, he has been falsely implicated in this case. 19. Now, on these evidences, it has to be examined whether the prosecution has been able to prove its case beyond all reasonable doubt. It is admitted that the FIR is against unknown. PW-1, the informant is not the eyewitness. 19. Now, on these evidences, it has to be examined whether the prosecution has been able to prove its case beyond all reasonable doubt. It is admitted that the FIR is against unknown. PW-1, the informant is not the eyewitness. The witness to the occurrence is PW-4, the driver of the Tractor and the victim-PW3. The driver, in his evidence, has stated that unknown miscreants, armed with weapons and pistol, stopped the tractor near Ghaghra Bridge at night and had taken away Santosh (PW-3). He further stated that there were several other persons including Chandsi Doctor, Pankaj, Vinod present in the said Tractor. He further deposed that Pankaj who was one of the copassenger, had disclosed soon after the occurrence that Baleshwar Yadav was one of the miscreants. He deposed that after they returned to the village, he narrated the entire story to his employer, i.e. PW- 1 the informant. Surprising enough, though when the name of Baleshwar Yadav, one of the accused, was disclosed immediately after the occurrence, yet his name did not transpire as accused in the FIR. It is admitted that the name of this appellant was not disclosed by PW-4. As per the evidence of PWs.- 1, 2, 3 and 4 there were several passengers in the said Tractor, who accompanied the victim. It is also surprising that none of those persons were produced by the prosecution as witness to support the prosecution case. The prosecution case hinges solely upon the statement of PW-1 the informant and PW-3 the victim. PW-1 deposed that one Mahendra Sao had brought letters from the kidnappers wherein ransom was demanded. He further deposed that he, alongwith Mahendra Sao and Bhimlal Sao went to the forest and met the miscreants but those two important persons, i.e. Mahendra Sao and Bhimlal Sao have not been produced by the prosecution. He stated that extortion money of Rs. 1.25 lakhs was handed over to the miscreants in presence of those two persons namely, Mahendra Sao and Bhimlal Sao. Again to prove this transaction, neither Mahendra Sao nor Bhimlal Sao was produced as witness. In his cross-examination he has categorically stated that this appellant was not present at the time of handing over the ransom money to the miscreants. He further stated that after receiving the ransom money his son was brought and he alongwith his son returned to their house. In his cross-examination he has categorically stated that this appellant was not present at the time of handing over the ransom money to the miscreants. He further stated that after receiving the ransom money his son was brought and he alongwith his son returned to their house. On this point, it is necessary to draw attention of the deposition of PW-3 the victim. He stated that he was released by the miscreants in Manihar forest from where he returned to his house. He never whispered a single word that he was brought to his father and thereafter both of them returned to their house. From the deposition of PW-3, it is quite clear that he is also not the eyewitness to the payment of ransom. He stated that he could come to know from his father only that Rs. 1.25 lakh was paid as ransom for his release. The only witness to the payment of ransom is Mahendra Sao and Bhimlal Sao, who were surprisingly not produced as witness. 20. PW-5 the Investigating Officer has stated in his deposition that he recorded the fard-beyan of the informant in the village itself, whereas the informant stated in his deposition that he went to the police station where he gave information that his son was kidnapped and there only his fard-beyan was recorded by the police. The Investigating Officer also stated that on 26.05.2003 in course of investigation he went to the village and then only he could come to know that the victim has returned home. From the evidence of PW-1 it is clear that the Investigating Officer was not informed earlier about the payment of ransom. 21. It is well settled now that it is not the number and quantity, but the quality of the witness, which is material. It is the duty of the Court to consider the trustworthiness of evidence on record which inspires confidence and the same has to be accepted and acted upon and in such a situation no adverse inference should be drawn from the fact of non-examination of other witnesses. It is also to be seen whether such non-examination of a witness would carry the matter further so as to affect the evidence of other witnesses and if the evidence of a witness is really not essential to the unfolding of the prosecution case, it cannot be considered a material witness. 22. It is also to be seen whether such non-examination of a witness would carry the matter further so as to affect the evidence of other witnesses and if the evidence of a witness is really not essential to the unfolding of the prosecution case, it cannot be considered a material witness. 22. The issue of non-examination of material witnesses/withholding material witnesses was discussed by the Hon'ble Supreme Court in the case of “Takhaji Hiraji versus Thakore Kubersing Chamansing & Ors., reported in (2001) 6 SCC 145 .” In the said case the Hon'ble Supreme Court has opined that:- “It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinize the worth of the evidence adduced. The Court of facts must ask itself-whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court? If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses.” 23. Thus, from the aforementioned decision it is evident that the facts and circumstances of each case is to be dealt with separately. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses.” 23. Thus, from the aforementioned decision it is evident that the facts and circumstances of each case is to be dealt with separately. In the instant case, applying the said ratio it has to be seen whether it was necessary to examine these two witnesses or not and whether such witnesses were available to be examined and yet were being withheld by the Court? In the instant case, as per the prosecution except PW-1, i.e. the informant, there were other two persons namely Mahendra Sao and Bhimlal Sao, who were reliable witnesses of the prosecution to prove the payment of ransom. These two persons were definitely available to be examined but yet they were withheld. Since, these two witnesses were not examined, the only witness on the point of payment of ransom is PW-1, who is the informant and also the father of the victim. This witness is a highly interested witness and some corroboration was necessary which could have easily been done by producing these two persons namely Mahendra Sao and Bhimlal Sao. Further, this witness is not completely trustworthy. This witness has never informed the police about payment of ransom to the kidnappers, which is evident from the evidence of the Investigation Officer, who stated that only during investigation when he went to the Village, he could come to know that the victim was released. Thus, for withholding these two witnesses an adverse inference can be drawn against the prosecution. Withholding these two persons casts doubt on the prosecution case that ransom was paid for release of the victim. Similarly, on the point of abduction also there were several other independent witnesses namely, Chandsi Doctor, and Pankaj Sao, who were also not produced. The driver of the vehicle was the employer of PW-1 (the informant) and PW-3, i.e. the victim. The driver has not whispered about presence of this appellant. So it was necessary for the prosecution to examine the independent witnesses. Here also the prosecution has withheld the material witnesses. This Court feels, on the peculiar facts of this case, it was necessary to examine the material witnesses named above, who were withheld by the prosecution. The driver has not whispered about presence of this appellant. So it was necessary for the prosecution to examine the independent witnesses. Here also the prosecution has withheld the material witnesses. This Court feels, on the peculiar facts of this case, it was necessary to examine the material witnesses named above, who were withheld by the prosecution. This Court finds that Mahendra Sao, Bhimlal Sao, Pankaj Sao and Chandsi Doctor, who were not examined by the prosecution, are definitely the material witnesses to the occurrence either on the point of kidnapping or on the point of payment of ransom. Except those persons the other witness is only the informant-PW-1 (on the point of payment of ransom) and his son, i.e. the victim-PW-3 (on the point of abduction), who were highly interested witnesses and not fully reliable. Since, on the point of abduction and also on the point of payment of ransom the evidence, which has been led by the prosecution, is not unimpeachable, non-examination of these material witnesses creates dent in the prosecution case. 24. Further, in this case the only material which the prosecution has brought against this appellant, is that he was present in the forest when the informant (PW-1) went for the first time to meet the kidnappers. Similarly, it is admitted fact that this appellant was not present when the ransom was paid to the miscreants. 25. Further, PW-3 the victim says that he was released in the forest and he returned to his house alone, whereas PW-1 the informant says that he brought his son from the forest when the kidnappers released him after receiving ransom. This is also major contradiction, which cannot be overlooked. 26. Though, there were independent witness to prove the presence of this appellant (which is evident from the evidence of PW-1) yet withholding of those two persons, demolishes the prosecution case. 27. Thus, on cumulative effect what has been discussed above, there is serious doubt about the truthfulness of the prosecution case. 26. Though, there were independent witness to prove the presence of this appellant (which is evident from the evidence of PW-1) yet withholding of those two persons, demolishes the prosecution case. 27. Thus, on cumulative effect what has been discussed above, there is serious doubt about the truthfulness of the prosecution case. From the entire evidence discussed above, it can easily be held that the prosecution has not been able to prove the charge against the appellant under Section 364(A)/120B of the Indian Penal Code beyond all reasonable doubts and since the prosecution has failed to prove its case beyond all reasonable doubts against this appellant, the appellant deserves to be acquitted of the charges and the judgment of conviction and sentences passed against the appellant, is liable to be set aside. 28. Accordingly, this appeal is allowed and the impugned judgment of conviction and sentence dated 3rd May 2005, passed by the trial court in Sessions Trial No. 10 of 2004 against this appellant, is hereby set aside. The appellant, who is in custody, is directed to be set at liberty forthwith if not wanted in any other case. Pradip Kumar Mohanty, ACJ. – I agree.