CRIMINAL APPEAL No.175 OF 1988 -------- Against the judgment and order of conviction and sentence dated 7th April, 1988 passed in Sessions Trial No. 51 of 1978/ 187 of 1987 by 2nd Additional District and Sessions Judge, Siwan. ---------- 1. Paras Chaudhary, son of Dudhraj Chaudhary, 2. Bachu Chaudhary, son of Bhajan Chaudhary, 3. Raj Narain Chaudhary, son of Ghamandi Chaudhary, 4. Chandrawa Chaudhary, son of Raj Narain Chaudhary, all residents of village – Garar, P.S. – Ander, District – Siwan, 5. Ram Sakal Chaudhary, son of Late Jageshwar Chaudhary, resident of village – Balli, P.S. – Husenganj, District – Siwan, 6. Chhothu Chaudhary, son of Bandhu Chaudhary, resident of village – Korara, P.S. – Husenganj, District – Siwan …………… Appellants Versus The State of Bihar ………. Respondent ----------- For the Appellants : Shri Neeraj Kumar @ Sanidh, Advocate (Amicus Curiae) For the State : Sushri Shashi Bala Verma, APP ---------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA ---------- Dharnidhar Jha & Akhilesh Chandra, JJ. Six appellants were put on trial in Sessions Trial No. 51 of 1978 / 187 of 1987 by framing charges against them under sections 364 and 302/149 of the IPC. The appellants were found guilty of the two offences and each of them was directed to suffer rigorous imprisonment for ten years under section 364 IPC and 2 rigorous imprisonment for life for their individual conviction under sections 302/149 IPC. 2. The deceased Rama Shankar Kanu, who happened to be the full brother of P.W. 4 Sudama Kanu, was allegedly coming from Gopalganj after attending to a pending court proceedings there. The informant with some others were sitting in some orchard and there the appellants were also sitting with the informant. It is said that when the deceased Rama Shankar Kanu reached there, the appellant Bachu Choudhary put a lathi in the front wheel of the cycle of the deceased, as a result of which, the deceased stopped his cycle. All the appellants, thereafter, surrounded him and took him away along with his cycle. 3. The informant Rama Nand Kanu came and informed P.W. 4 Sudama Kanu who set out on a search of his brother, but could not find him. Subsequently, after a few days, some rumour was afloat came out that a dead body had been located in a particular well situated in the fields and, as such, people went there and found that it was the dead body of the deceased Rama Shankar Kanu which was packed in a gunny bag. This is how the FIR was lodged. 4. On perusal of the evidence of P.W. 14 S.I. Tarkeshwar Prasad who had investigated the case, we find that, in fact, he had learnt from someone that a dead body had been found in the well at the village of the occurrence and, accordingly, he made an entry into the station diary on 10.7.1977 and started for village Hasanpurwa and came to the well which was located in a chaur. He brought out the 3 gunny bag and from inside it he recovered the dead body which was identified to be that of deceased Rama Shankar Kanu. He, thereafter, recorded the fardbeyan (Ext.8) of the informant, on the basis of which the FIR of the case Ext. 7, was drawn up. He investigated the case and, lastly, submitted charge sheet against the appellants. 5. The appellants pleaded not guilty and being falsely implicated on account of many reasons; one of such reasons appears suggested to the I.O. of the case that the appellant Raj Narain Chaudhary was cited as a witness in a criminal case lodged against the I.O. of the case and as such, it could be a case of false implication by the police as well. 6. Fourteen witnesses were examined at the trial in support of the charges, out of whom, P.W. 3 Ram Nath Singh, P.W. 7 Bhikhari Lal, P.W. 9 Ram Pujan Singh were tendered for cross-examination. P.W. 13 Hriday Mallah was declared hostile. As regards the other witnesses, P.W. 8 Jib Nandan Rai was a witness of formal nature with P.W. 10 Parmeshwar Nath Tiwari, P.W. 11 Ram Naresh Prasad and P.W.12 Sharda Nand Rai who deposed to being witnesses to different documents or being acquainted with the writings of P.W. 14 Tarkeshwar Prasad on various documents. As such, they appear witnesses of formal character. Out of the remaining witnesses, P.Ws 1 and 5, i.e. Rama Shankar Singh and Sudama Rai gave evidence on the point of abduction of Rama Shankar Kanu by the appellants and passing on the information about the incident to his brother P.W. 4 Sudama Kanu. P.W. 2 Khakhnu Choukidar and P.W. 4 Sudama 4 Kanu are persons who have testified on the recovery of the dead body kept in a gunny bag from the well and identification of the dead body as that of Rama Shankar Kanu. P.W. 6 Dr. Deena Nath Srivastava had held postmortem examination on the dead body and had prepared the report, Ext. 1. 7. The defence examined a single witness, namely, Gorakh Nath Singh who tendered his evidence testifying the complaint petition. The Court examined a single witness namely Tarak Nath Singh who brought the FIR of the case and fardbeyan on record of the case. 8. Learned counsel for the appellants whose name appears in the daily cause list from many days, did not appear. We were, as such, forced to look for an option. Shri Neeraj Kumar alias Sanidh, learned counsel who was present in court, offered his assistance to us in this appeal and we have heard him as amicus curiae. We have also heard Sushri Shashi Bala Verma, learned APP on behalf of the state. 9. We went through the evidence of the witnesses. P.Ws 1 and 5 are witnesses who have testified on the abduction of the deceased by accused persons. As regards P.W. 5, his claim to identify the accused persons, appears not acceptable in the light of his evidence in paragraph 9 in which he has stated that out of 20-25 accused persons who had participated in the offence of committing abduction of Ramashankar Kanu, he could not identify any one individually though he could know that those persons belonged to different villages. This could be too general an evidence to fix identity of a particular accused as regards his participation in commission of such 5 offence. As regards the evidence of P.W. 1, his evidence also appears not fit to be relied upon because his conduct appears inconsistent with that of an ordinary human being. He has stated that when he found the occurrence being committed he went near the accused but he did not take any step even to raise a halla. He simply appeared to be an onlooker and he did not even go near the accused to protest or to inquire from them as to why they were doing the act with the victim. He has claimed identifying the accused persons but on being cross examined in paragraph 9, he has failed to identify the accused persons as to who was doing what part of the occurrence. 10. Both P.Ws 1 and 5 claimed that they had gone to the house of the deceased to inform his brother, the informant that his brother Rama Shankar Kanu had been taken away by the accused persons, but when we consider the evidence of P.W.4, we find that P.W. 4 has not supported their claim that they had informed P.W. 4 or that P.W. 4 had received information about the commission of offence either from P.W 1 or 5. Instead, P.W. 4 has stated that he had learnt about the occurrence from the informant namely, Ramanand Kanu. Ramanand kanu has not been examined. Evidence was led through P.W. 10 Parmeshwar Nath Tiwari that the informant was dead. As such, the evidence of Sudama Kanu that he had learnt about the occurrence from Ramanand Kanu does not appear safe to be accepted. We further find that P.W. 4 has claimed knowledge about the occurrence from Harihar Sah, but the said Harihar Sah has not 6 been examined. Thus, we find it a case virtually of such evidence as could not legally be acted upon. 11. It is true that Rama Shankar Kanu was killed. Might be that he was abducted too, but in absence of any material indicating as to who had done the acts of abduction and murder, we cannot uphold the conviction and sentence passed upon each of the appellant. 12. In the result, the present appeal succeeds. The same is allowed. The order of conviction and sentence passed upon each of the appellant are set aside. Appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds. 13. Let a copy of the first and last page of the judgment be given to Shri Neeraj Kumar alias Sanidh, learned amicus curiae, for the needful. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High Court, The 26th April, 2010 NAFR/Anil/