CRIMINAL APPEAL No. 513 OF 2006 AGAINST THE JUDGMENT AND ORDER DATED 07.04.2006 / 10.04.2006, PASSED BY THE 1ST ADDITIONAL SESSIONS JUDGE, SARAN IN SESSIONS TRIAL NO. 548 OF 2002 BALINDRA SAHANI, SON OF SAHDEO SAHANI, RESIDENT OF VILLAGE – SITALPUR, P. S. – TARAIYA, DISTRICT – SARAN, ---------------------APPELLANT VERSUS STATE OF BIHAR --------------------------RESPONDENT ----------- P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE DHARNIDHAR JHA *************** For the Appellant: Mr. Subodh Prasad, Mr. Vijay Kumar, Advocate. For the State: Mr. Ashwani Kumar Sinha, APP ******* Mridula Mishra & Dharnidhar Jha, JJ: The sole appellant, Balindra Sahani has been convicted under sections 364, 302 and 201 of the IPC by 1st Additional Sessions Judge, Saran in Sessions Trial No. 548 of 2002 by Judgment and Order dated 07.04.2006 / 10.04.2006. The appellant has been sentenced RI for life for his conviction under section 364 and 302 IPC and RI for three years for conviction under section 201 IPC. - 2 - 2. The informant, Vijay Singh, P.W. 1, is the father of victim, Raja Babu @ Ganesh, who was kidnapped and killed by unknown persons. The occurrence regarding kidnapping of the victim boy was committed in between 08.30 a.m. to 11.00 a.m. on 14.06.2000, when he has proceeded from his father’s shop after taking choclates and biscuits, which was a routine affair. The boy did not reach to his house, this was noticed by the informant at 11.00 a.m. on the same date. Thereafter, a search was made for the missing boy, but he was not traced out. On 15.06.2000 at 04.15 pm., a Sanha Entry No. 291 was recorded at Taraiya Police Station. 3. Thereafter, the villagers as well as the police were engaged in tracing out the boy, but there was no success. On 18.06.2000, the informant have some secret information from his co-villagers that another co-villagers Dhananjay Singh and Balindra Sahani have kidnapped his 5 years aged son, namely, - 3 - Raja Babu @ Ganesh. On this information, the Balindra Sahani was caught by the villagers and he made confession that on being assured by Thakur Birendra Singh that he and Dhananjay Singh will be paid Rs. 10,000/- (ten thousand) each, the son of the informant was kidnapped, while he was going from the shop to his house. He also confessed that the boy was thereafter brought to the house of Thakur Birendra Singh. He was kept for some time there. Then it was decided that he should be killed or otherwise their secret will be known to others. Dhananjay Singh was of the view that the boy should not be killed, otherwise they will not be able to receive the ransom amount. Finally a letter was written and sent to the informant asking for Rs. one lac as ransom and with this threatening that in case of non-payment of ransom amount, he will get his son’s dead body. Finally the kidnapped boy was strangulated to death and his dead body was brought - 4 - to the dilapidated house of Thakur Birendra Singh and kept on roof of the house covered with grass, acid was also poured on the dead body. 4. On 18.06.2000 at about 19.00 p.m. the Fardbeyan of informant Vijay Singh, P.W. 1, was recorded, after recovery of the dead body and Taraiya P.S. Case No. 54 of 2000 was instituted by Surendra Ram, P.W. 15 under sections 302, 364 and 120 B of the IPC. 5. The investigation of this case was taken up by P.W. 15. The dead body was recovered, just in the form of skeleton, having no flesh or any organ present. However, the inquest report was prepared and the skeleton of the dead body was sent for post- mortem. 6. The post-mortem was conducted by Dr. Sanat Kumar Singh, P.W. 14. 7. The FIR had been instituted against six named accused persons, including Balindra Sahani. - 5 - But the trial was faced by the solitary accused, Balindra Sahani, as other accused persons were absconding and their trial was separated. 8. The prosecution examined 14 witnesses in order to prove charges framed against the sole accused. P.W. 1, Vijay Singh is the informant of the case and father of the deceased Raja Babu @ Ganesh; P.W. 2, Mahesh Singh is the co-villager; P.W. 3, Ganesh Prasad, is also a co-villager; P.W. 4 is Awadhesh Singh, grand father of the deceased and father of the informant P.W. 1; P.W. 5 Bishwakarma Singh is the grand father of P.W. 1, the informant; P.W. 6, Sanjay Singh is the brother of the informant; P.W. 7 Dharmnath Singh is the father in law of the informant and maternal grand father of the deceased, Raja Babu @ Ganesh; P.W. 8, Birendra Singh is the son in law of the informant; P.W. 9, Maheshwar Singh, is co-villager, who was declared hostile; P.W. 10 Mukti Nath Singh is a formal witness, who proved - 6 - the seizure list; P.W. 11 Ram Chandra Prasad is a co- villager, who disclosed that he got a clue from another villager Dasai Sahani regarding involvement of the accused persons in kidnapping and killing of the victim boy. On the information supplied by P.W. 11, Balindra Sahani was over-powered by the villagers and it is said that he made a confessional statement, leading to recovery of the dead body of the deceased; P.W. 12, Ram Chandra Tiwary was declared hostile, since he did not supported the case of prosecution and also stated that he was not examined by the police during investigation; P.W. 13, Pushpa Kumar is a minor girl, who is the niece of the informant. She, in her deposition, has stated that when she was sent by the mother of the deceased Raja Babu @ Ganesh to call him and she went near Jamun tree, she had seen the accused persons taking away Raja Babu @ Ganesh into the house. As per the evidence of P.W. 13, immediately thereafter she - 7 - informed the mother of the deceased about the incident. P.W. 14 is Dr. Sanat Kumar, who conducted post-mortem and found the skeleton to be of a five years aged boy. However, the evidence of the Doctor is very specific on this point that the time of death could not be ascertained and the cause of death also could not be ascertained. P.W. 15, Surendra Ram is the SI of Taraiya Police Station, who investigated the case and submitted charge-sheet. 9. On consideration of entire evidence, it is very clear that there is no eye-witness to the occurrence. Not a single witness has seen, taking away of victim boy by any of the accused persons, except P.W. 13. But the statement of P.W. 13 can not be believed or relied upon, considering the fact that P.W. 15, the Investigating Officer in his deposition has stated that the statement which has been made by P.W. 13 in her deposition, was never disclosed before him. Another reason for not placing reliance on - 8 - the evidence of P.W. 13 is that at the time of the occurrence, she was just above 8 years of age and the fact is that if she actually would have seen taking away the victim boy by the accused persons and she disclosed this fact before the wife of the informant, then there was no reason that the informant and other family members could have waited from 14.06.2000 till 18.06.2000, i.e., the time till the recovery of the dead body of the deceased for institution of FIR naming all accused persons. 10. The deposition of the other witnesses are almost similar. All have stated about the extra judicial confession made by Balindra Sahani before the villagers or before them. They all have stated regarding animosity between accused Thakur Birendra Singh and the informant, P.W. 1. The evidence of all these witnesses have also disclosed that the accused Balindra Sahani was forcibly brought by more than 100 villagers and he was forced to - 9 - make confession. The evidence also indicates that the extra judicial confession was not voluntary. This fact is also indicated in the fardbeyan of the informant, on the basis of which FIR was instituted. Informant has stated that the Balindra Sahani had also received injury on account of assault made by the villagers in order to extract confession from him. The evidence of P.W. 15 is also indicative of this fact that the accused, Balindra Sahani was not produced before the Magistrate for recording his statement under section 164 of the Cr.P.C. Except extra judicial confession made by the appellant, Balindra Sahani, there is no direct evidence against him, connecting him to the crime. The evidence on record can not be treated an evidence against the appellant relating to recovery on the basis of confessional statement of Balindra Sahani, because it was not made before the Police, it was not voluntary and recovery had been made by the villagers prior to his confessional statement - 10 - before the police. 11. The evidence of P.W. 1 in para 11, P.W. 2 in para 4 and other witness like P.W. 3, 6 and 8 is indicative of the fact that the extra judicial confessions was made by Balindra Sahani at 06.30 or 07.00 in the morning and the police reached at 10.00 a.m. The recovery of the dead body had already been made prior to coming of P.W. 15. All the witnesses have stated that the before P.W. 15 had arrived, they have already found out the location of the dead body and it has already been recovered. Subsequently, the confessional statement was made before the police also, but this evidence will not make a case of confession leading to recovery. This fact is also not available against the appellant. 12. P.W. 1 in his deposition has stated that he got a letter delivered by Balindra Sahani through which ransom money had been demanded by the kidnappers. The evidence of P.W. 15 indicated that no - 11 - such letter was ever produced before him and no investigation was made by him on this information. This part of the deposition, if believed could have indicated involvement of the appellant, Balindra Sahani in kidnapping and demand for ransom, but it is not reliable considering the fact that for the first time it was disclosed by P.W.1 in the Court. On the basis of such evidence, it can not be held that actually there was any participation of this appellant, either in kidnapping or killing of the deceased, Raja Babu @ Ganesh. 12. Another reason for coming to this conclusion that the conviction of the appellant, Balindra Sahani under section 364, 302 and 201 IPC is not legal and proper, is that while recording his statement under section 313 Cr.P.C., no question regarding his confessional statement, leading to recovery was put before him. This was the only strong circumstance against him, if proved, then - 12 - there was sufficient reason for his conviction. Since, this circumstance was not put before him and he was not given opportunity to explain this circumstance, it could not have been used against him for his conviction. 13. Considering the entire evidence, we are of the opinion that this is a case of no evidence and there could not have been any conviction of appellant, Balindra Sahani for offences, for which he was actually convicted by the Trial Court and sentenced RI for life. 14. As informed by the counsel appearing for the appellant, this appellant is in jail since the date of the institution of the FIR, i.e., 18.06.2000. The appellant has remained in custody for more than 10 years, in a case in which there is no evidence against him. 15. For all these reasons, the judgment of conviction and sentence, passed against the - 13 - appellant, are set aside and the appeal is allowed. The appellant who is in custody is directed to be released forthwith, in case he is not needed to remain in custody in connection with any other case. Patna High Court, Patna Dated: 13th of Sep., 2010 NAFR / Shashi Kant Mishra (Mridula Mishra, J.) (Dharnidhar Jha, J.)