IN THE HIGH COURT OF JUDICATURE AT PATNA SLA No.92 of 2009 BISHUN KUSHWAHA Versus STATE OF BIHAR & ANR ----------- For the petitioner : Mr. Ravishankar Sahay, Adv. Mr. Vijay Kumar Singh, Adv. For the O.P. No.2 Mr. Zainul Abedin, Adv. For the State: Mr. Ajay Mishra, A.P.P. ---------------- 7. 28.09.2010 This is an application for leave to appeal against the judgment dated 27th July, 2009 of the Judicial Magistrate, 1st Class, Bagaha, West Champaran, in G.R. Case No./Complaint Case No.C383/2003/Tr. No.732/2009 whereby the O.P. Mahendra Gorh, who was tried for the charge under Section 365 of the Indian Penal Code, has been acquitted. The case of prosecution vide F.I.R. lodged by the petitioner/informant Bishun Kushwaha before police was that in the night of 13th October, 2002 at about 12 o’clock while he along with his grand son Chhote Lal Kushwahawa was sleeping at his cattle shed, some persons in police uniform came there and on the point of gun they took away Chhotale lal Kushwara. The informant further alleged that due to fear and darkness in the night, he could not raise any alarm nor he could chase the culprits but subsequently on his hulla villagers assembled but they could also not be able to chase the culprits. In the F.I.R., the informant expressed suspicion that O.P. No.2 Mahendra Gorh with whom he has several litigations might have got the victim kidnapped by criminals. The police conducted investigation into the case and on completion of investigation, final form reporting that a false F.I.R. was instituted and prosecution of the informant under Section 182 and 211 of the Indian Penal Code was also recommended 2 by the police. It was subsequently on 29.1.2003 that the petitioner/informant had filed a protest petition wherein he levelled the accusation against O.P. No.2 Mahendra Gorh and ten unknown persons. On the basis of protest petition, the informant was examined on S.A. and thereafter, on enquiry cognizance of offence was taken and the O.P. was put on trial on a charge under Section 365 of the Indian penal Code. On conclusion of the trial, considering the evidence produced by the petitioner/informant, the learned trial court acquitted the O.P. No.2. During trial, including the complainant and the victim six witnesses were examined by the complainant. The learned trial court has discussed their evidence. The P.w.1 was the victim Chhote Lal Kushwa himself who stated in his evidence that 11 persons in police uniform came with fire-arm and caught him and his grand-father (informant) and they took both of them away but after some distance the grand-father was released. He further deposed that subsequently on cry of the grand-father, villagers assembled but nobody dared to chase the criminals due to darkness. The victim does not say to have identified any of the criminals. He further deposed that he was kept in captivity by the criminals for one month and in the meantime O.P. Mahendra Gorh had come there and asked the criminals to demand ransom and to kill the victim. He has stated that land dispute was going on between his family and Mahendra Gorh and that kidnapping was done due to land dispute. The victim has stated that after one month and three days he escaped from custody. In para-15 of his evidence the victim has named Rudal Yadav, Radha Yadav and Juman Yadav, and Shambhu Bhar stating to have identified them amongst the criminals. 3 The learned trial court did not believe the evidence of the victim as reliable one as it appears that victim says that he escaped from custody after one month and three days but he says that the police did not interrogate him. It appears that he did not go purposely before the police for giving his statement. This witness is grand-son of the informant and when he says that he escaped after one month and three days and came to his house then he must disclose the name of Rudal Yadav, Radha Yadav, Juman Yadav and Shambhu Bhar to his grand- father (informant) whom he claimed to have identified but it is curious that in the protest petition which has come after a period exceeding two months from the release of the victim when the grand-father filed the protest petition, he did not name any of the culprits whom the victim claimed to have identified and only the O.P. No.2 with whom they had land dispute and litigations was named as the culprit. The victim says to have escaped from custody after one month and three days and protest petition was also filed in the case though belatedly and the victim states that his statement was not taken by the police but in this circumstance the informant or the victim would have filed some petition before the learned C.J.M. complaining against the Investigating Officer as was mentioned in the protest petition but nothing was done in this regard. The learned trial court has considered the evidence of P.W.2 who stated that in the night at about 12-1 O’ clock when he woke up for urinating, he saw 12 persons carrying guns on their shoulders and that Mahendra Gorh was one of them who was talking about kidnapping the informant’s grand-son. This witness does not state about any means of identification but the most curious things which 4 appears in his evidence is that subsequently Mahendra Gorh came to him and informed him that informant’s grand-son had been kidnapped away. The learned trial court rightly mentioned that it is not at all believable that a criminal who commits offence of kidnapping will himself go and tell the neighbour of the victim that the offence had been committed. The identification of P.W.2 regarding the O.P. No.2 is not believable in view of the fact that he is not mentioning about any means of identification. One Satish Kumar Rao was examined as P.W.4 and it was stated that he had remained with the victim during confinement. This witness stated that during his confinement, the victim was with him. This witness denies to have any knowledge of land dispute between the victim and O.P. No.2 though he claims to have remained in captivity with the victim but he does not say that the O.P. No.2 had ever come to the criminals and he had asked for demanding ransom as claimed by the victim. The learned counsel for the petitioner submitted that P.W.4 was a resident of different village. No doubt the P.w.4 is a resident of different village but during his evidence while stating about having no knowledge regarding land dispute of the victim with the O.P. No.2 Mahendra Gorh he has not stated that he does not know him. Regarding evidence of P.W.5, the informant who had lodged the F.I.R., the learned trial court has considered that this witness stated that at the time of commission of the offence the criminals had assaulted, dragged and tore the clothes of the victim but the victim does not say anything like this rather he says that out of fear they had not made any protest. He has not said about any kind of assault or dragging. The learned trial court further considered that the victim stated that he had 5 remained in confinement for one month and three days and thereafter, he escaped away but after his escape he did not contact the I.O. nor he even cared to show the place where he was confined. It appears in the evidence also, as was adduced before the trial court in the case, the place or area where the victim was confined has not been disclosed. During hearing, the learned counsel for the O.P. No.2 submitted that in para-48 of the case diary mentions that the victim had produced a ransom letter before the S.P. stating the same to have been sent to him by the criminals but when the S.P. got the same things written by the victim in his pen he found that the writings appeared to be similar, therefore, the S.P. had recommended about falsity of the case. The learned counsel for the O.P. No.2 also submitted that the victim had produced the ransom letter before S.P. on 6.1.2003 and thereafter, seeing falsity of the case having been detected by the S.P. he purposely filed a protest petition on 29.1.2003 as a defense measure. Though, the contents of the case diary under the submission of the learned counsel for the O.P. No.2 is not a relevant fact for deciding the charge in this case which has proceeded on protest petition but the importance of it cannot be ignored. Thus hearing and considering the facts and circumstances of the case, I do not find any perversity and illegality in the order of acquittal as passed by the learned Magistrate. There is no scope for any interference in the order as passed by the court below, therefore, this application is dismissed. (C. M. Prasad, J.) Ravi/-