IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.161 of 1999 ==== Against the judgment and order of conviction and sentence dated 7.7.1999 and 8.7.1999 passed in Sessions Trial No. 136/69 of 1991/94 by Sri Roshan Lall Sharma, 5th Additional Sessions Judge, Nalanda at Bihar Sharif. **** 1. Sunder Raut 2. Biltu Raut 3. Arjun Raut 4. Sitaram Raut 5. Lakhan Raut 6. Baleshwar Raut 7. Dilip Raut 8. Durga Rauit 9. Dhuri Rauit 10. Krishna Rauit … … .... Appellants Versus The State of Bihar ... .... … Respondent ===== For the Appellants: Mr. Neeraj Kumar, Amicus curaie For the Respondent: Mr. S.N.Prasad, A.P.P. ===== P R E S E N T THE HON’BLE MR. JUSTICE MANDHATA SINGH ***** J U D G E M E N T Mandhata Singh, J., Fardbeyan of P.W.7 has been based for F.I.R. which in short is that informant’s husband Sakal Singh was taking meal in his courtyard, 8-10 persons variously armed with Rifle and Gun entered his courtyard, forcibly took him away in spite of informant’s protest. On the hue and cry made by the informant, villagers assembled but remained mute spectator. Abduction is said to be done on instance of accused Sunder Raut as earlier his she-buffalo and two bullocks were stolen and informant’s husband was blamed for the same. Sunder Raut is said an active member of Patna High Court CR. APP (SJ) No.161 of 1999 dt.16-12-2011 2 extremist. He (Sakal Singh) has been found traceless also. After concluding the trial, the case is ended in conviction and sentence to appellants for the offence under section 364/34 of the Indian Penal Code only. 2. In all eight witnesses are examined in the case. They are Ashok Kumar, Ganauri Singh, Ram Swarup Sah, Kailash Paswan, Chunnu Devi, Satendra Kumar, Kalawati Devi and Ramashray Sharma P.W.1 to P.W.8. 3. After scrutinising the conclusion made by the trial court it is pertinent to mention here that the victim of the case Sakal Singh is traceless till today. Of witnesses, P.W.1 Ashok Kumar is a formal witness, P.Ws. 2, 3, 4, 6 and 7 are witnesses to state about taking place of the incident of abduction of informant’s husband by miscreants but without referring appellants’ name. Finding the same not in conformity with their statement under section 161 Cr.P.C. they all have been declared hostile. There is no dispute on the point that part of their (hostile witnesses’) evidence is acceptable and rightly has been accepted by the trial court. P.W.8 is I.O. of the case. 4. Now Chunnu Devi P.W.5 remains only if can be believed for involvement of accused appellants in the incident of abduction of informant’s husband. She is naming all the accused appellants that they abducted her father by describing their entrance in the courtyard and forcibly taking away of her father by them. Credence of her statement has been doubted on behalf of amicus curiae that she is sole witness having no corroboration by any witness nor in corroboration of F.I.R. and whole prosecution case Patna High Court CR. APP (SJ) No.161 of 1999 dt.16-12-2011 3 is doubted on the ground of delay in filing F.I.R. specifying that Police came on next day of the incident as stated by P.W.5 in her statement in paragraph-10 of her cross examination. 5. F.I.R. is to the effect that accused appellant Sunder Raut was blaming the victim for stealing his she-buffalo and bullocks and in chief of this witness it has come that her father was innocent can easily be connected that such blame was baseless otherwise there was no occasion to say that her father was innocent, there appears that fact is missing only. Words are not so strong as act and intention of accused appellants. In her (P.W.5’s) statement it has simply come that if the case was lodged return of her father was impossible and that was possible only on payment of money can be said ransom. So, two things emerged here, first lodging or non-lodging of the case and next payment. Father would not be returned in case F.I.R. was lodged, easily can be said that the victim would be eliminated (killed) and another part is payment of ransom, later it has come that part of the ransom is paid also but not the total amount and victim is not returned. In case of abduction or kidnapping the main purpose of victim’s family is to see the victim’s return and case is lodged only after lost of that hope. In this case that is added by threatening given by accused appellants. So that easily can be taken as reply of non-lodging of the case even after coming to know the disappearance by the Police as stated by P.W.5 in her paragraph 10 of cross-examination. 6. None is named in the F.I.R. only Sunder Raut was Patna High Court CR. APP (SJ) No.161 of 1999 dt.16-12-2011 4 shown inimical that also due to his blame against the victim. Evidence (witness) is to be weighed and not to be counted is the principle. Trial court has also accepted the same in relying the sole witness (P.W.5) though she is corroborated by several others on the point of taking place of the incident. 7. Threatening also plays a vital role in the case that has appeared by the act of accused appellants as one of the witnesses namely P.W.4 has been asked on behalf of accused appellants about threatening given by the I.O. to name them (appellants) that has come in paragraph-4 of his statement that Darogaji asked him to name all accused appellants before the Magistrate otherwise consequence of their involvement and suggestion is there to hostile witnesses from prosecution side that they have gone in collusion with accused persons and were not naming them. So, I find no infirmity committed by the learned trial Judge in accepting statement of this witness (P.W.5) who is daughter of the victim, married only after taking place of the incident to another village so, remained unaffected by act of the accused appellants. 8. Plea of alibi is there on behalf of two of the appellants namely Sunder Raut and Sitaram Raut both are employees of Electricity Department but within the same district and as field worker, other reasonings are also given by the trial Judge need no interference. 9. Now remains the sentence if accused appellants are entitled for any sympathy. Serious nature of offence is not minimized if victim remains absent. Life imprisonment is Patna High Court CR. APP (SJ) No.161 of 1999 dt.16-12-2011 5 also one of the punishments so, ten years’ rigorous imprisonment imposed by the trial court also needs no interference. 10. This appeal is accordingly, dismissed and the judgment and order of conviction and sentence passed in S.Tr. No. 136/69 of 1991/94 is hereby affirmed. As the appellants are on bail their bail bonds are cancelled. Appellants are directed to surrender to serve the rest of the sentence. The trial court is directed to take necessary steps for taking them into custody. A copy of the judgment along with L.C.R. be sent back to the Trial Court forthwith. (Mandhata Singh,J.,) PATNA HIGH COURT Dated 16.12.2011 AI/ AFR