CRIMINAL APPEAL No.1019 (DB) OF 2007 ----- Against the judgment of conviction dated 16.07.2007 and order of sentence dated 23.07.2007 passed by Sri Ravindra Prakash Sinha, Additional Sessions Judge, Supaul in Sessions Trial No. 86 of 2002. ----- 1.RAVINDRA KUMAR @ BUCHAN YADAV SON OF SRI DHUDHAR PRASAD YADAV 2.SHYAMNANAND YADAV SON OF LATE BHANJI YADAV both resident of Mauza Rampur,P.S.Pipra, District Supaul ----- Appellants Versus THE STATE OF BIHAR ----- Respondent ----- For the appellants : M/s S.M.Shabbir Alam and Sanjay Sinha For the informant : Mr. Upendra Kumar Chaubey For the State : Mr. Ashwini Kumar Sinha, APP ----- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH ----- S.K.Sharma & D.K.Singh,JJ. The two appellants have challenged the judgment of conviction dated 16.07.2007 and order of sentence dated 23.07.2007 passed by learned Additional Sessions Judge, Supaul in Sessions Trial No. 86 of 2002 whereby and whereunder both the appellants have been convicted for the offences under Sections 364,302 and 120B of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life under Sections 364 and 302 of the Indian Penal Code, under each count but no separate sentence was awarded for offence under Section 120B of the Indian Penal Code. The sentences passed were directed to run concurrently. 2 2. The prosecution case started rolling with the written report of Radhey Shayam Yadav (P.W.23) addressed to the Officer-in-charge, Pipra Police Station to the effect that the informant is a resident of village Rajpur, Tola Bela, P.S.Pipra, District Supaul. On 4.12.2001 at 9.30 P.M. Shyamanand Yadav, resident of village Rampur, Mukhiya of Rampur Panchayat came on his jeep and asked the informant‟s brother Sitaram Yadav as to why he submitted application against him to the Superintendent of Police and the District Magistrate, Supaul. Thereafter Shyamanand Yadav threatened to kill the informant‟s brother Sita Ram Yadav. When brother of the informant tried to flee away, Shyamanand Yadav aimed his rife and threatened to kill the brother of the informant, if he would move any further. In the meantime, the bodyguard of Shyamanand Yadav, Ravindra Kumar alias Buchan Yadav and two unknown persons caught hold of the informant‟s brother and forcefully boarded him on the jeep and took him away by assaulting him. Thereafter the informant went to the village and informed the villagers about the occurrence. The informant 3 and other villagers went to the police station and intimated the police that his brother has been kidnapped with the intention to murder. On the basis of the written report, Pipra P.S.Case No. 122 of 2001 was registered on 5.12.2001 at 3.15 A.M. for offence under Section 364/34 of the Indian Penal Code but subsequently on the recovery of dead body of Sita Ram Yadav on 8.12.2001, Section 302 of the Indian Penal Code was also added. The police after investigation submitted chargesheet under Sections 364,302 and 120B of the Indian Penal Code against both the accused persons. Thereafter cognizance was taken and after commitment, charges under Sections 364, 302 and 120B of the Indian Penal Code were framed against both the accused. 3. The prosecution in order to substantiate the charges examined 53 witnesses, out of whom, P.W. 3 Subhash Kumar and P.W. 5 Prakash Kumar are the sons of the deceased, P.W.23 Radhey Shyam Yadav is the informant and brother of the deceased, P.W.42 Sunita Devi and P.W.44 Anita Devi are sisters- in-law of the deceased, P.W.7 Dinesh Yadav, 4 P.W. 12 Damodar Sharma, P.W.17 Dashrath Mukhiya, P.W.18 Mahendra Mandal and P.W.19 Nilu Mukhiya alias Fago Mukhiya are witnesses of the first stage of occurrence i.e., the abduction. 4. P.W.27 Jagdish Yadav, P.W.51 Deo Narayan Yadav (both brothers of the deceased) and P.W.50 Ram Dular Sharma, have been examined as hearsay witnesses on the point of abduction. 5. P.W. 52 Dhanraj Mahto is the Investigating Officer and P.W. 53 is Dr.Binod Bhushan Seth who conducted post mortem over the dead body of the deceased. 6. In course of investigation, the statements of nine persons namely, P.W.3 Subhash Kumar, P.W.5 Prakash Kumar, P.W.7 Dinesh Yadav, P.W.12 Damodar Sharma, P.W.15 Jayram Mandal, P.W. 18 Mahendra Mandal, P.W.21 Anil Kumar Yadav, P.W.23 Radhey Shyam Yadav (informant) and P.W.28 Bechan Mukhiya, were recorded under Section 164 of the Code of Criminal Procedure, out of which P.Ws. 21 and 28 have been declared hostile. 7. Out of 53 prosecution witnesses, 36 witnesses have been declared hostile. They are : P.W. 1 Mohan Kumar Mandal, P.W.2 Jagdeo 5 Mandal, P.W.4 Upendra Paswan, P.W.6 Yoganand Mandal, P.W.8 Tej Pratap Singh, P.W.9 Mahendra Kumar Mandal, P.W.10 Visheshwar Mandal, P.W.11 Gulab Mandal, P.W.13 Indra Bhushan Indu, P.W.14 Satya Narayan Mandal, P.W.16 Mithilesh Kumar, P.W.20 Rajendra Kumar Yadav, P.W.21 Anil Kumar Yadav, P.W.22 Binod Kumar Yadav, P.W. 24 Ashok Kumar Chaudhary, P.W. 25 Madhusudan Mandal, P.W.26 Parmeshwari Mandal, P.W.28 Bechan Mukhiya, P.W.29 Prem Narayan Sah, P.W.30 Vidya Nand Jha, P.W.31 Parmeshwari Choudhary, P.W.32 Chutahru Yadav, P.W.33 Mishri Lal Yadav, P.W.34 Ravindra Kumar alias Hero, P.W.35 Dharmendra Kumar alias Bablu Chaudhary, P.W.36 Ram Prasad Yadav, P.W.37 Nago Mandal, P.W.38 Arun Kumar, P.W.39 Ram Chandra Pd.Yadav, P.W.40 Umesh Yadav, P.W.41 Shukdeo Paswan, P.W.43 Anil Kumar Yadav, P.W.45 Sikandra Prasad Yadav, P.W.46 Mishri Lal Yadav, P.W.47 Arun Yadav and P.W.48 Kamleshwari Poddar. 8. Out of 17 witnesses who supported the prosecution case, P.Ws. 3, 5, 23, 42 and 44 are related and interested witnesses. P.Ws. 3 and 5 are sons of the deceased. P.W.23, the informant, is brother of the deceased. P.Ws. 42 6 and 44 are sisters-in-law of the deceased. 9. P.Ws. 7, 12, 17 and 18 are co- villagers against whom the defence alleges enmity due to the fact that appellant Shyamanand Yadav being Mukhiya started anti- encroachment drive from the public land which is sought to be proved by the documentary evidence (Ext.F). 10. The defence has also examined 21 witnesses, out of which D.W.4 Deo Narayan yadav and D.W.5 Rajendra Yadav have deposed that the victim Sitaram Yadav took liquor at their residences at village Manpur and Barhari, respectively, and thereafter the victim requested these defence witnesses to proceed village Taraha to see the dance. D.W.18 Hattan Sharma alias Haran Sharma and D.W.19 Deep Narayan Mandal alias Debu Mandal are the witnesses to the fact that the victim Sitaram Yadav was coming on road in a drunken condition and got dashed with truck. 11. Learned trial court relying on the evidences of the prosecution witnesses held the appellants guilty and convicted them for offences under Sections 364, 302 and 120B 7 of the Indian Penal Code and sentenced them accordingly, as stated above. 12. Now this Court has to examine, on reappraisal of the evidences, as to how far the prosecution witnesses have been able to prove the charges beyond the shadow of all reasonable doubts. 13. The death of victim Sitaram Yadav is an admitted fact. What is in dispute is the place of occurrence and manner of occurrence. 14. The prosecution case is that the victim Sitaram Yadav was first kidnapped and then assaulted at the house of Md.Hashim Khan and subsequently, he was killed, whereas the defence of the appellants is that the victim was killed in a road accident as after death of the victim, the present F.I.R. was lodged with the allegation of kidnapping only, moreover,the appellants were implicated due to political rivalry and animosity with the prosecution witnesses due to anti-encroachment drive undertaken by appellant Shyamanand Yadav and above all the post mortem report does not corroborate the allegation leveled by the prosecution. 8 15. So far as the place of occurrence is concerned, the first information report reflects only one place of occurrence i.e., the door of the deceased Sitaram Yadav, in village Rampur. Subsequently, two other places of occurrence have also been disclosed and evidence to that effect has also been led. The second place of occurrence is the door of D.W.17 Md. Hashim Khan at village Shyam Nagar where it is alleged by P.W.15 Jayram Mandal and P.W.18 Mahendra Mandal that they saw the victim being assaulted by the appellants and others. The third place of occurrence is the eastern flank of Pipra Singheshwar road, 100 meter north to village Katarha in Mauza Birbanna, P.S.Singheshwar, District Madhepura, from where the dead body of the deceased was recovered. 16. P.Ws. 3, 5, 7, 12, 17, 18, 23, 42 and 44 are witnesses to first place of occurrence and P.W.52, the Investigating Officer has inspected two place of occurrences. One is the door of the victim and second is eastern flank of Pipra Singheshwar Road from where the dead body was recovered. No incriminating material was found from the 9 first place of occurrence. The specific case of the informant P.W.23-the informant, and P.W. 3 Subhash Kumar and P.W.5 Prakash Kumar who are sons of the deceased, is that they were enjoying the bonfire at the place of occurrence when the victim was abducted. Though the Investigating Officer, P.W.52, in paragraph 20 of his evidence has stated that he found the remains of bonfire at the place of occurrence but in paragraph 21 he admits that he did not mention the same in the case diary. D.Ws. 1, 2, 3, 6, 8, 9 and 13 have deposed to the effect that no abduction took place at the first place of occurrence. It is an admitted case that the part of place of occurrence was a muddy road full of dust and the accused persons forcefully lifted and boarded the victim in the vehicle, but surprisingly the Investigating Officer did not find either any dragging marks on the mud road or at the door of the victim. The Investigating Officer while inspecting the first place of occurrence found signs of tyre mark on the north east flank of road in front of the house of the victim but the Investigating Officer has admitted that he 10 could not measure the size of tyre of the jeep standing at the door of Shyamanand Yadav. Hence, the evidence of the eye witnesses or the Investigating Officer (P.W.52), in no way, leads to determine the first place of occurrence at the door of the victim Sitaram Yadav. 17. So far as the second place of occurrence is concerned, which is the door of D.W.17 Md.Hashim Khan, only two witnesses namely, P.W.15 Jay Ram Mandal and P.W.18 Mahendra Mandal have alleged that they saw the victim being assaulted, at the door of D.W.17 Md.Hashim Khan, in the lantern light. The reason for their going at the door of D.W.17 has been the illness of the wife of P.W.15. Both P.W. 15 and P.W.18 deposed to the effect that they went to Dr.Lal Bahadur Mehta for treatment but Dr.Lal Bahadur Mehta has deposed as D.W.10, who denied having treated the wife of P.W.15 or having prescribed any medicine to her. P.W.15 and P.W.18 are the residents of village Amha and the house of D.W.17 Md.Hashim Khan is in village Shyam Nagar where the second occurrence is alleged to have taken place. The 11 evidence of P.Ws. 15 and 18 are not trust- worthy in view of the fact that none of the prosecution witnesses except P.W.15 and P.W.18 have come forward to talk about the second place of occurrence. The learned counsel for the defence has argued that P.Ws. 15 and 18 are the castemen of Bishwa Mohan with whom the accused persons have political rivalry. From the evidence of Investigating Officer (P.W.52), it appears that he never visited the second place of occurrence nor collected any incriminating articles from there. Hence, in our view, the prosecution has failed to prove the second place of occurrence. 18. So far as third place of occurrence is concerned, the Investigating Officer (P.W.52) has inspected this place of occurrence and treated the same as second place of occurrence but has stated in his evidence in paragraph 7 that so far as the second place of occurrence is concerned, it is Pipra Singheshwar road near village Katarha. In paragraph 7, the Investigating Officer has also stated that he found the blood on the western road but the blood was not in collectable 12 condition. The prosecution witnesses as well as the defence witnesses admit this fact that the dead body, having injuries, was found on the road. Hence, so far as the third place of occurrence is concerned, there is no dispute with regard to it from either side. 19. So far as the manner of occurrence with regard to the abduction is concerned, there are two sets of evidence on behalf of the prosecution. One set of evidence, is the evidence of P.Ws. 3 and 5, both sons of the deceased and P.W. 23, brother of the deceased, who claimed themselves to be eye witnesses as they saw the occurrence while sitting at the bon-fire, which gets reflected from F.I.R. also. The second set of eye witnesses are P.Ws. 7, 12, 17, 18, 19, 42 and 44, who claim to have seen the occurrence, but they chose not to raise alarm or inform anybody rather they went to sleep and came to know about the death of the victim, in the next morning. But their claim of being eye witnesses does not get reflected either from the FIR or the evidences of P.Ws. 3, 5 and 23. 20. P.W. 3, in paragraph 18, P.W.23 13 in paragraph 8 have stated that they went to village Rajpur Goath and consulted with Satya Narain Choudhary and then went to police station to lodge FIR which appears to be unreasonable, particularly, in the light of the fact that the consultation was made with persons who had political rivalry with the appellants. Hence, this conduct of the eye witnesses, not only creates doubt about the genuineness of the prosecution version as recorded in the FIR but also it lends credence to the defence version that the allegations have falsely and malafidely been leveled due to political rivalry. 21. P.Ws. 3 and 5, in paragraph 1 of their respective evidences have stated that on 4.12.2001 at 9.30 P.M., they were sitting along with their father (deceased) near the bonfire at their door, when the accused persons came and forcibly abducted their father. 22. P.W.23 is Radhe Shaym Yadav who is informant and brother of the deceased has also stated in paragraph 1 of his evidence that while he was enjoying bon-fire, the accused persons came and forcibly took the victim Sita 14 Ram Yadav and later on he was killed. This witness has further stated that he tried to stop the accused persons but accused Shyamnandan Yadav put his rifle on his chest and threatened him. From the evidence of P.Ws. 3, 5 and 23 it does not appear that any one came near the place of occurrence when the victim was abducted. Moreover, the evidence of the informant P.W.23 with regard to putting of rifle on his chest has not been corroborated by P.Ws. 3 and 5 in their respective evidences. 23. However, P.W.7 Dinesh Yadav, P.W.12 Damodar Sharma, P.W.17 Dashrath Mukhiya, P.W.18 Mahendra Mandal, P.W.19 Nilu Mukhia, P.W.42 Sunita Devi and P.W.44 Anita Devi (both sisters-in-law of the deceased) have claimed to have seen the occurrence of abduction but their conduct appears to be highly unreasonable because they did not inform any one about the occurrence of abduction. Moreover, they went to their respective homes after the occurrence and subsequently, they came to know about recovery of the dead body. It appears unreasonable also because, out of the above seven witnesses, statements of P.Ws. 15 7, 12, and 18, under Section 164 Cr.P.C., were also recorded and in their evidence they have stated that the police took them for getting their statements recorded under Section 164 Cr.P.C., but it appears surprising that when they did not bother to disclose the manner of abduction to any one, how the police came to know about their seeing the occurrence of abduction. 24. The manner of abduction further becomes doubtful in view of the fact that the time of abduction is almost admitted being 9.30 in the night on 4.12.2001. The eye witnesses P.Ws. 3, 5 and 23 have not stated about the presence of other persons at the place of occurrence. 25. P.W.3 in paragraph 15 has admitted that it was a foggy night at the relevant time and the fog used to continue till 9 to 10 A.M. in the morning. Though the informant has denied the assertion of P.W.3 in paragraph 32 of his evidence by saying that it was not an extreme cold night and there was no fog whereas P.W.19 in paragraph 8 and P.W.42 in paragraph 12 have stated that there was dense fog and nobody 16 could see anything at the door. The Investigating Officer (P.W.52) in paragraph 26 of his evidence has also said that there was dense fog in the night. Hence claim of the eye witnesses to have seen the occurrence of abduction appears to be doubtful, more so, in the background of the fact that in spite of alarm being raised by P.Ws. 3, 5 and 23, none came. Hence the claim of other witnesses to have seen the abduction cannot also be relied. In the fardbeyan, the informant did not name other persons as eye witnesses. As such, the conduct of eye witnesses of not disclosing to anyone that they have seen the abduction, impeaches the credibility of their evidence. 26. So far as first part of the occurrence of abduction is concerned, the defence has examined D.W.1 Shiv Kumar Sah, D.W.2 Sampat Lal Yadav, D.W.3 Ashok Yadav, D.W.6 Bechu Yadav, D.W.8 Shivan Sah, D.W.9 Lakhan Sharma and D.W.13 Arbind Kumar Bhagat who are neighbours of the victim Sita Ram Yadav. These defence witnesses have claimed to have been present near the place of occurrence and said that they never saw any jeep coming on 17 the date of occurrence and no abduction, actually took place. These D.Ws. who are neighbours are the most important witnesses on the point of abduction of the victim. Hence their statements cannot be brushed aside so lightly. So the manner of abduction of the victim becomes doubtful as alleged by the prosecution in view of unreasonable conduct of eye witnesses and the evidence of D.Ws. 27. The manner of abduction also gets doubtful in view of the evidence of the doctor (P.W.53) who held autopsy over the dead body of the deceased and he found crushed, fractured and lacerated injuries but none of the injuries are resisting injury which could have been caused when it is alleged that the victim was forcibly taken away while he was trying to escape from the scene. 28. It has been claimed by P.Ws. 3,5 and 23 that they were enjoying the bonfire (ghura). Although the Investigating Officer, in paragraphs 20 and 21 of his evidence, has stated that he had found the signs of bonfire (ghura) but admitted that he did not mention it in the case diary, hence the same carries no 18 relevance. If the Investigating Officer has not recorded in the case diary about the presence of bon-fire (ghura), the presence of P.Ws.3,5 and 23 at the place of occurrence becomes doubtful. 29. Further case of P.Ws. 3,5 and 23 is that the victim was abducted by the accused persons because the victim had complained to the Collector and other officials against them but the prosecution has not brought anything on the record to suggest that any such complaint was ever made by the deceased against the accused persons. Hence, no effort has been made by the prosecution to prove the very genesis of the case of abduction. From the evidence on record it appears that the prosecution has not proved the accusation of abduction beyond the shadow of all reasonable doubts. 30. Other set of witnesses i.e., P.W.15 Jai Ram Mandal and P.W. 18 Mahendra Mandal who tried to suggest through their evidence that while both of them went to bring the medicine for the sick wife of Jairam Mandal, they saw that the victim was being 19 assaulted and dragged at the door of Md.Hashim Khan (D.W.17) at village Shyam Nagar Hatiya at 10.30 P.M. in the night on the alleged date of occurrence. P.W.15 in paragraph 2 of his evidence has stated that he saw Shyamnandan Yadav armed with rifle, Buchan Yadav with rassa and Taffazul Mian with Fatta. Hashim Khan and Becha Master were standing at that place and that the victim Sita Ram Yadav was lying on the ground, while Shyam Yadav, is alleged to have asked to tie Sita Ram Yadav with the jeep, if he was dead. P.W.18 Mahendra Mandal in paragraph 1 of his evidence has deposed that he went to Shyam Nagar Hatiya for taking medicine for the wife of Jairam Mandal but the medicine shop was closed and when he was searching for the doctor, he saw a jeep at the door of Hashim Khan and 4-5 persons were standing there. Shyamnandan Yadav was armed with rifle, Taffazul Mian and Bechu Yadav knife and Buchan Yadav with rassa and all of them were assaulting Sita Ram Yadav. P.W.18 has further alleged in his deposition that Shyamnandan Yadav asked as to whether the victim is dead or alive, on which, Buchan told 20 that the victim should be stabbed by knife and when he did not succumb to injuries, then Shyamnandan Yadav fired from his rifle. Thereafter the victim was tied with rope and he was being dragged through jeep. In paragraph 22 of his evidence, P.W.18 has stated that all the accused persons were assaulting but he could not see whose assault hit on which part of the body of the victim. 31. So far as the manner of assault at the door of the Hashim Khan is concerned, there are only two witnesses i.e. P.Ws. 15 and 18 but surprisingly none of these witnesses disclosed the manner of assault to any of the family members of the victim or to any witness. From the evidence of the Investigating Officer it appears that he never tried to verify or inspect the second place of occurrence where, according to P.Ws. 15 and 18, the assault took place which was the door of Hashim Khan D.W.17 which suggests that the evidence of P.Ws. 15 and 18 was not on same line on which statement under Section 164 Cr.P.C. was recorded. 32. The defence has examined D.W.10 Lal Bahadur Mehta who is a medical practitioner 21 and D.W.12 Md.Daud Khan, the neighbours of Hashim Khan and Hashim Khan himself is D.W.17. D.W.12 in his evidence has stated that he is neighbour of Hashim Khan and on the date of occurrence till 11.00 P.M. he never heard about the occurrence. D.W.17 Md.Hashim Khan has denied that any occurrence took place at his door. 33. So far as the presence of P.Ws. 15 and 18 are concerned, both are residents of village Amha. P.W.15 in paragraph 24 of his evidence has stated that he used to take medicine for his wife from D.W.10 Lal Bahadur Mehta which has been denied by D.W.10 in his evidence, by stating that he never gave any medicine to the wife of P.W.15. Further P.W.15 has stated that he went to bring the medicine alone and returned alone. In Paragraph 27 of his evidence, P.W.15 has stated that the victim was dragged, but the doctor who held autopsy has not found any sign of dragging injury but in paragraph 28, P.W.15 has stated that after seeing the occurrence he went to his house and slept which makes his claim of being eye witness, absolutely unreasonable. In paragraph 22 29 of his evidence, P.W.15 has stated that after two days, the medicine was procured for the illness of his wife, whereas P.W.18 in paragraph 24 has stated that on the next day of