1 Criminal Appeal (SJ) No.202 OF 2010 ******* Against the judgment and order dated 05th March, 2010 passed in Sessions Trial no. 786 of 2007 by Sri Md. Shahid Rais, Additional Sessions Judge, Fast Track Court no. V, Ara. ******* 1. NEPAL SINGH 2. VIKESH KUMAR SINGH 3. SUNIL SINGH 4. KRISHNA SINGH 5. RAKESH KUMAR SINGH 6. RAJU KUMAR SINGH ------------Appellants Versus THE STATE OF BIHAR---------Respondent ******* For the Appellants : Mr. Akhileshwar Pd. Singh For the Respondent : Mr. Gajendra Jha No.2 For the State : Mr. Ajoy Mishra, APP ******* P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. Six appellants have preferred this appeal against their conviction for the offences under Sections 147, 148, 323/149 and 452/149 of the Indian Penal Code and sentenced to undergo respectively rigorous imprisonment for one year 2 each under Sections 147 and 148 of the Indian Penal Code and simple imprisonment for six months under Section 323/149 and rigorous imprisonment for three years under Section 452/149 of the Indian Penal Code with a fine of Rs.1,000/-, in default to further undergo simple imprisonment for three months and appellants no.1 and 2, Nepal Singh and his son Bikesh Kumar Singh, further stand convicted for the offence under Section 365 of the Indian Penal Code and sentenced to pay fine of Rs.2,000/- in default to undergo simple imprisonment for three months. However, all the sentences are to run concurrently awarded on 05th March, 2010, by Additional Sessions Judge, Fast Tract Court no.V, Ara in Sessions Trial no. 786 of 2007 arising out of Udwant Nagar P.S. Case no.43 of 2004. 2. The prosecution case, as revealed from Exhibit-4, fard-e-bayan of Sarvanand Singh recorded at 15.30 hours at Udwantnagar Police Station by P.W. 6, R.D. Singh, of Udwantnagar Police Station is that in the previous evening at about 7.30 P.M. his brothers Nepal Singh, Krishna 3 Singh, Kaharwa Singh, Bhagwan Singh and Sunil Singh with whom he has previous land dispute and obtained a decree from Court whereon all his brothers besides Bikesh Kumar Singh, Rakesh Kumar Singh, sons of Nepal Singh, and Raju Singh son of Krishna Singh, claim share inspite of a clear decree of Court in his favour. All arrived at previous night at 7.30 P.M. on 9.03.2004. Nepal Singh had pistol, Bikesh Kumar Singh had Dabia, Sunil Singh Baisakhi, Krishna Singh, Bhagwan Singh, Kaharwa Singh Rakesh Singh and Raju Singh with Lathi, entered into his house and started telling he will not part with the land so kill him and loot every thing. Bikesh Singh gave one Dab blow on his neck but inspite of attempt to save injury was caused on neck, rest with their Lathi and Nepal Singh with butt of pistol started assaulting the informant causing injuries on left arm, left elbow and palm and right knee. He further caused fracture in his right hand. Informant fell down. His wife, Sushila Devi, P.W.3, and son, Dayanand Singh (not examined) due to fear, fled away but younger son, Shivakar Singh, 4 P.W.1, came and lied on him in order to rescue but Vikesh caught hold of him and thereafter said Vikesh Singh took out V.I.P brief case containing ornaments of his wife worth Rs.40,000/-, two bags of rice and one green colour 22” Atlas cycle and left the place of occurrence with all such articles and youngest son, Shivakar Singh. Co-villager, Rajendra Singh, Dayanand Singh (both not examined) and Govardhan Singh, P.W.3, have also seen the occurrence. The farde-bayan was witnessed by P.W.4, Sushila Devi. On the basis of aforesaid farde-bayan Udwantnagar P.S. Case no. 43 of 2004 was recorded for the offences under Section 147, 148, 149, 307, 323, 452, 380, 369 and 504 of the Indian Penal Code. After investigation Police submitted charge sheet no.233 of 2004 for the offences under Sections 147, 148, 149, 323 and 504 C of the Indian Penal Code only om 30.12.2004 only against Sunil Singh keeping the investigation pending against others, against whom subsequently charge sheet was also submitted. But, cognizance was taken for the offences under Sections 364/452 of 5 the Indian Penal Code also besides other Sections. Case was committed to the Court of Sessions and subsequently in the Court of 1st Additional Sessions Judge, Fast Track Court, trial commenced by framing charges against all the appellants and Bhagwan Singh (died during trial) for the offences under Sections 147, 148, 380, 452, 364/149 and 323 of the Indian Penal Code wherein prosecution has examined altogether seven witnesses. P.W.1, Shivakar Singh, victim, P.W.2, Shivanand Singh, informant, P.W.3, Govardhan Singh, P.W.4, Sushila Devi, wife of informant and mother of P.W.1. P.W.5, Satish Chandra, Judicial Magistrate, recording statement of P.W.1 under Section 164 of the Code of Criminal Procedure on 15.7.2004. P.W.6, Rajdeo Singh is the Investigating Officer and P.W.7, Dr.Manoj Kumar Sinha, has examined the informant and proved injury report, Exhibit-6. Apart from the above witnesses examined prosecution has further produced the documentary evidence by way of Exhibits. Exhibit-1 Signature on Statement U/s 164 Cr.P.C. 6 Exhibit-2 Statement U/s 164 Cr.P.C by Sri Satish Chandra Exhibit-3 F.I.R. Exhibit-4 Fardbayan Exhibit-5 Para 95 to 110 of Diary Exhibit-6 Inquiry report 3. Defence has also examined one witness Dhananjay Singh but not not produced any chit of document and, as it appears, the defence is total denial of the allegations but false implication due to previous enmity. 4. The trial court, on consideration of the materials on record, acquitted the appellants from the charge under Sections 380 and 364 of the Indian Penal Code but convicted and sentenced the appellants in the manner aforesaid giving rise to present appeal. 5. It is to be seen in this appeal whether the prosecution has been able to substantiate the charges against the appellants beyond any shadow of reasonable doubt or findings of the court below needs interference. 7 6. The informant, Sarmanand Singh, coming as P.W.2, has changed his statement in paragraph-2, examination-in-chief itself from the statement made in farde-bayan while saying Nepali Singh had Dab and Vikash Singh had country made pistol in their hands and used as weapons to inflict injury upon him. He has proved his signature, Exhibit-1, on the farde-bayan and signature of his wife Exhibit-1/1. About the time of occurrence the witness is consistent had taken place on 09.03.2004 at 7.30 P.M. but at no point of time he took any step to inform Police or anybody whole night but in paragraphs 13 to 16 he says that in next morning at about 10.00 A.M. he left his village on foot to go to Udwantnagar just at a distance of 2 and ½ kilometers and he arrived there at Police Station along with his wife P.W.4 and two sons, Dayanand Singh (not examined) Shivaker Singh (P.W.1) at about 11.00 A.M., stayed there for one hour, proceeded to Primary Health Centre, arrived there where doctor examined him on the basis of Police requisition and immediately referred to Ara hospital. His sons left 8 Udwantnagar Primary Health Centre for village but his wife accompanied him upto Ara where he stayed for four days. There was X-ray and plaster of his arm at Ara and injury reports etc. Issued by the doctors at Ara. But other witnesses like P.Ws 1, 3 and 4 all are consistent on this point that occurrence took place on 09.3.2004 at 07.30 P.M. The doctor, P.W.7, examined the informant, the only injured on 10.03.2004 but at 05.00 P.M. and found following injuries. (i) Swelling with tenderness 5” x 3” on the right arm, colour blackish. Advised X- ray of A.P. and lateral view of right shoulder joint and referred to Sadar hospital, Ara. Opinion reservered awaiting X-ray report. (ii) Scrach 3” x ¼” x 1/4” on the left side of rear upper part of left clevical – colour redish. (iii) Scrach ½” x ¼” x ¼” on rear left elbow joint- colour redish. (iv) Scrach ½” x ¼” x ¼” on rear below right thigh – colour redish. Injuries no.(ii) to (iv) caused by hard and blunt substances and are simple in nature. Regarding age of injury, in the opinion of doctor within six to twelve hours. During cross 9 examination he also sticks on the point of age of injury and further said that all the injuries were caused at the same time. Assessment of the age has been made on basis of the colours of injuries mentioned therein. There is nothing to show that opinion of the doctor as regard to age of injuries may be stretched from maximum of twelve hours to further eight to ten hours. In that view of the matter, it is difficult to accept the prosecution version that any occurrence took place in the evening at about 7.30 P.M. on 09.3.2004 wherein the informant sustained such injuries and when the very initiation of the entire occurrence comes under doubt subsequent developments naturally have same fate. 7. On the point of kidnapping of P.W.1 it is the prosecution version that when informant was being assaulted younger son, P.W.1, in rescue of father, P.W.2, lied on his body then appellant no.2, Vikesh Kumar Singh, caught hold of him and left the place with other articles and the victim who returned, as per P.W.2. in Paragraph 5, roughly two and half months after the occurrene and vide 10 paragraph 8 statement of the victim was recorded by Police when he was produced by this P.W.2. Similarly, P.W.3, Gobardhan Singh, in paragraphs 2 and 3 has said about abduction of victim by Vikesh Kumar Singh and returned after two and half months. P.W.4, mother of the victim and wife of the informant, has almost said same thing in paragraph 3 with only improvement that the victim was not only caught hold but given two to four slaps by Vikesh Kumar Singh and he returned two and half months after the occurrence. None of these witnesses have seen anything hapenning with the victim after his abduction during the initial occurrence of assault till his return to the house. Whatever they have stated in their deposition about the dealings with the victim is the informations received from P.W.1, the victim, who is the solitary witness. 8. P.W.1, Shivakar Singh, contrary to statement in farde-bayan states like other witnesses that appellant Vikesh Kumar Singh had small gain and further contrary to farde-bayan and statement of other witnesses he could see Nepal Singh armed 11 with lathi. In paragraph-2 he says that when he found his father being dragged and assaulted he requested Nepal Singh and Vikesh Kumar Singh, on lying on their legs, to leave him but both cught hold of him and took to their house where he was kept confined and subsequently in night all the named accused persons brought him at Peania bridge where one Maruti van was standing under occupation of two unknown persons there where appellant Nepal Singh and Vikesh Kumar Singh with help of two unknown persons brought him at a place, kept confined in a dark room till 25.5.2004 where appellant no.1, Nepal Singh, came on 25.5.2004, had a talk with the two unknown persons to the effect that if the victim is killed his son may loose his job and family will be broken then the unknown persons and Nepal Singh, after untieing the victim through same van brought up to Tiaria Mor where he was left under threats not to raise any alarm. The victim ran towards his house where he arrived at about 4.45 hours and intimated his family members about the happening. Further he says that he could know 12 through his parents about theft of brief case etc. He was brought to Udwantnagar Police Station where his staement was recorded. Again Deputy Superintendent of Police recorded his statement. He further says that just after a month he had to go to Superintendent of Police where he again made statements and thereafter he was brought to the court of Chief Judicial Magistrate where Sri Satish Chandra, Judicial Magistrate (P.W.5) recorded his statement (under Section 164 of the Code of Criminal Procedure). He put his signature and proved the same as Exhibit-1. In cross-examination, paragraph-7, he states about the enmities with the accused persons who are members of his own family being uncle and cousins and reason of dispute is piece of land purchased in the name of his mother, P.W.4. But, so far his own experience in paragraph 9 he says that when he arrived at his house after release it was day hours but when he was released at Tetaria Mor he could not see the exact time but in paragraph 10 he says that it was noon. This goes to show that he was released in day hours at Tetaria 13 Mor and arrived at his house at about 4.45 P.M. in the evening. He further says that he had to cover 3 and ½ hours from the place of his captivity to Tetaria Mor when he released but when his eyes were tied he could not see the other details. In paragraph-11 he was not in a position to say whether he was crossed in market area or not during his journey but at the same time he says from Tetaria his village is at a distance of 3 kilometers. During way there is one Pul where some shops are also. In paragraph-10 he sticks that he was taken out of his house in a black T- shirt and blue full pant and returned with same dress. It was shown to Police but there is absolutely nothing on record. In paragraph-14-03-2011 he says that immediately on his arrival at hous he was brought to Police Station at about 1.00 P.M. If it is so, it is difficult to believe that he arrived at his house at about 4.45 P.M. While he was in his own village and kept in the house of the miscreatns which is at a distance of roughly fifteen meters in between there are some houses but he never raised any alarm nor any one intervened in his rescue. In paragraph 14 19 he says that while he was brought to when he passed through his own dalan but never raised any alarm. During initial occurrence he further says in paragraph 20 that the alarm was raised but none arrived. In paragraph 13 of his cross examination he says that prior to occurrence he was admitted to School but he was not attending rather continued his studies at his home alone. In paragraph 19 he is unable to give any details of two unknown persons undere whose custody he remained for 2 and ½ months and who carried him through that. Throughout in his evidence he has no complain of any ill treatment from the miscreatns or changes of place. Rather, according to him, he was kept confined at one place where he was brought by two unknown and appellants Nepal Singh and Vikesh Kumar Singh and just after 2 and ½ months again Nepal Singh arrived there and he was released after his conversation with two unknown miscreants. Such state of affairs creats doubt about the entire story of kidnapping and keeping the victim confined for about 2 and ½ months without any purpose and 15 his release without any pressure etc. 9. On the contrary, P.W.6, the Investigating Officer, has said about regular chase by Police but could not be able to locate the victim though one of the named accused was apprehended against whom initial charge sheet was submitted but during investigation Police could not find any supporting material with regard to kidnapping of the victim. Consequently, no charge sheet was submitted. Even during trial on careful analysis of statement of the victim, P.W.1, his alleged kidnap is not free from reasonable doubt. 10. As stated earlier, initial story of assault stated by prosecution itself is under dark cloud and alleged kidnapping was part of the same but not free from doubts. It appears difficult to accept prosecution story. No doubt, prosecution has come with the story that accused persons are inimical and have greedy eyes over a piece of land standing in the name of P.W.4 and litigation since before is going on wherein court decree is in favour of the prosecution and delivery of possession has 16 also been effected but inspite of availability there is no documentary evidence. Contrary it is statement of P.Ws. 2 and 4 that over the rooms whereon delivery of possession was effected in pursuance of the decree some of the appellants are still in occupation. This also creates doubt about prosecution version regarding real issue. Moreover, enmity is a double edged weapon. It may cause commission of crime as well as compels other side to do some thing for false implication of the enemies in any crime. But in the instant case I find that the prosecution has not been able to establish that any such offence was committed against them by either of the appellants, in the manner as stated. 11. In the result, the appeal is allowed, conviction and sentence of the appellants is set aside. They are set free from the liability of the bail bonds furnished on their behalf. (Akhilesh Chandra, J.) Patna High Court, The 23rd March, 2011, AAhmad/(NAFR).