CRIMINAL APPEAL No.409 OF 1990 (DB) With CRIMINAL APPEAL No. 105 OF 2008 (DB) Against the judgment of conviction and order of sentence dated 24th August, 1990 passed in Sessions Case No. 141 of 1986 by Sri Kashi Nath Roy, 11th Additional Sessions Judge, Munger ********** 1. DHURI CHOUDHARY SON OF PRAYAG CHOUDHARY 2. AMIYA @ ABHIYA YADAV SON OF ROHAN YADAV 3. YADDU @ YADUNANDAN YADAV SON OF RAM SWARUP YADAV ALL RESIDENT OF VILLAGE- KABIRPUR, P.S.- BARBIGHA, DISTRICT- MUNGER ………………………………..……APPELLANTS (in Cr. Appl. No. 409/1990) 1. RAGHUNANDAN YADAV SON OF SRI SARYUG YADAV, RESIDENT OF VILLAGE- KABIRPUR, P.S.- SHEKHOPUR SARAI, DISTRICT- SHEIKHPURA ………………………………APPELLANT (in Cr. Appl. No. 105/2008) Versus STATE OF BIHAR ……………………..RESPONDENT **************** For the Appellants :-Mr. Rajendra Prasad, Sr. Advocate Mr. Pramod Kumar, Advocate Mr. Ritesh Kumar, Advocate Bimal Kumar Datta, Advocate For the Respondent :-Ms. Shashi Bala Verma, APP ********************* P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA S.K. Sharma & A. Chandra, JJ. Criminal Appeal No. 409 of 1990 was filed earlier and it was admitted for hearing. Later on, Criminal Appeal No. 105 of 2008 has been filed by the appellant Raghunandan Yadav, which was initially dismissed, as not maintainable, on the point 2 of limitation. The order of dismissal, on the point of limitation, was set aside by the Apex Court, vide order, dated 20th August, 2010, passed in SLP (CRI) No. 577 of 2010 and this Court was directed to hear the criminal appeal preferred by the appellant Raghunandan Yadav along with the appeal filed by other convicts. Accordingly, above noted appeals preferred by the above named appellants against the common judgment is being heard together and are being disposed of by this common judgment. 2. Above named appellants have preferred these appeals against the judgment of conviction and order of sentence dated 24th August, 1990 passed in Sessions Case No. 141 of 1986 by the learned 11th Additional Sessions Judge, Munger, whereby these appellants were found guilty under Section 364/34 of the Indian Penal Code and they were sentenced to undergo rigorous imprisonment for life. These appellants were acquitted from the charges under Sections 302/34 and 201/34 of the Indian Penal Code. Another accused Naro @ Narendra Singh who was charged under Section 225 of the Indian Penal Code was acquitted. One of the accused Lala Yadav was also acquitted. 3. A written report was given by Janak Paswan ( not examined since dead) to the Officer In-charge, Shekhopur Police Station, Munger on 9.8.1984 at 6 P.M. in which he alleged that his younger son Anandi Paswan was traceless since the night of 3 6th August, 1984. According to the written report, in the evening of 6th August, 1984 Dhuri Chaudhary has called the informant’s son Anandi Paswan from ‘his house’ and was taken to Kabirpur and since then he remained untraced. The informant made search of Anandi Paswan to various relatives but all efforts to trace him remained futile. The informant suspected that Anandi Paswan might have been killed. He further alleged that 2-4 months prior to the occurrence the villagers of Rahicha have entrusted the task of guarding the fields to Anandi Paswan which he was doing faithfully. Some crops were destroyed and this was protested. It was alleged that for that some persons were annoyed. When the informant’s son remained traceless then the informant contacted Dhuri Chaudhary who informed that he along with Amiya Yadav, Raghunandan Yadav, Lala Yadav and Yadu Yadav have killed Anandi Paswan and his dead body has been made to disappear. The informant prayed that the culprits be taken to the task. The aforesaid written report was forwarded to Barbigha Police Station for instituting the case under Sections 364/34 of the Indian Penal Code but the Barbigha Police Station registered the case under Sections 302, 201/34 of the Indian Penal Code vide Barbigha P.S. Case No. 97 of 1984 and investigation was taken up. After investigation the chargesheet was submitted and cognizance was taken. The case was committed to the Court of Sessions where charges were framed against the 4 accused persons. Charge under Section 225 of the Indian Penal Code was explained to the accused Naro @ Narendra Singh to the effect that on 7th August at village Kabirpur he intentionally rescued Dhuri Chaudhary from custody in which Dhuri Chaudhary was lawfully detained for the offences of abduction under Section 364 of the Indian Penal Code and murder under Section 302 of the Indian Penal Code of Anadi Paswan. Five persons including Lala Yadav were separately charged under Sections 364, 302/34 and 201/34 of the Indian Penal Code. The accused persons pleaded their innocence and their defence was that they have been implicated due to enmity from Naresh Mahto and his relatives. 4. The trial court after considering the entire evidences available on record and taking into other facts and circumstances of the case, found the appellants guilty and sentenced them, as stated above. As the prosecution could not prove the charge against Naro Yadav @ Narendra Singh and Lala Yadav, they were acquitted by the same judgment. 5. We have to see whether the prosecution was able to prove the charges against the appellants beyond the shadow of all reasonable doubts or not. 6. In order to prove its case, the prosecution has examined altogether 7 witnesses. They are: Brahmdeo Paswan (PW 1), Chhote Paswan (PW 2), Permeshwar Singh (PW 3), Nand Kishore Singh (PW 4), Ram Brikcha Paswan (PW 5), Bhanu 5 Paswan (PW 6), Munnu Prasad (PW 7). 7. PW 7 is an advocate clerk and he has proved the writing of Naresh Mahto (Ext. 3), therefore, his evidence is only to the extent that the fard beyan was in the writing of Naresh Mahto and with regard to occurrence his evidence is of no use either to the prosecution or to the defence. 8. PW 1 Brahmdeo Paswan is a witness whose name is found mentioned as attesting witness of the FIR. He has stated that on one evening at 5.30 P.M. he was near the river which was situated west to the village. At that time Anandi Paswan was playing football. Dhuri Chaudhary went there. Raghunandan Yadav, Amiya Paswan, Yadu Yadav and Lala Yadav were sitting there. Dhuri Chaudhary called Anandi and Anandi followed him. Other named accused persons, sitting there, have also followed Dhuri and Anandi. They went towards village Kabirpur. Night passed out but Anandi did not return. When all efforts to trace the whereabout of Anandi Paswan turn futile then his father lodged the case. He has further described that when Anandi was found missing then the matter was taken to the Mukhiya but the Mukhiya was not there and in his absence the occurrence was informed to Narendra Singh (since acquitted). Narendra Singh made inquiry from Dhuri Chaudhary. Later on he let him off and Dhuri Chaudhary returned with other accused persons. 9. PW 2 is a hear say witness and he has not seen 6 the occurrence because he in paragraph 2 of his evidence has stated that he came to know about the occurrence later on. Therefore, the evidence of PW 2 is not required to be discussed in detail. 10. PWs 5 and 6 are also not the eye witnesses to the occurrence. PW 5 has given another turn of the occurrence that the place from where Anandi was taken or abducted was within another district. PW 3 is one of the Investigating Officers of the occurrence. He assumed the investigation of this case on 26.12.1984 and had thereafter, submitted chargesheet. The main Investigating Officer of the case is PW 4 who is investigating the case from beginning. In paragraph 1 of his evidence, he has stated that the matter was informed to him by the informant at 2.30 P.M. The fard-beyan is on the record and the first column of the fard-beyan shows that the application was received at the police station at 6 P.M. Variation of time is not too short, 2.30 P.M. and 6 P.M. are quite different parts of time. PW 3 is not an illiterate person rather he is the Investigating Officer of the case and he is saying that the matter was informed to police at 2.30 P.M., which creates doubt regarding the time when the police was informed about the occurrence. 11. The entire prosecution case rests on the basis of inculpatory confession of Dhuri Chaudhary. The inculpatory confession was the main thrust of investigation and the 7 Investigating Officer has made inquiry from a number of witnesses for that because that was the core of the matter. The prosecution case, since the very beginning, was that Anandi was taken away by the accused persons, primarily by Dhuri Chaudahry so this needed investigation. The written report was specific that Anandi was called from ‘his house’ but this version was given a go bye by PW 1 who has stated that Anandi was taken away from the field and so these are two different places which required investigation by PW 4 but he could not explain the ambiguity with regard to place of occurrence and he has stated in paragraph 8 of his evidence that no witness was there to support the contention of the prosecution that the accused persons have taken away Anandi Paswan. This fact has been noted in paragraph 51 of the case diary and according to PW 4, this issue remained unaddressed despite specific investigation. Therefore, the Investigating Officer is specific that information of abduction remained clueless. 12. When the case is based on the evidence of a sole witness then its corroboration is a must. The corroboration may be of common kind but when the assertion is contradicted vertically then grave doubt is created as to whether the occurrence as alleged has occurred or not. Two places of occurrence have come in the case. The first version is that Anandi Paswan was taken away from the house where PW 1 has stated that he saw that Anandi was called from the field. 8 PW 4 made specific investigation and he found no evidence as to whether Anandi was ever abducted but still chargesheet was submitted and the trial has proceeded. The testimony of PW 1 has remained uncorroborated at all. This very statement of PW 4 that he could not found any clue regarding abduction, creates grave doubt as to whether Anandi was ever taken away by any of the accused. Not only that, entire prosecution becomes doubtful, if the evidence of PW 4 is considered. He has assumed investigation and according to him, the matter was reported at 2.30 P.M. This is at variance with the entry made in column of the formal FIR (Ext. 2) which has resulted on the fard-beyan (Ext. 3). Though it has come that some persons have made their statements under Section 164 Cr.P.C. which were marked as Exhibits-4 to 4/3 but the Judicial Magistrate has not been examined and the trial court itself has not relied upon the statements under Section 164 Cr.P.C. Here the specific charge against the appellants was that they have abducted Anandi Paswan son of Janak Paswan on 6th August, 1984 so that he may be murdered and for this the evidence which was required to be brought on the record should have been that Anandi was abducted from the village as charged but the story of abduction has neither been supported by witness in the court nor that version came before the Investigating Officer when he made specific investigation with regard to that. Therefore, the entire occurrence remained shrouded with clouds and the clouds 9 could not be cleared either by the witnesses or by the Investigating Officer. 13. The entire case becomes a mystery and that remained unsolved. The prosecution was bound to establish the charge from beginning but it failed to prove the factum of abduction of Anandi Paswan at all. Almost on the same evidence Lala Yadav has been acquitted by the court and in view of the discussions made above, we are of the opinion that the prosecution has not been able to prove its charge beyond the shadow of all reasonable doubt that the appellants have ever abducted Anandi Paswan. 14. Accordingly, in view of the discussions made above, we hold that the prosecution has failed to prove its charges against the appellants. These appeals are allowed and the appellants are acquitted from the charges. It has been reported that one of the appellants, namely, Raghunandan Yadav of Cr. Appeal No. 105 of 2008 is in custody. He is directed to be released forth with if not wanted in any case. Other appellants are discharged from the liabilities of their bail bonds. (Shyam Kishore Sharma, J.) (Akhilesh Chandra, J.) Patna High Court, Patna Dated 4th January, 2011 Avin/ N.A.F.R.