CRIMINAL APPEAL (DB) No. 231 OF 2006 CRIMINAL APPEAL(DB) NO. 147 OF 2006 CRIMINAL APPEAL (DB) NO. 209 OF 2006 CRIMINAL APPEAL (DB) NO. 252 OF 2006 CRIMINAL APPEAL (DB) NO. 259 OF 2006 CRIMINAL APPEAL (DB) NO. 663 OF 2006 CRIMINAL APPEAL (DB) NO. 454 OF 2007 ---------- Against the judgment and order of conviction and sentence passed by Sri Mohan Prasad, Additional District & Sessions Judge –cum- P.O., Fast Track Court No. 1, Nalanda in S.T. No. 669/2003, 286/2004 and 392/2004 as also against the judgment and order of conviction and sentence dated 31.1.2007 and 5.2.2007 in S.T. No. 669A/2003. ------------ Chandan Singh, son of Sri Shayam Baran Singh, resident of village Gaudiha, P.S. Noorsarai, District – Nalanda …….Appellant in Cr. Appeal No.231/2006 Kamlesh Singh alias Kamlesh Kumar Singh, son of Shri Sidhnath Singh, resident of village – Lakshan Bigha, Police station – Silao, District – Nalanda ……..Appellant in Cr. Appeal No. 147/2006 Anil Malakar alias Malia, son of Late Jugeshwar Malakar, resident of village – Shyam Nagar, P.S. – Deepnagar, District – Nalanda ………Appellant in Cr. Appeal No. 209/2006 Dilkeshwar Singh alias Tuntun Singh, son of Sri Binda Singh, resident of village – Chanda, P.S. – Athmalgola, District – Patna ……….Appellant in Cr. Appeal No.252/2006 Rakesh Kumar alias Pappu Singh, son of Sri Ram Pravesh Singh, resident of village – Godiha, P.O. Kokalchak, P.S. – Nursarai, District – Nalanda (Biharsharif) ………..Appellant in Cr. Appeal No.259/2006 Babloo Singh, son of Sri Rambrikh Singh, resident of village – Mora Talab, P.S. – Rahui, District – Nalanda ………Appellant in Cr. Appeal No. 663/2006 Ajit Singh, son of Late Yadunandan Singh, resident of village – Shyam Nagar, P.S. – Deep Nagar, District – Nalanda ……….Appellant in Cr. Appeal No.454/2007 Versus 2 The State of Bihar ……….Respondent (in all the appeals) -------- For the Appellants : Sarvashri Shakeel Ahmad Khan, Rajendra Prasad, Shravan Kumar & Rana Pratap Sigh, Sr. Advocates Pramod Kumar, Ritesh Kumar, Satish Kumar Singh, Aruni Singh, Advocates For the State : Sushri Shashi Bala Verma, APP For the Informant: Sarvashri Ashwini Kumar Singh, Senior Advocate Satya Prakash & Pankaj Kumar Singh, Advocates ---------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA ---------- Dharnidhar Jha, J. The present batch of seven appeals have been preferred by one accused each who was put along with others on trial together by framing charges under sections 364A/34 and 364/149 of the IPC. The trial was held in Sessions Trial Nos. 669 of 2003, 835 of 2003, 286 of 2004 and 392 of 2004, besides, Sessions Trial No. 669A of 2003 which was in respect of appellant Ajit Singh. The judgment in the batch of first four cases was delivered by the Presiding Officer of Fast Track Court – I, Nalanda at Biharsharif on 17th January, 2006 whereas that in the last Sessions Trial bearing number 669A of 2003 while it was also delivered by the same learned court, but on 31st January, 2007. The verdict was of guilt of all the accused 3 persons in commission of the offence under sections 364A/34 of the IPC and each of the seven appellants was directed to suffer rigorous imprisonment for life. The appellants have preferred the batch of appeals to challenge the above finding of guilt as recorded by the learned trial judge. 2. The case related to the abduction, for the purpose of extorting ransom, of P.W. 9 Brijnandan Prasad. He appears having a hump- pipe- factory at a place known as village Mora Talab, which was located by the side of NH 31. On 25.3.2003, P.W. 9 had gone to his factory for taking stock of developments there and was coming back home by his scooter bearing number BPZ 6466 and when he had reached south of a bridge known as Baburbanna bridge at about 5.30 P.M., two maruti vehicles overtook his scooter and in that process, dashed against his two wheeler. P.W. 9 fell down and wanted to run away but four persons came out of the vehicle and captured Brijnandan Prasad and forced him to sit into the vehicle. 3. Persons who were working in the surrounding fields, ran towards the road seeing the occurrence. But, the criminals fired shots as a result of which the villagers were scared away. The criminals who were four – five in number, went away by the vehicles towards north and thereafter in the south direction of the by-pass road. 4. The son of P.W. 9, namely, Pradyumn Kumar (P.W.11) was telephonically informed about the incident at his house. He reached 4 the place of occurrence and gathered the details of the occurrence from persons who were working in the fields around the place. The informant Pradyumn Kumar (P.W. 11) stated that he was told that one of the two maruti vehicles was of chocolate colour and that was a van. The other vehicle was a maruti car of white colour which was bearing registration number DL- 2C – 3833. The informant, P.W. 11, stated that his father had been abducted for the purpose of extorting ransom. 5. It appears from the evidence of P.W. 12 Dr. Bindeshwar Pd. Ram who, on 25.3.2003, was deputed as Officer Incharge of Bhagan Bigaha outpost under Rahui police station, that he picked up some rumours at about 17.45 hours about the incident and after making an entry in the station diary vide entry no. 425 dated 25.3.2003, he proceeded towards the place of occurrence along with ASI Dayasagar Sah and a contingent of armed force. He reached NH 31 near Baburbanna and started gathering information about the occurrence when he was told by some of the persons that some unknown persons had abducted Brijnandan Prasad. He recorded the Fardbeyan (Ext. 2) of P.W. 11 Pradyumn Kumar. He, thereafter, sent the same to the police station for registering a case and, accordingly, the FIR of the case (Ext.3) was drawn up against unknown accused persons. He inspected the place of occurrence and from there came to Rajgir in search of the victim. He continued investigating the case and recorded the statements of Nilambar 5 Mahto (P.W.2), Bijay Kumar (P.W.6), Robin Mahto (P.W. 1), Gautam Sah (P.W. 5), Shiv Rajak (P.W. 3), Mahadeo Mahto (P.W. 4). During the course of investigation some names appeared as suspects and, accordingly, on 28.3.2003, a search was made of the house of appellant Kamlesh Singh and a country made rifle was recovered from there. The houses of other accused persons were also searched on suspicion but they were found absconding. P.W. 12 learnt on 31.3.2003 that the victim had been released by his captures and, accordingly, he came to the house of Brijnandan Prasad and recorded his statement and further statement of the informant. 6. He arrested appellants Chandan Kumar Singh, Pappu alias Rakesh kumar and questioned him. He also collected the report on the antecedent of the above noted appellants and put it down in the case diary. 7. P.W. 12 stated that some of the accused persons of the case had come to collect the ransom money from P.W. 9 Brijnandan Prasad at his hump-pipe-factory situate at village Mora Talab and there had been encounter between the police and the criminals and two criminals were called, for which Rahui (Bhagan Bigaha) P.S. Case no. 54 of 2003 under various sections of the IPC and those of the Arms Act was registered on the written statement of the Officer Incharge of Biharsharif police station. That written report was marked as Ext. 2/1 and the FIR drawn up on that basis has been marked Ext. 4/1. The witness further stated that a country made 6 pistol with a few cartridges, both empty and live with yellow polythene bag containing rupees fifty thousand was recovered from near the dead body of one of the criminals and those were seized by preparing seizure memo (Ext. 5). Another country made pistol with four empty cartridges and a cellular phone set was recovered from the dead body of another criminal and those were also seized by preparing seizure memo (Ext.5/1). P.W. 12 stated that the seized money belonged to P.W. 9 Brijnandan Prasad and that was handed over to him after obtaining a Jimmanama which has been marked as Ext. 6 in the case. The motorcycle of P.W. 9 bearing registration number BR 21A 5992 was also found there and that was seized by preparing seizure memo and that was also handed over to the said witness P.W. 9 under a Jimmanama (Ext.6/1). He submitted charge sheet against the accused persons and before that, he got remanded appellants Bablu Singh and Ajit Singh who by that time had been remanded by C.J.M. Patna in Kadamkuan P.S. Case no. 329 of 2003 while he handed over the charge of investigation in respect of the remaining part of it to his successor SI Bindeshwar Prasad Rai on account of his transfer. 8. As may appear from the above narration of some of the facts of the case, appellants were not named in the FIR and their names appeared by and by in connection with the offence and the police arrested them or got them remanded in the present case. 7 9. On perusal of the evidence of P.W. 9, we found that several suggestions were thrown at him, like, those in paragraph 85 at page 97, paragraph 87 at page 98, paragraph 95 at page 101 and paragraph 113 at page 106 of the paper book. It appears that the defence was not taking any chance and was suggesting all possible theories to P.W. 9. It was suggested to P.W. 9 as may appear from the above noted paragraph 85 that one Balram Singh, Principal of Pairu Mahto Somari College, was inimically disposed towards the appellants Kamlesh Kumar and as such, had got him implicated falsely. Another suggestion was given by appellant Bablu Singh in paragraph 87 of P.W. 9 that the said appellant had once thrashed P.W. 9 on certain trifle matters which created annoyance in him and, as such, P.W. 9 had falsely implicated appellant Bablu Singh. Further suggestion was that it could be the informant of the case, i.e., Pradyumn Kumar, son of P.W. 9, who had certain dispute and differences with his father, the victim of the offence, on account of certain family and business matters and as such, it might be the artfulness of P.W. 11 that the victim had been kidnapped. In paragraph 113, it was suggested that the sister of the appellant Ajit Singh had filed criminal case against the Officer Incharge of Deep Nagar police station in which the said police officer had been summoned by the court and as such, the said appellant was falsely implicated. 8 10. In support of the charges, the prosecution examined twelve witnesses. P.W. 1 Robin Mahto, P.W. 2 Nilambar Mahto, P.W. 3 Sheo Razak, P.W. 4 Mahadeo Mahto gave one line evidence before the court that they did not know anything about the occurrence and as such they were declared hostile and were subjected to cross examination by suggesting several facts which had been stated by each of them to the police during investigation. P.W. 5 Gautam Sah was also declared hostile but he stated that when he had come from out side to his village, then he learnt that Brijnandan Prasad had been abducted and taken away. He stated as to who abducted him, he cannot say and further that he had come back to his village one day after the occurrence. This witness was also subjected to cross examination to his previous statements made by him during the course of investigation. P.W. 6 Bijay Kumar was also declared hostile as he also gave one line evidence that he did not know anything about the occurrence. 11. As regards P.W. 7 Sanjay Kumar, P.W. 8 Dhananjay Kumar and P.W. 10 Yatindra Kumar, they have not given any statement as eye witnesses to the occurrence but they have stated some facts indicating that P.W. 9 had been abducted and taken away by criminals. P.W. 7 has stated that he was at Soh Sarai Adda and was taking tea when P.W. 11 Pradyumn Kumar rushed out of his house stating that his father had been abducted, which occurrence had taken place near the bridge situated at village Baburbanna. P.W. 7 9 stated that he along with Dhananjay (P.W. 8), Nand Kishore (not examined), Yatindra Kumar (P.W.10) and others came to the bridge at Baburbanna by scooter. Pradyumn Kumar came by motorcycle and Nand Kishore (not examined) and Yatindra Kumar also came by another scooter. P.W. 7 stated that he found about one hundred fifty persons assembled there and further that the scooter of Brijnandan Prasad was lying east of the road. It was bearing registration number BPZ 6466. The persons who had assembled, were speaking out that four/five persons had come by a white colour maruti car as also by a chocolate colour maruti van and after taking Brijnandan Prasad into the maruti vehicle they sped away towards south of Pichasa and disappeared into the by-pass road. The car was bearing registration number DL 2C 3833. P.W. 7 stated that P.W. 12 also reached there and, accordingly recorded the statement of Pradyumn Kumar (P.W.11) over which P.W. 7 signed as a witness. The signature of P.W. 7 has been marked as Ext. 1. P.W. 7 stated that he along with P.W. 11 and others proceeded towards Pichasa mor and further south of it on the by-pass road, but could not get anything except that some persons were seen going in a maruti car and that the car had been seen moving on that road for last two/three days. They further stated that the car was in occupation of appellant Chandan Singh, Ajit Singh, Bablu Singh and Pappu Singh. 12. I find from the cross examination of P.W. 7 that it was suggested to him in paragraphs 4 and 5 that he had not made any 10 statement before police, which he made before the Court. What I further find is that the statement of P.W. 7 had been recorded by P.W. 12 as may appear from the evidence of P.W. 12 in paragraph 5 at page 145 of the paper book. What appears curious to me is that in spite of having suggested that the witness had not made any statement to the police, no effort was made by the defence to seek corroboration of those facts which were brought on record under section 145 of the Evidence Act by getting it proved from the I.O. of the case, P.W. 12 under section 157 of the Act. Thus, the only inference which could be raised by the above conduct of the defence is that the witness had stated all the facts before the Investigating officer. 13. In cross examination, P.W. 7 has stated that he was residing in the neighbourhood of the informant and he was unemployed and as such, was imparting tuition to students. He was residing in the rented house of one Singheshwar Prasad and Kisun Sah. On considering the evidence of P.W. 7, what I find is that he was fully acquainted with the surroundings not only of the house of the victim Brijnandan Prasad but, he was also well acquainted with the topography of the place of occurrence as may appear from his evidence in paragraph 6 as he has stated as to what was the name of the place on the by-pass road where he had met some persons. He appears to me a competent witness who was all along with the informant and others at the scene of the occurrence. 11 14. P.W. 8 Dhananjay Kumar has supported P.W. 7 and has stated that he had gone to the Adda chowk to purchase vegetables where the informant came and stated that his father had been abducted near Baburbanna-bridge. Upon that information, P.W. 8 and Sanjay (P.W. 7) started by scooter whereas other persons also started by other vehicles and, accordingly, they came at the place of occurrence where people stated to the witnesses as to how Brijnandan Prasad had been abducted by being taken in a maruti car bearing registration number DL 2C 3833. P.W. 8 has also stated that he and others went in search of the victim but could not find him. This witness has been cross-examined on his callings as may appear from paragraph 5 and I find that his evidence is reliable. He has stated that on reaching the place of occurrence he found the scooter lying east of the road in its earthen part and there was no shop there. He appears an honest person as he has stated that people who had assembled there, were not known to him and they were telling P.W. 8 and others about the occurrence. P.W. 8 was also suggested in his cross examination that he had not made any of the statements before the police which he made in the court. But, again I find the same position as I have recorded in the case of P.W. 7 that P.W. 12, the I.O. of the case was never cross examined, though he was the officer who had recorded the statement of P.W. 8. 12 15. P.W. 9 Brijnandan Prasad is the informant of the case and he has supported the occurrence. I shall discuss his evidence a little later. 16. P.W. 11 Pradyumna Kumar is the informant of the case and son of the victim P.W. 9. He has reproduced the same facts which was stated by him in his fardbeyan (Ext.2) that while he was at his house in the evening of 25.3.2003 he was informed telephonically that his father P.W. 9 Brajnandan Prasad had been abducted from a place south of Baburbanna bridge and, as such, he rushed out of his house shouting that his father had been abducted. He came to Baburbanna bridge by his motorcycle where some persons had already assembled and the scooter of his father bearing registration number BPZ 6466 was lying there east of NH 31. He learnt from persons assembled there that while his father was coming from Mora Talab and had reached south of the bridge a white maruti car bearing registration number DL 2C 3833 came from behind and dashed against the scooter of the victim, as a result of which he fell down with his two wheeler. The criminals forced him to sit in the car. Seeing the incident, the persons who had assembled there and who were, in fact, working in the nearby fields, pointed out to P.W. 11 that they rushed towards the place of occurrence but the criminals fired, as a result of which they had to stay back. They further stated to the informant that the maruti car was followed by a chocolate-colour- maruti-van and both the vehicles sped away south 13 of the by-pass. P.W. 11 stated that P.W. 12, the I.O. of Bhagan Bigaha outpost came there and recorded his statement. Thereafter he got the scooter picked up and sent it through a boy of his mohalla to his house and went in search of his father, but could not get any clue. P.W. 11 has further stated that on 28.3.2003 while he was sleeping in his cloth shop in Soh Sarai he received a call and on picking up the same, the caller wanted to know who he was, upon which, the informant stated that he was the son of P.W. 9 Brajnandan Prasad. P.W. 11 stated that he heard the sound on the phone which was ordering his father to tell him to arrange for rupees ten lacs and hand over the same to his men at a fixed place, else they would kill the victim. He stated that his father asked him to arrange for rupees ten lacs and pay the same to the criminals, else they would kill him, to which P.W. 11 replied that it was beyond his means to arrange that much of money and further, that he had only rupees twenty thousand with him. It was stated by P.W. 11 that the criminal on the other end, told him that he would just see as to how the money could be arranged and thereafter P.W. 11 heard on the telephone line that some one was asking the other criminal by name Bipin to beat up the victim and he further heard that his father was being assaulted and he was weeping and wailing. P.W. 11 was further told by the criminals that if money was not arranged in 2 – 3 days, then his father would be killed, upon which, P.W. 11 replied that he was unable to arrange that amount of money. Another call on 14 the telephone of the informant was received by him in the night of 30.3.2003 and the caller who was one of the criminals, asked him as to whether he had arranged for the money, upon which he replied that he was unable to do so and the phone was disconnected. His father came back to his house on 31.3.2003 at about 10 A.M. and stated to him as to how he was picked up by the criminals for being abducted and how he was taken into the orchard and from there to a secluded room and from there to the forest during nights. His father also stated as to how the criminals made two telephone calls to the informant asking him to arrange for money and how he was beaten up by 2 – 3 criminals on that particular day. The victim stated to P.W. 11 that it was appellant Ajit Singh who used to give telephone calls to the informant and Bipin Singh along with two – three others used to assault him. He has further stated that he was released by the criminals only when he had promised to pay rupees four lacs fifty thousand in two installments to them. The victim stated to his son that a criminal named Malia used to bring food for him and the criminals and he had been promised to get rupees fifty thousand out of ransom money and further that while he was being released, he was given rupees twenty as fare for going to his house. The victim had stated to the informant, his son that among the criminals three persons were already known to him and they were appellants Bablu Singh, Chandan Singh and Balkeshwar Singh and while he was in the captivity of the criminals, he could pick up the name and 15 identities of other criminals like Ajit Singh, Kamlesh Singh, Pappu Singh, Malia, Bipin and Munna Singh. The victim, thereafter, narrated to the informant the incident which took place on 25.3.2003 when some criminals came to collect the ransom which was demanded by them after release of the victim in which two criminals were killed. 17. The cross examination of P.W. 11 does not indicate that there can be anything to discredit his evidence in examination in chief rather the evidence in cross examination of P.W. 11 makes his evidence more effective. He was put questions as to the places from where he had received telephone calls at his house as also at his shop and to that question, he replied that he cannot say the place from where the calls were made to him but he was later told by his father as to by whom and from where those calls were made at his house and shop. 18. P.W. 10 Yatindra Kumar and P.W. 8 Dhananjay Kumar have also given the same evidence as was given by P.W. 7 Sanjay Kumar and P.W. 11, the informant of the case that they came to the place of occurrence and learnt about the abduction of the victim Brajnandan Prasad and also learnt about the whole of the incidents from persons assembled there.