IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.339 OF 2007 Against the judgment of conviction dated 09.03.2007 and order of sentence dated 16.03.2007 passed by Additional District & Sessions Judge, Fast Track Court-IV, Samastipur in Sessions Trial No.270 of 1996. RAJU SINGH, Son of Late Ramdutt Singh, resident of village-Kothia, Police Station-Tajpur Bangra, District Samastipur. RAJESHWAR SHARMA, Son of Shri Yogeshwar Sharma, resident of village-Bisanpur Bathua, Police Station- Tajpur(Pusa), District-Samastipur. .... .... Appellants Versus State Of Bihar.... .... Respondent For the Appellants: Sri Choudhary Shyam Nandan, Advocate For the Respondent: Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The present appeal is directed against the judgment dated 09.03.2007 passed by the Presiding Officer of Fast Track Court-IV, Samastipur in Sessions Trial No.270 of 1996 by which the two appellants were convicted of committing offences under Sections 307/34, 353 and 343 IPC. Appellant Raju Singh was also found guilty of committing the offence under Section 25(1)(b)(a)of the Arms Act. The appellants were heard on sentence on 16.03.2007 and the two appellants were directed to suffer rigorous imprisonment for five 2 years under Section 307/34 IPC whereas each of them was directed to suffer rigorous imprisonment for two years each under Sections 353 and 343 IPC. Appellant Raju Singh was directed to suffer rigorous imprisonment of two years also for his conviction under Section 25(1)(b)(a)of the Arms Act. The sentences passed upon the appellants were directed to run concurrently. 2. As per the prosecution case, P.W.5 S.I. Daya Nath Jha, the officer-in-charge of Bangara police station, came to receive an information that some criminals were hiding in the house of one Deonarayan Singh at village-Dadari Dhanraj and a young man had also been confined after being kidnapped in that particular house. Taking a posse of police force with him, P.W.5 came to the said house of Deonarayan Singh and as per his evidence he found three persons sitting in the west southern room of the house, they were taken into custody and during that course, as per P.W.5 one of the criminals also fired a shot, but that missed the target. On search of the person of the arrested accused nothing was recovered except a country made gun and a few cartridges from the possession of appellant Raju Singh for which seizure memo was prepared and the FIR was lodged on the self statement of P.W.5. 3 3. P.W.5 himself took up the investigation and after close of the same submitted chargesheet sending three persons, namely, the two appellants and one Deonarain Singh the landlord of the house for trial. Deonarain Singh was acquitted by the impugned judgment whereas the two appellants were convicted as narrated in the very outset. I was taken through the evidence of the witnesses by the learned counsel appearing on behalf of the appellants and I find that P.Ws.1 and 2, namely, Mohid Singh and Yugeshwar Manjhi respectively who were witnesses to the search and seizure of the weapons did not support the story of search of the person of appellant Raju Singh or any accused in their presence and as such was declared hostile. P.W.4 Krishna Deo Paswan who was a witness to the occurrence was tendered for cross-examination. P.W.3 Ramsagar Mahto who was the Chaukidar of the village supported the story but appears completely contradicting himself with the evidence of P.W.5, the informant of the case who also investigated it, when he was stating that when the informant had reached along with the posse of police force, three criminals started to run away and they were caught just outside the house, whereas P.W.5 would say in his examination- in-chief that he had found the three criminals sitting in the west southern room of the house and arrested 4 them from there. So far as the story of recovery of young confined abducted man is concerned, there is absolutely no evidence or any other evidence that any abducted person who had been confined in the house was recovered by P.W.5. The worst was that the man who is said to have been recovered was not even produced in court for stating to the above fact. Thus, a grave doubt appears created by the non-production of the material evidence that indeed P.W.5 and his police force were at the house of acquitted accused Deonarain Singh who were performing their official duties, enjoyed upon him as a public servant during which performance he was interfered with illegally so as to causing resistance in performing his public functions. That being so the conviction of the appellant under Section 353 IPC cannot be sustained. 4. As regards the conviction of the appellants under Section 307 IPC, P.W.5 has himself stated in examination-in-chief that one of the three criminals had pulled the trigger to fire a shot but the cartridge miss-fired, he has not specified the names of any of the three criminals who had pulled the trigger. This is one defect in the prosecution evidence as the same suffers from. The next setback which the prosecution appears receiving under Section 307 IPC is on account of illustration(C) appended to 5 Section 307 IPC. As soon as the fact was that the shot had not fired in spite of the trigger being pulled, the act could not be covered as per that particular illustration and, as such, could not be an act which could be punishable by virtue of Section 307 IPC. 5. In that view of the matter, the conviction of the two appellants under Section 307/34 IPC has also to be set aside. 6. No arms said to be recovered from appellant Raju Singh or the ammunitions were produced in the court below. The seizure witnesses simply did not support the factum of search and recovery and the evidence is completely deficient as regards wrongful confinement for which the appellants could be convicted under Section 343 IPC. There is no evidence coming as to who was the person who had been confined for three days or more than that period by the accused persons making it utterly impossible to sustain the conviction of the appellants under Section 343 IPC. 7. The most material defect in the prosecution case was that the informant of the case, like, S.I. Dayanath Jha who was the officer-in-charge of Bangara police station had himself taken over the investigation of the case. It has repeatedly been pointed out by courts that if the police officer is the informant of a case he should refrain from 6 investigating it for the reason that there could always be a possibility that in his enthusiasm for ensuring the conviction of the accused, whom he had sent up through the first information report, he may be creating evidence in investigation to ensure that the accused persons were convicted properly. P.W.5 was the informant of the case and it is no where available on the record that there was no other officer available in that particular police station who could not have been competent to investigate the case. It was utterly unnecessary and in fact appears purposely done that P.W.5 had taken over the reins of investigation so as to creating evidence in support of his charges for ensuring the conviction of the appellants which ultimately was passed by the learned trial Judge. This is the major defect in the prosecution case and that defect accrues a benefit to the appellants. 8. In the light of the discussion of evidence and position of law made herein, I find that the judgment of conviction and the order of sentence passed upon the appellants could not be sustained. The appeal is allowed. The appellants are acquitted of the charges for which they had been convicted. Appellant Raju Singh is in custody. He shall be released forthwith, if not wanted in any other case. Appellant 7 Rajeshwar Sharma is on bail. He shall stand discharged from the liabilities of his bail bonds. Patna High Court, Dated, the 3rd day of November, 2011, Brajesh Kumar, NAFR ( Dharnidhar Jha,J.)