CRIMINAL APPEAL No.512 OF 2003 SHEO BALAK SINGH, son of Late Longi Singh, Resident of village Gangasarai, P.S. Barahiya, District Lakhisarai --------------------------------------------------(Appellant) Versus STATE OF BIHAR--------------------------------------------------(Respondents) With CR. APP (SJ) No.524 OF 2003 KAVI SINGH @ MONTU SINGH @ RAJESH KUMAR, son of Sheo Balak Singh, Resident of village Gangasarai, P.S. Barahiya, District Lakhisarai ---------------------------(Appellant) Versus STATE OF BIHAR--------------------------------------------------(Respondents) For the appellant : M/s Rana Pratap Singh, Sr. Advocate & (in both cases) Sunil Kumar & Aruni Singh, Advocates For the State : Mr. Jharkhandi Upadhaya, A.P.P. (in both cases) Against the Judgment of Conviction dated 11.11.2003 and Order of Sentence dated 12.11.2003 passed by Sri Paras Nath Sinha, the then Presiding Officer, F.T.C., Munger in Sessions Trial No. 425 of 1996, arising out of Barahiya P.S. Case No. 17 of 1992. P R E S E N T THE HON'BLE MR. JUSTICE ABHIJIT SINHA Abhijit Sinha, J. Cr.Appeal No. 512 of 2003 and Cr. Appeal No. 524 of 2003 preferred by Sheo Balak Singh and Kavi Singh @ Montu Singh @ Rajesh Kumar respectively have been taken up together as they arise out of the judgment and order of the same Sessions Trial No. 425 of 1996 arising out of Barahiya P.S. Case No. 17 of 1992 having been heard together are being disposed of by this common judgment. 2 These appeals arise pursuant to the appellants of both the appeals having been convicted under section 364 IPC for allegedly abducting one Rabindra Prasad Singh on 12.2.1992 and consequently each of them were sentenced to undergo rigorous imprisonment for 10 years and also for each to pay a fine of Rs. 2,000/- and in default to undergo simple imprisonment for 6 months. The judgment of conviction was recorded by Sri Paras Nath Sinha, the then Presiding Officer, F.T.C., Munger, on 11.11.2003 and the order of sentence was passed on the following day i.e. 12.11.2003. The prosecution case may be noticed with relevant brevity and is as follows: PW 3 ,informant Devendra Prasad Singh’s brother Rabindra Prasad Singh along with Achut Kumar Singh (PW 4) had gone to Lakhisarai for some personal work on the Hero Honda motorcycle of Achut Kumar bearing registration no. BR – 09(S) 4454 in between 10.30 and 10.45 A.M. on 12.2.1992 but it was only Achut Kumar Singh who had returned at around 11.30 A.M. in an injured condition and informed that while enroute to Lakhisarai they got entrapped by reason of road blockade at village Jaitpur and here some persons forced them to get down from the motorcycle and on their getting down they were mercilessly assaulted and even as he was set free on a presumption that he was an outsider to village Barahiya they took away Rabindra Singh towards the east. He 3 further informed that after some two minutes he heard the sound of firing of two rounds. His motorcycle was also allegedly snatched away. It appears that on receipt of the information from Achut Kumar, the informant proceeded for the police station for lodging information and enroute he met Yadunath Singh (PW 1) who informed him that he was returning from Lakhisarai on a trekker which also had been stopped due to the road blockade and he proceeded to give an eye witness account of the occurrence of kidnapping in course whereof he stated that he had identified Sheo Balak Singh and his son Kavi Singh amongst the abductors. At the Police Station the informant submitted a written report on the basis whereof Barahiya P.S. Case No. 17 of 1992 came to be registered under section 364 IPC against the two accused persons. The investigation was taken up by the S.I. Mahesh Kumar (PW 6) who after due investigation submitted a charge sheet against the two accused persons. Briefly stated the defence case is a denial of the allegations and of false implication as appellant Sheo Balak Singh was a political worker and he had unsuccessfully contested the assembly election and there was an apprehension to his life for which the police administration, on his request, had provided him with security. It was also their case that Kavi Singh had been elected Mukhiya of the locality. There further case is that Tikkar Singh, son of Sindhu Singh, is a hardened criminal and a means of terror in the 4 area and that victim Rabindra Kumar Singh was also a veteran criminal and an accomplice of Tikkar Singh and taking advantage of the abduction of Rabindra Singh the said Tikkar Singh got the accused persons falsely implicated in this case. The further grievance of the appellants is that notwithstanding the prosecution evidence being full of absurdity and inconsistency the witness, as a whole, were unreliable persons and the learned trial court had erred in having relied upon such haphazard evidence. At the trial 7 witnesses including the S.I. conducting the investigation were examined which was reciprocated by the defence by examining two witnesses. Several documents and written arguments was furnished by the defence in support of their bona fide. However, the same allegedly did not cut much ice with the court. Apart from the charge under section 364 IPC the two appellants were further charged under section 379 IPC for committing the theft of the Hero Honda motorcycle and under section 27 of the Arms Act for being in possession of countrymade pistols for using for unlawful purposes. Out of the 7 witnesses examined by the prosecution P.W. 1 (Yadunath Singh) P.W. 2 (Deban Singh) are said to be the eye witnesses of the alleged occurrence. P.W.3 (Devendra Prasad Singh) is the informant and a hearsay witness, P.W. 4 (Achut Kumar Singh) is an injured witness but he has not named any of the two appellants at the earlier stage. P.W. 5 ( Satendra Singh) is a 5 hearsay witness whereas P.W. 6 ( S.I. Mahesh Kumar) is the Investigating Officer of the case and P.W. 7 ( Ram Swaroop Sharma) an Advocate’s clerk has appeared to prove the formal FIR. The submissions jointly made on behalf of both the appellants is that the information regarding the occurrence was gathered by the informant who admittedly was not an eye witness to the occurrence from injured Achut Kumar Singh and later while enroute to the P.S. from Yadunath Singh (PW 1) from whom he derived information regarding the names of the accused who allegedly had committed the offence. Unfortunately neither Achut Kumar Singh nor Yadunath Singh are witnesses in the F.I.R. It also appears that the fardbeyan reached the court of the learned Sub Divisional Judicial Magistrate on 14.2.1992 i.e. after a delay of two days for which no palpable excuse has been offered by the prosecution by the prosecution nor is there any explanation for the inordinate delay in the Magistrate taking cognizance. It also appears that the conduct of PW 5 (Satendra Singh) is also very suspicious and unnatural inasmuch as although he is said to have been present at the time of lodging of the report of the police station he being the brother of the informant and the abducted never cared to visit the P.O. and although he was present in the P.S., at the time of the filing of the report this fact is neither mentioned in the written report nor his signature has been obtained as attesting witness on the written report. The conduct of the informant himself also appears to be suspicious and unnatural inasmuch as having learnt 6 of the occurrence from Achut Kumar Singh (P.W. 4) and subsequently from Yadunath Singh, ( P.W. 1) the informant never cared to visit the place of occurrence before going to the Police Station. Even the conduct of P.W. 4 appears to be doubtful and suspicion oriented inasmuch as although he was a victim of assault and eye witness to the occurrence and his motorcycle was taken away and Rabindra Singh was dragged away followed by the sounds of two gun fires he never cared to approach the police immediately and give information to the police and get his injuries treated at the hospital but instead he rushed to the village to give information of the occurrence to the informant. He also did not accompany the informant to the police station to buttress the written report submitted by the informant. As a matter of fact even injury report of P.W. 4 is curiously not available on the record which throws doubt on the first part of the occurrence namely victim and the P.W. 4 being forced to get down from the motorcycle, their being assaulted and whereas he was left free the accused had taken away Rabindra Singh. It would also appear that one of the witnesses examined, namely, Dewan Singh (PW 2), does not figure in the charge sheet as a witness of the occurrence. The learned counsel further submitted that there were vital contradictions galore in the testimony of the witnesses and as such the prosecution witnesses examined at the trial were not truthful witnesses and appeared to have developed the prosecution case in course of the trial in the 7 court itself to such an extent that their evidence becomes doubtful. The learned counsel also sought to point out that the Investigating Officer did not appear to have found any trampling marks of vehicle or mark of any violence at the place of occurrence. If the allegations of victim Rabindra being dragged away is to be believed then some marks would definitely have been present at the place of occurrence. Possibly some blood marks persuant to the allegation of Rabindra having been shot dead and Achut sustaining bleeding injury also ought to have been found at the place of occurrence or its surrounding areas. It was also argued that the prosecution party and the accused are co-villagers and as the appellants are popular figures having fought assembly elections and appellant Kavi Singh is also elected Mukhiya yet P.W. 4 failed to name any of the accused at the first instance and this fact by itself creates a presumptive opinion that P.W. 4 was not present at the place of occurrence and the participation of the appellants in the crime falls within the realm of a doubtful case. The further grievance of the learned counsel for the appellants is that no motive has been attributed by the prosecution for the alleged crime and it was suggested that the probable cause of the occurrence being attributed to the political rivalry and of appellant Kavi Singh having been elected Mukhiya while being a strong motive by the accused to commit the crime may on the converse clearly constitute a motive for false implication in view of the adage “enmity cuts both ways”. The learned counsel for the State as also the learned counsel 8 for the informant vehemently argued that the prosecution had proved its case beyond all reasonable doubts with the support of cogent and reliable evidence. It was also sought to be impressed that the FIR is never considered to be an encyclopedia of the entire case and as such any development or deviation at the stage of the trial will not vitiate the case of the prosecution. It was also sought to be impressed that simply because witnesses are interested or relations of the informant or the deceased will not make their evidence suspect and when their evidence is consistent on all material points with the time and manner of occurrence and is corroborated by the objective findings of the Investigating Officer, minor discrepancies and inconsistencies in their evidence, when found to be credible, can be relied upon. The only duty cast on the court in such situation is to scrutinise their evidence with great care, caution and circumspection and the court should be very careful in weighing such evidence. The further submission on behalf of the State and the informant was that when the occurrence is proved by cogent and reliable ocular evidence on record then motive must take a back seat and even if motive in such situation is not proved, which in any case mostly remains confined within the mind of the offender, that by itself would not cause any dent in the prosecution case. I have given my anxious thought to the submissions advanced by the parties and have also examined the evidence of all the prosecution witnesses thoroughly and carefully. 9 PW 1 ( Yadunath Singh) is the first witness who claims himself to be an eye witness of the occurrence and at whose instance the names of the appellants was stated by the informant in the FIR. From the FIR itself it appears that the informant (P.W. 4) had met this witness while he was on way to the P.S. but curiously PW 1 did not accompany the informant to the P.S. nor figured as the first informant although he claimed to be an eye witness of the occurrence. The further evidence of PW 1 is that he went to Lakhisarai to visit a doctor to get his child who was ill examined and thereafter leaving the child at Lakhisarai he rushed to the village. This conduct of PW 1 by itself appears to be unnatural. It further transpires from his evidence that he stated that he did not have the prescription or receipt of purchase of medicines with him. Admittedly he in his statement under section 161 Cr.P.C. before the police had not stated that he had gone to Lakhisarai to visit a doctor for examination of the a child. He also curiously is not able to recall to mind the registration number of the vehicle in which he was travelling or the names of the driver, khalasi or any of the 15 - 20 passengers who were travelling with him. The evidence of P.W. 1 creates serious doubts on his credibility and he does not appear to be a truthful witness. P.W. 2, Deban Singh’s evidence is also not worth placing any reliance as according to his own evidence after seeing the occurrence he went to his house and it was on the next day that he was examined. That apart Deban Singh (PW 2) does not figure as a 10 witness in the FIR but his evidence shows that police came to his house and disclosed to him that he has been named in the FIR as a witness and as such he went to the P.S. and gave his statement as an eye witness. It appears that when his attention by the defence was drawn to his statement before the police that Sheo Balak Singh and Rajesh Singh @ Kavi Singh @ Montu had riffles in their hand and that they were taking away Rabindra Singh and Achut Singh and were assaulting and dragging them he had answered in the affirmative but curiously he is unable to recall to mind whether he had stated before the police that Sheo Balak Singh and Kavi Singh were assaulting Rabindra Singh who was smeared with blood and was raising alarm. When the Investigating Officer (PW 6) was confronted with this statement of PW 2 he categorically denied that Deban Singh had ever stated before him that Sheo Balak Singh and Rajesh Singh @ Kavi Singh had riffles in their hands and they were dragging away Rabindra Singh and Achut Singh and that Rabindra Singh was smeared with blood. The evidence of this witness appears to be doubtful and his presence at the place of occurrence at the relevant time also appears to be doubtful. Debendra Prasad Singh (PW 3) happens to be the informant. He admittedly is not an eye witness to the alleged occurrence and in clear terms is a hearsay witness, having derived his knowledge of the occurrence and the names of the assailants from Achut Kumar (PW 4) and Yadunant Singh (PW 1) respectively. PW 3 in course of his cross examination specifically admitted that Achut 11 Singh (PW 4) had not disclosed the name of any of the criminals. It would also appear that PW 3 admitted in his evidence that his brother Satendra Singh (PW 5) had accompanied him at the time of the lodging of the written report at the police station but he was not able to explain why Satendra’s presence at the police station at the relevant time was not mentioned in the written report and why his signature was not obtained as an attesting witness on the written report. It is also curious that although Achut Kumar (PW 4) had come to the informant in an injured condition and had informed him about the occurrence relating to the kidnapping of Rabindra Singh the informant never requested him to accompany him to the P.S. With the background of political rivalry the evidence of PW 3 being tainted or biased to implicate the appellants falsely could not be ruled out. PW 4 (Achut Kumar) as per the prosecution story was taking the victim Rabindra Singh on his motorcycle to Lakhisarai and enroute the alleged occurrence had taken place. However, he is not in a position to identify any of the appellants. It is also curious that although it is claimed in the FIR that the said Achut Kumar had appeared before the informant in an injured condition yet there is neither any injury report regarding his injury or of his having been treated by a doctor. It is also curious that although the alleged occurrence of the kidnapping of Rabindra Singh had taken place in his presence he instead of going to the police station returned to Barahiya to give information to the informant which never could 12 be considered to be a natural out come of a person who had actually seen the occurrence and had also sustained injures at the said occurrence. The evidence of this witness also does not appear to be reliable and worth credence moreso when he failed to identify any of the appellants at the place of occurrence although he identified them in court. The evidence of P.W. 6, S.I., Mahesh Kumar, the Investigating Officer, puts the death nail to the prosecution case as he has not found any trampling marks or any signs of assault or dragging at the place of occurrence. He had also not found any blood at the place of occurrence. According to his evidence he also denied that Deban Singh (PW 2) had told him in his statement under section 161 Cr.P.C. that Sheo Balak Singh and Kavi Singh were armed with riffles and that Rabindra Singh and Achut Singh were being dragged away and that Rabindra Singh was smeared with blood. But this witness immediately appears to have corrected himself and reconciling from his earlier statement deposed that PW 2 told him that Rabindra Singh was smeared with blood and was raising alarm even as he was being dragged. It is also curious that being the Officer Incharge of Barahiya P.S. he was not aware of the fact that accused Sheo Balak Singh a resident of the same village had been provided with bodyguards by the State Government. Having given my anxious thoughts to the maters in issue and the materials available on record I am of the confirmed opinion that the prosecution had failed to establish its case beyond 13 all reasonable doubts. The appeals are accordingly allowed. The judgment and order of conviction and sentence is hereby set aside. Both the appellants are in judicial custody. They are accordingly directed to be released forthwith if not required to be in custody in connection with any other case. Patna High Court, Patna. Dated : The 21st of July, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)