Criminal Appeal (SJ) No.945 of 2006 Against the judgment of conviction dated 17.11.2006 and order of sentence dated 18.11.2006 passed by Additional Sessions Judge, Fast Track Court No.I, Purnea in Sessions Trial No.761 of 2004/Trial No.71 of 2004 arising out of Bhawanipur P.S.Case No.26 of 2004, G.R.Case No.815 of 2004. HARERAM SINGH.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT With Criminal Appeal (SJ) No. 63 of 2007 SUDHIR SINGH.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellant : Sri Arun Kumar Mandal For the State:- Sri S.N.Prasad, A.P.P. (In Cr.Appeal No.945 of 2006) . For the Appellant : Sri Vinay Ranjan, Advocate For the Respondent : Sri S.N.Prasad, A.P.P. (In Cr.Appeal No.63 of 2007). P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The two appeals arise out of judgment of conviction dated 17.11.2006 rendered by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court No.I, Purnia in Sessions Trial No.761 of 2004 by which the two appellants were found guilty of committing offences under 2 Sections 364/34 and 414/34 IPC and both of them were directed to suffer rigorous imprisonment for ten years as also of three years on both the counts. The sentences were directed to run concurrently. 2. The self statement(Ext-3) of P.W.4 Udaya Bahadur who was the officer-in- charge of Bhawanipur police station on 04.06.2004 is the basis upon which the formal FIR (Ext-2) of Bhawanipur police station case No.26 of 2004 dated 04.06.2004 was registered. It was stated by P.W.4 that the Dy.S.P., Dhamdaha had telephonically informed him that the abductors concerned with Bhawanipur Police Station Case No.24 of 2004 were about to assemble somewhere around village-Barhari-Raipur and as such instructions were being issued to the officers-in-charge of Rupauli and Dhamdaha police station for rendering proper assistance to P.W.4. Accordingly, P.W.4 along with the officer-in-charge of Rupauli(P.W.2) and officer-in-charge of Dhamdaha (P.W.5)started from the police station at 4 A.M. They conducted raid in different villages situated around Barhari 3 Bajrangbali Asthan and during that course P.W.4 found a silver-colour-Bolero being driven fast and was proceeding towards the said Bajrangbali Asthan. The police officers present on the road signalled the vehicle to stop but it did not respond to the signal, rather sped away fast. P.W.4 stated that he picked up the sound of “Bachao-Bachao” of a person coming out of the vehicle and, accordingly, the vehicle was chased. The occupants of the vehicle stopped the vehicle and started running away from there with a person whose hands were tied and they all started moving towards the canal situated in the west. The police, while chasing the criminals, felt that they might catch hold of the criminals but they started running away leaving out the victim. It is stated that the victim was recovered and he gave his name as Awdhesh Mandal(P.W.6). 3. P.W.4 stated that on chase, two of the criminals were also arrested and it were the two appellants, namely, Sudhir Singh and Hareram Singh who stated that they committed the abduction and murder of four relatives of the Member Legislative Assembly 4 from Rupauli constituency, namely, Smt. Bima Bharti, with the help of one Manoj who was the Mukhiya of Dumra and the captured Bolero vehicle had been used by them in commission of the offence of abduction and murder of the four persons whose dead bodies had been left under water in river Bandadhar near a bamboo clump. The police stated that it recovered the four dead bodies. 4. The police stated that the other companions of the two appellants had escaped and on search, in the presence of the witness three cellular phones and the ignition key of the Bolero vehicle were recovered and, accordingly, the vehicle was started by using that key. It was stated that the two cellular phones and the ignition key were recovered, as per description given in the seizure memo Ext-4 and the self statement was drawn up. 5. In spite of having drawn up his self statement, P.W.4 himself chose to investigate the case and after closing the investigation, he sent up the two appellants for trial and, accordingly, the learned trial Judge indicted them for committing 5 offences under Sections 364/34 and 414/34 IPC. 6. The defence of the appellants was that they had been falsely implicated in a fake case on account of the influence of the said Member Legislative Assembly, Smt. Bima Bharti, on the Superintendent of Police and other police personnel. 7. In support of the charges, the prosecution examined seven witnesses. P.W.1 Rama Nand was a witness to seizure and he stated that when he reached after hearing a hullah from his field he found that police had two persons in their custody and they were the two appellants and on search of their persons the police recovered three cellular phones. It further seized the silver colour Bolero vehicle and thereafter the witness P.W.1 signed the seizure memo. P.W.2 Shahid Aslam was the officer-in-charge of Rupauli Police Station and he has supported the informant as regards the assembly of police officers at Bhawanipur police station for proceeding in search of the criminals and other details of the prosecution case which has further been 6 supported by P.W.3, the Sub-Inspector of Police, Purnia Sadar police station. P.W.4 is the informant himself. P.W.5 Nisar Ahmad was the officer-in-charge of Dhamdaha police station on 04.06.2004 and he has also supported P.W.4, the informant. P.W.6 Awdhesh Mandal is the person who was said to be captured by the two appellants and others and was being taken away in the Bolero vehicle which was seized by the police and the victim was rescued from the custody of the two appellants who were also arrested. P.W.6 has testified to the above facts. P.W.7 Mahesh Prasad Thakur was the officer who had submitted charge-sheet after having received the charge of investigation from P.W.2. Thus the main evidence comes from only five witnesses, namely, P.W.2 to 6; P.W.1 being witness to seizure, whereas P.W.7 was almost a formal witness who submitted the charge-sheet only, without doing anything important in investigation. 8. The appellants did not produce any evidence and simply relied upon the frailties in the prosecution evidence so as to castigating the judgment of their 7 conviction. It was contended by the learned counsel appearing in the two appeals that the case was out and out fabricated which was evidently clear as the time of departure from Bhawanipur police station of P.Ws.2, 3, 4 or 5 which was given in the self statement of P.W.4 was varying from witness to witness and it appears as if the witnesses were not certain as to what time they should put in before the court so as to making it a probable story. It was submitted that there was no mention of any registration number of the Bolero vehicle in the self statement nor the vehicle number was stated any-where by any of the witnesses and it was for the first time appearing in the seizure memo. Not only that the story of recovery of the ignition key of the vehicle was not specific and Ext-4 the document in that behalf simply belies the evidence of P.W.1 and others that the same was recovered from the possession of either of the appellants as there is no mention in Ext-4 that any ignition key was recovered from either of the two appellants. It was contended that because the story was fabricated so the 8 police was always groping in dark as to how it should describe the vehicle and how should it prove the fabricated story of recovery of the ignition key from the possession of the appellants. 9. The contention was that P.W.6 the star witness of the prosecution appears a witness who had been produced from under the cap of P.W.4, probably, on account of some political alliance the witness could have with some political figure, like, Smt. Bima Bharti, as his evidence completely belies the story on account of not being supported by any independent witness. It was contended on the above grounds that the judgment of conviction belies the confidence of a reasonable person and appears passed on conjectures and surmises of the court and as such the same suffers from perversity and this court should acquit the two appellants. 10. Missing the minor details is not always important in a criminal trial but whenever the minor details attain significance as regards the innocence of a person or fabrication of a case, then the minor details cease to be minor and those 9 become significant major incidents which the courts should seldom avoid to consider. The learned counsel appearing for the appellants had rightly submitted that the appellants were innocent and that they were picked up illegally and so as to justifying their arrest and obtaining an order of proof of their guilt, the story of Bolero vehicle appears a creation of the imagination of the police whose minds are always productive in spinning out these stories and in order to support the same they further appear creating some documents which could not withstand the scrutiny of the court. It was contended that there was no details of the vehicle in it as to what was its engine number, what was its chesis number nor there was any detail as regards the registration number of the vehicle when P.W.4 was drawing up his self statement very much after having seized the vehicle at 7 A.M. on 04.06.2004, though Ext-4, the seizure memo was prepared at 7 A.M., the self statement Ext-3 of P.W.4 was drawn up at 7.30 A.M. In between, there was sufficient time for the informant to have the grasp of all relevant details in 10 respect of the vehicle so as to putting them down correctly as descriptions of the vehicle. It is true that the vehicle gets described in the seizure memo, but why was it missing by its registration number or by its Chesis number or engine number which were already existing in the seizure memo in the self statement of P.W.4 remains a riddle. Not only that so as to keeping the appellants in the possession of the vehicle P.W.4 was going over board to create the story of the ignition key being recovered from any of the appellants, which, in fact, was never recovered from the appellants. This fact was never stated in the self statement and it was kept under the wraps while the details of the seizure were being deposed to by all witnesses including P.Ws.2, 3, 4 and 5. The most striking fact was that if at all the ignition key was recovered at the time of seizure of the vehicle and preparation of Ext-4, why was there no mention in Ext-4 that any ignition key was recovered from a particular appellant so as to clearing the airs of doubt in respect of the seizures which 11 exists on account of the suspicious evidence. 11. P.W.4 the investigating officer has stated in his FIR-I am aware that it was not a piece of evidence, but I am still aware that the FIR being the first and initial story of the prosecution, is the most potent weapon in the hands of the defence so as to deciding the veracity of the prosecution evidence the time of the departure of P.W.4 and others from his police station. It is stated that P.W.4 and others left Bhawanipur police at 4 A.M. However, when one looks to the evidence of P.W.2 another officer-in-charge of Rupauli police station who was equally required to assist P.W.4 in searching and arresting the criminals, one could find that he stated that he had assembled there with other police officials at 5 P.M. and thereafter all of them started from Bhawanipur police station to Raipura village. P.W.4, the informant contradicts himself with his own statement which was contained in Ext-3 which is the self statement. I have already pointed out that in Ext-3 P.W.4 had put down 12 the time of his departure from the police station along with P.Ws.2, 3 and 5 at 4 A.M.. But, in his evidence in paragraph-5, P.W.4 was stating that he had left the police station at 2.30 A.M. for the destination. P.W.6, the victim stated that the occurrence had taken place from 5 A.M. to 5.45 A.M.. In addition to the above anomalour and indefinite and unacceptable evidence on the important time in respect of the occurrence, it remains yet another suspicious circumstance as to when the occurrence had taken place in between 5 A.M. to 5 P.M., then why the recoveries were made at 7 A.M. and the Bolero vehicle was also seized at 7 A.M. 12. In addition to the above, P.W.6 was deposing on the part of the prosecution story which related to his abduction. The police officers had never seen P.W.6 being picked up and being put in the Bolero vehicle. As such, they could not be said to be competent witnesses. Whatever they have stated is the post occurrence, depositions of witness regarding the victim crying out of the vehicle requesting to be saved and 13 the police chasing the vehicle. P.W.6 has stated in paragraph-7 that he was seen being picked up by the criminals by many villagers some of them he has named as Md. Irphan, Shiekh Tashim, and others. He stated that neither he nor the villagers could raise any alarm for preventing P.W.6 from being abducted by the criminals so as to be taken away. But, when the vehicle was stuck up in the sand and the accused persons started running by taking the victim with them. P.W.6 has stated in paragraph-8 that the vehicle got stuck up at a distance of about 3 K.M. from Dhankuwa and the criminals started running away. The victim and the criminals had run for about 200 yards on the road for about 2-3 minutes. During those moments, the victim had raised some hulla attracting the villagers, like, Hareram Rai, Wakil Rai, Sadanand Mehta, Asharfi Rai, Raju Rai and others and they started chasing the criminals who started running away towards west when the police came and caught them. It remains a riddle as to how the prosecution did not examine independent persons, like, Irphan and Sheikh who had 14 seen the first part of the occurrence and the victim being picked up and being put into the vehicle for being taken away. Likewise, why was the prosecution being shy of not producing independent persons, like, Hareram Rai, Wakil Rai, Sadanand Mehta, Asharfi Rai and Raju Rai and others also remains equally a riddle. Not only that when one further considers the evidence of P.W.6 in the same paragraph-8, one could find that the claim of P.W.4 and other police officers, like, P.Ws.2, 3 or 5 that it were those officers who had caught the criminals and recovered the victim. P.W.6 has stated that there were three vehicles full of police personnel which consisted of constables also. It were the constables who were ahead of the officers and it were the constable who had brought two appellants from some where after arresting them. The evidence of P.W.6 indicates that the claim of P.W.4 and other police officers that the two appellants were chased and caught at the same place where the vehicle was stopped is completely false and could not be acceptable in the light of the very evidence of P.W.6, 15 the victim of offence, namely, Awadhesh Mandal. 13. Seizure Memo Ext-4 states that it was prepared at village Bajrangsthan, P.S.Bhawanipur, District-Purnia. It does not specify the place at which the vehicle was seized or the two appellants were taken into custody. The evidence is also silent on the above point. However, the evidence of P.W.1 Rama Nand Mandal, the solitary seizure witness who came to depose in court indicates that the seizure memo was prepared in the premises of the Bajrangbali Aasthan temple in between 7 and 8 A.M. I have already pointed out the anomaly in the evidence of witnesses as also the contents of Ext-4 as it does not mention the recovery of the ignition key of the vehicle from either of the two appellants. Some of the other conflicting evidence comes on ordinary details, like, it was not the police officer who had heard or who had chased the vehicle rather P.W.4 in paragraph-8 has stated that it were the constables who had pointed out that the Bolero vehicle was speeding away and thereafter the vehicle was chased. The 16 other inconsistency is that all the witnesses and even the initial prosecution case stated that the victim P.W.6 was being taken away and at that time his hands were tied. P.W.5 in paragraph-8 has stated that he did not see that the hands of the victim were tied rather it was untied. These are some of the minor details which may not be much important as regards the other frailties I have noticed and discussed above. 14. The most important defect in the prosecution case is that the informant of the case was himself investigating the case. There is a series of decisions including one rendered by me in Md. Zahid @ Commando Vrs. State of Bihar 2011(2)BBCJ(v)554 that if a police officer himself is the informant of the case, he should refrain from carrying out the investigation of that particular case. It has been pointed out by all courts including the Apex Court that the informant of the case if allowed to investigate the case, there is always a tendency in him to create evidence for seeking the full proof of the 17 charges so as to obtaining a conviction of the accused. It has been advised by all court that in a case where the police officer is the informant the investigating officer normally should be an officer other than the informant. 15. I have seriously considered the prosecution evidence, and I am of the most considered opinion that the evidence created a doubt in the case. I seriously believe that the incident which was narrated by P.W.4 may not have occurred and may be under the political influence or under the enthusiasm of pleasing a to political personality, the police had acted in a manner as to getting two innocent persons arrested and indicted under serious charges for which they were directed to suffer imprisonment. The reasoning is further strengthened from one fact that in spite of having investigated the case the police could not amass evidence that the possession of Bolero vehicle had been obtained by the appellants by commission of the offence of theft. 16. In the result, the two appeals 18 succeed. The two appellants are acquitted of the charges for which they have been convicted. Appellant Sudhir Singh is on bail. He shall stand discharged from the liabilities of his bail bond. Appellant Hareram Singh is in custody. He shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 21st day of July, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)