Criminal Appeal (SJ) No. 144 of 2006 With Criminal Appeal (SJ) No. 143 of 2006 With Criminal Appeal (SJ) No. 574 of 2006 --------- Against the judgment and order of conviction and sentence dated 13.1.2006 and 18.1.2006 passed by Shri Brahma Nand Prasad, Additional District and Sessions judge, Fast Track Court, Munger in Sessions Case no. 595 of 2003. ---------- Cr. Appeal (SJ) No. 144 of 2006 1. Ganpat Yadav (since dead), son of Balo Yadav, 2. Sripat Yadav, son of Balo Yadav, both residents of village – Taufir Karari Tola, Mai Sikandarpur, P.S. – Muffasil, District – Munger ……………… Appellants Cr. Appeal (SJ) No. 143 of 2006 1. Bano Yadav, son of Late Natu Yadav, 2. Shankar Yadav, son of Bano Yadav, both residents of village – Taufir Karari Tola, Mai Sikandarpur, P.S. – Muffasil, District – Munger …………. Appellants Cr. Appeal (SJ) No. 574 of 2006 1. Hooli Yadav, son of Chamo Yadav, 2. Chamo Yadav, son of late Natu Yadav, both residents of village – Taufir, P.S. – Muffasil, District – Munger ……………… Appellants Versus The State of Bihar ……………. Respondent (in all the appeals) ---------- For the Appellants : Sarvshri Anuj Prakash, Rakesh Kumar, Sanjeev Ranjan & Dhirendra Nath Jha, Advocates For the State : Shir S.N. Prasad, APP ----------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ------ Dharnidhar Jha, J. The present batch of three appeals arise out of the judgment dated 13.1.2006 passed by the learned Additional Sessions Judge-cum- Presiding Officer, Fast Track Court, Munger in Sessions Case No. 595 of 2003, by which 2 the appellants in the three appeals were held guilty of committing offence under section 364/34 IPC and each of them was directed to suffer RI for ten years as also to pay a fine of rupees three thousand, else to suffer RI for a further period of one year. 2. The case related to the abduction/kidnapping of two persons, namely, Bikas Kumar Yadav and Sanoj Kumar Yadav. Bikas was the son of P.W. 5 Rabin Yadav. Sanoj Yadav happened to be the son of the informant Ram Roop Yadav (P.W. 7). Initially on account of the two persons not being found at their respective abodes in the Diyara, which is known for its notoriety, namely, Taufir Diyara and a written information was lodged on 7.2.2003. That written information was marked as Ext. 2/Ext-B. That particular written information dated 7.2.2003 did not bear any name of any person who could have taken the two victims away nor any suspicion was expressed against any person. However, after about sixteen days of the occurrence, Roop Lal Yadav, who had filed Ext. 1/Ext.B on 7.2.2003 again filed another written report and gave a graphic description as to how the offence had been committed by a band of fourteen accused persons, ten named and others unnamed. It was stated specifically that after filing Ext.1/Ext.B, P.W. 7 was roaming around to collect information as to how and by whom the offence of abduction of two persons had been committed and in that course, he came to know from different persons in the Diyara that it were the ten named persons along with some others who had committed the offence by taking the two victims away. It was specifically stated that the whole incident was witnessed by some of the persons and they had passed on the information to P.W. 7 and on that basis, Ext. 1, a written report was filed. 3. After receipt of Ext. 1, the written report of P.W. 7, the FIR of the case was drawn up and the investigation was taken up by P.W. 8 Ramanand Tiwari, as may appear from his evidence. He stated that during the course of investigation, he inspected the place of occurrence and found it to be the Jhopri and Bathan (cattle shed) of the two victims Sanoj and Bikas, located at village 3 Purushottampur and, thereafter, went on to record the statements of the witnesses and after finding material sufficient, sent up the accused persons for trial. 4. The defence of the appellant was that they had falsely been implicated for any particular reason. During the course of trial, nine witnesses were produced by the prosecution for their evidence. P.W. 1 Radhe Yadav was the nephew of P.W. 5, the father of victim Bikas Kumar Yadav. He does not appear a witness on taking away of the victims as he stated that since he found the group of accused persons armed with guns and pistols altercating with the victim Bikas, he was frightened and ran away. This evidence of P.W. 1 may also not be of any avail as in the first line of cross examination, he was stating that he had not made any statement before the police. So far as the evidence of P.W. 2 is concerned, he was supporting the occurrence by stating that the appellants along with some others came and kidnapped Bikas and Sanoj and he had seen the accused persons taking the victims away with them. However, on perusal of the cross examination part of P.W. 2, what appears is that he was cross examined to his previous statement by drawing his attention to it, which he had made earlier and he was stating that he had not made statements before the Magistrate, who had recorded his statement under section 164 Cr.P.C. or before P.W. 8 SI Ramanand Tiwari, who also appears testifying that P.W. 2 had not made statement that the appellants were seen altercating with the victim Bikas. Likewise, evidence of P.W. 3 also indicates that he was supporting that the accused persons, namely, the present appellants came and took away the two victims with them. But, in his cross-examination, in paragraph 3, he had admitted that he has not named any of the appellants in any of his statements. Thus, the evidence of P.W. 2 naming the appellants as persons who could have taken the two victims away appears disproved by his own statement in paragraph 3. P.W. 4 was again a witness of the same class as was P.W. 2 and he was also stating that he found the appellants taking the two victims away with them and when he wanted to know the reason, the appellant Chamo Yadav stated to him that it was 4 for the purpose of getting the two victims married to some ladies. However, his attention was drawn in paragraph 4 of his cross examination and he was suggested that he had never made the statement which he made in his examination-in-chief either before the Magistrate or before the police. The statement of P.W. 4 Sunil Yadav is available as Ext. 3/1 and it does not appear from the perusal of that particular statement under section 164 Cr.P.C. that the witness had made statement that the appellants had taken Bikas and Sanoj with them. P.W. 5 Rabin Yadav, the father of one of the victims, namely, Bikas was not a witness on any part of the occurrence, but had learnt after two-three days of the incident that ten persons had taken his son Bikas towards east of the village with another victim Sanoj. P.W. 5 stated that he was given the information of the incident by some one but he has not named that particular person who had given the information. Besides, he stated in paragraph 3 that as soon as he got information about the incident, he went to the police station to lodge a report. His attention also appears drawn to the statement made by him for being suggested to him that he had not made this statement before the police and P.W. 8 proves that those statements which were made by P.W. 5 in examination-in-chief, were never made to him. 5. P.W. 6 Saurabh Kumar Yadav, who is the son of one of the victims Bikas, appears the only eye witness as per his own statement as also from the statement of P.W. 7, the informant Ramrup Yadav. He was aged about 12-13 years on the day of the occurrence and he appears staying at the place with his father Bikas and he stated that the appellants came and called his father and thereafter, took him away with them. In his very examination-in-chief, P.W. 6 has stated that in the evening next to the date of occurrence, the informant Ramroop, who appears to be his uncle and the elder brother of his father, came and he narrated the incident to him. His attention was also drawn towards the statement where he stated that he had not seen that the appellants had taken his father. 6. P.W. 7 has supported his written report. He stated that he had gone to have a round of his field at village Purushottampur and he met Bikas there at 5 the cattle shed who pointed out to him about the victims being taken away along with Sanoj. P.W. 7, thereafter, went to the police station for lodging the report but the report was not registered by the Officer Incharge of the police station, who asked him to search for the two victims. He again met the Officer incharge of the police station to point out that he could not trace out the two victims whereafter, he was asked to file a written report of two victims going missing. That written report has been marked Ext. 2, which does not bear the names of any person as the accused who could have committed the offence. P.W. 7, thereafter, stated that he kept roaming around into Diyara and he there met Sunil Yadav (P.W. 4), Sanjay yadav (P.W. 2), Radhe Yadav (P.W. 1), Bhim Prasad Yadav (P.W. 3) and Kare Lal Yadav (not examined). They divulged the full description of the occurrence as to how the accused persons including the present appellant had come and taken away Sanoj and Bikas with them and while so doing, the appellants were variously armed. 7. After having come to know about the incident and lodged the written report, Ext. 1, upon which the case was registered, P.W. 7 has stated in paragraph 7 that the day he had filed Ext. 2, the written information without containing any names, he had learnt about the names of the accused persons. His attention also appears drawn in different paragraphs and in order to contradicting him with his own statement, which were either made before any one or made in the written reports. From perusal of the evidence of PW 8, it appears that the fact that he has been told about the incident by witnesses had not been mentioned in either of the written reports. 8. For judging the veracity of the evidence of P.W. 7, what was required to be considered was the evidence of P.Ws. 1, 2, 3 and 4 because those were persons besides Karelal Yadav, who was not examined, from whom P.W. 7 claimed having got information and the complete details as to how the offence was committed in which the two victims were taken away. I was taken through the evidence of those witnesses, namely, P.Ws 1,2,3 and 4 and find, as I have 6 already indicated while reading their individual evidences, that P.W. 1 had not stated nor did P.W. 2 that he ever gave any details of the incident. Likewise, P.W. 3 has stated in paragraph 3 that he had not stated anything to the father of Sanoj, i.e., P.W. 7. In the first line of the evidence, P.W. 3 stated that he had not named any person even before the I.O. So far as the evidence of P.W. 4 is concerned, he also does not appear to have stated that he ever met P.W. 7 and made the disclosure as to how the offence had been committed and by whom, but when one considers the evidence of P.W. 4 in paragraph 5, one would find that he had stated that after the incident had occurred and before he had made his statement before the police after three – four days of the incident which may be had from paragraph 9 of the evidence of P.W. 4, he had never made any statement to any one and specially prior to making his statement before the police. Thus, the claim of P.W. 7 that he had met these four persons along with Kare Lal yadav while roaming around in the Diyara had gathered details about the incident indulging the manner in which the two victims were taken away by persons known or unknown, does not appear acceptable. He was never told anything by the above four persons. The four witnesses have also not deposed that they ever met P.W. 7 and stated anything to him. The solitary eye witness P.W. 6 was not named in any of the written report. His name, firstly, appeared in the examination in chief of P.W. 7 and it appears that it was purposely done because prior to examining P.W. 7, the prosecution had already examined P.W. 6 and he had projected him as an eye witness. Thus, what I find is that the prosecution was compelled to get those words into the mouth of P.W. 7 so as to corroborating P.W. 6 that he was an eye witness. But, on consideration of their individual evidence, what this court finds is that the very evidence of two witnesses suffer from improbabilities. 9. If P.W. 7 was told by P.W. 6 about the incident in the next evening of the day on which the occurrence had occurred then there was no reason for him to go to the police station time and again and not to lodge a report. P.W. 7 himself has stated that the day he filed the first written information, Ext. 2, i.e., on 7 7.2.2003, he was fully aware of the names of the accused persons who had committed the offence but, curious aspect of the matter is that Ext. 2 did not contain any name nor did it contain the statement that P.W. 7 had got some names which he was either verifying or was putting down in writing. The most important aspect of the evidence of P.W. 7 is that the source from which he learnt about the incident, be it P.W. 6 or any of the witnesses, like, P.Ws. 1, 2, 3 and 4, they are not stating that they had ever met P.W. 7 or had stated any detail of the occurrence. This is the reason that this court has reservations in acting on the evidence of prosecution which were adduced by it through witnesses. The other aspect which appears from the evidence of some of the witnesses is that the prosecution was attempting to make out a case as if names and full details of the occurrence had been known to the witnesses only in two three days of the occurrence. P.W. 5 in paragraph 3 stated that he knew about the incident and went to lodge the report to the police station only after two three days of the occurrence. Likewise, P.W. 4 has also stated that he had given the statement before the police just after three four days of the occurrence. P.W. 3 stated that he had given the statement before the police after five six days. I have already noted that the written report which is the basis of investigating the case was lodged after about sixteen days of the occurrence. If the witnesses had already reported the matter as they individually claim by stating that they had made their statement before the police, then it is all the more a matter to be cautious about as to why their names were not surfacing prior to 10.2.2003 when the FIR was finally drawn up. These are some of the circumstances which I have found out from the evidence and in my considered view, these circumstances were missed by the learned trial judge to be identified. If the learned trial judge would have identified those circumstances, he could not have gone on to say that the charges were proved and would not have passed the sentence on any of the appellants. 10. After consideration of the evidence, what I find is that there are many holes in the prosecution story and evidence, which make it extremely 8 doubtful and witnesses most untrustworthy. It was not a fit case in which the judgment of conviction and order of sentence could have been passed. In the result, the three appeals are allowed. The appellants are acquitted. The appellants except appellant Ganpat Yadav (since dead), are on bail. They shall stand discharged from the liabilities of their bail bonds. (Dharnidhar Jha, J.) Patna High Court, The 26th August, 2011, NAFR/Anil/