Criminal Appeal (SJ) No.364 of 1998 **** Against the judgment, dated 27.08.1998, passed by Additional Sessions Judge, II, Arrah, in S. Tr. No. 31 of 1997 **** 1. Anil Singh, son of Ram Pravesh Singh 2. Surendra Singh, son of Bishwanath Singh 3. Rajendra Singh 4. Kanhaiya Singh 5. Lavkus Singh All son of Jagarnath Singh 6. Lalji Singh @ Jagnarain Singh, son of late Ram Ratan Singh, resident of village Sinha, P.S. Krishnagarh, district Bhojpur .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellants .. Mr.Abhay Kr Singh no.1, Adv. For the informant .. Mr. Satyapal Singh, Adv. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. The appellant have been convicted under Section 364 of the Penal Code and has been sentenced to undergo rigorous imprisonment for ten years though have, further, been convicted under 2 Sections 147 of the Penal Code and 27 of the Arms Act, however, no separate sentence for these offences. 3. The prosecution case, as alleged in the first information report by the informant, Ashok Singh, P.W. 5, that his younger brother, Anil Kumar Singh, aged 22 years, on 27.06.1995 at about 03.00 p.m. was going to attend the funeral of Ramadhar Singh. He was going with the funeral of Ramadhar Singh to Ganga Ghat at 03.00 p.m. on 27.06.1995. The said burning ghat is on the bank of river Ganga at distance of about 3 k.ms. from the village, when his brother reached at a distance of about one and half kilometer then the co-villagers, accused, Srikant Singh, Laljee Singh, Surendra Singh, Kanhaye Singh, Anil Singh, son of Rampervesh Singh, Rash Bihari Singh and Lavkush Singh, armed with fire arm kidnapped Anil Singh by force. Further, case of prosecution that Ramnaresh Singh (P.W. 1), Prabhu Singh (P.W. 3), Arvind Singh (P.W. 2) are the witnesses of the occurrence. These witnesses were going behind Anil Kumar Singh, the brother of the informant, and were also members in the funeral of Ramadhar Singh, who had seen the accused persons kidnapping Anil Singh the brother of the informant. The, further, case is that the informant make out a search of his brother, but, could not find him. He even tried to contact the kidnappers even going to their houses, but, could not meet them. The motive for the occurrence is that the father of the informant has filed a case against the accused persons, which was pending in the Court. The occurrence has been done for pressurizing to withdraw that case. It has, 3 further, been contended that the accused, Rash Bihari Singh is veteran criminal against whom several cases are pending. 4. The occurrence is dated 27.06.1995 at about 03.00 p.m. and the first information report was lodged at 30.06.1995. Aafter investigation the charge sheet submitted, cognizance taken and the case committed to the Court of sessions, where the charge was framed under Sections 364 and 147 of the Penal Code and 27 of the Arms Act against six accused persons, who are the appellants. 5. However, during the trial eight persons were examined by the prosecution, who are P.W. 1, Ram Naresh Singh, P.W. 2, Arvind Kumar Singh @ Tuntun Singh, P.W. 3, Raghu Singh, P.W. 4, Hira Singh, P.W. 5, Ashok Singh, the informant, P.W. 6, Ibrar Ahmad, the investigating officer, P.W. 7, the second investigating officer, and P.W. 8, is the Advocate Clerk, who has proved Exhibits 4 and 5. 6. However, P.W. 5, the informant, in his evidence has stated that he was also going in the funeral of Ramadhar Singh along with him Arvind, Prabhu and Ram Naresh Singh and were witnesses of kidnapping of Anil Singh. However, this in his cross examination in paragraph 19 he has stated that when the call for attending the funeral was received he was going to take bath and at that time Anil Singh was at his house. He has, further, stated that Anil proceeded to attend the funeral about half an hour before he proceeded and in the way he did not meet the funeral party. 7. His, further, evidence is that his brother, Anil, was also going along with them and was only few steps ahead. It is highly 4 improbable that P.W. 5 met with Anil and Anil was only proceeding a few steps ahead when he proceeded half an hour before P.W. 5 proceeded, hence, the evidence of P.W. 5 does not inspire confidence. The appellants surrounded and kidnapped his brother at about the kutia of Dadhi Baba and the appellants were armed with deadly weapons. 8. P.Ws. 1, 2 and 3 in their evidence deposed that Ramadhar Singh died on that date of occurrence. They also had joined the funeral of Ramadhar Singh and they were going along with Anil Singh and Ashok Singh, P.W. 5, who was few steps ahead and when they reached at the mathia then eight persons came out from jhalas and kidnapped Anil. P.W. 1 stated that he fled away to river Ganga and then took bath and returned back to the village and disclosed about the occurrence to Vinod, Vikram and Sudarshan and then after returning back informed Hira Singh. P.W. 4, the father of Anil Singh, however, in his evidence stated that he proceeded from the house then he did not find any funeral and did not find Anil Singh, who was going in the funeral of Ramadhar Singh. They requested the kidnappers to release Anil Singh. P.W. 2 has, further, stated that after the occurrence they ran to river Ganga and then took their bath. He has also stated that when went out of the house none of the villagers met, who was to go to attend the funeral and they did not find the funeral even going up to one and half kilometer. After the occurrence he fled away to Ganga Ghat and, thereafter, he returned and did not meet any person in the way. P.W. 4 is the father of the victim, Anil Singh. However, he is not an eye witness and he has only come to depose that he learnt and went 5 to the father of the accused, Rash Bihari, for release of his son. P.W. 6 is the investigating officer and he has given the description of the place of occurrence in one of the villages and the Ganga Ghat as well as having a distance of few kilometers and in between of kutia of Dhadhi Baba where the occurrence place. 9. The defence has also adduced six witnesses. However, the defence adduced, by the witnesses are the witnesses of the charge sheet, who have been forgone by the prosecution and they have come to say that they had not seen the occurrence. 10. The trial Court, after considering the evidence of the witnesses, considered the evidence of P.W. 5 suffers from development from the prosecution story stated in the fardbeyan. Further, took into consideration that the parties are in inimical term, but, observed that enmity cuts both ways and, further, considered that there was delay in lodging the first information report, the explanation that the prosecution party was making an effort for the release of the victim by winning over the accused persons and, hence, observed that there is sufficient reason to accept the delay and, further, relied upon on the evidence of P.Ws. 1, 2 and 3 that they have supported the prosecution case about the occurrence in material particular about the time, place and manner of occurrence and convicted the appellants, as stated above. 11. The learned counsel for the appellants, however, contends that there is enmity between the parties. The informant in his fardbeyan not claimed himself to be eye witness and during evidence claimed to have been following P.Ws. 1, 2 and 3 and were party of the 6 funeral and the witnesses, P.Ws. 1, 2 and 3 have also accepted that they have accepted that they gone in the funeral much later the funeral of Ramadhar Singh has proceeded and, hence, they were not eye witnesses to the occurrence as it has come in the evidence of the informant that Anil Singh has proceeded with the funeral about half an hour prior to the witnesses alleged to have left for funeral. 12. However, the occurrence took place on 27.06.1995, but, the first information report was lodged on 30.06.1995 and, hence, there is delay in lodging the first information report. 13. However, an explanation has been given that the prosecution party was requesting the accused persons for the release of victim and P.W. 4, the father of Anil Singh, has also approached and approaching the accused persons for the release. 14. However, the prosecution case in fardbeyan of the informant lodged after three days of the occurrence that P.Ws. 1, 2 and 3 were witnesses of the occurrence and occurrence took place while they were going with Anil Singh in funeral of Ramadhar Singh. 15. However, the prosecution claims that they are eye witnesses to the occurrence and P.W. 5, the informant, stated that Ram Naresh, Prabhu and Arvind are the witnesses of the occurrence who were going in the funeral of Ramadhar Singh and have seen the kidnapping of his brother. However, from the fardbeyan two facts emerged that from the fardbeyan that the brother of the victim was going in the funeral and, further, the fact that three witnesses, P.Ws. 1, 2 and 3, were also going in the funeral of Ramadhar Singh to burning 7 ghat at the bank of river Ganges. This fact also find place in the fardbeyan, dated 30.06.1995, and protest petition filed by the informant on 14.12.1995, which has been marked as Exhibit 2. Hence, the prosecution case remained consistent till 14.12.1995 that Anil Singh was going in the funeral along with P.Ws. 1, 2 and 3 and the informant learnt from three witnesses (P.Ws. 1, 2 and 3) about the occurrence. However, the informant, subsequently, at the stage of trial, transposed himself from hear-say to eye witness and claimed himself to be a member of the funeral party and was following P.Ws. 1, 2 and 3 and Anil Singh was also with them, few steps ahead. However, P.W. 5, the informant, in his cross examination, in paragraph 19, has stated that he received intimation of proceeding of funeral of Ramadhar Singh at about 02.00 p.m. and at that Anil said that he was going in funeral and he proceeded. He has, further, stated that at the time when he received the intimation for attending the funeral, he was going to take bath. He has, further, stated that he proceeded from his house after half and hour Anil Singh has proceeded. He has, further, stated that he did not meet the funeral in way to Ganga ghat and, hence, apparently the evidence of this witness suffers from many infirmities. According to this witness, his brother proceeded half an hour prior to him to attend the funeral, but, claim that witnesses were going a few steps behind Anil Singh. It can well be imagined that when Anil Singh has proceeded half an hour prior to this witness proceed then the possibility of his meeting with Anil in way is not only very remote, but, impossible when he has stated that Anil proceeded in the funeral. Further, this witness has stated in 8 fardbeyan and written report he learnt from P.Ws. 1, 2 and 3 he claims to be eye witness and was going with P.Ws. 1, 2 and 3 and, hence, the evidence of this witness suffers from development and contradiction from his earlier statement in the fardbeyan as well as protest petition. 16. However, so far the evidence of P.Ws. 1, 2 and 3 is concerned, they also have claimed that they were going with P.W. 5. They have admitted in their evidence that they proceeded much after the funeral of Ramadhar Singh proceeded. P.W. 3 has stated that he proceeded after one hour the funeral proceeded. Hence, the evidence of the witness is only that they proceeded much later than the funeral of Ramadhar Singh proceeded. They did not met the funeral either when they proceeded or in way whereas Anil Singh proceeded half an hour before them with funeral of Ramadhar Singh, but, they claim that they were proceeding only few steps behind Anil Singh, which is highly improbable. A person in just half an hour before can not proceed only 100 steps and, hence, they have deposed that they proceeded much after the proceeding of the funeral and they did not find out the funeral. After the occurrence P.W. 5 fled away to Ganga Ghat and there he took bath and returned straightway. However, this conduct also appears to be not reasonable as this witness stated that Rash Bihari asked him to flee away else he will shot whereas P.Ws. 2 and 3 have stated that they made a prayer to the accused persons when they kidnapped Anil Singh. P.W. 2, however, stated that after the kidnapping the accused persons asked them to flee away and, thereafter, they went to the river Ganges and took bath and returned to village. However, in his cross 9 examination he has stated that after the occurrence he went alone to the Ghat and he did not see Prabhu Singh and Ashok Singh and he saw the dead body on the funeral pyre though have admitted that in his entire way he did not find the funeral nor any person met who was going in the funeral and P.W. 3 has also stated that they did not find the funeral. P.W. 3 in his evidence has also stated that he proceeded to attend the funeral after one hour when he received the intimation and he reached at the Ganga Ghat at his normal speed. P.W. 5 has, further, stated that he returned from Ganga Ghat, no one met him and after returning he did not disclose the fact to any one and the discussion about the occurrence took place in the village after 1-2 days. 17. The circumstance is that the occurrence took place before him, the parties were in inimical terms, the litigations were going on, but, there is delay in lodging the first information report. However, two situations emerged from this fact, the one fact is that Anil was traceless and was not being found out and, hence, the attempt was being made to look out him and so the case was not lodged, the other situation has explained by the prosecution case that they were attempting for release from the accused persons. However, it has emerged that they tried to contact, but, were not unable to contact the accused persons as accused persons were fleeing away, however, there is no evidence that the accused persons assured about the release and if there was no assurance then it was not prudent or expected that the prosecution will remain even after being an eye witness of the occurrence not to report to police and, hence, explanation that they 10 were trying for the release is not acceptable and only probability is that they had not seen the occurrence and, hence, not assured who had kidnapped and on due deliberation prosecution filed by P.W. 5 claimed that P.Ws. 1, 2 and 3 are the eye witnesses to the occurrence of kidnapping while were proceeding in funeral of Ramadhar Singh. However, P.Ws. 1, 2 and 3 claimed to be eye witnesses witness and the occurrence took place in the funeral procession and P.Ws. 1, 2 and 3 were not the eye witnesses to the occurrence while they were in the funeral of Ramadhar Singh, however, the witnesses, P.Ws. 1, 2, 3 and 5 have stated that they did not meet the funeral procession in the entire period they claimed to have gone from the house to the funeral ghat, the evidence that the accused persons proceeding after about half an hour after the funeral procession proceeded and it is stated that Anil Singh proceeded half an hour prior to the witnesses proceeded to attend the funeral and, hence, the probability of the witness having met and seen the occurrence is very remote and P.W. 5 and other witnesses have developed the prosecution case from the stage of first information report to the subsequent stage of investigation and trial and the only consistency is in the evidence of these witnesses are parrot like statement regarding the kidnapping of Anil Singh by eight accused persons, however, the consistency about the manner and place of occurrence is only a parrot like statement of P.Ws. 1, 2, 3 and 5, however, taking into consideration the conspicuous of the entire case the evidence of the witnesses does not fit in the prosecution case with regard to the other circumstances as delay of four days have not been 11 properly explained as it does not state that the parties are dragging the dragons in the way for four days. The informant is non-else than the brother of the victim and, hence, taking into consideration the entire evidence, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubt. 18. Hence, the conviction and sentenced recorded by the lower Court is hereby set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 28th day of September, 2011, N.A.F.R., S.A.