CRIMINAL APPEAL No.815 OF 2004 Against the judgment of conviction dated 29.9.2004 and order of sentence dated 30.9.2004 passed by Sri Ajit Kant Sharan, Additional Sessions Judge, Fast Track Court No.III, Vaishali at Hazipur in Sessions Trial No. 88 of 2003. MD. SAIYED-----------------------------------Appellant Versus STATE OF BIHAR---------------------------Respondents -------- For the Appellant:- Mr. Asok Jang Bahadur, Mr. Md. Anis Akhtar,Advcates For the State:- Mr. Ashwani Kumar Sinha, APP For the Informant:- Mr. Srinandan Prasad,Advocate P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE DHARNIDHAR JHA Mridula Mishra,J:- Challenge in this appeal is to the judgment and order dated 29.9.2004/30.9.2004 passed by Additional Sessions Judge, Fast Track Court No.III, Vaishali at Hazipur in Sessions Trial No. 88 of 2003, whereby the sole appellant has been convicted under Section 302/34 of the Indian Penal Code and 374/34 of the Indian Penal Code as well as 201 of the Indian Penal Code. The appellant has been sentenced to undergo R.I. for life for his conviction under Section 302/34 of the Indian Penal Code and fine of Rs. 5,000/-, in default of payment of fine, S.I. for six months. For conviction under Section 364/34 of the Indian Penal Code, he has been sentenced R.I. for seven years with fine of Rs.2000/- and in default of payment of fine, S.I. for two months. The appellant has been sentenced R.I. for three years for 2 conviction under Section 201 of the Indian Penal Code with fine of Rs.1,000/-, in default of payment of fine, S.I. for one month. All sentences are directed to run concurrently. 2. Background facts leading to the trial of the appellant as projected by the prosecution are as follows:- A fardbeyan of Razi Ahmad ( P.W.10) was recorded on 14.9.2002 at 11.30 P.M. in which he has stated that on 13.9.2002 at 6. P.M. in the evening, he alongwith his wife Kaushar Jahan (P.W.7) had gone to bring milk from the house of one Budhan Mian and at that time his son Rafi alias Gunni ( deceased) aged 4 and half years was sitting at the Verandah of the House. When the Informant returned back to his house, his son was found missing and a search was made in the house and nearby places but he could not be located. Some villagers also came in the meantime and helped in searching out of the boy but they could not succeed. The informant, in his fardbeyan has raised suspicion against one Syed for the reason that on 2.9.2002 Syed had some altercation with informant’s wife as she stopped him from watching television in her house. Syed had left informant’s house enhancing threat that he will take revenge from them. On the same date again Syed had come to the house of the informant, after 2-3 hours, he demanded jack fruits of informant’s daughter’s share but wife of the informant restrained him from taking away jack fruit. Syed, due to this twisted the hands of the informant’s wife and fractured one finger of her left hand, and she had to get it plastered. Syed 3 was displeased with the informant as earlier he used to take settlement of informant’s orchard, which had been taken back from him. The informant has given his orchard on annual settlement to some other person, for the reason that Syed was not furnishing its financial account and make payment to the informant. For all these reasons, Syed had enhanced threat to the informant and he suspected that Syed and Parwez, who also used to come to the house of the Informant have committed the offence of kidnapping of his son with an intention to kill him. 3. On the basis of this fardbeyan Baligaon P.S. case no. 36 of 2002 was instituted on 14.9.2002 at 4 A.M. under Section 364/34 of the Indian Penal Code against two named accused persons and subsequently Section 302/201 of the Indian Penal code was added on 16.9.2002, on recovery of the dead body of the kidnapped boy, namely, Rafi Ahmad alias Ganni. 4. There is no eye-witness to the occurrence and the case is presumably based on circumstantial evidence. Circumstances, to connect two accused persons with the alleged crime, as appearing in the evidence of witnesses is that accused persons were seen going towards the house of informant, when P.W.10 and his wife had gone to bring milk. This circumstance has been connected with those three incidents, which according to P.W.10 and P.W.7, could give motive to Saiyed and Parvez, for committing the offence. 5. The case was investigated by Shambhu Saran Prasad Singh (P.W.14), who took up investigation of the case and 4 interrogated witnesses. P.W. 14 in his deposition has stated that on 13.9.2002 while he was posted as Officer In-charge of Baligaon P.S., he received a telephonic information at 10’ clock in the night, regarding missing of a boy at village Fatehpur Kawadih. He made entry of Sanha No. 236 and proceeded for village Fatehpur Kabadih, in order to verify the message received through telephonic information. He reached at the house of Razi Ahmad in the village, recorded his fardbeyan, and took up investigation. The recorded fardbeyan was forwarded to the police Station for institution of First Information Report. He made search for the accused persons at different places, recorded statement of the wife of the informant Kaushar Jehan (P.W.7) and immediately thereafter recorded statement of the daughter of informant, namely, Rafat Jeha ( P.W.9). He made inspection of the place of occurrence which is the house of the informant, from where the son of the informant had been kidnapped. Thereafter he recorded statement of Md. Abu Murtaza alias Abu Babu ( P.W.3) and Zahirul Haque ( P.W.4). The Investigating Officer ( P.W.14) has not disclosed in his evidence that on which date and at what time he recorded the statement of the wife of the informant ( P.W.7), daughter of the informant (P.W.9) Binda Paswan,(P.W.1) (P.W.3) Md. Abu Murtaza and (P.W.4) Md. Zahirul Haque. But from his evidence, it transpires that immediately after recording the fardbeyan and before the institution of FIR he recorded restatement of informant and thereafter recorded evidence of all witnesses. The Investigating 5 Officer submitted charge-sheet on 15.11.2002. From evidence of P.W.14, it also transpires that since suspicion was raised by the informant against Md. Syed and Parwez, as such he made a search for these two persons. He apprehended Parwez but the date of arrest has not been disclosed in his deposition. Parwez was brought to the police station for interrogation and in course of interrogation he found that only when Syed is also arrested, everything regarding the occurrence will be clear. On the basis of secret information, he raided the house of Md. Syed, arrested him and in course of interrogation both of them accepted their guilt and made confession. Confessional statement of Md. Syed and Parwez was recorded, which was signed by them. They also became ready to show the place where dead body of the kidnapped boy has been concealed. Arrested accused persons were brought to the village Fatehpur Kawadi. On their indications and in presence of villagers the dead body of kidnapped boy was recovered from a ditch in the paddy field of Azizur Rahman, which was concealed under paddy straw. Seizure list was prepared. Inquest report was also prepared. The dead body was sent for post mortem. 6. In para 32 of his deposition P.W.14 has admitted that First Information Report was instituted on 14.9.2002 at 4 A.M. He had started investigation before institution of the First Information Report and the restatement of informant was recorded. In Para 47 of his cross-examination a suggestion was given to him that confessional statement of Md. Syed and Parwez are ante-dated. 6 They were arrested on 15.9.2002 and brought to the police station but intentionally the date of their arrest has been mentioned as 14.9.2002. He has admitted in his deposition that on confessional statement of accused persons, he has not taken signature of any independent witness, which is essential. He has failed to explain as to why on confessional statement of Saiyed date has been mentioned as 15.12.2002 instead of 15.9.2002. 7. Mr. Ashok Jung Bahadur, Senior Counsel, representing the appellant has submitted that right from the point of recording of the fardbeyan of the informant till submission of charge-sheet, the investigation as shown in the case diary is nothing but the master craftsmanship and ingenuinity of the police Investigating Officer. Though, P.W.14 has deposed that the dead body of the deceased was recovered on the basis of confessional statement of accused but the fact is that the dead body was recovered earlier to the recording of the confessional statement. Confessional statement was ante-dated and the two named accused persons, were falsely implicated in this case giving some motive to them on the basis of some remote incidents, not witnessed by any one except P.W.7. Everything has been done at the instance of Mukhia of Gram Panchayat, Md. Asgar Alam ( P.W.5) and Md. Zahirul Haque (P.W.4), who is sarpanch of Gram Panchayat, Md. Syed was falsely implicated, since he did not support them in the election for the post of Mukhia, in which P.W.5 and son of P.W.4 had contested for the post of Mukhia. Parwez was implicated because he 7 demanded his wages from P.W.4 and P.w.10, for his work, but P.W.4 and P.W.10, being in habit of taking work from him without any payment were not willing to make payment for his work. 8. The prosecution has examined altogether fifteen witnesses to prove the charges framed against the accused. P.W.1 Binda Paswan was the first person, who is said to have been examined by Investigating Officer, immediately after recording of the fardbeyan of P.W.10 and statement of P.W.7 and P.W.9, who are wife and daughter of the informant. This Binda Paswan has been declared hostile as he stated that he knew nothing about the occurrence. Izirahul Haque P.W.2 is the witness who had signed the inquest report, prepared on recovery of the dead body of the child. P.W.2 has stated that he heard about the missing of the son of the Informant aged about four and half years. He also heard that the kidnapped boy was killed. He saw the dead body of the kidnapped boy, when it was recovered. Inquest report was prepared and he put his signature on inquest report (Ext.1). He has shown his ignorance about the name of such persons who spread the news in the village regarding kidnapping of the boy. He has also shown his ignorance about the identity of such persons who has killed the boy. He did not remember the date on which he had gone to the Police Station. 9. Md. Abu Murtaza alias Abu Babu is P.W.3. As per his deposition on 13.9.2002 at 6-6.15 in the evening while he was sitting at his door, he saw informant Razi Ahmad ( P.W.10) and his 8 wife ( P.W.7) going to Budhan’s House for bringing milk. At that very time, he saw accused Parwez going towards the house of the informant. Thereafter P.W.3, went to his field where some labrourers were working, when he came back, he saw informant and his wife returning back to their house. The Informant and his wife, coming back to their house, found their four and half years son missing. They started searching for him but the boy could not be located. They suspected involvement of Md. Saiyed in kidnapping of their son, since one week earlier P.W.7 had some altercation with him, as he was not allowed to watch Television. Md. Syed had twisted right hand of informant’s wife and fractured one of her finger, as she did not allow him to take jack fruit. Fractured finger had to be plastered. Earlier Md. Syed had very good relationship with the informant and his son was very attached to him, since the missing son of the informant could not be located, as such they became suspicious of this fact that he has been kidnapped for killing. P.W. 3 in Para 4 has stated that the Investigating Officer came to the village in the morning of 15.9.2002 alongwith Mukhia Asgar ( P.W.5), Zahrul Haque ( P.W.4) and P.W. 3 also accompanied them. Two accused persons Md. Syed and Parwez were also with the Investigating Officer. They pointed out the ditch in the paddy field of Azzizur Rahman where the dead body had been concealed. The dead body was taken out from the ditch,in their presence, a seizure list (Ext.2)was prepared on which he put his signature, and signature of P.W.4 and two 9 accused persons were also taken. This witness has admitted that he is related to informant P.W.10 whose first wife was his sister. From the evidence of this witness, it is indicated that his house is situated at a distance of 4 to 5 Zareeb, from the house of the Informant. This witness has also admitted that he has not seen the accused persons either kidnapping the victim boy or killing him. Statement of this witness was recorded by the Police on 15.9.2002. He has also stated that there was no criminal antecedent of Md. Syed. This witness had also stated in para 23 of his deposition that only when alarm was raised by P.W.10 he come to know that his son has been kidnapped. This witness is a hearsay witness. 10. P.W.4 Md. Zahirual Haque has stated that on 13.9.2002 at 6.30 in the evening, he was going in search of some mechanic. Near the house of Abu Babu ( P.W.3), he saw Md. Syed and Parwez going towards west. He also saw Md. Ganni in the lap of Parwez. These two persons crossed the raod and went towards north. He did not suspect any wrong because earlier also Parwez used to play with the boy. P.W.4 came back after searching Mechanic. In the Night of 13.9.2002, police vehicle came at the village, as such in the next morning he went to the house of Md. Razi Ahmad to find out the reason why police jeep had come. The wife of Md. Razi Ahmad informed him that her son is missing, since previous evening. She had also shown him her fractured finger on which there was a plaster. She informed about her altercation with Md. Syed and threat enhanced by him. She suspected that her son has 10 been kidnapped by Md. Syed. P.W. 3 has not stated that any investigation was done by the Investigating Officer on 14.9.2002 in the village. As per his deposition at 4 A.M. on 15.9.2002 Investigating Officer along with P.W. 4 and P.W.5 came at the orchard of Md. Sageer. P.W.3 was also called there by the investigating Officer. Two accused persons had also been brought by the Investigating Officer. On identification of accused person the dead body of kidnapped boy had been recovered and seizure list prepared, on which P.W.4, and P.W.3 both had put their signatures. His statement was also recorded by the Investigating Officer. Deposition of this witness has disclosed that Md. Syed comes from a respectable family. This witness had admitted that though in the night of 13.9.2002 police had come in the village and he came to know about the kidnapping of the son of the informant, he did not go there to enquire and inform that in the last evening he had seen the victim boy going with Parwez and Md. Syed. He has also admitted that the Investigating Officer had called him near the orchard on 15.9.2002, as such he had gone there. A suggestion has been given to him that since Md. Syed had opposed his son in the election as such due to enmity, he has falsely deposed. 11. P.W.5 Md. Asgar Alam is the Mukhia of Bela Dargah Gram Panchayat. He had put his signature on the fard beyan as an attesting witness, which according to P.W.14, the Investigating Officer was recorded in the Night of 13.9.2002 at about 11.30. As 11 per the evidence of P.W. 5 police came at his residence at 4 A.M. on 15.9.2002 and along with the I.O. he came to the orchard. P.W. 5, who is resident of Mauza Rasulpur, has stated that on 13.9.2002 at 7 P.M. in the evening, he had come to village Kawadih, and came to know about the kidnapping of the son of Md. Razi, aged about four and half years. He went to the house of Md. Razi Ahmad, met him and his wife. They narrated before him that on 13.9.2002 at 6 O’clock in the evening they had gone to bring milk, on way, they met Md. Parwez, who was coming towards their house. When they came back after fetching milk from Budhan’s house, their son was found missing. Their son had been playing at the Verandah, when they had left for fetching mild. They suspected that it might have been done by Md. Syed, since he had some altercation with P.W. 7 on 2.9.2002 Md. Syed had also twisted her finger, due to which finger had to be plastered. Md. Syed had also enhanced threat to them that he will teach them a lesson. P.W. 5, in para 3 of deposition has disclosed that for the first time he met the investigating officer, at 4 A.M. on 15.9.2002, when police came at his residence and brought him to the orchard. The Investigating Officer brought him along with two accused persons and others at the Orchard of Sageer Ahmad, and from a ditch, in the paddy field of Azizur Rahman the dead body of the boy was recovered. Eyes of the deceased were bulging out, his tongue protruded and blood coming out from the mouth and nostrils. Subsequently he came to know that Md. Syed used to take settlement of the orchard of Razi 12 Ahmad but for this year it was settled with some other person. P.W.5 is a hearsay witness, as per his deposition, he has not witnessed either kidnapping of the victim or killing by any one. Whatever he has deposed regarding motive alleged against accused that is on the basis of the disclosure made by the wife of Md. Razi Ahmad. P.W.5 has stated that his statement was recorded by the Police on the day the dead body was recovered. In para 12 of his deposition, this witness had admitted that no complaint had been made by P.W. 10 and P.W. 7 at Gram Panchayat, against Md. Syed regarding twisting of the finger of P.W. 7 or enhancing threat. He has also admitted that prior to this Md. Syed had never been roped in any criminal case. This witness has also admitted in para 14 that on 13.9.2002 he had information regarding the kidnapping of Razi Ahmad’s son, but at that time suspicion was raised only against Parwez Sah. So far name of Syed is concerned, he came to know only after the arrival of the Police on 15.9.2002. Suggestion has been given to this witness that since, Syed had opposed him in the election, he has falsely deposed against him. 12. P.W.6 Abdul Qyum has stated that on 13.9.2002 at 6.30 P.M., he was coming from Chiknauta Bazar after purchasing some medicines, while returning to his house he saw Md. Syed alongwith Md. Rafi Ahmad alias Ganni, four and half years son of Md. Razi Ahmad. The boy was in the lap of Md. Syed and he was going towards the orchard crossing the road and accused Parwez was 13 also with him. P.W.6 came back to his house. Next day in the morning, he came to know about the kidnapping of the son of Md. Razi Ahmad. On third day, he came to know that dead body of victim boy has been recovered from the orchard. Thereafter he came to the house of Razi Ahmad and knew about the incident. This witness is resident of village Patehpur, which is situated in the district of Muzaffarpur and the place of occurrence is at village Kawadih, within the jurisdiction of Vaishali district. In para 6 of his deposition, P.W.6 has admitted that his house is situated at a distance of half kilometers from the house of informant Razi Ahmad. He has admitted in para 10 of his deposition that there are two roads from Chiknauta to Patehpur, one is pitched road and other is the muddy village road. The road which passes through village Kawadih is the muddy road and during rainy season, it is filled with water. He was cross examined, for the reason that the occurrence had taken place in the rainy season and there was least probability of this witness ofpassing through village Kawadih, while coming from Chiknauta Bazar. P.W. 6 had no reason of witnessing the accused persons taking away the victim boy. This witness has also admitted in para 16 of his deposition that Md. Syed comes from a respectable family. Statement of this witness was also recorded on 15.9.2002 as per his statement in Para 7 of his deposition. 13. P.W.6 in para 15 of his deposition has admitted that he has instituted a case against the father of Md. Syed and contesting 14 if, in connection with purchase of some land from Baiju Mahto. A suggestion has also been given to this witness that due to this enmity he has falsely deposed in the case. 14. Kaushar Jehan ( P.W.7) is the wife of the informant and mother of victim boy Rafi alias Ganni. As per her deposition, on 13.9.2002 at 6.30 in the evening she along with her husband Razi Ahmad had gone to fetch milk from Budhan’s House. At that time her daughter P.W. 9 was cooking food and her son Md. Rafi @ Ganni was playing at Darwaja. While going, on way she met Parwez, who was going towards her house. She asked Parwez for putting manure in her field and he replied that he will do it tomorrow. When she came back her son was not found there. She asked her daughter, who replied that Ganni had been playing at Darwaja and Parwez might have taken him. Parwez and Syed earlier also used to play with her son. She along with others started looking for her missing boy. They also came to the house of Syed and Parwez and asked about her son. They replied that, they had last seen Ganni at 4 O’clock playing at Darwaja. The boy was searched every where in the village, but he could not be found. She came to know from rumor that someone has heard cry of a child, coming from orchard. She along with her husband went towards orchard but there also did not find any sign of her son. Sayed was displeased with them as they have refused to give him settlement of orchard, though earlier he used to take annual settlement of orchard. She had also stopped him from watching television in her 15 house and that was also one of the reason for his displeasure. She had also restrained him from taking away jack fruit, and for that he had twisted her finger and enhanced threat to teach her lesson. For all these incidents, she suspected that Md. Syed and Parwez had kidnapped her son. As per her deposition, dead body of her son could be recovered by the police when it was pointed out by Md. Syed and Parwez, in presence of other witnesses. 15. P.W.7 in para 14 of her deposition has stated that in between her house and the house of Budhan, there is house of Abu Babu (P.W.3) but on the date of occurrence, while going to Budhan’s House they did not meet P.W.3, since, he was inside the house. This statement of P.W.7 completely contradicts the evidence of P.W.3, who has stated that he saw the informant and his wife going towards Budhan House in