Patna High Court
Kapil Bind Choudhary And Ors vs State Of Bihar on 15 May, 2019
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava, Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.419 of 1994
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Shiv Kumar Choudhary, Son of Tahsildar Choudhary, Resident of Village
Govindpur, Police Station Sahpur, District Bhojpur
... ... Appellant/s
Versus
STATE OF BIHAR
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 436 of 1994
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1. Kapil Bind (Choudhary), Son of Bibhikshan Choudhary
2. Shatrughan Bind, Son of Heera Bind
3. Hirdya Bind, Son of Punwasi Bind
All resident of village Gaura, P.s. Bihiyan, District - Bhojpur (Arrah)
4. Balmiki Choudhary, Son of Kailash Muni Kailash Muni Choudhary,
Resident of village Govindpur, P.S. Sahpur, District Bhojpur (Arrah)
... ... Appellant/s
Versus
STATE OF BIHAR
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) Nos. 419 of 1994 & 439 of 1994
For the Appellant/s : M/s Rajendra Prasad, Sr. Advocate
Parmod Kumar, Ritesh Kumar and
Dhirendra Kumar
For the Respondent/s : Mr. Dilip Kumar Sinha
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
and
HONOURABLE MR. JUSTICE RAJENDRA KUMAR
MISHRA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA)
Date : 16-05-2019
Both the above stated criminal appeals have been
preferred against Judgment of conviction and sentence Order
Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019
2/33
dated 18.8.1994 and 22.8.1994 respectively passed by learned
Sessions Judge, Bhojpur at Arrah, in Sessions Trial No. 210 of
1990, arising out of Shahpur P.S. Case No. 106 of 1988 by
which and whereunder the learned Sessions Judge convicted all
the appellants for the offences punishable under Sections
364/307/302of the Indian Penal Code and 27 of the Arms Act and sentenced them to undergo imprisonment for life under Section 302 of the Indian Penal Code, to undergo rigorous imprisonment for 10 years under Section 307 of the Indian Penal Code, to undergo rigorous imprisonment for 7 years under Section 364 of the Indian Penal Code and to undergo rigorous imprisonment for two years under Section 27 of the Arms Act. Since both the aforesaid criminal appeals were heard together, common judgment is being passed in both the above stated criminal appeals.
2. Briefly stated the prosecution case is that P.W. 7, namely, Sudarshan Ram, on 25.8.1988 gave written report to Officer-in-Charge of Shahpur Police Station stating therein that on 24.8.1988 at about 6.00 P.M., his son, namely, Prashuram Ram aged about 18 years along with Paras Ram ( PW-4) and Ram Awatar Ram ( PW- 5) had gone to Haha Bahiyar (ridge) on Dengy (small boat) for fishing and while they were fishing, Hari Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 3/33 Bind, Shatrughan Bind, Kapil Chaudhary, Balmiki Choudhary came there and on the point of rifle and guns took Prashuram Ram, Paras Ram and Ram Awatar Ram with their Dengy towards Gaura village and in spite of hectic search, he as well as other villagers could not succeed to trace out whereabout the aforesaid three persons. PW-7 further stated in his written report that aforesaid three persons were taken away by the FIR named accused on account of litigation. PW-7 further stated in his written report that he came to know about the alleged occurrence from Sheo Bhajan Rai (PW- 3) and Subh Dayal Ram (not examined).
3. On the basis of aforesaid written report Shahpur P.S. Case No. 106 of 1988 for the offence punishable under Sections 363 of the Indian Penal Code and 27 of Arms Act was registered and, accordingly, on the same day that is 25.8.1988 at about 6.30 P.M., formal first information report was drawn up against appellants and accused Hari Bind, Shatrughan Bind, Kapil Bind and Balmiki Choudhary for the above stated offences punishable under Section 363 of the Indian Penal Code and 27 of the Arms Act. The formal first information report and the written report were put up before Chief Judicial Magistrate on 30.8.1988, though the same is said Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 4/33 to be dispatched from Police Station on 26.8.1988.
4. PW-9 Rang Nath Tripathi, the then A.S.I. of Shahpur Police Station took the charge of investigation on 25.8.1988 and went along with Abdul Rahman (PW- 8), the then Officer-in-Charge of Shahpur Police Station, to place of occurrence at about 7 P.M.. He recorded the further statement of PW- 7 as well as statements of PW- 1 Khalifa Bind, P.W. 2 Sri Kishun Yadav but due to heavy rain, he could not inspect the place of occurrence. He again visited the place of occurrence along with Abdul Rahman ( PW- 8) on 26.8.1988 at about 2.15 P.M. and inspected the place of occurrence on the basis of identification of PW- 7. He recorded the statements of witnesses and came to know that two kidnapped boys have already returned. He met some other villagers but before completion of investigation, he handed over charge of investigation to PW- 8 (Abdul Rahman) on 29.8.1988.
5. P.W. 8 Abdul Rahman along with PW-. 9 Rang Nath Tripathi and others again visited the place of occurrence on 29.8.1988 and recorded the statement of some witnesses, raided the house of accused persons but they were found absconding. However, before completion of investigation Abdul Rahman (PW-. 8) handed over charge to Kishor Kumar Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 5/33 Shrivastava ( PW- 10) who, after taking charge of investigation, again recorded the statement of PW-7 on 16.9.1989 as well as statements of some witnesses and after completion of investigation, he submitted charge-sheet against seven persons including appellants on the direction of superior officer.
6. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual course.
7. The appellants along with charge-sheeted accused Hari Bind and Birju Bind were put on trial and, accordingly, appellants as well as the above stated charge- sheeted accused stood charged for the offences punishable under Sections 364, 307, 302 of the Indian Penal Code and 27 of the Arms Act. The appellants and other accused denied the charges and claimed to be tried.
8. In course of trial, altogether, 11 witnesses were examined by the prosecution and apart from this, fard-e-beyan, charge-sheet, formal first information report, endorsement of fard-e-beyan and proceedings of Society were exhibited as documentary evidence. The statements of appellants and other accused were recorded under Section 313 of the Cr.P.C., in which they reiterated their innocence and claimed their false implication. It is pertinent to note here that during pendency of Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 6/33 the trial, co-accused Birju Bind died and, accordingly, the proceeding of Sessions Trial No. 210/90 stood dropped against him. It is further pertinent to note here that present criminal appeals have been filed by appellants Shiv Kumar Choudhary, Kapil Choudhary, Balmiki Choudhary, Shatrughan Bind and Hridya Bind and it is not clear as to whether convicted accused Hari Bind has preferred any appeal or not because no appeal filed on behalf of convicted accused Hari Bind has been placed before this Bench.
9. No evidence was adduced by the appellants in support of their defence but from perusal of statements made by the appellants under Section 313 of the Cr.P.C. as well as trends of cross-examination of prosecution witnesses it would appear that appellants claimed their false implication on account of previous dispute in connection with Fisheries Society.
10. Learned trial court after analysing the prosecution evidence, convicted and sentenced the appellants as well as co-convict Hari Bind having relied upon testimonies of PW-1, PW- 2, PW- 3, PW- 4, PW-. 5, PW- 6 and PW-7.
10. Learned counsel appearing for the appellants assailed the impugned Judgment of conviction and sentence Order arguing that the learned trial court failed to appreciate the Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 7/33 prosecution evidence in its right perspective. Continuing his submission, he submitted that, according to the prosecution case itself, PW-1, PW-. 2, PW-. 6 and PW- 7 had not seen the actual occurrence rather they came to know about the occurrence from Sheo Bhajan Bind (PW- 3) and one Shubh Dayal Ram, who was not examined by the prosecution. He, further, submitted that P.W. 3 Sheo Bhajan Bind claimed that he had seen the appellants and other accused taking away Prashuram Ram, Paras Bind (PW- 4) as well as Ram Auta Bind (PW- 5) but Sheo Bhajan Bind (PW- 3) did not claim to have seen the appellants and others killing Prashuram Ram. He, further, submitted that PW- 4 and PW- 5 claimed themselves to be victim of the alleged occurrence as they claimed that they were with Prashuram Ram and appellants and their associates tied their hands and legs with rope and, similarly, they tied hands and legs of Prashuram and they as well as Prashuram were thrown into river by the appellants and their associates but, any how, they got untied themselves and came out from river but Prashuram could not succeed to untie the rope, as a result whereof, he drown into the river. Learned counsel of the appellants submits that the claim of PW- 4 and PW-5 does not appear to be convincing and, moreover, the statements of PW-4 and PW- 5 were recorded Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 8/33 after three days of the alleged occurrence. He further submitted that the story as propounded by the prosecution is not believable and probable, particularly, taking into consideration the contradictions and improvements occurred in the testimonies of prosecution witnesses but learned trial court failed to take note of contradictions and improvements occurred in the depositions of prosecution witnesses. He, further, submitted that according to the prosecution case, the alleged occurrence took place on 24.8.1988 and on the same day PW-7 (informant) and others got information about the alleged occurrence but PW- 7 gave written report to police on 25.8.1988 i.e., after one day of the alleged occurrence, whereas the concerned Police Station was not away from the village of PW- 7 as well as from place of occurrence. He, further, submitted that, as a matter of fact, the written report of informant (PW-. 7) is an antedated document and that was the reason the aforesaid written report was placed before learned Chief Judicial Magistrate on 30.8.1988, i.e., after six days of the alleged occurrence. He, further, submitted that PW-7 as well as some other prosecution witnesses admitted that there was dispute between them and appellants on the point of settlement of fishing. He, further, submitted that the prosecution witnesses admitted that the settlement made in favour of society Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 9/33 had already been set aside by competent authority and the appellants got settlement of fishing and, therefore, there was no occasion to appellants to commit the alleged offence rather it were prosecution party, who had grievances against the appellants after setting aside the settlement of society and, therefore, the aforesaid fact clearly goes to show that the prosecution party falsely implicated the appellants. He, further, submitted that, moreover, except PW- 4 and PW-5, not a single prosecution witness claimed to have seen the throwing of PW- 4 and PW-5 along with victim Prashuram into the river by the appellants and so far as the statements of PW-4 and PW- 5 are concerned, the same are not free from doubt as they surfaced before the police officials after three days of the alleged occurrence and, therefore, in the aforesaid circumstance the appellants are entitled to get benefit of doubt and the impugned Judgment of conviction and sentence Order are liable to be set aside.
11. On the other hand, learned Additional Public Prosecutor appearing for the State supported the impugned Judgment of conviction and sentence Order arguing that PW- 3 Shiv Bhajan Bind, specifically, stated before the court as well as in course of investigation that he had seen the appellants and Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 10/33 others taking away PW- 4, PW- 5 and victim Prashuram Bind on their Dengy and, therefore, the aforesaid witness proved the factum of taking away victim and others. He, further, submitted that PW-4 and PW- 5 are eye witnesses and they, specifically, stated that they along with victim Prashuram Ram were forcibly taken away by the appellants and others and were thrown into the river by the appellants and others after tying their legs and hands as a result whereof victim Prashuram Ram drowned into river. He, further, submitted that PW- 8 and PW- 9 proved the place of occurrence and, therefore, it is obvious that the prosecution has, successfully, proved its case beyond all shadow of reasonable doubts and, therefore, there is no need to interfere into the impugned Judgment of conviction and sentence Order
12. Having heard the rival contentions of the parties, I went through the records along with the lower court records.
13. The questions arise for determination as to whether the learned trial court has properly appreciated the prosecution evidence and came to right conclusion and as to whether the impugned Judgment of conviction and sentence order can be sustained or not.
14. As, I have already stated that prosecution Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 11/33 examined, altogether, 11 prosecution witnesses. Out of them PW- 1, PW- 2, PW- 6 and PW- 7 are hearsay witnesses, whereas PW-3 claimed to have seen the first phase of occurrence and PW-4 and PW- 5 claimed themselves victims as well as claimed to have seen the appellants and their associates throwing victim Prashuram Ram into river after tying his hands and legs. So far as PW-8, PW-9 and PW-10 are concerned, they are Investigating Officers whereas PW- 11 is a formal witnesses, who has proved the proceedings dated 8.11.1987 of Bihia -Shahpur Matasyajivi Sahyog Samiti.
15. PW- 1 Khalifa Bind, PW- 2 Sri Kishun Yadav, PW- 6 Sri Bhagwan Yadav and PW- 7 Sudarshan Ram (informant) claimed that on the alleged date of occurrence at about 6 P.M. they were sitting at Shiv temple of their village and, in the meantime, PW- 3 Sheo Bhajan Bind and one Shubh Dayal Ram of their village came there and informed that PW- 4 Paras Bind, Ram Autar Bind and Prashuram Ram while they were fishing in Haha Bahiyar river on their Dengi, six to seven persons armed with rifle and gun came there and forcibly taken away aforesaid three persons on their Dengi towards Gaura river. PW-3 and Shubh Dayal Ram disclosed that they had identified Hari Bind, Shatrughan Bind, Kapil Mallah, Balmiki Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 12/33 Mallah and Sheo Kumar Master, out of the aforesaid 6 - 7 persons.
16. PW-1 Khalifa Bind claimed that having got the aforesaid information, he along with others went to Haha Bahiyar in search of kidnapped persons but he as well as others could not succeed to trace out the above stated persons. PW-1, further, claimed that on next morning, he went to village Gaura, Govindpur, Damodar Pur and Suhiya in search of above stated kidnapped persons. He, further, claimed that he as well as others went to several villages but they could not succeed to trace out the whereabouts of the kidnapped persons. PW-1, further, claimed that after three days of the alleged occurrence, PW- 4 Paras Bind and PW-5 Ram Autar Bind returned to their village and disclosed that appellants and their associates took them as well as Prashuram Ram near Damodarpur and on the order of accused Hari Bind, appellant Shatrughan Bind tied hands and legs of all the above stated three persons and threw them in the mid of Gaura river but they, anyhow, untied themselves and got saved themselves but Prashuram drowned into the water. PW- 1, further, claimed that the dead-body of victim Prashuram as well as the Dengi could not be traced out. PW-1, further, admitted that his statement before the police was recorded on the next Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 13/33 day of alleged occurrence. PW-1 also claimed in his deposition that he was member of Bihia-Sahpur Matasyajivi Sahyog Samiti and at the time of alleged occurrence, PW-7 Sudarshan Ram was treasurer of the aforesaid Samiti. P.W. 1, further, claimed that the aforesaid Samiti had taken Suhiya Bhagar and Jalkar in settlement from the Government in the year 1988 for three years and Hare Ram Bind had taken the aforesaid Jalkar in settlement for three years from the Samiti and PW-7 was partner with Hare Ram Bind in the aforesaid settlement. He, further, claimed that prior to 1987 the accused Hari Bind had taken settlement of the above stated Jalkar from the Government but when the Samiti took settlement of the said Jalkar in the year 1988, the same caused annoyance to accused Hari Bind. He, further, claimed that Haha Bahiyar is a seasonal river and at the time of alleged occurrence, Haha Bahiyar was filled with rainy water. He further admitted that after settlement of the aforesaid Bhagar and Jalkar he as well as others used fishing from the aforesaid Bhagar and Jalkar but when the said settled Bhagar seized, they were stopped from fishing. He, further, admitted that on the petition of appellant Hari Bind the settlement of the said Bhagar was cancelled. He also admitted that during period of settlement the appellants never stopped them from fishing Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 14/33 into the said Bhagar. This witness, further, admitted that he got information about taking of victim and others at Shivala at about 6.00 P.M. and having got the aforesaid information. He as well as others went to Haha Bahiyar but he as well as others did not find victim and others and returned to their village and again in the morning of next day he as well as others went in search of victim and others. He, further, stated that he visited several villages in search of the victim and others and returned to his home at 4.00 P.M. He, further, admitted that in course of search he visited Shahpur but he did not go to Shahpur Police Station and returned to his home. This witness, further, stated that he along with Sri Kishun Yadav ( PW-2), Baidnath Yadav, Sriniwas, Sri Bhagwan Yadav (PW-6), Sonadhari Bind and Sudarshan Ram (PW-7) went to Shahpur Police Station where he remained till 10.00 P.M. and the first information report was lodged at Shahpur Police Station but his statement was not recorded at Shahpur Police Station. This witness, further, stated that again in next morning he as well as above stated persons went to Shahpur Police Station where his statement was recorded. He, further, admitted that he again visited Shahpur Police Station along with PW-4 and PW-5 and others when PW-4 and PW-5 returned to their village. He also admitted that Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 15/33 the statement of PW-4 and PW-5 was recorded at Shahpur Police Station. He, further, admitted that Daroga Ji visited Shahpur Police Station along with him and others on Friday. He admitted at paragraph 52 of his cross-examination that he had not made statement before the police regarding taking Suhiya Bhagar on settlement by Matasyajivi Sahyog Samiti nor had stated before the police that appellant Hari Bind had taken the aforesaid Bhagar in settlement in the year 1987. This witness claimed that he had made statement before police, to this effect, that Shubh Dayal Ram and Sheo Bhajan had named Sheo Kumar Master. This witness denied the suggestion of defence that he had not made statement before the police, to this effect, that PW-4 and PW-5 had disclosed before him that they were taken by appellants and others to Gaura village from where they were taken to Damodarpur and on the direction of appellant Hari Bind, appellant Shatrughan Bind tied hands and legs of victim as well as PW-4 and PW-5 and threw them in the mid of Ganga river but PW-4 and PW-5 got releaseed themselves after untying the rope. This witness, further, stated that he had stated before the police that PW-4 and PW-5 had disclosed the name of appellant Hridya Bind and Birju Bind. However, PW- 10 Kishore Kumar Shrivastava, one of the Investigating Officers Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 16/33 of this case, admitted at paragraph 7 of his cross-examination that PW-1 had not made statement before him, to this effect, that he had gone to village Gaura etc. in search of victim, PW-4 and PW-5 and, furthermore, PW-1 had not made statement before him, to this effect, that PW-4 and PW-5 had disclosed to him that hands and legs of victim as well as their hands and legs were tied by Shatrughan Bind on the order of Hari Bind and after that they were thrown into mid of Ganga river and PW-4 and PW-5 got released themselves untying the rope but victim Prashuram could not succeed to untie the rope, as a result whereof, he drown into river. PW-10 Kishore Kumar Shrivastava, further, admitted that PW -1 had not disclosed name of Hridya and Birju.
17. After combined perusal of depositions of PW-1 and PW-10, it is explicit clear that PW -1 is neither the witness of so-called kidnapping nor the witness of throwing of PW-4 and PW-5 and victim into the river. It is also obvious that this witness claimed before the Court that PW-4 and PW-5 had disclosed the manner of occurrence before him but he did not disclose the aforesaid fact before PW-10 in course of investigation and, for the first time, before the Court he claimed that PW-4 and PW-5 had disclosed the manner of occurrence Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 17/33 before him. Moreover, this witness happens to be the cousin brother of PW -7 and, therefore, in my opinion, no reliance can safely be placed upon the statement of this witness.
18. PW-2 Sri Kishun Yadav also claimed that he along with PW -1 Kahlifa Bind, PW-6 Sri Bhagwan Yadav and PW 7 Sudarshan Ram, was sitting at Shivala where Subh Dayal and PW-3 Sheo Bhajan Bind came and gave information in respect of kidnapping of PW-4 and PW-5 and victim. This witness claimed PW-3 Sheo Bhajan Bind and Subh Dayal Ram disclosed that they had identified Hari, Shatrughan, Kapil, Sheo Kumar Master and Balmiki. This witness repeated almost similar statement as made by PW-1. This witness claimed that having got the aforesaid information, he as well as others went to Haha Bahiyar in search of victims but could not succeed to trace them out. He, further, claimed that again on the next date, he as well as others visited several villages in search of the victims but whereabouts of the victims could not be ascertained. This witness claimed that next day of the alleged occurrence, he made statement before the police in his village. He, further, admitted after three days of the alleged occurrence, PW-4 and PW-5 returned to the village and disclosed the manner in which they were kidnapped and thrown into the river by the appellants Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 18/33 and, for the first time, PW-4 and PW-5 disclosed the name of Hridya and Birju. However, this witness failed to identify the accused before the court and admitted that he could not identify the accused as the accused persons were not known to him from before. This witness, further, admitted that there was Police Chauki in village Gaura and the distance between Gaura Gaon as well as his village at about one Kos. This witness happens to be the co-villagers of the PW-7. This witness, further, admitted that on the next day of the alleged occurrence, he as well as others again went to several villages in search of victims but they failed to trace out the victims and returned to their respective homes at about 6.00 P.M. This witness, further, admitted that police came at his village in the night of the next day of the alleged occurrence. This witness, further, admitted that PW-4 and PW-5 came in village on the third day of the alleged occurrence between 7.00 - 8.00 A.M. and he met PW-4 and PW-5 at Shivala. This witness admitted at paragraph 23 of the cross-examination that he had not stated before Daroga, to this effect, that he along with PW-1, PW-6 and PW-7 was sitting at Shivala but he had stated before Daroga that he had got information in respect of the alleged occurrence from Subh Dayal as well as PW-3 Sheo Bhajan. This witness also claimed Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 19/33 that he had disclosed before Daroga the name of Sheo Kumar Master. However, PW-9 Rang Nath Tripathi, the another Investigating Officer of the case at paragraph 30 of his cross- examination stated that PW-2 had not claimed before him that PW-3 and Subh Dayal had disclosed the name of Sheo Kumar Master and, furthermore, PW-2 had not stated before him that he along with PW - 1 and PW-6 and PW 7 was sitting at Shivala where he as well as others got information about the alleged occurrence from Subh Dayal and PW-3 Sheo Bhajan Bind. After analysing the statement of this witness, I find that the appellants were not known to this witness from before and this witness failed to identify some of the appellants before court. Moreover, for the first time, this witness claimed before the court that he came to know about the alleged occurrence from Subh Dayal as well as PW-3 Sheo Bhajan Bind. Therefore, in my opinion, it is difficult to place reliance upon the statement of this witness. However, even if this witness is treated to be trustworthy, then also according to the statement of this witness itself, he had not seen either the occurrence of kidnapping or the occurrence of throwing the victims into the river.
19. PW-3 Sheo Bhajan Bind claimed himself to be eye witness of the first phase of the alleged occurrence. This Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 20/33 witness claimed that he along with Subh Dayal was fishing in Haha river and PW-4, PW-5 as well as victim Prashuram were also fishing in the said river at the distance of 90 yards. This witness claimed that 6 - 7 persons came from Bimari Gaon and he identified Kapil Mallah, Balmiki Mallah, Hari Bind, Shatrughan Bind and Sheo Kumar Master amongsts the aforesaid persons. The above stated persons were armed with firearms and they forcibly sat on the Dengi of PW 4 Ram Awtar Bind and forcibly proceeded towards Gaura village on the aforesaid Dengi. He, further, claimed that when after sometime PW-4, PW-5 and victim as well as the aforesaid persons did not return, he along with Subh Dayal went to their village and gave information to PW-2, PW -6, PW-7 and others regarding the aforesaid occurrence and after that he along with aforesaid persons again came to Haha Bahiyar river but they did not find victims. He, further, claimed that after three days of the alleged occurrence, PW-4 and PW-5 returned to their village and disclosed about the second phase of occurrence and also disclosed the name of Hridya and Birju. This witness admitted at paragraph 17 of his cross-examination that while the appellants were taking away PW-4 and PW-5 and victim Prashuram, there was scuffle between appellants and PW-4, Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 21/33 PW-5 and PW7. This witness, further, admitted at paragraph 19 of his cross-examination that he had not made statement before the Daroga but he had made statement before an officer of police. This witness, further, admitted that he had made statement before the aforesaid officer after 5-6 months of the alleged occurrence and the aforesaid officer wrote his statement. This witness, further, admitted that he is cousin brother of PW-
7. The perusal of statement of this witness goes to show that he made statement before police after 5-6 months of the alleged occurrence and no explanation regarding the aforesaid delay has been given by this witness. Moreover, this witness happens to be the cousin brother of PW-7 and the statement of this witness is contrary to the statements made by PW-4 and PW-5 because PW-4 and PW-5 admitted in their respective statements that when appellants and other accused came at Haha Bahiyar, they requested the PW-4 and PW-5 and victim to drop them at Damodarpur but this witness claimed that when appellant and other accused boarded on the Dengi, they scuffled with PW-4, PW-5 and victim Prashuram, therefore, in the aforesaid circumstance, it is very difficult to rely upon the statement of this witness.
20. PW-4 Paras Bind claimed himself to be the Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 22/33 victim of the alleged occurrence. This witness claims that he along with PW-5 and victim Prashuram was fishing in Haha river on Dengi. The appellants and others came from Bimari Gaon and at that time they armed with firearms. The appellants and other accused requested them to drop them at village Gaura through Dengi and after that he as well as PW-5 and victim Prashuram along with appellants and others proceeded to village Gaura on Dengi reached at village Gaura, the appellants and others requested them to drop at Damodarpur but while they were approaching to Damodapur, the appellant Shatrughan Bind on the order of appellant Hari Bind tied their hands and legs with nylon rope and threw them in the mid of Ganga river. This witness claims that, any how, he untied the rope by his teeth. He reached at a forest by swimming and found PW-5, who had also reached there but he did not see victim Prashuram. He, further, claimed that he as well as PW-5 searched the victim Prashuram but they could not succeed to trace him out. He, further, claimed that he as well as PW-5 raised alarm but no one turned up to help them as it was night. He, further, claimed that in next morning, he as well as PW-5 again searched victim Prashuram but they could not find him and then they guessed that victim Prashuram might have died due to drowning. PW-4, further, Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 23/33 admitted that the dead-body of Prashuram was never found. He, further, claimed that he as well as PW-5 proceeded ahead and while they were on their way, three shepherds met them and they provided meals to them. He, further, admitted that on the same day at about 5.00 P.M., he as well as PW-5 went village Gareria where they stayed at the house of one Birbal Bind and from village Gareria, they went to Lalganj from where they came to Balia on tractor and from Balia, they came to Buxar by a bus and, thereafter, they came to Belauti and after three days of the alleged occurrence, they came to their village and narrated the entire incident to PW-2, Sri Kishun Yadav, Sudarshan (PW-7), PW-3 Sheo Bhajan, PW-1 Khalifa Bind and others. He, further, claimed that on the next day, his statement was recorded by the police. This witness in his cross- examination claimed that in village Gareria, he had disclosed about the incident before about 10-15 persons. He, further, admitted in his cross-examination that there was flood water in Ganga river at the time of alleged occurrence. He also admitted that the distance between Damodarpur and Gaura village was at about two miles. He, further, admitted that there was current in the water of Ganga river at the time of alleged occurrence. He, further, admitted that the appellants had tied his both legs and Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 24/33 both hands separately whereas both hands and both legs of victim Prashuram was tied jointly. He also admitted that he as well as others were drown in the mid of river. He, further, claimed that he, any how, untied the rope of his hands. He also admitted in his cross-examination that out of the above stated three shepherds, one shepherd was of village Damodarpur and remaining two of village Gareria. This witness also admitted that while he as well as PW-5 were returning to their village, they crossed Shahpur Police Station but they did not give any information in Shahpur Police Station and on the next day, police came in his village and he as well as PW-5 along with police went to Shahpur Police Station where his statement was recorded. This witness, further, claimed that he had signed his statement, which was recorded by the police. This witness also stated that Ram Autar, Sudarhsan, Sri Kishun Yadav, Sri Bhagwan Yadav, Sheo Bhajan Bind and Khalifa Bind had also gone to Police Station along with him and the statement of aforesaid persons was also recorded by the police in his presence.
21. Almost similar statement has been given while PW-5, Ram Autar Bind, who claims himself to be victim of the alleged occurrence. However, this witness claims that Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 25/33 hands and legs of victim Prashuram was tied by the appellants after putting rope around his neck. This witness is maternal nephew of PW-1 and PW-3. This witness admitted at para 30 of his cross-examination that he does not know any person of village Gaura except the accused persons of the case. This witness, further, admitted in para 33 of his cross-examination that he went to give his statement to Police Station, where he came to know about Birju and Hridya and after that he disclosed the name of aforesaid two persons before the police. He, further, admitted at para 32 of his cross-examination that appellant Hridya and Birju were never produced before him in test identification parade as he never participated in test identification parade. He, further, admitted that dispute regarding settlement of Bhagar was going on since last one year from the alleged occurrence.
22. Perusal of statements of PW-4 and PW-5 goes to show that PW-4 and PW-5 along with victim Prashuram were thrown into mid of the river and before throwing them, allegedly, appellants had tied their hands and legs and according to the statements of aforesaid witnesses, they were thrown in the mid of river where the current of water was very high. It is surprising enough that PW-4 and PW-5 succeeded to Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 26/33 untie the rope of their hands and legs and crossed the river, in which there was high current at the time of alleged occurrence, by swimming. The aforesaid claim of PW-4 and PW-5 does not appear to be probable. It is also surprising enough that while PW-4 and PW-5 were returning to their home, they did not take any step to give information to police regarding the alleged occurrence, particularly, in the circumstance when Shahpur Police Station was on their way.
23. PW-6, Sri Bhagwan Yadav, is not an eye witness of the alleged occurrence and he claimed that PW-3, and Shubh Dayal gave information to him and others about the alleged occurrence. This witness also stated almost similar story as stated by other hearsay witnesses. However, this witness admitted in his cross-examination that an information regarding the alleged occurrence was given to Mukhiya and Sarpanch but they did not write anything. Although, this witness claimed that he did not inform Mukhia and Sarpanch but he had gone to meet Mukhia and Sarpanch. This witness, further, admitted that information in respect of the alleged occurrence was given to Budhram Yadav Chaukidar. He also admitted that Mukhia, Chaukidar and Sarpanch had also taken part in search of victims. This witness, further, admitted that there was police Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 27/33 Chauki at Gaura village. This witness, further, admitted that his statement was recorded by the police after arrival of PW-4 and PW-5. The attention of this witness was drawn towards his previous statement and he denied the suggestion of the defence that he had not made statement before the police, to this effect, that he got information regarding the alleged occurrence from PW-3 and Subh Dayal. The attention of this witness was also drawn towards his previous statement and this witness, further, denied the suggestion of the defence that he had not made statement before the police that appellants forcibly taken away PW-4, PW-5 and victim Prashuram on Dengi. This witness also denied the suggestion of the defence that he had not made statement before the police that on the order of appellant Hari Bind, appellant Shatrughan Bind had tied the hands and legs of PW-4 and PW-5 and victim Prashuram and threw them into the river. He also denied the suggestion of the defence that he had not named Hridya and Birju before the police in his statement recorded under Section 161 of the Cr.P.C.. At this juncture, it is not out of place to mention that at para no. 9 of his cross- examination, PW-10 (Investigating Officer) has stated that PW- 6 had not made statement before him, to this effect, that PW-3 and Shubh Dayal had disclosed before him about the alleged Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 28/33 occurrence and named the persons, who committed the alleged occurrence. Furthermore, PW-10 also admitted that PW-8 had not made statement before him that PW-4 and PW-5 disclosed before him that they were along with victim Prashuram were thrown into river by appellants. It is obvious from perusal of statement of PW-6 that this witness improved his statement in course of investigation and, moreover, the statement of this witness was recorded after 3-4 days of the alleged occurrence.
24. PW-7 Sudarshan Ram is the informant of the present case and this witness is also not the eye witness of the alleged occurrence. This witness has admitted that he had neither seen the occurrence of kidnapping of PW-4, PW-5 as well as victim Prashuram nor throwing them into the river. PW- 7 admitted that he came to know about the alleged occurrence from PW-3 and Shubh Dayal Ram and later on, from PW-4 and PW-5. This witness admitted that when he got information about the alleged occurrence from PW-3 and Shubh Dayal, he as well as others went in search of PW-4 and PW-5 and victim Prashuram, who happens to be the son of this witness but could not succeed to trace them out and returned to their respective homes due to dark night. This witness, further, claimed that in next morning, he along with others again visited several villages Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 29/33 in search of victims but he as well as others could not find out victims and, thereafter, on next day of the alleged occurrence at about 6.30 P.M., he went to Shahpur Police Station and gave written report. This witness, further, admitted that PW-4 and PW-5 returned after three days of the alleged occurrence. However, this witness admitted that after next day of occurrence, his statement was recorded before the Daroga and Dy.S.P.. This witness admitted that due to settlement made in favour of Matasya Committee, appellant Hari Bind and his associates were annoyed but he did not give written information to any one in respect of the above stated annoyance of appellant Hari Bind and others. However, at para 42 of his cross- examination, this witness admitted that he along with PW-4 and PW-5 had gone to Police Station and on the same day, he gave his fard-e-beyan to police and the statement of PW-4 and PW-5 was also recorded by police on the same day. This witness expressed his unableness to say as to whether his statement was recorded before the police on 16.2.1989 or not. The attention of this witness was drawn towards his previous statement at para 45 of his cross-examination and this witness denied that he had not made statement before the police, to this effect, that after three days of the alleged occurrence PW-4 and PW-5 disclosed Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 30/33 about the second phase of occurrence before him. This witness also denied the suggestion of defence that he had not made statement before the police that P.W.4 and Shubh Dayal had disclosed before him about first phase of occurrence and they had not taken the name of appellant Shatrughan Bind. PW-10 at para 8 of his cross-examination admitted that PW-7, Sudarshan Bind had not disclosed before him that PW-4 and PW -5 disclosed about the manner of occurrence before him. The combined perusal of depositions of PW-7 and PW-10 goes to show that PW-7 improved and embellished his statement in course of trial on various material points and aforesaid improvement and embellishment creates doubt about the claim of PW-7. Moreover, admittedly, PW-7 is not an eye witness of the alleged occurrence and his entire statement is based upon disclosure made by PW-3, PW-4 and PW-5 and as I have already doubted the claims of PW-3, PW-4 and PW-5 on various grounds, therefore, it would be very difficult to place reliance upon testimony of PW-7.
25. One striking features of the case is also noticeable. It is admitted case of the prosecution that alleged occurrence took place on 24.8.1988 between 4.00 P.M. to 6.00 P.M. and PW-7 gave written report to Officer-in-Charge of Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 31/33 Shahpur Police Station in the evening of next day of the alleged occurrence, i.e., on 25.8.1988. However, it is surprising enough that the fard-e-beyan and formal first information report were put up before learned Chief Judicial Magistrate on 30.8.1988, i.e., after five days of institution of first information report, particularly, in the circumstance, when the formal first information report was dispatched from Police Station on 26.8.1988. The prosecution has not given any explanation as to why the fard-e-beyan was put up before Chief Judicial Magistrate after five days of institution of the case. As I have already discussed that the PW-4 and PW-5 claimed that they returned after three days of the alleged occurrence and, thereafter, they went to Shahpur Police Station along with PW- 7 and others and their statement was recorded at Shahpur Police Station. PW-4 also admitted that when he along with PW-7 and PW-5 went to Shahpur Police Station, his statement was recorded and he signed his statement but the aforesaid signed statement of PW-4 has not been brought on record by the prosecution. PW-7 also admitted that when he along with PW-4 and PW-5 went to Shahpur Police Station his statement was recorded. The above stated delay of placing the F.I.R. and other relevant documents before the court creates a serious doubt Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 32/33 about the claim of prosecution that the fard-e-beyan of PW-7 was recorded on the next day of alleged occurrence and the fard-e-beyan of PW-7 appears to be antedated.
26. Furthermore, I find that almost all the material prosecution witnesses are related with each others and they were interested in the out come of the present case because according to the prosecution case itself, there was enmity between the parties on account of taking of statement and, subsequently, cancellation of settlement of Bhagar. PW-1 as well as some other witnesses admitted that the settlement taken by Committee had already been cancelled on the petition of appellant Hari Bind and, therefore, there was no occasion to appellant Hari Bind as well as his associates to Committee the alleged occurrence.
27. After marshaling the evidence available on record, I am of the considered view, that prosecution could not succeed to prove its case beyond all shadow of reasonable doubts and appellants are entitled to get the benefit of doubt.
28. In view of the aforesaid discussions, Cr.
Appeal (DB) No.419 of 1994 and Cr. Appeal (DB) No. 436 of 1994 are allowed and, accordingly, the impugned Judgment of conviction and sentence order are, hereby, set aside. The Patna High Court CR. APP (DB) No.419 of 1994 dt.16-05-2019 33/33 appellants are acquitted of the charges giving benefit of doubts. The appellants of both the above stated criminal appeals are on bail and, therefore, they are discharged from the liabilities of their respective bail bonds.
(Hemant Kumar Srivastava, J) Rajendra Kumar Mishra, J: I agree ( Rajendra Kumar Mishra, J) Spd/-
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