Patna High Court
Raj Bali Singh vs The State Of Bihar on 25 July, 2014
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, Jitendra Mohan Sharma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.345 of 1991
Against the judgment and order dated 05.08.1991 passed by Sri Mithilesh Kumar
Singh, 5thAdditional District and Sessions Judge, Bhojpur at Arrah in Sessions Trial
No.251 of 1989.
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Raj Bali Singh, son of Ram Bacha Singh, resident of village-Dhawari, P.S.-Sahar,
District-Bhojpur. .... .... Appellant.
Versus
The State of Bihar. .... .... Respondent.
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Appearance :
For the Appellant : None
For the Respondent : Mr. Ajay Mishra, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH
And
HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)
Date: 25-07-2014
The present appeal is directed against the order of
conviction and sentence dated 05thof August, 1991, passed by the 5th
Additional Sessions Judge, Bhojpur at Arrah in Sessions Trial No.251 of
1989, convicting the sole-appellant for an offence punishable under Section-
364 of the Indian Penal Code and sentencing him to rigorous imprisonment
for life.
2. This is an old appeal of the year 1991 and has been
on the list for some days with no representation from the side of the
appellant. Finally, when the appeal was called up and no one appeared for
the appellant, we perused the records with the help of learned Additional
Patna High Court CR. APP (DB) No.345 of 1991 dt.25-07-2014
-2-
Public Prosecutor. Having perused the records, we were indeed surprised as
to how conviction was at all recorded. We, therefore, decide not to appoint
amicus curiae to assist us in the matter as the learned Additional Public
Prosecutor very fairly placed before us the depositions and the judgment
under appeal.
3. The charge against the appellant was that on
12.01.1988, he had kidnapped the minor son of the informant, P.W.3-Dr. Upendra Prasad Himanshu with intent to kill. It may be noted that originally the case was registered under Section-363 IPC but later after almost a year when the appellant was arrested and the boy was not recovered, it was converted into a case punishable under Section-364 IPC. While perusing the judgment, the entire case and the conclusion drawn by the Trial Court is available in paragraph-12 of the judgment, which is quoted hereunder:-
"12. In this case there is no direct evidence against the accused that he had kidnapped the victim boy but there is circumstantial evidence of P.W.3 informant which clearly shows that guilt of the accused. From the evidence of P.W.3 it appears that accused was employed with him on daily basis. He was removed for which he was deeply aggrieved and had threatened him with dire consequences. The accused used to visit the house of the informant. The accused had, once in the year 1983, had kidnapped the said boy who was recovered by two junior Drs. of informant from the house of the accused.
Before the occurrence about 10 days Patna High Court CR. APP (DB) No.345 of 1991 dt.25-07-2014 -3- before the accused had also put his belongings in the house of the informant.
The accused was trying for service of his wife and himself before the informant and Civil Surgeon. These are the circumstances against the accused persons which shows that he might have committed the alleged crime. The most vital evidence is Ext.2 a letter written by the accused which shows that he was quite angry aggrieved and revengeful against the informant. This is another strong circumstance against the accused.
The other circumstance against him is that he was seen with the boy by P.W.2 and P.W.4. It is admitted fact that the boy is traceless at yet. All these circumstances go against the accused and give me irresistible conclusion to consider that the accused had committed the alleged offence."
4. Suffice to say, we could have ordinarily disposed of the appeal by merely observing that for the facts noted and reasons given in paragraph-12 of the judgment, as quoted above, there could not have been any conviction. This is so because what the Trial Court forgot was that it was trying a criminal case and it is well settled principle of criminal jurisprudence that however strong the suspicion may be, it cannot take the place of proof and in absence of proof, the prosecution cannot be said to have proved the guilt beyond reasonable doubt. This is the elementary difference between appreciation of evidence in a criminal case and a civil case. In a criminal case, the accused has to be found guilty beyond reasonable doubt, whereas in Patna High Court CR. APP (DB) No.345 of 1991 dt.25-07-2014 -4- a civil case the case is to be decided upon preponderance of evidence. As noted above by the Trial Court itself, there was only grave suspicion. Regrettably, suspicion can never be ground for conviction in absence of proof of the crime having been committed. However, we would not like to fall in the same error as committed by the Trial Court, we would appraise the evidence afresh, which would also show the miscarriage of justice in the present case.
5. On 12.01.1988 a „Sanha‟ was lodged by the informant, P.W.3-Dr. Upendra Prasad Himanshu with the Arrah Town Police Station alleging that his minor son, Shailesh Kumar Singh has been missing without information. Later on 14.01.1988 at about 8:30 pm, formal information is lodged with the Arrah Town Police Station about his son missing apprehending that he had been kidnapped. There was no suspicion as against any particular person much less the appellant. On the basis of the aforesaid, the first information report was lodged and registered under Section-363 IPC and police took up investigation. The investigation was first entrusted to P.W.5-Harish Chandra Singh who had come and deposed in Court that he was incharge of investigation but till his transfer there was no material that could be gathered against the appellant. But, pursuant to supervision of the Deputy Superintendent of Police, he was persuaded to file an application before the Chief Judicial Magistrate, Arrah for issuance of warrant of arrest of the appellant but did not pursue the same. The investigation was then entrusted to P.W.6-Baleshwar Singh who has deposed in the Court that even while he was investigating the case he could not get any tangible material to implicate the appellant. He could not gather any material against the appellant and, as such, he did not pursue the application Patna High Court CR. APP (DB) No.345 of 1991 dt.25-07-2014 -5- for arrest of the appellant. Upon his transfer, the investigation was then entrusted to P.W.7-Raj Wansh Singh, the Investigating Officer and he took over the investigation on 28.04.1988. On 15.06.1988 he took warrants for the arrest of the appellant. On 13.07.1988 he went to the „Sasural‟ of the appellant where he could not find the appellant or any incriminating evidence. On 17.12.1988 the appellant was arrested and produced before him. He does not know where the appellant was arrested, by whom he was arrested and who produced the appellant before him. This is indeed strange. This is later duly explained by the defence by Ext. B. On 17.12.1988 the appellant was in the Arrah District Court in relation to this case. He had been granted provisional bail on 01.12.1988 by the C.J.M., Arrah in this case and next date fixed was 17.12.1988. In the Court, when he was making necessary pairvi, he found police personnel along with P.W.2-Kanhaiya Singhand P.W.4-Shiv Narayan Singh and feeling threat, he tried to enter the Chambers of Chief Judicial Magistrate to save himself. He was, accordingly, arrested by the police personnel present there and another case was instituted against him being Arrah P.S. Case No.376/88 dated 17.12.1988 under Sections-448/353/341 and 323 IPC. Having been arrested, he was then handed over as if he was arrested in this case though he was on the provisional bail till then. The Investigating Officer, P.W.7-Raj Wansh Singh then admits that on the same day he filed the petition before the C.J.M. in this case to convert this case to a case under Section-364 IPC and on the same day, i.e., 17.12.1988 he took the statement of P.W.2-Dr. Kanhaiya Singh and P.W.4-Shiv Narayan Singh stating that they had seen the appellant with the minor son of Dr. Upendra Prasad Himanshu (P.W.3) on or about 13.01.1988. It is on the basis of this evidence that the Court proceeded. Patna High Court CR. APP (DB) No.345 of 1991 dt.25-07-2014 -6-
6. One thing is clear from the evidences, as noted above, that it is almost after a year that these two persons, i.e., P.W.2-Dr. Kanhaiya Singhand P.W.4-Shiv Narayan Singh gave the statement having seen the appellant with the missing boy to the police after the appellant was arrested. Now, we come to the evidence of P.W.2-Kanaiya Singh. He feigns ignorance of any relationship between the appellant and himself, but, later in cross- examination, he admits that the appellant is „Damad‟ of the village. He admits knowing the appellant from long before. In further cross-examination, he admits that he knows the informant, Dr. Upendra Prasad Himanshu (P.W.3). He admits that on 15.03.1988 he had been introduced to the informant Dr. Upendra Prasad Himanshu (P.W.3) whom he had met in the Court compound and he had also received some treatment at his hands for which he had prescription. In paragraph-23 of his cross-examination, he admits the relationship with the appellant and states that he had never complained to panchayat or the police that he had seen the appellant with the boy. He also admits that the wife of the appellant had sold certain lands to another person and denies the suggestion that because of this, there was enmity between him and the appellant. P.W.4-Shiv Narayan Singh does not dispute that he is co-villager and friend of P.W.2-Kanhaiya Singh. He admits that he knows the informant-Dr. Upendra Prasad Himanshu (P.W.3) for over six months before the arrest of the appellant. He gave statement to the police. Let it be recalled that the statement for the first time given to the police by this witness was on 17.12.1988 and the boy had been kidnapped on 12.01.1988. The evidence of these two witnesses, i.e., P.W.2-Kanhaiya Singhand P.W.4-Shiv Narayan Singh is that if what they are saying is correct that they had seen the appellant with the boy on 13.01.1988 and they were Patna High Court CR. APP (DB) No.345 of 1991 dt.25-07-2014 -7- acquainted with Dr. Upendra Prasad Himanshu (P.W.3) whom they used to meet in the Court or otherwise, why they did not disclose the fact to Dr. Upendra Prasad Himanshu (P.W.3) at any earlier point of time nor did they disclose the fact to the police. For the first time after a year they make a statement before the police on 17.12.1988 and got the appellant arrested. The enmity of P.W.2-Kanhaiya Singh and the appellant is clear. The appellant‟s wife inherited property from her father being the only surviving child. The nephew, i.e., P.W.2-Kanhaiya Singh, thus, had grievance in father transferring the lands to the daughter instead of other male relations which was only aggravated when the appellant‟s wife sold some of the lands to others.
7. Now, we come to evidence of informant, Dr. Upendra Prasad Himanshu (P.W.3) himself. The informant states that he had employed the appellant on daily wage for sometime in the year 1983. At that time also, allegedly, the appellant had carried the boy to his house from where the boy had been recovered by his two junior doctors. His services were then terminated by Dr. Upendra Prasad Himanshu (P.W.3), as such the appellant had grudge against him. He further deposes that on 29.08.1988 the Civil Surgeon, Arrah gave him a letter purported to be written by the appellant to the Civil Surgeon complaining against Dr. Upendra Prasad Himanshu (P.W.3) that in 1983 when the appellant and his wife were blessed with only one daughter, Dr. Upendra Prasad Himanshu (P.W.3) had persuaded him to get his wife sterilized by family planning, which will entitle him to get a government job. Dr. Upendra Prasad Himanshu (P.W.3) took some money also. He made him to work. He also gave experience certificate to the appellant with regard to six months work experience but did not get Patna High Court CR. APP (DB) No.345 of 1991 dt.25-07-2014 -8- him employment. He was now desperate as he could not get child nor did he get any job. He has sought employment from the Civil Surgeon. This letter was produced in the Court purporting to be written by appellant and marked as Ext.2. The Trial Court has heavily relied on this letter. The question is who has proved this letter. Dr. Upendra Prasad Himanshu (P.W.3) says that it is in handwriting of the appellant. It was never compared nor tested by any expert nor in Court compared with any contemporaneous writing. More over, this letter speaks of no threat to Dr. Upendra Prasad Himanshu (P.W.3), the informant. How this letter can at all point to the fact that the appellant had, in fact, kidnapped P.W.3- Dr. Upendra Prasad Himanshu‟s son. We fail to appreciate.
8. Thus seen, what is the evidence against the appellant? Merely statement of two witnesses, i.e., P.W.2- Kanhaiya Singh and P.W.4- Shiv Narayan Singh, which are thoroughly unreliable and this was all. Beyond this there is nothing. Yet, the Trial Court merely on suspicion convicted the appellant. Merely on this material, the appellant remained in custody for substantial period. This is a gross case of miscarriage of justice.
9. For the reasons stated above, we have no option but to allow this appeal and set aside the conviction and sentence of the appellant. The appellant is relieved of his bail bond.
(Navaniti Prasad Singh, J.)
Trivedi/AFR (Jitendra Mohan Sharma, J.)
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