Patna High Court
Bimlesh Kumar Singh @ Bimlesh Singh & Anr vs State Of Bihar on 12 August, 2013
Author: Akhilesh Chandra
Bench: Akhilesh Chandra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.13 of 1999
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1. Bimlesh Kumar Singh @ Bimlesh Singh, son of Sitaram Singh.
2. Sitaram Singh, Son of Late Ranjit Singh, Both residents of Village- Chak
Bairia, P.S. Gaurichak, District- Patna.
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
with
Criminal Appeal (SJ) No. 26 of 1999
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Jay Prakash @ Jay Prakash Singh, son of Sita Ram Singh, resident of Village- Chak
Bairia, P.S. Gaurichak, District- Patna.
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
===========================================================
Appearance :
For the Appellant/s (In both Appeals) : Mr. Kanhaiya Pd. Singh, Sr. Advocate. &
Mr. Dr. Rajesh Kumar Singh, Advocate.
For the Respondent/s (In both Appeals) : Mr. S.N. Prasad, A.P.P.
===========================================================
CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA
ORAL JUDGMENT
Date: 12-08-2013
The appellants have preferred these appeals against their
conviction for the offence under sections 364 A, 120 B and 386/34 of the I.P.C.
but sentenced to undergo eight years R.I. for the offence under section 386/34 of
I.P.C. and fine of Rs. 2000/-, in default further R.I. for one year. No sentence was
awarded for offence under sections 364 A and 120 B of the I.P.C in the light of
the decision of the Apex Court as reported in 1991 Cr.L.J. 1315.
2. Let us see first what the prosecution case is. P.W.3 Braj
Kishore Singh submitted his application said to be (vide para 5) in the pen of P.W
5 Arun Kumar Singh to the police station on 8 th October, 1992 giving rise to
institution of Gauri Chak P.S.Case No. 326 of 1992 under section 364 I.P.C. with
Patna High Court CR. APP (SJ) No.13 of 1999 dt.12-08-2013 2
the assertion that on 27.9.1992 his son Hari Darshan Kumar who was at the house
under construction left the place in the evening about 5 P.M. with appellant Jai
Prakash and proceeded towards Baria which was seen by his daughter Sudha
Kumari P.W 1 who at that time had gone there to lighten Deepak. The two were
followed hurriedly by some unknown persons, she informed her mother P.W 2
Shushila Devi. Further son of the Informant had given a shirt for stitching to
Matro Tailor (Agam Kuaon) on 27.9.1992 in presence of his two friends Chandra
Mohan and Rinku (both not examined) as intimated by him to his mother and
with the receipt and Rs.5/- he was there at the site but left and missing and when
her son did not returned in the night she directed one Santosh Kumar, P.W 6 to
enquire from one Surendra Prasad Singh (Not examined), a relative as his Fufa
but as told he was not there and thereafter enquiry and search was made from the
relatives. Tailor P.W.7 was also directed not to hand over shirt to any one and if
any one comes forward, to inform the Informant and police. On 6th October, 1992
it was known that some one has taken shirt. On enquiry the Informant came to
know that the appellant Jai Prakash by producing receipt given information about
supplier of receipt, i.e. sister of the victim and when the Informant tried to go with
the appellant Jai Prakash, he hurriedly on his motor cycle bearing No. BR-O-9-
S1676 went away and when followed the Informant and others found he was
threatening the tailor master not to disclose his name. On the basis of above the
Informant raised doubt against the appellant who had earlier given threatening to
kill the Informant and his family members. Police instituted the case. During
investigation protest petition was also filed. However, on conclusion charge sheet
was submitted for the offence under sections 364, 386, 120B and 34 of the I.P.C.
and cognizance was also taken but after commitment of the case charge for the
offence under sections 364 A, 120B and 386/34 of the I.P.C. was framed.
Patna High Court CR. APP (SJ) No.13 of 1999 dt.12-08-2013 3
Accordingly, trial commenced wherein on behalf of the prosecution altogether 12
witnesses were produced besides a good number of documentary evidence such
as:-
Ext.1- Written Report (Two sheets).
Ext. 1/1- Written on written report.
Ext. ½- Do.
Ext.2- Protest petition.
Ext.3- Power signed by P.W.3 and Sri Baleshwar Singh
Advocate for the informant.
Ext.4- Affidavit of Sarjug Singh.
Ext.5- Affidavit of Kanchan Singh
Ext.6- Petition file in the Court of Sri Radhey Shayam Singh,
J.M. Patna.
Ext.7- Power dated 21.1.93.
Ext.8- Formal F.I.R.
Ext.9- Statement U/s 164 Cr.P.C. of Brij Kishore Singh.
Ext. 10- Statement U/S 164 Cr.P.C. of Sudha Kumari.
Ext. 11.- Statement U/S 164 Cr.P.C. of Sushila Devi.
Ext. 12. Statement of Complainant Brij Kishore Singh U/S 200
Cr.P.S in Complaint 149 © 95.
Ext. 13- Examination of Saryug Pd. Singh U/S 202 Cr.P.C. in
Complaint 149 © 95.
Ext. 14- Examination of Kanchan Singh U/S 202 Cr.P.C. in
Comp. 149 © 95.
Ext. 15- Examination of Sudha Kumari U/S 202 Cr.P.C. in
Comp. 149 © 95.
Ext. 16- Examination of Sushila Devi U/S 202 Cr.P.C. in Comp.
149 © 95.
Ext. 17- Photo copy of Inland letter.
Ext. 18- Application before D.I.G.
Ext. 18/a - Application before D.G.R.
Ext. 19- Acknowledgement receipt.
Ext. 19/a- Do.
Ext. 19/b - Do.
Ext. 19/C - Do.
Ext. 20- Complaint petition No. 149 ( C ) 95.
Ext. 21- Power
Ext. 22- Order sheet dated 10.1.92.
Ext. 23- Handwriting of Jay Prakash in a copy of page No. 15,
16, 19, 22, 23, 24, 25, 26.
Ext. 24- Handwriting expert report.
Ext. 24/1- Forwarding letter typed by Tej Nandan Pd.
Ext. 25- Entire Order sheet of Comp. Case No. 149 © 95.
3..There is no oral or documentary evidence on behalf of the
defence and the trial court after examining the materials convicted and sentenced
Patna High Court CR. APP (SJ) No.13 of 1999 dt.12-08-2013 4
the appellants in the manner afore stated.
4. While assailing the finding at the very out set it was pointed
out that the alleged offence is of the year 1992, whereas, Section 364 A of the
I.P.C. was introduced in the Penal Code vide Act 42 of 1993. Conviction under
section 364 A of the I.P.C. in the instant case would not have been made and the
court below taking into consideration did not pass any order of sentence for such
an offence. But at the same time there is no material to establish any crime
committed by the appellants. Only interested witnesses have been examined in
this case instituted at belated stage without any explanation, just to falsely
implicate them. Oral and documentary evidence produced is also fainted and
manufactured, even though the witnesses examined were never produced before
police during investigation.
5. On the other hand, learned Additional P.P. has contended that
the conviction may be treated as conviction for the offence under section 364
I.P.C. and accordingly adequate sentence not higher than already awarded may be
passed. He further placed reliance upon a decision of this Court in the case of
"State of Bihar Vs. Chandan Kumar" reported in 2011 (1) P.L.J.R. 48 and
further contended that the eye witnesses examined coupled with the tailor master
P.Ws. 7 and 8 completed chain of circumstances and now it is for the appellants
to show what they did with the victim. But they fail; consequently deserve
adequate punishment as per law.
6. The prosecution's version about initial part of the occurrence
is that on 27th September, 1992 the victim on call left the place with appellant Jai
Prakash on a bike followed by remaining appellants at about 5 P.M. Apart from
others to substantiate this point out of 12 witnesses examined there are only five
i.e. P.WS. 1, 2, 4, 9 and 10.
Patna High Court CR. APP (SJ) No.13 of 1999 dt.12-08-2013 5
7. P.W. 1 Sudha Kumari aged about 14 years on the date of
examination is sister of the victim and according to her in the evening at about 5
P.M. as per daily routine she had gone to lighten Deepak in new house found her
neighbor Kanhaiya P.W.4 and Munna (not examined) grazing she-buffalo and
further found her brother was called on by appellant Jai Prakash and proceeded
towards Bairya followed by two to three other unknown. Her brother (victim) had
some paper also with him and when he did not return her mother started his
search and during that course also contacted his Fufa Surendra Babu resident of
Kumhrar and father, Informant was not available came only on 4 th October, 1992.
She intimated everything to him. He also started searching. On 17.10.1992
received one inland letter in the pen of appellant Jai Prakash demanding Rs.
3,33000/- in lieu of victim otherwise he would be cutting into pieces of similar
number. That letter was also produced before the police and her statement was
also recorded before the Magistrate and the victim never returned. During cross-
examination this witness admits that she is student of Class-Xth. His search
companion was initiated from the following day and one Santosh P.W 6 was also
entrusted to contact Surendra Babu, resident of Kumhrar but the victim had not
visited the place. In para-8 she further states that new house was under
construction and erected up to linter level, plaster was not done, Deepak was
made by earth and it was being kept there itself. She was not carrying from and to
old house. In para-9 she said that new house is in the village itself and in para-10
she said that she neither enquire from her brother where he was going or by which
time he will come back and his going out with appellant Jai Prakash was regular
feature, though it was for the first time she could personally see both going
together. Her brother also did not suo-motu said anything.
8. P.W. 2 Shushila Devi mother of the victim while supporting
Patna High Court CR. APP (SJ) No.13 of 1999 dt.12-08-2013 6
prosecution version has also stated that on 25.9.92 the victim had given cloth for
stitching shirt to Matro Tailor, due date of the same was 27.9.92 as intimated by
the victim and on the relevant date in addition to the prosecution case she also
claims to see the victim going with appellant Jai Prakash while she was going in
neighborhood. After being intimated by P.W.1 and finding the victim not
returning to house she started search and also entrusted Santosh Kumar, P.W.6 to
intimate uncle (Fufa) of the victim and some time thereafter she got information
that her son has not visited the place of his Fufa. She has further stated about
receipt of inland letter demanding ransom etc. In Cross-examination in para-7 she
says that her son had taken Rs.5/- for going to Matro Tailor. In para-8 she states
about sending P.W.6 on 28th September, 1992. She further stating before Police
that on the fateful day the victim had informed her about his intention to go to his
uncle (Fufa) place, whereas, P.W. 6 Santosh Kumar has said about instruction
being received by P.W.2 and he visited the place, but in cross-examination states
that not on the same day or the following day rather on 29 th September, 92 he had
visited the place for the first time. Simultaneously the said uncle Surendra Babu
has not been examined by the prosecution for the reasons best known to him.
9. P.W. 4 Kanhaiya Kumar Singh has come to say that at the
relevant time he along with Munna (not examined) who is his cousin (Fufera
Bhai) is getting the she-buffalo grazing could see the victim have some talk with
appellant Jai Prakash, at that time P.W.1 had come to lighten Deepak. In cross-
examination he expressed his inability to state after the relevant date and time
when he contacted wife of the Informant, i.e. mother of the victim but also said
though police had visited the village but he could not see. However, subsequently
on 18.10. 1992 he is said to have made statement to the police and stated about
presence of P.W.1 there at the relevant time for the purpose.
Patna High Court CR. APP (SJ) No.13 of 1999 dt.12-08-2013 7
10. P.W.9 Saryug Singh, elder brother of the Informant came to
say about kidnapping of the victim by the appellants on the relevant day and time
and further says that at the particular time and place as usual he was at Sandhya
Pujan in Devi Asthan at Agam Kuaon situated 4 kilometer away from his village
after completing his daily routine while he was coming back found the appellant
Jai Prakash on a motor cycle bearing No. BR- 09- S1676 as pillion rider, victim
was there and both were going towards west. Some time thereafter he could see
appellant Sitaram as pillion rider in another motor cycle which was being driven
by one unknown following the bike of Jai Prakash and he further claims to state
all such things to the Informant who repeatedly requested the appellant to return
the victim, but on failure got the case instituted on 8th October, 1992. He further
said about his statement being recorded by the Investigating Officer in a private
diary, who also seized receipt of Matro Tailor on the basis whereof appellant Jai
Prakash had taken the shirt of the victim. He further states about inland letter
carrying postal seal of Danapur cantonment demanding Rs.3,33000/- otherwise
the victim was to be cut in similar number of pieces. Xerox copy of inland letter
was taken and after comparing with original it was handed over to the
Investigating Officer who did not issue any receipt and thereafter statement of
witness was also prepared to be filed on oath besides statements of other
witnesses and he proved Exts. 4, 5, 6 and 7. He also stated about making
statement before Magistrate. In cross-examination he admits the Informant getting
new house constructed after partition with co-sharer i.e. the appellants also.
Further there is no supporting witness about his regular routine to visit Devi
Mandir at Agam Kuaon and also unable to state even the name of Priest there. In
para-13 he says that on 25th September, 1992 he could come to know that the
victim is not at the house but he could not know about his kidnapping on the same
Patna High Court CR. APP (SJ) No.13 of 1999 dt.12-08-2013 8
day rather he has seen his kidnapping on 27th September, 1992, but he never
raised any alarm inspite of having police station and out post available at a very
short distance. Further he says that his statement was recorded in private diary of
the Investigating Officer, but it was not in the official case diary as he could come
to know from the Informant that written petition with affidavit etc. was filed. In
para-18 he says that he had gone to Agam Kuaon Temple by Bus and same day he
gone out from the village and returned only on 9th October, 1992, but this fact is
not mentioned in Ext. 6, likewise seizure etc. of the receipt of Matro Tailor.
11. P.W. 10 Kanchan Singh came to say at about 6 P.M. on
27.9.1992he was at his village at a distance of five to six yards from road. He found his nephew (son of cousin) appellant Jai Prakash coming from village on his bike carrying his own brother Bimlesh Kumar, appellant no.1 in Cr. Appeal No. 13 of 1999 and in between victim was thereon. This story appears stated for the first time. He further says, said bike was followed by another one which was driven by unknown, whereas appellant no.2 Sita Ram Singh was pillion rider and in the next morning he went to his Sasural from where only came back on 9 th October, 1992 and would come to know that it was actually the case of kidnapping and he intimated everything to the Informant. Further he says about inland letter demanding ransom, Xerox copy etc. with statement of affidavit filed on his behalf (Ext.5). In cross-examination in para-15 he claims himself as an eye witness of the occurrence of kidnapping, but since it was not believable he raised no alarm, but only on 9th he came to know about such sort of wrong being committed. Further even before leaving village on 28.9.1992 he did not intimate any one about such incident. This also appears difficult to accept especially when the victim did not return home in night. As per prosecution case search operation had already been initiated at the instance of victim's mother, P.W.2.
Patna High Court CR. APP (SJ) No.13 of 1999 dt.12-08-2013 9
12. Out of five witnesses on the point of victim leaving village in the company of appellants, there appears much contradictions. First three witnesses P.WS. 1, 2, 4 and 9 have said about the victim proceeding with appellant Jai Prakash, whereas, P.W. 10 introduced appellant Bimlesh Kumar also on the same bike. Further P.WS. 9 and 10 inspite of claiming an eye witnesses to the occurrence raised no objection or alarm and even did not intimate the prosecution side about what they have seen inspite of search being on, i.e. contrary to natural conduct of any relative or prudent known person which they claim to be.
13. Next chain of circumstances as claimed by the prosecution is taking of shirt of the victim from the tailor during period of abduction by appellant Jai Prakash. And the informant P.W. 3 Braj Kishore Singh while narrating the prosecution case including giving shirt for stitching as regard to which P.W. 5 Arun Kumar the Scribe on written report on behalf of P.W.3 has come to say that inadvertently date of such handing over has been written 27th September 1992, whereas it was 25th September, 1992, though in cross examination he expressed his inability etc. about any prayer for rectification etc. being made by the prosecution or not. This P.W. 3 states that apart from receipt of Matro Tailor Rs. 5/- was also with his son and on getting information about his son missing he had already requested Matro Tailor not to handover shirt to any one, rather if one claims either he or other let it be informed, but he got information on 06.10.92 prior to institution of the case that some one has taken shirt from the tailor. He immediately enquired about and was informed that it was appellant Jai Prakash who was taken delivery in the garb of instruction given by sister of the victim who produced receipt and when the appellant was being interrogated by the Informant he ignored and left the place on bike. He further Patna High Court CR. APP (SJ) No.13 of 1999 dt.12-08-2013 10 states about inland letter received, Ext. 'X' demanding ransom and proved Ext. 1. He is nothing but hear say witness, but on subsequent examination-in-chief on recall he says that inland letter received on 16.10.92 which was compared with its Xerox copy and original was handed over to the Investigating Officer and proved Xerox copy Ext.7 (marked with objection) and he further states that it was in the writing of appellant Jai Prakash. Further he proved Exts. 18 A, 19 to 19 C, 20, 21, 22 and 23 wherein Exts. 15, 16, 19, 22 to 26 are said to be writings of the appellant Jai Prakash on the note book which he sent for examination to P.W.12 Keshav Prasad, handwriting expert and in cross-examination he admits all such things and said that since it is not in his knowledge earlier he did not disclose to the police. This witness has also not taken care of to get in admitted writing and signature of the appellant Jai Prakash obtained from any source including court's record and get the same scientifically compared with.
14. P. W.7 Abdul Rashid is owner of Matro Tailor comes to say that one resident of Chakbairiya village takes his services, but he was not aware of the victim. He could know subsequently that shirt given by victim for stitching to the shop wherein his son P.W. 8 also works and it is also learnt that on 25.9.92 the victim had given shirt for stitching, a receipt was also given to him. The appellant Jai Prakash came with such receipt on 5.10.92. He handed over shirt after being satisfied on enquiry that the receipt was given to him by sister of the victim. He further says, after investigation said receipt was taken by the Investigating Officer but without any receipt for that. During cross-examination he says his son is in fact over all incharge of the shop and further denies any relationship especially of landlord and tenant with Surendra Babu, uncle (Fufa of the victim). In para-13 he states about enquiry by the informant but not sure about date of such enquiry and he is completely silent about any request being made by Patna High Court CR. APP (SJ) No.13 of 1999 dt.12-08-2013 11 the Informant not to deliver stitching shirt to any one and if one comes, either informant or police be intimated. If such intimation or request was not made to him there appears no reason for him to verify about handing over receipt to the person taking delivery.
15. Simultaneously, P.W.8 Md. Javed son of P.W. 7 is also silent about such intimation or request, though likewise his father has said that delivery was given to the appellant Jai Prakash on the information that receipt was given to him by sister of the victim who was not earlier known to this witness also. Thus, on the point of giving and taking the shirt during the period of abduction there appears no substantive evidence and whatever is adduced by the prosecution are in conflict with each other.
16. Next chain of circumstances as claimed by the prosecution is that the said inland letter received by them demanding ransom as per their case itself in the writing of the appellant Jai Prakash, original of the same is not produced with explanation of handing it over to the Investigating Officer, but keeping the Xerox copy, the informant requested P.W.12 for comparison of writing with one note book said to contain writings of appellant Jai Prakash as well, Xerox copy of his signature on court's record. Everything was done privately without either intimating to the investigating agency or with the permission of the court at any stage.
17. P.W. 12 Keshav Prasad, former Director and Chief document examiner of Police Laboratory, C.I.D. Bihar Patna claims comparing all such writings and signatures and finding the same in the pen and signature of appellant without taking care of purpose of such comparison and comparing with original or photograph of such writing and signature rather contrary to the principles of comparison of signature or handwriting either from original or enlarged Patna High Court CR. APP (SJ) No.13 of 1999 dt.12-08-2013 12 photograph at a known scale. He did so with Xerox copy. Obviously, requirements for arriving at a definite conclusion cannot be fulfilled and in his lengthy examination-in-chief as well cross examination he has failed to reply all such questions. Even he has not taken care of to ascertain whether the document said to have been produced before him containing signatures and writings were really admitted one or not and he has also not compared and verified his opinion after examination of signature of appellant Jai Prakash on court's record with the original signature. Thus, his report has no purpose.
18. Now last witness P.W. 11 the Investigating Officer, upon whom prosecution has no confidence, has come to say that he remained incharge of Gopalpur O.P. till December, 92 and on 8.10.92 the informant appears with written application at 9.30 P.M. where on case was instituted. He accepted endorsement on Ext. 1 and marked as Exts. 1/1 and ½. He himself took investigation, recorded further statement of the Informant, inspected the P.O. and on very next day conducted raid in the house of the appellants, one of whom Bimlesh Singh was not found but remaining two were apprehended. In investigation further raid was conducted in the house of one Shailendra Singh, but victim could not be traced. He proved Ext. 8 and further said about visiting Matro Tailor where seized receipt for tailoring of shirt indicating charge of Rs.30/-. Due date of delivery was 2 nd October, 92, whereupon appellant Jai Prakash has taken delivery, but such receipt inspite of his statement of seizure is not on record. But in para-10 he denied such seizure of receipt shown by Matro Tailor, but was unable to explain reasons behind, consequently declared hostile by the prosecution and denied suggestion that he deliberately did not seize and prepared seizure list just in collusion with the accused persons. He further says that Kanchan Singh and Sasryug Singh, P.WS 10 and 9 did not turn up before him so Patna High Court CR. APP (SJ) No.13 of 1999 dt.12-08-2013 13 their statement could not be recorded. He further denied receiving of any inland letter from the Informant and prosecution also during lengthy cross-examination raised doubt against his investigation and in cross-examination by the appellant he denied to know that appellant Sita Ram having some tumor on his forehead by which the tailor must have to identify Jai Prakash as son of the appellant Sitaram having tumor on his forehead. Further he denied making any statement by the witnesses so examined, especially such portions where on defence drew their respective attentions with the assertion whether they have stated such things before police or not.
19. And finally to sum up, it appears from the discussions made above, chains of circumstances are not clear and complete. The witnesses examined on behalf of the prosecution on the point of disappearance of the victim and the manners are not inconsonance with each other, rather their conduct is contrary to natural action. If at all the victim was taken by the appellants or appellant Jai Prakash in a most natural way since as said by his sister it was regular feature, none of the witnesses are coming to say about any enquiry being made from appellant Jai Prakash or remaining two and when in an unusual way he did not return in night a search was made, even relative was also contacted, but for ten odd dates police was not informed waiting for a day or two anticipating return of the victim may be accepted, but such long delay on the ground of private search appears not convincing and even close relative being claiming themselves to be an eye witness of the victim being taken away have no taking any care to intimate his mother who had been searching her son like anything and even the informant coming to home on 4th October, 1992 without any reasonable explanation to four more days in lodging the case. Such huge delay is also required to be explained especially when it is the prosecution case that the Patna High Court CR. APP (SJ) No.13 of 1999 dt.12-08-2013 14 appellant had earlier threatened to do away life of the informant or his family members. In absence whereof suspicion against the prosecution version further darkens which could be diluted or removed by production of Xerox copy of inland letter containing demand of ransom etc., that too could not be scientifically proved and established in the pen and writing of appellant Jai Prakash and appellant Sitaram inspite of all odds immediately after institution of case could be apprehended from their own house in the village itself and during investigation nothing could be traced indicating their involvement in disappearance of the victim by the Investigating Officer. Since it is not established that appellant have any role to play in disappearance/ kidnapping/ abduction of the victim, shifting onus upon the accused to satisfy as to how the victim was dealt with by those who abducted him cannot be dealt as submitted by the learned Additional P.P. placing reliance in the case of State of Bihar Vs. Chandan Kumar (Supra).
20. Thus, on over all consideration of facts and circumstances, it cannot be said that the prosecution has been able to establish their case beyond any reasonable doubt. Consequently, the appellants deserve benefit.
21. In the result, both the appeals are allowed and the conviction and sentence of the appellants is set aside and they are set free from the liabilities of their bail bonds furnished on their behalf.
(Akhilesh Chandra, J) Abhay/-