Patna High Court
Shyam Bihari Singh & Ors vs State Of Bihar on 7 September, 2017
Author: Prakash Chandra Jaiswal
Bench: Prakash Chandra Jaiswal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.503 of 2002
Arising Out of PS.Case No. -145 Year- 1991 Thana -Behea District- BHOJPUR
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1. Shyam Bihari Singh, S/o Sheo Janam Singh
2. Dharam Nath Singh S/o Sri Fateh Bahadur Singh
Both R/o Village-Bharashara P.S. Bihia district-Bhojpur
3. Chhatradhari Mahto S/o Puran Mahto R/o village-Naraki Mor P.S. Vishnugarh
District-Hajaribagh
.... .... Appellant/s
Versus
State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur
Mr. Amit Kumar
Mr. Nilesh Kumar
For the State : Mr. Abhay Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA
JAISWAL
ORAL JUDGMENT
Date: 07-09-2017 Heard learned counsel for the appellants as well as learned APP for the State.
2. This appeal has been preferred against the Judgment and Order of conviction and sentence dated 29.08.2002 passed by the learned Additional Sessions Judge-cum-Presiding Officer, 5th Fast Track Court, Bhojpur, Ara in Sessions Trial No. 32 of 1993 arising out of Behea P.S. Case No. 145 of 1991, whereby the learned lower convicted the appellants for the offence punishable under Section 364 of the Indian Penal Code and sentenced them to undergo R.I. for seven years each and also slapped them with a fine of Rs. 2,000/- and in default of payment of fine to undergo R.I. for six months.
3. The factual matrix of the case is that Behea P.S. Patna High Court CR. APP (SJ) No.503 of 2002 dt.07-09-2017 2/13 Case no. 145 of 1991 was instituted under Section 364 of the Indian Penal Code against the accused persons, namely, Shyam Bihari Singh, Dharam Nath Singh and the driver of the truck (Chhatradhari Mahto) bearing registration no. BPW-8858 on the basis of statement of Paras Nath Singh S/o Shivnandan Singh, R/o P.S. Behea, District- Bhojpur recorded by S.I. P.S. Behea with the allegation, in succinct that, on 10.10.1991 at about 04:30 PM, while he was proceeding to his house from Behea Bazar and arrived near the house of Prayag Kohar, he spotted the truck of Shyam Bihari Singh bearing registration no. BPW-8858 parked facing west and Shyam Bihari Singh, Dharamnath Singh and the driver of the said truck assaulting his son namely, Umesh Kumar Singh. As soon as he arrived there they caught hold his son and dumped him inside the truck and drove away towards Behea Bazar. His co-villager Shivji Singh and several others witnessed of the occurrence. The informant has claimed that the accused persons have kidnapped his son with intention to do away with his life. The bone of contention is said to be that the accused persons are suspecting the hand of his son (Umesh Kumar Singh) in eloping of the sister of accused Shyam Bihari Singh five days preceding to the occurrence.
4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against the accused persons, namely, Shyam Bihari Singh, Dharam Patna High Court CR. APP (SJ) No.503 of 2002 dt.07-09-2017 3/13 Nath Singh and Chhatradhari Mahto under Sections 364 of the Indian Penal Code.
5. On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the accused persons and committed the case to the court of sessions and on transfer finally the case came in seisin of the Additional Sessions Judge-cum-Presiding Officer, 5th Fast Track Court, Bhojpur, Ara for trial.
6. Charge against all the aforesaid accused persons was framed under Sections 364 of the Indian Penal Code. Charge was read over and explained to them to which they pleaded not guilty and claimed to be tried.
7. To substantiate its case, in ocular evidence, the prosecution has been able to examine altogether four prosecution witnesses namely, victim Umesh Kumar Singh as PW-1, informant Paras Nath Singh as PW-2, Dr. Kesho Prasad Singh as PW-3 and I.O Indrasan Choudhary as PW-4. In documentary evidence, the prosecution has filed and proved certain documents.
8. The statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. In buttress of their case, they have neither adduced any ocular nor documentary evidence.
Patna High Court CR. APP (SJ) No.503 of 2002 dt.07-09-2017 4/13
9. After hearing the parties and perusing the record, the learned trial court passed the impugned Judgment and Order of conviction and sentence as detailed in the earlier paragraph.
10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convicts have preferred the present Criminal Appeal.
11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellants beyond all reasonable doubts or not.
12. It is submitted by the learned counsel for the appellants that only two material witnesses have been examined by the prosecution who happen to be the victim and the informant of the case and they are highly interested and partition witnesses. Their testimonies are full of contradictions, hence their evidence is not worth reliable and trustworthy and cannot be based for conviction of the appellants. It is further submitted that as per the statement of the informant his co-villager Shivjee Singh and several others witnessed the occurrence, but none of the independent witness has been examined by the prosecution rather withheld without assigning any plausible reason creating serious doubt about the prosecution case. It is further submitted that Magistrate recording the statement of the victim under Section 164 of the Cr.P.C. has not been examined by the prosecution. Hence, for want of examination of the Magistrate, Patna High Court CR. APP (SJ) No.503 of 2002 dt.07-09-2017 5/13 statement under Section 164 of the Cr.P.C. is not admissible in the evidence. It is further submitted that as per the prosecution case, the accused persons were suspecting hand of the victim (Umesh Kumar Singh) in eloping of the sister of the accused Shyam Bihari Singh preceding to the occurrence and as per the witnesses account, the victim was grilled about the entire episode of eloping of the sister of accused Shyam Bihari Singh and was suo motu taken to the house of the accused Shyam Bihari Singh located in the vicinity of the house of the informant from where the victim was recovered. So, there was no intention of the appellants to kidnap the victim with intention to do away with his life as had they intended to eliminate him, there was ample opportunity to execute their intention, but they did not do so. Hence, for want of intention to do away with the life of the victim, no offence under Section 364 of the Indian Penal Code is made out. Utmost offence for wrongful confinement, punishable under Section 342 is made out against them, though there is no sufficient material on record to substantiate the guilt of the appellants in this regard.
13. On the other hand, learned APP advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence, submitted that the witnesses examined by the prosecution have fully supported the prosecution case and the ocular evidence also stand corroborated by the medical evidence and Patna High Court CR. APP (SJ) No.503 of 2002 dt.07-09-2017 6/13 after rightly appreciating the facts, law and evidence on record, the learned lower court has passed the impugned Judgment and Order of conviction and sentence, and the same is liable to be sustained and this appeal has no substance in it and is liable to be dismissed.
14. On perusal of the record, it appears that PW-1 (Umesh Kr. Singh) happens to be the victim himself and PW-2 (Paras Nath Singh) is the informant of the case. Though, the aforesaid witnesses in their respective examination-in-chief have made an abortive bid to support the prosecution case as PW-1 Umesh Kumar Singh has stated that on the date and time of occurrence, while the victim (Umesh Kumar Singh) was near the house of Prayag Kohar and was interacting with late Radha Singh accused Shyam Bihari Singh arrived there on his truck bearing registration no. BPW-8858 and after parking the truck there, all the three accused persons started assaulting Umesh Kumar Singh by means of rod and then dumped him in the truck and tying his mouth and hands by means of gamcha, took him towards Behea. They halted the truck on the Behea Jagdishpur road and got him alighted from the truck and took him to the boring after tying his hand with rope and tied with the pillar and started grilling him about the episode of eloping of the sister of accused Shyam Bihari Singh. Thereafter, they tied him with the berry tree and went to the boring to bring match, jhalas and garasi from the boring. They were interacting as to how the case will be lifted and Patna High Court CR. APP (SJ) No.503 of 2002 dt.07-09-2017 7/13 they took him to his village while PW-2 (Paras Nath Singh) has stated in his examination-in-chief that on the date and time of occurrence while he was proceeding to his house and arrived near the house of Prayag Kohar, he spotted truck of Shyam Bihari Singh parked there, Shyam Bihari Singh, Dharam Nath Singh and Chhatradhari Mahto were assaulting the victim (Umesh Kumar Singh) by means of rod. Thereafter, they dumped him in the truck and drove away towards Behea. The sister of Shyam Bihari Singh had eloped, so wrongly blaming the victim (Umesh Kumar Singh) in the occurrence, they had kidnapped him in order to do away with his life.
15. Attention of the aforesaid two witnesses were drawn by the defence in paragraph 13 of PW-1 (Umesh Kumar Singh) and paragraph 12 of the PW-2 (Paras Nath Singh) regarding the contradiction between the statement given by them before the court and that given before the I.O. under Section 161 of the Cr.P.C. regarding the occurrence. The I.O. has confirmed the aforesaid contradiction in the statement of the said witnesses given before the court and that given before him under Section 161 of the Cr.P.C.
16. Thus, on the perusal of the aforesaid statement of the witnesses, it appears that PW-1 (Umesh Kr. Singh) and PW-2 (Paras Nath Singh) have taken altogether different stand in the court. PW-1 and PW-2 happen to be the victim and informant respectively and they are highly interested witnesses of the occurrence. It is the Patna High Court CR. APP (SJ) No.503 of 2002 dt.07-09-2017 8/13 settled principle of law that testimony of the interested witness should not be discarded ourtightly rather it should be scanned and scrutinized cautiously and carefully. On careful and cautious scanning of the testimonies of the aforesaid witnesses and that of I.O. in view of the aforesaid contradictions between their statement recorded before the court and that given before the I.O. under Section 161 of the Cr.P.C, the aforesaid witnesses do not appear to be reliable and worth credence.
17. As per the statement of the informant itself, his co-villager Shivji Singh and several other persons had witnessed the occurrence. PW-1 (Umesh Kr. Singh) in paragraph 4 of his cross-examination has also stated that he arrived at the place of occurrence through open land skipping the main road. All the vehicles, bus and truck of the village are parked there, which means that the place of occurrence is crowded place and number of persons must have been present there at the time of occurrence and witnessed the occurrence, but none of the independent witness has been examined by the prosecution without assigning any plausible and acceptable reason which creates serious doubt about the prosecution case and adverse inference is drawn against the prosecution.
18. As per prosecution case as mentioned in the statement of the informant itself that the accused persons are suspecting the hand of the victim (Umesh Kumar Singh) in the Patna High Court CR. APP (SJ) No.503 of 2002 dt.07-09-2017 9/13 incident of eloping of the sister of accused Shyam Bihari Singh five days preceding to the occurrence. PW-1 (Umesh Kumar singh) has also stated in paragraph 1 of his examination-in-chief that after tying him with the pillar at their boring, the accused persons grilled him about the episode of eloping of a girl in the house of the accused persons two days back. PW-2 (Paras Nath Singh) in paragraph 3 of his examination-chief has stated that sister of Shyam Bihari Singh had eloped. The accused persons had kidnapped his son (Umesh Kumar Singh) in order to eliminate him, blaming his involvement in the occurrence of eloping. From the perusal of the prosecution case and the account of the witnesses, it appears that the appellants had kidnapped the victim (Umesh Kr. Singh) suspecting his involvement in the eloping of the sister of the accused Shyam Bihari Singh and had grilled him about the episode of said eloping, tying him with the pillar at their boring. Then they took him to their house located in the vicinity of the house of the informant from where the victim was recovered by the police.
19. As per the prosecution case and witnesses account, the accused persons were three in numbers and they were thrashing the victim by means of rod. The aforesaid aspect of the case goes to rule out the intention of the appellants to kidnap the victim for committing his murder as had they intended to do away with his life, they had ample opportunity to execute their intention as they were Patna High Court CR. APP (SJ) No.503 of 2002 dt.07-09-2017 10/13 three in numbers and were armed with rod and there was no intervening circumstance at the place where the victim was taken and were tied with the pillar, but they did not do so rather they took the victim to their house located in the vicinity of the informant.
20. The prosecution has laid much emphasise on the statement of the victim recorded in paragraph 1 of his examination- in-chief to the effect that after tying him with the berry tree, the appellants went to bring match, jhalas and garasi from boring. They were interacting as to how the case would be lifted, then he came to know that his father has lodged the case then the accused persons took him to their village, submitting that the aforesaid statement of the victim indicates that the appellants had intended to eliminate the victim first, but after learning the filing of the case by his father, they dropped the idea of eliminating the victim and took him to their village scaring their implication in the case. But the aforesaid submission of prosecution does not appear to be convincing and appreciable. As the victim has not given the full description of the case which was the subject matter of the interaction of the appellants and more so the victim has not disclosed the name of the accused persons of the said case leading to the dropping of the idea of elimination of the victim by the appellants.
21. Section 364 of the Indian Penal Code is made out when the victim is kidnapped or abducted in order that he may be Patna High Court CR. APP (SJ) No.503 of 2002 dt.07-09-2017 11/13 murdered or may be so disposed of as to be put in danger of being murdered.
22. In view of the aforesaid facts, in my considered opinion, the offence under Section 364 is not made out against the appellants as the appellants had not kidnapped the victim in order to eliminate him rather had taken him away to their boring in order to grill him about the episode of eloping of the sister of the accused Shyam Bihari Singh preceding to the occurrence suspecting the hand of the victim in the said occurrence of eloping. Hence, the appellants are acquitted from the offence punishable under Section 364 of the Indian Penal Code and order of conviction and sentence passed against them under Section 364 of the Indian Penal Code by the learned lower court is set aside.
23. The PW-1 (Umesh Kumar Singh) victim in his examination-in-chief has stated that the appellants took him to their house from boring. PW-2 (Paras Nath Singh) has stated in paragraph 4 of his examination-in-chief that police had recovered the victim from the house of Shyam Bihari Singh and the I.O. has stated in paragraph 3 of his examination-in-chief that he raided the house of Shyam Bihari Singh and arrested him and recovered the kidnapped Umesh Kumar Singh from there. Thus, in view of the aforesaid statement of the witnesses, it is established that the victim (Umesh Kumar Singh) was wrongly confined by the appellants at their boring Patna High Court CR. APP (SJ) No.503 of 2002 dt.07-09-2017 12/13 and at their house and the victim was recovered from their house on the following day of the occurrence. Hence, the appellants are convicted for the offence punishable under Section 342 of the Indian Penal Code i.e. for wrongful confinement of the victim.
24. On perusal of the injury report of the victim, it appears that he has sustained altogether five injuries on different parts of his person and all the injuries have been opined by the doctor as simple in nature caused by hard and blunt substance. The doctor examined in the case as PW-3 has also proved the injury report and finding of the injuries on the person of the victim as mentioned in the injury report. The victim and informant have also stated in their respective examination-in-chief that the victim was assaulted by means of rod. Hence, in view of aforesaid ocular and documentary evidence, I find and hold that offence punishable under Section 323 of the Indian Penal Code is made out against the appellants. Hence, the appellants are also convicted for the offence punishable under Section 323 of the Indian Penal Code.
25. From the perusal of record, it appears that the appellants had been languishing in custody for quite some days i.e. 1 month 6 days, 26 days and 1 month 29 days respectively and occurrence is of way back of 15 years. Hence, instead of awarding punishment, I think it proper and adequate to slap them with a fine which would meet the end of justice. Accordingly, all the three Patna High Court CR. APP (SJ) No.503 of 2002 dt.07-09-2017 13/13 appellants are slapped with a fine of Rs. 1,000/- each for the offence punishable under Section 342 of the Indian Penal Code and fine of Rs. 1,000/- each for the offence punishable under Section 323 of the Indian Penal Code and in default of payment of fine they will undergo R.I. for one month each under the aforesaid Sections. Accordingly, the impugned judgment and order of conviction and sentence passed by learned lower court is modified and this Criminal Appeal is disposed of.
(Prakash Chandra Jaiswal, J) rohit/-
AFR/NAFR AFR CAV DATE N.A. Uploading Date 18.09.2017 Transmission 18.09.2017 Date