Criminal Appeal (DB) No. 454 of 2006 Against the Judgment of conviction and order of sentence dated 30 th January 2006 & 17th February, 2006 respectively, passed by Sri Sunil Kumar Singh, Additional Sessions Judge, Fast Track Court-VII, Giridih in Sessions Trial No. 10(A) of 2004. Baleshwar Yadav………………………… Appellant Versus The State of Jharkhand……………… Respondent …… For the Appellant : Mr. Ram Lakhan Yadav, Advocate For the State : Mr. Azimuddin, A.P.P. …… P R E S E N T The Hon’ble the Acting Chief Justice The Hon’ble Mr. Justice Ananda Sen J U D G M E N T C.A.V. On 29/09/2016 Delivered on. /11/2016 Ananda Sen, J.
The appellant Baleshwar Yadav stood convicted for committing an offence punishable under Sections 364 (A)/ 120 B of the Indian Penal Code and further has been sentenced to undergo imprisonment for life and also to pay a fine of Rs. 3000/-. The aforesaid judgment of conviction and order of sentence has been passed by the Additional Sessions Judge, Fast Track Court No. VII, Giridih on 30 th January, 2006 & 17th February, 2006 respectively, in Sessions Trial No. 10 (A) of 2004 (arising out of Gawan P.S. Case No. 26/03, corresponding to G.R. No. 890/03).
2. A first information report was lodged by one Bishnu Sao (PW-6), S/o Late Toral Sao on 26.05.2003 stating therein that on 25.05.2003 at about 10:00 P.M. his son Santosh Kr. Sao (victim and PW-4) alongwith several other villagers had gone to see “Yagya” at Village Kahuwari by Tractor. The Tractor was being driven by the Driver Damodar Choudhary (PW-1). While returning from the village Kahuwari, at about 01:00 A.M, in the intervening night of 25/26.05.2003, when they reached near Ghaghra Bridge, suddenly 7-8 persons/miscreants, armed with Pistol etc., blocked the road and stopped the said Tractor. One of them, pointed the Pistol towards the Driver and the others took away Santosh Kr. Sao, son of the -2- informant, alongwith them towards the Southern side. The miscreants had covered their faces with towels. It was further mentioned in the fardbeyan that alongwith his son many other persons including Pankaj Sao and one ‘Chandsi Doctor’ were on the Tractor. The informant casted his doubt that his son has been kidnapped for ransom.
3. On the basis of the said written report, Gawan P.S. Case No. 26 of 2003 was registered, against unknown for the offence punishable under Sections 364 (A)/34 of the Indian Penal Code.
4. After completion of investigation, charge sheet was filed in the Court of the Chief Judicial Magistrate under Section 364 (A)/120 B of the Indian Penal Code. After complying all the provisions of law, the case was committed to the Court of Sessions for trial. Charges were framed against this appellant and he was put on trial as he pleaded not guilty of the charges.
5. The prosecution, in order to prove its case, examined altogether seven witnesses and also exhibited several documents. PW-1 is Damodar Choudhary. PW-2 is Binod Sao. PW-3 is Pankaj Sao. PW-4 is Santosh Kumar (Victim). PW-5 is Raj Kumar Singh. PW-6 Bishun Sao is the informant of the Case and PW-7 Rativan Singh, is the Investigating Officer of the case.
6. The prosecution has also exhibited several documents in this case. Ext.1-Letters written by the victim Santosh Kr. Sao dated 31.05.2003. Ext.1/1-letter dated 05.06.2003. Ext.1/2 – letter dated 05.06.2003. Ext. 1/3- letter dated 31.05.2003. Ext.2- Signature of Bishun Sao on the fardbeyan. Ext.3- Signature of Bisun Sao on the seizure list. Ext. 3/1- Signature of Officer-in-Charge on the seizure list. Ext. 3/2- Entire seizure list. Ext.4- Entire fardbeyan. Ext. 4/1- Signature of S.I. Rativan Singh on fardbeyan. Ext. 4/2- Endorsement on the fardbeyan. Ext. 5- the formal F.I.R. of this case. -3- 7. After closure of evidence of the prosecution, statement of the accused was recorded under Section 313 of the Code of Criminal Procedure. The accused did not lead any evidence in his defence.
8. After analyzing the evidence, the trial court vide its judgment dated 30th January, 2006 convicted this appellant/accused for the offence punishable under Section 364 (A)/120 B of the Indian Penal Code and sentenced him to undergo imprisonment for life alongwith fine of Rs. 3000/-.
9. Being aggrieved by the said judgment of conviction and sentence awarded to the appellant, the appellant has preferred the instant appeal.
10. We have heard learned counsel appearing for the appellant and learned Addl. Public Prosecutor appearing for the State.
11. Learned counsel appearing for the appellant submits that the appellant is absolutely innocent and there is no material to convict him for the said offences. He further submits that from the evidence adduced by the prosecution, by no stretch of imagination, this appellant could have been convicted. He submits that from bare perusal of the evidences adduced it can be safely understood that the prosecution has failed to establish any overt act by this appellant. He further submits that there are material contradictions in the statements of the informant (PW-6)- the father of the victim, and the statement given by PW-4 the victim, which is fatal for the prosecution. It is also submitted that the material witnesses of the occurrence have been withheld by the prosecution without any explanation for which adverse inference should be drawn and the accused should be acquitted. He further submitted that the independent witness, who has been examined in the instant case, has also not supported the prosecution case. As per the statement of Pankaj Sao (PW-3), the name of this appellant was disclosed to the informant prior to lodging of the FIR but surprisingly enough the FIR is against unknown which clearly proves -4- that the FIR does not depicts the correct picture. He submitted that there is no evidence to suggest that the appellant had entered into conspiracy with any person and thus there is no application of Section 120B of the Indian Penal Code. He lastly submits that the prosecution has failed to prove the guilt of this appellant beyond all reasonable doubt, thus, this appeal is liable to be allowed and the appellant deserves acquittal.
12. On the other hand, learned APP argues that this appellant is guilty of the offence and all the witnesses have consistently supported the prosecution version. He submits that small discrepancy in the evidences of the witnesses cannot demolish the entire prosecution case. He submits that PW-6, the father of the victim has categorically stated that he had paid the ransom to the kidnappers and relying on the evidence of this witness the court below has rightly convicted this appellant. He further submits that the Driver of the Tractor, i.e. PW-1 Damodar Choudhary has categorically stated that the victim Santosh Kr. Sao (PW-4) was kidnapped in his presence. He submits that PW-6 has established the presence of this appellant alongwith others and thus, the conviction of this appellant is absolutely justified and his appeal is liable to be dismissed.
13. We have gone through the entire lower court record including depositions and exhibits. It appears that the first information report was registered under Section 364 (A)/34 of the Indian Penal Code, against unknown.
14. PW-1 is Damodar Choudhary, the driver of the Tractor. He stated that he was driving the Tractor which belongs to the victim. Pankaj Sao, Vinod Sao, Raj Kumar Singh and Chandsi Doctor were with the victim Santosh Kr. Sao. The minor daughter of the victim Santosh Sao was also with them. He stated that when they reached near Ghaghra River Bridge, the Tractor was stopped by 7-8 miscreants, who were armed with weapons. One of them, pointed a firearm towards this witness and the -5- others brought down Santosh Sao from the Tractor and took him with them to the Southern side of the forest. He deposted that Pankaj, who was also a co-passenger, told him that one of the miscreants were identified by him who was Baleshwar Yadav, i.e the appellant herein. In his cross-examination, he stated that he gave all the information to Bishun Sao and he also stated that he did not tell Bishun Sao that Pankaj Sao has identified this appellant, rather it was Pankaj Sao, who himself had informed Bishun Sao about the involvement of this appellant in the said offence.
15. PW-2 is Binod Sao, he was also one of the co-passenger with the victim in the Tractor, who went to see the “Yagya”. He stated that he, alongwith Rajkumar Singh, Chandsi Doctor, Santosh Sao, Pankaj Sao, Govind Singh and others went to see the “Yagya”. He stated that while returning, 6-7 miscreants stopped the Tractor and on the point of pistol Santosh Kr. Sao (PW-4), was kidnapped. He stated that one of the accused was known to him. He further stated that he did not tell Bishun Sao that this appellant was one of the miscreants/accused, who kidnapped the son of the informant.
16. PW-3 is Pankaj Sao, who was also a co-passenger. He also stated that Chandsi Doctor, Raj Kumar Singh, Ramawtar and some other persons were with him. In his statement he stated that one Ramawtar was driving the Tractor. He stated that he could identify two accused namely Baleshwar Yadav (appellant) and Basudeo Yadav. To a Court question he stated that he disclosed the name of Baleshwar Yadav to Bishun Sao the informant. He also submits that these accused persons were known to this witnesses prior to the occurrence.
17. PW-4 is the victim Santosh Kr. Sao. He stated that on 25.05.2003, he accompanied Rajkumar Singh, Chandsi Doctor, Pankaj and others to see the “Yagya”. He stated that his minor daughter was also with him. He -6- deposed that the driver of the Tractor was Ramawtar Chaudhary. He stated that he was kidnapped and taken to the Forest. He deposed that he was assaulted and was forced to write letters to his father by which demand of ransom was made. He stated that this appellant alongwith one Basudeo Yadav was instrumental in getting the letters written by this appellant. He stated that when he reached home he could come to know that Rs. 1.25 lakhs was given by his father for his release. He stated that he was left near the Jungle from where he returned to his house.
18. PW-5 is Raj Kumar Singh. He was also one of the co-passenger of the Tractor. He stated that the victim was kidnapped and Pankaj told him that one of the kidnappers was Baleshwar Yadav. He also admitted that he knew Baleshwar much before the date of occurrence but, since, the accused had covered their faces with towels, he could not identify any of them.
19. PW-6 Bishun Sao is the informant, who stated that his son was kidnapped. He further stated that he went to the police station and lodged first information report. He stated that he received letters demanding ransom and he alongwith one Mahendra Sao and Bhimlal Sao went to the forest to meet the kidnappers. He stated that an amount of Rs. 10 lakh was demanded and he showed his inability to pay the same. He stated that he was also assaulted. He stated that Baleshwar Yadav, i.e the appellant was there who stated that they will also kidnap the second son of the informant to recover the entire ransom money. He further stated that after 6-7 days, he alongwith Mahendra Sao and Bhimlal Sao again went to the forest and then he agreed to pay Rs. 1.25 lakhs as ransom. On the next day, he, alongwith Mahendra Sao and Bhimlal Sao, went to the forest with ransom money. He stated that on receiving the money the miscreants asked him to wait till 9:00 P.M, by that time the victim was supposed to the released. He further stated that his son was released at about 09:30 -7- P.M who came to him. This witness has further stated that he, alongwith his son, returned to his house. He exhibited the letters, which were written to him demanding ransom. He admitted that before lodging the FIR he had a talk with Pankaj, who had disclosed the name of this appellant Balesh Yadav and one Basudeo Yadav as the miscreants, who had kidnapped the victim.
20. PW-7 is Rati Bhan Singh, who is the Investigating Officer of the case. He submitted that on 26.05.2003 he received rumors that one person of Village Pihra has been kidnapped. On receiving such information, he made station diary entry and went to the village Pirha and recorded the statement (fard-beyan) of the Informant, PW-6. He exhibited the FIR. He stated that he has recorded the statements of Pankaj Sao, Raj Kumar Singh, Damodar Choudhary and Binod Sao. He stated that he also recorded the statement of victim, who disclosed the name of this appellant. In his cross-examination, he stated that he has not entered the station diary number in the case diary. He stated that the informant also did not disclose the name of the suspects/ accused to him. He stated that he has not recorded the statement of the informant after the victim was released.
21. The appellant-accused was examined under section 313 Cr.P.C, who completely denied the allegation leveled against him.
22. Now, on the basis of the evidences recorded, it has to be examined whether the prosecution has been able to prove its case beyond all reasonable doubt or not? The witnesses to the occurrence of kidnapping were PW-1 Damodar Choudhary (Driver), PW-2 Binod Sao, PW-3 Pankaj Sao, PW-5 Raj Kumar Singh and the victim Santosh Kumar himself, who is PW-4. PW-1 claimed himself to be the driver of the vehicle, but Raj Kumar Singh (PW-5) and Pankaj Sao (PW-3) have stated that it was one Ramawtar Choudhary, who was driving the vehicle. From the evidences of PWs-1, 2, -8- 3 and 5, it is quite clear that Pankaj Sao had identified this appellant when they were kidnapping the victim. It is also evident from the statements that Pankaj Sao disclosed the name of this appellant to the informant as one of the kidnappers prior to lodging of the FIR. This fact has also been admitted by the informant (PW-6) Bishun Sao the father of the victim. Strange enough, when the identity of this appellant, as a kidnapper, came to light prior to lodging of the FIR, yet the FIR was registered against unknown. This creates a doubt about the prosecution case. The credibility of this witness is shaken. The FIR, which is against unknown, suggests that none of the witnesses had identified this appellant. If this appellant was identified, prior to lodging of the FIR, then what was the reason not to disclose his name in the FIR? This fact has not been explained by any of the witnesses nor the informant.
23. On the point of payment of ransom, the sole witness is the informant (PW-6). PW-6, in his statement, has categorically stated that he accompanied Mahendra Sao and Bhimlal Sao in the Forest for the negotiation and then for handing over the money. There was two independent witnesses on this point. The independent witnesses on the point of payment of ransom i.e. Mahendra Sao and Bhimlal Sao were surprisingly not produced as witness to prove the point that ransom was paid. It was necessary for the prosecution to produce Mahendra Sao and Bhimlal Sao as the informant was the highly interested witness. The statement of the informant that he had paid Rs. 1.25 lakhs, as ransom, needed corroboration from the evidence of independent witnesses. It is true, that the testimony of sole credible witness cannot be brushed aside, provided he is an uninterested witness and his evidence is unimpeachable.
24. It is well settled now that it is not the number and quantity, but the quality of the witness, which is material. It is the duty of the Court to -9- consider the trustworthiness of evidence on record which inspires confidence and the same has to be accepted and acted upon and in such a situation no adverse inference should be drawn from the fact of non- examination of other witnesses. It is also to be seen whether such non- examination of a witness would carry the matter further so as to affect the evidence of other witnesses and if the evidence of a witness is really not essential to the unfolding of the prosecution case, it cannot be considered a material witness.
25. The issue of non-examination of material witnesses/withholding material witnesses was discussed by the Hon'ble Supreme Court in the case of “Takhaji Hiraji- versus- Thakore Kubersing Chamansing & Ors., reported in (2001) 6 SCC145” In the said case the Hon'ble Supreme Court has opined that:- “It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinize the worth of the evidence adduced. The Court of facts must ask itself-whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court? If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their -10- mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses.”
26. Thus, from the aforementioned decision it is evident that the facts and circumstances of each case is to be dealt with separately. In the instant case, applying the said ratio it has to be seen whether it was necessary to examine these two witnesses (Mahendra Sao and Bhimlal Sao) or not and whether such witnesses were available to be examined and yet were being withheld from the Court? In the instant case, as per the prosecution except PW-6, i.e. the informant, there were other two persons namely Mahendra Sao and Bhimlal Sao, who were reliable witnesses of the prosecution to prove the payment of ransom. These two persons were definitely available to be examined but yet they were withheld. Since, these two witnesses were not examined, the only witness on the point of payment of ransom is PW-6, who is the informant, the father of the victim. This witness is a highly interested witness and some corroboration was necessary which could have easily been done by producing these two persons namely Mahendra Sao and Bhimlal Sao. Further, this witness is not completely trustworthy as because he is the author of the FIR, which is against unknown though as per his own evidence and as per the evidence of PWs-1, 2, 3 & 5, the identity of this appellant was disclosed to the informant much before lodging the FIR. Thus, for withholding these two witnesses an adverse inference can be drawn against the prosecution. Withholding of these two persons casts doubt on the prosecution case that ransom was paid for release of the victim.
27. Thus, on cumulative effect what has been discussed above, there is serious doubt about the truthfulness of the prosecution case. From the entire evidence discussed above, it can easily be held that the prosecution has not been able to prove the charge against the appellant under Section 364 (A)/120B of the Indian Penal Code beyond all reasonable doubts and -11- since the prosecution has failed to prove its case beyond all reasonable doubts against this appellant, the appellant deserves to be acquitted of the charges and the judgment of conviction and sentences passed against the appellant, is liable to be set aside.
28. Accordingly, this appeal is allowed and the impugned judgment of conviction and sentence dated 30th January, 2006 and 17th February, 2006 respectively, passed by the trial court in Sessions Trial No. 10 (A) of 2004 against this appellant, is hereby set aside. The appellant, who is in custody, is directed to be set at liberty forthwith if not wanted in any other case. (Ananda Sen, J) Pradip Kumar Mohanty, ACJ (Pradip Kumar Mohanty, ACJ) Jharkhand High Court, Ranchi The November, 2016 NAFR/Mukund/cp.3