Anil Kumar Sinha, J.@mdashThe sole appellant Shambhu Nath Singh has been convicted under sections 304, 302 and 201 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life u/s 302 I.RC. and further sentenced to undergo R.I. for ten years u/s 364 and for a period of five years u/s 201 I.RC. All the sentences were directed to run concurrently The prosecution story as per the written report of the informant is that on 11.11.1984 the informant''s son Mahendra Kumar and Ashok Kumar had gone to take wine in Sipara Bhatti and in course of drinking wine some altercation took place with Shambhu Pd. Singh and his friends and in course of quarrel they took away Mahendra Kumar and Ashok Kumar to some unknown place. The informant along with the villagers made search of Mahendra Kumar and Ashok Kumar but could not get any trace of them. So the informant was going to inform the police along with Ram Prasad RW. 5 and on the way he met the appellant and all of them were proceeding to the police station but on the pitch road a mail van of G.P.O. was coming on which there was police force also. On that van the informant along with Ram Prasad Ram and the appellant boarded but on the way the informant and Ram Prasad were asked to get down and go to Jakkanpur P.S., and the van went away along with the appellant. On the basis of the written report of the informant a case under sections 364/365 of the I.RC. was instituted against the appellant and the driver as well as the overseer of the van. Later on the case was converted into section 302/201/34 I.RC. read with section 27 of the Arms Act, after the recovery of the dead body of Mahendra Kumar and Ashok Kumar. The police submitted charge sheet in the case u/s 302/364, 201/34 of the Indian Penal Code, on the basis of which cognisance was taken and the case was committed to the court of session for trial.
2. In this case the prosecution has examined altogether 12 witnesses out of whom P.W. 1 is Binod Prasad, RW. 2 Chandra Mohan Prasad is the own brother of the deceased Ashok Kumar. P.W. 3 Lal Bihari Prasad (informant), RW. 6 Ram Pati Ram who is dafadar of the village. P.W. 7 Ram Briksh Ram has been tendered, RW. 8 Ram Prasad Paswan has been declared hostile. RW. 9 Rajendra Singh is a witness on inquest report who has proved his signature as also the signatures of Ajit Kumar (Ext. 1/1 to 1/4). RW. 11 Dr. Ram Krishna Pd. Singh had conducted the autopsy on the dead body of the deceased and P.W. 12 Ram Raj Singh is the I.O. of his case. As such it would appear that the above named witnesses are not on the point of occurrence.
3. P.W. 4 Keshav Prasad has deposed that on 11.11.1984 he went to Sipara Bhatti along with Mahendra Kumar, Ashok Kumar and Ram Prasad and six to seven unknown persons were also there who were quarreling on account of the snatching of watch and on hearing the noise Chaukidar came and turned them out. Thereafter, they had came near Sipara Gumati where the deceased Ashok Kumar said that his watch is missing so all of them returned back to the pool where 8 to 9 persons were standing. He further stated that those persons caught hold of Mahendra Kumar and Ashok Kumar and inspite of the request made by him they did not release them and showed revolver to him on which he fled away. P.W. 4 has stated that he informed about the occurrence in the house of the deceased and proceeded for searching Mahendra Kumar and Ashok Kumar. Although this witness has been declared hostile by the prosecution but it is evident that he has not named the appellant as one who took away the deceased person along with his associates. In fact, the evidence of P.W. 4 goes to show that when the deceased persons were kidnapped the appellant was not present along with those persons who had kidnapped them.
4. P.W. 5 Ram Prasad has stated that while he was drinking wine at Sipara Bhatti along with Mahendra Kumar and Ashok Kumar and Keshav, the appellant also came there with his five to six friends and Shambhu Prasad snatched the watch of Ashok Kumar on account of which a quarrel started and Chaukidar drove them out from the Bhatti. Thereafter everybody proceeded for their respective house. He has then stated that when they reached near Sipara Gumti it was noticed that the watch is missing so he along with the deceased persons returned back to recover the watch and when they reached near the pool, he saw that Shambhu Nath Singh along with his 8 to 9 associates were standing and they all started assaulting and after that they took away Ashok Kumar and Mahendra Kumar. He has further stated that they showed revolver on which he fled away along with his friends and informed about the occurrence to the villagers. The villagers along with this P.W. made search in the village but could not get trace of Mahendra Kumar and Ashok Kumar and on the following morning they went to the house of Shambhu Nath Singh who also came up to the pool and in the meantime a postal van came on which this P.W. along with Shambhu Nath Singh boarded and took them to Punpun. On return from Punpun this P.W. was dropped on the way and the van proceeded towards Parsa Bazar along with Shambhu Nath Singh. It appears that P.W. 5 has exaggerated the prosecution version, in as much, as there is nothing in the first information report that any watch was snatched by Shambhu Nath Singh on account of which a quarrel took place. There is also nothing in the written report of the informant to show that when P.W. 5 was returning back with P.W. 4 and the deceased persons it was noticed that the watch is missing so they returned back and reached to Sipara pool for the sake of recovery of watch and Shambhu Nath Singh was seen there along with his companion and they kidnapped the deceased persons. As such it would appear that P.W. 5 has developed the story regarding the snatching of watch which according to him was the very genesis of the alleged occurrence. Therefore, the alleged story of the snatching of watch has been introduced by the P.W. 5 for the first time in his evidence appears to be quite doubtful. P.W. 5 has admitted in his cross examination that he has never drunk wine in Sipara till the date of his examination which makes his presence doubtful on the alleged date of occurrence in the bhatti. P.W. 5 has admitted in his cross examination that in the early morning he along with villagers had gone to the house of the appellant who had also accompanied them in the search of the deceased persons. If this be the fact then the alleged prosecution story that this appellant along with his associates had kidnapped the deceased persons would appear highly doubtful because it would be against the natural conduct of an accused that he would be present in the house after committing such a serious offence and shall accompany the villagers in the search of the deceased persons. If the appellant would have really kidnapped the deceased persons he would not have been present in his house in the early morning of the next day nor it was expected that he will also go to search the deceased persons. As such the evidence of P.W. 5 that the appellant along with his friends took away the deceased persons from the place of occurrence does not inspire confidence and the evidence of P.W. 4 makes it clear that the appellant was not present when the deceased persons were kidnapped by unknown 8 to 9 persons near Sipara pool. That apart the testimony of P.W. 5 has not been corroborated by any witness or by any cogent circumstances which may show that he is a reliable witness. P.W. 5 has admitted in his cross examination that the wife of deceased Ashok was married to his own younger brother after the alleged occurrence, it has been suggested to this witness that he has illicit connection with his own aunt from before and after murder of Ashok Kumar, he married her with his own younger brother and still maintaining that relationship.
5. P.W. 5 has stated that Dafadar and Chaukidar were also the witnesses to the alleged occurrence which took place in the bhatti. P.W. 6 Rampati Ram is the Dafadar who has deposed that he along with Ram Prasad Paswan and Ram Briksh were on duty at Sipara bhatti on the alleged date of occurrence and there was some hue and cry in the bhatti so he pacified the quarrel and both parties went away to their respective destination, RW. 6 has also not whispered a word regarding the alleged story of snatching of watch nor he has stated that any quarrel had taken place between the appellant or any other person. It appears that dafadar had asked the owner to close down the bhatti after the quarrel was pacified by him. P.W. 8 Ram Prasad Paswan has also made similar statement and it does not appear from his evidence that any sort of quarrel took place regarding snatching of watch between the appellant and the deceased Ashok Kumar.
6. P.W. 11 Dr. R. K. P. Singh has proved the postmortem report of the deceased persons Ext. 2 to 2/1 and has admitted in his cross examination that the postmortem examination was not conducted in his presence. P.W. 12 Ram Raj Singh is the I.O., of this case who has proved the first information report and has stated about the place of occurrence and has stated that he did not seize any significant thing from the place of occurrence nor seized any blood. His attention was drawn to certain contradictions made by the witnesses. There is nothing else worth comment in his evidence. From the above analysis of evidence it would transpire that there is no eye witness who saw the murder of the deceased persons and the sole testimony of P.W. 5 showing the participation of this appellant at the time of kidnapping of the deceased persons does not inspire confidence to believe and is not above doubt. Therefore it will not be safe to uphold the conviction of the appellant on the uncorroborated evidence of P.W. 5 which is of doubtful nature as has been discussed above. I am therefore, of the view that the prosecution has not proved the charges against the appellant beyond reasonable doubts. Accordingly the appellant is acquitted of the charges. This appeal is allowed and the judgment and order of conviction and sentence recorded by the trial court is set aside. The appellant who is in jail is directed to be released forthwith if not required in any other case.
R.N. Prasad, J.
I agree.
