Anil Kumar Rai @ Birbal @ Anil Kumar ... vs The State Of Bihar
2021 Latest Caselaw 5478 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (DB) No.84 of 2018
      Arising Out of PS. Case No.-94 Year-2017 Thana- PATORI District- Samastipur
======================================================

Pinki Devi, Wife of Mukesh Chaudhary @ Pam Pam Chaudhary, Resident of village- Sahdai, Police Station- Sahdai, District- Vaishali at Hajipur.

... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 82 of 2018 Arising Out of PS. Case No.-94 Year-2017 Thana- PATORI District- Samastipur ====================================================== Anil Kumar Rai @ Birbal @ Anil Kumar @ Anil Ray, S/o Shatrudhan Rai, resident of Village- Sarari, P.S.- Patori, O.P.- Mohanpur, District- Samastipur.

... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== Appearance:

(In CRIMINAL APPEAL (DB) No. 84 of 2018) For the Appellant : Mr. Ajay Kumar Thakur, Advocate Mr. Imteyaz Ahmad, Advocate Mr. Malay Kumar Chaudhary, Advocate Mr. Vaishnavi Singh, Advocate Mr. Shivam, Advocate For the Respondent : Mr. Abhimanyu Sharma, APP (In CRIMINAL APPEAL (DB) No. 82 of 2018) For the Appellant : Mr. Niranjan Parihar, Advocate For the Respondent : Dr. Mayanand Jha, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH) Date: 24-11-2021

The appellants, in these two appeals, have

challenged the common judgment of conviction dated

13.12.2017 and the consequent order of sentence dated

14.12.2017 passed by the learned Presiding Officer, Fast Track

Court No. I, Samastipur (for the sake of convenience hereinafter Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

referred to as 'Trial Court') in Sessions Trial No.553 of

2017/467 of 2017 arising out of Patori P.S. Case No.94 of 2017.

2. By the aforestated judgment dated 13.12.2017, they

have been found guilty of committing offences under Sections

364-A/34 and 120-B/34 of the Indian Penal Code (for short

'IPC'). Vide the consequent order dated 14.12.2017, they have

been sentenced to undergo rigorous imprisonment for life on

both counts under Sections 364-A/34 and 120-B/34 of the IPC

and further each of them has been ordered to pay a fine of

Rs.10,000/- on both counts and in default of payment of fine, to

further undergo rigorous imprisonment for one year.

3. The prosecution case is based on the written report

of one Pappu Kumar Sah submitted to the Mohanpur out-post

Incharge on 05.03.2017 with regard to an occurrence dated

04.03.2017.

4. In the written report, the informant has stated that

his brother Tribhuwan Prasad was on his way to home after

closing his hardware shop situated at Mohanpur Pathalghat

Chowk. He did not reach his home in the night. A search for him

was made by the family members, but they could not get any

clue regarding his whereabouts. He further stated that his

brother was having a dual SIM mobile phone bearing Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

nos.9939290370 and 7250455768. He suspected that his brother

has been kidnapped by some unknown persons.

5. On receipt of the aforesaid written report, the

Incharge of Mohanpur out-post forwarded the same to the

Station House Officer (for short 'SHO'), Patori Police Station

for institution of the first information report (for short 'FIR') on

05.03.2017.

6. After receiving the written report from the police

out-post Incharge, the SHO, Patori Police Station instituted

Patori (Mohanpur) P.S. Case No.94 of 2017 against unknown

accused persons under Sections 364/34 of the IPC on

05.03.2017 at 2:30 p.m. and entrusted the investigation of the

case to Jawahar Rai, a Sub Inspector of Police-cum-Incharge of

Mohanpur out-post.

7. After completing the investigation of the case, the

Investigating Officer submitted charge-sheet under Sections

364-A and 120-B/34 of the IPC on 31.05.2017 vide charge-sheet

No.175 of 2017 against Anil Kumar Rai @ Birbal (appellant in

Cr. Appeal (DB) No.82 of 2018) and Pinki Devi (appellant in

Cr. Appeal (DB) No.84 of 2018) as well as Chandan Jha and

Roshan Kumar and kept the investigation pending against other

accused persons.

Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

8. On receipt of the charge-sheet, the learned Chief

Judicial Magistrate, Samastipur took cognizance of the offences

against all the six charge-sheeted accused persons vide order

dated 22.06.2017.

9. After taking cognizance of the offences and after

complying with the mandatory requirements of Section 207 of

the Code of Criminal Procedure (for short 'CrPC'), the learned

Chief Judicial Magistrate, Samastipur committed the case of the

four accused persons, who were in custody to the Court of

Sessions for trial vide order dated 01.07.2017.

10. During trial, charges were framed against the

appellants Pinki Devi and Anil Kumar Rai @ Birbal as well as

two others, namely, Pintu Kumar Rai and Chandan Kumar Jha

under Sections 364-A/34 and 120-B/34 of the IPC to which they

pleaded not guilty and claimed to be tried.

11. In order to prove its case, the prosecution examined

altogether nine witnesses. They are P.W.1 Manoj Sah, P.W.2

Akash Kumar, P.W.3 Pappu Kumar Sah, P.W.4 Dharamshila

Devi (mother of the informant), P.W.5 Kiran Devi (wife of the

victim Tribhuwan Prasad Sah @ Tuntun Sah), P.W.6 Jageshwar

Rai (the Investigating Officer of the case), P.W.7 Tribhuwan

Prasad Sah @ Tuntun Sah (victim), P.W.8 Pappu Kumar Rai and Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

P.W.9 Saroj Kumar Rai.

12. Apart from the ocular testimony of nine witnesses,

the prosecution got exhibited the following documents:

                     Sl.         Exhibits              Description
                     No.
                      1.              1         Written   report    by   the
                                                informant to the Incharge of
                                                Mohanpur out-post.
                      2.              1/1       Signature of the SHO Patori
                                                Police Station on the FIR.
                      3.              2         Forwarding of the written
                                                report by the Incharge of
                                                Mohanpur out-post to the
                                                SHO Patori Police Station for
                                                institution of the case.
                      4.              3         Registration      of      Patori
                                                (Mohanpur) P.S. Case No.94
                                                of 2017 dated 05.03.2017 on
                                                the basis of the written report.
                      5.              4         Memo of arrest of the accused
                                                Jaiki Kumar Rai.
                      6.         4/1 to 4/4     Memo of arrest of Anil
                                                Kumar Rai @ Birbal, Pappu
                                                Kumar Sah, Chandan Jha and
                                                Pinki Devi respectively.
                      7.              5         Seizure list of a motorcycle of
                                                black       colour      bearing
                                                Registration No.33X0758
                      8.              5/1       Seizure list of a white Alto
                                                vehicle bearing Registration
                                                No.BR07V9012.
                      9.              6         Statement of the victim
                                                Tribhuwan Prasad Sah @
                                                Tuntun Sah under Section 164
                                                of the CrPC recorded by a
                                                Magistrate.
                     10.              7         Signature of Pappu Kumar
                                                Rai on the seizure list.

Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

11. 7/1 Signature of the witness Pappu Kumar Rai on the seizure list of Alto car.

12. 7/2 Signature of the witness Saroj Kumar Rai on the seizure list.

13. 7/3 Signature of Saroj Kumar Rai on the seizure list of Alto car.

13. After the closure of the prosecution case, the

statements of the accused persons were recorded under Section

313 of the CrPC in which they took plea of innocence and of a

false implication.

14. The defence did not lead any evidence in support of

its case.

15. On completion of the trial and after hearing the

parties, the Trial Court convicted appellants and sentenced them

in the manner indicated hereinabove and acquitted the two other

accused persons, namely, Pintu Kumar Rai @ Pintu Rai and

Chandan Jha from the charges levelled against them.

16. While assailing the impugned judgment and order,

Mr. Ajay Kumar Thakur, learned counsel appearing for the

appellant Pinki Devi (Criminal Appeal No.84 of 2018)

submitted that the Trial Court failed to appreciate the evidence

adduced during trial. He contended that even if the entire

prosecution version is believed to be true at its face value, the Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

case would not fall under Section 364-A of the IPC, as there is

no evidence supporting the fact that the appellants ever

threatened the victim to cause death or hurt. He contended that

the victim's version regarding demand of ransom has not been

corroborated by P.Ws. 3, 4 and 5. He argued that in his

testimony, the victim disclosed that when he came back, he first

went to the office of the Deputy Superintendent of Police and

gave his statement and the Deputy Superintendent of Police

took him to the office of the Superintendent of Police, who also

recorded his statement. However, neither the Deputy

Superintendent of Police nor the Superintendent of Police was

examined during the trial. He further argued that neither the

victim nor any other witness has uttered a word regarding the

involvement of the appellants in the kidnapping of the victim.

He urged that the case was registered against unknown and

during investigation when the appellants Pinki Devi and Anil

Kumar Rai @ Birbal were arrested, they were not put on Test

Identification Parade. The victim identified Pinki Devi for the

first time in the dock. He submitted that the Investigating

Officer conducted a perfunctory investigation. He further

contended that the Trial Court erred in relying on the statement

of the victim made under Section 164 of the CrPC. According to Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

him, the statement made under Section 164 CrPC cannot be

treated as evidence especially, when the Magistrate, who had

recorded the statement was not examined during trial.

17. Mr. Niranjan Parihar, learned counsel appearing for

the appellant Anil Kumar Rai @ Birbal (Criminal Appeal (DB)

No.82 of 2018) while adopting the submissions made by Mr.

Ajay Kumar Thakur, learned counsel for the appellant Pinki

Devi submitted that P.Ws. 1, 2, 8 and 9 did not support the

prosecution case. They were declared hostile by the Court and

their evidence is of no help to the prosecution. He further

contended that P.Ws. 3, 4 and 5 are not witnesses to the incident.

They gave different account of the incident. He further

contended that identification of the appellants after several years

of the occurrence in dock for the first time cannot be made the

basis for conviction.

18. On the other hand, Dr. Mayanand Jha, learned

senior counsel appearing for the State being assisted by Mr.

Abhimanyu Sharma, learned Additional Public Prosecutor

submitted that the Trial Court has given cogent reasons for

arriving at the conclusion of guilt against the appellants. He

contended that the victim Tribhuwan Prasad Sah @ Tuntun Sah

was kidnapped for ransom by the miscreants, who came in a Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

Mahindra Scorpio SUV while he was on his way to home after

closing his shop situated at Mohanpur Pathalghat Chowk. He

contended that besides the Scorpio SUV, one white Alto car was

also used in the kidnapping of the victim. There is evidence that

the victim was kept in a three-storey building. A white Alto car

bearing Registration No. BR07V-9012 was also recovered by

the police during investigation. He contended that the Trial

Court rightly came to the conclusion that the Alto car belonged

to the appellant Anil Kumar Rai @ Birbal, which would be

apparent from the seizure list (Exhibit 5/1) and the evidence of

Investigating Officer. He contended that both the appellants

were identified by the victim in the dock. The evidence of the

victim finds corroboration from the evidence of P.Ws.3, 4 and 5.

He contended that the ingredients of the offence punishable

under Section 364-A of the IPC are clearly attracted, as the

victim has categorically stated that he was coerced while he was

in illegal confinement to demand Rs. 30 Lakhs from his brother.

19. We have heard rival contentions advanced on

behalf of the parties and carefully perused the record.

20. Manoj Sah (P.W.1) and Akash Kumar (P.W.2)

have categorically stated in their deposition that they do not

know anything about the incident. They stated that their Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

statement was not recorded by the police during investigation.

They were declared hostile by the Court at the request of the

prosecution. They were cross-examined by the prosecution.

However, nothing relevant could come out in their cross-

examination.

21. Pappu Kumar Sah (P.W.3), the informant, is the

brother of the victim. He has proved his writing and signature

on the written report, which has been marked as Exhibit -1. He

supported the prosecution case as narrated in the FIR. In his

testimony, he stated that his brother was recovered after 5-6

days at the Barauni Railway Station. He talked to his brother,

who disclosed him that Roshan, Sonu, Amitabh, Bambam

Choudhary and Pampam Choudhary were the persons involved

in his kidnapping. He identified the appellant Anil Kumar Rai

and an accused Pintu Kumar Rai in the dock as his neighbours.

He did not identify the appellant Pinki Devi and the accused

Chandan Jha. His evidence does not incriminate the appellants

in any manner.

22. Similarly, in her testimony, Dharamshila Devi

(P.W.4) supported the prosecution case as narrated in the FIR in

her examination-in-chief. She stated that on the 7 th day of the

kidnapping, her son Tribhuwan Prasad Sah came back to his Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

house. She disclosed that Bikram, Amitabh and Pampam were

the persons, who had kidnapped him. She did not identify any of

the accused persons including the appellants, who were present

in the dock.

23. Kiran Devi (P.W.5) stated in her deposition that

her husband did not come back to his house on 04.03.2017 in

the night. In spite of a search made for him, his whereabouts

could not be found. Subsequently, it came to light that he has

been kidnapped. After four days of kidnapping, her husband was

recovered at Jamui on 09.03.2017. He disclosed her that he was

abducted by the miscreants who came in a vehicle. He disclosed

her that the kidnappers took him to Jamui. He also disclosed her

that it was Roshan, Vikram, Pampam and Amitabh, who had

kidnapped him. She failed to recognize the appellants in the

dock.

24. Pappu Kumar Rai (P.W.8) stated in his evidence

that the seizure list was not prepared by the Investigating

Officer of the case in his presence. He further stated that he had

not stated anything about the occurrence to the police. At this

stage, he was declared hostile by the Court at the request of the

prosecution. In cross-examination, he identified his signature on

the two seizure lists, which were marked as Exhibits 7 and 7/1, Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

which relate to the seizure of a motorcycle and an Alto car. In

cross-examination made by the defence, he stated that the police

had obtained his signature on blank sheets of paper and in his

presence, nothing was recovered.

25. Saroj Kumar Rai (P.W.9) identified his signature

on the two seizure lists, which were marked as Exhibits 7/2 and

7/3 respectively. In cross-examination, he also stated that his

signature was forcibly obtained by the police on blank sheets of

paper and, in his presence, nothing was recovered.

26. Thus, the testimonies of P.Ws.1 to 5, 8 and 9 do not

incriminate the appellants in any manner.

27. Tribhuwan Prasad Sah @ Tuntun Sah (P.W.7) is

the victim of the case. According to him, the occurrence took

place on 04.03.2017 at 9:00 p.m. while he was going to his

house after closing the shop of hardware situated at Mohanpur

Pathalghat Chowk. When he covered half of the distance on his

way to his home, a white Scorpio SUV stopped near him. The

occupants of the vehicle inquired from him about the house of

one Upendra Rai, a Pramukh. He answered them that he does

not know Upendra Rai. Then 2-3 persons came out of the said

vehicle and stood behind him. Though, he tried to run away,

they caught hold of the collar of his shirt from behind. They Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

assaulted with some instrument on the back of his head.

Thereafter, they pushed him inside the vehicle and snatched

Rs.700-800 from his pocket and a mobile phone, ring, chain etc.

worth Rs.57,000/-. Thereafter, they administered an injection as

a result of which, he became unconscious. When he regained his

consciousness at about 4:00 a.m. on 05.03.2017, he found

himself on a bed in a hospital. His legs and hands were tied and

mouth was taped. In that room, two persons with arms were

sleeping on the two chowkis. He opened the door and tried to

run away, but he was intercepted again by the aforesaid

miscreants after he had covered some distance. They took him

to the same hospital. However, the doctor told them to take him

to some other destination, as the villagers had woken up.

Thereafter, they again put him in the Scorpio SUV and drove for

nearly two hours. He was taken out of the vehicle near the bank

of a river. Thereafter, he was taken on foot for an hour. He was

kept for full day on sand on the bank of river and three persons

were keeping watch over him. In the evening, he was taken to a

house in a white Alto car. The inmates of the house were not

ready to keep him there. Thereafter, he was again put in that car,

which kept on moving for the whole night on the road. In the

morning, he was shifted to a three-storey building near a railway Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

station. From there, he was again shifted to the aforesaid

hospital and was assaulted there. In the night, once again, he

was put in the Scorpio SUV, which kept on moving for almost

one and a half hour on the road. He was asked to talk to his

brother for demanding Rs. 30 Lakhs failing which, he would be

killed. Thereafter, he was taken to Jamui in the same Scorpio

SUV and was placed in a room. Three persons were keeping

watch over him. He came to know their names as Roshan, Sonu

and Vikram. They were talking among themselves that the

police are raiding various places and three persons, namely,

Birbal, Pintu Kumar and Amitabh Rai have already been

apprehended. They were also talking that the wife of Pampam

Choudhary had been arrested by the police. They asked him not

to worry as their work had already been done, they assured that

they would set him free. He stated that he was brought to the

Barauni Railway Station and was put in a train by the

miscreants, who got down from the train. He further stated that

at Barauni, he called his brother Pappu Kumar Sah on phone.

He deboarded the train and sat nearby the railway station. When

his brother came, he went together with him to the house of his

sister Rita Devi situated at the village-Murtazapur. Thereafter,

he came to the office of the Deputy Superintendent of Police Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

and narrated him about the occurrence. The Deputy

Superintendent of Police brought him to the office of the

Superintendent of Police, Samastipur, who recorded his

statement. Thereafter, he was dropped at his house by the police.

He stated that his statement was also recorded in the Court. He

identified his signature on his statement made under Section 164

CrPC, which was marked as Exhibit-6. He identified the

appellant Pinki Devi in the dock, but he could not tell her name.

He stated that he could identify her, as he had stayed in her

house for a day. He also identified the appellant Anil Kumar Rai

@ Birbal and the accused Pintu, but he could not identify the

accused Chandan Jha in the Court.

28. In cross-examination made on behalf of the

appellant Anil Kumar Rai @ Birbal, he admitted that the

appellant Anil Kumar Rai @ Birbal Rai is known to him. His

house is situated at a distance of one kilometer from his house.

He used to frequently come to his shop. On the date of

kidnapping, several persons had come to his shop. He stated that

the appellant Anil Kumar Rai @ Birbal Rai had come to his

shop for purchasing a motor and had stayed in his shop for

about 15 minutes. At that time, he was accompanied by three

others, who all were his co-villagers. He had not come in his Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

Alto car. He stated that the appellant Anil Kumar Rai @ Birbal

Rai owns an Alto car. According to him, the appellant Anil

Kumar Rai @ Birbal was involved in the crime. He admitted in

his cross-examination that on 09.03.2017, he was released at the

Barauni railway station. He also admitted that in between

05.03.2017 and 09.03.2017, the appellant Anil Kumar Rai @

Birbal had never talked to him. He also admitted that appellant

Birbal was not with him on and after 05.03.2017. He denied the

defence suggestion that he has given the name of the appellant

Anil Kumar Rai @ Birbal due to some dispute with him.

29. In the cross-examination conducted on behalf of

the appellant Pinki Devi, he stated that the averments made in

his statement under Section 164 CrPC are true. He further

admitted that his uncle was on inimical terms with his father. He

may be involved in the incident. He stated that earlier he had

threatened him that he would be kidnapped. He denied the

defence suggestion that he was never kidnapped and was hiding

in the house of his sister in order to implicate the persons with

whom he had previous enmity.

30. Jageshwar Rai (P.W.6) is the Investigating Officer

of the case. In his deposition, he has stated that he was In-charge

of Mohanpur police out-post in the year 2017. He received a Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

written report from Pappu Kumar Sah (P.W.3), which was

forwarded by him to the SHO of the Patori Police Station for the

institution of a case. He identified his writing and signature on

the forwarding of the written report which was marked as

Exhibit-2. The SHO, Patori instituted Patori P.S. Case No.94 of

2017 under Section 364/34 of the IPC on the basis of the said

report. He identified the writing and the signature of the SHO of

the Patori Police Station on the formal FIR, which has been

marked as Exhibit-3. After being appointed as the Investigating

Officer of the case, he inspected the place of occurrence,

recorded the subsequent statement of the informant and the

statement of witnesses, namely, Monoj Sah (P.W.1) and Akash

Kumar (P.W.2), raided the hideouts of the suspects and made

efforts for the recovery of the victim. He stated that he seized

the Honda motorcycle of the suspect Pintu Kumar Rai and

recorded his confessional statement. Thereafter, he seized the

Alto car bearing Registration No.BR07V-9012 belonging to the

appellant Anil Kumar Rai @ Birbal in the presence of two

witnesses and recorded his confessional statement. He arrested

the other accused persons during investigation. He stated that on

10.03.2017, he reached at the house of the informant and

recorded the statement of the victim Tribhuwan Prasad Sah @ Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

Tuntun Sah and on completion of investigation submitted the

charge-sheet in the case against the accused Pintu Rai, Jaiki

Kumar Rai, Anil Kumar Rai, Pinki Devi, Chandan Jha and

Raushan Kumar under Sections 364-A, 120-B/34 of the IPC

vide Charge-sheet No.175 of 2017 dated 31.05.2017 and kept

the investigation pending against the accused Amitabh Rai,

Mukesh Chaudhary @ Pampam Chaudhary, Kundan Jha,

Bikram Kumar, Sonu Kumar and Ranjeet. He identified his

writing and signature on the two seizure-lists, which were

marked as Exhibits-5 and 5/1 respectively.

31. In the cross-examination made on behalf of the

appellant Pinki Devi, the Investigating Officer admitted that he

could not locate the hospital where the victim was allegedly

kept in the captivity. He further admitted that he could not even

seize the Scorpio SUV used in the commission of the offence.

He stated that in the 164 Statement, the victim had stated that he

was kept in the captivity across the river for 7 days. However,

he did not go to Jamui. He admitted that the victim had

disclosed that he had gone to Barauni to the house of his relative

from Jamui, but he did not record the statement of his relative.

He also admitted that he did not verify as to how the victim

reached to his house from Barauni. He further admitted that the Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

victim had suspected the hand of his uncle, namely, Devendra

Sah in the kidnapping, but the investigation against him is still

going on. Neither he has been arrested nor his statement has

been recorded. He denied the defence suggestion that he has

implicated the appellants falsely with an oblique motive.

32. It is reiterated that on a careful consideration of the

entire evidence, we see nothing in the evidence of P. Ws 1 to 5,

8 and 9 on the basis of which the prosecution could have proved

the guilt of the two appellants.

33. In so far as the testimony of Tribhuwan Prasad Sah

@ Tuntun Sah (P.W.7) is concerned, he has admitted in his

cross-examination that the appellant Anil Kumar Rai @ Birbal

is known to him. His house is situated at a distance of one

kilometer from his house. He used to frequently visit his shop.

He admitted that in between 05.03.2017 and 09.03.2017, the

appellant Anil Kumar Rai @ Birbal had never talked to him. He

further admitted that the appellant Anil Kumar Rai @ Birbal

was not with him on or after 05.03.2017. In his evidence,

nowhere we find the description of any role of the appellant

Anil Kumar Rai in the alleged offence. The only thing which he

said in his evidence is that at one point of time, he was taken to

a house in a white Alto car and when the inmates of the house Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

refused to keep him, he was again put in that car and in the

morning, he was shifted to a three-storey building near a railway

station. In the entire evidence of the victim, the registration

number of the Alto car has not been mentioned.

34. From the deposition of Jageshwar Rai (P.W.6), the

Investigating Officer of the case and the seizure list marked as

Exhibit-5/1, it would appear that a white Alto car bearing

Registration No.BR-07V-9012 was seized on 09.03.2017 at

12:15 p.m. from outside the house of the appellant Anil Kumar

Rai @ Birbal. During investigation, neither the victim nor any

other witness has stated that it was the same vehicle in which

the victim was taken from one place to another while being in

captivity. There is no evidence that the aforesaid Alto car was

put on test identification parade. There is also no evidence to

support the case of the prosecution that the appellant Anil

Kumar Rai @ Birbal was the registered owner of the Alto car

though the Investigating Officer has stated in his deposition that

Anil Kumar Rai @ Birbal was the owner of Alto car seized

outside his house. There is no evidence in what manner the

appellant Anil Kumar Rai @ Birbal participated or connived

with the other accused persons in abducting, confining and

demanding ransom from the victim.

Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

35. Simply because a white Alto car was used in the

kidnapping of the victim and a white Alto car was seized from

outside the house of the appellant Anil Kumar Rai @ Birbal, it

cannot be inferred that the appellant was the owner of the

vehicle and the said vehicle was used in any manner in the

commission of the offence. In absence of the proof regarding the

ownership of the car as well as in absence of any link between

the car seized and the car used in the crime, no inference can be

drawn regarding the guilt of the appellant Anil Kumar Rai @

Birbal.

36. Similarly, there is complete lack of evidence as

against the appellant Pinki Devi. The only material collected

against her during trial is that the victim identified her in the

dock and stated that he had stayed in her house for a day. It is

not known as to whether he had stayed in her house on any

previous occasion or while he was in the captivity of the

criminals. The victim has not uttered a word regarding the role

of the appellant Pinki Devi in his evidence. In the absence of

any cogent evidence, she cannot be held guilty on hypothetical

presumption and wild suspicion. In a criminal case the duty of

the prosecution is to prove its case beyond reasonable doubt.

37. In view of the discussions made above, we are of Patna High Court CR. APP (DB) No.84 of 2018 dt.24-11-2021

the opinion that the evidence on the record did not support the

findings arrived at by the Trial Court. We are of the opinion that

the prosecution has miserably failed to bring home the charges

levelled against the appellants.

38. For the reasons, recorded hereinabove, the appeals

are allowed. The impugned judgment of conviction dated

13.12.2017 and the consequent order of sentence dated

14.12.2017 passed by the learned Trial Court in Sessions Trial

No.553 of 2017/467 of 2017 arising out of Patori P.S. Case

No.94 of 2017 are, accordingly, set aside.

39. The appellants, namely, Pinki Devi and Anil Kumar

Rai @ Birbal @ Anil Kumar @ Anil Ray are acquitted of the

charges levelled against them. They shall be released from the

jail forthwith unless they are required in any other case.

                                             (Ashwani Kumar Singh, J)


                                                 (Arvind Srivastava, J)

kanchan
AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          25.11.2021
Transmission Date       25.11.2021