Ram Bali Sahni vs The State Of Bihar
2023 Latest Caselaw 3449 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                   CRIMINAL APPEAL (DB) No.386 of 2019
  Arising Out of PS. Case No.-31 Year-2001 Thana- CHACKMEHSI District- Samastipur
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Ram Bali Sahni Son Of Sarover Sahni Resident Of Village - Baghla, P.S.- Chakmehsi, District - Samastipur.

... ... Appellant/s Versus

The State of Bihar

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s     :       Mr. Vivekanand Singh, Advocate
                                Mr. Sandeep Jha, Advocate
For the State           :       Mr. Ajay Mishra, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 02-08-2023

1. We have heard Shri Vivekanand Singh, the

learned Advocate for the appellant and Mr. Ajay Mishra, the

learned APP for the State.

2. The appellant has been convicted under Section

364 (A) and 323 of the I.P.C. vide Judgment dated

28.02.2019 passed by the learned Additional Sessions Judge

6th Samastipur in Sessions Trial No. 744 of 2007 and by order

dated 07.03.2019, he has been sentenced to undergo R.I. for

life, to pay a fine of Rs. 10,000/- and in default of payment of Patna High Court CR. APP (DB) No.386 of 2019 dt.02-08-2023

fine to further suffer imprisonment for six months for the

offence under Section 364 (A) of the I.P.C. and simple

imprisonment for one year for the offence under Section 323

of the I.P.C. He has also been convicted under Section 27 of

the Arms Act for which he has been sentenced to undergo R.I.

for 3 years. The sentences have been ordered to run

concurrently.

3. One Tajendra Verma, a 15 year old boy was

kidnapped in the night intervening between 4 th and 5th of May

2001 from his house. He is said to have come back to his

home on his own after five days. His father/Narendra Verma is

the informant of this case who has alleged that in the night

intervening between 4th and 5th of May 2001, his neighbour

Suresh Verma knocked and told that his mother is calling the

informant. Though the informant was reluctant to open the

door on the asking of the neighbour/Suresh Verma, but the

mother of the victim, who was sleeping in the house, opened

the door. It has been alleged in the F.I.R. that about 15 to 20

miscreants entered the house and caught hold of the informant

and his brother. The son of the informant, who is the victim of Patna High Court CR. APP (DB) No.386 of 2019 dt.02-08-2023

this case, hid himself behind the firewood stacked on the roof

of his uncle but two of the miscreants could locate him in the

torchlight. No sooner was the son of the informant taken into

custody by the miscreants, the informant and his brother were

let free. The victim, thereafter, was taken to some distance but

the informant did not know where exactly was his son taken.

4. On the basis of the aforenoted fardbeyan

statement of Narendra Verma, who has been examined as PW-

8 during the Trial, Chakmehsi P.S. Case No. 31 of 2001 dated

05.05.2001 was registered for investigation for offences under

Sections 364 (A), 323 and 34 of the I.P.C.

5. It appears from the records that the victim came

back on his own on 10.05.2001 when he was subjected to

medical examination and also made to give his statement

before the police. He is said to have taken the police party to

the houses where he was kept in captivity. It further appears

from the records that the house owners in whose houses the

victim was kept for some time, disclosed the name of the

appellant as the person behind the kidnapping, which led to his

arrest.

Patna High Court CR. APP (DB) No.386 of 2019 dt.02-08-2023

6. Surprisingly, no test identification parade was held

but the victim Tajendra Verma (PW-6), his mother

Chandrakala Devi (PW-4) and his sister Renu Devi (PW-5)

have disclosed during their deposition before the trial that they

identified the appellant in the torchlight, walking away with the

victim along with others.

7. Mr. Vivekanand Singh, the learned Advocate for

the appellant on this score asserts that the prosecution has

utterly failed to prove the case beyond all reasonable doubts.

He adumbrates the point by demonstrating that the victim in

his deposition before the Trial Court has not stated as to how

he learnt the name of the appellant and identified him as the

person who brought food to him and also kept a vigil while he

was in captivity. On this basis, Mr. Singh has raised the

argument that perhaps the appellant was arrested on suspicion

or on some information gathered by the police, the details of

which are not known to us and thereafter, as instructed, the

victim (PW-6) has identified him for the first time before the

Trial Court as a person who kept vigil on him during his

captivity and also offered food to him. In the same breath, Mr. Patna High Court CR. APP (DB) No.386 of 2019 dt.02-08-2023

Singh has argued that the identification of the appellant by his

mother Chandrakala Devi and sister Renu Devi cannot be

accepted as correct statements. For their statements to be

believed, the appellant after his arrest was required to be put

on test identification parade. All the witnesses referred to

above have identified him for the first time in Court. This is no

identification in the eyes of law. Apart from this, it has been

urged that the I.O. in this case has not been examined and,

therefore, none of the witnesses could be confronted with the

statements which they had made earlier before the police. This

has caused serious prejudice to the case of the appellant and,

therefore, he requires to be acquitted of the charges.

8. As opposed to the aforenoted contention, Mr. Ajay

Mishra, the learned Advocate for the State has submitted that

there was no reason for the informant or for that matter the

victim to have falsely implicated the appellant. No doubt, the

I.O. has not been examined in this case and there is no

evidence on record to trace the link to the appellant for him to

be arrested in this case but that by itself would not discredit

the prosecution version especially, when during trial, three of Patna High Court CR. APP (DB) No.386 of 2019 dt.02-08-2023

the witnesses including the victim have identified the appellant

as one of the miscreants and the person who kept vigil while

the victim was being taken from one place to other in the

captivity of the criminals. He further submits that the offence is

complete so far as the ingredients of Section 364 (A) is

concerned. The victim was kidnapped. The purpose was to

obtain ransom and the ransom letter also was received,

though, only after the victim had reached his house. The

explanation which the State has to offer about this aspect is

that victim was confined in a place where the police party had

arrived and the victim had to be taken to another place where

he was handed over to a separate group of criminals. Thus, the

explanation offered by Mr. Mishra is that the letter demanding

ransom was dispatched to the informant (PW-8) while the

victim was still in the captivity of the first set of criminals but

later, the victim was handed over to the others. Thus, the

purpose of taking away the victim was only to demand and

obtain ransom. There was no enmity or else the informant and

his brother would have been harmed. The marauders did not

even ransack the house. No sooner had they located the young Patna High Court CR. APP (DB) No.386 of 2019 dt.02-08-2023

member of the house, he was taken into captivity and taken to

unknown destination. What could have been the purpose of

doing so except for demanding ransom from the family. The

informant, Mr. Mishra further asserts, though has raised

suspicion on two of his neighbours with whom he had a

continuing dispute but the afore-noted two persons were never

investigated. The suspicion of the informant was never

accepted by the investigator. Thus, the appellant was the

person who was part of the group which had originally come to

the house of the informant and had taken away the victim.

9. We have carefully perused the documents on

record especially the deposition of the victim (PW-6) who at

the time of the occurrence was about 15 years of age. He has

supported the prosecution version in his Examination-in-Chief

by narrating what his father had to narrate in the first

information report but he has not stated anything as to how he

could learn the name of the appellant who had offered food to

him for one or two days till he was in captivity of one group of

criminals. Without learning the name of the person keeping

vigil on him, the only way in which the appellant could have Patna High Court CR. APP (DB) No.386 of 2019 dt.02-08-2023

been arrested would be some information through other source

which has not been brought forth by the prosecution.

Obviously, therefore, the police acted on some tip-off and may

be some information provided by the spy. Because of the faulty

cross-examination of the prosecution witnesses, we in our

anxiety to know as to how the name of the appellant came into

picture, have gone through the investigation reports. It appears

that nowhere the name of the appellant had transpired in the

statements of the victim or his father or the mother and sister

of the victim. What was gathered by the police after the

registration of the F.I.R. was only through the mouth of spy

and perhaps the statements made by the house owners in

whose houses the victim was kept for about 3-4 days. None of

those house owners have been examined at the trial. As noted

above, the I.O. of this case has also not been examined nor

any explanation has been offered. Thus, even if the deposition

of PW-6 is believed that he was taken away from his house on

gunpoint, assaulted on way, kept in confinement in two or

three houses and that he could come out of their clutches on

one day when one of the persons sleeping with him did not Patna High Court CR. APP (DB) No.386 of 2019 dt.02-08-2023

wake up timely in the morning, the source regarding the role

played by the appellant, therefore, remains in obscurity. Had

the appellant been arrested on suspicion and put on test

identification parade and then identified by the victim or others,

the situation would have been different. In this background, we

would be loath in giving any weightage to the deposition of the

mother and sister of the victim that they had identified the

appellant as one of the participants of the crime. They claimed

to have identified him while taking away the victim from their

house.

10. Thus on a conspectus of all these facts, it

appears that there was some attempt at kidnapping the victim,

he being a younger person of the family, perhaps the main

scion, who could have been the best bait for demand and

payment of ransom money. This explains why neither the

informant nor his brother who were also taken in captivity for

some time were harmed in any manner. The miscreants who

were in large numbers did not hurt any other member of the

family nor did they take away any valuables from the house.

Thus, the act of kidnapping has been proved from the narration Patna High Court CR. APP (DB) No.386 of 2019 dt.02-08-2023

of events given in the F.I.R. and the victim having been taken

away. Who did it, but, remains unknown. Two to three groups

of criminals appear to have taken part. If the statement of the

victim is to be believed, on one of the days of his captivity,

police party had arrived and firing was opened from both sides.

Taking the cover of such cross firing, two of the miscreants

took away the victim to another place which also remained

unknown. Most of the times, the victim claims to have been

blindfolded. If this story is believed to be true, then perhaps

his identification of the houses where he was put in captivity

also gets shrouded in doubt.

11. Be that as it may, believing his statement

that during the daytime he was kept in different houses but

was taken to some orchard or garden in the night to prevent

him from being taken away by the police, he could have sensed

the geographical whereabouts where he was kept.

12. If we accept the claim of the victim that he

took the police party to the houses where he was kept

confined, then there is some explanation for suspecting the

hands of the house owners, who may, under the threat of Patna High Court CR. APP (DB) No.386 of 2019 dt.02-08-2023

being killed, allowed their houses to be used as a safe-house

where the victim was confined. Similar is the situation with

respect to the conduct of Suresh Verma, the neighbour, who

actually acted under the threat of the criminals and knocked at

the door of the informant for him to open the door for letting

in the criminals. The informant, as we have noted above, was

a little wary of opening the door of the house in the night but

the mother of the victim unsuspectingly and unwittingly opened

the door, letting in the criminals who took away the victim.

13. The aforenoted facts have been proved by

Gangiya Devi (PW-1) and Suresh Verma (PW-9) who have

testified to the fact that under threat of the criminals, they had

knocked at the door of the informant. This though proves the

factum of kidnapping, but as we have noted earlier who did it

remains a mystery.

14. A peculiar approach has been adopted by

the prosecution/investigator in arresting the appellant and

making three of the witnesses identify him as one of the

miscreants.

Patna High Court CR. APP (DB) No.386 of 2019 dt.02-08-2023

15. We are not at all convinced that the

proposition advanced by the prosecution is correct or is

believable.

16. We, therefore, set aside the judgment and

order of conviction and acquit the appellant of all charges.

17. The appellant, we are told, is in jail. He is

directed to be released from jail forthwith, if not detained or

required in any other case.

18. Let a copy of this judgment be dispatched

to the Superintendent of the concerned jail for compliance and

record.

19. The records of this case shall be returned to

the Trial Court forthwith.

20. The appeal stands allowed.

(Ashutosh Kumar, J)

(Vipul M. Pancholi, J) Sunil/Sachin-

AFR/NAFR                        N.A.F.R.
CAV DATE
Uploading Date                05.08.2023
Transmission Date