Patna High Court
Suresh Sahni vs The State Of Bihar on 16 January, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.589 of 2016
Arising Out of PS. Case No.-216 Year-2014 Thana- SARAIYA District- Muzaffarpur
======================================================
Tarkeshwar Ram S/o Dhurendhar Ram Resident of Village- Saraiya Basant
PS Taraiya District Saran Chapra.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 785 of 2016
Arising Out of PS. Case No.-216 Year-2014 Thana- SARAIYA District- Muzaffarpur
======================================================
Suresh Sahni Son of Late Sonelal Sahni resident of village - Chakki,
Sohagpur, P.S. Paroo, District - Muzaffarpur
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 589 of 2016)
For the Appellant : Mr. Radha Mohan Singh, Advocate
Mr. Satyam Anand, Advocate
For the State : Mr. Sujit Kumar Singh, APP
(In CRIMINAL APPEAL (DB) No. 785 of 2016)
For the Appellant : Mr. Aaruni Singh, Advocate
Mr. Sandip Kumar Gautam, Advocate
For the State : Mr. Satya Narayan Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE RUDRA PRAKASH MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 16-01-2024
Both these appeals are filed under Section 374(2)
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
of the Code of Criminal Procedure, 1973 (hereinafter referred to
as 'the Code') by appellants/convicts against judgment of
conviction and order of sentence dated 20.05.2016, passed by
learned Additional District & Sessions Judge-11, Muzaffarpur in
Sessions Trial No.934/14, arising out of Saraiya P.S. Case
No.216/14 by which both the appellants have been convicted
under Section 364A read with 34 of the Indian Penal Code and
sentenced to undergo imprisonment for life and fine of
Rs.25,000/- each and, in default of payment of fine, the
appellants shall suffer RI for one year.
2. The prosecution case, in brief, is as under:
Informant, Mantu Singh has given a written
complaint to the SHO of Saraiya Police Station stating therein
that on 17.06.2014 between 12:00 - 01:00 in the night, his son,
aged about 7 years, was kidnapped when he was sleeping with
his grandmother. When the mother of the informant woke up at
01:00 in the night, she did not find her grandson and she
informed the informant and they started searching for the boy.
The informant alongwith villagers also started to make search
for the boy and informed the police. The police came and they
also tried to search the victim boy.
3. Heard Mr. Radha Mohan Singh, learned counsel
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
for the appellant in Criminal Appeal (DB) No.589 of 2016, Mr.
Aaruni Singh, learned counsel for the appellant in Criminal
Appeal (DB) No.785 of 2016, and Mr. Sujit Kumar Singh and
Mr. Satya Narayan Prasad, learned APP's. for the respondent-
State in both the appeals.
4. Learned Advocates appearing for the appellants
would mainly submit that in the FIR lodged by the father of the
victim, PW-1, he has not given the names of the present
appellants. However, on the basis of the so called confessional
statement of one of the accused, another accused was arrested
and it is alleged that the victim boy was recovered from the hut
of accused Tarkeshwar Ram. It is submitted that with a view to
prove the relevant and important aspect, it was the duty of the
prosecution to examine the Investigating Officer and the victim
boy. However, in the present case, the prosecution did not
examine both the aforesaid important witnesses, as a result of
which the appellants/accused have lost opportunity to cross-
examine the aforesaid important witnesses. It is further
submitted that while passing the impugned order of conviction
against the appellants, the Trial Court has relied upon the case
diary and the reference has also been made with regard to CDR,
however, CDR is not exhibited. Further, the Trial Court has
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
committed an error while referring the case diary and that too
when the Investigating Officer has not been examined by the
prosecution. Learned Advocates further submit that the Trial
Court has also simply placed reliance upon the statement of the
victim which was recorded under Section 164 of the Code.
However, thereafter the boy was not presented for the purpose
of cross-examination before the Trial Court.
5. The learned Advocates would further submit that
even while recording the statement under Section 164 of the
Code, the concerned Magistrate has also not put question to the
victim with a view to ascertain whether the said victim boy is in
a position to narrate the correct facts or not. It is further
submitted that the victim was found, as per the case of the
prosecution, on 22.06.2014, however, the informant and the
other relatives met the said victim boy in the police station and
thereafter the boy was taken to the concerned Magistrate after a
period of two days, i.e., on 24.06.2014 for the purpose of
recording his statement under Section 164 of the Code and,
therefore, there are all chances that during the period of two
days, the informant and other relatives may have tutored the
said victim. It is further contended that appellant Suresh Sahni
has falsely been implicated as he was a tenant and there was rent
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
dispute between the informant and the said accused. Learned
counsel, therefore, urged that when the prosecution has failed to
prove the case against the appellants/convicts beyond
reasonable doubt, the impugned order passed by the Trial Court
be quashed and set aside and thereby both these appellants be
acquitted.
6. Learned Advocates for the appellants have
placed reliance upon the following decisions:-
(i) Narain & Ors. v. State of Punjab, reported in
1958 SCC OnLine SC 47
(ii) State of U.P. & Anr. v. Jaggo Alias Jagdish &
Ors., reported in (1971) 2 SCC 42
(iii) Munna Lal v. State of Uttar Pradesh and
another analogous case, reported in 2023 SCC OnLine SC 80
(iv) Lahu Kamlakar Patil & Anr. v. State of
Maharashtra, reported in (2013) 6 SCC 417
7. On the other hand, learned APP has vehemently
opposed both these appeals. It is submitted by learned APP that
the victim himself has stated before the Magistrate while giving
his statement under Section 164 of the Code that the accused
Suresh Sahni and 4-5 other persons kidnapped him during night
hours when he was sleeping with his grandmother. There was no
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
reason to disbelieve the version given by the victim himself. It is
further submitted that telephone call was made to the informant
and demand of Rs.10,00,000/- was also made with a threat that
they would kill the son of the informant. Thus, the prosecution
has proved the ingredients of the offence punishable under
Section 364A of the Indian Penal Code and, therefore, the Trial
Court has not committed any error while passing the impugned
order. It is further submitted that merely because the
Investigating Officer has not been examined by the prosecution,
the benefit of the same may not be given to the accused.
Learned APP has also referred the reasoning recorded by the
Trial Court and thereafter submitted that there is ample material
in the case diary which is referred by the Trial Court against the
appellants/convicts. The Trial Court has also referred CDR
which was collected by the Investigating Officer during the
course of investigation on the basis of which Suresh Sahni was
apprehended and thereafter, on the basis of his confessional
statement, the boy was, in fact, recovered from the hut of
Tarkeshwar Ram. The boy was taken to the Magistrate for
recording his statement where the victim boy has specifically
taken the name of Suresh Sahni. Learned APP, therefore, urged
that when the prosecution has proved the case against both these
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
appellants/convicts beyond reasonable doubt, this Court may not
interfere with the impugned order.
8. We have considered the submissions canvassed
by learned counsel for the parties. We have also gone through
the materials placed on record, including the deposition given
by the prosecution witnesses. From the evidence led by the
prosecution, it would emerge that the informant, who is the
father of the victim boy, has lodged the FIR against unknown
persons by alleging that his son was kidnapped during night
hours of 17.06.2014 and thereafter his son, aged about 7 years,
is missing. It is further revealed from the record that after
registration of the FIR, the Investigating Officer commenced the
investigation and during the course of investigation, he has
recorded the statement of the witnesses. It is the case of the
prosecution that when the further statement of the informant
was recorded, he had stated that on his mobile phone, a call was
received by him wherein the concerned caller demanded
Rs.10,00,000/- as Rangdari (ransom). It is further the case of the
prosecution that threat was also given to the informant that if the
amount demanded is not paid, his son would be killed. It
appears that thereafter the Investigating Officer has further
carried out the investigation and it is the case of the prosecution
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
that during the course of the said investigation, the Investigating
Officer has apprehended the accused Suresh Sahni and on the
basis of his confessional statement, one mobile phone was
recovered from his house. Prior to that, on the basis of the CDR,
the Investigating Officer reached to accused Suresh Sahni.
Thereafter, on the basis of the confessional statement, it is
alleged that boy was recovered from the hut of Tarkeshwar Ram
on 22.06.2014 and thereafter he was taken to the Magistrate for
recording his statement under Section 164 of the Code.
9. However, if the evidence led by the prosecution
is scrutinized/appreciated, it is revealed that PW-1, Mantu
Singh, informant, who is the father of the victim boy, has stated
in his deposition that on 17.06.2017 at about 12:00 to 01:00
during night hours, his son was sleeping with mother of the said
witness. However, thereafter the boy was not found and,
therefore, they tried to search the boy on the next day morning
and thereafter FIR was lodged. It is further stated by the said
witness that on 18.06.2014 one call was received by him on his
mobile No. 9631433457 and the concerned person demanded
Rs.10,00,000/- by way of Rangdari (ransom) and threat was
also given that if the amount is not paid, his son would be killed.
Therefore, he has provided the said telephone number to the
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
police. Thereafter during the search, his son was recovered from
the house of Tarkeshwar Ram and Tarkeshwar Ram was arrested
by the police. During the said search, one Suresh Sahni was also
arrested.
9.1 During cross-examination, the said witness
stated that during the search, he has not accompanied the police.
He has also not seen from where his son was recovered by the
police. The voice of the person who has demanded Rangdari on
telephone, was not a voice of any of his related person. Before
the boy was produced by the police before the Court for the
purpose of recording his statement, he met his son in the police
station and a number of persons also visited the police station
when his son was in the police station and in the police station
all such persons had a talk with the boy.
10. PW-2, Hemanti Devi, grandmother of the
victim boy, has deposed that she was sleeping with her
grandson, namely, Sunny Raj and when she woke up between
12:00 - 01:00 in the night, she did not find her grandson. She
informed her son and started making search for the boy. This
witness also deposed in her examination-in-chief that on the
next day, his son received a phone call and the caller had
demanded Rs.10,00,000/- as Rangdari (ransom). It is also
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
deposed that thereafter, on the basis of the phone call, the police
started investigation and after five days, the police recovered her
grandson from a hut situated at Saraiya Diyar. This witness also
deposed in her examination-in-chief that the accused threatened
to kill her grandson.
10.1. PW-2 in her cross-examination stated that
when her grandson was kidnapped, she was sleeping and who
kidnapped her grandson, she could not see. It is also stated that
she did not see the hut from where her grandson was recovered.
After kidnapping of the victim boy, her family members started
making search for the boy. This witness further stated in her
cross-examination that she met her grandson in the police
station after his recovery. Demand of Rangdari was made
through phone call on the mobile phone of her son. The accused
threatened that if Rs.10,00,000/- is not paid, the boy would be
killed. The police enquired from her and she informed the police
about the demand of Rangdari. This witness further states in her
cross-examination that it is not true that her grandson was weak
in study and he ran away from home.
11. PW-3, Devendra Singh has stated in his
examination-in-chief that occurrence took place on 17.06.2014
in between 12:00 - 01:00 in the night. He was sleeping at that
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
time. He woke up on hulla and knew that Sunny Ram was
kidnapped. Police came after receiving information and started
making search for the child. This witness further deposed that
on the next day, Mantu Singh, father of the victim boy, received
a phone call and the caller demanded Rs.10,00,000/- as
Rangdari and threat was also given that if the said amount is not
given, the boy would be killed. Police recovered the victim boy
on 22nd. The accused were apprehended.
11.1. PW-3 in his cross-examination stated that
Mantu Singh is his cousin and Suresh Sahni was his tenant. He
did not see how the victim boy was kidnapped. He did not know
accused Tarkeshwar Ram from before. After recovery of the
boy, the police brought him to the Saraiya Police Station and
thereafter they brought the boy. It is further stated by this
witness in his cross-examination that house of Tarkeshwar Ram
is situated under the jurisdiction of Saraiya Police Station.
12. PW-4, Sunaina Devi also in paragraph-3 and 4
of her examination-in-chief supported the factum of kidnapping
of the boy and demand of Rangdari (ransom). This witness also
supports the factum of recovery of the victim boy after a period
of five days.
13. PW-5, Sanjeev Kumar Singh was working as
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
Judicial Magistrate, 1st Class, Muzaffarpur at the relevant time.
He has stated that the kidnapped boy Sunny Raj was produced
before him for the purpose of recording his statement. He had
recorded the statement of kidnapped boy Sunny Raj which was
read over to him and thereafter it was signed.
13.1 During cross-examination, he has stated that
age of the victim boy was 7 years. The boy was also
understanding the question put to him.
14. PW-6, Sandip Kumar is the Investigating
Officer who had taken over the investigation on 24.08.2014. The
said witness has filed charge-sheet against both the accused.
14.1 During cross-examination, said witness has
stated that the formal FIR was not in his handwriting. He had
also not visited the place of occurrence. The same was made by
his predecessor. The place from where the boy was recovered
was also not visited by him.
15. At this stage, it is also pertinent to note that the
prosecution has also produced the statement of victim which
was recorded under Section 164 of the Code wherein the victim
boy stated that he was sleeping with his grandmother. At that
time, Suresh Sahni and 4-5 others came there and took him to
Saraiya Diyar. He was kept in a hut for five days. The
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
concerned persons were also providing food to him. After 4-5
days, police came and took him to the police station and today
he has come with his mother and father.
16. Thus, we have re-appreciated the entire
evidence produced by the prosecution before the Trial Court. As
observed hereinabove, the informant gave the FIR with regard
to the occurrence of kidnapping of his son who was kidnapped
on 17.06.2014 during night hours. In the said FIR, he has not
disclosed the name of any of the accused. From the evidence of
PW-1, it is revealed that he received the telephone call on his
mobile number wherein the concerned caller demanded
Rs.10,00,000/- by way of Rangdari (ransom). Threat was also
given that if the said amount is not given, his son would be
killed. However, it is pertinent to note that from which mobile
phone the informant has received the call, is not reflected from
the record though the Trial Court has observed that one mobile
phone was recovered from the house of Suresh Sahni and he
was arrested on the basis of the CDR. It is further relevant to
note that copy of the said CDR has not been produced by the
prosecution before the Trial Court. The Trial Court has also
referred about the case diary and the confessional statement of
accused Suresh Sahni. The prosecution has failed to examine the
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
Investigating Officer who has carried out the investigation
during the course of which, he had collected the so called
evidence in the form of CDR and also recorded the confessional
statement of accused Suresh Sahni. It is also not in dispute that
nobody has seen that the victim boy was recovered from the hut
of Tarkeshwar Ram. It is further revealed that the prosecution
has examined Sandip Kumar as PW-6, the Investigating Officer
who had taken over the investigation in August, 2014. However,
it is relevant to note that the said witness has only filed charge-
sheet against the concerned accused persons and during cross-
examination he has specifically stated that he has not examined
the place of occurrence or the place from where the victim boy
was recovered. It is not in dispute that the prosecution has also
not examined the victim boy. The deposition of the victim boy is
relevant in the facts of the present case because he is the
important witness of the prosecution. Thus, when the
prosecution has failed to examine the important witness, like,
the victim boy and the Investigating Officer, the defence has lost
the opportunity to cross-examine the aforesaid two important
witnesses.
17. At this stage, we would like to refer the
decision rendered by the Hon'ble Supreme Court in the case of
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
Narain & Ors. (supra) wherein the Hon'ble Supreme Court
has discussed about "material witness". The Hon'ble Supreme
Court has observed in Paragraph-13 as under:
"13. The question then is, was
Raghbir a material witness? It is an accepted rule
as stated by the Judicial Committee in Stephen
Seneviratne v. King2 that "witnesses essential to the
unfolding of the narrative on which the prosecution
is based, must, of course, be called by the
prosecution". It will be seen that the test whether a
witness is material for the present purpose is not
whether he would have given evidence in support of
the defence. The test is whether he is a witness
"essential to the unfolding of the narrative on which
the prosecution is based". Whether a witness is so
essential or not would depend on whether he could
speak to any part of the prosecution case or whether
the evidence led disclosed that he was so situated
that he would have been able to give evidence of the
facts on which the prosecution relied. It is not
however that the prosecution is bound to call all
witnesses who may have seen the occurrence and so
duplicate the evidence. But apart from this, the
prosecution should call all material witnesses."
17.1 From the aforesaid observation made by the
Hon'ble Supreme Court, it can be said that witnesses essential
to the unfolding of the narrative on which the prosecution is
based must be called by the prosecution. The test is whether he
is a witness essential to the unfolding of the narrative on which
the prosecution is based.
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
18. In the case of State of U.P. & Anr. v. Jaggo
Alias Jagdish & Ors. (supra), the Hon'ble Supreme Court
observed in Paragraph-15 as under:
"15. This Court in Habeeb
Mohammad case referred to the observations of
Jenkins, C.J., in Ram Ranjan Roy v. Emperor [ILR
42 Cal 422 : 19 CWN 28 : 27 IC 554] that the
purpose of a criminal trial is not to support at all
costs a theory but to investigate the offence and to
determine the guilt or innocence of the accused and
the duty of a Public Prosecutor is to represent the
administration of justice so that the testimony of all
the available eyewitnesses should be before the
court. Lord Roche in Stephen
Senivaratne v. King [AIR 1936 PC 289 : 39 Bom LR
1 : 164 IC 321] referred to the observations of
Jenkins, C.J. and said that the witnesses essential to
the unfolding of the narrative on which the
prosecution is based must be called by the
prosecution whether the effect of their testimony is
for or against the case for the prosecution. That is
why this Court in Habeeb Mohammad case said that
the absence of an eyewitness in the circumstances of
the case might affect a fair trial. On behalf of the
appellant it was said that Ramesh Chand was won
over and therefore the prosecution could not call
Ramesh. The High Court rightly said that the mere
presentation of an application to the effect that a
witness had been won over was not conclusive of the
question that the witness had been won over. In such
a case Ramesh could have been produced for cross-
examination by the accused. That would have
elicited the correct facts. If Ramesh were an
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
eyewitness the accused were entitled to test his
evidence particularly when Lalu was alleged to be
talking with Ramesh at the time of the occurrence."
18.1 From the aforesaid observation made by the
Hon'ble Supreme Court, it can be said that a witness is to be
produced for cross-examination by the accused. In the present
case, the victim boy, who is the material witness of the
prosecution, was not presented before the Court for the purpose
of cross-examination and thereby the defence has lost the
opportunity to cross-examine.
19. In the case of Munna Lal (supra), the Hon'ble
Supreme Court observed in Paragraph-39 as under:
"39. Secondly, though PW-4 is said
to have reached the place of occurrence at 1.30 p.m.
on 5th September, 1985 and recovered a bullet in the
blood oozing out from the injury at the hip of the
dead body, no effort worthy of consideration
appears to have been made to seize the weapons by
which the murderous attack was launched. It is true
that mere failure/neglect to effect seizure of the
weapon(s) cannot be the sole reason for discarding
the prosecution case but the same assumes
importance on the face of the oral testimony of the
so-called eyewitnesses, i.e., PW-2 and PW-3, not
being found by this Court to be wholly reliable. The
missing links could have been provided by the
Investigating Officer who, again, did not enter the
witness box. Whether or not non-examination of a
witness has caused prejudice to the defence is
essentially a question of fact and an inference is
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
required to be drawn having regard to the facts and
circumstances obtaining in each case. The reason
why the Investigating Officer could not depose as a
witness, as told by PW-4, is that he had been sent
for training. It was not shown that the Investigating
Officer under no circumstances could have left the
course for recording of his deposition in the trial
court. It is worthy of being noted that neither the
trial court nor the High Court considered the issue
of non-examination of the Investigating Officer. In
the facts of the present case, particularly
conspicuous gaps in the prosecution case and the
evidence of PW-2 and PW-3 not being wholly
reliable, this Court holds the present case as one
where examination of the Investigating Officer was
vital since he could have adduced the expected
evidence. His non-examination creates a material
lacuna in the effort of the prosecution to nail the
appellants, thereby creating reasonable doubt in the
prosecution case."
19.1 From the aforesaid observation made by the
Hon'ble Supreme Court, it is revealed that in the said case, the
Investigating Officer was not examined though his evidence was
necessary as a material witness and, therefore, the Hon'ble
Supreme Court has observed that his non-examination creates a
material lacuna in the effort of the prosecution to nail the
appellants, thereby creating reasonable doubt in the case of the
prosecution.
20. In the case of Lahu Kamlakar Patil (supra),
the Hon'ble Supreme Court has observed in Paragraph-18 as
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
under:
"18. Keeping in view the aforesaid
position of law, the testimony of PW 1 has to be
appreciated. He has admitted his signature in the
FIR but has given the excuse that it was taken on a
blank paper. The same could have been clarified by
the investigating officer, but for some reason, the
investigating officer has not been examined by the
prosecution. It is an accepted principle that non-
examination of the investigating officer is not fatal
to the prosecution case. In Behari Prasad v. State of
Bihar [(1996) 2 SCC 317 : 1996 SCC (Cri) 271] ,
this Court has stated that non-examination of the
investigating officer is not fatal to the prosecution
case, especially, when no prejudice is likely to be
suffered by the accused. In Bahadur Naik v. State of
Bihar [(2000) 9 SCC 153 : 2000 SCC (Cri) 1186] ,
it has been opined that when no material
contradictions have been brought out, then non-
examination of the investigating officer as a witness
for the prosecution is of no consequence and under
such circumstances, no prejudice is caused to the
accused. It is worthy to note that neither the trial
Judge nor the High Court has delved into the issue
of non-examination of the investigating officer. On a
perusal of the entire material brought on record, we
find that no explanation has been offered. The
present case is one where we are inclined to think so
especially when the informant has stated that the
signature was taken while he was in a drunken state,
the panch witness had turned hostile and some of
the evidence adduced in the court did not find place
in the statement recorded under Section 161 of the
Code. Thus, this Court in Arvind Singh v. State of
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
Bihar [(2001) 6 SCC 407 : 2001 SCC (Cri)
1148] , Rattanlal v. State of J&K [(2007) 13 SCC 18
: (2009) 2 SCC (Cri) 349] and Ravishwar
Manjhi v. State of Jharkhand [(2008) 16 SCC 561 :
(2010) 4 SCC (Cri) 50] , has explained certain
circumstances where the examination of
investigating officer becomes vital. We are disposed
to think that the present case is one where the
investigating officer should have been examined and
his non-examination creates a lacuna in the case of
the prosecution."
20.1 From the aforesaid observation, it can be said
that non-examination of the Investigating Officer is not fatal to
the prosecution case, especially, when no prejudice is likely to
be suffered by the accused. However, in a given circumstance
where the examination of Investigating Officer becomes vital, it
is the duty of the prosecution to examine the Investigating
Officer and in such cases his non-examination creates a lacuna
in the case of the prosecution.
21. Keeping in view the aforesaid decisions
rendered by the Hon'ble Supreme Court, if the facts of the
present case, as discussed hereinabove, are carefully examined,
we are of the view that though the prosecution has produced the
witnesses, like, informant who is father of the victim,
grandmother of the victim, cousin of the informant and wife of
the cousin of the informant, none of the said witnesses have
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
given the name of the present appellants/convicts. On the basis
of the call details of the mobile phone of the informant, the
accused Suresh Sahni was apprehended by the Investigating
Officer. It is alleged that one mobile phone was recovered from
the house of Suresh Sahni and on his confessional statement boy
was recovered from the house of co-accused/co-convict
Tarkeshwar Ram. However, it is relevant to note that even the
prosecution has not examined the Investigating Officer, the call
details, i.e., CDR is not brought on record and the said
document has not been duly exhibited. Even confessional
statement was also not brought before the Court on the basis of
which co-convict Tarkeshwar Ram has been arrested and from
whose hut it is alleged that the victim boy was recovered. Thus,
in the facts and circumstances of the present case, by non-
examination of the Investigating Officer, the defence has lost the
opportunity to cross-examine the said witness, i.e., the
Investigating Officer and thereby there is lacuna in the case of
the prosecution. It is important to note once again that the
prosecution has also not examined the victim boy though his
statement recorded under Section 164 of the Code was relied
upon by the learned Trial Court while recording the conviction
of the appellants herein.
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
22. Thus, in the aforesaid facts and circumstances
of the present case, we are of the view that the prosecution has
failed to prove beyond reasonable doubt that the appellants have
kidnapped the victim boy from the house of the informant and
they demanded Rs.10,00,000/- by way of Rangdari (ransom)
and gave threat to kill the boy if the said amount is not given.
23. It is pertinent to note here that recovery of the
victim boy from the hut of Tarkeshwar Ram is also not duly
proved. Though the statement of the victim boy under Section
164 of the Code was recorded by the Magistrate, it is relevant to
note that his statement was recorded by the Magistrate after a
period of two days from the date of his recovery and when he
was produced before the Magistrate for recording his statement,
he came alongwith his parents and not with the police.
24. Thus, looking to the facts and circumstances of
the present case, we are of the view that prosecution has failed
to prove the case against the appellants beyond reasonable
doubt. We have also gone through the reasoning recorded by the
learned Trial Court and we are of the view that the Trial Court
has simply relied upon the CDR, confessional statement
recorded by the Investigating Officer and the case diary.
However, as observed hereinabove, CDR has not been duly
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
proved. The Investigating Officer who has collected the said
CDR and confessional statement is also not examined by the
prosecution and case diary cannot be simply relied upon in
absence of any other cogent evidence. Hence, we are of the view
that the Trial Court has committed grave error while relying
upon the aforesaid documents. Moreover, it does not reveal
from the statement of the victim boy recorded under Section 164
of the Code as to how he could identify appellant, Suresh Sahni
during night hours. It also does not reveal from the record that
the victim boy was recovered from the hut of Tarkeshwar Ram
as the Investigating Officer has not been examined in this case.
25. Hence, for the reasons recorded above, both
these appeals stand allowed. The impugned judgment of
conviction and order of sentence dated 20.05.2016 passed by
learned Additional District & Sessions Judge-11, Muzaffarpur in
connection with Sessions Trial No.934/14, arising out of Saraiya
P.S. Case No.216 of 2014 is quashed and set aside. The
appellant, namely, Tarkeshwar Ram in Criminal Appeal (DB)
No.589 of 2016 and appellant, namely, Suresh Sahni in Criminal
Appeal (DB) No.785 of 2016 are acquitted of the charges
levelled against them by the learned trial court. Since both the
appellants, named above, are in jail, they are directed to be
Patna High Court CR. APP (DB) No.589 of 2016 dt.16-01-2024
released forthwith, if their presence is not required in any other
case.
(Vipul M. Pancholi, J.)
( Rudra Prakash Mishra, J.)
Sanjay/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 23.01.2024
Transmission Date 23.01.2024
