Patna High Court
Bachcha Sahni vs The State Of Bihar on 4 January, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1021 of 2017
Arising Out of PS. Case No.-84 Year-2002 Thana- MAJHAULIA District- West Champaran
======================================================
Raju Kuswaha S/o Sri Chanraman Bhagat, resident of Village- Bahuarwa,
Babu Tola, P.S.- Maghaulia, District- West Champaran.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1120 of 2017
Arising Out of PS. Case No.-84 Year-2002 Thana- MAJHAULIA District- West Champaran
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1. Ashim Chakravarty, Son of Late Ashwini Chakravarty,
2. Pradip Sarkar, Son of Ashok Sarkar, Both residents of Village- Lal Saraiya
Colony, P.S. Majhaulia, District- West Champaran.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1180 of 2017
Arising Out of PS. Case No.-84 Year-2002 Thana- MAJHAULIA District- West Champaran
======================================================
Bachcha Sahni Son of Late Gopal Sahani, R/o Village- Jaukatiya Chhota
Malahi Tola, P.S.- Majhaulia, District- West Champaran.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1246 of 2017
Arising Out of PS. Case No.-84 Year-2002 Thana- MAJHAULIA District- West Champaran
======================================================
Police Sahani S/o Heera Sahni, R/o Village- Jaukatiya, Bara Mahali Tola,
P.S.- Majhauliya, District- West Champaran.
... ... Appellant/s
Versus
Patna High Court CR. APP (DB) No.1021 of 2017 dt.04-01-2024
2/12
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1021 of 2017)
For the Appellant/s : Mr. Sheo Jee Mishra, Advocate.
For the Respondent/s : Mr. Dilip Kumar Sinha, APP.
(In CRIMINAL APPEAL (DB) No. 1120 of 2017)
For the Appellant/s : Mr. Sheo Jee Mishra, Advocate.
For the Respondent/s : Mr. Dilip Kumar Sinha, APP.
(In CRIMINAL APPEAL (DB) No. 1180 of 2017)
For the Appellant/s : Mr. Sheo Jee Mishra, Advocate.
For the Respondent/s : Mr. Dilip Kumar Sinha, APP.
(In CRIMINAL APPEAL (DB) No. 1246 of 2017)
For the Appellant/s : Mr. Anant Kumar Mishra, Advocate.
For the Respondent/s : Mr. Dilip Kumar Sinha, APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE NANI TAGIA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 04-01-2024
1. All the four appeals have been heard
together and are being disposed of by this common
judgment.
2. We have heard Mr. Sheo Jee Mishra and Mr.
Anant Kumar Mishra, learned Advocates for the five
appellants herein in all the four appeals. The State has
been represented by Mr. Dilip Kumar Sinha, learned
A.P.P.
3. All the appellants have been convicted under
Section 364(A) of the Indian Penal Code, vide judgment
Patna High Court CR. APP (DB) No.1021 of 2017 dt.04-01-2024
dated 01.08.2017 passed by the learned Additional
Sessions Judge, Fast Track Court-II, Bettiah in Sessions
Trial No. 215 of 2003 arising out of Majhaulia P.S. Case
No. 84 of 2002. By order dated 04.08.2017 they have
been sentenced to undergo imprisonment for life, to pay
a fine of Rs.10,000/- each and in default of payment of
fine, to further suffer R.I. for six months.
4. One headmaster of a school, viz., Ram Anup
Singh (P.W. 2) is said to have been kidnapped for about
five days. The occurrence of kidnapping perhaps took
place on 17.05.2002, sometimes in forenoon.
5. The FIR of this case has been lodged by one
Awadhesh Kumar (P.W. 1), who served as a peon in
Lalsareya High School in which the victim (P.W. 2) was
the headmaster. The school was running in morning
shift. After 11:30 A.M., the victim (P.W. 2) had left for
his home on his motorcycle. Shortly thereafter, one
Sadique Mian and Nipen Singh, both of whom have not
been examined, came to the School and looked for P.W.
Patna High Court CR. APP (DB) No.1021 of 2017 dt.04-01-2024
2. They had seen the motorcycle of P.W. 2 thrown in a
ditch. They had come only to inquire regarding the
whereabouts of P.W. 2.
6. This raised some suspicion in the mind of
P.W. 1, who along with another peon viz. Sudama
Prasad (not examined) and a teacher of the school viz.
Deo Narayan Baitha (not examined) went to the place
where the motorcycle of P.W. 2 was spotted by the
aforenoted persons. At that place, P.W. 1 found personal
belongings of P.W. 2 including his denture, a pair of
sandals, a comb etc.
7. Something must have happened to P.W. 2.
8. An inquiry was made by P.W. 1 at that place.
He was made to understand that one of the criminals
had taken refuge in the house of appellant/Ashim
Chakravarty, who has now been apprehended by the
local people. P.W. 1 came to the school and
telephonically informed the police. P.W. 1, therefore,
concluded that P.W. 2, the headmaster of the school has
Patna High Court CR. APP (DB) No.1021 of 2017 dt.04-01-2024
been kidnapped for ransom.
9. This fardbeyan of P.W. 1 was registered as
Majhaulia P.S. Case No. 84 of 2002, dated 17.05.2002
for the offence under Section 364(A) of the IPC against
unknown.
10. Very surprisingly, five persons/appellants
were put on Trial without the prosecution bothering to
examine anyone of the independent persons or of
bringing on record any material which would justify their
prosecution.
11. The I.O. of this case has not been examined
and no explanation also has been offered by the
prosecution for his non-examination.
12. We do reckon that the instant case was
registered in the year 2002 and was finally disposed off
in 2017. Nonetheless, bringing forth evidence before the
Trial Court for proving guilt of the appellants was
essential.
Patna High Court CR. APP (DB) No.1021 of 2017 dt.04-01-2024
13. But for P.W. 1, who is the informant of this
case and who had no idea about the accused persons;
and the victim himself viz. P.W. 2, who though has
taken name of some of the appellants, but whose
deposition is full of inconsistencies, there is no other
material brought on record by the prosecution to prove
its case. Even the arrest-memo of the accused persons
or the recovery-memo certifying the recovery of P.W. 2
has not been brought on record.
14. P.W. 2 is said to have made his statement
under Section 164 of Cr.P.C., which statement though
has been exhibited but the Magistrate, who had recorded
the statement has not been brought to the witness-
stand.
15. So exiguous being the materials in this case
for us to make any further probe, we are left with no
option but to analyze the deposition of P.W. 2 in some
detail.
16. The story narrated by him does not inspire
Patna High Court CR. APP (DB) No.1021 of 2017 dt.04-01-2024
confidence for very many reasons. He claims to have left
for his home on his motorcycle, when he was stopped by
appellant/Police Sahani and one Ajit Sahani, who has not
been put on Trial. Later, one Mahesh Sahani (not put on
Trial), came on motorcycle and insisted upon P.W. 2 to
leave his motorcycle and go along with the accused
persons. At that time, three persons had arrived; out of
whom, one was identified by P.W. 2 as one of his
students. Whether they had came for the rescue of P.W.
2 or were part of the brigade remains unknown.
17. One unknown person, according to P.W. 2,
assaulted him by the butt of a gun, as a result of which
he had become unconscious. Despite having become
unconscious, he has narrated that he was taken on foot
to a jungle. Thereafter, P.W. 2 has talked about his
peregrination in the jungle and neighbouring areas. After
about five days, he is said to have been kept in a
dilapidated hut, in front of which there was a hand-
pump. The hand-pump was used by the members of the
Patna High Court CR. APP (DB) No.1021 of 2017 dt.04-01-2024
public. On the fifth day i.e. on the day of his release,
P.W. 2 claims to have mustered up the courage for
shouting for help when he saw many persons taking
water from the hand-pump. He threw one weapon kept
by his side out of the hut which attracted the attention
of many people. Appellant/Police Sahani is then said to
have assaulted him but by then, many persons had
arrived including the police and P.W. 2 could be taken
away from the clutches of the criminals.
18. The yarn spun by P.W. 2 does make up for
an interesting story but the cavernous wedges in such
story make it very difficult to accept. If he were
kidnapped for ransom, whatever money he was carrying
would have been taken away by the miscreants. If he
had nothing on his person, the purpose of kidnapping
would have been served only if the family members of
the victim would have been informed for paying up the
ransom.
19. There is no evidence at all regarding any
Patna High Court CR. APP (DB) No.1021 of 2017 dt.04-01-2024
such effort by the miscreants.
20. None of the family members of P.W. 2 have
been chosen to be a witness in this case. Even P.W. 2
does not at all refer to any pressure on him to get
money from his family.
21. What then was the purpose of kidnapping
him?
22. A teacher ought not be doubted without any
reason but then how did he come to know the names of
all the five persons/appellants remains an enigma to us.
23. None of these persons were either the
students of the school or were associated with P.W. 2.
One Ashim Chakravarty was named by some one in the
village when P.W. 1 was inquiring about P.W. 2. One
criminal was said to have taken refuge in the house of
appellant/Ashim Chakravarty.
24. Who was that person?
25. What happened to him?
Patna High Court CR. APP (DB) No.1021 of 2017 dt.04-01-2024
26. For the paucity of evidence available on
record and also being conscious of the remit of this
Court, we have looked through the police papers also. All
that we could gather is that the police suspected some
of the miscreants because of their bad track-record and
in the process, several persons were arrested who
confessed their guilt.
27. Hence, the implication of the appellants.
28. P.W. 2 has only talked about appellant/Police
Sahani, Ajit Sahani and Mahesh Sahani, the latter two of
whom have not been made accused or tried. P.W. 2 has
further stated that when the police arrived at the place
where he was kept confined, appellant/Raju Kuswaha
also came along with the police party.
29. These sequence of events reflect that the
names of the appellants were told to the victim (P.W. 2)
for him to confirm that the police had not played the
blind man's buff and that the case had been solved.
30. Without doubting the genuineness of P.W. 2,
Patna High Court CR. APP (DB) No.1021 of 2017 dt.04-01-2024
especially his accusation of being kidnapped and kept in
confinement for five days, a court of law would need
some evidence for believing P.W. 2.
31. As we have noted, but for the Chowkidar of
the school who had no idea except that P.W. 2 was
found missing and the victim himself, no other person
has been examined at the Trial.
32. This definitely has caused prejudice to the
case of the appellants.
33. The police appears to have been playing the
Russian Roulette with the entire criminal investigation
system.
34. Right from 2002 till the conclusion of Trial,
all the five appellants were on bail. They are in jail since
2017 post-conviction.
35. Considering the complete absence of cogent
evidence for justifying the conviction and sentence, we
are left with no option but to set aside the judgment and
Patna High Court CR. APP (DB) No.1021 of 2017 dt.04-01-2024
order of conviction by the Trial Court and acquit the
appellants of the charge levelled against them.
36. All the appeals stand allowed.
37. The appellants are directed to be released
forthwith from jail, if not required or detained in any
other case.
38. Let a copy of this judgment be dispatched to
the Superintendent of the concerned Jail forthwith for
compliance and record.
39. The records of this case be returned to the
Trial Court forthwith.
40. Interlocutory application/s, if any, also stand
disposed off accordingly.
(Ashutosh Kumar, J)
(Nani Tagia, J)
manoj/krishna-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 05.01.2024.
Transmission Date 05.01.2024.
