- (1.) As many as 14 persons were tried and convicted by the Additional Sessions Judge (Fast Track Court No. 4), Kaimur in the State of Bihar for offences punishable Under Sections 364, 302, 201 read with 34, Indian Penal Code and 27 of the Arms Act. For the offence of murder all of them were sentenced to undergo imprisonment for life whereas for the offence of abduction punishable Under Section 364, Indian Penal Code they were sentenced to undergo rigorous imprisonment for a period of 10 years each. They were further sentenced to undergo rigorous imprisonment for a period of seven years each for the offence punishable Under Section 201, Indian Penal Code. No separate sentence was however awarded to them for the offence punishable Under Section 27 of the Arms Act. Aggrieved by their conviction and the sentence awarded to them, the convicts appealed to the High Court of Judicature at Patna. During the pendency of the said appeal Shankar Chaudhary one of the convicts passed away. The High Court has by the judgment and order impugned in this appeal acquitted the remaining accused Respondents herein giving them the benefit of doubt. The present appeal by special leave calls in question the correctness of the said order. It is common ground that during the pendency of this appeal Deomuni Chaudhary one of the Respondents also passed away on 05.09.2013. The appeal qua the said Respondent, thus abates, and is dismissed accordingly.
(2.) The case of the prosecution in a nutshell is that the Appellant herein who happens to be the first informant left his village Bankey Bhahua along with one Rajendra Prasad Rai a co-villager examined as PW 4 at the trial for Nuaon Bazar which happened to be a small market place around six kilometers from Bankey Bhahua. They met Uday Narayan Rai the deceased who was returning from Bankey Bhahua the District headquarters after attending a certain court case. The prosecution version is that Mukti Narayan Rai-the first informant and Appellant herein and Rajendra Prasad Rai PW 4 together started Back from Nuaon Bazar towards Bankey Bhahua. At about 6.30 p.m. in the evening when they reached near the western side of the village and were in the neighbourhood of the land owned by one Narendra Rai they found three persons sitting on the embankment the canal who suddenly got up and captured Uday Narayan Rai. The prosecution case is that out of the said three persons the Appellant identified Shyamraj Chaudhary and Banshidhar Chaudhary Respondents in this appeal. It is further alleged that 15 to 20 other persons came out from a nearby hut, all of them armed with rifles and guns. Deoraj Chaudhary was one of them who exhorted others to kill the deceased and his family. It is also alleged that the Respondents carried away the victim while the informant and his companion somehow managed to run away on hearing the threatened assault. Hue and cry raised for help had no effect as no one came near to rescue the victim.
(3.) The further case of the prosecution is that on 10.08.1989 a first information report about the above incident was lodged at 4.30 p.m. for an offence punishable Under Section 364 Indian Penal Code and a copy sent to the jurisdictional Additional Chief Judicial Magistrate, which was seen by the court concerned on 12.09.1989. With the discovery of the dead body of the deceased, Section 302 of the Indian Penal Code was also added besides Section 201 of the Code. Investigation commenced on the above report led to the arrest of the Respondents and eventually a charge-sheet against all of them before the committal court concerned. The Respondents pleaded not guilty and claimed a trial. The prosecution examined as many as 7 witnesses in support of its case including the Appellant-the first informant who appeared as PW 6 while Rajendra Prasad Rai appeared as PW 4. The Trial Court eventually came to the conclusion that the prosecution had proved its case against the Respondents and accordingly declared them guilty. That view has been reversed by the High Court in appeal who, upon a re-appraisal of the evidence available on record, has recorded the following findings: I. That the motive alleged by the prosecution for the commission of the offence was not established by the evidence on record. The High Court held that although according to the prosecution there was a certain litigation between the residents of Bankey Bhahua on the one hand and those of Kaimur on the other yet no reliable evidence regarding the nature of the dispute was adduced at the trial. The High Court also held that the evidence suggested that there were two separate irrigation channels for the two villages and it was unlikely that any dispute about sharing of irrigation facility between the residents of the two villages could arise. The High Court also noticed that some of the accused were residents of the village to which the deceased belonged and therefore it was improbable that a dispute regarding the irrigation channel between two villages could have possibly provided a motive for the commission of the offence. II. That there was no evidence to suggest that the Appellant-first informant and Rajendra Prasad Rai PW 4 had raised any alarm to attract the attention of others when the abduction of the victim took place. More importantly the High Court found it wholly improbable for the two eye witnesses to go into hiding without informing the family members of the deceased about the incident till the morning of 10th August, 1989 when the statement of the informant was allegedly recorded. The fact that the Appellant-first informant had gone into hiding just about 350 yards from the place of occurrence in close proximity to the village which he could access to inform the members of the victim family and other villagers rendered the version of the witnesses suspect in the opinion of the High Court. III. That while the first informant-Appellant herein claimed to have given a statement at Chavani, the police version was that the statement was recorded at village Bankey Bhahua. This contradiction, according to the High Court, clearly rendered suspect the version of the Appellant that he had gone into hiding after the incident. The High Court also noticed that there was considerable delay in the lodging of the FIR with the police even when the police station was just about 16 kms. from the place of occurrence. The High Court held that since PWs 4 and 6 were together and had escaped the attack there was no reason why they could not lodge a report with the police immediately to make an attempt to rescue the deceased. The fact that they did not do so rendered suspect their version that they were witnesses to the act of abduction. IV. That there was inordinate delay in the dispatch of the FIR registered on 10.08.1989. It's delayed arrival in the court of the Jurisdictional Magistrate only on 12.08.1989 was not according to the High Court satisfactorily explained. V. That out of the accused-Respondents herein atleast five were not named in the FIR. VI. That no acceptable explanation was forthcoming from the prosecution as to its failure to examine Rajendra Prasad Rai who had been named in the FIR as a witness to the occurrence.;