Case: 1.The State of Bihar, 2.Birbal Choudhary @ Mukhiya Jee and Ors. Vs 1.Krishna Bihari Singh @ Krishna Singh and Jawahar Koiry @ Jawahar Singh @ Netaji, 2.The State of Bihar. High Court of Patna (India)

JudgesNavin Sinha and Dharnidhar Jha, JJ.
IssueCriminal
Judgement DateMarch 30, 2010
CourtHigh Court of Patna (India)

Judgment:

Navin Sinha, J.

  1. The appellants have been variously convicted under Sections 364A, 34, 395 & 412 of the Indian Penal Code (hereinafter referred to as I. P. C.) as discussed in detail while considering their individual cases hereinafter. The appellants in Criminal Appeal Nos. 716 and 761 of 2008 have been sentenced to death giving rise to the Death Reference. The appellants in the remaining appeals have been sentenced to undergo imprisonment for life and rigorous imprisonment for ten years. All the appellants have been acquitted of the charge under Section 120B I.P.C.

  2. The written report of Arun Kumar Mishra, P.W. 5, was lodged with the Officer Incharge, Rajpur Police Station on 21.11.2006 at 10 P.M. marked as Exhibit-1, and formal F.I.R. registered at the same time. It was sent to the Magistrate on 22.11.2006. The informant stated that he was engaged in the business of cement, iron and dealership of Hindustan Lever along with his cousin Ajay Shankar Mishra, P.W. 17. The business was spread between Buxar and Ramgarh. P.W. 17 was responsible for collection of money dues from business associates in the Ramgarh area and travelled frequently for the purpose. On 20.11.2006, P.W. 17, and the informant's cousin Raju Mishra, P.W. 20, with the driver Manoj Singh, P.W. 18, left Buxar at about 10 A.M. on his white Gypsy bearing No. BR ID 2619, for Ramgarh and other places to collect money dues. P.W. 17 collected such dues from business associates at Nuao, Rajesh Jaiswal, P.W. 2, Sandeep Kumar Jaiswal, P.W. 3, Parwej Ansari, P.W. 4, and Santosh. At Ramgarh they collected dues from Sanjay Jaiswal, P.W. 1 and others. With the total collection of about Rupees four lacs they proceeded for Buxar at about 3.30 P.M. and telephonically informed him that they did not propose to stop anywhere. A repeat conversation at 4.30 confirmed that they had reached Rampur. There was no contact thereafter and neither did they reach home. The next whole day was spent searching for them. Birendra Singh, P.W. 6, a businessman of Tiara informed him that the previous evening at about 6 P.M. the Maruti Gypsy was seen on the canal road from Rampur to Jamauli proceeding towards Jamauli driven by another. It was preceded by a black Hero Honda Motorcycle motorcycle, followed by a silver coloured Bolero with dark glasses and a Bajaj Discover Motorcycle behind it. P.W. 18 called from Sonbarsa next day at about 8.45 P.M. that P.W. 17 and P.W. 20 had been abducted by seven unknown persons on the point of arms at about 5 P.M. near Rampur village on the Hadhadva bridge after they were intercepted by motorcycles and he had been released near Sonbarsa. The informant was convinced that the abduction was for ransom.

  3. Learned Senior Counsel, Sri Kanhaiya Prasad Singh on behalf of the appellant Birbal Choudhary in Criminal Appeal No. 648 of 2008 submitted that P.W. 18 did not identify him in the first Test Identification Parade (hereinafter referred to as T. I. P.) on 11.12.2006. Only in a repeat T.I.P. held on 14.12.2006 he was identified when again in the dock the witness did not identify. Even P.W. 17, who identified accused Shyam Bihari Paswan, Angad Koeri, Krishna Bihari Singh and Jawahar Koeri did not identify him. P.W. 20, another victim denied having named the appellant during investigation. The identification of the appellant was, therefore, not confirmed and he was entitled to acquittal.

  4. Sri Yogendra Kumar, Advocate in Cr. Appeal No. 851 of 2008 for appellant Angad Koeri submitted that there is a single identification during T.I.P. by P.W. 17. He acknowledged that the defence of a scar injury over the left eye and non-compliance with requirement for T.I.P. thereunder were issues which had not been raised before the Trial Court at any stage or in the cross-examination of P.W.9, the Judicial Magistrate, who held it. The next submission was that there is no specific role attributed to him except for sitting on a motorcycle at the time of abduction. The petitioner was a member of the mob and could not be assigned the same status of an accused, who took a more active participation in the entire episode.

  5. Smt. Kanak Verma, Advocate, in Cr. Appeal No. 956 of 2008 on behalf of appellant Harivansh Ram submitted that co-accused Jawahar Choudhary named the son of the appellant, Radhey Shyam, as an accomplice and the Police referred to the appellant only in context of his status as father of Radhey Shyam and implicated him for the misdeeds of his son. He had been acquitted of the charge under Section 412 I.P.C. with regard to the Hero Honda Motorcycle recovered from his house as the same belonged to co- accused Krishna Bihari Singh. Charge was framed against the appellant under Section 368 of the Indian Penal Code but he has been convicted under Section 364 A of the same, when no such accusation was explained to him under Section 313 Cr.P.C. This vitiates his entire trial.

  6. Mr. Shakeel Ahmad Khan, Sr. Advocate in Cr. Appeal 761 of 2008 and 901 of 2008 on behalf of appellants Jawahar Koeri and Ram Briksha Koeri, Hirdya Koeri, Mangal Singh Saroj Singh submitted that P.W. 18 was the first reliable evidence for identification. He does not identify the appellants even in the dock, which rules out their participation in the occurrence. Jawahar Koeri was arrested in the market place but search and seizure of the ring of P.W. 17 was made only at the Police Station. False implication and concoction at the Police Station by implanting evidence cannot be ruled out.

  7. It was next submitted that the identification of the single storeyed white coloured house at village Simri as belonging to the appellant Jawahar Koery, and where the three victims were allegedly kept on the first night is not free from doubt. P.W. 18 rendering the first account of the occurrence, which shall take precedence over the later rendition by P.W. 17, only states that they were kept in a house at night. The house has not been shown to the Police and there is nothing to suggest that the victims were kept in the house of the appellant. Likewise, P.W. 20 does not state anything about the place of stay much less about the house of the appellant. The alleged identification of the appellant by P.W. 17 for the first time in the Court is too vague and to weak to be relied upon after over ten months of the occurrence when P.W. 18 & 20 were kept in confinement in the same house but say nothing on his identification. The alleged identification by P.W. 17 is nothing but the mere act of a site plan drawn up by the Police recording the statement of P.W. 17 without actually visiting the places of stay as allegedly disclosed.

  8. On the issue of the test identification parade of the ring belonging to P.W. 17, marked as exhibit-5/2, it was submitted that the appellant was arrested on 10.7.2007 and the T.I.P. held only on 21.7.2007. The delay makes the possibility of the ring kept at the Police Station having been shown to P.W. 17 earlier, a distinct possibility. The evidence of P.W. 14, who conducted the T.I.P. makes it apparent that the ring was displayed, P.W. 17 came first to the Police Station and P.W. 14 followed thereafter. P.W. 18 & 20 were not associated with the T.I.P. All this makes the T.I.P. invalid in law. The belated identification of the appellant in the dock on 27.11.2007, when he was present the previous day also and much after his arrest on 10.7.2007 vitiates the identification in absence of having put the appellant on T.I.P. Reliance was placed on A.I.R. 1979 Supreme Court 1761, A.I.R. 1979 Supreme Court 1127, A.I.R. 1992 Supreme Court 2100, A.I.R. 1991 Supreme Court 1468.

  9. On the recovery of the black Hero Honda motorcycle from the house of co-accused Harivansh Ram, on the disclosure made by the appellant, it was submitted that there is no material to suggest that it was actually the same motorcycle used in the alleged occurrence. Reliance was placed on A.I.R. 1976 Supreme Court 483. It was submitted that the confession of the appellant as disclosed by P.W. 19 has to be read as a whole and, therefore, any disclosure by the appellant of the place of stay during the abduction being a composite confession of the occurrence was not admissible in evidence in its entirety.

  10. The appellants Ram Briksha Koery, Hirdaya Koery, were arrested on 10.12.2006 as the were allegedly seeing running away from the house of accused Jawahar Koery, where the three victims were kept on the first night. Yet, P.W. 18, who was freed on the second day, does not identify them. Likewise, appellants Mangala Singh and Saroj Singh were witnesses to the execution of distress warrants of appellant Jawahar Koery on 5.12.2006. They were not taken into custody on that day. No evidence has transpired for their arrest five days later on 10.12.2006. There is no substantive evidence against them. There has been no T.I. P. and neither have they been identified in the dock.

  11. Learned Senior Counsel, Sri Krishna Prasad Singh appearing for the appellant, Krishna Bihari Singh @ Krishna Singh in Cr. Appeal No. 716 of 2008 submitted that the involvement of the appellant in the occurrence was limited till he parted ways with Rs. 1.50 lacs of money after five hours of the abduction which at best may make out an offense under Section 395 of the Penal Code. The appellant had no concern with the subsequent confinement of the victims or other acts of the abductors. The appellant surrendered on 28.11.2006 and was remanded to Police custody for approximately 8 days on 29.11.2006 but never put on T.I.P. even though some other accused were put on T.I.P. thereafter. There is no explanation for the same, and, therefore, the belated identification in the dock on the second day of appearance, stands vitiated. Much emphasis was laid on the statement of P.W. 17 at paragraph 33 of his evidence to submit that the witness has stated that the appellant was not present at the time of occurrence. It was obligatory on part of the...

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