NEPAL SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) SIX appellants have preferred this appeal against their conviction for the offences under Sections 147, 148, 323/149 and 452/149 of the Indian Penal Code and sentenced to undergo respectively rigorous imprisonment for one year each under Sections 147 and 148 of the Indian Penal Code and simple imprisonment for six months under Section 323/149 and rigorous imprisonment for three years under Section 452/149 of the Indian Penal Code with a fine of Rs.1,000/-, in default to further undergo simple imprisonment for three months and appellants no.1 and 2, Nepal Singh and his son Bikesh Kumar Singh, further stand convicted for the offence under Section 365 of the Indian Penal Code and sentenced to pay fine of Rs.2,000/- in default to undergo simple imprisonment for three months. However, all the sentences are to run concurrently awarded on 05th March, 2010, by Additional Sessions Judge, Fast Tract Court no.V, Ara in Sessions Trial no. 786 of 2007 arising out of Udwant Nagar P.S. Case no.43 of 2004.

(2.) THE prosecution case, as revealed from Exhibit-4, fard-e-bayan of Sarvanand Singh recorded at 15.30 hours at Udwantnagar Police Station by P.W. 6, R.D. Singh, of Udwantnagar Police Station is that in the previous evening at about 7.30 P.M. his brothers Nepal Singh, Krishna Singh, Kaharwa Singh, Bhagwan Singh and Sunil Singh with whom he has previous land dispute and obtained a decree from Court whereon all his brothers besides Bikesh Kumar Singh, Rakesh Kumar Singh, sons of Nepal Singh, and Raju Singh son of Krishna Singh, claim share inspite of a clear decree of Court in his favour. All arrived at previous night at 7.30 P.M. on 9.03.2004. Nepal Singh had pistol, Bikesh Kumar Singh had Dabia, Sunil Singh Baisakhi, Krishna Singh, Bhagwan Singh, Kaharwa Singh Rakesh Singh and Raju Singh with Lathi, entered into his house and started telling he will not part with the land so kill him and loot every thing. Bikesh Singh gave one Dab blow on his neck but inspite of attempt to save injury was caused on neck, rest with their Lathi and Nepal Singh with butt of pistol started assaulting the informant causing injuries on left arm, left elbow and palm and right knee. He further caused fracture in his right hand. Informant fell down. His wife, Sushila Devi, P.W.3, and son, Dayanand Singh (not examined) due to fear, fled away but younger son, Shivakar Singh, P.W.1, came and lied on him in order to rescue but Vikesh caught hold of him and thereafter said Vikesh Singh took out V.I.P brief case containing ornaments of his wife worth Rs.40,000/-, two bags of rice and one green colour 22" Atlas cycle and left the place of occurrence with all such articles and youngest son, Shivakar Singh. Co-villager, Rajendra Singh, Dayanand Singh (both not examined) and Govardhan Singh, P.W.3, have also seen the occurrence. THE farde-bayan was witnessed by P.W.4, Sushila Devi. On the basis of aforesaid farde-bayan Udwantnagar P.S. Case no. 43 of 2004 was recorded for the offences under Section 147, 148, 149, 307, 323, 452, 380, 369 and 504 of the Indian Penal Code. After investigation Police submitted charge sheet no.233 of 2004 for the offences under Sections 147, 148, 149, 323 and 504 C of the Indian Penal Code only om 30.12.2004 only against Sunil Singh keeping the investigation pending against others, against whom subsequently charge sheet was also submitted. But, cognizance was taken for the offences under Sections 364/452 of the Indian Penal Code also besides other Sections. Case was committed to the Court of Sessions and subsequently in the Court of 1st Additional Sessions Judge, Fast Track Court, trial commenced by framing charges against all the appellants and Bhagwan Singh (died during trial) for the offences under Sections 147, 148, 380, 452, 364/149 and 323 of the Indian Penal Code wherein prosecution has examined altogether seven witnesses. P.W.1, Shivakar Singh, victim, P.W.2, Shivanand Singh, informant, P.W.3, Govardhan Singh, P.W.4, Sushila Devi, wife of informant and mother of P.W.1. P.W.5, Satish Chandra, Judicial Magistrate, recording statement of P.W.1 under Section 164 of the Code of Criminal Procedure on 15.7.2004. P.W.6, Rajdeo Singh is the Investigating Officer and P.W.7, Dr.Manoj Kumar Sinha, has examined the informant and proved injury report, Exhibit-6. Apart from the above witnesses examined prosecution has further produced the documentary evidence by way of Exhibits. Exhibit-1 Signature on Statement U/s 164 Cr.P.C. Exhibit-2 Statement U/s 164 Cr.P.C by Sri Satish Chandra Exhibit-3 F.I.R. Exhibit-4 Fardbayan Exhibit-5 Para 95 to 110 of Diary Exhibit-6 Inquiry report

(3.) ON the point of kidnapping of P.W.1 it is the prosecution version that when informant was being assaulted younger son, P.W.1, in rescue of father, P.W.2, lied on his body then appellant no.2, Vikesh Kumar Singh, caught hold of him and left the place with other articles and the victim who returned, as per P.W.2. in Paragraph 5, roughly two and half months after the occurrene and vide paragraph 8 statement of the victim was recorded by Police when he was produced by this P.W.2. Similarly, P.W.3, Gobardhan Singh, in paragraphs 2 and 3 has said about abduction of victim by Vikesh Kumar Singh and returned after two and half months. P.W.4, mother of the victim and wife of the informant, has almost said same thing in paragraph 3 with only improvement that the victim was not only caught hold but given two to four slaps by Vikesh Kumar Singh and he returned two and half months after the occurrence. None of these witnesses have seen anything hapenning with the victim after his abduction during the initial occurrence of assault till his return to the house. Whatever they have stated in their deposition about the dealings with the victim is the informations received from P.W.1, the victim, who is the solitary witness.