CHHOTE PATHAK Vs. STATE OF BIHAR

JUDGEMENT

(1.) All three appeals under consideration which arise out of the same judgment dated 25.7.1997 and order dated 29.7.1997 passed by 4th Additional Sessions Judge, West Champaran, Bettiah, in Sessions Trial No. 276/95 convicting and sentencing the Appellant Jagarnath Mahto of Cr. Appeal No. 523 of 1997 to undergo imprisonment for life under Section 364A of the Indian Penal Code (in short, IPC) and. Appellants namely, Ashok Mahto @ Ashok Kumar Mahto (sole Appellant of Cr. Appeal No. 453 of 1997), Chhote Pathak, Singhasaan Yadav and Naresh Bin (Appellants of Cr. Appeal No. 581 of 1997) to undergo imprisonment for life under Section 364A read with Section 34 IPC have been heard together and being disposed of by this common judgment.

(2.) The case of prosecution, in short, is that Sushil Kumar Bhartiya (PW6) was posted as Chief Judicial Magistrate, Bettiah, where his son Jay Bhartiya (PW4) was studying. In the month of February, 1995, Sushil Kumar Bhartiya joined Sasaram on his transfer. On 2.4.95 he along with his son Jay Bhartiya came to Bettiah where Jay Bhartiya was to appear in matriculation examination. On 8.4.95 Jai Bhartiya came to know that his practical examination would commence on 26.4.95, therefore, on 9.4.95 his father Sushil Kumar Bhartiya left for Sasaram leaving him behind at Bettiah. On 14.4.95 at about 2 PM when Jai Bhartiya was at the house of informant, co-accused Deepak Giri @ Anil Giri who used to visit the house of informant and during those visits Jai Bhartiya ceme to know him, came to the house of informant and asked Jai Bhartiya for going to see cinema show. Jai Bhartiya left the house of informant along with him for cinema show and in the way he found some boys standing on road out of whom he identified Parwej, Manoj Mian, Babara and Jugnu. There were two other persons, one having beard and tall and another having moustache and short statured whose names were not known to Jay Bhartiya. Co-accused Deepak Giri suggested for strolling before going to cinema hall and therefore he, co-accused Deepak Giri and the aforesaid persons all moved together and after going for some distance one another man met them who was addressed by Deepak Giri as Ajay Mama and he also joined their company. Thereafter Parwej told that he had some work at his house and suggested that all will go first to his house and thereafter to cinema hall. Jay Bhartiya and the aforesaid persons went to the house of Parwej situated at Dargah Mohalla of Bettiah town where some other persons also joined them and Parwej offered sweets to Jai Bhartiya who after eating the sweets felt intoxication. He was put on a 'Chauki' and he saw that Parwej and his companions repeatedly were going out side and having some talks and then he realised that he was in some trouble. Thereafter one another man who was addressed by Parwej as Hasnain Bhaiya told that every arrangement had been made and asked the persons assembled there to come to 'Chhawani' at about 12 o'clock in the night and thereafter he left the house. Thereafter aforesaid persons brought beer and wine and forced Jai Bhartiya to take beer and thereafter they all took him to a house at Chhawani at about 12 o'clock in the night where Jai Bhartiya found one man present there who was addressed as Rahim Mian and at about 2 o'clock in the night two persons came near Jai Bhartiya who boarded him on a truck. At that time co-accused Anil Giri came there and demanded remuneration saying that he had already brought the boy but the aforesaid persons gave him a kick and he fell down from the truck and thereafter the truck was started. Amongst the persons who were present in the truck Jai Bhartiya identified Appellant Jagarnath Mahto who was in police uniform and Ambika. Whenever the truck was stopped in the way by police Appellant Jagarnath Mahto used to tell that his family was travelling and on this pretext truck used to be allowed to proceed further without checking. Jay Bhartiya was brought by the truck in a forest where he was kept for five days and later on he came to know that it was Madanpur Forest situated west of Bettiah town. Villagers used to bring food for the kidnappers. When the activity of police increased Jay Bhartiya was shifted to another forest at a distance of 15-20 km from the earlier place where he was kept for about 10-12 days. Co-accused Parwej and Appellant Jagarnath Mahto left the forest and while leaving Parwej snatched his wrist watch. Thereafter other co-accused persons also came who were armed with guns and country made pistols who used to give threatening to Jai Bhartiya for killing him. Out of them Jai Bhartiya came to know the names of Lambu Musahar, Chhotu Dadhi Bala, Kishori Chauhan Verma, Chaudhary Ravindra and Vijay Mahto Gupta. One another man named Sadhu Bin was also there. All these persons kept Jai Bhartiya in their custody for ransom and they used to force him to write letters to his father. Jai Bhartiya was shifted from there and was taken to the border of Nepal. The pressure of police was increasing and once police came very near to Jai Bhartiya. Jai Bhartiya was kept by kidnappers at different places and a number of persons used to come to meet the kidnappers and Jay Bhartiya came to know their names as Monika Chaukidar, Appellant Ashok Mahto, Appellant Naresh Bin, Appellant Chhote Pathak and Appellant Singhasan Yadav and Nandlal Mahto. The kidnappers used to tell Jay Bhartiya that some of their family members were arrested by the police and by asking his father if he gets them released he would also be released and sometimes they used to tell him to get money from his father. Later on, Jai Bhartiya came to know that his father had met the kidnappers and he was released in Nepal and was shown the way for going and meeting his father and when Jay Bhartiya moved on that way for some distance he found his father who had come on a jeep and thereafter Jay Bhartiya along with his father came to Bettiah. He narrated the entire incident to his father as well as to his relations and othefr persons. His statement was recorded by the Police and by Magistrate. In the meantime, when informant Dina Nath Keshan (P.W. 5) found that Jay Bhartiya after leaving his house on 14.4.95 in the evening had not come back on that day he started making search for him and on 15.4.1995 lodged a written information at the police station, Bettiah stating therein that Jay Bhartiya had gone with co-accused Deepak Giri @ Anil Giri, Parwej, Jugunu, Manoj Mian and two others, one having long beard and another having moustache and had not returned thereafter. On the basis of written report (Ext.4) of the informant a case under Section 364A IPC was registered drawing a formal FIR (Ext.7) against co-accused Deepak Giri @ Anil Giri, Parwej, Jugunu, Manoj Mian and two unknown persons. Police after investigation submitted charge sheet against the Appellants and co-accused Deepak Giri @ Anil Giri, Kanhaiya Lal Chaudhary, Rahim Ansari, Nandlal Mahto and Narsing Bin under Section 364A IPC keeping further investigation pending. After taking cognizance case of all those persons was committed to the court of Session where case of co-accused Rahim Ansari was separated on account of his absconding and charge under Section 364A IPC was framed against all the Appellants, co-accused Anil Giri @ Deepak Giri, Kanhaiya Lal Chaudhary, Nand Lal Mahto and Narsing Bin. Later on, case of co-accused Deepak Giri @ Anil Giri was separated on 7.6.97 on account of his absconding. The Appellants and co-accused Kanhaiya Lal Chaudhary, Nand Lal Mahto and Narsing Bin faced the trial and after trial co-accused Kanhaiya Lal Chaudhary, Narsing Bin and Nand Lal Mahto were not found guilty and they were acquitted but so far Appellants are concerned, Appellant Jagarnath Mahto was found guilty under Section 364 IPC and other Appellants were found guilty under Section 364A read with Section 34 IPC and accordingly they were convicted and sentenced to undergo imprisonment for life. The case of Appellants as it appears from the trend of cross examination of prosecution witnesses is complete denial of charge against them and their false implication in this case. The specific defence of Appellant Ashok Mahto is that before putting him on T.I. parade he was shown to witnesses by police. Three witnesses have been examined on behalf of Appellants.

(3.) In order to prove its case the prosecution has examined 11 witnesses. Dina Nath Keshan (P.W. 5) is informant. Jay Bhartiya (P.W. 4) is the victim boy. Sushil Kumar Bhartiya (P.W. 6) is father of victim boy Jay Bhartiya. Faresh Ram (P.W. 7) and Fulena Ram (P.W. 8) are Investigating Officers. Harendra Prasad (P.W. 9) and Md. Ali (P.W. 10) are formal witnesses who have proved the Fardbeyan (Exct. 4/1), formal FIR (Ext. 7/1) and seizure list (Ext. 8/1) of Gobardhan PS Case No. 16/95 and a letter (Ext.11) addressed by APP to Shri T.L. Verma, Advocate. Awadhesh Singh (P.W. 41) is a witness who had accompanied Sushil Kumar Bhartiya (P.W. 6) when he had gone to meet the kidnappers. Ramashray (P.W. 1) is a Judicial Magistrate who had recorded confessional statement of co-accused Ganga Prasad, Rahim Ansari, Kanhaiya Lal Chaudhary and Deepak Giri @ Anil Giri under Section 164 Code of Criminal Procedure Satish Chandra Roy (P.W. 2) is also a Judicial Magistrate who had conducted T.I. parade in which Appellant Ashok Kumar Mahto was put and was identified by the informant and Jay Bhartiya (P.W. 4). He has proved T.I. Chart (Ext. 2). Here we may mention that in his evidence this witness has first stated, that on 1.5.1.95 he got the T.I. parade conducted but in his cross examination he has said that T.I. parade was conducted on 15.1.96 the order for which he had received on 12.1.96. From the T.I. chart (Ext. 2) also it appears that T.I. parade was held on 15.1.96 and it appears that in his evidence the date 15.1.95 for conducting the T.I. parade is an error of record. Triloki Nath Tewary (P.W. 3) is an Additional Munsif who had recorded the statement of victim Jay Bhartiya (P.W. 4) under Section 164 Code of Criminal Procedure which he has proved (Ext. 3).