MD. SHAHABUDDIN Vs. STATE OF BIHAR

JUDGEMENT

(1.) All the appellants of these appeals were held guilty under Sections 364A, of the IPC. They (except appellant Md. Shahabuddin) were also held guilty under Sec. 323 of the I.P.C. Appellant of Cr. Appeal No. (DB) No. 73 of 2016 was also found guilty under Sections 302, 201 read with Sec. 120B of the IPC. The judgment of conviction and order of sentence were passed by the learned Additional Sessions Judge IV-cum-Special Judge (Jail Court) in Sessions Trial No. 158 of 2010. Appellant of Cr. Appeal (DB) No. 73 of 2016, Cr. Appeal (DB)No. 112 of 2016, Cr. Appeal (DB) No. 63 of 2016 and Cr. Appeal (DB) No. 95 of 2016 shall hereinafter referred as A1, A2, A3 and A4 respectively.

(2.) 16th of Aug. 2004 proved a horrific day for the informant (PW1) and her family. Her husband PW-4 on that day was not present in the town. PW-4 had two shops in the township of Siwan. One shop was at Mohalla- Churrahatti whereas another general store was located near the bus stand. She was then living at the Yadav market on rent. Informant's one son Satish @ Sonu (hereinafter referred as D1) was at the Churrahatti Kirana shop whereas her another son Girish Kumar @ Nikku ( hereinafter referred as D2) was at the bus stand general store. At about 01 pm her servant Vishal (CW-1) who was at the churrahatti shop came running and informed her that her son Satish @ Sonu was attacked, assaulted and kidnapped by unknown accused persons. At about the same time her another servant Barrister Yadav (PW3) who was at bus stand shop came and narrated that her shop at bus stand was also attacked and ransacked. The unknown accused persons grievously assaulted her son and kidnapped him. Later, it revealed to her that the shop at the bus stand was looted and torched. On the basis of whatever information gathered, she lodged the 'Fardbeyan? (Ext.1) on 16.08.2004 at 7 P.M against accused(s) Nagendra Tiwari and Madan Sharma and some unknown accused persons. Her statement was recorded when the police visited her residence in the evening and, accordingly, Siwan (Muffasil) P.S. Case No. 131 of 2004 under Sections 341, 323, 380, 435, 364 and 34 of the Penal Code was registered. It may be noted that the police had earlier in the afternoon of the same day had registered Siwan (Muffasil) P.S. case no. 130 of 2004 (Ext. B-1) under Sec. 307 of the Penal Code against her another son Rajiv Roshan (PW6) on the statement of co-accused Madan Sharma for having caused injury to him and two others by throwing acid on them.

(3.) It all started with an ordinary civil dispute. PW-4 had purchased the land with shops at the bus stand for his business and residential purposes. Co-accused Nagendra Tiwari was running his business in one of the shops. He was not vacating the shop. Chandrakeshwar Prasad (PW-4) got himself impleaded as the plaintiff in an ongoing eviction suit for evicting Nagendra Tiwary from the shop. During the pendency of the suit, co-accused Nagendra Tiwari with an oblique motive transferred portion of the subject land to accused(s) Madan Sharma and Chhotey Lal Sharma and also surreptitiously inducted them into the shop. PW-4, however, claimed continued title and possession over the land inasmuch as he had started construction of his residential cum business premises on the purchased land/plot which apparently aggravated the situation. The informant (PW1), in her 'Fardbeyan? in a meek voice has also alleged that she tried to lodge the case but the officers at the police station had refused to register the case. The police, it appears, first registered a case against PW 6 under Sec. 307 of the Penal Code and thereafter in the evening recorded the Fardbeyan? (Ext1) of the informant (PW1). Even after registering the FIR the police was tardy in the investigation. The family of PW-1 continued to reel under constant threat and fear which prompted PW-4 to file a criminal Writ Petition in the Patna High Court for a direction on the State respondents to proceed with the investigation in a fair and transparent manner. Ultimately, the charge sheet was laid in 2009 under Sections 341, 323, 380, 436, 364 and 120B of the Penal Code whereon cognizance was taken against the appellants on 10.11.2009. On commitment, the case came on the file of the learned trial Judge. In spite of material available on record for framing of charge under Sections 302, 201,120B of the IPC, the Court declined to frame those charges. The prosecution moved an application before the High Court wherein an order was passed on 18.04.2014 and only thereafter the Court added charges under Sections 302/201 read with Sec. 120B of the Penal Code on 01.05.2014 against all the accused(s) facing the trial. It is further pertinent to note that A1 was a political heavy weight who had successfully been able to blend his notoriety with political influence/power. The Patna High Court at the initiative of the State Government, by diverse notifications issued in May, 2006 constituted special Court to try all pending cases against A1 in jail. The constitution of special Bench to try pending cases in jail was challenged by A1 before the Honourable Supreme Court of India. A Bench of the Supreme Court under order dated 25.2010 since reported in (2010)4 SCC 653 upheld those notifications. It would be pertinent to note the circumstances which prompted the State to get the special Court constituted to try the said appellant in jail. They are appropriately delineated in the reply affidavit of the State filed before the Supreme Court which was taken note of by the Supreme Court in paragraph nos. 28,117 and 139 of the report which read as under:-