SHANKER SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellants, namely, Prabhu Singh and his son Shankar Singh, Prakash singh, Ram Chandra Singh, Subodh Singh and Sakal Deo Singh have preferred this appeal against the judgment of conviction and order of sentence dated 16.1.1993 passed by the Sessions Judge, Khagaria in Sessions Case No. 620 of 1991 arising out of Beldour P.S. Case No. 93 of 1990 whereby the appellants were found guilty for the offence under Sec. 363 Indian Penal Code and were sentenced to undergo R.I. for the period which has already been undergone by them in custody. All the accused persons who are appellants were charged under Sec. 364 of the Indian Penal Code for abducting Dular Singh PW 6 from village Gawas at Raman Singh Basa P.S. Beldour District Khagaria on 30th December, 1990 with intention that he may be murdered.

(2.) ONE Parwati Devi, PW 7 wife of the Inderdeo Singh stated that at 3 P.M. four she buffaloes of Prabhu Singh were taken away by the criminals. After one hour Shanker Singh came to the house of the PW 7 and told her that her father -in -law has acted as Spy in theft of buffaloes and so her father -in -law would not be spared. In the said evening at 7 P.M. the informant heard that her father -in -law Dular Singh has been taken away by Prabhu Singh and his sons with intention to murder him. Thereafter, the informant along with her husband rushed to search and saw that the accused persons with 4 -5 criminals taking away Dular Singh, at that time they were armed with firearms. Prayer of informant to spare Dular Singh was not heard rather the informant was threatened by one of the accused Shanker Singh to escape and thereafter threat was made. The informant retracted to her house. Thereafter her husband again went to trace out his father along with Paras Sharma PW 1, Ram Chandra Paswan PW 2, Shyam Pandit PW 3, Mangan Pandit PW 4, Banarsi Sharma PW 5 and others but his father could not be traced so the case was registered under Sec. 364 IPC. The matter was investigated. After investigation charge sheet was submitted and cognizance was taken. Charges were explained to the accused persons under Sec. 364 IPC. 3 Defence of the accused persons from the beginning was that they have falsely been implicated with a view to put pressure. No case under Sec. 364 IPC was made out and there was no intention to do away with the life of the victim. No independent witnesses were examined by them. In order to prove the case the prosecution altogether examined 8 witnesses. PW 1 Paras Sharma, PW 2 Ram Chandar Paswan, PW 3 Shyam Pandit, PW 4 Mangan Pandit, PW 5 Banarsi Sharma, PS 6 Dular Singh the alleged victim, PW 7 Parwati Devi daughter -in -law of Dular Singh -informant and PW 8 Sri Narayan Singh the Investigating Officer. PWs 2 and 4 were tendered. PWs 1, 3 and 5. have not supported the case and they were declared hostile. The remaining witnesses PW 6 and 7 supported the prosecution case. Statement of PW 7 in the court was that in the evening of date of occurrence Shanker Singh came to her house and told that her father -in -law have been caught and taken away because he has acted as Spy of the police in theft of she buffaloes who were variously armed, at that time hands of her father -in -law was tide from behind. She prayed the appellants to spare the life of her father -in -law but he was not spared and she and her husband returned to her house and again her husband rushed in search of his father and the informant remained at her house. She stated that she has made statement before the police and after making her statement she has put her L.T.I. She was cross examined in detail about the intention of the accused as well as in the manner of the occurrence. But she remained consistent that her father -in -law was kidnapped by the appellants. No ambiguity could be pointed out by the defence so her evidence is fit to be believed. 4. PW 6 is the victim, who in his evidence stated that he was caught by the accused persons and was assaulted when he wanted to know what was his fault then the appellants told that he was working as spy in the matter of theft of the buffaloes. He was taken to the house of the accused and tide there. He requested the accused persons to spare him then the accused persons told that he will be spared after his son is brought. He narrated the story of kidnapping of Inderdeo Singh for which a separate case was lodged. When the police arrived, there was exchange of fire between the criminals and the police which resulted in another case. This witness stated that he was not in a position to see the accused persons and during night normally there is no visibility. Subsequently, he was released by un -tiding the rope and was asked to go away". The I. O. has stated that after receiving the information the police rushed and there was exchange of fire in which one constable No. 317 Surender Prasad Vidyarthi was injured and the victim was rescued. There is consistent evidence that on the date and time of occurrence the appellants kidnapped the victim Dular Singh PW 6. 5. There is no doubt that some witnesses have not supported the prosecution case but the fact regarding encounter would go to show that one constable was also injured while there was encounter between the criminals and the police. This fact has been stated by the I. O. There is no cross examination on this point. The victim and I. O. have also fully described the manner of occurrence and date and time of the occurrence. Some witnesses became hostile does not falsify the prosecution case. Because number of witnesses is not be counted rather quality of witnesses has to be counted. If the quality of witnesses are trustworthy then there is no illegality in believing them. The victim is the best witness and he can state about the entire facts. The victim in his entire examination and cross examination has supported the case that he was kidnapped by the appellants. Therefore, the prosecution has been able to prove its case beyond all reasonable doubt and the court below has rightly convicted the appellants under Sec. 363 IPC not under Sec. 364. IPC. Therefore, I am of the view that the prosecution has been able to prove its case beyond all reasonable doubts. 6. On the question of sentence, it has been submitted by the learned Counsel for the appellant that the appellants are the first offenders and no previous conviction has been passed so they should have been granted benefit of Section 360 Cr.P.C. or Probation of Offenders Act. 7. This is a case of serious nature in which the prosecution has been able to prove that on the date and time of occurrence there was kidnapping in the day light by the appellants, so in my view the appellants do not deserve the benefit of provision of Sec. 360 Cr.P.C. or Probation of Offenders Act. The trial court has considered those facts and has already taken lenient view by holding that the period undergone by the appellants in custody shall be deemed to be sufficient. I agree with the finding or the trial court and held that the period undergone by the appellant in course of trial shall be deemed to be sufficient for the ends of justice. 8. In the result this appeal is dismissed. As Mr. Ranbir Singh has been appointed as Amicus Curiae to represent the appellants to assist the court, he is entitled to admissible fee from the Patna High Court Legal Aid Committed. Let a copy of be handed over to him.