Allowed

Lal Bahadur Sah v. State

Patna HC25 Sept 2014CR. APP (DB)/191/1991

Case brief

AI extract

What is this about?

In a criminal appeal against conviction for kidnapping and murder, the High Court set aside the lower court's judgment and released the appellant, holding that the evidence was insufficient to prove guilt absent a voluntary confession, which was alleged to have been obtained under duress.

What did the court decide?

The judgment of conviction and sentence set aside; the appellant is set at liberty and freed from bail bonds liabilities.

Lal Bahadur Sah Vs State — Criminal Trial and Appeal | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.191 of 1991

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=========================================================== Against the judgment of conviction and order of sentence dated 26^th April, 1991 passed by Shri Mithilesh Kumar Singh, 5th Additional Sessions Judge, Bhojpur at Arrah in Sessions Trial No. 463 of 1986. =========================================================== LAL BAHADUR SAH SON OF LATE JAGDEP SAH, R/O VILLAGE- ANAITH, P.S.- ARRAH NAWADAH, DISTRICT- BHOJPUR………………… APPELLANT VERSUS THE STATE OF BIHAR……………………………………............ RESPONDENT =========================================================== Appearance :

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For the Appellant/s : Mr. Anil Kumar Mishra, Advocate

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Mr. Rishikesh Ojha, Advocate

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Mr. Shantam Sagar, Advocate For the Respondent/s :Mr. Ajay Mishra, APP

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=========================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA

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C.A.V. JUDGMENT

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(Per: HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA) Date: 25-09-2014

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The sole appellant Lal Bahadur Sah has preferred this appeal being aggrieved by and dissatisfied with the judgment of conviction and order of sentence dated 26.4.1991 passed in Sessions Trial No. 463 of 1986 by the learned 5^th Additional Sessions Judge, Bhojpur at Arrah whereby and whereunder the appellant has been found guilty for committing the offence punishable under Section 364 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life.

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2. The prosecution case was initiated at the behest of Binod Kumar (PW 4) resident of K. C. Road, M. P. Bagh, Arrah. Briefly stated, the prosecution case is that on 7.6.1986 Pramod

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Patna High Court CR. APP (DB) No.191 of 1991 dt.25-09-2014

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Kumar @ Modi the elder brother of informant and one Adya Kahar resident of Arrah proceeded for Shahjahanpur (U.P.) with the appellant Lal Bahadur Sah and this fact came to the knowledge of the informant from his brother Pradeep Kumar. Pramod Kumar used to go to Shahjahanpur (U.P.) in connection with some case but when neither Pramod Kumar nor Adya Kahar returned for eight days, then, the informant suspected some foul play and then went at the house of Lal Bahadur Sah in Mohalla Anaith of Arrah town on 17.6.1986 and after inquiry the appellant did not give any clue. The appellant was advised by the informant to go to his daughter at village Nawgaon and to gather information about his brother which the appellant promised but he did not go there. In the meanwhile informant sent Binod Kumar Kahar (PW 1), Daga Kahar (PW 2) and Rameshwar Nath Chaudhary (PW 3) to Shahjahanpur to find out and accordingly, they went there, searched at different places, thereafter, returned on 22.6.1986 in the night and informed the informant that whereabouts of Pramod Kumar and Adya Kahar was not known. On 23.6.1986, the informant learnt that the appellant Lal Bahadur Sah had come to the court in connection with a bail of a person named Sadhu and then, the informant went there, met with the appellant in the campus of Arrah Collectorate and brought him to his own house where inquiry was made from the appellant and when he was giving evasive reply, the informant searched out his pocket and recovered some document and Rs. 125/- from his

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Patna High Court CR. APP (DB) No.191 of 1991 dt.25-09-2014

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pocket. A chit of paper was also recovered wherein it was written that Pramod Kumar Sinha @ Modi had proceeded on 7.8.1986, reached on 9.6.1986 and finished. From that paper it was gathered that Pramod might have been killed, then, the appellant stated that Pramod Kumar Sinha and Adya Kahar had been murdered. The entire family of the informant started weeping and in the meantime the Police came and took the informant and the appellant at Nawadah Police Station where fard-beyan of the informant was allegedly recorded on 23.6.1986 at 3.00 PM. The paper and cash amount were also produced which was recovered from the pocket of the appellant and accordingly, the formal FIR was drawn and investigation started. After completion of investigation, the Police submitted chargesheet against three persons showing them in custody whereas 8 persons have been shown as absconder. Accordingly, cognizance was taken, the case was committed to the court of Sessions where charges were framed against this appellant and Sadhu @ Babajee and Chaya Devi under Sections 364/120B of the Indian Penal Code to which they pleaded not guilty and claimed to be tried. Accordingly, they faced trial and only the appellant has been found guilty whereas two co-accused were acquitted.

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3. The prosecution has examined altogether 5 witnesses in this case who are PW 1 Binod Kumar, Cycile Mechanic, PW 2 Dagga Kahar a shopkeeper, PW 3 Rameshwar Nath Chaudhary service holder, PW 4 Binod Kumar the informant and

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Patna High Court CR. APP (DB) No.191 of 1991 dt.25-09-2014

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PW 5 Basudeo Prasad Singh the Investigating Officer.

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4. The defence has also examined one witness who is Murat Ram (DW 1), a clerk in the District Transport Office who has proved Ext. A which is the FIR.

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5. PW 1, Binod Kumar, used to work in the garage of deceased as the deceased was having 8-9 rickshaw. This witness has stated that on 7.6.1986 he had gone at the residence of Pramod Kumar for giving account where Rameshwar Chaudhary, Pradeep and Dagga were also present. In the mean time, Lal Bahadur Sah came there and told Pramod to go to Shahjahanpur to compromise the case to which Pramod and Adya Kahar became ready to go with him and after half an hour Pramod and Adya and the appellant proceeded for Shahjahanpur. About 8 days after, the informant asked him that why Pramod and Addya had not returned and then they went at the house of the appellant where the appellant replied that they would return later on. This witness, as directed by the informant, went to Shahjahanpur in search of both. This witness further states that on 23.6.1986, the appellant was brought at the house of the informant where he was searched and from his pocket a piece of paper and amount of Rs. 125/recovered and thereafter, the appellant confessed before them that Pramod Kumar and Adya had been killed. In the meantime the Police of Nawadah Police Station came. The informant and appellant were brought to Police Station. This witness has been

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Patna High Court CR. APP (DB) No.191 of 1991 dt.25-09-2014

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cross-examined at length. After careful and cautious scrutiny of the evidence of this witness, it reveals only that on 7.6.1986 Pramod Kumar and Adya Kahar and the appellant had gone. It reveals that in connection with some case Pramod Kumar used to go at Shahjahanpur. On the chit of paper, which is material Ext 1, there is no mention of the name of Adya Kahar and further from that paper it does not reveal that Pramod Kumar and Adya Kahar might have been murdered.

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6. Similar is the fate of PWs 2 and 3. They have also stated similarly as like PW 1.

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7. PW 4 Binod Kumar is the informant of this case. He has also stated similarly that on 7.6.1986, accused Lal Bahadur Sah took away his brother Pramod Kumar and Adya Kahar to Nawgaon, P.S.-Khudaganj, District- Shahjahanpur, (U.P.) from where his brother and Adya Kahar did not return. Thereafter, on 17.6.1986 he inquired from the appellant after going to his house about them in presence of PWs 1 and 2 and then, the appellant replied that they would return later. Further, this witness has stated that he advised the appellant to go there but he did not go there and then, PWs 1, 2 and 3 were advised to go there to search them. Thereafter, PWs 1, 2 and 3 returned empty handed and without any clue. On 23.6.1986, after getting the information that the appellant had come in the court, the informant and three witnesses went there and when the appellant started giving

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Patna High Court CR. APP (DB) No.191 of 1991 dt.25-09-2014

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evasive reply, he was brought to his house and after search from his pocket, a chit of paper containing name of Pramod Kumar Sinha @ Modi and date of departure 7.6.1986 and arrival as 9.6.1986 was found written therein and then, the appellant confessed that Pramod Kumar and Adya Kahar had been murdered. In the meantime the Police came and took the appellant and informant at Police Station where fard-beyan was recorded. During investigation, this witness had given some letters of the appellant from bag of his brother (victim). The motive has been alleged that one Harendra Ram @ Guhari was the servant of his brother Pramod who was married with accused Chaya Devi and later on the appellant sold Chaya Devi to Jasbir Singh of Nawgaon and Jasbir Singh kept Chaya Devi and then Harendra Ram had filed a criminal case of kidnapping against the appellant and others in which the daughter of the appellant was also an accused. According to PW 4, the appellant, Jasbir Singh and others were suspecting that the victim Pramod instigated Harender to file the case and as such, in criminal conspiracy, the brother of the informant, namely, Pramod Kumar, Adya Kahar were taken away with an intention to commit murder.

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8. After careful and cautious scrutiny of the evidence of PWs 1 to 4 and also Ext. 1, it does not reveal as to whether with the appellant the brother of the informant and Addya Kahar had gone to Nawgaon, Shahjahanpur. No one had seen them going.

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Patna High Court CR. APP (DB) No.191 of 1991 dt.25-09-2014

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Further it does not reveal that whether they reached there or not. Only on suspicion the appellant has been roped. From Ext. 1 also it does not reveal that the appellant kidnapped Pramod and Adya Kahar. It is well settled that even strong suspicion cannot take place of evidence.

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9. PWs 1 to 3 are the interested witnesses and closely attached with PW 4. Suggestion has been given on behalf of the appellant to PW 3 that the paper containing those writings were forcefully got written after bringing the appellant at the house of PW 4.

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10. Learned counsel for the appellant has submitted that the appellant was brought from Arrah Collectorate to the house of the appellant at the point of pistol and knife by PWs 1 to 4 and he was assaulted at the house of PW 4. Learned counsel for the appellant has drawn our attention to the first order sheet of the court of learned C.J.M., dated 24.6.1986, wherein the learned C.J.M. has found injury on the appellant near his left eye. The appellant complained that the informant caused the said injury and thus suggestion given to PW 3 in paragraph 27 appears reasonable that something was got written after causing injury to the appellant and moreover, that chit of paper is not going to throw any light regarding kidnapping of the informant’s brother and Adya Kahar.

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11. I find force in the submission of learned counsel

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Patna High Court CR. APP (DB) No.191 of 1991 dt.25-09-2014

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for the appellant. Learned counsel for the appellant has further drawn our attention towards Ext. A. Though the same has not been legally proved. From Ext. A- it reveals that the wife of the appellant gave information to the Police regarding taking away of the appellant from Arrah Collectorate and on that information, the Police went from where the injured appellant and the informant were brought at the Police Station.

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12. PW 5 is the Investigating Officer of this case. He has stated that on 23.6.1986 he received the charge of investigation by the Officer-In-charge. He inspected the place of occurrence. He was given some document by the informant during investigation. He has recorded the statements of PWs 1 to 3 and thereafter, he handed over charge. From the evidence of this witness, it reveals that no proper investigation was done.

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13. Learned counsel for the appellant has drawn our attention towards the evidence of PW 5 in paragraph 25 wherein he has admitted that Pramod Kumar was accused in so many cases and he has mentioned the same in the case diary. This witness in paragraph 38 of his deposition admits that Chaya Devi @ Nitu had stated the name of her husband as Jasbir Singh. In paragraph 44 he admits that at Nawgaon, no one stated that Pramod had come there. In paragraph 45 this witness states that no one had stated before him that he saw Pramod boarding the train with the appellant.

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Patna High Court CR. APP (DB) No.191 of 1991 dt.25-09-2014

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14. Learned counsel for the appellant also submits that Pramod being a criminal either went elsewhere or might be murdered by someone else. There was no enmity with Adya Kahar, so why the appellant will kidnap him also with an intention to commit his murder. In the chit of paper (Ext. 1) there is no mentioning of Adya Kahar. PW 5 did not make any objective findings with regard to this case. Thus, it is quite clear that there is no direct evidence in this case to connect the complicity of the appellant in the crime and further the circumstances are also not in such a way to complete the chain so that only inference be drawn that it is the appellant who has committed the crime. Sadhu @ Babajee and Chaya Devi on the same set of evidence have been acquitted. In the entire evidence, there is no whisper about them and it is not possible that without help of other accused such type of crime can be committed by only one man. The entire evidence brought on the record do not even inspire confidence to hold the appellant guilty.

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15. Learned APP on the other hand submits that the prosecution has been able to substantiate the charge against the appellant who has confessed his guilt in presence of witnesses and from his pocket Ext. 1 was also recovered by which inference can be drawn that the appellant kidnapped Pramod Kumar @ Modi and Adya Kahar.

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16. I am not convinced with the argument advanced

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Patna High Court CR. APP (DB) No.191 of 1991 dt.25-09-2014

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by the learned APP. It is manifest from the first order sheet of learned Chief Judicial Magistrate dated 24.6.1986 that the appellant complained that the informant caused injury to him and got that paper written by him forcibly. It is also not in dispute that on the information of the wife of the appellant, the Police went at the house of the informant from where the injured appellant and the informant were brought at the Police Station. In this case, circumstances do not in any way complete the chain. When the prosecution seeks to bring home to charge upon the accused, the circumstances from which the conclusion of guilt is to be drawn should be fully established and the facts so established should be consistent only with the hypothesis of the guilt of the accused and should exclude every possible hypothesis except the one to be proved. The circumstances should be of a conclusive nature and tendency and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. The case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction.

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17. In the present case, the only evidence is that Pramod Kumar and Adya Kahar became ready to go with the appellant and thereafter, there is no evidence on the record as to how and when they went to Shahjahanpur. No witness has come

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Patna High Court CR. APP (DB) No.191 of 1991 dt.25-09-2014

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forward to say that they were seen at Shahjahanpur. The said extra judicial confession is not voluntary and it is manifest that the appellant was assaulted and he received injury. He was forcibly brought from Arrah Collectorate to the house of the informant, so the evidence of prosecution that the appellant voluntarily accepted his guilt falls flat to the ground. The prosecution has not been able to prove the charge against the appellant beyond the shadow of all reasonable doubts.

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18. In the result, I am of the view that the appellant is entitled to get the benefit of doubt. Accordingly, the judgment of conviction and order of sentence passed against the appellant is set aside and the appeal stands allowed. The appellant is set at liberty and freed from the liabilities of his bail bonds.

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(Jitendra Mohan Sharma, J)

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(Navaniti Prasad Singh, J) I agree

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avin/-N.A.F.R.

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(Navaniti Prasad Singh, J)

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U T

Lal Bahadur Sah v. State

Case brief

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What did the court decide?

Lal Bahadur Sah v. State

Case brief

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