IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (DB) No.1435 of 2017

Arising Out of PS. Case No.-23 Year-1997 Thana- SHIVSAGAR District- Rohtas

======================================================

Lalan Paswan S/o Late Ram Charitar Paswan, R/o Village- Turki, P.S.

Chenari, District- Rohtas. ... ... Appellant

Versus

The State of Bihar ... ... Respondent

======================================================

with

CRIMINAL APPEAL (DB) No. 1292 of 2017

Arising Out of PS. Case No.-23 Year-1997 Thana- SHIVSAGAR District- Rohtas

======================================================

Lalan Paswan S/o Late Bali Ram Paswan R/o Village Belaspur, P.S. Chenari,

District Rohtas. ... ... Appellant

Versus

The State of Bihar ... ... Respondent

======================================================

with

CRIMINAL APPEAL (DB) No. 1293 of 2017

Arising Out of PS. Case No.-23 Year-1997 Thana- SHIVSAGAR District- Rohtas

======================================================

Lok Nath Paswan S/o Late Tulsi Paswan R/o Village - Belaspur, P.S. Chenari,

District Rohtas. ... ... Appellant

Versus

The State of Bihar ... ... Respondent

======================================================

with

CRIMINAL APPEAL (DB) No. 1323 of 2017

Arising Out of PS. Case No.-23 Year-1997 Thana- SHIVSAGAR District- Rohtas

======================================================

Ramakant Paswan S/o Shivbilas Paswan Resident of Village- Harnagora, P.S.

Chenari, District Rohtas. ... ... Appellant

Versus

The State of Bihar ... ... Respondent

======================================================

with

CRIMINAL APPEAL (DB) No. 1379 of 2017

Arising Out of PS. Case No.-23 Year-1997 Thana- SHIVSAGAR District- Rohtas

======================================================

Ravindra Chaubey Son of Late Manmohan Chaubey, Resident of Village-

Belaspur, P.S.- Chenari, District- Rohtas. ... ... Appellant

Versus

The State of Bihar ... ... Respondent

======================================================

with

CRIMINAL APPEAL (DB) No. 1419 of 2017

Arising Out of PS. Case No.-23 Year-1997 Thana- SHIVSAGAR District- Rohtas

======================================================

Suresh Ram Son of Late Chirai Ram, Resident of Village-Belaspur, P.S.-

Chenari, District-Rohtas. ... ... Appellant

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

2/30

Versus

The State of Bihar ... ... Respondent

======================================================

with

CRIMINAL APPEAL (DB) No. 1452 of 2017

Arising Out of PS. Case No.-23 Year-1997 Thana- SHIVSAGAR District- Rohtas

======================================================

Arjun Ram Son of Late Sita Ram Ram, Resident of Village- Belaspur, P.S.-

Chenari, District- Rohtas.

... ... Appellant

Versus

The State of Bihar

... ... Respondent

======================================================

with

CRIMINAL APPEAL (DB) No. 59 of 2018

Arising Out of PS. Case No.-23 Year-1997 Thana- SHIVSAGAR District- Rohtas

======================================================

Shiva Nand Bind S/o Baban Bind, R/o Village- Bilaspur, P.S.- Chenari,

District- Rohtas.

... ... Appellant

Versus

The State of Bihar

... ... Respondent

=====================================================

Appearance :

(In CRIMINAL APPEAL (DB) No. 1435 of 2017)

For the Appellant/s: Mr. Ajay Kumar Thakur, Advocate

Mr. Manish Chandra Gandhi, Advocate

Mr. Samrjeet Singh, Advocate

Mr. Ritwaj Raman, Advocate

Ms. Vaishnavi Singh, Advocate

Mr. Ritwik Thakur, Advocate

Mr. Akash Ranjan, Advocate

For the Respondent/s: Mr. Abhimanyu Sharma, Addl PP

(In CRIMINAL APPEAL (DB) No. 1292 of 2017)

For the Appellant/s: Mr. Rakesh Narayan Singh, Advocate

For the Respondent/s: Ms. Shashi Bala Verma, Addl PP

(In CRIMINAL APPEAL (DB) No. 1293 of 2017)

For the Appellant/s: Mr. Rakesh Narayan Singh, Advocate

For the Respondent/s: Mr. Satya Narayan Prasad, Addl PP

(In CRIMINAL APPEAL (DB) No. 1323 of 2017)

For the Appellant/s: Mr. Binod Murari Mishra, Advocate

For the Respondent/s: Mr. Abhimanyu Sharma, Addl PP

(In CRIMINAL APPEAL (DB) No. 1379 of 2017)

For the Appellant/s: Mr. Kamlakant Pandey, Advocate

Ms. Deepti Pandey, Advocate

For the Respondent/s: Mr. Abhimanyu Sharma, Addl PP

(In CRIMINAL APPEAL (DB) No. 1419 of 2017)

For the Appellant/s: Mr. Baban Kumar, Advocate

Mr. Sanjay Kumar, Advocate

For the Respondent/s: Mr. Dilip Kumar Sinha, Addl PP

(In CRIMINAL APPEAL (DB) No. 1452 of 2017)

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

3/30

For the Appellant/s: Mr. Baban Kumar, Advocate

Mr. Sanjay Kumar, Advocate

For the Respondent/s: Mr. Abhimanyu Sharma, Addl PP

(In CRIMINAL APPEAL (DB) No. 59 of 2018)

For the Appellant/s: Ms. Soni Shrivastava, Advocate

Ms. Aditi Sharma, Advocate

Ms. Deepti Pandey, Advocate

For the Respondent/s: Mr. Dilip Kumar Sinha, Addl PP

======================================================

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD

and

HONOURABLE MR. JUSTICE SHAILENDRA SINGH

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Date : 19-04-2024

All these appeals have been preferred for setting aside

the judgment of conviction dated 20.09.2017 and order of sentence

dated 22.09.2017 passed by the learned Fast Track Court-I, Rohtas

at Sasaram in Sessions Trial No. 482 of 2000 which arose out of

Sheosagar (Baddi) P.S. Case No. 0023 of 1997 registered under

Section 364A of the Indian Penal Code (in short ‘IPC’).

2. On the basis of the written information (Exhibit ‘1’ of

the informant (PW-6)), a case bearing no. 0023 of 1997 was

instituted in Sheosagar Police Station against unknown accused

persons under Section 364A IPC. The investigation was taken up

and after investigation, the I.O. submitted first charge-sheet

bearing no. 08 dated 25.06.1997 and investigation was kept

pending against some of the accused. After investigation, police

submitted a supplementary chargesheet against the accused

persons under Sections 364A and 120B/34 IPC. Cognizance of the

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

4/30

offences was taken on 11.08.1997 whereafter the records were

committed to the court of sessions where the charges were framed

under Section 364A/34 IPC and explained to the accused persons-

appellants who pleaded not guilty and claimed to be tried.

3. On behalf of the prosecution, seven witnesses were

examined. The written report (Exhibit ‘1’), two letters written by

the victim (Exhibits ‘2’ and ‘2/1’) and signature of witnesses on

deposition under Section 164 CrPC (Exhibit ‘3’) were marked

without objection. Four letters were marked ‘X’ to ‘X/3’ for

identification.

4. After closure of prosecution evidence, the statement

of accused persons were recorded under Section 313 CrPC. The

defence neither examined any witness nor produced any

documentary evidence.

5. The learned trial court having analysed the

prosecution evidences, held that the victim (PW-7) had not stated

regarding the complicity of Kalawati Devi (accused no. 3), Shri

Bhagwan Tiwari (accused no. 10) and Dev Raj Tiwari (accused no.

11) in his kidnapping and there is no whisper regarding their

participation in this occurrence. Hence, accused nos. 3, 10 and 11

were not found guilty and they have been acquitted of the charges

levelled against them. The other accused persons, namely, Shiva

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

5/30

Nand Bindh (A1), Ravindra Choubey (A2), Arjun Ram (A4),

Lalan Paswan s/o Bali Ram Paswan (A5), Lalan Paswan s/o Late

Ram Charitar Paswan (A6), Ramakant Paswan (A7), Lok Nath

Paswan (A8) and Suresh Ram (A9) have been held guilty for the

offences under Section 364A/34 IPC. Hence, they have been

convicted for the said offences and ordered to undergo rigorous

imprisonment for life. No fine has been imposed by way of

sentence.

Analysis of Prosecution Evidences

6. Manoj Sah (PW-1) and Upendra Sah (PW-2) have

been declared hostile as they had not supported the prosecution

case. Ranjan Tiwari, son of Rameshwar Tiwari (PW-3) came to

know about the kidnapping of Om Prakash Pandey (PW-7) on the

next day but he did not suspect anyone and he did not identify any

of them.

7. Prabha Devi (PW-4) wife of Harendra Prasad has

stated that she was not investigated by police. PW-4 has also been

declared hostile.

8. Shiv Kumari Devi (PW-5) is the mother of the victim

who has stated that her son Om Prakash had gone to see the drama

and at 03:00 A.M. (morning), he was going to sleep with his father

at dalan. PW-5 has stated that when her son was knocking the door

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

6/30

of dalan, some persons came to him asking about the road on

which her son went to show them the road. She claimed that her

son was taken away from there. In the morning she started search

of her son then her husband told her that perhaps, her son has been

taken away. This witness is not an eye witness and she has stated

on the basis of what she was told by her husband.

9. Ram Bachan Pandey (PW-6) is the father of the

victim (PW-7). He has stated that the occurrence is of the night of

27.03.1997. He was sleeping at his dalan and the villagers were

playing a drama in the village. His son Om Prakash @ Mantu had

gone to see the drama and about 02:30 to 03:00 A.M. (night

hours), he came at the dalan and asked PW-6 to open the door.

PW-6 opened the door, in the meantime, he heard that some people

were saying to show them the road going to Raipur village and his

son (PW-7) went to show them the road. PW-6 waited for his son

at dalan for half an hour and when he did not return, he closed the

door thinking that his son might have gone to sleep in the female

portion. PW-6 also slept. In the morning at 08:00 A.M., he got

information that Mantu (PW-7) had not taken tea so he should be

sent whereafter the search of Mantu started and on not finding

him, information was given to Baddi Police Station in the evening

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

7/30

at 3-3:30 P.M. PW-6 has proved the written information which was

in his writing and signature as Exhibit ‘1’.

10. PW-6 has stated in his examination-in-chief that the

kidnappers of Mantu had sent him six letters demanding a sum of

Rs.4,00,000/- as ransom, at last they had asked for Rs.2,00,000/-.

He claimed that out of those six letters, two letters were written by

his son Mantu in his hand writing and signature. He proved those

two letters in the writing of PW-7 as Exhibit ‘2’ and ‘2/1’

respectively. The other four letters were said to be in the hand

writing of the kidnappers which were kept for identification as

Exhibits ‘X/A’ and ‘X/B’. PW-6 claimed that with the letter dated

04.04.1997 demanding the ransom, a half cut note of Rs.2/- was

also sent with instruction that the ransom amount be handed over

to the person who will bring the another part/portion of the note of

Rs.2/-. PW-6 has stated that after 10-11 days on 07.04.1997, his

son was recovered by police from village Turki, P.S. Simri in the

raid. One person, namely, Shiva Nand Bind of Village Bilaspur

was also arrested. PW-6 came to know that behind the occurrence,

the co-villagers Dev Raj Tiwari, Shri Bhagwan Tiwari and

Ravindra Choubey with 3-4 other persons were involved. He was

told about 11 persons. In paragraph ‘5’ of his deposition, PW-6 has

stated that Mantu on his return did not tell the name of kidnappers,

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

8/30

this witness has then on his own stated that he does not remember

whether Mantu had told him the name of the kidnappers or not. In

court, PW-6 identified the accused Dev Raj Tiwari but did not

identify the another accused Ravindra Choubey.

11. In his cross-examination, PW-6 has stated that his

son was not recovered in his presence. He has further stated in

paragraph ‘8’ of his evidence that police had not told him anything

about any of the accused persons. In paragraph ‘11’ of his cross-

examination, he has stated that he had not tried to know the name

of the accused persons who were involved in kidnapping at his

own level.

12. The victim, Om Prakash Pandey (PW-7), is the star

witness of this case. PW-7 has stated in his examination-in-chief

that when he reached at his dalan alone and knocked the door, his

father opened the door and went to sleep. According to him, in the

meantime, four persons came at his door and asked him about the

road going to village Raipur Chaur, on this, he went to show them

the road at a distance of about 100 yards South to his dalan, he

showed them the road but the moment he wanted to take a turn

towards his dalan, they gagged his mouth and brandish a pistol at

him. They threatened PW-7 to kill if he would not accompany

them. PW-7 claimed that he went on mountain with them. They

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

9/30

were beating him and had placed a cloth at his eyes. They took

him to a mountain where he was kept for the whole day. They

were talking that a sum of Rs.4 lakhs is to be taken from his father.

In the evening, they took him down to a village where he was

given food to eat. He was kept in the village for whole night, on

the next night, he was taken to another village where he was kept

for 10 days. Kidnappers were talking themselves that they would

have no difficulty in getting money. Money would be provided

through Dev Raj Tiwari and Shri Bhagwan Tiwary and Ravindra

Choubey will do everything fine. PW-7 states that the kidnappers

were talking about themselves taking names of Arjun Chamar,

Suresh Chamar, Lok Nath, Ramakant and Lalan Paswan, he did

not remember other names. In paragraph ‘2’ of his evidence, PW-7

has stated that police had conducted a raid in the said village and

he was recovered from a house. One Shiva Nand Bind who was

keeping eyes over him was also arrested and police had seized one

gun and three cartridges from the said place.

13. In paragraph ‘3’, PW-7 has stated that police brought

him to Chenari Police Station, later on, he came to know that he

had been recovered from village Turki. His statement was recorded

in Chenari Police Station. On the next day, he was brought before

the Dy.S.P. from where he was taken to Sheosagar Police Station

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

10/30

and there also Darogaji had inquired from him. In paragraph ‘4’ of

his examination-in-chief, this witness has stated that the I.O. had

brought him to the court for recording of statement and he had

given his statement before the Magistrate after reading the same.

He identified his signature which was marked as Exhibit ‘3’.

14. In course of his cross-examination, this witness has

stated that he came to know about the name of village from public

after the raid was conducted but he cannot say from whom he

came to know about the name of the village. In paragraph ‘10’ of

his cross-examination, he has stated that at the time of his

recovery, there were about 20 policemen and 100 people from the

public. He has stated that police had brought him and the arrested

person with the seized arms to police station. Public had not gone

to the police station and he did not remember that in his presence

police had taken signature of any member of the public or the

accused.

15. He has further stated that Bilaspur village is situated

at 12-13 kilometers from his village. Ravindra Choubey accused is

married to the nanad of his sister and is a resident of village

Bilaspur. He had never gone to the village Bilaspur. He had seen

Ravindra Choubey after 2-4 days of his kidnapping in village

Turki. He states that he was brought to Turki village in night, his

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

11/30

eyes were tied, his eyes were opened sometime, he was made to sit

and urinate in a pot in the room. Shiva Nand Bind was always

there with him and Lalan Paswan was coming sometime to serve

him food, he used to sit for half an hour and he is a resident of U.P.

He had seen the face of Lalan Paswan. PW-7 has stated that except

the face of Lalan Paswan of village Turki, he had seen the face of

Ravindra Choubey. He did not know the father’s name and village

name of Lalan Paswan of Village Bilaspur. Lok Nath Paswan,

Shiva Nand Bind, Arjun Ram, Suresh Ram and Ramakant Paswan.

16. In paragraph ‘14’ of his cross-examination, he has

stated that Shiva Nand Bind used to sleep in his room with him

sometime but he never tried to escape from the room, he never

raised any hulla, sometimes, he was being taken in the field to

defecate in the night at a distance of 100 yards from the said house

and at that time, his eyes were open. He was being taken in the

night at 12-01:00 in the filed and when he used to sit to defecate,

from both the sides at a distance of 10-10 steps, the accused

persons kept standing there with gun. He never tried to escape

from there. He was being provided a blanket in the room.

17. PW-7 has further stated that when police conducted

raid in the evening at 04-05:00 P.M., Shiva Nand Bind was with

him. He did not try to escape. Shiva Nand Bind did not ask from

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

12/30

the roof (kotha) as to who was knocking the door. PW-7 states in

his cross-examination that he cannot say whether villagers had

come on seeing the police. He came down first and 20 minutes

thereafter Shiva Nand Bind came with his hands up. Within 10-20

minutes, about 100 villagers came at the door. In his cross-

examination, he states that he was straightaway taken to Chenari

Police Station where he had given his statement at 08:00 pm

(night) and put his signature. For the whole night, he stayed in

Chenari Police Station. Prior to that Sheosagar Police had also

arrived there. In paragraph ‘16’ of his cross-examination, he has

stated that police never told him to come to identify the accused in

parade.

18. In paragraph ‘20’ of his cross-examination, PW-7

has stated that the four persons who had kidnapped him were

unknown. In paragraph ‘22’ of his evidence, he has stated that

neither in his statement before police nor the Judicial Magistrate

he had named Shri Bhagwan Tiwari and Dev Raj Tiwari.

Submissions on behalf of the Appellants

19. Learned counsel for the appellants have assailed the

judgment under appeal (hereinafter referred to as the ‘impugned

judgment’) on various grounds. It is submitted that the solitary

witness of this case, who is also a star witness, has not been able to

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

13/30

prove the place of his recovery. He has not identified the four

persons who had kidnapped him and in this case, because the

Investigating Officer (I.O) has not been examined by the

prosecution, the prosecution case that PW-7 was recovered from

village Turki could not be duly proved and non-examination of

I.O. in this case has caused prejudice to the defence. Learned

counsel further submits that neither PW-6 nor PW-7 has stated that

there was any threat to the life of PW-7 and at any point of time,

PW-7 was threatened to be killed if ransom amount is not paid,

thus, in view of the catena of judgments of the Hon’ble Supreme

Court, a case under Section 364A IPC is not proved beyond all

reasonable doubts.

20. Learned counsel further submits that in this case,

PW-6 has introduced two letters said to have been written by PW-7

but PW-7 has never stated about writing of any letter at the

instance of the kidnappers. His statement under Section 164 CrPC

has not been duly proved and marked exhibit and it is only the

signature of PW-7 which has been marked as Exhibit ‘3’. The four

other letters which are said to have been written by the kidnappers

could not be exhibited in course of trial.

21. Learned counsel further submits that in this case, the

attention of the accused persons-appellants were not drawn

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

14/30

towards the incriminating materials which were brought by the

prosecution in course of their statements under Section 313 Cr.P.C.

Thus, the accused persons were deprived of a valuable right

conferred upon them under Section 313 Cr.P.C. to explain

themselves.

Consideration

22. We have heard learned counsel for the appellants and

learned Additional P.P. for the State. The trial court records have

been placed before us and we have perused the same.

23. From the prosecution evidences placed before us, we

find that the victim Om Prakash Pandey has deposed as PW-7. He

is the star witness of this case. His father, namely, Ram Bachan

Pandey is the informant and has deposed as PW-6. We will first

deal with the evidences of PW-6 and PW-7 and then this Court will

examine as to whether the evidence of PW-6 and PW-7 would

prove the guilt of the accused-appellants beyond all reasonable

doubts so as to maintain their conviction under Sections 364A/34

IPC. According to PW-6, when his son (PW-7) knocked the door

of the dalan at 2:30-3:00 am (morning) and asked him to open the

door, he opened the door and heard that someone was telling his

son to show him the route leading to Raipur village and his son

went with that person. PW-6 has not stated to have seen that

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

15/30

person with whom his son had gone. He has also not stated about

the number of persons with whom PW-7 had gone to show them

the route. After waiting for half an hour when his son did not

return, PW-6 did not go in search of him or to enquire about him.

This cannot be a natural conduct of a father, particularly when his

son has gone with an unknown person in the midnight. PW-6 has

stated that he closed the door after half an hour and thought that

his son had gone to sleep in the family portion of the house but this

witness has not stated that there was any separate door for the

family portion and the I.O. has not been examined in this case,

therefore, the description of the house and the dalan of PW-6 has

not come in the course of trial. In the morning at 8:00 am, he got

information from the family portion of the house that the victim

boy had not gone to take his tea, whereafter PW-6 went in search

of his son.

24. It has come in evidence that on the said date, a

drama was being played in the village in which a large number of

villagers had assembled to watch the drama, the victim son of PW-

6 had also gone to watch the drama. From this part of the

evidence, it appears that the statement of PW-6 that his son

returned at 2:30-3:00 am and knocked the door of the dalan to

open is doubtful. Had he returned in the midnight, knocked the

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

16/30

door of the dalan and PW-6 opened the door but then he heard

someone asking his son to show him the road, being father of the

boy (PW-7), PW-6 would have definitely tried to know as to who

are those persons with whom PW-7 had gone. It is highly doubtful

that in such circumstance, when the son has gone with someone

unknown in the midnight, the father would close the door after half

an hour and would go for a sleep.

25. This Court further finds that the information with

regard to kidnapping of the boy was given to the Police Station on

28.03.1997 at 6:30 pm i.e. with a delay of at least 10 hours. PW-6

submitted a written report to the Officer-in-Charge of Baddi Police

Station in which his statement was that his son reached dalan at

3:00 am and asked him to open the door whereupon PW-6 wanted

to open the door but heard the voice of some persons who asked

his son to show them the road leading to Raipur village. In his

written report, PW-6 did not say that he opened the door and then

closed it after waiting for his son for half an hour. Therefore, this

Court finds that in course of trial, PW-6 has made some deviations

from his statement in the written report, he is not consistent.

26. In further part of his evidence, PW-6 has stated that

he got six letters for ransom. Out of six letters, two letters were

written in the hand of his son and the rest were written by the

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

17/30

kidnappers. The two letters written by his son (PW-7) have been

proved as Exhibit ‘2’ and ‘2/1’ respectively, there is no proof of

dispatch or mode of service of letters. PW-7 has not stated in his

examination-in-chief that the kidnappers asked him to write a

letter for ransom. PW-7 has not stated that who were the persons

with whom he had gone to show the road leading to Raipur

village. PW-7 has not identified any of these appellants present

with those persons who had requested PW-7 to show them Raipur

Road. As regards other four letters, PW-6 could not prove those

letters and the mode of receipt of the letters. He talks of receipt of

one half-torn note of Rs. 2 but neither any of the letters nor half-

torn note were seized by the I.O. in course of investigation nor

those were proved in course of trial. Thus, the statement of PW-6

with regard to receipt of six letters and a half-torn note of Rs. 2 is

wholly unreliable and no credence may be given to these

statements.

27. PW-6 has further stated that after 10-11 days of the

occurrence, Police had recovered his son from village Turki under

Police Station Chenari from the house of Lalan Paswan. He came

to know about this from Police but it is not known as to who was

the said Police Officer who disclosed it to PW-6. Prosecution has

neither proved the description of the house of Lalan Paswan in

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

18/30

village Turki or arrest of Shiva Nand Bind from the said place. No

recovery memo of the victim boy has been proved in course of

trial. In paragraph ‘5’ of his evidence, PW-6 has clearly stated that

on his return, Mantu (victim boy) had not told him about the

accused persons, this witness has later on said that he does not

remember whether Mantu had told him the name of the kidnappers

accused or not. This witness did not identify the accused who were

not in attendance, he also failed to identify Rabindra Chaubey who

was present in court. He identified only Dev Raj Tiwary because

he was his co-villager. He has admitted in his cross-examination

that he had seen the police report and had come to know about the

accused. He had not tried to find out as to who were involved in

the kidnapping of his son. It is evident from the evidence of PW-6

that the latter part of his testimony is based on his information

derived from Police. He has not stated that any of the appellants

ever tried to contact him and demanded ransom by keeping his son

under threat of life and hurt.

28. So far as PW-7 is concerned, he is himself the

victim. He has disclosed in course of trial that four persons had

come to the door of the dalan and asked him about the road going

to Raipur village. PW-7 has not identified those four persons and it

is not the case of the prosecution that these appellants or anyone of

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

19/30

them were either involved in taking away of PW-7 or were seen

with those four persons who had asked PW-7 to show them the

Raipur Road.

29. PW-7 has stated that he heard the kidnappers talking

about a demand of Rs. 4 lakhs and they hoped that they would get

money through Dev Raj Tiwary and Bhagwan Tiwary. PW-7 also

heard the kidnappers saying that Rabindra Chaubey has done

everything right. PW-7 heard talking them, taking their name as

Arjun Chamar, Suresh Chamar, Lok Nath, Ramakant and Lalan

Paswan. He did not remember other names. PW-7 has stated that

in course of raid conducted by Police, the person who was keeping

eyes on him, namely, Shiva Nand Bind was arrested from a house

and in course of search of the said house, Police seized one gun

and three cartridges but this Court finds that no seizure list of the

gun and three cartridges has been proved in course of trial. Even

the arrest memo of Shiva Nand Bind, the description of the house,

from which PW-7 was recovered, and Shiva Nand Bind was

arrested has not been proved in course of trial.

30. This Court further finds that according to PW-7,

after his recovery, he along with Shiva Nand Bind was taken to

Chenari Police Station on 07.04.1997 where the statement of PW-7

was recorded, he was asked to read his statement. He had stayed

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

20/30

for the whole night in Chenari Police Station. On the next day, he

was produced before the Dy.S.P. and thereafter he was brought to

Sheosagar Police Station where also the Darogaji had enquired

from him. The first statement of PW-7 was recorded in Chenari

Police Station but that has not been placed in course of trial. He

was also enquired at Sheosagar Police Station but even that has not

been brought by way of evidence. In such circumstance, this Court

is of the considered opinion that the prosecution has not come out

clean and the immediate information which was furnished by PW-

7 to Chenari Police Station has been withheld. He met his father

(PW-6) next day but according to PW-6 his son (PW-7) had not

disclosed the name of the kidnappers. The Police officer of

Chenari Police Station who recorded the statement and the I.O. of

the case from Sheosagar Police Station have not been examined in

course of trial. Non-examination of I.O. has definitely caused

prejudice to the appellants because in his absence, the defence was

unable to elicit important information as to what were the earliest

version of PW-7 before Police.

31. This court further finds that PW-7 was produced

before the learned Magistrate for recording his statement under

section 164 Cr.P.C. only on 29.04.1997. Thus, after a delay of 22

days, the statement of the victim was recorded by the learned

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

21/30

Magistrate. Prosecution has only proved the signature of PW-7 on

the statement under Section 164 Cr.P.C. It seems that no attempt

was taken to get exhibited the statement under Section 164 Cr.P.C.

in accordance with law. PW-7 has stated in his cross-examination

that he had made statement in court on the direction of Daroga and

he had come to know about the name of village Turki from public

but he does not know the person from whom he came to know the

name of village Turki. PW-7 has reiterated in paragraph ‘11’ that

Police had recorded his statement at Chenari Police Station and he

had put his signature on the paper on which statement had been

recorded.

32. From the evidence of PW-7, it is clear that he does

not state about the house from which he was recovered. At one

place he has stated that at the time of his recovery about 20

Policemen and 100 members of the public had assembled but this

Court finds that in the trial the prosecution has not brought any

witness much less any evidence to prove that it was the house of

Lalan Paswan of village Turki from where the recovery was made.

PW-7 has stated that Lalan Paswan used to serve him food

sometimes and was sitting for half an hour in the room, he was

resident of U.P. In paragraph ‘12’ of his evidence, he has stated

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

22/30

that he had not seen the face of Shiva Nand Bind during the said

period and till now.

33. To this Court, it appears that PW-7 would fall in the

category of witness who would neither be wholly reliable nor

wholly unreliable, therefore, his evidence is required to be

examined very carefully and with all circumspection and care. The

fact that he made statement before Chenari Police immediately

after his recovery but that has been withheld by the prosecution,

unavailability of the description of the house from where recovery

was made, there being no arrest memo of Shiva Nand Bind

showing him apprehended from the said house and then there

being no proof of seizure of gun and three cartridges, this Court

would be of the opinion that it would not be safe to base

conviction of the appellants on the sole testimony of PW-7.

34. In the case of Shaik Ahmed vs. State of Telangana

reported in (2021) 9 SCC 59, the Hon’ble Supreme Court has dealt

with the essential ingredients of Section 364A IPC. This Court

would reproduce the relevant paragraphs 12 to 15 of the judgment

hereunder for a ready reference:-

“12. We may now look into section 364-A to find

out as to what ingredients the Section itself contemplate for

the offence. When we paraphrase Section 364-A following

is deciphered:

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

23/30

(i) “Whoever kidnaps or abducts any

person or keeps a person in detention after such

kidnapping or abduction”

(ii) “and threatens to cause death or hurt

to such person, or by his conduct gives rise to a

reasonable apprehension that such person may be

put to death or hurt,

(iii) or causes hurt or death to such

person in order to compel the Government or any

foreign State or international inter- governmental

organisation or any other person to do or abstain

from doing any act or to pay a ransom”

(iv) “shall be punishable with death, or

imprisonment for life, and shall also be liable to

fine.”

The first essential condition as incorporated in

Section 364-A is “whoever kidnaps or abducts any person or

keeps a person in detention after such kidnapping or

abduction”. The second condition begins with conjunction

“and”. The second condition has also two parts, i.e., (a)

threatens to cause death or hurt to such person or (b) by his

conduct gives rise to a reasonable apprehension that such

person may be put to death or hurt. Either part of above

condition, if fulfilled, shall fulfill the second condition for

offence. The third condition begins with the word “or”, i.e.,

or causes hurt or death to such person in order to compel the

Government or any foreign State or international inter-

governmental organisation or any other person to do or

abstain from doing any act or to pay a ransom. Third

condition begins with the words “or causes hurt or death to

such person in order to compel the Government or any

foreign state to do or abstain from doing any act or to pay a

ransom”. Section 364-A contains a heading “kidnapping for

ransom, etc.” The kidnapping by a person to demand ransom

is fully covered by Section 364-A.

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

24/30

13. We have noticed that after the first condition the

second condition is joined by conjunction “and”, thus,

whoever kidnaps or abducts any person or keeps a person in

detention after such kidnapping or abduction and threatens to

cause death or hurt to such person.

14. The use of conjunction “and” has its purpose and

object. Section 364-A uses the word “or” nine times and the

whole section contains only one conjunction “and”, which

joins the first and second condition. Thus, for covering an

offence under Section 364-A, apart from fulfillment of first

condition, the second condition, i.e., “and threatens to cause

death or hurt to such person” also needs to be proved in case

the case is not covered by subsequent clauses joined by “or”.

15. The word “and” is used as conjunction. The use

of word “or” is clearly distinctive. Both the words have been

used for different purpose and object. Crawford on

Interpretation of Law while dealing with the subject

“disjunctive” and “conjunctive” words with regard to

criminal statute made following statement:

“...The court should be extremely reluctant in a

criminal statute to substitute disjunctive words for

conjunctive words, and vice versa, if such action

adversely affects the accused.”

35. In the present case there is no eyewitness to the

kidnapping of PW-7, the whole case is based on circumstantial

evidences and further there is no clinching evidence with regard to

the participation of the appellants in the kidnapping and detention

of PW-7 for ransom. The prosecution is required to establish a

chain of unbroken events irresistibly pointing to the guilt of the

accused and none other. In this regard, the paragraph ‘14’ and ‘15’

of the judgment rendered by the Hon’ble Supreme Court in the

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

25/30

case of Rajesh and Another vs. State of Madhya Pradesh

reported in 2023 SCC OnLine SC 1202 are being reproduced

hereunder for a ready reference.

“14. A conspectus of the prosecution's case clearly reveals that it is

poised entirely on circumstantial evidence as there was no

eyewitness to the kidnapping and murder of Ajit Pal. In a case

resting on circumstantial evidence, the prosecution must establish

a chain of unbroken events unerringly pointing to the guilt of the

accused and none other [See C. Chenga Reddy v. State of A.P.

1

,

Ramreddy Rajesh Khanna Reddy v. State of A.P.

2

, Majenderan

Langeswaran v. State (NCT of Delhi)

3

and Sharad Birdhichand

Sarda v. State of Maharashtra

4

]. As long back as in the year 1952,

in Hanumant v. State of Madhya Pradesh

5

, a 3-Judge Bench of this

Court observed as under:

‘It is well to remember that in cases where the evidence is of

a circumstantial nature, the circumstances from which the

conclusion of guilt is to be drawn should in the first instance

be fully established, and all the facts so established should

be consistent only with the hypothesis of the guilt of the

accused. Again, the circumstances should be of a

conclusive nature and tendency and they should be such as

to exclude every hypothesis but the one proposed to be

proved. In other words, there must be a chain of evidence so

far complete as not to leave any reasonable ground for a

conclusion consistent with the innocence of the accused and

it must be such as to show that within all human probability

the act must have been done by the accused.’

15. Again, in Padala Veera Reddy v. State of Andhra Pradesh

6

, this

Court affirmed that when a case rests solely upon circumstantial

evidence, such evidence must satisfy the following tests:

1. (1996) 10 SCC 193

2. (2006) 10 SCC 172

3. (2013) 7 SCC 192

4. (1984) 4 SCC 116

5. (1952) 2 SCC 71

6. 1989 Supp (2) SCC 706

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

26/30

‘1. The circumstances from which an inference of guilt is

sought to be drawn must be cogently and firmly

established;

2. Those circumstances should be of a definite tendency

unerringly pointing towards guilt of the accused;

3. The circumstances, taken cumulatively, should form a

chain so complete that there is no escape from the

conclusion that within all human probability the crime was

committed by the accused and none else; and

4. The circumstantial evidence in order to sustain

conviction must be complete and incapable of explanation

of any other hypothesis than that of the guilt of the

accused and such evidence should not only be consistent

with the guilt of the accused but should be inconsistent

with his innocence.”

36. Yet another aspect of the matter remains to be

discussed. It appears that when the statements of the accused were

recorded under Section 313 Cr.P.C., their attention was not drawn

towards all the incriminating circumstances and the materials

which were brought by the prosecution against them. All the

accused were asked the same and one question repeatedly. For the

sake of ready reference, this Court would reproduce one sample

copy of the statement under Section 313 Cr.P.C. as under:-

“iz”u %& D;k xokgh dk cs;ku lquk gS ?

mÙkj %& th gk¡A

iz”u %& vkiyksxks ds fo:) lk{; gS fd fnukad 27@3@97 dh jk=h

esa vkse izdk”k ik.Ms; mQZ eUVq vius xkao esa Mªkek ns[kus x;k Fkk ,oa

Mªkek ns[kdj jkf= lqcg 2 ½ -3 cts fnukad 28-3-97 dks ?kj okil

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

27/30

vk;k rks vkiyksx ,d lkekU; vk”k; ls vxzlj.k esa mldk vigj.k

dj fn;k rFkk fQjkSrh dh ek¡x djus yxs ?

mÙkj %& th ughaA

iz”u %& ;g Hkh lk{; gS fd iqfyl }kjk vkseizdk”k ik.Ms; mQZ eUVq

dks yyu ikloku ds ?kj ls dqN vigj.kdrkZvks ds lkFk cjken fd;k

x;k ?

mÙkj %& th ughaA

iz”u %& lQkbZ esa dqN dguk gS ?

mÙkj %&”

37. From a bare reading of the statement under Section

313 Cr.P.C. put to the accused, it would appear that many

incriminating circumstances were not at all put to them. For

example, in case of Rabindra Chaubey, PW-7 has stated that he

had heard the kidnappers talking about him that he had done

everything fine. This incriminating circumstance was not put to

Rabindra Chaubey. Similarly, while putting question no.2, a vague

question was put to the accused persons saying that Om Prakash

Pandey @ Mantu was recovered from the house of Lalan Paswan

with some kidnappers. Who is that Lalan Paswan and who were

those kidnappers said to have been arrested from his house are not

disclosed. While putting question to Lalan Paswan of village

Turki, again a stereotype question was put to him and he was told

that Om Prakash Pandey @ Mantu has been recovered from the

house of Lalan Paswan with some kidnappers. If it was his house

from where the recovery was made, the prosecution would have

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

28/30

clearly informed him that it was his house from where the

recovery was made but that was not done. The circumstance that

Shiva Nand Bind was arrested from the house while recovering

PW-7 and the Police had also seized one gun and three cartridges

were not put to the accused persons.

38. The Hon’ble Supreme Court as well as this Court

has repeatedly highlighted the importance of a statement under

Section 313 Cr.P.C. and the purpose behind giving that opportunity

to an accused. In this regard, the Hon’ble Supreme Court in the

case of Sukhjit Singh Vs. State of Punjab reported in (2014) 10

SCC 270 has, while putting emphasis on the compliances with the

requirement of Section 313 Cr.P.C., observed in paragraph ‘12’ and

‘13’ as under:-

“12. In Hate Singh Bhagat Singh v. State of Madhya Bharat

4

,

Bose, J. speaking for a three-Judge Bench highlighting the

importance of recording of the statement of the accused under the

Code expressed thus: (AIR pp. 469-70, para 8)

“8. Now the statements of an accused person recorded

under Sections 208, 209 and 342, Criminal Procedure

Code are among the most important matters to be

considered at the trial. It has to be remembered that in

this country an accused person is not allowed to enter

the box and speak on oath in his own defence. This may

operate for the protection of the accused in some cases

but experience elsewhere has shown that it can also be a

powerful and impressive weapon of defence in the

hands of an innocent man. The statements of the

accused recorded by the Committing Magistrate and the

Sessions Judge are intended in India to take the place of

what in England and in America he would be free to

state in his own way in the witness box.”

4. AIR 1953 SC 468: 1953 Cri LJ 1933

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

29/30

13. The aforesaid principle has been reiterated in Ajay

Singh v. State of Maharashtra

5

in following terms: (SCC pp. 347-

48, para 14)

“14. The word ‘generally’ in sub-section (1)(b) does not

limit the nature of the questioning to one or more

questions of a general nature relating to the case, but it

means that the question should relate to the whole case

generally and should also be limited to any particular

part or parts of it. The question must be framed in such a

way as to enable the accused to know what he is to

explain, what are the circumstances which are against

him and for which an explanation is needed. The whole

object of the section is to afford the accused a fair and

proper opportunity of explaining circumstances which

appear against him and that the questions must be fair

and must be couched in a form which an ignorant or

illiterate person will be able to appreciate and

understand. A conviction based on the accused's failure

to explain what he was never asked to explain is bad in

law. The whole object of enacting Section 313 of the

Code was that the attention of the accused should be

drawn to the specific points in the charge and in the

evidence on which the prosecution claims that the case

is made out against the accused so that he may be able

to give such explanation as he desires to give.”

39. In the case of Sharad Birdhichand Sarda vs. State

of Maharashtra reported in (1984) 4 SCC 116, the Hon’ble

Supreme Court has observed in paragraph 145 as under:-

“145. It is not necessary for us to multiply authorities on

this point as this question now stands concluded by

several decisions of this Court. In this view of the

matter, the circumstances which were not put to the

appellant in his examination under Section 313 of the

Criminal Procedure Code, 1973 have to be completely

excluded from consideration”

5. (2007) 12 SCC 341 : (2008) 1 SCC (Cri) 371

Patna High Court CR. APP (DB) No.1435 of 2017 dt.19-04-2024

30/30

40. On a cumulative reading of the evidences discussed

hereinabove, this Court is of the considered opinion that prosecution has

failed to bring cogent evidences to prove the guilt of the accused-

appellants beyond all reasonable doubts. The essential ingredients of the

offence under Section 364A IPC is lacking and the link between the

kidnapping of PW-7 and role of the accused-appellants in connection

with the occurrence in question could not be fully established so as to

reach to a conclusion of guilt against the appellants.

41. In result, the impugned judgment of the trial court is set

aside. The appellants are acquitted of the charges giving them benefit of

doubt.

42. The appellants in the above appeals except Cr. Appeal

(DB) No. 1435 of 2017 and Cr. Appeal (DB) No. 59 of 2018 are on bail.

They are discharged from the liability of their bail bonds.

43. The appellants, Lalan Paswan, Son of Late Ram Charitar

Paswan (Cr. Appeal (DB) No. 1435 of 2017) and Shiva Nand Bind (Cr.

Appeal (DB) No. 59 of 2018) are said to be in custody. They shall be

released forthwith if not wanted in any other case.

44. All the appeals are allowed.

Sushma2/Rishi-

(Rajeev Ranjan Prasad, J)

(Shailendra Singh, J)

AFR/NAFR AFR

CAV DATE 01.03.2024

Uploading Date 19.04.2024

Transmission Date 19.04.2024