Patna High Court
Chandan Kumar vs The State Of Bihar on 16 May, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1238 of 2016
Arising Out of PS. Case No.-134 Year-2010 Thana- BARIYARPUR District- Munger
======================================================
Chandan Kumar Son of Late Sital Rajak Resident of Village-Pariya,
Bariyarpur, P.S. Bariarpur, Distt- Munger ... ... Appellant/s
Versus
The State Of Bihar ... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Manoj Kumar Singh, Adv.
Mr. Naresh Dass, Adv.
For the Respondent/s : Mr. Sri Ajay Mishra
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
CAV JUDGMENT
(Per: HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA)
Date : 16-05-2025
The present appeal under Section 374(2) read with Section
389(1) of the Code of Criminal Procedure, 1973 (hereinafter
referred to as 'Cr.P.C.') has been preferred against the judgment
and order of conviction and sentence dated 28.09.2012 and
29.09.2012
respectively, passed by the Court of Adhoc Additional
Sessions Judge-IV, Munger in Sessions Case No.261 of 2011,
arising out of Bariarpur P.S. Case No.134 of 2010, whereby and
whereunder the appellant has been convicted under Section 364A
of the Indian Penal Code (hereinafter referred to as ‘IPC‘) and has
been sentenced to undergo rigorous imprisonment for life with fine
of Rs.10,000/- and in default thereof, he has been directed to
undergo simple imprisonment for six months.
2. The short facts of the case based on the self-statement
of the informant recorded on 24.12.2010 at 10.00 pm is that on
24.12.2010 at 8.00 pm the informant Vishwanath Ram,. S.I., P.S.-
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Bariarpur, District-Munger received a secret information that
five-six miscreants have kidnapped a boy and kept him in
captivity at village-Paria for the purpose of demanding ransom,
with the threat that if the ransom amount would not be paid till
night then he would be done to death. After making an entry of
the said secret information in the station diary, the informant
proceeded to village-Paria along with police personnel. As soon
as the informant and the members of the raiding party reached
near the house of one Arun Yadav, they heard a groaning sound
of a boy whereupon they saw 4-5 persons fleeing away in the
torch light and upon chase, one person was apprehended by the
informant who was sitting besides the boy who was crying in
pain. However, the other persons taking advantage of the
darkness and managed to flee away.
3. It is further alleged that apprehended person aged
about 25 years disclosed his name as Chandan Kumar
(appellant) and the other boy aged about 21 years, who was the
victim, disclosed his name as Dayanand Kumar. He disclosed
that the apprehended accused along with other 3-4 persons had
kept him in confinement in the Gali (lane) for the purpose of
extorting money and were even assaulting him. He got to know
the names of the other accused persons as they were taking
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names of Chandanwa, Pankaj, Bhutkani, Golu and Vicky. The
informant further alleges that in the presence of two villagers,
namely, Nawal Kishore Yadav and Chamal Lal Yadav the
accused Chandan Kumar was searched whereupon, two cheques
of SBI of an amount of Rs.40,000/- and 20,000/- in the name of
Chandan Kumar issued by Dayanand Kumar (victim) on
24.12.2010, was recovered from the left pocket of the shirt of
the accused Chandan Kumar. Besides, a samsung mobile, school
identity card of Chandan Kumar, Airtel Sim were also recovered
and a seizure list was prepared signed by the witnesses. The
victim Dayanand Kumar further disclosed that he deals in the
business of paddy and has a rice mill. He has also revealed that
the accused Chandan Kumar and his accomplices assaulted him
with the back portion of the weapon, by elbow, fists and slaps
on his eye, chest and knee due to which he got injured. They
even tried to choke him by pressing his neck. The victim further
stated that they even threatened his family members at
Lakhisarai of dire consequences in case Rs.40,000/- was not
paid till the night. It is stated that on 23.12.2010 i.e. a day prior
to the occurrence while the informant was going to his maternal
uncle’s house in between 11.00 to 11.30, he was pulled into a
lane by the accused persons and upon protest, he was confined
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in a room within a boundary in the lane and then the accused
persons had snatched away other articles from him including
some cash, mobile and gold chain. Further disclosure made by
the victim is that he even manged to escape from the clutches of
the miscreants and ran to his grandmother’s house but Pankaj
Yadav and Chandan Kumar went and threatened his
grandmother and she in fear, let the victim go out of house. It
was stated by the victim that a total demand of Rs.1 lac was
made from him, out of which, they had forcibly taken his
signature on two cheques amounting to a total tune of
Rs.60,000/- and then they had further demanded Rs.40,000/-
from his family members.
4. On the basis of the aforementioned farbdeyan,
Bariarpur P.S. Case No.134 of 2010 was instituted on
25.12.2010 under Sections 364A, 384, 387, 342, 323 and 414
IPC. The FIR was instituted against the present appellant
Chandan Kumar and four others. After investigation, charge-
sheet was submitted on 22.02.2011 against the appellant and
two others being Vicky and Rahul while the investigation
remained pending against two other co-accused Pankaj Yadav
and Bhutkani Yadav, under Sections 364A, 323, 504, 506 and
414 IPC. Thus, the provisions relating to extortion and wrongful
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confinement were done away with. Whereafter, cognizance was
taken vide order dated 23.02.20211 against the three charge-
sheeted persons under the same Sections. Case was committed
to the court of Sessions on 11.04.2011 and the charges were
framed on 23.07.2011 under Sections 364A, 323, 506 and 414
IPC against the appellant and two others by the learned trial
court.
5. The prosecution, in order to substantiate its case,
examined 8 witnesses during the course of trial, they being PW-
1 Chamak Lal Yadav (formal wintess), PW-2 Nawal Kishore
Yadav (formal witness), PW-3 Ramji Paswan (Chowkidar), PW-
4 Jugal Singh (SAP Jawan-cum-member of raiding party), PW-5
Dayanand Kumar (the victim), PW-6 Pancha Devi and PW-7
Mamta Devi (grandmother and maternal aunt respectively of the
victim), who were both declared hostile by the prosecution, and
PW-8 Vishwanath Ram who is the informant as well as the
Investigating Officer (in short ‘I.O.) of the case.
6. Mr. Manoj Kumar Singh, learned counsel, arguing on
behalf of the appellant, at the outset, submits that the appellant
has been falsely implicated in this case due to some oblique
motive and the present case has been lodged in collusion with
the police. Learned counsel for the appellant has challenged the
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veracity of the seizure list on the ground that the seizure list
witnesses, PW-1 and PW-2, although independent, have stated
in their deposition that they have signed on blank papers. In
such view of the matter, the very sanctity of the seizure list
stands violated. While challenging the authenticity of the seizure
list, it has further been submitted that the seized articles, being
the cheques in question, have not been marked as exhibits and
on account of such non-marking of the same as exhibits, it has
been contended that the entire process of search and seizure is
not in accordance with law. This leads to his submission that, as
a matter of fact, nothing was seized and an absolutely fabricated
story has been created. Learned counsel has relied upon the
following cases in support of his contention that in absence of
proper proof of seizure, coupled with non-production of seized
articles, the same amounts to non-seizure of the article:-
(1) The State of Punjab Vs. Balveer Singh reported in
(1994) 3 SCC 299.
(2) Noor Aga VS. State of Punjab reported in (2008)
16 SCC 417.
(3) Khet Singh VS. Union of India reported in (2002)
4 SCC 380.
7. In this context, learned counsel for the appellant has
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submitted that the factum of seizure also does not get any
support from the independent witnesses and further in view of
the fact that no search of the persons conducting the search of
the accused also amounts to violation of Section 100 Cr.P.C.
Thus, the question of demand of ransom and the payment
thereof is non-existent.
8. The further submission of learned counsel for the
appellant is with respect to the fact that some crucial and
material witnesses of the case have not been examined. He
refers to the witnesses like Parmanand, the brother of the victim
to whom the ransom call was made and also refers to one Anand
Sharma, the maternal uncle of the victim, to whose house
allegedly, the victim had fled to, have not been examined. It is
stated that these witnesses were capable of bringing the real
facts to light, however the prosecution has deliberately withheld
them.
9. It has further been submitted on behalf of the
appellant that the evidence of the prosecution witnesses are
replete with inconsistencies and contradictions. He refers to the
conflict between the statement of the informant (I.O.-PW 8) and
the Chowkidar (PW-3) who is a member of the raiding party,
with regard to the time of reaching the place of occurrence and
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has, thus, also submitted that the time of occurrence has not
been established by the prosecution. Moreover, it has also been
contended that if, as per the prosecution version, there was a
crowd assembled at the place of occurrence, why no
independent witness was examined.
10. With regard to the place of occurrence, learned
counsel for the appellant has strongly contended that the same is
also not proved as the I.O. (PW-8) himself makes a reference to
three place of occurrence and further the non-recovery of any
weapon from the place of occurrence despite the prosecution
case of the appellant being apprehended on the spot, also makes
the place of occurrence doubtful. Learned counsel for the
appellant has raised serious doubts upon the veracity of the
testimony of the victim (PW-5) and contends that the same is
totally unreliable since his entire story of going to the house of
his grandmother does not get any support from PW-6 and PW-7
who are the grandmother and maternal aunt of the victim.
11. It has been very emphatically argued on behalf of
the defence that the entire case of the prosecution becomes a
suspect taking into consideration the fact that the informant
himself took over the charge of investigation and became the
I.O., despite the availability of other police personnel who could
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have investigated the present case. Besides, there appears to be
no reasonable ground as to why the S.H.O. became the
informant himself while the victim (PW-5) was completely
conscious to give any statement. The role of the informant/I.O.
has also been dubious in view of the fact that his reaching the
place of occurrence where the victim was allegedly confined
upon a confidential information, does not inspire confidence.
The informant/I.O. even talks about a Sanha recorded by him in
the station diary before he left for the place of occurrence but
the same has not been brought on record. He states that he
neither remembers the SD entry number nor is the same
indicated in the case diary. The entire genesis of the occurrence
is, thus, put to challenge by the defence.
12. On all the above-mentioned grounds, learned
counsel for the appellant has submitted that the prosecution has
failed to prove its case beyond all reasonable doubts and in the
present circumstances benefit of doubt ought to be given to the
appellant. To buttress his submission, he has relied upon the
following judgments:-
(1) Kuldeep Singh Vs. State of Punjab reported in
(2010) 14 SCC 615.
(2) Sujit Paswan VS. State of Assam reported in
Patna High Court CR. APP (DB) No.1238 of 2016 dt.16-05-2025
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(3) Ramesh Harijan Vs. State of UP reported in
(2012) 5 SCC 777.
(4) Vijay Shankar Vs. State of Haryana reported in
(2015) 12 SCC 644.
13. Learned APP for the State, Sri Ajay Mishra, has
totally controverted the submissions made by the learned
counsel for the appellant and has stated that the factum of
threatening the victim is established by the assertion made by
the victim (PW-5) himself in paragraph 3 of his deposition. It is
further submitted that the prosecution case of demand of ransom
has also been proved by the victim himself and the defence has
failed to dispel the credibility of this witness. Further, it has
been stated that the very fact of the appellant being arrested on
the spot finds support from the evidence of PW-3, PW-4 and
PW-8 and the seizure list prepared in this case (Exhibit-1)
makes it evident that the cheques stood in the name of the
appellant Chandan Kumar and were issued by the victim
Dayanand Kumar (PW-5). Paragraph 11 of the deposition of the
victim (PW-5) also confirms that the cheques stood in the name
of the appellant. The defence has not been able to come out with
any explanation, or any other theory as to how the said cheques
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were recovered from the possession of the appellant. On the
strength of such overwhelming evidence, learned APP for the
State contends that the prosecution case against the appellant
stands proved.
14. Besides hearing learned counsel for the parties, we
have minutely perused both the evidence i.e. oral and
documentary. Before proceeding further, it would be necessary
to cursorily discuss the evidence.
15. Out of the 8 witnesses examined on behalf of the
prosecution, PW-1 Chamak Lal Yadav and PW-2 Nawal Kisore
Yadav are formal witnesses who have proved the seizure lists
Exhibit-1 and Exhibit-1/A by identifying their signatures
thereupon. However, it would appear from the cross
examination of both these witnesses that they have signed on
blank papers. PW-6 Pancha Devi and PW-7 Mamta Devi are the
grandmother and maternal aunt of the informant respectively
and both of them have not supported the prosecution case, hence
have been declared hostile by the prosecution. Nothing
substantial has been elicited even upon their cross examination
either in favour of the prosecution or defence but for the fact
that they had not given any statement before the police and a
denial of the facts put to them with regard to the occurrence.
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Their evidence is thus of no consequence and do not need a
discussion. We are thus left with the evidence of PW-3 Ramji
Paswan (Chowkidar), PW-4, Jugal Singh (Sap Javan) who are
members of the raiding party, PW-5 Dayanand Kumar
(informant himself) and PW-8 Bishwanath Ram who both are
the informant as well as the Investigating Officer of the case.
16. PW-3 (Ramji Paswan) is a Chowkidar and is also
a member of the raiding party. He has deposed that on
24.12.2010 at around 4:00pm, the SHO got an information that
two boys have been kidnapped and have been kept in Pariya
village and upon such information when they went into the lane
of one Arun Yadav, they found a boy groaning in pain and 4-5
persons were fleeing away. One Chandan Rajak (appellant) was
however, apprehended who along with the victim Dayanand
Thakur were brought to the police station and the seizure lists
were prepared at the police station of a mobile and cheque book
which was recovered from the said Chandan Kumar upon search
in the presence of Chowkidar, Nawal Kishore Yadav (P.W.-2),
Raghubir Paswan (not examined) and Sap Jawan. He further
adds that Chamak Lal Yadav (PW-1) and Nawal Kishore Yadav
(PW-2) were also there. In the cross-examination, the witness
has expressed his ignorance about the source of information and
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has only stated that he had reached the place of occurrence
along with the SHO around 4:50pm where they apprehended
Chandan Kumar (appellant) and Dayanand Thakur (victim) who
were brought to the police station and all documentation were
done at the police station. He makes a categoric statement that
the seizure list was not prepared at the place of occurrence. It
would further appear from his cross examination that the SHO
had searched Chandan Kumar, however, the SHO had not got
himself searched prior to searching the appellant. He has denied
the defence suggestion that as a matter of fact, nothing was
recovered from the place of occurrence. It has lastly been stated
that Arun Yadav had not come to the place of occurrence and he
was not familiar with any of the persons who had been
apprehended or who had managed to escape.
17. One Jugal Singh, who is a Sap Jawan at
Kharagpur was examined as PW-4 and in his examination-in-
chief, he has reiterated the prosecution story as stated in the
FIR. However, he has stated that two persons were apprehended
on chase, one being Chandan Kumar (appellant) and the other
being Dayanand Kumar, the victim (PW-5). They were both
brought to the police station. In his cross examination, he has
stated that there was no population where the two persons were
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caught and no documents were prepared at the place of
occurrence.
18. PW 5, Dayanand Kumar happens to be the victim
of the present case and his version is that the occurrence relates
to an incident which took place on 23.12. 2010 when he was
going to Pariya village to the house of his maternal uncle,
namely, Anand Sharma, when all of a sudden 4-5 boys
surrounded him and started taking him towards Pariya Basti on
gun point. It has further been stated that his hands, legs were
tied and he was confined within a boundary and upon being
questioned with regard to his occupation, he stated that he is
engaged in the sale and purchase of paddy. He has further stated
that he had a cheque book and the accused persons who were
taking each other names as Chandan, Pankaj, Golua, Murani,
etc. forcibly got two cheques of an amount of Rs. 40,000/- and
Rs. 20,000/- issued by him. The witness, however, fled away in
the night, after finding an opportunity, to the house of his
grandmother. The accused persons also reached there to catch
him and threatened his grandmother and made a demand of Rs.
1,00,000/-. He was pulled out of his house by the accused
persons and assaulted due to which he received injuries on his
stomach, mouth, hands, chest and neck. They even called the
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brother of this witness on mobile and asked him to come with an
amount of Rs. 40,000/- by evening or else his brother would be
done to death. This occurrence, according to him, took place on
24.12.2010 and in the meantime, the police came in the evening
and recovered him and apprehended Chandanwa (appellant).
Upon inquiry by the police as to why he was carrying a cheque
book, he stated that since he is engaged in sale and purchase of
paddy and it is difficult to keep cash, he carries his cheque book.
A seizure list of the cheque book was made, whereupon he
signed and has identified his signature on the same which has
been marked as Exhibit-2.
19. In the cross examination, this witness has stated
that he is engaged in the business of sale and purchase of paddy
since 01.01.2009. However, he does not know the names of his
customers as it is his brother, Parmanand (not examined) who is
mainly responsible and it is at his instance that he buys and sells
the paddy. He further clarifies that the cheque book stands in his
name as he has taken loan from State Bank of India. The further
deposition of this witness is that he only knows his maternal
uncle at Bariyarpur and does not know others. He denies to be
friendly with any of the accused persons and also denies a
suggestion that he is involved in committing loot in the train and
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there are many cases pending against him. He has also stated
that there is no proof of the fact that he had come to Bariyarpur
on 23.12.2010 around 10:00 am for the purpose of sale and
purchase of paddy. The witness further states that he is a student
of B.A. Part-III and he had stated before the police that the
accused persons had assaulted him whereafter the SHO had got
him treated at the hospital. According to him, the police had
searched him as well as Chandan Kumar at the place of
occurrence. He does not know the names of the other accused
persons but claims to identify them. The witness next states that
Chandan Kumar was apprehended in the evening of 24.12.2010
and his watch and mobile had been snatched away by the
accused persons. It is stated that cheque of Rs. 40,000/- issued
by him was in the name of Chandan Kumar while the cheque of
Rs. 20,000/- was only signed by him with date but was not
issued in any name and that too as a consequence of the assault
made upon him. He accepts that his signature was not proper
and he does not remember the number and further the entire
cheque book was deposited before the police. The witness has
further stated that the policemen, 5-6 in number, had come to
the place of occurrence on foot and several persons had
assembled at the place of occurrence.
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20. PW-8 Bishwanath Ram, SHO of Bariarpur police
station is both informant and Investigating Officer of the present
case. It has been stated by him that upon receiving an
information with regard to a boy having been kidnapped and
kept in confinement by the accused persons, he left for the place
of occurrence for verification of the said fact and in torch light,
saw two boys fleeing away, one who was crying in pain, who
disclosed his name as Dayanand Kumar (victim) and the other
apprehended boy disclosed his name as Chandan Kumar
(appellant). It is further stated that villagers arrived at the place
of occurrence and the said Chandan Kumar was searched in the
presence of independent witnesses and two cheques of Rs.
40,000/- and Rs. 20,000/- were recovered from his pocket. With
respect to the said cheques, it was stated by Dayanand
Kumar(PW-5) that the same were forcibly taken by way of
ransom and a demand had also been made from his house for
more money, threatening them of dire consequences. The
witness has further stated that the seizure lists were duly
prepared and he has identified his signature on them which has
been marked as Exhibit-1/2 and 2/1. The accused Chandan
Kumar admitted his guilt upon inquiry and stated that he had got
the cheques issued from Dayanand Kumar and had made
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demand for money as well. He further admitted that his other
accomplice had apprehended Dayanand Kumar, kept him
confined in a room on the boundary and besides demanding
money from his family, the mobile and the watch of Dayanand
Kumar was also taken away. The witness has identified his self-
statement which has been marked as Exhibit-3(with objection).
21. The informant, PW-8, himself took charge of
investigation on 24.12.20210 and recorded the confessional
statement of Chandan Kumar, who disclosed the names of his
companion as Pankaj Kumar, Murkani Yadav, Vicki @ Vikash
Yadav as having complicity in the said offence. He has further
stated that both the arrested persons were forwarded. He also
took the statement of the victim Dayanand Kumar (P.W.-5) and
conducted inspection of the place of occurrence at village
Pariyar, P.S. Bariyarpur giving the description of the first place
of occurrence. The second place of occurrence is said to be the
land with boundary of one Fantush Yadav in village Pariya
where the victim was kept in a room with a boundary. The third
place of occurrence has been stated to be a lane adjacent to the
house of Arun Yadav in village Pariya where the victim
Dayanand Kumar was assaulted and from where he was
recovered and the appellant Chandan Kumar was arrested.
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Further, he took the statements of the seizure list witnesses
Chamak Lal Yadav(PW-1) and Nawal Kishore Yadav(PW-2)
and also the statements of PW-3 PW-6 and PW-7, besides
several other police officers and one Parmanand Kumar(brother
of the victim) and Anant Kumar (maternal uncle of the victim).
He also recorded the requisition of injury of Dayanand Kumar
and upon completion of investigation, submitted charge-sheet
no. 6/11 against accused Rahul and Chandan Kumar whom he
identifies in the dock. He has also identified the handwriting of
the scribe, S.I. Sanjay Kumar on the formal FIR and his own
signature thereupon, which is marked as Exhibit-4. In his cross
examination, on behalf of the accused Rahul Kumar, this
witness has stated that he got transferred from Bariyarpur police
station within 2 to 3 months and he completed his investigation
within the said period and that the accused Rahul Kumar was
apprehended in the morning of 25.12.2010. It would further
appear from his cross examination that he got the information at
the police station at 8:00 pm whereupon he made a station diary
entry but he neither remembers the number of the said entry nor
the same has been recorded in the case diary. It further appears
from his statement that the receiving of the copy of the seizure
list by the accused person has not been recorded thereupon. The
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witness further accepts that the seizure list was prepared at
21:30 hours and there is a cutting on 21. He had enquired about
the credential of the victim that he is a person of good character
but he did not find out about his criminal antecedent. While
stating that the cheques are of State Bank of India, he accepted
that he did not make any enquiry from the bank. The witness
further explains that since the matter related to ransom, he
himself became the informant of the said case and did not make
the injured Dayanand Kumar (PW-5), the informant of the case.
He accepts that he did not consult any superior police officer
with regard to the fact that whether he should assume charge as
the Investigating Officer of a case after becoming the informant
of the said case. No recovery of any weapon was made from the
accused person. He recorded the statement of Dayanand Kumar
(PW-5) with regard to the assault made upon him, but has not
been able to say as to where such statement was recorded.
However, in the next breath, he has stated that the statement of
Dayanand Kumar was recorded at the police station. It has been
further disclosed by him that he reached the place of occurrence
at 9:00 pm and before recording his self statement, which took
one hour, the seizure list was prepared, which took 20 minutes
time. The witness further accepts in his cross examination that
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he never made any prayer for recording the statement of the
victim Dayanand Kumar under Section 164 of the Cr.P.C. When
this witness had reached the place of occurrence, he had found
the victim Dayanand Kumar tied by towel (Gamcha) and was
crying in pain. He, however admits that there is no mention of
this towel (Gamcha) and it has nowhere been written that a
towel had been used for tying the victim. Further, he has not
indicated the time of sending the injured Dayanand Kumar to
Hospital nor he mentioned the time of preparation of the
requisition for treatment. However, he states that he had sent
Dayanand to hospital on 25.12.2010. At the end of the
deposition, the witness lastly states that the mention of the
injury report finds place in paragraph-53 of the case diary in
which it is stated that he was examined at 8:30 pm on
24.12.2010.
22. After closing the prosecution case, the learned
court below recorded the statements of the appellant and co-
accused Golu Yadav @ Rahul Kumar on 16.07.2012 under
Section 313 of this Cr.P.C. for enabling them to personally
explain the circumstances appearing in the evidence against
them. However, in their respective statements, they claimed
themselves to be innocent and stated the case to be false.
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23. However, trial Court upon appreciation, analysis
and scrutiny of the evidence adduced at the trial has found the
appellant guilty of the offence and sentenced him to
imprisonment and fine, as noted above, by its impugned
judgment and order, while the accused Rahul was acquitted by
Analysis and consideration
24. A bare perusal of the evidence of the prosecution
reveals that the police upon some information from undisclosed
source, had reached the place of occurrence upon lodging a
Sanha where the appellant and the alleged victim Dayanand
Kumar (P.W.-5) were both apprehended and upon the statement
of the victim, five persons were named as FIR accused,
including the appellant. The further case of the prosecution is of
recovery of two cheques of State Bank of India of an amount of
Rs. 40,000/- and 20,000/- dated 24.12.2010 issued in the name
of the appellant by the victim. There is also a reference to an
occurrence which took place on the previous day i.e. on
23.12.2010 when the victim was intercepted by the accused
persons and some cash and his mobile was snatched away by
the accused persons. There is a further story of the victim
having gone to the house of grand mother where he was
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followed by the appellant and one Pankaj Yadav and upon non-
fulfillment of demand of Rs. 1,00,000/- the victim was again
taken into their custody and was confined near the place of
occurrence from where he was finally recovered by the
informant. It is also the case of the prosecution that it was only
the appellant Chandan Kumar who was arrested at the place of
occurrence while the other four accused persons named in the
FIR, managed to escape.
25. It remains a fact that the law was set into motion
in the form of the present FIR by the informant Vishwanath
Ram who is the SHO of Bariyarpur police station whereas the
victim Dayanand Kumar was apprehended at the place of
occurrence and the entire prosecution narrative of the FIR is
based upon his statement. This takes us to the argument
advanced on behalf of the defence as to why the victim
Dayanand Kumar himself did not lodge an FIR and why the
same was lodged by the present informant who is not only the
SHO of Bariyarpur police station but who subsequently even
assumed the charge of investigation. There is no indication in
the FIR which would show that the victim was not in a
condition to give statement/fardbeyan, rather it is allegedly upon
his detailed disclosure that the facts have been narrated in the
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exhaustive FIR. This fact instills a reasonable suspicion on the
authenticity of the FIR and the veracity of the prosecution case.
The self statement of the informant (P.W.-8) has however been
marked as an Exhibit, with objection.
26. The over enthusiasm shown by the informant of
the present case by lodging the FIR and then by assuming
investigation thereupon is slightly difficult to comprehend. It
has been argued vehemently on behalf of the appellant giving
the reference of the case of Mohan Lal Vs. the State of Punjab
reported in (2018) 17 SCC 627 that the informant and the
investigating officer cannot be the same since there are chances
of tacit bias. However, the said view taken in the judgment has
been overruled in the case of Mukesh Singh& Ors. Vs. State
(N. Branch of Delhi) in SLP (Cr.) No. 39528 of 2018 passed
by a Larger Bench of the Hon’ble Apex Court which has laid
down that in a case where the informant himself is the
investigator, by that itself cannot be said that the investigation is
vitiated on the ground of bias or the like factor. The question of
bias or prejudice would depend upon the facts and
circumstances of each case. Therefore, merely because the
informant is the investigator, by that itself the investigation
would not suffer the vice of unfairness or bias and therefore on
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the sole ground that informant is the investigator, the accused is
not entitled to acquittal. The matter has to be decided on a case
to case basis. However, this fact needs to be viewed in the
backdrop of other attending circumstances which could lead to a
valid deliberation on the question as to whether it is on account
of some oblique motive that the appellant has been falsely
implicated and whether the evidence available on record are
sufficient for convicting the accused or whether under such
circumstances the appellant can be given the benefit of doubt.
27. So far as the truthfulness of the testimony of the
informant Vishwanath Ram (P.W.-8) is concerned, same has to
be gathered from his own deposition and the other attending
factors in the form of corroboration from other quarters. At the
outset, it would be relevant to consider that there is absolutely
no disclosure about the source of confidential information, as a
consequence of which the informant proceeded towards the
place of occurrence. The factum of lodging a Sanha also does
not stand proved as according to deposition of P.W.-8 himself
neither the Sanha has been brought on record nor does he
remember the station diary entry number. The informant has
also specifically stated in paragraph-13 of the deposition that the
station diary entry number is also not indicated in the case diary.
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Further the time of receiving the information at the police
station has been stated to be 8:00pm both in the fardbeyan of the
informant as also in his deposition. It, however, appears from
his evidence at paragraph-19 that he reached the place of
occurrence at 9:00pm whereas the distance between place of
occurrence and the police station is only about half kilometer,
which would appear from the First Information Report itself and
even as per the evidence of the informant/I.O. the distance is 1
½ kilometer. It has further been stated in his evidence that he
took one hour to record his own statement which was done at
10:00pm and prior to recording of his self statement he
allegedly prepared the seizure list also. However, the said
seizure list is dated 24.12.2010 but there is a cutting on the time
indicated thereupon which is 21:30 (9:30pm). This cutting has
been admitted by the informant in his evidence in paragraph-14.
Further, despite the presence of the appellant at the place of
occurrence, the specific statement of receiving a copy of the
said seizure list by the appellant is also missing on the said
document and the informant admits this fact too.
28. There are two witnesses P.W.-1 Chamak Lal
Yadav and P.W.-2 Nawal Kishore Yadav respectively who have
signed the seizure list and they are said to be independent
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witnesses. These, two witnesses P.W.- 1 and P.W.-2 have
however, stated in their deposition that their signatures, which
have been marked as Ext. 1 and 1/A, had been taken on blank
papers and these witnesses have not been declared hostile by the
prosecution. On consideration of such grounds, it can be safely
concluded that the sanctity of the seizure list is violated.
29. The evidence of the informant (P.W.-8, the
investigating officer) is further flawed by the fact that despite
making a specific statement that the victim was tied with towel
(Gamchha) which was opened by the informant’s guard, the said
towel (Gamchha) does not find any reference in any of the
documents, thereafter. He does not seem to have recovered any
other incriminating article from the place of occurrence. This
witness (P.W.-8) has not even made any prayer for recording the
statement of the victim under Section 164 Cr.P.C., nor does the
signature of the victim or the signature of any other witness
appears on the self statement of the informant. This witness has
stated that the victim Dayanand Kumar, P.W.-5, was found in an
injured condition but from his self statement it would appear
that he had taken all details from him after taking him to the
police station with regard to the incident which is indicative of
the fact that the victim was in perfect condition to give a
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statement which could form the basis of an FIR. The informant
has admitted that he has neither indicated the time of sending
the victim to the hospital nor has he indicated the time of
preparation of the requisition for the same, during the course of
investigation. It has rather been stated that he sent the victim for
treatment on 25.12.2010 whereas the self statement was
allegedly recorded on 24.12.2010 itself at 10:00pm. The falsity
of his statement that he sent the victim for treatment on
25.12.2010 becomes apparent from his own statement recorded
in paragraph-26 of the deposition wherein he admits that the
injury report of the victim finds reference in paragraph-53 of the
case diary in which date and time of examination has been
recorded as 24.12.2010 at 8:30pm. These are some major and
unignorable inconsistencies and contradictions which cannot be
reconciled and which shakes the very foundation of the case.
Hence, the evidence of the informant, P.W.-8, who has also over
enthusiastically acted as the investigating officer of the case,
does not inspire confidence.
30. Now adverting to the evidence of the victim
himself, it remains a mystery as to why this witness Dayanand
Kumar (P.W.-5), did not himself get his fardbeyan recorded as
the informant of the present case. His evidence also suffers from
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some serious infirmities as he relates to a story which took place
on 23.12.2010, i.e. a day prior to the actual date of occurrence
when he was recovered by the informant and other police
personnel. His entire story of getting off from the train at
Bariyarpur and being intercepted all of a sudden by 4-5 boys
who tied him up and confined him without even knowing him,
sounds suspicious. His further claim of having fled away from
his place of confinement to the house of his grandmother in the
night also does not find any support from the evidence of his
grand mother Pancha Devi (P.W.-6) and his maternal aunt
Mamta Devi (P.W.-7) who have both been declared hostile by
the prosecution. He further talks about two cheques being issued
by him upon force and coercion, in favour of the appellant.
However, the said two cheques did not see the light of the day as
they have neither been produced, nor marked as material
Exhibits in the case. He has also admitted that his signature on
the cheques was not properly made and he does not remember
the cheque number. Despite his statement that a crowd had
gathered at the place of occurrence, not a single independent
witness has been examined in support of the prosecution case
and his narrative has even not been supported by his grand
mother P.W.-6 and his maternal aunt P.W.-7, thereby raising a
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finger of suspicion on his entire story.
31. The seizure made in the instant case becomes one
of the most relevant factors to prove the truthfulness of the
prosecution case. The seizure, however, has not been done in
accordance with law and the mandatory provisions of search
and seizure have also not been followed which is in violation of
Section 100 of the Cr.P.C. It would appear from the evidence of
P.W.-3 Ramji Paswan who is the Chowkidar and has also been
named in the FIR as being part of the police team, that there was
no self-search of the persons who conducted the search of the
appellant and the timings given by him in his evidence is not in
consonance with timing given by the informant and the victim.
According to this witness (P.W.-3) the information with regard
to kidnapping of two boys was received at 4:00pm on
24.12.2010, they reached the place of occurrence at 4:15pm and
apprehended both the appellant and the victim Dayanand Kumar
and brought them to the police station. There is a specific
statement in his evidence at paragraph-4 that all documentations
were done at the police station and the seizure list was not
prepared at the place of occurrence. Both the members of the
police team being P.W.-3, the Chowkidar and P.W.-4, Jugal
Singh (Sap Jawan) have stated that there was a huge crowd at
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the place of occurrence and that both the appellant and the
victim were apprehended and brought to the police station and
no documentation was done at the place of occurrence. It has
already been noted above that two seizure list witnesses have
not supported the factum of seizure either at the place of
occurrence or at the police station, inasmuch as it is admitted
that they have signed on blank papers. The non- production of
the two seized articles, being the cheques in question and non-
marking of the same as exhibits, coupled with the fact that the
seizure list witnesses have not supported the said seizure, makes
the entire story of seizure palpably false. The cheques in
question being at the very foundation of the case, the entire
edifice built by the prosecution is razed to the ground. Virtually,
in absence of proper proof of seizure coupled with non-
production of the seized articles, leads us to the conclusion that
there was no seizure at all.
32. It is also noticed upon examination of the entire
evidence on record that there is no recovery of any weapon from
the place of occurrence as against the allegation of assault upon
the victim with the back portion of some weapons. Some of the
material witnesses like the brother of the victim namely
Parmanand Kumar to whom ransom call was made, has not
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been examined in the case as witness. The maternal uncle Anand
Sharma to whose house the victim has stated that he was going
on 23.12.2010 when he was intercepted by the accused persons,
has also not been examined in support of said fact. The genesis
of the occurrence as disclosed by the informant and the victim
which began from 23.12.2010 does not get proved in absence of
the examination of these material witnesses who could have lent
some support to the story as narrated by the victim. Further, the
victims credentials have also been doubted by way of
suggestions given to him that he was engaged earlier in train
robbery, which has no doubt been denied by him.
33. In the background of such facts it can be safely
concluded that the prosecution case suffers from serious
infirmities as there is complete want of explanation much less
plausible, as to why the victim was not made the informant of
the present case. The absence of conclusive evidence with
regard to the seizure of cheques in question, the story of victim
going to the house of his grand mother not supported by P.W.-6
and P.W.-7 and the irreconcilable conflict in the time of
occurrence as disclosed by the informant and P.W.-3 who is a
member of police team, brings the entire prosecution case under
a ring of suspicion. The non-examination of any independent
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witness from the place of occurrence and the non-recovery of
any weapon, towel (Gamchha) or any other incriminating article
and even the cheques in question makes the entire place of
occurrence as stated by the informant/I.O. (P.W.-8) doubtful and
renders it, as not established. The time of occurrence also gets
negated in view of the inconsistencies amongst the prosecution
witnesses themselves and also in view of the fact that the time
indicated in the injury report is totally contrary to one indicated
by the informant P.W.-8 and the same would be apparent from
paragraphs-25 and 26 of the deposition of P.W.8 himself.
34. In the abovementioned fact scenario, the major
question with regard to the sustainability of the conviction of the
appellant under Section 364A of the Indian Penal Code is to be
answered taking into consideration whether the ingredients of
Section 364A of the IPC are made out or not and also whether
the prosecution has been able to establish its case beyond
reasonable doubts. The very judgment of conviction and
sentence reveals that in the present case, the charges under
Section 323, 414 and 506 of the IPC have not been proved
against the accused persons, hence, the appellant has been
acquitted under the said Sections. In such view of the matter, the
factum of causing hurt, the recovery of any stolen article and the
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offence of criminal intimidation stands not proved, although
specific charges were framed under the aforesaid provisions of
law. This brings us closer to the question of sustainability of
conviction under Section 364-A IPC when specific charges of
hurt, criminal intimidation and recovery of stolen article has
been disbelieved.
35. For better appreciation, Section 364-A IPC is
being reproduced hereinbelow for ready reference:-
“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, or by his conduct gives rise
to a reasonable apprehension that such person may be put to
death or hurt, 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, shall be
punishable with death or imprisonment for life, and shall also
be liable to fine.”
36. It would appear from a bare reading of the
abovementioned provision that besides kidnapping of a person,
it has also to be proved that the kidnapped person is threatened
of death or hurt to be caused to him or there is a reasonable
apprehension of the same in order to compel payment of
ransom. The Hon’ble Apex Court has expressed its view upon
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the applicability of Section 364-A IPC in several judicial
pronouncements, but in a recent judgment, rendered in the case
of Ravi Dhingra Vs. State of Haryana, reported in (2023) 6
SCC 76, the Hon’ble Apex Court has considered the question in
detail in paragraphs no. 24 and 25 thereof. A reference has been
made to the case of S.K. Ahmed Vs. So Telangana reported in
(2021) 9 SCC 59. It would be apt to reproduce paragraph nos.
24 and 25 of the judgment rendered in the case of Ravi Dhingra
(supra) hereinbelow:
“24. Most recently, this Court in S.K. Ahmed has
emphasised that Section 364-A of the IPC has three
stages or components, namely,
(i) kidnapping or abduction of a person and keeping
them in detention;
(ii) threat to cause death or hurt, and the use of
kidnapping, abduction, or detention with a demand
to pay the ransom; and
(iii) when the demand is not met, then causing death.
25. The relevant portions of the said judgment are
extracted as under:
“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:
(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
Patna High Court CR. APP (DB) No.1238 of 2016 dt.16-05-2025
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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 fulfil the second
condition for offence.
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 fulfilment 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.’* * * * *
33. After noticing the statutory provision of Section
364-A and the law laid down by this Court in the
above noted cases, we conclude that the essential
ingredients to convict an accused under Section 364-
A which are required to be proved by the prosecution
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are as follows:
(i) Kidnapping or abduction of any person or
keeping a person in detention after such kidnapping
or abduction; and
(ii) 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 or;
(iii) causes hurt or death to such person in order to
compel the Government or any foreign State or any
Governmental organisation or any other person to
do or abstain from doing any act or to pay a ransom.
Thus, after establishing first condition, one more
condition has to be fulfilled since after first
condition, word used is “and”. Thus, in addition to
first condition either Condition (ii) or (iii) has to be
proved, failing which conviction under Section 364-A
cannot be sustained.”
37. In the light of the abovementioned, legal
proposition and upon perusal of the evidence in the instant case,
it can be safely concluded that the ingredients of section 364-A
IPC were certainly not proved by the prosecution inasmuch as
the prosecution failed to lead cogent evidence to establish either
threat perception, or demand of ransom.
38. In the present facts scenario, the acquittal of the
appellant from the charges under Sections 323, 414 and 506 IPC
would negate the proposition that any hurt has been caused or
any criminal intimidation has been made or any recovery has
been effected from the appellant. This finding of acquittal under
the aforesaid Sections comes in the background of the fact that
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the prosecution has miserably failed to bring any conclusive
evidence on record to prove that there was either any demand
for ransom or any recovery made from the appellant. The
prosecution’s argument of the victim’s statement with regard to
the fact that the cheques were issued in the name of the
appellant has no substance as the prosecution has miserably
failed to prove the seizure of the cheques in question and the
sanctity of entire procedure of search and seizure has been
totally violated. The further argument of the prosecution with
regard to existence of threatening in the evidence of P.W.-5
(victim) also stands not established and has thus resulted in
acquittal from Section 506 of the IPC. Further, it also needs to
be considered that although FIR was also lodged u/s 342 IPC,
this provision relating to the offence of wrongful confinement
was also dropped from the charge-sheet and no congnizance was
taken later, thereunder nor the charges were framed under the
abovementioned provision of law.
39. The fact as urged by the prosecution that the
appellant was arrested on the spot also remains surrounded in
cloud of suspicion as there is no independent witness of the
place of occurrence and as per the evidence of the prosecution
witnesses themselves the entire documentation etc has been
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done at the police station. Moreover, the conduct of the
Investigating Officer itself is not free from suspicion and bias.
In the case of Yakub Abdul Razak Memon Vs. State of
Maharashtra, reported in (2013) 13 SCC 1, the Hon’ble Apex
Court had noted that the primary intention behind the
“panchnama” is to guard against possible tricks and unfair
dealings on the part of the officers entrusted with the execution
of the search and also to ensure that anything incriminating
which may be said to have been found in the premises searched,
was really found there and was not introduced or planted by the
officers of the search party. It was further noted that the
legislative intent was to control and check these malpractices of
the officers, by making the presence of independent and
respectable persons compulsory for search of a place and
seizure of an article.
40. A reference may also be had, at this juncture to the
judgment rendered by the Hon’ble Apex Court in the case of
Rajesh Vs. State of M.P., reported in (2023) 15 SCC 521: 2023
SCC Online SC 1202 (Three Judges Bench), paragraph nos. 37
and 38 whereof are reproduced quoted hereinbelow:
“37. The following mandatory conditions were culled
out from Section 100 Cr.P.C. for the purposes of a valid
panchnama:
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(a) All the necessary steps for personal search of
officer (Inspecting officer) and panch witnesses should
be taken to create confidence in the mind of court as
nothing is implanted and true search has been made
and things seized were found real.
(b) Search proceedings should be recorded by the I.O.
or some other person under the supervision of the
panch witnesses.
(c) All the proceedings of the search should be
recorded very clearly stating the identity of the place to
be searched, all the spaces which are searched and
descriptions of all the articles seized, and also, if any
sample has been drawn for analysis purpose that
should also be stated clearly in the Panchanama.
(d) The I.O. can take the assistance of his subordinates
for search of places. If any superior officers are
present, they should also sign the Panchanama after
the signature of the main I.O.
(e) Place, Name of the police station, Officer rank
(I.O.), full particulars of panch witnesses and the time
of commencing and ending must be mentioned in the
Panchnama.
(f) The panchnama should be attested by the panch
witnesses as well as by the concerned IO.
(g) Any overwriting, corrections, and errors in the
Panchnama should be attested by the witnesses.
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(h) If a search is conducted without warrant of court
Under Section 165 of the Code, the I.O. must record
reasons and a search memo should be issued.
38. It was held that a panchnama would be
inadmissible in a Court of law if it is recorded by the
Investigating Officer in a manner violative of Section
162 Cr.P.C. as the procedure requires the Investigating
Officer to record the search proceedings as if they were
written by the panch witnesses themselves and it should
not be recorded in the form of examining witnesses, as
laid down in Section 161 Cr.P.C. This Court concluded,
by stating that the entire panchnama would not be
liable to be discarded in the event of deviation from the
procedure and if the deviation occurred due to a
practical impossibility, then the same should be
recorded by the Investigating Officer so as to enable
him to answer during the time of his examination as a
witness in the Court of law.”
41. The serious lapses committed by the I.O. in the
present case cannot be ignored. Moreover, the story narrated by
the victim (P.W.-5) himself stands at a sticky wicket and the
very fact of the victim being even kidnapped and kept in
confinement gets no corroboration from any other independent
quarters. Hence, in absence of proof of demand of ransom and
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threat perception, the ingredients of Section 364-A IPC are not
established. Further, in view of the fact that no evidence at all
has been collected from the crime scene and there is nothing to
show that the victim was kidnapped and kept in confinement,
the present case is not even fit to be converted into one under
Section 363 IPC as the very foundation of the case has been
shaken and the offence of kidnapping simpliciter also does not get
established. There is thus a complete dearth of evidence to prove
the charges against the appellant and the prosecution evidence
on record is replete with inherent inconsistencies. Further, it
may be noted here that the other accused, Rahul, who faced trial
along with the appellant, was also acquitted of all the charges by
the impugned judgment itself on the same piece of evidence.
42. In view of all the abovementioned facts and
circumstances and after a careful consideration and scrutiny of
the entire evidence on record, this Court reaches a considered
conclusion that the prosecution has failed to establish its case
beyond all reasonable doubts.
43. Thus, taking an overall perspective of the entire
case, emerging out of the totality of the facts and circumstances,
as indicated hereinabove and for the foregoing reasons, we find
that the prosecution has failed to prove the charges against the
appellant beyond all reasonable doubts, hence by way of
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extending benefit of doubt, the appellant deserves to be
acquitted of the charges levelled against him.
44. Accordingly, the finding of conviction recorded by
the learned Trial Court, in our opinion, is not sustainable and
requires interference, therefore, the judgment of conviction and
order of sentence dated 28.09.2012 and 29.09.2012, passed by
the Additional Sessions Judge-IV, Munger in Sessions Trial
No.261 of 2011 (arising out of Bariyarpur P.S. Case No.134 of
2010) are hereby set aside.
45. The sole appellant, who is in custody, is directed to
be released from the jail forthwith, if not required in any other
case.
46. Accordingly, the appeal stands allowed.
(Soni Shrivastava, J)
Mohit Kumar Shah, J.:
(Mohit Kumar Shah, J)
devendra/-
AFR/NAFR AFR CAV DATE 09.04.2025 Uploading Date 17.05.2025 Transmission Date 17.05.2025
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