Babloo Kumar Sharma @ Babloo Singh, Nandjee Gupta, Manoranjan Kumar Sharma @ Manoj Singh and Arbind Kumar Singh vs The State of Bihar (Now Jharkhand)

Pradeep Kumar, J.—Heard the learned Counsel for the appellants and the learned Counsel for the state.

The instant appeal is directed against the judgment of conviction dated 28.03.2000 and order of sentence dated 29.03.2000 respectively passed in S.T. No. 564 of 1995 by Shri Shital Prasad Thakur, Additional Sessions Judge, 2nd, Dhanbad, by which judgment he found the four appellants guilty under Sections 365 and 379 of the I.P.C. and sentenced him to undergo R.I for five years for an offense u/s 365 of the Indian Penal Code and R.I for one year for an offense u/s 379 of the Indian Penal Code and both the sentences have been ordered to run concurrently.

It is submitted by learned Counsel for the appellants that in the course of trial, the informant was not examined, only, I.O. of the case, is examined to prove the fardbeyan, but there is no corroborating evidence to prove the fact that the informant (Braj Kishore Singh) was kidnapped by these four appellants. It is further submitted that appellants have been convicted on the basis of the statement of informant (Braj Kishore Singh) u/s 164 of the Cr.P.C., which is bad in law and fit to be set aside.

Learned Counsel relied upon the judgment of State of Delhi Vs. Shri Ram Lohia, as also the judgment of Ram Kishan Singh Vs. Harmit Kaur and Another,

After hearing the learned Counsel for the appellants and going through the records, it appears that the prosecution case was started on the basis of fardbeyan recorded by the officer-in-charge Nirsa Police Station by P.W.1, who is a police officer, that the informant who was found in the house of Manoranjan Kumar Sharma @ Manoj Singh at Maithan, where he was kept and confined in the bathroom and having tied his hands and legs and thrusting the cloth in his mouth. He has also stated that he was going to Dhanbad by trekker, then the trekker was overtaken by ambassador car from which four persons namely, Babloo Kumar Sharma @ Babloo Singh, Nandjee Gupta, Manoranjan Kumar Sharma @ Manoj Singh, Arbind Kumar Singh, get down and dragged him from the trekker and kidnapped him in the white ambassador car. Thereafter, they brought him to the Maithan in the quarter (Quarter No. M/H 142A) of Manoranjan Kumar Sharma @ Manoj Singh from where he was rescued. He also stated that the accused have also snatched his money and assaulted him and got a letter written by him to his father to send Rs. 50,000/- for ransom, failing which he will be murdered by the accused.

On the basis of the said ferdbeyan, police registered a case under Sections 365 and 379 of the Indian Penal Code and after investigation, police submitted charge-sheet in the case. Since, the case was exclusively triable by the court of Sessions, learned Magistrate committed the case to the court of Sessions and subsequently, the case was tried by learned Additional Sessions Judge, 2nd, Dhanbad, who found the appellant guilty under Sections 365 and 379 of the Indian Penal Code and sentenced them as aforesaid.

It appears that in the course of the trial, the prosecution has examined as many as four witnesses.

P.W. 1, Surya Bhushan Sharma, is a police officer.

P.W.2, Dhrub Singh, turned hostile.

P.W.3, Baidyanath Singh, turned hostile.

P.W.4, Shiva Shankar Prasad Yadav, member of the raiding party.

Thus, it appears that the informant himself has not come to the Court for supporting the prosecution case. The Investigating Officer has tried to support the prosecution case. Evidence of I.O. cannot proved the case beyond the reasonable doubts. It appears that the trial Court convicted the appellants on the basis of the statement recorded u/s 164 of the Cr.P.C., which is marked as Exhibit-3 by the trial Court being a document of corroboration given from evidence P.Ws. 3 and 4, which can not be accepted as noted, by the various judgment of the Hon''ble Supreme Court, including two judgments refers to the above that the statement u/s 164 of the Cr.P.C. can only be used for corroboration or contradiction and it is not a substantive peace of evidence, as such, the learned trial Court committed an error of law in convicting the appellants on the basis of the statement u/s 164 of the Cr.P.C.

Accordingly, findings of judgment of conviction dated 28.03.2000 and order of sentence dated 29.03.2000 respectively passed by Shri Shital Prasad thakur, Additional Sessions Judge, 2nd, Dhanbad in S.T. No. 564 of 1995 is set aside and the appellants are acquitted from the charges. Since, the appellants are on bail. They are released from the bondage of bail bond.

Accordingly, the appeal is allowed.