Jharkhand High Court
Birendra Mehta vs The State Of Jharkhand on 28 March, 2023
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 1276 of 2008
(Against the judgment of conviction dated 4th September 2008 and order of
sentence dated 8th September 2008 passed by the learned Additional
Sessions Judge, FTC No.1, Palamau, Daltonganj in Sessions Trial No. 183
of 2007)
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Birendra Mehta, son of Tirath Mahto, resident of village Baidhyabigha, PS
Hussainabad, District- Palamau ...... Appellant
Versus
The State of Jharkhand ...... Respondent
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PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Ms. Renu Bala, Advocate
For the State : Mrs. Nehala Sharmin, Spl.PP
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Oral Order
th
28 March 2023
Per, Shree Chandrashekhar,J.
Birendra Mehta has challenged the judgment of conviction dated 4th September 2008 and the order dated 8th September 2008 of sentence of imprisonment for life and a fine of Rs. 50,000/- each under section 364 read with 120-B of the Indian Penal Code and under section 364-A read with section 120-B of the Indian Penal Code passed by the learned Additional Sessions Judge, FTC No.1, Palamau, Daltonganj in Sessions Trial No. 183 of 2007.
2. By virtue of an order passed in Complaint Case No. 486 of 2006, Hussainabad PS Case No. 126 of 2006 was lodged on 15th December 2006 against Sunil Pandey, Anil Pandey, Pintu Pandey and Sintu Pandey, all residents of village Baidhyabigha.
3. The aforementioned Complaint Case was lodged by Kanchan Devi wife of Upendra Mehta who was abducted in the evening of 21st January 2006 at about 06:30 PM from his house by the aforesaid four persons. After the investigation, a charge-sheet was laid in the Court against the appellant who is the brother of Upendra Mehta. While the investigation against the others remained pending, the appellant has faced the trial under 2 Cr. Appeal (DB) No.1276 of 2008 sections 364/34 of the Indian Penal Code framed on 27th June 2007 which was altered vide order dated 21st August 2008 and charges under section 364 read with 120-B of the Indian Penal Code as well as under section 364-A read with 120-B of the Indian Penal Code were framed against him.
4. During the trial, the prosecution has examined four witnesses, out of whom PW1, PW2 and PW3 are the close relatives of the victim - PW4 is a formal witness.
5. The evidence produced by the prosecution to prove the charge under section 364 read with section 120-B of the Indian Penal Code has been dealt with by the learned trial Court in the following manner:
"12. Charge u/s 364 A read with 120 I.P.C. - From careful perusal of the paragraphs 1, 2 and 3 of the deposition of P.W.1 Tirath Mahto (father of the accused and the victim both), paragraph 1 and 2 of the deposition of P.W.2 Rajbanshi Devi (mother of the accused and victim both) and paragraph 1 and 2 of the deposition of P.w.3 Kanchan Devi (wife of the victim) it is clear that at about 6.30 P.M. on 21.1.2006 the accused Sunil Pandey, Anil Pandey, Pintu Pandey and Sintu Pandey (all not facing trial in this case) went at the house of the informant and at gun point abducted Upendra Mehta for ransom of Rs. ten lacs and threatened to kill the victim if hulla was made or information was given to the police.
13. But, from careful perusal of paragraphs 5,6,7, 49 and 10 of the deposition of P.W.1 Tirath Mahto it is clear that when Rs. three lacs by way of ransom was given by P.W.1 to accused Sunil Pandey, this accused Birendra Mehta was also along with that accused and had also gone with him and again he gave Rs. two lacs at that time also this accused Birendra Mehta had come to P.W.1 by motor cycle and this accused later on told to P.W.1 that the victim Upendra would return within a week and again when P.W.1 asked the accused Sunil Pandey, he told him that the entire ransom money was given to this accused Birendra Mehta.
14. Likewise paragraph 4 of the deposition of P.w. 2 Rajbanshi Devi also makes it clear that after Rs. three lacs was given to accused Sunil Pandey when he was again asked about not returning of the victim, he told that the entire ransom money was given to this accused Birendra Mehta.
15. In the same way from perusal of paragraphs 4 and 8 of the deposition of P.W.3 Kanchan Devi (informant of this case) it is clear that when P.W.1 gave Rs. three lacs by way of ransom to accused Sunil Pandey, this accused Birendra Mehta had also come along with accused and when Rs. two lacs was again given, at that time also this accused had come along with the accused Sunil Pandey and when P.W.1 asked the accused Sunil Pandey about not returning of the victim Upendra Mehta, he told that the entire ransom money was given to this accused Birendra Mehta."
6. Similarly, the charge under section 364-A read with section 120-B of the Indian Penal Code has been dealt with by the learned trial Court with reference to the testimony of PW1 and PW3. The trial Judge has 3 Cr. Appeal (DB) No.1276 of 2008 come to a conclusion that the appellant entered into a criminal conspiracy with other accused persons to abduct his own brother for ransom.
7. The learned trial Judge has held that there is no evidence of the appellant's physical participation in the occurrence but the circumstances clearly indicate that he was part of the criminal conspiracy, the evidence for which is generally hard to find. To fortify his opinion on complicity of the appellant, the learned trial Court has relied on the judgment in "K.K. Purshottaman v. State of Kerala" (2005)12 SCC 631 wherein the Hon'ble Supreme Court has held that a charge of conspiracy can be proved by leading circumstantial evidence.
8. The aforesaid findings by the trial Court have been challenged by Ms. Renu Bala, the learned counsel for the appellant, inter alia, on the following grounds: (i) presence of the appellant at the time when Sunil Pandey who received Rs.3,00,000/- from PW1 as well as the appellant accompanying Sunil Pandey after receiving the ransom are not incriminating circumstances unless it is proved that the appellant entered into a criminal conspiracy with others and; (ii) statement of Sunil Pandey that he has handed over the entire ransom to the appellant is not of any worth and; (iii) no charge for abduction for ransom can succeed only on the basis of criminal conspiracy unless there is independent evidence against the accused that he took part in the occurrence.
9. Ms. Ranu Bala, the learned counsel for the appellant has contended that on 28th June 2006 a complaint was given to the police and statements of PW1 and PW3 were recorded by the police. However, the prosecution has suppressed these facts and did not explain the circumstances why a First Information Report was not lodged on the basis of the complaint given by PW1. In these facts, the learned counsel for the appellant has submitted that non-examination of the Investigating Officer has seriously challenged the prosecution case as regards complicity of the appellant in the crime.
10. There is no universal law that non-examination of the Investigating Officer shall result in automatic vitiation of the trial. To raise a plea of prejudice caused to the accused on account of non-examination of the Investigating Officer, it is necessary that the defence must clearly set up a 4 Cr. Appeal (DB) No.1276 of 2008 ground during cross-examination of the witnesses and demonstrate that non-examination of the Investigating Officer has caused such prejudice to the accused which must be held fatal for the prosecution.
11. In "Lahu Kamlakar Patil and another v. State of Maharashtra"
(2013) 6 SCC 417 the Supreme Court has held that it is not that non-
examination of the Investigating Officer by itself would cause prejudice to an accused. The Hon'ble Supreme Court has in paragraph no.18 of the reported judgment observed as under:
"18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating officer, but for some reason, the investigating officer has not been examined by the prosecution. It is an accepted principle that non-examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar, this Court has stated that non- examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar, it has been opined that when no material contradictions have been brought out, then non-examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar, Rattanlal v. State of J&K and Ravishwar Manjhi v. State of Jharkhand, has explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that the present case is one where the investigating officer should have been examined and his non-examination creates a lacuna in the case of the prosecution."
12. In the present case, except raising a plea that previous statement of PW1 was suppressed by the prosecution, there is no other circumstance shown by the appellant which has caused prejudice to him during the trial. PW3 who is the complainant has clearly stated in the Court that Sunil Pandey and others were threatening the family members. She has further stated that the police did not lodge a case when an information was given on 28th June 2006 about abduction of her husband. In our opinion, there appears no contradiction in the complaint made by PW3 on the basis of which the First Information Report has been lodged on 15th December 2006.
5 Cr. Appeal (DB) No.1276 of 2008
13. The learned counsel for the appellant has next submitted that the prosecution has failed to prove death of Upendra Mehta and while so, the charge under section 364-A read with section 120-B of the Indian Penal Code must fail.
14. A glance at the provisions under section 364-A of the Indian Penal Code would clearly indicate that mere abduction for ransom is sufficient to establish the charge under section 364-A of the Indian Penal Code. In this context, we may indicate that a rise in the international terrorism and a series of kidnappings for ransom prompted the Legislature to enhance the punishment under section 364-A of the Indian Penal Code and, accordingly, by Act 42 of 1993 punishment with death for the offence under section 364-A of the Indian Penal Code was incorporated in the Code.
15. Even otherwise, conviction for murder can be recorded against the accused in absence of corpus delicti. [refer: "Ram Chandra v. State of U.P." AIR 1957 SC 381]
16. The prosecution evidence is that four persons came to the house of Upendra Mehta in the evening of 21 st January 2006 and took him away on gunpoint. They threatened his family members not to report the matter to the police. Sunil Pandey received ransom of Rs.3,00,000/- and again Rs. 2,00,000/- from PW1. According to PW1, the appellant who is his son was demanding Rs.6,00,000/- on a belief that he has received Rs.12,00,000/- from his post-retiral benefits. PW1 has further stated that to resolve this dispute a panchayati was convened in the village but the appellant did not agree for anything less than Rs.6,00,000/-. All through, till a charge-sheet was laid by the police, the prosecution witnesses did not express any doubt about complicity of the appellant in the crime. In his cross-examination, PW1 has stated that the appellant was present in the house and on several occasions he had discussed the matter with the appellant at home. He has also admitted in his cross-examination that the appellant was not present in the house at the time of abduction of Upendra Mehta. PW5 has also not made any specific statement about involvement of the appellant in abduction of her husband by Sunil Pandey and other three accused persons.
17. From the evidence of PW1, PW2 and PW3, we gather that on account of a suspicion that the appellant was demanding money his own 6 Cr. Appeal (DB) No.1276 of 2008 family members nurtured a doubt that he was involved in the crime. No doubt a criminal conspiracy which is hatched in secrecy can be proved through circumstantial evidence. However, the circumstances must be of definite character and sufficient for the Court to believe that the appellant with others decided to abduct Upendra Mehta for ransom. The presence of the appellant at the time when Sunil Pandey received ransom amount is not so unnatural as to raise an inference on his culpability. Sunil Pandey and other accused persons are residents of the same village and, therefore, the appellant leaving with Sunil Pandey after he received the ransom amount cannot be a clinching circumstance to hold that the appellant was part of the criminal conspiracy to abduct Upendra Mehta for ransom. This also needs no elaboration that the statement of Sunil Pandey who himself is an accused made before PW1 that he has handed over the entire ransom to the appellant is not the evidence legally admissible.
18. Therefore, what remains on the record is that the appellant has been roped in on the basis of a doubt nurtured by his family members and convicted under section 364 read with 120-B of the Indian Penal Code as well as under section 364-A read with 120-B of the Indian Penal Code. However, it is well-remembered that a suspicion howsoever strong cannot be a ground to hold the accused guilty for the crime.
19. In "Sharad Birdhichand Sarda v. State of Maharashtra" (1984) 4 SCC 116 the Hon'ble Supreme Court has observed as under:
"179.We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law."
20. Having thus examined the materials on record, we hold that the prosecution has failed to establish the charge of abduction with an intention to commit murder and ransom against the appellant.
21. Therefore, the judgment of conviction dated 4th September 2008 and the order of sentence of imprisonment for life under section 364-A read with section 120-B of the Indian Penal Code and a fine of Rs.50,000/- and imprisonment for life under section 364 read with 120-B of the Indian Penal Code and a fine of Rs. 50,000/- dated 8 th September 2008 against the 7 Cr. Appeal (DB) No.1276 of 2008 appellant, namely, Birendra Mehta passed by the learned Additional Sessions Judge, FTC No.1, Palamau, Daltonganj in Sessions Trial No. 183 of 2007 are set-aside.
22. Mrs. Nehala Sharmin, the learned Spl.PP informs the Court that the appellant, namely, Birendra Mehta has remained in custody and is confined in Central Jail, Medininagar, Palamau.
23. Therefore, the appellant, namely, Birendra Mehta shall be set free forthwith, if not wanted in connection to any other case.
24. In the result, Criminal Appeal (DB) No. 1276 of 2008 is allowed.
25. Let the lower Court records be sent to the Court concerned forthwith.
26. Let a copy of the judgment be transmitted to the Court concerned through 'FAX'.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 28th March, 2023 S.B./Nibha-N.A.F.R