Jharkhand High Court
Indrajit Singh @ Jite vs The State Of Jharkhand on 22 June, 2007
Equivalent citations: 2007(2)BLJR2876, 2008 CRI. L. J. (NOC) 51 (JHAR.) = 2007 (3) AIR JHAR R 328, 2007 (3) AIR JHAR R 328 (2007) 4 EASTCRIC 215, (2007) 4 EASTCRIC 215
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
Page 2877
1. The appellant was charged with, tried and convicted for the offences under Sections 364/34, 302/34 and 201/34 IPC and was sentenced to undergo imprisonment for life by the 3rd Additional Sessions Judge, Jamshedpur vide impugned judgment dated 31.5.2001 passed in Sessions Trial No. 234 of 1999/49 of 1999. The jist Page 2878 of the charge is that the appellant along with the co-accused Laxmi Narayan @ Babu, had kidnapped the informant's minor son Baldev Singh @ Munna in the morning of 9.11.1998 and had later, committed his murder and concealed the dead body of the deceased within the bushes in the jungle.
2. The case against the appellant and another co-accused was registered at the police station on the basis of the written report lodged on 10.11.1998 by the informant Mukhtar Singh (father of the deceased). The facts of the prosecution's case, briefly stated is that in the morning of 9.11.1998 at about 10.00 AM the informant's minor son Baldev Singh @ Munna aged eight years, was playing outside his house along with other children within the field known as Jemco maidan. At that time, the appellant Indrajit Singh @ Jite and other accused namely Laxmi Narayan @ Babu came to the field and forcibly carried away the boy on a bicycle. The informant's mother, who happened to be standing outside her house, saw her grandchild being taken away forcibly. She raised alarms, hearing which, the informant came out of his house. He too saw his minor son being taken away by the aforesaid accused persons on a bicycle. The informant tried to chase them, but could not catch them and saw that both the accused persons along with the minor boy fled away towards the D.V.C. yard. He went thereafter to the houses of both the accused persons, but did not find either of them or his son at their houses. The informant searched for his son through out the day and later again in the evening, he went to the house of the two accused persons whom he confronted at their houses, but both of them refused to divulge any information regarding the minor boy. The informant has alleged that there was long standing enmity between him and the accused Laxmi Narayan ever land dispute and that he was always being threatened by Laxmi Narayan.
3. In course of investigation, both the accused persons were arrested and their statements were recorded. A blood stained knife (katar) kept in a blood stained rexin bag and one cycle was recovered from the house of the co-accused Laxmi Narayan. A cycle was also recovered from the house of Indrajit Singh. On the basis of the alleged confessional statement of both the accused persons, dead body of the deceased minor boy was recovered from within the bushes in the forest located at a distance of about 50 yards from D.V.C. yard. A blood stained stone was also recovered by the police officer from the ground near the dead body. After conducting the inquest in respect of the dead body and preparation of the inquest report, the investigating officer forwarded the dead body to the hospital for postmortem examination. The doctor (PW1) who had conducted the postmortem examination on the dead body of the deceased minor boy on 11.11.1998, had found following ante mortem injuries on the dead body of the deceased.
A. Incised wounds transversely measuring -
i. 3.75 cm x 5 cm x 2 cm ii. 3.5. cm x 5 cm x 2 cm iii. 2.5 cm x 1.5 cm x 1 cm iv. 1 cm x 5 cm above downward over front of neck.
B. Contusion measuring 2 cm x 2 cm and another measuring 2 cm x 1.5 cm on the left side of the face below left ear.
Page 2879 C. Abrasion measuring 2 cm x 2 cm, 1 cm x 1 cm over right side of the face in front of right ear. Abrasion measuring 4.5. cm x 3 cm over right side upper part of abdomen and another measuring 3 cm x 1.5 cm over right scapular region.
On dissection of the scull, contusion on the frontal scalp right side was found and another contusion on the posterior part of the parietal scalp was found. There was massive subdurnal hemorrhage with contusion of whole brain.
There was massive contusion found in front and side of neck. Trachea was found cut, whole thickness at three places. Lungs pale and posterior parts of right lungs were found contused.
Death, in the opinion of the doctor, was on account of shock and hemorrhage due to the above injuries. Time elapsed since death till postmortem examination was opined as within 36 to 48 hours.
4. Though charge was framed against both the accused persons, but on account of the death of the co-accused Laxmi Narayan during the pendency of the trial, trial has proceeded against the present appellant only. The appellant had denied the charges pleading innocence and of his false implication in the case.
5. As many as 13 witnesses were examined by the prosecution at the trial. These witnesses include the informant (PW11), informant's mother (PW2), doctor (PW1) who had conducted the postmortem examination on the dead body of the deceased and the police officer (PW6) who had recorded the purported confessional statement of the accused persons, besides the investigating officer (PW12). Out of several witnesses examined by the prosecution, four witnesses namely, PW3, PW4, PW5 and PW10 were declared hostile by the prosecution. The informant (PW11) and his mother (PW2) are claimed by the prosecution to be material witnesses on the point of kidnapping of the minor boy by the appellant and the co-accused. PW8 and PW9 are witnesses to the seizure of blood stained bag, kripan and cycles from the possession of the accused persons as well as witnesses to the alleged confession made by the accused persons in presence of the police. They are also witnesses to the recovery of the dead body of the deceased from the place from where it was discovered by the police from within the jungle. PW7 and PW13 are witnesses to the inquest.
6. Considering the evidences on record, the trial court had observed that the ease of the prosecution is based on circumstantial evidence as there is no direct evidence against the accused for the murder of the deceased. The circumstances on which the learned trial court had placed emphasis as appearing in the evidence of PW2 and PW11, is that that they had seen the appellant and the co-accused taking away the minor boy on their cycle indicating thereby that the deceased was last seen in the company of the appellant and the co-accused. The other circumstance relied upon by the trial court was on the basis of the evidence of the investigating officer read together with the statement of PW8 and PW9 that both the accused persons including the present appellant, on their arrest, had confessed to have killed the deceased and that it was on the basis of their confession and on their pointing out, the dead body of the deceased was recovered from the jungle. On the basis of the inference that the present appellant and his associate had kidnapped the minor boy and that the deceased was last seen in the company of the appellant and the co-accused and further, that thereafter deceased was not seen alive and by Page 2880 considering the medical evidence that the deceased had sustained fatal ante mortem injuries resulting in his death, the trial court recorded its findings that the appellant was not only guilty for the offence of kidnapping the minor boy, but also guilty for the offence of committing the murder of the minor boy and for concealing the dead body of the deceased in the bushes with intent to cause disappearance of the evidence of murder.
7. Shri T.R. Bajaj, learned Counsel appearing for the appellant, has assailed the impugned judgment of conviction and sentence, on the ground that the trial court has committed serious error in failing to appreciate the evidences on record in proper perspective and in totally ignoring vital contradictions appearing in the evidences of the witnesses and the findings of guilt of the appellant has been drawn entirely on misconceived inferences. Learned Counsel explains that though, the informant (PW11) and his mother (PW2) have claimed that they have seen the present appellant and the co-accused taking away the minor boy on the bicycle, but their claim does not find support from any independent source, and even from the boys with whom the deceased was playing at the playground. Learned Counsel explains further that if the informant was sure and confident that the victim was kidnapped by the present appellant and the co-accused, in his very presence, there could be no reason as to why he should go in search of the boy to the house of the boy's mother at Orissa, instead of lodging a prompt report at the police station. Learned Counsel adds further that PW5 who was one of the boys with whom the deceased was playing in the playground, has not supported the claim of the informant and that of the informant's mother on the allegation of kidnapping of the minor boy by the appellant. Referring to the evidence of the informant (PW11), learned Counsel explains that the informant has claimed to have gone to the house of the present appellant at about 5.00 PM on the date of occurrence and that on query about the boy, the present appellant expressed his ignorance. Yet, the informant did not find any reason to suspect any foul play on the part of the present appellant and, therefore, did not go to the police station. Instead, he went to several places in search of the boy and it was only in the afternoon of the next day that the F.I.R. was lodged. Learned Counsel adds further that in absence of any explanation whatsoever offered by the informant for the delay in lodging of the F.I.R., the genuineness of the first information report and the allegation contained therein are rendered suspect.
Learned Counsel argues further that both the informant (PW11) and his mother (PW2) were highly interested witnesses and considering the admitted fact that the co-accused Laxmi Narayan was on inimical terms with the informant and that the present appellant was a close associate of the co-accused Laxmi Narayan, the informant had apparently cast suspicion against both the accused persons and has, therefore, implicated both of them on false and imaginary allegation that they had seen both the accused persons forcibly taking away the informant's son. Learned Counsel adds that in absence of any corroboration, the claim of these two witnesses that they had seen both the accused persons taking away the victim boy on the cycle that too in broad daylight, should not be believed and neither can reliance be placed upon the evidence of these two witnesses.
Learned Counsel refers next to the other circumstantial evidence on which the learned trial court has placed reliance namely, the alleged confessional statement of the appellant and the alleged discovery of the dead body of the deceased on the basis Page 2881 of the purported statement of both the accused persons. Learned Counsel explains that on these two issues, the evidence of the prosecution is totally inadequate and in fact, insufficient to prove and establish guilt of the appellant for the offences of murder and also for the offences under Section 201 IPC. Learned Counsel explains that though, the investigating officer (PW12) has claimed that on their arrest, both the accused persons, including the present appellant, had confessed their guilt and on their pointing out, a blood stained knife (Katar) kept in a bag which was also stained with blood and an Atlas cycle was recovered from the house of the co-accused Laxmi Narayan and likewise, the cycle alleged to have been used in the kidnapping of the minor boy was recovered from the house of the appellant Indrajit Singh, but none of the seized articles were either produced at the trial, nor were they forwarded for forensic examination by the investigating officer and neither has any witness identified either of the recovered cycles to he the vehicle used in the alleged kidnapping of the minor boy. Learned Counsel adds that likewise, though the investigating officer has claimed that on the basis of the confessional statement of the appellant and the co-accused and on their pointing out, the dead body of the deceased boy was recovered from within the bushes in the nearby jungle, but no such recorded statement of the accused persons was adduced in evidence by the prosecution. Referring in this context to the evidence of PW8 and PW9, who are claimed by the prosecution to be witnesses to the seizure of the articles and to the alleged confession of the appellant and the co-accused, learned Counsel submits that these witnesses have stated that a broken black colourd cycle was recovered from the house of the accused in their presence, though they had signed on the seizure list at the police station. On the point of the alleged confession, these witnesses have stated that no statement of the appellant was recorded in their presence. These witnesses also do not claim that the dead body of the deceased was recovered either on the basis of the confession made by the appellant or on the pointing out by the appellant. Learned Counsel adds further that even the witnesses to the inquest namely, PW7 and PW13 also do not confirm that the recovery of the dead body was made on the pointing out by the present appellant or by the co-accused. Finding fault with the findings recorded by the trial court, learned Counsel explains that the trial court has seriously erred in accepting the inconsistent evidence of the prosecution on the point of the alleged confession made by the appellant leading to the recovery of the dead body. Besides, the aforesaid circumstance purportedly appearing in the evidences of the investigating officer, was not put to the appellant while examining him under Section 313 Cr. PC and, therefore, such evidence could not have been legally used against the appellant.
Learned Counsel adds that even as admitted by the informant, there was previous enmity on account of land dispute with the co-accused Laxmi Narayan and not with the present appellant. Learned Counsel explains further that according to the description of the location of the houses of the informant and the appellant, as given by the informant and his mother and also by the investigating officer, the house of the appellant is situated almost adjacent to the house of the informant with a common courtyard and it was highly improbable that the appellant who is well acquainted with the informant and the members of his family, would indulge in the act of kidnapping the minor son of the informant in broad daylight that too in presence of the boy's grandmother. Learned Counsel adds further that the learned trial court has not entered into any discussion of the evidence of the witnesses and, therefore, Page 2882 findings of guilt, as recorded by it, is totally perverse and based entirely on conjecture and surmises.
8. Learned Counsel for the State, on the other hand, while refuting the entire grounds advanced by the learned Counsel for the appellant, submits arguments in defence of the impugned judgment of conviction and sentence. Learned Counsel explains that the evidence of the informant and that of his mother, are clear, consistent and cogent and there is no reason to disbelieve their testimony. He adds that the testimony of PW2 that she had seen the appellant taking away her grandchild on the cycle, is fully corroborated by the testimony of PW3 and PW4, both of whom have affirmed that in the evening hours on the date of occurrence, while they were sitting at a hotel having tea, the old lady (PW2) came to the hotel in search of her grandson and told them that Indrajit (appellant) had taken away the child in the morning and she apprehends that on account of previous hostility. Indrajit may have done something to the minor boy. Learned Counsel argues that even if the two witnesses (PW3 and PW4) had turned hostile by failing to offer full support to the prosecution's case, and had resiled from their previous statement made before the investigating officer wherein they had acknowledged to have seen the minor boy being taken away by the appellant on a bicycle, the earlier part of their testimony cannot be brushed aside and the same has to be treated as constituting corroborative piece of evidence and the trial court has rightly accepted the same while appreciating the evidence of the witnesses.
9. As appearing from the evidences on record, the case of the prosecution rests entirely on circumstantial evidence on which the trial court had also based its finding of guilt against the appellant. The first circumstance is that in the morning of 9.11.1998 at about 10.00 AM the appellant along with the co-accused had taken away the deceased on a bicycle from the playground situated at a distance of about 30 yards east of the house of the informant. This was seen by PW2 grandmother of the deceased) and also by the informant (father of the deceased) who was present in the house and came out from the house on hearing the alarms of his mother (PW2). The second circumstance is that the present appellant and the co-accused, on their arrest, had confessed their guilt acknowledging the fact that they had taken away the deceased on the bicycle and had killed him later and dumped the dead body behind the bushes situated near the D.V.C. yard and that the dead body of the deceased was discovered on the basis of the confession of the accused persons and on their pointing out the place from where the dead body was recovered. The third circumstance, as appearing in the testimony of the witnesses, is that a blood stained knife (katar) concealed in a bag bearing stains of blood and a bicycle was recovered on the basis of the confessional statements of the accused persons, from the house of the co-accused Laxmi Narayan @ Babu and one old bicycle was recovered from the house of the present appellant.
10. Before proceeding to appreciate the arguments advanced by the learned Counsel for the appellant, on each of the above issues, a brief note of the facts, which have not been controverted by the defence, may be made.
i. that the minor son (deceased) of the informant was found missing from his house since the morning of 9.11.1998.
ii. that the dead body of the boy was recovered on the next day i.e. on 10.11.1998 in the afternoon at about 4.00 PM.
Page 2883 iii. that the place from where the dead body of the deceased was recovered, as per the testimony of the investigating officer, was behind the bushes within the compound of the State Electricity Board Office situated behind the D.V.C. yard. This is also the place described and claimed by the prosecution to be the place where the deceased was murdered and his dead body was abandoned.
iv. that the deceased had suffered homicidal death on account of the fatal ante mortem injuries inflicted on his body. This is confirmed by the medical evidence of the doctor who had conducted the postmortem examination on the dead body of the deceased.
11. Referring now to each of the circumstance mentioned above, and the controversy raised by the appellant on the same, we would first consider the second circumstance namely, the alleged confession made by the appellant and the co-accused person before the police, on the basis of which, the dead body of the deceased was recovered. Evidence on this issue is available from the testimony of the investigating officer (PW12), who has claimed that on interrogating each of the accused persons after their arrest, they had confessed before him to have killed the deceased boy and had also disclosed the place where murder was committed and the place where the dead body of the deceased could be found and further, that they had led the police officer and pointed out the place from where the dead body was recovered. There appears, however, no independent corroboration to this part of the testimony of the investigating officer. He admits that he had not taken along with him any witness at the time of recovery of the dead body and that the witness had arrived at their own at the place and thus, explains the presence of two witnesses namely, PW7 and PW13 as the persons in whose presence, inquest on the dead body of the deceased was conducted by him at the place where the dead body was found. From the testimony of PW7 and PW13, it would appear that neither of them have confirmed that the inquest report was prepared at the place of occurrence in their presence. Their assertion on the other hand is that they had signed on the inquest report at the police station. There is no other witness to confirm the manner of recovery of the dead body of the deceased as stated by the investigating officer and neither has any witness come forward to state that the accused persons, including the present appellant, had confessed their guilt before the police in their presence and had pointed out the place from where the dead body of the deceased was recovered. Furthermore, there is no record of the alleged confession of the accused persons prepared by the police, nor has any such document been produced by the prosecution at the trial. Apparently, the evidence on the point of confession of the accused persons leading to recovery of the dead body, is not supported by any documentary record and neither corroborated by any independent source. Aid of the exceptional circumstances, as laid down under Section 27 of the Evidence Act, cannot be availed by the prosecution in absence of any cogent and reliable evidence being adduced in respect of the actual words stated by the accused if the same is claimed to have led to the discovery of the dead body of the deceased. This circumstance has thus remained not proved or established by the prosecution. In this context, it would be relevant to consider the submission made by the learned Counsel for the appellant that the aforesaid circumstance regarding the alleged confession of the appellant and the recovery of the dead body of the deceased was on the basis of the above confession, was not put to the appellant while recording his statements under Section 313 Cr. PC and no opportunity was afforded to the appellant to explain the Page 2884 said circumstance. We find that the above submission is factually correct. Learned trial court has definitely erred in placing reliance on this circumstance without putting the same to the appellant while examining him under Section 313 Cr. PC and without at lording him any opportunity to explain the circumstance.
12. Referring to the next circumstance, that certain incriminating articles namely a blood stained knife (katar) kept in a blood stained rexin bag and a bicycle was recovered from the house of the co-accused Laxmi Narayan and another bicycle was recovered from the house of the present appellant, there appears again the testimony of the investigating officer alone on this issue. Though, PW8 and PW9 have been examined by the prosecution as the persons who had witnessed the seizure of the aforesaid articles, but neither of them offer full support to the purported recovery or even to the purported confession made by any of the accused leading to the recovery. The seizure list of the articles seized which has been proved in evidence, though bears the signature of both the aforesaid witnesses and declares to have been prepared on 10.11.1998, but PW8 says that the recovery was made on 11.11.1998 and he had signed on the seizure list at the police station. Thus, the evidence on the point of the recovery of the aforesaid articles is confined to the testimony of the investigating officer. Even if the articles were in fact recovered by the police officer, yet, none of the articles was produced at the trial, nor were they forwarded for forensic examination to ascertain as to whether the stains on the knife and rexin bag were in fact blood stains and if so, whether the same corresponded to the blood of the deceased. In absence of any evidence of any witness, identifying any of the bicycles which were seized in the case, as being the vehicle on which the deceased boy was taken away, mere recovery of a bicycle from the possession of each of the accused person, does not constitute any incriminating evidence against them and neither can it be said with certainty that the knife which was purportedly seized, was in fact the murder weapon. Thus, this circumstance also does not constitute any incriminating evidence against the appellant, nor can any reliance be placed for drawing any adverse inference against the appellant.
13. The other circumstance, which remains to be considered in the light of the evidence on record, is that the appellant along with the co-accused had kidnapped the deceased from the playground in the morning of 9.11.1998 at about 10.00 AM. On this issue, the prosecution relies primarily on the testimony of PW2, grandmother of the deceased and that of PW11, father of the deceased. The testimony of PW11 (informant), is that in the morning of 9.11.1998 (Monday) at about 10.00 AM, his son Baldev Singh @ Munna aged 8 years, was playing in front of his house. At that time, the mother of the informant namely Tej Kaur (PW2) came out of the house to throw away the kitchen waste and at that time, she saw Indrajit Singh @ Jite (appellant) and Laxmi Narayan @ Babu (co-accused) taking away the minor boy forcibly on a bicycle. He affirms that the boy was made to sit on the bicycle by Indrajit Singh, while the co-accused Laxmi Narayan was following on another bicycle. On the alarms of his mother, he came out of his house, but he did not find his son, although he went in search of the boy up to some distance and had to return home on account of his personal indisposition. He went to the house of Laxmi Narayan in search of the boy, while his mother went to the house of Indrajit Singh, but neither of them could be found in their respective houses. Search for the missing boy was continued and in the evening when the accused persons returned Page 2885 home, they were asked regarding the whereabouts of the boy, but they did not offer any positive information. On the other hand, they gave out threats to the informant. This witness further asserts that when his son could not be traced out in spite of hectic search, he lodged his complaint at the police station on the following day casting suspicion that his son may have been subjected to some untoward happening by Laxmi Narayan on account of enmity due to land dispute between the informant and the father of Laxmi Narayan. In his cross-examination, he admits that there was no dispute or previous enmity with Indrajit Singh. From the testimony of this witness, it would appear that though, he came out of his house on hearing alarms of his mother, but on coming out he did not find his son in the playground and it was his mother who has informed him that the boy was forcibly taken away by Indrajit Singh and Laxmi Narayan on a bicycle. The other witness on this issue is PW2, the grandmother of the deceased. Her testimony is that on the date of occurrence i.e. on 9.11.1998 (Monday) at about 10.00 AM her grandson Munna aged about 8 years along with his friend Rajesh was playing in the Maidan opposite to her house. At that time, she was standing outside the house. She saw Indrajit Singh carrying away her grandson on a bicycle and Laxmi Narayan was following him. She raised alarms and on hearing her alarms, her son Mukhtar Singh (informant) who was inside the house, came out of the house. She adds that she along with her son ran in the direction in which the deceased was being carried away, but they could not reach and could not trace the boy. She adds that she had gone in search of the missing boy to the house of the appellant Indrajit Singh and also to the house of Laxmi Narayan, but neither of them were present in the house, nor was the deceased found. She adds further that in the evening of the same day, she went to the house of Indrajit Singh and though, he was present at the house, he did not divulge any information regarding the whereabouts of the deceased. She further affirms that Laxmi Narayan lives in the house of Indrajit Singh and there is enmity with Laxmi Narayan on account of land dispute since the past two years. She offers explanation as to why the police was not informed promptly by stating that the people of mohalla as well as Laxmi Narayan had asked her to search for the missing boy also at the house of his mother who lives separately in a different town in Orissa, but the boy was not found even there. She affirms that her statement was recorded by the police on the next day and later, on the same day, she had accompanied the police to the place from where the dead body of her grand son was recovered and she identified the dead body. She too admits that there was no previous enmity with Indrajit Singh. In her cross-examination, this witness reiterates and affirms that she had seen Indrajit Singh carrying away her grand son on his bicycle and the co-accused Laxmi Narayan was following him on another bicycle. PW3 and PW4 in their testimony, offer support to the testimony of PW2, though the support of these two witnesses is limited and not complete in respect of other particulars. PW3 in his evidence affirms that in the morning of 9.11.1998 at about 10.30 AM he was sitting at Jha Jee's hotel at Jemco Chowk having tea. One Akhileshwar Sharma (PW4) was also sitting there with him. At that time, mother of Mukhtar Singh (informant) came near the hotel searching for her grand son. She told that a young boy named Indrajit Singh had forcibly taken away her grand son on a bicycle and she also expressed her apprehension that Indrajit Singh and his associate may do some harm to the boy by taking him somewhere. He adds that at that time, many persons had gathered and someone out of them said that he had seen a boy being Page 2886 carried away on a bicycle towards the D.V.C. yard. He further adds that on the evening of the next day, he came to learn that the boy was killed and his dead body was recovered. He denies to have seen the boy being carried away on a bicycle, although as per claim of the investigating officer, this witness, in his earlier statement before the police, had categorically stated to have seen the deceased being carried away by Indrajit Singh on a bicycle. In view of his resiling from his earlier statement made before the police, this witness was declared hostile by the prosecution. The evidence of PW 4 Akhileshwar Sharma whose name was referred to by PW3 in his evidence, is also identical to that of PW3. He too affirms that on 9.11.1998 at about 10.00 AM he was having tea at Jha Jee's hotel near Jemco Chowk along with Deep Narayan Sharma (PW3). A little later, the mother of Mukhtar Singh came there searching for her grand son and she said that Indrajit Singh had taken away her grand son. He too claims that someone amongst the persons, who had gathered there, had said to have seen the boy being carried away on a bicycle towards the D.V.C. yard. On the claim that he has resiled from his earlier statement made before the police wherein he had said to have seen the deceased being carried away on a bicycle by Indrajit Singh, the prosecution had declared this witness as hostile. Even though, both these witnesses did not offer complete support to the prosecution's case, but their testimony lends corroboration to the testimony of PW2 on the point that she had seen Indrajit Singh carrying away her grand son on a bicycle and that she was hectically searching for the child at several nearby places and in course of her search, she had met both PW3 and PW4 and told them that her grand son was forcibly carried away on a bicycle by Indrajit Singh. The appellant has tried to shake the credibility of the testimony of this witness claiming that she is an interested witness and that, no prompt information was lodged at the police station. However, from her evidence in her cross-examination, it appears that she has stood firm on her assertion that she had seen the appellant Indrajit Singh carrying away her grand son on a bicycle and that the co-accused Laxmi Narayan was following him on another bicycle. Even if the witness is a near relation of the deceased, yet there is nothing brought by the defence on record that the witness had any spite or ill-will against the appellant or that she was impelled by such animosity against him that she would indulge in false statements only to secure the appellants' conviction. On the other hand, her candid admission that there was no previous enmity with the appellant indicates that there could be no motive or intention on her pan to falsely implicate the appellant. Her presence at her house at the time when the deceased was kidnapped and the possibility of her seeing the boy being kidnapped, cannot be considered as impossible. The testimony of PW2 inspires confidence and is reliable and there is no reason why her testimony should be disbelieved. The fact that the appellant Indrajit Singh had carried away the boy forcibly on his bicycle from the play ground in the morning of 9.11.1998, is amply borne out from the testimony of PW2 with the support offered by PW3 and PW4 and also by the informant (PW11). It is established that the deceased was last seen in the company of the present appellant and the co-accused and that the boy was forcibly carried away on the bicycle by the appellant Indrajit Singh. Learned Counsel for the appellant argues that the witness namely Rajesh Rajak (PW5) with whom the deceased was playing in the playground could have been the best witness on this issue, but he offers no support to the prosecution's case or to the claim of PW2 regarding the alleged kidnapping of the deceased by Page 2887 the present appellant. It is true that PW2 in her evidence, has referred to the name of Rajesh Rajak (PW5) as the boy who was playing along with her grand son in the playground, and though the prosecution has produced the boy (PW5) for his deposition, but he refused to offer any support to the prosecution' case and was declared hostile by the prosecution. His attention was invited to the previous statement given to the police which he had denied, although the investigating officer affirms that PW5 had stated before him that the deceased was carried away by Indrajit Singh on a bicycle by inducing the deceased with an offer of rasogullas. However, a significant support which PW5 offers to the evidence of PW2 is his admission that in the morning of date of occurrence, he was playing at Jemco Maidan along with Munna (deceased).
13. Learned Counsel for the appellants argues that even if, this circumstance that the deceased was last seen in the company of the appellant is accepted, it in itself cannot be considered as an incriminating circumstance pointing out exclusively to the guilt of the appellant for the homicidal death of the deceased. It may be noted that PW2 in her testimony, has stated consistently that she had seen the appellant forcibly picking up the deceased and carrying boy on the bicycle and the manner in which the boy was taken away, was such as to prompt PW2 to raise alarms and to run after the appellant who was speeding away. This amply indicates that the appellant had forcibly kidnapped the deceased minor boy on his bicycle. Thereafter, the deceased was not seen alive. Rather, his dead body was recovered from a lonely secluded place. This fact when rend together with the testimony of PW2 and PW11 that there was previous enmity between the informant and the co-accused Laxmi Narayan on account of land dispute and that the appellant Indrajit Singh was a close associate of Laxmi Narayan who used to live in the house of the present appellant, would suggest that the accused persons did bear grudge against the informant and had a motive for kidnapping the minor son of the informant. Though, the evidence on the point of enmity is confined to the testimony of PW2 and PW11 and not supported by any corroborative evidence, but the evidence of these two witnesses on the point of kidnapping has remained intact and uncontroverted in their respective cross-examination by the defence. Learned Counsel for the appellant argues that even on the basis of such evidence, offence under Section 364 IPC is not made out in absence of proof that the appellant had any intention of committing murder of the deceased at the time of kidnapping the deceased with any intention or knowledge that the deceased would be so disposed of as to be put in danger of being murdered.
14. Two essential ingredients of Section 363 IPC which the prosecution needs to prove are. (1) the accused kidnapped the victim in order that such victim may be murdered or that such person might be so disposed of as to be put in danger of being murdered. The intention of the kidnapper in such cases has to be gathered from the attending circumstances including the manner in which the victim was taken away and the fate of the victim after being kidnapped. The facts of the present case indicate that the appellant along with his associate Laxmi Narayan came on two bicycles to the playground where the deceased was playing. The appellant picked up the boy and placed him on his bicycle and speed off. His associate followed him on another bicycle. Both of them were seen by PW2 while they were carrying away the deceased. Thereafter, the deceased was not Page 2888 seen alive. Instead, the dead body of the deceased was recovered bearing several ante mortem injuries which were the cause of his death. It is apparent that the victim was murdered after being kidnapped and the obvious intention behind the kidnapping was to commit his murder. In this view of the matter, the conclusive inference of guilt of the appellant for the offence under Section 364 IPC is reasonably drawn. The trial court has rightly considered the evidence of PW2 and finding support from the evidences of PW11 and also from the evidences of PW3 and PW4, has rightly drawn the inference that the appellant Indrajit Singh and the co-accused had kidnapped the deceased minor boy and that the fact that the subsequent to his kidnapping, the minor boy was not seen alive and it was his dead body which was recovered on the next day, prominently declaring that the intention of the kidnapping was to commit murder of the victim or to put the victim in danger of being murdered.
15. As regards the offence under Section 302 IPC for which the appellant was convicted by the trial court, there appears no direct evidence that the appellant was the actual author of the homicidal death of the deceased, even though, the testimony of PW2 and PW11 suggest that the deceased was kidnapped by the appellant and the co-accused Laxmi Narayan. The conviction of the appellant for the offence under Section 302 IPC cannot therefore be sustained. As regards the conviction for the offence under Section 201 IPC, it appears that the trial court has recorded its findings of guilt for the said offence against the appellant on the ground that the dead body of the deceased was recovered from the secluded place behind the bushes and also on the ground that the appellant had pointed out the place to the police and the dead body of the deceased was recovered from behind the bushes on the basis of the confession of the appellant. This inference appears to be misconceived in view of the testimony of the investigating officer who has claimed that the murder of the deceased was committed at the place where his dead body was found and that a blood stained piece of stone was also found near the dead body. It indicates, therefore, that the dead body of the deceased was left and abandoned at the place where his murder was committed and the prosecution has not indicated any evidence to suggest that the appellant had caused disappearance of the evidence of the murder. The conviction and sentence of the appellant for the offence under Section 201 IPC is, therefore, not sustainable. His conviction and sentence for the offence under Section 302 IPC and Section 201 IPC are hereby set aside and he is acquitted from the charges for these two offences.
16. However, in the light of the evidence available on record and the discussions made above, conviction of the appellant for the offence under Section 364 IPC and the sentence for the said offence, as imposed against him by the trial court, is hereby sustained. This appeal is dismissed with partial modification, as stated above.