Jharkhand High Court
Santosh Paswan Son Of Ramdin Paswan vs The State Of Jharkhand on 12 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 889 of 2016
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(Against the judgment of conviction dated 24.06.2016 and order of
sentence dated 27.06.2016, passed by Additional Sessions Judge-IV,
Bokaro, in Sessions Trial No. 393 of 2010)
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Santosh Paswan son of Ramdin Paswan, resident of Sector-II
B, Qr. No. 2-334, P.O & P.S.-B.S. City, District-Bokaro.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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with
Cr. Appeal (DB) No. 928 of 2016
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Nitish Vatsh @ Nitin Vatsh, son of Late Sanjay Vatsh,
resident of Quarter No. 3-014, Sector-II/A, P.O + P.S.-B.S.
City, Distt. -Bokaro. ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
with
Cr. Appeal (DB) No. 1051 of 2016
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Santosh Kumar Singh @ Santosh Singh, son of Radha
Kishore Singh, resident of Sector-II/A, Qr. No. 2-135, P.O.
and P.S.- Bokaro Steel City, District Bokaro (Jharkhand).
... Appellant
Versus
The State of Jharkhand ... ... Respondent
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Rajiv N. Prasad, Advocate
Mr. Amrendra Kumar, Advocate
[Cr. Appeal (DB) No. 889 of 2016]
Mr. Mahesh Tewari, Advocate
[Cr. Appeal (DB) No. 928 of 2016]
Mr. Rakesh Kumar, Advocate
[Cr. Appeal (DB) No. 1051 of 2016]
For the Respondent : Mrs. Priya Shrestha, Spl PP [In all cases]
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C.A.V. on 22/01/2024 Pronounced on 12/02/2024
Per Sujit Narayan Prasad, J.:
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1. Since all the appeals arise out of the common judgment of conviction and order of sentence, as such they are taken up together and are being disposed of by this common order.
2. These appeals have been filed under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction dated 24.06.2016 and order of sentence dated 27.06.2016, passed by learned Additional Sessions Judge-IV, Bokaro in Sessions Trial No. 393 of 2010, by which the appellants were found guilty of the offence punishable under Section 364A read with Section 34 of the Indian Penal code and were convicted for the offence punishable under Section 364A read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life and fine of Rs. 5000/- for the offence under Section 364A and in default of payment of fine directed to undergo simple imprisonment for one year.
3. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of institution of prosecution case, as per written report of informant, which reads as under:
4. On 21.05.2010, Subham Choudhary @ Rahul aged about 11 years went to attend tuition at Street 6 of Sector- II/C, Bokaro, who was to return at 10.30 a.m. after tuition but he did not return. Then his father, the informant of the -3- case, namely, Rajesh Prasad submitted a written report to the Officer-in-charge, B.S. City Police Station stating that Santosh Kumar Singh, Son of Radha Kishore Singh resident of Qr. No. 2-134, Sector -II/A has kidnapped his son. The informant has made the allegation that said Santosh Kumar Singh was earlier his neighbor who is an anti-social element and at about 2.30 pm he received a phone call on his mobile number from the Mobile No. 9771168356 through which the caller said that his son, Rahul, was in his custody. Thereafter, at 3.00 pm they asked to arrange Rs. 8 lakhs till 5 am of the next day and threatened that if the information is given to the police party, they shall lose Rahul Kumar. The informant believing that Santosh Kumar Singh and his friends have kidnapped his son for ransom submitted a written report, which was registered as B.S. City P.S. Case No. 182 of 2010 under Sections 364A/34 of the Indian Penal Code against Santosh Kumar Singh and his unknown friends.
5. After investigation, the police submitted charge-sheet against Santosh Kumar Singh (appellant in Cr. Appeal(DB)- 1051 of 2016, Om Nath Dixit @ Sakun Dixit, Santosh Paswan (appellant in Cr. Appeal (DB) 889 of 2016) , Tamana @ Tanu under Section 364A/34 of the Indian Penal Code, upon which, the learned Chief Judicial Magistrate took cognizance of the offence against the accused persons and -4- committed the case to the Court of Sessions on 31.08.2010 giving rise to Sessions Trial No. 393 of 2010 and again committed the case of appellant Nitish Vatsh (appellant in Cr. Appeal (DB) 928 of 2016) separately on 7th December, 2010 giving rise to Sessions Trial No. 465 of 2010. However, later on both the trial amalgamated and all the accused persons of both the cases were tried together.
6. After appearance of accused persons, the charge under Section 364A/34 IPC was framed against the accused persons, namely, Santosh Kumar Singh, Om Nath Dixit @ Sakun Dixit, Tamana @ Tanu, Santosh Paswan and Nitish Vatsh and read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.
7. During course of trial, accused Tamana @ Tanu died, as such proceeding of trial was dropped against her vide order dated 18.05.2013 and rest accused persons faced the trial.
8. On the date fixed for judgment accused Om Nath Dixit @ Sakun Dixit was absent, therefore, his case was separated from the case of present accused persons [appellants] on 24.06.2016.
9. The prosecution, in order to establish the charge, in course of trial, has examined altogether 15 witnesses, namely, P.W.1-Anuragi Prity Kujur @ Anu Kujur, P.W. 2 Anwar Ahmed, P.W. 3-Anil Kumar Gupta, P.W.4-Jyoti Devi, P.W. 5-Abhishek Choudhary, P.W. 6-Balendra Kumar, P.W. -5- 7-Sukhwant Singh, P.W. 8-Manoj Kumar Sharma, P.W. 9- Shubham Choudhary @ Rahul Kumar, P.W. 10-Dinesh Kumar Gupta, P.W. 11-Rajesh Prasad, P.W. 12-Baleshwar Sahu, P.W. 13-Manish Kumar, P.W. 14-Srish Dutta Tripathi and P.W. 15-Asif Ekbal.
10. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons, and found the charges levelled against the appellants proved beyond all reasonable doubts. Accordingly, the appellants had been found guilty and convicted for the offence punishable under Sections 364A read with Section 34 of the Indian Penal Code and sentenced to undergo life imprisonment for the said offence, which is subject matter of instant appeal.
11. Judgment impugned has been assailed individually by all the three appellants, who have filed separate appeals and has taken separate grounds for declaring the judgment of conviction and order of sentence to be bad in the eyes of law.
12. Grounds taken by Mr. Rajiv N. Prasad, learned counsel being assisted by Mr. Amrendra Kumar, learned counsel for the appellant in Cr. Appeal (DB) No. 889 of 2016 [Santosh Paswan] are as under:
I. It has been argued on behalf of accused, Santosh Paswan, that he was neither named in the FIR nor anything incriminating article was -6- recovered from his possession. Further, he was also not arrested with accused persons from the place where the kidnapped boy was kept and his mobile phone was also not used in committing the offence of demanding the ransom.
II. It has been submitted that there is no specific attributability having been said by the witnesses in course of trial against the present appellant.
III. The kidnapped boy i.e. victim for the first time in his examination-in-chief has stated that in the car by which he was kidnapped two persons also rode in the car whose names are Santosh Paswan and Sakun Dixit but they went only up-to Maithan but the victim boy during his statement recorded under Section 164 Cr.P.C. did not take the name of the present appellant. Further the victim in the cross-examination has deposed that he identified the accused, Santosh Paswan on the basis of identification of police at police station and later on he identified the appellant/accused in the Jail on 11.06.2010 and this statement itself erodes the credibility of the prosecution's case.
IV. The Investigating Officer has also stated that during cross-examination neither Rahul @ Subham Choudhary nor his father named the -7- appellant as accused in their statement before the police.
V. In the case at hand, the appellant's conviction is solely based upon the fact that the appellant of the instant appeal has been identified in the Test Identification Parade (TIP) but ground has been taken by learned counsel for the appellant by referring to paragraph nos. 31 of the testimony of P.W. 9, the victim that he had identified the appellant after being instructed by the concerned police Inspector as such the prosecution has not proved the alleged offence against the present appellant beyond reasonable doubt.
VI. The contention therefore has been made that the sole evidence for conviction is based upon the TIP which was held on 11.06.2010 but as been said in paragraph 31 of the testimony of P.W. 9, the P.W. 9 has been shown to meet with the appellant prior to said date. Therefore, the sole evidence of identification of the appellant which is the basis of conviction cannot be said proper and justified in absence of any other corroborative piece of evidence having not been uttered by a single witness and even P.W 9 (victim) has not disclosed the attributability of the present -8- appellant rather specific attributability has been alleged against appellants, Nitish Vatsh @ Nitin Vatsh and Santosh Kumar Singh @ Santosh Singh, the appellant of Cr.A (DB) No. 928 of 2016 and appellant of Cr. Appeal (DB) No. 1051 of 2016 respectively.
13. Therefore, learned counsel appearing for the appellant in Cr. Appeal (DB) No. 889 of 2016 has submitted that the conviction since is based upon T.I.P. of the appellant which itself is tainted and hence in absence of any corroborative piece of evidence having not been deposed by any of the witnesses the conviction of the present appellant is bad in the eyes of law.
14. Mr. Rakesh Kumar, learned counsel appearing in Cr. Appeal (DB) No. 1051 of 2016 [Santosh Kumar Singh @ Santosh Singh] has taken the following grounds in assailing the impugned judgment:
I. It has been submitted, by referring to the ingredient of Section 364A of the Indian Penal Code, that it consists of three parts i.e., (i) Kidnapping or abduction; (ii) threatening for the purpose of ransom and (iii) in case of non-payment of ransom the consequence will be to cause harm to the kidnapped or abducted person, but in the -9- instant case none of the ingredients of Section 364A is attracting against the appellant.
II. Submission has been made by referring to the testimony of P.W. 9 (victim) that it is not a case of 364A IPC so far as the present appellant is concerned reason being that there is no threatening for the purpose of ransom said to be substantiated if the testimony of all the witnesses will be taken together.
III. It has been submitted that in the facts of the case at best it is said to be a case of kidnapping as the ingredient of Section 363 IPC can be said to be there since there is no evidence of threatening of causing harm in case of non-payment of amount of ransom rather it has come in the evidence of P.W. 9 all along that the victim [abducted boy] was not subjected to any cruelty rather better treatment was given and even he was provided with food, kept in the hotel and was not mentally tortured which itself suggest that he was not subjected to any threatening in case of non-payment of amount of ransom. Therefore, the primary ingredient to attract the offence said to be committed under Section 364A of the Indian Penal Code will only be said to be attracted if there is threatening as per
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the second condition as referred in Section 364A IPC of the Indian Penal Code which is lacking and hence it cannot be said to be a case attracting penal provision as under Section 364A of the Indian Penal Code rather at the best it is a case of Section 363 I.P.C. i.e.kidnapping.
IV. The ground has also been taken that in the circumstance the Indian Penal Code provides for three penal offence i.e., Section 363 which only speaks about kidnapping; Section 364 IPC which speaks kidnapping for the purpose of murder and 364A stipulates kidnapping for the purpose of ransom. Since there is no ingredient of Section 364A IPC in view of absence of ingredient of threatening, therefore, even if the prosecution story will be taken in entirety the case will be said to be under Section 363 IPC. But the learned trial Court has not appreciated the aforesaid fact and hence the impugned judgment so far as it relates to conviction of present appellant for the offence under Section 364A IPC is not justified.
15. Mr. Mahesh Tewari, learned counsel for the appellant appearing in Cr. Appeal (DB) No. 928 of 2016 [Nitish Vatsh @ Nitin Vatsh] has taken the following grounds for assailing the impugned order:
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I. The argument regarding having no ingredient of Section 364A has also been taken, as has been taken on behalf of the appellant of Cr. Appeal (DB) No. 889 of 2016 and Cr. Appeal (DB) No. 1051 of 2016, as such for the sake brevity the same is not being repeated herein.
II. In addition, thereto argument has been advanced that it is not a case of Section 34 of the Indian Penal Code, since the main ingredient of Section 34 is the common intention is to be there.
It has been submitted by referring to the testimony of P.W. 9, the victim herein, that he has not deposed of having the common intention of kidnapping the victim for the purpose of ransom since no word has been uttered against the present appellant for the purpose of attracting ingredient of Section 34 of the Indian Penal Code.
III. It has been contended by referring to the testimony of P.W. 9, victim boy [Subham
Choudhary @ Rahul Kumar], P.W. 4 [mother of the kidnapped boy] and P.W.11-Rajesh Prasad [father of the kidnaped boy], who have all along disclosed the mobile number of Santosh Kumar Singh, the appellant in Cr. Appeal (DB) No. 1051 of 2016, and there is no reference of mobile number of present
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appellant by disclosing the name of appellant of the present appeal that he was having any common intention of kidnapping for the purpose of ransom.
IV. The learned counsel for the appellant has taken the ground by referring to the statement of the appellant recorded under Section 313 Cr.P.C wherein even though the question was not put to him as per the evidence gathered in course of trial rather the evidence which has come against the appellant of Santosh Kumar Singh @ Santosh Singh has been put to the present appellant and as such serious prejudice has been caused that even though the evidence has not come against the appellant as has been questioned under Section 313 Cr.P.C but even then the same has been put presuming the fact that such evidence has come against the appellant having been deposed by the witnesses.
V. Learned counsel for the appellant in order to buttress his argument has relied upon judgment as rendered by the Hon'ble Apex Court in Raj Kumar @ Suman vs. State (NCT of Delhi), 2023 Live Law (SC) 434.
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16. Learned Special Public Prosecutor appearing for the State has responded by vehemently opposing the grounds agitated by the appellants against the impugned judgment by defending the same that there is no infirmity in the impugned judgment:
I. According to learned counsel for the State all the witnesses have all along supported the prosecution version right from the first day of the occurrence wherein it has been stated that Shubham Choudhary @ Rahul was kidnapped by the accused Santosh Kumar Singh and Nitish Vatsh from Sector-II, Bokaro when he was returning from his tuition. He was taken towards Dhanbad by the black-coloured Alto car bearing Registration No. JH09C-0876 which was being driven by Nitish Vatsh in furtherance of common intention of co-accused persons Santosh Kumar Paswan and Om Nath Dixit @ Sakun Dixit who joined them at Dhanbad. They took the victim to Maithan from where accused persons Nitish Vatsh, Sakun Dixit and Santosh Paswan returned with the car to Bokaro leaving Santosh Kumar Singh with the kidnapped boy at Maithan telling him that they will inform him the activities of the police from Bokaro. The victim boy was kept by the accused
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persons at Asansole wherefrom he was lastly recovered by the police and the accused persons Santosh Kumar Singh, Nitish Vatsh and Tamanna @ Tanu, the alleged wife of Santosh Kumar Singh were arrested and the ransom money paid by the informant was recovered from the room where the kidnapped boy was kept by the accused persons and said accused persons were arrested from the same place. Therefore, from the testimony of the witnesses it is clear that the prosecution has successfully proved the charge under Section 364A read with Section 34 of the Indian Penal code levelled against all the accused persons beyond all reasonable doubts.
II. So far argument advanced on behalf of learned counsel for the appellant-Nitish Vtash that ingredient of Section 34 is not attracted in the case at hand, submission has been made that the witnesses have clearly deposed that Santosh Paswan joined the other accused persons and victim boy at Dhanbad and took the victim to Maithan from where accused persons Nitish Vatsh, Sakun Dixit and Santosh Paswan returned with the car to Bokaro leaving Santosh Kumar Singh with the kidnapped boy at Maithan telling him that
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they will inform him the activities of the police from Bokaro. Therefore, it cannot be said that there was no common intention attracting Section 34 of the Indian Penal Code.
III. In support of her argument, learned counsel for the respondent-State has relied upon following judgments:
a. Birbal Choudhary alias Mukhiya jee v. State of Bihar [(2018) 12 SCC 440] b. Vinod v. State of Haryana [(2008) 2 SCC 246] c. P. Liaquat Ali Khan v. State of A.P [(2009) 12 SCC 707].
17. Learned Additional Public Prosecutor on the basis of aforesaid grounds has submitted that the judgment of conviction and order of sentence requires no interference by this Court.
Analysis
18. We have heard learned counsel for the parties, perused the material available on record more particularly the testimony of the witnesses and the finding recorded by learned trial Court.
19. This Court before considering the argument advanced on behalf of the parties is proceeding to consider the
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deposition of witnesses, as per the testimony recorded by learned trial Court.
20. P.W. 1 Anuragi Prity Kujur @ Anu Kujur was a teacher at Jain Public School at the time of occurrence and she was giving tuition to the kidnapped boy Rahul along-with two other students Sourabh and Abhishek who were the student of Class-V. This witness has stated in her examination-in- chief that Sourabh, Rahul and Abhishek, the students of Class-V, used to come to her residence to take tuition. On 21.05.2010 all students had come to attend tuition class and she has taken tuition class up-to 11.20 am and after that the class was over. During tuition class Rahul had told her that he has to go his house early as he will go for shopping with his parents and therefore, she has left them at 11.20 am. After half an hour parents of victim boy came to her and asked as when she has left their son as he has not reached the residence till now. Then she went with them to the residence of Sourabh and Abhishek but found the house of Sourabh locked. Maternal grandmother said that Abhishek and Sourav have gone to play in the field and then they went to the Sector-II/C field and found that Sourabh and Abhishek are playing there. They told that after the tuition they directly went to their residence and Rahul went towards his residence. From there the parents of Rahul went to their house and she went towards her residence. At that time
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mother of Rahul has told that perhaps Santosh has kidnapped her son.
21. Cross-examination of the witness was denied by the learned counsel for other accused persons except Santosh Kumar Singh. On cross-examination by the learned counsel for Santosh Kumar Singh this witness has deposed that she knows nothing about the occurrence.
22. P.W. 2 Anwar Ahmed is an employee of Bokaro Steel Plant with the informant Rajesh Prasad. This witness has stated in his examination-in-chief that on 21.05.2010 a boy Rahul Kumar was kidnapped whose father Rajesh Prasad is posted with him at Bokaro Steel Plant. He has informed him on telephone that son of the informant had gone to tuition but had not returned yet. He also called Anil Kumar Gupta who came to the residence of this witness and then this witness along-with Anil Kumar Gupta went to the quarter of Rajesh and started looking for the boy here and there. At about 2.30 pm a phone call was received by Rajesh and it was told that his son was in his custody and Rajesh said that the call was made by Santosh Kumar who has been identified. On the same day at about 3 pm again Rajesh was called and the caller demanded Rs. 8 lakhs in exchange of release of boy. Then he advised him to inform the matter to the police and as per the suggestion of Rajesh Prasad this witness has written the first information report on which after
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reading Rajesh Prasad put his signature. The said written report was marked as Ext. 1 on his identification.
23. Further in his examination-in- chief the witness has stated that in the next morning he along-with his friends and police went to Dhanbad Railway Station where Rajesh was directed on his mobile to come to Govindpur More and from there Rajesh was directed to come to Nirsa and after that to Asansole railway station. The caller who was giving direction did not meet where he called Rajesh Kumar.
24. It is further deposed that at about 1.00 am in the night again Rajesh Kumar was directed to come with the money to the outer signal of Nirsa railway station and then Rajesh Kumar alone went with the bag of money to the outer signal of Nirsa railway station and on return Rajesh Kumar said that he has handed over the bag of money to Santosh Kumar Singh and Nitish Kumar and they have said that they will send the kidnapped boy within half an hour.
25. It is further stated that Rajesh Kumar was again directed to reach Asansole railway station where they will send the boy. Then they all went to the Asansole railway station and started waiting where the boy came on an auto- rickshaw. After de-boarding the boy, auto-rickshaw started going back and then the police apprehended it and made query from the driver of autorickshaw who took the police team and them to Niyamatpur more. The kidnapped boy told
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he can identify the house and then police stopped him and went with the boy and his father Rajesh Prasad and returned back taking in custody two boys and one lady and then they returned to their residence.
26. This witness further stated that on 24.05.10 when he went near Sudha Dairy booth at Sector-II he saw that police recovered a black-coloured Alto Car and also recovered a revolver from the Dicky of the car and prepared its seizure list. This witness also put his signature on seizure list on which Anil Kumar also put his signature which was prepared in carbon copies in his presence. The witness identified his signature on the carbon copy of the seizure list which was marked Ext. 2 on his identification.
27. This witness has further stated that the police went with the accused persons and recovered car and the country-made pistol and they also followed the police and the accused persons. Before locking the accused persons in the lock up the police searched Santosh Kumar Singh and recovered a mobile of double SIM from the pocket of his pant and prepared its seizure list. This seizure list was signed by this witness and Anil Kumar Gupta. The witness identified his signature as well as the signature of Anil Kumar Gupta on the seizure list and the signatures are marked Ext. 2 and 2/1 respectively. The witness identified the accused persons
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Santosh Kumar Singh and Tamana present in the court and he also claimed to identify Nitish Vatsh.
28. During cross-examination this witness has stated that he has friendship with Rajesh Prasad for 22 years and they work together. He has further stated in the cross-examination that except lady accused Tamana all the accused persons are resident of the locality of Rajesh Prasad. The witness has stated that on 21.05.2010 the police has inquired into the offence from him but has not recorded his statement but further in para 13 he has stated that he told the police all about the occurrence which was in his knowledge and the statement of kidnapped boy was taken by the police on second or third day of the occurrence. The witness has shown his inability to state that whether the statement of Anil Kumar was recorded by police or not and has stated that he has not told the police in his statement that Rajesh Prasad has also called Anil Gupta on telephone.
29. This witness has also stated that he has not stated to the police that Rajesh was called on telephone and was told that Rahul was in their custody at his residence when he was also present there and has also not stated before the police that call was made by Santosh Kumar whose voice was identified by Rajesh Prasad but he has stated before the police that about 3 pm Rajesh Prasad was called by the
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kidnappers and Rs. 8 lakhs were demanded for release of boy.
30. The witness has further stated that he has written the report because Rajesh Prasad was nervous and not in position to write. In para 20 of the cross-examination the witness has stated that on 22.05.10 at about 11.12 am from Bokaro, he along-with Anil Kumar Gupta, Rajesh Prasad and elder son of Rajesh Prasad had gone to Dhanbad railway station.
31. The witness was unable to say the name and number of the police personnel and the driver of the vehicle. The witness has also stated that he did not tell the police in his statement that when they reached Dhanbad the kidnappers called and said to come at Govindpur and then to come to Nirsa and after that Asansole and again to come to outer area of Nirsa station and has also not stated to the police that Rajesh came back and told that he has handed over the bag of money to Santosh Kumar Singh and Nitish Kumar and has also not told that Rajesh Kumar said that they will send his son within half an hour and has also not stated that again phone was received by Rajesh Kumar through which he was directed to reach the Asansole railway station and wait for the boy.
32. The witness has also stated that he has not stated before the police that when the kidnapped boy was asked, he
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said that he can identify the house and police went with Rajesh and his son to the house and apprehended a woman and two boys from there.
33. During cross-examination on behalf of Santosh Kumar the witness has stated that he is known with Rahul since his childhood. The witness has also stated that in his statement given before the police he had not mentioned about the recovery of mobile from the possession of Santosh Kumar. The witness denied the suggestion that he has not gone to Dhanbad, Nirsa or Asansole and is giving false statement in friendship of Rajesh Prasad.
34. Further during cross-examination, the witness has stated that before coming his present residence Rajesh Prasad was living in another quarter of Sector-II but he has never gone there and Rajesh Prasad has not complaint against his neighbours of his earlier quarter.
35. Further during his cross-examination, he has stated that he was with Rajesh Prasad at 2.30 pm when he was called by the kidnappers for ransom and after that went with him to the police station and lodged the FIR and remained with him till 6 pm.
36. The witness has stated that he saw Santosh Kumar for the first time on 24.05.2010 at about 5'O clock but cannot say the place where he saw him. He stated that he saw
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Santosh at about 15 km away from Asansole station and not at Asansole railway station.
37. P.W. 3 Anil Kumar Gupta is also one of the friends of informant. This witness has stated in his examination in chief that on 21.05.2010 at about 1.30 pm Rajesh Prasad called him on telephone and informed that his son Rahul did not return from the tuition and told him to come. He went to the residence of Rajesh Prasad with his friend Anwar Ahmed and started searching Rahul and after that went to the police station where Rajesh Prasad submitted a written report which was written by Anwar Ahmed.
38. He has further deposed that on the next day they went with the police to Asansole where Rahul was recovered and after that they returned to Bokaro. The witness identified his signature on the carbon copy of the seizure list which is marked Ext. 2/3 on his identification. The witness also identified his signature on other seizure list marked Ext. 2/2.
39. During the cross-examination the witness has stated that he cannot say that from whose possession the mobile was recovered. The witness has also stated that he has put his signature on the seizure list in the police station and has not completely read the seizure list.
40. P.W. 4 Jyoti Devi is the mother of kidnapped boy Rahul who has also supported the prosecution case and has stated that on 21.05.2010 her son went to attend tuition class of
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Anu Madam at about 10.30 am at Sector-II/C, Street-6. Generally, he used to return by 11.30 am but on that day when he did not return till 12 noon then she along with her husband went to the residence of Anu Madam who told that Rahul has said that today he has to go to market with his parents and therefore she finished the class at 11.20 am.
41. She has further deposed that two other students Abhishek and Sourabh were also attending tuition class with Rahul and they went to their houses with Anu Madam but they had gone to play in the field where she met with the boys. Both of them told that after the tuition class Rahul has gone towards his residence. Then they started searching his son. During the search they came to know by a lady in Street-6 that two boys had taken Rahul in a black-coloured Alto car.
42. She has further deposed that at about 12.30 pm her husband called her friends Anwar Ahmad and Anil Gupta and told them about the missing of his son. In the meantime, at about 2.30 pm a phone call was received on the mobile of his elder son namely Abhishek and was told that Rahul was in their possession and the caller said to call again after half an hour. Again, at about 5 pm the kidnappers called and said to arrange Rs. 8 lakh till 5 pm of the next day and threatened to kill Rahul in case they inform to the police. Then her husband went with his friends to the police station.
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43. She has further stated that her son was recovered on 24.05.10 from Asansole railway station. On return his son told that when he was returning from tuition a black- coloured car was standing on the turning and Santosh bhaiya and Nitish Bhaiya were standing along with the car and they told him to come with them and he did not want to go with them but they forcefully seated him in the car. The car was driven by Nitish and Santosh was sitting on the back seat.
44. She has further stated that she was told by her son that he was taken towards Dhanbad via Sector-VIII and IX and they purchased some tablets in the way and forced him to consume it after showing gun and her son also told that two other boys Sakun Dixit and Santosh Paswan were also seated in the car at Dhanbad.
45. The witness has further stated in her examination-in- chief that before the recovery of her victim son, she was called on her mobile phone in the night of 22.05.2010 at about 2.30 to 3.00 am and the caller demanded money after abusing her on which she said that her husband has gone with the money. The witness identified accused Santosh Kumar Singh present in the court.
46. During cross- examination she has further stated that earlier she was residing in Qrt. No. 2-445, Sector-II/C, Street- 1 and Santosh Kumar was residing just besides her Qrt. No.
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2-456 and she lived in that quarter for 10 years. After the change of the quarter sister of Santosh used to visit her residence and there was no inimical relation with her family and family of Santosh Kumar Singh.
47. This witness has further stated that she does not remember that what she has stated to the police in her statement. She further stated that she does not remember that she has stated to the police that both the friends of her husband were sitting in her house talking with her husband when at about 2.30 pm phone call was received on mobile of his elder son. On the suggestion given by the defence the witness has stated that she has stated all before the police which she has stated in her examination-in-chief.
48. During cross-examination the witness has stated that call was made from mobile no. 9771169356 on the mobile of my elder son and herself as she remembers. All the calls were made by the same phone. The witness has further stated in her cross-examination that during the search the woman of Street-6 who has stated about the black-coloured car on which Rahul was taken was an unknown lady.
49. During cross-examination on behalf of Sakun Dixit and Nitish Vatsh the witness has stated that she came to know Sakun Dixit and Nitish Vatsh after the occurrence and their names were told to her by her victim son Rahul. Regarding the identity of Santosh Paswan, the witness has stated during
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the cross-examination that her son Rahul has also told about Santosh Paswan.
50. P.W. 5 Abhishek Choudhary is the brother of the kidnapped boy Rahul who has also stated that his younger brother Rahul has gone to attend tuition class at the residence of Anu Madam from where he did not return till noon while generally used to return at about 11.30 am. His parents went to ask Anu Madam who told that she had finished the class at 11.20 and then his parents went to the other students who were also attending tuition class with Rahul. They told that soon after the class was over Rahul had proceeded towards his residence and then his parents returned to the residence and told that a lady has stated that in Street-6 two boys have taken Rahul in black coloured Alto Car. His father informed the matter to his two friends Anwar Ahmed and Anil Kumar Gupta who came to their residence.
51. He has further deposed that they searched his brother and were sitting out of the house when at about 2.30 pm in he received a call on his mobile and the caller told that Rahul was in his custody and said that he will call again after half an hour. At about 3 pm again he received call and the caller said to arrange Rs. 8 lakh till 5 pm of the next day and said not to go to the police otherwise they will lose Rahul and then his father went to the police station with his friends.
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52. He has further stated that the caller called him by the mobile no. 9771169356 and he identified the caller from his voice that it was the voice of Santosh because he was known to Santosh Kumar Singh from his childhood. Again, at about 3.11 pm an SMS was received on his mobile on which again the ransom was demanded and threatening was given that in case they go to the police they shall lose Rahul.
53. On the next day he along-with his father, friends of his father namely Anil and Anwar went to Asansole via Dhanbad with police team. On 24th May at about 4 am Rahul reached on Asansole railway station by tempo. The police personnel went to Niyamatpur taking tempo driver and Rahul with them. He along-with his father's friends Anil and Anwar were standing on a road while police went ahead and after sometime returned back with Santosh Kumar, Nitish Vatsh and a lady with the ransom money kept in black colour bag. The witness identified Santosh Kumar Singh and Nitish Vatsh present in the court and said that he cannot identify other accused persons.
54. During cross-examination on behalf of accused Santosh Kumar Singh, the witness has stated that he does not remember that where and how many places he has gone to search his brother. The witness was unable to say the mobile number on which he has received the telephone call and has stated that the mobile was not regularly kept by him.
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55. He has stated that accused Santosh Kumar Singh was not regular visitor of his house but in the childhood, he used to come to his house. The witness has also not stated the correct time of departure from Asansole to Bokaro.
56. On the suggestion of the defence the witness has stated that all which he has stated in his examination in chief has stated before the police during his statement. During cross- examination on behalf of Nitish Vatsh and Sakun Dixit he has stated that police has recorded his statement on 21.05.2010. He has stated that after recovery of Rahul the police took him at first to the places where he was kept by the accused persons which is known as Lachchipur Dhal.
57. P.W. 6 Balendra Kumar is a police constable who has stated in his examination in chief that on 22.05.2010 he was posted in Technical Cell of confidential department of the office of Superintendent of Police, Bokaro. On that day a team was constituted by the Superintendent of Police of Bokaro for the recovery of kidnapped boy Rahul and he was also a member of the team. He was directed to remain with the father of Rahul which he obeyed. The kidnappers were asking for the ransom amount on mobile from the father of Rahul who was nervous and then he started talking with the kidnappers.
58. He has further deposed that the kidnappers called them to Dhanbad, Govindpur and Khalsa Hotel and lastly to the
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Asansole railway station and after that to board a passenger train. They further directed to throw the money bag near Sitarampur station but he did not throw the bag there. They were directed to leave the train at Kulti railway station and were again directed to come towards east cabin.
59. He further stated that the father of the kidnapped boy was said to come alone towards east cabin who alone went there. On returning father of kidnapped boy said that they took the bag of money and have said to leave the boy on Barakar railway station. Thereafter, they went to the Barakar railway station but did not find the boy and then contacted the kidnappers on the phone who became ready to send the boy at Asansole railway station.
60. He has further deposed that the team went to the Asansole railway station where the boy reached on a tempo and was recovered by the police team. On identification of the victim boy the police team raided the residence of the kidnappers with the help of the local police from where the kidnappers were arrested and the money paid in ransom was recovered. The witness identified Santosh and female kidnapper present in the court and said that the third man arrested was Nitish Vatsh. The witness has further stated that they returned Bokaro with the recovered boy, kidnappers and the money given in ransom.
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61. During cross-examination this witness has stated that he is a science graduate and has talked with the kidnappers presenting him a relative of the father of Rahul. The witness could not tell the number of mobile from which call were made but he has stated that he was receiving the call on mobile no. 9973379521 which was his personal mobile as the battery of the mobile of the father of Rahul was discharged. The witness has stated that he cannot say that how many times he attended the call of kidnappers and also cannot say that who was calling from other side.
62. The witness has further stated that his mobile was seized by the police and the SIM which was used in the mobile was in the name of one friend Dharmendra Kumar. Further during cross-examination, the witness has stated in detail how many times they stayed at Sitarampur and Kulti. The witness denied the suggestion put by the defence that he has not stated to the police in his statement that on the instance of the auto driver and kidnapped boy, the place where the kidnappers were hiding was raided and kidnappers were arrested along with the ransom money.
63. On cross-examination on behalf of accused Santosh Kumar Singh the witness has stated that he has gone on motorcycle and the members of other police team were on four-wheeler which was driven by police driver. They went to Dhanbad and after that to Khalsa Hotel and till night
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remained in the vehicle. They were at Asansole till the arresting of the kidnappers.
64. P.W. 7 Sukhwant Singh who was also a member of team constituted by police has also stated in his examination in chief that on 22.05.2010 he was posted in B.S. City police station Bokaro when the information of kidnapping of a boy Rahul was received in the police station. A police team was constituted by Baleshwar Sahu the then police officer of the police station for the recovery of the child and arresting the accused persons.
65. On receiving the information from Technical Cell, the witness was deputed at Salampur and Dendua and after that at Maithan and Khalsa Hotel, Govindpur. On 23.05.2010 he was present at Asansole station at 10 pm night and at about 1.30 am went to Kulti. Rahul was recovered at 4 am in the morning of 24.05.10 with the help of Niyamatpur police station they raided the house of Ramakolen from where Santosh Kumar Singh, Tamanna @ Tanu and Nitish Vatsh were arrested and the money paid as ransom was recovered and they all were taken to Bokaro.
66. He has further deposed that from the garrage of Nitish Vatsh at Sector-II/A, Bokaro a Alto Car and a country-made pistol was recovered and Sakun Dixit was also arrested. The witness has further stated in his examination in chief that they reached at the house of Ramakolen on the instance of
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Rahul. The witness identified Taranum @ Tanu and Santosh Kumar Singh present in the court and claimed to identify Nitish Vatsh and Sakun Dixit.
67. The witness has stated during cross-examination that he cannot produce any written evidence in support of constituting the police team but has stated that Manoj Kumar Sharma, Vikram Kumar and Baleshwar Sahu were the member of the team. Some police personnel again joined the team but he does not remember their names. Total 7 police officers were member of the team which proceeded to Govindpur and Dhanbad by Scorpio vehicle. They stayed at Govindpur Hotel in the night and proceeded towards Asansole in the morning of 23rd and remained present at the railway station till the morning of the next day.
68. The witness has stated that they raided and surrounded the house on the instance of Rahul and accused persons Nitish, Tamanna and Santosh Kumar Singh were present on the same place and they were arrested by the police.
69. P.W. 8 Manoj Kumar Sharma is also a police constable posted in Jaridih P.S and was also a party of the team. This witness has stated in his examination in chief that he had gone with the police officer Baleshwar Sahu on 22.05.10 to Khalsa Hotel and after receiving information went to the Asansole station where Rahul reached by tempo at about 4.20am and they went with Rahul to the local police station
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and raided the house of Ramakolen at Lachchipur Dhal on the instance of Rahul and arrested Santosh Kumar Singh, Tamana @ Tanu, Santosh Paswan and one another. Rs. 1,75,000/- cash was also recovered from the house and the accused persons were arrested and the process of seizure was completed there and then they returned to Bokaro Steel City with the arrested accused, recovered money and kidnapped boy Rahul.
70. During cross-examination on behalf of Santosh Paswan, this witness has denied the suggestion put by the learned Counsel that accused Santosh Paswan was not arrested from the house which was raided by them.
71. During cross-examination on behalf of Santosh Singh the witness has stated the names of the some of the police personnels of the team but could not tell the actual number of the police team and also could not tell when the ransom money was taken by Santosh Kumar Singh. The witness has stated during cross-examination that after the recovery of the kidnapped boy they went to Niyamatpur police station and then on the information of the boy went to Lachchipur Dhal and raided the house of Ramakolen.
72. In para 8 of his cross-examination this witness has stated that the father of kidnapped boy and his friends were not with them. During cross-examination by Nitish Vatsh and Sakun Dixit, the witness has stated that he was the member
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of the team of police officer Baleshwar Sahu and the place where he was deputed was controlled by Hawaldar Ranveer Singh on the direction of Junior Police Officer. The witness could not tell the number of tempo on which Rahul reached on Asansole station.
73. P.W. 9 Shubham Choudhary @ Rahul Kumar is the victim boy who was kidnapped by the accused persons and was aged about 12 years at the time of the examination on 09.12.2011.
74. This witness has stated that on 21.05.2010 he has gone to attend tuition class at the residence of Anu Madam and was returning to his residence at about 11.20 am. When he reached on the turning of his house near a Gumti, Santosh Kumar Singh and Nitish Vatsh were standing there with a black-coloured Alto car. Santosh Kumar Singh called him and said to come with them for walking. When he said that he had to go to Chas Market with his father and mother, he was dragged, caught hold by his hand and seated him in the car. Santosh Kumar Singh sat with him on the back seat of the car and Nitish Vatsh was driving the car. They were driving the car towards Ram Mandir but turned mid-way and went to Co-operative colony. After stopping the car Nitish Vatsh went out of the car for two minutes and returned back and then told Santosh that he could not find the material.
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75. The witness has further deposed that they took him to Basanti More via Sector-IV. Santosh Kumar Singh told someone on telephone that he has lifted and then again turned the car and went towards Sector-VIII via Bokaro General Hospital and purchased 5-6 tablets which was like tablet of Bhang and one bottle of water and then proceeded towards Sector-XI. Santosh Kumar Singh told him to eat the tablets and when he denied to eat, he showed him pistol and threatened to kill, then he consumed the tablets. Then they took him to Dhanbad where other two persons namely Santosh Paswan and Sakun Dixit also rode on the car. From Dhanbad they took him to Maithan where they took him out of car. Santosh also came out of the car. The rest of the persons said to Santosh that they are returning to Bokaro and shall inform the activities of the police to him.
76. The witness further stated that Santosh Kumar Singh took him into the forest area of Maithan and seated him there. He had made call to someone on mobile and said to pay Rs. 8 lakh as ransom and in case of no payment was made, he threatened to kill him. At about 6 to 7 pm Santosh Kumar took him to a hotel and locked him in the room. He carried some food for him and after eating the food he slept there.
77. He further deposed that on second day they remained there in the hotel and at about 4 pm Nitish Vatsh came there
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and again at about 6-7 pm Nitish Vatsh and Santosh took him towards river bank. They stayed there till the night. In the early morning at about 3-4 am they took him to Asansole by bus. At Asansole Santosh and Nitish Vatsh took him to a room where a lady was present whose name was Tamanna. When Tamanna asks them as to who the boys is then Santosh whispered something in her ear and after taking meal this witness again slept. When in the evening he awoke Santosh and Nitish Vatsh went somewhere and again he slept there in the night after taking meal. At about 4 am Tamanna awakened him and talked someone on telephone and said that she is getting somthing ready. She handed over mobile to this witness and said to talk to and then Santosh told him on mobile that his father has sent a tempo which is reaching within 5 minutes. After 10 to 15 minutes Santosh and Nitish Vatsh came there. Santosh was having a black-coloured bag with him. They took him with them and seated him in the tempo.
78. He further deposed that they said the tempo driver to drop him (victim) near ATM at Asansole railway station. The tempo driver took him to the Asansole station where after coming out of the tempo he found that his father was present there. The police team surrounded the tempo and caught him and took him to the Niyamatpur police station. The police team took him with the tempo driver to the room where he
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was kept and he showed the room to the police. The police arrested Santosh Kumar Singh, Nitish Vatsh and Tamanna from there and also recovered black coloured bag kept under Chouki (wooden cot) and took them to Niyamatpur police station. There the police recorded the statement of Nitish Vatsh, Santosh and Tamanna and after that they returned to Bokaro and reached Bokaro about 10.30 am.
79. Further during the examination-in-chief, the witness has stated that he has gone to the Chas jail for identification on 28.05.2010 and there he identified Santosh Kumar Singh, Nitish Vatsh, Sakun Dixit and Tamanna. Again, during the identification parade dated 11.06.2010 he also identified Santosh Paswan.
80. The victim boy has also stated that his statement was recorded by the Magistrate in the court on 29.05.2010 on which he has put his signature after reading it. On his identification his statement recorded by the Magistrate was marked Ext. 3. This boy identified accused Tamanna present in the court and claimed to identify other accused persons.
81. During the cross-examination on behalf of Nitish Vatsh and Sakun Dixit, this witness has stated that he was student of MGM Higher Secondary School at the time of occurrence. In the answer of the question put by the ld. Defence counsel the boy has stated that 1 meter = 100 c.m. and has also told his height to be at about 5 feet. The witness has also stated
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that he knows Santosh Kumar Singh from his childhood who offered him to go by car instead of walking. He was not known to other persons before the occurrence. He came to know the names of other accused persons as was told by Santosh Singh. He has stated the names of accused persons as stated by Santosh Kumar Singh. The boy has stated that he did not raise any alarm at any place where he was kept by accused persons. In the answer of the question on identification parade the boy has stated that the accused persons were standing in a line along-with several persons.
82. He participated in identification parade for the first time on 28.05.2010 and second time on 11.06.2010. During cross- examination on behalf of Sakun Dixit the witness has given a detailed description of the places where he was taken by the accused persons by car. The boy could not say the number of the room of hotel at Maithan where he was kept on 21.05.10 but has stated that the register was filled. Further during the cross-examination, the witness has said that he met the police only on 24.05.2010 in the morning and all the police personnel were in civil dress.
83. In answer of the question during cross-examination on behalf of Santosh Paswan the witness has stated that police have shown him, Santosh Paswan in the police station before the identification parade and he has identified him in the police station and has identified him in the jail also.
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84. P.W. 10 Dinesh Kumar Gupta was the inspector of police and posted as officer-in-charge of B.S.City police station on 21.05.2010. The witness has stated in his examination-in-chief that on that day he received a written report of informant Rajesh Prasad informing that his son was kidnapped while returning from tuition class. He named his earlier neighbour Santosh Kumar Singh as kidnapper and also submitted through written report that Santosh Kumar Singh demanded Rs. 8 lakh in exchange of releasing his son.
85. He has further deposed that on the basis of written report he has registered B.S. City P.S. Case No. 122/10 and handed over the charge of investigation of the case to S.I Baleshwar Sahu. The witness identified the endorsement made by him on the written report which is marked as Ext. 1/1 on his identification. The formal FIR was written by constable Bipin Kumar Singh on his direction which was also signed by him. On the identification of the witness the formal FIR was marked as Ext. 4. Further during the examination- in-chief the witness has stated that he informed the occurrence to the Superintendent of Police, Bokaro and requested him to provide the call detail report and tower location of the mobile phone by which Santosh Kumar Singh was calling.
86. He has further stated that on 22.05.2010 he came to know that the tower location of the accused was at Maithan
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and then on 22.05.10 the I.O, S.I Baleshwar Sahu, S.I. Deepak Kumar, S.I. Suresh Prasad and armed forces proceeded towards Maithan area to search the accused. On the same day in the evening i.e. 22.05.10 another team was constituted in his leadership comprising of inspector Ashok Kumar, officer-in-charge of Chas police station, S.I. Basudeo Sah, ASI Ashok Kumar Singh, ASI Chandradeo Singh, constable Harendra Pathak and constable Niranjan Prasad and he proceeded with this team in the evening of 22.05.10. Driver Kailash Prasad and constable Balendra Kumar of technical cell were also sent with their team.
87. He has stated that the informant was called by the accused to come at Dhanbad railway station with the ransom money and when they proceeded towards Dhanbad railway station and were to reach to the station the accused informed that he has changed his place and called at Khalsa hotel, Govindpur, Dhanbad. On receiving that information, they followed the informant to Khalsa hotel. After sometime the accused again called and said to come at Nirsa with the money. Then they went to Nirsa in the same night. They tried to contact the accused there on phone but could not succeed. On the next day i.e. 23.05.10 accused said to come at Asansole railway station. Then all the members of the police team reached at Asansole police station and waited till the evening. The accused was talking with the informant after
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some interval and was also communicating through SMS. The informant was nervous and was unable to talk to the accused properly and thereafter constable Balendra Kumar made contact with the accused on his own mobile and sometime on the mobile of informant. In the night the accused said to informant to come at Kulti railway station and to board a passenger train and then the informant, constable Balendra Kumar and other police personnel went with the money and boarded on passenger train. This witness along-with his team also proceeded towards Kulti railway station by road.
88. He has further deposed that in the night of 24.05.2010 at about 1 pm the accused called the informant and said to come alone with the bag of money towards the cabin of the station and directed to put the bag beside the railway line. Then informant went with money bag and kept it on the place as directed by the accused. Balendra and others were watching from side and two persons came and lifted the bag. The informant identified them and told that Santosh Kumar Singh has lifted the bag.
89. He has stated that the accused had made a call to the informant and directed him to go to Barakar. The police team went to Barakar but they did not find the victim boy. Again, on contacting the accused said that he is sending the boy at Asansole railway station. Then the team went to the Asansole
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Railway station where the kidnapped boy reached on tempo at about 4 am.
90. He has deposed that the police team apprehended the tempo driver who told the place from where he had taken the boy. This place was a house situated at Lachchipur Dhal in Niyamatpur police station, West Bengal. Then the police team along-with the tempo driver and the recovered boy went to Niyamatpur police station and with the help of Niyamatpur police raided the house of Smt. Ramakolen on the identification of the kidnapped boy and the tempo driver. They arrested Santosh Kumar Singh, Nitish Vatsh and Tamanna @ Tanu who were living there as tenant. On identification of the accused persons the ransom money Rs. 1,75,000/- kept in air bag was also recovered from the room.
91. He has deposed that all the accused persons confessed their involvement in the commission of alleged crime and based upon their confessional statement the black colour Alto car was recovered from the garage of Nitish Vatsh and the Pistol used in the offence was also recovered from the dicky of car.
92. He has further deposed that the aforesaid arrested accused persons have also stated about the involvement of their friends Santosh Paswan and Sakun Dixit in committing the offence with them. The police inspector identified the
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accused Santosh Kumar Singh and Tamanna @ Tanu present in the court.
93. During cross-examination the witness has stated that the I.O has recorded his statement during the investigation and has also stated that the ransom money to be paid to the accused persons was carried by the informant which he has seen. The witness could not say that what time in the night of 22.05.2010 they reached at Khalsa hotel but has told the names of the member of the team of police which accompanied him at Khalsa hotel.
94. The witness has also stated that he had deputed I.O Baleshwar Sahu, S.I. Deepak Kumar, S.I. Suresh Prasad and other police personnels at Asansole railway station. The witness has also stated that one team of the police has proceeded at about 10 pm in the night from Asansole to Kulti by train and the other team headed went to Kulti by road.
95. In para 13 of his cross-examination the witness has stated that the statement of tempo driver and Rahul was taken by the I.O and in para 16 of the cross-examination the witness has stated that he does not remember as to whether the apprehended accused persons have told the names of other accused persons and their friends or not.
96. In para 17 the witness has stated that the place from where the boy was recovered is the area of government railway police. The witness has again reiterated in para 18
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that the police team reached on the Kulti station before 1 pm in the night of 23/24.5.2010 and some police personnel were spread here and there and constable Balendra Kumar was with the informant along-with 3-4 friends of the informant. The witness has also stated that on each note which has to be given as ransom, the informant had put his initial signature. The informant had gone alone to keep the money near the cabin.
97. During cross-examination this witness has proved the fact in para 25 of cross-examination that the seizure list was prepared in the house of Ramakolen. In para 31 of the cross- examination the witness has stated that the kidnapped boy has stated about the occurrence in his presence.
98. P.W. 11 Rajesh Prasad is the father of kidnapped boy and the informant of the case who has stated in his examination in chief that his son had gone to attend the tuition class in Qrt. No. 4-185, Street-6, Sector-II/C at the residence of Anu Kujur Madam. He had said to his son to come early as they have to go to market and they were waiting him but he did not return till 11.30 am and then he went to the house of Anu Kujur who told that she had finished the class at 11.20. Then they went to the friends of Rahul who were also taking tuition with him and asked about Rahul and started searching him. During the search when they came on the turning of his residence some persons were
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gathered there among whom a lady told them that two boys had taken Rahul by a black colour Alto Car. The informant continued searching his son and called his friends Anwar Ahamad and A.K. Gupta by telephone and searched his boy with them here and there.
99. He has further deposed that at last, he along with his friends were sitting at his residence and were thinking for further action when a phone call was received on mobile and that time mobile was with his elder son. The caller told on mobile that Rahul was in his custody and in good condition and said that after half an hour he will call again and after that call was disconnected. His elder son said that he identified the voice of the caller who was Santosh Kumar Singh. He also told that the call was made from mobile no. 9771169356. The phone was received by his elder son on mobile no. 8873577537.
100. He has further deposed that they started waiting for second call and at about 3 pm again the caller had made call and said to arrange Rs. 8 lakh till 5 pm of the next day and the caller also said that they will lose Rahul if the matter is informed to the police. Then the informant came to know that his son was kidnapped. Then he went to the police station with his friends and submitted a written report before the police of Bokaro Steel City police station. The written report was written by his friend Anwar Ahmad on the dictation of
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the informant on which the informant put his signature after reading it. The informant identified the written report already marked Ext. 1. Further in his examination in chief the informant has stated that again call was received on the mobile of his elder son when they were at police station and the caller said to arrange Rs. 8 lakh and again threatened that in case of not arranging the money they will lose Rahul.
101. He has further deposed that the police told to go back to their residence and directed to furnish further information if any received. In between 4.30 to 4.45 police came to their residence, inspected the place of occurrence and inquired from his family member and his friends. On the next day in the morning, he again went to the police station where it was told that the police team is going to search the boy and one team has already proceeded at about 10.30 am. They told him to arrange some money till the evening and accordingly he could arrange Rs. 1,75,000/- till the evening. The informant put his initial signature on each of the notes in presence of the police officers in which 91 notes were of Rs. 1000/- and 168 notes were of Rs. 500/-. All the money was kept in bundles in a black colour bag.
102. He has stated that on 22.05.10 Santosh Kumar Singh called on mobile at about 5 pm and he told him to come alone on motorcycle. At first, Santosh Singh called him at Dhanbad railway station then this witness informed the same to the
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police officers. The police team kept constable Balendra Kumar Singh with him and directed him to tell the kidnappers that he is relative of the victim boy. After that he along-with constable Balendra Kumar proceeded towards Dhanbad on motorcycle. The officer in charge of police station and police force followed them on vehicle. After reaching Dhanbad he contacted the kidnappers who told him to come towards Dhanbad railway station and when they proceeded towards Dhanbad railway station, the kidnappers called and said to come Hirapur market complex and again called and said to come to Khalsa hotel, Govindpur. Then they reached at Khalsa hotel, Govindpur and started waiting.
103. He has stated that at about 11 pm in the night the kidnappers directed him to come towards Nirsa and then informant and Balendra Kumar proceeded to Nirsa. The police team followed maintaining some gap. After reaching Nirsa they started waiting and in the meantime the battery of the mobile phone of informant was discharged and they could not contact the kidnappers till two hours. Then the kidnappers made call on the mobile on his wife and abused her and then his wife told him that her husband has gone with the money. Then the informant called the kidnappers by the mobile of Balendra Kumar and said them to contact on that mobile stating that battery of his mobile has discharged. Then the kidnappers said that now they shall call at about 10
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am on the next day and switched off their mobile. They stayed there and started waiting. At about 10 am a call was made on the mobile of Balendra Kumar and said to come to Asansole railway station, then the informant and others went with the ransom money. In the day after some interval the kidnappers started threatening to informant that they will kill Rahul as he has come with the police.
104. He has stated that on 23.05.10 at about 8.30 pm the kidnappers called and directed to inquire about the train going towards Dhanbad and accordingly they inquired and came to know that a local train is scheduled to depart at about 11 pm in the night. Then the kidnappers directed him to sit in third coach of the train. Informant and Balendra Kumar took seat in the third coach of the train and the members of police team boarded on the train here and there. When the train reached at Sitarampur the kidnappers said to throw the bag on the platform but the informant avoided their call saying that the voice is not clear. Then they directed him to leave the train at Kulti railway station. After that they de- boarded the train at Kulti railway station and started waiting for the next call.
105. He has stated that in between 1 to 1.15 am in the night the kidnappers called and directed him to proceed towards Dhanbad at outer signal alongwith the ransom money. Then the informant alone proceeded to the outer signal by the side
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of railway track. After sometime the kidnappers directed him to stop and after 10 seconds Santosh Kumar Singh and Nitish Vatsh came there and told him to put the bag of money. He put the money bag in front of them and they told him return and not turn around. When the informant asked that when they will return his son, they said that he will get his son after half an hour. The informant turned back and heard the sound of running and when he turned back, he saw the accused persons fleeing. Then he returned to the platform and started waiting for the next phone. After half an hour he received telephone call through which they directed to come to Barakar where they will hand over his son.
106. He has further deposed that he along with others reached to Barakar by Mourya Express. At about 2.30 am in the night the informant contacted the kidnappers who directed them to come to Asansole. Then the informant and constable Balendra Kumar went to Asansole. At about 4 am in the night the kidnappers called and gave a number of tempo which was WB-37B-4943 and also told the mobile number of the tempo driver and said to receive his son near the ATM. After 30 to 40 minutes the tempo reached there with his son and the police team directed him to receive his son and to sit in the vehicle of police team.
107. He has stated that the police apprehended tempo driver who said the police team to take them to the place from
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where he was taking the boy. The police team went to the Niyamatpur police station taking the tempo driver with them and the informant was also with the police team. With the officer-in-charge of Niyamatpur police station proceeded towards the place from where the tempo driver has taken Rahul on his tempo. From that place Rahul took the police team to the house where he was kept by the kidnappers. The police team raided the place from where Santosh Kumar Singh, Nitish Vatsh and a lady Tamanna were arrested. The team also recovered the bag of ransom money kept under the chouki (wooden cot) in the room. The police opened the bag and found that money was kept in the bag which the police showed to the informant. The police prepared seizure list.
108. He has further deposed that they came to Niyamatpur police station and from there proceeded towards Bokaro and reached Bokaro at about 10.45 am. He deposed that on asking Rahul told that when he reached the turning of the house after attending tuition class, Santosh Kumar Singh and Nitish Vatsh were standing there with a black colour car. Santosh called Rahul and said to come with him as he has to purchase a gift for a boy of his age group. When he refused to sit in the car, Santosh Kumar forcibly seated him in the car. Nitish Vatsh was driving the car who drove the car via Ram Mandir to Sector-IX they purchased tablets at Sector-VIII and
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a water bottle and took him towards Dhanbad via Sector-XI. In the way they forced him to consume the tablets.
109. The witness further deposed that his son also stated that at Dhanbad two other persons Santosh Paswan and Sakun Dixit also boarded on car. They kept him at a hotel at Maithan. On the next day in the evening they took him to Lachchipur Dhal, Asansole wandering here and there and kept in a house where Tamanna was living.
110. The witness has further stated that he has gone in the TIP on 28.05.2010 with Rahul and has identified Santosh Kumar Singh, Nitish Vatsh and Tamnna. On 12.06.2010 he had also identified the money which he has paid as ransom as he has put his initial signatures on the notes. The informant claimed to identify the accused persons.
111. During the cross-examination on behalf of Tamanna the informant has stated that he has seen her at her residence. The witness has stated during cross-examination that 14 police officers including officer-in-charge of Bokaro Steel City Police station Baleshwar Sahu were with him during the search. The witness has also stated that the place where his son was kept is at the distance of 20 minutes running from Asansole station. His son had only identified the place where he was kept and has not told the address. The witness has further stated that there was no tape or sedative substance were found in the room of Tamanna and he further told that
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his child was free and not tied with rope inside the room. Tamanna told to the police in his presence that she is the wife of Santosh Kumar Singh.
112. The witness denied the suggestion put on behalf of accused Tamanna that the witness has gone willingly on a tour and was not kidnapped.
113. During cross-examination on behalf of Santosh Paswan the witness has stated that he was not known earlier with him.
114. Further during cross-examination on behalf of Santosh Kumar Singh the witness has stated that an unknown lady has shown the place from where his son was lifted by the kidnappers on car which he told to the police inspector D.K. Gupta on 21.05.2010 at about 4.30 pm. Further the witness has stated that the FIR was lodged on the written report and after lodging the FIR the police informed the matter to the Superintendent of Police.
115. Regarding the place of occurrence, the witness has stated that in all sides of the place of occurrence there are road and quarters and in the north west corner there is a shopping centre.
116. P.W. 12 Baleshwar Sahu is the sub-inspector of police and the investigating officer of the case. The I.O has stated in his examination in chief that he was posted as ASI of police in Bokaro Steel City police station on 21.05.10 when B.S.
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City P.S. Case No. 182/10 was lodged by the officer-in-charge of police station on the written report of Rajesh Prasad and he was given the charge of investigation of the case.
117. After getting charge of investigation, this witness had recorded the statement of informant Rajesh Prasad and investigated the place of occurrence and from the place of occurrence, the residence of informant and the place where the kidnapped boy goes to attend tuition class are at the same distance of about 200 metres. The informant has stated that he has prepared a map of the place of occurrence which is mentioned in para 4 of the case diary. During the investigation he recorded the statements of Jyoti Devi, Abhishek Kumar, Anu Kujur @ Anu, Vikash Kumar Singh, Anwar Ahamad and Anil Gupta. He informed the mobile no. 8873577537 of the informant on which the ransom was demanded by mobile no. 9771169356 to the technical cell of Superintendent of Police and requested to inform the location of the mobile immediately. During the investigation he also raided the house of the accused persons Santosh Kumar Singh, Nitish Vatsh, Om Lal Dixit @ Sakun and Santosh Paswan but they were found absconding.
118. He came to know from the technical cell of the office of Superintendent of Police, that the location of Mobile no. 9771169356 was at Salampur and Denduwa in West Benal and he was directed vide memo no. 3099 confidential
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21.05.10 of police office to go out of state with the team constituted by the Superintendent of Police on which the permission was also granted by DIG of the area. In the team constituted by Superintendent of Police, police Deepak Kumar, police Khuswant Singh, police Vikram, police Manoj Kumar Sharma and sub-inspector Suresh Prasad were the members and he went with the team to Salampur via Dhanbad and Maithan and also went to Denduwa market after obtaining the location of the mobile from time to time.
119. In the meantime another police team was also constituted by the Superintendent of Police headed by inspector/officer-in-charge of Bokaro Steel City police station, D.K. Gupta, inspector Ashok Kumar of Chas police station, S.I Basudeo Sah, ASI Ashok Kumar Singh,C.D. Singh, police Balendra Kumar, driver Kailash Prasad, police Harendra pathak and Niranjan Prasad. The team was directed to raid as per the direction of technical cell.
120. After sometime the information was received from the technical cell that the location of mobile no. 9771169356 is in Maithan area and then he went towards Maithan and gave information to other team and inquired Amarkunda village. After sometime information was given by the technical cell that the kidnappers have directed the informant to come with the ransom money at Dhanbad railway station and has threatened to kill Rahul if they informed the matter to the
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police. He also received information on phone that the kidnappers have sent SMS to the informant threatening to kill Rahul if he invloves the police. Again, he received the information from technical cell that the kidnappers have called the informant with the money at Hirapur Shopping complex and this information was conveyed to second team which went there and this witness was directed to camp at Govindpur. After that the accused persons changing the place called the informant at Nirsa and Niyamatpur. They were always telling that he has come with the police.
121. On 23.05.2010 it was informed to this witness that the kidnappers have called with the money at Asansole station. In the meantime the technical cell informed him that the mobile no. 9771169356 was registered in the name of Santosh Kumar Singh, S/O. R.K. Singh of B.S.City, Sector-II, Qrt. No. 135 and other mobile no. 9798736767 was registered in the name of Santosh Kumar Sector-III/B, Qrt. No. 334, P.S. B.S.City and mobile no. 9308344144 was in the name of Ekram Ansari, resident of 158, Colidih, Katras. The team in charge Dinesh Kumar Gupta proceeded with his team towards Asansole and other team was directed to collect information at Niyamatpur and Lachchipur.
122. Constable Balendra Kumar Singh was deputed with the informant with mobile no. 9973379521 to remain in contact with the kidnappers. Again, the SMS was sent by the
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kidnappers that if he did not pay money till 7 pm they will kill Rahul at 9 pm and again said to call him at about 6 pm. The information of SMS received was also given to both the teams. Again, accused persons were informed through SMS to follow their directions.
123. During the investigation the I.O further came to know that the criminals have directed the informant to come alone towards Barakar from Kulti station and the team in- charge directed all the members to remain separate to each other. The I.O then received the information that the ransom money was paid by the informant to the kidnappers and they have said to send the kidnapped boy to Asansole railway station. The I.O further came to know that the kidnapped boy reached on the Asansole railway station by Tempo no. WB 37B-4943 driven by Birendra Prasad and after sometime Rahul reached there by tempo. After that the kidnapped boy and the informant were taken to Niyamatpur police station and with the help of Niyamatpur police the house of Ramakolen was raided from where Tamanna @ Tanu, Santosh Kumar Singh and one other boy Nitish Vatsh were arrested and money paid as ransom kept in a bag was also recovered and the seizure list was prepared on which witnesses Birendra Prasad, Md. Kaisar and accused persons Santosh Kumar and Nitish Vatsh put their signatures and Tanu @ Tamanna put her thumb impression and Sri Partho Singh officer-in-charge of
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Niyamatpur police station also put his signature. The seizure list is marked Ext.5 on his identification.
124. Further the I.O has stated in examination-in-chief that he recorded the statement of the kidnapped boy and arrested accused persons Santosh Kumar Singh, Nitish Vatsh, Tamanna @ Tanu and also recorded their statements. Accused Santosh Kumar Singh said that a pistol which he used to threaten Rahul is kept in the car used in kidnapping which is in the garage of Nitish Vatsh. On the basis of his statement the police raided the place and seized the same. The I.O has stated that he has recorded the confessional statement of Santosh Kumar Singh, Nitish Vatsh and Tanu @ Tamanna who all have put their signatures and thumb impression accordingly on each page of the statement at Niyamatpur. The confessional statement of Santosh Kumar Singh and Nitish Vatsh were marked Ext. 6 and 6/1 on his identification.
125. Further the I.O has stated that thereafter they returned to Bokaro with the recovered boy and on the identification of accused persons they arrested Om Nath Dixit @ Sakun and also recorded his confessional statement who also put his signature on the confessional statement which is marked Ext. 6/2 on the identification of this witness. On the basis of confessional statement of accused persons Santosh Kumar Singh, Sakun Dixit and Nitish Vatsh the I.O recovered black
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coloured maruti Alto car registration no. JH09C-876 from the garage of Nitish Vatsh situated adjacent to Sudha dairy booth in Sector-II shopping centre. He also recovered a pistol from the dikky of the car and prepared seizure list which was prepared in carbon copies and was signed by the witnesses. The I.O identified his writing and signature along-with the signatures of the witnesses on seizure list which was marked Ext.7 on his identification. The I.O recorded the statement of Anwar Ahmad and Anil Gupta, the witnesses of the seizure list.
126. During the search of Santosh Kumar Singh, a mobile set having BSNL SIM no. 9470585560 and the EMI no. 910041036428367 and 910041036428384 was recovered from his possession for which the I.O also prepared the seizure list and seized the mobile. During the investigation the I.O recorded the statements of S.I Basudeo Sah, inspector cum officer-in-charge, Bokaro Steel City police station, D.K. Gupta, inspector cum officer-in-charge of Chas police station, Ashok Kumar, police 173 Balendra Kumar, Police 226 Sukhwant Singh, police 211 Vikram, police 391 Manoj Kumar Sharma, S.I Deepak Kumar, S.I Suresh Prasad, police driver Kailash Prasad, police 462 Harendra pathak and police 933 Niranjan Ram.
127. He produced the accused persons before the court and requested for their T.I. Parade and also requested to the court
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to record the statement of kidnapped victim boy u/s. 164 Cr.P.C which was recorded by the Judicial Magistrate. The I.O filed a request letter before the Superintendent of Police for call detail report of the mobiles used by the criminals.
128. The accused Santosh Paswan who has surrendered before the court was taken by the I.O on police remand. Santosh Kumar said that SIM no. 9771169356 was in the name of Santosh Kumar and was used by him. Santosh Paswan told his mobile no. 9798736767. This witness also told that Sakun used mobile no. 9308344144, Tamanna was using mobile no. 9547258836 and Nitish was having mobile no. 8002812311 while accused Santosh Paswan was using mobile no. 08986618330. During the investigation the identification parade of the ransom money recovered was conducted by B.D.O, Chas. The I.O inquired into the criminal history of Santosh Pawan and found that he was also accused of B.S.City P.S. Case no. 181/03, u/s. 25(1-b)a 26/35 Arms Act in which the charge-sheet has been submitted. The I.O obtained the call details report of the mobile numbers and found that mobile no. 9771169356 was registered in the name of Santosh Kumar Singh son of R.K. Singh, mobile no. 9798736767 was in the name of Santosh Kumar and 9308344144 was in the name of Md. Ekram Ansari. From CDR the I.O came to know that three mobile nos. 910041036428384, 910041036428367 and
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910041036428370 was used in the crime in which the SIM No. 9771169356 was used which was in the name of Santosh Kumar Singh. The I.O has stated that he has mentioned the CDR report in para 178 of the case diary. By this mobile number the SMS was sent to the informant on 25.05.10 and it was used on other dates too.
129. Further the I.O has stated that he also recorded the statements of police 38 Rakesh Kumar and Rajesh Prasad and obtained an another report from S.P. Office through which it was reported that the arrested accused persons and their families and informant and his family members used the mobiles during that period as followed- (i) Santosh Kumar son of Radha Kisun Singh, mobile no. 9771169356, mobile no. 9470585560 and mobile no. 8092359985, (ii) Om Nath Dixit @ Sakun son of Ravi Kishore Dixit, Sector-II/A, Qrt. No. 3-68, mobile no. 9808344144, mobile no. 9835396466 and mobile no. 9708677141, (iii) Nitish Vatsh son of Sanjay Vatsh, Sector-II/A, Qrt. No. 3-14, mobile no. 08986618330 and 8002812399, (iv) Tamanna @ Tanu daughter of Haidar Pathan resident of Bartala, P.S. Bartala, Kolkatta at present Lachchipur, Niyamatpur was having mobile no. 9547258836 and 9547258832 while no. (v) informant Rajesh Prasad and family used mobile no. 9835753890, mobile no. 8873577537, mobile no. 9835347472, mobile no. 9534236969 while police 173 Balendra Kumar was using mobile no. 9973379521 and
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9835347969 and accused Santosh Paswan was having mobile no. 9798736767. The I.O submitted charge-sheet against Sanotsh Kumar Singh, Nitish Vatsh, Om Nath Dixit @ Sakun Dixit, Santosh Paswan and Tamanna @ Tanu. The I.O also identified the seizure list through which the mobile of accused Santosh Kumar Singh was seized which is marked Ext. 8 on his identification.
130. The I.O also identified the writing of formal FIR and signature of officer-in-charge of police station over it which is marked Ext. 9 on his identification and has also identified the total call details reports in 12 sheets which he had obtained from the Superintendent of Police, Bokaro and this call detail report is marked Ext. 10 on his identification. I.O also identified the present accused persons and claimed to identify the rest who were represented through their counsel. During cross-examination on behalf of accused Tamanna the I.O told that she was living on rent in the house of Ramakolen but he has not verified this fact from the concerned police station. He has also not written the boundary of the place in the case diary from where the accused persons were arrested. Further during cross-examination, he has stated that except the oral statement of Ramakolen and the officer-in-charge of local police station there is no other ground of the identification of the house. He has stated during cross-examination that there
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was no tape or rope to tie the boy in the room was found, where he was kept by the accused persons.
131. During cross-examination on behalf of Santosh Paswan he has stated that the statement of the kidnapped boy recorded u/s. 164 of Cr.P.C was copied by him in the case diary same to same and he has also recorded the statement of the father of the kidnapped boy in para 181 of the case diary, but father of the boy has not stated in his statement that Santosh Paswan also rode on the vehicle at Dhanbad. The I.O has stated that similarly kidnapped boy Subham Choudhary @ Rahul has also not named Santosh Paswan in his statement given before the police. He has further stated that the mother of kidnapped boy has also not told in her statement that Santosh Paswan rode on vehicle at Dhanbad with other accused persons. The I.O has denied the suggestion that he has wrongly written the confessional statement of Santosh Paswan and forcefully took his signature over it and falsely implicated him in this case. The I.O has also stated that Santosh Paswan has not talked with any accused or the victim by his mobile no. 9798736767 as per the call detail report received by him.
132. During cross-examination on behalf of Santosh Kumar Singh the witness has stated that he has mentioned the time of the recovery of boy in para 63 of case diary but has not
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mentioned the time of taking the accused persons and victim to Niyamatpur police station.
133. During cross-examination on behalf of rest accused persons the witness has stated that he did not try to search the unknown lady who has told about the taking of kidnapped boy by car as told by her mother. The witness has also stated that he has mentioned in the case diary that the informant was carrying ransom money separately.
134. P.W. 13 Manish Kumar was Block Development Officer in Chas block at the time of occurrence and has conducted identification parade of the bundle of the notes recovered by the police. During examination in chief this witness has stated that on the direction of the court he conducted the T.I. Parade of material exhibit which is bundle of notes. Witness Rajesh Prasad came present before him who has identified the notes. During the identification in the ratio of 1:9 the similar notes were mixed with the referred notes among which the witness identified the same bundle which was recovered by the police. He prepared the identification chart and the witnesses Bipin Bihari Singh and Badsah Khan also put their signatures. The identification Chart is marked Ext. 11 on his identification.
135. During cross-examination the witness stated that the money was arranged by the officer-in-charge of the police
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station and the notes were not separately numbered. The witness identified the notes which all were signed by him.
136. P.W. 14 Srish Dutta Tripathi is the Judicial Magistrate, 1st Class posted at Bokaro and has conducted the T.I. Parade of accused Santosh Paswan on 11.06.10 on the request of Chief Judicial Magistrate, Bokaro. During examination in chief the witness has stated that the victim boy identified the accused and said that he was also sitting with other accused persons in the car by which he was kidnapped.
137. The witness has stated that the victim boy was aged about 11 years and as such this witness has tested the intelligence (I.Q.) of victim boy and permitted him to appear in the identification parade. The witness prepared the T.I. Parade chart which is signed by him and also by victim boy Shubham Choudhary @ Rahul. On his identification the identification chart is marked Ext. 12.
138. P.W. 15 Asif Ekbal who was Judicial Magistrate, 1st Class posted at Bokaro at the time of occurrence who had recorded the statement of the kidnapped boy Shubham Choudhary @ Rahul u/s. 164 Cr.P.C on 29.05.2010. This witness has stated in his examination in chief that on the direction of the C.J.M he recorded the statement of Shubham Choudhary u/s. 164 Cr.P.C in B.S.City P.S. Case no. 182/10. The witness identified the statement recorded by him which is marked as Ext. 3 on his identification. This witness has
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also conducted identification parade of accused persons Santosh Kumar Singh, Nitish Vatsh, Om Nath Dixit @ Sakun and Tamanna @ Tanu. Witnesses Rahul Kumar @ Shubham Choudhary and Rajesh Prasad had identified the accused persons. Witness Rajesh Prasad identified the accused persons Santosh Kumar, Nitish Vatsh and lady accused Tamanna @ Tanu while Rahul Kumar @ Shubham Choudhary identified all the four accused persons. He prepared the identification charts which are marked Ext. 13 and 13/1 on his identification.
139. During the cross-examination on behalf of Santosh Paswan the learned Magistrate has stated that the victim boy Rahul has not named Santosh Paswan during his statement given u/s. 164 Cr.P.C. He has named only Santosh. Nothing more important has been asked on behalf of the other accused persons.
140. This Court having discussed the testimony of prosecution witnesses is now proceeding to consider the grounds, basis upon which the impugned judgment of conviction and order of sentence is said to have been suffered from infirmity.
141. Further, we also deem it appropriate to answer the point for consideration in this appeal to whether the facts, in this case, attract the offence under Section 364-A IPC and if
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the answer is in the negative, would it be just and proper to modify the conviction to a sentence under Section 363 IPC.
142. To put the matter in perspective, the provisions of Section 361 read with Sections 362, 363, 364 and 364-A IPC ought to be compared. The said provisions read as under:
"Section 361. Kidnapping from lawful guardianship. -- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation. --The words "lawful guardian" in this section includes any person lawfully entrusted with the care or custody of such minor or other person.
Exception. --This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
*** Section 362. Abduction- Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
Section 363. Punishment for kidnapping. --Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 364. Kidnapping or abducting in order to murder. - Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Section 364-A. Kidnapping for ransom, etc.--Whoever
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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."
143. Section 361 of Indian Penal Code deals with ―Kidnapping from lawful guardianship‖ wherein it is stipulated that Whoever takes or entices, any minor male under sixteen years of age or female under eighteen years of age, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. ―lawful guardian‖ in this section means any person who lawfully entrusted with the care or custody of such minor or other person.
144. Abduction' is defined under Section 362 of the IPC wherein it is stipulated that if anyone by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. Thus, the essential ingredients to constitute the offence of abduction is use of force to compel any person or induces any person by deceitful means to move him from one place to another place.
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145. While abduction simpliciter may not technically be an offence under the IPC, it becomes a punishable offence when it is combined with another act. For example, abduction in order to commit murder is an offence under Section 364 IPC. So is abduction an offence if it is done with an intent to secretly or wrongfully confine a person (Section 365, IPC), or when it is done to compel a woman for marriage etc. (Section 366, IPC).
146. We note that Section 363 IPC punishes the act of kidnapping and Section 364 thereof punishes the offence of kidnapping or abduction of a person in order to murder him. Section 364A is an offence where kidnapping or abduction is made and a person is put to death or hurt; or a person is threatened with death or actually murdered, on demand of ransom.
147. Since, in the instant case we are concern with the alleged offence under Section 364A IPC, hence at this juncture it will be profitable to discuss the core and applicability of section 364 A of the IPC at length.
148. Section 364A of the IPC was inserted in the Penal Code, 1860 by an Act of Parliament (Act No. 42 of 1993 with effect from 22nd May, 1993). The Law Commission of India in its 42nd Report in 1971 had recommended insertion of Section 364A in IPC, though it was ultimately incorporated in the year 1993.
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149. It is pertinent to mention here that the Hon'ble Apex Court while referring the importance of section 364A of IPC in the case of Vikram Singh v. Union of India, (2015) 9 SCC 502 has observed as under:
"53. Applying the above to the case at hand, we find that the need to bring in Section 364-A IPC arose initially because of the increasing incidence of kidnapping and abduction for ransom. This is evident from the recommendations made by the Law Commission to which we have made reference in the earlier part of this judgment. While those recommendations were pending with the Government, the spectre of terrorism started raising its head threatening not only the security and safety of the citizens but the very sovereignty and integrity of the country, calling for adequate measures to curb what has the potential of destabilising any country. With terrorism assuming international dimensions, the need to further amend the law arose, resulting in the amendment to Section 364-A IPC, in the year 1994. The gradual growth of the challenges posed by kidnapping and abductions for ransom, not only by ordinary criminals for monetary gain or as an organised activity for economic gains but by terrorist organisations is what necessitated the incorporation of Section 364-A IPC and a stringent punishment for those indulging in such activities."
150. Thus, it is clear that Section 364A IPC does not merely cover acts of terrorism against the Government or Foreign State but it also covers cases where the demand of ransom is made not as a part of a terrorist act but for monetary gains for a private individual.
151. To attract section 364-A of the Penal Code, 1860, a person has to be kept in detention and there should be
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threat to cause death or hurt to such person, or by the conduct of the kidnapper there should be reasonable apprehension that kidnapped person may be put to death or hurt in order to compel the Government or any person to do or abstain from any doing any act or to pay ransom.
152. 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‖.
153. 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.
154. The third condition begins with the word ―or‖ i.e. or causes hurt or death to such person in order to compel the Government or any foreign State or international inter- governmental organisation or any other person to do or abstain from doing any act or to pay a ransom.
155. 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‖. The word
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―and‖ is used as conjunction. The use of word ―or‖ is clearly distinctive and both the words have been used for different purpose and object.
156. After noticing the statutory provision of Section 364-A we conclude that the essential ingredients to convict an accused under Section 364-A which are required to be proved by the prosecution 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.
157. 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.
158. Before adverting in to the facts of the instant case and appraising the judgments impugned, we deem it appropriate to refer some judicial pronouncement also as rendered by the Hon'ble Apex Court on the issue of applicability of section 364 A of IPC.
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159. The Hon'ble Apex Court in the case of Lohit Kaushal v. State of Haryana (2009) 17 SCC 106, has observed as under :
―15. ... It is true that kidnapping as understood under Section 364-AIPC is a truly reprehensible crime and when a helpless child is kidnapped for ransom and that too by close relatives, the incident becomes all the more unacceptable. The very gravity of the crime and the abhorrence which it creates in the mind of the court are, however, factors which also tend to militate against the fair trial of an accused in such cases. A court must, therefore, guard against the possibility of being influenced in its judgments by sentiment rather than by objectivity and judicial considerations while evaluating the evidence.‖
160. In Anil v. Admn. of Daman & Diu, Daman reported in (2006) 13 SCC 36, the pertinent observations were made by the Hon'ble Apex Court as regards the ingredients for commission of offence under Sections 364 and 364-A. The relevant passages which can be culled out from the said judgment of the Hon'ble Supreme Court are as under :
―55. The ingredients for commission of offence under Sections 364 and 364-A are different. Whereas the intention to kidnap in order that he may be murdered or may be so disposed of as to be put in danger as murder satisfies the requirements of Section 364 of the Penal Code, for obtaining a conviction for commission of an offence under Section 364-A thereof it is necessary to prove that not only such kidnapping or abetment has taken place but thereafter the accused threatened 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
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or any other person to do or abstain from doing any act or to pay a ransom.‖
161. In Vishwanath Gupta v. State of Uttaranchal reported in (2007) 11 SCC 633, it was observed by the Hon'ble Apex Court as under:
―8. According to Section 364-A, whoever kidnaps or abducts any person and keeps him in detention and threatens to cause death or hurt to such person and by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, and claims a ransom and if death is caused then in that case the accused can be punished with death or imprisonment for life and also liable to pay fine.
9. The important ingredient of Section 364-A is the abduction or kidnapping, as the case may be. Thereafter, a threat to the kidnapped/abducted that if the demand for ransom is not met then the victim is likely to be put to death and in the event, death is caused, the offence of Section 364-A is complete.
There are three stages in this section, one is the kidnapping or abduction, second is threat of death coupled with the demand of money and lastly when the demand is not met, then causing death. If the three ingredients are available, that will constitute the offence under Section 364-A of the Penal Code. Any of the three ingredients can take place at one place or at different places."
162. In the judgment rendered in the case of Vikram Singh v. Union of India (supra), it has been held by Hon'ble Apex Court as under:
"25. ... Section 364-AIPC has three distinct components viz.
(i) the person concerned kidnaps or abducts or keeps the victim in detention after kidnapping or abduction; (ii) threatens to cause death or hurt or causes apprehension of death or hurt or actually hurts or causes death; and
(iii) the kidnapping, abduction or detention and the threats of death or hurt, apprehension for such death or hurt or actual death or hurt is caused to coerce the person
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concerned or someone else to do something or to forbear from doing something or to pay ransom. These ingredients are, in our opinion, distinctly different from the offence of extortion under Section 383 IPC. The deficiency in the existing legal framework was noticed by the Law Commission and a separate provision in the form of Section 364-AIPC proposed for incorporation to cover the ransom situations embodying the ingredients mentioned above."
163. Thus, the necessary ingredients which the prosecution must prove, beyond a reasonable doubt, before the Court are not only an act of kidnapping or abduction but thereafter the demand of ransom, coupled with the threat to life of a person who has been kidnapped or abducted, must be there. Further reference in this regard may be taken from the judgment rendered by the Hon'ble Apex Court in the case of Ravi Dhingra v. State of Haryana, (2023) 6 SCC 76.
164. In the backdrop of the aforesaid legal ratio and logical deduction, now we shall consider the applicability of the above ratio to the fact of the instant case and deal with the appellants' argument as mentioned above.
165. We note that the learned trial court has placed reliance on the testimony of prosecution witnesses particularly PW.9 victim boy, PW.11 father of the victim and PW.12 Investigating Officer to prove the element of ―threat to cause death or hurt‖, or to determine whether the appellants' conduct gives rise to a reasonable
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apprehension that such person may be put to death or hurt.
166. From perusal of the testimony of the witnesses it is evident that all the witnesses have deposed that the victim boy Rahul @ Shubham Choudhary was kidnapped by the accused persons for ransom on 21.05.2010 while he was returning after attending the tuition class. He was taken by the miscreants to Dhanbad and thereafter to Maithan and was kept at Asansole from where he was recovered on 24.05.2010.
167. When the informant (father of the victim boy) came to know about the kidnapping of his son, he called his two friends Anil Kumar Gupta and Anwar Ahamad who were continuously present with him till the recovery of his son, have also been examined by the prosecution. Elder brother of the victim who was attending the phone calls of the accused persons on the mobile is also examined by the prosecution.
168. After the lodging of the FIR the charge of the investigation of the case was handed over to the S.I Baleshwar Sahu by the officer-in-charge of Bokaro Steel City police station who on the basis of the tower location of the mobile by which the accused persons were demanding ransom went towards Maithan, Distt. Dhanbad and started searching the boy.
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169. For the recovery of kidnapped boy two teams were constituted by the Superintendent of Police, Bokaro one team guided the informant Rajesh Prasad, the father of the kidnapped boy, to follow the direction of the accused persons and to go on the place as directed by the accused persons with the ransom money. The police team followed the informant and placed a constable with him on his motorcycle as his relative because the accused persons had directed him to come on motorcycle alone.
170. In the meantime, a second team was constituted by the Superintendent of Police headed by the officer-in-charge of B.S. City police station Dinesh Kumar Gupta in which Ashok Kumar Singh inspector cum officer-in-charge of Chas police station, and other police personnel were added as members. Both the police teams made their efforts and arrested the accused persons.
171. It is evident that the members of the police teams including the then officer-in- charge of B.S. City police station who was heading the second team, inspector Ashok Kumar Singh officer-in-charge of Chas police station inspector's member of the team and other police personnel who were also team members are examined by the prosecution including the I.O. Constable Balendra Kumar who remained present continuously with the informant attending the phone calls of accused showing him as the relative of informant is also
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examined by the prosecution and all of them they have fully substantiated the case of the prosecution.
172. It is evident that the teacher, where the kidnapped boy has gone to take tuition, is examined by the prosecution as P.W. 1. and she had supported the prosecution story and remain consistent during her testimony and substantiated the fact that mother of Rahul i.e. victim boy has told to her that perhaps Santosh has kidnapped her son.
173. The father of the kidnapped boy namely Rajesh Prasad and kidnapped boy Rahul @ Shubham and the mother of the kidnapped boy Jyoti Devi are also examined by the prosecution and all they have supported the case of the prosecution.
174. On behalf of accused persons, it has been argued that they have been implicated in this case due to inimical relation with the informant prior to the case. It has also been argued on behalf of the appellant that there are major contradictions in the statements of the witnesses of the prosecution which creates reasonable doubt into the involvement in the accused persons in committing the offence.
175. In response to the contention of the appellants it is pertinent to emphasize that it is settled legal proposition that not every discrepancy or contradiction matters for assessing the reliability and credibility of a witness, unless the discrepancies and contradictions are so material that it
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destroys the substratum of the prosecution case. It is natural for a witness to make minor improvements in the testimony in relation to the occurrence, therefore such improvements cannot be said to be of material importance for disbelieving the testimony of the witnesses.
176. It is settled proposition of law that merely because there is some contradiction and discrepancies in the testimonies, the same cannot be alone to vitiate the prosecution story, as has been held by the Hon'ble Apex Court in the case of Mukesh Kumar v. State (NCT of Delhi), reported in (2015) 17 SCC 694, wherein, at paragraph-8, it has been held as under: --
"8. While the slight difference in the initial version of the prosecution and the FIR version has been reasonably explained by the cross-examination of PW 6, it is our considered view that minor discrepancies, embellishments and contradictions in the evidence of the eyewitnesses do not destroy the essential fabric of the prosecution case, the core of which remains unaffected. Even if we have to assume that there are certain unnatural features in the evidence of the eyewitnesses the same can be reasonably explained on an accepted proposition of law that different persons would react to the same situation in different manner and there can be no uniform or accepted code of conduct to judge the correctness of the conduct of the prosecution witnesses i.e. PWs 1 and 2. The relation between PWs 5 and 6 and PWs 1 and 2 and the deceased, in our considered view, by itself, would not discredit the testimony of the said witnesses. There is nothing in the evidence of PWs 1 and 2 which makes their version unworthy of acceptance and their testimony remains
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unshaken in the elaborate cross-examination undertaken."
177. Likewise, the Hon'ble Apex Court in the case of Shyamal Ghosh v. State of West Bengal, reported in (2012) 7 SCC 646, wherein, at paragraphs-46 & 49, it has been held as under: --
"46. Then, it was argued that there are certain discrepancies and contradictions in the statement of the prosecution witnesses inasmuch as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused. It is true that there is some variation in the timing given by PW 8, PW 17 and PW 19. Similarly, there is some variation in the statement of PW 7, PW 9 and PW 11. Certain variations are also pointed out in the statements of PW 2, PW 4 and PW 6 as to the motive of the accused for commission of the crime. Undoubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution.
49. It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused."
178. Now in the light of aforesaid legal ratio we are revisiting the testimonies of the witnesses. From the testimony of P.W.
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9 Shubham Choudhary @ Rahul Kumar, the victim boy, it is evident that he has all along supported the prosecution version and has categorically deposed that when after returning from tuition he reached near a Gumti, the accused Santosh Kumar Singh and Nitish Vatsh were standing along a black-coloured Alto car and they forcibly dragged him in the car. He further deposed that Santosh Kumar Singh told someone on telephone that he has lifted the victim boy. He has specifically deposed in his examination-in-chief that they took him to Dhanbad where two persons Santosh Paswan and Sakun Dixit also rode on the car. From Dhanbad they took him to Maithan where they took him out of car. From there he was kept at Asansole from where he was recovered by the police on 24.05.2010 and on his identification of the place the police arrested the accused Nitish Vats and Santosh Kumar Singh and further accused Tammana was arrested from another room and also recovered the ransom amount that was given by the informant (father of the abducted boy).
179. The informant has narrated the same prosecution story as has been stated by the victim, namely, Shubham Choudhary @ Rahul and has also corroborated the fact that Santosh Kumar Singh, Nitish Vatsh, Tamanna @ Tanu were arrested with the ransom money from the room where the kidnapped boy was kept after being kidnapped. As such from perusal of the testimonies of victim and informant it appears
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that there is no major contradictions in their statements on the point of kidnapping of the victim and arrest of the accused persons as well as seizure of the ransom money from the place of occurrence.
180. It is equally important to note here that the statement of the kidnapped boy Shubham Choudhary @ Rahul was recorded by the learned Magistrate, 1st Class Sri. Srish Dutta Tripathi who recorded the statement of the victim on 29.05.2010 and during the statement the victim has also supported the prosecution case and has stated that he was kidnapped by Nitish Vatsh and Santosh Kumar Singh and was taken to Dhanbad, Maithan and thereafter to Assansole and was kept in the residence of Tamanna and lastly was sent to Asansole railway station by tempo. The victims has also stated during his statement made before the Magistrate u/s. 164 Cr.P.C that the auto driver was apprehended by police and he showed the police the house where he was kept from where the accused persons were arrested.
181. Thus, it is evident that the testimony of victim boy and the informant is consistent with the statement of the victim as recorded under section 164 Cr.P.C. Further the statement of victim has also been substantiated by the testimonies of the police personnel who had been examined as witnesses particularly P.W.6 and 12.
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182. P.W. 2 Anwar Ahamad and P.W. 3 Anil Kumar Gupta are the friends of the informant to whom he has informed about the missing of his boy on telephone and they went to his residence. P.W. 2 Anwar Ahamad has stated that he along-with the Anil Kumar Gupta went to the quarter of Rajesh Prasad and helped him in searching his boy here and there and in their presence the phone call was received through which he was informed by the kidnappers that Rahul was kidnapped by them. This witness has also substantiated the fact that the voice of Santosh Kumar Singh by which ransom was demanded, was identified by the elder son of the informant.
183. P.W.2 has also stated that he was all along with the police team during the search of the boy and went to Dhanbad, Govindpur More, Maithan, Nirsa and Asansole and money was paid by Rajesh Kumar to the kidnappers alone. Leaving them at railway station he has gone with money bag to the kidnappers. The witness has also corroborated the fact that the accused persons informed on telephone that they will send the boy at Asansole railway station. The witness was also present at Asansole railway station when the boy came on an auto rickshaw and was recovered by the police and auto driver was arrested. This witness has also corroborated the fact that the police has gone with the kidnapped boy and the auto driver and the informant Rajesh Prasad to
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Niyamatpur More and arrested two boys and a lady. The witness has also corroborated the fact that the police has also recovered an Alto car and a revolver from the dickey of car from Sector-II/A on 24.05.10 in his presence and has prepared seizure list.
184. Similarly, Anil Kumar Gupta P.W.3 has also supported the fact that he was informed about the kidnapping of the son of Rajesh Prasad and he had also gone with the police at Asansole where the boy was recovered. This witness is also the witness of the seizure of car and pistol from the garage situated at Sector-II which was used in the commission of crime, on the basis of confessional statement of the accused.
185. P.W. 6 Balendra Kumar is a constable who was directed to remain present with the informant by the officers of the police team constituted to recover the boy and he remained all along with the informant till the recovery of his son and he also talked with the kidnappers representing him as relative of the informant.
186. P.W.6 is the witness of the occurrence who has stated that during the conversation with the kidnappers, father of the Rahul was nervous enough and then he started talking with them. They called them to Dhanbad and then Govindpur and after that Khalsa Hotel and lastly at Asaonsole railway station. They directed them to board on a train and directed to throw the bag of ransom money on Sitarampur railway
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station but they did not throw it and then they directed to deboard from train at Kulti railway station. From there they called father of the boy alone towards cabin of the station. On returning he said that they have said to leave the boy at Barakar and they went to Barakar but did not find the boy there. Further they contacted the kidnappers who became ready to send the victim boy at Asansole Railway station. They reached Asansole railway station prior to the reaching of the boy. The boy came on an auto rickshaw on railway station and after receiving the boy and on the identification of the auto driver and the victim boy, the police team raided the place with the help of local police from where the kidnappers were arrested.
187. P.W. 7 Sukhwant Singh and P.W. 8 Manoj Kumar Sharma are the other constables and the members of the police team who have also supported the case of the prosecution and testified on the similar line as P.W.6.
188. P.W. 7 Sukhwant Singh was with the team of Baleshwar Sahu who has stated that on the information received by the technical cell he was deputed at Denduwa, Khalsa hotel Govindpur, at Asansole railway station and Kulti and at about 4 am of 24.05.10 Rahul was recovered. This witness has also stated that with the help of police of Niyamatpur, house of Ramakolen was raided from where accused/
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appellant Santosh Kumar Singh, Tamanna @ Tanu and Nitish Vatsh were arrested.
189. Similarly, P.W. 8 Manoj Sharma has also stated that he was also member of police team and during search reached on Asansole station where at 4.20 am Rahul was recovered and on his identification, house of Ramakolen at Lachchipur Dhal was raided from where Santosh Kumar Singh, Tamanna @ Tanu, Santosh Paswan and one other person was arrested.
190. Though there are contradictions in the statements of P.W. 8 regarding the arrest of the accused persons but the witness has supported the fact that the police team raided the house of Ramakolen at Lachchipur Dhal from where the accused persons were arrested.
191. Thus, it is evident that story of prosecution has fully been substantiated by the testimony of P.W.6, 7 and 8.
192. P.W. 4 Jyoti Devi the mother of the victim boy has also supported the prosecution case and has stated that when her son did not return in time from the tuition she along-with his husband searched him and her husband called her friends who helped in searching the boy and remained present with him.
193. The mother of the victim has also corroborated the fact that the ransom was demanded by the accused persons on mobile stating that Rahul was in their custody and the kidnappers said to manage Rs. 8 lakh till 5 pm on the next
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day. After that her husband went to police station and lodged FIR.
194. She has further stated that when her son returned to the residence after rescued from the kidnappers, he told to her that he was lifted by Santosh Bhaiya and Nitish Vatsh on a black colour car and was taken to Dhanbad. This witness has also stated that her son also told that at Dhanbad Sakun Dixit and Santosh Paswan also rode in the car. The mother of the victim boy has stated that before the recovery of his son in the night of 22.05.10 in between 2.30 to 3 am the accused persons have called her on mobile and had abused her on which she has told them that her husband has gone with the money.
195. As such this witness has fully supported the prosecution story and she further specifically substantiated that story of victim who had stated that he had been kidnapped by accused Santosh Bhaiya and Nitish Vatsh.
196. Similarly, P.W. 5Abhishek Choudhary @ Rahul the brother of the victim has also supported the prosecution case and has stated that after his brother did not return the residence from tuition in time, his parents and friends of his father started searching him when an unknown lady said that Rahul was taken by two boys in a black colour Maruti car. The witness has also stated that at about 2.30 pm the kidnappers called on his mobile and told that Rahul was in
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their custody. This mobile call was made from mobile no. 9771169356 and he recognized the voice of the caller who was Santosh Kumar Singh known to him from his childhood. At about 3.11 pm in the evening ransom was demanded, through SMS and threatening was given to kill Rahul in case they go to the police.
197. This witness has stated that he has also gone with the police team to Asansole and in the morning of 24.05.10 Rahul reached at Asansole railway station by tempo and the tempo driver and Rahul were taken to the police station and he along-with his father and friends of his father also went there. They were standing on the road and police came back with Santosh Kumar Singh, Nitish Vatsh and lady along-with the ransom money.
198. Thus, it is evident from the statements of the teacher providing tuition to the kidnapped boy, friends of the informant, constables of the police who were the members of the raiding team and the mother and brother of the victim boy that the victim has gone to attend the tuition class and was lifted by the accused persons for ransom and was later on recovered at Asansole railway station and on his identification three accused persons namely Santosh Kumar Singh Nitish Vatsh were arrested with the bag of ransom money. Though there are some minor contradictions in the statements of the witnesses but these are simple human
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errors and are not vital to disbelieve the prosecution story by any corner.
199. Further Dinesh Kumar Gupta who is the inspector of police and was posted as officer-in-charge of B.S. City police station at the time of the occurrence has been examined as P.W. 10 by the prosecution. He was the team leader of second team of the police constituted by the Superintendent of Police and the police team acted in the direction of this witness and recovered the kidnapped boy and also arrested the accused persons along-with the ransom money.
200. This witness has stated that the charge of investigation was given by him to Baleshwar Sahu sub-inspector and with the team of police he went towards Maithan area to recover the boy as per the tower location of the mobile by which the ransom was demanded. He placed one constable Balendra Kumar of technical cell with the informant. He has deposed that lastly, police personnel went to Niyamatpur police station and with the help of Niyamatpur police and arrested Santosh Kumar Singh, Nitish Vatsh and alleged wife of Santosh Kumar Singh, Tamanna @ Tanu who was living on rent in the house of one Smt. Ramakolen. The police team also recovered Rs. 1,75,000/- kept in bag which was paid as ransom. The accused persons confessed their involvement in the offence and on the basis of their statement black coloured Alto car and pistol kept in the garage of Nitish Vatsh at
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Sector-II, Bokaro Steel City was also recovered. The accused persons in their confessional statement has taken the names of Santosh Paswan and Sakun Dixit and stated about their involvement in committing the alleged offence.
201. I.O Baleshwar Sahu sub-inspector of police who has examined as P.W. 12 has given the details description of the occurrence and investigation made by him and has also prepared the map of the place from where the boy was kidnapped. The I.O has also recorded the confessional statement of the accused persons and on the basis of the confessional statement of Santosh Kumar, Sakun Dixit and Nitish Vatsh, he recovered the black colour Alto Car registration no. JH09C-8676 and a country-made pistol kept in its dickey from the garage of Nitish Kumar at Bokaro.
202. Thus, it is evident that on the basis of confessional statement of the accused persons namely Santosh Kumar, Sakun Dixit and Nitish Vatsh the vehicle and country-made pistol which was used in the commission of alleged crime was recovered and as such by virtue of section 27 of the Indian Evidence Act the said part of confessional statement leading to recovery is admissible as vital piece of evidence.
203. In the aforesaid context it is pertinent to mention here that it is now well settled principle of law that the recovery pursuant to the disclosure statement made by the accused under section 27 of the Evidence Act is admissible in
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evidence. It is also settled that the Court must disregard the inadmissible part of the statement and take note only that part of his evidence, which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further settled proposition of law that discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to his existence.
204. Reference with respect to the aforesaid settled proposition may be made to the judgments of the Hon'ble Apex Court in the case of Earabhadrappa v. State of Karnataka, AIR 1983 SC 446 wherein at paragraph 7 and 8 it has been observed as under:
"7. There is no controversy that the statement made by the appellant Ex. P-35 is admissible under Section 27 of the Evidence Act. Under Section 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word "fact" means some concrete or material fact to which the information directly relates. As explained by Sir John Beaumont in Pulukuri Kotayya v. King-Emperor [(1947) 74 IA 65 : AIR 1947 PC 67 : 230 IC 135] :
"... it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact."
8. For the applicability of Section 27 therefore two conditions are prerequisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must "relate distinctly" to the fact discovered. In the present case, there was a suggestion during the trial that PW 26 had prior
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knowledge from other sources that the incriminating articles were concealed at certain places and that the statement Ex. P- 35 was prepared after the recoveries had been made and therefore there was no "fact discovered" within the meaning of Section 27 of the Evidence Act. We need not dilate on the question because there was no suggestion made to PW 26 during his cross-examination that he had known the places where the incriminating articles were kept. That being so, the statement made by the appellant Ex. P-35 is clearly admissible in evidence."
205. Similarly in the case of Nisar Khan v. State of Uttaranchal, 2006 (9) SCC 386 the Hon'ble Apex Court has observed as under:
"6. Regarding the second contention that the recovery of arms has not been proved by the prosecution has also no substance. It is evidence on record that the accused were arrested on 17- 12-1999 and pursuant to a disclosure statement made by them, the arms were recovered from the bank of Gaula river where these had been hidden under the sand and covered by the stones. All the arms were recovered as pointed out by each accused hidden under the stones. The High Court fell in error in holding that the recovery has not been proved as these were recovered from a place which is frequented by the public. This finding of the High Court is contrary to the evidence on record. It is now well-settled principle of law that the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. In Dhananjoy Chatterjee v. State of W.B. [(1994) 2 SCC 220 :
1994 SCC (Cri) 358] it is held that the entire statement made by an accused person before the police is inadmissible in evidence being hit by Sections 25 and 26 but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act. It is also held that the Court must disregard the inadmissible part of the statement and take note only of that part of his statement which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further held
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that the discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to its existence.
7. In Golakonda Venkateswara Rao v. State of A.P. [(2003) 9 SCC 277 : 2003 SCC (Cri) 1904] this Court reiterated the view and held that the discovery statement of an accused leading to recovery of crime articles from concealed place, even though the discovery statement and the recovery memo did not bear the accused's signature, the fact of recovery from the well and dug out was from a place which was pointed out by the appellant and, therefore, such discovery was voluntary. That the recovery was in consequence to the information given was fortified and confirmed by the discovery of the apparel worn and skeletal remains of the deceased and, therefore, the information and statement cannot be held to be false. In the present case on the recovery memo the signatures of all the accused have been obtained. In Praveen Kumar v. State of Karnataka [(2003) 12 SCC 199 : 2004 SCC (Cri) Supp 357] the same view has been reiterated."
206. As such the aforesaid aspects of recovery which was made on the basis of the confessional statement of the accused persons is indicative of the involvement of the said accused persons in the alleged crime.
207. Further the I.O in his examination-in-chief has stated that ransom was demanded by the kidnappers on the mobile phone no. 8873577537 of the informant and the kidnappers were using mobile no. 9771169356. He received the information from the technical cell that mobile no. 9771169356 is registered in the name of Santosh Kumar Singh and other mobile no. 9798736767 in the name of Santosh Kumar and mobile no. 9308344144 is registered in
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the name of Ekram Ansari of Katras, Dhanbad. The technical cell informed that Balendra Kumar Singh constable which was deputed with the informant was using mobile no. 9773379521.
208. As per the informant and other witnesses ransom was demanded through the mobile no. 9771169356 and from the record it is evident that the said number was registered on the name of accused/ appellant Santosh Kumar Singh.
209. Further it is evident from the record that the ransom was demanded by making call on mobile no. 8873577537 of the informant and on the mobile no. 9973379521 of the police constable Balendra Kumar who was placed with the informant to trace the accused persons. The informant has given detail description of the mobile numbers by which ransom was demanded and all the said mobile numbers were registered in the name of the accused persons or their family members which reveals that the accused was using mainly mobile no. 9771169356 and sometimes mobile no. 9470585560 and 8098359985.
210. After perusal of the call detail report (CDR) it is clear that on 21.05.2010 and 22.05.10, more than 50 times accused Santosh Kumar Singh had sent SMS to the informant on his mobile no. 8873577357. The informant has also stated in his examination in chief that he was using mobile no. 8873577357.
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211. The CDR also reveals that at about 15 messages were sent by the accused by his mobile no. 9771169356 on the mobile no. of police constable Balendra Kumar who was placed with the informant. The battery of the mobile of informant was discharged and he communicated this mobile number to the accused. Similarly in the night of 24th May also several calls were made and SMS were sent by the accused on this mobile number and lastly calls were also made by constable Balendra Kumar by his mobile no. 9973379521 on the mobile of the accused Santosh Kumar Singh at about 3.23 am, 3.46 am and 4.13 am and again the call was received by the police constable on his mobile no. 9973379521 called by the mobile no. 9771169356 of accused Santosh Kumar Singh.
212. Thus it is evident from aforementioned preceding paragraphs particularly 209 to 213 that the ransom was demanded from the mobile of accused persons and as such the testimony of witnesses related to demand of ransom by the accused persons is fully established and this fact is further fortified by the call detail record(CDR).
213. Further it is important to note here that Manish Kumar, the then B.D.O of Chas block who conducted the T.I. Parade of the recovered money on 12.06.10 has been examined as P.W. 13 who has stated that in his presence the informant
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identified all the notes and these all notes were bearing the initial signature of informant.
214. Md. Asif Ekbal, J.M. 1St Class, Bokaro is examined as P.W. 15 who had also conducted the identification parade of the accused persons Santosh Kumar Singh, Nitish Vatsh, Om Nath Dixit @ Sakun Dixit and Tamanna @ Tanu in Sub-Jail, Chas in which the witness's victim boy Rahul Kumar @ Shubham Choudhary and his father Rajesh Prasad had participated as witness. Both the witnesses had identified all the accused persons.
215. Thus, after taking the evidence in entirety it is evident from the evidence of the I.O as well as the officer-in-charge of the Bokaro Steel City police station who was heading the team searching the kidnapped boy the entire prosecution version has fully been substantiated without any contradictions. The statements of the police officers are corroborated by the statements of the witnesses and there is no ground to create any doubt regarding the authenticity of the evidence of the I.O and officer-in-charge of the police station heading the team of police which recovered the victim boy and arrested the three accused persons namely Santosh Kumar Singh, Nitish Vatsh and Tamanna and also recovered ransom money.
216. The statement of these police officers is fully corroborated by the statements of the informant, other
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witnesses Anil Kumar Gupta and Anwar Ahamad and also by the elder son of the informant and other police constables who were the members of the police team deputed to recover the kidnapped boy and arrest the accused persons.
217. Thus, it is also proved from the identification charts and the identification report of the money and the statements of the B.D.O as well as the Judicial officers that the money recovered from the possession of the accused persons was identified by the informant and all the accused persons who were apprehended from the place of occurrence were also identified by the victim boy as well as by the informant of the case.
218. Further, the victim boy Shubham Choudhary @ Rahul in his statement recorded u/s. 164 Cr.P.C which was recorded by the Magistrate soon after his recovery from the custody of the accused persons, he has also revealed entire story of his kidnapping and has told the name of the accused persons. Thus, the identification of the accused persons by the victim and the informant as well as the identification of the paid ransom money in presence of B.D.O and identification of accused persons who were apprehended in presence of the Judicial officer also prove the prosecution case beyond any reasonable doubt.
219. In the aforesaid factual aspect, this Court deems it fit and proper to again go across the penal provision as under
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Section 364A of the Indian Penal Code, which consists of three parts i.e., (i).Kidnapping or abduction; (ii).threatening for the purpose of ransom and (iii).in case of non-payment on the part of ransom the consequence will be death of the kidnapped or abducted person. That means that two are mandatory conditions and if death is not there and only threatening then also section will be attracted.
220. As we discussed in preceding paragraphs that to attract section 364-A of the Penal Code, 1860, a person has to be kept in detention and there should be threat to cause death or hurt to such person, or by the conduct of the kidnapper there should be reasonable apprehension that kidnapped person may be put to death or hurt in order to compel the Government or any person to do or abstain from any doing any act or to pay ransom.
221. From perusal of the testimony of the witnesses it is evident that all the witnesses univocally have deposed that the victim boy Rahul @ Shubham Choudhary was kidnapped on 21.05.2010 while he was returning after attending the tuition class and it is further evident that there are no major contradictions in their statements on the point of kidnapping of the victim and arrest of the accused persons as well as seizure of the ransom money from the place of occurrence. The witnesses specifically PW.2 and 3 has also corroborated the fact that the police have also recovered an Alto car and a
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revolver from the dickey of the said car which was used in commission of the said crime, from Sector-II/A on 24.05.10 in their presence and has prepared seizure list.
222. P.W. 9 Shubham Choudhary @ Rahul Kumar, the victim boy, has all along supported the prosecution version and has categorically deposed that when after returning from tuition and reached near a Gumti, the accused Santosh Kumar Singh and Nitish Vatsh were standing along a black-coloured Alto car and they forcibly dragged him in the car, thus the offence of kidnapping was fully substantiated.
223. Further on his identification from the place of occurrence, the accused Nitish Vats, Santosh Kumar Singh and Tammana were arrested by the police team and the ransom amount was also recovered which was given by the informant (father of the abducted boy) to the kidnappers, as such it is evident from the aforesaid fact that offence of kidnapping was made by the said accused Nitish Vats, Santosh Kumar Singh and Tammana and the victim boy has been kept in detention by the aforesaid accused persons, therefore the first and foremost requirement to constitute the offence under section 364A has been established.
224. The second requirement to constitute the offence under section 364A IPC is the conduct of the kidnapper by which reasonable apprehension should be caused that kidnapped
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person may be put to death or hurt as such to compel any person to pay ransom.
225. In the aforesaid context it is evident from the testimony of the informant who has been examined as P.W.11 that the kidnapper had made call on the mobile which was with his elder son and said that they will lose Rahul i.e. victim, if the matter is informed to the police. He has further deposed that again call was received on the mobile of his elder son when they were at police station and the caller said to arrange Rs. 8 lakh and again threatened that in case of not arranging the money they will lose Rahul.
226. Further as per CDR and testimonies of other witnesses particularly the investigating officer it appears that ransom call was made by kidnapper through the mobile number which is registered in the name of Santosh Kumar Singh and it has also come on record that the ransom money which was given by the informant was recovered from the possession of accused persons when they were arrested by the police team, as such the second requirement to constitute the offence under section 364A IPC is also fulfilled because herein the specific demand of ransom was made by the kidnappers/ accused persons to cause apprehension of death of the victim boy in the mind of the informant i.e. father of the victim boy.
227. Further, it is pertinent to mention here that the prosecution has alleged the offence under section 364A IPC
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coupled with the section 34 IPC. As such in this scenario this court thinks fit before delving into the evidence on record on point of common intention and addressing the rival contentions in this regard as made by the parties, we wish to reiterate the precise nature, purpose and scope of Section 34 Indian Penal Code, in order to find out that whether there was any common intention among the accused persons to facilitate the alleged crime.
228. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked.
229. In every case, it is not possible to have direct evidence of a common intention. The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. Reference in this regard may be taken from judgment as rendered by the Hon'ble Apex Court in the case of Bengai Mandal v. State of Bihar, reported in (2010) 2 SCC 91 wherein at paragraph 13 it has been held as under:-
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"13. Thus, the position with regard to Section 34 IPC is crystal clear. The existence of common intention is a question of fact. Since intention is a state of mind, it is therefore very difficult, if not impossible, to get or procure direct proof of common intention. Therefore, courts, in most cases, have to infer the intention from the act(s) or conduct of the accused or other relevant circumstances of the case. However, an inference as to the common intention shall not be readily drawn; the criminal liability can arise only when such inference can be drawn with a certain degree of assurance."
230. Further the Hon'ble Apex Court in the case of Girija Shankar v. State of U.P. (2004) 3 SCC 793], while bringing out the purpose and nature of Section 34 IPC observed in para 9, as follows:-
"9. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab [(1977) 1 SCC 746] the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary
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that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision."
231. Thus it is evident that the inference regarding applicability of Section 34 of the IPC to be drawn from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The criminal act actually committed would certainly be one of the important factors to be taken into consideration but should not be taken to be the sole factor.
232. It is further settled proposition of law that to rope in an accused with the aid of section 34 IPC, it must be established by cogent evidence that he shared common intention and at the time when the final act was accomplished, he was there, may be not at the actual spot.
233. In Surendra Chauhan v. State of M.P. reported in (2000) 4 SCC 110 the Hon'ble Supreme Court has held that under section 34 IPC a person must be physically present at the actual commission of the crime for the purpose of
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facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture.
234. Further, the law on the applicability of section 34 IPC was delineated in Shreekantiah Ramayya Munipalli v. State of Bombay 1954 SCC OnLine SC 42 wherein the Hon'ble Supreme Court has observed as under:
"23..... The essence of the misdirection consists in his direction to the jury that even though a person "may not be present when the offence is actually committed" and even if he remains "behind the screen" he can be convicted under section 34 provided it is proved that the offence was committed in furtherance of the common intention. This is wrong, for it is the essence of the section that the person must be physically present at the actual commission of the crime. He need not be present in the actual room; he can, for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape, but he must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in some way or other at the time the crime is actually being committed...."
235. To apply the aforesaid legal ratio in the fact of the present case this Court thinks fit to again advert in to the evidences of the prosecution witnesses as available on the record.
236. It is evident from the testimony of the informant, the victim boy and other witnesses that the accused persons namely Santosh Kumar Singh, Nitish Vatsh and Tamanna were arrested from the place of occurrence with the bag of ransom money, in their presence, as such the presence of aforesaid accused persons at the place of occurrence is fully established and as such there is no iota of doubt regarding
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the presence of said accused persons at the place of occurrence. Thus, the role of aforesaid accused persons in their individual capacity with the common intention to facilitate the alleged crime under section 364 A IPC has fully been substantiated by the testimonies of the witnesses.
237. Further it is evident from the statement of P.W.9 which has fully been corroborated by the testimony of other witness that he was kidnapped by the Santosh Kumar Singh and Nitish Vatsh and both the aforesaid accused persons had taken him at the residence of Tamanna in purpose of their safe hide out and as such role of each accused persons may be different but the element of common intention in fulfilling the alleged crime is also there.
238. In view of the aforesaid discussion the contention of learned counsel for the appellant that it is not a case of Section 34 of the Indian Penal Code, is totally fallacious or misplaced.
239. Further, the learned counsel in the Cr. Appeal (DB) No. 928 of 2016 for the appellant Nitish Vatsh has contended that the circumstances in relation to which questions were not put by trial court, while examining the appellants under Section 313 of the CrPC ought not to have been taken into account by the trial court while appreciating the evidence and recording the finding and to buttress this limb of argument the learned counsel has relied on the judgment rendered by
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the hon'ble Apex Court in the case of Raj Kumar @ Suman vs. State (NCT of Delhi) (supra).
240. In the aforesaid context it is considered view of this Court that there is no quarrel against the settled proposition of law that questions which were not put by trial court, while examining the appellants under Section 313 of the CrPC ought not to have been taken into account by the trial court.
241. But in the contrast, this is also settled proposition of law that to invoke the aforesaid principle the appellant must prove that any prejudice was caused to him, because of such lapse as made the trial court.
242. In the instant case from perusal of the record it is evident that since the prosecution's witnesses were examined in presence of this appellant and he had enough opportunity to cross-examine the prosecution's witnesses which he had availed. Further even for sake of argument if it is presumed that certain questions were not put by the trial court to this appellant, the appellant has not been able to make out a case that any prejudice was caused to him, because of such failure, the submissions advanced on behalf of the appellant as regards improper compliance of Section 313 of the CrPC is fallacious and not tenable.
243. This Court, after going through the evidence, oral as well as documentary available on record, as also the penal
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provision of offence under Section 364A of the Indian Penal Code, finds that Shubham Choudhary @ Rahul was kidnapped by the accused Santosh Kumar Singh and Nitish Vatsh from Sector-II, Bokaro when he was returning from his tuition. He was taken towards Dhanbad by the black coloured Alto car no. JH09C-0876 which was being driven by Nitish Vatsh. They demanded ransom on the mobile number of informant and later on the mobile number of one police personnel who was accompanying the informant as the mobile of informant became discharged. The CDR clearly shows that mobile registered in the name of Santosh Kumar Singh was used for demanding ransom by making call and sending SMS. Further oral evidence has been adduced that in case of non-fulfilment of ransom the accused persons have threatened to kill the kidnapped boy. The appellant, were arrested from the house were the victim was kept who after payment of ransom was released.
244. Therefore, on the basis of the oral as well as documentary evidence available on record we are of the considered view that the prosecution has successfully proved the charge u/s 364A read with Section 34 IPC beyond all reasonable doubts so far appellants, Santosh Singh @ Santosh Kumar Singh and Nitish Vatsh @ Nitin Vatsh are concerned.
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245. So far, the involvement of accused Santosh Kumar Paswan is concerned, it has been argued on behalf of the accused person Santosh Paswan that neither he is named in the FIR nor anything was recovered from his possession, he was also not arrested with other accused persons from the place where the victim boy was kept and his mobile phone was also not used in committing the offence or demanding the ransom but he has falsely been implicated in this case.
246. It has also been argued on his behalf that none of the witnesses including the victim have named him during their evidence and even in the statement u/s 164 Cr.P.C of the victim recorded by the Magistrate the victim has not named him. It has been argued on behalf of the accused Santosh Kumar Paswan that he is innocent and has been falsely implicated in this case by the police as he is known to the police as an accused of Arms Act.
247. In the light of aforesaid contention, it is admitted fact that this accused has not been arrested from the place of occurrence rather he himself surrendered before the police. Further it is also admitted position that this accused is not named in the FIR and his complicity in the alleged crime is transpired on the basis of confessional statement of other accused persons namely Santosh Kumar Singh and Nitish Vatsh and it is the settled position of law that confessional statement of the one of the co-accused persons against the
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other accused person has no evidentiary value in the eye of law.
248. It is also admitted fact that none of the witnesses has named him as accused in the instant case except victim boy who during his evidence has stated in his examination in chief that in the car by which he was kidnapped two persons also rode in the car whose names were Santosh Paswan and Sakun Dixit but they went with them only to Maithan by car and from there after de-boarding him with Santosh Singh from the car they returned to Bokaro.
249. Further, the victim boy during his statement recorded by the Judicial Magistrate u/s 164 Cr.P.C has also not named the particular appellant/accused and it is admitted fact that the victim boy has taken the name of the appellant Santosh Paswan for the first time in his examination-in-chief.
250. It is pertinent to mention here that the I.O has also stated during cross-examination that neither victim boy i.e. Rahul @ Shubham Choudhary nor his father or mother has named Santosh Paswan as an accused in their statement given under section 161 Cr.P.C. before him. In this regard the statement has been given by the Investigation Officer in para 108 to 112 of his cross-examination.
251. After his recovery the victim boy told the whole story of his kidnapping to his mother who has been examined as witness and she has stated that his son told her that two
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persons Sakun Dixit and Santosh Paswan rode in the car at Dhanbad. But it is pertinent to note here that this witness has not told this fact to the I.O.
252. It is also admitted fact that the victim boy has identified the appellant Santosh Paswan on 11.06.2010. But during the cross-examination on behalf of Santosh Kumar Paswan the victim boy has stated in para 31 of his cross-examination that before the identification parade accused Santosh Paswan was shown to him by police in the police station at Bokaro and he has gone to the jail to identify same Santosh Paswan. Further in his cross-examination the victim has stated that he identified the accused Santosh Paswan on the basis of the identification of the police made in the police station.
253. The I.O has stated that Santosh Kumar Paswan was having mobile no. 9798736767 but this mobile phone is not used by this accused during the period from the kidnapping till to the recovery of the kidnapped boy which is clear from the call details report obtained by the police which is marked as Ext. 10. But after going through the call detail report of mobile No. 9798736767 of Santosh Paswan appears that the location of the phone was at Dhanbad, Maithan, Raniganj in W.B, Jharia and Mahuda on 21.05.2010 and he was either calling someone or was on call the whole day and the location of his mobile was traced to be also on G.T. Road.
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254. The only admissible evidence against this accused is location of his mobile as per CDR wherein the location of his mobile was traced on the G.T. Road, but except this evidence no any cogent evidence has put forward by the prosecution against the accused Santosh Paswan.
255. Further as we have noted earlier that the instant case is alleged under section 364A coupled with section 34 of IPC, as such it is required here to discuss that whether the prosecution has able to prove the charge of 364A of IPC against the accused person namely Santosh Paswan with the aid of section 34 of the IPC.
256. The essence of liability under Section 34 IPC is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result. Minds regarding the sharing of common intention gets satisfied when an overt act is established qua each of the accused. Common intention implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Common intention is an intention to commit the crime actually committed and each accused person can be convicted of that crime, only if he has participated in the commission of crime with a common intention.
257. It is evident that the inference regarding applicability of Section 34 of the IPC to be drawn from the circumstances appearing from the proved facts of the case and the proved
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circumstances and the criminal act actually committed would certainly be one of the important factors to be taken into consideration but should not be taken to be the sole factor.
258. It is further settled proposition of law that to rope in an accused with the aid of section 34 IPC, it must be established by cogent evidence that he shared common intention and at the time when the final act was accomplished, he was there, may be not at the actual spot.
259. In Jarnail Singh vs. State of Punjab; AIR 1982 SC 70, the hon'ble Apex Court held that since there was no pre- concert between the accused persons nor a meeting of minds between them before the offence took place, the conviction of the accused under Section 302/34 IPC was bad and since the accused merely gave a token blow on the ear and caused simple injuries, the conviction was altered to one under Section 324 Indian Penal Code.
260. In the backdrop of the aforesaid discussion and the judicial pronouncement and the evidence of prosecution witnesses and also taken into consideration the facts and circumstances of the instant case we are of the view that the prosecution had failed to put any cogent and reliable evidence against the accused Santosh Paswan except the CDR by which his mobile location was found on the GT Road.
261. The victim boy in his Statement under Section 164 Cr.P.C. has stated that two boy boarded in Dhanbad and de-
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boarded in Maithin but certainly did not name this accused. However, he named this accused during examination-in-chief for the first time.
262. So far identification is concerned, though the victim has identified appellant Santosh Paswan during TIP but the learned counsel for the appellant has made a ground that before TIP the victim boy was identified to Santosh Paswan in Police Station. From perusal of the testimony of victim boy, it is evident that the aforesaid contention has fully been substantiated by the paragraph 33 of the cross-examination of victim boy.
263. It is admitted fact that neither the mobile of the accused Santosh Paswan was used in the alleged commission of crime of demanding ransom nor any incriminating article has been recovered from his possession.
264. It is evident from the perusal of the testimonies of the witnesses that except the victim boy no other witness who were examined on behalf of the prosecution has not named Santosh Paswan as an accused and further the prosecution has not able to prove the direct involvement of the accused/ appellant Santosh Paswan in the instant case in any manner.
265. On entirety of facts and circumstances of the case as also the legal proposition , as discussed hereinabove:
I. The Cr. Appeal (DB) 928 of 2016 and Cr. Appeal (DB) 1051 of 2016, so far it relates to appellants, Nitish
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Vatsh @ Nitin Vatsh and Santosh Kumar Singh @ Santosh Singh are concerned, are hereby dismissed. Consequently, the judgment of conviction and order of sentence passed against them by the learned trial court needs no interference by this Court.
II. The Criminal Appeal (D.B.) No. 889 of 2016, preferred by appellant, Santosh Paswan, is hereby allowed and judgment of conviction and order of sentence passed against him by the learned trial court is hereby quashed and set aside. Consequently, the appellant, Santosh Paswan, is acquitted of the charges leveled against him. Accordingly, the appellant, namely, Santosh Paswan is directed to be released forthwith from the jail custody, if not wanted in any other case .
266. Pending Interlocutory Applications, if any, stand disposed of.
267. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.
I Agree (Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) (Pradeep Kumar Srivastava, J.) Jharkhand High Court, Ranchi Dated: Ranchi 12/02/2024 Alankar / A.F.R.