Jharkhand High Court
Anil Pal Son Of Ram Pyare Pal vs The State Of Jharkhand on 5 March, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
-1- Cr. Appeal (DB) No. 1278 of 2016 & Ors
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1278 of 2016
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(Against the judgment of conviction dated 05.07.2016 and order of
sentence dated 13.07.2016, passed by learned Sessions Judge,
Palamau at Daltonganj, in Sessions Trial No. 214 of 2015)
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Anil Pal son of Ram Pyare Pal, resident of Village-
Murumatu, P.O- Kajru, P.S.-Pandu, District-Palamau.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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With
Cr. Appeal (DB) No. 867 of 2016
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Pappu Paswan @ Pappu Kumar Paswan son of Gyani
Paswan aged about 25 years, R/o (Mauza)-Vill+ P.O.-
Ratnag, P.S.-Pandu, Dist-Palamau, Jharkhand.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
with
Cr. Appeal (DB) No. 883 of 2016
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Pintu Soni @ Pintu Kumar Soni ... Appellant
Versus
The State of Jharkhand ... ... Respondent
----
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Jai Shankar Tripathi, Advocate
[in Criminal Appeal (DB) No. 1278/2016]
Mr. A.K. Sahani & Ajit Kumar, Advocates
[in Criminal Appeal (DB) No. 867 of 2016]
Mr. Nilesh Kumar, Adocate
Mr. Amit Kumar, Advocate
[in Criminal Appeal (DB) No. 883 of 2016]
For the Respondent : Mr. Abhay Kumar Tiwari, APP
[in Criminal Appeal (DB) No. 1278/2016]
Mr. Vishwanath Roy, Spl. P.P
[in Criminal Appeal (DB) No. 867 of 2016]
Mrs. NehalaSharmin, Spl. P.P.
[in Criminal Appeal (DB) No. 883 of 2016]
For the Informant : Mr. NagmaniTiwari, Advoate
Mr. Ajit Kumar Dubey, Advocate
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-2- Cr. Appeal (DB) No. 1278 of 2016 & Ors
C.A.V. on 23/01/2024 Pronounced on 05/03/2024
Per Surjit Narayan Prasad, J.:
1. Since all the appeals arise out of the common judgment of conviction and order of sentence, as such with the consent of learned counsel for the parties, they are taken up together and are being disposed of by this common order.
Prayer:
2. These appeals have been filed under Section 374 (2) CrPC against the judgment of conviction dated 05.07.2016 and order of sentence dated 13.07.2016, passed by learned Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 214 of 2015, whereby and whereunder the learned trial court has convicted the appellants under Section 364A/34 IPC and has sentenced to under R.I. for life with a fine of Rs. 10,000/- each and in default of payment of fine to further undergo S.I. for six months each. Prosecution Case:
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, which as per the written report of the informant Janeshwar Mahto is that his son Kishore Kumar Mehta along with his brother-in-law (Sala) Ram Kumar Mehta @ Laddu Mehta and cousin Surjit
-3- Cr. Appeal (DB) No. 1278 of 2016 & Ors Kumar Mehta had gone to Chandan Nagar, Chhatisgarh and were returning on 13.02.2015 by Car I-20 bearing Registration No. JH-01BK-4913 in the evening in between 5.00-5.30 p.m. It is alleged that at about 7.30 p.m. he tried to contact his son on his mobile phone no. 9934616117 to know as to where he has reached. His mobile though rang but no one attended it. Thereafter, the informant continued to try to contact his son on mobile till 10.00 pm. but the mobile was not attended by anyone due to which the informant fell in worry and he also tried to contact on the mobile of the brother-in-law (sala) of his son and from there also he did not get any response. It is alleged that the entire family started searching them in Garhwa Road Daltonganj but could not trace them.
4. On the next day, i.e. on 14.02.2015 at about 8.00 a.m. the said I-20 car of the son of the informant was found abandoned at Thamawa Forest Valley. It is alleged that at the same time at 8.00 a.m. the son of the informant through mobile phone no. 9504699565 on the mobile phone of his wife informed that they have been abducted and have been kept in the forest. He had also asked not to lodge case in the police station. It is also alleged that the son of the informant told his friend on mobile that they have been detained after their abduction by the offenders and are asking Rs.15,00,000/- as ransom or else they are
-4- Cr. Appeal (DB) No. 1278 of 2016 & Ors threatening to kill them. The friend of his son told this matter to the informant, who hearing this became very much frightened and submitted written report to the police over which Chainpur P.S. Case No.18/15 under Section 364A, I.P.C. was registered against unknown miscreants.
5. The police during the course of investigation apprehended one of the accused namely Anil Pal and on whose confession and pointing to the police about the place of occurrence the police entered into the forest along with the said Anil Pal and rescued the victims from the clutch of the accused persons.
6. The Investigating Officer investigated the case and submitted charge sheet against the accused persons facing trial for the offence under Section 364A I.P.C. keeping the supplementary investigation pending against Bhola Singh, Pintu Singh, Lav Singh, Paras Singh and Bablu.
7. After submission of charge-sheet, the learned S.D.J.M. took cognizance of the offence under Section 364A/34 I.P.C. on 30.03.2015 and since the offence was exclusively triable by the Court of Session, police papers were supplied to the accused persons facing trail and the case was committed to the Court of Session.
8. After hearing the parties, charge under Section 364A/34 I.P.C was framed against the accused persons,
-5- Cr. Appeal (DB) No. 1278 of 2016 & Ors which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.
9. On behalf of the prosecution altogether ten witnesses including the informant, all the three victims, the daughter-in-law of the informant, the nephew of the informant, I.O. of the case and the Magistrate holding T.I. parade and two of the defense witnesses have been examined.
10. They are P.W.1 Braj Kumar Mahto, P.W.2 Janeshwar Mahto(the informant), P.W.3 Kishore Kumar Mehta @ Kishore Kumar (the son of informant & victim), P.W.4 Surjit Kumar (cousin of P.W.3 & victim), P.W.5 Ram Kumar Mehta @ Laddu Mehta (brother-in-law of P.W.3, & victim), P.W.6 Lilawati Devi (wife of the P.W.3), P.W.7 Shyam Bihari Mehta, P.W.8 Sanjay Kumar Malviya, the I.O. of the case, P.W.9 Deodas Bhandari, a Police Hawaldar, who is a formal witness and P.W.10 Binod Kumar, Judicial Magistrate, who conducted T.I. parade of accused Anil Pal and Pintu Kumar Soni in Central Jail, Daltonganj.
11. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons, 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
-6- Cr. Appeal (DB) No. 1278 of 2016 & Ors 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.
12. Judgment impugned has been assailed individually by all the three appellants, who have filed separate appeals and have taken separate grounds for declaring the judgment of conviction and order of sentence to be bad in the eyes of law.
Arugment on behalf of appellants in Cr. Appeal (DB) No.1278 of 2016 & Cr. Appeal (DB) No. 883 of 2016:
13. Mr. Jai Shankar Tripathi, learned counsel for the appellant in Cr. Appeal (DB) No.1278 of 2016 [Anil Pal] and Mr. Nilesh Kumar, learned counsel being assisted by Mr. Amit Kumar, learned counsel for the appellant in [Cr. Appeal (DB) No. 883 of 2016] have jointly argued as under:
I. The prosecution has miserably failed to establish the charge said to be proved beyond all reasonable doubt. Such ground has been taken for the reason that none of the witnesses as per appellants has corroborated the prosecution version of commission of offence under section 364A IPC.
II. Learned counsel for the appellants in both the appeals has submitted that the primary ingredient to attract the penal provision of Section 364A IPC is that there must be a demand of ransom as
-7- Cr. Appeal (DB) No. 1278 of 2016 & Ors would be evident from the very content of the aforesaid penal offence as provided under the Indian Penal Code. But by referring to the testimony of the witnesses submission has been made that there is no demand of ransom and hence even the prosecution version will be said to be proved then it cannot be said to be a case under Section 364A IPC rather it will come under the fold of Section 363 IPC.
III. In the case at hand no ransom has been demanded by the accused persons rather the victim, Kishore Kumar Mehta @ Kishore Kumar (P.W. 3) himself has stated about the demand of ransom to his wife through his own mobile phone and none of the witnesses, except the alleged victims, has stated that any demand of ransom was made to them by the accused persons.
IV. Therefore, submission has been made that since there is absence of ingredient of penal provision of offence under Section 364A IPC, hence the conviction made under Section 364A IPC will be said to be improper and unjustified and the judgment of conviction will be said to be not sustainable in the eye of law.
-8- Cr. Appeal (DB) No. 1278 of 2016 & Ors V. Further ground has been taken that even there is
no ingredient attracting the offence under Section 34 IPC.
VI. Ground has also been taken that Test Identification Parade (TIP) has been conducted after delay hence no reliability can be given on such identification and in such circumstances, the possibility of accused persons having been shown to the witnesses before being put on TIP cannot be ruled out and on this ground coupled with the other grounds, as agitated above, the judgment of conviction and order of sentence is not sustainable in the eyes of law.
VII. Learned counsel for the appellants has relied upon following judgments:
(i) Vishwanath Gupta v. State of Uttaranchal, (2007) 11 SCC 633
(ii) State of U.P. v. Wasif Haider, (2019) 2 SCC 303.
Argument on behalf of appellant in Cr. Appeal (DB) No.867 of 2016:
14. In addition to the grounds taken in Cr. Appeal (DB) No. 1278 of 2016 and Cr. Appeal (DB) No. 883 of 2016, grounds have been taken by Mr. A.K. Sahani, learned counsel for the appellant in Cr. Appeal (DB) No.867 of 2016 that:
-9- Cr. Appeal (DB) No. 1278 of 2016 & Ors I. The appellant has been convicted on the basis of allegation that appellant-Pappu Paswan was driving the alleged Bolero vehicle bearing registration no. JH-10B/1459, but none of the witnesses have deposed that the appellant-Pappu Paswan was driving the vehicle at the time when the crime was committed by the co-accused, namely, Anil Pal and Pintu Soni; and merely on the basis of confessional statement (Ext.8) of co- accused, he has been convicted in this case. II. It has further been contended that none of the witnesses has named this appellant during their examination-in-chief.
III. So far identification of the appellant-Pappu Paswan is concerned, submission has been made that P.W. 3-Kishore Kumar Mehta, who is one of the victims, has failed to identify this appellant even during trial in the court. P.W. 4-Surjit Kumar and P.W. 5, who are victims, have identified the accused Pappu Paswan by face for the first-time during trial on the date of his examination and even P.W. 3 failed to identify the appellant during trial in dock also, therefore, identification by P.W. 4 and P.W. 5 of the appellant-Pappu Paswan for the first time in the Court ought not to have been relied upon since the
- 10 - Cr. Appeal (DB) No. 1278 of 2016 & Ors possibility of the accused having been shown to these witnesses either in the jail custody or during the period of transit from jail to the Court before their examination cannot be ruled out.
IV. The complicity of the appellant has also been considered by the learned trial Court on the basis of recovery of mobile and the CDR containing the call details report but merely on the basis of aforesaid details of call record there cannot be any conviction unless the procedure under Section 65B of the Evidence Act will be taken recourse of. Furthermore, it has also not been disclosed by the Investigating officer or any of the witnesses that the aforesaid mobile was ever been used in commission of crime.
V. Mr. A.K. Sahani, learned counsel for the appellant has relied upon the judgment on the issue of TIP and the basis of conviction based upon the identification of the accused persons in the Court by making reference of the judgment rendered by Hon‟ble Apex Court in the case of Amrik Singh v. State of Punjab, (2022) 9 SCC 402 and Ramesh v. State of Karnataka, (2009) 15 SCC 35.
Argument on behalf of respondent-State:
- 11 - Cr. Appeal (DB) No. 1278 of 2016 & Ors
15. Mr. Abhay Kumar Tiwari, learned A.P.P. in Cr. Appeal (DB) No. 1278 of 2016; Mr. Vishwanath Roy, learned Spl. P.P. in Cr. Appeal (DB) No. 867 of 2016 and Mrs. Nehala Sharmin, learned A.P.P. in Cr. Appeal (DB) No. 883 of 2016 have jointly opposed the grounds agitated on behalf of appellants against the impugned judgment by defending the same stating inter alia that there is no infirmity in the impugned judgment on the following grounds:
I. That the victims, P.W. 3, 4 and 5 have fully supported the prosecution version. During examination-in-chief they in the same manner and mode narrated the entire prosecution version and did not deviate even during their cross-
examination.
II. So far delay in conducting TIP is concerned, submission has been made that after remanding in the case during course of investigation the accused persons were put on TIP so it cannot be said that there was delay in conducting TIP. Moreover, delay in conducting TIP did not cause any prejudice to the defense and merely for some delay, as per the defense version has caused, no doubt can be casted regarding the identification of the accused persons in TIP. It has been submitted that even failure to hold Test Identification Parade would not
- 12 - Cr. Appeal (DB) No. 1278 of 2016 & Ors make the evidence of identification in Court inadmissible. It has been contended that identification of an accused in TIP is only a circumstance corroborative of the identification of the accused in Court.
III. It has been contended that the appellants, Anil Pal and Pintu Soni have been identified by P.Ws.3 and 5 both in T.I. parade and in Court also. P.W.3 has identified above two accused in Court also. P.W.5 identified accused Anil Pal and Pintu Soni in T.I. parade and in Court he identified the above two accused. So far appellant Pappu Paswan is concerned P.W. 4 has identified him in Court by face. Similarly, P.W.5 identified all the three accused persons in Court both by face and by name.
IV. It has been contended that it has come during investigation that the appellant-Pappu Paswan was the driver of bolero vehicle bearing registration no.JH-10B-1459 which was used in the abduction of the victims and the same was seized by the police and, thus the involvement of the accused Pappu Paswan in the alleged crime cannot be denied.
- 13 - Cr. Appeal (DB) No. 1278 of 2016 & Ors V. So far argument of the appellants that there is lack of ingredient attracting Section 364A IPC is concerned, submission has been made that P.W. 6, wife of P.W. 3 has stated that she on her mobile has received the call of demand of ransom of 15 lakhs and was also threatened to face the consequence if the demand is not fulfilled, which has been corroborated by P.W. 2, the informant. Furthermore, all the witnesses have also stated about demand of ransom and in case of non- fulfillment of demand of ransom threatening of life was given.
VI. The ground has been taken that since there is specific deposition with respect to demand of ransom as also the consequence of the threat of pistol having been shown to P.W. 3, 4 and 5 during abduction, hence it is incorrect on the part of the appellants to take the ground that there is no ingredient of demand of ransom, rather if the testimony of P.W. 3, 4, and 5 along with P.W 6 will be taken together it would be evident that there is specific demand of ransom of Rs. 15 lakhs. VII. The argument, which has been advanced that there is no ingredient of Section 34 IPC, submission has been made that it is not the case
- 14 - Cr. Appeal (DB) No. 1278 of 2016 & Ors in the facts of the case so far, these two appellants namely Anil Pal and Pintu Soni @ Pintu Kumar Soni are concerned that they are convicted with the aid of Section 34 IPC rather they have been convicted on the basis of direct attributablity of commission of kidnapping for the purpose of ransom.
VIII. In addition to that Mrs. Nehala Sharmin, learned APP has taken the ground so far as the appellant- Pintu Soni @ Pintu Kumar Soni is concerned that he is a man of history-sheeter and in one case he is convicted, as per the observation made in the impugned judgment of conviction.
IX. It has been submitted that it is incorrect on the part of the appellants to take the ground that there is no recovery rather according to him as would be evident from paragraph 8 of the testimony of Investigating Officer (PW-8), the vehicle was recovered on the disclosure being made by co- accused Anil Pal, the appellant in Cr. Appeal (DB) No. 1278 of 2016.
16. Learned Additional Public Prosecutor on the basis of aforesaid grounds has submitted that the prosecution has been able to successfully prove the charge u/s 364A/34, I.P.C. against all the accused persons and basis upon
- 15 - Cr. Appeal (DB) No. 1278 of 2016 & Ors which the judgment of conviction and order of sentence has been passed by learned trial Court, which requires no interference by this Court.
17. 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.
18. This Court before considering the argument advanced on behalf of the parties is now proceeding to consider the deposition of witnesses, as per the testimony as recorded by learned trial Court.
Testimonies of the witnesses :
19. P.W.1-Braj Kumar Mahto has stated on oath that the occurrence is of 11.02.2015. When Kishore, Ram Kumar Mehta and Surjit were returning from Chhatisgarh by car and had reached in Karso Bongari valley at about 8.00 p.m., they were abducted. He tried to locate their whereabouts but their mobiles were switched off. This witness has deposed that he along with Braj Kishore Mehta, Mohan Mehta, Arun Mehta, Bisundeo Mehta and Shyam Mehta went to search the victim in Chhatisgarh and when they were returning, they found their car in Karso Bongari forest. This witness has further stated that Kishore (one of the victims) had talked with his daughter, Devi Kumari, stating that they have been abducted and the
- 16 - Cr. Appeal (DB) No. 1278 of 2016 & Ors abductors are demanding ransom of Rs.15,00,000/- or else are threatening to kill them. This witness has further deposed that again call of the friend of Kishore was also received for arranging Rs. 15,00,000/- hurriedly or else the abductors will kill the victims. Thereafter, he along with the informant went to the police station and lodged the case.
20. It has further been deposed that Pintu Soni and Anil Pal had abducted all the three persons, which he could know from the Newspaper. This witness has stated that the police brought them on 15.02.2015 after getting them released. This witness has further stated that since he had not seen the abductors as such, he does not identify them. This witness identified accused Pintu Soni and Anil Pal standing in the Dock of the Court, but seeing accused Pappu Paswan, stated that he does not identify him and has further stated that he is seeing all the three accused persons for the first time in the Court.
21. During cross examination by the defence, this witness has admitted that none of the abductors had phoned him nor Kishore had phoned him and that Kishore, Ram Kumar Mehta and Surjit had come to the house themselves. He has stated that he had read the news of abduction of the victims in Prabhat Khabar.
- 17 - Cr. Appeal (DB) No. 1278 of 2016 & Ors
22. P.W.2 Janeshwar Mahto, informant of the case, has stated that the incidence is of 13.02.2015 when his son Kishore Kumar, nephew Surjit Kumar and the brother-in- law of his son namely Sriram @ Laddu were returning from Chandanpur by the car, they were abducted in Thamawa forest. He has stated that he tried his level best to contact them on phone, but he could not succeed in contacting them. This witness has stated that he informed his Samdhi Braj Kumar, his brother-in-law Vijay and others. When his son and other did not return in the night then he along with others went in search of them by a vehicle.
23. This witness has further stated that in course of search when they reached near Karso forest than he found the car of the victims in the nearby area but the victims were not found in the car. When they were contemplating to inform Chainpur Police Station he received phone call of his daughter-in-law, who told him that his son and others have been kidnapped and she asked for arrangement of money and not to inform the police.
24. This witness has further stated that at about 3.00 p.m. a phone call was made to Narendra to arrange Rs.15,00,000/- and similar call was also made to Chhotu Babu. This witness has stated that they sought time from the abductors, but after 5.00 p.m. no call was received from the abductors and then they informed the Chainpur
- 18 - Cr. Appeal (DB) No. 1278 of 2016 & Ors Police by filing a written report, which was written by Bablu over which he put his signature. On the identification of this witness, the written report was marked as Ext.1.
25. This witness has further stated that on 15.02.2015 at 6.00 p.m. his son, Sriram and Surjit returned and at that time they did not narrate anything to him and, thereafter, this witness went to the police station. This witness has stated specifically that his son and his companion had not stated the name of their abductors to him.
26. On seeing the accused persons in Dock, this witness did not identify them and said that he had not seen them earlier. During cross examination this witness has stated that he came to know about the abduction on the next day on 14th at about 7.30 a.m. This witness has stated that seeing the vehicle vacant, he had suspected about abduction.
27. P.W.3 Kishore Kumar Mehta @ Kishore Kumar is the son of the informant and one of the victims. He has stated that on 13.02.2015 at 7.00 p.m. when they were returning from Chandanpur and had reached at Thamawa valley within Chainpur P.S. by the car along with his cousin Surjit Kumar and brother-in-law Ram Kumar Mehta @ Laddu Mehta at that time a Bolero vehicle overtook their car and stopped obliquely in front of their
- 19 - Cr. Appeal (DB) No. 1278 of 2016 & Ors car blocking the road compelling him to stop the car. It is alleged that from the said Bolero vehicle 4-5 persons alighted, who after opening the gate of the car forcibly got down his cousin Surjit and slapped him. Thereafter, the informant came down from the car and asked them as to why they are assaulting his brother. In the meantime, accused Anil Pal and Pintu Soni pressed their pistol on their head from behind and forcibly made them to sit on the bolero vehicle and took them away.
28. He has stated that after driving the vehicle for 2-3 hours he and his companions were compelled to get down from the said vehicle and from there they were taken in the forest and disclosed to them that they have been abducted. This witness has stated that the accused persons kept them in the forest under a tree for whole night and in the morning, they asked this witness to make calls to their family members for arranging money and they were demanding ransom of Rs.15,00,000/- for their release.
29. This witness has stated that they made him to talk with his wife and told him to ask his wife for arrangement of Rs.15,00,000/- and not to inform the matter to the police. This witness has stated that after arranging Rs.4,00,000/- the family members informed the abductors, but they said that it was not enough and threatened them to be killed. This witness has stated that the miscreants
- 20 - Cr. Appeal (DB) No. 1278 of 2016 & Ors were repeatedly asking money from his family members and they forcibly compel this witness to talk with his family members.
30. This witness has stated that when the money was not arranged on the same day, the miscreants were demanding ransom from his family members on 15.02.2015, he identified the accused persons and could know their names as Pintu Soni, Anil Pal, Bhola Singh, Lav Singh and Paras Singh from the talks going in between them. This witness has stated that on the 3rd day of the occurrence at about 4.00 p.m. the accused persons told them that since the extremists have come, let us flee or else, they will kill. Thereafter, all started running and on the call of the police personnel, they went to them, who brought them to the Manika P.S. and from where they were reached to their respective houses.
31. This witness has stated that his statement was recorded by the police where he had stated everything. He has also stated that his statement was also recorded by the Magistrate and on the identification of this witness, the signature on his statement under Section 164 Cr.P.C. was marked as Ext.2.
32. This witness has further stated that he had participated in the T.I. parade of the accused persons in which he identified accused Anil Pal and Pintu Soni. He
- 21 - Cr. Appeal (DB) No. 1278 of 2016 & Ors has also stated that his brother-in-law had also participated in the T.I. parade in which he had also identified the said two accused persons. This witness identified accused Anil Pal and Pintu Soni in the dock of the Court, while seeing accused Pappu Paswan, he stated that he does not know him.
33. This witness in his evidence during his cross- examination admitted at para 9 has stated that T.I. Parade was conducted after one month of the occurrence and in para 11 further has stated that his statement under Section 164 Cr.P.C. was recorded after one and half month of the occurrence.
34. P.W.4 Surjit Kumar is also one of the victims and nephew of the informant. This witness has stated that the occurrence is of 13.02.2015 at about 7.00 p.m. when he along with his cousin Kishore Kumar Mehta, his brother- in-law Ram Kumar Mehta @ Laddu Mehta and his sister Neera Kumari proceeded from Chandanpur on car bearing no. JH-01BK-4931, he has stated that his sister was dropped at Ramanujganj and, thereafter, they proceeded for Daltonganj.
35. According to this witness when they reached near Thamawa Valley a bolero vehicle overtook them and got stopped their car. From that vehicle 6-7 boys alighted. They opening the door of the car forcibly brought him
- 22 - Cr. Appeal (DB) No. 1278 of 2016 & Ors down and started slapping him and asked him to sit on the bolero vehicle. He has stated that thereafter, they also brought his cousin Kishore Kumar Mehta and his brother- in-law Laddu Kumar Mehta to vehicle and also made them to sit on the front seat of the bolero. The miscreants ordered them to put their heads down and not to pip outside the vehicle.
36. He has stated that two boys were sitting behind them, who were armed with pistol and two persons were sitting on their both sides. He has stated that after driving the vehicle for 2-3 hours, they got them down and took them to a pond and began starting quizzing them separately. This witness has stated that one of the miscreants took money from him and told him not to tell anyone otherwise he will be killed. After Inquiry from them separately all were assembled together. They snatched his mobile and money and kept them in the forest.
37. This witness has stated that the miscreants kept them in the forest for whole night and on the next day morning at about 8.00 a.m. they asked his cousin Kishore to fetch Rs.15,00,000/-through mobile informing about their abduction or else all the trio will be killed.
38. This witness has stated that the miscreants made his brother to have a talk with his family member. This witness has stated that when the ransom was not arranged
- 23 - Cr. Appeal (DB) No. 1278 of 2016 & Ors the miscreants threatened that if the ransom is not brought till the morning, they will be killed and thrown. Subsequently, the miscreants put off the matter till evening and they were pressing hard for causing the ransom to be fetched by them.
39. This witness has stated that the miscreants were talking with each other by calling their names as Anil Pal, Pintu Soni, Bhola Singh, Paras Singh, Bablu Singh, Lav Singh, Pintu Singh, etc. and they had kept their faces opened. This witness has stated that on 15.02.2015 the miscreants stated that since the extremists have come, they will kill all of them and so they started fleeing with the miscreants. On the call of the police, they went to them, who brought them to Manika P.S. and from there they were brought to Chainpur P.S. and after making inquiry from them, they were dropped to their respective houses.
40. This witness has stated that his statement was recorded in the Court also over which he had put his signature. He identified his signatures on every page of his statements recorded u/s 164, Cr.P.C., which were marked as Ext.3, 3/1 and 3/2. He identified the accused Pappu Kumar Paswan by face in the court.
41. P.W.5 Ram Kumar Mehta @ Laddu is third victim of the occurrence. He has also deposed in the same manner as P.W.3 and 4 deposed. He has stated that to have
- 24 - Cr. Appeal (DB) No. 1278 of 2016 & Ors rendered his statement under Section 164, Cr.P.C. before the Magistrate in Court. He has identified his signatures on two pages of his statement under Section 164, Cr.P.C., which were marked as Ext.4 and 4/1. This witness has stated to have participated in T.I. parade and to have identified accused Anil Pal and Pintu Soni therein. The witness identified all the three accused in the dock of the Court by name and face.
42. This witness in his evidence at paragraph 5 during his cross-examination stated accused persons were not known to him prior to the occurrence and in paragraph 6 stated that his statement was recorded at Manika P.S. and again in Chainpur P.S. and thereafter in Court also. This witness has further stated at para 7 that the T.I. Parade was conducted after one month of occurrence and his statement u/s 164 Cr.P.C was recorded after one week from the day of T.I. Parade.
43. P.W.6 Lilawati Devi is the wife of one of the victims Kishore Kumar Mehta (P.W.3). She has stated that the occurrence is of 13.02.2015 at 7.00 p.m. On that day her husband Kishore Kumar Mehta, her brother-in-law (Dewar) Surjit Kumar Mehta and brother Ram Kumar Mehta were returning from Chandanpur to Daltonganj by their car. She has stated that when she contacted her husband on mobile, he told him that all the trio are
- 25 - Cr. Appeal (DB) No. 1278 of 2016 & Ors returning and asked her to keep ready meal for them. This witness has further stated that after preparation of food within an hour, she made a call on the mobile of her husband, but the mobile was not attended by anyone. Thereafter, this witness tried to contact her brother-in-law and brother on their respective mobile, but they also did not attend the call. Being worried this witness made call to her paternal house as also to her in-laws‟ house, who told that they were searching them.
44. She has stated that on that day her husband, brother-in-law and brother did not come to Daltonganj. She stated that on the next day on 14.02.2015 at 7.00 a.m. the car was found in abandoned condition at Thamawa valley. She has stated that thereafter, at 8.00 a.m. on her mobile a call was received from mobile no.9504699565 which was her husband and her husband asked for arranging money of Rs.15,00,000/-, since they have been abducted and he also directed not to inform the police otherwise, they will be killed.
45. This witness has stated that thereafter, the abductors continuously demanded ransom money and when the call was received by her in the evening, she told them that arrangement of Rs.10,00,000/- has only been made and requested the abductors to release the abducted persons after accepting Rs.10,00,000/-, but the abductors pressed
- 26 - Cr. Appeal (DB) No. 1278 of 2016 & Ors for arrangement of the entire amount of Rs.15,00,000/- and threatened to kill them.
46. This witness has stated that on 15.02.2015 in between 6-7.00 p.m. the police brought her husband, brother-in-law and brother after their release from the clutches of the abductors. This witness has stated that the victims narrated the names of Pintu Soni, Anil Pal, Lav Singh and Bhola Singh as their abductors. Nothing is brought in her cross-examination which can give a contrary impression about trustworthiness of this witness.
47. P.W.7 Shyam Bihari Mahto is the nephew of P.W.1. He has stated that the occurrence is of 13.02.2015 at about 7-8.00 p.m. This witness has stated that his uncle said that his daughter has informed that Laddu Mahto @ Sriram Mahto, Kishore Kumar Mehta and his cousin Surjit Kumar were returning from Chandanpur, but had not reached to their house and on this when they went in search of them, they found the car of Kishore Kumar Mehta in abandoned condition in Thamawa forest. This witness has stated that they stopped at the car for about an hour and made inquiries from the nearby people, but they all denied to have any knowledge.
48. This witness has stated that on 14-02-2015 at about 8.00 a.m. his cousin sister Lilawati Devi intimated on phone that all the three have been abducted and the
- 27 - Cr. Appeal (DB) No. 1278 of 2016 & Ors abductors are demanding Rs.15,00,000/- as ransom. The uncle of this witness said that his daughter is trying to arrange Rs.15,00,000/-, but the money has not been arranged by that time. This witness has stated that on 14.02.2015, the matter was reported to the Chainpur P.S. However, this witness has again stated that the information was given to the police station by Janeshwar Mahto.
49. This witness has stated that on 15-02-2015 he had a talk with his cousin Laddu Mehta @ Sriram Mehta after his return to his house, who told that miscreants namely Anil Pal, PintuSoni, Paras Singh, Lav Singh and one more whose name he fell to recollect, had abducted him. This witness admittedly is hearsay witness and he deposed in the Court whatever he heard from his cousin sister and the victims.
50. P.W.8 Sanjay Kumar Malwiya is the I.O. of the case. He has stated that on 14.02.2015 he was posted as Officer-in-charge of Chainpur P.S. On that day the informant Janeshwar Mahto had submitted a written report on the basis of which Chainpur P.S. Case No.18/2015 under Section 364A I.P.C. was registered and he took up the charge of the investigation himself. He proved the endorsement in the pen of literate constable Sawant Kumar Das under his signature, which was
- 28 - Cr. Appeal (DB) No. 1278 of 2016 & Ors marked as Ext.1/1. On the identification of this witness formal F.I.R. was marked as Ext.5.
51. This witness has stated that after taking over the charge of investigation, he recorded the subsequent statement of the informant and proceeded towards the place of occurrence with other police personnel. He has stated that the witnesses during inspection of place of occurrence told that a white colour I-20 car was found standing in the abandoned condition in the north direction, which was taken away by the family members of the abducted persons.
52. This witness has stated that he informed the technical section of the S.P. Palamau through mobile to locate the tower location of mobile phone no.9504699565, which was mentioned in the F.I.R. from where the location of the said mobile was reported to be Manika in Latehar and on being contacted to the Officer-in-charge, Manika P.S., he said that there is an old gang of Bhola Singh, who has kidnapped several persons, but his activity is not known.
53. He has further stated that on confidential information he arrested accused Anil Pal from his in-laws‟ village-Bari on chase, who admitted his involvement in this case and named his accomplices namely Bhola Singh, PintuSoni, Lav Singh, Pintu Singh, Paras Singh, etc. This witness has
- 29 - Cr. Appeal (DB) No. 1278 of 2016 & Ors stated that on the pointing out by accused Anil Pal he went to Keri Mahua Forest along with the said accused and the Officer-in- charge, Manika P.S. and when they went inside the forest two persons, whose name was disclosed by accused Anil Pal as Pintu Soni and Lav Singh, started fleeing away and taking advantage of the dense forest managed to escape.
54. He stated that he saw other persons fleeing away and when he raised alarm that they are police, all the three victims came to them and told that they had been kidnapped, who were brought to Manika Police Station where their statement was recorded one by one. This witness has proved the confessional statement of accused Anil Pal, which was marked as Ext.6. This witness has stated that thereafter, he returned to Chainpur P.S. lodged accused Anil Pal in police lock up and sent the victims to their houses under police escort.
55. This witness has stated that on the basis of the confessional statement of accused Anil Pal, the bolero vehicle no. JH-10B-1459 used in the occurrence was seized lying in front of the house of Balram Sao s/o Bhola Sao on the Moram road at village- Guasarai, P.S.-Pandu, District-Palamau by preparing a seizure list. On the identification of this witness, the said seizure list was marked as Ext.7, copy of which was made over to the
- 30 - Cr. Appeal (DB) No. 1278 of 2016 & Ors driver of the said vehicle namely Pappu Paswan, who was arrested and brought to the police station, who also rendered his confessional statement and admitted his involvement in the occurrence.
56. On the statement of this witness, the confessional statement of accused Pappu Paswan was marked as Ext.8. This witness has stated that from the possession of accused Pappu Paswan a mobile phone was recovered which was seized by preparing a seizure list. On the identification of this witness, the said seizure list was marked Ext.9. This witness has stated that letter for the CDR of SIM Nos. 4294808469, 7677207591, 8969485542 and 7677624116, which were found inserted in the seized mobile was sent to the technical section.
57. This witness has stated that during course of investigation, he arrested accused Pintu Soni, who also confessed his guilt, which was recorded in six page and the same on the identification of this witness was marked Ext.10. This witness has stated that one mobile phone was also recovered and seized from the possession of accused Pintu Soni by preparing a seizure list. On the identification of this witness, the said seizure list was marked Ext.11.
58. This witness has stated that he got T.I. parade of accused Anil Pal and Pintu Soni conducted. He has also stated to have got the statement of all the three victims
- 31 - Cr. Appeal (DB) No. 1278 of 2016 & Ors recorded u/s 164, Cr.P.C. He has stated that the CDRs of above said mobile numbers were received by him, which were enclosed with the case diary. This witness has stated that he after conducting investigation submitted charge sheet against the accused persons facing trial.
59. P.W.9 is Deodas Bhandari is a formal witness, who produced the seized material exhibits of this case before the Court on the order of the Officer-in-charge. He proved the order of the Officer-in-charge, Chainpur P.S. in the pen of Munsi Sawan Kumar Das and bearing signature of Officer-in- charge Anup Mahto, which was marked as Ext.12 on the identification of this witness.
60. He has stated that the material exhibits brought by him bears the Malkhana no.MR04 and 05, which have been given to him under seal by the police station. The material exhibits were sealed in a envelop, which was opened in presence of both sides and were found to be two mobile sets. This witness has stated that these two mobile sets are the material exhibits of this case, which have been brought by him today, which bore the P.S. Case Number. One of the mobile sets bear name of Pintu Soni, while the another the name of Pappu Paswan. Both the mobile sets were marked as materials Ext.I and II.
61. P.W.10 Binod Kumar is the Judicial Magistrate, who conducted T.I. parade in this case. He has stated that on
- 32 - Cr. Appeal (DB) No. 1278 of 2016 & Ors 21.03.2015, he was posted as Judicial Magistrate, 1 Class st in Civil Courts, Palamau. He has stated that as per the order of the C.J.M. Palamau, he had conducted T.I. parade of accused Anil Pal and Pintu Kumar Soni in the Central Jail, Medininagar, Daltonganj. On identification of this witness the T.I. P. chart was marked as Ext.13.
62. He has stated that in the said T.I. parade Kishore Kumar Mehta and Ram Kumar Mehta had identified both the accused namely Anil Pal and Pintu Kumar Soni. He has stated that Rama Shankar Prasad, Assistant Jailor had appended his signature on the T.I. P. Chart as witness of the T.I. parade. The identifying witness Kishore Kumar had identified both the accused persons as the persons as abductor, who were armed with pistol at the time of occurrence, while another witness Ram Kumar Mehta had also identified them to be the abductors armed with pistol. This witness has stated that on the order of C.J.M Palamau he had recorded statement of Kishore Kumar Mehta @ Kishore Kumar, Surjit Kumar and Ram Kumar Mehta @ Laddu Mehta u/s 164, Cr.P.C. On the identification of this witness, the statements of above- named witnesses were marked as Ext.2/1, 3/3 and 4/2, respectively.
- 33 - Cr. Appeal (DB) No. 1278 of 2016 & Ors Analysis of the cases:
63. At this juncture we deem it appropriate to answer the point for consideration in this appeal as to whether the facts, in this case, attract the offence under Section 364-A IPC and if the answer is in the negative, would it be just and proper to modify the conviction to a sentence under Section 363 IPC.
64. 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,
- 34 - Cr. Appeal (DB) No. 1278 of 2016 & Ors 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 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."
65. 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.
- 35 - Cr. Appeal (DB) No. 1278 of 2016 & Ors
66. 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.
67. 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).
68. 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.
- 36 - Cr. Appeal (DB) No. 1278 of 2016 & Ors
69. Since, in the instant case we are concerned 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.
70. 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.
71. 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
- 37 - Cr. Appeal (DB) No. 1278 of 2016 & Ors 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."
72. 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.
73. 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.
74. 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".
75. 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
- 38 - Cr. Appeal (DB) No. 1278 of 2016 & Ors that such person may be put to death or hurt. Either part of above condition, if fulfilled, shall fulfil the second condition for offence.
76. 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.
77. 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 "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.
78. 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
- 39 - Cr. Appeal (DB) No. 1278 of 2016 & Ors 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.
79. 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.
80. Before adverting 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.
81. 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
- 40 - Cr. Appeal (DB) No. 1278 of 2016 & Ors 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."
82. 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 or any other person to do or abstain from doing any act or to pay a ransom."
- 41 - Cr. Appeal (DB) No. 1278 of 2016 & Ors
83. 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."
84. In Vikram Singh v. Union of India (supra), it was observed 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 concerned or someone else to do something or to forbear from doing something or to pay ransom. These ingredients are, in
- 42 - Cr. Appeal (DB) No. 1278 of 2016 & Ors 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."
85. 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.
86. Further, this Court deems it fit and proper to refer herein the principle of conviction which is based upon the principle that prosecution is to prove the charge beyond all reasonable doubt.
87. The position of law is well settled that there cannot be any conviction of a person snatching away the liberty to life if the prosecution is not able to prove the charge beyond all shadow of doubt as has been held by Hon'ble Apex Court in the case of Rang Bahadur Singh and Ors. v. State of U.P., (2000) 3 SCC 454 wherein at paragraph 22 it has been held which reads hereunder as:-
- 43 - Cr. Appeal (DB) No. 1278 of 2016 & Ors "22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."
88. Further, in the case of Sheila Sebastian v. R. Jawaharaj and Anr. reported in (2018) 7 SCC 581 the Hon'ble Apex Court has held at paragraph 28 which reads hereunder as :-
"28. -----. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability."
89. 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.
90. In the instant case argument has been advanced by learned counsel for the appellants that there was no demand of ransom rather victim himself has stated about the demand of ransom to his wife by his own mobile and none of the witnesses except the victims has
- 44 - Cr. Appeal (DB) No. 1278 of 2016 & Ors stated that there was demand of ransom therefore there is no ingredient of Section 364A I.P.C. rather at best the case will come under the fold of Section 363 IPC. Further submission has been made that TIP has been conducted after inordinate delay and in such circumstances, the possibility of accused persons having been shown to the witnesses before being put on TIP cannot be ruled out.
91. While on the other hand, leaned APP has submitted that the victims, who have been examined as P.W. 3, 4 and 5 have fully supported the prosecution version and specifically deposed that appellant-Anil Pal and Pintu Soni pressed their pistol on their head from behind and forcibly made them to sit on the Bolero vehicle and took them in the forest and asked the family members to pay Rs. 15 lakhs. Version of these victims has been supported by P.W. 6 on whose mobile ransom was demanded.
92. Further, on the confession appellant Anil Pal, the Bolero vehicle, which was used in commission of crime, was recovered, which was driven by appellant-Pappu Paswan, who has confessed his guilt also. So far delay in conducting TIP is concerned submission has been made that after remand of the appellants, during course of investigation, the accused persons were put on TIP
- 45 - Cr. Appeal (DB) No. 1278 of 2016 & Ors therefore, it cannot be said that there was delay in conducting TIP.
93. This Court, in the backdrop of argument advanced by learned counsel for the parties vis-à-vis the testimony of the witnesses, is now proceeding to examine the case of appellants in order to appreciate the argument as to whether the ingredient of Section 364A is being attracted or not.
Analysis of testimonies of prosecution witnesses:
94. The victims, who have been examined as P.W. 3, 4 and 5 have all along supported the version of kidnaping and the purpose of kidnapping which is for the purpose of ransom and have also deposed that threatening was given that if the ransom would not be paid, they will be killed.
95. P.W. 3, Kishore Kumar Mehta @ Kishore Kumar, one of the victims, has deposed at paragraph 1 of his deposition that when they were returning from Chandanpur and had reached at Thamawa valley a Bolero vehicle overtook their car and from the said Bolero vehicle 4-5 persons alighted. He has further deposed that accused Anil Pal and Pintu Soni pressed their pistol on their head from behind and forcibly made them to sit on the bolero vehicle and took them away to forest. He has further deposed that they asked this witness to make calls to their family members for arranging money and they were
- 46 - Cr. Appeal (DB) No. 1278 of 2016 & Ors demanding ransom of Rs.15,00,000/- for their release. This witness has stated that they made him to talk with his wife and told him to ask his wife for arrangement of Rs.15,00,000/- and not to inform the matter to the police.
96. This witness has deposed at paragraph 3 and 4 of his testimony that he identified the accused persons and could know their names as Pintu Soni, Anil Pal, Bhola Singh, Lav Singh and Paras Singh from the talks going in between them. This witness identified accused Anil Pal and Pintu Soni during TIP and also in the dock of the Court. While seeing accused Pappu Paswan, he stated that he does not know him.
97. For ready reference, paragraph 1, 3 and 4 of the deposition is quoted as under:
1- ?kVuk fnukad 13&2&15 ds 7 cts 'kke dh gSA geyksx pUnuiqj ls ykSV jgs Fksa to geyksx Fkeok ?kkVh] Fkkuk pSuiqj ds ikl viuh dkj ls igqpAs esjs lkFk esjk ppsjk HkkbZ lqthr dqekj ,oa lkyk jke dqekj esgrk mQZ yMq esgrk Hkh FkkA mlh oDr fiNs ls vkrh gwbZ csysjks xkM+h geyksx dks vksojVsd djds gekjs xkM+h ds vkxs frjNk djds [kM+k dj fn;k ftlls gesa viuh xkM+h jksduh iM+hA mlds ckn mDr csysjks xkM+h ls 4&5 O;fDr mrjsa vkSj gekjh xkM+h dk xsV [kksyok dj esjk HkkbZ lqthr dks xkM+h ls mrkj dj 2&3 FkIiM+ ekjs blds ckn geyksx xkM+h ls mrj x;sa vkSj muls iqNk fd D;ksa ekjihV dj jgs gSa blh chp vuhy iky vkSj fiUVq lksuh esjs vkSj esjs lkys ds lj ds fiNs fiLVy lVk fn;k vkSj tcjnLrh ge rhuksa dks viuh csysjks xkM+h esa cSBk fy;sa blds ckn geyksxksa dks ysdj mlds ckn 2&3 ?kaVk xkM+h pykus ds ckn ,d dPph lM+d ij ys tkdj mrkj fn;k vkSj geyksxksa dks txy esa ys x;sa vkSj geyksxks dks cksys fd viyksxksa dk vigj.k dj fy;k x;k gSA vfHk;qDr yksx geyksxks dks jkr Hkj taxy esa isM+ ds uhps j[kk vkSj nqljs fnu lqog es gesa dgk fd vius ?kj ls Qksu djds iS ls dk bUrstke djksA os yksx geyksxks dks NksM+us ds fy, iUnzg yk[k :i;s dh ekax dj jgs FksAa muyksxks us eq>s esjh iRuh ls ckr djok;k vkSj gesa /kedh fn;k fd viuh iRuh dks cksyks fd iUnzg yk[k :i;k dk bUrstke djsa vkSj Fkkuk ij mldk [kcj ugh djsA gekjs ?kjokyksa us fdlh rjg 4 yk[k :i;k dk bUrstke fd;k vkSj mUgsa [kcj fd;k bl ij
- 47 - Cr. Appeal (DB) No. 1278 of 2016 & Ors vigj.kdRrkZ cksysa fd blls dqN ugh gksxk vkSj tku ekjus dh /kedh Hkh fn;kA vfHk;qDrx.k ckj&ckj gekjs ifjokj ds yksxks ls iSlk dh ekax djrs jgsaA iSlksa dh ekax vfHk;qDrks us tcjnLrh eq>ls djokrs FksaA ml fnu iSls dh O;oLFkk ugh gks ik;h rks nqljs fnu fnukad 15&2&15 dks to vfHk;qDrx.k esjs ifjokj okyks ls iSls dh ekax dj jgs Fksa mlh le; geus vfHk;qDrks dks igpkuk vkSj mudk vkilh ckrphr ls eSa vfHk;qDr fiUVq lksuh] vuhy iky] Hkksyk flg] yo flag] ikjl flag dk uke tkusAa mudh ckrphr ls eq>s lkjs vfHk;qDrksa ds uke dk Kku gqvkA ?kVuk ds frljs fnu pkj cts 'kke ds vklikl vfHk;qDrx.k gesa cksys fd ikVhZ okys lc vk x;s gS Hkkxks tYnh ugh rks tku ekj nsxsa ftlds ckn geyksx Hkkxus yxs vkSj iqfyl okyks ds vkokt ij iqfyl okyks ds ikl Hkkx dj pys x;sa mlds ckn iqfyl gesa ysdj efudk Fkkuk vk;hA mlds ckn iqfyl us gesa vius&vius ?kj igqpk;k FkkA 3- bl okn esa eSus vfHk;qDrksa ds igpku ijsM esa Hkkx fy;k Fkk vkSj igpku ijsM esa vfHk;qDr vuhy iky vkSj fiUVq lksuh dks igpkus FksAa bl okn esa esjs lkys us Hkh igpku ijsM esa Hkkx fy;k Fkk mUgksus Hkh nksuks vfHk;qDrksa dks igpkuk FkkA 4- lk{kh U;k;ky; ds dV?kjs esa [kM+s vfHk;qDr vuhy iky vkSj fiUVq lksuh dks ns[kdj igpkurs gSa vkSj rhljs vfHk;qDr iIiq ikloku dks ns[kdj dgrs gSa fd eSa bls ugha igpkurk gw¡A
98. P.W.4 Surjit Kumar, another victim, has also stated on the same line as stated by P.W.3. At paragraph 2 of his deposition this witness has stated that when they were kept in forest the miscreants were talking with each other by calling their names as Anil Pal, Pintu Soni, Bhola Singh, Paras Singh, Bablu Singh, Lav Singh, Pintu Singh, etc. and they had kept their faces opened.
99. For ready reference, relevant portion of testimony at paragraph 2, 3 and 4 and 5 are quoted as under:
1- tc ge FkEogk ?kkVh ds ikl igqps rks fiNs ls ,d rst xfr vkdj cksysjks xkM+h us gekjh xkM+h dks vksojVsd dj gekjh xkM+h dks jksd fn;k ml xkM+h ls 6&7 yM+ds mrjs vkSj gekjh xkM+h dk njoktk [kV[kVkus yxsA mu yksxksa us gekjs dkj dk njoktk [kksy fn;kA [khpdj eq>s igys mrkjk vkSj esjs lkFk ekjihV djus yxkA vkSj FkIiM+ ls ekjus yxsA vkSj cksys dh gekjs xkM+h cksysjksa esa cSBks blds ckn esa gekjs ppsjs HkkbZ fd'kksj dqekj esgrk vkSj mlds lkyk yMMq dqekj esgrk dks xkM+h ls mrkj ge rhuks a dks xkM+h ds chp okys lhV ij cSBk dj gekjk lj >qdok fn;k vkSj cksyk fd ckgj ugh ns[kuk gSA xkM+h esa fiNs rjQ nks yM+ds fiLVy ysdj cSBs FksA vkSj geyksxksa ds nksuks vksj ,d&,d vkneh cSBk FkkA mlds ckn nks rhu ?kaVs rd xkM+h pyk dj taxy esas dPph
- 48 - Cr. Appeal (DB) No. 1278 of 2016 & Ors jkLrs ij xkM+h jksdk vkSj geyksxksa dks mrkj dj os gesa iSny ,d rkykc ds ikl ys x;s vkSj lHkh vyx&vyx j[kdj iqNrkN djus yxsA 2- geyksxksa dks jkr Hkj taxy esa j[kk nqljs fnu djhc 8 cts lqcg es esjs HkkbZ fd'kksj dks muyksxksa us dgk fd Qksu ls ckr djds crkvksa dh rqeyksxksa dk vigj.k gks x;k gS vkSj fQjkSrh ds :i esa 15 yk[k :i;s ?kj ls eaxokvksa ugh rks rqe rhuksa dks tku ls ekj nsaxsAa mlds ckn esjs HkkbZ dh ckr vijk/kdfeZ;ksa us ?kj ls djokbZ vijkf/k;ksa us vius eksckbZy Qksu ls ?kjokyksa ls ckrphr djokbZA vkSj iSlksa dh ekax djokbZ FkhA muds }kjk ;g Hkh /kedh fn;k x;k Fkk fd iqfyl dks lwpuk ugh nsuk ugh rks vatke cqjk gksxkA ml fnu nks rhu ckj /kedh nsdj ?kj okyksa ls ckr djk;h x;h vkSj iSlksa dh ekax dhA 'kke rd iSlksa dh O;oLFkk ugh gks ikbZA rc mlds ckn vijkf/k;ksa }kjk /kedh fn;k x;k fd vxj lqcg rd iSlk ugh eaxok;k rks rqe yksxksa dks ekj dj Qsd fn;k tk;sxkA nqljs fnu 'kfuokj dk fnu Fkk fnukad 14&2&15 dks geyksxksa us mu yksxksa ds lkeus fxM+fxM+k;s vkSj dgk fd cSad gkQ Ms jgrk gSA blfy;s geyksxksa dks le; fn;k tk;sA muyksxksa us iqu% 'kke rd dk le; fn;kA vkSj nckc nsdj ?kj ls tYnh ls iSlk eaxokus ds fy, /kedh nsrs jgsA ml fnu geyksxksa dks [kkuk f[kyok;k x;k FkkA os yksx ,d nqljs ls uke ysdj cksyrs Fks ftuesa ls ,d vfuy iky] fiUVq lksuh] Hkksyk flag] ikjl flag] cCyq flag] yo flag] fiUVq flag bR;kfn ls ,d nqljs dks lEcksf/kr djrs FksA muyksxksa us vius psgjs Hkh [kqys j[kk gqvk FkkA 3- 'kfuokj dks iSlk ugh vkus ds ckn 'kke esa muyksxksa us /kedh fn;k fd tSls Hkh gks dy lqcg rd iSlk eaxokvksa ugh rks ekj fn;k tk;sxkA muyksxksa us jkr Hkj taxy esa j[kkA rhljs fnu jfookj dks mUgksus esjh HkkbZ dh ckr iqu% ?kj okyksa ls djokbZ vkSj iSls dh ekax dhA fnu Hkj ckr dk flyflyk pyrk jgkA yxHkx 3 cts fnu esa fnukad 15&2&15 dks vijk/kdfeZ;ksa us dgk fd ikVhZ okysa vk x;s gSaA ugh rks vkiyksxksa dks Hkh ekj nsxsAa ge lHkh muds lkFk Hkkxus yxsA gesa vkokt feyh fd ge iqfyl okys gSA ;g lqudj geyksx :ds vkSj ge iqfyl okyksa ds rjQ Hkkxs iqfyl okyks us geyksxksa dks jksddj iwNrkN fd;k vkSj mlds ckn igys efudk Fkkuk ys x;sA mlds efudk Fkkuk ls pSuiqj Fkkuk yk;k x;kA pSuiqj Fkkuk esa gels iwNrkN fd;k x;kA iwNrkN djus ds ckn geyksxksa dks ?kj NksM+ fn;k x;kA 4- iqfyl ds }kjk gekjk O;ku U;k;ky; esa Hkh djk;k x;kA U;k;ky; esa geus Hkh O;ku fn;k gSA geus tks U;k;ky; es tks O;ku fn;k mlij ge nLr[kr fd;k gSA ;gh og gekjk O;ku gS tks U;k;ky; es fn;k FkkA blij gekjk gLrk{kj gSA gekjs O;ku ds gjsd iUus ij gekjk gLrk{kj gSA ge viuk gLrk{kj igpkurs gSA gekjs O;ku rhu iUuksa es gS lHkh iUuksa ij gekjk gLrk{kj gSA ge bls igpkurs gSaA bls Øe'k% 3] 3@1 ,oa 3@2 vafdr fd;k tkrk gSA xokg dB?kjs esa [kMa+s vfHk;qDr vfuy iky] fiUVq dqekj lksuha dks uke vkSj psgjs ls igpkurs gSA ,oa vfHk;qDr iIiw dqekj ikloku dks psgjs ls igpkurs gSA 5- esjs ?kj pUnuiqj ls vfEcdkiqj djhc lkS fdyks ehVj dh nwjh ij gSA geyksx pUnuiqj ls jkekuqt xat 15&20 es igqps FksA pUnuiqj vfEcdkiqj vkSj jkekuqt xat ds chp es gSA jkekuqt xat ls tgka ij geyksx dks idM+k x;k FkkA ogka ls jkekuqtxat fdruh nqj gS eS ugha dg ldrk gw¡A vijk/kdehZ 6&7 dh la[;k esa FksA eS
- 49 - Cr. Appeal (DB) No. 1278 of 2016 & Ors vfHk;qDrksa dks igys ls ugh tkurk FkkA ?kVuk ds fnu ds ckn ge vkt dksVZ esa gh ns[k jgs gSA ftl le; gesa cksysjks xkM+h esa cSBk;k x;k ml le; 'kke gks x;h FkhA taxy esa igqprs igqprs jkr gks x;h FkhA taxy es ges dgka mrkjk Fkk ml txg dk uke ge ugha crk ldrs gSA vfHk;qDrksa us vius eksckbZy Qksu gekjk lhe dkMZ yxkdj vius eksckbZy ls ckr djok;h FkhA gekjs lhe dk uEcj 9504699565 gSA og lhe dkMZ eqds'k dqekj ds uke ls FkkA tks esjs iksLV vkWfQl esa czkap iksLV ekLVj gSA ;g lhe dkMZ nqedk ls b';w gqvk Fkk
100. P.W.5 Ram Kumar Mehta @ Laddu is third victim, who has also narrated the same prosecution story. This witness has stated to have participated in the T.I. parade and to have identified accused Anil Pal and Pintu Soni therein. He identified all the three accused in the dock of the Court by their name and face. Relevant portion of testimony is quoted as under:
1- ?kVuk fnukad 13&2&15 dh gSA 'kke djhc 7 cts dh gSA esjs cguksbZ fd'kksj esgrk muds ppsjs HkkbZ lqfpr dqekj esgrk mudh cgu uhjk dqekjh vkSj csVh panuiqj ls vius dkj ls MkyVuxat okil vk jgs FksA geyksxksa us uhjk dqekjh dks jkekuqt xat esa muds ?kj ij NksM+ fn;sA mlds ckn ge rhuksa yksx viuh dkj ls jadk gksrs gq;s djlksa okyh jksM ls geyksx MkyVuxat okil vk jgs FksA djlks ls vkxs tc vk;s rks ,d csyksjksa esjh xkM+h dks FkEcgok taxy ds ikl vksHkjVsd fd;kA esjs cguksbZ fd'kksj dqekj ml cksysjks dks lkbZM ns fn;sA dqN gh nqj tkdj mDr cksysjks jksM ij frjNk [kM+k dj fn;kA tc geyksx ogka ij igqps rks esjs cguksbZ xkM+h dks jksd fn;sA 6&7 vkneh vius&vius gkFk esa fiLVy ysdj esjh xkM+h dks pkjks vksj ls ?ksj fy;kA ?ksjus ds ckn lqthr dks tcju mrkj vkSj mudks FkIiM+ ls ekjuk 'kq: dj fn;kA mlij eSa mrjk vkSj cksyk fd HkkbZ lkgc D;ksa ekj jgs gSA rks mlh es ls nks vkneh gekjs mij fiLVy lVk fn;kA vkSj cksyk fd cksysjks esa pqipki cSBks ugh rks xksyh ekj nsaxsaA mlij geyksx rhuksa Mj ls csyksjks ds fcpyk lhV ij cSB x;sA vkSj muyksx geyksxksa ds cxy esa cSSB x;k vkSj esjs ekFkk ij fiLVy j[kdj cksyk fd lj dks fups djks rks geyksx Mj ls rhuksa vkneh lj fups dj fy;sA cksysjks nks ;k rhu ?kaVk pykA geyksxksa dks irk ugha pyk fd os yksx geyksxksa dks dgka ys tk jgs gSA blds ckn taxy esa ys tkdj geyksxksa dks cksysjks ls mrkjk vkSj geyksx dks mrkj dj esjk gkFk fiNs dj cka/k fn;k vkSj taxy esa rkykc esa cka/k ds mij ys x;kA vkSj geyksxksa dks ckjh ckjh ls b/kj m/kj ys tkdj uke irk iqNus yxkA iqNus ds ckn geykxksa ds ikl ls tks Hkh iSlk eksckbZy Fkk ywV fy;k vkSj cksyk fd rqeyksxksa dks tku ls ekj nsaxsa rks geyksx jksus yxs vkSj cksys fd geyksx dksbZ xyrh ugh fd;k gS vkiyksx er ekfj;sA blij os yksx fd Bhd ugh rqe yksxks dks ugha ekjsaxsaA vxj rqeyksx 15 yk[k :i;k vxj rhuksa vkneh fnyokvkaxs
- 50 - Cr. Appeal (DB) No. 1278 of 2016 & Ors rks ugh ekjsaxsAa bl ij geyksx cksys fd 15 yk[k :i;k fnyok;saxAsa 2- os rkykc ls vkSj nqj taxy esa ys tkdj geyksxksa dks j[kkA vkSj vkil es os yksx viuk uke fiUVq lksuh] vfuy iky] Hkksyk flag] fiUVq flag] ikjl flag] yo flag cksyrk FkkA geyksxksa dks jkr Hkj j[kus ds ckn fnukad 14&2&15 dks lqcg djhc 8&9 cts ds vklikl fiUVq flag vkSj Hkksyk flag gekjs cguksbZ fd'kksj dqekj esgrk ls cksys fd vius eksckbZy ls esjh cgu ls ckr djok;s vkSj cqyok;s fd cksfy;s geyksxksa dk vigj.k gks pqdk gSA vxj 15 yk[k :i;k rqeyksx O;oLFkk djok djds ykoksxs rks geyksx dk tku cpsxk vU;Fkk tku ls ekj nsxkA bl ij esjh cgu cksyh fd O;oLFkk djds nsaxAas ysfdu tku ls er ekfj;sxkA bl ij vijk/kdehZ yksx cksyk fd Bhd gS ykvksaA ml fnu eksckbZy ls dbZ ckj ckr gq;hA fnukad 15&2&15 dks tc ckr gq;h rks gekjh us dgk fd 10 yk[k :i;k dk O;oLFkk gqvk gSA bl ij fiUVq lksuh vkSj Hkksyk flag cksys fd tc rd 15 yk[k ugh ykvksxs rcrd ugh NksM+sxsAa iqu% fnukad 15&2&15 dks tc iqfyl utnhd vk;k rks fiUVq lksuh vkSj muds lkFk ftrus Hkh vkneh Fks fnu ds 3 cts ds vklikl os yksx cksyk fd mxzoknh vk x;k gSA bl ij fiUVq lksuh gekjs fiLVy lVkdj nkSM+kus yxk rhuksa vkneh dksA dqN gh nqj tkus ds ckn tc iqfyl us gYYkk fd;k fd geyksx iqfyl okys gSa rks geyksx iqfyl ds ikl pys x;s vkSj iqfyl geyksxksa dks vius xkM+h ls efudk Fkkuk ys x;hA vkSj iqNrkN fd;s vkSj mlds ckn pSuiqj Fkkuk geyksxksa dks yk;k x;kA vkSj iwNrkN dj vius ?kj okil NksM+ fn;k x;kA 3- fiUVq lksuh] vfuy iky vkSj iIiw ikloku dks psgjk ls ge igpkurs gSa iqfyl us U;k;ky; es /kkjk 164 n0iz0la0 ds vUrxZr gekjk O;ku djok;k FkkA geus /kkjk 164 n0iz0la0 okys O;ku ij gLrk{kj fd;k Fkk ;k ugh ;kn ugh gSA iqu% dgrs gS fd geus vius /kkjk 164 na0iz0la0 okys O;ku ij gLrk{kj fd;k FkkA ;gh oks /kkjk 164 n0iz0la0 ds vUrxZr O;ku gS ftlds nks i`"Bksa ij esjk gLrk{kj gSA eS viuk gLrk{kj igpkurk gw¡A bUgsa Øe'k% izn'kZ 4 ,oa 4@1 vafdr fd;k tkrk gSA
101. P.W. 6, Lilawati Devi, wife of P.W. 3, on whose mobile the demand of ransom was made and threatening was given that in case of non-payment of ransom the victims will be killed. This witness has stated that the victims narrated the names of Pintu Soni, Anil Pal, Lav Singh and Bhola Singh as their abductors.
102. P.W. 2, Janeshwar Mahto is the informant of the case, who corroborates the version of prosecution and has deposed that stated that at about 3.00 p.m. a phone call
- 51 - Cr. Appeal (DB) No. 1278 of 2016 & Ors was made to Narendra to arrange Rs.15,00,000/- and similar call was also made to Chhotu Babu. This witness has stated that they sought time from the abductors, but after 5.00 p.m. no call was received from the abductors and then they informed the Chainpur Police by filing a written report, which was written by Bablu over which he put his signature.
103. Sanjay Kumar Malwiya is the I.O. of the case. This witness has stated tht he informed that the technical section of the S.P. Palamau through mobile to locate the tower location of mobile phone no. 9504699565, which was mentioned in the F.I.R. from where the location of the said mobile was reported to be Manika in Latehar. He has stated that on confidential information he arrested accused Anil Pal from his in-laws‟ at village-Bari on chase, who admitted his involvement in this case and named his accomplices namely Bhola Singh, Pintu Soni, Lav Singh, Pintu Singh, Paras Singh, etc. This witness has stated that on the pointing out by accused Anil Pal he went to Keri Mahua Forest along with the said accused and the Officer- in- charge, Manika P.S. and when they went inside the forest two persons, whose names were disclosed by accused Anil Pal as Pintu Soni and Lav Singh, but seeing the police party they started fleeing and taking advantage of the dense forest managed to escape.
- 52 - Cr. Appeal (DB) No. 1278 of 2016 & Ors
104. P.W.9 is Deodas Bhandari is a formal witness. One of the mobile set bears names of Pintu Soni, while the another is in the name of Pappu Paswan. Both the mobile sets were marked as materials Ext. I and II.
105. Learned counsel for the appellant has also taken the ground of non-applicability of section 34 IPC but we are of the view that question of non-applicability of Section 34 will only come if there is no common intention to commit commission of crime even if there is no active involvement of the concerned accused person, rather common intention is to be inferred from the facts and circumstances of the case.
106. Further, it is pertinent to mention here that the prosecution has alleged the offence under section 364A IPC 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.
107. 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
- 53 - Cr. Appeal (DB) No. 1278 of 2016 & Ors 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.
108. 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:-
"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."
109. 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:-
- 54 - Cr. Appeal (DB) No. 1278 of 2016 & Ors "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 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."
- 55 - Cr. Appeal (DB) No. 1278 of 2016 & Ors
110. 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.
111. 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.
112. 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.
113. 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
- 56 - Cr. Appeal (DB) No. 1278 of 2016 & Ors purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture.
114. 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...."
115. Herein in the instant case and as per the law settled as referred hereinabove the case of prosecution so far as criminality of appellants-Anil Pal and Pintu Soni @ Pintu Kumar Soni are concerned is not required to be based upon by taking aid of Section 34 rather the testimony of P.W. 3, 4, 5, 6, 7 and 8 are very specific disclosing of direct
- 57 - Cr. Appeal (DB) No. 1278 of 2016 & Ors involvement of these two appellants in commission of alleged crime.
116. Hence, the question of applicability or attracting the ingredient of Section 34 is even immaterial in the facts and circumstances of the case so far as conviction of appellants-Anil Pal and Pintu Soni @ Pintu Kumar Soni are concerned since there is direct evidence of kidnapping for the demand of ransom as per the testimony of witnesses, as referred hereinabove.
117. The ground has been taken by the learned counsel for the appellants that the TIP has been conducted after delay as such the entire prosecution version will be vitiated and in order to strengthen the argument, he has relied upon the judgment rendered in the case of State of U.P. v. Wasif Haider, (2019) 2 SCC 303.
118. However, it is equally settled that TIP is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant. The evidence of a TIP is admissible under Section 9 of the Evidence Act. However, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court of law at the time of trial. Reference in this regard may be taken from judgment as rendered by the Hon‟ble Apex
- 58 - Cr. Appeal (DB) No. 1278 of 2016 & Ors Court in State of H.P. v. Lekh Raj (2000) 1 SCC 247, and C. Muniappan v. State of T.N. (2010) 9 SCC 567.
119. Further, the Hon‟ble Apex Court has observed in the case of Rajesh Govind Jagesha v. State of Maharashtra (1999) 8 SCC 428 that the the case also rests on its own facts, and mere delay in holding the test identification parade was not the sole reason for rejecting the identification.
120. Herein, although the TIP has been conducted after lapse of some days but the appellant has not put any question in the cross-examination as how the same has caused prejudice to them. Furthermore, herein the conviction is not based solely upon the TIP rather conviction is based upon the deposition of P.W. 3, 4 and 5, who had been kept in confinement by the accused persons including these two appellants, namely, Anil Pal and Pintu Soni @ Pintu Kumar Soni fairly for a period of 2-3 days. Therefore, in view of specific deposition of these witnesses (P.W. 3,4, and 5) coupled with the testimony of P.W. 6, 7 and 8, the conducting TIP after some delay cannot be said to have caused any prejudice to the appellants- Anil Pal and Pintu Soni @ Pintu Kumar Soni since TIP is only to corroborate the issue of identification.
121. Further it has also come in the testimony of I.O. and the victim, P.W. 3, 4 and 5 that these two accused persons,
- 59 - Cr. Appeal (DB) No. 1278 of 2016 & Ors namely, Anil Pal and Pintu Soni @ Pintu Kumar Soni have been put on TIP along with twenty other persons, in which the appellants, namely, Anil Pal and Pintu Soni @ Pintu Kumar Soni have been identified coupled with the fact that they have also been identified in the Court in course of trial.
122. In the aforesaid factual aspect, this Court deems it fit and proper to again go across the penal provision as under
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.
123. 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.
124. From perusal of the testimony of the witnesses it is evident that all the witnesses univocally have deposed that
- 60 - Cr. Appeal (DB) No. 1278 of 2016 & Ors the victims (P.W.3,4 and 5) were kidnapped while they were returning from Chandanpur. Further P.W.6 had specifically deposed that she had received the call of ransom on her mobile which was made by the mobile number of her husband wherein her husband had taken the name of the present appellant namely Anil and Pintu. Further this fact has also been substantiated by the investigating officer. Therefore, the ingredients of section 364A is fully attracted and all the condition of the afotresaid section as discussed in the preceding paeragaraph is fully meet out.
125. This Court therefore is of the view that prosecution has been able to prove the charge beyond all reasonable doubt so far it relates to the appellant namely, Anil Pal of Cr. Appeal (DB) No. 1278 of 2016 and appellant, namely, Pintu Soni @ Pintu Kumar Soni is concerned, which has properly been considered by learned trial Court while convicting them. Hence the judgment of conviction and sentence so far as appellants, namely, Anil Pal and Pintu Soni @ Pintu Kumar Soni are concerned needs no interference.
Conclusion:
126. In the result, the Cr. Appeal (DB) No 1278 of 2016 and Cr. Appeal (DB) No.883 of 2016, so far it relates to
- 61 - Cr. Appeal (DB) No. 1278 of 2016 & Ors appellant, Anil Pal and Pintu Soni @ Pintu Kumar Soni are concerned, are hereby dismissed.
127. So far appellant-Pappu Paswan is concerned, from the testimony of the witnesses, as discussed above, it appears that solely based on the fact that he was driving the vehicle his name has transpired in commission of crime but admittedly none of the witnesses has ever named that appellant-Pappu Paswan was driving the said vehicle.
128. Furthermore, none of the victims, who have been examined as P.W. 3, 4, and 5, during examination-in-chief has uttered the name of this appellant. So far identification of this appellant-Pappu Paswan is concerned, P.W. 3 failed to identify the appellant during trial in dock also.
129. The complicity of appellant-Pappu Paswan has further been made on the basis of seizure of mobile but admittedly the prosecution has failed to bring on record the evidence that his mobile was used for demanding ransom or used in alleged commission of crime.
130. Further, the Investigating Officer has stated in his testimony that on the basis of the confessional statement of accused Anil Pal, the Bolero vehicle no. JH-10B-1459 used in the occurrence was seized lying in front of the house of Balram Sao. On the identification of this witness, the said seizure list was marked as Ext.7, copy of which
- 62 - Cr. Appeal (DB) No. 1278 of 2016 & Ors was made over to the driver of the said vehicle namely Pappu Paswan, who was arrested and brought to the police station, who also rendered his confessional statement and admitted his involvement in the occurrence.
131. On the statement of this witness, the confessional statement of accused Pappu Paswan was marked as Ext.8. This witness has stated that from the possession of accused Pappu Paswan a mobile phone was recovered which was seized by preparing a seizure list.
132. If the vehicle would have been recovered from the disclosure statement of the appellant Pappu Paswan then the matter would have been different and in that eventuality Section 27 of the evidence Act would have been attracted, which provides that if on the basis of conviction and recovery is there then the exception provision as contained under Section 27 of the Evidence Act will be applicable. But herein admittedly as per testimony recorded at paragraph 8 vehicle was not recovered on the confession made by the appellant-Pappu Paswan rather after vehicle having been recovered on the disclosure made by Anil Pal seizure memo has been served to the appellant- Pappu Paswan. Thereafter he was taken into custody then his confession was recorded.
133. But the question remains that merely on the basis of confessional statement can an accused be convicted?
- 63 - Cr. Appeal (DB) No. 1278 of 2016 & Ors
134. It is settled position of law that there cannot be any conviction on the basis of confession of co-accused person even though on his disclosure, if any incriminating material or material used in the commission of crime has been recovered on the basis of settled position of law the confessional statement of co-accused person even leading to recovery cannot be basis of conviction to other accused person.
135. Further, the Hon'ble Supreme Court in the case of Surinder Kumar Khanna vs. Intelligence Officer, Directorate of Revenue Intelligence reported in 2018 (8) SCC 271, has held that the conviction on the basis of confession of the co-accused is not permissible. Relevant Pragraph of the aforesaid judgment is being quoted herein under:
"14.In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges leveled against him. We, therefore, accept this appeal, set aside the orders of conviction and sentence For example: State vs. Nalini, (1999) 5 SCC 253, paras 424 and 704 and acquit the appellant. The appellant shall be released forthwith unless his custody is required in connection with any other offence."
136. Similarly, in Kashmira Singh Vs. The state of Madhya Pradesh referring to the judgment of the Privy Council in Bhuboni Sahu Vs. the King and observations
- 64 - Cr. Appeal (DB) No. 1278 of 2016 & Ors of Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chukerbutty the hon‟ble Apex court observed that proper way to approach a case involving confession of a co- accused is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then it is not necessary to call the confession in aid.
137. This Court in view of aforesaid discussion and taking into consideration the settled position of law that the prosecution has to prove the charge beyond all reasonable doubt, is of the view so far appellant-Pappu Paswan is concerned that prosecution has not been able to prove the charge said to be beyond reasonable doubt rather the conviction is based upon conjecture and surmises, which is contrary to the settled position of law since there cannot be any conviction on the principle of conjecture and surmises, as has been held by Hon‟ble Apex Court in the case of Rang Bahadur Singh and Ors. v. State of U.P., (supra).
138. This Court, therefore, is of the view that the prosecution has not been able to prove the charge against the appellant namely, Pappu Paswan @ Pappu Kumar Paswan (in Cr. Appeal (DB) No. 867 of 2016) beyond all
- 65 - Cr. Appeal (DB) No. 1278 of 2016 & Ors reasonable doubt. Hence the judgment of conviction and sentence so far as appellant-Pappu Paswan in Cr. Appeal (DB) No. 867 of 2016 is concerned needs interference. Conslusion:
139. Accordingly, the judgment of conviction and order of sentence so far as appellant-Pappu Paswan @ Pappu Kumar Paswan is concerned, is hereby quashed and set aside.
140. In consequence thereof, Cr. Appeal (DB) No. 867 of 2016 stands allowed and the appellant-Pappu Paswan @ Pappu Kumar Paswan is acquitted from his criminal liability and directed to be released forthwith from judicial custody in connection with S.T. No.214 of 2015, if not required in any other cases.
141. Pending Interlocutory Applications, if any, stand disposed of.
I Agree (Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) (Pradeep Kumar Srivastava, J.) Jharkhand High Court, Ranchi Dated: Ranchi 05/03/2024 Alankar / A.F.R.