Gauhati High Court
Karuna Deka vs State Of Assam And Anr on 26 June, 2020
Equivalent citations: AIRONLINE 2020 GAU 224
Author: Manish Choudhury
Bench: Manash Ranjan Pathak, Manish Choudhury
Page No.# 1/17
GAHC010251312014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 261/2014
1:KARUNA DEKA
S/O LATE JITRAM DEKA, VILL. BALISATRA, P.S. KAYA, DIST. KAMRUP,
ASSAM.
VERSUS
1:STATE OF ASSAM and ANR.
THROUGH THE PUBLIC PROSECUTOR, GAUHATI HIGH COURT
2:PLABAN DAS
S/O SHRI NARAYAN DAS
R/O G.N.B. ROAD
AMBARI
GUWAHATI
P.O. AMBARI
P.S. LATASIL
DIST. KAMRUP
ASSAM
Advocate for the Petitioner : MR.G K THAKURIA
Advocate for the Respondent : MR.R SHARMA
Page No.# 2/17 BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK HON'BLE MR. JUSTICE MANISH CHOUDHURY Date of Hearing : 25.02.2019, 19.06.2020 Date of Judgment : 26.06.2020 JUDGMENT AND ORDER (CAV) (Manish Choudhury, J.) The instant appeal under section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C. in short) is preferred by the accused-appellant Shri Karuna Deka against the judgment and order dated 02.07.2014 passed by the learned Additional Sessions Judge No.1, Kamrup (Metro), Guwahati in Sessions Case No. 226(K)/2012, arising out of G.R. Case No. 1794/1999, corresponding to Latasil Police Station Case No. 43/1999, whereby he has been convicted under section 364A of the Indian Penal Code (IPC, in short) and sentenced to undergo Rigorous Imprisonment for Life and to pay a fine of Rs. 1,000/- (Rupees one thousand) only, in default, to undergo Simple Imprisonment for 1 (one) month.
2. A narration of the prosecution case, in brief, is necessary before proceeding further. It was on 04.04.1999, one Plaban Das, son of Shri Narayan Das, resident of G.N.B. Road, Ambari, Guwahati lodged a First Information Report (FIR, in short) before the Officer In- Charge of Latasil Police Station, Guwahati stating, inter alia, that on 04.04.1999 at about 7-30 a.m., his servant, Karuna Kanta Deka i.e. accused-appellant had taken his son, Master Sona, aged about 2½ years, to the road near AGP Office, Ambari for usual morning round. The informant mentioned that at about 8-30 a.m., someone telephoned him informing that his son was with them and they had also kept the accused-appellant blind folded by tying his hands and feet. But till the time of lodging of the FIR both the servant i.e. the accused-appellant and his son had not returned and could not be traced. The said FIR was stated to have been received at the Police Station at about 2-45 pm on 04.04.1999.
3. On receipt of the aforesaid FIR, the Officer In-Charge, Latasil Police Station registered a case being Latasil Police Station Case No. 43/1999 under section 363, IPC and the Officer Page No.# 3/17 In-Charge, Latasil Police Station himself took up the investigation of the case. A corresponding G.R. case being G.R. Case No. 1794/1999 was also registered.
4. It transpires that during the course of investigation, the police had found the kidnapped boy from a locality of Sarthebari and the boy was rescued on 06.04.1999. During the operation carried out by the police personnel to rescue the boy, the accused-appellant was found with the kidnapped boy and on 06.04.1999 police apprehended him along with one Umesh Medhi. In the course of investigation of the case, the police also found the involvement of 3 (three) other persons, namely, Amal Haloi, Jagannath Talukdar and Ranjit Baishya and they were arrested in the case. But later on, they were released on bail. The Investigating Officer (I.O., in short) of the case also got the statements of the witnesses recorded under section 161, Cr.P.C. After completing the investigation and finding prima facie materials against the accused persons, the concerned I.O. submitted the charge-sheet in said Latasil Police Station Case No. 43/1999 under section 173 Cr.P.C. on 28.02.2001 vide No. 07/2001 against 5 (five) of the accused persons, namely, (i) Umesh Medhi, (ii) Amal Haloi,
(iii) Jagannath Talukdar, (iv) Ranjit Baishya and (v) Karuna Deka, the accused-appellant under section 363/364A IPC.
5. On appearance of the 3 (three) accused persons viz. (i) the present accused appellant, (ii) Amal Haloi and (iii) Umesh Medhi before the Court of Sub-divisional Judicial Magistrate (S) No. 1, Kamrup, Guwahati on 24.04.2012, the copies under Sections 207, Cr.P.C. were furnished to them. As the offence under Section 364A, IPC is exclusively triable by the Court of Sessions, the said Magistrate by order dated 24.04.2012 passed under Section 209 Cr.P.C. committed the concerned G.R. Case No. 1794/1999 to the Court of learned Sessions Judge, Kamrup, Guwahati and also transmitted its record. The other two accused persons, namely, Jagannath Talukdar and Ranjit Baishya were declared as proclaimed offenders in the case as they absconded and were not found inspite of orders of Proclamation and Attachment against them.
6. After receipt of the case record of G.R. Case No. 1794/1999 on transfer pursuant to commitment, it was registered as Sessions Case No. 226(K)/2012 in the Court of learned Sessions Judge, Kamrup, Guwahati and by order dated 16.06.2012 learned Sessions Judge, Kamrup, Guwahati transferred the same to the Court of learned Assistant Sessions Judge No. Page No.# 4/17 3, Kamrup Guwahati for disposal. As Section 364A IPC provides punishment upto death or life sentence and since Assistant Sessions Judge No.3, Kamrup Guwahati did not have the jurisdiction to punish under said Section, the Sessions Judge, Kamrup, Guwahati by order dated 12.09.2012 withdrawn the said Sessions Case No. 226(K)/2012 from the Court of learned Assistant Sessions Judge No. 3, Kamrup Guwahati to his file and on 12.09.2012 itself by an order transferred the same to the Court of learned Additional Sessions Judge No. 1, Kamrup, Guwahati for disposal.
7. Upon hearing the learned Public Prosecutor and the learned defence counsel on the point of charge and on perusal of the case records, the learned Additional Sessions Judge No. 1, Kamrup, Guwahati by order dated 10.01.2013 framed charge under Section 364A/34 IPC against the afore-mentioned 3 (three) accused persons, including the present appellant, which were read over and explained to them, to which they pleaded not guilty and claimed to be tried.
8. During the course of trial, from the side of the prosecution 3 (three) witnesses were examined, (i) PW.1- Plaban Das, father of the kidnapped boy, (ii), PW.2- Monalisa Das, the mother of the kidnapped boy and the wife of PW.1, and (iii) PW.3- Someswar Dutta, the then Officer-in-Charge of Latasil Police Station and the I.O. of the case. The prosecution also exhibited 3 (three) numbers of documents, Exihibit-1 -- FIR, Exihibit-2 -- Seizure List and Exihibit-3 -- Charge-Sheet. A purse and piece of paper allegedly seized from the possession of the accused, Umesh Medhi was also exhibited as Material Exhibit-1. The defence did not adduce any evidence. The accused persons during their examinations under Section 313 Cr.P.C. denied the prosecution case as false and claimed innocence. Having found the charge framed under Section 364A, IPC proved against the accused Karuna Deka, present appellant, learned Trial Court by the impugned judgment and order dated 02.07.2014 convicted him accordingly and passed the sentence of rigorous imprisonment for life and to pay a fine of Rs. 1,000/- (Rupees one thousand) only, in default, to undergo simple imprisonment for one month. However, the learned Trial Court by the said judgment dated 02.07.2014 has, held that the prosecution had failed to bring home the charge under Section 364A/34, IPC against the other 2 (two) accused persons, Amal Haloi and Umesh Medhi and therefore, they were acquitted. Aggrieved by the said judgment and order of conviction and sentence dated Page No.# 5/17 02.07.2014, the accused Karuna Deka has preferred the instant appeal.
9. We have heard Ms. Niva Sarma Thakuria, learned counsel for the accused appellant and Ms. Shamima Jahan, learned Additional Public Prosecutor, Assam for the State. We have also heard Mr. Rupam Sharma, learned counsel for the respondent No. 2-informant.
10. In support of the appeal, Ms. Thakuria, learned counsel for the accused-appellant from the evidence of all the 3 (three) prosecution witnesses, has submitted that the evidence led by the prosecution was not sufficient to hold the accused-appellant guilty as the ingredients of kidnapping for ransom were not established against him. She submitted that even the accused-appellant was also abducted along with the kidnapped boy and that he was not only wrongly apprehended, but also erroneously implicated by the police by laying the Charge-Sheet against him. Ms. Thakuria also submitted that without appreciating the evidence in the correct perspective, the learned Trial Court has convicted the accused- appellant on deficient evidence. She further submitted that on the failure of the investigating authorities to identify the actual culprit, the accused-appellant was made a scapegoat in the case, wrongly holding him to be the perpetrator of the crime. Because of such defective investigation of the case, Ms. Thakuria, submitted that the impugned judgment of conviction and sentence dated 02.07.2014 passed by the learned Trial Court suffers from several infirmities and therefore, the present appeal should be allowed, acquitting the accused appellant in the case.
11. Ms. Jahan, learned Addl. Public Prosecutor, Assam for the State submits that the evidence led by the prosecution side is sufficient to hold the accused-appellant guilty of the charge of kidnapping the minor victim for ransom, as defined under Section 364A, IPC. She submitted that as the police personnel at the time of recovering the kidnapped boy found the accused-appellant with him and for that reason, no other hypothesis is possible to be drawn in favour of the accused appellant and thus the learned Trial Court, after proper appreciation of the evidence on record, has rightly found the accused-appellant guilty of the charge under Section 364A, IPC. In such view of the matter, Ms. Jahan therefore, submitted that the impugned judgment and order of the learned Trial Court dated 02.07.2014 does not call for any interference and that the present appeal being bereft of merits, is liable to be rejected. Mr. Rupam Sharma, learned counsel for the respondent No. 2-informant, supporting the Page No.# 6/17 argument of learned Additional Public Prosecutor Ms. Jahan, submitted that the impugned judgment and order of the learned Trial Court dated 02.07.2014 does not call for any interference.
12. We have considered the submissions advanced by the learned counsels for the parties and also perused the records. In order to appreciate the submissions of the parties, it is necessary to examine and scrutinise the evidence brought on record.
13. PW.1, Plaban Das, during his examination-in-chief deposed that he knew the accused- appellant but he did not know the other two accused persons. He stated that towards the end of 1990 the accused appellant was employed as a servant in his house and at the time of the incident, his son, Sona was 2½ years old. The accused-appellant used to take his son for a walk in the morning and they used to return home around 8-30 am. But on the day of the incident, it was late and while they were making search, he did receive a phone call whereby the caller told that they had kept his son along with the accused-appellant and a search should not be made for the son nor the police should be informed. However, the caller did not disclose his identity. The family, nevertheless, informed the police. Thereafter, the alleged kidnappers continuously made phone calls to the family and demanded an amount of Rs. 10 Lakhs for the release of his son. Then, he went to the Police Station and lodged an FIR (Ext.-
1). The police, thereafter, came to the house and fitted machine to their landline telephone and recorded the phone calls. Thereafter, the police negotiated with the alleged kidnappers and the kidnappers called them for bringing the money. The kidnappers told that they had kept his son at a place in Sarthebari. It was the father of PW.1 who went with the police to recover his son. When the kidnappers came to take the money, the police gave them a briefcase and rescued his son first. Thereafter, pretending to shake hands with the alleged kidnappers, the police apprehended all the kidnappers. Around 3-00 am, the police came back to their house and handed over his son to him. His son was rescued 3 (three) days after his missing. He deposed that police went in civil dresses and on the previous day, a team of police personnel took position in the vicinity of the place of occurrence. He mentioned that the village wherefrom the police rescued his son was Helocha, near Sarthebari.
14. In his cross-examination made on behalf of the accused-appellant, said PW.1 stated Page No.# 7/17 that the accused-appellant worked in his house for about 2 (two) years and during that period, he often used to take his son for a walk in the morning and that PW.1 did not find anything suspicious in the behavior of the accused-appellant. PW.1 also stated that the kidnappers, in their phone calls, told him that the accused-appellant and his son were with them. But PW.1 denied that the kidnappers also abducted the accused-appellant while kidnapping his son and stated that he told the police that when he received a phone call at 8- 30 a.m. the kidnappers told him that they had kept the accused-appellant by tying his hands, feet and eyes. PW.1 denied non-involvement of the accused-appellant in kidnapping his son. Though he testified that PW.1 did not see wherefrom his son was rescued, but he stated that the police told him the names of the three boys. The cross-examination of PW.1 was, however, declined on behalf of the other two accused persons.
15. PW.2, Monalisa Das is the wife of PW.1 and the mother of the kidnapped boy. She deposed that she knew the accused-appellant but she did not know the other two accused persons. Her son, Sona was found missing from their house on 04.04.1999. The accused- appellant came to her house as a helper when her son was about eight months old. At the time of occurrence, her son was 2½ years old. The accused-appellant used to take her son for a walk always in the morning and on the day of occurrence also, the accused-appellant took her son in the morning for a walk. When he did not return till 8-00/8-30 a.m. they made a search in the house of the neighbors. Around 9-00/9-15 a.m., somebody called them in the landline phone and told that they had picked up her son. The caller ended the call without disclosing his identity. By making another call at 12-00 noon, the caller restrained them from informing the matter to the police and giving the news to the media. Thereafter, her husband (PW.1) lodged an FIR at the Latasil Police Station. Then the police came to the house and inquired from them. The police waited for some time in their house expecting another call. It was in the night another phone call came and the unknown caller demanded Rs. 10 Lakhs in return of her son. Her husband requested alleged kidnappers to take less money saying that he did not have such amount of money and upon such request; the kidnappers demanded Rs. 7 Lakhs over phone and police heard that conversation. When her husband asked about the place where the money was to be delivered he was told to go near Queen's Club in Sarthebari. The kidnappers asked them over phone to take their blue colour van and their old Page No.# 8/17 driver. Accordingly, her father-in-law and the Deputy Superintendent of Police, Mr. J. C. Barman went to the place in the van. Said Mr. Barman drove the van and their driver sat in the front seat and in the evening hours of the day, they reached Sarthebari. After sometime, a boy in a black car came near to the van and told them to follow his car. At one place, by stopping the van, the boys took the key. PW.2 further stated that disguising themselves as laborers of earth carrying truck, police personnel were already keeping vigil in the entire area since the previous day itself when the police got the information in the previous day that the minor boy was kept in that area. Receiving information the police searched the house where her son was kept and on seeing the police personnel, seven boys fled away from the house. She also stated that one of those boys was taken to Queen's Club, Sarthebari by some other youth and when he was beaten, the boy disclosed the entire facts. The accused- appellant was seen running from the embankment taking her son in his arms. When her driver flashed the torch he as well, saw the accused appellant and her father-in-law took her son in his lap. Almost all the boys were apprehended by the police. PW.2 mentioned that it was in the early morning hours on the next day she came to know that her son had been rescued and later on the police personnel of Latasil Police Station handed over her son.
16. In her cross-examination, PW.2 had testified that during the period of about two years as servant, the gesture and posture of the accused-appellant was good. It was around 9-00 am on the day of occurrence the first call from the unknown caller was received. She denied that she did not tell the police about demand of Rs. 10 Lakhs over telephone. Her statement was recorded on the date of occurrence itself. She disclosed that she did not go to Sarthebari wherefrom her son was rescued. She heard what had happened in Sarthebari from Mr. J. C. Barman and from her father-in-law. She did not see wherefrom and from whom her son was rescued. The name of her driver was Bahadur who had expired in the meantime. She denied that the kidnappers while kidnapping of her son also abducted the accused appellant with him. She also denied about non-involvement of the accused-appellant in the kidnapping of her son.
17. PW.3, Someswar Dutta was the Investigating Officer (I.O.) of the case. He deposed that on 04.04.1999, he was serving as the Officer-in-Charge of Latasil Police Station. At about 9-30 am on 04.04.1999, PW.1 verbally informed the Police Station that the accused-
Page No.# 9/17 appellant, who was his servant, had taken his 2½ years old son for a morning walk but did not return till that time. On receipt of the said information, Latasil Police Station General Diary Entry No. 125 dated 04.04.1999 was made and thereafter, he took steps to rescue the little boy. After enquiring from the witnesses, he sent information to all the Police Stations through Police Control Room regarding the incident. At about 2-45 p.m. on that day, PW.1 lodged the FIR (Ext.-1) and a case was registered in respect of which he took charge of the investigation. At 10-00 p.m. on 06.04.1999, he rescued the son of the informant from the custody of the accused-appellant at Sarthebari cross-roads. Mr. Narayan Das, the grandfather identified the boy. Another person, Umesh Medhi, who was found with the accused-appellant, was also arrested by him. A piece of paper, where phone number of the informant's house was written was seized from the possession of the other accused, Umesh Medhi vide Ext.-2. Thereafter, the boy was taken to Guwahati and was handed over. The Seized paper with a purse of Mr. Umesh Medhi being M.R. No. 30/2000 (M.Ext.-1) was kept in the malkhana of Latasil Police Station. It was on interrogation of the accused-appellant and Mr. Umesh Medhi, he came to know that Amal Haloi, Jagannath Talukdar and Ranjit Baishya were also involved in the incident and accordingly, they were arrested by him in connection with the case. On completion of the investigation, he submitted the charge-sheet against the aforesaid five accused persons under section 363/364A vide Ext.-3.
18. In his cross-examination on behalf of the accused persons, Amal Haloi and Umesh Medhi, PW.3 had deposed that he apprehended the accused-appellant and Umesh Medhi when they were walking on the road. He denied that at 10-00 p.m. on 06.04.1999, Umesh Medhi was not with the accused-appellant. As regards Material Ext.-1, he told that the same was not kept sealed and there was no proof that it belonged to the accused, Umesh Medhi. He did not collect any proof that the telephone numbers written on the piece of paper were the telephone numbers of the informant. He stated that the accused, Amal Haloi was arrested on 07.04.1999 and denied that the accused persons, Amal Haloi and Umesh Medhi were not involved in the case.
19. During the cross-examination on behalf of the accused-appellant, PW.3 deposed that he did not draw any sketch-map of the place in Sarthebari wherefrom the boy was rescued by him. He did not record any statement of persons from the place wherefrom he had rescued Page No.# 10/17 the boy. To rescue the boy, he took the help of police personnel from Sarthebari Police Station. He further stated that PW.2, Monalisa Das did not tell him that the kidnappers had demanded Rs. 10 Lakhs from them. He denied that the kidnappers while kidnapping the son of the informant also abducted the accused-appellant. He also denied that getting the chance, the accused appellant escaped from the clutches of the kidnappers along with the boy and appeared before the police. He stated that the accused appellant kept the boy at Ranakuchi from 04.04.1999 to 06.04.1999 and on 06.04.1999; he was arrested when he came out to the road.
20. Before proceeding to analyze the evidence afore-mentioned, it is necessary to find out the ingredients of the offence defined in Section 364A, IPC. For ready reference, Section 364A, IPC is quoted here under:
364A. 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.
21. To bring home the guilt of the accused under Section 364A, IPC it is to be proved that there was kidnapping and there was reasonable apprehension that such person made to be put to death or hurt if ransom money is not paid. An offence under Section 364A, IPC cannot be equated with an offence of kidnapping or abduction. In order to commit the offence under Section 364A IPC something more is required. To attract the provisions of Section 364A it is required to be proved that - (i) the accused kidnapped or abducted the person; (ii) the accused, after such kidnapping or abduction kept the kidnapped/abducted person under detention; (iii) the kidnapping or abduction was for ransom and (iv) a threat to the kidnapped or abducted that if the demand for ransom is not met then the victim is likely to be put to death.
22. Situated thus, if the testimonies of PWs. 1 and 2 are perused what we found is that a part of the testimonies of these two witnesses are not first-hand knowledge. These two prosecution witnesses had deposed that neither of them had accompanied the police to rescue their child nor any of them had gone to Sarthebari. As per the testimonies of PW.1, it Page No.# 11/17 was his father, Narayan Das who accompanied the Deputy Superintendent of Police, J. C. Barman to Sarthebari to rescue the boy. In the similar line PW.2 deposed that her father-in- law, Narayan Das had accompanied the Deputy Superintendent of Police, Mr. J. C. Barman along with their driver, one Bahadur to Sarthebari to find out the child after the kidnappers had informed them that the child was in Sarthebari. What we found is that both the PWs.. 1 and 2 deposed about the manner how the police personnel had succeeded in rescuing their son from the custody of the kidnappers and that they did not go to Sarthebari with the police personnel to rescue their child. It is, thus, apparent that what they had deposed as regards the happenings in Sarthebari were after hearing about it from the person who appeared to have been either Narayan Das or J.C. Barman. It is, thus, clearly established that whatever they had deposed as regards what had happened in Sarthebari and how the boy was found out there are only hearsay in nature. Conspicuously, the I.O. in the charge-sheet (Ext.3) neither cited Narayan Das nor J. C. Barman as witness to the case. As per the testimony of PWs. 1 and 2, it is Narayan Das and J. C. Barman who could have given a first-hand account as an eye-witness as to what had happened in Sarthebari, as to whether it happened in Sarthebari or any other place and as to how the child was found out and rescued. We have also perused the case diary available in the case records and found that during the investigation of the case, statements of said Narayan Das, J.C. Barman and the old driver of PWs. 1 and 2, Bahadur were not even recorded under Section 161 Cr.P.C. In her cross examination by the defence, PW.2, however stated that their said driver, Bahadur, in the meanwhile, had expired.
23. We have also noticed that even during the course of the trial, the prosecution could have called said Narayan Das and J.C. Barman as its witnesses, but the same was not done. Thus, in the instant case, the prosecution failed to examine two of the vital witnesses and the prosecution did not assign any reason for their non-examination.
24. It is the rule of evidence that hearsay evidence is inadmissible. Assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. One of the reasons why hearsay evidence is not received as relevant evidence is truth is diluted with each repetition as the same is based on information received from others. The prosecution is duty-bound to produce the best evidence. In Kalyan Page No.# 12/17 Kumar Gogoi Vs. Ashutosh Agnihotri and Another, reported in (2011) 2 SCC 532, the Hon'ble Supreme Court have elucidated the reasons why the hearsay evidence is not to be accepted as under:-
''34. The idea of best evidence is implicit in the Evidence Act. Evidence under the Act, consists of statements made by a witness or contained in a document. If it is a case of oral evidence, the Act requires that only that person who has actually perceived something by that sense, by which it is capable of perception, should make the statement about it and no one else. If it is documentary evidence, the Evidence Act requires that ordinarily the original should be produced, because a copy may contain omissions or mistakes of a deliberate or accidental nature. These principles are expressed in Sections 60 and 64 of the Evidence Act.
35. The term "hearsay" is used with reference to what is done or written as well as to what is spoken and in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. The word "hearsay" is used in various senses.
Sometimes it means whatever a person is heard to say. Sometimes it means whatever a person declares on information given by someone else and sometimes it is treated as nearly synonymous with irrelevant. The sayings and doings of the third person are, as a rule, irrelevant, so that no proof of them can be admitted. Every act done or spoken which is relevant on any ground must be proved by someone who saw it with his own eyes and heard it with his own ears.
36. The argument that the rule of appreciation of hearsay evidence would not apply to determination of the question whether change of venue of polling station has materially affected the result of the election of the returned candidate, cannot be accepted for the simple reason that, this question has to be determined in a properly constituted election petition to be tried by a High Court in view of the provisions contained in Part VI of the Representation of the People Act, 1951 and Section 87(2) of the 1951 Act, which specifically provides that the provisions of the Evidence Act, 1872, shall subject to the provisions of the Act, be deemed to apply in all respects to the trial of an election petition. The learned counsel for the appellant could not point out any provision of the 1951 Act, which excludes the application of rule of appreciation of hearsay evidence to the determination of question posed for consideration of this Court in the instant appeal.
37. Here comes the rule of appreciation of hearsay evidence. Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied upon, into court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed, if they exist, by the test of cross-examination. The phrase "hearsay evidence" is not used in the Evidence Act because it is inaccurate and vague. It is a fundamental rule of evidence under the Indian law that hearsay evidence is inadmissible. A statement, oral or written, made otherwise than by a witness in giving evidence and a statement contained or recorded in any book, document or record whatsoever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated. An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. That this species of evidence cannot be tested by cross-examination and that, in many cases, it supposes some better testimony which ought to be offered in a particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embarrassing and dangerous length, its Page No.# 13/17 intrinsic weakness, its incompetence to satisfy the mind of a judge about the existence of a fact, and the fraud which may be practised with impunity, under its cover, combine to support the rule that hearsay evidence is inadmissible.
38. The reasons why hearsay evidence is not received as relevant evidence are:
(a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility i.e. every witness must give his testimony, under such circumstance, as expose him to all the penalties of falsehood.
If the person giving hearsay evidence is cornered, he has a line of escape by saying "I do not know, but so and so told me",
(b) truth is diluted and diminished with each repetition, and
(c) if permitted, gives ample scope for playing fraud by saying "someone told me that...".
It would be attaching importance to false rumour flying from one foul lip to another. Thus statements of witnesses based on information received from others is inadmissible.
25. From the evidence adduced by the prosecution it is also not clear as to whether the family of the child acted as per the demands of the alleged kidnapper and arranged the ransom amount. As per the testimony of PW.2, PW.1 had negotiated with the alleged kidnappers when they called to make the alleged demand and brought down the ransom to Rs. 7 Lakhs, but there is no evidence that the ransom amount of Rs. 7 Lakhs was carried either by Narayan Das or by J.C. Barman or by the I.O. From the deposition of PW.1 it can be seen that after the child was found missing and on receipt of a call from the alleged kidnapper the police personnel came to the house of the informant/PW.1 and fitted machine to their landline telephone and recorded the phone calls. But during the trial, no record about the phone calls which were stated to have been recorded was produced. No transcription of the recorded conversation was produced in the documentary form before the Trial Court, whereas as per the version of the prosecution, it is on the basis of phone calls, the conversation of which were recorded by police, enabled the police personnel to reach the alleged kidnappers. As such it was incumbent on the part of the prosecution to produce the evidence in that regard. Such lapse on the part of the investigating agency cannot be brushed aside as mere faulty investigation, but it amounts to withholding of the best evidence.
26. As per the versions of PWs.1 and 2, the alleged kidnappers had told PW.1 that they had kept their son in a place in Sarthebari and that was done through telephonic conversation. Another aspect, thus noticed is that it was claimed that the child was rescued from a place in Sarthebari. But none of the persons from the neighborhood, wherefrom the Page No.# 14/17 child was rescued, was examined by the prosecution. Similarly, no person from the Ambari area in Guwahati, wherefrom the child was allegedly kidnapped and the accused-appellant was found missing, was examined. We have also noticed the fact that the alleged kidnapping of the child had happened in the Ambari area of Guwahati city, whereas the alleged rescue of the child was made from a locality in Sarthebari, which is about 100 Kms away from Guwahati. Thus, the alleged kidnapping required taking the child from Guwahati to Sarthebari by some mode of transportation and such travel required at least few hours. But, no evidence in this aspect was led by the prosecution side.
27. It is not a case of the prosecution that it was the accused-appellant who had made the telephonic calls to the family of the kidnapped child. As per the versions of PWs. 1 and 2, the accused-appellant was in their house as domestic helper for about 2 (two) years and as such; they were well acquainted with the voice of the accused-appellant. As per PW.2, there were repeated telephonic calls from the alleged kidnappers and PW.1 had negotiated with the alleged kidnappers about the amount of ransom. But none of these 2 (two) witnesses, (PWs. 1 or 2) had said that it was the accused appellant with whom they had talked or negotiated for recovery of their child.
28. It may be noticed that no evidence was found against the other 2 (two) accused persons who stood trial along with the accused-appellant and they were, accordingly, acquitted. During the cross-examination, none of the parents of the child had deposed that they had, at the time when the child was found missing, had any doubt against the accused- appellant. PW.1, in his deposition stated that he did not find anything suspicious in the behavior of the accused-appellant during his stay of about 2 (two) years in his house as a servant. PW.2, also during the cross-examination, deposed that during the period of about 2 (two) years as servant in their house, the gesture and posture of the accused appellant was good.
29. PW.3, the I.O. deposed that he received the information about missing of the child at about 9-30 a.m. on 04.04.1999 from PW.1 verbally and that the PW.1 had only informed the Police Station that the accused-appellant who had taken his son for a morning walk, did not return till 9-30 a.m. When PW.1 had informed police at 9-30 a.m. he did not suspect anything against the accused appellant. The I.O. did not disclose in details as to how the operation to Page No.# 15/17 rescue the alleged kidnapped child was carried out. He simply deposed that at 10:00 p.m. on 06.04.1999, he rescued the child from the custody of the accused appellant at Sarthebari cross-roads along with the other accused, Umesh Medhi. It is not known what prevented the I.O. of the case to disclose about the details of the operation alleged to have been carried out by him to rescue the boy. In the absence of any evidence in this regard, it is not acceptable that any kind of operation requiring detailed preparation to execute the operation was made to rescue the boy. The I.O. of the case, i.e. PW.3 did not depose anything as to where the kidnapped child was kept from the time of the alleged kidnapping till he was found in Sarthebari from Guwahati. Whether the I.O. had failed to gather any evidence about the places where the child was kept or detained after such kidnapping during the said period or he did not make any effort to gather such evidence is not disclosed by him. It is submitted by the learned counsel for the appellant placing reliance in the decision of State of Uttar Pradesh Vs. Wasif Haider & Others, reported in (2019) 2 SCC 303 that it appears to be nothing but a case of defective investigation leaving many lacunas. It also appears to us that the present case is ridden with multiple investigating lapses to unearth the root of the matter.
30. The Trial Court found no evidence to hold that the accused Umesh Medhi and Amal Haloi were also involved with the kidnapping of the child. The Trial Court found the evidence of the I.O. that the accused Umesh Medhi was accompanying the accused appellant when they apprehended the accused appellant not believable. Since the I.O. did not keep the alleged seized purse and the piece of paper containing telephone number of the informant in sealed cover, the Trial Court held that the Material Exhibit-1 cannot be held to be the purse and paper recovered from the possession of the accused Umesh Medhi. It was not even ascertained by the I.O. as to whether the telephone numbers that were written on the piece of paper seized in the case, belonged to the informant or any of his family members. Mere finding of a piece of paper with certain telephone numbers did not mean that ransom demand was made from that person or from any of his alleged accomplices like the accused- appellant. Such evidence without any corroboration of any kind does not indicate anything inculpatory against the accused appellant.
31. It is not established that it is the accused appellant who had kidnapped the child of PWs.1 and 2 and kept him in detention after such kidnapping by him. It is not also Page No.# 16/17 established that the present accused appellant had kidnapped the child for ransom. The only piece of evidence in the entire prosecution case was that of the I.O. to the effect that the child was found with the accused appellant and the accused appellant was found walking with Umesh Medhi. In his statement recorded under Section 313 Cr.P.C., when he was put to explain the said situation, the accused appellant stated that the police apprehended him when he was running away rescuing the child from the clutches of the kidnappers. When this piece of evidence of the prosecution side that the accused appellant was found with the child is considered even after accepting the same as true, it is not possible to arrive at any kind of conclusion that it was the accused appellant who kidnapped the child and after such kidnapping, he kept the child under detention to extract any kind of ransom in order to attract the ingredients of the offence under Section 364A IPC, mentioned hereinabove.
32. In view of the above discussion, we are of the considered opinion that the learned Trial Court while appreciating and appraising the evidence available on record has not examined the entire factual aspect of the case including the essential ingredients of the offence under Section 364A IPC. We noticed that the Trial Court has failed to appreciate the evidence in proper perspective and has accepted the evidence of prosecution witnesses on their face value, without considering the inherent non-acceptability of evidence and the doubtful circumstances emanating there from. Considering the entire fact and situation, we find that the prosecution has failed to prove the case against the accused appellant to bring home the guilt against him by unerringly proving that it is the accused-appellant who had committed the crime. The evidence produced by the prosecution does not establish its case beyond reasonable doubt. The Trial Court, therefore, according to us, was not justified in convicting the accused for the offence under section 364A, IPC.
33. In the light of the above discussion and the conclusions arrived at by us, on re- appreciation of the evidence, we are of the firm opinion that the impugned judgment of conviction and sentence dated 02.07.2014 passed by learned Additional Sessions Judge No. 1, Kamrup (Metro), Guwahati in Sessions Case No. 226(K)/2012, arising out of G.R. Case No. 1794/1999, corresponding to Latasil Police Station Case No. 43/1999 against the accused appellant for the offence under Section 364A, IPC cannot sustain and accordingly, the same is set aside and quashed.
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34. As a result, the instant appeal is allowed. The appellant, namely, Shri Karuna Deka, is acquitted of the offence under Section 364A IPC in said Sessions Case No. 226(K)/2012, arising out of G.R. Case No. 1794/1999, corresponding to Latasil Police Station Case No. 43/1999 and he shall be set at liberty forthwith, if not required in connection with any other case.
35. The Superintendent of Central Jail, Guwahati, Sarusajai, District-Kamrup (Metro) be informed forthwith regarding the outcome of this appeal as well as the direction and the observation made therein.
36. Registry shall return the records of the trial Court to the Court of learned Additional Sessions Judge No. 1, Kamrup (Metro), Guwahati with a copy of this Judgment.
JUDGE JUDGE Comparing Assistant