Jharkhand High Court
Upendra Yadav vs State Of Jharkhand on 28 July, 2018
Author: Pramath Patnaik
Bench: Pramath Patnaik, Ratnaker Bhengra
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Cr. Appeal (DB) No. 541 of 2008
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Against the judgment of conviction dated 05.04.2008 and the order of sentence dated 09.04.2008, passed by the then learned Additional Sessions Judge, F.T.C. IV, Deoghar in Sessions Case No. 151 of 2003.
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Upendra Yadav, s/o Rameshwar Yadav, resident of Vill- Lohanibegha, P.O. P.S. & District-Nawada, Bihar ... Appellant
-V e r s u s-
State of Jharkhand ... Respondent
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For the Appellant : Mr. B. M. Tripathi, Sr. Advocate
Mr. Ashutosh Anand, Advocate.
For the Res-State : Mr. S. K. Srivastava, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE PRAMATH PATNAIK.
HON'BLE MR. JUSTICE RATNAKER BHENGRA.
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C.A.V. On: - 07.07.2018 Delivered On: - 28/07/2018
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Per Pramath Patnaik, J. This appeal is directed against the judgment of
conviction dated 05.04.2008 and the order of sentence dated 09.04.2008, passed by the then learned Additional Sessions Judge, F.T.C. IV, Deoghar in Sessions Case No. 151 of 2003, whereby the appellant on being convicted for the offences, punishable under Sections 364 (A) and 120 B of the Indian Penal Code, has been sentenced to undergo imprisonment for life and also to pay a fine of Rs.5,000/- with default clause.
2. The case of the prosecution, as has been projected by the informant, the uncle of the victim (PW 10), is that on 16.01.2002, at about 7.30 A.M, when his nephew, namely, Ranjeet Kumar, son of Mr.Arun Prasad Keshri, was sitting in his sweets' ('Peda') shop, three boys aged about 28 to 30 year came to his shop and 2 ordered for 10 K.G. of sweets ('Peda') for which, an advance of Rs.100 was given and they told the victim boy to deliver the same in Room No. 19, Gupta Hotel at Jalshar Road and the rest amount will be paid there. At about 11.00 A.M., Ranjeet Kumar alongwith his staff went to the Hotel to deliver the sweets. The accused persons behaved friendly with the victim and offered him tea. Due to delay, the staff of the victim was sent back to the shop. Thereafter, as per the hotel manager, a White Ambassador car came to the hotel and all the persons left the hotel after loading their baggages but the victim did not come back home. In the evening, family, members frantically searched the victim, every nook and corner, but, could not find him. Thereafter, in the night, the father of the victim Arun Prasad Keshri alongwith his neighbours informed the Police regarding the missing of his son. On the very next day, unknown phone call was received, and a caller threatened the family members that their son is in their custody and if it is informed to the Police, the child will face the dire consequences. Being threatened over phone, the family members became scared and did not go to the Police Station for further action.
3. On the basis of the written report, an FIR was instituted against the unknown persons under Sections 365, 367/34, 364/120B I.P.C. The Investigating Officer took up the investigation and after conclusion of the investigation, chargesheet was submitted against the accused persons including the appellant. Thereafter, cognizance was taken and the case was committed to the Court of Sessions and the 3 appellant was put on trial.
4. During trial, the Prosecution in order to prove its case, examined altogether 16 witnesses. Of them, P.Ws. 1, 4, 6 and 7 have not supported the case of the prosecution and have turned hostile. The relevant testimonies of rest of the witnesses are discussed herein below:
(i).P.W. 2, Mira Devi, who is the mother of the victim boy, has testified to the effect that she received information on the next day morning of the alleged occurrence i.e. on 17.01.2002 to the effect that her son has been kidnapped and is in the captivity of kidnappers. She also has testified that the kidnappers have demanded Rs.10 lacs, but, she could manage to arrange 3.5 lacs for payment to the kidnappers and according to the information received, she went to Khagaria, but she did not find her victim son there.
Further, she was informed by the kidnappers to come to Rajgir to Biharsharif. Further, she also received information to come to Sattar hotel of Nawada, though she went to Nawada alongwith the police party, but, there also, her victim son was not found. Thereafter, she received information from Jhumritelaiya that her kidnapped son had been released from the captivity of kidnappers. She went to Jhumeritelaiya and saw that her son alongwith one accused Manoj Rawani. The said accused confessed his guilt before the Police and name of other co-accused was disclosed before the Police.
(ii).P.W.3 has testified that the victim boy has been under 4 the captivity of the kidnappers and there was cordial relationship among the agnates.
(iii).P.W. 5 has derived his knowledge from the members of the victim family about the kidnapping and demand of ransom. Thereafter, accompanied the family members to different places.
(iv).P.W. 8, Ranjeet, the victim boy has deposed that the occurrence took place on 16.01.2002. When he was at home, he received a phone call from Ranchi at about 6.45 A.M. The caller told him to give the best ('Peda') to his son who will come to his shop. The shop was opened at 7 A.M. and at about 8 A.M. three persons came to his shop and asked about him. They ordered for 10 Kgs off ('Peda') and told him to deliver the same in Gupta hotel and also gave Rs.100 as advance. Thereafter at about 11 A.M. he alongwith his staff went to the hotel to deliver the order, they after asking the manager went to Room No. 19 along with the hotel staff to deliver the same. When they reached the room they saw three persons were sitting there and after delivery when the victim demanded for rest of the money the accused persons told him that their uncle went to vakil sahib and the rest amount will be paid there. In the meantime another person came and said that the car is parked below. The person came later was the driver namely Upendra Yadav. Thereafter they came down and sat in the car after paying the bill of the hotel. The victim also sat with them, the car was running towards Jasidih and at near Dabar village, two people were walking, 5 one of the people in car said that those people are the peon of the said uncle. Thereafter both of them sat in the car, one of them was Monaj Rawani and the other was named as Mukhiya ji.
In a railway crossing when the car was stopped the victim again demanded the money and denied to go with them but they said him to sit in the car. When the car reached at lonely place, one of them namely Upendra Yadav pointed a pistol and threatened him, the other person, namely, Rajesh injected him on his buttock and he became senseless and when he regained consciousness he would find himself near Hazaribagh. He was again injected and became senseless and when the victim again became conscious, he found himself in Jhumeritelaiya. Thereafter, two persons caught hold him by his hand and leg and took him to a room and confined him. In the next morning when the victim regained sense, he requested the accused persons to release him upon which they said stay for some days when they got the ransom money they will release him. Sometime they demanded Rs.10 lac or sometime Rs.5 lac. He further deposed that he was kept there for 20 days and on 21st day he was recovered by the Police.
He further deposed that during the period of his captivity the accused persons were talking among them self and thus he came to know their names as Madan, Bablu, Rajesh, Monaj and one Mukhiya Ji. During the period of his captivity, Madan was the man who has told him to talk to his 6 mother on phone and also to write letters. He further deposed that Mohan was working in the telephone of one Murli near Deoghar so he wants to kill him after getting ransom money.
(v).P.W. 9 the father of the victim, has narrated the incidents and has corroborated the statement of P.W. 8. During course of his testimony, he has mentioned about three letters, which has been marked as Exhibit-2 and 2/1. The letter was written by his son, Ranjeet Kumar. P.W. 9 further stated that after receipt of the said letters, the kidnappers used to call him by using vulgar words. P.W. 9 has also proved Cassette, which has been marked as Exhibit 'X'. He has deposed regarding the demand of ransom of 10 lacs and finally, the deal was struck at Rs.3.5 lacs and he has also stated about the recovery of his son from Jhumeritelaiya.
(vi).P.W. 10 has corroborated the versions of other prosecution witnesses and has also proved the written report, which has been marked as Exhibit-3.
(vii).P.W. 11 has proved the entry in the register of Barnwal Seva Sadan, which has been marked as Exhibit 4.
(viii).P.W. 13 has testified that the victim boy was recovered from the house of late Kamleshwari Prasad Yadav.
(ix).P.W. 16 is the Investigating officer, who has testified that the victim boy has narrated the incident and also deposed that the victim boy was recovered from the house of one Savitri Devi, wife of late Kamleshwari Prasad. The Investigating Officer has prepared the seizure list, which has 7 been identified by him and marked as Exhibit-5.
5. After closure of prosecution case, the appellant was questioned under Section 313, Cr.P.C. about the incriminating evidences appearing against him, to which he denied.
6. Thereupon, the learned trial court having placed its implicit reliance on the testimony of the victim boy, Ranjeet Keshri (P.W.
8) and also on the testimonies of P.W. 2, 9 and 10 about the ransom, also coupled with the fact that the appellant has been identified by the victim during course of examination in the court, having found the appellant guilty for the offences, punishable under Sections 364 A and 120 B of the Indian Penal code.
7. Learned counsel for the appellant during course of hearing, has submitted with vehemence that none of the prosecution witnesses, has alleged any specific overt act against the appellant and on the basis of the evidence on record, there is absolutely nothing against the appellant, so as to implicate him under Section 364 (A) of the Indian Penal Code. Learned counsel further submits that the evidence of prosecution witnesses are fragile and contradictory, therefore, the ingredients of Section 364 (A) of the Indian Penal code does not get fulfilled. Further submission of the learned counsel for the appellant is that though the appellant has been convicted for the offence under Section 364 (A) of the Indian Penal code, but one of the ingredients of putting the person under threat of life or injury, has been lacking. Further submission of the learned counsel for the appellant is that the incriminating material appearing against the appellant has never been put to the appellants in accordance with law as 8 prescribed under Section 313, Cr.P.C. In this regard, learned counsel highlighted that the questions have been put to the appellant in a generalized manner though it should have been quite specific. Learned counsel for the appellant further submitted that moreover in the case at hand, the appellant was identified in Court during trial and no Test Identification Parade was ever conducted. It is established principle of law that identification in Court is totally different than that of Test Identification Parade, but the trial Court only on the basis of identification in Court has sentenced the appellant. Moreover, there is contradiction in statement made under Section 164 Cr.P.C and evidence deposed before the Court; as in the statement made under Section 164 Cr.P.C the name of the appellant did not come to surface, however in deposition the victim has named this appellant. Thus, it has been submitted that the learned trial court did not take into account all these aspects in the matter in its right perspective and thereby it committed illegality in recording the order of conviction and sentence against the appellant and thereby the order of conviction and sentence is fit to be set aside.
8. As against the submissions of the learned counsel for the appellant, learned A.P.P. appearing for the Respondent-State submits that so far as the offence under Section 364 (A) of the Indian Penal code is concerned, all the ingredients, which are required to be there for attracting offence under Sections 364 A of the Indian Penal Code, has been proved by the prosecution, as the evidences of P.W. 2, P.W. 9, P.W.10 and P.W. 8 are there that 9 the victim unerringly point to the guilt of the appellant, so far as commission of kidnapping, demand of ransom and putting the victim boy under threat are concerned.
9. From the materials available on record, there is no gainsaying of the fact that the victim was kidnapped. The moot question which falls for consideration before this Court whether there is the complicity of the present appellant in the alleged crime and the role played by the present appellant so as to attract offence punishable under Section 364(A) of the Indian Penal Code.
10. However, before deciding the question of complicity of the present appellant in the alleged crime so as to attract offence punishment under Section 364 (A) I.P.C., it would be proper to reproduce the relevant Section 364-A of the Indian Penal. The said provisions reads as follows:
"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 organization or any other person to do or abstain from doing any act or to pay a ranson, shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
11. From the conclusion arrived at the learned trial Court only at paragraph 30 of the impugned judgment, it appears that only on the basis of statement made by P.W. 8, the victim, at 10 paragraph 2 of his examination-in-chief that he was Kidnapped in an Ambassador Car and the car was driven by Upendra Yadav and the car was taken to unknown destination, the appellant- Upendra Yadav was convicted for life. There cannot be any doubt or debate that the victim was abducted; he was in the captivity but whether there is complicity of the present appellant or not is doubtful as in his cross-examination, the victim has deposed that he is not in a position to say that whether Upendra Yadav, the appellant herein, was driving the car at the time of occurrence rather he deposed at the instance of police official, he identified Upendra Yadav, the present appellant in Court and further he has not given his statement under Section 164 Cr.P.C that at the time of occurrence Upendra Yadav was driving the Car. Hence, here the question remains that mere identification by victim in the Court that too as per admittance made by victim that he identified at the instance of Police, would suffice to convict the appellant for life. The answer is certainly in the 'Negative' as the sole witness himself was not sure that at the time of kidnapping, Upendra Yadav- the appellant, was driving the car or not. Besides, in the case at hand police did not bother to hold Test Identification Parade so that accused could have been identified. Undoubtedly, identification in Court has lesser weightage than that of Test Identification Parade.
12. As a logical sequiter of the aforesaid facts and reasons, we are of the considered view that the trial Court has erred in arriving at the conclusion that the prosecution has proved the guilt against Upendra Yadav, unerringly, unimpeachably and 11 beyond the reasonable doubt, under Section 364 (A)/ 120 (B) of the Indian Penal Code. Hence, the judgment of conviction dated 05.04.2008 and the order of sentence dated 09.04.2008, which is not sustainable in the eyes of law, so far present appellant is concerned, are hereby quashed and set aside.
13. Consequently, the appellant, named above, by giving the benefit of doubt, is acquitted of the charges and since the appellant is in custody undergoing the sentence, he is directed to be released forthwith, if his detention is not required in any other case.
14. The appeal is allowed accordingly. Let the Lower Court Records be sent back to the court concerned forthwith, along with a copy of this Judgment.
(Pramath Patnaik, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated, the 28th day of July, 2018 APK/Alankar/N.A.F.R