Calcutta High Court (Appellete Side)
Chan @ Chand Md & Ors vs State Of West Bengal on 23 June, 2015
Author: Tapash Mookherjee
Bench: Tapash Mookherjee
Form No. J(1) IN THE HIGH COURT AT CALCUTTA CRMINAL APPELLATE JURISDICTION Present:
The Hon'ble Justice Tapash Mookherjee CRA No. 160 of 2009 Chan @ Chand Md & Ors.
-vs-
State of West Bengal
For the Appellants : Mr. Kallol Mondal,
Mr. Krishan Ray,
Ms. Amrita Chel,
Mr. Rupam Gupta.
For the State : Mr. Manjit Singh, ld. P.P.
Mr. Pawan Kumar Gupta.
Heard on : 19-06-2015, 22-06-2015 and 23-06-2015.
Judgement on : 23-06-2015.
The present appeal is directed against the judgement of conviction and order of sentence dated 29-01-2009 passed by the learned Additional Sessions Judge, Fast Track 2nd Court, Malda, in Sessions Trial No. 3 of 2005 (S.C. No. 55 of 2004). By the said judgement and order, the learned Trial Court found all the appellants guilty of the offence punishable under Sections 365/34 of I.P.C and sentenced the appellants to suffer rigorous imprisonment for seven years with fine of Rs. 2000/-each i.d. to suffer further imprisonment for 15 days.
The facts leading to the appeal, in short, are as follows :
On 19th June, 2015, one Nazir Hossain and his minor son of village: Khusrekha under P.S. Ratua, District: Malda, went to a 'hat' at Samsi to sell their cattle. At about 4-00 p.m., Nazir Hossain asked his son to return home and he himself returned home in the night and after returning home, he did not find his son in the home. There was a search for the son in the village but of no result and during such search, some of the villagers informed Nazir Hossain that they 2 had seen his son, Mithu moving with the appellants in that very afternoon. Before the aforesaid incident, enmity was going on between one of the appellants and the family of Nazir Hossain in connection with Nazir Hossain's brother, Abdul Jalil, removing the appellant, Chand @ Chand Md, from the service as a driver under the said Abdul Jalil and at that point of time, the appellant, Chand Md, openly threatened to cause serious damage to any of the family members of the said Abdul Jalil and for such reasons, Abdul Jalil and his near relations including his nephew, Nazir Hossain, suspected that the appellant, Chand Md, with the appellants kidnapped the minor son of Nazir Hossain for some illegal purposes. Nazir Hossian's son Mithu thus found missing on 13-07-2000 could not be traced out and hence, Nazir Hossain's cousin brother, Samsul Haque, submitted a written complaint on 20-07-2000 narrating all the aforesaid facts, on the basis of which, Ratua P.S. Case No. 85 of 2000 dated 20-07-2000 was started under Sections 363/365 of I.P.C. against three appellants, namely, Chand @ Chand Md, Ajad Ali and Abdul Nausad and after completion of investigation, charge-sheet under Sections 364/34 of I.P.C. was submitted against the three appellants named above.
After submission of the charge-sheet, the case was committed to the Court of the learned Sessions Judge, Malda, from where the case was transferred to the Court of the learned Additional District & Sessions Judge, Fast Track 2nd Court, Malda, for trial.
Considering the materials collected during investigation, charge under Sections 364/34 of I.P.C. was framed at first against the appellants, Chand Md, Ajad Ali and Abdul Nausad by the said Trial Court. Subsequently, during trial the involvement of the appellant, Jamshed Ali, in the offence alleged transpired from the evidence of some of the witnesses examined and hence, the said Jamshed Ali was also made an accused in the case under Section 319 of Cr.P.C by the Trial Court by its order dated 12-12-2005 and a charge under Sections 364/34 of 3 I.P.C. was also framed against the appellant, Jamshed Ali, thereafter. However, the appellant, Jamshed Ali, died during the pendency of the appeal.
All the appellants denied the charge and pleaded their innocence all along. Prosecution examined as many as 12 witnesses in the case and proved some documents as well. Defence tendered no evidence whatsoever. Considering the evidence thus produced on record, the Trial Court found the appellants guilty of the offence under Sections 365/34 of I.P.C. and convicted the appellants accordingly and passed the sentences mentioned earlier and hence, the appeal.
Mr. Mondal, learned Advocate appearing for the appellants, argued that the appellants have been found guilty on the basis of 'last seen together' theory although none of the witnesses examined by the prosecution stated that he saw the victim Mithu in the company of the appellants after which the victim was found missing. Mr. Mondal further pointed out that the F.I.R. was lodged after about 7 days from the date of the alleged missing of the victim. Such a long delay has not been explained by the prosecution and for such reason, judgement of conviction of the appellants is not sustainable in law.
On the other hand Mr. Gupta, learned Advocate appearing for the State, argued that a strong case of motive of the appellants behind the missing of the victim has been well made out and the other circumstances, also proved in the case, support the prosecution case in substance.
Mr. Gupta has informed the court during his argument that the victim of the alleged kidnap, Md. Mithu, has returned to his village himself a few months before and that he is now residing as a domesticated son-in-law in another village. Mr. Gupta has submitted further that he has gathered the aforesaid information from the police station concerned.
One Samsul Haque (P.W.1) filed the F.I.R. in the case. He stated that the appellant, Chand Md., was a driver of a truck owned by his uncle, Abdul Jalil and that for an allegation of mis-appropriation of money, the appellant, Chand Md. was removed from the service under his uncle after which the appellant, 4 Chand Md., openly threatened to cause serious mischief to the families of Abdul Jalil. P.W. 1 stated further that some time after such threatening, one day his cousin brother, Nazir Hossain, went to the local 'hat' at Samsi with his son Sk. Mithu for selling their cattle and Sk. Mithu was subsequently asked by his father to return home alone and since thereafter Sk. Mithu was not traceable anywhere. P.W.-1 stated further that subsequently, they came to know that the victim, Sk. Mithu was found with the appellants for the last time in the very evening of the day of his missing. P.W.1 stated further that he submitted the F.I.R. in the police station on which he put his L.T.I. Abdul Jalil (P.W.2), Md. Humayun (P.W.3), Isha Ali (P.W.4) and Md. Ibrahim (P.W.5) were all relations of P.W.1 and all of them stated that enmity was going on between their families and the family of the appellants and as a consequence of such enmity, Sk. Mithu was kidnapped by the appellants as a revenge upon their families.
Tapan Singha (P.W.7) was the scribe of the F.I.R. and he had no personal knowledge about any fact in issue.
Mantu Mahammad (P.W.8) claimed that at the relevant time, he was engaged as a 'Khalasi' of the truck being no. WB-65/4315 owned by Abdul Jalil and the appellant, Chand Md. was the driver of the vehicle at one point of time. He stated further that the appellant, Chand Md. was sacked from his service under Abdul Jalil for an allegation of mis-appropriation of money. He stated further that after such removal of the appellant, Chand Md., from service under Abdul Jalil one day, the appellant, Chand Md. along with other appellants stopped their truck and challenged the removal of the appellant, Chand Md., from service under Abdul Jalil and within a short period thereafter the grand son of Abdul Jalil, Sk. Mithu, was found missing.
Nazir Hossain (P.W.9) is the father of the victim. He stated that on the day of the incident, he had taken his minor son, Mithu, with him to the local 'hat' at Samshi to sell their buffalo and in the afternoon, he asked his son to return 5 home alone but subsequently in the night when he himself returned to his home, he found that his son had not returned after which he started searching for his son and during such search, he came to know from some of his relations that they had seen his son Mithu moving with the appellants in that afternoon.
Momeda Bibi (P.W.10) was the mother of the victim. She stated that on the day of the incident, she went to the local 'hat' at Samshi along with her husband and son for selling their buffaloes and their son was supposed to return home prior to them but in the night after their return to their home, they found their son missing. She stated further that the appellants were responsible for such missing of their son.
Inspector Rup Narayan Basak (P.W.11) investigated the case in part and Inspector Pronay Krishna Dutta (P.W.12) registered the case at Ratua Police Station.
Admittedly, the victim was found missing from the night of 13-07-2000 but the F.I.R. was submitted in the Police Station on 20.7.2000, i.e. after about seven days. It is stated in the F.I.R. that search for the victim was the cause for such a long delay. P.W. 10, i.e., the victim's mother stated something else. According to her, she herself informed the fact of the missing of her son to the local police three days after her son was found missing but no such information to police has been produced by prosecution. There could have been a missing diary soon after the victim was found missing. But no such missing information was also given to the police. In view of such facts and circumstances, the long delay behind the F.I.R. cannot be said to have been satisfactorily explained.
Mr. Gupta admitted that the prosecution's case totally stands upon the 'last seen together' theory. So, the evidence on the point be now looked into.
P.W.1, P.W.2, P.W.8, P.W.9 and P.W.10 did not claim to have seen the victim with any of the appellants in the evening of the missing of the victim. It 6 was only P.W.3, P.W.4, P.W.5 and P.W.6 who stated that they saw the victim moving with the appellants in the afternoon of the missing of the victim. P.W.3 stated that in the evening of the incident, he found the victim Mithu with the appellants upon the road near Kushraksha bridge. He stated further that he talked with the victim and thereafter, he went away. It should be noted here that during the meeting with the victim, P.W.3 did not receive any allegation from the victim against any of the appellants. During his cross-examination, P.W.3 explained that the victim was alone on the road when he talked with the victim and within a short period thereafter, the appellants came to the spot and some time thereafter, the appellants and the victim started moving towards the village. From such statement, it is clear that P.W.3 saw the victim and the appellants only moving along the road at the same time. Similar was the evidence of P.W.4 on the point. According to P.W.4, he saw the victim moving towards their village and the appellants moving behind the victim.
P.W.5 stated that in the evening of the incident when he along with P.W.4 was returning to their village from the 'hat' at Samsi, he noticed the victim Mithu also returning home from the 'hat' through the same road and the appellants moving behind Mithu and subsequently, they came to know that Mithu was missing.
P.W.6 stated that in the afternoon of the incident while he was returning home from the 'hat' at Samsi, he noticed Mithu standing near the tea stall of one Naimuddin along with a boy of Mithu's age. He stated further that after moving ahead he bought Betel leaf from a stall where he found the appellant, Chand Md, sitting and thereafter he went to his home. According to the F.I.R, P.W.6 was the person who informed P.W.1 and others as to what he found in that evening. It should be mentioned here that P.W.6 stated that he found Mithu standing in a tea stall with a another boy and he found the appellant, Chand Md only, in a tea stall nearby. So, according to him, the appellant, Chand Md, was not with the other appellants at the relevant time.7
So, according to the statements of P.W.3, P.W.4 and P.W.5 they found only the victim and the appellants moving along with the same road towards the village almost at the same time. From their evidence, it does not appear that the victim was moving in the company of the appellants. The version of P.W.6 was different and according to him, he found the victim sitting in a tea stall on the way to the victim's house and according to him, he found the appellant, Chand Md, in a Betal leaf shop near to the tea stall.
According to Section 361 of the Indian Penal Code - "whoever takes or entices any minor ..............................is said to kidnap such minor or person from lawful guardianship". So, 'taking away' or 'enticing' are the two essential ingredients of the offence of kidnapping from lawful guardianship. From the evidence of P.W.3, P.W.4, P.W.5 and P.W.6, it is found that the victim was moving along the road freely and without any kind of influence whatsoever from any of the appellants. The road through which the victim was passing was the road towards the village of the victim as well as the appellants. So, apparently, there is nothing wrong if the victim and the appellants were found moving through the same road. It should be noted here that P.W.3 stated that he met the victim and had a talk with the victim. If the victim was under any compulsion or influence asserted on him by the appellants, he should have disclosed it to P.W.3 who was his relation as well as like a friend as stated by P.W.3. But nothing like that was disclosed by the victim to the P.W.3. So, the essential ingredients of the offence kidnapping from lawful guardianship is totally absent in this case.
So, from the evidence of P.W.3, P.W.4, P.W.5 and P.W.6 it can be, at best, said that the victim and the appellants were seen moving along the said road almost at the same time. If, those witnesses had seen at all, anything like that. The prosecution, therefore, cannot bank upon the 'last seen together' theory.
Different versions of the witnesses are found on the point of enmity between the appellant and the witnesses. Some of the witnesses stated that the appellant, Chand Md, was the driver of Abdul Jalil and as the appellant, Chand 8 Md, was sacked from the job because of mis-appreciation of money, he had a grudge against the said Abdul Jalil and his family. P.W.2 stated such a fact during his examination-in-chief. Some other witnesses also stated so. But P.W.10, the mother of the victim, stated that the appellant, Chand Md, eloped with the daughter of Abdul Jalil because of which the appellant, Chand Md, was sacked by Abdul Jalil and then the appellant, Chand Md, threatened Abdul Jalil of dire consequences. It is not, therefore, clear as to what was the real dispute between the appellants and the families of the witnesses.
So from what has been discussed above, it is clear that prosecution totally failed to prove that the minor son of P.W.9 and P.W.10 was kidnapped by the appellants or any of them. In fact, the case arose from suspicion as stated by the victim's father (P.W.9) and P.W.5 as well, and the case ended also in suspicion only. Suspicion whatever strong may be is no substitute of the case being proved. Trial court misread the evidence and thereby came to wrong decisions. The judgement of conviction and order of sentence by the trial court are not therefore sustainable in law. So, the appeal is allowed. The judgement of conviction and order of sentence dated 29.01.2009 and 30.01.2009 passed in the case against the appellants by the trial court are hereby set aside. All the appellants are found not guilty of the offence under Sections 365/34 of the Indian Penal Code and they are acquitted accordingly.
The bail bonds furnished by the appellants stand discharged. Let the L.C.Rs. be returned to the Trial Court at once along with a copy of the judgement.
Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Tapash Mookherjee, J.) 9