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Jharkhand High Court · body

2007 DIGILAW 300 (JHR)

Shankar Mallah v. State of Jharkhand

2007-04-11

D.P.SINGH

body2007
Judgment D.P. Singh, J.-Since all the appeals, arise out of common judgment, are heard together and are being disposed of by this common judgment. 2. All these appeals are directed against the judgment of conviction and order of sentence dated 3.9.2002 and 4.9.2002 passed by Additional District and Sessions Judge, III, Dhanbad in Sessions Trial No. 339/1986, whereby and whereunder the learned Sessions Judge held all the appellants guilty under Sections 365 and 387 IPC and sentenced them to undergo RI for five years under each sections. However, sentences were directed to run concurrently. 3. The brief facts leading to these appeal are that on 29.1 .86 two boys, namely, Saurabh Prasun Mitra and Sagar Guha came out of their school to board their school bus for their home at about 1.40 PM from Dinobali School, Dhanbad. However, when they could not reach their home situated in Sarari plant till 4 PM then the informant P.P. Mitra was informed by his brother S.P Mitra that the boys have not arrived at their homes. The informant alongwith father of Sagar Guha started searching their boys. Both of them came to Dhanbad police station and gave a written report regarding missing of their sons. As further stated they returned to Sarari plant and started searching their sons when they came to know from a student Ratnesh that when the boys came out of their school, appellant Manoj Kumar Sinha met them and told that their father was waiting for them outside. Further stated the said Ratnesh saw both the boys going with appellant Manoj Kumar Sinha boarding a tempo. Then the informant started searching Manoj Kumar Sinha, who was found after some time near a betel shop and on enquiry he disclosed that other appellants Shankar Mallah, Yakub Ansari and Sasir Ansari have kidnapped those boys for ransom and keeping them in Karmatanr hillock. Further stated that appellant Manoj disclosed to them that they have given a letter demanding Rs.1 lac as ransom from the informant and Kalyan Guha and threatened that if money was not paid the boys may be killed. The informant immediately reported the matter to Kenduadih police at 9.30 PM~ The police recorded the statement of P.P. Mitra and registered a case against all four named accused persons under Sections 364, 365, 385, 387, 120S/ 34 IPC. The informant immediately reported the matter to Kenduadih police at 9.30 PM~ The police recorded the statement of P.P. Mitra and registered a case against all four named accused persons under Sections 364, 365, 385, 387, 120S/ 34 IPC. The police started investigation, arrested the accused persons and recovered the boys. Finally chargeshee was submitted and appellants were put on trial for the charges mentioned above, to which they pleaded not guilty and claimed false prosecution. The learned trial court, after examining witnesses found and held the appellants guilty and sentenced them as mentioned aforesaid. 4. The present appeal has been preferred mainly on the ground that the learned trial court has convicted the appellants on conjecture and surmises. According to the learned counsel for the appellants, the learned court below has failed to consider that there was no eye witness of the occurrence and the person, who saw the appellants carrying boys, was not examined. It was further asserted that the 10 of the case has not been examined neither one of the victims Sagar Guha. It has further been pointed out that the first information, as per informant, reported to Dhanbad police in the evening, has not been brought on record. The counsel for the appellants further pointed out that even the letter of demand has not been produced and on mere disclosure of appellant Manoj Kumar Sinha, remaining appellants were tried and convicted, which is not valid in the eye of law. Therefore the appellants deserve to be acquitted of the charges. 5. I have carefully gone through the impugned judgment and materials on record. The prosecution case is that when two boys did not reach their homes, their fathers started searching them and at that time they informed Dhanbad police in this context. However, afterwards when they met Ratnesh Kumar, the classmate of the boys, he informed them that appellant Manoj Kumar Sinha has taken those two boys on the pretext of their parents waiting outside and they boarded a tempo with appellant Manoj Kumar. This appellant Manoj was later on questioned, on which he disclosed the names of other appellants having confined the boys in their possession for the purpose of ransom through a letter. The prosecution has not brought any such letter on record nor examined said Ratnesh Kumar, neither victim Sagar Guha. 6. This appellant Manoj was later on questioned, on which he disclosed the names of other appellants having confined the boys in their possession for the purpose of ransom through a letter. The prosecution has not brought any such letter on record nor examined said Ratnesh Kumar, neither victim Sagar Guha. 6. Another victim Saurabh Prasun Mitra, PW 6, has supported the informant that when they came out, appellant Manoj Kumar Sinha asked them that their father was waiting them and they left with him. He further asserted that both of them were taken on a tempo by appellant Manoj and two others and kept in a lonely place. He further asserted that they got a letter written by them to pay Rs.1 lac. However, he denied to identify any of the appellants present in the dock. Therefore, the involvement of other two appellants Shankar and Yakub is not supported by him. No other witness has any occasion to meet these two appellants prior to their arrest. Appellant Manoj Kumar Sinha is known to all of them since before. 7. PW 1, Fazal Bari, who has gone alongwith PWs. 2 and 3 to search the boys, supported the informant that appellant Manoj has disclosed to them regarding the involvement of other appellants. He admitted that Manoj was neighbour of the informant. PW 2, the informant, supporting his earlier statement, has disclosed that Manoj alongwith 3 others has committed this offence. According to him, both the boys were recovered from the house of appellant Yakub Ansari. During cross-examination this witness has admitted that he knew appellant Shankar Mallah working in coke plant having no criminal antecedent. He further admitted that when he returned from the office at 9.30 PM, Manoj was in custody of many other persons of Mohalla. He admitted that his statement was recorded next day in the morning at 8 AM at Kenduadih police station. He further admitted that he has not received any letter for ransom and the story of writing letter was disclosed to him by his son, PW 6. PW 3, Kalyan Kumar Guha, father of victim Sagar Guha, has supported the prosecution case. According to him, Manoj was caught hold by the police in the night and thereafter boys were recovered. PWs. 4, 5 and 6 have been tendered and they do not support the prosecution case. 8. PW 3, Kalyan Kumar Guha, father of victim Sagar Guha, has supported the prosecution case. According to him, Manoj was caught hold by the police in the night and thereafter boys were recovered. PWs. 4, 5 and 6 have been tendered and they do not support the prosecution case. 8. From the discussion made above, it is apparent that when appellant Manoj Kumar Sinha was arrested by the police he disclosed the names of other appellants. It is said that boys were recovered from the house of appellant Yakub Ansari. However, one of the victim PW 6 has not identified the other appellant Shankar Mallah in the dock. The said letter for ransom has also not been produced. In such circumstances only confessional statement of Manoj that too while in custody of police cannot be held valid against other appellants. The learned trial court has considered this fact, vide para 8 of the impugned judgment. It has been discussed that Manoj was known to all of them. However, the learned trial court having relied upon the statement of PWs. 2 and 3 that boys were recovered from the house of appellant Yakub Ansari after disclosure made by appellant Manoj, found and held all of them guilty. The recovery of boys by the police required to be proved by 10 or witnesses in whose presence they were recovered. In absence of any such letter, this fact becomes doubtful that any ransom was demanded. PW 6 has said that he has written that letter. However, the informant and other witnesses have admitted that no such letter was delivered to them. Therefore the point remains that on what basis the ransom was to be paid when Manoj was already in custody of the informant and police. It is well settled principle of law that whenever any accused is said to be involved in serious offence, evidence is equally required to prove the allegations against them beyond doubts. The offence, as alleged against the appellants are very serious in nature but at the same time their conviction should be based upon the materials on record only. 9. In view of discussions made above, I find that the prosecution suffers materially as the statement of Manoj Kumar Sinha having been accepted, was made while in custody of the informant and police. 9. In view of discussions made above, I find that the prosecution suffers materially as the statement of Manoj Kumar Sinha having been accepted, was made while in custody of the informant and police. I further find that the learned trial court has not questioned Manoj on this point that he has disclosed the involvement of other appellants in this offence. Further that any such letter for the demand of ransom and the recovery of boys could not be proved beyond doubts. The prosecution has also not been able to examine the I.O. and another victim Sagar Guha without any explanation. As such I find that the prosecution has not produced material witnesses to support its case and did not bring on record the letter of demand. In that view of the matter, I find and hold that the prosecution in the present case has not been able to bring home charges against the appellants beyond reasonable doubts. 10. In the result, all these appeals are allowed and judgment of conviction and sentence dated 3.9.2002 and 4.9.2002 passed by the learned court below is set aside. The appellants Shankar Mallah and Manoj Kumar Sinha being on bail, are discharged from the liability of their bail bonds. Appellant Yakub Ansari is in jail, he is directed to be released forthwith, if not wanted in any other case.