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2007 DIGILAW 504 (JHR)

Samir Kumar Mukherjee v. State of Jharkhand

2007-06-22

D.G.R.PATNAIK, D.K.SINHA

body2007
Judgement D. G. R. PATNAIK, J. :- Petitioner has preferred this revision application against the judgment of acquittal dated 4.8.2003 passed by learned Sessions Judge, Deoghar in Sessions Case No. 75 of 2002, whereby opposite party No. 2 Rajendra Thakur was acquitted from the charges for offences under Sections 364A/34, 302/34 and 201/34, IPC. 2. Case against the accused persons was registered on the basis of the F.I.R. lodged by the present petitioner at the police station in respect of kidnapping of his minor son Arpan Mukherjee alias Jay aged 11 years in the evening of 9-10-2001. As per the allegation in the F.I.R., the minor boy had returned home from the school in the afternoon of 9-10-2001 and at about 4.00 p.m. he left home telling his mother that he is going to visit his friend Sunil Das nearby and would return within 10 minutes, but he did not return. About 5.30 p.m. his friend Sunil Das came to the house of Arpan asking Arpan's mother regarding the whereabouts of Arpan, but the mother replied that her son had gone to his (Sunil's) house. A few moments later, Arpan's mother Sujata Mukherjee (PW8) found an envelope containing a letter lying on the ground near the gate of her house. She gave the letter to her husband, who had by then returned home from work. On reading the letter, father of the boy namely Sameer Kumar Mukherjee (PW9) realized that it was a threatening letter containing demand for ransom money and that his son Arpan has been kidnapped by some criminals. A demand for a sum of Rs. 2.00 lakhs was made in the letter and the same was ordered to be kept near the electric pole located near the house of one Madan Mohan Prasad by 8.00 p.m. The letter also warned not to inform the police. The father Sameer Kumar Mukherjee along with his neighbouring residents namely Sanjay Kumar Mandal (PW4) and Rajesh Periwal (PW) (sic) went in search of his son Arpan to the house of Sunil Das, but Sunil Das was not available in his house. His father had informed that Prakash Das and Amit Gupta (both friends of Sunil Das) had come to call Sunil Das and both of them had gone together and have not returned home. His father had informed that Prakash Das and Amit Gupta (both friends of Sunil Das) had come to call Sunil Das and both of them had gone together and have not returned home. Sameer Kumar Mukherjee and others thereafter proceeded to the house of Prakash Das, but he was also not found at his house. While returning, they saw Prakash Das, Amit Gupta and Rajesh Periwal entering into the house of the co-accused Deo Krishna Prasad alias Laloo (appellant) (sic). When despite such, Arpan was not traced out, his father accompanied by Santosh Kumar Maheshwari (PW6), Hiramani Jha (PW7) and Dilip Periwal (PW5) went to the residence of the Superintendent of Police, Deoghar and on being informed that the officer was out of Station, they came to the house of Dy. S. P. who directed them to go to the police station to lodge a complaint. Accordingly, a written report was lodged by Arpan's father Sameer Kumar Mukherjee (PW9) at the Police Station along with ransom letter received by him. Initially, no suspicion was raised against anybody. Sunil Das and Arpan were friends from the time when the two families lived in different portions of the rented house within the same mohalla and after Arpan's father had constructed his own house, his family shifted to the new house. On returning home, he found several persons waiting at his house including one Jago Devi (PW2) who informed that she had seen Sunil Das dropping a letter at the gate of his house. The informant and others again went in search of Arpan and in course of his search, they were informed by one Suresh Ram (PW 1) that he had seen Arpan and Sunil going together in the alley of Dr. Raman Kumar and that he had seen Prakash Das, Amit Gupta, Rajendra Thakur and Deo Krishna Prasad alias Laloo (appellant) (sic) waiting in the alley. When the informant proceeded to the house of Deo Krishna Prasad, he saw Rajendra Thakur and Amit Gupta from some distance and thereafter, all of them including Prakash Das and Sunil Das had entered into the house of Deo Krishna Prasad. On this information, the informant proceeded to the house of Deo Krishna Prasad. When the informant proceeded to the house of Deo Krishna Prasad, he saw Rajendra Thakur and Amit Gupta from some distance and thereafter, all of them including Prakash Das and Sunil Das had entered into the house of Deo Krishna Prasad. On this information, the informant proceeded to the house of Deo Krishna Prasad. However, no information regarding the whereabouts of Arpan could be obtained during the whole evening and even till the next day and, therefore, in compliance of the demand contained in the ransom note, a sum of Rs. 2.00 lakhs kept in a bag was placed near the electric pole at about 8.00 p.m. A watch was kept at a distance to see as to who comes to receive the bag, but when nobody arrived there, the informant along with the police returned. On the next morning i.e. on 11-10-2001 at about 6.30-7.00 am. Sunil Das and Deo Krishna Prasad were seen in the custody of the police proceeding along the alley of Dr. Raman Kumar. The informant and other witnesses followed them. They came to a dilapidated house located near the house of Deo Krishna Prasad. The gate of the house was locked which was broken open and on entering the house, the dead body of Arpan was found lying by the side of the wall and his slippers were also seen lying nearby and there were marks of injury on the neck of the dead body. After obtaining photographs of the dead body and after completing inquest, police forwarded the dead body for post-mortem examination. 3. Altogether 14 witnesses were examined at the trial by the prosecution including the informant (PW9), informant's wife (PW8), doctors who had conducted the post-mortem examination on the dead body of the deceased (PW 11, PW 12 and PW 14) and the investigating officer (PW 13). Besides oral evidences of the witnesses, prosecution had also adduced confessional statement of the co-accused persons namely Prakash Das and Deo Krishna Prasad recorded under Section 164, Cr. P.C. and the Magistrate (PW 10) who had recorded their statements. The inquest report pertaining to the inquest of the dead body of the deceased, the post-mortem report regarding the autopsy conducted on the dead body of the deceased and the seizure list pertaining to seizure of certain articles recovered from the alleged place of occurrence, were also adduced in evidence. 4. The inquest report pertaining to the inquest of the dead body of the deceased, the post-mortem report regarding the autopsy conducted on the dead body of the deceased and the seizure list pertaining to seizure of certain articles recovered from the alleged place of occurrence, were also adduced in evidence. 4. The Trial Court on considering the evidences on record, had recorded its findings that strong circumstantial evidence leading to the guilt of the co-accused Deo Krishna Prasad alias Laloo in the planning of kidnapping and murder of the deceased, was brought out from the evidences on record and accordingly, convicted and sentenced him for the aforesaid offences. However, finding the evidences inadequate and not sufficient to prove guilt beyond reasonable doubt against the co-accused, namely, opposite party No. 2 Rajendra Thakur, learned Trial Court acquitted him from all the offences for which he was charged with. 5. Petitioner has challenged the impugned judgment of acquittal on the ground that the learned Trial Court has completely erred in scrutinizing the materials available on record against the opposite party No. 2. Shri K. P. Deo, learned counsel appearing for the petitioner, invites attention to the evidences of the informant (PW9), informant's wife (PW8) and that of the investigating officer (PW 13) and argues that all these three witnesses have specifically referred to the name of the opposite party No. 2 and have categorically stated that the opposite party No. 2 was actively involved in the kidnapping and subsequent murder of the deceased. Learned counsel adds further that the learned Trial Court has misdirected itself by ignoring the evidences of PW1 and PW3 merely because they were declared hostile by the prosecution, without considering the fact that both the witnesses have corroborated the testimony of the informant and his wife on the point of involvement of opposite party No. 2 in the offence. Likewise, the evidence of PW7 has also been overlooked by the learned Trial Court and has wrongly been recorded in the impugned judgment that except the informant and his wife, no other witness has referred to the name of opposite party No. 2. Likewise, the evidence of PW7 has also been overlooked by the learned Trial Court and has wrongly been recorded in the impugned judgment that except the informant and his wife, no other witness has referred to the name of opposite party No. 2. Reading out the evidences of this witness, learned counsel submits that it has come in the evidence of PW7 that co-accused Deo Krishna Prasad and the opposite party No. 2 Rajendra Thakur were present at some distance when the deceased was being taken away from his house by co-accused Sunil Das and later, this witness also saw the opposite party No. 2 in the company of the co-accused Sunil Das, Prakash Das and Amit Gupta entering into the house of the co-accused Deo Krishna Prasad. Learned counsel further explains that the evidences also suggest that as per the statements of the co-accused Sunil Das and Prakash Das, the deceased was taken by them along with the other accused persons to the dilapidated house and all of them had entered into the house by scaling over the wall and thereafter, at the instance of Deo Krishna Prasad, the deceased was killed by Sunil Das, Prakash Das and Amit Kumar Gupta. Learned counsel argues that these evidences are clear and categorical and sufficient to confirm that the opposite party No. 2 was also actively involved in the conspiracy hatched out by Deo Krishna Prasad in kidnapping and murder of the deceased. 6. Learned counsel for the opposite party No. 2, on the other hand, argues vehemently that the instant revision application is entirely without substance and grounds advanced by the petitioner are totally baseless and misconceived. Referring to the impugned judgment of the Trial Court, learned counsel argues that the Trial Court had considered the evidences of each and every witnesses adduced by the prosecution in proper perspective and it would be incorrect to say that the evidences of the hostile witnesses has been totally ignored by the Trial Court. Learned counsel explains that admittedly, the case of the prosecution depends entirely on circumstantial evidence and statements of two co-accused persons namely Sunil Das and Prakash Das recorded under Section 164, Cr. Learned counsel explains that admittedly, the case of the prosecution depends entirely on circumstantial evidence and statements of two co-accused persons namely Sunil Das and Prakash Das recorded under Section 164, Cr. P.C. had constituted part of material evidence of the prosecution against three accused persons namely, Sunil Das, Prakash Das and Amit Kumar Gupta, but there is no cogent and reliable evidence of any incriminating nature against the opposite party No. 2 in the entire evidence of the prosecution's witnesses. Learned counsel explains that even in their respective statements recorded under Section 164, Cr. P.C., neither of the two co-accused persons have referred to the name of the opposite party No. 2 at all, although they had referred to the name of the co-accused namely, Deo Krishna Prasad alias Laloo. Learned counsel adds further that merely on the basis of the statements of the informant and his wife that the opposite party No. 2 was seen in the company of the co-accused Deo Krishna Prasad alias Laloo at a distance at the time when the deceased was being taken away from his house by the co-accused Sunil Das, cannot by any stretch of imagination, lead to any conclusive inference that the opposite party No. 2 was in any manner involved in the offence. 7. On reading the evidence of the witnesses, it appears that the name of the opposite party No. 2 was referred to by the witnesses namely, the informant (PW9), informant's wife (PW8) who had claimed that the opposite party No. 2 along with the co-accused Deo Krishna Prasad was seen by some witnesses standing at a distance at the time when the deceased was being taken by the co-accused Sunil Das and the same witnesses had also seen the opposite party No. 2 and other co-accused persons hurriedly entering into the house of co-accused Deo Krishna Prasad on seeing the informant and other persons, who had gone in search of the missing boy. The witnesses from whom the informant and his wife claim to have received information regarding the presence of the opposite party No. 2 in the company of the co-accused persons, have been declared hostile by the prosecution on account of their failure to support the prosecution' case. The witnesses from whom the informant and his wife claim to have received information regarding the presence of the opposite party No. 2 in the company of the co-accused persons, have been declared hostile by the prosecution on account of their failure to support the prosecution' case. Though, attention of the investigating officer was invited by the prosecution to the statements of the hostile witnesses recorded in course of investigation and the investigating officer had affirmed that the witnesses had stated before him of having seen the opposite party No. 2 in the company of the other co-accused persons, but such confirmation of the statements of the hostile witnesses by the investigating officer and the assertion of such statement made by the informant and his wife, cannot offer any assistance to the prosecution, because the witnesses do not acknowledge to have given any incriminating information against the opposite party No. 2 either to the informant or his wife or even to the police officer. Furthermore, it would be significant to note that in their respective statements recorded under Section 164, Cr. P.C., neither of the co-accused persons namely, Sunil Das and Prakash Das has made any reference whatsoever to the name of the opposite party No. 2, although they have referred to the name of other accused persons as being involved in the offences. As to what could be the evidentiary value of the statement of the co-accused persons recorded under Section 164, Cr. P.C. for placing reliance against the co-accused persons, it would not be relevant for consideration on the issue relating to the opposite party No. 2, but suffice it to say that since the statements of the co-accused persons recorded under Section 164, Cr. P.C. do not refer to the name of the opposite party No. 2 at all, such statements are totally irrelevant and of no consequence against the opposite party No. 2. 8. We find that the learned Trial Court has made elaborate and detailed discussion on the evidence of the witnesses and has rightly observed that though the informant and his wife have referred to the name of the opposite party No. 2, but the evidence adduced by the prosecution is highly insufficient and inadequate and does not prove guilt against the opposite party No. 2 for any of the offences for which he was charged with beyond reasonable doubt. We do not find any infirmity or impropriety in the findings recorded by the Trial Court in respect of the opposite party No. 2. We find that the opposite party No. 2 did deserve to be acquitted from the charges in absence of any cogent and reliable evidence brought out by the prosecution against him. 9. For the reasons discussed above, we find no merit in this application. Accordingly, this application is dismissed. Application dismissed.