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2014 DIGILAW 242 (GAU)

Abani Baishya v. State of Assam

2014-02-26

K.SREEDHAR RAO, PRASANTA KUMAR SAIKIA

body2014
JUDGMENT Prasanta Kumar Saikia, J. 1. This appeal is directed against the judgment dated 09.03.2009 passed by Addl. Sessions Judge, FTC, Kamrup, Guwahati in Sessions Case No. 212(K)/2003, convicting one Sri Abani Baishya of offence under Section 364A IPC and sentencing him to imprisonment for life and to pay a fine of Rs. 2,000/- for offence aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgment, appellant Abani Baishya (herein after referred to as the 'accused person') preferred this appeal citing several infirmities in the judgment under challenge. 2. The brief facts necessary for disposal of the present proceeding are that on 13.02.2001 one Sri Dinesh Baishya lodged an FIR with the O/C Bharalamukh P.S. stating that his son Sri Deepjyoti Baishya had gone missing since the noon of 10.02.2001. It has been alleged that since before the incident in question, he had been working in a PCO at Kedar Road, Guwahati. On 10.02.2001, he went to his workplace but did not return home till the time of filing of the FIR on 13.02.2001. 3. When the father of the boy contacted the owner of the PCO, he came to know that the son of the informant had gone to meet his cousin Sri Abani Baishya, who asked him to meet him near the State Zoo for some employment related discussions. On 11.02.2001, the informant received a phone call from Abani Baishya, who happens to be his nephew and he told him over phone that his son was in his house at Tamulpur and would return home next day, that is, on 12.02.2001. 4. On the next day, that is on 12.02.2001, during the absence of the informant from his house, an unknown person made a call to his house which was received by his daughter. The unknown caller told his daughter that a letter, addressed to the informant, had been dropped in the letter box of his office. Similar call was made to the office of the informant. However, as the informant was not in the office during such time, so the letter was sent to his house through his office peon. 5. On the perusal of the letters, it was found that such letters had been sent by Rabha National Security Force (in short 'RNSF') and such letter was sent demanding ransom from the informant as a price for release of his son. 5. On the perusal of the letters, it was found that such letters had been sent by Rabha National Security Force (in short 'RNSF') and such letter was sent demanding ransom from the informant as a price for release of his son. The said outfit also claimed responsibility for abducting the son of the informant. On the receipt of the FIR, so lodged, O/C Bharalamukh P.S. registered a case against accused Abani Baishya since he was suspected to be involved in the crime aforesaid. 6. During the course of investigation, Police made a search in the house of Abani Baishya at Tamulpur but he was not found in his house during such time. As the investigation proceeds from stage to stage, statements of several witnesses were recorded and letters with envelops were seized by police. In the meantime, police got information that the son of the informant was detained in jungle near Basistha. 7. Accordingly, a rescue operation was carried out by police with the help of para military force in the place where the son of the informant was suspected to have been kept in confinement. When such place was raided by police and paramilitary force, there was exchange of fire and in that process. 4 (four) culprits, responsible for guarding the son of informant in the aforesaid place of confinement were killed. However, the boy was recovered from the confinement without any harm to him. 8. Immediately, thereafter, the police again searched the house of the accused person but he was not found in his house. However, at long last, he was apprehended and was sent to judicial custody. In the meantime, the I.O. completed the investigation, submitted charge-sheet under Section 364A IPC against the accused person and sent him to the Magistrate to stand his trial. 9. The Magistrate before whom the charge-sheet was so laid committed the case to the Court of Sessions since the offence under Section 364A IPC is exclusively triable by the Court of Sessions. Learned Sessions Judge on the receipt of the case on commitment, transferred the case to the file of learned Addl. Sessions Judge, FTC, Kamrup, Guwahati for disposal. Learned Addl. Learned Sessions Judge on the receipt of the case on commitment, transferred the case to the file of learned Addl. Sessions Judge, FTC, Kamrup, Guwahati for disposal. Learned Addl. Sessions Judge, FTC, Kamrup, Guwahati on the receipt of the case on transfer, framed charge under Section 364A IPC and charge, so framed, on being read over and explained to the accused, he pleaded not guilty and claimed to be tried. 10. During trial, the prosecution side has examined as many as 9 witnesses including the I.O. and the informant. The statements of the accused person under Section 313 Cr.P.C.. was recorded. His plea was of total denial. However, he declines to adduce any evidence of his own. On the conclusion of trial, learned Addl. Sessions Judge convicted the accused of offence under Section 364A IPC and sentenced him punishment as aforesaid. It is that judgment which has been assailed in the present appeal. 11. Opening up the argument on behalf of the appellant Mr. M. Choudhury, learned counsel for the appellant contends that the judgment under challenge is unsustainable in law since it is riddled with several infirmities of extremely serious nature. In that connection, it has been pointed out that the entire prosecution case was founded on the testimony of PW-3, Sri Deepjyoti Baishya, the victim of the alleged incident. But his evidence is unreliable for the reasons more than one. 12. In that connection, it has been pointed out that though he was said to have been in captivity for about 1 month and 6 days, he did not utter a single word implicating the accused as being the person responsible for kidnapping him. It has also been stated that the son of the informant was desirous of getting a job in Army and for that purpose, he was ready to spend good amount of money. Since his father did not give him the money required to secure a job in Army, he staged a drama to realize the money required for getting a job in Army. The evidence on record clearly makes out such state of affairs. 13. It is also the case of appellant that after being kidnapped by the abductors, his son wrote a letter to his father requesting him to arrange fund for his release. However, said letter was delivered to the police by the father of the informant during the course of investigation. 13. It is also the case of appellant that after being kidnapped by the abductors, his son wrote a letter to his father requesting him to arrange fund for his release. However, said letter was delivered to the police by the father of the informant during the course of investigation. Unfortunately, such a vital document was not produced before Court during the trial. This not only casts a serious doubt about the veracity of the prosecution case but it also establishes that son of the informant staged a drama to secure the money from his father so that he could manage a job for him in Army. 14. Further case of the appellant was that there was no iota of demand for ransom for release of the son of the informant and as such, even if one assumes for the sake of argument for a moment that the accused was responsible in some way or other for abduction of the son of the informant, yet, materials on record no way make out the charge of offence under Section 364A IPC against the accused person. He, therefore, submits this Court to acquit the accused person of offence under Section 364A IPC on setting aside the judgment under challenge. 15. In support of his case learned counsel for the appellant has referred us to the decision of Hon'ble the Supreme Court in the case of Viswanath Gupta v. State of Uttaranchal (2007) 11 SCC 633 . 16. On the other hand, learned Addl. P.P., Mr. K.A. Mazumdar, submits that learned trial Court rendered the judgment under challenge on the basis of evidence on record keeping in view the various laws which hold the field in question and as such, the judgment, assailed in this appeal, does not invite any interference from this Court of appeal and he, therefore, urges this Court to dismiss the appeal on affirming the judgment of the trial Court. 17. In support of his contention, the learned counsel for State respondent has referred us to the decision of Hon'ble Supreme Court of India in the case of Malleshi v. State of Karnataka reported in (2004) 8 SCC 95 . The relevant part is reproduced below: 12. 17. In support of his contention, the learned counsel for State respondent has referred us to the decision of Hon'ble Supreme Court of India in the case of Malleshi v. State of Karnataka reported in (2004) 8 SCC 95 . The relevant part is reproduced below: 12. To attract the provisions of Section 364A what is required to be proved is; (1) that the accused kidnapped or abducted the person; (2) kept him under detention after such kidnapping and abduction; (3) that the kidnapping or abduction was for ransom. Strong reliance was placed on a decision of the Delhi High Court in Netra v. State (NCT of Delhi) to contend that since the ransom demand was not conveyed to the father of the PW-2, the intention to demand was not fulfilled. 13. To pay a ransom as per Black's Law Dictionary means "to pay price or demand for ransom". The word "demand" means "to claim as one's due"; "to require", "to ask relief; "to summon"; "to call in Court"; "and imperative request preferred by one person to another, under a claim of right, requiring the latter to do or yield something or to abstain from some act"; "and asking with authority, claiming or challenge as due". The definition as pointed out above would show that the demand has to be communicated. It is an imperative request or a claim made. 14. Netra Pal case was one where a child was kidnapped. The court found as a fact that since the victim was a child, demand for ransom could not have been made to him and only the demand to pay the ransom could have been made to his guardians. In that factual background it was held that the offence was not under Section 364A but was under Section 362 IPC. Accordingly, conviction of the accused was altered to offences relatable to Sections 363 and 365 IPC. 18. We have carefully considered the rival submissions having regard to the evidence on record as well as the judgment under challenge. We have found the star campaigner in the case under consideration is none other than PW-3, the victim of the alleged incident. He is found saying that the accused, being his close relative, was a regular visitor to their house and was aware of the fact that he was looking for a job in the Army. We have found the star campaigner in the case under consideration is none other than PW-3, the victim of the alleged incident. He is found saying that the accused, being his close relative, was a regular visitor to their house and was aware of the fact that he was looking for a job in the Army. Accused also told him that he had acquaintances with some Army officers and was in a position to arrange a job for him in Army. 19. Accordingly, it was decided that on 10.02.2001, they would go to Army office, situated at Basistha in the outskirt of city of Guwahati. Therefore, on 10.02.2001, the victim went to State Zoo where he met the accused person. After he met the accused at Zoo Road, they went to Beltola by city bus wherefrom they started proceeding to their destination which is Army office Beltola in an Autorikshaw. 20. According to PW-3, after travelling for sometime in the autorikshaw, they had crossed the Army camp, Basistha. When PW-3 enquired the accused as to place where they were proceeding then since they had already crossed the place where Army office, Basistha is situated, the accused replied that he would at first meet a friend of him near the Stone quarry on the side of the hills. On reaching such place, they got down from the autorikshaw and started proceeding to a hilly area on foot. 21. Soon thereafter, PW-3 noticed that 4 tribal boys started following them. He enquired the accused person regarding the boys who were following them to which accused replied that they were only wood cutters. PW-3 suspected those boys to be miscreants and as such, he wanted to come back. In the meantime, those 4 (four) tribal boys surrounded them, put a pistol on his head and told him that he was in their custody. Afterward, he was taken to tribal village where he was kept in confinement for that night. 22. Next day, he was taken to deep jungle where he was kept there for some time. After about 1 month and 6 days, Army and Police personnel raided the area where he was kept and in that process, he was recovered but the persons guarding him got killed in the encounter. 22. Next day, he was taken to deep jungle where he was kept there for some time. After about 1 month and 6 days, Army and Police personnel raided the area where he was kept and in that process, he was recovered but the persons guarding him got killed in the encounter. It is also in his evidence that on the day, on which the PW-3 was recovered from confinement, the accused left such place stating that he would have some discussion with his father for his release from the captivity. 23. PW-4, Dinesh Ch. Baishya, informant and father of the victim, deposes that the accused used to visit his house quite regularly. One day, the accused told his son over phone that if he could take him (the accused) to Basistha Army hospital, he could arrange a job for him in Army. On coming to know the clutches of the accused person on Army, his son left his house but did not return home. 24. Though they made a series of enquiries to find out the whereabouts of his son yet such efforts yielded no result. Next day at about 10 a.m., the accused made a telephone call to him and told him that his son was at Tamulpur and would return home next day. Next day, his daughter got a call from unknown person who told her that a letter, addressed to him, was left in the letter box of his office. The letter was subsequently delivered to him through his office peon which he proved as Ext. 1. 25. He also received some other letters. The letters and the envelopes were seized by police during the course of investigation which he proved as Material exhibit 1 to Material exhibits On 17.01.2001, at around 10.00 a.m., one unknown boy came to his house and told him to go to Basistha for some negotiations for release of his son from the captivity of the abductors. He was however, caught and handed over to police. 26. Thereafter, a joint operation of Army and Police was conducted and his son was recovered. Once his son was released from the captivity, he came to know from him that on the fateful day, the accused took his son to Basistha. He was however, caught and handed over to police. 26. Thereafter, a joint operation of Army and Police was conducted and his son was recovered. Once his son was released from the captivity, he came to know from him that on the fateful day, the accused took his son to Basistha. Once they reached such place, three other persons joined them who took his son to jungles where he was kept for a very long period. The suggestion that he sent his son to Basistha on the fateful day to arrange a job for him was denied by PW4. 27. PW2 Smti. Ikon Baishya was the wife of the informant. According to her, the victim had applied for a job in Army. The accused indicated that he could help him in getting a job in Army. On 08.02.2001, the accused telephoned her and told her that he wanted to take her son to Army office but the proprietor of the PCO where the victim was working during that time did not grant him leave. On 09.02.2001, the accused again telephoned her son and it was decided that the accused would take her son to Army office on 10.02.2001 so that a job in Army could be arranged for him. 28. When his son did not return home on 10.02.2001, the matter was reported to her husband who came next day in the morning. Though they made a search for their missing son, they could not trace him out. On 12.02.2001, they received a letter whereby they were asked to pay Rs. 10,000,00/- for the release of their son. The said letter was written by Rabha National Security Force (RNSF). After being kept in confinement for about 1 month and 5 days, her son was recovered by Army/Police authority. 29. PW-1 Sri Khanindra Kalita is the owner of the PCO where the victim was working during the time under consideration. According to him, the victim worked in his PCO for about 2 months in 2001. While he was so working in his PCO, he sought leave for one day but he refused to grant him such leave. On the other hand, PW-5 Sri Nagen Ch. Baishya PW-6, Sri Umesh Baishya, PW-7 Sri Dhirendra Nath Deka are heard saying that they came to know that son of the informant (PW-4) was kidnapped. 30. While he was so working in his PCO, he sought leave for one day but he refused to grant him such leave. On the other hand, PW-5 Sri Nagen Ch. Baishya PW-6, Sri Umesh Baishya, PW-7 Sri Dhirendra Nath Deka are heard saying that they came to know that son of the informant (PW-4) was kidnapped. 30. PW-7 also deposes that during the time under consideration, the accused lived in his house as a tenant. During such time, some Bodo boys used to visit the house of the accused person quite regularly. PW-8 Sri Khagendra Nath Talukdar is the police officer who conducted investigation of the case under consideration. PW-9 Sri Jagat Ch. Borphukan, Inspector of Police, deposes that on going through the case diary, he submitted charge-sheet against the accused person. 31. On a very careful perusal of the evidences of PW's, particularly PW-3, we have found that on the fateful day, at about 10 am, the accused took the victim to Army office, Basistha, Guwahati. His evidence further reveals that though they were supposed to go to Army office Basistha, the accused took him to a place far away there-from. He, in-fact, took PW-3 to an isolated hilly area to be followed by some tribal boys who ultimately surrounded him and took him to jungle and kept him there for some time till he was recovered by the police and army personnel. 32. The evidence of PW 2, PW-3 and PW-4 again reveals that victim was quite crazy to join Army and was ready to do everything to get a job in security establishment. The evidence of PW-1 too supported such projections made by PW-2, PW-3 and PW-4. Their evidence further shows that the accused took the advantage of such situation since he promised to secure a job for him in Army stating that he had some acquaintances in the Army who could arrange a job for him in Army. 33. Even on the fateful day, the accused promising a job for PW-3 took him to a secluded place near Basistha wherefrom he was ultimately kidnapped by some miscreants. When all these revelations are read together, it would become clear that the accused was the person who lured the victim to go to some isolated place near Army Office, Basistha on the promise of providing him a job in Army. 34. When all these revelations are read together, it would become clear that the accused was the person who lured the victim to go to some isolated place near Army Office, Basistha on the promise of providing him a job in Army. 34. Such revelations also demonstrates that the victim was taken to such place to facilitate his abduction from such place and to take him to jungle so that he could be detained there till the realization of ransom from the father of the victim. All these speak loud and clear that the accused was in hand in glove with the other culprits who actually abducted the victim from a place near Basistha in the outskirt of city of Guwahati. 35. We may note here that there is indisputable evidence that on 11.02.2001 the accused made a telephone call to the father of the victim and told him that his son was at Tamulpur and would return home next day. However, such assurance was entirely false since when the accused made such call, the victim was not in Tamulpur but in the deep jungle in the custody of abductors. This only shows that the accused was one of the persons who planned the abduction of son of the informant on 10.02.2001. 36. It is worth noting here that at no point of time during trial, the accused offered any explanation as to why he made such a misleading telephone call to the father of the victim on 11.02.2001. In absence of any explanation in that regard, it can very well be presumed that the accused was closely associated with the other culprits who took active part in abducting the son of the PW-4 on 10.02.2001. 37. One may note here that on the day, when the victim was rescued by Army and Police authority, the accused left the place where the victim was kept in confinement. He left such place on the promise that he would have some discussions with the father of the victim qua his release from the captivity. His leaving such place on the day on which the victim was rescued from such captivity by the authorities concerned again shows that the accused acted in tandem with other abductors who abducted the son of the PW-4. 38. On the perusal of the evidence on record, it is found that the accused absconded soon after the alleged incident. His leaving such place on the day on which the victim was rescued from such captivity by the authorities concerned again shows that the accused acted in tandem with other abductors who abducted the son of the PW-4. 38. On the perusal of the evidence on record, it is found that the accused absconded soon after the alleged incident. Absconding after the incident may not always be a testimony of absconder being in crime. But in the present case, absconding of the accused raised a strong presumption about his being one of the perpetrators of the crime in question, more so, when he kept on misleading the victim as well as his parents before and after the incident in question. 39. We have already found that the boys who kidnapped the PW-3 were tribal boys. On the perusal of the record, we have also found that during the time under consideration, some Bodo boys used to visit the rented house of the accused person quite regularly, as disclosed by PW-7. The visit of some Bodo boys to the rented house of the accused person regularly, in the facts and circumstances of the case, suggests very strongly about the accused being in hand in glove with the perpetrators of crime who abducted the son of the informant on 10.02.2001. 40. In the teeth of above disclosures, we are to conclude that the accused person was closely associated with other culprits who abducted PW-3 from some hilly area near Basistha, Guwahati on 10.02.2001. 41. One may also note here that there is very credible evidence to show that abduction was done to realize the ransom from the father of the victim. The evidence of PW-2, PW-3 and PW-4 makes such position more than clear. 42. Since there is evidence on record to show that accused took active part in abducting the son of PW-4 on 10.02.2001, since the son of the PW-4 had been in detention over a long period of time and since there is evidence to show that such abduction was made in order to realize money from the father of the victim, we are of the firm view that prosecution has successfully proved the charge under Section 364A IPC against the accused person. 43. 43. Though the appellant has placed reliance on the decision of Hon'ble Supreme Court in Viswanath Gupta (supra), we have found that such a decision has no application to the case since the facts and circumstances of the aforesaid case are materially different from one we are seized with. 44. In the result, we have found that prosecution has successfully proved the charge under Section 364A IPC and as such, learned trial Court committed no wrong in convicting the accused of offence under Section 364A IPC and sentencing him to punishment as aforesaid. 45. Consequently, the appeal fails since it lacks merit. Return the LCR.