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2015 DIGILAW 532 (TRI)

Rajesh Debbarma v. State of Tripura

2015-07-15

S.TALAPATRA, U.B.SAHA

body2015
JUDGMENT U.B. Saha, J. 1. The instant appeal is preferred by the convict appellant challenging the judgment and order dated 02.09.2002 passed by the learned Additional Sessions Judge, West Tripura, Khowai in S.T.40 (WT/K) of 2002 where under the learned Additional Sessions Judge convicted the appellant under Section 364(A) of the Indian Penal Code and sentenced him to suffer R.I. for life and also sentenced to pay a fine of Rs. 1 lakh in default to suffer further R.I. for 10 years. 2. Heard Mr. S.Sarkar, learned counsel appearing for the appellant as well as Mr. RC Debnath, learned Additional Public Prosecutor appearing for the State respondent. 3. The prosecution case in short is that, one Smt. Nisha Saha (PW-2) lodged a complaint to the Officer In-charge, Teliamura police station stating inter alia that her husband Sri Jahar Saha (PW-8) went to the village of 37 Mile to buy old damaged irons along with his companion Sri Dilip Das (Sarkar) (PW-9) at about 7.30 a.m. in the morning of 09.02.2002. Her husband, Jahar Saha and his companion Dilip Das did not return till 11.00 a.m. of 10.02.2002. It is also stated that she had learnt that three tribal youths of B.N.C.T. extremists group kidnapped/abducted her husband and his companion Dilip Das from the vicinity of Mungiabari school for realizing ransom. 3.a. Upon receipt of the written complaint/ejahar of PW-2, the police registered a specific case and, thereafter on completion of the investigation filed charge sheet against the convict appellant along with nine others under Section 364(A) of the IPC. The case was committed to the court of learned Additional Sessions Judge, West Tripura, Khowai for trial. 3.b. The learned Additional Sessions Judge, framed charge against the accused namely Rajesh Debbarma, Surendra Debbarma, Mangal Debbarma, Sanjit Debbarma, Bimal Debbarma, Arun Debbarma, Sujit Debbarma and Sarath Debbarma, under Section 364(A) of the IPC to which they pleaded not guilty and claimed to be tried. 3.c. To bring home the charge, the prosecution examined as many as ten witnesses including the Investigating Officer. On the other hand, the accused persons did not adduce any evidence in their defence but from the trend of the cross examination of the witnesses and the examination of the accused persons under Section 313 of the Cr.P.C it reveals that the defence case of the accused persons was that of total denial. On the other hand, the accused persons did not adduce any evidence in their defence but from the trend of the cross examination of the witnesses and the examination of the accused persons under Section 313 of the Cr.P.C it reveals that the defence case of the accused persons was that of total denial. 3.e. The learned trial Court after considering the evidences on record acquitted all other accused persons but convicted the present accused appellant under Section 364(A) of the IPC and sentenced him to suffer R.I. for life and to pay a fine of Rs. 1 lakh in default to suffer further R.I. for 10 years. Being aggrieved, the appellants preferred this appeal. 4. Mr. Sarkar, learned counsel appearing for the convict appellant submits that even if the evidence of all the witnesses are believed then also no case is made out against the convict appellant under Section 364(A) of the IPC at best a case is made out under Section 365 of the IPC. He has taken us to the evidence of PW-2 and PW-3, namely Smt. Nisha Saha and Smt. Mithu Debnath, who are the wives of PW-8 (Jahar Saha) and PW-9 (Dilip Das), the persons who were abducted and those witnesses did not state anything regarding the ransom as well as against the convict appellant. He further submits that the learned trial Court convicted the present convict appellant only relying upon the evidence of PW-9 (Dilip Das) who in his evidence stated that he came to learn from his family members that they have collected money and paid the same to the extremists for their release and accordingly they were released by the extremists. But none of the family members were examined except PW-3 (Smt. Mithu Debnath) who did not say anything about the collection of money and paying the same to the extremists. Thus, there is no evidence regarding ransom. 5. Mr. Debnath, learned Additional Public Prosecutor in his usual fairness submits that except PW-9 no other witness stated anything about the ransom. 6. As the learned trial Court mainly relied upon the evidence of PW-9 while convicting the appellant, it would be proper on our part to reproduce the evidence of PW-9, which is as follows:- “I used to purchase old utensil from the villagers and used to sell them in the market at higher rate. 6. As the learned trial Court mainly relied upon the evidence of PW-9 while convicting the appellant, it would be proper on our part to reproduce the evidence of PW-9, which is as follows:- “I used to purchase old utensil from the villagers and used to sell them in the market at higher rate. Jahar Saha also used to carry same nature of business. 4/5 months back at about 9 a.m. on a certain morning I along with Jahar Saha went to Mungiabari for purchasing old utensils and unused iron. At about 10/10.30 a.m. some tribal extremists kidnapped both of us at gun point. They took us in deep forest and kept in confinement for 29 days. After 29 days they have released us. After returning my house I came to learn from my family members they have collected money and paid the same to the extremists for our release and accordingly, we were released by extremists. I could identify Rajesh Debbarma as one of our kidnappers. Witness identified accused Rajesh Debbarma in the dock. Cross-Examination I did not state to I/O that accused Rajesh Debbarma has kidnapped me. I know Rajesh Debbarma is the leader of the extremists. I cannot say how much money was paid to the extremists and to whom it was paid. I did not state to I/O who told me that ransom was paid to the extremists. I have stated to police 4/5 miscreants had kidnapped me. It is not a fact that I was not kidnapped by Rajesh Debbarma and others”. 7. We have also gone through the judgment of the learned trial Court and it appears that the learned trial Court has convicted the appellant mainly on the basis of the evidence of PW-9, which we have quoted hereinabove. From the evidence of PW-9, it appears that PW-9 has no direct knowledge regarding the collection of money and paying the same to the extremists, rather PW-9 heard about the collection of money from his family members but none of the family members disclosed the said fact. As the evidence of PW-9 is totally hearsay evidence, it was not proper for the learned trial Court to rely upon such evidence without any corroboration from any other witness. 8. As the evidence of PW-9 is totally hearsay evidence, it was not proper for the learned trial Court to rely upon such evidence without any corroboration from any other witness. 8. For an offence under Section 364(A) of the IPC the first requirement is kidnapping/abduction or keeping a person in detention or abduction or threat to cause death for ransom but in the instant case there is no evidence that either the family members or the persons who were abducted paid any ransom to the accused appellant. Thus, according to us, the learned trial Court has committed an error in convicting the appellant under Section 364(A) of the IPC, hence the order of conviction and sentence passed by the learned trial Court is hereby set aside. 9. But from the evidence of PW-8 (Jahar Saha) it appears that they were kidnapped by some tribal extremists and they could identify the appellant Rajesh Debbarma. Therefore, according to us a case under Section 365 of the IPC is made out against the convict appellant. Therefore, the charge framed by the learned trial Court under Section 364(A) of the IPC is converted to one under Section 365 of the IPC and the accused appellant is convicted under Section 365 of the IPC. 10. The punishment for an offence under Section 365 of the IPC is imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. The present appellant is in custody since 15.03.2002 and has already suffered the sentence more than the period prescribed for an offence under Section 365 of the IPC. As the appellant has already suffered the sentence, he shall be released forthwith, if not, wanted in any other case. 11. In view of the above, the instant appeal is allowed. Send down the LCRs forthwith.