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2015 DIGILAW 885 (JHR)

Indradeo Vishwakarma v. State of Jharkhand

2015-07-29

PRAMATH PATNAIK, R.R.PRASAD

body2015
JUDGMENT : Both the criminal appeals, arising out of the same case, were heard together and are being disposed of by the common judgment. 2. These two appeals are directed against the judgment of conviction dated 6.7.2005 and order of sentence dated 12.7.2005 passed by the then Additional District and Sessions Judge, F.T.C.-6, Giridih in S.T. No. 24 of 2004, whereby the appellants namely, Munshi Tudu, Prakash Rai, Ram Chandra Rai and Dilip Rai, on being convicted for the offences punishable under Sections 395, 364A, 120B and 412 of the Indian Penal Code, were sentenced to undergo imprisonment for life for the offence under Section 364A of the Indian Penal Code and also to pay a fine of Rs. 1000/- with default clause and further to undergo rigorous imprisonment for a period of ten years for the offence under Section 395 of the Indian Penal Code and to pay a fine of Rs. 500/- with default clause. So far appellant-Indradeo Vishwakarma is concerned, he was also convicted for the said offences, except the offence under Section 412 of the Indian Penal Code and the quantum of sentence of the said offence is the same, which has been passed against the aforesaid appellants. 3. The case of the prosecution is that Ashok Yadav-P.W.4 had come to Koderma along with Om Prakash Baid-P.W.3 to attend the marriage ceremony of his relative. After attending marriage, they were returning to Giridih on 4.6.2003 on a Sumo vehicle being driven by Amjad Khan-P.W.5. At about 11:30 pm, when they reached near Ghundri culvert at Village Ghorthambha, they found the road being blocked by the trunk of a tree. As soon as the vehicle got stopped, the miscreants came there and took control of the vehicle. They made the driver to take the vehicle towards the forest. In the forest, they got the vehicle stopped and asked from the informant-Ashok Yadav-P.W.4 and also from Om Prakash Baid-P.W.3 as to who they are. Upon it, Ashok Yadav-P.W.4 told them that he is an agent of the bus whereas Om Prakash Baid-P.W.3 told them that he works as a Manager in the mine but by that time, the miscreants came to know from the driver that neither they are the Agent nor the Manager, rather Om Prakash Baid happenes to be the owner of the Shyam Rath Travel. Thereupon, the miscreants started, abusing and assaulting both of them and then they took them to a forest after making them blindfolded. They made them to sit over a hillock and asked for Rs. 20 lakhs. After keeping them an hour at that place, they let off Ashok Yadav-P.W.4 and also the driver-Amjad Khan-P.W.5. Thereupon, the informant-P.W.4 (Ashok Yadav) and Amjad Khan- P.W.5, came to Giridih where Ashok Yadav-P.W.4 on 5.6.2003 at about 3 pm gave his fardbeyan (Ext 1), which was recorded by one Naresh Pal Sinha-the then Officer In-charge of Dhanbad Police Station upon which a formal FIR was registered. 4. Said Naresh Pal Sinha-P.W. 7 took up the investigation during which, he arrested the appellants-Prakash Rai, Dilip Rai and Indradeo Vishwakarma on 8.7.2003 whereas the appellants- Ram Chandra Rai and Munshi Tudu were arrested on 15.7.2003 who were put on test identification parade on 29.9.2003 during which course, Om Prakash Baid-P.W.3 identified all the appellants. Subsequently, appellant-Indradeo Vishwakarma was also identified in the test identification parade by Ashok Yadav-P.W.4. The Investigating Officer also recovered the looted articles such as Mobile (Ext.A), Camera (Ext.B), Goggles (Ext.C) and Wrist Watch (Ext.D) from the possession of the appellants-Ram Chandra Rai, Munshi Tudu, Prakash Rai and Dilip Rai, respectively and seized it under Seizure Lists (Exts. 8, 5, 4 and 7). 5. Further case of the prosecution is that Om Prakash Baid-P.W.3 remained in captivity of the appellants for a period of one months and one day during which period a ransom amount of Rs. 2.25 lakhs was paid by Krishna Murari Baid-P.W.2, brother of Om Prakash Baid-P.W.3. However, when it was communicated to him by the appellants that the payment has been made to the wrong person he paid further amount of Rs. 2 lakhs and only thereafter the victim-Om Prakash Baid-P.W.3 was let off by the appellants. Meanwhile, the articles recovered from the possession of the appellants were put on the test identification parade, which was conducted by Triveni Kumar-P.W.6 during which P.Ws. 3, 4 and 5 identified the Mobile (Ext.A), Camera (Ext.B), Goggles (Ext.C) and Wrist Watch (Ext.D). 6. On completion of the investigation, when charge-sheet was submitted against the appellants, cognizance of the offences was taken against them and in due course when the case was committed to the Court of Sessions, the appellants were put on trial. 7. 3, 4 and 5 identified the Mobile (Ext.A), Camera (Ext.B), Goggles (Ext.C) and Wrist Watch (Ext.D). 6. On completion of the investigation, when charge-sheet was submitted against the appellants, cognizance of the offences was taken against them and in due course when the case was committed to the Court of Sessions, the appellants were put on trial. 7. During trial, the prosecution in order to prove its case, examined altogether 9 witnesses. Of them, P.W. 1-Deepak Baid, brother of the victim-Om Prakash Baid, has testified that a threatening calls were being made by one Sukhdeo Yadav for making payment of ransom whereby he conveyed that unless and until demand is made, they will not let off his brother-Om Prakash Baid. P.W. 2-Krishna Murari Baid (another brother of the victim-Om Prakash Baid) did testify that while he was at Raniganj, he came to know that his brother-Om Prakash Baid has been kidnapped. There he received a telephonic call whereby Rs.10 lakhs was demanded by the caller. While making call, the caller had extended threat that if the amount is not paid, the victim-Om Prakash Baid would be killed. Further he has testified that in spite of making payment of Rs. 2.25 lakhs, his brother was not let off and then it was communicated to him through telephonic call that the money has been paid to a wrong person and hence, they need to pay Rs. 2 lakhs more. Only when the payment was made, the victim-P.W. 3-Om Prakash Baid was let off. P.W. 3- Om Prakash Baid (victim) has testified about the manner in which they were accosted by the miscreants while they were returning to Giridih from Koderma and then they were taken to a forest where he along with Ashok Yadav-P.W. 4 was kept for an hour, but thereafter Ashok Yadav was let off and from him, a sum of Rs. 10 lakhs was demanded. They kept on changing the places of hideouts. One day he was taken on a motorcycle after being blindfolded and was dropped at a place by saying that the money has been paid. P.W. 4- Ashok Yadav-informant has testified in the same manner as he has made statement in his fardbeyan. P.W. 5- Amjad Khan did testify that when they were made captive, the miscreants took his wrist watch and the money. They were also asking for Rs. P.W. 4- Ashok Yadav-informant has testified in the same manner as he has made statement in his fardbeyan. P.W. 5- Amjad Khan did testify that when they were made captive, the miscreants took his wrist watch and the money. They were also asking for Rs. ten lakhs and were telling that if the money is not paid, they will be killed. However, he was let off by the miscreants. 8. After closure of the prosecution case, when the appellants were questioned under Section 313 of Cr.P.C. about the incriminating evidences appearing against them, they denied. 9. Thereupon, the trial court having placed its implicit reliance on the testimony of the victim-Om Prakash Baid (P.W.3) and also on the testimonies of the informant-Ashok Yadav (P.W.4) as well as P.Ws.1 and 2 testifying about the demand of ransom amount and the payment thereof and also the fact that the appellants had been identified by P.W.3 as the persons who were involved in the commission of the said offences and that the looted articles recovered from the appellants except Indradeo Vishwakarma, were identified by the witnesses, did find the appellants guilty for the offences under Sections 395, 364A and 120B of the Indian Penal Code and further the court also did find all of them except appellant-Indradeo Vishwakarma guilty for the offence under Section 412 of the Indian Penal Code and thereby the court recorded the order of conviction and sentence against the appellants which is under challenge. 10. Mr. A.K. Sahani, learned counsel appearing for the appellants-Dilip Rai, Prakash Rai and Munshi Tudu, as well as Mr. Lav Kumar Tiwari, learned counsel appearing for the appellants-Indradeo Vishwakarma, and Ram Chandra Rai, submit that appellants-Dilip Rai, Prakash Rai and Indradeo Vishwakarma as well as appellants-Ram Chandra Rai and Munshi Tudu were arrested on 8.7.2003, 9.7.2003 and 15.7.2003 respectively but they were put on the test identification parade on 29.9.2003 almost after about two and half months of the arrest of those three persons and thereby any identification made in the test identification parade by the witnesses loses its significance, as the memory of the witnesses must have faded away by that time but the court below did not take into account these aspects of the matter while recording the order of conviction and sentence. 11. 11. In this regard, it was pointed out that P.W.3 had identified all the appellants at test identification parade and also in the court but before the appellants were put on test identification parade, P.W.3 had occasioned to see the appellants at the police station and thereby any identification made either at the time of test identification parade or in the court below, can be taken to be at the instance of the police. 12. So far as matter relating to identification of looted articles are concerned , it was submitted that the prosecution has also come forward with the case that the articles, which had been looted, had also been recovered from the possession of the appellants but some of the articles were never the subject matter of dacoity. Moreover, none of the seizure list witnesses before whom it is said that those articles had been recovered, has been examined by the prosecution. 13. Further submission is that the appellants have been convicted for the offence under Section 364A of the Indian Penal Code but one of the ingredients of putting a person under threat of life or injury has been lacking. 14. In this regard, it was highlighted that though P.W.1 has testified that the accused persons had extended threat by making telephonic call but such statement had been made by the P.W.1 for the first time in the court which fact gets reflected from the evidence which was elicited in the cross examination and thereby the testimony of P.W.1 cannot be part of consideration so far as the matter relating to demand of ransom is concerned. 15. Further, it was pointed out that so far as the P.W.2 is concerned, he though in his evidence had testified about the threat being extended but that statement had never been made by him before the police and, therefore, whatever evidences have been adduced on the point of demand and also on the point of threat being extended, that can be said to be afterthought and, therefore, that needs to be excluded from the consideration as to whether the appellants had put forth any demand of ransom by putting the victim-Om Prakash Baid under fear of death or grievous injury. 16. 16. Again it was submitted that the incriminating material appearing against the appellants has never been put to the appellants in accordance with law as prescribed under Section 313 Cr.P.C. 17. In this regard, it was highlighted that the questions have been put to the appellants in a generalized manner though it should have been quite specific. It is the case of the prosecution that from each of the appellants, a separate looted article has been recovered but from the question put to the appellants under Section 313 Cr.P.C., it would appear that they were asked to explain about the recovery of all those materials which even had not been recovered from their possession. Thus, it was submitted that the trial court did not take into account all these aspects of the matter in right perspective and thereby it committed illegality in recording the order of conviction and sentence against the appellants and thereby the order of conviction and sentence is fit to be set aside. 18. As against this, Mr. Shekhar Sinha, learned counsel appearing for the State, submits that so far offence under Section 364A of the Indian Penal Code is concerned, all the ingredients, which are required to be there for attracting offence under Section 364A of the Indian Penal Code, has been proved by the prosecution, as the evidences are there that P.W.3-Om Prakash Baid and P.W.4-Ashok Yadav were first accosted in the way and then they were kidnapped whereby, they were brought to a forest where P.W-3 Om Prakash Baid was made captive and then demand of ransom was made, which is evident from the evidences of P.Ws. 2 and 3 by making telephonic call extending threat of life, if the amount is not paid and that it was never correct on the part of the appellants to say that P.W.1 has testified for the first time in the court as the record reveals that his statement under Section 161 Cr.P.C. had been taken by the I.O. during investigation. 19. 19. Further it was submitted that clinching evidences are there for establishing of the accusation under Section 395 of the Indian Penal Code, as the evidences led in this regard establishes that P.W.3, P.W.4 and P.W.5 were accosted in the way while they were proceeding to Giridih and then they were taken to forest where those three persons were relieved of their belongings such as Mobile, Camera, Goggles and Wrist Watch, which have been recovered from the possession of all the appellants except appellant-Indradeo Vishwakarma and that all the appellants have been identified by P.W.3 to be the persons, who relieved them of their belongings and kept him under captivity for the purpose of having ransom and, thereby, the trial court was absolutely justified in recording the order of conviction and sentence against the appellants, which never warrants to be interfered with by this Court. 20. Having heard learned counsel appearing for the parties and on perusal of the record, we do find from the testimonies of P.W.3-Om Prakash Baid, P.W.4-Ashok Yadav and P.W.5-Amjad Khan that while they were returning to Giridih from Koderma, after attending the marriage ceremony at Koderma on Sumo Vehicle being driven by P.W.-5-Amjad Khan and reached at Gundari Culvert near Village Gorthambha, they found the road being blocked by trunk of trees. As soon as the vehicle got stopped, the miscreants surrounded them and then took control of the vehicle and got the vehicle brought at forest where the miscreants relieved them of their belongings such as mobile, camera, goggles and wrist watch. At the forest, they kept all the three persons confined for an hour and then the miscreants let off P.W.4 and P.W.5 whereas kept P.W.3 Om Prakash Baid confined from whom the miscreants demanded Rs.10,000,00/-. While he was under the captivity of the miscreants, demand was made from P.W.1-Deepak Baid and also from P.W.2 Krishna Murari, both brothers of P.W.3. According to P.W.1, miscreants held out threat by making a telephone call for making payment of a ransom. Similarly, P.W.2-Krishna Murari, another brother of P.W.3, has testified that while he was at Raniganj, he came to know that his brother had been kidnapped and then he received a call whereby Rs.10,00,000/- was demanded. They clearly communicated him that if the money is not paid, the victim would be killed. Similarly, P.W.2-Krishna Murari, another brother of P.W.3, has testified that while he was at Raniganj, he came to know that his brother had been kidnapped and then he received a call whereby Rs.10,00,000/- was demanded. They clearly communicated him that if the money is not paid, the victim would be killed. According to P.W.2, telephonic conversation was there with the appellants -Prakash Rai, Munshi Tudu and also by Sukhdeo Yadav. In that event submission has been advanced on behalf of the appellants that it is only conjectures on the part of the P.W.3 to say that telephonic call had been made by the appellants Prakash Rai and Munshi Tudu, as the prosecution has never come with a mobile number belonging to those persons, from which, telephonic call had been made nor there has been any voice recording from which the voice of the caller could have been identified and, thereby, submission was made that the prosecution cannot be said to have proved that it was the appellants-Prakash Rai and Munshi Tudu, who had made call, asking ransom under the threat of life of the victim, but the submission, in the facts and circumstances appearing in this case, is not acceptable. 21. In this regard, it be stated that Prakash Rai and Munshi Tudu are the persons, who had been apprehended by the police and that apart Dilip Rai, Indradeo Vishwakarma and Ram Chandra Rai had also been arrested from whose possession (except Indradeo Vishwakarma) looted articles had been recovered, which had been identified by P.Ws.3, 4 & 5. 22. Further more, it has also come in the evidence of P.W.3 that after one month and one day, when he was being taken on a motorcycle, after being blindfolded, miscreants told him that they are letting him off as they have received ransom, which amount, as per the evidence of P.W.3, has been paid first to Sukhdeo Yadav and when it was communicated to him that ransom amount has been paid to a wrong person, further sum of Rs.2,00,000/- has been paid. Under the circumstances, as stated above, submission advanced that the person, who asked for ransom may be different from these appellants, cannot be accepted. Under the circumstances, as stated above, submission advanced that the person, who asked for ransom may be different from these appellants, cannot be accepted. The factum of reasonable apprehension on the part of P.W.1 and P.W.2 being there is evident from the evidence of P.W. 1 and P.W.2, who have categorically testified that they had received threatening calls holding out threats that if the amount is not paid the victim would be killed. It never happens that P.W.1 and P.W.2 had made such statements for the first time in Court. Such submission was made on the premise that the statement of P.W.1 had never been recorded and that P.W.2 had never informed to the police about such threatening calls being received by him. So far as P.W.1 is concerned, it is incorrect to say that his statement was never recorded under Section 161 Cr.P.C. Coming to P.W.2, we do find that his attention towards earlier statement was never drawn that he had not made such statement under Section 161 Cr.P.C. In such event, this plea is not available to defence that he had not made such statement. 23. Under the circumstances, we do find that all the ingredients of the offence under Section 364A of the Indian Penal Code gets fulfilled. The said provision reads as follows:- “364-A. Kidnapping for ransom, etc.—Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine. 24. On its perusal, we do find that essential ingredients to attract the provision under Section 364A of the Indian Penal Code are that there has to be demand by the kidnapper from the complainant or from any of his/her relatives asking for payment of ransom and that the victim after being abducted or kidnapped must be under threat of being killed or hurt. 25. 25. In the instant case, the facts narrated above, clearly depict that all the three ingredients, constituting offence under Section 364A of the Indian Penal Code are there in the instant case. 26. Coming to the other aspect of the matter, it be pointed out that all the appellants had been apprehended by the police though at different point of time. Three appellants, namely, Prakash Rai, Dilip Rai and Indradeo Vishwakarma had been apprehended on 8th July, 2003. Thereafter, on two different dates, the appellant-Munshi Tudu and Ram Chandra Rai were apprehended. However, they were put on TIP on 29th September, 2003, certainly about two and half months of the arrest of the three persons and as such, submission is there on the part of the appellants that any identification made after lapse of such a long time would be losing its significance, presumably for the reason that memory of the witnesses might have faded away. 27. No doubt, such general principle is there, but here in this case, we do find that P.W.3 had been kept under the captivity for about one month and one day during which, he was taken by the miscreants at different places and, therefore, figure of the appellants must have been imprinted in the mind of the P.W.3. In that event, even if there was such long time gap, P.W.3 may not find himself in difficulty in identifying the appellants and in fact, P.W.3 did identify all the appellant, when TIP was conducted by P.W.9. Subsequently, he in course of his evidence did identify all the accused as the persons who had not only kidnapped him for the purpose of ransom but they also relieved him as well as P.Ws.4 and 5 of their belongings. 28. Furthermore, involvement of the appellants in the alleged crime gets fortified from the fact that looted articles, such as Mobile (Ext.A), Camera (Ext.B), Goggles (Ext.C) and Wrist Watch (Ext.D) were recovered from the possession of each of the appellants, except appellant-Indradeo Vishwakarma. However, submission has been advanced on behalf of the appellants that the specific description of none of those alleged articles has been given and, thereby those articles cannot be taken to be looted articles. 29. It be stated that the informant in his fardbeyan has specifically said that cash, mobile, wrist watch belonging to the informant and other two witnesses P.W.3 and 5, were looted. 29. It be stated that the informant in his fardbeyan has specifically said that cash, mobile, wrist watch belonging to the informant and other two witnesses P.W.3 and 5, were looted. There does not appear to be any reason on the part of the witnesses to falsely implicate the persons, by making identification of the articles, which were not belonging to them, rather the witnesses were able to identify those articles, as it belonged to them. 30. Coming to the point relating to the statements recorded under Section 313 Cr.P.C., it be stated that the statements of the accused have been recorded in generalized manner. So far as the recovery of looted articles is concerned, though it should have been specific relating to each of the appellants. Section 313 Cr.P.C. is based on the fundamental principle of fairness. The attention of the accused must specifically be brought inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminating material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 Cr.P.C. cannot be used against him and hence, to be excluded from consideration. Such proposition has been laid down by the Hon'ble Supreme Court in case of Sharad Birchand Sharda vs. State of Maharashtra [ (1984)4 SCC 116 ] and the State of Maharashtra vs. Sukhdeo Singh [ (1992) 3 SCC 700 ] . 31. Here in the instant case, it is not the case of the defence that the materials incriminating to the accused persons were never put under Section 313 Cr.P.C. rather the case is that it was put in generalized manner but prejudice could not be shown to have occurred on account of that. Furthermore, it is quite specific case of the prosecution that from whose possession which looted articles were recovered which was placed through the witnesses, who was subjected to cross-examination by the accused persons but nothing seems to have been elicited to demolish the case of the prosecution. Furthermore, it is quite specific case of the prosecution that from whose possession which looted articles were recovered which was placed through the witnesses, who was subjected to cross-examination by the accused persons but nothing seems to have been elicited to demolish the case of the prosecution. Thus we can safely say that no prejudice has been caused to the appellants. 32. Thus, we do find that the trial court was absolutely justified in recording the order of conviction and sentence against the appellants, which is hereby, affirmed. 33. So far as the sentence is concerned, it is also affirmed against all the appellants except, the appellant-Indradeo Vishwakarma, as he was found to be juvenile on the day of occurrence, when the plea of juvenility was taken for the first time before this Court, which is apparent from the order dated 13.01.2009 passed in Cr. Appeal (D.B.) No.1125 of 2005. On examining the case on merit, we have affirmed the order of conviction. 34. In that event, ratio laid down in a case of Lakhan Lal vs. State of Bihar ( AIR 2011 SC 842 ) needs to be followed. 35. It be stated that in a case of Lakhan Lal (supra), question relating to procedure to be adopted in a case where question of juvenility has been raised for the first time cropped up. Their Lordships after taking notice of the several decisions was pleased to hold as under: “A somewhat similar question had arisen in Umesh Singh and another vs. State of Bihar [ (2000) 6 SCC 89 ] wherein this Court relying upon the earlier decisions in a case of Bhola Bhagat vs. State of Bihar (1997) 8 SCC 720 ], Gopinath Ghosh vs. State of W.B [1984 (Supp) SCC 228] and in a case of Bhoop Ram vs. State of U.P [ (1989) 3 SCC 1 ] while sustaining the conviction of the appellant therein under all the charges, held that the sentences awarded to them need to be set aside. It was also a case where the appellant therein was aged below 18 years and was a child for the purposes of the Bihar Children Act, 1970 on the date of the occurrence.” 36. It was also a case where the appellant therein was aged below 18 years and was a child for the purposes of the Bihar Children Act, 1970 on the date of the occurrence.” 36. After holding so, the question also cropped up before Their Lordships as to what sort of order relating to sentence is to be passed against the appellants for the offences committed by them under Section 302 read with Section 34 of the Indian Penal Code. Their Lordship after having regard of the age of the appellants who had crossed the age of 40 years did hold that it will not be conducive to the environment in the special home and at any rate, they have undergone an actual period of sentence of more than three years the maximum period provided under Section 15 of the 2000 Act. In that event, Their Lordships set aside the sentence, while affirming the order of conviction. 37. Thus, the ratio laid down in the decision rendered in a case of Lakhan Lal (supra) and in a case of Jitendra Singh @ Babboo Singh and another vs. State of U.P [(2013 (9) SCALE 18] is somewhat different, so far it relates to the point of sentence. 38. In a case of Jitendra Singh @ Babboo Singh and another (supra), it has been held that the matter of sentence be left to be awarded by the Juvenile Justice Board whereas in case of Lakhan Lal vs. State of Bihar (supra) the court in the facts and circumstances of the case did not consider it fit to leave the matter relating to sentence to be passed by the Juvenile Justice Board for the reason that the appellant had crossed the age of 40 years and as such, according to Their Lordship, it will not be conducive to the environment in the special home. 39. 39. In that view of the matter, so far as the sentence is concerned, admittedly maximum punishment, which has been prescribed under Juvenile Justice (Care and Protection of Children), Act, is three years whereas the appellant- Indradeo Vishwakarma, who may be presently of the age of 29 years, has already served sentence for more than eight years and thereby, following the decision rendered in a case of Lakhan Lal (supra), the sentence imposed by the trial court is hereby set aside and the appellant- Indradeo Vishwakarma is hereby discharged from the liability of the bail bond. 40. So far appellant- Prakash Rai is concerned, he is on bail and hence, his bail bond is cancelled and is directed to be taken into custody for serving out the sentence. 41. Thus, Cr. Appeal (D.B.) No.1125 of 2005 stands partly allowed whereas Cr. Appeal (D.B.) No.1160 of 2005 stands dismissed.