ORDER : The accused persons, namely, Sital Dutta, Surya Narayan Hansda @ Surya Hansda @ Mukhiya, Gopal Dutta and Basudeo Pal have faced the trial on the charge under section 364-A read with section 34 and under section 120-B of the Indian Penal Code. 2. In Criminal Appeal (DB) No. 759 of 2010, Sital Dutta and Gopal Dutta are the appellants and Criminal Appeal (DB) No. 418 of 2011 has been instituted on a jail application sent by Basudeo Pal. 3. In Sessions Case No. 118 of 2009, Surya Narayan Hansda @ Surya Hansda @ Mukhiya has been acquitted of the criminal charges framed against him by extending the benefit of doubt to him. 4. The appellants, namely, Sital Dutta, Gopal Dutta and Basudeo Pal have been convicted and sentenced to R.I. for life and fine of Rs. 10,000/- each under section 364-A read with section 34 of the Indian Penal Code. 5. The charge under section 120-B of the Indian Penal Code has failed. 6. The informant of this case, namely, Dilip Kumar Prasad Sah is brother of the victim. On the basis of his written report dated 6.3.2009, Mahagama P.S. Case No. 21 of 2009 has been lodged against unknown under section 364-A read with section 34 of the Indian Penal Code. During the trial, the prosecution has examined 13 witnesses. The informant is PW-1, his victim brother, namely, Krishna Murari Prasad is PW-11 and Janardhan Bhagat, who is an employee in his shop, has been examined as PW-12. 7. In his written report, the informant has stated that his brother who had left for home in the afternoon of 5.3.2009 on a Bolero vehicle bearing no. JH 17A 8973 with his driver Basudeo Pal did not reach home and he apprehends that unknown miscreants have kidnapped his brother. During the trial, he has narrated a similar story about missing of his brother on 5th of March, 2009. He has affirmed that he gave a written information about kidnapping of his brother on 6.3.2009. He has spoken about demand of ransom of Rs. 10 lakhs on 6.3.2009 on the telephone bearing no. 9931781506 and on another phone bearing number 9801491130 between 10 a.m. to 12 noon at his shop. He has affirmed that he gave a written information about kidnapping of his brother on 6.3.2009. He has spoken about demand of ransom of Rs. 10 lakhs on 6.3.2009 on the telephone bearing no. 9931781506 and on another phone bearing number 9801491130 between 10 a.m. to 12 noon at his shop. The victim who has been examined as PW-11 has given a detailed description in the court about his kidnapping, threat to murder, demand of ransom and his release by the accused persons. He has stated that on 5.3.2009 at about 9:15 p.m. he started for home on his Bolero vehicle which was driven by Basudeo Pal. At that time he was returning from the house of Rajendra Prasad. On the way back home when they reached Anganbari centre, few persons stopped his vehicle. In the headlight of the vehicle he has seen those persons; they were carrying revolver. Amongst them were Sital Dutta, Gopal Dutta, Sikandar Pandit, Mukesh Pandit, Dilip Tuddu and Manoj Murmu who came on the vehicle and on gun point forced them to go towards Mahadeo Bathan, where Nagendra Ramani and Ashok Thakur came on the motorcycle. The accused persons had put a band on his eyes and forced him to lie on the middle seat of the vehicle while they were sitting on both sides. After they travelled about 1 ½ hours to 2 hours the driver said that the vehicle has ran out of fuel and then the accused persons called a motorcycle on which he was taken towards jungle. He was kept in a hut inside the jungle and in the morning they asked him his house telephone number. He has further stated that the accused persons have taken away his mobile phones bearing no. 9835795140 and 9204434575 and Mukesh Pandit asked for ransom of Rs. 10 lakhs on the telephone bearing no. 9931781506 at his shop. On 6.3.2009 at about 8:30 p.m. they told him that the work has been accomplished and at 9:00 p.m. they brought him on the road and after travelling some distance at about one kilometer before Deodanr they left him; he reached home at about 3:00 a.m. on 7.3.2009. PW-12 is another witness who has been examined by the prosecution to prove that the accused persons had made demand of ransom at the shop of the victim on 6.3.2009. PW-12 is another witness who has been examined by the prosecution to prove that the accused persons had made demand of ransom at the shop of the victim on 6.3.2009. He has stated that at about 8:00 a.m. on 6.3.2009 a call asking him whether his employer is Krishna Murari Prasad came at the shop and he was asked to arrange Rs. 10 lakh. He has further stated that by paying Rs. 4,50,000/- to Dilip Sah, Om Prakash and Mantu Dutta, the victim was released who reached home in the morning of 7.3.2009. He has stated that the victim had told him name of the persons who had abducted him. 8. PW-2 is wife of the victim and PW-3 is his mother. They are not the eye-witnesses but they have spoken about kidnapping of the victim and demand of ransom, payment of ransom and release of the victim. PW-4 who is a friend of the victim has stated in the court that the victim has told him name of the appellants as his kidnappers and PW-5 and PW-6 have also deposed in the court what was told to them by the victim. PW-7 and PW-8 are the seizure witnesses, who have proved the seizure of Bolero vehicle. The prosecution has produced PW-9 and PW-10 on seizure of the mobile phones, however, PW-9 has stated that he has no knowledge about the occurrence and PW-10 has been declared hostile. 9. On the basis of the above evidence, Mr. A.K.Kashyap, the learned senior counsel for the appellants in Cr. Appeal (DB) No. 759 of 2010 has submitted that: (i) no demand of ransom has been made by the appellants, (ii) demand of ransom is not proved, (iii) several accused persons have not been sent up for trial and while so, substantial doubt has been created on veracity of the prosecution’s case. To fortify his submissions on demand of ransom the learned senior counsel has relied on the decision in “Malleshi Vs. State of Karnataka” reported in (2004) 8 SCC 95 . 10. Mr.Raja Ravi Shekhar Singh, the learned Amicus who appears for Basudeo Pal, has contended that only on suspicion the appellant has been implicated and convicted in this case. 11. First, we intend to examine merits of the prosecution’s case against the appellant Basudeo Pal. 12. State of Karnataka” reported in (2004) 8 SCC 95 . 10. Mr.Raja Ravi Shekhar Singh, the learned Amicus who appears for Basudeo Pal, has contended that only on suspicion the appellant has been implicated and convicted in this case. 11. First, we intend to examine merits of the prosecution’s case against the appellant Basudeo Pal. 12. The victim has stated in his examination-in-chief that Sikandar Pandit and Manoj Murmu stayed with him after a demand for ransom was made and others left taking Basudeo Pal along. Except stating that Basudeo Pal is the driver who was driving the vehicle when the victim left for home on 5.3.2009, the prosecution witnesses have not stated a word about him. During his cross-examination, the victim has stated that he had informed the police about Basudeo Pal looking frightened. He has further stated that he met Basudeo Pal after he was released by his kidnappers about one kilometre from Deodanr and at that time he was alone. Presumably to a suggestion by the defence whether Basudeo Pal was with the other accused persons, in his cross-examination the victim has stated that he was not with the accused persons. He has further stated that the accused persons had released Basudeo Pal also and both of them walked together to Deodanr. They had gone to the police station together and thereafter gone home. PW-1 has stated in his cross-examination that along with his brother Basudeo Pal was also released by the abductors and in his cross-examination PW-12 has stated that along with the victim Basudeo Pal was also abducted. 13. To prove the charge against Basudeo Pal the prosecution has also tendered his confessional statement in evidence. In his cross-examination the Investigating Officer has stated that the confessional statement of Basudeo Pal was recorded at his home on 9.3.2009 at 13:00 hours but in the same breath he says that at that time Basudeo Pal was at the police station. In his confessional statement Basudeo Pal has stated about his release by the accused persons. He has of course stated that due to payment of meagre salary he was annoyed with his employer and he developed relationship with Sital Dutta and Gopal Dutta and made a conspiracy to extort money from his employer, but then, these statements relate to the past events and, therefore, not admissible in evidence. He has of course stated that due to payment of meagre salary he was annoyed with his employer and he developed relationship with Sital Dutta and Gopal Dutta and made a conspiracy to extort money from his employer, but then, these statements relate to the past events and, therefore, not admissible in evidence. The statement of an accused which does not lead to discovery of a new fact is not admissible under section 27 of the Indian Evidence Act. In “Pulukuri Kottaya Vs. Emperor” reported in AIR 1947 PC 67 , the Privy Council has observed that section 27 of the Evidence Act incorporates an exception to the restrictions under section 25 and section 26 and enables certain statements made by an accused in police custody to be proved. It has been held that the condition necessary to bring section 27 of the Evidence Act into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates discovery to the fact thereby discovered may be proved. 14. On the basis of the above evidence, particularly, of the victim on complicity of Basudeo Pal in the occurrence, in our opinion, the prosecution has failed to prove the charge against him and, accordingly, his conviction for the offence under section 364-A of the Indian Penal Code is set-aside. 15. The appellant, namely, Basudeo Pal in Cr. Appeal (DB) No. 418 of 2011 is acquitted of the criminal charges framed against him in Sessions Case No. 118 of 2009. He is on bail and, therefore, he shall stand discharged of liability of the bail-bonds furnished by him. 16. Accordingly, Cr.Appeal (DB) No. 418 of 2011 is allowed. 17. The essential ingredients to constitute an offence under section 364-A of the Indian Penal Code are: (i) kidnapping or abduction of a person or keeping a person in detention after kidnapping or abduction, (ii) threat to cause death or hurt to such person or a reasonable apprehension of death or hurt by the conduct of the accused or hurt or death of such person and, (iii) demand of ransom. 18. 18. On complicity of the appellants, namely, Sital Dutta and Gopal Dutta we find that irrespective of minor inconsistency in the evidence of the prosecution witnesses and lapses during the investigation, the prosecution has proved the charge under section 364-A/ 34 of the Indian Penal Code against them. During their cross-examination, PW-1, PW-11 and PW-12 have stood to their grounds. The abduction of PW-11 is proved by the prosecution. While returning home the victim was compelled to go to another place and he was confined in a hut against his will. In the process the accused persons have applied force and threatened him on gun point. The prosecution has also proved that he was abducted and threatened by the accused persons in connection to demand of ransom. During the sojourn he was threatened by the accused persons who were carrying pistol. He has stated that when he was forcibly driven away he asked the accused persons why they were doing so and then they told him that he has been kidnapped and if he raises hulla he would be killed. In his cross-examination he has stated that he has told the police about his kidnapping and demand of ransom. His brother -PW-1 has stated in the court that his family is in fear even today, that is, the day when he was examined in the court. In his cross-examination in paragraph-9 he has stated that he informed the police about the demand of ransom of Rs. 2 lakh from Godda Jail. In para-15 he has stated that previously due to fear he did not make a complaint to the police. In his cross-examination, he has stated about demand of Rs. 1 lakh by Mukesh Pandit and he has also spoken about the appellant, namely, Sital Dutta being an accused in the murder case of Janardhan Pal. The aforesaid facts clearly bring out threat to the victim and his brother and demand of ransom. PW-12 has of course admitted during his cross-examination that he did not state before the police about payment of Rs. 4,50,000/- for release of Krishna Murari Prasad, however, he has said that he did mention the name of Sital Dutta and Gopal Dutta before the police. The victim has stated that a call was made by Mukesh Pandit for demand of Rs. 10 lakh on his shop phone bearing no. 4,50,000/- for release of Krishna Murari Prasad, however, he has said that he did mention the name of Sital Dutta and Gopal Dutta before the police. The victim has stated that a call was made by Mukesh Pandit for demand of Rs. 10 lakh on his shop phone bearing no. 99317 81506 and his brother has stated that between 10:00 a.m. to 12:00 noon on 6.3.2009 calls came for demand of Rs. 10 lakh for release of his brother. The call record which has been marked as Ext. 6 would disclose several incoming calls at the telephone bearing no. 9931781506 between 10:00 a.m. to 12:00 noon. On such evidence, the contention raised by Mr. A.K.Kashyap, the learned senior counsel for the appellants in Cr. Appeal (DB) No. 759 of 2010 that no call has been made from the mobile phone of the victim at the shop at around 12:00 noon looses its force. The fact that no call was made from the mobile phone of the victim has become irrelevant in face of the ocular evidence. The brother of the victim has said that calls came between 10:00 a.m. to 12:00 a.m. and the call detail record reveals several calls made at the shop of the victim. At this stage it is also pertinent to record that the appellants have been convicted with the aid of section 34 of the Indian Penal Code. The Investigating Officer has stated during his cross-examination that a charge-sheet was submitted against as many as five accused persons. It is not necessary for the prosecution to establish each ingredient of section 364-A of the Indian Penal Code against all the accused persons, separately and independently. All the accused persons may not have participated at every stage and all of them were not required to be present all through. What is necessary to find out is that whether they all have acted in concert and the final act has been accomplished in furtherance of common intention. Therefore, it is not necessary that the demand of ransom must came from the mouth of the appellants. Section 34 of the Indian Penal Code embodies constructive liability of all. Section 34 in itself is not an offence but it makes others constructively liable for the offence committed in furtherance of common intention. Therefore, it is not necessary that the demand of ransom must came from the mouth of the appellants. Section 34 of the Indian Penal Code embodies constructive liability of all. Section 34 in itself is not an offence but it makes others constructively liable for the offence committed in furtherance of common intention. It talks of prior concert between two or more persons but it is not necessary that all the accused persons must have played an active role at every stage in the entire episode. In “Bharwad Mepa Dana and Anr. Vs. The State of Bombay” reported in AIR 1960 SC 289 , the Hon’ble Supreme Court has held that the principle which section 34 IPC embodies is participation in action with the common intention of committing a crime and once such participation is established, section 34 is at once attracted. In “Girija Shankar vs. State of U.P.” reported in (2004)3 SCC 793 , the Supreme Court has observed thus: “9. ------------In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime……..”. 19. The participation of the appellants in the occurrence is well proved by the prosecution. The testimony of P.W.-1, P.W.-11 and P.W.-12 is sufficiently corroborated by the evidence of other witnesses and through their evidence the prosecution has established essential ingredients for constituting the offence under section 364-A read with section 34 of the Indian Penal Code against the appellants, namely, Sital Dutta and Gopal Dutta. 20. Having held so, we find no ground to interfere in this matter and, accordingly, Cr. Appeal (DB) No. 759 of 2010 is dismissed. 21. We appreciate the able assistance rendered by Mr. Raja Ravi Shekhar Singh, the learned Amicus. 22. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s) as per the Notification dated 23.11.2017. 23. Let lower court records be transmitted to the court concerned, forthwith. 24. Let a copy of this judgment be communicated to the trial court.