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2022 DIGILAW 546 (GAU)

Dolu Chakma S/o Rudhan Chakma v. State of A. P.

2022-05-26

KALYAN RAI SURANA, ROBIN PHUKAN

body2022
JUDGMENT : ROBIN PHUKAN, J. 1. By this common judgment and order, it is proposed to dispose of two Criminal Appeals, being Criminal Appeal No. (J) 01(AP)/2019 preferred by appellant Dolu Chakma and Criminal Appeal No. (J) 02(AP)/2019, preferred by appellant Lompu Thapa, as both are arisen out of a common judgment and order dated 23.08.2018, passed by the learned Sessions Judge, Tezu, in Session Case No. 24/L/2013, wherein both the appellant were convicted under Sections 364 A IPC and sentenced to suffer rigorous imprisonment for life. 2. Since, both this appeals are preferred from jail, Mr. D. Panging, learned Advocate was appointed as Amicus Curiae to assist this Court. 3. The factual background leading to filing of this present appeal is briefly stated as under: 3.1. On 01.12.2012, the informant-Sri Binod Kumar Agarwal S/o Lt. Kanhaiya Lal Agarwal of Naholia, Duliajan, along with his younger brother Mr. Pradeep More and one Chandrapaul Sharma of Bordumsa, Changlang District, were visiting the tea garden of Shri Pradip More situated at Lekhang Khamti village of Bordumsa to see the ongoing works. At around 11:30 A.M. on that day, some unknown armed gunmen kidnapped them from the said tea garden. After two hours the kidnappers asked him to go back but taking away the other two people. The kidnappers threatened him not to report the matter to police. He then left for home and on 02.12.2012; he received one phone call from the kidnappers to arrange money for safe release of his brother without, however, specifying the amount. Thereafter, on 02.12.2012 he lodged an FIR with the Officer-in-Charge, Namsai Police Station upon which the O.C. Namsai P.S. registered NMS P.S. Case No. 132/12, under Sections 364 A IPC, read with Section 25 (1) (a) of the Arms Act and himself started investigation. During investigation he has visited the place of occurrence, examined the witnesses, prepared sketch map of place of occurrence and arrested some of the suspects and from there he came to know that one Devota Moran @ Indrajit Neog of ULFA, Prasanta Ngyem @ Bhim, Dolu Chakma and Lombu Thapa of UPDF, were involved in the case and he had intercepted the mobile calls of the kidnappers and estimated that they were hiding somewhere deep inside in the Manabhum forest with hostages. Then with the help of Army he has rescued the hostage on 17.12.2012. Then with the help of Army he has rescued the hostage on 17.12.2012. Thereafter, he got the Test Identification Period (TIP) of some of suspects conducted and also got confessional statement of accused Lompu Thapa recorded. Then, on completion of the investigation, he laid Charge-sheet against the accused Dolu Chakma, Prasanta Ngyem @ Bhim, Lambu Thapa and Devota Moran @ Indrajit Neog. 3.2. On commitment of the case to the Court of learned Sessions Judge, Tezu, the learned Sessions Judge has framed charge against all the four accused under Sections 120 (B) and 364 (A) IPC and on being read and explained over, the accused persons pleaded not guilty to the charges. Thereafter, the prosecution seizes and examines as many as (10) witnesses, including the I.O and one JMFC Namsai, and after closing the prosecution evidence, the learned Court below has examined the accused persons under Section 313 Cr.P.C. 3.3. Thereafter, hearing the argument of both sides, the learned Court below has acquitted accused Prasanta Ngyem @ Bhim and Devota Moran @ Indrajit Neog for want of evidence, but convicted accused, Dolu Chakma and Lombu Thapa, under Section 364A IPC and sentenced them as aforesaid. 4. Being highly aggrieved appellants Dolu Chakma and Lombu Thapa have preferred this appeal for setting aside the impugned judgment and order of the learned Court below. 5. We have heard Mr. D. Panging, learned Amicus Curiae and also heard Ms. T. Jini, learned Additional PP for the State respondent. 6. Mr. D. Panging, learned Amicus Curiae submits that the complicity of the appellants with the offence alleged could not be established beyond doubt by the prosecution side. Taking us through the evidence of the prosecution witnesses, Mr. Panging submits that except the evidence of PW-1 and 2, the evidence of remaining 8 witnesses are not relevant. Referring to the evidence of PW-1 Mr. Panging submits that this witness admitted in cross-examination that he do not know if the four persons standing on dock were not the persons whom he had identified. Further Mr. Panging submits that except the evidence of PW-1 and 2, the evidence of remaining 8 witnesses are not relevant. Referring to the evidence of PW-1 Mr. Panging submits that this witness admitted in cross-examination that he do not know if the four persons standing on dock were not the persons whom he had identified. Further Mr. Panging submits that though PW-2, Shri Pradeep More has identified the witnesses during the TIP, as is evident from the evidence of PW-10 Smt. Jyanti Pertin, Executive Magistrate-cum-JMFC, Namsai and also from the TIP chart, Exh-10, yet, the PW-2 in his cross-examination admitted that before the TIP, the photograph of the accused were shown to him by police and also told their names and the TIP was held at Police Station and that police personnel and their staffs were present there at the relevant time. Referring to one case law Vijayan vs. State of Kerela, (1999) 3 SCC 54 , Mr. Panging, submits that when identity of the appellant before TIP was disclosed to the witness by showing photographs by Police, such TIP has no value at all. Mr. Panging also referred another case law, N.J. Suraj vs. State Represented by Inspector of Police, (2004) 11 SCC 346 , in support of his submission. Mr. Panging, further pointed out that there is contradiction in the version of the witnesses and the benefit of such contradiction will go to the accused persons. Mr. Panging has referred another case law, Harchand Singh and Another vs. State of Haryana, AIR 1974 SC 344 , to bolster his submission. Mr. Panging further submits that this is a clear case of acquittal and therefore, it is contended to allow both the appeals. 7. Per contra, Ms. T. Jini, the learned Addl. P.P submits that the evidence of PW-1 and 2 are very much relevant herein this case and they have identified the appellants and their evidence finds corroboration from Test Identification Parade (TIP) and from the evidence of PW-10 and as such their evidence can be relied upon and the learned Sessions Judge has rightly convicted them under Section 364 A IPC. Ms. Jini therefore contended to uphold the same. Ms. Ms. Jini therefore contended to uphold the same. Ms. T. Jini, has also referred three case laws (i) Maqbool @ Zubir @ Shahnawaz and Another vs. State of A.P. (2010) 0 Supreme (SC) 547, (ii) Siddartha Vashist @ Manu Sharma vs. State (NCT of Delhi), (2010) 2 Crimes (SC) 154, (iii) Anil Kumar vs. State of U.P. (2003) 0 Supreme (SC) 171, to bolster her submission. 8. Having heard the submissions of learned advocates of both sides, we have carefully gone through the evidence on the record. It is to be noted here that the occurrence took place on 01.12.2012, at around 11.30 A.M. at Lekhang Khamti village, under Namsai P.S. District Namsai, Arunachal Pradesh. The date, time and place of occurrence have not been disputed here in this case. It also appears that while the occurrence took place on 01.12.2012, the F.I.R. was lodged on 02.12.2012, at around 4.30 hours. Thus, there is delay of more than 24 hours in filing the FIR. However, it appears from the FIR that the kidnappers had threatened the complainant not to report the matter to the police. Besides, it appears from the evidence of the informant that he was also kidnapped by the kidnappers, but after two hours he was asked to come back and thereafter he left that place and reached home late night. Though, no reason has been assigned by the informant in delayed lodging of the FIR yet, the same stands explained impliedly from the FIR and also from the evidence of the informant, and such an explanation has not been disputed by the defence side. 9. In the case of Shaik Ahmed vs. State of Telangana, (2021) 3 Crime (SC) 6 [Criminal Appeal No. 533 of 2021 and Special Leave Petition (Crl.) No. 308 of 2021, decided on 28.02.2021] Hon’ble Supreme Court, while dealing with the ingredients of section 364(A) IPC held as under: “33. After noticing the statutory provision of Section 364A and the law laid down by this Court in the above noted cases, we conclude that the essential ingredients to convict an accused under Section 364A which are required to be proved by prosecution are as follows: (i) Kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction. (ii) 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. (iii) causes hurt or death to such person in order to compel the Government or any foreign State or any Governmental organization or any other person to do or abstain from doing any act or to pay a ransom. 34. Thus, after establishing first condition, one more condition has to be fulfilled since after first condition, word used is “and.” Thus, in addition to first condition either condition (ii) or (iii) has to be proved, failing which conviction under Section 364A cannot be sustained.” 10. Now, let it be seen how far the prosecution side has succeeded in establishing the aforesaid ingredients here in this case. The evidence of the complainant-Shri Vinod Kumar Agarwal (PW-3) reveals that on 01.02.2012, he came to the tea estate nearby area of Namsai, along with the owner Shri Pradip More and Chandrapal Sharma. Then, they were kidnapped by 4 people. After walking about 2 hours, the kidnaper left him and took the other two people with them. Then being scared he came back alone straightway towards his home and reached home late night. On the next day i.e. on 02.12.2012, he proceeded to Namsai Police Station and lodged the F.I.R. His evidence also reveals that all of the 4 kidnappers were carrying weapon, both small and big size, with them and after 17 days, they were recovered by the Army personnel. His evidence further reveals that the kidnappers have demanded 1.5 crore rupees for their safe release. Cross-examination of this witness reveals that he cannot say, if the person standing on the dock were not the kidnappers and that he has seen them for the first time in the court. It is also elicited in cross-examination that he has not seen any injuries on the body of his two friends nor they disclose any assault by the kidnappers. 11. PW-1, Shri Chandrapal Sharma, is another victim here in this case. Corroborating the evidence of PW-3, he also testified that on 01.12.2012, at about 9-10 A.M. he along with Pradip More and Vinod Agarwal went inside the tea estate to see the same. 11. PW-1, Shri Chandrapal Sharma, is another victim here in this case. Corroborating the evidence of PW-3, he also testified that on 01.12.2012, at about 9-10 A.M. he along with Pradip More and Vinod Agarwal went inside the tea estate to see the same. Then suddenly two people came out from inside of the tea estate with a gun in their hand and they asked them to hands-up and thereafter they have seized their mobile phones. Then, he and Pradip More were taken inside the jungle leaving Vinod Kumar Agarwal. In the jungle two more friends of the kidnapper joined them and out of the four, three of them were armed with guns and they were taken inside the jungle for a long distance on foot, till 10-11 PM of that night. Thereafter, they halted at the jungle and there they have kept them in their captivity. During that time, they had demanded rupees 1.5 crores from Pradip More and finally, they were released on 17.12.2012, at around 10.00 AM, whenever, police and army personnel raided the area. The kidnappers fled away seeing police and army personnel. At that time they were being guarded by two people. Then they were taken to the police station. Cross-Examination of this witness reveals that he was called to identify the accused after their arrest, before the Magistrate and initially, he did not know the accused persons. Further, his cross-examination reveals that he do not know if the four persons standing in the dock were not the persons whom he had already identified and he had not remembered the name of the place where they were kept. He also did not name Dolu Chakma before the disclosure statement to police. 12. PW-2 Shri Pradip More is another victim of the case. Close on the heel of PW-1 and 3, he also testified that on the relevant date, he along with Binod Agarwal and Chandrapal Sharma went to visit his tea garden at Lekhang Khampti village and after visit when they were about to return, then suddenly four armed persons, two from one side and two from another side surrounded them and taken them towards jungle and after walking for about 1 km, they left his brother Vinod Agarwal. After walking for 9-10 hours on foot in the jungle they halted at one place, where they have been kept as hostages for 13 days. After walking for 9-10 hours on foot in the jungle they halted at one place, where they have been kept as hostages for 13 days. His evidence also reveals that the abductors directed him to make a phone call to his family for payment of Rs. 1 crore as ransom. His evidence also reveals that on 17thof that month at around 10-11 A.M. army and police personnel reached that place where they were kept confined and sensing the presence of police and army personnel, the kidnappers fled away leaving them behind. Then, the police personnel have taken them back to the police station. Thereafter, he was called to the Court of Magistrate and asked to identify the accused persons who have abducted them. Accordingly, he identified two of them, one Dolu Chakma and the other one Lombu Thapa and he still remembered these two persons, who were among the four persons, who have abducted them on that day. Cross-Examination of this witness reveals that photographs of the accused are shown to him by police first and also their names were also told to him and then, he was asked to identify the accused persons. It is also elicited that the photographs was a group photograph of 4 to 5 persons. Further, it is elicited that the kidnappers had not harassed them and also not subjected him to physical torture. 13. PW-10, Smt. J. Pertin is the Executive Magistrate-cum-JMFC, who had conducted TIP and had also recorded confessional statement (P/Exh-9) of the accused Lombu Thapa. Her evidence also reveals that while conducting TIP, six accused and four civilians were made to stand in the line before the victim and the victim identified both the accused persons and one Prashanta Ngyem, who had kidnapped them. Admittedly, this witness could not state whether the accused were produced before her from judicial custody or from police custody. 14. PW-4 Shri Ramesh Kr. Shah is the Driver of the tea estate. His evidence reveals that on 01.12.2012, he was ploughing in the estate with a Tractor. Then owner of the tea garden namely Shri Pradip More and Vinod Agarwal and Chandra Pal Sharma came there and then four persons with arms appeared there four of them were taken away from that area. Shah is the Driver of the tea estate. His evidence reveals that on 01.12.2012, he was ploughing in the estate with a Tractor. Then owner of the tea garden namely Shri Pradip More and Vinod Agarwal and Chandra Pal Sharma came there and then four persons with arms appeared there four of them were taken away from that area. Then after 30 minutes they released him and then he came back and he was asked by the kidnappers not to disclose the incident. Thereafter Vinod Agarwal came back in the evening and Pradip More and Chandra Pal Sharma was recovered after 17 days of kidnapping. His evidence also reveals that he heard that the kidnappers demanded rupees 1.5 crore for their release. It is elicited in his cross-examination that he cannot identify the kidnappers. 15. PW-5 Shri Manoj Kr. Pithani is the nephew of Pradip More and his evidence reveals that he has attended some of the phone calls of the kidnappers where they have demanded a sum of rupees 1.5 cores for release of the victims. Thereafter, the victims were released after 15-16 days. Admittedly, he is not aware of the persons who made the phone calls. 16. PW-6 Shri Kongseng Singpho and PW-8 Shri Nirab Ngyem were declared hostile, but the prosecution side has failed to bring on record the statements given by them before police and also failed to confirm the same through the I.O. Therefore, their evidence would not be helpful to the prosecution. 17. PW-7 Shri Vinod Shreshta is the Mohorer of the tea estate of Pradip More. His evidence reveals that on 17.11.2013 at about 10/11 a.m. he along with driver of the tea estate Shri Ramesh Kr. Shah, the owner of the tea garden, namely Shri Pradip More and Vinod Agarwal and Chandra Pal Sharma were visiting the tea estate. Then five kidnappers with arms and their face covered with cloths, appeared there and took away their mobiles and scolded them and taken them towards Balunullah and after one hour they freed him and the driver and after 2/3 hours, they also freed Vinod More. His evidence also reveals that Pradip More came back in the evening of 17.11.2013 and he heard that the kidnappers demanded rupees 1.5 crore for release of the owner. It is elicited in his cross-examination that he cannot identify the kidnappers as their faces were covered by clothes. His evidence also reveals that Pradip More came back in the evening of 17.11.2013 and he heard that the kidnappers demanded rupees 1.5 crore for release of the owner. It is elicited in his cross-examination that he cannot identify the kidnappers as their faces were covered by clothes. 18. PW-9 Shri Ratan Nath is the Investigating Officer of the case. His evidence reveals that he on 02.12.2012 he received one FIR from Vinod Kumar Agarwal about kidnapping of two persons for ransom. Then registering a case, being Namsai P.S. Case No. 132/2012 under section 364(A)/34 IPC, he started investigation and he visited the place of occurrence, examined the witnesses and prepared sketch map and he had rescued the victims after 17 days from the date of their kidnapping and he also held TIP, wherein, two of the accused persons, namely, Dolu Chakma and Prashanta Ngyem, were identified by the victims and after completion of the investigation, he lays Charge-sheet (P/Exh-2) with materials (Exh-1), including materials (Exh-1), containing 10 numbers of photographs of surrendering arms and ammunition before Tinsukia Police Station by the accused persons. He denied in cross-examination about implicating accused Dulu Chakma falsely. 19. Thus, it appears that the PW-2 Pradeep More is the star witness of the prosecution side. He has identified the present appellants during TIP and also in the court during trial. Now, it is to be seen how far the evidence of this witness is reliable. It appears that the occurrence took place on 01.12.2012, and this witness was rescued after 17 days as per evidence of the I.O. (PW-9). The TIP was conducted on 07.03.2012. Thus, there is inordinate delay, which is more than two and half months in conducting the TIP. Further, it appears that before the TIP, police shown the photograph of the appellants to PW-2. It was a group photograph of 4 to 5 persons. And police also told him the names of the appellant. And only thereafter he was asked to identify the appellants and then he had identified two of them. Thus, identification of the two appellants in the TIP, and also identification in the court during trial, by the PW-2 was sequel to showing of the photograph and also disclosing the names of the appellants by police. And only thereafter he was asked to identify the appellants and then he had identified two of them. Thus, identification of the two appellants in the TIP, and also identification in the court during trial, by the PW-2 was sequel to showing of the photograph and also disclosing the names of the appellants by police. Admittedly, PW-2 had not uttered the names of the appellants in his statement under section 161 Cr.P.C. There is also omission in his version. He has failed to mention the name of accused Prashanta Ngyem whom he has identified in TIP as is apparent from the TIP chart (P/Exh-10), wherein it is stated by PW-10 that witness Pradip More has identified one Dolu Chakma, Lombu Thapa and Prashanta Ngyem. Thus, the evidence of PW-2 suffers from interse inconsistencies. It is true that identification in the court is the sustentative evidence and can be relied upon. But, because of these inconsistencies, and also because of absence of corroborating evidence, we find it difficult to place reliance upon his evidence. 20. In the case of N.J. Niraj (Supra), the Hon’ble Supreme Court has held that when the photographs of the accused were shown to the witnesses before holding the TIP, such identification becomes meaningless and no reliance would be placed thereon. Same is the view expressed in the case of Vijayan (Supra) also. In the instant case the photographs were shown to the PW-2 before holding the TIP and their names also disclosed to him as Dolu Chakma and Lombu Thapa and thereafter, the TIP was held and thereafter, trial was held wherein, the PW-2 has identified the two appellant. Thus, to the considered opinion of this Court, no reliance could be placed upon the evidence of PW-2. Mr. D. Panging, the learned Amicus Curiae has rightly pointed this out during his argument and we record concurrence to the same and the ratio laid down in the cases referred by him also fortified his submissions. Though the learned Addl. P.P. relying upon the ratio laid down in Siddartha Vasist @ Manu Sharma (supra) and Anil Kumar (supra) tried to impressed upon this court that the evidence of PW-2 can be relied upon, which is sustentative evidence and also the same received corroboration from the TIP, yet, in view of our discussion and finding, the submission of the learned Addl. P.P. relying upon the ratio laid down in Siddartha Vasist @ Manu Sharma (supra) and Anil Kumar (supra) tried to impressed upon this court that the evidence of PW-2 can be relied upon, which is sustentative evidence and also the same received corroboration from the TIP, yet, in view of our discussion and finding, the submission of the learned Addl. P.P. is found to be devoid of any substance. 21. It also appears that PW-10, the Executive-Magistrate-cum-JMFC has recorded confessional statement of accused Lombu Thapa (P/Exh-9). But, perusal of the same reveals that the said statement which the PW-10 has recorded is exculpatory in nature and as such it cannot be termed as confessional statement and no value could be attributed to such a statement. Though the learned Addl. P.P. has placed reliance upon the said confessional statement and argued that the prosecution side has succeeded in bringing home the guilt of the appellant, yet such a submission left us unimpressed. 22. Thus, it appears that though the prosecution side has succeeded in establishing the first ingredient, i.e. kidnapping of or abduction of PW-1 and 2, to pay a ransom, yet it has failed to establish the second ingredient i.e. threatening to cause death or hurt to such person, or by their conduct gives rise to a reasonable apprehension that PW-1 and 2 may be put to death or hurt. Admittedly, PW-3, the informant has neither seen any injuries on the persons of PW-1 and PW-2, nor do they disclose any assault by the kidnappers. PW-2 also admitted that he was neither harassed nor subjected to any physical torture. PW-1 also uttered not a single word in this regard. And as such it cannot be said that the prosecution side has succeeded in proving the second ingredient, which has to be proved to bring the case under the purview of the section 364(A) IPC, as held in the case of Shaik Ahmed (supra). Thus, we find the evidence on the record, grossly inadequate to bring home the ingredient No. 2 of the charge under section 364(A) IPC against the appellant. 23. There is also no consistency in the versions of the prosecution witnesses. According to PW-1 two persons being armed with weapons, kidnapped them and two more persons joined them at the jungle. According to PW-2, PW-3 and PW-4, four persons kidnapped them. 23. There is also no consistency in the versions of the prosecution witnesses. According to PW-1 two persons being armed with weapons, kidnapped them and two more persons joined them at the jungle. According to PW-2, PW-3 and PW-4, four persons kidnapped them. Whereas, PW-7, who is another victim, testified that they were kidnapped by five kidnappers and that too on 01.11.2013, whereas, the occurrence took place on 01.12.2012. Moreover, PW-7 also testified that the kidnappers covered their faces with clothes and therefore he could not identify them. No doubt these contradictions are minor in nature. But, together with other facts and circumstances on the record these can go a long way to raise reasonable suspicion about the veracity of the prosecution version. The learned Amicus Curiae has rightly argued in this regard and the laws propounded in the case of Harchand Singh (supra) also strengthen his argument. 24. We have also considered the submission of learned Addl. P.P. and also carefully gone through the other case laws referred by her and in view of our discussion and finding here in above, we are unable to record concurrence to her submission and the ratio laid down in the cases referred by her, to the considered opinion of this court, are not applicable in all force to the facts and circumstances here in this case. And therefore, we are not inclined to burden this judgment with the discussions made in the aforesaid cases. 25. In the result, we find sufficient merit in these appeals. And accordingly, both the appeals stands allowed. Conviction and sentence of appellant Dolu Chakma and Lombu Thapa, under Section 364 A IPC stand set aside. They shall be released forthwith, if their detention is not warranted in any other case. 26. Before parting with the record, we sincerely acknowledge the assistance rendered by Mr. D. Panging and Ms. O. Perme, the learned Amicus Curiae. The Registry shall pay the remuneration, to which they are entitled to, as per rule, on production of a certified copy of this judgment.