Criminal Appeal No.868 of 2004
With
Criminal Appeal No.837 of 2004
With
Criminal Appeal No.1174 of 2004
Against the judgment of conviction dated 25.3.2004 and order of sentence dated
26.3.2004 passed by the Additional Sessions Judge, FTC-III, Dhanbad in S.T. No.11 of
2003.
Jitendra Kumar Rai.....................Appellant [Cr. App.(D.B) No.868 of 2004]
1.Pappu Singh
2.Pinku Singh..............................Appellants [Cr.App.(D.B) No.837 of 2004]
Sushil Roy @ Shshil Kumar Roy... Appellant [Cr.App(D.B) No.1174 of 2004]
VERSUS
State of Jharkhand......................................................Respondent
For the Appellants: M/s. Mahesh Kumar Sinha, Manish Kumar,
B.N.Ojha, S.N.Singh and S.K.Pandey
For the Respondent: A.P.P
P R E S E N T
THE HON'BLE MR. JUSTICE SUSHIL HARKAULI
THE HON'BLE MR. JUSTICE R. R. PRASAD
By Court: All the four appellants on being found guilty were convicted
under Section 364A read with Section 120(B) and also under Section 379/120(B) of the
Indian Penal Code and were sentenced to undergo imprisonment for life for an offence
under Section 364A/120 (B) and further to undergo R.I. for three years for an offence
under Section 379/120(B) of the Indian Penal Code.
One Mica factory belonging to Alok Rajgaria situates at Tundi Road,
Giridih. The proprietor Alok Rajgaria a resident of Kolkata used to visit his factory at
Giridih once or two in a month.
It is the case of the prosecution that on 12.6.2002 Alok Rajgaria left
Howrah for Dhanbad at 6.30 a.m by Satabdi Express. Before he left, he instructed his
driver, Jitendra Kumar Rai (appellant) to take his car to Dhanbad on 11.6.2002 itself so
that he may receive him at Dhanbad Station in the next morning to come to Giridih.
Upon reaching Dhanbad Alok Rajgaria made a call to the Head office at Kolkata at
9.20 a.m. about his arrival at Dhanbad. When he did not reach Giridih till 1 p.m, a staff
of the factory at Giridih informed about it to the Head office at Kolkata as generally he
used to reach Giridih from Dhanbad by 11.30 a.m. When Dilip Kumar Rajgaria
(P.W.4), elder brother of Alok Rajgaria, came to know that his brother has not reached
Giridih, he sent one Kaushik Chatterjee, the informant (P.W.5) to Dhanbad. By the time
he reached to Dhanbad, a staff from Giridih had also reached at Dhanbad. They made
enquiry in this respect and came to know that the appellant Jitendra Kumar Rai, who
had stayed in the house of Balram Prasad had left for station at 8 a.m. But nothing
further could be known about the whereabouts of Alok Rajgaria and his driver.
Therefore, on 13.6.2002, the said Kaushik Chatterjee submitted a written information
suspecting therein that someone with a view to extort money has kidnapped Alok
Rajgaria. Further case of the prosecution is that in the late night of
13.6.2002 a call was received by Dilip Kumar Rajgaria (P.W.4) the elder brother of the
victim Alok Rajgaria whereby miscreants informed him about the kidnapping of his
brother and asked for heavy ransom . Dilip Kumar Rajgaria informed about it to the
Superintendent of Police, who asked him to have I.D caller on telephone. When on the
next day i.e. on 14.6.2002 a call was made again, number was known and then from
the office of Reliance, it could be detected that the Mobile belongs to Pappu Singh and
Pinku Singh. Upon locating the place, a raid was laid at a house which belonged to
Pappu Singh and Pinku Singh (both appellants) from where Alok Rajgaria and the
driver were recovered and one person Sushil Kumar Roy, the appellant who was
guarding them by having gun was arrested.
Thereafter the police took the statement of the victim under Section 161
and also got his statement recorded under Section 164 of the Code of Criminal
Procedure. From his statement it transpired that while he was coming to Giridih on his
car being driven by the driver Jitendra Kumar Rai (appellant), some miscreants got the
car stopped on the road and then he as well as the driver were overpowered and were
brought to a place where they were confined in a room. On being asked, he made a
call to his brother (P.W.4) on one day and the other call on the next day. The
miscreants asked for ransom from his brother. The victim also disclosed before the
police about the conduct of the driver suggesting his hand also in the alleged offence.
On completion of investigation, police submitted charge sheet against
these four appellants as well as Manoj Kumar Sinha and Shiv Kumar Singh.
On committal of the case, all the six persons were put on trial wherein the
prosecution examined altogether 8 witnesses. Of them, P.W.1 Balram Jha has simply
testified that the driver Jitendra Kumar Rai had stayed in the night in his house and on
12.6.2002, he left his house at 7-8 a.m. P.W.3, the victim Alok Rajgaria who in his
testimony narrated the manner in which he was kidnapped and was kept confined by
the appellants Pappu Singh and Pinku Singh in their house guarded by Sushil Kumar
Roy. He has also testified about the demand of ransom by the accused persons from
his brother Dilip Kumar Rajgaria, who has been examined as P.W.4 and has supported
the case of the demand of ransom. P.W.5, Kaushik Chatterjee is the informant
whereas P.W.2, Prawin Kumar and P.W.7 Govind Prasad are the Investigating
Officers, who had investigated the case in part but none of them either had recovered
the victim or had arrested the appellant, Sushil Kumar Roy.
The trial court on placing implicit reliance upon the testimonies of the
witnesses did find that it were the appellants who in connivance with each other
kidnapped the victim for ransom. Accordingly, he, while acquitting the accused Manoj
Kumar Sinha and Shiv Kumar Singh, recorded the order of conviction and sentence
against these four appellants.
Being aggrieved with the judgment of conviction and order of sentence,
three appeals, as stated above, have been filed on behalf of the appellants.
Mr. Mahesh Kumar Sinha, learned counsel appearing for the appellant,
Jitendra Kumar Rai submits that the victim Alok Rajgaria (P.W.3) suspected the hand
of this appellant in the alleged offence for the reason that the appellant on the day of
occurrence had taken the car to a petrol pump for taking petrol, though, according to
P.W.3, they generally do not use to take petrol in the way and that P.W.3 on being
suspicious of being followed, when asked the driver (appellant) to drive the car
speedily, he did not heed to his request. But this witness had never stated all these
things in his statement under Section 164 of the Code of Criminal Procedure and as
such, the circumstances put forth before the court which were taken to be incriminating
against the appellant is pure concoction which was never taken into consideration by
the trial court and hence, the trial court committed a grave error in recording the order
of conviction on those materials.
Learned counsel further submits that innocence of this appellant would be
evident from the fact that both this appellant and the victim after being kidnapped were
confined together and while they were under confinement, P.W.3 just asked from this
appellant as to how this has happened. This fact as well as the fact that the appellant
right from the day of his recovery was in custody of the police but was never arrested
for four days clearly establish the innocence of this appellant, still the trial court
recorded the order of conviction and sentence and hence, the impugned judgment is fit
to be set aside.
Learned counsel appearing for the other appellants, Pappu Singh and
Pinku Singh submits that no documentary evidence was adduced on behalf of the
prosecution that a Mobile from which call was made to the brother of the victim belongs
to these appellants. At the same time the prosecution has failed to establish that the
house from where the victim (P.W.3) as well as the driver were recovered belongs to
these appellants. Therefore, the appellants deserve to be acquitted from all the
charges.
Lastly, learned counsel appearing for the appellant Sushil Kumar Roy
submits that though the appellant is said to have been arrested from the house at the
time of recovery of the victim and the driver, Jitendra Kumar Rai but the Police Officer
who had arrested this appellant has not been examined by the prosecution. In such
eventuality evidences of P.W.2 and P.W.7 the Investigating Officers regarding arrest of
the appellant will hardly carry any significance.
It was also submitted that this appellant and other appellants have been
also convicted under Section 379/120(B) of the Indian Penal Code but there has been
absolutely no evidence establishing commission of the offence of theft of the car by
this appellant. Moreover, no question whatsoever was put to this appellant under
Section 313 of the Code of Criminal Procedure relating to theft of the car and hence,
the order of conviction and sentence passed against this appellant is fit to be set aside.
Perused the records. From the evidence of P.W.3, the victim, it does
appear that on 12.6.2002 when P.W.3 reached Dhanbad Station by Satabdi Express,
he did not find his driver present over there. However after 10-15 minutes, he met with
the driver and then left for Giridih. In the way, the appellant, Jitendra Kumar Rai asked
the victim to take fuel from a petrol pump. They took petrol from a petrol pump but at
earlier occasions, they had never taken petrol in the way. When they proceeded
ahead, the victim noticed that they are being followed by a car and sensing some
danger, he asked the driver, the appellant (Jitendra Kumar Rai) to speed up of the car
but the driver did not pay any heed to it. After a while, a truck coming from the opposite
direction blocked the road, as a result of which, the car got stopped. Thereupon, the
miscreants came there and overpowered him as well as the driver and both were made
to sit in the rear seat of the car. They were taken to a place where they were kept till
11 p.m. Thereafter they were taken to another village 3-4 km. away on foot and kept
them confined in a room, where they remained confined till 10 p.m. of the next day.
Thereafter the miscreants took the victim about 1 km. away, from where the
miscreants asked for ransom from his elder brother, Dilip Kumar Rajgaria (P.W.4) on
Mobile. At that point of time, both the appellants, Pappu Singh and Pinku Singh along
with others were present there. Further it appears from the evidence of P.W.7 that as
soon as P.W.4 received a call from the miscreants, he informed it to the
Superintendent of Police, who advised him to have I.D. caller so that number be
traced. According to the victim, the next day, i.e. 14.6.2002 again the miscreants
asked for ransom. Thereupon, as per the evidence of P.W.7, number was traced and
then raid was laid and the victim as well as driver were recovered from the house of
Pappu Singh and Pinku Singh. At the same time, the appellant, Sushil Kumar Roy,
who was guarding them, was arrested with a gun.
On being recovered, the statement of P.W.4 was recorded on 17.6.2002
under Section 164 of the Code of Criminal Procedure wherein he did not speak about
the conduct of his driver showing his culpability in the alleged offence but
subsequently, P.W.4 seems to have made statement under Section 161 of the Code of
Criminal Procedure disclosing therein about the conduct showing his involvement in
the alleged offence. This witness in course of evidence also stated about the conduct
of the driver which unerringly points towards his guilt. Those conducts narrated by
P.W.3 is that normally the driver used to be at the platform in the station in time but on
the day of occurrence, he was quite late and that they never took petrol in the way but
on that day, the driver took fuel from a petrol pump and that when the victim noticed
that they are being followed by someone, he asked the driver to increase the speed of
the car but he did not do it. Since these statements are not there in a statement under
Section 164 of the Code of Criminal Procedure, a plea was taken that these facts are
concocted in order to implicate the appellant. We do not find any substance in the
submission for the reason that driver working since last 10 years was quite trusted and
had never given any occasion to P.W.3 for suspecting him to be unfaithful and
therefore, off hard it is not expected from P.W.3 to take those action of the driver to be
the part of the conspiracy. Moreover, P.W.3 who was recovered after 3 days must not
have kept himself fully composed, rather must be under a trauma and thereby he
would have been unable to assimilate the conduct/actions of the appellant to come to
any conclusion. Probably for that reason P.W.3 at the first instance when made
statement under Section 164, did not say anything with respect to conduct/action of
Jitendra Kumar Rai but when the victim would have come out of the trauma, he may
have assimilated the sequence of the conduct/action of the appellant which the
appellant shown in course of journey from Dhanbad to Giridih and then realized said
conduct to be suspicious being part of conspiracy. Therefore, whatever was stated
before the police or deposed against the appellant showing his culpability cannot be
taken to be an embellishment or concoction as this kind of offence is generally
committed only when the criminal gets a tip-off from the close aide of the victim. We
have already noticed that there was delay on the part of appellant in reaching Dhanbad
Railway Station and caused further delay in consuming time in taking petrol and then
driving the car slowly in spite of being asked to accelerate the speed of the car
certainly go to prove the culpability of the appellant.
Coming to the case of other appellants, we do find from the evidence of
the victim (P.W.3) itself that the house where P.W.3 was confined and from where
recovery was made belongs to Pappu Singh and Pinku Singh. That apart, it has also
come in the evidence of P.W.7 that the Mobile from which call was made belongs to
these appellants and moreover, as per the evidence of P.W.3, these two appellants
were present at the place of confinement and also at the place where the victim was
taken from where call was made and therefore, the victim being in constant touch was
able to know the name of Pappu Singh and Pinku Singh. That apart, P.W.3 has
identified them also at the time of his evidence. Therefore, there does not appear to be
an iota of doubt in the culpability of the appellants.
So far the appellant, Sushil Kumar Roy is concerned, he, as per the
evidence of P.W.7, was arrested at the spot while he was having a gun with him. It is
true that P.W.7 had not arrested the appellant and that the person who arrested him
has not been examined but this does not affect the case of the prosecution adversely
in view of the evidence of P.W.3, the victim wherein he has testified that the police in
course of getting them released from the custody of the miscreants, arrested Sushil
Kumar Roy with firearms and that he was all along with them from the time he was
kidnapped till recovery. Therefore, it was quite obvious that the victim could know the
name of this appellant who was in constant touch with the victims.
Therefore, we do find that the prosecution has been able to establish the
involvement of all the four appellants in the offence of kidnapping for ransom and
hence, they have rightly been convicted and sentenced by the trial court. Accordingly,
this part of the judgment and order is affirmed.
So far the offence under Section 379/120(B) of the Indian Penal Code is
concerned, there has been no specific evidence that the appellants committed theft of
the vehicle belonging to the victim. Moreover, incriminating materials showing
culpability of the appellants in the offence of theft has never been explained to the
accused person under Section 313 of the Code of Criminal Procedure. Thus, the
appellants seem to have wrongly been convicted under Section 379 read with Section
120(B) of the Indian Penal Code and hence, they are acquitted of the charge under
section 379 read with section 120(B) of the Indian Penal Code.
Accordingly, these three appeals are allowed in part.
( Sushil Harkauli, J.)
( R.R. Prasad, J.)
Jharkhand High Court, Ranchi
The 4th February, 2011
N.A.F.R/ N. Dev