Anil Kumar Jha @ Laltu & Anr vs State Of West Bengal

Suvra Ghosh, J

Both the appeals are directed against judgment and order dated 17-08-2017 and 18-08-2017 passed by the learned Additional District and Sessions Judge, Fast Track, 5th Court at Alipore, 24 Parganas South in Sessions Trial No. 03(04)/2009 corresponding to the Sessions Case No. 107 (09)/2008. By the judgment and order impugned, the Learned Trial Court convicted the appellants for commission of offence punishable under Section 364A/120B of the Indian Penal Code and sentenced them to imprisonment for life and a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for three months for offence punishable under Section 364A of the Indian Penal Code and to imprisonment for seven years and fine of Rs.3,000/-, in default to suffer rigorous imprisonment for another one month for offence punishable under Section 120B of the Indian Penal Code.

The prosecution case, in a nutshell, is that on 19-04-2008 one Brij Behari Shaw lodged a missing diary before the officer-in-charge, Bhawanipore Police Station to the effect that his son Abhisekh Shaw aged about 11 years and a student of class VII in Adarsh Hindi High School at Ramgarh, Kolkata went to school at about 12:00 noon for his examination and after appearing for his examination, did not return home. At about 10:20 PM, the complainant's neighbour Pritam Singh received a phone call asking him to call Chanda Shaw, the elder daughter of the complainant and when Chanda took the call, she was informed over telephone that her brother would return home the next morning in lieu of some ransom.

On 20.04.2008, the missing diary was treated as First Information Report and Bhowanipore Police Station Case No. 101/2008 was registered under Section 364A of the Indian Penal Code (in short the IPC). The investigating officer submitted charge sheet against the petitioners and another namely Subodh Maity after completion of investigation, under Section 364A/120B of the IPC. Charge was framed against the four accused persons under Section 364A/120B of the IPC and upon the substance of accusation being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. The prosecution, accordingly, examined twelve witnesses in support of its case and the defense case, as it appears from the trend of cross-examination of the witnesses as well as statement of the accused under Section 313 of the Cr.P.C., is a denial of the prosecution case and a plea of innocence.

Upon consideration of the entire material on record as well as argument canvassed on behalf of the accused persons and the State, the Trial Court, vide judgment and order dated 27-08-2013 and 29-08-2013 acquitted accused Subodh Maity from the offence alleged and convicted the petitioners.

The petitioners preferred three separate appeals against the said judgment and order before this Court and in disposing of the said appeals, a co-ordinate bench of this Court remanded the matter back to the trial Court for recording statement of the appellants under Section 313 of the Cr.P.C. in the light of the observation made in the body of the judgment and to take a fresh decision on the basis of the evidence already available on record in addition to the statement of the appellants recorded in course of such examination. In compliance with the said judgment, the Learned Trial Court recorded statement of the petitioners under Section 313 of the Cr.P.C. in addition to the statement already on record and proceeded to write out a fresh judgment dated 17-08-2017 and 18-08-2017, convicting the appellants.

The appellants reiterated the exercise of coming up in the present appeal against the said judgment before this Court and in the course of hearing the appeals, this Court observed as follows:- "It is trite law that the trial Court while conducting the proceeding upon remand ought to scrupulously comply with the directions given by the appellate court. This having not been done in the present case, we are of the opinion that further questions with regard to the demand of ransom money over telephone for releasing P.W. 2 and holding out threats to cause death of P.W. 2 in case of non-payment of ransom money ought to have been placed to the appellants during their examination." This court directed the trial Judge to hold further examination of the appellants under Section 313 of the Cr.P.C. with regard to the aforesaid issues and place the same before this Court for adjudication of the appeals. Accordingly such questions were put to the accused while examining them further under Section 313 of the Cr.P.C. and the records were placed before this court for adjudication.

It is submitted on behalf of the appellants that the case requires to be remanded back to the trial court for a third time as the Trial Court failed to afford any option to the appellants while examining them under Section 313 of the Cr.P.C. with regard to adducing evidence in support of their defence. Upon such option being given by this court to the appellants, learned advocate submits that the appellants do not intend to adduce such evidence. Therefore, scope for further examination of the appellants on that score does not arise.

It is further submitted by the appellants that the ransom call allegedly made by the appellants was not proved by calling for the call details with regard to the telephone number which transpired in course of investigation.

It is a fact that seizure and verification of the relevant call register would have come to the aid of the prosecution in establishing the ransom call. However, the evidence of the de facto complainant (P.W.1), the victim boy (P.W.2), Gopal Das (P.W.3), Chanda Shaw (P.W.4) and Chandan Singh (P.W.5) which has passed the test of rigorous cross-examination depicts a clear and unambiguous picture regarding the demand and payment of the ransom amount. These witnesses unanimously stated that the kidnappers demanded ransom for release of the victim boy over telephone. The victim's sister was informed about the ransom on 19.04.2008 and on the following day an amount of Rs.50,000/- was demanded through a phone call received by Chandan Singh. The ransom amount was carried to the kidnappers by the de facto complainant and Gopal Das, following which victim Abhishek Shaw returned home. Therefore, omission to seize or produce the call register can be termed as a lapse on the part of the investigating agency which does not strike at the root of the prosecution case, moreso, as demand and payment of ransom have been substantiated by the evidence on record. The entire prosecution case cannot be diluted on such count.

Thirdly, learned advocate for the appellant submitted that the appellants who collected the ransom amount were seen from the top of the bridge by the de facto complainant and Gopal Das and it is improbable that such miscreants could be identified by them.

It is evident from the record that the de facto complainant identified appellants Anil Kumar Jha and Raj Kumar Rabi Das as the persons who received the ransom. Gopal Das also identified all the appellants as the alleged miscreants who kidnapped the child on the relevant date. A portion of the ransom was recovered from the possession of Anil Kumar Jha and Manash Dey. So there remains not an iota of doubt with regard to the identification of the appellants who collected the ransom.

The State supported the judgment impugned and submitted that the prosecution succeeded in establishing the guilt of the appellants beyond reasonable doubt and the judgment impugned does not suffer from illegality or irregularity.

The earlier appeals preferred by the appellants before the co-ordinate bench of this court were disposed of and the order of conviction and sentence were set aside partially to the extent of examination of the appellants with regard to demand of ransom over telephone, holding threats to cause death of P.W.2 in case of non-payment of the amount and partial recovery of ransom money. The remaining portion of the judgment which forms the entire body of the judgment was affirmed as is implicit in the judgment itself. In compliance with the direction of this Court, the appellants were examined further under Section 313 of the Cr.P.C. and no new stance was taken by the appellants in course of such examination which calls for further deliberation upon the legal as well as factual aspects of the case reflected in the earlier judgment of this Court.

The factual scenario of the case rests on the evidence of the victim boy himself as well as other witnesses. The victim Abhishek Shaw who was a 12 year old boy and a student of Class VII at the relevant time stated that while returning from his school after 3:00 PM, he was taken by a boy in a motorcycle towards Hazra under a bridge where he was handed over to another boy who took him near Rahul Hotel at Hazra. The earlier boy with the motor bike came there with another boy and the boy with the motor bike left the place. The victim was taken to a room by the other two boys in a taxi and confined there. In the next morning, the victim was shifted to another place where he was allowed to speak to his uncle Uttam Shaw over mobile phone handed over to him and the miscreants also demanded ransom through the phone for his release. P.W. 2 further contended that two of the boys went to collect the ransom and the 3rd boy remained with him. On receipt of a call about 3:45 PM in his mobile phone, the 3rd miscreant boarded the victim in a bus and allowed him to go home. The victim admittedly did not raise any alarm when he was being taken through public places. But the court should not lose sight of the fact that the victim was a 12 year old boy who, according to his statement, did not avail a bus alone earlier and also did not find any person on the road who was known to him. There is serious doubt as to whether the victim realized that he had been kidnapped or the consequences thereof. So it was not unlikely that the victim chose to remain silent out of ignorance or fear and such conduct of the victim can under no circumstances be held to be abnormal and the entire case made out by the prosecution cannot be brushed aside on that score.

P.W. 1 who is the father of the victim and the de facto complainant of the case lodged missing diary at about 9:30 PM on 19.04.2008 which was registered as an FIR on the following day. On receipt of ransom call by his daughter Chanda on the same day and a similar call by his neighbour Chandan Singh on the following day demanding Rs.50,000/- for release of the victim, P.W. 1 arranged for the money and went to Bally Bridge through Shyambazar and Dunlop with his nephew P.W. 3 (Gopal Das) in a hired taxi. Chandan Singh received another phone call in presence of P.W. 2 and spoke to the victim over telephone and thereafter the ransom amount was thrown down from the bridge as per instruction of the miscreants and was seen to be collected by persons standing below. The victim boy was released from the clutches of the kidnappers and reached home.

P.W. 3 spoke in tune with P.W. 1 and narrated the entire incident. The evidence of P.W. 4, P.W. 5 and P.W. 7 is also in conformity with the prosecution case. In fact, the evidence of all the material witnesses withstood the rigours of cross-examination and consideration of their evidence as a whole lead to the irresistible conclusion regarding the guilt of the appellants. The appellants were identified as the alleged miscreants by the de facto complainant and P.W. 3 (Gopal Das).

The learned Trial Court, in the judgment impugned, dealt with every aspect of the evidence on record in arriving at a conclusion regarding the guilt of the appellants and such conclusion is based on correct and proper appreciation of the facts and law. In the earlier judgment of this court partially affirming the trial court's judgment, this court held that the essential ingredients of offence under Section 364A/120B of the Indian Penal Code were satisfied. The direction of this Court regarding further examination of the appellants has not led to any circumstance warranting fresh consideration by this court. The decision making process of the trial court was considered and accepted by this court which held that no contradiction, much less material contradiction was found in the evidence on record. As the portion of the judgment of this court directing further examination of the appellants under Section 313 of the Cr.P.C. has been taken care of, further elaboration on the factual and legal aspects of the case shall only amount to reiteration of the conclusion arrived at by this court earlier.

Upon consideration of the attending facts and circumstances of the case, law on the point as well as in the light of the observations made hereinbefore, there is no impediment to hold that the chain of circumstances is so complete that it is incompatible with the innocence of the appellants and there can be no other alternative but to hold that the appellants are the perpetrators of the crime alleged. The ingredients of offence punishable under Section 364A/120B of the Indian Penal Code have been substantiated against the appellants and there is no illegality, irregularity or infirmity in the judgment impugned which calls for interference by this court.

Accordingly, C.R.A. 518 of 2017 and C.R.A. 534 of 2017 are dismissed.

Judgment and order dated 17.08.2017 and 18.08.2017 passed by the learned Additional District and Sessions Judge, Fast Track, 5th Court at Alipore,

24 Parganas South is affirmed.

Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.

I agree.