Ram Charitar Sharma vs The State of Jharkhand

This appeal is directed against the judgment of conviction and order of sentence dated 18.6.2002 and 19.6.2002 respectively passed by 1st Additional Sessions Judge, Garhwa in Sessions Trial No. 442 of 1999/61 of 2001 whereby and whereunder the appellant was convicted u/s 364A and 386 of the IPC and sentenced to undergo imprisonment for life for the offence u/s 364A of the IPC and also ordered to undergo R.I. for three years for the offence u/s 386 of the IPC. However learned court below directed that both the sentences would run concurrently.

The case of prosecution in short as per the written report of P.W. 8 is that on 17.6.1999 at about 9 p.m., the main door of the informant''s house was knocked by unknown persons. The informant''s father opened the door. The informant followed his father and went behind him. Three unknown persons standing there threatened his father on the point of pistol. The informant was also threatened at the point of pistol. In the meanwhile, the appellant who is married in this village arrived there and talked with them intimately. The said unknown persons then commanded the informant to show them way to go out of the village. The informant was taken out of the village forcibly under the Sangwaria Railway Bridge, and was forced him at the point of pistol to write a letter to his father to bring a cash of Rs. 4 lacs, four items of gold ornaments, a pistol and cartridges as ransom for releasing him. He wrote a letter under threat in torch light provided by the miscreants. Ramawatar Sharma was in cordial conversation with them. It is stated that the aforesaid letter was given to Ramawatar Sharma with a direction to hand it over to informant''s father. It is stated that thereafter they tied his hand and took him to a lonely place and kept him in a cave. The next date, the informant was brought near a river. In the night at about 9 p.m. the appellant and Ramawatar Sharma arrived there and informed that the ransom amount has been paid and the same has been kept and concealed. They asked them to release the informant. But the gang leader insisted them to bring money before his release. Thereafter appellant went towards east along with the gang leader and returned after some time. The informant was released thereafter. The informant, Ramawatar Sharma and the appellant, returned to the village on 19.6.1999. It is stated that thereafter villagers apprehended the appellant and enquired from him. The appellants then confessed his guilt and stated that on his direction, informant was abducted by the miscreants. He also disclosed their name as Rajendra Ram, Sukhdeo Chamar and Raghu Mahto. The informant claimed to identify the three unknown persons, who had abducted him for ransom.

On the basis of aforesaid written report, police instituted Meral P.S. Case No. 62 of 1999 u/s 364A and 386 of the IPC and took up investigation. After completion of investigation, the charge sheet was submitted against the appellant. Cognizance was taken and the case was committed to the court of sessions as the offence u/s 364A of the IPC was exclusively triable by the court of sessions. The prosecution examined altogether 10 witnesses in support of its case. The prosecution also brought on record Ext. - 1 the seizure list, Ext. - 2 written report and Ext. - 3 the FIR. The appellant was also examined u/s 313 of the Cr.P.C. in which his defence was of total denial. Learned court below relying upon the evidences of P.W. 1, 3, 8 and also taking into account that on the confession of appellant, Rs. 18,400/- was recovered by the I.O. (P.W. 2), convicted and sentenced the appellant as aforesaid, against that the present appeal has been filed.

It is submitted by learned Counsel for the appellant that the statement of P.W. 3 and 8 that this appellant had come at the house of informant and was talking with the three unknown criminals, does not find support from the evidence of P.W. 10 who is the father of informant. The aforesaid statement of P.W. 3 and 8 also does not find support from the evidence of P.W. 1 Ramawatar Sharma. It is submitted that P W. 10 has specifically stated that only three unknown persons had come to his house on the date of occurrence and had taken away his son. P.W. 10 did also not identify the appellant in the dock, though he claimed that he can identify the miscreants who had taken away his son and who had brought the letter. Learned Counsel for the appellant further pointed out that P.W. 1 has stated in his examination-in-chief itself that 4-5 persons had knocked at his door in the night of 17.6.1999 out of whom he only identified Pintu (Informant). Thus P.W. 1 has not stated that appellant was accompanying with three unknown persons, who had taken away the informant. Accordingly the evidences of P.W. 3 and 8 that this appellant had arrived shortly after the arrival of three unknown persons cannot be accepted. P.W. 10, who is the father of informant has categorically stated that the letter was not delivered to him by the appellant, nor he had given ransom money to him. The aforesaid statement of P.W. 10 gives a fatal blow to the case of prosecution. It has been further submitted that even the said letter was not produced in court and an adverse inference has to be drawn against the prosecution. The alleged confessional statement of the appellant is also not brought on record; therefore, it is not proved that Rs. 18,400/- was recovered by the police on the confession of appellant. Though learned court below has convicted the appellant, taking into account the alleged recovery of Rs. 18,400/- on his confession, no opportunity was given to the appellant to explain the aforesaid circumstance as no question to that regard was put to him while taking his statement u/s 313 Cr.P.C. It has been submitted that aforesaid omission on the part of learned court below rendered the impugned judgment illegal.

On the other hand, learned Additional P.P. submitted that P.W. 1, 3, 8 and 9 have stated in their evidence that the ransom money was given to the appellant and he after taking the ransom money arranged release of the informant. It is also submitted that on the confession of the appellant, Rs. 18,400/- was recovered from his house. Thus there is ample evidence against the appellant showing that he is involved in the present crime. Accordingly, it is submitted that the appellant has been rightly convicted and sentenced by learned court below.

Having heard the submissions, we have gone through the record of the case and scrutinized the evidences carefully. P.W. 3 (mother of informant) and P.W. 8 (informant) have stated that in the night of 17.6.1999 at about 9.30 p.m., three unknown persons knocked at their door. When the informant''s father (P.W. 10) opened the door three unknown person and the appellant arrived there. These witnesses further stated that aforesaid unknown persons forcibly took the informant with them asking him to show the way for going out of the village. The appellant had also accompanied them. But the aforesaid evidence does not find support from the evidence of P.W. 10, who is the father of informant. P.W. 10 has categorically stated that only three unknown persons had come to his house on the date and time of occurrence and they had taken his son (informant) to show the way out to the village. P.W. 10 has not taken the name of this appellant. P.W. 8 has deposed that while he was going with the miscreants and the appellant, they had taken Ramawatar Sharma (P.W. 1) with them in the way. P.W. 1 has stated that in the night of 17.6.1999, 4-5 persons came to his house and got his door open, among them he identified Pintu (the informant). This witness has not taken the name of the appellant. Thus, we find that the statements of P.W. 3 and 8, which were heavily relied by learned court below, did not find support from the evidence of P.W. 1 and 10.

P.W. 1, 3, 8 and 9 have stated that in the night, the appellant and Ramawatar Sharma (P.W. 1) had brought a letter and handed it over to P.W. 10, but P.W. 10 has denied the same and stated in his deposition that one unknown person had brought and handed over the letter to him. P.W. 10 in his examination-in-chief has claimed to identify the person who had brought the said letter, but he categorically stated that the said unknown person is not present in the dock. Though the appellant at that time was present, he did not identify him. This witness at paragraph No. 4 has categorically stated that appellant had not brought that letter. Thus, in view of the aforesaid statement of P.W. 10, the evidence of P.W. 1, 3 and 8 does not inspire confidence. P.W. 1, 3, 8 and 9 have also stated that ransom money of Rs. 75,000/- was handed over to this appellant by P.W. 10, but, P.W. 10 at paragraph No. 4 has stated that the appellant had not taken any money from him. The aforesaid evidence of P.W. 1, 3, 8 and 9 is, thus, also not acceptable.

It appears from the statement of P.W. 2 and 7 that the alleged letter was seized by the police. But from the statement of P.W. 7 and 8, it appears that the said letter was not produced in the court. Under the said circumstance, it is doubtful that the said letter was handed over to the informant''s father. An adverse inference has to be also drawn against the prosecution for non production of the said letter.

P.W. 2 who is the Investigating Officer of this case has stated that the appellant had confessed his guilt and on the basis of his confession Rs. 18,400/- was recovered from his house. But from perusal of record, we find that the said confessional statement has not been brought on record and not proved by the I.O. From the seizure list (Ext.-1), we find that the said seizure was made in presence of witnesses Mahendra Chandravanshi and Harinath Yadav, but the said witnesses have not been examined in this case. Thus, we find that even the recovery of Rs. 18,400/- from the house of appellant has not been proved. Under the circumstance, we do not find any legal basis to support the conclusion of learned court below that Rs. 18,400/- was recovered from the possession of this appellant.

That apart, mere recovery of Rs. 18,400/- from the possession of this appellant, cannot be a ground for his conviction u/s 364A and 386 I.P.C. Because the appellant was not given any opportunity to explain the said circumstance by putting any question to that regard in his examination u/s 313 of the Cr.P.C. It is imperative upon the court to narrate all the circumstances to the accused and ask for his explanation for convicting the accused on the basis of those circumstances. It is well settled that if question regarding any circumstance is not put to the accused and his explanation is not sought, the said circumstance cannot be used for convicting him. Thus, in our view, aforesaid omission on the part of learned court below is a serious infirmity, which renders the impugned judgment illegal.

In view of the aforesaid discussions, we find that the prosecution failed to prove the charges leveled against the appellant beyond the shadow of all reasonable doubt. The impugned judgment of conviction and order of sentence suffer from material illegality and infirmities and the same cannot sustain.

In the result, this appeal is allowed. The impugned judgment of conviction dated 18th June, 2002 and order of sentence dated 19th June, 2002, passed by Sri S. Kunkal, learned First Additional District & Sessions Judge, Garhwa, in Sessions Trial No. 442 of 1999/61 of 2001 is hereby set aside. The appellant is acquitted of the charges. The appellant, above named is directed to be set at liberty forthwith, if not wanted in any other case.