Vikash Kumar Singh @ Bikash Kumar Singh vs State Of Jharkhand

Gautam Kumar Choudhary, J

Judgment of conviction and order of sentence by which this appellant has been convicted under Section 364 of the Indian Penal Code, is under challenge in the instant appeal.

As per fardbeyan recorded on 25.12.1997 at 9:30 hours of Dayanand Mishra, father of deceased-Rakesh Mishra @ Pintu aged 20 years, on the last night of 24.12.1997 at 8:15pm his son was reading at home when Vikash Kumar Singh and Ajit Kumar Jha came on a scooter to his house. They called him and took his son with them on the scooter, although at that time his son was not willing to go with them as he was wearing only half pant and pink sweater.

When his son did not return, they became anxious, but he could not be traced out. On the next day, he heard that a dead body was lying near Sarsakuri Bridge and there he found the dead body of his son which bore marks of incised wound over the body.

On the written report, Sindri P.S. Case No. 101 of 1997 was registered under Sections 364, 302, 201/34 of the Indian Penal Code against Vikash Kumar Singh @ Munna, Ajit Kumar Jha on 25.12.1997.

Police, on investigation, submitted charge sheet against both named accused along with one Arvind Kumar Singh under Sections 364, 302, 201/34 of the Indian Penal Code. All the three accused were put on trial to face charges under Sections 364, 302/34 and 201 of the Indian Penal Code.

Altogether ten witnesses were examined on behalf of the prosecution and relevant documents including the postmortem examination report and inquest report were adduced into evidence and marked exhibits.

Ajit Kumar Jha, at the stage of argument, absconded and the trial Court delivered the judgment of conviction against the appellant as well as Ajit Kumar Jha under Section 364 of the Indian Penal Code, while acquitting them on the charges under Section 302/34 of the Indian Penal Code. The co-accused Arvind Kumar Singh was held not guilty and acquitted of all the charges. No sentence has been pronounced against Ajit Kumar Jha.

The judgment of conviction and order of sentence has been assailed on the ground that P.W. 1-Banshi Das, P.W. 2-Manoj Kumar Choudhary and P.W. 8-Suman Kumar, who are the material witnesses, have not supported the prosecution case and have been declared hostile.

It is argued that there is no direct eye witness to the occurrence and the case rest on circumstantial evidence. The prosecution case hinges on the testimony of the informant P.W.-4 and P.W.-3, uncle of the deceased (Mousa) and P.W.-5, mother of the deceased. The place from where the deceased is said to have been abducted is the house of the deceased situated at Qtr. No. K-92, Saharpura under Sindri Police station, Dhanbad, whereas the dead body was found at Sarsakuri Bridge. However, there is no witness to state that the deceased had been seen being taken by the appellant accused on scooter in this area.

The factum of abduction hinges on the testimony of these three witnesses wherein there are material contradictions. As per the deposition of P.W. 4, when the deceased left home along with the appellant and Ajit Kumar Jha on scooter, he was wearing half pant. However, the wearing apparels as noted in the postmortem examination report of the deceased, was white full pant. The doctor, who has been examined as P.W. 6 and conducted autopsy surgery, has deposed in para 11 that he returned a partial burnt white full pant and other wearing apparels of the deceased. It has further been deposed in para 12 that these clothes were found on the persons of the dead body. By making reference to the testimony of the Doctor, it is argued that the testimony of P.W. 4, who claimed to have seen his son leaving along with the accused persons, stands falsified, as he had deposed that the deceased was wearing half pant while leaving home along with the accused persons. It is further argued that in absence of direct eye witness, it was incumbent on the part of the prosecution to prove the charges on the basis of circumstantial evidence which completed the chain, unerringly pointed towards guilt of the appellant in the said offence.

On the point of law, it is argued that Section 364 of Indian Penal Code has two limbs that of kidnaping or abduction in order to commit murder. In the present case, the deceased was major aged about 20 years and, therefore, the offence of kidnapping will not be made out. As far as abduction is concerned, unless there is some evidence to show that force was used or any deceitful means was employed, the said abduction cannot be proved. In the present case, there is sketchy evidence that the deceased had left home on the said night but there is no evidence to show that any force or deceit was used in his taking.

It is argued that mere abduction is not a penal offence, unless it is coupled with intention to commit the murder of the person so abducted. In the present case, there is no evidence to the effect that the deceased was on inimical term with this appellant. There had not been any hot exchange when the appellant went to the house of deceased. In the absence of these evidence, even if it is assumed that the deceased left the house with the appellant, no offence under Section 364 of the IPC will be made out in view of ratio laid down in Badshah & Others Versus State of U.P., (2008) 3 SCC 681 . On the contrary, the mother of the deceased has deposed in para 11 that the accused persons were on visiting term with the deceased. It is further argued that the ratio laid down by the Hon’ble Supreme Court in Sucha Singh Versus State of Punjab, (2001) 4 SCC 375 will not apply in the present case. In the said case, two deceased were abducted by armed extremists with AK 47 rifles and after a while, the witness heard from the house sound of firing. Further, they were also taken forcefully, which is not there in the present case. Further reliance is placed on State of West Bengal Versus Mir Mohammad Omar & Others, (2000) 8 SCC 382 wherein it has been held that force or deceit in committing of abduction, is basic and fundamental ingredient of the offence.

Learned A.P.P. has defended the judgment of conviction and sentence. It is submitted that the law is settled that evidences is to be seen in its entirety, and from the combined reading of the testimony of P.Ws. 4 and 5, who are father and mother of the deceased, it will be apparent that on the fateful evening, this appellant along with co-accused Ajit Kumar Jha, had come to the Quarter of the deceased and was taken by him on their scooter. Thereafter, he was not seen anywhere and his dead body was recovered on the very next morning. It is further argued that this is a case where the deceased was not taken by force, but was taken by deceitful mean.

As far as the point that has been raised regarding the full pant found on the dead body, it is submitted that in the inquest report, there is specific reference of white colour half pant having been on the dead body.

P.W. 3 has deposed that the body was in burnt down condition which has also been noted in the post-mortem examination report.

ANALYSIS

Death of Rakesh Mishra was homicidal in nature, is not in a shred of doubt in view of objective findings of autopsy surgeon, who has been examined as P.W. 6 and the post-mortem examination report which has been proved as Exhibit 2. In the post-mortem examination report, following injuries have been noted:-

(i) Incised wound 1¼” X 1¼” X bone deep on the middle of forehead in hairy area directed horizontally.

(ii) Incised would 3 and ½” and 1 and ¼” X up to bone deep on upper portion front of neck directed horizontally from size to size. Soft tissues, muscle, carotid, arteries, trachea, oesophagus were found severed at the site of the wound.

(iii) Stabed wound with sharp cut margin 4” X 2” X cavity deep just below the xiphisternum directed vertically downward, stomach and descending colen were found protruding out of the wound.

The informant (P.W. 4), who is father of the deceased and mother of deceased (P.W. 5), had attributed the cold blooded murder of their son to this appellant and another co-accused Ajit Kumar Jha. Both of whom were named in the FIR which was lodged on the next date i.e. 25.12.1997 after their son were taken by the named accused persons on scooter.

Learned trial Court has acquitted the appellant of charge under Section 302 for want of direct or circumstantial evidence however, in view of testimony of P.Ws. 4 and 5, the appellant has been convicted under Section 364 of the IPC.

With regard to the charge of abduction, P.W. 4 has stated in para 1 that the incidence took place on 24.12.1997 at 8.15 at night. At that time, he was at his home when he heard the sound of a scooter coming in front of his house. Ajit Kumar Jha and Vikash Kumar Singh had come on the scooter and pressed the call bell. On hearing the call bell, he went outside where there was road light as well as light on veranda. His wife came along with him. His son Pintu also came outside. At that time, he was wearing a light pink colour sweater and half pant.

The accused persons wanted to take Rakesh along with them, but his son was not inclined to go. However, they said there was some urgent and took Rakesh along with them on the scooter. His son did not return thereafter. A frantic search was made for him.

Complicity of the Appellant in the abduction of the deceased at night of 24.12.1997 at 8:15pm, rests on the testimony of the informant PW 4 and his wife PW.5.

The contradiction, that has been taken, is that on hearing the sound of scooter, when the informant came outside, his wife followed him to the gate where the deceased was talking with Vikash Kumar Singh and Ajit Kumar Jha. Further, contradiction that has been taken that accused persons wanted to take Rakesh @ Pintu, but he was not inclined to go with them.

The contradiction that has surfaced in the account of P.W. 5, is that she had asked her son not to go along with the accused persons. As per the testimony of Investigating Officer (P.W. 9), such statement had not been given by this witness. The I.O. (P.W. 9) in para 52 has deposed that P.W. 5 (mother of the deceased) had not stated in her statement to the police under Section 161 of the Cr.P.C. that on hearing call bell, she saw her son along with appellant-Vikash Kumar Singh and Ajit Kumar Jha, leaving at night. In view of this contradiction testimony of P.W. 5 cannot be accepted as that of last seen.

The matter for consideration is whether the factum of abduction is proved on the basis of solitary account of P.W. 4.

The prosecution case rests on circumstantial evidence of last seen. P.W.4 has deposed that the deceased had left home along with this appellant and another co-accused Ajit Kumar Jha and thereafter, on the next day, his dead body was found. P.W. 4 has deposed that the deceased had left his home wearing half pant whereas autopsy surgeon (P.W. 6) has deposed in para 11 and 12 that a partial burnt white full pant was found on the person the deceased. Law is settled that while returning judgment of conviction on the basis of circumstantial evidence, the chain should be complete which should not admit to any inference, other than the guilt of the accused on the offence. The contradictions appearing in the present case, of last seen creates reasonable doubt regarding the complicity of the appellant in the offence and he is entitled to benefit of doubt.

The appellant is given benefit of doubt and the judgment of conviction and sentence passed against him for the offence under Section 364 of the Indian Penal Code is set aside. Sureties are discharged from the liability of their bail bond.

The appeal is allowed.