Calcutta High Court (Appellete Side)
Shadab Siddiqui vs The State Of West Bengal on 20 May, 2022
1
IN THE HIGH COURT AT CALCUTTA
(Criminal Appellate Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Bibhas Ranjan De
C.R.A 268 of 2018
In
I.A No. CRAN 1 of 2019 (Old No. CRAN 2513 of 2019)
In
I.A. No. CRAN 2 of 2020 (Old No. CRAN 1399 of 2020)
Shadab Siddiqui
Vs
The State of West Bengal
With
C.R.A 331 of 2018
In
I.A No. CRAN 2 of 2018 (Old No. CRAN 2285 of 2018)
In
I.A No. CRAN 3 of 2020 (Old No. CRAN 1788 of 2020)
In
I.A No. CRAN 4 of 2020 (Old No. CRAN 1789 of 2020)
Kamran Akhtar
Vs
The State of West Bengal
With
2
C.R.A 341 of 2018
In
I.A No. CRAN 1 of 2018 (Old No. CRAN 1762 of 2018)
In
I.A No. CRAN 2 of 2018 (Old No. CRAN 3033 of 2018)
In
I.A No. CRAN 5 of 2022
Khalid Khan
Vs
The State of West Bengal
For the Appellant in : Mr. Amarta Ghosh, Adv.
CRA 268 of 2018 & Ms. Rituparna De Ghosh, Adv.
CRA 331 of 2018 Ms. Debapriay Mukherjee, Adv.
For the Appellant in : Mr. Ayan Bhattacharya, Adv.
CRA 341 of 2018 Ms. Debapriya Mukherjee, Adv.
Mr. Apalak Basu, Adv.
For the State : Mr. Saswata Gopal Mukherjee, Ld. PP
Mr. Ranabir Ray Chowdhury, Adv.
Mr. Mainak Gupta, Adv.
Heard on : May 13, 2022
Judgment on : May 20, 2022
Bibhas Ranjan De, J.:-
1.
Being aggrieved by and dissatisfied with the judgment an order
dated 12.04.2018 and 13.04.2018 pronounced by the Ld. Chief
Judge, City Sessions Court, Calcutta, all three appeals are
filed. The Ld. Judge convicted all three appellants for the
offence under Section 364A/34 of the Indian Penal Code and
sentenced to suffer imprisonment for life and also to pay a fine
of Rs. 20,000/- each in default to suffer simple imprisonment
for ten (10) months each. Ld. Judge also set of the period of
detention undergone by the appellants during investigation
and trial under Section 428 Cr.P.C.
2. Briefly stated, the facts of the case, as culled out from the case
of the prosecution, are as under:
On 08.03.2008 at about 3 P.M. to 3.30 P.M,
appellant Sahadab Siddiqui @ Aman (hereinafter refer to as
appellant no.1) called the victim Sree Ram Buchasia
(hereinafter refer to as victim) over telephone requesting him
to come to city centre at Salt Lake on the plea of moving
around Calcutta with his girlfriend. Initially, victim Sree
Ram Buchasia did not agree but later on agreed on request
of girlfriend of the appellant no. 1 over phone. At 6.30 P.M.
Sree Ram Buchasia reached at City Centre, Salt Lake but
appellant No.1 was not found there. Then victim contacted
said appellant no. 1 over phone and came to know that due
to traffic jam appellant no. 1 stranded near HSBC Bank.
Victim, then, reached at the place near HSBC Bank and
found appellant no.1 with one cream color Honda City car
but no girlfriend was found. However, victim entered into
the car and immediately thereafter two unknown persons
entered into the car from two opposite side of the car and
pointed fire arm at the victim and asked him not to shout.
Thereafter victim was taken to a deserted place and closed
his eyes and mouth with luco plast. All of his belongings
were snatched away and tied with a chair. One borqua was
put on him. Thereafter, appellant asked the victim to call
her wife to bring cash of Rs. 1.5 crore and victim will be
released thereafter. Accordingly, victim informed his wife
over telephone. Appellant no. 1 left the place and appellant
Khalid Khan and Kamran Akhtar (hereinafter referred to as
appellant no. 2 & 3 respectively), remained there.
3. On the next day again appellant no. 1 came over there and
asked the victim to call his wife again otherwise victim will be
killed. Thereafter, appellant no. 1 took the telephone numbers
of the wife and brother of the victim.
4. After 1 or 2 days again appellant came over there along with
some blank stamp papers and got those papers signed by the
victim. After some days appellant no. 1 settled the demand at
Rs. 40 lac and on that night victim was put in a vehicle and
after one and half hours victim was thrown away from the car
near Dum Dum Airport.
5. Then, victim hired a taxi and came to the residence of his
brother at Phool Bagan. Victim was admitted in Rameswaram
Nursing Home at Ultadanga, on 18.03.2008 and remained
there till 20.03.2018.
6. On 10.03.2018 Sarad Kumar Buchasia, brother of the victim,
already lodged a written complaint addressed to Special I.G,
CID, west Bengal, which was forwarded to Superintendent of
Police, Howrah. Then Shibpur Police Station Case No. 83 dated
17.03.2008 was started Mr. Amit Ray, S.I. of Police took up
investigation on 18.03.2008 Additional Director General of
Police ordered for taking up investigation of this case by the
C.I.D. Then on 19.03.2008 this case was endorsed to one
Pallav Kanti Ganguly, Sub Inspector attached to Special
Operation Group, C.I.D, West Bengal, for investigation.
7. During investigation, Investigation Officer Pallav Kanti Ganguly
visited several places including the place alleged to have been
used for the purpose of confinement of victim. He seized
currency notes and seized the car alleged to have been used for
abduction. He recorded statement of witnesses under Section
161 Cr.P.C. On 16.06.2008 after completion of investigation he
submitted charge sheet against six (6) accused persons
including the appellants under Section 363/364A/120B of
Indian Penal Code.
8. To prove the guilt of the accused/ appellants, prosecution
examined as many as 33 witnesses in support of its case. In
course of evidence several documents were admitted in
evidence as Exhibit 1 to 52 that apart several material were
marked as Mat Exhibit I to XXV.
9. On completion of evidence all three appellants/accused were
examined under Section 313 Criminal Procedure Code. As they
have pleaded that they were innocent and they have been
falsely implicated, they were tried for the aforesaid offences in
the Court of Chief Judge, City Sessions Court, Calcutta, in
Sessions Trial No. 01 (08) of 2013 arising out of Sessions Case
No. 35 of 2011 the Ld. Chief Judge by Judgment dated
13.04.2018 held only three accused i.e. all three appellants of
this appeal for Commission of offences punishable under
Section 364A/34 Indian Penal Code but acquitted rest accused
person of this case.
10. It is pertinent to mention here that on behalf of
accused/appellants one (1) defence witness has been examined
and some documents have been admitted in evidence an
Exhibit A to G.
11. In terms of submissions made by the Ld. Advocates for the
parties to this appeal as well as materials on record following
questions arise for consideration and are to be determined in
this appeal :-
11.1 What are the essential ingredient of Section 364A to be
proved beyond reasonable doubt by the prosecution for
securing the conviction under Section 364A IPC?
11.2 Whether each and every ingredient as mentioned in
Section 364A required to be proved for securing conviction
under Section 364A have been proved.
11.3 Whether there was any evidence or findings by the Ld.
Trial Judge that the accused had committed any offence
within the meaning of offence punishable under Section
364A IPC.
12. The appeal having arisen out of order of conviction under
section 364A of IPC, we need to focus on the provisions of
Section 364A IPC before proceeding further to consider the
evidence in terms of arguments advanced in this appeal.
13. The essential ingredients to convict an accused under
Section 364A IPC which are required to be proved by the
prosecution are as follows:
13.1 Kidnapping of abduction of any person or keeping a person
in detention after such kidnapping or abduction ; and
13.2 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;
13.3 Causes hurt or death to such person in order to compel
the Government or any Foreign State or Governmental
Organization or any other person to do or abstain from
doing any act or to pay a ransom.
14. Therefore, after establishing the first condition, one more
condition has to be fulfilled since after first condition, word
used is "and". So, in addition to first condition either condition
(13.2 or 13.3) has to be proved, failing which conviction under
Section 364A cannot be sustained.
15. Ld. Advocate Mr. Amarta Ghosh, appearing on behalf of
appellants Sahabad Siddique and Kamran Akhtar, submits
that there is material contradiction regarding bar alleged to
have been used for adduction. He submitted that the victim
himself stated about one ambassador Car before the Ld.
Magistrate holding Test Identification Parade contrary to
prosecution case. That apart Investigating Officer did not verify
the owners of the alleged Honda City car.
16. Mr. Ghosh, further submits that the victim stated before
police about his abduction from Shibpur area on 10.03.2008
as it appears from Exhibit D, falsifying entire prosecution case
in our hand. He also pointed out contradictions amongst the
witnesses regarding demand and recovery of ransom. Mr.
Ghosh has further pointed out Exhibit-38 and submitted that
there is nothing mentioned in the memo of Test Identification
Parade as to formal identification.
17. Mr. Ghosh has further contended that Investigating Officer
never placed the seized Honda City car for Test Identification
Parade. It has been further referred to the evidence of the
Investigating Officer (PW-32) who deposed in his cross
examination that the bag containing currency notes had been
found lying at Santragachi Station contrary to the seizure of
ransom.
18. Mr. Ghosh, in support of his contention , has placed
reliance on the following judgments:-
A) Mohd. Faizan Ahmed Vs. State of Bihar (2013) 2
Supreme Court Cases 131.
B) State of U.P Vs. Arun Kumar Gupta (2003) 2
Supreme Court Cases 202.
C) Laxmi Singh & Others Vs. State Of Bihar 1976 SCC
(Crl) 671.
D) Namwar Dubey & Ors. Vs. State of U.P. JT 1995(6)
SCC 222.
E) Shingara Singh Vs. State of Haryana AIR 2004 SC
124.
19. Ld. Advocate, Mr. Ayan Bhattacharya, appearing on behalf
of the appellant Kahalid Khan, advanced argument in the same
tune of Mr. Ghosh. And to add to that, Mr. Bhattacharya
submitted that the statements alleged to have been made
under Section 27 of the Evidence Act were retracted by the
accused in course of their examination under Section 313
Cr.P.C.
20. Mr. Bhattacharya has further submitted that accused
Khalid Khan was never placed in Test Identification Parade for
identification by the witnesses.
21. In support of his argument Mr. Bhattacharya has relied on
following reported judgments:-
A) State of H.P. Vs. Lekh Raj (2000) 1 SCC 247.
B) Rajesh Govind Jagesha Vs. State of Maharashtra
(1999) 8 SCC 428.
C) Ganpat Singh Vs. State of Rajasthan (1997) 11 SCC
565.
D) Nathu Vs. State of U.P AIR 1956 S.C. 56.
E) Satbir Singh Vs. State of Punjab (1977) 2 SCC 263.
F) Dara Singh Vs. Republic of India (2011) 2 SCC 490.
G) Juwar Singh Vs. State of M.P. 1980 (Supp) SCC 417.
22. Per Contra, Ld. Public Prosecutor, Mr. Saswata Gopal
Mukherjee, has referred to the evidence on record and tried to
make this Court understand that in spite of some minor
discrepancies in the evidence and lapses on the part of
Investigating Officer prosecution has been able to establish the
commission of offence beyond reasonable doubt.
23. Ld. Public Prosecutor in support of his contentions has
relied on the following judgements:-
A). Malleshi Vs. State of Karnataka (2004) 8 Supreme
Court Cases 95.
B). Akram Khan Vs. State of West Bengal (2012) 1
Supreme Court Cases 406.
C). Abdul Rahaman Kuji Vs. The State of West Bengal
2014 SCC online Cal 18816.
D). Munshi Singh Gautam and others Vs. State of M.P.
(2005) 9 Supreme Court Cases 631.
24. Having heard the Ld. Advocates on either side, we have given
our thoughtful consideration to the facts and circumstances of
the case and materials place on record.
25. Ld. Judge after examining all available evidence on record
returned the findings as follows:-
"When the evidence on record is analyzed in
the background of 364A of the I.P.C inevitable
conclusion is that the prosecution has clearly
established commission of the said offence.
Oral and documentary evidences adduced
and admitted into evidence on behalf of defence
have not come to prove their defence case and
there is no material in their evidences to discard
the evidences of PW (s) in the matter of involvement
of accused Sahadab Siddique @ Aman, Khalid
Khan and Kamran Akhtar for committing the said
offence.
Several decisions have been referred by the
Ld. Counsel for the Advocate for the defense which
are not lending much support of their defence and
as such I am refraining myself from discussing the
same.
There is sufficient, valid and credible evidence
leading to the irresistible conclusion of the
involvement of the accused persons namely
Sahadab Siddique @ Aman, Khalid Khan and
Kamran Akhtar in the commission of this crime.
After scanning by separating chaffs from the
grains of the entire case and in view of above facts
and circumstances and discussion made above
and after perusing the exhibited documents and in
view of manifold observations in pursuance of
material facts and evidence on record with careful
and anxious consideration to each and every facts
and circumstances in proper scanning as
mentioned above, I am inclined to hold that the
prosecution has been able to prove the charge U/s
364A/34 of the I.P.C against Sahadab Siddique @
Aman, Khalid Khan and Kamran Akhtarbeyond all
reasonable shadow of doubts.
I find no complaint has been lodged by
landlord PW 19 Moni Sankar Sardar from whom
accused Sahadab Siddique @ Aman, Khalid Khan
took his house on rent by giving fabricated, forged
epic in the name of Rupesh Singh and Nilesh Singh.
So, the prosecution has not been able to prove
the commission of offence punishable under Section
419/471 of the I.P.C against the accused persons
namely Sahadab Siddique @ Aman, Khalid Khan
and Kamran Akhtar.
On perusal of the evidence of P.Ws and
materials on record I find that there is no iota of
evidence about the involvement of accused Avishek
Singh in the commission of offence.
So, accused Avishek Singh is liable to be
acquitted from all the charges framed against him.
That all the three accused persons namely
Sahadab Siddique @ Aman, Khalid Khan and
Kamran Akhtar are found guilty for committing the
offence punishavble under Sections 364A/34 of the
I.P.C and accordingly they are convicted but the
accused persons namely Sahadab Siddique @
Aman, Khalid Khan and Kamran Akhtar are not
held guilty for committing the offence punishable
u/s 419/471 of the I.P.C and they are acquitted
from the charge of offence punishable u/s 419/471
of the I.P.C."
26. In this case, prosecution has alleged one incident abduction
of the victim, Sree Ram Buchasia (PW-1) on demand of ransom
on 08.03.2008. PW-1 in his examination in Chief stated that
accused Sahadab Siddiqui @ Aman, known to him, called him
over telephone in City Centre Salt Lake to move around Kolkata
with his girlfriend. But, initially PW-1 did not agree to come out
than accused Sahadab Siddiqui handed over said telephone to
his girlfriend to talk with Sree Ram Buchasia (PW 1). On her
request Sree Ram Buchia (PW-1) came out of his house and
reached near City Centre at Salt Lake but accused Sahadab was
not found there. Thus, on telephonic conversation victim Sree
Ram Buchia Came to know that Sahadab Siddiqui was waiting
near HSBC Bank at Salt Lake due to traffic jam. Thereafter, PW-
1, Sree Ram Buchia reached that place and found accused
Sahadab Siddiqui sitting in a Cream Colour Honda City Car but
that girlfriend was not found there. Accused Sahadab Siddiqui
requested PW-1 Sree Ram Buchia to enter into the car.
Accordingly, Sree Ram Buchasia entered and immediately
thereafter two unknown persons entered into the Car from two
opposite sides of the Car and put fire arms and asked him not to
make any noise. Sree Ram Buchasia (PW-1) was taken to a
deserted place in a clandestine manner after putting leucoplast
on his mouth and eyes and a "Borqua" on his person. He was
kept in a room under custody of those two unknown person. On
the next day, putting Sree Ram Buchasia, PW-1 in fear of injury
and death accused Sree Ram Buchasia asked PW-1 to make a
call to his residence to being a cash of Rs. 1.5 crores, otherwise
he (PW-1) would be killed. Thereafter, Sahadab Siddiqui collected
phone number from PW-1 and called. Then phone was handed
over to PW-1 to talk about demand. Accused Sahadab Siddiqui
also made a call to brother of PW-1. However, demand was settled
at Rs. 40 lakh and victim, Sree Ram Buchasia was released on
17/18 in 2008 at 1/1:30 A.M.
27. During cross examination of victim one specific suggestion
was made to the PW-1 on behalf of the defence and PW-1 replied
as follows:
"It is not a fact that in order to avoid
repayment of loan amount of Rs. 50 lakhs to the
accused Sahadab Siddiqui I have made a
concocted and false story."
28. In cross examination PW-1 has further replied to a question
as follows:
"I lodged the complaint at Jagacha Police
Station after receipt the notice from the advocate of
accused Sahadab Siddiqui demanding refund of a
sum of Rs. 50 lakh from me."
29. PW-2 Sarad Kumar Buchasia brother of the PW-1, has
corroborated the fact of missing of PW-1 since 09.03.2008 till he
came back on 17/18.03.2008. He corroborated the demand of
ransom by the accused and about settlement of ransom at Rs. 40
lac. He had made arrangement of Rs. 40 lac from REI AGRO
Limited Company where PW-2 is an employee. PW-2 has stated in
his evidence that on 14.03.2008 as mistrusted by the accused
Sahadab Siddiqui he went to the place near ITC Sonar Bangla
along with a blue and black colour bag with logo "MARL BORO"
and thereafter he went to Howrah Railway Station as per further
instruction, and purchased a ticket of Midnapore local. He had
boarded on the train and threw away that bag near Santragachi
Railway Station. On 17/18.03.2008 his brother (PW-1) had
returned to his residence.
30. PW-3 Bela Buchasia, wife of PW-1, also corroborated the
incident of abduction and payment of ransom of Rs. 40 lac
arranged by her brother-in-law i.e. PW-2. She has corroborated
the fact of missing of her husband (PW-1) on 08.03.2008 till he
returned on 17/18.03.2008.
31. PW-24, Pinki Buchasia, wife of PW-2, has also corroborated
about phone call of the abductor received on 09.03.2008 whereby
abductor demanded ransom. She has also stated about payment
of ransom by her husband (PW-2.)
32. PW-4 Pradip Ray, Constable attached to C.I.D, PW-7, Naru
Ghosh, Constable attached to C.I.D, PW-10, Raju Kumar,
Constable attached to C.I.D, PW-23, Jay Roy Chowdhury, Sub-
Inspector attached to Special Operation Group, C.I.D, PW-25
Nilkamal Mandal, Assistant Sub- Inspector attached to Special
Operation Group, C.I.D, PW-26, Swapan Sarkar, Constable
attached to Special Operation Group, C.I.D and Investigating
Officer, Pallab Kumar Gangully, Sub-Inspector attached to
Special Operation Group, C.I.D, were members of raid party.
Their evidences show that on being informed by the source they
visited Dum Dum Airport and arrested accused Sahadab Siddiqui
and Khalid Khan and they were taken to Bhawani Bhawan where
accused Sahadab Siddiqui made statement leading to recovery of
money and Honda City Car.
33. Investigating Officer, PW-32, stated in his evidence that
assuming investigation of this case on 19.03.2008 he along with
aforesaid witnesses conducted raid in Dum Dum Airport to follow
up source information and arrested accused Sahadab Siddiqui
and accused Khalid Kahn. Arrest memos were prepared as it
appears from Exhibit 42 and 43 bearing signatures of the
accused duly corroborated by other witnesses to the raid.
34. Investigation Officer, PW-32, further stated that accused
Sahadab Siddiqui made statements (Exhibit- 52 & Exhibit-44)
leading to discovery of money (portion of alleged ransom) and
Honda City Car (alleged to have been used in kidnapping the
victim, PW-1) and consequently money was recovered by a seizure
list (Exhibit-44) prepared in presence of PW-4, PW-5 (independent
witness), PW-7, PW-27, PW-25, PW-23 PW-6 (independent
witness), PW-9 (independent witness) as also in presence of
accused the witness in whose presence money was recovered
corroborated the same. Besides, Honda City Car was recovered by
preparing seizure list (Exhibit-27) in presence of Debasish
Sarkar (employee of Biswakarma Garaze), Amit Singh (employee
of Biswakarma Garaze), PW-22 as well as accused Sahadab
Siddiqui.
35. Investigations Officer (PW-32) further stated in his evidence
that following a statement (Exhibit-44) of Sahadab Siddiqui he
visited Jagacha Sundarpara i.e house of Mani Sankar Sawan
where victim was alleged to have been confined and recovered
some articles viz Plastic mat, wrapper, Plastic bottle, leucoplast
etc. by a seizure list (Exhibit-20) in presence of PW-19 (owner of
the house and PW-20 (a residence of Jagachha).
36. PW-5, PW-6 and PW-9 were declared hostile by the
prosecution. But, they stated in their examination in Chief that
currency notes were recovered in their presence.
37. Mr. Ghosh and Mr. Bhattacharya harped almost on the same
string of argument as follows:-
37. 1. In the memo of Test Identification Parade (Exhibit-
38) victim, PW-1, stated about one ambassador Car by
which victim was alleged to have been abducted,
37.2. owner of the alleged Honda City Car has not been
verified,
37.3. In an earlier statement under Section 161 (Exhibit D)
Police victim stated that he was abducted from Shibpur
area on 10.03.2008 by the accused of this case.
37.4 There are contradictions among the witness regarding
demand and recovered of ransom,
37.5. The confessional statements under Section 27 of the
Evidence Act was retracted by the accused in course of
their examination under Section 313 Cr.P.C.
37.6 There are contradictions among the witness regarding
the amount of money recovered,
37.7. Investigating Officer did not make any prayer for Test
Identification Parade in accused Khalid Khan. No formal
identification is mentioned in the memo of Test
Identification parade (Exhibit-38). That apart Investigating
Officer did not take any effort for Test Identification Parade
of the alleged Car.
37.8. Though currency notes alleged to have been
recovered from a fact at Bangur Avenue, but investigating
Officer (PW- 32) deposed in his cross-examination that
bag containing currency notes was found lying at Santra
Gachhi Station.
38. In appreciating evidence we should bear in mind that
evidence is to be considered from the point of view of
trustworthiness and once the same stands satisfied, it ought to
inspire confidence in the mind of the Court to accept the
evidence. There would hardly be a witness whose evidence does
not contain some amount of exaggeration or embellishment.
Sometimes there is deliberate attempt to offer the exaggerated
evidence and sometimes the witnesses in their over anxiety to do
better from the witness box detail out an exaggerated account.
39. The evidence of identification of an accused in Court by a
witness is substantive evidence, whereas that of identification in
Test Identification parade is, though a primary evidence but not
substantive one, and the same can be used only to corroborate
identification of the accused by a witness in Court.
40. In our case, no question was put to the victim (PW-1) in
cross-examination regarding ambassador car to corroborate the
statement made before the Magistrate in course of Test
Identification Parade. Therefore, the statement being not an
substantive piece of evidence remained uncorroborated only
investigating officer (PW-32) in his cross-examination stated that
he did not enquire about any ambassador Car.
41. Admittedly, Investigating Officer did not verify about owner
of the seized Honda City Car and thereby no prejudice was
caused to the accused. Although there are lapses in the case, but
the issue has to be considered from the point of view of the
prejudice to the accused. If in any case prejudice can be said to
have been caused to the accused, the question of trial being
vitiated on the ground of lapses would not arise at all.
42. The Exhibit - D shows that the victim (PW- 1) of this case
gave a statement before police under Section 161 Cr.P.C. in
connection with other case Jagachha Police Station Case no
151/11 dated 25.03.2011 and he stated there that he was
abducted from Shibpur area on 10.03.2008 though Exhibit-E
clearly shows that he stated in his evidence before the Court that
he was abducted on 08.03.2008 from Salt Lake City. That apart,
no evidence was brought on record showing use of the statement
(Exhibit D) for contradiction as statement recorded under Section
161 of Cr.P.C. shall not be used for any purpose except to
contradict a witness in the manner prescribed in the proviso to
Section 161 (1) Cr.P.C.
43. Regarding contradiction, we are of the view that all omissions
/contradictions pointed out by the appellants' Advocate are trivial
in nature, which do not go to the root of the case. It is settled
legal proposition that while appreciating the evidence, the Court
has to take into consideration whether the
contradictions/omissions/improvements/embellishments etc.
had been of such magnitude that they materially affect the trial.
Minor contradictions, inconsistencies, omissions of improvements
on trivial matters without affecting the case of the prosecution
should not make the Court to reject the evidence in its entirety.
The Court after going through the entire evidence must form an
opinion about the credibility of the witnesses and he being the
appellant would in natural course would not be justified in
reviewing the same again without justifiable reasons.
44. The object of incorporating Section 27 in the Indian
Evidence Act, 1872 is to provide for the admission of evidence
which could not have been admitted in evidence due to specific
bar of Section 25 to 26 of the said Act. The fact will be admissible
in evidence under Section 27 of the Evidence Act where the
information comes from any accused in the Custody of the Police.
The exact information given by the accused who is in custody
which led to recovery of the articles, is to be proved. In our case
the only relevant portion of the statements leading recovery made
by the accused Sahadab Siddiqui mere admitted in evidence as
Exhibit - 44 and 52, that too while he was in police Custody.
45. Contradictions relating to recovery of amount of ransom do
not make any defame to the prosecution case while prosecution
led sufficient evidence to prove the fact of abduction of the victim
and put him in fear of death or injury on demand of ransom to
constitute an offence under Section 364A of the Indian Penal
Code. In spite of that prosecution led further evidence to prove
giving of ransom and recovery of a portion of said ransom by a
seizure list (exhibit 14) following leading statement of accused
Sahadab Siddiqui (exhibit - 44), which is admissible as
subsequent conduct under Section 8 of the Evidence Act, 1872.
46. Failure to hold Test Identification Parade does not made the
evidence of identification in Court inadmissible, rather the same
is very much ordinarily in law, but ordinarily identification of an
accused by a witness for the first time in Court should not form
the basis of conviction. The same being from its very nature
inherently of a weak character unless it is corroborated by its
previous identification in the Test Identification Parade. But, in
this case victim was alleged to have been abducted and confined
for some days. Therefore, victim had enough opportunity to know
the face of all accused in the circumstances identification of the
accused In the Court by the victim cannot be doubted even if
Test Identification Parade was not held. That apart, one of the
accused namely Sahadab Siddiqui was known to the victim prior
to the Commission of the offence. In this case, sequence of
evidence clearly reveals that victim was abducted by one cream
color Honda City Car which was recovered and seized following a
leading statement (exhibit -27) of accused Sahadab Siddiqui.
Therefore, identification of Honda City Car by the victim in Court
cannot be said to be stated to the prosecution case in absence of
any Test Identification Parade of the said Car.
47. We have already discussed that the currency notes were
recovered from the place at Bangan Avenue under a seizure list
(exhibit 14) following leading statement (exhibit 44) of accused
Sahadab Siddiqui. Therefore, an unexplained statement of
investigations Officer in cross-examination, cannot falsify the
entire evidence of seizure of currency notes under a seizure list in
presence of witnesses.
48. In Mohd. Faizan Ahmed (supra), the Hon'ble Apex Court
dealt with an incident, where a child was abducted, after a per-
conceived plan, due to enmity. The case is clearly distinguishable
and not applicable in the facts of our case. In our case, the
prosecution case is for an incident of an abduction, of a known
person and on demand of ransom. The Hon'ble Apex Court
applied the principle of criminal jurisprudence that suspicion,
however grave, cannot take the place of proof. In our case, we
have already evaluated the evidence in terms of argument
advanced.
49. In Arun Kumar Gupta's case (supra), the Hon'ble Supreme
Court, dealt with a case under Section 302 of Indian Penal Code
and during investigation, blood stained earth was not sent to the
serologist, culminating to reasonable doubt in the prosecution
case. That apart, prosecution could not adduce sufficient
evidence in proving the offence. Therefore, facts and
circumstances, of our case is totally different and naturally the
aforesaid observations of the Hon'ble Apex Court is not applicable
to our case.
50. In Laxmi Singh (supra), the Hon'ble Apex Court, came
across a case of murder of two persons and prosecution did not
come out with true version and the result was that, murder of
two persons has to go unpunished unlike the facts and
circumstances of the case in our hand.
51. In Namwar Dubey (supra), the Hon'ble Apex Court took up
the evidence of sole witness of the PW2, who made different
versions as to place of occurrence and he was also confronted
with different portions of his earlier statements, in accordance
with the Section. 145 of the Evidence Act. The principle of this
case is also not applicable to that of ours.
52. Shingara Singh (supra), held that in an appeal against
acquittal the High Court is entitled to re-appreciate the entire
evidence on record, but having done so, if it finds, that the view
taken by the trial court is a possible reasonable view of the
evidence on record, it will not substitute its opinion for that of the
trial Court.
53. Lekh Raj ( supra) held, in a case for offence under Section
376(2)(g ) / 323 of Indian Penal Code, that though the holding of
the identification proceeding are not substantive evidence, yet
they are used for corroboration purposes, for believing that the
person brought before the Court was the real person involved in
the commission of the crime. The identification parade even if
held cannot in all cases, be considered as safe, sole and
trustworthy evidence on which the conviction of the accused
could be sustained. It is a rule of prudence which is required to
be followed, in cases, where the accused is not known to the
witness or the complainant. In our case, one of the accused is
well-known to the victim and the other unknown accuseds were
identified by the victim on dock, as the victim had the
opportunity to know those unknown persons during his
confinement.
54. In Rajesh Govind Jagesha (supra) and in Ganpat Singh
(supra), the Hon'ble Apex Court observed that, if test
identification parade regarding the accused is not conducted
properly and suffered from unexplained delay, he is entitled to
the benefit of doubt. In our case, the victim was known to the
one of the accused and having opportunity to know other two
accused during his confinement, therefore, even if T.I. parade was
not held, identification of the accused on dock by the victim on
dock cannot be disbelieved.
55. In Nathu's case ( supra), it was held by the Hon'ble Apex
Court that, the confessional statement of the accused is not at all
a substantive or independent evidence, on which a conviction
could be based. In our case, the Ld. Trial Court did not return his
finding on the basis of confession of the accused.
56. Satbir Singh (supra), observed as follows :-
" 28. In deciding whether a particular confession
attracts the frown of the sec. 24 of the Indian
Evidence Act, the question has to be considered
from the point of view of the confessing accused as
to how the inducement, threat or promise
proceeding from a person from authority would
operate in his mind."
57. In the case of Dara Singh (supra), the Hon'ble Apex Court
laid down guidelines for consideration of statement under section
164 of Cr.P.C. In our case, only accused, namely Khalid Khan
made a confession before the Ld. Magistrate and subsequently he
retracted during the examination under Section 313 of Cr.P.C.
Ld. Trial Court, returned its findings on the basis of materials
available on record independent of that confession.
58. In Juwar Singh ( supra), the Hon'ble Apex Court observed
as follows :-
" 5........that DW.s.1, 2 & 3 were not subjected to
any cross-examination and therefore their evidence
should be unhesitatingly accepted. We do not agree
with the submission of Sri Mulla. Cross
examination is not the only method of discrediting a
witness. If the oral testimony of certain witnesses
is contrary to proved facts, their evidence might
well be discarded on that ground. If their testimony
is on the face of it unacceptable, Courts are not
bound to accept their testimony merely because,
there was no cross-examination. In our case, no
such occasion arose."
59. The Hon'ble Supreme Court in Malleshi (supra), held that
there cannot be any straight jacket formula that the demand for
payments has to be made to a person who ultimately pays. After
making the demand to the kidnapped or abducted person merely
because the demand could not be conveyed to some other person,
as the accused is arrested in the mean time, does not take away
the offence out of the purview of section 364(A) of the Indian
Penal Code.
60. In Akram Khan's case (supra) laid down the parameters
for attracting the offence under Section 364(A) of Indian Penal
Code.
61. In Abdul Rahaman Kuji (supra), this Hon'ble Apex Court
observed relying on the judgments of the Hon'ble Supreme
Court's as follows:-
" 86. the judgments of the Supreme Court, which
has been cited before us elucidate that the evidence
with regard a conspiracy may be direct or
circumstantial. The Court has observed that it is
generally difficult to find direct evidence given the
nature of the crime. The participants in the
conspiracy must have a common object even
though each of them may not know the role of
ascribed to the others for furtherance of the plot.
Indeed, the conspirators need not physically meet
in order to chalk out the plan. The meeting of the
minds of the conspirators to execute their ultimate
goal must be reflected from the evidence of record."
62. In Munshi Singh Gautam (supra), the Hon'ble Apex Court
laid down the principle of probative value of the test identification
parade. It has laid down that the necessity of holding an
identification parade can arise only when, the accuseds are not
previously known to the witnesses. The whole idea of a test
identification parade is that witnesses who claimed to have seen
the culprits at the time of occurrence are to identify them from
the midst of other persons without any aid or any other source.
The test is done to check upon their veracity.
63. Keeping an eye to the principles elucidated in the judgements
cited on behalf of the appellants and prosecution it appears that
the factual position found by the trial Court goes to show that
object of abduction was for ransom. This was clearly conveyed to
the victim (PW-1) who even conveyed his brother (PW-2) the
amount to be paid. Though factual position of this case is that
the demand was settled and paid, but offence within the perview
of Section 364A of Indian Penal Code stood completed
immediately after abduction of the victim (PW-1), his confinement
in isolation and a demand for ransom being made to him.
Payment of ransom is not sine qua non to constitute an offence
under Section 364A I.P.C.
64. In the aforesaid view of the matter, there is no infirmity in
the judgment impugned to warrant any interference.
65. All three appeals being dealt with by the this common
judgment, and consequently, the judgement and dismissed order
dated 12.04.2018 and 13.04.2018 passed by the Ld. Chief Judge,
City Sessions Court, Calcutta, is upheld.
66. All three appellants, if on bail, are directed to surrender
before the Trial Court to serve sentence.
67. The Lower Court record be sent to the Trial Court, i.e. the
Court of Ld. Chief Judge, City Sessions Court, Calcutta,
forthwith.
68. All pending applications stand disposed off.
69. Urgent certified photocopies of this judgment, if applied for,
be supplied to the Ld. Advocates for the parties upon compliance
of all formalities.
[BIBHAS RANJAN DE, J.]
70. I Agree.
[DEBANGSU BASAK, J.]
