Nand Kishore Turi vs The State Of Jharkhand
2021 Latest Caselaw 2211 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      (Criminal Appellate Jurisdiction)

                  Criminal Appeal (DB) No. 341 of 2017
                                   With
                  Criminal Appeal (DB) No. 245 of 2017

[Against the judgment of conviction dated 29.11.2016 and the order of sentence dated
30.11.2016 passed by the learned Additional Sessions Judge-I, Chatra in S.T. No. 45 of
2012]


In Criminal Appeal (DB) No.341 of 2017:
Nand Kishore Turi, son of Sukhi Turi, residents of village-Bundu,
PS-Keredari, District-Hazaribagh                    ... Appellant
                                   Versus
The State of Jharkhand                                               .... Respondent
                                           AND

In Criminal Appeal (DB) No. 245 of 2017:
Rauki @ Shatrughan Sao, son of late Ram Dayal Sao, resident of
village-Bachra, PS-Piparwar, District-Chatra    ... Appellant
                                    Versus

The State of Jharkhand                                               .... Respondent

                        (Heard through V.C on 23rd, 24th & 28th June, 2021)

                       PRESENT
        HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
          HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant(s)        : Mr. Arwind Kumar, Advocate
                             [in Criminal Appeal (DB) No. 341 of 2017]

                             Mr. Vijay Kumar Roy, Advocate
                             [in Criminal Appeal (DB) No. 245 of 2017]
For the State              : Mr. Manoj Kumar Mishra, APP
                             [in both cases]

                                     -------
                                 JUDGMENT

C.A.V on 28/06/2021 Pronounced on 06/07/2021 Per, Shree Chandrashekhar, J.

In presence of three persons, Rahul Kumar Pandey was abducted from his house by four unidentified abductors. On the basis of the written information of father of the victim boy who was abducted in the night of 27.05.2011, Piparwar P.S Case No.19 of 2011 was lodged on 28.05.2011 for the offence under sections 364-A and 392 of the Indian Penal Code, against unknown. Rajan 2 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

Ganjhu, Narayan Kumar Munda, Nand Kishore Turi and Rauki @ Shatrughan Sao were arrested on 22.06.2011 and they suffered disclosure statements. By an order dated 17.05.2012 a common charge under sections 364-A and 392 of the Indian Penal Code was framed against them. Rajan Ganjhu and Narayan Kumar Munda jumped the bail at the stage of their examination under section 313 of the Code of Criminal Procedure and were not apprehended by the time judgment in S.T. No. 45 of 2012 was delivered against Nand Kishore Turi and Rauki @ Satrughan Sao. In S.T. No. 45 of 2012, the appellants are convicted and sentenced to RI for five years with fine of Rs.1000/- each under section 392 of the Indian Penal Code and RI for life with fine of Rs.25000/- each under section 364-A of the Indian Penal Code with a default stipulation that they shall undergo further imprisonment of SI for three years on each count.

2. The learned Additional Sessions Judge-I, Chatra has recorded a finding that there is no material on record to infer enmity between the parties and false implication of the accused. The prosecution witnesses had sufficient time to observe the accused and there was sufficient light to identify them in the night. The learned trial Judge has further held that TIP chart which was laid in evidence and marked as exhibit-11 reflects that the victim boy identified Rajan Ganjhu who was in fatigues and Nand Kishore Turi who put sword on his head; recovery of currency notes at the instance of the accused matched with the description of ransom paid by the informant, and; minor omission by the prosecution witnesses and normal abrasions in their testimony pointed out by the defence are not sufficient to challenge their truthfulness.

3. The learned trial Judge has held as under :

"22- izLrqr okn esa vfHkys[k ij miyC/k lEiw.kZ lk{;ksa ds ifj'khyu ds i'pkr~ eSa ikrk gw¡ fd bl okn esa fyf[kr vkosnu ihfM+r jkgqy dqekj ik.Ms; ds firk ds }kjk fn;k x;k FkkA ftlesa lwpd ¼ihfM+r ds firk½ }kjk pkj vijk/kdfeZ;ksa ij dk.M ntZ djk;k x;k FkkA fopkj.k ds nkSjku vfHk;kstu lkf{k;ksa esa ls vfHk;kstu lk{kh la0 01 m'kk nsoh us vfHk;qDr jktu xa>w dks U;k;ky; esa ?kVuk dkfjr djus okys vfHk;qDr ds :i esa igpkuk gSA blds lkFk gh vfHk;kstu lk{kh la0 03 tks bl ?kVuk ds p'enhn lk{kh gSA bUgksaus Hkh vius lk{; ds iSjk&2 esa vfHk;qDr jktu xa>w] uUnfd'kksj rqjh vkSj ukjk;.k dqekj eq.Mk dks igpkuk gSA blds lkFk gh bl ?kVuk ds vU; p'enhn lk{kh ihfM+r] vfHk;kstu lk{kh la0 10 vius lk{;

esa vfHk;qDr jktu xa>w] ukjk;.k dqekj eq.Mk ,oa jkWdh mQZ 'k=q/u lko dks igpkuus dk nkok fd;k gSA ml fnu lHkh vfHk;qDr izfrfuf/kRo ij Fks ,oa U;k;ky; esa mifLFkr vfHk;qDr uUnfd'kksj rqjh dks igpkus gSA ;g Hkh lk{kh ?kVuk ds p'enhn lk{kh gSAa ftuds le{k vfHk;qDrx.k ihfM+r jkgqy dqekj ik.Ms; dks vigj.k dj ys x;s ,oa ckn esa mudks fQjkSrh dh jde izkIr gksus ij NksM+ fn;s A bu lkf{k;ksa ds lk{; ij vfo'okl fd;s tkus dk dksbZ dkj.k ugha gSA buds lk{;ksa esa y?kq fojks/kkHkkl gSA bl vk/kkj ij muds lk{;ksa ij vfo'okl 3 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

ugha fd;k tk ldrk gSA cpko i{k vius izfr ijh{k.k ds }kjk vfHk;qDrksa ls fdlh rjg dh nq'euh ,oa mUgsa >wBk Qalk;s tkus ds rF;ksa dks Hkh izekf.kr ugha fd;s gSaA ,slh fLFkfr esa vfHk;qDrksa dks >wBk Qalk;s tkus dk dksbZ dkj.k vfHkys[k ij ugha gS ,oa bl okn ds lHkh vfHk;kstu lk{kh ftUgksaus vfHk;qDrksa dks ?kVuk dkfjr djus ds :i esa igpkuk gSA mudk igpku lEHkkO; gSA D;ksafd bl ?kVuk ds eq[; lk{kh ,oa ihfM+r us vius lk{; esa lHkh vfHk;qDrksa dks Li"V :i ls igpkuk gS ,oa vU; lHkh lk{khx.k ftuds le{k vigj.k dh ? kVuk ?kVh FkhA muds }kjk Hkh vfHk;qDrksa dks igpkus tkus dk i;kZIr volj Fkk ,oa igpkuus ds fy, i;kZIr izdk'k Hkh FkkA cpko i{k ds bu rdksZa esa dksbZ cy ugha gS fd ?kVuk jkr ds le; dh Fkh ,oa dqN yksx eqag <ds gq, FksA ,slh fLFkfr esa mldk igpku laHko ugha FkkA bl vk/kkj ij vfHk;kstu lkf{k;ksa ds lk{; ij vfo'okl ugha fd;k tk ldrk gSA blds lkFk gh vfHk;kstu i{k dh vksj ls izLrqr vU; lk{khx.k tks iqfyl lk{kh gSA ftuds }kjk vfHk;qDrksa dks fxjQ~rkj fd;k x;k gSA muds lk{;ksa ds vk/kkj ij Hkh vfHk;qDrx.k dh ?kVuk esa lafyIrrk izekf.kr gksrh gS ,oa vfHk;qDrx.k ds dCts ls lwpd ls izkIr fQjkSrh dk iSlk Hkh cjken fd;k x;k gSA ftls U;k;ky; ds le{k izLrqr Hkh fd;k x;k gSA mls oLrq izn'kZ& I ls I/VI vafdr fd;k x;k gSA ftldk uEcj tIrh lwph ls feyrk gSaA vfHk;qDrksa us vius laLohd`fr c;ku esa ;g ckr Lohdkj fd;k gS fd fQjkSrh dk jde mUgsa izkIr gqvk Fkk ,oa mDr jde muds fu'kkunsgh ij muds ?kj ls cjken fd;k x;k gSA ftls vfHk;kstu lkf{k;ksa us vius lk{;ksa ls izekf.kr fd;k gSA blds lkFk gh vfHk;kstu lk{kh la 09 r:.k dqekj tks ?kVuk ds le; O;ogkj U;k;ky;] prjk esa U;kf;d n.Mkf/kdkjh ds in ij inLFkkfir FksA muds }kjk igpku ijsM djk;k x;k FkkA ihfM+r us vfHk;qDr jktu xa>w rFkk vfuy dqekj rqjh dks igpkuk Fkk ,oa lwpd vfuy dqekj ik.Ms; us Hkh jktu xa>w dk igpku fd;k FkkA ml igpku ijsM izfrosnu dks izn'kZ&11 vafdr fd;k x;k gSA blds lkFk gh izn'kZ&11 igpku ijsM pkVZ ds voyksdu ls Li'V gksrk gS fd lk{kh vfuy dqekj ik.Ms; us jktu xa>w dks fprdcjk onhZ igus gq, igpkuk Fkk rFkk ihfM+r jkgqy ik.Ms; us jktu xa>w dk igpku canwd j[ks gq, ,oa uUn fd'kksj rqjh dks ryokj lVkdj ckbZd ij ys tkus ds :i esa igpkuk gSA vfHk;kstu lkf{k;ksa ds lk{; dh lEiqf"V vfHk;qDrx.k ds laLohd`fr c;ku rFkk muds ?kj ls muds fu'kkunsgh ij cjken :i;s ls gksrk gSA izLrqr okn esa vfHk;qDrx.k ds dCts ls tIr onhZ dks U;k;ky; ds le{k izLrqr ugha fd;k] ijUrq ek= mlds vk/kkj ij vfHk;qDrx.k dh ?kVuk esa lafyIrrk ls budkj ugha fd;k tk ldrk gS ,oa ek= mlds vk/kkj ij vfHk;kstu lkf{k;ksa ds lk{; dks lafnX/k ugha ekuk tk ldrk gSA bl ?kVuk esa vfHkys[k ij vfHk;qDr jkWdh mQZ 'k=q/u lko ,oa uUnfd'kksj rqjh ds }kjk ihfMr jkgqy ik.Ms; dk vigj.k djus ,oa mudk eksckbZy vkfn ywVdj ys tkus ds laca/k esa i;kZIr lk{; vfHkys[k ij miyC/k gSA vfHk;qDrx.k }kjk ihfM+r dk vigj.k fQjkSrh ds fy, fd;s tkus dh ckr vfHk;kstu ds lk{;ksa ls izekf.kr gksrk gSA D;ksafd vfHkys[k ij bl ckr dk i;kZIr lk{; miyC/k gS fd vfHk;qDrx.k }kjk ihfM+r dk vigj.k djus ds ckn mlls fQjkSrh ds :i esa :i;k ysdj NksM+k x;k gSA bl vk/kkj ij ;g izekf.kr gksrk gS fd vfHk;qDrx.k }kjk ihfM+r jkgqy ik.Ms; dk fQjkSrh ds fy, vigj.k fd;k x;k ,oa mudk eksckbZy vkfn ywV fy;k x;kA"

English Translation:

"22. On perusal of the entire evidences available on the record of the present case, I find that the written report in this case was given by the father of the victim Rahul Kumar Pandey. The informant (the father of the victim) had lodged a case against the four criminals. During trial, out of the prosecution witnesses, P.W. No.1 Usha Devi has identified the accused Rajan Ganjhu in the court as the accused who committed the crime. Besides this, P.W. No.3, who is an eye-witness of this incident, has also identified the accused Rajan Ganjhu, Nand Kishore Turi and Narayan Kumar Munda in para 2 of his evidence. In addition to this, the other eye-witnesses of this incident, the victim, P.W. No.10 claimed to have, in his evidence, identified the accused Rajan Ganjhu, Narayan Kumar Munda and Rauki @ Shatrughan Sao. On that day, he has identified the accused Nand Kishore Turi who was present in the court whereas all other accused persons were on representation. All these witnesses are eye- witnesses of the incident, in front of whom, the accused persons abducted the victim Rahul Kumar Pandey and later released him after receiving the ransom money. There is no reason to disbelieve the evidences of these witnesses. There is minor contradiction in their evidences. On this basis, their evidences cannot be disbelieved. The defence through their cross-examination has also not proved the fact of enmity and their false implication. In such circumstance, no reason of false implication of the accused persons is available on record and all the prosecution witnesses of this case have identified the persons 4 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

who were involved in the crime. Their identity is established because the main witness and victim of this incident in his evidence have identified all the accused clearly and all the other witnesses in whose presence the incident of abduction took place had sufficient time to identify the accused and there was also sufficient light to identify them. There is no force in the contentions of the defence that it was night time and some persons had covered their face and so in such circumstance it was not possible to identify them. On this ground, the evidences of prosecution witnesses could not be disbelieved. Also, other witnesses produced on behalf of the Prosecution are police- witness who have arrested the accused persons. Even on the basis of their evidences, the involvement of the accused persons in the occurrence is proved and also the ransom amount received from the informant has been recovered from the possession of the accused persons which has also been produced before the court, which are marked as Material Exhibit I to I/VI and their number tallied with the seizure list. The accused persons, in their confessional statement, have admitted that they received ransom amount and the said amount was recovered from their house at their instances which are proved by the prosecution witnesses in their evidences. Along with this, P.W. No.9, Tarun Kumar, who was posted as Judicial Magistrate in Civil Court, Chatra at the time of occurrence had conducted Identification Parade. The victim had identified accused Rajan Ganjhu and Anil Kumar Turi and the informant Anil Kumar Pandey had also identified Rajan Ganjhu. The said Identification Parade Chart has been marked as Ext.-11. Also, on perusal of Ext.-11, the Identification Parade Chart, it appears that the witness Anil Kumar Pandey had identified Rajan Ganjhu who was wearing fatigues and the victim Rahul Pandey has identified Rajan Ganjhu who was carrying the gun and Nand Kishore Turi as the person who made him to ride on the bike on pointing of sword. The evidence of prosecution witnesses is confirmed with the confessional statements of the accused persons and the Rupees recovered from their house at their instances. In the instant case, the uniform seized from the possession of accused persons has not been produced before the court, but only that very basis, the involvement of the accused persons in the occurrence could not be denied and only on that ground the evidence of prosecution witnesses could not be held doubtful. In this case sufficient evidence is available on record with respect to abduction of the victim Rahul Pandey and loot etc. of his mobile by the accused Rauki @ Shatrughan Sao and Nand Kishore Turi. The abduction of the victim by the accused persons for ransom is proved from the evidences of the prosecution. Because sufficient evidence of this matter is available on record that the accused persons, after abduction of the victim, released him after receiving ransom, it is proved that the accused persons abducted the victim Rahul Pandey for ransom and looted his mobile etc."

4. The main challenge to the judgment of the Sessions Court is on the ground that the evidence on identification of the appellants by the victim boy in the Court about four years after the occurrence is worthless and it would set a dangerous precedence if the appellants are convicted on the basis of such evidence.

5. The evidence on identification of an accused in the Court by the witness must be considered above board if his testimony does not suffer from inherent improbability or inconsistency, and if the witness is victim himself his evidence alone is sufficient to 5 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

record conviction of the accused. In "Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi)" 1 the Hon'ble Supreme Court has concluded that the Court may appreciate dock identification as being above board and more than conclusive even where there is no previous Test Identification.

6. Besides the victim boy the prosecution has projected three more witnesses as eyewitness to the occurrence. PW1 and PW7 are parents of the victim boy and PW3 is a close friend of PW7

- he was residing in the house of PW7 since long. These witnesses are no doubt intimately related to the victim boy but no plea was put forth by the appellants that due to past enmity or any other reason they were falsely implicated by them. We do not find any trace of a suggestion by the defence in the cross-examination of the prosecution witnesses that their evidence was tainted. On numerous occasions the Hon'ble Supreme Court has indicated that relationship is not a ground to discard evidence of a witness specially for the reason that relative of a victim would not falsely implicate an innocent person, and in a case of the nature we are dealing with there is no reason to disbelieve the witnesses who are intimately related to the victim boy.

7. In "Mano Dutt and another vs. State of U.P" 2 the Hon'ble Supreme Court has observed as under :

"24...... Firstly, there is no bar in law in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping into such a quarrel and trying to defuse the crisis. Besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party."

8. Rajan Ganjhu and Nand Kishore Turi were put on Test Identification on 04.08.2011 and both were identified by the victim boy whereas his father could identify Rajan Ganjhu only. PW10, the victim boy has deposed in the Court that he identified two accused

1. (2010) 6 SCC 1

2. (2012) 4 SCC 79 6 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

in the Test Identification, one was in fatigues and the other one was of short height. On the day of his examination in the Court he has identified the accused who was shorter in height - that person was Nand Kishore Turi. PW10 has claimed in the Court that he can identify the other accused also who were not present in the dock on that day. The learned Sessions Judge has recorded a remark in the deposition of PW10 that the learned counsels who were representing Rajan Ganjhu, Narayan Kumar Munda and Rauki @ Satrughan Sao did not object to claim of PW10 about their identification. PW1 who is mother of the victim boy has deposed in the Court that in the night of 27.05.2011, at about 9:20 AM, three persons entered her house and one stayed at the main gate. The accused in fatigues was carrying a bhujali, the fair-complexioned accused was armed with gun and the wheatish-complexioned accused was holding a sword. The accused threatened the inmates of the house with dire consequence if information was given to the administration. Since the accused in fatigues had not covered his face she could identify him while according to her the other two had covered their face - she has identified Rajan Ganjhu in the Court. PW3 who is a close friend of the informant was there when in the night of 27.05.2011 four persons came to the house of the informant, three entered the house and one remained at the main gate. He has stated that two accused had covered their face while the face of the accused in fatigues who was carrying a bhujali was not covered. He has identified Rajan Ganjhu as the accused who was in fatigues. He has further stated that the fair-complexioned accused was carrying a gun and the third one, wheatish-complexioned, had a sword in his hand. He has identified Nand Kishore Turi and Narayan Kumar Munda in the Court. According to PW3, three accused entered the house of PW7 and at that time Nand Kishore Turi and Narayan Kumar Munda had their faces covered. PW7, father of the victim boy has also narrated the incident in the night of 27.05.2011 in a similar manner and stated about complicity of four persons in the occurrence. He has stated that the accused put sword on the neck of his son and threatened to kill him if information was given to the police. The accused snatched his mobile phone and took away the 7 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

motorcycle and after about 2-3 hours called him from his mobile phone. They asked his son to talk to him who informed him that the accused had brought him in the forest. When he asked the accused to release his son the abductor told him that he would be back home next day morning. But when his son did not return home he gave information to the police the next day and submitted a written complaint, which was written by PW3. He has identified his written complaint dated 28.05.2011 which was marked as exhibit-10. He has further stated that the accused called him from his mobile phone (which was snatched by the abductors) and asked him whether he had sent information to the police. The accused asked him to pay ransom of Rupees Twenty Lakhs else his son would be killed. They reduced the ransom amount to Rupees Ten Lakhs and on 31st May asked him to arrange Rupees Six Lakhs in currency note of Rupees Five Hundred. In the afternoon of 31 st May, at around 04:00 PM, the abductor asked him to arrange a Bolero car and deliver ransom at a designated place, which he did. The same night his son came back home with the motorcycle which the accused had taken away.

9. However, on the point of identification PW7 has stated that the accused had covered their face. He had identified one person in the Test Identification Parade but in the Court he did not identify any accused. At this juncture, on the request of the prosecution, PW7 was declared hostile. In the cross-examination by the prosecution, PW7 has however stated that he had identified some currency notes of Rupees Five Hundred and Rupees One Thousand which were recovered from the accused as he had noted number of the currency notes which were paid in ransom. Though he has declined to own his statement made before the police during the investigation, PW7 has affirmed during his cross-examination by the prosecution that he delivered the ransom amount in the manner indicated by the abductors. A suggestion was given by the prosecution that out of fear he has refused to identify the accused which of course he declined.

10. As a legal proposition the evidence of a prosecution witness cannot be rejected wholesale merely on the ground that at 8 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

one point the witness was declared hostile and cross-examined by the prosecution. In "Bhajju vs. State of M.P"3 the Hon'ble Supreme Court has held that it is admissible to use the examination-in-chief as well as cross-examination of the hostile witness in so far as it supports the case of the prosecution.

11. The presence of PW1 and PW7 in their house in the fateful night was quite natural and, in fact, there was no serious challenge by the defence on this point. In a lengthy cross-examination, PW3 has also remained firm to his stand that he was there in the house of PW7, his friend, when four unknown persons entered his house and abducted his son. Though the informant was declared hostile on the point of identification of the abductors he has fully supported the prosecution on other material aspects of the case. The kind of evidence these witnesses have tendered in the Court leaves not much for the Court to harbour any doubt on complicity of the abductors. They were natural and competent witnesses who have told the Court what had happened in the night of 27.05.2011.

12. The testimony of the victim boy does not suffer from any inherent improbability. His evidence is cogent, clear and convincing and admits no doubt on complicity of the appellants in his abduction and demand for ransom. The other prosecution witnesses have also tendered useful evidences which corroborate the prosecution story on complicity of the appellants in the crime. PW2 who is grandfather of the boy was informed by his son about abduction of Rahul Kumar Pandey. Next day when he came to the house of his son he was informed that the abductors had taken away mobile phone and motorcycle, they were carrying gun and sword and they abducted his grand child for ransom. PW4 was posted as Assistant Sub-Inspector of Police at Piparwar PS. He was part of the raiding team which comprised Mohan Pandey, Sudesh Minz, Parash Nath Shukla and others. He has deposed in the Court that in his presence Rajan Ganjhu, Narayan Kumar Munda, Rauki @ Shatrughan Sao and Nand Kishore Turi were arrested from their house in the intervening night of 22/23.06.2011 and they suffered confessional statement. He has further stated that on pointing of

3. (2012) 4 SCC 327 9 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

the accused currency notes of Rs. 500/- were recovered from house of the accused. He has identified Rajan Ganjhu, Narayan Kumar Munda and Rauki @ Shatrughan Sao in the Court but failed to identify Nand Kishore Turi and at this point he was declared hostile and cross-examined by the prosecution. Interestingly, in the cross-examination by the prosecution he admits that all four accused who were arrested in his presence were present in the Court. He further admitted that the accused whose name is Nand Kishore Turi was also present in the Court and he was among those four accused who were arrested by the raiding party. He has further admitted that after the accused were arrested their photographs were published in the daily newspapers Dainik Jagran, Hindustan, Prabhat Khabar etc. In a lengthy cross-examination nothing material except that malkhana register and seized articles were not produced in the Court could be elicited by the defence. PW5 was also a member of the raiding team has affirmed in the Court that the accused were arrested from their house, they suffered disclosure statements and on their pointing currency notes of Rs. 500/- were recovered from their house. His evidence is important for another reason that he has deposed in the Court that Mohan Pandey prepared seizure memo and copies thereof were supplied to the accused. PW5 has further stated that the confessional statement of Rajan Ganjhu bears his signature.

13. Mohan Pandey was the investigating officer and he has been examined in the Court as PW6. He has deposed in the Court that the house of Rauki @ Shatrughan Sao is about 20-25 yards away from the house of the informant. He has stated that on the pointing of Rajan Ganjhu Rs. 48,500/- kept in a box which was concealed in his house was recovered. A sealed packet which was opened in the Court was found containing 97 currency notes of Rs. 500/-. He has stated that out of those currency notes number of seven notes matched with the seizure list. From the house of Nand Kishore Turi Rs. 40,000/- concealed beneath the earth was recovered on his pointing. Similarly, recoveries of currency notes at the instance of other accused were also made by him and he obtained call detail records of the sim card seized from Rajan 10 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

Ganjhu. In his cross-examination, he has admitted that he did not

(i) prepare site map, or (ii) took fingerprints of the accused, or

(iii) sent the currency notes for forensic examination, or (iv) took statement of family members of the accused at the time of seizure, or (v) took statement of neighbors of the accused. PW8 is the person who was Officer In-charge of Piparwar PS on 27.05.2011. He has identify the formal FIR. PW9 is the Magistrate who conducted the Test Identification Parade. He has deposed in the Court that the victim boy identified Rajan Ganjhu and Nand Kishore Turi. He has proved TIP chart which was marked as exhibit-11.

14. A plea was raised on behalf of Nand Kishore Turi that Test Identification 42 days after his arrest would lose its sting, more particularly because photographs of the accused were published the next day after their arrest on 22.06.2011. The learned counsel has relied on a judgment in "Soni vs. State of U.P"4.

15. The judgment in "Soni"4 is quite distinguishable. Except the evidence of Test Identification there was no other evidence against the accused. With this factual aspect in mind, the Hon'ble Supreme Court has observed that the delay in holding Test Identification Parade throws doubt on its genuineness.

16. In "Soni"4 the Hon'ble Supreme Court has held as under:

"2. After hearing counsel on either side we are satisfied that the conviction of the appellant for the offence of dacoity is difficult to sustain. The conviction rests purely upon his identification by five witnesses, Smt Koori, Pritam Singh, Kewal, Chaitoo and Sinru, but it cannot be forgotten that the identification parade itself was held after a lapse of 42 days from the date of the arrest of the appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the appellant. If this evidence cannot be relied upon there is no other evidence which can sustain the conviction of the appellant. We therefore allow the appeal and acquit the appellant."

17. Regarding publication of photograph in the newspapers, we would say that the witnesses have given description of physical features of the accused which was sufficient to identify Nand Kishore Turi and, therefore, publication of his photograph in the newspapers would not affect credibility of his identification by PW10. In "Raja vs. State by inspector of police"5 a similar plea raised

4. (1982) 3 SCC 368

5. AIR 2020 SC 254 11 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

on behalf of the accused that their photographs had appeared in the newspaper before dock identification by the witnesses was summarily rejected by the Hon'ble Supreme Court, observing that what is important is identification in the Court and if such identification is otherwise found truthful and reliable such evidence can be relied upon by the Court.

18. Mr. Vijay Kumar Roy, the learned counsel for the appellant Rauki @ Shatrughan Sao has contended that this appellant was not known to the witnesses but he was not put on Test Identification Parade to establish his identity as one of the abductors.

19. Under section 9 of the Indian Evidence Act the facts establishing identity of an accused are relevant but as held in "Malkansingh and others vs. State of M.P."6 the investigating officer is not under a statutory duty to hold Test Identification Parade. In "Ronny @ Ronald James Alwaris and others vs. State of Maharashtra"7 the Hon'ble Supreme Court has observed that purpose of a Test Identification Parade is to test the memory and capacity of a witness to recapitulate what he has seen earlier and to strengthen trustworthiness of the evidence on identification of an accused in the Court. The necessity of Test Identification to corroborate identification of an unknown accused in the Court is a rule of prudence and not an absolute rule, and as held in "Hari Nath vs. State of U.P"8 absence of corroboration by test identification may not assume materiality if either the witness had known the accused earlier or where there are reasons for gaining an enduring impression of the identity of the accused. By now it is well settled in law that whether the identification of an accused for the first time in the Court in absence of any Test Identification can be made the basis of conviction would depend upon the facts and circumstances of the case and no strait-jacket formula can be prescribed in this regard.

20. In "Simon and others vs. State of Karnataka" 9 the star witness for the prosecution who had shown the accused to other

6. (2003) 5 SCC 746

7. (1998) 3 SCC 625

8. (1988) 1 SCC 14

9. (2004) 2 SCC 694 12 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

witnesses himself wrongly identified all the accused except Simon in the Court and on that basis a plea was raised that identification of Simon by such a witness who had failed to identify the other accused must be excluded from consideration being inherently unreliable piece of evidence.

21. In "Simon"9 the Hon'ble Supreme Court has held as under:

"9. We are unable to accept the contention that wrong identification by one witness by itself would be fatal to the case of the prosecution. A case is required to be decided on the examination of entire evidence. Mere wrong identification by one of the eyewitness by itself cannot be fatal to the case of the prosecution. There can be a variety of reasons for wrong identification. The witness may be won over. There may be lose of memory or any other reason.

........................................................................................................ ........................................................................................................

14. ....... The legal position on the aspect of identification is well settled. Under Section 9 of the Indian Evidence Act, 1872, the identity of the accused persons is a relevant fact. We have no difficulty in accepting the contention that evidence of mere identification of an accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification is to test and strengthen the trustworthiness of that evidence. Courts generally look for corroboration of the sole testimony of the witnesses in court so as to fix the identity of the accused who are strangers to them in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. It has also to be borne in mind that the aspect of identification parade belongs to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. Mere failure to hold a test identification parade would not make inadmissible the evidence of identification in court. What weight is to be attached to such identification is a matter for the courts of fact to examine. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration (see Malkhansingh v. State of M.P.) ....."

22. The inmates of the house did not identify Rauki @ Shatrughan Sao in the Court and there is a good reason for that. The claim of the victim boy that he can identify Rauki and other accused was not challenged by the defence and we see no reason to discard of his testimony. He was released after four days on payment of ransom and during this period he had sufficient opportunity to see and observe the abductors. Rauki @ Shatrughan Sao was his neighbor and even assuming that his face was covered 13 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

the victim boy had sufficient time to observe physical features of the abductors. The victim of abduction for ransom would never forget those frightful moments in his life and picture of the abductors would stick in mind indelibly. The learned APP has stated that Rauki @ Satrughan Sao was neighbor of the informant and by the time the Test Identification Parade was conducted his complicity in the crime had surfaced and therefore he was not put on Test Identification. In "Ponnusamy vs. State of T.N"10 the accused were known to the witnesses. They did not mention name of the accused and on that basis a plea was raised that there was no identification of the accused by the witnesses. The Hon'ble Supreme Court has held that where identity of the accused was not an issue raised by the defence the evidence of the witnesses who did not refer to him by name cannot be discarded.

23. The evidence laid by the prosecution through PW1, PW3 and PW7 in so far as complicity of four accused in the crime is concerned is of definite character and the plea urged on behalf of the appellants that the victim boy himself engineered his abduction to extract money from his parents is not acceptable. The identity of Rauki @ Satrughan Sao who is a neighbor of the informant was never in doubt. He was standing at the main gate outside the house and therefore nothing much turns on failure of PW1, PW3 and PW7 to identify him in the Court. The victim boy has claimed that he can identify the abductors who were not present in the dock on the day he tendered his evidence and by not raising any objection to such claim of the victim boy the defence must accept statement of the victim boy.

24. Recovery of articles from the house of the accused at pointing of the accused is a highly incriminating evidence. We find that notwithstanding non-examination of Dhaneswar Turi, Dukhi Mahto, Jagmohan Dubey and Hansraj Dubey, who were the independent seizure witnesses, the prosecution has proved seizure of currency notes, mobile phones, sim card and one fatigues set from a concealed place. All four accused were apprehended on 22.06.2011 and the aforesaid incriminating articles and looted currency notes were seized the same day. The seizure memos were

10. (2012) 11 SCC 355 14 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

signed by both the appellants and the investigating officer has informed the Court that he supplied a copy of the seizure memo to the accused.

25. The Indian Evidence Act, 1872 excludes confession obtained by threat or promise (section 24) and, confession to a police officer is inadmissible against the person accused of any offence (sections 25 and 26). Section 27 which has been carved out as an exception to sections 25 and 26 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

26. In "State of Maharashtra vs. Dammu"11 the Hon'ble Supreme Court has explained the law on the subject as under;

"35. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."

27. No doubt the confessional statements of the appellants cannot be used against them for proving the charge of abduction for ransom of Rahul Kumar Pandey but a part of their statement which does not implicate them directly would not be hit by section 25 of the Evidence Act and can be looked into to unearth the truth [refer: "Sandeep vs. State of U.P"12]. In his evidence the investigating officer has clearly stated that at the pointing of the accused incriminating materials were recovered from their house. A gist of the inculpatory statement made by the accused in their confessional statements

11. (2000) 6 SCC 269

12. (2012) 6 SCC 107 15 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

was narrated by the investigating officer in his testimony. All along he was present with the accused at the time of the recovery when they led the police to the place in their house where they had concealed the looted currency notes. The non-examination of the independent seizure witnesses can be urged as a ground to doubt seizure, specially seizure of currency notes which can be said to be easily planted. But, in our opinion, the evidence of the investigating officer and failure of the accused to challenge seizure in their presence at their pointing sufficiently prove that they had exclusive knowledge of the place where they had concealed the currency notes. In "R. vs. McCay"13 the accused was identified by the witness in the presence of the investigating officer who took note of the said fact. The witness however could not identify the accused in Court due to lapse of time and therefore testimony of the investigating officer was relied upon to prove the said identification. The testimony of the investigating officer was upheld as admissible on the ground that the act of the investigating officer was contemporaneous with the act of identification by the witness.

28. A specific charge under section 364-A of the Indian Penal Code was framed against all four accused. The order framing charge specifically records that the accused kept Rahul Kumar Pandey @ Sonu in detention and threatened to cause death or hurt to compel to pay ransom. Section 364-A of the Indian Penal Code provides a deterrent punishment even in a case where the kidnapping was not followed by death of the victim. For committing robbery of the motorcycle between sunset and sunrise they have faced the charge under section 392 of the Indian Penal Code.

29. The essential ingredients for constituting an offence under section 364-A of the Indian Penal Code that: (i) the accused kidnaps or abducts and keeps the victim in detention (ii) threatens to cause death or hurt or apprehension of death or hurt or actually causes death or hurt and (iii) to compel to pay ransom, are established by the prosecution. In "Shaik Ahmed vs. State of Telangana"14 the Hon'ble Supreme Court has held that before an accused is convicted under section 364-A of the Indian Penal Code

13. (1990) 1 WLR 645 : (1991) 1 All ER 232 (CA)

14. 2021 SCC Online SC 436 16 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

the prosecution must prove that the abductor threatened to cause death or hurt to such person, or by his conduct gave rise to a reasonable apprehension that such person may be put to death or hurt. The appellants were carrying deadly weapons and they threatened to kill the victim boy. The witnesses have deposed in the Court that they were frightened and the accused threatened with dire consequences if information was given to the police. Rauki @ Shatrughan Sao was the person guarding at the gate and he was the one who was keeping a constant watch over the police activity after the crime was reported to the police by father of the victim. In a completed act of kidnapping for ransom the abductors may play their assigned role and it is not necessary that all must remain present throughout the episode till ransom is paid.

30. From the records of S.T. No. 45 of 2012, we find that the material witnesses for the prosecution have tendered clear, cogent and consistent evidence on complicity of the appellants in abduction of Rahul Kumar Pandey for ransom. There is no trace of animosity with the appellants in the suggestions by the defence during the cross-examination of the prosecution witnesses and there is not even a reference of any reason for false implication of the appellants. The mother, father and a friend of the father of the victim boy have corroborated his evidence - tendered by him as PW10 in the Court. There is no cross-examination of the witnesses on material aspects of the case and presence of PW1, PW3 and PW7 at the time of abduction of the victim boy, PW10, is well proved. Still, the appellants have failed to explain recovery of huge amount of money from their house. The seized notes were produced in the Court and it is unbelievable that the police would plant such huge amount of money. There are as many as four police witnesses who have proved making of confessional statement by the accused on the night of their arrest and seizure from their house on their pointing. It is unbelievable that such large number of police personnel would come to the Court to falsely depose against the appellants, and it has not been brought out in the evidence of the prosecution witnesses that the police had animus with the appellants. Still, nothing is forthcoming from the appellants. Their 17 Criminal Appeal (DB) No. 341 of 2017 With Criminal Appeal (DB) No. 245 of 2017

silence during the examination under section 313 of the Code of Criminal Procedure has proved fatal for them, given the facts of this case.

31. In "Phula Singh vs. State of H.P."15 the Ho'ble Supreme Court has held as under :

"11. The accused has a duty to furnish an explanation in his statement under Section 313 CrPC regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 CrPC is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law. (Vide Ramnareshv. State of Chhattisgarh, MunishMubar v. State of Haryana and Raj Kumar Singh v. State of Rajasthan.)."

32. In view of the aforesaid discussions, we find no merit in these appeals and, accordingly, Criminal Appeal (DB) No. 341 of 2017 and Criminal Appeal (DB) No. 245 of 2017 are dismissed.

33. The learned APP informed the Court that both the appellants are in custody.

34. A copy of the judgment shall be sent to the concerned Jail Superintendent, and the Court concerned for necessary action.

35. Let the lower Court records be sent to the Court concerned forthwith.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.)

(Ratnaker Bhengra, J.)

Jharkhand High Court, Ranchi Dated : 06.07.2021 Tanuj A.F.R

15. (2014) 4 SCC 9