Jharkhand High Court
Santosh Paswan Son Of Ramdin Paswan vs The State Of Jharkhand on 12 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 889 of 2016
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(Against the judgment of conviction dated 24.06.2016 and order of
sentence dated 27.06.2016, passed by Additional Sessions Judge-IV,
Bokaro, in Sessions Trial No. 393 of 2010)
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Santosh Paswan son of Ramdin Paswan, resident of Sector-II
B, Qr. No. 2-334, P.O & P.S.-B.S. City, District-Bokaro.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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with
Cr. Appeal (DB) No. 928 of 2016
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Nitish Vatsh @ Nitin Vatsh, son of Late Sanjay Vatsh,
resident of Quarter No. 3-014, Sector-II/A, P.O + P.S.-B.S.
City, Distt. -Bokaro. ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
with
Cr. Appeal (DB) No. 1051 of 2016
----
Santosh Kumar Singh @ Santosh Singh, son of Radha
Kishore Singh, resident of Sector-II/A, Qr. No. 2-135, P.O.
and P.S.- Bokaro Steel City, District Bokaro (Jharkhand).
... Appellant
Versus
The State of Jharkhand ... ... Respondent
----
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Rajiv N. Prasad, Advocate
Mr. Amrendra Kumar, Advocate
[Cr. Appeal (DB) No. 889 of 2016]
Mr. Mahesh Tewari, Advocate
[Cr. Appeal (DB) No. 928 of 2016]
Mr. Rakesh Kumar, Advocate
[Cr. Appeal (DB) No. 1051 of 2016]
For the Respondent : Mrs. Priya Shrestha, Spl PP [In all cases]
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C.A.V. on 22/01/2024 Pronounced on 12/02/2024
Per Sujit Narayan Prasad, J.:
1. Since all the appeals arise out of the common judgment
of conviction and order of sentence, as such they are taken
up together and are being disposed of by this common order.
2. These appeals have been filed under Section 374 (2) of
the Code of Criminal Procedure against the judgment of
conviction dated 24.06.2016 and order of sentence dated
27.06.2016, passed by learned Additional Sessions Judge-IV,
Bokaro in Sessions Trial No. 393 of 2010, by which the
appellants were found guilty of the offence punishable under
Section 364A read with Section 34 of the Indian Penal code
and were convicted for the offence punishable under Section
364A read with Section 34 of the Indian Penal Code and
sentenced to undergo imprisonment for life and fine of Rs.
5000/- for the offence under Section 364A and in default of
payment of fine directed to undergo simple imprisonment for
one year.
3. This Court, before proceeding to examine the legality
and propriety of the judgment of conviction and order of
sentence, deems it fit and proper to refer the background of
institution of prosecution case, as per written report of
informant, which reads as under:
4. On 21.05.2010, Subham Choudhary @ Rahul aged
about 11 years went to attend tuition at Street 6 of Sector-
II/C, Bokaro, who was to return at 10.30 a.m. after tuition
but he did not return. Then his father, the informant of the
case, namely, Rajesh Prasad submitted a written report to the
Officer-in-charge, B.S. City Police Station stating that
Santosh Kumar Singh, Son of Radha Kishore Singh resident
of Qr. No. 2-134, Sector -II/A has kidnapped his son. The
informant has made the allegation that said Santosh Kumar
Singh was earlier his neighbor who is an anti-social element
and at about 2.30 pm he received a phone call on his mobile
number from the Mobile No. 9771168356 through which the
caller said that his son, Rahul, was in his custody.
Thereafter, at 3.00 pm they asked to arrange Rs. 8 lakhs till 5
am of the next day and threatened that if the information is
given to the police party, they shall lose Rahul Kumar. The
informant believing that Santosh Kumar Singh and his
friends have kidnapped his son for ransom submitted a
written report, which was registered as B.S. City P.S. Case
No. 182 of 2010 under Sections 364A/34 of the Indian Penal
Code against Santosh Kumar Singh and his unknown
friends.
5. After investigation, the police submitted charge-sheet
against Santosh Kumar Singh (appellant in Cr. Appeal(DB)-
1051 of 2016, Om Nath Dixit @ Sakun Dixit, Santosh
Paswan (appellant in Cr. Appeal (DB) 889 of 2016) , Tamana
@ Tanu under Section 364A/34 of the Indian Penal Code,
upon which, the learned Chief Judicial Magistrate took
cognizance of the offence against the accused persons and
committed the case to the Court of Sessions on 31.08.2010
giving rise to Sessions Trial No. 393 of 2010 and again
committed the case of appellant Nitish Vatsh (appellant in Cr.
Appeal (DB) 928 of 2016) separately on 7th December, 2010
giving rise to Sessions Trial No. 465 of 2010. However, later
on both the trial amalgamated and all the accused persons of
both the cases were tried together.
6. After appearance of accused persons, the charge under
Section 364A/34 IPC was framed against the accused
persons, namely, Santosh Kumar Singh, Om Nath Dixit @
Sakun Dixit, Tamana @ Tanu, Santosh Paswan and Nitish
Vatsh and read over and explained to them in Hindi to which
they pleaded not guilty and claimed to be tried.
7. During course of trial, accused Tamana @ Tanu died, as
such proceeding of trial was dropped against her vide order
dated 18.05.2013 and rest accused persons faced the trial.
8. On the date fixed for judgment accused Om Nath Dixit
@ Sakun Dixit was absent, therefore, his case was separated
from the case of present accused persons [appellants] on
24.06.2016.
9. The prosecution, in order to establish the charge, in
course of trial, has examined altogether 15 witnesses,
namely, P.W.1-Anuragi Prity Kujur @ Anu Kujur, P.W. 2
Anwar Ahmed, P.W. 3-Anil Kumar Gupta, P.W.4-Jyoti Devi,
P.W. 5-Abhishek Choudhary, P.W. 6-Balendra Kumar, P.W.
7-Sukhwant Singh, P.W. 8-Manoj Kumar Sharma, P.W. 9-
Shubham Choudhary @ Rahul Kumar, P.W. 10-Dinesh
Kumar Gupta, P.W. 11-Rajesh Prasad, P.W. 12-Baleshwar
Sahu, P.W. 13-Manish Kumar, P.W. 14-Srish Dutta Tripathi
and P.W. 15-Asif Ekbal.
10. The trial Court, after recording the evidence of
witnesses, examination-in-chief and cross-examination,
recorded the statement of the accused persons, and found
the charges levelled against the appellants proved beyond all
reasonable doubts. Accordingly, the appellants had been
found guilty and convicted for the offence punishable under
Sections 364A read with Section 34 of the Indian Penal Code
and sentenced to undergo life imprisonment for the said
offence, which is subject matter of instant appeal.
11. Judgment impugned has been assailed individually by
all the three appellants, who have filed separate appeals and
has taken separate grounds for declaring the judgment of
conviction and order of sentence to be bad in the eyes of law.
12. Grounds taken by Mr. Rajiv N. Prasad, learned counsel
being assisted by Mr. Amrendra Kumar, learned counsel for
the appellant in Cr. Appeal (DB) No. 889 of 2016 [Santosh
Paswan] are as under:
I. It has been argued on behalf of accused,
Santosh Paswan, that he was neither named in the
FIR nor anything incriminating article was
recovered from his possession. Further, he was
also not arrested with accused persons from the
place where the kidnapped boy was kept and his
mobile phone was also not used in committing the
offence of demanding the ransom.
II. It has been submitted that there is no specific
attributability having been said by the witnesses in
course of trial against the present appellant.
III. The kidnapped boy i.e. victim for the first
time in his examination-in-chief has stated that in
the car by which he was kidnapped two persons
also rode in the car whose names are Santosh
Paswan and Sakun Dixit but they went only up-to
Maithan but the victim boy during his statement
recorded under Section 164 Cr.P.C. did not take
the name of the present appellant. Further the
victim in the cross-examination has deposed that
he identified the accused, Santosh Paswan on the
basis of identification of police at police station and
later on he identified the appellant/accused in the
Jail on 11.06.2010 and this statement itself erodes
the credibility of the prosecution's case.
IV. The Investigating Officer has also stated that
during cross-examination neither Rahul @
Subham Choudhary nor his father named the
appellant as accused in their statement before the
police.
V. In the case at hand, the appellant's conviction
is solely based upon the fact that the appellant of
the instant appeal has been identified in the Test
Identification Parade (TIP) but ground has been
taken by learned counsel for the appellant by
referring to paragraph nos. 31 of the testimony of
P.W. 9, the victim that he had identified the
appellant after being instructed by the concerned
police Inspector as such the prosecution has not
proved the alleged offence against the present
appellant beyond reasonable doubt.
VI. The contention therefore has been made that
the sole evidence for conviction is based upon the
TIP which was held on 11.06.2010 but as been
said in paragraph 31 of the testimony of P.W. 9,
the P.W. 9 has been shown to meet with the
appellant prior to said date. Therefore, the sole
evidence of identification of the appellant which is
the basis of conviction cannot be said proper and
justified in absence of any other corroborative
piece of evidence having not been uttered by a
single witness and even P.W 9 (victim) has not
disclosed the attributability of the present
appellant rather specific attributability has been
alleged against appellants, Nitish Vatsh @ Nitin
Vatsh and Santosh Kumar Singh @ Santosh Singh,
the appellant of Cr.A (DB) No. 928 of 2016 and
appellant of Cr. Appeal (DB) No. 1051 of 2016
respectively.
13. Therefore, learned counsel appearing for the appellant
in Cr. Appeal (DB) No. 889 of 2016 has submitted that the
conviction since is based upon T.I.P. of the appellant which
itself is tainted and hence in absence of any corroborative
piece of evidence having not been deposed by any of the
witnesses the conviction of the present appellant is bad in the
eyes of law.
14. Mr. Rakesh Kumar, learned counsel appearing in Cr.
Appeal (DB) No. 1051 of 2016 [Santosh Kumar Singh @
Santosh Singh] has taken the following grounds in assailing
the impugned judgment:
I. It has been submitted, by referring to the
ingredient of Section 364A of the Indian Penal
Code, that it consists of three parts i.e., (i)
Kidnapping or abduction; (ii) threatening for the
purpose of ransom and (iii) in case of non-payment
of ransom the consequence will be to cause harm
to the kidnapped or abducted person, but in the
instant case none of the ingredients of Section
364A is attracting against the appellant.
II. Submission has been made by referring to the
testimony of P.W. 9 (victim) that it is not a case of
364A IPC so far as the present appellant is
concerned reason being that there is no
threatening for the purpose of ransom said to be
substantiated if the testimony of all the witnesses
will be taken together.
III. It has been submitted that in the facts of the
case at best it is said to be a case of kidnapping as
the ingredient of Section 363 IPC can be said to be
there since there is no evidence of threatening of
causing harm in case of non-payment of amount of
ransom rather it has come in the evidence of P.W.
9 all along that the victim [abducted boy] was not
subjected to any cruelty rather better treatment
was given and even he was provided with food,
kept in the hotel and was not mentally tortured
which itself suggest that he was not subjected to
any threatening in case of non-payment of amount
of ransom. Therefore, the primary ingredient to
attract the offence said to be committed under
Section 364A of the Indian Penal Code will only be
said to be attracted if there is threatening as per
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the second condition as referred in Section 364A
IPC of the Indian Penal Code which is lacking and
hence it cannot be said to be a case attracting
penal provision as under Section 364A of the
Indian Penal Code rather at the best it is a case of
Section 363 I.P.C. i.e.kidnapping.
IV. The ground has also been taken that in the
circumstance the Indian Penal Code provides for
three penal offence i.e., Section 363 which only
speaks about kidnapping; Section 364 IPC which
speaks kidnapping for the purpose of murder and
364A stipulates kidnapping for the purpose of
ransom. Since there is no ingredient of Section
364A IPC in view of absence of ingredient of
threatening, therefore, even if the prosecution story
will be taken in entirety the case will be said to be
under Section 363 IPC. But the learned trial Court
has not appreciated the aforesaid fact and hence
the impugned judgment so far as it relates to
conviction of present appellant for the offence
under Section 364A IPC is not justified.
15. Mr. Mahesh Tewari, learned counsel for the appellant
appearing in Cr. Appeal (DB) No. 928 of 2016 [Nitish Vatsh @
Nitin Vatsh] has taken the following grounds for assailing the
impugned order:
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I. The argument regarding having no ingredient
of Section 364A has also been taken, as has been
taken on behalf of the appellant of Cr. Appeal (DB)
No. 889 of 2016 and Cr. Appeal (DB) No. 1051 of
2016, as such for the sake brevity the same is not
being repeated herein.
II. In addition, thereto argument has been
advanced that it is not a case of Section 34 of the
Indian Penal Code, since the main ingredient of
Section 34 is the common intention is to be there.
It has been submitted by referring to the testimony
of P.W. 9, the victim herein, that he has not
deposed of having the common intention of
kidnapping the victim for the purpose of ransom
since no word has been uttered against the present
appellant for the purpose of attracting ingredient of
Section 34 of the Indian Penal Code.
III. It has been contended by referring to the
testimony of P.W. 9, victim boy [Subham
Choudhary @ Rahul Kumar], P.W. 4 [mother of the
kidnapped boy] and P.W.11-Rajesh Prasad [father
of the kidnaped boy], who have all along disclosed
the mobile number of Santosh Kumar Singh, the
appellant in Cr. Appeal (DB) No. 1051 of 2016, and
there is no reference of mobile number of present
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appellant by disclosing the name of appellant of
the present appeal that he was having any
common intention of kidnapping for the purpose of
ransom.
IV. The learned counsel for the appellant has
taken the ground by referring to the statement of
the appellant recorded under Section 313 Cr.P.C
wherein even though the question was not put to
him as per the evidence gathered in course of trial
rather the evidence which has come against the
appellant of Santosh Kumar Singh @ Santosh
Singh has been put to the present appellant and as
such serious prejudice has been caused that even
though the evidence has not come against the
appellant as has been questioned under Section
313 Cr.P.C but even then the same has been put
presuming the fact that such evidence has come
against the appellant having been deposed by the
witnesses.
V. Learned counsel for the appellant in order to
buttress his argument has relied upon judgment
as rendered by the Hon'ble Apex Court in Raj
Kumar @ Suman vs. State (NCT of Delhi), 2023
Live Law (SC) 434.
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16. Learned Special Public Prosecutor appearing for the
State has responded by vehemently opposing the grounds
agitated by the appellants against the impugned judgment by
defending the same that there is no infirmity in the impugned
judgment:
I. According to learned counsel for the State all
the witnesses have all along supported the
prosecution version right from the first day of the
occurrence wherein it has been stated that
Shubham Choudhary @ Rahul was kidnapped by
the accused Santosh Kumar Singh and Nitish
Vatsh from Sector-II, Bokaro when he was
returning from his tuition. He was taken towards
Dhanbad by the black-coloured Alto car bearing
Registration No. JH09C-0876 which was being
driven by Nitish Vatsh in furtherance of common
intention of co-accused persons Santosh Kumar
Paswan and Om Nath Dixit @ Sakun Dixit who
joined them at Dhanbad. They took the victim to
Maithan from where accused persons Nitish Vatsh,
Sakun Dixit and Santosh Paswan returned with
the car to Bokaro leaving Santosh Kumar Singh
with the kidnapped boy at Maithan telling him that
they will inform him the activities of the police from
Bokaro. The victim boy was kept by the accused
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persons at Asansole wherefrom he was lastly
recovered by the police and the accused persons
Santosh Kumar Singh, Nitish Vatsh and Tamanna
@ Tanu, the alleged wife of Santosh Kumar Singh
were arrested and the ransom money paid by the
informant was recovered from the room where the
kidnapped boy was kept by the accused persons
and said accused persons were arrested from the
same place. Therefore, from the testimony of the
witnesses it is clear that the prosecution has
successfully proved the charge under Section 364A
read with Section 34 of the Indian Penal code
levelled against all the accused persons beyond all
reasonable doubts.
II. So far argument advanced on behalf of
learned counsel for the appellant-Nitish Vtash that
ingredient of Section 34 is not attracted in the case
at hand, submission has been made that the
witnesses have clearly deposed that Santosh
Paswan joined the other accused persons and
victim boy at Dhanbad and took the victim to
Maithan from where accused persons Nitish Vatsh,
Sakun Dixit and Santosh Paswan returned with
the car to Bokaro leaving Santosh Kumar Singh
with the kidnapped boy at Maithan telling him that
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they will inform him the activities of the police from
Bokaro. Therefore, it cannot be said that there was
no common intention attracting Section 34 of the
Indian Penal Code.
III. In support of her argument, learned counsel
for the respondent-State has relied upon following
judgments:
a. Birbal Choudhary alias Mukhiya jee v. State of
Bihar [(2018) 12 SCC 440]
b. Vinod v. State of Haryana [(2008) 2 SCC 246]
c. P. Liaquat Ali Khan v. State of A.P [(2009) 12
SCC 707].
17. Learned Additional Public Prosecutor on the basis of
aforesaid grounds has submitted that the judgment of
conviction and order of sentence requires no interference by
this Court.
Analysis
18. We have heard learned counsel for the parties, perused
the material available on record more particularly the
testimony of the witnesses and the finding recorded by
learned trial Court.
19. This Court before considering the argument advanced
on behalf of the parties is proceeding to consider the
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deposition of witnesses, as per the testimony recorded by
learned trial Court.
20. P.W. 1 Anuragi Prity Kujur @ Anu Kujur was a teacher
at Jain Public School at the time of occurrence and she was
giving tuition to the kidnapped boy Rahul along-with two
other students Sourabh and Abhishek who were the student
of Class-V. This witness has stated in her examination-in-
chief that Sourabh, Rahul and Abhishek, the students of
Class-V, used to come to her residence to take tuition. On
21.05.2010 all students had come to attend tuition class and
she has taken tuition class up-to 11.20 am and after that the
class was over. During tuition class Rahul had told her that
he has to go his house early as he will go for shopping with
his parents and therefore, she has left them at 11.20 am.
After half an hour parents of victim boy came to her and
asked as when she has left their son as he has not reached
the residence till now. Then she went with them to the
residence of Sourabh and Abhishek but found the house of
Sourabh locked. Maternal grandmother said that Abhishek
and Sourav have gone to play in the field and then they went
to the Sector-II/C field and found that Sourabh and Abhishek
are playing there. They told that after the tuition they directly
went to their residence and Rahul went towards his
residence. From there the parents of Rahul went to their
house and she went towards her residence. At that time
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mother of Rahul has told that perhaps Santosh has
kidnapped her son.
21. Cross-examination of the witness was denied by the
learned counsel for other accused persons except Santosh
Kumar Singh. On cross-examination by the learned counsel
for Santosh Kumar Singh this witness has deposed that she
knows nothing about the occurrence.
22. P.W. 2 Anwar Ahmed is an employee of Bokaro Steel
Plant with the informant Rajesh Prasad. This witness has
stated in his examination-in-chief that on 21.05.2010 a boy
Rahul Kumar was kidnapped whose father Rajesh Prasad is
posted with him at Bokaro Steel Plant. He has informed him
on telephone that son of the informant had gone to tuition
but had not returned yet. He also called Anil Kumar Gupta
who came to the residence of this witness and then this
witness along-with Anil Kumar Gupta went to the quarter of
Rajesh and started looking for the boy here and there. At
about 2.30 pm a phone call was received by Rajesh and it
was told that his son was in his custody and Rajesh said that
the call was made by Santosh Kumar who has been
identified. On the same day at about 3 pm again Rajesh was
called and the caller demanded Rs. 8 lakhs in exchange of
release of boy. Then he advised him to inform the matter to
the police and as per the suggestion of Rajesh Prasad this
witness has written the first information report on which after
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reading Rajesh Prasad put his signature. The said written
report was marked as Ext. 1 on his identification.
23. Further in his examination-in- chief the witness has
stated that in the next morning he along-with his friends and
police went to Dhanbad Railway Station where Rajesh was
directed on his mobile to come to Govindpur More and from
there Rajesh was directed to come to Nirsa and after that to
Asansole railway station. The caller who was giving direction
did not meet where he called Rajesh Kumar.
24. It is further deposed that at about 1.00 am in the night
again Rajesh Kumar was directed to come with the money to
the outer signal of Nirsa railway station and then Rajesh
Kumar alone went with the bag of money to the outer signal
of Nirsa railway station and on return Rajesh Kumar said
that he has handed over the bag of money to Santosh Kumar
Singh and Nitish Kumar and they have said that they will
send the kidnapped boy within half an hour.
25. It is further stated that Rajesh Kumar was again
directed to reach Asansole railway station where they will
send the boy. Then they all went to the Asansole railway
station and started waiting where the boy came on an auto-
rickshaw. After de-boarding the boy, auto-rickshaw started
going back and then the police apprehended it and made
query from the driver of autorickshaw who took the police
team and them to Niyamatpur more. The kidnapped boy told
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he can identify the house and then police stopped him and
went with the boy and his father Rajesh Prasad and returned
back taking in custody two boys and one lady and then they
returned to their residence.
26. This witness further stated that on 24.05.10 when he
went near Sudha Dairy booth at Sector-II he saw that police
recovered a black-coloured Alto Car and also recovered a
revolver from the Dicky of the car and prepared its seizure
list. This witness also put his signature on seizure list on
which Anil Kumar also put his signature which was prepared
in carbon copies in his presence. The witness identified his
signature on the carbon copy of the seizure list which was
marked Ext. 2 on his identification.
27. This witness has further stated that the police went with
the accused persons and recovered car and the country-made
pistol and they also followed the police and the accused
persons. Before locking the accused persons in the lock up
the police searched Santosh Kumar Singh and recovered a
mobile of double SIM from the pocket of his pant and
prepared its seizure list. This seizure list was signed by this
witness and Anil Kumar Gupta. The witness identified his
signature as well as the signature of Anil Kumar Gupta on
the seizure list and the signatures are marked Ext. 2 and 2/1
respectively. The witness identified the accused persons
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Santosh Kumar Singh and Tamana present in the court and
he also claimed to identify Nitish Vatsh.
28. During cross-examination this witness has stated that
he has friendship with Rajesh Prasad for 22 years and they
work together. He has further stated in the cross-examination
that except lady accused Tamana all the accused persons are
resident of the locality of Rajesh Prasad. The witness has
stated that on 21.05.2010 the police has inquired into the
offence from him but has not recorded his statement but
further in para 13 he has stated that he told the police all
about the occurrence which was in his knowledge and the
statement of kidnapped boy was taken by the police on
second or third day of the occurrence. The witness has shown
his inability to state that whether the statement of Anil
Kumar was recorded by police or not and has stated that he
has not told the police in his statement that Rajesh Prasad
has also called Anil Gupta on telephone.
29. This witness has also stated that he has not stated to
the police that Rajesh was called on telephone and was told
that Rahul was in their custody at his residence when he was
also present there and has also not stated before the police
that call was made by Santosh Kumar whose voice was
identified by Rajesh Prasad but he has stated before the
police that about 3 pm Rajesh Prasad was called by the
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kidnappers and Rs. 8 lakhs were demanded for release of
boy.
30. The witness has further stated that he has written the
report because Rajesh Prasad was nervous and not in
position to write. In para 20 of the cross-examination the
witness has stated that on 22.05.10 at about 11.12 am from
Bokaro, he along-with Anil Kumar Gupta, Rajesh Prasad and
elder son of Rajesh Prasad had gone to Dhanbad railway
station.
31. The witness was unable to say the name and number of
the police personnel and the driver of the vehicle. The witness
has also stated that he did not tell the police in his statement
that when they reached Dhanbad the kidnappers called and
said to come at Govindpur and then to come to Nirsa and
after that Asansole and again to come to outer area of Nirsa
station and has also not stated to the police that Rajesh came
back and told that he has handed over the bag of money to
Santosh Kumar Singh and Nitish Kumar and has also not
told that Rajesh Kumar said that they will send his son
within half an hour and has also not stated that again phone
was received by Rajesh Kumar through which he was
directed to reach the Asansole railway station and wait for
the boy.
32. The witness has also stated that he has not stated
before the police that when the kidnapped boy was asked, he
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said that he can identify the house and police went with
Rajesh and his son to the house and apprehended a woman
and two boys from there.
33. During cross-examination on behalf of Santosh Kumar
the witness has stated that he is known with Rahul since his
childhood. The witness has also stated that in his statement
given before the police he had not mentioned about the
recovery of mobile from the possession of Santosh Kumar.
The witness denied the suggestion that he has not gone to
Dhanbad, Nirsa or Asansole and is giving false statement in
friendship of Rajesh Prasad.
34. Further during cross-examination, the witness has
stated that before coming his present residence Rajesh
Prasad was living in another quarter of Sector-II but he has
never gone there and Rajesh Prasad has not complaint
against his neighbours of his earlier quarter.
35. Further during his cross-examination, he has stated
that he was with Rajesh Prasad at 2.30 pm when he was
called by the kidnappers for ransom and after that went with
him to the police station and lodged the FIR and remained
with him till 6 pm.
36. The witness has stated that he saw Santosh Kumar for
the first time on 24.05.2010 at about 5'O clock but cannot
say the place where he saw him. He stated that he saw
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Santosh at about 15 km away from Asansole station and not
at Asansole railway station.
37. P.W. 3 Anil Kumar Gupta is also one of the friends of
informant. This witness has stated in his examination in chief
that on 21.05.2010 at about 1.30 pm Rajesh Prasad called
him on telephone and informed that his son Rahul did not
return from the tuition and told him to come. He went to the
residence of Rajesh Prasad with his friend Anwar Ahmed and
started searching Rahul and after that went to the police
station where Rajesh Prasad submitted a written report
which was written by Anwar Ahmed.
38. He has further deposed that on the next day they went
with the police to Asansole where Rahul was recovered and
after that they returned to Bokaro. The witness identified his
signature on the carbon copy of the seizure list which is
marked Ext. 2/3 on his identification. The witness also
identified his signature on other seizure list marked Ext. 2/2.
39. During the cross-examination the witness has stated
that he cannot say that from whose possession the mobile
was recovered. The witness has also stated that he has put
his signature on the seizure list in the police station and has
not completely read the seizure list.
40. P.W. 4 Jyoti Devi is the mother of kidnapped boy Rahul
who has also supported the prosecution case and has stated
that on 21.05.2010 her son went to attend tuition class of
- 24 -
Anu Madam at about 10.30 am at Sector-II/C, Street-6.
Generally, he used to return by 11.30 am but on that day
when he did not return till 12 noon then she along with her
husband went to the residence of Anu Madam who told that
Rahul has said that today he has to go to market with his
parents and therefore she finished the class at 11.20 am.
41. She has further deposed that two other students
Abhishek and Sourabh were also attending tuition class with
Rahul and they went to their houses with Anu Madam but
they had gone to play in the field where she met with the
boys. Both of them told that after the tuition class Rahul has
gone towards his residence. Then they started searching his
son. During the search they came to know by a lady in
Street-6 that two boys had taken Rahul in a black-coloured
Alto car.
42. She has further deposed that at about 12.30 pm her
husband called her friends Anwar Ahmad and Anil Gupta
and told them about the missing of his son. In the meantime,
at about 2.30 pm a phone call was received on the mobile of
his elder son namely Abhishek and was told that Rahul was
in their possession and the caller said to call again after half
an hour. Again, at about 5 pm the kidnappers called and said
to arrange Rs. 8 lakh till 5 pm of the next day and threatened
to kill Rahul in case they inform to the police. Then her
husband went with his friends to the police station.
- 25 -
43. She has further stated that her son was recovered on
24.05.10 from Asansole railway station. On return his son
told that when he was returning from tuition a black-
coloured car was standing on the turning and Santosh
bhaiya and Nitish Bhaiya were standing along with the car
and they told him to come with them and he did not want to
go with them but they forcefully seated him in the car. The
car was driven by Nitish and Santosh was sitting on the back
seat.
44. She has further stated that she was told by her son that
he was taken towards Dhanbad via Sector-VIII and IX and
they purchased some tablets in the way and forced him to
consume it after showing gun and her son also told that two
other boys Sakun Dixit and Santosh Paswan were also seated
in the car at Dhanbad.
45. The witness has further stated in her examination-in-
chief that before the recovery of her victim son, she was
called on her mobile phone in the night of 22.05.2010 at
about 2.30 to 3.00 am and the caller demanded money after
abusing her on which she said that her husband has gone
with the money. The witness identified accused Santosh
Kumar Singh present in the court.
46. During cross- examination she has further stated that
earlier she was residing in Qrt. No. 2-445, Sector-II/C, Street-
1 and Santosh Kumar was residing just besides her Qrt. No.
- 26 -
2-456 and she lived in that quarter for 10 years. After the
change of the quarter sister of Santosh used to visit her
residence and there was no inimical relation with her family
and family of Santosh Kumar Singh.
47. This witness has further stated that she does not
remember that what she has stated to the police in her
statement. She further stated that she does not remember
that she has stated to the police that both the friends of her
husband were sitting in her house talking with her husband
when at about 2.30 pm phone call was received on mobile of
his elder son. On the suggestion given by the defence the
witness has stated that she has stated all before the police
which she has stated in her examination-in-chief.
48. During cross-examination the witness has stated that
call was made from mobile no. 9771169356 on the mobile of
my elder son and herself as she remembers. All the calls were
made by the same phone. The witness has further stated in
her cross-examination that during the search the woman of
Street-6 who has stated about the black-coloured car on
which Rahul was taken was an unknown lady.
49. During cross-examination on behalf of Sakun Dixit and
Nitish Vatsh the witness has stated that she came to know
Sakun Dixit and Nitish Vatsh after the occurrence and their
names were told to her by her victim son Rahul. Regarding
the identity of Santosh Paswan, the witness has stated during
- 27 -
the cross-examination that her son Rahul has also told about
Santosh Paswan.
50. P.W. 5 Abhishek Choudhary is the brother of the
kidnapped boy Rahul who has also stated that his younger
brother Rahul has gone to attend tuition class at the
residence of Anu Madam from where he did not return till
noon while generally used to return at about 11.30 am. His
parents went to ask Anu Madam who told that she had
finished the class at 11.20 and then his parents went to the
other students who were also attending tuition class with
Rahul. They told that soon after the class was over Rahul had
proceeded towards his residence and then his parents
returned to the residence and told that a lady has stated that
in Street-6 two boys have taken Rahul in black coloured Alto
Car. His father informed the matter to his two friends Anwar
Ahmed and Anil Kumar Gupta who came to their residence.
51. He has further deposed that they searched his brother
and were sitting out of the house when at about 2.30 pm in
he received a call on his mobile and the caller told that Rahul
was in his custody and said that he will call again after half
an hour. At about 3 pm again he received call and the caller
said to arrange Rs. 8 lakh till 5 pm of the next day and said
not to go to the police otherwise they will lose Rahul and then
his father went to the police station with his friends.
- 28 -
52. He has further stated that the caller called him by the
mobile no. 9771169356 and he identified the caller from his
voice that it was the voice of Santosh because he was known
to Santosh Kumar Singh from his childhood. Again, at about
3.11 pm an SMS was received on his mobile on which again
the ransom was demanded and threatening was given that in
case they go to the police they shall lose Rahul.
53. On the next day he along-with his father, friends of his
father namely Anil and Anwar went to Asansole via Dhanbad
with police team. On 24th May at about 4 am Rahul reached
on Asansole railway station by tempo. The police personnel
went to Niyamatpur taking tempo driver and Rahul with
them. He along-with his father's friends Anil and Anwar were
standing on a road while police went ahead and after
sometime returned back with Santosh Kumar, Nitish Vatsh
and a lady with the ransom money kept in black colour bag.
The witness identified Santosh Kumar Singh and Nitish
Vatsh present in the court and said that he cannot identify
other accused persons.
54. During cross-examination on behalf of accused Santosh
Kumar Singh, the witness has stated that he does not
remember that where and how many places he has gone to
search his brother. The witness was unable to say the mobile
number on which he has received the telephone call and has
stated that the mobile was not regularly kept by him.
- 29 -
55. He has stated that accused Santosh Kumar Singh was
not regular visitor of his house but in the childhood, he used
to come to his house. The witness has also not stated the
correct time of departure from Asansole to Bokaro.
56. On the suggestion of the defence the witness has stated
that all which he has stated in his examination in chief has
stated before the police during his statement. During cross-
examination on behalf of Nitish Vatsh and Sakun Dixit he
has stated that police has recorded his statement on
21.05.2010. He has stated that after recovery of Rahul the
police took him at first to the places where he was kept by the
accused persons which is known as Lachchipur Dhal.
57. P.W. 6 Balendra Kumar is a police constable who has
stated in his examination in chief that on 22.05.2010 he was
posted in Technical Cell of confidential department of the
office of Superintendent of Police, Bokaro. On that day a team
was constituted by the Superintendent of Police of Bokaro for
the recovery of kidnapped boy Rahul and he was also a
member of the team. He was directed to remain with the
father of Rahul which he obeyed. The kidnappers were asking
for the ransom amount on mobile from the father of Rahul
who was nervous and then he started talking with the
kidnappers.
58. He has further deposed that the kidnappers called them
to Dhanbad, Govindpur and Khalsa Hotel and lastly to the
- 30 -
Asansole railway station and after that to board a passenger
train. They further directed to throw the money bag near
Sitarampur station but he did not throw the bag there. They
were directed to leave the train at Kulti railway station and
were again directed to come towards east cabin.
59. He further stated that the father of the kidnapped boy
was said to come alone towards east cabin who alone went
there. On returning father of kidnapped boy said that they
took the bag of money and have said to leave the boy on
Barakar railway station. Thereafter, they went to the Barakar
railway station but did not find the boy and then contacted
the kidnappers on the phone who became ready to send the
boy at Asansole railway station.
60. He has further deposed that the team went to the
Asansole railway station where the boy reached on a tempo
and was recovered by the police team. On identification of the
victim boy the police team raided the residence of the
kidnappers with the help of the local police from where the
kidnappers were arrested and the money paid in ransom was
recovered. The witness identified Santosh and female
kidnapper present in the court and said that the third man
arrested was Nitish Vatsh. The witness has further stated
that they returned Bokaro with the recovered boy, kidnappers
and the money given in ransom.
- 31 -
61. During cross-examination this witness has stated that
he is a science graduate and has talked with the kidnappers
presenting him a relative of the father of Rahul. The witness
could not tell the number of mobile from which call were
made but he has stated that he was receiving the call on
mobile no. 9973379521 which was his personal mobile as the
battery of the mobile of the father of Rahul was discharged.
The witness has stated that he cannot say that how many
times he attended the call of kidnappers and also cannot say
that who was calling from other side.
62. The witness has further stated that his mobile was
seized by the police and the SIM which was used in the
mobile was in the name of one friend Dharmendra Kumar.
Further during cross-examination, the witness has stated in
detail how many times they stayed at Sitarampur and Kulti.
The witness denied the suggestion put by the defence that he
has not stated to the police in his statement that on the
instance of the auto driver and kidnapped boy, the place
where the kidnappers were hiding was raided and kidnappers
were arrested along with the ransom money.
63. On cross-examination on behalf of accused Santosh
Kumar Singh the witness has stated that he has gone on
motorcycle and the members of other police team were on
four-wheeler which was driven by police driver. They went to
Dhanbad and after that to Khalsa Hotel and till night
- 32 -
remained in the vehicle. They were at Asansole till the
arresting of the kidnappers.
64. P.W. 7 Sukhwant Singh who was also a member of team
constituted by police has also stated in his examination in
chief that on 22.05.2010 he was posted in B.S. City police
station Bokaro when the information of kidnapping of a boy
Rahul was received in the police station. A police team was
constituted by Baleshwar Sahu the then police officer of the
police station for the recovery of the child and arresting the
accused persons.
65. On receiving the information from Technical Cell, the
witness was deputed at Salampur and Dendua and after that
at Maithan and Khalsa Hotel, Govindpur. On 23.05.2010 he
was present at Asansole station at 10 pm night and at about
1.30 am went to Kulti. Rahul was recovered at 4 am in the
morning of 24.05.10 with the help of Niyamatpur police
station they raided the house of Ramakolen from where
Santosh Kumar Singh, Tamanna @ Tanu and Nitish Vatsh
were arrested and the money paid as ransom was recovered
and they all were taken to Bokaro.
66. He has further deposed that from the garrage of Nitish
Vatsh at Sector-II/A, Bokaro a Alto Car and a country-made
pistol was recovered and Sakun Dixit was also arrested. The
witness has further stated in his examination in chief that
they reached at the house of Ramakolen on the instance of
- 33 -
Rahul. The witness identified Taranum @ Tanu and Santosh
Kumar Singh present in the court and claimed to identify
Nitish Vatsh and Sakun Dixit.
67. The witness has stated during cross-examination that
he cannot produce any written evidence in support of
constituting the police team but has stated that Manoj
Kumar Sharma, Vikram Kumar and Baleshwar Sahu were
the member of the team. Some police personnel again joined
the team but he does not remember their names. Total 7
police officers were member of the team which proceeded to
Govindpur and Dhanbad by Scorpio vehicle. They stayed at
Govindpur Hotel in the night and proceeded towards
Asansole in the morning of 23rd and remained present at the
railway station till the morning of the next day.
68. The witness has stated that they raided and surrounded
the house on the instance of Rahul and accused persons
Nitish, Tamanna and Santosh Kumar Singh were present on
the same place and they were arrested by the police.
69. P.W. 8 Manoj Kumar Sharma is also a police constable
posted in Jaridih P.S and was also a party of the team. This
witness has stated in his examination in chief that he had
gone with the police officer Baleshwar Sahu on 22.05.10 to
Khalsa Hotel and after receiving information went to the
Asansole station where Rahul reached by tempo at about
4.20am and they went with Rahul to the local police station
- 34 -
and raided the house of Ramakolen at Lachchipur Dhal on
the instance of Rahul and arrested Santosh Kumar Singh,
Tamana @ Tanu, Santosh Paswan and one another. Rs.
1,75,000/- cash was also recovered from the house and the
accused persons were arrested and the process of seizure was
completed there and then they returned to Bokaro Steel City
with the arrested accused, recovered money and kidnapped
boy Rahul.
70. During cross-examination on behalf of Santosh Paswan,
this witness has denied the suggestion put by the learned
Counsel that accused Santosh Paswan was not arrested from
the house which was raided by them.
71. During cross-examination on behalf of Santosh Singh
the witness has stated the names of the some of the police
personnels of the team but could not tell the actual number
of the police team and also could not tell when the ransom
money was taken by Santosh Kumar Singh. The witness has
stated during cross-examination that after the recovery of the
kidnapped boy they went to Niyamatpur police station and
then on the information of the boy went to Lachchipur Dhal
and raided the house of Ramakolen.
72. In para 8 of his cross-examination this witness has
stated that the father of kidnapped boy and his friends were
not with them. During cross-examination by Nitish Vatsh and
Sakun Dixit, the witness has stated that he was the member
- 35 -
of the team of police officer Baleshwar Sahu and the place
where he was deputed was controlled by Hawaldar Ranveer
Singh on the direction of Junior Police Officer. The witness
could not tell the number of tempo on which Rahul reached
on Asansole station.
73. P.W. 9 Shubham Choudhary @ Rahul Kumar is the
victim boy who was kidnapped by the accused persons and
was aged about 12 years at the time of the examination on
09.12.2011.
74. This witness has stated that on 21.05.2010 he has gone
to attend tuition class at the residence of Anu Madam and
was returning to his residence at about 11.20 am. When he
reached on the turning of his house near a Gumti, Santosh
Kumar Singh and Nitish Vatsh were standing there with a
black-coloured Alto car. Santosh Kumar Singh called him
and said to come with them for walking. When he said that
he had to go to Chas Market with his father and mother, he
was dragged, caught hold by his hand and seated him in the
car. Santosh Kumar Singh sat with him on the back seat of
the car and Nitish Vatsh was driving the car. They were
driving the car towards Ram Mandir but turned mid-way and
went to Co-operative colony. After stopping the car Nitish
Vatsh went out of the car for two minutes and returned back
and then told Santosh that he could not find the material.
- 36 -
75. The witness has further deposed that they took him to
Basanti More via Sector-IV. Santosh Kumar Singh told
someone on telephone that he has lifted and then again
turned the car and went towards Sector-VIII via Bokaro
General Hospital and purchased 5-6 tablets which was like
tablet of Bhang and one bottle of water and then proceeded
towards Sector-XI. Santosh Kumar Singh told him to eat the
tablets and when he denied to eat, he showed him pistol and
threatened to kill, then he consumed the tablets. Then they
took him to Dhanbad where other two persons namely
Santosh Paswan and Sakun Dixit also rode on the car. From
Dhanbad they took him to Maithan where they took him out
of car. Santosh also came out of the car. The rest of the
persons said to Santosh that they are returning to Bokaro
and shall inform the activities of the police to him.
76. The witness further stated that Santosh Kumar Singh
took him into the forest area of Maithan and seated him
there. He had made call to someone on mobile and said to
pay Rs. 8 lakh as ransom and in case of no payment was
made, he threatened to kill him. At about 6 to 7 pm Santosh
Kumar took him to a hotel and locked him in the room. He
carried some food for him and after eating the food he slept
there.
77. He further deposed that on second day they remained
there in the hotel and at about 4 pm Nitish Vatsh came there
- 37 -
and again at about 6-7 pm Nitish Vatsh and Santosh took
him towards river bank. They stayed there till the night. In
the early morning at about 3-4 am they took him to Asansole
by bus. At Asansole Santosh and Nitish Vatsh took him to a
room where a lady was present whose name was Tamanna.
When Tamanna asks them as to who the boys is then
Santosh whispered something in her ear and after taking
meal this witness again slept. When in the evening he awoke
Santosh and Nitish Vatsh went somewhere and again he slept
there in the night after taking meal. At about 4 am Tamanna
awakened him and talked someone on telephone and said
that she is getting somthing ready. She handed over mobile to
this witness and said to talk to and then Santosh told him on
mobile that his father has sent a tempo which is reaching
within 5 minutes. After 10 to 15 minutes Santosh and Nitish
Vatsh came there. Santosh was having a black-coloured bag
with him. They took him with them and seated him in the
tempo.
78. He further deposed that they said the tempo driver to
drop him (victim) near ATM at Asansole railway station. The
tempo driver took him to the Asansole station where after
coming out of the tempo he found that his father was present
there. The police team surrounded the tempo and caught him
and took him to the Niyamatpur police station. The police
team took him with the tempo driver to the room where he
- 38 -
was kept and he showed the room to the police. The police
arrested Santosh Kumar Singh, Nitish Vatsh and Tamanna
from there and also recovered black coloured bag kept under
Chouki (wooden cot) and took them to Niyamatpur police
station. There the police recorded the statement of Nitish
Vatsh, Santosh and Tamanna and after that they returned to
Bokaro and reached Bokaro about 10.30 am.
79. Further during the examination-in-chief, the witness
has stated that he has gone to the Chas jail for identification
on 28.05.2010 and there he identified Santosh Kumar Singh,
Nitish Vatsh, Sakun Dixit and Tamanna. Again, during the
identification parade dated 11.06.2010 he also identified
Santosh Paswan.
80. The victim boy has also stated that his statement was
recorded by the Magistrate in the court on 29.05.2010 on
which he has put his signature after reading it. On his
identification his statement recorded by the Magistrate was
marked Ext. 3. This boy identified accused Tamanna present
in the court and claimed to identify other accused persons.
81. During the cross-examination on behalf of Nitish Vatsh
and Sakun Dixit, this witness has stated that he was student
of MGM Higher Secondary School at the time of occurrence.
In the answer of the question put by the ld. Defence counsel
the boy has stated that 1 meter = 100 c.m. and has also told
his height to be at about 5 feet. The witness has also stated
- 39 -
that he knows Santosh Kumar Singh from his childhood who
offered him to go by car instead of walking. He was not
known to other persons before the occurrence. He came to
know the names of other accused persons as was told by
Santosh Singh. He has stated the names of accused persons
as stated by Santosh Kumar Singh. The boy has stated that
he did not raise any alarm at any place where he was kept by
accused persons. In the answer of the question on
identification parade the boy has stated that the accused
persons were standing in a line along-with several persons.
82. He participated in identification parade for the first time
on 28.05.2010 and second time on 11.06.2010. During cross-
examination on behalf of Sakun Dixit the witness has given a
detailed description of the places where he was taken by the
accused persons by car. The boy could not say the number of
the room of hotel at Maithan where he was kept on 21.05.10
but has stated that the register was filled. Further during the
cross-examination, the witness has said that he met the
police only on 24.05.2010 in the morning and all the police
personnel were in civil dress.
83. In answer of the question during cross-examination on
behalf of Santosh Paswan the witness has stated that police
have shown him, Santosh Paswan in the police station before
the identification parade and he has identified him in the
police station and has identified him in the jail also.
- 40 -
84. P.W. 10 Dinesh Kumar Gupta was the inspector of
police and posted as officer-in-charge of B.S.City police
station on 21.05.2010. The witness has stated in his
examination-in-chief that on that day he received a written
report of informant Rajesh Prasad informing that his son was
kidnapped while returning from tuition class. He named his
earlier neighbour Santosh Kumar Singh as kidnapper and
also submitted through written report that Santosh Kumar
Singh demanded Rs. 8 lakh in exchange of releasing his son.
85. He has further deposed that on the basis of written
report he has registered B.S. City P.S. Case No. 122/10 and
handed over the charge of investigation of the case to S.I
Baleshwar Sahu. The witness identified the endorsement
made by him on the written report which is marked as Ext.
1/1 on his identification. The formal FIR was written by
constable Bipin Kumar Singh on his direction which was also
signed by him. On the identification of the witness the formal
FIR was marked as Ext. 4. Further during the examination-
in-chief the witness has stated that he informed the
occurrence to the Superintendent of Police, Bokaro and
requested him to provide the call detail report and tower
location of the mobile phone by which Santosh Kumar Singh
was calling.
86. He has further stated that on 22.05.2010 he came to
know that the tower location of the accused was at Maithan
- 41 -
and then on 22.05.10 the I.O, S.I Baleshwar Sahu, S.I.
Deepak Kumar, S.I. Suresh Prasad and armed forces
proceeded towards Maithan area to search the accused. On
the same day in the evening i.e. 22.05.10 another team was
constituted in his leadership comprising of inspector Ashok
Kumar, officer-in-charge of Chas police station, S.I. Basudeo
Sah, ASI Ashok Kumar Singh, ASI Chandradeo Singh,
constable Harendra Pathak and constable Niranjan Prasad
and he proceeded with this team in the evening of 22.05.10.
Driver Kailash Prasad and constable Balendra Kumar of
technical cell were also sent with their team.
87. He has stated that the informant was called by the
accused to come at Dhanbad railway station with the ransom
money and when they proceeded towards Dhanbad railway
station and were to reach to the station the accused informed
that he has changed his place and called at Khalsa hotel,
Govindpur, Dhanbad. On receiving that information, they
followed the informant to Khalsa hotel. After sometime the
accused again called and said to come at Nirsa with the
money. Then they went to Nirsa in the same night. They tried
to contact the accused there on phone but could not succeed.
On the next day i.e. 23.05.10 accused said to come at
Asansole railway station. Then all the members of the police
team reached at Asansole police station and waited till the
evening. The accused was talking with the informant after
- 42 -
some interval and was also communicating through SMS.
The informant was nervous and was unable to talk to the
accused properly and thereafter constable Balendra Kumar
made contact with the accused on his own mobile and
sometime on the mobile of informant. In the night the
accused said to informant to come at Kulti railway station
and to board a passenger train and then the informant,
constable Balendra Kumar and other police personnel went
with the money and boarded on passenger train. This witness
along-with his team also proceeded towards Kulti railway
station by road.
88. He has further deposed that in the night of 24.05.2010
at about 1 pm the accused called the informant and said to
come alone with the bag of money towards the cabin of the
station and directed to put the bag beside the railway line.
Then informant went with money bag and kept it on the place
as directed by the accused. Balendra and others were
watching from side and two persons came and lifted the bag.
The informant identified them and told that Santosh Kumar
Singh has lifted the bag.
89. He has stated that the accused had made a call to the
informant and directed him to go to Barakar. The police team
went to Barakar but they did not find the victim boy. Again,
on contacting the accused said that he is sending the boy at
Asansole railway station. Then the team went to the Asansole
- 43 -
Railway station where the kidnapped boy reached on tempo
at about 4 am.
90. He has deposed that the police team apprehended the
tempo driver who told the place from where he had taken the
boy. This place was a house situated at Lachchipur Dhal in
Niyamatpur police station, West Bengal. Then the police team
along-with the tempo driver and the recovered boy went to
Niyamatpur police station and with the help of Niyamatpur
police raided the house of Smt. Ramakolen on the
identification of the kidnapped boy and the tempo driver.
They arrested Santosh Kumar Singh, Nitish Vatsh and
Tamanna @ Tanu who were living there as tenant. On
identification of the accused persons the ransom money Rs.
1,75,000/- kept in air bag was also recovered from the room.
91. He has deposed that all the accused persons confessed
their involvement in the commission of alleged crime and
based upon their confessional statement the black colour Alto
car was recovered from the garage of Nitish Vatsh and the
Pistol used in the offence was also recovered from the dicky of
car.
92. He has further deposed that the aforesaid arrested
accused persons have also stated about the involvement of
their friends Santosh Paswan and Sakun Dixit in committing
the offence with them. The police inspector identified the
- 44 -
accused Santosh Kumar Singh and Tamanna @ Tanu present
in the court.
93. During cross-examination the witness has stated that
the I.O has recorded his statement during the investigation
and has also stated that the ransom money to be paid to the
accused persons was carried by the informant which he has
seen. The witness could not say that what time in the night of
22.05.2010 they reached at Khalsa hotel but has told the
names of the member of the team of police which
accompanied him at Khalsa hotel.
94. The witness has also stated that he had deputed I.O
Baleshwar Sahu, S.I. Deepak Kumar, S.I. Suresh Prasad and
other police personnels at Asansole railway station. The
witness has also stated that one team of the police has
proceeded at about 10 pm in the night from Asansole to Kulti
by train and the other team headed went to Kulti by road.
95. In para 13 of his cross-examination the witness has
stated that the statement of tempo driver and Rahul was
taken by the I.O and in para 16 of the cross-examination the
witness has stated that he does not remember as to whether
the apprehended accused persons have told the names of
other accused persons and their friends or not.
96. In para 17 the witness has stated that the place from
where the boy was recovered is the area of government
railway police. The witness has again reiterated in para 18
- 45 -
that the police team reached on the Kulti station before 1 pm
in the night of 23/24.5.2010 and some police personnel were
spread here and there and constable Balendra Kumar was
with the informant along-with 3-4 friends of the informant.
The witness has also stated that on each note which has to
be given as ransom, the informant had put his initial
signature. The informant had gone alone to keep the money
near the cabin.
97. During cross-examination this witness has proved the
fact in para 25 of cross-examination that the seizure list was
prepared in the house of Ramakolen. In para 31 of the cross-
examination the witness has stated that the kidnapped boy
has stated about the occurrence in his presence.
98. P.W. 11 Rajesh Prasad is the father of kidnapped boy
and the informant of the case who has stated in his
examination in chief that his son had gone to attend the
tuition class in Qrt. No. 4-185, Street-6, Sector-II/C at the
residence of Anu Kujur Madam. He had said to his son to
come early as they have to go to market and they were
waiting him but he did not return till 11.30 am and then he
went to the house of Anu Kujur who told that she had
finished the class at 11.20. Then they went to the friends of
Rahul who were also taking tuition with him and asked about
Rahul and started searching him. During the search when
they came on the turning of his residence some persons were
- 46 -
gathered there among whom a lady told them that two boys
had taken Rahul by a black colour Alto Car. The informant
continued searching his son and called his friends Anwar
Ahamad and A.K. Gupta by telephone and searched his boy
with them here and there.
99. He has further deposed that at last, he along with his
friends were sitting at his residence and were thinking for
further action when a phone call was received on mobile and
that time mobile was with his elder son. The caller told on
mobile that Rahul was in his custody and in good condition
and said that after half an hour he will call again and after
that call was disconnected. His elder son said that he
identified the voice of the caller who was Santosh Kumar
Singh. He also told that the call was made from mobile no.
9771169356. The phone was received by his elder son on
mobile no. 8873577537.
100. He has further deposed that they started waiting for
second call and at about 3 pm again the caller had made call
and said to arrange Rs. 8 lakh till 5 pm of the next day and
the caller also said that they will lose Rahul if the matter is
informed to the police. Then the informant came to know that
his son was kidnapped. Then he went to the police station
with his friends and submitted a written report before the
police of Bokaro Steel City police station. The written report
was written by his friend Anwar Ahmad on the dictation of
- 47 -
the informant on which the informant put his signature after
reading it. The informant identified the written report already
marked Ext. 1. Further in his examination in chief the
informant has stated that again call was received on the
mobile of his elder son when they were at police station and
the caller said to arrange Rs. 8 lakh and again threatened
that in case of not arranging the money they will lose Rahul.
101. He has further deposed that the police told to go back
to their residence and directed to furnish further information
if any received. In between 4.30 to 4.45 police came to their
residence, inspected the place of occurrence and inquired
from his family member and his friends. On the next day in
the morning, he again went to the police station where it was
told that the police team is going to search the boy and one
team has already proceeded at about 10.30 am. They told
him to arrange some money till the evening and accordingly
he could arrange Rs. 1,75,000/- till the evening. The
informant put his initial signature on each of the notes in
presence of the police officers in which 91 notes were of Rs.
1000/- and 168 notes were of Rs. 500/-. All the money was
kept in bundles in a black colour bag.
102. He has stated that on 22.05.10 Santosh Kumar Singh
called on mobile at about 5 pm and he told him to come alone
on motorcycle. At first, Santosh Singh called him at Dhanbad
railway station then this witness informed the same to the
- 48 -
police officers. The police team kept constable Balendra
Kumar Singh with him and directed him to tell the
kidnappers that he is relative of the victim boy. After that he
along-with constable Balendra Kumar proceeded towards
Dhanbad on motorcycle. The officer in charge of police station
and police force followed them on vehicle. After reaching
Dhanbad he contacted the kidnappers who told him to come
towards Dhanbad railway station and when they proceeded
towards Dhanbad railway station, the kidnappers called and
said to come Hirapur market complex and again called and
said to come to Khalsa hotel, Govindpur. Then they reached
at Khalsa hotel, Govindpur and started waiting.
103. He has stated that at about 11 pm in the night the
kidnappers directed him to come towards Nirsa and then
informant and Balendra Kumar proceeded to Nirsa. The
police team followed maintaining some gap. After reaching
Nirsa they started waiting and in the meantime the battery of
the mobile phone of informant was discharged and they could
not contact the kidnappers till two hours. Then the
kidnappers made call on the mobile on his wife and abused
her and then his wife told him that her husband has gone
with the money. Then the informant called the kidnappers by
the mobile of Balendra Kumar and said them to contact on
that mobile stating that battery of his mobile has discharged.
Then the kidnappers said that now they shall call at about 10
- 49 -
am on the next day and switched off their mobile. They
stayed there and started waiting. At about 10 am a call was
made on the mobile of Balendra Kumar and said to come to
Asansole railway station, then the informant and others went
with the ransom money. In the day after some interval the
kidnappers started threatening to informant that they will kill
Rahul as he has come with the police.
104. He has stated that on 23.05.10 at about 8.30 pm the
kidnappers called and directed to inquire about the train
going towards Dhanbad and accordingly they inquired and
came to know that a local train is scheduled to depart at
about 11 pm in the night. Then the kidnappers directed him
to sit in third coach of the train. Informant and Balendra
Kumar took seat in the third coach of the train and the
members of police team boarded on the train here and there.
When the train reached at Sitarampur the kidnappers said to
throw the bag on the platform but the informant avoided their
call saying that the voice is not clear. Then they directed him
to leave the train at Kulti railway station. After that they de-
boarded the train at Kulti railway station and started waiting
for the next call.
105. He has stated that in between 1 to 1.15 am in the night
the kidnappers called and directed him to proceed towards
Dhanbad at outer signal alongwith the ransom money. Then
the informant alone proceeded to the outer signal by the side
- 50 -
of railway track. After sometime the kidnappers directed him
to stop and after 10 seconds Santosh Kumar Singh and
Nitish Vatsh came there and told him to put the bag of
money. He put the money bag in front of them and they told
him return and not turn around. When the informant asked
that when they will return his son, they said that he will get
his son after half an hour. The informant turned back and
heard the sound of running and when he turned back, he
saw the accused persons fleeing. Then he returned to the
platform and started waiting for the next phone. After half an
hour he received telephone call through which they directed
to come to Barakar where they will hand over his son.
106. He has further deposed that he along with others
reached to Barakar by Mourya Express. At about 2.30 am in
the night the informant contacted the kidnappers who
directed them to come to Asansole. Then the informant and
constable Balendra Kumar went to Asansole. At about 4 am
in the night the kidnappers called and gave a number of
tempo which was WB-37B-4943 and also told the mobile
number of the tempo driver and said to receive his son near
the ATM. After 30 to 40 minutes the tempo reached there
with his son and the police team directed him to receive his
son and to sit in the vehicle of police team.
107. He has stated that the police apprehended tempo driver
who said the police team to take them to the place from
- 51 -
where he was taking the boy. The police team went to the
Niyamatpur police station taking the tempo driver with them
and the informant was also with the police team. With the
officer-in-charge of Niyamatpur police station proceeded
towards the place from where the tempo driver has taken
Rahul on his tempo. From that place Rahul took the police
team to the house where he was kept by the kidnappers. The
police team raided the place from where Santosh Kumar
Singh, Nitish Vatsh and a lady Tamanna were arrested. The
team also recovered the bag of ransom money kept under the
chouki (wooden cot) in the room. The police opened the bag
and found that money was kept in the bag which the police
showed to the informant. The police prepared seizure list.
108. He has further deposed that they came to Niyamatpur
police station and from there proceeded towards Bokaro and
reached Bokaro at about 10.45 am. He deposed that on
asking Rahul told that when he reached the turning of the
house after attending tuition class, Santosh Kumar Singh
and Nitish Vatsh were standing there with a black colour car.
Santosh called Rahul and said to come with him as he has to
purchase a gift for a boy of his age group. When he refused to
sit in the car, Santosh Kumar forcibly seated him in the car.
Nitish Vatsh was driving the car who drove the car via Ram
Mandir to Sector-IX they purchased tablets at Sector-VIII and
- 52 -
a water bottle and took him towards Dhanbad via Sector-XI.
In the way they forced him to consume the tablets.
109. The witness further deposed that his son also stated
that at Dhanbad two other persons Santosh Paswan and
Sakun Dixit also boarded on car. They kept him at a hotel at
Maithan. On the next day in the evening they took him to
Lachchipur Dhal, Asansole wandering here and there and
kept in a house where Tamanna was living.
110. The witness has further stated that he has gone in the
TIP on 28.05.2010 with Rahul and has identified Santosh
Kumar Singh, Nitish Vatsh and Tamnna. On 12.06.2010 he
had also identified the money which he has paid as ransom
as he has put his initial signatures on the notes. The
informant claimed to identify the accused persons.
111. During the cross-examination on behalf of Tamanna the
informant has stated that he has seen her at her residence.
The witness has stated during cross-examination that 14
police officers including officer-in-charge of Bokaro Steel City
Police station Baleshwar Sahu were with him during the
search. The witness has also stated that the place where his
son was kept is at the distance of 20 minutes running from
Asansole station. His son had only identified the place where
he was kept and has not told the address. The witness has
further stated that there was no tape or sedative substance
were found in the room of Tamanna and he further told that
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his child was free and not tied with rope inside the room.
Tamanna told to the police in his presence that she is the
wife of Santosh Kumar Singh.
112. The witness denied the suggestion put on behalf of
accused Tamanna that the witness has gone willingly on a
tour and was not kidnapped.
113. During cross-examination on behalf of Santosh Paswan
the witness has stated that he was not known earlier with
him.
114. Further during cross-examination on behalf of Santosh
Kumar Singh the witness has stated that an unknown lady
has shown the place from where his son was lifted by the
kidnappers on car which he told to the police inspector D.K.
Gupta on 21.05.2010 at about 4.30 pm. Further the witness
has stated that the FIR was lodged on the written report and
after lodging the FIR the police informed the matter to the
Superintendent of Police.
115. Regarding the place of occurrence, the witness has
stated that in all sides of the place of occurrence there are
road and quarters and in the north west corner there is a
shopping centre.
116. P.W. 12 Baleshwar Sahu is the sub-inspector of police
and the investigating officer of the case. The I.O has stated in
his examination in chief that he was posted as ASI of police
in Bokaro Steel City police station on 21.05.10 when B.S.
- 54 -
City P.S. Case No. 182/10 was lodged by the officer-in-charge
of police station on the written report of Rajesh Prasad and
he was given the charge of investigation of the case.
117. After getting charge of investigation, this witness had
recorded the statement of informant Rajesh Prasad and
investigated the place of occurrence and from the place of
occurrence, the residence of informant and the place where
the kidnapped boy goes to attend tuition class are at the
same distance of about 200 metres. The informant has stated
that he has prepared a map of the place of occurrence which
is mentioned in para 4 of the case diary. During the
investigation he recorded the statements of Jyoti Devi,
Abhishek Kumar, Anu Kujur @ Anu, Vikash Kumar Singh,
Anwar Ahamad and Anil Gupta. He informed the mobile no.
8873577537 of the informant on which the ransom was
demanded by mobile no. 9771169356 to the technical cell of
Superintendent of Police and requested to inform the location
of the mobile immediately. During the investigation he also
raided the house of the accused persons Santosh Kumar
Singh, Nitish Vatsh, Om Lal Dixit @ Sakun and Santosh
Paswan but they were found absconding.
118. He came to know from the technical cell of the office of
Superintendent of Police, that the location of Mobile no.
9771169356 was at Salampur and Denduwa in West Benal
and he was directed vide memo no. 3099 confidential
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21.05.10 of police office to go out of state with the team
constituted by the Superintendent of Police on which the
permission was also granted by DIG of the area. In the team
constituted by Superintendent of Police, police Deepak
Kumar, police Khuswant Singh, police Vikram, police Manoj
Kumar Sharma and sub-inspector Suresh Prasad were the
members and he went with the team to Salampur via
Dhanbad and Maithan and also went to Denduwa market
after obtaining the location of the mobile from time to time.
119. In the meantime another police team was also
constituted by the Superintendent of Police headed by
inspector/officer-in-charge of Bokaro Steel City police station,
D.K. Gupta, inspector Ashok Kumar of Chas police station,
S.I Basudeo Sah, ASI Ashok Kumar Singh,C.D. Singh, police
Balendra Kumar, driver Kailash Prasad, police Harendra
pathak and Niranjan Prasad. The team was directed to raid
as per the direction of technical cell.
120. After sometime the information was received from the
technical cell that the location of mobile no. 9771169356 is in
Maithan area and then he went towards Maithan and gave
information to other team and inquired Amarkunda village.
After sometime information was given by the technical cell
that the kidnappers have directed the informant to come with
the ransom money at Dhanbad railway station and has
threatened to kill Rahul if they informed the matter to the
- 56 -
police. He also received information on phone that the
kidnappers have sent SMS to the informant threatening to
kill Rahul if he invloves the police. Again, he received the
information from technical cell that the kidnappers have
called the informant with the money at Hirapur Shopping
complex and this information was conveyed to second team
which went there and this witness was directed to camp at
Govindpur. After that the accused persons changing the place
called the informant at Nirsa and Niyamatpur. They were
always telling that he has come with the police.
121. On 23.05.2010 it was informed to this witness that the
kidnappers have called with the money at Asansole station.
In the meantime the technical cell informed him that the
mobile no. 9771169356 was registered in the name of
Santosh Kumar Singh, S/O. R.K. Singh of B.S.City, Sector-II,
Qrt. No. 135 and other mobile no. 9798736767 was
registered in the name of Santosh Kumar Sector-III/B, Qrt.
No. 334, P.S. B.S.City and mobile no. 9308344144 was in the
name of Ekram Ansari, resident of 158, Colidih, Katras. The
team in charge Dinesh Kumar Gupta proceeded with his
team towards Asansole and other team was directed to collect
information at Niyamatpur and Lachchipur.
122. Constable Balendra Kumar Singh was deputed with the
informant with mobile no. 9973379521 to remain in contact
with the kidnappers. Again, the SMS was sent by the
- 57 -
kidnappers that if he did not pay money till 7 pm they will kill
Rahul at 9 pm and again said to call him at about 6 pm. The
information of SMS received was also given to both the teams.
Again, accused persons were informed through SMS to follow
their directions.
123. During the investigation the I.O further came to know
that the criminals have directed the informant to come alone
towards Barakar from Kulti station and the team in- charge
directed all the members to remain separate to each other.
The I.O then received the information that the ransom money
was paid by the informant to the kidnappers and they have
said to send the kidnapped boy to Asansole railway station.
The I.O further came to know that the kidnapped boy reached
on the Asansole railway station by Tempo no. WB 37B-4943
driven by Birendra Prasad and after sometime Rahul reached
there by tempo. After that the kidnapped boy and the
informant were taken to Niyamatpur police station and with
the help of Niyamatpur police the house of Ramakolen was
raided from where Tamanna @ Tanu, Santosh Kumar Singh
and one other boy Nitish Vatsh were arrested and money paid
as ransom kept in a bag was also recovered and the seizure
list was prepared on which witnesses Birendra Prasad, Md.
Kaisar and accused persons Santosh Kumar and Nitish Vatsh
put their signatures and Tanu @ Tamanna put her thumb
impression and Sri Partho Singh officer-in-charge of
- 58 -
Niyamatpur police station also put his signature. The seizure
list is marked Ext.5 on his identification.
124. Further the I.O has stated in examination-in-chief that
he recorded the statement of the kidnapped boy and arrested
accused persons Santosh Kumar Singh, Nitish Vatsh,
Tamanna @ Tanu and also recorded their statements.
Accused Santosh Kumar Singh said that a pistol which he
used to threaten Rahul is kept in the car used in kidnapping
which is in the garage of Nitish Vatsh. On the basis of his
statement the police raided the place and seized the same.
The I.O has stated that he has recorded the confessional
statement of Santosh Kumar Singh, Nitish Vatsh and Tanu @
Tamanna who all have put their signatures and thumb
impression accordingly on each page of the statement at
Niyamatpur. The confessional statement of Santosh Kumar
Singh and Nitish Vatsh were marked Ext. 6 and 6/1 on his
identification.
125. Further the I.O has stated that thereafter they returned
to Bokaro with the recovered boy and on the identification of
accused persons they arrested Om Nath Dixit @ Sakun and
also recorded his confessional statement who also put his
signature on the confessional statement which is marked Ext.
6/2 on the identification of this witness. On the basis of
confessional statement of accused persons Santosh Kumar
Singh, Sakun Dixit and Nitish Vatsh the I.O recovered black
- 59 -
coloured maruti Alto car registration no. JH09C-876 from the
garage of Nitish Vatsh situated adjacent to Sudha dairy booth
in Sector-II shopping centre. He also recovered a pistol from
the dikky of the car and prepared seizure list which was
prepared in carbon copies and was signed by the witnesses.
The I.O identified his writing and signature along-with the
signatures of the witnesses on seizure list which was marked
Ext.7 on his identification. The I.O recorded the statement of
Anwar Ahmad and Anil Gupta, the witnesses of the seizure
list.
126. During the search of Santosh Kumar Singh, a mobile set
having BSNL SIM no. 9470585560 and the EMI no.
910041036428367 and 910041036428384 was recovered
from his possession for which the I.O also prepared the
seizure list and seized the mobile. During the investigation
the I.O recorded the statements of S.I Basudeo Sah, inspector
cum officer-in-charge, Bokaro Steel City police station, D.K.
Gupta, inspector cum officer-in-charge of Chas police station,
Ashok Kumar, police 173 Balendra Kumar, Police 226
Sukhwant Singh, police 211 Vikram, police 391 Manoj
Kumar Sharma, S.I Deepak Kumar, S.I Suresh Prasad, police
driver Kailash Prasad, police 462 Harendra pathak and police
933 Niranjan Ram.
127. He produced the accused persons before the court and
requested for their T.I. Parade and also requested to the court
- 60 -
to record the statement of kidnapped victim boy u/s. 164
Cr.P.C which was recorded by the Judicial Magistrate. The
I.O filed a request letter before the Superintendent of Police
for call detail report of the mobiles used by the criminals.
128. The accused Santosh Paswan who has surrendered
before the court was taken by the I.O on police remand.
Santosh Kumar said that SIM no. 9771169356 was in the
name of Santosh Kumar and was used by him. Santosh
Paswan told his mobile no. 9798736767. This witness also
told that Sakun used mobile no. 9308344144, Tamanna was
using mobile no. 9547258836 and Nitish was having mobile
no. 8002812311 while accused Santosh Paswan was using
mobile no. 08986618330. During the investigation the
identification parade of the ransom money recovered was
conducted by B.D.O, Chas. The I.O inquired into the criminal
history of Santosh Pawan and found that he was also
accused of B.S.City P.S. Case no. 181/03, u/s. 25(1-b)a
26/35 Arms Act in which the charge-sheet has been
submitted. The I.O obtained the call details report of the
mobile numbers and found that mobile no. 9771169356 was
registered in the name of Santosh Kumar Singh son of R.K.
Singh, mobile no. 9798736767 was in the name of Santosh
Kumar and 9308344144 was in the name of Md. Ekram
Ansari. From CDR the I.O came to know that three mobile
nos. 910041036428384, 910041036428367 and
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910041036428370 was used in the crime in which the SIM
No. 9771169356 was used which was in the name of Santosh
Kumar Singh. The I.O has stated that he has mentioned the
CDR report in para 178 of the case diary. By this mobile
number the SMS was sent to the informant on 25.05.10 and
it was used on other dates too.
129. Further the I.O has stated that he also recorded the
statements of police 38 Rakesh Kumar and Rajesh Prasad
and obtained an another report from S.P. Office through
which it was reported that the arrested accused persons and
their families and informant and his family members used
the mobiles during that period as followed- (i) Santosh Kumar
son of Radha Kisun Singh, mobile no. 9771169356, mobile
no. 9470585560 and mobile no. 8092359985, (ii) Om Nath
Dixit @ Sakun son of Ravi Kishore Dixit, Sector-II/A, Qrt. No.
3-68, mobile no. 9808344144, mobile no. 9835396466 and
mobile no. 9708677141, (iii) Nitish Vatsh son of Sanjay
Vatsh, Sector-II/A, Qrt. No. 3-14, mobile no. 08986618330
and 8002812399, (iv) Tamanna @ Tanu daughter of Haidar
Pathan resident of Bartala, P.S. Bartala, Kolkatta at present
Lachchipur, Niyamatpur was having mobile no. 9547258836
and 9547258832 while no. (v) informant Rajesh Prasad and
family used mobile no. 9835753890, mobile no. 8873577537,
mobile no. 9835347472, mobile no. 9534236969 while police
173 Balendra Kumar was using mobile no. 9973379521 and
- 62 -
9835347969 and accused Santosh Paswan was having
mobile no. 9798736767. The I.O submitted charge-sheet
against Sanotsh Kumar Singh, Nitish Vatsh, Om Nath Dixit @
Sakun Dixit, Santosh Paswan and Tamanna @ Tanu. The I.O
also identified the seizure list through which the mobile of
accused Santosh Kumar Singh was seized which is marked
Ext. 8 on his identification.
130. The I.O also identified the writing of formal FIR and
signature of officer-in-charge of police station over it which is
marked Ext. 9 on his identification and has also identified the
total call details reports in 12 sheets which he had obtained
from the Superintendent of Police, Bokaro and this call detail
report is marked Ext. 10 on his identification. I.O also
identified the present accused persons and claimed to identify
the rest who were represented through their counsel. During
cross-examination on behalf of accused Tamanna the I.O told
that she was living on rent in the house of Ramakolen but he
has not verified this fact from the concerned police station.
He has also not written the boundary of the place in the case
diary from where the accused persons were arrested. Further
during cross-examination, he has stated that except the oral
statement of Ramakolen and the officer-in-charge of local
police station there is no other ground of the identification of
the house. He has stated during cross-examination that there
- 63 -
was no tape or rope to tie the boy in the room was found,
where he was kept by the accused persons.
131. During cross-examination on behalf of Santosh Paswan
he has stated that the statement of the kidnapped boy
recorded u/s. 164 of Cr.P.C was copied by him in the case
diary same to same and he has also recorded the statement
of the father of the kidnapped boy in para 181 of the case
diary, but father of the boy has not stated in his statement
that Santosh Paswan also rode on the vehicle at Dhanbad.
The I.O has stated that similarly kidnapped boy Subham
Choudhary @ Rahul has also not named Santosh Paswan in
his statement given before the police. He has further stated
that the mother of kidnapped boy has also not told in her
statement that Santosh Paswan rode on vehicle at Dhanbad
with other accused persons. The I.O has denied the
suggestion that he has wrongly written the confessional
statement of Santosh Paswan and forcefully took his
signature over it and falsely implicated him in this case. The
I.O has also stated that Santosh Paswan has not talked with
any accused or the victim by his mobile no. 9798736767 as
per the call detail report received by him.
132. During cross-examination on behalf of Santosh Kumar
Singh the witness has stated that he has mentioned the time
of the recovery of boy in para 63 of case diary but has not
- 64 -
mentioned the time of taking the accused persons and victim
to Niyamatpur police station.
133. During cross-examination on behalf of rest accused
persons the witness has stated that he did not try to search
the unknown lady who has told about the taking of
kidnapped boy by car as told by her mother. The witness has
also stated that he has mentioned in the case diary that the
informant was carrying ransom money separately.
134. P.W. 13 Manish Kumar was Block Development Officer
in Chas block at the time of occurrence and has conducted
identification parade of the bundle of the notes recovered by
the police. During examination in chief this witness has
stated that on the direction of the court he conducted the T.I.
Parade of material exhibit which is bundle of notes. Witness
Rajesh Prasad came present before him who has identified
the notes. During the identification in the ratio of 1:9 the
similar notes were mixed with the referred notes among
which the witness identified the same bundle which was
recovered by the police. He prepared the identification chart
and the witnesses Bipin Bihari Singh and Badsah Khan also
put their signatures. The identification Chart is marked Ext.
11 on his identification.
135. During cross-examination the witness stated that the
money was arranged by the officer-in-charge of the police
- 65 -
station and the notes were not separately numbered. The
witness identified the notes which all were signed by him.
136. P.W. 14 Srish Dutta Tripathi is the Judicial Magistrate,
1st Class posted at Bokaro and has conducted the T.I. Parade
of accused Santosh Paswan on 11.06.10 on the request of
Chief Judicial Magistrate, Bokaro. During examination in
chief the witness has stated that the victim boy identified the
accused and said that he was also sitting with other accused
persons in the car by which he was kidnapped.
137. The witness has stated that the victim boy was aged
about 11 years and as such this witness has tested the
intelligence (I.Q.) of victim boy and permitted him to appear
in the identification parade. The witness prepared the T.I.
Parade chart which is signed by him and also by victim boy
Shubham Choudhary @ Rahul. On his identification the
identification chart is marked Ext. 12.
138. P.W. 15 Asif Ekbal who was Judicial Magistrate, 1st
Class posted at Bokaro at the time of occurrence who had
recorded the statement of the kidnapped boy Shubham
Choudhary @ Rahul u/s. 164 Cr.P.C on 29.05.2010. This
witness has stated in his examination in chief that on the
direction of the C.J.M he recorded the statement of Shubham
Choudhary u/s. 164 Cr.P.C in B.S.City P.S. Case no. 182/10.
The witness identified the statement recorded by him which
is marked as Ext. 3 on his identification. This witness has
- 66 -
also conducted identification parade of accused persons
Santosh Kumar Singh, Nitish Vatsh, Om Nath Dixit @ Sakun
and Tamanna @ Tanu. Witnesses Rahul Kumar @ Shubham
Choudhary and Rajesh Prasad had identified the accused
persons. Witness Rajesh Prasad identified the accused
persons Santosh Kumar, Nitish Vatsh and lady accused
Tamanna @ Tanu while Rahul Kumar @ Shubham
Choudhary identified all the four accused persons. He
prepared the identification charts which are marked Ext. 13
and 13/1 on his identification.
139. During the cross-examination on behalf of Santosh
Paswan the learned Magistrate has stated that the victim boy
Rahul has not named Santosh Paswan during his statement
given u/s. 164 Cr.P.C. He has named only Santosh. Nothing
more important has been asked on behalf of the other
accused persons.
140. This Court having discussed the testimony of
prosecution witnesses is now proceeding to consider the
grounds, basis upon which the impugned judgment of
conviction and order of sentence is said to have been suffered
from infirmity.
141. Further, we also deem it appropriate to answer the
point for consideration in this appeal to whether the facts, in
this case, attract the offence under Section 364-A IPC and if
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the answer is in the negative, would it be just and proper to
modify the conviction to a sentence under Section 363 IPC.
142. To put the matter in perspective, the provisions of
Section 361 read with Sections 362, 363, 364 and 364-A IPC
ought to be compared. The said provisions read as under:
"Section 361. Kidnapping from lawful guardianship. --
Whoever takes or entices any minor under sixteen years of age if
a male, or under eighteen years of age if a female, or any person
of unsound mind, out of the keeping of the lawful guardian of
such minor or person of unsound mind, without the consent of
such guardian, is said to kidnap such minor or person from
lawful guardianship.
Explanation. --The words "lawful guardian" in this section
includes any person lawfully entrusted with the care or custody
of such minor or other person.
Exception. --This section does not extend to the act of any
person who in good faith believes himself to be the father of an
illegitimate child, or who in good faith believes himself to be
entitled to the lawful custody of such child, unless such act is
committed for an immoral or unlawful purpose.
***
Section 362. Abduction- Whoever by force compels, or by
any deceitful means induces, any person to go from any place, is
said to abduct that person.
Section 363. Punishment for kidnapping. --Whoever
kidnaps any person from India or from lawful guardianship,
shall be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be liable
to fine.
Section 364. Kidnapping or abducting in order to
murder. - Whoever kidnaps or abducts any person in order that
such person may be murdered or may be so disposed of as to be
put in danger of being murdered, shall be punished with
imprisonment for life or rigorous imprisonment for a term which
may extend to ten years, and shall also be liable to fine.
Section 364-A. Kidnapping for ransom, etc.--Whoever
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kidnaps or abducts any person or keeps a person in detention
after such kidnapping or abduction, and 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 causes hurt or death to such person in order to compel
the Government or any foreign State or international inter-
governmental organisation or any other person to do or abstain
from doing any act or to pay a ransom, shall be punishable with
death, or imprisonment for life, and shall also be liable to fine."
143. Section 361 of Indian Penal Code deals with
―Kidnapping from lawful guardianship‖ wherein it is
stipulated that Whoever takes or entices, any minor male
under sixteen years of age or female under eighteen years
of age, or any person of unsound mind, out of the keeping
of the lawful guardian of such minor or person of unsound
mind, without the consent of such guardian, is said to
kidnap such minor or person from lawful guardianship.
―lawful guardian‖ in this section means any person who
lawfully entrusted with the care or custody of such minor
or other person.
144. Abduction' is defined under Section 362 of the IPC
wherein it is stipulated that if anyone by force compels, or
by any deceitful means induces, any person to go from any
place, is said to abduct that person. Thus, the essential
ingredients to constitute the offence of abduction is use of
force to compel any person or induces any person by
deceitful means to move him from one place to another
place.
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145. While abduction simpliciter may not technically be an
offence under the IPC, it becomes a punishable offence
when it is combined with another act. For example,
abduction in order to commit murder is an offence under
Section 364 IPC. So is abduction an offence if it is done
with an intent to secretly or wrongfully confine a person
(Section 365, IPC), or when it is done to compel a woman
for marriage etc. (Section 366, IPC).
146. We note that Section 363 IPC punishes the act of
kidnapping and Section 364 thereof punishes the offence
of kidnapping or abduction of a person in order to murder
him. Section 364A is an offence where kidnapping or
abduction is made and a person is put to death or hurt; or
a person is threatened with death or actually murdered, on
demand of ransom.
147. Since, in the instant case we are concern with the
alleged offence under Section 364A IPC, hence at this
juncture it will be profitable to discuss the core and
applicability of section 364 A of the IPC at length.
148. Section 364A of the IPC was inserted in the Penal Code,
1860 by an Act of Parliament (Act No. 42 of 1993 with
effect from 22nd May, 1993). The Law Commission of India
in its 42nd Report in 1971 had recommended insertion of
Section 364A in IPC, though it was ultimately incorporated
in the year 1993.
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149. It is pertinent to mention here that the Hon'ble Apex
Court while referring the importance of section 364A of IPC in
the case of Vikram Singh v. Union of India, (2015) 9 SCC
502 has observed as under:
"53. Applying the above to the case at hand, we find that
the need to bring in Section 364-A IPC arose initially
because of the increasing incidence of kidnapping and
abduction for ransom. This is evident from the
recommendations made by the Law Commission to which
we have made reference in the earlier part of this
judgment. While those recommendations were pending
with the Government, the spectre of terrorism started
raising its head threatening not only the security and
safety of the citizens but the very sovereignty and integrity
of the country, calling for adequate measures to curb what
has the potential of destabilising any country. With
terrorism assuming international dimensions, the need to
further amend the law arose, resulting in the amendment
to Section 364-A IPC, in the year 1994. The gradual growth
of the challenges posed by kidnapping and abductions for
ransom, not only by ordinary criminals for monetary gain
or as an organised activity for economic gains but by
terrorist organisations is what necessitated the
incorporation of Section 364-A IPC and a stringent
punishment for those indulging in such activities."
150. Thus, it is clear that Section 364A IPC does not merely
cover acts of terrorism against the Government or Foreign
State but it also covers cases where the demand of ransom
is made not as a part of a terrorist act but for monetary
gains for a private individual.
151. To attract section 364-A of the Penal Code, 1860, a
person has to be kept in detention and there should be
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threat to cause death or hurt to such person, or by the
conduct of the kidnapper there should be reasonable
apprehension that kidnapped person may be put to death
or hurt in order to compel the Government or any person
to do or abstain from any doing any act or to pay ransom.
152. The first essential condition as incorporated in Section
364-A is ‗whoever kidnaps or abducts any person or keeps
a person in detention after such kidnapping or abduction'.
The second condition begins with conjunction ―and‖.
153. The second condition has also two parts i.e. (a)
threatens to cause death or hurt to such person or (b) by
his conduct gives rise to a reasonable apprehension that
such person may be put to death or hurt. Either part of
above condition, if fulfilled, shall fulfil the second condition
for offence.
154. The third condition begins with the word ―or‖ i.e. or
causes hurt or death to such person in order to compel the
Government or any foreign State or international inter-
governmental organisation or any other person to do or
abstain from doing any act or to pay a ransom.
155. Thus, for covering an offence under Section 364-A,
apart from fulfilment of first condition, the second
condition i.e. ‗and threatens to cause death or hurt to such
person' also needs to be proved in case the case is not
covered by subsequent clauses joined by ―or‖. The word
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―and‖ is used as conjunction. The use of word ―or‖ is
clearly distinctive and both the words have been used for
different purpose and object.
156. After noticing the statutory provision of Section 364-A
we conclude that the essential ingredients to convict an
accused under Section 364-A which are required to be
proved by the prosecution are as follows:
(i) Kidnapping or abduction of any person or keeping
a person in detention after such kidnapping or
abduction; and
(ii) 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;
(iii) causes hurt or death to such person in order to
compel the Government or any foreign State or
any Governmental organisation or any other
person to do or abstain from doing any act or to
pay a ransom.
157. Thus, after establishing first condition, one more
condition has to be fulfilled since after first condition, word
used is ―and‖. Thus, in addition to first condition either
Condition (ii) or (iii) has to be proved, failing which
conviction under Section 364-A cannot be sustained.
158. Before adverting in to the facts of the instant case and
appraising the judgments impugned, we deem it
appropriate to refer some judicial pronouncement also as
rendered by the Hon'ble Apex Court on the issue of
applicability of section 364 A of IPC.
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159. The Hon'ble Apex Court in the case of Lohit
Kaushal v. State of Haryana (2009) 17 SCC 106, has
observed as under :
―15. ... It is true that kidnapping as understood under
Section 364-AIPC is a truly reprehensible crime and when
a helpless child is kidnapped for ransom and that too by
close relatives, the incident becomes all the more
unacceptable. The very gravity of the crime and the
abhorrence which it creates in the mind of the court are,
however, factors which also tend to militate against the
fair trial of an accused in such cases. A court must,
therefore, guard against the possibility of being influenced
in its judgments by sentiment rather than by objectivity
and judicial considerations while evaluating the evidence.‖
160. In Anil v. Admn. of Daman & Diu, Daman reported
in (2006) 13 SCC 36, the pertinent observations were
made by the Hon'ble Apex Court as regards the ingredients
for commission of offence under Sections 364 and 364-A.
The relevant passages which can be culled out from the
said judgment of the Hon'ble Supreme Court are as under :
―55. The ingredients for commission of offence under Sections
364 and 364-A are different. Whereas the intention to kidnap
in order that he may be murdered or may be so disposed of
as to be put in danger as murder satisfies the requirements
of Section 364 of the Penal Code, for obtaining a conviction
for commission of an offence under Section 364-A thereof it is
necessary to prove that not only such kidnapping or
abetment has taken place but thereafter the accused
threatened 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 causes hurt or death
to such person in order to compel the Government or any
foreign State or international inter-governmental organisation
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or any other person to do or abstain from doing any act or to
pay a ransom.‖
161. In Vishwanath Gupta v. State of Uttaranchal
reported in (2007) 11 SCC 633, it was observed by the
Hon'ble Apex Court as under:
―8. According to Section 364-A, whoever kidnaps or abducts any
person and keeps him in detention and threatens to cause
death or hurt to such person and by his conduct gives rise to a
reasonable apprehension that such person may be put to
death or hurt, and claims a ransom and if death is caused
then in that case the accused can be punished with death or
imprisonment for life and also liable to pay fine.
9. The important ingredient of Section 364-A is the abduction or
kidnapping, as the case may be. Thereafter, a threat to the
kidnapped/abducted that if the demand for ransom is not met
then the victim is likely to be put to death and in the event,
death is caused, the offence of Section 364-A is complete.
There are three stages in this section, one is the kidnapping or
abduction, second is threat of death coupled with the demand
of money and lastly when the demand is not met, then
causing death. If the three ingredients are available, that will
constitute the offence under Section 364-A of the Penal Code.
Any of the three ingredients can take place at one place or at
different places."
162. In the judgment rendered in the case of Vikram
Singh v. Union of India (supra), it has been held by Hon'ble
Apex Court as under:
"25. ... Section 364-AIPC has three distinct components viz.
(i) the person concerned kidnaps or abducts or keeps the
victim in detention after kidnapping or abduction; (ii)
threatens to cause death or hurt or causes apprehension
of death or hurt or actually hurts or causes death; and
(iii) the kidnapping, abduction or detention and the threats
of death or hurt, apprehension for such death or hurt or
actual death or hurt is caused to coerce the person
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concerned or someone else to do something or to forbear
from doing something or to pay ransom. These ingredients
are, in our opinion, distinctly different from the offence of
extortion under Section 383 IPC. The deficiency in the
existing legal framework was noticed by the Law
Commission and a separate provision in the form of
Section 364-AIPC proposed for incorporation to cover the
ransom situations embodying the ingredients mentioned
above."
163. Thus, the necessary ingredients which the prosecution
must prove, beyond a reasonable doubt, before the Court
are not only an act of kidnapping or abduction but
thereafter the demand of ransom, coupled with the threat
to life of a person who has been kidnapped or abducted,
must be there. Further reference in this regard may be
taken from the judgment rendered by the Hon'ble Apex
Court in the case of Ravi Dhingra v. State of
Haryana, (2023) 6 SCC 76.
164. In the backdrop of the aforesaid legal ratio and logical
deduction, now we shall consider the applicability of the
above ratio to the fact of the instant case and deal with the
appellants' argument as mentioned above.
165. We note that the learned trial court has placed reliance
on the testimony of prosecution witnesses particularly
PW.9 victim boy, PW.11 father of the victim and PW.12
Investigating Officer to prove the element of ―threat to
cause death or hurt‖, or to determine whether the
appellants' conduct gives rise to a reasonable
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apprehension that such person may be put to death or
hurt.
166. From perusal of the testimony of the witnesses it is
evident that all the witnesses have deposed that the victim
boy Rahul @ Shubham Choudhary was kidnapped by the
accused persons for ransom on 21.05.2010 while he was
returning after attending the tuition class. He was taken by
the miscreants to Dhanbad and thereafter to Maithan and
was kept at Asansole from where he was recovered on
24.05.2010.
167. When the informant (father of the victim boy) came to
know about the kidnapping of his son, he called his two
friends Anil Kumar Gupta and Anwar Ahamad who were
continuously present with him till the recovery of his son,
have also been examined by the prosecution. Elder brother of
the victim who was attending the phone calls of the accused
persons on the mobile is also examined by the prosecution.
168. After the lodging of the FIR the charge of the
investigation of the case was handed over to the S.I
Baleshwar Sahu by the officer-in-charge of Bokaro Steel City
police station who on the basis of the tower location of the
mobile by which the accused persons were demanding
ransom went towards Maithan, Distt. Dhanbad and started
searching the boy.
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169. For the recovery of kidnapped boy two teams were
constituted by the Superintendent of Police, Bokaro one team
guided the informant Rajesh Prasad, the father of the
kidnapped boy, to follow the direction of the accused persons
and to go on the place as directed by the accused persons
with the ransom money. The police team followed the
informant and placed a constable with him on his motorcycle
as his relative because the accused persons had directed him
to come on motorcycle alone.
170. In the meantime, a second team was constituted by the
Superintendent of Police headed by the officer-in-charge of
B.S. City police station Dinesh Kumar Gupta in which Ashok
Kumar Singh inspector cum officer-in-charge of Chas police
station, and other police personnel were added as members.
Both the police teams made their efforts and arrested the
accused persons.
171. It is evident that the members of the police teams
including the then officer-in- charge of B.S. City police station
who was heading the second team, inspector Ashok Kumar
Singh officer-in-charge of Chas police station inspector's
member of the team and other police personnel who were also
team members are examined by the prosecution including the
I.O. Constable Balendra Kumar who remained present
continuously with the informant attending the phone calls of
accused showing him as the relative of informant is also
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examined by the prosecution and all of them they have fully
substantiated the case of the prosecution.
172. It is evident that the teacher, where the kidnapped boy
has gone to take tuition, is examined by the prosecution as
P.W. 1. and she had supported the prosecution story and
remain consistent during her testimony and substantiated
the fact that mother of Rahul i.e. victim boy has told to her
that perhaps Santosh has kidnapped her son.
173. The father of the kidnapped boy namely Rajesh Prasad
and kidnapped boy Rahul @ Shubham and the mother of the
kidnapped boy Jyoti Devi are also examined by the
prosecution and all they have supported the case of the
prosecution.
174. On behalf of accused persons, it has been argued that
they have been implicated in this case due to inimical relation
with the informant prior to the case. It has also been argued
on behalf of the appellant that there are major contradictions
in the statements of the witnesses of the prosecution which
creates reasonable doubt into the involvement in the accused
persons in committing the offence.
175. In response to the contention of the appellants it is
pertinent to emphasize that it is settled legal proposition that
not every discrepancy or contradiction matters for assessing
the reliability and credibility of a witness, unless the
discrepancies and contradictions are so material that it
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destroys the substratum of the prosecution case. It is natural
for a witness to make minor improvements in the testimony
in relation to the occurrence, therefore such improvements
cannot be said to be of material importance for disbelieving
the testimony of the witnesses.
176. It is settled proposition of law that merely because there
is some contradiction and discrepancies in the testimonies,
the same cannot be alone to vitiate the prosecution story, as
has been held by the Hon'ble Apex Court in the case
of Mukesh Kumar v. State (NCT of Delhi), reported
in (2015) 17 SCC 694, wherein, at paragraph-8, it has been
held as under: --
"8. While the slight difference in the initial version of the
prosecution and the FIR version has been reasonably
explained by the cross-examination of PW 6, it is our
considered view that minor discrepancies, embellishments
and contradictions in the evidence of the eyewitnesses do
not destroy the essential fabric of the prosecution case,
the core of which remains unaffected. Even if we have to
assume that there are certain unnatural features in
the evidence of the eyewitnesses the same can be
reasonably explained on an accepted proposition of
law that different persons would react to the same
situation in different manner and there can be no
uniform or accepted code of conduct to judge the
correctness of the conduct of the prosecution
witnesses i.e. PWs 1 and 2. The relation between PWs 5
and 6 and PWs 1 and 2 and the deceased, in our
considered view, by itself, would not discredit the
testimony of the said witnesses. There is nothing in the
evidence of PWs 1 and 2 which makes their version
unworthy of acceptance and their testimony remains
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unshaken in the elaborate cross-examination
undertaken."
177. Likewise, the Hon'ble Apex Court in the case
of Shyamal Ghosh v. State of West Bengal, reported
in (2012) 7 SCC 646, wherein, at paragraphs-46 & 49, it
has been held as under: --
"46. Then, it was argued that there are certain
discrepancies and contradictions in the statement of the
prosecution witnesses inasmuch as these witnesses
have given different timing as to when they had seen
the scuffling and strangulation of the deceased by the
accused. It is true that there is some variation in the
timing given by PW 8, PW 17 and PW 19. Similarly,
there is some variation in the statement of PW 7, PW 9
and PW 11. Certain variations are also pointed out in
the statements of PW 2, PW 4 and PW 6 as to the motive
of the accused for commission of the crime.
Undoubtedly, some minor discrepancies or
variations are traceable in the statements of these
witnesses. But what the Court has to see is
whether these variations are material and affect
the case of the prosecution substantially. Every
variation may not be enough to adversely affect the case
of the prosecution.
49. It is a settled principle of law that the court should
examine the statement of a witness in its entirety and
read the said statement along with the statement of
other witnesses in order to arrive at a rational
conclusion. No statement of a witness can be read in
part and/or in isolation. We are unable to see any
material or serious contradiction in the statement of
these witnesses which may give any advantage to the
accused."
178. Now in the light of aforesaid legal ratio we are revisiting
the testimonies of the witnesses. From the testimony of P.W.
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9 Shubham Choudhary @ Rahul Kumar, the victim boy, it is
evident that he has all along supported the prosecution
version and has categorically deposed that when after
returning from tuition he reached near a Gumti, the accused
Santosh Kumar Singh and Nitish Vatsh were standing along
a black-coloured Alto car and they forcibly dragged him in
the car. He further deposed that Santosh Kumar Singh told
someone on telephone that he has lifted the victim boy. He
has specifically deposed in his examination-in-chief that they
took him to Dhanbad where two persons Santosh Paswan
and Sakun Dixit also rode on the car. From Dhanbad they
took him to Maithan where they took him out of car. From
there he was kept at Asansole from where he was recovered
by the police on 24.05.2010 and on his identification of the
place the police arrested the accused Nitish Vats and Santosh
Kumar Singh and further accused Tammana was arrested
from another room and also recovered the ransom amount
that was given by the informant (father of the abducted boy).
179. The informant has narrated the same prosecution story
as has been stated by the victim, namely, Shubham
Choudhary @ Rahul and has also corroborated the fact that
Santosh Kumar Singh, Nitish Vatsh, Tamanna @ Tanu were
arrested with the ransom money from the room where the
kidnapped boy was kept after being kidnapped. As such from
perusal of the testimonies of victim and informant it appears
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that there is no major contradictions in their statements on
the point of kidnapping of the victim and arrest of the
accused persons as well as seizure of the ransom money from
the place of occurrence.
180. It is equally important to note here that the statement of
the kidnapped boy Shubham Choudhary @ Rahul was
recorded by the learned Magistrate, 1st Class Sri. Srish Dutta
Tripathi who recorded the statement of the victim on
29.05.2010 and during the statement the victim has also
supported the prosecution case and has stated that he was
kidnapped by Nitish Vatsh and Santosh Kumar Singh and
was taken to Dhanbad, Maithan and thereafter to Assansole
and was kept in the residence of Tamanna and lastly was
sent to Asansole railway station by tempo. The victims has
also stated during his statement made before the Magistrate
u/s. 164 Cr.P.C that the auto driver was apprehended by
police and he showed the police the house where he was kept
from where the accused persons were arrested.
181. Thus, it is evident that the testimony of victim boy and
the informant is consistent with the statement of the victim
as recorded under section 164 Cr.P.C. Further the statement
of victim has also been substantiated by the testimonies of
the police personnel who had been examined as witnesses
particularly P.W.6 and 12.
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182. P.W. 2 Anwar Ahamad and P.W. 3 Anil Kumar Gupta
are the friends of the informant to whom he has informed
about the missing of his boy on telephone and they went to
his residence. P.W. 2 Anwar Ahamad has stated that he
along-with the Anil Kumar Gupta went to the quarter of
Rajesh Prasad and helped him in searching his boy here and
there and in their presence the phone call was received
through which he was informed by the kidnappers that Rahul
was kidnapped by them. This witness has also substantiated
the fact that the voice of Santosh Kumar Singh by which
ransom was demanded, was identified by the elder son of the
informant.
183. P.W.2 has also stated that he was all along with the
police team during the search of the boy and went to
Dhanbad, Govindpur More, Maithan, Nirsa and Asansole and
money was paid by Rajesh Kumar to the kidnappers alone.
Leaving them at railway station he has gone with money bag
to the kidnappers. The witness has also corroborated the fact
that the accused persons informed on telephone that they will
send the boy at Asansole railway station. The witness was
also present at Asansole railway station when the boy came
on an auto rickshaw and was recovered by the police and
auto driver was arrested. This witness has also corroborated
the fact that the police has gone with the kidnapped boy and
the auto driver and the informant Rajesh Prasad to
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Niyamatpur More and arrested two boys and a lady. The
witness has also corroborated the fact that the police has also
recovered an Alto car and a revolver from the dickey of car
from Sector-II/A on 24.05.10 in his presence and has
prepared seizure list.
184. Similarly, Anil Kumar Gupta P.W.3 has also supported
the fact that he was informed about the kidnapping of the
son of Rajesh Prasad and he had also gone with the police at
Asansole where the boy was recovered. This witness is also
the witness of the seizure of car and pistol from the garage
situated at Sector-II which was used in the commission of
crime, on the basis of confessional statement of the accused.
185. P.W. 6 Balendra Kumar is a constable who was directed
to remain present with the informant by the officers of the
police team constituted to recover the boy and he remained
all along with the informant till the recovery of his son and he
also talked with the kidnappers representing him as relative
of the informant.
186. P.W.6 is the witness of the occurrence who has stated
that during the conversation with the kidnappers, father of
the Rahul was nervous enough and then he started talking
with them. They called them to Dhanbad and then Govindpur
and after that Khalsa Hotel and lastly at Asaonsole railway
station. They directed them to board on a train and directed
to throw the bag of ransom money on Sitarampur railway
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station but they did not throw it and then they directed to
deboard from train at Kulti railway station. From there they
called father of the boy alone towards cabin of the station. On
returning he said that they have said to leave the boy at
Barakar and they went to Barakar but did not find the boy
there. Further they contacted the kidnappers who became
ready to send the victim boy at Asansole Railway station.
They reached Asansole railway station prior to the reaching of
the boy. The boy came on an auto rickshaw on railway
station and after receiving the boy and on the identification of
the auto driver and the victim boy, the police team raided the
place with the help of local police from where the kidnappers
were arrested.
187. P.W. 7 Sukhwant Singh and P.W. 8 Manoj Kumar
Sharma are the other constables and the members of the
police team who have also supported the case of the
prosecution and testified on the similar line as P.W.6.
188. P.W. 7 Sukhwant Singh was with the team of Baleshwar
Sahu who has stated that on the information received by the
technical cell he was deputed at Denduwa, Khalsa hotel
Govindpur, at Asansole railway station and Kulti and at
about 4 am of 24.05.10 Rahul was recovered. This witness
has also stated that with the help of police of Niyamatpur,
house of Ramakolen was raided from where accused/
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appellant Santosh Kumar Singh, Tamanna @ Tanu and
Nitish Vatsh were arrested.
189. Similarly, P.W. 8 Manoj Sharma has also stated that he
was also member of police team and during search reached
on Asansole station where at 4.20 am Rahul was recovered
and on his identification, house of Ramakolen at Lachchipur
Dhal was raided from where Santosh Kumar Singh, Tamanna
@ Tanu, Santosh Paswan and one other person was arrested.
190. Though there are contradictions in the statements of
P.W. 8 regarding the arrest of the accused persons but the
witness has supported the fact that the police team raided
the house of Ramakolen at Lachchipur Dhal from where the
accused persons were arrested.
191. Thus, it is evident that story of prosecution has fully
been substantiated by the testimony of P.W.6, 7 and 8.
192. P.W. 4 Jyoti Devi the mother of the victim boy has also
supported the prosecution case and has stated that when her
son did not return in time from the tuition she along-with his
husband searched him and her husband called her friends
who helped in searching the boy and remained present with
him.
193. The mother of the victim has also corroborated the fact
that the ransom was demanded by the accused persons on
mobile stating that Rahul was in their custody and the
kidnappers said to manage Rs. 8 lakh till 5 pm on the next
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day. After that her husband went to police station and lodged
FIR.
194. She has further stated that when her son returned to
the residence after rescued from the kidnappers, he told to
her that he was lifted by Santosh Bhaiya and Nitish Vatsh on
a black colour car and was taken to Dhanbad. This witness
has also stated that her son also told that at Dhanbad Sakun
Dixit and Santosh Paswan also rode in the car. The mother of
the victim boy has stated that before the recovery of his son
in the night of 22.05.10 in between 2.30 to 3 am the accused
persons have called her on mobile and had abused her on
which she has told them that her husband has gone with the
money.
195. As such this witness has fully supported the
prosecution story and she further specifically substantiated
that story of victim who had stated that he had been
kidnapped by accused Santosh Bhaiya and Nitish Vatsh.
196. Similarly, P.W. 5Abhishek Choudhary @ Rahul the
brother of the victim has also supported the prosecution case
and has stated that after his brother did not return the
residence from tuition in time, his parents and friends of his
father started searching him when an unknown lady said
that Rahul was taken by two boys in a black colour Maruti
car. The witness has also stated that at about 2.30 pm the
kidnappers called on his mobile and told that Rahul was in
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their custody. This mobile call was made from mobile no.
9771169356 and he recognized the voice of the caller who
was Santosh Kumar Singh known to him from his childhood.
At about 3.11 pm in the evening ransom was demanded,
through SMS and threatening was given to kill Rahul in case
they go to the police.
197. This witness has stated that he has also gone with the
police team to Asansole and in the morning of 24.05.10
Rahul reached at Asansole railway station by tempo and the
tempo driver and Rahul were taken to the police station and
he along-with his father and friends of his father also went
there. They were standing on the road and police came back
with Santosh Kumar Singh, Nitish Vatsh and lady along-with
the ransom money.
198. Thus, it is evident from the statements of the teacher
providing tuition to the kidnapped boy, friends of the
informant, constables of the police who were the members of
the raiding team and the mother and brother of the victim
boy that the victim has gone to attend the tuition class and
was lifted by the accused persons for ransom and was later
on recovered at Asansole railway station and on his
identification three accused persons namely Santosh Kumar
Singh Nitish Vatsh were arrested with the bag of ransom
money. Though there are some minor contradictions in the
statements of the witnesses but these are simple human
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errors and are not vital to disbelieve the prosecution story by
any corner.
199. Further Dinesh Kumar Gupta who is the inspector of
police and was posted as officer-in-charge of B.S. City police
station at the time of the occurrence has been examined as
P.W. 10 by the prosecution. He was the team leader of second
team of the police constituted by the Superintendent of Police
and the police team acted in the direction of this witness and
recovered the kidnapped boy and also arrested the accused
persons along-with the ransom money.
200. This witness has stated that the charge of investigation
was given by him to Baleshwar Sahu sub-inspector and with
the team of police he went towards Maithan area to recover
the boy as per the tower location of the mobile by which the
ransom was demanded. He placed one constable Balendra
Kumar of technical cell with the informant. He has deposed
that lastly, police personnel went to Niyamatpur police
station and with the help of Niyamatpur police and arrested
Santosh Kumar Singh, Nitish Vatsh and alleged wife of
Santosh Kumar Singh, Tamanna @ Tanu who was living on
rent in the house of one Smt. Ramakolen. The police team
also recovered Rs. 1,75,000/- kept in bag which was paid as
ransom. The accused persons confessed their involvement in
the offence and on the basis of their statement black coloured
Alto car and pistol kept in the garage of Nitish Vatsh at
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Sector-II, Bokaro Steel City was also recovered. The accused
persons in their confessional statement has taken the names
of Santosh Paswan and Sakun Dixit and stated about their
involvement in committing the alleged offence.
201. I.O Baleshwar Sahu sub-inspector of police who has
examined as P.W. 12 has given the details description of the
occurrence and investigation made by him and has also
prepared the map of the place from where the boy was
kidnapped. The I.O has also recorded the confessional
statement of the accused persons and on the basis of the
confessional statement of Santosh Kumar, Sakun Dixit and
Nitish Vatsh, he recovered the black colour Alto Car
registration no. JH09C-8676 and a country-made pistol kept
in its dickey from the garage of Nitish Kumar at Bokaro.
202. Thus, it is evident that on the basis of confessional
statement of the accused persons namely Santosh Kumar,
Sakun Dixit and Nitish Vatsh the vehicle and country-made
pistol which was used in the commission of alleged crime was
recovered and as such by virtue of section 27 of the Indian
Evidence Act the said part of confessional statement leading
to recovery is admissible as vital piece of evidence.
203. In the aforesaid context it is pertinent to mention here
that it is now well settled principle of law that the recovery
pursuant to the disclosure statement made by the accused
under section 27 of the Evidence Act is admissible in
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evidence. It is also settled that the Court must disregard the
inadmissible part of the statement and take note only that
part of his evidence, which distinctly relates to the discovery
of the articles pursuant to the disclosure statement made by
the accused. It is further settled proposition of law that
discovery of the fact in this connection includes the discovery
of an object found, the place from which it is produced and
the knowledge of the accused as to his existence.
204. Reference with respect to the aforesaid settled
proposition may be made to the judgments of the Hon'ble
Apex Court in the case of Earabhadrappa v. State of
Karnataka, AIR 1983 SC 446 wherein at paragraph 7 and 8
it has been observed as under:
"7. There is no controversy that the statement made by the
appellant Ex. P-35 is admissible under Section 27 of the
Evidence Act. Under Section 27 only so much of the information
as distinctly relates to the facts really thereby discovered is
admissible. The word "fact" means some concrete or material
fact to which the information directly relates. As explained by
Sir John Beaumont in Pulukuri Kotayya v. King-Emperor [(1947)
74 IA 65 : AIR 1947 PC 67 : 230 IC 135] :
"... it is fallacious to treat the "fact discovered" within the
section as equivalent to the object produced; the fact discovered
embraces the place from which the object is produced and the
knowledge of the accused as to this, and the information given
must relate distinctly to this fact."
8. For the applicability of Section 27 therefore two conditions
are prerequisite, namely (1) the information must be such as
has caused discovery of the fact; and (2) the information must
"relate distinctly" to the fact discovered. In the present case,
there was a suggestion during the trial that PW 26 had prior
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knowledge from other sources that the incriminating articles
were concealed at certain places and that the statement Ex. P-
35 was prepared after the recoveries had been made and
therefore there was no "fact discovered" within the meaning of
Section 27 of the Evidence Act. We need not dilate on the
question because there was no suggestion made to PW 26
during his cross-examination that he had known the places
where the incriminating articles were kept. That being so, the
statement made by the appellant Ex. P-35 is clearly admissible
in evidence."
205. Similarly in the case of Nisar Khan v. State of
Uttaranchal, 2006 (9) SCC 386 the Hon'ble Apex Court has
observed as under:
"6. Regarding the second contention that the recovery of arms
has not been proved by the prosecution has also no substance.
It is evidence on record that the accused were arrested on 17-
12-1999 and pursuant to a disclosure statement made by
them, the arms were recovered from the bank of Gaula river
where these had been hidden under the sand and covered by
the stones. All the arms were recovered as pointed out by each
accused hidden under the stones. The High Court fell in error in
holding that the recovery has not been proved as these were
recovered from a place which is frequented by the public. This
finding of the High Court is contrary to the evidence on record.
It is now well-settled principle of law that the recovery
pursuant to the disclosure statement made by the accused
under Section 27 of the Evidence Act is admissible in evidence.
In Dhananjoy Chatterjee v. State of W.B. [(1994) 2 SCC 220 :
1994 SCC (Cri) 358] it is held that the entire statement made
by an accused person before the police is inadmissible in
evidence being hit by Sections 25 and 26 but that part of his
statement which led to the discovery of the articles is clearly
admissible under Section 27 of the Act. It is also held that the
Court must disregard the inadmissible part of the statement
and take note only of that part of his statement which distinctly
relates to the discovery of the articles pursuant to the
disclosure statement made by the accused. It is further held
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that the discovery of the fact in this connection includes the
discovery of an object found, the place from which it is
produced and the knowledge of the accused as to its existence.
7. In Golakonda Venkateswara Rao v. State of A.P. [(2003) 9
SCC 277 : 2003 SCC (Cri) 1904] this Court reiterated the view
and held that the discovery statement of an accused leading to
recovery of crime articles from concealed place, even though the
discovery statement and the recovery memo did not bear the
accused's signature, the fact of recovery from the well and dug
out was from a place which was pointed out by the appellant
and, therefore, such discovery was voluntary. That the
recovery was in consequence to the information given was
fortified and confirmed by the discovery of the apparel worn
and skeletal remains of the deceased and, therefore, the
information and statement cannot be held to be false. In the
present case on the recovery memo the signatures of all the
accused have been obtained. In Praveen Kumar v. State of
Karnataka [(2003) 12 SCC 199 : 2004 SCC (Cri) Supp 357] the
same view has been reiterated."
206. As such the aforesaid aspects of recovery which was
made on the basis of the confessional statement of the
accused persons is indicative of the involvement of the said
accused persons in the alleged crime.
207. Further the I.O in his examination-in-chief has stated
that ransom was demanded by the kidnappers on the mobile
phone no. 8873577537 of the informant and the kidnappers
were using mobile no. 9771169356. He received the
information from the technical cell that mobile no.
9771169356 is registered in the name of Santosh Kumar
Singh and other mobile no. 9798736767 in the name of
Santosh Kumar and mobile no. 9308344144 is registered in
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the name of Ekram Ansari of Katras, Dhanbad. The technical
cell informed that Balendra Kumar Singh constable which
was deputed with the informant was using mobile no.
9773379521.
208. As per the informant and other witnesses ransom was
demanded through the mobile no. 9771169356 and from the
record it is evident that the said number was registered on
the name of accused/ appellant Santosh Kumar Singh.
209. Further it is evident from the record that the ransom
was demanded by making call on mobile no. 8873577537 of
the informant and on the mobile no. 9973379521 of the
police constable Balendra Kumar who was placed with the
informant to trace the accused persons. The informant has
given detail description of the mobile numbers by which
ransom was demanded and all the said mobile numbers were
registered in the name of the accused persons or their family
members which reveals that the accused was using mainly
mobile no. 9771169356 and sometimes mobile no.
9470585560 and 8098359985.
210. After perusal of the call detail report (CDR) it is clear
that on 21.05.2010 and 22.05.10, more than 50 times
accused Santosh Kumar Singh had sent SMS to the
informant on his mobile no. 8873577357. The informant has
also stated in his examination in chief that he was using
mobile no. 8873577357.
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211. The CDR also reveals that at about 15 messages were
sent by the accused by his mobile no. 9771169356 on the
mobile no. of police constable Balendra Kumar who was
placed with the informant. The battery of the mobile of
informant was discharged and he communicated this mobile
number to the accused. Similarly in the night of 24th May
also several calls were made and SMS were sent by the
accused on this mobile number and lastly calls were also
made by constable Balendra Kumar by his mobile no.
9973379521 on the mobile of the accused Santosh Kumar
Singh at about 3.23 am, 3.46 am and 4.13 am and again the
call was received by the police constable on his mobile no.
9973379521 called by the mobile no. 9771169356 of accused
Santosh Kumar Singh.
212. Thus it is evident from aforementioned preceding
paragraphs particularly 209 to 213 that the ransom was
demanded from the mobile of accused persons and as such
the testimony of witnesses related to demand of ransom by
the accused persons is fully established and this fact is
further fortified by the call detail record(CDR).
213. Further it is important to note here that Manish Kumar,
the then B.D.O of Chas block who conducted the T.I. Parade
of the recovered money on 12.06.10 has been examined as
P.W. 13 who has stated that in his presence the informant
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identified all the notes and these all notes were bearing the
initial signature of informant.
214. Md. Asif Ekbal, J.M. 1St Class, Bokaro is examined as
P.W. 15 who had also conducted the identification parade of
the accused persons Santosh Kumar Singh, Nitish Vatsh, Om
Nath Dixit @ Sakun Dixit and Tamanna @ Tanu in Sub-Jail,
Chas in which the witness's victim boy Rahul Kumar @
Shubham Choudhary and his father Rajesh Prasad had
participated as witness. Both the witnesses had identified all
the accused persons.
215. Thus, after taking the evidence in entirety it is evident
from the evidence of the I.O as well as the officer-in-charge of
the Bokaro Steel City police station who was heading the
team searching the kidnapped boy the entire prosecution
version has fully been substantiated without any
contradictions. The statements of the police officers are
corroborated by the statements of the witnesses and there is
no ground to create any doubt regarding the authenticity of
the evidence of the I.O and officer-in-charge of the police
station heading the team of police which recovered the victim
boy and arrested the three accused persons namely Santosh
Kumar Singh, Nitish Vatsh and Tamanna and also recovered
ransom money.
216. The statement of these police officers is fully
corroborated by the statements of the informant, other
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witnesses Anil Kumar Gupta and Anwar Ahamad and also by
the elder son of the informant and other police constables
who were the members of the police team deputed to recover
the kidnapped boy and arrest the accused persons.
217. Thus, it is also proved from the identification charts and
the identification report of the money and the statements of
the B.D.O as well as the Judicial officers that the money
recovered from the possession of the accused persons was
identified by the informant and all the accused persons who
were apprehended from the place of occurrence were also
identified by the victim boy as well as by the informant of the
case.
218. Further, the victim boy Shubham Choudhary @ Rahul
in his statement recorded u/s. 164 Cr.P.C which was
recorded by the Magistrate soon after his recovery from the
custody of the accused persons, he has also revealed entire
story of his kidnapping and has told the name of the accused
persons. Thus, the identification of the accused persons by
the victim and the informant as well as the identification of
the paid ransom money in presence of B.D.O and
identification of accused persons who were apprehended in
presence of the Judicial officer also prove the prosecution
case beyond any reasonable doubt.
219. In the aforesaid factual aspect, this Court deems it fit
and proper to again go across the penal provision as under
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Section 364A of the Indian Penal Code, which consists of
three parts i.e., (i).Kidnapping or abduction; (ii).threatening
for the purpose of ransom and (iii).in case of non-payment on
the part of ransom the consequence will be death of the
kidnapped or abducted person. That means that two are
mandatory conditions and if death is not there and only
threatening then also section will be attracted.
220. As we discussed in preceding paragraphs that to attract
section 364-A of the Penal Code, 1860, a person has to be
kept in detention and there should be threat to cause death
or hurt to such person, or by the conduct of the kidnapper
there should be reasonable apprehension that kidnapped
person may be put to death or hurt in order to compel the
Government or any person to do or abstain from any doing
any act or to pay ransom.
221. From perusal of the testimony of the witnesses it is
evident that all the witnesses univocally have deposed that
the victim boy Rahul @ Shubham Choudhary was kidnapped
on 21.05.2010 while he was returning after attending the
tuition class and it is further evident that there are no major
contradictions in their statements on the point of kidnapping
of the victim and arrest of the accused persons as well as
seizure of the ransom money from the place of occurrence.
The witnesses specifically PW.2 and 3 has also corroborated
the fact that the police have also recovered an Alto car and a
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revolver from the dickey of the said car which was used in
commission of the said crime, from Sector-II/A on 24.05.10
in their presence and has prepared seizure list.
222. P.W. 9 Shubham Choudhary @ Rahul Kumar, the victim
boy, has all along supported the prosecution version and has
categorically deposed that when after returning from tuition
and reached near a Gumti, the accused Santosh Kumar
Singh and Nitish Vatsh were standing along a black-coloured
Alto car and they forcibly dragged him in the car, thus the
offence of kidnapping was fully substantiated.
223. Further on his identification from the place of
occurrence, the accused Nitish Vats, Santosh Kumar Singh
and Tammana were arrested by the police team and the
ransom amount was also recovered which was given by the
informant (father of the abducted boy) to the kidnappers, as
such it is evident from the aforesaid fact that offence of
kidnapping was made by the said accused Nitish Vats,
Santosh Kumar Singh and Tammana and the victim boy has
been kept in detention by the aforesaid accused persons,
therefore the first and foremost requirement to constitute the
offence under section 364A has been established.
224. The second requirement to constitute the offence under
section 364A IPC is the conduct of the kidnapper by which
reasonable apprehension should be caused that kidnapped
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person may be put to death or hurt as such to compel any
person to pay ransom.
225. In the aforesaid context it is evident from the testimony
of the informant who has been examined as P.W.11 that the
kidnapper had made call on the mobile which was with his
elder son and said that they will lose Rahul i.e. victim, if the
matter is informed to the police. He has further deposed that
again call was received on the mobile of his elder son when
they were at police station and the caller said to arrange Rs. 8
lakh and again threatened that in case of not arranging the
money they will lose Rahul.
226. Further as per CDR and testimonies of other witnesses
particularly the investigating officer it appears that ransom
call was made by kidnapper through the mobile number
which is registered in the name of Santosh Kumar Singh and
it has also come on record that the ransom money which was
given by the informant was recovered from the possession of
accused persons when they were arrested by the police team,
as such the second requirement to constitute the offence
under section 364A IPC is also fulfilled because herein the
specific demand of ransom was made by the kidnappers/
accused persons to cause apprehension of death of the victim
boy in the mind of the informant i.e. father of the victim boy.
227. Further, it is pertinent to mention here that the
prosecution has alleged the offence under section 364A IPC
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coupled with the section 34 IPC. As such in this scenario this
court thinks fit before delving into the evidence on record on
point of common intention and addressing the rival
contentions in this regard as made by the parties, we wish to
reiterate the precise nature, purpose and scope of Section 34
Indian Penal Code, in order to find out that whether there
was any common intention among the accused persons to
facilitate the alleged crime.
228. To apply Section 34 IPC apart from the fact that there
should be two or more accused, two factors must be
established: (i) common intention and (ii) participation of the
accused in the commission of an offence. If a common
intention is proved but no overt act is attributed to the
individual accused, Section 34 will be attracted as essentially
it involves vicarious liability but if participation of the
accused in the crime is proved and a common intention is
absent, Section 34 cannot be invoked.
229. In every case, it is not possible to have direct evidence of
a common intention. The existence of a common intention
can be inferred from the attending circumstances of the case
and the conduct of the parties. Reference in this regard may
be taken from judgment as rendered by the Hon'ble Apex
Court in the case of Bengai Mandal v. State of Bihar,
reported in (2010) 2 SCC 91 wherein at paragraph 13 it has
been held as under:-
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"13. Thus, the position with regard to Section 34 IPC is crystal
clear. The existence of common intention is a question of fact. Since
intention is a state of mind, it is therefore very difficult, if not
impossible, to get or procure direct proof of common intention.
Therefore, courts, in most cases, have to infer the intention from the
act(s) or conduct of the accused or other relevant circumstances of
the case. However, an inference as to the common intention shall
not be readily drawn; the criminal liability can arise only when
such inference can be drawn with a certain degree of assurance."
230. Further the Hon'ble Apex Court in the case of Girija
Shankar v. State of U.P. (2004) 3 SCC 793], while bringing
out the purpose and nature of Section 34 IPC observed in
para 9, as follows:-
"9. Section 34 has been enacted on the principle of joint liability in
the doing of a criminal act. The section is only a rule of evidence
and does not create a substantive offence. The distinctive feature of
the section is the element of participation in action. The liability of
one person for an offence committed by another in the course of
criminal act perpetrated by several persons arises under Section 34
if such criminal act is done in furtherance of a common intention of
the persons who join in committing the crime. Direct proof of
common intention is seldom available and, therefore, such intention
can only be inferred from the circumstances appearing from the
proved facts of the case and the proved circumstances. In order to
bring home the charge of common intention, the prosecution has to
establish by evidence, whether direct or circumstantial, that there
was plan or meeting of minds of all the accused persons to commit
the offence for which they are charged with the aid of Section 34,
be it prearranged or on the spur of the moment; but it must
necessarily be before the commission of the crime. The true concept
of the section is that if two or more persons intentionally do an act
jointly, the position in law is just the same as if each of them has
done it individually by himself. As observed in Ashok
Kumar v. State of Punjab [(1977) 1 SCC 746] the existence of a
common intention amongst the participants in a crime is the
essential element for application of this section. It is not necessary
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that the acts of the several persons charged with commission of an
offence jointly must be the same or identically similar. The acts
may be different in character, but must have been actuated by one
and the same common intention in order to attract the provision."
231. Thus it is evident that the inference regarding
applicability of Section 34 of the IPC to be drawn from the
circumstances appearing from the proved facts of the case
and the proved circumstances. In order to bring home the
charge of common intention, the prosecution has to establish
by evidence, whether direct or circumstantial, that there was
plan or meeting of minds of all the accused persons to
commit the offence for which they are charged with the aid of
Section 34, be it prearranged or on the spur of the moment;
but it must necessarily be before the commission of the
crime. The criminal act actually committed would certainly be
one of the important factors to be taken into consideration
but should not be taken to be the sole factor.
232. It is further settled proposition of law that to rope in an
accused with the aid of section 34 IPC, it must be established
by cogent evidence that he shared common intention and at
the time when the final act was accomplished, he was there,
may be not at the actual spot.
233. In Surendra Chauhan v. State of M.P. reported in
(2000) 4 SCC 110 the Hon'ble Supreme Court has held that
under section 34 IPC a person must be physically present at
the actual commission of the crime for the purpose of
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facilitating or promoting the offence, the commission of which
is the aim of the joint criminal venture.
234. Further, the law on the applicability of
section 34 IPC was delineated in Shreekantiah Ramayya
Munipalli v. State of Bombay 1954 SCC OnLine SC 42
wherein the Hon'ble Supreme Court has observed as under:
"23..... The essence of the misdirection consists in his direction to
the jury that even though a person "may not be present when the
offence is actually committed" and even if he remains "behind the
screen" he can be convicted under section 34 provided it is proved
that the offence was committed in furtherance of the common
intention. This is wrong, for it is the essence of the section that the
person must be physically present at the actual commission of the
crime. He need not be present in the actual room; he can, for
instance, stand guard by a gate outside ready to warn his
companions about any approach of danger or wait in a car on a
nearby road ready to facilitate their escape, but he must be
physically present at the scene of the occurrence and must actually
participate in the commission of the offence in some way or other at
the time the crime is actually being committed...."
235. To apply the aforesaid legal ratio in the fact of the
present case this Court thinks fit to again advert in to the
evidences of the prosecution witnesses as available on the
record.
236. It is evident from the testimony of the informant, the
victim boy and other witnesses that the accused persons
namely Santosh Kumar Singh, Nitish Vatsh and Tamanna
were arrested from the place of occurrence with the bag of
ransom money, in their presence, as such the presence of
aforesaid accused persons at the place of occurrence is fully
established and as such there is no iota of doubt regarding
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the presence of said accused persons at the place of
occurrence. Thus, the role of aforesaid accused persons in
their individual capacity with the common intention to
facilitate the alleged crime under section 364 A IPC has fully
been substantiated by the testimonies of the witnesses.
237. Further it is evident from the statement of P.W.9 which
has fully been corroborated by the testimony of other witness
that he was kidnapped by the Santosh Kumar Singh and
Nitish Vatsh and both the aforesaid accused persons had
taken him at the residence of Tamanna in purpose of their
safe hide out and as such role of each accused persons may
be different but the element of common intention in fulfilling
the alleged crime is also there.
238. In view of the aforesaid discussion the contention of
learned counsel for the appellant that it is not a case of
Section 34 of the Indian Penal Code, is totally fallacious or
misplaced.
239. Further, the learned counsel in the Cr. Appeal (DB) No.
928 of 2016 for the appellant Nitish Vatsh has contended
that the circumstances in relation to which questions were
not put by trial court, while examining the appellants under
Section 313 of the CrPC ought not to have been taken into
account by the trial court while appreciating the evidence and
recording the finding and to buttress this limb of argument
the learned counsel has relied on the judgment rendered by
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the hon'ble Apex Court in the case of Raj Kumar @ Suman
vs. State (NCT of Delhi) (supra).
240. In the aforesaid context it is considered view of this
Court that there is no quarrel against the settled proposition
of law that questions which were not put by trial court, while
examining the appellants under Section 313 of
the CrPC ought not to have been taken into account by the
trial court.
241. But in the contrast, this is also settled proposition of
law that to invoke the aforesaid principle the appellant must
prove that any prejudice was caused to him, because of such
lapse as made the trial court.
242. In the instant case from perusal of the record it is
evident that since the prosecution's witnesses were examined
in presence of this appellant and he had enough opportunity
to cross-examine the prosecution's witnesses which he had
availed. Further even for sake of argument if it is presumed
that certain questions were not put by the trial court to this
appellant, the appellant has not been able to make out a case
that any prejudice was caused to him, because of such
failure, the submissions advanced on behalf of the appellant
as regards improper compliance of Section 313 of the CrPC is
fallacious and not tenable.
243. This Court, after going through the evidence, oral as
well as documentary available on record, as also the penal
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provision of offence under Section 364A of the Indian Penal
Code, finds that Shubham Choudhary @ Rahul was
kidnapped by the accused Santosh Kumar Singh and Nitish
Vatsh from Sector-II, Bokaro when he was returning from his
tuition. He was taken towards Dhanbad by the black
coloured Alto car no. JH09C-0876 which was being driven by
Nitish Vatsh. They demanded ransom on the mobile number
of informant and later on the mobile number of one police
personnel who was accompanying the informant as the
mobile of informant became discharged. The CDR clearly
shows that mobile registered in the name of Santosh Kumar
Singh was used for demanding ransom by making call and
sending SMS. Further oral evidence has been adduced that in
case of non-fulfilment of ransom the accused persons have
threatened to kill the kidnapped boy. The appellant, were
arrested from the house were the victim was kept who after
payment of ransom was released.
244. Therefore, on the basis of the oral as well as
documentary evidence available on record we are of the
considered view that the prosecution has successfully proved
the charge u/s 364A read with Section 34 IPC beyond all
reasonable doubts so far appellants, Santosh Singh @
Santosh Kumar Singh and Nitish Vatsh @ Nitin Vatsh are
concerned.
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245. So far, the involvement of accused Santosh Kumar
Paswan is concerned, it has been argued on behalf of the
accused person Santosh Paswan that neither he is named in
the FIR nor anything was recovered from his possession, he
was also not arrested with other accused persons from the
place where the victim boy was kept and his mobile phone
was also not used in committing the offence or demanding
the ransom but he has falsely been implicated in this case.
246. It has also been argued on his behalf that none of the
witnesses including the victim have named him during their
evidence and even in the statement u/s 164 Cr.P.C of the
victim recorded by the Magistrate the victim has not named
him. It has been argued on behalf of the accused Santosh
Kumar Paswan that he is innocent and has been falsely
implicated in this case by the police as he is known to the
police as an accused of Arms Act.
247. In the light of aforesaid contention, it is admitted fact
that this accused has not been arrested from the place of
occurrence rather he himself surrendered before the police.
Further it is also admitted position that this accused is not
named in the FIR and his complicity in the alleged crime is
transpired on the basis of confessional statement of other
accused persons namely Santosh Kumar Singh and Nitish
Vatsh and it is the settled position of law that confessional
statement of the one of the co-accused persons against the
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other accused person has no evidentiary value in the eye of
law.
248. It is also admitted fact that none of the witnesses has
named him as accused in the instant case except victim boy
who during his evidence has stated in his examination in
chief that in the car by which he was kidnapped two persons
also rode in the car whose names were Santosh Paswan and
Sakun Dixit but they went with them only to Maithan by car
and from there after de-boarding him with Santosh Singh
from the car they returned to Bokaro.
249. Further, the victim boy during his statement recorded
by the Judicial Magistrate u/s 164 Cr.P.C has also not
named the particular appellant/accused and it is admitted
fact that the victim boy has taken the name of the appellant
Santosh Paswan for the first time in his examination-in-chief.
250. It is pertinent to mention here that the I.O has also
stated during cross-examination that neither victim boy i.e.
Rahul @ Shubham Choudhary nor his father or mother has
named Santosh Paswan as an accused in their statement
given under section 161 Cr.P.C. before him. In this regard the
statement has been given by the Investigation Officer in para
108 to 112 of his cross-examination.
251. After his recovery the victim boy told the whole story of
his kidnapping to his mother who has been examined as
witness and she has stated that his son told her that two
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persons Sakun Dixit and Santosh Paswan rode in the car at
Dhanbad. But it is pertinent to note here that this witness
has not told this fact to the I.O.
252. It is also admitted fact that the victim boy has identified
the appellant Santosh Paswan on 11.06.2010. But during
the cross-examination on behalf of Santosh Kumar Paswan
the victim boy has stated in para 31 of his cross-examination
that before the identification parade accused Santosh Paswan
was shown to him by police in the police station at Bokaro
and he has gone to the jail to identify same Santosh Paswan.
Further in his cross-examination the victim has stated that
he identified the accused Santosh Paswan on the basis of the
identification of the police made in the police station.
253. The I.O has stated that Santosh Kumar Paswan was
having mobile no. 9798736767 but this mobile phone is not
used by this accused during the period from the kidnapping
till to the recovery of the kidnapped boy which is clear from
the call details report obtained by the police which is marked
as Ext. 10. But after going through the call detail report of
mobile No. 9798736767 of Santosh Paswan appears that the
location of the phone was at Dhanbad, Maithan, Raniganj in
W.B, Jharia and Mahuda on 21.05.2010 and he was either
calling someone or was on call the whole day and the location
of his mobile was traced to be also on G.T. Road.
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254. The only admissible evidence against this accused is
location of his mobile as per CDR wherein the location of his
mobile was traced on the G.T. Road, but except this evidence
no any cogent evidence has put forward by the prosecution
against the accused Santosh Paswan.
255. Further as we have noted earlier that the instant case is
alleged under section 364A coupled with section 34 of IPC, as
such it is required here to discuss that whether the
prosecution has able to prove the charge of 364A of IPC
against the accused person namely Santosh Paswan with the
aid of section 34 of the IPC.
256. The essence of liability under Section 34 IPC is
simultaneous conscious mind of persons participating in the
criminal action to bring about a particular result. Minds
regarding the sharing of common intention gets satisfied
when an overt act is established qua each of the accused.
Common intention implies pre-arranged plan and acting in
concert pursuant to the pre-arranged plan. Common
intention is an intention to commit the crime actually
committed and each accused person can be convicted of that
crime, only if he has participated in the commission of crime
with a common intention.
257. It is evident that the inference regarding applicability of
Section 34 of the IPC to be drawn from the circumstances
appearing from the proved facts of the case and the proved
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circumstances and the criminal act actually committed would
certainly be one of the important factors to be taken into
consideration but should not be taken to be the sole factor.
258. It is further settled proposition of law that to rope in an
accused with the aid of section 34 IPC, it must be established
by cogent evidence that he shared common intention and at
the time when the final act was accomplished, he was there,
may be not at the actual spot.
259. In Jarnail Singh vs. State of Punjab; AIR 1982 SC
70, the hon'ble Apex Court held that since there was no pre-
concert between the accused persons nor a meeting of minds
between them before the offence took place, the conviction of
the accused under Section 302/34 IPC was bad and since the
accused merely gave a token blow on the ear and caused
simple injuries, the conviction was altered to one under
Section 324 Indian Penal Code.
260. In the backdrop of the aforesaid discussion and the
judicial pronouncement and the evidence of prosecution
witnesses and also taken into consideration the facts and
circumstances of the instant case we are of the view that the
prosecution had failed to put any cogent and reliable evidence
against the accused Santosh Paswan except the CDR by
which his mobile location was found on the GT Road.
261. The victim boy in his Statement under Section 164
Cr.P.C. has stated that two boy boarded in Dhanbad and de-
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boarded in Maithin but certainly did not name this accused.
However, he named this accused during examination-in-chief
for the first time.
262. So far identification is concerned, though the victim has
identified appellant Santosh Paswan during TIP but the
learned counsel for the appellant has made a ground that
before TIP the victim boy was identified to Santosh Paswan in
Police Station. From perusal of the testimony of victim boy, it
is evident that the aforesaid contention has fully been
substantiated by the paragraph 33 of the cross-examination
of victim boy.
263. It is admitted fact that neither the mobile of the accused
Santosh Paswan was used in the alleged commission of crime
of demanding ransom nor any incriminating article has been
recovered from his possession.
264. It is evident from the perusal of the testimonies of the
witnesses that except the victim boy no other witness who
were examined on behalf of the prosecution has not named
Santosh Paswan as an accused and further the prosecution
has not able to prove the direct involvement of the accused/
appellant Santosh Paswan in the instant case in any manner.
265. On entirety of facts and circumstances of the case as
also the legal proposition , as discussed hereinabove:
I. The Cr. Appeal (DB) 928 of 2016 and Cr. Appeal
(DB) 1051 of 2016, so far it relates to appellants, Nitish
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Vatsh @ Nitin Vatsh and Santosh Kumar Singh @
Santosh Singh are concerned, are hereby dismissed.
Consequently, the judgment of conviction and order of
sentence passed against them by the learned trial court
needs no interference by this Court.
II. The Criminal Appeal (D.B.) No. 889 of 2016, preferred by
appellant, Santosh Paswan, is hereby allowed and
judgment of conviction and order of sentence passed
against him by the learned trial court is hereby quashed
and set aside. Consequently, the appellant, Santosh
Paswan, is acquitted of the charges leveled against him.
Accordingly, the appellant, namely, Santosh Paswan is
directed to be released forthwith from the jail custody, if
not wanted in any other case .
266. Pending Interlocutory Applications, if any, stand
disposed of.
267. Let the Lower Court Records be sent back to the Court
concerned forthwith, along with the copy of this Judgment.
I Agree (Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.) (Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi
Dated: Ranchi 12/02/2024
Alankar / A.F.R.
