Goutam Hazira vs State Of Odisha
2021 Latest Caselaw 9340 Ori

  IN THE HIGH COURT OF ORISSA AT CUTTACK

            CRLA No.441 of 2012 & CRLA No.542 of 2012

CRLA No.441 of 2012
Goutam Hazira                               ......               Appellant
Versus
State of Odisha                             ......             Respondent

Advocate(s) appeared in this case :-
      For Appellant              :          Mr. J. Kamila, Advocate
         For Respondent            :        Mr. J. Katikia, Advocate
                                   AND
CRLA No.542 of 2012
Anil Sony                                   ......               Appellant
Versus
State of Odisha                             ......             Respondent

Advocate(s) appeared in this case :-
      For Appellant              :          Mr. R.R. Rout, Advocate
         For Respondent            :        Mr. J. Katikia, Advocate


CORAM :
THE CHIEF JUSTICE
JUSTICE B.P. ROUTRAY

                              JUDGMENT

7th September, 2021

B.P. Routray,J.

1. Both the Appellants, Goutam Hajira and Anil Soni have been convicted by the learned Ad hoc Additional Sessions Judge, (F.T.C.-I), Balasore in Sessions Trial No.117/265 of 2010 for the commission of

offences under Section 364-A/392/34 of the Indian Penal Code (I.P.C.) and have been sentenced to life imprisonment.

2. The prosecution story in brief is that, the victims Papu @ Abhimanyu Mahuri (P.W.2) and Pintu Pradhan were working in a textile mill at Coimbatore. On 27th May, 2010 they moved from Coimbatore to Balasore by train i.e. the Karamandal Express. They boarded the train at Chennai on 27th May, 2010. They were scheduled to alight at Balasore railway station the next day. But on the way, the victims were kidnapped by the Appellants were robbed and taken away to an unknown place in West Bengal for ransom.

3. In the night of 30th May, 2010 a phone call was received by Gada @ Sunil, the brother of P.W.2 about the kidnapping of P.W.2 and his friend Pintu. The caller demanded a ransom of Rs. 2 lakhs. Sunil in turn informed Balaram (P.W.1), the eldest brother of both PW 2 and Sunil. On the next day Balaram lodged the F.I.R. (Ext.1) which was registered as Balasore GRPS Case No.22 dated 31st May, 2010. P.W.5, the then Sub-Inspector of Police immediately took up investigation of the case and in course of investigation sent a requisition to the Officer-in-Charge (OIC) of Dolahat Police Station (WB). P.W.4, another Sub-Inspector of Police attached to Balasore Town P.S. was sent to Dolahat along with one Muralidhar Sethi immediately. When P.W.4 reached Dolahat P.S., he found both the victims had already been rescued. Subsequently, P.W.4 brought both the victims to Balasore and handed them over to P.W.5.

4. On 04.06.2010, P.W.5 went to Dolahat to conduct a raid and arrested both the appellants with the assistance of the Dolahat police. He brought them to Balasore in custody. On completion of the investigation, the charge-sheet was submitted alleging the aforementioned offences.

5. The defence took the plea of complete denial and false implication. In order to prove its case, the prosecution examined five witnesses and marked four exhibits. No material object was admitted into evidence. The defence did not choose to adduce any evidence.

6. Amongst the two offences with which the Appellants have been charged, the principal one is Section 364-A of the I.P.C. For an offence under Section 364-A I.P.C., the ingredients required to be established are that the accused must have kidnapped or abducted any person, kept him in detention and such kidnapping or abduction should have been for ransom associated with reasonable apprehension of death or hurt.

7. In the instant case, only five witnesses have been examined, amongst whom P.W.2 is one of the victims, P.W.1 is the informant and P.W.5 is the investigating officer (IO). The learned trial court is seen to have relied extensively on the evidence of P.W.2 to sustain the conviction.

8. It is submitted on behalf of the Appellants that the learned trial court committed an error in believing the statement of P.W.2 without any corroboration and without any supporting circumstance. In absence of any test identification parade, the identification of the appellants by P.W.2 in the court for the first time raised reasonable doubts. It is further

submitted that his evidence is full of discrepancies. It is submitted that the investigation was perfunctory.

9. P.W.2 is the star witness. According to the prosecution, P.W.2 and his friend Pintu were kidnapped by the Appellants from the train. P.W.2 in his evidence stated that they boarded the train on 27th May, 2010 and reached at Jajpur Station in the early morning (probably next day). Both the Appellants met them in the train after Jajpur station, befriended them and offered them cold drink. After drinking the same, they lost consciousness and when they regained their senses the next day, they found themselves confined in an unknown place in Dolahat with their hands and legs tied.

10. Here prosecution is found to be suppressing many material facts. It has not taken the pain to produce on record any spot map to explain the location of the spot where the victims were kept confined. However, as can be seen from the evidence of P.Ws.4 & 5, Dolahat is in the South 24 Parganas district of West Bengal. If indeed both victims had lost consciousness just after Jajpur Station and remained as such for around one day till they regained their senses, and found themselves tied and confined in a room at an unknown place, how was it possible that they were not noticed by any other person and more importantly how they were removed from the train in an unconscious state without anyone noticing it? The prosecution is completely silent on these aspects. It is common knowledge that to remove two unconscious victims from a running train one has to pass through the Railway Station where policemen and common passersby are often present. It is not that easy to remove two unconscious victims avoiding the notice of everyone. This

is the first doubt comes to a prudent mind, which the learned trial court has lost sight of.

11. P.W.2 has further stated that he and his friend were beaten inhumanely by the Appellants and certain other persons and threatened with murder if the ransom of Rs.2 lakhs was not fulfilled. Prior thereto, their mobile phone, cash and other belongings were robbed by the Appellants. The Appellants then allowed P.W.2 to speak to his brother on the mobile phone of the Appellant-Anil Sony. Accordingly, P.W.2 spoke to his brother from the mobile phone of Anil Sony requesting him to arrange the ransom amount and also to rescue him from the clutches of the Appellants. Here again the prosecution fails to explain how the kidnappers used their own mobile phone to demand the ransom despite the victim's mobile phone being available with them, when in the normal circumstances the kidnappers try to keep their identity concealed. Moreover, neither P.W.2 nor P.W.1 has stated anything about any ransom being demanded in respect of the friend of P.W.2 who was the other victim. Admittedly, no ransom amount was paid. The mobile phone of P.W.2 has not been recovered. Again P.W.2 has not spoken over phone to P.W.1 directly to convey about the demand of ransom. All these discrepancies are apparent on the face of the trial court record.

12. Next, after lodging of the F.I.R on 31st May 2010, the police at Balasore straightaway contacted the police at Dolahat. This means, either P.W.1 had the information about the location of the place of detention of the victims or the police had tracked the call records. P.W.5 admits that no call detail record has been tracked in relation to the

commission of offences. Therefore, the it is entirely probable that the victims had the knowledge of their place of confinement. However, in his cross-examination P.W.2 denied any knowledge of the place of confinement. This renders P.W.2 an unreliable witness.

13. Next coming to the rescue part, it is in the evidence of P.W.2 that his brother with the help of Balasore Police traced and rescued him. This is contradicted by P.Ws.1 & 4. P.W.1 has admitted in his cross- examination that P.W.2 himself escaped from the clutches of the Appellants. Similarly, P.W.4, who immediately went to Dolahat upon lodging of the F.I.R. has stated that by the time he reached at the Dolahat Police Station, the victims have already been rescued and that they were present in the police station. Therefore, the statement of P.W.2 in this regard is found contradictory.

14. Thus, upon a close scrutiny of the entire episode starting from first meeting of the Appellants with the victims till they were found in Dolahat Police Station, there are many unanswered questions and the conduct of the PWs is found suspicious. In that view of the matter, a strong and reasonable doubt is cast on the prosecution version regarding the story of kidnapping of P.W.2 and his friend.

15. Another significant aspect is that the other victim, Pintu, has not been brought to the witness box by the prosecution. No explanation has been offered for his non-examination. Not only Pintu, but Sunil @ Gada, the other brother of PW 2 with whom P.W.1 had direct communication through the alleged mobile phone call has also not been examined by the prosecution. It is obvious that these two persons were

vital to the prosecution case and their non-examination, without any convincing explanation, certainly casts grave doubts on the case of the prosecution.

16. It is trite that there is formula as to the number of witnesses who have to be examined to prove the case of the prosecution. A conviction could well be based on the evidence of a single reliable witness. At the same time, what is important is that the evidence brought on record must be trustworthy, cogent, clinching and free from doubt. In the instant case, the prosecution has based its case entirely on the evidence of P.W.2, who is one of the victims. However, as discussed earlier, his version as to the kidnapping by the Appellants for ransom is found neither trustworthy nor credible in order to sustain the conviction. According to P.W.2, he became unconscious after taking the cold drink offered by the Appellants. This means that there should have been some intoxicating substance mixed in the cold drink which the victims drank. However, the victims were not medically examined to find any such substance in their blood. Similarly, though P.W.2 stated that they were beaten by the Appellants and certain others and suffered bleeding injuries, they were never examined immediately after their rescue at Dolahat. No such medical examination report of the victims has been brought on record by the prosecution.

17. There are other lacunae and discrepancies in the investigation. P.W.5, the IO, admitted that he did not visit the spot where the victims were kept detained. No weapon of offence has been recovered and seized by the prosecution. P.W.5 appears to have acted in a very casual manner. Undoubtedly his investigation was perfunctory. This is indeed

unfortunate. No attempt was made to recover the incriminating materials like the mobile phones of the victims or the brothers of P.W.2. No attempt was made to recover any of the victims' belongings. Though it is alleged by P.W.2 that other persons were present with the Appellants, the prosecution remains complete silent about involvement of any other person. No attempt has been made by the investigating agency to bring on record the tracking of the movement of the train on that particular date including the time of its departure from the relevant stations. It is not as if without those circumstances the case could not have been proved. However, they are significant omissions in this case since the evidence of P.W.2 and the other PWs fails to inspire confidence in the prosecution version.

18. For the reasons discussed above, none of the offences of kidnapping and robbery can be stated to have been proved beyond unreasonable doubt against the Appellants. The learned trial court, without analyzing the above discrepancies and doubts in the case of the prosecution, has mechanically come to the conclusion that the guilt of the Appellants stands proved beyond reasonable doubt. The impugned judgment of the learned trial court is hereby set aside.

19. In the result, holding that the prosecution has failed to establish the charge against the Appellants beyond all reasonable doubt and giving them the benefit of doubt, they are held not guilty of the charges and are hereby acquitted. Both the Appellants shall be set at liberty forthwith, unless their detention is required in connection with some other case.

20. The appeals are allowed. A certified copy of this judgment be transmitted forthwith to the concerned Jail Superintendent.

(B.P.Routray) Judge

(Dr. S. Muralidhar) Chief Justice

07th day of September, 2021.

//C.R. Biswal, Secretary//