Sanjay Thakur vs The State Of Bihar
2023 Latest Caselaw 2162 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.496 of 2016
    Arising Out of PS. Case No.-28 Year-2010 Thana- SITAMARHI District- Sitamarhi
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Sanjay Thakur, Son of Late Ramchandra Thakur, Resident of village - Bari Sinhwahini, Police Station Sonvarsa, District - Sitamarhi

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Uma Shankar Prasad, Sr. Advocate Mr. Kamla Kant Tiwary, Advocate For the Respondent/s : Ms. S.B.Verma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 08-05-2023

Heard Mr. Uma Shankar Prasad, learned senior

Advocate assisted by Mr. Kamla Kant Tiwary, learned

Advocate for the sole appellant and Ms. Shashi Bala

Verma, for the State.

2. The appellant has been charged with

kidnapping Uma Kant Kumar, the victim who has been

examined as PW 4 in this case. PW 4 remained in

confinement for about ten days and was recovered by

Nepali Police and handed over to the father of PW 4 Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

namely Daya Nand Mahto (PW 3) before the Court.

3. The appellant was charge-sheeted along with

another person who never faced trial. The charge-sheet

also named other persons who were shown as

absconders and who have not yet surrendered to the

process of law leaving the appellant only to be tried.

4. It may be relevant here to be noted that the

appellant also did not surrender himself to the process of

law even though he was named in the FIR. He

surrendered much later after the submission of charge-

sheet and he having been declared an absconder.

5. Be that as it may, the Trial Court, after

examining eight witnesses on behalf of the prosecution

and none on behalf of the defense, convicted the

appellant under Section 364 (A) of the Indian Penal

Code and sentenced him to undergo rigorous

imprisonment for life, to pay a fine of Rs. 20,000/- and

in default of payment of fine, to further suffer rigorous

imprisonment for six months.

Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

6. The FIR was lodged by the father of the

victim namely Daya Nand Mahto on 17.01.2010 alleging

that the appellant had come to his house on 14.01.2010

and had conversed with his son (victim) and had gone

out of the house. He came back again on 15.01.2010

and took away his son on some pretext or the other

whereafter the son of the Informant was not to be

traced. Two days later, after having waited for his son to

arrive, the subject FIR was registered under Section 365

of the Indian Penal Code.

7. In the aforenoted FIR, the factum of the

appellant having come to the house of the informant and

having talked to the victim on 14.01.2010 has been

specifically stated. That the appellant came on

15.01.2010 to take away the son of the Informant has

also been specifically mentioned in the aforesaid FIR.

The Informant has further stated that he called the

appellant on his mobile telephone number but, the same

was always found to be switched off. Thus, a request Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

was made to the police authorities to recover his missing

son.

8. On the basis of the aforenoted written report,

Sitamarhi P.S. Case No. 28 of 2010 dated 17.01.2010

was registered for investigation for offence under

Section 365 of the IPC.

9. The police, during the course of investigation

could not get any clue and the appellant could not be

arrested.

10. The appellant all this while was found

missing from his house.

11. After about ten days i.e. on 25.01.2010,

the victim was recovered from a village in Nepal at the

instance of Nepali Police and four other persons were

also arrested who were heavily armed and were keeping

a vigil on the victim. None of those persons have been

extradited for facing trial in India. The victim as noted

above was brought to India by the Nepali Police and

handed over to PW-3.

Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

12. The mother of the victim namely Ram

Kumari Devi (PW 1) has deposed before the trial court

that the appellant had visited her house on 14.01.2010

and thereafter, on 15.01.2010 along with another when

he took away her son. She learnt from her husband (PW

3) that there was a ransom call for Rs. 50 lakhs and a

threatening that if such amount is not paid up, the victim

would be killed. She however has narrated before the

trial court that the victim was taken away while he was

playing in the campus, which statement is substantially

different from the First Information Report where her

husband had stated that the victim was taken away by

the appellant from his house.

13. Similar statement has been made by the

elder brother of the victim namely Mahakant Kumar (PW

2). He had also testified to the fact of the visit of the

appellant to his house on two days and on the second

day of his visit, he had taken away the victim.

14. The father of the victim/informant has been Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

examined as PW 3, who has supported the prosecution

version and has explained that for two days when his

son was not to be found, he made frantic search for him

along with others and only thereafter, the case

registered at Mehsoul O.P. for the offence under Section

365 of the IPC.

15. A day after getting the FIR recorded, the

appellant had called him on telephone and had

demanded Rs. 50 lakhs for release of his son or else the

son would be killed. Immediately, this fact was

communicated to the concerned police and the police

officer contacted the Superintendent of Police. However,

in the meantime, he learnt that his son has been

recovered at the instance of Nepali Police and he was

asked to take custody of his son. Since then, his son has

been residing with him. He, in his cross examination has

confirmed the fact that according to the information

given to him by the police, the victim was recovered in

Nepal on 25.01.2010 in evening hours.

Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

16. The victim was brought to Sitamarhi first at

Mehsoul O.P. from where he was made to go along with

PW 3. The victim was produced in the Court on next day

and thereafter, the victim has been residing with him. He

was not asked by the local police which was investigating

the matter to handover his mobile telephone on which

there had been a ransom call. He has denied of having

made any wrong statement either in the FIR or before

the Court.

17. The victim has been examined as PW 4,

who has reiterated the allegation that at about 5 o'clock

in the evening on 15.01.2010, he was asked by the

appellant to come to Dumra. He accompanied the

appellant and after reaching some distance, he found

one Pankaj Singh, waiting for the appellant on a

motorcycle. The appellant, the victim and aforenoted

Pankaj Singh travelled through the river Lakhandai on

the same motorcycle and reached a place somewhere in

Nepal where he was kept in a hut. In his presence, his Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

father was called on telephone and was asked for Rs. 50

lakhs as ransom money. While the accused persons were

talking to his father, he was under the threat of being

hurt, as a pistol was pointed at him by one of the

accused persons. He claims to have given statement

before the Magistrate under Section 164 of the Code of

Criminal Procedure. About 4 to 5 persons always

remained near the hut, guarding him. He could

remember the names of Navin Kumar Yadav, Sunil

Kumar Yadav, Ramjee Yadav and Ram Pravesh Paswan.

(The records reveal that the aforenoted four persons

were arrested by the Nepali Police along with arms).

18. At the time of the occurrence, the victim

was student of standard 5. He had not made any hue

and cry when he was being taken to Nepal through

Lakhandai river.

19. Surprisingly, four police officers have taken

part in the investigation one after the other, possibly on

account of those police officers being transferred mid- Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

way. They have been examined as PWs 5 to 8, out of

whom someone had registered the FIR and the other

had taken statement of the witnesses and still another

had submitted the charge-sheet. Till the time the

investigation continued, as noted above, the appellant

had not surrendered to the process of law. He

surrendered only after the submission of charge-sheet

before the Court and had applied for bail which was

rejected. Since then, the appellant is in jail. The 313

statement of the appellant was recorded. To all the

circumstances with which he was confronted, he did not

say anything positive but denied the accusation in a

repetitive manner.

20. From the deposition of witnesses, it

becomes clear that the appellant had been instrumental

in taking away the victim to a destination in Nepal where

he was kept in confinement for ten days. The active part

taken by the appellant is confirmed by all the witnesses,

including the victim. PWs 1, 2 and 3 have clearly Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

testified to the fact that the appellant had come to their

house on 14.01.2010 and thereafter, on 15.01.2010

and went out along with the victim. The appellant did not

show up thereafter, even during the course of

investigation till the submission of charge-sheet and, per

force, his property was attached and he was declared a

permanent absconder.

21. Mr. Uma Shankar Prasad, learned senior

Advocate for the appellant has submitted that there are

certain glaring facts which stares at the correctness of

the prosecution version. He has submitted that the

conviction is based solely on the 164 statement of the

victim who has deliberately supported the same in his

deposition before the Court for reasons which are not

known to the appellant. He further submits that it

appears to be rather improbable that the appellant who

hails from the same area would show such dare-devility

in making a reconnaissance a day before taking away

the victim and thereafter, taking him from the house to Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

an unknown destination on the next day. He submits

that what is more surprising is that according to the

prosecution case, he also called PW 1 and demanded

ransom of Rs. 50 lakhs for securing the release of the

victim.

22. The aforenoted story-line appears to be

rather strange. He further submits that the written

report does not appear to have been written in the

handwriting of PW 1. A doubt has been raised on the

correctness of the prosecution version also on the

ground that even when a 13 year old boy of the house

was not to be found, the FIR was registered only after a

delay of two days with a flimsy explanation that the

family members were awaiting the arrival of the victim

and that a search was being made for him in the

neighborhood.

23. The other ground raised on behalf of the

appellant is that the investigating police never went to

Nepal for the recovery of the victim and the persons who Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

were guarding the victim in a hut in the suburbs of Nepal

were never put on trial. In what transaction had the

victim reached that place is not known. True it is that he

has been recovered at the instance of Nepali Police but,

non-presence of the appellant in Nepal at the time of the

recovery of the boy further creates doubt on the

prosecution case of the appellant having

abducted/kidnapped the victim.

24. At best, Mr. Prasad contends that if the

statements of PWs 1, 2 and 3 are analyzed

dispassionately, the only evidence against the appellant

would be that he was last seen going out with the victim.

25. Though some attempt has been made by Sri

Prasad for demonstrating that there were reasons for

PW 2 to falsely implicate the appellant but such efforts

were later abandoned. The appellant wanted to

communicate that there was some rancour between him

and PW 1 as he had, in the past, refused to oblige as a

barber, without being paid for such services. This Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

otherwise appears to be a very weak reason for either

the appellant to have kidnapped the son of the family or

for PWs 1, 2, 3 and 4 as well for falsely implicating the

appellant.

26. Ms. Shashi Bala Verma, learned counsel for

the State has on the contrary, submitted that the

conviction is not solely based on 164 statement of the

victim which by no measure could be called a piece of

evidence. The victim has clearly deposed that he was

taken away from his house to go to Dumra by the

appellant. Midway, there was another person waiting for

him and the victim on a motorcycle. All three of them

travelled on the same motorcycle and reached Nepal

where the victim was confined in a thatched house. The

victim also has candidly accepted that he was assaulted

and was not taken care of by the appellant and others.

27. Thus, all the inconsistencies pointed out by

the appellant recedes in the background.

28. There is no reason for a boy, who at the Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

time of trial had become a person of 15 years, to falsely

depose against the appellant. Had he been making a

wrong statement, he would have spoken about the

presence of the appellant in the hut where he was kept

in confinement. All that he has said is that the appellant

had, on some pretext, taken him to Dumra and on way,

collected one Pankaj Singh and used his motorcycle for

going to Nepal. The presence of the appellant is noted

only for a day in Nepal when he is said to have made a

call to PW 1 for demanding ransom money of Rs. 50

lakhs for the release of the victim. It has further been

pointed out that had there been any intention on the

part of PW 1 to have falsely implicated the appellant,

such FIR would have been lodged on the first day itself

under Section 364 (A) of the IPC. The family members

waited for two days, hoping the return of the son of the

family but, when nothing was heard about him, the FIR

was registered but only under Section 365 of the Indian

Penal Code. That was highly justified as the appellant Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

had accompanied the victim whereafter neither victim

nor the appellant were to be heard of.

29. After having heard the learned counsel for

the parties and having examined the entire records of

this case, we find that there has not been any delay in

reporting the matter to the police. Normally, if a minor

member of a family is not to be found for a day, there is

always a feverish activity and police is informed. In the

present case, waiting two days for the victim to show up

is not such a delay which would discredit the prosecution

version in its totality. The FIR lodged by PW 1 appears

to be without any exaggeration. The intention of PW 1

was only to secure the release or recovery of his minor

son. Shortly thereafter, there was a ransom call by the

appellant himself, which fact was promptly reported to

the police. However, the police could swing into action

and the victim was recovered from Nepal. This story

does not have any chinks for it to be rejected. PW 3

knew the appellant from before which also is evident Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

from the fact that he remembered the telephone number

of the appellant on which an attempt was made to call

but was of no avail as the telephone was not kept in

operative condition. There does not appear to be any

gap in the prosecution story as it is very natural for any

person not to doubt the intentions of a known person.

30. What was the conversation between the

victim and the appellant on 14.01.2010 and thereafter

on 15.01.2010 and why did the victim agree to go along

with the appellant and that also without asking his family

members is no ground for doubting the prosecution case.

A young boy could always agree to go out of the house

to see the brighter lights of a neighboring country. There

is always an expectation in the mind of the family

members that the person going out of the house for a

short visit would come back. There was no lingering

doubt in the mind of family members including PWs 1, 2

and 3 that the appellant had harboured the intention of

kidnapping the victim. It was only after a day of lodging Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

of the FIR under Section 365 IPC that the Informant

(PW 3) received a ransom call.

31. We have given out anxious consideration

over the fact that no hue and cry was made by the

victim while he was being taken to Nepal. However, on

close analysis of the evidence on record, it does not

appear to be strange at all. The victim was never

blindfolded or informed that he is in the captivity of the

appellant. Willingly, the victim had accompanied the

appellant. Even when an associate of the appellant met

them midway, there was no reason for the victim to

doubt them. It was only when all of them reached Nepal

and the victim was made to stay in a hut, which was

guarded by four persons that he realized that he has

been put in confinement after being abducted. This being

the situation, it is quite natural that he did not raise any

hulla while he was being taken to such unknown

destination.

32. We have also carefully analyzed the entire Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

evidence in order to see whether the appellant was

arrested in Nepal at the time of the recovery of PW 4.

33. Though we did not find any evidence with

respect to his presence in Nepal at the time of the

recovery of PW 4 but, that does not absolve the

appellant of the accusation raised against him, specially

in view of the fact that PWs 1, 2, 3 saw the appellant

going out of the house along with PW 4 and thereafter,

there was an eerie silence from his side. He did not keep

his telephone in operative condition. He called PW 3 only

on the next day with a demand of Rs. 50 lakhs.

34. Thus, it is not difficult to arrive at the

conclusion that the appellant had taken an active part in

abducting/kidnapping the victim for the purposes of

taking money from his father. What could be the reason

for a barber of a village to remain absconding for so

many days and showing up only after his property was

attached for his having been declared an absconder. No

attempt has been made by the appellant during trial to Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

explain away his absence for all this while when the case

was being investigated. That apart, we do not have any

reasons to doubt the correctness of the deposition given

by PW 4 and his having identified the appellant. They

are no strangers. The appellant appears to be known to

the family from before. The trust of the victim appears

to have been betrayed only when he was confined in the

hut in the suburbs of Nepal.

35. Thus, the evidence in all respect is complete

so far as the accusation against the appellant is

concerned. There could have been no other purpose

except for coercing the family of the victim in parting

with money for securing the release of the victim. This

brings the case within the four corners of Section 304

(A) of the Indian Penal Code which provides for only two

punishments viz. death or life imprisonment.

36. That the appellant was identified by the

victim of making a ransom call during his captivity and

his clear statement that he was assaulted during the Patna High Court CR. APP (DB) No.496 of 2016 dt.08-05-2023

period of his captivity and was also kept under threat of

being bodily harmed regularly, further affirms the

ingredients of the offence under Section 364 (A) of the

Indian Penal Code.

37. For the aforenoted reasons, we do not find

any reason to interfere with the judgment of the trial

Court convicting the appellant under Section 364 (A) of

the IPC and sentencing him to go under the rigorous

imprisonment for life, to pay a fine of Rs. 20,000/- and

in default of payment of fine to further suffer Rigorous

Imprisonment for six months.

38. The appeal is thus dismissed.

                                                                          (Ashutosh Kumar, J)


                                                                            (Harish Kumar, J)
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Uploading Date          12.05.2023
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