Shoshit Kumar @ Suchit Kumar vs The State Of Bihar
2023 Latest Caselaw 4237 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.665 of 2015
   Arising Out of PS. Case No.-11 Year-2009 Thana- KHARHAGPUR District- Munger
======================================================

Shoshit Kumar @ Suchit Kumar, Son of Indradeo Mandal, R/o Dohal Pahari, P.S.-Asharganj, District-Munger.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 678 of 2015 Arising Out of PS. Case No.-11 Year-2009 Thana- KHARHAGPUR District- Munger ====================================================== Uday Kumar Mandal @ Uday Mandal, Son of Yugal Mandal, R/o Village- Baijalpur, P.S.-Kharagpur, District-Munger.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 773 of 2015 Arising Out of PS. Case No.-11 Year-2009 Thana- KHARHAGPUR District- Munger ====================================================== Pankaj Mandal, Son of Yogendra Mandal, R/o Village-Katahara, P.S.- Sultanganj, District-Bhagalpur.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 307 of 2016 Arising Out of PS. Case No.-11 Year-2009 Thana- KHARHAGPUR District- Munger ====================================================== Barun Mandal, S/o Yogendra Mandal, R/o Village-Katahra, P.S.-Sultanganj, District-Bhagalpur.

Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

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

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

(In CRIMINAL APPEAL (DB) No. 665 of 2015) For the Appellant/s : Mr. Subodh Kumar Jha, Adv.

For the State : Mr. D.K. Sinha, APP (In CRIMINAL APPEAL (DB) No. 678 of 2015) For the Appellant/s : Mr. Subodh Kumar Jha, Adv.

Mr. Prince Kumar Mishra, Adv.

Mr. Pranav Kumar Jha, Adv.

For the State : Mr. D.K. Sinha, APP (In CRIMINAL APPEAL (DB) No. 773 of 2015) For the Appellant/s : Mr. Indu Bhushan, Adv.

For the State : Mr. D.K. Sinha, APP (In CRIMINAL APPEAL (DB) No. 307 of 2016) For the Appellant/s : Mr. Davendra Kumar Pandey, Adv.

For the State : Mr. D.K. Sinha, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR) Date : 04-09-2023

All the four appeals have been taken up

together and are being disposed off by this common

judgment.

2. We have heard Mr. Subodh Kumar Jha,

Mr. Indu Bhushan and Mr. Davendra Kumar Pandey, the

learned Advocates for the appellants in Cr. Appeal (DB)

Nos. 678 of 2015, 773 of 2015 and 307 of 2016 Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

respectively.

3. Nobody has appeared on behalf of the

appellant/Shoshit Kumar @ Suchit Kumar in Cr. Appeal

(DB) No. 665 of 2015. However, on the request of the

Court, Mr. Subodh Kumar Jha, the learned Advocate,

has assisted us on behalf of the appellant/Shoshit Kumar

@ Suchit Kumar.

4. The State, in all these appeals, has been

represented by Mr. Dilip Kumar Sinha, the learned APP.

5. It may be noted that the

appellants/Shoshit Kumar @ Suchit Kumar, Uday Kumar

Mandal @ Uday Mandal and Pankaj Mandal were tried by

the learned Addl. Sessions Judge-V, Munger in Sessions

Trial No. 496 of 2009, whereas the appellant/Barun

Mandal [Cr. Appeal (DB) No. 307 of 2016] was tried by

the same learned Judge but in a different sessions trial,

namely, Sessions Trial No. 481 of 2012. The

investigation with respect to appellant/Barun Mandal was

kept pending for a while, whereafter he too was sent up Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

for trial. This was the reason for two separate trials.

6. The appellants/Shoshit Kumar @ Suchit

Kumar, Uday Kumar Mandal @ Uday Mandal and Pankaj

Mandal have been convicted under Section 364A/34 of

the I.P.C. vide judgment dated 27.07.2015 passed by

the learned Addl. Sessions Judge-V, Munger in Sessions

Trial No. 496 of 2009, arising out of Kharagpur P.S.

Case No. 11 of 2009, and by order dated 29.07.2015,

they have been sentenced to undergo imprisonment for

life, to pay a fine of Rs. 5,000/- each and in default of

payment for fine, to further suffer S.I. for one month.

7. The appellant/Barun Mandal has been

convicted under Section 364A/34 of the I.P.C. vide

judgment dated 05.11.2015 in Sessions Trial No. 481 of

2012, arising out of Kharagpur P.S. Case No. 11 of

2009, and by order dated 06.11.2015, he too has been

sentenced to undergo imprisonment for life, to pay a fine

of Rs. 5,000/- with the same default clause referred to

above.

Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

8. The references to the witnesses in the

case of appellant/Barun Mandal [Cr. Appeal (DB) No.

307 of 2016] would be in the context of the judgment

passed in Sessions Trial No. 496 of 2009.

9. The minor son of Basuki Yadav (PW-6),

namely, Ajay Kumar was abducted and he raised

suspicion on Ajit Kumar and Uday Kumar, who are own

brothers and a neighbour of PW-6. The First Information

Report was lodged on 11.01.2019 by PW-6 alleging that

his minor son/Ajay Kumar went out of his house along

with Ajit Kumar to play, but did not come back. When

Ajit Kumar was questioned, he did not come out with

any positive information. This made PW-6 suspect that

perhaps Ajit Kumar had misled his son and had taken

him somewhere. Later, PW-6 learnt through his villagers

that the elder brother of afore-noted Ajit Kumar had

come to his house on a motorcycle along with an

unknown person and, thereafter, had left the village

home. He too had not come back to his home. This was Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

the reason for PW-6 to suspect the hands of the two

brothers, namely, Ajit Kumar and Uday Kumar in the

kidnapping of his son.

10. On the basis of the afore-noted written

report, Kharagpur P.S. Case No. 11 of 2009, dated

11.01.2009, was registered for investigation under

Sections 363, 365 and 34 of the I.P.C. Section 364 of

the I.P.C. was later added on 16.01.2009 under the

orders of the Court.

11. The police, after investigation, submitted

charge sheet against the appellants/Shoshit Kumar @

Suchit Kumar, Uday Kumar Mandal @ Uday Mandal and

Pankaj Mandal as also Ajit, but since Ajit was found to

be a juvenile on the date of the occurrence, his case was

referred to the Juvenile Justice Board. Later, charge-

sheet was submitted against Barun Mandal, as noted

above, and all the appellants were tried, though in

different sessions trials.

12. In first of the sessions trials, namely, Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

Sessions Trial No. 496 of 2009, the Trial Court

examined nine witnesses on behalf of the prosecution,

whereas in Sessions Trial No. 481 of 2012, fourteen

prosecution witnesses were examined.

13. Basuki Yadav (PW-6), who is the father

of the victim, stated before the Trial Court that the

occurrence took place on 10th of January, 2009 at about

10 O' Clock in the day. Ajit, his neighbour, had taken

his son away from the house for playing but when his

son did not return till about 03:00 PM, a search was

made for him but to no avail. As alleged in the F.I.R.,

PW-6 has further stated before the Trial Court that Ajit,

on being asked, did not say anything. At about 2 O'

Clock in the day, the appellant/Uday Kumar Mandal (the

elder brother of Ajit) is said to have come along with an

outsider to his home and shortly thereafter, both of

them went away. For the whole day, the search

operation continued. At about 08:30 in the night on the

same day, he received a telephonic call from an Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

unknown caller asking him to pay up Rs. 4,00,000/- as

ransom amount for securing the release of his son. The

PW-6, thereafter, went to the Kharagpur police station

on the next day along with his two associates and gave a

written report. He has further admitted during the trial

that his son was recovered from Maheshkhoot, who was

in the company of the appellant/Pankaj Mandal. He is

categorical in his assertion that his son was kidnapped

by Pankaj Mandal, Ajit Mandal, Uday Mandal, Shoshit

Mandal and Bhola Mandal. He had not seen any one of

them taking away the victim except Ajit, a contemporary

of the victim. He has further admitted before the Trial

Court that for the first time, he made the statement

before the police on 11th of January, 2009 and,

thereafter, for the first time, he had deposed before the

Court.

14. What is to be noted here is that the PW-

6 had received the ransom call on his mobile telephone,

the details of which he neither disclosed during the trial Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

nor did he speak about it in the written report which he

had lodged on 11th of January, 2009. This, it has been

asserted by the appellants, was only an embellishment in

order to bring home the mischief of Section 364A of the

I.P.C.

15. The victim/Ajay Kumar, at the trial, was

first tested by the Trial Court about his competence to

depose before a Court of law. On the Trial Court being

satisfied about his mental faculties, it recorded his

deposition. He has stated that on 10.01.2009, Ajit took

him to a field for witnessing a match. He remained in the

field till about evening, whereafter he was taken to a

place which was not on way to his home. No sooner did

he realize that he was being taken to another place, he

refused to go with Ajit and consequently Ajit chased him.

As a result of all this, the victim (PW-7) was injured in

his legs and it was at that time that he showed his anger

at Ajit. In the meantime, a person with a tall stature

came and threatened him. Ajit and the person who had Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

arrived at the scene of occurrence took him to Dhol

Pahadi, where he found appellant/Uday Kumar. He was

handed over to two persons, whereafter Ajit and Uday,

both, left the place. The victim was then taken near the

railway tracks where appellant/Pankaj and one Anil were

waiting and he was handed over to them. He was,

thereafter, taken to Sultanganj by Pankaj and Anil and

was kept somewhere in the night. On the next day, he

was made to ride on a boat and was taken to a village

named Sondhya. He was put up in the house of an old

lady, who was addressed by Pankaj as his aunt. When

Pankaj and Anil went to attend to the call of nature on

the next day, the victim is said to have disclosed his

story to the old house-lady.

16. According to the deposition of the victim,

the land-lady warned Pankaj and Anil and asked them to

go away as the police would come looking for them.

Thereafter, Pankaj and Anil brought the victim to

Maheshkhoot Chowk where a police officer was waiting. Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

He apprehended Pankaj and brought the victim to

Kharagpur police station where he stayed for the whole

of the night. Next day, he was brought to Munger Court

to make a statement before the Court. He has identified

his statement made at Munger, which has been brought

on record as Ext.-1. There was no fight with the family

of Ajit and Ajay and he also had never fought with Ajit.

Ajit never studied with him, but the victim was friends

with him. He could not but name the person who had

taken him to Uday along with Ajit. In some other

connection, the victim has named the appellant/Shoshit

also.

17. From the deposition of the victim, two

things appear to be very clear. Appellant/Uday knew

about the victim being escorted by his younger

brother/Ajit to a destination which was prefixed. Uday

and Ajit, after handing over the custody of the victim to

Pankaj and Anil, left the company of the victim and went

away. Pankaj and Anil brought him to the house of a Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

lady after crossing a river. The lady, perhaps, did not

know that the victim was in the captivity of Pankaj and

Anil. She came to learn only when the victim got an

opportunity to speak to her in the absence of Pankaj and

Anil.

18. It is also to be noted that Anil was

neither suspected nor his identity was ever inquired or

investigated nor any person by the name of Anil was put

on trial.

19. Another very noticeable fact is that on

the asking of the house lady, if the victim is to be

believed totally, he was brought to Maheshkhoot where

the police officer was present from before, then it

presupposes that there was no raid by the police for

searching out the victim. This definitely leads to the

inference that there was no disclosure by any one of the

accused persons. They may not have been arrested and

interrogated by the police prior to the victim having been

brought to a place where he was taken custody of by the Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

police officer.

20. According to the prosecution version,

appellant/Shoshit was a resident of Dhol Pahadia where

the victim was first taken to. It appears from the

deposition of the witnesses that appellant/Shoshit was

arrested and a confession was extracted from him.

Thereafter, it has been shown by the prosecution that

the recovery of the victim was at the instance of afore-

noted appellant/Shoshit. We say so for the reason that

there is a recovery memo on record, which reflects that

the victim was recovered at Maheshkhoot Chowk by the

police. In the afore-noted recovery memo, there is an

endorsement of appellant/Shoshit that this recovery was

made at his instance.

21. This, as has rightly been pointed out by

the learned Advocates for the appellants, was only a

paper work to indicate that the police had investigated

and had made efforts to recover the boy and laid the

blame on the appellants for them to be charged, Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

prosecuted and convicted for the offence under Section

364A of the I.P.C.

22. The afore-noted proposition of the

appellants further gets confirmed by the deposition of

the I.O. of this case, namely, Jagdish Chaudhary, who

has been examined as PW-8. Though he has made a

categorical statement before the Trial Court that the

victim was recovered from the possession of the

appellant/Pankaj Mandal and that a mobile telephone

also was recovered from him, which was seized but has

not stated anything which would demonstrate that any

investigation was made against the charge of PW-6 of

his having received any ransom call for securing the

release of the victim. He admits at the trial that during

course of investigation, he took the statement of the

witnesses and arrested the accused persons and also

recorded their confessions. A vague and general

statement has been made by him that from the

statement of the accused persons, the victim was Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

recovered and a case under Section 364A/34 of the

I.P.C. was registered against the appellants.

23. Whose statement led to the recovery of

the boy is not known.

24. What was the statement made by

appellant/Shoshit has also not been stated by PW-8.

Which part of the statement of any one of the accused

persons having made any confession, was admissible

under Section 27 of the Evidence Act, remained totally

obscure. This, therefore, leads to the inference that the

accused persons, of their own, brought the victim to

Maheshkhoot and the police was informed to take charge

of the victim.

25. Was it because of any pressure mounted

by the police or good sense having prevailed upon the

miscreants/appellants, remains unknown.

26. Had it not been the case, the police

would have gone to the place where the victim was kept

in captivity. There is nothing on record to indicate that Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

there was any communication between the police, the

land-lady or Pankaj Mandal and perhaps Anil, who does

not seem to have been on the radar of the police at all.

It, therefore, appears that the police had only been

groping in the dark and the victim was made to reach

the police station at the instance of the accused persons

only, who may have had a change of heart and mind

within the time span of approximately nine days.

27. What strikes us most, while going

through the deposition of witnesses, is that PW-6 did not

ever get any ransom call after the evening of 10 th of

January, 2009.

28. If at all the story of ransom call received

by PW-6 would have been true, he would have narrated

about that in his written report and the case would have

been lodged under Section 364A of the I.P.C. initially

and not only under Section 363 of the I.P.C.

29. The victim has all along maintained that

he was kept in captivity but was never ill treated. He Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

was never under the threat for his life, except for one

occasion, when he was abusing his friend/Ajit for having

misled him and a tall man had appeared at the scene.

Who was this tall man also has not been investigated.

The victim could not tell his name.

30. Was it all a game of children?

31. Ajit and Uday stay next doors. PW-6

does not have any enmity or dispute with the father of

Ajit and Uday. Ajit is a friend of the victim. These are

some of the facts which make the case of the

prosecution, so far as it relates to the offence under

Section 364A of the I.P.C., to be doubtful.

32. However, from the deposition of other

witnesses, who have made very cryptic statements at

the trial, two facts have remained undisputed.

33. The victim was taken to the field either to

play or to see the match by Ajit. None of the witnesses

had seen anything beyond this. The other fact which has

been seen by the witnesses is the arrival of Uday in the Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

village along with an unknown person, both of whom

stayed in the village for a short while, whereafter both of

them went away. These two facts, of themselves, may

not constitute any evidence to be taken as a

circumstance against the appellants. That the victim did

not come back and Ajit did not have reasonable

explanation for the same is but a circumstance, which

cannot be ignored. The victim, therefore, was

abducted/kidnapped from the lawful guardianship of his

parents.

34. Section 361 of the I.P.C. defines

kidnapping from lawful guardianship, which provides that

whoever takes or entices any minor under 16 years of

age, if a male, or under 18 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.

The expression "lawful guardian" in this context includes Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

any person lawfully entrusted with the care or custody

of such minor or other person. The afore-noted offence

is punishable under Section 363 of the I.P.C., providing

for punishment with imprisonment of either description

for a term which may extend to seven years, and shall

also be liable to fine.

35. None of the learned Advocates appearing

for the parties have been able to tell us about the

outcome of the case against Ajit the juvenile.

36. The appellants/Uday Kumar Mandal and

Pankaj Mandal were definitely in the company of the

victim while he was in the captivity after being

kidnapped from the lawful guardianship of his parents.

37. There is but no material against

appellant/Shoshit Kumar except for a vague suspicion

against him and his so-called confession before the

police. The very fact that he was made to put his

endorsement on the recovery memo, justifies the

contention of the appellants that only paper work was Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

done for bringing the case within the four corners of the

mischief of Section 364A of the I.P.C.; otherwise, the

story of ransom call by PW-6 would not have been

introduced for the first time at the trial. That there was

no investigation with respect to any call having been

made on the mobile telephone of PW-6, ought not to be

seen as a mere lapse on the part of the prosecution,

especially when the prosecution has not put up any case

of any ransom demand, thus not necessitating any

investigation on that account.

38. The appellant/Barun Mandal appears to

have been put on trial only on the basis of confession of

appellant/Shoshit Kumar.

39. For this reason, we find the conviction of

appellant/Shoshit Kumar @ Suchit Kumar [Cr. Appeal

(DB) No. 665 of 2015] and appellant/Barun Mandal [Cr.

Appeal (DB) No. 307 of 2016] to be based on "no

evidence" at all.

40. The respective impugned judgment of Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

conviction and order of sentence with respect to afore-

noted two appellants, referred to above, are thus set-

aside. The appellants, namely, Shoshit Kumar @ Suchit

Kumar and Barun Mandal, are, thus, acquitted of the

charges levelled against them.

41. Cr. Appeal (DB) Nos. 665 of 2015 and

307 of 2016 are, accordingly, allowed.

42. The appellant/Shoshit Kumar @ Suchit

Kumar [Cr. Appeal (DB) No. 665 of 2015] is on bail.

His liabilities under the bail-bonds are cancelled.

43. The appellant/Barun Mandal [Cr. Appeal

(DB) No. 307 of 2016] is in custody. He is directed to

be set at liberty forthwith unless his detention is required

in any other case.

44. The conviction of appellant/Pankaj

Mandal [Cr. Appeal (DB) No. 773 of 2015] and

appellant/Uday Kumar Mandal @ Uday Mandal [Cr.

Appeal (DB) No. 678 of 2015] is converted from Section

364A/34 of the I.P.C. to Section 363 of the I.P.C. Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

45. The reason for our saying so is that there

is no evidence to indicate that the kidnapping was either

for the purposes of maiming a minor for begging or for

murdering him or for obtaining ransom, thereby inviting

the application of Sections 363A, 364 and 364A of the

I.P.C.

46. For the reason of the purpose of

kidnapping not have been established, the conviction of

the appellants/Uday Kumar Mandal @ Uday Mandal and

Pankaj Mandal, as noted above, is converted to one

under Section 363 of the I.P.C.

47. A sentence of seven years to both the

appellants/Uday Kumar Mandal @ Uday Mandal and

Pankaj Mandal would, in our estimation, be sufficient to

meet the ends of justice.

48. Their sentence, therefore, is also altered

and both the appellants/Uday Kumar Mandal @ Uday

Mandal and Pankaj Mandal are sentenced to undergo

R.I. for seven years.

Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

49. The learned Advocates appearing for the

afore-noted two appellants have informed this Court that

the appellant/Pankaj Mandal [Cr. Appeal (DB) No. 773

of 2015] has remained in jail for about thirteen years,

whereas the appellant/Uday Kumar Mandal @ Uday

Mandal [Cr. Appeal (DB) No. 678 of 2015] has

remained in custody for seven years, whereafter both of

them were released on bail. Both of them have thus

served the sentence imposed upon them.

50. We do not find any necessity of imposing

any fine on the afore-noted two appellants.

51. Since the appellant/Uday Kumar Mandal

@ Uday Mandal [Cr. Appeal (DB) No. 678 of 2015] and

the appellant/Pankaj Mandal [Cr. Appeal (DB) No. 773

of 2015] are on bail, their liabilities under the bail-bonds

are cancelled.

52. All the appeals are, accordingly, disposed

off.

53. Let a copy of this judgment be Patna High Court CR. APP (DB) No.665 of 2015 dt.04-09-2023

dispatched to the Superintendent of the concerned Jail

forthwith for compliance and record.

54. The records of these appeals be returned

to the Trial Court forthwith.

55. Interlocutory application/s, if any, in all

the appeals, also stand disposed off accordingly.

                                                (Ashutosh Kumar, J)


                                               (Alok Kumar Pandey, J)

Praveen-II/Shahzad

AFR/NAFR                AFR
CAV DATE                N/A
Uploading Date          08/09/2023
Transmission Date       08/09/2023