The High Court · 2023

Judgment

21.06.2023 D.Dash,J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 20th November, 2017 passed by learned Sessions Judge, CRLA No.785 of 2017 {{ 2 }} Jharsuguda, S.T. Case No.32/16/34/54 of 07/14/15 corresponding to G.R. Case No.254 of 2007 arising out of Brajrajnagar P.S. Case No.37 of 2007 of the court of learned Sub- Divisional Judicial Magistrate (S.D.J.M.), Jharsuguda. By the same, the Appellant (accused) has been convicted for commission of offence under section 364-A of the Indian Penal Code, 1860 (for short called as 8the IPC9). Accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.20,000/- (Rupees Twenty Thousand), in default to undergo further imprisonment for three (3) months.

2. Proseuction Case: On 11.02.2007 at about 4.30 p.m., the minor daughter of Madhab Oram (informant-P.W.1), having left the house, did not return till late evening. The informant and other members of the family, therefore, went in search of the victim at different places and in that mission, they failed. However, on the next morning, a call from an unknown person was received by the informant (P.W.1) in his mobile phone and it was told that his minor daughter had been kidnapped. He was then asked to pay a sum of Rs.25,000/- (rupees twenty-five thousand) as ransom for being delivered at Sambalpur for onward release of his minor daughter. The informant (P.W.1) then had the occasion to talk with his CRLA No.785 of 2017 {{ 3 }} minor daughter, who had been put on line through the phone set for some time to speak to her father (informant-P.W.1). The informant (P.W.1) then on 13.02.2007 around 10.30 a.m., lodged written report with the Sub-Inspector of Police (S.I.) who is in charge of the Inspector-in-Charge. He treated the same as the

Legal Reasoning

First Information Report (F.I.R.-Ext.1) and registering the case, took up investigation.

3. In course of investigation, the Investigation Officer (I.O.- P.W.11) examined the informant (P.W.1) and other witnesses, sent the requisition to the Inspectors-in-Charge of Sambalpur and Ainthapalli Police Station for tracking of the phone number 0663-

293240. He also verified the telephone calls coming from the No.06645-274461 of pay-phone booth under Jharsuguda. On

14.02.2007, the I.O. (P.W.11), got the information of return of the victim to her house. On that day, he re-examined the informant (P.W.1), who happens to be the father of the victim and also examined the victim (P.W.6). The motorcycle bearing registration No.OR-15-5440 belonging to the accused said to have been used in carrying the victim was seized under seizure list (Ext.5) and so also cash of Rs.25,000/- (Rupees Twenty-Five Thousand) from the house of the accused under seizure list Ext.6,w which was paid for getting the victim released. One Nokia mobile phone set was seized from the possession of this accused under seizure list CRLA No.785 of 2017 {{ 4 }} (Ext.4). The accused then was apprehended along with one Md. Sk. Ishrar Alam and they were forwarded in custody to Court on

16.02.2007. The victim (P.W.6), in course of investigation, was also medically examined. On completion of the investigation, the Final Form was submitted placing this accused with other accused Md. Sk. Ishrar Alam to face the Trial for commission of offence under section 364-A of the IPC.

4. On receipt of the above Final Form, learned S.D.J.M., Jharsuguda, took cognizance of the said offence and after observing formalities committed the case to the Court of Sessions. That is how the Trial commenced by framing the charge against this accused as the presence of other accused Md. Sk. Ishrar Alam could not be secured at subsequent point of time.

5. In the Trial, the prosecution in total has examined eleven (11) witnesses. Out of them, as already stated, P.W.1 is the father and P.W.2 is the mother victim. P.W.4 is the Doctor, who examined the victim and P.W.9 is the Doctor, who examined this accused. P.W.5 is a friend and co-villager of the informant. The victim has been examined as P.W.6. The I.O., at the end, has come to the witness box as P.W.11. CRLA No.785 of 2017 {{ 5 }} Besides leading the evidence by examining the above witnesses, the prosecution has also proved several documents which have been admitted in evidence and marked Exts.1 to 13.

6. The defence plea is that of complete denial and false implication. The accsued, in support of his case, has examined one Amit Oram as D.W.1.

Legal Reasoning

Learned counsel for the Appellant (accused) submitted that the evidence of P.Ws.1 & 2 and the victim (P.W.6), having not been properly examined and appreciated in proper perspective, the Trial Court has committed the error in holding that the prosecution has proved the charges against this accused beyond reasonable doubt. He further submitted that even if the evidence of the victim (P.W.6) is accepted on its face value, the same take together with the evidence of P.W.1 do not establish the charge under section 364-A of the I.P.C.. He further submitted that the manner in which the victim (P.W.6) has stated about the incident and what P.W.1 has said in his evidence, the prosecution story as projected is highly unbelievable. He further submitted that the evidence of P.Ws.1 to 5 and 6 do not go to establish all the required ingredients for commission of the offence under section 364-A of the I.P.C. He also submitted that the evidence of the prosecution witnesses do not establish the fact that this accused CRLA No.785 of 2017 {{ 6 }} had threatened to cause the death or hurt to the victim (P.W.6) and that such threat to cause hurt or death to such person was in order to compel P.W.1 to do the particular act of paying the money and buy-back his daughter (victim). He also submitted that on the basis of the evidence on record, the factum of kidnapping of P.W.6 is also not acceptable as here the circumstances go to show that the victim (P.W.6) accompanied the accused on account of her own will and volition and not being so compelled in that regard.

8. Learned Additional Standing Counsel for the Respondent (State) submitted all in favour of the finding returned by the Trial court holding the accused guilty for commission of the offence under section 364-A of the IPC. According to him, when it has been proved through P.Ws.1, 2, 5 & 6 that the accused and another had accompanied the victim (P.W.6) and was later on released on payment of a sum of Rs.25,000/- (Rupees Twenty-Five Thousand) by P.W.1 after he was given the threat that her daughter would be killed and after her daughter was also threatened in that light, the finding of guilt, as has been recorded by the Trial Court, against the accused is not liable to be disturbed. He further submitted that the Trial Court, having analyzed the evidence from every possible angle, has rightly concluded that for the act of this accused, he is guilty for CRLA No.785 of 2017 {{ 7 }} commission of the offence punishable under section 364-A of the I.P.C.

9. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction. We have also gone through the depositions of all the witnesses P.W.1 to P.W.11 and have perused the documents admitted in evidence and marked as Ext.1 to 13 from the side of the prosecution.

10. Proceeding to address the rival submission and thereby ascertain the sustainability of the finding of conviction of the accused, as has been returned by the Trial court, we are now called upon to undertake the exercise of examination of the evidence on record. The important witnesses for the prosecution are P.Ws.1 & 2, who are the parents of the victim and P.W.6 is the victim herself. Another important witness on whose version, the prosecution has placed reliance is P.W.5, who had accompanied the informant (P.W.1) to the Police Sttion when he had gone to lodge the report regarding the missing of his daughter.

11. It has been stated by P.W.1 states his daughter did not return on 11.02.2007 after having left their house around 4.30 p.m. He has further stated that on the next morning around 8.00 a.m., a phone call was received in his mobile from an unknown person CRLA No.785 of 2017 {{ 8 }} demanding a sum of Rs.50,000/- (Rupees Fifty Thousand), in order to release her daughter (P.W.6) and it is said that his daughter then told him that they (not named nor described by any other manner) had taken her and she then requested P.W.1 to fulfill their demand. He, however, states that he received another call from that very person asking for payment of Rs.25,000/-. It is his evidence that such unknown person had threatened P.W.1 with dire consequences if he would inform the matter to the police. He has further stated that responding to the call, he went in a scooty to a place on the ring road behind Samleswari Temple. It has been further stated by him that at that time, two culprits covering their face with clothes and asked him to keep the cash on the seat of that scooty, which he did and that they having taken away the said sum, left the victim (P.W.6) at Ainthapalli. This witness nowhere has stated that any information was given to him that his daughter9s wife would be at stake or that she would be killed or hurt in the event of failure on his part to comply the demand of payment of Rs.50,000/-, while being reduced to later Rs.25,000/-. He rather says that threat was given to him if he would disclose the matter to the police. He is also not saying that his daughter (P.W.6) when talked with her over phone and while stating them that she had been brought by them (culprits) and requested him to fulfil their demand, she had not CRLA No.785 of 2017 {{ 9 }} stated that she apprehend any danger to her body or life in the hands of the accused persons.

12. The evidence of P.W.2, the mother of the victim is also in the same line. It is stated by her that P.W.1 received a call from sone unknown person, who demanded cash of Rs.50,000/- as ransom for releasing the victim (P.W.6) and subsequently the quantum of ransom was reduced to Rs.25,000/-. Both these witnesses are not stating that the victim (P.W.6) had ever stated either the names of this accused and the other or had given any sort of description in respect of them.

13. It has been stated by P.W.5 that the victim (P.W.1) received the anonymous telephone call in his presence and thereunder, the ransom was demanded for release of his daughter, who had been kidnapped. He is silent that by that call, any threat to the body or life of the daughter of P.W.1 had been so communicated to P.W.1 nor that victim (P.W.6) had spoken anything to P.W.1 during that call or subsequent thereto expressing any danger to her body and life at the hands of the accused persons. His evidence is that P.W.1 told him on the next day that as the life of his daughter (P.W.6) was in danger, he would be paying ransom for release of his daughter (P.W.6) and that he did. CRLA No.785 of 2017 {{ 10 }}

14. P.Ws.1, 2 & 3 are not stating to have known this accused. P.W.6, the victim, has stated her age to be 18 years in the year 2008 and therefrom, her age at the time of incident is ascertained to be 17. She has stated that this accused and the other came in a motorcycle, asked her to go for a ride and then, took her in that motorcycle. Nowhere, this P.W.6 is complaining that any force was applied to her for riding the motorcycle and sitting as a pillion rider or that she was so compelled that finding no alternative to save her from their clutch, she had to sit. It is further stated by her that she first rode the motorcycle at G.M. Complex of Golchakar, Brajarajnagar and from there, she was taken to Kolabira road. She states that having stopped the motorcycle near the jungle, this accused showed her a chaku and threated not to shout by saying that if she would do so, she would be killed. It is her further evidence that she was taken to the house of the maternal uncle of this accused at Babupara and on the next morning, she was brought to Jharsuguda town. It thus reveals that P.W.6 has travelled quite a long distance from place to place and nowhere had made any attempt to escape nor does she says that having made any such attempt, she became unsuccessful for the positive action from the side of the accused persons. CRLA No.785 of 2017 {{ 11 }}

15. At the same time, the witness says that during her stay in the lonely house at Sambalpur, this accused and the other had never been cruel to her and treated her as such. She has further stated that this accused told her father (P.W.1) that they had kidnapped her and unless he would pay them a ransom of Rs.50,000/-, they would be killed. Here also, this P.W.6 is not stating that this accused had told that unless the ransom was paid by her parents in fulfilling their demand, she, the victim (P.W.6), would be killed. She also states to have never told her father (informant-P.W.1) that there was any threat to her body and life. She simply says that accused Israr was standing behind her holding a chaku. But, then it is not stated that under that threat, she was compelled to tell P.W.1 to meet the illegal demand of the accused persons. It is her evidence that this accused and the other left her alone near Laxmi Talkies chhak of Sambalpur and therefrom she informed her father over phone requesting him to take her with him. She is also not stating anything about the factum of payment of Rs.25,000/-. The friends of the victim, who have been examined as P.Ws.7 & 10, have not whispered a word against this accused and so also an independent witness (P.W.8) has not supported the prosecution. CRLA No.785 of 2017 {{ 12 }}

16. The above obtained evidence with the circumstances, as discussed, in our considered view do not establish commission of offence under section 364-A of the I.P.C. In that view of the matter, we are of the considered view that the finding of the Trial Court that this accused is guilty for commission of the offence under section 364-A of the I.P.C. cannot be sustained and is liable to be set aside.

17. In the result, the appeal stands allowed. The judgment of conviction and order of sentence dated 20th November, 2017 passed by the learned Sessions Judge, Jharsuguda, in S.T. Case No.32/16/34/54 of 07/14/15 are hereby set aside. Since the accused, namely, Imtiaz Khan is in custody, he be set at liberty forthwith, if his detention is not wanted in any other case. Dr.S.K.Panigrahi, J I agree. (D. Dash) Judge (Dr.S.K.Panigrahi) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 22-Jun-2023 16:09:08 CRLA No.785 of 2017