Shoshit Kumar @ Suchit Kumar vs State of Bihar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Pat) 828

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and ALOK KUMAR PANDEY, JJ.
Criminal Appeal (DB) Nos. 665, 678, 773 of 2015 and 307 of 2016
(4.9.2023)
Shoshit Kumar @ Suchit Kumar (in 665)
Uday Kumar Mandal @ Uday Mandal (in 678)
Pankaj Mandal (in 773)
Barun Mandal (in 307) ... Appellants
vs.
State of Bihar ... Respondent

Advocates appeared:
For the Appellants : M/s Subodh Kumar Jha(in 665, 773); Prince Kumar Mishra, Pranav Kumar Jha (in 773); Indu Bhushan (in 773); Davendra Kumar Pandey (in 307).
For the State : Mr. D.K. Sinha, APP (in all).

Headnote:
Indian Penal Code, 1860—Section 364A/34—Appellants alleged to have kidnapped the victim boy for ransom—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 after fact which has been seen by the witnesses is the arrival of Uday in the village along with an unknown person, both of whom stayed in the village for a short while, where after both of them went away—there 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, which in punishable under Section 363 of the I.P.C. —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—there is but no material against 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 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 P.W. 6 (informant) 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 P.W. 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 reconstituting any investigation on that account—the appellant/Barun Mandal appears to have been put on trial only on the basis of confession of appellant/Shoshit Kumar—conviction of appellants/Shoshit @ Suchit Kumar and Barun Mandal held to be based on “no evidence” at all and set aside—conviction of appellants/Uday Kumar Mandal @ Uday Mandal and Pankaj Mandal is converted under Section 363 IPC and sentence reduced to 7 years as there is no evidence that the kidnapping was either for the purposes of maiming a minor to begging or for murdering him for obtaining ransom, thereby inviting the application of Sections 363A, 364 and 364A of the I.P.C. —appeals disposed of. (Paras 33 to 55)

Ashutosh Kumar, J. – 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 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 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.

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 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, chargesheet 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, Ses