Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 288

IN THE HIGH COURT AT CALCUTTA
CHITTA RANJAN DASH, PARTHA SARATHI SEN, JJ.
Tapashi Ghosh & Others - Appellant
Versus
The State of West Bengal - Respondent
CRA. Nos. 290 & 744 of 2005 & 364 of 2007 with IA Nos. CRAN 2 of 2006, 3 of 2010, 2 of 2014 & 5 of 2012 (Old Nos. CRAN 1978 of 2006, 159 of 2010, 3587 of 2014 & 2215 of 2012)
Decided On : 28-02-2023

Advocates appeared:
For the Appellants:Partha Sarathi Bhattacharyya, Advocate.
For the Respondent:S.G. Mukherji, Ld. PP., Prasun Kumar Datta , Z.N. Khan, Md. Kutubuddin , Advocates.

The ingredients of Section 364A IPC and the principles governing the proof of criminal conspiracy under Section 120B IPC.

Headnote:
Kidnapping - Conviction - Ingredients - Section 364A IPC - Applicability - Criminal Conspiracy - Section 120B IPC - Evidence.
Fact of the Case:

Three appellants were convicted under Sections 363, 364A, and 120B of the Indian Penal Code for kidnapping a boy and demanding ransom. The trial court found that the appellants had kidnapped the victim and threatened him with death if his father did not pay a ransom of Rs. 15 lakhs.
Finding of the Court:

The High Court held that the trial court was justified in convicting the appellants under Section 363 IPC but set aside the conviction under Section 364A IPC. The court held that the prosecution had failed to prove that the appellants had threatened the victim with death or caused him to apprehend that he would be killed if the ransom was not paid. The court also upheld the conviction under Section 120B IPC, holding that there was sufficient evidence to infer that the appellants had conspired to kidnap the victim.
Issues: 1. Whether the prosecution had proved that the appellants had threatened the victim with death or caused him to apprehend that he would be killed if the ransom was not paid? 2. Whether there was sufficient evidence to infer that the appellants had conspired to kidnap the victim?
Ratio Decidendi: 1. The ingredients of Section 364A IPC are: (i) kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction; and (ii) threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or; (iii) causes hurt or death to such person in order to compel the Government or any foreign State or any Governmental organization or any other person to do or abstain from doing any act or to pay a ransom. 2. To prove criminal conspiracy under Section 120B IPC, the prosecution must show that there was an agreement between the accused persons to commit an unlawful act or to do a lawful act by unlawful means.
Final Decision: The High Court set aside the conviction of the appellants under Section 364A IPC but upheld the conviction under Sections 363 IPC and 120B IPC.

JUDGMENT

Partha Sarathi Sen, J.

1. The instant three appeals arise out of a common judgement dated 24.02.2005 and order of sentence dated 25.02.2005 as passed by the learned Additional Sessions Judge, 5th Court, Barasat, North-24-Parganas, in Sessions Trial No. 2(2)2003 arising out of Sessions Case No.30(9)2002 whereby and whereunder the said trial court found the present three appellants and one Biswanath Dey guilty under Sections 363/364A/120B of the Indian Penal Code and thus sentenced all the aforementioned convicts to suffer R.I for 7 years each and to pay a fine a of Rs.2000/- each i.d to suffer S.I for 2 months more each for the offence committed by them under Section 363 IPC. By the self same judgement the said trial court also sentenced the said four convicts to suffer imprisonment for life each and to pay a fine of Rs.5000/- each i.d to suffer S.I for five months each for committing the offence by them under Section 364A and the said four convicts were further sentenced to suffer R.I for 6 months each and to pay a fine of Rs.200/- each i.d to suffer SI for two days each for the offence committed by them under Section 120B of the Indian Penal Code.

2. Out of the aforesaid four convicts, three convicts except Biswanath Dey preferred the instant three appeals challenging the self same judgment and the order of sentence dated 24.02.2005 and 25.02.2005 respectively as passed by the learned trial court as referred to above.

3. Since all the three appeals have arisen out of the self same judgment and since in these three appeals identical questions of facts and laws are involved we propose to dispose of the instant three appeals by a common judgement.

4. For effective adjudication of the instant three appeals, the facts leading to initiation of the aforesaid Sessions Trial are required to be dealt with in a nutshell.

5. One Subhasish Das lodged a written complaint dated 14.04.2002 with the O/C of Nimta Police Station stating, inter alia, that he along with some of his neighbours and accused persons namely Bidyut Mallick, Bharti Gayen, Tapashi Ghosh and Biswanath Dey along with his son Sandipan Das arrived at the said Police Station and stated that on the self same day i.e. on 14.04.2002 in the afternoon his son Sandipan Das, was playing with his friends by the side of his home. It has further been contended by the de facto complainant that at about 5:15 pm on the said day his son’s friend, one Dhrubo informed him that his said son Sandipan Das was forcefully kidnapped by two men and two women and thereafter fled away by riding a car having registration no. WB26A/0951. It has further been alleged that immediately after getting such information the matter was reported to his in-laws’ house at Barasat and at their factory at Duttapukur as well as to his relatives and friends. From the said written complaint it also reveals that the de facto complainant stated further that in course of search of his son, at about 6:10 pm one of his employees, viz.; one Biraj Chowdhury (PW7) informed him that the said vehicle was detained at Duttapukur, wherefrom his kidnapped son was recovered and the accused persons were kept detained. It has also been stated in the said written complaint that thereafter the de facto complainant and his neighbours rushed to his Duttapukur factory where he noticed that amongst the accused persons, his ex-employee Bidyut Mallick was there and on being asked, the accused persons disclosed their names and they also stated that one Dipankar Saha was also with them who fled away in the mean time and on being further asked, the accused persons disclosed to them that they had hatched up a plan to kidnap Sandipan and to keep him detained in the house of accused Bharti Gayen for claiming ransom of Rs. 10/15 lakhs.

6. On the basis of such written complaint, Nimta P.S Case No. 28 dated 14.04.2002 under Sections 363/364A/120B IPC was started. Investigation was taken up and on completion of the same charge sheet under Sections 363