Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Gau) 945

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Michael Zothankhuma, Malasri Nandi, JJ.
Ananta Debnath - Appellant
Vs.
The State Of Assam - Respondent
Crl.A(J) No. 34 of 2017
Decided On : 21-08-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. R Sarma, Amicus Curiae
For the Respondent: Ms. B Bhuyan, Addl. Public Prosecutor, Assam.

Point of Law: Prosecution has not been able to prove the guilt of the appellant beyond all reasonable doubt, for committing an offence under Section 364(A) IPC.

Headnote:
Indian Penal Code, 1860 - Sections 120(B)/365/364(A)/344/369 – Code of Criminal Procedure, 1973 - Section 313 - Kidnapping for ransom – Criminal conspiracy - Whether there was any kidnapping of boy or was it a case of wrongful confinement - Trial Court came to a finding that prosecution was able to prove that appellant had kidnapped boy, as he had been seen taking away boy and also had been seen with boy, at time of recovery of boy.(Para 20).
Finding of the court: Court does not find that a case under Section 364(A) IPC has been made out. On the basis of evidence adduced, Court hold that prosecution has not been able to prove guilt of appellant beyond all reasonable doubt, for committing an offence under Section 364(A) IPC - Court are of view that prosecution has been able to prove guilt of appellant, for having committed offence under Section 365 IPC.
Result: Ordered accordingly.

JUDGMENT AND ORDER :

M. Zothankhuma, J.

Heard Mr. R Sarma, learned Amicus Curiae appearing for the appellant. Also heard Ms. B Bhuyan, learned Additional Public Prosecutor, appearing for the State respondent.

2. The present appeal has been preferred against the judgment dated 01.03.2017, passed by the learned Sessions Judge, Kokrajhar in Sessions Case No. 33/2016, by which the appellant has been convicted under Section 364(A) IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 5,000/-, in default simple imprisonment for 3 (three) months.

3. The brief facts of the case is that an FIR dated 18.07.2015 was submitted by PW-1, who is the father of the kidnapped victim Manash Mazumdar, with the Officer-In-Charge of Kokrajhar Police Station, stating that at about 3:30 pm on 17.07.2015, the appellant had taken away his son by taking him for a walk. Despite searching for his whereabouts, they could not trace his son. He accordingly prayed that necessary action should be taken to recover his son.

4. Pursuant to the FIR, Kokrajhar P.S. Case No. 633/2015 under Section 365 IPC was registered.

5. During investigation of the case, 8 (eight) persons were initially arrested. Thereafter, the appellant was arrested on 30.07.2015, when he was with the boy Manash. The Investigating Officer (PW-7) thereafter submitted the charge-sheet, on having found a prima facie case under Sections 120(B)/365/364(A)/344/369 IPC against the appellant and the other 8 (eight) persons arrested earlier. Charge was framed against all the arrested persons under Section 364(A)/34 IPC, to which they pleaded not guilty and claimed to be tried.

6. The learned Trial Court thereafter examined 7 (seven) prosecution witnesses and after examination of all the accused persons under Section 313 Cr.PC, the learned Trial Court came to a finding that the appellant was guilty of having committed the offence under Section 364(A) IPC. However, the learned Trial Court acquitted all the other 8 (eight) co-accused persons, on coming to a finding that the prosecution had not been able to prove the guilt of the other co-accused persons.

7. The appellant’s counsel submits that out of the 7 (seven) prosecution witnesses, only the evidence of PW-1 (father of the victim) and PW-7 (Investigating Officer) are relevant to decide the case. He submits that as there is nothing to prove that a demand for ransom had been made by the appellant and that the abducted boy would be put to death or would have been hurt unless the ransom was paid, it could not be said that PW-1 (father of the boy) was under apprehension that the boy would be killed or hurt if ransom was not paid. As such, the provisions of Section 364(A) IPC would not be attracted in this case and at best, the appellant could have been convicted under Section 365 IPC.

8. The appellant’s counsel submits that the evidence of PW-1 shows that the appellant had been apprehended/caught by PW-1’s uncle, Madhab Mazumdar and another person named Chinmay Dey, when the appellant had brought the victim’s son to the Bangal Bazar, where PW-1 was to hand over Rs.50,000/- as ransom. The appellant was thereafter taken to the house of PW- 1 and a call was made to the Additional SP. Thereafter, the Police came to the house of PW-1 and took away the appellant. On the other hand, the evidence of PW-7 (IO) is to the effect that he had apprehended the appellant along with the victim boy, when the appellant was crossing a road along with the victim on 30.07.2015 in an auto rickshaw.

9. The appellant’s counsel submits that the contradictory stands taken by PW-1 and PW-7, with regard to apprehending the appellant, cast a doubt on the testimony of PW-1. Further, there being no proof with regard to any ransom being asked for by the appellant from PW-1 and as there is no evidence to the effect that ransom calls were made by the appellant to PW-1, Section 364(A) IPC could not be attracted to the case. He also submits that in the cross- examination of PW-1