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2020 Supreme(Jhk) 962
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Shree Chandrashekhar, Ratnaker Bhengra, JJ.
Md. Aslam, son of Late Md. Hanif – Appellant
Versus
The State of Jharkhand - Respondent
Criminal Appeal (D.B.) No. 882, 1035, 941 of 2012 & 798 of 2014
Decided On : 21-10-2020
Advocate Appeared:
For the Appellant : Naveen Kumar Jaiswal
For the Respondent: Sanjay Kumar Srivastava, APP, Mrs. Priya Shrestha, Spl. PP
Headnote:
Evidence Act – Section 134 – Indian Penal Code, 1860 – Section 364, 414 – Code of Criminal Procedure, 1973 – Section 164, 313 – Arms Act – Sections 25(1-B) a, 26 and 35 – False Implication – Appellants have been convicted and sentenced to R.I for life and a fine each under section 364-A of Indian Penal Code – Sessions Judge has held that failure of prosecution to hold TIP would not by itself disprove prosecution case, defense could not elicit any material to challenge credibility of witnesses and nothing has been shown to infer false implication of accused persons. – Judge has held that facts established during trial would prove that chain of evidences is so complete as not to leave any reasonable ground to doubt complicity of accused persons in occurrence – Held, Section 313 of Code of Criminal Procedure is founded on principle that every individual has an inherent right to defend himself. – In early days a prisoner was protected from questioning during trial and only after defense evidence was closed a prisoner was asked if he had to say anything but at same time he was also warned that whatever he says will be taken down and may be given in evidence in trial. – After introduction of inquisitorial trial accused was subjected to searching examination during trial, but, soon vices of inquisition were realized and Criminal evidence Act, 1898 was enacted in England. – Code of Criminal Procedure 1861 introduced in India contained some scope of inquisition during examination of accused and finally provisions relating to examination of accused were codified under section 342. – Code of Criminal Procedure, 1973 has reproduced section 342 of old Code except provision relating to drawing of adverse inference against accused if he refuses to answer question or gives a false answer. – Provisions under section 313 of Code of Criminal Procedure are imperative in nature. – Where trial is conducted otherwise in a fair manner, charge was spelt out clearly to accused, evidence is taken in his presence and witnesses were cross-examined as defense wanted to do, a ground of violation of principles of fair trial that inculpatory materials were not brought separately to notice of accused would not avail any benefit to accused. – After all, very purpose of a trial is to find guilty and punish him. – A cryptic examination of accused under section 313 of Code of Criminal Procedure by putting "one liner" question, such as, "have you seen prosecution evidence which says that on such and such date you have committed murder of X by gunshot" cannot be appreciated, but, in end court would say that except in very exceptional cases this situation would at best be a point for consideration on question of sentence, where court has discretion. – Court hold that no prejudice was caused to appellants during trial and charge under section 364-A IPC has been proved beyond reasonable doubts. – Criminal Appeal Dismissed
JUDGEMENT :
Shree Chandrashekhar, J.
On 11.03.2011, in the early morning Dr. Lalit Jain left home for a morning walk. When he did not come back home by 07:30 AM his family started making inquiries about him. At about 08:45 AM he called his family and told them that he would be back home soon. He called again at 09:40 AM and asked to arrange Twenty lakh rupees for paying ransom. He came back home the same evening and two days thereafter the accused persons who had come to Gandhi Maidan for collecting the ransom amount were nabbed by the police. They made disclosure before the police and confessed their involvement in the crime. After Dr. Lalit Jain had gone missing on 11.03.2011 his nephew lodged a report with the police and on the basis of the fardbeyan of Vivek Vinayak, Sadar P.S Case No.148 of 2011 was lodged on 12.03.2011 under section 364-A of the Indian Penal Code, against unknown. During the investigation statements of Masood Naiyar and Dr. Lalit Jain were recorded under section 164 of the Code of Criminal Procedure and after the investigation a charge-sheet was laid against Md. Aslam, Manoj Kumar @ Babloo, Md. Noor and Md. Raju @ Afroz and they have faced the trial on the charge of kidnapping Dr. Lalit Jain for ransom. During the trial the prosecution has examined six witnesses to prove the charge under section 364-A of the Indian Penal Code against them and after the prosecution evidence was closed the learned trial Judge has examined the accused persons under section 313 of the Code of Criminal Procedure.
2. In S.T. No. 556 of 2011 the appellants have been convicted and sentenced to R.I for life and a fine of Rs.5,000/- each under section 364-A of the Indian Penal Code. The learned Sessions Judge has held that failure of the prosecution to hold TIP would not by itself disprove the prosecution case, the defense could not elicit any material to challenge credibility of the witnesses and nothing has been shown to infer false implication of the accused persons. The learned Judge has held that the facts established during the trial would prove that the chain of the evidences is so complete as not to leave any reasonable ground to doubt complicity of the accused persons in the occurrence.
3. PW-1, the informant has deposed in the Court that on 11.03.2011 his uncle like any other day had gone for a morning walk at about 05:00 am but he did not come back home by 07:30 am. On inquiry from others who were his companion over morning walk he was told that his uncle did not come for walk today. At about 08:45 am his uncle called on the landline telephone at home and said that he is fine and would come back home shortly. After about one hour he called again from his mobile no.9955500606 and asked to arrange a ransom amount of Twenty lakh rupees immediately. In his cross-examination PW-l has stated that he does not know the place from where his uncle had called and he has also admitted that his uncle did not disclose name of the abductor. PW-3 has not supported the prosecution case and in the Court he has not identified the appellants as the abductors of Dr. Lalit Jain. However, he admits that his statement under section 164 of the Code of Criminal Procedure was recorded by the Magistrate and he has put his signature on his statement after having read and understood the contents thereof. During cross-examination by the defense he has stated that he was brought to the Court for recording his statement by the police and he has given statement at the instance of the police. At this stage we may indicate that evidence of a hostile witness in cross-examination by the defense is in the realm of hearsay and not admissible in evidence. PW-4 and PW-5 are the Magistrates who have recorded statement of PW-2 and PW-3 under section 164 of the Code of Criminal Procedure. They have deposed in the Court that on the direction of the Chief Judicial Magistrate they have recorded statement of the witnesses under section 164 of the Code of Criminal Procedur
