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Saturday, May 16, 2015

As far as Sanjay Mahto (A4) is concerned, he is also a vegetable vendor in Paswan Chowk Market. Though the circumstances that he has also persuaded PW8 to pay the ransom amount to kidnappers and also accompanied PW8 to Sonepur to pay the ransom amount to the kidnappers, Sanjay might have accompanied PW8 as a bonafide helper. Neither any recovery was made from Sanjay nor any incriminating evidence is available against him. So far as Sanjay Mahto (A-4) is concerned, though there may be strong suspicion about his involvement in the commission of the offence, suspicion however strong it may be, cannot take the place of proof. The case against Sanjay (A-4) is not proved beyond reasonable doubt and his conviction is liable to be set aside.


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPEAL NO.1831 OF 2011

RANJEET KUMAR DAS                                   ..Appellant

STATE OF BIHAR                                               ..Respondent
                    CRIMINAL APPEAL NOS.1820-1821 OF 2013

PANDIT @ SANJAY MAHTO ETC.                     ..Appellants
STATE OF BIHAR                                        ..Respondent
                      CRIMINAL APPEAL NO. 1817 Of 2013

STATE OF BIHAR                                      ..Respondent

                               J U D G M E N T


These appeals are directed against the judgment dated 11.10.2010  passed  by
the Patna High Court  in    Criminal  Appeals  (DB)  No.268/2008,  357/2008,
451/2008, No.156/2008 and Death Reference No.6/2008, in and  by  which,  the
High Court dismissed the appeals filed by  the  accused  persons  confirming
the verdict of conviction on the charge of murder  of  five  years  old  boy
Vicky and dismissed the death reference by converting the death sentence  of
Chintoo Singh (A-5) into life imprisonment.
2.          On 27.02.2006, Sunil Kumar  Singh-PW8,  a  vegetable  vendor  in
Paswan Chowk, lodged a complaint stating that his son Vicky aged five  years
was playing near PW8’s vegetable shop  and  Rubi  Kumari  aged  seven  years
sister of the victim boy Vicky was also playing with him.  At that time  two
unknown persons [later  identified  as  Chintoo  Singh  (A-5)  and  Birendra
Bhagat (A-3)] offered chocolates to Vicky and other children and  took  away
Vicky saying that they would come back and drop the boy;  but the boy  Vicky
did not come back.  On  the  above  complaint  on  28.02.2006,  a  case  was
registered as P.S. Case  No.105/2006  at  Hazipur  Town  (Industrial  Area),
Police Station, Vaishali.  Inspite of search, the missing boy could  not  be
traced.  After 5-6 days passed, Ranjeet Kumar Ram (A-1)  and  Sanjay  (A-4),
who were also vegetable vendors in the same market  i.e.  at  Paswan  Chowk,
told PW8 that his son would come back if he would pay money.   Nearly  after
three months of the incident, on 23.06.2006, PW8 received a phone  call  and
the kidnappers demanded a ransom of four lakh rupees for return of his  son;
but PW8 expressed his helplessness to meet the demand, and  the  demand  was
reduced to two lakh rupees. Another telephone call was received  by  PW8  on
1.07.2006 and the final amount of ransom was  fixed  for  Rs.1,05,000/-.  On
3.07.2006, PW8 received another call from the kidnappers  and  PW8  informed
them that he has arranged the ransom money and PW8 was asked  to  bring  the
money at New Gandak Bridge ahead of Line Hotel of Bachcha Babu  at  Sonepur.
When PW8 expressed fear in coming alone with money,  he  was  instructed  by
the kidnappers to come with his neighbours Ranjeet Kumar     Ram  (A-1)  and
Sanjay (A-4).
3.          In order to pay the ransom money, PW8 had withdrawn  Rs.80,000/-
from his Savings Bank account with Bank of India at Rajendra Chowk,  Hazipur
and PW-8 arranged balance money from his own  savings  and  borrowings  from
his father-in-law. On 4.07.2006, PW8 wrapped the ransom amount in a  plastic
bag and kept it in a gunny bag under  the  carrier  of  his  cycle  and  PW8
accompanied by Ranjeet Kumar Ram (A-1) and Sanjay (A-4)  and  Sanjeet  (A-2)
proceeded to the place as instructed by the kidnappers.  When  they  reached
the New Gandak Bridge, Sanjeet (A-2) got down  from  PW8’s  cycle  and  went
inside a hut on the left side of the road and PW8  followed  him.   At  that
time two persons came out and pulled away the  money  from  the  carrier  of
PW8’s cycle.  Sanjeet (A-2) informed PW8  that  his  brother-in-law-Birendra
Bhagat (A-3) lives in that hut and PW8 was informed that his  son  would  be
returned by evening.  Even after payment of  the  money,  the  boy  was  not
returned.  To inquire about the boy,  PW8 went to the hut  and  learnt  from
the local people that Birendra   Bhagat (A-3) is a criminal  and  the  other
person was identified as Chintoo Singh (A-5). On  16.08.2006,  PW8  informed
the investigating officer-Reeta Kumari (PW12),  the  names  of  the  accused
persons and also about the demand and payment of money to the kidnappers.
4.           Investigating Officer (PW-12) conducted a raid at  Sonepur  and
arrested Ranjeet Kumar Ram  (A-1)  and  Sanjeet  (A-2)  and  recorded  their
statement.   Based  on  the  statement   of   Ranjeet   Kumar   Ram   (A-1),
investigating officer recovered  a  currency  note  of  five  hundred  rupee
containing the name of Sunil Kumar Singh-PW8, written in green  ink  in  the
handwriting of PW8, from the house of Ranjeet Kumar     Ram(A-1),  which  is
recorded in the  seizure  list  (Ex.18).  Thereafter,  the  accused  persons
Sanjay (A-4), Birendra  Bhagat (A-3)  and  Chintoo  Singh  (A-5)  were  also
arrested and their statements were recorded. Investigating Officer-PW12,  on
the basis of statements went to Fakuli Out-Post and  learnt  about  recovery
of dead body of a boy aged 4-5 years near the culvert of Bhagwanpur  village
wherein (Fakuli OP) P.S. Case  No.128/06  dated  22.04.2006  under  Sections
302, 201 and 34 IPC was registered. PW12 obtained  from  Fakuli  police  the
seizure list relating to recovery of vest and half pant of deceased boy  and
his photograph. From the photograph shown to PW8,  he  identified  the  dead
body of child as well as clothes, as that of Vicky. After the completion  of
the investigation, PW-12 filed the chargesheet against  five  accused  under
Sections 364A, 302/34, 120B and 201 IPC.
5.          To  bring  home  the  guilt  of  the  accused,  prosecution  has
examined fourteen witnesses and exhibited documents  and  material  objects.
When questioned under Section 313 Cr.P.C., the accused denied  incriminating
evidence and circumstances put against them.   Defence  has  examined  seven
defence witnesses.
6.           Vide  judgment  dated  24/28.01.2008,  the   First   Additional
Sessions Judge, Vaishali at Hazipur convicted the accused Chintoo Singh  (A-
5) and Birendra Bhagat (A-3) under Section 364A IPC and  sentenced  them  to
undergo rigorous imprisonment for life with fine  of  Rs.10,000/-.  For  his
conviction under Sections 302/34 IPC, Chintoo Singh (A-5) was awarded  death
sentence.  Sanjeet (A-2), Ranjeet Kumar Ram  (A-1)  and  Sanjay  (A-4)  were
convicted  under  Section  364A/120B  IPC  and  were  sentenced  to  undergo
rigorous imprisonment for life and were imposed a fine of rupees Rs.10,000/-
 each with default clause. Further, Ranjeet  Kumar Ram (A-1),  Sanjay  (A-4)
and Birendra Bhagat (A-3) were convicted under Section 302/34 IPC  and  were
sentenced  to  undergo  rigorous  imprisonment  for  life  with  a  fine  of
Rs.10,000/- each with default clause.  The  sentences  imposed  on  Birendra
Bhagat (A-3), Ranjeet Kumar Ram (A-1) and Sanjay (A-4) were ordered  to  run
7.          Being aggrieved by the  verdict  of  conviction,  accused  filed
Criminal Appeals No. 268/2008, 357/2008, 451/2008 and 156/2008 in  the  High
Court of Patna. For  confirmation  of  death  sentence  awarded  to  Chintoo
Singh(A-5), State filed Death Reference  Case  No.6/2008.   The  High  Court
vide common impugned judgment dated 11.10.2010, dismissed the appeals  filed
by the accused persons and thereby confirmed  the  conviction  and  sentence
imposed on accused A-1, A-3 to A-5.  The  High  Court  converted  the  death
sentence awarded to Chintoo Singh (A-5)  as  life  imprisonment.   Accepting
the defence plea of alibi, the High Court acquitted 2nd  accused–Sanjeet  in
Criminal Appeal (DB) No.249/2008.  In these appeals, appellants  assail  the
correctness of the verdict of the conviction and sentence imposed on them.
8.          Learned counsel for the appellants contended  that  Rubi  Kumari
(PW2) aged seven years, daughter of PW8, the key witness has not  implicated
Ranjeet Kumar Ram (A-1)  and  in  her  statement  she  has  identified  only
Birendra Bhagat (A-3) and PW2 being  a  child  witness  her  sole  testimony
cannot form  the basis for conviction.  It was submitted  that  Sunil  Kumar
Singh (PW8) on his own has requested Ranjeet Kumar   Ram(A-1) and Sanjay (A-
4) to accompany him to pay the alleged ransom and merely  because  A-1,  A-2
and A-4  accompanied  PW8,  they  are  being  falsely  implicated.   Learned
counsel for Chintoo Singh (A-5) submitted that in  the  test  identification
parade,  PW2  has  not  identified  Chintoo        Singh   (A-5)   and   her
identification of A-5 in the open court is  unreliable  and  without  proper
appreciation of the flaws in the prosecution case,  courts  below  erred  in
convicting the accused.
9.          Per contra, learned  counsel  appearing  for  the    respondent-
State  contended  that  the   sole   eye-witness-Rubi   Kumari   (PW2)   has
satisfactorily  identified  accused-Birendra  Bhagat  (A-3)  in   the   test
identification parade and while she  was  examined  in  the  court  she  has
identified Chintoo Singh (A-5).  It  was  submitted  that  PW8  has  clearly
deposed that Ranjeet Kumar  Ram  (A-1),  Sanjay  (A-4)  in  conspiracy  with
Birendra Bhagat (A-3), Chintoo  Singh  (A-5),  induced  him  to  pay  ransom
money, even when  no  such  demand  was  made,  which  clearly  shows  their
involvement in the commission of the offence.  It  was  submitted  that  the
kidnappers asked PW8 to bring Ranjeet Kumar  Ram  (A-1),  Sanjay  (A-4)  and
that they accompanied PW8 to pay the money which proves  the  complicity  of
accused Ranjeet Kumar Ram (A-1) and Sanjay  (A-4) in the commission  of  the
offence and upon proper  appreciation  of  evidence,  courts  below  rightly
convicted the appellants for the offence under Sections 302/34,  364A,  120B
and 201 IPC and  the  concurrent  findings  recorded  by  the  courts  below
warrant no interference.
10.         We  have  considered  the  rival  contentions  and  perused  the
impugned judgment, evidence and material on record.
11.         Sunil Kumar Singh (PW8)  and  his  wife  Nilam  Devi  (PW6)  are
vegetable vendors in Paswan Chowk Market, Hazipur.  Ranjeet Kumar Ram  (A-1)
and Sanjeet (A-2) [since acquitted] are  brothers  who  are  also  vegetable
vendors in the same market having shop situated nearby the shop of  PW8  and
Birendra Bhagat (A-3) is their brother-in-law. In her evidence,  PW6  stated
that first accused and his brother Sanjeet were jealous of them as  PW8  had
good business.  Though jealousy is suggested as a  motive,  but  it  appears
that the commission  of  murder  of  victim  boy  Vicky  is  mainly  due  to
kidnapping for ransom.
12.         Key witness PW2-Rubi Kumari is  aged  seven  years  and  is  the
sister of the deceased  boy  Vicky.    PW2  deposed  that  on  the  date  of
incident i.e. 27.02.2006, PW2 was playing around the  place  where  PW8  was
selling the vegetables. PW2 stated that two persons came on  a  motor  cycle
and gave chocolate to the children including PW8’s son Vicky and made  Vicky
to sit on the tank of the motor cycle and took him away.   PW2  stated  that
the man who took her brother-Vicky told that he would  come  back  and  drop
her brother. Rubi Kumari (PW2) identified Birendra Bhagat (A-3)  during  the
test identification parade and in the court she identified Chintoo Singh (A-
5) as the person who offered chocolate to her and to her  brother  and  took
him away.  Inspite of searching cross-examination, PW2  remained  consistent
throughout her cross-examination.
13.         On behalf of Chintoo Singh (A-5), it was  contended  that  PW2’s
testimony is not reliable as she has not  identified  Chintoo  Singh  during
the test identification parade and  that  PW2’s  identification  of  Chintoo
Singh (A-5) in the court was not reliable.  Identification  of  the  accused
by the witness soon  after  the  former’s  arrest  is  of  course  important
because it lends assurance to the prosecution, in addition to  corroboration
of the evidence of the witnesses. As noticed  earlier,  in  the  open  court
during the trial, Rubi Kumari (PW2) identified Chintoo Singh (A-5)  and  she
has not identified him in the test identification parade  conducted  in  the
prison.  Ordinarily, courts do not give much credence to the  identification
made in the court for the first time; but the identification of the  accused
for the first time in court is permissible in law.   But the said  principle
has to be applied in the facts and circumstances of each  case.   While  PW2
was examined in the court, trial court which had the opportunity  of  seeing
and observing demeanour of PW2 found her version identifying  Chintoo  Singh
(A-5) trustworthy and we see no reason to take a different view.
14.         At the time of occurrence, as well,  while  deposing  in  Court,
Rubi Kumari (PW2) was aged only seven years.  Evidence of the child  witness
and its credibility would depend upon the circumstances of each case.   Only
precaution which the court has to bear in mind while assessing the  evidence
of a child witness is that the witness must be a reliable one.   Before  PW2
was examined as a witness in the court during  trial,  her  statement  under
Section 164 Cr.P.C. was recorded by the Judicial Magistrate (PW13).  In  his
evidence PW13 has stated that he tested the understanding  of  witness  Rubi
Kumari (PW2) and after being satisfied  about  her  understanding,  recorded
her statement under Section 164 Cr.P.C.  When PW2 was examined as a  witness
in the court  during  trial,  the  trial  judge  had  also  put  preliminary
questions to the child witness Rubi Kumari (PW2) and satisfied that she  was
capable of understanding the questions put to her.   When  the  trial  court
has ascertained the discernment of PW2 and has formed an opinion  that  PW2-
Rubi Kumari is competent to testify and then recorded her evidence,  we  see
no reason  to  discredit  PW2’s  testimony.  PW2  though  sole  witness,  by
concurrent findings courts below found  her  evidence  unassailable  and  we
find no ground to take a different view.
15.         On 4.7.2006, PW8 wrapped the ransom amount in a plastic bag  and
kept it in a gunny bag under the carrier of his  cycle  and  accompanied  by
Ranjeet Kumar Ram (A1), Sanjeet (A-2) and Sanjay (A-4), PW8 went to pay  the
ransom amount to the  kidnappers.  When  they  reached  New  Gandak  Bridge,
accused-Sanjeet (A-2) got down from the cycle and went  inside  the  hut  on
the left side of the road and PW8 followed him.  At that time,  two  persons
came out of the hut and took away  the  money  from  the  carrier  of  PW8’s
cycle. In the test identification parade, PW8 identified Chintoo  Singh  (A-
5) and Birendra Bhagat (A-3) as the persons who took away ransom money  from
the carrier of his  cycle.  The  evidence  of  PW8  amply  corroborates  the
evidence of PW2 as to the complicity of Chintoo  Singh  (A-5)  and  Birendra
Bhagat (A-3) in the offence.
16.         Evidence of Rubi Kumari  (PW2)  coupled  with  the  evidence  of
Sunil Kumar Singh (PW8) clearly  establishes that the accused Chintoo  Singh
(A-5) and Birendra Bhagat (A-3) kidnapped PW8’s son Vicky and PW8  informant
paid  Rs.1.05,000/- to them as ransom  amount.   On  the  evidence  of  PW2,
courts below rightly recorded concurrent findings that the  prosecution  has
established that deceased boy Vicky was last seen alive in  the  company  of
accused Chintoo Singh (A-5) and  Birendra  Bhagat  (A-3).   It  is  for  the
accused to explain how and when they parted company of  the  deceased  child
Vicky.  Absolutely, there is no explanation  forthcoming  from  the  accused
which is a strong militating circumstance against the accused Chintoo  Singh
(A-5) and Birendra Bhagat (A-3) which indicates that  they  are  responsible
for the crime.  This is further fortified by the evidence of PW8 who  stated
that the accused Nos.3 and 5 had snatched the money kept in the  carrier  of
his cycle, when he was near the hut of Birendra Bhagat (A-3).
17.         Based on the statement of  Chintoo  Singh  (A-5)   and  Birendra
Bhagat (A-3), investigating officer- Reeta Kumari  (PW12) went   to   Fakuli
O.P. and learnt  that  the  body  of  a   deceased  boy   was  recovered  on
22.4.2006 beneath the pulia   in  between  Bhagwanpur-Bahadurpur  road   for
which  F.I.R. in  (Fakuli OP) P.S. Case No.128/2006  dated  22.4.2006  under
Sections 302, 201  IPC  read  with  Section  34  IPC  was  registered.  PW12
received the clothes (material Ext.11), photographs of the deceased boy  and
PW8 has identified the said clothes (material Ext.11) as  that  of  his  son
and  also  photographs  (Ext.3  &   3/1)   as   of   deceased   boy   Vicky.
Identification of clothes recovered from the body of  deceased  boy  beneath
the pulia and identification of the photographs  and  knowledge  of  accused
No.3 and as to the place of dead body is a  strong  militating  circumstance
against the accused Chintoo Singh (A-5) and Birendra Bhagat (A-3).
18.         Learned counsel for the accused Chintoo Singh(A-5) and  Birendra
Bhagat (A-3) contended that the alleged disclosure statement of the  accused
is hit by Section  25  of  the  Evidence  Act  which  makes  the  disclosure
statement  inadmissible and the statement recorded from the accused did  not
lead to disclosure of  any fact  so as to make it admissible  under  Section
27 of the Evidence Act and there is nothing to connect the accused with  the
dead body of a boy recovered from beneath  the  pulia   in  connection  with
(Fakuli OP) P.S. Case No.128/2006.   It  was  submitted  that  the  link  to
connect  the accused with the murder of deceased boy Vicky is  missing   and
that the confession  statement  of  accused  Chintoo       Singh  (A-5)  and
Birendra Bhagat (A-3) recorded by  police  is  not  admissible  in  evidence
which was not kept in view by the courts below.
19.         So far as  the recovery of dead body of boy  under  the  culvert
between Bhagwanpur and Bahadarpur road is concerned, as noticed  earlier,  a
F.I.R. was registered in (Fakuli OP)  P.S. Case No.128/2006 dated  22.4.2006
under Sections 302, 201 IPC read with Section 34 IPC.  Though the  statement
recorded from the accused Chintoo Singh (A-5)  and  Birendra  Bhagat   (A-3)
did not lead to any recovery as admissible under Section 27 of the  Evidence
Act, their statement led to the disclosure of the details of the  dead  body
and registration of F.I.R. in (Fakuli  OP)  P.S.  Case  No.128/2006.  If  no
statement was recorded from the accused, place of the dead body of  deceased
boy would have remained unknown.
20.         So far as the contention regarding the  inadmissibility  of  the
statement recorded from the accused Chintoo Singh (A-5) and Birendra  Bhagat
(A-3), of course, the statement did not lead to the disclosure of  any  fact
as admissible under Section 27 of the Evidence Act.  Ideally  based  on  the
statement recorded from the accused, the investigating officer  should  have
taken the accused to the alleged place of occurrence which  would  have  led
to the disclosure of place of occurrence and omission to do so,  is  only  a
lapse in  the  investigation.   Even  if  it  is  accepted  that  there  was
deficiency  in  investigation  that  cannot  be  a  ground  to   doubt   the
prosecution version which is otherwise cogent and credible.
21.         It  is  well  settled  that  in  criminal  trials  even  if  the
investigation is defective, the rest of the  evidence  must  be  scrutinized
independently of the impact of the defects in  the  investigation  otherwise
the  criminal  trial  will  plummet  to  the  level  of  the  investigation.
Criminal trials should not be made casualties for any  lapses  committed  by
the            investigating  officer.  In State of M.  P.  vs.  Mansingh  &
Ors., (2003) 10 SCC 414, it was held that even if there was deficiencies  in
the investigation that cannot be a ground for discrediting  the  prosecution
version. The same view was reiterated in Sheo Shankar  Singh  vs.  State  of
Jharkhand And Anr., (2011) 3 SCC 654 and C. Muniappan & Ors.  vs.  State  of
Tamil Nadu, (2010) 9 SCC 567.
22.            We are not impressed with the arguments  advanced  on  behalf
of the accused Chintoo Singh (A-5) and Birendra Bhagat (A-3) that  there  is
nothing to connect the  accused  with  the  body  found  under  the  bridge.
Corpus delecti in some cases may not be possible to be traced or  recovered.
 If the recovery of a dead body is  an  absolute  necessity  to  convict  an
accused, in many cases the culprits  would  go  unpunished  as  the  accused
would manage to see that the dead body is destroyed or not  recovered.   Any
lapse in recovery of the dead body or missing link qua the  dead  body  will
not enure to the benefit of the accused.
23.         Upon appreciation of evidence of PW2 and PW8, the  courts  below
recorded cogent and concurrent reasonings  that   Chintoo  Singh  (A-5)  and
Birendra  Bhagat  (A-3),  for  kidnapping  the  boy  Vicky  for  ransom  and
committed murder and the conviction of  Chintoo  Singh  (A-5)  and  Birendra
Bhagat (A-3) under Sections 364A,  302 and 201  IPC  and  the  sentence   of
imprisonment  imposed on them cannot be interfered with.
24.         Conviction  qua  Ranjeet  Kumar  Ram  (A-1)  and  Sanjay  (A-4):
PW6–Nilam Devi and PW8–Sunil Kumar Singh, mother and father respectively  of
the deceased boy Vicky  are  the  vegetable  vendors  in  the  Paswan  Chowk
Market.  Ranjeet  Kumar  Ram  (A-1)  and  Sanjay  (A-4)  were  also  selling
vegetables in the same market.  In her evidence, PW6 stated  that    Ranjeet
Kumar Ram (A-1) and Sanjay (A-4) were jealous of PW6 and  PW8  as  in  their
vegetable shops they were having good business. PW8 in his  evidence  stated
that he was persuaded by Ranjeet Kumar Ram (A-1) and  Sanjay  (A-4)  to  pay
the ransom money and get back his son even when no such demand was  made  by
the kidnappers viz., Chintoo  Singh (A-5) and Birendra Bhagat (A-3).   After
number of phone calls, demand of ransom was  reduced  to  Rs.1,05,000/-  and
PW8 was asked to deliver the amount. PW8 categorically stated that  when  he
expressed fear of going alone, kidnappers told him over phone to  bring  his
neighbours Ranjeet Kumar     Ram  (A-1)  and  Sanjay  (A-4).   PW8  withdrew
Rs.80,000/- from his Savings Bank account with Bank  of  India  at  Rajendra
Chowk and Ext.5 is the Savings  Bank passbook of  PW8.   PW8  took  loan  of
Rs.20,000/- from his father-in-law Sakal Mahto and PW8  was  already  having
Rs.5,000/-.  In his evidence, PW8 stated that the amount he arranged was  of
denomination of five hundred rupees and in some of the  currency  notes,  he
has signed.  PW8 stated that he wrapped the ransom amount in a  plastic  bag
and kept in a gunny bag in the carrier of his cycle and  when  they  reached
New Gandak  Bridge, Sanjeet (A-2)  got down from his cycle and went  to  the
hut on  the left side of the road and when PW8 followed him,  Chintoo  Singh
(A-5) and Birendra Bhagat (A-3) pulled away money  kept  in  the  gunny  bag
from PW8’s cycle.  Only accused Ranjeet Kumar Ram  (A-1)  and  Sanjay  (A-4)
had the knowledge that the money was kept in the gunny bag  in  the  carrier
of cycle.  From the conduct of A-5 and A-3, it  appeared  as  if  they  were
already having knowledge about money being kept in  the  gunny  bag  in  the
carrier of the cycle of PW8 which only indicates prior meeting of  minds  of
the accused.
25.          Birendra Bhagat (A-3) is the brother-in-law  of  Ranjeet  Kumar
Ram (A-1).  Had there been no complicity of Ranjeet Kumar Ram (A-1)  in  the
commission of the offence, on knowing for the first time that  his  brother-
in-law Birendra Bhagat (A-3) was involved in the kidnapping,  Ranjeet  Kumar
Ram (A-1) must have been greatly shocked and he  must  have  questioned  his
brother-in-law Birendra Bhagat  (A-3)  as  to  why  he  had  committed  such
gruesome act of kidnapping his  neighbour’s son? But Ranjeet Kumar  Ram  (A-
1) had not reacted to the situation and he remained quiet.  His  conduct  in
not showing any reaction to his brother-in-law’s act of kidnapping of  PW8’s
son, which is not in consonance with natural human conduct. This conduct  of
first accused  coupled with the evidence that he has been persuading PW8  to
pay the money to kidnappers to get back his son leads  to  the  irresistible
inference that accused Ranjeet Kumar Ram (A-1) shared the  common  intention
with accused Nos.3 and 5 in kidnapping the child and committing murder.
26.         Recovery of five hundred rupee currency  note  (Ex.1)  from  the
house of Ranjeet Kumar Ram (A-1)  is  yet  another  link  strengthening  his
complicity in the commission  of  offence.  Pursuant  to  the  statement  of
accused Ranjeet Kumar        Ram (A-1),  currency  note  of  Rs.500/-  which
contained signature of PW8-Sunil Kumar Singh in green ink  was  seized  from
the house of first accused  under  Ext.1  seizure  list  (Ext.18).   PW4-Raj
Banshi Devi, a neighbour had spoken about the  recovery  of  Ext.1  currency
note of Rs.500/- from the house of accused No.1 and PW8 had  identified  his
signature on Ext.1 currency note.  Recovery of a part of ransom amount  from
the house of Ranjeet Kumar Ram (A1) is a determining  link   completing  the
chain of circumstantial evidence against Ranjeet Kumar Ram  (A-1),  pointing
to his guilt.
27.         Defence plea of accused Ranjeet Kumar Ram  (A-1)  is  that  some
time prior to the occurrence, there was an altercation between him  and  PW8
and at that  time  PW8-Sunil  Kumar  Singh  stated  that  he  would  falsely
implicate Ranjeet in a criminal case.  To prove the  defence  plea,  defence
witnesses Baiju Sharma and Budhan Paswan were examined as DWs 4 and 5.   The
defence plea that PW8 falsely implicated Ranjeet Kumar  Ram  (A-1)  and  his
family members in the offence of kidnapping and murder  of  his  son  defies
logic and rightly rejected by the trial court as well by the High Court.
28.         Direct evidence of common intention is seldom  available.   Such
common intention of the accused can only be inferred from the  evidence  and
circumstances appearing from  proved  facts  of  case.   In  furtherance  of
common intention, Ranjeet Kumar Ram (A-1) had been  persuading  PW8  to  pay
the ransom amount even before there was no such demand from  the  kidnappers
viz., Chintoo Singh (A-5), Birendra Bhagat (A-3).  Considering  the  act  of
Ranjeet Kumar Ram and the proved circumstances, courts  below  rightly  held
that  Ranjeet  Kumar  Ram  had  the  common  intention  of  kidnapping   and
committing murder of the boy Vicky and the courts  below  rightly  convicted
Ranjeet Kumar Ram (A-1) under Section 364A IPC and Sections 302/34 IPC.
29.         As far  as  Sanjay  Mahto  (A4)  is  concerned,  he  is  also  a
vegetable vendor in Paswan Chowk Market. Though the  circumstances  that  he
has also persuaded PW8 to pay the  ransom  amount  to  kidnappers  and  also
accompanied PW8 to Sonepur to pay  the  ransom  amount  to  the  kidnappers,
Sanjay might have  accompanied  PW8  as  a  bonafide  helper.   Neither  any
recovery was made from Sanjay nor any incriminating  evidence  is  available
against him.  So far as  Sanjay  Mahto  (A-4)  is  concerned,  though  there
may be strong suspicion about his  involvement  in  the  commission  of  the
offence, suspicion however strong it  may  be,  cannot  take  the  place  of
proof.  The case against Sanjay (A-4) is not proved beyond reasonable  doubt
and his conviction is liable to be set aside.
30.         Criminal Appeals No.1831/2011, 1817/2013 and  1821/2013:   These
appeals filed by Ranjeet Kumar Ram (A-1), Chintoo Singh (A-5)  and  Birendra
Bhagat (A-3) are dismissed.
31.         Criminal Appeal No.1820/2013: Conviction of Sanjay (A-4) is  set
aside and this appeal is allowed. He is acquitted of the charges and  he  is
ordered to be set at liberty forthwith if not required in any case.

                                           (T.S. Thakur)

      (R. Banumathi)

New Delhi;
May  15, 2015

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