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Judgment
Joymalya Bagchi, J
These appeals are directed against the judgment and order dated 25.03.2015 and 26.03.2015 passed by learned Additional Sessions Judge, 3rd Court, Krishnanagar, Nadia in Sessions Trial No. IV (Nov.) of 2013 arising out of Sessions Case No.21 (9) of 2013 convicting the appellants for commission of offence punishable under Sections 364A/34 of the Indian Penal Code and under Sections 302/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life each and to pay fine of Rs.50,000/- each, in default, to suffer rigorous imprisonment for one year more for the offence punishable under Section 364A/34 of the Indian Penal Code and to suffer rigorous imprisonment for life each and to pay a fine of Rs.50,000/-each, in default, to suffer rigorous imprisonment for one year more for the offence punishable under Sections 302/34 of the Indian Penal Code; both the sentences to run concurrently.
The prosecution case, as alleged against the appellants is to the effect that on 4.6.2013 at 10.00 a.m., a child aged around 2 years 11 months went missing while he was playing in front of his house. A missing complaint was diarised at the local police station being G.D.E. No.209 of 2013 dated 4.6.2013. On the next day at around 6.15 a.m., a phone call was received by Jagannath Bal, uncle of the missing boy (appellant in CRA 202 of 2015) on his mobile phone bearing No.8926235990 from a mobile bearing No.9093375161 threatening him that six persons had kidnapped the child and they would return him if a sum of Rs.2.5 lakhs was paid to them. Hearing this news, Balaram Bal, father of the child, P.W.1, lodged written complaint resulting in registration of Nakashipara Police Station Case No.513 of 2013 dated 5.6.2013 under Section 364A of the Indian Penal Code. On the next day i.e. 6.6.2013, I.O. Banibrata Dutta, P.W.19, received telephonic information that the dead body of the victim was found at Khidirpur Madhyapara. He diarised the said information and reached the spot. Dead body was found in a white plastic sack tied with a cord lying on the southern side of the vacant land of Mrityunjay Singha Roy of Khidirpur Madhyapara encircled with a brick fence. He held inquest over the body of the deceased and sent the same for post mortem examination. In the course of investigation, P.W.19 arrested one Bappa @ Subhajit Sanyal (juvenile accused) and seized the mobile phone bearing IMEI No.356853021213220 as well as a SIM card bearing subscriber No.9093375161. Bappa made a statement in the custody of police disclosing the roles of the appellants in kidnapping the child, secreting him in the residence of Rajesh Hari (appellant in C.R.A.134 of 2016), ultimately handing over the victim to appellant, Jagannath Bal and that the ransom call was made by Din Dayal Sinha @ Singha (appellant in C.R.A.341 of 2015). Similar statements were also made to police by Jagannath Bal who handed over his mobile phone with SIM bearing subscriber No.8926235990 which was seized under a seizure list and Din Dayal Sinha @ Singha who claimed that he would be able to show the room where they had secreted the victim and thereafter handed him over to Jagannath Bal. In conclusion of investigation, charge sheet was filed against the appellants and one Bappa @ Subhajit Sanyal, Raghunath Das and Param Hari. Cases of Bappa, Raghunath and Param Hari were segregated and sent to the Juvenile Justice Board for trial as they were juveniles in conflict with law. The case was committed to the Court of Sessions and transferred to the Court of the learned Additional Sessions Judge, 3rd Court, Krishnanagar, Nadia for trial and disposal. Charges were framed against them under Section 364A read with Section 34 of the Indian Penal Code and under Section 302 read with Section 34 of the Indian Penal Code against the appellants. They pleaded not guilty and claimed to be tried. In the course of trial though prosecution examined 23 witnesses, most of the witnesses including P.W.1, father of the deceased child turned hostile. However, the trial court on an analysis of evidence on record came to a finding of guilt against the appellants by the impugned judgment and order, as aforesaid.
Mr. Sandipan Ganguly, learned Senior Advocate along with Ms. Sreyashee Biswas, learned Advocate appearing for the appellant Jagannath Bal (in C.R.A.202 of 2015) argued there is no legally admissible evidence implicating his client in the alleged crime. None of the witnesses saw his client kidnap the child and complicity of his client appears to have transpired from the statements of the co-accused persons before a police officer which are inadmissible in evidence in the light of Section 25/26 of the Evidence Act. Merely because he received the ransom call from unknown persons cannot be a ground to implicate him in the conspiracy of kidnapping the child and thereafter murdering him. He also argued none of the witnesses claimed that they had identified the dead body of the missing child to the I.O. (P.W. 19).
Mr. Navanil De, learned Advocate appearing for the appellant, Rajesh Hari (In C.R.A.134 of 2016) submitted that no iota of evidence was led by the prosecution incriminating his client. Reliance on Ext.22 i.e. statement of co-accused Din Dayal Sinha @ Singha who purportedly pointed out a railway quarter allegedly belonging to him as the place where they had secreted the deceased child is not admissible in law. No incriminating article was recovered from the said place nor there is any independent evidence on record that he was the owner of the said room. Hence, there is any evidence to connect him with the alleged crime and his client ought to be acquitted.
Nobody appeared for the appellant Din Dayal Sinha @ Singha in C.R.A.341 of 2015. Mr. Ranadeb Sengupta, learned Advocate was, therefore, requested to assist the Court as amicus curiae. He adopted the submissions of the learned Advocates for the appellants and submitted that the trial court misconstrued the statement of appellant Din Dayal Sinha before the police officer being Exts.20 and 22 as admissible in law. Statements were self-incriminating and had been made before a police officer while the appellant was in custody. Hence, the statements are inadmissible in view of Sections 25/26 of the Evidence Act. No incriminating fact far less any article or object was discovered pursuant to such statements so as to render them admissible under Section 27 of the Evidence Act. Hence, the appeal is liable to be allowed.
On the other hand, Mr. Saibal Bapuli, learned Additional Public Prosecutor along with Mr. Bibaswan Bhattacharyya, learned Advocate argued that the minor child was kidnapped near his house pursuant to a conspiracy hatched between the appellants and their roles have been disclosed pursuant to the statements made by them to the investigating officer, P.W.19, during investigation. Mobile phone containing SIM card bearing subscriber No.9093375161 was recovered from juvenile accused Bappa @ Subhajit Sanyal corroborating the aforesaid statements and, therefore, the statements made by the accused persons before the police officer are admissible in law. They also submitted that the dead body of the victim was identified by witnesses before P.W.19 as would appear from the inquest report exhibited in the instant case.
I have gone through the evidence on record. Most of the witnesses have turned hostile and have not supported the prosecution case.
P.W.1, Balaram Bal, father of the deceased though declared hostile has admitted the first information report, Ext.1. It appears from his deposition that his two year eleven month old child had gone missing on 4.6.2013 at 10.00 hours while he was playing in front of his residence. He also deposed regarding a ransom call made on the mobile phone of his eldest brother Jagannath Bal bearing subscriber No.8926235990 from a phone bearing No.9093375161 by an unknown person claiming that six of them had kidnapped his child and would return him on payment of Rs.2.5 lakhs. P.W.1, however, did not admit his signature on the subsequent complaint purportedly lodged by him, Ext.11, at the time of holding inquest. He also denied identifying the body recovered by P.W.19 as that of his son. Faced with such situation, the trial court directed the witness to give his specimen signature and such specimen signature was sent for hand writing examination vide order dated 30.10.2014. Report of the hand writing Expert, Ext.23, however, does not support the prosecution case as the said Expert opined that the questioned signatures did not match the specimen writings.
None of the prosecution witnesses including P.W.2, Bittu @ Jatindra Nath Bal, brother of the victim and P.W.4, Tusi Bal, mother of the child who were present at the house when the child was kidnapped had incriminated the appellants by stating that they had kidnapped the child. Hence, there is no direct evidence that the appellants had kidnapped the child on 4.6.2013 while he was playing in front of the house.
P.W.6, Mandira Sanyal is the sister of juvenile accused Bappa. She deposed that her father Swapan Kumar Sanyal had a mobile set bearing No.9932733907.
P.W.7, Suraj Fakir who worked in the mobile shop of Kanai Chanda at Bethuadahari Rail Station, however, did not support the prosecution case that a SIM card had been handed over to the appellant Dindayal Sinha at the instigation of Bappa.
P.W. 19, Banibrata Dutta, Investigating Officer, produced the application form of one Asis Dey, son of Atindra Dey, bearing exhibit no. 24, for purchasing mobile SIM no. 8926235990 i.e. the mobile no on which the ransom call was received by appellant Jagannath Bal. He has also deposed that the mobile phone and the aforesaid SIM card were seized from Jagannath Bal under a seizure list bearing exhibit no. 15. P.W. 19 also produced the application form of Prabhat Kumar Halder in respect of mobile SIM No. 9093375161 i.e. the mobile number from which the ransom call was made. The said mobile number, however, was neither seized from Bappa, a juvenile accused nor from any of the appellants. However, mobile phone bearing SIM No. 9093375161 and mobile set bearing IMEI No. 356853021213220 were seized from Bappa i.e. Subhajit Sanyal under a seizure list bearing exhibit no. 14. He also deposed that the mobile SIM No. 9932739907 belonging to the father of the co-accused Bappa i.e. Swapan Kumar Sanyal was used in the same mobile set.
Evidence of P.W. 19 is corroborated by P.W. 21, Nodal Officer of Bharti Airtel Limited, P.W. 22, Nodal Officer of MTS Company, P.W 23, Nodal Officer of Idea Company.
P.W 21, Arijit Das, deposed that original mobile number i.e. mobile no. 9932739907 belongs to Swapan Kumar Sanyal.
P.W. 22, Barun Kumar Banerjee, deposed that MTS No. 8926235990 belongs to one Asis Dey and he also identified the application form bearing exhibit 36.
P.W. 23, Manas Ranjan Pattanaik, has identified the application form bearing exhibit 26 in respect of mobile no. 9093375161.
Analysis of the aforesaid evidence would show that the ransom call came from the SIM No. 9093375161. The aforesaid SIM number stood in the name of Probhat Kumar Halder who has neither been interrogated in the course of investigation nor cited as a witness.
Moreover, P.W. 7, Suraj Fakir, who worked in the mobile shop has not supported the prosecution case that the said SIM number had been taken from their shop by the appellant Dindayal Sinha @ Singha at the instance of Bappa. Hence, there is a clear snap in the chain of circumstances connecting the appellants with the possession and use of the aforesaid SIM card which was utilised for making the ransom call. Although mobile phone bearing SIM No. 8926235990 was seized from Jagannath Bal there is nothing to show that Jagannath Bal had entered into conspiracy with the caller who had made the ransom call on his phone. On the other hand, Jagannath Bal being the eldest uncle of the deceased, it is but natural that the miscreants who kidnapped the deceased had made a call on his mobile phone for demanding the ransom money.
I have in agreement with the submissions made by the learned Counsels on behalf of the appellants that the statements made by the accused persons before the I.O. (P.W. 19) during investigation are hit by Sections 25/26 of the Evidence Act. P.W 19 admitted that the statements were made during investigation while the accused persons were is custody in the present case. Trial Judge has marked the portions of those statements of the accused persons as exhibits. Portion of the statement of the juvenile co-accused Bappa i.e. Subhajit Sanyal stating that he can identify the other accused persons, has been marked as Exhibit-16. It is nobody's case that the appellants were arrested on the showing of Bappa. In fact, they were already in custody. Hence, the aforesaid statement of Bappa did not result in the discovery of identity of other accused persons and by no stretch of imagination could be said to be admissible under Section 27 of the Evidence Act. [see Jaffar Hussain Dastagir Vs. State of Maharashtra, 1969 (2) SCC 872 (para 5, 8 & 11]. Similarly, portions of the statements of Dindayal Sinha @ Singha (Exhibits 20 and 22) stating that he can take the police to the room where they had secreted the child and his subsequent identification of the room of Rajesh Hari also cannot fall within the zone of admissibility envisaged under Section 27 of the Evidence Act.
The aforesaid provision of law was engrafted as an exception to section 25/26 of the Evidence Act and rendered such portion of a statement made by an accused to a police officer while in custody admissible to the extent it related to "discovery of a fact". Mere statement of an accused that the victim was secreted in a room by itself would not amount to "discovery of a fact" unless such fact is otherwise corroborated by cogent and reliable evidence. No incriminating article is recovered from the room to corroborate such statement. Even ownership of the room i.e. railway quarter is not established by adducing independent evidence. In view of such fact I find it difficult to come to a conclusion that the aforesaid self incriminating statement made by Dindayal Singh while in police custody can be said to be admissible in law. Hence, none of these statements fall within the ambit of section 27 of the Evidence Act and can be said to be admissible in law. That apart, trial judge appears to have relied on the entire confessional statements of the aforesaid accused persons although only portion thereof had been exhibited, as aforesaid. This course adopted by the trial judge is patently illegal as has been held by the Apex court in Aloknath Dutta vs. State of W.B., (2007) 12 SCC 230 (Para 53). The prosecution case is further weakened by the lack of direct evidence with regard to the identification of the dead body. P.W 1 and P.W 4, parents of the victim, have not identified the dead body. In fact P.W 1 denied that he had lodged complaint (Ext. 11) at the time of holding inquest over the dead body. Report of handwriting expert (Ext. 23) produced in court corroborates his contention. Although P.W 19 claimed that the body was identified by the witnesses to the inquest namely Ujjal Roy Chowdhury (P.W 11), Rabindranath Bal (P.W 12), Sandip Kr. Dey (P.W 13), none of these witnesses have corroborated the version of P.W 19 and were declared hostile. Although these witnesses admitted their signatures in the inquest report in court, no suggestion was put to them during cross-examination that they had identified the body of the deceased during inquest.
In the light of the aforesaid evidence I find it difficult to hold that the prosecution has been able to prove the chain of circumstances to bring home the guilt of the appellants. There is no direct evidence to show that the appellants had kidnapped the victim. The SIM card bearing no. 9093375161 which was used to make the ransom call stood in the name of one Prabhat Kr. Halder. The aforesaid person has not been interrogated during investigation nor adduced as a witness. There is no iota of evidence how the appellants came into possession of the aforesaid SIM card which was used to make the ransom call. Merely because appellant Jagannath Bal received the ransom call on the mobile phone seized from his possession, it cannot be said that he was one of the conspirators to the act of kidnapping. Jagannath is the eldest uncle of the deceased and, therefore, making a call to his phone to demand ransom cannot be said to be so unnatural as to give rise to suspicion with regard to his complicity in the crime. Hence, Trial Court erred in law in relying upon confessional statements of the accused persons to police while they were in custody as admissible evidence. Even those statements, for reasons discussed earlier, do not fall within the ambit section 27 of the Evidence Act. None of the accused were arrested pursuant to the statement of juvenile co-accused Bappa (Ext. 16). Statements made by Dindayal Singh (Ext. 20 and 22) with regard to the identity of the railway quarter where the child was alleged to be secreted has not been corroborated by discovery of any incriminating article nor can it be said that the ownership of the room has been proved by his statement. Hence, no legally admissible evidence has been adduced by the prosecution connecting the appellants with the unfortunate incident of kidnapping for ransom and murder of the minor child.
In the light of the aforesaid discussion I am constrained to extend the benefit of doubt and acquit the appellants of the charges levelled against them.
Appellant Jagannath Bal shall be discharged from his bail bonds after expiry of six months in terms of 437A of the Code of Criminal Procedure.
Appellant Rajesh Hari and Dindayal Singha shall be forthwith released from custody, if not wanted in any other case, upon executing a bond to the satisfaction of the trial court for a period of six months in terms of section 437A of the Code of Criminal Procedure.
The appeal is, accordingly, allowed.
I record my appreciation for the able assistance rendered to this Court by Mr. Ranadeb Sengupta as amicus curiae for disposing the appeal.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
I agree.