Kishan Mondal and Others vs The State of Jharkhand

These two appellants were put on trial on the accusation of kidnapping of one Bhudeo Mondal for the purpose of ransom and then killing him. The Court having found the appellants guilty for the offence punishable under section 364A and convicted the appellants under section 364A vide judgment dated 4.12.2004. So far as the offence under section 302 of IPC is concerned, the Court neither did record the appellants being convicted nor did record for acquittal of the appellants for the said offence. However, the Court vide its order dated 6.12.2004 sentenced the appellants to undergo imprisonment for life under section 364A of the Indian Penal Code.

The case of the prosecution is that in the morning of 22.7.2001 Rajan Mondal, Ganga Sagar Mondal, Shibu @ Subash Mondal (appellant) and Kishan Mondal (appellant) came to the house of the informant Bhukari Devi-P.W.2 and took Bhudeo Mondal, the son of the informant, along with them. When Bhudeo Mondal did not return home, suspicion was raised that the accused persons must have confined him some where so that informant may give them Rs. 20,000/- as one Rajan Mondal (accused) a month''s before had asked the informant to pay a sum of Rs. 20000/-.

The informant, in the meantime, informed to Gopi Mondal-P.W.1 and also Prakash Mondal-P.W.3 as well as Jainarayan Mondal-P.W.4 about the missing of her son. On the next day when the informant came to know that two of the accused persons namely, Jagdish Mondal and Vinod Mondal had returned home, the informant and other witnesses came to the house of Jagdish Mondal and Vinod Mondal but did not find them in the house. Thereupon, the informant by way of written report (Ext.1) gave information to that effect to Jamtara Police Station.

Upon which, a case was registered. Subsequent to that a police personnel came to the house of the informant and informed that one person who has been identified as Bhudeo Mondal has been found dead at Gorakhpur Railway station. On getting such information Gopi Mondal-P.W.1, Jainarayan Mondal-P.W.4, Ramkishan Mondal-P.W.5 and one Raju Mondal went to Gorakhpur Railway Station along with one constable of Jamtara Police Station. There they did find the dead body of Bhudeo Mondal. There they could know that on 27.7.2001 one boy after getting down from the train came running and fell near the tea stall of one Samay Prasad-P.W.15 from whose mouth froth was seen coming out. Immediately, information was given to the station master Yantri Prasad-P.W.13, who immediately informed to one Dr. Devendra Kumar Singh-P.W.12 who on examining him at 5.20 a.m. on 27.07.2001 found him dead and as such declared him dead. From the identity card the dead body was identified as that of Bhudeo Mondal. Such information was given to Jamtara Police. Meanwhile, Ramniwas Yadav-P.W.16- head constable of GRP held inquest on the dead body and sent it for postmortem examination before Dr. H.R. Yadav, C.M.O.-P.W.18 Sadar Hospital, Gorakhpur, who on holding autopsy did not find any external injury on the persons of the deceased. However, he sent the viscera for its examination before F.S.L., Ranchi. The viscera was examined by Gopal Jee Jha-P.W.11. Upon examining, it was found that the viscera was containing pesticides and accordingly, he issued the viscera report (Ext.7).

All these documents i.e. inquest report, postmortem examination report and viscera report were submitted to the I.O.-Ram Shanker Singh-P.W.9, who in the meantime recorded the statements of the witnesses.

On completion of the investigation charge sheet was submitted against these two appellants and also against the other accused persons. However, trial of other persons seems to have been separated. Thereupon, these two appellants did raise the question of being juvenile on the date of occurrence. An inquiry was held whereby the C.J.M., Jamtara did find both the appellants to be juvenile on the date of occurrence. Being aggrieved with that order, the informant did prefer a Criminal Appeal before the Sessions Judge which was dismissed. As against that order a revision was preferred before this Court vide Criminal Revision No. 198 of 2002 which was allowed. Consequently, orders passed by both the Court below were set aside. Against that order, the appellants moved to the Hon''ble Supreme Court in S.L.P. (Criminal) No. 2917 of 2007 (Criminal Appeal No. 1400 of 2010). The Hon''ble Supreme Court vide its order dated 26.09.2013 set aside the order passed by this Court. Consequently, the order passed by the Courts below declaring the appellants juvenile got affirmed.

Meanwhile, the trial Court after the order was passed by this Court in the year 2003 proceeded with the trial; during which the prosecution examined as many as 18 witnesses. Of them, P.W.1-Gopi Mondal did testify that he had seen the deceased in company of these appellants and also the other accused persons at the platform of Karmatand Railway Station. The accused Rajan Mondal told P.W.1-Gopi Mondal that they are going to Deoghar Fair. The Bhudeo Mondal (deceased) also told him that he is going along with them to Deoghar fair. P.W.2-Bhukari Devi-informant has stated in the same manner as she has made statement in her written report. P.W.3-Prakash Mondal has also testified that he had seen Bhudeo Mondal in company of the accused persons not the appellants at Jasidih Railway Station. There also Bhudeo Mondal disclosed to them that they are going to Deoghar. P.W.4-Jainarayan Mondal has testified that he was informed by P.W.1 that the accused Rajan Mondal had asked for Rs. 20,000/- and that her son is missing. After some days a constable of Jamtara Police Station came and informed that the dead body of Bhudeo Mondal has been found at Gorakhpur Railway Station and thereupon he along with others went there and brought the dead body. P.Ws.5, 6 and 7 have been declared hostile. The trial Court having placed its reliance on the testimonies of P.W.1 and P.W.2 did find the appellants guilty for the offence under section 364A of IPC and accordingly, recorded the order of conviction and sentence which is under challenge.

Before proceeding further with the matter it be stated that the appellants, who were tried by the regular Court, had been found to be juvenile by the Hon''ble Supreme Court but by the time the order was passed by the Hon''ble Supreme Court the trial got concluded whereby the appellant was convicted and sentenced. Normally, when a juvenile is tried by a regular Court it gets vitiated but in the facts and circumstances of the case it never happens to be proper and appropriate to set aside the order of conviction and sentence and to remand the case to be tried by the Juvenile Justice Board as both the appellants have remained in custody for about 6 years and in that event, even if the case is remanded and the trial is taken up it would render it futile as the juvenile Court on finding the appellants guilty at best inflict sentence for of 3 years. Under the circumstances, we instead of remanding the case back are entering into the merit of the case to find out as to whether the appellants have rightly been convicted or not?

Such situation had arisen before the Hon''ble Supreme Court at number of occasions. The Hon''ble Supreme Court while dealing with the case of Jitendra Singh @ Babboo Singh and Another Vs. State of U.P., (2013) 2 DMC 795 : (2013) 11 JT 152 : (2013) 3 RCR(Criminal) 819 : (2013) 9 SCALE 18 did find that four categories of the cases are there.

In the first category of the cases, the conviction of the juvenile upon being upheld sentence was quashed. Such view has been taken in a case of Jayendra and another Vs. State of Uttar Pradesh, AIR 1982 SC 685 : (1982) CriLJ 1000 : (1981) 4 SCC 149 : (1981) SCC(Cri) 809 , Bhoop Ram Vs. State of U.P., AIR 1989 SC 1329 : (1990) CriLJ 2671 : (1989) 2 Crimes 294 : (1989) 2 JT 105 : (1989) 1 SCALE 799 : (1989) 3 SCC 1 , Pradeep Kumar, Krishan Kant and Jagdish Vs. State of U.P., AIR 1994 SC 104 : (1994) CriLJ 148 : (1995) 4 SCC 419 Supp , Bhola Bhagat Vs. State of Bihar, AIR 1997 SC 85 : (1998) CriLJ 390 : (1997) 8 JT 537 : (1997) 6 SCALE 558 : (1997) 8 SCC 720 : (1997) 4 SCR 711 Supp , Upendra Kumar Vs. State of Bihar, (2005) 3 SCC 592 , Gurpreet Singh Vs. State of Punjab, AIR 2006 SC 191 : (2005) CriLJ 126 : (2005) 9 JT 465 : (2005) 12 SCC 615 : (2006) 1 UJ 231 : (2005) AIRSCW 5700 : (2005) 7 Supreme 571 and Vijay Singh Vs. State of Delhi, AIR 2012 SC 3437 : (2013) 115 CLT 795 : (2012) CriLJ 4527 : (2012) 4 JCC 2523 : (2012) 8 JT 340 : (2012) 8 SCALE 406 : (2012) 8 SCC 763 : (2012) AIRSCW 4877 : (2012) 6 Supreme 330 .

Second category of cases are those cases wherein conviction of the appellant was upheld but the sentence awarded was modified to the period of detention already undergone. Such view has been taken in a case of Satish @ Dhanna Vs. State of M.P. and Others, AIR 2009 SC 2643 : (2009) 5 JT 490 : (2009) 5 SCALE 702 : (2009) 14 SCC 187 : (2009) 6 SCR 486 : (2009) 6 UJ 2607 : (2009) AIRSCW 4067 : (2009) 3 Supreme 288 and in a case of Dharambir Vs. State (NCT of Delhi) and Another, AIR 2010 SC 1801 : (2010) CriLJ 2852 : (2010) 2 Crimes 399 : (2010) 6 JT 273 : (2010) 4 SCALE 316 : (2010) 5 SCC 344 : (2011) AIRSCW 1001 .

Third category of cases are those cases wherein conviction of the juvenile was set aside and the case was remitted to the Juvenile Justice Board for disposal in accordance with law. Such view has been taken in a case of Hari Ram Vs. State of Rajasthan and Another, (2009) 8 JT 47 : (2009) 6 SCALE 695 : (2009) 13 SCC 211 : (2009) 7 SCR 623 : (2009) 6 UJ 2643 and in Daya Nand Vs. State of Haryana, AIR 2011 SC 593 : (2011) CriLJ 1157 : (2011) 1 JCC 325 : (2011) 1 JT 106 : (2011) 1 RCR(Criminal) 420 : (2011) 1 SCALE 143 : (2011) 2 SCC 224 : (2011) 1 SCC(Cri) 666 : (2011) 1 SCR 173 : (2011) 1 UJ 184 : (2011) AIRSCW 453 .

Fourth category of cases are those in which conviction of the appellant was upheld and the records were directed to be placed before the Juvenile Justice Board for awarding suitable punishment to the appellant.

Under the circumstances, we intend to examine the case on its merit rather than to remand the case before the Juvenile Justice Board for fresh trial.

Having heard learned counsel for the appellants, learned counsel for the informant and learned counsel appearing for the State and on perusal of the record, we do find that it is the case of the prosecution as has been made out by the informant P.W.2-Bhukari Devi is that one month before the case was lodged. One of the accused Rajan Mondal had asked a sum of Rs. 20,000/- from the informant-P.W.2. She had declined to give it to Rajan Mondal. According to the informant Rajan Mondal on the date of occurrence i.e. on 22.07.2001, the appellants along with other accused came and took Bhudeo Mondal (deceased) with them. On the next day, accused Jagdish and Vinod returned home but Bhudeo Mondal did not return home. Thereupon, she informed to P.W.1-Gopi Mondal and P.W.3-Prakash Mondal who tried to search out Bhudeo but they did not find. However, according to P.W.1-Gopi Mondal he had occasioned to see Bhudeo Mondal in company of the appellants along with other accused persons on platform No. 1 of Karmatand Railway Station. There, one of the accused Rajan Mondal disclosed to P.W.1 that they are going to Deoghar. Bhudeo also told P. W. 1 and also to P.W.3-Prakash Mondal that he is going to Deoghar fair. This all happened on 22.07.2001.

Subsequently, Bhudeo was found dead on 27.07.2001 at Gorakhpur Railway Station. Information was given to the informant and other witnesses who went there and then brought dead body. Since, the appellants and other accused persons were the person who had taken the deceased along with them and the deceased was subsequently found dead. The Court recorded the order of conviction and sentence on the said evidences of taking the deceased by the appellants and others with them.

The question does arise as to whether the prosecution has been able to prove all the ingredients required to have for attracting the offence under section 364A of The Indian Penal Code, which reads as follows:

Section 364A: Kidnapping for ransom, etc.: Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and 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 causes hurt or death to such person in order to compel the Government or 159 [any foreign State or international inter-governmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.

To attract the provision of section 364A, the prosecution has to prove that the accused kidnapped/abducted a person, kept him under detention and then raised demand of ransom. Here in this case what has come that the appellants and others took the deceased from his house with them. The victim as per the evidences of P.W.1 and P.W.3 was seen in company of the appellants and others at Karmatand platform and Jasidih platform where the deceased had had talk with those witnesses whereby the deceased told them that he is going to Deoghar. In such situation how it can be taken that the deceased was under detention when he was seen moving freely at the railway station. Furthermore, it is never the case that after the deceased was taken by the accused persons, the accused persons ever raised any demand of money or something else. In that event, prosecution can certainly be said to have failed to prove charge. Accordingly the order of conviction and sentence is hereby, set aside.

In the result this appeal stands allowed. The appellants, who are on bail, are discharged from the liability of bail bonds.