Criminal Appeal (SJ) No.75 OF 2006 With Criminal Appeal (SJ) No. 125 of 2007 ------- Against the judgment and order of conviction and sentence dated 9th January, 2006 and 10th January, 2006 passed by Shri Uma Kant Srivastav, Ist Additioal Sessions Judge, Bhojpur, Ara. --------- Cr. Appeal (SJ) No. 75 of 2006 Nawal Kishor Singh, son of Haribans Singh, resident of Mohalla – Pakri chowk Arrah, Police station – Ara Nawadah, District – Bhojpur ……………… Appellant Cr. Appeal (SJ) No. 125 of 2007 Indu Devi, wife of Ashok Kumar Singh, resident of village – Bazariya, P.S. – Sahar, District – Bhojpur ……………. Appellant Versus The State of Bihar …… Respondent in both the appeals ---------- For the Appellants : Sarvshri Ajay Kumar Thakur, Dudhnath Singh, Prabhat Kumar Singh & Surendra Kumar Singh, Advocates. For the Respondent : Sarvshri S.N. Prasad & Ajay Mishra, APP ---------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA -------- Dharnidhar Jha, J. The two appeals have been preferred by Nawal Kishore Singh and Indu Devi, who were found guilty of committing offence under section 364 IPC by the learned Additional Sessions Judge, Bhojpur at Ara in S.T. No. 142 of 2001 by judgment dated, 2 the 9th day of January, 2006. It appears from the impugned judgment that on the day the judgment of conviction was rendered, i.e., on 9.1.2006, appellant Indu Devi and co-convict Chitranjan Singh absented themselves whereas appellant Nawal Kishore Singh was in attendance and, as such, the judgment of conviction was pronounced in absence of appellant Indu Devi, who subsequently, surrendered in the custody of the court on 11.12.2006 and the trial court heard her on sentence. Prior to that, Nawal Kishore Singh had been directed by the order of sentence passed on 10.1.2006 to suffer rigorous imprisonment for ten years as also to pay a fine of rupees ten thousand, in default of which, he was to suffer simple imprisonment for three months more. The same sentence was inflicted on Indu Devi also on 11.12.2006 after she had surrendered before the trial court. 2. The case related to the kidnapping of a four year old child, namely, Manish Kumar Dubey alias Golu. Initially the father of Golu, namely, Krishna Bihari Dubey (P.W. 2) had lodged a missing report (Ext.1) dated 9.6.2000 on the basis of which station diary entry no. 288 dated 9.6.2000 was made. Subsequently, a full- fledged report (Ext.2) was filed by Krishna Bihari Dubey and on that basis the FIR was drawn up. 3. It appears from the conjoint reading of Exts. 1 and 2 that a missing report was filed on 9.6.2000 pointing out that Golu had gone missing, after he had gone out of the house for playing 3 with his mates. He had, indeed, been kidnapped and on 10.6.2010 at about 10.30 A.M. the informant (P.W. 2) received a telephonic ring from some unknown person describing him as Bangali Dada claiming to speak from Calcutta, who was telling the informant that if he wanted to get his child back, then he should arrange for some money and wait for another message. The caller pointed out that the call had been made from others telephone and the next call the informant would receive from the phone of quite another person, who could be any of the residents of Housing Colony, Chandwa. The informant was cautioned not to be clever to do anything; else, he will be reaping very serious consequences. The report (Ext. 2), in fact, was a full fledged report about the kidnapping of Manish Kumar Dubey alias Golu, aged four years. 4. P.Ws 4 and 5, who are Deputy Superintendent of Police and Investigating Officer, pointed out that after getting the information about the occurrence and after having drawn up the FIR (Ext. 3) they proceeded to investigate into a case and attempted to recover the child. In that connection, they suspected appellant Indu Devi as the mother and father of the child had made certain searches in the house of appellant Indu Devi as the daughter of Indu Devi, named Sweta had taken the child from his house on the pretext of playing with him where after the child went missing and became traceless. Indu Devi was, as such, arrested. On being questioned, she confessed certain facts and during that course she pointed out to 4 the police as to what was the place where Manish Kumar Debey alias Golu had been confined. As per that confessional statement (Ext. 4), the victim child was confined in the house of Santosh Mishra in a particular village in the district of Mirjapur (Uttar Pradesh). Indu Devi gave a graphic description as to how the child had been picked up and taken away and had assured the police to lead them to the place of confinement of the child. In that connection, she pointed out the name of co-convict Chitranjan Singh, who was also arrested and on being questioned, he also confessed the same facts and also assured the police to lead them to recover the child from the same house of the same person, i.e., Santosh Mishra from a village located in Mirjapur in the state of Uttar Pradesh. The evidence of P.Ws 4 and 5 pointed out that they traveled with the two arrested persons Indu Devi and Chitranjan Singh by train and they had also taken into custody appellant Nawal Kishore Singh, who during the course of their travel by train, slipped out of the train boggy and a report, as such, was made to Mirjapur G.R.P.S. on 12.6.2010 at 8.30 A.M., a copy of which was produced during the trial and that had been marked X for identification. The evidence of P.Ws 4 and 5 further indicates that Indu Devi led the police to the house of Santosh Mishra who ran away from there but on search of the house, Manish Kumar Dubey alias Golu was recovered in respect of which, the recovery memo (Ext. 4) was prepared. After recovering the child the police handed 5 him over to his father (P.W. 2), as may appear from Ext. 6, a document of handing over the custody of the child, as stated above. The confession of co accused Chitranjan Singh has been marked Ext. 5/1 in the case. 5. During the course of trial, the parents of the victim child, namely, Renu Devi and Krishna Bihari Dubey were examined as P.Ws 1 and 2 respectively. They supported the fact that Golu went missing on 8.6.2000 at about 4.30 P.M. as he was taken by Sweta on the pretext of playing together and in spite of hectic search, the child could not be traced. The fact that Sweta was the daughter of appellant Indu Devi and had taken away the child was stated by the P.W. 1 Rina Devi. When the child was not found, the mother of the child (P.W.1) searched him at many places and when P.W. 2 returned from the school where he was a teacher, she narrated the incident of the child going missing and becoming traceless and thereafter P.W. 2 also joined P.W. 1 in search of the child and on not tracing the child out, filed the report (Ext. 1). From the evidence of P.Ws 1 and 2 the factum of the victim having been kidnapped is established and subsequently, as may appear from the evidence of P.Ws 1 and 2, the couple had received a call from some one claiming himself to be Bangali Dada asking them to arrange for some money if they wanted to get the child back and they were further cautioned not to be clever as the same may land them in serious trouble. 6 6. The evidence of P.Ws 4 and 5 indicate that after having heard the story of the child going missing and the search for him specially in the house of appellant Indu Devi, the police grew suspicious about the appellant Indu Devi and as such, took her into custody for interrogation when she pointed out the names of Nawal Kishore Singh and absconding convict Chittaranjan Singh as the persons who had taken him away and the manner as to how he was moved from village Barka Rajpur to the particular village in the district of Mirjapur (Uttar Pradesh) from where the child was recovered. 7. The evidence of P.Ws 4 and 5, the two police officers further lend support to their story besides lending support to the prosecution case that it was on account of the confessional statement of Indu Devi (Ext. 5) and that of Chittaranjan Singh (Ext. 5/1) that the police was led to the house of one Santosh Mishra situated at village Simri Kalan, P.S. – Lalganj in the district of Mirjapur (U.P.), who was handed over to his father by Ext. 6 after his recovery. 8. Thus, the evidence is sufficient that the child went missing. There is no evidence further from that stage of the prosecution story till the recovery of the child as no person claims to have seen any of the accused or any other person picking up the child so as to taking him away. However, as pointed out by me, the confessional statement of Indu Devi and Chittaranjan Singh, 7 specially that part of these documents which was leading the police to the place where the child had been confined by his kidnappers, was the solitary evidence out of the two confessional statements (Ext. 5 and 5/1) which was admissible part of the documents as regards the prosecution story. Indu Devi was pointing out to the police and so was doing Chittaranjan Singh that they would lead them to the house of Santosh where the child had been confined. Accordingly, the police went there to recover the child as appears from Ext. 4, the recovery memo. 9. The name of appellant Nawal Kishore Singh appears in the evidence of P.Ws 4 and 5, who claim that he had also been arrested but what was the basis for taking him into custody is completely absent from the evidence available on the trial court record. There is no material to indicate that Nawal Kishore Singh had anything to do either with the kidnapping of the child or his transportation from his house to village Simri Kalan within the district of Mirjapur. The bare evidence which appears against him was that while he was being taken to Simri Kalan, he slipped out of the police dragonet and went away. But curiously enough, nothing was brought during the trial to indicate that the police had lodged any report regarding the abscondance of appellant Nawal Kishore Singh or his escape from the lawful custody. Nawal Kishore Singh was not also confessing to his guilt nor was he leading the police to discover the child. 8 10. This being the state of evidence, the court finds that the conviction of appellant Nawal Kishore Singh was completely against the evidence which was available on record and the sentence passed upon him, as such, was also not sustainable. 11. In the result, Cr. Appeal No. 75 of 2006 preferred by appellant Nawal Kishore Singh is allowed by setting aside his conviction and sentence passed upon him. He is on bail. He is discharged from the liabilities of his bail bonds. 12. As regards appellant Indu Devi and Cr. Appeal No. 125 of 2007, it is true that there is no evidence against her also as I have just pointed out that she was seen picking up the child on helping out the accused in his transportation right from the village Simri Kalan. But the part of her confessional statement which was leading to the discovery of the fact of confinement of the child into the house of Santosh Kumar Mishra situated at village Simri Kalan within the district of Mirjapur was admissible under section 27 of the Evidence Act and that raises a presumption that either she was having her complicity in commission of the offence or she had consciously participated in wrongfully confining the child in the house of said Santosh Kumar Mishra in Mirjapur. The presumption of her guilt by way of direct or indirect participation in the offence, especially that of wrongful confinement or the demand of paying ransom money appears concluded by the evidence available on 9 record and in that view, her conviction appears justified merely on that class of evidence. 13. As a result, the appeal filed by Indu Devi, i.e., Cr. Appeal No. 125 of 2007 does not appear of any merit and the same is dismissed. 14. While I was hearing the learned counsel of both sides and while I was perusing the judgment in question, what pained me the most is that the case relates to kidnapping of a child of four years so as to be moved to a far off place in the district of Mirjapur (Uttar Pradesh). It was a very traumatic act as a child of four years, who was yet to know the goes of the world, was separated from her mother’s lap and affection of parents to be confined by merciless hands at an unknown place within the secluded corners of the state of Uttar Pradesh. The acts of the accused required that the learned trial judge had viewed the commission of the offence with all seriousness and to have passed an appropriate sentence. The circumstances under which the child was picked up and was transported to a far off corner in the state of Uttar Pradesh indicates that R.I. for ten years was too lenient a sentence to be passed upon such cruel offenders who were picking up the child of four years for extorting money. The court could not approve of the approach of the trial court in inflicting the sentence. However, in absence of any appeal for enhancing the sentence or no notice to the appellant on 10 that, I could not do much about it but simply to leave the sentence as it was passed by the learned trial judge. (Dharnidhar Jha, J.) Patna High Court, The 22nd June, 2011, NAFR/Anil/