Criminal Appeal (DB) No.634 of 2005 Against the judgment of conviction dated 07. 09. 2005 and order of sentence dated 13. 09. 2005, passed by Shri Dhramnath Prasad Verma, Additional Sessions Judge, F.T.C.I, Begusarai, in Sessions Trial No. 304 of 2003. Md.Faizan Ahmad @ Kalu, S/o Md. Mustaque Ahmad, Resident of Village- Lakhminia, Police Station- Ballia, District- Begusarai. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. WITH Criminal Appeal (DB) No. 695 of 2005 Against the judgment of conviction dated 07. 09. 2005 and order of sentence dated 13. 09. 2005, passed by Shri Dhramnath Prasad Verma, Additional Sessions Judge, F.T.C.I, Begusarai, in Sessions Trial No. 304 of 2003. 1. Md. Daud, son of Late Md. Ahiya. 2. Md. Naushad @ Naushad Alam, son of Md. Daud. 3. Sahani Khatoon, wife of Md. Daud. All resident of Village- Sahna, Ahmad Ganj Tola, P.S. Sahebpur Kamal, District- Begusarai. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. WITH Criminal Appeal (DB) No. 709 of 2005 Against the judgment of conviction dated 07. 09. 2005 and order of sentence dated 13. 09. 2005, passed by Shri Dhramnath Prasad Verma, Additional Sessions Judge, F.T.C.I, Begusarai, in Sessions Trial No. 304 of 2003. 1. Md. Sultan, son of Md. Habib. 2. Tabbsum Ara, wife of Md. Sultan. Both resident of Village- Ahmadganj, Bakhadda, P.S. Sahebpur Kamal, District- Begusarai. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. (In CR. APP (DB) No. 634 of 2005) For the Appellant. : Mr. Abdul Kalam, Advocate. For the Respondent 2 State : Mr. Ashwini Kumar Sinha, A.P.P. (In CR. APP (DB) No. 695 of 2005) For the Appellants : Mr. Vivekanand Vivek, Advocate. For the Respondent State : Mr. Dilip Kumar Sinha, A.P.P. (In CR. APP (DB) No. 709 of 2005) For the Appellants : Mr. Shubhesh Pandey, Advocate. For the Respondent State : Mr. Abhimanu Sharma, A.P.P. PRESENT THE HON’BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON’BLE MR. JUSTICE GOPAL PRASAD Shyam Kishore Sharma & Gopal Prasad, JJ. Heard learned counsel for the appellants and learned counsel for the State. 2. Three appeals have heard together and disposed of by the common judgment as all the three appeals arose out of same judgment and order dated 7th September, 2005, passed by Shri Dhramnath Prasad Verma, Additional Sessions Judge, F.T.C.I, Begusarai in Sessions Trial No. 304 of 2003 (arising out of Sahebpur kamal P.S. Case No. 162 of 2002, by which he has convicted appellant Md. Dawood, Sahani Khatoon and Tabbasum Aara for offence under Sections 368/149 read 3 with Section 120B I.P.C. and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- (Ten thousand) and if they failed to deposit the fine to further undergo S.I. for one year and has further convicted above named three convicts for offence under Section 120 B I.P.C. and sentenced them to undergo rigorous imprisonment for life. He has further convicted Md. Naushad Alam, Md. Sultan and Md. Kalu alias Faizan for offence under Sections 364/149 I.P.C. and sentenced them to undergo rigorous imprisonment for life and fine of Rs. 10,000/- and if they failed to deposit the fine then further convicted them to undergo S.I. for one year. He further convicted them for offence under Section 120B I.P.C and sentenced them to undergo rigorous imprisonment for life. 3. The prosecution case is that Sazia aged about eight years, (P.W. 5) the daughter of the informant, Takki Imam (P.W.11), Shirri aged about seven years (P.W.6), Rehan aged about five years (P.W.7) and Arfa Jamal (not examined) aged about three years were the children of Nusrat (P.W. 4) they came from Masjid after their study at 4 P.M. They took their meal and went out of their houses to play. The children did not return till 6 4 P.M. Nusrat, P.W. 4, the niece of the informant, P.W.11 came in search of children. The informant, P.W.11 also proceeded for making out search of the children, but in vain. The children could not be found out. They doubted that Kalu might have hand as he was telephone operator on the private telephone booth of P.W. 4. who had removed him from the services of the booth due to his bad conduct. The children were mixed with him. Kalu used to raise his grievance on the pretext of his false claim of dues as telephone operator in booth of P.W.4. Hence it was doubted that Kalu might be instrumental in the occurrence and hence a Fardbeyan to that effect was given to Police. On the basis Fardbeyan formal F.I.R. lodged and investigation proceeded. During investigation the prosecution party received telephone call regarding the demand of Rs. 2 lakh 50 thousand for recovery of the children and threat for why they are vexing Kalu. During investigation the prosecution party met accused Nausad and he disclosed that the children are in a ‘surang’ in the house of the accused Sultan. The police caught Daud. At the instance of the co-accused Daud tunnel (Surang) was located. From the said ‘Surang’ the four children who were missing were recovered. The 5 children were kept in ‘surang’ having been tied by chain in peg. 4. The statement of the four children were recorded under Section 164 Cr.P.C. during investigation. The four children disclosed that while they had been to play on the date of occurrence Chanda, the daughter of accused Tabbsum came to call them for taking Laddu. They went to house of Sultan. Chanda gave them Laddu. They met Sultan, Nausad and Tabbsum Ara. They blind folded them, tied them in chain by putting them in ‘surang’ and kept under captivity. During captivity they were hurt, assaulted and even burnt upon hand and leg. They were provided only bread and salt. They had to meet the call of nature in the ‘surang’ itself. During the period of their captivity Daud and Sahani Khatoon also used to visit the ‘surang’. 5. After investigation, charge sheet was submitted. Cognizance was taken and case committed to the Court of Sessions where charges were framed. At the time of charge accused Tabbsum Ara confessed her guilt and her confession was recorded. But during trial of other accused she also participated in cross-examination. 6. During trial sixteen witnesses were 6 examined as witnesses. Out of them P.W. 1 is father and P.W. 4 is mother of P.W. 6 and 7. P.W. 11, the informant is father of P.W. 5 and uncle of P.W. 4. P.W. 1 supported the prosecution case about the receipt of telephone call for ransom and vexing the Kalu in the case. He has supported the prosecution case that Nausad disclosed about the boys confined in surang. Police at the instance of Daud got the ‘surang.’ P.W. 4 is witness who in her evidence supported the prosecution case about missing of victim on the date of occurrence. P.W. 11 and 13 are informant and I.O. respectively are witnesses of recovery of victim children before whom the victim P.W.5, 6 and 7 recovered. P.W. 5, 6 and 7 supported the prosecution case about their kidnapping and assault during their captivity. P.W. 8 is brother of P.W. 4. P.W. 10 is Judicial Magistrate who recorded the statement of witnesses (children) under Section 164 Cr.P.C. P.W. 12 is the Judicial Magistrate who recorded the statement of Chanda, the daughter of accused Sultan and Tabbsum Ara. 7. Learned Additional Sessions Judge taking into consideration the evidence and facts and circumstance that there was underground ‘surang’ in 7 which children were kept after kidnapping under captivity. In the ‘surang’ four children were kept about five months for ransom. There was demand of Rs. 2,00,000/- on telephone and children were tied in rope and chain and the victim children were hurt and burn. It was further observed that underground ‘surang’ is not work of one day and it presupposes prior planning and execution and give rise to apprehension that victim may be done to death for non-payment of ransom and hence convicted the appellants as mentioned above. 8. Learned counsel for the appellants however contended that children were recovered from the ‘surang’ from the house Sultan. P.W. 5 has stated that Daud and Sahani have also come once, but that statement stands contradicted from the evidence of the I.O. as witness has not stated this fact before and hence involvement of Daud is doubtful. It has further been contended that so far, Kalu is concerned his house is about 4 kilo meter away from the P.O. and there is no evidence regarding his implication in crime. Moreover, telephone number detected by the witnesses from where telephone calls were received, but no investigation was made about those telephone numbers. There is no investigation in 8 whose name those telephone numbers stand and who was responsible and hence, involvement of Kalu is doubtful. It has further been contended that to prove the charges under Section 364 A, it must be proved that there was threat of hurt and death, but there is no evidence that any threat was given in connection with demand to show that victim was done to death. Hence Section 364 A is not attracted and case must fall within Section 365 I.P.C. as the ingredient of Section 364 A I.P.C. is not established and further conspiracy has also not well been established and hence prosecution has not been able to prove the charges under Section 364 A I.P.C. 9. Learned counsel for the State however, submits that prosecution has well been proved the case and the ingredient of evidence has also been established. The accused in case of demand of ransom does not call from their own mobile but use to mange. So on that count, prosecution case cannot be doubted. 10. However, taking into consideration the evidence of P.W.11 who supported the prosecution case is that children were found missing. P.W. 4 also inform that children were missing. The case was lodged and during investigation the children were recovered from 9 the house of Sultan from ‘surang’ tiding in chain. P.W. 5, 6 and 7 the victim on recovery disclosed in their statement under Section 164 Cr.P.C. before police as well as in their evidence that they were called to take Laddu by where Nausad, Sultan and Tabbsum blind folded their eyes and put under the ‘surang’ and P.W. 5, 6 and 7 disclosed about assault and hurt by burning their body and was recovered thereon. 11. Other witnesses P.W. 1, 2 and 3 have also supported the prosecution case about recovery and seized articles and P.W. 5, 6 and 7 disclosed that during their captivity Daud and his wife Sahani used to visit. Hence, involvement of Nausad, Sultan, Daud, Sahani Khatoon and Tabbsum Ara is expressly come under the evidence of P.W. 5, 6 and 7. 12. However, criticism has been made that statement of evidence of P.W. 5 suffers from contradiction as P.W. 5 has not disclosed before the police about visit of Daud and Sahani during their captivity. 13. However, it may be noted that non- mentioning the name of Daud and Sahani by P.W. 5 is not a contradiction, but mere omission. It is mistake of 10 narrative. She has stated in her evidence that she has not stated the fact before the police. However, mere omission to say a fact before police regarding the details of the narrative is not contradiction, but mere omission. All omissions are not contradiction. If the statement made regarding narrative of the details of the fact hence omission cannot be said be contradiction. Moreover, P.W. 6 has also stated that Daud had once visit ‘Surang’ during their captivity and further it was doubt who disclosed the place and removed the children when ‘surang’ was found by the police where children were recovered. 14. However, it has been contended about involvement of Kalu. There is no direct evidence against Kalu about the involvement of crime, no direct evidence against him nor sentence him. His house is 4 k.m. away from the P.O. The only evidence is that in demand of ransom on telephone, his name transpires. But the I.O. has not investigated in reference of the two telephone number from which the call received and hence the investigation on that part is not complete to infer the involvement of the Kalu. 15. However, it has come in evidence that Kalu 11 was engaged in telephone booth run by P.W. 4 and thereafter, he was removed from the services of telephone booth due to his misconduct and behaviour and he used to threat and used to claim his dues and had connection with other accused and even on the date of occurrence he was seen and after the occurrence, demand was made on telephone regarding ransom and even telephone call received with a threat that Kalu be not vexed, this demand mixed with a command not to vex Kalu itself indicates the involvement of Kalu as the telephone call was received for the benefit of Kalu. The occurrence itself indicated that the occurrence was in a well conceived plan with role assigned. 16. Taking into consideration the entire facts and circumstances, the occurrence and crime appears to be under a organised manner and to bring it under the definition of organised crime and it does not appears to be case of simple crime involving one person or two, but the nature and manner of occurrence itself indicates about well conceived pre-plan as the accused must have plan for ‘surang’ for kept the children in captivity and making a ‘surang’ not a business of one person or affair of one day. The children were kept tied in chain in 12 ‘Surang’ without light and air in most unhygienic condition to impose their life and liberty. One set of persons are demanding ransom on telephone and other set watching and taking care by visiting and third set taking and keeping them, hence it preconceive the mind of accused person in well plan manner to do the crime. Victim children were kept under the captivity for more than five months under the ‘surang” in most unhygienic condition under the threat as well as hurt and assault as per apparent from their evidence is of barbaric state being permeated against the children affecting their health and hygiene. 17. Learned counsel for the appellants however, contended that there is no allegation of demand under threat of causing death. However, here under the facts and circumstances, the victim kidnapped put under the ‘Surang’ and were subjected to hurt by assault and burning their body by Chirag itself indicate that they were was subjected to hurt and were kept in captivity in such circumstance well infer that demand was under threat of life. Hence demand of Rs. 2,50,000/- under the facts and circumstances can well be inferred a threat of death and hurt when the children remained in captivity 13 for more than five months and were found in precarious condition having kept in underground ‘Surang’ in barbaric manner during their captivity and hence ingredients for demand under threat to kill or hurt having been established. 18. So far charge of conspiracy is concerned the manner and mode of occurrence itself indicates a preconceive plan. However, conspiracy need not be necessarily be proved by direct evidence. It can well be proved by circumstances pointed out by explanation and conspiracy to commit an act. However, the circumstances that three persons kidnapped and put the victim under the ‘Surang’ and Daud and Sahani having casual visitor to take care. To construct a ‘surang’ having accommodation of four children is not a work of one person in one day. It shows that there was preconceived plan and there was deliberation to execute it and has taken abundant time to execute. Then the kidnapping by planned manner catching the victim in pretext of giving Laddu and then confining them in ‘surang. There are different set of person having different role. One set looking after the victim. Another set keep on watching and third set engaged in demand of ransom. Hence 14 apparent that the different act of accused for working for ransom after kidnapping shows the conspiracy. 19. Under the facts and circumstances, I find and hold that prosecution has been able to prove the charges. Hence all the three appeals are dismissed. (Gopal Prasad, J.) Shyam Kishore Sharma, J. I agree. Patna High Court The 14th…September, 2011. NAFR/m.p. ( Shyam Kishore Sharma, J.)