CRIMINAL APPEAL No.1088 OF 2008( D.B.) ---------- Against the judgment and order of conviction dated 17.09.2008 and sentence dated 09.09.2009 passed by the learned Additional Sessions Judge No. 3, Patna in Sessions Trial No. 816 of 2005. ---------- Narendra Kumar Pandey alias Sunil Pandey, son of late Kameshwar Pandey, resident of Village- Nawadih, P.S. Karakat, District- Rohtas, at present Member of the Legislative Assembly, from Piro Constituency in the district of Bhojpur…………………………………………………………..Appellant. -Versus- The State of Bihar………………………………………………..Respondent. ---------- For the Appellant: Mr. Rana Pratap Singh, Senior Advocate & Mr. Sanjay Kumar @ Manu & Narendra Kumar, Advocates. For the State : Mr. Ashwini Kumar Singh, A.P.P. ---------- -With- CR. APP (DB) No.1145 OF 2008 ---------- Anil Kumar Singh, Son of Late Dhiraj Narayan Singh, resident of Mohalla- Anand Bazar(Yadav Complex) P.S. Danapur in the district of Patna. ….. …….Appellant. -Versus- The State of Bihar………………………………………….Respondent. ---------- For the Appellant: Mr. Surinder Singh, Senior Advocate and M/s. Akhileshwar Prasad and Ghanshyam Tiwary, Advocates. For the State : Mr. Ashwini Kumar Singh, A.P.P. ---------- With CR. APP (DB) No.1195 OF 2008 ---------- Lulan Sharma, Son of Late Lal Narain Sharma, resident of Village- Chesi, P.S. Naubatpur, District-Patna………………………………..Appellant. -Versus- The State of Bihar……………………………………………..Respondent. ---------- For the appellant: Mr. Pramod Kumar Singh, Advocate. For the State : Mr. Ashiwini Kumar Singh, A.P.P. 2 ---------- -With- CR. APP (DB) No.1291 OF 2008 ---------- Munna Singh, Son of Chandrika Singh, resident of Village- Simra, P.S. Janipur, District- Patna…………………………………………..Appellant. -Versus- The State of Bihar……………………………………………….Respondent. ---------- For the Appellant: Mr. Suraj Narayan Sinha, Senior Advocate and Mr. Dronacharya, Advocate. For the State : Mr. Ashiwini Kumar Singh, A.P.P. ---------- With CR. APP (DB) No.1325 OF 2008 ---------- Chittranjan Kr. @ Bablu, S/O Lalan Singh, resident of Village- Mahajpura, P.S. Vikram, District- Patna………………………………………Appellant. -Versus- The State of Bihar………………………………………………….Respondent. ---------- For the Appellant: M/S. Ashok Kumar, Shashi Ranjan, Rajendra Prasad and Shakti Shankar, Advocates. For the State : Mr. Ashiwini Kumar Singh, A.P.P. ---------- With CR. APP (DB) No.1260 OF 2008 ---------- Dheeraj Kumar, Son of Shri Sidhnath Sharma, resident of Village- Sangrampur, P.S. Bikram, District- Patna……………..…….Appellant. Versus The State of Bihar……………………………………….…..Respondent. ---------- For the Appellant: M/S. Rajesh Ranjan and S.M. Sabear Alam, Advocates. For the State : Mr. Ashiwini Kumar Singh, A.P.P. ---------- With CR. APP (DB) No.1070 OF 2009 ---------- Binay Kumar, Son of Nawal Kishore Singh, resident of Chhitnama, P.S. Maner, District-Patna………………………………….………Appellant. -Versus- The State of Bihar………………………………………….….Respondent. ----------. 3 For the Appellant: Mr. D. N. Tiwary, Advocate. For the State : Mr. Ashiwini Kumar Singh, A.P.P. ---------- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH ****** D.K.Singh,J All the aforesaid seven appeals have been filed against the judgment of conviction dated 17.09.2008 and orders of sentence dated 17.09.2008, 16.10.2008 and 09.09.2009 passed in Sessions Trial No. 816 of 2005 by Sri. Vijay Prakash Mishra, learned 3rd Additional Sessions Judge, Patna whereby and whereunder the aforesaid seven appellants were convicted under Section 364A, 365 r/w Section 34 and 120 B of the I.P.C. Though nine accused were put on trial but ultimately only seven accused were convicted and sentenced since two other accused namely, Sanoj Kumar and Santosh Kumar Tiwari, did not appear at the time of judgment and sentence. The aforesaid seven convicts were sentenced under Sections 364A/34, 120B of the I.P.C. for life imprisonment and a fine of Rs. 50,000/- each and further sentenced under Section 365 of the I.P.C. for seven years rigorous imprisonment and both sentences were directed to run concurrently. Twenty five percent(25%) of the fine amount was 4 directed to be utilized for expenditure made in prosecuting the accused persons and the rest 75% was to be given as compensation to the victim for suffering mental torture or loss caused due to kidnapping. Since all the seven appeals arise out of one judgment passed in Sessions Trial No. 816 of 2005, hence all the appeals were heard together and are being disposed of by this common judgment. The prosecution case starts rolling with the written report (Ext-3) submitted by Smt. Nirmila Saxena(P.W. 4) (who happens to be the sister-in-law(Sali) of the victim, P.W. 12) at 8:15 A.M. on 18.05.2003 to the officer-in-charge S.K. Puri, Police Station to the effect that informant’s brother-in-law Dr. Ramesh Chandra a Neurosurgeon having residence at Mithapur area Patna with nursing home at Sahdeo Mahto Marg, Patna had gone out in the night of 17.05.2003 but could not return. On 18.05.2003 at 6:00 A.M., one person made a phone call which was picked up by the servant of the victim namely Sushil(not examined) who was conveyed that the victim’s car having registration No. BR IB 5415 Tata Indica is parked near New Bus Stand and its key is lying underneath the back wheal of the car, 5 hence the caller directed the servant to pick up the vehicle. Immediately thereafter another phone call came at the clinic of the victim and the caller wanted to talk with Harischand and the second caller also conveyed that the victim’s car is parked near the bus stand with further information that the victim will talk in the evening. On inquiry the caller conveyed that he is speaking from Begusarai. The written report further stipulates that the informant(P.W.4) came to know about the kidnapping when the compounder of the victim conveyed to her at 6:30 A.M. on 18.05.2003.The information of the compounder was based on telephonic information received by victim’s servant Sushil (not examined). Thereafter the informant went near the new bus stand and found the car of the victim parked. On the back seat of the car broken spectacle and old match box with scattered match sticks of Dr. Ramesh Chandra were found. At the bus stand the compounder conveyed that in the previous night at 8:30 the victim(doctor) left his clinic to participate in some social gathering and from the social gathering the victim went to Dr. Ajay Kumar’s(P.W. 10) house situated at Ashiana Nagar. Thereafter the victim (P.W. 12) left Dr. Ajay Kumar’s house (P.W. 10) for his own house at 10:45. This fact was conveyed to the compounder when he talked with Dr. Ajay (P.W. 10). Hence it is alleged that 6 some unknown criminals have kidnapped Dr. Ramesh Chandra as he was alone in the car since his Driver was on leave since 09.05.2003. Hence on the basis of the aforesaid information request was made through the written report for taking action in the matter. On the basis of the aforesaid written report(Ext-3) Jakkanpur P.S. Case No. 70 of 2003 was registered under Section 364A I.P.C. on 18.05.2003 at 10:20 A.M. The confession of Anil Kumar Singh(Ext-15) was recorded by police at 5:00 P.M. at Danapur P.S. when he was arrested in Danapur P.S. Case No. 233 of 2003 in connection with a case of car theft. Anil Kumar Singh in his confessional statement admitted that he is involved in the conspiracy of kidnapping of Dr. Ramesh Chandra in which the main accused are Narendra Pandey @ Sunil Pandey, M.L.A. and Pappu Singh whereas other accused are 1. Ranvijay Pratap Singh 2. Sanoj Kumar 3. Dhiraj Kumar Singh 4. Munna Singh 5. Chitranjan Kumar @ Bablu 6. Santosh Kumar Tiwari @ Bara Babu. Anil Kumar Singh also confessed that the abducted Dr. Chandra has been kept by Pappu, Ranvijay and others in some village of Naubatpur but the exact location is known to Ranvijay Pratap 7 Singh who is residing with Sanoj Kumar at village-Nandlal Chapra whose house location is known to Binay. On the basis of confession of Anil Kumar Singh(Ext-15) the police apprehended Binay from village-Chitnawa who conveyed that Ranvijay Pratap Singh @ Bablu and Sanoj Kumar are residing at Nandlal Chapra as tenant in the house of P.W. 1. Consequently police apprehended Sanoj and Ranvijay from the House of P.W. 1 and the confession of Ranvijay(Ext-14) recorded on 20.05.2003 at 11:P.M. to the effect that Ranvijay and Sanoj work in a gang consists of several persons which includes Sunil Pandey, M.L.A., Ranjeet and others and under a conspiracy, the kidnapping of Dr. Chandra was done on 17.05.2003 in which Sanoj, Dhiraj, Munna Singh, Chitranjan were on motorcycle whereas four persons were in Maruti Van which was being driven by Pappu Singh whereas Ranvijay, Ranjeet, Sanoj, Tinku were sitting beside the captive, Dr. Chandra. Subsequently the victim was taken to village Chiraura under Naubatpur P.S. where firstly kept in the house of Arun Singh and then shifted to the house of Bhola Singh with the help of Ravindra Singh, Mukhiya and Raj Kumar, both resident of village Chiraura. 8 From the possession of Ranvijay Pratap Singh one mobile bearing No. 9835066983 and two sim cards bearing 9835250799 and 9835024349(of the victim Dr. Chandra) along with a telephone diary were recovered and seizure list was prepared on which one Tapeshwar Prasad (PW 1) and Pawan Kumar Jaiswal (not examined) were made witnesses. From Sanoj also a telephone directory, a cell phone without sim card and Rs. 1500/- were recovered and seizure list (Ext-7) was prepared on which Tapeshwar Pd (P.W. 1) and one Ranjan Kumar (not examined) were made witnesses. Ranvijay Pratap Singh in his confession accepted that though other accused persons subsequently left the place of captivity but Munna Singh, Chitranjan and Santosh were guarding the victim, Dr. Chandra at village Chiraura. Consequently on the basis of confesion (Ext- 14) of Ranvijay the police went to the village Chiraura, recovered the victim, Dr. Chandra from the house of Bhola Singh where three persons Munna Singh, Chitranjan and Santosh Kumar Tiwari were also arrested with three loaded pistols, one each, along with live cartridges. Then seizure list was prepared (Ext-10) on which P.W. 8 and P.W. 9 were made seizure list witnesses and for the same Naubatpur P.S. Case No. 90 of 2003 was registered under Section 25(1)B and 26 of the Arms Act on 21.05.2003 at 9 6:30 A.M. Subsequently on 21.05.2003, the statement of Dr. Ramesh Chandra under Section 164 Cr.P.C.(Ext-8) was recorded by learned Judicial Magistrate, Ist Class, Patna where Dr. Chandra disclosed that how his car was first dashed by a Maruti Van and then he was kidnapped at Serpentine Road, near Panchmandir. From the conversation of the accused persons victim came to know about accused names as Munna Singh, Chitranjan and others and during captivity few accused names were also gathered by the victim as Ranjeet, Pappu, Bablu and Sanoj. In 164 Cr.P.C. statement the victim Dr. Chandra also disclosed that ransom demand of Rs. 50,000,00/-(fifty lacs) was made by the accused persons. It is pertinent to record here that another F.I.R. for the same occurrence was registered being Kotwali P.S. Case No. 301 of 2003(Ext-16) on 23.07.2003 under Sections 364A, 365, 120B/34 I.P.C. against seven persons namely 1. Ranvijay Pratap Singh @ Babloo Singh 2. Sanoj Kumar 3. Dhiraj Kumar Singh 4. Munna Singh 5. Chitranjan Kumar 6. Vinay Kumar 7. Santosh Kumar Tiwari @ Bara Babu through which request was made to officer-in-charge Kotwali P.S. to do further investigation and 10 submit the investigation report as from the 164 Cr.P.C. statement (Ext-8) of the victim, Dr. Chandra and the materials found during investigation in para 65 and 99 of the case diary, it appears that the case falls within the territorial jurisdiction of Kotwali P.S as the kidnapping has been done at Daroga Rai Path near Panchmandir, hence the City S.P., Patna vide Memo No. 624 had directed the Kotwali P.S. to submit the investigation report to the Court of learned C.J.M. After investigation the police submitted chargesheet vide Charge Sheet No. 257 of 2003 under Sections 364A, 365, 120B/34 IPC against seven accused persons namely 1.Ranvijay Pratap Singh @ Babloo Singh 2.Sanoj Kumar 3.Dhiraj Kumar Singh 4.Munna Singh 5.Chitranjan Kumar @ Babloo 6.Santosh Kumar Tiwari @ Bara Babu 7.Anil Kumar Singh though subsequently on 13.11.2003 and 14.06.2004 chargesheets were also submitted against other accused Narendra Pandey @ Sunil Panday, M.L.A. and Lulan Sharma respectively under the aforesaid provisions of the I.P.C. But with regard to accused Mritunjay Kumar Singh, Ranjeet Kumar, Raj Kumar Singh, Sahjanand Sharma and Deepu, the investigation was allowed to continue. 11 The case was committed to the Court of Sessions on 25.04.2005 and charges were framed on 21.01.2005 by the learned 4th Additional Sessions Judge, Patna against eight accused persons namely 1. Ranvijay Pratap Singh @ Babloo, 2. Sanoj Kumar 3. Dheeraj Kumar Singh 4. Munna Singh 5. Chitranjan Kumar @ Babloo 6. Santosh Kumar @ Bara Babu 7. Anil Kumar Singh 8. Lulan Sharma under Sections 364A/34, 365/34, 364A, 365/120B I.P.C., whereas against Munna Singh and Narendra Pandey @ Sunil Pandey the charges were subsequently framed. Subsequent to the framing of charge accused Ravindra Singh @ Mukhiya made himself absent and consequently nine accused persons were put on trial, out of which seven accused/convicts are appellants before this Court as two persons namely Santosh Kumar Tiwari and Sanoj Kumar did not appear on the date of judgment, hence against them order of conviction was not passed. The prosecution examined 16 witnesses of which P.W. 1 is Tapeshwar Prasad, the seizure (Exts 5, 6 and 7) witness of the seizure lists made from Ranvijay Pratap Singh and Sanoj Kumar but he has been declared hostile. P.W. 2 and P.W. 3 Naresh 12 Singh and Harishchandra Prasad are the compounders of Dr. Ramesh Chandra (the victim). P.W. 4 Nirmala Suxena is the informant and sister-in-law(Sali) of the victim. P.W. 5 Mahesh Chandra Verma is the younger brother of the victim. P.W. 6, Rekha Chandra is the wife of the victim. P.W. 7, Ramashish Prasad Gupta is the private guard and had a tea shop at new bus stand from where the vehicle of the victim was recovered but he has also been declared hostile. P.W. 8 and P.W. 9, Sashi Bhushan Sharma and Nityanand Kanungo are the seizure list (Ext-10) witnesses with regard to the seizure of arms from the possession of Munna Singh, Chitranjan Kumar and Santosh Kumar Tiwari arrested from the place of captivity but they have also been declared hostile. P.W. 10 is Dr. Ajay Kumar in whose house the victim took the dinner on the alleged date of the occurrence prior to the kidnapping. P.W. 11 Neelam Kumari is the first I.O. of Jakkanpur P.S. No. 70 of 2003. P.W.12 is Dr. Ramesh Chandra, the victim. P.W. 13 Sanjay Kumar is the second I.O. P.W. 14 is Dillu Lohar who was officer-in-charge of Naubatpur P.S. and the informant of Naubatpur P.S. Case No. 90 of 2003(Ext-11) dated 21.05.2003. P.W. 15 is Md. Mukim, who was Officer-in-charge Kotwali P.S. who recorded the confessional statement (Ext-14) of Ranvijay Pratap Singh @ Babloo. P.W. 16 is 13 Ravi Prakash Singh, who was Officer-in-charge, Danapur P.S. who recorded the confessional statement(Ext-15) of Anil Kumar Singh in Danapur P.S. Case No. 233 of 2003(not exhibited). P.W. 1, 8 and 9 are the seizure list witnesses. P.W. 1, Tapeshwar Prasad is the witness of seizure (Exts. 6 and 7) of mobile and diary recovered from Ranvijay Pratap Singh and Sanoj Kumar at village Nandlal Chapra but he has been declared hostile. P.W. 8 Sashi Bhushan Sharma and P.W. 9, NItyanand Kanungo are the witnesses to the seizure (Ext. 10) of arms recovered from Munna Singh, Santosh Kumar Tiwari and Chitranjan Kumar from the place of captivity in Naubatpur P.S. Case No. 90 of 2003 but they have also been declared hostile as they claimed that their signature were obtained on a plain paper. P.W. 7, Ramashish Prasad Gupta is a private guard and has a tea shop at Bigrahpur Bus Stand from where the vehicle was recovered but he has also been declared hostile. P.W. 2 and 3 Naresh Singh and Harish Chandra Prasad are the compounders of the victim Dr. Ramesh Chandra and they both deposed only to the effect that they came to know about the kidnapping from the servant of the victim Sushil (not examined) who received the information on telephone. 14 Subsequently P.W. 2 and 3 both went to the new bus stand where the vehicle of the victim was found parked. P.W. 5 Mahesh Chandra Verma is the younger brother of the victim, Dr. Chandra who also received the information on 18.05.2003 from the servant of the victim Sushil(not examined) about the captivity and the telephone calls being received. P.W. 6 Rekha Chandra is the wife of the victim, Dr. Chandra who admits that on the date of occurrence, she was in Krisland(USA) and her son Dr. Rajesh Chandra was informed about the kidnapping and on 21.05.2003 the Kotwali P.S. informed about the recovery of the victim Dr. Ramesh Chandra. P.W. 4 Nirmala Suxena who happens to be the sister-in- law(Sali) of Dr. Chandra is the informant who came to know on 18.05.2003 at 6.30 A.M. through the servant Sushil(not examined) of Dr. Chandra about non return of Dr. Chandra and on the said information the informant went to the new bus stand and found the car of Dr. Chandra parked. On the back seat of the victim’s car this witness found the spectacle of Dr. Chandra in a broken condition along with scattered match box and on the basis of information received by her, she lodged the F.I.R. which 15 was registered as Jakkanpur P.S. Case No. 70 of 2003(Ext-3). P.W. 10 is Dr. Ajay Kumar whose evidence only suggests that Dr. Chandra took dinner at his residence on the alleged date of the occurrence prior to his kidnapping. Hence P.W.s 2, 3, 4, 5, 6, and 10 are hearsay witnesses and they are witness only to the fact of kidnapping and recovery of the vehicle of victim. P.W. 11, Nilam Kumari is the first I.O. of the case who admits about the submission of the written report by P.W. 4. In para 6 this witness has stated that on 22.05.2003 at 5:30, Anil Kumar Singh, the appellant of Cr. Appeal No. 1145 of 2008 was arrested by Danapur P.S. in a car theft case where he confessed(Ext-15) that he is involved in the conspiracy of the kidnapping of Dr. Ramesh Chandra. The confession of Anil Kumar Singh has been referred in para 56 of the case diary. This witness has also deposed that Anil Kumar Singh though stated that the victim has been kept in the village Chiraura but the actual whereabout is known to Ranvijay and Bablu whose residence is known to Binay Kumar, then Binay Kumar was arrested and on the information supplied by Binay Kumar, Ranvijay Sanoj and Dhiraj were arrested on 20.05.2003 at 11:00 16 P.M. from village- Nandlal Chapra. The confession(Ext-14) of Ranvijay Pratap Singh was recorded through which it was discovered that the victim has been confined in village Chiraura under the Naubatpur P.S. in the house of Bhola Singh and demand of ransom has been made to tune of Rs. 50 lakhs of which Rs. 25,000,00/-(twenty five lacs) was to be paid to Sunil Panday, M.L.A. and the rest Rs. 25,000,00/-(twenty five lacs) was to be shared by the rest accused persons. This witness also deposed about the recovery of the mobile and sim cards particularly sim card of the victim Dr. Chandra from Ranvijay and the seized telephone directory containing the numbers of the informant and victim’s clinic and resident. This witness has also stated that from the place of captivity, three accused persons, namely, Munna Singh, Chitranjan and Sanoj Kumar were arrested with three country made loaded pistols along with cartridges (one each). Consequently Naubatpur P.S. Case No. 90 of 2003(Ext-12) was registered against three arrested persons on the written report of Dillu Lohar, (P.W. 14) Officer-in-charge of Naubatpur P.S. In para 44 this witness has stated that nothing incriminating was recovered from Binay. Though in his deposition (para 65 and 75) this witness has stated that he made no initiative ever for conducting T.I. parade of accused persons. 17 P.W. 12 is Dr. Ramesh Chandra, the Victim. He is the only witness to the actual occurrence and as per the evidence in para 1 he was coming from the house of Dr. Ajay on 17.05.2003 at 10:45 P.M. driving the car himself but as soon as he reached near Panchmandir in serpentine road, one van came dashed his car thereafter four persons came and on threat of pistol got him seated in the back seat of the car and two persons sat beside him and one other person started driving the vehicle. This witness has stated in para 4 that the accused persons conveyed that they have kidnapped him for ransom, hence he has to pay Rs. 50,000,00/- for which the victim shown helplessness as both the wife and the son were outside the country then the accused persons took the telephone numbers of clinic and the residence and also snatched the mobile phone of the victim. This witness has further stated in para 3 that subsequently his eyes were closed by cotton strap. The victim was initially kept in old house having mud tiles roof and then shifted to another house. In para 6 this witness has stated that on 21.4.2003, in the morning, he heard the sound and thereafter the police barged into the area of captivity resulted into his release and from the said place of captivity three accused namely Munna Singh, Santosh Kumar Tiwari and Chitranjan Kumar were arrested who were guarding 18 the victim. In para 8 this witness has stated that during conversation they used to address each other as Pappu, Bablu, Sanoj and in para 9 this witness has refused to identify Lulan Sharma, Sanoj and Binay in the dock though P.W. 12, the victim, claims that he can identify the other accused persons on seeing them. In para 12 this witness has stated that police never took him for identifying the accused on T.I. parade though in para 14 this witness has stated that he has no occasion to request for holding T.I. parade nor any application to that effect was filed. P.W. 13 is Sanjay Kumar who was the officer-in-charge of Kotwali P.S. Patna, the second I.O. of the case who took over the investigation on 23.05.2003. P.W. 13 admits that Binay was arrested from village Chitnawa and on his information Ranvijay Pratap Singh @ Bablu, Sanoj Kumar and Dhiraj were arrested from Nandlal Chapra. From Ranvijay Pratap Singh one mobile bearing mobile No. 9835066383 was recovered along with two sim cards bearing 9835024349 (sim of Dr. Chandra) and 9835250799. In para 10 this witness has stated that he has verified about the ownership of the mobiles of Dr. Ramesh Chandra, Anil Kumar Singh and Ranvijay Pratap Singh from the mobile company where it was found that the real owner of the mobile number bearing No. 9835066983 is Virendra Kumar 19 where Anil Kumar Singh was the owner of mobile No. 9835030186 and Dr. Chandra was the owner of mobile No. 9835024349 whereas one Viseshwar Singh was the owner of mobile No. 9835250799. In para 12 this witness has also stated that he has taken out the print out of the informant’s (P.W. 4) mobile No. 9835011233 from which it was traced that accused talked to informant on 20.05.2003 from the mobile of the victim Dr. Chandra at 7:02:41 A.M. In para 13 it is mentioned that Sanoj’s mobile print out(not exhibited) was also taken which disclosed that he talked on Ranvijay’s mobile on 18.05.2003 at 10:19 A.M. for 62 seconds and subsequently Sanoj Kumar talked to Anil Kumar, once, to Mritunjay, three times and to Ranvijay Pratap Singh, seven times. In para 25 this witness has admitted that from the print out of the mobile it was apparent that no call was made on the mobile of Sunil Pandey M.L.A. In para 31 this witness has accepted that on the basis of the print out, ownership can not be proved. In para 36 it has been stated that he felt no need for taking out the print out