Crl.A. 207/2008 BEFORE HON’BLE MR. JUSTICE I.A. ANSARI HON’BLE MR. JUSTICE C.R. SARMA By this set of appeals, the appellants have challenged the judgment and order, d ated 22.9.2008, passed by the learned Addl. Sessions Judge (F.T.C.) No. 4, Kamru p, Guwahati, in Sessions Case No. 88(K)/07 (arising out of GR case No. 3945/1992 ). 2. All these appeals, arising out of the same judgment and order, i nvolving similar facts and questions of law, with the consent of the learned cou nsel, appearing for the parties, were heard together and for the sake of conveni ence and brevity, we propose to dispose of the said appeals by this common judgm ent and order. 3. By the impugned judgment and order aforesaid the learned Addl. S essions Judge convicted the appellants, who were the accused persons, in Session s Case No.88(K)/2007, under Section 364A read with Section 34 of the Indian Pena l Code (hereinafter referred to as ’IPC’) and accordingly sentenced, each of the m, to suffer life imprisonment and pay fine of Rs.5000/-, in default suffer rigo rous imprisonment for another period of six months each for their convictions, u nder Section 364 A/34 IPC. Aggrieved by the said conviction and the sentence, the appellant s have individually come up with the present appeals. 4. We have heard Mr. A.M. Mazumdar, learned senior counsel, assiste d by Ms. D Borgohain, learned Amicus Curiae, appearing for Mr. Yubaraj Kalita, a ppellant in Criminal Appeal No. 193/2008, Mr. K.D. Chetri, learned counsel, appe aring for Sri Chandiram Kalita, appellant in Criminal Appeal No. 207/2008 and Ms . P. Chakravorty, learned Amicus Curiae, appearing for, Sri Dipak Talukdar, appe llant in Criminal Appeal No. 146(J)/2008. We have also heard Mr. K.M. Majumder, learned Addl. Public Prosecutor, appearing for the State. 5. The facts of the prosecution case, in brief, as may be required for disposal of the appeals at hand, are as below : 6. Sri Adwita Avatar Chakravorty, aged about 6 years (as he then wa s), son of Sri Jibo Das Chakravorty, President of the International Society for Krishna Consciousness (for short ’ISKON’), was a student of Class I, of the Sist er Nibedita School, Silpukhuri. As usual, on 24.9.1997, he was escorted to the s chool, at about 9.15 A.M., by a disciple of ISKON. Though his school hour was up to 1 P.M., Sri Adwita was required to remain at the school up to 4.30 P.M., for attending tutorial classes. On the same day, at about 4.30 P.M., a security sta ff of ISKON went to the school to fetch Adwita Avatar Chakravorty, but he was in formed by the school authority that Adwita had already been taken by somebody. T he said security staff reported the matter to Sri Jibo Das Chakravorty @ Sanjib Chakravorty (PW.1) and, on being so informed, Sri Jibo Das, along with his wife, rushed to the school aforesaid and they were informed, by the Principal (PW.4) of the school, that their son had been taken away by somebody from the school. T he Mid wife (PW.2) of the school, who had handed over the child, to the kidnappe r, informed PW.1 that she would be able to identify the person, who had taken hi s son from the school. In view of the above, the father of Adwita Chakravorty i.e. PW.1 informed police , by lodging an FIR (Ext.1), with the officer-in-charge, Chandmari Police Statio n, Chandmari. On receipt of the said FIR, police registered Chandmari P.S. Case No. 264/97, under Section 364 IPC and launched investigation into the matter. 7. On the following day, i.e. on 25.9.1997, someone, identifying hi mself as a representative of a farmers’ organisation, telephonically demanded Rs . 10,00,000/- from the informant i.e. the father of the said child, as ransom to wards the release of the said kidnapped boy and this was brought to the notice o f the police. Again, on 27.9.1997, PW.1 received a telephonic information to the effect that his son would be released if an amount of Rs. 80,000/- was paid on the same day, of course, subject to the condition that the balance amount should be paid later on. The said caller asked the informant to go to a place, namely, ’Bangsar’, with the money. Accordingly, after arranging Rs.81,000/-, the inform ant went to the police station to inform the matter and, therefrom, proceeded to Bangsar, along with Sri J.C. Barman (PW.8), the then Addl. S.P., in a sumo vehi cle, driven by Mr Akhil Lahkar (PW.7), who was known to the informant. On their arrival at Bangsar, at 5 P.M., a boy, who came by riding a bicycle, approached a nd asked them to follow him into the village; but, as the informant and his part y expressed their reluctance to proceed further into the village, the said boy w ent back and returned with another boy and insisted upon the informant to go wit h them inside the village. However, after negotiation, they agreed to hand over the child, at the said place, and accordingly, the said two boys brought Adwita on a bicycle and handed him over to PW.1, who, immediately, put him into the veh icle. In the meantime, another boy came flashing a torchlight at their vehicle. Thereafter, PW.1 handed over the bag, containing the money, to one of the boys, who handed over the same to the other boy and the boy, to whom the money was ini tially given, shook hands with the informant chanting Hare Krishna . Thereafter , when the said boy shook hands with Sri J.C.Barman, the latter tightened grip h olding the hand of the boy and signaled the driver to move the vehicle ahead and , thus, the said boy, who was, subsequently, identified as Yubaraj Kalita, was d ragged along with the vehicle and he was arrested by the waiting police party an d the police commandos. The bag, containing the money, was found by police, at t he place of negotiation. When Sri Yuboraj Kalita was dragged by Mr. J.C. Barman, the other boy (i.e. the second boy) continued to pull Sri Yuboraj to get him re leased, from the grip of Sri Barman and this boy was identified as Sri Dipak Tal ukdar i.e. the appellant in Criminal Appeal No. 164(J)/2008. 8. During the course of investigation, police examined the witnesse s, seized the bag containing Rs.38.830/- from the place of occurrence and a revo lver with two live cartridges, a pair of spectacles, a radio and a pocket diary from the possession of Sri Yuboraj. At the close of the investigation, police laid charge sheet, against the accused-appellants and one Niranjan Kalita for the offence under Sections 364A/ 34 IPC. 9. The offence being exclusively triable by the Court of Sessions, the learned Sub-Divisional Judicial Magistrate, by his order, dated 01.03.2007, committed the case to the Court of Sessions for trial. 10. The learned Sessions Judge, by his order, dated 16.6.2007, frame d charge, under Section 364A read with Section 34 IPC, against the appellants an d Sri Niranjan Kalita. The charge was read over and explained to the accused per sons, to which they pleaded not guilty and claimed to be tried. 11. In order to bring home the charge, prosecution examined as many as ten witnesses including the investigating officer. At the conclusion of the e xamination of the prosecution witnesses, the accused persons were examined, unde r Section 313 Cr.P.C. They denied the allegations brought against them. Their pl ea was that of total denial, Sri Yuboraj Kalita, in his statement, given under S ection 313 Cr.P.C., pleaded that, from 17.9.1997 to 25.9.1997, he was undergoing treatment at the Gauhati Medical College Hospital and that the relevant papers, relating to his ailment, were taken by the police. He also stated that he was a rrested on suspicion. 12. Mr. A.M. Mazumdar, learned Senior counsel, assisted by Ms Borgoh ain, learned Amicus Curiae, appearing for the appellant, Sri Yuboraj Kalita, too k us through the evidence on record and also the impugned judgment and order and submitted that the learned trial Judge committed error by recording the convict ion without sufficient and cogent evidence on record. The learned Senior counsel further submitted that though the occurrence took place on 24.09.1997, submissi on of the charge sheet after about 10 years and the inordinate delay, in complet ion of the investigation, sufficiently indicate that the prosecution story, rega rding involvement of the appellants, is false and concocted. It has also been su bmitted by Mr. Mazumdar, learned Senior counsel, that the evidence, regarding id entity of the appellants, given by the PW 5 (i.e., the victim boy), who was 6(si x) years old, at the relevant time, and Smt. Giribala Das and Smt. Devi Dey, who had allegedly claimed to have seen the appellant, Sri Yuboraj Kalita only once, that too for a moment, i.e., on the date of alleged kidnapping of the child fro m the school and the evidence of the informant (i.e., PW 1), PW 3 and PW 7 (Sri Akhil Lahkar) and PW 8 (Sri J.C. Barman), who claimed to have seen the said acc used persons, on the date of alleged recovery of the boy, are not at all believa ble inasmuch as it is not humanly possible to remember the identity of a person, seen for a moment and that too, after 10 long years. The learned Senior counsel further submitted that the evidence on record reveals that at the time of alleg ed handing over of the child, by the accused persons, darkness had descended, be cause PW-1 states that the third boy had used a torchlight to see the vehicle as well as PW.1 and his party. Therefore, it is contended, on behalf of the appellant, Yuboraj Kalita, that, du e to insufficient light, it is not believable that it was possible to identify t he appellants at the time of recovery of the boy. The learned Senior counsel fur ther submitted that, as the police officer (PW.8) was sitting on the rear seat, the evidence of PW.8 that he had shaken hands with Sri Yubaraj Kalita, through t he front door, is not at all believable. The learned Senior counsel has also con tended that, the evidence, that the victim boy had informed the school authority , on being asked, that the person, who had gone to the school to take him, was f rom his house and the fact that he had spent three days, playing with them, afte r the alleged kidnapping, indicate that there was a conspiracy behind the arrest of the appellants and that they have been falsely implicated in this case. The learned Senior counsel further submitted that, the appellant, Sri Yubaraj, had b een undergoing treatment, from 19.09.1997 to 25.09.1997, as an indoor patient in the Guwahati Medical College Hospital, and as such, the prosecution story, that this appellant was involved in kidnapping as well as the recovery of the boy, i s not at all believable. It has also been submitted by Mr. Mazumdar that it was the duty of the Court to call for and examine the medical papers regarding hospi talization of the appellant Sri Yubaraj. The learned Senior counsel further submitted that as no Test Identificat ion Parade was held, immediately after the arrest of the accused persons, the ev idence of the prosecution witnesses, regarding the identity of the accused perso ns, that they could identify them, after about 10 years, cannot be accepted. The learned Senior counsel further submitted that no ingredients of Section 364 A I PC has been established against the appellants and as such, the conviction and t he sentence recorded, under Section 364 (A) IPC, cannot be allowed to stand in t he eye of law. 13. In support of his contentions, the learned Senior counsel has re lied on the decision held in the case of State of Maharastra vs. Sukhdev Singh & Anr., reported in (1992) 3 SCC 700. 14. Adopting the arguments, advanced by the learned Senior counsel, appearing for appellant, Sri Yubaraj Kalita, Mr. K.D. Chetri, learned counsel, a ppearing for appellant, Sri Chandiram Kalita, and Ms. P. Chakravorty, learned Am icus Curiae, appearing for appellant Sri Dipak Talukdar, have submitted, that th e prosecution failed to prove, beyond all reasonable doubt, the involvement of t he said appellants and that their identity has also not been properly establishe d to show that they had committed the alleged offence. 15. Mr. Chetri, learned counsel, has further submitted that it is no t safe to rely on the evidence of PW.5, who was a six years old child at the rel evant time. In support of his contention, the learned counsel has relied on the decisions in the cases of Raju Alias Rajendra vs. State of Maharastra, reported in 1998 (1) SCC 169 and Panchii & Ors. vs. State of U.P., reported in (1998) 7 S CC 177. 16. Mr. K. M. Majumder, learned Addl. Public Prosecutor, appearing f or the State, supporting the impugned convictions and the sentences, has submitt ed that the involvement of the appellants has been well established by the prose cution witnesses and that there is no material contradiction in their evidence r endering their evidence unbelievable. The learned Addl. Public Prosecutor furthe r submitted that PW.1, PW.7 and PW.8 met the appellants, namely, Sri Yubaraj Kal ita and Sri Dipak Kalita, at about 5 pm i.e. during the time, when there was suf ficient sun light to identify them, and that PW.1 had conversation and negotiati on for quite long and as such, there was no difficulty to identify the said appe llants. It is also submitted that the said conversation, as well as the negotiat ion, facilitated PW.7 and PW.8 to observe and recognize the said appellants. It is also submitted, by the learned Addl. Public Prosecutor, that the kidnapped bo y, though six years old, had attained sufficient maturity and acquired intellige nce and, therefore, it is submitted that, as he had spent 4(four) long days in t he company of the appellants, he got sufficient opportunity to keep their identi ty in his mind. Therefore, it is submitted that, in view of the undemolished evi dence, given by PW.1, PW.7, PW.8, PW.2, PW.3 and PW.4, the evidence of PW.5 cann ot be disbelieved only on the ground that he was a child witness. 17. In order to appreciate the rival arguments, advanced by the lear ned counsel, appearing for the parties, and to examine the correctness of the im pugned judgment and order, we feel it necessary to, briefly, scan the evidence o n record. 18. Smti. Giribala Das, who deposed as PW.2, was the one, whose job was to take care of the children, at the Sister Nibedita School, wherein at the relevant time, the kidnapped boy (PW.5) studied. PW 2, in her evidence, has stat ed, that PW 5 was a regular student of their school, that on the relevant day, a man came to the school and enquired as to whether Adwita’s class was over and t hat, she, after informing the teacher about such enquiry, continued to attend he r duty. PW.2, identifying Sri Yubaraj i.e. the appellant, who was present in the dock of the court, stated that he was the person, who came to the school to tak e Adwita. She has further stated that, later on, Adwita’s parents came to the sc hool and informed that Adwita did not reach home. In her cross examination, thi s witness stated that she could not exactly remember who had gone to the school to take Adwita. 19. Ms Devi Dey, a maid of the said school, deposing as PW.3, stated that Adwita Chakravorty was a student of their school and that after the school hour, a person came to the school to take Adwita and as directed by the Madam, she had handed over Adwita to that man. She further stated that, as the man was not known to her, she had asked Adwita if he knew the man and Adwita replied by saying that the man was from his house. According to PW.3, on getting such respo nse from Adwita, she handed over the boy to the said man. PW.3 identified the ap pellant, Yubaraj Kalita, as the person, who had come to the school to take Adwit a from the school. She has further stated that subsequently, a security staff fr om the temple, followed by parents of Adwita, came to the school, in search of A dwita. In her cross-examination, she categorically stated that the appellant, Yu boraj Kalita, had taken Adwita from the school. She denied the suggestion that Y uboraj Kalita was undergoing treatment, in the hospital, on that day. 20. Smti. Dulon Guha Mallick, who was the Head Mistress of Sister Ni bedita School, deposing as PW.4, stated that Adwita Chakravorty and his father w ere known to her. She also stated that usually, a disciple, or a security staff, or some other person, from ISKON, used to bring Adwita to the school. She has f urther stated that she could identify the accused person, who had taken away the boy from the school, when the said accused was brought to the school by the pol ice after his arrest. In her cross-examination, she further stated that, subsequ ently, she came to know that Yubaraj Kalita had taken Adwita from the school on that day. She denied the suggestion that Yubaraj was in the hospital on the date of occurrence. All the said witnesses, in clear terms, stated that it was Yubaraj, one of the a ppellants, who had taken away the victim boy from the school on the date of occu rrence. Though the said witnesses were cross-examined, on behalf of the defence, no contradiction, to demolish their evidence, regarding identity of Yubaraj co uld be elicited. Therefore, their evidence that it was Yubaraj, who had taken aw ay the boy from the school, remained undemolished. 21. Supporting the evidence of PWs. 2, 3 and 4 aforesaid, Sri Adwita Avatar Chakravorty, who is the star witness in this case, deposing as PW.5, sta ted that Yubaraj was the man, who had taken him away from the school and that he had brought him away to his father on a cycle. Identifying Yubaraj, in the cour t, he stated, that it was Sri Yubaraj, who told him, in the school, that his fat her had sent him to take him home and that, as he too was willing to go home, he had told the school maid, Smti Devi Dey (PW 3), on being asked by her, that the said person was known to him. This evidence of PW.5 lends support in favour of the evidence of PW.3, who stated that, on being asked, Adwita had told her that the said man was from his house. PW.5 further stated that he was taken, from the school, in an auto rickshaw and, then, in a bus, to a temple. According to Adwi ta, after alighting from the bus, he was taken to a thatched house in a rickshaw and, thereafter, he was shifted from one house to another house. He further sta ted that, during his stay, in the custody of the accused persons, Dipak Talukdar (identified in court) used to stand on guard and the appellant Chandiram (ident ified in court), while guarding him, used to play with him. 22. Relying on the decision of Panchhi (supra), Mr. K.D. Chetri, lea rned counsel, appearing for the appellant, Sri Chandiram Kalita, has submitted t hat, PW.5 being a child, at the relevant time, his evidence cannot be, safely, r elied on. The learned counsel, relying on the decision of Raju @ Rajendra (supra ), has also submitted that, as no test identification parade was held, immediate ly after the occurrence, the identification of the accused person, for the first time in the court, by the witnesses, cannot be basis for conviction. In the case of Panchhi (supra), it was argued that it was risky to accep t the evidence of PW.1, who was a child. The Supreme Court, in the above mention ed case, observed : 11. Shri R.K. Jain, learned senior counsel, contended that it is very risky to place reliance on the evidence of PW 1, he being a child witness. According t o the learned counsel, the evidence of a child witness is generally unworthy of credence. But we do not subscribe to the view that the evidence of a child witne ss would always stand irretrievably stigmatized. It is not the law that if a wit ness is a child, his evidence shall be rejected, even if it is found reliable. T he law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. 12. Courts have laid down that evidence of a child witness must find adequate co rroboration before it is relied on. It is more a rule of practical wisdom that o f law (vide Prakash v. State of M.P. : (1992) 4 SCC 225, Baby Kandayanathil v. S tate of Kerela : 1993 Supp (3) SCC 667, Raja Ram Yadav v. State of Bihar : (1996 ) 9 SCC 287 and Dattu Ramrao Sakhare v. State of Maharastra : (1997) 5 SCC 341). (Emphasis is add ed) 23. Fact remains that, in the case at hand, PW.5 was a student of Cl ass-I at the relevant time and his age was about 6(six) years. He was taken by the miscreants, on 24.9.1997, from his school and, thereafter, kept in their cus tody till the evening of 27.9.1997. Thus, he spent almost four days with the per sons, who had kept him in their custody. PW.5, i.e. the victim boy, clearly stat ed that Yubaraj Kalita had taken him from the school and that he was brought, on a bicycle, to his father. He further stated that during his stay in the custody of the appellants, appellant, Sri Dipak Talukdar, used to guard him and Chandir am Kalita, while guarding him, used to play with him. As the said child had spen t considerable period with the appellants, there is sufficient reason to believe that he had no difficulty in identifying the appellants in the court. That apar t, his evidence that he was taken from the school by Yubaraj has been duly corro borated by PWs. 2, 3 and 4. The father of PW.5, who deposed as PW.1, stated that, Sri Yubaraj Kalita, who wa s apprehended at the time of recovery of the boy and Dipak Talukdar brought his son on a bicycle. This evidence of PW.1 lends sufficient corroboration to the ev idence, given by PW.5, PW.2, PW.3 and PW.4 regarding taking away of Adwita by Yu baraj Kalita, from the school and keeping him in confinement. Also there is suff icient corroboration of the evidence of PW.5 by PW.1 to make one believe that Yu baraj had brought PW.5, on a bicycle, to his father. PW.5, in his cross-examination, made on behalf of the appellant Yubaraj Kalita, denied the suggestion that Yubaraj was not the person, who had gone to his schoo l to take him therefrom. From the cross-examination of PW-5, no contradiction co uld be elicited to discredit his evidence. Therefore, the evidence of PW.5, rega rding the identity of the appellants and their involvement, remained undemolishe d. PW.1 (i.e. the father of the victim), PW.7 (i.e. the driver of the vehicle) a nd PW.8 (i.e. the police officer), who accompanied the informant, clearly stated that appellant, Yubaraj Kalita, had brought the child to them and that he was a pprehended after the