Amitav Kumar Gupta, J@mdashThe instant criminal revision is directed against the judgment dated 28.01.2014 passed by the learned Addl. Sessions Judge-II, Deoghar in Criminal Appeal No. 136 of 2004 affirming the order dated 18.10.2004 passed by the learned Addl. Chief Judicial Magistrate (Special Juvenile Court), Deoghar in connection with Deoghar P.S. Case No. 213 of 2001 corresponding to G.R. No. 626 of 2001/T.R. No. 85 of 2004, whereby the juvenile-petitioner was held guilty for the charges under Sections 364A/302/201/120B read with 34 of the Indian Penal Code (for short IPC) and the father of the petitioner was ordered to execute personal bond of Rs. 10,000/- along with two local sureties and the petitioner was directed to maintain good behaviour for two years and under the supervision of the Probation Officer, Deoghar. He was directed to mark his attendance at the end of every month before the Probation Officer, who would submit a bi-annual report to the Court/Board.
2. Brief fact of the prosecution''s case is based on the written report (Ext.1) dated 09.10.2001 of informant Samir Kumar Mukherjee (P.W.8); that he had been residing in his newly constructed house at Castor Town since July. That on 08.10.2001, at 6 p.m., his wife-Sujata Mukherjee (P.W.10) told him that sealed envelope containing a letter was kept at the gate. In the letter, ransom of Rs. 2 lakhs was demanded and if he wanted to save his son the said amount should be delivered and kept on 10.10.2001 near the electric pole in front of the house of Madan Mohan Prasad. It contained a warning not to inform the police. His wife told him that his son-Arpan Mukherjee (alias Jai) had returned home from the school at 4 p.m. and after having his meal, he left the house at 4.30 p.m. telling her, P.W.10, that he was going to the house of Sunil Das and would return in 10 minutes. It is stated that Sunil Das''s family resided in the house of Madan Mohan Prasad where the informant had earlier resided as a tenant. Since his son did not return, P.W.8 became suspicious and went in search of his son. That in the meantime, at 5.30, Sunil Das came to his house asking the whereabouts of Jai whereupon his wife (P.W.10) told Sunil Das that Jai had gone to his house. It is alleged that his son had been kidnapped to fulfill the ransom demand of Rs. 2 lakhs.
3. On the basis of the F.I.R investigation was conducted and chargesheet submitted against Sunil Kumar Das, Prakash Kumar Das, Deo Krishna Prasad, Rajendra Thakur and Amit Kumar Gupta whereafter cognizance was taken under Sections 302, 364A, 201, 120B read with 34 IPC. The petitioner was found to be a juvenile, accordingly, his case was transferred before the Juvenile court where he faced the enquiry. The court found him guilty for the offences under the aforesaid Sections whereafter on appeal judgment of the Special Magistrate, Juvenile Court was upheld and affirmed by the impugned order of the appellate court.
4. Learned counsel for the petitioner, while assailing the impugned order contended that both the trial court and appellate court have failed to consider and appreciate that there is material contradictions in the testimony of the informant (P.W.8) vis-a-vis the F.I.R. That in the F.I.R there is no recital that P.W.10 had seen this petitioner keeping the letter at the gate of the house of the informant. That P.W.2 has stated that she had seen the petitioner dropping the letter and running away from the house of the informant. That P.W.2 had told this fact to P.W.10, the wife of the informant. That the F.I.R was lodged after much delay and there is no recital in the F.I.R that P.W.10 had informed P.W.8 that P.W.2 had disclosed to her that she had seen this petitioner dropping the letter. That there is no circumstantial evidence that the petitioner was last seen with the deceased neither any incriminating article was recovered from his possession. That both the courts below have committed error in law by relying on the confessional statement(Ext.9) of the petitioner recorded under Section 164 Cr.P.C. That co-accused-Deo Krishna Prasad alias Laloo has been acquitted of the charges in Criminal Appeal No. 123 of 2003 by order dated 04.08.2003 which is reported in
On the above grounds it is urged that the judgment and order holding the petitioner guilty by the juvenile special court and appellate court is fit to be set aside and the petitioner deserves to be acquitted of the charges.
5. On the other hand, learned A.P.P. has argued that the trial court and appellate court have considered the testimony of the witnesses. The discovery of the dead body of the deceased (Jai @ Arpan) was made on the basis of the confessional statement (Ext. - 9) of this petitioner and Ext. - 8 of co-accused-Prakash Das. It is contended that P.W.10 and P.W.2 had seen this petitioner dropping the ransom letter (Ext.3). That the Appellate Court has discussed the evidence and found there is circumstantial evidence on the basis of the confessional statement of the petitioner and co-accused and the petitioner was last seen with the deceased as testified by P.Ws.10 and 2. Thus, the chain of circumstances pointing to the guilt of the accused has been established, consequently the impugned order does not warrant any interference by this Court.
6. Heard. On perusal of the judgment and the materials on record, it is evident that in the written information (Ext.1), the informant (P.W.8) has nowhere stated that P.W.10, i.e. his wife, had told him that this petitioner had come and called his son from the house. P.W.8 in his deposition in court has embellished his written statement by stating that he had seen his son-Jai going with this petitioner at 4.30. P.W.8 has stated that P.W.7 had told him that he had seen this petitioner and the informant''s son going together but P.W.7 has not supported the testimony of P.W.8, rather P.W.7 has stated that P.W.8 had come to him and he had gone alongwith P.W.8 in search of P.W.8''s son and at 4 p.m. they visited the house of the petitioner where they met his father who told them that the petitioner had left the house in the company of Prakash and Amit. P.W.7 has been declared hostile. P.W.2 has deposed that she was washing utensils near the gate of her house and at 4.30 she had seen this petitioner dropping a letter near the gate of the house of P.Ws.8 and 10 and running away. Thereafter, she heard P.W.10 crying whereupon she went and enquired from P.W.10 who told her that the petitioner had taken away Jai and P.W.10 had found the envelope containing the ransom demand of Rs. 2 lakhs failing which Jai would be killed. At that time P.W.2 disclosed to P.W.10 that she had seen the petitioner dropping the letter and running away. P.W.2 has further stated that while she was in the house of P.W.10, then at that time P.W.8 alongwith 4-5 persons came and informed that the petitioner and Prakash were not traceable.
It is noticed that testimony of P.W.2 contradicts the testimony of P.W.10 who has deposed that at 4.30 p.m. when Arpan was going out of the house, this petitioner had come to call him and she had gone to the gate to see off her son, Arpan and she had seen Arpan (deceased) going alongwith this petitioner and at a distance she had seen Prakash Das, Amit Gupta and Lalu standing ahead. As noticed, P.W.2 has not stated that she had seen P.W.10 coming to the gate with her son who had gone with this petitioner rather P.W.2 has deposed about the dropping of the letter by the petitioner and running away at 4.30. The facts disclosed on P.W.2''s testimony cannot be termed as normal contradictions rather they are vital contradictions. There are embellishments and improvement in the prosecution case.
P.W.3 is the tutor and he has stated that when he visited the house of the informant at 6 p.m., then he saw P.W.10 crying and P.W.10 told him that her son had left the house at 4 p.m. and had told her that he was going to the house of this petitioner but he did not return and this petitioner had come at 5.30 looking for her son. That thereafter, the petitioner had gone away and the ransom letter demanding Rs. 2 lakhs was found. It is abundantly clear that the testimony of P.W.3 is inconsistent with the testimonies of P.Ws.2, 8 and 10. P.W.4 has stated that the ransom letter was produced before the police and a seizure list was prepared on which he had signed. That on 11.10.2001, police had come with two persons and he alongwith P.W.8 and P.W.3 had accompanied the police to the dilapidated house and after breaking open the lock, the dead body of Arpan Mukherjee was found lying in the room. The inquest report was prepared and he had signed on the inquest report. The police had also seized a pair of leather slippers and he had signed on the seizure list. That on both the seizure lists he had wrongly mentioned the date as 10.10.2001 instead of 11.10.2001. In cross-examination he has further stated that the seizure list was prepared at the police station where he had signed on the seizure lists.
P.W.5 has deposed regarding going with the informant to the police station and he had signed on the seizure list of the ransom letter. That on 11.10.2001 they had come to know about the discovery of the dead body and he had signed on the inquest report as well on the seizure memo of the chappal. P.Ws.6, 7 and 8 have been declared hostile. P.W.9 is Dr. Rameshwar Mahto who has opined "that death was due to asphyxia as a result of throttling and there was a vital injury on the head caused by hard and blunt substance." P.W.11 has proved the post-mortem report. P.W.12 is a formal witness.
7. As noticed from the evidence of the P.Ws.2,8 and 10 that there is material contradiction in their testimonies regarding the taking away of the deceased by this petitioner. It is surprising that the trial court and the appellate court have considered and relied upon the certified copy of the confessional statement under Section 164 Cr.P.C. Apparently the Judicial Magistrate who recorded the confessional statement of this petitioner and co-accused has not been examined.
8. The placing of reliance on such confessional statement without giving an opportunity for cross-examination is fatal to the prosecution''s case tantamounting to denial of fair opportunity to the defence to cross-examine the witness. The appellate court has also failed to appreciate and consider the fact that the Investigating Officer was not examined by the prosecution to bring on record the date and circumstances, under which the juvenile in conflict of law, was arrested or produced before the Magistrate for recording his confessional statement.
9. As per the post-mortem report, the death of the deceased (Arpan Mukherjee) was homicidal. The witnesses who had accompanied the police have nowhere stated that the dead body was discovered on pointing of the petitioner. The trial and appellate court have placed reliance on the certified copy of the confessional statement under Section 164 Cr.P.C. of the petitioner before the Judicial Magistrate. The evidentiary value of the confessional statement has been deliberated and discussed in the case of co-accused - Deo Krishna Prasad alias Laloo vs. State of Jharkhand, reported in
10. In the aforesaid decision, the Investigating Officer and the Judicial Magistrate were examined whereas in the instant case, it is noticed that neither the Investigating Officer nor the Judicial Magistrate were examined and despite this the trial and the appellant have relied on the certified copies of the confessional statements. Apparently fair trial has been denied to the petitioner due to non-examination/cross-examination of the Investigating Officer and the Judicial Magistrate resulting in the denial of fair opportunity of hearing which has prejudiced the defence.
11. Thus, in view of the discussions made above, the evidence on record and the decision of the Division Bench holding the confessional statements to be illegal and the inconsistency and infirmity in the testimony of the witnesses, it is held that a grave shadow of doubt is cast over the prosecution''s case and the benefit of doubt accrues to the petitioner. Consequently it is held that the prosecution has not been able to establish the charges under Sections 364A, 302, 201, 120B read with 34 of Indian Penal Code.
12. Accordingly, the judgment and order of the Juvenile Court, Deoghar dated 18.10.2004 in T.R. No. 85/2004 and the judgment dated 28.01.2014 passed by the learned Additional Sessions Judge - II, Deoghar in Cr. Appeal No. 136/2004 is hereby set aside and the petitioner is acquitted of the said charges and personal bond and sureties to the bond, if any, stand discharged.
13. In the result, the revision is hereby allowed.
