RAJAN MISHRA AND ORS. Vs. STATE OF ORISSA

JUDGEMENT

(1.) The above Criminal Appeals arise out of a common judgment dated 13.9.2007 passed by learned Sessions Judge, Sundergarh in S.T. Case No. 169 of 2004 in which the learned Sessions Judge has held the appellants of the above mentioned Criminal Appeals along with one Atul Pandey guilty of offences under Ss. 364A/34; 342/34 & 120B, IPC and accordingly, convicted them thereunder. Consequently, the learned Sessions Judge, Sundergarh sentenced all four appellants along with Atul Pandey to undergo imprisonment for life and to pay a fine of Rs. 10,000/ - each in default to undergo R.I. for two years each under Ss. 364A/34, IPC, R.I. for ten years each and to pay a fine of Rs. 5,000/ - each in default to undergo R.I. for one year each under Sec. 120B, IPC and to undergo R.I. for six months each under Ss. 342/34, IPC. He further directed that all the substantive sentences to run concurrently and the U.T.P period be set off under Sec. 428 of the Cr.P.C. However, the learned Sessions Judge, Sundergarh acquitted the above mentioned four appellants along with one Atul Pandey of the charges under Sec. 395, IPC and Ss. 25/27 of the Arms Act. Further, the learned Sessions Judge acquitted the other accused persons, namely, Pradeep Srivastava, Rajendra Prasad and Santosh Jha of all the charges. Against such acquittal of Pradeep Srivastava, Rajendra Prasad and Santosh Jha, Criminal Revision No. 1426 of 2007 has been filed by Rajesh Gadodia, who is the informant. While hearing Criminal Revision No. 1426 of 2007, analogously it was brought to our notice that in the meantime Rajendra Prasad has died. Though Atul Pandey has filed CRLA No. 523 of 2007, however, the same has been segregated as he is presently absconding.

(2.) The case of the prosecution is that on 24.1.2004 at about 3.30 P.M., Sawarmal Gadodia (P.W.8), an industrialist of Rajgangpur left his residence for Sundergarh in his Maruti Zen Car bearing registration No. OR -16 -A -5921 driven by his driver Fransis Minz (P.W.7). P.W.8 also took one Amin, namely, Biranchi Bag of Rajgangpur Tahasil with him. P.W.8 first went to his factory at Budhakata. After that P.W.8 visited his factory at Bai -Bai. At Bai -Bai P.W.8 left Biranchi Bag for demarcation of a land. Thereafter, he proceeded to Sundagarh. As P.W.8 did not return home by 10 P.M., the informant (P.W.1), who is the son of P.W.8, sent his staff, namely, Deepak Sharma and Prabin Patra to Sundergarh. On the way near Karamdihi, Deepak Sharma and Prabin Patra found the Maruti Zen Car of P.W.8 by the road side. They also informed P.W.1 (informant) that unknown culprits had followed the Maruti Zen Car in a Bolero vehicle and stopped the said Zen Car on the point of pistol and took P.Ws.7 and 8 in their Bolero vehicle. As P.W.8 is an Industrialist, his son (P.W.1) suspected that the unknown culprits have abducted P.W.8 with a motive to demand money. Accordingly, P.W.1 lodged F.I.R. (Ext. 1) at 11 P.M. before the IIC, Sadar Police Station, Sundergarh on 24.1.2004. Basing on this, the case was registered and investigation commenced. During course of investigation, witnesses were examined, spot was visited, a number of persons including present appellants and three opposite parties of Criminal Revision No. 1426 of 2007 were arrested, some weapon of offences were recovered and the victims - P.Ws.7 and 8 were rescued from the farm house of the appellant -Virendra Jaiswal situated at Hartoli in the State of Chhattisgarh. Three appellants, namely, Roshan Ali, Rajan Mishra and Shamim Sidique along with one Atul Pandey were put to Test Identification Parade. Voices of appellants -Rosan Ali and Rajan Mishra were recorded by the Magistrate for comparison. The Bolero vehicle in which the victims (P.Ws.7 & 8) were abducted and the Maruti Zen Car in which P.Ws.7 and 8 proceeded to Sundergarh were seized. Sanction order of the Additional District Magistrate for prosecution under the Arms Act was obtained and after completion of investigation, charge sheet was submitted against the accused persons which included four appellants and three private opposite parties arrayed as such in Criminal Revision No. 1426 of 2007. Later the matter was duly committed to the Court of Sessions and the appellants and three private opposite parties arrayed in the Criminal Revision No. 1426 of 2007 along with others stood their trial under Ss. 364A/34, IPC, 342/34, IPC, 395, IPC, 120B, IPC and Ss. 25/27 of the Arms Act.

(3.) The plea of the convicted appellants as well as the three persons arrayed as opposite parties to Criminal Revision No. 1426 of 2007 was one of complete denial. In order to establish the charges against the convicted appellants and others which included three persons arrayed as opposite parties in the Criminal Revision, the prosecution examined as many as 33 witnesses. So far as the prosecution witnesses are concerned, P.W.1 is the informant, who happens to be the son of P.W.8 (victim), P.W.2 is an eye -witness to the abduction, P.W.3 is the S.I. of Police then attached to Sundergarh Town Police Station to whom P.W.2 is said to have informed about the incident over mobile phone. P.Ws.4 and 5 are the villagers of Karamdihi of whom P.W.4 is a witness to the seizure of Maruti Zen Car and its documents. P.W.6 is the Peon of the victim P.W.8, who is a witness to the seizure of fax message and cassettes vide seizure list Ext. 5. P.Ws.7 and 8 are the victims, who were abducted. P.Ws.9 & 10 are two Gram Rakhis, who are witnesses to the seizure. P.W.11 is the Accountant of Hotel Bishnu Palace, Jharsuguda where some culprits stayed and is a witness to the seizure of the documents of the said Hotel. P.W.12 is a witness, who turned hostile. P.W.13 is the S.I. of Police attached to Sadar Police Station, Sundergarh who proceeded to Nagpur to bring the appellants -Roshan Ali, Rajan Mishra and Pradeep Srivastav (opposite party No. 4 in Criminal Revision No. 1426 of 2007) and certain documents. P.W.14 is the Police Constable of Sadar Police Station, Sundergarh, who is a witness to the seizure of mobile phone of the appellant -Shamim Sidique as well as a witness to the voice recording and seizure of Cassettes. P.W.15 is another Police Constable of Sadar Police Station, Sundagarh, who is a witness to the seizure of mobile phone of the appellant -Shamim Sidique along with other seizures. P.W.16 is Kedarnath Kedia, who was earlier abducted by some of the culprits. He has stated about receiving repeated phone calls over his mobile from the appellant -Rosan Ali. He is also a witness to the seizure of his mobile phone. P.W.17 is the A.S.I. of Police of Shankargarh Police Station in the State of Chhattisgarh, who rescued P.Ws.7 & 8 from the farm house of the appellant -Virendra Jaiswal, also arrested the appellant -Virendra Jaiswal and lodged plain paper F.I.R. (Ext. 36) and did some investigation. P.W.18 is a co -villager of the appellant -Virendra Jaiswal, who is a witness to the Panchnama for the raid and seizure of the fire arms and other materials. P.W.19 is the Attendant of the S.T.D. Booth of Munjer Chowk from where the appellants -Roshan Ali and Rajan Mishra were arrested. He is also a witness to the seizure of the telephone bills as well as telephone set of the S.T.D. Booth. P.W.20 is the Receptionist of Hotel Kamal at Sitawardi in the State of Maharashtra and is a witness to the seizure of the documents relating to the said Hotel. P.W.21 is the Police Constable of Sitawardi Police Station, who is a witness to the seizure of the S.T.D. Booth Telephone of Munjer Chowk and documents of Hotel Kamal. P.W.22 is the A.S.I. of Police of Sitawardi Police Station, who apprehended the appellants -Rajan Mishra & Roshan Ali from the S.T.D. Booth at Munjer Chowk. He is also a witness to the seizure of the telephone bills. P.W.23 is the Station Officer of Civil Line Police Station. P.W.24 is a water pipe fitter, who used to fit pipes in police station. While he was in police station, P.W.23 came there with Bolero vehicle. P.W.25 is a witness to the arrest of the appellants Rajan Mishra and Rosan Ali. P.W.26 is the S.I. of Police attached to the Sadar Police Station, Sundergarh, who proceeded to Ambikapur to submit the remand report in respect of the appellant -Virendra Jaiswal and absconding accused -Abdul Kayum. He also arrested Atul Pandey in course of investigation. P.W.27 is the S.I. of Sadar Police Station, Sundergarh, who had accompanied P.W.26. P.W.28 is the Medical Officer, who examined P.Ws.7 & 8 and the appellant -Virendra Jaiswal and submitted his reports. P.W.29 is the then S.D.J.M., Sundergarh, who conducted T.I. Parades inside the Sundergarh Jail on different dates in respect of the appellants -Rajan Mishra, Roshan Ali, Shamim Sidique and Atul Pandey and also recorded the voices of the appellants -Rajan Mishra and Rosan Ali. P.W.30 is the Divisional Engineer, BSNL, who submitted the phone/call chart. P.W.31 is the S.I. of Police of Crime Cell, Sitawardi Police Station, who is a witness to the arrest of the appellants - Rajan Mishra & Rosan Ali and Pradeep Srivastava (opposite party No. 4 in Criminal Revision No. 1426 of 2007). P.W.32 is the Station Officer of Sitawardi Police Station, who is a witness to the seizure of certain documents. P.W.33 is the main Investigating Officer, who submitted the charge sheet against the 9 culprits. One such culprit Abdul Qayum is absconding and has not stood the trial. The prosecution exhibited several documents covered by Exts. 1 to 71. After closure of the prosecution of evidence, all the four appellants in the present appeal were examined under Sec. 313, Cr.P.C. These four appellants answered most of the questions in negatives and with regard to the Test Identification Parade, they took the plea that identifying witnesses had seen them earlier and also seen their photographs earlier. On behalf of defence, the appellant, Roshan Ali examined one defence witness, namely, Khalid Parbeen taking a plea of alibi. On behalf of other three appellants, no defence witnesses were examined.