BHAIYA SHYAM Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THE appeal on hand has been preferred by accused appellant Bhaiya Shyam against the judgment of conviction dated 05 -07 -2008 and the order of sentence dated 10.07.2008 passed by 2nd Additional Sessions Judge, Dhanbad in Sessions Trial No. 50 of 1997, whereby and where -under he has been found guilty u/s. 364A/411/120B of the IPC. and sentenced to undergo rigorous imprisonment for life and a fine of Rs. 2000/ - only, in default to pay fine, simple imprisonment for one month for the offence u/s. 364A, IPC. He has been further sentenced to undergo rigorous imprisonment for three years for the offence u/s. 411 of the Indian Penal Code. Both the substantive sentences, however, have been ordered to run concurrently. Prosecution story, as one finds from the Fardbeyan (initial statement) of one Pramod Kumar Jain, (elder brother of the victim) is that on 25.05.1996 Raj Kumar Jain (for short 'victim'), who had gone to his "Saurab Hard Coke" Bhatta at 10 a.m. in his Maruti Van No. BR 17 -C 7050, did not return home till 2 p.m., while he normally used to leave the Bhatta at 1 p.m. for his home to take lunch, whereupon he and his family members became anxious for him. They started waiting for his arrival apprehensively. Meanwhile, at 6.30 p.m. somebody made a telephone call to his residential phone and made demand of money in lieu of the release of victim making aware about his abduction with his Maruti Van. Threatening was also extended on phone call to the effect, if any act of cleverness is shown by them, they will do away with his life.

(2.) ON aforesaid allegations, Barwadda P.S. Case No. 95 of 1996 was registered under Section u/ss. 364A, 379 and 34, I.P.C. against unknown accused persons and investigation was undertaken. After completion of investigation thereof I.O. submitted charge -sheet for the offence under Section u/ss. 364A, 379/34, I.P.C. against accused -appellant and seven others showing three of them in absconder column. Charge was framed against accused -appellant along with five others and their trial commenced in S.T. No. 50/97, which resulted in conviction of accused -appellant, who was sentenced in the terms of the impugned judgment passed by 2nd Additional District & Sessions Judge, Dhanbad.

(3.) PER contra, learned A.P.P. Mr. Sanjay Kumar Pandey submitted that delay in conducting TIP as well as non -disclosure of the specific role played by accused in the witness -box by victim is not per se fatal in the facts and circumstances of case in terms of section 9 of the Indian Evidence Act; Section 291A of the Code of Criminal Procedure does not require the Magistrate, who conducted TIP to be examined to prove TIP chart; there be sufficient evidence on record to prove seizure of incriminating articles in the case at hand as such non -examination of seizure list witnesses is not fatal for the case of prosecution; it is not only the evidence of the wife of victim, upon which learned trial Judge has placed reliance rather the order of conviction is based on the right appreciation and full application of judicial mind on the entire evidence in totality, moreover, the evidence of the wife of victim cannot be brushed aside on hypothetical ground because her statement in vernacular that "Mujhe yaad nahi ki maine police ko bataya ki phone karane wala apana naam Bhaiya Shyam bataya tha" does not defy her version about the disclosure of the name of caller as Bhaiya Shyam disclosed by none else but caller himself; and finally, the accused -appellant can never seek his entitlement of acquittal only because the other five accused persons have been acquitted in same trial as such the appeal is devoid of any merit and deserves to be dismissed.