Gauri Mahto @ Gauri Kumar vs The State Of Bihar

GAURI MAHTO @ GAURI KUMAR .... APPELLANT VERSUS THE STATE OF BIHAR .... RESPONDENT

J U D G M E N T

J.K. Maheshwari, J.

1. Challenging the judgment of conviction and sentence

dated 22.07.2015, for the offence under Section 364A of

Indian Penal Code, 1860 (in short “IPC”) passed by the

High Court of Judicature at Patna in Criminal Appeal (DB)

No. 1051 of 2009 confirming the judgment dated 27.10.2009

passed by the 1st Additional Sessions Judge, Barh, in

Sessions Trial No. 1046 of 2004, the present appeal has

been filed by appellant-convict. The appellant has been

sentenced to undergo life imprisonment with fine of Rs.

5000/-, and in case of default, further sentence of three

months.

Signature Not Verified Digitally signed by

2. Gulshan Kumar Arora Date: 2025.07.14 10:48:56 IST The prosecution case in nutshell is that, on Reason:

24.10.2002 at about 8.30 p.m., three unknown accused persons armed with deadly weapons stormed into the house

of Rajendra Kumar (the informant, PW-13) and committed

loot taking away some cash and golden ornaments. In the

said incident, they also tied the informant and his wife

Suma Kumari (PW-15) and kidnapped their elder child

namely Unnat Raj (PW-12), aged eight years with a threat

to kill the boy in case the informant raised any hue and

cry or inform the police. As alleged, the accused persons

also left a ransom note demanding Rs. 6 lacs to be

delivered near Rampur Dumra station by 30.10.2002,

failing which, the boy would be killed.

3. It is further the case of prosecution that while

leaving, the accused persons confined the informant and

his wife in separate rooms bolting the doors from

outside. The informant somehow freed himself and rushed

to the roof, wherefrom he saw the accused persons under

the streetlight fleeing away with the child. On the said

basis, FIR was lodged and during course of investigation,

present appellant along with 6 other accused persons

namely Sudhir Mahto, Diwakar Yadav, Dayanand Mahto,

Pramod Kumar, Dhurba Yadav and Awdhesh Yadav @ Gama Yadav

were charge-sheeted for offences punishable under Sections 364A/395/120(B)/34 of IPC. The trial was

conducted and present appellant along with one Sudhir

Mahto was convicted for offence under Section 364A of

IPC, whereas, acquitted for other offences.

4. During trial, the prosecution examined 15 witnesses

to answer whether the child was illegally taken away from

lawful guardianship or not. The Trial Court largely

relied on the testimony of Rajendra Kumar (PW-13,

informant/father of the child), Suma Kumari (PW-15,

mother of the child) and Unnat Raj (PW-12, kidnapped

child) alongside documentary evidence brought on record

and held that the child was illegally taken away from the

lawful guardianship of the parents. All the three

witnesses were consistent qua the incident of kidnapping

on the date of incident. So far as question as to who

were involved in the alleged occurrence, the Trial Court

primarily considered the testimony of Krishna Chandra

(PW-11, Investigating officer), who deposed that the

ransom demanded from the parents of the child, had to be

handed over to the kidnappers at the nearby temple at

Barahiya railway station by a man clad in white shirt,

full pant and a gamchha who was to travel by Vikramshila train. Thereafter, the trap was set and when three

miscreants came to collect the ransom, one person namely

Pramod Kumar @ Pramod Mahto was nabbed, while the other

two escaped.

5. On interrogation, Pramod Kumar in his confessional

statement disclosed the names of present appellant,

Nandan Mahto, Md. Ajam, Dewakar Yadav, Dhurba Yadav and

Vikas Das being involved in the alleged crime. He further

disclosed that the boy is with Gauri Mahto (present

appellant) and if raid is conducted, the boy may be

recovered. Accordingly, a raid was conducted on the house

of appellant, but the boy was not found there,

whereafter, on further disclosure by Pramod Mahto,

another raid was conducted on second house of appellant

and the boy was found sleeping in a room situated on the

roof of the house. The present appellant and co-accused

Sudhir Mahto @ Sudhir Kumar were also found in the room.

The recovery of the child was made in the presence of

independent witnesses, the informant/father and the

seizure memo of articles (‘Ex. 7’) was prepared. In the

entirety of facts, the Trial Court held that recovery of

kidnapped child was from conscious possession of the appellant from his house in his presence and is

sufficient for conviction under Section 364A of IPC.

Being aggrieved and on filing appeal, the same came to be

dismissed by High Court vide impugned judgment confirming

the findings of the Trial Court.

6. The learned counsel for the appellant strenuously

argued that in the present case, the essential

ingredients of Section 364A are not fulfilled, therefore,

conviction as directed cannot be sustained. For an

offence under Section 364A, the essential ingredient is

of detention of the kidnapped person along with threat to

cause hurt or death or reasonable apprehension that death

or hurt may be caused to such person. Both these

conditions are to be read together and not in isolation.

Additionally, there must be a demand of ransom by such

individual. In the present case, it has not been proved

that any such demand was made by the appellant.

7. The entire case of the prosecution against appellant

is based on the confessional statement of co-accused

namely Pramod Kumar @ Pramod Mahto, which is not a

substantive piece of evidence. Further, neither the

informant Rajendra Kumar (father of the child) who had accompanied the investigation officer in the raid, nor

the kidnapped child Unnat Raj (PW-12) had identified the

appellant and the recovery of the child also appears

doubtful. Therefore, it was prayed that the appeal be

allowed, and conviction be set-aside.

8. Learned counsel for the State supported the findings

of the Courts below and submitted that on raid, the child

was found sleeping in the room on the roof of the house

of appellant. The appellant and co-accused Sudhir Mahto

were also found present there. The recovery of the child

was made from the conscious possession of the appellant

in the wee hours of the day as per information furnished

by co-accused Pramod Mahto, who came to collect the

ransom near the temple at Barahiya railway station, where

he was nabbed by police. After recovery, Ex. 7 (seizure

memo) was prepared, which was signed by the appellant and

two independent witnesses namely, Sanjay Mahto (PW-1) and

Sadanand Kumar (PW-2). This confirms the presence of

appellant on the spot. The child was handed over to the

informant and zimmanama was prepared. The testimony of

the independent witnesses along with Ex. 7 and zimmanama

fully corroborates the testimony of I.O. Krishna Chandra (PW-11) and the confessional statement. It was therefore

urged that no interference is warranted in present

appeal.

9. After having heard the learned counsel for the

parties at length and having perused the material placed

on record, in connection to the case of prosecution, the

first and foremost question that calls for our

consideration is, whether in the facts of the case,

prima-facie offence under Section 364-A of IPC against

appellant is made out or not? To answer the same, Section

364-A need to be perused, which is quoted herein below:

“364-A. Kidnapping for ransom, etc.—

Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter- governmental organization or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.”

On bare reading, it is clear that the afore-mentioned

Section deals with ‘kidnapping for ransom’ a person and

to convict an individual for the said offence, fundamentally three essential ingredients need to be

fulfilled; first, a person is kidnapped or abducted, and

is kept in detention after the kidnapping or abduction;

second, there is a threat to cause death or hurt to the

kidnapped person, or a reasonable apprehension of such

harm is created; third, the act is done to compel the

government or a foreign state or international inter-

governmental organization or any other person to do or

not do something, or to pay a ransom.

10. This Court in its recent judgment in ‘Shaik Ahmed

Vs. State of Telangana, (2021) 9 SCC 59’, re-iterated the

pre-requisites required to be proved by prosecution to

establish culpability for offence under Section 364-A. In

paragraph 33 of the said judgment, the Court noticed as

under –

“33. After noticing the statutory provision of Section 364-A and the law laid down by this Court in the above noted cases, we conclude that the essential ingredients to convict an accused under Section 364-A which are required to be proved by the prosecution are as follows:

(i) Kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction; and

(ii) threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or;

(iii) causes hurt or death to such person in order to compel the Government or any foreign State or any Governmental

organization or any other person to do or abstain from doing any act or to pay a ransom.

Thus, after establishing first condition, one more condition has to be fulfilled since after first condition, word used is “and”. Thus, in addition to first condition either Condition (ii) or (iii) has to be proved, failing which conviction under Section 364-A cannot be sustained.”

From above, it can be inferred, the usage of word

‘and’ after the first condition in Section 364-A,

signifies that the first condition is not independent,

and should not be read in seclusion or isolation with the

other conditions prescribed therein. Therefore, for

conviction under this Section, what is to be ensured is

that first condition, i.e., the act of kidnapping or

abduction or detention after such kidnapping or abduction

shall either be coupled with a threat to cause death or

hurt or with such conduct creating reasonable

apprehension of death or hurt in the mind of person so

kidnapped or abducted; or causes hurt or death in order

to compel the Government or any foreign State or any

Governmental organization or any other person to do or

abstain from doing any act or to pay a ransom.

11. In view of the foregoing discussion, we now proceed

to consider whether the findings of the Trial Court and

the High Court are in consonance with the ingredient

specified under Section 364-A and dictum of this Court in

Shaik Ahmed (supra), in particular, paragraph 33 to

sustain conviction as directed.

12. In the context of the ingredients required to be

proved, if we look into the evidence brought, then it is

apparent that Rajendra Kumar (PW-13) - informant/father

of the child, Suma Kumari (PW-15) - mother of the child

and the kidnapped child, namely, Unnat Raj (PW-12) in

their testimony have not identified the accused. The

conviction is primarily based on the oral evidence of the

Investigating Officer, Krishna Chandra (PW-11). On

examination of material placed, it is found that the main

allegation against the present appellant is based on the

confessional statement of the co-accused Pramod Kumar

Mahto, who is absconding. The said co-accused in his

confessional statement disclosed that the child is in the

house of the present appellant and on conduct of raid,

the child was recovered. However, on perusal of records,

it is seen that no investigation was conducted to determine whether the house from where the child was

recovered belonged to appellant or not. It is undisputed

that, the recovery was made from the second house and not

from the original/first house of the appellant.

Furthermore, seizure memo (Ex. 7) did not contain any

information qua recovery of child. It is also admitted

that in the identification parade conducted by the

police, the appellant has not been identified by the

father (PW-13). The child also has not identified the

appellant in the Court, despite the allegation that the

child was with the appellant for about 15 days.

13. Coming to aspect of demand of ransom, it is found out

from the records that Suma Kumari (PW-15) after 15 days

of incident, on 08.11.2002 informed the police that her

devar, Jitender Kumar, received a phone call from phone

no. 262694 on his mobile no. 9835231064 demanding ransom

of Rs. 4 lakhs to be delivered at railway station

Barahiya, for release of child. Rajendra Kumar (PW-13)

has deposed that he received ransom notes demanding

approximately Rs. 4 to 5 lacs. At this juncture, it is

pertinent to note that the entire case of the prosecution

is based on the testimony of Krishna Chandra (PW-11) - Investigating Officer, however, interestingly as borne

out of records that, neither he has deposed anything

about ransom notes nor about any investigation regarding

phone call made by the kidnappers. The prosecution has

also failed to bring on record any cogent evidence

regarding any ransom demand made by the appellant.

14. Lastly, to sustain the conviction of appellant for

offence under Section 364-A, it is to be seen that

whether any threat to cause death or hurt to the child

was made by appellant or not? As per prosecution’s case,

the kidnapped child was with appellant for a period of 15

days and on raid, he was found sleeping in the room of

the house belonging to the appellant. After considering

the medical report, it is found that, the child had only

simple injury in the nature of abrasion. Furthermore, the

child (PW-12) himself in testimony has not deposed

anything to the effect that appellant had threatened him

to cause death or hurt. Under such circumstances, the

prosecution’s case suffers with infirmities and creates

serious doubt insofar as the involvement of appellant in

the present crime is concerned.

15. In view of the discussion made above, thus, we are of

the considered view that the prosecution has failed to

prove conditions together as envisaged under Section 364-

A, in particular, paragraph 33 of the judgment of this

Court in Shaik Ahmed (supra). Accordingly, this appeal is

allowed. The judgment of sentence and conviction dated

27.10.2009, passed by the 1st Additional Sessions Judge,

Barh, confirmed in appeal by the High Court vide impugned

judgment dated 22.07.2015 are set-aside.

16. The sentence of the appellant has already been

suspended vide this Court’s order dated 11.01.2019. As a

sequel to the acquittal, the appellant need not

surrender. His bail bonds stand discharged.

…………………………………………………,J.

[J.K. MAHESHWARI]

…………………………………………………,J.

[ARAVIND KUMAR] New Delhi;

February 27, 2025.