Allowed

Govind Goswami Alias Govind Gosai Alias Govind v. State of Jharkhand

Jharkhand HC25 Mar 2022Cr.Rev./593/2003

Case brief

AI extract

What is this about?

In a criminal revision application challenging a conviction for kidnapping, the High Court affirmed the conviction but modified the sentence. Relying on consistent witness testimony regarding force used on the minor, the Court distinguished a prior Supreme Court acquittal. The sentence was reduced to time already served, with a fine imposed.

What did the court decide?

The conviction was affirmed but the sentence was modified to the period already undergone in custody, with a fine of Rs. 25,000 imposed.

Govind Goswami Alias Govind Gosai Alias… — Pension and Retirement Benefits | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Revision No. 593 of 2003

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Govind Goswami @ Govind Gosai @ Govind son of Medhu Gosai, resident of quarter- Mrulidih 20, P.O.+ P.S. Mahuda, District-Dhanbad

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… … Petitioner

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The State of Jharkhand … … Opp. Party

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Atanu Banerjee, Advocate For the Opp. Party : Mrs. Vandana Bharti, A.P.P.

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--Through Video Conferencing

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9 /25.03.2022 Heard Mr. Atanu Banerjee, learned counsel appearing on behalf of the petitioner.

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2. Heard Mrs. Vandana Bharti, learned counsel appearing on behalf of the Opposite Party-State.

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3. The present criminal revision application is directed against the Judgment dated 18.02.2003 passed by the learned Addl. Distt. & Sessions Judge-VIII, Dhanbad in Criminal Appeal No. 172/1998 whereby and whereunder the learned appellate court upheld the Judgment of conviction and the order of sentence dated 30.10.1998 passed by the learned Judicial Magistrate, 1st Class, Dhanbad in G.R. No. 843/1983, T.R. No. 939/1998, arising out of Baghmara (Mahuda) P.S. Case No. 323/1983 dated 07.09.1983 and dismissed the criminal appeal. The learned trial court has convicted the petitioner under Section 363 of the Indian Penal Code and had sentenced him to undergo Rigorous Imprisonment for one year.

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Arguments on behalf of the petitioner

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4. The learned counsel appearing for the petitioner advanced his arguments on 08.12.2021 and 18.02.2022. He had submitted on 08.12.2021 that the present case is a very old case and the incident is of 04.09.1983 i.e. about 38 years ago and the present age of the petitioner is about 60 years. He further submitted that the petitioner has been convicted for the offence under Section 363 of the Indian Penal Code and as per the prosecution case, as well as the statement of the victimP.W.-2, though the victim was a child of around 10 years, but he himself had gone to the market and then, to the railway station where the petitioner alongwith the co-accused had forced him to board the train

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alongwith them. He submitted that as the victim had himself gone to the railway station, the basic ingredients for the offence under Section 363 of the Indian Penal Code are not satisfied.

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5. On 18.02.2021 , the learned counsel for the petitioner referred to a judgment passed by the Hon’ble Supreme Court reported in AIR 1965 SC 942 (S. Varadarajan vs. State of Madras) and submitted that the Hon’ble Supreme Court has elaborately explained the term taking out of lawful guardianship and has held that the proximate cause is required to be seen. He submitted that in the present case, the victim had voluntarily moved out of his house with his friend and thereafter, he had gone to the railway station from where he was allegedly kidnapped by the petitioner and the co-accused. He submitted that considering this aspect of the matter, the impugned judgments are perverse and are fit to be set aside.

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6. Without prejudice to the aforesaid submissions, the learned counsel also submitted that the occurrence had taken place as back as in the year 1983 and about 38 years have elapsed from the date of occurrence. The charge was framed on 06.12.1997 and the petitioner was convicted by the learned trial court in the year 1998 and thereafter, the appeal was dismissed. During the trial, the petitioner had remained in custody from 08.09.1983 to 11.10.1983 and from 18.04.1988 to 25.04.1988 and at the stage of revision, he had surrendered before the learned court below on 11.06.2003 and he was granted bail by an order of this Court dated 17.07.2003 and a few days must have been taken in furnishing the bail bonds. Thus, the petitioner has remained in custody for about 03 months. He submitted that considering the long period of the criminal case which the petitioner has faced, the sentence may be modified and limited to the period already undergone by the petitioner in custody.

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Arguments on behalf of the Opposite Party-State

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7. In response, the learned A.P.P. appearing for the Opposite PartyState opposed the prayer and submitted that there are concurrent findings recorded by the learned courts below and there is no scope for reappreciation of the evidences on record and coming to a different finding. She also submitted that the victim of the case has also been examined before the learned trial court and the victim has clearly stated, even during his cross examination, that the petitioner alongwith the co-

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accused had forced him to board the train and had taken him away and later on, somehow, he escaped from their custody and ultimately, he came to his mother. She submitted that so far as the sentence is concerned, it is for this Court to take a call and in case, if this Court is inclined to modify the sentence, then some heavy fine amount may be imposed upon the petitioner.

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Findings of this Court

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8. The prosecution case based on the fardbeyan of the informant namely, Sukwanti Devi (P.W.-1) recorded on 06.09.1983 at about 11.:45 P.M. alleging inter-alia that on last Sunday, she had gone to the tailor and when she returned back at about 11:30 A.M., she did not find her 10 years old son in her house and upon enquiry from her daughter she was informed that her son had gone with Arjun Turi. Thereafter, when the informant went to enquire from Arjun Turi regarding whereabouts of her son, he said that Govind Goswami and Ishwar Goswami have taken her son from Mahuda Station on a train for going to Chandrapura. He further said that her son was not willing to go, but they have taken him on the train. The Informant further stated that her son did not return. On the date of lodging the FIR , she saw Govind wandering in the Mohalla in the evening and when she enquired regarding her son, he gave different version and said that Ishwar Goswami, who is the brother-in-law (bahnoi) of Govind had taken him, but his whereabouts was not known.

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9. On the basis of fardbeyan, the case was registered as Baghmara (Mahuda) P.S. Case No. 323/1983 dated 07.09.1983 and after completion of investigation, charge-sheet was submitted under Section 363 of the Indian Penal Code against the petitioner and Ishwar Goswami. The co-accused Ishwar Goswami absconded and vide order dated 16.03.1989, he was declared absconder by the learned court below and his trial was separated. On 06.12.1997, the charge under Section 363 of the Indian Penal Code was framed against the petitioner which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.

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10. In course of trial, the prosecution examined altogether 03 witnessed to prove its case. P.W.-1 is Sukmanti Devi who is the mother of the victim boy and the Informant of the case, P.W.-2 is Binoy Kumar

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who is the victim boy himself and P.W.-3 is Arjun Turi who is a friend of the victim boy.

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11. P.W.-1, the Informant deposed that she came to know from Arjun Turi that her son namely, Binoy Kumar had gone towards Mahuda and the petitioner had kidnapped him from Mahuda Railway Station. Inspite of waiting, her son had not returned. She further stated that her son narrated her that the petitioner had kept him with Ishwar Goswami. In her cross-examination, she stated that she had found her son at Bhuli ground at that time when she alongwith the Officer-in-charge was searching for him. Her son had stated that he was coming from the house of Ishwar Goswami and the petitioner had kept him with Ishwar Goswami. She further stated that her son was hardly 10-11 years at that time.

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12. P.W.-2, the victim boy, deposed that the incident is of 13-14 years ago and it was Sunday. He had gone to Mahuda Bazar alongwith his friend Arjun Turi and when he was returning back and came to station, the petitioner and Ishwar Goswami met him and forcibly asked him to accompany them and drove away his friend Arjun Turi. Thereafter, they boarded him on the train going to Chandrapura and took him to Chandrapura. They kept him wandering near Gomoh and then on the pretext of natural call, he fled away and reached Bhuli quarter where he met his mother and the Investigating Officer who were enquiring from the petitioner. In his cross-examination, he said that the petitioner had left him with Ishwar Goswami and had returned back. He further stated that the accused had taken him to Chandrapura, but he had not misbehaved with him and had given food to him.

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13. P.W.-3, in his examination-in-chief, deposed the facts of the case as stated by P.W.-2 and in the F.I.R. and in his cross-examination, he stated that he and the victim had reached station at 12.10 P.M. where they met the petitioner and Ishwar who asked the victim to go to Chandrapura, to which the victim had objected. He further deposed that and after half an hour, when the train had come, they boarded the train alongwith the victim using force upon the victim. Thereafter, when the mother of the victim had come to his house at 4-5 P.M., he had stated the occurrence to her.

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14. After closure of the prosecution evidence, the petitioner was examined under Section 313 of the Cr.P.C. wherein he denied the

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incriminating evidences put to him and claimed to have been falsely implicated. The petitioner did not adduce any oral or documentary evidence in his defence.

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15. The learned trial court considered the materials on record and recorded its findings in Para-10 that kidnapping is an offence irrespective of any intent with which it is committed and as there is no contradiction on the material point of the occurrence in the prosecution evidence and no controversy in the age of the victim boy, non-examination of the Investigating Officer and the Medical Officer did not cause prejudice in any way to the defence and the prosecution has successfully been able to prove the charge beyond the shadow of any reasonable doubt and with the help of consistent evidence that the accused persons had taken away Binoy Kumar, a minor boy who was under sixteen years of age, out of his lawful guardianship without the consent of his guardian. The learned trial court convicted the petitioner under Section 363 of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for one year

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16. The learned appellate court also considered the materials on record and recorded its findings in Para-6 that there is no doubt that there are certain discrepancies so far the time of the occurrence is concerned and all the witnesses have stated the time differently, but here was to be seen that the occurrence took place in the year 1983 and the evidence was recorded in the year 1998 and so, certain discrepancy in evidence may occur, but the discrepancy which was pointed out was not so vital to disbelieve the entire story of prosecution. The learned appellate court further recorded that during cross-examination of the prosecution witnesses, the defence has not been able to bring on record any such evidence which may discredit the evidence of P.Ws. - 1, 2 and 3 and the defence has not been able to disprove the testimony and credibility of any of the prosecution witnesses and has also not been able to show any reason as to why the evidence of P.Ws. - 1, 2 and 3 be not considered, so far it relates to the fact of the offence. The learned appellate court upheld the judgment passed by the learned trial court and dismissed the appeal. 17. After hearing the learned counsel for the parties and going through the impugned judgments and the lower court records of the case, this Court finds that the victim boy himself has been examined as P.W.-2 who has stated that when he was at Mahuda Railway Station alongwith his friend namely, Arjun Turi (P.W.-3), the petitioner and Ishwar

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Goswami met them and they drove away Arjun Turi and forcibly boarded P.W-2 on the train to Chandrapura and took him to Chandrapura. On the pretext of natural call, he fled away and reached his house. P.W.-3 is an independent eye witness to the occurrence of kidnapping the victim boy by the petitioner and the co-accused Ishwar Goswami and he has corroborated the facts of the case in toto as stated by the victim in his evidence and in the F.I.R. and there is nothing in his evidence to disbelieve his testimony. P.W.-1 is the mother of the victim boy and she has fully supported the facts of the case as stated in the F.I.R. This Court finds that all the three prosecution witnesses have testified the occurrence in their natural ways and there is no inconsistency on any material point of the case and even the victim boy who was recovered after lodging of the case has fully supported the prosecution case.

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18. The learned counsel for the petitioner has relied upon the judgment passed by the Hon’ble Supreme Court in the case of S. Varadarajan –vs- State of Madras AIR 1965 SC 942 . In the said case, the minor victim girl had herself left the house of her uncle where she was kept by her father and she had joined the company of the accused in his car and both had proceeded to the registrar’s office and thereafter, both entered into an agreement for marriage which was got registered. Thereafter, both went to different places and stayed together for some period and were found by the police. The Hon’ble Supreme Court recorded that there was not a word in the deposition of the victim girl from which an inference could be drawn that she left the house of her uncle at the instance or even a suggestion of the accused and in fact, the victim girl candidly admitted that on the morning of October 1^st , she herself telephoned to the accused to meet her in his car at a certain place, went upto that place and finding him waiting in the car, she got into that car of her own accord. On these facts, the Hon’ble Supreme Court acquitted the accused from the offence under Section 363 of the Indian Penal Code.

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19. This Court is of the view that the judgment passed in the case of S. Varadarajan (supra) does not help the petitioner and does not apply under the facts and circumstances of the present case considering the materials on record. In order to bring the present case within the ratio of the aforesaid judgement passed by the Hon’ble Supreme Court , the

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learned counsel for the petitioner has submitted that the victim had suomoto boarded the train along with the accused persons and so the basic ingredients of the offence is not satisfied. This Court finds that in the present case, the victim boy was admittedly under sixteen years of age at the time of occurrence and the prosecution evidence is consistent on the point of his kidnapping against his will ( as deposed by the victim-P.W-2 and independent witness-P.W-3) and without the consent of his mother ( P.W-1) by the petitioner alongwith the co-accused Ishwar Goswami from Mahuda Railway Station by forcibly boarding the victim (P.W-2) on a train away from the lawful guardianship of his mother and taking him to Chandrapura. Accordingly, the essential ingredients to constitute the offence under Section 361 of the Indian Penal Code punishable under Section 363 of the Indian Penal Code are fully satisfied against the petitioner.

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20. This Court further finds that both the learned courts below have recorded concurrent findings after properly considering the evidences on record and have passed well-reasoned judgments. This Court finds no scope for re-appreciation of evidences for interference in revisional jurisdiction and coming to a different finding. This Court finds no perversity or material illegality in the impugned judgments and accordingly, the conviction of the petitioner under Section 363 of the Indian Penal Code is affirmed.

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21. So far as sentence is concerned, Considering the entire facts and circumstances of the case and also the fact that the occurrence is of 04.09.1983 i.e. about 38 years ago; the petitioner has already remained in judicial custody for a total period of about 03 months; there is no material on record regarding his previous conviction; his present age is about 58 years ( age has been recorded as 35 years in the trial court’s judgment dated 30.10.1998); he has faced the rigour of the criminal case for a long period and no minimum sentence has been prescribed under Section 363 of the Indian Penal Code, this Court is of the view that the ends of justice would be served, if the sentence of the petitioner is modified to some extent.

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22. Accordingly, the sentence of the petitioner is modified and reduced to the period already undergone by him in judicial custody with fine of Rs.25,000/- to be deposited by the petitioner within a period of

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three months from the date of communication of a copy of this order to the learned court below.

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23. The fine amount, so deposited, shall be remitted to the victim of the case after due identification. In case, the fine amount is not deposited within the stipulated time frame, the petitioner would serve the sentence as imposed by the learned court below.

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24. With the aforesaid findings and modification in the sentence, the present criminal revision application is hereby disposed of.

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25. Pending interlocutory application, if any, is dismissed as not pressed.

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26. Let the Lower Court Records be immediately sent back to the court concerned.

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27. Let a copy of this Judgment be communicated to the learned court below through ‘e-mail/FAX’.

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(Anubha Rawat Choudhary, J.)

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Binit

Govind Goswami Alias Govind Gosai Alias Govind v. State of Jharkhand

Case brief

What is this about?

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Govind Goswami Alias Govind Gosai Alias Govind v. State of Jharkhand

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