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TMI Blog1956 (11) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... Chandra, is a person about 25 years in age, who has received education up to Matriculation standard and was working at the time as a clerk in the Accountant-General's office U. P. He is said to have been a native of Kohat now part of West Pakistan. Appellant, Ram Bharosey, is a person, about 49 years in age and was a clerk in the Municipal Office at Allahabad. Both of them were living in the same street in Allahabad as Chauhan. It is in evidence and not disputed, that the boy, Om Prakash, was in the habit of going to appellant, Ram Chandra's house now and then and mixing with the members of that family, including Ram Chandra. It is also beyond dispute that the boy, Om Prakash, left his house about noon on the 9th June 1952, and is missing since then. In spite of strenuous efforts to trace him he has not so far been found. The prosecution case is that in pursuance of a conspiracy between the two appellants and the acquitted accused, the boy was taken by the two appellants and one Satya Prakash, to the river Jumna on the evening of the 9th June 1952, and that the two appellants took him into the river pretending to teach him swimming and drowned him there forcibly and also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Section 120-B or in the alternative with Section 34 of the Indian Penal Code. They were sentenced as follows, to death under Section 302, I.P.C., to transportation for life under Section 364, I. P. C , to ten years' R. I. under Section 368, I. P. C , and to seven years' R. I. under Section 201, I. P. C. No separate sentence was awarded in respect of the offences under Section 120-B. These convictions and sentences were confirmed and upheld by the High Court on appeal, and hence this appeal by both the appellant. 2. For a proper appreciation of the case, it is necessary to set out briefly the contents of the various letters admittedly received by Chauhan by post and purporting to be from Zalim Daku. Altogether seven letters were received, Exs p 2 to p-8. The first of these letters purports to have been sent by post on June 10, 1952, and is as follows: Lala Kishan Das Ji, Your son Om Prakash reached me through the cleverness of my disciples, and by the time this letter reaches you, he will be several hundred miles away from here. For this reason if you want to see your son safe and sound, you should send a sum of ₹ 10,000 to any place, where we may ask you ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay the matter for more than a week at the most and that in case his terms are not acceptable he will not hesitate to put an end to the life of the boy and that he should paste a paper on the outside of his door containing the mark of two lines and that all this must be done by the evening of the 24th. The fourth letter dated the 23rd purports to offer a concession and undertakes to accept ₹ 7,000 as the ransom instead of the original demand of ₹ 10,000 and asks that the mark on the wall should be placed by the 24th and promises thereafter to send a letter on the 25th indicating the place, time and date where. the money is to be kept for the writer to get it. It is in evidence that after the receipt of these letters a poster was pasted at the instance of Chauhan on the 25-26th June in front of his gate compound wall with the words I can pay ₹ 3,000 up to 1st July and along with it the mark indicated in the previous letters was put. Thereupon another letter dated the 28th June was received which intimated that the mark put by him has been seen, but that nothing less than ₹ 5,000 would be received and giving detailed instructions as to where the money should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the early morning of the 6th July. On a search of appellant Ram Chandra's house, a sum of ₹ 115 was recovered out of which eleven ten rupee notes tallied with the noted number On the 7th July the police officer interrogated both the appellant Following that interrogation, Ram Chandra with the police proceeded to his house. He went into a room therein and dug the ground and brought out two bundles containing currency notes of ten rupee denomination. The notes totalled a sum of ₹ 4,650 and the numbers thereof tallied with the noted number It may be mentioned that on the 7th July Chauhan received another letter purporting to be from Zalim Daku bearing date 5th July. This letter informs about the receipt of the ransom and intimates Chauhan that he need not be anxious about the boy, that he should not search for him in vain and that he can shortly meet his son and be satisfied. The appellants were arrested before receipt of this letter. 3. As already stated previously, the various letters with the addresses on the envelopes relating thereto purporting to have been written from Zalim Daku have been found by the hand writing expert to be the writing of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quest of an opportunity. On Sunday the 8th June 1952, Om Prakash, Satya Prakash and I started from the house. Ram Bharosey had left for the direction of the temple of Someshwar Mahadeo, before us After that all the three of us went to Ram Bharosey near the temple after passing over the Yamuna Bridge, behind a rail and along the canal. After that all the four of us went to the bank of the Yamuna on the pretext of bathing Our purpose was to kill Om Prakash, but we did not get an opportunity there. For this reason after bathing in the river we went for some distance ahead along the bank of the river down the stream. Some men were present there also. We returned afterwards as we did not get an opportunity on that day. Ram Bharosey again reached home before us We reached home afterwards on foot. Ram Bharo sey came on a bicycle Om Prakash was scolded by his mother for his coming late to his house. He then came to my house and took me with him. I told his mother that he had gone out with me. On the same night Ram Bharosey and I prepared a scheme for the next day, that is, for the 9th of June, that Om Prakash should be taken to the bank of the Yamuna, further ahead of Dariyabad, and should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, on the 10th of June the scheme of writing the letters for extorting money was prepared. I wrote the letter after coming to office. I dropped it in the letter box after showing it to Ram Bharosey. Many such letters were sent in the same way. On the day on which the money was kept on the bridge in front of the Agriculture College (?) picked up the money and put a letter in the bag which I had written before. Thereafter all of us, i.e., K. D. Chauhan Diwan Chand, Durga Das, Ram Bharosey and I myself returned from there and reached the house. Shri K. D. Chauhan, Ram Bharosey and I stood up from there and went to our houses After the money was taken out it was put into the box of Ram Bharosey. On the following day, i.e., on the 5th of July, that is, the day on which the boy was to be received, Ram Bharosey and I went to the railway station. K. D. Chauhan and Durga Das also reached the station When in spite of waiting for the boy till night he could not be found, Ram Bharosey and I went home at about 10 O'clock on the pretext of taking our food. Ram Bharosey had some suspicion at the railway station on account of some talks between K. D. Chauhan and Durga Das to the effect that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his examination under S 364, Criminal P. C. , says as follows : This much I know that Ram Chandra had given a statement before the City Magistrate on 16th July or 17th July. He was summoned to the Court on the 22nd July After that he was sent to the solitary cell in August . These statements seem to confirm the observation of the trial Judge that Ram Chandra . was brought up before the Magistrate again on the 22nd and was not prepared to confess even then. However this may be, there is clear indication of the state of his mind as regards his willingness to make a clean breast of his alleged guilt as late as on the 30th August 1952. The prosecution has given evidence that on that date he had written a letter to some one of his people to be surreptitiously smuggled out of the jail, and that this letter was seized from his possession by the Assistant Jailor. That letter has been exhibited. Therein he gives instructions that there need be no worry about him, that they cannot cause him any harm in the case, that arrangements should be made quickly to obtain for him an order for bail and that the other suspects in the case such as Balakrishna, etc. should be told not to make an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against him. The Magistrate has appended the usual certificate that she was satisfied that the accused made the confession voluntarily. Quite clearly the Magistrate is an inexperienced officer. The High Court itself recognised this and says as follows : It is unfortunate that the Magistrate did not make a satisfactory enquiry into voluntary nature of the confession. She did not ask him why he was making the confession, which is the most important question to be put to a person who wants to confess ...... She did not care to find out for how long he had teen in jail and police custody, what was the treatment meted out when he was in police custody and whom he had interviewed in jail. The recording of a confession is an important matter and ought to be entrusted to an experienced Magistrate. In a serious case, such as the present one, every precaution ought to have been taken by the District Magistrate to see that the confession was taken down in a proper manner in accordance with law and he should not have entrusted the task to an inexperienced Magistrate like Shrimati Madhuri Shrivastava. Neither of the Courts below seem to have noticed the impropriety in this case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed in the portion side-marked 'A' of the confession* set out above. It is not a case where the accused merely states that he and his con-federate forcibly drowned the boy in the river under the pretext of teaching him swimming. He gives a version of how actually it was done which we consider highly improbable. What purports to have been done to the boy before his body was taken out of the water and struck with knife, etc. is difficult to imagine and follow rationally. We have attempted to understand it with the help of the Advocates on both side But none of them have been able to give us a rational view of the thing having been done in the way it purports to have been. It appears to us that this portion of the confession which is crucial as regards the offence of murder, is an indication that the person was saying something out of his imagination rather than from his recollection of what actually he did and saw. Besides, it appears to us unlikely that persons who caused the disappearance of the murder in the way suggested one evening would have ventured to start the campaign of extortion by threatening letters on the very next day and without waiting for a few days to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to deal with the case of each of the appellant separately. 8. 80 far as the appellant Ram Chandra is concerned the circumstantial evidence against him in respect of both the offences is clear. On the finding that the various ransom letters are in his handwriting and on the finding that a very large number of the noted currency notes which formed the ransom money was traced to his possession, there can be no doubt as to his conviction under S. 386, Penal Code. It may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction. But in this case the authorship of the letters has been held by the courts below to be that of appellant Bam Chandra, on various items of external and internal evidence already noticed above, in addition to the opinion of the expert. As regards the charge against him under Section 364, Penal Coda, for kidnapping, though there is no direct evidence, the various ransom letters categorically state that the missing boy is in the custody or control of the writer thereof. It is asserted therein that on payment of the ransom money, the boy will be restored at a particular time and place. We find it hard to beli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hstanding that we have acquitted the appellants of the offence of murder, this appellant can still be held to be guilty of the aggravated forms of kidnapping and extortion under these two and we are also satisfied about it. The modus operandi disclosed in the ransom letters was clearly by patting his father in fright of the boy being murdered. There was throughout the likelihood of the boy being murdered in case the ransom money was not paid for one reason or other. 10. Next as regards the case of the appellant Ram Bharosey both the Courts have for good reasons, found that he along with the appellant Ram Chandra, is guilty of criminal conspiracy to commit the offences charged. This would equally support the case against him under S 34, Penal Code In our opinion, there is no reason to reverse that finding. It is true that in the judgments of both the courts below the confession of the appellant Ram Chandra is relied on against Ram Bharosey for holding him guilty of the offences charged against him. It is rightly urged that under Section 30, Evidence Act confession of a co accused can only be taken into consideration but is not in itself substantive evidence. But we are satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een Strenuously urged that so far as the sentence is concerned, if not in respect of conviction, a distinction should be made between Ram Chandra and Ram Bharosey. But in a case like this where the two accused acted in concert by virtue of a common intention and of a criminal conspiracy, their entire activities cannot, in the very nature of things, be brought out in evidence. Obviously such daring offences would necessarily have called for active planning and co-operation of both these appellants together and probably of others We are, therefore, not able to make any distinction between them even as regards the sentence. We accordingly maintain the convictions and sentences against both the appellants under Sections 364 and 386, Penal Code taken with Sections 120B-B and 34, Penal Code. 12. In the result the convictions of both the appellants under Sections 302/34 and 201/34, Penal Code and the sentence of death, and rigorous imprisonment for seven years there for, are hereby set aside and the appellants are acquitted of these charges Their convictions and sentences in respect of the other charges are confirmed. Subject to this modification both the appeals are dismissed. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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