P.K. Musahari, J.
1. Heard Mr. Dhiraj Guha, learned Counsel appearing on behalf of the accused-appellant. Also heard Mr. R.C. Debnath, learned P.P. incharge for the State respondent.
2. A criminal case set in motion with the lodging of an Ejahar by informant, PW-4, wherein it was stated that while his son Kamal Roy Barman, aged 21 years, along with Nepal Das visited the house of Badal Debbarma at Hariakubra between 8.15 p.m. and 8.30 p.m., two tribal youths came to the room of Badal Debbarma and forcibly kidnaped Kamal Roy Barman. Aforesaid Nepal Das came to the bazaar where Badal Debbarma and Kamal Roy Barman are running a shop and informed the informant's wife that extremists had kidnapped Kamal Roy Barman for ransom. The informant reported the matter orally and the same was recorded by S.I. of Police Benu Lal Kar (P.W. 6) at Takarjala market on 25-8-99 at 10.05 p.m. On the basis of said Ejahar a crime being Takarjala P.S. Case No. 44/99 was registered under Section 448/364A, I.P.C. On being endorsed, S.I. Sri Samlram Chakroborty (P.W. 7), investigated the case.
3. During investigation, I.O. P.W. 7 visited the place of occurrence, prepared hand sketch map of the place of occurrence with separate index, examined available witnesses and recorded their statements under Section 161, Cr.P.C. One accused, namely Sona Charan Debbarma was arrested and forwarded to the Court. No other co-accused could be arrested. The accused Sona Charan Debbarma was taken to police custody and he was thoroughly interrogated by police. During investigation it transpired that accused Sona Charan Debbarma, Uttam Debbarma (present appellant), Badal Debbarma and Samprai Debbarma were among the extremists who kidnapped the informant's son Kamal Roy Barman from the house of Badal Debbarma of Hariakubra. On completion of investigation, the I.O. laid charge sheet against accused Sona Charan Debbarma, Uttar Debbarma, Badal Debbarma and Samprai Debbarma under Section 448/364A, I.P.C. showing the later three accused persons as absconder. The learned C.J.M., West Tripura, Agartala took cognizance of the offence under Section 448/364A of the I.P.C. and thereafter transferred the matter to the Court of learned Judicial Magistrate, First Class, Agartala presided over by Mr. G.C. Kar. The case being exclusively tried by the Court of Session, It was committed to the Court of Session Judge, West Tripura, Agartala, for trial in accordance with law.
4. It may be pertinent to mention here that accused Sona Charan Debbarma who was arrested earlier, was tried and convicted under Section 365 of the I.P.C. The present accused appellant having been arrested subsequently, was tried separately in the case No. 89(WT/A)/2000.
5. The learned trial Court, after hearing the learned Counsel for the parties and on perusal of records, framed charges under Section 448/364A, I.P.C. against the accused appellant and the accused appellant, on being read over the charges, denied the same pleading not guilty and claimed to stand trial.
6. The prosecution examined, in all, 8 (eight) witnesses including the victim Sri. Kamal Roy Barman. The defence, however, did not examine any witness.
7. The learned trial Court after completion of the trial and hearing the parties acquitted him from the charge levelled against him under Sections 448/364A, I.P.C. and instead convicted him under Section 365, I.P.C. and sentenced him to undergo rigorous imprisonment for three years and also to pay a fine of Rs. 5,000/-, in default to undergo further imprisonment for six months by a judgment and order dated 30-3-2002. Being dissatisfied with and aggrieved by the aforesaid order of conviction and sentence the accused appellant has preferred this appeal before this Court.
8. In order to appreciate the facts of the case 1 may advert to the FIR (Exhibit-1) and the evidence of informant PW-4, eye witnesses Sri Badal Debbarma (PW 1), Sri Ranjit Debbarma (PW 2) and Smt. Prabhati Debbarma (PW 3), wife of Badal Debbarma. According to Ejahar the informant's son Sri Kamal Roy Barman has been running business with Badal Debbarma. This was corroborated by the statement of Badal Debbarma (PW 1) in cross examination who stated that he used to work in the Video shop owned by Kamal Roy Barman and the said shop situated at Takarjala market. The house of Kamal Roy Barman (victim) situated at a distance of five minutes walk from Takarjala market. The fact of kidnapping of victim Kamal Roy Barman is not in dispute in so far as the P.W. 1 Badal Debbarma testified that at the time of occurrence which took place in his house, he himself was present along with Ranjit Debbarma (PW-2), Nepal Das, Kamal Roy Barman (PW 5, victim) and Prabhati Debbarma, wife of PW-1. According to PW-1 at around 7.30 p.m. two persons armed with lathies entered into his house and assaulted Kamal Roy Barman and thereafter kidnapped him after tying his hands. While PW 1 raised objection he was also dealt with a lathi blow on his persons. PW 3 Prabhati Debbarma wife of Badal Debbarma corroborated her husband's statement and stated that her husband gave resistance but the miscreants assaulted him. PW 2 Sri Ranjit Debbarma, who was also present in the house of Badal Debbarma, also deposed that two persons came to the house of Badal Debbarma at Hariakubra at around 7.30 p.m. and kidnapped Kamal Roy Barman from his house.
9. The prosecution, however, did not examine the other eye witness, namely Sri Nepal Das who according to Ejahar, informed the informant's wife at Takarjala market about the incident of kidnapping. The informant, admittedly on the basis of information received from Nepal Das informed the police verbally which was taken down by the S.I. Sri Benu Lal Kar (PW 6) which was read over to him and being satisfied signed the same. PW-6 Benu Lal Kar, in his deposition corroborated the same and stated that on the basis of said Ejahar, he registered a case namely Takarjala P.S. Case No. 44/99 under Section 448/364A, I.P.C. and endorsed the said case to S.I. Samiran Chakraborty (P.W. 7).
10. The Ejahar (Exhibit-1) does not mention name of any accused person. Eye-witnesses P.W. 1, 2 and 3 stated in their deposition that they could not identify any of the kidnappers. According to PW-1 there was no electric light in his house. P.W. 4, the informant Ashok Roy Barman stated in his deposition that after the incident he came to Badal's house and came to know from him that extremists had kidnapped his son and assaulted Badal. He further stated that after four days of the incident he received a letter in which a demand of Rs. 4,00,000/-(rupees four lakhs) was made for release of his son. His son returned home after seven days. There is no evidence on record whether the ransom as demanded allegedly was paid by the informant. According to PW-4 he knows accused Sona Ram Debbarma and he identified him in the dock. He also deposed that he knows the accused appellant Uttam Debbarma and he could identify him in the dock. They claimed to have made statement before the Daragababu that accused Uttam was one of the extremists who kidnapped his son Kamal. But such statement was not found in his statement made before the police under Section 161, Cr.P.C. He was cross-examined by the prosecution on this point but he could not give satisfactory reply.
11. PW 5, the victim Kamal Roy Barman stated in his deposition that five extremists kidnapped him and he could identify the accused appellant Uttam Debbarma and Sona Charan Debbarma out of those five kidnappers. The victim, PW-5 could identify the accused appellant Uttam Debbarma in the dock. According to him on the way there was no electric current but it was a moonlight night. According to him in the sitting room of Badal Debbarma, where P.Ws. 1, 2, 3 and Nepal Das were present, a 'Kupi' lamp was burning. Badal Debbarma asked the kidnappers not to take the victim but they assaulted him. He was taken by the kidnappers in deep forest where he reached at about 1 a.m. On way he was assaulted by them all through and also at the place of detention. He could identify two kidnappers namely Uttam Debbarma (present appellant) and Sona Charan Debbarma as they used to come to Takarjala Market and they are inhabitants of Takarjala village. These two accused persons also know him. He made this statement before Daraga Babu at Takarjala P.S. after his return from captivity. The statement recorded by the I.O. under Section 161, Cr.P.C., as verified from the record, does not however reflect that such statement was made by him.
12. P.W. 7, Sri Samiran Chakraborty, I.O. visited the place of occurrence and examined Nepal Das who intimated the victim's father Sri. Ashok Roy Barman (PW 4) who in turn intimated the police about the incident. He recorded the statement of Nepal Das under Section 161, Cr.P.C. He also examined Sakilal Debbarma, brother of Badal Debbarma and Ranjit Debbarma but he could not get further information from them about the kidnappers. In the meantime, he received information from one police personal namely Atindra Das that kidnapped person Kamal Roy Barman had come to BSF camp on 31-8-99 and accordingly he rushed to BSF Camp at Jumpuijala. He brought the victim from the custody of Asstt. Commandant BSF to Takarjala Hospital for treatment first and thereafter took him to Takarjala P.S. where he recorded the statement of the victim under Section 161, Cr.P.C. From the said statement of victim P.W. 7, it is found that one Sona Charan Debbarma and Uttam Debbarma were among the kidnappers and he was able to apprehend only Sona Charan Debbarma. The accused appellant, who was absconding, could be arrested much later. According to P.W. 7 he examined Anju Roy Barman, wife of the complainant and one Sunil Saha and recorded their statements under Section 161, Cr.P.C. from which the names of other two co-accused namely Bidhu Debbarma and Samprai Debbarma revealed but even after making best efforts they could not be traced out. At the same tirne P.W. 7, in his cross examination stated that the informant did not disclose that he received any letter whereby Rs. 4,00,000/- (rupees four lakhs) was demanded as ransom. He also did not seize any 'Kupi' lamp in connection with this case. Most significantly it was also stated by him that victim Kamal Roy Barman did not state to him that he was kidnapped by extremists under gun point. P. W. 7 further stated that the victim did not tell him that three extremists who were out side the house compelled him to go with them under gun point. Moreover, it was stated by P.W. 7 that victim Kamal did not tell him that accused Uttam used to come to Takarjala market or to his shop and for that reason they were known to him.
13. Mr. Dhiraj Guha, learned Counsel for the appellant submits that the eye-witnesses namely P.W. l, 2 and 3, who also belong to tribal community and from the same locality, having not been able to identify none of the accused including the present accused appellant, it is unbelievable that the victim Kamal Roy Barman who does not belong to tribal community and resident of other locality would be able to know the accused appellant by face and name. According to Mr. Dhiraj Guha, the accused appellant has been implicated in an afterthought and on suspicion and no reliance can be put on the evidence of P.W. 5, victim and his father P.W.-4 inasmuch as they are not corroborated by any independent witness. This submissions, prima facie appears to be sound and acceptable but looking at the attending circumstances it is difficult to accept the same. One has to note from the evidence of the victim as well as P.W.-7, I.O. that the victim was kidnapped on 25-8-99 and released on 31-8-1999 i.e. after seven days of captivity of the kidnappers. The victim had been all along under the unlawful detention and he had been subjected to physical torture by the kidnappers. A period of seven days is sufficient to remember the face and figure of at least some of the kidnappers, for which reason the victim was able to tell the identity of some kidnappers to the police. It was not unlikely that while victim was taken along during those seven days, he could also come to know the names of at least some of the kidnappers, as during conversation amongst themselves, they would have been addressing themselves by name. Although the victim did not say anything about such things during captivity, one can visualize that the victim could have got acquainted with them, although it was in bitterness. I cannot afford to disbelieve the evidence of victim (P.W.-5) simply because he forgot to tell the police at the time of making statement under Section 161, Cr.P.C. or for some other reasons the police did not record such statement of the victim himself that he could identify some of the offenders including the accused appellant. In any case the statement under Section 161, Cr.P.C. is not a substantive evidence under the law. It is only the statement made before the Court at the time of trial, which is treated as the substantive evidence. The victim having deposed before the trial Court in clear terms that he could identify the accused Sona Charan Debbarma and the present accused appellant, and the same having not been shattered or impeached by the defence in cross-examination, the trial Court rightly accepted his deposition and relying on the same convicted the accused appellant. I find no valid reason to disbelieve the categorical statement made by the victim and I accordingly agree with the finding recorded by the learned trial Court on this aspect.
14. Learned Counsel for the accused appellant Mr. Dhiraj Guha strenuously argued that no Test Identification Parade (TIP in short) having been held by the prosecution for the purpose of identification of the accused by the victim or the eye-witnesses namely P.W.-1, 2 and 3, it is not proper or sustainable under the law to accept whatever identification has been made by the victim alone, more so in view of the evidence on record that there was no electric current in the house of P.W.-1, the place of occurrence and in the darkness it was not possible for the victim to identify any of the accused persons. The law as by now settled is that the TIP is not required to be held in all cases. It is required when the accused is not familiar with or not ever seen earlier before the incident by the witness. In the present case it is on record that the accused persons used to visit the market and the victim used to see them. Moreover during long seven days detention, the victim had already become familiar with at least some of the accused persons and he could gather even the names of some of the accused persons. The well settled law is that identification of an accused in Court is a substantive evidence of the person identifying and his identification in a T.I. Parade corroborates the same. In other words, want of evidence of earlier identification in a T.I. Parade does not affect the admissibility of the evidence of identification in Court. This has been enunciated in the case of George v. State of Kerala, reported in : 1998CriLJ2034 . In the present case the victim, as P.W.-5 deposed before the trial Court as regards the identification of the accused persons, including the present accused appellant and this is a piece of substantive evidence, which requires no corroboration by way of T.I.P. I am, therefore, not prepared to accept the submission of the learned Counsel for the appellant and propose not to interfere with the findings and reasoning of the learned trial Court on this point.
15. The other point seriously persuaded by Mr. Guha, learned Counsel for the appellant is that the prosecution having failed to examine an eye-witness namely Nepal Das, who was present at the place of occurrence along with other witnesses, who informed the mother of the victim leading to lodging of FIR, proved its callousness in proving the case, and in fact, cast a doubt on the bona fide action of the prosecution. I find no force on this submission due to the settled position of law that if a witness is otherwise reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses. In this case the defence took no ground that the victim P.W.-5 implicated the accused appellant out of old animosity for which his evidence should be treated as unreliable and untrustworthy, rather it is quite natural that a victim who has been tortured in custody by the perpetrators for 7 (seven) days, out of deep rooted anguish, deposed before the Court what he had been experiencing under detention and could identify the accused persons including the present accused appellant. In this regard I may refer to aforesaid settled law in the case of Chaudhari Ramjibhai Narasangbhai v. State of Gujarat reported in : 2004CriLJ280 . In this regard the Apex Court further held in the case of Amar Singh v. Balwinder Singh reported in : 2003CriLJ1282 , that the witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution, whether effect of their testimony is for or against the case of the prosecution but that does not mean that everyone who has witnessed the occurrence, whatever their number be, must be examined as a witness. It is further held that the mere fact that the injured witnesses were not examined cannot lead to an inference that the prosecution case was not correct. The apex Court held that the prosecution having examined three eye-witnesses in that case there was no necessity of multiplying the number of witnesses and no adverse inference could be drawn against the prosecution merely on the ground that other witnesses were not examined. It is, in other words, not necessary to examine all the witnesses. In the present case also the prosecution has examined as many as three eyewitnesses, although they have not stated to have identified the kidnappers. The examination or non-examination of the aforesaid eye-witness Sri Nepal Das would make no difference in this case and, in my considered opinion there is no ground to disbelieve the prosecution case. Accordingly, I am not inclined to disagree with the findings and reasoning given by the learned trial Court in this regard.
16. The most vital submission made by Mr. Dhiraj Guha, learned Counsel for the appellant is that charges were framed against the accused appellant under Sections 448/364A, IPC but punishment has been given under Section 365, IPC without altering the earlier charge which is not permissible under the law and no conviction and punishment can be recorded for the charges not framed against the accused. Let us have a look at the charges framed against the accused, as reproduced below:
I, Shri R.K. Ghosh, Sessions Judge, West Tripura Agartala, do hereby charge you.
Uttam Debbarma
As follows:
That you along with others on 25-8-1999 in between 20.15 hours to 20.30 hours at Haris Kobra under Tekarjala Police station, committed house trespass by entering Into the hut of Sri Badal Debbarma of Hari Kobra, with Intent to kidnap Sri Kamal Roy Barman S/o. Sri Ashok Kumar Roy Barman of Takarjala and that you thereby committed an offence punishable Under Section 448 of the Indian Penal Code and within my cognizance.
Secondly, that you along with others on the same date, time and place, kidnapped Kamal Roy Barman son of Sri Ashok Roy Barman of Tekarjala for ransom and thereby committed an offence punishable under Section 364A of the Indian Penal Code and within my cognizance.
And I hereby direct that you be tried by the Court of Session on the said charges.
Charges read over and explained to the accused in Bengali to which he pleaded not guilty and claimed to be tried.
(R.K. Ghosh)Session Judge,West Tripura, Agartala.
17. The offence under Section 448, IPC relates to punishment for house trespass with imprisonment for one year, or with fine, which may extend to one thousand rupees, or with both. The offence under Section 364A relates to punishment for kidnapping for ransom, etc. for which the prescribed punishment is death or imprisonment for life and fine. The learned trial Court after the closing of the evidence of prosecution witnesses examined the accused appellant under Section 313, Cr.P.C. The learned trial Court held that since the allegation of PW-4 is that he received a letter by which Rs. 4,00,000/- was demanded as ransom and since that letter has not been submitted to the police, it has not been specifically proved that demand for any money was made beyond all reasonable doubt. The prosecution, according to learned trial Court, failed to prove the charge under Section 364A, IPC. Nothing has been stated by the learned trial Court about the charges under Section 448, IPC framed against the accused appellant. However, the learned trial Court came to the conclusion that since it is found that said Kamal was kidnapped and secretly and wrongly confined for a week by some accused persons including accused Uttam Debbarma and Section 365, IPC provides for punishment for kidnapping or abducing with intent secretly and wrongfully confine person and prescribes punishment with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, the accused could be convicted and sentenced under Section 365, IPC to undergo rigorous imprisonment for three years and also to pay a fine of Rs. 5,000/-and in default to undergo further imprisonment for six months.
18. This Court is now confronted with a question of law:
Whether an accused who has been charged under Section 448/364A, IPC could be convicted alternatively under Section 365, IPC without the said offence being specifically put in the charge or without altering the earlier charge. For answering this question one may look at the provisions under Sections 221(1), 222(1) and 222(2) of the Cr.P.C. Section 221(1) provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once, or he may be charged in the alternative with having committed some one of the said offences. This provision would not be applicable to the present case inasmuch as the prosecution was not in doubt as to the offence allegedly committed by the accused. The accused kidnapped the victim from his house by force and there was an element of offence of house trespass while committing the offence of kidnapping. The prosecution, therefore, charged the accused under Sections 448 and 363A, IPC. In such case the accused cannot be convicted and sentenced for offence not charged against him. Section 222, Cr.P.C. deals with a case when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. The next provision is Section 222(2), Cr.P.C. which provides that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. Looking at the provisions under Sections 222(1) and 222(2) it is discernable that an accused may be convicted and sentenced for offences not charged with any major offence if the facts are proved that may reduce it to a minor offence. The term of minor offence has not been defined in the Cr.P.C. but for the purpose of Section 222, Cr.P.C. two illustrations have been provided under Section 222(4) of the Cr.P.C. which may be quoted below:
(4) Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.
Illustrations
(a) A is charged, under Section 407 of the Indian Penal Code (45 of 1860), with criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did commit criminal breach of trust under Section 406 of that code in respect of the property, but that it was riot entrusted to him as a carrier. He may be convicted of criminal breach of trust under the said Section 406.
(b) A is charged, under Section 325 of the Indian Penal Code (45 of 1860), with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under Section 335 of that code.
The Apex Court in the case of Shamnsaheb M. Multtani v. State of Karnataka reported in (2001) 2 SCC 577 : 2001 Cri LJ 1075 held that 'the illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main Ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence'. That was a case where the accused was charged under Section 302, IPC but convicted and sentenced under Section 304B,. IPC and it was held that the composition of the offence under Section 304B, IPC is vastly different from the formation of the offence of murder under Section 302, IPC and hence the former cannot be regarded as minor offence. It was also held that without affording an opportunity to the accused, a conviction under Section 304B, IPC would lead to real and serious miscarriage of justice and as a result the Apex Court set aside the conviction and sentence passed on the accused by the High Court and remanded the case to the trial Court to proceed against the accused from the stage of defence evidence giving him notice that Unless he disproves the presumption, he would be liable to be convicted under Section 304B, IPC.
19. In the present case there is no doubt that the offence under Sections 364A and 365, IPC relates to kidnapping and they are cognate offences with common ingredients. The offence under Section 364A provides for punishment for kidnapping for ransom, which prescribes for punishment with death or imprisonment for life and fine, while Section 365, IPC provides for kidnapping or abducting with Intent secretly and wrongfully to confine a person for which punishment prescribed is Imprisonment for life or rigorous imprisonment for ten years and fine. The offence under Section 365 is minor compared to the offence under Section 364A. The learned trial Court having found both the offences are cognate in nature awarded punishment under Section 365, IPC and sentenced him to undergo three years rigorous imprisonment and also to pay a fine of Rs. 5,000/- in default to undergo further imprisonment for six months. In such a case no notice is required to be served on the accused for awarding punishment for commission of offence which entails lesser punishment than the main offence charged against him. In the light of the judgment rendered by the Hon'ble Supreme Court in the case of Shamnsaheb M. Multtani (supra) I hold that no infirmity can be attributed to the conviction and sentence recorded by the learned trial Court under the offence not charged with and the same is upheld as sustainable under the law.
20. Having appreciated and considered the evidence on record, I find that the prosecution has been successful in proving its case against the accused beyond all reasonable doubt and rightly convicted and sentenced the accused-appellant under Section 365, IPC. In the light of the principle laid down by the Hon'ble Supreme Court in the case of Shamnsaheb M. Multtani (supra) 1 also hold that the learned trial Court is authorized to convict and sentence the accused under Section 365, IPC, although the said charge was not framed against him, as the offence under Section 364-A and 365, IPC are cognate offences having common main ingredients.
21. The impugned conviction and sentence dared 30-3-2002 passed by the learned trial Court in case No. ST 89(WT/A) 2000 is upheld and confirmed. This appeal stands dismissed accordingly.
Send down the LCR forthwith.
.