Akram Khan and ors. Vs. the State of West Bengal - Court Judgment

Excerpt:
- s.p. talukdar, j.1. seven accused persons namely md. javed, afzal khan, akram khan, md. kalim, @ kaloo, md. zakir khan, md. dilshad and md. mehetab were found guilty to the charge under section 364a as well as section 120b of ipc and they were convicted accordingly.2. by order dated 18th february, 2006 learned trial court sentenced all of them to imprisonment for life and to pay a fine of rs. 5000/- each, in default to suffer imprisonment for a further period of one year for commission of the offence under section 364a ipc. they were also sentenced to suffer imprisonment for life and to pay a fine of rs. 3000/- each, in default, to suffer imprisonment for a further period of one year for commission of the offence under section 120b ipc. sentences were to run concurrently.3. the said judgment and order of conviction and sentence passed by the learned trial court in the case being sc no. 80 of 2000 [st no. 4(3) of 2001] are under challenge in this appeal.4. the prosecution case relates to kidnapping of a minor boy, named vicky rajak, from his lawful guardian and then keeping him in detention. the accused persons thereafter started giving threat calls in order to extort huge amount of money from the father of the said boy and threatened him that in the event of his failure to respond to such ransom call, the boy in custody would be murdered.5. before proceeding further, it is perhaps necessary to mention that the most important witness in this case is the said boy, named vicky rajak, who was allegedly kidnapped and kept detained while the accused persons continued to give threat calls and demand ransom. he was examined as p.w.2 in this case. the said boy was reportedly a student of class-iv at the relevant time and question was naturally raised as to how the evidence of such a minor boy could be relied upon.6. section 118 of the evidence act read as follows:118. who may testify. - all persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease whether of body of mind, or any other cause of the same kind.explanation. - a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.7. mr. milan mukherjee, as learned counsel for the appellants, sought to assail such evidence of p.w.2 first on the ground that he was taken to the learned magistrate on 2nd may, 2004 though he was brought to calcutta after alleged recovery on 20th april, 2004. while referring to the statement of such victim boy as recorded under section 164(5) of the code of criminal procedure, he submitted that the learned magistrate recording such statement did not choose to administer oath.8. mr. mukherjee thus submitted that such evidence of p.w.2 does not deserve any serious consideration.9. mr. jayanta narayan chatterjee while appearing for appellant zakir adopted such submission made by mr. mukherjee and he further added that the abnormal consistencies in the evidence of such child witness p.w.2, raise serious doubt as to the genuineness. there is no doubt that competency of witness to testify is a condition precedent for examining a person as a witness. the test of competency is that the witness should not be prevented from understanding the question put to him or from giving rational answers to those questions by tender years, extreme old age, disease or other cause.__ [ref.:-ram jolaha v. emperor air 1927 pat 436; purna chand v. state : air 1959 cal. 306; l. choraria v. state of maharashtra : air 1968 sc 938.] it is, however, the settled law that the evidence of a child witness recorded without putting a few preliminary question to satisfy as to his competency cannot, as a matter of law, be treated as washed off the record altogether. in the case between badi gurvaiah v. state of a.p. : 1993 cr lj 3496, it was held that if, after carefully scrutinizing the evidence, the court comes to the conclusion that there was a great impress of truth in it, there can be no bar in law in the way of accepting the evidence of a child witness. the court should look for corroboration as a matter of caution and not as a rule of law. once a witness is found to be a competent witness even if he is not competent witness to take an oath that will not invalidate proceedings or render inadmissible the evidence. the rule generally is in favour of admission of evidence though the weight to be attached to it will naturally be a matter for consideration by the court. a certificate of a court that the child understands the duty of speaking the truth undoubtedly strengthen the credibility but even in absence of it, the evidence does not ipso facto loses its relevance.11. it is said that children are most dangerous witnesses, for due to tender age they often mistake, dreams for reality. they are capable of cramming things easily and reproducing them. they repeat as to their own knowledge what they have heard from others and are greatly influenced for fear of punishment, by hope of reward and by desire of notoriety.12. p.w.2 in his evidence in chief stated that on 17th march, 2000 on the day of bakri eid while he was playing in the ground floor of premises no. 108a, elliot road with his friend kaso, a particular person came over there and asked him to accompany him. he along with his friend kaso went with him - first to the shop of one mintu in front of the house of p.w.2. that unknown person had a ten rupee note with him but mintu did not have the change. kaso came back and p.w.2 followed him to another shop which was again closed. they went a bit further and got into a taxi. he was taken to kalabagan in a taxi. he was taken to a house. he found chappals outside a room. they went inside. they could find inside the room one telephone, almirah and tape recorder. some other persons were listening to something which was being played in the record player. p.w.2 was there for sometime. none told him anything. he along with that stranger came out and boarded a bus of route no. 71.13. p.w.2 was then taken to a room of another person at tikiapara. since the said person was absent and had been to a cinema hall, p.w.2 was made to wait outside along with the person who took him there. after sometime that person came and both of them were taken inside. he was offered food (simui). p.w.2 identified the said person as aslam. from there, he was taken to sealdah railway station by the same person who took him to kalabagan and from there, to tikiapara. p.w.2 identified him in court as md. kalu. there kalu was found talking with another person, identified as zakir, who used to work in the tailoring shop of his father.14. a train arrived at the station and kalu along with him boarded it. he was made to lie down in the train. next morning the train reached the station, named ghoga. they got down there. kalu took him to the house of another person in a cycle rickshaw. there he also found two women, one aged and another younger than the other. the two persons who were found inside were two brothers namely akram and fazo. p.w.2 identified them. p.w.2 was kept over there for 5/6 days and accused kalu was with him in the said house. he was found quite friendly with fazo and akram. thereafter, he was taken to the railway station ekchari by all three of them. there accused fajo @ afzal contacted father of p.w.2 with std telephone call. p.w.2 also spoke to his father and asked him to take him back from there. he was taken to the house of javed at ekchari. he was made to stay there for a few days. he identified accused javed. from there he was taken to the house of nizamul by accused fazo. that house was within the ekchari railway station. p.w.2 identified nizamul in court. he was made to stay there for a two days. fazo thereafter again took him back to bhagalpur in the house of akram. he was there for one day. fazo contacted father of p.w.2 over telephone through std line. he also spoke to him. p.w.2 requested his father to take him back quickly. from the house of accused akram at bhagalpur, he was taken to sabaur in the house of one dilshad by accused kalu @ md. kalim. p.w.2 identified accused dilshad in court. there he was made to stay for a day and then shifted to the house of mehtab at sabaur. again, accused kalu @ md. kalim took him there at night. in the following morning police personnel along with his father arrived there. p.w.2 identified accused md. mehtab. he was taken to bhagalpur court. from there he was brought back to his house at kolkata.15. his statement was recorded by the police officer after returning to kolkata. he was produced him in court and his statement was recorded under section 164 cr. p.c.16. in cross-examination he stated that he did not lodge any complaint against accused akram, afzal, javed and nizamul before anybody in bihar. he however claimed that he stated before the police that he could identify the said four persons if produced and he made similar statement before the magistrate as well. he also gave description of the said four persons to the police authority as well as the magistrate. he failed to disclose as to how could he gather the names of four persons. p.w.2 deposed in cross-examination that he could give the names of those persons in court under instructions of his father. he claimed to have stated before the magistrate that akram, javed and nizamul took him there in bihar. he also disclosed before the magistrate that at the time of making telephone call, the accused akram threatened him. he also stated about nizamul in his statement before the magistrate in kolkata. in cross-examination he repeated that the accused zakir khan was an employee in a tailoring shop of his father. he also stated that he used to live with his grand mother, uncle, parents, elder brother. he stated that they were two brothers and he does not have any sister. he specifically denied that he went to bhoga, ekchari etc. for the purpose of travelling. on being recalled by the prosecution, he identified his three signatures being marked 4/1, 4/2 and 4/3 and the statement recorded under section 164 cr. p.c.17. father of such minor victim was examined as p.w.3. his evidence is certainly of special significance in the backdrop of the present case. in his evidence in chief he claimed that he runs a business under the name and style 'raj' in a shop being no. b-3 in air conditioned market. he had a tailoring shop as well. zakir used to work there as an employee under him. he sold it out. out of the sale proceeds, he paid an amount of rs. 20,000/-, a swing machine and a bicycle to zakir. on 17.3.2000 while in his shop, he received a telephonic message from his wife at about 1.00 p.m. that his son vicky was missing. he rushed back and searched for him till 2.30 p.m. he then made a g.d. entry at park street police station. next day, he made announcement in the locality with microphone.18. on 19th march, 2000 in the evening, he received a telephonic message. the caller demanded rs. 10 lakhs from him. after about one and a half hour, the same voice was heard asking him not to intimate police.19. on 20th march, 2000 p.w.3 informed local police station and told about the calls he received on the previous day. he identified his signature in the recorded statement, marked ext.5/1. he identified his former employee zakir khan. again a call was received on 21st march, 2000 in the morning. amount demanded was reduced to rs. 7 lakhs. caller also said that p.w.3 was having money out of the sale of the tailoring shop.20. then a further call on 25.3.2000. on 23.3.2000, amount was reduced to rs. 5 lakhs. caller asked him to talk to the missing son, vicky who over phone wanted to be brought back early. further call was on 1st april, 2000 whereby amount was again reduced to rs. 3 lakhs. p.w.3 agreed to pay. caller said that the place of payment of ransom would be informed latter.21. on 2nd april, 2000 after returning from temple and offering puja p.w.3 found that his inmates were crying. they were told over phone that his missing boy had been killed. p.w.3 informed lal bazar police about each and every call.22. on 4th april, 2000 he received a call once again. he was asked to go to jamalpur railway station by upper india express with rs. 3 lakhs and wearing a black shirt being accompanied by a relative.23. p.w.3 stated in his evidence in chief that he along with his cousin naresh rajak left for jamalpur on 4th april, 2000 at 8.30 p.m., from sealdah railway station. six or seven police officers in civil dress accompanied them. they all arrived at the said station. p.w.3 being advised by an accompanying police officer in plain dress contacted his wife over phone. he was told by his wife that another call had been received whereby he was asked to proceed to sahebgunj station where his son would be given back to his custody. he was thereafter asked to get down in a station named ghoga with similar assurance. they accordingly went straight way to sahebgunj railway station. after waiting for quite sometime, they returned since none was there in the said railway station. they returned to the hotel in the locality. on the next day i.e. on 6.4.2000, they left for kolkata by jamalpur express and reached there on 7.4.2000.24. p.w.3 deposed that on 13th april, 2000 he received a further telephonic message asking him to go to ghoga railway station. they reached ghoga railway station in the morning of 15th april, 2000.25. on 17th april, 2000 at about 10 p.m. the police officers who accompanied him from kolkata as well as the officer of bihar left for the destination in 4/5 police vehicles. after driving for sometime they reached a house. police personnel knocked the door and a person came out. on being asked, he disclosed his name as javed. in response to query, p.w.3 stated that javed disclosed that vicky had been with him for a few days and he was kept in a room under lock and key. vicky was there for sometime along with one person, named fazo.26. p.w.3 identified javed in court. javed was then taken to the custody by the raiding party. being led by javed they went to another house. p.w.3 was kept in the jeep. after sometime he was also taken to the house. he was asked to identify one of the persons. he identified the person who met him in the train on 5th april, 2000 and asked him to get down at ghoga railway station. the said person disclosed his name as fazo. he disclosed that vicky had been with him for a few days. he further disclosed that vicky had been with akram at that time. on search, a pistol and two catridges were recovered from the body and police took charge of the same. p.w.3 identified the accused fazo @ afzal. after taking fazo in custody, they left for the house of akram. being led by accused fazo, they reached the house of akram. he was identified by fazo. on search a revolver was recovered from his possession. police officers took him in custody as well. from there, they proceeded towards the house of kalu. being led by accused akram, they reached the house of md. kalu. he was recognized by p.w.3 as one of the friends of accused zakir khan. kalu further disclosed that vicky had been in the house of mehetab. after taking kalu in custody, the entire team proceeded towards the house of mehetab being led by kalu. reaching there they could find vicky was crying. mehetab was taken into custody. vicky disclosed that he had been in the houses of all those accused persons. he also disclosed the names of two other persons being dilshan and nijamul. p.w.3 was further told by him that kalu took him from kolkata.27. thereafter, they returned to p.s. kahargaon on 19.4.2000. they went to the bhagalpur court. vicky identified the accused person there. they thereafter left for kolkata by train. he took custody of his son from bankshall court, kolkata. he identified his signature on the bond.28. p.w.3 in his evidence in cross-examination stated that he made statements before the police officer on 17.3.2000, 20.3.2000, 04.4.2000, 11.4.2000 and 18.4.2000. he got back his son on 18.4.2000. accused named akram, fazo @ afzal and javed were taken in custody by the police. though reference was made to accused nijamul p.w.3 admitted that he could not give the names of the accused persons in the statement recorded on 4.4.2000. again he deposed that he stated before police officer about the demand of ransom by the accused person on 20th march, 2000.29. p.w.3 was subjected to extensive cross-examination. referring to his evidence that one of the persons, who boarded the train 2/3 stations after p.w.3 along with his relative and the police personnel got into the train, asked him if he was mahendraji, it was submitted that this reflects inherent improbability. p.w.3 deposed that the said person asked him to get down from the train at station ghoga where he was required to hand over cash of rs. 3 lakhs and the said person assured him proper berth in order to enable him to come back to kolkata. p.w.3 declined to get down at the said station ghoga and told him that he would like to go to sahebgunj where he would hand over money and take back his missing son. they went to sahebgunj railway station where they got down and though they waited for long, none came to them. they thereafter went to local hotel and on the next day i.e. on 6.4.2000 they left for kolkata by jamalpur express and reached kolkata on 7.4.2000. he stated in cross-examination that during the said period, several telephonic messages from the miscreants were received at home.30. once again, in his cross-examination he deposed that on 13.4.2000 he received another telephonic message from the miscreants asking him to go to ghoga railway station 15.4.2000 with rs. 3 lakhs and with his relative wearing a black shirt.31. in his extensive cross-examination p.w.3 stated that he mentioned about the demand of ransom by the accused persons before the police on 20th march, 2000. he stated that he made statement before the police authority on 30.3.2000, 14.4.2000 and 11.4.2000 at lalbazar police headquarters. he made statement before the police on 18.4.2000. he admitted that he did not make any arrangement for recording of voice of the miscreants but that was done by the police officer. he also did not make any attempt but the police officer did enquire from the telephone department to ascertain wherefrom those telephonic messages were coming. he stated that the police officer examined his wife.32. p.w.3 stood the test of cross-examination quite well.34. p.w.4 was the owner of a shop by the side of the house of p.w.3. in his evidence in chief, he corroborated as evidence of p.w.2 while deposing that on 17.3.2000, at about 11.30/12 noon, one unknown person came to the shop with vicky and another. he identified accused kalu as the said person. he wanted to purchase two chocolates for the children accompanying him. p.w.4 handed over the same but since there was no change for the ten rupee note offered by the said person, those were returned.34. he came to know in the evening that vicky was missing.35. p.w.5 is the scribe of g.d. no. 1504 dated 17.3.2000, which was marked ext.6. p.w.3 signed on it. such signature being identified by p.w.5 was marked ext.6/1.36. p.w. 6 corroborated p.w.3 on all material points. he accompanied p.w.3 to jamalpur. he supported the earlier evidence that p.w.3 was carrying cash of rs. 3 lakhs. according to p.w.6, they waited for the miscreants for 3/4 hours at the station but none approached them. mahendra contacted his residence and was told by his wife that he was required to proceed to sahebgunj by sahebgunj local train on the same day. accordingly, he along with mahendra and the police party started for sahebgunj by local train. two unknown passengers boarded the train from some station in between. a tall man with fair complexion approached them. on being asked by him mahendra identified himself and said that he was carrying cash of rs. 3 lakhs. the said man asked him to get down at ghoga railway station. mahendra demanded that the missing boy vicky must be shown first. mahendra was then told that they should get down at ghoga railway station and pay the money and thereafter should proceed to sahebgunj by danapur express which was coming next and there, the son of mahendra would be available. p.w.6 who is a very important witness was also subjected to extensive cross-examination and he could not be shaken the least.37. p.w.7 deposed that on 17.4.2000 some people came to the telephone booth owned by one bikash kumar singh and identified themselves as members of the calcutta police organization. he was also shown their identity cards. in response to their query, p.w.7 said that they used to maintain record of callers and call numbers. he produced the register before the police and he identified the entry dated 19.3.2000 in the handwriting of bikash singh and the same had been marked ext.7. he also identified another entry dated 19.3.2000 marked ext.7/1. he further identified two entries dated 21.3.2000 in his writing and the same had been marked ext.7/2 and 7/3. similarly, he identified other entries marked ext.7/4, ext.7/5, ext.7/6, ext.7/7, ext.7/8, ext.7/9, ext.7/10, ext.7/11, ext.7/12 and ext.7/13. such p.w.7 stated that this register containing the entries regarding the call details from 1.1.2000 to 16.4.2000 were made over to police. he signed the register at the time of its seizure. referring to a particular caller, he stated that his name was akram khan and he was due to pay a sum of rs. 31 towards call charge. he clarified by saying that his call charge on the relevant occasion amounted to rs. 81 against the call unit of 61 but he paid only rs. 50 on this occasion. he further stated that he made a statement before the magistrate and he identified his signatures in such recorded statement, marked ext.9 and 9/1. in cross-examination he stated that he did not mention the names of javed, akram or other person when his statement was recorded by the magistrate.38. p.w. 8 is the owner of the telephone booth who again went a long way to substantiate the evidence of his earlier witness, p.w.7. he too made a statement before the magistrate and he identified his signature in the same being marked ext.10. he categorically denied that akram or javed never made any call from their booth.39. p.w. 9 stated that on 17.3.2000 towards noon one kalu being elder brother of one bablu came to their factory premises along with a child aged about 7/8 years. being asked the said man disclosed that the boy was his nephew. so he identified accused kalu as the said person.40. p.w.10 stated that on being asked, kalu said that he was going to reach the boy to his native village.41. p.w.11 deposed that on 17th march, 2000 on the day of bakri eid the elder brother of bablu came to their workshop along with a child aged about 7/8 years. he had an interaction with his brother bablu. being asked the said person, kalu, identified the said boy as his nephew.42. p.w.12 is the judicial magistrate who recorded the statement of the victim boy under section 164(5) cr. p.c. he also recorded such statements of p.w.7 and p.w.8. he identified such recorded statement of the victim boy marked ext.4. similarly he proved the recorded statement of p.w 7 and that of p.w.8 and the same had been marked ext.9 and ext.10/2 respectively. there is nothing significant in his cross-examination. nothing could transpire from his cross-examination which could raise any controversy regarding such recorded statement.43. p.w.13 is the police officer who on the basis of recorded statement started park street p.s. case no. 117 dated 20th march, 2000 under section 363a of the ipc. he filled in the formal fir marked ext.5/2 as officer-in-charge of the park street police station. he took up investigation. he also referred to the recorded statement dated 12.4.2000 of mahendra prasad rajak and on its basis he recorded a general diary no. 1136 dated 12.4.2000. he sought for necessary amendment of the charge from section 363a of ipc to section 364a of ipc. he was relieved as investigating officer of the case on 20th april, 2000.44. p.w.14 referred to the case of kidnapping of a minor boy vicky rajak which was recorded on 17.3.2000 at park street police station. he claimed that as officer of the detective department and under instructions of the deputy commissioner he perused the matter independently of park street p.s. subsequently the case was taken over by the detective department. in his evidence in chief he referred to the various steps taken in course of investigation. the prosecution case derived substantial support from such evidence of p.w.14 who, in fact, had gone a long way to corroborate the evidence of p.w.2, p.w.3 and other material witnesses.45. there is further corroboration of the prosecution case in the evidence of another police officer, being p.w.15.46. p.w.16 is the police officer attached to ntpc p.s. kahelgaon at bhagalpur, bihar. from his evidence it appears that they arrested md. javed md. afzal, md. kalim, akram and md. mehetab. he stated that the father of the victim was with them. the arrested persons were brought to the police station in the morning of 18.4.2000.47. as it appears from his evidence in chief, there had been some mistake on his part in identification of the accused persons with reference to their names.48. in cross-examination, he stated that after recovery, the victim boy was brought to kahelgaon police station and was later produced before the learned chief judicial magistrate at bhagalpur. he admitted that he was not interrogated by kolkata police officials regarding this case.49. p.w.17 in his elaborate evidence in chief sought to substantiate the prosecution case on all material points. in his cross-examination he stated that he did not examine the father of the victim. he claimed that some instruments were attached to the telephone at the victim's house but there had been no response. he also stated that he could learn from the telephone voice that certain calls were received from bihar but the same could not be identified. he admitted that p.w.2, vicky rajak, did not tell him that he stayed at the residence of javed with accused fazo @ afzal. on behalf of the defence, certain questions were placed to such p.w.17. in response to the same, p.w.17 deposed that statement of m.p. rajak was recorded after recovery of vicky rajak. he admitted that p.w.3 did not tell him that they started for the destination in 4/5 police vehicles from their hotel at kahalgaon. he did not also tell that after driving for an hour they reached a house and a person came out after knocking of the door by the police. p.w.17 further stated that p.w.3 did not tell him that on being asked by the police officer, the said person, javed disclosed that vicky had been with him for a few days and that he kept him in a room under lock and key. p.w.3 also did not state that at the time vicky had been with a person named fazo.50. p.w.17 admitted that he did not enquire about the source of the ransom money. in cross-examination he deposed that he visited the house of vicky rajak for about 7/8 times during investigation. the telephonic call received on 19.3.2000, 21.3.2000, 25.3.2000, 26.3.2000, 1.4.2000, 2.4. 2000, 7.4.2000, 9.4.2000, 13.4.2000 and 15.4.2000 were not recorded except in the statement of witnesses. such p.w.17 further stated that p.w.3 did not tell him on 18.3.2000 he made announcement with the help of microphone only that on 20.3.2000 he informed the local police station about the telephonic message received on the previous day. p.w.3 did not mention the time as 1 p.m. as the time of receipt of telephone message from his wife and the time as 2.30 p.m. up to which he made search. he further stated that p.w.7 and p.w.8 did not tell him the date of receipt of telephone calls and the numbers of telephone from which such calls were coming. such witness also stated that he was in charge of investigation from the point of kidnapping of the minor boy.51. it appears that the entire evidence implicating the respective accused persons were placed at the time of their respective examination under section 313 of the code of criminal procedure.52. the stand of the accused persons was just a plea of innocence.53. while assailing the impugned judgment, mr. jayanta narayan chatterjee appearing as learned counsel for the appellant zakir submitted that 'abnormal consistency' in the evidence of p.w.2 who is admittedly a child witness can only give rise to surprise and suspicion. he further submitted that there had been no evidence of force or threat upon the victim boy either in his evidence or in the evidence of his father being p.w.3.54. mr. milan mukherjee, appearing as learned counsel for the other appellants, submitted that there is no satisfactory evidence of any 'ransom call' or any 'threat'. he expressed surprise while submitting that how could there be a demand of rs. 3 lakhs from the complainant who was having rather meager income. mr. mukherjee further submitted that in absence of any evidence of some kind of communication between the accused persons and that too, prior to the commission of the act, there cannot be any 'criminal conspiracy'.55. section 120a of the indian penal code defines 'criminal conspiracy'. it reads as follows:when two or more persons agree to do, or cause to be done,-(1) an illegal act, or(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:56. provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.explanation.-it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.the ingredients of the offence are-(1) there must be an agreement between the persons who are alleged to conspire; and (2) that the agreement should be(i) for doing of an illegal act, or(ii) for doing by illegal means an act which may not itself be illegal.57. though there may be plurality of conspirators it is not necessary that all should be brought to trial together. one person may be implicated alone, for conspiring with other persons who are not in custody, or who are even unknown to the person so implicated.58. the conspiracy is an inference from circumstances. there may not always be much direct evidence about it. since conspiracy is often hatched up in secrecy, it may not always be possible to prove it by direct evidence but it is to be inferred from the acts, statements and conduct of the parties to the conspiracy.59. so far the present case is concerned there is well corroborated evidence of a number of witnessesparticularly of p.w.2 and p.w.3, directly implicating accused kalu with the alleged act of taking away of the victim boy. identifying accused kalu, p.w.2 categorically stated that he was the man who took him to kalabagan, thereafter tikiapara and from there to sealdah railway station. accused zakir who was otherwise known to p.w.2 as well as p.w.3, since he was reportedly an employee in the tailoring shop of the latter, came into the picture at sealdah railway station. his presence in the said station can by no stretch of imagination be said to be accidental, nor a strange coincidence. his understanding with accused kalu can readily be inferred from the evidence on record.60. the venue thereafter shifts to the station, 'bhoga'. p.w.2 was taken to a house and there he could come across two persons namely akram and fazo. he was there for 5/6 days. accused kalu was with him as well. there is evidence that accused fazo @ afzal spoke to the father of p.w.2 over phone and thus, involvement of accused fazo cannot just be lost sight of.61. p.w.2 was thereafter taken to the house of accused javed and from there to the house of nijamul. mere fact that p.w.2 was made to stay there for sometime cannot by itself lead to the conclusion that those two persons namely javed and nijamul were party to the crime. after careful consideration of the entire evidence on record, we could not find any such material so as to hold that the said two persons, namely javed and nijamul, were involved in the criminal conspiracy. in fact, nijamul had been acquitted by ld. trial court. p.w.2 was then taken to the house of accused dilshad and thereafter, to that of accused mehetab. mere fact that he was accommodated in the said house cannot be a sufficient justification for holding that those two persons were also involved.62. this leaves us with four accused persons namely md. kalim @ kalu, md. zakir khan, akram khan and afzal khan @ fazo.63. the evidence on record as analyzed earlier leaves little scope for any doubt or dispute as regards involvement of the said four appellants/convicts.64. on behalf of the defence, it was submitted that there is no satisfactory explanation for not examining kaso who was allegedly with the victim boy on the relevant date. it was further submitted that there can be no explanation either for non-examination of the mother of the victim boy i.e. the wife of p.w.3.65. it cannot be disputed that these two aspects could not be satisfactorily explained by the prosecution. but what does it lead to?66. there is evidence on record that the mother of the victim boy received some of the ransom calls. her evidence no doubt could have strengthed the prosecution case. but her non-examination does not really dilute the evidence of the prosecution witnesses and particularly that of p.w.3. after all, p.w.3 in his evidence also referred to such ransom calls and his subsequent reporting of the same to the concerned police authority.67. it is well settled that credibility of testimony depends on judicial evaluation of the totality and not isolated scrutiny. marginal mistakes and minor inconsistencies cannot demolish the prosecution case. it cannot be disputed that truth may also suffer from infirmity when projected through human process. the prosecution is required to prove the charge beyond any reasonable doubt. it is not that such proof must be beyond all doubt.68. it is not necessary for the prosecution in order to establish the guilt of the accused person to 'dot every 'i' and cut every 't''. what matters is how far the prosecution could prove the charge beyond the scope of any confusion or controversy.69. mr. goswamy, as learned public prosecutor, referred to the decision of the apex court in the case between state of tamil nadu v. nalini and ors. reported in : 1999 cri. lj 3124, in support of the contention that voluntary confession by one of the main accused persons assigning her pivotal role in conspiracy cannot be brushed aside. when such confessional statement was corroborated by evidence of other witnesses and material document, that leaves the prosecution with no further burden. there can be no doubt about such legal proposition. but such confessional statement is also required to be weighed in the context of the overall evidence on record.70. on behalf of the defence, reference was made to the decision in the case between state of assam and m. ahamed reported in (1983) scc 325. no doubt, the child witness, if appears to be tutored, conviction cannot be based solely on his testimony. here in the present case, the evidence of the said child witness i.e. p.w.2 had derived convincing support and strength from the other evidence on record, particularly that of p.w.3.71. reference was further made to the decision in the case between chhagan dame and state of gujarat reported in (1995) supreme court cases (cri) 182, in this context.72. as regards precedent, it may be mentioned that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but govern and are qualified by the particular facts of the case in which such expressions are to be found. [ref.:-lord halsbury in quinn v. leathem 1901 ac 495]73. lord denning said:if lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. they will be lost in 'the codeless myriad of precedent. that wilderness of single instances.' the common law will cease to grow. like a coral reef it will become a structure of fossils.74. it is well settled that the court is required to carefully consider whether the child witness is under the influence of any tutoring.75. in the present case, we fail to find any such concrete material so as to hold that the entire evidence of p.w.2 was tutored. one stray statement of mentioning names of some accused persons under instructions of his father cannot justify brushing aside of the otherwise consistent and convincing evidence.76. it was further submitted that p.w.3 as would appear from the evidence on record, did not have the financial background so as to hold that there could be any ransom call demanding money from him. this suggestion is rather hypothetical in nature. moreover, there is evidence on record that p.w.3 sold out a tailoring shop and his former employee i.e. appellant zakir was an employee in that shop under him. this by itself succeeds to heal up the wound, assuming that there had been any.77. considering all such facts and circumstances, we hold that the appellants md. javed, md. dilshad, md. mehtab cannot be denied the benefit of doubt. they be accordingly held not guilty of the offence under section 364a and section 120b ipc.78. they be acquitted accordingly. if on bail they be released from the respective bail bonds at once.79. having regard to consistent, well corroborated and well knit evidence on record, we hold the appellants akram khan, afzal khan @ fazo, md. zakir khan and of course, md. kalim @ kalu guilty of the charges under section 364a and section 120b ipc. their conviction and sentences inflicted on them by the learned trial court do not deserve any interference. the same be affirmed.80. send a copy of this judgment along with the lower court record immediately for information and necessary action.81. this disposes of the criminal appeal being no. 180 of 2006.s.p. talukdar, j.82. i agree.