Deva @ Siddar @ Sardar vs The State Of Madhya Pradesh on 7 August, 2024

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Madhya Pradesh High Court

Deva @ Siddar @ Sardar vs The State Of Madhya Pradesh on 7 August, 2024

This appeal has been preferred against the judgment dated 02/12/2016 passed by the Court of Special Judge (Dacoity) Sheopur (M.P.) in Special Case No.38/2013 dacoity, whereby the appellant has been convicted under Section 364-A of I.P.C. read with Section 11/13 of M.P.D.V.P.K. Act and sentenced to undergo Signature Not Verified Signed by: AMAN TIWARI Signing time: 8/7/2024 7:13:08 PM 2 Life Imprisonment with a fine of Rs.5,000/- with default stipulation.

2. Prosecution case, in brief, is that on 01.10.2009, complainant Badri (PW-3) had lodged a report at Police Station that today at 4 am, his son Mukesh went to the field from home for starting bore. When he did not return home till 2 pm, they searched him but could not find him. On that report, missing person report was registered at Missing Person No.5/09 at Police Station Haja and matter was investigated. During investigation, on 11.10.2009, missing person Mukesh appeared at the police station and his statement was recorded. Mukesh stated in statement that on 01.10.2009 at 04:00 am, he went to field from home for starting bore and as soon as he entered into the Ghopa made on bore, four persons armed with guns came there and surrounded him and caught hold him and forcefully took him through the Ghoret forest to Kauno forest and kept him hostage and demanding from him three lakh rupees. Today, at 1 o'clock in the afternoon, one of the miscreants on his request took him towards nala to answer the call of nature. On finding opportunity, he ran away from there.

The further prosecution case is that the miscreants used to call each other by name. A miscreant used to apply tilak and was of short height and other miscreants used to call him Seva Mukhiya resident of Bhurapura Pachnaya, second miscreant was Kamal Singh Rawat R/o Gota, third miscreant was Siddhar @ Deva Banjara of gram Parvati Badoda, the fourth miscreant was of dark Signature Not Verified Signed by: AMAN TIWARI Signing time: 8/7/2024 7:13:08 PM 3 complexion with strong physique and was wearing an earring in his right ear, to whom the other miscreants used to call Pappu. He could not see one miscreant who used to bring flour and other articles for miscreants. After recording the statement of abductee, Shri R.B. Sharma (PW-5) registered the FIR (Exh P-9) at Crime No.113/2009 at Police Station Vijaypur. The matter was investigated. Upon completion of investigation including recording of statements, collection of evidence and necessary formalities, challan was filed. The charges were framed which appellant denied and claimed for trial. The learned Special Court after appreciating the evidence available on record, convicted and sentenced the present appellant, as mentioned above by the impugned judgment.

3. Being aggrieved by the impugned judgment of conviction and order of sentence, appellant has preferred the instant appeal.

4. Learned counsel for the appellant submits that the Special Court has not appreciated the evidence placed on record in correct perspective. No incriminating article has been seized at the instance of appellant. The testimony of star witness of the prosecution Mukesh (PW-1) suffers from material contradictions and omissions. He changed the entire version of prosecution in his statement. Similarly, the statement of his father is also on the same footing. It is also submitted by counsel for appellant that the appellant is in jail since the date of his arrest and he has already suffered more than thirteen and a half years' incarceration (pre and post trial). The offence under Section 364-A of IPC is not made out because Signature Not Verified Signed by: AMAN TIWARI Signing time: 8/7/2024 7:13:08 PM 4 neither any demand of ransom in order to murder nor abduction in order to murder has been proved. At the most, the offence falls under Section 363 of IPC for which more than sufficient sentence has already been served by the appellant.

5. Per contra, learned counsel for the State by supporting the impugned judgment submits that the learned trial Court after appreciating the evidence in proper perspective has rightly convicted and sentenced the appellant. No interference is warranted in the impugned judgment of conviction and sentence.

6. Heard learned counsel for the parties and perused the record.

7. As per the FIR (Exh. P/9), on 01.10.2009, at 4 am, in the morning, Mukesh (PW-1) went to the field from home for starting bore. The moment he entered the 'Ghopa' at the field, four miscreants armed with guns came there and surrounded him and caught hold of him and forcefully took him through the Ghoret forest to Kauno forest and kept him hostage. He has been kept under the custody of these miscreants upto 11.10.2009 and in between they demanded Rs.3 lacs from him as ransom.

8. Mukesh (PW-1) in the Court statement though as regards some particulars has changed the story and stated that he had gone to irrigate the field. At 9 pm, there was a power cut and he had fallen asleep. While he was sleeping, a miscreant came to him and other miscreants were standing on the medh. They were total four persons. The miscreant who came near him had a gun. The miscreant took lathi from him and asked him to show them the way, Signature Not Verified Signed by: AMAN TIWARI Signing time: 8/7/2024 7:13:08 PM 5 then he went with him. They took him ahead in the name of showing the way. They took him to the dang and tied his hands and legs. They kept him with them for 14 days. Those peoples used to demand five lakh rupees from him. Since he had no phone or diary, therefore, he could not call. Similar is the statement of his father Badri (PW-3). Munna (PW-2) deposed in his statement that when Mukesh returned back, then he told him that present appellant had abducted him. Shrinivas (PW-10) did not support the version of prosecution in toto, therefore, he was declared hostile.

9. Mukesh (PW-1), Munna (PW-2) & Badri (PW-3) remained intact in their cross-examination on the point that present appellant along-with other co-accused persons abducted Mukesh (PW-1). Whatever contradictions and omissions appeared in statements of these witnesses are material in determining the nature of offence but so far as the offence of abduction as defined under Section 362 of IPC and punishable under Section 363 is concerned, in that regard these three witnesses are found to be believable.

10. Shri R.B. Sharma (PW-5) stated that on 01.10.2019, he was posted as In-charge Police Station Vijaypur. On the said date, Badri reported that his son had gone to the field for starting bore but did not return. The missing person report No.5/2009 was registered at Vijaypur. During the investigation, on 11.10.2009, Mukesh appeared at the police station, whose statement was taken. The spot map (Exh.P-10) was prepared and statements of witnesses were recorded. Though the missing person report and papers related Signature Not Verified Signed by: AMAN TIWARI Signing time: 8/7/2024 7:13:08 PM 6 thereto have not been filed but that does not affect the case of prosecution adversely in the facts and circumstances of the case.

11. Abhishek (PW-13) stated that he was posted as Naiab Tashildar at Tahsil Vijaypur where on 09.12.2010, he has got conducted TIP of Deva (present appellant), Fauja, Pappu, wherein abductee Mukesh has identified the present appellant Deva. He prepared the identification memo (Exh. P-1) which bears signature of Mukesh too. He remained intact on his statement in cross- examination. The identification of present appellant is also established beyond doubt in the light of testimony of Mukesh (PW-

1) and Abhishek (PW-13).

12. The testimonies of other witnesses are related to other co- accused. Therefore, so far as present appellant is concerned, their testimony is not of much importance.

13. In case of Vishwanath Gupta v. State of Uttaranchal, (2007) 11 SCC 633, the Hon'ble Apex Court while discussing the ingredients of Section 364-A of IPC has observed as under :-

8. According to Section 364-A, whoever kidnaps or abducts any person and keeps him in detention and threatens to cause death or hurt to such person and by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, and claims a ransom and if death is caused then in that case the accused can be punished with death or imprisonment for life and also liable to pay fine.

9. The important ingredient of Section 364-A is the abduction or kidnapping, as the case may be.

Thereafter, a threat to the kidnapped/abducted that if Signature Not Verified Signed by: AMAN TIWARI Signing time: 8/7/2024 7:13:08 PM 7 the demand for ransom is not met then the victim is likely to be put to death and in the event death is caused, the offence of Section 364-A is complete. There are three stages in this section, one is the kidnapping or abduction, second is threat of death coupled with the demand of money and lastly when the demand is not met, then causing death. If the three ingredients are available, that will constitute the offence under Section 364-A of the Penal Code....."

14. Now, it is to be examined whether the act of present appellant/accused falls within the definition of offence under Section 364-A of IPC. In this regard, it is submitted by learned counsel for the appellant that there is no evidence as regards demand of ransom and there is also no evidence on record that the alleged abduction was committed in order to commit murder of Mukesh.

15. To ascertain the nature of the offence, it is relevant to go through the definition of offence under Sections 363, 364, 364-A of IPC which are as under :

Section 363. Pnishment for kidnapping.-Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 364. Kidnapping or abudcting in order to murder.-Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Signature Not Verified Signed by: AMAN TIWARI Signing time: 8/7/2024 7:13:08 PM 8

Section 364A. Kidnapping for ransom, etc.- Whoever kidnaps or abducts any perosn or keeps in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international iner- governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.

16. It is culled out from the bare perusal of aforesaid provisions that Section 363 IPC punishes the act of kidnapping while Section 364 of IPC thereof punishes the offence of kidnapping and abduction of a person in order to murder him. Section 364-A of IPC further adds to the gravity of offence by involving an instance of coercive or substantial threat thereof, to make a demand for ransom.

17. In the light of provisions of Sections 363, 364, 364-A of IPC and in the light of law laid down in the case of Viswanath Gupta (Supra), it is clear that to prove the offence under Section 364-A of IPC, it is necessary to establish that not only such kidnapping/abduction took place but also thereafter the accused threatened to cause death or hurt to such person or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter- governmental organisation or any other person to do or abstain Signature Not Verified Signed by: AMAN TIWARI Signing time: 8/7/2024 7:13:08 PM 9 from doing any act or to pay a ransom.

18. In the case of S.k. Ahmed v. State of Telangana, (2021) 9 SCC 59 the Hon'ble Apex Court while setting-aside the conviction of appellant therein under Section 364-A of IPC modified it to Section 363 of IPC by observing as under :

42. The second condition having not been proved to be established, we find substance in the submission of the learned counsel for the appellant that conviction of the appellant is unsustainable under Section 364-A IPC.

We, thus, set aside the conviction of the appellant under Section 364-A. However, from the evidence on record regarding kidnapping, it is proved that the accused had kidnapped the victim for ransom, demand of ransom was also proved. Even though offence under Section 364-A has not been proved beyond reasonable doubt but the offence of kidnapping has been fully established to which effect the learned Sessions Judge has recorded a categorical finding in paras 19 and 20. The offence of kidnapping having been proved, the appellant deserves to be convicted under Section 363. Section 363 provides for punishment which is imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.

19. In case of Ravi Dhingra Vs. State of Haryana, (2023) 6 SCC 76 while placing reliance on the aforesaid case, the Hon'ble Apex Court was also of the view that in absence of demand of ransom or threat to cause death or conduct which gives rise to a reasonable apprehension that such person may be put to death or hurt, the case of prosecution falls under Section 363 of IPC instead of Section 364-A of IPC and, therefore, altered his sentence Signature Not Verified Signed by: AMAN TIWARI Signing time: 8/7/2024 7:13:08 PM 10 accordingly.

20. Here in this case, as per the story of prosecution, the demand of Rs.3 Lacs was raised by the miscreants but in the statement of Mukesh (PW-1) and Badri (PW-3), they stated that demand of Rs. 5 Lacs was raised. Mukesh (PW-1) also stated that since he was not having phone and diary, therefore, he could not call. It is also not clarified by this witness that out of four miscreants who had demanded Rs.5 Lacs from him. Moreover, there is absence of ample and satisfactory evidence as regards the giving of threat by the appellant to this witness to cause death or put in danger to murder. No such specific act of present appellant is echoed from the evidence. Having regard to the omissions and contradictions and variations in the statements of Mukesh (PW-1), Badra (PW-3), the necessary ingredients of Section 364-A of IPC as regards the demand of ransom and causing threat to commit murder is not established beyond doubt. Therefore, present case falls within the definition of Section 363 of IPC instead of Section 364-A of IPC.

21. The maximum sentence for offence under Section 363 of IPC is seven years. Similarly, the maximum sentence for offence under Section 11 of MPDVPK Act, in case no specified punishment is provided for that act in IPC and that act is also not punishable under Section 9 of the MPDVPK Act, is upto ten years. Minimum sentence for offence under Section 13 of MPDVPK Act is 3 years. Keeping in view the aforesaid provisions, the appeal is partly allowed by altering the conviction of present appellant from Signature Not Verified Signed by: AMAN TIWARI Signing time: 8/7/2024 7:13:08 PM 11 Section 364-A of IPC r/w Section 11/13 of MPDVPK Act to Section 363 of IPC r/w Section 11/13 of MPDVPK Act.

22. So far as the sentence is concerned, the appellant has already undergone the maximum sentence as provided for offence under Section 363 of IPC, therefore, he is sentenced to the maximum sentence provided under Section 363 of IPC, which is of seven years which has already undergone by him, with fine as imposed by the Trial Court u/s 364 A of IPC.

24. The appellant is in jail. He be released immediately, if not required in any other offence.

25. Let a copy of this judgment be immediately provided to the appellant, free of cost.

26. The record of the Trial Court be sent back along with copy of this judgment, for necessary information and compliance.

                                   (VIVEK RUSIA)                         (RAJENDRA KUMAR VANI)
                                      JUDGE                                    JUDGE




                         Aman




Signature Not Verified
Signed by: AMAN TIWARI
Signing time: 8/7/2024
7:13:08 PM

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