Jharkhand High Court
Mahendra Bhuian Son Of Sammal @ ... vs The State Jharkhand on 14 March, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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Cr. Appeal(DB) No.1768/2017
With
Cr. Appeal(DB)No.1744/2017
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No.1768 of 2017
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[Against the judgment of conviction dated 12.07.2017 and order
of sentence dated 15.07.2017 passed by the learned Addl.
Sessions Judge-IV, Chatra in S.T. Case No.48 of 2013]
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Mahendra Bhuian Son of Sammal @ Shyamalal Bhuian
.... .... Appellant
Versus
The State Jharkhand .... .... Respondent
With
Cr. Appeal (DB) No.1744 of 2017
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[Against the judgment of conviction dated 12.07.2017 and order
of sentence dated 15.07.2017 passed by the learned Addl.
Sessions Judge-IV, Chatra in S.T. Case No.48 of 2013]
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Rajendra Ganjhu, Son of Chhathu Ganjhu
.... .... Appellant
Versus
The State Jharkhand .... .... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
.....
For the Appellant : Mr. Arwind Kumar Kumar, Advocate
[In Cr. Appeal (DB) No.1768/2017]
Mr. Lukesh Kumar, Advocate
[In Cr. Appeal (DB) No.1744/2017]
For the State : Mrs. Vandana Bharti, APP
[In Cr. Appeal (DB) No.1768/2017]
Mr. Vishwanath Roy, Spl. P.P.
[In Cr. Appeal (DB) No.1744/2017]
.....
C.A.V. on 29/02/2024 Pronounced on 14 /03/2024
Per Sujit Narayan Prasad, J.:
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1. Both the appeals since arisen out of common judgment of conviction dated 12.07.2017 and order of sentence dated 15.07.2017, hence, these appeals have been directed to be heard together and are being disposed of by this common order/judgment.
2. The instant appeals, filed under Section 374 (2) of the Code of Criminal Procedure, are directed against the judgment of conviction dated 12.07.2017 and order of sentence dated 15.07.2017 passed by the learned Addl. Sessions Judge-IV, Chatra in S.T. Case No.48 of 2013, whereby and whereunder, the appellants have been convicted and sentenced to undergo R.I for life along with fine of Rs.10,000/- for the offence under Section 364-A of the IPC and in case of default of payment of fine, they have further been directed to undergo imprisonment for nine months.
3. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of prosecution case, as per the written report of the informant, which reads as under:
4. As per the written report of the informant dated 18.07.2012, the prosecution story in brief is that on 14.07.2012 at about 7.30 p.m., the informant was sitting at his shop situated beside Jogiyara road, where three unknown miscreants wearing t-shirt and shirt came and demanded mixture and biscuit which
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With Cr. Appeal(DB)No.1744/2017 was packed by the informant. It is alleged that thereafter two of the miscreants took out pistols and asked him to accompany them since their commander was calling him. All of them proceeded on foot towards the western side, near river Amjhar, where four persons were present. It is alleged that all of them took the informant towards the southern side of the forest and crossed Pratappur Jori road and moved further in southern side of the forest. At about 12.30 in the night, they stopped beneath a tree and at about 5.30 in the morning, they started moving and reached inside the forest at about 2.00 p.m. where they stayed for some time. He has further stated that at about 9.00 p.m., they reached at village Mohanpur and ate rice and vegetable in the house of some unknown person and again came back to the forest. They also took away his MTS mobile bearing No.8434612518. He has stated that they were threatening him that if Rs.10,00,000/- was not given to them as ransom, he would kill him. Further on 17.07.2012 at about 1.30 p.m., they released him stating that they had received the money and threatened not to disclose about these facts either to the police or any other person. The informant travelled about nine kilometers in the forest and arrived at Kunda Chowk, where his family members were waiting. They disclosed that rupees one lakh was given to the kidnappers near a bridge situated at Amauna Road. The amount of Rs.98,000/- consisted of Rs.500 currency notes and remaining currency notes were of Rs.1,000/- denomination each.
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5. The informant has further alleged that his sister Anita Devi was employed as para teacher in Primary School, Dhimdabar, where she was constructing the School building from the government fund allotted for the purpose. One Arun Ganjhu resident of Dhimdabar had demanded Rs.100,000/- which was refused, upon which, he had threatened that any how he would extort Rs.100,000/- from him. The informant has given detail description of apparel and physique of the accused persons and claimed that he could identify them when they are made to appear before him. He has stated that due to the aforesaid incident, he was mentally disturbed and therefore, could not lodge the case within time.
6. On the basis of written report of informant, Aashish Kr. Gupta, FIR was registered and investigation started, upon completion investigation, charge-sheet was submitted by the police against the accused persons and accordingly the learned A.C.J.M., Chatra took cognizance of the offence punishable under section 364(A) of IPC and committed the case record to the court of sessions.
7. Upon appearance of the accused persons, charge under Section 364(A) of the IPC was framed on 05.08.2013 to which, they pleaded not guilty and claimed to be tried.
8. In course of trial, the prosecution has examined altogether 11 witnesses i.e., P.W.1-Aashish Kr. Gupta (Informant), P.W.2- Basant Paswan, P.W.3-Basant Bharti @ Basant Bhuian, P.W.4-
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With Cr. Appeal(DB)No.1744/2017 Santosh Kr. Gupta, P.W.5-Gujari Devi, P.W.6-Shanti Devi @ Basanti Devi, P.W.7-Bhola Yadav, P.W.8-Mukesh Kr. Gupta, P.W.9-Prem Chandra Pd. Singh (formal witness), P.W.10- Pramod Ranjan (Investigating Officer) and P.W.11-Man Singh Mundu (formal witness).
9. The trial Court, after concluding the evidence of prosecution, recorded the statement of the accused persons under Section 313 of the Criminal Procedure Code, in which, accused persons had denied from the prosecution evidence and claimed themselves to be innocent.
10. However, the learned trial court after perusal of record found the charge levelled against the appellants proved. Accordingly, the appellants have been found guilty, as such, convicted and sentenced vide impugned judgment of conviction dated 12.07.2017 and order of sentence dated 15.07.2017, which is the subject matter of instant appeals. Grounds on behalf of the appellants
11. Learned counsel appearing for the appellants, in both the appeals, has taken the following grounds by assailing the impugned judgment of conviction and order of sentence: -
(I) It cannot be a case to have substance of Section 364-A of the I.P.C., since as per the ingredients of Section 364-A, the fact is required to be proved regarding the demand of ransom with threatening to death. But if the testimony of the entire witnesses will be taken together, the
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(II) The conviction is based upon the Test Identification Parade (TIP) but the same cannot be said to be conclusive proved to convict the appellants, since, it has come in the testimony of the victim, i.e., P.W.1, who has deposed that before TIP, the photo of accused/appellants were published in the daily newspaper and hence, the moment the same was published in the daily newspaper, the very reliability of the TIP will vitiate and as such, the same cannot be said to be a basis of conviction. Further, TIP was conducted after inordinate delay of about three months and as such, it has no legal value in the eye of law. (III) So far as the recovery of the note is concerned, the same also cannot be said to be substantiated if the testimony of P.W.2, will be taken into consideration, who even though, is the seizure witness but not proved the recovered note.
(IV) The prosecution is miserably failed to establish the alleged case, since, the P.W.10, who is the Investigating Officer, has specifically deposed at paragraph-8 that he has not recovered any money which was given by the victim to the appellants, rather, the reference of the notes as per the denomination along with its number, had been
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(VI) The very trustworthiness of the prosecution version is also very doubtful on the ground that the occurrence said to have committed on 14.07.2012, but the information for the first time was given to the police on 18.07.2012 and thereafter, the FIR was instituted.
The question, therefore, arises that if a person is missing from the house then whether the conduct of the family members will be said to be practical in not lodging a missing report before the concerned Police Station for four days, rather, when the victim has returned back to his house, then only the FIR was instituted, as such, the case of prosecution became doubtful.
(VII) The material witnesses have become hostile. (VIII) The statement recorded under Section 164 of the Cr.P.C. before the Magistrate but the concerned Magistrate has not been examined and hence, the very reliability of the statement made under Section 164 of the Cr.P.C., is also doubtful.
12. Learned counsel for the appellants, in both the appeals on the aforesaid premise, have submitted that the impugned judgment of conviction/sentence suffers from patent illegality and hence, it is not sustainable in the eye of law. Grounds on behalf of the respondent-State
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13. Per Contra, Mrs. Vandana Bharti, learned A.P.P and Mr. Vishwanath Roy, learned Spl. P.P. appearing for the respondent- State have defended the impugned judgment of conviction/sentence by taking the following grounds: -
(I) All the witnesses have supported the prosecution version and the victim has also substantiated the prosecution version by identifying the names of these two appellants.
(ii) The money, which was sent by way of ransom, was subsequently been recovered which was matched with the number along with the denomination and hence, the chain is complete, so far as the recovery and kidnapping are concerned.
14. Learned State Counsel, based upon the aforesaid grounds, has submitted that the instant appeals lack merit and as such, the same are fit to be dismissed.
15. We have heard learned counsel for the parties, gone across the finding recorded by learned trial Court in the impugned judgment and the testimony of witnesses along with other documents as available in the lower court records. Analysis
16. This Court, in order to appreciate the aforesaid grounds and after going through the material available on record, deems it fit and proper first to refer the testimony of prosecution witnesses.
17. Ashish Kr. Gupta, the informant has been examined as P.W.1 and has deposed that the occurrence took place on
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With Cr. Appeal(DB)No.1744/2017 14.07.2012 at about 7.30 p.m. when he was at his Kirana shop (Grocery Shop), where three unknown miscreants came and asked him to pack some mixture and biscuit. Out of three, two persons took out pistols and rested it on his chest and asked him to accompany them. When they reached near river Amjhar, he saw four persons standing there from before and all the seven persons made him to move. Three persons were treading along with him and remaining four persons were moving ahead of him keeping some distance. They crossed the village Gangpur on foot and entered Dhimdabar forest and they kept him there till 12.30 a.m. On the following morning at about 5.30 a.m., five miscreants again started moving with him. Three persons treaded alongside him and the remaining two persons were moving ahead keeping some distance from him. At about 2.00 p.m., they stopped in the forest and the three miscreants asked him to call to his family and bring Rs.10,00,000/- as ransom. He has stated that they had taken his MTS Mobile No.8424612518 from him at the shop itself. They threatened him that he will be released only if he brings rupees ten lacs, otherwise, he would be killed.
18. He has further deposed that they reached Mohanpur village and at about 9:00 p.m., they gave him something to eat. He slept there for the whole night and on the following morning at about 4.00 a.m., they again retreated to the forest and kept him there for about two days. On 17.07.2012, the five miscreants
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19. The informant somehow reached at Kunda Chowk where his family members were waiting for him and he came back home along with them. He has stated that his family members told him that they had given one lakh rupees to two accused persons near a bridge situated at Kunda Amauna road on the direction of kidnappers. He has stated that on 18.07.2012, he had registered a case with the police station and clarified that on 17.07.2012 he was badly scared, therefore, did not inform the police. His statement is that in the course of Test Identification Parade conducted at Sub-jail Chatra, he had identified three accused persons out of four. He has stated that all the three accused persons who were identified by him in T.I.P were present in the court at the time of his giving evidence. Subsequently, he came to know their names who were Arun Ganjhu, Rajendra Ganjhu and Mahendra Bhuian. The aforesaid accused were produced in the court from judicial custody which were identified by the informant/victim, however he has failed to identify the accused Samsad Ansari.
20. He has stated that rupees Nine thousand was recovered from the possession of accused persons which was given to them in ransom and stated that the serial number of the currency note was noted down before handing it over to the accused
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With Cr. Appeal(DB)No.1744/2017 persons. The currency notes were tallied and identified by them at Simaria Police Station. Accordingly, a seizure list of the seized currency notes was prepared by Pramod Ranjan, Officer In- charge of Pratappur P.S., on which he, Mukesh Kr. Gupta and Basant Paswan had put their signature which has been marked as Ext. 1. He has proved the written report marked as Ext. 2.
21. He has stated that he had neither raised alarm while crossing the village Gangpur which consisted of three to four houses, nor informed regarding his abduction to any person in village Mohanpur. He was not able to give name of the house owner where he was kept in the night.
22. At para-9, he has stated that out of three identified persons, he knew two of them, who were Arun Ganjhu and Rajendra Ganjhu. He has admitted that the aforesaid two accused persons were maintaining a distance from him during the course of his abduction and did not come forward.
23. At para-11 of his deposition, he has stated the names of aforesaid accused persons had appeared in the newspaper but without their photographs and denied the suggestion of defence that he was concealing the fact that their photographs and name both were published in the newspaper. He has admitted that the payment of ransom amount was not made to the accused persons in his presence. At para-18, he has stated that when the accused had arrived at his shop, no other customer was present there and at para-19, he has stated that he had not seen the
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24. Basant Paswan, Basant Bharti @ Basant Bhuian, Gujari Devi, Shanti Devi @ Basanti Devi, Bhola Yadav and Mukesh Kumar Gupta have been examined as P.W.2, P.W.3, P.W.5, P.W.6, P.W.7 and P.W.8 respectively and they have been declared hostile.
25. Santosh Kumar Gupta (brother of the victim) has been examined as P.W.4 and has deposed that the occurrence took place in the evening of 14.07.2012. At that time, he was returning from Chatra by Bolero vehicle bearing Registration No. JH-02U/6685 and reached at Jori where Rajendra Paswan called him up and informed that his brother Ashish Kr. Gupta was abducted from the grocery shop situated at Yogiyara. He reached home and from there went to the house of Arun Ganjhu situated at village Dhimdabar, where his wife and mother informed that Rajendra Ganjhu along with 4-5 persons had reached to home and Arun Ganjhu along with others went out for some place which was not within their knowledge. He has stated that on 15.07.2012 in the morning, the miscreants called him up from M.T.S. cell phone of his brother and demanded Rs.
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With Cr. Appeal(DB)No.1744/2017 100,000/- as ransom at Lawalong. He has further stated they had arranged the money and he left the house for Lawalong on his Bolero but stayed at Bagara and on the following morning, he went to Lawalong but none came to take the money. Again on 17.07.2012, he was asked to reach Kunda and when he reached there, he was asked to reach Pratappur from where he was redirected for Kunda. He was called near the bridge situated at Kunda Amona road and when he reached there, he received an instruction on his cell phone to leave the money, i.e. Rs. 100,000/- near the bridge.
26. He has further deposed that two persons riding on a Pulsar motorcycle came, lifted the money and proceeded towards Lawalong.
27. On that very day, his brother was found in Kunda at about 3.30 p.m. who was brought home by him. He has stated that out of Rs.100,000/-, ninety-eight thousand rupees consisted of Rs.500/- currency notes and remaining two thousand rupees were in denomination of Rs.1000/-. Prior to handing over the currency notes, he had noted the serial numbers appearing on the currency notes. On 18.07.2012, his brother Ashish Kr. Gupta had lodged a case with the police station. They had also gone to the house of Arun Ganjhu and Rajendra Ganjhu but they were not found there. He has admitted that his sister Anita Devi was a Para Teacher in Dhimdabar School who was constructing the building of the school, for which, Arun and Rajendra had
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28. He has identified the accused Rajendra Ganjhu and Mahendra Bhuian present in the court and admitted that he could also identify the accused Arun Ganjhu but apart from them, he was not able to identify the other accused persons.
29. In his cross-examination, he has deposed that he did not recognise Arun Ganjhu. He has denied the suggestion of defence since his sister Anita Devi was not teaching properly in the school and therefore, Arun Ganjhu very often raised objection due to which he was falsely implicated in this case. He has admitted that prior to the occurrence he did not recognize Mahendra Bhuian who was identified by his brother and he could identify him when he came to the court for giving evidence. The witness has identified Mahendra Bhuian in the court.
30. His further denial is that in the statement made before the police, he had stated that Rajendra Ganjhu was also there along with 4-5 guests and further denied that in his presence, they went away with the money on a Pulsar motorcycle. He has lastly denied the suggestion of defence that at the instance of his brother he had identified Mahendra Bhuian.
31. Prem Chandra Pd. Singh has been examined as P.W.9, who is the retired Assistant of Sub-jail, Chatra and has deposed
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With Cr. Appeal(DB)No.1744/2017 that on 26.10.2012, he was posted as an Assistant at Sub-jail Chatra where the accused persons were put to Test Identification Parade and Sri Tarun Kumar the then Judicial Magistrate had conducted T.I.P. and he had put signature on the T.I.P. and marked as Ext. 3.
32. In his cross-examination, he has stated that he had no personal knowledge about the queue formed for the purpose of T.I.P. which was formed by the Hawaldar and admitted that he was assigned for the work concerning the Sub- jail.
33. Pramod Ranjan, the Investigating Officer has been examined as P.W.10. In his examination-in-chief, he has stated that on 18.07.2012, he took charge of investigation of Pratappur P.S. Case No. 49/2012 when he was posted as Officer In-charge there. On 14.07.2012 at about 7.50 p.m., he received information that the nephew of Madho Sao of village Jogiara had been abducted from the shop by certain miscreants and he was taken towards Salkhua Jori. Accordingly, he registered a Sanha Entry No.242/2012 and informed to his superior police officer. At about 8.30 p.m., he verified the aforesaid information and was told that at about 7.30 p.m., when it was raining Ashish Kumar was at his shop where three persons reached for purchasing biscuit etc. and with the force of weapon, they abducted him. Some miscreants were standing away at a little distance. The miscreants were wearing panther coloured full pant and were
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34. On the basis of written report of the informant Ashish Kr. Gupta, Pratappur P.S. Case No. 49/2012 dated 18.07.2012 was registered at about 11.15 a.m. and he proceeded for the place of occurrence along with Ashish Kr. Gupta situated at village Jogiyara to his shop and reached there about 11.30 and recorded his statement, in which, he has supported the facts of the case. He inspected the place of occurrence which was the shop of the informant and had described its boundary. He had also prepared a map of the place of occurrence and recorded the statement of witnesses, who had supported the prosecution case.
35. He has further stated that on 24.07.2012 at about 10.15 a.m., Ashish Pd. Gupta along with co-villager Basant Paswan appeared at the police station and produced serial number of currency notes of 500 rupees denomination in total 120 in numbers which has been mentioned by him in the production- cum-seizure list marked as Ext. 1. Basant Paswan, Ashish Pd. Gupta and Mukesh Kr. Gupta had also put their signature on the seizure list. On 27.07.2012, the accused Arun Ganjhu, Mahendra Bhuian and Samsad Ansari were arrested by Officer In-charge of Simaria P.S. along with arms and ammunitions, currency notes, mobile phone and Sim Cards, who had confessed about the abduction of Ashish Pd. Gupta.
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36. On the basis of their confessional statements, he independently recorded the statement of accused persons where all the three, namely, Arun Ganjhu, Rajendra Bhuian and Samsad Ansari had confessed to have received money for releasing Ashish Pd. Gupta and certain currency notes were seized from their possession. They had also confessed regarding the recovery of arms and ammunitions which were used in the abduction of the victim.
37. The Investigating Officer obtained the Tower Location of the calls made from the cell phone of informant to the cell phones of accused persons including other cell phones. They were arrested along with the arms, uniforms, cell phones, sim cards and currency notes used in the occurrence. The seized materials were subjected to Test Identification Parade where they were identified by the informant Ashish Pd. Gupta and Basant Paswan. Accordingly, after having collected sufficient material, the accused Rajendra Ganjhu was arrested. After the arrest, he had admitted his guilt and stated that after the abduction, the victim was secretly kept in Kunda P.S. area and after receiving the ransom amount, he was released. His father statement is that the accused persons, Mahendra Bhulan, Samsad Ansari and Arun Ganjhu who were remanded to judicial custody in connection with Simaria P.S. Case No. 37/2012, were also remanded in this case and were subjected to test
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38. The memo of TIP has been marked as Ext.4 and the T.I.P. form used for identification of seized material was marked as Ext. 4/1. The formal FIR bearing his writing and signature, has been marked as Ext. 5. He has completed investigation and submitted charge-sheet against Rajendra Ganjhu, Arun Ganjhu, Samsad Ansari and Mahendra Bhuian under Section 364(A) of the IPC.
39. In cross-examination on behalf of Mahendra Bhuian, he has stated that on 15.07.2012 at about 1.00 p.m. for the first time information regarding abduction of victim Aashish Kr. Gupta was given by his family members and accordingly, a Sanha was registered in the police station. His family members had disclosed that they had tried at their own level to secure the release of the victim. He has stated that the information was given orally and for that, he had not registered any fardbeyan. He has admitted that the occurrence took place on 14.07.2012 but the FIR was registered on 18.07.2012 on the basis of written report of the informant victim but he had already received the information about the occurrence on 14.07.2012 itself. He has further stated that apart from apprehending Rajendra Ganjhu, he had neither arrested any other accused nor recorded the confessional statement of Mahendra Bhuian. No material used in committing the crime was recovered or seized from Mahendra
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40. Further, at para-9, he has stated that the informant had brought the rough paper giving detail of the currency notes which was reduced to writing by him but he had not prepared any seizure list of the aforesaid rough paper. He has admitted that the seized material of this case was not produced by him in the court and the same were not present before him and lastly denied the suggestion of defence that the allegation against the accused Mahendra Bhuian was without any foundation and he has wrongly been made accused in this case.
41. In cross-examination on behalf of Rajendra Ganjhu, he has stated that Rajendra Ganjhu along with his father Chhathu Ganjhu appeared in the police station where the accused was arrested. The confessional statement of Rajendra Ganjhu was recorded by him on 30.07.2012. He has admitted that after the confessional statements given by Rajendra Ganjhu, no material was seized from his possession in connection with Simaria P.S. Case No. 37/2012 and Pratappur P.S. Case No. 49/2012.
42. Man Singh Munda has been examined as P.W.11, who has produced the material seized in the case of Simaria P.S. Case No.37 of 2012 dated 27.07.2012. On his identification, two cell phones and sim cards were marked as material Ext. I, 1/1 and Ext. II, II/1. Further, five live cartridges were marked as
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With Cr. Appeal(DB)No.1744/2017 material Ext. III to III/4 and three pistols were marked as Ext. IV, IV/1 and IV/2. All the materials exhibits were kept in a red coloured sealed bag on which Malkhana Register Sl. No. 492 and M.R. No. 16/12 was written bearing signature of Officer In- charge Doman Rajak. He has further identified three pages of M.R. Register marked as Ext. 6, 6/1 and 6/2.
43. In his cross-examination, he has stated that on one of the seized pistol, the name of Mahendra Bhuian written on a paper, was affixed bearing signature of B.D.O. dated 24.09.2011. However, the case number and the person who had seized it, was not mentioned on the paper. He has admitted that the articles produced by him from the bag were not sealed. The material exhibits were neither seized in front of him nor kept in the malkhana in his presence.
44. He has admitted that there was no seal cover or name of the seizing officer over the cell phone produced in the court and admitted further, that it could not be gathered by looking at the material produced that in which case, they were seized.
45. This Court, on consideration of the testimonies of the witnesses and for the purpose of consideration of the grounds taken on behalf of the parties, needs to refer herein the ingredients of Section 364-A of the IPC along with Sections 361, 362, 363 and 364 of the IPC as also along with the interpretation of these penal offences by the Hon'ble Apex Court in the various judgments.
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46. At this juncture we deem it appropriate first to answer the point for consideration in these appeals as to whether the facts, in the case, attract the offence under Section 364-A IPC and if the answer is in the negative, would it be just and proper to modify the conviction to a sentence under Section 363 IPC.
47. To put the matter in perspective, the provisions of Section 361 read with Sections 362, 363, 364 and 364-A IPC ought to be compared. The said provisions read as under:
"Section 361. Kidnapping from lawful guardianship. --Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation. --The words "lawful guardian" in this section includes any person lawfully entrusted with the care or custody of such minor or other person.
Exception. --This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. Section 362. Abduction- Whoever by force compels, or by any deceitful means induces, any
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With Cr. Appeal(DB)No.1744/2017 person to go from any place, is said to abduct that person.
Section 363. Punishment 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 abducting 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. Section 364-A. Kidnapping for ransom, etc.-- Whoever kidnaps or abducts any person or keeps a person 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 inter-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."
48. Section 361 of Indian Penal Code deals with "Kidnapping from lawful guardianship" wherein it is stipulated that Whoever takes or entices, any minor male under sixteen years of age or female under eighteen years of age, or any person of unsound
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"Lawful guardian" in this section means any person who lawfully entrusted with the care or custody of such minor or other person.
49. Abduction' is defined under Section 362 of the IPC wherein it is stipulated that if anyone by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. Thus, the essential ingredients to constitute the offence of abduction is use of force to compel any person or induces any person by deceitful means to move him from one place to another place.
50. While abduction simpliciter may not technically be an offence under the IPC, it becomes a punishable offence when it is combined with another act. For example, abduction in order to commit murder is an offence under Section 364 IPC. So is abduction an offence if it is done with an intent to secretly or wrongfully confine a person (Section 365, IPC), or when it is done to compel a woman for marriage etc. (Section 366, IPC).
51. We note that Section 363 IPC punishes the act of kidnapping and Section 364 thereof punishes the offence of kidnapping or abduction of a person in order to murder him. Section 364A is an offence where kidnapping or abduction is made and a person is put to death or hurt; or a person is
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52. Since, in the instant case we are concern with the alleged offence under Section 364A IPC, hence at this juncture it will be profitable to discuss the core and applicability of section 364 A of the IPC at length.
53. Section 364A of the IPC was inserted in the Penal Code, 1860 by an Act of Parliament (Act No. 42 of 1993 with effect from 22nd May, 1993). The Law Commission of India in its 42nd Report in 1971 had recommended insertion of Section 364A in IPC, though it was ultimately incorporated in the year 1993.
54. It is pertinent to mention here that the Hon'ble Apex Court while referring the importance of section 364A of IPC in the case of Vikram Singh vs. Union of India, (2015) 9 SCC 502 has observed as under:
"53. Applying the above to the case at hand, we find that the need to bring in Section 364-A IPC arose initially because of the increasing incidence of kidnapping and abduction for ransom. This is evident from the recommendations made by the Law Commission to which we have made reference in the earlier part of this judgment. While those recommendations were pending with the Government, the spectre of terrorism started raising its head threatening not only the security and safety of the citizens but the very sovereignty and integrity
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With Cr. Appeal(DB)No.1744/2017 of the country, calling for adequate measures to curb what has the potential of destabilising any country. With terrorism assuming international dimensions, the need to further amend the law arose, resulting in the amendment to Section 364- A IPC, in the year 1994. The gradual growth of the challenges posed by kidnapping and abductions for ransom, not only by ordinary criminals for monetary gain or as an organised activity for economic gains but by terrorist organisations is what necessitated the incorporation of Section 364-A IPC and a stringent punishment for those indulging in such activities."
55. Thus, it is clear that Section 364A IPC does not merely cover acts of terrorism against the Government or Foreign State but it also covers cases where the demand of ransom is made not as a part of a terrorist act but for monetary gains for a private individual.
56. To attract section 364-A of the Penal Code, 1860, a person has to be kept in detention and there should be threat to cause death or hurt to such person, or by the conduct of the kidnapper there should be reasonable apprehension that kidnapped person may be put to death or hurt in order to compel the Government or any person to do or abstain from any doing any act or to pay ransom.
57. The first essential condition as incorporated in Section 364-A is 'whoever kidnaps or abducts any person or keeps a
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With Cr. Appeal(DB)No.1744/2017 person in detention after such kidnapping or abduction'. The second condition begins with conjunction "and".
58. The second condition has also two parts i.e. (a) threatens to cause death or hurt to such person or (b) by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt. Either part of above condition, if fulfilled, shall fulfil the second condition for offence.
59. The third condition begins with the word "or" i.e. 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 from doing any act or to pay a ransom.
60. Thus, for covering an offence under Section 364-A, apart from fulfilment of first condition, the second condition i.e. 'and threatens to cause death or hurt to such person' also needs to be proved in case the case is not covered by subsequent clauses joined by "or". The word "and" is used as conjunction. The use of word "or" is clearly distinctive and both the words have been used for different purpose and object.
61. After noticing the statutory provision of Section 364-A we conclude that the essential ingredients to convict an accused under Section 364-A which are required to be proved by the prosecution are as follows:
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(i) Kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction; and
(ii) 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;
(iii) causes hurt or death to such person in order to compel the Government or any foreign State or any Governmental organisation or any other person to do or abstain from doing any act or to pay a ransom.
62. Thus, after establishing first condition, one more condition has to be fulfilled since after first condition, word used is "and". Thus, in addition to first condition either Condition (ii) or (iii) has to be proved, failing which conviction under Section 364-A cannot be sustained.
63. Before adverting in to the facts of the instant case and appraising the judgments impugned, we deem it appropriate to refer some judicial pronouncement also as rendered by the Hon'ble Apex Court on the issue of applicability of section 364 A of IPC.
64. The Hon'ble Apex Court in the case of Lohit Kaushal vs. State of Haryana, (2009) 17 SCC 106, has observed as under:
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With Cr. Appeal(DB)No.1744/2017 "15. ... It is true that kidnapping as understood under Section 364-AIPC is a truly reprehensible crime and when a helpless child is kidnapped for ransom and that too by close relatives, the incident becomes all the more unacceptable. The very gravity of the crime and the abhorrence which it creates in the mind of the court are, however, factors which also tend to militate against the fair trial of an accused in such cases. A court must, therefore, guard against the possibility of being influenced in its judgments by sentiment rather than by objectivity and judicial considerations while evaluating the evidence."
65. In Anil vs. Admn. of Daman & Diu, Daman, reported in (2006) 13 SCC 36, the pertinent observations were made by the Hon'ble Apex Court as regards the ingredients for commission of offence under Sections 364 and 364-A. The relevant passages which can be culled out from the said judgment of the Hon'ble Supreme Court are as under:
"55. The ingredients for commission of offence under Sections 364 and 364-A are different. Whereas the intention to kidnap in order that he may be murdered or may be so disposed of as to be put in danger as murder satisfies the requirements of Section 364 of the Penal Code, for obtaining a conviction for commission of an offence under Section 364-A thereof it is necessary to prove that not only such kidnapping or abetment has taken place but 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
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With Cr. Appeal(DB)No.1744/2017 person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom."
66. In Vishwanath Gupta v. State of Uttaranchal reported in (2007) 11 SCC 633, it was observed by the Hon'ble Apex Court 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 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. Any of the three ingredients can take place at one place or at different places."
67. In Vikram Singh vs. Union of India (supra), it was observed as under:-
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With Cr. Appeal(DB)No.1744/2017 "25. ... Section 364-AIPC has three distinct components viz. (i) the person concerned kidnaps or abducts or keeps the victim in detention after kidnapping or abduction; (ii) threatens to cause death or hurt or causes apprehension of death or hurt or actually hurts or causes death; and (iii) the kidnapping, abduction or detention and the threats of death or hurt, apprehension for such death or hurt or actual death or hurt is caused to coerce the person concerned or someone else to do something or to forbear from doing something or to pay ransom. These ingredients are, in our opinion, distinctly different from the offence of extortion under Section 383 IPC. The deficiency in the existing legal framework was noticed by the Law Commission and a separate provision in the form of Section 364-AIPC proposed for incorporation to cover the ransom situations embodying the ingredients mentioned above."
68. Thus, the necessary ingredients which the prosecution must prove, beyond a reasonable doubt, before the Court are not only an act of kidnapping or abduction but thereafter the demand of ransom, coupled with the threat to life of a person who has been kidnapped or abducted, must be there. Further reference in this regard may be taken from the judgment rendered by the Hon'ble Apex Court in the case of Ravi Dhingra vs. State of Haryana, (2023) 6 SCC 76.
69. This Court, therefore, is of the view that ingredients to attract the offence under Section 364-A of the IPC is that three
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70. Now coming back to the facts of the instant case it is evident after going through the testimony of witnesses that P.W.1 has deposed that if the ransom money will not be given, he will be killed. But, it is lacking in the testimony that to whom such instruction was given. However, it has come in the testimony of P.W.4 that such instruction was given through the mobile phone. The number of mobile phone has also been referred but the question is that merely by making reference of mobile phone, can it be said to be conclusive evidence, so as to come to the conclusion that the demand of ransom was made.
71. It is the admitted position herein on the basis of the fact that none of the witnesses have stated even the Investigating Officer has not deposed that any investigation towards the connectivity on the basis of the mobile numbers has been conducted. Therefore, when the investigation on this ground has not been conducted then how the conclusion has come that the demand of ransom was made, failing which, the person concerned will be killed which is the main ingredients to attract Section 364-A of the IPC.
72. So far as the recovery of money is concerned even taking into consideration the aforesaid fact, this Court is of the view after going through the testimony of the Investigating Officer as under paragraph-8 & 9 that he has not taken note of the details
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With Cr. Appeal(DB)No.1744/2017 of the currency note, rather, the details of the currency was given to him by the informant in the rough paper and the said rough paper was made as a seizure list.
73. It has further been deposed by him that the chart of the identification of the articles and the accused had not been made in his presence.
74. Further, the ground as has been taken that the TIP was conducted belatedly almost after three months of arrest of accused persons and hence, it cannot be said to be reliable piece of evidence, therefore, no importance could be attached to the identification of the accused person by the informant/victim in TIP.
75. This Court finds substance in the said argument, based upon the pronouncement of the Hon'ble Apex Court, as has been held in the case State of U.P. vs. Wasif Haider and others, (2019) 2 SCC 303, wherein, at paragraphs-14, 15 it has been held as under:-
"14. ---- ---- Moreover, there existed an inordinate delay of 55 days in conducting the TIP of Accused 1 and 2. Although, the involvement of Accused 3 and 4 was brought to light on 3-8-2001 itself, the prosecution did not take any effort to arrest or interrogate them for 6 weeks. But no reasonable explanation was provided for the aforesaid inordinate delay.
15. Furthermore, no documentary evidence has been provided to prove that the identity of the accused was kept concealed. On the contrary, DW 3, Mohd. Shamim Siddique, Record Keeper in the Police Office stated that
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With Cr. Appeal(DB)No.1744/2017 the general diary does not mention that Accused 2- respondent Mumtaz alias Maulana was kept baparda. The defence also pleaded that, the aforesaid inordinate delay was used by the prosecution witnesses to see the respondent-accused at their homes or places of work to mark them carefully for the subsequent identification. Additionally, Accused 1-respondent Wasif Haider, in his statement under Section 313 CrPC went to the extent of saying that, prior to the TIP he was shown to the witnesses and his photographs and videotapes were prepared. In Mulla v. State of U.P. [Mulla v. State of U.P., (2010) 3 SCC 508 : (2010) 2 SCC (Cri) 1150] , SCC para 55, this Court laid down that a TIP has to be conducted timely, if not, then the delay has to be explained and such delay should not cause exposure of the accused. However, in the case at hand, not only there was a delay in conducting the TIP, but no explanation for the same has been forthcoming from the prosecution. This creates a considerable doubt about the genuineness of the TIP."
76. Likewise, the Hon'ble Apex Court in the case of Gireesan Nair and Others vs. State of Kerala, (2023) 1 SCC 180, wherein, at paragraphs-50 to 53, it has been held as under:-
"50. Undue delay in conducting a TIP has a serious bearing on the credibility of the identification process. Though there is no fixed timeline within which the TIP must be conducted and the consequence of the delay would depend upon the facts and circumstances of the case [Acharaparambath Pradeepan v. State of Kerala, (2006) 13 SCC 643 : (2008) 1 SCC (Cri) 241] , it is imperative to hold the TIP at the earliest. The possibility of the TIP witnesses seeing the accused is sufficient to cast doubt about their credibility. The following decisions of this Court on the consequence of delay in conducting TIP have emphasised that the possibility of
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With Cr. Appeal(DB)No.1744/2017 witnesses seeing the accused by itself can be a decisive factor for rejecting the TIP.
51. In Suresh Chandra Bahri v. State of Bihar [Suresh Chandra Bahri v. State of Bihar, 1995 Supp (1) SCC 80 :
1995 SCC (Cri) 60] , it was held that : (SCC p. 126, para 78) "78. ... it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards were effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. ... It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution. But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of a TI parade."
52. In Budhsen v. State of U.P. [Budhsen v. State of U.P., (1970) 2 SCC 128 : 1970 SCC (Cri) 343] , this Court set aside the conviction imposed on the appellant therein, on the ground that no conviction can be based by solely relying on the identification made in a TIP. While holding that a 14- day delay by itself in conducting the TIP may not cause prejudice to the accused, it observed that there is a high chance of the accused being seen by the identifying witnesses outside the jail premises. In Subash v. State of U.P. [Subash v. State of U.P., (1987) 3 SCC 331 : 1987 SCC (Cri) 573] , this Court acquitted an accused on the ground that the TIP was held three weeks after the arrest was made. This Court suspected that the delay in holding the TIP could have enabled the identifying witnesses to see the accused therein in the police lock-up or in the jail premises.
53. In State of A.P. v. M.V. Ramana Reddy [State of A.P. v. M.V. Ramana Reddy, (1991) 4 SCC 536 : 1991 SCC (Cri) 1018] , this Court acquitted Respondents 2 and 3 therein on the ground that there was a delay of 10 days in conducting the TIP, and in those 10 days, there was a high
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With Cr. Appeal(DB)No.1744/2017 likelihood of their photographs being shown to the witnesses. In Rajesh Govind Jagesha v. State of Maharashtra [Rajesh Govind Jagesha v. State of Maharashtra, (1999) 8 SCC 428 : 1999 SCC (Cri) 1452] , a delay of about one month was viewed seriously by this Court since there was a possibility of the accused being shown to the witnesses."
77. This Court, therefore, on the basis of the aforesaid settled position of law that the TIP was conducted belatedly, hence, the same cannot be said to be a trustworthy piece of evidence to implicate. Even otherwise also, the identification of the accused person, cannot be said to be sole piece of evidence to convict the accused unless there is to be a corroborative piece of evidence to establish the charge which is lacking in the present case as per the discussion made hereinabove.
78. Further, the ground as has been taken that the occurrence said to have committed on 14.07.2012 but very surprisingly, the FIR was lodged on 18.07.2012, i.e., after lapse of four days and the delay in lodging the case has not been properly explained which creates serious doubt in the prosecution story.
79. In the aforesaid context this Courts thinks fit to consider whether there was any delay in lodging the FIR which was fatal for the prosecution. It is a settled principle of law that delay in lodging FIR by itself cannot be a ground to doubt the prosecution case at the outset and discard it as a whole. The delay in lodging FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it
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With Cr. Appeal(DB)No.1744/2017 is satisfactory. It cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the FIR.
80. In the light of totality of the evidence, the Court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. It is a matter of appreciation of evidence as a whole. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct evidence there may be circumstances appearing on record which provide a reasonable explanation for the delay and if such explanation is available, delay in lodging FIR should be ignored in a given facts and circumstances of a case if there is no possibility of embellishment in the prosecution version on account of such delay.
81. In the instant case from perusal of testimony of the informant victim wherein it is stated that alleged occurrence was happened on 14.07.2012. He was released by the kidnappers on 17.07.2012. Due to fear, he could not report this incident to police on that day. The written report was furnished on 18.07.2012. But herein, the question is that can it be said to be a practical approach of the family members if kidnapping took place from the Kirana Shop (Grocery Shop) and the family members has not registered the FIR immediately.
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82. This Court, therefore, is of the view that conduct of the family members including the informant is quite unnatural which also creates doubt upon the prosecution story.
83. Further, the statement of the victim although was recorded under Section 164 Cr.P.C. but the Magistrate before whom the statement was recorded was not examined, hence, the inference cannot be drawn from the statement recorded under Section 164 of the Cr.P.C.
84. We, on the entirety of the facts and circumstances and as per the discussion made hereinabove, are of the view that the impugned judgment of conviction/sentence, requires interference.
85. Accordingly, the impugned judgment of conviction dated 12.07.2017 and order of sentence dated 15.07.2017 passed by the learned Addl. Sessions Judge-IV, Chatra in S.T. Case No.48 of 2013, are hereby quashed and set aside.
86. In the result, the instant appeals stand allowed.
87. Pending Interlocutory Applications(s), if any, stands disposed of.
88. In consequence thereof, the appellant, namely, Mahendra Bhuian [In Cr. Appeal (DB) No.1768 of 2017] and appellant, namely, Rajendra Ganjhu [In Cr. Appeal (DB) No.1744 of 2017] are discharged from their criminal liability and directed to be released forthwith from judicial custody in connection with S.T. No.48 of 2013, if not required in any other cases.
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89. Let this order/judgment be communicated forthwith to the Court concerned along with the Lower Court Records.
I Agree (Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.) (Pradeep Kumar Srivastava, J.)
High Court of Jharkhand, Ranchi
Dated: 14th March, 2024.
Rohit/-A.F.R.