Allahabad High Court
Sanjeev Ram vs State Of U.P. on 24 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1225
Author: Umesh Kumar
Bench: Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.47 Reserved on: 04.07.2019 Delivered on : 24 .07.2019 Case :- CRIMINAL APPEAL No. - 2058 of 2013 Appellant :- Sanjeev Ram Respondent :- State Of U.P. Counsel for Appellant :- Rakesh Tripathi-I,Kuldeep Saxena,Rakesh Dubey,Vijit Saxena Counsel for Respondent :- Govt. Advocate Hon'ble Ram Surat Ram (Maurya),J.
Hon'ble Umesh Kumar,J.
(Delivered by Umesh Kumar, J)
1. This appeal has been preferred against the judgment and order of conviction and sentence dated 10.02.2012 passed by Additional Sessions Judge, Court No. 14, Ghaziabad in S.T. No. 162 of 2011 ( State Vs. Sanjeev Ram) under Section 364-A, IPC, police station, Kavi Nagar, Ghaziabad convicting and sentencing the appellant-Sajeev Ram under Section 364-A, IPC for life imprisonment and a fine of Rs. 10,000/- and in default thereof to further undergo 2 years additional imprisonment.
2. Briefly stating the facts of prosecution is that a missing report of victim Ishu Dhama aged about 14 years was registered at police station, Kavi Nagar, Ghaziabad on 9.10.2010 at 17:50 p.m. by informant Anil Dhama son of Mahendra Singh resident of SD-428, Shastri Nagar, Ghaziabad against unknown accused that his son Ishu Dhama has been kidnapped on 8.10.2010 at 6:00 a.m and he could not be traced out. Three days later on 11.10.2010, at about 19.45 hours, this missing report was converted into case Crime No. 123 of 2010 under Section 364 IPC and its entry was made in GD No. 53 at 17.50 hours on 9.10.2010. The report shows that victim- Ishu Dhama son of Anil Dhama went from house to bring milk in the morning at 6.00 hours on 8.10.2010 and did not return to home thereafter. So the said missing report was communicated to the police and subsequently it was converted into case crime as mentioned here in above.
3. The investigation was entrusted to S.I. Ajab Singh. During investigation, it was found that not only victim- Ishu Dhama but also his servant Sajeev Ram (appellant) is also missing. The mobile number of appellant Sajeev Ram was kept under surveillance by the police and his location was found at Paharganj, Delhi. After 3-4 days of the incident, the wife of appellant Sanjeev Ram made a mobile call to Anil Dhama-informant asking him to have conversation with his husband(appellant). The location of said mobile phone was found at Deltonganj, district, Palamu, Jharkhand. On the next day, again (Sonu) wife of appellant called informant and demanded Rs. 50,0000/- (Rs. Fifty lac) for returning his son through husband Sanjeev Ram-appellant. When the location was traced that the call was made from Daltonganj, district, Palamu, Jharkhand, then with the police force, informant went there with the help of local police, the Station House Officer Suresh Kumar and one Sub-Inspector informed that it is a Nexalite area and they all in civil dress reached to the sasural ( in laws home) of appellant-Sanjeev Ram where appellant Sanjeev Ram was present. The police personnel entered into the house and recovered victim- Ishu Dhama and the wife of Sanjeev Ram-appellant. The police took Sanjeev Ram and his wife along with victim-Ishu Dhama to the CJM concerned for getting transit remand and after formalities police personnel along with appellant-Sanjeev Ram and victim Ishu Dhama came back to Police Station Kavi Nagar, Ghaziabad from where his son was given in the custody of informant and accused-Sanjeev Ram was produced before the Court and was sent to jail.
4. During investigation, the Investigation Officer recorded statements of witnesses, prepared necessary police papers and after completion of investigation submitted charge sheet against appellant-Sanjeev Ram under Section 364-A, IPC.
5. Charge under Section 364-A, IPC was framed against the appellant-Sanjeev Ram to which, he denied and claimed to be tried.
6. The prosecution in support of its case has examined P.W.1-Anil Dhama, father of victim. P.W.2 Ishu Dhama-victim, P.W.3 Ajab Singh, I.O., P.W.4 Anil Kumar, Constable who proved chick FIR and GD entries No. 53 and 31 ( Ex.Ka 4 and 5) and P.W.5 Head Constable Ravindra Singh who proved G.D. entry ( Ex.Ka.6)
7. The statement of accused-appellant under Section 313 Cr.P.C. was recorded, he denied the prosecution version and stated that he has been falsely implicated, but he has not adduced any evidence in his defence.
8. We have heard Sri Rakesh Dubey, learned Counsel for the appellant and Sri Rakesh Kumar Mishra, brief holder for the State.
9. Learned Counsel for the appellant argued that conviction of the appellant under Section 364-A, IPC, is bad in law, learned Trial Judge has not properly appreciated the evidence, prosecution story is not supported by independent witness, no call details are available on record to substantiate the factum of demand of ransom by the appellant-accused. Lastly, it has been argued that offence does not travel beyond Section 363 IPC and hence, conviction under Section 364-A, is too severe, harsh and against the evidence available on record.
10. Per contra, learned Counsel appearing on behalf of State supporting the impugned judgment and order argued that conviction and sentence of the accused is in accordance with law, there is no infirmity and the witnesses have supported the prosecution case.
11. P.W.1 Anil Dhama, father of the victim stated that on 9.10.2010, in morning at 5.30 hours when he returned from his duty (Jindal Pipes), he asked about absence of his son at house; his wife told that she was sleeping, and did not know where is her son Ishu Dhama; at that time, his servant Sanjeev Ram(appellant) and his Scooter No. UP-14A-2395 (Honda Eterno) was also not there. He called his relatives and neighbours and then he became unconscious. When he regain consciousness, he was informed that a missing report was given at the police station. At about 3.00 hours, he went to Shakoorpur, the place where appellant-Sanjeev Ram was residing earlier, but he was not found there. The relatives of appellant-Sanjeev Kumar informed that the appellant had committed such crimes earlier and he is a habitual criminal. On the next day i.e. 10.10.2010, he reached police station Kavi Nagar, Ghaziabad at 10.00 hours. Thereafter, the SHO, sent one Sub- Inspector and a Constable with the witness to enquire from the relatives of appellant-Sanjeev Ram. From the STD shop situated in front the place where Sanjeev Ram resided earlier, they got information about Sanjeev Ram appellant. Then they returned back and mobile number was kept on surveillance by the Station House Officer Vijay Kumar. In his cross examination, he stated that he himself has not lodged any report at the police station and the said GD No. 53 at 17.50 hours dated 9/10.10. 2010 was given by some of his relatives; he denied his statement under Section 161 Cr.P.C in that reference. He admitted this fact that his Scooter was recovered from a Petrol Pump at Meerut Road on 17/18th October, 2010. A lengthy question from this witness has been asked that how he went to Daltonganj, district, Jharkhand and how the victim Ishu Dhama was recovered, but on careful scrutiny of his testimony , his statement is reliable and trustworthy to the extent of recovery of his son victim- Ishu Dhama from the possession of accused-Sanjeev Ram. He admitted that wife of accused Sanjeev Ram made telephonic call with him 4-5 times, but he did not remember her telephone number, she demanded rupees fifty lac as ransom and she never demanded two crore. This witness accepted the fact that accused Sanjeev Ram never telephone him. It shows that demand of ransom was not made by the accused-Sanjeev Kumar. He never gave any money to accused-Sajeev Ram for release of his son.
12. P.W.2 Ishu Dhama, victim stated about the fact that at 3.00 hours in the night on 8.8.2010, the appellant Sajeev Ram told him that he was feeling stomach pain and asked him to get medicines; he went with the accused-Sanjeev Ram riding on scooter near Petrol Pump where a Travera Car was standing and a man was sitting in side; the accused told him that he is his friend; in the meantime, they gave water which he consumed and became unconscious and when he regained sense, he found himself in Jharkhand; his hands and legs were tied with rope by Sanjeev Ram. The wife of Sanjeev Ram made telephonic call to his father demanding a sum of rupees two crore as ransom and said that if he will not pay the same, his son would be murdered; appellant-Sanjeev Ram and his wife also asked to say his father to hand over rupees two crore, otherwise, he would be killed. On 17.10.2010, the police rescued him in presence of his father. The witness stated that statement under Section 164 Cr.P.C. was recorded by Magistrate and he admitted his signature on (Ex.Ka.1). In cross examination, he supported the prosecution version and explained.
how he was taken away by appellant-Sanjeev Ram from his house to Jharkhand. He was unconscious till he reached Jharkhand. He came to know that he is in Jharkhand when his father along with police force reached there. He was detained in a hut where, he was all alone. A person was providing food to him once in a day. His hands and legs were tied with a rope and as none was there, he did not raise alarm; when he became conscious, he found himself in a hut. How, he reached there, he does not know. This witness has given complete picture of his kidnapping, how he was rescued by the police and brought to Ghaziabad. On close scrutiny of the testimony of the witness, we are of the view that there is no discrepancy in any sense so as to damage the prosecution case except, factum of demand of ransom. He has stated that earlier, they were demanding two crore rupees and thereafter, they reduced it to rupees fifty lac, which has not corroborated from his statement recorded under Section 161 Cr.P.C.
13. P.W.3, Ajab Singh is the Investigating Officer, P.W.4 Anil Kumar and P.W.5 Ravindra Singh are the police personnel and formal witnesses.
14. The evidence available on record clearly shows that if there was any demand of ransom, that was made by the wife of appellant-Sanjeev Ram as has been admitted by P.W.1 in his statement. Though, P.W.2 in his statement under Section 164 Cr.P.C has stated that appellant-Sanjeev Ram tied his hands and legs with rope; 4-5 persons remained present around him; he specifically stated that the wife of appellant-Sanjeev Ram told his father on telephone to give a sum of rupees two crore, otherwise, he will be murdered; they also asked him to make telephone to his father and to pay aforesaid ransom amount, but he did never said this facts to his father or to any family members on telephone during his detention and this fact is neither established by any evidence nor it has been asserted any where in the statement of P.W.1, hence this fact that P.W.2 was threatened for ransom was never communicated to P.W.1. Moreover, P.W.1 admits that the factum that amount of ransom was never demanded by the appellant-Sanjeev Ram at any stage, hence this fact that kidnapping was made for the purpose of getting ransom is not proved by the prosecution by cogent and reliable evidence against accused.
15. In order to arrive on definite conclusion, we would like to deal with the relevant sections pertaining to the offence in hand. Section 364-A, IPC and 365 IPC reads as under;
364-A- Kidnapping for ransom, etc:- Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatends 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 personal 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.
365: Kidnapping or abducting with intent secretly and wrongfully to confine person- Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
16. To attract the provisions of Section 364-A, IPC, what is required to be proved is (1) that the accused kidnapped or abducted the person (2) kept him under detention after such kidnapping and abduction; and (3) that the kidnapping or abduction was for ransom.
17. While dealing with the ingredients of the aforesaid sections, we also think it proper to deal with the offence under Section 365, IPC relating to kidnapping or abducting with intent secretly and wrongfully to confine person which speaks that whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
18. Here, it is to be noted that the evidence available on record, clearly shows that abductee Ishu Dhama was taken away by accused-Sanjeev Ram from lawful guardianship of his parents. It is also admitted that abductee is aged about 14 years and established by evidence of P.W.2 that he was kept in a hut and his hands and legs were tied with the rope and was wrongfully confined hence commission of offence under Section 365 Cr.P.C is fully established on careful scrutiny of the entire evidence available on record.
19. In the case in hand, factum of demand of ransom from close scrutiny of the evidence available on record is not proved beyond doubt against the appellant-Sanjeev Ram . Moreover, demand of ransom, if any, is accepted, admittedly that was made by the wife of appellant-Sanjeev Ram and not by the appellant-Sanjeev Ram. It is surprising to us that from the evidence of witnesses and statements under Section 161 Cr.P.C, the wife of appellant-Sanjeev Ram, if has made telephonic call for ransom, why, she has not been made accused in the offence by the Investigating Officer of the case inasmuch as if this fact finds mention in the testimonies of witnesses, learned Trial Judge would have summoned her exercising powers under Section 319 Cr.P.C. There is also contradictions in the statements of witnesses and the abductee in respect to amount of ransom, discussed above and thus, factum of demand of ransom, in the facts and circumstances of the present case has not been established by the prosecution beyond doubt.
20. In the present case, evidence showed that the appellant-Sanjeev Ram actively participated in abduction of the victim, confining him wrongfully by keeping in a hut by tying his hands and legs with a rope, but as he himself never made any demand of ransom from any one, he shall not be convicted under Section 364-A, IPC, rather it would be safe and in the interest of justice to convict and punish the appellant-Sanjeev Ram under Section 365 IPC instead of Section 364-A, IPC.
21. Taking cumulative effect of the evidence, as discussed above, the conviction of the appellant under Section 364-A, IPC is modified as conviction under Section 365 IPC. As stated by counsel for appellant that the appellant in the present case is in jail since 17.10.2010. The appeal is partly allowed.
22. Appellant-Sanjeev Ram is convicted under Section 365 IPC instead of Section 364-A, IPC and is sentenced to imprisonment already undergone. The fine is reduced to Rs. 5000/- and in default of payment of fine to further undergo one month imprisonment.
23. The judgment and order impugned in this appeal is modified to the aforesaid extent and the appeal is decided accordingly.
24. Registry is directed to transmit the record of Trial Court for compliance forthwith.
( Umesh Kumar, J) (Ram Surat Ram( Maurya,J)
Order Date :- 24.07.2019
Shahid