Punjab-Haryana High Court
Umesh Kumar vs State Of Punjab on 6 September, 2018
Bench: A. B. Chaudhari, B. S. Walia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-No.357-DB of 2014 (O&M)
DATE OF DECISION : 6th SEPTEMBER, 2018
Umesh Kumar
.... Appellant
Versus
State of Punjab
.... Respondent
CRA-D-No.457-DB of 2014 (O&M)
Karan Gupta & another
.... Appellants
Versus
State of Punjab
.... Respondent
CORAM : HON'BLE MR. JUSTICE A. B. CHAUDHARI
HON'BLE MR. JUSTICE B. S. WALIA
****
Present : Mr. Saurab Arora, Advocate
for the appellant in CRA-D-357-DB-2014.
Ms. Raminder Kaur, Advocate
for the appellants in CRA-D-457-DB-2014.
Ms. Anju Arora, Additional Advocate General, Punjab.
****
A. B. CHAUDHARI, J.
1. Being aggrieved by the judgment dated 29.10.2013 and
order dated 30.10.2013 passed by Additional Sessions Judge, Ludhiana in
Sessions Case No.23123 of 2012 by which the trial Court convicted the
appellants in these two appeals for offences under Section 364-A IPC and
sentenced them to undergo rigorous imprisonment for life and under
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Section 363 IPC they have to undergo rigorous imprisonment for four
years and fine of `10,000/-, the present appeals were filed by them in this
Court.
FACTS:
2. The prosecution case was that the complainant Arjan Singh
has three children with two daughters. His younger daughter aged about
six years was playing outside the house with other children. One
unknown person came there and took his daughter along with him away
and vanished. He carried out the search but to no use and as such made
report to the police station. The police started searching and making
investigation and found that all the three accused persons had connived
with each other and kidnapped the daughter of the complainant and ask
for ransom of `5,00,000/- which was brought down to `3,00,000/- for her
release. The FIR was lodged under Sections 363, 364, 376 & 411 IPC.
After investigation was completed the challan was filed before the trial
Court. The prosecution led its evidence and closed its case while the
defence was that of denial. Defence examined DW-1 Parmesh Kumar
and DW-2Krishan Kumar Gupta and closed its case. The trial Court after
hearing the learned counsel for the parties convicted the appellants as
stated above.
ARGUMENTS:
3. In support of the appeals learned counsel for the appellants
in both these appeals vehemently argued that the prosecution did not
prove its case at least beyond reasonable doubt and therefore, appellants
in both the appeals were require to be acquitted. According to him there
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were inconsistencies in the prosecution evidence and the benefit of doubt
should be given to the appellants. Learned counsel for the appellants
submit that the appellants are poor persons and were involved by the
police in the serious offence only because the appellants were working
with the contractor-complainant who was a labour supplier. They then
submitted that the prosecution did not examine any independent witness
to prove the alleged recovery of money out of the ransom money taken
from the complainant. The learned counsel then submitted that the
prosecution did not prove that the money recovered from the appellants
was the same money that was allegedly paid by way of ransom. The
learned counsel for the appellants then submitted that a false case was
slapped against the appellants and, therefore, the appellants are required
to be acquitted by this Court.
4. Per contra, learned counsel for the State submitted that the
prosecution has proved its case beyond reasonable doubt and there are
eye witnesses to the appellants taking away the daughter of the
complainant with them and thereafter demanded ransom. The counsel
for the State then submitted that immediately the recovery of money was
effected from the appellants that was paid as ransom. The accused
persons were known to the complainant and his brother and, therefore,
the prosecution proved its case so also their identity beyond reasonable
doubt. As to the conviction under Section 364A IPC, the learned counsel
for the State contended that there is evidence of threat being imparted by
the accused persons for demanding ransom after the kidnapping and
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therefore, the conviction under Section 364A IPC is well justified so also
the sentence. She therefore, prayed for dismissal of the appeal.
CONSIDERATION:
5. We have heard learned counsel for the rival parties at length.
We have carefully gone through the entire evidence tendered by the
prosecution before the trial court. Insofar as the aspect of the kidnapping
of the small girl by the appellants, is concerned, we find that there is
sworn testimony of the father of the girl PW-1-Arjan Singh, who deposed
as under in his evidence:
"Nisha Kumari is my second child. On 18.02.2012
(wrongly typed as '24.03.2012') at about 5:00P.M.
she was playing in a field with her friends one
clean shaven person kidnapped her and took her
away along with one more person on one black
motorcycle Pulsar. We conducted the search of
our daughter. Then I was going to inform the
police, the police met me at T-point village
Kanganwal and recorded my statement Ex.PA. I
signed it in Hindi. My signatures is Ex.PA/1.
Police reached at the spot and verified the facts.
On 18.02.2012 I received I received phone call at
10:40 P.M. on my mobile of kidnappers and they
raised the demand of Rs.5.00 Lacs and they told
me that they will inform me about the place where
I will deliver the money or they threatened me and
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stopped me from informing the police. I informed
the police on the same date. On 19.02.2012 I was
present near GLADA ground, police handed over
one bag consisting Rs.3.00 Lacs to me nike was
written on the bag and one symbol of hockey was
knitted with red thread on the bag. Police
instructed me to deliver that bag to the kidnappers.
I started waiting for kidnappers there, two clean
shaven persons called me (sic) by my name who
were on bicycle I went near them and recognized
them those were Anil Kumar @ Kalu S/o Ganor
Paswan who reside near my house and working as
compounder with Dr. J.P. and the other person was
Umesh Kumar S/o Moti Lal who use to visit Anil
Kumar at his clinic. I handed over the bag to them
they instructed me to went back and told me that
after sometime I would get my daughter back and
they will inform me on phone then Anil Kumar
called two another persons as Karan and Ram
chander and told them that they have received the
money. I identified Ram Chander and Karan
Gupta who use to visit the clinic where Anil
Kumar worked, Umesh Kumar was driving the
bicycle and Anil Kumar set on back seat with the
bag. The whole proceedings were done under the
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instructions of police. On next day I received
phone call at about 4:30 P.M. at my mobile from
the phone no.73559-61708 and kidnappers
informed me that my daughter was standing near
railway crossing near Sanatan Dharam Mandir,
Jiwan Nagar Chowk, Ludhiana. I reached there
with police party, many people were gathered
there. I identified my daughter vide memo Ex. PB
and she was handed over to me vide memo Ex.PC.
6. Similar is the evidence of brother of the complainant PW-2-
Surinder Singh and the relevant portion of the evidence is reproduced
below:
"Stated that on 18.02.2012, I was going to meet
my brother Arjun Singh. When I reached near the
house, I saw two persons going on a motorcycle
and my niece Nisha was sitting in between them
and she was crying. I heard her cries. I was not
sure at that time that she was Nisha. I reached the
house of my brother. My brother was searching
for Nisha. I told him that I saw her with two
persons on motorcycle. We conducted the search
of my niece. Then, my brother receive phone call
on his mobile. Accused demanded ransum of Rs.5
lacs for releasing Nisha.
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On 19.2.2012 in morning, accused again
gave call on the mobile of my brother and repeated
their demand. I identify one person present in the
court who was going on motorcycle on 18.2.2012
with my niece. Police arrested four persons in this
case namely Kalu, Ram Chander and the name of
other two accused I do not remember at present.
Again said, name of third accused was Umesh. I
identify the accused present in Court today."
7. Reading of the evidence of both the above witnesses shows
that both the witnesses are in fact the eye witnesses and they clearly
identified the accused persons before the Court also. In fact, they were
known to the complainant. The submission that there is no evidence of
kidnapping will have to be rejected and consequently we hold that the
appellants had kidnapped the small girl from the house for demanding
ransom.
8. As to the demand of ransom, again looking at the evidence
of PW-1 and PW-3-ASI Kuldeep Singh, we find that not only that there
is evidence of demand of ransom and payment thereof in the sum of
`3,00,000/- but there is recovery also from the appellants of the
respective amounts. The relevant portion of the evidence of PW-3-ASI
Kuldeep Singh reads thus:
"Accused Umesh gave his disclosure
statement to the I.O. that they kidnapped Nisha and
got ransom money of Rs.3 lacs from her father, he
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had kept concealed Rs.75,000/- in his room and he
can get recover the same. His statement Ex.
PW3/M was recorded.
Accused Ram Chander gave his disclosure
statement to the I.O. that they kidnapped Nisha and
got ransom money of Rs.3 lacs from her father, he
had kept concealed Rs.75,000/- in his room and he
can get recover the same. His statement Ex.
PW3/N was recorded.
Accused Anil Kumar alias Kalia gave his
disclosure statement to the I.O. that they
kidnapped Nisha and got ransom money of Rs.3
lacs from her father, he had kept concealed
Rs.60,000/- in his room and he can get recover the
same. His statement Ex.P3/O was recorded.
Accused Karan Gupta gave his disclosure
statement to the I.O. that they kidnapped Nisha and
got ransom money of Rs.3 lacs from her father, he
had kept concealed Rs.75,000/- in his room and he
can get recover the same. His statement Ex.
PW3/P was recorded.
The recoveries were effected as per the
demarcation of accused. IO sealed the recovered
currency notes into plastic boxes separately and
sealed the boxes with his seal impression AP and
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the parcels were taken into police possession vide
memo Ex.PW3/Q to PW3/T. IO prepared the site
plans. I.O. recorded our statements.
On 22.2.2012, accused Anil Kumar suffered
his disclosure statement that he has kept concealed
the motorcycle no.PB-10-BK-6355 near his room
which was used by him during occurrence which
was stolen by him from near Eastman Chowk and
he can get the same recovered. His statement Ex.
PW2/U was recorded.
On the same day, accused Ramesh Kumar
suffered his disclosure statement that he has kept
concealed the cycle near his room which was used
by them during occurrence and he can get the same
recovered. His statement Ex. PW3/V was
recorded."
9. The above evidence, to our mind, clearly proves the case of
kidnapping for ransom. We, therefore, reject the submissions made by
learned counsel for the appellants.
10. The next important question that arises for consideration is
whether the conviction under Section 364 A IPC could have been
recorded by the trial Court. Section 364 A IPC reads thus:
364A. 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
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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.
11. Reading of the above Section clearly shows that important
requirement is that accused should have threatened to cause death or the
conduct should have been such that there could be reasonable
apprehension that such person may be put to death or hurt or causes hurt
or death of such person. This requirement was highlighted by the trial
Court and put at serial No.3 in its judgment. We have closely read the
findings of the trial Court to find out whether the trial Court has given
any specific finding as to the above aspect. However, we find that there
is none. We have, therefore, seen the evidence of witnesses and in
particular PW-1-Arjun Singh-Complainant and PW-2-Surinder Singh-
bother of the complainant, to find out whether any threat was imparted.
We do not find any.
12. Learned State counsel then submitted that there is a mention
about threat in evidence of PW-1. However, we do not agree that any
such threat was given by the accused persons to PW-1 nor he deposed
about it. The threat that has been spoken of is 'not to inform the police'.
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Thus the threat in relation to physical harm etc. or any conduct of the
appellants showing such apprehension is not to be found in any evidence,
including that of PW-1-complainant. In the absence of such evidence,
we do not think that serious offence under Section 364 A IPC could be
said to have been proved. We, therefore, hold that the trial Court was
wrong in convicting the accused for the offence punishable under Section
364 A IPC and sentencing them accordingly.
13. As a sequel to the above findings we are of the firm opinion
that the appellants must be held guilty of the offence under Section 363
IPC read with Section 34 IPC and we hold accordingly. The appellants
had kidnapped a small girl for recovery of money from their own
erstwhile employer. Certainly there was a breach of trust committed by
the appellants only for recovering money from the complainant. We are,
therefore, of the opinion that the maximum sentence provided by Section
363 IPC should have been imposed on them, without granting any
remission. We also find that the appellants deserves to be slapped to the
fine in the sum of `1,00,000/- each and to undergo in default the sentence
of one year. In the result we make the following order:
ORDER
(i) The CRA-D-No.357-DB of 2014 and CRA-D-No.457-DB of 2014, are partly allowed.
(ii) The impugned judgment/order dated 29.10.2013/20.10.2013 passed by the learned Additional Sessions Judge, Ludhiana in Sessions Case No.23123 of 2012, convicting the appellants namely Umesh Kumar, Karan Gupta and Ram Chander, for 11 of 12 ::: Downloaded on - 14-10-2018 00:49:48 ::: CRA-D-No.357-DB of 2014 & connected case (O&M) -12- commission of offence punishable under Section 364-A of Indian Penal Code, 1860 and sentencing them to undergo Rigorous imprisonment for life, is set aside, and they are acquitted of the charge framed against them under Section 364A IPC;
(iii) The impugned judgment dated 29.10.2013 passed by the learned Additional Sessions Judge, Ludhiana, in Sessions Case No.23123 of 2012, convicting the appellants, namely Umesh Kumar, Karan Gupta and Ram Chander, for commission of offence punishable under Section 363 IPC, is confirmed and the impugned order dated 30.10.2013 sentencing them as mentioned therein, is modified and they are sentenced to undergo rigorous imprisonment for seven years and shall pay fine in the sum of `1,00,000/- each; in default of payment of fine, shall undergo further imprisonment for one year each;
(iv) No remissions shall be given to the appellants namely Umesh Kumar, Karan Gupta and Ram Chander, on any count in the matter of sentence.
(A. B. CHAUDHARI)
JUDGE
6th SEPTEMBER, 2018 (B. S. WALIA)
'raj' JUDGE
Whether speaking/reasoned: Yes No
Whether Reportable: Yes No
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