Delhi District Court
State vs . Babban Singh on 8 February, 2016
1
In the Court of Dig Vinay Singh
ASJ/Special Judge : NDPS : Rohini Courts : Delhi
In the matter of :
SC No. 82/14
State Vs. Babban Singh
FIR no. 725/14
PS Vijay Vihar
U/s 364A/506II of IPC
State
Versus
Babban
S/o Sh. Ram Dhyan Singh
R/o WZ 14, Om Vihar, PhaseIIIrd,
Uttam Nagar, Delhi.
Date of receipt : 26.08.2014
Date of arguments : 04.02.2016
Date of announcement : 08.02.2016
JUDGMENT
1 Sole above named accused was sent for trial with the case of prosecution that he kidnapped for ransom the minor brother of complainant and he also threatened to kill the complainant and his two brothers.
1.1 Brief facts of this case are that on 4.07.2014 at 10.40 PM an information was received in police station Vijay Vihar that one boy has been kidnapped from Rithala Road near Shamshan ghat, BVII, and a sum of Rs. 50,000/ was demanded from mobile no. 9990557346 on the telephone no. 9891641684 of the complainant.
SC No. 82/14 Page 1 of 24 2This information was reduced into writing under DD no. 113B and call was assigned to ASI Ashok Kumar. The ASI along with Ct. Virender Singh reached the spot, where complainant Hansraj met and gave following statement.
1.2 Hansraj stated that he was into the business of selling raw coconuts.
He used to procure coconuts from accused and owed a sum of Rs. 15,000/ to the accused. Complainant went to sell coconuts on 4.7.2014 at 7.30 AM. When he returned to his house at 2.30 PM, wife of complainant informed him that accused had come and was asking for the complainant. Thereafter, complainant spoke to the accused from his mobile no. 9540050568 on the mobile no. 9990557346 of accused and asked the accused to come to the house of complainant and take the balance amount. Accused replied that complainant should come to Uttam Nagar to deliver the balance amount. Complainant refused to go to Uttam Nagar. After sometime, accused called up the complainant and asked the complainant to come and deliver balance payment at Uttam Nagar. The complainant again refused. Thereafter, at about 7 PM, accused called up on the phone of complainant again and told the complainant that he has kidnapped minor brother of complainant namely Ramesh Chander and also made the complainant talk to his minor brother Ramesh Chander on phone. The accused demanded Rs. 50,000/ and asked the complainant to come to Uttam Nagar with the said amount otherwise his brother would be killed. When complainant again requested the accused to come and take his balance amount. The accused said that he would release brother of complainant only after the complainant comes to Uttam Nagar with SC No. 82/14 Page 2 of 24 3 Rs. 50,000/ and threatened to kill all three brothers, including the complainant. Then complainant waited for his brother Ramesh Chander to return till late night. But when Ramesh was not released, the complaint was given. The rukka was dispatched at 12.15 AM on 5.7.2014. Upon registration of case, investigation was taken up. 1.3 It is the case of prosecution that the investigating team reached house no. WZB20, Om Vihar, Uttam Nagar, Delhi, upon finding out the ownership of mobile no. 9990557346. There, Amod Sahni met the investigating team, who informed that though the SIM was in his name but it was being used by accused Babban Singh, who was his cousin and who used to reside at WZ 14, Om Vihar, Uttam Nagar, Delhi. Thereafter, premises of accused was raided and the kidnapped boy Ramesh Chander, aged 13 years, was recovered from the first floor of the house of accused. Accused was also present in the house at that time and he was arrested. At the instance of accused, his car no. DL 3C BV 6794 and mobile phone make NOKIA was also recovered and was taken into possession. During investigation, statement U/s 164 Cr.P.C of the kidnapped boy was also got recorded. The phone call details were collected and on completion of investigation chargesheet was filed. 2 Accordingly, a charge U/s 364A & 506II of IPC was framed against the accused to which the accused pleaded not guilty and claimed trial.
3 In support of its case, prosecution examined total 13 witnesses. 3.1 Out of the 13 witnesses examined, the victim Ramesh Chander is examined as PW13. The complainant Hansraj is examined as SC No. 82/14 Page 3 of 24 4 PW1. The investigating officer ASI Ashok Kumar and the two constables qua recovery of victim namely Ct. Virender Singh and HC Shamsher are examined as PW12, 10 & 8, respectively. Other witnesses are more or less formal in nature.
3.2 PW2 Amod Sahni deposed that in the midnight of 4 th & 5th July, 2014, police came to his house enquiring about mobile connection no. 9990557346 upon which he told the police that though the said number was in his name, but it was being used by accused Babban, his cousin, who used to reside at House no. WZ14, Om Vihar, Phase3, Uttam Nagar, in the same locality. Thereafter, this witness accompanied the police to the house of accused. Accused was present in his house at that time and was apprehended by the police. The witness however did not support the case of prosecution qua recovery of minor child from the house of accused and recovery of car and mobile of accused. This witness was cross examined by the prosecution on that aspect of the matter but nothing came out in the cross examination by the Ld. Prosecutor qua that aspect of the matter. However, this witness was also not cross examined by the accused as to the fact that the number was being used by the accused; police came to the house of this witness and; the accused and police apprehended accused from his house.
3.3 PW3 Amarnath Singh, the Nodal Officer from Idea Cellular Ltd., proved that the mobile no. 9990557346 was in the name of PW2 Amod Sahni. He proved the Customer Application Form Ex.PW3/A and the call detail record for the relevant period as Ex.PW3/C. This witness also proved that the mobile no. 9540050568 was SC No. 82/14 Page 4 of 24 5 registered in the name of Pooja Devi wife of complainant Hansraj. The customer application form and call detailed records of the mobile of the complainant for the relevant period are proved as Ex.PW3/D & F. The Certificate U/s 65B of Evidence Act is proved as Ex.PW3/G along with the Cell ID Chart Ex.PW3/H & I. 3.4 PW4 Mr. Shirish Aggarwal, Ld. Metropolitan Magistrate recorded statement U/s 164 Cr.P.C of the victim boy and proved the same as Ex.PW4/B. 3.5 PW5 Dr. Deepti Bhalla proved medical examination of the victim on 5.7.2014 at 3.12 PM by Dr. Sudhir Kumar under the supervision of this doctor, vide MLC Ex.PW5/A. 3.6 PW6 ASI Ashok was the duty officer who proved registration of FIR Ex.PW6/A and endorsement on rukka Ex.PW6/B. 3.7 PW7 Ct. Abhijeet proved registration of DD no. 113 B Ex.PW7/A. 3.8 PW9 HC Rajesh, the malkhana moharrar, deposed regarding deposition of the mobile phone and car of accused in the malkhana on 5.7.2014 vide entry in malkhana register no. 19 Ex.PW9/A. 3.9 PW11 SI Amit Dahiya was part investigating officer of this case who simply collected call details record of the mobiles and filed the chargesheet.
3.10 PW12 ASI Ashok Kumar and PW10 Ct. Virender Singh deposed that on receipt of DD no. 113B at 10.40 PM on 4.7.2014, they went to the spot where complainant met and gave his statement. On the statement of complainant endorsement was made and case was got registered through Ct. Virender. After registration of FIR, Ct. Virender returned to the spot with copy of FIR and original rukka and handed SC No. 82/14 Page 5 of 24 6 over the same to ASI Ashok. Thereafter the mobile phone ownership of accused was enquired and then under the instructions of SHO, both these witnesses along with PW8 HC Shamsher, Ct. Kuldeep and Ct. Jagdeep proceeded to WZ B20, Om Vihar, Phase3, Uttam Nagar.
3.11 It is deposed by PW8 HC Shamsher, PW10 Ct. Virender Singh and PW12 ASI Ashok that on reaching the said house, Amod Sahni met who told that accused was using that mobile and led the police team to the house of accused I.e. House no. WZ14 in the said locality. Complainant was also with the raiding team. In the house of accused, minor brother of complainant was found. Accused was also found present, who was identified by the complainant and then arrested vide arrest memo Ex.PW1/F. It is also deposed that a recovery memo of victim was prepared Ex.PW1/E and pointing out memo of accused in that regard was prepared Ex.PW1/B. The car in which the victim was kidnapped baring no. DL 3C BV 6794 and the mobile phone of the accused, were taken into possession vide seizure memo Ex.PW1/C & D, respectively. The case property is identified in the court as Ex.P1 & P2. These witnesses also identified the accused in the court categorically.
3.12 The victim child Ramesh Chander was examined as PW13. He deposed that on 4.7.2014 accused came outside his house where he was playing with his friends and after his friends left and the witness was alone, the accused took him to his house. The victim deposed that the accused asked the victim to come near him and when the victim went near the car of accused, the accused asked the victim to accompany him to point out the place of where his SC No. 82/14 Page 6 of 24 7 complainant brother can be found selling coconuts, thereafter the victim was taken to his house by the accused. The accused had asked the victim to sit in his car and he repeatedly asked the victim to take the accused to the place where his brother was selling coconut. After the victim was taken to his house, the accused asked his son to bring one rope and a danda, which was brought by the son of accused, but the victim was neither tied nor given beatings. The witness deposed that when the accused asked his son to bring rope and danda, he said that he would give beatings to the victim. The accused also did not threaten the victim and simply asked him to speak to his brother Hansraj and to ask Hansraj to bring a sum of Rs. 50,000/. The accused thereafter dialed the number of Hansraj and asked the victim to speak to Hansraj and to tell Hansraj that he was given beatings and that Hansraj should bring Rs. 50,000/. The victim also deposed that he told his brother Hansraj that "maar raha hai". Thereafter, the victim was given food and was made to sleep. When the victim asked the accused to release him, the accused told the victim that he would release him when his brother comes. The victim thereafter slept at house of accused after eating meals. The victim was on the first floor of the house and at about 1.00 Am in the midnight, police officials came and took him to police station Vijay Vihar. The victim also identified the car of the accused as Ex.P2. In the leading question, put by the Ld. Prosecutor, the victim stated that when he refused to accompany the accused in his car, then the accused caught hold of his hand and asked him to sit in his car. The victim also admitted suggestion of Ld. Prosecutor that when accused made the victim talk to his brother Hansraj, accused said that if SC No. 82/14 Page 7 of 24 8 Hansraj doesn't bring Rs. 50,000/, he would be killed. 3.13 PW1 Hansraj deposed that he owned the sum of Rs. 16,000/ to the accused against the purchase of coconuts from the accused. On 4.07.2014, he went to sell coconuts in the morning and forgot his mobile at the house. The accused in his absence took away his minor brother aged 13 years namely Ramesh from outside his house when Ramesh was playing outside the house. The witness learnt about it at 2.30 PM when he returned to his house and was told about it by his wife. Thereafter, this witness telephoned accused on his mobile no. 9990557346 from his mobile no. 9540050568 and asked the accused to come to his house and take his money. Accused insisted that complainant should come to Uttam Nagar to deliver money. On telephone, the accused also abused the complainant and threatened to kill his brother, the victim and demanded a sum of Rs. 50,000/ stating that the said amount was to be recovered from him. Thereafter, complainant called the PCR and after making his complaint accompanied the police officials to Uttam Nagar. His brother was recovered from the first floor of the house of accused. Mobile phone and car of accused were also recovered which were taken into possession by the police. This witness identified the accused and the mobile and car of the accused. 4 On completion of prosecution evidence, all the incriminating evidence was put to the accused in his examination U/s 313 Cr.P.C. In his statement, the accused admitted that he used to supply coconuts to the complainant. Accused claimed that he had to recover Rs. 45,000/ from the complainant against coconuts SC No. 82/14 Page 8 of 24 9 supplied to the complainant as well as his brother. Accused claimed that he went to the house of Hansraj one day ago i.e. on 3.07.2014,to recover money but Hansraj told the accused that further coconuts be supplied on the next day and that Hansraj would send the payment through the tempo driver on 4.07.2014. On 4.07.2014, since the accused could not find any known/acquainted tempo driver, he accompanied a new tempo driver to the house of complainant to deliver coconuts and to receive money. Coconuts were off loaded, but when accused demanded money, Ramesh was present but Hansraj was not present. Ramesh claimed that keys were with Hansraj. The accused waited at house of Hansraj from 8.00 AM till 2.00 PM, but Hansraj did not come. His phone was also not reachable. Then he asked Ramesh to accompany the accused to the place where Hansraj would be available while selling coconuts. Thereafter, Ramesh accompanied accused out of his free will. Hansraj could not be found despite search. In the meanwhile, Hansraj called the accused telephonically and Hansraj was asked to come to Uttam Nagar to give money. This call was received at 2.30 PM. Ramesh did not go back to his house stating that his brother Hansraj gave beatings to him, as he had taken Rs. 100/ without knowledge of Hansraj. Ramesh asked accused to employee him and told that he was hungry, therefore, they went to Sultan Puri Market, purchased fish and then went to the house of accused. Accused claimed that he did not kidnap Ramesh, though Ramesh accompanied him in his car. Accused claimed that after SC No. 82/14 Page 9 of 24 10 5.00 PM, wife of Hansraj called the accused, but they could not talk because of disturbance in line. Thereafter, he called back and spoke to wife of Hansraj. Wife of Hansraj told the accused that Hansraj has already left his house for the house of accused. Accused claimed that he did not demand any ransom. He denied that he had confined Ramesh or he threatened to kill anybody. The mobile number of himself and of Hansraj are admitted by the accused. Accused admitted that he was using the mobile in the name of Amod Sahni. Accused also admitted that he saw Amod Sahni with the police at his house when he was asked to wakeup in the night. He admitted that he was arrested from his house but claimed that his signatures were taken on blank papers. Accused admitted that Ramesh was found at his house from first floor. He also admitted that his mobile phone was taken from him and that the car was owned by him and parked outside his house. Accused claimed that he has been falsely implicated because of competition in Azad Pur Mandi and that he was innocent.
4.1 In support of his defence, accused examined two witnesses. 4.2 DW1 Sunita is his wife. She deposed that Ramesh was brought to her house by the accused, but claimed that her husband had told that he would take Ramesh on the next day. She told that Ramesh was given dinner and Ramesh played with the children of the witness and slept in the house.
4.3 DW2 Smt. Saroj is the neighbourer of accused who deposed that Ramesh was seen by her at the house of accused, playing with SC No. 82/14 Page 10 of 24 11 the sons of accused.
4.4 No other defence witness has been examined.
5 I have heard Ld. Prosecutor for the State and Ld. Counsel for the accused. I have also gone through the written submissions filed on behalf of the accused.
6 Ld. Counsel for the accused argued that ingredients of Sec. 364A of IPC are not fulfilled in the present matter as neither there is any kidnapping nor any ransom was demanded or communicated. It is argued that the complainant admitted his debt to the accused, therefore, the dispute between the parties was essentially civil which has been given colour of criminal offence. It is claimed that accused merely took assistance of Ramesh in search of his brother and neither any force was used nor any pressure or inducement was undertaken. The victim voluntarily went with the accused; voluntarily accompanied the accused to the fish market; to the house of accused; he had meals at the house of accused and; he was not restrained from going anywhere. It is argued that there was no detention and the victim was free to leave the house and that since no injury was caused or threatened, therefore, none of the ingredients of Sec. 364A of IPC is fulfilled. It is also argued that necessary ingredients of Sec. 506 IPC are also not fulfilled and besides the complainant and the victim, no independent witness is there to corroborate the factum of kidnapping, demand, threat etc. Wife of complainant has not been made a witness. No criminal makes call from his own mobile for demanding ransom. There was absolute lack of mensrea and therefore, the accused deserves acquittal.
SC No. 82/14 Page 11 of 24 126.1 Accused relies upon the case of Vikas Tyagi & anr. Vs. State decided by Hon'ble Delhi High Court on 01.09.2011 in Criminal Revision Petition no. 777 of 2010. In the said case, against the order framing charges U/s 364A of IPC, relying upon the case of Malleshi Vs. State of Karnataka (2004) 8 SCC 95, Hon'ble Delhi High Court observed that since the demand was not conveyed, therefore, charge U/s 364A of IPC was not made out. 7 On the other hand, Ld. Prosecutor for the State argued that the prosecution witnesses proved beyond doubt that Ramesh was kidnapped by the accused and taken to his house; calls were made to the complainant from the mobile of accused demanding ransom, and therefore all the necessary ingredients of both the offences are completely fulfilled.
8 Before appreciating the contentions of accused, it may be mentioned that it is not in dispute that Ramesh was a minor. Accused admitted that Ramesh was a minor brother of the complainant. Accused admitted that he had to recover money from the complainant against supply of coconuts. Whether the said amount recoverable was Rs. 16,000/ as claimed by the complainant, or whether the said amount recoverable was Rs. 45,000/ as claimed by the accused, is immaterial. The point is that certain amount was indeed recoverable by the accused from the complainant. It is also admitted by the accused that he took Ramesh to his house on 4.07.2014 and that Ramesh was recovered from the first floor of the house of this accused in the midnight intervening 4th & 5th July 2014. 8.1 Sec. 364A of IPC, so far as relevant, provides that whoever kidnaps SC No. 82/14 Page 12 of 24 13 any person or keeps that person in detention after such kidnapping and threatens to cause death or hurt to such person or, even by his conduct gives rise to any such reasonable apprehension of causing death or hurt, in order to compel any person to pay ransom shall be guilty.
8.2 In order to attract Sec. 364A of 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 the abduction was for ransom. (Refer to the case of Malleshi (Supra).
8.3 The contention of accused that Ramesh voluntarily accompanied the accused to his house after assistance of Ramesh was taken for search of complainant, cannot be accepted. Accused admits that he went to the house of accused on 4.7.2014 and till about 2.00 PM, waited for the complainant. Accused also admits that thereafter he took assistance of Ramesh in searching for the complainant and when complainant could not be found, and the complainant spoke to the accused on telephone, he asked Ramesh to go back, but Ramesh did not go back and accompanied him to his house. Accused did not deny that he took Ramesh in his car. Perusal of testimony of Ramesh reveals that initially Ramesh deposed that he was asked by the accused to sit in his car in search of the complainant, but Ramesh also deposed that the accused took him to his house where the accused asked his son to bring rope and danda and then asked Ramesh to talk to his brother asking for Rs. 50,000/ and to tell the complainant that accused was beating him. Ramesh also specifically deposed that he asked accused to drop him to his SC No. 82/14 Page 13 of 24 14 house, upon which the accused said that he would release Ramesh only after his brother comes. In the leading questions put by the Prosecutor, Ramesh deposed that when he refused to accompany the accused, the accused caught hold of his hand and asked him to sit in his car. Ramesh also deposed that when the accused made this witness talk to his brother complainant Hansraj, the accused instructed the child to tell Hansraj that if Hansraj doesn't bring Rs. 50,000/, he would be killed. In the cross examination by the accused also, Ramesh stated that when accused repeatedly asked him to accompany the accused, and when he refused, the accused caught hold of his hand and made him sit in the car. Though the witness also stated that he did not raise alarm and sat in the car quietly, but he stated that he was not even aware that accused was taking him to his house. The said deposition of this witness has remained unrebutted. No suggestion was given to this witness that accused did not catch hold of hand of Ramesh or that accused did not make Ramesh sit in the car or that accused did not compel Ramesh to accompany accused in the car. These facts clearly make out and fulfill all the necessary ingredients of 'kidnapping'. 8.4 'Kidnapping' is defined in Sec. 361 of IPC. It provides that whoever takes or entices any minor under 16 years of age, if a male, out of the keeping of lawful guardian of such minor, without the consent of such guardian, is said to kidnap such minor from lawful guardianship.
8.5 Admittedly, Ramesh's bhabhi i.e. wife of complainant Hansraj was present in the house and when Ramesh was playing outside his house, he was in the lawful guardianship of his bhabhi and his elder SC No. 82/14 Page 14 of 24 15 brother Hansraj. It is not a case where bhabhi of Ramesh allowed Ramesh to be taken by the accused. The taking away of Ramesh by the accused from outside his house was without consent and knowledge of his lawful guardian. As per Ramesh, he was compelled to go. There is no reason for Ramesh to have deposed falsely against the accused on this aspect of the matter. 8.6 Even if the version of accused is believed that he took assistance of Ramesh in searching the complainant and then he allowed Ramesh to accompany him to the house of accused in his car, still it would be within the definition of kidnapping as provided U/s 361 of IPC, as the accused took Ramesh without consent of his lawful guardian. 8.7 It has also come in the evidence of Ramesh that at the house of accused, in presence of Ramesh, accused asked his son to bring a rope and a danda. Though Ramesh was not given beatings, still he was put in fear by the accused by his conduct and words uttered. 8.8 The conduct of accused in asking his son to bring a rope and danda in presence of Ramesh was sufficient to give rise to reasonable apprehension of causing hurt. It has also come in the evidence of complainant specifically that accused demanded a sum of Rs. 50,000/ and asked the complainant to come and give that amount at Uttam Nagar by making telephone calls to the complainant. The conduct of accused in taking minor Ramesh from outside his house to the house of accused without consent and knowledge of guardians was itself sufficient to give rise to an apprehension in the minds of complainant and victim Ramesh that accused can cause hurt or death of Ramesh. The accused also threatened complainant by calling the complainant on telephone that in case complainant SC No. 82/14 Page 15 of 24 16 doesn't bring Rs. 50,000/, Ramesh would be killed. 8.9 The ingredients of detention is also fulfilled in the present case.
Ramesh was taken from outside his house by the accused by catching hold of hand of Ramesh. Ramesh was then kept in the car and ultimately taken to the house of accused. The house of accused is admittedly several kilometers away from the house of complainant and Ramesh. Though the accused claims that the victim could have left his house and the victim did not raise alarm, but those arguments cannot go in favour of accused, since in such a case where a minor is kept by an accused in his house several kilometers away from the house of victim minor, it is nothing but detention. A minor in such an eventuality cannot travel back to his house. Even otherwise it has not come in the evidence that the minor was free to go out of the house or the car of the accused. Though the minor was given food at the house of accused, but it was but obvious that the doors of the house of accused were closed, particularly, during night. The victim was kept on the first floor. He had no means to go out from house of accused.
8.10 Similarly, in the evidence of Hansraj, it is established that the accused not only threatened to kill Ramesh but he also telephonically threatened the complainant that the complainant and his other brothers would be killed. The said deposition in the testimony of PW1 Hansraj has remained unrebutted. The accused even did not suggest this witness that no such threat was extended. 8.11 Telephonic calls between the accused and the complainant are not denied. PW3 Amarnath from Idea Cellular Ltd. Proved the call details of both the accused and the complainant. The CDRs Ex.PW3/C & SC No. 82/14 Page 16 of 24 17 Ex.PW3/F reveals telephonic conversation between the number of accused and the number of complainant on 4.7.2014 at 12:58:26 hours for 14 seconds; 13:02:34 hours for 42 seconds; 13:06:14 hours for 63 seconds; 14:41:42 hours for 14 second; 14:4 2:16 hours for 66 seconds; 14:46:30 hours for 58 seconds; 16:00:44 hours for 185 seconds; 17:47:27 hours for 40 seconds; 17:48:43 hours for 66 seconds; 18:42:49 hours for 103 seconds; 19:15:00 hours for 37 seconds; 19:16:06 hours for 14 seconds; 19:18:27 hours for 36 seconds; 19:53:18 hours for 24 seconds and; 21:08:13 for 218 seconds. Thereafter, complainant made PCR call at 21:16:24 hours and 22:22:14 hours. Out of the above mentioned calls, the call made at 14:41:42 hours for 14 seconds was made from the mobiile of accused to the mobile of complainant and rest of the calls were made from the phone of complainant to the phone of accused. These call details are not denied. There genuiness is not in dispute. 8.12 Therefore the first two necessary ingredients U/s 364A of IPC indeed gets fulfilled qua kidnapping as well as detention and putting the victim and complainant in fear of death or hurt. But the question is whether the demand made by the accused to the complainant can be called as demand of ransom.
8.13 In the case of Malleshi (Supra) Hon'ble Supreme Court held in para no. 13 it is held that as per Black's Law Dictionary, ransom means, to pay price or demand for ransom. The word 'demand' means "to claim as one's due"; "to require"; "to ask relief"; "to summon"; "to call in court"; "an imperative request preferred by one person to another, under a claim of right, requiring the latter to do or yield something or to abstain from some act"; "and asking with SC No. 82/14 Page 17 of 24 18 authority, claiming or challenging as due".
8.14 In the case of Suman Sood @ Kamal Jeet Kaur Vs. State of Rajasthan (2007) 5 SCC 634, following was held qua Section 364A of IPC;
"55. Offences of kidnapping and abduction were included in the Indian penal Code in 1860 when the Code was enacted. An offence of kidnapping for ransom, however, did not find place then. It was only in 1993 that by Act 42 of 1993, Section 364A was inserted. The offence is serious in nature and punishment prescribed for the crime is death sentence or imprisonment for life and also of payment of fine.
56. ...........................................................
...........................................................
57. Before the above section is attracted and a person is convicted, the prosecution must prove the following ingredients; (1) The accused must have kidnapped, abducted or detained any person;
(2) He must have kept such person under custody or detention; and (3) Kidnapping, abduction or detention must have been for ransom.
[See also Malleshi v. State of Karnataka, (2004) 8 SCC 95]
58. The term 'ransom' has not been defined in the Code.
59. As a noun, 'ransom' means "a sum of money demanded or paid for the release of a captive". As a verb, 'ransom' means "to obtain the release of (someone) by paying a ransom", "detain (someone) and demand a ransom for his release". "To hold someone to ransom" means "to hold someone captive and demand payment for SC No. 82/14 Page 18 of 24 19 his release". (Concise Oxford English Dictionary, 2002; p. 1186).
60. Kidnapping for ransom is an offence of unlawfully seizing a person and then confining the person usually in a secret place, while attempting to extort ransom. This grave crime is sometimes made a person capital offence. In addition to the abductor a person who acts as a go between to collect the ransom is generally considered guilty of the crime.
61. According to Advanced Law Lexicon, (3rd Edn., p. 3932);
"Ransom is a sum of money paid for redeeming a captive or prisoner of war, or a prize. It is also used to signify a sum of money paid for the pardoning of some great offence and or setting the offender who was imprisoned."
62. Stated simply, 'ransom' is a sum of money to be demanded to be paid for releasing a captive, prisoner or detenu."
8.15 One may also usefully refer to the case of Vikram Singh Vs. Union of India (2015) 9 SCC 502 in order to understand the true scope and purport of bringing Section 364A of IPC on the statute book. Wherein after considering the historical background in which this provision was brought on statute book, it was observed that Law Commission of India recommended such a provision with severe punishment since kidnapping or abduction for ransom were increasing. Primarily therefore this provision was brought on the statute book for punishing criminals who kidnap or abduct for the purposes of taking ransom.
8.16 In the present case, it is not in dispute that there were business SC No. 82/14 Page 19 of 24 20 relations between the accused and the complainant. It is also not in dispute that complainant was under debt, due towards the accused. It appears that the accused in order to recover his dues adopted wrong means of taking younger brother of complainant to his house and then asking the complainant to come and pay the dues. Though in the present matter complainant claims that only Rs. 16,000/ was to be paid as dues whereas accused claims that those dues were around Rs. 50,000/, but neither of the sides proves the exact amount due between them. Indeed however one thing is very clear that in the business relations between the accused and the complainant, some amount was due from the complainant to the accused. In such circumstances, the requisite mensrea for demand of ransom seems lacking. The accused appears to have adopted a method to arm twist and pressurize the complainant in order to seek recovery of his dues. Admittedly, the accused doesn't belong to any such gang who indulge in demanding ransom after kidnapping. There is no criminal background of this accused. Had the accused intended to demand ransom, he would not have made calls from his own mobile phone to the mobile phone of complainant. A neighbourer of the accused (DW2 Smt. Saroj) deposed that the child was seen in the house by her, playing with the children of accused. Admittedly, Ramesh was not tied up in the house with any rope or any other material. Admittedly Ramesh was taken to the fist market before being taken to the house of accused and admittedly he was given meals properly. Ramesh was sleeping in the house of accused when found by the police. Had the accused really intended to seek ransom with the requisite mensrea as required U/s 364A of SC No. 82/14 Page 20 of 24 21 IPC, the accused would have avoided to make calls from his mobile, the accused would have avoided keeping Ramesh in his house openly. Theses factors do indicate that the requisite mensrea of ransom was lacking in the present case. Yet the Prosecution has proved that minor Ramesh was kidnapped, detained and wrongfully confined in the house of the accused. Those allegations makes out a case U/s 365 of IPC but not U/s 364A of IPC.
8.17 It is now well settled that where charges are framed in a matter for a higher offence, an accused can be found guilty and convicted for a lesser offence. Section 222 of Cr.P.C provides that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. It is also provided in the sub section (2) of Section 222 Cr.P.C that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. In the present case the accused was charged for a higher offence U/s 364A of IPC in which kidnapping, detention, confinement is proved but ransom is not proved. Therefore, accused can be convicted U/s 365 of IPC instead of Section 364A of IPC. 9 The contention of accused that wife of complainant has not been examined is futile. It is not the number of witnesses examined in a matter which matters but it is the quality of evidence which matters. The testimony of PW1 & 13 has remained largely unrebutted. It is admitted by the accused that Ramesh was recovered from his house SC No. 82/14 Page 21 of 24 22 by the police in the midnight. In such circumstances, non examination of wife of complainant pales into insignificance. 10 Except some minor contradictions in the testimony of prosecution witnesses, which does not go to the root of the prosecution's case, absolutely nothing has come out in the cross examination of the witnesses in favour of the accused.
11 In the cross examination of complainant PW1, the accused relied upon an affidavit executed by PW1, Ex.PW1/D1 and asked the witness whether it was executed under anybody's pressure. PW1 Hansraj replied that he did not execute it under anybody's pressure and gave that affidavit out of his free will. This affidavit Ex.PW1/D1 was executed on 24.7.2014 i.e. during the period when the accused was in custody. In this affidavit, Hansraj has mentioned that due to misunderstanding he filed complaint against the accused as there was pressure by the accused for recovery of his dues and that the statement given by Ramesh to the police and to the Ld. Magistrate was also due to the misunderstanding. This affidavit cannot be relied in favour of the accused as it appears to have been got executed by the accused to secure his bail. In the cross examination of PW1, it was suggested to him by the accused that FIR was got registered by the complainant falsely since the complainant wanted to evade the dues. This suggestion was specifically denied by PW1. 12 Admittedly, accused and complainant were known to each other and there were business relationship. It, therefore appears that when the accused was caught on wrong foot, he influenced or requested or pressurised the complainant to execute Ex.PW1/D1. 12.1 In the cross examination of Ramesh, no such fact has come that he SC No. 82/14 Page 22 of 24 23 made statement against accused falsely at any stage. Ramesh specifically denied that he gave false statement on tutoring of his brother or anybody else. Ramesh also specifically denied that he deposed falsely against the accused.
12.2 The contention of accused that this affidavit exonerates the accused, is therefore rejected.
13 The contention of accused that there is no independent witness and therefore prosecution's case should be disbelieved has to be rejected. There could not have been independent witness in the present matter since, the accused himself claims that he asked Ramesh to accompany him in search of Hansraj and then took Ramesh to his house in his car. Ramesh was thereafter kept in the house. Therefore, there was no occasion for any independent witness to have witnessed the kidnapping or the calls made by the accused. An independent witness who is none other than the defence witness no. 2 indeed corroborated that Ramesh was seen at the house of accused. Even wife of this accused Smt. Sunita as DW1 deposed against the accused to the effect that the accused spoke to Hansraj telephonically. Also in view of the admissions made by the accused, the contention of accused that no independent witness was examined by the prosecution is rejected. 14 The claim of accused that the version of complainant that his brother was kidnapped by the accused, based on the version of wife of complainant, makes the testimony of complainant as hearsay, pales into insignificance for the following reasons. 14.1 It is the accused who made calls to the complainant and told the complainant about his brother being kidnapped by the accused. It is SC No. 82/14 Page 23 of 24 24 the accused who demanded the dues. Accused admitted that Ramesh accompanied him to his house after he was taken in his car and that Ramesh was recovered from his house by the police. 15 The acts committed by accused covers his case within the definition of Sec. 365 and Sec. 506II of IPC.
16 Accordingly, the accused is found guilty and is convicted U/s 365 & Section 506II of IPC.
Announced in the open court on 8th day of February, 2016. Dig Vinay Singh ASJ/Spl.Judge : NDPS (NW) Rohini Courts/Delhi.
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