Chattisgarh High Court
Dev Anand @ Men Dev Anand vs State Of Chhattisgarh on 7 September, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.259 of 2012
Dev Anand @ Men Dev Anand S/o Sukhiram Anand, Aged 24
years, R/o Bodsara Police Chauky Naila, Police Station
Janjgir, District JanjgirChampa (CG)
Appellant
Versus
State of C.G. Through Police Station Akaltara,
District Janjgir Champa
Respondent
For Appellant: Mr.Sumit Singh, Advocate
For Respondent/State: Mr.Anmol Sharma, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
(7.9.2022)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the judgment of conviction and order of sentence dated 7.2.2012 passed by the Sessions Judge, Janjgir Champa, in Sessions Trial No.163/2011, by which the learned Sessions Judge has convicted and sentenced the appellant in the following manner: Conviction Sentence Section 363 of the IPC RI for three years and fine of Rs.200/, in default, additional RI for one month.
Section 364A of the Imprisonment for life and
IPC fine of Rs.200/, in
2
default, additional RI for
one month.
Section 368 of the IPC No separate sentence has
been awarded.
2. Case of the prosecution, in brief, is that on
20.5.2011 at 1 p.m. the victim (PW6), aged about 14 years, had gone to computer shop in Bagadia Complex, Akaltara for computer training in which the appellant herein was used to impart the training, but on that day, the victim (PW6) did not come back to her house, then the victim's father Ghanshyam Rajwade (PW1) started searching his daughter and thereafter missing report was lodged by Ghanshyam Rajwade (PW1) to Police Station Akaltara, which was registered in Rojnamcha Sanha (Ex.P1). It is further case of the prosecution that on 20.5.2011 the appellant had taken the victim (PW6) to Raipur informing her that computer training is imparted at Raipur in better way and wrongfully confined her and demanded Rs.5,00,000/ as ransom by making phone call to parents of the complainant / victim and threatened her to kill if amount of Rs.5,00,000/ is not being given. Thereafter on 23.5.2011 the appellant came along with the complainant near temple at Raipur Railway Station, at that time, Subhash Kumar Rajwade (PW5) (brother of the complainant) and Anil Kumar Chandra (PW4) came there and they brought the complainant (PW6) and the 3 appellant to the Police Station Akaaltara and pursuant to which, offences were registered. The complainant (PW6) was medically examined and from the possession of the appellant, one mobile phone bearing number 9770826590 was seized vide Ex.P11 from which call details have been taken, which have been proved by Rajendra Shrivastava (PW10). Statements of the witnesses were recorded under Section 161 of the CrPC and after due investigation, the appellant was charge sheeted before the Chief Judicial Magistrate, Janjgir, who in turn, committed the case to the Court of Session, Janjgir for trial. The accused / appellant abjured the guilt and entered into defence.
3. In order to bring home the offence, the prosecution examined as many as 12 witnesses and exhibited 16 documents Exs.P1 to P16. Statement of the accused/appellant under Section 313 of the CrPC was recorded in which he denied guilt. However, he examined none in his defence and no document has been produced in his defence.
4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 7.2.2012 convicted the appellant for offence under Sections 363, 364A and 368 of the IPC and sentenced for the period as mentioned in opening paragraph of this judgment, against which, this 4 criminal appeal has been preferred.
5. Mr.Sumit Singh, learned counsel for the appellant, would submit as under:
(i) That, offence of kidnapping from lawful guardianship under Section 361 of the IPC has not been established.
(ii) That, offence under Section 364A of the IPC has not been established as alleged call details (Ex.P10) lacks certification requirement under Section 65B(4) of the Indian Evidence Act, 1872 and therefore, it is inadmissible in evidence.
(iii) That, offence under Section 368 of the IPC has also not been proved against the appellant. Therefore, the appeal deserves to be allowed and the impugned judgment deserves to be set aside.
6. On the other hand, Mr.Anmol Sharma, learned Panel Lawyer for the respondent/State, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the appellant has rightly been convicted for the aforesaid offences and as such, the appeal deserves to be dismissed.
7. We have heard learned appearing for the parties and considered their rival submissions made hereinabove and also went through the records with utmost 5 circumspection.
8. The first question for consideration would be, whether the trial Court is justified in convicting the appellant for offence under Section 363 of the IPC ?
9. The appellant has been convicted for offence under Section 363 of the IPC, which is punishable for kidnapping. Kidnapping has been defined under Section 359 of the IPC. According to Section 359 of the IPC, kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship. Section 361 of the IPC defines kidnapping from lawful guardianship which states as under: "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."
10.The object of Section 359 of the IPC is at least as much to protect children of tender age from being abducted or seduced for improper purposes, as for the the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons. Section 361 has four ingredients: (1) Taking or enticing away a minor or a person of unsound mind.
(2) Such minor must be under sixteen years of 6 age, if a male, or under eighteen years or age, if a female.
(3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind.
(4) Such taking or enticing must be without the consent of such guardian.
So far as kidnapping a minor girl from lawful guardianship is concerned, the ingredients are : (i) that the girl was under 18 years of age; (ii) such minor was in the keeping of a lawful guardian, and
(iii) the accused took or induced such person to leave out of such keeping and such taking was done without the consent of the lawful guardian.
11. The Supreme Court while considering the object of Section 361 of the IPC in the matter of S.Varadarajan v. State of Madras1, took the view that if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so and held that if evidence to establish one of those things is lacking, it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian and held as under: "It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's 1 AIR 1965 SC 942 7 protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking"."
12.Reverting to the facts of the present case in light of ingredients of offence under Section 361 of the IPC which is punishable under Section 363 of the IPC & as well as principles of law laid down by the Supreme Court in the matter of S.Varadarajan (supra), it is evident that the complainant (PW6) on the date of incident left her home for computer center at Bagadia Complex, Akaltara, where the accused was also working as computer trainer. The complainant/victim has been examined as PW6. She has clearly stated in her statement before the Court that though on the fateful day he had gone to Bagadia Complex for computer training after leave of her mother Shivkumari, but thereafter she met to the accused at Railway Station and then the accused informed her that computer training is imparted at Raipur in better way and 8 thereafter, she and accused proceeded for Raipur by Chhattisgarh Express train and thereafter by means of auto they have gone to bus stand and she was kept in room from where at the instance of the appellant, she demanded Rs.5,00,000/ as ransom from her father Ghanshyam Rajwade (PW1) by telephone. Similar statement has been made by Ghanshyam Rajwade (PW1) (father of the complainant).
13.As such, there is no evidence on record that at any point of time the appellant solicited or persuaded the victim to leave the company of her parents. On the other hand, it is clearly established that the victim herself has reached to the Railway Station on her own where she met to the accused and thereafter, she and the accused proceeded for Raipur by Chhattisgarh Express train. As such, there is no inducement to the victim by the appellant to leave the lawful guardianship of her parents. Therefore, in the considered opinion of this Court, the act/omission of the appellant, if any, would not tantamount to "taking" within the meaning of Section 361 of the IPC in light of judgment of the Supreme Court in S.Varadarajan (supra). Similarly, there is no evidence of enticing the minor victim by the appellant. As such, the trial Court is absolutely unjustified in convicting the appellant for offence under Section 363 9 of the IPC.
14.Now the appellant has also been convicted for offence under Section 364A of the IPC. Section 364A of the IPC states as under: "364A. 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 intergovernmental 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."
15.Section 364A of the IPC came up for consideration before the Supreme Court in the matter of Shaik Ahmed v. State of Telangana2, in which Their Lordships have considered the provision contained in Section 364A of the IPC and held as under: "12. We may now look into Section 364A to find out as to what ingredients the Section itself contemplate for the offence. When we paraphrase Section 364A following is deciphered:
(i) "Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction"
(ii) "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,
(iii) 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 2 (2021) 9 SCC 59 10 or to pay a ransom"
(iv) "shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
The first essential condition as incorporated in Section 364A is "whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction". The second condition begins with conjunction "and". 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. 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 intergovernmental organisation or any other person to do or abstain from doing any act or to pay a ransom. Third condition begins with the word "or causes hurt or death to such person in order to compel the Government or any foreign state to do or abstain from doing any act or to pay a ransom". Section 364A contains a heading "Kidnapping for ransom, etc." The kidnapping by a person to demand ransom is fully covered by Section 364A."
16.The appellant has been convicted for offence under Section 364A of the IPC on the basis of mobile phone recovered from his possession being mobile number 9770826590 from whom the appellant has called to Ghanshyam Rajwade (PW1) (father of the victim).
17.Submission has been made on behalf of the appellant that mandatory certificate under Section 65B(4) of the Indian Evidence Act has not been produced & proved as it was mandatory as held by the Supreme Court in the matter of Arjun Panditrao Khotkar v. Kailash Kushanrao 11 Gorantyal3.
18.At this stage, it would be appropriate to notice the decision rendered by the Supreme Court in Arjun Panditrao Khotkar (supra) in which their Lordships resolving the dispute and the conflict raised in the matters of Shafhi Mohammad v. State of Himachal Pradesh4 and Anvar P.V. v. P.K. Basheer5 have clearly held that production of certificate under Section 65B of the Evidence Act is mandatory only in case of secondary evidence where primary evidence is not laid or original is not produced. Their Lordships further held that the certificate required under Section 65 B(4) of the Evidence Act is a condition precedent to the admissibility of secondary evidence by way of electronic evidence as laid down in Anvar P.V. (supra) and incorrectly clarified in Shafhi Mohammad (supra). It was held as under: "61. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly "clarified" in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor6, which has been followed in a number of the judgments of this Court, can also be 3 (2021) 7 SCC 1 4 (2018) 2 SCC 801 5 (2014) 10 SCC 473 6 (1875) LR 1 Ch D 426 12 applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose."
Their Lordships also held that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced and this can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and / or operated by him. The reference was answered in paragraphs 73.1., 73.2. and 73.3. as under: "73.1. Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno7, being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad (supra) and the judgment dated 342018 reported as Shafhi Mohd. v. State of H.P.8, do not lay down the law correctly and are therefore overruled. 73.2. The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer 7 Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54 8 (2018) 5 SCC 311 : (2018) 2 SCC (Cri) 704 13 network" and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). The last sentence in para 24 in Anvar P.V. (supra) which reads as "... if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act ..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act, ...". With this clarification, the law stated in para 24 of Anvar P.V. (supra) does not need to be revisited.
73.3. The general directions issued in para 64 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers."
19.In the instant case, it is the case of the prosecution that two phone calls demanding ransom of Rs.5,00,000/ were made by the accused through the complainant (PW6) from his mobile number 9770826590 to Ghanshyam Rajwade (PW1) (father of the complainant) in mobile number 9907117625. Admittedly, only mobile of the appellant bearing number 9770826590 has been seized vide Ex.P10. Neither the mobile of the complainants' father Ghanshyam Rajwade (PW1) on whom mobile calls were made has been seized nor it has been produced before the Court and only call details obtained by the 14 police vide Ex.P10 has been brought on record, which has been proved by Rajendra Shrivastava (PW10), steno to Superintendent of Police, Janjgir. Even it has not been brought on record that mobile number 9907117625 was the mobile owned and possessed & used by Ghanshyam Rajwade (PW1) (father of the complainant) on the date of alleged offence.
20.In the matter of Ravinder Singh @ Kaku v. State of Punjab9 their Lordships of the Supreme Court while following the decision of Arjun Panditrao Khotkar (supra) have held that oral evidence in the place of certificate cannot be possibly suffice as Section 65B(4) is a mandatory requirement of law. Their Lordships held that Section 65B(4) is a mandatory requirement of law and held as under: "21. In light of the above, the electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law. As rightly stated above, oral evidence in the place of such certificate, as is the case in the present matter, cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law."
21.Turning to the facts of the present case in light of aforesaid pronouncement of the Supreme Court in the matter of Ravinder Singh (supra), though call details of the appellant's cell phone was brought on record and proved by oral testimony of Rajendra Shrivastava 9 2022 LiveLaw (SC) 461 15 (PW10), but in view of the fact that Section 65B(4) of the Indian Evidence Act is a mandatory requirement of law and in absence of certificate under the aforesaid provision, merely on the statement of Rajendra Shrivastava (PW10) (steno of Superintendent of Police), call details cannot be said to be proved in absence of required certificate particularly original mobile of the complainant's father Ghanshyam Rajwade (PW1) was neither seized nor it has been stated by Ghanshyam Rajwade (PW1) that mobile number 9907117625 was the mobile owned, possessed & used by him on the date of alleged offence. The prosecution has failed to produce mandatory certificate under Section 65B(4) of the Indian Evidence Act. As such, the finding recorded by the trial Court that the appellant demanded Rs.5,00,000/ as ransom after kidnapping the victim (PW6) is the finding which is clearly perverse. Such a finding deserves to be and is accordingly set aside.
22.The appellant has also been convicted for offence under Section 368 of the IPC. Section 368 of the IPC states as under: "368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person.-- Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same 16 purpose as that with or for which he conceals or detains such person in confinement."
23.From perusal of the aforesaid provision, it appears that this provision does not apply to the principal offender but it refers to those persons who assist him in concealing a kidnapped or abducted person. It refers to some other party who assists in concealing any person who has been kidnapped. A kidnapper cannot be convicted under Section 368 of the IPC. (See Bannu Mal v. Emperor10.) Section 368 of the IPC would be attracted if the accused wrongfully conceals or confines a person with the knowledge that such person has been kidnapped or has been abducted. (See Dharmarajan v. State of Kerala, Rep. by Public Prosecutor11).
24.Section 368 of the IPC presupposes that the offence of kidnapping or abduction has taken place, so that anyone wrongfully concealing or confining the person kidnapped or abducted is guilty of an offence under it. But if such person is not proved to have been kidnapped, the wrongful concealing or confining such person is not an offence under Section 368 of the IPC.
25.The Supreme Court in the matter of Raghunath Singh v. State of M.P.12 has held that knowledge, that a girl was kidnapped or abducted is essential ingredient 10 AIR 1926 Oudh 560 11 2014 CrLJ 3162 (Ker) 12 1967 M.P.L.J. 477 17 under Section 368 of the IPC. It is not sufficient that the accused had reason to suspect or even to believe that she was kidnapped or abducted. If girl alleged to have been kidnapped or abducted was restrained by the accused, but the knowledge of kidnapping or abduction is not established, the accused can only be convicted for wrongful restraint under Section 342 of the IPC.
26.In view of abovestated legal position, the appellant is alleged to have kidnapped the complainant (PW6), but no offence of kidnapping is made out, conviction of the appellant under Section 368 of the IPC is liable to be set aside.
27.For the foregoing reasons, conviction and sentence of the appellants under Sections 363, 364 and 368 of the IPC are set aside. The appellant is acquitted of the charge under Sections 363, 364 and 368 of the IPC. He is on bail. He need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC.
28. Criminal appeal is allowed to the extent indicated hereinabove.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
B/