Allahabad High Court
Deshraj And Another vs State Of U.P. on 6 March, 2019
Equivalent citations: 2019 (5) ALJ 294, 2019 (198) AIC (SOC) 18 (ALL), (2019) 107 ALLCRIC 176, (2019) 5 ADJ 154 (ALL)
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 05.02.2019
Delivered on 06.03.2019
Court No. 54
Criminal Appeal No. 4264 of 2009
1. Deshraj
2. Kalyan ---- Appellants
Vs.
State of U.P. ---- Respondent
For Appellants : Sri Rajesh Kumar Mishra, Advocate
For Respondent/State : Sri Amit Sinha, Addl. Govt. Advocate
WITH
Criminal Appeal No. 4176 of 2009
Jhabbu ---- Appellant
Vs.
State of U.P. ---- Respondent
For Appellant : Sri Sukhvir Singh, Advocate
For Respondent/State : Sri Amit Sinha, Addl.Govt. Advocate
WITH
Criminal Appeal No. 4588 of 2009
Anand Kumar @ Chhote ---- Appellant
Vs.
State of U.P. ---- Respondent
For Appellant : Sri Ambrish Kumar, Advocate
For Respondent/State : Sri Amit Sinha, Addl.Govt.Advocate
Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Raj Beer Singh, J
1. All these appeals arise out of the impugned judgement and order dated 30.06.2009 passed by the Additional Sessions Judge/Fast Track Court No. 1, Kannauj in Sessions Trial No. 33 of 1993, whereby the accused-appellants namely Deshraj, Kalyan, Jhabbu and Anand Kumar alias Chhote have been convicted u/s 364-A of Indian Penal Code and sentenced to Imprisonment for life along with a fine of Rs. 10,000/- each, and in default of payment of fine, they have been further sentenced to six months rigorous imprisonment, while all the accused-appellants have been acquitted of the offence under Section 368 of IPC. Accused Munnalal has been acquitted of all the charges levelled against him. All these appeals are being disposed of by this common judgement.
2. As per prosecution case, on 15.11.1987 at 10:00 AM, complainant's son Aadeep Kumar left his home for going to his sister's house at Thathiya by bicycle but in the way he went missing. The complainant Ratiram tried to search him and on 20.11.1987 he filed a missing report. Meanwhile, he received some letters asking for ransom. After some days one Ramphere Nai told the complainant that his son was seen with Anand Kumar alias Chhote and Ravendra Singh. Thereafter, the matter of ransom was settled with Ramakant, who was in jail and Munnalal Vakeel was the mediator in the process. On 13.01.1988, ransom amount of Rs. 50,300/- was paid to Munnalal Vakeel at Fatehgarh in presence of Adesh Kumar, Raj Kumar Singh Bhadaoriya and Ramvilas. On the intervening night of 15-16.01.1988, at around 1:00 AM, Kalyan and his brother Deshraj released the complainant's missing son Aadeep Kumar near Neeraj Cold Store. Aadeep Kumar reached at his sister's house at Jalalabad and later on returned back to his home. After coming back, complainant's son told that he was taken away by Anand Kumar alias Chhote and Ravendra Singh on the pretext of going to Bhikhnipurva Thathiya by stating that they were also going there but he was taken to Basanti Cold Store near Gursahai ganj. There, Ramakant and Jhabbu Yadav met and they covered his eyes and taken him to the house of one Kalyan Jatav at village Aampurva and confined there. Brother of Kalyan Jatav, namely Deshraj used to keep a watch on him and he used to tell his name as Shivnath Singh Chauhan. It was alleged that after coming from the captivity of the abductors, Aadeep Kumar was quite ill. For some days, the complainant remained busy in providing treatment to his son and thus, he could not lodge the report. It was also alleged that the talk regarding ransom was also made with one Ramakant at village Fardpura, district Mainpuri but he was not ready for ransom of less than Rs. 2 lakhs. The complainant submitted a written complaint exhibit Ka-12 and on the basis of which, the report was registered on 09.02.1988 at 17:15 hours.
3. Initial investigation of the case was conducted by S.I. Ganga Ram Dohare and thereafter, from 17.02.1988 the investigation was taken up by PW-8 R.S. Sisodiya. The statements of the witnesses including that of Aadeep Kumar were recorded. The site plan of the spot of recovery was prepared vide exhibit Ka-10. The complainant has also produced seven letters received by him after disappearance of his son and the same were also taken into possession on 17.02.1988 by seizure memo exhibit Ka-2. During investigation, the police have taken the victim to the house, where he was kept confined by the abductors, and he pointed out the room in which he was confined. After completion of investigation, the accused-appellants along with co-accused Munnalal were charge sheeted by charge sheet exhibit Ka-11.
4. While framing charge, initially learned trial court has framed charge under Sections 365 and 368 of IPC against all the accused persons vide order dated 29.07.2004. It appears that after prosecution evidence, the charge was altered from Sections 365, 368 IPC to Sections 364-A and 368 of IPC by order dated 09.06.2009.
5. So as to hold the accused persons guilty, the prosecution has examined nine witnesses. After prosecution evidence, statements of accused persons were also recorded under Section 313 Cr.P.C, wherein they pleaded their innocence and claimed false implication. However, no evidence was led by them in their defence.
6. After hearing and analysing the evidence on record, learned Trial court convicted the accused-appellants under Section 364-A of IPC and sentenced them as mentioned in paragraph no. 1 of this judgment, by the impugned judgment and order dated 30.06.09 while they were acquitted for the charge u/s 368 of IPC whereas co-accused Munnalal was acquitted from all the charges levelled against him.
7. Being aggrieved by the impugned judgment and order of the trial court, the accused persons, namely, Deshraj and Kalyan have preferred criminal appeal No. 4264 of 2009, accused Jhabbu has preferred criminal appeal no. 4176 of 2009 and accused Anand Kumar alias Chhote has preferred criminal appeal no. 4588 of 2009 before this Court.
8. We have heard the learned counsel for the accused-appellants and the learned A.G.A. for the State.
9. In evidence, PW-1 Aadeep Kumar, who is the victim of the alleged abduction, has stated that he was kidnapped on 15.11.87. At that time, he was a student of 12th class and one Ravendra Singh was his classmate. On 10.11.1987, when he was coming from his school to home, Chhote alias Anand Kumar met him and inquired as to when he would go to his sister's home at Bhaknipurva and PW-1 told that he would go there on 15.11.1987. On 15.11.1987, when PW-1 was going to Bhaknipurva by bicycle and reached at Talgram, Anand Kumar alias Chhote met him and stated that he would also go to Bhaknipurva. After that Ravendra Singh and Anand Kumar alias Chhote also came there and they took PW-1 to a grove and when PW-1 stated that this way does not lead to Bhaknipurva, they stated that they have some work at Jalalabad. When all of them reached near Basanti Cold Store, brother of Ravendra Singh, namely Ramakant and one Jhabbu also came there. They caught PW-1 at the point of pistol, covered his eyes and he took him away. Meanwhile, one-two more persons also joined them. They took PW-1 at the house of Kalyan and detained him there. He was kidnapped for ransom and he was made to write a letter to his father for ransom of Rs. 1,50,000/-. PW-1 was detained there for about two months. Thereafter, he was set free stating that the ransom amount has been received and he was left near Neeraj Cold Storage. PW-1 reached at the house of his sister at Jalalabad, but his physical condition was not well. Thereafter, he reached at his home and his father has lodged the report. His father has told that he has paid ransom of Rs. 50,300/- to the kidnappers. PW-1 has identified the letter, which he was made to write by the kidnappers, as exhibit ka-1.
10. PW-2 Parshuram has stated that on 15.11.1987, when he was returning after seeing his relative, near Bargath, Anand Kumar was going by bicycle and Aadeep Kumar was sitting on the rear carrier of the cycle.
11. PW-3 Chandra Shekhar, who is the brother of Aadeep Kumar, has stated that on 13.01.1988, an amount of Rs. 50,300/- was paid near the seat of Munnalal, Advocate by his father.
12. PW-4 Ram Vilas has stated that after kidnapping of the son of complainant, Ratiram met Ramakant in Fatehgarh Jail and Ratiram told PW-4 that Ramakant was demanding ransom. Ratiram took him to a place where the amount was paid for release of his son.
13. PW-5 Purshottam Pandey has stated that Ratiram is his father-in-law and Aadeep Kumar is his brother-in-law. On 15.11.1987, his brother-in-law was kidnapped. On 13.01.1988 at 4:00 PM, an amount of Rs. 50,300/- was paid by the complainant to Munnalal, Advocate and thereafter on the intervening night of 15/16.01.1988, son of the complainant was released near Neeraj Cold Store.
14. PW-6 Rajendra Prasad Trivedi has stated that son of the complainant is his maternal uncle, who was kidnapped on 15.11.1987 and after securing ransom of Rs. 50,300/-, son of the complainant was set free by the kidnappers near Neeraj Cold Storage and from there he reached at his sister's house at Jalalabad. He has further stated that on 13.01.1988 at about 5:00 PM, ransom amount of Rs. 50,300/- was paid in presence of Adesh Kumar and Chandra Shekhar. He has also stated the details of currency notes of the amount paid.
15. PW-7 Ram Shanker has stated that Sunder Lal and Ratiram are residents of his village, while Adesh Kumar is resident of Bamrauli. On 13.01.1988, he along with Sunder Lal and Ratiram went to the house of Adesh Kumar at Bamrauli. Adesh Kumar told that for the release of the kidnappee, a ransom amount of Rs. 50,000/- was to be paid at Fatehgarh and thereafter they along with Aadesh Kumar went at Fatehgarh court and reached at the seat of one Advocate. There, ransom amount of Rs. 50,300/- was paid to the Advocate. After that, on 16.01.1988, son of the complainant was set free by the kidnappers.
16. PW-8 R.S. Sisodiya has stated that initially investigation was conducted by Ganga Ram Dohare, who has since expired. Further investigation was conducted by him. He recorded the statements of the victim and the ransom letters exhibit Ka-1, exhibit Ka-3 to exhibit Ka-8 were taken into possession by him vide seizure memo exhibit Ka-2. The victim Aadeep pointed out the spot where he was confined and in this regard, memo exhibit Ka-9 was prepared. The site plan of the spot of recovery was also prepared vide exhibit Ka-10. After completion of the investigation, charge sheet exhibit ka-11 was filed against the accused persons.
17. Sri Rajesh Kumar Mishra, learned counsel for the accused-appellants submits as under:
(i) that all the accused appellants have been convicted u/s 364-A of IPC while they were acquitted of the charge under Section 368 of IPC. It was pointed out that the alleged incident of kidnapping took place on 15.11.1987 and the missing report was lodged on 20.11.1987 and thereafter the FIR was lodged on 09.02.1988 while Section 364-A of IPC was inserted in the Indian Penal Code by Criminal Law (Amendment) Act, 1993 in the year 1993 and thus, it is clear that this provision was not on the statute when the alleged offence was committed and therefore, they can not be convicted u/s 364-A of IPC as their conviction u/s 364-A IPC is hit by the bar of 'ex post facto law'.
(ii) that the accused persons have been convicted of the charge, which was at all not an offence at the time of alleged incident and thus, the conviction of the accused-appellants is illegal and it is hit by the principle of "ex-post facto laws" as provided under Article 20(1) of the Constitution of India. It was argued that Section 364-A of IPC is a substantial offence and thus, the conviction of the accused-appellants under Section 364-A of IPC was not permissible under law.
(iii) that there is a long and inordinate delay in lodging the FIR, which could not be explained and therefore, the prosecution version is highly doubtful.
(iv) that there are contradictions and inconsistencies in the statements of the witnesses, which make their testimony unreliable.
18. In support of his contentions, learned counsel has relied upon the following case laws:
(a) Rao Shiv Bahadur Singh Vs. State of Vindhya Pradesh reported in 1953 LawSuit (SC)67;
(b) Soni Devrajbhai Babubhai vs. State of Gujarat report in 1991 LawSuit (SC) 412;
(c) Superintendent, Narcotic Control Bureau v Parash Singh reported 2008 Law Suit (SC) 1492.
(d) Kuldeep Singh Jat V State of Madhya Pradesh 2009 LawSuit (MP) 367;
19. Sri Amit Sinha, learned A.G.A. for the State could not dispute the position that the incident in question, took place in the year 1987 while the provision of Section 364-A of IPC was added in the Indian Penal Code by way of Criminal Law (Amendment) Act, 1993 in the year 1993. However, it was argued that initially on 29.07.2004, accused-appellants were charged u/s 365 and 368 of IPC and thereafter the prosecution has led its entire evidence and the accused persons were examined under Section 313 of Cr.P.C. Thereafter, the charge was amended and in place of Sections 365 and 368 of IPC, the accused persons were charged under Sections 364-A and 368 of IPC by the trial court vide order dated 09.06.2009. It was also pointed out that when the amended charges u/s 364-A and 368 of IPC were framed, it was stated on behalf of the accused persons that they do not want to cross-examine the witnesses and an endorsement to this effect was made on the ordersheet dated 09.06.2009 of the record of Trial court. In view of these facts, no prejudice would be caused to the accused-appellants if their conviction is altered into Section 365 of IPC. It was argued that conviction of the accused appellants can be converted into Section 365 of IPC as the offence punishable u/s 365 of IPC is of same nature and it prescribes less punishment than Section 364-A of IPC. As the entire prosecution evidence was led on the charge under Sections 365 and 368 of IPC, thus, no prejudice, at all, would be caused to the accused-appellants, if their conviction is altered under Section 365 of IPC. It was submitted that in view of above stated facts, accused-appellants cannot be given benefit of alleged error in charge.
20. We have considered the rival contentions of learned counsel for the parties and perused the record.
21. It is apparent from the record that alleged incident of kidnapping of the son of the complainant took place on 15.11.1987 and after he was set free by paying ransom, the report was lodged on 09.02.1988. After completion of the investigation, the accused persons were charge sheeted for the offence under Sections 365 and 368 of IPC. Initially all the accused-appellants were charged for the offences under Sections 365 and 368 of IPC by the Trial court vide order dated 29.07.2004. The prosecution has led its entire evidence in support of these charges and total nine witnesses were examined. On 26.05.2009, accused persons were examined under Section 313 of Cr.P.C. Thereafter the charge was altered by the trial court vide order dated 09.06.2009 from Sections 365 and 368 of IPC to Sections 364-A and 368 of IPC. At the conclusion of the trial, the appellants were convicted u/s 364-A IPC by the judgment and order dated 30.06.2009. It is not in dispute that the provision of Section 364-A was inserted in the Indian Penal Code by way of Criminal Law (Amendment) Act, 1993 in the year 1993, which came into force w.e.f. 22.05.1993 and thus, this provision was not at the statute i.e. in Indian Penal Code when the alleged offence has taken place in the year 1987. It is well settled that a person cannot be convicted of an offence except for violation of a law in force at the time of commission of the offence. It is one of the well settled positions that conviction and sentence under "ex-post facto laws" are prohibited by law. This principle has been enshrined under Article 20(1) of the Constitution of India, which reads as under;
''(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence''.
22. In the case of Rao Shiv Bahadur Singh (supra) while considering the provisions of Article 20(1) of the Constitution of India, the Hon'ble Apex Court has held as under:
"This article in its broad import has been enacted to prohibit convictions and sentences under ex-post facto laws. The principle underlying such prohibition has been very elaborately discussed and pointed out in the very learned judgment of Justice Willes in the well known case of Phillips v. Eyre (1) and also by the Supreme Court of V. S. A. in calder v. Bull (2). In the English case it is explained that ex post facto laws are laws which voided and punished what had been lawful when done. There can be no doubt as to the paramount importance of the principle that such ex Post facto laws, which retrospectively create offences and punish them are bad as being highly inequitable and unjust. In the English system of jurisprudence repugnance of such laws to universal notions of fairness and justice is treated as a ground not for invalidating the law itself but as compelling a beneficent construction thereof where the language of the statute by any means permits it. In the American system, however, such ex post facto laws are themselves rendered invalid by virtue of article 1, sections 9 and 10 of its Constitution. It is contended by the learned Attoney-General that article 20 of' the Constitution was meant to bring about nothing more than the invalidity of such ex post facto laws in the post-Constitution period but that the validity of the pre-Constitution laws in this behalf was not intended to be affected in any way."
23. In the case of Soni Devrajbhai Babubhai (supra), the victim lady has died on 13.08.1986 and the case was registered under Sections 498-A/34. Section 304-B was inserted by Act No. 43 of 1986 w.e.f. 19.11.1986. The petitioner has filed an application for committing the case to the court of sessions for trial u/s 498A/304-B IPC which was dismissed by the learned Magistrate. The petitioner has also filed an application in the High Court for seeking such a direction but the same was also rejected by the High Court and thereafter the special leave petition was filed before the Hon'ble Apex Court. After considering the relevant provision, the Hon'ble Apex Court has held as under:
"It is clear from the above historical background that the offence of dowry death punishable under section 304-B of the Indian Penal Code is a new offence inserted in the Indian Penal Code with effect from 19.11.1986 when Act No. 43 of 1986 came into force. The offence under section 304-B is punishable with a minimum sentence of seven years which may extend to life imprisonment and is triable by Court of Session. The corresponding amendments made in the Code of Criminal Procedure and the Indian Evidence Act relate to the trial and proof of the offence. Section 498; A inserted in the Indian Penal Code by the Criminal Law (Second Amendment)Act, 1983 (Act No. 46 of 1983) is an offence triable by a Magistrate of the First Class and is punishable with imprisonment for a term which may extend to three years in addition to fine. It is for the offence punishable under section 498-A which was in the statute book on the date of death of Chhaya that the respondents are being tried in the Court of Magistrate of the First Class. The offence punishable under section 304-B, known as. dowry death, was a new offence created with effect from 19.11.1986 by insertion of the provision in the Indian Penal Code providing for a more stringent offence' than section 498-A. Section 304-B is a substantive provision creating a new offence and not merely a provision effecting a change in procedure for trial of a pre-existing substantive offence. Acceptance of the appellant's contention would amount to holding that the respondents can be tried and punished for the offence of dowry death provided in section 304-B of the Indian Penal Code with the minimum sentence of seven years' imprisonment for an act done by them prior to creation of the new offence of dowry death. In our opinion, this would clearly deny to them the protection afforded by clause (1) of Article 20 of the Constitution which reads as under:
"20.. Protection in respect of conviction for offences.
(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, 'nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
In our opinion, the protection given by Article 20(1) is a complete answer to the appellant's contention. The contention 'of learned counsel 'for the appellant that section 304-B inserted in the Indian Penal Code does not create a new offence and' contains merely a rule of evidence is untenable. The rule of evidence to prove the offence of dowry death is contained in section 113-B of the Indian Evidence Act providing for presumption as to dowry death which was a simultaneous' amendment made in the Indian Evidence Act for proving the offence of dowry death. The fact that the Indian Evidence Act was so amended simultaneously with the insertion of section 304-B in the Indian Penal' Code by the same Amendment Act is' another pointer in this direction. This contention is, therefore, rejected."
24. In the case of Superintendent, Narcotic Control Bureau (supra), the Hon'ble Apex Court has held as under;
"It is manifest from Article 20(1) that it prohibits (1) making an Act for the first time and then making that law retrospective. In other words it is not permissible to create an offence retrospectively (2) the infraction of the penalty may not be higher than what is prescribed in law which was in force at the time of the commission of the offence. It needs to be noted that the validity of Amendment Act was challenged before this Court in Basheer @ N.P. Basheer v. State of Kerala [2004(3) SCC 609]. The validity of the Act was upheld. This Court held that (a) all cases pending before the Court on 2.10.2001; (b) all cases under investigation as on that date shall be disposed of in accordance with the provisions of the Act as amended by the Amending Act. In State through CBI Delhi v. Gian Singh [1999(9) SCC 312] it was held with reference to Article 20(1) of the Constitution that it is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribes and no ex-post facto legislation is permissible for escalating the severity of the punishment. But if any subsequent legislation down grades the harshness of the sentence for the same offence, it would be salutary principal for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence. The view expressed in Gyan Singh's case (supra) finds support from the case of T. Barai v. Henry Ah Hoe & Anr. [1983 (1) SCR 905]. The High Court was not justified in holding that new offence was created. Before the amendment as well as after the amendment the ingredients of Section 8 remain same and there was no amendment in this provision. Only punishment for contravention in relation to cannabis plant and cannabis i.e. Section 20 of the Act has been amended by the Amendment Act."
25. In the case of Kuldeep Singh Jat vs. State of Madhya Pradesh (supra), the issue was again before the Hon'ble Apex Court for consideration and it was held as under;
"In Article 20, it is specifically mentioned that person can be convicted under the provision of law which is applicable on the day of commission of act charged as an offence. In the instant case, offence was committed on 05.03.2001 and on that day amended penal law was not in force. Act was amended by Act No. 9 of 2001 on 9.5.2001 and made applicable from 2.10.2001, therefore, this amended Act would not be applicable for imposing punishment to the appellant and the appellant would be liable for conviction under old section 20(i) of the old Act 1985."
26. From the above propositions of law, it is quite apparent that a person cannot be punished for the offence, which was not in existence at the time of commission of the offence and has been created subsequent to the commission of the offence. A penal law cannot be made applicable with retrospective effect as held by the Hon'ble Apex Court in the case of Soni Devrajbhai Babubhai (supra). Applying the above stated position of law in the facts of the present case, it is clear that the accused-appellants cannot be convicted for the offence under Section 364-A of IPC as said provision was inserted in the Indian Penal Code by way of Criminal Law (Amendment) Act, 1993 in the year 1993, which was made applicable with effect from 22.05.1993,while the offence in question has been committed in the year 1987. Therefore, the conviction of the accused-appellants under Section 364-A of IPC is not permissible under the law and the same is liable to be set aside.
27. The next question, which arises for consideration, is that whether the conviction of the accused-appellants can be altered to u/s 365 of IPC. It is clear from the record that the incident in question, has taken place in the year 1987. Record shows that at the commencement of the trial on 29.07.2004, accused persons were charged under Sections 365 and 368 of IPC and thereafter the prosecution has led its entire evidence and the accused persons were examined under Section 313 of Cr.P.C. It was only thereafter that the charges were amended and in place of Sections 365 and 368 of IPC, the accused persons were charged under Sections 364-A and 368 of IPC by the trial court vide order dated 09.06.2009. The record further depicts that when the amended charges under Sections 364-A and 368 of IPC were framed, it was submitted on behalf of the accused persons that they do not want to cross-examine the witnesses and an endorsement to this effect was made on the order sheet dated 09.06.2009 of the record of trial court. So far as this pure question of law is concerned whether the conviction of an accused can be altered from Section 364-A of IPC to one u/s 365 IPC, there are certain decisions of this Court wherein it has been held that such conversion in conviction is permissible under law. In Mahesh V State of UP Criminal Appeal No. 3647 of 2005 decided on 16.08.2016, this Court found that there was no evidence of ransom and the prosecution has failed to establish the essential ingredients of such demand as required under Section 364A of IPC. On the other hand, the offence alleged and proved against the appellants squarely falls within the ambit and purview of Section 365 of IPC. Accordingly, the conviction of appellants recorded by the trial court u/s 364A of IPC was altered and modified to one under Section 365 of IPC only. Similarly, in the case of Ashwani Dubey V State of UP Criminal APPEAL No. 7740 of 2006 decided on 10.08.2016, on the facts of similar nature, this Court taking similar view, has altered the conviction from Section 364-A of IPC to one u/s 365 of IPC. Thus, it is clear that if the ingredient of ransom is not proved but the evidence establishes the ingredients of sec 365 IPC, the conviction can be altered from Section 364-A of IPC to one u/s 365 IPC. Though, in those cases the issue of "ex-post facto laws" was not involved, but in view of the peculiar facts of the present case particularly, considering that the appellants have faced trial for the offence u/s 365/368 IPC and the charge was altered only after the evidence was led, the appellants cannot be given benefit of the alleged error in charge and if the evidence on record establishs charge u/s 365 IPC, they can still be convicted for the same.
28. Now it is to be considered whether the evidence on record satisfies the ingredients of Section 365 of IPC. The provisions of Section 365 of IPC reads as under:
''Kidnapping or abducting with intent secretly and wrongfully to confine person.
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''.
29. In the present case, there is a clear and categorical evidence of the kidnappee Aadeep Kumar that on 15.11.1987 when he was going to his sister's house, he was kidnapped by Anand Kumar alias Chhote, Ravendra Singh, Anand Kumar alias Chhote and thereafter, rest of the appellants also joined them and participated in his kidnapping and confinement. The kidnappee was taken to the house of accused-appellant Kalyan and was confined there for about two months. He was also made to write a letter to his father for ransom of Rs. 1,50,000/-. The version of PW 1, Aadeep Kumar is supported by other witnesses. All the witnesses have been subjected to cross-examination, but there is no major contradiction or infirmity in the evidence of the witnesses. After his release, PW 1 has even pointed out the alleged house, where he was kept in confinement. There is overwhelming evidence on record, which unmistakeably establishes that on 15.11.87, PW 1 Aadeep Kumar was kidnapped by the accused-appellants and was kept in confinement for two months. The evidence on record fulfills all the ingredients of Section 365 of IPC. In view of peculiar facts and circumstances of the case, there does not appear any hurdle in alteration of conviction of the appellants from Section 364-A of IPC to one u/s 365 IPC. A perusal of the provisions of Sections 364-A and 365 of IPC indicates that the mischief punishable u/s 365 IPC is a less aggravated form of the offence punishable u/s 364-A IPC. As stated earlier, the offence punishable under Section 365 of IPC is of same nature and specie and it prescribed less punishment than that of Section 364-A of IPC. As the entire prosecution evidence was led on the charges under Sections 365 and 368 of IPC, thus, no prejudice would be caused to the accused-appellants if their conviction is altered to under Section 365 of IPC. In view of all these facts and evidence on record, the alteration of conviction of the appellants from Section 364-A of IPC to Section 365 of IPC would not result into any prejudice to the accused-appellants. Learned counsel for the accused-appellants could also not dispute the above stated position of law. The evidence on record clearly makes out a case of kidnapping as punishable u/s 365 of IPC. Accordingly, we are of the firm opinion that the conviction of appellants recorded by the trial court under Section 364-A of IPC should be altered and modified to one under Section 365 of IPC only.
30. The conviction and sentence awarded by the learned trial court stands modified accordingly. As per the dictum contained in Section 365 IPC, the offence is punishable with imprisonment of either description for a term which may extend to seven years, coupled with fine.
31. In view of the above, the conviction and sentence u/s 364-A of IPC stand set aside and the appellants are convicted u/s 365 of IPC and are sentenced to the rigorous imprisonment of seven years and a fine of Rs 2000/- each, and in case of default in payment of fine, the appellants shall have to undergo additional rigorous imprisonment for one month. In this case, the appellants are stated to be in jail since last about ten years and thus, the appellants have already spent more than seven years of incarceration. Therefore, the respective period of imprisonment has already been undergone by the present appellants. The appellants are granted one month time to deposit the fine before the trial court after being released from jail. All the appellants be released forthwith, if they are not wanted in connection with any other case.
32. Appeal is partly allowed in above terms.
Dated: 06.03.2019
Anand
(Raj Beer Singh, J) (Pritinker Diwaker, J)