Kerala High Court
Suresh @ Sura vs State Of Kerala on 25 February, 2020
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941
CRL.A.No.465 OF 2015
AGAINST THE JUDGMENT IN SC 80/2010 DATED 10-04-2015 OF II
ADDITIONAL SESSIONS COURT,THODUPUZHA
APPELLANTS/ACCUSED NO.6 AND 7:
1 SURESH @ SURA
AGED 33 YEARS
S/O.KUNJUMON, PUTHANPURACKAL HOUSE, AMARAVATHI
KARA, KUMILY VILLAGE, IDUKKI DISTRICT.
2 RATHEESH, AGED 31 YEARS,
S/O.GOVINDAN, PUTHANPURACKAL HOUSE, ATTAPALLAM
KARA, KUMILY VILLAGE, IDUKKI DISTRICT
BY ADVS.
SRI.SEBASTIAN PAUL
SRI.RON BASTIAN
SMT.SABEENA P.ISMAIL
RESPONDENT/STATE/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM-682 031, (CRIME NO.290/2008
OF IDUKKI POLICE STATION, IDUKKI DISTRICT).
SR.P.P- SRI. S.U.NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-
08-2019, ALONG WITH CRL.A.474/2015, THE COURT ON 25-02-2020
DELIVERED THE FOLLOWING:
Crl.Appeal Nos.465 & 474/15
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941
CRL.A.No.474 OF 2015
AGAINST THE JUDGMENT IN SC 80/2010 DATED 10-04-2015 OF II
ADDITIONAL SESSIONS COURT,THODUPUZHA
AGAINST THE ORDER/JUDGMENT IN CP 8/2010 OF JUDICIAL
MAGISTRATE OF FIRST CLASS - I, IDUKKI
CRIME NO.290/2008 OF Idukki Police Station, Idukki
APPELLANT/8TH ACCUSED:
SABU
S/O.THANKAPPAN, MOODITHANAM (H), ATTIYARPURAM,
KARA, PAMPADUMPARA VILLAGE, IDUKKI DISTRICT.
BY ADVS.
SRI.GRASHIOUS KURIAKOSE (SR.)
SRI.GEORGE MATHEWS
RESPONDENT/COMPLAINANT:
STATE OF KERALA
CIRCLE INSPECTOR, IDUKKI POLICE STATION,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
R1 BY SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-
08-2019, ALONG WITH CRL.A.465/2015, THE COURT ON 25-02-2020
DELIVERED THE FOLLOWING:
Crl.Appeal Nos.465 & 474/15
-:3:-
JUDGMENT
Dated this the 25th day of February 2020 Shaffique, J.
Crl.Appeal No.465/2015 is filed by accused Nos.6 and 7 and Crl.Appeal No.474/2015 is filed by 8 th accused challenging the conviction and order of sentence passed by the II nd Additional Sessions Court, Thodupuzha in SC No.80/2010. By the impugned judgment, accused 6 to 8 were sentenced to undergo imprisonment for life and to pay a fine of `25,000/- each for offence u/s 364 A r/w 34 I.P.C., in default, to undergo rigorous imprisonment for one year each. Accused 6 to 8 were also sentenced to undergo rigorous imprisonment for 6 months each for offence u/s 342 r/w 34 IPC. No separate sentence were passed for offence u/s 506(1) in view of the punishment imposed u/s 364 A of IPC. The sentence of imprisonment were directed to run concurrently. The fine amount, if realised, was directed to be paid as compensation to PW2. Set off was allowed subject to S.433 of Cr.P.C.
Crl.Appeal Nos.465 & 474/15 -:4:-
2. The case of the prosecution is that, on account of the animosity between PW3 and first accused, the accused hatched a conspiracy to abduct the son of PW3 for ransom. They contacted PW2 and misrepresented that they are friends of his father. On 27/8/2008 at 7.30 p.m, accused 5 to 8 met PW2 and thereafter abducted him in a Wagon R car. They threatened to kill him and detained him throughout the night and demanded `30 lakhs as ransom from his father. When the news of abduction appeared in T.V. flash news, the accused released PW2. Thereafter, they destroyed the mobile phones used by them in order to eliminate evidence against them. Thus the accused were charged for offences under Sections 120B, 201, 364A, 468, 471, 506(1) r/w 34 I.P.C.
3. The case was originally filed before the Judicial First Class Magistrate Court I, Idukki, which was committed to the Court of Sessions, Thodupuzha and made over to II nd Additional Sessions Court, Thodupuzha.
4. To prove the case, prosecution examined PWs 1 to 30 and marked Exts.P1 to P44 and MO1 to MO3 were produced and identified. Defence examined DW1 and marked Ext.D1. Crl.Appeal Nos.465 & 474/15 -:5:-
5. Learned counsel for the appellant argued that the evidence in the case is not sufficient enough to convict the accused in so far as no harm had been caused to the victim at the hands of the appellant herein and the ingredients of the offence has not been made out. Therefore, the trial court was not justified in convicting the accused.
6. On the other hand, learned Public Prosecutor argued that evidence of the victim supported by the evidence of his father and the evidence of PW1 who had given the FIS were sufficient enough to prove that the victim was kidnapped and his life was put in danger of being murdered. Further, sufficient corroborative evidence was collected by the investigating officer to prove the facts as deposed by PW2 and PW3 and therefore, there is no reason to interfere with the aforesaid finding of guilt.
7. Before proceeding further, let us briefly analyse the evidence of PW1, PW2 and PW3. PW1 is a friend of PW2. They were studying in the Engineering College and residing in the same hostel. He deposed that he had given the FIS, Ext.P1 to the police stating that PW2 was missing on 27/8/2008. They were residing as paying guests in a building belonging to PW4. On Crl.Appeal Nos.465 & 474/15 -:6:- 27/8/2008, by about 7.30 p.m, while they were playing, PW2 received a call in his mobile and he informed PW1 that one Sabu chettan from Kattappana had called him. They wanted to arrange a hostel for a junior. PW2 proceeded towards them. After some time, PW2 came back stating that he is going to 'Xman' hostel along with them which is half a km away and PW2 proceeded with them. He also stated that Sabu chettan and a few others had come with a car. By about 8.30 p.m, PW2 called him and stated that he was at Cheruthony. Thereafter, at 10.30 p.m, PW3, who is the father of PW2 called him and told him that when PW3 called PW2, some one else had attended the phone and he was asked to enquire about it. PW1 immediately called PW2, who said that they were having food at Cheruthony. He informed the said matter to PW3. PW3 asked him to go along with warden and enquire about it. He along with PW4 proceeded to Cheruthony and made enquiries. They did not see them. Again he called PW2 over mobile, but the phone was switched off. He called Xman's hostel. He was informed that, at about 8.00 o' clock, PW2 along with another person had come. They were there for 5 minutes and thereafter they went away from the said place. PW1 called his Crl.Appeal Nos.465 & 474/15 -:7:- hostel friends to Cheruthony. They enquired in all the places and they did not get any information. He informed PW3 about the same and thereafter a man missing case was given to the police. Though the counsel for the accused has withdrawn his brief on the said day and Court has given an opportunity to cross examine him, there was no cross. Accused 1 to 4 also sought for adjournment and Court did not grant time. Recording that there was no cross-examination, evidence was closed.
8. PW2 was also examined on the very same day. He deposed that while they were playing caroms, by about 7.30 p.m on 27/8/2008 at the house of PW4, a person called him stating that he is an employee of Sabu sir. His mobile number was 9961633483. He was told that they have to arrange a hostel for a new student who got admission and they were near his house and that they knew his father. He called his father, but father did not know them. Since they were from his locality, his father asked him to give them necessary assistance. They came in a black Wagon R car. He knew a person whom he had met at Cheruthony. He identified him as A6. A6 informed him that his name is Sudheesh. He asked PW2 about the hostel and Xman's hostel. Crl.Appeal Nos.465 & 474/15 -:8:- There were three other persons, A5, A7 and A8 along with A6. He identified them. They insisted that he should go along with them to Xman's hostel. He told his hostel mates that he was going to Xman's hostel to show them the place. He along with A5 to A8 proceeded to Xman's hostel in the Wagon R car. His friend CW9 was also at Xman's hostel. They enquired about the hostel with them and came back. While returning, when he was about to get down at a place where he was staying, A5 told him that they had not come to see the hostel. Then A6 covered his face with a coat, which he identified as MO1 and closed his mouth. They took his mobile phone. A6 told him that quotation was given by a person with whom his father had partnership. If his father signs an agreement, he will be let free. A5 showed him a bottle of chloroform and stated that his life was in danger. He felt fear of death. Car was proceeding towards Kattappana. En-route, he was asked to call his hostel and tell them that he was at Cheruthony and that he will be back after some time. Accordingly, he called PW1 and informed him that he was at Cheruthony. That was at about 8.30 p.m. At that time, some one called the accused and asked him to ensure that the agreement is prepared without Crl.Appeal Nos.465 & 474/15 -:9:- delay. In the meantime, his father called over his phone. A5 handed over the phone to him and asked him to say that he was in a trap and that if he does not do as demanded, his life is in danger. Accordingly, he told his father what had been told by A5. He took back the phone. After some time, A6 got down from the car. The car went around and came back and by the time A6 had food with him. After having food, a call came from PW1. He was asked to say that they were having food at Cheruthony, which he did. After some time, his father's friend Francis called and he was asked to reply that there is no other problem. The car was taken to different places and they reached a tea plantation by night. Throughout the night, himself, A5 and A8 were sitting in the car. Next day at about 6 a.m, they reached a lodge in the car. After the early morning routine acts, he heard them talking that they demanded `30 lakhs from his father and that the news had come in television. In the meantime, he heard the discussion regarding dispute between two quotation teams. They came back in the car and when they reached Anakkara, he was asked to get down from the car and they told him that if he mentions about the incident to any person, they would kill him. They gave him back the Crl.Appeal Nos.465 & 474/15 -:10:- mobile phone. When he reached Kattappana, he switched on his mobile phone. At that time his friend Asha called. That was about 11.00 a.m. On the way, police was waiting for him. In the cross- examination for 8th accused, he deposed that he was not threatened or abused by A8. Further, when they put a coat on his head and covered his face, A8 questioned them. In the cross- examination of A6 and A7, he deposed that A7 was driving the car and he was taken in the car by giving a false statement. When his father called, he talked once. He talked to his local guardian Francis and a few others. Accused did not demand any money. They did not threaten him that he would be killed. After he was taken, there was no impropriety in their behaviour. In the night, A6 brought food and they had food. They stayed in a plantation during night. During night, they were talking about the abduction and they were telling by themselves that what they intended did not happen and he could be sent away in the morning. He was given `70/- and dropped near a bus stand.
9. PW3 is the father of PW2. He deposed that he called his son on the fateful day. He got a call on 27/8/2008 at about 10.24 p.m in his mobile number from mobile number Crl.Appeal Nos.465 & 474/15 -:11:- 9746712834 saying that his son was in their custody and if money is paid, he would be released. He called PW4 and he was informed that PW2 had gone out. He again called PW1 and asked him to enquire. Thereafter he received a call from phone no 9745996532. He was told that some one else will call after some time and he should do as demanded and that his son was in their custody. Phone was given to his son and he talked to him. His son told him that he was in trap and he was asked to do as per their demand. Immediately the phone was disconnected. Again a call came from the number 9746712834. He was asked not to inform the police and if so, his son's life will be danger. He gave the information to his friends and through them news came in TV channel. He informed the matter to PW1 who informed the police. He knew A1. They were neighbours. They were together in the politics. He had given some money while his mother's property was being attached. A1's mother gave a cheque which was dishonoured and on his complaint, she was convicted. Appeal was pending before the High Court and the incident happened at the relevant time. He was dismissed from the party. He used to write against the party members. A1 and A3 had a grudge Crl.Appeal Nos.465 & 474/15 -:12:- against him. A3 was the Branch Secretary. A1 to A4 were friends. In the cross-examination of A1 to A3, he admitted that he has no source to pay `30 lakhs. In the cross-examination of A6 to A8, he admitted that he did not know the person who demanded `30 lakhs. He further deposed that his son was in a trap but he did not say that he was under any danger. He was being threatened. He did not know A6 to A8. He had no relation with them.
10. PW4 was the owner of the building in which PW1 and PW2 were residing. He spoke in accordance with the deposition of PW1 and PW2. PW5 Omanakuttan deposed that on a particular day, in the year 2008, 4 persons came and he saw them bathing in the stream. He identified A5 and A6. He said that few others were there. He also identified A8. They asked for the key of the bathroom and he gave the key and proceeded towards the tea shop. After bath, Vinod collected `100/- from him. He did not remember the car in which they had come.
11. PW6 who was supposed to be the owner of the car turned hostile to the prosecution. PW7 who is supposed to have arranged the vehicle for A4 turned hostile to the prosecution. PW8 confirmed that PW2 had come and enquired about hostel on Crl.Appeal Nos.465 & 474/15 -:13:- 27/8/2008 at about 7.30 p.m. PW9 deposed that PW2 along with A6 and another person had come enquiring about the hostel facility. PW10 and PW11 turned hostile to the prosecution. PW12 is a witness to Ext.P8 scene mahazar. PW13 turned hostile to the prosecution. PW14 is a witness to Ext.P10 scene mahazar. PW17 is a witness to Ext.P16 scene mahazar. PW18 is a Civil Police Officer and a witness to Ext.P17 mahazar for recovering the call details. PW19 turned hostile. PW20 and PW21 are the witnesses to Ext.P20 recovery mahazar. PWs 22 and 23 are the witnesses in Ext.P21 mahazar. PW24 is a witness in Ext.P22 mahazar prepared for sim card. PWs 25 and 29 are the witnesses in Ext.P23 mahazar. PW26 is a Civil Police Officer who collected the call details of two phone numbers. PW27 has registered the crime based on Ext.P1 statement. PW28 is the Sub Inspector who arrested A4. PW30 is the Circle Inspector who conducted the entire investigation, recorded the statement of witnesses, arrested the accused, filed section alteration report, produced mobile phone, coat and SIM card seized from the accused and their house. After completing the investigation, he laid the final report.
Crl.Appeal Nos.465 & 474/15 -:14:-
12. The short question to be considered is whether the evidence of PW2 and PW3 would amount to an offence as contemplated u/s 364A of the I.P.C. S.364A reads 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 inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine".
13. From the nature of evidence adduced in the case, we do not think that the appellants in the case had threatened PW2, that he would be killed, or any harm would be caused to him. Though in the chief examination he deposed that he had fear of life, during cross examination, he admitted that the appellants did not behave badly towards him. PW2 was asked to tell PW3 that he was in a trap. The fact that he was kidnapped is evident from the evidence of PW2 supported by the evidence of PW1 and PW3. In the chief-examination, he had deposed that A5 had shown him a bottle stating that it was chloroform and that his life Crl.Appeal Nos.465 & 474/15 -:15:- is in danger. He feared death. But none of the appellants had told him that he would be murdered and no ransom had been demanded from his parents. He was asked to tell his father that his life will be in danger if his father does not do as demanded by them. However, during cross-examination of A8, he stated that A8 did not threaten him or abuse him and he did not like when the coat was put on his head to cover his face. During cross- examination of A6 and A7, he stated that for some time his face was covered and thereafter it was normal. The accused did not tell him that he will be murdered. After he was kidnapped, their behaviour was normal. During night, he heard a conversation between them that he should be let free next day morning. Even in the evidence of PW3, he states that though his son was kidnapped, he only said that he was in a trap and that he will have to do as they say and thereafter there was a demand for `30 lakhs and he was asked not to inform the police, failing which his son's life will be in danger. But PW3 has not identified the person who made such a demand.
14. The Trial Court proceeded on the basis that A6 to A8 had abducted PW2 for ransom and he was threatened which Crl.Appeal Nos.465 & 474/15 -:16:- caused fear of death. However, the common intention of accused 1 to 4 was not proved. A5 had absconded during trial. But, while considering the crucial aspect for an offence u/s 364A of I.P.C., it has to be considered as to whether the action of the appellants, amounted to (I) threatening to cause death or hurt; (2)or by their conduct gives rise to a reasonable apprehension that kidnapped person be put to death or hurt; (3) causes hurt or death of that person; (4) compelled any other person to do or abstain from doing any act or to pay ransom. It is clear from the evidence that none of the accused 6 to 8 had threatened PW2, that he will be murdered or any hurt would be caused to him. The only statement is that 5th accused showed him a bottle of chloroform and informed him that if he does not do what they say, his life will be in danger. The question is whether the appellants entertained a common intention with A5 either to threaten PW2 or to demand any ransom. As far as the appellants are concerned, there is no evidence that they have made any demand for ransom either to PW3 or to any other person. Though PW3 has given evidence that someone called him and demanded ransom, police could not locate the said person. Cross examination of the PW3 would Crl.Appeal Nos.465 & 474/15 -:17:- indicate that the appellants did not harm him or abuse him in any manner. From the available evidence, it is not possible to arrive at a finding that the appellants entertained a common intention to commit any offence under Section 364A of IPC. They have kidnapped PW2 under the dictate of some other person and let him free next day morning. Police was unable to unearth the conspiracy behind the kidnapping. Therefore, we do not think that this is a fit case in which appellants/accused could have been charged with an offence u/s 364A of I.P.C.
15. But, of course, there is evidence to prove that PW2 was kidnapped, as spoken to by PW2 and PW3, supported by PW1 and PW4, in which event, appellants are guilty for the offence u/s 365 of I.P.C.
"365. Kidnapping or abducting with intent secretly and wrongfully to confine person.--Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine" .
16. In Tarun Bora v. State of Assam [(2002) 7 SCC 39], Apex Court while considering a case where a victim was kidnapped by the accused, was blind folded taken away in an Crl.Appeal Nos.465 & 474/15 -:18:- Ambassador car and was confined to a house for three nights. It was held that the conduct of the accused fell within the mischief of S.365 of I.P.C.
17. In the case on hand as well, we are of the view that this is a case which falls u/s 365 read with Section 34 of IPC, and not u/s 364A in which event, the accused is entitled to be punished only for a sentence up to 7 years and also liable to fine.
18. The 8th accused was also part of the gang, but it was argued by the learned counsel for 8 th accused that he was totally against the said abduction in so far as he reacted sharply to the manner in which PW2 was taken. Of course, PW2 during cross- examination has stated that A8 had not threatened him nor abused him and he questioned the others what they were doing when a coat was put on his head to cover his face. According to the defence counsel, A8 was misled and he reached Cheruthony. But PW2 in his evidence stated that A6 along with A5, A7 and A8 were present when he was taken in the vehicle. Therefore, a common intention to kidnap him was very much there and it is not something which had developed immediately. If the idea of kidnapping PW2 was developed after visiting Xman's hostel, A8 Crl.Appeal Nos.465 & 474/15 -:19:- would have left the place immediately on stopping the vehicle. PW2 has not stated in his evidence that A8 had left the place immediately thereafter. To the suggestion that A8 had left the place at Puliyanmala, answer of PW2 was that he does not remember. In such circumstances, the complicity of A8 also cannot be ruled out.
19. The accused were also convicted for offence u/s 342 of I.P.C. Of course, the evidence available in the case clearly discloses that PW2 was wrongfully confined and therefore, there is no reason to change the said view.
In the result, these appeals are partly allowed as under:-
The conviction and sentence of the accused/appellants u/s 364A is set aside. They are convicted and sentenced to undergo imprisonment for a period of 5 years and to pay a fine of `25,000/- each for offence u/s 365 r/w 34 of I.P.C. In default of payment of fine, they shall undergo rigorous imprisonment for 1 year each. The conviction and sentence of the appellants u/s 342 r/w 34 I.P.C. is confirmed. The sentences shall run concurrently. The accused shall be entitled for set off, if any, in terms of Section 428 of Cr.P.C. If the accused had already suffered the Crl.Appeal Nos.465 & 474/15 -:20:- sentence, they shall be released forthwith, if their presence is not required in any other case.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
N.ANIL KUMAR
Rp True Copy JUDGE
PS to Judge
Crl.Appeal Nos.465 & 474/15
-:21:-