Madhya Pradesh High Court
Kamta vs The State Of Madhya Pradesh on 19 August, 2019
Equivalent citations: AIRONLINE 2019 MP 1065
Author: Sujoy Paul
Bench: Sujoy Paul
1.Cr.A.Nos.568/10 ,955/10,2904/11,422/12,
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. Cr.A.Nos. 568/10, 955/10, 2904/11 and
422/12,
Parties Name
Cr.A.No568 .of 2010
Ravindra Shukla @ Mukesh
Vs.
State of M.P.
Cr.A.No.955 of 2010
Balram @ Langda @ Chillu
Vs.
State of M.P.
Cr.A.No.2904 of 2011
Kamta
Vs.
State of M.P.
Cr.A.No.422 of 2012
Kallu alias Laxmi
Vs.
State of M.P.
Date of Judgment 19/08/2019
Bench Constituted Division Bench
Judgment delivered by Justice Sujoy Paul and Justice
B.K.Shrivastava .
Whether approved for reporting
Name of counsels for parties For Appellant: Shri Sankalp Kochar and
Shri Abhilash Dey, Advocate.
For respondent : Shri Brandavan Tiwari,
Govt.Advocate
Law laid down
Significant paragraph numbers
JUDGMENT
(19-08-2019) Per : Sujoy Paul J.
This judgment will dispose of Cr.A.No.568/10, 955/10, 2904/11 and
2.Cr.A.Nos.568/10 ,955/10,2904/11,422/12, 422/2012. Since the court below passed the impugned judgment dated 09.03.2010 and 01.10.2011 which are arising out of a common incident; on the joint request of the parties, these appeals were analogously heard and decided by this common judgment.
Cr.A.No.568/2010 and Cr.A.955/2010 :
2. These criminal appeals are directed against the common judgment of court below dated 09.03.2010 passed in S.T.No.228/08 and 229/08. The court below found that offences under section 364-A and Section 365 IPC were committed by the appellants and accordingly directed them to undergo R.I. for life with fine and R.I. for four years with fine respectively. The appellants were exonerated from the offence under section 400 of IPC.
3. Briefly stated, the story of prosecution is that in the evening of 12.01.2008, complainant Rameshwar Patel and Rammilan Patel after closing their shops at Loundi were going back to their village Devpur on their bycycles. Around 07:30 p.m., when they reached near Devpur pond, seven persons caught hold of them. They took them to some distance.
They released Rameshwar Patel in the midway and took Rammilan Patel to an unknown place. Rameshwar Patel approached Badri Patel, Headman of Rajapur Village on the same night and apprised him about the said incident. In turn, Badri Patel informed about the incident to Bhuwanideen Patel and to local Police Station. Bhuwanideen Patel, Badri Patel and a journalist Putresh Tiwari informed the police and in turn Police took Rameshwar Patel to Police Station, Loundi and FIR was registered at around 11:00 p.m. on 12.01.2008. The offence under Section 365 IPC were registered vide Crime No.17/08. Investigating Officer visited the place of incident on 13.01.2008, prepared a spot map and seized both the bicycles on which Ramilan Patel and Rameshwar Patel were traveling. On the same day, statements of Rameshwar Patel, Sudershan Patel, Badri s/o Prabhudayal, Narayan Patel, Bhuwanideen, Lallu Prasad and Badri s/o Sundershan Patel were recorded.
4. The accused persons kept Rammilan in their custody for six days. During this period, the accused persons called Badri Prasad (brother of Rammilan) on his phone and demanded Rs.15,00,000/- as ransom. On
3.Cr.A.Nos.568/10 ,955/10,2904/11,422/12, 18.01.2008, during an encounter between accused persons and police in Srinagar(UP), the accused persons removed the blindfold from the eyes of Rammilan. During this encounter, Rammilan had seen the accused persons for sufficient time and could gather their names during their conversation. The accused persons fled away during encounter by leaving Rammilan Patel in the jungle of Srinagar. The police recovered Rammilan from the said place and was taken to Police Station, Srinagar from where he was taken to Police Station, Loundi. On 19.01.2008, FIR at the instance of Rammilan No.20/08 was registered in Police Station, Loundi. Rammilan was handed over to his brother Badri Prasad by preparing a "Panchnama". On the same day, the investigating officer reached the place of incident and prepared a spot map. In addition, he recorded the statement of Rammilan and Shivram Soni. The statements of Kamta Prasad Soni and Ramlakhan were recorded by him on 26.01.2008 and 30.01.2008. Rammilan narrated that he came to know about the names of accused persons because of their conversation. On the strength of this information, on 09.05.2008 Ravindra Shukla was arrested. On the basis of aforesaid two FIRs. registered by Rameshwar and Rammilan respectively, two criminal cases No.541/2008 and 542/2008 were registered in the Court of Judicial Magistrate First Class, Loundi. In turn, the said cases were committed for trial and were re- registered in the Sessions Court as Case No.228/2008 and 229/2008.
5. During the trial of Ravindra Shukla, other accused persons Kallu @ Karelal and Balram @ Langda were arrested on 28.03.2009 and 11.05.2009, respectively. Accordingly, two supplementary charge-sheets were filed and; in turn, their cases were transferred to the same Sessions Court for conducting joint trial. Since both the trials were arising out of same incident and accused persons preferred an application on 08.04.2009 for conducting joint trial, the Sessions Court consolidated both the sessions cases No.228 and 229/2008 and decided the same by common judgment impugned herein.
6. The accused persons abjured the guilt. Ravindra Shukla took the defence that previously he used to reside as a tenant in the house of Ajay Singh, a relative of Constable Jeet Singh. A quarrel took place on a petty
4.Cr.A.Nos.568/10 ,955/10,2904/11,422/12, issue because of which Jeet Singh's wife threatened him. Since Jeet Singh is a cop, he is being falsely implicated by the prosecution. Kallu @ Karelal stated that in the murder of Dawan Yadav, names of his family members were added as accused persons. He left the village and started residing in Village Semra. Police has falsely implicated him in the instant case and in many other cases.
7. The Court below recorded the evidence of the parties. By impugned judgment, the present appellants were held guilty under Section 364-A and 365 of IPC. The impugned judgment is called in question in these appeals by the appellants.
8. Shri Sankalp Kochar and Shri Abhilash K. Dey, learned counsel for the appellants contended that the conclusion drawn by court below is clearly erroneous. There is no credible evidence on record to bring home the charges under Section 364-A and Section 365 of IPC. To elaborate, Shri Kochar argued that necessary ingredients to establish an offence udner Section 364-A of IPC were not available in the instant case. By taking this court to the statement of Rammilan and his brother Badri Prasad, it is argued that neither demand of ransom nor any threat to cause death or harm Rammilan could be established by the prosecution. The cell phone allegedly used by accused persons for demanding ransom from Badri Prasad was not recovered and produced before the court below. No call details could also be produced to establish that any such conversation had taken place between accused persons and Badri Prasad, brother of Rammilan. Badri (P.W.6) has not deposed anything about the phone call demanding ransom to release his brother. There are glaring contradictions in deposition of Rammilan and Badri Prasad. The alleged singular conversation through cell phone had taken place on different dates, if the statement of said two witnesses were read conjointly. Hence, no offence under Section 364-A of IPC could be established. Reliance is placed on 2018 SCC Online Bom 61 (Lalit Vilasrao Thakre vs. State of Maharashtra), 2004 (8) SCC 95 (Malleshi vs. State of Karnataka), unreported judgment of Chhattisgarh High Court in Cr. Appeal No.618/2002 (Parvez Khan and others vs. State of C.G. And others), ILR
5.Cr.A.Nos.568/10 ,955/10,2904/11,422/12, 2001 (1) Delhi 241 (Netrapal Vs. NCT of Delhi) and a Division Bench judgment of Gwalior Bench of this Court in Cr. Appeal No.625/2015 (Rajjan Vs. State of MP). In addition, 2007 (5) SCC 634 (Suman Sood vs. State of Rajasthan) was relied upon to show that demand of ransom was not established at all.
9. By taking this court to para 12 of judgment of Malleshi(Supra), it is urged by learned counsel for the appellants that three necessary ingredients to attract Section 364-A have not been establish. The prosecution failed to established (a) accused persons kidnapped/abducted, Ramilan and Rameshwar, (b) said two persons were kept under detention after such kidnapping and abduction and (c) kidnapping and abduction was for ransom. No spot map was prepared or produced by prosecution before the Court below to show the places where Rammilan was kept by accused persons during six days. It is highly improbable that accused persons will keep Rammilan blind-folded for six days and will open it on the last date. Ordinarily, during interaction, the villagers call each other either by nick name or by the first name. They never call one another by their complete name and place of resident. The complete names of accused persons taken by Rammilan shows that it is an afterthought. No test identification parade (TIP) was conducted soon after the incident of alleged abduction and; therefore, story of prosecution is untrustworthy. The Constable remained present during TIP which was belatedly conducted. It seriously affects the purity and fairness of the TIP. The place of abduction, the place/places where abductee was allegedly kept and place of release were not established with necessary details. Reliance is placed on 2007 (2) SCC 310 (Amit Singh Bhikam Singh Thakur vs. State of Maharashtra) in this regard.
10. The further submission of learned counsel for appellants is that there is a long time gap between the date of incident of abduction/release and the statement recorded in the Court/TIP. By that time, the complainant Rammilan must have forgotten the features of accused persons. He had a fleeting glimpse of accused persons at the time of his release in the jungle of Srinagar(UP). The delay in holding TIP is a stricking feature which
6.Cr.A.Nos.568/10 ,955/10,2904/11,422/12, makes prosecution story unreliable. Rammilan has not mentioned about any special feature/body-mark on the accused persons with the help of which he could have identified them after a long time. Thus, story of prosecution is not reliable and should have been discarded by the court below.
11. It is common ground taken by learned counsel for the appellants that for the same reasons mentioned herein above, no case is made out to establish the offence under Section 365 IPC. Prosecution has miserably failed to make out a case beyond reasonable doubt under both the sections namely; 364-A and 365 IPC. The alternative argument of Shri Kochar and Shri Dey was that in any case, offence under Section 364-A could not be established because as per deposition of Rammilan, he had not received any threatening from accused persons which may attract Section 364-A IPC. The factum of demand of ransom also could not be established. The sentence imposed by the court below under Section 364-A is thus, liable to be interfered with. The sentence imposed for Section 365 (four years) has already been undergone by the appellants and, therefore, they may be directed to be released forthwith.
12. Shri A.K. Dey, learned counsel for the appellants argued that in the statement of Rammilan recorded under Section 161 Cr. P.C., he has not narrated about any conversation regarding demand of ransom between him and his brother Badri Prasad. This makes the court's statement of Rammilan highly doubtful and conviction of appellants on the strength of this statement is a travesty of justice.
13. Per contra, Shri Vrindawan Tiwari, learned Government Advocate for the State supported the impugned judgment. It is urged that even if demand of ransom is not conveyed to some other person, it does not take away the offence out of the purview of Section 364-A of IPC when Rammilan has categorically deposed about demand of such ransom by accused persons. Interestingly, Shri Tiwari also placed reliance on certain paragraphs of the judgment of Malleshi(Supra). He also supported the reasoning given by Court below in the impugned judgment.
14. Parties confined their arguments to the extent indicated above. We
7.Cr.A.Nos.568/10 ,955/10,2904/11,422/12, have heard the parties at length and perused the record.
15. Before dealing with the rival contentions of the parties, it is apposite to refer to section 362, 364-A and 365 of IPC which read as under :-
"362. Abduction.--Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. 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.
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."
(Emphasis supplied)
16. The Apex Court in its authoritative pronouncement in the case of Malleshi (supra) opined that in order to attract section 364-A what is required to be proved is; (i) The accused kidnapped or abducted the person,
(ii) kept him under detention after kidnapping and abduction and (iii) that the kidnapping of abduction was for ransom.
17. Apart from this, a plain reading of section 364-A further shows that after kidnapping or abduction, existence of element of threat to cause death or hurt to abductee or presence of such circumstance and evidence which shows that the conduct of abductors has given rise to a reasonable apprehension that such abductee may be put to death or get hurt in order to compel any person to pay ransom etc, are necessary ingredients.
18. The first question in the light of aforesaid principle is whether in the instant case the prosecution has satisfactorily proved that offence under
8.Cr.A.Nos.568/10 ,955/10,2904/11,422/12, section 364-A of IPC has been committed by the appellants. Rammillan (P.W.1) in his deposition stated that he was abducted on 12.01.2008 and was released on 18.1.2008. He was kept blind-folded during the entire period between 12.1.2008 to 18.1.2008. On 18.1.2008 only his blind fold was removed. He categorically deposed that on the date he was abducted, in the same night ransom was demanded by the appellants on telephone from his brother Badri Prasad.
19. The brother of Rammillan, namely, Badri Prasad Patel (P.W.6) in his deposition nowhere stated regarding receiving of any phone call demanding ransom from the accused persons. As per prosecution story, Rameshwar (P.W.2) turned hostile. Pertinently, Rammillan and Rameshwar both were abducted by accused persons. Rameshwar was released on the date of abduction itself after sometime but Rammillan was released on 18.1.2008.
20. Pausing here for a moment, it is unworthy that learned counsel for the appellants have taken pains to attack the investigation procedure adopted by the prosecution. In the manner Test Identification parade (TIP) was conducted, the common ground raised was that TIP and consequent investigation is vitiated. We do not see any merit in this contention in the factual backdrop of the present case. In the instant case, all the accused persons could not be arrested immediately. For example, when impugned judgment dated 09.03.2010 was passed, accused persons, namely, Kala @ Kallu, Pinku @ Vijay Soni, Millu @ Naresh Shukla and Kamta Prasad were absconding. Appellants Kallu @ Laxmi and Kamta were arrested on 29.10.2009 and 26.04.2009 respectively. Hence, the circumstance were beyond the control of prosecution which occasioned delay in conducting the TIP. Thus, in the light of judgment of Amit Singh (supra), we are unable to hold that delay in conducting TIP has vitiated the case of the prosecution.
21. The statement of Rammillan (P.W.1) further shows that he has not deposed that the appellants had given him any threat to cause death or hurt. He has not deposed whether circumstances during abduction were of a nature which gives a reasonable apprehension that he may be put to death
9.Cr.A.Nos.568/10 ,955/10,2904/11,422/12, or hurt. The circumstance which creates atmosphere which leads to an impression that the entire exercise of abduction is for payment of ransom, were also not established.
22. Apart from this, the prosecution has not seized the cellphone from the appellants by which ransom was demanded. No call details were produced. In almost similar circumstance, the Bombay High Court in Lalit Vilasrao Thakare Vs. The State of Maharashtra-2018 SCC Online Bom- 61 opined as under :-
"27. The evidence to corroborate the oral version of the witnesses about the actual threats to cause injury to the victims and the demand for ransom of Rs.,1,50,000/- could have been collected and produced by the prosecution. The prosecution has failed to do this. The solitary statement of P.W.6 Aniruddha, the father of Samyak, that Lalit conveyed him on phone "to pay an amount of Rs.1,50,000/- otherwise he will kill Samyak" cannot be relied upon to convict the accused. The Sessions Court, therefore, criticizes the prosecution for not seizing the mobile phones of the victims as well as the parents of P.W.4 Samyak and that of the accused persons. The Sessions Court also criticizes the prosecution for not collecting the call detail reports of mobile phones, but, on the contrary, holds that the Investigating Officer seems to be highly inefficient or that he did so deliberately to help the accused. There is no evidence produced on record to establish the direct threat to cause death or hurt to the victims while in captivity so as to compel them or any other person to pay ransom.
29. In view of above, we have no hesitation to hold that the prosecution has failed to establish that there was a direct threat to cause death or hurt to the victims while in captivity, or the conduct of the accused was such as give rise to a reasonable apprehension that they may put the victims to death of hurt, or that the hurt was actually caused to the victims by the accused. There is a failure to establish the intention of the accused to demand ransom for release of the victims beyond reasonable doubt. We, therefore, cannot sustain such findings recorded by the Sessions Court."
(Emphasis supplied)
23. In the case of Lalit Vilasrao Thakare (supra), the trial court criticized the prosecution for not seizing the mobile phone by which
10.Cr.A.Nos.568/10 ,955/10,2904/11,422/12, ransom was demanded. The trial court disbelieved the solitary statement of P.W.6 where he deposed that an amount of Rs.1,50,000/- was demanded as ransom. The statement was disbelieved in absence of seizure of mobile phone and production of call details. In absence of any clinching evidence produced on record to establish the direct threat to cause death or hurt to victim while in captivity, the trial court opined that necessary ingredients to attract section 364-A are not available. The said finding of the trial court got stamp of approval by the High Court. In our considered opinion, the said judgment is squarely applicable in the factual backdrop of the present case.
24. The Delhi High Court disbelieved the story of the prosecution in Netrapal (supra) because there was no corroborative piece of evidence to establish that there was a phone call and ransom was demanded. The Gwalior Bench in the case of Rajjan (supra) opined that the factum of ransom having been demanded/paid or accepted, is required to be established. Since there was no evidence to show that during the period of confinement, the abductee was put to any threat of death or hurt or were put to a reasonable apprehension that death or hurt would be caused, section 364-A cannot be pressed into service. This judgment, in our opinion, is squarely applicable to the present case. At the cost of repetition, it is worth noting that the prosecution has miserably failed to establish that during the period of abduction/ confinement, Rammillan was subjected to any threat or apprehension etc. which is an essential element for establishing an offence under section 364-A of IPC. The statement of Rammillan does not inspire confidence so far demand of ransom is concern. In view of foregoing analysis, we have no scintilla of doubt that the court below has erred in holding the appellants guilty under section 364-A of IPC.
25. As per section 365 of IPC, kidnapping or abduction of any person with intent to cause that person to be secretly and wrongfully confined, is punishable. The statement of Rammillan (P.W.1) could not be demolished during extensive cross-objection that he was abducted with Rameshwar. He was wrongfully confined by appellants between 12.1.2008 to 18.1.2008
11.Cr.A.Nos.568/10 ,955/10,2904/11,422/12, was also satisfactorily established. The prosecution has produced credible evidence to show that during encounter in forest on 18.1.2008, the accused persons fled away by leaving the abductee Rammillan. Rammillan was recovered from the forest of Srinagar (UP) and was then taken to Loundi (M.P). Thereafter, he was handed over to his brother Badri Prasad. Rammillan identified all the appellants. He had seen the appellants for about 1 1/2 hour on 18.1.2008. He had not seen them for few minutes or few seconds. He had seen them for sufficient period and, therefore, we are unable to persuade ourself with the argument of Shri Kochar that in absence of disclosing special features and identification marks etc. of appellants, the statement of Rammillan is not trustworthy. In view of this discussion, in our view, the court below has not committed any error of law in holding the appellants as guilty under section 365 of IPC.
26. Apart from this, as noticed above and canvassed by learned counsel for the appellants it is clear that all the appellants were directed to undergo R.I four years with fine for committing offence under section 365 of IPC and all of them have already undergone this part of sentence.
27. In view of above discussion, the prosecution could not establish it beyond reasonable doubt that appellants Kamta, Ravendra Shukla and Balram committed offence under Section 364-A of IPC. Thus, appellants, Kamta, Ravindra Shukla and Balram @ Langda are acquitted from offence under section 364-A of IPC. However, their conviction under section 365 of IPC is upheld. The impugned judgment dated 09.03.2010, to the extent appellants were held guilty under section 364-A of IPC, is set aside. If all the appellants have undergone the R.I. of four years arising based on their conviction under section 365 IPC and their presence in jail is not required in any other offence, they shall be released forthwith. These appeals are accordingly partly allowed to the extent indicated above. Cr.A.No.2904/2011 and Cr.A.No.422/2012 :
28. These criminal appeals are directed against the common judgment of court below dated 1.10.2011 passed in S.T.No.228/08 and 229/08. The appellants were held guilty for committing offences under section 364-A and 365 of IPC and directed to undergo R.I for life with fine and R.I.4
12.Cr.A.Nos.568/10 ,955/10,2904/11,422/12, years with fine respectively.
29. These appeals are founded upon the same factual backdrop of abduction of Rameshwar Patel and Rammillan Patel on 12.1.2008. The prosecution story is almost same in the present case and, therefore, same is not required to be repeated. It is required is to be examined whether in these matters prosecution has led credible evidence before the court below which establish offence under section 364-A and 365 of IPC.
30. Rammillan (P.W.5) entered the witness box and categorically deposed that he was abducted by accused persons on 10.1.2008. On the next day, the accused persons compelled him to call his brother Badri Prasad by cell phone and they demanded Rs.15,00,000/- as ransom. Pertinently, he has not made any statement that at any point of time during confinement, he was put to threat or hurt or put to reasonable apprehension that death or hurt would be caused to him. During cross-examination, Rammillan (P.W.5) stated that his brother Badri Prasad did not have any mobile phone. Indeed, he has a landline phone. He could not state the number of landline phone during cross examination. In the statement of Rammillan recorded under section 161 Cr.P.C, he did not mention about any such phone call being made for ransom by the accused persons during his confinement.
31. Badri Prasad (P.W.3), during examination-in-chief deposed that he received the phone call for ransom on 13.1.2008. He did not report this incident to police at all.
32. The prosecution, in this case also has not produced the cell phone which is allegedly used for demand of ransom nor they could produce any call details. There are serious material contradictions regarding date of demand of ransom as per statements of Rammillan and Badri Prasad. The statement of Rammillan regarding demand of ransom is not trustworthy because he was not able to tell the landline number of his brother. If during confinement when he was under full of stress, he could remember and tell the landline number to the appellants, it is difficult to believe that he had forgotten the same phone number during his cross examination in the court when he was in a protected and safe atmosphere. The prosecution
13.Cr.A.Nos.568/10 ,955/10,2904/11,422/12, has failed to establish that appellants have threatened Rammillan to cause death or to cause hurt. No circumstances were established which give rise to a reasonable apprehension to Rammillan that he will be put to death or hurt in relation to demand of ransom. On the strength of this kind of statement of Rammillan, it is highly unsafe to upheld the conviction of appellants under section 364-A of the IPC. Hence conviction of appellants under section 364-A of the IPC deserves to be quashed. The statement of Rammillan shows that appellants abducted him and kept him in their custody for a considerable long time. The other evidence shows that Rammillan was recovered from forest of Srinagar and was taken to Loundi from where he was handed over to his brother Badri Prasad. Rammillan identified the appellants of this case in the court. The story of abduction narrated by Rammillan could not be demolished during cross examination. Thus, in our view, prosecution has satisfactorily and beyond reasonable doubt established that offence under section 365 has been committed by the appellants.
33. In view of foregoing analysis, the judgment of court below dated 1.10.2011, to the extent appellants were held guilty under section 364-A, cannot be upheld. The judgment aforesaid, to this extent, is set aside. The findings of court below whereby appellants were held guilty under section 365 of IPC deserves to be and is accordingly upheld. As a consequence, it is directed that if appellants, namely, Kamta and Kallu alias Laxmi have already undergone R.I. for four years arising out of their conviction under section 365 of IPC and their presence in jail is not required in any other case, they shall be released forthwith. Accordingly, these appeals are partly allowed to the extent indicated above.
(Sujoy Paul) (B.K.Shrivastava)
Judge Judge
MKL
Digitally signed by MANOJ
KUMAR LALWANI
Date: 2019.08.20 12:39:55
+05'30'
14.Cr.A.Nos.568/10 ,955/10,2904/11,422/12,