Allahabad High Court
Guddoo @ Nitin Singh vs State Of U.P. on 10 July, 2020
Equivalent citations: AIRONLINE 2020 ALL 1497
Bench: Govind Mathur, Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved/AFR In Chamber Case :- CRIMINAL APPEAL No. - 7617 of 2006 Appellant :- Guddoo @ Nitin Singh Respondent :- State of U.P. Counsel for Appellant :- Jagdish Singh Sengar, B.M. Pandey, Balendra Kumar Singh, D.K. Singh, H.V. Shastri, Mary Puncha (Sheeb Jose), Mohd. Kalim, Rajiv Lochan Shukla, Santosh Kumar Mishra, Sushil Kumar Dwivedi Counsel for Respondent :- Govt. Advocate Hon'ble Govind Mathur, Chief Justice Hon'ble Saumitra Dayal Singh, J.
(As per Saumitra Dayal Singh, J.)
1. This Criminal Appeal arises from the judgment dated 01.12.2006 passed by the Additional Sessions Judge, Fast Track Court No. 1, Fatehpur. The learned court below has recorded conviction of the accused appellant-Guddoo @ Nitin Singh for offence punishable under Section 364-A IPC. and sentenced him to undergo imprisonment for life. The learned court has also imposed fine of Rs. 10,000/- and in default thereof, provided the appellant would undergo additional rigorous imprisonment for one year. The appellant-Guddoo @ Nitin Singh is disclosed to be in jail since 09.06.2005, i.e. for last fifteen years.
2. The prosecution case is - on 02.04.2005, a missing person report was lodged by Suresh Kumar Sahu, PW-1 (paternal uncle of the victim) at the Police Station Khakhreru, District Fatehpur, reporting that his nephew Aman, aged about nine years, had gone missing while the latter had been riding a bicycle, in the village. His abandoned bicycle was found near Medipur village. More than two months after the said report had been lodged, the said Suresh Kumar (PW-1) made another written report at P.S. Khakhreru, on 09.06.2005. In that report, he made further allegations against still unknown miscreants - of demand of ransom. Personal clothes & slippers of the victim and, a ransom note were disclosed to have been received from unknown miscreants. The same were stated to be available with Rajesh Kumar (PW-3), father of the victim. On 09.06.2005 itself, the appellant-Guddoo @ Nitin Singh and another accused-Lala @ Digvijai Singh @ Rahul are said to have been arrested by the police of P.S. Dhoomanganj, District-Allahabad (now Prayagraj) and the victim recovered from their illegal custody, at a place described as jungle near the Military Farms, on the eastern side of Devprayagam Colony, in District Allahabad. The third accused Munna Singh is also claimed to have been named by the victim and also the accused persons Guddoo and Lala (upon their arrest), as being the third person involved in the kidnapping.
3. Upon completion of the investigation, appellant-Guddoo @ Nitin Singh, co-accused Lala @ Digvijai Singh @ Rahul and Munna Singh were charged for offence under Section 364-A IPC. They pleaded not guilty and were hence tried.
4. At the trial, four written notes demanding ransom were made exhibits. These were sought to be proved by the first informant Suresh Kumar (PW-1). Also, the said Suresh Kumar as also the victim child Aman (PW-2) were examined for ocular evidence alongwith Rajesh Kumar, the father of the victim who was also examined as PW-3. All three witnesses generally supported the prosecution story. PW-1 and PW-2 were put through extensive cross-examination, wherein it came out that neither any of the ransom notes were received by either of them directly nor they had received any phone call on their personal phones/mobile phones demanding any ransom amount, nor they had received such demand directly, from any of the accused persons, through any other mode. On the contrary, Suresh Kumar (P.W.-1) stated that certain personal clothes, slippers and the first ransom note were received by a relative of PW-1, namely Shiv Mangal Sahu, on 19.04.2005 from two unknown persons. The second ransom note was again claimed to have been received by the said Shiv Mangal Sahu being a letter dated 13.05.2005 received through registered post, on 19.05.2005. A third ransom note dated 06.06.2005 is also stated to have been received through Shiv Mangal Sahu. A ransom demand is also stated to have been made during certain telephonic conversation on the mobile phone of the village 'Pradhan' Narpat Singh. Further, according to the prosecution, yet another ransom note was received by the family of the victim child through one Budul Yadav, inside a wedding invitation card. However, none of the aforesaid three persons was examined as a prosecution witness. Suresh Kumar (PW-1) also clarified that the ransom notes were first produced before the police authorities on 9.06.2005, after the victim child had been recovered and that Narpat Singh had informed him about the phone call received on his mobile phone, to demand ransom prior to 09.06.2005. Then, of his own, he appears to have added that an information had been received on the mobile phone of Narpat Singh regarding demand of ransom and that he (PW-1) had spoken to the abductors on the mobile phone of Narpat Singh.
5. At the same time, Rajesh Kumar (PW-3), who is father of the victim, stated that he was informed on 08.06.2005, that the victim child had been recovered. He reached P.S. Dhoomanganj, Allahabad on 09.06.2005 in the morning and stayed back at Allahabad on 09.06.2005 and gained custody of the victim child on 10.07.2005. He also specifically stated that he was very familiar with the voice of the present appellant-Guddoo @ Nitin Singh, and the co-accused-Lala @ Digvijai Singh @ Rahul as they were known to him from before the incident, yet, during his cross-examination, he had clarified that during his telephonic conversations with the abductors, he could recognise only the voice of his son but not of the abductors. Also, during cross-examination, he specifically stated that the victim child was 'chanchal' and that when the child could not be found, he (PW-1) had stated before the police inspector that he believed that the child had probably gone to some relative (without informing him).
6. Insofar as the recovery of victim is concerned, the testimony of police personnel is consistent and categorical, that the present appellant had been apprehended by the police personnel of P.S. Dhoomanganj, District Allahabad on 09.06.2005, on a tip off received from certain local children - of a child being held in captivity at a place described as the jungle adjoining the Military Farms, near Devprayagam - a residential colony, in Allahabad. It was also sought to be established that the demand of ransom of about Rs. 5 lacs was made, of which Rs. 70,000/- had been paid in cash, a part of which is claimed to have been recovered from the appellant at the time of his arrest.
7. In defence, the appellant doubted the prosecution story on every aspect and it was claimed that he had been falsely made accused on account of certain pre-existing disputes between the families of appellant-Guddoo @ Nitin Singh and the village 'Pradhan' Narpat Singh, with whom the family of the victim was close inasmuch as PW-3 Rajesh Kumar (father of the victim) admitted to have helped the said Narpat Singh during his election as the village 'Pradhan'. Also, it was suggested (during the cross examination of PW-1), that the appellant's family held a very large agricultural holding exceeding 100 bighas, whereas the agricultural holdings of the family of victim was very small in comparison being about 4 - 4.5 bighas (during the cross examination of PW-3). Therefore, the allegation of abduction for ransom was suggested to be wholly concocted and inherently improbable. It has also been stated that the appellant had been arrested from the house of his relative/brother-in-law and illegally detained without formal arrest being shown and that his brother-in-law had been forced to withdraw Rs. 10,000/- from his bank account at Allahabad Kshetriya Gramin Bank, on 09.06.2005 for payment of bribe to the police party that had arrested him. The police had upon receipt of that money shown its false recovery as part of the ransom received. A defence witness Vijay Singh (DW-1), the real brother-in-law of the accused persons Guddoo and Lala was examined. He testified that those accused persons had been staying with him, in Allahabad for last few months before their arrest and that the police personnel of Dhoomanganj police had picked them up on 07.06.2005 and that he had withdrawn money from his bank account at the Allahabad Kshetriya Gramin Bank from which alleged bribe was paid to the police personnel to obtain release of the accused Guddoo and Lala.
8. Upon consideration of the entire evidence, the learned court below has convicted the present appellant for the offence under Section 364-A IPC and sentenced him to undergo life term imprisonment together with fine of Rs. 10,000/-. Inter alia, the trial court relied heavily on the evidence of PW-1, PW-2 and PW-3 with respect to allegation of kidnapping and demand of ransom and on the testimony of police personnel with respect to his recovery. The defence evidence with respect to appellant having been picked up by the police, a few days before the recovery of the victim child, was disbelieved.
9. Heard Sri Sanjeev Singh, learned Senior Advocate, assisted by Ms. Mary Puncha for the appellant and Sri Jai Narayan Singh, learned Additional Government Advocate for the State and perused the record.
10. Earlier, a two judge bench of the Supreme Court in Malleshi Vs. State of Karnataka, (2004) 8 SCC 95, laid down three ingredients required to complete an offence under Section 364-A IPC. In para 12 of the aforesaid report, it has been observed as under:
"12. To attract the provisions of Section 364-A what is required to be proved is: (1) that the accused kidnapped or abducted the person; (2) kept him under detention after such kidnapping and abduction; and (3) that the kidnapping or abduction was for ransom......"
Similar test was also applied in another two judge bench decision of that Court in Suman Sood alias Kamal Jeet Kaur Vs. State of Rajasthan, (2007) 5 SCC 634.
11. However, a different view was taken, in at least two other decisions of the Supreme Court. Therein, a distinction was drawn between ingredients of offence as defined under Sections 364 and other pre-defined offences of kidnapping and extortion, on one hand and, that under the newly added Section 364-A IPC. The newly added section introduced the offence - kidnapping or abduction carried out and/or illegal detention of the victim held under threat of hurt or murder etc. to compel the government or a person etc. to do or not do any act or to compel payment of ransom. Thus, while kidnapping/abduction; kidnapping/abduction in order to murder; extortion were pre-defined offences with punishment upto ten year imprisonment, by introducing section 364-A the Parliament declared a more heinous offence, described above. The punishment prescribed was life imprisonment or death penalty. In Anil alias Raju Namdev Patil Vs. Administration of Daman & Diu, Daman & Anr., (2006) 13 SCC 36, it was held:
"The ingredients for commission of offence under Section 364 and 364-A are different. Whereas the intention to kidnap in order that he may be murdered or may be so disposed of as to be put in danger as murder satisfies the requirements of Section 364 of the Penal Code, for obtaining a conviction for commission of an offence under Section 364-A thereof it is necessary to prove that not only such kidnapping or abetment has taken place but thereafter the accused threatened 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."
12. Again, in Shyam Babu & Ors. Vs. State of Haryana, (2008) 15 SCC 418, another two judge bench of the Supreme Court interpreted the provision of Section 364-A IPC, thus:
"Shri Kush, learned counsel concentrated on the nature of the offence. According to him, the ingredients of Section 364-A IPC were not proved in this case and at the most, the conviction could be under Section 364. Section 363 deals with the punishment for kidnapping, which offence is defined in Section 359. The punishment is seven years. Section 364 provides for kidnapping or abducting in order to murder, while Section 364-A deals with kidnapping for ransom. The wording is as under:
"364-A. 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."
The wording itself suggests that when kidnapping is done with the threat to cause death or hurt to the kidnapped person or gives a reasonable apprehension that some person may be done to death or hurt or compels any Government, any foreign State or international intergovernmental organisation or any person to pay a ransom, the offence is complete."
13. While an apparent conflict of opinion exists in the aforesaid decisions of the Supreme Court, all of equal bench strength, yet, that difficulty may not hold us any longer, since a three judge bench of the Supreme Court, in Vikram Singh alias Vicky & Anr. Vs. Union of India & Ors., (2015) 9 SCC 502 also had the occasion to deal with this issue. Upon elaborate consideration of the textual background and history of legislation, the Supreme Court interpreted the ingredients of Section 364-A IPC thus :-
"The argument though attractive does not stand on closer scrutiny. The reasons are not far to seek. Section 364-A IPC has three distinct components viz. (i) the person concerned kidnaps or abducts or keeps the victim in detention after kidnapping or abduction; (ii) threatens to cause death or hurt or causes apprehension of death or hurt or actually hurts or causes death; and (iii) the kidnapping, abduction or detention and the threats of death or hurt, apprehension for such death or hurt or actual death or hurt is caused to coerce the person concerned or someone else to do something or to forbear from doing something or to pay ransom. These ingredients are, in our opinion, distinctly different from the offence of extortion under Section 383 IPC. The deficiency in the existing legal framework was noticed by the Law Commission and a separate provision in the form of Section 364-A IPC proposed for incorporation to cover the ransom situations embodying the ingredients mentioned above. The argument that kidnapping or abduction for ransom was effectively covered under the existing provisions of IPC must, therefore, fail."
14. In State of U.P. Vs. Ram Chandra Trivedi (1976) 4 SCC 52, such a situation was clearly resolved by providing a simple touchstone to the High Courts - "to try to find out and follow the opinion expressed by the larger benches of the Supreme Court".
15. Thus, upon such authoritative pronouncement made by a larger bench of the Supreme Court, no quarrel can arise or exist as to the true ingredients of an offence under Section 364-A IPC. For that offence to be complete, there must necessarily co-exist the following three ingredients:
(a) kidnapping or abduction OR detention after kidnapping or abduction;
(b) threat to cause death or hurt OR reasonable apprehension as to that OR death or hurt actually caused to the kidnapped person/abductee;
(c) the above acts must have been performed to compel
(i) the Government OR foreign state OR international inter-governmental organisation OR any other person;
(ii) to do or to abstain from doing any act OR to pay a ransom.
Unless all three ingredients are proved to have existed, together i.e. in a single chain or by way of an interlinked transaction, the offence may not be said to have been committed. Thus, for a conviction under Section 364-A IPC to arise or be sustained, in the facts of the instant case, it must be seen to have been established beyond reasonable doubt that the victim Aman had been kidnapped by the appellant-Guddoo @ Nitin Singh; and/or kept under detention upon being kidnapped; under threat or reasonable apprehension of or actual hurt or death caused to the kidnapped child, to fulfill a ransom demand.
16. In the facts of the present case, the requisite proof had to arise in two parts. The prosecution was first burdened to establish that the victim child had been kidnapped and/or detained by the appellant. In that regard, the prosecution story emerges quite consistently, logically and truthfully, inasmuch as, undisputedly the victim child was only nine years of age on the date of his disappearance. Then, on 02.04.2005, PW-1 Suresh Kumar, who is the paternal uncle of the victim, lodged a missing person report alleging that the victim went missing while the bicycle that he was riding, was found lying abandoned near village- Medipur. Then, besides the discrepancy as to the date of recovery of the victim on 09.06.2005 (as claimed by the police) and 08.06.2005 (as claimed by the father of the victim i.e. PW-3), S.I. Narendra Kumar Singh (PW-4), who was Chowki Incharge Rajroopur, P.S. Dhoomanganj at the relevant time and Shail Kumar Singh (PW-6), SHO, P.S. Dhoomanganj, categorically stated that upon a tip off, the appellant and the co-accused Lala @ Digvijai Singh @ Rahul were arrested, while they held illegal custody of the victim child. They were cross-examined at length. No inconsistency or doubt arose during such extensive cross-examination as to the factum of recovery and manner of recovery of the victim claimed by the prosecution. Therefore, there is no reason to doubt the prosecution allegation that the victim was recovered from the custody of the appellant and the co-accused Lala @ Digvijai Singh @ Rahul, from the spot described as a jungle on the eastern side of the residential colony, Devprayagam, near the Military Farms, at Allahabad. It may further be stated for the purpose of completion of facts that there is no case of appellant having gained custody of the victim minor child with consent of his natural guardian. The victim child also testified as to his kidnapping by the appellant and the other co-accused and of being kept detained by them till his discovery and recovery by the police. Thus, the first part of the burden to prove (that lay on the prosecution), stood discharged beyond any reasonable doubt. Also, there is no doubt that the appellant had illegally detained the victim for almost two months since he was kidnapped. Though, the appellant did state that he had been falsely implicated by the police personnel, he could not lead any positive evidence in support of such claim.
17. However, as noted above, for the offence under Section 364-A IPC to be complete, kidnapping or abduction and illegal detention of the kidnapped/abducted is only a part ingredient. The key ingredient that distinguishes the offence under Section 364-A IPC from that of kidnapping; extortion and; kidnapping for murder, is the demand of a ransom under the threat to cause hurt or death or reasonable apprehension as to that or causing death or hurt - to extract the ransom. It is in this regard that the prosecution story waivers and serious doubts emerge that require consideration. In the first place, it was the own case of the key prosecution witness namely the first informant (PW-1) and the father of the victim (PW-3) that the personal clothes & slippers of the victim as also the ransom notes were not received by them, directly from any of the accused persons. On the contrary, they asserted that such personal belongings of the victim and the ransom notes were received by Shiv Mangal Sahu, and Budul Yadav. Also, it was the prosecution's own case that a ransom demand was also received telephonically on the mobile phone of the village 'Pradhan', namely Narpat Singh. Rajesh Kumar, PW-3 (father of the victim) further claimed to have spoken to the abductors and the victim on the mobile phone of Narpat Singh. However, for reasons not known to the Court, neither of the three persons, who allegedly received the ransom notes and on whose mobile phone demand for ransom was made, were ever produced as a witness to support that crucial aspect of the prosecution story. It is also not completely free from doubt how PW-1 could have proven the exhibits i.e. ransom notes and, clothes & slippers of the victim, when, according to his own statement, he had not received the same from the abductors/accused persons but the same were disclosed to have been received from Shiv Mangal Sahu and Budul Yadav. No effort whatsoever was made to establish that the ransom notes were in the handwriting of the accused persons. The child witness who was alleged to have been forced to write his name on those ransom notes did not identify his writing.
18. In any case, the prosecution story in that regard, falls flat upon the cross-examination of Rajesh Kumar (PW-3) i.e. father of the victim child who conceded that he had thought the victim child had gone away to some relative, till he was recovered. If the father of the victim child always believed that the latter was staying with some relative till his recovery on 08/09.06.2005, then the entire story of receipt of ransom notes and threat to life of the victim child is rendered completely unbelievable. It has to be discarded in entirety. It may also be noted, the victim child though supported the prosecution allegation of demand of ransom made over telephone, during the telephonic conversations, yet, during his cross-examination he stated that he did not remember what transpired during those telephonic conversations between the abductors and his parents. Also, though such demands or ransom, are claimed to have been over a period of almost two months from the date of abduction till the date of arrest and recovery, yet, that matter was never reported to the police authorities. Also, according to the first informant and the father of the victim, they had partly complied with the demand of ransom of Rs 5,00,000/-. However, no evidence could be led to establish the payment of Rs. 70,000/- by way of part ransom amount. In any case, that fact would remain very difficult to prove, by its very nature. At the same time, there also exist doubts as to the exact amount of ransom demanded-whether Rs. 2,00,000/- or Rs. 5,00,000/- or Rs. 2,70,000/-, in view of varying statements of different prosecution witnesses, in that regard.
19. Then, as discussed above, a simple demand of ransom, even if accompanied with kidnapping, would not complete the ingredients of offence under Section 364-A IPC. The demand of ransom must be proven to have been made under threat or reasonable apprehension or actual hurt or death. Looked in this light, it is also relevant that there were no injuries or marks of any injury or torture found on the body of victim child, at the time of his recovery on 09.06.2005. He also did not make any statement to that effect. In his entire testimony, he did not bring out any allegation of any attempt made on his life or any threat to life having been made on him at the hands of the appellant or the other co-accused. In fact, he had described, in great detail, his uneventful journeys and stay at various places from 02.04.2005 up to the point of his recovery by the police. Not only this, there is a complete lack of any threat to life or hurt in that narration, in fact, it is completely uneventful except a stray statement that he (PW-2) had once been threatened while at an unspecified railway station. Thus, that narration also does not bring out any allegation of attempt to murder or threat to murder or any bodily injury caused to the victim to demand ransom.
20. Thus, in entirety of the evidence brought forth by the prosecution, we find that more than reasonable doubts exist as to the third ingredient of offence under Section 364-A IPC. To conclude, the prosecution has failed to establish that there was any threat to cause death or hurt or any reasonable apprehension of death or hurt being caused to the victim to compel payment of a ransom. Also, neither the ransom notes were ever proved, nor the victim child proved the demand of ransom. Further, it is doubtful that such ransom notes were ever received or if a conversation demanding ransom ever took place, inasmuch as, the father of the victim (PW-3) always thought, till the recovery of the victim child that the latter had run away to some relative. The kidnapped child was recovered safe and sound. Thus, for the reasons noted above, the third ingredient of the offence under Section 364-A IPC is found not proved.
21. As a consequence of the above discussion and for the reasons given, we find that ingredients of offence under Section 365 IPC was made out, inasmuch as the victim, who was a minor child, is found to have been kidnapped and wrongfully confined by the appellant. In absence of the third/further ingredient of the offence under Section 364-A IPC, we find the present to be a fit case to modify the charge and, therefore, the conviction and sentence awarded to the appellant-Guddoo @ Nitin Singh, to one under Section 365 IPC in place of Section 364-A IPC.
22. Accordingly, the appeal is allowed in part. The conviction of the appellant-Guddoo @ Nitin Singh under Section 364-A IPC is modified to one for offence punishable under Sections 365 IPC. The maximum punishment for such offence is seven years only. The sentence is modified accordingly. The appellant-Guddoo @ Nitin Singh has remained confined for more than 15 years. He is directed to be released forthwith, unless required in any other case. The fine of Rs. 10,000/-, awarded by the learned court below, is set-aside.
July 10, 2020 AHA/Prakhar (Saumitra Dayal Singh, J.) (Govind Mathur, C.J.)
Judgment delivered by Hon'ble Saumitra Dayal Singh, J. under Chapter VII Rule 1 (2) of the Allahabad High Court Rules, 1952.