Madhya Pradesh High Court
Abdul Momin @ Vapi Momin vs The State Of Madhya Pradesh on 8 September, 2021
Author: Vivek Rusia
Bench: Shailendra Shukla, Vivek Rusia
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HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
D.B.:Hon'ble Shri Justice Vivek Rusia
Hon'ble Shri Justice Shailendra Shukla, JJ.
Criminal Appeal No.298/2014
Abdul Momin @ Vapi Momin S/o Abdul
Mannan, aged about 38 years, Appellant
Occupation- Driver, R/o Village-
Balrampur, Lal Gola, District
Murshidabad, West Bengal
V/s
State of Madhya Pradesh through
Police-Station Tukoganj District Indore Respondent
(M.P.)
Shri Sunil Gupta, learned counsel for the applicant.
Shri Sudhanshu Vyas, learned Government Advocate for the
respondent/State.
JUDGMENT
(Delivered on 8th September 2021) PER VIVEK RUSIA, J:-
This criminal appeal is filed under Section 374 of Cr.P.C. arises out of the judgment and order dated 04.02.2014 passed by the First Additional Session Judge, Indore, District Indore by which appellant has been convicted under Section 364-A of IPC and sentenced to undergo Life Imprisonment with a fine of Rs. 5,000/-, in default thereof, to further undergo 6 months, R.I. (2). The case of the prosecution, in brief, is as follows: -
Rajesh and his father Gokul are the agriculturist and resident of Village Salriya Susner. Rajesh received a telephone on 13.10.2011 from one person named 'Choudhary'. He directed him to bring opium and smack to Kolkatta. Rajesh has shown his inability, then he directed him to go Ujjain with 5 kg clarified butter, 2 kg spicy namkin and " milan mehndi" and hand over to the person at Ujjain. Rajesh went to Ujjain along with his father Gokul and reached Ujjain at about 07-
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08:00 pm. There, they met with one Pintu, who informed that the Choudhary has instructed him to bring Kolkatta with all the above materials. They requested Gokul for returning to the village but he insisted to go Kolkatta along with his son Rajesh. Rajesh,Gokul and Pintu boarded the train and later on 5-6 persons have jointed them. When they reached Vardhman Station and changed the train to reach Rampura Hart Station, where Choudhary met them and collected the aforesaid items. Thereafter, all of them reached one village, where they stayed for two days. The Choudhary assaulted his father and demanded Rs. 20,00,000/- failing which he would deport them to Bangladesh. Rajesh told them even he sells his entire land, he would not get more than 4-5 lakhs, the matter was settled of Rs. 7,00,000/-.
Rajesh gave a telephone call to Rameshwar and others for the arrangement of money by selling the land. The Rameshwar came to the Police Station- Tukoganj on 21.10.2011 to lodge an FIR, which was registered against unknown persons under section 364 of I.P.C. at crime No.686/2011. Thereafter, Rameshwar received a call and got instruction to go to Apollo Tower 335 Second Floor to hand over 7 lakhs to Lucky. He was directed to meet Lucky in the fake name of Ranjeet. Meanwhile, Investigating Officer Ashok Tiwari has moved to Kolkatta for investigation in this case. Rameshwar could arrange Rs. 80,000/- and remaining amount Rs. 3,00,000/- was provided by the employer of Lucky namely Ajay Seth. When this appellant came to collect the money from Deendayal (PW-11) he was arrested by local as well police personal of M.P. . Investigation officer has recovered Rs. 3, 80,000/- and Mobile from the appellant. He was produced to Metropolitan Magistrate, Kolkatta on 10.02.2021 and obtained the transit warrant to bring him to Indore. His memorandum under Section 27 of the Indian Evidence Act was recorded in which he disclosed the name of Abdul Ameen and Shevar Khan who were made accused and arrested . After the arrest of all three accused persons, Test Identification Parade was conducted in which Rajesh has identified the appellant on 19.11.2011 vide Ex. P/1. Rajesh has also identified
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Shevar Khan in Central Jail Indore vide Ex. P/2. After completing the investigation charge-sheet was filed against six accused persons (i) Ameen Khan, (ii) Abdul Momin Khan @ Bapi Momin, (iii) Shevar Khan, (iv)Tasleen Sheikh (absconding), (v) Pintu @ Bashadur Haq and
(vi)Hairdar (absconding) under section 364-A and 120-B of I.P.C.
Thereafter, the learned Magistrate committed the trail to the court of Sessions Judge. Learned Additional Session Judge took cognizance, secured the presence of the accused and after hearing both sides, fremed the charges under section 364-A and 120-B of I.P.C. for abduction and demanding of ransom for the release of Rajesh and Gokul.
During the pendency of the trial, Shevar Khan @ Waseer died on 27.09.2012 while taking treatment in the hospital, therefore, the trial was abetted against him on 28.09.2012 (3). In order to prove the above charges, the prosecution has examined as many as 22 witnesses, exhibited 14 documents. Thereafter, the statements of the accused persons were recorded by putting incriminating materials against them and they did not lead any oral evidence. After hearing the learned counsel appearing for the parties, the Court below came to the conclusion that the materials placed on record are sufficient to bring home the guilt of the present appellant Abdul Momin and convicted him under section 364-A of I.P.C. and discharged him for an offence punishable under Section 120-B of I.P.C., However, Ameen Khan has been acquitted from all of the charges levelled against him. Challenging the legality and correctness of the same, the appellants - accused is before this Court. (4). Learned counsel for the appellant has argued that Rajesh Sharma (PW-1) and Gokul Prasad (PW-2) have turned hostile as they did not support the case of the prosecution. That on the same set of charges, the co-accused has been discharged but the appellant has wrongly been convicted. It is not the case of the prosecution that the appellant came to Ujjain and abducted Rajesh and Gokul. Rajesh Sharma (PW-1) and Gokul Prasad (PW-2) were not recovered from the custody of the
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appellant, therefore, ingredients of Section 364-A are missing in this case against the appellant. At the most, he was arrested with the ransom amount only , which could be offence under section 120-B of I.P.C. but Additional Sessions Judge has discharged him, hence, he is liable to be acquitted in this case.
(5) Shri S Vyas learned Government Advocate appearing on behalf of the respondent/State opposed the above prayer by submitting that the appellant has rightly been convicted as he came to Goyenka Street Kolkatta to collect the ransom amount and on his information about the receiving of the money Rajesh (PW-1) and Gokul (PW-2) were released. The appellant has failed to explain possession of the amount of Rs. 3,00,000/- with him. The appellant was in contact with Deendayal (PW-11) and Lucky (PW-10) and received an amount of Rs. 3,00,000/ 3,80,000, therefore, he played an active role along with other accused in the kidnapping/abduction of Rajesh (PW-1) and Gokul (PW-2), hence, no interference is warranted in the impugned judgment passed by the learned trial court.
(6). We have heard learned counsel for the parties and perused the records of the trial court.
(7) Rajesh Sharma (PW-1) has testified in the court that he received a call from an unknown person, who called from Ujjain. He went Ujjain along with his father (PW-2) and met one person, who took them to Vardhman station and informed them that they are now hostages and if the amount of Rs. 7,00,000/- was not given, they would be killed in the name of terrorists. He made the call to his brother-in-
law Rameshwar for the arrangement of Rs. 7, 00,000/-. He was given the address of an office situated at Indore for handing over the money. He was kept there for 4-5 days and after receipt of the ransom amount, they were released and they came to Ujjain by Kshipra Express. His brother-in-law Rameshwar lodged a report in the police station. He denied identifying the appellant in court. He has denied that no TIP was conducted accordingly, he was declared hostile. During the cross- examination, he admitted that he received a call from a person named
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Choudhary who got his phone number from Balveer Singh resident of Punjab. He has admitted his link with Balveer but denied that he was indulging in smuggling of opium and smack. Likewise, Gokul (PW-2) has narrated the same story in court and did not identify the appellant. (8) Rameshwar Sharma (PW-3) has stated that after received a call from Rajesh (PW-1) he came to Tukuganj Police Station and lodged a report. During the cross-examination, he has admitted that he went and met Lucky in his office situated at Apollo Tower with Rs. 83,000/- but he is not aware to whom the Jeetu gave this money. When he returned to his village, he had got back Rs. 83,000/-
(9) Jeetnarayan (PW-4) has stated that in his statement that he went to Room No.235 Apollo Tower with Rs. 80,000/- which he gave to lucky. Upon depositing the money Rajesh and Gokul were released after ten days. He has also been declared hostile. (10) Prosecution examined Lucky @ Aadesh as PW-10. According to him, his employer did agree to give Rs. 7,00,000/- to save the life of someone. Although he has been declared hostile but in the leading question, he has admitted that he received a call from Deendayal in respect of payment of the amount of Rs. 3,00,000/- to the appellant. He has not disclosed the name of the person, who came to his office for the transfer of money to Kolkatta.
(11). Deendayal Sharma has been examined as PW-11, who resides at Hariram Goyenka Stree Kolkatta and looks after the work of Seth Tekriwal. He has also admitted that he looks after the work of Lucky Mishra in respect of the transfer of money. According to him, he received a call from Momin in respect of receiving money from Indore On 21/22-11-2011, he received a call from Lucky Mishra in respect of transfer of money of Rs. 3,00,000/-. According to him on the instruction of Lucky, he gave Rs. 3,80,000/- to Momin. Two policemen who came from Indore were also present in civil dress. Constable Ravi took a photograph of Momin from his mobile but the same has not been produced in this case. He has identified the Momin in the Court.
During the cross-examination, he has admitted that he did not know
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the Momin, the policemen had already told him that Momin would come to receive the money. The story was abduction was told by the police to him.
(12) It is clear from the statement of Lucky (PW-10) and Deendayal (PW-11) that money of Rs. 3,00,000/3,80,000/- was transferred to Deendayal for handing over to the present appellant. According to Rajesh (PW-1) and Gokul (PW-2) after receipt of the money, they were released but they never met this appellant. They have never disclosed the name of the village where they were kept for 4-5 days during the abduction. The police did not recover them from the control of the appellant, they came to Ujjain from Kolkatta without the help of police.
(13). The prosecution has examined Govind Sonker (PW-20), who signed the Ex.P/11 and according to him the Kolkatta Police and Indore Police arrested the Momin in front of his shop and recovered Rs. 3,00,000, Mobile and Identification Card from his bag. (14) Investigating Officer Ashok Tiwari has been examined as (PW-
22).The appellant has been acquitted under section 120-B of I.P.C. and co-accused Amin has been acquitted under section 364-A and 120-B of I.P.C.
Now we are required to examine whether the offence under section 364-A of I.P.C. is made out against the appellant. (15) Section 359 of I.P.C defines kidnapping and 362 I.P.C. defines abduction. Section 366 I.P.C. provides the punishment for kidnapping and section 364 provides punishment for kidnapping for ransom. As per the definition of abduction whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person and whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt gives rise to a reasonable apprehension that such person may be put to death to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine. In order to convict a person under section 364-A of I.P.C.
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there has to be an abduction meaning thereby a person by force or any deceitful means compel any person to go anyplace. (16) In the present case Rajesh (PW-1) and Gokul (PW-2) did not allege that they were forced to move from Ujjain to Kolkatta or they were induced by any deceitful means by this appellant to move from Ujjain to Kolkatta, therefore, the first ingredient of abduction is missing in this case against the appellant. As per the second requirement after such abduction, the same person must threaten to cause death or hurt such abductee for payment of ransom. In the present Rajesh (PW-1) and Gokul (PW-2) were not recovered from the custody of this appellant. They have even failed to identify the appellant in the court. Even, it is not a case of the prosecution that this appellant was abducted and kept father and son in the village for 4-5 days.
(17) The only allegation against this appellant is that he came to Dalal Stree to collect the money from Deendayal (PW-11). After received of the money, he was followed by Ashok Tiwari (PW-22) and in presence of Govind Sonkar (PW-20), he was arrested vide Ex.P/12.
The Ashok Tiwari (PW-22) has not stated that during this period, he gave any call for confirmation of receipt of any amount from Deendayal (PW-11). According to Rajesh (PW-1) and Gokul (PW-2) they were released after getting the information about the receipt the amount by this appellant, therefore, the link is missing whether Rajesh (PW-1) and Gokul (PW-2) were released after receiving money by the appellant from Deendayal (PW-11), therefore, it cannot be said that this appellant received the ransom amount and thereafter Rajesh (PW-
1) and Gokul (PW-2) were released. Even after the arrest of the appellant, Ashok Tiwari (PW-22) has failed to recover the Rajesh (PW-
1) and Gokul (PW-2) from custody from the appellant or any other accused. Even if it is believed that this appellant had conspired with the other co-accused in the abduction of PW-1 and PW-2 to get ransom amount, then he is liable to be punished under section 120-B of I.P.C alone but he has been discharged by the learned Additional Sessions
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Judge and there is no appeal by the State Government. Thus the conviction of the appellant under Section 364-A of I.P.C. is without evidence. The prosecution has failed to prove the charges 364-A of I.P.C. against the appellant.
(18) Taking into consideration the above-said facts and circumstances, we proceed to pass the following order:
(i) Criminal Appeal is allowed.
(ii) The judgment of conviction and order of sentence passed by the learned First Additional Sessions Judge, Indore in S.T. No.1001/2012 dated 04.02.2014 is set aside. Appellant is acquitted of all the charges levelled against him.
(iii). Appellant is ordered to be released forthwith if he is not required in any other case.
(vi) The concerned court is hereby directed to refund the fine amount, if the same has been deposited by the appellant, on proper identification and acknowledgment.
The registry is directed to send back the Trial Court records forthwith along with the copy of this judgment.
( VIVEK RUSIA ) ( SHAILENDRA SHUKLA )
JUDGE JUDGE
praveen/-
Digitally signed by PRAVEEN
NAYAK
Date: 2021.09.09 10:42:11 +05'30'