Madhya Pradesh High Court
Irfan & Ors. vs The State Of M.P on 1 February, 2010
Author: Rakesh Saksena
Bench: Sushma Shrivastava, Rakesh Saksena
(1) Cr.A.285/2002
Cr.A.452/2002
Cr.A.459/2002
HIGH COURT OF MADHYA PRADESH: JABALPUR
Division Bench: Hon'ble Justice Shri Rakesh Saksena
Hon'ble Justice Smt.Sushma Shrivastava
CRIMINAL APPEAL NO. 285/2002
1. Irfan,S/o Abdul Sattar, aged about
23 years, R/o Road near Jama Masjid,
Ward No.3, Near Quereshi Advocate,
P.S. Balaghat, District Balaghat,M.P.
2. Mohammad Ali, S/o Majood Khan,
aged about 26 years, R/o Dharnakala,
Modi Mohalla, Behind Bus stand, P.S.
Barghat, District Seoni, M.P.
.......Appellants
-Versus-
State of Madhya Pradesh
.......Respondent
--------------------------------------------------------------------------------------------------------
For the appellants: Shri S.C.Datt, Senior Advocate with Shri
Siddharth Datt, Advocate.
For the respondent: Shri J.K.Jain, Deputy Advocate General.
--------------------------------------------------------------------------------------------------------
CRIMINAL APPEAL NO.452/2002
Javed, S/o Wali Mohammad Musalman,
aged about 27 years,
R/o Modibada, Cantt Jabalpur,M.P.
........Appellant
-Versus-
State of Madhya Pradesh
through Police Station
Garha, Jabalpur, M.P. .........Respondent
--------------------------------------------------------------------------------------------------------
For the appellant: Ku.Anita Kaithwas, Advocate.
For the respondent: Shri J.K.Jain, Deputy Advocate General.
--------------------------------------------------------------------------------------------------------
(2) Cr.A.285/2002
Cr.A.452/2002
Cr.A.459/2002
CRIMINAL APPEAL NO.459/2002
Mukesh Kumar, S/o Ajan Lal Soni,
aged 27 years, R/o Akor Mohalla
Ward No.3, Nainpur, District Mandla,M.P.
........Appellant
-Versus-
State of Madhya Pradesh .........Respondent
--------------------------------------------------------------------------------------------------------
For the appellant : Shri Mohammad Salim, Advocate.
For the respondent: Shri J.K.Jain, Deputy Advocate General.
--------------------------------------------------------------------------------------------------------
Date of hearing: 21/01/2010
Date of Judgment: 01/02/2010
**********
JUDGMENT
Per: Rakesh Saksena,J.
All the appeals arise out of the common judgment passed by the Court below, as such they are being disposed of by this common judgment.
2. Appellants have filed these appeals against the judgment dated 18.01.2002 passed by Tenth Additional Sessions Judge, Jabalpur in Sessions Trial No.463/1999 convicting all the appellants except appellant Mohammad Ali under section 364-A of the Indian Penal Code and sentencing each of them to imprisonment for life with fine of Rs.500/-. Appellant Mohammad Ali has been convicted under section 368 read with section 364-A of the Indian Penal Code and sentenced to imprisonment for life with fine of Rs.500/-.
3. In nutshell, the prosecution case is that Shashank Gupta, a child of about 7 years of age, was a student of Class I of Bela Singh (3) Cr.A.285/2002 Cr.A.452/2002 Cr.A.459/2002 School, Premnagar Madanmahal, Jabalpur. On 23.3.1999 at about 7 o'clock. in the morning, he had gone to appear in the examination. His father Santosh Gupta (PW2) had left him at the school. Since Santosh Gupta was busy in repairing the roof of his house he sent his brother-in-law Bhupendra Gupta (PW7) to fetch Shashank. After the time of the school was over, at about 10:30 a.m., when Bhupendra Gupta reached the school, he did not find Shashank there. He inquired from teacher and peon, but Shashank was not traceable. He rushed to his house and informed Santosh Gupta and Manju Gupta and again went to school with them, but they did not find Shashank at the school. Grandfather of Shashank namely Kamta Prasad (PW5) lodged a report Ex.P/5 with the police about the missing of Shashank. On the same day in the evening at about 5 p.m. Kamta Prasad received a phone call from some unknown person inquiring whether Shashank had come back. On 24.3.1999 and 25.3.1999, again Kamta Prasad received phone calls from some unknown person, who told if they wanted their child back they should give Rs.5 lacs. When Kamta Prasad replied that they were not in a position to arrange for such a huge amount, he replied if they wanted their child back they will have to manage. On 25.3.1999, police registered the case under section 364-A of the Indian Penal Code as per F.I.R. Ex.P/11 against the unknown persons and started investigation. Omprakash Patel (PW14), Station Officer of Police Station Barghat, District Seoni, on receiving the radio message from police control room, Jabalpur checked all the STD/PCOs. On getting information from an informer that a boy was seen in suspicious circumstances near the house of accused Mohammad Ali, he reached there. As soon as he reached, 2-3 persons tried to run away from there who were nabbed by the police. They were accused Irfan, Mukesh and Javed. On the information furnished by the aforesaid (4) Cr.A.285/2002 Cr.A.452/2002 Cr.A.459/2002 accused persons, kidnapped child Shashank was recovered from the house of Mohammad Ali. Shashank disclosed to police that accused Mukesh had asked him to go on Heropuch moped with other two accused persons who instead of carrying him to his house, took away to some other place. Accused persons had told to him that his mother and father were admitted in the hospital, therefore, they had come to pick him up. They used to tell him that his parents would come and take him to his house. When he was playing with some boys, Mukesh and other accused persons asked him to go inside the house but thereafter police reached there. In the course of investigation, police recorded the statements of Bal Govind Sahu (PW3) and Hemant (PW4), who were running the STD booth at Barghat from where the accused persons had made phone calls to the house of Shashank. Accused persons were also identified by these witnesses before the test identification parade conducted by the Executive Magistrate K.L.Soni (PW11). After investigation, charge sheet was filed and case was committed for trial.
4. Accused persons abjured their guilt and pleaded false implication. According to accused Javed, there had been a quarrel between him and Santosh, father of Shashank, because he suspected that he used to move around his house in connection with his sister. According to accused Mukesh, he was falsely implicated by Santosh because he had illicit relation with his sister Mamta. The defence of accused Irfan was that he was falsely implicated because he used to go in the locality of the house of Santosh Gupta with Javed. They had a quarrel also with Santosh Gupta. According to Mohammad Ali, he was arrested by the police because he used to go to give food to accused Irfan.
5. Learned Additional Sessions Judge after trial and upon appreciation of the evidence adduced in the case found the accused/ (5) Cr.A.285/2002 Cr.A.452/2002 Cr.A.459/2002 appellants guilty of kidnapping Shashank Gupta for ransom and convicted and sentenced them as mentioned above.
6. Learned counsel for the appellants submitted that the trial Court gravely erred in placing implicit reliance on the testimony of child witness Shashank and the evidence of identification by Hemant (PW4). He further submitted that the prosecution had failed to prove that any demand of ransom was made by the appellants. On the other hand, learned counsel for the State, while justifying the finding of conviction recorded by the trial Court, submitted that the evidence of prosecution witnesses had amply established that Shashank was kidnapped for ransom, therefore, trial Court rightly held the appellants guilty and no interference was called for in the impugned judgment.
7. We have heard the learned counsel of both the sides and perused the impugned judgment and the evidence on record carefully.
8. The first question before us is whether Shashank (PW1) was kidnapped by appellants Mukesh, Irfan and Javed. Key witness in this regard is child Shashank Gupta (PW1). He deposed that on the day of incident in the morning he had gone to his school with his father to appear in the examination. When his paper was finished, he came at the gate of his school waiting for his father. When all other children had gone, Mukesh uncle, who was known to him, came there with accused Irfan and Javed. Irfan and Javed had come on a Heropuch moped. Javed told him that his mother and father were admitted in the hospital and he would take him there. Mukesh also asked him to go with Javed on his moped. Irfan and Javed carried him to village Dharna and kept him in the house of accused Mohammad Khan. They left him there with the family members of Mohammad Khan. Javed and Irfan used to go some where in the (6) Cr.A.285/2002 Cr.A.452/2002 Cr.A.459/2002 morning and come back in the night. On his insisting that he wanted to go back home, they assured him that they will take him back to his house. Javed, Irfan and Mohammad Khan one day took him to the temple of Banjaru Mata saying that his parents would come there to fetch him. At the temple accused Mukesh was also present. However, till night his parents did not come. Next day when he was present at the house of Mohammad Khan, police came with accused Javed, Mohammad Khan, Irfan and Mukesh and took him to police station Seoni. Next day he was brought to police station Garha of District Jabalpur from where his parents took him back to his house. From the evidence of this witness, it is evident that he was a young boy of about 7 years and was student of Class I, he was recovered from the house of Mohammad Ali and recovery memorandum Ex.P/1 was prepared. He had signed on Ex.P/1. Before the Court, he correctly identified all the four accused persons. He was subjected to a very lengthy and tedious cross-examination but he stood firm. He explained that accused Mukesh used to come to his house, therefore, he called him uncle whereas other accused persons called each other by their respective names therefore, he came to know their names. He categorically stated that his mother and father did not suggest him what he had to say before the Court. He admitted that none of the accused maltreated him. He was kept by the accused persons for seven days but accused persons never intimidated him. He did not even feel that he was taken forcibly. He firmly denied that his father had asked him to go with the accused persons. The argument advanced by learned counsel for the appellants that since Shashank was a young boy of about 7 years he could have been easily tutored, therefore, his evidence in the absence of test identification was not reliable, is not acceptable. Learned Sessions Judge who recorded the statement of Shashank observed " that since the child witness (7) Cr.A.285/2002 Cr.A.452/2002 Cr.A.459/2002 Shashank Gupta himself was the victim of the offence and the natural manner and confidence with which he narrated the incident in the Court, he cannot be disbelieved merely on the ground that he was a child witness. The objection regarding his trustworthiness made by the defence was baseless. He had remained with the accused persons for about 6-7 days and had correctly identified all the four accused persons viz. Irfan, Javed, Mohammad Ali and Mukesh, therefore, it was not necessary to have held the test identification proceeding for him."
9. Trial Court had occasion of watching the demeanour of this witness. The impression gathered by the trial Judge that he was not a tutored witness was based upon the manner in which the witness was replying the questions. Though an attempt was made to the witness to suggest that he was tutored by his parents but all these suggestions were negatived by him.
10. We have carefully scrutinized the evidence of this witness and found that he cannot be described as a tutored witness. He has corroborated the prosecution story on all material particulars. We agree with the findings reached by the learned Sessions Judge regarding trustworthiness of Shashank Gupta (PW1). In our opinion, evidence of Shashank alone is sufficient to establish that he was kidnapped by the appellants.
11. Santosh Gupta (PW2) and Manju Gupta (PW6), who are respectively the father and mother of Shashank, have deposed that on the date of occurrence i.e. 23.3.1999, the age of Shashank was 7 years. In the morning at about 7 o'clock Santosh Gupta had taken him to R.S.Bela Singh School, Madan Mahal. After the school hours since Santosh Gupta could not go to school being busy in repairing the roof of his house, he sent his brother-in-law Bhupendra Gupta (PW7) to fetch him. This fact is established from the evidence of (8) Cr.A.285/2002 Cr.A.452/2002 Cr.A.459/2002 Bhupendra Gupta (PW7), Santosh Gupta (PW2), Kamta Prasad (PW5) and Manju Gupta (PW6). According to Bhupendra Gupta (PW7), when he reached the school at about 10:30 a.m. the school time was already over but he did not find Shashank in the school. He, therefore, inquired from teacher and peon and looked for him in the classroom and all other places in the school but all in vain. He went back and informed Santosh Gupta and Manju Gupta. They also went to school and searched but Shashank could not be traced out. Shashank's grandfather Kamta Prasad (PW5) went to police station Garha and lodged the report which was recorded by Assistant Sub Inspector Dinesh Kumar Mishra (PW8) as a missing person report Ex.P/5. From the evidence of these witnesses, it is evident that Shashank Gupta, who was a minor boy of about 7 years of age, was missing from his school since 23.3.1999.
12. Learned counsel for the appellants argued that appellant Mukesh Kumar was falsely implicated because he had illicit relation with the sister of Santosh Gupta (PW2) and appellants Irfan and Javed were roped in because they used to go to the locality in which house of Santosh Gupta was situated and Santosh Gupta suspected that they had an evil eye on his sister. These suggestions were put to Santosh Gupta (PW2) who firmly denied.
13. Station Officer of police station Barghat, Omprakash Patel (PW14) deposed that at the relevant time he came to know from the newspaper that a boy from Jabalpur was kidnapped and he also received information from Jabalpur Police Control Room that kidnappers were demanding ransom from the family members of child by calling them on their telephone number 423841. On this basis, he checked all the STD/PCOs situated in village Barghat. On 29.3.1999, he found that 3-4 times telephone calls were made on the said number by one of the PCO booth. He put a vigil on that booth (9) Cr.A.285/2002 Cr.A.452/2002 Cr.A.459/2002 and in the meanwhile he received a message from an informer that an unknown boy was seen near the house of accused Mohammad Ali in suspicious circumstances. He with his staff immediately reached at the house of Mohammad Ali situated in village Dharna. When he reached near the house of Mohammad Ali, 2-3 persons tried to run away who were nabbed. They were accused Irfan, Mukesh and Javed. They disclosed about the kidnapping of Shashank and keeping him in the house of Mohammad Ali. Their informations were recorded in memoranda Ex.P/6,P/7 and P/8. At their instance, Shashank was recovered from the house of Mohammad Ali. Recovery memo Ex.P/1 was drawn at the spot in the presence of witnesses Shankarlal (PW9) and Bhajanlal (PW10). Though Shankarlal and Bhajanlal deposed that Shashank was recovered from village Dharna but they denied that he was recovered on the information given by accused persons from the house of Mohammad Ali. They were declared hostile. Even then, in our opinion, the evidence of ASI Omprakash Patel cannot be doubted that he arrested the accused persons from village Dharna and recovered Shashank Gupta from the house of Mohammad Ali. His evidence stands corroborated from the evidence of Shashank Gupta (PW1).
14. The next argument advanced by the learned counsel for the appellants is that the evidence of Kamta Prasad (PW5) and Hemant (PW4) is not trustworthy. The trial Court committed error in placing implicit reliance on their evidence and holding that the demand of ransom was made by the accused persons. Kamta Prasad (PW5), who is grandfather of child Shashank Gupta, deposed that around 5 p.m. on the day on which Shashank was missing, he received a telephone call from some unknown person inquiring whether Shashank was found, subsequently on 25.3.1999, around 1 p.m. again some one told him on phone that if they wanted Shashank (10) Cr.A.285/2002 Cr.A.452/2002 Cr.A.459/2002 back they will have to give Rs.5 lacs. When he told that he did not have such a huge amount he asked as to how much he could give and told him to call again. Though police had kept the land line phone number of Santosh Gupta under observation, but the prosecution produced the observation report Ex.P/15 only of 25.3.1999 and 26.3.1999. In this report, no call was found to have been received at the phone number of Santosh Gupta from any town other than Jabalpur.
15. B.L.Khanpasole (DW2), who proved the aforesaid observation report, deposed that all the phone calls received at the phone of Santosh Gupta were made from local phone numbers of Jabalpur, however, trial Court found that in Ex.P/15 there was no mention about the calls received on 25.3.1999 before 3 p.m. This observation report was found to be of no help by the trial Court because it was an incomplete report, but this, in our opinion, does not render the evidence of Kamta Prasad (PW5) unreliable that he had received phone call demanding Rs.5 lacs as ransom for releasing Shashank Gupta. Normally it is difficult to prove the demand of ransom by direct evidence yet it can still be established by the circumstantial evidence that such demand was made.
16. Hemant (PW4), who was running STD/PCO, at bus stand Seoni deposed that on 27.3.1999, two boys had come to phone at about 6 a.m. and had told him that they wanted to have some personal talks on phone, he then had gone out of the STD/PCO. Those boys had called at STD No.0761 phone No.423841. According to him, he remembered this number because for the first time such an incident had occurred before him. After about 4-5 days, he was asked to identify the accused persons in Tahsil Court. He and other two PCO operators namely Sahu and a girl had also participated in the identification parade. He had identified Irfan and Javed as the (11) Cr.A.285/2002 Cr.A.452/2002 Cr.A.459/2002 persons who had made the said phone call from his PCO. This witness was subjected to a rigorous cross-examination but he answered all the questions firmly and did not deviate from his version. He fairly stated that he maintained a register about the record of calls and he had shown that register to police but police had returned that register to him. He had also given a bill for receiving Rs.13.50 to the accused persons for making the call. Learned counsel for the appellants submitted that in the absence of the record of PCO, oral evidence of this witness was not reliable. We are unable to accept his submission. Even if Investigating Officer committed mistake in not seizing the register of PCO, merely on that ground the evidence of Hemant (PW4) which otherwise appears reliable cannot be disbelieved. It is also to be noted that the investigation of the case was conducted by police Garha, District Jabalpur whereas PCO was situated within the jurisdiction of police station Barghat District Seoni. In cross-examination, Hemant, though admitted that he was called to Jabalpur by police Garha and some boys were shown to him at police station but he categorically stated that accused Irfan and Javed were not among those persons. It is also important to note that test identification parade had been held in the Court of Tahsildar, Seoni, therefore, it cannot be held that accused Javed and Irfan were shown to this witness at police station. Finding of the trial Court that identification of these accused persons by Hemant (PW4) before the Court was reliable, appears to us just and proper. It is true that no documentary evidence in respect of phone call made by the accused persons on 27.3.1999 had been produced but the evidence of Hemant finds corroboration from the evidence of Kamta Prasad (PW5) that on 27.3.1999 he had received phone call for demand of Rs.5 lacs for the release of Shashank. According to Kamta Prasad, the caller had told that the (12) Cr.A.285/2002 Cr.A.452/2002 Cr.A.459/2002 child was kept 200 kms away from Jabalpur and if the amount of ransom was not paid, child would be killed. The evidence of Bal Govind Sahu (PW3) was rightly disbelieved by the trial Court because he admitted he had seen accused Irfan and Javed in police station Seoni before he went to identify the accused persons in Tahsil Court.
17. We are unable to accept the contention of the learned counsel for the appellants that it was not proved that accused persons made demand of ransom for release of Shashank and that there was no apprehension that the kidnappee might be put to death or hurt, therefore, the charge under section 364-A I.P.C. was not proved. To attract the provisions of section 364-A, it is required to be proved that accused kidnapped a person and kept him under detention for a ransom.
18. To pay a ransom as per Black's Law Dictionary means "to pay price or demand for ransom". The word "demand" means "to claim as ones due"; "to require"; " to ask relief; "to summon"; "to call in Court"; "An imperative request preferred by one person to another requiring the latter to do or yield something or to abstain from some act;" "An asking with authority, claiming." The definition as pointed out above would show that the demand has to be communicated. It is an imperative request or a claim made.
19. From the evidence of Kamta Prasad (PW5), it has been clearly established that after Shashank was kidnapped a demand for ransom of Rs.5 lacs was communicated to him for his release and a threat was also communicated to him that in case ransom was not paid child would be killed. In our opinion, it is not always necessary to be proved that which particular accused made or communicated the demand.
(13) Cr.A.285/2002Cr.A.452/2002 Cr.A.459/2002
20. Section 364-A deals with "Kidnapping for ransom etc". This Section reads as follows:
"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 inter governmental organization 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."
This section refers to both "Kidnapping" and "Abduction". Section 359 defines Kidnapping. As per the said provision there are two types of kidnapping i.e. (1) kidnapping from India; and (2) kidnapping from lawful guardianship.
S.361 refers to "Kidnapping from lawful guardianship".- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
21. From the evidence adduced in the case, it is established that appellants Javed and Irfan took minor child Shashank on Heropuch moped out of the keeping of his lawful guardian. It has also been proved that accused Mukesh, who was known to Shashank, enticed him to go with Javed and Irfan on the moped on the pretext that his parents were in the hospital. It has also been proved that Shaskank was kept by accused Mohammad Ali in his house for about 7 days. Though he was not kept confined in any closed room or house but he was kept in village Dharna which was about 200 kms away from Jabalpur. He was a child of about 7 years (14) Cr.A.285/2002 Cr.A.452/2002 Cr.A.459/2002 of age who could not have gone to his house himself. He was kept there by extending assurance to him that his parents would come there to fetch him.
22. Common meaning of "detain" as given in Chambers 21st Century Dictionary is to stop, hold back, keep waiting or delay someone or something. Similarly "detention" means the act of detaining or the state of being detained. According to Collins Cobuild English Dictionary, to detain some one means to delay them or to keep some one in a place under the control of some one. In Black's Law Dictionary, "detention" means the act of keeping back or withholding, either accidentally or by design, a person or thing. Thus, it is clear that the fact of "detention' is depriving of a person of his personal liberty. In these circumstances, keeping Shashank at the house of Mohammad Ali would amount to "detention" after his kidnapping which is clearly punishable under section 364-A of the Indian Penal Code.
23. Mohammad Ali has also been convicted under section 368 read with section 364-A of the Indian Penal Code. S.368 read as follows:
"368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person.- Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement."
24. From the evidence of Shashank and other circumstances proved by the prosecution evidence, it has been amply established that accused/appellant Mohammad Ali had wrongfully concealed and kept Shashank in his house knowingly that he had been kidnapped, therefore, trial Court was justified in holding him guilty for the (15) Cr.A.285/2002 Cr.A.452/2002 Cr.A.459/2002 charge under section 368 read with section 364-A of the Indian Penal Code.
25. For the reasons stated above, we hold that the Court below has rightly appreciated the evidence on record and came to conclusion that the appellants were guilty of the offences charged. Accordingly, the finding of conviction recorded by the Court below and the sentence awarded to appellants is affirmed and the appeals are dismissed.
26. A copy of this judgment be kept in the record of Criminal Appeal No.452/2002 and Criminal Appeal No. 459/2002.
(Rakesh Saksena) (Smt. Sushma Shrivastava)
Judge Judge
b
(16) Cr.A.285/2002
Cr.A.452/2002
Cr.A.459/2002