Madhya Pradesh High Court
Rajjan vs The State Of Madhya Pradesh Thr. on 18 November, 2017
Author: Sheel Nagu
Bench: Sheel Nagu
1
CRA.625/2015 & CRA.626/2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(DB : SHEEL NAGU & S.A. DHARMADHIKARI, JJ.)
Criminal Appeal No. 625/2015
Rajjan
Vs.
State of M.P.
&
Criminal Appeal No. 626/2015
Rajjan
Vs.
State of M.P.
Whether reportable : Yes / No
_____________________________________________________
For Appellant
Shri T.C. Singhal, counsel for the appellant in both the appeals.
For Respondent
Shri B.P.S. Chauhan, Public Prosecutor for the respondent / State
in CRA.625/2015.
Shri R.K. Awasthi, Public Prosecutor for the respondent / State in
CRA.626/2015
---------------------------------------------------------------------------------------
JUDGMENT
( 18 . 11. 2017) Sheel Nagu, J.
1. The present order shall govern the disposal of CRA. 625/2015 and CRA. 626/2015.
2. The present appeals preferred u/s. 374(2) Cr.P.C. assail the judgment dated 31st March, 2003 passed in S.T. No. 38/2001 & 2 CRA.625/2015 & CRA.626/2015 S.T.39/2001 rendered by Second Additional Sessions Judge, Bhind whereby the trial Court has convicted and sentenced the appellant Rajjan as enumerated below :-
S.T. No. Conviction u/s Sentence Awarded 38/2001 364(A) IPC Life Rs. 5000/- with Imprisonment default stipulation. 39/2001 364 (a) / 34 Life Rs. 5000/- with IPC imprisonment default stipulation.
3. The bare facts giving rise to the present case are that arising out of an incident that took place in the night intervening 27 th and 28th February, 1999, two offences of like nature i.e. 364(A) / 34 IPC were registered separately as Crime No. 12/1999 and 13/1999 at Police Station Surpura, District Bhind against 23 accused including the appellant herein, who is common in both the present appeals. It so happened that the appellant was absconding and therefore, out of 23 accused the trial against 22 accused was commenced and concluded by judgment dated 20.09.2001 in S.T. No. 39/2001 in respect of crime No. 12/1999 and by judgment dated 19.09.2001 in S.T. No. 38/001 in respect of Crime No. 13/1999. In both these judgments all the 22 accused ( except the absconding appellant herein) were acquitted of the charges u/S. 364(A)/ 3, 212, 216(A) , 500 IPC and Section 25(1) (B) (A) / 27 of Arms Act.
3.1. The appellant herein was arrested late on 16.04.2002 whereafter he was subjected to trial which ended in the judgment dated 31.03.2003 convicting the appellant in both the cases u/s 364(A) / 34 IPC for life imprisonment with fine of Rs. 5000/- with default stipulation of 2 years further R.I. 3.2. Brief facts giving rise to the present case are that in the night intervening 27th and 28th February, 1999 abductee Ramsiya (PW-7) and Siyaram (PW-6) (in criminal appeal No. 625/2015) and abductee 3 CRA.625/2015 & CRA.626/2015 Jaswant (PW-8), Mukesh (PW-9) and Ramvilas (PW-7) ( in Criminal Appeal No. 626 /2015) were abducted by 15-16 armed miscreants by way of kidnapping / abduction and were taken to and confined in the ravines. When the abductees were not found by their family members a report in that regard was made Ex.P-1 pursuant to which crime No. 12/1999 ( in Criminal Appeal No. 626/2015) and Crime No. 13/1999 ( in Criminal Appeal No. 625/2015) were registered alleging offence punishable u/s 365/34 IPC. After completing the process of investigation and recording the statement of prosecution witnesses and declaring the appellant, as an absonder, perpetual warrant was issued pursuant to which the appellant was arrested on 16.04.2002 leading to filing of supplementary charge-sheet before the court of competent jurisdiction whereafter the case was committed to the court of Sessions on 23.07.2002. Charge u/s 364A / 34 IPC was framed in both the cases against the appellant who abjured guilt and sought trial by pleading that he has been falsely implicated in the case.
4. In criminal appeal No. 625/2015 (S.T. No. 38/2001) the prosecution in all produced fourteen witnesses namely Radhamohan (PW-1), Shrinath (PW-2), Prayag Devi (PW-3), Shrinarayan Sharma @ Bhoora (PW-4), Ramvilas (PW-5), Ratan Singh (PW-6), Ramsiya S/O Nawab Singh (PW-07), Siyaram (PW-8), Ramveer (PW-9), Jaswant (PW-10), Mukesh Kumar (PW-11), Ramvilas @ Gutte (PW-
12), P.K. Chaturvedi (PW-13), Ram Siya S/o Ramdayal (PW-14). Prosecution also exhibited documents from Ex.P-1 to Ex.P-9.
5. In criminal appeal No. 626/2015 (S.T. No. 39/2001) the prosecution in all produced fifteen witnesses namely Ramlal (PW-1), Ramveer (PW-2), Ramvilas (PW-3), Ratan Singh (PW-4), Ramsiya (PW-5), Sukhdhyan (PW-6), Vishvanath Garg (PW-07), Suresh Dubey (PW-8), Rafeeq Khan (PW-9), Narsingh (PW-10), Jaswant (PW-11), Mukesh Kumar (PW-12), Ramvilas @ Gutte (PW-13), P.K. Chaturvedi (PW-14) & Avdhesh Sharma (PW-15),. Prosecution also 4 CRA.625/2015 & CRA.626/2015 exhibited documents from Ex.P-1 to Ex.P-11.
AS REGARDS CRIMINAL APPEAL NO.625/2015
6. The abductee Siyaram (PW-6) did not support the story of the prosecution and was declared hostile. Infact PW-6 went to the extent of disclosing that the appellant was not one of the abductors / accused. The other abductee Ramsiya (PW-7) however supported the prosecution story. In his testimony PW-7 has stated that he had been abducted and confined and kept in the ravines and was released only after his father paid the ransom of Rs. 1,50,000/-. As regards the allegation of demand and payment of ransom, the father of PW-7 has not been examined.
6.1. The other witness in shape of PW-3 Ratan Singh has also turned hostile and has denied even knowing or having seen the appellant. Shri Nath (PW-2), who is brother of the abductee Siyaram has averred that Karu (son of Ramsiya one of the abductee) came to him in search of Ramsiya when he came to know of the incident. The said Karu, who happens to be the son of one of the abductee Ramsiya has not been examined. Radha Mohan Sharma (PW-1) is the complainant and son of one of the abductee Ramsiya has testified that he came to know that some persons have been abducted from village Surajpur and that Ramsiya has also been abducted. Whereafter PW-1 reported the matter to the police and informed the police of the spot where the abduction took place and signed on the spot map prepared by the police. PW-7 is the abductee Ramsiya who testifies that he was kidnapped by a gang comprising of several persons including the appellant. PW-7 further disclosed that he was released from captivity only after payment of ransom of Rs. 1,50,000/- was made. As regards factum of abduction and being confined for considerable period of time in the ravines, the said PW-7 could not be discredited by the defence in the cross-examination and stood by his version and supported the prosecution story. However, as far as acceptance of ransom is concerned, this witness in para 9 of his 5 CRA.625/2015 & CRA.626/2015 deposition has stated that despite he having disclosed to the police about the fact of being released after payment of ransom of Rs. 1,50,000/- by his father, this revelation is not contained in his statement u/s 161 C.P.C. Thus to the extent of factum of demand, payment and receipt of ransom money there appears to be improvement over his earlier statement recorded u/s 161 by PW-7. AS REGARDS CRIMINAL APPEAL NO. 626/2015
7. Abductee Mukesh (PW-2), abductee Ramvilas (PW-6) and abductee Jaswant (PW-7) deposed before the court on 14.07.2003, 18.08.2003 and 18.08.2003 respectively. Out of the said three abductees only one i.e. Jaswant (PW-7) disclosed that the appellant was one of the persons in the gang which abducted and kidnapped the said abductees in the night of 27.02.1999. However, this PW-7 was declared hostile to the prosecution as he categorically denied having seen the other co-accused. The other two abductees Mukesh (PW-2) and Ramvilas (PW-6) did not name the appellant as one of the abductors /kidnappers infact testimony of PW-2 is to the effect that he has not named any of the accused including the appellant except Bhoore Singh. While the other abductee Ramvilas (PW-6) has infact categorically denied that appellant was one of the abductors. 7.1 Ramlal (PW-1), Narsingh (PW-3) , Ramveer (PW-4), Avdhesh (PW-8) who are eyewitnesses have not implicated the appellant and have also not supported the story of the prosecution as such have been declared as hostile.
7.2 Pertinently, the statements of number of prosecution witnesses including Narsingh, Jaswant, Mukesh, Ramvilas and Ramlal were again recorded as PW-2, PW-3, PW-4, PW-5 and PW-6 respectively before the trial court and all of these witnesses categorically denied having seen the appellant on the fateful night among the kidnappers / abductors.
7.3 Thus, entire case of the prosecution in regard to the appellant in criminal appeal No. 626/2015 hinges upon the testimony of 6 CRA.625/2015 & CRA.626/2015 abductee Jaswant (PW-7), who has specifically named the appellant as one of the abductors. Thus the court is required to analyze the deposition of this witness and none others. Jaswant (PW-7), has by naming the appellant proved the fact of having been abducted along with Mukesh and Ramvilas. Thus factum of appellant having indulged in kidnapping / abduction of abductees appears of have been established by the deposition of PW-7 which has remained unimpeached in the cross-examination. In the testimony of Jaswant (PW-7) there is no disclosure of the said PW having been subjected to fear of death or injury or in regard to demand, payment and receipt of the amount of ransom. Thus, the only ingredient of "abduction for being confined in the ravines" has been established qua the appellant.
8. The trial court held the charge of kidnapping / abduction for ransom to be proved u/s 364A/34 IPC interalia recording the finding in para 7 of the impugned judgment that for establishing the offence punishable u/s 364A, it is not necessary to establish that the kidnapping and confinement was made only for extraction of ransom money but the requirement of the section is satisfied if it is proved that abductee was subjected to threat of death or hurt or put to reasonable apprehension that abductee may put to death or hurt.
9. Learned counsel for the appellant after taking us through the material available on record in shape of oral and documentary evidence of substantive and corroborative nature and the finding recorded by the learned trial Judge, does not dispute that there is sufficient evidence on record to establish that abductees were abducted and were confined. However, learned counsel for the appellant submits that there is no further evidence to establish that abductees were ever subjected to any threat of death or hurt or any reasonable apprehension of death or hurt and also that there is no evidence to substantiate the allegation of demand, payment and receipt of ransom amount.
7 CRA.625/2015 & CRA.626/201510. Before analyzing the evidence available on record on the anvil of the law in the field, it would be appropriate to reproduce Section 364(A) and Sec. 365 IPC, The latter being a lesser offence:-
"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 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.]
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."
11. From a bare reading of Section 364(A) IPC it is crystal clear that the same gets constituted on the establishment of following ingredients :-
(a) Kidnapping / abduction of any person or detaining a person after kidnapping him / her; and
(b) The said kidnapped / abducted person is subjected to threat of his death or hurt or is given to apprehension that such abductee or kidnapped person may be put to death or hurt or death is caused to such abductee or kidnapped person; and
(c) The act described in the above Clause (a) and (b) is done in order to compell any other person (not the abductee or the kidnapped person ) to do or abstain from doing any act or to pay the ransom.
12. The Apex Court in the case of Malleshi Vs. State of Karnataka; AIR 2004 SC 4865 and Akram Khan Vs. State of West 8 CRA.625/2015 & CRA.626/2015 Bengal; AIR 2012 SC 308 have succinctly interpreted the above said penal provision after analyzing the same in depth. The relevant extract is reproduce below :-
" Akram Khan Vs. State of West Bengal; AIR 2012 SC 308 (Para:16) "16. In Malleshi Vs. State of Karnataka, (2004) 8 SCC 95 :
( AIR 2004 SC 4865 : 2004 AIR SCW 5585) , while considering the ingredients of Section 364 A IPC, this Court held as under:
"12. To attract the provisions of Sectoin 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....."
To pay a ransom, as stated in the above referred Section, in the ordinary sense means to pay the price or demand for ransom. This would show that the demand has to be communicated."
Malleshi Vs. State of Karnataka; AIR 2004 SC 4865 (Para:
12) "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; and (2) kept him under detention after such kidnapping and abduction; and (3) that the kidnapping or abduction was for ransom. Strong reliance was placed on a decision of the Delhi High Court in Netra Pal Vs. The State (NCT of Delhi) (2001 Crl. L.J. 1669) to contend that since the ransom demand was not conveyed to the father of PW 2, the intention to demand was not fulfilled."
13. From the above analysis, it is evident that if the abduction / kidnapping and keeping in detention after kidnapping / abduction is for ransom then the factum of ransom having been demanded, paid and accepted is required to be established. In the instant case none of the prosecution witnesses have made any statement as to the place, time and mode of making of demand of ransom money, payment and receipt of the same by the appellant. Omnibus allegation has been made by the abductee Ramsiya (PW-7) that he was released after ransom money was paid by his father. Father of Ramsiya, who is said to be the ransom giver, has not been subjected 9 CRA.625/2015 & CRA.626/2015 to examination by the prosecution. There is further no evidence from the statement of any of the abductees or other prosecution witnesses that at any point of time during the period confinement in the ravines they were put to any threat of death or hurt or were put to reasonable apprehension that death or hurt would be caused. In the absence of above said two important factors of threat or death / hurt to the abductees and the ransom money having been demanded, paid and received, the offence of kidnapping / abduction for ransom u/s 364A in the considered opinion of this Court is not made out.
14. Learned counsel for the State has made a valiant attempt by raising an argument that offence punishable u/s 364A IPC can be made out even in the absence of proof of demand, payment and receipt of ransom money. Learned counsel for the State has taken us through the expressions employed in Section 364 (A) especially "to do or abstain from doing any act" to contend that since the appellant prevented the abductees from doing any act by curtailing their freedom by confining them in the ravines for the considerable period of time, the offence u/s 364 (A) IPC is made out.
15. At first blush, the argument of learned counsel for the State appears to be impressive, however, in actuality deserves out right rejection as it arises from misreading of Section 364 (A). The expression "to do or abstain from doing any act" is relatable not to the abductee but to the person from whom the ransom is sought in lieu of release of the abductee.
16. It may not be out of place to mention here that similar view has been taken by the Coordinate Bench of this Court by relying upon the above said decision of the Apex Court in the case of Akram Khan and Malleshi (supra) in judgment dated 6th September, 2013 in Criminal Appeals No. 168/2004 & 255/2004.
17. The result of the above analysis and discussion is that in the absence of proof of abductees being subjected to threat or reasonable apprehension of threat of death or hurt and there being 10 CRA.625/2015 & CRA.626/2015 total absence of evidence to support the other factum of demand, payment and receipt of ransom money, this Court has no hesitation to hold that the appellant cannot be held guilty for the offence punishable u/s 364A IPC. However, since the prosecution is successful in proving that the abductees were abducted by a gang of persons including the appellant and the abductees were secretly and wrongfully confined for a considerable period of time, essential ingredients of Section 365 IPC appear to be made out and the appellant deserves to be convicted for an offence punishable u/s 365 IPC for both the offences arising out of Crime No. 12/1999 and 13/1999.
18. Accordingly, the Criminal Appeals No. 625/2015 and 626/2015 are disposed of in the following manner :-
(i) The conviction and sentence of the appellant u/s 364 (A) / 34 IPC rendered by the trial court in S.T. No. 38/2001 as well as S.T. No. 39/2001 is set aside.
(ii) However, the appellant is held guilty of the offence punishable u/s 365 IPC and is sentenced to suffer seven (7) years of R.I. in Criminal Appeal No. 625/2015 along with fine of Rs.5,000/- , in default of which to suffer further R.I. of Six (6) months. The amount of fine of Rs. 5000/- be adjusted against any amount already paid.
(iii) The appellant is also held guilty of the offence punishable u/s 365 IPC and is sentenced to suffer seven (7) years of R.I. in Criminal Appeal No. 626/2015 along with fine of Rs.5,000/- , in default of which to suffer further R.I. of Six (6) months. The amount of fine of Rs. 5000/- be adjusted against any amount already paid.
(iv) If the appellant has suffered the modified sentence in both the appeals he be released forthwith with his bail bonds stand discharged but in case appellant has not yet suffered the reduced / modified sentences in both the appeals then he shall 11 CRA.625/2015 & CRA.626/2015 surrender forthwith failing which the trial court is directed to apprehend him.
(Sheel Nagu) (S.A. Dharmadhikari)
Judge Judge
sarathe 18 /11/2017 18 /11/2017
Digitally signed by NAVEEN
NAVEEN KUMAR SARATHE
DN: c=IN, o=HIGH COURT
OF M.P. BENCH GWALIOR,
KUMAR
ou=P. A.,
postalCode=474011,
st=Madhya Pradesh,
SARATH
2.5.4.20=d66fc0344a8236b
c2353c1181fddfaa49a5daa
e514ecfff778d4b289301cb
0c1, cn=NAVEEN KUMAR
E SARATHE
Date: 2017.11.23 15:01:02
+05'30'