Madhya Pradesh High Court
The State Of Madhya Pradesh vs Shankar Singh Gurjar on 5 October, 2021
Author: Rajendra Kumar Srivastava
Bench: G.S.Ahluwalia, Rajeev Kumar Shrivastava, Rajendra Kumar Srivastava
-(1) CRA No. 625/2009
CRA No. 713/2009
CRA No.1046/2014
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: G.S.AHLUWALIA
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
Criminal Appeal No. 625/2009
Raghuveer Savita S/o Rambharosi @ Bharosi Lal
Versus
State of Madhya Pradesh
Criminal Appeal No.713/2009
Shailendra Sharma @ Sonu S/o Shrinivas Sharma
Versus
State of Madhya Pradesh
AND
Criminal Appeal No.1046/2014
State of Madhya Pradesh
Versus
Shankar Singh Gurjar and Ors.
--------------------------------------------------------------------------------
Shri Sumit Shrivastava with Shri Ayush Saxena, learned counsel
for appellant in Criminal Appeal No.625/2009.
Shri Pallav Tripathi, learned counsel for the appellant in Criminal
Appeal No.713/2009.
Shri C.P. Singh, learned counsel for appellant/State in Criminal
Appeal No.1046/2014.
Shri Madhukar Kulshreshtha, learned counsel for respondents in
Criminal Appeal No.1046/2014..
Shri C.P. Singh, learned counsel for State.
--------------------------------------------------------------------------------
Reserved on : 29th September, 2021
-(2) CRA No. 625/2009
CRA No. 713/2009
CRA No.1046/2014
Whether approved for reporting:
--------------------------------------------------------------------------------
JUDGEMENT
(Passed on 05/10/2021) Per Rajeev Kumar Shrivastava, J.:
This judgment shall govern the disposal of Criminal Appeal No. 625/2009 (Raghuveer Savita Vs. State of MP), Criminal Appeal No. 713/2009 (Shailendra Sharma @ Sonu vs. State of MP) and Criminal Appeal No.1046/2014 (State of M.P. vs. Shankar Singh Gurjar), as these three appeals arise out of Special Case No.91/2006 (Dacoity).
2. Appellant-Raghuveer Savita and appellant-Shailendra Sharma @ Sonu have preferred appeals under Section 374 of CrPC, against the judgment of conviction and sentence dated 7.9.2009 passed by Special Judge (MPDVPK Act) Morena (MP) in Special Case No.91/2006 (Dacoity), whereby Raghuveer Savita (appellant in Cri.Appeal No.625/2009) and Shailendra Sharma (appellant in Cri.Appeal No.713/2009) have been convicted under Sections 120-B, 364(A)/34 of IPC, Section 13 of MPDVPK Act, Section 302/34 of IPC and under Section 201 read with Section 34 of IPC and each of them has been sentenced to undergo 14 years RI with fine of Rs.500/- each for the offence under Section 120-B of IPC and in default of payment of fine, to undergo additional RI for three months each, life imprisonment with fine of Rs.1000/- each, in default of payment of fine, to undergo additional rigorous imprisonment of three months each for the offence under Section -(3) CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 364-A/34 of IPC; Three years RI each under Section 13 of MPDVPK Act; Life Imprisonment with fine of Rs.1000/- each, in default of payment of fine, to undergo additional rigorous imprisonment of three months each under Section 302/34 of IPC; Three years RI each with fine of Rs.500/- each, in default of payment of fine, to undergo additional rigorous imprisonment of three months each under Section 201 read with 34 of IPC. All the sentences were directed to run concurrently. While the State has preferred appeal against the accused No.1 Shankar Singh Gurjar S/o Soneram, Surendra Singh S/o Shankar Singh Gurjar and Kampoter Singh Gurjar @ Pappu S/o Ramjilal, who were acquitted by the same judgment.
3. The prosecution story in short is that on 23.6.2006 at around 7 pm the complainant Moharman Lal lodged the missing report of his grand son Shubham @ Shailu S/o Neeraj Sharma, aged around 10 years and has stated that his grand son Shubham @ Shailu went to the Variety Public School, Pati Gali, Morena for tuition. When Shubham not returned back at around 1.00 pm then he was searched to all the relevant places. His teacher told him that Shubham @ Shailu conveyed him that he was going to learn skating. That missing report was lodged and search was started. Till 1.7.2006 the missing child was not traced, hence, FIR under Section 365 of IPC was lodged in Crime No.450/2006. On 7.7.2006 information was given telephonically to the police that from the house of Shankar Singh Gurjar which was locked from the outside, foul smell was coming out. Hence, police reached the spot and opened the house. There the body of the deceased boy -(4) CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 was found in a plastic bag and it was kept over the shelf of lavatory and wall was constructed to hide the body of the deceased. The brick wall made was broken and body was recovered. Postmortem of the deceased was done wherein the doctor had opined that the cause of death was strangulation. The statements of prosecution witnesses were recorded wherein the prosecution witnesses Ramkrishan, Bajrangi, Bafatan, Ameena, Sonu Sharma, Ranjeeta had given evidence with regard to last seen theory and had stated that they had seen 15-16 days back the deceased Shubham along with two boys residents of first floor of the building. The dead body was identified by the prosecution witnesses. The accused Raghuveer and Shailendra Sharma were arrested. After completion of investigation, charge sheet was filed against the appellants/accused.
4. It is also found during investigation that the accused persons were knowing the grand father of the deceased got retired from police department thereby he had received retiral benefits of Rs. 3 to 4 Lacs. Therefore, the accused/appellants planned to get ransom and they abducted the deceased.
5. The trial Court framed charges under Sections 120, 364-A/120-B read with Section 13 of MPDVPK Act, in alternative under Sections 364-A/149 of IPC read with Section 13 of MPDVPK Act, under Section 302 read with Section 149 of IPC, in alternative under Section 302 read with Section 120-B of IPC and under Section 201 read with Section 149 of IPC. Appellants abjured their guilt and stated under Section 313 Cr.P.C. that they are innocent. They have not committed any offence. No defence -(5) CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 witness was produced. After marshalling the evidence available on record, the trial Court has convicted and sentenced the appellants as under :-
Name of Section Punishment Fine In default, accused punishment Raghuveer 120-B of 14 years RI 500/- Three Savita IPC months additional RI 364-A/34 Life Imprison- 1000/- Three of IPC ment months additional RI 13 of Three years RI - -
MPDVPK Act 302/34 of Life Imprison- 1000/- Three IPC ment months additional RI 201 read 3 years RI 500/- Three with 34 of months IPC additional RI Shailendra 120-B of 14 years RI 500/- Three Sharma @ IPC months Sonu additional RI 364-A/34 Life Imprison- 1000/- Three of IPC ment months additional RI 13 of Three years RI - -
MPDVPK
Act
-(6) CRA No. 625/2009
CRA No. 713/2009
CRA No.1046/2014
302/34 of Life Imprison- 1000/- Three
IPC ment months
additional
RI
201 read 3 years RI 500/- Three
with 34 of months
IPC additional
RI
6. The grounds raised in this appeal are that in the missing report there was no mention of commission of offence by the appellants, despite of it, convicting the appellants are erroneous. There is no direct or indirect involvement of the appellants. The evidence of Moharman Lal (PW/1), Bafatan (PW/2), Ameena (PW/3), Sonu (PW/4), Bajarangi (PW/5), Ramdeen (PW/6) and Niraj Sharma (PW/7) are inconsistent and lots of discrepancies are there. The prosecution story is unnatural. There is no any evidence against the present appellants. The present case is the case of no evidence. The appellants have not committed any offence. There was no pre-mediation or pre- meeting of mind. There is no eyewitness in the case. The entire prosecution story is based on mere surmises and conjunctures wherein the present appellants have been roped up. The dead body was recovered from the house of Shankar Singh Gurjar which was locked from outside. As per the postmortem report the deceased was strangulated, but there is no any evidence of committing the aforesaid act by the appellants.
7. It is also submitted by the learned counsel for the appellants that Neeraj Sharma (PW/7) is the father of the deceased -(7) CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 whose statement was recorded on 27.11.2007. However, in his entire statement he has not disclosed the name of the present appellants who have participated in the alleged commission of murder. Rather he has admitted that there was no enmity between him and Sonu @ Shailendra Sharma. There is no any ingredient of Section 364-A of IPC. Therefore, Section 364-A of IPC is not made out. Similarly, Section 11/13 of MPDVPK Act is also not made out as the prosecution is lacking of ingredients of aforesaid Sections. The appellants have been roped in this case only on the basis of hearsay evidence. There is no complete chain of circumstantial evidence against the appellants. Hence, prayed to allow the appeals.
8. Per Contra, learned State Counsel opposed the submissions and submitted that the prosecution has proved its case beyond reasonable doubt and there is sufficient evidence against the appellants. There is specific chain is made out of circumstantial evidence and the scientific evidence also corroborates the prosecution evidence. Hence, prayed for rejection of the Criminal Appeal No.625/2009 and Criminal Appeal No.713/2009 filed by the appellants Raghuveer Savita and Shailendra Sharma. It is further contended that the trial Court has erred in acquitting the accused Shankar Singh Gurjar, Surendra Singh and Kampoter Singh Gurjar @ Pappu. It is further submitted that Shankar Singh Gurjar, Surendra Singh and Kampoter Singh Gurjar @ Pappu were also the part of conspiracy. Hence, they have committed the alleged offence in furtherance of common object whereby they inserted the bundle of thread used for candle -(8) CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 preparation in the mouth of deceased Shubham whereby the case is also proved against Shankar Singh Gurjar, Surendra Singh and Kampoter Singh Gurjar. Hence, prayed to allow the appeal filed by the State being Criminal Appeal No.1046/2014.
9. Heard the learned counsel for the rival parties and perused the record.
10. In the present case, the following question emerges for consideration :
"(i) Whether the death of Shubham @ Shailu is an unnatural death and comes within the purview of culpable homicide that amounts to murder ?
(ii) Whether the deceased Shubham @ Shailu aged around 10 years was abducted on 23.06.2006?
(iii) Whether the deceased Shubham @ Shailu was abducted to get the ransom and thereafter accused/appellants murdered him?
(iv) Whether the accused/appellants had caused disappearance of evidence by hiding the dead body of deceased in a lavatory shelf and closed the shelf by constructing brick wall?
(v) Whether the aforesaid act was done in furtherance of common object?-( 9 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014
11. Before considering the merits of the case, it would be appropriate to throw light on relevant provisions of Sections 299 and 300 of Indian Penal Code.
12. The Law Commission of United Kingdom in its 11th Report proposed the following test :
"The standard test of 'knowledge' is, Did the person whose conduct is in issue, either knows of the relevant circumstances or has no substantial doubt of their existence?"
[See Text Book of Criminal Law by Glanville Wiliams (p.125)] "Therefore, having regard to the meaning assigned in criminal law the word "knowledge" occurring in clause Secondly of Section 300 IPC imports some kind of certainty and not merely a probability. Consequently, it cannot be held that the appellant caused the injury with the intention of causing such bodily injury as the appellant knew to be likely to cause the death of Shri Ahirwar. So, clause Secondly of Section 300 IPC will also not apply."
13. The enquiry is then limited to the question whether the offence is covered by clause Thirdly of Section 300 IPC. This clause, namely, clause Thirdly of Section 300 IPC reads as under: -
"Culpable homicide is murder, if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."
The argument that the accused had no intention to cause death is wholly fallacious for judging the scope of clause Thirdly of Section 300 IPC as the words "intention of causing death" occur in clause Firstly and not in clause Thirdly. An offence would still fall within clause Thirdly even though the offender did not intend to cause death so long as the death ensues from the intentional bodily injury and the injuries are sufficient to cause death in the -( 10 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 ordinary course of nature. This is also borne out from illustration
(c) to Section 300 IPC which is being reproduced below: -
"(c) A intentionally gives Z a sword-cut or club-
wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death."
Therefore, the contention advanced in the present case and which is frequently advanced that the accused had no intention of causing death is wholly irrelevant for deciding whether the case falls in clause Thirdly of Section 300 IPC.
14. The scope and ambit of clause Thirdly of Section 300 IPC was considered in the decision in Virsa Singh vs. State of Punjab, [AIR 1958 SC 465], and the principle enunciated therein explains the legal position succinctly. The accused Virsa Singh was alleged to have given a single spear blow and the injury sustained by the deceased was "a punctured wound 2" x =" transverse in direction on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal. Three coils of intestines were coming out of the wound." After analysis of the clause Thirdly, it was held: -
"The prosecution must prove the following facts before it can bring a case under S. 300 "Thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This -( 11 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout), the offence is murder under S. 300 "Thirdly". It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death."
15. In Arun Nivalaji More vs. State of Maharashtra (Case No. Appeal (Cri.) 1078-1079 of 2005), it has been observed as under :-
"11. First it has to be seen whether the offence falls within the ambit of Section 299 IPC. If the offence falls under Section 299 IPC, a further enquiry has to be made whether it falls in any of the clauses, namely, clauses 'Firstly' to 'Fourthly' of Section 300 IPC. If the offence falls in any one of these clauses, it will be murder as defined in Section 300IPC, which will be punishable under Section 302 IPC. The offence may fall in any one of the four clauses of Section 300 IPC yet if it is covered by any one of the five exceptions mentioned therein, the culpable homicide committed by the offender would not be murder and the offender would not be liable for conviction under Section 302 IPC. A plain reading of Section 299 IPC will show that it contains three clauses, in two clauses it is the intention of the offender which is relevant and is the dominant factor and in the third clause the knowledge of the offender which is relevant and is the dominant factor. Analyzing Section 299 as aforesaid, it becomes clear that a person -( 12 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 commits culpable homicide if the act by which the death is caused is done
(i) with the intention of causing death;
or
(ii) with the intention of causing such bodily injury as is likely to cause death; or
(iii) with the knowledge that the act is likely to cause death."
If the offence is such which is covered by any one of the clauses enumerated above, but does not fall within the ambit of clauses Firstly to Fourthly of Section 300 IPC, it will not be murder and the offender would not be liable to be convicted under Section 302 IPC. In such a case if the offence is such which is covered by clauses (i) or (ii) mentioned above, the offender would be liable to be convicted under Section 304 Part I IPC as it uses the expression "if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death"
where intention is the dominant factor. However, if the offence is such which is covered by clause (iii) mentioned above, the offender would be liable to be convicted under Section 304 Part II IPC because of the use of the expression "if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death" where knowledge is the dominant factor.
12. What is required to be considered here is whether the offence committed by the appellant falls within any of the clauses of Section 300 IPC.
13. Having regard to the facts of the case it can legitimately be urged that clauses Firstly and Fourthly of Section 300 IPC were not attracted. The expression "the offender knows to be likely to cause death" occurring in clause Secondly of Section 300 IPC lays emphasis on knowledge. The dictionary meaning of the word 'knowledge' is the fact or condition of being cognizant, conscious or aware of something; to be assured or being acquainted -( 13 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 with. In the context of criminal law the meaning of the word in Black's Law Dictionary is as under: -
"An awareness or understanding of a fact or circumstances; a state of mind in which a person has no substantial doubt about the existence of a fact. It is necessary ... to distinguish between producing a result intentionally and producing it knowingly. Intention and knowledge commonly go together, for he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends them. But there may be intention without knowledge, the consequence being desired but not foreknown as certain or even probable. Conversely, there may be knowledge without intention, the consequence being foreknown as the inevitable concomitant of that which is desired, but being itself an object of repugnance rather than desire, and therefore not intended."
In Blackstone's Criminal Practice the import of the word 'knowledge' has been described as under: -
"'Knowledge' can be seen in many ways as playing the same role in relation to circumstances as intention plays in relation to consequences. One knows something if one is absolutely sure that it is so although, unlike intention, it is of no relevance whether one wants or desires the thing to be so. Since it is difficult ever to be absolutely certain of anything, it has to be accepted that a person who feels 'virtually certain' about something can equally be regarded as knowing it."
16. Section 299 of Indian Penal Code runs as under :-
"299. Culpable homicide.-- Wheoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable -( 14 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 homicide."
17. Section 299 of IPC says, whoever causes death by doing an act with the bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Culpable homicide is the first kind of unlawful homicide. It is the causing of death by doing :
(i) an act with the intention of causing death;
(ii) an act with the intention of causing such bodily injury as is likely to cause death; or
(iii) an act with the knowledge that it is was likely to cause death.
Without one of these elements, an act, though it may be by its nature criminal and may occasion death, will not amount to the offence of culpable homicide. 'Intent and knowledge' as the ingredients of Section 299 postulate, the existence of a positive mental attitude and the mental condition is the special mens rea necessary for the offence. The knowledge of third condition contemplates knowledge of the likelihood of the death of the person. Culpable homicide is of two kinds : one, culpable homicide amounting to murder, and another, culpable homicide not amounting to murder. In the scheme of the Indian Penal Code, culpable homicide is genus and murder is species. All murders are culpable homicide, but not vice versa. Generally speaking, culpable homicide sans the special characteristics of murder is culpable homicide not amounting to murder. In this section, both the expressions 'intent' and 'knowledge' postulate the existence of a positive mental attitude which is of different degrees.
18. Section 300 of Indian Penal Code runs as under :-
"300. Murder.-- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly.-- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the -( 15 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 person to whom the harm is caused, or--
Thirdly.-- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly.-- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
19. 'Culpable Homicide' is the first kind of unlawful homicide. It is the causding of death by doing ; (i) an act with the intention to cause death; (ii) an act with the intention of causing such bodily injury as is likely to cause death; or, (iii) an act with the knowledge that it was likely to cause death.
20. Indian Penal Code reconizes two kinds of homicides :
(1) Culpable homicide, dealt with between Sections 299 and 304 of IPC (2) Not-culpable homicide, dealt with by Section 304-A of IPC. There are two kinds of culpable homicide; (i) Culpable homicide amounting to murder (Section 300 read with Section 302 of IPC), and (ii) Culpable homicide not amounting to murder (Section 304 of IPC).
21. A bare perusal of the section makes it crystal clear that the first and the second clauses of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not the intention. Both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e., mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed.
22. There are three species of mens rea in culpable homicide. (1) An intention to cause death; (2) An intention to cause -( 16 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 a dangerous injury; (3) Knowledge that death is likely to happen.
23. The fact that the death of a human being is caused is not enough unless one of the mental staes mentioned in ingredient of the Section is present. An act is said to cause death results either from the act directly or results from some consequences necessarily or naturally flowing from such act and reasonably contemplated as its result. Nature of offence does not only depend upon the location of injury by the accused, this intention is to be gathered from all facts and circumstances of the case. If injury is on the vital part, i.e., chest or head, according to medical evidence this injury proved fatal. It is relevant to mention here that intention is question of fact which is to be gathered from the act of the party. Along with the aforesaid, ingredient of Section 300 of IPC are also required to be fulfilled for commission of offence of murder.
24. In the scheme of Indian Penal Code, "Culpable homicide" is genus and "murder" is its specie. All "Murder" is "culpable homicide" but not vice versa. Speaking generally 'culpable homicide sans special characteristics of murder' if culpable homicide is not amounting to murder.
25. In Anda vs. State of Rajasthan [1966 CrLJ 171), while considering "third" clause of Section 300 of IPC, it has been observed as follows :-
"It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on sufficiency of injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and causing of such injury was intended, the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature."
26. In Mahesh Balmiki vs. State of M.P. [(2000) 1 SCC -( 17 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 319, while deciding whether a single blow with a knife on the chest of the deceased would attract Section 302 of IPC, it has been held thus :-
"There is no principle that in all cases of single blow Section 302 I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death."
27. In Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat [(2003) 9 SCC 322, it has been observed as under :-
"The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may -( 18 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.
28. In Pulicherla Nagaraju @ Nagaraja vs. State of AP -( 19 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 [(2006) 11 SCC 444, while deciding whether a case falls under Section 302 or 304 Part-I or 304 Part-II, IPC, it was held thus :-
"Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of -( 20 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 intention. Be that as it may."
29. In Sangapagu Anjaiah v. State of A.P. (2010) 9 SCC 799, Hon'ble Apex Court while deciding the question whether a blow on the skull of the deceased with a crowbar would attract Section 302 IPC, held thus:
"16. In our opinion, as nobody can enter into the mind of the accused, his intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused. Here, the appellant had chosen a crowbar as the weapon of offence. He has further chosen a vital part of the body i.e. the head for causing the injury which had caused multiple fractures of skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads to one and the only conclusion that the appellant intended to cause death of the deceased."
30. In State of Rajasthan v. Kanhaiyalal (2019) 5 SCC 639, this it has been held as follows:
"7.3 In Arun Raj [Arun Raj v.
Union of India, (2010) 6 SCC 457 : (2010) 3 SCC (Cri) 155] this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of the deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.
7.4 In Ashokkumar Magabhai Vankar [Ashokkumar Magabhai Vankar v. State of Gujarat , (2011) 10 SCC 604 : (2012) 1 SCC (Cri) 397] , the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall -( 21 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 under Section 302 or Exception 4 to Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also knowledge of the accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part of the body, with such a weapon, would cause death.
7.5 A similar view is taken by this Court in the recent decision in Leela Ram (supra) and after considering catena of decisions of this Court on the issue on hand i.e. in case of a single blow, whether case falls under Section 302 or Section 304 Part I or Section 304 Part II, this Court reversed the judgment and convicted the accused for the offence under Section 302 IPC. In the same decision, this Court also considered Exception 4 of Section 300 IPC and observed in para 21 as under: (SCC para 21) "21. Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are: (i) that the act was committed without premeditation;
(ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner."
31. In the case of Bavisetti Kameswara Rao v. State of A.P. (2008) 15 SCC 725 , it is observed in paragraphs 13 and 14 as under:
"13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the -( 22 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be very many, they being (i) whether the act was premeditated; (ii) the nature of weapon used; (iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screwdriver, the learned counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the accused in his business, it could not be as if its user would be innocuous.
14. In State of Karnataka v. Vedanayagam [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] this Court considered the usual argument of a single injury not being sufficient to invite a conviction under Section 302 IPC. In that case the injury was caused by a knife. The medical evidence supported the version of the prosecution that the injury was sufficient, in the ordinary course of nature to cause death. The High Court had convicted the accused for the offence under Section 304 Part II IPC relying on the fact that there is only a single injury. However, after a detailed discussion regarding the nature of injury, the part of the body chosen by the accused to inflict the same and other attendant circumstances and after discussing clause Thirdly of Section 300 IPC and further relying on the decision in Virsa Singh vs. State of Punjab [AIR 1958 SC 465] , the Court set aside the acquittal under Section 302 IPC and convicted the accused for that offence. The Court (in Vedanayagam case [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] , SCC p. 330, para 4) relied on the observation by Bose, J. in Virsa Singh case [AIR 1958 SC 465] to suggest that: (Virsa Singh case [AIR 1958 SC 465], AIR p. 468, para 16) -( 23 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 "16. With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap."
The further observation in the above case were:
(Virsa Singh case [AIR 1958 SC 465] , AIR p. 468, paras 16 & 17) "16. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there.
The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.
17. ... It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that -( 24 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact."
32. Section 364(A) of Indian Penal Code runs as under :-
"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."
33. Section 365 of Indian Penal Code runs as under :-
"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."
34. It is relevant to point out that Section 364A of IPC had been introduced in the Indian Penal Code by virtue of Amendment Act 42 of 1993. The Statement of Objects and Reasons are as follows :-
"Statement of Objects and Reasons.-- Kidnapping by terrorists for ransom, for creating panic amongst the people and for securing release of -( 25 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 arrested associates and cadres have assumed serious dimensions. The existing provisions of law have proved to be inadequate as deterrence. The Law Commission in its 42 nd Report has also recommended a specific provision to deal with this menace. It was necessary to amend the Indian Penal Code to provide for deterrent punishment to persons committing such acts and to make consequential amendments to the Code of Criminal Procedure, 1973."
35. While considering the facts of the present case, it would be appropriate to deal with the relevant provisions along with the dictum of various Courts.
36. Section 364(A) of IPC is attracted and a person/accused is convicted only if the prosecution proves following ingredients :-
(i) the accused must have kidnapped, abducted or detained any person;
(ii) he must have kept such person in custody or detention; and,
(iii) kidnapping, abduction or detention must have been for ransom. To pay a ransom, in the ordinary sense means to pay the price or demand for ransom. This would show that the demand has to be communicated.
37. In Omprakash Shrivastava vs. State [2007 CrLJ 696 (Del), it is observed that to establish a charge of kidnapping for ransom a demand for ransom has to be made and it should be properly communicated not only to the third person but also to the victim himself. It was held that this plea will not be entertained that ransom demand was made to the complainant/victim himself and not to any other person.
38. Hon'ble Apex Court in Shaik Ahmed vs. State of Telangana (Criminal Appeal No. 533 of 2021, decided on 28 th June, 2021), has observed as under :-
"7. From the submissions made by the learned -( 26 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 counsel for the parties and materials on record, following questions arise for consideration in this appeal:-
I. What are the essential ingredients of Section 346A to be proved beyond reasonable doubt by the prosecution for securing the conviction of an accused under Section 364A IPC?
II. Whether each and every ingredient as mentioned under Section 364A needs to be proved for securing conviction under Section 364A and non-establishment of any of the conditions may vitiate the conviction under Section 364A IPC? III. Whether the learned Sessions Judge as well as the High Court recorded any finding that all ingredients of Section 364A were proved by the prosecution? IV. Whether there was any evidence or findings by the Courts below that the accused had threatened to cause death or hurt to the victim or by his conduct gave rise to a reasonable apprehension that victim may be put to death or hurt?
8. The appeal having arisen out of order of conviction under Section 364A, we need to notice the provisions of Section 364A IPC before proceeding further to consider the points for consideration.
9. Sections 359 to 374 of the Indian Penal Code are contained in the heading "of Kidnapping, Abduction, Slavery and Forced Labour". Offence of Kidnapping for lawful guardianship is defined under Section 361 and Section 363 provides for punishment for kidnapping. Section 364 deals with kidnapping or abduction in order to murder.
10. The Law Commission of India took up the revision of Indian Penal Code and submitted its report, i.e., 42nd Report (June, 1971). In Chapter 16, offences affecting the human body was dealt with.
The chapter on kidnapping and abduction was dealt by the Commission in paragraphs 16.91 to 16.112. Section 364 and 364A was dealt by the Commission in paragraphs 16.99 to 16.100 which are as follows:-
"16.99. Section 364 punishes the offence of kidnapping or abduction of a person in order to murder him, the maximum punishment being -( 27 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 imprisonment for life or for ten years. In view of our general recommendation as to imprisonment for life, we propose that life imprisonment should be omitted and term imprisonment increased to 14 years.
The illustrations to the section do not elucidate any particular ingredient of the offence and should be omitted.
16.100. We consider it desirable to have a specific section to punish severely kidnapping or abduction for ransom, as such cases are increasing. At present, such kidnapping or abduction is punishable under section 365 since the kidnapped or abducted person will be secretly and wrongfully confined.
We also considered the question whether a provision for reduced punishment in case of release of the person kidnapped without harm should be inserted, but we have come to the conclusion that there is no need for it. We propose the following section:-
"364A. Kidnapping or abduction for ransom .--Whoever kidnaps or abducts any person with intent to hold that person for ransom shall be punished with rigorous imprison- ment for a term which may extend to 14 years, and shall also be liable to fine."
11. Although the Law Commission has in paragraph 16.100 proposed Section 364A, which only stated that whoever kidnaps or abducts any person with intent to hold that person for ransom be punished for a term which may extend to 14 years. Parliament while inserting Section 364A by Act No.42 of 1993 enacted the provision in a broader manner also to include kidnapping and abduction to compel the Government to do or abstain from doing any act or to pay a ransom which was further amended and amplified by Act No.24 of 1995. Section 364A as it exists after amendment is as follows:-
"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 -( 28 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 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 12 punishable with death, or imprisonment for life, and shall also be liable to fine."
12. We may now look into section 364A to find out as to what ingredients the Section itself contemplate for the offence. When we paraphrase Section 364A following is deciphered:-
(i) "Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction"
(ii) "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,
(iii) 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"
(iv) "shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
13. The first essential condition as incorporated in Section 364A is "whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction". The second condition begins with conjunction "and". The second condition has also two parts, i.e., (a) threatens to cause death or hurt to such person or (b) by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt. Either part of above condition, if fulfilled, shall fulfill the second condition for offence. The third condition begins with the word "or", i.e., or causes hurt or death to such person in order to compel the Government or any foreign State or international -( 29 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom. Third condition begins with the word "or causes hurt or death to such person in order to compel the Government or any foreign state to do or abstain from doing any act or to pay a ransom". Section 364A contains a heading "kidnapping for ransom, etc." The kidnapping by a person to demand ransom is fully covered by Section 364A.
14. We have noticed that after the first condition the second condition is joined by conjunction "and", thus, 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.
15. The use of conjunction "and" has its purpose and object. Section 364A uses the word "or" nine times and the whole section contains only one conjunction "and", which joins the first and second condition. Thus, for covering an offence under Section 364A, apart from fulfillment of first condition, the second condition, i.e., "and threatens to cause death or hurt to such person" also needs to be proved in case the case is not covered by subsequent clauses joined by "or".
16. The word "and" is used as conjunction. The use of word "or" is clearly distinctive. Both the words have been used for different purpose and object. Crawford on Interpretation of Law while dealing with the subject "disjunctive" and "conjunctive" words with regard to criminal statute made following statement:-
"..........................The Court should be extremely reluctant in a criminal statute to substitute disjunctive words for cojunctive words, and vice versa, if such action adversely affects the accused."
17. We may also notice certain judgments of this court where conjunction "and" has been used. In Punjab Produce and Trading Co. Ltd. Vs. The CIT, West Bengal, Calcutta (1971) 2 SCC 540, this Court had occasion to consider Section 23-A Explanation b(iii) of Income Tax Act, 1922 which provision has been extracted in paragraph 5 of the judgment which -( 30 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 is to the following effect:-
"Explanation. -- For the purposes of this section a company shall be deemed to be a company in which the public are substantially interested--
(a) If it is a company owned by the Government or in which not less than forty per cent of the shares are held by the Government. (b) If it is not a private company as defined in the Indian Companies Act, 1913 (7 of 1913) and--
(i) its shares (not being shares entitled to a fixed rate of dividend, whether with or without a further right to participate in profits) carrying not less than fifty per cent of the voting power have been allotted unconditionally to, or acquired unconditionally by, and were throughout the previous year beneficially held by the public (not including a company to which the provisions of this section apply):
Provided that in the case of any such company as is referred to in sub-section (4), this sub-clause shall apply as if for the words 'not less than fifty per cent' the words 'not less than forty per cent', had been substituted;
(ii) the said shares were at any time during the previous year the subject of dealing in any recognised stock exchange in India or were freely transferable by the holder to other members of the public; and
(iii) the affairs of the company or the shares carrying more than fifty per cent of the total voting power were at no time during the previous year controlled or held by less than six persons (persons who are related to one another as husband, wife, lineal ascendant or descendant or brother or sister, as the case may be, being treated as a single person and persons who are nominees of another person -( 31 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 together with that other person being likewise treated as a single person:
Provided that in the case of any such company as is referred to in sub-section (4), this clause shall apply as if for the words 'more than fifty per cent', the words 'more than sixty per cent', had been substituted."
18. This Court held following in paragraph 8:-
"8. ........................The clear import of the opening part of clause (b) with the word "and" appearing there read with the negative or disqualifying conditions in sub-clause (b)
(iii) is that the assessee was bound to satisfy apart from the conditions contained in the other subclauses that its affairs were at no time during the previous year controlled by less than six persons and shares carrying more than 50 per cent of the total voting power were during the same period not held by less than six persons............................"
19. In another judgment, Hyderabad Asbestos Cement Products and Anr. Vs. Union of India, (2000) 1 SCC 426, this Court had occasion to consider Rule 56-A of Central Excise Act, 1944. The Court dealt with interpretation of conjunctive and disjunctive "and", "or". Proviso to Rule 56-A also uses the conjunctive word "and". The Provision of the Rule as quoted in paragraph 4 is as below:-
"56-A. Special procedure for movement of duty-paid materials or component parts for 18 use in the manufacture of finished excisable goods.--(1) Notwithstanding anything contained in these rules, the Central Government may, by notification in the Official Gazette, specify the excisable goods in respect of which the procedure laid down in sub-rule (2) shall apply. (2) The Collector may, on application made in this behalf and subject to the conditions mentioned in sub-rule (3) and such other conditions as may, from time to time, be prescribed by the Central Government, -( 32 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 permit a manufacturer of any excisable goods specified under sub-rule (1) to receive material or component parts or finished products (like asbestos cement), on which the duty of excise or the additional duty under Section 2-A of the Indian Tariff Act, 1934 (32 of 1934), (hereinafter referred to as the countervailing duty), has been paid, in his factory for the manufacture of these goods or for the more convenient distribution of finished product and allow a credit of the duty already paid on such material or component parts or finished product, as the case may be:
Provided that no credit of duty shall be allowed in respect of any material or component parts used in the manufacture of finished excisable goods--
(i) if such finished excisable goods produced by the manufacturer are exempt from the whole of the duty of excise leviable thereon or are chargeable to nil rate of duty, and
(ii) unless--
(a) duty has been paid for such material or component parts under the same item or sub-item as the finished excisable goods; or
(b) remission or adjustment of duty paid for such material or component parts has been specifically sanctioned by the Central Government:
Provided further that if the duty paid on such material or component parts (of which credit has been allowed under this sub-rule) be varied subsequently due to any reason, resulting in payment of refund to, or recovery of more duty from, the manufacturer or importer, as the case may be, of such material or component parts, the credit allowed shall be varied accordingly by adjustment in the credit account maintained under sub-rule (3) or in the accountcurrent maintained under sub- rule (3) or Rule 9 or Rule 178(1) or, if such adjustment be not possible for any reason, by cash recovery from or, as the case may be, refund to the manufacturer -( 33 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 availing of the procedure contained in this rule."
20. This court held that when the provisos 1 & 2 are separated by conjunctive word "and", they have to be read conjointly. The requirement of both the proviso has to be satisfied to avail the benefit. Paragraph 8 is as follows:-
"8. The language of the rule is plain and simple. It does not admit of any doubt in interpretation. Provisos (i) and (ii) are separated by the use of the conjunction "and".
They have to be read conjointly. The requirement of both the provisos has to be satisfied to avail the benefit. Clauses (a) and
(b) of proviso (ii) are separated by the use of an "or" and there the availability of one of the two alternatives would suffice. Inasmuch as cement and asbestos fibre used by the appellants in the manufacture of their finished excisable goods are liable to duty under different tariff items, the benefit of pro forma credit extended by Rule 56-A cannot be availed of by the appellants and has been rightly denied by the authorities of the Department."
21. Thus, applying the above principle of interpretation on condition Nos. 1 & 2 of Section 364A which is added with conjunction "and", we are of the view that condition No.2 has also to be fulfilled before ingredients of Section 364A are found to be established. Section 364A also indicates that in case the condition "and threatens to cause death or hurt to such person" is not proved, there are other classes which begins with word "or", those conditions, if proved, the offence will be established. The second condition, thus, as noted above is divided in two parts- (a) and threatens to cause death or hurt to such person or (b) by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt.
22. Now, we may look into few cases of this Court where different ingredients of Section 364A came for consideration. We may first notice the judgment of this Court in Malleshi Vs. State of Karnataka, (2004) 8 SCC 95. The above was a case where kidnapping of a major boy was made by the accused -( 34 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 for ransom and before this Court argument was raised that demand of ransom has not been established. In the above case, the Court referred to Section 364A and in paragraph 12 following was observed:-
"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. Strong reliance was placed on a decision of the Delhi High Court in Netra Pal v. State (NCT of Delhi) [2001 Cri LJ 1669 (Del)] to contend that since the ransom demand was not conveyed to the father of PW 2, the intention to demand was not fulfilled."
23. This court in paragraphs 13 to 15 dealt with demand for ransom and held that demand originally was made to person abducted and the mere fact that after making the demand the same could not be conveyed to some other person as the accused was arrested in meantime does not take away the effect of conditions of Section 364A. In the above case, this Court was merely concerned with ransom, hence, other conditions of Section 364A were not noticed.
24. The next judgment is Anil alias Raju Namdev Patil Vs. Administration of Daman & Diu, Daman and Another, (2006) 13 SCC 36. In the above case, this Court noticed the ingredients for commission of offence under Section 364 and 364A. Following was laid down in paragraph 55:-
"55. ...........................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 organi- sation or any other person to do or abstain from doing any act or to pay a ransom."-( 35 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014
25. At this stage, we may also notice the judgment of this Court in Suman Sood alias Kamaljeet Kaur Vs. State of Rajasthan (2007) 5 SCC 634. In the above case, Suman Sood and her husband Daya Singh Lahoria were accused in the case of abduction. They were tried for offence under Section 364A, 365, 343 read with Section 120-B and 346 read with Section 120-B. The trial court convicted the appellant for offence under Sections 365 read with 120-B, 343 read with 120-B and 346 read with 120- B. She was, however, acquitted for offence punishable under Section 364-A. Her challenge against conviction and sentence for offences punishable under Sections 365 read with 120- B, 343 read with 120-B and 346 read with 120-B IPC was negatived by the High Court. But her acquittal for offences punishable under Sections 364-A read with 120-B was set aside by the High Court in an appeal and she was also convicted for the offence under Section 364A and was sentenced to life imprisonment. In the appeal filed by her challenging her conviction under Section 364A, this Court dealt with acquittal of Suman Sood under Section 364A by trial Court. In Paragraph 64 this court noticed as follows:-
"64. According to the trial court, the prosecution had failed to prove charges against Suman Sood for an offence punishable under Sections 364-A or 364-A read with 120-B IPC "beyond reasonable doubt" inasmuch as no reliable evidence had been placed on record from which it could be said to have been established that Suman Sood was also a part of "pressurise tactics" or had terrorised the victim or his family members to get Devendra Pal Singh Bhullar released in lieu of Rajendra Mirdha. The trial court, therefore, held that she was entitled to benefit of doubt."
26. The findings of trial court that no reliable evidence had been placed on record from which it could be said to have been established that Suman Sood was also a part of pressurise tactics or has terrorized the victim or his family. This court approved the acquittal of Suman Sood by trial court and set aside the order of the High Court convicting Suman Sood. In paragraph 71 following was held by -( 36 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 this Court:-
"71. On the facts and in the circumstances in its entirety and considering the evidence as a whole, it cannot be said that by acquitting Suman Sood for offences punishable under Sections 364-A read with 120-B IPC, the trial court had acted illegally or unlawfully. The High Court, therefore, ought not to have set aside the finding of acquittal of accused Suman Sood for an offence under Sections 364-A read with 120-B IPC. To that extent, therefore, the order of conviction and sentence recorded by the High Court deserves to be set aside."
27. Thus, the trial court's findings that there was no evidence that Suman Sood was part of pressurize tactics or terrorized the victim or his family members, hence, due to non-fulfillment of the condition as enumerated in Section 364A, the trial court recorded the acquittal, which has been confirmed by this Court. The above case clearly establishes that unless all conditions as enumerated in Section 364A are fulfilled, no conviction can be recorded.
28. Now, we come to next judgment, i.e., Vishwanath Gupta Vs. State of Uttaranchal (2007) 11 SCC 633. In the above case, the victims were abducted from district of Lucknow, State of U.P. demands for ransom and threat was extended from another district, i.e., Nainital and the victim was done to death in another district, i.e., Unnao in the State of U.P. This Court had occasion to consider the ingredients of Section 364A and in paragraphs 8 and 9, the following was laid down:-
"8. According to Section 364-A, whoever kidnaps or abducts any person and keeps him in detention and threatens to cause death or hurt to such person and by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, and claims a ransom and if death is caused then in that case the accused can be punished with death or imprisonment for life and also liable to pay fine.
9. The important ingredient of Section -( 37 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 364-A is the abduction or kidnapping, as the case may be. Thereafter, a threat to the kidnapped/abducted that if the demand for ransom is not met then the victim is likely to be put to death and in the event death is caused, the offence of Section 364-A is complete. There are three stages in this section, one is the kidnapping or abduction, second is threat of death coupled with the demand of money and lastly when the demand is not met, then causing death. If the three ingredients are available, that will constitute the offence under Section 364- A of the Penal Code. Any of the three ingredients can take place at one place or at different places. In the present case the demand of the money with the threat perception had been made at (Haldwani) Nainital. The deceased were kidnapped at Lucknow and they were put to death at Unnao. Therefore, the first offence was committed by the accused when they abducted Ravi Varshney and Anoop Samant at Lucknow. Therefore, Lucknow court could have territorial jurisdiction to try the case."
29. This Court in the above case, laid down that there are three stages in the Section, one is kidnapping or abduction, second is threat of death coupled with demand of money and third when the demand is not met, then causing death. The Court held that if the three ingredients are available that will constitute the offence under Section 364 of the IPC. Dealing with Section 364A in context of above case, following was laid down in paragraph 17:-
"17. ...............But here, in the case of Section 364-A something more is there, that is, that a person was abducted from Lucknow and demand has been raised at Haldwani, Nainital with threat. If the amount is not paid to the abductor then the victim is likely to be put to death. In order to constitute an offence under Section 364-A, all the ingredients have not taken place at Lucknow or Unnao. The two incidents took place in the State of Uttar Pradesh, that is, abduction and -( 38 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 death of the victims but one of the ingredient took place, that is, threat was given at the house of the victims at Haldwani, Nainital demanding the ransom money otherwise the victim will be put to death. Therefore, one of the ingredients has taken place within the territorial jurisdiction of Haldwani, Nainital. Therefore, it is a case wherein the offence has taken place at three places i.e. at Haldwani, Nainital, where the threat to the life of the victim was given and demand of money was raised, the victim was abducted from Lucknow and he was ultimately put to death at Unnao. ......................"
30. Next case which needs to be noticed is a Three Judge Bench Judgment of this Court in Vikram Singh alias Vicky and Anr. Vs. Union of India and Ors., (2015) 9 SCC 502. In the above case, this Court elaborately considered the scope and purport of Section 364A including the historical background. After noticing the earlier cases, this Court laid down that section 364A has three distinct components. In Paragraph 25, following was laid down with regard to distinct components of Section 364A:-
"25. ................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 ........................"
31. We may also notice one more Three Judge Bench Judgment of this Court in Arvind Singh Vs. State of Maharashtra, (2020) SCC Online SC 400. In the above case, an eight year old son of Doctor Mukesh Ramanlal Chandak (PW1) was kidnapped -( 39 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 by the accused A1 and A2. Accused A1 was an employee of Dr. Chandak. It was held that A1 had grievance against Dr. Chandak. A2 who accompanied A1 when the boy was kidnapped and after the kidnapping of the boy it was found that boy was murdered and at the instance of A1, the dead body was recovered from a bridge constructed over a Rivulet. Trial court had sentenced both A1 and A2 to death for the offences punishable under Sections 364A read with 34 and 302 read with 34. The High Court had dismissed the appeal affirming the death sentence. On behalf of A2, one of the arguments raised before this Court was that although child was kidnapped for ransom but there was no intention to take the life of the child, therefore, offence under Section 364A is not made out. This Court noticed the ingredients of Section 364A, one of which was "threatening to cause death or hurt" in paragraphs 90, 91 and 92, the following was observed:-
"90. An argument was raised that the child was kidnapped for ransom but there was no intention to take life of the child, therefore, an offence under Section 364A is not made out. To appreciate the arguments, Section 364A of the IPC is reproduced as under:
"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 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."
91. Section 364A IPC has three ingredients relevant to the present appeals, one, the fact of kidnapping or abduction, second, threatening to cause death or hurt, and last, the conduct giving -( 40 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 rise to reasonable apprehension that such person may be put to death or hurt.
92. The kidnapping of an 8-year-old child was unequivocally for ransom. The kidnapping of a victim of such a tender age for ransom has inherent threat to cause death as that alone will force the relatives of such victim to pay ransom.
Since the act of kidnapping of a child for ransom has inherent threat to cause death, therefore, the accused have been rightly been convicted for an offence under Section 364A read with Section 34 IPC.
The threat will remain a mere threat, if the victim returns unhurt. In the present case, the victim has been done to death. The threat had become a reality. There is no reason to take different view that the view taken by learned Sessions Judge as well by the High Court."
32. We need to refer to observations made by Three Judge Bench in paragraph 92 where this Court observed that kidnapping of an eight year old victim for ransom has inherent threat to cause death as it alone will force the relatives of victim to pay ransom. The Court further held that since the act of kidnapping of a child has inherent threat to cause death, therefore, the accused have been rightly convicted for an offence under Section 364A read with Section 34 IPC. In the next sentence, the Court held that the threat will remain a mere threat, if the victim returns unhurt, "the victim has been done to death the threat has become a reality". The above observation made by Three Judge Bench has to be read in context of the facts of the case which was for consideration before this Court. No ratio has been laid down in paragraph 92 that when an eight year old child (or a child of a tender age) is kidnapped/abducted for ransom there is inherent threat to cause death and the second condition as noted above, i.e., threatens to cause death or hurt to such person, is not to be proved. The observations cannot be read to mean that in a case of kidnapping or abduction of an eight year old child (or child of a tender age), presumption in law shall arise that kidnapping or abduction has been done to cause hurt or death. Each case has to be decided on its own facts. In the foregoing paragraphs, we have noticed -( 41 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 that all the three distinct conditions enumerated in Section 364A have to be fulfilled before an accused is convicted of offence under Section 364A. Thus, the observations in paragraph 92 may not be read to obviate the establishment of second condition as noticed above for bringing home the offence under Section 364A."
39. Section 149 of Indian Penal Code runs as under :-
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
40. There are two essential elements covering the act under Section 149 of Indian Penal Code, which are as under:-
(i) The assembly should consist of at least five persons; and
(ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein.
41. For recording a conclusion that a person is guilty of any offence under Section 149 of IPC, it must be proved that such person is a member of an "unlawful assembly" consisting of not less than five persons irrespective of the fact whether the identity of each one of the five persons is proved or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the five enumerated objects specified under Section 141 of IPC.
42. The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are -( 42 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of overt acts committed by such individual members of the assembly is not permissible.
43. In Dani Singh v. State of Bihar [(2004) 13 SCC 203], the Hon'ble Apex Court has observed as under :-
"The emphasis in Section 149 IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section
141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of -( 43 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 common object' as appearing in Section 149 has to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly."
44. In Mahadev Sharma v. State of Bihar [(1966) 1 SCR 18], the Hon'ble Apex Court has discussed about applicability of Section 149 of IPC and observed as under :-
"The fallacy in the cases which hold that a charge under Section 147 is compulsory arises because they overlook that the ingredients of Section 143 are implied in Section 147 and the ingredients of Section 147 are implied when a charge under Section 149 is included. An examination of Section 141 shows that the common object which renders an assembly unlawful may involve the use of criminal force or show of criminal force, the commission of mischief or criminal trespass or other offence, or resistance to the execution of any law or of any legal process. Offenses under Sections 143 and 147 must always he present when the charge is laid for an offence like murder with the aid of Section 149, but the other two charges need not be framed -separately unless it is sought to secure a conviction under them. It is thus that Section 143 is not used when the charge is under Section 147 or Section 148, and Section 147 is not used when the charge is under Section 148.-( 44 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014
Section 147 may be dispensed with when the charge is under Section 149 read with an offence under the Indian Penal Code."
45. It is relevant to mention here that if all the necessary ingredients are present in a case when charges were framed under Section 149 of IPC, each member of unlawful assembly shall be held liable. The condition precedent is that the prosecution proves the existence of unlawful assembly with a common object, which is the offence.
46. In Kuldip Yadav vs. State of Bihar [(2011) 5 SCC 324], it is held that a clear finding regarding nature of the common object of the assembly must be given and the evidence discussed must show not only the common object, but also that the object was unlawful, before recording a conviction under Section 149 of IPC. Foremost essential ingredient of Section 141 of IPC must be established.
47. Section 201 of Indian Penal Code runs as under :-
"201. Causing disappearance of evidence of offence, or giving false information to screen offender.-- Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;
if a capital offence.--shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
if punishable with imprisonment for life.--and if the offence is punishable with [imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
if punishable with less than ten years' imprisonment.
--and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the -( 45 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both."
48. Dead body of Shubham @ Shailu was identified by Moharman Lal (PW/1) who is the grand father of the deceased i.e. Ex-P/6. Neeraj Sharma (PW/7) has also affirmed the statement of Moharman Lal and has also stated that the dead body of the deceased was found on 7.7.2006 at around 7.30 pm from the house of Shankar Singh where he identified the dead body. The dead body was decomposed but he was able to recognize the face.
49. J.N. Soni (PW/12) conducted the postmortem of the deceased and has opined that the deceased was strangulated thereby the deceased died. The death of deceased was homicidal. The deceased was also identified by his wearing. The death of deceased was not natural rather homicidal.
50. Prosecution witness Moharman Lal (PW/1) has specifically stated in his statement that on 23.06.2006 deceased Shailu @ Shubham S/o Niraj Sharma, aged around 10 years who was preparing for entrance exam of Sainik School went to learn the skating but he did not return back and report was lodged. This witness has also stated that on the same date at around 6 pm he received a call whereby ransom of Rs.5 Lacs was demanded. This witness has also stated that he was recently retired, therefore, he was having the aforesaid retiral benefit amount.
51. Bafatan (PW/2) has stated in her statement that she is tenant in the same building since last 10 years. Bajarangi, Ramdeen, Mahendra Singh, Mangilal are also the residents of that building. Earlier the accused/appellants Raghuveer and Shailendra Sharma were residing as tenant in that building and they again came back to reside in that building 15 days prior to the incident. This witness is the witness of last seen theory and Ameena, Sonu, Bajarangi are also the witnesses of last seen theory. She has stated that on the date of incident she had seen that one ten years boy was -( 46 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 coming along with the accused Shailendra and Raghuveer Savita. Ameena (PW/3) and Sonu (PW/4) have also affirmed the aforesaid statement. They have also stated that thereafter the deceased had not returned back. The seizure of cycle, sandle, skating shoes, key, one tasla, kanni, folding chair and cement bag was made as per the memorandum given by the accused-appellants Raghuveer and Shailendra. The seized articles were sent for scientific examination.
52. In the case of Ramreddy Rajeshkhanna Reddy {(2006) 10 SCC 172}, placing reliance on the judgment in the case of Anil Kumar Singh v. State of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. (2005) 7 SCC 603, Hon'ble Supreme Court has also considered the last seen theory and held that-
"The last seen theory, furthermore, comes into play, where the time-gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case Courts should look for some corroboration. [Held in the case of State of U.P. v. Satish (2005) 3 SCC 1141.]"
53. Hon'ble Apex Court in case of Hatti Singh vs. State of Haryana, reported in 2007(2) CCSC 802 (SC), relying on the earlier decision of Ramreddy Rajesh Khanna Reddy vs. State of A.P., reported in {(2006) 10 SCC 172}, held here as under:-
"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last-seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case -( 47 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 Courts should look for some corroboration."
54. Similarly, in another decision of State of U.P. v. Satish, reported in {(2005) 3 SCC 114}, again held as under :-
"22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together. It would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses P.Ws. 3 and 5."
55. In Bodhraj @ Bodha and others v. State of Jammu and Kashmir, 2002 (8) SCC 45 it has been held as follows:
"The last seen theory comes into play where the time- gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult to some cases, to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other person coming in between exists. in the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a -( 48 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 conclusion of guilt in those cases"
Whereby theory of last seen has been established and this fact remained unchanged.
56. Learned counsel for the appellants have submitted that the relevant and independent witnesses Vijay and Suryapratap were not examined and there was delay of lodging FIR. But the aforesaid arguments have no force as number of witnesses are not required to prove the case rather the statement/quality of evidence is required to be analysed. In the present case, initially missing report was lodged. Thereafter, on getting the dead body of the deceased the FIR was registered and further investigation was done. Therefore, it cannot be said that the FIR is delayed.
57. Learned counsel for the appellants have also submitted that there are lots of contradictions and omissions in the statements given by the prosecution witnesses. But again there is no force in the aforesaid arguments and the contradictions and omissions are not material and not fatal to the prosecution case..
58. Learned counsel for the appellants have also submitted that Sonu (PW/4) has not supported the prosecution case. Rather in his cross-examination he has specifically denied the existence of incident. Therefore, prosecution case is doubtful.
59. In Khujji @ Surendra Tiwari vs. State of Madhya Pradesh, AIR 1991 SC 1853, wherein it is held that if the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross- examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the present case, it is apparent from the record that cross-examination of Sonu got delayed due to delaying tactics of accused/appellants. Therefore, the trial Court has rightly considered the statement of Sonu.
60. Learned counsel for the appellants have also submitted that -( 49 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 the rope seized was not the same which was scientifically examined. But again this argument has no force as the doctor concerned has specifically opined that the deceased was murdered by strangulation done by the rope. It is also submitted by the learned counsel for the appellants that the prosecution case is that the dead body was recovered from the house locked from outside and its lock was broken by using force and the seized lock was pressure marked from one side. But the lock sent for FSL examination was different as in FSL report the scientist has submitted in its report that there was no any pressure mark on the seized lock. But again this argument has no force as the prosecution story is that the lock was broken. However, breaking of lock or opening of lock is not material as the dead body was recovered from inside of Bukhari of this house and the Bukhari was shut down with the help of wall of bricks and cement. Therefore, the trial Court has rightly held that the aforesaid act was not done with ulterior motive and reflects the criminal motive/modus operandi of the appellants.
61. As discussed above, Moharman Lal has specifically stated in his statement that as retiral dues he received Rs.4 Lacs and this fact was in the knowledge of accused/appellants and the demand of ransom on telephone was received by his daughter-in-law Manoj. It is true that the daughter-in-law Manoj has not been examined by the prosecution in this case. But there is a complete chain of circumstantial evidence in the present case and the dead body was recovered under the exceptional circumstances from the Bukhari and as per memorandum of accused/appellants articles were recovered/seized and as per scientific evidence reports, chain of circumstantial evidence is complete. Therefore, the trial Court has rightly observed that non-examining of witness Manoj (daughter- in-law) is non fatal to the prosecution case. The aforesaid act has been done by the accused/ appellants and the area from where abduction had taken place for ransom is a notified area under the -( 50 )- CRA No. 625/2009 CRA No. 713/2009 CRA No.1046/2014 provisions of MPDVPK Adhiniyam, 1981. Therefore, the trial Court has rightly held guilty accused/appellants under Section 11/13 of MPDVPK Act.
62. In the light of the foregoing discussion, we are of the considered opinion that the trial Court did not err in convicting and sentencing the appellants. Hence, the appeals filed by the appellant Raghuveer Savita and appellant Shailendra Sharma @ Sonu being Cri.Appeals No.625/2009 & 713/2009 are hereby dismissed and their conviction and sentence are affirmed.
63. As per report dated 9.8.2021 received from Superintendent, Central Jail, Gwalior, Appellant Raghuveer Savita and appellant Shailendra Sharma @ Sonu are in jail but they have been released on parole. Trial Court is directed to take steps to ensure the custody of the appellant to serve out their remaining sentence.
64. In the present case, on perusal of record it is apparent that the trial Court has rightly acquitted the accused Shankar Singh Gurjar, Surendra Singh and Kampoter Singh Gurjar as there is no sufficient evidence on record rather against these accused persons the prosecution evidence is lacking. Therefore, the appeal (Criminal Appeal No.1046/2014) filed by the State has no merits. Hence, it is hereby rejected.
With a copy of this judgment record of the trial Court be sent back immediately.
(G.S.Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
van
SMT VANDANA
VERMA
2021.10.05 19:14:07
-07'00'