Andhra Pradesh High Court - Amravati
Siba Shanker Das, Orissa State., vs State Of Ap., Rep. Pp., on 29 June, 2021
Author: C.Praveen Kumar
Bench: C. Praveen Kumar
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN
Criminal Appeal No. 855 of 2014
JUDGMENT:(Per Hon'ble Sri Justice C.Praveen Kumar) With the consent, Ms. Ammaji Nettem, Legal-Aid Counsel, appearing for the Appellant and Sri. M. Dushyanth Reddy, learned Additional Public Prosecutor, this Criminal Appeal is heard through Blue Jeans video conferencing APP.
1) Accused No. 4 in Sessions Case No. 25 of 2014 on the file of X Additional and Sessions Judge, Visakhapatnam at Anakapalle, is the Appellant herein.
2) Originally, a charge-sheet came to be filed against A-1 to A-4, but, pending trial, the case against A-1 to A-3 was split up and separated, as such, charges were framed against A-4 alone for the offences punishable under Sections 364-A, 342 and 386 of Indian Penal Code, 1860 ['I.P.C.']. By its Judgment, dated 18.07.2014, the learned Sessions Judge, convicted the appellant [A4] herein and sentenced him to suffer imprisonment for life and to pay fine of Rs.100/- for the offence punishable under Section 364-A I.P.C. He was further directed to undergo rigorous imprisonment for one year and to pay fine of Rs.100/- for the offence punishable under Section 342 I.P.C. He was also directed to under rigorous imprisonment for seven years and to pay fine of Rs.100/- in default directed to undergo simple 2 imprisonment for a period of three months for the offence punishable under Section 386 I.P.C. All the substantive sentences were directed to run concurrently. The record also shows that the appellant was arrested on 25.06.2013 and since then he is in jail.
3) The substance of the charge against the accused is that, on 12.06.2013 the appellant (A4) along with three others kidnapped PW3 (Siyadri Santosh Rao), aged about 18 years, from RTC Complex, Chodavaram, and confined him by putting under fear of death till he was rescued by the police on a later date. The charge also discloses demand of ransom of Rs.10,00,000/- from PW2 for release of PW3.
4) The facts, as culled out, from the evidence of prosecution witnesses are as under:
i) PW1 is the elder brother and PW2 is the mother of PW3.
After completing his 10th class, in the year 2013, PW3 appeared for polytechnic entrance examination and got a seat in a polytechnic college at Paderu. In the month of June, 2013, he went to Chodavaram along with his friend (PW4) to download his allotment letter. After getting down from the bus, PW4 went to his college, while PW3 sat by the side of the bus stop at Chodavaram, as he was not feeling well. At that time, an unknown person approached him and enquired about his visit to Chodavaram. The said person informed PW3 that he will provide a good job to 3 him. Believing his version, PW3 accompanied him to Anakapalle Railway Station and then boarded a train. It is the case of PW3 that as he was weak, he slept in the train without taking any food. Thereafter, he was taken to a room where both his hands were tied to the back side of the chair and four persons present in the said room were guarding him. Among the said four persons, the appellant was one amongst them.
ii) It is said that A4 removed the rope tied to the hands of PW3 and asked him to inform his parents about his kidnap. It is also said that the persons present in the room were armed with knives and sticks and they also kicked PW3 on chest when he failed to meet or answer to their demands. Later a purse was taken out from the pant pocket of PW3, in which they noticed some telephone numbers. A telephone call was made to the mother of PW3, and he was asked to speak to her on phone. PW3 claims to have informed his mother [PW2] about he being wrongfully confined and also informed his mother that he is not aware about the place where he is detained. At that point of time, one of the alleged kidnapper took the phone, went outside the room and talked with PW2. The other persons present in the room tied PW3 with a rope and beat him. Later on, out of four persons, two persons went outside while other two persons remained in the room keeping a watch over 4 him. It is the case of PW3 that the two persons present in the room removed his clothes and burnt him with cigarette buds, causing burn injuries on his body, apart from placing a knife on his chest with a threat to kill him. Later on, the other two persons who went out came inside and informed that PW2 agreed to pay the amount as demanded by them and accordingly asked PW3 to cooperate with them. It is to be noted here that PW3 does not specifically speak about the role of the appellant.
iii) It is said that the alleged kidnappers applied ash over the face of PW3 to cover his identity and detained him in the room for two days. On the third day, PW3 was asked to be ready, as his mother agreed to pay the amount and accordingly the appellant and the kidnappers covering the eyes of PW3, took him in a car to a distance. After reaching some distance, they got down from the car, where PW3 noticed some sheds and an old dilapidated temple. At that stage, a fifth person came there. It is said that out of five persons present there, three went on a motorcycle, while the other two kidnappers inclusive of A4 remained with PW3. Later on, the three persons who left earlier, came back, and one person dropped while other two asked PW3 to sit on their motorcycle. After covering some distance on the motorcycle, the two kidnappers left PW3 at an 5 unknown place and went away being afraid of the situation.
iv) It is the case of PW3 that as he was naked, he stayed himself under a shed for some time. At which point of time, one person came there. PW3 is said to have asked him to give his cell phone to talk with his uncle, by name, D. Sanyasi Rao [PW5]. PW3 informed his uncle [PW5] about the incident, who advised him to abscond from the place immediately. It is the case of PW3 that immediately thereafter he started running towards forest area and after covering some distance, noticed a hostel building and two students coming out of the hostel. PW3 requested them to give their cell phone to talk with his uncle. Accordingly, they gave their cell phone and PW3 claims to have talked with his uncle [PW5]. As per the advice of PW5, the two students took PW3 to their hostel, provided clothes and some water and, thereafter, took him to Kurda Road Police Station. The students informed the police that PW3 was kidnapped by some persons.
v) At this stage, it is also to be noted that a report about the incident was lodged on 16.06.2013 by PW1 alleging missing of his younger brother, which lead to registration of a case in Crime No. 82 of 2013 of Chodavaram Police Station, under the head "boy missing". It is also the evidence of other witnesses that on 16.06.2013, the 6 kidnappers informed PW2 on phone about the demand of Rs.10,00,000/- for release of PW3 and the amount to be paid in Visakhapatnam at 4.00 P.M.
vi) It is the version of PW5 that pursuant to information given by students, he along with the local Police went to Kurda road Police Station and noticed PW3. There, they searched for the kidnappers but in vain. On the third day of the search, while they were at Railway Station in Bhuvenswar, PW3 noticed A4 at the said place. Accordingly, the Inspector of Police [PW7], apprehended A-4. It is the version of PW7 that, PW3 identified one more person, by name, Mirja Kunu Baig @ Kunal [A3], who was also apprehended. Both the accused made confessional statement in the presence of independent mediators, which was reduced in to writing. Pursuant to the confession made, the raid party went to Nayahut Village, and observed the house where PW3 was detained. The police examined one Razak Mirja and recorded his statement. A bike bearing No. OR 02 BP 2282 and two cell phones were recovered from A3 and A4. PW7 prepared a rough sketch of scene, which is placed on record as Ex.P5, apart from seizing M.O.1 to M.O.3 i.e., a motorcycle, and two cell phones. He got arrested the other accused and after completing the investigation, filed a charge-sheet which was taken on file as P.R.C. No. 2 of 2014 [after split]. 7
vii) On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Sessions, the matter was committed to the Sessions Court under Section 209 Cr.P.C. Basing on the material available on record, charges as referred to above came to be framed, read over and explained to the accused, to which, he pleaded not guilty and claimed to be tried.
viii) In support of its case, the prosecution examined PW1 to PW7 witnesses and got marked Ex.P1 to Ex.P5, beside marking MOs. 1 to 3. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied but however no oral or documentary evidence adduced.
ix) Relying upon the evidence of PW3, which gets corroboration from the evidence of PW1, PW2 and PW5, the learned Sessions Judge, convicted the accused. Challenging the same, the present appeal came to be filed through legal-aid.
5) Ms. Ammaji Nettem, learned Legal-Aid counsel appearing for the appellant would contend that, there is absolutely no legal evidence available on record to connect the accused with the crime. According to her, there is an abnormal delay in giving the 8 report and no explanation is forthcoming for the delay in lodging the report. It is further urged that there is absolutely no evidence on record to show any telephone call being made by the alleged kidnappers either to PW2 or to any of the prosecution witnesses, since, no call data has been placed on record. In other words, her argument appears to be that, when the cell phones of A3 and A4 were seized by the police, they ought to have made every effort to connect the accused with the crime by collecting call data from the said phones. She further submits that in the absence of any test identification parade, identification of A4 by PW3 in the court has no value. According to her, the case of PW3 gets falsified in the absence of any medical certificate showing the injuries on the body of PW3, when the case of the prosecution is to the affect that he was beaten by the alleged kidnappers and burnt with cigarette buds. In the absence of the same, it is pleaded that the entire case has to be viewed with suspicion. It is further alleged that, even an entire reading of the evidence of PW3, nowhere indicate that PW3 was forcibly taken by the alleged kidnappers. On the other hand, it shows that PW3 followed the person who promised to provide him an employment. Her argument appears to be that when PW3 on his own followed the alleged abductors; arrest of the accused not being from a place where PW3 was detained and in the absence of any evidence as to then place where he was detained and more particularly when the prosecution failed to 9 examine the mediators, the ingredients constituting the offences are not made out.
6) On the other hand, the learned Additional Public Prosecutor opposed the same contending that when PW3 was with the appellant and others for a period of three days, there cannot be any difficulty in identifying the accused in the court, since, it is not the case of the accused or the prosecution that the accused were covering their faces with mask. According to him, not holding of test identification parade is not fatal to the prosecution case and the identification of the accused for the first time in the court can be accepted in the fact situation. He further submits that the evidence of PW3 can be relied upon to base a conviction in the absence of any motive for him to foist a false case. According to him, the motive set up by the accused is inconsistent and the suggestion given to the witnesses vary from witness to witness. According to him, if the evidence of PW3 is believed, not collecting the call data may not matter much. Learned Additional Public Prosecutor further submits that the reason for PW3 foisting a false case, namely, that he did not pay his fee of Rs.600/- for the polytechnic course and to avoid harassment, he created a story implicating all the four accused appears to be far fetched and the same cannot be accepted. Hence, pleads that conviction and sentence imposed by the trial court warrants no interference.
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7) The point that arises for consideration is, whether the prosecution was able to bring home the guilty of the accused beyond doubt for the offences punishable under Section 364-A, 342 and 386 IPC?
8) Before proceeding further, it would be appropriate to refer to Section 364-A I.P.C., which is 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 2 [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.]"
9) To constitute an offence under Section 364-A I.P.C. it must be shown that, kidnap or abduction must have been done to extract ransom. The word 'ransom' is not defined in the law.
As observed by the Hon'ble Apex Court in Suman Sood alias Kamal Jeet Kaur Vs. State of Rajasthan1, the term ransom is a sum of money to be demanded to be paid for releasing a captive, person or detenu. Kidnapped for ransom is an offence of unlawful seizing a person and then confining the person, usually in a secret place, while attempting to extort ransom. It is also held that in addition to the abductor a person who acts as a go between to collect the ransom is generally considered guilty of the crime.
1 (2007) 5 SCC 634 11
10) The question now would be, whether the trial court was right in convicting the appellant (A4) for the offence punishable under Section 364A I.P.C., simpliciter apart from other two offences?
11) As urged by the learned Additional Public Prosecutor, the entire case now rests on the evidence of PW3, who was aged about 17 years at the time of the offence. According to PW3, in the month of June 2013, he went to Chodavaram along with PW4 to download the letter of allotment. While PW4 left to his college, he was sitting by the side of bus stop at Chodavaram as he was not feeling well. At that time, an unknown person approached him and enquired the purpose of his visit to Chodavaram. Believing the promise made by the said person of providing a job, PW3 accompanied him to Anakapalle Railway Station and boarded a train. He slept in the train as he was weak and later on he was taken to a room where he was made to sit on a chair and both his hands were tied to the back of the chair. At that point of time, four persons were present in the said room and the appellant was one amongst them.
(ii) According to PW3, the accused untied the rope, but, however, stood behind him with knifes and sticks in their hands. They asked him to inform his parents over phone about the kidnap for money and also asked him to inform his parents to arrange the ransom. It is said that whenever PW3 failed to answer certain questions, he was beaten. It is the version of 12 PW3 that the persons present in the room, picked up his purse from his pocket wherein some telephone numbers were available and after verifying the mobile number of his mother, a phone call was made and PW3 was asked to inform his mother over phone that he was wrongfully restrained in a room. When his mother asked him the place where he was kept, he pleaded ignorance about the said place. Thereafter, the kidnappers took the telephone number, went outside the room and talked with the mother of PW3 [who is examined as PW2].
(iii) It is the case of PW3 that two of the kidnappers went away while the other two remained in the room and started ill- treating him. Thereafter, the other two persons came inside the room and informed PW2 agreed to give the amount as demanded by them and asked PW3 to cooperate with them and inform over phone to arrange the amount at an early time. Due to fear, he agreed to the request made. Thereafter, i.e., after three days, they took PW3 on a motorcycle by blindfolding him to a place where there were some sheds and a dilapidated temple, where they removed the cloth tied to his eyes. At that point of time, a fifth person joined them. Three of them went out on a motorcycle, whereas, the two kidnappers including the appellant herein stayed with him and watched him. Later on, the said three persons came back and one among them stayed back while two persons went away. Later the accused took PW3 on a motorcycle to some distance and due to fear, left PW3. As it was 13 raining, he took shelter in a shed and at that point of time, a stranger came there. PW3 requested him to give his cell phone for making a call to his uncle [PW5]. PW3 talked with his uncle, who advised him to escape. Thereafter, he started running towards the forest area. He noticed a hostel building and two students coming out of the hostel. He again asked them to give their cell phone to talk with his uncle. Later on, his uncle also talked to the students, who on the advice of PW5 took PW3 to the Kurda Road Police Station, from where information was given about his presence in the Police Station.
12) From the evidence-in-chief of PW3, it is very clear that, he on his own followed a stranger, who initially took him to Anakapalle Railway Station, and then went to a different place in a train. Thereafter, he was confined in a room. His evidence is silent as to the time he travelled in the train and also about getting down at a different railway station before reaching the room where he was said to have been detained for three days. Though he deposed that four persons were present in the room but his evidence is silent as to which of the accused informed him about his kidnap for ransom. His evidence also does not disclose that the demand for ransom from his mother was made in his presence. On the other hand, it shows that the two persons who went out of the room, came back and informed that the mother of PW3 agreed to pay Rs.10,00,000/- as ransom. From the above, two things are clear. First, it was not the 14 appellant who demanded ransom either from PW3 or from the mother of PW3. Though, PW3 in evidence-in-chief tried to say that the kidnappers asked him to inform his parents over phone about the act of kidnap and for arranging money, but, it is silent as to who among the four demanded PW3 to do so. It is not the version of PW3 that all four of them made such demand.
13) It is also to be noted here that, after dropping PW3 at a place where there was a shed one person came towards PW3 while all others left. It is also strange to believe that the said person would have offered a cell phone to PW3 to talk with his uncle. In our view, the person present along with PW3 would not have given his cell phone, nor would have allowed him to talk with his uncle and then allow him to escape, if really it was for ransom, more so when the payment was to be made at 4.00 P.M. in Visakhapatnam.
14) At this stage, it would be appropriate to refer to the evidence of PW2 [the mother of PW3] with whom the kidnappers had a telephonic conversation with regard to ransom. In her evidence, she deposed that, on 16.06.2013 at about 9.00 A.M., while she was in the train, received a call where the kidnappers allowed her son to talk with her, but he did not give any details about the place where he was detained by the kidnappers. It is also her version that while talking with her son, the kidnappers took the phone and talked with her and agreed to hand over her son at Visakhapatnam at 4.00 P.M. It is her version that, she 15 continued to call the same number, but there was no response. However, she reached Visakhapatnam by 4.00 P.M., on 17.06.2013.
15) It is to be noted here that, when PW2 talked with her son [PW3] on 16.06.2013 at 9.00 A.M., her son did not inform her about the ransom alleged to have been demanded. Though, PW3 in his evidence deposed about the kidnappers informing him about the demand for ransom and asking him to make such demand from his mother, but the evidence of PW2 is silent on this aspect. In-fact, her evidence is to the effect that it was the kidnappers who demanded money on 16.06.2013, which as per the evidence of PW3 was not before him. Strangely, PW2 did not give telephone numbers of the alleged kidnapers, though she was in continuous touch with them. Her evidence is also silent as to the telephone numbers from where she received the calls. The evidence of the investigation officer is also silent with regard to collecting information regarding the details of the numbers from where PW2 received the calls, and the call data so as to trace out the culprits. Though, PW2 deposed that she received a ransom call from the alleged kidnappers, but the investigation officer failed to collect the call data to find out the truth in her statement. Even believing the evidence of PW2 and PW3 which show there were some calls but there is no evidence on record to show that it was A4 who made such call or that A4 was aware that the two persons who went out, made calls demanding 16 ransom. In-fact, the evidence of PW3 is to the effect that, he was asked to demand money from his mother on phone, but the same is not supported by the evidence of PW2.
16) Further, to prove an offence under Section 364A I.P.C. it is also necessary to establish that along with kidnapping, the kidnapper also should threatened to cause death of the victim. A reading of the said provision would show that for proving an offence under Section 364 A IPC, fulfilment of the following conditions are also essential:
"1) kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction and (2) threatening to cause death or hurt to such person or by this conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or (3) causes hurt or death to such person in order to compel the Government or any foreign State or international inter-government organization or any other person to do or abstain from doing any act or to pay a ransom."
17) As held by the Apex Court in Shaik Ahmed v. State of Telangana [judgment pronounced on 28.06.2021], after establishing the first condition, one more condition has to be fulfilled since after the first condition, the word used is "and". Therefore, in addition to the first condition, the other condition 2 or 3 has to be proved failing which the conviction under Section 364A IPC cannot be sustained.
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18) From the evidence adduced by the prosecution, which we have referred to earlier, the version of PW.3 is that he was threatened and his body was burnt with cigarette buds, but not even a single injury was found on the injured/victim. In fact, PW3 was not even sent for medical examination. There is absolutely no evidence on record to show that he was beaten or burnt with cigarette buds all over his body. Hence, the version of PW.3 that some of the alleged kidnappers while detaining him in a room threatened him, beat and burnt him with cigarette buds cannot be accepted, at its face value in the absence of any corroboration from other source i.e., medical evidence. Therefore, on this score also the ingredient constituting the offence under Section 364A IPC is not made out.
19) Hence, we are of the view that prosecution failed to establish the guilt of the accused for an offence punishable under Section 364-A I.P.C. However, fact remains that some unknown person by deceitful means took PW3 to a different place and confined him. Later on, for reasons best known, let him loose.
20) For the aforesaid reasons, ingredients constituting offences punishable under Section 364A and 386 I.P.C. are made out.
21) The next question would be whether an offence under Section 365 I.P.C., is made out?
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22) Section 365 I.P.C., reads as under:
''Section 365 I.P.C. - 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''.
23) A perusal of the evidence of PW3 coupled with the evidence of PW4 show that, both of them went to Chodavaram and from there an unknown person is said to have taken away PW3 promising to provide him with some employment. The fact that he was abducted also gets corroborated from the evidence of PW1, who lodged the report at the earliest point of time, setting the law into motion. PW3 in his evidence also speaks about being confined in a room for three days and thereafter due to fear was let out after taking him to a different place. Hence, we are of the view that the offence alleged squarely falls within the ambit and purview of Section 365 I.P.C. Hence, while maintaining the conviction of accused for the offence punishable under Section 342 I.P.C., which is for wrongful confinement, the conviction of the accused under Section 364A is altered to Section 365 I.P.C.
24) Accordingly, the Criminal Appeal is partly allowed. The conviction and sentence recorded against the appellant/accused No.4 in S.C.No.25 of 2014 on the file of the X Additional and Sessions Judge, Visakhapatnam at Anakapalle, for an offence 19 punishable under Section 364-A IPC is altered to one under Section 365 I.P.C. For the altered conviction, the appellant (A4) is sentenced to rigorous imprisonment for a period of seven years. The period of remand undergone by him during investigation, trial and after conviction shall be given set off, under Section 428 Cr.P.C. Consequently, the appellant (A4) shall be set at liberty forthwith on completion of seven years rigorous imprisonment, if not required in connection with any other case. The substantive sentence of rigorous imprisonment imposed under both the counts shall run concurrently.
25) Consequently, miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR _______________________________ JUSTICE B. KRISHNA MOHAN Date: 29/06/2021 S.M...
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN Criminal Appeal No. 855 of 2014 (Per Hon'ble Sri Justice C.Praveen Kumar) Date: 29/06/2021 S.M. 21
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