Madhya Pradesh High Court
Durgashankar Alias Durgalal And Ors. vs State Of Madhya Pradesh on 7 March, 2006
Equivalent citations: 2006 CRI. L. J. 2494, 2006 (3) AJHAR (NOC) 920 (MP), 2006 (5) ABR (NOC) 805 (MP), 2006 CRILR(SC&MP) 266
JUDGMENT S.K. Kulshrestha, J.
1. The above appellants have assailed the judgment dated 7th September, 2001 of the learned Additional Sessions Judge, Agar (District Shajapur), in Session Trial No. 85/2000 whereby while acquitting four co-accused, the appellant Nos. l to 3, namely; Durgashankar alias Durgalal, Bajranglal and Hemraj, have been convicted under Section 364A/34 of the Indian Penal Code and each has been sentenced to imprisonment for life and fine of Rs. 1,000/-; and under Section 365/34 sentenced to rigorous imprisonment for five years and the appellant Nos. 3 and 4, namely; Premnarayan and Mangilal, have each been convicted under Section 212, on three counts, and sentenced to rigorous imprisonment for four years, under each count. The sentences have, however, been directed to run concurrently. The judgment also directs the accused to suffer rigorous imprisonment for ten months in default of payment of fine of Rs. 1000/-.
2. The appellants were prosecuted along with Radheshyarn, Bherulal, Balchand and Ghanshyam s/o Pannalal Patidar, on the ground that they had kidnapped Mukesh (PW-3) son of Vishnu Prasad (PW-5) while he was returning from School, on 22-2-2000, at about 12.00 noon, with a view to demand ransom from his parents. In pursuance of the said kidnapping ransom of Rs. 30,000/- was demanded for the release of the hostage, but the amount was not paid as none was found at the place of rendezvous. The matter was reported to the Police and the investigation commenced. Assistant Sub-Inspector, S. C. Verma (PW-9), proceeded to the spot and prepared the spot map. He examined the witnesses and on learning that the witnesses had learnt that accused persons had hatched a conspiracy, he instituted search for the accused. He arrested accused Radheshyam, Bherulal and Balchand on 26-2-2000 and thereafter handed over investigation to Station House Officer, R. K. Rai (PW-8). On 26-2-2000, accused-Hemraj appeared before the said Officer with the kidnapped child and the child was recovered, vide recovery memorandum Ex. P/2. The child was handed over to his father in the presence of the witnesses. Accused persons were arrested, the motorcycle allegedly used in the commission of kidnapping was seized and after indicating that accused Ghanshyam had absconded, charge-sheet was filed against the appellants and the acquitted co-accused However, upon arrest of Ghanshyam supplementary charge-sheet was filed.
3. On being charged for the offences Under Section 364A/34, 365, in the alternative 365/34 and Section 120B, the accused Durgashankar, Bajranglal and Hemraj pleaded not guilty. Accused-Bherulal Balchand, Radheshyam and Ghanshyam denied having committed offence Under Section 120B and the remaining accused persons namely; Premnarayan and Mangilal (appellants No. 4 and 5 herein), abjured their guilt when charged Under Section 212 on three counts. The defence of the accused was that in village Shripatpura, there were political factions and on account of the enmity, they have been falsely implicated. The trial Court, however, while acquitting the co-accused facing charge Under Section 120B of the IPC, convicted the appellant Nos. 1 to 3 under Sections 364A and 365 and appellant Nos. 4 and 5 under Section 212 and sentenced them to the terms, as hereinabove stated. It is against this conviction and sentence that the appellants have approached this Court.
4. Learned counsel for the appellants has submitted that the learned Addl. Sessions Judge has not properly appreciated the requirement of the offence Under Section 364A of the IPC and has, mechanically on the ipse dixit of the witness Vishnu Prasad (PW-5) that Durgashankar has demanded a sum of Rs. 30,000/- as ransom, convicted appellant Nos. l to 3, namely; Durgashankar, Bajranglal and Hemraj for offence Under Section 364A of the IPC. Their conviction under the said provision is, therefore, not sustainable. Learned counsel has further submitted that the mere demand of a sum does not attract the liability laid down Under Section 364A unless it is shown that it creates an apprehension that failure to meet the demand would result in hurt to the hostage or his death. Learned counsel submits that since there is no evidence to suggest that failure would have ensued such a consequence, the provisions of Section 364A were not attracted. Learned counsel has further submitted that there is nothing to suggest that the child was kidnapped and for that reason the conviction Under Section 365 of the IPC is also improper. As regards the conviction of appellant Nos. 4 and 5, namely; Premnarayan and Mangilal, Under Section 212 of IPC is concerned, the submission of the learned Counsel is that apparently there is no evidence to suggest that Premnarayan and Mangilal had any knowledge that appellant Nos. l to 3 were offenders or fugitive from justice and, therefore, it cannot be said that they harboured the three appellants with the knowledge that they had committed some offence. The further contention of the learned Counsel is that the providing of shelter should be with intent to screen them from the consequences of the offence and since there is nothing to suggest that they were harboured to screen them from penal consequences of their commissions, they could not have been convicted Under Section 212 of the IPC.
5. We have heard the learned Counsel for the parties and perused the record.
6. The prosecution, in order to prove its case, has examined nine witnesses'. Devbai (PW-1) has deposed that she saw the accused taking Mukesh (PW-3) on their motorcycle. Kanhaiyalal (PW-2) has not supported the prosecution case. Mukesh (PW-3) is the child who was kidnapped and who has given a vivid description of the incident. Ramvilas Patidar (PW-4) who was examined to give evidence with regard to the conspiracy in which the acquitted accused were involved, has not supported the prosecution and was declared hostile. Vishnu Prasad (PW-5) is the father of the kidnapped boy who has given evidence to the effect that accused Durgashankar has suggested that he should pay Rs. 30,000/- to secure release of his child. Shyam Manohar (PW-6) has not supported the prosecution. He was, even otherwise, a formal witness relating to the arrest of Durgashankar and seizure of motorcycle. Guddibai (PW-7) is the mother of the kidnapped child and she has deposed that her husband had informed her that accused-Durgashankar had made a demand of Rs. 30,000/-. R. K. Rai (PW-8) and S. C. Verma (PW-9) are the Police Officers who conducted the investigation.
7. In order to properly analyse the case of the prosecution, the case will have to be divided into three compartments : (1) as regards Section 364A of the IPC; (2) Section 365 of the IPC, and (3) Section 212 of the IPC. Since the evidence is overlapping, it would be advantageous to briefly discuss the evidence of the prosecution at this stage.
8. Mukesh (PW-3) was in the custody of the kidnappers. Mukesh is a child aged 12 years. He has deposed that an year prior to the date of his examination, after school hours, when he was returning on foot with Satyanarayan to Shripatpura, accused Durgashankar, Hemraj and Bajranglal met him. They were on a motorcycle. The motorcycle was being driven by Durgashankar, while other two accused were on the pillion. They stopped him and told him that since his brother was having fever, they were going to buy medicine and asked him to mount their motorcycle. He has deposed that he did not agree but then Durgashankar Sharma caught hold of his hand and made him sit on the front tank of the motorcycle. On way Bherulal and Ghanshyam of their village asked Durgashankar to stop the motorcycle but he proceeded without paying heed. Ghanshyam then paid some amount to Durgashankar and Bherulal told him not to bring back and he was taken to Himmatgarh Dam. He was told that there was puncture in the motorcycle, Hemraj was left behind and Durgashankar took the motorcycle away. After Durgashankar Sharma left, Hemraj and Bajranglal started taking him to the places near the Dam.
9. Afterwards they had taken him to the house of Premnarayan where he lived with Durgashankar, Premnarayan, Hemraj and Bajrang. When he inquired from these persons as to where they were 'taking him, the accused had stated that they will take money from his father and if his father does not give him money, they will not leave him. He was also kept in the house of accused Mangilal. He was also kept in a School where Hemraj had lived with him. Thereafter he was again shifted to the house of Mangilal. Thereafter accused-Durgashankar Sharma had informed Hemraj that amount has been received, and that he should leave him (witness) at the Police Station.
10. In his cross-examination he has stated that he was, for the first time, stating in his deposition that the accused persons had said that they would throw him in the Dam and that he had not even told his father so after he had been handed over by the Police to him and no such thing was said. He has also admitted that they had not permitted him to shout or cry. He has admitted that both Premnarayan and Mangilal had their family in which there were young children also.
11. If the evidence of Mukesh (PW3) is examined in the context of the requirement of Section 212, it clearly transpires that nothing has been brought on record to show that appellant No. 4 Premnarayan s/o Puralal and appellant No. 5 Mangilal had any knowledge that the other appellants namely; Durgashankar, Bajranglal and Hemraj were offenders or fugitive from justice. Section 212 of the IPC reads as under:
212. Harbouring offender -- Whenever an offence has been committed, whoever harbours or conceals a person who he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment:
if a capital offence -- shall, if the offence is punishable with death, be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine:
if punishment with imprisonment with life or with imprisonment -- 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:
and if the offence is punishable with imprisonment which may extend to one year, and not to ten years, shaft be punished with imprisonment of the description provided for the offence for a term which may extend to one fourth part of the longest term of imprisonment provided for the offence, or with fine, or with both.
12. From the above definition it is manifest that it is only harbouring and concealing as person who the person harbouring thinks or has reason to believe to be the offender that the provision is attracted subject to the condition that such harbouring and concealment should be with the intention of screening him from legal punishment. There is no evidence in the present case to point to the two constituents aforesaid essential to the commission of the offence thereunder. Under these circumstances, even if the prosecution evidence is believed and taken at its face value, the commission of the offence Under Section 212 of the IPC by the 4th and 5th appellant is not made out. Their conviction and the sentence awarded to them by the trial Court cannot be sustained. We are also constrained to observe that since the alleged concealment was as regards an offence punishable with imprisonment for life, the maximum term which could have been awarded by the Court could be three years. Apparently, the trial Court has overlooked the provision in awarding sentence of four years on each count to the appellant Nos. 4 and 5. Be that as it may, since the commission of offence by these persons have not been made out, they are acquitted of the charge Under Section 212 of IPC on all counts and the sentence passed against them thereunder is set aside.
13. For the purpose of assessing whether the case of the appellant Nos. 1 to 3 would fall Under Section 364A of the IPC, the demand of ransom should be in the context of the conduct that gives rise to a reasonable apprehension that the hostage may be caused hurt or killed if the demand is not fulfilled. The evidence adduced by the prosecution with regard to the demand is through the father of the kidnapped child namely; Vishnu Prasad (PW 5). Vishnu Prasad PW5) has deposed that when his child did not return, he went out in search when he met Durgashankar Sharma (appellant No. 1). Durgashankar volunteered to tell him that miscreants had kidnapped his child and taken him to Jhalawad and if he pays Rs. 30,000/-, he would be released. Even though Vishnu Prasad (PW 5), did not trust Durgashankar, he took persons of his confidence to the place but did not find anyone there. Guddibai (PW7), mother of the child Mukesh and wife of Vishnu Prasad, has also stated that Vishnu Prasad had told her that Durgashankar had asked for a sum of Rs. 30,000/-. The question which has been raised by the learned Counsel for the appellant is as to whether there is any evidence to suggest that Durgashankar was acting as an agent for the other two accused namely; Bajranglal or Hemraj. Though a suggestion has been given in the evidence of Mukesh (PW 3) that the accused had disclosed that only when the money is paid to them, they will release him otherwise not, we find that apart from saying that Rs. 30,000/- is needed, nothing has been said to suggest that Durgashankar had the authority on behalf of the other two accused to settle the amount with the father of the kidnapped person. Under these circumstances, there is no material before us to infer that the action of Durgashankar had the requisite consent or sanction of Bajranglal or Jemraj. On the basis of the testimony of Vishnu Prasad (PW 5), therefore, all that can be said is that Durgashankar demanded a sum of Rs. 30,000/- on the pretext that his son would be released if the money changed hands, or but there is no evidence that he was acting as an agent of the other two appellants or that he was acting with their consent. At the most it can be treated to be an individual act of Durgashankar. Under or these circumstances, appellant Nos. 2-Bajranglal and No. 3 Hemraj cannot be convicted Under Section 364A of the IPC.
14. The crucial question that confronts us now is whether Durgashankar can be convicted Under Section 364A of the IPC. For proper appreciation of the controversy, it is necessary to refer to Section 364A, which reads as under:
364-A. 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.
15. From a bare reading of this Section, it becomes luculent that it is not the demand of ransom alone, but it is when the conduct of the person who demands ransom that gives rise to a reasonable apprehension that the person for whose release the demand has been made that on failure such person may be put to death or caused hurt, that the provision is attracted. In the present case, there is not even a whisper in the testimony of Vishnu Prasad (PW 5) that Durgashankar ever intimidated that if the demand of Rs. 30,000/- was not met, harm would be caused to the kidnapped child. We are, therefore, of the considered view that the offending act of Durgashankar also does not constitute an offence punishable Under Section 364A of the IPC. Under these circumstances, all the three appellants namely; Durgashankar (No. 1), Bajranglal (No. 2) and Hemraj (No. 3) are acquitted of the offence Under Section 364A and the sentence of life imprisonment awarded thereunder.
16. The surviving question is about the conviction of these three appellants Under Section 365 of the IPC. In view of the evidence of Mukesh (PW 3), the person kidnapped, the evidence of Vishnu Prasad (PW 5), his father, and the evidence of Guddibai (PW7) as also of the Police Officer R. K. Rai (PW 8) before whom the appellant No. 3 Hemraj had surrendered and produced the boy, there is no doubt that the boy was kidnapped by these three persons. Mukesh (PW 3) has categorically alleged that Durgashankar, Bajranglal and Hemraj had forcibly taken him on motorcycle and kept him confined. Under these circumstances, their conviction Under Section 365 and sentence of five years RI to each of them, does not suffer from any infirmity or impropriety.
17. In the result, the appeal partly succeeds. While the appellant Nos. 1 and 3 are acquitted of offence Under Section 364A and the sentence awarded thereunder, their conviction Under Section 365 of the IPC and the sentence of RI for five years awarded to each of them is maintained. The conviction of appellant No. 4 - Premnarayan and No. 5 - Mangilal, Under Section 212(on three counts) and the sentence of RI for four years awarded on each count is set aside and they are acquitted. Premnarayan and Mangilal are on bail. Their bail bonds shall stand discharged.