Kallu And Others vs State Of M.P

Vivek Agarwal, J.

This Criminal appeal has been filed by the appellants being aggrieved by judgment dated 10th February, 2004, passed by the Court of IIIrd Additional

Sessions Judge, Gwalior, in S.T.No.115 of 2003.

(1) As per the prosecution story, on 14.05.2000 at about 9 AM accused persons had formed an unlawful assembly at Manpura Forest under Police

Station Mohna, district Gwalior and in furtherance of common object, they abducted complainants Dwarika Prasad, Rajendra Singh, Balram,

Ramadhar, Lachhi, Sonpal and Siyaram. They were armed with mouser and 12 bore guns and their intention was to abduct said persons for ransom

and if ransom is not paid, then to cause death of such abducted persons.

(2) Complainant party consisting of Rajendra Singh (PW-1), Balram (PW-2), Dwarika Prasad (PW-3), Ramadhar (PW-4), Lachhi (PW-5) Siyaram

(PW-7) and Sonpal (PW-8) had gone to bring wood from the nearby forest and while they were cutting the trees, at about 9 AM some miscreants

having arms met complainants and asked the complainant party to put aside axes. After asking names of the complainants, they were taken deep

inside the jungle, where they cooked food and offered some food to the complainant party and had their own food and after that they took Dwarika

(PW-3) Ramadhar (PW-4) and Rajendra Singh (PW1) along with them leaving behind complainants Siyaram (PW-7), Balram (PW-2), Sonpal (PW-8)

and Lachhi (PW-5). While taking three persons, they had tied hands of the other persons with a tree and directed them to send ransom of

Rs.5,00,000/- on the banks of river Chambal in lieu of Dwarika, Ramadhar and Rajendra. Out of nine accused persons, seven were wearing black

robes, while two were wearing yellow colour robes. It is prosecution's case that named and unnamed accused persons had abducted three persons,

Dwarika Prasad (PW-3), Rajendra (PW-1) and Ramadhar (PW-4) for ransom and had subjected them to cruelty.

(3) Initially trial was conducted by the learned Additional Sessions Judge against four persons namely Kallu Jatav, S/o Ratnu Jatav, Sugar Singh S/o

Harigyan, Mohar Singh, S/o Ramdayal and Durga S/o Mayaram. Learned Additional Sessions Judge acquitted Sugar Singh holding that charges under

Sections 148, 365, 364A of IPC are not proved against accused Sugar Singh as none of the witnesses testified his presence.

(4) All the accused persons were charged under the provisions of Sections 148, 365, 364-A of IPC. Learned Additional Sessions Court has convicted

Kallu, Mohar Singh and Durga under the provisions of Sections 148, 365 and 364-A of IPC. They have been sentenced with two years imprisonment

under Section 148 of IPC with fine of Rs.500/and in default of payment of fine amount, three months R.I. They have been convicted with sentence of

five years R.I. and fine of Rs.5000/- under Section 365 of IPC and in default of payment of fine six months additional R.I. They have also been

convicted under Section 364-A of IPC with life imprisonment and fine of Rs.10,000/- and in default of payment of fine, additional R.I. of two years.

(5) It is the contention of the learned counsel for the appellants that F.I.R. (Ex.P-1) dated 14.05.2000 was recorded at 9 AM at the instance of

Balram (PW-2) against five named persons and four unnamed persons. It is submitted that five named persons were Vadna Banjara, Ramesh

Banjara, Mohar Singh, Jagga Banjara and Ramhet Kushwah. It is submitted that two of the appellants namely Kallu and Durga were not named

accused. It is submitted that trial Court had declared co-accused Haripandit, Gabbar, Ramlakhan and Ramhet Kushwah as absconding. It is submitted

that thus, out of four absconding co-accused, only Ramhet Kushwah is a named accused and three persons were unnamed, out of four against whom

F.I.R. was lodged.

(6) It is submitted that since against nine persons, five named and four unnamed, F.I.R. was lodged, therefore, appellant No.1 Kallu and appellant

No.3 Durga Prasad have been falsely implicated. It is submitted that F.I.R. was against nine persons but the fact remains that three unknown persons

were declared absconding. Out of five named persons, Vadna Banjara and Ramesh Banjara were eliminated in an encounter, thus against the present

appellants and Sugar Singh, trial was conducted, which demonstrates that trial has been conducted against innocent persons.

(7) It is also submitted that no T.I.P. was conducted. It is further submitted that PW-2 Balram, who is witness to the spot map, has categorically

mentioned that he never visited the scene of crime again then his presence at the time of preparation of the spot map (Ex.P-2) becomes doubtful. This

statement also demonstrates that spot map was prepared while sitting in the Police Station and it was never prepared at the spot. It is also submitted

that prosecution has failed to examine witnesses of recovery Ex.P-4 namely Dr. Munnalal Mishra and Parmal Singh and, therefore, in absence of their

examination, recovery also becomes doubtful. It is further submitted that witness to supurdaginama (Ex.P-5) namely Rampal was also not examined,

though it has been attributed that it was Rampal, who paid the ransom, therefore, in absence of payment of ransom being proved, charges under

Section 364-A of IPC are not proved because ransom is an important ingredient of Section 364-A of IPC.

(8) Learned counsel for the appellants also submits that though Dwarika and Ramadhar had given their statements under Section 161 of Cr.P.C. that

the accused were sleeping under the influence of alcohol when they ran away but such statement under Section 161 Cr.P.C. as given by Dwarika and

Ramadhar were not exhibited by the prosecution.

(9) Learned counsel for the State, on the other hand, submits that it was very much within the authority of the defence counsel to have confronted

Dwarika and Ramadhar with their statements of 161 Cr.P.C. and since they have not been confronted with their statement, that will not give any

advantage to the defence counsel i.e. to the appellants. It is also submitted that now appellants counsel is estopped from raising this plea. It is further

submitted that to frame and sustain the charge under Section 364-A of IPC only demand for ransom is to be established and payment of ransom is not

must. It is also submitted that minor aberrations and embellishments will not affect the case of the prosecution. It is submitted that the judgment is well

reasoned and there was proper conduct of the trial in which accused persons have been convicted and that does not call for any interference.

(10) In this background, evidence of witnesses examined on behalf of the prosecution is to be appreciated. In all prosecution examined eight

witnesses. PW-1, Rajendra Singh admitted that statement-Ex.D-1 was never given by him to the police and this statement was given by his brothers

to the Police. He deposed that he is knowing Durga, Mohar Singh and Kallu but did not give any description as to how he had identified each one of

them. It is also admitted in cross examination that a ransom of Rs.3,15,000/- was given but if it is not mentioned in Ex.D-1, then he is not aware of the

reason for such omission in Ex.D-1. Â However, he admitted that if it is not mentioned in the case diary statement that sum of Rs.3,15,000/- was

given as ransom, then he is not aware of the reasons for such omission.

(11) PW-2 Balram, who is author of F.I.R. (Ex.P-1) deposed that accused Kallu is known to him and he will recognize Durga and Mohar Singh if they

come in front of him. After seeing Durga and Mohar Singh, this witness accepted that they were also present at the place of incident. This witness,

however, in his cross examination admitted that he had given names of the accused persons as were called in the forest. However, in his cross

examination, he admitted that while making his police report, he has not mentioned that name of which accused was mentioned on which tree. He said

that after lodging report, he had read names of the accused persons on tree. In cross examination he has admitted that after he was released from

jungle, he had not gone to jungle again. PW-2 Balram has admitted in his cross examination about Durga and Mohar Singh that he does not know them

by name and only knows them by their faces. He further deposed that ransom amount was not paid in front of him.

(12) PW-3 Dwarika Prasad deposed that he knows all the four accused persons who tied them. PW-4 Ramadhar also deposed that he knows Kallu,

Durga and Mohar Singh and on payment of ramsom of Rs.3,15,000/- by his uncle, they were released. This witness also remained steady about his

deposition that he knows Mohar Singh, Durga and Kallu.

(13) PW-5 Lachhi also deposed that he knows all the four accused persons. He supported prosecution story. PW6 Kamal Mahule is the person who

got recorded the F.I.R. on 14.05.2000 while he was posted as Station House Officer. He admitted recording of arrest memo, recovery Panchnama

(Ex.P-4) and also supurdagi panchnama (Ex.P-5).

(14) PW-7 Siyaram, against whom PW-3 Dwarika Prasad and PW-4 Ramadhar alleged that he was instrumental in getting them abducted in the

hands of the dacoits, supported prosecution story that when complainants were getting some wood, then some miscreants had come and had tied all of

them and had taken three persons namely Rajendra, Dwarika and Ramadhar along with them.

However, he refused to identify the present appellants in the Court. He admitted that there was talk in the village that three persons were released

after accepting amount of ransom. In fact, he categorically admitted in paragraph 6 that he is not aware about the quantum of the amount which was

taken by these persons but definitely these persons had taken money before releasing three abducted persons.

(15) In this backdrop of evidence which has come on record contentions raised by the appellants are to be appreciated. As far as contention of the

appellants that no Test Identification Parade was conducted is concerned, the fact of the matter is that PW-1 Rajendra, PW-3 Dwarika and PW-4

Ramadhar, who were abducted, were in the company of the appellants for a duration of 8â€"10 days and they have identified such persons in the

Court, therefore, much weight cannot be attached to not holding of identification Parade. It is not the case that the complainants had seen the accused

persons only once. The accused persons were in the contact of the complainant party for 8-10 days. In the case of Pammi alias Brijendra Singh Vs.

State of M.P. as reported in A.I.R. 1998 SC 1185, it has been held that where the eye witness had not seen the accused for the first time and the

names of some of the assailants had been mentioned by him in the F.I.R. lodged by him soon after the occurrence, it has been held that failure to hold

Test Identification Parade would not vitiate the evidence of such eye witness. In fact, test identification is considered as a safe rule of prudence for

corroboration and it may not be substantive evidence. Since the accused persons have been identified before the Court in an unequivocal term and in

fact PW-3 Dwarika Prasad has categorically taken names of these three appellants and has given justification that since other accused persons used

to take their names, therefore, he knows them, PW-4 Ramadhar has also mentioned that he had given name of Kallu accused as he was present at

the place of incident, PW-8 Sonpal in paragraph 5 of his cross examination admitted that Kallu was not present before the Court on that date of cross

examination and he was present at the time of incident and he had even given description of Kallu properly, therefore, appellants will not gain any

advantage of non-conduction of Test Identification Parade.

(16) As far as second contention of the appellants that statements recorded under Section 161 Cr.P.C. of Dwarika and Ramadhar were not exhibited

and in those statements they had deposed that accused were sleeping under the influence of alcohol when they ran away is concerned, this will not be

accepted to the advantage of the appellants, inasmuch as it was always open to the defence counsel to have confronted Dwarika and Ramadhar with

their 161 statements. In absence of such confrontation, no advantage can be extended in favour of the appellants.

(17) As far as appellants' contention that witnesses to recovery were not examined, recovery Panchnama has been proved by PW-6 Kamal Mahule,

who was S.H.O and who had prepared such recovery panchnama (Ex.P-4). Similarly, Kamal Mahule has proved supurdaginama (Ex.P-5) and these

facts of recovery and supurdaginama being not disputed by the appellants such minor omissions will not throw away the case of the prosecution.

(18) Now, the last limb of argument that provisions of Section 364-A will not be applicable, inasmuch ransom could not be proved is to be dealt with.

The essential ingredients of offence under Section 364-A are as follows:-

“364-A. â€"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.â€​

(19) The prosecution has proved beyond doubt that the accused abducted three persons and these three persons were kept under detention by the

accused. The accused had threatened to cause death or hurt to such detained persons and the accused did commit the offence of compelling the

relatives of the abducted persons to pay the ransom. In fact, it is mentioned in the F.I.R. itself that a sum of Rs.5,00,000/each was demanded for

release of abducted persons. Thus, even if prosecution has not examined Rampal who gave statements that he had paid ransom, then appellants will

not have any advantage because payment of ransom has been proved and the only requirement of Section 364-A IPC is to compel to do or abstain

from doing any act to pay a ransom. Thus, merely intention to compel somebody to pay the ransom is sufficient compliance of Section 364-A of IPC.

(20) So far as appellants' arguments that there was mismatch in the identity and number of accused persons as mentioned in F.I.R. is concerned, it

has been considered by the Sessions Judge before putting present appellants to trial. It is not the case of the appellants that all the accused were

present at the same time when abduction/kidnapping had taken place. In fact, nine persons were present at the time of the incident and, therefore,

F.I.R. was lodged against nine persons, five named and four unknown but later on abducted persons met other accused and their names have been

added by the investigating officer. Therefore, much importance cannot be attached to the suggestion of the appellants' counsel that there is mismatch

in the identity of the accused and, therefore, present unnamed appellants Kallu and Durga should atleast be given benefit of doubt and be acquitted.

(21) In fact, in the case of Malleshi Vs. State of Karnataka (2004) 8 SCC 95 so also in the case of Vinod Vs. State of Haryana (2008) 2 SCC 246, it

has been held that communication of payment for ransom is sufficient for the prosecution to prove a charge under Section 364-A of IPC, if in any

condition it is able to prove abduction and keeping such person under custody or detention.

(22) Appellants have failed to adduce any evidence that they had any other motive or enmity with the complainant party and, therefore, in absence of

there being any other evidence pointing out towards innocence of the appellants, therefore, presence of the appellants and their involvement in the

crime prima facie appears to be proved.

Thus, the appeal fails and is therefore dismissed.