Mithilesh and Another vs State of Madhya Pradesh

G.D. Saxena, J.—The appellants/accused have filed this appeal u/s 374(2) of the Code of Criminal Procedure 1974 against a Judgment dated 11th June 2004 recorded in Special Sessions Case No. 16/2003 by the Special Judge (Dacoity), Sheopur (M.P.) convicting the present accused/appellants for abducting Omprakash, Subhash, Santosh and others for extracting the ransom amount, u/s 364-A of I.P.C., read with section 11/13 of the MPDVPK Act and sentencing them to suffer imprisonment for life with a fine of Rs. 1,000/- each, in default of payment of which to suffer additional three month''s rigorous imprisonment. The facts, in short, just for deciding the case are that on 19th November 2002 at about 9 p.m., in night, the complainant Naresh Kumar accompanied with other farmers belonging to villages Sarasram and Bhenta loaded their vegetables items viz. tomatoes and green chili crops in several buckets in a hired matador, driven by Brijpal and owned by Kailash Parihar for going to Morena for the purpose of selling the said items in vegetable market. As said matador reached near Dudhai bridge, some miscreants by putting stones on the road got stopped the vehicle. Two miscreants having firearms were standing on the spot as guards. As the matador was stopped, the miscreants forced the passengers to come out. The miscreants who were six in numbers then tied their hands by mufflers from their back and compelled them to go inside the forest. There they manhandled them and asked their castes, income and properties. Thereafter the miscreants released some of the persons excepting three, namely Omprakash, Santosh and Subhash. So, the F.I.R. was lodged by the complainant Naresh Kumar. It is alleged that after releasing the other captured persons, the miscreants compelled those three persons to go with them in the forest of village Jakhodi to extract the money for their release. On next day morning, when the miscreants were sleeping, one of abductees, Omprakash taking advantage of the moment, escaped from the spot and reached at nearby village where with the help of local villagers he informed the incident to the police. The police then arranged encounter at large scale. Miscreants became afraid and anticipating presence of the police at large scale, they released the rest two captured persons. The investigation was set into motion. Case-dairy statements of the complainant and other material witnesses were recorded. Recovery memo of the abductee was prepared and thereafter on 28th March 2000, his case diary statement was recorded. Mithilesh was arrested on 3rd March 2003. Test Identification Parade was conducted on 25th April 2003 by Naib Tahsildar Jora district Morena. Another accused Kamlesh was formally arrested on 27th February 2003 and TIP was conducted on 20th April 2003 by Naib Tahsildar Morena (M.P.). After investigation, the charge sheet was filed before the Special Judge. The trial was commenced. After recording evidence, the present accused-appellants were convicted and sentenced for commission of the alleged offence, hence this appeal.

The contention of the learned counsel appearing for the appellants is that the judgment under appeal is against the law and procedure and therefore same is liable to be set aside. It is submitted that to prove the guilt against accused the prosecution examined abductees/eye-witnesses, namely, Naresh Kumar (PW-1), the complainant, Omprakash (PW-2), Vijayapal (PW-3), Santosh Dhakad (PW-4), Subhash Chandra Dhakad (PW-6) Chimman Singh Jadon (PW-5), Uttam Singh Rajoria (PW-7), the Investigating Officer. It is submitted by the learned counsel for the appellants that the statements of above witnesses do not telly with each other and under specific circumstances, the F.I.R. was lodged which was against unknown miscreants by an abductee Naresh Kumar (PW-1). It is further submitted that the TIP was conducted at belated stage. Accused Mithilesh was identified by only one of the abductees. During investigation, no demand of ransom from abductees or other persons related to abductees was made by the accused. The persecution case rests only on the testimony of interested witnesses, who did not even support its version. Therefore, as per learned counsel, the prosecution by evidence of these witnesses could not be able to prove its case beyond reasonable doubts. Ultimately, it is prayed that by allowing the appeal, judgment under challenge may be set aside and the accused-appellants may be acquitted of the alleged offence.

Per contra, the learned Public Prosecutor appearing on behalf of the respondent/State, contended that the prosecution succeeded to prove the guilt against accused/appellants by adducing evidence and there is no infirmity or illegality committed by the trial court in awarding conviction and sentence. Hence, it is prayed that by dismissing the appeal, the judgment of the trial court may be maintained.

Heard the learned counsel appearing for the appellants and the learned Public Prosecutor for the respondent/State. Also perused the record of the trial court and the law applicable to the present case.

The question for consideration in this appeal is whether the ingredients of offence of kidnapping for ransom are proved by the testimony of abductees and eye-witnesses, and/or whether the learned trial Judge has committed any illegality in placing reliance on the said materials before reaching at the conclusion.

Section 364A deals with ''Kidnapping for ransom etc.'' It reads as follows:

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 organization or any other person) to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.

The section refers to both "Kidnapping" and "Abduction". Section 359 defines Kidnapping. As per the said provision there are two types of kidnapping i.e. (1) kidnapping from India; and (2) kidnapping from lawful guardianship. Abduction is defined in Section 362. The provision envisages two types of abduction i.e. (1) by force or by compulsion; and/or (2) inducement by deceitful means. The object of such force or compulsion must be the going of the victim from any place. The case at hand falls in the first category.

The offence of abduction is a continuing offence. Section 364-A was amended in 1992 by Act XLII of 1993 with effect from 22-5-1993 and it was subsequently amended in 1995 by Act XXIV of 1995 with effect from 26-5-1995. The section provides punishment for kidnapping, abduction or detaining for ransom. To attract the provisions of Section 364-A what is required to be proved is (1) that the accused kidnapped or abducted the person; and (2) kept him under detention after such kidnapping and abduction; and (3) that the kidnapping or abduction was for ransom.

To pay a ransom as per Black''s Law Dictionary means "to pay price or demand for ransom". The word "demand" means "to claim as one''s due"; "to require"; "to ask relief"; "to summon"; "to call in Court"; "An imperative request preferred by one person to another requiring the latter to do or yield something or to abstain from some act;" An asking with authority, claiming." The definition as pointed out above would show that the demand has to be communicated. It is an imperative request or a claim made.

The Apex Court while interpreting Section 364-A of I.P.C. in case Malleshi Vs. State of Karnataka, , observed as under:

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. The Apex Court while clarifying the demand of ransom, observed in the operative part of its judgment as under:

Ultimately the question to be decided is "what was the intention? Was it demand of ransom?" There can be no definite manner in which demand is to be made. Who pays the ransom is not the determinative fact.

What is relevant is the demand for ransom and not the actual payment of ransom, clearly proves that a demand for ransom was in fact made. Even otherwise, it is not the defence of the appellants that there existed any enmity between the victims and the appellants for false implication. Once the abduction has been established, surely the abductors did not do so in such planned organized manner with smooth flawlessness discussed, to play hide and seek games or only to scare the victims out of a business dispute or for any other reason to force them to desist from a particular course of action. An act of abduction in the present manner is the result of meticulous planning of the logistics with separate roles assigned to the individual players. The demand for ransom, therefore, clearly stands established. That it was actually paid or not is irrelevant.

From the decision in the case of Malleshi (supra), it becomes abundantly clear that before an offence can be said to be covered u/s 364-A I.P.C., there must be the factum of kidnapping or abduction and that such kidnapping or abduction must be for a ransom. The demand for ransom is also required to have been conveyed.

To prove the guilt against the accused, the prosecution examined Naresh Kumar (PW-1), the complainant (PW-1) Omprakash Dhakad (PW-2), abductee, Vijayapal (PW-3), Santosh Dhakad (PW-4), abductee and Subhash Chandra Dhakad (PW-6), the abductee.

Naresh Kumar (PW-1), the complainant deposed that on 19th November 2002 at about 9 p.m., in night, the abductees Subhash Dhakad and Santosh of village Bhenta loaded their tomatoes and green chili crops kept in buckets in a hired matador of one Kailash Parihar for selling the same in Morena vegetable market. On the way, other persons Kailash Shakya, Hakim Dhakad, Anil Baghele and Ashok Jatav from village Sahasram also joined them who loaded their tomatoes and green chili crops in the same matador (goods-carrier). As the matador reached near Dudhai bridge in order to create obstacle, the miscreants put stones on the road. The miscreants were present having firearms on the spot. As matador stopped on the spot, the miscreants surrounded it and compelled the passengers to come out and carried them forcefully into the forest. After manhandling, the abductors asked the captured persons about their castes and properties. They released the captured persons except Omprakash, Subhash Dhakad and Santosh Dhakad. The complainant Naresh Kumar and others after their release returned back and on next day morning, he went to police station Gaswani and lodged the F.I.R. against unknown miscreants who abducted the passengers of matador. The spot map was prepared in his presence. However, he could not identify the accused present in court.

Omprakash Dhakad (PW-2), Santosh Dhakad (PW-4) and Subhash Dhakad (PW-6) of village Behata deposed that the miscreants after releasing the other abductees who were residents of Sahasram carried them away to forest hill of Antri Jakhodi. The abductees deposed that when they left the village, they were carrying with them meals which were taken out by the miscreants. The miscreants asked them that they will be in their custody till the ransom amount is not received. It was further stated by them that if the ransom amount was not paid, it will result in dare consequences. Then three miscreants went to village for making arrangement of foods while rest three remained on the spot to keep watch on the abductees. Thereafter, the miscreants asked them to lay at rest. When the miscreants were in a sound sleep, taking advantage of the moment, Omprakash fled away from the spot and reached in village Antri. With the help of villagers, he approached the S.P. of the district, on motorcycle and narrated the whole incident to him. Then the S.P. with police force immediately reached at forest hill and surrounded the area where the abductors with two rest abductees were present. Seeing the police party, the abductors immediately released the abductees and fled away inside the forest. On searching by police force, two guns and other material left by the accused-appellants were seized by the police. Santosh Dhakad (PW-4) in his evidence deposed that abductors demanded Rs. four-five lacs as ransom amount for their release. He further stated that if the police did not raid in time or their family-members were unable to satisfy demands of the miscreants, they would have been killed by the abductors. This witness also identified in dock two accused, namely, Kamlesh and Mithilesh among six abductors. Apart from his statement, Subhash Chandra Dhakad (PW-6) also stated that after three to four months of their abduction by the miscreants, the In-charge of the Police Station Gaswani called him in police station and he attended Sub Jail. Where in presence of one officer, he identified accused Mithilesh Sharma among 5-6 persons in jail premises. Identification Memo is Ex. P/3. He also identified the accused Mithilesh and Kamlesh present in the dock during trial.

Chimman Singh Jadon (PW-5) In-charge of the Police Station Gaswani, district Shivpuri stated that on 20th November 2002 at about 9-15 a.m., complainant Naresh Kumar came to Police Station and lodged the F.I.R. (Ex. P/1) that Omprakash, Subhash and Santosh Dhakad, residents of village Behta were abducted by miscreants. He wrote the F.I.R. Thereafter he transferred the F.I.R. to Police Station Chilwani in which jurisdiction offence was committed. He also transferred the case diary for further investigation to the concerned police station.

Uttam Singh Rajoria (PW-7) In-charge of the Police Station Chilwani deposed that on 20th November 2002 he was returning back to his police station after court evidence from Sheopur and reached at about 9-30 p.m. in night, when the In-charge Inspector of the Police Station Gaswani Chimman Singh Jadon (PW-5) handed over the F.I.R. lodged by complainant Naresh Kumar because the crime was committed in the jurisdiction of his police station. After reaching at his police station he wrote the report vide Ex. P/4 and registered Crime No. 11/2002 against miscreants. In compliance of the provision u/s 157 Cr.P.C., he sent the copy of the F.I.R. to concerning court. On the same night, he got an information through his wireless set that the police force had encircled the Antri Hills for searching the dacoits and on instructions he reached the spot. During operation of search, Police Ghatigaon Gwalior seized one single shot Mauser gun, one half gun, and other articles left by the dacoits on the spot. He received the seized articles vide seizure memos. On 21st November 2002 he prepared the spot map (Ex. P/2) and recorded the case diary statements of witnesses Naresh Kumar, Ashok Kumar, Anil Kumar, Brijpal, Hakim Singh and Kailash. On 22nd November 2002, he recorded the case diary statements of abducted persons, namely, Omprakash, Santosh and Subhash after their release from custody of the accused. On 5th March 2003, he with permission of concerning JMFC of the court at Vijaypur, formally arrested accused Mithilesh and thereafter on his request letter, the Naib Tahsildar Jora conducted the test identification parade. Accused Mithilesh and Kamlesh were proclaimed criminals. He filed the documents issued by the concerning police officers showing awards for making arrest of these accused.

In the light of the aforesaid discussions on the factual and legal aspects of the matter, the prosecution case stands established from the ocular and other evidence available on record that on the day of incident on 19th November 2002 at about 9 p.m. in night when Omprakash, Santosh and Subhash were adbucted, they were proceeding in a matador after loading their vegetable items to Morena vegetable market from their respective villages. When the said vehicle reached near Dudhai bridge, some miscreants by putting stones on the road got stopped the vehicle and forced the passengers to come out. The miscreants who were six in numbers then tied their hands by mufflers from their back and compelled to go with them in the forest. Afterwards, they released some of the persons while three, namely, Omprakash, Santosh and Subhash residents of village Behta were forcefully carried away in the forest for fetching ransom amount. One abductee Omprakash taking advantage of their carelessness succeeded to run away and reached in village Antri. With the help of local residents of village he informed the police officers of the area. On their information, police immediately conducted the operation at large scale and ultimately succeeded for getting released two other abductees, namely Subhash and Santosh dhakad. However, the alleged miscreants fled away. The miscreants Kamlesh and Mithilesh were arrested after a long period of four months. Out of them one was identified before Naib Tahsildar in Sub Jail by a witness Subhash. Omprakash (PW-2), Santosh Dhakad (PW-4) and Subhash Dhakad (PW-6) identified both the accused in dock during trial. These witnesses/abductees categorically deposed that accused/abductors made a demand of Rs. four to five lacs for their release and a threat was given to them that in case of non payment of ransom amount, the abductees would be killed.

The next contention of the accused/appellants is that the report of the incident lodged by Naresh Kumar (PW-1) who was released after the incident alongwith other abductees, did not indicate the names of the abductors and therefore the false implication in this case of the accused prima facie reveals.

This argument raised by the learned counsel does not find support from the decision of the Apex Court in the case of Mahesh Vs. State of M.P. (2011) 9 SCC 324 wherein it has been held:-

we find that the aforesaid first information report was submitted by PW 1 who was not an eye-witness to the incident. Although it has come in evidence that he was informed about the incident by PW 2, PW 4 and PW 5 immediately on his reaching the place of occurrence of the incident, yet since he was not the eyewitness to the incident, he may not have stated the said fact in the first information report for which it cannot be said that the entire prosecution case should falter. Besides, it is an established law that so far as the first information report is concerned, it is only a report submitted informing the police about the commission of the crime. It is not required that the said first information report should contain a detailed and vivid description of the entire incident. Further, it cannot be expected from the informant, especially, when the informant is a relative of the injured/deceased to give each and every minute detail of the incident in the first information report. Therefore, PW 1 who had filed the information with the police not being an eyewitness, it cannot be said that non-mentioning about the role played by the present appellants in the first information report would be in any manner fatal to the case of the prosecution.

Next submission of the learned counsel appearing on behalf of the appellant/accused is that no TIP during investigation was conducted for identification of the arrested accused either by the abductees or eyewitnesses. This type of argument has been discussed and answered in the case of Sheo Shankar Singh Vs. State of Jharkhand and Another, wherein it has been held that:-

It is fairly well-settled that identification of the accused in the Court by the witness constitutes the substantive evidence in a case although any such identification for the first time at the trial may more often than not appear to be evidence of a weak character. That being so a test identification parade is conducted with a view to strengthening the trustworthiness of the evidence. Such a TIP then provides corroboration to the witness in the Court who claims to identify the accused persons otherwise unknown to him. Test Identification parades, therefore, remain in the realm of investigation. The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any provision under which the accused may claim a right to the holding of a test identification parade. The failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the Court. As to what should be the weight attached to such an identification is a matter which the Court will determine in the peculiar facts and circumstances of each case. In appropriate cases the Court may accept the evidence of identification in the Court even without insisting on corroboration. The decisions of this Court on the subject are legion. It is, therefore, unnecessary to refer to all such decisions.

As discussed above, in the present case the abductees Omprakash, Santosh and Subhash spent considerable period in custody of the accused. Therefore, there should not be any mistaken identification on their parts because they had full opportunity of knowing the miscreants which they proved by identifying the accused/appellants in dock during trial. Same is termed to be substantial evidence.

Lastly, the contention of the appellants/accused is that during investigation no proof of delivery of ransom money to abductors was recovered.

In the present case witness Omprakash (PW-2), Santosh Dhakad (PW-4) and Subhash Dhakad (PW-6) had clearly stated that one of them (Omprakash) by taking advantage of the carelessness of the abductors got opportunity of running away from the spot. The rest two namely Santosh Dhakad (PW-4) and Subhash Dhakad (PW-6) in their statements before the court deposed that if the police party did not reach in time and they would not be rescued and if the amount of ransom was not paid by their family members, the abudctees would have been killed by them. Under these circumstances, there was no occasion for recovery of the ransom amount or proof of payment of ransom to abductors. Even otherwise, in the light of the decision of the Apex Court in the case of Malleshi (supra) such lapses on the part of the Investigating Officer would not be fatal so as to reject the versions given by the eye-witnesses. At this stage it would be relevant to refer relevant paras of the said decision.

It cannot be laid down as a straitjacket formula that the demand for payments has to be made to a person who ultimately pays. By way of illustration it can be said that a rich businessman is abducted. He is told that for his release his family members have to pay a certain amount of money; but money actually belongs to the person abducted. The payment for release is made by the persons to whom the demand is made. The demand originally is made to the person abducted or kidnapped. After making the demand to the kidnapped or abducted person merely because the demand could not be conveyed to some other person, as the accused is arrested in the meantime, does not take away the offence out of the purview of Section 364-A. It has to be seen in such a case as to what was the object of kidnapping or abduction. The essence of abduction as noted above is causing to stay in isolation and demand for ransom.

Thus, it is clear from the evidence of abductees Omprakash (PW-2), Santosh Dhakad (PW-4) and Subhash Dhakad (PW-6) that after abduction and confinement in a secret place, a demand for ransom was made by the abductors for release of the abductees and for release of the abductees, the ransom amount was paid. So, all the ingredients of the offence are successfully proved. As already pointed out above to attract the provisions of Section 364-A of I.P.C., the prosecution has to prove that the accused kidnapped or abducted a person and that the kidnapping was for ransom. For the purpose of getting paid a ransom, a demand has to be made and communicated and unless the price of retrieval or rescue is made, the question to pay a ransom would not arise. From discussions of the evidence, the essential ingredient to attract the provisions of Section 364-A is very much available here which show that a demand was made by the abductors on the abductees and their relations asking for the payment of ransom. "To pay" means to set in motion the demand for payment which has to be communicated to the person from whom the demand to pay is made. Unless that is done prosecution cannot succeed in covering its case u/s 364-A of I.P.C. Thus offence u/s 364-A of I.P.C. is proved from the evidence on record. Consequently this appeal fails hence is dismissed.