Mulu vs State of Madhya Pradesh

G.D. Saxena, J.—This appeal has been preferred by the accused/ appellant having being aggrieved by a judgment dated 5th June 2002 of conviction and sentence delivered in Sessions Trial No. 408/2000 by the Additional Sessions Judge Lahar, district Bhind, convicting appellant/accused Mullu for kidnapping Ramnaresh for ransom, which is an offence punishable u/s 364A of I.P.C. and sentencing him to suffer imprisonment for life with a fine Rs. 5,000/- and in default to serve additional imprisonment of three months. The facts, in short, just for the adjudication of the case are that on 7th May, 2000, at about 7 p.m., when Ramnaresh and his father were ploughing the field, at that moment, six unknown persons came armed with guns and they took away Ramnaresh with them for ransom. It is alleged that the abductee was kept in confinement near about 23 days in the forest and after realisation of the ransom amount, the abductee could be released from their illegal confinement. After lodging the report by Ramesh (PW-2), brother of the abductee/complainant, the investigation was set into motion. Case-diary statements of the witnesses were recorded and recovery memo of the abductee was prepared. Sole accused was arrested. After investigation, the charge sheet was filed before the criminal court. On committal, the trial was commenced. After recording evidence, the present accused-appellant was convicted and sentenced for commission of the alleged offence, hence this appeal.

The learned counsel for the appellant submitted that in the present case, there is no demand for ransom. Therefore, according to him, a case u/s 364A of I.P.C. cannot be made out against the present accused. To prove the guilt against accused, the prosecution examined chance/eye-witnesses, namely, Ramnaresh (PW-1), the abductee, Ramesh (PW-2) brother of the abductee/complainant, Jagat Singh (PW-3) eye-witness, Uma Shankar (PW-4), Tilluram (PW-5) Patwari of the area, Dinesh Kumar Tiwari (PW-6), Shiv Mohan Singh Chauhan (PW-7), I.O., and Munna Lal Tiwari (PW-8). On the other hand, the accused examined in defence Udaiveer Singh (DW-1). It is submitted by the learned counsel that the statements of above witnesses do not telly with each other. Even, the F.I.R. was lodged in specific circumstances against un-known miscreants by the complainant. It is further submitted that no test identification parade during investigation was conducted for identification of the arrested accused by the abductee and eye-witnesses and during investigation, no letter written by the accused or abductee or proof of delivery of ransom money was recovered. Therefore, according to learned counsel, the prosecution by adducing evidence of these witnesses could not be able to prove its case beyond reasonable doubts. Hence, it is prayed that by allowing the appeal, judgment under challenge may be set aside and the accused-appellant be acquitted of the alleged offence.

The learned Public Prosecutor for the respondent/State, on the other hand, submitted that a clear case u/s 364A of I.P.C. had been made out as the said Ramkishan was abducted and detained for a period of 23 days after he had been tied. He further submitted that demand of ransom was clearly conveyed to abductee and his family members regarding which complainant Ramesh (PW-2) deposed clearly. There was an evidence on record of the complainant to arrange money for the safely release of Ramnaresh and non-cooperation would have resulted in Ramnaresh being killed. Thus, it is a case where the demand had clearly been conveyed to the person from whom the demand was to be made. It is accordingly prayed that by dismissing the appeal, the conviction and sentence of the accused be upheld.

Heard the learned counsel appearing for the appellant 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 abductee 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 ?.

The bare reading of Section 364A of I.P.C., which is reproduced as under, indicates that kidnapping for ransom would be attracted when the kidnapper makes a demand to pay a ransom.

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 to lay a ransom, shall be punishable with death or imprisonment for life and shall also be liable to fine.

The 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 compulsion or inducement must be going of the victim from any place. In the case of Malleshi Vs. State of Karnataka, ), same aspect of the matter has been dealt with by the Apex court observing as under:-

The offence of abduction is a continuing offence. This Section 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 364A 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. Strong reliance was placed on a decision of the Delhi High Court in Netra Pal Vs. The State (NCT of Delhi), to contend that since the ransom demand was not conveyed to the father of PW. 2, the intention to demand was not fulfilled.

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.

Netra Pal''s case (supra) was one where a child was kidnapped. The court found as a fact that since the victim was a child, demand for ransom could not have been made to him and only the demand to pay the ransom could have been made to his guardians. In that factual background it was held that the offence was not u/s 364A but was u/s 362 of the IPC. Accordingly conviction of the accused was altered to offences relatable to Sections 363 and 365 of the IPC.

In the instant case as the factual position found by the trial court and the High Court goes to show, the object of abduction was for ransom. This was clearly conveyed to the victim PW-2. He was even conveyed the amount to be paid. It cannot be laid down as a strait-jacket formula that the demand for payment 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 364A. 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. The demand in the present case has already been made by conveying it to the victim. In Netra Pal''s case (supra) the High Court noted that there was no demand to pay. The factual position in that case as noted above is that the victim was a child to whom no demand could have been made. In that background the High Court took the view that Section 364A has no application as no demand has been communicated. The position factually is different here. 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, as discussed supra.

From the decisions in the cases of Netrapal (supra) and Malleshi (supra), it becomes abundantly clear that before an offence can be said to be covered u/s 364A IPC, 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.

Now coming to the evidence, abductee Ramnaresh (PW-1), deposed that on 7th day of May 2000 at about 7 p.m., in evening, he was at the tube well of his agriculture field when persons namely, Mullu, Mohkam Singh, Ram Naresh accompanied with one other unknown person having guns and sticks came to him. At that time, one Jagat Singh was also there because he had brought meals from his house for the family members of the abductee. He deposed that the persons aforesaid forcibly took him to the forest. At the time of his deposition before the court only accused Mullu who was present in court was alive while rest accused were dead. He stated that all above-named accused caught hold of him and surrounded by guns and compelled him forcefully to go into the forest. He, except making resistance could not do for his escaping. At that time his father was also present on the spot. His father also tried to save him but the accused pushed him down. When his father raised alarm, the accused including accused Mullu inflicted him 2-3 blows with sticks and asked to keep quite. All accused then carried him towards river Sindh. The accused also abducted one Rajkumar Harijan, a resident of village Tejpur. He stated that the accused tied him with latches and confined for 23 days in the forest. They asked him to bring Rs. Five Lacs from his house if he wished to be released. He stated that after sometimes when he released he could be able to know that his brother Ramesh made an arrangement of Rs. One Lac and five thousand and paid the amount to accused Mullu and other three miscreants for his release and after making payment, he was got released. After release of the witness, the police prepared memo of recovery vide Ex. P/1. In his cross-examination, during recording court-statement, some omissions and contradictions appeared but same do not carry much weight. He admitted that during his confinement in the forest for 23 days, he identified the accused Mullu and Ramnaresh. Accused Mullu was having gun when he abducted the witness with help of other accused.

Ramesh (PW-2) younger brother of abductee deposed that on 7th May 2000, his elder brother Ramnaresh, father Kalicharan and servant Gulai were present at the tube well situated on his agriculture field when one Jagat Singh came there with meals for the above persons present. At about 8 p.m., in night, accused Mullu, Ramnaresh, Mohkam and one unknown miscreant made abduction of his brother Ramnaresh for ransom and carried him forcefully away into forest of Parraich. He after incident reached to his residence and informed the incident. He lodged the F.I.R. (Ex. P/2) of the incident on the next day at Ajnar police outpost. The police reached the spot and prepared the map (Ex. P/3). Thereafter, accused Mullu and other accused by sending the letter demanded Rs. Two Lacs and he paid Rs. One Lac and five thousand as ransom to accused Mullu. On receipt of the ransom amount, the accused released his brother from confinement. In cross-examination, he categorically stated that at time of lodging F.I.R. (Ex. P/2) he could not remember the names of abductors therefore he informed that six unknown abductors abducted his brother. He stated that the letter of demand for ransom of Rs. Two Lacs was not produced by him before the police and he did not possess that letter at the time of recording his court statement.

Jagat Singh (PW-3) deposed that on 7th May 2000 he went to agriculture field after carrying meals. He saw that six persons were sitting on bed having guns and sticks. However, due to darkness he could not observe their faces. All the accused abducted Ramnaresh. The abductee resisted by catching the chain of the door of the pump house but the accused forced him to release the chain of the door by butt of the gun and ultimately took him away. By that time, Kalicharan, father of the abductee went to his residence.

Shiv Mohan Singh Chauhan (PW-7), Head Constable posted in the Outpost Ajnar of Police Station Lahar wrote the F.I.R. (Ex. P/2), lodged by Ramesh (PW-2). Thereafter he prepared spot-map (Ex. P/3) and recorded case diary statements of Kalicharan, Gulai, Jagat Singh and Matru. Munna Lal Tiwari (PW-8) deposed that at the relevant time, he was posted as Head Constable Maharir at P.S. Lahar. On that day, constable Uma Shankar brought the FIR, lodged by complainant from P.S. Ajnar for registration of the same which was registered at Crime No. 84/2000 vide Ex. P/4. Tilluram Gupta (PW-5) Patwari of Halka No. 01 of Lahar prepared the spot map on revenue record maintained by him. Dinesh Kumar Tiwari (PW-6) constable posted in the Police Station Rural Bhind deposed that on 1st July 2000 he formally arrested accused Mullu vide arrest memo (Ex. P/6) in Sub Jail Seodha, district Datia M.P.

Defence witness Udaiveer Singh (DW-1) deposed that prior to the incident he and Dharmendra stood as candidates for contesting the election of Panch of village Rahawali district Bhind and he won over the said election. During election campaign, there was a rift between accused Mullu and Santosh and Santosh threatened accused Mullu to see him in future. Sister of Santosh was married with brother of Ramnaresh, the abductee. So, his plea is that accused Mullu has been falsely implicated in the present crime.

In the light of the aforesaid discussions on the factual and legal aspects of the matter, it transpires from the ocular and other material evidence available on record that on 7th day of May 2000, on Sunday at about 7 p.m. in the evening, abductee Ramnaresh was at his tube well when four persons, namely, Mullu, Mohkam Singh, Ramnaresh accompanied with one unknown person having guns and sticks came there. At that time, one Jagat Singh also reached there who brought meals for the complainant-party. During his deposition before the court, the abductee stated that out of four, only accused Mullu who was present in court was alive whereas rest died. He stated that all above named accused caught hold of him and surrounded by guns. The accused forced him to go with them into the forest, which was protested by him. At that time, his father was also present and he tried for his rescue but the accused pushed him down. When his father raised alarm, other accused including Mullu bet his father by sticks twice or thrice and asked to keep quite. All the accused then carried him towards river Sindh. Ramesh (PW-2) brother of abductee deposed that his father, after incident reached at the residence and informed him of the incident. He lodged F.I.R. (Ex. P/2) of the incident on the next day at Ajnar Police outpost. A perusal of the statement of the complainant clearly goes to indicate that Ramesh was not an eye-witness to the incident but he lodged the F.I.R. on the information furnished by his father.

The next contention of the accused/appellant is that the F.I.R. (Ex. P/2) of the incident lodged by Ramesh (PW-2) did not indicate the name of the abductors and therefore the false implication 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 and Another Vs. State of Madhya Pradesh, 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 by the abductee or eye-witnesses. 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."

In the present case, as discussed above, the abducee Ramnaresh spent near about 23 days in custody of the accused. Therefore, there should not be any mistaken identification on his part because he had full opportunity of knowing the miscreants which he proves by identifying the accused/appellant in dock during trial. Same is termed to be substantial evidence.

Lastly, the contention of the appellant/accused is that during investigation no letter written by the accused or abductee or proof of delivery of ransom money was recovered.

In present case witness Ramesh (PW-2) had clearly stated that the letter of demand for ransom of Rs. Two Lacs was not produced by him to police and he did not possess that letter at the time of recording of his court statement. Although the investigation did not make any attempt to seize the letter of demand and also failed to collect the proof of payment of ransom amount paid to accused abductors but in the light of the decision of the Apex Court in the case of Malleshi (supra) the failure on the part of the investigating officer in non seizing of letter of demand for recovery of ransom and non-collecting of proof of payment of ransom to abductors would not be sufficient to reject the version 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 364A. 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 evidence of abductee Ramnaresh (PW-1) and his brother Ramesh (PW-2) that after abduction and confinement in a secrete place, a demand for ransom was made by the abductors for release of the abductee and for release of the abductee Ramnaresh, the ransom amount of Rs. One Lac and five thousand was paid to the abductor accused Mullu. So, all ingredients of the offence are successfully proved. As already pointed out above to attract the provisions of Section 364A 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 364A is very much available here which show that a demand was made by the abductors on the abductee and his 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 364A. In this case, what we find is that the demand for ransom was raised on abductee and the family of the kidnapped which was communicated. Thus, offence u/s 364A of I.P.C. is proved from the evidence on record.

For the reasons, as discussed above, we do not find force in this appeal, which, in our opinion, is liable to be dismissed. Accordingly, the appeal is dismissed. The conviction and sentence recorded by the trial court against the appellant in respect of offence punishable u/s 364A of I.P.C. is hereby affirmed. Appellant is in jail. Let a copy of this judgment be sent to the Superintendent of the jail concerned. The Lower Court''s Record be sent back.