Punjab Singh vs State of Madhya Pradesh

G.D. Saxena, J.—This appeal has been preferred u/s 374 of the Criminal Procedure Code 1974 by the accused/ appellant having being aggrieved by a judgment dated 3rd July, 2004 delivered in Sessions Trial No. 55/2000 by the Special Judge (Dacoity) Bhind, convicting the present appellant/accused for kidnapping Hemant Sharma and demanding a ransom, which is an offence punishable u/s 364-A of I.P.C. and sentencing him to suffer life imprisonment with a fine of Rs. 5,000/- (Rs. Five thousand only) and in default to suffer additional two years'' rigorous imprisonment. The facts, in short, just for deciding the case are that on 28th May 2000, Hemant Sharma went to visit his elder uncle Rambharose Sharma at Bhind. On 1st June 2000, he was returning back to his residence at Gwalior alongwith Jaijeet Dixit and Karu on a motorcycle via route Ambah-Porsa. It is alleged that in the mid-way at village Dhora, he was taken away on a motorcycle by Jaijeet Dixit in the forest where the abductee for demand and recovery of ransom, was handed over to accused Punjab Singh and his companions (Dacoit Gang). A report of missing was lodged by his mother Prabha Sharma to police personnel posted at Gwalior. The F.I.R. was lodged on the report of missing person and Crime No. 225/2000 was registered against the accused. The investigation was set in motion. The letters sent by the accused for making ransom demand were seized from Smt. Prabha Sharma. Absconded accused Punjab Singh (appellant) was arrested and thereafter the supplementary charge-sheet was filed before the criminal court. On committal, the subsequent sessions trial against the present accused/appellant was commenced. After recording evidence, the learned trial Judge recorded conviction against the accused for kidnapping Hemant Sharma which is an offence punishable u/s 364-A of I.P.C. and sentenced him for life, hence this appeal is filed.

The contention of the learned counsel appearing for the appellant 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 Smt. Prabha Sharma (PW-1), mother of the kidnapee/complainant, Hemant Sharma (PW-3), the kidnapee, Smt. Jamuna Devi (PW-2), Umesh Singh Bhadoria (PW-5), Head Constable, Gendalal (PW-6), M.L. Dhondi (PW-7), the Investigating Officer and defence witnesses, namely, Motilal (DW-1) and Suresh Singh (DW-2). It is argued that the persecution case rests only on the testimony of interested witnesses that too to some extent. It is submitted that some of the accused who were arrested earlier, after trial, stood acquitted. The accused/appellant was arrested at later stage. He was tried in a separate trial and convicted. The accused is innocent and he is falsely implicated in the present case. Therefore, as per learned counsel, the prosecution by adducing the evidence of interested witnesses was not able to justify its case beyond reasonable doubt. 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.

Per contra, the learned Public Prosecutor appearing on behalf of the respondent/State contended that the prosecution succeeded to prove the guilt against accused/appellant by adducing evidence and there is no infirmity or illegality committed by the trial court in awarding conviction and sentence against the accused. It is also contended that the abductee was in the custody of the gang of dacoits for a longer period, therefore, the abductee-witness has rightly identified the culprit in court-identification. Latches on the part of investigation in not conducting the identification parade in case of accused, who was arrested after lapse of sufficient period will not affect the prosecution case. Hence, it is prayed that by dismissing the appeal, the judgment of the trial court 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 other material 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 364-A 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 organization 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. (i) by force or by compulsion; and/or (ii) 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 (AIR 2004 SC 4865), same aspect of the matter has been considered by the Apex court in the following terms:-

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 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. Strong reliance was placed on a decision of the Delhi High Court in Netra Pal v. The State (NCT of Delhi) (2001 Cri.LJ 1669) 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.

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 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 seven witnesses. Hemant Kumar Sharma (PW-3) the abductee deposed that on 28th May 2000 he came from Gwalior to Bhind for visiting his elder uncle Rambharose Sharma. While he was returning back to Gwalior, two persons namely, Jaijeet Singh and Karu met him on a motorcycle at bus-stand crossing. On their request, he went with them on a motorcycle. As they reached at village Dhore, accused Karu said that the vehicle requires some repairing due to its mechanical problem. He then step down from the motorcycle and thereafter accused Karu leaving him alone went with some other persons. After sometime, accused Karu and 7-8 unknown miscreants reached the spot and compelled him by force to go with them in the forest and thus caused his abduction. On 1st June 2000, Punjab Singh gang reached in the forest where the abductee was detained and those miscreants handed over him to Punjab Singh''s gang. Punjab Singh''s gang carried him to another place in the forest after crossing Chambal River. He identified the accused Punjab Singh in dock because he spent near about three months with him. He further submits that the dacoits compelled him to write down a letter (Ex. P/1) and some part of the letter was written by him. Smt. Prabha Sharma (PW-1) mother of the abductee deposed that her son Hemant (PW-3) went to Bhind to visit his elder uncle Rambharose Sharma, brother of her husband (Jeth). As her son did not return for more than 5-6 days, she went in search of her son to Bhind at the residence of Rambharose, who told that her son returned back to Gwalior prior to 8 days ago. After her return back, she went to police station Bahodapur for informing the incident to police. Police Bahodapur advised her to lodge report at the place where the incident happened i.e. in District Gwalior. The report of missing person was lodged. Then, a letter (Ex. P/1) with subsequent letters was received from accused Punjab Singh''s gang. Smt. Jamuna Devi (PW-2) wife of Rambharose Sharma deposed that two years ago, son of Prabha Sharma visited her residence at Bhind and returned back on the same day. After 4-5 days later, Smt. Prabha Sharma visited her residence for inquiry of her son (abductee).

Karun Kumar Shukla (PW-4) Head Constable deposed that he was posted in the office of CID AD Bhind. He stated that as per the record kept in the office of Deputy Inspector General Chambal Range by an order No. CR/Reader/Reward/142/98 dared 5th August 1998, the Deputy Inspector General Chambal Range declared Award of Rs. 10,000/- for making arrest of accused Punjab Singh. Copy of the Reward order is Ex. P/3.

Umesh Singh Bhadoria (PW-5) deposed that on 11th June 2000 he was posted in P.S., Dehat Bhind. On that day Smt. Prabha Sharma lodged the FIR to the effect that some unknown miscreants kidnapped his son Hemant. He then wrote the FIR and registered the Crime No. 225/2000 for offence u/s 364-A of I.P.C. against unknown miscreants.

M.L. Dodhi (PW-7) deposed that on 11th June 2000 he was posted in the Police Station Dehat Bhind. On that day, he took over the investigation in Crime No. 225/2000 and recorded case diary statements of Smt. Prabha Sharma and Smt. Jamuna Devi and on production by Smt. Prabha Sharma, two Inland letters (Ex. P/1 and Ex. P/4) were seized by seizure memo Ex. P/5.

Defence witnesses Motilal (DW-1) and Suresh Singh (DW-2) residents of village Mahewa, Police Station Maholi district Sitapur deposed that accused Punjab Singh was a resident of village Mahewa Police Station Maholi district Sitapur and these witnesses with their family were residing in the same village. They deposed that in the month of October, police Bhind arrested accused Punjab Singh and carried him to Bhind and at present Punjab Singh is confined in Sub-jail Bhind. Another defence witness Sewaram Singh (DW-3) deposed that he and Punjab Singh were detained in Sub Jail Bhind. One day Hemant Sharma visited accused Punjab Singh and demanded Rs. 20,000/- for turning hostile before the trial court but accused Punjab Singh showed his inability to satisfy his demand. Prima facie the evidence of the defence witnesses above do not inspire confidence to reject entire prosecution evidence.

Truly, all prosecution witnesses are totally independent and they have no enmity with the accused Punjab Singh. There is nothing on record to doubt their credibility. It also appears from the evidence that the abductors Jaijeet Dixit and Karu and others who were tried in early stage of trial were acquitted because the prosecution witnesses did not support the case against those accused. In subsequent trial of accused Punjab Singh, all prosecution witnesses supported the case that after kidnap of Hemant Sharma by other accused they carried the kidnapee in the forest and second day the kidnapee was handed over to Punjab Singh''s gang for recovery of ransom. The kidnapee remained in custody for near about three months. During detention period, the letters for demand of ransom amount were sent to his mother Smt. Prabha Sharma. At later stage, under police pressure, the dacoit gang released the kidnappe from their custody. The abductee Hemant Sharma also identified the accused Punjab Singh in the court.

In Atmaram and Others Vs. State of Madhya Pradesh, at page 745 the Hon. Apex Court held:-

It is true that in the present case, some other witnesses have turned hostile and have not fully supported the case of the prosecution, but that by itself would not be a circumstance for the Court to reject the statements of PW1 and PW2, who are reliable and worthy of credence and more particularly, when their presence at the place of occurrence has been established beyond reasonable doubt.

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 on record that on the date of incident Hemant Sharma was abducted for ransom. The demand was clearly conveyed to victim''s mother by Inland letter (Ex. P/1). It also appeared from statement of victim Hemant Kumar Sharma (PW-3) that he was released from custody of Punjab Singh under the grave pressure of police. The abductee remained in the company of the accused for 99 days and during the time, he well observed the action of accused so there could not be any mistaken identification on his part.

The next contention of the learned counsel for the accused/appellant is that a report (Ex. P/10) of the incident was lodged by complainant Smt. Prabha Sharma that her son Hemant was abducted by some unknown miscreants and therefore, false implication of the accused prima facie appears. This contention has no force because the abductee well identified the accused as his abductor in the dock. On this point also, the Hon. Apex Court in the case of Mahesh Vs. State of M.P. (2011) 9 SCC 324 has held as under:-

We find that the aforesaid first information report was submitted by PW1 who was not an eyewitness to the incident. Although it has come in evidence that he was informed about the incident by PW2, PW4 and PW5 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, PW1 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 contention 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.

As held above, in the present case the abductee spent a long time in the custody of the accused. Therefore, there should not be any mistaken identification on his part because he had full opportunity of knowing the accused minutely which he proves by identifying the accused/appellant in dock during trial.

Lastly, the appellant/accused contended that other accused involved in crime were after conduction of trial has been acquitted from the charge so the present accused is also entitled to get same treatment and he be also acquitted of the same charge. In the case of Bable @ Gurdeep Singh Vs. State of Chattisgarh Tr.P.S.O.P. Kursipur, the Hon. Apex Court observed:-

We find that the present appellant cannot derive any benefit from the acquittal of the two other accused persons, with which this Court is not concerned as the State has not preferred any appeal against the decision of the High Court. Moreover, the case of the prosecution is not merely based on the dying declaration made by the deceased to PW14 but there also exist other circumstances which support the view in favour of guilt of the appellant, i.e., the disclosure made by the appellant and the consequent recovery of the weapons used in the crime, the statement of Investigating Officer, PW13, the statement of the doctor, PW5, and, in fact, the own version of the accused in relation to the incident. Now considering the evidence as adduced it appears that in trial against the other accused the prosecution could not succeed to prove the guilt against other accused consequently order of acquittal was passed against other accused and the State could not filed the appeal against acquittal of other accused but in case of accused/appellant the evidence adduced clearly proved beyond doubts proved guilt against present accused/appellant.

Thus, in view of the above discussions, our conclusion is that the prosecution in this case has established the guilt of the appellant to the hilt by clinching and satisfactory evidence rendered. The object of abduction was for ransom which was clearly conveyed by victim Hemant Kumar Sharma at the behest of Punjab Singh to his mother by Inland letter (Ex. P/1). It also appeared from statement of victim Hemant Kumar Sharma (PW-3) that the abductee was released from custody of the accused under the grave pressure of police. The abductee remained in the company of the accused for 99 days and during the time, he well observed the action of accused Punjab Singh. 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.

From discussions of the evidence, the essential ingredient to attract the provisions of Section 364-A is very much available here which shows that a demand was made by the accused to his mother 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. In this case, the evidence shows that demand for ransom was raised on abductee and the family of the abductee which was communicated by sending letters. Thus offence u/s 364-A of I.P.C. is proved from the evidence on record. Consequently, the appeal of accused/appellant fails and is hereby dismissed. Let a copy of this judgment be sent to the Superintendent of the jail concerned. The Lower Court''s Record be sent back.