Rajole @ Rajaram vs State of Madhya Pradesh

G.D. Saxena, J.—The aforesaid two appeals arise out of the impugned judgment and order of conviction and sentence dated 3rd October, 2001 recorded in Special Sessions Trial No. 39/2001 by the Special Judge (Dacoity), Bhind (M.P.), convicting present appellants/accused Sattar Khan and Rajole @ Rajaram for kidnapping one Bhikaram, which is an offence punishable u/s 364A of I.P.C. and sentencing them to suffer imprisonment for life with a fine of Rs. 1,000/-, each, and in default to undergo additional six month''s rigorous imprisonment. Since the judgment and order challenged in these appeals is one, they are herewith taken up together for hearing and decided by this common judgment. The facts, in short, just for deciding the case are that the complainant-Bhikaram used to carry out the work of wood-seller. On 20th December 2000, accused Sattar Khan promised the complainant that he would make available the firewoods to him at lowest rate provided the complainant would accompany him to his village. On his assurance, the complainant accompanied him to village Umari in a bus. From Umari, they went to village Mehdaghat. There the complainant and accused Sattar Khan met with accused Rajole, who gave a handwritten note to accused Sattar Khan. On asking by accused Sattar Khan, Bhikaram went on foot to village Katara in U.P. State. In village Katara, accused Sattar Khan contacted with proclaimed dacoit Ram Ratan Singh Gurjar (since absconded) and handed over the complainant to him for extracting the amount of ransom. During stay with gang of dacoits in the forest, the complainant was manhandled by the dacoits for demand of Rs. Three lacs for his release. Shrikrishana, father of abductee Bhikaram in case of missing of his son lodged the report at police station. During investigation, the case-diary statements were recorded. F.I.R. after inquiry was lodged on 2nd January 2001. The investigation was set in motion. The abductee Bhikaram was recovered on 26th January 2001 and accordingly his recovery memo (Ex.P/3) was prepared. His case diary statement was also recorded. Accused were arrested on different dates. After investigation, the charge-sheet was filed before the Special Court, Bhind. 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 the statements of material witnesses are not corresponding with each other and in specific circumstances, report of missing person was lodged against accused Sattar by a witness Shrikrishna (PW-3). No test identification parade during investigation was conducted by the prosecution for identification of arrested accused. During investigation, no letter written by the accused or abductee or proof of delivery of ransom money was recovered. It is argued that the persecution case rests mainly on the testimony of interested witnesses Bhikaram and his father Shrikrishna whose evidence did not support the prosecution version. Therefore, as per learned counsel, the prosecution by evidence of these witnesses could not be able to prove its case beyond reasonable doubts. It is therefore prayed that by allowing the appeals, judgment under challenge may be set aside and the accused- appellants be acquitted of the 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 cogent and reliable evidence and there is no infirmity or illegality committed by the trial court in awarding conviction and sentence against the accused. Hence, it is prayed that by dismissing the appeals, the judgment of the trial court be upheld.

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 cases.

The question for consideration in these appeals is whether the ingredients of offence of kidnapping for ransom are proved by the testimony of abductee and his 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 inter- governmental 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 364A 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.

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.

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

To attract the provisions of Section 364A 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 364A 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 in the present case examined witnesses, namely, Shrikrishna (PW-1), Bhikaram (PW-2), abductee Mahaveer Prasad (PW-6), Sub Inspector, who lodged the report of missing person, P.K. Chaturvedi (PW-8) Sub Inspector who partly conducted investigation of present crime, B.B. Sharma (PW-9), Sub Inspector who also partly investigated the case.

Bhikaram Kushwah (PW-2), is the abductee, who deposed that one year ago from the date of examination before the trial Judge, on the day of incident, accused Sattar Khan met him near temple of Goddess (Mataji) and told him that some firewood is placed in his village which would be available to him if he wished to purchase the same @ Rs. 50/- per quintal. He asked the accused as to where were the woods kept, he replied in his village Umari. Then, he went with accused Sattar to village Umari in a bus. Bus fare was paid by accused Sattar. The accused also borne expenses for his breakfast in village Umari. Thereafter, he alongwith accused Sattar went to village Mehdaghat by a hiring a jeep. In village Mehdaghat, he went to residence of accused Rajole. Accused Rajole wrote a letter and gave it to accused Sattar. Thereafter, he and accused Sattar went to forest where accused Sattar left him at his agricultural field for watching the standing crops. At one side of the place in the forest, 7-8 person having guns surrounded him and abducted. He stated that accused Sattar abducted him for ransom and the dacoits were telling to pay a sum of Rs. 3,00,000/- for setting him free. He was confined for about forty days by the dacoits. The head of the gang was Ram Ratan Singh Gurjar. One day, the dacoits slaughtered the goat and prepared the meat and also drunk liquor. Taking advantage of their drunken state, he could get an opportunity of escaping from the place. On the way, he found a tractor coming from Etawa in which he sat and came to Phoof. At Phoof, he took assistance of Lal Singh, a leader with whom he reached at the police station Phoof where he narrated the whole incident to Superintendent of Police. To some extent, he is declared hostile by the prosecution because he did not identify the other culprits, namely, Santosh, Hakim and Asharam, but he categorically deposed that dacoit Ram Ratan Singh was telling that as soon as the money was received from the complainant, accused Sattar would be given his share. He also admitted that alongwith dacoits, accused Rajole was also present there.

In cross-examination, he admitted that accused Sattar Khan was a tenant of his maternal uncle and on non-payment of monthly rent, his maternal uncle got vacated the rented house from accused Sattar. He also admitted that witness Lal Singh was friend of his maternal uncle but he denied that due to previous rift on vacation of house by his maternal uncle, he had falsely implicated accused Sattar in the present case.

Lal Singh Kushwal (PW-3) deposed that near about 6-7 months ago, Bhikaram after releasing from custody of dacoits came to him. He produced him at police station Bhind. A recovery memo (Ex.P/3) was prepared in his presence.

Shrikrishna (PW-1) in his court statement supported the version of Bhikaram (PW-2) that on 20th December 2000, his son Bhikaram met with accused Sattar. Sattar offered to sell the firewoods kept in his village at reasonable rate. Thereafter, his son after informing to the family went with Sattar Khan to village Umari. He waited for his son for three days. He also went to village Mehdaghat of accused Sattar, but he could not find his son available there nor any clue was gathered by him for his missing son. Thereafter, he lodged the report of his missing son in police station Bhind. After 8 days, he knew that accused Satter was arrested by police. He also came to know that his son is under custody of gang of dacoit Ram Ratan Singh Gurjar. He was declared hostile by prosecution to some extent so far as involvement of other accused is concerned. Jwali (PW-5), grandfather of abductee Bhikaram deposed that at the time of incident, he was with his son Shrikrishna and his family is residing at Bhind. He stated that accused Sattar Khan carried away his grandson who was subsequently handed over to dacoit Ram Ratan Singh Gurjar. Ram Sewak (PW-7) is maternal uncle of Bhikaram (abductee) who fully supported the incident.

P.K. Chaturvedi (PW-8), Sub Inspector of Police Station City Bhind deposed that on 3rd January 2001 he arrested accused Sattar Khan vide arrest memo (Ex.P/6) in relation to Crime No. 3/2001. The witness stated that in custody, accused Sattar informed about receipt of Rs. 1,000/- from another accused Santosh which was expended by him. The memorandum of such information was prepared vide Ex.P/5. He also recorded the case diary statements of witness Ram Sewak, Jwalaprasad etc. He also arrested accused Hakim Singh and Santosh, vide Ex.P/8 and P/9.

Mahavir Prashad (PW-6) deposed that at the relevant time, he was posted as Sub Inspector City Kotwali district Bhind. He wrote the F.I.R. and registered Crime No. 3/2001. B.B. Sharma (PW-9) deposed that on 26th January 2001 in further investigation of Crime No. 3/2000, he had written a memo of recovery of Bhikaram, the abductee with his case-diary statement. On 14th February 2001, he arrested accused Rajole @ Rajaram by arrest memo (Ex.P/11).

As regards the contention put forth by the learned counsel for the appellants that no TIP is conducted in the present case, therefore, the absence of a test identification parade makes the identification of the present accused-appellants in the dock inadmissible or useless and under the circumstances, the appellants deserve to acquittal.

No one would be more interested in naming the real culprits rather than implicate others falsely. In S. N. Dube Vs. N. B. Bhoir and Others, at paragraph 21, in the facts of the case it was held that the infirmity in the identification during trial in the dock in absence of an earlier T.I.P. cannot diminish the evidenciary value of the identification on facts when corroborative evidence from other witnesses and confessions admissible in law was available. The Hon. Apex Court further in the case of Malkhansingh and Others Vs. State of Madhya Pradesh, held as under:-

Identification in Court was substantive evidence while T.I.P. was corroborative evidence for identification in Court, if required. What weight must be attached to the evidence of identification in Court not preceded by a T.I.P. is a matter for the court to examine on facts. Identification in the dock may be doubted where the identifying witness is a total stranger who had just a fleeting glimpse of the person identified or had no particular reason to remember the persons concerned.

It would again be relevant on this point to refer the case of Sheo Shankar Singh Vs. State of Jharkhand and Another, wherein the Hon. Apex court has been pleased to observe:-

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 view of the aforesaid enunciation of the law by Hon. Apex Court, the evidence of identification of an accused in Court by a witness has to be substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in Court. Identification in the dock may be doubted where the identifying witness is a total stranger who had just a fleeting glimpse of the person identified or had no particular reason to remember the persons concerned but where an accused is well known to the prosecution witnesses from before, in that case, it would be meaningless and sheer waste of public time to hold TIP when the victim knows the accused by face and names them while identifying them in Court.

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

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 not seizing letter of demand for recovery of ransom and in non-collecting proof of payment of ransom to abductors would not be in itself sufficient to reject the version given by the prosecution 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.

Now coming back to the case at hand, on perusal of the evidence of the prosecution witnesses, in particular, the victim Bhikaram (PW-2), it goes to show that on 20th December 2000, the victim went with the accused Sattar Khan on the assurance by the accused himself to provide the victim firewoods at reasonable cost but after that both the accused arranged plan for kidnapping and handing over him to the gang of dacoit for recovery of attractive amount of ransom. The accused Rajole wrote a letter and handed over the victim to the gang of dacoits. Thus, accused Sattar and Rajole @ Rajaram under a grave conspiracy abducted the victim Bhikaram for recovery of attractive ransom and an amount was given for handing over the abductee to dacoit Ram Ratan Singh Gurjar. The evidence also indicated that the victim was detained for payment of ransom amount and amount of Rs. 3,00,000/- was expected by the gang of dacoits for his release. Luckily the abductee got rid of the clutches after taking advantage of their drunken stage and in that situation, no letter written by the accused or abductee or proof of delivery of ransom money could be procured/seized.

The evidence of the victim therefore 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 victim 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. Whether it was actually paid or not is irrelevant. The factual scenario of the planned logistics of the abduction after premeditation and design with smoothness of execution of a well planned operation were all such factors which are found relevant and basis by the learned trial court for holding the appellants guilty for the alleged offence. This Court, therefore, finds no error in the conviction of the appellants u/s 364A in its entirety. Accordingly, the appeals preferred by the appellants/accused are hereby dismissed