Runu Urang VsState of Tripura

Deepak Gupta, C.J.—This appeal by the convict is directed against the judgment dated 23.09.2003 delivered by the learned Sessions Judge, North Tripura, Kailashahar in ST 43 (NT/K) of 2003 whereby he convicted the appellant of having committed an offence punishable u/s 364-A of the Indian Penal Code (for short I.P.C.) and sentenced him to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo further Rigorous Imprisonment for 6(six) months. Briefly stated the prosecution case is that on 17.10.2001 at about 04-30 am, two persons including the appellant Runu Urang came to the house of one Rabindra Debbarma, S/O. Late Barindra Debbarma. They were armed with gun and were wearing some uniform. Rabindra Debbarma was told that since he had not paid subscription, he had to accompany them. He was taken away at gun point from his house. The first information regarding this incident was given by an unidentified person, who claimed to be the manager of the tea estate in question, but he refused to disclose his identity nor gave any details of the incident to the police except to state that Rabindra Debbarma had been kidnapped from the tea estate by some unidentified extremists.

A more detailed written complaint was made by P.W.9, Smt. Malani Debbarma, daughter of the kidnapped person and this is Exbt.-3. In this complaint she stated that the appellant Runu Urang along with one other person had come to the Khatoon tea estate and forcibly kidnapped her father at gun point. She later on saw that there were 7/8 other unidentified extremists also along with these two persons. She later learnt from other villagers that one Brajendra Debbarma had also been kidnapped by the same groups of extremists from his house at Samrurchhera. This complaint was purportedly received in the police station at 0730 hours on 17.10.2001 and thereafter the police started investigation in the matter and formal FIR was lodged on the same day at 11-30 am.

Another admitted fact is that Brajendra Debbarma somehow managed to escape from the clutches of the extremists and returned to his home at about 2 pm on the same day. The police carried out the investigation and after investigation charge-sheet was filed in the Court and the accused Runu Urang, who was the only identified extremist, was charged with having committed an offence punishable u/s 364-A of the IPC. He has been found guilty and sentenced as aforesaid. Hence, this appeal by the accused appellant.

Heard Mr. R. Datta, learned counsel appearing for the appellant and Mr. R.C. Debnath, learned Additional public prosecutor for the State.

It has been contended before us by Mr. Datta that the statement of P.W.9, Smt. Malani Debbarma, daughter of the kidnapped person, is contrary to what has been stated in the original statement. He further urged that there are material contradictions between the statement of P.W.9 and P.W.4, Sri Brajendra Debbarma and, therefore, the judgment of conviction should be set aside. In the alternative he submits" that even if all the facts are accepted to be correct then also no offence u/s 364-A of the I.P.C. is made out and at best an offence punishable u/s 365 of the I.P.C. is made out.

As far as the first point is concerned we are not unable to accept the contention of the learned counsel for the appellant. The daughter Malani Debbarma when she was examined as P.W.-9 has in no uncertain and unambiguous terms stated that amongst the miscreants, who kidnapped her father, was the appellant Runu Urang. The fact of the matter is that till date the kidnapped person has not come back to his family. Therefore, somebody did kidnap him. The only question is that whether Runu Urang has been falsely implicated or not.

There is not even a suggestion put to the witness that there was any enmity between her family and that of Runu Urang why would a person falsely implicate a person with whom he or she has no enmity. Furthermore the name of Runu Urang finds mention in the written complaint which was received in the police station on 7.30 a.m. on the date of the incident i.e. within three hours of the incident. Much stress has been raised by Mr. R. Datta, learned counsel appearing for the appellant on the fact that in Court P.W.-9 stated that when she made the complaint to the police and her statement was recorded by the Darogababu, Brajendra Debbarma and Dilip Debbarma were present. Mr. R. Datta, learned counsel submits that this could happen only if the Brajendra Debbarma had not been kidnapped or in the alternative the complaint was recorded after he returned at 2 pm. and was ante timed. True it is that there is some difference in the statement of P.W.-9 in the Court. However, while assessing her statement we cannot lose sight of the fact that this witness may not have been totally aware about the difference between the written complaint and the statement, which the police officials recorded u/s 161 of the Cr.P.C. If her statement is read in its entirety, it is apparent that she is mixing up the statement made to the police u/s 161 of Cr.P.C. with the first complaint.

We also find that Brajendra Debbarma has also named the appellant Runu Urang as one of the persons, who kidnapped him and there is nothing to shatter his statement. The statements of P.W.-4 and P.W.-9 prove beyond reasonable doubt that the P.W.-4, Brajendra Debbarma and Rabindra Debbarma were kidnapped by a group of extremists of whom the appellant Runu Urang was one of the members. It is also apparent that he was one of the leading members since he was with another person who knocked at the house of Rabindra Debbarma.

Coming to the second question as to whether an offence u/s 364A of I.P.C. is made out. It would be pertinent to refer to section 364A of I.P.C. which reads as follows:

[364A. 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 or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.]

A bare perusal of the section clearly shows that the legislature decided to make certain forms of kidnapping a more serious offence. To fall within the ambit of Section 364A not only should it be proved that kidnapping/abduction has taken place but furthermore the prosecution must prove that the person who carried out the kidnapping or abduction had threatened to cause bodily injury or death to the kidnapped or abducted person; or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt shall be caused to him; or has actually caused death or hurt such a person; an offence u/s can also been made out when the abductor tries to compel the government or any governmental organization to do or abstain from doing any act or thing, that it is to say to compel the Government or some person in authority to meet the demands of the kidnapper whether they are in the negative form or positive form. Lastly, an offence u/s 364A of I.P.C. is made out in case there is a demand to pay a ransom. Such an offence of kidnapping/abduction would be punishable with death or imprisonment for life.

In the present case none of the witnesses have stated that Runu Urang threatened to cause the death or hurt of Rabindra Debbarma and Brajendra Debbarma. In fact one of the abducted persons is not only alive but appeared in the witness box and has not stated a word in this regard. No doubt, Runu Urang and his accompaniers were armed with weapons but that by itself would not be sufficient to hold that this conduct gave rise to a reasonable apprehension that the kidnapped person would be put to death. Therefore, we are of the view that offence made out does not fall u/s 364A of I.P.C. and in fact not even u/s 364 I.P.C. but is an offence falling within the ambit of Section 365 of I.P.C., for which maximum punishment provided for is seven years imprisonment. The appellant has already spent nine years four months in the custody. Therefore, we partly allow the appeal by converting the conviction of the accused from that u/s 364A to that u/s 365 of the I.P.C. Since he has already undergone more than the maximum imprisonment provided he is directed to be released forthwith.

Send down the LCRs forthwith.