Sambhar Singh vs State Of Madhya Pradesh

Sheel Nagu, J

The present appeal preferred u/s. 374(2) Cr.P.C. assails the judgment dated 28th June, 2008 passed in SST No. 7/2005 rendered by Special Judge, Datia (M.P.) convicting and sentencing the appellant for offence punishable u/S. 364-A IPC and S. 13 of the MPDVPK Act to life imprisonment alongiwth fine of Rs. 25,000/- with default sentence of further RI of one year.

The bare facts giving rise to the present case are that on 7/11/2004 at about 4 pm complainant Rajendra Prakash Chaturvedi alongwith his brother Radhaballabh and nephew Chhotu @ Bhura @ Radhakishan Chaturvedi (Abductee) was cutting grass and making bundles of the cutting grass at their agricultural fields. Abductee Chhotu went to the nearby water tank to drink water when two miscreants wielding firearms came to the spot and caught hold of the abductee. Close on heels, two more miscreants armed with weapons followed by one more miscreant who was also armed with weapon came to the spot and started forcibly taking away Bhura. When Radhaballabh PW-1 tried to intervene, the miscreants fired in the air which frightened Radhaballabh who gave up the pursuit. However, Rajendra Prakash and Radhaballabh followed the abductors from a safe distance. However, the pursuit was unsuccessful as miscreants alongwith abductee disappeared into the sugarcane field. The complainant Rajendra thereafter reported the matter to the police which led to lodging of Dehati Nalish Ex.P/1 followed by registration of Crime No. 150/04 u/S. 364-A IPC and Sec. 11/13 of the MPDVPK Act. FIR was lodged vide P/6. During investigation, recovery of certain empty cartridges were made vide Ex.P/4. However, on 29/11/2004 during encounter with the police, the abductors released the abductee from captivity and fled. Charge-sheet was filed on 24/3/2005. Later the appellant was arrested. Thereafter on 13/1/2006 other co-accused Umrao and Hemraj were declared absconders whereas the other co-accused Hazrat Rawat & Ramesh Luhar were reported killed in the police encounter.

The appellant thus was left alone to be tried, who abjured guilt and sought trial by pleading that he has been falsely implicated in the case.

The prosecution in all produced seven witnesses namely Radhaballabh PW-1, Rajendra Prasad PW-2, Radhakrishna Chatruvedi @ Bhura PW-3, Dharmnarayan Chaturvedi PW-4, Ravindra Singh PW-5, Rajkumar Sharma PW-6 and Mragendra Chaturvedi PW-7 and also exhibited documents. However the defence did not choose to produce any witness or produce documents.

The trial court returned finding of guilt and convicted and sentenced the appellant as aforesaid.

Learned counsel for the appellant primarily raised the following grounds in support of challenge to the impugned judgment of conviction and sentence:-

(1) In the absence of any demand of ransom money by the appellant from any person, the foundational ingredients of offence punishable u/S. 364-A IPC are not made out.

(2) No Test Identification Parade was conducted to identify appellant who was identified only by way of dock-identification by PW-2 Rajendra Prasad who was an eye-witness to the act of abduction of abductee Chhotu.

(3) The prosecution did not prove recovery of any weapon from appellant thereby belying the story of prosecution that abductors were carrying firearms.

(4) There is no entry of police encounter in the case-diary thereby further belying the story of prosecution of police encounter leading to release of the abductee.

Learned counsel for the appellant after taking us through the material available on record in shape of oral and documentary evidence of substantive and corroborative nature and the finding recorded by the learned trial Judge, does not dispute that there is sufficient evidence on record to establish that Chhotu was abducted and confined. However, learned counsel for the appellant submits that there is no further evidence to establish that abductee was ever subjected to any threat of death or hurt or any reasonable apprehension of death or hurt and also that there is no evidence to prove the allegation of demand, payment and receipt of ransom amount.

On the other hand, learned counsel for the State submits by referring to para 11 of the impugned judgment which inter alia contains testimony of the abductee Radhakrishna @ Chhotu PW-3 that demand for ransom money was made. In this respect para 3 of the testimony of PW-3 is pointed out to submit that demand of ransom money of Rs. 20 Lakh was made though a letter which PW-3 was made to write in captivity by subjecting him to coercion, undue influence and physical assault. It is pointed out that PW-3 further testified that the letter written by him, was handed over to a person whose face was covered. Attention of this court is also invited by learned counsel for the State to para 6 of deposition of PW-3 that he was made to write the letter of demanding ransom money after elapse of 6-7 days of captivity. In this factual and evidential background, State counsel defends the impugned judgment of conviction and sentence and prays for dismissal of the present appeal.

From the statements of PW-1 Radhaballabh, PW-2 Rajendra Prasad who were eye-witnesses and testimony of PW-3, the abductee and further testimony of PW-4 Dharmnarayan Chaturvedi, the allegations of abduction of the abductee Radhakrishna PW-3 by 5 miscreants stand established beyond all reasonable doubt as the said 4 witnesses in their examination-in-chief have stated in unison that 5 miscreants had come to the spot where they were cutting grass and forcibly took away the abductee in their presence.

9.1 More so, PW-2 Rajendra, eye-witness identified the appellant as one of the 5 miscreants by way of dock identification vide para 5 of his testimony.

9.2 Thus so far as factum of abduction of the abductee PW-3 Radhakrishna by the appellant and wrongfully confining him for a number of days before releasing him on 29/10/2004 as per Baramdagi Panchnama Ex.P/4, the evidence of kidnapping/abducting the abductee with an intent to wrongfully confine him, has been proved beyond all reasonable doubt.

Coming to the main ground raised by learned counsel for appellant that absence of proof regarding demand of ransom money, it is seen from the record that PW-3 the abductee in his testimony in para 3 has though stated that by being subjected to un-due influence, coercion and assault he was made to write a letter demanding money of Rs. 20 lakh and the said letter was handed over to another person for forward communication but in para 6 of his testimony PW-3 abductee also deposed that he had disclosed the fact of ransom letter written by him to the police during investigation. However, the prosecution did not recover any such letter demanding ransom from any person. Further none of the PWs stated that any ransom money was demanded or any letter for demand of ransom money was received by anyone or that any ransom money was paid.

10.1 The only evidence that has come on record regarding demand of ransom money is the testimony of PW-3 Chhotu where he though testified that he had written a letter containing demand for ransom and the same was handed over by the miscreants to a person for forward transmission but there is no foundational material in the prosecution story to support this revelation made by the abductee. Thus, the disclosure of demand of ransom money in the testimony of PW-3 abductee is an improvement in the prosecution story, which renders the prosecution case weak.

10.2 The prosecution story appears to be an open and shut case of abduction for wrongfully confining the abductee with no further material of demand of ransom money.

10.3 For ready reference and convenience, Secs 364-A & 365 IPC both are reproduced below:-

"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.]

Kidnapping or abducting with intent secretly and wrongfully to confine person.- Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully con-fined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

Bare reading of the contents of Sec. 364-A IPC reveals that the said penal provision of this section gets attracted when the following two contingencies co-exist:-

(a) Kidnapping/abduction of any person with the aid of threat to cause death or hurt to the abductee and;

(b) In order to compel inter alia any person (not the abductee or the kidnapped person ) to do or abstain from doing any act or to pay the ransom.

11.1 Analyzing Section 364-A reveals that offence punishable therein is made out when there is an act of abduction/kidnapping by causing fear or death or hurt to achieve the ultimate goal of compelling third person to do or prevent from doing any act or to pay ransom.

11.2 The act of kidnapping/abduction is the cause for achieving the goal for receiving ransom. Unless both these essential ingredients are proved, the penal provision of Sec. 364-A IPC cannot be attracted.

11.3 The Apex Court in the case of Malleshi Vs. State of Karnataka (AIR 2004 SC 4865) and Akram Khan Vs. State of West Bengal (AIR 2012 SC 308) has succinctly explained the above said penal provision after analyzing the same in depth.

The relevant extract is reproduce below :-

(1) Malleshi Vs. State of Karnataka; AIR 2004 SC 4865 (Para: 12)

"12. 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 Vs. The State (NCT of Delhi) (2001 Crl. L.J. 1669) to contend that since the ransom demand was not conveyed to the father of PW 2, the intention to demand was not fulfilled."

(2) Akram Khan Vs. State of West Bengal; AIR 2012 SC 308 (Para:16)

"16. In Malleshi Vs. State of Karnataka, (2004) 8 SCC 95 : (AIR 2004 SC 4865 : 2004 AIR SCW 5585), while considering the ingredients of Section 364 A IPC, this Court held as under:

"12. To attract the provisions of Sectoin 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....."

11.4 In the instant case, offence of kidnapping/abduction by exercise of fear or death or hurt is made out beyond all reasonable doubts against the appellant. However, there is no evidence whatsoever about demand of ransom. The evidence in shape of statement of the abductee PW-3 for writing the ransom letter has come in his testimony for the first time before the trial court and there is nothing on record that the original case of the prosecution which was prepared and presented before the trial court in shape of charge-sheet did contain any such material to even prima facie establish the factum of demand of ransom money. There is also no evidence either in testimony of any of PWs or the abductee in regard to demand, payment or receipt of the amount of ransom. Obviously, the version of the PW-3 regarding ransom letter is an improvement over the prosecution story and thus cannot be believed. The only ingredient of "abduction for being confined in the ravines" has been established qua the appellant.

11.5 Consequently, in the absence of proof of abductee being subjected to threat or reasonable apprehension of threat of death or hurt and there being total absence of evidence to support the factum of demand for payment of ransom money, this Court has no hesitation to hold that the appellant cannot be held guilty for the offence punishable u/s 364A IPC.

11.6 However, since the prosecution is successful in proving that Chhotu was abducted by a gang of persons including the appellant and he was secretly and wrongfully confined for a considerable period of time, the essential ingredients of Section 365 IPC appear to be made out and the appellant deserves to be convicted for the offence punishable u/s 365 IPC, which provides maximum punishment of 7 years R.I. The appellant is reported to have competed more than 7 years of imprisonment.

Accordingly, the present appeal stands allowed to the following extent :-

(i) The conviction and sentence of the appellant u/s 364-A IPC and Sec. 13 of the MPDVPK Act rendered by the trial court in SST No. 7/2005 is set aside.

(ii) Instead, the appellant is held guilty of the offence punishable u/S. 365 IPC and is directed to suffer sentence of 7 years R.I. alongwith fine which is reduced to Rs. 5,000/- with default punishment of 2 months R.I.

(iii) The excess amount of fine if deposited by the appellant pursuant to the judgment of trial court be refunded to him.

(iv) Since the appellant has already suffered the modified sentence awarded by the judgment of this court, he be released forthwith if not wanted in any other criminal case/offence.