Sonu Kumar & Others vs State Of Uttarakhand

Ravindra Maithani, J

Since common question of law and facts are involved in all these appeals, they are taken up together and decided by this common judgment.

Instant appeals are preferred against the judgment and order 27.05.2013, passed in Sessions Trial No. 215 of 2010, State Vs. Surendra Kumar and

others, by the court of Additional District and Sessions Judge, Dehradun. By it, the appellants have been convicted under Section 363 read with 34 and

364A read with 34 IPC and sentenced as hereunder:-

(i) Under Section 363 IPC- To undergo rigorous imprisonment for a period of five years with a fine of Rs.1,000/-. In default of payment of fine, to

undergo imprisonment for further period of one year.

(ii) Under Section 364A IPC- Imprisonment for life with a fine of Rs.2,000/-a period of two years.

Both the sentence shall run concurrently.

Shorn of unnecessary details, according to the prosecution on 26.07.2010, PW1 Hemlata Singh, the informant alongwith her son Vishvajeet aged 5

years (the victim) had gone to bring her elder son from the school. The co-convict Surendra Kumar was her driver. The victim alongwith the driver

was in the car. PW1 Hemlata Singh had gone to purchase some articles in the shop. When she returned, she did not find her car and the victim. She

immediately telephoned various persons including PW3 Vikshit Goyal, one of her acquaintances. When the victim could not be located, an FIR (Ex.

A1) was lodged. Based on which, Case Crime No. 295 of 2010, under Section 363 IPC was lodged against the co-convict Surendra Kumar and the

investigation proceeded. The mobile number of the appellant driver was put under surveillance. On 27.07.2010, the mobile phone of the co-convict

Surendra Kumar was located in Nainital. Police team had also left for Nainital. The car of PW1, the informant was located at Bhowali car parking. It

was put under surveillance. On 27.07.2010, at about 5:30 p.m., the co-convict Surendra Kumar approached the car, opened it and sat inside it. He was

arrested.

It is further the case of the prosecution that two mobile phones were recovered from the co-convict Surendra Kumar. Upon interrogation, the co-

convict Surendra Kumar revealed that he had kidnapped the victim, with the help of the appellants Sonu Kumar, Sudama and Lokendra @ Laddan

and he is confined in Room No.17 of a hotel in Nainital. The police team thereafter, proceeded to Nainital. They knocked at the hotel room and

recovered the victim from the custody of the appellants Sonu Kumar and Sudama. From the possession of the appellant Sonu Kumar, a country-made

pistol and a cartridge were recovered. It was told by the appellants at that time that the applicant Lokendra alias Laddan was guarding outside the

hotel room and when he suspected fear, he ran away. After investigation, the Investigating Officer (“IOâ€) filed chargesheet against the appellants

for the offence punishable under Section 363, 364A IPC and cognizance was taken. The appellants were charged for the offences punishable under

Section 363 read with 34 IPC and Section 364A read with 34 IPC, to which, they denied and claimed trial.

In order to prove its case, the prosecution examined, nine witnesses, namely, PW1 Hemlata Singh, PW2 Vishvajeet, PW3 Vikshit Goyal, PW4

Mukesh Tyagi, PW5 Bhupendra Singh, PW6 Pooran Singh, PW7 Vimal Chandra Tamta, PW8 R.K. Juyal and PW9 Constable, Anil Kumar.

After the prosecution evidence, the appellants were examined under Section 313 of the Code of Criminal Procedure, 1973. According to them, they

have been falsely implicated and the witnesses have falsely deposed. The co-convict Surendra Kumar had admitted that he was driver of PW1

Hemlata Singh. He was not paid his salary, therefore, he had gone to his village.

After hearing the parties, by the impugned judgment and order, the appellants have been convicted and sentenced as stated hereinbefore.

Learned counsel appearing for the appellant Sonu Kumar would submit that even if the entire prosecution case is accepted in its entirety, it does not

make out an offence under Section 364A IPC. She would submit that mere kidnapping is not punishable under Section 364A IPC. In order to attract

the provisions of Section 364A IPC, it has also to be shown that the accused threatens to cause death or hurt to the kidnapped person, or by his

conduct gives rise to reasonable apprehension that such person may be put to death or hurt. It is argued that there is no evidence in the instant case

that any call for ransom was ever received by the PW1 Hemlata Singh or any threat to cause death or threat to life was extended by any of the

appellants. She would submit that the statements of PW1 Hemlata Singh and PW2 Vishvajeet on this point is not reliable because both these

witnesses had not told it to the IO that the appellants or any of them had ever extended any threat to them or their conduct gave rise to any

apprehension that the victim would be put to death or hurt. She would refer to the statements of PW1 Hemlata Singh, PW2 Vishvajeet and PW8 R.K.

Juyal, the IO. While arguing on the non-applicability of Section 364 A IPC, learned counsel for the appellant Sonu has referred to the principles of law,

as laid down in the case of Shaik Ahmed Vs. State of Telangana, (2021) 9 SCC 59.

In the case of Shaik Ahmed (supra), the Hon’ble Supreme Court after discussing the law on the point on the subject observed as follows:-

“33. After noticing the statutory provision of Section 364-A and the law laid down by this Court in the abovenoted cases, we conclude that the

essential ingredients to convict an accused under Section 364-A which are required to be proved by the prosecution are as follows:

(i) Kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction; and

(ii) 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;

(iii) causes hurt or death to such person in order to compel the Government or any foreign State or any Governmental organisation or any other person

to do or abstain from doing any act or to pay a ransom.

Thus, after establishing first condition, one more condition has to be fulfilled since after first condition, word used is “andâ€. Thus, in addition to first

condition either Condition (ii) or (iii) has to be proved, failing which conviction under Section 364-A cannot be sustained.â€​

In the case of Shaik Ahmed (supra), the Hon’ble Supreme Court also considered the law, as laid down in the case of Arvind Singh Vs. State

of Maharashtra, (2021) 11 SCC 1. In that case, an eight years old boy was kidnapped and he was subsequently killed. His dead body was recovered.

In that case, argument was raised that the child was kidnapped for ransom but there was no intention to take the life of a child. Therefore, offence

under Section 364 A IPC is not made out. In paras 93 and 94 of the judgment in the case of Arvind Singh (supra), the Hon’ble Supreme Court,

observed as follows:-

“93. Section 364-A IPC has three ingredients relevant to the present appeals, one, the fact of kidnapping or abduction, second, threatening to

cause death or hurt, and last, the conduct giving rise to reasonable apprehension that such person may be put to death or hurt.

The kidnapping of an 8-year-old child was unequivocally for ransom. The kidnapping of a victim of such a tender age for ransom has inherent

threat to cause death as that alone will force the relatives of such victim to pay ransom. Since the act of kidnapping of a child for ransom has inherent

threat to cause death, therefore, the accused have been rightly convicted for an offence under Section 364-A read with Section 34 IPC. The threat

will remain a mere threat, if the victim returns unhurt. In the present case, the victim has been done to death. The threat had become a reality. There

is no reason to take different view than that the view taken by the learned Sessions Judge as well by the High Court.â€​

In the case of Shaik Ahmed (supra), while considering the observations made in the case of Arvind Singh (supra), the Hon’ble Supreme

Court observed “the above observation made by the three-Judge Bench in Arvind Singh case has to be read in context of the facts of

the case which was for consideration before this Court. No ratio has been laid down in para 94 that when an eight-year-old child (or a

child of a tender age) is kidnapped/abducted for ransom there is inherent threat to cause death and the second condition as noted

above i.e. threatens to cause death or hurt to such person, is not to be proved. The observations cannot be read to mean that in a case

of kidnapping or abduction of an eight-year-old child (or child of a tender age), presumption in law shall arise that kidnapping or

abduction has been done to cause hurt or death. Each case has to be decided on its own facts.â€​

In the case of Neeraj Sharma Vs. State of Chhatisgarh, (2024) 3 SCC 125 also, the Hon’ble Supreme Court followed the principles of law, as

laid down in the case of Shaik Ahmed (supra) and observed that “for making out a case under Section 364-A, the first condition i.e.

kidnapping or abduction must be coupled with either the second or the third condition as held by the Hon’ble Supreme Court in the

case of Shaik Ahmed (supra).â€​

On behalf of the appellant Lokendra alias Laddan, learned counsel would adopt the arguments made on behalf of the appellant Sonu Kumar. In

addition, it is argued that appellant is not named in the FIR.

On behalf of the appellants Sudama also, the arguments made by learned counsel for the co-convict Sonu Kumar have been adopted. It is argued

that it is not a case under Section 364 A IPC. It is a mere case of kidnapping.

Learned State counsel would submit that the prosecution has been able to prove the charge against the appellants. He would refer to the

statements of PW1 Hemlata Singh and PW2 Vishvajeet to argue that the victim in his statement before the court has stated that he was scared by the

conduct of the appellants. He had cried also. There have been ransom calls. It is argued that admittedly, PW1 Hemlata Singh and PW2 Vishvajeet

have not told it to the IO that any ransom call was made or any threat was extended. It is argued that it does not, in any manner, shakes the credibility

of the PW1 Hemlata Singh and PW2 Vishvajeet. It may at the most be an omission on the part of the IO. The IO might not have asked those

questions. It is argued that demand of ransom is enough to prove the charge under Section 364 A IPC even if such demand is not communicated.

PW1 Hemlata Singh is the informant. She has proved the FIR. According to her, on 26.07.2010, she had gone to bring her elder son back from the

school. Initially, she had gone to purchase cake for birthday celebration of the victim. But when the victim insisted for purchasing some other articles,

she sent the victim back with the co-convict Surendra Kumar in their car who was their driver. When she came back from the shop, she did not find

the car. She called the co-convict Surendra Kumar. Initially, he told that he is in the back side of the college. But thereafter, he did not come and

stopped replying the phone calls made by this witness. Meanwhile, according to this witness, her elder son returned from school. They searched out

for the co-convict Surendra Kumar and the victim. She was scared. She called a family friend and lodged a report. She proved the FIR, Ex.A1.

According to PW1 Hemlata Singh, on the same day at about 9:00-9:15 A.M., she received a telephone call from the mobile phone of the co-convict

Surendra Kumar. The caller had threatened her to kill the victim. She could then also identify the voice of the co-convict Surender Kumar, who was

prompting the caller to speak. PW1 Hemlata Singh, further states that on 27.07.2010, she received another call and Rs.50 Lakh as ransom was

demanded from her. She expressed her inability to pay such amount as her husband was not at home. This witness has also stated about another call

that were made and her conversion with the co-convict Surendra Kumar, the driver. Finally, according to this witness, on 27.07.2010 at 5:00-5:15 in

the evening, she received a call that the victim has been recovered.

PW2 Vishvajeet Singh, is the victim. He has supported the statement of PW1 Hemlata Singh. According to him, when he was in the car, the

driver started the car and moved. He questioned, as to where is he proceeding. According to this witness, the co-convict Surendra Kumar then told it

to him that he would get him skates and they are going towards the another gate and he started moving the vehicle. On the way, other persons also

boarded in the car. They were total four in the car. They also called her mother and told that in case, money is not given, they would kill this witness.

They all reached Nainital in a hotel. They all had their meals in the hotel. They also gave milk to this witness. They also made this witness to call his

mother. In the evening, according to this witness, the co-convict Surendra Kumar had gone to bring the car. Appellant Lokendra alias Laddan had also

gone with him. The appellants Sonu Kumar and Sudama were with him. After about one hour, the police came and recovered him.

PW3 Vikshit Goyal is the family friend of PW1 Hemlata Singh. He has supported the statement of PW1 Hemlata Singh. This witness had also

come to Nainital in search of the victim. According to him, he spotted the car of the informant at Bhowali car parking. A little thereafter, the co-

convict Surendra Kumar approached the car. As soon as he sat in the car, he was arrested. He revealed that the victim is in the hotel alongwith the

appellants Sonu Kumar, Sudama and Lokendra @ Laddan. They reached in the hotel at Nainital and recovered the victim, who was with the

applicants Sudama and Sonu Kumar. This witness has proved the recovery memo and other documents that were prepared by the police. He had also

stated that the police had also recovered mobile phones etc and prepared documents.

PW4 Mukesh Tyagi has put the mobile phone of the co-convict Surendra Kumar on surveillance. He had stated about the IMEI number, his

location and his calls that were made to the PW1 Hemlata Singh, the informant. He is also a witness of recovery of the victim from the Nainital hotel.

He has stated about it. PW5 Bhupendra Singh is also the witness of recovery.

PW6 Pooran Singh is an employee of the hotel where the victim was confined and from where he was recovered. He has stated that the room

was booked by the co-convict Surendra Kumar. According to him, he has identified the co-convict Surendra Kumar and appellants Sudama and Sonu

Kumar and has stated that they were in his hotel when the child was recovered. He has proved the documents which were taken by the police from

the hotel including visitors register etc.

PW7 Vimal Chandra Tamta is the IO. He has submitted charge sheet in the matter. He was the second IO. The first IO is PW8 R.K. Juyal. He

has stated about the steps taken during investigation.

No arguments have been raised with regard to the recovery of victim from the possession of the co-convict Surendra Kumar and appellants Sonu

Kumar and Sudama. PW2 Vishvajeet has identified all the appellants that they alongwith co-convict Surendra Kumar took him to Nainital. Even

otherwise, no arguments have been raised on behalf of the prosecution with regard to the kidnapping of the PW2 Vishvajeet Singh. The statements of

PW1 Hemlata Singh and PW2 Vishvajeet Singh with regard to kidnapping are totally reliable and trustworthy. Therefore, this Court is of the view that

the prosecution has been able to prove that on 26.07.2010, the appellants kidnapped PW2 Vishvajeet Singh and took him to Nainital. The victim was

removed from lawful custody of his guardian.

The question that falls for consideration is, as to what offence has been committed. The appellants have been convicted for the offence punishable

under Section 363 read with 34 and Section 364A read with 34 IPC. Section 363 and Section 364A IPC are as follows:-

“363. Punishment for kidnapping.â€"Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment

of either description for a term which may extend to seven years, and shall also be liable to fine.

364A. Kidnapping for ransom, etc.â€"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 or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be

liable to fine.â€​

In the instant case, there is no call recording which may establish that any ransom call was made or any threat was extended to the informant or to

the victim child. PW4 Mukesh Tyagi has though stated about the telephonic call made between co-convict Surendra Kumar and the informant.

PW1 Hemlata Singh is mother of the victim. According to her, on 26.07.2010 after kidnapping of the child, she received a call, threatening her that

her driver i.e. the co-convict Surendra Kumar and the victim are in their possession and they would kill the child. This witness further says that on

27.07.2010 at 2:00 early in the morning, she received a ransom call of Rs.50 Lakh. But, this has not been stated by the PW1 Hemlata Singh, the

informant to the IO during investigation. She was asked about it in her cross examination. She said that she had told it to the IO; she does not know as

to why it was not recorded by the IO. PW2 Vishvajeet is the victim. According to him, after he was kidnapped, the appellants and the co-convict on

the way alighted from the car and telephoned his mother, threatening his mother that in case, money is not given, they would kill the child.

The question at the first instance is that as to how this witness would say that the appellants and co-convicts did speak to his mother. In his cross

examination, PW2 Vishvajeet, the victim has stated that when police reached in the hotel, the appellants Sonu Kumar and Sudama were demanding

Rs.50 Lakh. It has not been so stated by PW1 Hemlata Singh.

PW8 R.K. Juyal has conducted investigation. He is the first IO. He has stated that PW1 Hemlata Singh did not tell him about any ransom call. He

has also stated that he was not told by anyone that any ransom call was ever made. When asked, PW8 R.K. Juyal has stated that the victim has also

not told it to him about any demand of ransom. PW8 R.K. Juyal has also stated that PW1 Hemlata Singh did not tell him that the appellants and co-

convict did demand Rs.40 Lakh or else to kill the child. He expressed ignorance as to how PW1 Hemlata Singh has so stated in the court. According

to him, PW1 Hemlata Singh did not tell him that she was threatened. In the same sequel, PW8 R.K. Juyal has stated that the child had not told it to

him that he was threatened to life, in case money was not given.

If any ransom call was made or any threat was extended to PW1 Hemlata Singh, the informant and PW2 Vishvajeet, the victim, why they had not

revealed it to the IO. For the first time in court, this statement was given. PW8 R.K. Juyal has categorically stated that neither PW1 Hemlata Singh

nor PW2 Vishvajeet had told him that any ransom call was made or any threat to life of the victim was extended. According to this witness, even no

person has told him about any ransom call or any threat. The statements of PW1 Hemlata Singh and PW2 Vishvajeet are not reliable insofar as,

ransom call or threat is concerned. Therefore, the second condition, as laid down in the case of Shaik Ahmed (supra) has not been proved by the

prosecution. It has not been proved that “there is a threat to cause death or hurt to such person or the accused by their conduct give rise to a

reasonable apprehension that such person may be put to death or hurt.â€​

In view of the above observations, we are of the view that prosecution has not been able to prove the charge under Section 364 A IPC. The

prosecution has proved that the appellants and co-convict had kidnapped the victim child on 26.07.2010 and he was recovered from Nainital on

27.07.2010. Therefore, we are of the view that prosecution has been able to prove the charge under Section 363 read with 34 IPC against the

appellants. They are liable to be convicted accordingly.

The appellants are acquitted of the charge under Section 364 A IPC.

The conviction and sentence of the appellants under Section 363 IPC is upheld.

The appellants have been sentenced to five years rigorous imprisonment with a fine of Rs.1000/- each under Section 363 IPC. Since the appellants

are already in custody for more than five years in the instant case, they shall be released forthwith if not wanted in any other case.

The impugned judgment and order is modified to the extent as indicated above.

The appeals are decided accordingly.

Let a copy of this judgment along with Lower Court Record be transmitted to the Court below for compliance.