Subalal vs State of M.P.

M.K. Mudgal, J.—By this judgment both the Criminal Appeal No. 168 of 2004 (Subalal Vs. State of M.P.) and Criminal Appeal No. 255 of 2004 (Vijay @ Talwar and another Vs. State of M.P.) are being disposed of simultaneously by a common judgment, as the aforesaid appeals are arising out of the judgment dated 25.2.2004 passed by the Court of Special Judge (Dacoity Prabhavit Kshetra) Bhind (Shri J.M. Chaturvedi) in Special Case No. 106 of 2001 convicting the accused persons u/s 364A of IPC read with Section 11/13 of the M.P.D.V.P.K. Act and sentencing them to undergo life imprisonment and to pay fine of Rs. 5000/- each with default stipulation mentioned in the impugned judgment. Facts in brief of the case are that on the date of incident I.e. 23.9.2000 Pankaj Sharma (PW3) and Fodal Sharma (PW6) son and nephew respectively of complainant Ramprakash Sharma (PW1) went for grazing their cattle in the behad alongwith Surendra @ Chunni Singh (PW7) and other boys of village. When Pankaj, Fodal and Surendra @ Chunni Singh did not return, complainant along with the village people went to behad in their search where at about 9 PM one Hariram (PW4) was seen coming out of the behad who disclosed that at about 4 PM when Pankaj, Fodal, Chunni and other boys were grazing their cattles, about 10 unknown persons came their and kidnapped them and he (said Hariram) could only escape himself from their custody. Due to night, the oral report of the incident could be lodged at 7 AM on 24.9.2000 at Police Station Phoof Ex.P/1 where, Crime No. 126 of 2000 for the offence punishable u/s 364A/34 of IPC was registered. During Investigation, spot map was prepared and statements of complainant Ramprakash Sharma, Lalu, Bhagwandas, Hariram Satyavir, Kamal, Raju and Pratham were recorded. After release of kidnapee Pankaj, Fodal and Surendra alias Chunni, their statements were also recorded. As per statements of the witnesses, the kidnapees were released by the accused after getting ransom of Rs. 1,57,000/-. After investigation, a charge sheet was filed before the trial Court showing the accused persons as absconding.

The accused persons denying the charges had claimed to have been falsely implicated in the case.

The following questions arise for consideration in this appeal;

Whether Pankaj, Fode @ Fodal and Surendra @ Chunni Singh were kidnapped by the accused persons for ransom?

Whether the findings of the lower Court are based on proper appreciation of the evidence?

In order to bring home the charge, the prosecution examined as many as 13 witnesses and placed on record the documents Ex.P/1 to P/6. The defence of the appellants and other co-accused persons is of false implication.

The learned trial Judge after appreciating and marshalling the evidence, came to hold that the charge u/s 364A/34 of IPC read with Section 11/13 of MPDVPK Act is proved against the appellants and eventually convicted them and passed the sentence which we have mentioned here in above.

Learned counsel for the appellants contended that the finding recorded by learned trial Judge in regard to offence u/s 364A of IPC are perverse and no offence u/s 364A of IPC is made out against the appellants. Learned counsel further contended that the prosecution did not produce any cogent evidence that the demand of ransom was communicated to the family of the kidnapees vis-a-vis there is also no oral evidence to this effect. Hence, no offence u/s 364A of IPC is made out against the appellants.

The counsel appearing on behalf of the appellants has further argued that on the basis of evidence adduced by the prosecution, the conviction of appellants at the best could be only u/s 365 of IPC and has further submitted that the appellants have been in jail since their arrest, I.e. the accused Subalal, Vijay @ Talwar and Rajjan Mehtar from 27.6.2001, 2.1.2002 and 20.3.2002 respectively, thus, they have served the sentence for more than ten years. In support of his contention, learned counsel placed reliance on two judgments of Hon''ble Apex Court in Akram Khan Vs. State of West Bengal and Malleshi Vs. State of Karnataka,

On the other hand, Shri A.K. Shrivastava learned Panel Lawyer argued in support of the impugned judgment and contended that the prosecution has proved the case against accused appellants beyond reasonable doubt. There is ample evidence on record to establish that the demand of ransom was made and it was communicated to the family members. In such circumstances, the learned trial Court has rightly held that the appellants have committed an offence u/s 364A of IPC.

Heard arguments of both the parties and perused the record.

The witnesses Pankaj (PW3) and Fode alias Fodal (PW6) have stated their age to be 15 and 17 years respectively. The age of the witnesses has not been challenged in their statements. The said incident took place on 23.9.2000 and so it is clear from the statements of Pankaj (PW3) and Fode alias Fodal (PW6) that the said kidnapees were minors on the date of occurrence.

The prosecution has got the statements of thirteen witnesses examined in this case. The kidnapees Pankaj (PW3), Fode alias Fodal (PW6) and Surendra alias Chunni Singh (PW7) deposing in their statements have unequivocally stated that on the date of incident, they had gone to ravine for grazing their cattle where some other boys too were grazing their cattle. When they were playing cards at about 4 PM, 8 to 10 persons arrived there along with guns and took them forcibly in the jungle. Having traveled a distance of three to four Kilometers, they had taken Pankaj (PW3), Fode alias Fodal (PW6) and Surendra alias Chunni (PW7) away with them letting others go. The aforesaid facts have been corroborated by Hariram (PW4), Laloo (PW5), Raju (PW8), Bhagwandas (PW9), Pratham (PW10) and Kamal (PW11) in their statements. The FIR Ex.P/1 proved by the witness Ramprakash (PW1) also corroborates the fact of kidnapping. Thus, it becomes clear from the statements of the said witnesses that Pankaj (PW3), Fode alias Fodal (PW6) and Surendra alias Chunni Singh (PW7) were kidnapped by some dacoits.

The witness Hariram (PW4), Lalu (PW5), Raju (PW8), Bhagwandas (PW9), Pratham (PW10) and Kamal (PW11) have not supported the prosecution story that the accused were involved in the act of kidnapping of Pankaj (PW3), Fode @ Fodal (PW6) and Surendra alias Chunni Singh (PW7) and did not identify the accused. On account of this, the witnesses were declared hostile. During the cross-examination, nothing concrete has come on record against the accused to connect them with the crime of kidnapping.

The witness Pankaj (PW3) deposing in para 2 of his statement has stated that one of the twelve accused who kidnapped the boys was Subalal. In para 3, the witness has deposed that he was detained by the accused in the custody for more than three months. In para 5 of the statement, the witness has further stated that the accused Subalal was called by his name in the gang by the other accomplices owing to which, he became familiar with the name and identity of Subalal. Similarly, the witness Fode alias Fodal (PW6) deposing in para 3 has stated that the accused Subalal and Raju were in the gang of kidnappers and he too was in their custody for three months. In para 9 of his statement, the witness has said that the accused Rajjan, Raju, Talwar and Tanny were also members of the gang and they were seen by him during his captivity in the jungle.

The witness Surendra alias Chunni Singh (PW7) has also deposed in para 1 of his statement that he knows the accused Subalal, Rajjan and Vijay @ Talwar who were involved in his kidnapping. He further stated that he had been in their captivity for six months and after payment of Rs. 70,000/- as ransom to the kidnappers, he was released from their detention. During cross-examination of the said witnesses as nothing has come on record that their statements against the three accused namely Subalal, Vijay alias Talwar and Rajjan their involvement in the act of kidnapping can be disbelieved. Thus, it is found proved that Pankaj (PW3), Fode alias Fodal (PW6) and Surendra alias Chunni Singh (PW7) were kidnapped by the said accused along with their other accomplices.

Now, it is to be considered in this case whether, demand of ransom was communicated to any family member of kidnapees and if there is sufficient evidence to convict the accused u/s 364A of the IPC. Before appreciating the evidence, it is necessary here to reproduce Section 364A of IPC which reads as under:

364A. Kidnapping for ransom etc.- Whoever kidnaps or abducts any persons 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 intergovernmental 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.

Ramprakash (PW1) father of Pankaj Sharma (PW3) and uncle of Fode alias Fodal (PW6) has stated that he had received a letter of Nirbhay Singh, dacoit. A copy of the said letter is enclosed in the case, but neither original letter has been produced on record, nor has the same been proved in the evidence. Mere production of photo copy of the said letter is meaningless. Without proving it, no inference can be drawn on the basis of a photo copy. This witness in para 3 of his statement has further stated that he got Pankaj Sharma (PW3) and Fode alias Fodal (PW6) released from dacoit after paying Rs. 1,51,000/- as ransom. During cross-examination in para 8, the witness has admitted that the said facts were not disclosed by him when his statement was recorded by the police during investigation u/s 161 of Cr.P.C. and he is deposing the said fact in the Court. From the above statement, it becomes clear that the witness has never disclosed the fact regarding the payment of ransom to the police. If a material fact is found missing in the police statement recorded u/s 161 of the Cr.P.C. and the said fact is deposed later by a witness in the statement given in the court, it would be deemed as an after thought and cannot be relied upon for conviction as held by this Court in Guddu Vs. State of M.P. 2000 (II) MPWN 162, Laxmi Bai Vs. State of M.P., . Hence, no inference can be drawn regarding the offence u/s 364A of IPC on the basis of Ramprakash (PW1)''s statement.

The witness Surendra alias Chunni Singh (PW7) has deposed in para 3 that the amount of Rs. 70,000/- was paid by his family members as ransom to the accused thereafter he was released by them. The witness has stated in para 10 that the said amount was given by his younger brother but statement of his younger brother has not been got recorded in this case. On perusal of the said statement, it appears that knowledge of paying the ransom of Surendra alias Chunni Singh (PW7) is based on hearsay. Thus, his statement has also no significance for proving the offence u/s 364A of the IPC. No other witness has deposed about receiving the information for demand of ransom from the accused. Although, learned trial Court having discussed the evidence in para 13 to 15, has concluded and held guilty the accused u/s 364A of the IPC but it has not been properly considered whether, the demand for ransom was communicated to the family members of the kidnapees.

The Hon''ble Supreme Court in the case of Akram Khan (supra) has held that to meet out the offence u/s 364A of IPC a demand of ransom has to be communicated. The relevant findings of the Hon''ble Supreme Court are as under:

In Malleshi Vs. State of Karnataka, , while considering the ingredients of section 364A, IPC, this Court held 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....

To pay a ransom, as stated in the above referred Section, in the ordinary sense means to pay the price or demand for ransom. This would show that the demand has to be communicated.

Hence, in our opinion, the offence u/s 364A of IPC could not be established against the appellants. However, the fact of kidnapping of Pankaj (PW3), Fode alias Fodal (PW6) and Surendra alias Chunni Singh (PW7) by the accused has been proved as discussed earlier. Therefore, the appellants are liable to be convicted u/s 365 of IPC instead of u/s 364A of IPC. Hence, the appellants are hereby acquitted u/s 364A of IPC, however, they are convicted u/s 365 of IPC.

So far as sentence is concerned u/s 365 of the IPC maximum sentence is provided up to seven years. Hence, in our opinion, looking to the facts of the case, it would be just and proper to award sentence of seven years RI u/s 365 of IPC. The appellants were members of the dacoit Nirbhay Gurjar''s gang as per the evidence, hence, in our opinion, the trial Court has rightly convicted the appellants u/s 11/13 of the M.P. Dakaiti Aur Vyaparan Prabhavit Kshetra Adhiniyam, 1981.

For the foregoing reasons, we allow the appeal in part. The conviction and sentence of the appellants u/s 364A of IPC passed by the learned trial Court is set-aside, instead thereof, they are held guilty of offence punishable u/s 365 of IPC and direct them to undergo RI for seven years. The conviction of the appellants u/s 11/13 of the MPDVPK Act is hereby affirmed. However, no separate sentence is passed u/s 11/13 of MPDVPK Act.

The appellants have already undergone jail sentence for more than seven years as per the record of the case and so they be set at liberty forthwith if not required in any other criminal case. This appeal is accordingly allowed in part with modification of the sentence mentioned herein above.