Tippu and Others vs State by Malur Police Station

Mohan M. Shantana Goudar, J.—The Judgment & Order of conviction and sentence dated 22nd December 2009 passed by the Presiding Officer, Fast Track Court-I, Kolar in S.C. No. 70/2007 is called in question in this appeal by the convicted Accused Nos. 1 and 2.

Accused Nos. 1 to 3 were charged and tried for the offences punishable under Sections 364-A and 342 of IPC. The trial Court acquitted Accused No. 3 in respect of both the offences and convicted Accused Nos. 1 and 2 for the offences under Sections 364-A and 342 of IPC and sentenced them to undergo imprisonment for life for the offence under Section 364A of IPC and fine of Rs. 1,000/- each for the offence punishable under Section 342 of IPC.

Case of the prosecution in brief is that PW.8 Lokesh is the son-in-law of PW.7 - Babu Rao Salanki; both are businessmen by profession; at 9.30 p.m. on 3.8.2006, when PW.8 was proceeding to his house after closing his shop situated at Malur town in Kolar district, six persons waylaid PW.8 and took him forcibly in a Toyota Qualis vehicle and confined him in the house of PW.22; they demanded a ransom from PW.8 and PW.7; on the next day i.e., on 4.8.2006, as agreed, PW.7 took Rs. 30,00,000/- in a bag and kept the same at a particular place as per the direction of the accused; on 5.8.2006, PW.8 was released by six persons.

In the meanwhile, the wife of PW.8 informed PW.7 that PW.8 did not come to the house and that somebody had abducted him near his house. On getting such information, PW.7 lodged a complaint as per Ex. P7 on 4.8.2006 which came to be registered in Crime No. 178/2006 for the offence punishable under Section 363 of IPC; after release of PW.8 from the clutches of the accused, the statement of PW.8 was recorded and based on which, a memo as per Ex. P20 was sent to JMFC, Malur for altering the offence from Section 363 of IPC to Section 364-A of IPC.

During the course of investigation, the Investigating Officer has recovered Rs. 60,000/- and Rs. 1,00,000/- at the instance of Accused Nos. 1 and 2 respectively and Rs. 2,000/- from Accused No. 3. The Investigating Officer/PW.20 on completion of the investigation laid the charge sheet against six accused.

Out of the six accused, Accused No. 4 - Goru and Accused No. 5 - Gafoor have expired. Since Accused No. 6 -Kaalu is absconding, the case against him was split up. However the trial went on only against Accused Nos. 1 to 3. As aforementioned, Accused Nos. 1 and 2 are convicted for the offences under Sections 364-A and 342 of IPC and Accused No. 3 is acquitted.

In order to prove its case, the prosecution, in all examined 22 witnesses and got marked 20 Exhibits and six material objects. On behalf of the defence, one Exhibit is got marked before the trial Court.

Sri Rajiv Krishna, learned advocate appearing on behalf of the appellants taking us through the material on record and the judgment of the Court below submits that the Court below has convicted Accused Nos. 1 and 2 based on assumptions; the evidence of the Investigating Officer (PW-20) makes its clear that neither PW.7 nor PW.8 have identified the accused; Test Identification parade was not conducted; the Investigating Officer has admitted that since PWs.7 and 8 were not able to identify the accused, he did not conduct the Test Identification parade. He further draws the attention of the Court to the fact that the currency notes which were seized during the course of investigation were in the custody of the third party; the recovery appears to be a make believe affair inasmuch as the notes which are recovered are admittedly not the currency notes which were given by PW.7 to the accused as ransom while getting PW.8 released. He further submits that the reasons assigned and the conclusion arrived at by the Court below are not just and proper.

Per contra, Sri Venkatesh, learned Addl. SPP argues in support of the judgment of the Court below.

PW.1 is the witness for panchanama Ex. P1 in respect of the place wherein PW.7 had kept Rs. 30,00,000/- as per the direction of the accused for getting PW.8 released.

PW.2 has deposed about the apprehension of Accused No. 3 and his personal search; he has also spoken to about seizure of Rs. 2,000/- and mobile under Ex. P2. However the evidence of PW.2 cannot be looked into for the purpose of this case inasmuch as he was not subjected to cross-examination.

PW. 3 is the witness for mahazar Ex. P3 regarding the place wherein PW.8 had been detained.

PW.4 is a witness for Ex. P4 under which currency notes worth Rs. 60,000/- (MO.6) were seized at the instance of Accused No. 2.

PW.5 is the Assistant Revenue Officer who issued the khatha extract as per Ex. P5. His evidence is of no use to the case of the prosecution inasmuch as he has not specified as to for which property the said khatha extract is issued.

PW.6 is the owner of Toyota Qualis vehicle. He has deposed that he gave the said vehicle to Accused No. 4 in order to take mother of Accused No. 4 to the hospital. However the said vehicle is used for abducting the victim. Accused No. 4 is no more.

PW.7 is the complainant. He is the father-in-law of the victim. He lodged the complaint as per Ex. P7. He has deposed regarding the calls made by the accused directing him to pay Rs. 30,00,000/- as ransom. He has also deposed that he took Rs. 30,00,000/- as per the direction of the accused and kept the said money in the designated place in order to get the victim released.

PW.8 is the victim. He has also deposed as to how he was abducted and where he was confined and about the demand of ransom etc.,

PW.9 is an independent witness. He has deposed that he accompanied PW.7 at the time of giving Rs. 30,00,000/- to the accused. However on the direction of the accused, PW.9 did not proceed further; On the other hand, PW.7 went in the car alongwith the driver of the car (PW.10) for placing the money at a particular place indicated by the accused. PW.9 has also deposed about the recovery of Rs. 1,00,000/- at the instance of Accused No. 1 from the house of Chotusab.

PW.10 is the driver of the car belonging to PW.7. He took PW.7 to a place wherein Rs. 30,00,000/- was kept by them.

PWs. 11, 12 and 13 are the witnesses for scene of offence mahazar Ex. P3. All of them have turned hostile.

PW.14 is the owner of the Tata Indica car. The said car is allegedly used by the accused for bringing back the victim to the place of release. PW.14 has turned hostile.

PW.15 is the witness for panchanama Ex. P14 under which the Tata Indica car is seized near Sathyasaibaba Ashram situated at Whitefield, Bangalore.

PW.16 is the witness for panchanama Ex. P11. He was supposed to depose about the recovery of Rs. 1,00,000/- made by the Police from his house at the instance of Accused No. 1. However he has turned hostile.

PW.17 is the witness for panchanama Ex. P4 under which Rs. 60,000/- was seized by the Police at the instance of Accused No. 2. He has turned hostile. It is also mentioned in the panchanama that said Rs. 60,000/- was seized by the Police from the house of PW.17 - Rafeeq @ Mohammed Rafeeq situated at Neelasandra, Bangalore.

PW.18 is the witness for panchanama Ex. P2 under which the Police seized Rs. 2,000/- and a mobile phone from Accused No. 3. However Accused No. 3 is already acquitted on the ground that PW.18 has deposed that he does not know the name of the accused from whom Rs. 2,000/- and mobile were seized.

PW.19 is another witness for seizure panchanama -Ex. P6 under which Tata Indica car was seized. He has also turned hostile.

PWs. 20 and 21 are the Investigating Officers and among them, PW.20 has laid the charge sheet after completion of investigation.

PW.22 is the owner of the house wherein the victim was confined by Accused Nos. 1 and 2. He has turned hostile.

Thus the case of the prosecution mainly rests on the evidence of PWs.7,8,9 and 10 apart from the evidence of PW.4 and PW.20 - the Investigating Officer.

We have carefully perused the evidence of all the witnesses including the aforementioned witnesses. The evidence of PW.7 (father-in-law of the abducted person -PW.8) corroborates his version as found in Ex. P7. He has explained before the Court as to why he did not depose anything about the abduction by six persons specifically at the time of lodging the complaint Ex. P7 inasmuch as he was fearing for the life of the victim. His version before the Court practically supports the case of the prosecution. PW.7 has deposed that his daughter called him over phone at 9.30 p.m. on the relevant date and told him that PW.8 is not found and that his two wheeler vehicle of ''Pulsar'' make was lying near the college; immediately thereafter he (PW.7) lodged the complaint as per Ex. P7; then at about 11.00 p.m. he received a telephone call from PW.8 who told him that some unknown persons are taking him in a car on an unknown route; on the next date i.e., on 4.8.2006, PW.7 received a phone call from Mobile Phone having Number 9980839950; the persons who called PW.7 asked a ransom of Rs. 60,00,000/-; however the same was settled for Rs. 30,00,000/- after negotiations over phone; the accused had put a condition on PW.7 that only two persons should come on a motorcycle near Jadigenahalli village, Hosakote taluk; however PW.7 having feared to go only with one person, took four persons including PW.9 - Fayaz in a car; after going to certain distance, PW.7 received another call from the accused stating that he (PW.7) was coming with the police and hence he should not come on that day; consequently on the next day, he left all the said persons at Hosakote and as per the wish of the accused, PW.7 went alongwith PW.10, driver of the car to white field wherein the accused had asked them to come; the accused had told PW.7 that he should keep Rs. 30,00,000/- under a tree standing near the shed situated at Alembic colony; accordingly PW.7 kept Rs. 30,00,000/- at the place designated by the accused and went; subsequently, the victim called PW.7 over phone and told him that he should come near Alembic colony and accordingly PW.7 went near Alembic colony where the victim was released by then; even after getting Rs. 30,00,000/- from PW.7, the accused allegedly demanded Rs. 5,00,000/- to Rs. 10,00,000/- subsequently; hence the complaint came to be lodged by him; PW.7 identified Accused Nos. 1 and 2 before the Court as the persons who had demanded money from him. Despite searching cross-examination of PW.7, nothing worth is elicited by the defence so as to discard his evidence in toto. PW.7 has deposed to certain extent that the victim was threatened with dire consequences that the victim would be subjected to harm. However he has deposed about giving Rs. 30,00,000/- to the accused as ransom and about abduction of the victim and subsequent release of the victim by the accused. The evidence of PW.7 is supported by the evidence of PW.8. The evidence of PW.8 is also on par with the evidence of PW.7. PW.8 has also deposed about the way in which he was abducted and as to how he was taken in Toyota Qualis vehicle and about the demand of ransom etc., PW.8 in his evidence has deposed that Accused No. 1 was showing knife and threatening him.

According to PW.7 and the case of the prosecution, large sums of money to the extent of Rs. 30,00,000/- was taken by PW.7 in a bag on the night of 4.8.2006 in the car driven by PW.10. He kept the said bag containing the money under a tree and left the place. On the next day i.e., on 5.8.2006 the abducted person (PW.8) called his father-in-law (PW.7) and asked him to come to a particular place and accordingly PW.7 went and met PW.8 and both of them came together to their house after release of victim from the culprits. Despite paying huge amount of Rs. 30,00,000/- on the night of 4.8.2006, PW.7 did not lodge any complaint with regard to payment of money. Per contra, Ex. P7 -complaint lodged by PW.7 merely discloses that some culprits had abducted his son-in-law - Lokesh (PW.8) at 9.50 p.m. on 3.8.2006. Even after the victim was released by the culprits on the night of 5.8.2006, the complaint was not lodged alleging payment of money. PW.7 remained silent without disclosing to anybody including the Police about payment of money till the mid-night intervening 6.8.2006 and 7.8.2006 i.e., till the Police came to his house and found the presence of PW.8 in his house. Hence it is clear that PW.7 who is the prime witness for payment of money of Rs. 30,00,000/- to the accused has kept quite for more than 24 hours without disclosing about payment of money to anybody, that too even after the release of PW.8.

From the above, we are of the opinion that the evidence of PW.7 is doubtful insofar as it relates to payment of money is concerned, but his evidence is believable in respect of other factors such as abduction of PW.8 etc.

PW.6 has deposed that he is the owner of the Toyota Qualis vehicle bearing Registration No. KA-23-P.8900. According to him, Accused No. 4 came to him and took his vehicle on the pretext of taking his mother to the hospital. Believing the words of Accused No. 4, he gave the vehicle to Accused No. 4. Subsequently, PW.6 came to know that his vehicle was mis-used by accused for abducting PW.8. The defence has virtually not cross-examined PW.6 on any material aspect. Therefore it is clear that the Toyota Qualis vehicle which was provided by PW.6 to Accused No. 4 was used for commission of the offence and the said fact is practically admitted by the defence.

The evidence of PWs.7 and 8 is further supported by the evidence of PWs.9 and 10. PW.10 (driver of the car) has deposed that he had taken PW.7 and the suitcase was carried by him in the car; both of them went ahead of railway gate as directed by the accused over phone and subsequently PW.7 kept the suitcase in the place directed by the accused. Even while the victim was released from the accused, PW.7 went alongwith PW.10 in the car to the place of the release to get back PW.8, the victim.

PW.9 has deposed about the seizure of Rs. 1,00,000/- under Ex. P11 from the house of PW.16 -Chotusab at the instance of Accused No. 1. In the matter on hand, said Chotusab (PW.16) has turned hostile. Despite his cross-examination by the Public Prosecutor, no useful material is brought on record by the prosecution in support of its case. However PW.9 has deposed about the recovery of Rs. 1,00,000/-. His evidence discloses that Rs. 1,00,000/- so seized from the house of Chotusab (PW.16) was of Rs. 100/- denomination. It further discloses that Chotusab (PW.16) had informed the panchas and the Police that the currency notes totalling to Rs. 1,00,000/- seized under Ex. P11 are of Rs. 100/- denomination and the same were not the currency notes which were handed over to him by Accused No. 1. PW.9 is also a witness for panchanama Ex. P2 under which two notes of Rs. 1,000/- were seized from Jagannatha Chari (Accused No. 3). The trial Court has disbelieved the case of the prosecution as against Accused No. 3 including seizure of two notes of Rs. 1,000/- each from Accused No. 3. We find that the evidence of PW.9 insofar as the panchanama Ex. P2 is shaky and unbelievable. In the cross-examination, PW.9 admits that the Police did not put any seal or mark on the currency notes which were seized under the panchanama Ex. P11. He further admits that the complainant PW.7 was known to him since many years and that he had worked in his house as mason. He further admits that he does not know as to what is written in the panchanama - Ex. P11. These facts clearly reveal that PW.9 has simply signed the mahazar - Ex. P11 under which Rs. 1,00,000/- is allegedly seized by the Police. It is also clear that the currency notes worth Rs. 1,00,000/- which are seized under mahazar Ex. P11 at the instance of Accused No. 1 from the house of Chotusab (PW.16) are not the currency notes from out of the ransom received by the accused.

It is the case of the prosecution that PW.4 is the witness for mahazar Ex. P4 under which Rs. 60,000/- was seized from a house situated at Bangalore at the instance of Accused No. 2. The evidence of PW.4 makes it clear that he had been to the Police Station on the relevant day to enquire about a case relating to the theft of his TVS moped; at that point of time, the accused took him (PW.4) alongwith other panchas to a house situated at Bangalore at the instance of Accused No. 2; after going to such house situated at Bangalore, the Police entered the house and recovered a sum of Rs. 60,000/- and the same were in the denomination of Rs. 500/-. Nothing is found in the evidence of PW.4 to whom the said house belonged and as to in which area of Bangalore such house is situated. The evidence of PW.4 merely states that the Police and the Accused No. 2 took him to a house situated at Bangalore. Bangalore is not a small place. Not even the name of the area in Bangalore wherein the house is situated is found in the evidence of PW.4. Even according to PW.4, the Police themselves entered the house and seized Rs. 60,000/-. Since there is nothing on record to show as to where the house is situated and to whom the house belonged, the evidence of PW.4 insofar as seizure of Rs. 60,000/- cannot be believed. It is also unknown as to who was residing in the said house. PW.4 admits that currency notes were not counted by him and he did not see any number on the said notes. It is further admitted by PW.4 that number of houses are situated adjoining the house in which the seizure was made. Since the Police straightaway entered the house for seizure, it may be safely said that the house was open and anybody could have access to the said house. It is the further deposition of PW.4 that he does not know the names of other persons who signed the mahazar Ex. P4. He was taken to 2nd floor for preparing the mahazar. Even in the 2nd floor, nobody was residing. Mahazar was drawn to certain extent in the 2nd floor and he does not know as to where the remaining portion of mahazar is written. These facts clearly reveal that PW.4 is a got up witness and the theory putforth by the prosecution by creating Ex. P4 - Seizure mahazar is false and concocted.

The prosecution has examined PW.17 who is stated to be another panch for Ex. P4. He has turned hostile to the case of the prosecution. He has completely denied the alleged seizure of Rs. 60,000/- by the Police at the behest of Accused No. 2. However he has admitted that he has signed Ex. P4 in the Malur Police Station. Nothing worth is elicited by the prosecution by cross-examining PW.17.

The evidence of PW.20 further creates suspicion to certain extent in the mind of the Court in respect of alleged payment of ransom by PW.7 for getting PW.8 released. He has admitted in the cross-examination that during the course of investigation, he learnt that Rs. 30,00,000/- given by PW.7 as ransom was of Rs. 1,000/- denomination. However not even a single currency note of Rs. 1,000/- denomination is seized or recovered during the course of investigation by the Police, except the two notes seized at the instance of Accused No. 3 which is disbelieved by the Trial Court as well as by us. The said Police Officer has explained that the accused had spent the amount which was taken by them from PW.7 and that therefore the currency notes seized are of different one. PW.20 has further admitted that he does not know as to from where the accused got Rs. 1,00,000/- or Rs. 60,000/- which are recovered during the course of investigation. It is further admitted by PW.20 that since the accused had covered their faces fully and as they had covered the face of the victim also fully, the victim was not in a position to identify any of the accused and therefore he felt that no useful purpose would be served in conducting the Test Identification parade. It is also specifically deposed by PW.20, the Investigating Officer that even the victim - Lokesh did not identify the accused.

After assessing the entire material on record, we are of the clear opinion that the prosecution has made out a case against the Accused Nos. 1 and 2/appellants that the victim was put to grave threat by the accused and that he was abducted. However the material on record is not sufficient to conclude that the abduction was for getting ransom either from PW.8 or PW.7 (his relative). We have also narrated supra in detail as to how the evidence of PW.7 and recovery panchas is unreliable insofar as it relates to recovery is concerned. We have also clarified in the aforementioned paragraph that two other witnesses who are supposed to depose about the aspect of recovery i.e., PW-16 - Syed Chotusab and PW.17 - Rafeeq have turned hostile to the case of the prosecution. Nothing worth is elicited by the prosecution though these witnesses were subjected to lengthy cross-examination. The trial Court has disbelieved the version with regard to recovery of Rs. 2,000/- at the behest of Accused No. 3. PW.10 is an interested witness inasmuch as he is the driver of the car owned by PW.7. PW.4, another witness who supported the case of the prosecution has also taken an ''U'' turn by subsequently deposing that he cannot identify the currency notes. In addition to the same, the Investigating Officer himself has admitted that all the currency notes which are recovered and seized are some other currency notes inasmuch as the currency notes which were alleged to have been given by PW.7 towards ransom are not recovered and such currency notes must have been spent by the accused. Moreover the evidence of PW.7 does not make it clear as to from where he got huge sum of Rs. 30,00,000/- overnight in order to satisfy the demand of the accused. Absolutely no records are forthcoming to show as to how PW.7 could gather such large sums of money, that too within a period of one day. The say of PW.7 that he got the said amount from his friends and relatives cannot be believed in the absence of any evidence supporting the said statement. Therefore we are of the opinion that the prosecution has proved that PW.8 was abducted by the accused by creating apprehension in his mind that he could be hurt. Since the prosecution has failed to prove regarding the alleged demand and payment of ransom, the offence said to have been committed by Accused Nos. 1 and 2 falls under Section 367 of IPC and not under Section 364-A of IPC.

We have heard the learned advocates on the question of sentence. Learned advocate for the appellant submits that the accused have already undergone more than 7 Vi years of imprisonment and that itself may be sufficient punishment for them. The said submission is opposed by Sri Venkatesh, learned Addl. SPP who argued for imposition of the higher punishment.

Having regard to the totality of facts and circumstances, we pass the following order:

"(a) The impugned Judgment and Order of conviction convicting Accused Nos. 1 and 2/appellants for the offence under Section 364-A is modified. Accused Nos. 1 and 2/appeallants are convicted for the offence punishable under Section 367 of IPC. They are sentenced to undergo imprisonment for ten years and to pay fine of Rs. 1,00,000/- (Rupees one lakh only) each. In case of default of payment of fine, they shall undergo further imprisonment for two years.

(b) The impugned Judgment & Order of conviction and sentence convicting Accused Nos. 1 and 2 for the offence under Section 342 of IPC is left undisturbed.

(c) Both the sentences shall run concurrently.

(d) Accused Nos. 1 and 2 are entitled to the benefit of set off under Section 428 of Cr.P.C.

(e) The Judgment and order of conviction passed by the trial Court is modified accordingly and the appeal is allowed in part to the aforementioned extent."