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2006 DIGILAW 1017 (GAU)

Bidhu Debbarma v. State of Tripura

2006-11-21

TINLIANTHANG VAIPHEI

body2006
JUDGMENT T. Vaiphei, J. 1. The legality of the conviction and sentence of the Appellant passed by the Learned Addl. Sessions Judge (Court No. 3), West Tripura under Section 384 I.P.C. In his judgment dated 31.07.2005 in connection with Sessions Trial Case No. 153 (WT/A)/2000, is under challenge in this Criminal Appeal. 2. I have heard Mr. S.D. Choudhury, the Learned Counsel for the Appellant and Mr. R.C. Debnath, the Learned Public Prosecutor in charge. 3. The case of the prosecution, briefly stated, is that on 15.12.1998 in the evening, Sadhan Das aged about 25 years, Son of the informant of Jagaharimura under West Agartala Police Station had gone out to attend some invitation but did not return during the night time. When he did not return in the night, the informant and his relative searched for him but could not trace him out. On 16.12.1998, his scooter was found abandoned at South Anandanagar with a leaf-let indicating that some extremists had abducted him for ransom. Takarjala Police Station collected the scooter and took it to the police station. On learning that the victim was abducted by extremists, the informant with his sons-in-law Ranjan Das went to East Agartala Police Station and lodged a written FIR, which was subsequently registered as Takarjala P.S. Case No. 58 of 1998 under Section 364(A) I.P.C., which prompted the investigation of the case. In the meantime, the informant received a number of letters from the extremists group called ATBYF, instructed him to pay ransom for the release of missing person to the order of Rs. 10,00,000/- and asked him for negotiation. As per the instruction contained in the letter of the extremists, the informant along with his two sons-in-law met the Appellant at Mandai in his shop and discussed with him about the ransom amount. The informant expressed his inability to make the payment as demanded, but after negotiation, it was agreed that the informant would pay Rs. 1,00,000/- to the Appellant, for the release of his son. The informant along with his two sons-in-law i.e., P.W. 1 and P.W. 3 accordingly met the Appellant from time to time and on one spell paid Rs. 90,000/- and on the second spell paid Rs. 10,000/-, but no release was made even after this payment. The informant thereafter met the Appellant again, who told him that unless a further sum of Rs. 90,000/- and on the second spell paid Rs. 10,000/-, but no release was made even after this payment. The informant thereafter met the Appellant again, who told him that unless a further sum of Rs. 1,00,000/- was paid, his son would not be released whereupon the informant with P.W. 1 and P.W. 3 and Anr. relative somehow managed to get Rs. 1,00,000/- which was subsequently paid to the Appellant, who in turn, assured them that the victim would be released at Bagma near Bagma Hospital and instructed them to wait there. P.W 1 and P.W. 3 accordingly proceeded to Bagma and waited there, but the victim was not released. When the payment of Rs. 2,00,000/- as ransom did not result in the release of the victim by the extremists from their caprivity, they again met the informant, who, however, threatened them with dire consequences if they made any attempt to meet him again at Mandai. The informant and his relative thereupon dropped the idea of meeting with the Appellant. In the course of the investigation, the police seized the letters, which the informant received from the extremists by preparing a seizure list. After the investigation, the police charge sheeted the Appellant and other accused persons for the offence punishable under Section 364(A) and 109 I.P.C. The case was subsequently committed to the Court of Sessions Judge, who endorsed it to the learned Addl. Sessions Judge (Court No. 3), West Tripura for trial. Learned Addl. Sessions Judge, having found a prima facie case, framed charge against the Appellant and other accused persons under Section364(A) IPC, to which the Appellant pleaded not guilty and claimed to be tried. The trial thereafter commenced before the Learned Addl. Sessions Judge. In the course of the trial, seven witnesses were examined on behalf of the prosecution to substantiate the charge framed against the Appellant besides exhibiting a number of documents. At the conclusion of the trial the Trial Court found the Appellant guilty of the offence charged, convicted him accordingly and sentenced him to undergo rigorous imprisonment for three years and at the same time directed him to pay a compensation of Rs. 2,50,000/- to the informant in terms of Section 357(3) Code of Criminal Procedure. 4. Mr. At the conclusion of the trial the Trial Court found the Appellant guilty of the offence charged, convicted him accordingly and sentenced him to undergo rigorous imprisonment for three years and at the same time directed him to pay a compensation of Rs. 2,50,000/- to the informant in terms of Section 357(3) Code of Criminal Procedure. 4. Mr. S.D. Choudhury, the learned Counsel for the Appellant submits that the prosecution has miserably (sic failed) to substantiate the charge levelled against the Appellant and that the evidence of P.W. 1,2 and 3 upon which reliance was placed for conviction by the Trial Court do not inspire confidence. He further submits that the Exbt. M.O.1 to M.O.5, which are allegedly written by the extremists demanding ransom, do not in any manner link the Appellant with the kidnapping. He also contends in as much as the Appellant was convicted under Section 384 IPC with which he was not charged and which is not a minor offence for invoking Section 222 Code of Criminal Procedure, thereby causing prejudice to the Appellant, such conviction is illegal and for this reason alone, the conviction should be set aside and the case be remanded to the Trial Court for fresh trial after framing the charge against the Appellant under Section 384 IPC. 5. On the other hand, the learned Public Prosecution in charge while supporting the impugned judgment strenuously urges that the evidence led and adduced by the prosecution are sufficient to sustain the conviction of the Appellant and that since Section 384 IPC is a minor offence in relation to Section 364 IPC, the conviction under Section 384 IPC without framing a specific charge against the Appellant in this behalf is permissible of Section 222 Code of Criminal Procedure In any case, according to the learned Public Prosecution in charge, this plea was never urged by the Appellant in his memo of appeal and the same cannot be urged by him at this stage at the time of hearing of this appeal. He maintains that the impugned judgment of conviction and sentence does not suffer from any infirmity calling for the interference from this Court. 6. He maintains that the impugned judgment of conviction and sentence does not suffer from any infirmity calling for the interference from this Court. 6. On giving my anxious consideration to the rival submissions advanced by the parties and on going through the impugned judgment of conviction and sentence and that of the statement of P.W. 2, 3 and 1, I am of the view that the findings recorded by the Trial Court in the impugned judgment are based on sufficient evidence, which cannot be disturbed by this Court. The informant is examined as PW 2, and is the father of the victim. In his deposition, he in clear terms identified the Appellant as the person with whom he negotiated the release of his son for payment of ransom. It is deposed by him that Exhibit M.O.4 was received by him, in which it was clearly mentioned by the extremists that rendezvous for payment of the ransom money was at the shop of the Appellant at Mandal Bazar and that the Appellant would call John Debbarma for the negotiation. It was as per the instruction contained in M.O.4, according to PW 2, that he alongwith PW 1 and 3 approached the Appellant at his shop and negotiated with him on the ransom money to be paid. He deposed that they told the Appellant that they would be able to give Rs. 50,000/- and requested him to reduce the ransom amount where after it was ultimately agreed between them to Rs. 1,00,000/-. This witness went on to testify that sum of Rs. 90,000/- was handed over to the Appellant after three days, but he told them that the remaining amount of Rs. 10,000/- had to be given by them and there would be no concession. Continuing his deposition, this witness testified that they returned to the Appellant after two days and handed over Rs. 10,000/- to him, but his son was not released even after this and instead, the Appellant demanded a further sum of Rs. 1,00,000/- as otherwise his son could not be released. It is the further deposition of the PW 2 that after about 15 days of the last payment, they got Anr. amount of Rs. 1,00,000/- after considerable efforts and gave the same to the Appellant. His son apparently was not released even after this. 1,00,000/- as otherwise his son could not be released. It is the further deposition of the PW 2 that after about 15 days of the last payment, they got Anr. amount of Rs. 1,00,000/- after considerable efforts and gave the same to the Appellant. His son apparently was not released even after this. According to PW 2, thereafter when they went to meet the Appellant to enquire about his son, he firmly told them not to visit him again otherwise their lives would be in danger. 7. At this stage, it may be noted that the facts that the victim was a victim of abduction and was never released from the captivity of the extremists, are not in dispute. The aforesaid statement of PW 2 have not been shaken in any manner in the cross examination. On the contrary, his depositions are trustworthy, consistent throughout and can be acted upon even without corroboration. However, to lend assurance to the testimony of this witness, I minutely perused the statement of PW 3, who is the son-in-law of PW 2 and who claimed to have been involved in the negotiation of the ransom money with and in the payment thereof to the Appellant. His evidence is that as per the instruction contained in Exhibit M.O.4, he alongwith PW 1 and 2 contacted the Appellant at Mandai Bazar at his shop and after negotiation it was ultimately agreed that the ransom amount would be Rs. 1,00,000/-. According to this witness, they returned to the Appellant and handed over Rs. 90,000/- to him, which was accepted by him on the condition that the remaining sum of Rs. 10,000/- be paid to him. PW 3 further deposed that after two days, they arranged Rs. 10,000/-, which was given to the Appellant whereafter they waited for the release of the victim and that even after this payment, he was not released. He also deposed that when they again contacted the Appellant, he demanded Anr. Rs. 1,00,000/- otherwise the life of the victim would be in danger. According to this witness, the money was arranged and was paid to the Appellant at his shop at Mandai and that even after payment of Rs. 2,00,000/- the victim was never released even though they were given to understand by the Appellant that they would meet the victim at Bagma near Bagma Hospital. According to this witness, the money was arranged and was paid to the Appellant at his shop at Mandai and that even after payment of Rs. 2,00,000/- the victim was never released even though they were given to understand by the Appellant that they would meet the victim at Bagma near Bagma Hospital. He also testified that they approached the Appellant again but was told by him that they should not contact him again other wise they would also be kidnapped by the extremists. This witness also duly identified Exhibit M.O.4, which is the letter received by the father of the victim (PW 2) from the extremists. The cross examination of this witness has not shaken in any manner the statement made by him in his examination in chief. Except of that part of the statement of PW 3, stating that after making payment to the Appellant, as per his instruction, they went to Bagma, which was not found in his previous statement, there is nothing in his cross examination which can otherwise impeach the credibility of this witness. In my judgment, this witness has sufficiently corroborated the entire statement of PW 2, not only in relation to the material particulars. 8. Coming now to the statement of PW 1, who is the informant and the son-in-law of the father of the victim, this witness has corroborated the statement of PW 2 in relation to: (i) the contact made by them with the Appellant; (ii) the initial negotiated amount of the ransom money of Rs. 1,00,000/-; (iii) the first payment of Rs. 90,000/- to the Appellant and subsequent payment of Rs. 10,000/- and also; (iv) the final payment of Rs. 1,00,000/- to the Appellant. However, there are certain omission made by him before the police under Section 161 Code of Criminal Procedure in relation to: (i) the fact that the Appellant had told PW 1, 2 & 3 on first occasion that if they gave Rs. 10,00,000/-, the victim would be released from the captivity of the extremists; (ii) the fact that they told the Appellant that they would not be able to give Rs. 10,00,000/- and that it was settled between them that they would give Rs. 1,00,000/-; (iii) the fact that the Appellant did not agree with the payment of Rs. 90,000/- and demanded Anr. sum of Rs. 10,000/- and further demand of Rs. 10,00,000/- and that it was settled between them that they would give Rs. 1,00,000/-; (iii) the fact that the Appellant did not agree with the payment of Rs. 90,000/- and demanded Anr. sum of Rs. 10,000/- and further demand of Rs. 1,00,000/- even after payment of Rs. 10,000/-; (iv) the fact that the Appellant told them to wait in front of Bagma Hospital and that the victim would be released there and accordingly they went there and were waiting for victim and; (v) the fact that the Appellant told them that they should not inform the police about the occurrence and that the Appellant had threatened them. 9. It is interesting to note that those omissions do not pertain to the handing over of Rs. 90,000/- by PW 1, 2 and 3 to the Appellant or of the giving of Rs. 10,000/- to the Appellant subsequently and of the final payment of Rs. 1,00,000/- made to the Appellant by them. Thus, viewed from this angle, the omissions found in the previous statement of PW 1 are really on the material facts affecting the core of the prosecution case. The case of the prosecution is and remains that the Appellant was one with whom the family of the victim had negotiated the ransom amount and to whom the ransom amount to the order of Rs. 2,00,000/- was paid to him on different spells. Even if those facts omitted in his previous statement amounted to material contradictions, still they cannot impair the otherwise reliable and consistent evidence of PW Nos 2 & 3. Moreover, I found the evidence of PW 1, taken as a whole, to be creditworthy and acceptable. This is not a case in which the evidence of all the eye witnesses are not wholly reliable, so that the question of one witness corroborating the other could not arose. At any rate, the aforesaid omissions, even if they amount to material contradictions, cannot create serious doubt about the prosecution version. Under the aforesaid circumstances, I hold that the evidence of PW 1, 2 & 3 can be acted upon by this Court for convicting the Appellant. 10. The next question is to be determined by this Court whether the offence of Section 384 IPC is made out from the proved facts of the case. Under the aforesaid circumstances, I hold that the evidence of PW 1, 2 & 3 can be acted upon by this Court for convicting the Appellant. 10. The next question is to be determined by this Court whether the offence of Section 384 IPC is made out from the proved facts of the case. Section 384 IPC is the penal section of the offence of extortion, which is defined in Section 383 IPC and both the sections are reproduced below: Section 383. Extortion: Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion." Section 383. Punishment for extortion: Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both. 11. In the instant case, on the facts found, I have no doubt in my mind that all the ingredients of Section 383 IPC have been proved to the hilt by the prosecution. Admittedly, the Appellant was convicted under Section 384 IPC without framing any specific charge against him on this count. He was initially charged with and tried under Section 364(A) IPC. Since serious grievances have been made by the Learned Counsel for the Appellant in this behalf, it may be appropriate to deal with this aspect of the matter in detail. Section 222 Code of Criminal Procedure deals with the provision where the offence proved is included in the offence charged. Although the expression "minor offence" is not defined in the Code, it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence. At this stage, it may be noted that whereas the offence of Section 364(A) IPC is punishable with death or imprisonment for life, the offence of Section 384 IPC is punishable with imprisonment of either description for a term, which may extend only to three years, or with fine, with both. At this stage, it may be noted that whereas the offence of Section 364(A) IPC is punishable with death or imprisonment for life, the offence of Section 384 IPC is punishable with imprisonment of either description for a term, which may extend only to three years, or with fine, with both. The crucial words in Section 222 Code of Criminal Procedure are - "a combination of some only of which constitutes a complete minor offence and such combination is proved; but the remaining particulars are not proved." The legal position has been clearly explained by the Rajasthan High Court in Anil Kumar and Anr. v. State of Rajasthan, 1992 Cri. L.J. 3637 "The term, "minor offence" has to be interpreted in its ordinary sense and not technical sense. The test is not the gravity of punishment. When a person is charged with an offence, consisting of several particulars and if all the particulars are proved, then it will constitute the main offence, while if only some of those particulars are proved and their combination constitutes a minor offence, the accused can be convicted of the minor offence, though he was not charged with it. Thus, a minor offence within the meaning of Section 222, Code of Criminal Procedure would not be something independent of the main offence or any offence merely involving lesser punishment. The minor offence should be composed of some of the ingredients constituting the main offence and be a part of it. In other words, the minor offence should essentially be a cognate offence of the major offence and not entirely a distinct and different offence, constituted by altogether different ingredients. 12. Judging from the aforesaid principles, it becomes clear that Section 364(A) IPC and Section 384IPC cannot be said to be distinct and different offences. On the contrary, they are related offences in much as some of the essential ingredients of both the sections are common. In the instant case, the offence of Section 364(A) IPC consists of the following particulars/ingredients, namely (i) the accused kidnapped/abducted a person; (ii) the accused kept such person under his detention; (iii) the accused threatened to cause death or hurt to such person or caused death or hurt to him; (iv) the accused did commit so to compel, among Ors., any other person and (v) the accused compelled, among Ors., to pay a ransom. The essential ingredients of Section 383 IPC are- (i) intentionally putting a person in fear of injury to himself or Anr. and (ii) dishonestly inducing the person so put in fear to deliver to any person any property or valuable security. The term "dishonestly" means intending to make either any wrongful gain to himself or to make any wrongful loss to Anr.. A comparative reading of the two sections will undoubtedly reveal that a combination of ingredients (iii), (iv) and (v) of Section 364 (A) IPC, certainly constitute a complete offence of Section 383 IPC. To hold that Section 384 IPC, is not a minor offence in relation to Section 364(A) IPC, will be taking hyper-Technical view of a procedural law, and as such, I hod that Section 384 IPC is not a minor offence in relation to Section 364 (A) IPC and that when the prosecution has proved to the hilt the involvement of the Appellant for the offence of Section 384 IPC, his conviction by the Learned Addl. Sessions Judge under this section without framing any charge cannot be faulted with. Resultantly, I do not find any illegality in the conviction of the Appellant under Section 384 IPC. 13. Having said that, one aspect of the matter which disturbs my mind is the direction passed by the Trial Court upon the Appellant for payment of Rs. 2,50,000/- as compensation to the family of the victim. There is no dispute at the bar that the Appellant was not given an opportunity of hearing by the Trial Court before directing him to pay the compensation. No doubt, Section 357(3) Code of Criminal Procedure empowers a Criminal Court to order the accused person to pay, by way of compensation, such amount as may be specified in the order, to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. However, the Apex Court in Mangilal v. State of M.P. 2004 SCC 447 has held: An opportunity of hearing has to be granted before directing payment of compensation under Section 357(4) Code of Criminal Procedure and that if the appellate Court intends to award compensation, it must grant an opportunity of hearing so that the relevant aspects like the need to award compensation, capacity of the accused to pay and several other relevant factors can be taken note of. The Apex Court, therefore, set aside the direction therein relating to the payment of compensation by the accused Appellant and remitted the matter to the High Court. At the same time it also directed the Trial Court to grant an opportunity to the accused Appellant and adjudicate upon the said question particularly relating to the liability of the Appellant only since Ors. are said to have already paid the respective amount. Now, ft the Appellate Court is also under an obligation to give an opportunity of hearing to the accused Appellant before passing an order under Section 357(4) Code of Criminal Procedure, I do not see why the Trial Court should not also afford an opportunity of hearing to the Appellant before directing him to pay a compensation of Rs. 2,50,000/-. Having failed to give an opportunity of hearing to the Appellant, the Learned Addl. Sessions Judge has violated the principles of natural justice and the impugned judgment cannot be sustained in law. 14. For what has been stated above, this appeal is partly allowed. The impugned judgment of conviction and sentence of imprisonment upon the Appellant is hereby sustained. The Appellant, who is now on bail, shall immediately surrender to his bail bond and serve out the remaining period of his sentence. The impugned judgment in so far as it directed the Appellant to pay compensation of Rs. 2,50,000/- is accordingly set aside. The matter is accordingly remanded to the Trial Court, which shall grant an opportunity of hearing to the Appellant and thereafter take a decision on the liability of the Appellant to pay the compensation and also on the quantum of compensation payable by him to the family of the victim. The impugned judgment is modified only to the extent, indicated above.