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Madhya Pradesh High Court · body

2008 DIGILAW 1356 (MP)

Farid v. State of M. P.

2008-11-20

S.L.KOCHAR, S.R.WAGHMARE

body2008
JUDGMENT Kochar, J. -- 1. The appellants-accused persons stood convicted under sections 364A and 347 of the Indian Penal Code and each is sentenced to suffer imprisonment for life and fine of Rs. 1,000/-, in default of payment of fine to suffer additional S.1. for two months and R.1. for one year and fine of Rs. 500/-, in default of payment of fine to suffer additional S.1. for one month respectively, with direction to run both the substantive jail sentences concurrently. Being dissatisfied by this judgment of conviction and order of sentence, the appellants have come up in appeal under section 374 (2) of the Code of Criminal Procedure, before this Court. 2. According to the prosecution case, on 19.12.1997 in the evening at 7:00 p.m. Gautam son of Bhanwarlal, resident of Anjar had gone to the office of Life Insurance Corporation of India, Barwani for some work. When he was returning back and reached near the establishment of Sarla Granite, appellants Farid, Nasir, Abid and Jakir reached near him in a jeep. They stopped his motor cycle and forcefully got him inside the jeep. Gautam was taken in the jeep in a house situated on a hill in Sendhwa town. It is said that Gotu Bafna, nephew of Rakhabchand (not examined) and Rakhabchand, son-in-law of PW 4, Bhanwarlal, father of complainant Gautam was owing twenty lacs rupees to Gurvinder and Shailendra. At the instance of appellants Gurvi11der and Shailendra, the aforementioned four appellants abducted Gautam, thereafter, demanded thirty lacs rupees on telephone from Bhanwarlal (PW 4), father of Gautam and also warned him not to inform the Police. Bhanwarlal reported the matter to Barwani as well as Anjar Police and police force along with Mahendra (PW 3), brother of Gautam proceeded towards Sendhwa. Abducted person Gautam expressed his desire to talk on telephone upon which appellants Nasir and Jakir took him to STD Booth situated near hotel Tashkand. From STD Booths, Gautam had talked with his family members. While coming out of the STD Booth, Gautam saw his brother Mahendra in police-jeep and he rushed towards him. At that juncture, appellants Nasir and Jakir ran away on seeing the police force. Gautam was taken by police force to Sendhwa where he disclosed about the entire incident to police as well as to his brother Mahendra. While coming out of the STD Booth, Gautam saw his brother Mahendra in police-jeep and he rushed towards him. At that juncture, appellants Nasir and Jakir ran away on seeing the police force. Gautam was taken by police force to Sendhwa where he disclosed about the entire incident to police as well as to his brother Mahendra. On completion of investigation by Barwani Police, in whose jurisdiction, offence was committed, the police filed charge-sheet under section 365 and 347 of the Indian Penal Code against the appellants. 3. The learned Magistrate was of the opinion that the offence under section 364-A of the Indian Penal Code was also made out against the appellants on the basis of material available in the charge-sheet and this offence is triable by Sessions Court, hence committed the case for trial to the Court of Session. 4. Appellants refuted the charges and pleaded innocence, therefore, they were put to trial. They did not examine any witness in defence whereas the prosecution has examined as many as seven witnesses and adduced 13 documents in order to establish its case against the appellants. Learned trial Court, finding the appellants guilty, convicted and sentenced them as mentioned herein-above. 5. Learned counsel for the appellants has submitted that even if complete prosecution case is accepted, no offence is made out against appellants No.5 Gurvinder alias Kake, and No.6 Shailendra alias Bade and against four remaining appellants, the offence at the most would fall under section 365 and 347 of the Indian Penal Code. Learned counsel has also submitted that there was a dispute over business transaction and the victim PW 2, Gautam has deposed in para 13 of his statement that he had very good relations with the appellants Gurvinder alias Kake and Shailendra alias Bade and even after the incident they were having visiting terms and were not having any kind of animosity. It is also stated by this witness that they have settled all the disputes relating to money and he had also filed an application for grant of permission to compound the offence. He also stated that prior to that also he had no strained relations with appellant No.5 Gurvinder alias Kake and also not having any enmity on the date of giving of statement in Court and he did not want to continue the prosecution. He also stated that prior to that also he had no strained relations with appellant No.5 Gurvinder alias Kake and also not having any enmity on the date of giving of statement in Court and he did not want to continue the prosecution. In the light of this statement of the victim, learned counsel has submitted that the offence punishable under section 364-A of the Indian Penal Code would not be made out, because abduction was not for any ransom, but for settlement of dispute and for that purpose, the victim was confined in a room. 6. Learned Dy. Advocate General Shri Desai, appearing for the State has supported the impugned judgment and finding arrived at by the learned trial Court. 7. Having heard learned counsel for the parties and after going through the statements of all the prosecution witnesses and the documentary evidence, we find substance in the arguments advanced by the learned counsel for the appellants. The victim and other witnesses, complainant PW 3, Mahendra Kumar and PW 4, Bhanwarial have stated that the victim PW 2, Gautam was abducted for the purpose of settlement of business dues between Rakhabchand and appellants Gurvinder and Shailendra and not for pure demand of money for releasing the victim Gautam. In this view of, the matter, the offence would not fall within the purview of section 364-A of the Indian Penal Code i.e., abduction with a view to demanding ransom. Ransom) is not defined in the Indian Penal Code and according to Black's Law Dictionary, meaning of 'ransom' is as follows: "The money, price, or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity." 8. In the light of dictionary meaning of ransom, we are of the considered view that Gautam (PW 2) was not abducted by appellants No.1 Farid, No.2 Nasir, No.3 Abid and No.4 Jakir for ransom, but he was abducted and wrongfully confined for settlement of business dispute and that has been settled and victim Gautam also filed an application for grant of permission to compound the offence before the trial Court. The offences punishable under sections 365 and 347 of the Indian Penal Code are not compoundable and before this Court, no application for grant of permission to compound the offences has been filed, but the statement of victim Gautam and filing of application before the trial Court can be taken into consideration for awarding the sentence to appellants No.1 to 4. 9. No offence is made out against appellant No.5 Gurvinder and Shailendra alias Bade, because they had not taken direct part in the incident of abduction and wrongful confinement and there is no evidence available on record except the statement of Gautam that appellants No.1 to 4 told him that they abducted him at the instance of appellant No.5 Gurvinder alias Kake and Shailendra alias Bade for setting the business dispute. It is well settled legal position that the statement of co-accused made before a witness is pot admissible against another co-accused. Apart from the bald statement of victim Gautam there is no other evidence on record with regard to disclosure by appellant Farid that they were acting at the behest of appellants No.5 Gurvinder and No.6 Shailendra. 10. Consequently, this appeal is allowed in part. Conviction and sentence of appellant No.5 Gurvinder alias Kake and No.6 Shailendra alias Bade are hereby set aside. They are on bail, their bail and surety bonds are discharged. Conviction of appellants No.1 Farid, No.2 Nasir, No.3 Abid and NO.4 Jakir for the offence punishable under sections 364A of the Indian Penal Code are hereby set aside, but they are convicted for the offence punishable under section 365 of the Indian Penal Code. Their conviction under section 347 of the Indian Penal Code is maintained. 11. On the question of sentence, learned counsel for the appellants has submitted that in view of amicable settlement between the appellants and the complainant and the fact that the appellants are first offenders as well as facing this prosecution since 1997, now they are having their established families consisting of wife, children and old parents and if they are sent to jail, their families would be uprooted and would face great hardship. In view of all these facts and circumstances of the case and looking to the age of these four appellants at the time of incident (Farid 22 years, Nasir 20 years, Abid 22 years and Jakir 24 years), we are of the opinion that ends of justice would be sub-served to sentence them to the period already undergone (Appellant No.1 Farid 119 days, No.2 Nasir 104 days, No.3 Abid 104 days and No.4 Jakir 30 days) under section 365 of the Indian Penal Code. Each of the appellants No.1 to 3 are also sentenced to pay a fine of Rs. 2,500/- for the offence under section 365 and Rs. 750/- under section 347 of the Indian Penal Code. In default of payment of fine under both sections, they shall suffer additional RI for two years and appellant No.4 Jakir shall suffer RI for two and a half years. All these four appellants are on bail. They are directed to appear before the trial Court on 30.1.2009 and deposit the amount of fine and on failure to comply with this direction, the trial Court is directed to take suitable action against these respondents and their sureties in accordance with law under intimation to this Court.