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2012 DIGILAW 754 (MP)

Rambabu @ Chhotu @ Sunil v. State of M. P.

2012-07-26

BRIJ KISHORE DUBE, S.K.GANGELE

body2012
JUDGMENT Dube, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 2.6.2008 passed by the learned Special Judge, Datia in Special Case No.23 of 2007 (State of Madhya Pradesh v. Mohan Singh alias Lakhu Dau and others), convicting the appellant under section 364A of IPC read with section 13 of the Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 and thereby sentencing him to suffer rigorous imprisonment for life with fine of Rs.10,000/-, in default of payment of fine to suffer additional two years rigorous imprisonment, the appellant has preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. Prosecution story, in brief, may be narrated as under : (i) That, on 4.12.2006 the abductee, Badam Singh (PW2) went tothe forest for cutting of wood but did not return back, therefore, PW1 Batari, father of the abductee reported the matter in the Police Station, Dirolipar on 5.12.2006 at 10:45 which was recorded at Roznamcha Sanha No.115 dated 5.12.2006. The matter was investigated; (ii) That, during investigation, it was revealed that 6-7 armed miscreants abducted, Badam Singh, hence, FIR (Ex.P-7) under sections 365 of IPC and 11 and 13 of the Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 was registered on 6.12.2006 against 6-7 unknown persons. The spot map (Ex.P-1) was prepared. At the time of this occurrence, the accused persons had also abducted another two persons, namely; Pan Singh (PW4) and Ramjilal (PW5), however, by hook or crook, they escaped from their clutches. The police interrogated Pan Singh and Ramjilal. On 23.12.2006, the police rescued Badam Singh in an encounter between police and dacoits, thereafter, he was sent to for medical examination at Primary Health Centre, Seondah. His statement was also recorded. Thereafter, offence under section 365 of IPC was amended to section 364A of IPC against the accused persons; and (iii) That, the Investigation Officer after recording the statements of the witnesses who were acquainted with the facts of the offence, arrested the accused persons. On completion of the investigation, a charge-sheet was filed against six accused persons including the appellant before the Special Court. 3. The co-accused, Anup Singh could not be arrested, therefore, he was declared absconder. 4. On completion of the investigation, a charge-sheet was filed against six accused persons including the appellant before the Special Court. 3. The co-accused, Anup Singh could not be arrested, therefore, he was declared absconder. 4. The learned Special Judge on the basis of the material placed on record framed charge punishable under sections 364A and 323, in alternate 323/149 of IPC read with section 13 of the Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 against all the accused persons including the appellant. All the accused denied the charge and claimed to be tried. The defence of the accused including the present appellant is of false implication and the same defence they set forth in their statements recorded under section 313 of the Code of Criminal Procedure, 1973. 5. To bring home the charge, the prosecution has examined as many as 8 witnesses and placed Exhibits P-1 to P-17, the documents on record. The accused-appellant has not examined any witness in his defence. 6. The lelarned trial Judge on the basis of evidence placed on record came to hold that charge under section 364A, IPC read with section 13 of the Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 has been proved against the accused-appellant as a result of which he has been convicted and passed the sentence as mentioned hereinabove, however, he has been acquitted from the charge under section 323/149 of the IPC. The learned trial Court after close scrutiny of the evidence came to hold that the charge under section 364A, IPC read with section 13 of the Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 and under section 323/149 of the IPC is not proved against the co-accused, Mohar Singh alias Lku Dau, Prakash alias Ramprakash, Pappu alias Ramsiya and Nandkishore alias Nandu and, eventually, acquitted all of them from the charge. 7. The State of Madhya Pradesh had not filed any appeal against the acquittal of the co-accused persons as well as the acquittal of the appellant, hence, the case has attained finality in respect of the acquittal of the co-accused persons as well as acquittal of the appellant under section 323/149 of the IPC. 8. In this manner, this appeal has been preferred by the appellant assailing the judgment of conviction and order of sentence passed by the learned trial Court. 9. 8. In this manner, this appeal has been preferred by the appellant assailing the judgment of conviction and order of sentence passed by the learned trial Court. 9. Legality and propriety of the impugned judgment of conviction has been challenged by the appellant on the ground of mis-appreciation of the evidence on record. Shri D.R. Sharma, learned counsel for the appellant has submitted that there was no cogent evidence to establish the ingredients of offence under section 364A, IPC read with section 13 of the Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981. The demand of ransom has not been proved by the prosecution. Appellant was not subjected to the test identification during the investigation. Identification of the accused was made for the first time in Court, therefore, conviction cannot be based upon such identification. The learned trial Court erred in convicting the appellant, hence, the appeal be allowed and the appellant be acquitted from the charge. 10. An alternate submission has also been put-forth by the learned counsel for the appellant that if this Court comes to the conclusion that Badam Singh was abducted, since there is no evidence of the demand of ransom, at the most appellant could be convicted under section 365 of IPC and, therefore, his conviction be altered from sections 364A to 365 of IPC and sentence may be reduced to the period alreadyundergone by the appellant as he has already undergone 7 years of the sentence. 11. On the contrary, Kumari Sudha Shrivastava, learned Panel Lawyer has supported the impugned judgment and finding arrived at by the learned trial Court and submitted that the conviction in question is well merited. 12. In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record. 13. Section 364A of IPC deals with ‘kidnapping or abducting for ransom, etc.’ on while explaining its ingredients, the apex Court recently in Akram Khan v. State of West Bengal [ (2012)1 SCC 406 ], has observed in para No.28 as under : “In Malleshi v. State of Karnataka [ (2004)8 SCC 95 ], while considering the ingredients of section 364A of IPC, this Court held as under : “12. 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.” 14. PW1, Batari, father of the abductee, Badam Singh has deposed that on the date of the incident at about 10:00 a.m., his son, Badam Singh went to the forest for collecting wood but did not return back, therefore, he went to the Police Chowki, Magroli of Police Station, Dirolipar and lodged Gumshudgi report. By proving Gumshudgi report (Ex.P.-9), ASI, P.D. Dohare, PW7 deposed that on the basis of information given by Batari, he has recorded the missing person report (Ex.P-9) on 5.12.2006 at Police Chowki, Magroli regarding missing of Badam Singh. 15. Batari, PW1, further deposed that after some time, he came to know that his son has been abducted by the dacoits. After 22-23 days of the date of abduction, his son, Badam Singh was got released from the dacoits by the police in an encounter, took place between the police and the dacoits, then, Badam Singh returned back home and narrated the incident by stating that dacoits, Anup Mukhya had abducted him for ransom and dacoits used to beat him for realising ransom. 16. Abductee, Badam Singh (PW2) categorically deposed that on the date of the incident at about 9:00 a.m., he along with his Bhanja, Keshav went to the forest of Gumanpura for collecting wood whereat dacoit, Anup Gurjar and his accomplices including the present appellant, Rambabu, total seven in number armed with weapons (firearms) came and asked him to provide food, then, he sent his Bhanja, Keshav to his house for bringing the same. Keshav went and brought food from his house, which was taken by the dacoits, thereafter, they forcibly carried him with them in the forest of Singhpura while he was being carried by the dacoits, he was beaten by them and they demanded ransom of Rs.5,00,000/-. He told them that such huge amount cannot be arranged by his father as they are poor and having only 7 Bighas of land. He told them that such huge amount cannot be arranged by his father as they are poor and having only 7 Bighas of land. Even then, he was being carried by the dacoits, on the way, they have also abducted, Pan Singh and Ramjilal from another jungle (forest) and carried them also with them. However, when he and all the miscreants (dacoits) fell asleep at night, the abductees, Pan Singh and Ramjilal by noticing the opportunity fled away from the jungle. PW2, Badam Singh has specifically deposed that the dacoits including the accused, Rambabu demanded ransom of Rs.5,00,000/- for obtaining his release.He was beaten and confined in the forest (jungle) for 20 days under threat for realising of ransom. However, after 20 days of his abduction, there was an encounter between the police and the dacoits in the jungle in which dacoits managed to escape while he was got released by the police and brought him to Seondah. Nothing could be elicited in his cross-examination so as to suggest that he was interested in securing the conviction of the appellant on absolutely false grounds. 17. On scanning the testimony of PW4, Pan Singh and PW5, Ramjilal, it is clear like a noon day that on 4.12.2006, these two persons were grazing their cattle in the Mahadev jungle from where these two persons were abducted by Anup Singh and Rambabu and their accomplices who were armed with fire-arms for ransom. At that juncture, one abductee, Badam Singh was also with them (abductors). All the abductees were taken by the dacoits in the jungle of Singhpura. However, they (Pan Singh and Ramjilal) fled away from the clutches of dacoits at night by taking the opportunity while Badam Singh was remained with them. PW4, Pan Singh specifically stated that he was well-known to the accused, Rambabu as he used to come to his village. 18. The testimony of PW2, Badam Singh has been corroborated by the aforesaid testimony of other abductees, namely; PW4, Pan Singh and PW5, Ramjilal. 19. We do not find any substance in the contention of Shri D.R. Sharma, learned counsel for the appellant that demand of ransom has not been proved. 18. The testimony of PW2, Badam Singh has been corroborated by the aforesaid testimony of other abductees, namely; PW4, Pan Singh and PW5, Ramjilal. 19. We do not find any substance in the contention of Shri D.R. Sharma, learned counsel for the appellant that demand of ransom has not been proved. On going through the statements of PW1, Batari and PW2, Badam Singh, we find that Badam Singh has been abducted for ransom and the demand of ransom was clearly conveyed to the victim, PW2, Badam Singh by the abductors. He was even conveyed the amount of ransom, i.e., Rs.5,00,000/-. In this regard, we may profitably place reliance on the decision of the apex Court in the case of Malleshi v. State of Karnataka [ (2004)8 SCC 95 ], wherein it has been held as under : “.... It cannot be laid down as a straitjacket formula that the demand for payments has to be made to a person who ultimately pays. By way of illustration it can be said that a rich businessman is abducted. He is told that for his release his family members have to pay a certain amount of money; but money actually belongs to the person abducted. The payment for release is made by the persons to whom the demand is made. The demand originally is made to the person abudcted or kidnapped. After making the demand to the kidnapped or abducted person merely because the demand could not be conveyed to some other person, as the accused is arrested in the meantime, does not take away the offence out of the purview of section 364A. It has to be seen in such a case as to what was the object of kidnapping or abduction. The essence of abduction as noted above is causing to stay in isolation and demand for ransom. The demand in the present case has already been made by conveying it to the victim. In Netra Pal v. State (NCT of Delhi) [2001 Cri.LJ 1669 (Del.)], the High Court noted that there was no demand to pay. The factual position in that case as noted above is that the victim was a child to whom no demand could have been made. In that background the High Court took the view that section 364A has no application as no demand had been communicated. The position factually is different here. The factual position in that case as noted above is that the victim was a child to whom no demand could have been made. In that background the High Court took the view that section 364A has no application as no demand had been communicated. The position factually is different here. Ultimately the question to be decided is “what was the intention? Was it demand of ransom?” There can be no definite manner in which demand is to be made. Who pays the ransom is not the determinative fact, as discussed supra.” 20. It is true that the appellant, Rambabu was not subjected to test identification parade during the investigation. According to Badam Singh (PW2), he has identified him (Rambabu) for the first time during his deposition before the Court. On going through the testimony of PW2, Badam Singh, we find that Badam Singh had seen him for the first time when he had provided food to him in the jungle, thereafter, Badam Singh was being carried by him. Further, Badam Singh was remained for a considerable long period, i.e., about 20 days with the appellant and his associates. Badam Singh clearly denied the suggestion put to him by the learned counsel for the appellant during his cross-examination that Rambabu who had abducted him (Badam Singh) was not the same Rambabu who is present in the Court during his deposition. Apart from that, the testimony of PW4, Pan Singh and PW5 Ramjilal reflects that accused, Rambabu has also abducted Badam Singh. In the dock, all the abductees, PW2, Badam Singh, PW4, Pan Singh and PW5, Ramjilal identified the appellant correctly and according to us, this amounts to substantive piece of evidence against the appellant, Rambabu, therefore, non-holding of test identification parade during the investigation does not affect the evidence of the abductees. In this context, we rely upon the decision of the apex Court in the case of Sidhartha Vashilsht alias Manu Sharma v. State (NCT of Delhi) [ (2010)6 SCC 1 ]. 21. So far as the contention of the learned counsel for the appellant that there is no evidence that any amount of ransom was paid, therefore, the offence was not constituted, according to us, looking to the scope of section 364A of IPC, if the demand of ransom was made, it would be sufficient to hold that the offence under section 364A of IPC is made out. 22. We have also gone through the reasonings assigned by the learned trial Court convicting the appellant under section 364A of IPC and we do not find any infirmity in it. The judgment is based on correct appreciation of the evidence based on record and further we do not want to deviate ourselves from the reasonings recorded by the learned trial Court. Hence, we extend our stamp of approval of the reasonings, findings, conviction and sentence recorded and awarded by the learned trial Court. 23. Ex consequentia, this appeal is found to be bereft of any substance and the same is hereby dismissed.